Pautler v. Colvin

Filing 23

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. A judgment in accordance with this Memorandum and Order will be entered separately. Signed by District Judge Carol E. Jackson on 3/22/2017. (CLO)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CHRIS PAUTLER,
Plaintiff,
vs.
NANCY A. BERRYHILL1, Acting
Commissioner of Social Security,
Defendant.

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Case No. 4:16-CV-00266 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court for review of an adverse ruling by the Social
Security Administration.
I. Procedural History
On August 8, 2011, plaintiff Chris Pautler protectively filed an application for
supplemental security income with an alleged onset date of January 16, 2010. (Tr.
118–19, 10).2

Plaintiff’s application was denied on initial consideration on

December 22, 2011, (Tr. 56–64, 67–71), and he requested a hearing from an
Administrative Law Judge (ALJ). (Tr. 74).
Plaintiff and counsel appeared for a hearing on July 22, 2013. (Tr. 10, 86).
That same day, plaintiff amended the disability onset date to February 16, 2011.
(Tr. 143). The ALJ issued a decision denying plaintiff’s application on August 20,
2014. (Tr. 7–31). The Appeals Council denied plaintiff’s request for review on
January 7, 2016. (Tr. 1–5). Accordingly, the ALJ’s decision stands as the
Commissioner’s final decision.

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 is substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit.
2
Plaintiff filed the application for supplemental security income pursuant to 42 U.S.C. §§
1381-1385.

II. Evidence Before the ALJ
A. Disability Application Documents
In an October 27, 2011, Disability Report (Tr. 146–54), plaintiff listed his
disabling conditions as severe depression, sleep apnea, irritable bowel syndrome,
anxiety, and low testosterone levels. (Tr. 147). An updated report (Tr. 173–78)
submitted on February 8, 2012, indicated that beginning in February 2012, plaintiff
experienced worsening depression and anxiety, as well as signs of paranoia.
Plaintiff also noted worsened colitis and incontinence. (Tr. 173). Plaintiff stopped
working on May 31, 2008, when he was laid off. (Tr. 148). He then collected
unemployment benefits for some time before he “became disabled” on January 15,
2011. Id. In the fifteen years prior to the onset of his disability, plaintiff worked as
a retail manager. He stayed in that position until May 2008. (Tr. 149). 3 To treat his
health conditions, doctors prescribed numerous medications including, Adderall4 to
regulate sleep, a supplement for a vitamin B deficiency, testosterone injections for
his testosterone deficiency, and Zoloft5 for depression. (Tr. 150). Plaintiff’s updated
disability report reflected the same prescription medications, but did not include the
vitamin supplement. (Tr. 175). Additionally, the stated reasons for medications
3

Potentially conflicting information is presented in Lenora V. Brown’s psychological
assessment from December 5, 2011. Therein, plaintiff’s prior employment history included
work as a waiter, installer of fences, and preparer of insurance claims. (Tr. 248). Moreover,
notes by Dr. Liss from April 4, 2012, indicate that plaintiff worked at Prudential for 2.5
years. (Tr. 260). A medical report from February 3, 2012, by Dr. Scott Groesch, signals that
plaintiff previously worked at UPS. (Tr. 273).
4
Adderall, or Amphetamine Salt Combo, is a combination of stimulants (amphetamine and
dextroamphetamine) and is used to treat attention-deficit hyperactivity disorder and
narcolepsy. http://www.webmd.com/drugs/drug-63164Adderall+XR+Oral%2F.aspx?drugid=63164
(last
visited
May
13,
2014)
and
http://www.pdrhealth.com/drugs/adderall (last visited on May 13, 2014).
5
Zoloft, or Sertraline, is a member of the SSRA class and is used to treat depression,
obsessive-compulsive disorder, panic attacks, posttraumatic stress disorder, and social
anxiety disorder. It is also used to relieve the symptoms of premenstrual dysphoric
disorder. www.nlm.nih.gov/medlineplus/druginfo/meds (last visited on Oct. 27, 2009).

-2-

changed: Adderall was reportedly prescribed for ADHD and testosterone for
managing chronic fatigue. Id.
In a Function Report dated November 7, 2011, (Tr. 162–72), plaintiff stated
that he lived in a house with his family. In response to a daily activities inquiry,
plaintiff stated that after waking up he took his medications and then returned to
bed for about an hour. (Tr. 162). After getting up again, he sometimes took care of
his personal needs.

But, sometimes he spent several consecutive days in bed,

neglecting his personal care. Id. He did not list any hobbies but related that he
spent most of his day watching television. (Tr. 166).
Plaintiff reported that his health conditions did not affect his ability to dress
and feed himself, and he could use the toilet without assistance. (Tr. 163).

He

noted that sometimes he failed to bathe and care for his hair and he seldom
shaved. Id. Plaintiff attributed these personal care habits to his depression. Id.
Plaintiff’s mother would “gently remind” him to care for his personal hygiene and
take his medications. (Tr. 164).
Approximately once a week plaintiff “accomplish[ed] small tasks” such as
laundry, housework, and yardwork. He needed encouragement to do so, due to low
motivation. (Tr. 162, 164). On other days, plaintiff added, he might “just go in
circles.” (Tr. 162). When it came to handling money, plaintiff could count change
and use a checkbook or money orders. (Tr. 165). He could not, however, pay bills
or handle a savings account, as he would become “overwhelm[ed].” (Tr. 165).
Plaintiff prepared his own meals three or four times a week. (Tr. 164). He tried to
make meals quickly, rather than healthfully. Id. Plaintiff left his home about two or
three times each week; he was able to walk and drive alone. (Tr. 165). He
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shopped for clothes or groceries once every two weeks. He refrained from shopping
more frequently because of his depression. Id.
Plaintiff reported that depression has also diminished his abilities to
concentrate, absorb information, and socialize, noting that in the past he enjoyed
sports and school. (Tr. 163, 166). Plaintiff reported limited social interaction—
whether in person, on the phone, or on the computer. (Tr. 166). He has had
difficulty getting along with others, as he is “easily annoyed and impatient.” (Tr.
167).

Plaintiff wrote that his “inability to communicate” manifested in “poor job

function,” and his “eventual[] termination” from a job. (Tr. 168).

Plaintiff added

that he experienced hearing6 and memory difficulties, and that he struggled to
complete tasks, understand, and follow instructions. (Tr. 167). He noted that his
concentration, which could only persist for about fifteen to twenty minutes, limited
his capacity to follow instructions. Id. Plaintiff also struggled handling stress and
adapting to changes in routine. (Tr. 168). In his narrative, plaintiff attributed his
disability to having been “born with the [umbilical] cord wrapped around [his]
neck.” (Tr. 169).
Plaintiff stated that he can walk a distance of only one block before requiring
a ten-minute rest period. (Tr. 167). He also reported that sleep apnea reduced his
daily coordination and functioning and exacerbated his depression and anxiety. (Tr.
169). He also added that irritable bowel syndrome (IBS) necessitated frequent
bathroom visits. (Tr. 169).
In a Work History Report plaintiff provided a detailed description of his prior
work experience. (Tr. 155–61). Plaintiff worked as a retail manager from an

6

Plaintiff wrote that his hearing problems did not contribute to his disability. (Tr. 167).

-4-

unknown date until May 2008. (Tr. 156). He worked for eight hours each day, and
for seven days each week, earning about $1,200.00 weekly. Id. His job
responsibilities included “ordering and maintaining sales records,” “payroll,” and
managing staff. Id. Moreover, his duties required that he employ machines, tools,
and equipment, as well as technical knowledge or skills. (Tr. 156). He also wrote
and completed reports. Id. The daily physical requirements of plaintiff’s position
involved about 5.5 hours of walking, 5 hours of standing, 3.5 hours of climbing, 2
hours of stooping, 0.5 hours of kneeling, 1 hour of crouching, 6.5 hours of
handling, grabbing, or grasping large objects, 2.5 hours of reaching, and 2 hours of
writing, typing or handling small objects. Id.

