Miles v. Colvin
MEMORANDUM AND ORDER:IT IS HEREBY ORDERED that the relief sought by Plaintiff in his Complaint and Brief in Support of Complaint is DENIED; Docs. 1, 17. Dated this 28th day of September 2015. Signed by Magistrate Judge Noelle C. Collins on 09/28/2015. (KCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,)
Case No. 4:14CV954NCC
MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the
final decision of the Commissioner denying the application of Edward Miles
(Plaintiff) for Supplemental Security Income (SSI), under Title XVI of the Social
Security Act, 42 U.S.C. §§ 1381 et seq. Plaintiff has filed a brief in support of the
Complaint. (Doc. 17). Defendant has filed a brief in support of the Answer. (Doc.
23). The parties have consented to the jurisdiction of the undersigned United
States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c). (Doc. 13).
On September 8, 2009, Plaintiff filed an application for SSI.1 (Tr. 99-101).
After his claim was denied initially and by an Administrative Law Judge (ALJ),
and the denial was affirmed by the Appeals Council, Plaintiff filed a Complaint in
the United States District Court for the Eastern District of Missouri. (Tr. 1-3, 8-16,
46). By decision, dated September 20, 2013, the District Court remanded the
matter to the Commissioner, with instructions to more fully evaluate Plaintiff’s
credibility. (Tr. 402-404). On November 5, 2013, the Appeals Council vacated
the final decision of the Commissioner and remanded the case to an ALJ for
further proceedings. (Tr. 405-407). Following a second hearing, held on March
12, 2014, an ALJ denied Plaintiff’s application. (Tr. 324-42, 349-71). As such,
the ALJ’s decision stands as the final decision of the Commissioner.
Plaintiff also filed applications for Disability Insurance Benefits (DIB) under
Title II of the Social Security Act (the Act), 42 U.S.C. §§ 401 et seq., in September
2009, January 2009, October 2006, and June 2004, which applications were denied
because Plaintiff did not meet the insured status requirements of Title II on or after
his alleged onset dates. (Tr. 102). He additionally filed a Title II application, in
February 2002, which was denied initially and not pursued further. (Tr. 102).
Further, Plaintiff filed numerous Title XVI applications, in addition to the
application which is the subject of the instant matter. Plaintiff’s other Title XVI
applications were all denied initially. (Tr. 103). Those claims were not reopened,
and the ALJ considered Plaintiff’s claim as beginning September 8, 2009, the
protective filing date of the application under review. (Tr. 342). Plaintiff does not
take issue with the ALJ’s doing so. (Doc. 17).
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,
404.1529. “‘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)). In this sequential analysis, the
claimant first cannot be engaged in “substantial gainful activity” to qualify for
disability benefits. 20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant
must have a severe impairment. 20 C.F.R. §§ 416.920(c), 404.1520(c). The Social
Security Act defines “severe impairment” as “any impairment or combination of
impairments which significantly limits [claimant’s] physical or mental ability to do
basic work activities.” Id. “The sequential evaluation 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) (citing Nguyen v. Chater, 75 F.3d 429, 430-31
(8th Cir. 1996)).
Third, the ALJ must determine whether the claimant has an impairment
which meets or equals one of the impairments listed in the Regulations. 20 C.F.R.
§§ 416.920(d), 404.1520(d); pt. 404, subpt. P, app. 1. 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. See id.
Fourth, the impairment must prevent the claimant from doing past relevant
work. 20 C.F.R. §§ 416.920(f), 404.1520(f). The burden rests with the claimant at
this fourth step to establish his or her Residual Functional Capacity (RFC). See
Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008) (“Through step four of this
analysis, the claimant has the burden of showing that she is disabled.”);
Eichelberger, 390 F.3d at 590-91; Masterson v. Barnhart, 363 F.3d 731, 737 (8th
Cir. 2004); Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). The ALJ
will review a claimant’s RFC and the physical and mental demands of the work the
claimant has done in the past. 20 C.F.R. § 404.1520(f).
Fifth, the severe impairment must prevent the claimant from doing any other
work. 20 C.F.R. §§ 416.920(g), 404.1520(g). At this fifth step of the sequential
analysis, the Commissioner has the burden of production to show evidence of other
jobs in the national economy that can be performed by a person with the claimant’s
RFC. See Steed, 524 F.3d at 874 n.3; Young, 221 F.3d at 1069 n.5. If the
claimant meets these standards, the ALJ will find the claimant to be disabled.
“The ultimate burden of persuasion to prove disability, however, remains with the
claimant.” Id. See also Harris v. Barnhart, 356 F.3d 926, 931 n.2 (8th Cir. 2004)
(citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)); 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.”); Charles v. Barnhart, 375 F.3d 777, 782
n.5 (8th Cir. 2004) (“[T]he burden of production shifts to the Commissioner at step
five to submit evidence of other work in the national economy that [the claimant]
could perform, given her RFC.”).
Even if a court finds that there is a
preponderance of the evidence against the ALJ’s decision, the decision must be
affirmed if it is supported by substantial evidence. See Clark v. Heckler, 733 F.2d
65, 68 (8th Cir. 1984). “Substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to support the
Commissioner’s conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th
Cir. 2002). See also Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007). In Bland v.
Bowen, 861 F.2d 533, 535 (8th Cir. 1988), the Eighth Circuit Court of Appeals
The concept of substantial evidence is something less than the weight
of the evidence and it allows for the possibility of drawing two
inconsistent conclusions, thus it embodies a zone of choice within
which the Secretary may decide to grant or deny benefits without
being subject to reversal on appeal.
See also Lacroix v. Barnhart, 465 F.3d 881, 885 (8th Cir. 2006) (“[W]e may not
reverse merely because substantial evidence exists for the opposite decision.”)
(quoting Johnson v. Chater, 87 F.3d 1015, 1017 (8th Cir. 1996)); Hartfield v.
Barnhart, 384 F.3d 986, 988 (8th Cir. 2004) (“[R]eview of the Commissioner’s
final decision is deferential.”).
It is not the job of the district court to re-weigh the evidence or review the
factual record de novo. See Cox, 495 F.3d at 617; Guilliams v. Barnhart, 393 F.3d
798, 801 (8th Cir. 2005); McClees v. Shalala, 2 F.3d 301, 302 (8th Cir. 1993);
Murphy v. Sullivan, 953 F.2d 383, 384 (8th Cir. 1992). Instead, the district court
must simply determine whether the quantity and quality of evidence is enough so
that a reasonable mind might find it adequate to support the ALJ’s conclusion. See
Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing McKinney v. Apfel, 228
F.3d 860, 863 (8th Cir. 2000)). Weighing the evidence is a function of the ALJ,
who is the fact-finder. See Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir. 1987).
See also Onstead v. Sullivan, 962 F.2d 803, 804 (8th Cir. 1992) (holding that an
ALJ’s decision is conclusive upon a reviewing court if it is supported by
“substantial evidence”). Thus, an administrative decision which is supported by
substantial evidence is not subject to reversal merely because substantial evidence
may also support an opposite conclusion or because the reviewing court would
have decided differently.
See Krogmeier, 294 F.3d at 1022.
Eichelberger, 390 F.3d at 589; Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000)
(quoting Terrell v. Apfel, 147 F.3d 659, 661 (8th Cir. 1998)); Hutsell v. Massanari,
259 F.3d 707, 711 (8th Cir. 2001).
To determine whether the Commissioner’s final decision is supported by
substantial evidence, the court is required to review the administrative record as a
whole and to consider:
(1) 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;
(6) The testimony of vocational experts based upon proper hypothetical
questions which fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dep’t of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir.
1980); Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989).
Additionally, an ALJ’s decision must comply “with the relevant legal
requirements.” Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008).
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 has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
416(i)(1)(A); 42 U.S.C. § 423(d)(1)(A). “While the claimant has the burden of
proving that the disability results from a medically determinable physical or mental
impairment, direct medical evidence of the cause and effect relationship between
the impairment and the degree of claimant’s subjective complaints need not be
produced.” Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). When
evaluating evidence of pain, the ALJ must consider:
(1) the claimant’s daily activities;
(2) the subjective evidence of the duration, frequency, and intensity of the
(3) any precipitating or aggravating factors;
(4) the dosage, effectiveness, and side effects of any medication; and
(5) the claimant’s functional restrictions.
