Casteel v. Colvin
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the decision of the Commissioner of Social Security is AFFIRMED. Signed by Magistrate Judge Shirley Padmore Mensah on 9/19/16. (CAR)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NICHOLAS G. CASTEEL,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the final
decision of Defendant Carolyn W. Colvin, the Acting Commissioner of Social Security, denying
the application of Plaintiff Nicholas Casteel (“Plaintiff”) for Supplemental Security Income (“SSI”)
under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq. (the “Act”). The parties
consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C. § 636(c).
(Doc. 9). Because I find the decision denying benefits is supported by substantial evidence, I will
affirm the Commissioner’s denial of Plaintiff’s application.
On November 6, 2009, Plaintiff filed an application for SSI benefits, alleging that he had
been unable to work since June 6, 2008, due to dystonia, bipolar disorder, depression, nerve
damage in his legs, and short-term memory loss. (Tr. 149-60, 225). Plaintiff’s claim was denied
initially. (Tr. 90-94). Plaintiff requested a hearing before an administrative law judge (ALJ), and
the ALJ found that Plaintiff was not under a disability as defined in the Act. (Tr. 14-38). On March
2, 2011, the Appeals Council denied Plaintiff’s request for review. (Tr. 5-10). Plaintiff appealed to
this Court, and on March 29, 2013, this Court remanded the case back to the Commissioner for
further proceedings, including a re-evaluation of the credibility of Plaintiff’s subjective complaints
and a re-evaluation of the opinion offered by independent medical examiner Ana Marie Soto, M.D.
(Tr. 810-46). On December 4, 2013, following a second hearing, the ALJ again found that Plaintiff
was not under a disability as defined in the Act. (Tr. 697-712). On February 25, 2015, the Appeals
Council declined to review the case. (Tr. 682-85). Plaintiff has exhausted all administrative
remedies, and the decision of the ALJ stands as the final decision of the Commissioner of the
Social Security Administration.
FACTUAL BACKGROUND 1
At the time of the hearing before the ALJ held on September 24, 2013, Plaintiff was 26
years old and had a tenth-grade education. (Tr. 757-58). He could not remember how long it had
been since he last worked. (Tr. 758). Plaintiff testified that he has not stayed at jobs long because he
hears voices, because it is hard on him to be around a lot of people, and because he has weakness in
his legs. (Tr. 758-59). Plaintiff lived with his mother and was able to do routine household chores;
his mother helped him take care of his children. (Tr. 761-62). He testified that he was on several
medications and that although they help, he still has problems. (Tr. 759).
Plaintiff’s medical records dated prior to the alleged onset date show a history of dizziness,
possible movement disorder, auditory processing disorder, depression, anxiety, cognitive issues,
and drug and alcohol abuse. (Tr. 272-283, 317-19). During the alleged disability period, Plaintiff
sought treatment for symptoms including anxiety, difficulty focusing, mood swings, difficulty
being around people, delusions, hearing voices, paranoia, anger outbursts, difficulty sleeping,
dizziness, and alcohol intoxication, and his treatment providers frequently adjusted his medications
to try to address these symptoms. (Tr. 363, 561-65, 569, 571-72, 589-90, 593, 635, 639, 1064,
The following is not intended to be an exhaustive summary of the medical records. The Court
focuses, as do the parties, on Plaintiff’s mental impairments and on the records most relevant to the
issues raised in Plaintiff’s brief.
1073, 1075, 1136, 1185, 1148-49, 1235-1270, 1293-1298, 1313-14, 1338-39, 1404-1426). At
various times, his treatment providers diagnosed conditions including dystonia, bipolar affective
disorder, major depressive disorder, generalized anxiety disorder, mood disorder not otherwise
specified, mood disorder not otherwise specified with psychosis, alcohol abuse, polysubstance
dependence, psychosis—alcoholic, schizophrenia, and schizoaffective disorder. (Tr. 364, 540, 56163, 570-72, 590, 593, 1184-85, 1219, 1235-1270, 1293-1298, 1323, 1339, 1346, 1358, 1404-1426).
He was hospitalized for his mental symptoms on several occasions. (Tr. 363, 1185, 1148, 1313,
1339). The most recent records from Plaintiff’s treating psychiatrist, Dr. Sridebi Gavirneni, are
from July and August 2013 and show diagnoses of major depressive order, generalized anxiety
disorder, mood disorder not otherwise specified, alcohol abuse, and rule out cannabis abuse. (Tr.
