Pupic v. Colvin

Filing 23

MEMORANDUM AND ORDER... IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED. A separate Judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 8/29/2016. (NEB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
EDIN PUPIC,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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No. 4:15-cv-00599-AGF

MEMORANDUM AND ORDER
This action is before the Court for judicial review of the final decision of the
Commissioner of Social Security finding that Plaintiff Edin Pupic was not disabled and,
thus, not entitled to disability insurance benefits under Title II of the Social Security Act,
42 U.S.C. §§ 401-434, or supplemental security income under Title XVI of the Act, 42 §§
1381-1383f. For the reasons set forth below, the decision of the Commissioner will be
affirmed.
BACKGROUND
Plaintiff, who was born on September 14, 1961, filed applications for disability
benefits and supplemental security income on February 27, 2012, alleging a disability
onset date of September 27, 2011, due to both mental and physical impairments. His
alleged mental impairments included post-traumatic stress disorder (“PTSD”), severe

depression, and insomnia. 1 The Social Security Administration denied Plaintiff’s claims
on April 25, 2012, and Plaintiff filed a request for a hearing before an administrative law
judge (“ALJ”). Following a hearing on May 9, 2013, the ALJ issued a written decision
on September 4, 2013, denying benefits. Plaintiff requested review of the ALJ’s decision
by the Appeals Council; the request was denied on February 5, 2015. Thus, the decision
of the ALJ stands as the final decision of the Commissioner. See Sims v. Apfel, 530 U.S.
103, 107 (2000).
Plaintiff argues that the ALJ’s decision is not supported by substantial evidence in
the record as a whole. Specifically, Plaintiff argues that the ALJ failed to fully describe
how medical and other evidence supported the ALJ’s determination of Plaintiff’s residual
functional capacity (“RFC”); failed to consider all of the relevant evidence in determining
Plaintiff’s RFC; and failed to give proper weight to the opinion of Plaintiff’s therapist and
licensed clinical social worker, Helen McGlynn, Ph.D., whom Plaintiff admits is not an
“acceptable medical source,” as defined in the Commissioner’s regulations.2
Work History and Application Forms
Plaintiff represented on his application forms that he worked from 1999 to 2006 as
a supervisor for a cleaning service, and from 2006 to 2011 as a long-distance truck driver.

1

As Plaintiff’s legal arguments relate only to his mental impairments, this
Memorandum and Order does not discuss Plaintiff’s physical impairments, including his
alleged spine and leg problems, vision problems, swollen feet, and shortness of breath.
2

The record does not reflect the subject in which Helen McGlynn earned her Ph.D.,
but the parties agree that she is not an acceptable medical source because she is not a
licensed or certified psychologist. They nevertheless refer to her as “Dr. McGlynn,” in
light of her Ph.D., and the Court will do the same.
2

He indicated that he stopped working on September 27, 2011 because of his conditions.
(Tr. 155-56.) Plaintiff also indicated that his primary language was Bosnian and that he
could not read or write much in English.3 (Tr. 161.)
On a third-party Function Report dated March 16, 2012, and completed by
Plaintiff’s daughter, with whom Plaintiff lived at the time, Plaintiff’s daughter described
Plaintiff’s typical daily activities as getting up in the morning, taking his medicine,
having coffee with his daughter, and otherwise being uninterested in doing anything
unless his daughter took him somewhere. (Tr. 162.) Plaintiff’s daughter reported that
Plaintiff’s conditions affected his sleep; that although Plaintiff was able to maintain
personal care and complete some yard work, he did not want to do these things alone; and
that his conditions affected his concentration, memory, understanding, ability to follow
instructions, and ability to get along with others. (Tr. 163-68.)
Medical Records
On February 15, 2012, Plaintiff presented to Places for People, a mental health
organization, for an initial psychiatric evaluation with licensed psychiatrist Mirela Marcu,
M.D. Plaintiff was accompanied by his wife and an interpreter. Plaintiff, a Bosnian war
survivor who had been physically beaten and emotionally tortured during the war,
reported that he had flashbacks of the war at least two to three times per week, elicited by
various triggers from the environment. Plaintiff reported hearing voices, especially the
voice of a friend who was killed during the war, and being depressed, with symptoms

