Hossenlopp v. Colvin

Filing 28

MEMORANDUM AND ORDER (See Full Order) IT IS HEREBY ORDERED that, pursuant to 42 U.S.C. § 405(g), the decision of the Commissioner is REVERSED, and this cause is REMANDED to the Commissioner for further proceedings consistent with this opinion. An order of remand ~hall accompany this memorandum and order. Signed by Magistrate Judge Patricia L. Cohen on 2/24/17. (EAB)

UNITED STATES DISTR1CT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ANGELA HOSSENLOPl>,
Plaintiff,
vs.
NANCY A. BERRYHILL, 1
Acting Commissioner of Social Security,
Defendant.

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Case No. 4:15CV1229 PLC

MEMORANDUM AND ORDER
Angela Hossenlopp ("Plaintiff') seeks review of the decision of the Social Security ·
Commissioner, Nancy Berryhill, denying her applications for Disability Insurance Benefits and
Social Security Income under the Social Security Act. 2 .The Court has reviewed the parties'·
briefs and the administrative record, including the hearing transcript and medical evidence. For
the reasons set forth below, the case is reversed and remanded.
I.

Background and Procedural History

On July 18, 2013, Plaintiff filed her applications for Social Security benefits alleging that
she was disabled as of April 4, 2009 as a result of: "brain tumor, lymphoma, nodule in lurig,
heart issues, blackouts, bipolar, mediastinal."3 (Tr. 171-74, 175, 177-82, 207). At the time of
Plaintiffs alleged onset date, she was thirty-two years of age. (Tr. 84). The Social Security

1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner
Carolyn W. Colvin as the defendant in this suit. No further action needs to be taken to continue this suit
by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
2

The parties consented to the exercise of authority by the United States Magistrate Judge
fursuant to 28 U.S.C. § 636(c). (ECF No. 7).
The Social Security Administration denied Plaintiffs previous applications for Social Security
benefits on June 28, 2010. (Tr. 203).
1

Administration (SSA) denied Plaintiff's claims, and she filed a timely request for a hearing
before an administrative law judge (ALJ). (Tr. 110-14, 115-19).
The SSA granted Plaintiff's request for review, and an ALJ conducted a hearing on
September 3, 2014. (Tr. 35-83, 120-27). Plaintiff and her friend Johnah Roberts testified at the
hearing. (Tr. 35-83). Ms. Roberts had met Plaintiff approximately four years earlier when Ms.
Roberts' friend "took [Plaintiff] in." (Tr. 70). A vocational expert also testified. (Tr. 73-83).
Plaintiff testified that she worked for about one year sitting with hospice patients, but her
employer fired her the previous week. (Tr. 43-45). Plaintiff explained: "I was undependable
and I kept getting into it with my clients. I have anger outbursts." (Tr. 45). She submitted to the
ALJ a letter from her former employer that stated Plaintiff was late "almost half the time[.]" 4
(Tr. 45). When the ALJ asked why Plaintiff was frequently late to work, Ms. Roberts answered,
"The smallest things ... aggravates [sic] her. She will - when her ADHD gets her confused and
she can't get the medications that she need because she doesn't have Medicaid or anything .... "
(Tr. 46). Plaintiff explained that, when she has access to medication, "they help, but they don't
I

help 100 percent." ilit).
Plaintiff testified that she was seeking Social Security benefits because "[e]very job that
I've tried to get, I try and then I get fired or I lose my temper or - [Dr. Boyd] doesn't even want
me driving because somebody will cut me off and my instinct in my head says, 'Get out and say
something to them,' so I do and then they get mouthy and then I'll hit the windshield or just she just said I put myself in danger, but I don't try to. It just happens." (Tr. 52). Plaintiff stated

4

Although referenced several times at the hearing and in the record the letter from Plaintiff's
previous employer does not appear in the record. According to Dr. Daryl Lindsay's
psychological evaluation, Plaintiff presented "a letter from her employer [Active Angels] stating
she had been fired for her behavior and outbursts with clients." (Tr. 936).
2

that she did not have a therapist but "whenever I was homeless and I stayed at Salvation Army
they gave me a counselor that I could talk to for free." 5 (Tr. 52).
When the ALJ asked Plaintiff about her chest pains and "nodule," she explained, "I
haven't gone back [to the doctor] because I haven't - my Medicaid stopped ...." (Tr. 56).
Plaintiff stated she continued to smoke about a half-pack of cigarettes per day. (Id.). Plaintiff
testified that she suffered daily headaches, for which she took Naproxen and ibuprofen. (Tr. 60).
Plaintiff testified that she was 5'8" and weighed 243 pounds. @). Although she was
not _actively trying to lose weight, she was surprised that her weight was not decreasing because a
_side effect of her medication was loss of appetite and she only ate "one time a day[.]" (IQ).
When the ALJ questioned Plaintiff about her sleep hygiene, she answered, "[W]hen it's time to
go to sleep, I can't sleep. I have nightmares of, like, the past when I was younger and being
'