The record contains several opinions from medical and psychological experts. On January
12, 2009, medical consultant Stanley Hutson, Ph.D., reviewed the record and found Plaintiff
moderately limited in the ability to maintain attention and concentration for extended periods; the
ability to complete a normal workday; the ability to respond appropriately to changes in the work
setting; the ability to travel in unfamiliar places or use public transportation; and the ability to set
realistic goals or make plans independently of others. (Tr. 514-15). He found that Plaintiff had the
ability to understand, carry out, and remember simple instructions; to respond appropriately to
supervisors and co-workers in usual work situations; and to deal with routine changes in the work
environment. (Tr. 516).
On February 18, 2010, clinical psychologist Dr. Joseph M. Long conducted a consultative
examination of Plaintiff. (Tr. 538-40). Dr. Long noted that Plaintiff was well groomed, was alert
and oriented; correctly completed a Serial 4 addition task and made one error on a Serial 7
subtraction task; had an affect that was flat and constrained with a moderately anxious quality;
made little eye contact; and showed no evidence of gross impairment of psychological functioning
due to hallucinations, delusional ideation, or extreme emotional lability. (Tr. 538-39). Dr. Long
found that Plaintiff had bipolar disorder by history, probable anxiety disorder, alcohol abuse in
reported remission, and marijuana abuse. (Tr. 540). He opined that Plaintiff’s ability to understand
and remember instructions was mildly impaired, his ability to concentrate and persist with tasks
was moderately impaired, and his social and adaptive functioning was moderately impaired. (Tr.
On March 2, 2010, medical consultant Aine Krescheck reviewed the record and found that
Plaintiff had mild restriction of activities of daily living, moderate difficulties in maintaining social
functioning, and moderate difficulties in maintaining concentration, persistence, or pace. (Tr. 552).
She found moderate limitations in Plaintiff’s ability to understand, remember, and carry out
detailed instructions; the ability to maintain attention and concentration for extended periods; the
ability to work in coordination with or proximity to others without being distracted by them; the
ability to complete a normal workday and workweek without interruptions from psychologically
based symptoms and to perform without an unreasonable number and length of rest periods; the
ability to accept instructions and respond appropriately to criticism from supervisors; the ability to
get along with coworkers or peers without distracting them or exhibiting behavioral extremes; and
the ability to respond appropriately to changes in the work setting. (Tr. 541-42). She opined that
Plaintiff “must avoid work involving intense or extensive interpersonal interaction, handling
complaints or dissatisfied customers, close proximity to coworkers, close proximity to available
controlled substances, multi-step instructions, multi-tasking activities, and public contact.” (Tr.
543). She found Plaintiff capable of one- to two-step repetitive work activities. (Tr. 554).
On or around October 1, 2010, psychiatrist Dr. Ana Maria Soto conducted an examination
of Plaintiff, in two sessions. (Tr. 659-666). Dr. Soto described in detail Plaintiff’s medical and
social history. (Tr. 660-65). On mental status examination, Dr. Soto found that Plaintiff was overall
cooperative but showed signs of distraction; had voices that seemed to be interfering with his
answers; showed slow movement and production of speech; had soft, slow, hesitant, monotonous
speech; had a mood that was despairing, anxious, depressed, and futile; had an affect that was
constricted and almost flat; had a sense of déjà vu; had auditory hallucinations with voices talking
to each other; had visual hallucinations; had a thought flow that was at times fragmented; had
thought content that revealed a persecutory trend; and had severe problems in concentration. (Tr.
665). Dr. Soto found that Plaintiff’s symptoms “have been developing over time, culminating in
full-blown schizophrenia with an affective component, primarily depressed.” (Tr. 661). Dr. Soto
found Plaintiff was moderately impaired in activities of daily living; was severely impaired in
social functioning; and was severely impaired in the ability to complete tasks. (Tr. 663-64). She
diagnosed Plaintiff with schizoaffective disorder, depressive type; obsessive compulsive disorder;
panic disorder associated with agoraphobia; borderline intellectual function; back pain; history of
weakness; dystonic reaction; and possible Parkinson symptomatology. (Tr. 666). In an addendum
dated January 21, 2011, she explained the nature of schizophrenia as a disease, explaining that it
can involve periods of partial remission. (Tr. 668).
