Rose v. Berryhill

Filing 28

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the relief requested in Plaintiffs Complaint and Brief in Support of Complaint is DENIED. [Docs. 1 , 22 .]IT IS FURTHER ORDERED that the Court will enter a judgment in favor of the Commissioner affir ming the decision of the administrative law judge.IT IS FURTHER ORDERED that the Clerk of Court shall substitute Andrew M. Saul for Nancy A. Berryhill in the court record of this case.. Signed by Magistrate Judge Nannette A. Baker on 09/23/2019. (AAS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

TAMRA L. ROSE,
Plaintiff,
v.
ANDREW M. SAUL1,
Commissioner of Social Security,
Defendant.

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Case No. 4:18-CV-43 NAB

MEMORANDUM AND ORDER
This matter is before the Court on Tamra L. Rose’s appeal regarding the denial of
supplemental security income (“SSI”) under the Social Security Act. The Court has jurisdiction
over the subject matter of this action under 42 U.S.C. § 405(g). The parties have consented to the
exercise of authority by the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). [Doc.
8.] The Court has reviewed the parties’ briefs and the entire administrative record, including the
transcript and medical evidence. Based on the following, the Court will affirm the Commissioner’s
decision.
Issue for Review
Rose presents one issue for review. She asserts that the residual functional capacity
determination (“RFC”) and the vocational expert testimony based on the RFC are not supported

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At the time this case was filed, Nancy A. Berryhill was the Acting Commissioner of Social Security. Andrew M.
Saul became the Commissioner of Social Security on June 4, 2019. When a public officer ceases to hold office while
an action is pending, the officer’s successor is automatically substituted as a party. Fed. R. Civ. P. 25(d). Later
proceedings should be in the substituted party’s name and the Court may order substitution at any time. Id. The Court
will order the Clerk of Court to substitute Andrew M. Saul for Nancy A. Berryhill in this matter.

by substantial evidence. The Commissioner asserts that the administrative law judge’s (“ALJ”)
decision is supported by substantial evidence in the record as a whole and should be affirmed.
Standard of Review
The Social Security Act defines disability as an “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which can
be expected to result in death or has lasted or can be expected to last for a continuous period of not
less than 12 months.” 42 U.S.C. § 416(i)(1)(A).
The standard of review is narrow. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.
2001). This Court reviews the decision of the ALJ to determine whether the decision is supported
by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). Substantial evidence is less
than a preponderance, but enough that a reasonable mind would find adequate support for the
ALJ’s decision. Smith v. Shalala, 31 F.3d 715, 717 (8th Cir. 1994). The Court determines whether
evidence is substantial by considering evidence that detracts from the Commissioner’s decision as
well as evidence that supports it. Cox v. Barnhart, 471 F.3d 902, 906 (8th Cir. 2006). The Court
may not reverse just because substantial evidence exists that would support a contrary outcome or
because the Court would have decided the case differently. Id. If, after reviewing the record as a
whole, the Court finds it possible to draw two inconsistent positions from the evidence and one of
those positions represents the Commissioner’s finding, the Commissioner’s decision must be
affirmed. Masterson v. Barnhart, 363 F.3d 731, 736 (8th Cir. 2004).
The Court must affirm the Commissioner’s decision so long as it conforms to the law and
is supported by substantial evidence on the record as a whole. Collins ex rel. Williams v. Barnhart,
335 F.3d 726, 729 (8th Cir. 2003).

“In this substantial-evidence determination, the entire

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administrative record is considered but the evidence is not reweighed.” Byes v. Astrue, 687 F.3d.
913, 915 (8th Cir. 2012).
Discussion
Rose contends that the ALJ’s RFC should have included marked limitations in interacting
appropriately with the public, supervisors, and co-workers and responding to routine changes in a
work setting as set forth in Dr. Thomas Spencer’s psychological evaluation.
The RFC is a function-by-function assessment of an individual’s ability to do sustained
work-related physical and mental activities on a regular and continuing basis. 2 SSR 96-8p, 1996
WL 374184, at *1 (July 2, 1996). It is the administrative law judge’s (“ALJ”) responsibility to
determine the claimant’s RFC based on all relevant evidence, including medical records,
observations of treating physicians and others, and the claimant’s own descriptions of his
limitations. Pearsall, 274 F.3d at 1217. “It is the claimant’s burden, and not the Social Security
Commissioner’s burden, to prove the claimant’s RFC.” Baldwin v. Barnhart, 349 F.3d 549, 556
(8th Cir. 2003). An RFC determination made by an ALJ will be upheld if it is supported by
substantial evidence in the record. See Cox, 471 F.3d at 907. “Because a claimant’s RFC is a
medical question, an ALJ’s assessment of it must be supported by some medical evidence of the
claimant’s ability to function in the workplace.” Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir.
2016). There is no requirement, however, that an RFC finding be supported by a specific medical
opinion. Hensley, 829 F.3d at 932 (RFC affirmed without medical opinion evidence); Myers v.
Colvin, 721 F.3d 521, 527 (8th Cir. 2013) (same); Perks v. Astrue, 687 F.3d 1086, 1092-93 (8th
Cir. 2012) (same).