Baker v. Sec’y of Health & Human Servs., 955 F.2d. 552, 555 (8th Cir. 1992);
Polaski, 739 F.2d at 1322.
The absence of objective medical evidence is just one factor to be
considered in evaluating the plaintiff’s credibility. See id. The ALJ must also
consider the plaintiff’s prior work record, observations by third parties and treating
and examining doctors, as well as the plaintiff’s appearance and demeanor at the
hearing. See Polaski, 739 F.2d at 1322; Cruse, 867 F.2d at 1186.
The ALJ must make express credibility determinations and set forth the
inconsistencies in the record which cause him or her to reject the plaintiff’s
complaints. See Guilliams, 393 F.3d at 801; Masterson, 363 F.3d at 738; Lewis v.
Barnhart, 353 F.3d 642, 647 (8th Cir. 2003); Hall v. Chater, 62 F.3d 220, 223 (8th
Cir. 1995). It is not enough that the record contains inconsistencies; the ALJ must
specifically demonstrate that he or she considered all of the evidence. Robinson v.
Sullivan, 956 F.2d 836, 841 (8th Cir. 1992); Butler v. Sec’y of Health & Human
Servs., 850 F.2d 425, 429 (8th Cir. 1988). The ALJ, however, “need not explicitly
discuss each Polaski factor.” Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir.
2004). See also Steed, 524 F.3d at 876 (citing Lowe v. Apfel, 226 F.3d 969, 972
(8th Cir. 2000)). The ALJ need only acknowledge and consider those factors. See
id. Although credibility determinations are primarily for the ALJ and not the court,
the ALJ’s credibility assessment must be based on substantial evidence.
Rautio v. Bowen, 862 F.2d 176, 179 (8th Cir. 1988); Millbrook v. Heckler, 780
F.2d 1371, 1374 (8th Cir. 1985).
RFC is defined as what the claimant can do despite his or her limitations, 20
C.F.R. § 404.1545(a)(1), and includes an assessment of physical abilities and
mental impairments. 20 C.F.R. § 404.1545(b)-(e). The Commissioner must show
that a claimant who cannot perform his or her past relevant work can perform other
work which exists in the national economy. See Karlix v. Barnhart, 457 F.3d 742,
746 (8th Cir. 2006); Nevland, 204 F.3d at 857 (citing McCoy v. Schweiker, 683
F.2d 1138, 1146-47 (8th Cir. 1982) (en banc)). The Commissioner must first prove
that the claimant retains the RFC to perform other kinds of work. See Goff, 421
F.3d at 790; Nevland, 204 F.3d at 857. The Commissioner has to prove this by
substantial evidence. Warner v. Heckler, 722 F.2d 428, 431 (8th Cir. 1983).
Second, once the plaintiff’s capabilities are established, the Commissioner has the
burden of demonstrating that there are jobs available in the national economy that
can realistically be performed by someone with the plaintiff’s qualifications and
capabilities. See Goff, 421 F.3d at 790; Nevland, 204 F.3d at 857.
To satisfy the Commissioner’s burden, the testimony of a vocational expert
(VE) may be used. An ALJ posing a hypothetical to a VE is not required to
include all of a plaintiff’s limitations, but only those which the ALJ finds credible.
See Goff, 421 F.3d at 794 (“[T]he ALJ properly included only those limitations
supported by the record as a whole in the hypothetical.”); Rautio, 862 F.2d at 180.
Use of the Medical-Vocational Guidelines is appropriate if the ALJ discredits the
plaintiff’s subjective complaints of pain for legally sufficient reasons. See Baker
v. Barnhart, 457 F.3d 882, 894-95 (8th Cir. 2006); Carlock v. Sullivan, 902 F.2d
1341, 1343 (8th Cir. 1990); Hutsell v. Sullivan, 892 F.2d 747, 750 (8th Cir. 1989).
The issue before the court is whether substantial evidence supports the
Commissioner’s final determination that Plaintiff was not disabled. See Onstead,
962 F.2d at 804. Thus, even if there is substantial evidence that would support a
decision opposite to that of the Commissioner, the court must affirm her decision
as long as there is substantial evidence in favor of the Commissioner’s position.
See Cox, 495 F.3d at 617; Krogmeier, 294 F.3d at 1022.
Plaintiff was born in 1957, was fifty-two years old at the time he applied for
benefits, and was fifty-six at the time of the second hearing. He completed high
school and one year of college. (Tr. 46, 142, 354). Plaintiff testified that he had
not worked at all since September 2009 and that he could not work because he
“could not function right” and because his “mind [went] blank a lot” due to
paranoia and depression. (Tr. 22-23, 355).
The ALJ found Plaintiff had not engaged in substantial gainful activity since
September 8, 2009, his application date; Plaintiff had the severe impairments of
substance abuse, schizoaffective disorder, hypertension, and degenerative disc
disease of the cervical spine; and Plaintiff did not have an impairment or
combination of impairments that met or medically equaled a listed impairment.
The ALJ found Plaintiff had the RFC to perform medium work,2 except that:
Plaintiff was limited to simple, routine, and repetitive tasks; he was unable to
perform tasks requiring more than superficial interaction with the public or
coworkers; he was unable to deal with more than occasional change in the routine
work setting; he was unable to tolerate concentrated exposure to temperature
extremes, humidity, strong odors, fumes, dust, chemicals, or other respiratory
irritants; and he was unable to tolerate hazards such as unprotected heights or
dangerous moving machinery. The ALJ noted that the VE testified that there was
work in the national economy which a person of Plaintiff’s age and with his
education, work history, and RFC could perform. After independently considering
jobs described in the Dictionary of Occupational Titles (DOT), the ALJ found that
there was work which Plaintiff could perform, and that, therefore, he was not
disabled. (Tr. 324-42).
Plaintiff contends that the ALJ’s decision is not supported by substantial
evidence because: The ALJ failed to point to “some” medical evidence to support
his RFC determination; he “discarded all the medical opinion evidence relevant to
Plaintiff’s mental health functioning; the ALJ failed to “reconcile [his] opinion
with [his] stated observation of medical fact from” Plaintiff’s treating physicians;
20 CFR § 416.967(c) defines medium work as “lifting no more than 50 pounds at
a time with frequent lifting or carrying of objects weighing up to 25 pounds. If
someone can do medium work, we determine that he or she can also do sedentary
and light work.”
the ALJ stated legally insufficient reasons for discounting the opinion of Rolando
Larice, M.D., whom Plaintiff saw at the Hopewell Center and the opinion of Leepi
Khatiwada, a social worker at the Hopewell Center; the ALJ gave insufficient
reasons for discounting the opinion of Robert Cottone, M.D.; the ALJ gave
insufficient rational for discounting third party testimony; the ALJ gave improper
weight to Plaintiff’s Global Assessment of Functioning (GAF) scores; the ALJ’s
credibility determination was flawed; and the hypothetical which the ALJ posed to
the VE failed to capture the concrete consequences of Plaintiff’s mental health
impairment. For the following reasons, the court finds that Plaintiff’s arguments
are without merit and that the ALJ’s determination that Plaintiff is not disabled is
based on substantial evidence and is consistent with the Regulations and case law.
The court will first consider the ALJ’s credibility determination and factors
relevant to the ALJ’s credibility determination. See Wildman v. Astrue, 596 F.3d
959, 969 (8th Cir. 2010) (A[The plaintiff] fails to recognize that the ALJ's
determination regarding her RFC was influenced by his determination that her
allegations were not credible.@) (citing Tellez v. Barnhart, 403 F.3d 953, 957 (8th
Cir. 2005)); 20 C.F.R. §§ 404.1545, 416.945 (2010). As set forth more fully
above, the ALJ=s credibility findings should be affirmed if they are supported by
substantial evidence on the record as a whole; a court cannot substitute its
judgment for that of the ALJ. See Guilliams v. Barnhart, 393 F.3d 798, 801 (8th
Cir. 2005); Hutsell, 892 F.2d at 750; Benskin, 830 F.2d at 882.