On May 4, 2012, medical consultant Dr. Robert Cottone, Ph.D., reviewed the medical
record and found that Plaintiff could understand, remember, carry out, and persist at simple tasks;
make simple work-related judgments; relate adequately to co-workers and supervisors; and adjust
adequately to ordinary changes in work routine or setting. However, he also found that Plaintiff
must avoid work involving intense or extensive interpersonal interaction; handling complaints or
dissatisfied customers; close proximity to co-workers; and close proximity to available controlled
substances. (Tr. 1292).
On September 13, 2013, orthopedic surgeon Dr. Anthony Francis, M.D., testified at the
hearing before the ALJ that he had reviewed Plaintiff’s records, that most of Plaintiff’s issues were
psychological, and that Plaintiff could perform at least sedentary work. (Tr. 731-32).
Also on September 13, 2013, clinical psychologist Dr. James Reid reviewed the record and
testified at the hearing before the ALJ. (Tr. 734-35). He opined that Plaintiff’s impairments equaled
Listing 12.09 (substance addiction disorders), Listing 12.04 (depressive syndrome), and Listing
12.06 (anxiety disorders). (Tr. 743). However, he also opined that if Plaintiff were clean and sober,
Plaintiff’s impairments would not meet or equal any listed impairment. (Tr. 744). Dr. Reid opined
that without substance abuse, Plaintiff would be limited to simple, routine, repetitive tasks with
only limited interaction with the public, co-workers, and supervisors; and would have moderate
limitations in the ability to deal with changes in workplace routine. (Tr. 745-46).
STANDARD FOR DETERMINING DISABILITY UNDER THE ACT
To be eligible for benefits under the Social Security Act, a claimant must prove he or she is
disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Sec’y of Health &
Human Servs., 955 F.2d 552, 555 (8th Cir. 1992). The Social Security Act defines as disabled a
person who is unable “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 which has
lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C.
§§ 423(d)(1)(A); 1382c(a)(3)(A); see also Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010). The
impairment must be “of such severity that [the claimant] is not only unable to do his previous work
but cannot, considering his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy, regardless of whether such work
exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.” 42 U.S.C. § 1382c(a)(3)(B).
To determine whether a claimant is disabled, the Commissioner engages in a five-step
evaluation process. 20 C.F.R. § 416.920(a); see also McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir.
2011) (discussing the five-step process). At Step One, the Commissioner determines whether the
claimant is currently engaging in “substantial gainful activity”; if so, then he is not disabled. 20
C.F.R. § 416.920(a)(4)(i); McCoy, 648 F.3d at 611. At Step Two, the Commissioner determines
whether the claimant has a severe impairment, which is “any impairment or combination of
impairments which significantly limits [the claimant’s] physical or mental ability to do basic work
activities”; if the claimant does not have a severe impairment, he is not disabled. 20 C.F.R. §§
416.920(a)(4)(ii), 416.920(c); McCoy, 648 F.3d at 611. At Step Three, the Commissioner evaluates
whether the claimant’s impairment meets or equals one of the impairments listed in 20 C.F.R. Part
404, Subpart P, Appendix 1 (the “listings”). 20 C.F.R. § 416.920(a)(4)(iii); McCoy, 648 F.3d at
611. If the claimant has such an impairment, the Commissioner will find the claimant disabled; if
not, the Commissioner proceeds with the rest of the five-step process. 20 C.F.R. § 416.920(d);
McCoy, 648 F.3d at 611.
Prior to Step Four, the Commissioner must assess the claimant’s “residual functional
capacity” (“RFC”), which is “the most a claimant can do despite [his or her] limitations.” Moore v.
Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20 C.F.R. § 404.1545(a)(1)); see also 20 C.F.R.
§ 416.920(e). At Step Four, the Commissioner determines whether the claimant can return to his
past relevant work, by comparing the claimant’s RFC with the physical and mental demands of the
claimant’s past relevant work. 20 C.F.R. §§ 416.920(a)(4)(iv), 416.920(f); McCoy, 648 F.3d at 611.
