Loggins v. Colvin
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the relief sought by Plaintiff in her Complaint, Brief in Support of Complaint, and Reply (Docs. 1, 15, 21) is DENIED; IT IS ORDERED that a separate judgment be entered incorporating this Memorandum and Order. Dated this 4th day of June 2015. Signed by Magistrate Judge Noelle C. Collins on 6/4/15. (JWJ)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN,
Acting Commissioner of Social Security, )
Case No. 4:14CV1362NCC
MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the
final decision of the Commissioner denying the application of Tanya Loggins
(Plaintiff) for Disability Insurance Benefits (DIB) under Title II of the Social
Security Act (the Act), 42 U.S.C. §§ 401 et seq., and for Supplemental Security
Income (SSI), under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381 et
seq. Plaintiff has filed a brief in support of the Complaint. (Doc. 15). Defendant
has filed a brief in support of the Answer. (Doc. 20). Plaintiff has filed a Reply.
(Doc. 21). The parties have consented to the jurisdiction of the undersigned
United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c). (Doc. 10).
On October 11, 2011, Plaintiff filed her applications for DIB and SSI. (Tr.
13, 28, 86-88). Plaintiff alleged a disability onset date of September 1, 2009.
Plaintiff’s applications were denied, and she requested a hearing before an
Administrative Law Judge (ALJ).
(Tr. 10-13, 28-29).
After a hearing, by
decision, dated May 31, 2013, the ALJ found Plaintiff not disabled. (Tr. 13-27).
On June 2, 2014, the Appeals Council denied Plaintiff’s request for review. (Tr.
As such, the ALJ’s decision stands as the final decision of the
Under the Social Security Act, the Commissioner has established a five-step
process for determining whether a person is disabled. 20 C.F.R. §§ 416.920,
404.1529. “‘If a claimant fails to meet the criteria at any step in the evaluation of
disability, the process ends and the claimant is determined to be not disabled.’”
Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting Eichelberger v.
Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the
claimant first cannot be engaged in “substantial gainful activity” to qualify for
disability benefits. 20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant
must have a severe impairment. 20 C.F.R. §§ 416.920(c), 404.1520(c). The
Social Security Act defines “severe impairment” as “any impairment or
combination of impairments which significantly limits [claimant’s] physical or
mental ability to do basic work activities.” Id. “The sequential evaluation process
may be terminated at step two only when the claimant’s impairment or
combination of impairments would have no more than a minimal impact on [his
or] her ability to work.” Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007)
(quoting Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir. 2001) (citing Nguyen
v. Chater, 75 F.3d 429, 430-31 (8th Cir. 1996)).
Third, the ALJ must determine whether the claimant has an impairment
which meets or equals one of the impairments listed in the Regulations. 20 C.F.R.
§§ 416.920(d), 404.1520(d); pt. 404, subpt. P, app. 1. If the claimant has one of,
or the medical equivalent of, these impairments, then the claimant is per se
disabled without consideration of the claimant’s age, education, or work history.
Fourth, the impairment must prevent the claimant from doing past relevant
work. 20 C.F.R. §§ 416.920(f), 404.1520(f). The burden rests with the claimant
at this fourth step to establish his or her Residual Functional Capacity (RFC). See
Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008) (“Through step four of this
analysis, the claimant has the burden of showing that she is disabled.”);
Eichelberger, 390 F.3d at 590-91; Masterson v. Barnhart, 363 F.3d 731, 737 (8th
Cir. 2004); Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). The ALJ
will review a claimant’s RFC and the physical and mental demands of the work
the claimant has done in the past. 20 C.F.R. § 404.1520(f).
Fifth, the severe impairment must prevent the claimant from doing any
other work. 20 C.F.R. §§ 416.920(g), 404.1520(g). At this fifth step of the
sequential analysis, the Commissioner has the burden of production to show
evidence of other jobs in the national economy that can be performed by a person
with the claimant’s RFC. See Steed, 524 F.3d at 874 n.3; Young, 221 F.3d at
1069 n.5. If the claimant meets these standards, the ALJ will find the claimant to
be disabled. “The ultimate burden of persuasion to prove disability, however,
remains with the claimant.” Id. See also Harris v. Barnhart, 356 F.3d 926, 931
n.2 (8th Cir. 2004) (citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v.
Barnhart, 377 F.3d 801, 806 (8th Cir. 2004) (“The burden of persuasion to prove
disability and to demonstrate RFC remains on the claimant, even when the burden
of production shifts to the Commissioner at step five.”); Charles v. Barnhart, 375
F.3d 777, 782 n.5 (8th Cir. 2004) (“[T]he burden of production shifts to the
Commissioner at step five to submit evidence of other work in the national
economy that [the claimant] could perform, given her RFC.”). Even if a court
finds that there is a preponderance of the evidence against the ALJ’s decision, the
decision must be affirmed if it is supported by substantial evidence. See Clark v.
Heckler, 733 F.2d 65, 68 (8th Cir. 1984). “Substantial evidence is less than a
preponderance but is enough that a reasonable mind would find it adequate to
support the Commissioner’s conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019,
1022 (8th Cir. 2002). See also Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007).
In Bland v. Bowen, 861 F.2d 533, 535 (8th Cir. 1988), the Eighth Circuit Court of
The concept of substantial evidence is something less than the weight
of the evidence and it allows for the possibility of drawing two
inconsistent conclusions, thus it embodies a zone of choice within
which the Secretary may decide to grant or deny benefits without
being subject to reversal on appeal.
See also Lacroix v. Barnhart, 465 F.3d 881, 885 (8th Cir. 2006) (“[W]e may not
reverse merely because substantial evidence exists for the opposite decision.”)
