Hinderhan v. Colvin
MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that the final decision of the Commissioner denying Social Security benefits to Plaintiff is AFFIRMED. A separate judgment in accordance with this Memorandum and Order is entered this date. Signed by Magistrate Judge Patricia L. Cohen on 9/14/2016. (CBL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Case no. 4:15CV1010 PLC
MEMORANDUM AND ORDER
Christopher Hinderhan (“Plaintiff”) seeks review of the decision of the Social
Security Commissioner, Carolyn Colvin, denying his applications for Social Security
Income and Disability Insurance Benefits under the Social Security Act. The parties
consented to the exercise of authority by the United States Magistrate Judge pursuant to
28 U.S.C. § 636(c). (ECF No. 9). Because the Court finds that substantial evidence
supports the decision to deny benefits, the Court affirms the denial of Plaintiff’s
Background and Procedural History
In January 2012, Plaintiff filed applications for Social Security Income and
Disability Insurance Benefits.1 (Tr. 178-84, 187-94). The Social Security Administration
(SSA) denied Plaintiff’s claims, and he filed a timely request for a hearing before an
Plaintiff received Social Security benefits from February 1994 until May 2000, and from March
2001 until February 2003. (Tr. 233). The SSA denied Plaintiff’s applications for Social Security
benefits in 2002, 2005, 2010. (Tr. 231-32). After the denial of benefits in 2010, Plaintiff
requested a hearing by an ALJ, but he failed to appear at the hearing. (Tr. 60-63).
administrative law judge. (Tr. 88-89, 98-99). The SSA granted Plaintiff’s request for
review and conducted a hearing on September 6, 2013. (Tr. 35-59). In a decision dated
December 13, 2013, the ALJ found that Plaintiff “has not been under a disability, as
defined in the Social Security Act, from July 27, 2011, through the date of this decision.”
(Tr. 27). The SSA Appeals Council denied Plaintiff’s subsequent request for review of
the ALJ’s decision. (Tr. 1-3). Plaintiff has exhausted all administrative remedies, and
the ALJ’s decision stands as the Commissioner’s final decision. Sims v. Apfel, 530 U.S.
103, 106-07 (2000).
Evidence Before the ALJ
A. ALJ Hearing
Plaintiff appeared with counsel, via video conference, at the administrative hearing on
September 6, 2013. (Tr. 35). Plaintiff testified that he completed school through the eighth
grade and did not earn a GED. (Tr. 38). Since his most recent employment ended in July 2011,
Plaintiff had applied for two part-time dishwasher positions for which he was not hired. (Tr. 38).
In regard to his medical care, Plaintiff stated that he had begun treatment for his
depression, bipolar disorder, and anxiety at Pathways the previous month, and he had an
appointment to see a physical therapist in two weeks. (Tr. 39-40). Plaintiff explained that he
experienced frequent mood swings and angered easily. (Tr. 41-42). On his bad days, which
occurred about four days per week, he slept all day and, on better days, he loaded the dishwasher
and cleaned the house. (Tr. 42-43, 52). Plaintiff did not have any friends and did not attend
family gatherings. (Tr. 53). Plaintiff also watched movies and played “brain games” on the
computer, which are “kind of like chess.” (Tr. 53, 55). He was taking Seroquel and Prozac,
which helped with the depression, but “keep me pretty close to almost down. Like a zombie
almost[.]” (Tr. 43).
Plaintiff testified that his bipolar disorder manifested itself in anger and caused “difficulty
getting along with other people[.]” (Tr. 44). Plaintiff explained that his most recent job was as a
meat clerk at Kroger’s where his boss “mess[ed] with” and “antagonize[d]” him. (Tr. 44).
According to Plaintiff, two days after he and his boss had an argument about Plaintiff’s health
benefits, Plaintiff’s boss “told me that I had to start doing things differently and I had to clean
more and help [with] other people’s jobs.” (Tr. 45). Plaintiff felt that his boss was “picking on”
him, so he “told him it was unfair and he wasn’t going to treat me like crap.” (Id.). Shortly
thereafter, Plaintiff’s boss summoned him to a meeting with the assistant manager and union
representative, who were “just sitting there talking crap to me.” (Id.). Plaintiff stated that he
“started shaking and  turned red” and he “was ready to hurt [his boss].” (Tr. 46). Plaintiff told
his boss to get out of his way, threatened to “put his head through the glass door,” and stormed
out, slamming the door and breaking the glass. (Tr. 45-46). Plaintiff testified that he quit later
that day. (Tr. 46).
In regard to his anxiety, Plaintiff testified that he suffered anxiety attacks that felt “like
I’m having a heart attack.” (Tr. 47). “Negative drama” and “[i]nteracting with other people”
triggered the attacks. (Tr. 47). Plaintiff avoided crowds, shopping, and leaving the house. (Tr.
Plaintiff testified that he began experiencing back problems when he was eighteen years
old. (Tr. 48). In the last twelve years, the pain had intensified to the point that Plaintiff had
“gotten on my knees and cried…[a]nd like prayed to God…to make the pain go away[.]” (Tr.