If the claimant can perform his past relevant work, he is not disabled; if the claimant cannot, the
analysis proceeds to the next step. Id. At Step Five, the Commissioner considers the claimant’s
RFC, age, education, and work experience to determine whether the claimant can make an
adjustment to other work in the national economy; if the claimant cannot make an adjustment to
other work, the claimant will be found disabled. 20 C.F.R. § 416.920(a)(4)(v); McCoy, 648 F.3d at
Through Step Four, the burden remains with the claimant to prove that he is disabled.
Moore, 572 F.3d at 523. At Step Five, the burden shifts to the Commissioner to establish that, given
the claimant’s RFC, age, education, and work experience, there are a significant number of other
jobs in the national economy that the claimant can perform. Id.; Brock v. Astrue, 674 F.3d 1062,
1064 (8th Cir. 2012).
Where drug addiction or alcoholism is present, the ALJ must first follow the above five-step
approach, “without deductions for the assumed effects of substance use disorders.” Brueggemann v.
Barnhart, 348 F.3d 689, 694 (8th Cir. 2003). If the ALJ finds that the claimant would be disabled
based on all of his limitations, including the effects of substance abuse disorders, then the ALJ must
conduct additional analysis. The Act provides that“[a]n individual shall not be considered disabled
for purposes of this subchapter 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). To determine whether alcoholism or drug addiction is a contributing
factor material to the determination of disability, the ALJ must “evaluate which of [the claimant’s]
current physical and mental limitations, upon which the [ALJ] based [the] current disability
determination, would remain if [the claimant] stopped using drugs or alcohol and then determine
whether any or all of [the claimant’s] remaining limitations would be disabling.” 20 C.F.R.
§ 416.935(b)(2). The claimant bears the burden of proving that alcoholism was not a contributing
factor material to the disability determination. Brueggemann, 348 F.3d at 693. However, “If the
ALJ is unable to determine whether substance use disorders are a contributing factor material to the
claimant’s otherwise-acknowledged disability, the claimant’s burden has been met and award of
benefits must follow.” Id.
THE ALJ’S DECISION
Applying the foregoing five-step analysis, the ALJ here found that Plaintiff has not engaged
in substantial gainful activity since the date of the application for benefits; and that Plaintiff had the
severe impairment(s) of cellulitis in leg with associated weakness, mood disorder, anxiety disorder,
substance abuse, and depression with psychotic features. (Tr. 699-700). The ALJ then found that
Plaintiff’s impairments, including substance use disorders, met sections 12.04 and 12.06 of 20
C.F.R. § 404, Subpart P, Appendix 1 (“the Listings”). (Tr. 700-01). However, the ALJ found that if
Plaintiff stopped the substance abuse, the remaining limitations (though severe) would not meet or
medically equally any of the impairments in the Listings. (Tr. 701). The ALJ found that if Plaintiff
stopped the substance use, he would have the RFC to perform sedentary work as defined in 20
C.F.R. § 416.967(a), but could only perform work that involves simple, routine, repetitive tasks in a
low stress environment defined as requiring only occasional decision-making and occasional
changes in work setting; could only have occasional interaction with supervisors and co-workers;
and would be limited to jobs where production quotas are only based on end of day work
measurements. (Tr. 702-03). The ALJ found that Plaintiff had no past relevant work. (Tr. 710).
However, relying on the testimony of a vocational expert, the ALJ found that if Plaintiff stopped
the substance use, there would be a significant number of jobs in the national economy that Plaintiff
could perform. (Tr. 711). The ALJ concluded that the substance use disorder was a contributing
factor material to the determination of disability, because Plaintiff would not be disabled if he
stopped the substance abuse, and that therefore Plaintiff was not disabled under the Act. (Tr. 712).
Plaintiff challenges the ALJ’s decision on two grounds: (1) that the ALJ’s finding that
substance abuse was a material factor to Plaintiff’s disability was not supported by substantial
evidence; and (2) that the ALJ’s finding regarding Plaintiff’s RFC is not supported by substantial
evidence because the ALJ disregarded the opinions of consultative examiner Dr. Soto.
A. Standard for Judicial Review
The decision of the Commissioner must be affirmed if it complies with the relevant legal
requirements and is supported by substantial evidence in the record as a whole. See 42 U.S.C.
