Buckner v. Colvin
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the relief requested in Plaintiffs Complaint and Brief in Support of Complaint is DENIED. [Docs. 1 , 20 .] IT IS FURTHER ORDERED that the Court will enter a judgment in favor of the Commissioner affirming the decision of the administrative law judge. Signed by Magistrate Judge Nannette A. Baker on 2/13/15. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CHRISTOPHER L. BUCKNER,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Case No. 4:13-CV-2439-NAB
MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) for judicial review of Commissioner’s
final decision denying Christopher L. Buckner’s (“Buckner”) application for Supplemental
Security Income (“SSI”) under Title XVI of the Social Security Act. Buckner alleges disability
due to learning disability and asthma. (Tr. 268.) The parties consented to the jurisdiction of the
undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1). [Doc. 9.] Based
on the following, the Court will affirm the Commissioner’s decision.
Buckner received SSI benefits as a child, beginning on May 21, 1996. (Tr. 54.) In
accordance with social security regulations, Buckner’s eligibility was re-determined under the
social security rules for new adult claimants. 20 C.F.R. § 416.987. On July 30, 2010, the Social
Security Administration (“SSA”) determined Buckner was no longer disabled as of that date and
ceased his SSI benefits. (Tr. 60-64.) Buckner filed an appeal before a hearing officer and a
hearing was held on October 26, 2010. (Tr. 78.) Bucker’s appeal was denied. (Tr. 78-89.) The
SSA granted Buckner’s timely request for a hearing before an administrative law judge.
(“ALJ”). (Tr. 90-96.) An administrative hearing was held on May 22, 2012. (Tr. 33-53.)
Buckner and Vocational Expert (“VE”) Dale Thomas testified at the hearing. Id. The ALJ
issued a written decision affirming the denial of benefits on July 26, 2012. (Tr. 11-26.) Buckner
requested a review of the ALJ’s decision from the Appeals Council. (Tr. 5.) On October 10,
2013, the Appeals Council denied Buckner’s request for review. (Tr. 1-3.) The decision of the
ALJ thus stands as the final decision of the Commissioner. See Sims v. Apfel, 530 U.S. 103,
Buckner filed this appeal on December 4, 2013. [Doc. 1.] The Commissioner filed an
Answer and Administrative Transcript on February 13, 2014. [Docs. 14, 15.] Buckner filed a
Brief in Support of his Complaint on April 21, 2014. [Doc. 20.] The Commissioner filed a Brief
in Support of the Answer on July 11, 2014. [Doc. 25.]
Standard of Review
The Social Security Act defines disability as an “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 has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. §§ 416(i)(1)(A).
The SSA uses a five-step evaluation process to determine whether a person is disabled.
20 C.F.R. § 416.920(a)(1). “If a claimant fails to meet the criteria at any step in the evaluation of
disability, the process ends and the claimant is determined to be not disabled.” Eichelberger v.
Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004). First, the claimant must not be engaged in
substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(i). Second, the claimant must establish
that he or she has an impairment or combination of impairments that significantly limits his or
her ability to perform basic work activities and meets the durational requirement of a continuous
period of disability for 12 months. 20 C.F.R. § 416.920(a)(ii). Third, the SSA determines
whether the claimant’s impairment meets or equals an impairment listed in the appendix to the
applicable regulations. 20 C.F.R. § 416.920(a)(iii). Fourth, the claimant must establish that the
impairment prevents him or her from doing past relevant work. 20 C.F.R. § 416.920(a)(4)(iv).
At step five, the burden shifts to the Commissioner to establish that the claimant maintains the
residual functional capacity to perform a significant number of jobs in the national economy.
Singh v. Apfel, F.3d 448, 451 (8th Cir. 2000). If the claimant satisfies all of the criteria under
the five-step evaluation, the ALJ will find the claimant to be disabled.
