Knuth v. Colvin
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. A separate Judgment in accordance with this Memorandum and Order will be entered this same date. Signed by District Judge Carol E. Jackson on 9/2/16. (JAB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
ROBERT ALLEN KNUTH,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Case No. 4:15-CV-1351 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court for review of an adverse ruling by the Social
I. Procedural History
On May 29, 2009, plaintiff Robert Allen Knuth filed applications for a period
of disability, disability insurance benefits, Title II, 42 U.S.C. §§ 401 et seq., and for
supplemental security income, Title XVI, 42 U.S.C. §§ 1381 et seq., with an alleged
onset date of June 1, 2008. (Tr. 243-46, 247-50). After plaintiff’s applications were
denied on initial consideration (Tr. 100, 101), and reconsideration (Tr. 102, 103),
he requested a hearing from an Administrative Law Judge (ALJ). Following a
hearing on June 7, 2011, (Tr. 30-52), the ALJ issued a decision denying plaintiff’s
applications on August 24, 2011. (Tr. 107-16). On October 5, 2012, the Appeals
Council vacated the hearing decision and remanded plaintiff’s case to the ALJ with
instructions to “obtain additional evidence . . . includ[ing] a consultative mental
examination with psychological testing and medical source statements;” evaluate
third-party evidence; further evaluate plaintiff’s subjective complaints and mental
impairments; and obtain additional evidence if necessary. (Tr. 122-24). Plaintiff and
counsel appeared for an additional hearing conducted by video on February 14,
2014. (Tr. 53-99). The ALJ again denied plaintiff’s applications on March 13, 2014.
(Tr. 14-23). The Appeals Council denied plaintiff’s request for review on June 25,
2015. (Tr. 1-4). Accordingly, the ALJ’s decision stands as the Commissioner’s final
II. Evidence Before the ALJ
A. Disability Application Documents
Plaintiff completed a Disability Report on June 9, 2009, listing his disabling
conditions as fetal alcohol syndrome, learning disabilities, and mental health
problems. (Tr. 319-25). He reported that he had been placed in special education
services and that he had difficulty with reading, writing, and math. He had
previously worked as a janitor, stopping on June 1, 2008, due to his conditions.
Plaintiff did not list any medications in his Disability Report.
The record contains Function Reports completed in May and June 2009 by
plaintiff and a friend, Linda Burnett. In his report, plaintiff reported that he lived
with friends. (Tr. 326-23). Plaintiff woke up about 5:00 in the morning. On days
when he felt able to do so, he went out to look for work; otherwise, he avoided
other people. He prepared sandwiches and pizza for himself and, with reminders,
did his own laundry and washed dishes. Ms. Burnett reported that plaintiff also did
mowing and raking. Plaintiff wrote that he sometimes shopped for food, but had to
work up his nerve to go in stores. Ms. Burnett reported that plaintiff occasionally
shopped for leather and beads for Indian crafts. Plaintiff wrote that he was unable
to pay bills, count change or handle bank accounts, while Ms. Burnett stated that
plaintiff was able to count change and could pay bills when reminded to do so.
Plaintiff identified his hobbies as going to schools to talk about Native Americans.
Ms. Burnett additionally wrote that plaintiff’s activities included watching television,
visiting friends, walking in the woods, and working to protect the environment and
Indian gravesites. Plaintiff regularly attended Alcoholics Anonymous (AA) meetings
and spoke at treatment centers about drug and alcohol abuse. He tried to avoid
authority figures and generally preferred doing things on his own because it was
“just easier.” With respect to his ability to work with others, plaintiff’s learning
disabilities exposed him to name calling or termination. He responded to stress and
changes in routine with anger or severe depression. He had problems with talking,
memory, completing tasks, concentration, understanding, following instructions,
and getting along with others. Although he had trouble following written
instructions, he could follow clear spoken instructions. In a brief narrative
statement, plaintiff wrote that he thought he was able to talk about Native
Americans and other things he knows well. He had been sober for fourteen years.
Ms. Burnett noted that plaintiff had two daughters and a stepdaughter for whom he
provided support when able. (Tr. 315).