§§ 405(g); 1383(c)(3); Richardson v. Perales, 402 U.S. 389, 401 (1971); Estes v. Barnhart, 275
F.3d 722, 724 (8th Cir. 2002); Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009). “Substantial
evidence ‘is less than a preponderance, but enough that a reasonable mind might accept as adequate
to support a conclusion.’” Renstrom v. Astrue, 680 F.3d 1057, 1063 (8th Cir. 2012) (quoting
Moore, 572 F.3d at 522). In determining whether substantial evidence supports the Commissioner’s
decision, the court considers both evidence that supports that decision and evidence that detracts
from that decision. Id. However, the court “‘do[es] not reweigh the evidence presented to the ALJ,
and [it] defer[s] to the ALJ’s determinations regarding the credibility of testimony, as long as those
determinations are supported by good reasons and substantial evidence.’” Id. at 1064 (quoting
Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006)). “‘If, after reviewing the record, the court
finds it is possible to draw two inconsistent positions from the evidence and one of those positions
represents the ALJ’s findings, the court must affirm the ALJ’s decision.’” Partee v. Astrue, 638
F.3d 860, 863 (8th Cir. 2011) (quoting Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)). The
court “will not disturb the denial of benefits so long as the ALJ’s decision falls within the available
zone of choice.” Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011) (quotation marks omitted).
“An ALJ’s decision is not outside the zone of choice simply because [the reviewing court] might
have reached a different conclusion had we been the initial finder of fact.” Id.
B. The ALJ’s Finding that Substance Abuse Was a Factor Material to
Plaintiff’s Disability Is Supported by Substantial Evidence
Plaintiff’s first argument is that the ALJ’s finding that substance abuse was a factor material
to Plaintiff’s disability is not supported by substantial evidence. This requires an assessment of
whether substantial evidence supports the ALJ’s finding that the limitations that would remain if
Plaintiff stopped using drugs and alcohol would not be disabling.
In her decision, the ALJ found that Plaintiff’s impairments, including the effect of his
substance use disorders, met sections 12.04 and 12.06 of the Listings. Id. at 700. She noted that
when Plaintiff is using alcohol and marijuana, he hears voices nearly constantly; he becomes
exceedingly paranoid; he is frequently hospitalized; he has significant problems with concentration
and focus, and his symptoms are debilitating. (Tr. 700). However, the ALJ found that if Plaintiff
stopped using alcohol and marijuana, his remaining impairments (though severe) would not meet or
equal any listed impairment and would leave Plaintiff with the RFC to perform work involving
simple, routine, repetitive tasks in a low stress environment (defined as requiring only occasional
decision-making and occasional changes in work setting); requiring only occasional interaction
with supervisors and coworkers; involving no interaction with the public; and involving jobs where
production quotas are only based on end-of-day work measurements. (Tr. 701-03).
After reviewing the record, the Court finds that that there is substantial evidence in the
record to support the ALJ’s finding that substance abuse was a factor material to Plaintiff’s
disability. As the ALJ acknowledged, Plaintiff’s impairments caused him significant mental
symptoms throughout the relevant period, including periods when he was apparently not drinking
or using drugs excessively. (Tr. 701-10). However, as the ALJ also found, Plaintiff’s most severe
symptoms—the need for frequent hospitalization, the nearly constant hearing of voices, and the
excessive paranoia—were associated with alcohol and/or drug use, whereas Plaintiff’s symptoms
were significantly improved during a period of sustained sobriety. 2 (Tr. 704-07).
In August 2008, Plaintiff was hospitalized for several days for having anger outbursts,
voicing suicidal thoughts, and hearing voices. (Tr. 363). It was noted that he used alcohol and illicit
drugs routinely, and he was diagnosed with “polysubstance abuse, psychotic disorder not otherwise
specified versus substance induced psychotic disorder, and mood disorder not otherwise specified
versus substance induced mood disorder.” (Tr. 366, 372, 379, 384).
