Greenemay v. Astrue
ORDER and OPINION affirming Commissioner's final decision. Signed on 08/30/2011 by District Judge Ortrie D. Smith. (Will-Fees, Eva)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
ROBERTA M. GREENEMAY,
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Case No. 10-4254-CV-C-ODS
ORDER AND OPINION AFFIRMING COMMISSIONER’S FINAL DECISION
Pending is Plaintiff's request for review of the final decision of the Commissioner
of Social Security denying her disability application. The Commissioner's decision
Plaintiff is a 42-year-old female with a work history as a telemarketer. At the
hearing before the ALJ, she testified she was mainly unable to work due to her
emotional problems. The ALJ found Plaintiff was under a disability due to her mental
limitations, but the ALJ also found her substance abuse was a contributing factor
material to the determination of disability.
Between February 2006 and November 2007, Plaintiff was admitted to the
hospital numerous times for overdosing on medications. Plaintiff later described these
as “suicide attempts” during a consultative examination. At least one of Plaintiff’s
doctors during this time noted Plaintiff had also been cited for medical malingering and
drug-seeking behavior. A medical assessment completed by Plaintiff’s psychiatrist,
Allison Felton, MD, concluded Plaintiff was extremely limited in her ability to work. Dr.
Felton noted Plaintiff had a long-term history of depression, anxiety, and mood
instability, and that she could act out toward others and become angry or impulsive.
The form required Dr. Felton to make her assessment “based solely on [the patient’s]
mental condition, aside from any drug and/or alcohol abuse problems.”
In December 2007, Plaintiff planned to enter a long-term treatment center. She
was terminated from the treatment program after she took another participant’s Soma.
After this incident, however, her drug abuse issues – at least what was reflected in her
records – dramatically decreased.
Plaintiff was noted to be not as depressed, with racing thoughts and slight
irritability, in April 2008. In May 2008 she was “‘defensive’” and “‘paranoid’” but also
“doing pretty well,” although later in the month she reported crying spells. She reported
being “more depressed” in June 2008. But when she went for a hepatitis C evaluation
in July 2008, she appeared “[a]lert, oriented, . . . [and] . . . healthy appearing.” During a
later examination she had “good direct eye contact . . . and appropriate speech and
behavior. She [was] not frenetic or restless.”
Plaintiff saw Andrew Quint, MD, on August 4, 2008. Dr. Quint had been treating
Plaintiff for back pain. Dr. Quint noted Plaintiff’s psychiatrist had switched her
medication and Plaintiff was experiencing worsening irritability with tearful fits. She was
switched back to Lithium, which she later reported to be helpful. Dr. Quint also advised
Plaintiff that her smoking 1 1/2 packs of cigarettes daily and obesity was contributing to
the acceleration of her chronic degenerative disc disease. He advised her to quit
smoking and lose weight, but she never quit smoking and no significant weight loss was
In general, after Plaintiff’s substance abuse ended she gained some
improvement in her mental health symptoms but continued to experience them. During
her hearing with the ALJ on July 1, 2009, she testified she felt anxiety on a daily basis,
she was sometimes unable to get out of bed, she would cry seemingly for no reason,
and she was unable to “pull [herself] together.” She stated that, since she stopped
drinking, she was “not as bad as” before, she had not overdosed on any medications,
and she had not “fantasized very much” about dying; however, she continued to have
hopeless thoughts. She testified she has about 5 days out of the month when she
cares about nothing, does not bathe, and spends about 10 hours during the daytime in
After the hearing, the ALJ ordered Plaintiff to be examined by psychologist Laura
L. Brenner, Ph.d. Dr. Brenner administered the Minnesota Multiphasic Personality
Inventory, but Plaintiff’s responses resulted in an “invalid profile” which Dr. Brenner
interpreted to mean Plaintiff was “over-reporting symptoms.” Although Plaintiff’s social
skills were noted to be good during her brief interview, Dr. Brenner found that Plaintiff
was “irritable and prone to conflict” and “would be prone to outbursts with those she
interacts with on an ongoing basis.” Dr. Brenner also found Plaintiff moderately limited
in her abilities to accept instructions and respond appropriately to criticism from
supervisors, interact appropriately with the public, get along with co-workers and peers,
and maintain socially appropriate behavior. In addition, Dr. Brenner noted Plaintiff
“would have marked difficulties setting goals and plans on her own.” But Plaintiff’s
statements to Dr. Brenner regarding Plaintiff’s previous drug abuse were interpreted by
Dr. Brenner to be inconsistent with the medical records, so in answering whether
substance abuse contributed to any of Plaintiff’s limitations, Dr. Brenner wrote,
“Unknown – she denies any current drug or alcohol abuse and I have no evidence to
the contrary. Her report of past drug abuse was inconsistent with her record.”