The record includes three additional reports from Ms. Burnett. On November
20, 2009, she reported that plaintiff had been struggling with depression and
suicidal thoughts following the death of his mentor in September. (Tr. 338-44). He
could not take antidepressants because they caused dangerously strong suicidal
urges. Ms. Burnett described plaintiff as unable to care for himself and reliant on
friends for housing, food, and general support. He had been unable to find work
despite applying for jobs within a 30-mile radius of his home. Ms. Burnett opined
that plaintiff had attention deficit disorder and needed frequent reminders “before
taking action.” A separate undated report adds that plaintiff struggled in the
workplace because other employees harassed him until he became angry and
managers generally did not support him when he reported harassment. (Tr. 36667). In another letter dated February 14, 2014, Ms. Burnett stated that plaintiff
displayed unpredictable “bouts of anger” that took hours or days to dissipate. (Tr.
On February 23, 2009, plaintiff sought treatment at the Earlham Medical
Clinic, in Earlham, Iowa, for depression, with complaints of decreased appetite and
sleep disturbance. (Tr. 395). He reported that he was going through a divorce.
After many years of alcohol and drug use, he had been “clean and sober” for 17
years. He had a long history of depression and several siblings had committed
suicide. Although he was not actively suicidal at the time, he expressed concern
about “following the same path.” The examiner noted that plaintiff was fully
oriented, his memory was intact, he displayed normal judgment and insight, and
his mood was neutral. Plaintiff was prescribed Citalopram, to start at 20 mg for a
week before increasing to 40 mg. He was given a referral for psychological
On March 23, 2009, Timothy P. Olson, M.D., completed an evaluation of
plaintiff’s depression. (Tr. 398-99). Plaintiff reported that his depression began
several months earlier when his wife of nine years requested a divorce. Plaintiff
reported that he had felt confused for several months. He returned to the
reservation in South Dakota but felt uncomfortable there and left. He was currently
living with friends in Earlham. Plaintiff reported that he had abused alcohol and
other substances in his teens and early twenties but had stopped about 16 years
earlier. He still attended substance abuse meetings and wanted to become a drug
and alcohol counselor. His depressive symptoms included insomnia and withdrawal.
He was unable to tolerate the higher dose of Citalopram. Nonetheless, he reported
that his sleep had improved and he felt more outgoing and optimistic. He hoped to
find work and get his own place to live. He did not work outside the home during
his marriage. He had previously worked in housekeeping. On mental status
examination, plaintiff was cooperative and oriented, his mood was neutral or
slightly depressed with appropriate affect, and he had good insight. His intelligence
was estimated to be in the normal or dull normal range. Plaintiff was directed to
continue taking 20 mg of Citalopram and return in two months. Dr. Olson
diagnosed plaintiff with Major Depression, single episode, versus Adjustment
Disorder with Depressed Mood; Mixed Substance Dependence, in remission. Plaintiff
was assigned a score of 58 on the Global Assessment of Functioning (GAF) scale.1
On June 26, 2009, Dr. Olson reported to the disability examiner that plaintiff had
not returned after his initial evaluation. Based on his single visit, Dr. Olson opined
that plaintiff would have no more than mild limitations in work-related abilities and
was capable of handling cash benefits. (Tr. 397).
On August 26, 2009, Arthur H. Konar, Ph.D., completed a consultative
psychological evaluation. (Tr. 400-03). Plaintiff had previously worked in janitorial
and “basic services” jobs. His last job had been as a motel bellman. He stated that
The GAF is determined on a scale of 1 to 100 and reflects the clinician’s judgment of an
individual’s overall level of functioning, taking into consideration psychological, social, and
occupational functioning. Impairments in functioning due to physical or environmental
limitations are not considered. American Psychiatric Association, Diagnostic & Statistical
Manual of Mental Disorders - Fourth Edition, Text Revision 32-33 (4th ed. 2000) (DSM-IV).
A GAF of 51-60 corresponds with “moderate symptoms (e.g., flat affect and circumstantial
speech, occasional panic attacks) OR difficulty in social, occupational or school functioning
(e.g., few friends, conflicts with peers or co-workers).” Id. at 34.
there were times “socially when I don’t want to be a janitor.” He had no savings
and was struggling to pay some overdue credit cards. He received food stamps and
medical assistance. Plaintiff showed Dr. Konar a newspaper article reporting on his
childhood abandonment, his mother’s alcohol abuse, and his current fight against a
development that threatened ancient burial grounds. He was placed in special
education throughout his schooling and reported that he was better at math than
reading. He had been sober for 17 years until a single relapse, weeks before the
evaluation, when he drank until he blacked out. Plaintiff’s depressive symptoms
concentration, tracking problems, and mood swings with anger and crying. He
described himself as feeling abandoned and stupid, and “a little piece of junk” to be
“kicked around.” He recently had suicidal thoughts and inclinations, but he did not
want to act on these thoughts. He did not display overt anxiety.