49). Plaintiff stated that “it’s been that extreme for about 12 years now” and he “would wolf
down Ibuprofen and Aspirin, Motrin, Tylenol…like it’s candy just to take the pain away.” (Id.).
Plaintiff recently started taking Voltaren, which helped. (Tr. 50).
Additionally, Plaintiff stated that he suffered memory problems that prohibited him from
working. (Tr. 51). Plaintiff had an appointment to see a neurologist the following month. (Id.).
He explained, “I can’t tell you what I ate for dinner last night. . . . It’s like I have the memory of
an 80-year-old man with whatever that memory thing is called[.]”
caseworker at Pathways assisted him with keeping his appointments. (Id.).
Because the vocational expert, Susan Hullender, was not present at the hearing, the ALJ
issued her interrogatories. (Tr. 58). The ALJ asked Ms. Hullender to consider a hypothetical
individual with Plaintiff’s age (thirty-six years), education, and work history, and the residual
functional capacity (RFC) to perform work at all exertional levels “except is able to perform
work at up to General Education Development reasoning level of two in the OT.”2 (Tr. 320).
Ms. Hullender opined that such individual could perform all of Plaintiff’s past work, except that
of a cashier, which required interaction with the public. (Tr. 320-21). Ms. Hullender stated that
Plaintiff could also work as a racker, bottling line attendant, or egg washer. (Id.).
B. Relevant Medical Records
On December 11, 2011, the day after his wife left him for another man, Plaintiff
presented to the emergency room at Phelps County Regional Medical Center with suicidal
In the interrogatories, the ALJ explained that “work at up to General Education Development
reasoning level of two” requires
that the worker apply commonsense understanding to carry out detailed but
uninvolved written or oral instructions and deal with problems involving a few
concrete variables; is limited to occasional superficial, non-confrontational and
non-negotiation types of interaction with coworkers and supervisors; is limited
to work that does not involve team effort in decision making, development of
goals and priorities, building of a consensus, or negotiated outcomes; and
cannot work with the general public.
ideations. (Tr. 223-35). Doctors transferred Plaintiff to Jefferson Regional Medical Center,
where Plaintiff was admitted for treatment. (Tr. 342-55). On December 12, 2011, Dr. Ahmad
Ardekani completed a psychiatric evaluation for Plaintiff, noting that Plaintiff’s insight and
judgment were impaired, but his general knowledge and intellectual function were “okay.” (Tr.
342). Dr. Ardekani diagnosed Plaintiff with bipolar affective disorder, mixed; panic anxiety; and
possible dependent personality. (Tr. 343). Dr. Ardekani stated that Plaintiff required “some
medicine” and “extensive psychotherapy.” (Tr. 346). Dr. Ardekani observed on December 14,
2011 that Plaintiff’s mood had improved such that he was no longer suicidal, and the following
day, Plaintiff was “smiling, interacting.”
(Tr. 348, 349).
Nurses’ notes from Plaintiff’s
hospitalization state that, on December 13, 2011, Plaintiff was “interacting with peers and has
spent a great deal of time with one select female peer.” (Tr. 353). Dr. Ardekani assessed a GAF
score of 40,3 indicating serious symptoms, and discharged Plaintiff on December 16, 2011 with
prescriptions for Seroquel and Clonazepam. (Tr. 350).
A GAF score represents a clinician's judgment of an individual's overall ability to function in
social or occupational settings, not including impairments due to physical or environmental
limitations. Diagnostic & Statistical Manual of Mental Disorders (4th ed.) (DSM-IV) at 32.
GAF scores of 31-40 indicate some impairment in reality testing or communication or a major
impairment in social or occupational functioning; scores of 41-50 reflect a serious impairment in
these functional areas; scores of 51-60 indicate a moderate impairment; and scores of 61-70
indicate a mild impairment. Id.
The Court notes that DSM-V was released in 2013 and replaced the DSM-IV. The DSMV “no longer uses GAF scores to rate an individual's level of functioning because of ‘its
conceptual lack of clarity’ and ‘questionable psychometrics in routine practice.’” Alcott v.
Colvin, No. 4:13-CV-01074-NKL, 2014 WL 4660364, at *6 (W.D. Mo. Sept. 17, 2014) (citing
Rayford v. Shinseki, 2013 WL 3153981, at *1 n.2 (Vet. App. 2013) (quoting the DSM-V)).
However, because the DSM-IV “was in use when the medical entries were made and the [ALJ's]
decision was issued in this matter, the Global Assessment of Functioning scores remain relevant
for consideration in this appeal.” Rayford, 2013 WL 3153981, at * 1 n.2.
On January 17, 2012, Plaintiff went to Mercy St. John’s clinic and requested a refill on
his medications. (Tr. 361). Plaintiff received a refill and a referral to a psychiatrist at Pathways.
On April 12, 2012, Dr. Heather Derix, Psy.D., completed a consultative psychological
evaluation for Plaintiff at the request of the SSA. (Tr. 380-88). Plaintiff informed Dr. Derix that
he received Social Security as a child, but he lost coverage when he married at age twenty-three.
