Karahasanovic v. Colvin
MEMORANDUM OPINION re: 9 SOCIAL SECURITY BRIEF filed by Plaintiff Hasnija Karahasanovic ; For the reasons set forth above, the decision of the Commissioner of Social Security is affirmed. An appropriate Judgment Order is issued herewith.. Signed by Magistrate Judge David D. Noce on 8/21/15. (KKS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
No. 4:14 CV 710 DDN
This action is before the court for judicial review of the final decision of the
defendant Commissioner of Social Security denying the applications of plaintiff Husnija
Karahasanovic for disability insurance benefits and supplemental security income benefits
under Titles II and XVI of the Social Security Act (the Act), 42 U.S.C. §§ 401, 1381. The
parties have consented to the exercise of plenary authority by the undersigned United
States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below,
the decision of the Administrative Law Judge is affirmed.
Plaintiff was born on January 12, 1958. (Tr. 22.) He filed his applications on
August 18, 2011. (Tr. 8, 35-36, 89, 96, 100.) He alleged an onset date of August 31,
2009, and alleged disability due to post traumatic stress disorder (PTSD), depression, back
and joint pain, and headaches. (Tr. 152.) Plaintiff’s applications were denied initially,
and he requested a hearing before an ALJ. (Tr. 38-43.)
On March 18, 2013, following a hearing, the ALJ issued a decision that plaintiff
was not disabled. (Tr. 8-17.) On February 7, 2014, the Appeals Council denied plaintiff’s
request for review. (Tr. 1-3.) Thus, the decision of the ALJ stands as the final decision of
II. MEDICAL AND OTHER HISTORY
On September 29, 2000, plaintiff was seen in the emergency room at UC San
Diego Healthcare in San Diego, California, and diagnosed with diabetes and a back
muscle or ligament strain. (Tr. 185-86.)
On June 20, 2011, plaintiff was seen at Smiley Urgent Care/St. Louis Connectcare
for a skin abscess on his buttocks that was approximately 4 centimeters in diameter. The
cyst was drained and dressed, and Bactrim, an antibiotic, was prescribed.
diagnosed with cellulitis, a common skin infection that occurs when bacteria spread
through the skin to deeper tissues. (Tr. 178, 198-99.)
On November 18, 2011, a consultative exam was performed by Lloyd Irwin
Moore, Ph.D. Plaintiff reported that he completed high school in Yugoslavia and that he
had five living siblings. He had been a POW, and had been tortured and witnessed many
atrocities. His current activities included staying at home to look after his mentally ill son,
and occasionally walking outside in his yard. He did not have any friends and did not
socialize because his mood prevented this. Mental status examination revealed that he
was oriented in all spheres but appeared depressed and somewhat nervous. His mood was
dysthymic, i.e., displaying a mild but long-term (chronic) form of depression. Dr. Moore
diagnosed with Major Depressive Disorder (MDD), PTSD, and assigned a GAF score of
55, indicating moderate symptoms.
Dr. Moore believed that plaintiff had moderate
impairments in activities of daily living, social functioning, concentration, persistence, and
pace. (Tr. 203-06.)
On November 18, 2011, Inna Park, M.D., performed an internal medicine
consultative exam. Physical exam revealed tenderness in the cervical and lower lumbar
spine with muscle tenderness in the muscles of the lumbar region as well as the right
gluteal region. Dr. Park’s impression was back pain with radiculopathy (pain radiating
from the spine), joint pain in both hands, and evening headaches. (Tr. 209-12.)
On November 23, 2011, Robert Cottone, Ph.D., completed a mental Residual
functional Capacity (RFC), indicating that plaintiff was markedly limited in the ability to
understand and remember detailed instructions and to carry out detailed instructions. He
was moderately limited in the ability to maintain attention and concentration for extended
periods; to work in coordination with or proximity to others without being distracted by
them; the ability to complete a normal workday and workweek without interruption from
psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods; to interact appropriately with the general
public; to accept instructions and respond appropriately to criticism from supervisors; and
to get along with coworkers or peers without distracting them or exhibiting behavioral
extremes. Dr. Cottone believed that plaintiff could remember, carry out and persist at
simple tasks, make simple work-related judgments, relate adequately to co-workers and
supervisors, and adjust adequately to ordinary changes in work routine or setting. He
opined that plaintiff must avoid work involving intense or extensive interpersonal
interaction, handling complaints or dissatisfied customers, close proximity to co-workers,
and close proximity to military settings. (Tr. 228-30.)
