Flowers v. Colvin

Filing 19

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the relief sought by Plaintiff in her Complaint and Brief in Support of Complaint (Docs. 1 , 15 ) is DENIED; IT IS ORDERED that a separate judgment be entered incorporating this Memorandum and Order. Signed by Magistrate Judge Noelle C. Collins on December 18, 2015. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
EREBERTA FLOWERS,

)
)
Plaintiff,
)
)
V.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Case No. 4:15CV177NCC

MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the
final decision of the Commissioner denying the application of Ereberta Flowers
(Plaintiff) for Disability Insurance Benefits (DIB) under Title II of the Social
Security Act (the Act), 42 U.S.C. §§ 401 et seq., and for Supplemental Security
Income (SSI) under Title XVI of the Social Security Act (the Act), 42 U.S.C. §§
1381 et seq. Plaintiff has filed a brief in support of the Complaint. (Doc. 15).
Defendant has filed a brief in support of the Answer. (Doc. 18). The parties have
consented to the jurisdiction of the undersigned United States Magistrate Judge
pursuant to Title 28 U.S.C. § 636(c). (Doc. 8).

I.
PROCEDURAL HISTORY
On May 9, 2011, Plaintiff filed applications for DIB and SSI, alleging a
disability onset date of November 30, 2009.

(Tr. 11, 116, 123).

Plaintiff’s

applications were denied, and she requested a hearing before an Administrative
Law Judge (ALJ).

(Tr. 11, 64-68, 71).

After a hearing, by decision, dated

September 24, 2013, the ALJ found Plaintiff not disabled.

(Tr. 12-21).

On

December 11, 2014, the Appeals Council denied Plaintiff’s request for review.
(Tr. 1-6).

As such, the ALJ’s decision stands as the final decision of the

Commissioner.
II.
LEGAL STANDARDS
Under the Social Security Act, the Commissioner has established a five-step
process for determining whether a person is disabled. 20 C.F.R. §§ 416.920,
404.1529. “‘If a claimant fails to meet the criteria at any step in the evaluation of
disability, the process ends and the claimant is determined to be not disabled.’”
Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting Eichelberger v.
Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the
claimant first cannot be engaged in “substantial gainful activity” to qualify for
disability benefits. 20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant
must have a severe impairment. 20 C.F.R. §§ 416.920(c), 404.1520(c). The Social

2

Security Act defines “severe impairment” as “any impairment or combination of
impairments which significantly limits [claimant’s] physical or mental ability to do
basic work activities.” Id. “The sequential evaluation process may be terminated
at step two only when the claimant’s impairment or combination of impairments
would have no more than a minimal impact on [his or] her ability to work.” Page
v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari,
250 F.3d 603, 605 (8th Cir. 2001) (citing Nguyen v. Chater, 75 F.3d 429, 430-31
(8th Cir. 1996)).
Third, the ALJ must determine whether the claimant has an impairment
which meets or equals one of the impairments listed in the Regulations. 20 C.F.R.
§§ 416.920(d), 404.1520(d); pt. 404, subpt. P, app. 1. If the claimant has one of, or
the medical equivalent of, these impairments, then the claimant is per se disabled
without consideration of the claimant’s age, education, or work history. See id.
Fourth, the impairment must prevent the claimant from doing past relevant
work. 20 C.F.R. §§ 416.920(f), 404.1520(f). The burden rests with the claimant at
this fourth step to establish his or her Residual Functional Capacity (RFC). See
Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008) (“Through step four of this
analysis, the claimant has the burden of showing that she is disabled.”);
Eichelberger, 390 F.3d at 590-91; Masterson v. Barnhart, 363 F.3d 731, 737 (8th
Cir. 2004); Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). The ALJ

3

will review a claimant’s RFC and the physical and mental demands of the work the
claimant has done in the past. 20 C.F.R. § 404.1520(f).
Fifth, the severe impairment must prevent the claimant from doing any other
work. 20 C.F.R. §§ 416.920(g), 404.1520(g). At this fifth step of the sequential
analysis, the Commissioner has the burden of production to show evidence of other
jobs in the national economy that can be performed by a person with the claimant’s
RFC. See Steed, 524 F.3d at 874 n.3; Young, 221 F.3d at 1069 n.5. If the
claimant meets these standards, the ALJ will find the claimant to be disabled.
“The ultimate burden of persuasion to prove disability, however, remains with the
claimant.” Id. See also Harris v. Barnhart, 356 F.3d 926, 931 n.2 (8th Cir. 2004)
(citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v. Barnhart, 377 F.3d
801, 806 (8th Cir. 2004) (“The burden of persuasion to prove disability and to
demonstrate RFC remains on the claimant, even when the burden of production
shifts to the Commissioner at step five.”); Charles v. Barnhart, 375 F.3d 777, 782
n.5 (8th Cir. 2004) (“[T]he burden of production shifts to the Commissioner at step
five to submit evidence of other work in the national economy that [the claimant]
could perform, given her RFC.”).

Even if a court finds that there is a

preponderance of the evidence against the ALJ’s decision, the decision must be
affirmed if it is supported by substantial evidence. See Clark v. Heckler, 733 F.2d
65, 68 (8th Cir. 1984). “Substantial evidence is less than a preponderance but is

4

enough that a reasonable mind would find it adequate to support the
Commissioner’s conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th
Cir. 2002). See also Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007). In Bland v.
Bowen, 861 F.2d 533, 535 (8th Cir. 1988), the Eighth Circuit Court of Appeals
held:
The concept of substantial evidence is something less than the weight
of the evidence and it allows for the possibility of drawing two
inconsistent conclusions, thus it embodies a zone of choice within
which the Secretary may decide to grant or deny benefits without
being subject to reversal on appeal.
See also Lacroix v. Barnhart, 465 F.3d 881, 885 (8th Cir. 2006) (“[W]e may not
reverse merely because substantial evidence exists for the opposite decision.”)
(quoting Johnson v. Chater, 87 F.3d 1015, 1017 (8th Cir. 1996)); Hartfield v.
Barnhart, 384 F.3d 986, 988 (8th Cir. 2004) (“[R]eview of the Commissioner’s
final decision is deferential.”).
It is not the job of the district court to re-weigh the evidence or review the
factual record de novo. See Cox, 495 F.3d at 617; Guilliams v. Barnhart, 393 F.3d
798, 801 (8th Cir. 2005); McClees v. Shalala, 2 F.3d 301, 302 (8th Cir. 1993);
Murphy v. Sullivan, 953 F.2d 383, 384 (8th Cir. 1992). Instead, the district court
must simply determine whether the quantity and quality of evidence is enough so
that a reasonable mind might find it adequate to support the ALJ’s conclusion. See
Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing McKinney v. Apfel, 228

5

F.3d 860, 863 (8th Cir. 2000)). Weighing the evidence is a function of the ALJ,
who is the fact-finder. See Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir. 1987).
See also Onstead v. Sullivan, 962 F.2d 803, 804 (8th Cir. 1992) (holding that an
ALJ’s decision is conclusive upon a reviewing court if it is supported by
“substantial evidence”). Thus, an administrative decision which is supported by
substantial evidence is not subject to reversal merely because substantial evidence
may also support an opposite conclusion or because the reviewing court would
have decided differently.

See Krogmeier, 294 F.3d at 1022.