(quoting Johnson v. Chater, 87 F.3d 1015, 1017 (8th Cir. 1996)); Hartfield v.
Barnhart, 384 F.3d 986, 988 (8th Cir. 2004) (“[R]eview of the Commissioner’s
final decision is deferential.”).
It is not the job of the district court to re-weigh the evidence or review the
factual record de novo. See Cox, 495 F.3d at 617; Guilliams v. Barnhart, 393
F.3d 798, 801 (8th Cir. 2005); McClees v. Shalala, 2 F.3d 301, 302 (8th Cir.
1993); Murphy v. Sullivan, 953 F.2d 383, 384 (8th Cir. 1992). Instead, the district
court must simply determine whether the quantity and quality of evidence is
enough so that a reasonable mind might find it adequate to support the ALJ’s
See Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing
McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). Weighing the evidence is
a function of the ALJ, who is the fact-finder. See Benskin v. Bowen, 830 F.2d
878, 882 (8th Cir. 1987). See also Onstead v. Sullivan, 962 F.2d 803, 804 (8th
Cir. 1992) (holding that an ALJ’s decision is conclusive upon a reviewing court if
it is supported by “substantial evidence”). Thus, an administrative decision which
is supported by substantial evidence is not subject to reversal merely because
substantial evidence may also support an opposite conclusion or because the
reviewing court would have decided differently. See Krogmeier, 294 F.3d at
1022. See also Eichelberger, 390 F.3d at 589; Nevland v. Apfel, 204 F.3d 853,
857 (8th Cir. 2000) (quoting Terrell v. Apfel, 147 F.3d 659, 661 (8th Cir. 1998));
Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir. 2001).
To determine whether the Commissioner’s final decision is supported by
substantial evidence, the court is required to review the administrative record as a
whole and to consider:
(1) Findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating physicians;
(4) The subjective complaints of pain and description of the claimant’s
physical activity and impairment;
(5) The corroboration by third parties of the claimant’s physical
(6) The testimony of vocational experts based upon proper hypothetical
questions which fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dep’t of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir.
1980); Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989).
Additionally, an ALJ’s decision must comply “with the relevant legal
requirements.” Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008).
The Social Security Act defines disability as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
416(i)(1)(A); 42 U.S.C. § 423(d)(1)(A). “While the claimant has the burden of
proving that the disability results from a medically determinable physical or
mental impairment, direct medical evidence of the cause and effect relationship
between the impairment and the degree of claimant’s subjective complaints need
not be produced.” Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
When evaluating evidence of pain, the ALJ must consider:
(1) the claimant’s daily activities;
(2) the subjective evidence of the duration, frequency, and intensity of the
(3) any precipitating or aggravating factors;
(4) the dosage, effectiveness, and side effects of any medication; and
(5) the claimant’s functional restrictions.
Baker v. Sec’y of Health & Human Servs., 955 F.2d. 552, 555 (8th Cir. 1992);
Polaski, 739 F.2d at 1322.
The absence of objective medical evidence is just one factor to be
considered in evaluating the plaintiff’s credibility. See id. The ALJ must also
consider the plaintiff’s prior work record, observations by third parties and
treating and examining doctors, as well as the plaintiff’s appearance and demeanor
at the hearing. See Polaski, 739 F.2d at 1322; Cruse, 867 F.2d at 1186.
The ALJ must make express credibility determinations and set forth the
inconsistencies in the record which cause him to reject the plaintiff’s complaints.
See Guilliams, 393 F.3d at 801; Masterson, 363 F.3d at 738; Lewis v. Barnhart,
353 F.3d 642, 647 (8th Cir. 2003); Hall v. Chater, 62 F.3d 220, 223 (8th Cir.
1995). It is not enough that the record contains inconsistencies; the ALJ must
specifically demonstrate that he considered all of the evidence. Robinson v.
Sullivan, 956 F.2d 836, 841 (8th Cir. 1992); Butler v. Sec’y of Health & Human
Servs., 850 F.2d 425, 429 (8th Cir. 1988). The ALJ, however, “need not explicitly
discuss each Polaski factor.” Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th
Cir. 2004). See also Steed, 524 F.3d at 876 (citing Lowe v. Apfel, 226 F.3d 969,
972 (8th Cir. 2000)). The ALJ need only acknowledge and consider those factors.
See id. Although credibility determinations are primarily for the ALJ and not the
court, the ALJ’s credibility assessment must be based on substantial evidence.
See Rautio v. Bowen, 862 F.2d 176, 179 (8th Cir. 1988); Millbrook v. Heckler,
780 F.2d 1371, 1374 (8th Cir. 1985).
RFC is defined as what the claimant can do despite his or her limitations, 20
C.F.R. § 404.1545(a)(1), and includes an assessment of physical abilities and
mental impairments. 20 C.F.R. § 404.1545(b)-(e). The Commissioner must show
that a claimant who cannot perform his or her past relevant work can perform
other work which exists in the national economy. See Karlix v. Barnhart, 457
F.3d 742, 746 (8th Cir. 2006); Nevland, 204 F.3d at 857 (citing McCoy v.
Schweiker, 683 F.2d 1138, 1146-47 (8th Cir. 1982) (en banc)).
Commissioner must first prove that the claimant retains the RFC to perform other
kinds of work. See Goff, 421 F.3d at 790; Nevland, 204 F.3d at 857. The
Commissioner has to prove this by substantial evidence. Warner v. Heckler, 722
F.2d 428, 431 (8th Cir. 1983).
Second, once the plaintiff’s capabilities are
established, the Commissioner has the burden of demonstrating that there are jobs
available in the national economy that can realistically be performed by someone
with the plaintiff’s qualifications and capabilities. See Goff, 421 F.3d at 790;
Nevland, 204 F.3d at 857.