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abused and locked in a basement and then I just be up worrying about that and thinking about
that and then I'll fall back asleep and have more nightmares and then I just end up staying up and
then I'm tired the next day." (Tr. 61).
Ms. Roberts stated that Plaintiff could lift "[p]robably about 30 to 35 pounds." (Tr. 61).
Plaintiff testified that she was able to mow the "small" front yard, but her brother mowed the
backyard, because it was larger. ·(Tr. 62). Plaintiff did not think she could return to school
because "with the anger and j-µst, like, the little things that irk me, I don't really think I could sit
in the classroom ... and having to deal with the ... deficit disorder, the authority problem, I just - I
don't really think I cai.~ do it." (Tr. 64).
In regard to her education, Plaintiff testified "I went to a special school district. I have a
learning disability so I kept getting kicked out of school for my behaviors and - my behavior and
5

Plaintiff testified that the social worker's name was Mary Hall. (Tr. 52). The record does not
contain treatment notes from this social worker.
3

my mouth, so then they put me in - I got suspended for 180 days ... but they let me go to some
alternative school in Brentwood, Missouri .... and that's how I graduated[.]" Plaintiff stated
she also had difficulties with "flashbacks" and "I just like, kind of like, shut down and, like, do
my own things." (Tr. 66). Plaintiff spent time in jail because she stole from a woman· whose
house she used to clean. (Tr. 64).
In a decision dated February 3, 2015, the ALJ applied the five-step evaluation process set
forth in 20 C.F.R. §§ 404.1520(a), 416.920(a) 6 and found that Plaintiff "has not been under a
disability, as defined in the Social Security Act, from April 4, 2009, through the date of this
decision[.]" (Tr. 18-28). The ALJ found that Plaintiff had the severe impairments of "chest pain
possibly related to asthma, feet arthritis [sic], obesity, headaches, and mental impairments
sometimes characterized as mood disorder, anxiety, attention deficit hyperactivity disorder
('ADHD'), or personality disorder[.]" (Tr. 21). Additionally, the ALJ found that Plaintiff had
the following non-severe impairments:

sleep apnea, hypertension, hypothyroidism, and

degenerative disc disease. (Tr. 21). In regard to other claimed conditions, the ALJ found that
Plaintiffs "brain tumor is not a medically determinable impairment" and, while the record shows
Plaintiff received treatment for lymphadenopathy, "a February 2011 scan showed a decrease in
the size and number oflymph nodes." (Tr. 21).

6

To determine whether a claimant is disabled, the Commissioner engages in a five-step
evaluation process. See 20 C.F.R. §§ 404.1520(a), 416.920(a). 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 CPR Part 404, 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.
4

After reviewing Plaintiff's medical records and Plaintiff's and Ms. Roberts' 7 testimony,
the ALJ determined that Plaintiffs "statements concerning the intensity, persistence and limiting
effects of these symptoms are not entirely credible[.]" (Tr. 26). The ALJ found that Plaintiff had
the residual functional capacity (RFC) to
perform medium work . . . where the claimant lifts or carries 50 pounds
occasionally and 25 pounds frequently, stands or walks for six of eight hours
during the workday, and sits for six of eight hours during the workday. The
claimant's work is limited to simple, unskilled (SVP 1 or 2) work, with no
public contact work, and no more than occasional and superficial contact with
supervisors and co-employees.
(Tr. 23).

The ALJ concluded that Plaintiff could not perform past relevant work, but' that

Plaintiff could perform other jobs that existed in significant numbers in the national economy
and was, therefore, not disabled. (Tr. 27-28).
Pl:;ijntiff fil~d

a,req~est

for review of the ALJ's

deci~ion

with the, SSA. Appeals Council,

which denied review on June 19, 2015. (Tr. 1-6, 8). Plaintiff has exhausted all administrative
remedies, and the ALJ's decision stands as the SSA's final decision. Sims v. Apfel, 530 U.S.
103, 106-07 (2000).

IL

Standard of Review

A court must affirm an 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) (quoting Boerst v. Shalala, 2 F.3d 249, 250 (8th Cir. 1993)). In
determining whether the evidence is substantial, a court considers evidence that both supports
and detracts from the Commissioner's decision. Pate-Fires v. Astrue, 564 F.3d 935, 942 ·(8th
7

In his decision, the ALJ referred to Ms. Roberts' as "claimant's mother." (Tr. 18). A review of
the record reveals that Ms. Roberts was not Plaintiff's mother. Rather, Ms. Roberts was a friend
of Plaintiffs legal guardian, a woman whom Plaintiff called "mom."
5

Cir. 2009). However, a 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
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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
Goffv. 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).