(Tr. 380). He stated that he received some special education and dropped out of school in tenth
grade. (Tr. 382-83). Plaintiff explained that he participated in individual and family therapy
when he “used to get social security” but “can’t afford therapy now.” (Tr. 383). He was
currently taking Citalopram, which “used to work” and Klonopin, which “works great.” (Id.).
Plaintiff informed Dr. Derix that he suffered pain related to “three broken discs in my
spine.” (Id.). He also had “titanium in [his] arm” because he shattered it when he “got mad and
flipped over a 2,000 pound soda machine.” (Id.). He explained that he had not “seen a doctor in
a good 20 something years,” and he did not take medications for physical problems. (Id.).
In regard to his employment history, Plaintiff explained that he had difficulty maintaining
employment because “I have a problem getting along with others, I don’t play nice, I like to do
things on my own. I don’t like someone to tell me what to do.” (Tr. 384). His daily routine
involved awaking at 7:00 or 8:00 a.m., taking his antidepressant, and going back to sleep until “1
or 3 or 4 if I’m tired.” (Tr. 385). Defendant reported that he did housework when his mother left
him a to-do list and stated, “I do like to keep the floors clean, and my laundry clean.” (Id.).
In her summation, Dr. Derix observed:
The claimant was able to understand and remember simple instructions; had no
difficulty with concentration and persistence on simple tasks; demonstrated
extreme impairment in his capacity to interact in limited contact situations with
the general public; demonstrated extreme impairments in his capacity to
interact in limited contact situations with supervisors and coworkers, is likely
to struggle with adapting to a simple environment (due to difficulties with
socialization and subsequent anxiety); was capable of managing funds
independently and appeared to be a generally reliable informant.
(Tr. 387). Dr. Derix diagnosed Plaintiff with: bipolar disorder I, most recent episode depressed;
panic disorder with agoraphobia; and nicotine dependence. (Tr. 386). She assessed a GAF score
of 40-45. (Id.).
On March 10, 2012, Plaintiff presented to the emergency room claiming that he “was at
the bar last night and then ‘woke up in the dirt at the courthouse’ ~ 3 a.m.” after he “was beat
up.” (Tr. 416-21). Plaintiff was intoxicated and complained of pain in his face and neck. (Tr.
On April 16, 2012, Dr. Deborah Doxsee, PhD, a state agency psychological consultant,
completed a psychiatric review technique based upon her review of Plaintiff’s records and adult
function report. (Tr. 65-74). Dr. Doxsee determined that Plaintiff suffered an affective disorder
and anxiety disorder, which caused moderate restrictions or difficulties in activities of daily
living, social functioning, and concentration, persistence, or pace. (Tr. 69). Dr. Doxsee also
noted “one or two” episodes of decompensation of extended duration. (Id.).
deemed Plaintiff’s reports of limitations “partially credible.” (Tr. 71).
Dr. Doxsee assessed Plaintiff’s mental RFC and found Plaintiff was either “not
significantly limited” or “moderately” limited in all four categories of limitations (i.e.,
understanding and memory, sustained concentration and persistence, social interaction, and
adaptation). (Tr. 71-73). Dr. Doxsee noted that Dr. Derix assessed more restrictive limitations,
but she believed that Dr. Derix “relie[d] heavily on the subjective reports of symptoms and
limitations provided by the individual” and “overestimate[d]…the severity of the individual’s
restrictions/limitation . . . .” (Tr. 73). Dr. Doxsee concluded that Plaintiff was “limited to
unskilled work because of the impairments” but was not disabled. (Tr. 74).
On April 24, 2012, Plaintiff attempted to establish care with and obtain a mental and
physical disability determination from Dr. Bohdan Lebedowicz. (Tr. 471-73). Dr. Lebedowicz
declined to complete Plaintiff’s disability papers and referred him to a psychiatrist. (Tr. 472).
When Dr. Lebedowicz asked Plaintiff “if he needs any help with his back pain,” Plaintiff “said
that he doesn’t and he does not want to have any medication for it.” (Id.).
On August 1, 2012, Plaintiff presented to the emergency room complaining of “mid and
lower back pain” and requesting medication. (Tr. 412). Dr. Earl Scott wrote that “[u]pon further
investigation,” he learned that Plaintiff had “received tramadol from his PCP for treatment of
chronic back pain.” (Tr. 415). Plaintiff admitted he received a prescription on July 10, stated
that he still had medication, and requested a referral for a new primary care provider. (Id.).
On August 8, 2012, Plaintiff saw a new primary care provider, Dr. Salim Shakhour.
(Tr.465-69). Plaintiff complained of “stabbing” lower back pain and rated his pain eight on a
ten-point scale. (Tr. 466). Plaintiff stated that he was currently taking Celexa and Clonazepam,
but he wished “to be tapered off” of Clonazepam because “he did not like the way it makes him
feel.” (Tr. 467). Finally, Plaintiff reported “bi-frontal pressure headaches involving his frontal
sinuses.” (Id.). Dr. Shakhour referred Plaintiff to a pain clinic, psychiatry clinic, and allergy
clinic; prescribed Klonopin, Celexa, Seroquel Xr, and Zyrtec (for chronic allergic sinusitis); and
ordered x-rays. (Tr. 468). X-rays of Plaintiff’s lumbar spine were “unremarkable.” (Tr. 471).