3

It is unclear from the record whether Plaintiff completed this form on his own or
with the assistance of an interpreter.
3

including decreased pleasure and interest, poor sleep, and intrusive thoughts. (Tr. 214.)
In a mental status examination, Dr. Marcu indicated that Plaintiff was cooperative and
pleasant, but that he had a depressed mood. Dr. Marcu recorded that Plaintiff had no
suicidal or homicidal ideations, but she noted the presence of auditory hallucinations and
paranoid delusions. She indicated that Plaintiff had good insight and judgment, and a
goal-directed thought process. Dr. Marcu diagnosed Plaintiff with PTSD and severe
major depressive disorder. She prescribed Cymbalta and Klonopin, and referred Plaintiff
to therapy. Dr. Marcu also assigned Plaintiff a Global Assessment of Functioning
(“GAF”) score of 40.4 (Tr. 218.)
Plaintiff returned to see Dr. Marcu on March 7, 2012, accompanied again by his
wife and an interpreter. He reported improvement; he was less anxious, felt less hopeless
and worthless, and had better sleep and an improved mood. However, Plaintiff also
reported still feeling isolated, being easily startled, hearing voices, and feeling like
someone was “on [his] back.” Dr. Marcu noted that Plaintiff was pleasant and had clean
clothes, normal speech, and fair insight and judgment. On this visit, Dr. Marcu
diagnosed Plaintiff with PTSD and psychosis, and added Abilify to Plaintiff’s prescribed
medication. (Tr. 220.)
4

The GAF, or Global Assessment of Functioning, is a numeric scale ranging from
zero to one hundred used to rate social and psychological functioning. Diagnostic and
Statistical Manual of Mental Disorders, 32 (4th ed. Am. Psychiatric Ass’n, Text Revision
2000) (DSM-IV-TR). A GAF of 31-40 is defined as having some impairment in reality
testing or communication, or major impairment in several areas, such as work or school,
family relations, judgment, thinking, or mood. Id. However, “[i]n recent years, the
agency has recognized, and [the Eighth Circuit has] noted, that GAF scores have limited
importance.” Nowling v. Colvin, No. 14-2170, 2016 WL 690821, at *3 (8th Cir. Feb. 22,
2016).
4

On March 8, 2012, Plaintiff underwent an initial assessment with Dr. McGlynn, a
therapist at the Center for Survivors of Torture and War Trauma.5 Plaintiff reported that
he had been in a truck accident several months before, when he was driving his truck in
the rain. (Tr. 266-69.) Plaintiff reported that he saw his “dead friend” on the seat next to
him at the time of the accident. (Tr. 307-08.) Plaintiff indicated he was fired from his
job after the accident. Plaintiff also reported hallucinations, such as frequently hearing
his deceased friend’s voice and seeing white mice. Dr. McGlynn assessed Plaintiff’s
GAF score as 38. Dr. McGlynn reported that Plaintiff’s general appearance, motor
activity, affect/mood/attitude, thought content and process, orientation, insight, and
judgment, were all within normal limits, and she recorded no suicidal ideation. (Tr. 26669.)
Plaintiff engaged in weekly psychotherapy with Dr. McGlynn through the end of
March 2012. They discussed improving his poor sleep and reducing the hallucinations of
his deceased friend. Dr. McGlynn reported that Plaintiff appeared well-groomed and was
cooperative but depressed. (Tr. 303-06.)
Plaintiff returned to see Dr. Marcu on April 11, 2012, again attending his
appointment with a family member and an interpreter. At this time, Plaintiff reported
some improvement in his anxiety and depression, but he again reported poor sleep and
appetite, stating that he lost 15 pounds in the last two months. On mental status
examination, Dr. Marcu observed that Plaintiff appeared disheveled, tired, and unshaven.

