Constable v. Colvin

Filing 21

MEMORANDUM AND ORDER. (See Full Order.) For the aforementioned reasons, I conclude that the ALJ failed to properly evaluate the weight to accord the opinions of treating physician Dr. Daniel Vinson, and therefore her decision was not supported by substantial evidence on the record. As a result, I will remand for the ALJ to render a decision consistent with this order. Accordingly, IT IS HEREBY ORDERED that the decision of the commissioner is reversed and remanded under sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Memorandum and Order. A separate judgment in accordance with this Memorandum and Order is entered this same date. Signed by District Judge Catherine D. Perry on 9/29/2015. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NICOLE CONSTABLE,

)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Case No. 4:14 CV 1128 CDP

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3) for
judicial review of the Commissioner’s final decision denying Nicole Constable’s
application for supplemental security income (SSI) under Title XVI of the Social
Security Act. 42 U.S.C. §§ 1381 et seq. Constable claims she is disabled due to a
combination of impairments including bipolar disorder, social anxiety, depression,
seizures and back problems, and mental instability. After a hearing, the
Administrative Law Judge concluded that Constable is not disabled. Because I
find that the ALJ did not properly evaluate the weight to accord the opinions of
Constable’s treating physician, I will reverse and remand for further proceedings.
I.

Procedural History

Constable filed her application on May 27, 2011. She alleged a disability
onset date of January 1, 2007. When her application was denied, she requested a

hearing before an administrative law judge. She then appeared at an administrative
hearing on December 19, 2012, where she was represented by counsel. Constable
and a vocational expert testified at the hearing.
After the hearing, the ALJ denied Constable’s application in a decision dated
February 11, 2013, and Constable appealed to the Appeals Council. On April 22,
2014, the Council denied her request for review. The ALJ’s decision thereby
became the final decision of the Commissioner. Van Vickle v. Astrue, 539 F.3d
825, 828 (8th Cir. 2008).
Constable now appeals to this court. She argues that: (1) the ALJ’s RFC
was improper because it was not based on some medical evidence; and (2) the ALJ
erred in her credibility determination. Constable claims these mistakes led to a
decision by the ALJ that was not supported by substantial evidence in the record
and should be reversed or remanded for further evaluation.
II.

Evidence before the Administrative Law Judge
Function Reports

In support of her application, Constable completed a function report in
August 2011. She wrote that her daily activities consist of waking up around 10 or
11, watching television, and waiting for her mom to get home. She wrote that she
rarely feels like bathing or getting dressed, and she generally eats only once a day.

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She wrote that she wants to leave the house but has anxiety and does not want to
see or talk to anyone. If they go to town, she waits in the car.
Constable wrote that prior to the onset of her illnesses she was able to work
and had better self-esteem and confidence. She reported that her sleep is affected
by her illnesses, and she has anxiety and pain from her back and/or leg that keep
her from sleeping. Constable reported that she does not do her hair or make-up,
bathes only two or three times per week (sometimes her mother needs to remind
her to bathe), shaves her legs once a week and prepares and feeds herself frozen
dinner or “something easy” in the late afternoon. She does not need reminders to
take medicine, and she prepares her own meals, including frozen dinners,
sandwiches, hot pockets, and yogurt.
Constable wrote that for household chores, she is able to pick-up, take out
the trash, make her bed, do laundry, sweep, and if her back is not hurting, vacuum.
She reported that her family has to remind her to do these things or sometimes
threaten to kick her out of the home if she does not do them.
One to three times a week Constable reported that she goes outside. She
rides in a car or uses public transportation, but usually goes with someone because
she does not “want something bad to happen” and does not “want to mingle in
public.” She reported that she does not drive due to a DUI from 2006. Constable
noted that she rarely shops, but she shops in stores and on the computer. She shops
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for 30 minutes at the most. Constable checked boxes indicating she is able to pay
bills, count change, handle a savings account and use a checkbook.
Constable reported that she has “lost” her hobbies and her interest in a lot of
life since the onset of her illnesses. Socially, she tries to go to church every
Sunday or when her “mood is right,” but she reported that she needs to be
accompanied by her mom or dad. She wrote that she argues with her family often
because she does not pay bills or do enough chores, and she does not attend family
functions like she used to because she is embarrassed.
Constable indicated that her illnesses affects her ability to lift, squat, bend,
kneel, talk, climb stairs, remember, complete tasks, concentrate, follow
instructions, and get along with others. She reported that she can pay attention for
approximately 20 minutes, does not finish what she starts, and can follow spoken
instructions “pretty well.” Constable wrote that she gets along with authority
figures “somewhat well.” She has never been fired or laid off for problems getting
along with other people. Constable wrote that she does not handle stress well, and
she has public/social anxiety and fears meeting new people and going places alone.
Michelle Constable, the claimant’s mother, also completed a function report
for claimant in August 2011. M. Constable reported that she spends 3-4 hours a
week with her daughter during which they watch television, eat, and talk. She
indicated that her daughter lives in a mobile home with family but lays in bed in
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her pajamas most of the day and bathes maybe two times per week. M. Constable
wrote that claimant feeds, waters, and plays with a kitten. She reported that prior
to her daughter’s impairments, her daughter was able to work and attend school.
Now, claimant experiences erratic sleep, dresses sloppily, does not bathe regularly,
does not fix her hair very often, and does not eat regularly. M. Constable has to
remind claimant to bathe and to take her antidepressants. She reported that
claimant sometimes prepares herself frozen dinners but does not participate in
household chores. Claimant mostly just sleeps and is despondent despite her
mother’s encouragement to participate in things. M. Constable reported that
claimant goes outside 2-3 times per week, and that she can go out alone but cannot
drive herself. Claimant shops in the grocery store once every week or two and can
count change, but is not able to pay bills, handle a savings account, or use a
checkbook.
According to M. Constable’s report, since the onset of her impairments,
claimant has lost interest in working, working out and attending school. Her
hobbies now include watching television and playing with her cat. Socially, she
telephones and texts her family and a few friends but does not go anywhere on a
regular basis, and she has trouble keeping relationships. M. Constable reported
that claimant needs to be reminded to go places, like her doctor appointments, and
since the onset of claimant’s illnesses, she generally shows no interest in
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socializing with others. Claimant’s impairments affect her ability to lift, climb
stairs, squat, kneel, bend, talk, complete tasks, get along with others, remember,
and concentrate. Claimant does not like authority, does not handle stress or
changes in routine very well, and is scared of being alone in public.
M. Constable wrote that claimant is very despondent, fights with her friends,
and has a hard time keeping friends and getting along with family. She noted that
claimant is very immature at times.
Medical Records
Mental Health History
Dr. Donald James
Constable saw Dr. Donald James four times between May 2010 and
February 2011. Visit notes from May 2010, show James believed Constable
suffered from chronic anxiety, chronic depression and neck pain secondary to a
motor vehicle accident. On January 14, 2011, Constable complained of seizure
and panic attacks. James’ impressions from that visit were recorded as “[s]eizure
versus pseudoseizure versus borderline personality disorder versus depression
versus panic attacks.” He noted that he discussed her drug use with her, she
wanted to enter a teen treatment center, and she had a consult set up with a
neurologist. On January 27, 2011, James’ notes indicate Constable suffered from
chronic anxiety, a questionable seizure disorder, and cannabis usage, though
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Constable reported she was no longer using. In February 2011, she was seen by
James for complaints of anxiety and two seizures. He noted she had polysubstance
and alcohol abuse problems. [Tr. 281-290].
St. John’s Mercy Medical Center
In December 2010, Constable was admitted to St. Johns Mercy Medical
Center for a complaint of possible seizures. She was diagnosed as having had a
panic attack and discharged the same day. She was prescribed Lorazepam. The
notes state Constable was negative for depression. [Tr. 260-279]
Dr. Daniel C. Vinson
The record contains a significant number of clinic notes, dating from May
2010 through December 2012, made by Dr. Daniel C. Vinson, who served as
Constable’s primary care physician for at least two and a half years leading up to
her administrative hearing. Vinson’s notes consistently list Constable’s problems
as agoraphobia; anal fissure; benzodiazepine abuse, continuous; chronic recurrent
major depressive disorder; opioid dependence, in remission; and panic disorder.
However, Vinson’s “diagnosis” of Constable at each visit typically only included a
few of these problems. More specific notes from these visits were as follows:
In May 2010 it was noted that Constable had not kept recent follow-up
appointments and had decided to stop her Suboxone. Off of it, she had craved and
taken some illicit opioids. Her depression was much worse, and at the appointment
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she was depressed, tearful and anxious. In June 2010, Constable was back on her
Suboxone. She reported being more anxious recently. She was going to narcotics
anonymous each week and had been in counseling at “Pathways.” Vinson noted
that her opioid dependence was doing well but her psych problems were not. He
noted she had missed her appointment with a psychiatrist that morning and had
been very unwilling to see psychiatrists in their clinics in the past.
Constable missed scheduled appointments with Vinson in July and August
2010. In September 2010, she reported she had relapsed after being given a
prescription for Percocet after surgery. She had been out of Suboxone for three
weeks and reported using illicit benzos. At her October 2010 appointment
Constable reported severe depression and anxiety, but she reported no recent illicit
drug use and was attending alcohol education classes.
Constable missed her appointment in November 2010. In December 2010,
she failed to show up for her appointment but called in two hours later pleading for
a refill on her Suboxone. At her January 2011 appointment, Constable reported
doing “all right.” She had recently had a panic attack and a pseudoseizure that was
ascribed to her panic disorder. Vinson noted that her opioid dependence seemed to
be doing well. Constable’s pharmacy reported that she had received multiple
benzodiazepine prescriptions in the recent months and had reported a theft of one
and received a new prescription for it. Vinson noted this was strong evidence of
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aberrant drug-related behaviors and he suspected benzo dependence or abuse.
Constable’s affect was noted to be depressed. In February 2011, Vinson noted that
Constable’s anxiety symptoms were severe, and her anxiety, panic disorder, and
agoraphobia were hard to manage. Her affect was anxious. In April 2011,
Constable reported being very depressed. She wanted to see a psychiatrist but had
difficulty getting an appointment because she had failed to keep so many previous
appointments. Her affect was depressed. In May 2011, Constable again indicated
she needed help from psychiatry, but she had not shown up for her April
appointment. Vinson noted she was anxious, tearful, and “bargaining, pleading”
for Xanax. [Tr. 292-342]. Visit notes from July reported the same issues from
previous visits. [Tr. 346-356].
Throughout the period of August 2011-September 2012, Vinson prescribed
Constable Suboxone (for pain and opioid addiction), Klonopin for anxiety, and
Wellbutrin, Celexa and/or Zoloft for depression. During her pregnancy, which
appears to have been first discovered by Vinson in November 2011, Vinson
switched her from Suboxone to Subutex. As of April 2012, Vinson stopped
prescribing Constable Klonopin, noting that she had a benzodiazepine addiction
and should not be on any of the benzo family of medications. It appears that at this
time he also stopped her antidepressant medications. Vinson’s July 2012 visit

