Boyd v. Colvin

Filing 23

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the relief requested in Plaintiffs Complaint and Brief in Support of Complaint is DENIED. [Docs. 1 , 13 .] IT IS FURTHER ORDERED that the Court will enter a judgment in favor of the Commissioner affirming the decision of the administrative law judge. Signed by Magistrate Judge Nannette A. Baker on 6/14/16. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CHRISTOPHER BOYD,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No. 4:15-CV-823 NAB

MEMORANDUM AND ORDER
The following opinion is intended to be the opinion of the Court judicially reviewing the
denial of Christopher Boyd’s application for a period of disability and disability insurance and
supplemental security income benefits under the Social Security Act. The Court has jurisdiction
over the subject matter of this action under 42 U.S.C. § 405(g). The parties have consented to
the exercise of authority by the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
[Doc. 8.] The Court has reviewed the parties’ briefs and the entire administrative record,
including the hearing transcripts and the medical evidence. The Court heard oral argument in
this matter on June 14, 2016. Based on the following, the Court will affirm the Commissioner’s
decision.
I.

Issues for Review
Boyd presents two issues for review. First, he asserts that the administrative law judge

(ALJ) failed to account for his moderate limitations in concentration, persistence, and pace in the
residual functional capacity (RFC) determination. Second, he asserts that the RFC determination

is not supported by some medical evidence. The Commissioner contends that the that the ALJ’s
decision is supported by substantial evidence in the record as a whole and should be affirmed.
II.

Standard of Review
The Social Security Act defines disability as an “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), 423(d)(1)(A).
The SSA uses a five-step analysis to determine whether a claimant seeking disability
benefits is in fact disabled. 20 C.F.R. §§ 404.1520(a)(1), 416.920(a)(1). First, the claimant must
not be engaged in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
Second, the claimant must establish that he or she has an impairment or combination of
impairments that significantly limits his or her ability to perform basic work activities and meets
the durational requirements of the Act.

20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

Third, the claimant must establish that his or her impairment meets or equals an impairment
listed in the appendix to the applicable regulations.

20 C.F.R. §§ 404.1520(a)(4)(iii),

416.920(a)(4)(iii). If the claimant’s impairments do not meet or equal a listed impairment, the
SSA determines the claimant’s RFC to perform past relevant work. 20 C.F.R. §§ 404.1520(e),
416.920(e).
Fourth, the claimant must establish that the impairment prevents him or her from doing
past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant meets
this burden, the analysis proceeds to step five.

At step five, the burden shifts to the

Commissioner to establish that the claimant maintains the RFC to perform a significant number
of jobs in the national economy. Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000). If the

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claimant satisfies all of the criteria under the five-step evaluation, the ALJ will find the claimant
to be disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
The standard of review is narrow. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.
2001). This Court reviews decisions of the ALJ to determine whether the decision is supported
by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). Substantial evidence is
less than a preponderance, but enough that a reasonable mind would find adequate support for
the ALJ’s decision. Smith v. Shalala, 31 F.3d 715, 717 (8th Cir. 1994). The court determines
whether evidence is substantial by considering evidence that detracts from the Commissioner’s
decision as well as evidence that supports it. Cox v. Barnhart, 471 F.3d 902, 906 (8th Cir. 2006).
The Court may not reverse just because substantial evidence exists that would support a
contrary outcome or because the Court would have decided the case differently. Id. If, after
reviewing the record as a whole, the Court finds it possible to draw two inconsistent positions
from the evidence and one of those positions represents the Commissioner’s finding, the
Commissioner’s decision must be affirmed. Masterson v. Barnhart, 363 F.3d 731, 736 (8th Cir.
2004). To determine whether the ALJ’s final decision is supported by substantial evidence, the
Court is required to review the administrative record as a whole to consider:
(1) The 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
physician;
(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;

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(6) The testimony of vocational experts based upon prior
hypothetical questions which fairly set forth the claimant’s
physical impairment; and
(7) The testimony of consulting physicians.

Brand v. Sec’y of Dept. of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).
III.

Discussion
A.

Boyd’s Mental Health Treatment

Because Boyd’s appeal focuses on the ALJ’s findings regarding his mental health
impairments and treatment, the Court will provide a summary of Boyd’s mental health treatment.
1.

