Blank v. Colvin
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the final decision of the Commissioner is affirmed, and plaintiffs Complaint is dismissed with prejudice. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by Magistrate Judge Nannette A. Baker on 8/14/15. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
No. 4:14-CV-903 NAB
MEMORANDUM AND ORDER
Plaintiff Daniel Blank brings this action under 42 U.S.C. §§ 405(g) and
1383(c)(3) for judicial review of the Commissioner’s final decision denying his
application for disability insurance benefits (DIB) under Title II of the Social
Security Act, 42 U.S.C. §§ 401, et seq., and application for supplemental security
income (SSI) under Title XVI of the Act, 42 U.S.C. §§ 1381, et seq. All matters
are pending before the undersigned United States Magistrate Judge, with consent
of the parties, pursuant to 28 U.S.C. § 636(c). Because the Commissioner’s final
decision is supported by substantial evidence on the record as a whole, it is
I. Procedural History
Plaintiff applied for DIB and SSI on April 11, 2013, claiming that he became
disabled on September 11, 2012, because of bipolar disorder, borderline
personality disorder, attention deficit disorder, and dysthymia. Plaintiff was
twenty-eight years of age when he filed his applications. Upon initial
consideration, the Social Security Administration denied plaintiff’s claims for
benefits. At plaintiff’s request, a hearing was held before an administrative law
judge (ALJ) on December 2, 2013, at which plaintiff and a vocational expert
testified. On January 30, 2014, the ALJ issued a decision denying plaintiff’s
claims for benefits, finding vocational expert testimony to support a finding that
plaintiff could perform work as it exists in significant numbers in the national
economy. (Tr. 8-23.) On March 13, 2014, the Appeals Council denied plaintiff’s
request to review the ALJ’s decision. The ALJ’s decision thus stands as the final
decision of the Commissioner. 42 U.S.C. § 405(g).
In this action for judicial review, plaintiff claims that the ALJ’s decision is
not supported by substantial evidence on the record as a whole, arguing
specifically that the ALJ improperly discredited his subjective complaints and
failed to properly evaluate the opinion of his treating physician, Dr. Arain.
Plaintiff requests that the final decision be reversed and that the matter be
remanded for an award of benefits or for further proceedings.
For the reasons that follow, the ALJ did not err in his decision.
II. Testimonial Evidence Before the ALJ
At the hearing on December 2, 2013, plaintiff testified in response to
questions posed by the ALJ and counsel.
Plaintiff lives in a mobile home with a friend (his former fiancé), her two
children ages six and four, and her mother. (Tr. 43, 46.)
Plaintiff testified that he last worked as a cook at Hardee’s in December
2012. Plaintiff worked for about one month at that job and was fired because he
was not producing fast enough and was occasionally late to work. (Tr. 33-34, 55.)
Earlier in 2012, plaintiff worked as a nurse’s aide. This job ended because plaintiff
missed too many days on account of his depression. Plaintiff also testified that he
was unable to obtain his certification for this job because his mind would go blank
during tests. (Tr. 34, 57.) Plaintiff testified that he also performed temporary parttime work as a general laborer during the previous ten years, which included work
as a forklift driver and warehouse worker, as well as temporary work at Wal-Mart.
(Tr. 34-35.) Plaintiff testified that he worked for three months as a cashier at a gas
station but was fired from this job because he was occasionally late and sometimes
failed to appear for work. (Tr. 53-54.) Plaintiff testified that he was previously in
the military but was “kicked out” because of incidents between him and his
sergeant involving threats made by plaintiff. (Tr. 35-36, 38.) Plaintiff worked as a
correctional officer after leaving the military, but left after one month because of
his anger. (Tr. 53.)
Plaintiff testified that he was treated as a child for bipolar disorder, manic
depression, anger, and anxiety and received treatment until he was seventeen years
old. From 2004 to 2008, plaintiff was in the military and received no medication
for his bipolar disorder. (Tr. 50.) Plaintiff testified that he currently takes
medication for depression, anger, and chemical imbalance but that the medication
does not make him 100 percent better because he gets used to it after which it does
not work as well. Plaintiff’s medications continue to be adjusted. His current
medications include Wellbutrin, BuSpar, and Seroquel. (Tr. 37-39.) Plaintiff
testified that he experiences drowsiness and nausea as side effects of his
medications. (Tr. 65.)
Plaintiff testified that he experiences bouts of depression even though he
takes medication. Once or twice a month he stays in bed for three or four days and
sleeps. The most recent bout occurred the week prior to the hearing during which
time plaintiff stayed in bed for two days and tried to “sleep it away.” (Tr. 38.)