On examination, Dr. Konar described plaintiff as friendly and cooperative.
Plaintiff had a calm demeanor and made good eye contact but appeared “down and
out.” His speech was flowing but somewhat slowed. He “may have some cognitive
processing issues,” although he displayed a sense of humor and approached the
testing with good motivation. His performance on structured tasks showed “some”
impairment in concentration and tracking, “marginal” memory functioning, below
average verbal abstraction, and questionable judgment. Dr. Konar concluded that
there were “strong indications of borderline intellectual functioning, and/or learning
disabilities,” possibly due to fetal alcohol syndrome or alcohol abuse. Dr. Konar
Dependence in long-term remission with recent relapse; and possible Reading
Disorder and Borderline Intellectual Functioning. Dr. Konar assigned a GAF score of
45-50.2 With respect to work-related abilities, Dr. Konar opined that plaintiff was
cognitively able to remember and understand instructions, procedures, and
locations. However, his depression and cognitive issues impaired his abilities to
carry out instructions and maintain attention and concentration. As a result of his
“depressed posture” in combination with possible cognitive processing issues, he
was “a diffuse and somewhat unreliable communicator.” Thus, he was “only
variably able” to interact appropriately with others in a work setting, use good
judgment, or respond appropriately to changes in the work place. (Tr. 403)
On September 15, 2009, David Beeman, Ph.D., completed a Psychiatric
Review Technique. (Tr. 409-22). Based on the record, Dr. Beeman concluded that
plaintiff met the criteria for affective disorders (depressive syndrome) and
substance addiction disorders (alcohol dependence in overall remission with one
relapse). In a Mental Residual Functional Capacity Assessment, (Tr. 405-08), Dr.
Beeman found that plaintiff was moderately limited in the abilities to carry out
detailed instructions; maintain attention and concentration for extended periods;
complete a normal workday and workweek without interruptions and perform at a
consistent pace without an unreasonable number and length of rest periods; and
respond appropriately to changes in the work setting. In support of his conclusions,
Dr. Beeman noted that plaintiff had quit work due to depression arising from his
divorce. Plaintiff had not been psychiatrically hospitalized and there was no
evidence of a period of decompensation. Dr. Beeman noted that Dr. Konar
suggested possible borderline intellectual functioning while Dr. Olson had estimated
A GAF of 41-50 corresponds with “serious symptoms OR any serious impairment in social,
occupational, or school functioning.” DSM-IV at 34.Error! Main Document Only.
plaintiff’s intelligence as average to low average. Plaintiff’s participation in a project
defeating a development project and talks to school children regarding Native
American culture suggested grossly intact intellectual and social skills. In addition,
plaintiff’s self-report of daily activities was sufficiently detailed and coherent,
although academic limitations were evident. His memory was fair, he was able to
drive, and generally capable of managing his affairs. Dr. Beeman concluded that
plaintiff retained the ability to perform simple, routine, and repetitive work
functions when motivated to do so.3
The record contains no evidence that plaintiff sought further treatment until
May 2011 when he returned to the Earlham Medical Clinic with complaints of
depression. (Tr. 429-34). On May 2, 2011, plaintiff complained to Eve Harris, P.A.,
of decreased appetite, lack of enjoyment, a desire to sleep, and he was planning
suicide. He reported that a previous trial of Citalopram caused shaking and racing
thoughts. Ms. Harris prescribed Prozac. (Tr. 430). On May 16, 2011, plaintiff
reported that he had discontinued the Prozac because it made him too irritable. (Tr.