IIL

Discussion

Plaintiff claims that substantial evidence does not support the ALJ' s determination of her
RFC because the ALJ failed to properly consider: (1) the severe impairments of obesity and
headaches; 8 and (2) the medical opinion evidence concerning Plaintiffs mental limitations. The
Commissioner counters that, in formulating the RFC, the ALJ properly considered Plaintiff's
severe impairments, credibility, and medical opinion evidence.

A. Obesity
Plaintiff argues that the ALJ erred because, despite finding that her obesity was a severe
impairment, the ALJ did not factor the resulting limitations into the RFC. In response, the
8

The Court notes that Plaintiff listed neither obesity nor headaches as impairments affecting her
ability to work in her applications for benefits or in her disability report. (Tr. 171-74, 177-82).
The Eighth Circuit has held that a claimant's failure to allege disability due to a particular
condition "is significant." Dunahoo v. Apfel, 241F.3d1033, 1039 (8th Cir. 2001).
6

Commissioner asserts that the ALJ properly considered Plaintiffs obesity and its effect on her
RFC in compliance with SSR 02-lp, 2002 WL 34686281 (Sept. 12, 2002).
RFC is "the most [a claimant] can still do despite" his or her physical or mental
limitations. 20 C.F.R. § 404.1545(a). "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) (quoting Lacroix v. Barnhfil:t, 465 F.3d 881, 887 (8th Cir. 2006)). The claimant bears
the burden of proving disability and demonstrating his or her RFC. Martise v. Astrue, 641 F.3d
909, 923 (8th Cir. 2011).
The SSA recognizes that "[t]he combined effects of obesity with musculoskeletal
impairments can be greater than the effects of each of the impairments considered separately."
20 C.F.R. § 404, Subpt. P, App'x 1, § 1.00(Q). See also SSR 02-lp, 2002 WL 34686281, at *3
(Sept. 12~ 2002). Thus, 'at all stages of the sequential evaluation proce'ss, including the

.RFC

determination, "adjudicators must consider any additional and cumulative effects of obesity." 20
C.F.R. 404, Subpt. P, App'x 1, § 1.00(Q). However, the United States Circuit Court for the
Eighth Circuit has held that "[w]hen an ALJ references the claimant's obesity during the claim
evaluation process, such review may be sufficient to avoid reversal." Wright v. Colvin, 789 F.3d
847, 855 (8th Cir. 2015) (quoting Heino v. Astrue, 578 F.3d 873, 881 (8th Cir. 2009)).
At step three of the sequential evaluation process, the ALJ cited SSR 02-lP

and

considered whether Plaintiffs obesity qualified as a listing impairment. (tr. 21-22). The ALJ
noted that, at relevant times, Plaintiff "weighed over 244 pounds and was determined to be obese
during an examination." (Tr. 22). Because the ALJ found "no other evidence in the record ...
that the claimant's obese physique aggravates the other impairments so much as to result in

7

listing-level severity," he concluded that her obesity, did not "alone or in combination with other
impairments, meet or medically equal a listed impairment." (Id.).
The ALJ again referenced Plaintiffs obesity when formulating her RFC.

(Tr. 24).

Specifically, the ALJ noted that, "[i]n July 2013, the claimant weighed 244 pounds, which
established obesity." (IQJ. The ALJ stated: "As for the claimant's feet arthritis and obesity, the
record shows conservative treatment for her feet and good musculoskeletal functioning." (IQJ.
The ALJ accounted for Plaintiffs obesity, in combination with her other physical impairments,
by limiting her to medium work. (Tr. 23).
Although Plaintiff argues that the ALJ failed to include in the RFC limitations relating to
her obesity, she does not identify any functional restrictions caused by her obesity, nor does she
point to any medical evidence supporting the imposition of greater limitations. The Court finds
that the ALJ properly accounted for Plaintiffs obesity when formulating the RFC. "Because the
ALJ specifically took [Plaintiffs] obesity into account in his evaluation, we will not reverse that
decision." Heino, 578 F.3d at 881-82.

B. Headaches
Plaintiff claims the ALJ also erred in failing to incorporate in the RFC limitations relating
to Plaintiffs severe. impairment of headaches.

More specifically, Plaintiff argues the ALJ

improperly discounted the effects of her headaches based on his findings that the record
contained no objective explanations for the headaches and Plaintiff received minimal treatment
for them. The Commissioner counters that the ALJ properly considered the evidence when
formulating the RFC.
At the hearing, Plaintiff testified that she suffered headaches daily and took Naproxen
and ibuprofen, which "helps." (Tr. 59-60). Her medical records reflect that she complained of

8

headaches at her first appointment with Dr. Danessa Brown, her primary care physician, on April
29, 2010. (Tr. 864). Plaintiff also reported headaches at doctor appointments and ER visits in
June 2010, July 2010, October 2010, November 2010, December 2010, December 2011, and
August 2012.

(Tr. 864, 844-49, 487-504, 829, 818, 800-05, 794, 788-93, 548, 663-65).