See also

Eichelberger, 390 F.3d at 589; Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir.
2000) (quoting Terrell v. Apfel, 147 F.3d 659, 661 (8th Cir. 1998)); Hutsell v.
Massanari, 259 F.3d 707, 711 (8th Cir. 2001).
To determine whether the Commissioner’s final decision is supported by
substantial evidence, the court is required to review the administrative record as a
whole and to consider:
(1) Findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating physicians;
(4) The subjective complaints of pain and description of the claimant’s
physical activity and impairment;
(5) The corroboration by third parties of the claimant’s physical impairment;

6

(6) The testimony of vocational experts based upon proper hypothetical
questions which fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dep’t of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir.
1980); Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989).
Additionally, an ALJ’s decision must comply “with the relevant legal
requirements.” Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008).
The Social Security Act defines disability as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
416(i)(1)(A); 42 U.S.C. § 423(d)(1)(A). “While the claimant has the burden of
proving that the disability results from a medically determinable physical or mental
impairment, direct medical evidence of the cause and effect relationship between
the impairment and the degree of claimant’s subjective complaints need not be
produced.” Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). When
evaluating evidence of pain, the ALJ must consider:
(1) the claimant’s daily activities;
(2) the subjective evidence of the duration, frequency, and intensity of the
claimant’s pain;
(3) any precipitating or aggravating factors;

7

(4) the dosage, effectiveness, and side effects of any medication; and
(5) the claimant’s functional restrictions.
Baker v. Sec’y of Health & Human Servs., 955 F.2d. 552, 555 (8th Cir. 1992);
Polaski, 739 F.2d at 1322.
The absence of objective medical evidence is just one factor to be
considered in evaluating the plaintiff’s credibility. See id. The ALJ must also
consider the plaintiff’s prior work record, observations by third parties and treating
and examining doctors, as well as the plaintiff’s appearance and demeanor at the
hearing. See Polaski, 739 F.2d at 1322; Cruse, 867 F.2d at 1186.
The ALJ must make express credibility determinations and set forth the
inconsistencies in the record which cause him or her to reject the plaintiff’s
complaints. See Guilliams, 393 F.3d at 801; Masterson, 363 F.3d at 738; Lewis v.
Barnhart, 353 F.3d 642, 647 (8th Cir. 2003); Hall v. Chater, 62 F.3d 220, 223 (8th
Cir. 1995). It is not enough that the record contains inconsistencies; the ALJ must
specifically demonstrate that he or she considered all of the evidence. Robinson v.
Sullivan, 956 F.2d 836, 841 (8th Cir. 1992); Butler v. Sec’y of Health & Human
Servs., 850 F.2d 425, 429 (8th Cir. 1988). The ALJ, however, “need not explicitly
discuss each Polaski factor.” Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir.
2004). See also Steed, 524 F.3d at 876 (citing Lowe v. Apfel, 226 F.3d 969, 972
(8th Cir. 2000)). The ALJ need only acknowledge and consider those factors. See

8

id. Although credibility determinations are primarily for the ALJ and not the court,
the ALJ’s credibility assessment must be based on substantial evidence.

See

Rautio v. Bowen, 862 F.2d 176, 179 (8th Cir. 1988); Millbrook v. Heckler, 780
F.2d 1371, 1374 (8th Cir. 1985).
RFC is defined as what the claimant can do despite his or her limitations, 20
C.F.R. § 404.1545(a)(1), and includes an assessment of physical abilities and
mental impairments. 20 C.F.R. § 404.1545(b)-(e). The Commissioner must show
that a claimant who cannot perform his or her past relevant work can perform other
work which exists in the national economy. See Karlix v. Barnhart, 457 F.3d 742,
746 (8th Cir. 2006); Nevland, 204 F.3d at 857 (citing McCoy v. Schweiker, 683
F.2d 1138, 1146-47 (8th Cir. 1982) (en banc)). The Commissioner must first prove
that the claimant retains the RFC to perform other kinds of work. See Goff, 421
F.3d at 790; Nevland, 204 F.3d at 857. The Commissioner has to prove this by
substantial evidence. Warner v. Heckler, 722 F.2d 428, 431 (8th Cir. 1983).
Second, once the plaintiff’s capabilities are established, the Commissioner has the
burden of demonstrating that there are jobs available in the national economy that
can realistically be performed by someone with the plaintiff’s qualifications and
capabilities. See Goff, 421 F.3d at 790; Nevland, 204 F.3d at 857.
To satisfy the Commissioner’s burden, the testimony of a vocational expert
(VE) may be used. An ALJ posing a hypothetical to a VE is not required to

9

include all of a plaintiff’s limitations, but only those which the ALJ finds credible.
See Goff, 421 F.3d at 794 (“[T]he ALJ properly included only those limitations
supported by the record as a whole in the hypothetical.”); Rautio, 862 F.2d at 180.
Use of the Medical-Vocational Guidelines is appropriate if the ALJ discredits the
plaintiff’s subjective complaints of pain for legally sufficient reasons. See Baker
v. Barnhart, 457 F.3d 882, 894-95 (8th Cir. 2006); Carlock v. Sullivan, 902 F.2d
1341, 1343 (8th Cir. 1990); Hutsell v. Sullivan, 892 F.2d 747, 750 (8th Cir. 1989).
III.
DISCUSSION
The issue before the court is whether substantial evidence supports the
Commissioner’s final determination that Plaintiff was not disabled. See Onstead,
962 F.2d at 804. Thus, even if there is substantial evidence that would support a
decision opposite to that of the Commissioner, the court must affirm her decision
as long as there is substantial evidence in favor of the Commissioner’s position.
See Cox, 495 F.3d at 617; Krogmeier, 294 F.3d at 1022.
Plaintiff alleged disability based on a combination of mental impairments.
She did not allege that she had any physical impairments. The ALJ found that
Plaintiff met the insured status requirements through December 31, 2014; that
Plaintiff had not engaged in substantial gainful activity since November 30, 2009,
Plaintiff’s alleged onset date; that Plaintiff had the severe impairments of
generalized anxiety disorder with panic attacks and post-traumatic stress disorder
10

(PTSD); that Plaintiff could engage in the full range of work at all exertional
levels; that she was limited to simple, unskilled work with limited social
interaction with co-workers, supervisors, and the public; that Plaintiff was unable
to engage in her past relevant work; that there was work in the national economy,
existing in significant numbers, which a person of Plaintiff’s age and with her
RFC, work experience, and education could perform; and that, therefore, Plaintiff
was not disabled.
Plaintiff contends that the ALJ’s decision is not based on substantial
evidence because, at Step 2 of the sequential analysis, the ALJ failed to properly
consider the severity of her personality disorder, because the ALJ gave improper
weight to the opinion of Gretchen Brandhorst, Psy. D., and because the testimony
from the VE did not provide substantial evidence to support the ALJ’s decision.
Plaintiff also argues that additional evidence which she submitted to the Appeals
Council establishes that the ALJ’s decision is not based on substantial evidence.
For the following reasons, the court finds that the ALJ’s decision is based on
substantial evidence and is consistent with the Regulations and case law.
A.

Plaintiff’s Credibility:
The court will first consider the ALJ=s credibility determination, as the

ALJ=s evaluation of Plaintiff=s credibility was essential to the ALJ=s determination
of other issues, including Plaintiff’s RFC. See Wildman v. Astrue, 596 F.3d 959,

11

969 (8th Cir. 2010) (A[The plaintiff] fails to recognize that the ALJ's determination
regarding her RFC was influenced by his determination that her allegations were
not credible.@) (citing Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005)); 20
C.F.R. §§ 404.1545, 416.945 (2010). As set forth more fully above, the ALJ=s
credibility findings should be affirmed if they are supported by substantial
evidence on the record as a whole; a court cannot substitute its judgment for that of
the ALJ. See Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); Hutsell,
892 F.2d at 750; Benskin, 830 F.2d at 882.
To the extent that the ALJ did not specifically cite Polaski, other case law,
and/or Regulations relevant to a consideration of Plaintiff=s credibility, this is not
necessarily a basis to set aside an ALJ=s decision where the decision is supported
by substantial evidence. Randolph v. Barnhart, 386 F.3d 835, 842 (8th Cir. 2004);
Wheeler v. Apfel, 224 F.3d 891, 895 n.3 (8th Cir. 2000); Reynolds v. Chater, 82
F.3d 254, 258 (8th Cir. 1996); Montgomery v. Chater, 69 F.3d 273, 275 (8th Cir.
1995). Additionally, an ALJ need not methodically discuss each Polaski factor if
the factors are acknowledged and examined prior to making a credibility
determination; where adequately explained and supported, credibility findings are
for the ALJ to make. See Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000). See
also Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir. 2004) (AThe ALJ is not
required to discuss each Polaski factor as long as the analytical framework is
12

recognized and considered.@); Strongson, 361 F.3d at 1072; Brown v. Chater, 87
F.3d 963, 966 (8th Cir. 1996).
In any case, A[t]he credibility of a claimant=s subjective testimony is
primarily for the ALJ to decide, not the courts.@ Pearsall v. Massanari, 274 F.3d
1211, 1218 (8th Cir. 2001).