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A regular and continuing basis means 8 hours a day, for 5 days a week, or an equivalent work schedule. SSR 968p, 1996 WL 374184, at *1.

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In this case, the ALJ found that Rose had the severe impairments of unspecified mood
disorder, social anxiety disorder, and alcohol use disorder in sustained remission. (Tr. 12.) The
ALJ determined that Rose had the RFC to perform the full range of work at all exertional levels
with the following limitations: (1) simple, routine, repetitive tasks; (2) no fast-paced production
environments; (3) no contact with the general public; and (4) occasional, superficial interaction
with coworkers and supervisors, that do not require working in teams or in collaboration. (Tr. 14.)
Dr. Spencer conducted a psychological evaluation of Rose on October 20, 2016 as a
consultative psychological examiner for the Social Security Administration. (Tr. 643-51.) During
the mental status examination, Dr. Spencer observed that Rose’s motor behavior was within
normal limits, she cooperated with the examiner, and was a decent historian. She presented with
a depressed mood and restricted affect. She was alert and oriented to person, time, place, and
event. Although Dr. Spencer described her insight and judgment as questionable, her flow of
thought was intact and she did not appear paranoid or grandiose. He determined that she had
unspecified mood disorder, social anxiety disorder, and alcohol use disorder in sustained
remission. (Tr. 645.)
Dr. Spencer opined that Rose had a mild impairment in understanding, remembering, and
carrying out simple instructions. (Tr. 647.) He found that she had moderate limitation in ability
to make judgments on simple work related decisions. He opined that she had marked limitations
in understanding, remembering, and carrying out complex instructions and making judgments on
complex work-related decisions. He also opined that she had marked limitations in interacting
appropriately with the public, supervisors, and co-workers and responding appropriately to usual
work situations and to changes in a routine work setting. (Tr. 648.). Dr. Spencer opined Rose had

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a global assessment functioning (“GAF”) score range of 55-60. 3 On the GAF scale, a score from
51 to 60 represents moderate symptoms (e.g., flat affect and circumstantial speech, occasional
panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few
friends, conflicts with peers or co-workers).

Diagnostic and Statistical Manual of Mental

Disorders 32-34 (4th ed. Text Rev. 2000) (“DSM-IV-TR”).
The ALJ gave Dr. Spencer’s opinion considerable but limited weight. (Tr. 16.) The ALJ
stated that little weight was given to Dr. Spencer’s finding that Rose had marked limitations in
responding appropriately to usual work situations and to changes in routine work settings. (Tr.
16.) The ALJ found that there was little in the record from Dr. Spencer’s examination notes or the
record as a whole to indicate that Rose could not adapt to usual work changes. (Tr. 16.)
“State agency medical and psychological consultants and other program physicians,
psychologists, and other medical specialists are highly qualified physicians, psychologists, and
other medical specialists who are also experts in Social Security disability evaluation.” 20 C.F.R.
§ 416.927(e)(2)(i).

“Therefore, administrative law judges must consider findings and other

opinions of State agency medical and psychological consultants and other program physicians,
psychologists, and other medical specialists as opinion evidence,” except for the determination of
disability. 20 C.F.R. § 416.927(e)(2)(i). “Administrative law judges are not bound by any findings

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The GAF scale is “a numeric scale used to rate social, occupational, and psychological functioning on a
hypothetical continuum of mental-health illness.” Mabry v. Colvin, 815 F.3d 386, 391 n. 6 (8th Cir. 2016) (citing
Pates-Fire v. Astrue, 564 F.3d 935, 937 n.1 (8th Cir. 2009)). “The scale ranges from zero to one hundred.” Mabry,
815 F.3d at 391 n.6. A GAF score is a “subjective determination that represents the clinician’s judgment of the
individual’s overall level of functioning.” Jones v. Astrue, 619 F.3d 963, 973 (8th Cir. 2010). The most recent
edition of the Diagnostic and Statistical Manual of Mental Disorders discontinued use of the GAF scale. Even
before the DSM-V discontinued use of the GAF scores, the Commissioner declined to fully endorse GAF scores for
use in social security and SSI disability programs. Halverson v. Astrue, 600 F.3d 922, 930-31 (8th Cir. 2010).
“GAF scores may be relevant to a determination of disability based on mental impairments. But an ALJ may afford
greater weight to medical evidence and testimony than to GAF scores when the evidence requires it.” Mabry, 815
F.3d at 391 (internal citations omitted). GAF scores have no direct correlation to the severity standard used by the
Commissioner. Wright v. Colvin, 789 F.3d 847, 855 (8th Cir. 2015) (citing 65 Fed. Reg. 50746, 50764-65).