To satisfy the Commissioner’s burden, the testimony of a vocational expert
(VE) may be used. An ALJ posing a hypothetical to a VE is not required to
include all of a plaintiff’s limitations, but only those which he finds credible. See
Goff, 421 F.3d at 794 (“[T]he ALJ properly included only those limitations
supported by the record as a whole in the hypothetical.”); Rautio, 862 F.2d at 180.
Use of the Medical-Vocational Guidelines is appropriate if the ALJ discredits the
plaintiff’s subjective complaints of pain for legally sufficient reasons. See Baker
v. Barnhart, 457 F.3d 882, 894-95 (8th Cir. 2006); Carlock v. Sullivan, 902 F.2d
1341, 1343 (8th Cir. 1990); Hutsell v. Sullivan, 892 F.2d 747, 750 (8th Cir. 1989).
The issue before the court is whether substantial evidence supports the
Commissioner’s final determination that Plaintiff was not disabled. See Onstead,
962 F.2d at 804. Thus, even if there is substantial evidence that would support a
decision opposite to that of the Commissioner, the court must affirm her decision
as long as there is substantial evidence in favor of the Commissioner’s position.
See Cox, 495 F.3d at 617; Krogmeier, 294 F.3d at 1022.
Plaintiff claimed she became disabled on September 2, 2009, at the age of
38, due to difficulty understanding, thoughts of suicide, depression and
hypertension. (Tr. 86, 114). At the hearing, Plaintiff testified that she sometimes
had problems communication with people; she like to stay to herself; she heard
“things a lot and sometimes when [she] react[ed] on it” she got in trouble; she
would get depressed “a lot that sometimes [she] just start[s] crying”; and, if she
did not take her medicine, she would become “upset real quick and then [she]
[would] want to fight and then the people [would] call the police on [her].” (Tr.
359). Plaintiff also testified that she took medication for high blood pressure and
Aleve for pain. (Tr. 360).
The ALJ found that Plaintiff met the insured status requirements through
December 31, 2013; that she had not engaged in substantial gainful activity since
September 1, 2009, her alleged onset date; that Plaintiff had the severe
impairments of obesity, bipolar disorder, borderline intellectual functioning, and
knee pain; that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled a listed impairment; that Plaintiff had
the RFC to perform a range of medium work, in that she could follow simple
instructions in a low stress environment with limited social interaction; Plaintiff
could perform her past relevant work as an office cleaner; that, based on the
testimony of a VE, there was also other work in the national economy which
Plaintiff could perform; and that, therefore, Plaintiff was not disabled within the
meaning of the Act.
Plaintiff contends that the ALJ’s decision is not based on substantial
evidence because the ALJ did not give proper weight to the opinions of Michael
Armour, Ph.D., who conducted a consultative examination of Plaintiff, Terry
Dunn, Ph.D, the State agency psychiatric consultant, and Veronica Banks,
Plaintiff’s niece. Plaintiff also contends that the ALJ did not properly consider her
credibility, as required by Social Security Ruling (SSR) 96-7p, because the ALJ
did not discuss inconsistencies between Plaintiff’s testimony and the third-party
statement of her cousin, Ms. Banks. (Doc 20). For the following reasons, the
court finds that Plaintiff’s arguments are without merit and that the ALJ’s decision
is based on substantial evidence.
The court will first address the ALJ’s credibility findings as Plaintiff’s
credibility is relevant to other factors, including the weight given to opinions of
See Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir. 2010) (A[The
plaintiff] fails to recognize that the ALJ's determination regarding her RFC was
influenced by his determination that her allegations were not credible.@) (citing
Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005)); 20 C.F.R. §§ 404.1545,
416.945 (2010). As set forth more fully above, the ALJ=s credibility findings
should be affirmed if they are supported by substantial evidence on the record as a
whole; a court cannot substitute its judgment for that of the ALJ. See Guilliams v.
Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); Hutsell, 892 F.2d at 750; Benskin,
830 F.2d at 882.
To the extent that the ALJ did not specifically cite Polaski, other case law,
and/or Regulations relevant to a consideration of Plaintiff=s credibility, this is not
necessarily a basis to set aside an ALJ=s decision where the decision is supported
by substantial evidence. Randolph v. Barnhart, 386 F.3d 835, 842 (8th Cir. 2004);
Wheeler v. Apfel, 224 F.3d 891, 895 n.3 (8th Cir. 2000); Reynolds v. Chater, 82
F.3d 254, 258 (8th Cir. 1996); Montgomery v. Chater, 69 F.3d 273, 275 (8th Cir.
1995). Additionally, an ALJ need not methodically discuss each Polaski factor if
the factors are acknowledged and examined prior to making a credibility
determination; where adequately explained and supported, credibility findings are
for the ALJ to make. See Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000). See
also Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir. 2004) (AThe ALJ is not
required to discuss each Polaski factor as long as the analytical framework is
recognized and considered.@); Strongson, 361 F.3d at 1072; Brown v. Chater, 87
F.3d 963, 966 (8th Cir. 1996).
In any case, A[t]he credibility of a claimant=s subjective testimony is
primarily for the ALJ to decide, not the courts.@ Pearsall v. Massanari, 274 F.3d
1211, 1218 (8th Cir. 2001).
AIf an ALJ explicitly discredits the claimant=s
testimony and gives good reason for doing so, [a court] will normally defer to the
ALJ=s credibility determination.@ Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir.
2003). See also Halverson v. Astrue, 600 F.3d 922, 932 (8th Cir. 2010); Cox v.
Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). For the following reasons, the court
finds that the reasons offered by the ALJ in support of his credibility
determination are based on substantial evidence.
