Berliner v. Colvin

Filing 21

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that the final decision of the Commissioner denying social security benefits is AFFIRMED. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by District Judge Ronnie L. White on 3/3/2015. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
LORI BERLINER,
Plaintiff,
v.
CAROLYNW. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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No. 4:13CV2070 RLW

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) for judicial review of Defendant's final
decision denying Plaintiffs application for Disability Insurance Benefits under Title II of the
Social Security Act. For the reasons set forth below, the Court affirms the decision of the
Commissioner.

I. Procedural History
On August 27, 2009, Plaintiff filed an application for Disability Insurance Benefits
alleging disability beginning January 1, 2008 due to knee pain, migraine headaches, asthma,
carpal tunnel syndrome, depression, high blood pressure, restless leg syndrome, and obesity.
(Tr. 102, 189-98) The application was denied, and Plaintiff filed a request for a hearing before
an Administrative Law Judge ("ALJ"). (Tr. 74-75, 102-10) On July 15, 2010, Plaintiff testified
before an ALJ. '(Tr. 51-67) On October 20, 2010, the ALJ determined that Plaintiff had not been
under a disability from January 1, 2008 through the date of the decision. (Tr. 79-90) Plaintiff
then filed a request for review, and on January 6, 2012, the Appeals Council remanded the case
to the ALJ for further proceedings. (Tr. 94-98) The ALJ held a supplemental hearing on May
14, 2012. (Tr. 29-50) On July 17, 2012, the ALJ again found that Plaintiff was not disabled.

(Tr. 9-24) The Appeals Council denied Plaintiffs request for review on September 10, 2013 .
(Tr. 1-3) Thus, the decision of the ALJ stands as the final decision of the Commissioner.

II. Evidence Before the ALJ
At the July 15, 2010 hearing before the ALJ, Plaintiff was represented by counsel.
Plaintiff testified that she lived in a house with her daughter, granddaughter, and two sons.
Plaintiff had a twelfth grade education but no vocational training. She previously worked as a
cashier and a manager, supervising about 10 people. Plaintiff also worked for Ronsick Oil
Company as a bookkeeper. While employed there, she also called customers, place orders, and
hired and fired employees. Plaintiff taught herself to use a computer but did take one online
computer course. She was self-employed in Internet sales from January to August of 2008. (Tr.
54-57)
Upon questioning by her attorney, Plaintiff testified that she had been diagnosed with
bipolar disorder by Paul Simon, D.O. Dr. Simon was not a psychiatrist, but he prescribed
Plaintiffs medications which included Cymbalta. Plaintiff stated that her bipolar disorder
caused her to be confused all the time. She felt "high" and also felt as though she were coming
out of her skin. She experienced these episodes about once a month. The episodes could last
between a half day and a couple of days. They also disrupted her sleep. Plaintiff stated that she
experienced panic attacks while driving. She further testified that she suffered from depression
since she was 22 years old. She sometimes did not want to get out of bed. Her depression
worsened after her second divorce. However, her symptoms became severe over the past yearand-a-half. Plaintiff was able to travel to Florida for her son's wedding. (Tr. 58-64)
Plaintiff saw a counselor, Rebecca, once every six weeks. However, Plaintiff stopped
seeing her three months prior to the hearing due to financial constraints. Plaintiff testified that

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she was able to go to restaurants and take her kids to school. She enjoyed movies and was able
to shop and gamble. Plaintiff stated that she chose not to spend her money on counseling
because she did not think it helped, even though her doctors recommended counseling. Plaintiff
acknowledged that she should take necessary steps to get better. (Tr. 64-65)
At the close of the hearing, the ALJ noted that she was keeping the record open to obtain
records from Dr. Simon and Rebecca. The ALJ also summarized that the record indicated that
Plaintiff was doing better on new medication. She had money for treatment but chose not to
receive counseling. Plaintiff was able to attend her son' s wedding in Florida, and she was wellgroomed and obese. She possessed computer skills and had managed employees. The ALJ also
noted inconsistent dates in the record. (Tr. 66-67)
Counsel also represented Plaintiff during the supplemental hearing. At the hearing held
on May 14, 2012, Ms. Gonzales, a Vocational Expert ("VE") also testified. Upon questioning by
the ALJ, Plaintiff stated that she had a 12th grade education and took a couple of college
computer classes. Although Plaintiff reported being self-employed in 2007 and 2008, she did not
recall such employment. (Tr. 29-33)
With regard to past employment, Plaintiff testified that she previously worked for Par Oil
Company managing gas stations. She managed 6 to 8 employees that worked under her.
Plaintiff also did the paperwork for the stations, first manually and later using a computer. She
performed the same type of work for Ronsick Oil Company. Other previous jobs included
working for Mosaic Sales Solutions, demonstrating printers and Gatorade Company, observing
whether stores properly displayed Gatorade. Plaintiff did not recall what jobs she performed for
Lawrence Service Company, Premium Retail Services, Keystone Marketing, Advantage Sales,
King Sony Member, and Retail Marketing Professionals. She indicated that she worked