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notes report that another doctor was prescribing Constable Zoloft for depression.
More specific notes made by Vinson from this period are as follows:
In August 2011 Constable reported her depression was better, her anxiety
was “always present” but Klonopin took the edge off, and she had some pain,
which she said was helped by Suboxone. In September 2011 Vinson reported
Constable had continued anxiety and panic attacks but had not pushed for an
increase in her benzo despite this. At her October 2011 visit, Vinson noted
Constable was slightly depressed with a flat affect but still smiled several times.
He felt she was reasonably stable and her anxiety appeared well controlled on
Klonopin.
Vinson’s notes from Constable’s November 2011 visit report that anxiety
was still a major problem for her. She had cocaine in her urine and was noted to be
26 weeks pregnant. She was working with a caseworker to find her own place, but
for the time being was sleeping on her father or her aunt’s couch. At Constable’s
December 2011 visit, Vinson noted that she was staying in a “safer place” at her
mother’s home. She reported that at her father’s house, her father’s girlfriend had
been taking her Suboxone. Vinson continued to encourage Constable to work with
a psychotherapist. In January 2012, Vinson noted that Constable was “doing well”
and attending group therapy. She was finally living in her own place.

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Vinson’s notes from late February 2012 state that Constable had a C-section
to deliver her daughter on February 13, and her daughter remained in the NICU
because of opioid withdrawal. Vinson noted that the drugs that the infant tested
positive for indicated that Constable’s drug use during pregnancy was “almost
certainly substantially greater than she acknowledges here today or in recent phone
conversations….” He reported that Constable’s “use of benzos is out of control.”
Constable acknowledged using Percocet and some Xanax during pregnancy but
said it was only when she ran out of her prescriptions. Vinson noted that
Constable was angry about Department of Family Services’ involvement with her
and her daughter – she was tearful and defensive. He noted that nurses from the
hospital where she delivered had reported that she displayed concerning behavior,
but she attributed that behavior to anxiety and stress. [Tr. 430].
In notes from Constable’s April 2012 visit, Vinson reported that she was
defensive about her recent problems, blaming various other people for her troubles.
He noted that when he told her she had an addiction to benzodiazepines, she began
reciting all of her anxiety problems to him, saying that even her baby “has to have
Klonopin to function normally.” [Tr. 426]. At this visit, the records indicate
Vinson did not refill or renew Constable’s Klonopin prescription.
Vinson’s May and July 2012 notes indicate that Constable was doing
somewhat better. During her July appointment, she stated that she was starting to
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get comfortable in counseling and that she felt healthy and clear-headed, but that
all of her life was still a struggle. At her July 2012 visit, Constable had her
daughter with her, Vinson reported Constable was attentive and caring, and held
the baby throughout the appointment.
Vinson’s September 2012 notes indicate Constable reported she had anxiety
she did not know how to deal with, but she was feeling less depressed. Vinson
indicated Constable was still having marked anxiety. His notes show that at this
visit he prescribed her Zoloft for depression and sertraline for anxiety. He noted
that if she had no improvement in her anxiety in four weeks, he planned to switch
her to fluoxetine. [Tr. 413-456]
At Constable’s October 2012 visit with Vinson, she reported that she had not
seen her therapist for three weeks. She had called for an appointment two days
previously but had not been called back yet. She had been seeing a counselor at
Southeast Missouri Behavioral Health but that work had concluded, and she
reported that in any case neither her therapist nor her counselor had focused on her
anxiety. She reported that her anxiety persisted, she was “doing OK” taking care
of her daughter, but her only support was her grandparents, who did not seem to
understand medication assisted treatment of addiction. Vinson’s notes state that
Constable was “doing well except for anxiety.” His office would contact Pathways
Community Behavioral Healthcare to see if they had a therapist who could address
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Constable’s anxiety. He noted more needed to be done to control her anxiety or
she risked a relapse to illicit benzo use. [Tr. 601-604].
Vinson’s notes from December 2012 state that she came with her
grandmother and daughter. Her biggest problem was anxiety, and she asked about
a psychiatry consult during the visit. He reported that she had tried at least seven
anxiety medications but only Klonopin helped, and she wanted to take it again. He
wrote that her anxiety was worse in public, even in a grocery store. It had
prevented her from enrolling in school to get her GED. He noted that she was no
longer with Pathways because she had lost her insurance for a short period and her
spot was not available. She had not been able to get a psychiatry appointment on
her own because she was still taking Suboxone. At the appointment Constable was
“anxious, almost tearful talking about her anxiety.” She stated “I really need help
… I’ve let this go too long.” Vinson increased and/or supplemented some of
Constable’s anxiety medication and consulted a psychiatrist about same. He also
connected her with a social worker he thought could help with finding her a
psychotherapist near her home. [Tr. 588-593].
Pathways Community Behavioral Healthcare
The record contains office treatment records from Pathways Community
Behavioral Healthcare, Inc. dated April 2012 to September 2012. Constable
received home visits from Pathways social workers who completed progress notes
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on her status. She also was seen by a Pathways psychiatrist, Dr. Denise Troy
Curry during this time.
The social workers’ notes indicate Constable reported being deeply
depressed during their first two visits, finding it difficult to get out of bed and eat,
and only feeling happy when she was with her baby, who was still in the hospital.
She was prescribed and started taking Remeron for depression but was resistant to
the idea of entering drug treatment while her daughter was still in the hospital. At
the representatives’ third visit on April 30, Constable was happy, smiling, and
feeling optimistic. She reported that she had spoken with a treatment center that
said she could be admitted very soon. She had stopped taking Remeron because it
made her groggy.
At her May 3 visit with Curry, Constable reported her mood was improving
and the past week’s events had been good. Curry noted Constable’s affect was less
blunted and anxious. Curry reported her impressions as:
Axis I:
Axis II:
Axis III:
Axis IV:
Axis V:

Panic Disorder, with agoraphobia
Opioid Dependence
Diagnosis deferred
7 weeks postpartum
severe: limited supports, chronic illness, baby with DFS
GAF 52

On May 8, Constable reported feeling down again and like she did not want
to get out of bed or get dressed, however, she entered treatment at the Carol Jones
Treatment Center in May as planned. She was there until mid-June 2012.
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Constable met with the Pathways social workers again starting in late June
2012. She reported that she was on Chlordiazepoxide for anxiety but it did not
make her feel better. She reported feelings of anxiety and depression. Constable
missed or cancelled appointments with Pathways on June 21 and 22. She met with
Dr. Curry on June 28 and reported that she was doing well in some things but
might be more depressed. Curry noted that Constable appeared lethargic and
fatigued with a blunted facial expression. Her affect was blunted and anxious.
Curry noted that Constable’s anxiety was unremitting and she was having panic
causing loss of consciousness. Curry reported her impressions as:
Axis I:

Axis II:
Axis III:
Axis VI:
Axis V:

Depression
Panic disorder with agoraphobia
Opioid dependence
Consider bipolar II
Deferred at this time
7 weeks postpartum
severe: limited supports, chronic illness, baby with DFS
GAF 52

The same day, Constable met with her social workers and reported having
depression and an overwhelming feeling of anxiousness. She reported being
unhappy with Curry and asked the social workers to help her find a new
psychiatrist and primary care provider.
Constable met with a new Pathways psychiatrist, Dr. Suneetha Somireddy,
on July 9, 2012. Constable reported feeling very depressed and anxious.
Somireddy reported her impressions as follows:
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Axis I:

Axis II:
Axis III:
Axis IV:
Axis V:

Depression, NOS; r/o major depressive disorder-recurrent
Panic disorder, with agoraphobia
Generalized anxiety disorder
Opioid dependence
Consider Bipolar II
Deferred at this time
Postpartum, obesity
severe: limited supports, chronic illness, baby with DFS
GAF 50

At a visit with her Pathways social workers on the same day, Constable
reported feelings of anxiety, depression, panic, and agoraphobia. She said her
family had little faith in her and she found herself avoiding them. She had little
motivation to get out of bed and shower and stated that nothing made her happy.
She agreed to attend one or two Birthright classes per month once her daughter
came home with her.
At visits in mid and late July with her Pathways social workers, Constable
reported she was doing well and trying to follow the instructions of the court. She
reported a decrease in depression but stated that she was feeling slightly
overwhelmed but was managing it well. Her biggest worry was about not hearing
her daughter cry when she woke up at night, as her daughter was scheduled to
come home for 30-day trial August. At a meeting in September with a licensed
professional counselor from Pathways, Constable apologized for missing several
previous appointments. Constable identified her mood as good.

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At her final visit with Dr. Somireddy, Constable reported her depression was
a little better but that she was still struggling with anxiety, particularly social
anxiety, and she had been missing her parenting classes and appointments because
of it. Somireddy’s impressions were the same as those noted after the previous
visit. [Tr. 357-412]
Salem Hospital
Constable was admitted to the emergency department at Salem Hospital in
February 2012 after being sent there by the treatment center she was in. She
complained of being very anxious, stressed, and depressed. She reported that she
was not eating and did not care what happened to her. Constable complained that
she had done everything she had been told to do to get her baby back. The ED
doctor who saw her diagnosed her with adjustment disorder with anxiety. He
advised her of some coping mechanisms and discharged her. [Tr. 486-89].
Constable was admitted to the Salem Hospital emergency department in
March 2012 for a reported seizure brought on by stress. She was given magnesium
sulfate and decadron and discharged after two hours. [Tr. 469-473].
Carol Jones Recovery Center
Constable was admitted into a residential treatment program (Carol Jones)
from May 14, 2012 to June 18, 2012. Notes made upon her admission indicated
she reported having participated in approximately seven substance abuse programs
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in the past, successfully completing about three of them and dropping out of many
of them. She admitted to approximately four years of substance abuse. Constable
first reported that she was close with her mother, father, sister, and grandmother
but later admitted that she and her parents were not that close and that her
grandmother was her primary support person. She reported having two to three
close friends who do not abuse substances. Constable’s primary concern was the
custody situation with her daughter. She stated she was not seeking employment
until her daughter was at least six months old. The notes state that Constable
presented with mild depression and reported ongoing feelings of anxiety and panic
attacks. She reported experiencing such severe panic attacks in the past that she
blacked out and had seizures. She denied any reoccurring or current medical
complications. Constable admitted that in the last month and a half of her
pregnancy she had relapsed on Xanax, Percocet, and hydrocodone. She also
admitted taking at least one Xanax as recently as that month (May 2012). She
claimed her anxiety was ridiculous and she was often panicky.
Upon admission, Constable was seen by Lisa See, MSW, LCSW, CADC.
See noted that she had concerns about Constable “not factually reporting some of
the information that resulted in her referral” to the program. See noted that this
“also provided a challenge in the diagnostic process.” See’s impressions were:
Axis I:

Opioid dependence
Sedative, hypnotic, or anxiolytic abuse (R/O dependence)
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Axis II:
Axis III:
Axis VI:
Axis V:

Anxiety disorder NOS
Depressive disorder NOS
Diagnosis deferred
Observe other mental conditions
Legal problems, problems with primary support group
GAF: 50