First, the ALJ considered that no medical source who examined Plaintiff
found limitations consistent with disability. (Tr. 25). Indeed, a lack of significant
restrictions imposed by a claimant’s doctors is consistent with a finding that the
claimant is not disabled. See Young v. Apfel, 221 F.3d 1065, 1069 (8th Cir.
2000) (AWe find it significant that no physician who examined Young submitted a
medical conclusion that she is disabled and unable to perform any type of work.@)
(citing Brown v. Chater, 87 F.3d 963, 964-65 (8th Cir. 1996)).
Eichelberger, 390 F.3d at 590 (ALJ could find claimant not credible based in part
on fact that no physician imposed any work related restrictions).
Second, the ALJ considered that Plaintiff’s self-reported activities of daily
living were inconsistent with the extreme limitations which she claimed she had.
(Tr. 24). While the undersigned appreciates that a claimant need not be bedridden
before she can be determined to be disabled, a claimant’s daily activities can
nonetheless be seen as inconsistent with her subjective complaints of a disabling
impairment and may be considered in judging the credibility of complaints. See
McDade v. Astrue, 720 F.3d 994, 998 (8th Cir. 2013) (ALJ properly discounted
plaintiff’s credibility where, among other factors, plaintiff “was not unduly
restricted in his daily activities, which included the ability to perform some
cooking, tak[ing] care of his dogs, us[ing] a computer, driv[ing] with a neck brace,
and shop[ping] for groceries with the use of an electric cart”). See also Ponders v.
Colvin, 770 F.3d 1190 (8th Cir. 2014) (holding that substantial evidence
supported the ALJ’s denial of disability benefits in part because claimant
“performs light housework, washes dishes, cooks for her family, does laundry, can
handle money and pays bills, shops for groceries and clothing, watches television,
drives a vehicle, leaves her house alone, regularly attends church, and visits her
family”); Roberson v. Astrue, 481 F.3d, 1020, 1025 (8th Cir. 2007) (holding that
the ALJ’s denial of benefits was supported based in part because Plaintiff fixed
meals, did housework, shopped for grocers, and visited friends).
Moreover, to the extent Plaintiff urges the court to reweigh the evidence
regarding Plaintiff’s daily activities and draw its own conclusion in this regard, it
is not the function of the court to do so. See Bates v. Chater, 54 F.3d 529, 531-32
(8th Cir. 1995) (“As we have stated many times, we do not reweigh the evidence
presented to the ALJ, and it is the statutory duty of the ALJ, in the first instance,
to assess the credibility of the claimant and other witnesses.”) (internal citations,
punctuation, and quotations omitted). In any case, Plaintiff’s daily activities were
only one of many factors considered by the ALJ when determining Plaintiff’s
credibility. (Tr. 19-25).
Notably, as considered by the ALJ, Plaintiff stated in a Function Report –
Adult that she bought food; she sometimes played with her children, cooked, and
did laundry, she drove a car and went out alone, although she did not like being
alone or driving “to[o] much”; she spent time with others, watching television or
movies; and she attended church on a regular basis. Plaintiff also indicated that
she did not have problems squatting, bending, reaching, sitting, talking, hearing,
concentrating, and using her hands.
At the hearing, Plaintiff
testified that she usually went places with others, mostly her children; that, on a
good day, she would cook; that she sometimes tried to do crossword puzzles; that
she played with her grandbaby; and that she tried to play solitaire. (Tr. 366-68).
Also, it was noted, in September 2012, that Plaintiff lived independently. (Tr.
Third, the ALJ considered that Plaintiff’s treatment notes often reflected
unremarkable mental status examinations. (Tr. 22-23). See Orrick v. Sullivan,
966 F.2d 368, 372 (8th Cir. 1992) (holding that an ALJ may discredit a claimant=s
subjective complaints where there are inconsistencies in the record; the ALJ may
give more weight to the medical records than to a claimant=s testimony); Russell
v. Sullivan, 950 F.2d 542, 545 (8th Cir. 1991). In this regard, an Initial Intake
Assessment from the Hopewell Center (Hopewell), completed in February 2012,
reflects that Plaintiff was appropriately dressed; she had appropriate affect and her
mood was stable; her recent and remote memory were intact; she was oriented to
person, time, and place; Plaintiff’s basic fund of knowledge was adequate; and she
had insight to her history. (Tr. 299-303). In addition, April 2012 progress notes
from the Hopewell Center reflect that Plaintiff was cooperative and calm and had
good eye contact, coherent speech, appropriate affect and mood, adequate impulse
control, intact thought process, and good memory, insight, judgment and sleep
pattern. (Tr. 280). At other times, Plaintiff’s concentration, memory, judgment
and insight were reported as fair and it was noted that she had sleeplessness. (Tr.
282, 284, 286).
A September 2012 Adult Assessment from the Hopewell, which was signed
by S.A. Raza, M.D., states that Plaintiff’s appearance and behavior were
appropriate; Plaintiff was oriented to person, place, and time; her mood, affect,
thought content, speech, and motor activity were appropriate; Plaintiff had good
eye contact; she was not a current danger to herself or others; and her insight and
judgment were fair.
In November 2012, Dr. Raza reported that
Plaintiff was cooperative; her eye contact was fair; her psychomotor activity was
calm; her speech was coherent; her affect and impulse control were appropriate;
her mood was angry; her thought process was intact; her perceptions were normal;
and her concentration, memory, judgment, and insight were fair. (Tr. 320). Dr.
Raza reported, in January 2013, that Plaintiff was cooperative and had good eye
contact, calm psychomotor activity, soft speech, adequate affect, adequate impulse
control, intact thought process, normal perceptions, fair concentration, memory,
and judgment, and good sleep pattern. (Tr. 318).
