Hennessey v. Colvin
MEMORANDUM AND ORDER, IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. A separate judgment in accord with this Memorandum and Order is entered this date. Signed by District Judge Catherine D. Perry on 3/3/15. (EAB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN,
Acting Commissioner of Social Security, )
No. 4:13 CV 2169 CDP
MEMORANDUM AND ORDER
This is an action under 42 U.S.C. §§ 405(g) and 1383 for judicial review of
the Commissioner’s final decision denying Joseph T. Hennessey’s application for a
period of disability and disability insurance benefits under Title II of the Social
Security Act, 42 U.S.C. §§ 401 et seq., and his application for supplemental
security income under Title XVI, 42 U.S.C. §§ 1381 et seq. Hennessey claims he
is disabled because he suffers from migraine headaches, major depression, and
opiate dependence. After a second hearing, the Administrative Law Judge
concluded that Hennessey was not disabled. Because I find that the ALJ’s decision
was based on substantial evidence on the record as a whole, I affirm.
I. Procedural History
On July 7, 2009, Hennessey filed an application for disability insurance
benefits and an application for supplemental security income. Hennessey initially
alleged an onset date of January 11, 2003 but, at the time of his first hearing,
amended his disability onset date to September 1, 2007. After his claims were
denied on October 27, 2009, Hennessey requested a hearing before an
administrative law judge. Hennessey then appeared with counsel at an
administrative hearing on July 29, 2010. Hennessey, his social worker, and a
vocational expert testified.
After the hearing, the ALJ denied Hennessey’s applications, and Hennessey
appealed to the Appeals Council. On December 27, 2011, the Appeals Council
issued an order remanding the case to the ALJ. Hennessey again appeared with
counsel at a second administrative hearing on June 6, 2012. At this hearing,
Hennessey, his mother, his social worker, a medical expert, and a vocational expert
After the second hearing, the ALJ again denied Hennessey’s applications,
and Hennessey again appealed to the Appeals Council. On August 30, 2013, the
Appeals Council denied his request for review. The ALJ’s decision thereby
became the final decision of the Commissioner. Van Vickle v. Astrue, 539 F.3d
825, 828 (8th Cir.2008).
Hennessey now appeals to this court. He argues that the finding of nondisability is not supported by substantial evidence because the residual functional
capacity findings are not supported by “some” medical evidence. Hennessey also
alleges that the hypothetical question posed to the vocational expert did not capture
the concrete consequences of his impairment and, thus, the conclusions reached by
the vocational expert did not constitute substantial evidence.
II. Evidence Before the Administrative Law Judge
Medical Records Before Period of Alleged Disability
On August 1, 2005, Hennessey visited St. Luke’s Urgent Care complaining
primarily of a stomachache. He reported experiencing ongoing mid abdominal
pain, which had recently worsened, and also a history of chronic headaches. The
urgent care physician recommended that Hennessey see his primary physician for
an evaluation regarding the headache and stomach issues. (Tr., pp. 663–69).
Hennessey was brought by ambulance to Mercy Medical Center on October
25, 2006 with suspicion of overdose on heroin, and was admitted and treated by
Dr. Peter Zhang. He reported using heroin intravenously for two or three years and
using marijuana in the past at age seventeen. He further reported feeling depressed
since losing his job at CitiMortgage, and feeling particularly badly the previous
night when he used more heroin than usual. Dr. Zhang noted, however, that
Hennessey denied any suicidal ideations, insisting that he did not intend to kill
himself the previous night. Instead, Hennessey asserted that he had been having
anxiety attacks, but was feeling much better. Dr. Zhang encouraged Hennessey to
seek chemical dependency treatment, but noted that he did not seem motivated for
or interested in such treatment. Dr. Zhang also discussed with Hennessey the
relationship between substance use and anxiety symptoms. Dr. Zhang diagnosed
Hennessey with heroin dependence and assessed a GAF score of 60.1 (Tr., pp.
410–15, 420, 424–45, 428).
Medical Records During Period of Alleged Disability
March 20, 2009, Hennessey visited St. Luke’s Urgent Care complaining of a
headache. He reported ongoing headaches for one year, but stated that this
particular headache was the worst yet; rating his pain as a maximum ten on a oneto-ten scale. The urgent care physician prescribed Fioricet and Valium, noting his
clinical impression that Hennessey was suffering from a migraine. (Tr., pp. 436–
On February 9, 2009, Hennessey began visiting Dr. Susan Minchin for
depression, anxiety, and migraines. He reported experiencing anxiety or panic
attacks two or three times a week and stated that Xanax helped with his anxiety.
He also reported feeling “blah” all the time and stated that no medications had
A GAF score considers “psychological, social, and occupational functioning on a hypothetical
continuum of mental health-illness.” Diagnostic and Statistical Manual of Mental Disorders,
Text Revision 34 (4th ed. 2000). A GAF score of 51 to 60 indicates moderate symptoms (e.g.,
flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social,
occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id.
been helpful for his depression. In addition, Hennessey reported that he lived with
his parents and had a two-month-old son with his girlfriend. (Tr., p. 572).
Hennessey again visited Dr. Minchin on April 20, 2009. He reported panic
attacks during the previous two weeks and stated that his migraines were
unchanged, occurring three or four times a week. He further reported having low
energy and a “blah” mood. (Tr., p. 573).
At his May 12, 2009 appointment with Dr. Minchin, Hennessey reported
recently having a few good days, stating that his depression was a little better and
that he had been spending more time with his son. Dr. Minchin prescribed Deplin
and Fioricet in addition to the Restoril, Xanax, and Gabapentin she had previously
prescribed Hennessey. (Tr., p. 574).
Hennessey visited Dr. Minchin again on June 11, 2009, reporting severe allday headaches and increased feelings of hopelessness and anxiety. However, he
indicated that his migraines benefit from Gabapentin and also stated that he
continued to spend thirty to forty hours a week caring for his son. Overall,
Hennessey reported no improvement from his initial appointment with Dr.
Minchin. (Tr., p. 575).
On July 20, 2009, Hennessey again visited Dr. Minchin. At this
appointment, he complained of lethargy, which caused him to spend most of his
time in bed, “pretty bad” headaches, which occurred all day every day, and panic
attacks. He reported that Gabapentin had stopped working and also that he had
been spending less time caring for his son. Dr. Minchin’s assessment was that
Hennessey had experienced no improvement and she instructed him to discontinue
Gabapentin. (Tr., p. 576).
Hennessey returned to Dr. Minchin’s office on August 20, 2009. He
reported uncontrollable migraines, but stated that Fioricet takes the edge off, and
also requested Adderall for attention deficit disorder. Hennessey reported that he
was starting school the following week and would take an eight credit-hour course
load. Dr. Minchin’s assessment was that Hennessey was still depressed. She
prescribed Hennessey Gabapentin, MAOI, and another medication, and instructed
him to discontinue Deplin and Restoril. (Tr., p. 577).
Hennessey again visited Dr. Minchin on September 14, 2009, complaining
of depression, low energy, and migraines. He reported attending school two days a
week, working fifteen to twenty hours a week, and “doing what is expected of me”
in regard to caring for his son. Dr. Minchin noted her assessment that Hennessey
was suffering from depression. She again instructed him to discontinue
Gabapentin, and also suggested he try Excedrin Migraine. (Tr., p. 578).
On November 22, 2009, Hennessey returned to Dr. Minchin. At this
appointment, he reported that he had been attending his classes but had quit his job
after one month. Dr. Minchin noted that Hennessey had discontinued one
prescription medication on his own because he believed it was no longer working.
Dr. Minchin also noted that Hennessey’s affect was dysphoric. She prescribed
Adderall and also assessed Hennessey as depressed. (Tr., p. 579).
Hennessey again visited Dr. Minchin on January 22, 2010, reporting low
mood and energy. He reported that he was still attending school and stated that he
sometimes enjoyed it. Dr. Minchin’s assessment was that Hennessey was still
depressed. She discontinued Restoril, noting that Hennessey had not been using
the medication. (Tr., p. 580).
On March 18, 2010, Hennessey returned to Dr. Minchin. He reported that
his mood was about the same with good and bad days that were roughly equal in
number. Hennessey also reported that his migraines were unchanged and that his
energy level had increased after taking a new prescription. He indicated that
school was going well and that he was not presently working. Overall, Dr.
Minchin noted her assessment that Hennessey’s symptoms had improved. She
discontinued Adderall. (Tr., p. 581).
Hennessey was admitted to the Emergency Department at Barnes Jewish
Hospital on April 1, 2010 after arriving by ambulance. He complained primarily
of syncope or fainting, reporting that he had experienced two such episodes.
Hennessey also complained of symptoms related to withdrawal from heroin. Dr.
Svancarek noted that Hennessey had been abstinent from heroin for two days and
was currently in a treatment program. At discharge, Dr. Panagos diagnosed
Hennessey with contusion, syncope, and dehydration. (Tr., pp. 512, 515–16, 519–
21, 523–24, 526–31).
Hennessey was admitted to Metropolitan Psychiatric Center on April 5, 2010
and discharged on April 13, 2010. During that time, he was treated by Dr. Ujjwal
Ramtekkar and Dr. Devna Rastogi for persistent depressive symptoms and suicidal
thoughts. The physicians noted that Hennessey presented with a history of heroin
dependence, major depressive disorder, at least two prior psychiatric
hospitalizations, and at least four non-medically serious suicide attempts.
However, they indicated that his presentation was complicated by heavy drug use,
including primarily intravenous heroin use. According to treatment notes,
Hennessey had recently received drug rehabilitation treatment after an Emergency
Room visit for heroin intoxication. He reported experiencing persistent depressive
symptoms, repeated suicidal ideations, and auditory hallucinations while
undergoing rehabilitation treatment. Hennessey also reported certain anxiety
symptoms including continuous worrying, feeling anxious about nonspecific
issues, and feeling breathless during episodes of anxiety. However, it was noted
that he did not have any symptoms suggestive of classic panic attack. (Tr., pp.
While admitted at Metropolitan Psychiatric Center, Hennessey met with a
psychologist on a daily basis. Overall, he reported significant improvement in his
depressive symptoms, with complete resolution of his suicidal ideations. At one
appointment, though, he stated that he did not want to live and did not have a
specific plan to commit suicide “only because there is no practical way to do it
here.” At that appointment, the physician found that Hennessey’s depression was
primarily attributable to his substance abuse. It was also noted that during his stay
Hennessey showed improvement in his sleep, appetite, and energy levels.
Hennessey was found to be vocal, verbal, and laughing with some other residents
at the hospital. However, he was observed to be exaggerating his depressive
symptoms during interactions with the physicians and psychologist. The
physicians further noted that Hennessey showed significant improvement in his
affect, with euthymic affect and good reactivity observed most of the time. At one
point, Hennessey was found to be collecting his pain medications and, when
confronted, reported that he planned to use them collectively to get high.
Hennessey denied any suicidal plans involving overdose on the pills and was
thereafter compliant with his medications. (Tr., pp. 559–60, 564, 566, 571).