5

It is unclear whether an interpreter accompanied Plaintiff in his visits with Dr.
McGlynn.
5

Dr. Marcu noted that Plaintiff’s speech was soft and he exhibited a depressed and
constricted affect. Plaintiff still had no suicidal or homicidal ideations, but he continued
to talk to his deceased friend, whom he stated died in his arms during the war.
Plaintiff saw Dr. McGlynn for six more psychotherapy sessions between April 12,
2012 and June 13, 2012. (Tr. 293-300.) On April 17, 2012, Plaintiff reported that
Cymbalta was helping him and that Abilify helped to calm him, but that he still could not
sleep. Dr. McGlynn observed that Plaintiff appeared disheveled, depressed, and irritable,
but she also indicated that he was insightful and she did not indicate that he lacked
concentration. (Tr. 299.) On April 25, 2012, Plaintiff stated that he got “panicky when
away from home.” (Tr. 298.) Throughout June 2013, Plaintiff continued to report that he
saw and spoke with his deceased friend. During these visits, Dr. McGlynn observed that
Plaintiff was well-groomed and cooperative but had a depressed mood. (Tr. 293-94.)
Plaintiff had a follow-up appointment at Places for People on June 27, 2012.6
During this visit, Plaintiff, accompanied by an interpreter, reported that he was still
isolating himself and feeling irritable and pessimistic. However, Plaintiff reported that
his anxiety had decreased, and he had no suicidal or homicidal ideations. On mental
status examination, Plaintiff’s speech, thought process, thought content, insight, and
judgment were all within normal limits. Plaintiff was reported to be dysphoric and
sarcastic, with poor eye contact and a restricted and irritable affect. Plaintiff was

6

The parties agree that the progress notes for this appointment do not appear to
have been written by Dr. Marcu, so the parties assume that Plaintiff was treated by a
different provider on this date.
6

diagnosed with depression and PTSD with psychotic features. His medication
prescriptions were continued, and his prescription for Abilify was increased. (Tr. 248.)
Plaintiff had two more psychotherapy sessions with Dr. McGlynn in July 2012,
during which Dr. McGlynn observed that Plaintiff was well-groomed, cooperative, and
insightful, but also agitated and depressed. (Tr. 290-92.)
Dr. Marcu treated Plaintiff again on August 8, 2012. Plaintiff attended the visit
with an interpreter, his daughter, a case worker, and a therapist. Plaintiff and his
daughter felt that Plaintiff had not made any improvement, but Plaintiff reported that his
sleep had improved. Plaintiff also reported continuing to have nightmares, but stated that
they occurred less frequently. Plaintiff reported that he was living with his daughter
because he could no longer live with his large family. Plaintiff continued to have visual
and auditory hallucinations of his deceased friend, and Dr. Marcu observed that Plaintiff
was very depressed, was hopeless, and had a constricted affect. Dr. Marcu noted that
Plaintiff appeared to be very dysphoric and irritable but that he had fair insight and
judgment. Dr. Marcu stated that Plaintiff did not want his medication changed. (Tr.
249.)
Plaintiff was treated by his general practitioner, Gopy Arumugam, M.D., on
August 21, 2012. He reported no feelings of hopelessness and stated that his mood was
currently well-controlled with medication. (Tr. 233-35.)
Plaintiff last saw Dr. Marcu on September 5, 2012. Plaintiff initially stated that he
was doing well but later stated that he was ill, did not work, and talked to people that

7

were not there. Dr. Marcu assessed Plaintiff with symptomatic PTSD and continued his
medications. (Tr. 250.)
Plaintiff visited again with Dr. Arumugam on November 9, 2012, at which time he
again denied feelings of hopelessness, had a normal appearance and affect, and had a
euthymic mood. (Tr. 225-26.)
Plaintiff continued to engage in regular psychotherapy with Dr. McGlynn from
September 2012 to May 2013. (Tr. 273-89.) Plaintiff continued to report seeing his
deceased friend and not sleeping well. (Tr. 284, 286, 288.) On February 20, 2013, Dr.
McGlynn noted that Plaintiff was “better” and “stable,” he appeared well-groomed, and
was cooperative but had agitated motor activity, had a depressed mood, and still had
auditory and visual hallucinations. (Tr. 282.) On March 6, 2013, Dr. McGlynn observed
that Plaintiff was well-groomed, relaxed, had a normal mood, and was focused.
Likewise, on May 15, 2013, Dr. McGlynn observed that Plaintiff appeared well-groomed,
was cooperative, had relaxed motor activity, and had a normal mood. (Tr. 273.)
Dr. McGlynn completed a mental medical source statement on behalf of Plaintiff
on April 11, 2013. In activities of daily living, Dr. McGlynn checked that Plaintiff had
marked limitation in ability to cope with normal work stress and function independently,
and moderate limitation in ability to behave in an emotionally stable manner. In the area
of social functioning, Dr. McGlynn checked that Plaintiff had marked limitation in ability
to relate in social situations, interact with general public, and accept instructions and
respond to criticism, and moderate limitation in ability to maintain socially acceptable
behavior. Dr. McGlynn checked that Plaintiff had marked limitation in all areas of
8