With respect to his anger, plaintiff testified that he gets edgy and takes
things the wrong way, whether it be with people he knows or with strangers at a
grocery store. Being around people bothers him a little. He likes to be alone.
Plaintiff testified that he tries to perform errands quickly or asks his friend to do so,
so that he does not have to. Plaintiff testified that it was his anger that led to his
“Other than Honorable Discharge” from the military in 2008. (Tr. 38, 41, 48-49,
59.) He also had verbal altercations with supervisors at work. (Tr. 56-57.)
Plaintiff testified that he has difficulty with focus and concentration and is
easily sidetracked. Plaintiff had this problem when he worked and got into trouble
because he was told to do numerous things but would forget and repeatedly ask for
guidance. (Tr. 39-40.) Plaintiff also becomes sidetracked with his daily activities
but receives some reminders from his mother and friend, including reminders to
take medication. (Tr. 40-41.)
As to his daily activities, plaintiff testified that he sometimes sleeps and
sometimes plays with his dog. Both plaintiff and his friend take care of the dog.
Plaintiff also plays video games during the day. Plaintiff spends very little time on
the computer, which has no internet access. (Tr. 60-61.) Plaintiff testified that he
sometimes cooks and does the dishes, but his friend does most of the household
chores, including yardwork. (Tr. 43.) Plaintiff testified that he leaves his home
two or three times a month to run errands or to visit his mother whom he sees once
every month or two. Plaintiff does not visit any friends because he has difficulty
making friends and trusting people. Plaintiff does not drive and does not have a
driver’s license. His roommate/friend, mother, and grandmother take him to where
he needs to go. (Tr. 44-45.) Plaintiff testified that he watches his friend’s children
“once in a blue moon” when they are sick. (Tr. 47-48.) Plaintiff does not read.
He watches movies on television “halfway.” Plaintiff testified that he engages in
no outdoor activities other than sitting on the porch. On a rare occasion, he goes
fishing with his mother. (Tr. 62-63.)
Testimony of Vocational Expert
Bob Hammond, a vocational expert, testified at the hearing in response to
questions posed by the ALJ and counsel.
The ALJ asked Mr. Hammond to consider a person twenty-nine years of age
with a high school education and no past relevant work experience. The ALJ
asked Mr. Hammond to assume that the person was able to perform the full range
of exertional work but would need to avoid ladders, ropes, scaffolds, and hazards
such as dangerous machinery and unprotected heights. (Tr. 66-67.) The ALJ
asked Mr. Hammond to further assume that the person could not drive as part of
his work duties and that he
would be able to perform simple and routine tasks but not in a highpace production environment where there were would be strict
production quotas, where the individual would have occasional
interaction with supervisors and co-workers, which I’ll define as
cumulatively, comprising no more than one-third of their workday.
And the hypothetical individual would not be required to
communicate with the general public on behalf of the employer.
(Tr. 67.) Mr. Hammond testified that such a person could perform work as a
washer/cleaner of vehicles and equipment, of which 100,000 such jobs exist
nationally; as an institutional cleaner, of which 105,000 such jobs exist nationally;
and as a cleaner II, of which 116,000 such jobs exist nationally. (Tr. 67-68.)
Counsel then asked Mr. Hammond to consider this person to be further
limited by being absent from the workplace more than two days per month on a
consistent basis, to which Mr. Hammond responded that all employment positions
would be eliminated. Counsel then asked Mr. Hammond to consider that the
person would have difficulty sustaining concentration and would consistently be
off task more than twenty percent of the workday, to which Mr. Hammond
responded that all employment positions would be eliminated. (Tr. 68-69.)
III. Education and Medical Records Before the ALJ
In September 2003, while plaintiff was in the twelfth grade, his
Individualized Education Program underwent review. Testing results showed
plaintiff to be performing at the fifth grade level in math and at the ninth grade
level in reading comprehension. His diagnosis of Emotionally Disturbed was
noted to affect his performance in the classroom. Plaintiff was noted to sleep
excessively during class. Plaintiff had previously obtained a full scale IQ of 90, a
verbal IQ of 88, and a performance IQ of 95 on the WISC-III taken in 1999. It was
noted that plaintiff scored in the 53rd percentile in science on the 2001 MAP test.
For the current school year, it was determined that plaintiff would be placed in the
special education room 900 minutes a week, which represented more than 60% of
the time. (Tr. 326-46.)