AIf an ALJ explicitly discredits the claimant=s

testimony and gives good reason for doing so, [a court] will normally defer to the
ALJ=s credibility determination.@ Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir.
2003). See also Halverson v. Astrue, 600 F.3d 922, 932 (8th Cir. 2010); Cox v.
Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). For the following reasons, the court
finds that the ALJ’s determination that Plaintiff was not entirely credible is based
on substantial evidence. (Tr. 15).
First, the ALJ considered the objective medical evidence and concluded that
it did not support Plaintiff’s allegations of disabling limitations.

See Social

Security Ruling (SSR) 06-7p(4), 1996 WL 374186, at *1 (July 2, 1996) (“In
determining the credibility of the individual's statements, the adjudicator must
consider the entire case record, including the objective medical evidence,”
although disability determination “cannot be made solely on the basis of objective
medical evidence.”). Indeed, a claimant’s “symptoms, including pain, will be
determined to diminish [her] capacity for basic work activities to the extent that
[her] alleged functional limitations and restrictions due to symptoms can

13

reasonably be accepted as consistent with the objective medical evidence and other
evidence in the case record.” Id. at *2.
As considered by the ALJ, Gautam Rohatgi, D.O., first saw Plaintiff on
April 18, 2011. On that date, Dr. Rohatgi reported that Plaintiff’s mood and affect
were depressed; that her grooming and hygiene were appropriate; that she was
cooperative; that her thought process was linear; that Plaintiff had no delusions,
phobias, homicidal or suicidal ideations; and that her insight and judgment were
“fair to poor.” Subsequently, on June 20, 2011, and February 20 and September 6,
2012, Dr. Rohatgi reported that Plaintiff’s thought process remained linear; that her
thought content was devoid of psychosis, phobias, obsessions, suicidal ideation, or
detachment from reality; and that she was cooperative. (Tr. 301, 322-23, 332).
Also, on September 6, 2012, Plaintiff denied PTSD. (Tr. 322). On May 30, 2013,
Dr. Rohatgi reported that Plaintiff’s affect was appropriate; that her perceptions
were without hallucinations and illusions; and that her insight and judgment were
fair to poor. (Tr. 632). On August 22, 2013, Dr. Rohatgi reported that Plaintiff
was cooperative, made good eye contact, had fluent and clear speech, sat
comfortably, was not in distress, and had a linear thought process. Also, Plaintiff
had no delusions, phobias, suicidal or homicidal ideations, or obsessions. (Tr.
655). Plaintiff was frequently described by Dr. Rohatgi as having appropriate
grooming. (Tr. 301, 322, 322, 324, 326, 328, 330, 332, 334, 632).

14

Further, findings of health care providers, other than Dr. Rohatgi, did not
support Plaintiff’s allegations regarding the severity of her mental impairments.
For example, when Plaintiff presented with abdominal pain, on April 12, 2011, it
was noted that she was alert and oriented to person, place and time; that she had a
normal affect; that she was calm, cooperative, and interacted appropriately; and
that she verbalized no suicidal or homicidal ideation. (Tr. 225, 244). When she
presented for possible carbon monoxide exposure, in June 2011, it was noted that
Plaintiff was oriented to person, place and time. Significantly, Plaintiff’s “[m]ood,
memory, affect, and judgment [were] normal.” (Tr. 561). Further, in January,
May, November, and December 2011, and March and June 2012, Craig Pope,
M.D., Plaintiff’s primary care physician, and his nurse practitioner, Joy Boyer,
N.P., reported that Plaintiff had “[n]o depressive symptoms,” and no “changes in
[her] sleep habits” or “thought content.” (Tr. 202, 203, 480, 484, 486, 490).
Additionally, Kimberly R. Buffkins, Psy. D., who saw Plaintiff for a
consultative psychological evaluation, on March 2, 2013, reported that, upon
examination, Plaintiff was alert; that her hygiene and grooming were within
normal limits; that she was cooperative and calm, and made good eye contact; that
she had difficulty concentrating during parts of the mental status examination; that
she had a logical thought process with no tangentiality; that she had no suicidal
ideations or delusions; that Plaintiff was oriented in all spheres; that she could

15

complete simple calculations; and that she appeared capable of getting along with
people “in general.” (Tr. 500-502). As considered by the ALJ, on March 3, 2013,
Dr. Buffkins completed a Medical Source Statement of Ability To Do WorkRelated Activities (Mental), finding that Plaintiff had only mild limitations in her
ability to perform mental work-related activities. (Tr. 19, 499-504).
Second, Dr. Rohatgi reported, in April 2011, that Plaintiff said that she was
addicted to drinking alcohol; that, on the weekend, “she [could] drink one bottle of
wine or tequila”; that she had a history of blackouts; and that she smoked
marijuana on the weekends. (Tr. 276). In June 2011, Dr. Rohatgi diagnosed
Plaintiff with alcohol abuse and “rule out marijuana abuse,” discussed abstinence
from these substances with her and their effect on mood, and told her that, if the
substance abuse continued, medication could not be prescribed. (Tr. 301). On
August 1, 2011, Plaintiff told Dr. Rohatgi that she was drinking “slightly” on the
weekends, and Dr. Rohatgi discussed abstinence from substances with her. (Tr.
341). On September 1, 2011, Plaintiff told Dr. Rohatgi that she continued to drink
on the weekends, at which time she might have a half bottle to a bottle of wine.
Dr. Rohatgi again discussed abstinence from substances with Plaintiff. (Tr. 33940).

On November 22, 2011, Dr. Rohatgi diagnosed Plaintiff with probable

alcohol abuse and discussed abstinence with her. (Tr. 335-36). See Wildman v.
Astrue, 596 F.3d 959, 964-65 (8th Cir. 2010) (noncompliance is a basis for

16

discrediting

a

claimant;

when

claimant

was

compliant

with

dietary

recommendations his pain was under good control). Notably, on January 10, 2013,
when Dr. Rohatgi reported that Plaintiff did not have a “foreshortened future,
nightmares, [or] flashbacks,” that she was “doing okay,” and that she had no
“elicitation of depression, loss of interest,” this doctor also reported that “no
alcohol or illicit drug use [was] elicited.”1 (Tr. 509).
Third, in April 2011, when Plaintiff first saw Dr. Rohatgi, this doctor
reported that Plaintiff had a Global Assessment of Functioning (GAF)2 of 55 which

In 1996, Congress eliminated alcoholism or drug addiction as a basis for
obtaining social security benefits. See Kluesner v. Astrue, 607 F.3d 533, 537 (8th
Cir. 2010). “An individual shall not be considered disabled for purposes of this
title if alcoholism or drug addiction would (but for this subparagraph) be a
contributing factor material to the Commissioner's determination that the
individual is disabled.” 42 U.S.C. § 1382c(a)(3)(J). The Regulations set out a
two-step process in cases involving evidence of substance abuse. First, the ALJ
must determine if the claimant symptoms, regardless of cause, constitute a
disability. Kluesner, 607 F.3d at 537; 20 C.F.R. § 416.935(a). If the ALJ finds a
disability and evidence of substance abuse, the next step is to determine whether
the disability would exist in the absence of the substance abuse. Kluesner, 607
F.3d at 537.
1