On a daily basis he would lift and

carry boxes of stock and furniture for up to 1,000 feet. Id. He frequently lifted
objects weighing about fifty pounds or more. Id. Plaintiff supervised eight other
employees in his position, and had some responsibility for hiring and firing.
B.

Testimony at Hearing
Plaintiff testified that he lives with his 75 year old mother. He testified that

his employment issues began when his former employer laid him off on May 31,
2008. (Tr. 36). He collected unemployment until January 2011. (Tr. 36). By
February

16,

2011,

plaintiff

had

ceased

looking

for

work

and

collecting

unemployment benefits. (Tr. 37). Plaintiff testified that he was disabled due to
persistent depression, anxiety, panic attacks, chronic fatigue, and irritable bowel
syndrome. (Tr. 39).
Plaintiff testified that he used a continuous positive airway pressure machine
(CPAP) for sleep apnea. (Tr. 38).

When asked about medication compliance,

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plaintiff responded that he had stopped taking Lipitor7 and was going to resume but
his doctor was on vacation. Plaintiff stated that he was given Lipitor while in the
hospital in May 2013 because doctors believed he “might have had a mini stroke.”
(Tr. 38).
Plaintiff testified that in high school he saw Jay Liss, M.D., “a couple times”
for treatment of depression. (Tr. 40). Plaintiff did not see Dr. Liss for several years
after that, but resumed treatment “on and off” in the mid- to late 1980’s. Id. For
about 2½ or 3 years preceding the hearing, plaintiff had been keeping regular
appointments with Dr. Liss. (Tr. 40–41). Because of depression, plaintiff testified
that feels he doesn’t “have any way out” and that he doesn’t “have a purpose in life
because [he is] tired all the time.” (Tr. 41-42). He testified that depression had
caused his inability to concentrate and follow written directions and his difficulty
with reading comprehension. Id. Plaintiff reported that he had become forgetful and
that lately his “memory isn’t all that good.”

Id.

As a further consequence of

depression, plaintiff testified that he does not have “any social life anymore” and
that he has “lost contact with all [his] friends.” (Tr. 43). Additionally, he has days
when he does not “feel like getting out of bed.” Id. Plaintiff testified that “there
might [be] three days in a row” when he does not “get out of bed or take a shower
or do anything.” (Tr. 45).
Plaintiff testified that anxiety makes him feel overwhelmed at times. (Tr. 46).
He could not identify specific triggers for his anxiety but he believed it sometimes
arose from thinking about his responsibilities. (Tr. 46, 47). He also attributed
anxiety to an incident several years earlier when he was shot during an attempted
7

Lipitor is used for the treatment of high cholesterol. See Phys. Desk Ref. 2495-96 (60th
ed. 2006).

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robbery. Id. That experience led to fear of leaving home and suspicion of strangers
in public places. (Tr. 48).
Plaintiff’s described how chronic fatigue made him “dizzy and lightheaded.”
(Tr. 46). He also complained of resulting muscle aches and difficulties walking. Id.
The onset of the fatigue was generally unpredictable. Id. Although plaintiff could
still drive, fatigue sometimes interfered and he would have to pull over until it
passed. (Tr. 54).
Plaintiff testified that he had sleeping difficulties for which he took Ambien.8
{Tr. 49). Nevertheless, he still struggled to fall asleep due to racing thoughts and
uncomfortable positioning to accommodate his CPAP machine. (Tr. 49–50). He
woke up frequently throughout the night, preventing him from getting adequate
rest. Id. As a result, he might not hear an alarm and might not get out of bed until
anywhere between 10:00 a.m. and 2:00 p.m. (Tr. 50, 51).
On a typical day, plaintiff began by taking his medication—two Adderall, one
Zoloft, and aspirin. Id. Because he was often still tired, he would go back to bed for
another hour. Id. Upon arising, he might take a shower or take vitamin
supplements or Metamucil. Id. During the afternoon and evening plaintiff cooked or
ate meals. (Tr. 52). Plaintiff did not have any hobbies. Id. Instead, on a typical day
he watched television or did chores such as cleaning, laundry, or mowing the lawn.
Id. On occasion he shopped for groceries. Id. Plaintiff told the ALJ that he does not
participate in any social activities or groups. However, in the two years preceding
the hearing, he and his mother traveled to the Lake of the Ozarks several times and
plaintiff went fishing there. (Tr. 43, 53-54).
8

Ambien is used for the short-term treatment of insomnia. See Phys. Desk Ref. 2867-68
(60th ed. 2006).

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C.

Vocational Specialist Interrogatories
Following the administrative hearing, the ALJ propounded interrogatories to

vocational specialist Gerald Belchick. (Tr. 198–202). The ALJ asked whether an
individual born on July 25, 1962, with at least a high school education, who can
communicate in English, with work experience as a retail sales manager, and who
has the residual functional capacity (RFC) to perform a full range of work at all
exertional levels but has nonexertional limitations of (1) routine repetitive tasks
(SVP not to exceed 2), (2) occasional interaction with the public, and (3) occasional
to frequent interaction with co-workers and supervisors, could perform prior past
jobs and could perform any unskilled occupations with jobs that exist in the national
economy. (Tr. 199–200). Belchick responded that the individual did have work
experience within the past fifteen years but he could no longer perform the same
position. (Tr. 198–99). He also opined that the individual could perform unskilled
occupations in the national economy. (Tr. 200). Specifically, he noted that “there
are a number of unskilled jobs that are simple, routine and repetitive and that do
not involve frequent interaction with the public, co-workers or supervisors.” (Tr.
202). Such positions included warehouse worker, commercial laundry worker, and
cleaner. (Tr. 202).
D.

Medical Records
Pre-Onset Mental Health Records
Jay Liss, M.D., met with plaintiff on March 19, 2009. (Tr. 220).

Dr. Liss

diagnosed plaintiff with depression and attention deficit disorder (ADD). Id. He
wrote that plaintiff’s medications included Zoloft and Adderall. Id. During that
session, plaintiff told Dr. Liss that he was sleeping less. Id. Notes from June 10,
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2009, reflect similar findings; but Dr. Liss added that plaintiff suffered from anxiety.
(Tr. 219). On July 9, 2010, Dr. Liss wrote that plaintiff maintained the same dosage
of Adderall and Zoloft and had a GAF of 60. (Tr. 218). Dr. Liss diagnosed plaintiff
with ADD. Id. He further noted that plaintiff had to go to court due to a trespassing
charge. Id. Records also indicate that plaintiff discussed his unemployment. Id. In
his next set of meeting notes, Dr. Liss clarified that the trespassing charges were
civil in nature. (Tr. 217). He also found a GAF of 60 and wrote that plaintiff had
ADD and still held prescriptions for Adderall and Zoloft. Id
During a physical exam at Barnes Jewish Hospital on November 24, 2010,
plaintiff reported that he took antidepressants and Adderall (for daytime fatigue).
(Tr. 231). Scott D. Groesch, M.D. wrote of plaintiff’s depression that he “seem[ed]
stable on current medications.” (Tr. 232).
Post-Onset Mental Health Records
On March 9, 2011, plaintiff again saw Dr. Groesch. (Tr. 229–30). He noted
that plaintiff presented with “normal sleep, mood, energy, sense of well-being and
memory.” (Tr. 229). He further wrote that plaintiff’s depression was “stable on the
above listed medications” (Adderall and Sertraline HCl). (Tr. 229–30). Dr. Groesch
reported similar findings during a visit on March 30, 2011. (Tr. 227–28). He
specifically stated that plaintiff’s “depression is much improved and is followed by
psychiatry.” (Tr. 227). Moreover, he reported that plaintiff was “improving” and
“well-controlled on current regimen.” (Tr. 227–28).
Plaintiff attended a psychiatric appointment with Dr. Liss on May 20, 2011.
Dr. Liss’s notes indicate that the two discussed plaintiff’s attorneys, as well as his
medications. Dr. Liss found on Axis I that plaintiff had ADD. His GAF assignment on
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Axis V is indecipherable. (Tr. 216).