On January 4, 2012, plaintiff saw Mirela Marcu, M.D., a psychiatrist, for increased
symptoms of traumatic injuries over the last year. He reported depression, decreased
interest in doing things, decreased energy, and difficulty sleeping with nightmares. Dr.
Marcu’s mental status evaluation revealed a depressed mood and a congruent affect,
passive death wishes, and paranoia. She diagnosed PTSD, MDD, and assigned a GAF
score of 50, indicating serious symptoms.
Plaintiff agreed to begin therapy and
medication. Dr. Marcu prescribed Celexa, an antidepressant, and Ambien, for insomnia.
On January 5, 2012, plaintiff saw Ginger Fewell, M.D., for follow up for his gluteal
abscess that had been irrigated and debrided the previous month. Dr. Fewell’s assessment
was constipation and a generalized anxiety disorder. (Tr. 265-66.)
At a follow up appointment with Dr. Marcu on February 8, 2012, plaintiff reported
sleeping eleven to twelve hours per night as a side effect of the Ambien and waking up
and feeling tired. His mood was a little better but he was still depressed. Dr. Marcu
discontinued his Ambien, started trazodone, an antidepressant, and continued Celexa. (Tr.
Plaintiff saw Dr. Marcu again on April 18, 2012. Plaintiff reported that his anxiety
and sleep were a little better although he was having nightmares. He reported sadness,
anxiety, isolation, and being bothered by noises. He was very upset about his son who had
schizophrenia. He had not started on trazodone because his pharmacy did not carry the
prescribed strength. Dr. Marcu also diagnosed Adjustment Disorder due to his son’s
mental illness. (Tr. 238.)
Plaintiff saw Dr. Marcu again on June 6, 2012. He was feeling a little better,
sleeping eight to nine hours per night, but was still having nightmares, waking up
frequently, and difficulty falling asleep.
His care was being transferred to another
psychiatrist, Jaron Asher, M.D. (Tr. 239.)
On August 23, 2012, plaintiff saw Dr. Asher. He was sleeping four to six hours per
night. Dr. Asher increased his trazodone and diagnosed prolonged posttraumatic stress.
In November 2012, plaintiff was seen several times for the gluteal abscess which
had recently worsened. The abscess continued to heal but would require surgery. He was
referred to a general surgeon who could see him without insurance. (Tr. 242-58.)
On December 20, 2012, plaintiff saw Dr. Asher, reporting feeling frightened and
anxious for the past month. He reported that increasing his trazodone had improved his
sleep. He reported that he had not worked in two years, that he had a son who was sick,
and that everything is “hard on him.” (Tr. 281.) Mental status exam revealed that his
mood was a little anxious, and foot tapping was noted. Dr. Asher continued his trazodone
and increased his Celexa. (Id.)
A Function Report Adult-Third Party completed by Sanel Bejdic, plaintiff’s case
worker, indicated that plaintiff had difficulty sleeping because of bad dreams about war
trauma. He had difficulty putting his socks and shoes on and with shaving because his
hands shook. Mr. Bejdic reported that plaintiff’s wife handled their financial matters due
to plaintiff’s lack of focus and depression. He further reported that plaintiff has difficulty
with lifting, squatting, kneeling, and reaching. He also had difficulty with memory,
concentration, completing tasks, and understanding and following instructions. (Tr. 13135.)
The ALJ conducted a hearing on January 16, 2013. (Tr. 21-40.) Plaintiff appeared
and testified to the following with the aid of a Bosnian interpreter. He lives with his wife
and disabled son, who is 28 years old. He was born on January 12, 1958 in Bratunac,
Bosnia and Herzegovina. He came to the United States in 2000 and became a citizen in
May 2012. He completed high school in Bosnia. He can read and write in Bosnian, and
read and write very little English. He can lift two gallons of milk before experiencing
back pain. He can stand for approximately thirty minutes at a time, and walk 150 meters
without having to stop. It is very difficult for him to do anything that requires bending,
such as showering and dressing. He can no longer cook at home or do basic chores such
as vacuuming. His wife does the laundry. (Tr. 24-27.)
He spent seven or eight days in a POW camp during the Bosnian War where he
was separated from his family and beaten. He still thinks about his experience in the
camp and cannot remove those pictures from his mind. He has nightmares about the war
two or three times per week despite taking medication. He has difficulty with his memory
and was late to a doctor’s appointment the day before due to his difficulty with memory.
He avoids people and prefers to be by himself. He has crying spells triggered by
memories of the POW camp. His crying spells occur many times a day and last for fifteen
to twenty minutes, and are triggered by his own medical and mental problems and his
disabled son. (Tr. 29-30.)