The discharge summary from Constable’s stay indicates that at the end of
her treatment, she elected not to continue her benzodiazepines because of her
previous abuse of them. Her psychological problems were listed as anxiety, panic
attacks, and depression. [Tr. 572-587].
Southeast Missouri Behavioral Health
From December 2011 to June 2012, Constable was admitted to the SMBH
outpatient program. The discharge notes from this period state that Constable had
worked with the licensed professional counselor on her mental health goals and
completed the objectives of her treatment plan. They state that she had a
supportive family and a referral for local support groups and that she “portrayed a
positive and upbeat attitude toward the treatment of her sobriety.” Gabriel
Chambers, BA, RASAC I, CSS and William B. Matthews, MS, LPC, CRC
assessed Constable as follows:
Axis I:

Axis II:
Axis III:
Axis VI:

Major depressive disorder recurrent – moderate
Cannabis abuse
Opioid Abuse - Percocet
Social anxiety disorder
risk mild
housing problems
legal problems
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Axis V:

social problems
occupational problems
GAF: 60

From July to October 2012 Constable was again admitted to SMBH’s
program after being referred by the Carol Jones center and the Department of
Social Services for treatment of chemical dependence and mental health issues.
SMBH’s discharge summary from this period states that Constable completed all
the requirements of her program, and developed a treatment plan with objectives in
chemical dependence and mental health. It further states that Constable was
attending NA meetings on Tuesdays and Saturdays and that she “represented that
she has strong family support.” Carolyn Baty, LPC completed Constable’s
discharge summary and her assessment of Constable was as follows:
Axis I:

Axis II:
Axis III:
Axis IV:
Axis V:

Opioid dependence
Cannabis dependence
Major depressive disorder recurrent – moderate
Social anxiety disorder
No diagnosis
Risk: Moderate
DSS involvement
GAF: 76
Degenerative Disc Disease and Obesity

Dr. James noted in May 2010 that Constable’s spine was normal and she had
a normal range of motion and function. [Tr. 282]. In her June 2010 appointment
with Dr. Vinson, Constable reported she was having pain from her right lower back
down her right leg. [Tr. 328]
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Constable was admitted to the Salem Memorial emergency department in
December 2010 complaining of back pain that was precipitated by a fall she had
had four to five days previously. She reported extreme pain in her low back with
pain radiating to her legs. She was seen by Dr. David White whose notes state
Constable had decreased range of motion with extension, though she had normal
spinal alignment. Her motor and sensation were normal; her gait was steady but
slow. The nurse’s notes from this visit indicate Constable was impatient and
anxious. An x-ray was taken of her lumbar spine, and the radiologists found
“degenerative changes [were] present at L4/L5 and facet joints at lumbosacral
junction” but “no other significant changes” were seen. Constable eventually
checked herself out of the hospital against medical advice approximately four
hours after admission. [Tr. 511-520].
At three separate visits to Dr. James in January and February 2011, it was
noted that Constable’s spine was normal and her extremities had a normal range of
motion and function. [Tr. 283-287]. In February 2012, at a visit to the Emergency
Department at Salem Hospital for mental health-related reasons, Constable
reported she had pain in her coccyx radiating to her right leg. She rated the pain in
her coccyx a six out of ten. [Tr. 486]

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Residual Functional Capacity Assessment
In August 2011, as part of the administration’s initial disability
determination, state agency psychologist Dr. Steven Akeson reviewed Constable’s
medical records and completed a residual functional capacity assessment. In the
area of understanding and memory, Dr. Akeson opined that Constable’s ability to
remember locations, work-like procedures, and short and simple instructions was
not significantly limited. He opined that her ability to understand and remember
detailed instructions was moderately limited.
In the area of concentration and persistence, Dr. Akeson opined that
Constable’s ability to carry our very short and simple instructions, perform
activities within a schedule, maintain regular attendance, be punctual within
customary tolerances, sustain an ordinary routine without special supervision,
make simple work-related decisions, complete a normal workday and workweek
without interruptions from psychologically-based symptoms, and perform at a
consistent pace without an unreasonable number and length of rest periods was not
significantly limited. He opined that her ability to carry out detailed instructions,
maintain attention and concentration for extended periods, and work in
coordination with or proximity to others without being distracted by them was
moderately limited.

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As for Constable’s social interaction limitations, Akeson opined that her
ability to ask simple questions, request assistance, maintain socially appropriate
behavior, and adhere to basic standards of neatness and cleanliness was not
significantly limited. He opined that her ability to interact appropriately with the
general public, accept instructions, respond appropriately to criticism from
supervisors, and get along with coworkers or peers without distracting them or
exhibiting behavioral extremes was moderately limited. [Tr. 79-81].
Medical Source Statements
On December 11, 2012, Dr. Vinson completed an Alcoholism and Drug
Addiction Evaluation in which he reported that drug addiction is not Constable’s
only impairment, and although her other impairments are exacerbated by drug use,
without drug use, they would still be disabling. In the comments section, Vinson
noted that Constable is stable in recovery from opioid use disorder.
On the same date, Vinson also completed a Medical Source Statement –
Mental and a Medical Source Statement – Physical. Both medical source
statements consisted primarily of check boxes.
In the mental MSS Vinson reported that Constable’s ability to remember
locations and work-like procedures and to understand and remember very short and
simple instructions was not significantly limited. He reported that her ability to
understand and remember detailed instructions was moderately limited. He
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reported that her ability to carry out very short and simple instructions, perform
activities within a schedule, maintain regular attendance, be punctual within
customary tolerances, and sustain an ordinary routine without special supervision
was not significantly limited. He noted that Constable’s ability to understand and
remember and carry out detailed instructions, maintain attention and concentration
for extended periods, and make simple work-related decisions was moderately
limited. He noted that her ability to work in coordination with or proximity to
others without being distracted, to complete a normal workday and workweek
without interruption from psychologically based symptoms, and to perform at a
consistent pace without an unreasonable number and length of rest periods was
markedly limited. With regard to social interaction, he reported that Constable’s
ability to ask simple questions, request assistance, maintain socially appropriate
behavior, and adhere to basic standards of neatness and cleanliness was not
significantly limited. He reported that her ability to interact appropriately with the
general public, accept instructions, respond appropriately to criticism from
supervisors, and get along with coworkers or peers without distracting them or
exhibiting behavioral extremes was markedly limited. Vinson reported that
Constable’s ability to respond appropriately to changes in the work setting, be
aware of normal hazards, and take appropriate precautions was moderately limited.
Her ability to set realistic goals or make plans independently of others was
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markedly limited, and her ability to travel in unfamiliar places or use public
transportation was extremely limited.
In the physical MSS completed by Vinson, he reported that Constable could
frequently lift or carry 10 pounds, occasionally carry 20 pounds, stand or walk
continuously for 30 minutes and for three hours in an eight-hour day, sit
continuously for 30 minutes and for four hours in an eight-hour day, and push or
pull an unlimited amount. He opined that she could never climb, stoop, kneel,
crouch, or crawl, but that she could frequently balance, reach, handle, finger, feel,
see, speak, and hear. He reported that she should avoid any exposure to extreme
cold or heat, dust or fumes, hazards, and heights. She should avoid moderate
exposure to weather, wetness/humidity, and vibration. Finally, he wrote that
Constable would need to lie down or recline every three hours for ten minutes
during an eight-hour work day.
Constable’s Testimony Before ALJ
At the administrative hearing before the ALJ on December 19, 2012,
Constable testified that she had recently moved in with her grandparents while she
looked for another home to live in with her daughter. She testified that since her
alleged onset date she went into debt on credit cards and received some help from
her family to support herself.