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"mystery shop" jobs, checking to see whether the retail employees were properly performing
their jobs. Plaintiff also worked as a home health aide. She had no training, but she helped her
father walk, speak, and make business calls on behalf of her father' s gas station and auto repair
center. Her father' s managers and accountant performed the paper and tax work. Plaintiff did
not attend any classes since 2008 other than a driving class for a DUI. (Tr. 34-39)
Plaintiffs counsel also questioned Plaintiff regarding her physical and mental
impairments. Plaintiff testified that she was diagnosed with arthritis, bursitis, asthma, depression,
and bipolar disorder. She weighed 240 pounds. The ALJ noted that Plaintiffs mental health
doctor, Dr. Simon, diagnosed depression but J?.Ot bipolar disorder. Plaintiff stated that she had
been seeing Dr. Simon consistently since before 2008 but that she refused to take prescription
psych medications due to the cost and lack of insurance. Plaintiff amended her testimony to state
that she does not take her medication as prescribed because the prescriptions are too expensive.
Dr. Simon had not prescribed psych medication but gave her other, free medications to try.
Plaintiff could not recall the names of the medications. Plaintiff did not see Dr. Simon every
month. She stated that he would see her once every month to three months. Although she stated
that she saw Dr. Simon on a consistent basis, the ALJ noted a two-year gap in treatment as well
as several no-shows. Plaintiff testified that the records were mistaken. (Tr. 39-43)
Plaintiff further testified regarding her asthma. She stated that she had trouble breathing
when going up steps or going outside when it was cold. She used an inhaler but sometimes
required steroid shots in the winter or summer when her breathing was worse. Plaintiff saw Dr.
Belancourt for asthma. The ALJ noted that Dr. Belancourt completed a residual functional
capacity assessment but provided no clinical records in support. In addition, James Anthony,
physical therapist, produced an assessment with no supporting physical therapy records. The

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ALJ further noted that she needed clinical records from Jan Habreen and an unnamed doctor who
provided psychiatric treatment. (Tr. 43-44)
The VE also testified at the hearing. Ms. Gonzaies first questioned the Plaintiff regarding
her work as a convenience store clerk. Plaintiff stated that she stocked shelves, ran the cash
register, hired and fired employees, and placed orders. The VE classified Plaintiffs past work
experience and transferable skills. Plaintiff worked as a convenience store clerk, which was light
and unskilled; a retail manager, which was light and skilled; a telemarketer, which was sedentary
and semiskilled; a stocker, which was heavy and semiskilled; a merchandise displayer, which
was medium and semiskilled; a demonstrator, which was light and semiskilled; and a home
health aide, which was medium and semiskilled. Transferrable skills included clerical,
management, supervisory, computer, and sales. (Tr. 44-46)
The ALJ asked the VE to assume an individual limited to light exertional work. She
should avoid fumes, odors, dust, and gases and could occasionally be exposed to extreme cold.
Due to mental impairments, the individual was limited to unskilled work. The VE testified that
Plaintiff would be unable to perform any past work because convenience store clerks were
exposed extreme cold in the coolers. However, because the individual could occasionally be
exposed to extreme cold, Plaintiff would be able to perform her past work as a convenience store
clerk. Further, a hypothetical individual with the same educational skills, vocational skills, and
residual functional capacity could also perform work as an order caller, mail sorter, and cashier.
The VE stated that there was no conflict between the vocational evidence she presented and the
information in the Dictionary of Occupational Titles ("DOT"). (Tr. 46-48)
Plaintiff's counsel also questioned the VE. Counsel added the limitation of inability to
complete a normal workday or work week without interruptions from psychologically based

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symptoms. In light of this limitation, the VE testified that the person would be unable to work
competitively. She specified that if a person missed work more than two days a month, she
would be unable to sustain employment. Further, if physical limitations prevented an individual
from working two hours at a time, with scheduled breaks in between, she would not be able to
work. At the end of the hearing, the ALJ left the record open for counsel to submit tax records
and medical records to support the residual functional capacity assessments. (Tr. 48-50)
In a Disability Report - Adult, Plaintiff reported that she weighed 241 pounds and
measured 5 feet, 7 inches. Her conditions that limited her ability to work included knee pain,
migraine headaches, asthma, carpal tunnel syndrome, bipolar disorder, depression, restless leg
syndrome, high blood pressure, and obesity. Her physical impairments limited her physical
abilities and mobility. She had problems gripping, sitting in one position, standing for long
periods, concentrating, interacting with others, and coping with stress. She stopped working on
December 15, 2008. (Tr. 231-32)
Plaintiffs uncle, Robert McCullough, completed a Function Report - Adult - Third
Party. He described Plaintiffs day as helping to get kids to school, going back to bed,
showering, watching TV, taking care of kids for the evening, eating, and returning to bed.
Plaintiff was able to feed her pets with the help of her kids. All she wanted to do was sleep.
Plaintiff did not bother bathing or dressing because she did not go anywhere. She ate anything,
anytime, because she was constantly hungry. Plaintiff had problems making decisions. She
needed reminders to take medication because she forgot occasionally. She did not prepare meals
and only ate junk food. Plaintiff performed no household chores because she had no motivation.
Mr. McCullough tried to encourage Plaintiff to do things. Plaintiff was unable to breathe, bend,
or walk without difficulty. She went outside when necessary and was able to drive. In addition,

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Plaintiff could shop in stores, by mail, _ nd online. She could not handle money. Mr.
a
McCullough further reported that Plaintiff experienced mood changes that affected her decisions.
Plaintiff enjoyed sleeping, watching TV, and shopping. She attended her children' s activities
and church. Mr. McCullough opined that Plaintiffs conditions affected her ability to stair climb,
squat, kneel, bend stand, complete tasks, remember, and concentrate. She could walk only 100
feet before needing to rest for 10 minutes. Plaintiff was forgetful, and her ability to concentrate
varied day to day. Plaintiff could get along with authority figures, but she was stubborn.
Plaintiff did not handle stress or changes in routine well. (Tr. 264-270)
In a Disability Report - Appeal, Plaintiff stated that she needed to see a psychologist
because of major mood swings. She also had gallstones. Plaintiff was experiencing increased
rage, forgetfulness, and sleep. She was diagnosed with bipolar disorder since her last disability
report. Plaintiff received counseling from Rebecca and psychiatric treatment from Dr. Wang and
Dr. Simon. She reported that she had trouble getting ready for appointments and experienced
everyday struggles. (Tr. 287-92)