Fourth, although Plaintiff was hospitalized in 2011 when she tried to
commit suicide, as of September 2012, she had not been hospitalized for the prior
twelve months. (Tr. 295). See Dukes v. Barnhart, 436 F.3d 923, 928 (8th Cir.
2006) (upholding an ALJ’s determination that claimant lacked credibility due in
part to “absence of hospitalizations . . . , limited treatment of symptoms, [and]
failure to diligently seek medical care”); 20 C.F.R. § 404.1529(c)(3)(v) (the
agency will consider the claimant’s treatment when evaluating her symptoms);
Roberts v. Apfel, 222 F.3d 466, 469 (8th Cir. 2000) (citing Dixon v. Sullivan, 905
F.2d 237, 238 (8th Cir. 1990)).
Fifth, it was noted by health care providers that Plaintiff was non-compliant
with treatment recommendations. In this regard, it was reported, in February
2012, that Plaintiff had not taken her medications for over two years. (Tr. 303).
See Wildman v. Astrue, 596 F.3d 959, 964-65 (8th Cir. 2010) (noncompliance is a
basis for discrediting a claimant; when claimant was compliant with dietary
recommendations his pain was under good control).
Sixth, the ALJ considered what Plaintiff told medical providers. (Tr. 2324). Notably, in November 2012, Plaintiff said she was doing “so-so” (Tr. 320),
and, in January 2013, Plaintiff said she was doing “ok” (Tr. 318). Contradictions
between a claimant=s sworn testimony and what she actually told physicians
weighs against the claimant=s credibility. Karlix v. Barnhart, 457 F.3d 742, 748
(8th Cir. 2006).
Seventh, as considered by the ALJ, when Plaintiff presented at Hopewell, in
November 2012, she complained of financial problems. (Tr. 320). The court
notes that situational depression is not disabling. See Dunahoo v. Apfel, 241 F.3d
1033, 1039-40 (8th Cir. 2001) (holding that depression was situational and not
disabling because it was due to denial of food stamps and workers compensation
and because there was no evidence that it resulted in significant functional
Eighth, the court notes that Plaintiff told Dr. Armour that Prozac helped her
“feel sad not so much.”
Conditions which can be controlled by
treatment are not disabling. See Renstrom v. Astrue, 680 F.3d 1057, 1066 (8th
Cir. 2012) (quoting Brown v. Astrue, 611 F.3d 941, 955 (8th Cir. 2010));
Davidson v. Astrue, 578 F.3d 838, 846 (8th Cir. 2009); Medhaug v. Astrue, 578
F.3d 805, 813 (8th Cir. 2009); Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir.
2007) (holding that if an impairment can be controlled by treatment, it cannot be
Ninth, as considered by the ALJ, Plaintiff did not receive the type of
medical treatment one would expect for a totally disabled individual in that
Plaintiff received treatment for her mental impairment from a nurse practitioner
and not a psychiatrist. (Tr. 24, 280-92). Conservative treatment is consistent with
discrediting a claimant=s allegation of disabling pain. Kamann v. Colvin, 721 F.3d
945, 950-51 (8th Cir. 2012)
Tenth, as considered by the ALJ, Plaintiff’s niece, Ms. Banks, stated in a
Third Party Function Report, dated November 5, 2011, that Plaintiff had good and
bad days; on good days, Plaintiff could cook, clean, and go shopping; Plaintiff
could do puzzles, watch movies, and play video games; Plaintiff was unable to
finish tasks; she had difficulty being around large groups of people; Plaintiff was
able to go to church; and Plaintiff had a bad shoulder and was unable to walk
more than two blocks before she is tired. Ms. Banks also reported that Plaintiff
drove a car, went out alone, shopped in stores for food and household supplies,
and paid bills. (Tr. 20, 111-18).
Plaintiff argues that the ALJ erred by not specifying the weight he gave to
the Third Party Function Report completed by Ms. Banks, by failing to explain
why he did not rely on Ms. Banks’s opinion, and by his not going into greater
detail regarding Ms. Banks’s opinion. While the Eighth Circuit Court of Appeals
has frequently criticized the failure of an ALJ to consider subjective testimony of
family members and others and while such testimony must be considered, no case
directs that reversal is appropriate where an ALJ fails to specifically do so when
he has discredited the testimony of the claimant. See e.g., Rautio v. Bowen, 862
F.2d 176, 180 (8th Cir. 1988). Smith v. Heckler, 735 F.2d 312, 317 (8th Cir.
1984). Moreover, the ALJ may discount corroborating testimony on the same
basis used to discredit a claimant=s testimony. See Black v. Apfel, 143 F.3d 383,
387 (8th Cir. 2006). Thus, to the extent that the same evidence relied upon by the
ALJ when discrediting Plaintiff’s testimony was the same evidence which
supported his discrediting the testimony of Plaintiff=s niece, the ALJ=s failure to
address or discount the opinion of Plaintiff’s niece is Ainconsequential.@ Young v.
Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000). See also Reynolds v. Chater, 82 F.3d
254, 258 (8th Cir. 1996) (holding that an ALJ=s decision need not be reversed
where he failed to consider testimony which would not have had an effect on the
outcome of the case). The court finds, therefore, that the ALJ’s arguably failing to
specify the weight given to Ms. Banks’s Third Party Function Report and to
explain why he did not rely on Ms. Banks’s opinion, and his arguably not going
into greater detail regarding Ms. Banks’s opinion do not warrant reversal.
In any case, the court finds that any deficiencies in regard to the ALJ’s
consideration of Ms. Banks’s opinion do not affect the outcome of the case.