Hennessey was discharged from Metropolitan Psychiatric Center on April
13, 2010. He was provided resources regarding drug rehabilitation and reported
that he was planning to join an outpatient rehabilitation program. Hennessey also
underwent a mental status examination on the date of discharge. At this
appointment, the physicians noted that his mood was much better than before and
his affect was euthymic and stable. Hennessey denied any suicidal ideation, plan,
or intent. He also denied any auditory hallucinations at the time of examination,
but reported having intermittent hallucinations during the evenings. The
physicians noted that Hennessey showed good future planning, as he discussed
obtaining a job related to his interest in computers as well as resuming school. The
physicians’ discharge diagnoses included depressive disorder recurrent severe with
psychotic features, dysthymic disorder, opiate dependence in early partial
remission, personality disorder not otherwise specified, and migraines. They
assessed a GAF of 45–502 and prescribed Cymbalta and Seroquel at discharge.
(Tr., pp. 566–71).
On April 30, 2010, Hennessey began attending appointments at BJC
Behavioral Health, including meetings with social worker Brad Peters. Hennessey
underwent a clinical intake evaluation on this date, reporting severe depression and
related symptoms such as low mood, sadness, and amotivation. Hennessey also
discussed his ongoing suicidal ideations and history of four prior suicide attempts,
but denied any current suicidal plan or intent. Other symptoms and conditions
A GAF score of 41 to 50 indicates serious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or
school functioning (e.g., no friends, unable to keep a job). Id.
were also reported, including anxiety, auditory hallucinations, social isolation,
migraines, history of heroin dependence, and difficulty paying attention.
Hennessey stated that he had lost jobs in the past because of behavior problems or
frequent absences and also reported that he attended junior college for four
semesters, but did poorly in his courses because of a lack of motivation. The
physician noted that Hennessey’s compliance with mental health and substance
abuse treatments had been variable. Hennessey reported, however, that both
conventional and alternative treatments had been ineffective. The clinical opinion
stated that Hennessey’s depression and substance abuse had been barriers for him
to work and be a parent to his son. Hennessey was diagnosed with opiate
dependence, major depressive disorder recurrent severe with psychotic features,
and migraines, with a current GAF of 383 and a previous GAF of 50. (Tr., pp.
Hennessey again attended an appointment at BJC Behavioral Health on May
17, 2010. He met with psychiatrist Dr. Scott Cologne and complained primarily of
bad mood. Hennessey also reported low energy, low self-esteem, low appetite,
anxiety, difficulty paying attention, and auditory hallucinations. Regarding his
A GAF score of 31 to 40 indicates some impairment in reality testing or communication
(e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several
areas, such as work or school, family relations, judgment, thinking, or mood (e.g.,
depressed man avoids friends, neglects family, and is unable to work; child frequently
beats up younger children, is defiant at home, and is failing at school). Id.
medications, Hennessey reported noncompliance for the past week. His reasons
were that Cymbalta made him feel “uncomfortably numb” and Seroquel caused
sleep issues and grogginess. Hennessey further indicated that he had remained
abstinent from drugs since his last psychiatric hospitalization and that he was
attending Narcotics Anonymous meetings almost daily. Dr. Cologne noted that
Hennessey’s suicidal thoughts appeared to be chronic, although he perceived no
present suicidal plan or intent. He diagnosed Hennessey with major depressive
disorder recurrent with psychotic features, opiate dependence in early remission,
and migraines, assessing a GAF score of 50. He prescribed Remeron and
instructed Hennessey to continue NA meetings and outpatient counseling. (Tr., pp.
Hennessey returned to BJC Behavioral Health on June 14, 2010 and again
met with Dr. Cologne. He reported relapsing on heroin since his previous visit and
indicated that he was still experiencing some withdrawal symptoms, although he
had not used the drug for eight or nine days. Hennessey also reported that he
stopped attending NA meetings and appointments with his psychologist because he
did not believe they were helpful. However, he stated that he had been taking his
medication regularly, although he had not noticed much benefit from Remeron.
Although he expressed hope for finding a job, he reported that his current schedule
consisted of watching television. Dr. Cologne noted Hennessey’s continued
feelings of depression, low self-esteem, guilt about using heroin, and lack of
structure in his daily routine. He recommended individual drug counseling. (Tr.,
Hennessey again visited Dr. Cologne on July 12, 2010. At this appointment,
Hennessey reported relapsing once on opiates the previous week and stated that he
had not begun attending drug counseling. Hennessey also discussed various other
issues, including his difficulty sleeping, low mood, feelings of depression, and
thoughts that he was “better off dead.” Hennessey denied experiencing side effects
from Remeron, but stated that he felt “head electricity” when he stopped taking the
medication for a few days. Dr. Cologne’s plan was for Hennessey to continue
Remeron, attend drug counseling, and begin taking trazodone for sleep. (Tr., pp.
On August 23, 2010, Dr. Cologne indicated that Hennessey had checked
himself into a detox program after increasing his opiate usage and experiencing
withdrawal symptoms. (Tr., p. 602).
Hennessey again visited Dr. Cologne on February 28, 2011. Dr. Cologne
noted that, since his last visit, Hennessey had undergone rehabilitation treatment
and had met with addiction specialists. However, Hennessey reported that he did
not currently attend NA meetings. Regarding his medications, Hennessey reported
that he had been noncompliant with both Remeron and trazodone since August 11,
2010. He claimed to have experienced no benefits or side effects from these
medications. Dr. Cologne noted that Hennessey understood the medications would
have little effect with continued drug use. Furthermore, Dr. Cologne noted that
Hennessey’s depressed mood would not be effectively managed with continued
drug use and indicated that Hennessey was also aware of this. Dr. Cologne’s
assessment was that Hennessey was still using opiates. His plan was for
Hennessey to restart Remeron, take over-the-counter medications for opiate
withdrawal, and attend drug rehabilitation. (Tr., pp. 602–04).
Hennessey returned to Dr. Cologne on March 28, 2011, complaining that his
mood was “bleak” and that he felt the same as before. He also reported feeling
anxious around others and claimed he had always felt that way. Furthermore, he
stated that he had been having continued suicidal ideations and regretted waking
up each day. Regarding his medications, Hennessey told Dr. Cologne he had
stopped taking Remeron a few days earlier because it was not helping his
condition. Moreover, he reported that he had been taking methadone and
Suboxone, which he got “off the street,” as well as over-the-counter medications
for sleep and headache. Dr. Cologne’s assessment was that Hennessey was not
immediately suicidal, but he noted this could change with future drug use, as
Hennessey continued to abuse opiates. Dr. Cologne also noted that there might be
a component of social phobia. He prescribed Clonidine and recommended that
Hennessey seek counseling and work on opiate abstinence. (Tr., pp. 605–07).
Hennessey returned to Dr. Cologne on June 27, 2011. At this appointment,
he reported an improved mood, stating he felt “much better” as he had met some
women who made him happy. He also reported that, although he continued to
have trouble sleeping, his appetite had improved and he was no longer having
suicidal ideations. Hennessey reported that Clonidine was helpful for dealing with
sleep issues and withdrawal, and also mentioned taking more Clonidine than
prescribed to help with withdrawal symptoms. Regarding his drug and alcohol
use, Hennessey reported no regular opiate use in the past couple of months, but
stated that he last used opiates the previous week and had been drinking beer two
or three times per week. (Tr., pp. 608–10).
Hennessey visited Dr. Cologne again on August 8, 2011 and reported a good
mood, stating that he had been doing well overall since his last visit. Hennessey
also reported constant anxiety, but indicated that it was generally manageable. In
addition, Hennessey reported relapsing on heroin once or twice since his previous
visit and drinking alcohol once a week, typically six or more beers at a time.
Hennessey also reported taking Clonidine three or four times a week, but stated
that he did not take it during the day because it made him feel groggy. He
requested to begin taking Seroquel instead, as it had been helpful for him in the
past at treating mood and sleep issues. Dr. Cologne discontinued Clonidine,
prescribed Seroquel, and recommended that Hennessey continue to work on
abstinence from alcohol and heroin. (Tr., pp. 611–13).
Hennessey returned to Dr. Cologne on September 12, 2011. At this visit, he
reported that his mood was fine, but he still felt that his life was not worthwhile.
He reported abstinence from heroin since his last visit and also indicated that he
had reduced his alcohol consumption. Also during this visit, Hennessey requested
benzodiazepines in place of Seroquel, which had caused him to gain weight
without improving his condition significantly. Dr. Cologne discontinued Seroquel
and prescribed buspirone. (Tr., pp. 614–16).
Hennessey next visited Dr. Cologne on November 14, 2011, reporting a
“better” mood and denying depressive symptoms. Regarding his drug and alcohol
use, Hennessey reported relapsing on heroin a few weeks earlier, but stated he had
not consumed alcohol in many weeks. He further reported positive results from
buspirone, noting that it was more effective at treating his anxiety than previous
medications had been, without any side effects. However, he stated that he had run
out of the medication approximately one month earlier. (Tr., pp. 617–19).
Hennessey began visiting psychiatrist Dr. Malik Ahmed on February 2, 2012
for depression, anxiety, and drug use. Hennessey reported feelings of depression,
including hopelessness and lethargy such that he was unable to do anything. He
also reported anxiety issues and nervousness, stating that he would clam up and get
sweaty palms when he had to talk to others. Hennessey reported that he was not
presently on any medication, but had been taking buspirone until his prescription
ran out. Dr. Ahmed noted that Hennessey had suicidal ideations and plans, but no
suicidal intent. He diagnosed Hennessey with major depressive disorder recurrent
moderate degree, social phobia, and opioid type dependence unspecified use,
assessing a GAF of 50. Dr. Ahmed prescribed imipramine for social anxiety and
recommended that Hennessey stay clean and sober. (Tr., pp. 644–47).
Hennessey returned to Dr. Ahmed on March 1, 2012, reporting recent
suicidal ideations. Hennessey also reported that he had been using marijuana since
his last visit. However, he reported that his mood was better possibly because he
was smoking less marijuana than before. Hennessey also remarked that he felt less
anxious and believed the medication was working. Furthermore, he reported that
he had been working three or four nights a week for a t-shirt printing company.
Dr. Ahmed increased Hennessey’s imipramine dosage. (Tr., p. 643).
On April 5, 2012, Hennessey again visited Dr. Ahmed. He reported
difficulty sleeping after a breakup with his girlfriend, as well as continued feelings
of anxiety and worthlessness. Hennessey also reported suicidal ideations, though
Dr. Ahmed noted an absence of any suicidal plan or intent. Hennessey next
discussed his drug and alcohol use, indicating that he had been drinking some
alcohol but was smoking less marijuana. He also reported that he had been
working at the t-shirt printing company nearly forty hours a week. Dr. Ahmed
again increased Hennessey’s imipramine dosage. (Tr., p. 642).
Hennessey returned to Dr. Ahmed on May 7, 2012 and reported that he was
doing okay overall, but noted continued anxiety. According to Hennessey, he had
not used drugs in three weeks but had been drinking some alcohol. He also stated
that he was working less at the t-shirt store, but had begun working roughly
twenty-four hours a week at a cookie stand about three weeks earlier. Hennessey
reported having one good week after Dr. Ahmed last increased his medication.
Accordingly, Dr. Ahmed again increased the imipramine dosage. (Tr., p. 641).
Consultative Examination Report
On October 7, 2009, Hennessey underwent a consultative psychological
evaluation with psychologist Dr. Lloyd Moore for disability determinations. Dr.