concentration, persistence, or pace. She also wrote that Plaintiff was depressed and
isolated, had insomnia, was easily startled, and had intrusive memories and body pain.
(Tr. 240-43.)
On September 11, 2013, Plaintiff was treated by psychiatrist Jaron Asher, M.D., at
the Family Care Health Centers. (Tr. 321-22.) Dr. Asher diagnosed Plaintiff with PTSD
and anxiety. Plaintiff reported to Dr. Asher that Cymbalta had helped him but had not
helped him enough. Dr. Asher noted that Plaintiff needed an increase in his medication,
and if that did not work, a change in his medication. Dr. Asher believed that Plaintiff’s
hallucinations of his deceased friend were due to PTSD and not psychosis. He
recommended increasing Plaintiff’s dosage of Cymbalta and Abilify, letting the changes
take effect, and then having Plaintiff return to his therapist. (Tr. 322.) Dr. Asher noted
that he was only able to see Plaintiff three times due to the limited psychiatric resources
at Family Care Health Centers. (Tr. 321.)
Evidentiary Hearing of May 9, 2013 (Tr. 27-44)
1. Plaintiff’s testimony (Tr. 30-40)
Plaintiff testified at the hearing through an interpreter. At the time of the hearing,
Plaintiff was 51 years old. Plaintiff testified that he was a college graduate, having
earned a degree in gymnastics education in Bosnia. He testified that he was a citizen, and
to become a citizen, he was required to pass a citizenship test in English. He testified that
he could speak a little English, but he preferred to speak through an interpreter, and that
in prior employment as a cleaning crew supervisor, he supervised and was able to
communicate with workers who spoke English, Bosnian, and Spanish.
9

Plaintiff testified that he was previously a long-distance truck driver but that he
stopped working in 2011, after the truck accident noted above, which did not injure him
too badly but which exacerbated mental problems he had from his experience in the
Bosnian war. Plaintiff testified that his friend who was killed in the war came to talk to
him, and that he talked to his deceased friend for two hours at a time, approximately three
times over a two-week period. Plaintiff testified that this deceased friend appeared in his
truck at the time of the 2011 accident. However, he believed the accident was caused by
a lack of warning signs on the road, and not by seeing his deceased friend, because he
had talked to his deceased friend “a lot” before the accident without any incident.
Plaintiff further testified that ten days before the hearing, he saw “many” white
mice running into a hole in the wall, but he could not find the hole later. Plaintiff
testified that he had seen the mice before then, too, but only sometimes. Plaintiff testified
that he had thoughts of his war experiences even when he did not want to and that this
happened approximately three to five times over a two-week period.
Plaintiff testified that he could only sleep for four hours a night, even with
medicine, and that he had “huge” problems with concentration and focus. He testified
that when he read the newspaper or watched television, he would realize that he was
thinking about something totally different. He testified that he had similar experiences a
“long time ago” but that his prior experiences did not occur as often or for as long.
Plaintiff further testified that he forgets things very easily and that he lives with his
daughter and does not go outside the house by himself.