However, Plaintiffs records reflect that she was "negative" for headaches in August 2010,
September 2010, January 2011, February 2011, March 2011, April 2011, May 2011, April 2012,
May 2012, July 2012, May 2013, and July 2013. (Tr. 856, 507, 835, 527, 778, 771-76, 767, 760,
754-55, 434, 737, 746, 460, 729, 693, 686).

CT images of Plaintiffs head revealed no

abnormalities in July 2010 and December 2010. (Tr. 492, 879).
In his decision, the ALJ wrote: "[T]he record shows minimal headache treatment and no
abnormaiities that would cause headaches.". (Tr. 24) .. The ALJ noted that, in June 2010,
Plaintiff's headaches "were described as 'intermittent'" and a "December 2010·head scan was
normal other than~~ incident~! arachnoid cyst.." (Id.). Finally, the,ALJ ob;e~ed that, "[d]espite
the fact that [Plaintiff] was a frequent visitor to the emergency room, she was not hospitalized
with symptoms related to headaches." (Id.).
The ALJ properly considered Plaintiffs testimony and the medical evidence of record in
making the RFC determination. Plaintiff neither cited functional limitations imposed by her
doctors nor identified the types of limitations her headaches allegedly caused. Furthermore,
.

.

Plaintiffs testimony. and medical records suggest~d that conservative treatment controlled her
headaches. See Buford v. Colvin, 824 F.3d 793, 797 (8th Cir. 2016). "If an impairment can be
controlled by treatment or medication, it cannot be considered disabling." Wildman v. Astrue,
596 F.3d 959, 965 (8th Cir. 2010) (quotin.g Brown v. Barnhart, 390 F.3d 535, 540 (8th Cir.
2004)). Because the ALJ's RFC determination is consistent with the type and level of treatment

9

Plaintiff sought and received, her physicians' medical observations, and the results of medical
testing, substantial evidence in the record supports the ALJ's RFC finding. 9
C. Mental RFC

In her final argument, Plaintiff claims substantial evidence does not support the ALJ' s
determination of her mental RFC. More specifically, Plaintiff as.serts that the ALJ improperly
weighed the .medical . opinion evidence and based the m~ntal RFC determination on .his own
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inferences, Plaintiffs lack of mental health treatment, and hiS observations of Plaintiff during the
hearing. In response, the Comrissioner contends that the ALJ properly evaluated the evidence.
regarding Plaintiffs mental health and substantial evidence supported the mental RFC
determination.
An RFC determination is to be "based on all the relevant medical and other evidence in

[the] record." 20 CFR § 404.1520(e). This includes medical records, .observations of treating
physicians ·and others, and

~

individual's .own description of his or her limitations. McKinney

v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000). 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).
The opinions of non-examining and non-treating physicians generally do not constitute

9

Plaintiff suggests that the ALJ erred in failing to ascribe particular limitations to the severe
impairments of obesity and headaches. However, Plaintiff cites no authority for the proposition
that an ALJ must specify a claimant's limitations on a condition-by-condition basis. Addressing
a similar argument, the United States District Court for the Western District of Missouri
explained: "This [lack of supporting authority] is unsurprising: doctors do not offer such
opinions. They offer opinions based on their patient's condition as a whole, and the ALJ is
similarly required to assess a claimant's RFC based on all of the limitations found to exist
regardless of the medical cause for those limitations." Dean v. Astrue, No. 11-0001-CV-WODS, 2011 WL 3837963, at *5 (W.D. Mo. Aug. 29, 2011).
10

substantial evidence on which an ALJ can assess an RFC. See Jenkins v. Apfel, 196 F.3d 922,
925 (8th Cir. 1999).
In her disability report, Plaintiff stated that she attended special education classes from
the 1980s through 2000, when she graduated from the Special School District of St. Louis. (Tr.
206-19). Plaintiff most recently worked part time as a home health aide for hospice patients, but
her employer fired her because "they said I was undependable and I kept getting into it with my
clients. I have anger outbursts." (Tr. 52, 220).
In her function report, dated August 2, 2013, Plaintiff stated that she lived with her
"mother," 10 who prepared meals and "usually does all the cleaning." (Tr. 194). Plaintiff stated
that she tried to limit her driving "because of blackouts w[ith] headaches." (Tr. 194). Plaintiff
stated that she had:' difficulty getting along with family, friends, and authority figures;

a"very

short attention span"; and problems completing tasks, concentrating, and following instructions.
(Tr. 195-96). Plaintiff noted that her hobbies included walking and playing volleyball, and she
"sometimes go[es] to church with friends." (Tr. 195).
Plaintiff's legal guardian, Dawn Rashad, completed a third party adult function report for
Plaintiff on January 12, 2015. (Tr. 269-80). Ms. Rashad defined her relationship to Plaintiff as
"Godmother/legal guardian." (Tr. 269). Ms. Rashad wrote that Plaintiff's medication "makes
her very drowsy, she sleeps a lot, would be unsafe for her to operate a vehicle." (Tr. 269).
According to Ms. Rashad, Plaintiff's mental impairments limited her ability to work because
Plaintiff "goes from extreme euphoria to intense depression and has no control[.] Anxiety, gets
mad, upset, suicide [sic], or anger outbursts." (Id.). Ms. Rashad had to remind Plaintiff to take
10