Moore noted that Hennessey was a cooperative and fair informant during the
evaluation. Hennessey discussed his history of chronic migraine headaches,
depression, and social anxiety. He claimed that, as a result of his migraines, he had
lost at least three jobs and was also unable to complete more than two years of
college. Concerning his drug use, Hennessey reported a past addiction to heroin,
which he used as a painkiller for migraines. However, at this point in time,
Hennessey was reportedly abstinent from drugs and had been for some time. Dr.
Moore noted Hennessey was currently noncompliant with his Xanax medication,
having stopped the medication without consulting his physician. He diagnosed
Hennessey with major depressive disorder and social phobia, assessing a GAF
score of 60. Dr. Moore found that Hennessey’s thought processes, memory, and
general fund of knowledge were intact; he was oriented in all spheres; and his
judgment and psychological insight were good. He noted that Hennessey could
perform his activities of daily living based on physical ability, but was at times
unable to do so because of depression. Furthermore, Dr. Moore noted Hennessey’s
lifelong history of poor ability to develop, maintain, and sustain relationships. He
also indicated that Hennessey’s concentration, persistence, and pace were
negatively affected by his depression. Dr. Moore acknowledged that Hennessey
had lost several positions because of his migraines and that he had not been
engaged in competitive employment since January of 2009. Finally, Dr. Moore
indicated that Hennessey had tried various methods to treat his migraines, but none
had been successful. (Tr., pp. 472–76).
Psychiatric Review Technique
Psychologist Dr. Kyle DeVore, a non-examining physician, completed a
psychiatric review technique form on October 27, 2009. Dr. DeVore indicated that
Hennessey suffered from two medically determinable impairments, major
depression and social phobia, that did not precisely satisfy the diagnostic criteria
for affective disorders or anxiety-related disorders. Dr. DeVore found Hennessey
would have mild restrictions in daily living, moderate difficulties in maintaining
social functioning, mild difficulties in maintaining concentration, persistence, or
pace, and no repeated episodes of decompensation of an extended duration. Dr.
DeVore noted that, overall, Hennessey’s alleged limitations were only partially
credible as they were not supported by a third party’s report. He further noted that
Hennessey was capable of performing at least simple work tasks with no public
contact. (Tr., pp. 477, 480–81, 485, 487).
Mental Residual Functional Capacity Report
Dr. Kyle DeVore also completed a mental RFC assessment on October 27,
2009. He indicated that Hennessey was moderately limited in his ability to work in
coordination or proximity to others without being distracted by them. He further
found moderate limitations in Hennessey’s ability to interact appropriately with the
general public and his ability to accept instructions and respond appropriately to
criticism from supervisors. Dr. DeVore concluded that Hennessey was capable of
performing at least simple work tasks and would do better with no public contact.
He noted that Hennessey’s alleged functional limitations were partially credible.
(Tr., pp. 488–90).
Physical Residual Functional Capacity Report
On October 27, 2009, John Herberger, also a non-examining medical
consultant, completed a physical RFC assessment. Herberger indicated “migraine”
as Hennessey’s primary diagnosis. He concluded that Hennessey had no
established exertional, postural, manipulative, visual, or communicative
limitations. However, he concluded that Hennessey did have an environmental
limitation, as he should avoid concentrated exposure to noise. To support this
conclusion, Herberger cited to March 20, 2009 treatments notes from St. Luke’s
Urgent Care. Hennessey had visited that facility for an abrupt onset migraine and
had complained of sensitivity to light and nausea, with pain exacerbated by
movement. Overall, Herberger found that Hennessey’s allegations regarding his
physical limitations were only partially credible as there were inconsistencies
between Hennessey’s alleged limitations and those described
in a third party function report completed by his friend. (Tr., pp. 491–96).
According to Hennessey’s function report, which he completed on July 23,
2009, he lived with his family and spent most of his time in bed. He also indicated
that he typically spent two days a week helping the mother of his infant son with
child care, but explained that he was otherwise in bed and “useless as a parent.”
(Tr., p. 366). Hennessey reported having the ability to feed himself zero or one
meal a day, although he typically did not feel well enough to do so. He also
explained that he usually showered and shaved once or twice a week and also
mowed his yard once a week, but needed reminders to do these things. Moreover,
he indicated that his hobby was working with and building computers, which he
could do for hours on end. Regarding his life outside of his home, Hennessey
reported having a valid driver’s license and being able to drive alone. However, he
would rarely drive, go outside, or spend time with others. Although he mentioned
that he had become asocial since his illness began, he reported having no problems
getting along with family, friends, or authority figures. Hennessey explained that
his migraines interfered with his ability to do his normal activities. Further, his
illnesses affected his sleep, memory, concentration, and ability to complete tasks.
He was, however, able to follow written and spoken instructions “okay” and
handle stress and changes in routine “well enough.” Moreover, he could count
change and use a checkbook, but could not pay bills or handle a saving account.
(Tr., pp. 366–75).
Melissa Lesniak, Hennessey’s friend and the mother of his child, completed
a third party function report on August 21, 2009. She explained that she had
known Hennessey for a year and a half and would spend around eight to ten hours
a week with him. During that time, they would watch television, eat dinner, go for
walks, and care for their son. Regarding Hennessey’s daily activities, Lesniak
explained that he would sleep during the day, as his illnesses made it difficult for
him to sleep at night. He also watched television, read or used the computer. His
other hobbies included seeing friends and playing Frisbee, though he rarely saw
friends in person anymore. She explained that he would go to her home weekly
and to other peoples’ homes once or twice a month. According to Lesniak,
Hennessey had no problem dressing, bathing, shaving, or taking his medicines, and
did not need special reminders to complete these tasks. He did, however,
sometimes need prompting to do chores like mowing the yard and washing dishes
and also often needed reminders to go to his doctor appointments. Lesniak
indicated that Hennessey would prepare himself meals a few times a week,
including salads, sandwiches, and noodles, but cooked less often than he did before
his illness. Moreover, she reported that he would go outside daily, go out alone,
and drive a car. Lesniak believed that Hennessey’s illnesses affected his
understanding, memory, concentration, and ability to complete tasks and follow
instructions. She also reported that, when faced with stress, Hennessey would
often isolate himself or get headaches. (Tr., pp. 377–83).
Hennessey completed a work activity report on July 7, 2009 describing his
work since January 11, 2003. He indicated that he worked as a cashier from
December of 2002 to February of 2003, but stopped working because the store
closed. He also reported working as a pizza maker for about three months in 2003
and 2004, until he stopped working because he was not getting enough hours.
According to Hennessey’s report, he also worked as a cook for one month in 2004,
but stopped working because of his medical condition and because he had a
disagreement with the manager. In addition, he reported that from April 15, 2005
to October 15, 2006 he worked as a loan processor, but he did not report why he
stopped working at this job. Hennessey also reported working as a customer
service representative during December of 2006, as a cashier and sandwich maker
from June of 2007 to September of 2007, and as a dishwasher from October of
2008 to February of 2009. However, he reported that he stopped working at these
jobs because of his medical condition. (Tr., pp. 318–328).
Testimony at the July 29, 2010 Administrative Hearing
Hennessey testified at the first hearing before the ALJ on July 29, 2010. He
stated that he was born on January 11, 1985, was unmarried with one sixteenmonth-old son, and lived with his parents. He would typically see his son a couple
of times a week, but would not generally keep him overnight. He testified that he
had a twelfth grade education and attended community college for a couple of
years after graduating high school. He reported no problems with reading, writing,
using a computer, or doing simple arithmetic. (Tr., pp. 33–37).
Regarding his work history, Hennessey stated that he worked as a
dishwasher from October of 2009 to January of 2010, but also performed some
cleanup duties like moving tables and taking out trash. Before that, he worked at a
sandwich shop for a few months in 2008. In 2005 and 2006, Hennessey worked at
a bank auditing mortgage files. He testified that he left this job because it was a
temporary position and “just ran out.” (Tr., p. 39). He also indicated that he
worked at a cookie shop during high school for nearly a year, where he baked
cookies, ran a cash register, and dealt with customers. Before the cookie shop,
Hennessey worked at a toy store as a cleaner, where he would mop floors and
empty trashcans, lifting no more than about forty pounds. He also discussed
working at a pizza restaurant as a cashier, where he took phone orders and
occasionally made pizzas, and at a fast food restaurant as a cook where he prepared
burgers. Furthermore, Hennessey worked at a pretzel shop for one day, but
testified that he quit because he did not like how he was treated. He also worked
for a short time at a telephone kiosk in the mall selling phones and phone service,
but reported that he stopped working at this job because his position became
redundant after a change in management. (Tr., pp. 37–43).
When the ALJ asked Hennessey to describe the medical conditions that kept
him from working, he first discussed his severe migraines. He stated the migraines
occurred three to five times a week and lasted several hours, usually requiring him
to sleep them off. Hennessey explained that he had been on and off of medications
for migraines since the age of seven, and was currently taking only Excedrin to
treat them because his other medications were ineffective and because he could not
afford to keep seeing doctors. Hennessey stated that Fioricet had made his
migraines less intense, but overall did not help him very much; however, he
stopped taking the medication because it was a narcotic and he had issues with
substance abuse. He further testified that his migraines affected his full-time work
as a mortgage assistant, as he eventually stopped coming to work every day and
consequently did not get hired on as a permanent employee. (Tr., pp. 43–44, 52–
Next, Hennessey discussed his severe depression, which he testified had also
kept him from working. He reported that he had been receiving treatment from
psychiatrists and psychologists and taking medications consistently since the age
of fourteen or fifteen to treat this condition. When asked if he experienced side
effects from his current depression medications, he reported that they made him
very sleepy. Regarding his symptoms, Hennessey reported that he had suicidal
thoughts and crying spells on a daily basis. He also testified that, for the past
couple of years, he did not have the energy to bathe or change his clothes every
day and he would only do so every few days after he began to stink and his mother
yelled at him. Furthermore, Hennessey reported experiencing auditory
hallucinations on a daily basis that would last a matter of minutes. He stated that
he would hear voices telling him “bad things about myself” and “that I have to kill
myself.” (Tr., pp. 45–46, 55–57).
Hennessey also briefly mentioned in passing to the ALJ that his social
anxiety was another condition that kept him from working. (Tr., p. 45).
When discussing his daily activities, Hennessey reported that he did not help
around the house. Although he had reported in his application that he mowed the
yard, he testified that he no longer did so. He also testified that he no longer used
the computer, as he lacked the necessary energy. He stated that he would take care
of his child sometimes, but his main activities were lying in bed and watching
television. (Tr., pp. 51–52).
Hennessey also answered several questions about his use of tobacco, drugs,
and alcohol. He reported that he smoked a pack of cigarettes every couple of days
and that he did not drink alcohol, but had in the past. When asked about his use of
illegal drugs, Hennessey stated that he had tried drugs such as marijuana and
ecstasy, but had mostly used heroin. He reported that the last time he used illegal
drugs was about three months earlier, around the time he entered a two-week
treatment program. Hennessey testified that, before entering treatment, he used
heroin on a daily basis, starting first at the age of eighteen and again in January of
2010 after years of sobriety. When asked if his heroin use affected his ability to
work at his previous jobs, Hennessey reported that it did not, as he was not using
heroin at those times. (Tr., pp. 46–51).