10

2. Testimony of Vocational Expert (Tr. 40-44)
The ALJ asked the VE about a hypothetical individual with the same education
and vocational background of Plaintiff, with certain physical limitations, who was able to
understand, remember, and carry out at least simple instructions and non-detailed tasks;
can respond appropriately to supervisors and coworkers in a task or in a setting where
contact with others is casual and infrequent; should not work in a setting which includes
constant or regular contact with the general public; and should not perform work which
includes more than infrequent handling of customer complaints. The ALJ asked the VE
whether such an individual could perform any of Plaintiff’s past relevant work. The VE
testified that, with those limitations, such an individual could not perform Plaintiff’s past
relevant work as a truck driver or cleaning crew supervisor.
The ALJ then asked the VE whether such an individual could perform any jobs
that exist in significant numbers on a regional and national level. The VE testified that
such an individual could perform the jobs of electronics hub assembler and production
assembler, which exist in significant numbers in the national economy.
Plaintiff’s attorney altered the hypothetical in his questioning of the VE, to add
that the individual had marked limitation—defined as a limitation that seriously interferes
with his ability to function independently, appropriately, and effectively—in coping with
normal work stress, accepting instructions, responding to criticism, and maintaining
attention to work tasks for up to two hours. The VE testified that, for such an individual,
work would be precluded.

11

The ALJ concluded the hearing by stating that he would refer Plaintiff to a
psychological consultative examination, along with an interpreter.
Consultative Examination of May 30, 2013 (Tr. 256-62)
Plaintiff attended a psychological consultative evaluation conducted by licensed
psychologist Kirmach Natani, Ph.D., on May 30, 2013, accompanied by an interpreter.
Plaintiff reported to Dr. Natani that he was depressed all the time and that his 2011 truck
accident, which occurred while he was driving through the rain at a construction site,
revived many of his memories from the war. Plaintiff stated that he had “spells” related
to his war experiences before his truck accident too, but they had worsened since the
accident. Plaintiff stated that he could no longer drive a truck, and that he no longer lived
with his wife and some of his children because they did not understand how much the
truck accident and loss of his job affected him.
In a mental status examination, Dr. Natani observed that Plaintiff was alert,
oriented, cooperative, and maintained good eye. Plaintiff showed no evidence of
problems expressing himself, but he was somatically occupied. Plaintiff’s mood was
dysthymic, his affect was anxious, and his thinking was concrete, though he was
preoccupied with his physical problems. Plaintiff reported having flashbacks about the
war, seeing things that were not there, and having conversations with his deceased friend.
Plaintiff could not repeat more than three of six digits forward or backward; he knew the
current and past two presidents, but not the Missouri governor; he refused to perform a
“serial 3s” task, stating that he was too tired; his simple arithmetic was correct; and he
demonstrated fair insight and judgment. (Tr. 258.)
12

Dr. Natani noted that Plaintiff helped with some household chores, but did not pay
bills, cook, shop, drive, use public transportation, or engage in activities outside the
home. Dr. Natani assessed Plaintiff’s concentration during the examination as adequate
but stated that his persistence was impaired by fatigue, possibly because he had not slept
well the night before, and his pace was slow. (Tr. 258-59.)
Dr. Natani diagnosed Plaintiff with PTSD, with his symptoms becoming more
severe after his 2011 truck accident, and mood disorder due to his general medical
condition. She assigned Plaintiff a GAF score of 55, indicating moderate symptoms
related to depression PTSD and personality factors. She assessed Plaintiff’s prognosis as
“poor.” (Tr. 259.)
On May 30, 2013, Dr. Natani also completed a mental medical source statement
regarding Plaintiff’s ability to do work-related activities. Dr. Natani checked that
Plaintiff had mild limitation in understanding, remembering, and carrying out simple
instructions, and moderate limitation in his ability to make judgments on simple and
complex work-related decisions and his ability to understand, remember, and carry out
complex instructions. She also checked that Plaintiff had moderate limitation in
interacting appropriately with the public, supervisors, and coworkers, and in responding
appropriately to usual work situations and changes in a routine work setting. Dr. Natani
wrote that Plaintiff had difficulty functioning in English, and as he was clinically
depressed, he was not motivated to expend any effort to compensate for his poor English.
She further wrote that Plaintiff had become a recluse at home because he did not want to