431-32). He was still experiencing significant insomnia, sadness, hopelessness,
immense fatigue, and lack of appetite and interest. He reported that he had
participated in outpatient counseling for six or seven months several years earlier
and found it unhelpful. He believed that he would be happy if he could live alone in
the woods and survive off the land. He continued to experience suicidal thoughts,
especially after two other people in town committed suicide. He agreed not to act
on his feelings. He was anxious about an upcoming disability hearing. (Tr. 429). On
In February 2010, Dr. Beeman’s Psychiatric Review Technique was affirmed as written
because plaintiff had not sought further treatment or reported any changes in his activities
of daily living. (Tr. 426).
examination, Ms. Harris reported that plaintiff was cooperative, depressed and
unkempt, but not in acute distress. His judgment in social situations was
inappropriate. He had impaired concentration and problem-solving. He recalled his
past history, had an appropriate fund of knowledge and appropriate vocabulary, but
was unaware of current events. He was started on Paroxetine and told to return in
There is no evidence that plaintiff returned to see Ms. Harris until August 15,
2011, when he sought treatment for a skin rash on his arm that he acquired after
getting a tattoo and then exposing the area to poison ivy while doing yard work.
On January 26, 2013, consultative psychologist Michael P. Baker, Ph.D.,
administered the Weschler Adult Intelligence Scale — 4th edition (WAIS-IV) and
completed a psychodiagnostic mental status evaluation. (Tr. 435-38). Plaintiff
reported that his longest period of employment was two years in 1989 when he
worked road construction. He also worked for Goodwill for two years in the early
1990s. In 2007, he worked as a school janitor for a year and a half and, in 2012,
he worked for a farmer for three months. Plaintiff reported that he was in three
chemical dependency treatment programs through 1991 and that he had not used
mood-altering substances for the past five years. He had stopped attending 12-step
programs in 2011. He had resided with his sponsor for the past two years. Plaintiff
did most of the cooking, housekeeping and laundry. He did not like to do the
grocery shopping because there were too many people in the stores. His driver’s
license was suspended due to unpaid child support.
Plaintiff’s scores on the WAIS-IV resulted in a Verbal IQ score of 91, a
Performance IQ score of 81, and a Full Scale IQ score of 78, which placed him in
the borderline range of intellectual functioning. He had significant weaknesses in
indices for Working Memory and Processing Speed and displayed a great deal of
variability across subscales, some of which could be attributed to a reading
disability. Plaintiff’s vocabulary and general fund of information were in the average
range which might create an unrealistic expectation of his overall intellectual
functioning. On mental status examination, plaintiff was cooperative, made good
eye contact, and displayed normal speech patterns. His affect was somewhat
restricted but not inappropriate. He was able to recall four out of four items after a
four-minute delay and could subtract serial threes from 20 but could not subtract
serial sevens from 100. He correctly spelled “world” backwards.
Dr. Baker gave plaintiff diagnoses of Major Depressive Disorder, moderate;
Alcohol Dependence in reported long-term remission; and Borderline Intellectual
Functioning. He assigned plaintiff a GAF score of 45.4 In a Medical Source
Statement, Dr. Baker opined that plaintiff had no restrictions in the abilities to
understand, remember, and carry out simple instructions or make judgments on
simple work-related decisions. He had mild restrictions in the abilities to understand
and remember complex instructions, interact appropriately with others in the
workplace, and respond appropriately to usual work situations and to changes in a
routine work setting. Finally, Dr. Baker opined that plaintiff had moderate
The record contains a letter written by Dr. Baker to plaintiff’s counsel regarding another
patient in which he states: “When I utilized the GAF score of 45, I did mean to indicate an
opinion that he would not be able to sustain employment activities.” (Tr. 455-56).
restrictions in the abilities to carry out complex and to make judgments on complex
work-related decisions. (Tr. 440-42).
C. Testimony at June 7, 2011 Hearing
Plaintiff was 43 years old at the time of the hearing. (Tr. 37). He was placed
in special education throughout his entire schooling and was not taught to read and
write. (Tr. 35). He acquired limited reading skills as an adult but was still unable to
do any math. Plaintiff spent about three years working on and learning about Native
American burial sites and visited schools once or twice a year to tell Native
American stories to children. (Tr. 41).
Plaintiff had previously worked as a janitor. He testified that he had difficulty
switching between tasks and required repeated explanations, which annoyed other
people. (Tr. 35). He stopped working in 2008 because he became depressed.
Plaintiff testified that he started drinking when he was 12 years old. He
stopped when he turned 21 after two arrests for driving while intoxicated. (Tr. 37).