III. Medical Evidence
On January 8, 2007, Plaintiff saw Linda Picker, RN, MSN, Adult Nurse Practitioner, for
chronic health problems. Plaintiff reported that Wellbutrin did not help with depression and
anxiety. Nurse Picker also noted that Plaintiff possibly had strep throat. She gave samples of
Cymbalta and prescribed Amoxicillin. On February 15, 2007, Nurse Picker noted that Plaintiffs
depression was improving on Cymbalta. She also assessed hypertension; hyperlipidemia;
bilateral carpal tunnel syndrome, right greater than left; acne; asthma; and allergic rhinitis.
Nurse Picker prescribed .acne swabs and gave Plaintiff samples of Cymbalta. (Tr. 343-44)

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Plaintiff first saw Dr. Beth Zimmer on October 15, 2007. Plaintiff reported being
hypertensive for years, with her blood pressure increasing slowly. She also reported a lifetime
history of depression and stated she had been on every antidepressant. Plaintiff had been on
Cymbalta for the past year, which seemed to work for her depression and anxiety. Dr. Zimmer
noted that Plaintiff was alert, active, obese, and in no acute distress. She assessed hypertension,
not quite controlled; depression with possible bipolar component; asthma that was stable;
migraine headaches; and multiple stressors. Dr. Zimmer refilled Plaintiffs medications and
encouraged her to work on her weight management and blood pressure. (Tr. 315)
Plaintiff presented to SSM DePaul Hospital on November 7, 2007 for a syncope episode
while gambling in a casino. She reported that her hands and legs tingled, and she felt cold.
Plaintiff also reported that she was dizzy and felt as though she would pass out due to upper
abdominal pain. Plaintiff was admitted to the hospital for further testing. On discharge, Dr.
Fatima A. Khan assessed probable vasovagal syncope secondary to back pain and abdominal
pain, with secondary diagnoses of hypertension, anxiety disorder, depression, and asthma. Dr.
Khan advised Plaintiff to continue her medications, exercise regularly, lose weight, and drink
adequate fluid. (Tr. 361-93)
Plaintiff returned to Dr. Zimmer for a follow-up exam on November 16, 2007, after her
ER visit. Plaintiff reported that Cymbalta no longer worked and that much of her physical
symptoms were provoked by anxiety. Dr. Zimmer assessed history of depression with a strong
family history of bipolar disorder; history of migraine headaches; history of asthma; and near
syncope, possibly aggravated by a dual dosing of Enalapril. Dr. Zimmer also recommended a
psychiatric consultation and a prescription for Topamax. However, Plaintiff indicated that she
was losing her insurance in December and had no extra cash. (Tr. 313-14)

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Plaintiff followed up with Dr. Zimmer on March 19, 2008 and reported she still felt
severely depressed. She noted she would often spend most of the day asleep and eat one meal a
day. Plaintiff believed that Cymbalta helped but reported continued problems with her asthma,
which caused her to become panicky. Dr. Zimmer assessed hypertension with borderline
control, asthma, and probable bipolar disorder with depression. Dr. Zimmer prescribed Topamax
and increased Plaintiffs Cymbalta dosage. Although Plaintiff had been able to extend her
insurance, she was unsure how long it would be extended and was therefore reluctant to see a
psychiatrist. (Tr. 311-12)
When Plaintiff returned to Dr. Zimmer on July 8, 2008, she complained of multiple
medical problems but reported doing better with Topamax. Plaintiff noted that to her she still
had some issues and had been under significant stress. Her asthma seemed stable with the
current regimen. Dr. Zimmer assessed bipolar disorder, stable; and hypertension. {Tr. 309)
Dr. Zimmer next saw Plaintiff on March 30, 2009 and noted that Plaintiff was under much stress.
She also reported paranoi.a while driving; fear that a grandchild was going to fall ; and fear of
death and hospitals. Gambling and shopping released her stress. Plaintiff noted a manic episode
2 to 3 weeks ago. Dr. Zimmer diagnosed unspecified migraines, unspecified essential
hypertension, bipolar I disorder, and unspecified asthma. (Tr. 327)
Plaintiff returned to Dr. Zimmer on April 21 , 2009 for depression. She complained of
being overly sleepy, with a black cloud present but tolerable. Although she felt better with
Seroquel and was no longer seeing things, the Cymbalta wore off at the end of the day, and the
depression increased. On examination, Plaintiffs affect and behavior were normal. Dr. Zimmer
assessed bipolar disorder, stable. (Tr. 322-24) On April 30, 2009 Plaintiff reported improved
depression and no manic symptoms, but she did complain of somnol~nce and a 20 pound weight

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gam. Dr. Zimmer assessed major depression, bipolar disorder improving but with significant
weight gain, and knee pain. (Tr. 325-26)
Plaintiff saw Dr. Dunet Belancourt on June 17, 2009 for a general checkup as a new
patient. Dr. Belancourt noted a history of bipolar disorder. Plaintiff also reported carpal tunnel
of the bilateral hands, chronic urinary tract infections, knee pain, asthma, and migraine
syndrome. (Tr. 336) Plaintiff followed up with Dr. Belancourt on July 8, 2009 for bipolar
disorder and high blood pressure. (Tr. 337)
P. Simon, D.O., conducted a psychiatry initial evaluation on August 20, 2009. Plaintiff
complained of a history of bipolar disorder and depression. Plaintiffs general appearance was
appropriate, and the mental status examination was normal. Dr. Simon assessed bipolar affective
disorder with a GAF of 50. 1 He referred Plaintiff to counseling and prescribed medications. (Tr.
404-05)
Plaintiff returned to Dr. Belancourt on September 18, 2009 and reported having a lot of
discomfort in the chest area, as weil as confusion and memory lapses. Dr. Belancourt diagnosed
gallstones and bipolar disorder. (Tr. 439)
Dr. Paul Vatterott M.D. examined Plaintiff on October 19, 2009 on behalf of Disability
Determinations. He diagnosed anxiety and depression but did not have current information to
assess her ability to perform work-related functions. (Tr. 342)