Global assessment of functioning (GAF) is the clinician=s judgment of the
individual=s overall level of functioning, not including impairments due to physical
or environmental limitations. See Diagnostic and Statistical Manual of Mental
Disorders, DSM-IV, 30-32 (4th ed. 1994). Expressed in terms of degree of
severity of symptoms or functional impairment, GAF scores of 31 to 40 represent
Asome impairment in reality testing or communication or major impairment in
several areas, such as work or school, family relations, judgment, thinking, or
mood,@ 41 to 50 represents Aserious,@ scores of 51 to 60 represent Amoderate,@
scores of 61 to 70 represent Amild,@ and scores of 90 or higher represent absent or
minimal symptoms of impairment. Id. at 32. See also Brown v. Astrue, 611 F.3d
2

17

reflects moderate difficulties. (Tr. 17, 276). Subsequently, on July 13 and August
9, 2012, Dr. Rohatgi reported that Plaintiff’s GAF was 60, which is at the top of
the moderate range. (Tr. 324, 326). Dr. Rohatgi reported that Plaintiff’s GAF was
55 on December 7, 2012; that it was 60 on January 10, 2013; and that it was 60 on
March 7, 2013. (Tr. 507, 509, 511). Also, in March 2013, Dr. Buffkins reported
that Plaintiff’s GAF was 60 to 65, and, on May 30, 2013, that it was 60. (Tr. 502,
632). See n.2 below (scores of 51 to 60 represent Amoderate@ symptoms and scores
of 61 to 70 represent Amild@ symptoms).
Fourth, the ALJ considered that Plaintiff’s symptoms improved with
treatment.

(Tr. 17).

Conditions which can be controlled by treatment or

medication are not disabling. See Renstrom v. Astrue, 680 F.3d 1057, 1066 (8th
Cir. 2012); Davidson v. Astrue, 578 F.3d 838, 846 (8th Cir. 2009); Medhaug v.
Astrue, 578 F.3d 805, 813 (8th Cir. 2009); Schultz v. Astrue, 479 F.3d 979, 983

941, 955 (8th Cir. 2010) (A[A] GAF score of 65 [or 70] . . . reflects >some mild
symptoms (e.g. depressed mood or mild insomnia) OR some difficulty in social,
occupational, or school functioning . . . but generally functioning pretty well, has
some meaningful interpersonal relationships.=@) (quoting Kohler v. Astrue, 546
F.3d 260, 263 (2d Cir. 2008) (quoting Am. Psychiatric Ass'n, Diagnostic and
Statistical Manual of Mental Disorders 34 (4th ed. 2000) (alterations in original).
See also Goff, 421 F.3d at 791, 793 (affirming where court held GAF of 58 was
inconsistent with doctor’s opinion that claimant suffered from extreme limitations;
GAF scores of 58-60 supported ALJ’s limitation to simple, routine, repetitive
work).
18

(8th Cir. 2007) (holding that if an impairment can be controlled by treatment, it
cannot be considered disabling).
In this regard, on August 1, 2011, Plaintiff told Dr. Rohatgi that Paxil was
“of benefit for her mood as she [felt] more calm and relaxed.” (Tr. 341). On June
20, 2011, Plaintiff told Dr. Rohatgi that Trazodone helped her sleep, but that she
did not want that medication. (Tr. 301). Plaintiff told Dr. Rohatgi, on September
1, 2011, that Paxil helped her; that Trazodone helped her sleep; and that she had
not been taking the Trazodone “recently.” Plaintiff also told Dr. Rohatgi that her
mood was better with medication. (Tr. 339). On September 29, 2011, Dr. Rohatgi
suggested extending the time between Plaintiff’s clinic visits because Plaintiff’s
mood had improved. (Tr. 337). On February 20, 2012, Plaintiff told Dr. Rohatgi
that life was “better, much more fun with Xanax,” but “then retracted the
statement.” (Tr. 332). Dr. Rohatgi reported, on April 20, 2012, that Plaintiff did
not want to make any changes to her medications and that she was sleeping well.
(Tr. 328). On July 13, 2012, when Plaintiff told Dr. Rohatgi that she had increased
problems with anxiety, Dr. Rohatgi adjusted her medications, and, at her next
appointment, on August 9, 2012, Plaintiff reported that she was benefiting from her
medication, without side effects. (Tr. 324, 326). On September 6, 2012, Plaintiff
denied side effects from medication. (Tr. 322). On November 1, 2012, Plaintiff
told Dr. Rohatgi that Vistaril was “of benefit for anxiety.” (Tr. 320).

19

On March 7, 2013, Plaintiff told Dr. Rohatgi that Paxil helped with her
depression, although it had some side effects, and that she continued to use
Trazodone for sleep. (Tr. 507). On May 30, 2013, Plaintiff told Dr. Rohatgi that
Trazodone was “of benefit for sleep,” and she requested Ativan and Valium. (Tr.
632). On August 22, 2013, Plaintiff told Dr. Rohatgi that Effexor did not cause
side effects; that she was tolerating it; that it was more efficacious than Paxil; and
that she did not want to increase the medication. (Tr. 655). On September 13,
2013, Plaintiff’s therapist noted that Plaintiff said that she had “reduced anxiety
since cutting out caffeine.” (Tr. 662).
Sixth, the ALJ considered that evidence suggested Plaintiff’s motive for
seeking treatment with Dr. Rohatgi was to obtain disability benefits. (Tr. 18).
Notably, on September 29, 2011, when Dr. Rohatgi suggested more time between
Plaintiff’s visits, she asked “what would come of disability at which point
[Plaintiff] was comforted by [a] statement that her disability [had] no bearing on
whether she [saw] [Dr. Rohatgi] more or less, to which [Plaintiff] agreed and was
quite pleased that the clinic visits were extended two months.” (Tr. 337). Also, on
January 10, 2013, Dr. Rohatgi reported that Plaintiff “presented asking if this
[doctor] [was] tired of her coming in and stated that if” Dr. Rohatgi was tired of
seeing her, the doctor “should just fill out the disability papers.” (Tr. 509). On
March 7, 2013, Plaintiff told Dr. Rohatgi that “she did not get her disability

20

because [Dr. Rohatgi’s nurse] and [Dr. Rohatgi] did not write anything.” (Tr.
507). The ALJ further considered that Dr. Rohatgi declined to complete a medical
source statement provided by Plaintiff’s attorney. (Tr. 18, 495).
To the extent Plaintiff argues that it was improper for the ALJ to consider
her motive for seeking treating (Doc. 15 at 7), the Eighth Circuit holds that, when
considering a claimant’s credibility, an ALJ may properly consider that the
claimant appeared to be motivated to qualify for disability benefits.