In April 2011, Plaintiff reported that he was drinking seventeen or more beers a night and
indicated that he did not take his medication when he was drinking. (Tr. 1053-54). In July 2011,
Plaintiff went to the emergency room and reported that the Italian Mafia had attacked him and was
after him. (Tr. 1148). The doctor noted that he was delusional, nervous, and anxious, with a labile
and inappropriate affect, tangential speech, impaired cognition, impulsivity, and inappropriate
judgment. (Tr. 1149, 1151). He was transferred to another hospital, where he reported that he had
gone on an alcohol binge the day before. (Tr. 1064-65, 1154). He stated that every time he drinks
he becomes paranoid. (Tr. 1068). He also stated that he hears vague auditory hallucinations “only
when drinking and in his house.” (Tr. 1070). At the same hospital visit, Plaintiff’s mother reported
that during periods of increased drinking, Plaintiff had increased irritability, paranoid ideas, and
vague auditory hallucinations. (Tr. 1070-71). She stated that he was stable during a two-year period
of sobriety. (Tr. 1071). Plaintiff was diagnosed with “psychosis—alcoholic.” (Tr. 1073, 1075). His
It is somewhat difficult to discern from the record precisely when Plaintiff was and was not
drinking, because not all records address the issue and because his reports regarding his drinking
are often contradictory. For example, in April 2010, he reported having been sober for three years.
(Tr. 571). However, the record shows that nineteen months earlier, in August 2008, Plaintiff had
reported using drugs and alcohol routinely and notes indicate that he might have substance-induced
psychotic disorder. (Tr. 366, 384). Plaintiff also reported to his treating physician in June 2011 that
he had not used alcohol since his last visit on April 1, 2011, despite the fact that the record indicates
that Plaintiff reported to others that he was drinking heavily during that period. (Tr. 1053-54).
Although the Court has reviewed the record as a whole, its discussion is focused on those periods
where Plaintiff’s substance use or lack of substance use is fairly clear.
discharge instructions state, “You should stop drinking alcohol. This is contributing to your
paranoia.” (Tr. 1075).
In September 2011, Plaintiff was taken to the emergency room for “emotional disturbance.”
(Tr. 1185). He indicated that he had drunk at least a 12-pack of beer and had assaulted his father-inlaw. (Tr. 1193). He described binge drinking with frequent adverse social effects. (Tr. 1185). He
was diagnosed with depression and alcohol abuse. (Tr. 1184-85).
A period of documented sobriety followed between October 2011 and April 2012. During
that time, Plaintiff’s symptoms were significantly improved, with anxiety and mood swings but no
extreme paranoia, hallucinations, or hospitalizations. (Tr. 707). On October 18, 2011, Plaintiff
reported having been sober for six weeks. (Tr. 1242). He was anxious and reported that he
sometimes got crabby, but his mental status examination was otherwise normal, with good eye
contact, a cooperative attitude, good grooming, appropriate and cooperative behavior, spontaneous
and coherent speech, an ok mood, logical thoughts, no suicidal ideations, no hallucinations, and
good insight and judgment. (Tr. 1244). On November 18, 2011, Plaintiff reported that he had been
sober since September. Aside from anxiety and mood swings, his mental status examination was
normal. (Tr. 1242). On January 13, 2012, Plaintiff reported continuing to be sober, reported
stopping Celexa because of physical side effects, reported more anxiety, and reported having good
and bad days. Aside from anxiety and a “not good” mood, his mental status examination was
otherwise normal. (Tr. 1240). On February 24, 2012, Plaintiff reported still having anxiety and
mood swings, but said they were not bad. Aside from an anxious affect, his mental status
examination was normal. (Tr. 1235). In April 2012, Plaintiff reported being sober. (Tr. 1300). He
reported sleep problems, but aside from an anxious affect, his mental status examination was
normal. (Tr. 1295). He was assigned a Global Assessment of Functioning score of 55, suggesting
moderate symptoms. 3 (Tr. 1300).
On June 11, 2012, Plaintiff was hospitalized after stabbing himself in the thigh. (Tr. 1313).
He reported hearing voices saying bad things about him, felt the neighbors were messing with him,
and had crying spells, decreased sleep, and other symptoms. (Tr. 1313-14). By that time, Plaintiff
was drinking again (though he indicated that it was not “too much”) and was smoking marijuana.
On February 14, 2013, Plaintiff was again admitted to the hospital due to hearing voices
that were talking about him. (Tr. 1338). The record is conflicting regarding his drinking and drug
use at this time. At the hospital visit, Plaintiff denied substance abuse and said his last drink was
“two 12-ounce cans of beer a while ago.” (Tr. 1344). However, records from January 9, 2013, and
February 10, 2013 hospital visits for chest and abdominal pain indicate ongoing alcohol use. (Tr.