1

Under the Diagnostic and Statistical Manual of Mental Disorders, a GAF score of 41 to 50
indicates "serious symptoms ... OR any serious impairment in social, occupational, or school
functioning (e.g., few friends, unable to keep a job)." Diagnostic and Statistical Manual of
Mental Disorders (DSM-IV-TR) 34 (4th ed. 2000). A GAF score of 51 to 60 indicates "moderate
symptoms ... OR moderate difficulty in social, occupational, or school functioning," and a GAF
score of 61 to 70 indicates "some mild symptoms ... OR some difficulty in social, occupational,
or school functioning ... but generally functioning pretty well, has some meaningful
interpersonal relationships." Id.
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Ricardo Mareno, Psy.D., completed a psychiatric review technique form on October 30,
2009. Dr. Mareno indicated Plaintiff had mild restrictions of activities of daily living; moderate
difficulties in maintaining social functioning; and moderate difficulties in concentration,
persistence, and pace. Dr. Mareno found Plaintiff partially credible. (Tr. 345-356) Dr. Mareno
also completed a mental residual functional capacity assessment and opined that Plaintiff would
be moderately limited in her ability to understand and remember detailed instructions; carry out
detailed instructions; maintain attention and concentration for extended periods; work in
coordination with or proximity to others without being distracted by them; complete a normal
workday and workweek, without interruptions from psychologically-based symptoms, and to
perform at a consistent pace without an unreasonable number and length of rest periods;.interact
appropriately with the general public; accept instructions and respond properly to criticism from
supervisors; get along with coworkers or peers without distracting them, or exhibiting behavioral
extremes; and maintain socially appropriate behavior and to adhere to basic standards of neatness
and cleanliness. Dr. Marino concluded Plaintiff was capable of performing simple repetitive
tasks, and he recommended a limited social environment to further reduce stress. (Tr. 357-59)
Plaintiff returned to Dr. Simon on October 22, 2009, December 10, 2009, February 25,
2010, March 23, 2010, April 22, 2010, and June 24, 2010. Dr. Simon diagnosed bipolar
affective disorder II and a GAF of 50 to 55. (Tr. 398-402) He completed a mental residual
functional capacity questionnaire on July 2, 2010, indicating that he started seeing Plaintiff bimonthly in August 2009. Plaintiffs diagnoses were bipolar type II; high cholesterol, high blood
pressure, asthma, and restless leg syndrome; and a GAF of 55. Plaintiff indicated that she felt
scatterbrained but Dr. Simon had no supporting objective findings. Signs and symptoms
included decreased energy; mood disturbance; difficulty thinking or concentrating; persistent

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disturbances in mood or affect; paranoid thinking or inappropriate suspiciousness; intense and
unstable interpersonal relationships and impulsive and damaging behavior; perceptual or
thinking disturbances; emotional liability; manic syndrome; easy distractibility; and sleep
disturbance. Dr. Simon indicated Plaintiff was unable to meet competitive standards of unskilled
work with regard to her ability to complete a normal workday or workweek without interruptions
from psychologically based symptoms. He opined that on average, Plaintiff would miss about 3
days of work per month. However, he found Plaintiffs mental abilities and aptitudes did not
otherwise preclude her from performing unskilled work, semi-skilled and skilled work, and
particular types of jobs. (Tr. 406-411)
Dr. Simon repeated the diagnosis of bipolar affective disorder II in bi-monthly progress
reports from September 3, 2010 through April 9, 2012. Plaintiff reported feeling angry and
experiencing anxiety attacks and crying spells. On September 29, 2011 , Plaintiff stated that she
felt a little better but still messed up. On April 9, 2012, she was better with decreased mood
swings, better sleep, and only occasional anger. Dr. Simon assessed a GAF of 65. (Tr. 412-22)
Plaintiff saw Dr. Belancourt on March 11 , 2011 and December 1, 2011 for complaints of
asthma. Dr. Belancourt prescribed prednisone. (Tr. 429, 431) Dr. Belancourt completed a
physical residual functional capacity on March 26, 2012 noting that Plaintiffs diagnoses
included: bipolar, mania, ADHD, extreme anxiety, sleep apnea, arthritis, gout, obesity, gall stone
pain, GERD, carpal tunnel syndrome, and chronic urinary tract infections. Her prognosis was
guarded. Dr. Belancourt opined that Plaintiffs symptoms constantly interfered with her
attention and concentration such that Plaintiff was incapable of even low stress jobs. Plaintiff
could only sit for 15 minutes at a time; stand for 10 minutes; sit less than 2 hours in an 8 hour
workday; and stand and/or walk less than 2 hours in an 8 hour workday. Plaintiff was limited by

