Harmon v. Colvin

Filing 23

MEMORANDUM: For the reasons set forth above, the decision of the Commissioner of Social Security is affirmed. An appropriate Judgment Order is issued herewith. Signed by Magistrate Judge David D. Noce on 9/22/2015. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

MICHAEL HARMON,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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No. 4:14 CV 1615 DDN

MEMORANDUM
This action is before the court for judicial review of the final decision of the
defendant Commissioner of Social Security denying the applications of plaintiff Michael
Harmon for disability insurance benefits and supplemental security income benefits under
Titles II and XVI of the Social Security Act (the Act), 42 U.S.C. §§ 401, 1381. The parties
have consented to the exercise of plenary authority by the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Doc. 9.) For the reasons set forth
below, the decision of the Administrative Law Judge is affirmed.

I. BACKGROUND
Plaintiff was born on August 1, 1967. (Tr. 270.) He filed his applications on July
23, 2009. (Id.) He alleged an onset date of February 1, 2008, and was unable to work due
to chronic back pain, anxiety, high blood pressure, and bronchitis/breathing problems.
(Tr. 317.) Plaintiff’s applications were denied and he requested a hearing before an
Administrative Law Judge (ALJ). (Tr. 125–35.)
The ALJ held hearings on October 7, 2010 and January 3, 2011 and determined
that plaintiff was not disabled on March 14, 2011. (Tr. 62–92, 96–113.) On May 25,
2012 the Appeals Council granted plaintiff’s request for review and remanded the case to

the ALJ with instructions to obtain additional evidence regarding the severity and limiting
effects of plaintiff’s impairments; evaluate plaintiff’s mental impairments using the
special technique; give further consideration to plaintiff’s maximum residual functional
capacity (RFC) and provide specific citations supporting the determination; give further
consideration to “other source” opinions; evaluate further plaintiff’s subjective complaints
and provide rationale for discrediting them; and obtain, if needed, supplemental evidence
from a vocational expert (VE). (Tr. 122–23.)
The ALJ held an additional hearing on April 8, 2013 and again found plaintiff not
disabled on April 19, 2013. (Tr. 10–30; 37–61.) The Appeals Council chose not to rehear
plaintiff’s case, and, therefore, the second decision of the ALJ is the final decision of the
Commissioner. 20 C.F.R. § 404.984(d).

II. MEDICAL AND OTHER HISTORY
Several times in 2007 plaintiff saw Joseph Elterman, M.D., for his hypertension.
(Tr. 463–65.) He was admitted to Jefferson Memorial Hospital for hypertension, fatigue,
and anxiety from May 17 to 19, 2007. (Tr. 517-22.) During this time Dr. Elterman
prescribed Klonopin for anxiety, Vasotec for hypertension, hydrochlorothiazide for
hypertension, and Toprol XL for hyperthyroidism. (Id.) While in the hospital, plaintiff
also had a normal heart stress test (Tr. 462) and a normal electrocardiogram (EKG). (Tr.
528–29.)
On July 30, 2007, plaintiff had a psychiatric evaluation at Advanced Psychiatric
Services. Plaintiff’s Global Assessment of Functioning (GAF) score was 38. (Tr. 486.)
A GAF of 38 indicates either “some impairment in reality testing or communication” or
“major impairment in several areas, such as work or school, family relations, judgment,
thinking, or mood.”1

1

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 34-35
(4th ed. 2000) (“DSM IV”).
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Plaintiff went to Advanced Psychiatric Solutions on August 27, 2007, but the notes
from the psychiatric visit are illegible. (Tr. 486, 685.)
On September 27, 2007, plaintiff went to a psychiatric visit and it was noted that he
was on clonozepam (anxiety), Celexa (depression), as well as two other medications
which were illegible. (Tr. 485, 686.)
From September 30 to October 24, 2007, plaintiff went to Advanced Psychiatric
Solutions five times for therapy, centering on his relationship with his girlfriend. There
were no suicidal ideations, but the majority of the writing was illegible. (Tr. 459, 481,
485, 487, 686.)
Plaintiff was admitted to Jefferson Memorial Hospital’s Emergency Room on
November 12, 2007, complaining of depression and anxiety.

He claimed suicidal

ideations in the past week and that he took seventeen unknown medications last week but
vomited them up, then lied about it. (Tr. 508–09.)
On November 14, 2007, plaintiff went to Jefferson Memorial Hospital’s
Emergency Room stating he ran out of clonazepam, his anxiety medication. (Tr. 504.)
On November 15, 2007, plaintiff was seen at Advanced Psychiatric Solutions for
psychiatric care. His medications for clonazepam, Celexa, and three illegible medications
were continued. (Tr. 477, 687.)
On November 29, 2007, plaintiff went to the emergency room stating he ran out of
clonazepam again. The emergency room had Advanced Psychiatric Solutions refill his
prescription. (Tr. 476–78, 687–88.)
On December 20, 2007, plaintiff went to Advanced Psychiatric Solutions. His
medications were not changed. He reported working a few days but still had nothing
permanent. He continued to look for permanent work. (Tr. 475, 689.)
From February 28 to September 25, 2008, plaintiff visited Advanced Psychiatric
Solutions five times. His medications were unchanged. Several times plaintiff reported
that he was actively looking for work. (Tr. 472–75, 689–92.)

