Merchant v. Colvin
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and Plaintiffs Complaint is DISMISSED with prejudice. Signed by Magistrate Judge Noelle C. Collins on 03/27/2017. (KCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
TRACY O. MERCHANT,
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Case No. 4:15CV01652NCC
MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision
of the Commissioner denying the application of Tracy O. Merchant (“Plaintiff”) for Disability
Insurance Benefits (“DIB”) under Title II of the Social Security Act (“the Act”), 42 U.S.C. §§
401 et seq., and for Supplemental Security Income (“SSI”) under Title XVI of the Social
Security Act, 42 U.S.C. §§ 1381 et seq. Plaintiff has filed a brief in support of the Complaint
(Doc. 13), Defendant has filed a brief in support of the Answer (Doc. 18), and Plaintiff has filed
a reply brief (Doc. 19). The parties have consented to the jurisdiction of the undersigned United
States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c) (Doc. 8).
I. PROCEDURAL HISTORY
Plaintiff filed his applications for DIB and SSI on January 13, 2011 (Tr. 256-68).
Plaintiff was initially denied on March 29, 2011, and he filed a Request for Hearing before an
Administrative Law Judge (“ALJ”) on April 11, 2011 (Tr. 128-39). After a hearing, by decision
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).
dated November 30, 2012, the ALJ found Plaintiff not disabled (Tr. 101-20). On January 8,
2014, the Appeals Council granted Plaintiff’s request for review and remanded his case to the
ALJ (Tr. 121-25). A second hearing was held on March 27, 2014 and, by decision dated April
24, 2014, the ALJ again found Plaintiff not disabled (Tr. 10-31, 32-56). On October 9, 2015, the
Appeals Council denied Plaintiff’s request for review (Tr. 1-3). As such, the ALJ’s April 24,
2014 decision stands as the final decision of the Commissioner.
II. DECISION OF THE ALJ
The ALJ determined that Plaintiff meets the insured status requirements of the Social
Security Act through June 30, 2013, and had not engaged in substantial gainful activity since
February 1, 2010, the alleged onset date of disability (Tr. 15). The ALJ found Plaintiff has the
severe impairments of fracture of the left tibia, by history; history of bilateral inguinal hernia
repairs; depression; posttraumatic stress disorder (PTSD); and questionable history of mild
impairment in intellectual functioning, but that no impairment or combination of impairments
met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404,
Subpart P, Appendix 1 (Tr. 15-16).
After considering the entire record, the ALJ determined Plaintiff has the residual
functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 404.1567(b) and
416.967(b) with the following limitations (Tr. 17). He will only occasionally be able to climb
stairs and ramps; he will be unable to climb ropes, ladders, and scaffolding; he will only
occasionally be able stoop, kneel, crouch, and crawl; he will be limited to no repetitive use of
foot controls on the left side; he will need to avoid concentrated exposure to extreme cold; and
he will need to avoid concentrated exposure to unprotected heights (Id.). Plaintiff is able to
understand, remember, and carry out at least simple instructions and non-detailed tasks (Id.).
Plaintiff is able to respond appropriately to supervisors and co-workers in a task oriented setting
where contact with others is casual and infrequent (Id.). Plaintiff can perform work at normal
pace without production quotas (Id.). Plaintiff should not work in a setting which includes
constant/regular contact with the general public (Id.). Plaintiff should not perform work which
includes more than infrequent handling of customer complaints (Id.).
Plaintiff should not
perform work which requires more than limited reading skills (Id.). The ALJ found Plaintiff
unable to perform any past relevant work, but that there are jobs that exist in significant numbers
in the national economy that he can perform, including production worker (Dictionary of
Occupational Titles (“DOT”)2 occupational code 739.684-094) and cleaner/laundry worker
(DOT occupational code 302.685-010) (Tr. 23-24). Thus, the ALJ concluded that a finding of
“not disabled” was appropriate (Tr. 24). Plaintiff appeals, arguing a lack of substantial evidence
to support the Commissioner’s decision.
III. LEGAL STANDARD
Under the Social Security Act, the Commissioner has established a five-step process for
determining whether a person is disabled. 20 C.F.R. §§ 416.920, 404.1529. “‘If a claimant fails
to meet the criteria at any step in the evaluation of disability, the process ends and the claimant is
determined to be not disabled.’” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting
Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the
claimant first cannot be engaged in “substantial gainful activity” to qualify for disability benefits.