To the extent that the ALJ did not specifically cite Polaski, other case law,
and/or Regulations relevant to a consideration of Plaintiff=s credibility, this is not
necessarily a basis to set aside an ALJ=s decision where the decision is supported
by substantial evidence. Randolph v. Barnhart, 386 F.3d 835, 842 (8th Cir. 2004);
Wheeler v. Apfel, 224 F.3d 891, 895 n.3 (8th Cir. 2000); Reynolds v. Chater, 82
F.3d 254, 258 (8th Cir. 1996); Montgomery v. Chater, 69 F.3d 273, 275 (8th Cir.
1995). Additionally, an ALJ need not methodically discuss each Polaski factor if
the factors are acknowledged and examined prior to making a credibility
determination; where adequately explained and supported, credibility findings are
for the ALJ to make. See Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000). See
also Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir. 2004) (AThe ALJ is not
required to discuss each Polaski factor as long as the analytical framework is
recognized and considered.@); Strongson, 361 F.3d at 1072; Brown v. Chater, 87
F.3d 963, 966 (8th Cir. 1996).
In any case, A[t]he credibility of a claimant=s subjective testimony is
primarily for the ALJ to decide, not the courts.@ Pearsall v. Massanari, 274 F.3d
1211, 1218 (8th Cir. 2001).
AIf an ALJ explicitly discredits the claimant=s
testimony and gives good reason for doing so, [a court] will normally defer to the
ALJ=s credibility determination.@ Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir.
2003). See also Halverson v. Astrue, 600 F.3d 922, 932 (8th Cir. 2010); Cox v.
Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). For the following reasons, the court
finds that the reasons offered by the ALJ in support of his credibility determination
are based on substantial evidence.
First, the ALJ considered Plaintiff’s work history. In particular, the ALJ
considered that Plaintiff’s work history failed to demonstrate a motivation to work
in the absence of a disabling impairment. In this regard, the ALJ considered that
Plaintiff allegedly began experiencing depressive symptoms in his forties, which
would have been in the late 1990s and later; that Plaintiff’s work record from age
twenty-one (about 1977) to that time did not show consistent work activity; and
that this information did not enhance Plaintiff’s credibility. (Tr. 331). A long and
continuous past work record with no evidence of malingering is a factor supporting
credibility of assertions of disabling impairments. See Allen v. Califano, 613 F.2d
139, 147 (6th Cir. 1980). For the same reason, an ALJ may discount a claimant=s
credibility based upon his poor work record. See Ellis v. Barnhart, 392 F.3d 988,
996 (8th Cir. 2005) (ALJ may properly consider claimant had not worked for
several years before filing SSI application); Ownbey v. Shalala, 5 F.3d 342, 344
(8th Cir. 1993). See also Fredrickson v. Barnhart, 359 F.3d 972, 976 (8th Cir.
2004) (ALJ properly found claimant not credible due in part to his sporadic work
record reflecting relatively low earnings and multiple years with no reported
earnings); Pena v. Chater, 76 F.3d 906, 908 (8th Cir. 1996); McClees v. Shalala, 2
F.3d 301, 303 (8th Cir. 1993). Work history is only factor among many for an ALJ
to consider. See Curran-Kicksey v. Barnhart, 315 F.3d 964, 969 (8th Cir. 2003).
Second, the ALJ considered that the objective medical evidence was
inconsistent with Plaintiff’s claim regarding the severity of his mental condition.
(Tr. 331-32). See 20 CFR § 404.1529(c)(2) (agency will consider “objective
medical evidence” when evaluating symptoms); Gonzales v. Barnhart, 465 F.3d
890, 895 (8th Cir. 2006) (ALJ may find claimant’s subjective pain complaints are
not credible in light of objective medical evidence to the contrary). In regard to
Plaintiff’s alleged mental impairments, the objective medical evidence established
that after being released from prison, Plaintiff was seen at the Hopewell Center, in
March 2009, at which time he complained of episodic difficulty with depression.
It was noted, on this date, that Plaintiff’s speech was coherent; his memory was
“moderately acceptable”; and he was oriented. (Tr. 245). On November 10, 2009,
Plaintiff was oriented and observant; he had no current indication for harming
himself or others; his speech was coherent; and his eye contact was adequate. (Tr.
282). When Plaintiff was seen for treatment of the flu, on February 10, 2010, his
speech and psychomotor activity were normal, and his flow of thought was
appropriate. (Tr. 281). In March 2010, Ms. Khatiwada noted that Plaintiff had a
normal mood, an appropriate affect, and no signs of hallucinations or delusions.
She also reported that Plaintiff was well oriented, but appeared agitated; and he
denied any current problems with his current situation and being suicidal,
delusional, and paranoid, although he reported experiencing mood swings. (Tr.
280, 284). On June 16, 2010, Plaintiff had normal thought content and realistic
insight and judgment about matters discussed with a counselor. He presented with
no signs of being a threat to himself or others. (Tr. 319). On November 23, 2010,
Ms. Khatiwada reported that Plaintiff’s thought content seemed appropriate, and he
had no signs of hallucinations, illusions, or depression. (Tr. 317). On December
21, 2010, Ms. Khatiwada reported that Plaintiff had normal speech; his thought
content was normal; he had good insight and judgment about matters discussed;
and he had no signs of hallucinations, depression, illusions, or delusions. (Tr.
On January 18, 2011, Ms. Khatiwada reported that Plaintiff was cooperative;
his judgment/insight was good; his affect and mood were hesitant; his thought
content was logical; he had no hallucinations or delusions; he was oriented; his
memory was normal; and he presented with normal thought content. (Tr. 311). On
February 15, 2011, Dr. Larice reported that Plaintiff’s eye contact was good; he
was alert and oriented; his behavior was appropriate; his mood was congruent; his
thought process was logical; and he had no suicidal or homicidal ideations. (Tr.
310). On March 3, 2011, Plaintiff was oriented; his affect was normal; he was
anxious; he did not exhibit compulsive behavior; he had normal language, was not
euphoric, fearful and did not have “flight of ideas; he denied hallucinations and
hopelessness; he had no mood swings, obsessive thoughts, or paranoia; he had
normal insight, judgment, attention span, and concentration; and he did not have
On January 30, 2013, it was reported that
Plaintiff had no anxiety, depression, or sleep disturbances. (Tr. 470). On April 9
and 24, 2013, Plaintiff was oriented and his mood and affect were normal. (Tr.
567, 587). On October 15, 2013, when Plaintiff presented in the emergency room
for chest pain, he was alert and oriented, calm, cooperative, and had clear speech
and normal mood and affect. (Tr. 492, 498).
Third, the ALJ considered the objective medical evidence relevant to
Plaintiff’s alleged physical limitations. See 20 CFR § 404.1529(c)(2); Gonzales,
465 F.3d at 895.
In particular, the ALJ considered Plaintiff’s cervical spine
degenerative disc disease supported his complaints of neck and shoulder pain, and
added to the credibility of those allegations. (Tr. 332). The record establishes that,
in June 25, 2010, a review of Plaintiff’s symptoms showed he was negative for
cough, dyspnea, wheezing, chest pain, irregular heart-beat, and for “bone/joint
symptoms and muscle weakness.” He was well nourished, his lungs were clear to
percussion, and he had normal musculature, no joint deformity or abnormalities,
and normal range of motion (ROM). (Tr. 290-91). On March 3, 2011, physical
examination showed Plaintiff was in no acute distress; he had no edema, cyanosis,
or clubbing in his extremities; and, although Plaintiff had pain on deep breathing,
his lungs were clear to percussion, there was no chest wall tenderness and no
cough, and his respiratory effort was normal. (Tr. 306-307).