Plaintiff visited an allergist on August 28, 2012 who diagnosed rhinitis and prescribed an
inhaler. (Tr. 429-30). A pulmonary function report revealed mild restrictive ventilator defect.
(Tr. 432). Plaintiff returned on September 11, 2012, with shortness of breath and wheezing, and
on November 26, 2012, with severe sinus pressure. (Tr. 428-29).
The allergist diagnosed
Plaintiff with acute sinusitis, seasonal allergic rhinitis, asthma, and chronic obstructive
pulmonary disease (COPD). (Tr. 428). Plaintiff called the office on December 17, 2012 and
reported a continued sinus infection. (Id.).
On September 6, 2012, Plaintiff returned to Dr. Shakhour’s office for a follow-up
appointment regarding his back pain. (Tr. 461-64). Plaintiff complained that his back pain was
eight out of ten, and Dr. Shakhour prescribed Flexeril. (Tr. 463). On September 11, 2012,
Plaintiff underwent an MRI of his lumbar spine, which was “unremarkable.” (Tr. 435).
In October 2012, Plaintiff sought treatment for pain in his left ankle and right knee at the
Phelps County Medical Center. (Tr. 454-56). Dr. Keith Frederick diagnosed Plaintiff with
patellofemoral arthralgia, right knee and left ankle pain of uncertain etiology. (Tr. 455). X-rays
of Plaintiff’s knee and ankle were “unremarkable.”
Plaintiff declined a
prescription for an anti-inflammatory drug, so the orthopedist recommended Tylenol. (Tr. 456).
Plaintiff went to the emergency room on December 2, 2012, claiming he had been
assaulted outside of his home and complaining of injuries to his right hand, head, and face,
including a laceration on his chin that required three stitches. (Tr. 402-07). A nurse practitioner
also diagnosed Plaintiff with sinusitis and prescribed amoxicillin and a nasal spray. (Tr. 407).
When Plaintiff returned to Dr. Shakhour’s office for a follow-up appointment on
December 21, 2012, he complained of dizziness and pain in his right hand. (Tr. 449-53). An xray of Plaintiff’s hand revealed a fracture, and Dr. Shakhour referred Plaintiff to the orthopedic
surgery clinic and the neurology clinic. (Tr. 452). Dr. Shakhour continued the Flexeril for
Plaintiff’s back pain. (Id.).
On August 8, 2013, Plaintiff sought psychotherapy in an unscheduled appointment at
Pathways. (Tr. 483). In his pre-intake meeting with Gene Schaefer, CSS, Plaintiff appeared
anxious and reported that he had run out of medications.4 (Id.). Mr. Schaefer assessed Plaintiff
with a GAF of 44 and referred him to a Pathways social worker. (Id.).
Laura Sanchez, CSS, a social worker from Pathways, met with Plaintiff at his home on
August 15, 2013 to complete paperwork and build rapport. (Tr. 482). Plaintiff informed her that
he needed “help getting back on my medicine” and “getting along with society.” (Id.). Ms.
Sanchez returned to Plaintiff’s home on August 19, 2013 to discuss Plaintiff’s strengths and
goals for service. (Tr. 481). Plaintiff “presented a slightly depressed mood” and stated he felt
“worthless” and needed help “trusting people and being social.” (Id.).
On August 21, 2013, Ms. Sanchez accompanied Plaintiff to Pathways for his psychiatric
evaluation appointment with Dr. Sreekant Kodela. (Tr. 478-79). At that appointment, Plaintiff
reported some improvement with his past medications but described symptoms of depression,
posttraumatic stress disorder, obsessive compulsive disorder, hypomania, as well as auditory and
visual hallucinations. (Tr. 475-77). Plaintiff denied suicide attempts and cutting behavior. (Tr.
475). Dr. Kodela observed that Plaintiff appeared depressed and anxious, but was well-groomed,
maintained reasonable eye contact, and exhibited reasonable perception, attention, and judgment.
(Tr. 476). Dr. Kodela diagnosed Plaintiff with bipolar disorder II, assessed Plaintiff with a GAF
score of 50, and prescribed Seroquel and Prozac. (Tr. 477).
The following day, on August 22, 2013, Pathways social worker Erin Ellis, CSS arrived
at Plaintiff’s home to accompany him to his Healthcare Home program appointment at Pathways.
(Tr. 474). Plaintiff was sleeping when she arrived and explained that “a new medication,
Plaintiff informed Mr. Schaefer that he had been receiving psychiatric services from “Dr.
Baquero at the Center Clinic” and “discovered that [the doctor] had left the practice.” (Tr. 483).
A review of the record reveals no documentation of this treatment.
Seroquel,…made him very ‘drunk like feeling.’” (Id.). Plaintiff rescheduled the appointment for
the following week. (Id.).
On September 13, 2013, Plaintiff sought treatment for his chronic back pain from Dr.
Savita Thorat at a Mercy Family Medicine Clinic. (Tr. 488-89). Dr. Thorat prescribed Voltaren
and Zanaflex, referred Plaintiff to physical therapy and a pain clinic, and a scheduled a onemonth follow-up appointment. (Tr. 488).