20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant must have a severe impairment. 20
C.F.R. §§ 416.920(c), 404.1520(c). The Social Security Act defines “severe impairment” as
“any impairment or combination of impairments which significantly limits [claimant’s] physical
U.S. Department of Labor (4th ed. rev.1991). The Social Security Administration takes
administrative notice of the DOT. See 20 C.F.R. §§ 404.1566(d)(1), 416.966(d)(1).
or mental ability to do basic work activities. . . .” Id. “‘The sequential evaluation process may
be terminated at step two only when the claimant’s impairment or combination of impairments
would have no more than a minimal impact on [his or] her ability to work.’” Page v. Astrue, 484
F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir.
2001), citing Nguyen v. Chater, 75 F.3d 429, 430-31 (8th Cir. 1996)).
Third, the ALJ must determine whether the claimant has an impairment which meets or
equals one of the impairments listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d).
If the claimant has one of, or the medical equivalent of, these impairments, then the claimant is
per se disabled without consideration of the claimant’s age, education, or work history. Id.
Fourth, the impairment must prevent the claimant from doing past relevant work. 20
C.F.R. §§ 416.920(f), 404.1520(f). The burden rests with the claimant at this fourth step to
establish his or her RFC. Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008) (“Through step
four of this analysis, the claimant has the burden of showing that she is disabled.”). The ALJ
will review a claimant’s RFC, and the physical and mental demands of the work the claimant has
done in the past. 20 C.F.R. § 404.1520(f).
Fifth, the severe impairment must prevent the claimant from doing any other work. 20
C.F.R. §§ 416.920(g), 404.1520(g). At this fifth step of the sequential analysis, the
Commissioner has the burden of production to show evidence of other jobs in the national
economy that can be performed by a person with the claimant’s RFC. Steed, 524 F.3d at 874
n.3. If the claimant meets these standards, the ALJ will find the claimant to be disabled. “The
ultimate burden of persuasion to prove disability, however, always remains with the claimant.”
Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). See also Harris v. Barnhart, 356 F.3d
926, 931 n.2 (8th Cir. 2004) (citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v.
Barnhart, 377 F.3d 801, 806 (8th Cir. 2004) (“The burden of persuasion to prove disability and
to demonstrate RFC remains on the claimant, even when the burden of production shifts to the
Commissioner at step five.”). Even if a court finds that there is a preponderance of the evidence
against the ALJ’s decision, the decision must be affirmed if it is supported by substantial
evidence. Clark v. Heckler, 733 F.2d 65, 68 (8th Cir. 1984). “Substantial evidence is less than a
preponderance but is enough that a reasonable mind would find it adequate to support the
Commissioner’s conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002). See
also Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007).
It is not the job of the district court to re-weigh the evidence or review the factual record
de novo. Cox, 495 F.3d at 617. Instead, the district court must simply determine whether the
quantity and quality of evidence is enough so that a reasonable mind might find it adequate to
support the ALJ’s conclusion. Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing
McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). Weighing the evidence is a function of
the ALJ, who is the fact-finder. Masterson v. Barnhart, 363 F.3d 731, 736 (8th Cir. 2004).
Thus, an administrative decision which is supported by substantial evidence is not subject to
reversal merely because substantial evidence may also support an opposite conclusion or because
the reviewing court would have decided differently. Krogmeier, 294 F.3d at 1022.
To determine whether the Commissioner’s final decision is supported by substantial
evidence, the court is required to review the administrative record as a whole and to consider:
(1) Findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating physicians;
(4) The subjective complaints of pain and description of the claimant’s physical activity
(5) The corroboration by third parties of the claimant’s physical impairment;
(6) The testimony of vocational experts based upon proper hypothetical questions which
fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dep’t of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).
In his appeal of the Commissioner’s decision, Plaintiff raises two issues. First, Plaintiff
alleges the ALJ inappropriately relied on vocational expert (“VE”) testimony that was in conflict
with the DOT in ways that were not recognized or addressed by either the ALJ or the VE (Doc.
13 at 7). Second, Plaintiff argues that the ALJ erred in assigning the opinions of Dr. Syed Raza
and Dr. Erickson T. Smith “minimal weight” because he failed to properly consider the
mandatory factors for weighing treating physician opinions that are not considered controlling
(Id. at 12). For the following reasons, the Court finds that Plaintiff’s arguments are without
merit, and that the ALJ’s decision is based on substantial evidence and is consistent with the
Regulations and case law.
