Gray v. Colvin

Filing 17

MEMORANDUM AND ORDER re: 11 SOCIAL SECURITY BRIEF filed by Plaintiff David Gray ; IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and Plaintiff's Complaint is DISMISSED with prejudice. A separate Judgment will accompany this Order.. Signed by District Judge John A. Ross on 9/28/15. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DAVID GRAY,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

Case No. 4:14-cv-00815-JAR

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner of
Social Security’s final decision denying David Gray’s (“Gray”) applications for disability
insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq., and
supplemental security income under Title XVI of the Social Security Act, 42 U.S.C. § 1381–85.
I.

Background

Gray filed his applications for disability insurance benefits and supplemental security
income on October 21, 2010, and December 15, 2010, respectively. (Tr. 106-07) The Social
Security Administration (“SSA”) denied Gray’s applications on April 18, 2011. (Tr. 106-13) He
filed a timely request for a hearing before an administrative law judge (“ALJ”) on April 26,
2011. (Tr. 114-15) Following a hearing, the ALJ issued a written decision on March 7, 2013,
upholding the denial of benefits. (Tr. 17-38) Gray requested review of the ALJ’s decision by the
Appeals Council. (Tr. 15-16) On February 25, 2014, the Appeals Council denied Gray’s request
for review. (Tr. 1-6) Thus, the decision of the ALJ stands as the final decision of the
Commissioner. See Sims v. Apfel, 530 U.S. 103, 107 (2000).

Gray filed this appeal on April 28, 2014. (Doc. 1) The Commissioner filed an Answer.
(Doc. 7) Gray filed a Brief in Support of his Complaint. (Doc. 11) The Commissioner filed a
Brief in Support of the Answer. (Doc. 16)
II.

Decision of the ALJ

The ALJ determined that Gray meets the insured status requirements of the Social
Security Act through March 31, 2015, and had not engaged in substantial gainful activity since
September 30, 2010, the alleged onset date of disability. (Tr. 22) The ALJ found Gray has the
severe impairments of status-post right hip surgery, bipolar disorder, stress disorder, depressive
disorder, post-traumatic stress disorder, and polysubstance abuse but that no impairment or
combination of impairments met or medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 23)
After considering the entire record, the ALJ determined Gray has the residual functional
capacity (“RFC”) to perform light work except that he should avoid ropes, ladders, and scaffolds.
(Tr. 25) Further, Gray should avoid hazardous heights and extremes of heat (Id.) The ALJ also
limited Gray to unskilled work. (Id.) The ALJ found Gray unable to perform any past relevant
work, but that there are jobs that exist in significant numbers in the national economy that he can
perform, including unarmed security guard, cleaner, and information clerk. (Tr. 31-32) Thus, the
ALJ concluded that a finding of “not disabled” was appropriate. (Tr. 32) Gray appeals, arguing a
lack of substantial evidence to support the Commissioner’s decision.
III.

Administrative Record

The following is a summary of the relevant evidence before the ALJ.
A.

Hearing Testimony

2

The ALJ held a hearing in this matter on July 17, 2012, and a supplemental hearing on
January 29, 2014. The ALJ heard testimony from Gray and Gerald Belchick, a vocational expert.
(Tr. 39-105)
1.

Gray’s testimony

At the time of the first hearing, Gray was living with his wife and his four children. (Tr.
60) His children were 2, 4, 9, and 13 years old. (Id.) His wife works full time. (Tr. 61) He stays
home alone with the two and four year old children. (Id.) When he has bad days, his neighbors
help watch the children. (Tr. 85) Gray has a GED plus additional vocational training. (Id.) His
additional vocational training is as a union journeyman carpenter. (Id.) He has not taken any
classes from September 2010 to the time of the first hearing. (Id.)
Prior to his motor vehicle accident in November 2008, Gray assisted his family in some
farming activities. (Tr. 61-64) However, Gray did not receive any earnings from the farming nor
did he report it as work on his work history report. (Tr. 63) He worked as a valet parking
attendant at Larkin Parking, as a dismantler at Craig Automotive, as an apartment maintenance
man, and as an assembly worker for Paramount Headwear. (Tr. 64-65) Gray also worked as a
carpenter for Harsco Corporation, Sunrise Building Company, and McBride and Son
Management Company. (Tr. 65-66) For roughly four months, Gray additionally worked as a
filing clerk at Atlas Reserve Temporaries. (Tr. 64, 73) Because Gray accumulated total earnings
of $2,736 at that job, which is under Substantial Gainful Activity, counsel requested that the ALJ
not consider it under past relevant work. (Tr. 73)
Gray’s counsel indicated that Gray’s non-exertional health problems are major depressive
disorder, posttraumatic stress disorder, and anxiety disorder. (Tr. 69) Gray also suffered a heat
stroke in 2010 resulting in complaints of cognitive difficulty and some memory difficulty. (Id.)