Dr. Stephen Scher- State Agency Psychologist

Dr. Stephen Scher, a state agency psychologist, reviewed Boyd’s mental health records
before January 3, 2011. (Tr. 621-32.) Dr. Scher opined that Boyd’s impairments of depression
and generalized anxiety were not severe impairments. (Tr. 621, 624-25.) Dr. Scher found that
Boyd had mild limitations in activities of daily living, maintaining social functioning, and
maintaining concentration, persistence, or pace. (Tr. 629.) He found Boyd’s allegations to be
partially credible. (Tr. 631.)
2.

Midwest Psychological Group-Eric Ikemeier, LPC

Licensed professional counselor Eric Ikemeier first evaluated Boyd during a diagnostic
clinical interview on July 20, 2011. (Tr. 654-57.) At that time, Boyd reported that he felt
depressed with anxiety, helpless, and hopeless; experienced racing thoughts, sadness, and
disorientation; and lacked sleep. (Tr. 655.) Ikemeier diagnosed Boyd with major depressive
disorder and assigned him a global assessment functioning (GAF) 1 score of 41. (Tr. 657.)

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Global Assessment Functioning score is a “clinician’s judgment of the individual’s overall level of functioning.
Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. Text Rev. 2000) (DSM-IV-TR).

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Treatment records indicate that Boyd visited Ikemeier for treatment on average every
week or two weeks between July 2011 and October 2013. (Tr. 647-654, 798-832.) Ikemeier
described Boyd’s prognosis as “guarded.” (Tr. 647-654, 798-832.) Ikemeier initially diagnosed
Boyd with major depressive disorder, recurrent, moderate. (Tr. 647- 651, 653-55, 826, 832.)
Ikemeier eventually diagnosed Boyd with major depressive disorder, recurrent, severe and
bipolar disorder. (Tr. 798-820.) Boyd was noted to have mood swings and isolation from others
throughout the time period of his treatment. (Tr. 647-654, 798-832.) Boyd reported symptoms
of inability to focus.

(Tr. 648-49, 651, 827.)

Boyd was late for six out of forty-three

appointments. (Tr. 648, 802-803, 806, 812-13.) Boyd expressed suicidal ideation in July 2011.
(Tr. 653.) Boyd expressed homicidal and suicidal ideations in September 2011 and was sent to
the hospital. (Tr. 647.)
Ikemeier completed several evaluations and medical source statements regarding Boyd.
(Tr. 671-73, 675-76, 706-707, 786-88.) Ikemeier’s first opinion letter was co-authored with Dr.
Bethany O’Neill, a licensed psychologist on October 5, 2011. (Tr. 671-73.) The letter indicates
that Boyd’s performance on the mental status examination suggests that he was of average range
of intellectual function, had an adequate fund of knowledge, and showed an understanding of
abstract reasoning. (Tr. 673.) Testing indicated that he could distinguish essential and nonessential details. (Tr. 673.) Other testing showed problems with memory and multiplying and
dividing simple problems. (Tr. 673.) Boyd’s diagnosis was major depressive disorder recurrent
and his GAF score was 42. (Tr. 673.)
On November 4, 2011, Ikemeier completed a medical source statement where he found
that Boyd was not significantly limited in most categories. (Tr. 675-76.) Ikemeier opined that
Boyd was moderately limited in the ability to carry out detailed instructions; sustain an ordinary

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routine without special supervision, work in coordination with or proximity to others without
being distracted by them; ability to accept instructions and respond appropriately to criticism
from supervisors; and the ability to get along with co-workers or peers without distracting them
or exhibiting behavioral extremes. (Tr. 675-76.) Ikemeier opined that Boyd was markedly
limited in the ability to maintain attention and concentration for extended periods; make simple
work related decisions; and the ability to set realistic goals or make plan independently of others.
(Tr. 675-76.) Ikemeier indicated that Boyd was extremely limited in the ability to perform
activities within a schedule, maintain regular attendance, and be punctual within customary
norms and complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an unreasonable
number and length of rest periods. (Tr. 675-76.)
Ikemeier completed a second medical source statement on March 3, 2012. (Tr. 706-707.)
In the March 2012 medical source statement, Ikemeier indicated that Boyd was extremely
limited in the ability to set realistic goals or make plans independently of others and markedly
limited in the ability to maintain attention and concentration for extended periods. (Tr. 706-707.)
Ikemeier opined that Boyd was moderately limited in most of the other work related categories
including understanding and memory, sustained concentration and persistence, social interaction,
and adaptability. (Tr. 706-707.)
On November 7, 2013, Ikemeier and Dr. O’Neill, authored a second letter regarding
Boyd. (Tr. 786.) In their letter, the providers state that Boyd was initially diagnosed with major
depressive disorder and generalized anxiety disorder, but therapy revealed greater psychological
problems and his diagnosis was changed to Bipolar II, panic disorder with agoraphobia, social
phobia, and post-traumatic stress disorder (PTSD). (Tr. 786.) They also indicate that while