Plaintiff underwent a consultative psychological evaluation on September
14, 2012. Dr. David Peaco noted plaintiff to have an eleventh grade education
with a GED. It was noted that plaintiff received special education services for
learning problems and for being “behavior disordered.” Plaintiff reported being
unemployed since June 2012, having been fired from his job at that time for
missing work. Plaintiff reported that he was under a lot of stress at the time
because of the suicide death of his father. Plaintiff reported to Dr. Peaco that he
began receiving mental health treatment when he was six years of age, but has not
sought treatment since 2002 when he stopped taking medication in order to join the
military. Plaintiff reported no history of drug or alcohol abuse and stated that he
currently had about one drink per week. It was noted that plaintiff lost his driver’s
license after a second arrest in 2011 for Driving While Intoxicated (DWI). Mental
status examination showed plaintiff to be casually dressed and to have normal
motor activity. Plaintiff was cooperative and his orientation was intact. Dr. Peaco
noted plaintiff’s flow of thinking to be somewhat unfocused. Plaintiff’s mood was
depressed and his affect was slightly restricted. Plaintiff reported having problems
paying attention. Dr. Peaco noted plaintiff’s delayed memory to be below average
and his working memory to be average. Plaintiff’s fund of general information
was well below average. Dr. Peaco noted the results of plaintiff’s December 1999
IQ testing to place him in the lower portion of average intellectual functioning. Dr.
Peaco also noted that plaintiff’s Freedom from Distractibility Index was 75, which
placed him in the borderline range. Plaintiff reported being depressed at times and
having suicidal thoughts. He also reported having intense anxiety experiences in
his life with chronic, frequent anxiety. Plaintiff reported being somewhat active
with his daily activities in that he cared for his home, worked on his truck, and was
looking for a job. Dr. Peaco noted plaintiff to have a social life with a girlfriend.
Upon conclusion of the evaluation, Dr. Peaco diagnosed plaintiff with generalized
anxiety disorder, adjustment disorder with depressed mood, and disorder of written
expression. Dr. Peaco assigned plaintiff a Global Assessment of Functioning
(GAF) score of 60.1 Dr. Peaco opined that plaintiff was able to understand and
remember simple instructions and was mildly impaired in his persistence in
completing tasks. Dr. Peaco opined that plaintiff’s concentration was moderately
"According to the Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed.
Text Revision 2000) [DSM-IV-TR], the [GAF] is used to report 'the clinician's judgment of the
individual's overall level of functioning,'" Hudson v. Barnhart, 345 F.3d 661, 663 n.2 (8th Cir.
2003), and consists of a number between zero and 100 to reflect that judgment, Hurd v. Astrue,
621 F.3d 734, 737 (8th Cir. 2010). A GAF score between 51 and 60 indicates moderate
symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate
difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or
coworkers). DSM-TR-IV at 34.
impaired. Dr. Peaco further opined that plaintiff’s social functioning was mildly
impaired and that his capacity to cope with and adapt to the world around him was
moderately impaired because of chronic anxiety and periods of depression. (Tr.
Plaintiff underwent a consultative psychological evaluation on October 15,
2012. Plaintiff reported to Karen A. MacDonald, Psy.D., that he had mood swings,
racing thoughts, reactive anger, and insomnia. It was noted that plaintiff had not
taken any medication for ten years. Plaintiff reported having suicidal ideation.
Plaintiff denied having any drug or alcohol problems. Plaintiff’s intermittent job
history was noted, and plaintiff reported that he could not keep a job because of
depression and because he did not care. Plaintiff reported having trouble with his
anger and being argumentative with authority figures. As to his daily activities,
plaintiff reported having obsessive-compulsive traits, including issues with clutter
and with time and needing things in a certain order. Plaintiff reported that he lived
with his girlfriend and that he and his girlfriend share the household chores.
Plaintiff also reported doing community service four hours day, going to his
father’s house to help him, and that he enjoyed fishing with his mother. Mental
status examination showed plaintiff to appear to be experiencing mood swings.
His speech and thought processes were normal. Dr. MacDonald noted plaintiff to
be functioning intellectually in the average to low average range. Plaintiff’s ability
- 10 -
to perform math functions, including complex problems, was intact. His delayed
auditory memory was impaired as well as his ability to recall and follow detailed
instructions. Plaintiff’s ability to recall and follow simple instructions was not
impaired; nor was his attention, calculation, or immediate auditory memory. Pace,
persistence, and abstract motor speed were impaired. Dr. MacDonald noted
plaintiff to score over two standard deviations from the average mean on the minimental status examination. Dr. MacDonald diagnosed plaintiff with bipolar I
disorder, most recent episode mixed; and obsessive-compulsive personality
disorder. She considered plaintiff’s cognitive impairment to be related to
symptoms of bipolar disorder and obsessive-compulsive disorder. Plaintiff was
assigned a GAF score of 50. 2 (Tr. 450-52.)