3

Specifically, Gray testified that he has issues with his short-term memory. (Tr. 94) Gray no
longer goes outside if it is over 90 degrees. (Tr. 96)
On the exertional side, counsel stated that Gray is dealing with a traumatic hip injury that
occurred as a result of a motor vehicle accident in November 2008. (Tr. 69) As for the thencurrent status of the hip, counsel indicated that Gray was post open reduction internal fixation
and that post-imaging has shown a screw in the sciatic notch irritating the nerve. (Id.) Gray has
also been diagnosed with sciatica. (Id.) Gray testified that as a result of the hip injury he has
trouble walking and will occasionally need a cane. (Tr. 87-89) Specifically, Gray testified that he
can walk for two hundred feet at a time. (Tr. 89) He can only stand for at most ten minutes and
sit for 15 to 20 minutes. (Tr. 89-90) Gray also testified that of an eight hour day, he spends at
least two hours sitting, propped, or stretched. (Tr. 93) Additionally, Gray also suffered a
traumatic injury to his left hand which required tissue removal. (Tr. 71) The injury occurred
when Gray was a child. (Tr. 97) Counsel indicated that as a result Gray has fine and gross
manipulation limitations. (Tr. 71) Gray cannot continuously grip or hold onto something tightly
with his left hand. (Tr. 98) He is also unable to type. (Tr. 98-99)
Gray testified that he used marijuana about a year prior to the first hearing and that he
had been addicted to Percocet. (Tr. 68, 75)
2.

Testimony of Vocational Expert

Vocational expert, Gerald Belchick, testified regarding Gray’s vocational history as
follows. Gray has been a carpenter or a home builder, code 860.381-022, with a specific
vocational preparation (“SVP”) of 7 and classified by the Dictionary of Occupational Titles
(“DOT”) as medium work. (Tr. 101-02) He also worked as a dismantler in an auto shop/junk
yard, code 929.687-022, with an SVP of 2 and classified as medium work, as an apartment

4

maintenance person, code 899.381-010, with an SVP of 7, classified as medium work, as a file
clerk, code 206.367-014, with an SVP of 2, classified as light work, in a valet parking garage,
code 915.473-010, with an SVP of 2, classified as light work, as a farmer, code 421.687-010,
with an SVP of 2, classified as medium work, in a customer service job, code 299.367-010, with
an SVP of 3, classified as light work, and in production assembly, code 706.687-010, with an
SVP of 2, classified as light work. (Tr. 102-03)
For hypothetical one, the ALJ asked Belchick to assume a person limited to light,
unskilled work who should avoid ropes, ladders, scaffolding, hazardous heights, and extremes in
heat. (Tr. 103) Belchick testified that Gray could return to his past relevant work as an
assembler/hat decorator, as a filing clerk, and in the car part job. (Id.) Belchick further testified
that there was not a conflict between the vocational evidence he provided and the information in
the DOT. (Id.)
A supplemental hearing was held on January 29, 2014, to allow for additional testimony
from Belchick, the vocational expert. At the supplemental hearing Belchick addressed Gray’s
previous work as a farmer, indicating it has a code of 860.381-022, with an SVP of 7, and
classified as medium work. (Tr. 45) The ALJ again asked Belchick to assume a person limited to
light, unskilled work who should avoid ropes, ladders, scaffolding, hazardous heights, and
extremes in heat. (Id.) Although initially the VE indicated that Gray could not return to his past
work, Belchick then indicated that Gray could do his part work as a file clerk, a valet parker, and
as an assembler. (Id.)
The ALJ then asked the VE whether a hypothetical individual with the same education,
vocational background, and residual functional capacity as Gray had the ability to perform at
least three other additional jobs that exist in significant numbers on a regional and national level.