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bilateral knee pain and required knee replacement surgery. Dr. Belancourt further opined that
Plaintiff needed a job that allowed shifting from standing, walking, or sitting at will. Further, she
required more than 10 unscheduled breaks in a day and needed to elevate the legs about half of
the time. He stated that 'P laintiff could never to lift or carry; rarely stoop or bend; and never
crouch, squat, climb ladders, or climb stairs. She had significant limitations with regard to her
ability to grasp, turn, twist, perform fine manipulation, and reach. Dr. Belancourt estimated
Plaintiff would miss more than 4 days of work per month due to severe bipolar mania and
problems with self-control, temper flares, paranoia, and lack of focus and attention. Dr.
Belancourt concluded Plaintiff was totally and permanently disabled due to her mental disorder,
and he did not believe she was capable of any occupational duties. (Tr. 456-60)
Plaintiff attended an occupational therapy session on April 4, 2012. (Tr. 449) The
therapist noted Plaintiff had significant confusion, emotional instability, and impaired cognition.
Plaintiff had left shoulder pain and pain in both knees. Plaintiff had a history of asthma and
experienced shortness of breath. The therapist further noted Plaintiffs mental state affected her
ability to perform home-making activities, maintain a job, and take care of her children. Plaintiff
was unable to make decisions and unable to keep time. (Tr. 449-50)
On April 18, 2012, physical therapist James Anthony completed a physical residual
functional capacity questionnaire, noting Plaintiff had left shoulder pain and bilateral knee pain.
The prognosis was poor. Depression affected Plaintiffs physical condition, with pain and other
symptoms being severe enough to interfere with her attention and concentration constantly. Mr.
Anthony opined Plaintiff was incapable for even low stress jobs. She was only able to sit for
about 10 to 15 minutes at one time; stand or walk for about 5 minutes; sit about 2 hours in an 8
hour workday; and stand and walk less than 2 hours in an 8 hour workday. Plaintiff needed

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periods of walking around during an 8 hour workday and required a position that allowed
shifting at will from sitting, standing, or walking. Mr. Anthony stated Plaintiff could
occasionally lift less than 10 pounds, rarely lift 10 pounds, and never lift 20 pounds or more.
Plaintiffs legs were to be elevated about 25% of the day. Plaintiff was never to twist, crouch,
squat, or climb ladders. She could rarely stoop, bend, or climb stairs. Mr. Anthony estimated
Plaintiff would miss about 4 days of work per month. She was further limited in her ability to
use her hands, fingers, and arms. Mr. Anthony opined that Plaintiff had been unable to work for
the past 3 years due to left shoulder and bilateral knee pain. (Tr. 451-55)
Dr. Paul Simon completed a mental residual functional capacity questionnaire on
November 18, 2012. Dr. Simon indicated Plaintiff had a bipolar dis9rder and a GAF of 65. She
experienced occasional anger, and her prognosis was fair. Plaintiffs signs and symptoms
included: pathological dependence, passivity or aggressivity; persistent disturbances of mood or
affect; intense unstable interpersonal relationships and impulsive and damaging behavior;
emotional !ability; deeply ingrained maladaptive patterns of behavior; sleep disturbance; and
history of multiple physical symptoms of several years duration beginning before age 30, that
caused an individual to take medicine frequently, see physicians often, and alter life patterns
significantly. Dr. Simon opined that with regard Plaintiffs mental abilities needed to do
unskilled work, she was unable able to meet competitive standards in completing a normal
workday/workweek without interruptions from psychologically-based symptoms; accepting
instructions/respond properly to criticism from supervisors; getting along with coworkers or
peers without unduly distracting them or exhibiting behavioral extremes; and dealing with
normal work stress. Dr. Simon estimated Plaintiff would miss about 2 days of work per month.
(Tr. 423-428)

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IV. The ALJ's Determination
In a decision dated July 17, 2012, the ALJ found that Plaintiff met the insured status

requirements of the Social Security Act through September 30, 2012. She had not engaged in
substantial gainful activity since her alleged onset date of January 1, 2008. The ALJ determined
that Plaintiffs severe impairments included bipolar disorder, hypertension, migraine headaches,
gallstones, and obesity. However, Plaintiff did not have an impairment of combination of
impairments that met or medically equaled the severity of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1. The ALJ noted that she had considered obesity in combination
with Plaintiffs other impairments and in the context of the overall evidence. The ALJ then
considered Plaintiffs mental impairments and found that they did not meet the criteria of
"paragraph B." The ALJ found that Plaintiff had no restriction in activities of daily living or in
social functioning; moderate difficulties in concentration, persistence, or pace; and no episodes
of decompensation of an extended duration. With regard to "paragraph C" criteria, the ALJ
determined that the objective evidence failed to meet such criteria. (Tr. 9-14)
The ALJ carefully considered the entire record and determined that Plaintiff had the
residual functional capacity ("RFC") to perform a range of light work. Specifically, Plaintiff
could lift and carry twenty pounds occasionally and ten pounds frequently; stand or walk for six
hours in an eight-hour workday; and sit for six hours in an eight-hour workday. The ALJ also
noted specific limitations, finding that Plaintiff must avoid occasional exposure to extreme cold;
avoid fumes, odors, dusts, and gases; and could understand, remember, and carry out at least
simple instructions and non-detailed tasks. The ALJ gave little weight to the opinions of Dr.
Simon, as they were inconsistent with his treatment notes and the treatment notes of other
treating physicians, as well as internally inconsistent. The ALJ also gave little weight to Dr.