When Plaintiff presented with neck pain, on January 18, 2013, physical
examination showed no abnormalities in regard to Plaintiff’s eyes, cardiovascular
“musculoskeletal/extremities,” Plaintiff was non-tender and had normal ROM, no
edema or calf tenderness, and no arm weakness. It was noted that Plaintiff’s blood
pressure was elevated but that he had no symptoms related to this condition. Upon
discharge Plaintiff was ambulatory, in good condition, and had no respiratory
distress. (Tr. 622-24). Also, in regard to Plaintiff’s allegations of disabling pain, a
review of Plaintiff’s systems, on January 30, 2013, showed that he had no vision
problems, no eye pain, no hearing loss, no chest pain or discomfort, no heart
palpitations, no dyspnea, no cough, no wheezing, no muscle aches, no localized
joint pain, no localized joint stiffness, no dizziness, no motor disturbances, and no
Also, Plaintiff had no hypertension and “[n]o physical
disability.” (Tr. 469-70). The impression from a January 30, 2013 x-ray of
Plaintiff’s cervical spine included abnormal straightening with mild kyphosis, early
change of minimal degenerative disc disease at C3-C4 and at C4-C5, and
significant degenerative disc disease at C6-C7. A view of Plaintiff’s thoracic spine
showed moderate thoracic scoliosis. (Tr. 473).
On April 9, 2013, when Plaintiff presented to the emergency room for neck
pain, it was noted that he had no symptoms which would justify an MRI; there was
no evidence of spinal cord or nerve root compression; Plaintiff denied motor
weakness; other than the neck pain, all of Plaintiff’s systems were negative; and he
was discharged in good condition, unaccompanied by anyone. (Tr. 587-88). Xrays of Plaintiff’s right shoulder, taken on April 24, 2013, when Plaintiff presented
to the emergency room with upper back and shoulder pain, were normal. (Tr. 56970). Also, on this date, no abnormalities were noted, upon examination, in regard
to Plaintiff’s eyes, cardiovascular system, respiratory system, neck, and neurologic
system. (Tr. 567). On October 15, 2013, when Plaintiff presented for chest pain, a
review of Plaintiff’s musculoskeletal system and extremities showed normal ROM,
and no pedal edema or calf tenderness, and reviews of his respiratory and
cardiovascular systems were normal. (Tr. 498).
On October 4, 2014, Plaintiff’s lungs showed no wheezing; his heart rate
and rhythm were normal; and he was well developed and in no acute distress. (Tr.
Fourth, the ALJ considered that Plaintiff’s allegations regarding his
symptoms were “primarily  general.” (Tr. 335). For example, the ALJ noted that
Plaintiff stated, in a Function Report – Adult, that he did not “want to go outside”
or “talk to people,” and that he did not “want to be around people unless [he] [was]
going out to take care of business.” (Tr. 149-50). The ALJ also considered that, at
the hearing, Plaintiff had difficulty expressing the relationship between his
“hearing voices” and his being unable to work. (Tr. 335).
Fifth, the court notes that Plaintiff testified at the hearing that he had not
seen his mental health provider for a “couple of years,” probably since 2011, and
that, at the time of the hearing, he was not seeing anybody for a mental health
disorder. (Tr. 356). Also, after Plaintiff was seen at the Hopewell Center, in
March 2009, he did not return there until November 2009. (Tr. 245, 282). Indeed,
the ALJ considered that, although Plaintiff’s Medicaid benefits were terminated in
the middle of 2012, he sought no mental health treatment after his Medicaid
eligibility was restored in 2013.3 (Tr. 338, 356). A lack of regular treatment for an
alleged disabling condition detracts from a claimant=s credibility. See Dukes v.
Barnhart, 436 F.3d 923, 928 (8th Cir. 2006) (upholding an ALJ’s determination a
claimant lacked credibility due in part to “absence of hospitalizations . . ., limited
treatment of symptoms, [and] failure to diligently seek medical care”); 20 C.F.R. §
The court notes that although Plaintiff sought treatment in January and April
2013, it was for physical pain, not mental health treatment. (Tr. 470, 567, 587).
404.1529(c)(3)(v) (the agency will consider the claimant’s treatment when
evaluating her symptoms): Roberts v. Apfel, 222 F.3d 466, 469 (8th Cir. 2000)
(citing Dixon v. Sullivan, 905 F.2d 237, 238 (8th Cir. 1990)). Eichelberger, 390
F.3d at 589 (holding that the ALJ properly considered that the plaintiff cancelled
several physical therapy appointments and that no physician imposed any workrelated restrictions on her).
Sixth, Plaintiff testified that he got “short winded”; he had this problem
since “at least 2000”; he smoked a half package of cigarettes a day, “maybe”; and
he had been trying to stop smoking. (Tr. 360-61). On June 25, 2010, Plaintiff was
referred to smoking cessation. (Tr. 291). On June 21, 2011, it was reported that
Plaintiff smoked cigarettes. (Tr. 306). Nurse Practitioner Gabrielle Satterfield
reported, on January 30, 2013, that Plaintiff said he had “snort[ted] cocaine in the
past week, and that Plaintiff was advised to stop using cocaine. (Tr. 469). She
also reported, on February 20, 2013, that Plaintiff said he had snorted heroin in the
past week. (Tr. 474). On October 15, 2013, it was reported that Plaintiff smoked
four to five cigarettes a day and that he used heroin. (Tr. 497). On November 14,
2013, it was again recommended that Plaintiff stop smoking. (Tr. 479). See
Wildman v. Astrue, 596 F.3d 959, 968-69 (8th Cir. 2010) (it is permissible for ALJ
to consider claimant’s non-compliance with prescribed medical treatment).
Seventh, the ALJ considered Plaintiff’s daily activities. (Tr. 336). While
the undersigned appreciates that a claimant need not be bedridden before [he] can
be determined to be disabled, Plaintiff's daily activities can nonetheless be seen as
inconsistent with [his] subjective complaints of a disabling impairment and may be
considered in judging the credibility of complaints. See Eichelberger, 390 F.3d at
590 (ALJ properly considered that plaintiff watched television, read, drove, and
attended church upon concluding that subjective complaints of pain were not
credible); Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001). Indeed, the
Eighth Circuit holds that allegations of disabling Apain may be discredited by
evidence of daily activities inconsistent with such allegations.@ Davis v. Apfel,
239 F.3d 962, 967 (8th Cir. 2001).
In regard to Plaintiff’s daily activities, the ALJ considered that Plaintiff’s
sister reported, in a November 2009 Function Report – Adult, that she did not let
him perform some household chores because she did not like the way he did them
or because he was inattentive and she worried about his leaving the stove on. (Tr.
336, 157-60). Notably, Ms. Khatiwada recommended, in November 2010, that
Plaintiff “keep himself occupied through television, socialization, church, or
helping out [his] sister with things.” (Tr. 318). As considered by the ALJ, on
January 30, 2013, it was reported that Plaintiff had “no physical disability and [his]
activities of daily living were normal.” (Tr. 336, 469). Further, Plaintiff testified
that he spent a typical day watching television or listening to music; he tried to
sweep and mop; he kept “the front room clean”; he sometimes folded laundry; the
only activity he engaged in outside of the house was walking; and when he walked,
he walked “around the block, probably to the park around the corner.” (Tr. 36162).
Eighth, the ALJ considered the observations by Social Security employees
and others. A[A]n ALJ may disbelieve a claimant=s subjective reports of pain
because of inconsistencies or other circumstances.@ Eichelberger, 290 F.3d at 589.
In particular, the ALJ considered that a Claims Representative (CR) reported no
abnormal observations. (Tr. 336). The court notes that the CR said he did not
observe that Plaintiff had difficulty with any of the following, when he met
Hearing, reading, breathing, understanding, coherency,
concentrating, talking, answering, sitting, standing, walking, seeing, using his
hands, and writing. (Tr. 125-26). The ALJ, however, gave the CR’s observations
little weight because there was no indication that he was a trained medical
professional. (Tr. 336).