-3-

On November 17, 2008, plaintiff reported to Advanced Psychiatric Solutions that
he had lost his job of two weeks. His medications remained the same. (Tr. 692.)
On November 21, 2008, plaintiff was seen for a psychiatric visit after his girlfriend
died in a truck crash. (Tr. 471.)
On January 12, 2009, plaintiff had a regular psychiatric visit and reported that he
was actively looking for jobs. (Tr. 471.)
On February 11, 2009, plaintiff was seen by Joseph Elterman, M.D., who noted
that his lungs were clear. Most of the notes are illegible. (Tr. 458.)
On March 19, 2009, plaintiff reported he was still looking for work. (Tr. 471, 693.)
On March 19, 2009, radiologist Paula Leiva, M.D., compared plaintiff’s x-ray with
one taken on May 19, 2007 and found no problems with plaintiff’s heart or lungs. (Tr.
503.)
On May 7, 2009, Dr. Elterman reported that plaintiff was having trouble breathing
and ordered a pulmonary function test. On May 11, 2009, the pulmonary function test
showed severe airway obstruction, characteristic of emphysema but it had a reversible
component. It was noted at the time that plaintiff was till smoking despite breathing
problems. (Tr. 447, 455, 457, 498.)
On July 16, 2009 Janet Murdick, Clinical Nurse Specialist (CNS) and Advanced
Nurse Practitioner (ANP) saw plaintiff at Advanced Psychiatric.

The notes and

medications are illegible. (Tr. 567.)
On July 30, 2009, plaintiff went to the Jefferson Regional Medical Center’s
Emergency Room complaining of hypertension and sinus problems. (Tr. 495–97.)
On September 24, 2009, Joan Singer, Ph.D., completed a physical residual
functional capacity assessment of plaintiff and stated that he had hypertension and asthma.
He had no external limitations but his postural limitations include: climbing, balancing,
stooping, kneeling, crouching, and crawling. There were no limitations in manipulating
items, vision, or communication. He would have problems with extreme temperatures,

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wetness, noise, and vibrations. Dr. Singer determined the severity of his condition was
“partially credible.” (Tr. 530–33.)
Dr. Elterman followed-up with plaintiff on his breathing issues and a pulled muscle
on September 24, 2009. (Tr. 564.)
Nurse Murdick saw plaintiff on September 28, 2009, and noted medications but the
notes are illegible. (Tr. 567.)
Dr. Singer performed a mental residual functional capacity assessment of plaintiff
on October 1, 2010, and found plaintiff had no marked limitations in any category. He is
moderately limited in eight categories: understanding and remembering instructions,
carrying out detailed instructions, extended periods of concentration, working with others
without distraction, completing a workday without interruptions for psychological based
symptoms, and interacting appropriately with the public, supervisors, and peers. Dr.
Singer found the plaintiff only partially credible. (Tr. 539–49.)
Nurse Murdick saw plaintiff three times between October 20, 2009 and January 11,
2010. She noted plaintiff was having difficulty sleeping but there was no depression or
anxiety problem.

Plaintiff had no suicidal or homicidal ideations.

He was still

unemployed. (Tr. 568.)
Dr. Elterman tested plaintiff’s cholesterol on March 18, 2010 and noted all levels
were elevated. Plaintiff was started on a cholesterol medication, but the doctor’s notes as
to which one are illegible. (Tr. 560–61.)
Nurse Murdick saw plaintiff on April 19, 2010 and made no adjustments to his
medications. (Tr. 570.)
On June 3, 2010, plaintiff went to the Veterans Administration Hospital’s
Emergency Room complaining of back pain and stated he did not take his blood pressure
medication. An x-ray showed grade one spondylolisthesis, the slipping of vertebra, but no
bulges or abnormalities. Shaukat J. Chaudhry, M.D., provided him with toradol and
naproxen, both for pain. (Tr. 631–33.)

-5-

On July 5, 2010, plaintiff went to the Emergency Room at Jefferson Regional
Medical Center following an automobile accident. Carl J. Werner, M.D., proscribed him
tramadol (for pain), cyclobenzaprine (a muscle relaxant), sulfamethoxazole (an antibiotic),
cetirizine (for allergies), acetaminophen-hydrocodone (for pain), and morphine (for pain).
An x-ray showed anterior listhesis of his spine at L5 on Sl, suggesting a pars defect of L5.
(Tr. 648–51, 699–700.)
On July 21, 2010, Patricia McKenzie, RN, APN, saw plaintiff at the VA Hospital
and noted his current medications included:

diltiazem (for high blood pressure),

simvastatin (for high cholesterol), enalapril (for high blood pressure), proair inhaler, qvar
(for asthma), clonazepam, and citalopram (for depression).

Plaintiff was started on

gabapentin (for pain), and flexeril (a muscle relaxant). His x-rays remain unchanged from
earlier scans. Plaintiff was offered smoking cessation help but he refused it. (Tr. 622–
27.)
On August 5, 2010, Nurse Murdick provided plaintiff with a one-time emergency
refill of his psychiatric medications. (Tr. 570, 697.)
On August 7, 2010, plaintiff’s back was x-rayed after complaints of increased pain.
There was minimal anterolisthesis. Mild bulges were noted but there was no canal
narrowing or neural compression. (Tr. 584.)
On August 13, 2010, Dr. Elterman noted that plaintiff’s cholesterol levels were still
high but improving. (Tr. 574–75.)
On August 31, 2010, plaintiff fell in the shower and went to the Jefferson Regional
Medical Center’s Emergency Room complaining of back pain.

He was given

acetaminophen-hydrocodone and Vicodin for the pain. An x-ray indicated mild decreased
intervertebral disc space at L5-S1. At the time he reported that he was still smoking. (Tr.
654–71.)
On September 1, 2010, plaintiff was seen by Bingzhong Chen, M.D., at the
Veterans Administration Hospital for low back pain.