He had had one relapse during his divorce. At the time of the hearing, plaintiff
reported that he was depressed and had suicidal feelings, although he had no plan
to act on these feelings. (Tr. 37-38). He was unable to focus and had difficulty with
his memory. He spent most of his time alone and avoided going out because he
was fearful about interacting with others. He also avoided going to AA meetings
unless they were very small. (Tr. 39-40). His doctor had recently prescribed
antidepressant medications but he had difficulty with side effects, including
insomnia and suicidal impulses. (Tr. 42-43).
When asked what problems kept him from working, plaintiff described
himself as antisocial and explained that he had trouble interacting with others
because he did not understand how to fit in. When asked whether he was able to
manage a simple job in which he worked alone, plaintiff testified that some days he
was too depressed to leave home.
Vocational Expert Roger F. Marquardt, M.Ed., testified about the employment
opportunities for a hypothetical individual of plaintiff’s age, educational background,
and work experience who required low-stress work, with no contact with the public
and only limited contact with coworkers. Such an individual would be able to
perform plaintiff’s past relevant work as a commercial or industrial cleaner. (Tr. 46,
368). Other unskilled work available to the hypothetical individual included lodging
cleaner and housekeeping, produce sorter, and labeler or ticketer. All work would
be precluded if the individual missed three or more days of work each month due to
mental impairments. (Tr. 47).
D. Testimony at the February 14, 2014 Hearing
Plaintiff testified that he had not worked since 2008. The ALJ noted that,
according to earnings records, he earned $3,325 in self-employment income in
2009. (Tr. 59; 305). Plaintiff asserted he had never earned that much money
cleaner/housekeeper; an aide at a recovery center for youth; and as a janitor. (Tr.
58-61). He testified that he held these positions for less than a year.
At the time of the hearing, plaintiff was not receiving treatment for his
mental conditions. He had briefly seen a psychiatrist about two years earlier but
stopped when the practice closed. (Tr. 66). Plaintiff testified that he continued to be
depressed and frequently contemplated suicide. (Tr. 69-70). He described himself
as fearful and very tense inside when he was around more than a few people
because he felt as though people were thinking bad things about him. (Tr. 67-68).
He generally tried to have someone accompany him if he went to the store.
Psychology expert Martin Oberlander, Ph.D., testified that reliable evidence in
the medical records supported three Listings: Listing 12.02 (organic disorders);5
Listing 12.04 (affective disorders);6 and Listing 12.09 (substance abuse disorders).
Dr. Oberlander opined that plaintiff had the capacity to engage in simple, routine,
repetitive work activities, consisting of no more than three steps, and would
function best when all instructions were communicated orally. Plaintiff was limited
to working in a low-stress environment without high production quotas or frequent
changes in tasks. (Tr. 78, 95). He was moderately limited in his capacity to engage
in activities which require more than occasional contact with others, and thus
should not have more than brief, superficial contact with a supervisor or work on
conjoint projects or as a member of a team. (Tr. 74, 78). He had the capacity to
engage in work activities for two-hour periods followed by a “slight break,” lasting
no longer than the usual workplace breaks. (Tr. 78, 92).
Vocational expert Steven Kuhn, M.A., was asked to identify the skill and
exertion levels of plaintiff’s past work. (Tr. 86-89). Mr. Kuhn characterized plaintiff’s
work at the recovery center as a light, semi-skilled job with a specific vocational
preparation (SVP) of 3 (Tr. 89), and his past housekeeping work as light and
unskilled. (Tr. 90). The ALJ asked Mr. Kuhn about the employment opportunities for
an individual of plaintiff’s age and education who could do simple, routine,
repetitive work; could not use written or detailed instructions; could tolerate no
Dr. Oberlander cited plaintiff’s fetal alcohol syndrome, reading disorder, borderline
intellectual functioning; and impulsive anger. (Tr. 71, 79).
Dr. Oberlander cited plaintiff’s diagnosis of depressive disorder, (Tr. 72), with anhedonia,
feelings of guilt or worthlessness, difficulty concentrating, thoughts of suicide, and
hallucinations, delusions or paranoid thinking. (Tr. 75-76).
more than superficial interaction with supervisors, coworkers, and the public;
required a low stress job with no productions quotas or without frequent changes in
the work routine; and could maintain concentration in two-hour segments.