1371, 1380). In addition, on March 1, 2013, Plaintiff’s treating psychiatrist’s diagnoses included
alcohol abuse. (Tr. 1427).
In light of the above records showing that Plaintiff’s most severe symptoms, including those
requiring hospitalization, tended to occur during periods of significant alcohol consumption; the
records from a period of sobriety showing much more limited symptoms; the statements from some
of Plaintiff’s treatment providers that Plaintiff’s conditions were induced or worsened by his
substance use; Plaintiff’s own reports that drinking caused him to become more paranoid and
The Global Assessment of Functioning (“GAF”) scale is a psychological assessment tool wherein
an examiner is to “[c]onsider psychological, social, and occupational functioning on a hypothetical
continuum of mental health-illness”; it does “not include impairment in functioning due to physical
(or environmental) limitations.” Diagnostic and Statistical Manual of Mental Disorders (DSM-IV),
32 (4th ed. 1994). A GAF score of 51-60 indicates “[m]oderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or
school functioning (e.g., few friends, conflicts with peers or co-workers).” Id.
caused him not to take his medications; and Plaintiff’s mother’s report that Plaintiff’s symptoms
increased when he was drinking and were stable when he was sober; the Court finds that Plaintiff’s
medical treatment records contain support for the ALJ’s finding that substance abuse was a material
factor in Plaintiff’s disability. That finding is also supported by the expert testimony of consulting
clinical psychologist James Reid, who opined that although Plaintiff met or equaled the listed
impairments for depressive syndrome and anxiety disorders when he was drinking and using drugs,
he would not meet or equal any listing if he were clean and sober. (Tr. 744). Dr. Reid further
opined that without substance abuse, Plaintiff would be limited to simple, routine, repetitive tasks
with only limited interaction with the public, co-workers, and supervisors; and would have
moderate limitations in the ability to deal with changes in workplace routine. (Tr. 745-46). The ALJ
reasonably considered this evidence along with the medical record as a whole. See Casey v. Astrue,
503 F.3d 687, 694-95 (8th Cir. 2007) (“The ALJ did not err in considering the opinion of [the state
agency medical consultant] along with the medical evidence as a whole.”).
The Court acknowledges that Plaintiff continued to have significant symptoms even when it
does not appear that he was drinking, including anxiety, depression, and sometimes hearing voices.
However, as discussed below, the record contains substantial evidence to support the ALJ’s finding
that those symptoms were consistent with the RFC the ALJ identified. For all of the above reasons,
the ALJ’s determination that Plaintiff’s substance abuse was a factor material to his disability fell
within the “zone of choice” and must be affirmed by this court.
C. The RFC Is Supported by Substantial Evidence
Plaintiff’s second argument is that the ALJ’s finding regarding Plaintiff’s RFC is not
supported by substantial evidence. The only argument Plaintiff offers is that in arriving at the RFC,
the ALJ should have given consultative examiner Dr. Soto’s opinion more weight under the factors
enumerated in 20 C.F.R. § 416.927(c).
The Court finds that substantial evidence in the record supports the ALJ’s assessment of Dr.
Soto’s opinion and the ALJ’s RFC finding. Because Dr. Soto did not treat Plaintiff, but only
performed a consultative examination, her opinion is not entitled to controlling weight. See Teague
v. Astrue, 638 F.3d 611, 615 (8th Cir. 2011) (“A single evaluation by a nontreating psychologist is
generally not entitled to controlling weight.”). However, the ALJ was still required to consider this
opinion in light of a number of other factors, including whether the source has examined the
claimant, the relevant evidence provided in support of the opinion, the consistency of the opinion
with the record as a whole, whether the opinion is related to the source’s area of specialty, and other
factors. 20 C.F.R. § 416.927(c).
The ALJ gave Dr. Soto’s opinion “little evidentiary weight” because she found that
Plaintiff’s presentation at the examination with Dr. Soto was inconsistent with his presentation at
other examinations and with the contemporaneous findings of Plaintiff’s treating psychiatrist. (Tr.