In a third party function report and attached letter, Dawn Rashad stated that she is Plaintiff's
legal guardian. (Tr. 269-82). Ms. Rashad explained: "She has been in my care for 5 years. I
have took her under my care as her mother, caretaker when she lost her place due to several
complaints and repeated police reports." (Tr. 282).
.
11

her medicine, shower, change her clothes, and brush her teeth and hair. (Tr. 271, 278). In regard
to household chores, Ms. Rashad wrote: "On good days I try to have her help me with mating
socks, but she can't match them correctly." (Tr. 278). Ms. Rashad did not allow Plaintiff to
keep razors because Plaintiff "selfl-]harms" and did not trust her with yard work because she had
used yard tools as weapons. (Tr. 278, 275).
Ms. Rashad reported that Plaintiff no longer drove because "her medicine makes her
sleepy or she has road rage and anger and spontaneous none judgment [sic] behavior crashes into
objects." (Tr. 275). The only places Plaintiff went regularly were her doctor appointments and
"sometimes that['s] a struggle." (Tr. 277). Ms. Rashad took Plaintiff to her appointments. (Id.).
Plaintiff also had difficulty getting along with others because "she gets into [it] with everyone,
thinks they are planning against her ... Don't like people looking at her." (Tr. 278). Under
stress, Plaintiff "starts to cry, feel suicidal thoughts, hurts herselfl.]"

(Tr. 279).

Unusual

behaviors included "cutting herself, feeling hopeless like we 'are against her, very mean, punches
herself, bangs her head against walls." (Tr. 279).
In regard to Plaintiff's financial ability, Ms. Rashad stated that Plaintiff did not shop, pay
bills, count change, handle a savings account, or use a checkbook. (Tr. 275). Ms. Rashad
handled Plaintiffs finances for her because "she has no memory of the bills and dates of things, I
am her legal guardian, I handle all her stuff." (!4).
At Plaintiff's initial appointment with Dr. Brown on April 29, 2010, Dr. Brown noted that
Plaintiff suffered ADHD and prescribed Ritalin. (Tr. 862-69). In April 2010 and May 2010, Dr.
Brown observed that Plaintiffs affect, attention span, and judgment were "normal," but she
found that Plaintiff had "poor insight." (Tr. ·866, 858). Hospital records dated August 24, 2010,
reflect that Plaintiff was taking Celexa and Ritalin, and records dated September 14, 2010, stated

12

that Plaintiff suffered "generalized anxiety disorder." (Tr. 508, 303). At .an appointment with
Dr. Brown on November 2, 2010, Dr. Brown noted that the Ritalin was not controlling Plaintiffs
symptoms "throughout [the] day," and she prescribed Adderall. (Tr. 817-20). In December
2010, Dr. Brown found that Plaintiff was positive for "psychiatric symptoms." (Tr. 789).
In May 2011, Dr. Brown found that Adderall was controlling Plaintiffs ADHD. (Tr.
753-58). Medical records reflected Plaintiff exhibited a normal affect in February 2011, March
2011, May 2011, December 2011, March 2012, April 2012, May 2012, and July 2012. (Tr. 773,
768, 756, 552, 381, 389, 461, 730).
In August 2012, Plaintiff visited Dr. Brown for sleep disturbance, and Dr. Brown
diagnosed her as "borderline for pathologic sleepiness, multiple symptoms possibly related to
anxiety and/or depression." (Tr. 664). In a follow-up appointment with Dr. Brown in September
2012, Dr. Brown noted that Plaintiffs ADHD symptoms were not relieved With medication and
Plaintiff was easily distracted and frustrated, made frequent careless mistakes, and was unable to ·
follow directions. (Tr. 710). Dr. Brown noted that Plaintiff exhibited poor insight and judgment
on January 25, 2013, and an emergency room doctor diagnosed Plaintiff with generalized anxiety
disorder on February 26, 2013. (Tr. 701, 604). At a follow-up appointmenr with Dr. Brown on
July 15, 2013, Dr. Brown found that Plaintiff was chronically depressed
Cymbalta.

11

and prescribed

.

(Tr. 684-91).