A. Potential Conflict Regarding VE Testimony
First, Plaintiff asserts that the ALJ inappropriately relied on VE testimony that was in
conflict with the DOT in ways that were not recognized or addressed by either the ALJ or the VE
(Doc. 13 at 7). Specifically, Plaintiff argues that the ALJ found that there are jobs that exist in
significant numbers in the national economy that Plaintiff can perform, including production
worker (DOT occupational code 739.684-094) and cleaner/laundry worker (DOT occupational
code 302.685-010), which require reading instructions (Id. at 9-10). Plaintiff, relying on Moore
v. Colvin, 769 F.3d 987 (8th Cir. 2014) and Latragna v. Colvin, No. 4:14 CV 496 JMB, 2015
WL 4771630 (E.D. Mo. Aug. 12, 2015), argues that this reading requirement creates an
“apparent conflict” with the ALJ’s RFC which restricted Plaintiff from work which requires
more than limited reading skills (Id.).
In his RFC determination, the ALJ restricted Plaintiff from work which requires more
than limited reading skills. The ALJ thereafter determined that Plaintiff is unable to perform any
past relevant work, but that there are jobs that exist in significant numbers in the national
economy that Plaintiff can perform, including production worker (DOT occupational code
739.684-094) and cleaner/laundry worker (DOT occupational code 302.685-010). The ALJ also
indicated, “[p]ursuant to SSR 00-4p, the undersigned has determined that the vocational expert’s
testimony is consistent with the information contained in the Dictionary of Occupational Titles”
(Tr. 24). In doing so, the ALJ relied on the testimony of vocational expert Dr. Michael
Mckeenman (“Dr. Mckeenman”) (See Tr. 49-56).
During the March 27, 2014 hearing, the ALJ presented Dr. Mckeenman with one
hypothetical which included the following limitation: “[Plaintiff] also has limited reading skills
so that any job that he might be able to work would not involve a significant amount of reading”
(Tr. 52-53). Dr. Mckeenman asked for clarification, “meaning that should not be a critical
component of the job?” (Tr. 53). The ALJ responded in the affirmative (Id.). Dr. Mckeenman
then testified that Plaintiff could perform “production type work” (DOT occupational code
739.684-094), packaging work (DOT occupational code 784.687-042), and a cleaning job (DOT
occupational code 302.685-010) (Id.). At the end of the ALJ’s questioning of the Dr.
Mckeenman, the ALJ asked the Dr. Mckeenman, “Has your testimony today been consistent
with the DOT and Selected Characteristics of Occupations?” (Tr. 54). Dr. Mckeenman
responded in the affirmative (Id.). Plaintiff did not raise any objections to Dr. Mckeenman’s
testimony at the hearing.
Social Security Ruling 00-4p requires an ALJ who takes testimony from a vocational
expert about the requirements of a particular job to determine whether that testimony is
consistent with the DOT. SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000). The ALJ must
ask the VE if there is a conflict. Id. If there is an apparent conflict, the ALJ must then “elicit a
reasonable explanation for the conflict before relying on the VE . . . evidence to support a
determination or decision about whether the claimant is disabled.” Id. at *2-*3. The ALJ must
also explain in his decision how he resolved the conflict. Id. at *3. Accordingly, “an ALJ cannot
rely on expert testimony that conflicts with the job classifications in the [DOT] unless there is
evidence in the record to rebut those classifications.” Jones ex rel. Morris v. Barnhart, 315 F.3d
974, 979 (8th Cir. 2003) (citing Porch v. Chater, 115 F.3d 567, 572 (8th Cir.1997)).
In Moore, the claimant’s RFC limited him to only occasional overhead reaching. 769
F.3d at 989. The VE testified that such a claimant could perform janitorial or cafeteria attendant
work. Id. However, the VE failed to address the claimant's limitations on reaching when she
recommended the job of “cafeteria attendant,” which is defined in the DOT as involving frequent
reaching. Id. The Eighth Circuit found that there was an “ʻapparent unresolved conflict’
between the VE testimony and the DOT,” and the ALJ failed to elicit a sufficient explanation to
resolve that conflict. Id. at 989-90 (citing SSR 00-4p, 2000 WL 1898704, at *2-4). It was not
sufficient in Moore to simply ask the VE if her testimony was consistent with the DOT. Id. at
990. As a result, the matter was remanded because “the Commissioner failed to meet her burden
… [at] step five.” Id. Similarly, largely relying on Moore, the Court in Latragna found an
apparent unresolved conflict with the ALJ’s RFC assessment when the plaintiff was limited to
“simple verbal instructions,” but the VE testified that plaintiff could do the job of cafeteria
attendant which required the plaintiff to “[a]pply common sense understanding, to carry out
detailed but uninvolved written oral (sic) instructions.” Latragna, 2015 WL 4771630, at *18.