5

(Tr. 45-46). Belchick testified that such a person would be able to perform a job such as unarmed
security guard, code 372.667-030, SVP of 2, light, unskilled work. There are 1,200 such
positions locally and 81,000 positions nationally. (Tr. 46) In addition, such a person could
perform the job of cleaner, code 301.474.010, SVP of 2, light, unskilled. There are 6,000 such
positions locally and 420,000 nationally. (Tr. 46-47) Finally, there is an information clerk
position that a person could do, code 237.367-018, SVP of 2, light, unskilled. There are 1,100
such positions locally and 72,000 nationally. (Tr. 47)
Gray’s attorney asked Belchick how his opinion would be impacted if he took the first
hypothetical and included the limitation of a person who could never be in the seated or standing
position for longer than 15 minutes or, in other words, required alteration every 15 minutes. (Tr.
48) Belchick responded that this limitation would eliminate all of the jobs he mentioned. (Id.)
Belchick then testified that such a person could work as a counselor under cashier II. (Tr. 49)
Counsel then asked Belchick if a person who was required to leave a workstation, even for a
couple of minutes at a time, if the position of counselor could be performed. (Id.) Belchick
responded that a person with such limitations could not work as a counselor. (Id.) Belchick
further testified that there are not any jobs that one could do if an individual would require lying
down flat at random times, required unscheduled breaks, or would be absent two or more times a
month. (Tr. 49-50)
In the supplemental hearing, Gray additionally testified that he worked as a residential
tree climber for Clayton’s Tree Service. (Tr. 52) Gray indicated that he apprenticed to learn the
trade and that it is a high skill set job. (Tr. 52-53) Belchick testified that the DOT code for that
job is 408.664-010, with an SVP of 4, and classified as heavy work. (Tr. 53)

6

B.

Medical Records

The ALJ summarized Gray’s medical records at Tr. 25-31. Relevant medical records are
discussed as part of the analysis.
IV.

Standards

The Social Security Act defines as disabled a person who is “unable to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A); see
also Brantley v. Colvin, 2013 WL 4007441, at * 2 (E.D. Mo. Aug. 2, 2013). The impairment
must be “of such severity that [the claimant] is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy, regardless of whether such work
exists in the immediate area in which he lives, or whether a specific job vacancy exists for him,
or whether he would be hired if he applied for work.” 42 U.S.C. § 1382c(a)(3)(B).
Under the Social Security Act, the Commissioner has established a five-step process for
determining whether a person is disabled. 20 C.F.R. §§ 416.920(a), 404.1520(a). “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.” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005)
(quoting 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), 404.1520(a).
Second, the claimant must have a “severe impairment,” defined as “any impairment or
combination of impairments which significantly limits [claimant’s] physical or mental ability to
do basic work activities.” 20 C.F.R. §§ 416.920(c), 404.1520(c). “The sequential evaluation

7

process may be terminated at step two only when the claimant’s impairment or combination of
impairments would have no more than a minimal impact on [his or] her ability to work.” Page v.
Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605
(8th Cir. 2001).
Third, the claimant must establish that his or her impairment meets or equals an
impairment listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d). If the claimant has
one of, or the medical equivalent of, these impairments, then the claimant is per se disabled
without consideration of the claimant’s age, education, or work history. Id.
Before considering step four, the ALJ must determine the claimant’s residual functional
capacity (“RFC”). 20 C.F.R. §§ 404.1520(e), 416.920(e). RFC is defined as “the most a claimant
can do despite [his] limitations.” Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20
C.F.R. § 404.1545(a)(1)). At step four, the ALJ determines whether the claimant can return to his
past relevant work, by comparing the claimant’s RFC with the physical and mental demands of
the

claimant’s

past

relevant

work.

20

C.F.R.

§§ 404.1520(a)(4)(iv),

404.1520(f),

416.920(a)(4)(iv), 416.920(f); McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011). If the
claimant can still perform past relevant work, he will not be found to be disabled; if the claimant
cannot, the analysis proceeds to the next step. Id.
At step five, the ALJ considers the claimant’s RFC, age, education, and work experience
to see if the claimant can make an adjustment to other work in the national economy. 20 C.F.R.
§§ 416.920(a)(4)(v). If the claimant cannot make an adjustment to other work, then he will be
found to be disabled. 20 C.F.R. §§ 416.920(a)(4)(v), 404.1520(a)(4)(v). Through step four, the
burden remains with the claimant to prove that he is disabled. Brantley, 2013 WL 4007441, at *3
(citation omitted). At step five, the burden shifts to the Commissioner to establish that the

