Abby v. Colvin

Filing 17

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED. Signed by District Judge Carol E. Jackson on 2/9/15. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CLINT D. ABBY,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Case No. 4:14-CV-498 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court for review of an adverse ruling by the Social
Security Administration.

I.

Procedural History

On July 13, 2011, plaintiff Clint D. Abby filed an application for supplemental
security income, Title XVI, 42 U.S.C. §§ 1381 et seq., with an alleged onset date of
April 30, 2009.1

(Tr. 97-102).

After plaintiff’s application was denied on initial

consideration (Tr. 50-54), he requested a hearing from an Administrative Law
Judge (ALJ). (Tr. 55-57). Plaintiff and counsel appeared for a hearing on March 7,
2013. (Tr. 28-47). The ALJ issued a decision denying plaintiff’s application on May
15, 2013. (Tr. 13-24). The Appeals Council denied plaintiff’s request for review on
January 17, 2014.

(Tr. 1-6).

Accordingly, the ALJ’s decision stands as the

Commissioner’s final decision.

II.

Evidence Before the ALJ

A. Disability Application Documents

1

Plaintiff previously filed for benefits on July 11, 1989. (Tr. 112). This application was denied on initial review and
was not further pursued.

In his Disability Report filed on July 27, 2011 (Tr. 115-21), plaintiff listed his
disabling conditions as a hernia, knee problems, arthritis in his left hand and left
foot, upper and lower back pain, and depression.

He stated that he stopped

working on April 30, 2009 because of his conditions.

He did not take any

prescription medicines. The highest grade of school he completed was 9th grade.
In the past, he had held positions as a bagger in a grocery store, a cook in
restaurants, in packaging and assembly, as a surveyor for marketing company, and
a telemarketer for a cement company. (Tr. 117, 123).
Plaintiff completed a Function Report on August 6, 2011. (Tr. 132-42). In
the report, plaintiff stated that his daily activities consisted of bathing, sleeping,
watching television, complaining, and taking Aleve.

Uncomfortable pain affected

his sleep. He prepared his own meals daily, and dusted, vacuumed, mowed, and
washed dishes once or twice a month. He was able to walk, drive a car, and use
public transportation. He shopped once a month, and was able to manage his bills.
His hobbies included watching television, reading, and playing dominos. He stated
that sitting or standing for short periods caused him back pain.

He was able to

follow instructions and get along with authority figures. He stated that he had used
a cane, back brace, and leg brace in the past.
Plaintiff’s friend, Rose Discher, completed a Third-Party Function Report in
August 2011.

(Tr. 143-52).

Ms. Discher stated that plaintiff’s daily activities

consisted of watching television, talking on the phone, cleaning the house, cutting
the grass, and reading. She reported that plaintiff prepared his own meals daily,
but he did not have a good appetite and sometimes had an upset stomach. She
stated that plaintiff went outside daily by himself. She also stated that plaintiff’s

2

conditions affected his ability to lift, climb stairs, follow instructions, concentrate,
remember, and get along with others. He would get out of breath when climbing
stairs or lifting furniture, he easily forgot things, and he had a short temper. Ms.
Discher also reported that plaintiff had “fears of someone trying to get him in
trouble.” (Tr. 150). She stated that plaintiff needed to use a brace often when his
back, leg, or knee pain flared up.
In his Disability Report filed on January 6, 2012 (Tr. 164-68), plaintiff
reported changes in his conditions beginning on October 30, 2011. He stated he
had tingling in his wrist, pain in his ankles and shoulders, headaches, constant back
pain, and pain in his forearms. He also was bedridden more often than usual. He
did not report any prescription medications, but continued to take Aleve.
B. Testimony at the Hearing
Plaintiff was 44 years old at the time of the hearing. (Tr. 30). He completed
the ninth grade, but did not have a GED.

He attended a trade school for data

entry, but did not complete the program.

(Tr. 30-31).