Plaintiff was admitted to the emergency department at Progress West
Healthcare Center on February 16, 2013, with suicidal ideation after taking
between thirty and fifty 500mg tablets of Naproxen. Plaintiff reported that
everything was happening all at once and that he had been trying to “keep all of
[his] stuff straight.” Plaintiff’s history of depression was noted, as well as a history
of multiple suicide attempts. Plaintiff was currently determined to be at high risk
for suicide, but he reported that he wanted help. (Tr. 390, 394.)
A GAF score between 41 and 50 indicates serious symptoms (e.g., suicidal ideation, severe
obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or
school functioning (e.g., no friends, unable to keep a job). DSM-TR-IV at 34.
- 11 -
After being medically cleared at Progress West, plaintiff was admitted to
Center Pointe Hospital that same date for inpatient treatment. Upon admission,
plaintiff reported having continued suicidal thoughts and that he had homicidal
thoughts toward his sister about one year prior. Plaintiff reported having a primary
care physician but no psychiatrist or therapist. It was noted that plaintiff was not
taking any medications. Plaintiff’s GAF score upon admission was 35. 3 He
participated in individual and group therapy during his admission and was placed
on Lexapro and Seroquel. Plaintiff was discharged on February 20 with a
diagnosis of major depressive disorder and a GAF score of 70.4 He was noted to
be anxious at discharge, but mental status examination was otherwise normal in all
respects. Plaintiff was prescribed Lexapro and Seroquel and was scheduled for
follow up at Crider Center. (Tr. 415-18.)
On March 12, 2013, plaintiff was evaluated at the Crider Center by Dr. M.
Arain, a psychiatrist, for initial assessment regarding medication management.
Plaintiff reported that he suffered from unpleasant feelings, emotions, or sensations
nearly every day and experienced daily back pain. Plaintiff reported having
A GAF score between 31 and 40 indicates some impairment in reality testing or
communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in
several areas, such as work or school, family relations, judgment, thinking, or mood (e.g.,
depressed man avoids friends, neglects family, and is unable to work). DSM-IV-TR at 34.
A GAF score of 61 to 70 indicates some mild symptoms (e.g., depressed mood and mild
insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional
- 12 -
decreased energy level. Plaintiff was noted to be taking Keflex, Seroquel, and
Lexapro, and he reported that his mood and depression were better controlled with
medication. Plaintiff denied any suicidal or homicidal ideations. Plaintiff reported
a history of racing thoughts, decreased sleep, irritability, easy distractibility,
decreased focus, increased energy, and increased spending of money. Plaintiff also
reported a history of anxiety, anger issues, and low self-esteem. Plaintiff reported
three DWI arrests, with his last being in June 2012. Plaintiff reported that he
currently drank alcohol on weekends. Dr. Arain diagnosed plaintiff with bipolar
disorder II, anxiety disorder, history of cannabis and methamphetamine abuse, and
alcohol abuse. A treatment plan was developed for medication management and
psychiatric care, and Seroquel and Lexapro were prescribed. (Tr. 424-32, 438-41.)
Plaintiff returned to Dr. Arain on May 15, 2013, and reported being
depressed and having anger and rage problems. No manic behaviors were
reported, and plaintiff denied any hallucinations, delusions, or paranoid thoughts.
Plaintiff reported being compliant with his medications. Plaintiff reported having
sexual side effects with his medications, but no other side effects were noted. It
was noted that plaintiff had had no alcohol since his last visit. Mental status
examination showed plaintiff’s grooming and eye contact to be fair. His behavior
truancy, or theft within the household), but generally functioning pretty well, has some
meaningful interpersonal relationships.
- 13 -
was noted to be appropriate and cooperative. Plaintiff was oriented times three.
Dr. Arain determined plaintiff’s fund of knowledge to be adequate, and plaintiff’s
attention and concentration were within normal limits. Plaintiff’s speech was
normal in all respects, and his thought process was intact. Plaintiff reported his
mood to be good. His affect was noted to be restricted. Plaintiff’s thought
associations were within normal limits, and he had no suicidal or homicidal
ideations. Plaintiff’s judgment and insight were noted to be fair. Dr. Arain
continued plaintiff in his diagnoses of bipolar disorder II, anxiety disorder, alcohol
abuse, and borderline personality disorder. Dr. Arain recommended that plaintiff
participate in individual counseling. Plaintiff was instructed to discontinue
Lexapro, and Wellbutrin and Seroquel were prescribed. (Tr. 433-37.)