Welch v. Colvin, 765 F.3d 926, 929 (8th Cir. 2014) (ALJ’s failure to explicitly
address applicable SSR 96-9p was an arguable deficiency in opinion writing that
had no practical effect on decision because ALJ found Plaintiff’s limitations had
no more than a slight impact on claimant’s ability to perform full range of
sedentary work; therefore it was not a sufficient reason to set aside the ALJ’s
Eleventh, to the extent Plaintiff argues that the ALJ did not consider, when
determining Plaintiff’s credibility, a statement by Dr. Dunn, in a Psychiatric
Technique Form, that there was “medical evidence” to support Plaintiff’s
allegation of depression (Doc. 15 at 12), an ALJ is not required to discuss every
credibility factor, so long as he recognizes and considers the applicable analytical
framework. See Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir. 2004). In any
case, the mere fact that Plaintiff had depression did not render her disabled. 1 See
If a mental impairment is found, the ALJ must then analyze whether certain
medical findings relevant to ability to work are present or absent. 20 C.F.R.§
404.1520a(b)(1). The procedure then requires the ALJ to rate the degree of
functional loss resulting from the impairment in four areas of function which are
deemed essential to work. 20 C.F.R. § 404.1520a(c)(2). Those areas 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. § 404.1520a(c)(3).
Dunlap v. Harris, 649 F.2d 637, 638 (8th Cir. 1981). Also, Dr. Dunn’s statement
is consistent with the ALJ’s ultimate RFC determination which limited Plaintiff,
with medication and therapy, to following simple instructions in a low stress
environment with limited social interaction.
Dr. Armour’s Opinion:
Dr. Armour saw Plaintiff, on December 17, 2011, for a consultative
psychological evaluation. Pursuant to this evaluation, Dr. Armour administered
the Wechsler Adult Intelligence Scale-IV (WAIS-IV), which test demonstrated
that Plaintiff had a Full Scale IQ score in the extremely low range. Dr. Armour
opined that Plaintiff’s WAIS-IV scores were not a valid measure of her current
level of intellectual functioning when compared to her reported educational and
work history and her having a commercial driver’s license and working for several
months as an “over the road” truck driver.
Dr. Armour further opined that
Plaintiff’s long-term memory was grossly intact based upon her ability to give a
detailed social history; her immediate memory was intact in that she could focus
In the areas of daily living, social functioning, and concentration,
persistence or pace, the ALJ found Plaintiff had moderate restriction. See 20
C.F.R. § 404.1520a(c)(4). In regard to episodes of decompensation, the ALJ
found that Plaintiff had experienced no episodes of decompensation, which had
been of extended duration. See 20 C.F.R. § 404.1520a(d)(1) (when Athe degree of
limitation in the first three functional areas@ is Anone@ or Amild@ and Anone@ in the
area of decompensation, impairments are not severe, Aunless the evidence
otherwise indicates that there is more than a minimal limitation in [a claimant=s]
ability to do basic work activities@).
on Dr. Armour’s questions; her recent memory appeared more impaired; and
Plaintiff’s insight and judgment were currently adequate for her safety. (Tr. 307309).
Dr. Armour further opined that Plaintiff had moderate to, at times severe,
limitations in regard to restrictions of daily living, in that she did some basic tasks
and reported she no longer cleaned and that she isolated herself from others. Dr.
Armour opined that Plaintiff had moderate to, at times, severe limitations in
regard to maintaining social functioning in that Plaintiff stated that she did not
want to be around other people, that she would get sad and could not stop crying,
and that she isolated herself from others.
In regard to deficiencies of
concentration, persistence or pace, Dr. Armour opined that Plaintiff had moderate
limitations, based on her reporting that she had a lack of interest in carrying out
basic daily activities. As for repeated episodes of deterioration in a work-like
setting, Dr. Armour noted that Plaintiff had not been hospitalized in an inpatient
psychiatric unit. He further opined that Plaintiff had moderate limitations in
regard to understanding and remembering instructions, sustaining concentration
and persistence in tasks, and interacting socially and adapting to her environment.
As for Plaintiff’s argument that the ALJ gave no weight to Dr. Armour’s
opinion (Doc. 15 at 10-12), Plaintiff is mistaken, as the ALJ specifically
considered Dr. Armour’s opinion throughout his opinion and, after considering all
the evidence of record, stated that he was giving “great weight” to Dr. Armour’s
opinion (Tr. 18, 21-22, 25).
As for Plaintiff’s suggesting that the ALJ should have adopted Dr.
Armour’s opinion in its entirety, an ALJ is not required to rely entirely on a
particular physician’s opinion or choose between the opinions of different medical
sources. See Martise, 631 F.3d at 927. Rather, it is the job of the ALJ to resolve
conflicts among the credible evidence of record. See Renstrom v. Astrue, 680
F.3d 1057, 1065 (8th Cir. 2012); Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir.
2002) (AIt is the ALJ=s function to resolve conflicts among the various treating and
examining physicians.”) (internal quotation marks omitted).
Although Plaintiff argues that the ALJ did not address Dr. Armour’s
opinion that Plaintiff had “moderate to at times severe” limitations in performing
activities of daily living and maintaining social functioning and “moderate”
limitations in deficiencies of concentration, persistence, or pace (Doc. 15 at 1011), the ALJ’s failure to specifically cite specific evidence does not mean he did
not consider that evidence. See Moore ex rel. Moore v. Barnhart, 413 F.3d 718,
721 n.3 (8th Cir. 2005) (AThe fact that the ALJ=s decision does not specifically
mention the [particular listing] does not affect our review.@); Montgomery v.