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Constable stated that she has an email address and a Facebook page, but she
does not check Facebook much because it gives her anxiety. When asked why she
thinks she is disabled, Constable responded that she struggles with anxiety and
depression, and she always makes things a “bigger deal” in her head than they
actually are. She testified that she could be doing fine at a job or school, but then
one day she won’t feel good enough or will feel like there is something wrong with
her, and she will stop showing up. Constable last worked at a “Curves for
Women” owned by her grandmother. Her job was to sign people up, talk to the
women, and do light cleaning. The job ended when she was told she had a
herniated disc in her back and the doctor recommended she do something different.
Constable also provided childcare in a daycare for about a year and a half, but that
job ended when she moved.
In a typical day, Constable testified that she gets up with her daughter
around 8:30 or 9:00 a.m., they eat breakfast, play, and read books, and watch TV
She testified that she gives her daughter baths, but has difficulty bending down, so
she has to take breaks. She testified that she does not watch much TV. She reads,
looks at things on eBay, looks at kids’ toys on parents.com and reads parenting
articles. She testified that her grandparents encourage her to get outside more.
During the time she was living independently, she went to the park twice with her
daughter over a nine-month period. She attends parenting classes once a week.
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Constable talked about the DSF requirements she had to meet in order to get
custody of her daughter. These included attending two inpatient treatment centers
and a parenting class. In the treatment centers, Constable testified she was
required to do her own laundry, do dishes, make her bed, and vacuum or sweep.
Constable testified that she cooks very easy meals and occasionally goes shopping
with her grandma. She noted that has anxiety worse now than ever.
The ALJ asked Constable how she met her daughter’s father. Constable
testified that he was the brother of a friend she met in an outpatient treatment
center. She went out to dinner with him. He was 52 years old and an alcoholic.
Constable testified that she has probably been to one or two movies since that
relationship, but she could not name what movies. She testified that she likes card
games and would “love, love” to go back to school. She testified that she has told
everyone this, including her counselors. She does not have a driver’s license and
gets around by getting rides from her grandma and close friends. There is no
public transportation where she lives.
Constable testified that her mother visits her, as does one close friend. She
goes to NA meetings usually once a week, though recently she had been going
only once a month. She testified that she generally avoids family and friends’
events like weddings, funerals, and graduations.

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Constable testified that her daughter was born with an opioid addiction,
which they knew was going to happen because Constable took Suboxone during
her pregnancy. She stated that currently she is on Suboxone, Zoloft, a low dose of
Klonopin, and BuSpar, but the BuSpar is not really helping. She testified that with
her current meds she has felt pretty good, and she stated that she was also starting
to have appointments with a therapist, which she hoped would help her. She later
testified that she still has panic attacks once or twice every other month.
Constable stated that she has lower back pain with pain shooting down her
leg sometimes. She has pain maybe 10 out of 30 days, and lifting aggravates it.
Constable stated that she had had steroid injections in her back, but she could not
tell if they actually worked because at the time she was also on pain medication.
She was prescribed physical therapy at some point and had gone for a while but
had not been to an appointment in a couple of years, and no one had told her to go.
Constable testified that she had very bad depression right after her daughter
was born, but the Zoloft seems to be helping with it now. She testified that she still
gets “the down and out feelings” and “the I’m not good enough.” The last time she
had a pseudo seizure from a panic attack was June 2012. Constable testified that
standing does not bother her unless her back is hurting, and that she can lift her
daughter, who is 19 pounds, but “that is pushing it.”

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Vocational Expert’s Testimony
Vocational expert Carly Kauflin also testified before the ALJ. She classified
Constable’s past work as follows: fitness center sales representative – SVP 4, light;
childcare attendant – SVP 2, medium; and cashier – SVP 2, light. The ALJ then
asked Kauflin to consider a hypothetical individual of the same age, educational
level, and job experience as Constable. The individual would be limited to light
work except she may frequently climb ramps and stairs, never climb ladders, ropes
or scaffolds; may frequently balance, stoop, kneel, crouch, and crawl; must avoid
concentrated exposure to noise, vibration, and hazards such as dangerous
machinery and unprotected heights; and is limited to simple, routine, and repetitive
work. Kauflin testified that Constable could likely not perform any of her past
work, but she could perform work as a general assembler – SVP 2, light; a circuit
board assembler – SVP 2, light; or a hand packager – SVP 2, light.
During examination by Constable’s attorney, Kauflin testified that it would
be work preclusive if the ALJ’s hypothetical person were to miss work
approximately four times per month. She testified that missing work even two
times per month would be work preclusive. She next testified that it would be
work preclusive if that hypothetical person were 10% less productive than average,
and being 10% less productive than average would preclude all employment in the
simple, routine, and repetitive work category.
- 29 -

III.

Standard for Determining Disability under the Social Security Act

Social security regulations define 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 twelve months. 42
U.S.C. § 416(i)(1); 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 404.1505(a); 20
C.F.R. § 416.905(a).
Determining whether a claimant is disabled requires the Commissioner to
evaluate the claim based on a five-step procedure. 20 C.F.R. § 404.1520(a),
416.920(a); see also McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011)
(discussing the five-step process).
First, the Commissioner must decide whether the claimant is engaging in
substantial gainful activity. If so, he is not disabled.
Second, the Commissioner determines if the claimant has a severe
impairment that significantly limits the claimant's physical or mental ability to do
basic work activities. If the impairment is not severe, the claimant is not disabled.
Third, if the claimant has a severe impairment, the Commissioner evaluates
whether it meets or exceeds a listed impairment found in 20 C.F.R. Part 404,
Subpart P, Appendix 1. If the impairment satisfies a listing in Appendix 1, the
Commissioner will find the claimant disabled.
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Fourth, if the claimant has a severe impairment and the Commissioner
cannot make a decision based on the claimant's current work activity or on medical
facts alone, the Commissioner determines whether the claimant can perform past
relevant work. If the claimant can perform past relevant work, he is not disabled.
Fifth, if the claimant cannot perform past relevant work, the Commissioner
must evaluate whether the claimant can perform other work in the national
economy. If not, he is declared disabled. 20 C.F.R. § 404.1520; § 416.920.
Evaluation of Mental Impairments
The Commissioner has supplemented the familiar five-step sequential
process for evaluating a claimant's eligibility for benefits with additional
regulations dealing specifically with mental impairments. 20 C.F.R. § 416.920a.
The procedure requires an ALJ to determine the degree of functional limitation
resulting from a mental impairment. The ALJ considers limitation of function in
four capacities deemed essential to work. 20 C.F.R. § 416.920a(c). These
capacities are: (1) activities of daily living; (2) social functioning; (3)
concentration, persistence or pace; and (4) deterioration or decompensation in
work or work-like settings. 20 C.F.R. § 416.920a(c)(3). After considering these
areas of function, the ALJ rates limitations in the first three areas as either: none;
mild; moderate; marked; or extreme. The degree of limitation with regard to

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episodes of decompensation is determined by application of a four-point scale:
none; one or two; three; or four or more. See 20 C.F.R. § 416.920a(c)(4).
After rating the degree of functional loss, the ALJ is to determine the
severity of the mental impairments with reference to the ratings. 20 C.F.R. §
416.920a(d). If the mental impairment is severe, then the ALJ must determine
whether it meets or equals a listed mental disorder. Id. This is done by comparing
the presence of medical conclusions and the rating of functional limitation to the
criteria of the appropriate listed mental disorders. Id. If the claimant has a severe
impairment, but the impairment neither meets nor equals the listing, then the ALJ
is to do a residual functional capacity assessment. Id.
IV.