The ALJ concluded Plaintiff’s mental limitations, including the effects of
substance abuse, would qualify as listed impairments under 20 C.F.R. Part 404,
Subpart P, Appendix 1,§§ 12.04, 12.06, or 12.09. But excluding the substance abuse,
the ALJ found Plaintiff’s remaining mental limitations would not qualify as “severe” at the
step two of the sequential five-step analysis. The ALJ proceeded to complete the
sequential analysis because Plaintiff was found to have severe impairments of hepatitis
C and chronic musculoskeletal-type complaints. The ALJ considered all Plaintiff’s
limitations in concluding she was capable of performing the full range of light work, that
she was able to return to her prior work as a telemarketer, and that a significant number
of jobs existed in the national economy she could perform.
“The Social Security Act provides for judicial review of final decisions of the
Commissioner, which is limited to determining whether substantial evidence in the
record as a whole supports the Commissioner's decision, and whether the
Commissioner correctly applied the relevant legal standards.” Mason v. Barnhart, 406
F.3d 962, 964 (8th Cir. 2005) (citations omitted). Substantial evidence is defined as
“relevant evidence that a reasonable mind might accept as adequate to support a
conclusion.” Martise v. Astrue, 641 F.3d 909, 920-21 (8th Cir. 2011) (citation omitted).
“The court must . . . take into consideration the weight of the evidence in the record and
apply a balancing test to evidence which is contradictory.” Id. at 921 (citation omitted).
A claimant cannot be found disabled if alcoholism or drug addiction is a
contributing factor material to the determination of disability. See 42 U.S.C.
§ 423(d)(2)(C). The ALJ’s analysis in Plaintiff’s case complied with 20 C.F.R.
§ 404.1535, which outlines the procedure for handling claims with medical evidence of
drug addiction or alcoholism.
First, the ALJ must determine whether the claimant is disabled without
discounting any effects of drug addiction or alcoholism. § 404.1535(a). That is what the
ALJ did when he found Plaintiff met a Listing. Next, the ALJ must determine what
limitations would remain if the drug or alcohol use stopped. § 404.1535(b)(2). The ALJ
here found Plaintiff would still have some mental limitations, as well as hepatitis C and
chronic musculoskeletal-type complaints. Lastly, the ALJ must determine whether
those remaining limitations are disabling. Id. With respect to her remaining mental
limitations, the ALJ at this step of the analysis found they would not be severe, meaning
they were found to be not disabling.
Plaintiff contends the ALJ committed reversible error by finding she did not have
a severe mental impairment. “An impairment is not severe if it amounts only to a slight
abnormality that would not significantly limit the claimant's physical or mental ability to
do basic work activities.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). “Basic
work activities” are “the abilities and aptitudes necessary to do most jobs” and include
“[r]esponding appropriately to supervision, co-workers and usual work situations.”
An ALJ assessing the severity of mental impairments must follow the special
technique found at § 416.920a. This section requires the ALJ to rate the degree of
functional limitation resulting from mental impairments. § 416.920a(b)(2). There are
four broad functional areas in which the ALJ rates the degree of a claimant’s functional
limitation: activities of daily living; social functioning; concentration, persistence, or pace;
and episodes of decompensation. § 416.920a(c)(3).