Standards for Determining Disability Under the Act
Eligibility for disability benefits under the Act requires a claimant to demonstrate that he
or she suffers from a physical or mental disability. 42 U.S.C. § 423(a)(1). The Act defines
disability as “the inability to do 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 not less than 12 months.” 20 C.F.R.
§§ 404.1505(a), 416.905(a). 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 . . . .” 42 U.S.C. § 1382c(a)(3)(B).
To determine whether a claimant is disabled, the Commissioner engages in a five-step
evaluation process. See 20 C.F.R. §§ 404.1520, 416.920. Those steps require a claimant to
show that he or she:
(1) is not engaged in substantial gainful activity; (2) has a severe
impairment or combination of impairments which significantly limits his or her physical or
mental ability to do basic work activities or (3) has an impairment which meets or exceeds one of
the impairments listed in 20 C.F.R., Subpart P, Appendix 1; (4) is unable to return to his or her
past relevant work; and (5) the impairments prevent him or her from doing any other work. Id.
The ALJ’s Determination
The ALJ applied the five-step evaluation process set forth in 20 C.F.R. §§ 404.1520 and
416.920 and found that Plaintiff: (1) had not engaged in substantial gainful activity since July
27, 2011; (2) had the severe impairments of bipolar disorder, panic disorder with agoraphobia,
mild intermittent asthma, and obesity; (3) had the non-severe impairments of chronic rhinitis,
right middle finger fracture, status post right forearm fracture with surgery, and chronic back
pain; and (4) did not have an impairment or combination of impairments that met or medically
equaled the severity of the listed impairments in 20 C.F.R. § 404, Subpart P, Appendix 1. (Tr.
The ALJ found that Plaintiff’s mental impairments resulted in: mild restrictions on his
activities of daily living; moderate difficulties in social functioning; moderate difficulties with
regard to concentration, persistence, or pace; and no episodes of decompensation of extended
duration. (Tr. 18-19). The ALJ determined that Plaintiff had the RFC to perform a full range of
work at all exertional levels, with the following nonextertional limitations:
He is able to perform work at up to General Education Development reasoning
level of two in the Dictionary of Occupational Titles, which is defined as work
that requires that the worker apply commonsense understanding to carry out
detailed but uninvolved written or oral instructions and deal with problems
involving a few concrete variables. He is limited to occasional superficial,
non-confrontational and non-negotiation types of interactions with coworkers
and supervisors. The claimant is also limited to work that does not involve
team effort in decision making, development of goals and priorities, building
of a consensus, or negotiated outcomes. He cannot work with the general
(Tr. 19-20). The ALJ noted that Plaintiff, who was thirty-seven years of age, testified that he:
experienced mood swings and anxiety attacks; felt angry; had difficulty getting along with
others; and suffered approximately four bad days per week, during which he stayed on the couch
and slept all day. (Tr. 20). Although the ALJ found that Plaintiff’s “medically determinable
impairments could reasonably be expected to cause some of the alleged symptoms,” he believed
Plaintiff’s “statements concerning the intensity, persistence, and limiting effects of these
symptoms are not generally credible . . . .” (Tr. 20-21).
The ALJ explained that “inconsistencies in the record tended to diminish” Plaintiff’s
credibility. (Tr. 21). For example, Plaintiff testified that he suffered chronic, severe back pain
since he was a teenager, but there was little evidence that Plaintiff sought treatment for back pain
and the images revealed no abnormalities. (Id.). Plaintiff also testified that his medications
made him “[l]ike a zombie almost,” but his medical records did not reflect adverse side effects.
(Id.). In addition, Plaintiff alleged a history of mental impairments since childhood, but he
neither received treatment nor took medications for mental illness during his twelve-year
marriage, and he received no “regular and consistent” mental health treatment prior to August
2013. (Id.). Finally, the ALJ noted that various inconsistencies in Plaintiff’s reporting of his
own history (such as the extent of his education, reasons for his most recent termination, and use
of drugs and alcohol) decreased “the credibility of [Plaintiff]’s other testimony.” (Id.).
The ALJ reviewed Plaintiff’s medical records and determined that Plaintiff was “noncompliant with treatment recommendations” and that the clinical and objective findings in the
record were inconsistent with Plaintiff’s allegations of total debilitation. (Tr. 21-22). Nor did
the record “contain any opinions from treating physicians indicating that [Plaintiff] is disabled or
even has greater limitations than those determined in this decision.” (Tr. 24). The ALJ assigned
Dr. Derix’s opinion “partial weight,” because Dr. Derix met Plaintiff only once and her opinions
regarding Plaintiff’s social functioning and GAF scores were based on Plaintiff’s “subjective
reports of symptoms and limitations” and unsupported by the totality of the evidence. (Id.).
The ALJ also assigned “partial weight” to Dr. Doxsee’s medical opinion and the GAF
scores in the record, which the ALJ found “suggest. . . moderate limitations in functioning.”