In 2000, plaintiff was

released from prison after serving a six-year term for first-degree assault and
attempted murder. (Tr. 31). Also in 2000, he began working as a telemarketer at
Advanced Promotions where he remained for two years “off and on.” (Tr. 35).
Plaintiff testified that he had been seeing a chiropractor for the past 20 years
for severe back problems. (Tr. 32). He also testified to having tingling pain in his
left arm and pain in his legs from a fracture caused by bullets in 1986. (Tr. 32-33).
The longest he could physically tolerate a work environment was for an hour and a
half before he would need to sit down and take a break. He testified that he had
been taking Oxycontin and Percocet for his pain as prescribed. (Tr. 40). Plaintiff

3

testified that the pain pills caused side effects, including stomach pain, difficult
bowel movement, and nausea in the mornings. (Tr. 41).
Plaintiff stated he has had mental issues for the past 20 years. He testified
to seeing and hearing things, such as “shadow walkers along the walls” that cause
him to barricade himself in his house and grab weapons. (Tr. 33). He began going
to St. Alexis twice a week for psychological care three weeks before the hearing; he
had not seen a psychologist or psychiatrist on a regular basis before then. (Tr. 3334).
Plaintiff testified that his mental health issues began when he was a child.
(Tr. 36). He stated that he was physically and sexually abused as a child, and ran
away from home at the age of 15. Since 2009, his mental health problems had
become worse.

He stated he became more violent, paranoid, schizophrenic, and

less tolerant. (Tr. 36). Plaintiff testified that he had been diagnosed with bipolar
disorder and PTSD.

(Tr. 37).

These conditions caused him to have problems

dealing with authority and coworkers.

He had emotional outbursts when he was

given feedback from supervisors, and had been fired from jobs.

His mind also

wandered “a million miles an hour,” and he disliked being told what to do. (Tr. 3839, 41).
Plaintiff reported past problems with alcohol and marijuana.

(Tr. 34).

He

smoked marijuana for 35 years, beginning when he was 7 years-old. He stopped
smoking in August 2012. He drank a few beers a week if he could afford it. He
reported drinking a 12-pack of beer every day or two in 2011. (Tr. 35).
Jeff Magrowski, Ph.D., a vocational expert, provided testimony regarding the
employment opportunities for an individual of plaintiff’s age, education, and no past

4

relevant work that qualified as substantial gainful activity.

(Tr. 42).

The ALJ

instructed the vocational expert that this hypothetical claimant had no physical
restrictions; could carry out simple instructions and non-detailed tasks; could
demonstrate adequate judgment to make simple work-related decision; could
respond appropriately to supervisors and coworkers in a task-oriented setting
where contact with others is casual and infrequent; should not work in a setting
which includes constant, regular contact with the general public; and should not
perform

work

which

includes

more

than

infrequent

handling

of

customer

complaints. The ALJ asked if there were examples of work for such an individual.
Dr. Magrowski responded that jobs existed for such a person in both the local and
national economy as a bagger of garments or clothing and as a laundry worker.
(Tr. 43).
Plaintiff’s counsel asked Dr. Magrowski if his opinion would change if the
hypothetical claimant had problems with concentration that would require him or
her to take a 15-minute break every hour and was off-task.

(Tr. 44).

Dr.

Magrowski responded that such a person could not perform those identified jobs.
Plaintiff’s counsel asked the doctor to then assume such a person was incapable of
tolerating minor affronts and had trouble moderating interpersonal behaviors three
times a day to the extent that it would interfere with that person’s ability to
perform his or her job. (Tr. 44). Dr. Magrowski responded that there would be no
work for such a person. Plaintiff’s counsel then asked the vocational expert if there
were any jobs for a person with the hypothetical characteristics described by the
ALJ who also would need special supervision because he or she frequently became

5

overly upset. (Tr. 45). Dr. Magrowski responded that there would be no jobs for
such a person.
C. Medical Records
On November 7, 2009, plaintiff sought treatment at St. Louis University
Hospital for a laceration on the left side of his forehead caused by a blunt object.
(Tr. 245-58).

He had experienced loss of consciousness and vomiting.

stated he had been assaulted six days earlier.

Plaintiff

A CT scan showed a minimally

displaced left lateral orbital wall fracture. There was some tissue swelling and small
metallic foreign bodies were seen in the laceration. His wounds were healing and
there were no signs of infection. He did not want police involvement. He reported
smoking half a pack of cigarettes a day and occasional alcohol use. He was advised
to continue to clean the head wound and was discharged with no follow-up
arranged.

On June 9, 2010, plaintiff sought treatment at St. Louis University

Hospital for a swollen knee.

(Tr. 259-60).