He has daily constant low level back pain and takes Ibuprofen and uses a cream,
both of which work temporarily. Once or twice a week he has pain in his back that
radiates into his right hip and down his right leg. His doctors have advised him that he has
diabetes. However, he does not have health insurance and cannot get treatment for his
diabetes or his gluteal abscess. (Tr. 30-31.)
Decision of the ALJ
On March 18, 2013, the ALJ issued an unfavorable decision. The ALJ found that
plaintiff had not engaged in substantial gainful activity since August 31, 2009, his alleged
onset date. The ALJ found that plaintiff had the severe impairments of low back pain,
major depressive disorder, and PTSD. However, the ALJ found that he did not have an
impairment or combination of impairments listed in or medically equal to one contained in
the Listings, 20 C.F.R. part 404, subpart P, appendix 1. (Tr. 10-12.)
The ALJ determined that plaintiff retained the RFC to perform light work, except
that he was limited to simple tasks, could not work in close proximity to others, and could
not perform tasks involving intense or extensive interpersonal interaction. (Tr. 13.) The
ALJ found that plaintiff’s impairments would not preclude him from performing his past
relevant work (PRW) as a cleaning or maintenance worker. (Tr. 16.) Consequently, the
ALJ found that plaintiff was not disabled within the meaning of the Act. (Tr. 16.)
III. GENERAL LEGAL PRINCIPLES
The court’s role on judicial review of the Commissioner’s decision is to determine
whether the Commissioner’s findings comply with the relevant legal requirements and are
supported by substantial evidence in the record as a whole. Pate-Fires v. Astrue, 564 F.3d
935, 942 (8th Cir. 2009). “Substantial evidence is less than a preponderance, but is
enough that a reasonable mind would find it adequate to support the Commissioner’s
conclusion.” Id. In determining whether the evidence is substantial, the court considers
evidence that both supports and detracts from the Commissioner's decision. Id. As long
as substantial evidence supports the decision, the court may not reverse it merely because
substantial evidence exists in the record that would support a contrary outcome or because
the court would have decided the case differently. See Krogmeier v. Barnhart, 294 F.3d
1019, 1022 (8th Cir. 2002).
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),
1382c(a)(3)(A); Pate-Fires, 564 F.3d at 942. A five-step regulatory framework is used to
determine whether an individual is disabled. 20 C.F.R. § 404.1520(a)(4); see also Bowen
v. Yuckert, 482 U.S. 137, 140-42 (1987) (describing the five-step process); Pate-Fires,
564 F.3d at 942 (same).
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. 20 C.F.R. § 404.1520(a)(4)(i)-(iii). If
the claimant does not suffer from a listed impairment or its equivalent, the
Commissioner’s analysis proceeds to Steps Four and Five.
Step Four requires the
Commissioner to consider whether the claimant retains the RFC to perform past relevant
work (PRW). Id. § 404.1520(a)(4)(iv). The claimant bears the burden of demonstrating
he is no longer able to return to his PRW.
Pate-Fires, 564 F.3d at 942.
Commissioner determines the claimant cannot return to PRW, the burden shifts to the
Commissioner at Step Five to show the claimant retains the RFC to perform other work
that exists in significant numbers in the national economy.
Id.; 20 C.F.R.
Plaintiff argues that the ALJ erred in failing to give “great weight” to the opinion of
his treating psychiatrist, Dr. Mirela Marcu, and in failing to obtain Vocational Expert (VE)
testimony. This court disagrees.
A. Opinion of treating psychiatrist, Mirela Marcu, M.D.
Plaintiff argues that the ALJ erred in failing to give “great weight” to the opinion of
his treating psychiatrist, Mirela Marcu, M.D. Opinions from medical sources who have
treated a claimant typically receive more weight than opinions from one-time examiners
or non-examining sources. See 20 C.F.R. § 416.927(c)(1)-(2). However, the rule is not
absolute; a treating physician’s opinion may be disregarded in favor of other opinions if it
does not find support in the record. See Casey v. Astrue, 503 F.3d 687, 692 (8th Cir.
2007). Likewise, an ALJ may appropriately rely on non-examining opinions as part of his
RFC analysis. See Hacker v. Barnhart, 459 F.3d 934, 935, 939 (8th Cir. 2006) (ALJ’s
RFC assessment was supported by substantial evidence, including the opinions from nonexamining doctors). Ultimately, it is up to the ALJ to determine the weight each medical
opinion is due. Id.