The Court finds that the reading requirements of the jobs identified by the VE, and relied
upon by the ALJ in his determination, do not create an apparent, unresolved conflict with the
Plaintiff’s RFC. The Eighth Circuit directs the Court to treat the DOT as “generic job
descriptions that offer the approximate maximum requirements for each position, rather than
their range.” Welsh v. Colvin, 765 F.3d 926, 929 (8th Cir. 2014). Both the jobs of production
worker and cleaner/laundry worker,3 as described in the DOT and its companion volume, the
Selected Characteristics of Occupations (“SCO”),4 require the language skills of General
Educational Development language level of 1 (“GED-L-1”) (Docs. 13-2 at 2, 13-3 at 2). The
lowest level of language development contemplated by the DOT, a GED-L-1 requires an
individual to have the ability to “[r]ead at a rate of 95-120 words per minute” (Id.). See also
DOT, App. C—Components of the Definition Trailer, 1991 WL 688702 (describing the General
Educational Development scale). Both jobs also require the ability to “[a]pply common sense
understanding, to carry out detailed but uninvolved written [or]5 oral instructions” (Docs. 13-2 at
Although the VE identified three positions, the ALJ only relied on two of the three positions in
making his determination. Accordingly, the Court will only address the two positions addressed
by the ALJ in his opinion.
Plaintiff provided exhibits purporting to reflect the requirements of the DOT and SCO for the
job listings the VE provided – inspector-packer (DOT number 784.687-042), production worker
(DOT number 739.684-094), and cleaner/laundry worker (DOT occupational code 302.685-010)
(Docs. 13-1, 13-2, 13-3). In her response to Plaintiff’s arguments, the Commissioner does not
dispute the veracity or accuracy of Plaintiff’s exhibits. Accordingly, the Court relies on the
exhibits in considering this matter.
See Dictionary of Occupational Titles, 739.684-094 Lamp-Shade Assembler (4th ed. rev.
1991); Dictionary of Occupational Titles, 739.684-094 Lamp-Shade Assembler (4th ed. rev.
1991) (properly including “or”).
1, 13-3 at 1). Therefore, although the ALJ restricted Plaintiff from work requiring more than
limited reading skills, the ALJ did not restrict Plaintiff from all reading, and the reading
requirement, while more than none, is the lowest level reading requirement possible. C.f. Burton
v. Astrue, No. 2:11-CV-174-GZS, 2012 WL 1184425, at *2 (D. Me. Apr. 6, 2012), report and
recommendation adopted, No. 2:11-CV-174-GZS, 2012 WL 1415616 (D. Me. Apr. 24, 2012)
(internal quotation marks omitted) (finding a conflict when an ALJ determines plaintiff to be
functionally illiterate but, per the DOT, the three jobs recommended by the VE required a GEDL-1, which, with respect to reading, entails “recognizing the meaning of 2,500 (two- or threesyllable) words, reading at a rate of 95–120 words per minute, and comparing similarities and
differences between words and between series of numbers.”). Furthermore, while the positions
both require Plaintiff to carry out detailed but uninvolved instructions, the DOT indicates that
these instructions can be “written or oral” (emphasis added) (See DOT, supra note 4). Finally, to
the extent Plaintiff asserts that the ALJ failed to address any topics about which the DOT and
SCO are nonspecific, the Court notes that SSR 00-4p only applies to “apparent actual conflicts.”
Latragna, 2015 WL 4771630, at *18.
B. The Opinions of Dr. Syed Raza and Dr. Erickson T. Smith
Next, Plaintiff asserts the ALJ erred in assigning the opinions of Dr. Syed Raza (“Dr.
Raza”) and Dr. Erickson T. Smith (“Dr. Smith”) “minimal weight” because he failed to properly
consider the mandatory factors for weighing treating physician opinions6 that are not considered
controlling (Doc. 13 at 12).