He reported smoking one pack of

cigarettes per day and marijuana. He was advised to take Advil as needed.
Plaintiff returned to St. Louis University Hospital in February 2011, after he
was involved in a motor vehicle crash while intoxicated.

(Tr. 261-93).

uncooperative during intake, nearly hitting the intake physician.
returned positive for cannabis and he smelled of alcohol.

He was

Test results

All CT scans were

negative. Trauma services refused to see him. His symptoms improved following
intravenous fluids, Haldol, Ativan, and diphenhydramine. The next morning plaintiff
had a swollen tongue and difficulty speaking. No acute intervention was deemed
necessary.

Exam results of plaintiff’s spine based on his complaints of neck and

back injury were normal with no evidence of fracture.

6

Dianna

Moses-Nunley,

Ph.D.,

conducted

examination of plaintiff on November 2, 2011.

a

consultative

(Tr. 192-96).

psychological

Dr. Moses-Nunley

diagnosed plaintiff with bipolar disorder, anxiety disorder, and assigned a Global
Assessment of Functioning score of 50.2 She noted that plaintiff was guarded due
to his lack of insight into his problems and distrust of mental health providers.
Plaintiff was appropriately dressed and groomed at the evaluation.

Dr. Moses-

Nunley noted that plaintiff’s social behavior seemed borderline inappropriate and
overly demonstrative when he showed her his missing teeth and the outbreak of a
rash on his torso.

Plaintiff was disorganized in relating information and seemed

inconsistent at times.

He also described frequent feelings of depression and

anxiety. His affect was variable and extreme.
As to plaintiff’s daily activities, Dr. Moses-Nunley found marked impairment
in his social functioning, no impairment to his self-care, adequate performance in
tasks of concentration and pace, and poor persistence as suggested by his selfdescribed behavior. (Tr. 195). She noted that plaintiff described various types of
psychopathology, not all of which were credible. The doctor thought that plaintiff’s
endorsement of visual hallucinations and hearing music in his head were
questionable and could be related to his years of substance abuse.

Dr. Moses-

Nunley opined that plaintiff did not appear able to tolerate minor affronts in daily
life, did not seem to moderate his interpersonal behaviors appropriately, and would
likely need to be placated quite often since he became overly upset.
2

He

The GAF is determined on a scale of 1 to 100 and reflects the clinician’s judgment of an individual’s overall level
of functioning, taking into consideration psychological, social, and occupational functioning. Impairment in
functioning due to physical or environmental limitations is not considered. American Psychiatric Association,
Diagnostic & Statistical Manual of Mental Disorders - Fourth Edition, Text Revision 32-33 (4th ed. 2000). A GAF of
41-50 corresponds with “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,
cannot work).” Id. at 34.

7

demonstrated an adequate ability to understand and remember simple information
and concentrate for a limited time, but his behavior suggested that staying on task
to the degree required in a work setting would be problematic for him. Plaintiff had
the ability to manage his own funds.
Inna Park, M.D., conducted an internal medicine consultative examination of
plaintiff on November 2, 2011.

(Tr. 197-205).

Plaintiff reported that he had an

abdominal hernia, knee pain, arthritis in the left hand and left foot, and back pain.
He reported no use of medications. He said he drank three 24-ounce cans of beer
each day and had last smoked marijuana one week earlier.

Plaintiff reported

surgery to repair a gunshot wound to his left knee in 1988 and repair of a stab
wound to the abdomen in 1986. Dr. Park noted that plaintiff had good hygiene and
normal physical endurance.
abdominal hernia.

Upon examination, the doctor did find any type of

The doctor noted tenderness in the paraspinal muscles of

plaintiff’s back and tenderness to palpation. Plaintiff’s left knee cracked, but there
was no joint inflammation and no pain during range of motion exercises. Plaintiff
was able to get on and off the exam table independently and he could squat to the
floor and recover independently without complaint.
Kyle DeVore, Ph.D., completed a Psychiatric Review Technique on November
9, 2011. (Tr. 206-17). Dr. DeVore concluded that plaintiff suffered from bipolar
disorder-not otherwise specified and anxiety disorder-not otherwise specified.
Plaintiff had mild difficulties in maintaining social functioning but no other functional
limitations.
examination.

(Tr. 214).