90). Mr. Kuhn opined that such an individual could perform plaintiff’s past work as a
housekeeping cleaner. (Tr. 91). Generally, such jobs are found at motels. (Tr. 94).
Although cleaners generally are expected to complete a certain number of rooms
during a shift, Dr. Oberlander opined that this work was within plaintiff’s capacity.
Id. In response to questions from plaintiff’s counsel, Mr. Kuhn testified that a
person who could maintain attention for no more than one-third of the work day or
had outbursts lasting 10 to 20 minutes once a week would have difficulty
maintaining employment in the national economy. (Tr. 96).
III. The ALJ’s Decision
In the decision issued on March 13, 2014, the ALJ made the following
Plaintiff met the insured status requirements of the Social Security Act
through June 30, 2010.
Plaintiff did not engage in substantial gainful activity from his alleged
onset date of June 1, 2008.
Plaintiff has the following severe impairments: fetal alcohol syndrome,
functioning, a history of alcohol dependence in remission, and a
history of polysubstance abuse disorder in remission.
Plaintiff does not have an impairment or combination of impairments
that meet or medically equal the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Plaintiff has the residual functional capacity to perform a full range of
work at all exertional levels with the following nonexertional
limitations: he is limited to simple, routine, and repetitive low-stress
work without quotas and without frequent changes in routine. He is
limited to noncomplex, verbal instructions. He can maintain
concentration for two-hour segments. He can have brief superficial
contact with coworkers and supervisors and occasional contact with
Plaintiff is able to perform his past relevant work as a
cleaner/housekeeper. This work does not require the performance of
work-related activities precluded by his residual functional capacity.
Plaintiff has not been under a disability within the meaning of the
Social Security Act from June 1, 2008, through the date of the
The Court must affirm the Commissioner’s decision “if the decision is not
based on legal error and if there is substantial evidence in the record as a whole to
support the conclusion that the claimant was not disabled.” Long v. Chater, 108
F.3d 185, 187 (8th Cir. 1997). “Substantial evidence is less than a preponderance,
but enough so that a reasonable mind might find it adequate to support the
conclusion.” Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002) (quoting Johnson
v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001)). If, after reviewing the record, the
Court finds it possible to draw two inconsistent positions from the evidence and one
of those positions represents the Commissioner’s findings, the Court must affirm
the decision of the Commissioner. Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir.
2011) (quotations and citation omitted).
To be entitled to disability benefits, a claimant must prove he is unable to
perform any substantial gainful activity due to a medically determinable physical or
mental impairment that would either result in death or which has lasted or could be
expected to last for at least twelve continuous months. 42 U.S.C. § 423(a)(1)(D),
(d)(1)(A); Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009). The
Commissioner has established a five-step process for determining whether a person
is disabled. See 20 C.F.R. § 404.1520; Moore v. Astrue, 572 F.3d 520, 523 (8th Cir.
2009). “Each 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).
Steps one through three require the claimant to prove (1) he is not currently
engaged in substantial gainful activity, (2) he suffers from a severe impairment,
and (3) his disability meets or equals a listed impairment. Pate-Fires, 564 F.3d at
942. If the claimant does not suffer from a listed impairment or its equivalent, the
Commissioner’s analysis proceeds to steps four and five. Id.
APrior to step four, the ALJ must assess the claimant=s residual functioning
capacity (>RFC=), which is the most a claimant can do despite her limitations.@
Moore, 572 F.3d at 523 (citing 20 C.F.R. ' 404.1545(a)(1)).
“RFC is an
administrative assessment of the extent to which an individual’s medically
determinable impairment(s), including any related symptoms, such as pain, may
cause physical or mental limitations or restrictions that may affect his or her
capacity to do work-related physical and mental activities.” Social Security Ruling
(SSR) 96-8p, 1996 WL 374184, *2. “[A] claimant’s RFC [is] based on all relevant
evidence, including the medical records, observations by treating physicians and
others, and an individual’s own description of his limitations.” Moore, 572 F.3d at
523 (quotation and citation omitted).