(Id.). The ALJ noted that Plaintiff’s most recent GAF score of 50, assessed by Dr. Kodela in
August 2013, was “a borderline score[,] since 51 indicates moderate symptoms and limitations,”
and inconsistent with Dr. Kodela’s mental status exam, which “was essentially normal.” (Id.).
The ALJ also limited the weight given Plaintiff’s GAF scores because an accurate GAF score is
“dependent on the truthfulness of the claimant with each examiner” and “there are several
inconsistencies in [Plaintiff’s] reporting.” (Id.).
At step four of the five-step evaluation process, the ALJ determined that “[t]ransferability
of job skills is not an issue because [Plaintiff] does not have past relevant work.” (Tr. 26). In the
final step, the ALJ noted that Plaintiff’s “ability to perform work at all exertional levels has been
compromised by nonexertional limitations.”
The ALJ concluded:
[Plaintiff’s] age, education, work experience, and residual functional capacity, [Plaintiff] is
capable of making a successful adjustment to other work that exists in significant numbers in the
national economy.” (Tr. 27).
Standard for Judicial Review
The court must affirm the ALJ’s decision if it is supported by substantial evidence. 42
U.S.C. § 405(g). “Substantial evidence ‘is less than a preponderance, but enough so that a
reasonable mind might find it adequate to support the conclusion.’” Cruze v. Chater, 85 F.3d
1320, 1323 (8th Cir. 1996) (quotation omitted).
In determining whether the evidence is
substantial, the court considers evidence that both supports and detracts from the
Commissioner’s decision. Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009). 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 reason and substantial evidence.” Renstrue v. Astrue, 680 F.3d 1057, 1064
(8th Cir. 2012) (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 Eighth Circuit has repeatedly held that
a court should “defer heavily to the findings and conclusions” of the Social Security
Administration. Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010); Howard v. Massanari, 255
F.3d 577, 581 (8th Cir. 2001).
Plaintiff claims the ALJ erred in: (1) assigning only partial weight to the consultative
psychologist’s medical opinion; and (2) creating an RFC unsupported by substantial medical
The Commissioner counters that the ALJ properly assessed the consulting
psychologist’s medical opinion, discredited Plaintiff’s subjective complaints, and formulated an
RFC based upon substantial evidence of record.
1. Expert medical opinions
Plaintiff argues the ALJ erred in assigning only partial weight to the medical opinion of
the consultative examining psychologist, Dr. Derix. More specifically, Plaintiff contends that the
ALJ’s “reasons for discounting Dr. Derix’s opinion of [Plaintiff’s] disabling limitations are not
supported by substantial evidence.” In response, the Commissioner asserts that the ALJ properly
Plaintiff challenges the RFC only in regard to the ALJ’s assessment of his mental limitations.
Plaintiff does not contest the ALJ’s determination of the degree to which his physical
impairments affected his RFC.
evaluated the medical opinion and other evidence and substantial evidence of record supports the
In determining a claimant’s disability, the ALJ is required to consider the medical
opinion evidence of record together with the other relevant evidence. 20 C.F.R. §§ 404.1527(b),
416.927(b). Unless the ALJ assigns controlling weight to a treating physician’s opinion, the ALJ
must explain the weight given to every medical opinion of record, regardless of its source. See
20 C.F.R. §§ 404.1527(c), (e)(2)(ii); 416.927(c), (e)(2)(ii). When determining the appropriate
amount of weight to give a medical opinion from a non-treating source, the ALJ considers the
following factors: examining relationship, treatment relationship, supportability, consistency, and
Wiese v. Astrue, 552 F.3d 728, 731 (8th Cir. 2009) (citing 20 C.F.R. §
404.1527(d)). “The ALJ may reject the conclusions of any medical expert, whether hired by the
claimant or the government, if they are inconsistent with the record as a whole.” Wagner v.
Astrue, 499 F.3d 842, 848 (8th Cir. 2007) (quoting Pearsall v. Massanari, 274 F.3d 1211, 1219
(8th Cir. 2001)).
Dr. Derix interviewed Plaintiff on April 12, 2014. (Tr. 380). During the interview,
Plaintiff described his present mental health condition and discussed his family, educational,
psychiatric, medical, employment, and social histories. (Tr. 380-85). Based on this interview,
Dr. Derix completed a mental status examination, which stated that Plaintiff exhibited “flat
emotion and affect,” fair eye contact, normal speech, and questionable insight and judgment.
(Tr. 385). Dr. Derix found that Plaintiff “appeared to be a decent historian.” (Id.). In regard to
intellectual ability, Dr. Derix found that Plaintiff: appeared to be functioning in the average
range of intellectual ability; demonstrated adequate abstract processing; and displayed no
memory problems or receptive or expressive language deficits. (Id.). Dr. Derix diagnosed
Plaintiff with bipolar disorder and panic disorder with agoraphobia, and she assessed a GAF of
40-45. (Tr. 386).
In her recommendation, Dr. Derix wrote that Plaintiff “was able to understand and
remember simple instructions” and “had no difficulty with concentration and persistence on
simple tasks[.]” (Tr. 387). However, Dr. Derix stated that Plaintiff “demonstrated extreme
impairment” in his capacity to interact in limited contact situations with coworkers, supervisors
and the general public and would likely struggle with “adapting to a simple environment (due to
difficulties with socialization and subsequent anxiety)[.]” (Id.). Finally, Dr. Derix concluded
that Plaintiff “appeared to be a generally reliable informant.” (Id.).