Dr. Robert Cottone, the state agency physician, completed a psychiatric review technique
and mental RFC assessment based upon Plaintiffs medical records. (Tr. 89-90, 100-02). Dr.
Cottone diagnosed Plaintiff with organic mental disorders and affective disorders, but found

11

In August 2013, Dr. Peggy Taylor Boyd became Plaintiffs primary care provider. (Tr. 946).
Dr.Boyd's treatment notes, most of which relate to prescriptions, are largely illegible. (Tr. 94651 ).
13

these impairments only mildly limited Plaintiffs activities of daily living, social functioning, 12
and concentration, persistence, and pace. (Tr. 90). Dr. Cottone explained that Plaintiffs mental
status exams "have consistently shown normal mood and affect, normal behavior, and normal
judgment and thought'.' and Dr. Brown's treatment notes revealed that Plaintiff "reported good
control with Adderall[.)" (@. Dr. Cottone concluded that Plaintiffs abilities to understand,
remember, and carry out detailed instructions were moderately limited, but concluded that
Plaintiff was able to "understand, remember, carry out and persist at simple tasks; make simple
work-related judgments; relate adequately to co-workers or supervisors; adjust adequately to
ordinary changes in work routine or setting."

(Tr. 100-101). Additionally, the ALJ determined

that Plaintiff had no social interaction limitations. (Tr. 101).
Dr. Daryl Lindsay performed a psychological evaluation for Plaintiff on October 11,
2014 based upon a one-hour examination with Plaintiff and a review of her medical records. (Tr.
934-43). Plaintiff informed Dr. Lindsay that~ as a child in foster care, 'she received adiagnosis of
oppositional defiant disorder and began taking medications for ADHD in third grade. (Tr. 935).
Plaintiff described impulsive behavior and road rage, "where she gets out of the car and hits the
windows of other drivers[.]" (Tr. 935). Plaintiff described episodes where she is '"up real high'
and wants to go 'shopping/steal.' She is 'on top of the earth and wants to do everything nice'
and then 'five minutes later [she] is depressed and wants to hurt others and to be left alone."'
(Tr. 935).

Plaintiff also discussed with Dr. Lindsay self-harming behaviors "that includes

overdose on pills, cutting her wrists and body (showed superficial scars on top of left hand/arm),
and ptmching things, including herself." (Tr. 935). Plaintiffs list of medications prescribed by

12

In his psychiatric review technique, Dr. Cottone noted that Plaintiffs social functioning was
"mildly limited," but in his mental RFC assessment, he stated that Plaintiff had no social
interaction limitations. (Tr. 90, 101).
14

her new primary care doctor included: Tramadol, Lisinopril-HCTZ, Seroquel, D-Amphetamine,
Hydrochlorothiazide, Xanax, and Lithium. (Tr. 935).
Dr. Lindsay diagnosed Plaintiff with the following: borderline personality disorder and
"ADHD, predominantly hyperactive/impulsive presentation, moderate." (Tr. 939). Dr. Lindsay
noted that Plaintiffs prognosis, with treatment by medication only, was poor, but "[w]ith
treatment by medication and appropriate psychological interventions (i.e., dialectical behavior
therapy), guarded, as Borderline Personality Disorder is pervasive." (Tr. 939). Dr. Lindsay
completed a medical source

statem~nt,

in which he found Plaintiff:_ not limited in her ability to

carry out simple instructions; mildly limited in her ability to understan_d and remember simple
instructions, make judgments on simple work-related decisions, and understand and remember
complex instructions; moderately limited in her ability to

~arry

out complex instructions; and

markedly limited in her ability to make judgments on complex work-related decisions. (Tr. 941).
In regard to Plaintiffs: socia~. functioning, Dr. Lindsay determined that she was markedly limited
in her ability to interact with the public and respond appropriately to usual work situations and to

changes in routine and extremely limited in her ability to interact appropriately with supervisors
and co-workers. (Tr. 942).
Dr. Almas Rahman completed a psychological evaluation for Plaintiff on November 11,
2014. (Tr. 954- 59). Plaintiff informed Dr. Rahman that, as a child, she was sexually and
mentally abused and suffered "defiance problems." (Tr.' 954). Plaintiff described "episodic
.
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.

.

amiiety, says she d~es not know why, says she has a BAD TEMPER and does NOT DRIVE
because of 'ROAD

RAG-B.'

States that her MANIC episode is when she GETS MAD and

explodes, has low frustration TOLERANCE[.]" (@ (emphasis in original). · Plaintiff also
informed Dr. Rahman th_at "she goes to pay day loans, gets the loan from them and then goes

15

gambling at the boats. Says she will also steal things from stores, then will take them back to the
store and will get a GIFT CARD for them." (@(emphasis in original). Dr. Rahman noted that
Plaintiff exhibited "flight of ideas," "tangentiality," "paranoid ideas," and delusions. (Tr. 955).
.

.

.

He· diagnosed her. with: .bipolar disorder, depressed with psychotic features; PTSD; and
borderline personality disorder, severe. (@. Dr. Rahman assigned Plaintiff a GAF score of
42Y (Id.).
In reviewing the medical opinion evidence, the ALJ found that Dr. Cottone' s "unskilled
work finding is supported by the lack of mental health treatment in the

record.'~

(Tr. 26).