The ALJ found Plaintiff’s remaining mental impairments were not severe by rating
the degree of Plaintiff’s limitation in the first three functional areas as “mild” and “none”
in the fourth area. Some observations by Plaintiff’s treatment providers of her following
her last overdose support the ALJ’s finding. For example, Plaintiff’s mood was noted at
times to be “euthymic” (normal) and she was noted to have good eye contact and fair
insight; she was also frequently noted to be under no distress. Although some of the
doctors’ mental status examinations also contain contrary observations that detract from
the ALJ’s finding, this evidence is not so one-sided that the ALJ was compelled to find
Plaintiff’s mental limitations were severe. See Finch v. Astrue, 547 F.3d 933, 935 (8th
Cir. 2008) (noting ALJ should be affirmed if court can draw two inconsistent positions
from the evidence and one of those positions represents the Commissioner’s findings).
There are two medical source statements in the record regarding Plaintiff’s
mental impairments – Dr. Brenner’s or Dr. Felton’s – and neither of them support the
ALJ’s finding regarding the severity of Plaintiff’s mental limitations. The question is
whether the ALJ had a reasonable basis for discounting these opinions. See 20 C.F.R.
§ 416.927 (stating rules for evaluating opinion evidence).
The reasons the ALJ gave that were specific to Dr. Brenner’s and Dr. Felton’s
opinions were invalid. Regarding Dr. Brenner’s opinion, the ALJ found, “Dr. Brenner’s
evaluation took into consideration [Plaintiff’s] substance abuse and as such is not
applicable at this step of the evaluation.” But when Dr. Brenner was asked whether the
abuse of alcohol or drugs contributed to the limitations she found, she stated, “Unknown
– she denies any current drug or alcohol abuse and I have no evidence to the contrary.
Her report of past drug abuse was inconsistent with her record.” The ALJ essentially
found drugs or alcohol contributed to Dr. Brenner’s limitations based on Dr. Brenner’s
statement she did not know whether drugs or alcohol contributed to the limitations. That
finding was unjustified.1
In discussing Dr. Felton’s assessment, the ALJ noted it “makes no mention of
[Plaintiff’s] substance abuse.” But the very first page of the assessment form instructed
Dr. Felton to make her assessment “based solely on [Plaintiff’s] mental condition, aside
from any drug and/or alcohol abuse problems.” Given these instructions, it is hardly
surprising Dr. Felton did not mention substance abuse.2 The second reason the ALJ
gave for discounting Dr. Felton’s opinion was because Dr. Felton subsequently
terminated Plaintiff from care because she took a non-prescribed drug while in a
treatment center. The Court could find nothing in § 416.927 (governing opinion
evidence) that would justify disregarding a treating source’s opinion for this reason.
The Court nevertheless concludes the ALJ had other, valid reasons for
discounting Dr. Brenner’s and Dr. Felton’s opinions and finding Plaintiff’s mental
limitations were non-sevre. The ALJ – referring to medical source statements in the
record generally – found they were “by and large based on the claimant’s
representations to the individuals completing the reports” and Plaintiff was “not a
reliable source of information.” Plaintiff contends the ALJ pointed to nothing in the
record that established Dr. Felton’s opinion was based by and large on Plaintiff’s
Plaintiff contends the ALJ erred by not forwarding a letter from her physician
treating her pain complaints to Dr. Brenner. The letter stated the physician had not
seen evidence of drug abuse. But Dr. Brenner based her statement regarding drug
abuse on the inconsistency between Plaintiff’s reports and the record. There is little
likelihood the letter would have caused Dr. Brenner to change her statement.
The Commissioner suggests Dr. Felton did not mention substance abuse
because she was not “fully aware of Plaintiff’s prescription drug abuse problem at the
time she gave her opinion.” But even if she was not “fully aware,” she was indisputably
aware of Plaintiff’s hospital admission for an overdose about 1 month earlier. To
conclude Dr. Felton did not mention substance abuse because she was not “fully
aware” of it – rather than because she was simply complying with the directions on the
form – would not be reasonable.
representations. But one factor in the evaluation of opinion evidence is
“[s]upportability”: an opinion is given greater weight if it is supported by medical signs,
laboratory findings, and good explanations. § 416.927(d)(3). Dr. Felton’s opinion was
supported by no clinical testing. The only objective evidence noted by Dr. Felton was
Plaintiff’s long-term diagnoses, which do not themselves show a degree of limitation,
and her then-recent hospitalization, which was for a drug overdose.
Dr. Felton’s other explanations for the limitations she found are apparently based
solely on Plaintiff’s reports: Dr. Felton wrote Plaintiff “has difficulty maintaining stability,”
“has a lot of anxiety when around others,” and “still is unpredictable.” Likewise, Dr.
