Rue v. Colvin

Filing 21

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the decision of the Commissioner denying Plaintiff's claim for supplemental security income is REVERSED, and the case is REMANDED to the Commissioner for further proceedings consistent with this Memorandum and Order. Signed by District Judge E. Richard Webber on 6/30/15. (EAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PAMELA G. RUE,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 4:14CV1189 ERW

MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation of United States
Magistrate Judge John M. Bodenhausen [ECF No. 18], pursuant to 28 U.S.C. § 636(b).
I.

PROCEDURAL BACKGROUND
Plaintiff Pamela Rue brought this action pursuant to 42 U.S.C. § 405(g), requesting

judicial review of the decision of Defendant Carolyn W. Colvin, Acting Commissioner of Social
Security (Commissioner), finding she is not “disabled” and denying her application for
supplemental security income. This matter was referred to a United States Magistrate Judge
pursuant to 28 U.S.C. § 636(b)(1). In his Report and Recommendation, Magistrate Judge John
M. Bodenhausen concluded there was substantial evidence supporting the Commissioner’s
findings, and therefore recommended the decision of the Commissioner be affirmed. See, e.g.,
Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002) (role of the reviewing court with
respect to administrative adjudications by the Commissioner of Social Security is to determine
whether the Commissioner’s decision was supported by “substantial evidence”).
Plaintiff timely filed Objections [ECF No. 28] to the Report and Recommendation.

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“[W]hen a party objects to the report and recommendation of a magistrate judge concerning a
dispositive matter, ‘[a] judge of the court shall make a de novo determination of those portions of
the report or specified proposed findings or recommendations to which objection is made.’” U.S.
v. Lothridge, 324 F.3d 599, 600 (8th Cir. 2003) (quoting 28 U.S.C. § 636(b)(1)). Thus, the Court
conducts a de novo review of the matters raised in Plaintiff’s Objections.
II.

DISCUSSION
In her Objections to the Report and Recommendation, Plaintiff argues the Administrative

Law Judge (ALJ) failed to follow the treating physician rule and failed to properly determine
Plaintiff’s Residual Functional Capacity, failed to properly evaluate Plaintiff’s credibility, and
relied on flawed vocational expert testimony.
The Court’s review of the Commissioner’s decision is limited to determining whether the
decision was supported by “substantial evidence in the record as a whole.” Krogmeier, 294 F.3d
at 1022. In assessing the record as a whole, courts “consider evidence that detracts from the
decision, as well as evidence that supports it.” Gates v. Astrue, 627 F.3d 1080, 1082 (8th Cir.
2010). “Substantial evidence is less than a preponderance but is enough that a reasonable mind
would find it adequate to support the Commissioner’s conclusion.” Id. Thus, so long as there is
substantial evidence supporting the decision, the reviewing court may not reverse even if there is
also substantial evidence that would support a contrary outcome. Id.; see also Bland v. Bowen,
861 F.2d 533, 535 (8th Cir. 1988) (“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 [Comissioner] may decide to
grant or deny benefits without being subject to reversal on appeal.”).

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In determining whether an applicant is “disabled” for purposes of the Social Security Act,
the Commissioner applies a five-step sequential analysis. Steps One through Three require the
claimant to prove (1) she is not currently engaged in substantial gainful activity, (2) she suffers
from a severe impairment, and (3) her disability meets or equals a listed impairment. 20 C.F.R. §
416.920(a)(4)(i)-(iii). If the claimant does not suffer from a listed impairment or its equivalent,
the Commissioner’s analysis proceeds to Steps Four and Five. Step Four requires the
Commissioner to consider whether the claimant retains the Residual Functional Capacity (RFC)
to perform her Past Relevant Work (PRW). 20 C.F.R. § 416.920(a)(4)(iv). The claimant bears
the burden of demonstrating she is no longer able to return to her PRW. Pate-Fires v. Astrue,
564 F.3d 935, 942 (8th Cir. 2009). If the Commissioner determines the claimant cannot return to
the PRW, the burden shifts to the Commissioner at Step Five to show the claimant retains the
RFC to perform other work that exists in significant numbers in the national economy. Id.; 20
C.F.R. § 416.920(a)(4)(v).
A.

Dr. Azar Malik and Residual Functional Capacity

Plaintiff argues the ALJ erred in giving little weight to the opinions of treating
psychiatrist Dr. Azfar Malik. Further, Plaintiff asserts the ALJ’s determination of RFC was
without support of substantial evidence in the record.
1.