When plaintiff returned on September 16,

2011, Dr. Liss wrote that he was “feeling more depressed” and had night and day
“mixed up.” (Tr. 263). In addition he wrote that plaintiff felt “worried about his
mother.” Id. Again, Liss diagnosed plaintiff with ADD. Id. Plaintiff’s prescription
medications remained the same. Id.
During a November 17, 2011, visit to Dr. Groesch, plaintiff complained of
“ongoing depression.” (Tr. 225). At that time plaintiff maintained the same
prescription regimen for his depression (Setraline HCl), but also had prescriptions
for Adderall, Lipitor, and Depo-Testosterone shot. Id.
On December 5, 2011, Lenora V. Brown, Ph. D., conducted plaintiff’s
psychological evaluation. (Tr. 246–50). Dr. Brown reported that she reviewed
plaintiff’s medical records prior to the examination and noted that his chief
complaints

were

severe

depression,

sleep

apnea,

IBS,

anxiety,

and

low

testosterone levels. (Tr. 246). Dr. Brown began by describing each of plaintiff’s
presenting issues. She first noted that plaintiff had no knowledge of a diagnosis of
ADD, despite its repeated mention in medical records. Id. Plaintiff reported constant
symptoms of depression including “fatigue, irritability, sense of worthlessness,
sadness, lack of interest in engaging in social activities, decreased concentration,”
low self-esteem, guilt about being a burden, disturbed sleep, and increased appetite
with fluctuating weight. (Tr. 247). Plaintiff also told Dr. Brown that he had struggled
with anxiety since high school and depression since childhood. Id. He denied any
suicidal

attempts,

excessive

alcohol

consumption,

drug

use,

or

inpatient

admissions. Id. His medications at the time were Straline 100 mg, once daily;
Adderall 30 mg, twice daily; and testosterone injections. Id.
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Dr. Brown reported that plaintiff’s grooming and hygiene appeared within
normal limits. (Tr. 248). She did not observe “unusual motor activity or disturbance
in gait.” Id.

With respect to plaintiff’s ability to relate, Dr. Brown noticed that

although his eye contact was poor, he succeeded in generating “some spontaneous
conversation.” Id.

Plaintiff’s cooperation with the examiner seemed fair and “no

problems were noted in either receptive or expressive language domains.” Id.
Generally, plaintiff’s speech was normal and Dr. Brown related that his rate,
rhythm, and volume fell within normal limits. Id. Dr. Brown further opined that
while plaintiff’s affect appeared within normal limits, he reported that he felt “sort
of closed in.” Id. Dr. Brown’s assessment of plaintiff’s thought process found it
generally normal—he denied paranoid ideation, as well as auditory or visual
hallucinations. Id. Also, “[d]uring the evaluation he was coherent and his
conversation was relevant and logical.” Id. In the sensory tests, plaintiff
successfully repeated five digits forward, named the current president and
governor, named the past four presidents, and identified his birthplace, birthdate,
and social security number. Id. He could not name the current mayor. Id. On a
series of tests involving judgment (how to react to various scenarios), calculation
(performing simple calculations and a serial threes task), proverb interpretation,
and similarities and differences questions, plaintiff successfully answered all
questions, and Dr. Brown rated him as “fair” in each category; he completed
calculations without difficulty. (Tr. 248–49).
Next, Dr. Brown evaluated plaintiff’s level of daily functioning. (Tr. 249). She
reported that plaintiff told her he can pay bills and has a bank account. Id. He also
stated that he can cook, use a microwave, and make a sandwich. Id. He shops for
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groceries once a week, and was able to perform basic chores such as laundry,
vacuuming, and cleaning the bathroom. Id. Plaintiff told Dr. Brown that “[o]n
average” he is “capable of doing things about once a week.” Id. In terms of his
social functioning, plaintiff “reported a history of problems getting along with others
in a work setting and acknowledged being terminated twice.” Id. He also noted
some friction with his mother. Id. Furthermore, he only reported television as a
leisure and recreation activity. Plaintiff reported that he does not always care for his
personal needs due to fatigue. Id. Finally, Dr. Brown observed that plaintiff’s
“concentration, persistence, and pace were fair during the duration” of the
evaluation. Id.
Dr. Brown concluded that plaintiff’s ability to perform activities of daily living
and personal grooming were mildly impaired. Next, she found that his levels of
social functioning and occupational functioning (ability to remember and carry out
simple tasks, concentrate, persist for a normal period of time, and adapt to a
normal workplace) were moderately impaired. (Tr. 250). She diagnosed plaintiff
with depressive disorder, not otherwise specified, and assigned a GAF of 65. Id.
On January 11, 2012, Dr. Liss took notes on plaintiff’s various conditions—
depression, chronic fatigue, sleep apnea, low testosterone, and ADD. (Tr. 262). He
also wrote that plaintiff had been denied disability benefits. Id. Dr. Liss indicated a
GAF of 45. Id.
On February 1, 2012, Dr. Liss noted that plaintiff was applying for disability
benefits. (Tr. 261). He also reported that plaintiff complained of “memory trouble”
and stress. Id. Plaintiff received a GAF evaluation of 50 and a diagnosis of ADD. Id.
In his April 4, 2012, evaluation, Dr. Liss reported diagnoses of ADD and depression.
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(Tr. 260). The notes also reflect that plaintiff discussed various legal issues with
Dr. Liss during that appointment. (Tr. 260). Dr. Liss assigned a GAF of 40. Id.
Plaintiff presented to Barnes Jewish Hospital on February 3, 2012, for a
physical exam, during which he discussed his mental health complaints. (Tr. 273–
74). Plaintiff told Dr. Groesch that he had long-standing depression, for which he
was seeing a psychiatrist. He noted that he took Adderall for daytime fatigue, as
well as antidepressants. (Tr. 273). Of plaintiff’s depression, Dr. Groesch wrote that
it “seems stable on current medications,” and associated depression treatment with
improving plaintiff’s generalized fatigue. (Tr. 274).
Plaintiff met with Dr. Liss on May 31, 2012, at which time Dr. Liss diagnosed
him with ADD and a thought disorder. (Tr. 259). Dr. Liss recorded several
observations relating to plaintiff’s ADD including “(1) poor attention,” “(2) poor
sustainability”, “(3) doesn’t listen well,” “(4) poor follow through,” “(5) poor
organization,” and “(6) loses thought.” (Tr. 259). These notes appear to be copied
from later meeting records taken on August 15, 2012. (Tr. 257). There was also
some conversation about plaintiff’s legal issues. Id. Dr. Liss assigned plaintiff a GAF
of 50. Id.
On June 29, 2012, Dr. Liss wrote that plaintiff was “at the lake” and
diagnosed plaintiff with ADD and a thought disorder. (Tr. 258). He noted a GAF of
40. Plaintiff’s prescriptions were unchanged. Id.
Records from August 15, 2012, mirror those from May 31 noted above. (Tr.
257). Dr. Liss found that plaintiff had ADD and a GAF of 40. Id. Dr. Liss recorded
the same GAF and ADD diagnosis on October 1, 2012. (Tr. 256). Topics of