8

claimant maintains the RFC to perform a significant number of jobs within the national
economy. Id. The Commissioner may refer to the Medical-Vocational Guidelines or “Grids,” 20
CFR Part 404, Subpart P, Appendix 2,1 to meet this burden. Pearsall v. Massanari, 274 F.3d
1211, 1219 (8th Cir. 2001). “The ultimate burden of persuasion to prove disability, however,
remains with the claimant.” Meyerpeter v. Astrue, 902 F.Supp.2d 1219, 1229 (E.D. Mo. 2012)
(citations omitted).
The court's role on judicial review is to determine whether the ALJ's findings are
supported by substantial evidence in the record as a whole. Pate–Fires v. Astrue, 564 F.3d 935,
942 (8th Cir. 2009). In determining whether the evidence is substantial, the court considers
evidence that both supports and detracts from the Commissioner's decision. Cox v. Astrue, 495
F.3d 614, 617 (8th Cir. 2007). 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 determine whether the ALJ’s final decision is supported by substantial evidence, the
Court is required to review the administrative record as a whole and to consider:
(1) The findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating physicians;
(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 physical impairment;
The Grids “are a set of charts listing certain vocational profiles that warrant a finding of disability or
non-disability.” Phillips v. Astrue, 671 F.3d 699, 702 (8th Cir. 2012). “If the ALJ’s findings as to RFC,
age, education, and work experience fit any of the combinations of those criteria contained in the Tables
in Appendix 2 to Part 404, then the ALJ must reach the conclusion (either ‘disabled’ or ‘not disabled’)
directed by the relevant Rule or line of the applicable Table.” Id. (quoting Reed v. Sullivan, 988 F.2d 812,
816 (8th Cir. 1993)).
1

9

(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).
V.

Discussion

In his appeal of the Commissioner’s decision, Gray raises three issues. First, Gray asserts
that the ALJ failed to properly weigh the medical evidence. (Doc. 11 at 11-20) Second, Gray
argues that the ALJ failed to properly evaluate Gray’s credibility. (Id. at 20-24) Third, Gray
asserts that the ALJ relied on flawed vocational expert testimony. (Id. at 24-25) Upon review, the
Court finds substantial evidence in the record to support the ALJ’s decision.
A. Medical Opinion Evidence
Gray asserts that the ALJ failed to properly weigh the treating source opinions of Dr.
Jennifer Barbin (“Dr. Barbin”), his treating physician; Dr. Heather Hill (“Dr. Hill”), his treating
psychiatrist; and Ms. Marilyn Coffman, LPC, MA (“Ms. Coffman”), his treating therapist. Gray
also appears to dispute the ALJ’s finding giving “great weight” to the opinion of Terry Dunn,
Ph.D. (“Dr. Dunn”), the state agency psychiatric consultant.
A treating physician's opinion is generally entitled to substantial weight but does not
automatically control. Brown v. Astrue, 611 F.3d 941, 951-52 (8th Cir. 2010) (quoting Heino v.
Astrue, 578 F.3d 873, 880 (8th Cir. 2009) (internal quotations and citation omitted). “An ALJ
may credit other medical evaluations over that of the treating physician when such other
assessments are supported by better or more thorough medical evidence.” Id. In addition, treating
source opinions on issues reserved to the Commissioner are never entitled to controlling weight
or special significance. Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005); House v. Astrue,
500 F.3d 741, 745 (8th Cir. 2007) (A physician's opinion that a claimant is “disabled” or “unable
10

to work” does not carry “any special significance,” because it invades the province of the
Commissioner to make the ultimate determination of disability). “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.”
Andrews v. Colvin, 2014 WL 2968815, at *2 (E.D. Mo. July 1, 2014) (quoting Prosch v. Apfel,
201 F.3d 1010, 1013 (8th Cir. 2000)).
Therapists, on the other hand, are not medical sources as defined by the Regulations. See
20 C.F.R. §§ 404.1513(a), 416.913(a) (excluding therapists from the list of acceptable medical
sources); Raney v. Barnhart, 396 F.3d 1007, 1010 (8th Cir. 2005) (“A therapist is not an
‘acceptable medical source’ to establish ‘a medically determinable impairment.’ ”). However, the
Commissioner may also “use evidence from other sources to show the severity of your
impairment(s) and how it affects your ability to work.” Lacroix v. Barnhart, 465 F.3d 881, 88687 (8th Cir. 2006) (citing 20 C.F.R. §§ 404.1513(d), 416.913(d)). “In determining what weight to
give ‘other medical evidence,’ the ALJ has more discretion and is permitted to consider any
inconsistencies found within the record.” Raney v. Barnhart, 396 F.3d 1007, 1010 (8th Cir. 2005)
(citing 20 C.F.R. § 416.927(d)(4)).
1. Dr. Barbin
First, Gray asserts that the ALJ failed to properly weigh the treating source opinion of Dr.
Barbin. At issue is Dr. Barbin’s opinion reported in a Multiple Impairment Questionnaire dated
September 28, 2011. (Tr. 375-82) In the Questionnaire, Dr. Barbin concluded that Gray can only
sit or stand/walk for a maximum of 1 hour and is unable to lift or carry more than 20lbs. (Tr.
377-378) Dr. Barbin further opined that Gray has marked limitation grasping, turning, twisting
objects with his left hand, marked limitation using his fingers/hands for fine manipulations on his