The Parties do not dispute that Dr. Raza and Dr. Smith are Plaintiff’s treating physicians (See
Doc. 13 at 2 and Doc. 18 at 5).
In a Mental Medical Source Statement dated February 6, 2012 (Tr. 852-55), Dr. Raza,
Plaintiff’s treating psychiatrist, opined Plaintiff has extreme7 limitations in his functioning with
regard to his activities of daily living, social functioning, and concentration, persistence, or pace
(Tr. 852-53). Specifically, Dr. Raza indicated extreme limitations in Plaintiff’s ability to: behave
in an emotionally stable manner; maintain reliability, relate to family, peers, or caregivers;
interact with strangers or the general public; accept instructions or respond to criticism; maintain
socially acceptable behavior; maintain attention and concentration for extended periods; perform
at a consistent pace with an unreasonable number and length of breaks; sustain an ordinary
routine without special supervision; and respond to changes in work setting (Id.). Dr. Raza also
indicated that Plaintiff could not sustain the following for more than 0-2 hours five days per
week: apply commonsense understanding to carry out simple one- or two-step instructions;
interact appropriately with coworkers; interact appropriately with supervisors; and interact
appropriately with the general public (Tr. 854). Dr. Raza further opined Plaintiff’s
psychologically based symptoms would cause him to miss three or more days of work a month,
and to be late to work or need to leave work early three or more times a month (Tr. 854-55).
In a Mental Medical Source Statement dated February 3, 2012 (Tr. 848-51), Dr. Smith,
Plaintiff’s treating psychologist and therapist, similarly opined Plaintiff has extreme8 limitations
in his functioning with regard to his activities of daily living, social functioning, and
concentration, persistence, or pace (Tr. 848-49). Specifically, Dr. Smith indicated extreme
limitations in Plaintiff’s ability to: behave in an emotionally stable manner; maintain reliability;
relate to family, peers, or caregivers; interact with strangers or the general public; accept
Extreme is defined on the form as “Limitation that totally precludes the individual’s ability to
usefully perform the activity or to sustain performance of the activity” (Tr. 852).
See supra note 6 (Tr. 848).
instructions or respond to criticism; maintain socially acceptable behavior; maintain attention
and concentration for extended periods; perform at a consistent pace with an unreasonable
number and length of breaks; sustain an ordinary routine without special supervision; and
respond to changes in work setting (Id.). Dr. Smith also indicated that Plaintiff could not sustain
the following for more than 0-2 hours five days per week: apply commonsense understanding to
carry out simple one- or two-step instructions; interact appropriately with coworkers; interact
appropriately with supervisors; and interact appropriately with the general public (Tr. 850). Dr.
Smith further opined Plaintiff’s psychologically based symptoms would cause him to miss three
or more days of work a month, and to be late to work or need to leave work early three or more
times a month (Tr. 850-51).
“A treating physician’s opinion regarding an applicant’s impairment will be granted
controlling weight, provided the opinion is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the
record.” Reece v. Colvin, 834 F.3d 904, 908-09 (8th Cir. 2016) (internal quotations omitted).
“Although a treating physician's opinion is usually entitled to great weight, it ‘do[es] not
automatically control, since the record must be evaluated as a whole.’ ” Id. (quoting Prosch v.
Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000)). “A treating physician's own inconsistency may
undermine his opinion and diminish or eliminate the weight given his opinions.” Milam v.
Colvin, 794 F.3d 978, 983 (8th Cir. 2015) (internal quotation marks omitted). “Whether the ALJ
gives the opinion of a treating physician great or little weight, the ALJ must give good reasons
for doing so.” Prosch, 201 F.3d at 1013 (citing 20 C.F.R. § 404.1527(d)(2)).
The Court finds that the ALJ gave proper weight to the opinions of Dr. Smith and Dr.