Bradley Peters, Hennessey’s social worker, also testified before the ALJ. He
reported that he had been working with Hennessey about once or twice a week
since May of 2010, when Hennessey was referred to BJC Behavioral Health for
treatment of anxiety disorder, major depression, and opiate dependence. He
explained that his primary objective was to link Hennessey with vocational
rehabilitation services, as Hennessey’s goal was to get back to work. Peters stated,
though, that Hennessey’s social isolation and anxieties had prevented him from
working. He explained that Hennessey was withdrawn, disengaged from
conversation, and typically gave one or two word answers to questions with his
head down and arms folded. Peters testified that he and Hennessey were working
primarily on organization, mood management, and coordinating medical services.
Peters also mentioned that Hennessey’s daily activities generally consisted of
sitting on the couch, watching television, and occasionally playing on the
computer. Moreover, Peters stated that Hennessey tended to have poor hygiene
and unkempt hair. (Tr., pp. 59–59, 63–65).
When asked about Hennessey’s drug use, Peters stated that he believed
Hennessey had an addiction. He also testified that he frequently asked Hennessey
when he last used heroin, and Hennessey would respond that he had not used the
drug in a couple of months. Peters believed that before entering treatment
Hennessey would use heroin a couple of times a week; however, he was unaware
how long Hennessey had been using heroin, and estimated a time period of three to
five months. Peters was not aware whether Hennessey was using heroin while
working at any of his previous jobs or whether it caused him to leave any of those
jobs. (Tr., pp. 59–63).
Vocational expert Delores Gonzalez also testified before the ALJ. Gonzalez
stated that mortgage assistant is classified as sedentary semi-skilled work; cookie
baker is medium skilled work; dishwasher, sandwich maker, and cleaner are
medium unskilled work; retail sales clerk is light semiskilled work; and cashier and
fast food worker are light unskilled work. The ALJ asked Gonzalez to consider a
hypothetical individual with Hennessey’s education, training, work experience, and
alleged onset date who could understand, remember, and carry out at least simple
instructions for non-detailed tasks; adapt to routine, simple work changes; and
perform repetitive work according to set procedures, sequence, and pace.
Furthermore, this individual must avoid concentrated exposure to noise and will
have absences from work at least three times monthly. Moreover, for the first
hypothetical, the ALJ assumed substance use was material. Gonzalez responded
that this individual would not be able to perform any past work. When the ALJ
changed the hypothetical so that substance use was no longer material and the
individual would not have monthly absences from work, Gonzalez testified that the
individual could work as a cashier, sandwich maker, or cleaner. The ALJ next
limited the hypothetical to a position where the individual would respond
appropriately to supervisors and coworkers in a task-oriented setting and where
contact with others was casual and infrequent. Gonzalez responded that such a
person could work as an addresser, which was an unskilled position, or as a
cleaner. Finally, the ALJ limited the hypothetical again such that the individual
would have confrontations with his supervisors or coworkers up to two times
monthly. Gonzalez responded that these circumstances “would not allow for the
person to maintain employment.” (Tr., pp. 65–69).
Testimony at the June 6, 2012 Administrative Hearing
After the case was remanded by an order of the Appeals Council on
December 27, 2011, Hennessey testified again at a second hearing before the ALJ
on June 6, 2012. His caseworker, Bradley Peters, his mother, Isolde Hennessey, a
medical expert, Dr. James Reid, and a vocational expert, Linda Talley, also
Hennessey’s caseworker, Bradley Peters, discussed that he had noticed
changes in Hennessey’s abilities since July of 2010. He explained that he had
observed Hennessey suffering from extreme depression and also going back and
forth between acting verbally aggressive and hostile with unstable moods to
withdrawn, reserved, and isolated. Peters testified that, since July of 2010,
Hennessey had received psychiatric services and had attended co-occurring group
sessions for substance abuse, where he would submit to urine drug screens. He
explained that most of these screens had been positive for illegal drugs, at least for
marijuana, and that Hennessey had his first negative screen about four weeks
earlier. When asked about Hennessey’s drug use, Peters explained that he had
gone through periods of sobriety but had relapsed since his last hearing. He
explained that Hennessey’s moods varied from withdrawn to aggressive both when
using illegal substances and when going through withdrawal. (Tr., pp. 77–81).
Isolde Hennessey, Hennessey’s mother, also testified before the ALJ. She
stated that approximately one year earlier Hennessey went through a period of
withdrawal and she noticed “extreme, extreme aggressive behavior.” (Tr., p. 82).
Isolde explained that for about five days Hennessey was curled up in a ball
vomiting large amounts of blood, with blood also coming through his nose. She
stated that after those five days Hennessey could not eat very well and remained on
the couch, weak and sick. Isolde was unaware whether Hennessey was presently
using drugs, as she did not know where he went when he left the house. (Tr., pp.
When Hennessey testified, he explained that he had been treated for
depression, anxiety, and substance use, including detox treatment, since his last
hearing. Hennessey cited debilitating migraines and social anxiety as the main
reasons he could not work. Elaborating on his social anxiety issues, Hennessey
noted communication issues and stated that he did not get alone well with people.
He would have altercations with others on a weekly basis, after which he would
typically get frustrated and walk away. He testified that this type of incident had
recently caused him to quit his job at a cookie shop after three weeks, when he was
accused of baking cookies incorrectly, had a dispute with the manager, and quit.
Concerning his drug use, Hennessey reported that he last used heroin in the fall or
winter of 2011. He reported that he was probably using heroin three or four times
a week in 2011 and daily in 2010, although he could not recall whether he was
using heroin in 2007, 2008, or 2009. Hennessey also testified that he had been
using marijuana a few months earlier. He stated that his activities included seeing
his son once a week, mowing his yard, and using the computer. He also stated that
he would see his girlfriend a few days a week, typically at her house, and they
would generally watch a movie or cook dinner together. (Tr., pp. 88–99, 101–04).
Dr. James Reid, a clinical psychologist, testified as a medical expert before
the ALJ. He first summarized Hennessey’s medical records, discussing the various
diagnoses included in those records. (Tr., pp. 104–09). Next, he was asked
whether Hennessey met or equaled any listing for the period of September 1, 2007
to June 30, 2008, for the purpose of the Title II determination. Dr. Reid responded
that Hennessey did not meet or medically equal a listing for this time period, but
had an impairment of heroin dependence. (Tr., pp. 109–10). Dr. Reid was also
asked how he would mark this individual, during the specified Title II time frame,
in activities of daily living; maintaining social function; concentration, persistence,
and pace; and occurrences of decompensation. Dr. Reid stated that, with drugs,
activities of daily living would be mildly impaired; social functioning, moderately
impaired; and concentration, persistence, and pace, markedly impaired; with no
occurrences of decompensation that meet the required criteria. However, without
drugs, activities of daily living would not be impaired; social functioning would be
perhaps mildly impaired; concentration, persistence, and pace would be mildly
impaired; and there would be no occurrences of decompensation of any duration.
(Tr., pp. 111–12). Next, the ALJ asked Dr. Reid whether Hennessey met or
equaled any listing from September 1, 2007 to present, for the Title XVI
determination. Dr. Reid replied that Hennessey met the criteria for major
depression and opioid dependence, but not social phobia. (Tr., 110–11). For this
time period, Dr. Reid indicated that, with drugs, activities of daily living would be
moderately impaired; social functioning, markedly impaired; concentration,
persistence, and pace, markedly impaired; and no documented episodes of
decompensation. Without drugs, activities of daily living would not be impaired;
social function, mildly impaired; concentration, persistence, and pace, not
impaired; and no episodes of decompensation. (Tr., p. 112).
When asked whether he considered the migraine headache history as well as
the psychiatric diagnoses, Dr. Reid replied that he did; however, he “did wonder
whether the headaches were the result of the heroin.” (Tr., pp. 112–13). Dr. Reid
was also asked what authority he relied upon for the conclusion that Hennessey’s
activities of daily living would be mildly impaired with drugs and not impaired
without drugs, during the Title II time frame. He replied that he relied on the
psychiatric review technique completed in October of 2009 as well as Dr. Zhang’s
assessment of a 60 GAF score in October of 2006. Moreover, Dr. Reid testified
that he relied on his education, experience, and background. He further noted his
experience treating three or four heroin-dependent drug rehabilitation patients
during his internship in San Francisco and his background conducting consultative
examinations and serving as an expert medical witness for thousands of Social
Security claimants, some of whom suffered from heroin dependence. He also
discussed his years of experience as an instructor and as a supervisor for a clinical
psychology program of doctoral students treating and evaluating patients. He stated
that, in this capacity, he had supervised cases where heroin dependence was an
issue and had consulted medical literature when discussing treatment plans with
the students. (Tr., 113–17).
Vocational expert Linda Talley also testified before the ALJ. Talley
testified that sandwich maker is classified as medium unskilled work; loan
interviewer or mortgage assistant and customer service representative are both
sedentary semi-skilled work; bakery sales clerk is medium or light unskilled work;
cashier is light unskilled work; and dishwasher and janitor are medium unskilled
work. (Tr., 121–24). The ALJ asked Talley to consider a hypothetical individual
with Hennessey’s education, training, work experience and alleged onset date who
had no exertional limitations but must avoid concentrated exposure to noise and
could understand, remember, and carry out at least simple instructions for nondetailed tasks; demonstrate adequate judgment to make simple work-related
decisions; adapt to routine, simple work changes; and perform repetitive work
according to set procedures, sequence, and pace. Talley responded that such an
individual could perform past work as a sandwich maker, bakery sales clerk,
cashier, dishwasher, or janitor. (Tr., 124–28). The ALJ then added to the first
hypothetical that the individual must be able to maintain concentration and
attention for two-hour segments over an eight-hour period and must respond
appropriately to supervisors and coworkers in a task-oriented setting where contact
with others is casual and infrequent, asking whether these variations would change
the jobs Talley previously provided for the first hypothetical. She responded that,
based on these variations, she would eliminate the sandwich maker and cashier
positions and would also cut down the number of bakery positions by half, as half
would not meet these criteria. Furthermore, Talley added that this individual could
work as a dipper, which is an unskilled position. (Tr., 128–29). The ALJ next
limited the previous hypothetical such that the individual would not be able to
respond appropriately to supervisors and coworkers in a task-oriented setting
where contact with others was casual and infrequent; perform repetitive work
according to set procedures, sequence, and pace; or perform work at a normal pace,
even without production quotas. Furthermore, the ALJ added that this individual
would have three absences per month. Talley responded that this individual would
not be able to perform any jobs without accommodation. (Tr., 129–30).
III. Standard for Determining Disability Under the Social Security Act
Social security regulations define disability as the inability to engage in 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 twelve months. 42
U.S.C. § 416(i)(1); 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 404.1505(a); 20
C.F.R. § 416.905(a).
Determining whether a claimant is disabled requires the Commissioner to
evaluate the claim based on a five-step procedure. 20 C.F.R. § 404.1520(a),
416.920(a); see also McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir.2011)
(discussing the five-step process).
First, the Commissioner must decide whether the claimant is engaging in
substantial gainful activity. If so, he is not disabled.
Second, the Commissioner determines if the claimant has a severe
impairment which significantly limits his physical or mental ability to do basic
work activities. If the impairment is not severe, the claimant is not disabled.
Third, if the claimant has a severe impairment, the Commissioner evaluates
whether it meets or exceeds a listed impairment found in 20 C.F.R. Part 404,
Subpart P, Appendix 1. If the impairment satisfies a listing in Appendix 1, the
Commissioner will find the claimant disabled.