11

left hand, and moderate limitations using his fingers/hands for fine manipulations on his right
hand. (Tr. 378-379) Dr. Barbin additionally reported that Gray would need to take breaks of half
an hour or longer, several times an hour. (Tr. 380) Dr. Barbin also indicated that Gray would
need to avoid temperature extremes, need to avoid humidity, need to avoid heights, and could not
engage in pushing, pulling, kneeling, bending, or stooping. (Tr. 381). Dr. Barbin noted that
Gray’s experience of pain constantly interferes with his attention and concentration. (Tr. 380)
The Court finds that the ALJ properly evaluated Dr. Barbin’s opinions, listing “good
reasons” for giving them little weight. Prosch, 201 F.3d at 1013. The ALJ afforded Dr. Barbin’s
opinion “little weight because it is neither consistent with nor supported by the evidence.” (Tr.
29) In so-doing, the ALJ provided several examples from the record of the inconsistencies. See
Travis v. Astrue, 477 F.3d 1037, 1041 (8th Cir. 2007) (“If the doctor’s opinion is inconsistent
with or contrary to the medical evidence as a whole, the ALJ can accord it less weight.”). First,
the ALJ noted that Dr. Barbin asserted that Gray had moderate limitations using his
fingers/hands on the right side for fine manipulations, even though claimant does not have any
impairment that affects his right hand.2 (Tr. 29) Further, as a second example, the ALJ indicated
that Dr. Barbin asserted that Gray’s pain, fatigue, or other symptoms are constantly severe
enough to interfere with attention and concentration while also making the statement, in a
treatment note, that Gray has a normal attention span and concentration. (Tr. 29-30) Third, the
ALJ highlighted Dr. Barbin’s statement that Gray “has done a remarkable job with attending all
appointments and following physicians’ recommendations.” (Tr. 30) However, this statement is
contradicted, as the ALJ noted, by Gray’s own testimony that he had been addicted to Percocet
and had some continued use of marijuana. (Id.) To the extent that Gray attempts to counter these
examples with other or additional medical records, the Court finds his arguments unpersuasive.
2

Gray’s impairment is to his left hand.

12

The ALJ may reject the conclusions of any medical expert if they are unsupported and
inconsistent with the record as a whole. See Johnson v. Apfel, 240 F.3d 1145, 1148 (8th Cir.
2001) (citing Bentley v. Shalala, 52 F.3d 784, 787 (8th Cir. 1995)).
Additionally, the ALJ indicated that Dr. Barbin stated that her opinion was based on
Gray’s subjective report, rather than her independent medical analysis. (Tr. 30) Although Gray
asserts that Dr. Barbin indicated that her opinions were supported by radiographic studies (Tr.
375-376), neither Gray nor Dr. Barbin indicate which studies support these extreme limitations.
In fact, Dr. Barbin’s opinion does not appear to be supported by the medical evidence. (Tr. 2830, 385, 399, 403, 405-406, 414, 441-445, 450). Furthermore, an ALJ can give less weight to
medical opinion because it appears to be based solely on claimant’ subjective complaints. See
Gonzales v. Barnhart, 465 F.3d 890, 896 (8th Cir. 2006).
Finally, although the ALJ did not explicitly cite to any evidence contradicting Dr.
Barbin’s opinion in that portion of the opinion wherein she addresses the weight given to Dr.
Barbin’s opinion, the ALJ presented a lengthy review of the medical evidence regarding Gray’s
physical impairments elsewhere in the opinion (Tr. 28) and it is Gray’s burden to provide the
medical evidence to establish disability, not the ALJ’s. Stormo v. Barnhart, 377 F.3d 801, 806
(8th Cir. 2004) (“The burden of persuasion to prove disability and to demonstrate RFC remains
on the claimant, even when the burden of production shifts to the Commissioner at step five.”).
2. Dr. Hill
Next, Gray asserts that the ALJ failed to properly weigh the treating source opinion of
Dr. Hill, his treating psychiatrist. Dr. Hill diagnosed Gray with bipolar disorder, post-traumatic
stress disorder, and a cognitive disorder secondary to head trauma. (Tr. 801) Dr. Hill assigned