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discussion included plaintiff’s siblings and use of the CPAP machine. Id. Dr. Liss’s
diagnoses remained consistent on November 14, 2012. (Tr. 255).
Plaintiff visited Barnes Jewish Hospital to follow up regarding his fatigue. (Tr.
271–74). Dr. Groesch noted that plaintiff “has some depression symptoms,” which
“are partially improved with use of the testosterone supplements.” (Tr. 271).
Psychiatric evaluation also included findings of “normal sleep, mood, energy, sense
of well-being and memory.” (Tr. 272). The assessment of plaintiff’s psychiatric
state concluded that he “seems stable on current medications,” and will follow-up
with a psychiatrist. Id.
On December 19, 2012, plaintiff and Dr. Liss discussed plaintiff’s sleep issues
and weight loss. (Tr. 254). Dr. Liss found that plaintiff had ADD and a GAF of 40.
Id. This assessment remained unchanged at the appointment on January 23, 2013.
(Tr. 253).
Plaintiff told Dr. Liss about his sleep apnea and overeating issues on February
1, 2013. (Tr. 252). He concluded that plaintiff had ADD and a GAF of 50. (Tr. 252).
Notes from April 2, 2013, reflect a diagnosis of ADD. (Tr. 251).
On May 29, 2013, Dr. Liss completed a mental RFC questionnaire for plaintiff.
(Tr. 265–70). Dr. Liss reported that he had seen plaintiff every one to three months
beginning in 1993. (Tr. 265). On Axis I Dr. Liss found that plaintiff had ADD and
depression. Id. He wrote that plaintiff’s current GAF and highest GAF for the year
were both 40. Id. Moreover, he noted that the treatments provided—therapy and
medication—showed no response. Id. Medications were listed as Adderall and
Zoloft. Id. Dr. Liss found that plaintiff’s prognosis was poor and wrote that plaintiff
could not “make useful decisions” and had a “strange perception of reality.” Id. Dr.
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Liss identified a host of different symptoms, such as (1) “anhedonia or pervasive
loss of interest in almost all activities,” (2) “appetite disturbance with weight
change,” (3) “decreased energy,” (4) “generalized persistent anxiety,” (5)
“somatization unexplained by organic disturbance,” (6) “mood disturbance,” (7)
“difficulty thinking or concentrating,” (8) “paranoid thinking or inappropriate
suspiciousness,” and (9) “psychological or behavioral abnormalities associated with
a dysfunction of the brain with a specific organic factor judged to be etiologically
related to the abnormal mental state and loss of previously acquired functional
abilities.” (Tr. 266).

He found that plaintiff exhibited other symptoms, including

(1) “perceptual or thinking disturbances,” (2) “deeply ingrained, maladaptive
patterns of behavior,” (3) “unrealistic interpretation of physical signs or sensations
associated with the preoccupation of belief that one has a serious disease or
injury,” (4) “sleep disturbance,” and (5) “oddities of thought, perception, speech or
behavior.” Id.
During the mental RFC assessment, Dr. Liss also evaluated plaintiff’s mental
abilities and aptitude to do unskilled work. (Tr. 267). He determined that plaintiff
would be unable to meet competitive standards for every area of evaluation.9 Dr.
Liss wrote that plaintiff was “unable to make realistic, goal oriented decisions.” Id.

9

Those areas included: the ability to remember work-like procedures, understand and
remember very short and simple instructions, carry out very short and simple instructions,
maintain attention for two hour segment, maintain regular attendance and be punctual
within customary, usually strict tolerances, sustain and ordinary routine without special
supervision, work in coordination with or in proximity to others without being unduly
distracted, make simple work-related decisions, complete a normal workday and workweek
without interruptions from psychologically based symptoms, perform at a consistent pace
without an unreasonable number and length of rest periods, ask simple questions or request
assistance, accept instructions and respond appropriately to criticism from supervisors, get
along with co-workers or peers without unduly distracting them or exhibiting behavioral
extremes, respond appropriately to changes in a routine work setting, deal with normal
work stress, and be aware of normal hazards and take appropriate precautions. (Tr. 267).

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He also found that plaintiff did not have the mental abilities and aptitudes for
semiskilled and skilled work, which includes the capacity to understand and
remember detailed instructions, carry out detailed instructions, set goals or make
plans independently of others, and deal with stress of semiskilled and skilled work.
Specifically, Dr. Liss wrote that plaintiff had “poor cognitive ability.” (Tr. 268). Next,
Dr. Liss found that plaintiff’s poor organization rendered him unable to meet
competitive standards in mental abilities and aptitude needed to do particular types
of jobs that require an employee to (1) interact appropriately with the public, (2)
maintain socially appropriate behavior, (3) adhere to basic standards of neatness
and cleanliness, (4) travel in unfamiliar places, and (5) use public transportation.
(Tr. 268). Dr. Liss opined that plaintiff’s psychiatric condition would exacerbate his
experience of pain, would cause him to be absent from work more than four days
per month, and would last at least twelve months. (Tr. 269). Finally, Dr. Liss found
that plaintiff could not manage benefits in his own best interest. Id.
Sleep Apnea Records
On November 24, 2010, Scott D. Groesch, M.D., recommended that plaintiff
visit a sleep clinic for evaluation and treatment of his sleep apnea. (Tr. 232). On
December

29,

2010,

plaintiff

visited

the

Clayton

Sleep

Institute

for

a

polysomnography, or sleep evaluation, in connection with daytime sleepiness,
difficulty maintaining sleep, and snoring and breathing issues during sleep. (Tr.
210–11). An evaluation found that plaintiff had “severe obstructive sleep apnea
with severe disruption of sleep.” (Tr. 210). The polysomnography showed that the
problem was responsive to nasal CPAP – a CPAP titration study “revealed significant
improvement in sleep-related obstructive breathing” and “[o]xygenation during
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sleep.” Id. Korgi V. Hegde, M.D., recommended that plaintiff continue to use the
device along with a heated humidifier and saline nasal spray. Id.
Plaintiff also discussed his sleep apnea during his psychological evaluation
with Lenora V. Brown, Ph. D., on December 5, 2011. (Tr. 246). He told Dr. Brown
that he used a CPAP machine to improve sleep and that he took Adderall to combat
daytime sleepiness. Id. Medical records from a visit to Barnes Jewish Hospital from
February 3, 2012, and December 4, 2012, show that plaintiff continued to use the
CPAP to treat sleep apnea. (Tr. 274).
Testosterone Deficiency Records
Scott D. Groesch, M.D., mentioned testosterone deficiency as a possible
cause of plaintiff’s fatigue on November 24, 2010. (Tr. 232). Recommended testing
for testosterone levels was done on November 27, 2010. (Tr. 236). The test results
showed that plaintiff had low testosterone levels. Id. On March 30, 2011, plaintiff
presented for a follow-up appointment regarding his testosterone deficiency. (Tr.
227–28). Dr. Groesch noted that plaintiff had “no symptoms associated with low
testosterone,” just “his low mood, low energy, [and] general fatigue.” (Tr. 227).
The likely cause was assessed as an injury to his left testicle. (Tr. 227). An
additional test was conducted at Barnes Jewish Hospital on March 31, 2011. (Tr.
242).
During a follow-up appointment on November 17, 2011, plaintiff received an
intramuscular injection of testosterone. (Tr. 225). Dr. Groesch noted that plaintiff
was “still feeling quite fatigued,” and that he had not received the shots every four
weeks. (Tr. 225). Accordingly, the doctor noted it was “tough to absolutely know
whether dose is proper.” (Tr. 225).

During a psychological evaluation, plaintiff
-17-

described his low testosterone issue to Dr. Brown. Plaintiff reported that he had
inconsistently received injections since February 2010. (Tr. 247). During a February
3, 2012, physical exam at Barnes Jewish Hospital, plaintiff reported that he
continues to receive monthly testosterone shots but was unaware of their utility.
(Tr. 273).
Irritable Bowel Syndrome Records
Plaintiff complained of his “long-standing” irritable bowel syndrome during a
visit to Barnes Jewish Hospital on November 24, 2010. (Tr. 231). Scott D. Groesch,
M.D., noted that plaintiff had constipation and abdominal discomfort, but “usually
no diarrhea, bright red blood per rectum, weight loss or other alarming symptoms.”
Id.