This court reviews decisions of the ALJ to determine whether the decision is supported
by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). Substantial evidence is
less than a preponderance, but enough that a reasonable mind would find adequate support for
the ALJ’s decision. Smith v. Shalala, 31 F.3d 715, 717 (8th Cir. 1994). Therefore, even if this
Court finds that there is a preponderance of evidence against the weight of the ALJ’s decision,
this Court will affirm the decision if it is supported by substantial evidence. Clark v. Heckler,
733 F.2d 65, 68 (8th Cir. 1984). An administrative decision is not subject to reversal simply
because some evidence may support the opposite conclusion. Gwathney v. Chater, 1043, 1045
(8th Cir. 1997).
To determine whether the ALJ’s final deccision is supported by substantial evidence, the
Court is required to review the administrative record as a whole to consider:
(1) The findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the
(3) The medical evidence given by the claimant’s treating
(4) The subjective complaints of pain and description of the
claimant’s physical activity and impairment;
(5) The corroboration by third parties of the claimant’s
(6) The testimony of vocational experts based upon prior
hypothetical questions which fairly set forth the claimant’s
physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dept. of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).
The ALJ determined that Buckner met the insured status requirements of the Social
Security Act through the month preceding the month in which he attained age 18. (Tr. 13.) The
ALJ found that Buckner has the following severe impairments: psychotic disorder not otherwise
specified, alternately diagnosed as schizophrenia, attention-deficit/hyperactivity disorder
(“ADHD”), and a learning disorder. (Tr. 13.) The ALJ found that Buckner does not have an
impairment or combination of impairments that meets or medically equals the severity of any of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 16.) The ALJ
determined that Buckner has the residual functional capacity (“RFC”) to perform a full range of
work at all exertional levels, with the following nonexertional limitations: that he can
understand, remember, and carry out simple instructions in a low-stress environment; and can
occasionally interact with supervisors, coworkers, and the general public. (Tr. 18.) The ALJ
found that Buckner has no past relevant work and there are a significant number of jobs in the
national economy that Buckner could perform. (Tr. 24-25.) Finally, the ALJ concluded that
Buckner’s disability ended on July 30, 2010, and Buckner has not become disabled again since
that date. (Tr. 25.)
The following is a summary of relevant evidence before the ALJ:
The ALJ heard testimony from Buckner and Dale Thomas, the vocational expert (“VE”).
Buckner was represented by counsel. (Tr. 33-53.)
Buckner testified that he was 20 years old at the time of the hearing. (Tr. 36-37.)
Buckner completed high school and had been enrolled in special education and regular classes
during school. (Tr. 38.) He received mostly C’s in school. (Tr. 39.) Buckner stated that he had
only attempted to work once at KFC. (Tr. 39.) His job at KFC did not last past the initial
orientation period because he “didn’t know what was going on” and his supervisor said that
Buckner did not have the skills to work at KFC. Id.
Buckner testified that he attended Meramec Community College 1 for a period of time,
but he was suspended due to his involvement in a physical altercation that resulted from
bullying. (Tr. 40.) Subsequently, the school overturned the suspension on the condition Bucker
attend anger management classes. (Tr. 40.) Bucker decided not to return to Meramec and had
applied to another college. (Tr. 40.) During his time at Meramec, Buckner enrolled in the same
math course and communications course twice to pass and improve his grade. (Tr. 44.) He
received an average grade in American politics and he “did okay” in art, writing, and reading
classes. Id. At Meramec, Buckner received special accommodations, including extra time to
take tests, use of note takers, and video recordings of the lectures. (Tr. 47.)
Meramec is misspelled in the transcript as “Merricmack.” (Tr. 40, 45.)
Buckner testified that he has a tic disorder and voices that run through his head. (Tr. 39.)
He takes Trazadone to sleep at night. (Tr. 39.) He sees a doctor and a counselor for his
problems. (Tr. 41.) Buckner stated that he takes Risperdal for the voices and tics. (Tr. 42.)
Buckner testified he had been hospitalized once before for asthma, but he was unsure about the
date of the hospitalization. Id. Buckner stated that he suffers from different thoughts in his head
that cause him to lose focus and interest quickly. Id. The voices distract him about fifty percent
of the time. (Tr. 48.)