Chater, 69 F.3d 273, 275 (8th Cir. 1995). The Eighth Circuit, moreover, has noted
that where an ALJ specifically references the findings of a medical source, it is
“highly unlikely” that the ALJ did not consider and reject aspects of the sources
opinion which the ALJ did not specifically mention. Wildman v. Astrue, 596 F.3d
959, 966 (8th Cir. 2010) (“Given the ALJ's specific references to findings set forth
in Dr. Michaelson's notes, we find it highly unlikely that the ALJ did not consider
and reject Dr. Michaelson's statement that Wildman was markedly limited.”)
Further, in determining Plaintiff’s RFC, the ALJ imposed considerable
mental limitations on Plaintiff, which accommodated Dr. Armour’s finding that
Plaintiff had depression and borderline intellectual functioning as well as
moderate to severe limitations in regard to daily activities and maintaining social
functioning in that the ALJ limited Plaintiff to simple low stress work which
required following simple instructions and which required limited social
See Choate v. Barnhart, 457 F.3d 865, 869-70 (8th Cir. 2006)
(holding that the limitations imposed by the ALJ as reflected in the claimant=s
RFC demonstrating that the ALJ gave some credit to the opinions of the treating
physicians); Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005) (AIn assessing
[the claimant=s] RFC, the ALJ determined that [the claimant] could sit for a total
of six hours and stand for a total of two hours, but was limited to sedentary work.
This in itself is a significant limitation, which reveals that the ALJ did give some
credit to [the treating doctor=s] medical opinions.@). In conclusion, the court finds
that the ALJ gave proper weight to Dr. Armour’s opinion and that the ALJ’s
decision, in this regard, is based on substantial evidence.
Dr. Dunn’s Opinion:
Dr. Dunn, who was a State agency reviewing psychologist, found, in a
January 2012 Mental RFC Assessment, that Plaintiff was moderately limited in
regard to the following abilities:
understanding and remembering detailed
instructions, carrying out detailed instructions, maintaining attention and
concentration for extended periods, performing activities within a schedule,
maintaining regular attendance, and being punctual within customary tolerances,
sustaining an ordinary routine without special supervision, working in
coordination or proximity to others without being distracted by them, completing
a normal workday and workweek without interruptions from psychologically
based symptoms, interacting appropriately with the general public, getting along
with coworkers without distracting them or exhibiting behavioral extremes,
maintaining socially appropriate behavior and adhering to basic standards of
neatness and cleanliness, responding appropriately to changes in the work setting,
traveling in unfamiliar places, and setting realistic goals or making plans
independently of others. Dr. Dunn also found Plaintiff was not significantly
limited in regard to the following:
remembering locations and work-like
procedures, understanding and remembering very short and simple instructions,
carrying out very short and simple instructions, making simple work-related
decisions, asking simple questions or requesting assistance, accepting instructions
and responding appropriately to criticism from supervisors, and being aware of
normal hazards and taking appropriate precautions. (Tr. 215-17).
Also, in a Psychiatric Review Technique Form, Dr. Dunn opined that
Plaintiff had moderate limitations in restrictions of activities of daily living,
maintaining social functioning, and maintaining concentration, persistence or
pace, and that she had one or two episodes of decompenstation, each of an
extended duration. Dr. Dunn opined that Plaintiff had depression, and that she
had the RFC for simple work with minimal interaction with peers and away from
the public. Upon reaching his conclusions, Dr. Dunn reported that he reviewed
Plaintiff’s medical records. (Tr. 218-29).
The ALJ considered Dr. Dunn’s opinion, noting that he found that Plaintiff
retained the ability to perform simple work with limited interaction from peers and
away from the public. The ALJ concluded that those limitations were consistent
with the evidence, and the ALJ, therefore, determined that great weight should be
given to Dr. Dunn’s opinion. (Tr. 25). Plaintiff argues, for several reasons, that
the ALJ gave improper weight to Dr. Dunn’s opinion.
Plaintiff argues that the ALJ should have discussed Dr. Dunn’s opinion in
greater detail, specifically that the ALJ should have discussed the twenty separate
categories in Section 1, Summary Conclusions, of the Mental RFC Assessment
form in which categories Dr. Dunn rated Plaintiff’s limitations. While the ALJ
did not do so, it does not mean he did not consider Dr. Dunn’s findings in the
twenty categories. See Moore ex rel. Moore v. Barnhart, 413 F.3d 718, 721 n.3
(8th Cir. 2005) (AThe fact that the ALJ=s decision does not specifically mention the
[particular listing] does not affect our review.@); Montgomery v. Chater, 69 F.3d
273, 275 (8th Cir. 1995). In any case, the ALJ did specifically reference Dr.
Dunn’s finding in Section 3 on the Mental RFC Assessment form, in which
section the reviewer opines about a claimant’s RFC. As stated above, the ALJ
noted Dr. Dunn’s opinion in Section 3 that Plaintiff could perform simple work
with limited interaction from peers and away from the public. (Tr. 25, 217). As
explained by Defendant, the Program Operations Manual (POMS) DI 24510.065
provides that Section 3 is for recording the formal narrative mental RFC
assessment and provides for a narrative statement for each of the subsections in
Section 1. Thus, Section 3 summarizes findings in Section 1. Notably, the Eighth
Circuit holds that the POMS control in social security disability benefits cases
unless they are inconsistent with the Regulations or plainly erroneous. Rodysill v.
Colvin, 745 F.3d 947, 950 (8th Cir. 2014).
To the extent Plaintiff argues that the ALJ did not explain why he gave
great weight to Dr. Dunn’s opinion, as expressed in a January 2012 Mental RFC
Assessment, after addressing the medical evidence, in great detail, the ALJ stated
that Dr. Dunn’s opinion was consistent with the evidence of record and that is
why he gave it great weight. To the extent Plaintiff argues that the ALJ should
have specified the manner in which Dr. Dunn’s opinion was consistent with the
evidence of record, the ALJ did state that Dr. Dunn’s opinion was consistent with
Dr. Armour’s opinion, and, as discussed above, the ALJ addressed, in detail, Dr.