See

Eichelberger, 390 F.3d at 590 (8th Cir. 2004) (“[T]he ALJ found that Eichelberger
had objectively determinable impairments, but also noted that her incentive to
work might be inhibited by her long-term disability check of $1,700 per month.”)
(citing Gaddis v. Chater, 76 F.3d 893, 896 (8th Cir. 1996) (allowing an ALJ to
judge credibility based on a strong element of secondary gain). In any case,
Plaintiff’s motivation for seeking disability was only one of many factors
considered by the ALJ when determining Plaintiff’s RFC.
Seventh, the ALJ considered what Plaintiff told health care providers.
Contradictions between a claimant=s sworn testimony and what she actually told
physicians weighs against the claimant=s credibility. Karlix v. Barnhart, 457 F.3d
742, 748 (8th Cir. 2006). Indeed, at times Plaintiff reported to her doctor that she
was depressed or stressed (Tr. 301, 322, 507), but she also reported, at other times,
that she was “doing well”; that her mood or anxiety were “better”; that she was

21

“okay” and “fine”; and that she did “not easily become stressed or irritable.” (Tr.
320, 337, 341, 509). On February 20, 2012, Plaintiff did “not specifically state
symptoms of anxiety,” and was “quite vague.” (Tr. 332). On September 6, 2012,
Plaintiff told Dr. Rohatgi that she did not have “obsessions, compulsions, PTSD,
[or] phobias,” although she worried about her sister’s health. (Tr. 322). Also, on
November 1, 2012, Plaintiff told Dr. Rohatgi that she was eating and sleeping
without difficulty and was as physically and socially active as she could be. (Tr.
320).
Eighth, as noted by Dr. Buffkins, on March 2, 2013, Plaintiff had no history
of inpatient psychiatric hospitalizations. (Tr. 500). A lack of regular treatment for
an alleged disabling condition detracts from a claimant=s credibility. See Dukes v.
Barnhart, 436 F.3d 923, 928 (8th Cir. 2006) (upholding an ALJ’s determination
that a claimant lacked credibility due in part to “absence of hospitalizations . . .,
limited treatment of symptoms, [and] failure to diligently seek medical care”); 20
C.F.R. § 404.1529(c)(3)(v) (the agency will consider the claimant’s treatment
when evaluating her symptoms).
Ninth, on September 29, 2011, Dr. Rohatgi noted that Plaintiff missed her
therapy appointments “at times.” (Tr. 337). Also, on September 6, 2012, Plaintiff
told Dr. Rohatgi that she was taking Vistaril on an as needed basis. (Tr. 322). On
November 1, 2012, Dr. Rohatgi reported that, although Plaintiff said that Vistaril

22

helped her anxiety, she was not taking it on a regular basis. (Tr. 320). A note from
Plaintiff’s therapist, dated June 6, 2013, reflects that Plaintiff had missed a group
session the day before. (Tr. 636). On June 26, 2013, the therapist reported that
Plaintiff had not come to any groups, and discussed with Plaintiff her attending a
group the following week. (Tr. 641). A note from Plaintiff’s therapist, dated July
30, 2013, states that she called Plaintiff to “assess her level of commitment to
Seeking Safety each week,” and Plaintiff said “she did not think she could be there
each week as she already came every two weeks.” (Tr. 652). On August 22, 2013,
Plaintiff’s therapist called Plaintiff because she had not rescheduled her
appointment from the day before. (Tr. 657). Indeed, “[a] failure to follow a
recommended course of treatment [] weighs against a claimant’s credibility.”
Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir. 2005).
Tenth, the ALJ considered inconsistencies in the record. (Tr. 17). For
example, Plaintiff testified, at the hearing, that she was terminated from her last job
because she was having too many panic attacks and problems with depression and
anxiety (Tr. 28, 32), but medical records of April 8, 2011, reflect that Plaintiff
indicated that she had been out of work for a year and a half because she was
injured while working at a nursing home (Tr. 18, 290). Also, as considered by the
ALJ, Plaintiff testified that, in 2009, she had deteriorated so much that she tried to
kill herself, after which she went to the emergency room at St. Clare Hospital. (Tr.

23

18, 37). The only evidence submitted from St. Clare Hospital was from October
2009. This evidence reflects that Plaintiff presented with a panic attack after she
started a new medication, and does not mention a suicidal gesture or ideation. (Tr.
18, 211). See Karlix, 457 F.3d at 748.
Eleventh, the ALJ considered that treatment notes frequently reflect that
Plaintiff was “guarded” or “vague,” which the ALJ found was evidence indicating
less than full cooperation on Plaintiff’s part. (Tr. 18, 320, 322, 324, 332, 337, 335,
339, 507, 632). Plaintiff argues that these traits are attributable to her personality
disorder and should not have been considered as a credibility factor. (Doc. 15 at 46). Notably, Dr. Rohatgi never indicated that these traits were indications of a
personality disorder, and, just as an ALJ should not play the role of a doctor by
diagnosing conditions, neither should Plaintiff. See Pates-Fires v. Astrue, 564 F.3d
935 (8th Cir. 2009) (finding ALJ should not rely on his own speculative lay
opinion).

Moreover, even assuming, arguendo, that the ALJ improperly

considered Dr. Rohatgi’s comments, this was only one of many factors considered
by the ALJ and was not outcome determinative. See Van Vickle v. Astrue, 539
F.3d 825, 830 (8th Cir. 2008) (“There is no indication that the ALJ would have
decided differently had he read the hand-written notation to say ‘walk’ rather than
‘work’ and any error by the ALJ was therefore harmless.”).

24

Twelfth, on March 7, 2013, Dr. Rohatgi reported that, although Plaintiff said
she sometimes did not have enough motivation to complete tasks, she stated that
she was able to meet the responsibilities of caring for her children. (Tr. 507). On
May 30, 2013, Dr. Rohatgi reported that Plaintiff distracted herself by gardening,
and that she was growing habaneras and roses, among other things. Plaintiff also
stated, on this date, that she was “able to perform activities of daily living as well
as instrumental activities of daily living.” (Tr. 632). See McDade v. Astrue, 720
F.3d 994, 998 (8th Cir. 2013) (ALJ properly discounted plaintiff’s credibility
where, among other factors, plaintiff “was not unduly restricted in his daily
activities, which included the ability to perform some cooking, tak[ing] care of his
dogs, us[ing] a computer, driv[ing] with a neck brace, and shop[ping] for groceries
with the use of an electric cart”). See also Ponders v. Colvin, 770 F.3d 1190 (8th
Cir. 2014) (holding that substantial evidence supported the ALJ’s denial of
disability benefits in part because claimant “performs light housework, washes
dishes, cooks for her family, does laundry, can handle money and pays bills, shops
for groceries and clothing, watches television, drives a vehicle, leaves her house
alone, regularly attends church, and visits her family”).
Thirteenth, the ALJ considered that none of Plaintiff’s treating sources
identified any specific functional limitations. (Tr. 18). The Eighth Circuit holds
that this is a significant consideration. See Young v. Apfel, 221 F.3d 1065, 1069

25

(8th Cir. 2000) (citing Brown v. Chater, 87 F.3d 963, 964-65 (8th Cir. 1996) (lack
of significant restrictions imposed by treating physicians supported the ALJ’s
decision of no disability).
B.

Severity of Plaintiff’s Mental Impairment:
The ALJ did find Plaintiff had the severe impairments of generalized anxiety

disorder with panic attacks and PTSD, but did not find that Plaintiff’s severe
impairments included personality disorder. Plaintiff contends that the ALJ did not
properly consider the severity of Plaintiff’s mental impairment at Step 2 of the
sequential evaluation process for determining whether a claimant is disabled within
the meaning of the Act.

In particular, Plaintiff argues that if the ALJ had

considered personality disorder as a severe impairment at Step 2, he would have
found she had additional functional limitations due to her “pervasive and inflexible
thought patterns and behavior,” such as use of judgment. (Doc. 15 at 3-9).
As stated above, 20 C.F.R. § 404.1520, sets forth the five-step sequential
evaluation process for determining whether a claimant is disabled within the Act’s
meaning. At Step 2, a claimant bears the burden of proof to demonstrate that she
has a severe impairment. See Kirby v. Astrue, 500 F.3d 705, 707-08 (8th Cir.
2007) (citing Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000) (reversing
district court and affirming Commissioner)).

A severe impairment is an

impairment or combination of impairments that significantly limits a claimant’s

26

physical or mental ability to perform basic work activities without regard to age,
education, or work experience.