Dr. Azfar Malik

In his decision, the ALJ considered Dr. Malik’s findings and opinions of limitations but
gave little evidentiary weight to them. Tr. 35-36. The ALJ discounted Dr. Malik’s opinions
because of the inconsistencies in his findings. The ALJ noted the inconsistency between Dr.
Malik’s findings and the Global Assessment of Functioning (“GAF”) score Dr. Malik gave to
Plaintiff. Plaintiff asserts Dr. Malik’s findings are consistent with the treatment records and

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psychiatric findings through a mental examination are appropriate diagnostic evidence for mental
impairments. Further, Plaintiff argues mental limitations are not required to be in a doctor’s
treatment notes. Plaintiff claims the ALJ’s reliance on Plaintiff’s non-compliance with her
medication fails to take into account the influence of mental illness on a patient’s ability to
follow a medication regimen. Lastly, Plaintiff contends the GAF score is consistent with a
finding of disability and is consistent with Dr. Malik’s findings that Plaintiff has restrictions
preventing her from working.
The ALJ did not err in discounting Dr. Malik’s findings and opinions. After a careful
consideration of Dr. Malik’s own findings and records, the ALJ found several inconsistencies
which prevented the ALJ from relying on his conclusions. While Plaintiff is correct mental
disorders are more difficult to substantiate with objective evidence than a physical ailment, the
ALJ did not discount Dr. Malik’s findings for a lack of objective evidence to support the findings
of mental illness. See Blankenship v. Bowen, 874 F.2d 1116, 1121 (6th 1989) (citations omitted).
The ALJ discounted Dr. Malik’s findings because of the inconsistencies within the findings and
his own treatment records concerning Plaintiff. An ALJ may disregard the opinion of a treating
physician, if the physician “renders inconsistent opinions that undermine the credibility of such
opinions.” Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010). The ALJ’s determination Dr.
Malik’s opinion was unreliable is reasonable as there are several inconsistencies in his findings
such as his opinion Plaintiff has a GAF score of 40 but is capable of simple, low stress work.
Another example is his finding Plaintiff’s mental illness was not stabilized with medication
without taking into account Plaintiff’s non-compliance with medication or ongoing drug abuse.
See id. (“A claimant’s noncompliance can constitute evidence that is inconsistent with a treating

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physician’s medical opinion and, therefore, can be considered in determining whether to give
that opinion controlling weight.”) (quoting Owen v. Astrue, 551 F.3d 792, 800 (8th Cir. 2008).
Plaintiff argues a person’s mental illness may contribute to non-compliance with
treatment and non-compliance should not be considered a reason for denying someone disability.
Plaintiff misreads the conclusion of the ALJ. The ALJ does not deny Plaintiff has a disability
because of her failure to take medication. He discounts Dr. Malik’s conclusions because Dr.
Malik failed to take into account Plaintiff’s non-compliance; Dr. Malik makes no attempt to
explain why Plaintiff may not be taking her medications nor does he factor into his analysis her
limitations or possible mental illnesses. Plaintiff’s argument an ALJ must take into account a
claimant’s mental illness as a possible reason for nocompliance with medication is correct but
inapplicable here.
Plaintiff also asserts the ALJ found Dr. Malik’s opinions inconsistent with treatment
notes because the records did not document mental limitations as described in Dr. Malik’s formal
report. See Orn v. Astrue, 495 F.3d 625, 634 (9th Cir. 2007) (“The primary function of medical
records is to promote communication and recordkeeping for health care personnel – not to
provide evidence for disability determinations. We therefore do not require that a medical
condition be mentioned in every report to conclude that a physician’s opinion is supported by the
record.”). Once again, Plaintiff’s argument misreads the ALJ’s conclusions. The ALJ did not
state Dr. Malik failed to document mental limitations in the treatment records. The ALJ found
the treatment records do not “document ongoing abnormal mental status examination findings
despite compliance with treatment.” Tr. 35. The issue on which the ALJ is focusing is whether
treatment worked, whether Plaintiff’s abnormal mental status examination findings continued
with the use of treatment. The issue is not whether mental limitations, which are used to

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determine if a claimant has a disability in litigation, were found in the treatment records. 1 The
ALJ did note a lack of limitations in Dr. Malik’s final report. The ALJ’s findings are
appropriate; he did not discount Dr. Malik’s opinion because of a lack of documentation of
mental limitations in treatment records.
Lastly, Plaintiff contends the ALJ’s finding of inconsistencies between Plaintiff’s GAF
score and Dr. Malik’s opinions is wrong. Plaintiff reads the ALJ’s opinion to state a person with
a GAF score of 40 is inconsistent with a finding of disability. However, the ALJ’s opinion is the
opposite. The ALJ finds an inconsistency between the low GAF score of 40, which indicates
serious impairment in social, occupational, or school functioning, and Dr. Malik’s opinion
Plaintiff can handle simple, low stress work. Substantial evidence supports the ALJ’s decision to
discredit Dr. Malik’s opinion.
2.