Because Dr. Cottone did not include any social limitations, "which are appropriate considering
the claimant's diagnosis of a personality disorder," the ALJ assigned that opinion "some
weight.'' (@.
The ALJ granted less weight to the opinion of Dr. Lindsay,1 the consultative examiner.
(@.

The ALJ disagreed with Dr. Lindsay's determination that Plaintiff had "extreme

limitations With interacting with others because of 'extreme' mood swings.'' (ML). The ALJ
explained:

"[T]his extreme social interaction finding is contradicted by the claimant's

cooperative and pleasant nature during Dr. Lindsay's own examination," her "pleasant and
13

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 phJ;sical or environmental
limitations. Diagnostic & Statistical Manual of Mental Disorders (4 ed.) (DSM-IV) at 32.
GAF scores of 31-40 indicate some impairment in reality testing or communication or "major"
impairment in social or occupational functioning. · The Court notes that DSM-V was released in
2013 and replaced the DSM-IV. The DSM-V "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.
16

cooperative" demeanor during the hearing, and "other examinations where the claimant
presented with a normal mood and affect."

(Id.).

Additionally, the ALJ discredited Dr.

Lindsay's opinion because "[h]e appears to rely on the subjective reports of the claimant for his
conclusion, as there is no evidence in the record to support extreme mood swings other than the
claimant's reports." (IQ,). The ALJ therefore assigned Dr. Lindsay's opinion "little weight."
(IQ,).
In discussing Dr. Rahman's medical opinion, the ALJ noted that, although Dr. Rahman
gave Plaintiff a GAF score of 42, "his actual assessment and mental status examination found the
claimant logical with average intelligence, no suicidal or homicidal ideations, no visual or
auditory hallucinations and with objectively normal findings on mental status examination[.]"
,·

(Tr~

27).

The ALJ discredited Dr. Rahman's GAF score because "the claimant's actual

presentation as ~eflected in the mental -~tafus exam correlates ~elf With her pre~e!ltafi~n at he~
consultative examination and the disability hearing itself, which paint a more positive picture of
both the claimant's current mental status and her future capabilities[.]"

(Id.).

The ALJ

concluded: "Thus, the undersigned gives little weight to the doctor's GAF score of 42." (IQ,).
Based on the medical records and testimony, as well as his own observations of Plaintiff during
the hearing, the ALJ included the following nonexertional limitations in the RFC:

"The

claimant's work is limited to simple unskilled (SVP 1 or 2) work, with no public contaCt work,
and no more than occasional and superficial contact with supervisors and co-employees." (Tr.
23).
.

.

Plaintiff argues that the ALJ erred by giving some weight to the opinion of the nonexamining, state agency psychological consultant, Dr. Cottone, while discrediting the opinions of
Drs. Lindsay and Rahman. As the ALJ observed, Dr. Cottone found that Plaintiff could perform

17

unskilled work. (Tr. 26). The ALJ found that Dr. Cottone's findings were consistent with the
medical evidence, which generally showed normal mental status examinations and a lack of
mental health treatment. (@. The ALJ only accorded his opinion some weight, however,
because Dr. Cottone failed to consider Plaintiff's personality disorder and resulting limitations.
(Id.). The Court finds the ALJ provided sufficient reason to assign Dr. Cottone's opinion some
weight.
The Court also finds that the ALJ gave valid reasons for discrediting Dr. Lindsay's and
Dr. Rahman's medical opinions. The ALJ granted Dr. Lindsay's opinion "little weight" because
Dr. Lindsay relied heavily on Plaintiffs "subjective reports." (Tr. 26).

See McCoy v. Astrue,

648 F.3d 605, 616-17 (8th Cir. 2011) (ALJ may reject a medical opinion if it is "inconsistent
with the record as a whole" or "based, at least in part, on [the claimant's] self-reported
symptoms" where the claimant is deemed not credible).
In discussing Dr. Rahman's opinion, the ALJ explained that the GAF score of 42 was not
consistent with Dr. Rahmari's "actual assessment and mental status examination[.]" (Tr. 27).
The ALJ also noted that, according to the SSA, GAF scores "are mere 'snapshots' and not
standardized (they vary from clinician to clinician)[.]" 14 (Id.). The ALJ properly considered
Plaintiffs GAF score in light of the SSA's position on GAF and the Dr. Rahman's entire
evaluation. 15 See, e.g., Myers v. Colvin, 721 F.3d 521, 525 (8th Cir. 2013) (internal citation
14