In determining a claimant’s RFC, the ALJ must evaluate the claimant’s
credibility. Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2002). This evaluation requires that the
ALJ consider “(1) the claimant’s daily activities; (2) the duration, intensity, and
frequency of the pain; (3) the precipitating and aggravating factors; (4) the
restrictions; (6) the claimant’s work history; and (7) the absence of objective
medical evidence to support the claimant’s complaints.” Buckner v. Astrue, 646
F.3d 549, 558 (8th Cir. 2011) (quotation and citation omitted). “Although ‘an ALJ
may not discount a claimant’s allegations of disabling pain solely because the
objective medical evidence does not fully support them,’ the ALJ may find that
these allegations are not credible ‘if there are inconsistencies in the evidence as a
whole.’” Id. (quoting Goff v. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005)). After
considering the seven factors, the ALJ must make express credibility determinations
and set forth the inconsistencies in the record which caused the ALJ to reject the
claimant’s complaints. Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000); Beckley v.
Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998).
At step four, the ALJ determines whether claimant can return to his past
relevant work, “review[ing] [the claimant’s] [RFC] and the physical and mental
demands of the work [claimant has] done in the past.” 20 C.F.R. § 404.1520(e).
The burden at step four remains with the claimant to prove his RFC and establish
that he cannot return to his past relevant work. Moore, 572 F.3d at 523; accord
Dukes v. Barnhart, 436 F.3d 923, 928 (8th Cir. 2006); Vandenboom v. Barnhart,
421 F.3d 745, 750 (8th Cir. 2005).
If the ALJ holds at step four of the process that a claimant cannot return to
past relevant work, the burden shifts at step five to the Commissioner to establish
that the claimant maintains the RFC to perform a significant number of jobs within
the national economy. Banks v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001). See
also 20 C.F.R. § 404.1520(f).
If the claimant is prevented by his impairment from doing any other work,
the ALJ will find the claimant to be disabled.
Plaintiff asserts that the ALJ improperly assessed his credibility and did not
include all medically supported mental limitations in the residual functional capacity
Credibility determinations are the province of the ALJ, and as long as “good
reasons and substantial evidence” support the ALJ’s evaluation of credibility, the
Court will defer to the ALJ’s decision. Julin v. Colvin, --- F.3d ---, 2016 WL
3457265, at *2 (8th Cir. June 24, 2016) (quoting Guilliams v. Barnhart, 393 F.3d
798, 801 (8th Cir. 2005)). An ALJ may decline to credit subjective complaints “if
the evidence as a whole is inconsistent with the claimant’s testimony.” Id. (quoting
Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006)).
In evaluating a claimant’s subjective complaints, the ALJ is required to
consider all of the evidence, including objective medical evidence, the claimant’s
work history and the factors set out by Polaski v. Heckler, 739 F.2d 1320 (8th Cir.
1984): “(1) the claimant’s daily activities; (2) the subjective evidence of the
duration, frequency, and intensity of the claimant’s pain; (3) any precipitating or
aggravating factors; (4) the dosage, effectiveness and side effects of any
medication; and (5) the claimant’s functional restrictions.” Masterson v. Barnhart,
363 F.3d 731, 738 (8th Cir. 2004) (citing Polaski, 739 F.2d at 1322). “When
rejecting a claimant’s complaints of pain, the ALJ must make an express credibility
determination, detailing the reasons for discounting the testimony, setting forth the
inconsistencies, and discussing the Polaski factors.” Renstrom v. Astrue, 680 F.3d
1057, 1066 (8th Cir. 2012) (citation omitted). “[A]n ALJ may not discount a
claimant’s subjective complaints solely because the objective medical evidence does
not fully support them.” Id. (alteration in original; citation omitted).
The ALJ found that plaintiff’s subjective complaints were “out of proportion”
with objective medical evidence. For example, the ALJ noted Dr. Olson’s 2009
opinion that plaintiff had no more than mild work-related limitations. In addition,
the ALJ noted that plaintiff did not seek treatment until 2009, nearly nine months
after his alleged onset date. Indeed, the record reflects that, between February
2009 and January 2013, plaintiff had a total of four encounters for treatment of
depression. This low frequency of treatment is inconsistent with allegations of
disabling symptoms. In addition, in March 2009 and May 2011, plaintiff failed to
keep appointments to check on the efficacy and side effects of the antidepressant
medications he was prescribed. See Guilliams v. Barnhart, 393 F.3d 798, 802 (8th
Cir. 2005) (addressing failure to follow recommended course of treatment in
credibility analysis). There is no indication that plaintiff complained of depression in
August 2009 when he sought treatment for a skin rash. Plaintiff suggests that his
poor treatment record should not be weighed against his credibility because he
lacked the financial resources to obtain treatment. However, he had medical
assistance in 2009 and nonetheless failed to follow through with treatment.