RFC Score

Next, Plaintiff asserts the ALJ’s RFC finding is without the support of substantial
evidence in the record. “The RFC assessment must include a narrative discussion describing
how the evidence supports each conclusion, citing specific medical facts . . . and nonmedical
evidence . . .” SSR 96-8p, 1996 WL 374184. The ALJ must discuss the claimant’s “ability to
perform sustained work activities in an ordinary work setting on a regular and continuing basis . .
.” Id. The ALJ’s RFC finding is with the support of substantial evidence in the record and
includes detailed findings citing specific medical facts and nonmedical evidence. After an
extensive summary of Plaintiff’s medical history and analysis of the credibility of each piece of
evidence, the ALJ then details his RFC findings more specifically. For example, in concluding

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Although the Magistrate Judge references the lack of mental limitations in the treatment
records, the ALJ focused on the lack of documentation of an abnormal mental status despite
treatment.
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Plaintiff is limited to a light level of work, the ALJ lists the lack of objective medical findings by
treating physicians of significant deficits in strength, neurological function, range of motion,
posture, sensation, reflexes, pulses or gait, abilities to squat, stand, walk, sit, lift, carry, bend or
stoop; long-term significant atrophy or spasm; required use of a cane or brace; treatment on a
regular basis for pain; or reports of significant pain behaviors or abnormal breathing, elevated
blood pressure or uncomfortable movement. Tr. 38. The ALJ stated “it is only after giving the
claimant the great benefit of the doubt that the undersigned finds the claimant’s back and neck
impairment severe and limits the claimant to a light level of work.” Tr. 38. Each finding in the
RFC assessment is supported by a similar explanation. Tr. 37-39. These detailed explanations,
combined with the thorough review and consideration of Plaintiff’s medical history in the
paragraphs immediately preceding the RFC assessment are sufficient to satisfy the standard
required in SSR 96-8p.
B.

Ms. Rue’s Credibility Determination

Plaintiff’s second objection is the ALJ failed to properly evaluate Plaintiff’s credibility.
Specifically, Plaintiff asserts the ALJ’s reference to non-compliance was inappropriate because
her noncompliance with treatment can be linked to her mental conditions. Plaintiff also argues
there is not a lack of objective testing because there is extensive evidence of mental status
abnormalities which is sufficient. Lastly, Plaintiff contends her sporadic work history is due to
her psychiatric impairments, not a lack of motivation to work.
In assessing a claimant’s credibility, the ALJ must consider “the claimant’s prior work
history; daily activities; duration, frequency, and intensity of pain; dosage, effectiveness and side
effects of medication; precipitating and aggravating factors; and functional restrictions.”
Halverson v. Astrue, 600 F.3d 922, 931 (8th Cir. 2010) (quoting Polaski v. Heckler, 739 F.2d

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1320 (8th Cir. 1984)). The ALJ should also consider the absence of objective medical evidence.
Id. A claimant’s credibility is for the Commissioner, not the Court, to decide. Lewis v. Colvin,
973 F. Supp. 2d 985, 1002 (E.D.Mo. Sept. 20, 2013) (citing Benskin v. Bowen, 830 F.2d 878,
882 (8th Cir. 1987). The ALJ found Plaintiff was not credible because of the lack of objective
medical findings supporting many of her complaints, her financial motivations, noncompliance
with medications, her lack of candor about her drug and alcohol abuse, and her failure to seek
medical treatment at various times. See Gray v. Apfel, 192 F.3d 799, 803-804 (8th Cir. 1999)
(ALJ properly discredited claimant’s subjective complaints based on inconsistencies with the
medical evidence, daily activities, statements, and treatment).
The ALJ’s credibility determination details a long list of Plaintiff’s complaints which are
lacking objective medical evidence to support them, including physical and mental complaints.
In reference to Plaintiff’s mental illness complaints, the ALJ found the medical records do not
document psychiatric hospitalization, ongoing treatment with a psychiatrist, psychologist, or
counselor, and the medical records do not note any significant abnormalities or deficits with
respect to mood, affect, thought processes, concentration, attention, pace, persistence, social
interaction, activities of daily living, speech, psychomotor activity, focus, contact with reality,
eye contact, orientation, demeanor, abilities to cope with stress, abilities to work without
decompensation, abilities to understand and follow instructions, judgment, insight, cognitive
function or behavior, lasting twelve months in duration, and despite strict compliance with
treatment. Tr. 38-39. Additionally, there is no documentation of Plaintiff’s attempts to seek
more aggressive treatment. Plaintiff argues there is extensive evidence of mental status
abnormalities that is sufficient objective evidence. While there is some evidence of mental status
abnormalities, there is no evidence of significant mental limitations. Additionally, even without