On July 24, 2013, Stanley Hutson, Ph.D., a psychological consultant with
disability determinations, completed a Psychiatric Review Technique Form in
which he opined that plaintiff’s affective disorder, personality disorder, alcohol
and substance addiction disorder, and anxiety disorder caused mild restriction in
activities of daily living and moderate difficulties in maintaining social functioning
and in maintaining concentration, persistence, or pace. Dr. Hutson found there to
be insufficient evidence to determine whether plaintiff experienced repeated
episodes of decompensation of extended duration. (Tr. 80-82.) In a Mental
Residual Functional Capacity (RFC) Assessment completed that same date, Dr.
- 14 -
Hutson opined that plaintiff had no limitations with understanding and memory but
experienced moderate limitations in his ability to carry out detailed instructions, to
maintain attention and concentration for extended periods, and to work in
coordination with or in proximity to others without being distracted by them. Dr.
Hutson further opined that plaintiff experienced social limitations in that he was
moderately limited in his ability 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. With respect to adaptation, Dr.
Hutson opined that plaintiff was moderately limited in his ability to respond
appropriately to changes in the work setting but otherwise was not significantly
limited. Dr. Hutson concluded that plaintiff had the ability to understand and
follow instructions, could make work decisions and complete routine tasks,
appeared capable of adapting to a work setting, and would benefit from limited
social interaction in the work setting. (Tr. 83-84.)
On August 5, 2013, plaintiff reported to Dr. Arain that he continued to feel
depressed, had racing thoughts, and was distracted. Plaintiff reported sleeping
well. Plaintiff reported that he was compliant with his medication and had no side
effects. Mental status examination showed plaintiff to be oriented times three. He
had fair grooming and eye contact, and his behavior was appropriate and
cooperative. Plaintiff reported his mood to be “steady,” and Dr. Arain noted
- 15 -
plaintiff to have a full affect. Plaintiff’s attention and concentration were within
normal limits, and his thought processes and associations were normal and intact.
Plaintiff had no suicidal or homicidal ideation. Plaintiff’s judgment and insight
were noted to be fair. Plaintiff was continued in his diagnoses and was prescribed
Wellbutrin, BuSpar, and Seroquel. (Tr. 455-60.)
In a letter addressed To Whom It May Concern dated November 11, 2013,
Dr. Arain reported that plaintiff’s psychiatric symptoms were in partial remission
with medication. Dr. Arain further wrote:
He has a history of anxiety and depression that caused repeated
episodes of decompensation and difficulties in maintaining social
functioning. He may have difficulty working full-time job on a
sustained basis, deal with work related stress, behave in emotionally
stable manner, and demonstrate reliability. His impairment may cause
him to be absent from work.
(Tr. 447.) Dr. Arain also wrote that he would recommend vocational rehabilitation
and opined that plaintiff may benefit from individual counseling to develop coping
IV. The ALJ's Decision
The ALJ found that plaintiff met the insured status requirements of the
Social Security Act through September 30, 2017, and had not engaged in
substantial gainful activity since September 11, 2012, the alleged onset date of
disability. The ALJ found plaintiff’s major depressive disorder, anxiety disorder,
- 16 -
substance addiction disorder, and personality disorder to be severe impairments,
but that plaintiff did not have an impairment or combination of impairments that
met or medically equaled an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Tr. 13-14.)
The ALJ determined that plaintiff had the RFC to perform the full range of
work at all exertional levels but with the following non-exertional limitations:
he cannot climb ladders, ropes, or scaffolds; he cannot have exposure
to workplace hazards such as dangerous machinery or unprotected
heights; he cannot drive as a part of his work duties; he can perform
simple and routine tasks, but not in a high pace production
environment; he cannot perform with strict production quotas; he can
occasionally interact with supervisors and co-workers cumulatively no
more than 1/3 of workday; and, he cannot be required to communicate
with the general public on behalf of employer.
(Tr. 15.) The ALJ found plaintiff not to have any past relevant work. Considering
plaintiff’s age, education, work experience, and RFC, the ALJ determined
vocational expert testimony to support a finding that plaintiff could perform other
work as it exists in significant numbers in the national economy, and specifically,
washer, institutional cleaner, and cleaner II. The ALJ thus found plaintiff not to be
under a disability at any time from September 11, 2012, through the date of the
decision. (Tr. 21-22.)
- 17 -
To be eligible for DIB and SSI under the Social Security Act, plaintiff must
prove that he is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.
2001); Baker v. Secretary of Health & Human Servs., 955 F.2d 552, 555 (8th Cir.