See 20 C.F.R. §§ 404.1520(c), 404.1521(a)

(emphasis added). “Basic work activities” encompass the abilities and aptitudes
necessary to perform most jobs. 20 C.F.R. § 404.1521(b). Included are mental
functions such as capacities for understanding, performing, and remembering
simple instructions; using judgment; responding appropriately to supervision, coworkers, and usual work situations; and dealing with changes in a routine work
situation. Id.
Also, at the second step, if the ALJ finds that a claimant does not have a
severe medically determinable physical or mental impairment that meets the
duration requirement of § 404.1509, or a combination of impairments that is not
severe and meets the duration requirement, the ALJ must find the claimant not
disabled. See 20 C.F.R. § 404.1520(a)(4)(ii). To establish an impairment, there
must be “medical evidence consisting of signs, symptoms, and laboratory findings,
not only by [the claimant’s] statement of symptoms.” 20 C.F.R. § 404.1508. A
qualifying

impairment

“must

result

from

anatomical,

physiological,

or

psychological abnormalities which can be shown by medically acceptable clinical
and laboratory diagnostic techniques.” Id. Thus, an alleged qualifying impairment
must be medically determinable. See id. The required medical evidence must be
from an acceptable medical source, such as a licensed physician. 20 C.F.R. §

27

404.1513(a)(1)-(2) (“We need evidence from acceptable medical sources to
establish whether you have a medically determinable impairment(s).”; acceptable
medical sources include licensed physicians).
Cluster B personality disorders include Antisocial, Borderline, Narcissistic,
and Histrionic Personality Disorders. See American Psychiatric Ass’n, Diagnostic
and Statistical Manual of Mental Disorders 646, 659-72 (5th ed. 2013) (DSM-5).
Notably, the ALJ considered, in detail, the records of Dr. Rohatgi, who was
Plaintiff’s treating psychiatrist. (Tr. 13-19). These records do not reflect that Dr.
Rohatgi ever diagnosed Plaintiff with any particular personality disorder, although
he diagnosed her with “Personality Disorder Nos.,” on May 9, 2013. (Tr. 619).
Further, Plaintiff states that Dr. Rohatgi diagnosed Plaintiff with personality
disorder on December 7, 2012. (Doc. 15 at 8). Records of this date reflect,
however, that Dr. Rohatgi’s diagnosis, at Axis I, on this date was PTSD, history of
alcohol abuse, and history of major depressive disorder, the same diagnosis also
reflected in Dr. Rohatgi’s notes of December 2012 and January, March, April
2013. (Tr. 507, 509, 511, 610, 632, 642, 650, 655).
Moreover, to the extent Plaintiff may have exhibited some traits of
personality disorder, is not the same as being diagnosed with a personality
disorder.3 The ALJ considered Plaintiff medical records and noted that Plaintiff

3

20 C.F.R. § Pt. 404, Subpt. P, App. 1 provides:
28

12.08 Personality Disorders: A personality disorder exists when
personality traits are inflexible and maladaptive and cause either
significant impairment in social or occupational functioning or
subjective distress.
Characteristic features are typical of the
individual's long-term functioning and are not limited to discrete
episodes of illness.
The required level of severity for these disorders is met when the
requirements in both A and B are satisfied.
A. Deeply ingrained, maladaptive patterns of behavior associated with
one of the following:
1. Seclusiveness or autistic thinking; or
2. Pathologically inappropriate suspiciousness or hostility; or
3. Oddities of thought, perception, speech and behavior; or
4. Persistent disturbances of mood or affect; or
5. Pathological dependence, passivity, or aggressivity; or
6. Intense and unstable interpersonal relationships and impulsive and
damaging behavior;
AND
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or
pace; or
4. Repeated episodes of decompensation, each of extended duration.
29

did suffer an abusive childhood and complained of symptoms of depression and
anxiety for many years. (Tr. 16, 275, 296). To the extent the ALJ did not consider
that Plaintiff was diagnosed with personality disorder by Dr. Rohatgi, the ALJ
nonetheless considered Dr. Rohatgi’s clinical findings, as discussed above.
Indeed, the mere existence of a mental condition is not per se disabling. See
Dunlap v. Harris, 649 F.2d 637, 638 (8th Cir. 1981).
Further, the ALJ considered that Plaintiff’s mental impairments limited her
to performing simple, unskilled work that involved limited social interaction with
others. (Tr. 15). As discussed above, prior to reaching these conclusions, the ALJ
considered Plaintiff’s credibility and found that Plaintiff’s subjective complaints
were not fully credible. The court has found the ALJ’s credibility determination is
based on substantial evidence.

Because the ALJ gave good reasons for his

credibility determination, this court will defer to the ALJ’s findings in this regard.
Juszczyk v. Astrue, 542 F.3d 626, 632 (8th Cir. 2008) (“If an ALJ explicitly
discredits the claimant’s testimony and gives good reason for doing so, we will
normally defer to the ALJ’s credibility determination.”) (quoting Gregg v.
Barnhart, 354 F.3d 710, 714 (8th Cir. 2003)). See also Travis v. Astrue, 477 F.3d
1037, 1042 (8th Cir. 2007) (“This court will not substitute its opinion for theALJ’s,
who is in a better position to gauge credibility and resolve conflicts in evidence.”);
Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004) (“We will not

30

substitute our opinion for that of the ALJ, who is in a better position to assess
credibility.”). Moreover, the issue is not whether the claimant actually experiences
the subjective complaints alleged, but whether those symptoms are credible to the
extent that they prevent her from performing substantial gainful activity. See
Baker v. Apfel, 159 F.3d 1140, 1145 (8th Cir. 1998).
The court has found that the ALJ’s consideration of the medical evidence
provides substantial evidence to support his credibility determination. The court
further finds that the medical evidence provides substantial evidence to support the
ALJ’s conclusion regarding the limitations resulting from Plaintiff’s mental
impairments and to support the ALJ’s failure to find that Plaintiff suffered from
personality disorder which was severe. See Baker, 159 F.3d at 1145. Finally, the
court holds that the ALJ’s decision, at Step 2, finding that the only severe
impairments from which Plaintiff suffered were generalized anxiety disorder with
panic attacks and PTSD is supported by substantial evidence and is consistent with
the Regulations and case law, and that Plaintiff’s arguments to the contrary are
without merit.
C.

Plaintiff’s RFC:
The Regulations define RFC as Awhat [the claimant] can do@ despite his or

her Aphysical or mental limitations.@ 20 C.F.R. § 404.1545(a). AWhen determining
whether a claimant can engage in substantial employment, an ALJ must consider

31

the combination of the claimant=s mental and physical impairments.@ Lauer v.
Apfel, 245 F.3d 700, 703 (8th Cir. 2001). AThe ALJ must assess a claimant=s RFC
based on all relevant, credible evidence in the record, >including the medical
records, observations of treating physicians and others, and an individual=s own
description of his limitations.=@ Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir.
2004) (quoting McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). See also
Myers v. Colvin, 721 F.3d 521, 526 (8th Cir. 2013).
To determine a claimant=s RFC, the ALJ must move, analytically, from
ascertaining the true extent of the claimant=s impairments to determining the kind
of work the claimant can still do despite his or her impairments. Anderson v.
Shalala, 51 F.3d. 777, 779 (8th Cir. 1995). Although assessing a claimant=s RFC is
primarily the responsibility of the ALJ, a A>claimant's residual functional capacity
is a medical question.=@ Lauer, 245 F.3d at 704 (quoting Singh v. Apfel, 222 F.3d
448, 451 (8th Cir. 2000)). The Eighth Circuit clarified, in Lauer, 245 F.3d at 704,
that A>[s]ome medical evidence,= Dykes v. Apfel, 223 F.3d 865, 867 (8th Cir. 2000)
(per curiam), must support the determination of the claimant's RFC, and the ALJ
should obtain medical evidence that addresses the claimant=s >ability to function in
the workplace,= Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000).@ Thus, an
ALJ is Arequired to consider at least some supporting evidence from a
professional.@ Id. See also Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010)
32