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made by State agency medical or psychological consultants or other program physicians or
psychologists.” 20 C.F.R. § 416.927(e)(2)(i). Their opinions are evaluated under the standards
outlined in 20 C.F.R. § 416.927(c).
Based on the foregoing, the Court finds that the ALJ’s RFC determination is supported by
substantial evidence in the record as a whole. First, the ALJ’s RFC determination does not have
to mirror any particular doctor’s opinion, because the RFC is based on all of the evidence in the
record as a whole, including the claimant’s treatment records and an assessment of the claimant’s
credibility. The ALJ noted that Rose had a short yet “effective history” of treatment for her
impairments despite her lack of compliance. (Tr. 15.) The ALJ specifically noted that while Rose
alleged substantial symptoms, her treating providers often noted an “unremarkable mental
presentation.” (Tr. 15, 494-95, 508-511, 515-165, 534-35, 537-38, 541, 543-44, 547, 550.) The
ALJ also noted that Rose’s psychiatric nurse practitioner Pamela Faille questioned whether she
was malingering to get disability, because Rose was doing well despite not taking medication and
her behavior was not consistent with her allegations. (Tr. 16, 549-50.) Unlike Dr. Spencer and
Dr. Gowda Bhaskar, who examined Rose once, Ms. Faille treated Rose eight times.
Second, the Court does not find that the RFC determination is inconsistent with the
limitations contained in Dr. Spencer’s opinion. Reviewing Dr. Spencer’s opinion closely, he does
not opine that Rose would be precluded from working. A “marked” limitation was not the most
restrictive limitation considered in the report. Dr. Spencer could have also found that Rose had an
“extreme” limitation, which is defined as “no useful ability to function in this area.” (Tr. 647.)
Dr. Spencer did not opine that Rose had any extreme limitations. Marked limitation was defined
as “serious limitation in this area. There is a substantial loss in the ability to effectively function.”
(Tr. 647.) The RFC determination is sufficiently restrictive, in consideration of her mental

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impairments. The Court notes that the RFC’s limitations of performing simple, routine, repetitive
tasks, other than in fast-paced production environments with no contact with the general public,
occasional superficial contact with co-workers and supervisors, that do not require working in
teams or collaboration fit well within the limitations the ALJ found to be credible in consideration
of the record as a whole. The record as a whole does not support any additional limitations being
included in the RFC. The Court finds that the RFC determination is supported by some medical
evidence and substantial evidence in the record as a whole.
Finally, the Court finds that the vocational expert’s response to the ALJ’s hypothetical
question constitutes substantial evidence. “The ALJ’s hypothetical question to the vocational
expert needs to include only those impairments that the ALJ finds are substantially supported by
the record as a whole.” Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir. 2006). These impairments
must be based on the “substantial evidence on the record and accepted as true and capture the
concrete consequences of those impairments.” Jones, 619 F.3d at 972. If the hypothetical question
is properly formulated, then the testimony of the vocational expert constitutes substantial evidence.
Roe v. Chater, 93 F.3d 672, 676 (8th Cir. 1996).
In this case, the ALJ’s hypothetical question included all of the limitations set forth in the
ALJ’s description of Rose’s RFC. The Court has found that the ALJ’s RFC determination was
supported by substantial evidence, therefore, the hypothetical question was proper and the
vocational expert’s answer constituted substantial evidence supporting the Commissioner’s denial
of benefits. Id.
Conclusion
The Court finds that substantial evidence supports the ALJ’s decision as a whole. As noted
earlier, the ALJ’s decision should be affirmed “if it is supported by substantial evidence, which

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does not require a preponderance of the evidence but only enough that a reasonable mind would
find it adequate to support the decision, and the Commissioner applied the correct legal standards.”
Turpin v. Colvin, 750 F.3d 989, 992-93 (8th Cir. 2014). The Court cannot reverse merely because
substantial evidence also exists that would support a contrary outcome, or because the court would
have decided the case differently. Id. Substantial evidence supports the Commissioner’s final
decision.
Accordingly,
IT IS HEREBY ORDERED that the relief requested in Plaintiff’s Complaint and Brief
in Support of Complaint is DENIED. [Docs. 1, 22.]
IT IS FURTHER ORDERED that the Court will enter a judgment in favor of the
Commissioner affirming the decision of the administrative law judge.
IT IS FURTHER ORDERED that the Clerk of Court shall substitute Andrew M. Saul for
Nancy A. Berryhill in the court record of this case.

NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
Dated this 23rd day of September, 2019.

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