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Boyd is being medicated, his medications offers limited relief and he remains in pain, is easily
confused, and angered, is unable to leave home, and sits alone in his room all day. (Tr. 786.)
They opined that his conditions were “severe” and “debilitating.” (Tr. 786.) They assessed his
GAF score as 33.
On November 7, 2013, Ikemeier completed a third medical source statement. (Tr. 78788.) In the medical source statement, Ikemeier opined that Boyd was moderately limited in the
ability to remember locations and work-like procedures; understand, remember, and carry out
simple instructions; sustain an ordinary routine without special supervision, maintain socially
appropriate behavior and adhere to basic standards of neatness and cleanliness; and the ability to
travel to unfamiliar places. (Tr. 787-88.) He found that Boyd was markedly limited in the
ability to perform activities within a schedule, maintain regular attendance, and be punctual
within customary tolerances; complete a normal workday and workweek without interruption
from psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods; accept instructions and respond appropriately to
criticism from supervisors; and the ability to get along with coworkers or peers without
distracting them or exhibiting behavioral extremes. (Tr. 787-88.) Ikemeier opined that Boyd
was extremely limited in the ability to understand, remember, and carry out detailed instructions;
maintain attention and concentration for extended periods; work in coordination or proximity to
others without being distracted by them; ability to make simple work related decisions; ability to
respond appropriately to changes in the work setting; ability to be aware of normal hazards and
to take appropriate precautions; and ability to set realistic goals or make plans independently of
others. (Tr. 787-88.)

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3.

Dr. Thomas Spencer- Consultative Psychologist

On May 2, 2013, Dr. Thomas Spencer completed a consultative examination of Boyd.
(Tr. 752-56.) The mental status examination indicated that Boyd’s speech was within normal
limits, his mood was anxious, and his affect was restricted. (Tr. 754.) Boyd denied homicidal or
suicidal ideations. (Tr. 754.) Boyd’s flow of thought was intact and relevant and he did not
appear to have any hallucinations or delusions. (Tr. 754.) Boyd was oriented to person, time,
place, and event. (Tr. 754.) Boyd’s insight and judgment seemed intact. (Tr. 754.) Dr. Spencer
diagnosed Boyd with PTSD, depressive disorder not otherwise specified, and alcohol
dependence in remission. (Tr. 756.) Dr. Spencer found that Boyd’s GAF score was 50-55. (Tr.
756.) He opined that Boyd had a mental illness, one which interferes with his ability to engage
in employment suitable for his age, training, experience, and/or education. (Tr. 756.) Dr.
Spencer opined that with continued sobriety, as well as appropriate treatment and compliance,
Boyd’s prognosis would improve. (Tr. 756.)
4.

Nurse Practitioner Jimmy Bell

Boyd visited nurse practitioner Jimmy Bell in 2013. (Tr. 768-781.) Boyd came to Bell to
have disability paperwork completed. (Tr. 778, 768.) At his visit in June 2013, Boyd’s mental
status was normal and his affect was pleasant. (Tr. 780.) Bell advised Boyd that “he needs to be
doing everything in his power to increase his chances of being on disability and I don’t think
smoking up to 2 packs of cigarettes a day is helping our cause.” (Tr. 780.) During his August
2013 visit, Boyd complained of increased anxiety, lumbar pain, and “sciatica pain.” (Tr. 773.)
Bell noted that Boyd’s mental status was grossly normal, but his affect was anxious. (Tr. 775.)
Bell diagnosed Boyd with anxiety not otherwise specified and altered mental status. (Tr. 775.)