1992). The Social Security Act defines disability as the "inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months." 42
U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). An individual will be declared disabled
"only if his physical or mental impairment or impairments are of such severity that
he 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." 42 U.S.C. §§ 423(d)(2)(A),
To determine whether a claimant is disabled, the Commissioner engages in a
five-step evaluation process. See 20 C.F.R. §§ 404.1520, 416.920; Bowen v.
Yuckert, 482 U.S. 137, 140-42 (1987). The Commissioner begins by deciding
whether the claimant is engaged in substantial gainful activity. If the claimant is
working, disability benefits are denied. Next, the Commissioner decides whether
- 18 -
the claimant has a “severe” impairment or combination of impairments, meaning
that which significantly limits his ability to do basic work activities. If the
claimant's impairment(s) is not severe, then he is not disabled. The Commissioner
then determines whether claimant's impairment(s) meets or equals one of the
impairments listed in 20 C.F.R., Subpart P, Appendix 1. If claimant's
impairment(s) is equivalent to one of the listed impairments, he is conclusively
disabled. At the fourth step, the Commissioner establishes whether the claimant
can perform his past relevant work. If so, the claimant is not disabled. Finally, the
Commissioner evaluates various factors to determine whether the claimant is
capable of performing any other work in the economy. If not, the claimant is
declared disabled and becomes entitled to disability benefits.
The decision of the Commissioner must be affirmed if it is supported by
substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v.
Perales, 402 U.S. 389, 401 (1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir.
2002). Substantial evidence is less than a preponderance but enough that a
reasonable person would find it adequate to support the conclusion. Johnson v.
Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). This “substantial evidence test,”
however, is “more than a mere search of the record for evidence supporting the
Commissioner’s findings.” Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007)
(internal quotation marks and citation omitted). “Substantial evidence on the
- 19 -
record as a whole . . . requires a more scrutinizing analysis.” Id. (internal quotation
marks and citations omitted).
To determine whether the Commissioner's decision is supported by
substantial evidence on the record as a whole, the Court must review the entire
administrative record and consider:
The credibility findings made by the ALJ.
The plaintiff's vocational factors.
The medical evidence from treating and consulting physicians.
The plaintiff's subjective complaints relating to exertional and
non-exertional activities and impairments.
Any corroboration by third parties of the plaintiff's
The testimony of vocational experts when required which is
based upon a proper hypothetical question which sets forth the
Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir.
1992) (internal citations omitted). The Court must also consider any evidence
which fairly detracts from the Commissioner’s decision. Coleman, 498 F.3d at
770; Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999). “If, after reviewing
the entire record, it is possible to draw two inconsistent positions, and the
Commissioner has adopted one of those positions,” the Commissioner’s decision
must be affirmed. Anderson v. Astrue, 696 F.3d 790, 793 (8th Cir. 2012). The
- 20 -
decision may not be reversed merely because substantial evidence could also
support a contrary outcome. Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).
Plaintiff claims that the ALJ’s decision is not based upon substantial
evidence on the record as a whole inasmuch as he improperly discredited
plaintiff’s subjective complaints of disabling symptoms and erred in his
determination to accord little weight to the opinion of his treating psychiatrist, Dr.
Arain. For the following reasons, the ALJ did not err.
When evaluating a claimant’s credibility, the ALJ must consider all
evidence relating to the claimant’s complaints, including the claimant’s prior work
record and third party observations as to the claimant's daily activities; the
duration, frequency and intensity of the symptoms; any precipitating and
aggravating factors; the dosage, effectiveness and side effects of medication; and
any functional restrictions. Halverson v. Astrue, 600 F.3d 922, 931 (8th Cir.
2010); Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984) (subsequent history
omitted). While an ALJ need not explicitly discuss each Polaski factor in his
decision, he nevertheless must acknowledge and consider these factors before
discounting a claimant’s subjective complaints. Wildman v. Astrue, 596 F.3d 959,
968 (8th Cir. 2010).
When, as here, a claimant contends on judicial review that the ALJ failed to
- 21 -
properly consider his subjective complaints, the Court’s duty is to ascertain
whether the ALJ considered all of the evidence relevant to the claimant’s
complaints under the Polaski standards and whether the evidence so contradicts his
subjective complaints that the ALJ could discount his testimony as not credible.