Fourth, if the claimant has a severe impairment and the Commissioner
cannot make a decision based on the claimant’s current work activity or on medical
facts alone, the Commissioner determines whether the claimant can perform past
relevant work. If so, he is not disabled.
Fifth, if the claimant cannot perform past relevant work, the Commissioner
must evaluate whether the claimant can perform other work in the national
economy. If not, he is declared disabled. 20 C.F.R. § 404.1520; § 416.920.
Evaluation of Mental Impairments
The Commissioner has supplemented the familiar five-step sequential
process for evaluating a claimant’s eligibility for benefits with additional
regulations dealing specifically with mental impairments. 20 C.F.R. § 404.1520a.
As relevant here, the procedure requires an ALJ to determine the degree of
functional loss resulting from a mental impairment. The ALJ considers loss of
function to four capacities deemed essential to work. 20 C.F.R. § 404.1520a(c)(2).
These capacities are: (1) activities of daily living; (2) social functioning; (3)
concentration, persistence or pace; and (4) deterioration or decompensation in
work or work-like settings. 20 C.F.R. § 404.1520a(c)(3). After considering these
areas of function, the ALJ rates limitations in the first three areas as either: none;
mild; moderate; marked; or extreme. The degree of limitation in regard to
episodes of decompensation is determined by application of a four-point scale:
none; one or two; three; or four or more. See 20 C.F.R. § 404.1520a(c)(4).
Evaluation of Substance Use Disorder
Even if an applicant would otherwise qualify as disabled, an “individual
shall not be considered disabled for purposes of this title if alcoholism or drug
addiction would (but for this subparagraph) be a contributing factor material to the
Commissioner’s determination that the individual is disabled.” 42 U.S.C. §
423(d)(2)(C) (regarding disability insurance benefits); see also 42 U.S.C. §
1382c(a)(3)(J) (regarding supplemental security income). “In the case of
alcoholism and drug addiction, an ALJ must first determine if a claimant’s
symptoms, regardless of cause, constitute disability.” Kluesner v. Astrue, 607 F.3d
533, 537 (8th Cir.2010). “If the ALJ finds a disability and evidence of substance
abuse, the next step is to determine whether those disabilities would exist in the
absence of the substance abuse.” Id. “When a claimant is actively abusing drugs,
this inquiry is necessarily hypothetical, and thus more difficult than if the claimant
had stopped.” Id. “The claimant has the burden to prove that alcoholism or drug
addiction is not a contributing factor.” Id.
IV. The ALJ’s Decision
ALJ Decision Dated October 29, 2010
The ALJ first determined that Hennessey met the insured status
requirements throughout the period of alleged disability and that he had not
engaged in any substantial gainful activity since the onset date.
At the second step, the ALJ determined that Hennessey had the severe
impairments of migraines, major depressive disorder, and opiate dependence.
Considering the four functional areas as required in cases where a claimant
alleges a mental impairment, the ALJ found that Hennessey had mild limitations in
activities of daily living, moderate limitations in the areas of social functioning and
concentration, persistence, or pace, and no episodes of decompensation.
Proceeding to the third step, the ALJ determined that none of Hennessey’s
impairments met or medically equaled a listing.
At step four, the ALJ found that, based on all of the impairments, including
the substance use disorder, Hennessey had the RFC to perform a full range of work
at all exertional levels, except that he must avoid concentrated exposure to noise.
Furthermore, the ALJ found that Hennessey retained the ability to understand,
remember, and carry out at least simple instructions and non-detailed tasks; adapt
to routine, simple work changes; and perform repetitive work according to set
procedures, sequence, and pace. The ALJ also noted that, because of Hennessey’s
continued use of opiates, he could be expected to be absent from work at least
three times per month, which would preclude him from all sustained, competitive
employment as no employer would tolerate such absences. However, the ALJ
found that, absent the use of opiates, Hennessey would be able to demonstrate the
reliable attendance and adherence to a schedule expected in competitive
The ALJ based his RFC findings, in part, on Hennessey’s testimony at the
hearing regarding his longstanding history of migraines and depression, history of
heroin use, college attendance, and daily activities, which mostly consisted of lying
in bed and watching television.
The ALJ also cited to several of Hennessey’s medical records in support of
his RFC finding. He considered treatment notes from October of 2006, when
Hennessey was hospitalized for a suspected overdose on heroin. The ALJ also
relied on Hennessey’s records from his ongoing psychiatric treatment with Dr.
Minchin, his consultative psychological examination with Dr. Moore, his
hospitalization at Metropolitan Psychiatric Center, and his psychiatric treatment
with Dr. Cologne.
After determining Hennessey’s RFC, and relying the vocational expert’s
testimony, the ALJ found that Hennessey was unable to perform past relevant
work. He stated this finding was based on “excessive absenteeism,” as Hennessey
was expected to have absences from work three times or more each month. (Tr., p.
The ALJ next determined, at step five, that Hennessey could not perform
other work in the national economy. He found that Hennessey’s ability to perform
this work was “impeded by additional limitations from all of the impairments,
including the substance use disorder, specifically his anticipated excessive
absenteeism.” Therefore, a finding of disabled was appropriate. (Tr., pp. 147–48).
However, the ALJ next evaluated whether Hennessey’s limitations would remain if
he stopped the substance use.
Returning to step two, the ALJ found that if Hennessey stopped the
substance use, he would continue to have a severe impairment or combination of
The ALJ also considered the four functional areas as required in cases where
a claimant alleges a mental impairment, although this time assuming an absence of
substance use. The ALJ found that, under these circumstances, Hennessey would
have mild restrictions in activities of daily living, moderate difficulties in social
functioning, moderate difficulties in concentration, persistence, or pace, and no
episodes of decompensation.
At step three, the ALJ determined that, without the substance use,
Hennessey’s impairments still did not meet or medically equal a listing. He
concluded that, although Hennessey had been treated for migraine headaches, there
was no evidence to suggest that these headaches were so severe or frequent as to
preclude work activity. Furthermore, Hennessey stated at the hearing that he was
only taking over-the-counter Excedrin medication for headaches. The ALJ pointed
out that “pain, which can be remedied or controlled with over the counter
analgesics normally, will not support a finding of disability.” (Tr., p. 148).
The ALJ found, at step four, that if Hennessey stopped the substance use, he
would have the RFC to perform a full range of work at all exertional levels, but
should avoid concentrated exposure to noise. Further, Hennessey would retain the
ability to understand, remember, and carry out at least simple instructions and nondetailed tasks; adapt to routine, simple work changes; and perform repetitive work
according to set procedures, sequence, and pace.
In making the RFC determination, the ALJ considered Hennessey’s
headache history, as discussed above.
When considering Hennessey’s history of depression, the ALJ relied partly
on treatment notes from Dr. Minchin, finding that these records “do not suggest an
individual who would be precluded from all work activity due to mental healthrelated symptoms.” (Tr., p. 150). Treatment notes from one appointment indicate
that Hennessey quit his job, yet was able to maintain “B” grades in his college
courses. Dr. Minchin also described Hennessey’s condition as “improved” during
another appointment, and Hennessey reported that school was “going well.” (Tr.,
p. 151). The ALJ also cited to one instance when Hennessey discontinued a
prescribed anti-depressant without consulting his physician, noting, “A claimant
who fails to follow prescribed treatment for a remediable condition, which would
restore the ability to work, without good reason, is not under a disability.” (Tr., p.
The ALJ also relied on treatment notes from Hennessey’s hospitalization at
Metropolitan Psychiatric Center in April of 2010. His treatment at this facility was
said to have been “complicated by his heavy drug use, mainly heroin,” which
suggested that his drug use was considered to be playing an integral role in causing
his symptoms, in the ALJ’s opinion. (Tr., p. 151). The physicians noted
significant improvements in Hennessey’s depressive symptoms during his
hospitalization, with complete resolution of his suicidal ideations. Furthermore,
Hennessey was observed to be exaggerating his depressive symptoms when
interacting with physicians and psychologists, but it was noted that his affect was
generally euthymic during his stay at the facility. The ALJ found that these
observations suggest Hennessey may at times overstate his symptoms. In addition,
the ALJ noted that Hennessey’s symptoms improved readily with appropriate
treatment and “enforced abstinence” from heroin, indicating that his symptoms
would not be so severe as to preclude work activity if he were to remain abstinent
from heroin use. (Tr., p. 151). Treatment notes from Hennessey’s hospitalization
at this facility also reveal that, at one point, he was found to be “stacking” his pain
medications and admitted he was planning to collect them and use them to get
high. The ALJ stated, “Such apparent drug-seeking behavior detracts greatly from
the claimant’s overall credibility.” (Tr., p. 151). Moreover, according to the ALJ,
Hennessey bears the burden of proving substance use is not a contributing factor
material to the claimed disability.
In further support of the RFC finding, the ALJ found that Hennessey’s daily
activities also provide evidence that he is capable of functioning at a level that
would not preclude sustained work activity. Hennessey testified at the first hearing
that he still took care of his infant son at times and also reported to Dr. Minchin in
August of 2009 that he was caring for his son thirty to forty hours weekly.
Furthermore, in a function report dated July 23, 2009, Hennessey indicated that he
mowed his backyard each week, drove himself as needed, and used computers
“often” as a hobby. Hennessey also maintained at least passing grades in his
college classes. The ALJ noted, additionally, that a third party report suggested
that Hennessey had capabilities beyond those alleged, including preparing his own
meals, seeing friends, reading, and playing Frisbee.
Further, the ALJ considered the Missouri State Agency reviewers’ opinions
in determining Hennessey’s RFC, finding them generally consistent with his
decision and the record as a whole.
Regarding Hennessey’s credibility, the ALJ found that that, if Hennessey
stopped the substance use, his medically determinable impairments could
reasonably be expected to produce some of the alleged symptoms; however,
Hennessey’s statements concerning the intensity, persistence, and limiting effects
of these symptoms “are not entirely credible.” (Tr., p. 150).
The ALJ next found that, based on the vocational expert’s testimony, if
Hennessey stopped the substance use he would be able to perform past relevant
work as a cashier and a sandwich maker. Therefore, the ALJ found that Hennessey
is not disabled.
Because Hennessey would not be disabled if he stopped the substance use,
the ALJ found, his substance use disorder is a contributing factor material to the
determination of disability.
Appeals Council Order of Remand Dated December 27, 2011
The Appeals Council vacated the ALJ’s decision and remanded the case for
further determinations regarding Hennessey’s difficulties in social functioning.
The Council noted that medical evidence shows Hennessey has an “anxiety
disorder manifested by social phobia and distrust.” (Tr., p. 161). Because the ALJ
did not identify any limitations resulting from Hennessey’s social functioning, the
Appeals Council found the RFC evaluation to be inadequate. Therefore, the order
required the ALJ to further consider Hennessey’s maximum RFC, taking into
account limitations resulting from Hennessey’s difficulties in social functioning.
The order moreover instructed the ALJ to obtain supplemental evidence from a
vocational expert to clarify the effect of these limitations on Hennessey’s
ALJ Decision Dated July 27, 2012
The ALJ first determined that Hennessey met the insured status
requirements through June 30, 2008 and that he had not engaged in substantial
gainful activity since the onset date.
At step two, the ALJ determined that Hennessey had the severe impairments
of migraine headaches, major depression, and opiate dependence.
Next, the ALJ considered the four functional areas as required in cases
where the claimant alleges a mental impairment.