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On October 1, 2013, Boyd had an appointment to fill out paperwork from his lawyer’s firm. (Tr.
768.) Boyd reported increased problems with memory loss and ongoing joint pain. (Tr. 769.)
Boyd also complained of a panic and anxiety disorder. (Tr. 770.) Bell noted that Boyd’s mental
status was grossly normal and his affect was pleasant. (Tr. 771.) Bell diagnosed Boyd with
anxiety not otherwise specified, depressive disorder, mild cognitive impairment, and altered
mental status. (Tr. 771.)
On November 7, 2013, Bell and Dr. Donald James (listed as a collaborator), completed a
mental medical source statement regarding Boyd. (Tr. 790-91.) The statement indicates that
Boyd is extremely limited in the ability to set realistic goals or make plans independently of
others. (Tr. 790.) They opined that Boyd was markedly or moderately limited in several areas of
understanding, memory, sustained concentration and persistence, social interaction, and
adaptability. (Tr. 790-91.)
B.

RFC Determination

Boyd contends that the RFC is not supported by substantial evidence, because the ALJ
did not account for Boyd’s moderate limitations in concentration, persistence, or pace and the
RFC is not based on some medical evidence. The RFC is defined as what the claimant can do
despite his or her limitations, and includes an assessment of physical abilities and mental
impairments.

20 C.F.R. §§ 404.1545(a), 416.945(a).

The RFC is a function-by-function

assessment of an individual’s ability to do work related activities on a regular and continuing
basis. 2 SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996). It is the ALJ’s responsibility to
determine the claimant’s RFC based on all relevant evidence, including medical records,
observations of treating physicians and the claimant’s own descriptions of his limitations.

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A “regular and continuing basis” means 8 hours a day, for 5 days a week, or an equivalent work schedule. SSR
96-8p, 1996 WL 374184, at *1.

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Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). An RFC determination made by an
ALJ will be upheld if it is supported by substantial evidence in the record. See Cox v. Barnhart,
471 F.3d 902, 907 (8th Cir. 2006). “[T]he ALJ is not qualified to give a medical opinion but
may rely on medical evidence in the record.” Wilcockson v. Astrue, 540 F.3d 878, 881 (8th Cir.
2008).

In making a disability determination, the ALJ shall “always consider the medical

opinions in the case record together with the rest of the relevant evidence in the record.” 20
C.F.R. §§ 404.1527(b), 416.927(b); see also Heino v. Astrue, 578 F.3d 873, 879 (8th Cir. 2009).
In this case, the ALJ found that Boyd had the RFC to perform sedentary work with the
following limitations: (1) occasional climbing of ramps and stairs; (2) never climbing ladders
and scaffolds; (3) no exposure to hazards such as unprotected heights and moving mechanical
parts, (4) occasional reaching with the non-dominant arm; (5) and limited to simple, routine work
consistent with “unskilled” work.

(Tr. 37.)

Boyd contends that this limitation does not

adequately account for his moderate limitations in concentration, persistence, or pace. The
Commissioner contends that although the ALJ found at step three that the claimant had moderate
difficulties in concentration, persistence or pace, the analysis at step three is different from the
RFC analysis at step four, which takes into account credibility findings and other parts of the
record.
“[E]ach step in the disability determination entails a separate analysis and legal
standard.” LaCroix v. Barnhart, 465 F.3d 881, 888, n. 3 (8th Cir. 2006). The evaluation of
mental impairments at steps two and three of the disability analysis is not an RFC assessment,
but a determination of the severity of mental impairments. Morris v. Colvin, No. 4:12-CV-2129
HEA, 2014 WL 636355 at *4 (E.D. Mo. Feb. 18, 2014).

“The ALJ’s step-four RFC

determination requires a more detailed assessment” than the analysis at steps two and three. Id.

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Finally, moderate limitations in concentration persistence, or pace would not automatically
prevent Boyd from functioning in a competitive work environment. See e.g. Blackburn v.
Colvin, 761 F.3d 853, 859-860 (8th Cir. 2014) (ALJ found moderate impairments in maintaining
concentration, persistence, and pace and claimant found not disabled); Roberson v. Astrue, 481
F.3d 1020, 1024-1025 (8th Cir. 2007) (moderate limitation, as defined on the form itself, did not
prevent individual from functioning satisfactorily).
Therefore, the Court must decide in this case, if the ALJ’s analysis at step four in
determining Boyd’s RFC should have included limitations beyond simple, routine work
consistent with unskilled work. Boyd contends that the Eighth Circuit’s decision in Newton v.
Chater, is analogous to this case and requires a remand. In Newton, the Eighth Circuit reversed
the Commissioner’s decision, because in the hypothetical question to the vocational expert, the
ALJ did not include any deficiencies regarding concentration, persistence, or pace that resulted
in a complete failure to complete tasks in a timely manner. Newton v. Chater, 92 F.3d 688, 69495 (8th Cir. 1996). In that case, on cross-examination, the vocational expert stated that a
moderate deficiency in concentration and persistence would cause problems on an ongoing daily
basis at the identified jobs regardless of what the job required from a physical or skill standpoint.
Newton, 92 F.3d at 695. The Commissioner contends that in this case, Boyd’s attorney did not
inquire of the vocational expert about difficulties in employment regarding limitations in
concentration, persistence, or pace and there is no indication that the vocational expert would
testify that any of the jobs identified would be eliminated.
The Eighth Circuit has found that a hypotheticals regarding concentration, persistence, or
pace that included the limitations of “simple routine, repetitive work” and “simple, repetitive,
routine tasks” adequately captured claimants’ deficiencies in concentration, persistence, or pace.