Ninth, the ALJ considered that Plaintiff’s demeanor during the hearing “was
consistent with his general allegations regarding his mental impairments,” and that
this factor enhanced Plaintiff’s credibility. (Tr. 336). While an ALJ cannot accept
or reject subjective complaints solely on the basis of personal observations, see
Ward v. Heckler, 786 F.2d 844, 847-48 (8th Cir. 1986), an ALJ's observations of a
claimant=s appearance and demeanor during the hearing is a consideration, see
Steed v. Astrue, 524 F.3d 872, 876 (8th Cir. 2008) (holding that an ALJ Ais in the
best position@ to assess credibility because he is able to observe a claimant during
his testimony); Johnson v. Apfel, 240 F.3d 1145, 1147-48 (8th Cir. 2001) (AThe
ALJ=s personal observations of the claimant=s demeanor during the hearing is
completely proper in making credibility determinations@); Jones v. Callahan,122
F.3d 1148, 1151 (8th Cir. 1997) (AWhen an individual's subjective complaints of
pain are not fully supported by the medical evidence in the record, the ALJ may
not, based solely on his personal observations, reject the complaints as
incredible.@). Here, to reach his conclusion, the ALJ combined his review of the
record as a whole with his personal observations.
Tenth, the ALJ considered that Dr. Larice recommended that Plaintiff pursue
vocational training, school, or a job, which recommendation was inconsistent with
Plaintiff’s allegations regarding the severity of his conditions. (Tr. 310, 336).
AActs which are inconsistent with a claimant=s assertion of disability reflect
negatively upon that claimant=s credibility.@ Johnson v. Apfel, 240 F.3d 1145,
1148 (8th Cir. 2001).
Eleventh, the ALJ noted that, although Plaintiff’s lack of medication
compliance detracted from his credibility, this factor did not merit great weight.
(Tr. 336-37). See Wildman v. Astrue, 596 F.3d 959, 964-65 (8th Cir. 2010)
(holding that noncompliance is a basis for discrediting a claimant, and noting that
when the claimant was compliant with dietary recommendations his pain was
under good control).
In regard to Plaintiff’s compliance with taking prescribed medication, on
June 16, 2010, Plaintiff told a counselor that he did not want to take a particular
medication. (Tr. 319). As considered by the ALJ, on June 25, 2010, Plaintiff’s
blood pressure was elevated, but it was reported that he had stopped taking his
medications “due to [his] belief he didn’t need them.” (Tr. 291). Significantly, on
December 21, 2010, when Plaintiff denied having any “medical condition[s],” he
was compliant with taking his medications. (Tr. 315). On June 21, 2011, it was
noted that Plaintiff “refuse[d] lab work or health maintance [sic].” (Tr. 306). On
January 18, 2013, Plaintiff had no symptoms related to high blood pressure, even
though he was not taking any medications for this condition. (Tr. 623). On
October 4, 2013, it was reported that Plaintiff had not been taking a prescribed
medication; that he never got the prescription filled; and that Plaintiff had a history
of medication noncompliance. (Tr. 476). On October 5, 2013, when Plaintiff
presented to the emergency room for hypertension, he said that he had been out of
his hypertension medication for three days and that he could not afford the
medication. Also, Plaintiff refused to have a blood draw on this date, after an
unsuccessful attempt. (Tr. 530, 532, 536). On October 15, 2013, when Plaintiff
presented to the emergency room with chest pain, it was reported he was not taking
medications at that time. An emergency room summary from this visit states that
Plaintiff had been seen about a week prior, at which time he refused a complete
work up, although he was currently agreeable to the plan. (Tr. 497, 508). On
November 14, 2013, Plaintiff said he could not obtain his blood pressure
medication because he did not have any money. (Tr. 478).
The ALJ also considered that, despite Plaintiff’s not taking medication from
about March 2011 to the date of the hearing, in March 2014, Plaintiff was not
hospitalized during this period, and the medical sources interacting with him
during this period did not note any psychological issues for which Plaintiff might
need treatment. (Tr. 337). Plaintiff, moreover, testified that, on medication, he
heard voices “maybe once every two months,” and that his medicine got “rid of
any hallucinations.” (Tr. 24-25). See Renstrom v. Astrue, 680 F.3d 1057, 1066
(8th Cir. 2012) (conditions which can be controlled by treatment are not disabling).
To the extent Plaintiff argues that the ALJ should have relied on a Function
Report - Adult provided by Plaintiff’s sister when considering the effect of
Plaintiff’s medication and when considering his medication compliance, the court
notes that Plaintiff’s sister stated, in the Function Report - Adult, that Plaintiff did
not need help or reminders to take his medicine. (Tr. 159). Thus, the court finds
that the third-party function report actually damages Plaintiff’s credibility.
Twelfth, the court notes that Plaintiff made statements to medical providers
which were inconsistent with his allegations of disabling conditions. For example,
on December 21, 2010, when asked about his medical conditions, he told Ms.
Khatiwada that he did not have any, although he said he was unable to get “straight
sleep.” (Tr. 315). See Travis v. Astrue, 477 F.3d 1037, 1042 (8th Cir. 2007) (“An
ALJ may not disregard subjective complaints merely because there is no evidence
to support the complaints, but may disbelieve subjective reports because of
inherent inconsistencies or other circumstances.”).
Thirteenth, Ms. Khatiwada recommended, in November 2010, that Plaintiff
cut down on the amount of coffee he drank, and that he make attempts to increase
his appetite by trying to frequently eat little portions. (Tr. 317). Conservative
treatment is consistent with discrediting a claimant=s allegation of disabling pain.
See Pelkey v. Barnhart, 433 F.3d 575, 579 (8th Cir. 2006) (affirming ALJ’s
credibility determination based in part on claimant’s doctors having recommended
exercise and medication but never surgery); Black v. Apfel, 143 F.3d 383, 386 (8th
Fourteenth, the ALJ considered that Plaintiff’s self-isolation neither
corroborated nor refuted Plaintiff’s allegations regarding the severity of his alleged
mental condition. (Tr. 339). Indeed, the record fails to provide medical records
relevant to Plaintiff’s reporting that he did not want to see people, be around
people, go outside, or talk to people. (Tr. 147-51). A claimant=s limitation which
is self-imposed, rather than a medical necessity, is a basis upon which an ALJ may
discredit a claimant=s alleged limitation. See Blakeman v. Astrue, 509 F.3d 878,
882 (8th Cir. 2007) (AThe issue is not whether [the claimant] was credible in
testifying that he naps each weekday afternoon he is not working. The issue is
whether his heart condition compels him to nap each afternoon.@); Brunston v.
Shalala, 945 F. Supp. 198, 202 (W.D. Mo. 1996) (APlaintiff also testified that she
spent part of the day lying down; however, no physician stated that such a need
If plaintiff was not lying down out of medical necessity, then that
indicates that she was lying down by choice.@). Cf. Young v. Apfel, 221 F.3d
1065, 1069 (8th Cir. 2000) (AWe find it significant that no physician who examined
Young submitted a medical conclusion that she is disabled and unable to perform
any type of work.@) (citing Brown v. Chater, 87 F.3d 963, 964-65 (8th Cir. 1996)).
Weight Given to Opinion of Ms. Khatiwada and Dr. Larice:
The ALJ considered that the record includes a Mental RFC Questionnaire
signed, on January 28, 2011, by Dr. Larice, Plaintiff’s treating physician, but
completed by Ms. Khatiwada, Plaintiff’s case manager at the Hopewell Center.
Upon considering the Mental RFC Questionnaire, the ALJ noted that a medical
professional can adopt the content of a form by signing it, even if he or she did not
fill it out or write it. The Mental RFC Questionnaire states, among other things,
that the signs of Plaintiff’s mental condition included appetite disturbance,
decreased energy, difficulty concentrating or thinking, paranoid thinking,
hallucinations or delusions, motor tension, inflated self-esteem, easy distractibility,
sleep disturbances, and loss of intellectual ability of fifteen IQ points or more. It
also states that Plaintiff was unable to meet competitive standards for
understanding and remembering very short and simple instructions, for carrying
out very short and simple instructions, for maintaining regular attendance, for
sustaining an ordinary routine without special supervision, for making simple
work-related decisions, for performing at a consistent pace, for accepting
instructions, for dealing with normal work stress, for being aware of hazards, and
for taking appropriate precautions, traveling to unfamiliar places, and using public
transportation. Plaintiff had no ability to work in coordination with or proximity to
others without being unduly distracted, completing a normal workday without
interruptions from psychological based symptoms, carrying out detailed
instructions, and adhering to basic standards of neatness and cleanliness. The
Mental RFC Questionnaire further states that Plaintiff would be absent, due to his
impairments, more than four days a month, and that Plaintiff was a “malingerer.”