During the psychological evaluation with Dr. Brown on December 5, 2011,

plaintiff reported that he had suffered from IBS for ten years, but had received an
initial diagnosis for the condition only seven years ago. (Tr. 246). He further told
her that he was taking over-the-counter medication to increase his fiber intake and
that he took laxatives. Id.
Plaintiff reported to Barnes Jewish Hospital for a physical exam on February
3, 2012. (Tr. 273–74). During that visit he discussed his irritable bowel syndrome
symptoms. (Tr. 273). Specifically, he relayed “constipation predominant with some
associated abdominal discomfort,” but “usually [had] no diarrhea, bright red blood
per rectum, weight loss or other alarming symptoms.” (Tr. 273). Other notes
indicated “no dysphagia, odynophagia, reflux, nausea, abdominal pain, change in
bowel habits, melena, hematochezia, or jaundice,” as well as no issues with “urine
stream, polyuria, hematuria, nocturia, or incontinence.” (Tr. 274). Dr. Groesch

-18-

recommended that plaintiff receive a colonoscopy if the “IBS and constipation
progress,” and prescribed Miralax. Id.
On December 4, 2012, plaintiff visited Barnes Jewish Hospital to discuss his
ongoing fatigue. (Tr. 271). On that date, he also reported that he continued to
suffer from IBS symptoms and constipation. (Tr. 272). Specifically Dr. Groesch
noted “constipation and “some dyspepsia.” Id. The report also notes that plaintiff
has a normal urine stream, and “no polyuria, hematuria, nocturia, or incontinence.”
Id. Medical records indicate that plaintiff received a colonoscopy on January 15,
2013. (Tr. 276).
III. The ALJ’s Decision
On August 20, 2014, the ALJ issued a decision containing the following
findings with respect to plaintiff’s application for disability benefits pursuant to
Social Security Act § 1614(a)(3)(A):
1.

Plaintiff last met the insured status requirements of the Social Security
Act on December 31, 2013.

2.

Plaintiff did not engage in substantial gainful activity during the period
from his amended alleged onset date of February 16, 2011 through his
date last insured of December 31, 2013. 20 C.F.R. § 404.1571 et seq.

3.

Through the date last insured, plaintiff had the following severe
impairments: major depressive disorder, alternately diagnosed as
depressive disorder not otherwise specified (“NOS”), attention deficit
disorder (“ADD”) and thought disorder. 20 C.F.R. § 404.1520(c).

4.

Through the date last insured, plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity
of one of the listed impairments in 20 CFR Part 404, Subpart P,
Appendix 1. 20 C.F.R. §§ 404.1520(d), 404.1525. 404.1526.

5.

Through the date last insured, plaintiff had the residual functional
capacity to perform a full range of work at all exertional levels. He had
nonexertional limitations: performing routine, repetitive tasks in an
occupation with a Specific Vocational Preparation rating not exceeding
-19-

2. Also, he was limited to occasional interaction with the public, and
occasional to frequent interaction with co-workers and supervisors.
6.

Through the date last insured, plaintiff was unable to perform any past
relevant work. 20 C.F.R. § 404.165.

7.

Plaintiff was born on July 25, 1962, and was 49 years old, which is
defined as a younger individual age 18-49. He subsequently changed
age categories to an individual closely approaching advanced age on
July 24, 2012. 20 C.F.R. §§ 404.1563, 404.2(c)(4).

8.

The claimant has at least a high school education and is able to
communicate in English. 20 C.F.R. § 404.1564.

9.

Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not
the claimant has transferable job skills. See S.S.R. 82 – 41; 20 C.F.R.
Pt. 404, Subpt. P, App. 2.

10.

Through the date last insured, considering the claimant’s age,
education, work experience, and residual functional capacity, there
were jobs that existed in significant numbers in the national economy
that the claimant could have performed. 20 C.F.R. § 404.1569.

11.

The claimant was not under a disability, as defined in the Social
Security Act, at any time from January 16, 2010, the alleged onset
date, through December 31, 2013, the date last insured. 20 C.F.R. §
404.1520(g).
(Tr. 12–26).
IV. Legal Standards

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
-20-

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
-21-

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, 1218 (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
dosage,

effectiveness,

and

side

effects

of

medication;

(5)

any

functional

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, 1059–60 (8th Cir. 1998).
At step four, the ALJ determines whether a claimant can return to her past
relevant work, by comparing the RFC with the physical and mental demands of a
-22-

claimant’s past work. 20 C.F.R. § 404.1520(f). The burden at step four remains
with the claimant to prove her RFC and establish that he cannot return to her 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.
V. Discussion
Plaintiff claims that the ALJ erred in (1) determining that several of his
conditions did not constitute severe impairments, (2) formulating plaintiff’s RFC due
to improper weighing of expert opinions and plaintiff’s credibility, and (3)
determining that plaintiff could perform a significant number of jobs in the national
economy based on flawed hypothetical questions posed to the vocational expert.
A.

Severe Impairment Analysis

A severe impairment is an impairment or combination of impairments that
“significantly limits [a claimant’s] physical or mental ability to do basic work
activities.” 20 C.F.R. § 404.1520(c). Conversely, an impairment is not severe if it is
“a slight abnormality (or a combination of slight abnormalities) that has no more
than a minimal effect on the ability to do basic work activities.” SSR 96-3P, 1996
WL 374181 (1996).
-23-

Regulations define “basic work activities” as “the abilities and aptitudes
necessary to do most jobs.” 20 C.F.R. § 404.1521. Examples of such abilities
include, “(1) [p]hysical functions such as walking, standing, sitting, lifting, pushing,
pulling, reaching, carrying, or handling; (2) [c]apacities for seeing, hearing, and
speaking; (3) [u]nderstanding, carrying out, and remembering simple instructions,
(4) [u]se of judgment; (5) [r]esponding appropriately to supervision, co-workers
and usual work situations; and (6) [d]ealing with changes in a routine work
setting.” § 404.1521(b).
The impairment “must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and laboratory
diagnostic techniques. A physical or mental impairment must be established by
medical evidence consisting of signs, symptoms, and laboratory findings, not only
by [the claimant’s] statements of symptoms.” 20 C.F.R. § 404.1508.
“It is the claimant’s burden to establish that his impairment or combination
of impairments are severe.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007).
“Severity is not an onerous requirement for the claimant to meet, see Hudson v.
Bowen, 870 F.2d 1392, 1395 (8th Cir. 1989), but it is also not a toothless standard.
. .” Id. at 708. Here, the ALJ found that plaintiff’s major depressive disorder,
attention deficit disorder, and thought disorder constituted severe impairments
pursuant to 20 C.F.R. § 404.1520(c). (Tr. 13).
Sleep Apnea
First, plaintiff contends that the ALJ failed to “articulate a legally sufficient
rationale for failing to consider the sleep apnea to be a severe medically
determinable impairment.” [Doc. #15 at 9]. To support this assertion, plaintiff only
-24-

offers that plaintiff’s polysomnography “showed plaintiff had severe obstructive
sleep apnea, with severe disruption of sleep.” Id.
The ALJ concluded that plaintiff’s sleep apnea was non-severe because
plaintiff “consistently reported using his CPAP machine, and has not required any
additional treatment of sleep.” (Tr. 13). The CPAP machine “greatly improved sleep
efficiency, architecture and oxygenation during sleep.” Id. Moreover, the ALJ
reasoned that doctors attributed any residual fatigue symptoms to plaintiff’s
depression and low testosterone. Id. The ALJ added that plaintiff had “not been
advised to abstain from any activities because of his sleep apnea.” Id.
Substantial evidence supported the ALJ’s determination that plaintiff’s sleep
apnea was non-severe. Although diagnostic testing and other medical evidence
confirmed plaintiff’s sleep apnea complaints, the record shows that plaintiff’s sleep
apnea was responsive to the CPAP machine. Thus the ALJ properly decided that
plaintiff’s sleep apnea was non-severe. See Hilkemeyer v. Barnhart, 380 F.3d 441,
446 (8th Cir. 2004) (affirming an ALJ who found that sleep apnea was not severe
as it was “ameliorated by use of a CPAP machine”). “Impairments that are
controllable or amenable to treatment do not support a finding of disability.”
Davidson v. Astrue, 578 F.3d 838, 846 (8th Cir. 2009). Because plaintiff had “not
been advised to abstain from any activities because of his sleep apnea,” it did not
appear that the condition hindered plaintiff from performing basic work functions.
See (Tr. 13 (reasoning that “the objective medical evidence does not show that this
impairment had more than a de minimis effect on the claimant’s ability to engage in
basic work activities.”)). Accordingly, the ALJ did not err in deciding that plaintiff’s
sleep apnea was a non-severe impairment.
-25-