Dr. Chen increased plaintiff’s

prescriptions for cyclobenzaprine and gabapentin. An x-ray indicated a mild to moderate
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disk bulge at L4-L5 and L5-S1 and minimal grade 1 anterolisthesis at L5-S1. (Tr. 605–
07.)
On September 15, 2010, Dr. Elterman filled out a pulmonary RFC form and
diagnosed plaintiff with chronic obstructive pulmonary disease with shortness of breath
and moderate breathing attacks. Plaintiff has an albuterol inhaler. Dr. Elterman did not
fill out any of the specific limitations sections of the form. (Tr. 576–80.)
Nurse Murdick filled out a mental RFC assessment form on September 20, 2010.
She indicated plaintiff had a current GAF score of 58 and his highest GAF in the past year
was 62.

A GAF of 58 indicates that plaintiff has moderate difficulty in social or

occupational functioning, while a GAF of 62 indicates mild symptoms or some difficulty
in social or occupational functioning. A GAF of 62 also indicates that the person is
generally functioning pretty well and has some meaningful interpersonal relationships. 2
Plaintiff’s current psychiatric medications include Celexa, clonazepam, Ambien (for
sleep), Elavil. There are no significant side effects that would prevent him from working.
He is anxious, impulsive, easily distracted, has mood swings, memory impairment, and at
least once a week has a panic attack. Nurse Murdick opines that he would be unable to
meet competitive standards of attendance, work in close proximity to others, complete a
normal workday without interruptions, work at a consistent pace, or get along with coworkers. Additionally, he is seriously limited in remembering procedures, short, and
simple instructions; carrying out instructions; maintaining attention; making simple workrelated decisions; asking simple questions; accepting instructions or criticisms; dealing
with normal stress; or, taking precautions for normal work hazards.

She estimates

plaintiff would be absent at least two days per month. (Tr. 675–80.)
Plaintiff was referred to physical therapy for his back pain but did not show up for
his appointment. (Tr. 991.)
Plaintiff was examined by the VA for a regularly scheduled compensation and
pension reevaluation regarding his back. He had previously been declared 20% disabled
2

Id.
-7-

by the VA. (Tr. 570.) Plaintiff reported continued back pain with intermittent numbness
in his left leg 3 to 4 times a week for 5 to 10 minutes. He had no history of incapacitation
due to his back pain. He could walk for 2 blocks and stand for 3 to 5 minutes. He stated
he cannot do construction work, his prior work, due to the pain. (Tr. 985–87.)
On January 6, 2011, the VA completed a nerve conduction study of his back pain,
which was normal. (Tr. 837.)
On January 10, 2011, the VA’s neurology department increased plaintiff’s
gabapentin prescription and plaintiff complained he was out of medication again. (Tr.
981.)
On January 24, 2011, Dr. Elterman reported that plaintiff “shouldn’t be working”
because of his high blood pressure and COPD. Plaintiff reported that he quit smoking two
months earlier. (Tr. 708.)
Nurse Murdick saw plaintiff on February 3, 2011. It appears there are no changes
but the notes remain predominately illegible. (Tr. 706.)
On February 3, 2011, Dr. Elterman opined that plaintiff cannot work due to his
high blood pressure and COPD. (Tr. 707.)
On February 16, 2011, plaintiff visited the Jefferson Health System Urgent Care
facility with sinus complaints but x-rays showed no infiltrates or effusions. (Tr. 773–74,
778.)
On March 8, 2011, plaintiff requested an increase in his gabapentin from the VA
hospital. When he would not coordinate his VA care with his outside provider care, his
request was denied. At that time he became verbally abusive to Nurse McKenzie. (Tr.
970–71.)
On March 23, 2011, plaintiff was assessed by Amanda E. Avellone, M.D., at the
Thoracic & Critical Care Medicine, LLC. Plaintiff uses his Albuterol inhaler four to six
times a day with immediate relief. He wakes up three out of five nights with shortness of
breath.

His current medications include:

clonazepam, Celera, amitriptyline (anti-

depressant), zolpidem (sleep aid), diltiazem, enalapril, Ventolin (bronchodilator),
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simvastatin, omeprazole (antacid), flexural, vitamin D-3, nystatin (antifungal), gabapentin,
ibuprofen, and Benadryl. His pulmonary health has worsened from the last study, but he
still has only minimal COPD. He probably has asthma and his study suggests pulmonary
vascular disease. (Tr. 710–13.)
On April 2, 2011, Christa Hines, M.D., saw plaintiff after being admitted on a
psychiatric hold at the VA hospital for apparently scratching his stomach while he was
asleep. His GAF upon arrival was 40. During his stay he had an outburst at another
psychiatric ward patient and was given haloperidol and lorazepam to calm him down.
While attending several group therapy sessions he was hostile and aggressive and derailed
the sessions. He became combative and uncooperative with his nurse when renewing his
inhaler prescription. His gabapentin was increased and upon discharge his GAF was 60.
(Tr. 804, 823–25, 908, 903–04, 925, 935–36, 945.)
On April 14, 2011, plaintiff was admitted to the VA Hospital for erratic speech and
behavior. He had admitted to marijuana use the day before. He was diagnosed with major
depression, generalized anxiety and marijuana abuse. There were no suicidal or homicidal
ideations. He was put on the nicotine patch for smoking cessation, but Deborah H.
Mango, R.N., noted he removed it in order to go outside and smoke on April 15, 2011.
Nurse McKenzie noted the possible drug interactions between his prescribed medications.
Plaintiff was still smoking two to three cigarettes per day. Upon discharge, Ryotaro Kato,
M.D., noted that his erratic speech and behavior was likely due to drug interactions as well
as the use of marijuana one to two times per month. (Tr. 721–41, 801–03, 818–19, 873–
74, 877, 895–96.)
On May 14, 2011, Bob Geng, M.D., increased his gabapentin due to reports of
increased back pain. (Tr. 567–69.) Plaintiff reported he was attempting to stop smoking
again and wanted to slowly step down his nicotine patch. (Tr. 840.)
On May 18, 2011, plaintiff was seen at a VA outpatient mental health clinic by
Michael Jones, LCSW, who noted his history of violent behavior. Plaintiff claimed he
was out of clonazepam again. Mr. Jones stated that the non-VA pharmacy had provided
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enough for him, but that plaintiff never picked up the prescription. Mr. Jones assessed
plaintiff’s current GAF score at 45. (Tr. 845–54.)
On May 20, 2011, plaintiff’s MRI showed a defect at L5-S1, mild degenerative
disc disease at T11-12 and L5-S1. He has a bulging disc at L5-S1. The CT scan from
August 7, 2010 had shown a disc bulge at L4-L5 and L5-S1. Plaintiff refuses physical
therapy, rather, only wants pain management. (Tr. 828–31.)
Plaintiff went to the VA emergency room on June 3, 2011 for a pain attack caused
by plaintiff running out of his medication at least three days before. (Tr. 746–64.)
On June 5, 2011, plaintiff was seen for falling while getting out of the tub. An xray of the back showed minimal degenerative changes. (Tr. 775–77.)
On July 13, 2011, plaintiff ran out of his psychiatric medication. Antonia J.
Gesmundo, M.D., prescribed him more. (Tr. 1117–18.)
On July 27, 2011, plaintiff ran out of his psychiatric medication again and was
extremely agitated. The hospital refilled his prescription. (Tr. 1142.)
On August 19, 2011, plaintiff ran out of his clonazepam again. Nurse Peggy
Gleason, R.N., ordered a refill. (Tr. 113–14.)
On July 23, 2012, the neurology department at the VA hospital prescribed plaintiff
a lidocaine patch for his lower back pain. (Tr. 1031–32.)
On June 18, 2012, the VA mental health clinic reported his GAF as 55, up from 53
on January 28, 2012. (Tr. 1082.)
Plaintiff’s MRI on July 30, 2012, showed spondylolisthesis at L5-S1 but otherwise
normal. Plaintiff reports only gabapentin works for his pain. (Tr. 999–1000.) Nerve
conduction studies resulted in normal findings on August 27, 2012. (1070–71.)
Plaintiff requested a letter from Joanne M. Waltman, M.D., stating that he cannot
work. She reports that he is tolerating the current drug regime with no major side effects.
He drinks a six-pack of beer twice a week and reports that he does not smoke. In
conclusion she stated, “I do not see a pulmonary reason that he would be unable to work.”
(Tr. 1177–78.)
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First ALJ Hearing
The ALJ held a hearing October 7, 2010. (Tr. 37-52.) Plaintiff testified to the
following facts. He graduated high school and attended general carpentry trade school.
The Army trained him as a satellite operator and when he left the Army he had a
chauffeur’s license. He also trained for two weeks in handling nuclear and radioactive
material as a worker at a decommissioned power plant. He had on and off jobs mowing
lawns, washing vehicles, and janitorial work. He started receiving unemployment benefits
in March 2009 and received them through the ALJ hearing in October 2010. He has
applied for telemarking, driving, and other jobs where he would not have to lift anything
heavy. (Tr. 65–69.)
He attended inpatient drug and alcohol treatment in 2002. The last time he drank
alcohol was March 2008. He is diagnosed with COPD, spondylolisthesis, anxiety, and
depression. He is currently receiving psychiatric treatment from Nurse Practitioner Janet
Murdick. Nurse Murdick prescribes medications for him under two doctors’ supervision,
but neither doctor has ever actually seen him. (Tr. 70–74.)
He can drive a car. He takes care of his elderly mother by picking up medications,
taking her to appointments, and generally takes care of her. He visits his friend’s house
where they play video games and eat dinner together on occasion. He can take care of
himself including doing the laundry and cooking. He does not clean, but has hired
someone to do that for him and his mother. He attends church regularly. (Tr. 75–77.)
The VA had not prescribed him physical therapy yet, but he knows he should be
doing it. He testified he can stand for ten minutes at a time and can sit for forty-five
minutes at a time. He estimates he can walk about two blocks. He may be able to lift
between 25 and 30 pounds. He reports using a cane in order to walk which was prescribed
by his VA physicians. (Tr. 78–80.) He reports quitting smoking three to four months
prior to the hearing. (Tr. 81.)
During a post-hearing addendum, an oral recitation into the record by the ALJ, the
ALJ detailed the inconsistences between plaintiff’s testimony and his medical records.
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This record addendum was apparently not in the presence of plaintiff or his counsel. A
cane has never been prescribed for his use. Additionally, his records indicate that as of
August 2010 he was still smoking half a pack of cigarettes a day. Plaintiff is also caring
for his mother, who he admits, should be in a nursing home. His x-rays indicate that there
are no serious defects or issues with his back or hands. Plaintiff also complained of
severe, 9 out of 10, back pain after falling in the shower but managed to easily get out of
the wheelchair for a pain shot. His pulmonary assessment is guarded but there are very
few details or medical records supporting that assessment. (Tr. 81–84.)
The ALJ held a supplemental hearing on January 3, 2011 in order to allow the
plaintiff to cross-examine the vocational expert (VE).

The VE had answered

interrogatories formulated by the ALJ that restricted him to persons who were limited to
understanding, remembering, and carrying out at least simple instructions and nondetailed tasks. (Tr. 87–90.) This equates to unskilled workers. (Tr. 90.) Skilled workers
must be able to carry out detailed instructions. (Id.)

First Decision of the ALJ
On March 14, 2011 the ALJ issued a decision that plaintiff was not disabled. The
ALJ found that he had not been gainfully employed since February 1, 2008. He had been
employed off and on during the claims period but all jobs ended quickly and at least once
due to his medical condition. (Tr. 101.) The ALJ found that he had the following severe
impairments: degenerative disc disease, generalized anxiety disorder, and depression.
Plaintiff’s COPD was considered non-severe. (Tr. 102.) The ALJ then found that none of
these impairments or combination of these impairments met or medically equaled one of
the listed impairments.