13

Gray a global assessment of functioning (“GAF”) score of 60. 3 (Id.) Dr. Hill also indicated that
Gray’s highest GAF score in the past year was a 65.4 (Id.) Dr. Hill found Gray to be markedly
limited in: the ability to understand and remember detailed instructions; the ability to carry out
detailed instructions; the ability to maintain attention and concentration for extended periods; the
ability to work in coordination with or proximity to others without being distracted by them; the
ability to complete a normal workweek without interruptions; the ability to interact appropriately
with the general public; and the ability to accept instructions and respond appropriately to
criticism from supervisors. (Tr. 805-806)
The Court concludes the ALJ properly evaluated Dr. Hill’s opinions, listing “good
reasons” for giving them little weight. Prosch, 201 F.3d at 1013. Specifically, the ALJ afforded
Dr. Hill’s opinion “little weight because it is neither consistent with nor supported by the
evidence.” (Tr. 30) Although the ALJ does not provide specific examples of this inconsistency in
her paragraph discounting the opinion of Dr. Hill, the ALJ extensively reviewed the mental
impairment medical records noting that Gray’s “depression is controlled by medication” and that
the state agency psychiatric consultant, Dr. Dunn, found that Gray “had no restriction in
activities of daily living, social functioning, as well as ability to maintain concentration,
persistence, or pace, and had experienced no episodes of decompensation of extended duration.”

3

The Global Assessment of Functioning Scale (GAF) is a psychological assessment tool wherein an examiner is to
“[c]onsider psychological, social, and occupational functioning on a hypothetical continuum of mental healthillness”; it does “not include impairment in functioning due to physical (or environmental) limitations.” Diagnostic
and Statistical Manual of Mental Disorders (DSM-IV), 32 (4th ed. 1994). A GAF score of 51 to 60 is “indicative of
‘moderate symptoms' or ‘moderate difficulty in social, occupational, or school functioning.’ ” Lacroix v. Barnhart,
465 F.3d 881, 883 (8th Cir.2006) (quotation omitted). In Pate–Fires v. Astrue, 564 F.3d 935, 944 (8th Cir. 2009), the
Eighth Circuit found that a GAF score in the 51–60 range was not “inconsistent with [an] opinion that [the claimant]
was permanently disabled for any type of employment, nor does it constitute substantial evidence supporting the
ALJ's conclusion she is not disabled.” Id. (citing Colon v. Barnhart, 424 F.Supp.2d 805, 813–14 (E.D.Pa.2006)
(“indicating an ALJ must consider a claimant's total GAF score history, and remanding the case for reconsideration
where ALJ failed to consider or discuss claimant's lowest scores[.]”)).
4
A GAF score of 61–70 indicates “[s]ome mild symptoms (e.g., depressed mood and mild insomnia) or some
difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but
generally functioning pretty well, has some meaningful interpersonal relationships.” DSM–IV 32.

14

(Tr. 29) Moreover, the ALJ indicated that Dr. Hill had seen Gray at most three times when Dr.
Hill formed her opinions. (Tr. 30) “Generally, the longer a treating source has treated [a
claimant] and the more times [the claimant has] been seen by a treating source, the more weight
[the Commissioner] will give to the source's medical opinion.” 20 C.F.R. §§ 404.1527(d)(2)(i) &
416.927(d)(2)(i). See also Randolph v. Barnhart, 386 F.3d 835, 840 (8th Cir. 2004) (holding that
a doctor's opinion stated in a checklist should not have been given controlling weight because the
doctor had met with the plaintiff only three times at the time he completed the form).
3. Ms. Coffman
Gray also asserts that the ALJ failed to properly weigh the opinion of Ms. Coffman, his
treating

therapist.

Ms.