Plaintiff was appropriately dressed and groomed for the

Dr. DeVore noted that plaintiff’s social behavior was borderline

inappropriate and overly demonstrative. His affect was variable and extreme as he

8

was joking one moment and visibly upset and angry the next. Dr. DeVore stated
that plaintiff was not fully forthcoming on his symptoms and most of them were
inconsistent or not fully credible. The doctor concluded that plaintiff’s condition was
non-severe. (Tr. 216).
In November 2012 plaintiff sought care at the St. Louis University Hospital
emergency department three times. (Tr. 294-97). At the first visit, on November
1, 2012, plaintiff complained of muscle and joint aching and reported that he’d had
these conditions “for years.” (Tr. 295). He was diagnosed with myalgia, skeletal
pain, and a skin rash. He was prescribed Robaxin, Naprosyn, and Atarax, and was
instructed to follow-up with a primary care provider.

Plaintiff returned to the

emergency department two days later, with complaints of chest pain with an onset
date 32 years prior. (Tr. 298-303). He reported having chest cramps since August,
a nervous stomach, anxiety, cold sweats at night, and morning vomiting. He rated
the pain as 5/10. He asked to be checked for “male menopause.” (Tr. 303). Chest
x-rays, an EKG and lab tests were unremarkable.

He was prescribed aspirin,

ibuprofen, Percocet, and Valium. At his third visit, on November 11, 2012, plaintiff
complained of shoulder pain. (Tr. 304-07). He reported having had left shoulder
pain for 15 years, back pain for 2 years, bilateral knee pain from multiple gun
shots, and abdominal pain for 8 years. He said he had lost 30 pounds in the past 4
years, and had vomited daily for 8 years.

Plaintiff requested refills of Percocet,

Valium, and Carisoprodol. After a physical examination he was discharged with no
prescriptions for medications.

Plaintiff became agitated when he was questioned

about appointments he said he’d scheduled at Grace Hill for social services.
tried to steal two hospital blankets as he left.

9

He

On November 13, 2012, plaintiff went to St. Mary’s Health Center emergency
department, complaining of generalized pain.

(Tr. 218-36).

left shoulder and neck pain for four years.

He was not taking any prescribed

medication.

He reported having

Plaintiff appeared intoxicated and admitted to using crack cocaine.

Following examination, plaintiff was discharged and advised to use over-thecounter pain medications. (Tr. 229).
On January 9, 2013, plaintiff began receiving chiropractic treatment at the
Southside Health Center. (Tr. 237-44). On his patient information intake form, he
reported back, knee, shoulder and neck pain.
fatigue, dizziness, and a headache.

He also reported symptoms of

He was not taking any medication.

Plaintiff

reported having been the front passenger in a car accident at a red light four days
prior. (Tr. 238). He stated that his knee hit the inside of the car, but the airbag
did not deploy. He reported immediately feeling pain, but did not seek treatment at
a hospital. He stated his pain was constant and unbearable. (Tr. 239). He saw a
chiropractor approximately twice a week for the following six weeks.

III. The ALJ’s Decision
In the decision issued on May 15, 2013, the ALJ made the following findings:
1.

Plaintiff has not engaged in substantial gainful activity since July 13,
2011, the application date.

2.

Plaintiff has the following severe impairments:
anxiety disorder.

3.

Plaintiff does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1.

4.

Plaintiff has the residual functional capacity (RFC) to perform a full
range of work at all exertional levels, but with the following
nonexertional limitations: able to understand, remember, and carry
out least simple instructions and non-detailed tasks; demonstrate
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bipolar disorder and

adequate judgment to make simple work-related decisions; respond
appropriately to supervisors and co-workers in a task-oriented setting
where contact with others is casual and infrequent; but, should not
work in a setting which includes constant/regular contact with the
general public; and, should not perform work which includes more
than infrequent handling of customer complaints.
5.

Plaintiff has no past relevant work.

6.

Plaintiff was born on June 26, 1968 and was 42-years old, which is
defined as a younger individual age 18-49, on the date the application
was filed.

7.

Plaintiff has a limited education and is able to communicate in English.

8.

Transferability of job skills is not an issue because the plaintiff does
not have past relevant work.

9.

Considering plaintiff’s age, education, work experience, and RFC, there
are jobs that exist in significant numbers in the national economy that
plaintiff can perform.