He found Hennessey had
moderate restrictions in activities of daily living, marked difficulties in social
functioning and concentration, persistence, or pace, and repeated episodes of
decompensation. In support of these findings, the ALJ noted that Hennessey could
not often take care of his personal care or meal preparation; would hardly ever go
outside; had become antisocial; reported a poor ability to develop and maintain
relationships; and alleged difficulties with memory, concentration, and completing
Furthermore, Hennessey had experienced one or two episodes of
decompensation considering the effects of substance use. On the other hand, the
ALJ considered that Hennessey could still engage in activities such as driving and
going out alone; would often present for examinations on time, clean, appropriately
dressed, and well-kempt; reported no problems getting along with others; could
follow instructions, handle stress, and deal with changes “well enough”; and,
according to treatment notes, presented at appointments with normal speech and
intact thought processes, memory, and general fund of knowledge.
Based on the above considerations, the ALJ found at step three that
Hennessey’s impairments, including the substance use disorder, met sections 12.04
and 12.09 of 20 C.F.R., Part 404, Subpart P, Appendix 1.
The ALJ thereafter returned to step two to determine whether Hennessey’s
limitations would remain if he stopped the substance use. The ALJ found that, if
Hennessey stopped the substance use, he would continue to have a severe
impairment or combination of impairments.
The ALJ again considered the four relevant functional areas, concluding that
if Hennessey stopped the substance use, he would have mild restrictions in
activities of daily living, moderate difficulties in social functioning and in
concentration, persistence, or pace, and no episodes of decompensation of
extended duration. In support of this finding, the ALJ noted that Hennessey’s
allegations were less credible when the effects of substance use are not considered.
Specifically, Hennessey’s allegations regarding lack of motivation, not spending
time with others, limited sleep, and difficulties with memory, concentration, and
completing tasks, were found to be less credible without consideration of ongoing
substance use. The ALJ pointed out that during periods of alleged abstinence,
Hennessey presented as pleasant and calm; his mood was “much better”; his affect
was euthymic; his thoughts were logical, sequential, and goal-directed; his memory
was good; and he was cooperative and able to answer all questions. Furthermore,
Hennessey reported using a computer and spending time with his girlfriend eating
dinner or watching movies.
At the third step, the ALJ determined if Hennessey stopped the substance
use, none of his impairments would meet or medically equal a listing.
At step four, the ALJ found that if Hennessey stopped the substance use, he
would have the RFC to perform a full range of work at all exertional levels, but
should avoid concentrated exposure to noise. Moreover, he could understand,
remember, and carry out at least simple instructions and non-detailed tasks;
maintain concentration and attention for two hour segments over an eight-hour
period; respond appropriately to supervisors and co-workers in a task-oriented
setting where contact with others is casual and infrequent; adapt to routine, simple
work changes; and perform repetitive work according to set procedures, sequence,
In making the RFC finding, the ALJ first considered Hennessey’s alleged
inability to work because of headaches and depression. The ALJ noted that,
according to Hennessey, his headaches cause pain, vomiting, and diarrhea;
incapacitate him; keep him from sustaining a regular schedule or work hours; and
cause him difficulty in concentration and completing tasks. Although
Hennessey’s friend and mother corroborated these allegations, the ALJ attributed
little weight to these individuals’ and Hennessey’s social worker’s claims. None of
these individuals were acceptable medical sources and the ALJ found their
statements to stand in sharp contrast to the overall record and objective findings,
when not considering the effects of substance use.
Although the ALJ gave Hennessey the benefit of the doubt regarding his
functional limitations, he found that Hennessey’s allegations regarding his
symptoms and limitations without the effects of substance use were “generally
inconsistent and unpersuasive.” (Tr., p. 16). The ALJ based this credibility
finding a variety of factors, including the conservative nature of Hennessey’s
treatment, the lack of any medical advice to refrain from working, indications that
Hennessey is able to care for himself and his son, Hennessey’s ability to drive and
spend time with friends and girlfriends, and Hennessey’s failure to report to
doctors the significant headache symptoms alleged at his hearing, such as pain,
vomiting, diarrhea, and incapacitation. The ALJ also noted that Hennessey worked
only sporadically before his alleged onset date with inconsistent and often low
earnings. Furthermore, Hennessey worked after his alleged onset date, indicating
that he may have greater capabilities than has claimed. These issues, according to
the ALJ, when combined with the medical evidence, raise some doubt as to
Hennessey’s credibility. Specifically, this information calls into question
Hennessey’s motivation to work and also raises doubt as to whether his
unemployment is the result of medical impairments. Another factor in the ALJ’s
credibility analysis was the fact that Hennessey has an extensive history of
substance dependence and relapse, and thus his current sobriety allegations were
not considered credible. The ALJ found that, during periods of compliance and
abstention from substance use, Hennessey showed improvement in his symptoms.
Finally, the ALJ found that Hennessey exhibited “extensive noncompliance with
his treatment,” citing to treatment notes for support that Hennessey would relapse
on heroin, discontinue medications without permission, take more medication than
prescribed, take medications prescribed to others, get medications off the street, let
medications run out, and fail to attend group meetings for his substance use. (Tr.,
The ALJ also gave little weight to Dr. Moore’s evaluation and to the
psychiatric review technique completed by Dr. DeVore in making his RFC
findings. According to the ALJ, Dr. Moore’s evaluation was inconsistent, as it
failed to diagnose a substance use disorder although Hennessey reported past
addiction. Furthermore, Dr. Moore did not have a treating relationship with
Hennessey. Similarly, Dr. Devore did not examine Hennessey or hear his
testimony, and additional evidence was added after he formed his opinion.
Dr. Reid’s testimony was accorded significant weight by the ALJ, as his
opinions were found to be supported by explanation and medical evidence and to
reflect considerations by a specialist familiar with Social Security regulations. The
ALJ noted that Hennessey’s counsel objected to Reid’s testimony on the ground
that he failed to offer specific, supporting authority for his conclusion that
substance use was material. Hennessey’s counsel argued that, without such
authority, Dr. Reid’s opinion lacked adequate legal foundation and thus was not
entitled to consideration as substantial evidence. However, the ALJ overruled this
objection and denied the request for a specific list of authorities relied on by Dr.
Reid. He found that there was more than an adequate basis and foundation for Dr.
Reid’s opinion, as he relied on his education, experience, and background, which
included work with drug rehabilitation patients, and also “provided detailed
testimony citing exhibits and page numbers relied upon in forming his opinions.”
(Tr., pp. 18–19). Moreover, Hennessey’s counsel stipulated to Dr. Reid’s
qualifications as an expert.
At step four, the ALJ found that if Hennessey stopped the substance use, he
would be unable to perform past relevant work.
Next, at the fifth step, the ALJ determined that if Hennessey stopped the
substance use, considering his age, work experience, and RFC, there would be a
significant number of jobs in the national economy that he could perform. The
ALJ based this finding on the vocational expert’s testimony that an individual with
Hennessey’s limitations could work as a pastry baker, dishwasher, and dipper.
Therefore, because Hennessey could make successful adjustments to this work,
which exists in significant numbers in the national economy, the ALJ found that
Hennessey was not disabled.
Because Hennessey would not be disabled if he stopped the substance use,
the ALJ found Hennessey’s substance use disorder to be a contributing factor
material to the determination of disability.
V. Standard of Review
This court’s role on review is to determine whether the Commissioner’s
decision is supported by substantial evidence on the record as a whole. Rucker for
Rucker v. Apfel, 141 F.3d 1256, 1259 (8th Cir.1998). “Substantial evidence” is
less than a preponderance but enough for a reasonable mind to find adequate
support for the ALJ’s conclusion. Id. When substantial evidence exists to support
the Commissioner’s decision, a court may not reverse simply because evidence
also supports a contrary conclusion, Clay v. Barnhart, 417 F.3d 922, 928 (8th
Cir.2005), or because the court would have weighed the evidence differently.
Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir.1992).
To determine whether substantial evidence supports the decision, the court
must review the administrative record as a whole and consider:
(1) the credibility findings made by the ALJ;
(2) the education, background, work history, and age of the claimant;
(3) the medical evidence from treating and consulting physicians;
(4) the plaintiff’s subjective complaints relating to exertional and
(5) any corroboration by third parties of the plaintiff’s impairments; and
(6) the testimony of vocational experts, when required, which is based upon
a proper hypothetical question.
Stewart v. Sec’y of Health & Human Servs., 957 F.2d 581, 585–86 (8th Cir.1992).
A. The ALJ’s RFC Findings Are Supported by Sufficient Medical Evidence
Ability to Perform Light Activities
Hennessey contends that his ability perform sporadic, light activities does
not support the ALJ’s RFC finding, which is based on a full time work schedule.
Although Hennessey’s “ability to do activities such as light housework and visiting
with friends” does not, by itself, support a finding that he can engage in full-time,
competitive work, Burress v. Apfel, 141 F.3d 875, 881 (8th Cir.1998), the ALJ
relied on more than these abilities in determining Hennessey’s RFC and assessing
his credibility. For example, the ALJ found that Hennessey was able to drive, go
out alone, shop for clothes and food, use a computer, and spend time with his son.
Medhaug v. Astrue, 578 F.3d 805, 817 (8th Cir.2009) (activities such as shopping
and driving are inconsistent with complaints of disabling pain and detract from
plaintiff’s credibility). The record indicates, moreover, that Hennessey was able to
do these activities regularly. Cf. Burress, 141 F.3d at 881 (finding it significant
that a plaintiff was only able to do light housework occasionally). Furthermore,
the ALJ indicated that the fact Hennessey worked after his alleged onset date was
relevant when considering his true capabilities. Smith v. Colvin, 756 F.3d 621, 626
(8th Cir.2014) (considering work after a plaintiff’s alleged onset date a relevant
factor in the ALJ’s credibility determination).
Failure to Follow a Course of Treatment
A second argument presented was that, in discussing Hennessey’s failure to
follow a course of treatment, the ALJ failed to conduct an inquiry into the
circumstances surrounding this failure and determine whether this treatment would
restore the ability to work or sufficiently improve the condition. However, such an
inquiry is not required in this case, as Hennessey was not denied benefits for
failure to follow a course of treatment; instead, this failure merely factored into the
ALJ’s credibility determination and RFC assessment. See Burnside v. Apfel, 223
F.3d 840, 844 (8th Cir.2000) (noting that this inquiry must be conducted before a
plaintiff is denied benefits for failure to follow a course of treatment). This
analysis is also unnecessary because Hennessey’s ability to comply with treatment
was not in dispute. Cf. Kirby v. Sullivan, 923 F.2d 1323, 1328 (8th Cir.1991)
(requiring ALJ to determine plaintiff’s subjective ability to comply with prescribed
treatment regimens given the fact that plaintiff suffered from borderline
intelligence and memory impairment). Specifically, the record does not indicate
that Hennessey has any physical, mental, educational, or linguistic limitations such
that his failure to follow treatment is acceptable. 20 § C.F.R. 416.930(c) (listing
these as acceptable reasons for failure to follow prescribed treatment).
The ALJ considered both Hennessey’s failure to abstain from substance use
and his failure to comply with other medication and treatment instructions in
finding that, without consideration of the effects of substance use, Hennessey’s
allegations “are generally inconsistent and unpersuasive.” Guilliams v. Barnhart,
393 F.3d 798, 802 (8th Cir.2005) (“A failure to follow a recommended course of
treatment…weighs against a claimant’s credibility”).