The ALJ’s Decision

Applying the five-step sequential evaluation, the ALJ first determined that
Constable had not engaged in substantial gainful activity since the date she applied
for SSI benefits, May 27, 2011.
At step two, the ALJ found that Constable had the following severe
combination of impairments: panic disorder with agoraphobia, opioid dependence,
depressive disorder not otherwise specified, generalized anxiety disorder,
degenerative disc disease, and obesity.
At step three, the ALJ determined that Constable does not have an
impairment or combination of impairments that meets or medically equals the
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severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix
1. First, the ALJ opined that Constable’s back impairment did not satisfy the
listing 1.04 for disorders of the spine. Next, the ALJ found that none of her mental
impairments singly or in combination meet or medically equal the criteria of
listings 12.04, for affective disorders, or 12.06 for anxiety-related disorders. In
making this finding, the ALJ considered whether the “paragraph B” criteria of the
listings were satisfied and determined they were not. She found Constable had a
mild restriction in activities of daily living; mild difficulties in social functioning;
moderate difficulties with regard to concentration, persistence, or pace; and no
episodes of decompensation of extended duration. The ALJ determined that none
of the “paragraph C” criteria of the relevant listings were satisfied.
Next, the ALJ found Constable has the residual functional capacity to
perform light work as defined in 20 CFR § 416.967(b). She opined that Constable
can frequently climb ramps and stairs, but never climb ladders, ropes, or scaffolds.
She determined Constable can frequently balance, stoop, kneel, crouch, and crawl,
but she must avoid concentrated exposure to noise, vibration, and hazards such as
dangerous machinery and unprotected heights. Finally, she opined that Constable
is limited to simple, routine, repetitive tasks.
In fashioning the RFC, the ALJ determined that while Constable’s
impairments could be expected to produce her alleged symptoms, Constable’s
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statements regarding the alleged intensity, persistence, duration, and impact on
functioning of her impairments were not entirely credible.
With regard to Constable’s back pain, the ALJ noted that although the
medical records showed degenerative disc disease in Constable’s spine, she had
not presented with medical signs reasonably consistent with her allegations. A
December 2010 x-ray showed degenerative changes at the L4-L5 disc space and
facet joints of the lumbosacral junction. However “no other significant findings
were observable” from the x-ray, and Constable has not experienced any chronic
deficits in her motor, sensory, reflex or strength capabilities. Other than using pain
medication, Constable had not sought or been recommended for any significant
treatment for her back pain during the relevant period, and she testified that the
pain is alleviated by walking and applying heat. The ALJ opined that this type of
conservative treatment did not support a conclusion of “intractable back pain onethird of the time” as alleged.
The ALJ next determined that Constable’s mental impairments have
“manifested only mildly abnormal medical signs” that do not support the presence
of functional limitations greater than those in the RFC. The ALJ noted that mental
status examinations performed during the relevant period showed only
“intermittent, mildly abnormal medical findings such as depressed, anxious or
tearful affect,” and many of her mental status examinations indicated no significant
- 34 -

findings. The ALJ noted that much of Constable’s most severe problems with her
mental state were related and limited to losing custody of her daughter in February
2012. The ALJ further opined that the credibility of Constable’s claims regarding
her mental impairments was diminished by her treatment history. Her treatment
regimen consisted of the use of medications and therapy, and no extreme measures
for treating Constable’s “rather extreme allegations, particularly her purported
panic attacks” had been recommended to or sought by her. Constable failed to
keep several doctor’s appointments and had engaged in drug-seeking behavior.
Next, the ALJ opined that Constable’s credibility was diminished by her
poor work history and by inconsistencies in the record regarding her drug use and
her ability to drive. Lastly, in discounting Constable’s credibility, the ALJ noted
that Constable reported engaging in daily and social activities that exceed the
extreme limitations she alleged. For instance, Constable claimed she was able to
live independently (cook, clean, shop, care for herself), care for her daughter,
attend group therapy and NA meetings, attend parenting classes and church
services, and meet a boyfriend and become pregnant while disabled. She also
noted that Constable has friends and a strong family support system.
The ALJ accorded the medical opinions of Dr. Daniel Vinson little weight
because they were not consistent with his treatment records or with the record as a
whole. She noted that Vinson’s opinion that that Constable possesses marked
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restrictions with regard to social functioning was inconsistent with Constable’s
reports that she engaged in a wide variety of social activities. Vinson’s opinion
that Constable has a disabling physical impairment was not supported by the
medical evidence.
Partial weight was accorded to the opinion of non-examining state agency
psychological consultant Steven Akeson. The ALJ noted that Akeson’s opinion
was consistent with the Constable’s “longitudinal medical history and self-reported
daily activities.” However, she opined that his conclusion that Constable has
moderate difficulties in social functioning was “belied by the claimant’s testimony
and other statements” indicating that she has only mild difficulties in that area.
The ALJ gave partial weight to the various Global Assessment of
Functioning scores assigned to the plaintiff throughout the medical record, except
that she accorded less weight to GAF scores below 60.
Lastly, the ALJ accorded partial weight to the third party function report
completed by Constable’s mother because the mother’s statements as to the
severity of Constable’s impairments “merely corroborated” Constable’s, which the
ALJ found not credible. The mother’s observations regarding Constable’s daily
activities were “fully considered” for purposes of the ALJ’s opinion.
At step four, the ALJ found that the demands of Constable’s past jobs
exceed her RFC and she is unable to perform past relevant work.
- 36 -

Finally, at step five, the ALJ relied on the vocational expert’s testimony to
conclude that, given Constable’s RFC, age, education, and work experience, she is
capable of making a successful adjustment to work that exists in significant
numbers in the national economy.
V.

Standard of Review

This court’s role on review is to determine whether the Commissioner’s
decision is supported by substantial evidence on the record as a whole. Johnson v.
Apfel, 240 F.3d 1145, 1147 (8th Cir. 2003). “Substantial evidence” is less than a
preponderance but enough for a reasonable mind to find adequate support for the
ALJ's conclusion. Id. When substantial evidence exists to support the
Commissioner's decision, a court may not reverse simply because evidence also
supports a contrary conclusion, Clay v. Barnhart, 417 F.3d 922, 928 (8th Cir.
2005), or because the court would have weighed the evidence differently.
Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992).
To determine whether substantial evidence supports the decision, the court
must review the administrative record as a whole and consider:
(1) the credibility findings made by the ALJ;
(2) the education, background, work history, and age of the claimant;
(3) the medical evidence from treating and consulting physicians;

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(4) the plaintiff's subjective complaints relating to exertional and
nonexertional impairments;
(5) any corroboration by third parties of the plaintiff's impairments; and
(6) the testimony of vocational experts, when required, which is based upon
a proper hypothetical question.
Stewart v. Sec'y of Health & Human Servs., 957 F.2d 581, 585–86 (8th Cir. 1992).
VI.