(Tr. 104–05.)

Additionally, the ALJ assessed his mental

impairments using “paragraph B” criteria and found that plaintiff had only mild
restrictions regarding daily activities, mild difficulties in social functioning, and can has
moderate difficulties regarding concentration, persistence, or pace. There have been no

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episodes of decompensation. Additionally, the ALJ found that “paragraph C” criteria
were also not met. (Tr. 105–06.)
The ALJ determined that the plaintiff’s Residual Function Capacity (RFC) included
the ability to perform light work, but which required him to understand, remember, and
carry out no more than simple instructions and non-detailed tasks.
maintain concentration for two hour segments over eight hours.

Plaintiff could

He has adequate

judgment for simple work-related tasks. Contact with coworkers and supervisors should
be infrequent. He can adapt to routine or simple changes and take appropriate precautions
against hazards. Plaintiff would be able to maintain regular attendance without special
supervision and perform at a normal pace without production quotas. (Tr. 106.) The ALJ
found that plaintiff can no longer perform his past relevant work. (Tr. 111.)The ALJ then
concluded plaintiff was not disabled, because he could perform jobs that exist in
significant numbers in the national economy. (Tr. 112.)

Second ALJ Hearing
The Appeals Council remanded the case to the ALJ, ordering the ALJ to obtain
additional evidence; clarify the nature and severity of the impairments; evaluate the
nature, severity, and limiting effects of claimant’s pulmonary impairment; evaluate the
mental impairments with the special technique; and, reevaluate the RFC. The ALJ was
also required to provide decisional rationale, including the weight given to non-examining
source opinions; to provide the rationale for disregarding plaintiff’s subjective complaints;
and to obtain a supplemental assessment from the VE. (Tr. 122–23.)
The ALJ held a second hearing on April 8, 2013. (Tr. 37–61) The plaintiff attended
the second hearing and was represented by an attorney. (Tr. 568.) Plaintiff testified to the
following facts.

He completed high school and received training in carpentry, the

military, radiation and nuclear material, and satellite operations. He also has a chauffeur’s
license and has operated a dump truck, but received no special training for this work. He
looked for work in 2010 as a telemarketer or truck driver. He was in inpatient alcohol
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rehabilitation in 2000. Plaintiff claims he no longer drinks alcohol but medical records
indicate consumption of two six-packs of beer every week. Plaintiff did not dispute this
when confronted by the ALJ. (Tr. 41–43.)
Plaintiff stated he has degenerative disc disease, COPD, and panic anxiety disorder.
His degenerative disk disease is being treated at the VA Hospital. His nerve conduction
study was normal.

The MRI indicated spondylolisthesis of L5 and S1 with age-

appropriate degeneration.

Plaintiff started using a cane around 2000 when the VA

prescribed it for him. (Tr. 43–46)
Plaintiff testified he has problems moving around and bending over. He can sit for
only thirty minutes but does not put a limit on how much walking he could do. He lays
down two or three times a day for at least thirty minutes at a time. He takes pain
medication but has not seen a pain management specialist. He receives disability for his
back from the VA. He has COPD which shortens his breath and makes it very hard to
breathe. He takes medications for his COPD and asthma which are working. Plaintiff
says he quit smoking six months ago. He has panic and anxiety attacks as well as acute
depression. He said that he has two panic attacks a day that last around thirty minutes to
an hour. He takes medication for them and he reports it is working. He also stated his
depression has been around for two to three years and results in him lacking motivation,
and enthusiasm, and feeling desperate. (Tr. 46–52.)
Plaintiff can drive but currently has no vehicle. He takes care of his mother by
doing the laundry, helping her move around the house, buying groceries, and cooking.
Plaintiff says he no long goes anywhere; he has no leisure activities. His sleep is fair
when he takes his prescribed Ambien. (Tr. 53–55.)
The Vocational Expert (VE) testified by phone at the hearing. He recited plaintiff’s
work history which included ten jobs, but the VE found that he could perform only one of
them now. This is as a caregiver for his elderly mother, but is untrained; so, it is an
unskilled job with a medium exertional level. The ALJ limited plaintiff to work that
would not involve ropes, ladders, scaffolding, hazardous heights, fumes, odors, dust, and
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gasses. Also the ALJ limited plaintiff to only unskilled work. In addition to the job as a
caregiver, the VE found that plaintiff could perform work as a kitchen helper, packaging,
or as an unarmed security guard. All of these are light, unskilled work. Plaintiff’s counsel
asked the VE whether his answer would change, if the hypothetical person was required to
work away from people. The VE stated that his answers would change, because nearly all
jobs at any level require interaction with people at some level. (Tr. 56-60.)

III. DECISION OF THE ALJ
On April 19, 2013 the ALJ found plaintiff not disabled. (Tr. 13–36.) At Step One
the ALJ found that plaintiff met the insured status requirements through September 30,
2013 and had not been engaged in substantial gainful activity since February 1, 2008, his
alleged onset date. (Tr. 13–15.)
At Step Two the ALJ found plaintiff had the severe impairments of chronic
pulmonary disease, degenerative disc disease, generalized anxiety disorder, and
depression. His hypertension was considered a non-severe impairment. (Tr. 16.)
At Step Three, the ALJ discussed each impairment and compared plaintiff’s
symptoms to those listed in the C.F.R. The ALJ found none of his impairments, alone or
in combination meet or are medically equivalent to a presumptively disabling impairments
in 20 C.F.R Part 404, Subpart P, Appendix 1. Additionally, the ALJ considered plaintiff’s
mental impairments under the “paragraph B” and “paragraph C” criteria3 and found these
criteria are not satisfied. Specifically, the ALJ found plaintiff has no restrictions in his
daily living activities, mild restrictions in his social functioning, and moderate restrictions
regarding his concentration, persistence, or pace.