Masterson v. Barnhart, 363 F.3d 731, 738-39 (8th Cir. 2004). It is not enough that
the record merely contain inconsistencies. Instead, the ALJ must specifically
demonstrate in his decision that he considered all of the evidence. Id. at 738; see
also Cline v. Sullivan, 939 F.2d 560, 565 (8th Cir. 1991). Where an ALJ considers
the Polaski factors and explicitly discredits a claimant’s complaints for good
reason, the Court should defer to that decision. Halverson, 600 F.3d at 932. The
determination of a claimant’s credibility is for the Commissioner, and not the
Court, to make. Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005); Pearsall,
274 F.3d at 1218.
Here, the ALJ acknowledged the required factors and considered plaintiff’s
credibility based upon the record as a whole. The ALJ thoroughly discussed the
evidence of record, identified inconsistencies relating to the Polaski factors, and
found plaintiff’s complaints not to be entirely credible. Because this determination
is supported by good reasons and substantial evidence, the Court defers to this
First, the ALJ noted the objective medical evidence to show that plaintiff
- 22 -
exhibited behavioral impairments during consultative examinations in September
and October 2012 and was admitted for inpatient care in February 2013. The ALJ
noted, however, that prior to this February 2013 hospitalization, plaintiff did not
receive any mental health treatment and indeed reported that he had not seen a
doctor in ten years. Cf. Brace v. Astrue, 578 F.3d 882, 886 (8th Cir. 2009) (no
error in discrediting claim of disabling symptoms when record showed claimant
not to be taking medication during period when symptoms were assessed). The
record shows that plaintiff’s conditions improved once he began receiving regular
treatment, and indeed that plaintiff acknowledged that medication helped his
symptoms with no reported adverse side effects. See Ellis v. Barnhart, 392 F.3d
988, 996 (8th Cir. 2005) (medication alleviated symptoms with no record of
adverse side effects); Roth v. Shalala, 45 F.3d 279, 282 (8th Cir. 1995)
(impairments that are controllable or amenable to treatment do not support a
finding of disability).
The ALJ also noted the level of plaintiff’s daily activities to be inconsistent
with his subjective complaints of disabling symptoms. The ALJ specifically noted
plaintiff’s report that he cared for his friend’s children and shared household
chores as well as record evidence that showed him to have worked part-time,
performed community service, often visited his father to help him, and regularly
interacted with his mother which included going fishing. Plaintiff also reported in
- 23 -
his Function Report that he prepared meals, had no problems with personal care,
watched television with his friend, cared for multiple pets, went to the grocery
store once a week for about forty minutes, and could go out alone. (Tr. 285-88.)
Such a fairly normal routine is inconsistent with complaints of disabling cognitive
and mental symptoms. See Dipple v. Astrue, 601 F.3d 833, 837 (8th Cir. 2010)
(accomplishing basic household tasks, working on computer, and successful
interaction with family members); Halverson, 600 F.3d at 932 (caring for personal
needs and grooming, caring for pet, preparing meals, performing household chores,
driving a car, running errands, going shopping, and watching television). See also
Comstock v. Chater, 91 F.3d 1143, 1147 (8th Cir. 1996) (daily activities, which
included work activity, inconsistent with disabling complaints).
Plaintiff contends that the ALJ failed to consider the extent to which he
performed these daily activities, arguing that his testimony at the administrative
hearing provided context to the other evidence of record. An ALJ must assess a
claimant’s credibility based upon a review of the record a whole. Where such
review shows the claimant not to be as limited as his testimony would suggest, the
ALJ does not err in discrediting the testimony. See Jones v. Astrue, 619 F.3d 963,
975 (8th Cir. 2010). A review of the ALJ’s decision here shows that he considered
the entirety of the record, including testimony and reports obtained from plaintiff
- 24 -
and third parties, 5 and identified numerous inconsistencies with respect to
plaintiff’s performance of daily activities showing that the claimed disabling
symptoms were not as severe as alleged. Substantial evidence supports the ALJ’s
conclusions regarding plaintiff’s daily activities, and the undersigned defers to
Nor does the ALJ’s consideration of part-time work activity render his
credibility determination flawed. Contrary to plaintiff’s assertion, the ALJ did not
consider such work activity as evidence that plaintiff is able to perform substantial
gainful activity or that he maintains an ability to work. Instead, the ALJ
considered this activity in determining the strength of plaintiff’s credibility, finding
it to be inconsistent with plaintiff’s complaints of disabling symptoms. An ALJ is
permitted to consider work activity in this context. See Goff, 421 F.3d at 792.
Accordingly, in a manner consistent with and as required by Polaski, the
ALJ considered plaintiff’s subjective complaints on the basis of the entire record
and set out numerous inconsistencies that detracted from his credibility. Because
the ALJ’s determination not to credit plaintiff’s subjective complaints is supported
Although plaintiff claims that the ALJ failed to consider the statements made in his mother’s
Third Party Function Report that were consistent with his claims of limited daily activities, the
undersigned notes that the ALJ addressed this report and noted that plaintiff reportedly spoke
with his mother every day, went fishing with his mother once a month, had cookouts, performed
all of his daily and weekly chores, and worked. For the reasons stated above, this third-party
report of plaintiff’s activities support the ALJ’s finding that plaintiff’s daily activities are
inconsistent with his claim of disabling symptoms. See Ostronski v. Chater, 94 F.3d 413, 419
- 25 -
by good reasons and substantial evidence, the Court defers to this determination.