10.

Plaintiff’s history of polysubstance abuse is not material to the
decision.

11.

Plaintiff has not been under a disability, as defined in the Social
Security, since July 13, 2011, the date the application was filed.

(Tr. 10-27).

IV.

Legal Standards

The Court must affirm the Commissioner’s decision “if the decision is not
based on legal error and if there is substantial evidence in the record as a whole to
support the conclusion that the claimant was not disabled.” Long v. Chater, 108
F.3d 185, 187 (8th Cir. 1997). “Substantial evidence is less than a preponderance,
but enough so that a reasonable mind might find it adequate to support the
conclusion.” Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002) (quoting Johnson
v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001)). If, after reviewing the record, the
Court finds it possible to draw two inconsistent positions from the evidence and one

11

of those positions represents the Commissioner’s findings, the Court must affirm
the decision of the Commissioner. Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir.
2011) (quotations and citation omitted).
To be entitled to disability benefits, a claimant must prove he is unable to
perform any substantial gainful activity due to a medically determinable physical or
mental impairment that would either result in death or which has lasted or could be
expected to last for at least twelve continuous months. 42 U.S.C. § 423(a)(1)(D),
(d)(1)(A); Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009).

The

Commissioner has established a five-step process for determining whether a person
is disabled. See 20 C.F.R. § 404.1520; Moore v. Astrue, 572 F.3d 520, 523 (8th
Cir. 2009).

“Each step in the disability determination entails a separate analysis

and legal standard.” Lacroix v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006).
Steps one through three require the claimant to prove (1) he is not currently
engaged in substantial gainful activity, (2) he suffers from a severe impairment,
and (3) his disability meets or equals a listed impairment. Pate-Fires, 564 F.3d at
942. If the claimant does not suffer from a listed impairment or its equivalent, the
Commissioner’s analysis proceeds to steps four and five. Id.
“Prior to step four, the ALJ must assess the claimant’s residual functioning
capacity (‘RFC’), which is the most a claimant can do despite her limitations.”
Moore, 572 F.3d at 523 (citing 20 C.F.R. § 404.1545(a)(1)).

“RFC is an

administrative assessment of the extent to which an individual’s medically
determinable impairment(s), including any related symptoms, such as pain, may
cause physical or mental limitations or restrictions that may affect his or her
capacity to do work-related physical and mental activities.” Social Security Ruling

12

(SSR) 96-8p, 1996 WL 374184, *2. “[A] claimant’s RFC [is] based on all relevant
evidence, including the medical records, observations by treating physicians and
others, and an individual’s own description of his limitations.” Moore, 572 F.3d at
523 (quotation and citation omitted).
“The ALJ bears the primary responsibility for determining a claimant’s RFC
and because RFC is a medical question, some medical evidence must support the
determination of the claimant’s RFC.” Id. (citation omitted). “However, the burden
of persuasion to prove disability and demonstrate RFC remains on the claimant.”
Id. Even though the RFC assessment draws from medical sources for support, it is
ultimately an administrative determination reserved to the Commissioner. Cox v.
Astrue, 495 F.3d 614, 619 (8th Cir. 2007) (citing 20 C.F.R. §§ 416.927(e)(2),
416.946 (2006)). “Because the social security disability hearing is non-adversarial,
however, the ALJ’s duty to develop the record exists independent of the claimant’s
burden in this case.” Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
In determining a claimant’s RFC, the ALJ must evaluate the claimant’s
credibility.

Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Pearsall v.

Massanari, 274 F.3d 1211, 1217 (8th Cir. 2002). This evaluation requires that the
ALJ consider “(1) the claimant’s daily activities; (2) the duration, intensity, and
frequency of the pain; (3) the precipitating and aggravating factors; (4) the
dosage,

effectiveness,

and

side

effects

of

medication;

(5)

any

functional

restrictions; (6) the claimant’s work history; and (7) the absence of objective
medical evidence to support the claimant’s complaints.”