Coffman

completed

a

Psychiatric/Psychological

Impairment

Questionnaire. In the Questionnaire, Ms. Coffman opined that Gray is markedly limited in his
ability to understand and remember detailed instructions; the ability to maintain attention and
concentration for extended periods; the ability to complete a normal workweek without
interruptions; and the ability to interact appropriately with the general public. (Tr. 296-297) Ms.
Coffman also provided a letter to the Commissioner in which she indicated that Gray “has a low
frustration tolerance level” and “[h]is level of stress is always high.” (Tr. 302) As a result of
these attributes, Ms. Coffman reported that Gray “is prone to display behavior that is not
customary for him” specifically, “angry outbursts.” (Id.)
The Court finds that the ALJ properly evaluated Ms. Coffman’s opinions. Specifically,
the ALJ indicated that Ms. Coffman only examined Gray for a total of six hours. (Tr. 30, 302)
Further, in addition to commenting on Gray’s mental limitations, Ms. Coffman addressed Gray’s
physical limitations and, as the ALJ noted, Ms. Coffman has no expertise on which to base her
statements. (Tr. 30, 302) Finally, as previously addressed, the ALJ provided a detailed analysis

15

of the medical record as it related to Gray’s mental impairment and this analysis further supports
the ALJ’s decision to discount the opinions of Ms. Coffman. (Tr. 24, 28-31)
4. Dr. Dunn
Finally, to the extent that Gray asserts that the ALJ inappropriately relied on the opinion
evidence of Dr. Dunn to formulate Gray’s RFC, the Court finds this argument unpersuasive. Dr.
Dunn opined that Gray did not have any restrictions in the activities of daily living, in social
functioning, or in his ability to maintain concentration, persistence, or pace. (Tr. 29, 371) While
the ALJ afforded Dr. Dunn’s opinion “great weight,” the ALJ’s determined RFC clearly limited
Gray beyond that which the opinion of Dr. Dunn would suggest, therefore indicating that the
ALJ took into consideration the medical records and the opinions of Dr. Barbin, Dr. Hill, and
Ms. Coffman in formulating the RFC. Importantly, assigning a medical opinion or other source
opinion “little weight” is not the same as assigning that same opinion “no weight.” Further, as
the Court previously addressed, the ALJ gave good reasons for the weight she afforded these
sources and, as the Court will address, the ALJ properly discounted Gray’s subjective
complaints. Accordingly, the Court finds no merit in Gray’s argument that the ALJ improperly
relied on the opinion evidence of Dr. Dunn.
In sum, the Court finds the ALJ's treatment of the medical opinion evidence is supported
by valid reasons and substantial evidence in the record as a whole.
B. Gray’s Credibility
Gray next argues the ALJ erred in his credibility evaluation and RFC determination by
finding that his activities of daily living were inconsistent with his claims of disability. (Doc. 11
at 20-24) Deference is given to the ALJ’s conclusion with regard to credibility determinations.
Moore v. Astrue, 572 F.3d 520, 524 (8th Cir. 2009).

16

In evaluating a claimant’s credibility, the ALJ should consider the claimant’s daily
activities; the duration, frequency, and intensity of the symptoms; precipitating and aggravating
factors; dosage, effectiveness, and side effects of medication; and functional restrictions. Polaski
v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984). The claimant's relevant work history and the
absence of objective medical evidence to support the complaints may also be considered, and the
ALJ may discount subjective complaints if there are inconsistencies in the record as a whole.
Choate v. Barnhart, 457 F.3d 865, 871 (8th Cir. 2006) (citing Wheeler v. Apfel, 224 F.3d 891,
895 (8th Cir. 2000)). The ALJ must make express credibility determinations and set forth the
inconsistencies which led to his or her conclusions. Id. The Court will uphold an ALJ’s
credibility findings, so long as they are adequately explained and supported. Ellis, 392 F.3d at
996.
The ALJ determined that “the claimant’s statements concerning the intensity, persistence
and limiting effects of these symptoms are not credible to the extent they are inconsistent with
the above residual functional capacity assessment.” (Tr. 27) In so-doing, the ALJ noted that there
were several indications in the record that the claimant’s functional limitations may not be as
severe as alleged. Specifically, the ALJ found, “[a]s discussed above on page four, the claimant
engages in extensive activities, including social activities and activities of daily living, that
require substantial concentration, persistence and pace.” (Id.) On page four of her opinion, the
ALJ details Gray’s activities of daily living, specifically noting that he reported that his daily
activities include “feeding his children, straightening up the house, putting away his kids’ toys,
doing laundry, watching television with his children, and making phone calls to pay bills.” (Tr.
23) Regarding Gray’s social activities, the ALJ found that Gray had no difficulties. (Id.) Gray is
married, has four minor children, and has a friend with whom he visits. (Id.) Gray also has a