The ALJ considered other inconsistencies that detracted from plaintiff’s
credibility. (Tr. 21-22). For example, he was vague regarding his documented past
earnings. In addition, Ms. Burnett’s reports regarding the severity of plaintiff’s
lifelong problems arising from fetal alcohol syndrome were inconsistent with
plaintiff’s prior ability to perform significant work in 2005 and 2006. With respect to
plaintiff’s assertion that he was quite isolated in the performance of that job, the
RFC accounted for his social difficulties by limiting contact with others. After
considering the evidence in the record, the ALJ was “convinced that [plaintiff’s]
condition has waxed and waned over the course of the relevant period, but was not
at a very serious level for more than one year as required by the Act.” Furthermore,
“the records indicate that the claimant began seeking mental health treatment
related to intense situational stressors . . . which would reasonably prompt people
without impairments to seek counsel.” (Tr. 21-22).
The ALJ’s credibility determination is supported by substantial evidence in the
record as a whole.
A claimant’s RFC is “the most a claimant can still do despite his or her
physical or mental limitations.” Martise v. Astrue, 641 F.3d 909, 923 (8th Cir. 2011)
(internal quotations, alteration and citations omitted). “The ALJ bears the primary
responsibility for determining a claimant’s RFC and because RFC is a medical
question, some medical evidence must support the determination of the claimant’s
RFC.” Id. (citation omitted). The ALJ should obtain medical evidence that addresses
the claimant’s “ability to function in the workplace.” Lauer v. Apfel, 245 F.3d 700,
704 (8th Cir. 2001) (quoting Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000)).
“However, the burden of persuasion to prove disability and demonstrate RFC
remains on the claimant.” Id. Even though the RFC assessment draws from medical
sources for support, it is ultimately an administrative determination reserved to the
Commissioner. Cox v. Astrue, 495 F.3d 614, 619 (8th Cir. 2007) (citing 20 C.F.R.
§§ 416.927(e)(2), 416.946 (2006)).
In formulating the RFC, the ALJ accounted for the limitations on plaintiff’s
capacities to focus, tolerate the presence of other people, read, remember
instructions, and cope with change. To the extent that plaintiff asserts that he has
additional limitations not accounted for in the RFC, the ALJ appropriately rejected
further restrictions based on her assessment of plaintiff’s credibility. Plaintiff also
argues that Dr. Oberlander testified that he needs to take “indeterminate breaks”
every two hours, thereby precluding employment. However, Dr. Oberlander actually
testified that plaintiff was able to sustain work activities for two-hour periods
followed by a “slight break,” of a duration within the expected norms of the jobs
identified by the Vocational Expert.
Plaintiff argues that the ALJ did not give appropriate weight to the opinions of
Dr. Konar and Dr. Baker. The ALJ gave reduced weight to Dr. Konar’s opinion based
on her assessment of plaintiff’s credibility combined with his lack of regular
treatment. This was permissible. See Julin, 2016 WL 3457265, at *4 (ALJ entitled
to discount physician’s opinion to the extent that it was based on plaintiff’s
subjective complaints). Plaintiff argues that the ALJ gave insufficient weight to Dr.
Baker’s assessment that his GAF was 45, which suggests serious symptoms or
impairments. However, in his assessment of plaintiff’s work-related functioning, Dr.
Baker found no areas of marked or extreme limitation. The RFC fully accounted for
Dr. Baker’s findings that plaintiff was moderately limited with respect to the abilities
to carry out complex instructions and make judgments on complex decisions. The
Plaintiff argues that Dr. Baker stated that by assigning a GAF of 45 he intended to
indicate an inability to sustain employment. Dr. Baker’s statement was made
regarding another patient and thus is not relevant to the issues in this case.
The RFC determination is supported by substantial evidence in the record as
For the reasons discussed above, the Court finds that the Commissioner’s
decision is supported by substantial evidence in the record as a whole.
IT IS HEREBY ORDERED that the decision of the Commissioner is
A separate Judgment in accordance with this Memorandum and Order will be
entered this same date.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 2nd day of September, 2016.
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