Regarding Hennessey’s failure to abstain from substance use, the ALJ noted
that Hennessey had used heroin frequently for several years; experienced
withdrawal symptoms after stopping heroin use; gone through substance abuse
treatment; maintained alleged periods of sobriety; relapsed repeatedly; and
overdosed on heroin at least once, in 2006, although Hennessey denied any past
overdosing. The ALJ also discussed Hennessey’s alcohol and marijuana use and
his attempt during a hospital stay to “stack” his medications and use them
collectively to get high. Though medical providers have advised Hennessey that
his medications would have a reduced effect with continued substance use, and
have repeatedly instructed him to discontinue substance use altogether, Hennessey
has continued to relapse. All of these considerations led the ALJ to determine that
Hennessey’s current allegations of abstention from substance use were not
credible; a determination that factored into his RFC assessment.
Next, the ALJ considered Hennessey’s failure to comply with other
medication and treatment instructions. Specifically, the ALJ mentioned that
Hennessey had taken himself off of medications without consulting his physicians,
taken more medications than prescribed, taken medications prescribed to someone
else, gotten medications off of the street, let medications run out, and failed to
attend NA meetings. These compliance issues also factored into the ALJ’s
credibility and RFC determinations.
Failure to follow a course of treatment was only one factor the ALJ relied
upon when assessing Hennessey’s credibility and comparing his allegations to the
record as a whole. Because this is a proper consideration when assessing
credibility, and because the ALJ provided sufficient reasons for discrediting
Hennessey’s allegations on this basis, the ALJ appropriately considered this factor
in making his credibility determination. See Buckner v. Astrue, 646 F.3d 549 (8th
Cir.2011) (noting that courts should defer to the ALJ’s credibility finding when the
ALJ explicitly discredits a claimant’s testimony and gives good reason to do so).
Improvement with Treatment
Hennessey next argues that the ALJ did not cite any evidence that his
condition improved with treatment. However, the ALJ in fact cited to two pieces
of evidence to support his finding that Hennessey’s symptoms improved with
treatment compliance, including abstention from substance use. First, the ALJ
cited to a treatment note from an appointment with Dr. Ahmed in May of 2012. At
that time, Hennessey reported that he was “doing okay” and that he had
experienced one “good week” with increased medication and three weeks of
sobriety. (Tr., p. 641). The ALJ also cited to records from Hennessey’s inpatient
hospital stay at Metropolitan Psychiatric Center during April of 2010. With
treatment and sobriety, there was “significant improvement” observed regarding
Hennessey’s depressive symptoms, including complete resolution of his suicidal
ideations and “significant improvement” in his affect, with euthymic affect
observed most of the time. The physicians further noted that, upon discharge,
Hennessey was calm, cooperative, well groomed, able to answer all questions,
pleasant, alert, and oriented, with a “much better” mood and a “euthymic, full
range, stable” affect. Additionally, Hennessey’s thoughts were logical, sequential,
and goal-directed and he showed good future planning. During his stay at
Metropolitan Psychiatric Center, Hennessey was also noted to be exaggerating his
symptoms during interactions with the physicians, but “vocal, verbal, and
laughing” with other residents in the hospital. (Tr., p. 560).
The ALJ only relied on this medical evidence as a factor in assessing
Hennessey’s credibility. Renstrom v. Astrue, 680 F.3d 1057, 1066 (8th Cir.2012)
(considering plaintiff’s improvement with treatment as a factor in credibility
determination). Because the ALJ provided support for his finding and sufficiently
justified his reliance on this factor in discrediting Hennessey’s allegations, I defer
to his judgment. Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir.2000) (if adequately
explained and supported, credibility findings are for the ALJ to make).
Hennessey also argues that, in contrast to the ALJ’s finding that his
symptoms improved with treatment, those who interact with him most, his mother
and social worker, indicated that his functioning actually did not improve with
treatment compliance and sobriety. The ALJ assessed these individuals’
testimonies limited weight because they are not acceptable medical sources and,
according to the ALJ, their statements “stand in sharp contrast to the overall record
and objective findings when not considering the effects of substance use.”
The ALJ’s finding that Hennessey’s mother and social worker’s allegations
are entitled to limited weight is consistent with Social Security Ruling 06-03p.
This ruling clarifies that the weight attributed to “other sources,” which includes
both parents and social workers, depends on the particular facts of the case, the
source of the opinion, and the issues the opinion is about, as well as other factors.
SSR 06-03p, 71 Fed. Reg. 45593 (Aug. 9, 2006). The facts of this case are indeed
unique. Because there is medical evidence of a substance use disorder, the ALJ
must make additional findings about whether this disorder is material to the
determination of disability and the extent to which any limitations would remain
absent the substance use. Moreover, the issues discussed during Hennessey’s
mother and social worker’s testimonies further complicated the ALJ’s task of
separating Hennessey’s limitations from his ongoing substance use. Though both
of these individuals indicated they believed Hennessey had serious impairments
and various difficulties in functioning, these assertions were intertwined with
discussions of Hennessey’s substance use. Furthermore, Hennessey’s social
worker could not confirm whether Hennessey ever tested positive for heroin and
his mother was unsure whether he was still using drugs. Especially in light of
these unique circumstances, I find that the ALJ’s decision to afford these
testimonies little weight is supported by substantial evidence.
Medical Expert’s Testimony
Hennessey again challenges Dr. Reid’s testimony, asserting that the medical
expert who testified at his hearing does not have an extensive background or
experience sufficient enough to overcome the lack of foundation for his opinion.
Hennessey’s counsel’s objection to Dr. Reid’s testimony at the hearing was
overruled by the ALJ, who found more than an adequate basis and foundation for
Dr. Reid’s opinion.
The ALJ found that Dr. Reid’s opinions were supported by explanation and
medical evidence. Furthermore, the ALJ noted that Dr. Reid was not required to
rely on any specific, supporting authority in concluding that substance use was
material. On the contrary, his education, experience, and background, paired with
his detailed testimony regarding Hennessey’s medical records, amounted to a
sufficient foundation on which to base his conclusions. The ALJ, moreover,
pointed out that Hennessey’s counsel stipulated to Dr. Reid’s qualifications as an
expert at the hearing.
Because Dr. Reid possesses adequate qualifications and his conclusions are
consistent with the record as a whole, I reject Hennessey’s challenge to his
testimony. First, Dr. Reid’s opinion regarding Hennessey’s limitations in activities
of daily living without the effects of substance use did not lack an adequate
foundation. He based this conclusion on his review of the record, and particularly
Hennessey’s medical records, explicitly citing to two of those treatment notes. Cf.
Finch v. Astrue, 547 F.3d 933, 936 (8th Cir.2008) (the conclusions of medical
experts may be rejected when they are inconsistent with the record as a whole).
The ALJ noted that Dr. Reid “provided detailed testimony citing exhibits and page
numbers relied upon in forming his opinions.” Moreover, Dr. Reid also properly
relied on his education, experience, and background in forming his opinions, as his
qualifications are more than adequate. Dr. Reid is a psychologist who also has
experience in the area of substance use. He has treated heroin-dependent drug
rehabilitation patients, served as a medical witness for Social Security claimants
who suffered from heroin dependence, acted as an instructor and supervisor for
doctoral students who have assessed patients with heroin dependence, and relied
on medical literature regarding substance use in his role as an instructor. See
Harvey v. Barnhart, 368 F.3d 1013, 1016 (8th Cir.2004) (noting that an internist
physician possessed adequate qualifications by virtue of her education and
experience to make mental health findings because she had received psychiatric
training and had treated patients with psychological issues).
The ALJ’s RFC Findings
Hennessey further alleges that, assuming Dr. Reid’s testimony is legally
sufficient, the ALJ’s RFC findings are still not supported by “some” medical
evidence. He, first, argues that this requirement is not met because Dr. Reid did
not testify to the limitations as found in the decision and, second, because there is
no medical opinion that is synonymous with the RFC findings contained in the
Residual functional capacity “is the most [a person] can still do despite [his
or her] limitations.” 20 C.F.R. §§ 404.1545, 416.945. Although the ALJ must
determine a claimant’s RFC “based on all relevant evidence,” Roberts v. Apfel, 222
F.3d 466, 469 (8th Cir.2000), the RFC is a medical question. Therefore some
medical evidence must support the determination of the claimant’s RFC. Lauer v.
Apfel, 245 F.3d 700, 704 (8th Cir.2001). An ALJ “should obtain medical evidence
that addresses the claimant’s ability to function in the workplace.” Id. (internal
quotation omitted). However, although an ALJ must determine a claimant’s RFC
based upon all relevant evidence, the claimant bears the burden of establishing his
RFC. Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005).
Here, substantial evidence supported the ALJ’s determination of
Hennessey’s RFC. The ALJ found that if Hennessey stopped the substance use, he
would have the RFC to perform a full range of work at all exertional levels, except
he must avoid concentrated exposure to noise. Moreover, he could understand,
remember, and carry out at least simple instructions and non-detailed tasks;
maintain concentration and attention for two hour segments over an eight-hour
period; respond appropriately to supervisors and co-workers in a task-oriented
setting where contact with others is casual and infrequent; adapt to routine, simple
work changes; and perform repetitive work according to set procedures, sequence,
and pace. The ALJ properly considered and weighed the available medical
evidence as well as Hennessey’s testimony. Therefore, I reject Hennessey’s
argument that the ALJ’s RFC findings are not supported by any medical evidence.
In this case, the ALJ had the difficult task of determining Hennessey’s RFC
without the effects of substance use. Ultimately, the ALJ found that there were
still severe impairments that cause functional limitations, even without the effects
of substance use, but nonetheless that Hennessey retains the capacity to perform
activities within the RFC detailed above.
Before making his RFC determination, the ALJ engaged in an extensive
credibility analysis. After considering all the evidence, the ALJ accepted
Hennessey’s subjective allegations regarding his functional limitations in general,
but to some extent discredited Hennessey’s allegations when considering RFC
without the effects of substance use.
In analyzing Hennessey’s credibility, the ALJ first pointed out that the
medical evidence as a whole demonstrates that Hennessey’s treatment was
conservative in nature. His conditions did not require frequent hospitalizations and
were treated primarily through medication management and routine, follow-up
appointments. Moreover, the treatment notes contain no ongoing
recommendations for more aggressive treatment and no indications that Hennessey
is unable to work or engage in other activities. The ALJ next discussed
Hennessey’s migraines, finding that he had generally failed to report to his
providers the significant symptoms alleged at the hearing. For instance, Hennessey
failed to report vomiting, diarrhea, and complete incapacity such that he must rest
in a dark room, which he claims result from his migraine headaches. Nonetheless,
the ALJ cited to a treating physician’s diagnosis of migraine headaches and
explicitly stated that he considered this diagnosis in formulating Hennessey’s RFC.
The credibility assessment also cited medical evidence regarding Hennessey’s
substance use, which indicated long-term use of heroin, withdrawal episodes,
participation in substance abuse treatment, periods of sobriety, numerous relapses,
and overdose. Notably, this evidence also reveals that Hennessey was repeatedly
advised by his medical providers to maintain sobriety, and was also informed that
his prescribed medications would be less effective with continued drug use.