"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-Fires v. Astrue, 564 F.3d 935,
944--45 (8th Cir. 2009)). 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)).
15
Plaintiff appears to argue for remand on the ground that the ALJ only considered the GAF
score assigned by Dr. Rahman and failed to specify the weight given Dr. Rahman's opinion as a
whole. Although ALJs must consider opinions in the record, the ALJ is not required to discuss
every piece of evidence submitted. Wildman, 596 F.3d at 966. "[A]n ALJ's failure to cite
specific evidence does not indicate that such evidence was not considered." Id. The ALJ's
18

omitted) ("Although the SSA does not consider GAF scores to 'have a direct correlation to the
severity requirements,' we have considered GAF scores in reviewing an ALJ' s determination
that a treating source's opinion was inconsistent with the treatment record.").
Plaintiff further argues that the ALJ did .not base the .mental RFC determination on
substantial evidence in the record. According to Plaintiff, the ALJ' s decision "is based upon
plaintiff's lack of mental health treatment in the record (opinion of Dr. Cottone), the ALJ's
observations at the hearing, and her presentation at the consultative exam." (ECF No. 18 at 8).
In other words, Plaintiff alleges that the ALJ based his decision upon his own inferences rather
than medical evidence. The Commissioner counters that the ALJ properly based the RFC on all
the evidence of record.
Although the ALJ bears the primary responsibility for assessing a claimant's residual
functional capacity based on all relevant evidence, "a claimant's residual functional capacity is a
~edical question:" Lauer v. Apfel, 245F.3d100, 704 (8th Cir. 2001) (quoting Singh v. Apfel,

222 F.3d 448, 451 (8th Cir. 2000)). See also Hutsell v. Massanari, 259 F.3d 707, 712 (8th Cir.
2001). "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, 829 F.3d 926, 932 (8th Cir. 2016) (quoting Cox v. Astrue, 495 F.3d 614, 619
(8th Cir. 2007)). "An administrative law judge may not draw upon his own inferences from
medical reports." Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000). See also Pratt v.
Sullivan, 956 F.2d 830, 834 (8th Cir. 1992) (per curium) (it is reversible error for an ALJ to
substitute his own unsubstantiated conclusion concerning a mental impairment for the express
diagnosis of an examining psychiatrist).
discussion of the GAF score assigned by Dr. Rahman demonstrates that the ALJ considered Dr.
Rahman's evaluation. Thus, the ALJ's failure to specify the weight afforded to Dr. Rahman's
opinion does not require remand.
19

In Nevland v. Apfel, the United States Court of Appeals for the Eighth Circuit reversed
an ALJ's denial of benefits because "[t]he ALJ relied on the opinions of non-treating, nonexamining physicians who reviewed the reports of the treating physicians to form an opinion of
[the claimant's] RFC." 204 F.3d at 858. The Court stated: "The opinions of doctors who have
not examined the claimant ordinarily do not constitute substantial evidence on the record as a ·
whole." Id. (citing Jenkins, 196 F.3d at 925). Although a non-examining physician's opinion
might constitute sufficient evidence at step four of the sequential analysis, when the claimant has
the burden to prove she cannot do past relevant work, it is not sufficient at step five, where the
Commissioner must prove that the claimant retains the RFC to do other jobs existing in the
national economy. Id. ("[T]he testimony of a vocational expert who responds to a hypothetical
based on such evidence is not substantial evidence upon which to base a denial of benefits.").
Here, the only medical evidence relating specifically to Plaintiffs ability to work was the
reports of Dr. Lindsay and Dr. Cottone.

The ALJ assigned little weight to Dr. Lindsay's

determination that Plaintiff was markedly limited in her ability to interact with the public and
respond appropriately to usual work situations and extremely limited in her ability to interact
with supervisors and coworkers. (Tr. 26). Although the ALJ questioned Dr. Cottone's finding
that Plaintiff had no social interaction limitations, he nevertheless gave Dr. Cottone's opinion
some weight. (MJ. Thus, the only medical opinion evidence suggesting that Plaintiff had the
mental RFC to function iri the workplace, even with limitations, was Dr. Cottone's report. As
previously discussed, Dr. Cottone never examined Plaintiff and based his RFC opinion solely
upon Plaintiffs medical records.
There must be "[s]ome medical evidence" to "support the determination of a claimant's
RFC, and the ALJ should obtain medical evidence that addresses the claimant's ability to

20

function in the workplace." Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004) (internal
citation omitted). Upon review of the record, it appears the ALJ based the mental RFC either
upon the non-examining doctor's opinion or upon the ALJ's own inferences from medical
reports and personal observations, neither of which constitutes medical evidence. See Nevland,
204 F.3d at 858. Because some medical evidence in the record did not inform and support the
ALJ' s RFC assessment, the Court remands for reconsideration of this issue;

IV.

Conclusion

For the reasons set forth above, the court finds that the Commissioner's decision was not
supported by substantial evidence. Accordingly,

IT IS HEREBY ORDERED that, pursuant to 42 U.S.C. § 405(g), the decision of the
Commissioner is REVERSED, and this cause is REMANDED to the Commissioner for further
proceedings consistent with this opinion.
An order of remand ~hall accompany this memorandum and order.

PATRICIA L. COHEN ..
UNITED STATES MAGISTRATE JUDGE
Dated this.24th day of February, 2017

21