Plaintiff contends the ALJ erred in giving “no weight” to the
opinions expressed in the January 28, 2011 Mental RFC Questionnaire. For the
following reasons, the court finds that the ALJ’s determination not to give any
weight to the opinions expressed in the Mental RFC Questionnaire and that the
ALJ’s decision, in this regard, are based on substantial evidence.
First, upon failing to give this Mental RFC Questionnaire controlling weight,
the ALJ considered that Ms. Khatiwada assisted Plaintiff in completing this
document and that the endorsement of symptoms in the Questionnaire reflected
Plaintiff’s input more than Ms. Khatiwada’s conclusions about his abilities. (Tr.
332-33). See McCoy v. Astrue, 648 F.3d 605, 617 (8th Cir. 2011) (ALJ properly
discounted doctor’s opinion where evaluation was based, at least in part, on
claimant’s self-reported symptoms; insofar as claimant’s self-reported symptoms
were found to be less than credible, doctor’s report was rendered less credible);
Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007) (holding that the ALJ was
entitled to give less weight to the opinion of a treating doctor where the doctor=s
opinion was based largely on the plaintiff=s subjective complaints rather than on
objective medical evidence) (citing Vandenboom v. Barnhart, 421 F.3d 745, 749
(8th Cir. 2005)).
Second, the ALJ considered that, on the day the form was completed,
January 28, 2011, Plaintiff presented with no significant observed abnormalities,
except a “hesitant” mood and affect. Actually, Ms. Khatiwada saw Plaintiff just
ten days earlier, on January 18, 2011. On that date she reported that Plaintiff’s
judgment/insight was good; his speech was coherent; his affect and mood were
hesitant; his thought content was logical; he did not have hallucinations or
delusions; he was oriented “x3”; his memory was normal; he had normal content of
thought, with no signs of depressions or hallucinations; his eye contact was “good
overall”; and he “appeared expressive and respective.” (Tr. 311, 333). Also, on
December 21, 2010, just a month before the Questionnaire was completed, Ms.
Khatiwada reported that Plaintiff was on time, exhibited good insight and
judgment about the matters discussed and had no signs or symptoms of
hallucinations, depressions, illusions, or delusions; he had no complaints except for
sleep disturbance; and he expressed no needs except for a medication refill and
getting paperwork for his SSI appeal. The court also notes that Ms. Khatiwada
reported, on this date, that when she inquired about Plaintiff’s medical conditions,
Plaintiff “denied any,” and he denied needing any assistance besides wanting to
have his paperwork completed and obtain a refill for Valium. (Tr. 333, 314-15).
See Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006) (a physician=s own
inconsistency may diminish or eliminate weight accorded to his opinion). See also
Davidson v. Astrue, 578 F.3d 838, 842 (8th Cir. 2009) (AIt is permissible for an
ALJ to discount an opinion of a treating physician that is inconsistent with the
physician's clinical treatment notes.@); Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir.
2006) (holding that an ALJ may give a treating doctor=s opinion limited weight if it
is inconsistent with the record).
Third, the Mental RFC Questionnaire contained limitations which were
inconsistent with Plaintiff’s historical functioning, in particular, his consistently
normal presentation, with generally appropriate hygiene, consistent timeliness, and
consistent socially appropriate behavior. (Tr. 333).
Fourth, the Mental RFC Questionnaire contained inconsistencies, such as
stating that Plaintiff had a decrease in IQ points and had difficulty following
instructions because of his reasoning power, but also stating that Plaintiff was
capable of managing his own benefits and that Plaintiff was a malingerer. (Tr.
333). See Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006) (ALJ may elect
not to give controlling weight to treating doctor=s opinion, as the record must be
evaluated as a whole; treating physician=s own inconsistency may diminish or
eliminate weight accorded to his opinion).
Fifth, the ALJ considered that, on February 15, 2011, approximately two
weeks after the Mental RFC Questionnaire was completed, Plaintiff saw Dr.
Larice, and Dr. Larice reported that he saw no evidence of delusion or
hallucination, and suggested that Plaintiff try vocational training, going to school,
or getting a job.
Dr. Larice also reported that Plaintiff had no observable
abnormalities on a mental status examination; his eye contact was good; he was
alert and oriented; his behavior was appropriate; his mood was congruent; his
affect was euthymic; his thought process was logical; his thought content was
normal; his insight was good; and his judgment was fair. (Tr. 333, 310). See
Davidson, 578 F.3d at 842.
Sixth, to the extent Dr. Larice and Ms. Khatiwada opined that Plaintiff was
disabled for purposes of Social Security, it is the ALJ’s role to determine whether a
claimant is disabled within the meaning of the Act. See Renstrom v. Astrue, 680
F.3d 1057, 1065 (8th Cir. 2012) (a doctor’s finding that the claimant was totally
disabled “[got] no deference because it invade[d] the province of the
Commissioner to make the ultimate disability determination.”); Ward v. Heckler,
786 F.2d 844, 846 (8th Cir. 1986) (per curiam) ("Even statements made by a
claimant's treating physician regarding the existence of a disability have been held
to be properly discounted in favor of the contrary medical opinion of a consulting
physician where the treating physician's statements were conclusory in nature.@).
Seventh, the ALJ identified good reasons for not giving any weight to the
opinions expressed in the Mental RFC Questionnaire completed by Ms. Khatiwada
and Dr. Larice. See Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir. 1991); King
v. Heckler, 742 F.2d 968, 973 (6th Cir. 1984) (holding that the ALJ is not bound
by conclusory statements of total disability by a treating physician where the ALJ
has identified good reason for not accepting the treating physician's opinion, such
as its not being supported by any detailed, clinical, or diagnostic evidence). See
also SSR 96-2p 1996 WL 374188 (July 2, 1996) (clarifying that 20 C.F.R. §§
404.1527 and 416.927 require that ALJ to provide Agood reasons in the notice of
the determination or decision for the weight given to a treating source=s medical
In conclusion, the court finds that the ALJ gave sufficient reasons for
discounting the opinions of Ms. Khatiwada and Dr. Larice as expressed in the
January 28, 2011 Mental RFC Questionnaire, and that the ALJ’s decision, in this
regard, is based on substantial evidence.
Plaintiff’s GAF Scores:
GAF is the clinician=s judgment of the individual=s overall level of
functioning, not including impairments due to physical or environmental
limitations. See Diagnostic and Statistical Manual of Mental Disorders, DSM-IV,
30-32 (4th ed. 1994). Expressed in terms of degree of severity of symptoms or
functional impairment, GAF scores of 31 to 40 represent Asome impairment in
reality testing or communication or major impairment in several areas, such as
work or school, family relations, judgment, thinking, or mood,@ 41 to 50 represents
Aserious,@ scores of 51 to 60 represent Amoderate,@ scores of 61 to 70 represent
Amild,@ and scores of 90 or higher represent absent or minimal symptoms of
impairment. Id. at 32. See also Brown v. Astrue, 611 F.3d 941, 955 (8th Cir.
2010) (A[A] GAF score of 65 [or 70] . . . reflects >some mild symptoms (e.g.
depressed mood or mild insomnia) OR some difficulty in social, occupational, or
school functioning . . . but generally functioning pretty well, has some meaningful
interpersonal relationships.=@) (quoting Kohler v. Astrue, 546 F.3d 260, 263 (2d
Cir. 2008) (quoting Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of
Mental Disorders 34 (4th ed. 2000) (alterations in original).
The ALJ, in the matter under consideration, considered that Plaintiff was
primarily assigned GAF scores of 45 at the Hopewell Center, and that the
consultative examiner assigned a GAF score of 70. The ALJ considered the
significance of scores between 41 and 50 indicating serious symptoms and of
scores ranging from 61 to 70 indicating some mild symptoms, and concluded that
the assigned scores of 45 were not consistent with Plaintiff’s level of demonstrated
functioning. In particular, the ALJ considered that Plaintiff’s primary complaint
during treatment at the Hopewell Center was an inability to sleep; that his
symptoms were reportedly controlled or reduced with medication; and that
Plaintiff did not exhibit abnormalities consistent with scores of 45. The ALJ,
therefore, gave “little weight” to the implied opinion represented by Plaintiff’s
GAF scores of 45. (Tr. 334). For the following reasons, the court finds that the
ALJ gave proper weight to Plaintiff’s GAF scores.