The ALJ thoroughly reviewed Dr. Derix’s psychological evaluation and explained his
reasons for assigning her medical opinion “partial weight.” (Tr. 24-25). The ALJ noted that Dr.
Derix interviewed Plaintiff only once, “so this opinion is . . . based on a snapshot of [Plaintiff’s]
functioning . . . .” (Tr. 25). The ALJ rejected Dr. Derix’s opinions regarding social functioning
and Plaintiff’s GAF scores because they “appear to rely heavily on [Plaintiff’s] subjective reports
of symptoms and limitations.” The ALJ’s decision to discount Dr. Derix’s opinion to the extent
she relied upon Plaintiff’s reporting was reasonable given that the ALJ determined Plaintiff’s
statements regarding his symptoms and limitations were “not generally credible.” Plaintiff does
not challenge this credibility finding.
The ALJ also discredited Dr. Derix’s opinion regarding Plaintiff’s social functioning
because it was not consistent with “the totality of the evidence, including Dr. Derix’s mental
status examination of [Plaintiff] . . . .” (Tr. 24). For example, in her mental status examination,
Dr. Derix noted that Plaintiff was “engaged” and “presented with no apparent physical or mental
distress.” (Tr. 385, 387). Additionally, Plaintiff told Dr. Derix, “if I am on the right amount of
antidepressant and medication, when I was on it, I was very happy, I seemed to be even,”
“anxiety medicine and music help me,” and “Klonopin works great.” (Tr. 380, 381, 383).
Finally, as the ALJ wrote in his decision, “the fact that [Plaintiff] was able to strike up a
friendship with a female peer on the unit during his December 2011 hospitalization” suggested
that Dr. Derix overstated the severity of Plaintiff’s limitations.
Importantly, the ALJ did not entirely discount Dr. Derix’s opinion, but rather assigned it
partial weight. Indeed, the ALJ’s RFC assessment, which imposed nonexertional limitations
upon his reasoning, problem-solving, and interpersonal interactions, demonstrates that the ALJ
did give some weight to this opinion evidence. See Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir.
Upon review of the record and the ALJ’s decision, the Court finds that the ALJ evaluated
all of the evidence of record and provided good reasons for the weight he accorded Dr. Derix’s
Because substantial evidence on the record as a whole supports the ALJ’s
determination to assign Dr. Derix’s opinion partial weight, the Court will not disturb that
Plaintiff claims that, after the ALJ assigned only partial weight to Dr. Derix’s opinion,
Dr. Doxsee’s opinion, and the GAF scores in the record, he “failed to point to any medical
evidence to support the RFC assessment[.]” Plaintiff further contends that the ALJ improperly
based the RFC finding entirely upon Plaintiff’s “lack of mental health treatment and [his] ability
to interact in a hospital setting.” The Commissioner counters that the ALJ properly evaluated the
medical opinion and other evidence and his RFC was supported by substantial evidence of
RFC is “the most [a claimant] can still do despite” his or her physical or mental
limitations. 20 C.F.R. § 404.1545(a)(1). See also Masterson v. Barnhart, 363 F.3d 731, 737 (8th
“The ALJ should determine a claimant’s RFC based on all relevant evidence
including the medical records, observations of treating physicians and others, and an individual’s
own description of his limitations.”
Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009)
(quotation omitted). “Because a claimant’s RFC is a medical question, an ALJ’s assessment of it
must be supported by some medical evidence of the claimant’s ability to function in the
workplace.” Hensley v. Colvin, 2016 WL 3878219, at *3 (8th Cir. 2016) (quoting Cox v Astrue,
495 F.3d 614, 619 (8th Cir. 2007)). “However, there is no requirement that an RFC finding be
supported by a specific medical opinion.” Id. Nor is an ALJ limited to considering medical
evidence exclusively when evaluating a claimant’s RFC. Cox, 495 F.3d at 619. “It is the
claimant’s burden, and not the Social Security Commissioner’s burden, to prove the claimant’s
RFC.” Pearsall, 274 F.3d at 1217.
Plaintiff argues that “no medical evidence supports the ALJ’s conclusion that [Plaintiff]
was impaired only to the extent that he could still have occasional superficial contact with
coworkers and supervisors and no contact with the general public[.]” To the contrary, Dr.
Doxsee reviewed Plaintiff’s medical records and completed a RFC assessment, which supports
the ALJ’s RFC determination. (Tr. 71-74). In regard to Plaintiff’s social functioning, Dr.
Doxsee found Plaintiff: “moderately limited” in his ability to interact appropriately with the
general public, accept instructions, and respond appropriately to criticism from supervisors; and
“not significantly limited” in his ability to ask simple questions, request assistance, get along
with coworkers or peers without distracting them or exhibiting behavior extremes, and maintain
socially appropriate behavior. (Tr. 74). Dr. Doxsee wrote: “He can interact adequate[ly] with
peers and supervisors.”6 (Id.).