17

social network and spends time talking with others on the phone and on the computer. (Id.)
Further, Gray has never been laid off from a job because of problems getting along with other
people. (Id.)
To be sure, there are cases in which a claimant’s ability to engage in certain personal
activities “does not constitute substantial evidence that he or she has the functional capacity to
engage in substantial gainful activity.” Ponder v. Colvin, 770 F.3d 1190, 1195-96 (8th Cir. 2014)
(citing Singh v. Apfel, 222 F.3d 448, 453 (8th Cir. 2000); Kelley v. Callahan, 133 F.3d 583, 589
(8th Cir. 1998)). But that is not the case where, as here, the ALJ relied on more than just Gray’s
daily activity. Specifically, the ALJ also considered the lack of objective evidence to support the
degree of limitation alleged (Tr. 28-30), the effectiveness of Gray’s treatment measures when he
was compliant with treatment (Tr. 28-29; 325), his lack of compliance with recommended
treatment (Tr. 28; 450), and the opinion of Dr. Dunn, a state agency psychologist (Tr. 29; 363373, 457). Because the ALJ's determination not to credit Gray’s subjective complaints is
supported by good reasons and substantial evidence, the Court defers to his determination. Cobb
v. Colvin, 2014 WL 6845850, at *14 (E.D. Mo. Dec. 3, 2014) (internal citations omitted). See
also Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
C. Vocational Expert
Finally, Gray asserts that the ALJ relied on flawed vocational expert testimony. Gray
argues that the ALJ’s RFC was based on improper consideration of the relevant medical opinions
in the record and an incomplete evaluation of Gray’s credibility. Gray additionally asserts that
the ALJ failed to rely on a hypothetical question to the VE that accurately described all the
mental limitations the ALJ conceded were documented by the record. Specifically, Gray argues
that the ALJ found that Gray has moderate difficulties in concentration, persistence, or pace but

18

then only restricted Gray to unskilled work in her RFC determination and in the hypothetical the
ALJ gave to the VE.
“To constitute substantial evidence, a hypothetical must set forth the impairments
accepted as true by the ALJ.” Brachtel v. Apfel, 132 F.3d 417, 421 (8th Cir. 1997). Gray cites to
Newton v. Chater, 92 F.3d 688 (8th Cir. 1996) in support of his assertion that the ALJ must
include Gray’s deficiencies in concentration, persistence, or pace in her hypothetical to the VE.
However, in this case, unlike in Newton, the credible evidence does not show Gray’s
deficiencies in concentration, persistence, or pace to be so limiting. In Newton, the claimant’s
deficiencies in concentration, persistence, and pace included:
moderate deficiencies in his ability to carry out detailed instructions, maintain attention
and concentration for extended periods, perform activities within a schedule, maintain
regular attendance, be punctual within customary tolerances, complete a normal work
week, and perform at a consistent pace without an unreasonable number and length of
rest periods[; and] marked [ ] limit[ations] in his ability to carry out detailed
instructions[.]
(Id. at 695) Here, although the ALJ concluded that, “[w]ith regard to concentration, persistence
or pace, the claimant has moderate difficulties,” in her RFC assessment, the ALJ limited Gray to
the performance of unskilled work. (Tr. 24-25) In so-doing, the ALJ properly afforded little
weight to the opinions of Dr. Barbin, Dr. Hill, and Ms. Coffman, and affording great weight to
the state agency psychologist, Dr. Dunn. (Tr. 29-30) Dr. Dunn concluded that Gray did not have
any limitation in maintaining concentration, persistence or pace. (Tr. 29, 371) As previously
discussed, the ALJ also conducted a full review of the mental impairment medical evidence. (Tr.
24, 28-31) Moreover, the ALJ considered Gray’s subjective complaints, including his alleged
limitations regarding concentration, persistence, and pace, and found them not to be credible.
(Tr. 27)

19

Accordingly, because substantial evidence shows Gray’s limitations in concentration,
persistence, or pace did not impose limitations beyond the performance of unskilled work, the
ALJ did not err in her RFC determination or in her hypothetical to the vocational expert that
included only this relevant limitation
VI.

Conclusion

For the foregoing reasons, the Court finds the ALJ’s decision is supported by substantial
evidence contained in the record as a whole, and, therefore, the Commissioner’s decision should
be affirmed.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and
Plaintiff’s Complaint is DISMISSED with prejudice.
A separate Judgment will accompany this Order.
Dated this 28th day of September, 2015.

JOHN A. ROSS
UNITED STATES DISTRICT JUDGE

20