Buckner v. Astrue, 646

F.3d 549, 558 (8th Cir. 2011) (quotation and citation omitted). “Although ‘an ALJ
may not discount a claimant’s allegations of disabling pain solely because the

13

objective medical evidence does not fully support them,’ the ALJ may find that
these allegations are not credible ‘if there are inconsistencies in the evidence as a
whole.’” Id. (quoting Goff v. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005)). After
considering the seven factors, the ALJ must make express credibility determinations
and set forth the inconsistencies in the record which caused the ALJ to reject the
claimant’s complaints. Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000); Beckley
v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998).
At step four, the ALJ determines whether claimant can return to his past
relevant work, “review[ing] [the claimant’s] [RFC] and the physical and mental
demands of the work [claimant has] done in the past.” 20 C.F.R. § 404.1520(e).
The burden at step four remains with the claimant to prove his RFC and establish
that he cannot return to his past relevant work. Moore, 572 F.3d at 523; accord
Dukes v. Barnhart, 436 F.3d 923, 928 (8th Cir. 2006); Vandenboom v. Barnhart,
421 F.3d 745, 750 (8th Cir. 2005).
If the ALJ holds at step four of the process that a claimant cannot return to
past relevant work, the burden shifts at step five to the Commissioner to establish
that the claimant maintains the RFC to perform a significant number of jobs within
the national economy.

Banks v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001).

See also 20 C.F.R. § 404.1520(f).
If the claimant is prevented by his impairment from doing any other work,
the ALJ will find the claimant to be disabled.

V.

Discussion

Plaintiff argues that the ALJ erred in his RFC determination by incorrectly
assessing plaintiff’s credibility, failing to address the weight given to the opinion of

14

consultative examiner Dr. Moses-Nunley, and failing to provide a narrative
statement connecting plaintiff’s RFC to his medical records.
A.

Credibility Assessment

Plaintiff argues that the ALJ improperly disregarded his statements about the
severity of his physical impairments. An ALJ may discount a claimant’s subjective
complaints if there are inconsistencies in the evidence as a whole.
Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).

Polaski v.

The lack of supporting objective

medical evidence also is a factor the ALJ may consider. Ford v. Astrue, 518 F.3d
979, 982 (8th Cir. 2008).

If an ALJ discounts a claimant’s subjective reports of

pain, the ALJ is required to “detail the reasons for discrediting the testimony and
set forth the inconsistencies found.” Id. (quoting Lewis v. Barnhart, 353 F.3d 642,
647 (8th Cir. 2003)).
The ALJ first noted that no objective medical records support plaintiff’s
physical complaints. (Tr. 21); see Forte v. Barnhart, 377 F.3d 892, 895 (8th Cir.
2004) (“[L]ack of objective medical evidence is a factor an ALJ may consider.”).
The ALJ stated that the medical evidence supported the finding that plaintiff’s
physical conditions did not pose significant limitations on his physical abilities and
would have no more than a minimal effect on his abilities to perform basic work
activities. (Tr. 21); see Gonzales v. Barnhart, 465 F.3d 890, 895 (8th Cir. 2006)
(“[A]n ALJ is entitled to make a factual determination that a claimant’s subjective
pain complaints are not credible in light of objective medical evidence to the
contrary.”) (internal quotations and citations omitted). No doctor has ever stated
that plaintiff could not work or that he is disabled. (Tr. 22).

15

Second, the ALJ provided detailed reasons for discounting the GAF score Dr.
Moses-Nunley assigned to plaintiff. (Tr. 22). The score was based upon a one-time
examination that was conducted when plaintiff was not receiving treatment in any
form.

The findings supporting the GAF score given were based largely on the

doctor’s interview of plaintiff and his self-reported symptoms. Plaintiff attended the
consultative examination with the understanding that the record of the exam would
be included with his application for Social Security benefits. Furthermore, the ALJ
noted that the purpose of the GAF scale is to plan treatment, measure the impact of
mental illness, predict outcomes, and act as a report of an individual’s overall level
of functioning. The GAF scale “does not have a direct correlation to the severity
requirements in [the SSA’s] mental disorders listings.” (Tr. 22). It also is not an
assessment of an individual’s ability to perform basic work activities.
Barnhart, 312 F. Supp. 2d 1195, 1200 (E.D. Mo. 2004).

Quaite v.

The ALJ provided

sufficiently detailed reasons for discounting the plaintiff’s GAF score.
The ALJ also noted that plaintiff’s failure to obtain any mental health care
treatment until three weeks prior to the hearing undermined his credibility.

(Tr.

