Smith v. Colvin

Filing 27

JUDGMENT. In accordance with the oral opinion stated on the record on March 10, 2016, a transcript of which is attached hereto and incorporated herein, IT IS HEREBY ORDERED, ADJUDGED and DECREED that the decision of the Commissioner is AFFIRMED, judgment is entered for defendant Carolyn W. Colvin, Acting Commissioner of Social Security, and plaintiff's complaint is DISMISSED with prejudice. Signed by District Judge Catherine D. Perry on 3/11/2016. (Attachments: # 1 Transcript)(CBL)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI

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DOUGLAS EUGENE SMITH,

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Plaintiff,
Cause No. 4:14cv-1722CDP

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Vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

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Defendant.

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EXCERPT OF RULING FROM HEARING
MARCH 10, 2016

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BEFORE THE HONORABLE CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
EASTERN DIVISION
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APPEARANCES:

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For Plaintiff:
Mr. Steve Wolf
Law Office of Steve Wolf, LLC
11939 Manchester #211
St. Louis, MO 63131

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For Defendant:
Mr. Jeffrey J. Leifert
Social Security Administration
Federal Office Building
601 E. 12th Street
Kansas City, MO 64106

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Reported by:
Lisa M. Paczkowski, CCR, RPR
Official Court Reporter
United States District Court
111 South 10th Street
St. Louis, MO 63102
[phone]

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MARCH 10, 2016

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THE COURT:

Counsel, this is Judge Perry.

Are you

there?

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MR. WOLF:

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MR. LEIFERT:

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THE COURT:

Yes.
Yes.
I pushed the hang-up button.

I'm very

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glad I didn't actually hang up on you.

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back on the record, and I am going to tell you my decision in

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this case.

So I have counsel

This oral opinion that I am stating now, this

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portion will be transcribed and attached to the judgment in

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the case and made part of the record.

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further written opinion.

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There will not be a

The case, as we stated, has been fully-briefed, and

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your arguments have been helpful, counsel.

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for resolution.

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affirm the decision of the Commissioner, if the decision is

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supported by substantial evidence when considering the record

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as a whole.

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judgment for that of the Administrative Law Judge or the

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Commissioner.

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So it is ready

As you all know, my responsibility is to

I do not have the authority to substitute my

On reviewing all of this, and considering all of

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the arguments, I do conclude that the evidence is sufficient

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to support the Administrative Law Judge's determination in

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this case, and I will affirm the decision, because it is

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supported by substantial evidence on the record as a whole.

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The plaintiff has raised arguments that the -- both

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in the briefs and here today -- criticizing the credibility

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analysis and the residual functional capacity determination,

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and although today's arguments have focused on whether the

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RFC adequately considered the moderate limitations on

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concentration, persistence, and pace, the briefs did talk

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about the physical issues as well, and so I'm going to

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address both of them.

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The ALJ is not required -- let me talk about

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credibility first.

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ALJ is not required to explicitly discuss each Polaski

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factor.

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those factors before discounting the claimant's subjective

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complaint.

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subjective complaints, if there are inconsistencies in the

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record as a whole, and I must defer to the ALJ's credibility

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findings as long as he explicitly discredits the testimony

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and gives a good reason for doing so.

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These obviously run together.

But the

It is sufficient if he acknowledges and considers

And so, but he is allowed to disbelieve

I agree with the counsel for the Commissioner that

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in this case, the ALJ was thorough in explaining the how each

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limitation ties to the residual functional capacity, and also

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explaining and citing medical evidence in the record, and

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also explaining his credibility determinations.

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The ALJ did conclude that he -- that Mr. Smith's
impairments could cause some of the alleged symptoms, but not

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-- didn't agree, didn't find credible, the statements

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concerning the intensity, persistence, and limiting effect of

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those symptoms.

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objective evidence that was inconsistent with the plaintiff's

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claims, as well as some other credibility issues.

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are all supported by the record.

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He noted noncompliance with treatment, and

And those

With regard to the noncompliance, there are several

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reports of times that Smith was not taking his medications,

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and also the ALJ concluded that the condition generally

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improved when he was getting regular treatment and was

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compliant with his medications.

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reason to discredit allegations, especially where the

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evidence tends to show that the impairments are

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well-controlled when the claimant is in compliance, but the

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ALJ has to consider whether a good reason supports the

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failure to comply.

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And noncompliance is a

Obviously, financial -- lack of financial resources

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to follow treatment is something that could be considered a

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justifiable cause for noncompliance; and additionally, the

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mental health issues can also sometimes be a cause for

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noncompliance.

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The evidence in the case does show that there were

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many times when the claimant reported difficulty in obtaining

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medication for financial reasons, and that could constitute

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justifiable cause, except that there are many times when the

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medication was available to the plaintiff, and he refused to

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take it.