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Belancourt' s opinion regarding Plaintiffs physical and mental impairments, as he did not
support his opinion with objective findings, he was not treating Plaintiff for psychiatric
impairments, and he relied on Plaintiffs subjective complaints to establish his opinion. With
regard to physical therapist Mr. Anthony, the ALJ gave his opinion no weight because Mr.
Anthony was not an acceptable medical source, and he examined Plaintiff only once. In short,
the ALJ noted that the medical evidence did not reflect treatment or objective tests to support
plaintiffs claims that her physical impairments were disabling. Further, the medical evidence
pertaining to Plaintiffs mental impairments supported the GAF findings of only mild to
moderate difficulties in functioning. (Tr. 14-21)
The ALJ determined that Plaintiff was capable of performing her past relevant work as a
convenience store clerk. The ALJ noted that this work did not require the performance ofworkrelated activities precluded by Plaintiffs RFC. The ALJ relied upon the VE' s testimony to find
that, in addition to retaining the ability to perform past relevant work, Plaintiff was capable of
performing other jobs in the national economy, including order caller, mail sorter, and cashier.
Thus, the ALJ concluded that Plaintiff had not been under a disability, as defined in the Social
Security Act, from January 1, 2008 through the date of the decision. (Tr. 21-24)

V. LegalStandards
A claimant for social security disability benefits must demonstrate that he or she suffers
from a physical or mental disability. The Social Security Act defines disability "as the inability
to do any substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than 12 months." 20 C.F.R. § 404.1505(a).

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To determine whether a claimant is disabled, the Commissioner engages in a five step
evaluation process. See 20 C.F.R. § 404.1520(a)(4). Those steps require a claimant to show: (1)
that claimant is not engaged in substantial gainful activity; (2) that she has a severe physical or
mental impairment or combination of impairments which meets the duration requirement; or (3)
she has an impairment which meets or exceeds one of the impairments listed in 20 C.F.R.,
Subpart P, Appendix 1; (4) she is unable to return to her past relevant work; and (5) her
impairments prevent her from doing any other work. Id.
The Court must affirm the decision of the ALJ if it is supported by substantial evidence.
42 U.S.C. § 405(g). "Substantial evidence means less than a preponderance, but sufficient
evidence that a reasonable person would find adequate to support the decision." Hulsey v.
Astrue , 622 F.3d 917, 922 (8th Cir. 2010). "We will not disturb the denial of benefits so long as

the ALJ's decision falls within the available zone of choice. An ALJ's decision is not outside the
zone of choice simply because we might have reached a different conclusion had we been the
initial finder of fact. " Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011) (citations and internal
quotations omitted). Instead, even if it is possible to draw two different conclusions from the
evidence, the Court must affirm the Commissioner' s decision if it is supported by substantial
evidence. See Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir.2000).
To determine whether the Commissioner' s final decision is supported by substantial
evidence, the Court must review the administrative record as a whole and consider: (1) the
credibility findings made by the ALJ; (2) the plaintiff's vocational factors ; (3) the medical
evidence from treating and consulting physicians; (4) the plaintiff's subjective complaints
regarding exertional and non-exertional activities and impairments; (5) any corroboration by
third parties of the plaintiff's impairments; and (6) the testimony of vocational experts when

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required which is based upon a proper hypothetical question that sets forth the plaintiffs
impairment. Johnson v. Chater, 108 F.3d 942, 944 (8th Cir. 1997) (citations and internal
quotations omitted).
The ALJ may discount a plaintiffs subjective complaints if they are inconsistent with the
evidence as a whole, but the law requires the ALJ to make express credibility determinations and
set forth the inconsistencies in the record. Marciniak v. Shala/a, 49 F.3d 1350, 1354 (8th Cir.
1995). It is not enough that the record contain inconsistencies; the ALJ must specifically
demonstrate that she considered all the evidence. Id. at 1354.
When a plaintiff claims that the ALJ failed to properly consider subjective complaints,
the duty of the court is to ascertain whether the ALJ considered all of the evidence relevant to
plaintiffs complaints under the Polaski 2 factors and whether the evidence so contradicts
plaintiffs subjective complaints that the ALJ could discount the testimony as not credible.

Blakeman v. Astrue, 509 F .3d 878, 879 (8th Cir. 2007) (citation omitted). If inconsistencies in
the record and a lack of supporting medical evidence support the ALJ' s decision, the Court will
not reverse the decision simply because some evidence may support the opposite conclusion.

Marciniak, 49 F.3d at 1354.

VI. Discussion
Plaintiff raises two arguments in her Brief in Support of the Complaint. First, she asserts
that the ALJ failed to support the RFC finding with substantial evidence from the record. Next,
2

The Eight Circuit Court of Appeals "has long required an ALJ to consider the following
factors when evaluating a claimant's credibility: '(1) the claimant's daily activities; (2) the
duration, intensity, and frequency of pain; (3) the precipitating and aggravating factors ; (4) the
dosage, effectiveness, and side effects of medication; (5) any functional restrictions; (6) the
claimant's work history; and (7) the absence of objective medical evidence to support the
claimant's complaints."' Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011) (quoting Moore v.
Astrue, 572 F.3d 520, 524 (8th Cir. 2009)) (citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th
Cir. 1984)).
18

Plaintiff contends that the VE' s testimony does not constitute substantial evidence because the
hypothetical question does not capture the concrete consequences of Plaintiffs impairment. The
Defendant maintains that substantial evidence supports the ALJ' s RFC determination and that
the ALJ properly included the limitations he found credible in the hypothetical posed to the VE.
The undersigned finds that the ALJ properly determined and supported Plaintiffs RFC and that
the hypothetical question properly included Plaintiffs impairments.