21-22). Plaintiff contends that that ALJ should have considered whether plaintiff’s
failure to follow treatment was a result of his mental impairment. See Pate-Fires v.
Astrue, 564 F.3d 935, 945 (8th Cir. 2009) (noting that “federal courts have
recognized a mentally ill person’s noncompliance with psychiatric medications can
be, and usually is, the result of the mental impairment itself and, therefore, neither
willful nor without a justifiable excuse”) (internal quotations and citations omitted).
But see 20 C.F.R. §§ 404.1530(b), 416.930(b) (stating that an unjustified failure to
follow prescribed treatment is grounds for denying disability).

16

Plaintiff has

conflated the failure to follow prescribed treatment with the failure to seek any
treatment at all. Plaintiff did not fail to take medications prescribed to him because
of his mental illness; he failed to seek regular care from a mental health provider at
all prior to his application for benefits. (Tr. 33). The ALJ was permitted to discount
plaintiff’s subjective complaints based on his failure to pursue regular medical
treatment. Edwards v. Barnhart, 314 F.3d 964, 967 (8th Cir. 2003).
Finally, the ALJ considered plaintiff’s work record and daily activities.
18, 21-22).

(Tr.

Plaintiff had a poor work history with low earnings and had never

worked at or above the level of substantial gainful activity. See Pearsall, 274 F.3d
at 1218 (stating that a poor work history may lessen a claimant’s credibility).
While the ALJ did not discuss plaintiff’s daily activities in his credibility assessment,
elsewhere in the opinion the ALJ found plaintiff’s restrictions in daily living activities
to be mild. (Tr. 18). Plaintiff bathed, slept, watched television, complained, took
over-the-counter pain medicine, prepared food, dusted, vacuumed, mowed the
grass, washed dishes, read and played dominos. “Acts which are inconsistent with
a claimant’s assertion of disability reflect negatively upon the claimant’s credibility.”
Johnson , 240 F.3d at 1148; see Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999)
(finding activities such as driving his children to work, driving his wife to school,
shopping, visiting his mother, taking a break with his wife between classes,
watching television, and playing cards were inconsistent with plaintiff’s complaints
of disabling pain).
Thus, the ALJ gave detailed reasons for his credibility determination,
supported by substantial medical and non-medical evidence in the record.
B. Weight Given to Consultative Psychological Examination

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It is undisputed that the ALJ acknowledged Dr. Moses-Nunley’s opinion and
stated that he gave plaintiff the benefit of the doubt based on Dr. Moses-Nunley’s
report. However, plaintiff argues that the ALJ erred by failing to assign weight to
Dr. Moses-Nunley’s opinion.

Furthermore, plaintiff suggests that Dr. Moses-

Nunley’s opinion deserves substantial weight, since it is the only opinion in the
record from an examining physician. Generally, more weight is given to the opinion
of a source who has examined a claimant than a source who has not. 20 C.F.R. §
419.927(c)(1).

An examining physician’s opinion, however, neither inherently or

automatically has controlling weight and “does not obviate the need to evaluate the
record as a whole.” Cline v. Colvin, 771 F.3d 1098, 1103 (8th Cir. 2014) (internal
quotations and citations omitted).
The ALJ discussed at length Dr. Moses-Nunley’s opinions.
plaintiff’s

RFC,

the

ALJ

included

Dr.

Moses-Nunley’s

In determining

findings

in

plaintiff’s

nonexertional limitations. For example, the doctor noted that plaintiff demonstrated
an adequate ability to understand and remember simple

information and

concentrate for a limited time, but his behavior suggested that staying on task in a
work environment would be difficult for him. (Tr. 195). The ALJ incorporated this
opinion into the RFC determination by limiting plaintiff to work requiring only the
ability to understand, remember, and carry out simple instructions and non-detailed
tasks and make simple work-related decisions. (Tr. 19); see Brachtel v. Apfel, 132
F.3d 417, 421 (8th Cir. 1997) (holding that a hypothetical including the “ability to
do only simple routine repetitive work, which does not require close attention to
detail” sufficiently described deficiencies of concentration, persistence or pace). Dr.
Moses-Nunley also noted that plaintiff’s ability to maintain appropriate social

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interactions in employment settings was markedly impaired.