(Tr. 17)

He has experienced no

episodes of decompensation due to his mental impairments. (Id.)
The ALJ then considered the entire record and determined plaintiff had the RFC to
perform light work, but in doing so should not climb ropes, ladders, or scaffolds. Nor
should he work around fumes, odors, dust, or gases. He should avoid heights as well. He
3

“Paragraph B and C” criteria are listed in 20 C.F.R. Subpt. P, app. 1, § 12.00.
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is able to remember and carry out at least simple instructions and non-detailed tasks. (Tr.
18.) At Step Four, the ALJ found plaintiff unable to perform any past relevant work. (Tr.
28.)
Finally, at Step Five, the ALJ, with the testimony of a VE, found work in
significant numbers in both the national and state economies that plaintiff would be able to
perform. (Tr. 28–29.)

IV. GENERAL LEGAL PRINCIPLES
The court’s role on judicial review of the Commissioner’s decision is to determine
whether the Commissioner’s findings comply with the relevant legal requirements and are
supported by substantial evidence in the record as a whole. Pate-Fires v. Astrue, 564 F.3d
935, 942 (8th Cir. 2009). “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. In determining whether the evidence is substantial, the court considers
evidence that both supports and detracts from the Commissioner's decision. Id. As long
as substantial evidence supports the decision, the court may not reverse it merely because
substantial evidence exists in the record that would support a contrary outcome or because
the court would have decided the case differently. See Krogmeier v. Barnhart, 294 F.3d
1019, 1022 (8th Cir. 2002).
To be entitled to disability benefits, a claimant must prove he is unable to perform
any substantial gainful activity due to a medically determinable physical or mental
impairment that would either result in death or which has lasted or could be expected to
last for at least twelve continuous months.

42 U.S.C. §§ 423(a)(1)(D), (d)(1)(A),

1382c(a)(3)(A); Pate-Fires, 564 F.3d at 942. A five-step regulatory framework is used to
determine whether an individual is disabled. 20 C.F.R. § 404.1520(a)(4); see also Bowen
v. Yuckert, 482 U.S. 137, 140–42 (1987) (describing the five-step process); Pate-Fires,
564 F.3d at 942 (same).

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Steps One through Three require the claimant to prove (1) he is not currently
engaged in substantial gainful activity, (2) he suffers from a severe impairment, and (3)
his impairment meets or equals a listed impairment. 20 C.F.R. § 404.1520(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 RFC to perform his past
relevant work (PRW).

Id. § 404.1520(a)(4)(iv).

The claimant bears the burden of

demonstrating he is no longer able to return to his PRW. Pate-Fires, 564 F.3d at 942. If
the Commissioner determines the claimant cannot return to 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. §

404.1520(a)(4)(v).

V. DISCUSSION
Plaintiff argues that the ALJ erred by failing to properly assess his residual function
capacity, because the ALJ failed to properly consider the medical opinions of Dr.
Elterman, Nurse Practitioner Murdick, and the two non-examining state physicians. This
court disagrees.

A. Dr. Elterman’s Pulmonary and Hypertension Opinions
Plaintiff argues that the ALJ failed to properly consider the limitations on him due
to his hypertension and COPD. This failure, plaintiff argues, resulted in his RFC not
properly reflecting his true capabilities. (Doc. 17 at 7.) The Commissioner argues that the
ALJ gave proper weight to the medical records and opinions provided by Dr. Elterman.
However, the Commissioner argues that Dr. Elterman’s conclusion that plaintiff was
disabled and unable to work was properly disregarded by the ALJ as a legal conclusion
left to the Commissioner alone. (Doc. 22 at 5.)

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The opinion of a treating physician will be given “controlling weight” only if it is
“well supported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence in [the] record.” Prosch v. Apfel,
201 F.3d 1010, 1012–13 (8th Cir. 2000). The record, though, should be “evaluated as a
whole.” Id. at 1013 (quoting Bentley v. Shalala, 52 F.3d 784, 785-86 (8th Cir. 1997)).
Impairments are not considered disabling when they can be controlled by proper use of
medication.

Brown v. Barnhart, 390 F.3d 535, 540–41 (8th Cir. 2004) (finding no

disability because claimant’s hypertension could be controlled with medication, which she
chose not to take). Also a plaintiff’s own actions which affect his impairments may be
considered when evaluating the severity of an impairment. Choate v. Barnhart, 457 F.3d
865, 872 (8th Cir. 2006) (missing appointments, failing to take medications, continuing
smoking all contributed to finding no disability); Kisling v. Chater, 105 F.3d 1255, 1257
(8th Cir. 1997) (plaintiff’s continued smoking, against physician’s advice, contributed to
plaintiff’s pulmonary problems). Finally, a doctor’s opinion that a claimant is disabled
and cannot sustain employment is not a medical diagnosis and is not entitled to any
weight. See House v. Astrue, 500 F.3d 741, 745 (8th Cir. 2007).
Plaintiff argues that Dr. Elterman’s opinions were not given their due weight and
the ALJ specifically ignored Dr. Elterman’s 2010 and 2011 statements, that plaintiff could
not work. (Doc. 17 at 7.) Dr. Elterman’s report in 2010 stated that plaintiff had shortness
of breath, but his asthma attacks were only moderately severe. (Tr. 576.) He assessed
plaintiff’s prognosis as guarded, but then failed to provide any limitation assessments on
the form report. (Tr. 578–80.) In 2011, Dr. Elterman provided a short statement that in
his professional opinion, “Mr. Harmon cannot work due to his high blood pressure and
COPD.” (Tr. 707.) No medical reasoning or limitations were provided to support this
assessment. These are legal conclusions made by physicians which invade the province of
the Commissioner and are entitled to no weight. See House, 500 F.3d at 745.
The ALJ provided two pages of reasoning regarding plaintiff’s COPD. (Tr. 20–
22.) He detailed all of plaintiff’s doctor appointments and emergency room visits and
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noted there were no abnormal chest x-rays and no doctor stated plaintiff was incapacitated
due to his COPD. (Tr. 20–22.) This included the March 2009 pulmonary function study
by Dr. Elterman that found a significant response to plaintiff’s COPD with use of his
inhaler. (Tr. 20.) Additionally, all of the medical records indicate that his medications
remained stable.