Buckner lives with his mother and his 18 year old sister. (Tr. 43.) When attending
classes, Buckner took the bus to and from school on some occasions but he preferred to have his
sister drive him so that he would not have to sit on the bus with all of the other people. (Tr. 4445.) He has a license, but he does not drive. (Tr. 45.) Buckner testified that he had friends at
Meramec and that he still sees them. Id. Buckner also testified that he keeps in touch with some
friends from his neighborhood and high school. (Tr. 46.) He likes to spend time at the mall with
them, but he cannot focus on movies long enough to enjoy watching them. Id. He also plays
video games and plays basketball. (Tr. 47.) Buckner stated that he helps his mother clean and
sometimes he cooks for himself. (Tr. 46.) His mother arranges transportation for him when he
has a doctor’s appointment. Id. He knows how to use a computer. (Tr. 47.)
VE Dale Thomas
VE Dale Thomas testified that individuals with learning disabilities, an average IQ, and
attention deficit disorder may not be able to carry out even simple instructions necessary to
perform unskilled work and may not be able to relate well to co-workers as a result. (Tr. 49.)
He also stated that attention deficit disorder may prevent a person from being able to concentrate
and focus for at least two hours, which would be the time needed to do unskilled work. (Tr. 49-
50.) He testified that if Buckner had no exertional limitations, but with the learning disability
and the attention deficit problems, could follow simple instructions in a low stress environment
without a lot of social interaction, limited social interaction, more so with coworkers than
supervisors and there was not a lot of public contact, there would be work that he could do. (Tr.
50). The VE identified several unskilled, light exertional jobs that Bucker could perform with
the aforementioned limitations: (1) bench assembler, (2) maid and housecleaner, such as laundry
worker, and (3) packer and hand packager. (Tr. 51.) He testified that if Bucker had problems
doing the aforementioned jobs, without some support in terms of close supervision, all jobs at the
unskilled level would be precluded. (Tr. 52.)
Buckner originally applied for SSI on May 21, 1996, and his application to the program
was granted, because he met the severity of Section 112.05 C of the Listing of Impairments, Part
B of Appendix 1, Subpart P, Regulations No. 4, for mental retardation with a full scale IQ of 59.
(Tr. 457-460.) On September 26, 2005, his disability status was continued. Id.
In the spring of 2005, Buckner’s school conducted an Individualized Education Plan 2
(I.E.P.)/Re-evaluation meeting regarding his educational needs. (Tr. 374-381.) At that time,
Buckner was given the Stanford Binet V Abbreviated Battery test 3. (Tr. 378.) His test results
showed cognitive ability within the upper limits of borderline range of performance. Id. In the
verbal domain, he demonstrated low average ability to define words. Id. Assessment of his
“An IEP consists of a detailed written statement arrived at by a multi-disciplinary team specifying the services,
including specially designed instruction, that a child will receive.” Aumann v. Wentzville R-IV School Dist., No.
4:13-CV-867 CEJ, 2014 WL 1648742 at *2 (E.D. Mo. Apr. 23, 2014)
The Stanford Binet V test is a “test used to measure intelligence, mostly in children. The tests use verbal and
performance activities of graded difficulty.” 5 J.E. SCHMIDT, M.D., ATTORNEY’S DICTIONARY OF MEDICINE
ILLUSTRATED PR-TG (2014).
academic skills indicated overall performance within the low average range of function for his
Results of the language evaluation indicated functioning with the
borderline to low average range. (Tr. 379.) He qualified for special education services due to
chronic elevated lead levels. (Tr. 379.) It was determined that he would continue to benefit from
presentation of directions in a combined oral/visual manner, extended time limits to complete
oral and written tasks, and use of repetition and rephrasing. (Tr. 379.)
Buckner’s IEP/Re-evaluation was completed on February 8, 2010 during Buckner’s
senior year in high school. (Tr. 369-373.) Buckner’s disability affected his participation in the
general education setting in the following ways: completing assignments and tests in a timely
manner and comprehending directions presented both written and auditorally, writing
assignments and generalizing learned information.