(Tr. 195). The ALJ

adopted this opinion by limiting plaintiff to work that involves only casual and
infrequent contact with supervisors and co-workers and infrequent contact with the
general public and handling of customer complaints. (Tr. 19). Therefore, the ALJ
did give weight to Dr. Moses-Nunley’s opinion in determining plaintiff’s RFC.
The ALJ discounted Dr. Moses-Nunley’s assessment of a GAF score of 50,
because the score was based upon a one-time examination at which plaintiff selfreported his symptoms. (Tr. 22).

The ALJ noted that no accompanying medical

records supported a finding of such severity. “An ALJ is entitled to give less weight
to the opinion of a treating doctor where the doctor’s opinion is based largely on
the plaintiff’s subjective complaints rather than on objective medical evidence.”
Rosa v. Astrue, 708 F. Supp. 2d 941, 950 (E.D. Mo. 2010). To the extent the ALJ
did not give substantial weight to Dr. Moses-Nunley’s opinion, therefore, the lack of
objective medical evidence for the opinion supports the ALJ’s conclusion.
Furthermore, the hypotheticals posed by plaintiff’s counsel to the vocational
expert did not match Dr. Moses-Nunley’s findings and thus do not support plaintiff’s
argument that no work exists for plaintiff. Dr. Moses-Nunley opined that plaintiff
demonstrated an adequate ability to concentrate for a limited time, but staying on
task in a work environment would be difficult. (Tr. 195). Plaintiff’s counsel asked
the vocational expert about the availability of jobs for a person who had problems
with concentration and the ability to stay on-task that would require a 15-minute
break every hour. (Tr. 44). Dr. Moses-Nunley did not opine as to how long plaintiff
could concentrate or how frequently plaintiff would be off-task.

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Additionally, Dr. Moses-Nunley stated that plaintiff did not appear able to
tolerate minor affronts in daily life, did not seem to moderate his interpersonal
behaviors, and would likely need frequent placating as he often becomes overly
upset.

(Tr. 195).

Plaintiff’s counsel posed questions to the vocational expert

regarding hypothetical claimants who would be incapable of tolerating minor
affronts three times a day to the extent it would interfere with ability to perform
work and who would need special supervision. (Tr. 44). Because the limitations of
these hypothetical claimants did not mirror plaintiff’s conditions as reported by Dr.
Moses-Nunley, the ALJ did not err in considering this evidence in his RFC
determination.
C. Narrative Record
Plaintiff next argues that the ALJ erred in failing to link the medical records to
the RFC. A claimant has the burden to prove his RFC by providing medical evidence
as to the existence and severity of an impairment. Baldwin v. Barnhart, 349 F.3d
549, 556 (8th Cir. 2003); Snead v. Barnhart, 360 F.3d 834, 836 (8th Cir. 2004).
“The ALJ must determine the claimant’s RFC based on all relevant evidence,
including medical records, observations of treating physicians and others, and
claimant’s own descriptions of his limitations.” Id. Because a claimant’s RFC is a
medical question, some medical evidence from a professional must support an ALJ’s
RFC determination. Id.
As noted by plaintiff, “the medical records are sparse regarding [his] mental
impairments.” Pl.’s Social Security Br., at *11 [Doc. #11]. “[A]n ALJ is permitted
to issue a decision without obtaining additional medical evidence so long as other
evidence in the record provides a sufficient basis for the ALJ’s decision.” Naber v.

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Shalala, 22 F.3d 186, 189 (8th Cir. 1994). The ALJ’s duty to further develop the
record only arises if a crucial issue is undeveloped. Ellis v. Barnhart, 392 F.3d 988,
994 (8th Cir. 2004).

Beyond the medical records provided by plaintiff, the SSA

ordered a consultative psychological examination by Dr. Moses-Nunley and a
psychiatric review from Dr. DeVore. Plaintiff does not cite to any additional medical
evidence that should have been obtained. The 7-page narrative discussion in the
administrative decision shows that the ALJ reviewed the relevant evidence in the
totality and based the RFC determination upon medical and non-medical evidence
in the record as a whole. Thus, the ALJ did not fail to develop the narrative record.

VI.

Conclusion

For the reasons discussed above, the Court finds that the Commissioner’s
decision is supported by substantial evidence in the record as a whole.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
affirmed.
A separate Judgment in accordance with this Memorandum and Order will be
entered this same date.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 9th day of February, 2015.

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