13

reveal his mental health problems to anyone. Dr. Natani indicated Plaintiff’s impairment
did not affect any other capabilities. (Tr. 260-62.)
ALJ’s Decision of September 4, 2013 (Tr. 7-25)
The ALJ determined that Plaintiff had not engaged in substantial gainful activity
since September 27, 2011, the alleged disability onset date. The ALJ found that Plaintiff
had the severe physical impairments of degenerative changes of the lumbar spine and
spur formation of the left ankle, and the severe mental impairments of major depressive
disorder and PTSD, but that no impairment or combination of impairments met or
medically equaled the severity of one of the deemed-disabling impairments listed in 20
C.F.R. Part 404, Subpart P, Appendix 1.
The ALJ determined that Plaintiff had the RFC to perform light work as defined in
the Commissioner’s regulations, in that, as relevant here, he could understand, remember,
and carry out at least simple instructions and non-detailed tasks; he could respond
appropriately to supervisors and coworkers in a task-oriented setting where contact with
others was casual and infrequent; he could not work in a setting that included constant or
regular contact with the general public; and he could not work in a setting that included
more than infrequent handling of customer complaints.
The ALJ relied on the VE’s testimony that an individual with Plaintiff’s RFC,
age, and vocational background could perform certain jobs that existed in substantial
numbers in the national economy, such as electronic subassembler and production
assembler. Thus, the ALJ found that Plaintiff was not disabled as defined by the Act.

14

In making his findings with respect to Plaintiff’s RFC assessment, the ALJ
summarized Plaintiff’s reports that the 2011 truck accident revived his memories of the
Bosnian war, including Plaintiff’s reports of hearing his deceased friend’s voice,
depression, anxiety, difficulty sleeping, and flashbacks. The ALJ also summarized
Plaintiff’s psychological consultative examination with Dr. Natani, his treatment by Dr.
Marcu and Dr. Arumugam, and his psychotherapy sessions with Dr. McGlynn.
The ALJ noted that Dr. Natani’s medical source statement indicated that Plaintiff
had moderate limitation in “areas of social functioning and concentration, persistence and
pace.” (Tr. 19.) The ALJ accorded that opinion “great weight” for the stated reasons that
Dr. Natani was a specialist who had an opportunity to examine Plaintiff in person and
because the limitations were consistent with her examination findings and with Plaintiff’s
treatment records. Specifically, the ALJ noted Plaintiff’s reports to Dr. Marcu of
improvement in March and April of 2012, and Dr. Arumugam’s notes in August and
November 2012 that Plaintiff had euthymic mood and normal affect, reported no feelings
of hopelessness, and reported that his mood was well controlled with medicine.
The ALJ assigned “little weight” to Dr. McGlynn’s April 11, 2013 opinion that
Plaintiff had marked limitations in areas of social functioning and concentration,
persistence, and pace, for the stated reason that Dr. McGlynn was not an acceptable
medical source, as defined in the Commissioner’s regulations.
DISCUSSION
The Court’s role on judicial review is to determine whether the ALJ’s findings are
supported by substantial evidence in the record as a whole. Pate–Fires v. Astrue, 564
15

F.3d 935, 942 (8th Cir. 2009). In determining whether the evidence is substantial, the
Court considers evidence that both supports and detracts from the Commissioner's
decision. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007). As long as substantial
evidence supports the decision, the Court may not reverse it merely because substantial
evidence exists in the record that would support a contrary outcome or because the court
would have decided the case differently. See Krogmeier v. Barnhart, 294 F.3d 1019,
1022 (8th Cir. 2002). A court should “disturb the ALJ’s decision only if it falls outside
the available zone of choice.” Papesh v. Colvin, 786 F.3d 1126, 1131 (8th Cir. 2015)
(citation omitted).
To be entitled to benefits, a claimant must demonstrate an inability to engage in
substantial gainful activity which exists in the national economy, by reason of a
medically determinable impairment which has lasted or can be expected to last for not
less than 12 months. 42 U.S.C. § 423(d)(1)(A). The Commissioner has promulgated
regulations, found at 20 C.F.R. § 404.1520, establishing a five-step sequential evaluation
process to determine disability. The Commissioner begins by deciding whether the
claimant is engaged in substantial gainful activity. If so, benefits are denied. If not, the
Commissioner decides whether the claimant has a “severe” impairment or combination of
impairments. A severe impairment is one which significantly limits a person’s physical
or mental ability to do basic work activities. 20 C.F.R. § 404.1521(a). A special
technique is used to determine the severity of mental disorders. This technique calls for
rating the claimant’s degree of limitations in four areas of functioning: activities of daily