In this case, the ALJ properly considered the opinion of Dr. Marcu. The ALJ
summarized Dr. Marcu’s course of treatment, noting that it consisted of only four visits
between January and June 2012. (Tr. 11, 231-39.) In January 2012, Dr. Marcu initially
diagnosed plaintiff with PTSD and MDD. She assigned a GAF score of 50 and prescribed
an antidepressant and sleep aid. In April and June 2012, Dr. Marcu reported plaintiff was
doing better, experiencing less anxiety and sleeping better. Although plaintiff had a
depressed and constricted affect, he was pleasant, with fair eye contact. (Tr. 236-39.)
The ALJ gave no weight to the GAF score assigned by Dr. Marcu, finding that the
GAF score was not consistent with the record as a whole and because the medical record
evidence did not support such severity. The ALJ noted that in November 2011, prior to
the initial denial of plaintiff’s applications and before plaintiff sought mental health
treatment, a mental status examination revealed normal speech, calm motor activity, and
blunted but sometimes labile (rapidly changing) and depressed mood. The ALJ noted that
at that time, plaintiff’s thought processes were intact, he had no delusions or thought
disorders, his judgment was good, and his insight was fair, although he was pessimistic.
(Tr. 11, 38, 205.) In November 2011, the consultative examiner opined that plaintiff had
only moderate impairments in his activities of daily living, social functioning, and
concentration, consistence, and pace. He assessed a GAF score of 55. (Tr. 206.)
The ALJ was entitled to question the inconsistency between the consultative
examiner’s opinion and GAF score and that of Dr. Marcu. See Strongson v. Barnhart, 361
F.3d 1066, 1070 (8th Cir. 2004) (ALJ need not need to give controlling weight to
physician’s RFC assessment if it is inconsistent with other substantial record evidence).
Similarly, the ALJ also noted that Dr. Marcu’s GAF score was not supported by plaintiff’s
treatment notes. See, e.g., Halverson v. Astrue, 600 F.3d 922, 930 (8th Cir. 2010)
(permissible for ALJ to discount treating physician’s opinion that is inconsistent with the
physician’s treatment notes).
The ALJ noted that Dr. Marcu assessed plaintiff’s GAF score before he started
medication and that Dr. Marcu noted that plaintiff’s condition improved while on
(Tr. 11, 15, 238-39.) “If an impairment can be controlled by treatment or
medication, it cannot be considered disabling.” Brace v. Astrue, 578 F.3d 882, 885 (8th
Cir. 2009)); see also Perkins v. Astrue, 648 F.3d 892, 901 (8th Cir. 2011) (a determination
that an illness is well controlled with medication precludes a finding of disability).
To the extent plaintiff is relying on the GAF scores assigned by Dr. Marcu,
according to the Diagnostic and Statistical Manual of Mental Disorders (DSM-V), the
GAF scale is intended for use by practitioners in making treatment decisions. American
Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 32-33 (4th ed.Text Revision 2000) (DSM-IV). However, the most recent version of the DSM dropped
GAF from inclusion because of its “conceptual lack of clarity (i.e., including symptoms,
suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine
practice.” DSM-V 16 (5th ed. 2013).
Moreover, neither Social Security regulations nor case law require an ALJ to
determine the extent of an individual’s mental impairment based solely on a GAF score.
In fact, the Commissioner has declined to endorse the GAF scale for “use in the Social
Security and SSI disability programs,” and has indicated that GAF scores have no “direct
correlation to the severity requirements of the mental disorders listings.” See 65 Fed. Reg.
50746, 50764-65, 2000 WL 1173632 (August 21, 2000).
While the Commissioner has declined to endorse the GAF scale for use in the
Social Security and SSI disability programs, GAF scores may still be used to assist the
ALJ in assessing the level of a claimant's functioning. Halverson, 600 F.3d at 930-31
(GAF score may be of considerable help in formulating RFC, but is not essential to RFC's
accuracy). GAF scores may also be considered by the ALJ when considering weight to
be given treating doctor’s opinion and whether the doctor’s opinion is inconsistent with
treatment record. Myers v. Colvin, 721 F.3d 521, 525 (8th Cir. 2013). In Pate-Fires, the
Eighth Circuit held that because the claimant’s GAF score was above 50 only four out of
twenty-one times in a six-year period, the history of GAF scores at 50 and below, taken as
a whole, indicated serious symptoms and supported the treating physician’s opinion that
the claimant was not capable of gainful employment. 564 F.3d at 944. In this case
plaintiff has not presented a “GAF score history” similar to Pate-Fires. Moreover, the
ALJ here relied heavily on other record evidence in reaching his conclusions. Finally, the
Eighth Circuit has since noted that the court in Pate–Fires did not reference 65 Federal
Regulation 50746, 50764–65 (August 21, 2000), in which the Commissioner declined to
endorse the GAF scales to evaluate Social Security claims because the scales do not have
a direct correlation to the severity requirements in mental disorders listings. Jones v.