(AThe ALJ bears the primary responsibility for determining a claimant's RFC and
because RFC is a medical question, some medical evidence must support the
determination of the claimant's RFC.@); Eichelberger, 390 F.3d at 591.
As stated above, the ALJ found that Plaintiff had the RFC to engage in the
full range of work at all exertional levels and that she was limited to simple,
unskilled work with limited social interaction with co-workers, supervisors, and
the public. The ALJ gave some “limited weight” to Dr. Brandhorst’s opinion and
significant weight to Buffkins’ opinion. Plaintiff argues that, in formulating her
RFC, the ALJ gave too much weight to the opinions of Dr. Brandhorst and Dr.
Buffkins. (Doc. 15 at 11-15).
First, as discussed above, when determining Plaintiff’s RFC, the ALJ
included only limitations which he found credible. See Tindell v. Barnhart, 444
F.3d 1002, 1007 (8th Cir. 2006) (AThe ALJ included all of Tindell=s credible
limitations in his RFC assessment, and the ALJ=s conclusions are supported by
substantial evidence in the record.@). The court has found above that the ALJ’s
credibility determination is based on substantial evidence.
Second, upon determining Plaintiff’s RFC the ALJ fulfilled his role to
review the entire record and resolve conflicts among the various treating and
examining physicians. Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir. 2002).

33

Third, when determining the weight to be given the various opinions of
record, the ALJ considered Plaintiff’s treatment records. Indeed, the reports of
Plaintiff’s treating doctors, in particular Dr. Rohatgi, as set forth above, are
consistent with the ALJ’s RFC determination. Notably, as also discussed above,
Dr. Rohatgi never imposed functional limitations upon Plaintiff, even to the extent
the ALJ imposed functional limitations in his RFC assessment.
Fourth, there is no clinical data in the record to support greater limitations
that the ALJ included in Plaintiff’s RFC.
Fifth, after reviewing the evidence of record, Dr. Brandhorst opined that
Plaintiff had “moderate” limitations in activities of daily living, social functioning,
and concentration, persistence, or pace. (Tr. 313). She also completed a Mental
RFC Assessment, in which she opined that Plaintiff would have no more than
moderate limitations in performing mental activities required for work activity, and
found Plaintiff was not significantly limited in many areas, including
understanding and remembering short and simple instructions, remembering
locations and work-like procedures, carrying out very short and simple
instructions, and performing activities within a schedule.

(Tr. 316-17).

Dr.

Brandhorst concluded that Plaintiff was capable of performing simple, routine
tasks that did not involve considerable stress.

(Tr. 315).

Upon giving Dr.

Brandhorst’s opinion “some limited weight,” the ALJ noted that Dr. Brandhorst’s

34

opinion was consistent with the treatment notes of record, specifically notes
indicating that Plaintiff had “some problems with social functioning and anxiety
but that she got “along with her eight children,” and that she “interacte[d]
appropriately with medical staff.” (Tr. 18).
As a State agency medical consultant, Dr. Brandhorst is a highly qualified
expert in Social Security disability evaluation; therefore, the ALJ was required to
consider her findings as opinion evidence. See 20 C.F.R. §§ 404.1527(f)(2)(i),
416.927(f)(2)(i). Thus, to the extent Plaintiff argues that the ALJ should not have
considered Dr. Brandhorst’s opinion or that he gave it too much weight (Doc. 15 at
11), the court finds that Plaintiff’s argument is without merit, and that the weight
given to Dr. Brandhorst’s opinion by the ALJ is based on substantial evidence and
is consistent with the Regulations and case law. Further, to the extent that Dr.
Brandhorst may not have considered the record in its entirety, the ALJ only gave
her opinion only “some limited weight.” (Tr. 18).
Sixth, to the extent the ALJ gave significant weight to Dr. Buffkins’ opinion,
she was an examining source and completed an extensive mental status
examination of Plaintiff, the details of which are set forth above in regard to
Plaintiff’s credibility. Cf. Tilley v. Astrue, 580 F.3d 675, 679 (8th Cir. 2009) (AA
treating physician's opinion is given controlling weight if it >is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not

35

inconsistent with the other substantial evidence in [a claimant's] case record.=@)
(quoting 20 C.F.R. ' 404.1527(d)(2) (2000)). As such, the court finds that the ALJ
gave proper weight to Dr. Buffkins’ opinion, and that the ALJ’s decision, in this
regard, is based on substantial evidence and consistent with the Regulations and
case law.
D.

Hypothetical Posed to the VE:
The ALJ posed a hypothetical to a VE which described a person of

Plaintiff’s age and with her work history, education, and who had no exertional
limitations but would be limited to unskilled work without a lot of social
interaction and, because she was small, “could stay within light or sedentary jobs.”
The ALJ added that Plaintiff would be limited to “unskilled work where there was
low stress and not a lot of social interaction.” (Tr. 57). The VE responded that
there were jobs, such as assembler, which Plaintiff could perform, and that these
jobs existed in significant numbers.

(Tr. 57).

For several reasons, Plaintiff

contends that the ALJ posed an improper hypothetical to the VE and that that the
ALJ improperly relied on the VE’s testimony. For the following reasons, the court
finds that Plaintiff’s arguments, in this regard, are without merit, and that the ALJ
properly relied on the VE’s testimony. (Doc. 15 at 9-11).
Specifically, Plaintiff contends that because the RFC which the ALJ
ultimately assigned to Plaintiff differed from the person described by the ALJ to

36

the VE in his hypothetical, that the ALJ’s decision is not based on substantial
evidence. Plaintiff further argues that her RFC confined her to work with “limited
social interaction with co-workers, supervisors and the public,” which differed
from a person who needed to engage in work “without a lot of social interaction.”
(Doc. 15 at 9). The court finds, however, that such a distinction is insignificant;
the only difference in the language used in the hypothetical to the VE and in the
ALJ’s ultimate RFC determination is a matter of phrasing rather than substance.
Thus, the court finds that the hypothetical which the ALJ posed to the VE mirrored
the ALJ’s RFC determination, which is based on substantial evidence. Martise v.
Astrue, 641 F.3d 909, 927 (8th Cir. 2011) (ABased on our previous conclusion . . .
that >the ALJ's findings of [the claimant=s] RFC are supported by substantial
evidence,= we hold that >[t]he hypothetical question was therefore proper, and the
VE's answer constituted substantial evidence supporting the Commissioner=s denial
of benefits.=@) (quoting Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir. 2006)).
Plaintiff also argues that the ALJ did not pose a proper hypothetical to the
VE because the ALJ did not include “moderate” limitations in activities of daily
living, social functioning, and concentration, persistence, or pace in the
hypothetical, despite finding Plaintiff has such limitations at Step 3 of the
sequential evaluation process. (Doc. 15 at 10). The Regulations explain, however,

37

that such a finding at Step 3 is not meant to be an RFC assessment. SSR 96-8p,
1996 WL 374184, at *4 (July 2, 1996).4
To the extent that Plaintiff argues that the ALJ should have included
limitations in Plaintiff’s RFC beyond those which he found credible, in
formulating a hypothetical to a VE, an ALJ is required to include only a claimant’s
credible limitations. Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011) (AThe
ALJ's hypothetical question to the vocational expert needs to include only those
impairments that the ALJ finds are substantially supported by the record as a
whole.@) (quoting Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir. 2006));
Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir. 2010) (“[T]he ALJ was not
obligated to include limitations from opinions he properly disregarded.”);
4

SSR 96-8p, 1996 WL 374184 at *4, states:
The psychiatric review technique described in 20 CFR 404.1520a and
416.920a and summarized on the Psychiatric Review Technique Form
(PRTF) requires adjudicators to assess an individual's limitations and
restrictions from a mental impairment(s) in categories identified in the
“paragraph B” and “paragraph C” criteria of the adult mental
disorders listings. The adjudicator must remember that the limitations
identified in the “paragraph B” and “paragraph C” criteria are not
an RFC assessment but are used to rate the severity of mental
impairment(s) at steps 2 and 3 of the sequential evaluation process.
The mental RFC assessment used at steps 4 and 5 of the sequential
evaluation process requires a more detailed assessment by itemizing
various functions contained in the broad categories found in
paragraphs B and C of the adult mental disorders listings in 12.00 of
the Listing of Impairments, and summarized on the PRTF.