A. The ALJ's Residual Functional Capacity Assessment
With regard to Plaintiffs residual functional capacity, "a disability claimant has the
burden to establish her RFC." Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004)
(citation omitted). The ALJ determines a claimant' s RFC " ' based on all the relevant evidence,
including medical records, observations of treating physicians and others, and [claimant's] own
description of her limitations."' Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (quoting

Anderson v. Shala/a, 51 F.3d 777, 779 (8th Cir. 1995)). RFC is defined as the most that a
claimant can still do in a work setting despite that claimant' s limitations. 20 C.F.R. §
404.1545(a)(l ).
At the outset, the Court notes that Plaintiffs activities are inconsistent with her
allegations of disability. The record demonstrates that Plaintiff reported taking her kids to
school, eating out at restaurants, going to movies, shopping, and gambling. She was able to
attend her son's wedding in Florida. (Tr. 64-67) An ability to engage in a number of daily
activities detracts from Plaintiffs credibility. See, e.g. , Goff v. Barnhart, 421 F.3d 785, 792 (8th
Cir. 2005) (stating that plaintiff was able to vacuum wash dishes, do laundry, cook, shop, drive,
and walk were inconsistent with her subjective complaints and diminished her credibility);

Roberson v. Astrue, 481F.3d1020, 1025 (8th Cir. 2007) (affirming the ALJ's credibility

19

analysis where the plaintiff took care of her child, drove, fixed simple meals, performed
housework, shopped, and handled money); Slack v. Astrue, No. 4:07CV1655 RWS , 2009 WL
723832, at* 14 (E.D. Mo. March 17, 2009) (finding plaintiffs ability to hunt for small game,
prepare meals, and do some yard work was inconsistent with allegations that he needed to spend
most of the day resting).
The record also shows that the ALJ properly considered the medical evidence and based
the RFC determination on the evidence contained.in the record. With regard to Plaintiffs mental
health treatment with Dr. Simon, the Court notes that " [a] treating physician' s opinion should not
ordinarily be disregarded and is entitled to substantial weight . .. provided the opinion is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in the record." Singh v. Apfel, 222 F.3d 448, 452
(8th Cir. 2000) (citations omitted); see also SSR 96-2P, 1996 WL 374188 (July 2, 1996)
("Controlling weight may not be given to a treating source's medical opinion unless the opinion
is well-supported by medically acceptable clinical and laboratory diagnostic techniques."). The
ALJ need not give controlling weight to a treating physician' s opinion where the physician' s
treatment notes were inconsistent with the physician' s RFC assessment. Goetz v. Barnhart, 182
F. App'x 625, 626 (8th Cir. 2006). Further, " [i]t is appropriate to give little weight to statements
of opinion by a treating physician that consist of nothing more than vague, conclusory
statements." Swarnes v. Astrue, Civ. No. 08-5025-KES, 2009 WL 454930, at * 11 (D.S.D. Feb.
23, 2009) (citation omitted); see also Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010)
(finding that the ALJ properly discounted a treating physician' s opinion where it consisted of
checklist forms, cited no medical evidence, and provided little to no elaboration).

20

Here, the ALJ assessed Plaintiffs treatment history with Dr. Simon, highlighting that
during her most recent sessions with Dr. Simon, Plaintiff was improved, and her mental status
examinations were essentially normal. (Tr. 412-22) Her GAF was 55 to 65, indicating only mild
to moderate symptoms. 3 Further, the ALJ noted that Plaintiff reported situational stressors as the
cause of her occasional yelling or crying. Depression due to situations such as economic or
employment factors supports a finding that the impairment does not result in significant
functional restrictions. Dunahoo v. Apfel, 241F.3d1033, 1039-1040 (8th Cir. 2001); Shipley v.
Astrue, No. 2:09CV36MLM, 2010 WL 1687077, at *12 (E.D. Mo. April 26, 2010).
Additionally, the record indicates that Plaintiffs mental impairments improved with medication.
"An impairment which can be controlled by treatment or medication is not considered

disabling." Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir. 2002) (citation omitted); see also
Brace v. Astrue, 578 F.3d 882, 885 (8th Cir. 2009) ("There is substantial evidence that, when
taken as directed, the medication [plaintiff] was prescribed was successful in controlling his
mental illness."). Although Dr. Simon opined in both mental residual functional capacity
questionnaires that Plaintiffs mental impairments restricted her ability to work, he also noted
that he did not have objective findings supporting Plaintiffs claim that she felt scatterbrained.
(Tr. 406) Further, the clinical findings in the most recent questionnaire indicated that Plaintiff
merely exhibited occasional anger. Because Dr. Simon' s opinions were unsupported by
objective tests and were inconsistent with his own treatment notes, the ALJ properly discredited

3

The Court notes that DSM-V was released in 2013 and replaced the DSM-IV. The DSM-V
"no longer uses GAF scores to rate an individual' s level of functioning because of ' its conceptual
lack of clarity' and 'questionable psychometrics in routine practice. '" Alcott v. Colvin, No. 4: 13CV-01074-NKL, 2014 WL 4660364, at *6 (W.D. Mo. Sept. 17, 2014) (citing Rayford v.
~hinseki, 2013 WL 3153981 , at *1 n.2 (Vet. App. 2013) (quoting the DSM-V)). However,
because the DSM-IV "was in use when the medical entries were made and the [ALJ's] decision
was issued in this matter, the Global Assessment of Functioning scores remain relevant for
consideration in this appeal." Rayford, 2013 WL 3153981 , at *1 n.2.
21

the opinions. See Choate v. Barnhart, 457 F.3d 865, 870-71 (8th Cir. 2006) (finding that ALJ
properly discredited physician' s Medical Source Statement where treatment notes never
mentioned restrictions or limitations to the plaintiffs activities).
As stated above, the ALJ need not give controlling weight to a treating physician' s
opinion where the physician' s treatment notes were inconsistent with the physician' s RFC
assessment. Goetz, 182 F. App'x at 626. Additionally, the ALJ may properly give little weight
to an opinion that consists of vague, conclusory statements or is merely a checklist with no
elaboration. Swarnes, 2009 WL 454930, at *11; Wildman , 596 F.3d at 964. As Dr. Simon' s
questionnaire contained limitations far more severe than indicated in the treatment record and
failed to include any medical evidence or explanation, the ALJ properly gave the opinion little
weight.
Likewise, the ALJ properly discounted the opinions of Dr. Belancourt and James
Anthony. Although Dr. Belancourt listed significant physical limitations, the record contains
very little evidence of medical treatment for Plaintiffs alleged physical impairments, including
bilateral knee pain. The ALJ therefore gave little weight to his opinion of disabling physical
limitations. See Davidson v. Astrue , 501 F.3d 987, 991 (8 1h Cir. 2007) (discounting the treating
physician' s RFC assessment where treatment notes contained few hints of the serious physical
limitations). Dr. Belancourt' s opinion regarding Plaintiffs inability to work was based primarily
upon Plaintiffs mental impairments, for which Dr. Belancourt was not treating Plaintiff. See