Testosterone Deficiency
Second, plaintiff avers that the ALJ did not provide a legally sufficient
explanation for determining that his testosterone deficiency was a non-severe
impairment. [Doc. #15 at 10–11].
The ALJ found that repeat laboratory testing showed low levels of
testosterone, but that the condition was not severe. (Tr. 14). In reaching this
conclusion, the ALJ reasoned that “the claimant receive testosterone supplement
injections only sporadically between March and November 2011.” Id. And
consequently, plaintiff’s “physician noted it was difficult to assess the propriety of
the testosterone dosing because of the claimant’s treatment non-compliance.” Id.
The ALJ added that the medical record did not indicate that plaintiff’s low
testosterone resulted in any complications or more than minimally affected his
ability to perform work activities. Id.
Substantial

evidence

supported

the

ALJ’s

conclusion

that

plaintiff’s

testosterone deficiency was non-severe. The record establishes that doctors
attributed his fatigue in part to plaintiff’s testosterone deficiency. (Tr. 225, 227,
231, 274). But, as the ALJ pointed out, doctors could not assess the effectiveness
of the prescribed treatment because of plaintiff’s inconsistent compliance. Notably,
“[i]f an impairment can be controlled by treatment or medication, it cannot be
considered disabling.” See Brown v. Barnhart, 390 F.3d 535, 540 (8th Cir. 2004)
(internal quotation and citation omitted). Furthermore, “[f]ailure to follow a
prescribed course of remedial treatment without good reason is grounds for
denying an application for benefits.” Id. at 540 (internal quotation and citation

-26-

omitted); see also 20 C.F.R. § 416.930.10 Therefore, the Court finds that the ALJ
properly determined that plaintiff’s testosterone deficiency was non-severe.
Irritable Bowel Syndrome
Third, plaintiff argues that the ALJ did not provide sufficient reasoning for
concluding that his irritable bowel syndrome (IBS) did not qualify as a severe
medically determinable impairment. [Doc. #15 at 10–11].
The ALJ determined that although plaintiff had had symptoms of IBS since
2001, it did not qualify as a severe impairment. (Tr. 13). From the record, the ALJ
gathered

that

plaintiff’s

IBS

symptoms

typically

included

constipation

and

abdominal discomfort, without consistent claims of diarrhea, incontinence, frequent
bathroom usage, or weight loss. (Tr. 13). Moreover, the ALJ noted that plaintiff’s
condition did not require (1) any dietary changes, (2) any prescription medications,
(3) any visits with a gastroenterologist, or (4) any emergent care or surgery. Id.
She also reasoned that there was no evidence in the record that plaintiff’s IBS more
than minimally inhibited his ability to perform basic work activities. Id. And as this
was a long-standing condition, the ALJ generally reasoned that a “condition that
was not disabling during working years and has not worsened cannot be used to
prove present disability.” Naber v. Shalala, 22 F.3d 186, 189 (8th Cir. 1994).
There is substantial evidence in the record to support the ALJ’s decision.
Medical records only catalog a history of constipation and abdominal pain
associated with plaintiff’s IBS. (Tr. 231, 272–74). Accordingly, the ALJ justifiably
reasoned that “the claimant’s allegations of greater symptoms and limitations from

10

Critically, there is no evidence in the record that plaintiff’s non-compliance with this
testosterone regime related to his mental impairments. See, e.g., Wildman v. Astrue, 596
F.3d 959, 966 (8th Cir. 2010); cf. Pates-Fires v. Astrue, 564 F.3d 935, 945 (8th Cir. 2009).

-27-

this condition, including fecal incontinence and frequent bathroom usage are
considered not fully credible.” (Tr. 13). Although records do show that plaintiff
received a colonoscopy on January 15, 2013, the precipitating cause and results of
that procedure do not appear in the record. (Tr. 276). Furthermore, the ALJ
properly considered that doctors only prescribed over-the-counter medication to
treat plaintiff’s IBS. See Rankin v. Apfel, 195 F.3d 427, 429–30 (8th Cir. 1999);
Stout v. Shalala, 988 F.2d 853, 855 (8th Cir. 1993). Thus the ALJ properly
determined that plaintiff’s IBS was non-severe.
B.

RFC Determination

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.’” Martise, 641 F.3d at 932 (quoting Vossen v. Astrue, 612
F.3d 1011, 1016 (8th Cir. 2020)). 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).

-28-

To formulate plaintiff’s RFC in this case, the ALJ considered the degree of
limitation from plaintiff’s severe impairments, in addition to the “credible symptoms
arising from his non-severe impairments.” (Tr. 19). He concluded that plaintiff did
not have limitations with regard to physical exertional levels. But plaintiff’s mental
impairments limited him to “performing routine, repetitive tasks in an occupation
with a SVP rating not exceeding 2.” Id. Moreover, “[h]is combination of mental
impairments also restricted him to occasional interaction with the public, and
occasional to frequent interaction with co-workers and supervisors.” Id. Plaintiff
argues that this RFC did not accurately capture his limitations because the ALJ (1)
disregarded severe impairments,11 (2) improperly weighed expert medical opinions,
(3) and incorrectly found plaintiff not credible.
Expert Medical Opinion: Jay Liss, M.D.
Plaintiff argues that the ALJ should have accorded greater weight to the
opinion of Dr. Liss. Specifically, he contends that the ALJ did not show
inconsistencies between Dr. Liss’s RFC opinion and his treatment notes.
According to 20 C.F.R. § 404.1527(c) an ALJ will consider several factors to
decide the weight that should be afforded to a medical opinion, including the (1)
examining relationship, (2) length of the treatment relationship and frequency of
examination, (3) nature and extent of the treatment relationship, (4) supportability
of the opinion, (5) consistency with the record as a whole, (6) specialization of the
expert, and (7) any other factors brought to the ALJ’s attention. 20 C.F.R. §
404.1527(c)(1)-(6).

11

As the Court has already found that the ALJ correctly conducted the step 2 analysis, it will
not address this argument again.

-29-

A

treating physician’s

opinion on the

“nature

and severity” of the

impairments will receive controlling weight if it “is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [the] case record.” 20 C.F.R. § 416.927(d)(2); see
also Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005). Part and parcel to this
analysis is whether the treating physician’s opinion is internally inconsistent –
“[w]hen a treating physician’s notes are inconsistent with his or her residual
functional capacity assessment, we decline to give controlling weight to the residual
functional capacity assessment.” Pirtle v. Astrue, 479 F.3d 931, 933 (8th Cir.
2007); see also Davidson v. Astrue, 578 F.3d 838, 842 (8th Cir. 2009) (discrediting
a treating physician’s opinion that was inconsistent with his treatment records).
Therefore, “[a]lthough a treating physician’s opinion is entitled to great weight, it
does not automatically control or obviate the need to evaluate the record as [a]
whole.” Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001). If the ALJ chooses to
give the treating physician’s opinion less weight, he should “give good reasons” for
doing so. 20 C.F.R. § 404.1527(c)(2); SSR 96–2p, 1996 WL 374188 (1996).
In this case, the ALJ determined that “Dr. Liss’s opinion is unsupported by his
own treatment notes of the claimant, and the other medical evidence of record.”
(Tr.21). As a result, the ALJ gave little weight to Dr. Liss’s opinion, even though he
was plaintiff’s treating psychiatrist. Id. The ALJ provided the following examples of
internal inconsistencies in Dr. Liss’s evaluation: (1) “ . . . keeping the claimant on
the same two psychotropic medications since June 2009, is not consistent with his
opinion regarding the severity of the claimant’s mental impairments,” (2) Dr. Liss’s
notes do not “show he ever advised the claimant to participate in an intensive
-30-

outpatient program, to undergo inpatient psychiatric treatment, or to otherwise
undergo any treatment beyond his routine psychiatric visits, which does not
comport with the degree of symptoms and limitations articulated in his opinion,”
and (3) Dr. Liss’ treatment notes never documented any “objective findings of
abnormal affect, memory, concentration, attention, thought processes, thought
content, or cognition.” (Tr. 21).12
Moreover, the ALJ pointed to inconsistencies between the record as a whole
and Dr. Liss’s opinion: (1) reports by plaintiff’s primary care physician describing
plaintiff’s depression as “stable;” (2) evaluation by a psychological consultative
examiner that reported plaintiff’s normal affect and good performance on memory
and concentration tests; (3) plaintiff’s activities of daily living (laundry, paying bills,
using a checkbook or money order, preparing meals, shopping, driving, going out
alone, and vacationing at Lake of the Ozarks); and (4) Dr. Liss’s suggestion that
the limitations persisted since 1993, which is inconsistent with plaintiff’s work
history. (Tr. 21–22).
The Court finds that the ALJ properly discredited Dr. Liss’s opinion. The
aforementioned inconsistencies are not merely “lingering questions,” as plaintiff’s
reliance on Anderson v. Barnhart suggests. 344 F.3d 809, 816 (8th Cir. 2003).
Plaintiff’s claim that Dr. Liss’s notes are simply sparse but not inconsistent with his
later medical opinion is similarly unavailing. The Eighth Circuit has reasoned that
“the credibility of a medical opinion is particularly suspect when it is based on
incomplete evidence.” Woolf v. Shalala, 3 F.3d 1210, 1214 (8th Cir. 1993) (quoting