Astrue, 619 F.3d 963, 974 (8th Cir. 2010).
Therefore, because there is no direct
correlation between plaintiff’s GAF scores and a mental impairment’s severity, and the
ALJ has no obligation to credit or even consider GAF scores in the disability
determination, plaintiff’s reliance on his GAF scores is without merit.
- 10 -
The ALJ here also noted that plaintiff did not seek treatment for his mental
impairment until after his initial applications for benefits were denied. (Tr. 14.) The ALJ
was entitled to consider plaintiff’s eleven-year delay in seeking treatment. Cf. Edwards v.
Barnhart, 314 F.3d 964, 967 (8th Cir. 2003) (ALJ may discount a claimant's subjective
complaints of pain based on the claimant's failure to pursue regular medical treatment;
ALJ correctly concluded that if claimant’s pain was as severe as alleged, claimant would
have sought regular medical treatment).
Because the ALJ articulated the reasons for discounting Dr. Marcu’s GAF score,
and because substantial evidence in the record as a whole supports those reasons, this
Court holds the ALJ committed no error.
A. Vocational Expert Testimony
Plaintiff next argues that the ALJ erred in failing to obtain VE testimony in light of
the evidence of his nonexertional impairments, i.e., his PTSD and depression.
Residual functional capacity is a determination based on all the record evidence,
not just the medical evidence. See Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir. 2010);
see also 20 C.F.R. §§ 404.1545 and 416.945; Social Security Ruling (SSR) 96-8p.
Although the RFC formulation is a part of the medical portion of a disability adjudication,
as opposed to the vocational portion, it is not based only on “medical” evidence. Rather
an ALJ has the duty to formulate RFC based on all the relevant, credible evidence of
records. See Perks v. Astrue, 687 F.3d 1086, 1092 (8th Cir. 2012) (“Even though the RFC
assessment draws from medical sources for support, it is ultimately an administrative
determination reserved to the Commissioner.”).
see also 20 C.F.R. §§ 404.1545,
404.1546, 416.945, and 416.946; SSR 96-8p. Substantial evidence supports the ALJ’s
In this case, the ALJ found that plaintiff retained the RFC to perform light work,
except that he was limited to simple tasks, could not work in close proximity to others,
and could not perform tasks involving intense or extensive interpersonal interaction. (Tr.
- 11 -
13.) The ALJ found that plaintiff’s impairments would not preclude him from performing
his PRW as a cleaning or maintenance worker. (Tr. 16.)
Because plaintiff retained the ability to return to his PRW, the burden of proof at
Step Four of the evaluative process was his. See 68 Fed. Reg. 51155 (Aug. 26, 2003)
(plaintiff shoulders the dual burdens of production and persuasion through Step Four of
the sequential evaluation process); Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir.
2000) (claimant has the burden of proof at Step Four).
In support, plaintiff cites McDonald v. Schweiker, 698 F.2d 361 (8th Cir. 1983),
for the proposition that his nonexertional impairments required the ALJ to obtain VE
testimony to determine whether he was disabled. However, in McDonald, the ALJ found
that the claimant could no longer perform her PRW and was ultimately decided at Step
Five of the sequential analysis. 698 F.2d at 364-65. In contrast, no VE testimony was
necessary in this case because the ALJ decided at Step Four that plaintiff could return to
his PRW. When the ALJ determines at Step Four that a claimant can perform his PRW,
he is under no obligation to seek additional information from a VE. See Lewis v.
Barnhart, 353 F.3d 642, 648 (8th Cir. 2003) (VE testimony is not required at Step Four
where the claimant retains the burden of proving she cannot perform her PRW). This is
true even where a claimant has nonexertional impairments. See, e.g., Banks v. Massanari,
258 F.3d 820, 827-28 (8th Cir. 2001) (“Vocational expert testimony is not required until
Step Five when the burden shifts to the Commissioner, and then only when the claimant
has nonexertional impairments, which make use of the medical vocational guidelines, or
‘grids,’ inappropriate.”). Accordingly, this court concludes the ALJ committed no error.
For the reasons set forth above, the decision of the Commissioner of Social
Security is affirmed. An appropriate Judgment Order is issued herewith.
S/ David D. Noce
UNITED STATES MAGISTRATE JUDGE
Signed on August 21, 2015.
- 12 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?