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in early 2012 and again in December of 2012.

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those times, there is many references that the claimant

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refused his medications time and again, and there were a

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couple of references in the record that were noted by

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plaintiff's counsel here today where he said that he had side

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effects of the medication.

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But if you look at those records, or take the record as a

And in particular, he was incarcerated for sometime
And during

He said they made his head spin.

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whole, during that time, he was refusing everything.

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refusing to even be evaluated a couple of times.

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basically was just saying "no" to everything.

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evidence that that was because of side effects, and when you

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look at all of the other medical records, the others don't

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indicate that he had side effects; in fact, they indicate the

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contrary.

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He was

He

There is no

He does have, obviously, a history of major

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depressive disorder as well as suicidal ideation.

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days when he was in jail on suicide watch and made statements

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that sounded like, you know, that sounded suicidal, saying

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things like "It is my time to go."

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was trying to give himself a heart attack.

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least, apparent suicide attempt; however, there is also

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references that he was manipulative and often manipulated the

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system.

He spent

At one point, he said he
There was one, at

This was while in prison certainly that there really

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-- the doctors there said they agreed there was some mental

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illness, including depression, but that his actions seem to

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be more motivated by trying to, you know, get certain things,

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or get what he wanted.

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So I think because there is substantial evidence in

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the records to conclude that the noncompliance was not a

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result of his mental illness, the ALJ's reliance on this was

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within the zone of reasonable choice.

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the credibility determinations, the financial noncompliance

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is in there, but there is so much else that indicates other

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reasons that he was simply noncompliant, because that's what

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he chose to do.

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hospital personnel that he wasn't really suicidal, but he

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told the police that he was, because he wanted to get into

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the hospital.

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I note also in making

On at least one occasion, he told the

So I think that the noncompliance reason for

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discrediting his opinions is supported by evidence, and the

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ALJ did not err in doing that.

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for discrediting, or not, the credibility determination, has

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to do with the claimant's physical issues, and he has -- he

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has some physical issues obviously the degenerate disk

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disease, the joint disease in his hips, the coronary artery

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disease, COPD, those are all -- the ALJ did find those to be

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severe, but the ALJ's -- the claimant's testimony about those

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things was the ALJ found not to be credible; and you know, he

The other reason he gave was

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complained he had difficulty ambulating, but there were

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several instances where the claimant had reported to the

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police, or the hospital personnel, that he ran or walked

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great distances.

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I saw that he said he walked 12 miles.

He said

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that he was running from the police.

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example where he said he walked 50 or 60 miles, or he had

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been walking 20 hours, and although that sounded kind of

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incredible, it may have, in fact, been true, based on what

There was an extreme

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the records show about where he was, and how he got where he

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was.

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was physically able to walk much better than he -- and move

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about and do things much better than he claims.

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legitimate reason for discrediting his testimony.

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But in any event, it looks pretty clear that he had --

So that's a

The ALJ also found his testimony about illegal

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drugs to be -- to have not been true, and then there was an

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issue about his shoveling snow.

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before the alleged onset date, but these were all things that

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the ALJ was entitled to consider, and I believe that he did

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give sufficient reasons for his adverse credibility finding,

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and so substantial evidence supports those reasons, and he

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wasn't required to say, under Polaski factor A, Polaski

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factor B, as long as he did consider the daily activities and

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the effectiveness of the medication and the objective medical

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evidence, this is not err.

I know that was shortly

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And again, even if, as counsel has reminded us, as

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they do, if there is evidence to support the ALJ's

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determination, I have to affirm it, even if there is other

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evidence as well, as long as you consider all of it.

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Now the residual functional capacity, in the

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briefs, the plaintiff argued that he had not argued a number

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of things, and here today, has focused on the mental issue of

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not being -- and argued that there should have been

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limitation on not staying on task.

I will get to that in a

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moment, but I want to briefly discuss the physical

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limitations as well.

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on a second -- I believe the ALJ did thoroughly consider and

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discuss all of the medical evidence on the activities of

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daily living, etc., and supported by reference to the medical

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records each of the physical limitations, such as the lifting

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requirements, the ability to ambulate, and the ability to sit

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and stand, and things like that.

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And those physical limitations -- hold

So the ALJ talks about the medical evidence that he

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believes supported each of those, and he did have a

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limitation in his RFC that the claimant would need to change

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positions every 30 minutes for one or two minutes, although

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he did conclude that he could remain on task while doing so.

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So I believe the physical issues were adequately determined

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by the ALJ.

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With regard to the mental issues, the plaintiffs

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argued that the ALJ failed to give sufficient weight to the

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opinion of treating doctor, the psychiatrist, Dr. Arain, and

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that the plaintiff had received psychiatric care under the

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Crider Health Center in 2013 and 2014.