Brown v. Astrue, 611 F.3d 941 , 953 (8th Cir. 2010) (affirming the ALJ's reason for discounting
the treating physician' s opinion because the physician did not have specialized training in
treating and diagnosing mental impairments). This assessment was not based on any clinical
findings or objective testing. Instead, Dr. Belancourt relied on Plaintiffs subjective complaints

22

to formulate his opinion. See Teague v. Astrue, 638 F.3d 611 , 616 (8th Cir. 2011) (finding the
ALJ properly discounted the physician' s opinion where the limitations were based on the
plaintiffs subjective complaints and not objective findings).
In addition, with regard to the physical therapist, the Court acknowledges that the ALJ

may consider evidence regarding the severity of a plaintiffs impairment and how it affects his or
her ability to work including medical sources such as nurse-practitioners, physicians' assistants,
chiropractors, and therapists. 20 C.F.R. § 404.1513(d)(l). While the ALJ could, and indeed did,
consider Mr. Anthony' s opinions under the regulations, the ALJ was not obligated to give the
opinions controlling weight. (Tr. 19-20) See Social Security Ruling, SSR 06-03p, 71 Fed. Reg.
45593-03 (Aug. 9, 2006) (distinguishing between "acceptable" and "not acceptable" medical
sources and stating that only "acceptable medical sources" can provide evidence to establish the
existence of a medically determinable impairment, give medical opinions, and can be considered
treating sources whose opinions may be entitled to controlling weight). Further, the ALJ
correctly noted that Mr. Anthony' s one-time assessment showed only slightly reduced range of .
motion and was not supported by any objective findings or treatment notes. See Randolph v.
Barnhart, 386 F.3d 835, 840 (8 1h Cir. 2004) (rejecting a medical opinion where the plaintiff only
saw the source on three occasions, and the treatment notes failed to indicate any knowledge of
plaintiffs ability to function in the workplace).
Contrary to Plaintiffs argument that the ALJ failed to rely on medical evidence in the
f
record in determining Plainti_ f s RFC, the Court finds that the ALJ' s RFC assessment is
supported by medical evidence contained in the record as a whole. The ALJ need not rely
entirely on a particular doctor' s opinion or choose between opinions. Martise v.Astrue, 641 F.3d
909, 927 (8th Cir. 2011). Here, the ALJ properly performed an exhaustive analysis of the

23

medical recor~s and noted that none of the physician' s treatment notes indicated serious
functional restrictions. Id at 926. Indeed, the ALJ added further limitations to the RFC finding
that Plaintiff could perform light work based upon her asthma and her mental impairments
allowing her to understand, remember, and carry out at least simple instructions and non-detailed
tasks. (Tr. 21) Therefore, the undersigned finds that substantial evidence supports the ALJ's
RFC determination.

B. Hypothetical Question to the VE
Plaintiff next argues that the hypothetical question posed to the VE failed to include all of
Plaintiffs limitations, and, therefore, the VE' s response did not constitute substantial evidence.
The Defendant responds that hypothetical question properly included only those impairments
and restrictions that the ALJ found credible.
The undersigned agrees that the ALJ posed a proper hypothetical question to the VE and
that the VE' s testimony that Plaintiff could perform work was substantial evidence in support of
the ALJ's determination. "A hypothetical question is properly formulated if it sets forth
impairments ' supported by substantial evidence in the record and accepted as true by the ALJ. '"
Guilliams v. Barnhart, 393 F.3d 798, 804 (8th Cir. 2005) (quoting Davis v. Apfel, 239 F.3d 962,
966 (8th Cir. 2001)).

Further, where substantial evidence supports an ALJ' s finding that a

plaintiffs complaints were not credible, the ALJ may properly exclude those complaints from
the hypothetical question. Id
In the instant case, the ALJ included only those impairments and limitations that she
found credible. The ALJ asked the VE to assume an individual limited to light exertional work.
She should avoid fumes, odors, dust, and gases and could occasionally be exposed to extreme
cold. Due to mental impairments, the individual was limited to unskilled work. (Tr. 46-4 7)

24

These limitations are consistent with medical and other evidence in the record and with the
ALJ' s RFC determination.
Therefore, the undersigned finds that " [t]he hypothetical was sufficient because it
represented a valid assessment of [Plaintiffs] . . . limitations consistent with the evidence in the
record." Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001). Because the hypothetical question
properly set forth Plaintiffs limitations, the VE' s testimony constituted substantial evidence
upon which the ALJ could properly rely in determining that Plaintiff was not disabled. Id.
Therefore, the undersigned finds that substantial evidence supports the ALJ' s determination that
Plaintiff had not been under a disability from January 1, 2008 through the date of the decision,
and the Court will affirm the decision of the Commissioner.
Accordingly,
· IT IS HEREBY ORDERED that the final decision of the Commissioner denying

social security benefits is AFFIRMED. A separate Judgment in accordance with this
Memorandum and Order is entered this same date.
Dated this

3rd

day of March, 2015.

RONNIE L. WHITE
UNITED STATES DISTRICT JUDGE

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