It was determined that his
disability will affect his ability to reach his post-secondary goal of attending a 2 year community
or tech school in the following ways: being able to complete college applications independently,
maintaining appropriate grade point average for the program as the courses become more
challenging, and staying organized for classes in order to complete assignments in a timely
manner. (Tr. 370.) His disability would affect his post-secondary goal of living in an apartment
or independently in the following ways: budgeting money and organizing needs for everyday
life. (Tr. 370.) He demonstrated poor auditory discrimination, poor auditory memory for
material read or heard, and very poor comprehension. (Tr. 371.) He did not demonstrate
understanding for higher level thinking and reading skills. (Tr. 371.) He had great difficulty
with reading comprehension due to weak memory and writing skills. (Tr. 371.) His thinking
skills were also weak as a result of poor memory and generalization skills. (Tr. 371.) His
cognitive ability is within the low average range. (Tr. 371.)
On April 2, 2010, two of Buckner’s teachers completed questionnaires regarding him.
(Tr. 294-301, 319-326.) Veterinary Assistant Instructor Donna Hobles-Powell indicated in her
questionnaire that Bucker had problems acquiring and using information and attending and
Specifically, she noted he had serious problems
comprehending and doing math problems and expressing ideas in written form. (Tr. 295.)
Hobles-Powell wrote, “Christopher really struggles with math and reading comprehension. He
doesn’t always understand the meaning of what he is reading.” (Tr. 300.) Academic Lab (Study
Hall) Teacher Jennifer Boston-Manning indicated that Bucker had difficulties acquiring and
using information, including obvious problems of reading and comprehending written material
and expressing ideas in a written form. (Tr. 320.) She also noted that he had problems attending
and completing tasks, including organizing his own things or school materials. (Tr. 321.)
In a letter dated October 31, 2011, the Manager of Records at St. Louis Community
College stated that Bucker had been enrolled at its Meramec campus since Fall 2010. (Tr. 420.)
He was currently in good academic standing and his major was general transfer studies, an
associate’s degree for students who intend to transfer to a 4 year college or university. (Tr. 420.)
A transcript from St. Louis Community College dated October 31, 2011 showed that he had a
cumulative grade point average of 2.6. (Tr. 421.) The college also indicated that Buckner’s
academic accommodations included (1) testing out of class, (2) testing with extended time,
(3) volunteer note taker, (4) preferential seating, and (5) ability to tape lectures as a form of note
taking. (Tr. 423.)
A medical/psychiatric assessment was completed on March 18, 2009. (Tr. 507-510.) In
the assessment, Dr. Cynthia Rodgers, a psychiatrist, determined that Bucker had Tourette’s
syndrome, ADHD, and obsessive compulsive disorder. (Tr. 510.) She opined that his global
assessment functioning 4 (“GAF”) score was 65. (Tr. 510.) A GAF score of 65 indicates mild
symptoms or some difficulty in social, occupational, or school functioning. DSM-IV-TR at 34.
She prescribed Tenex to address his tics, impulsivity, and hyperactivity. (Tr. 509.)
On February 8, 2010, Buckner received Risperdal to address his tics. (Tr. 505-506.) On
March 2, 2010, Buckner reported a good response to Risperdal and that he had less frequent and
less urgent tics. (Tr. 503.) The medical doctor noted that Bucker reported that his school
performance was good and no behavioral problems were noted by Bucker or his mother. (Tr.
Bucker began psychiatric care at Hopewell Center in October 2010. Dr. Erickson Smith,
a psychologist and licensed clinical social worker completed an intake assessment of Buckner on
October 18, 2010. (Tr. 610-614.) Buckner reported hearing voices. (Tr. 613.) Dr. Smith
observed that Buckner was oriented to person, time, and place. (Tr. 614.) He noted that
Buckner’s affect was appropriate and his mood was stable. (Tr. 614.) He opined that Bucker’s
GAF score was 45. (Tr. 614.) A GAF score of 45 indicates serious symptoms or any serious
Global Assessment Functioning score is a “clinician’s judgment of the individual’s overall level of functioning.”
Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. Text Rev. 2000) (“DSM-IV-TR”).
impairment in social, occupational, or school functioning. DSM-IV-TR at 34. He diagnosed
Buckner with chronic motor tics, ADHD, and schizophrenia undifferentiated type. (Tr. 614.)
Dr. Roy Wilson, a psychiatrist, performed a psychiatric evaluation of Buckner on
November 2, 2010. (Tr. 615-620.) Buckner reported that classes were stressing him out, he was
doing poorly, he was easily distracted, and zoned out in classes. (Tr. 615.) Dr. Wilson observed
no appearance of hyperactivity, except fidgeting, and rocking in a chair. (Tr. 616.) Buckner
reported several hyperactive behaviors. (Tr. 616.) Buckner also reported episodes of shortness
of breath lasting no longer than two minutes. (Tr. 616.) Dr. Wilson observed a few tics and mild
fidgetiness, an appropriate affect, euthymic mood, and excessive speech. (Tr. 618-619.) He
estimated that Bucker was of average intelligence. (Tr. 619.) He assessed Buckner’s GAF at 60,
indicating moderate symptoms or moderate impairment in social, occupational, or school
functioning. (Tr. 620.) Buckner continued to receive treatment from Dr. Smith and Dr. Wilson
through February 2012. (Tr. 594-609, 684-686.) During this time period his mental status
examinations were substantially normal.
(Tr. 594-609, 684-686.)
Buckner reported some
auditory hallucinations in 2010, between January 2011 and June 2011 and again in December
2011. (Tr. 600, 603-606, 608-609, 686.)
On March 22, 2011, Dr. Smith and Dr. Wilson completed a Mental Residual Functional
Capacity Questionnaire regarding Buckner. (Tr. 583-587.) The doctors diagnosed Buckner with
Tourette Syndrome and psychotic disorder not otherwise specified, and learning disorder. (Tr.
583.) They noted that Buckner reported hearing voices and having uncontrolled movement in
They indicated in a checklist that Buckner exhibiting the following
impairment in impulse control, mood disturbance, difficulty thinking or
concentrating, psychomotor agitation or retardation, paranoid thinking or inappropriate
suspiciousness, recurrent obsessions or compulsions which are a source of marked distress,
bipolar syndrome with a history of episodic periods manifested by the full symptomatic picture
of both manic and depressive syndromes, intense and unstable personal relationships and
impulsive and damaging behavior, emotional stability, manic syndrome, decreased need for
sleep, and recurrent severe panic attacks manifested by a sudden unpredictable onset of intense
apprehension. (Tr. 584.)
The doctors opined that Buckner was unable to meet competitive standards for
semiskilled and skilled work. (Tr. 586.) They also stated that Buckner was unable to meet
competitive standards regarding interacting appropriately with the general public, maintain
socially appropriate behavior, adhere to basic standards of neatness and cleanliness, and travel in
unfamiliar places. (Tr. 586.) They found that he was seriously limited but not precluded from
understanding and remembering very short and simple instructions, make simple work-related
decisions, ask simple questions or ask assistance, and use public transportation. (Tr. 585-586.)
They further opined that he was unable to meet competitive standards to remember work-like
procedures, carry out very short and simple instructions, maintain attention for two hour
segments, sustain an ordinary routine without special supervision, completed a normal work day
and work week without interruptions from psychologically based symptoms, perform at a
consistent pace without an unreasonable number and length of rest periods, accept instructions
and respond appropriately to criticism from supervisors, and be aware of normal hazards and
take appropriate precautions. (Tr. 585.) Finally, they opined that he had no useful ability to
function regarding maintaining regular attendance and being punctual within customary usually
strict tolerances, getting along with co-workers or peers without unduly distracting them or
exhibiting behavioral extremes, responding appropriately to changes in a routine work setting,
and dealing with normal work stress. (Tr. 585.)
Consultative Examiner Lloyd Irwin Moore, Ph.D.