McDade v. Astrue, 720 F.3d 994, 998 (8th Cir. 2013); Renstrom v. Astrue, 680
F.3d 1057, 1065 (8th Cir. 2012).
Upon concluding that plaintiff’s subjective complaints were not entirely
credible, the ALJ turned to the medical opinion evidence of record, including the
opinions expressed in Dr. Arain’s November 2013 letter. The ALJ accorded Dr.
Arain’s opinions little weight, finding that they were inconsistent with other
evidence of record and failed to specify any functional limitations. For the
following reasons, the ALJ’s determination to accord little weight to Dr. Arain’s
opinion evidence is supported by substantial evidence on the record, and the ALJ
did not err in this determination.
When evaluating opinion evidence, an ALJ is required to explain in his
decision the weight given to any opinions from treating sources, non-treating
sources, and non-examining sources. See 20 C.F.R. §§ 404.1527(e)(2)(ii),
416.927(e)(2)(ii). The Regulations require that more weight be given to the
opinions of treating physicians than other sources. 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2). A treating physician's assessment of the nature and severity of a
claimant's impairments should be given controlling weight if the opinion is well
(8th Cir. 1996).
- 26 -
supported by medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with other substantial evidence in the record. Id.; see also
Forehand v. Barnhart, 364 F.3d 984, 986 (8th Cir. 2004). This is so because a
treating physician has the best opportunity to observe and evaluate a claimant's
since these sources are likely to be the medical professionals most
able to provide a detailed, longitudinal picture of [a claimant's]
medical impairment(s) and may bring a unique perspective to the
medical evidence that cannot be obtained from the objective medical
findings alone or from reports of individual examinations, such as
consultative examinations or brief hospitalizations.
20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
When a treating physician's opinion is not given controlling weight, the
Commissioner must look to various factors in determining what weight to accord
the opinion, including the length of the treatment relationship and the frequency of
examination, the nature and extent of the treatment relationship, whether the
treating physician provides support for his findings, whether other evidence in the
record is consistent with the treating physician's findings, and the treating
physician's area of specialty. 20 C.F.R. §§ 404.1527(c), 416.927(c). The
Commissioner “will always give good reasons in [the] notice of determination or
decision for the weight [given to the] treating source's opinion.” Id. Inconsistency
with other substantial evidence alone is a sufficient basis upon which an ALJ may
- 27 -
discount a treating physician’s opinion. Goff v. Barnhart, 421 F.3d 785, 790-91
(8th Cir. 2005).
Here, the ALJ properly discounted Dr. Arain’s opinions inasmuch as they
were inconsistent with other substantial evidence of record. The ALJ specifically
noted that although Dr. Arain opined that plaintiff may have difficulty working full
time, dealing with work-related stress, demonstrating reliability, and behaving in
an emotionally stable manner, the record showed multiple relatively normal mental
status examinations. Indeed, a review of the record shows that once plaintiff began
receiving regular mental health treatment, his mental status examinations
repeatedly showed appropriate and cooperative behavior, normal attention and
concentration, normal thought processes and associations, and fair insight and
judgment. Where a claimant’s medical record repeatedly documents normal
mental status examinations showing no abnormalities, an ALJ does not err in
discounting as inconsistent a treating physician’s opinion that the claimant is
unable to maintain employment. See Halverson, 600 F.3d at 929-30.
In addition, the ALJ noted that Dr. Arain described no specific functional
limitations but instead generally stated that plaintiff should be referred to
vocational rehabilitation. Where a treating source provides little or no explanation
for opined limitations, an ALJ does not err in according little weight to that
source’s opinions. 20 C.F.R. §§ 404.1527(c)(3), 416.927(c)(3).
- 28 -
For the reasons set out above on the claims raised by plaintiff on this appeal,
the ALJ’s determination that plaintiff was not disabled through the date of his
decision is supported by substantial evidence on the record as a whole, and
plaintiff’s claims of error are denied.
IT IS HEREBY ORDERED that the final decision of the Commissioner is
affirmed, and plaintiff’s Complaint is dismissed with prejudice.
A separate Judgment in accordance with this Memorandum and Order is
entered this same date.
Dated this 14th day of August, 2015.
/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
- 29 -
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?