16

living; social functioning; concentration, persistence, or pace; and episodes of
decompensation. Id. § 404 .1520a(c)(3).
If the claimant does not have a severe impairment that meets the duration
requirement, the claim is denied. If the impairment or combination of impairments is
severe and meets the duration requirement, the Commissioner determines at step three
whether the claimant’s impairment meets or is equal to one of the deemed-disabling
impairments listed in the Commissioner’s regulations. If not, the Commissioner asks at
step four whether the claimant has the RFC to perform his past relevant work. If so, the
claimant is not disabled. If he cannot perform his past relevant work, the burden of
producing evidence shifts at step five to the Commissioner to demonstrate that the
claimant retains the RFC to perform work that is available in the national economy and
that is consistent with the claimant’s vocational factors—age, education, and work
experience. Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010). “However, 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.” Hensley v.
Colvin, No. 15-2829, 2016 WL 3878219, at *3 (8th Cir. July 18, 2016) (quotation
omitted).
The RFC Determination
Plaintiff argues that the ALJ failed to consider all relevant evidence and failed to
fully describe how the medical and other evidence he did consider supported his RFC
determination. Specifically, Plaintiff argues that the ALJ “erroneously asserted that Dr.
Natani assessed Plaintiff with moderate limitation in concentration, persistence, and
17

pace,” when Dr. Natani actually found that Plaintiff had impaired persistence, due to poor
sleep, and slow pace. Plaintiff further argues that the ALJ’s finding that Plaintiff was
able to carry out at least simple instructions and work tasks on a regular and continuing
basis contradicts Dr. Natani’s findings with respect to his persistence and pace, and the
ALJ failed to explain this inconsistency. Finally, Plaintiff argues that the ALJ discussed
only some portions of Dr. Marcu’s and Dr. McGlynn’s medical records, and did not fully
discuss, for example, Plaintiff’s history of torture and abuse during his war service;
Plaintiff’s symptoms of hallucinations, flashbacks, and poor sleep; and Plaintiff’s low
GAF scores.
After careful review of the record, the Court concludes that substantial evidence
supports the ALJ’s RFC determination. As an initial matter, the Court agrees with
Defendant that the ALJ’s description of Dr. Natani’s opinion was accurate. The ALJ
correctly asserted that Dr. Natani’s report indicated that Plaintiff had moderate limitation
in “areas of” concentration, persistence, and pace. (Tr. 19.) Although Dr. Natani found
that Plaintiff had impaired persistence, due to poor sleep the night before, and slow pace,
she also indicated that he had adequate concentration. Further, her mental medical source
statement indicated Plaintiff had only mild limitation in the specific areas of
understanding, remembering, and carrying out simple instructions; and moderate
limitation in making simple and complex work-related decisions and in understanding,
remembering, and carrying out complex instructions.
The ALJ’s RFC determination accounted for Dr. Natani’s findings in this regard
by limiting Plaintiff to jobs that involved only simple instructions and non-detailed work
18

tasks. See Hensley, 2016 WL 3878219, at *4 (“The ALJ’s RFC determination accounted
for Hensley’s mental impairments [of PTSD] by limiting him to jobs that involve simple,
repetitive tasks learned by rote, with incidental interpersonal contact and simple, direct,
concrete supervision.”); Howard v. Massanari, 255 F.3d 577, 582 (8th Cir. 2001) (“[T]he
ALJ’s hypothetical concerning someone who is capable of doing simple, repetitive,
routine tasks adequately captures Howard’s deficiencies in concentration, persistence or
pace.”).
Plaintiff’s remaining arguments with respect to the ALJ’s RFC determination
appear to fall within the category of deficiencies in opinion writing. “An arguable
deficiency in opinion writing that had no practical effect on the decision is not a
sufficient reason to set aside the ALJ’s decision,” and an “ALJ is not required to discuss
every piece of evidence submitted.” Hensley, 2016 WL 3878219, at *4. Here, the ALJ
properly cited specific evidence in the record that supported his finding that Plaintiff had
some limitations due to his impairments, but that these limitations were not disabling.
Specifically, the ALJ correctly noted that while Plaintiff consistently reported symptoms
of hallucinations, depression, anxiety, flashbacks, and poor sleep, he also indicated that
medication helped improve or control these symptoms. Moreover, in some of his most
recent psychotherapy sessions with Dr. McGlynn, in March and May of 2013, Dr.
McGlynn observed that Plaintiff was well-groomed, cooperative, relaxed, in a normal
mood, and focused.
Also, although the ALJ did not specifically reference the GAF scores assessed by
Dr. Marcu and Dr. McGlynn, he did discuss these providers’ records containing the GAF
19