On July 16, 2010, Dr. Lloyd Irwin Moore attempted to perform a WAIS-IV 5 test for
psychometric evaluation. (Tr. 537-540.) Dr. Moore wrote that Buckner was very uncooperative
during the examination. (Tr. 537.) Dr. Moore wrote that Buckner exhibited a very sarcastic tone
and stated that the activities were for kindergartners and stupid. (Tr. 537.) Dr. Moore eventually
ended the testing due to Buckner’s behavior. (Tr. 538.) No mental status examination was
completed, but Dr. Moore observed that Buckner was alert, oriented, and very argumentative.
(Tr. 538.) Dr. Moore opined that based on his observations of Bucker and his medical history,
Buckner’s diagnosis included Tourette disorder, ADHD, obsessive compulsive disorder, and
oppositional defiant behavior. (Tr. 539.) He opined, based on observation alone, that Buckner
had moderate impairment in activities of daily living, social functioning, and concentration,
persistence, and pace. (Tr. 539.) He assessed Buckner’s current GAF score as 60.
Consultative Examiner Martin Isenberg, Ph.D.
Dr. Isenberg reviewed Buckner’s medical records and completed a Psychiatric Review
Technique and Mental Residual Functional Capacity Assessment on September 17, 2010. (Tr.
567-581.) Dr. Isenberg diagnosed Buckner with a history of ADHD, learning disorder, and tic
disorder. (Tr. 568.) He opined that Buckner had mild limitations in activities of daily living and
moderate difficulties in maintaining social functioning and concentration, persistence, and pace.
(Tr. 575.) Specifically, he found Buckner moderately limited in the ability to understand,
The WAIS “is an intelligence scale based on verbal and performance material which takes into consideration the
age of the subject. The tests are administered individually and consist of eleven subtests applicable to adults and
adolescents.” Attorney’s Dictionary of Medicine and Word Finder, W-16, Volume 6, J.E. Schmidt, M.D. (2014).
remember, and carry out detailed instructions; interact appropriately with the general public, and
accept instructions and respond appropriately to criticism from supervisors. (Tr. 579-580.)
Buckner alleges two errors on review. First, Buckner asserts that the ALJ failed to rely
on “some” medical evidence in the RFC determination.
Second, Buckner asserts that the
question given to the VE did not capture the concrete consequences of Buckner’s impairment
and therefore the response of the VE did not represent substantial evidence upon which the ALJ
Residual Functional Capacity
The RFC is defined as what the claimant can do despite his or her limitations, and
includes an assessment of physical abilities and mental impairments. 20 C.F.R. § 416.945(a).
The RFC is a function-by-function assessment of an individual’s ability to do work related
activities on a regular and continuing basis. 6 SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996).
It is the ALJ’s responsibility to determine the claimant’s RFC based on all relevant evidence,
including medical records, observations of treating physicians and the claimant’s own
descriptions of his limitations. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001).
RFC is a medical question. Eichelberger, 390 F.3d at 591. An RFC determination made by an
ALJ will be upheld if it is supported by substantial evidence in the record. See Cox v. Barnhart,
471 F.3d 902, 907 (8th Cir. 2006). In making a disability determination, the ALJ shall “always
consider the medical opinions in the case record together with the rest of the relevant evidence in
the record.” 20 C.F.R. § 416.927(b); see also Heino v. Astrue, 578 F.3d 873, 879 (8th Cir.
A “regular and continuing basis” means 8 hours a day, for 5 days a week, or an equivalent work schedule. SSR 968p, 1996 WL 374184, at *1.
2009). “A disability claimant has the burden to establish her RFC.” Eichelberger, 390 F.3d at
591 (citing Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir. 2004)).
First, Buckner contends that the ALJ fails to cite to any medical evidence to support his
conclusions regarding Buckner’s RFC.
Plaintiff contends that the ALJ cannot rely on the
opinion of Dr. Eisenberg to support the RFC determination, because he was only a one-time
consulting physician. The ALJ gave significant weight to Dr. Eisenberg’s opinion. (Tr. 19.)
The ALJ found that Dr. Eisenberg’s opinion was consistent with the objective medical evidence
regarding Buckner’s impairments. (Tr. 19.)