(Tr. 21.)

Conditions which are controlled through treatment and

medications cannot be considered disabling. Brown v. Barnhart, 390 F.3d 535, 540 (8th
Cir. 2004). The ALJ also noted that it was recommended by all of plaintiff’s doctors that
plaintiff cease smoking cigarettes and marijuana. (Tr. 447, 455, 498, 622–27, 654–70,
705, 801–03, 840, 1069–70, 1177–78.) Failure to follow a doctor’s recommendations
may be considered when assessing plaintiff’s true limitations. See Brown, 390 F.3d at
540. The last assessment of plaintiff’s pulmonary health occurred in 2013, when Dr.
Waltmann, M.D., stated she could find “no pulmonary reason [plaintiff] could not work.”
(Tr. 1176–78.) Even though neither of plaintiff’s primary care doctors stated exactly what
limitations should be placed on plaintiff, the ALJ accounted for plaintiff’s COPD and
asthma by limiting plaintiff’s exposure to fumes, odors, dust, and gases.

(Tr. 18.)

Substantial evidence supports the ALJ’s RFC finding regarding plaintiff’s pulmonary
abilities and limitations.

B. Nurse Practitioner Janet Murdick’s Psychiatric Opinion
Plaintiff argues that the ALJ wrongly discredited the opinion of Nurse Practitioner
Murdick, because she is a non-acceptable medical source. (Doc. 17 at 8.) Defendant
argues that because Murdock is a non-acceptable medical source, she cannot be a treating
source and, therefore, her opinion is not entitled to controlling weight. (Doc. 22 at 6–7.)
Furthermore, the Commissioner argues that the ALJ discussed Murdock’s opinion but did
not find it entirely credible, because it was inconsistent with the record as a whole. (Id. at
7–8.)
Regarding mental health conditions, only licensed physicians and licensed or
certified psychologists are considered acceptable medical sources. SSR 06-03P at *1
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(Aug. 9, 2006). Acceptable medical sources are the only ones who may establish the
existence of a medically determinable impairment; give a medical opinion; or be
considered a treating source, and thereby entitled to controlling weight. Id. at *2. Other
sources, such as nurse practitioners, may be used to assess the severity of the claimant’s
impairment and how it affects his ability to function. Id. at *2. A non-acceptable source
can opine on symptoms, diagnosis and prognosis, physical and mental symptoms, as well
as what the claimant can do despite the impairment(s). Id. at *5. The non-acceptable
source is evaluated based on several factors:

(1) duration and frequency of the

relationship with the claimant; (2) consistency of the opinion with the record; (3)
relevance of the evidence with the opinion; (4) explanation of the opinion; and (5) any
other factors which support or refute the opinion. Id. at *4–5.
Although there is a distinction between what an adjudicator must consider
and what the adjudicator must explain in the disability determination or
decision, the adjudicator generally should explain the weight given to
opinions from these ‘other sources,’ or otherwise ensure that the discussion
of the evidence in the determination or decision allows a claimant or
subsequent reviewer to follow the adjudicator’s reasoning, when such
opinions may have an effect on the outcome of the case.
Id. at *6.
However, like all medical sources, a nurse practitioner’s opinion can be afforded
less or no weight if it is not supported by the other objective medical evidence. See Travis
v. Astrue, 477 F.3d 1037, 1041 (8th Cir. 2007); SSR 06-03P at *6. Situational depression
is typically not severe enough to be disabling. See Gates v. Astrue, 627 F.3d 1080, 1082–
83 (8th Cir. 2010) (situational depression because plaintiff is not compliant with treatment
is not disabling); Buchanan v. Colvin, No. 4:13 CV 1079 TCM, 2014 WL 4205175, at *13
(E.D. Mo. Aug. 22, 2014) (same). Finally, if a condition can be managed by adherence to
a physician’s advice and medications, the condition cannot be considered disabling.
Brown, 390 F.3d at 540.
The ALJ considered Nurse Murdick’s treatment notes, when legible, into the
decision. The ALJ did not, however, give credence to the mental RFC assessment form
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due to her status as a non-acceptable source as well as its conflict with the record as a
whole. (Tr. 23–26.) From the entire medical record the ALJ determined that plaintiff’s
anxiety was situational and often due to his own noncompliance with his medications. On
November 12, 2007, he went to the emergency room and admitted to taking pills earlier in
the week, but vomited them. This was, however, during the time which the police arrested
him for violating the restraining order against him. (Tr. 508–09, 687.) On April 2, 2011,
plaintiff was admitted to the hospital after disability was denied. (Tr. 804.) On April 14,
2001 plaintiff was admitted for erratic behavior likely due to polysubstance abuse. (Tr.
721–741, 801–03.)