Discussion

Constable argues that the ALJ erred by (1) improperly assigning treating
physician Dr. Vinson’s opinions little weight; (2) improperly relying on the
medical opinion of a state agency non-examining physician; (3) improperly
discounting Constable’s credibility; (4) not basing her physical RFC on at least
some medical evidence; (5) failing to include a proper narrative discussion
regarding how the evidence supports her RFC.
Dr. Vinson’s Opinions
In analyzing medical evidence, “[o]rdinarily, a treating physician's opinion
should be given substantial weight.” Rhodes v. Apfel, 40 F.Supp.2d 1108, 1119
(E.D.Mo.1999) (quoting Metz v. Shalala, 49 F.3d 374, 377 (8th Cir.1995)). A
treating physician's opinion will typically be given controlling weight when the
opinion is “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in
- 38 -

[the] record.” Prosch v. Apfel, 201 F.3d 1010, 1012–1013 (8th Cir.2000) (quoting
20 C.F.R. § 404.1527(c)(2)). Such opinions, however, do “not automatically
control, since the record must be evaluated as a whole.” Id. at 1013 (internal
citation and quotation marks removed). Opinions of treating physicians may be
discounted or disregarded where other “medical assessments ‘are supported by
better or more thorough medical evidence.’” Id. (quoting Rogers v. Chater, 118
F.3d 600, 602 (8th Cir.1997)).
Whatever weight the ALJ accords the treating physician's report, the ALJ is
required to give good reasons for the particular weight given. See Holmstrom v.
Massanari, 270 F.3d 715, 720 (8th Cir.2001). The ALJ, however, is not required
to discuss every piece of evidence submitted. See Morrison v. Apfel, 146 F.3d 625,
628 (8th Cir.1998). If the opinion of a treating physician is not well supported or
is inconsistent with other evidence, the ALJ must consider: (1) the length of the
treatment relationship and the frequency of examination, (2) the nature and extent
of the treatment relationship, including the treatment provided and the kind of
examination or testing performed, (3) the degree to which the physician's opinion
is supported by the relevant evidence, (4) consistency between the opinion and the
record as a whole, (5) whether or not the physician is a specialist in the area upon
which an opinion is rendered, and (6) other factors which may contradict or

- 39 -

support the opinion. See Rhodes, 40 F.Supp.2d at 1119; 20 C.F.R. §
404.1527(c)(2)-(6).
In evaluating Dr. Vinson’s opinions, the ALJ first stated, generally, that his
opinions were not consistent with his treatment records or with the record as a
whole. The ALJ then turned to Dr. Vinson’s mental MSS. She noted that
“although his report possessed a number of marked restrictions with regard to
social functioning, the claimant reported being able to engage in a wide variety of
social activities that are inconsistent with such a conclusion.” For instance, the
ALJ noted that Constable met her boyfriend and became pregnant after her alleged
onset date of disability, and that she has friends, attends church and has a “strong
family support system.” She also noted, with regard to both of Vinson’s opinions,
that they were consisted of a “checkbox format that does not provide an
explanation reconciling the discrepancies between the evidence of record and his
Medical Source Statement.” This is the extent of the analysis the ALJ undertook
regarding Vinson’s mental MSS before she determined that his opinion should not
only not be given controlling weight, but should be accorded little weight.
As an initial matter, I find that the ALJ’s discussion regarding Vinson’s
mental MSS fails to show how Vinson’s opinions are inconsistent with “substantial
evidence” in the record, such that they should not be accorded controlling weight.
The ALJ noted a few instances in which Constable engaged in a relationship or
- 40 -

group activities, but she failed entirely to discuss or reference any of the extensive
objective medical records pertaining to Constable’s mental health, Dr. Akeson’s
medical opinion, or the third party function report completed by Constable’s
mother — all of which would seem to support Dr. Vinson’s opinion. Even if the
ALJ did properly show and conclude that Vinson’s opinion should not be accorded
controlling weight, however, in determining the proper weight to accord it, she still
neglected to consider the factors required by 20 C.F.R. § 404.1527(c)(2)-(6). The
regulations mandate that an ALJ “always give good reasons…for the weight
[accorded a] treating source's opinion.” 20 C.F.R. § 404.1527(c)(2); Reed v.
Barnhart, 399 F.3d 917, 921 (8th Cir. 2005). The ALJ has failed to do so in this
instance.
With regard to Vinson’s physical MSS, I find that ALJ’s opinion is similarly
problematic. She opined that although Vinson reported that Constable had “an
unspecified physical impairment that precludes fulltime employment,” the
objective medical evidence of record, which she had previously discussed, “does
not establish the presence of a physical impairment that results in such a profound
limitation.” As already noted, she then added that the checkbox format of
Vinson’s opinions provided no explanation reconciling the discrepancies between
the evidence of record and his opinions.

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As discussed in the ALJ’s opinion, there is minimal objective evidence
regarding Constable’s alleged degenerative back problems, including in Dr.
Vinson’s own records. The record includes a 2010 x-ray showing degenerative
changes at “L4/L5 and facet joints at lumbosacral junction,” but no other
significant findings were noted at that time. Twice in 2010 and once in 2012
Constable reported back pain to her doctors, but there is no medical evidence that
she obtained or was recommended for physical therapy or sought any further
treatment for her pain. She did testify that she has received steroid injections in
her back, but it seems that primarily her treatment has been to use Suboxone as a
painkiller. In visits to Dr. James in January and February 2011, Constable’s spine
was noted to be normal.
However, in determining the proper weight to accord Vinson’s opinion, the
ALJ again failed to properly discuss or consider the factors required by 20 C.F.R. §
404.1527(c)(2), and as a result, I conclude that the she failed to give good reasons
for the weight accorded to a treating physician’s medical opinion. In light of this,
this case will be remanded for proper consideration of Dr. Vinson’s opinions. At
that time, the ALJ shall reconsider the record as a whole, including the medical and
nonmedical evidence of record, the medical opinion evidence, and plaintiff’s own
description of her symptoms and limitations, and reassess plaintiff’s RFC. Such
reassessed RFC shall be based on some medical evidence in the record and shall be
- 42 -

accompanied by a discussion and description of how the evidence supports each
RFC conclusion.
Dr. Akeson’s Opinion
Constable argues that the opinion of psychologist, Dr. Steven Akeson, a
state agency non-examining medical source, was improperly accorded
“considerable weight” by the ALJ. The ALJ actually accorded Akeson’s opinion
partial weight, noting that his conclusion that Constable possesses moderate
difficulties in social functioning was belied by her testimony and other statements.
Normally, the opinions of non-treating practitioners who have attempted to
evaluate the claimant without examination do not constitute substantial evidence
on the record as a whole. Shontos v. Barnhart, 328 F .3d 418, 427 (8th Cir.2003).
Although the opinions of nonexamining sources may be considered, they are
generally given less weight than those of examining sources. Wildman v. Astrue,
596 F.3d 959, 967 (8th Cir.2010); see 20 C.F.R. § 404.1527(c)(1). Furthermore, in
evaluating nonexamining source opinions, the ALJ “evaluate[s] the degree to
which these opinions consider all of the pertinent evidence in [the] claim, including
opinions of treating and other examining sources.” 20 C.F.R. § 404.1527(d)(3); see
also id. § 404.1527(f) (discussing rules for evaluating nonexamining state agency
opinions). In Wildman, in determining that the ALJ properly disregarded the state
agency psychologists’ opinions from 2003 and 2004, the Eighth Circuit found it
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“significant that the state agency evaluators did not have access to medical records
from 2005 to 2006.” 596 F.3d at 967.
Here, it is not entirely clear exactly how Akeson’s opinion factored into the
ALJ’s final RFC determination, or how according it less or no weight would have
changed the RFC—especially after the ALJ had already independently discounted
Vinson’s opinion. In any case, however, I have already determined that this matter
will be remanded for the ALJ to reevaluate all evidence of record and reassess her
RFC determination. On remand the ALJ should reconsider and weigh Akeson’s
opinion in accordance with law and precedent discussed above.
The Credibility Determination
The ALJ found that although Constable’s impairments could reasonably be
expected to produce her alleged symptoms, the alleged intensity, persistence,
duration, and impact on functioning of her impairments were not entirely credible.
Constable argues that the ALJ’s credibility finding was improper for three
reasons. First, she claims the ALJ failed to cite or consider the Polaski factors
noted below. Second, she claims the ALJ erred by using Constable’s activity level
as a basis for discounting her credibility as to the severity of her impairments.
Third, Constable claims the ALJ erred because she “ignored other parts of
Constable’s testimony that detracted from the activities cited by the ALJ.”

