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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1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI 2 3 DOUGLAS EUGENE SMITH, 4 Plaintiff, Cause No. 4:14cv-1722CDP 5 6 Vs. CAROLYN W. COLVIN, Acting Commissioner of Social Security, 7 Defendant. 8 9 ============================================================= EXCERPT OF RULING FROM HEARING MARCH 10, 2016 10 11 12 BEFORE THE HONORABLE CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE EASTERN DIVISION ============================================================= APPEARANCES: 13 14 15 For Plaintiff: Mr. Steve Wolf Law Office of Steve Wolf, LLC 11939 Manchester #211 St. Louis, MO 63131 16 17 18 19 For Defendant: Mr. Jeffrey J. Leifert Social Security Administration Federal Office Building 601 E. 12th Street Kansas City, MO 64106 20 21 22 23 24 25 Reported by: Lisa M. Paczkowski, CCR, RPR Official Court Reporter United States District Court 111 South 10th Street St. Louis, MO 63102 (314) 244-7985 2 1 MARCH 10, 2016 2 3 THE COURT: Counsel, this is Judge Perry. Are you there? 4 MR. WOLF: 5 MR. LEIFERT: 6 THE COURT: Yes. Yes. I pushed the hang-up button. I'm very 7 glad I didn't actually hang up on you. 8 back on the record, and I am going to tell you my decision in 9 this case. So I have counsel This oral opinion that I am stating now, this 10 portion will be transcribed and attached to the judgment in 11 the case and made part of the record. 12 further written opinion. 13 There will not be a The case, as we stated, has been fully-briefed, and 14 your arguments have been helpful, counsel. 15 for resolution. 16 affirm the decision of the Commissioner, if the decision is 17 supported by substantial evidence when considering the record 18 as a whole. 19 judgment for that of the Administrative Law Judge or the 20 Commissioner. 21 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 22 the arguments, I do conclude that the evidence is sufficient 23 to support the Administrative Law Judge's determination in 24 this case, and I will affirm the decision, because it is 25 supported by substantial evidence on the record as a whole. 3 1 The plaintiff has raised arguments that the -- both 2 in the briefs and here today -- criticizing the credibility 3 analysis and the residual functional capacity determination, 4 and although today's arguments have focused on whether the 5 RFC adequately considered the moderate limitations on 6 concentration, persistence, and pace, the briefs did talk 7 about the physical issues as well, and so I'm going to 8 address both of them. 9 The ALJ is not required -- let me talk about 10 credibility first. 11 ALJ is not required to explicitly discuss each Polaski 12 factor. 13 those factors before discounting the claimant's subjective 14 complaint. 15 subjective complaints, if there are inconsistencies in the 16 record as a whole, and I must defer to the ALJ's credibility 17 findings as long as he explicitly discredits the testimony 18 and gives a good reason for doing so. 19 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 20 in this case, the ALJ was thorough in explaining the how each 21 limitation ties to the residual functional capacity, and also 22 explaining and citing medical evidence in the record, and 23 also explaining his credibility determinations. 24 25 The ALJ did conclude that he -- that Mr. Smith's impairments could cause some of the alleged symptoms, but not 4 1 -- didn't agree, didn't find credible, the statements 2 concerning the intensity, persistence, and limiting effect of 3 those symptoms. 4 objective evidence that was inconsistent with the plaintiff's 5 claims, as well as some other credibility issues. 6 are all supported by the record. 7 He noted noncompliance with treatment, and And those With regard to the noncompliance, there are several 8 reports of times that Smith was not taking his medications, 9 and also the ALJ concluded that the condition generally 10 improved when he was getting regular treatment and was 11 compliant with his medications. 12 reason to discredit allegations, especially where the 13 evidence tends to show that the impairments are 14 well-controlled when the claimant is in compliance, but the 15 ALJ has to consider whether a good reason supports the 16 failure to comply. 17 And noncompliance is a Obviously, financial -- lack of financial resources 18 to follow treatment is something that could be considered a 19 justifiable cause for noncompliance; and additionally, the 20 mental health issues can also sometimes be a cause for 21 noncompliance. 22 The evidence in the case does show that there were 23 many times when the claimant reported difficulty in obtaining 24 medication for financial reasons, and that could constitute 25 justifiable cause, except that there are many times when the 5 1 medication was available to the plaintiff, and he refused to 2 take it. 3 in early 2012 and again in December of 2012. 4 those times, there is many references that the claimant 5 refused his medications time and again, and there were a 6 couple of references in the record that were noted by 7 plaintiff's counsel here today where he said that he had side 8 effects of the medication. 9 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. 10 whole, during that time, he was refusing everything. 11 refusing to even be evaluated a couple of times. 12 basically was just saying "no" to everything. 