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argues that the ALJ should have included limitations

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regarding concentration, persistence, and pace, and the ALJ

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did find that he had moderate difficulties in this area, and

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limited him to simple and routine tasks.

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The plaintiff also

Limiting him to simple and routine tasks, there are

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cases that I would cite the Howard v.Massanari case 255 F.3d

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577, from the Eighth Circuit, saying that a limitation of

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doing simple routine repetitive tasks does capture

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deficiencies in concentration, persistence, and pace.

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are other cases saying the same thing.

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that the ALJ erred by failing to include any specific

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limitations regarding production quotas, or the other things

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that the plaintiff has argued for.

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There

And so I don't think

And I just want to -- you know, when the ALJ

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carefully analyzed his credibility, and found his testimony

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not to be credible, that included his statement that he

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didn't, because of that finding, he did not err in excluding

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limitations arising from his statements that he had crying

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spells, you know, as often as he did, because I think that

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there is evidence to show that's not credible.

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So in terms of the treating doctor's opinions, they

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are to be given, obviously, the treating source opinions are

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to be given controlling weight, if they are well-supported by

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medically-acceptable clinical and laboratory techniques, and

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are not inconsistent with other evidence in the records, or

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other substantial evidence.

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control, and the record has to be evaluated as a whole.

But it doesn't automatically

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Dr. Arain did find, in his opinion letter, that the

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claimant had a history of anxiety and mood swings that caused

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episodes of decompensation, although these were more limited

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in duration than would count under the other part of the

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analysis, but also difficulties in maintaining social

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functioning.

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difficulty working full-time, dealing with work-related

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stress, demonstrating reliability, and that his impairment

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may cause him to be absent from work.

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And he said that the plaintiff may have

The ALJ actually quoted this, and treated this as

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if he said he would have those limitations, which is the same

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argument that plaintiff's counsel has made here today.

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think the ALJ treated him as if he had said "would" instead

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of "may".

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the same way, but assuming that that should be the same.

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know Dr. Arain also recommended vocational rehabilitation,

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which the ALJ noted was indicative that the plaintiff was

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capable of working in some capacity.

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credit Dr. Arain's opinion, because he concluded that it was

So I

If I were evaluating it, I might not have done it
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But the ALJ didn't

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inconsistent with the mental health treatment history, the

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clinical notes, and the mental status examination finding,

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which all showed only mild to moderate limitations, and also

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with the treatment records from his own clinic, which showed

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he had appropriate cooperative behavior, intact abstract

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reasoning, and fair judgment and reasoning, as well as normal

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intellect and memory.

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I concluded that the ALJ's accounting for the
mental concerns related to the depression and anxiety were

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appropriate, as he did include it in his residual functional

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capacity, and that the limitations he used were supported by

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substantial evidence on the record as a whole, and that was

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that limiting it to simple and routine tasks, which does

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adequately account for potential concentration or persistence

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issues, concentration, persistence, and pace, and then

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limiting him to the limitations that accounted for the social

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anxiety, and the interactions with coworkers and supervisors

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were limited, as well as work regarding negotiation or

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working with the general public.

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So when you consider everything in the records,

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including the timeframes when Dr. Arain treated the claimant,

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as well as when other people had treated him, and you

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consider all of the records, the ALJ did not err in affording

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no weight to that opinion that the plaintiff would have

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difficulty maintaining full-time employment.

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So for all of the reasons I believe that the

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Administrative Law Judge's or the Commissioner's decision is

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supported by substantial evidence on the record as a whole,

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and I'm not, under the standards, I am to make that

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determination, whether the decision complies with the

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relevant legal requirements.

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evidence, and so because it is so supported, I will affirm

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the decision.

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I'm not to reweigh the

So that is my opinion in the case.

I will affirm

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the Commissioner.

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this opinion.

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opinion to that judgment.

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transcript, the judgment won't come out immediately, although

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our court reporter is pretty fast on these things, so it

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might be a few days that you will get the judgment with the

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attached opinion fairly soon.

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from either counsel at this time?

I will issue a judgment consistent with

I will attach a transcript of this oral

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MR. WOLF:

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MR. LEIFERT:

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THE COURT:

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Because we need to prepare the

All right, anything further

No, your Honor.
Nothing further, Judge.
Thank you all.

Thank you.

So I will disconnect

the phone, and court is in recess.
(End of proceedings)

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REPORTER'S CERTIFICATE

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I, LISA M. PACZKOWSKI, RPR, CCR, Official Court

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Reporter for the United States District Court for the Eastern

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District of Missouri do hereby certify that the foregoing is

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a true and correct transcript of the proceedings had in this

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cause as same appears from my stenotype notes made personally

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during the progress of said proceedings.

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/S/ Lisa M. Paczkowski

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LISA M. PACZKOWSKI

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Official Court Reporter

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RPR, CCR