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any evidence, the ALJ still found Plaintiff’s mental impairments to be severe and limited her to
simple work. See Gonzales v. Barnhart, 465 F.3d 890, 895 (8th Cir. 2006) (“[A]n ALJ is
entitled to make a factual determination that a claimant’s subjective pain complaints are not
credible in light of objective medical evidence to the contrary.”) (internal citations omitted).
Plaintiff also objects to the ALJ’s reliance on Plaintiff’s noncompliance with treatment in
finding her not credible. Plaintiff asserts the ALJ should have considered the effect of her
mental illness on complying with treatment. The ALJ should take into consideration whether a
person’s mental illness is causing the noncompliance with treatment. See Pates-Fires v. Astrue,
564 F.3d 935, 945-46 (8th Cir. 2009) (“. . . non-compliance with medications can be and usually
is, the result of the mental impairment itself . . .”). However, even the reports from medical
experts, including Dr. Malik’s, do not connect Plaintiff’s noncompliance with any mental illness.
While the ALJ should not have so easily discounted Plaintiff’s noncompliance, the determination
of credibility is well-supported by other facts in the record, such as Plaintiff’s financial
motivations for benefits.
Plaintiff has filed for disability benefits seven times from 1989 to the present. She has a
poor work history and inconsistent earnings. Plaintiff stated she stopped taking her medications
because her insurance was cut off but there is no evidence she attempted to secure any services
offered to indigents for treatment. See Ramirez v. Barnhart, 292 F.3d 576, 581-82 (8th Cir.
2002) (poor prior work record and financial motivation, along with other factors, may contribute
to an adverse credibility determination). Additional evidence of Plaintiff’s motivations include a
suspicious prescription note stating Plaintiff cannot work due to her bipolar illness and other
medical issues dated August 17, 2011, signed by Dr. Malik when Plaintiff’s treatment with Dr.
Malik did not begin until November 11, 2011. Plaintiff also had an interview with a DDS

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interviewer in which she claimed extreme pain and an inability to sit down but managed to sit
through the 72 minute interview without standing up. The ALJ conducted a thorough Polaski
analysis of Plaintiff’s credibility and the credibility determination is supported by substantial
evidence on the record as a whole. See Ramirez, 292 F.3d at 581-82.
C.

Vocational Expert Testimony

Plaintiff’s final objection is the ALJ presented a hypothetical question to the vocational
expert which did not include all of Plaintiff’s restrictions. Plaintiff asserts the question did not
include evidence from Dr. Malik, nor did the question account for the ALJ’s finding Plaintiff has
moderate difficulties in concentration, persistence or pace. A hypothetical question posed to a
vocational expert is required to include only those impairments accepted as true by the ALJ.
Pearsall v. Massanari, 274 F.3d 1211, 1220 (8th Cir. 2001). The ALJ had discredited Dr.
Malik’s findings because of inconsistencies in the record; thus, the ALJ was not required to
include those findings in the hypothetical posed to the vocational expert.
The purpose of a hypothetical question is to clearly present to the vocational expert, a set
of limitations mirroring those of Plaintiff. Roe v. Chater, 92 F.3d 672, 676 (8th Cir. 1996). The
ALJ does not have to use specific diagnostic or symptomatic terms if other descriptive terms can
define the impairments. Id. The ALJ found Plaintiff has moderate difficulties with
concentration, persistence, or pace. 2 Tr. 32. These were not included in the hypothetical

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The Magistrate Judge was correct that the ALJ did not find the medical treatment notes
documented any observations of significant abnormalities or deficits with respect to
concentration, pace, or persistence. However, the ALJ did find moderate difficulties in
concentration, persistence, or pace, which is required to be included in the hypothetical. See
Newton v. Chater, 92 F.3d 688, 695 (8th Cir. 1996) (remanding the decision back to the ALJ for
failure to include in the hypothetical question moderate difficulties in pace, persistence, or
concentration).
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question posed to the vocational expert, nor were any other descriptive terms used. The ALJ
posed the hypothetical as:
“The claimant’s medical record and testimony suggest that she’s functionally
limited to light exertional work. She should avoid ropes, ladders, and
scaffolding. She can occasionally do stooping, crouching, and crawling. She
should avoid fumes, odors, dusts, and gasses. And she is limited to unskilled
work.”
This hypothetical is not sufficient and cannot constitute substantial evidence to support a finding
of no disability because it does not include all of Plaintiff’s limitations found by the ALJ. See
Newton v. Chater, 92 F.3d 688, 695 (8th Cir. 1996) (finding a hypothetical which does not
mention deficiencies in concentration, persistence, or pace, cannot constitute substantial
evidence to support the decision.). Any hypothetical question on remand should include
Plaintiff’s deficiencies of concentration, persistence, or pace.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner denying Plaintiff’s
claim for supplemental security income is REVERSED, and the case is REMANDED to the
Commissioner for further proceedings consistent with this Memorandum and Order.
Dated this 30th Day of June, 2015.

E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE

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