12

Given these specific findings of the ALJ, the Court finds no merit in plaintiff’s argument
that the ALJ failed to articulate any inconsistency between Dr. Liss’s opinion and his
treatment notes. See [Doc. #15 at 15].

-31-

Vasquez v. Schweiker, 701 F.2d 733, 736 (8th Cir. 1983)). Even without the
internal inconsistencies between Dr. Liss’s treatment notes and his opinion,
“inconsistency with other evidence alone is sufficient to discount” a physician’s
opinion. Goff v. Barnhart, 421 F.3d 785, 790–91 (8th Cir. 2005).
Plaintiff also attempts to undermine the basis of the inconsistencies the ALJ
found between Dr. Liss’s opinion and the record as a whole. He first claims that Dr.
Groesch’s description of the plaintiff’s depression as “stable,” does not contradict
Dr. Liss’s opinion. Eighth Circuit case law does not generally interpret “stable” as
plaintiff claims. See Goff v. Barnhart, 421 F.3d 785, 793–94 (8th Cir. 2005)
(affirming the ALJ who considered medical records indicating that plaintiff “was
stable” on antidepressants, and ultimately found plaintiff’s depression was not “as
limiting as [the plaintiff] alleged.”); see also Brown v. Astrue, 611 F.3d 941, 949,
953–54 (8th Cir. 2010) (finding a psychiatrist’s notes contradictory where he
admitted the plaintiff had been “in relatively stable condition” and

was “much

improved,” but also stated she could not “‘tolerate full time employment. . .’”); cf.
Hensley v. Colvin, 829 F.3d 926, 937 (8th Cir. 2016) (reasoning that “to describe
symptoms as ‘stable’ is simply to state that they are not getting any better or
worse; it says nothing about whether the symptoms are disabling.”). Notably, this
case is distinguishable from Hensley v. Colvin, as the ALJ did not put undue weight
on notes

that plaintiff’s

depression was “stable,”

“well-controlled,” “much-

improved,” and “improving” (Tr. 232, 227–28, 272); rather, the ALJ here
considered these notes in light of the whole record.
Plaintiff further argues that the ALJ should not have employed the opinions of
Martin Isenberg, Ph.D. and Dr. Brown to discredit Dr. Liss. He argues that the ALJ
-32-

should not have accorded significant weight to Dr. Isenberg’s opinion, because he
was a non-examining physician. Plaintiff also challenges the ALJ’s reliance on the
opinion of Dr. Brown.

Specifically, he argues that the Eighth Circuit “has stated

many times that the results of the one-time medical evaluation do not constitute
substantial evidence on which an ALJ can permissibly base the decision.”

[Doc.

#15 at 12]. Plaintiff also contends that Dr. Brown’s “report is an uninformed one at
best,” because she did not fully review “all the medical evidence of record.”13 Id.
Finally, he generally states that each of these opinions, standing alone, did not
constitute sufficient evidence to contradict the treating physician, Dr. Liss. (Tr. 12).
Although one medical opinion alone does not generally constitute “substantial
evidence,” to contradict a treating physician, the Eighth Circuit has carved out
exceptions to this rule. See Wagner v. Astrue, 499 F.3d 842, 849 (8th Cir. 2007).
“[A]n ALJ may credit other medical evaluations over that of the treating physician
when such other assessments are supported by better or more through medical
evidence,” or “when that opinion conflicts with other substantial medical evidence
contained within the record.” Prosch v. Apfel, 201 F.3d 1010, 1013–14 (8th Cir.
2000). And here, the ALJ found that Dr. Liss’s opinion conflicted with both Dr.
Brown’s and Dr. Isenberg’s opinions, in addition to other evidence in the record.
See Krogmeier v. Barnhart, 294 F.3d 1019, 1024 (8th Cir. 2002) (finding that the

13

Plaintiff provides no authority for the contention that Dr. Brown’s opinion was improper
because she did not review records of other physical conditions. In fact, the regulations
state that an opinion merits “more weight to the opinion of a specialist about medical issues
related to his or her area of specialty than to the opinion of a source who is not a specialist.”
20 C.F.R. § 404.1527(d)(5).

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ALJ did not solely rely on a consultative psychologist as the ALJ also “conducted an
independent review of the medical evidence.”).14
Accordingly, substantial evidence supports the ALJ’s decision to give Dr.
Liss’s opinion little weight. See Tellez v. Barnhart, 403 F.3d 953, 956 (8th Cir.
2005).15
Plaintiff’s Credibility
Plaintiff also argues that the ALJ improperly evaluated his credibility and
“discredited his subjective complaints” without “good reasons.” [Doc. #15 at 18].
More particularly, he takes issue with the ALJ’s consideration of his daily activities:
“[t]he ability to perform sporadic light activities does not mean that the [p]laintiff is
able to perform full time competitive work.” [Doc. #15 at 17 (citing Burress v.
Apfel, 141 F.3d 875, 881 (8th Cir. 1998).].
In evaluating the credibility of plaintiffs, ALJs consider the Polaski factors:
“the claimant’s prior work record, and observations by third parties and treating
and examining physicians relating to such matters as: 1. the claimant’s daily
activities; 2. the duration, frequency and intensity of the pain; 3. precipitating and
aggravating factors; 4. dosage, effectiveness and side effects of medication;” and
“5. functional restrictions.” Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007);
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). Moreover, “[s]ubjective
complaints may be discounted if there are inconsistencies in the evidence as a
14

This also renders plaintiff’s reliance on Jenkins v. Apfel, 196 F.3d 922 (8th Cir. 1999), as
well as Shontos v. Barnhart, 328 F.3d 418 (8th Cir. 2003), inapposite.
15
Even if the Court credited Dr. Liss, there is substantial evidence in the record to support
an opposing opinion. Simply because two conclusions could be reasonably drawn, does not
prevent the other from being supported by substantial evidence. Robinson v. Sullivan, 956
F.2d 836, 838 (8th Cir. 1992); Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008); Nicola v.
Astrue, 480 F.3d 885, 886 (8th Cir. 2007) (reasoning that an ALJ’s decision should only be
disturbed if it falls outside the “available zone of choice”) (internal quotation and citation
omitted).