The Court finds that Buckner’s argument lacks merit, because the ALJ’s RFC
determination is supported by some medical evidence on the record as a whole. The Court
agrees that “the results of a one-time medical evaluation do not constitute substantial evidence on
which the ALJ can permissibly base his decision.” Cox v.Barnhart, 345 F.3d 606, 610 (8th Cir.
2003). As an initial matter, however, the ALJ did not solely rely upon the opinion of Dr.
Eisenberg to support the RFC determination. As stated by the ALJ, Dr. Eisenberg’s opinion is
supported by other evidence in the administrative record. The treatment notes of Dr. Wilson and
Dr. Smith support the limitations contained in the RFC determination and are consistent with Dr.
Eisenberg’s opinion. Buckner’s educational records from high school and community college
are also consistent with the limitations contained in the RFC determination. Although Buckner
has required accommodations in the educational setting, he has maintained a good grade point
average and is in good academic standing. The record shows that his medication adjustments
have helped reduce his tics and auditory hallucinations. This is not a case where the consultative
examiner’s opinion is the only thing in the record supporting the RFC determination made by the
ALJ. See Parker v. Colvin, No. 4:13-CV-1926 TIA, 2015 WL 417585 (E.D. Mo. Feb. 2, 2015).
The larger medical record supports Dr. Eisenberg’s opinion and the ALJ could give it significant
weight in evaluating Buckner’s RFC.
Second, Buckner contends that the ALJ should have given significant consideration to the
opinion of his treating physicians, Dr. Smith and Dr. Wilson. The ALJ gave little weight to the
doctors’ Mental RFC Assessment regarding Buckner. (Tr. 20.) The ALJ stated that the extreme
limitations contained in the doctors’ opinions were unsupported by their treatment notes. (Tr.
20.) Generally, a treating physician’s opinion is given controlling weight, but is not inherently
entitled to it. Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006). A treating physician’s
opinion “does not automatically control or obviate the need to evaluate the record as a whole.”
Leckenby v. Astrue, 487 F.3d 626, 632 (8th Cir. 2007). A treating physician’s opinion will be
given controlling weight if the opinion is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the
case record. 20 C.F.R. § 416.927(c)(2); SSR 96-2p; see also Hacker, 459 F.3d at 937. “Whether
the ALJ grants a treating physician’s opinion substantial or little weight, the regulations provide
that the ALJ must ‘always give good reasons’ for the particular weight given to a treating
physician’s evaluation.” Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000). “It is the ALJ's
function to resolve conflicts among the opinions of various treating and examining physicians.”
Wagner v. Astrue, 499 F.3d 842, 848 (8th Cir. 2007). “The ALJ may reject the conclusions of
any medical expert, whether hired by the claimant or the government, if [the conclusions] are
inconsistent with the record as a whole.” Id.
After review of entire administrative record, the Court finds that the ALJ did not err in
giving little weight to the doctors’ Mental RFC Assessment. The doctors’ opinion was directly
contradicted by their treatment notes in several areas. For example, the doctors stated that he
was seriously limited in, but not precluded from using public transportation. (Tr. 586.) Buckner
testified that he took the bus to school unless his sister drove him or his mom arranged
The doctors opined that Buckner would be unable to meet
competitive standards in adhering to basic standards of neatness and cleanliness. (Tr. 586.) Their
treatment notes indicate that Bucker’s grooming was good, fair, age-appropriate, or he was wellgroomed. (Tr. 594-596, 598, 600-602, 604-606, 684, 686.) The opinion also indicated that he
had bi-polar symptoms with manic and depressive syndromes. (Tr. 584.) There is no evidence
of any bi-polar symptoms in the medical records, including their own treatment notes. (Tr. 584.)
The opinion also indicated that he had recurrent severe panic attacks, which is also not supported
by the record. Buckner’s treatment notes with the doctors indicated that he was frequently
stressed about his classes, but he was ultimately successful overall. The doctors’ opinion was
contradicted by their own treatment notes and other evidence in the record. Buckner’s activities
of daily living also contradicted the substantial and severe limitations contained in the doctors’
opinion. Therefore, the ALJ did not err in giving little weight to their opinion expressed in the
Mental RFC Assessment.