Regardless, however, Hennessey continually relapsed and, likewise, failed to
comply with other treatment instructions as well. The ALJ cited multiple treatment
notes revealing that Hennessey had taken himself off medications without
consulting a physician, taken more medication than prescribed, obtained
medications off the street, let medications run out, and failed to attend NA
meetings. A final factor in the ALJ’s credibility determination was the fact that
Hennessey’s symptoms improved during periods of treatment compliance and
sobriety. At least two medical records explicitly support this conclusion, while
most others are vague at best regarding the correlation between Hennessey’s
condition and his compliance. These factors were properly considered and
ultimately led to the ALJ’s conclusion, which is supported by substantial evidence,
that Hennessey’s allegations were not entirely credible.
The ALJ’s assessment of Hennessey’s credibility, including the medical
evidence discussed therein, certainly contributed to his RFC determination.
Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir.2010) (indicating that an ALJ’s
RFC findings were properly influenced by conclusions about the plaintiff’s
credibility). Specifically, this evidence support’s the ALJ’s determination that
Hennessey has a higher RFC without the effects of substance use, a finding that
Hennessey appears to dispute. Because Hennessey was found to lack credibility,
and perhaps because the treatment notes did not contain enough clarity regarding
the affect of substance use on Hennessey’s conditions, the ALJ obtained a medical
expert, Dr. Reid, to testify at the hearing. Even without the medical expert’s
testimony, however, the abundant medical evidence relied upon in the credibility
analysis, which was embedded in the ALJ’s RFC determination, would likely
satisfy the low burden of “some” medical evidence.
Granting the medical expert’s testimony significant weight, and relying on it
as medical evidence, was not error. The ALJ accorded Dr. Reid’s opinions
significant weight, finding that they were persuasive, supported by explanation and
by the medical evidence, and reflected considerations of the medical record by a
specialist who is familiar with Social Security regulations. Dr. Reid found that
Hennessey’s substance use was material to the determination of disability and also
provided a clear opinion regarding the limitations that would remain absent any
substance use. The ALJ’s reliance on these opinions was appropriate, especially
given the fact that other medical evidence in the record did not sufficiently clarify
whether Hennessey was higher functioning without drugs, although two treatment
notes did suggest that this was true. Furthermore, in assessing Hennessey’s RFC,
the ALJ was required to obtain medical evidence that addresses his ability to
function in the workplace. Wildman, 596 F.3d at 969. Because none of
Hennessey’s treating physicians limited his ability to work in general or made
unambiguous findings about his ability to function in the workplace without the
effects of substance use, Dr. Reid’s testimony was particularly helpful in this
regard. Dr. Reid also had the opportunity to examine the entire record and listen to
Hennessey’s testimony. For these several reasons, Dr. Reid’s opinions alone
would likely amount to “some” medical evidence on which an RFC finding could
be based. However, the ALJ did not consider this testimony in isolation, but in the
context of the record as a whole, including treating physicians’ notes and
Hennessey’s partially credible testimony. See Harvey v. Barnhart, 368 F.3d 1013,
1016 (8th Cir.2004) (generally a non-examining, consulting physician’s opinions
do not constitute “substantial evidence” alone, but do satisfy this standard when
considered as part of the record as a whole, which clearly provides substantial
support for an ALJ’s RFC findings). Thus, substantial evidence supports the
ALJ’s RFC determination, including at least “some” medical evidence.
Contrary to Hennessey’s argument, there is no requirement that the RFC
must explicitly match limitations described in a medical opinion or a medical
expert’s testimony. While an ALJ must consider “some” medical evidence and did
so here, as discussed above, he need not consider it exclusively. Cox v. Astrue,
495 F.3d 614, 619–20 (8th Cir.2007) (“Even though the RFC assessment draws
from medical sources for support, it is ultimately an administrative determination
reserved to the Commissioner.”) Rather, he should consider all the evidence in the
record, including medical records, observations of treating physicians and others,
and Hennessey’s own allegations, to the extent they are credible. See Stormo v.
Barnhart, 377 F.3d 801, 807 (8th Cir.2004). Here, it appears the ALJ
appropriately took into account Hennessey’s limitations as evidenced in the record,
disregarding the effects of substance use. For instance, he limited contact with
others to “casual and infrequent,” to reflect Hennessey’s difficulties in social
functioning. He also excluded concentrated exposure to noise, thus acknowledging
Hennessey’s history of migraine headaches. Moreover, the ALJ apparently took
into account the history of depression, which causes low mood and fatigue, by
limiting Hennessey’s RFC to simple, non-detailed, repetitive work.
There is also plenty of evidence in the record to explain the ALJ’s decision
not to reduce Hennessey’s RFC to an even lower level. One such example is the
third party description of Hennessey’s daily activities. This report indicated that
Hennessey watches television and sleeps most of the day, but also reads, uses the
computer, mows the yard, does dishes, cleans around the house, prepares simple
meals and drives. Additionally, the record shows that Hennessey worked
periodically throughout his alleged disability, demonstrating that he is able to
function in the workplace at least to some degree. Further, no physician limited his
ability to work. Hennessey’s symptoms and the effectiveness of his medications
were also complicated by his drug use, according to his physicians. Two
physicians even noted significant improvements in his condition when he complied
with treatment and maintained his sobriety. Likewise, Dr. Reid testified that
Hennessey’s functioning would be higher without the effects of substance use.
Throughout the course of his treatment, Hennessey was also assessed several GAF
scores by various physicians, nearly all of which fell within the 50 to 60 range,
indicating “moderate” symptoms. However, it is significant that most, if not all, of
those scores were influenced by Hennessey’s heroin use. Therefore, they may
have been used for support that Hennessey would have a higher RFC without the
effects of substance use. In light of the evidence supporting the ALJ’s
determination, there is no basis for finding that he substituted his own opinion for
those of the medical experts in determining that Hennessey still retains the RFC
stated. He relied on medical experts, testimony, and other evidence in the record to
separate out the limitations that would remain in the absence of substance use, and
there was substantial evidence to support his findings.
Social Worker’s Testimony
Hennessey next contends that the ALJ did not attribute any weight to social
worker Brad Peters’ testimony, which amounted to error. He argues that Peters is
a more experienced resource than Dr. Reid in the area of coexisting mental
disorders and substance abuse. In particular, he believes that the court should have
relied upon Peters’ statement that he had observed no difference between
Hennessey’s symptoms with and without substance use.
Although Hennessey alleges that Peters’ testimony was not given any weight
by the ALJ, in fact, it was assessed limited weight for the stated reasons that Peters
is not an acceptable medical source and his statements “stand in sharp contrast to
the overall record and objective findings when not considering the effects of
substance use.” (Tr., p. 16). Because Peters is not an acceptable medical source,
the ALJ has “more discretion” in determining what weight to give his testimony.
Raney v. Barnhart, 396 F.3d 1007, 1010 (8th Cir.2005). Here, the ALJ found that
Peters’ statements were contradictory to the record as a whole when substance use
is removed from consideration. Hacker v. Barnhart, 459 F.3d 934, 937 (8th
Cir.2006) (an ALJ may “diminish or eliminate” the weight given to such an
opinion when it is inconsistent with the record).
As the ALJ pointed out, there were in fact many inconsistencies between
Peters’ testimony and the record as a whole. First, Peters testified that he had
observed Hennessey suffering from extreme depression since July of 2010.
However, other evidence in the record, including Hennessey’s own testimony,
establishes that he was using heroin frequently throughout this period. Hennessey’s
medical providers indicated that such drug use can worsen his depression and
make his medications ineffective. Another inconsistency is that, while Peters
alluded to Hennessey’s recent heroin use, he could not confirm or deny it. For
example, Peters compared Hennessey’s behavior when he is going through
withdrawal to when he is using “whatever substance.” (Tr., p. 79). Yet, when
asked about Hennessey’s drug screens, Peters responded that marijuana was the
“main one” for which Hennessey had tested positive and that he could not verify if
there was ever a positive test for heroin, or even how long heroin generally stays in
a person’s system. (Tr., p. 80). These statements are contradictory to Peters’
discussion of Hennessey’s withdrawal periods, as withdrawal does not generally
result from ending marijuana use. A third inconsistency is that Peters claims to
have observed “no difference” between Hennessey’s condition when he is
“claiming” to go through withdrawal and when he is using “whatever substance.”
(Tr., p. 79). This, again, conflicts with Peters’ uncertainty about what substances
Hennessey was using, whether he tested positive for heroin, and how long heroin
typically remains in the system. Moreover, treating physicians noted
improvements in Hennessey’s condition when he was sober and compliant with
medication. Dr. Reid’s opinion also suggested such a result. A final inconsistency
in Peters’ testimony becomes apparent when compared to Hennessey’s mother
Isolde’s testimony. While Peters explained that he observed no difference in
Hennessey’s aggressive behavior during substance use and withdrawal, Isolde
described a difference in behavior from withdrawal to early sobriety. While she
noted “extreme, extreme aggressive behavior” during withdrawal from substance
dependence, she noted no such behavior just after this period and stated that
Hennessey was instead weak and sick.
It is the ALJ’s duty to resolve conflicts in the evidence, Hacker, 459 F.3d at
936, and also his prerogative to exercise discretion in considering the amount of
weight to give a non-acceptable medical source’s opinion. Based on the many
inconsistencies between Peters’ testimony and the record as a whole, there is
substantial evidence to support the ALJ’s decision to assess limited weight to this
B. The Hypothetical Question Posed to the Vocational Expert Was Proper
Hennessey alleges that the hypothetical question posed to the vocational
expert, Linda Talley, did not capture the concrete consequences of his impairment.
Therefore, he argues that Talley’s conclusion, that there are a significant number of
jobs in the national economy that he could perform, does not constitute substantial
The hypothetical question posed to Talley was virtually identical to the
ALJ’s determination of Hennessey’s RFC without the effects of substance use.
The ALJ included in the hypothetical question those limitations found in the RFC
determination to exist in the absence of substance use. Pearsall v. Massanari, 274
F.3d 1211, 1220 (8th Cir.2001) (concluding that the hypothetical question was
proper because it included all impairments accepted as true by the ALJ and
excluded those impairments the ALJ had reason to discredit). Hennessey does not
specifically state why he believes the hypothetical question is inadequate, or what
additional limitations should have been included, but instead essentially reiterates
his argument that the ALJ’s RFC finding is not supported by sufficient evidence.
Fastner v. Barnhart, 324 F.3d 981, 987 (8th Cir.2003) (finding RFC used in
hypothetical question and vocational expert’s response were supported by
substantial evidence where plaintiff merely reiterated his challenge to the RFC
determination, which was already found to be satisfactory). Because the ALJ’s
RFC findings are supported by substantial evidence and the hypothetical question
included all of Hennessey’s limitations set forth by the ALJ in the RFC
determination, the hypothetical question was also supported by substantial
evidence. Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir.2006).
The hypothetical question posed to the vocational expert was thus proper,
and as a result her testimony that there were a significant number of jobs that
Hennessey could perform if he stopped the substance use constitutes substantial
evidence supporting the ALJ’s determination that Hennessey was not disabled.
Guilliams v. Barnhart, 393 F.3d 798, 804 (8th Cir.2005).
Based on the foregoing, I conclude that there is substantial evidence on the
record to support the Commissioner’s decision to deny benefits.
IT IS HEREBY ORDERED that the decision of the Commissioner is
A separate judgment in accord with this Memorandum and Order is entered
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 3rd day of March, 2015.
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