Armour’s findings pursuant to his examination and testing of Plaintiff.
conclusion, the court finds that the ALJ gave proper weight to Dr. Dunn’s opinion,
that the ALJ’s consideration of Dr. Dunn’s opinion is based on substantial
evidence, and that Plaintiff’s suggestions to the contrary are without merit.
ALJ’s RFC Determination:
The Regulations define RFC as Awhat [the claimant] can do@ despite her
Aphysical or mental limitations.@ 20 C.F.R. § 404.1545(a). AWhen determining
whether a claimant can engage in substantial employment, an ALJ must consider
the combination of the claimant=s mental and physical impairments.@ Lauer v.
Apfel, 245 F.3d 700, 703 (8th Cir. 2001). AThe ALJ must assess a claimant=s RFC
based on all relevant, credible evidence in the record, >including the medical
records, observations of treating physicians and others, and an individual=s own
description of his limitations.=@ Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir.
2004) (quoting McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). See also
Myers v. Colvin, 721 F.3d 521, 526 (8th Cir. 2013).
To determine a claimant=s RFC, the ALJ must move, analytically, from
ascertaining the true extent of the claimant=s impairments to determining the kind
of work the claimant can still do despite his or her impairments. Anderson v.
Shalala, 51 F.3d. 777, 779 (8th Cir. 1995). Although assessing a claimant=s RFC
is primarily the responsibility of the ALJ, a A>claimant's residual functional
capacity is a medical question.=@ Lauer, 245 F.3d at 704 (quoting Singh v. Apfel,
222 F.3d 448, 451 (8th Cir. 2000)). The Eighth Circuit clarified, in Lauer, 245
F.3d at 704, that A>[s]ome medical evidence,= Dykes v. Apfel, 223 F.3d 865, 867
(8th Cir. 2000) (per curiam), must support the determination of the claimant's
RFC, and the ALJ should obtain medical evidence that addresses the claimant=s
>ability to function in the workplace,= Nevland v. Apfel, 204 F.3d 853, 858 (8th
Cir. 2000).@ Thus, an ALJ is Arequired to consider at least some supporting
evidence from a professional.@ Id. See also Vossen v. Astrue, 612 F.3d 1011,
1016 (8th Cir. 2010) (AThe ALJ bears the primary responsibility for determining a
claimant's RFC and because RFC is a medical question, some medical evidence
must support the determination of the claimant's RFC.@); Eichelberger, 390 F.3d at
Upon making an RFC assessment, an ALJ must first identify a claimant=s
functional limitations or restrictions, and then assess her work-related abilities on
a function-by-function basis. See Masterson, 363 F.3d at 737; Harris v. Barnhart,
356 F.3d 926, 929 (8th Cir. 2004). The RFC need only include a claimant’s
credible limitations. See Tindell v. Barnhart, 444 F.3d 1002, 1007 (8th Cir. 2006)
(AThe ALJ included all of Tindell=s credible limitations in his RFC assessment,
and the ALJ=s conclusions are supported by substantial evidence in the record.@).
Pursuant to this requirement, the ALJ found that Plaintiff=s subjective complaints
were not credible and further found that her functional limitations permitted her to
perform medium work, which involves lifting no more than 50 pounds at a time
with frequent lifting or carrying of objects weighing up to 25 pounds. 20 CFR §
416.967(c). The ALJ also found that Plaintiff was limited to following simple
instructions in a low stress environment with limited social interaction. The court
finds that the ALJ’s RFC determination is based on substantial evidence and
consistent with the Regulations and case law.
After determining Plaintiff’s RFC and soliciting the testimony of a VE, the
ALJ found that Plaintiff could perform her past relevant work as an office cleaner
as it was actually and generally performed. If a claimant is found to be able to
perform the duties of her past relevant work, then she is considered not disabled
and therefore ineligible for benefits. See Bowen v. City of New York, 476 U.S.
467, 471 (1986); Martin v. Sullivan, 901 F.2d 650, 652 (8th Cir. 1990); 20 C.F.R.
Although the ALJ was not required to proceed further with the sequential
analysis, the ALJ alternatively found, after considering the VE’s testimony, that
there was other work, available in the national economy in significant numbers,
which Plaintiff could perform. See Martise v. Astrue, 641 F.3d 909, 927 (8th Cir.
2011) (ABased on our previous conclusion . . . that >the ALJ's findings of [the
claimant=s] RFC are supported by substantial evidence,= we hold that >[t]he
hypothetical question was therefore proper, and the VE's answer constituted
substantial evidence supporting the Commissioner=s denial of benefits.=@) (quoting
Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir. 2006)); Robson v. Astrue, 526
F.3d 389, 392 (8th Cir. 2008) (holding that a VE=s testimony is substantial
evidence when it is based on an accurately phrased hypothetical capturing the
concrete consequences of a claimant=s limitations). As such, consistent with the
Regulations and case law, the ALJ found Plaintiff not disabled.
For the reasons set forth above, the court finds that substantial evidence, on
the record as a whole, supports the Commissioner’s decision that Plaintiff is not
IT IS HEREBY ORDERED that the relief sought by Plaintiff in her
Complaint, Brief in Support of Complaint, and Reply (Docs. 1, 15, 21) is
IT IS ORDERED that a separate judgment be entered incorporating this
Memorandum and Order.
Dated this 4th day of June 2015.
/s/ Noelle C. Collins
UNITED STATES MAGISTRATE JUDGE
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