Importantly, the ALJ did not entirely discount Dr. Doxsee’s medical opinions. Rather, he
assigned that opinion “partial weight” to the extent that it was consistent with the ALJ’s
assessment of Plaintiff’s mental functioning. The ALJ found:
[Dr. Doxsee’s] opinions are generally consistent with the preponderance of the
evidence, that although he was referred to mental health providers several
times after his December 2011 hospitalization, [Plaintiff] did not follow-up
with these referrals until the month prior to the hearing. He has also reported
improvement with psychotropic medications.
Accordingly, Dr. Doxsee’s medical opinion satisfies the requirement that “some medical
evidence of the claimant’s ability to function in the workplace” support the ALJ’s RFC findings.
See, e.g., Cox, 495 F.3d at 620.
Furthermore, in formulating Plaintiff’s RFC, the ALJ accounted for Plaintiff’s mental
impairment by including the following nonexertional limitations: “he is able to perform work at
up to General Education Development reasoning level of two in the Dictionary of Occupational
Titles, which is defined as work that requires that the worker apply commonsense understanding
to carry out detailed but uninvolved written or oral instructions and deal with problems involving
a few concrete variables.” (Tr. 26). The ALJ also accounted for limitations on Plaintiff’s social
functioning, writing: “He is limited to occasional superficial, non-confrontational and nonnegotiation types of interactions with coworkers and supervisors. The claimant is also limited to
Plaintiff also argues that the ALJ erred in failing to include in the RFC limitations on Plaintiff’s
ability to adapt. In regard to Plaintiff’s adaptation limitations, Dr. Doxsee found him:
“moderately limited” in his ability to respond appropriately to changes in the work setting, set
realistic goals, and make plans independently of others; and “not significantly limited” in his
ability to be aware of normal hazards, take appropriate precautions, travel in unfamiliar places,
and use public transportation. (Tr. 72-73). Dr. Doxsee concluded: “He can adapt to most usual
changes common to a competitive work setting.” (Tr. 73). Therefore, Dr. Doxsee’s opinion
supported the ALJ’s decision not to include adaptation limitations in Plaintiff’s RFC.
work that does not involve team effort in decision making, development of goals and priorities,
building of a consensus, or negotiated outcomes. He cannot work with the general public.” (Tr.
Plaintiff likens his case to Lauer v. Apfel, 245 F.3d 700 (8th Cir. 2001) and Hutsell v.
Massanari, 259 F.3d 707 (8th Cir. 2001). In those cases, the United State Court of Appeals for
the Eighth Circuit reversed the denial of benefits because the records contained no medical
evidence to support the ALJs’ assessments of the degree to which the plaintiffs’ mental
impairments affected their RFCs. Lauer, 245 F.3d at 706; Hutsell, 259 F.3d at 713. The instant
case is distinguishable because Dr. Doxsee’s medical opinion supports the ALJ’s RFC
Finally, Plaintiff asserts that, in giving “partial weight” to the GAF scores in the record,
the ALJ improperly substituted his opinion for that of the medical professionals. “GAF scores
may be relevant to a determination of disability based on mental impairments.” Mabry v.
Colvin, 815 F.3d 386, 391 (8th Cir. 2016) (citing Pates-Fire, 564 F.3d at 944-45). However,
“[i]n recent years, the [SSA] has recognized, and we have noted, that GAF scores have limited
importance.” Nowling v. Colvin, 813 F.3d 1110, 1115 n.3 (8th Cir. 2016) (citing Jones v.
Astrue, 619 F.3d 963, 973-74 (8th Cir. 2010)).
In this case, the ALJ carefully considered the GAF scores in the record and found they
conflicted with other objective medical evidence in the record. For example, the ALJ explained
that Plaintiff’s most recent GAF score of 50 “appears to be a low assessment since Dr. Kodela’s
mental status exam was essentially normal.” (Tr. 25). In regard to Plaintiff’s GAF score of 40 at
the time of his discharge after the December 2011 hospitalization “appeared to be inconsistent
with the progress notes during that stay.” (Id.). The ALJ did not entirely discount the GAF
scores in the record, but found them credible to the extent “they suggest that the claimant has
moderate limitations in functioning.”
In any event, Plaintiff’s GAF score of 50 is
consistent with the limitations the ALJ placed upon Plaintiff’s interactions with coworkers,
supervisors, and the general public. (Tr. 19-20). See, e.g., Mabry, 815 F.3d at 391.
Based on the foregoing, the record contains adequate medical opinion evidence and other
medical evidence to support the ALJ’s RFC assessment. Although Plaintiff cites evidence that
might support a contrary decision, substantial evidence supports the ALJ’s RFC determination
and, as such, this Court is required to affirm.
For the reasons discussed above, the undersigned finds that substantial evidence in the
record as a whole supports the Commissioner’s decision that Plaintiff is not disabled.
IT IS HEREBY ORDERED that the final decision of the Commissioner denying Social
Security benefits to Plaintiff is AFFIRMED.
A separate judgment in accordance with this Memorandum and Order is entered this date.
PATRICIA L. COHEN
UNITED STATES MAGISTRATE JUDGE
Dated this 14th day of September, 2016
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