scores, which suggests that he considered the scores when considering the overall
evidence. See Bradley v. Astrue, 528 F.3d 1113, 1115 n.3 (8th Cir. 2008) (“Bradley
contends the ALJ erred by failing to consider Bradley’s [GAF] score. Given this test was
part of Dr. True’s assessment, the ALJ necessarily considered the test when considering
the overall evidence from Dr. True.”).
While “GAF scores are not determinative of RFC, . . . they offer some evidence of
a claimant’s ability to function.” Hensley, 2016 WL 3878219, at *4 n.3. Plaintiff’s low
GAF scores of 38 and 40 in February and early March of 2012 give the Court pause.
However, the Court notes that in his May 2013 consultative examination, Dr. Natani, a
specialist, assessed Plaintiff to have a much higher GAF score of 55. In any event, “an
ALJ may afford greater weight to medical evidence and testimony than to GAF scores
when the evidence requires it.” Jones v. Astrue, 619 F.3d 963, 974 (8th Cir. 2010). Here,
as discussed above, the ALJ cited medical evidence supporting his RFC finding.
Therefore, although it is a close question and the case could be decided differently, the
Court cannot say that the ALJ’s RFC determination fell outside the available zone of
choice.
Opinion of Plaintiff’s Therapist, Dr. McGlynn
As Plaintiff admits, Dr. McGlynn is not an acceptable medical source, as defined
in the Commissioner’s regulations, because she is not licensed or certified as a
psychologist. 20 C.F.R. § 404.1513(a). “[T]here are three major distinctions between
acceptable medical sources and the others: (1) Only acceptable medical sources can
provide evidence to establish the existence of a medically determinable impairment, (2)
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only acceptable medical sources can provide medical opinions, and (3) only acceptable
medical sources can be considered treating sources.” Sloan v. Astrue, 499 F.3d 883, 888
(8th Cir. 2007) (citations omitted). “Other sources” include medical sources such as
nurse practitioners, physician assistants, chiropractors, and licensed clinical social
workers or therapists like Dr. McGlynn. Id.
“Evidence provided by ‘other sources’ must be considered by the ALJ; however,
the ALJ is permitted to discount such evidence if it is inconsistent with the evidence in
the record.” Lawson v. Colvin, 807 F.3d 962, 967 (8th Cir. 2015). Factors governing the
consideration of opinions from other sources include the length of the relationship,
frequency of examination, how well the opinion is supported, consistency with other
evidence, and expertise or specialty of the source. Blackburn v. Colvin, 761 F.3d 853,
859 (8th Cir. 2014) (citing 20 C.F.R. §§ 404.1527(c), 416.927(c)); Sloan, 499 F.3d at 889
(citation omitted).
As Plaintiff correctly notes, the length of Plaintiff’s relationship with Dr.
McGlynn, the frequency of her examination, and her specialty in treating survivors of
war trauma are factors supporting her opinion. And the ALJ in fact accounted for some
of the limitations noted by Dr. McGlynn in his RFC determination, when he found that
Plaintiff was limited to simple instructions and non-detailed tasks, and could not work in
a setting that included constant or regular public contact or more than infrequent handling
of customer complaints. However, as discussed above, the ALJ also cited medical
evidence that was inconsistent with Dr. McGlynn’s findings of marked limitations in

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nearly every area of functioning. Based on these inconsistencies, the ALJ was permitted
to discount Dr. McGlynn’s opinion.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
AFFIRMED.
A separate Judgment shall accompany this Memorandum and Order.

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 29th day of August, 2016.

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