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See Howard v. Massanari, 255 F.3d 577, 582 (8th Cir. 2001) (ALJ’s hypothetical concerning
someone who is capable of doing simple, routine tasks adequately captures claimant’s
deficiencies in concentration, persistence, or pace), Brachtel v. Apfel, 132 F.3d 417, 421 (8th Cir.
1997) (hypothetical that included the ability to do only simple routine tasks that do not require
close attention to detail or work at more than regular pace is enough to distinguish case from
Newton). Based on the record in this case and the foregoing case law, the Court finds that the
ALJ’s RFC determination adequately compensated for Boyd’s moderate limitations in
concentration, persistence, or pace.
Next, Boyd contends that the ALJ’s RFC determination was not supported by some
medical evidence. The Court disagrees. “A disability claimant has the burden to establish [his]
RFC.” Eichelberger, 390 F.3d 584, 591 (8th Cir. 2004) (citing Masterson v. Barnhart, 363 F.3d
731, 737 (8th Cir. 2004)). The ALJ “is not required to rely entirely on a particular physician’s
opinion or choose between the opinions of any of the claimant’s physicians. Martise v. Astrue,
641 F.3d 909, 927 (8th Cir. 2011). The RFC determination is based on all of the evidence in the
medical record, not any particular doctor’s treatment notes or medical opinion. Although Boyd
asserts that the ALJ’s rejection of the medical opinions of his treatment providers, nurse
practitioner Jimmy Bell and licensed professional counselor Eric Ikemeier, leaves the ALJ with
no medical evidence to support the RFC, this is not true. The ALJ takes into account all of the
evidence in the record including the claimant’s credibility and other medical evidence in the
record. Further, the ALJ was not required to give controlling weight to any of the medical
opinions offered. The ALJ did grant partial, some, or limited weight to Mr. Bell’s medical
source statement, Dr. Spencer’s consultative examination, and Dr. Scher’s opinion. (Tr. 43-45.)
The ALJ adequately noted the reasons that these opinions were not granted controlling or

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substantial weight. Therefore, the Court finds that the ALJ’s RFC determination was supported
by substantial evidence in the record as a whole.
IV.

Conclusion
The Court finds that substantial evidence supports the ALJ’s decision as a whole. As

noted earlier, the ALJ’s decision should be affirmed “if it is supported by substantial evidence,
which does not require a preponderance of the evidence but only ‘enough that a reasonable
person would find it adequate to support the decision,’ and the Commissioner applied the correct
legal standards.” Turpin v. Colvin, 750 F.3d 989, 992-93 (8th Cir. 2014) (internal citations
omitted). The Court cannot reverse merely because substantial evidence also exists that would
support a contrary outcome, or because the court would have decided the case differently. Id. A
review of the record as a whole demonstrates that Boyd has some restrictions in his functioning
and ability to perform work related activities, however, he did not carry his burden to prove a
more restrictive RFC determination. See Pearsall, 274 F.3d at 1217 (it is the claimant’s burden,
not the Social Security Commissioner’s burden, to prove the claimant’s RFC). Therefore, the
Commissioner’s decision will be affirmed.
Accordingly,
IT IS HEREBY ORDERED that the relief requested in Plaintiff’s Complaint and Brief
in Support of Complaint is DENIED. [Docs. 1, 13.]
IT IS FURTHER ORDERED that the Court will enter a judgment in favor of the
Commissioner affirming the decision of the administrative law judge.
Dated this 14th day of June, 2016.
/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
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