Where a treating source assigns a GAF which is inconsistent with the
source’s treatment notes, an ALJ properly declines to give the GAF scores
controlling weight. See Jones v. Astrue, 619 F.3d 963, 974 (8th Cir. 2010); Grim
v. Colvin, 2014 WL 859840, at *7-8 (E.D. Mo. Mar. 5, 2014) (unpublished) (ALJ
properly found claimant’s mental impairments were not serious despite the
presence of GAF scores that reflected moderate or serious symptoms). See also
Juszczyk v. Astrue, 542 F.3d 626, 632-33 (8th Cir. 2008) (holding the ALJ's
decision not to rely on the treating physician's GAF assessment was supported by
substantial evidence where the assessment was extreme in light of the
contradictory medical evidence); Goff, 421 F.3d at 791 (noting the ALJ was not
compelled to give controlling weight to the physician's opinion where the GAF
assessment of 58 was inconsistent with the physician's opinion that the claimant
suffered from extreme limitations); Hudson ex rel. Jones v. Barnhart, 345 F.3d
661, 666-67 (8th Cir. 2003) (concluding the ALJ's decision that the GAF ratings
did not appear to reflect the claimant's abilities was supported by the record).
Further, while a GAF score may be helpful in assisting an ALJ=s formulating
a determination, it Ais not essential to the RFC=s accuracy.@ Howard v. Comm=r of
Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002). Additionally, the Regulations note
that the GAF scale does not have a direct correlation to the severity requirements
in the mental disorders listings.
65 F.R.D. 50746-01, 50764-65, 2000 WL
1173632 (Aug. 21, 2000). As such, the court finds that the ALJ’s consideration of
Plaintiff’s GAF scores from the Hopewell Center is consistent with the Regulations
and case law and that it is based on substantial evidence
The ALJ gave no weight to the GAF score of the consultative examiner,
Georgia Jones, M.D., who, after conducting a psychiatric examination of Plaintiff,
reported that he had a GAF of 70. The ALJ’s reason for giving little weight to Dr.
Jones’s opinion was that her report indicated the “potential for an implied negative
personal feeling toward” Plaintiff.
Upon reaching this conclusion, the ALJ
considered that Dr. Jones stated that she felt Plaintiff was “exaggerating his
symptoms,” “was playing with [her] trying to read [her] and give [her] the answers
[she] wanted about his psychiatric symptoms,” and that he “had an agenda.” (Tr.
While the court notes that Dr. Jones’s GAF assessment was
inconsistent with the record as a whole, an examining physician expression of
doubt about the validity of a claimant's complaints is a factor which discounts the
claimant's credibility. See Baker v. Barnhart, 457 F.3d 882, 892-93 (8th Cir. 2006)
(holding that the ALJ properly discounted the claimant=s complaints of pain upon
considering reports that the claimant exaggerated his symptoms during an
examination); Clay v. Barnhart, 417 F.3d 922, 930 n.2 (8th Cir. 2005) (noting that
two psychologists= findings that the claimant was Amalingering@ on her IQ tests cast
suspicion on the claimant's motivations and credibility); Jones v. Callahan, 122
F.3d 1148, 1151-52 (8th Cir. 1997) (holding that a physician's observation Aof the
discrepancies in [the claimant's] appearance in the examining room and those
outside when he did not know that he was observed@ supported an ALJ's finding
that the claimant's complaints were not fully credible). See also Russell v. Sec’y of
Health, Ed. and Welfare, 540 F.2d 353, 357 (8th Cir. 1976) (holding that where
doctors reported that the claimant was exaggerating her ailments and was
uncooperative, the record did not establish the requisite degree of certainty that the
claimant was disabled). Nonetheless, the court finds that the ALJ’s decision not to
give any weight to the GAF score Dr. Jones assigned to Plaintiff is based on
substantial evidence and that it is consistent with the Regulations and case law.
Opinion of Dr. Cottone:
Plaintiff contends that the ALJ failed to give a proper explanation for
discounting the opinion of Dr. Cottone, the State agency non-examining
psychological consultant. Dr. Cottone completed a Psychiatric Review Technique
Form and a Mental RFC Assessment, on January 20, 2010, and opined that
Plaintiff had mild limitations in restriction of activities of daily living; he had
moderate restrictions in maintaining social functioning, and concentration,
persistence or pace; and he was not significantly limited in the ability to remember
locations and work-like procedures, to understand and remember very short and
simple instructions, to carry out very short and simple instructions, to make simple
work-related decisions; to ask simple questions or request assistance, to respond
appropriately to changes in the work setting; and to be aware of normal hazards
and take appropriate precautions. Plaintiff was moderately limited in regard to the
ability to maintain attention and concentration for extended periods, to perform
activities within a schedule, maintain regular attendance, and be punctual within
customary tolerances, to sustain an ordinary routine without special supervision, to
work in coordination with or proximity to others without being distracted, to
complete a normal workday without interruptions, to interact appropriately with
the general public, to accept instructions and respond appropriately to criticism
from supervisors, to get along with coworkers, to maintain socially appropriate
behavior and to adhere to basic standards of neatness, and to use public
transportation. Dr. Cottone concluded that the “totality of the medical evidence
indicate[d] that [Plaintiff] [could] do simple work, with restrictions on his social
contact and avoidance of work proximal to available controlled substances.” (Tr.
The ALJ gave no weight to Dr. Cottone’s opinion because it was “internally
inconsistent”; Dr. Cottone, for example, opined that Plaintiff had a moderate
limitation in the ability to complete a normal workday, but he failed to account for
this limitations in his RFC assessment. (Tr. 262-68). An ALJ need not afford a
doctor’s opinion controlling weight where it is internally inconsistent. See Myers
v. Colvin, 721 F.3d 521, 525 (8th Cir. 2013). Cf. Hacker v. Barnhart, 459 F.3d
934, 937 (8th Cir. 2006) (holding that where a treating physician=s notes are
inconsistent with his or her RFC assessment, controlling weight is not given to the
RFC assessment). The court finds that the ALJ gave sufficient reason for his
determination not to give Dr. Cottone’s opinion any weight, see SSR 96-2p, 1996
WL 37188, at *3 (July 2, 1996) (clarifying that 20 C.F.R. §§ 404.1527 and
416.927 require that the ALJ provide Agood reasons in the notice of the
determination or decision for the weight given to a treating source=s medical
opinion(s)@), and that the ALJ’s decision, in this regard, is based on substantial
evidence and consistent with the Regulations and case law.
Function Report – Adult – Third Party:
Plaintiff contends that the ALJ failed to give proper weight to the Function
Report – Adult provided by Plaintiff’s sister.
The court has
discussed above, in regard to Plaintiff’s credibility, the contents of this report, and
has found above, that the report actually discredited Plaintiff’s claims regarding the
severity of his symptoms, as his sister stated that Plaintiff did not require reminders
to take nor help with his medications. As considered by the ALJ, Plaintiff’s sister
did not explain the underlying causes of Plaintiff’s alleged limitations of daily
activities. Further, there is no evidence of record to support some of the limitations
described by Plaintiff’s sister. For example, although Plaintiff’s sister reported that
Plaintiff could not lift “anything heavy” because there was “something wrong with
his knees,” she did not state what was wrong with Plaintiff’s knees. (Tr. 162). See
Black v. Apfel, 143 F.3d 383, 387 (8th Cir. 2006) (holding that an ALJ may
discount corroborating testimony on the same basis used to discredit a claimant’s
testimony). In conclusion, the court finds that the ALJ gave proper weight to the
Function Report – Adult completed by Plaintiff’s sister and that the ALJ’s
decision, in this regard, is based on substantial evidence and consistent with the
Regulations and case law.