709-10). That finding was reasonable in light of the record. For example, Dr. Soto described
Plaintiff as having slow movement and production of speech, voices that interfered with his
answers, speech that was soft, slow, hesitant, and monotonous; a mood that was despairing,
anxious, depressed, and futile; auditory and visual hallucinations; a flow of thought that was
fragmented and hallmarked by slowness in thought processing; and thought content revealing a
persecutory trend. (Tr. 665). However, Plaintiff’s contemporaneous reports to his treating
psychiatrist do not show such symptoms. On September 10, 2010, approximately three weeks
before the consultative examination, Plaintiff reported to his treating psychiatrist “not hearing
voices” and having “no paranoia,” just some anxiety. His speech was spontaneous, his mood was
ok, his thought process was logical, he did not have hallucinations, and he was feeling better since
increasing his Celexa dosage. (Tr. 639). Similarly, as the ALJ noted, on October 8, 2010, a week
after the consultative examination, Plaintiff reported having “no psychosis” and indicated that his
anxiety was “still there but it is much better.” His speech was spontaneous and coherent, his
thought process was logical, and he had no hallucinations. (Tr. 637). Although Plaintiff did report
hallucinations and/or paranoia at some other visits to his psychiatrist in 2010, those occasions
corresponded with times when Plaintiff had stopped taking his medications. (Tr. 635, 641). The
ALJ also noted that Plaintiff performed significantly worse on cognitive function tests for Dr. Soto
than he did on similar tests for Dr. Long, eight months earlier. (Tr. 538, 600, 709-10). The ALJ
reasonably found that these inconsistencies suggested some exaggeration in symptoms during Dr.
Soto’s examination and warranted giving her opinion less weight. (Tr. 710). See Travis v. Astrue,
477 F.3d 1037, 1041 (8th Cir. 2007) (“If the doctor’s opinion is inconsistent with or contrary to the
medical evidence as a whole, the ALJ can accord it less weight.”) (citations and quotation marks
Although the ALJ gave little weight to Dr. Soto’s opinion, the ALJ’s RFC finding is
supported by other evidence in the record, including the opinions of a second consultative examiner
and the opinions of several non-examining medical consultants. The ALJ gave significant weight to
the opinion of Dr. Reid, who had the opportunity to review the entire medical record in 2013 and
who found that (absent substance abuse), Plaintiff could perform simple, routine, and repetitive
tasks with only limited interaction with the public, co-workers, and supervisors and limited changes
in workplace routine. (Tr. 708-09, 746). The ALJ also gave significant weight to the opinion of
consultative examiner Dr. Joseph M. Long, Ph.D., who examined Plaintiff a few months before Dr.
Soto did and who found that Plaintiff’s ability to understand and remember instructions was only
mildly impaired, his ability to concentrate and persist with tasks was moderately impaired, and his
social and adaptive functioning was moderately impaired. (Tr. 540, 709). The ALJ also gave
significant weight to the opinions of the state agency medical consultants (Aine Kresheck and
Robert Cottone), who opined that Plaintiff could understand, remember, carry out, and persist at
simple tasks but needed to avoid work involving intense or extensive personal interaction, handling
complaints or dissatisfied customers, close proximity to coworkers, close proximity to available
controlled substances, multi-step instructions, multi-tasking activities, and public contact. (Tr. 541,
709, 1292). In the RFC, the ALJ accounted for the limitations found by these experts by limiting
Plaintiff to simple, routine, repetitive tasks in a low-stress environment, to only occasional
interactions with supervisors and coworkers, to no interaction with the public. (Tr. 702-03).
For all of the above reasons, the Court finds that the ALJ’s assessment of Dr. Soto’s opinion
and the other opinions in the record was reasonable, and that her RFC finding was supported by
substantial evidence. The Court acknowledges that this case contains a great deal of medical
opinion evidence and other evidence, much of it conflicting. However, “it is the ALJ’s function to
resolve conflicts among the opinions of various treating and examining physicians.” Renstrom v.
Astrue, 680 F.3d 1057, 1065 (8th Cir. 2012) (quoting Pearsall v. Massanari, 274 F.3d 1211, 1219
(8th Cir. 2001)). Her decision fell within the “zone of choice,” and the Court cannot disturb that
decision merely because a different conclusion could have been reached. See Buckner, 646 F.3d at
For all of the foregoing reasons, the Court finds the ALJ’s decision is supported by
substantial evidence. Accordingly,
IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the decision of the
Commissioner of Social Security is AFFIRMED.
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 19th day of September, 2016.
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