Brenner’s findings that Plaintiff was moderately limited in her abilities to interact and
respond to others appear to be entirely based on Plaintiff’s representations.
The ALJ was justifiably suspicious of medical source findings derived from
Plaintiff’s representations. Notably, when Dr. Brenner performed a clinical test on
Plaintiff, it resulted in an invalid profile which Dr. Brenner interpreted to mean Plaintiff
was “over-reporting symptoms.” Plaintiff’s reported much worse symptoms to Dr.
Brenner during that consultative examination than she had reported to Dr. Brenner
during another examination just 3 months before. Dr. Brenner believed Plaintiff was
untruthful regarding her overdose history. Plaintiff was (unknown to Dr. Brenner)
untruthful about her marijuana use: she told Dr. Brenner she had last used marijuana 6
months before her evaluation, but she reported to her psychiatrist 10 days later that she
last used marijuana the month before.
Other evidence shows that Plaintiff had been cited by her doctors for medical
malingering and drug-seeking behavior. She told Dr. Brenner she had not driven in 10
years but stated during the hearing she lost her license in 2006 for driving under the
influence. Plaintiff’s earnings records shows a sporadic work history even before her
alleged onset date of June 2, 1998, which suggests she is unmotivated to work. And
she has earned less than $1,000.00 total since 1998, yet she has been able to afford
smoking at least 1 pack of cigarettes daily, an inconsistency that was never explained.
The Court holds these are all sufficient reasons for the ALJ to discredit Plaintiff’s
credibility. See Jones v. Astrue, 619 F.3d 963, 973 (8th Cir. 2010) (holding ALJ could
discredit claimant based on doctor’s observation indicating claimant feigned symptoms);
Finch, 547 F.3d at 935-36 (noting ALJ may discount testimony which is inconsistent with
record as whole; credibility findings are for ALJ in first instance, and when ALJ explicitly
discredits claimant and gives good reasons for doing so, his judgment is entitled to
deference); Woolf v. Shalala, 3 F.3d 1210, 1214 (8th Cir.1993) (noting sporadic work
history in affirming ALJ’s credibility analysis).
Even if the ALJ erred in finding Plaintiff’s mental limitations were not severe, the
Court would conclude the error was harmless because the ALJ continued with the
analysis and considered Plaintiff’s mental limitations in determining her RFC.3 Plaintiff
does not specifically challenge the ALJ’s light-work RFC determination. All the reasons
for discounting Plaintiff’s credibility the Court has already discussed are applicable at
this step of the analysis. Substantial evidence in the record as a whole supports the
ALJ’s determination that Plaintiff’s mental limitations do not restrict her from engaging in
the full range of light work.
Plaintiff next argues the ALJ erred by not making explicit findings supporting his
decision Plaintiff could return to her prior work as a telemarketer. Plaintiff argues the
ALJ failed to compare the duties of a telemarketer to the mental limitations set forth by
Dr. Brenner. But since the ALJ was justified in discounting the limitations set forth by
Dr. Brenner, the ALJ did not need to do this comparison. And even the ALJ did err, the
Court would conclude the error was harmless because the ALJ went on to conclude
there were a significant number of jobs in the national economy Plaintiff could perform.
This finding was based on Medical-Vocational rules 202.20 through 202.22 of 20 C.F.R.
Part 202, Subpart P, Appendix 2, Table No. 2, and Plaintiff makes no argument that it
The Court does not interpret Nicola v. Astrue, 480 F.3d 885, 887 (8th Cir.
2007) as establishing a rule of per se reversibility regarding an ALJ’s error at step two.
The Eighth Circuit in a previous case suggested such an error could be harmless if the
evidence is “so clearly against the claimant.” Caviness v. Massanari, 250 F.3d 603, 605
(8th Cir. 2001). And at least one district court in this circuit has held error at step two
was not by itself reversible error where the ALJ continues with the evaluation in
determining the claimant’s RFC. See Lorence v. Astrue, 691 F. Supp. 2d 1008, 1028
(D. Minn. 2010).
The Commissioner’s decision is affirmed.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
DATE: August 30, 2011
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