13 evidence that that was because of side effects, and when you 14 look at all of the other medical records, the others don't 15 indicate that he had side effects; in fact, they indicate the 16 contrary. 17 He was He There is no He does have, obviously, a history of major 18 depressive disorder as well as suicidal ideation. 19 days when he was in jail on suicide watch and made statements 20 that sounded like, you know, that sounded suicidal, saying 21 things like "It is my time to go." 22 was trying to give himself a heart attack. 23 least, apparent suicide attempt; however, there is also 24 references that he was manipulative and often manipulated the 25 system. He spent At one point, he said he There was one, at This was while in prison certainly that there really 6 1 -- the doctors there said they agreed there was some mental 2 illness, including depression, but that his actions seem to 3 be more motivated by trying to, you know, get certain things, 4 or get what he wanted. 5 So I think because there is substantial evidence in 6 the records to conclude that the noncompliance was not a 7 result of his mental illness, the ALJ's reliance on this was 8 within the zone of reasonable choice. 9 the credibility determinations, the financial noncompliance 10 is in there, but there is so much else that indicates other 11 reasons that he was simply noncompliant, because that's what 12 he chose to do. 13 hospital personnel that he wasn't really suicidal, but he 14 told the police that he was, because he wanted to get into 15 the hospital. 16 I note also in making On at least one occasion, he told the So I think that the noncompliance reason for 17 discrediting his opinions is supported by evidence, and the 18 ALJ did not err in doing that. 19 for discrediting, or not, the credibility determination, has 20 to do with the claimant's physical issues, and he has -- he 21 has some physical issues obviously the degenerate disk 22 disease, the joint disease in his hips, the coronary artery 23 disease, COPD, those are all -- the ALJ did find those to be 24 severe, but the ALJ's -- the claimant's testimony about those 25 things was the ALJ found not to be credible; and you know, he The other reason he gave was 7 1 complained he had difficulty ambulating, but there were 2 several instances where the claimant had reported to the 3 police, or the hospital personnel, that he ran or walked 4 great distances. 5 I saw that he said he walked 12 miles. He said 6 that he was running from the police. 7 example where he said he walked 50 or 60 miles, or he had 8 been walking 20 hours, and although that sounded kind of 9 incredible, it may have, in fact, been true, based on what There was an extreme 10 the records show about where he was, and how he got where he 11 was. 12 was physically able to walk much better than he -- and move 13 about and do things much better than he claims. 14 legitimate reason for discrediting his testimony. 15 But in any event, it looks pretty clear that he had -- So that's a The ALJ also found his testimony about illegal 16 drugs to be -- to have not been true, and then there was an 17 issue about his shoveling snow. 18 before the alleged onset date, but these were all things that 19 the ALJ was entitled to consider, and I believe that he did 20 give sufficient reasons for his adverse credibility finding, 21 and so substantial evidence supports those reasons, and he 22 wasn't required to say, under Polaski factor A, Polaski 23 factor B, as long as he did consider the daily activities and 24 the effectiveness of the medication and the objective medical 25 evidence, this is not err. I know that was shortly 8 1 And again, even if, as counsel has reminded us, as 2 they do, if there is evidence to support the ALJ's 3 determination, I have to affirm it, even if there is other 4 evidence as well, as long as you consider all of it. 5 Now the residual functional capacity, in the 6 briefs, the plaintiff argued that he had not argued a number 7 of things, and here today, has focused on the mental issue of 8 not being -- and argued that there should have been 9 limitation on not staying on task. I will get to that in a 10 moment, but I want to briefly discuss the physical 11 limitations as well. 12 on a second -- I believe the ALJ did thoroughly consider and 13 discuss all of the medical evidence on the activities of 14 daily living, etc., and supported by reference to the medical 15 records each of the physical limitations, such as the lifting 16 requirements, the ability to ambulate, and the ability to sit 17 and stand, and things like that. 18 And those physical limitations -- hold So the ALJ talks about the medical evidence that he 19 believes supported each of those, and he did have a 20 limitation in his RFC that the claimant would need to change 21 positions every 30 minutes for one or two minutes, although 22 he did conclude that he could remain on task while doing so. 23 So I believe the physical issues were adequately determined 24 by the ALJ. 25 With regard to the mental issues, the plaintiffs 9 1 argued that the ALJ failed to give sufficient weight to the 2 opinion of treating doctor, the psychiatrist, Dr. Arain, and 3 that the plaintiff had received psychiatric care under the 4 Crider Health Center in 2013 and 2014. 5 argues that the ALJ should have included limitations 6 regarding concentration, persistence, and pace, and the ALJ 7 did find that he had moderate difficulties in this area, and 8 limited him to simple and routine tasks. 