Raza. The ALJ addressed the medical source statements together and afforded the opinions of
Dr. Smith and Dr. Raza “minimal weight” (Tr. 22). Although the ALJ did not address all of the
non-controlling factors found in 20 C.F. R. §§ 404.1527(c), 416.927(c), 9 the ALJ is not required
to cite specifically to the regulations but need only clarify whether he discounted the opinions
and why. Kientzy v. Colvin, No. 4:15 CV 707 JMB, 2016 WL 4011322, at *8 (E.D. Mo. July 27,
2016) (citing Grable v. Colvin, 770 F.3d 1196, 1201-02 (8th Cir. 2014)). In this case, the ALJ
provided a detailed inquiry of the nearly identical medical source statements. The ALJ found the
opinions “indicated the claimant to be with marked to extreme limitations of functioning due to
emotional/mental impairment” but that the record did not support the degree of limitation
advanced (Tr. 22). Specifically, “[t]he claimant routinely has been assessed throughout his
claimed disability as functioning at a level commensurate with a [Global assessment of
functioning (“GAF”)]10 ranging from 60 to 70, and he is longitudinally with relatively
unremarkable mental status findings” (Id.). Indeed, the ALJ provides a lengthy analysis detailing
If a treating physician's opinion is not given controlling weight, the amount of weight given to
it “is to be governed by a number of factors [contained in 20 C.F.R. § 416.927(c) (applying to
claims for DIB) or 20 C.F.R. 416.3927(c) (applying to claims for SSI)] including the examining
relationship, the treatment relationship, consistency, specialization, and other factors.” Shontos
v. Barnhart, 328 F.3d 418, 426 (8th Cir. 2003).
Global assessment of functioning (GAF) is the clinician=s judgment of the individual=s overall
level of functioning, not including impairments due to physical or environmental limitations.
See Diagnostic and Statistical Manual of Mental Disorders, DSM-IV, 32-34 (4th ed. rev. 2000).
Expressed in terms of degree of severity of symptoms or functional impairment, GAF scores of
31 to 40 represent Asome impairment in reality testing or communication or major impairment in
several areas, such as work or school, family relations, judgment, thinking, or mood,@ 41 to 50
represents Aserious,@ scores of 51 to 60 represent Amoderate,@ scores of 61 to 70 represent Amild,@
and scores of 90 or higher represent absent or minimal symptoms of impairment. Id. at 32. See
also Brown v. Astrue, 611 F.3d 941, 955 (8th Cir. 2010) (A[A] GAF score of 65 [or 70] . . .
reflects >some mild symptoms (e.g. depressed mood or mild insomnia) OR some difficulty in
social, occupational, or school functioning . . . but generally functioning pretty well, has some
meaningful interpersonal relationships.=@) (quoting Kohler v. Astrue, 546 F.3d 260, 263 (2d Cir.
2008) (quoting Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. rev. 2000)
(alterations in original). See also Goff, 421 F.3d at 789, 791, 793 (affirming where court held
GAF of 58 was inconsistent with doctor’s opinion that claimant suffered from extreme
limitations; GAF scores of 51-60 supported ALJ’s limitation to simple, routine, repetitive work).
the support from the record for these conclusions (See Tr. 19-21). For example, the ALJ notes,
and the record supports, that during Plaintiff’s treatment at the Hopewell Center in May, August,
and November 2013, physicians indicated that Plaintiff had an anxious and worried mood and,
while this is supportive of some degree of limitation, during this same period, Plaintiff’s overall
diagnostic impression remained unchanged and he continued to function at a GAF level of 60.
Physicians also noted an absence in any abnormalities of appearance, demeanor, speech, thought
processing, thought content, orientation, or cognitive functioning (Tr. 20, 1377-78, 1383-84,
1388-89). Accordingly, the ALJ properly offered a sufficient basis to give the opinion “nonsubstantial weight” in addition to “[non-]controlling weight.” See Papesh v. Colvin, 786 F.3d
1126, 1132 (8th Cir. 2015) (emphasis in original) (internal citations omitted) (finding error when
the ALJ offered no basis to give an opinion non-substantial weight; “For example, the ALJ did
not find the opinion inconsistent with the record or another [of the physician’s own]
Finally, as is the case here, “[i]t is appropriate to give little weight to statements of
opinion by a treating physician that consist of nothing more than vague, conclusory statements.”
Swarnes v. Astrue, Civ. No. 08–5025–KES, 2009 WL 454930, at *11 (D.S.D. Feb. 23, 2009)
(citation omitted); see also Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010) (finding that
the ALJ properly discounted a treating physician's opinion where it consisted of checklist forms,
cited no medical evidence, and provided little to no elaboration).
For the reasons set forth above, the Court finds that substantial evidence on the record as
a whole supports the Commissioner’s decision that Plaintiff is not disabled.
IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED, and
Plaintiff’s Complaint is DISMISSED with prejudice.
A separate judgment shall be entered incorporating this Memorandum and Order.
Dated this 27th day of March, 2017.
/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE
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