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whole.” Wagner, 499 F.3d at 851. The ALJ must “‘make an express credibility
determination explaining the reasons for discrediting the complaints.’” Id. (quoting
Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000). But, an ALJ is not “required to
discuss each Polaski factor as long as ‘he acknowledges and considers the factors
before discounting a claimant’s subjective complaints.’” Halverson v. Astrue, 600
F.3d 922, 932 (8th Cir. 2010) (quoting Moore v. Astrue, 572 F.3d 520, 524 (8th
Cir. 2009)).
When considering a plaintiff’s daily activities as part of a credibility
determination, an ALJ may look to “the quality of daily activities . . . and the ability
to sustain activities, interests, and relate to others over a period of time’ and the
‘frequency, appropriateness, and independence of the activities must also be
considered.’” Leckenby v. Astrue, 487 F.3d 626, 634 (8th Cir. 2007) (quoting Reed
v. Barnhart, 399 F.3d 917, 922 (8th Cir. 2005)). In this vein, the Eighth Circuit has
consistently emphasized that “[a] claimant need not prove she is bedridden or
completely helpless to be found disabled.” Reed, 399 F.3d at 923. Notably, if an ALJ
“expressly discredits the claimant’s testimony and gives good reasons for doing so,
[a court] will normally defer to the ALJ’s credibility determination.” Gregg v.
Barnhart, 354 F.3d 710, 714 (8th Cir. 2003)).
Here, the ALJ concluded that “the claimant’s medically determinable
impairments could reasonably be expected to cause most of the alleged symptoms;
however, the claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms are not entirely credible . . .” (Tr. 23). According
to the ALJ, records reflected plaintiff’s conditions of depression, ADD, and a thought
disorder, but, they did not show an “abnormal mood, affect, or behavior.” Id.
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Moreover, the ALJ explained, psychiatric and primary care treatment records do not
show “objective findings of abnormal memory, concentration, attention, speech,
psychomotor activity, thought content, thought processes, insight, judgment or
cognition.” Id. The ALJ considered that plaintiff maintained the same dosage of the
same medications for “almost all of the alleged period of disability.” Id. Given the
unaltered

prescriptions,

observations

that

plaintiff’s

psychological

conditions

remained stable, and the absence of any need for emergent care, intensive
outpatient program, counseling with a psychologist or therapist, or hospitalization,
plaintiff’s

credibility

undermined.

(Tr.

regarding
23–24).

the

severity

Additionally,

the

of

his

ALJ

conditions

described

a

was

further

number

of

“unsubstantiated allegations” which “diminishe[d] the credibility of his allegations
and testimony.” (Tr. 24). Those allegations included panic attacks, bowel accidents,
frequent bowel movements, problems hearing, spending days in bed due to
depression, difficulty walking or engaging in exertional activities, and impaired
motor skills. Id. Finally, the ALJ considered that plaintiff’s medical conditions did not
change around the date of his alleged disability’s onset. (Tr. 25). That is, the onset
of plaintiff’s alleged disability coincided with the termination of his unemployment
benefits in early 2011. Id.
The ALJ made an express credibility determination on the basis of
inconsistencies in the record as a whole, and adequately reasoned through each of
plaintiff’s unsubstantiated symptoms. (Tr. 26). An ALJ can properly consider such
inconsistencies. Roberson v. Astrue, 481 F.3d 1020, 1025 (8th Cir. 2007). Plaintiff’s
stability on unchanged prescriptions also support the ALJ’s credibility finding.
Indeed, “[e]vidence of effective medication resulting in relief . . . may diminish the
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credibility of a claimant’s complaints.” Guilliams v. Barnhart, 393 F.3d 798 (8th Cir.
2005).
The ALJ did not determine the plaintiff’s credibility simply on the basis of
contradictions between his daily activities and his subjective complaints, as plaintiff
contends. See [Doc. #15 at 17]. It was appropriate for the ALJ to take plaintiff’s
daily activities into account. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
1984). Accordingly, because the ALJ gave good reasons for her credibility
determinations, the Court will defer to her conclusions.
C.

Affording Treatment

Plaintiff argues that plaintiff could not afford “proper evaluation of his
medical complaints” because he did not have health insurance. [Doc. #15 at 14].
“A Social Security claimant should not be disfavored because he cannot
afford or is not accustomed to seeking medical care on a regular basis. The failure
to seek medical attention may, however, be considered by the administrative law
judge in determining the claimant’s credibility.” Basinger v. Heckler, 725 F.2d 1166,
1170 (8th Cir. 1984).
The ALJ sufficiently addressed this argument in her opinion. She reasoned
that despite plaintiff’s alleged limited financial resources, he still attended regular
psychiatry appointments, “which suggests some access to care.” (Tr. 24).
Moreover, the ALJ found that no referrals to specialists were reflected in the record.
(Tr. 24). “The record does not show the claimant has been advised to undergo
additional treatment that he has declined for financial reasons, or that he has
attempted to avail himself of additional low-cost treatment providers or other social
services.” (Tr. 24); see Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999).
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Importantly, “‘[w]hile not dispositive, a failure to seek treatment may indicate the
relative seriousness of a medical problem.’” Whitman v. Colvin, 762 F.3d 701, 706
(8th Cir. 2014) (quoting Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995)).
Therefore, the ALJ’s analysis regarding plaintiff’s alleged financial limitations was
sufficient. The Court will defer to her findings as “[i]t is for the ALJ in the first
instance to determine a claimant’s real motivation for failing to follow prescribed
treatment or seek medical attention.” Whitman, 762 F.3d at 706 (quoting Hutsell v.
Sullivan, 892 F.2d 747, 750 n.2 (8th Cir. 1989).
D.

Objections to Vocational Expert
Hypothetical Questions

Plaintiff argues that as a consequence of an incorrect RFC determination, the
ALJ’s hypothetical questions to the vocational expert were incorrectly formulated.
But, “[t]he ALJ’s hypothetical question[s] properly included all impairments that
were accepted by the ALJ as true and excluded other alleged impairments that the
ALJ had reason to discredit.” Pearsall v. Massanari, 274 F.3d 1211, 1220 (8th Cir.
2001). As discussed above, the ALJ did not err in her RFC determination, and
therefore the hypothetical questions were proper. See Martise v. Astrue, 641 F.3d
909 (8th Cir. 2011). “
Opportunity to Submit Interrogatories
Plaintiff also claims that he submitted “alternative hypothetical questions” for
the vocational expert, but they were “not forwarded to the vocational expert for
[his] review.” [Doc. #15 at 20]. He claims that as a consequence of this failure, the
“response of the vocational expert does not represent substantial evidence.” Id.

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While the failure to submit additional hypothetical questions to an expert
does not undermine the conclusion that this decision is supported by substantial
evidence, (as the ALJ’s hypotheticals captured a RFC determination supported by
the record) the oversight could raise due process questions. This is because
“‘[p]rocedural due process under the Fifth Amendment requires that disability
claimants be provided a full and fair hearing.’” Passmore v. Astrue, 533 F.3d 658,
663 (8th Cir. 2008) (quoting Hepp v. Astrue, 511 F.3d 798, 804 (8th Cir. 2008)
(internal quotations omitted)). But, in Passmore v. Astrue, the Eighth Circuit held
that “due process does not afford social security claimants an absolute right to
cross-examine individuals who submit a report.” 533 F.3d 658, 665 (8th Cir. 2008);
see also Hurd v. Astrue, 621 F.3d 734 (8th Cir. 2010); cf. Obermoeller v. Astrue,
No. 4:07-CV-1222-DJS, 2008 WL 4279616, at *14 (E.D. Mo. July 22, 2008)
(holding that due process was violated when the ALJ did not provide notice to the
claimant regarding evidence obtained post-hearing).
It is therefore necessary to determine whether the purported failure to
submit interrogatories to the vocational expert deprived the plaintiff of due process.
Here, the ALJ submitted the request for further interrogatories to plaintiff’s counsel,
thus affording him the opportunity to submit inquiries. That action comported with
the notice requirement of due process. The next question is whether the failure to
submit plaintiff’s interrogatories violated his rights or constituted a failure to fully
and fairly develop the record. See Rahe v. Astrue, 840 F.Supp.2d 1119, 1139 (N.D.
Iowa 2011). Here, the ALJ’s exclusion of these questions did not deprive the
plaintiff of the opportunity to develop his case. See Kelly v. Colvin, No. 4:13-CV-

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1891-CDP, 2015 WL 94252, at *4 (E.D. Mo. Jan. 7, 2015). Accordingly, plaintiff’s
due process rights were not violated.
VI. Conclusion
For the reasons discussed above, the Court finds that the Commissioner’s
decision is supported by substantial evidence in the record as a whole.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
affirmed.
A judgment in accordance with this Memorandum and Order will be entered
separately.
___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 22nd day of March, 2017.

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