(emphasis added).
38

Guilliams v. Barnhart, 393 F.3d 789, 804 (8th Cir. 2005) (holding that a proper
hypothetical sets forth impairments supported by substantial evidence and accepted
as true by the ALJ); Gilbert v. Apfel, 175 F.3d 602, 604 (8th Cir. 1999) (AIn posing
hypothetical questions to a vocational expert, an ALJ must include all impairments
he finds supported by the administrative record.@).
Further, the hypothetical which the ALJ posed to the VE captured the
concrete consequences of Plaintiff’s limitations and included all of Plaintiff’s
impairments as supported by substantial evidence in the record.
Additionally, the ALJ independently consulted the Dictionary of
Occupational Titles (DOT), and concluded that the VE’s testimony was consistent
with information contained in the DOT. (Tr. 20-21). Cf. Kemp v. Colvin, 743
F.3d 630, 632 (8th Cir. 2014) (“[W]hen VE testimony conflicts with the DOT, the
DOT controls if its classifications are unrebutted.”; where ALJ did not address
possible conflict between the DOT and VE’s testimony remand was appropriate).
Plaintiff has not provided evidence to the contrary.
Because there was work which Plaintiff could perform, based on the
testimony of the VE and his independent review of the DOT, the ALJ found
Plaintiff was not disabled. Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011)
(ABased on our previous conclusion . . . that >the ALJ's findings of [the claimant=s]
RFC are supported by substantial evidence,= we hold that >[t]he hypothetical

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question was therefore proper, and the VE's answer constituted substantial
evidence supporting the Commissioner=s denial of benefits.=@) (quoting Lacroix v.
Barnhart, 465 F.3d 881, 889 (8th Cir. 2006)). As such, the court finds that the ALJ
posed a proper hypothetical to the VE; that the ALJ properly relied on the VE’s
testimony that there was work existing in significant numbers which Plaintiff could
perform; and that the ALJ’s finding that Plaintiff is not disabled is based on
substantial evidence and is consistent with the Regulations and case law.
E.

Evidence Submitted to the Appeals Council:
After the ALJ issued his opinion, Plaintiff submitted additional evidence to

the Appeals Council. This evidence included medical records, dated from April
15, 2013, to July 25, 2013, from the office of Plaintiff’s family doctor, medical
records from St. Clare Health Care, dated June 12, 2013 to August 25, 2013, and
therapy progress notes from Comtrea, dated April 4 to September 13, 2013.
Plaintiff acknowledges that the text of the Appeals Council’s decision makes it
clear that it considered this new evidence, but that it nonetheless found that the
record as a whole supported the ALJ’s decision. Plaintiff contends, however, that
the additional evidence does not support the ALJ’s decision. (Doc. 15 at 14).
The Appeals Council will consider new and material evidence where it
relates to the period on or before the date of the ALJ hearing decision. 20 C.F.R. §
404.970(b). New and material evidence submitted to the Appeals Council which

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relates to the period before the date of the ALJ's decision becomes part of the
administrative record.

Myers v. Colvin, 721 F.3d 521, 526 (8th Cir. 2013)

(application for disability benefits remains in effect only until the issuance of
“hearing decision” on that application, so evidence submitted to appeals council
cannot affect the validity of the ALJ's determination if evidence is of treatment
claimant received after issuance of ALJ’s opinion); Davidson v. Astrue, 501 F.3d
987, 990 (8th Cir. 2007); Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir. 2000).
To be material, the evidence must be Anon-cumulative, relevant, and probative of
the claimant=s condition for the time period for which benefits were denied@ and
must not concern Asubsequent deterioration of a previously non-disabling
condition.@ Jones v. Callahan, 122 F.3d 1148, 1154 (8th Cir. 1997). See also
Rehder v. Apfel, 205 F.3d 1056, 1061 (8th Cir. 2000).
Once it is clear that the Appeals Counsel has considered newly submitted
evidence, the reviewing court does not evaluate the Council’s decision to deny
review based on the new evidence; rather, the role of the court is limited to
deciding whether the ALJ’s determination is supported by substantial evidence on
the record as a whole, including new evidence submitted after the determination
was made. See Davidson v. Astrue, 501 F.3d 987, 990 (8th Cir. 2007) (“Where, as
here, the Appeals Council considers new evidence but denies review, we must
determine whether the ALJ’s decision was supported by substantial evidence on

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the record as a whole, including the new evidence.”); Stephens v. Shalala, 50 F.3d
538, 541 (8th Cir. 1995) (“Material new evidence considered by the Appeals
Council will be viewed with the record as a whole, whereas new evidence not
considered by the Appeals Council will be considered by the reviewing court only
upon a showing of materiality and good cause for not incorporating it in the earlier
proceedings.”; on review, the court will consider the additional evidence as part of
the record, “but only to the extent [the claimant] can independently satisfy us as to
its materiality.”).
While the new evidence submitted to the Appeals Council does relate to the
relevant time period, this court’s review establishes that it is merely cumulative
and that there is no reasonable likelihood that the ALJ’s decision would have been
different had he considered the additional evidence submitted to the Appeal’s
Council. Indeed, upon reaching its conclusion that the ALJ’s credibility and RFC
determination, as well as his consideration of the severity of Plaintiff’s mental
conditions, are based on substantial evidence, the court has considered the
additional evidence. Notably, in regard to the cumulative nature of the additional
evidence, this evidence included Dr. Rohatgi’s notes reflecting that, on the same
day, April 4, 2013, that Plaintiff said she was doing well, that she was able to
perform activities of daily living and that she had no problems eating or sleeping,
Plaintiff also told Dr. Rohatgi that she could not work. (Tr. 610). Also included

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are records, dated May 30, 2013, reflecting that Plaintiff told Dr. Rohatgi that she
was able to perform activities of daily living (Tr. 632), and records, dated August
6, 2013, reflecting that Plaintiff’s memory, affect and judgment were normal (Tr.
578). Further, as discussed above in regard to Plaintiff’s credibility, the additional
evidence submitted to the Appeals Council reflects that Plaintiff’s symptoms
improved with medication, and that Plaintiff had “no complaints,” denied
depression, and was “doing well.” (Tr. 642, 650). The court finds, therefore, that
the additional evidence which Plaintiff submitted to the Appeals Council fails to
establish that the ALJ’s decision is not based on substantial evidence, and that
Plaintiff’s arguments to the contrary are without merit.
V.
CONCLUSION
For the reasons set forth above, the court finds that substantial evidence on
the record as a whole supports the Commissioner’s decision that Plaintiff is not
disabled.
Accordingly,

IT IS HEREBY ORDERED that the relief sought by Plaintiff in her
Complaint and Brief in Support of Complaint (Docs. 1, 15) is DENIED;

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IT IS ORDERED that a separate judgment be entered incorporating this
Memorandum and Order.

Dated this 18th day of December 2015.
/s/ Noelle C. Collins
UNITED STATES MAGISTRATE JUDGE

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