Additionally, during some of these times, plaintiff either had a

temporary job or continued to look for work. (Tr. 474, 474, 568, 690, 692, 693.) On
November 29, 2007, August 5, 2010, June 3, 2011, July 13, 2011, July 27, 2011, and
August 19, 2011, plaintiff ran out of his psychiatric medications and either went to his VA
practitioner or the emergency room seeking a refill. Often plaintiff did this after his
anxiety symptoms became problematic. (Tr. 477–78, 570, 697, 746–64, 1113–14, 1117–
18, 1142.) Additionally, his substance abuse and withholding of prescription information
from his VA physicians also contributed to his altered mental states. (Tr. 25, 802, 854–
55.) Conversely, when plaintiff was complaint with his medications, he reported feeling
better. (Tr. 1051, 1081, 1093.) This was also reflected in his GAF score which was
reported as low as 38 by Nurse Murdick on July 30, 2007, but had improved to 62 during
2010 and was last reported as 55 on June 18, 2012 by Nurse Gleason at the VA. (Tr. 486,
675–680, 1082.)

A GAF score in the 50s indicates a person may have moderate

symptoms or moderate difficulty in social or occupational functioning. DSM IV at 34.
This GAF score conflicts with Nurse Murdick’s own assessment that plaintiff would be
unable to meet competitive standards.

The ALJ applied plaintiff’s symptoms and

limitations supported by the record as a whole by limiting plaintiff to “simple instructions
and non-detailed tasks.” The ALJ properly failed to accept Nurse Murdick’s mental RFC
assessment in its entirety.

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C. Non-Examining Medical Source Opinions
Finally, plaintiff argues that the non-examining source, Joan Singer, Ph.D., was
rejected without a rationale. (Doc. 17 at 10.) The Commissioner argues that the ALJ
provided a rationale for affording Dr. Singer’s opinion less weight.
An ALJ should state whether she discounts a physician’s findings and explain why
she has discounted them. Grable v. Colvin, 770 F.3d 1196, 1201–02 (8th Cir. 2014);
McCadney v. Astrue, 519 F.3d 764, 765 (8th Cir. 2008). However, a deficiency in
opinion-writing is “‘not a sufficient reason for setting aside an administrative finding’
where the record supports the overall determination.” Scott ex rel. Scott v. Astrue, 539
F.3d 818, 822 (8th Cir. 2008). The explanation given by the ALJ must be substantial
enough to allow for meaningful judicial review. Id.
The ALJ discounted Dr. Singer’s mental RFC assessment and her psychiatric
review of plaintiff. (Tr. 26.) The ALJ clearly stated that Dr. Singer’s opinon was
rendered prior to the nurse practitioner’s medical source statement and other mental health
treatment. (Tr. 26.) After Dr. Singer’s opinon was provided on October 1, 2009 (Tr. 536–
549), plaintiff’s GAF increased to a maximum of 62, at its highest, and remained in the
50s, except when he was not adhering to his medication regime. (Tr. 675–80, 845–54,
1082.) Additionally, after Dr. Singer provided her opinion, which described his severity
as only “partially credible,” plaintiff had several episodes of running out of his prescribed
medication. This resulted in an increase of his anxiety and depression. The claimant’s
own noncompliance with medical recommendations and prescribed treatments may be
considered for various reasons, including credibility of subjective complaints. See e.g.,
Wildman v. Astrue, 596 F.3d 959, 968 (8th Cir. 2010) (discrediting claimant’s subjective
complaints due to her noncompliance with prescribed diet and medications); Owen, 551
F.3d at 800 (discrediting a medical opinion because it failed to also consider claimant’s
noncompliance); Brown v. Barnhart, 390 F.3d 535, 540-41 (8th Cir. 2004) (finding no
disability because claimant’s hypertension could be controlled with medication, which she
chose not to take). Although the ALJ failed to mention Dr. Singer’s RFC assessment of
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plaintiff’s pulmonary and back limitations, the RFC already sufficiently limited the
plaintiff to avoiding fumes, odors, dust, gases, climbing ropes, ladders, scaffolds, and
heights for his COPD, asthma, and lower back problems. (Tr. 18.) The ALJ properly
listed her reasons to disregard the opinion of Dr. Singer, and even if the ALJ’s opinion
was not detailed enough in this regard, the error was harmless.

D. Hypothetical Question
Plaintiff argues that the hypothetical question presented to the VE did not
accurately capture his impairments. (Doc. 17 at 11.) Defendant argues that, as long as it
was clear to the VE what plaintiff’s limitations would be, the description is sufficient.
(Doc. 22 at 8.)
A hypothetical question must accurately capture the limitations of a plaintiff in
order for it to be considered substantial evidence. Howard v. Massanari, 255 F.3d 577
(8th Cir. 2001); Meyerpeter v. Astrue, 902 F. Supp. 2d 1219, 1232 (E.D. Mo. 2012).
However the hypothetical “need not use specific diagnostic or symptomatic terms where
other descriptive terms can adequately define the claimant’s impairments.” Howard, 255
F.3d at 577. Additionally, if the omission or wording would have had no effect on the
VE’s assessment, it is harmless error. Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir.
2007); Meyerpeter, 902 F. Supp. 2d at 1232.
The ALJ’s hypothetical question described a person who would be limited to light
exertional work, and avoiding ropes, ladders, scaffolding, hazardous heights, fumes,
odors, dust, and gases. The hypothetical person would also be limited to unskilled work.
The ALJ’s written opinion describes the RFC as only allowing plaintiff to perform
“simple instructions or non-detailed tasks.” During the hearing, the VE defined “unskilled
work” as that work which only requires the ability to understand, remember, and carry out
at least simple instructions and non-detailed tasks. (Doc. 22 at 8.) This description is
reflected in the ALJ’s limitations for plaintiff’s RFC finding.

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Therefore, the VE’s

determination that plaintiff could perform jobs that exist in the local and national
economies is supported by substantial evidence.

VI. CONCLUSION
For the reasons set forth above, the decision of the Commissioner of Social
Security is affirmed. An appropriate Judgment Order is issued herewith.

S/ David D. Noce
f
UNITED STATES MAGISTRATE JUDGE

Signed on September 22, 2015

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