Third, Buckner contends that there is no substantial evidence that his IQ score has
improved and there is evidence to demonstrate it remains at 59 7. Therefore, the effects of mild
mental retardation or borderline IQ should have been considered in forming the RFC. The Court
finds that Buckner’s argument lacks merit. First, social security regulations require that IQ test
results be sufficiently current. See 20 C.F.R. Pt. 404, Subpt., App. 1§ 112.00(D)(10). IQ test
results obtained between the ages of 7 and 16 should be considered current for 4 years when the
tested IQ is less than 40 and for 2 years when the IQ is 40 or above. Id. IQ test results obtained
An IQ score of 59 would render a claimant disabled under social security regulations. 20 C.F.R. Pt. 404, Subpt. P,
App. 1 § 12.05B (a claimant is disabled when he has a valid verbal, performance, or full scale IQ of 59 or less).
before age 7 are current for 2 years if the tested IQ is less than 40 and 1 year if at 40 or above.
Id. In this case, Buckner’s IQ test results were obtained at age 4 (Tr. 458.) and age 13 (Tr. 376.)
Therefore, these tests are well beyond the date to be considered an accurate assessment of
Buckner’s current IQ level. Second, Buckner refused to complete an IQ assessment during the
evaluation by Dr. Moore. (Tr. 537-540.) Dr. Moore estimated based on the partial testing that
Buckner was within the mild mental retardation range of intellectual classification, but noted that
the records provided to him were incongruent with that assessment. (Tr. 539.) Dr. Moore also
opined that Buckner should have produced higher scores on the completed portions given the
records available and the scores were probably somewhat lower than his ability, but not
Third, Buckner’s successful matriculation into community
college obtaining a 2.6 grade point average and his activities of daily living do not support his
claims that his mental limitations exceed those contained in the RFC assessment. An ALJ may
disregard test scores that are inconsistent with an applicant’s demonstrated activities and abilities
as reflected in the records as a whole. Channell v. Colvin, 756 F.3d 606, 608 (8th Cir. 2014)
(claimant’s daily activities did not indicate she was completely unable to work, she had no
exertional limitations, and could perform unskilled work); Johnson v. Astrue, 627 F.3d 316, 320
(8th Cir. 2010) (IQ score of 69 at age 16 was contradicted by claimant graduating in top half of
class, taking regular classes, and receiving A’s and B’s); Clay v. Barnhart, 417 F.3d 922, 929
(8th Cir. 2005) (claimant’s demonstrated abilities were inconsistent with those expected from a
person with an IQ below seventy). The ALJ took into account the mental impairments contained
in the record that were supported by substantial evidence, therefore, the ALJ did not err in
assessing Buckner’s RFC.
Vocational Expert Testimony
“Testimony from a vocational expert constitutes substantial evidence only when based on
a properly phrased hypothetical question.” Pickney v. Chater, 96 F.3d 294, 296 (8th Cir. 1996).
“[T]he ALJ’s hypothetical question must include the impairments that the ALJ finds are
substantially supported by the record as a whole.” Id. “However, the hypothetical need only
include those impairments which the ALJ accepts as true.” Grissom v. Barnhart, 416 F.3d 834,
836 (8th Cir. 2005). A “hypothetical question posed to a vocational expert must capture the
concrete consequences of claimant’s deficiencies.” Pickney, 96 F.3d at 297. The Court has
already determined that the RFC determination was supported by substantial evidence. Because
the ALJ needed only to include those limitations that were supported by substantial evidence in
the hypothetical, the VE’s testimony’s constituted substantial evidence.
For reasons set forth above, the Court affirms the Commissioner’s final decision.
IT IS HEREBY ORDERED that the relief requested in Plaintiff’s Complaint and Brief
in Support of Complaint is DENIED. [Docs. 1, 20.]
IT IS FURTHER ORDERED that the Court will enter a judgment in favor of the
Commissioner affirming the decision of the administrative law judge.
Dated this 13th day of February, 2015.
/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
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