9 The plaintiff also Limiting him to simple and routine tasks, there are 10 cases that I would cite the Howard v.Massanari case 255 F.3d 11 577, from the Eighth Circuit, saying that a limitation of 12 doing simple routine repetitive tasks does capture 13 deficiencies in concentration, persistence, and pace. 14 are other cases saying the same thing. 15 that the ALJ erred by failing to include any specific 16 limitations regarding production quotas, or the other things 17 that the plaintiff has argued for. 18 There And so I don't think And I just want to -- you know, when the ALJ 19 carefully analyzed his credibility, and found his testimony 20 not to be credible, that included his statement that he 21 didn't, because of that finding, he did not err in excluding 22 limitations arising from his statements that he had crying 23 spells, you know, as often as he did, because I think that 24 there is evidence to show that's not credible. 25 So in terms of the treating doctor's opinions, they 10 1 are to be given, obviously, the treating source opinions are 2 to be given controlling weight, if they are well-supported by 3 medically-acceptable clinical and laboratory techniques, and 4 are not inconsistent with other evidence in the records, or 5 other substantial evidence. 6 control, and the record has to be evaluated as a whole. But it doesn't automatically 7 Dr. Arain did find, in his opinion letter, that the 8 claimant had a history of anxiety and mood swings that caused 9 episodes of decompensation, although these were more limited 10 in duration than would count under the other part of the 11 analysis, but also difficulties in maintaining social 12 functioning. 13 difficulty working full-time, dealing with work-related 14 stress, demonstrating reliability, and that his impairment 15 may cause him to be absent from work. 16 And he said that the plaintiff may have The ALJ actually quoted this, and treated this as 17 if he said he would have those limitations, which is the same 18 argument that plaintiff's counsel has made here today. 19 think the ALJ treated him as if he had said "would" instead 20 of "may". 21 the same way, but assuming that that should be the same. 22 know Dr. Arain also recommended vocational rehabilitation, 23 which the ALJ noted was indicative that the plaintiff was 24 capable of working in some capacity. 25 credit Dr. Arain's opinion, because he concluded that it was So I If I were evaluating it, I might not have done it I But the ALJ didn't 11 1 inconsistent with the mental health treatment history, the 2 clinical notes, and the mental status examination finding, 3 which all showed only mild to moderate limitations, and also 4 with the treatment records from his own clinic, which showed 5 he had appropriate cooperative behavior, intact abstract 6 reasoning, and fair judgment and reasoning, as well as normal 7 intellect and memory. 8 9 I concluded that the ALJ's accounting for the mental concerns related to the depression and anxiety were 10 appropriate, as he did include it in his residual functional 11 capacity, and that the limitations he used were supported by 12 substantial evidence on the record as a whole, and that was 13 that limiting it to simple and routine tasks, which does 14 adequately account for potential concentration or persistence 15 issues, concentration, persistence, and pace, and then 16 limiting him to the limitations that accounted for the social 17 anxiety, and the interactions with coworkers and supervisors 18 were limited, as well as work regarding negotiation or 19 working with the general public. 20 So when you consider everything in the records, 21 including the timeframes when Dr. Arain treated the claimant, 22 as well as when other people had treated him, and you 23 consider all of the records, the ALJ did not err in affording 24 no weight to that opinion that the plaintiff would have 25 difficulty maintaining full-time employment. 12 1 So for all of the reasons I believe that the 2 Administrative Law Judge's or the Commissioner's decision is 3 supported by substantial evidence on the record as a whole, 4 and I'm not, under the standards, I am to make that 5 determination, whether the decision complies with the 6 relevant legal requirements. 7 evidence, and so because it is so supported, I will affirm 8 the decision. 9 I'm not to reweigh the So that is my opinion in the case. I will affirm 10 the Commissioner. 11 this opinion. 12 opinion to that judgment. 13 transcript, the judgment won't come out immediately, although 14 our court reporter is pretty fast on these things, so it 15 might be a few days that you will get the judgment with the 16 attached opinion fairly soon. 17 from either counsel at this time? I will issue a judgment consistent with I will attach a transcript of this oral 18 MR. WOLF: 19 MR. LEIFERT: 20 THE COURT: 21 22 23 24 25 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) 13 1 REPORTER'S CERTIFICATE 2 3 I, LISA M. PACZKOWSKI, RPR, CCR, Official Court 4 Reporter for the United States District Court for the Eastern 5 District of Missouri do hereby certify that the foregoing is 6 a true and correct transcript of the proceedings had in this 7 cause as same appears from my stenotype notes made personally 8 during the progress of said proceedings. 9 10 /S/ Lisa M. Paczkowski 11 LISA M. PACZKOWSKI 12 Official Court Reporter 13 14 15 16 17 18 19 20 21 22 23 24 25 RPR, CCR

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