As set forth above, the ALJ found Plaintiff had the RFC to perform medium
work, except that: Plaintiff was limited to simple, routine, and repetitive tasks; he
was unable to perform tasks requiring more than superficial interaction with the
public or coworkers; he was unable to deal with more than occasional change in
the routine work setting; he was unable to tolerate concentrated exposure to
temperature extremes, humidity, strong odors, fumes, dust, chemicals, or other
respiratory irritants; and he was unable to tolerate hazards such as unprotected
heights or dangerous moving machinery.
The Regulations define RFC as Awhat [the claimant] can do@ despite his or
her Aphysical or mental limitations.@ 20 C.F.R. § 404.1545(a). AWhen determining
whether a claimant can engage in substantial employment, an ALJ must consider
the combination of the claimant=s mental and physical impairments.@ Lauer v.
Apfel, 245 F.3d 700, 703 (8th Cir. 2001). AThe ALJ must assess a claimant=s RFC
based on all relevant, credible evidence in the record, >including the medical
records, observations of treating physicians and others, and an individual=s own
description of his limitations.=@ Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir.
2004) (quoting McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). See also
Myers v. Colvin, 721 F.3d 521, 526 (8th Cir. 2013).
As required by the Regulations and case law, upon determining Plaintiff’s
RFC, the ALJ moved analytically, from ascertaining the true extent of Plaintiff’s
impairments to determining the kind of work he could still do despite his
impairments. In this regard, as discussed in detail above, the ALJ considered
factors relevant to Plaintiff’s credibility, including the objective medical evidence.
See Lauer, 245 F.3d at 704 (holding that although assessing a claimant=s RFC is
primarily the responsibility of the ALJ, a A>claimant's residual functional capacity
is a medical question=@) (quoting Singh v. Apfel, 222 F.3d 448, 451 (8th Cir.
2000)). The ALJ specifically considered that Plaintiff’s hypertension, when not
medicated, caused occasional dizziness and headaches, and noted the medical
evidence relevant to Plaintiff’s hypertension by including a limitation in Plaintiff’s
RFC that he not be exposed to respiratory irritants or to workplace hazards, such as
unprotected heights. (Tr. 340, 474, 490, 535). As for Plaintiff’s symptoms related
to degenerative disc disease, the ALJ limited Plaintiff to work at the medium level
of exertion. (Tr. 339, 473). As for Plaintiff’s mental condition, the ALJ limited
Plaintiff to simple, routine, and repetitive tasks, to performing tasks requiring more
than superficial interaction with the public or coworkers, and to dealing with no
more than occasional change in the routine work setting. See Lauer, 245 F.3d at
704 (A>Some medical evidence,= Dykes v. Apfel, 223 F.3d 865, 867 (8th Cir. 2000)
(per curiam), must support the determination of the claimant's RFC, and the ALJ
should obtain medical evidence that addresses the claimant=s >ability to function in
the workplace,= Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000).@). See also
Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010) (AThe ALJ bears the
primary responsibility for determining a claimant's RFC and because RFC is a
medical question, some medical evidence must support the determination of the
claimant's RFC.@); Eichelberger, 390 F.3d at 591.
The ALJ also considered that the evidence did not warrant further
environmental restrictions, given that Plaintiff smoked cigarettes throughout the
relevant period without triggering any exacerbations of his symptoms. (Tr. 340,
The ALJ did not include restrictions in Plaintiff’s RFC to accommodate
Plaintiff’s alleged grasping problems, as the ALJ found there was no credible
record evidence to support such a claim. (Tr. 340, 357-580). See Tindell v.
Barnhart, 444 F.3d 1002, 1007 (8th Cir. 2006) (AThe ALJ included all of Tindell=s
credible limitations in his RFC assessment, and the ALJ=s conclusions are
supported by substantial evidence in the record.@).
Indeed, the court finds that the ALJ’s RFC assessment is precise as it
directly addresses Plaintiff’s restrictions and that it is based upon and is consistent
with all of the relevant evidence. See McKinney v. Apfel, 228 F.3d 860, 863 (8th
Cir. 2000) (AThe Commissioner must determine a claimant's RFC based on all of
the relevant evidence, including the medical records, observations of treating
physicians and others, and an individual's own description of his limitations.@)
(citing Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995)).
To the extent Plaintiff contends that the ALJ’s decision is not supported by
substantial evidence because it does not completely mirror the opinion of a
particular medical source such as Dr. Larice, upon formulating a claimant’s RFC,
the “ALJ is not required to rely entirely on a particular physician’s opinion or
choose between the opinions of any of the claimant’s physician’s.” Martise v.
Astrue, 641 F.3d 909, 927 (8th Cir. 2011).
In conclusion, the court finds that the ALJ sufficiently cited medical
evidence to support his RFC determination; that he considered the medical
opinion evidence relevant to Plaintiff’s mental health functioning; and that he
reconciled his opinion with medical facts reported by Plaintiff’s physicians.
Further, the court finds that the ALJ’s RFC determination is based on substantial
evidence and is consistent with the requirements of the Regulations and case law.
After determining Plaintiff’s RFC, the ALJ submitted a hypothetical to a VE
which described a person of Plaintiff’s age and with his RFC, education, and work
history, and the VE testified that the hypothetical person was capable of
performing jobs which existed in significant numbers in the national economy.
(Tr. 367-68). To the extent Plaintiff suggests the ALJ failed to include limitations
beyond those encompassed in the RFC determined by the ALJ, the ALJ was not
required to include these additional limitations in the hypothetical. See Renstrom
v. Astrue, 680 F.3d 1057, 1067 (8th Cir. 2012); Martise v. Astrue, 641 F.3d 909,
927(8th Cir. 2011) (AThe ALJ's hypothetical question to the vocational expert
needs to include only those impairments that the ALJ finds are substantially
supported by the record as a whole.@) (quoting Lacroix v. Barnhart, 465 F.3d 881,
889 (8th Cir. 2006)); Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir. 2010)
(“[T]he ALJ was not obligated to include limitations from opinions he properly
disregarded.”); Guilliams v. Barnhart, 393 F.3d 789, 804 (8th Cir. 2005) (holding
that a proper hypothetical sets forth impairments supported by substantial
evidence and accepted as true by the ALJ).
Indeed, a hypothetical is sufficient if it sets forth the impairments which are
accepted as true by the ALJ. Haggard v. Apfel, 175 F.3d 591, 595 (8th Cir. 1999)
(holding that the ALJ need not include additional complaints in the hypothetical
not supported by substantial evidence). Moreover, where a hypothetical question
precisely sets forth all of a claimant=s physical and mental impairments, a VE=s
testimony constitutes substantial evidence supporting the ALJ=s decision. Martise
v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011) (ABased on our previous conclusion .
. . that >the ALJ's findings of [the claimant=s] RFC are supported by substantial
evidence,= we hold that >[t]he hypothetical question was therefore proper, and the
VE's answer constituted substantial evidence supporting the Commissioner=s
denial of benefits.=@) (quoting Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir.
2006)); Robson v. Astrue, 526 F.3d 389, 392 (8th Cir. 2008) (holding that a VE=s
testimony is substantial evidence when it is based on an accurately phrased
hypothetical capturing the concrete consequences of a claimant=s limitations);
Wingert v. Bowen, 894 F.2d 296, 298 (8th Cir. 1990).
Significantly, the ALJ in this matter considered the DOT independently of
the VE’s testimony, and determined that the DOT provided that there was work
which Plaintiff could perform. (Tr. 341-42). Cf. Kemp v. Colvin, 765 F.3d 926,
930 (8th Cir. 2014) (remanding denial of benefits because “the record does not
reflect whether the VE or the ALJ even recognized the possible conflict between
the hypothetical” and the recommended job). Only after determining that there
was work which Plaintiff could perform did the ALJ find Plaintiff not disabled.
As such, the court finds that the ALJ’s ultimate determination that Plaintiff was
not disabled is based on substantial evidence and consistent with the Regulations
and case law.
For the reasons set forth above, the court finds that substantial evidence on
the record as a whole supports the Commissioner’s decision that Plaintiff is not
IT IS HEREBY ORDERED that the relief sought by Plaintiff in his
Complaint and Brief in Support of Complaint is DENIED; Docs. 1, 17.
Dated this 28th day of September 2015.
/s/ Noelle C. Collins
UNITED STATES MAGISTRATE JUDGE
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