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Under the framework set forth in Polaski v. Heckler, 739 F.2d 1320, 1322
(8th Cir. 1984), an ALJ must consider the following factors when evaluating a
claimant's credibility:
(1) the claimant's daily activities; (2) the duration, intensity, and
frequency of pain; (3) the precipitating and aggravating factors; (4)
the dosage, effectiveness, and side effects of medication; (5) any
functional restrictions; (6) the claimant's work history; and (7) the
absence of objective medical evidence to support the claimant's
complaints.
Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011). The ALJ is not required to
explicitly discuss each Polaski factor. Id. “It is sufficient if he acknowledges and
considers those factors before discounting a claimant's subjective complaints.”
Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir. 2004). Although an ALJ
cannot discount a claimant's subjective allegations solely on a lack of objective
medical evidence to support them, he may find a lack of credibility based on
inconsistencies in the evidence as a whole. See Ford v. Astrue, 518 F.3d 979, 982
(8th Cir.2008).
Constable’s first argument fails because the ALJ not only cited to the
Federal Regulation and Social Security Ruling governing the factors that must be
considered in assessing a claimant’s credibility, she also explicitly recited the
Polaski factors. See 20 CFR 416.929(c) and SSR 96-7p. After naming the Polaski
factors, the ALJ went on to discuss them at some length in the context of
Constable’s case. [Tr. 16-18].
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Constable’s second argument, that the ALJ erred in using Constable’s
activity level as a basis for discounting her credibility, also fails. As the defendant
has pointed out, one of the factors an ALJ is required to consider in evaluating
credibility is the claimant’s daily activities. See 20 C.F.R. § 416.929(c)(3); SSR
96-7P; Buckner, 646 F.3d at 558.
Finally, Constable’s third argument, that the ALJ erred by ignoring the parts
of Constable’s testimony “that detracted from the activities cited by the ALJ,”
appears to be an argument that the ALJ’s credibility determination was not
supported by substantial evidence in the record. I will analyze it accordingly.
With regard to her mental impairments, the ALJ indicated that Constable
claimed she “lacks motivation due to depression,” that her grandmother “has to
push her to go to dr’s appointments,” that she “has days when she won’t want to
shower and get dressed,” and that she experiences panic attacks once or twice
every month. In discounting Constable’s credibility regarding the severity of her
mental impairments,1 the ALJ first noted that the objective medical evidence
showed many of her mental status examinations yielded no significant findings.
She further opined that Constable’s credibility was diminished by the fact that on
several occasions she neglected to comply with her routine treatment regimen by

1

Constable’s argument is directed exclusively at the ALJ’s credibility determination as to the
alleged severity of her mental impairments; therefore, I am not discussing the ALJ’s credibility
determination as to the severity of Constable’s physical impairments.

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failing to keep her doctor’s appointments. The ALJ noted that the record showed
that Constable’s treatment regimen for her mental impairments, when followed,
had been generally effective. See Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir.
2007) (failure to follow a recommended course of treatment weighs against a
claimant’s credibility).
Next, the ALJ opined that Constable reported an ability to engage in daily
and social activities that exceeded the extreme functional limitations she claimed
she had due to her mental impairments. For instance, Constable reported an ability
to perform household tasks associated with independent living, such as taking out
the trash, making her bed, vacuuming, sweeping and doing laundry. Constable
was also able to care for her daughter independently, and she reported having
friends and a strong family support system. Constable claimed she had previously
attended group therapy, and that she attended weekly parenting classes and
monthly narcotics anonymous meetings. In her function report, Constable
indicated that she tries to go to church every Sunday.
ALJ further opined that inconsistencies in the record as a whole diminished
Constable’s credibility. For instance, Constable testified that she had not used
illicit opioids since 2010, but the record documented illicit drug use as recently as

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2012.2 Additionally, the ALJ determined that Constable’s poor work history
detracted from her credibility. The ALJ noted that Constable had been
unemployed or underemployed since well before her alleged onset date. See
Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001) (lack of work history
may indicate a lack of motivation to work rather than a lack of ability); Woolf v.
Shalala, 3 F.3d 1210, 1214 (8th Cir. 1993) (poor work history can lessen
credibility).
“If an ALJ explicitly discredits the claimant's testimony and gives good
reason for doing so, we will normally defer to the ALJ's credibility determination.”
Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir.2003); see also Browning v.
Sullivan, 958 F.2d 817, 821 (8th Cir.1992) (“We will not disturb the decision of an
ALJ who seriously considers, but for good reasons explicitly discredits, a
claimant's testimony of disabling pain.”). Here, the ALJ pointed to substantial
evidence in the record supporting her decision to discount Constable’s subjective
allegations as to the severity of her mental impairments. I will therefore defer to
the ALJ's credibility finding.
The Physical RFC and the Narrative Discussion in Support

2

The ALJ also opined that claimant’s testimony that she had been unable to drive since 2006 due
to a driving under the influence charge was inconsistent with records showing that she was
driving until at least December 2010. I conclude that the records cited by the ALJ do not
demonstrate an inconsistency because Constable only stated that she did not drive at the time she
provided the information. She did not say she had never driven since losing her license in 2006.

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As noted above, Constable also argues that the ALJ erred by not basing her
physical RFC determination on at least some medical evidence and by failing to
include a proper narrative discussion regarding how the evidence supported her
RFC. Because I have already determined that the ALJ must reevaluate the
evidence of record and fashion a new RFC, I will not address these arguments at
this time. However, as stated above, the ALJ’s newly assessed RFC must be based
on some medical evidence in the record and must be accompanied by a discussion
and description of how the evidence supports each RFC conclusion. See Lauer v.
Apfel, 245 F.3d 700, 704 (8th Cir. 2001) and SSR 96–8P.
VII. Conclusion
For the aforementioned reasons, I conclude that the ALJ failed to properly
evaluate the weight to accord the opinions of treating physician Dr. Daniel Vinson,
and therefore her decision was not supported by substantial evidence on the record.
As a result, I will remand for the ALJ to render a decision consistent with this
order.
Accordingly,
IT IS HEREBY ORDERED that the decision of the commissioner is
reversed and remanded under sentence four of 42 U.S.C. § 405(g) for further
proceedings consistent with this Memorandum and Order.

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A separate judgment in accordance with this Memorandum and Order is
entered this same date.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 29th day of September 2015.

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