Moore v. Astrue
Filing
21
ORDER and OPINION Affirming Commissioner's Final Decision Denying Benefits. Signed on May 22, 2013 by District Judge Ortrie D. Smith. (Moore, Terri)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
KELLEY R. MOORE,
)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)
Case No. 11-4309-CV-C-ODS
ORDER AND OPINION AFFIRMING
COMMISSIONER’S FINAL DECISION DENYING BENEFITS
Pending is Plaintiff's appeal of the Commissioner of Social Security=s final
decision denying her application for disability and Supplemental Security Income
benefits. The Commissioner's decision is affirmed.
Plaintiff was born in January 1969, earned her GED, and has prior work
experience as a cook. She alleges she became disabled on July 25, 2009, due to a
combination of hypertension, depression, degenerative disc disease, osteoarthritis in
both knees, and obesity. In terms of her physical condition, the ALJ found Plaintiff
retained the residual functional capacity to perform sedentary work so long as she had
the option to sit or stand at will. This aspect of the ALJ’s decision is not challenged so
there is no need to discuss it or the underlying facts further.
With respect to Plaintiff’s mental and emotional impairments, the Record reveals
that Plaintiff began receiving treatment shortly after her alleged onset date. She sought
treatment at Pathways Community Healthcare (“Pathways”) in late October 2009, at
which time she was diagnosed (by Dr. Ambreen Ahmed) as suffering from major
depressive disorder, PTSD, and borderline personality disorder. Her GAF score was
assessed at 57 with moderate symptoms, and she was prescribed medication. R. at
531-33. Her medications were adjusted in January and February 2010,and her
condition improved as she had moved out of a shelter and into permanent housing. R.
at 523-30. In April, Plaintiff reported that she was volunteering full-time at the Salvation
Army, and her GAF score was 68, and the therapist assigned to her by Pathways, Gary
Lembke, wrote a rather positive note about Plaintiff’s condition. R. at 569-71. In July,
Plaintiff told Dr. Umonoibalo Ehimare that her condition had improved over the past
year. R. at 573-74. In October, Plaintiff was still volunteering daily at the Salvation
Army. R. at 580.
Pathways’ records reflect little change until approximately January 2011, when
Plaintiff told Lembke that she was no longer volunteering and was staying at home,
playing video games, and worrying about the upcoming administrative hearing in this
case. She also told Lembke that if she was awarded disability benefits she would
resume working at the Salvation Army. R. at 696. However, on February 7 the
community support specialist assigned by Pathways, Susan Hoellering, visited Plaintiff
at the Salvation Army where she “volunteers . . . to prevent isolation and to help
others.” R. at 699. On February 23, she confirmed to Lembke that she was still
volunteering at the Salvation Army. R. at 701. Plaintiff’s ensuing appointments
reflected her anxiety over the outcome of the hearing, financial and family matters, and
other temporary stressors. Nonetheless, on March 2, 2011, her GAF score was
assessed at 60. R. at 705. Nothing in Pathways’ record suggests Plaintiff was
debilitated or unable to work.
On March 2, Lembke wrote a letter expressing his opinion that Plaintiff’s
“depressive symptoms and anxiety could prevent [her] from performing her work duties
three or more days a month. [Her] attendance is also dependant on some other
unkown variables including, but not limited, [her] work schedule, the environment of
employment and job duties. I feel that if [she] were to be employed in a fast paced
environment, she would not be able to keep up.” R. at 675.
At the hearing – which took place on February 23, 2011 – Plaintiff denied working
at the Salvation Army. She told the ALJ she tried to work there at Christmas but “it
didn’t work out.” R. at 44-45. She also testified that she could not work because she
could not concentrate, experienced mood swings, and had a hard time getting up every
day. R. at 38-40. Hoellering also testified, but her testimony was limited. She
explained that she had been assigned to Plaintiff in January 2011 and had not brought
her file, so she was not familiar with all the facts about her condition. Hoellering
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testimony was brief and consisted of relaying Plaintiff’s report that some weeks she did
not go to the Salvation Army because she was depressed and anxious and did not feel
like getting out of bed or being around people. R. at 46-47.
The ALJ first found Plaintiff’s mental impairments did not meet or equal Listing
12.04. He then considered the report of an examining consultant (Dr. Mark Altomari)
and the testimony of an expert who summarized Plaintiff’s medical records (Dr. Robert
Borda) and Plaintiff’s daily activities, and concluded Plaintiff was not as limited by her
mental condition as she claimed at the hearing. R. at 26-28. He found Plaintiff’s
mental condition limited her to remembering, understanding, and carrying out simple
instructions, performing simple tasks, and making simple work-related decisions. The
combination of physical and mental impairments left her incapable of performing her
past work as a cook, but based on a vocational expert’s testimony the ALJ found
Plaintiff could perform work as bench assembler, table worker, or document preparer.
The sole issue Plaintiff raises relates to Hoellering’s testimony and Lembke’s
March 2 letter. Plaintiff contends the ALJ erred in failing to explain why he was not
deferring to their opinions. The argument contains a false assumption: in truth, the law
did not require the ALJ to defer to either person’s opinion. While certain treating
sources are entitled to deference in appropriate circumstances, therapists are not
included in the definition of “treating sources.” E.g., Lacroix v. Barnhart, 465 F.3d 881,
885-86 (8th Cir. 2006); Tindell v. Barnhart, 444 F.3d 1002, 1005 (8th Cir. 2006). The
reasoning of these cases is simple: social security regulations define who is entitled to
deference, and the omission of therapists from that list means therapists are not entitled
to deference. This same reasoning applies to Hoellering: no regulation provides that
opinions of community support specialists are entitled deference or great weight.
Plaintiff also faults the ALJ for failing to mention Hoellering’s testimony. This
argument has no impact on the ALJ’s decision because Hoellering’s testimony provided
little value. She had been associated with Plaintiff for less than two months total, met
Plaintiff on three occasions before the hearing (as ascertained by the records from
Pathways, R. at 698-99, 703), and her brief testimony consisted almost entirely of
statements Plaintiff made to her.
Plaintiff does not explicitly challenge the Commissioner’s decision in any other
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respect, but her arguments could be viewed as implicitly contending the decision is not
supported by substantial evidence in the record as a whole. “[R]eview of the
Secretary=s decision [is limited] to a determination whether the decision is supported by
substantial evidence on the record as a whole. Substantial evidence is evidence which
reasonable minds would accept as adequate to support the Secretary=s conclusion.
[The Court] will not reverse a decision simply because some evidence may support the
opposite conclusion.@ Mitchell v. Shalala, 25 F.3d 712, 714 (8th Cir. 1994) (citations
omitted). Though advantageous to the Commissioner, this standard also requires that
the Court consider evidence that fairly detracts from the final decision. Forsythe v.
Sullivan, 926 F.2d 774, 775 (8th Cir. 1991) (citing Hutsell v. Sullivan, 892 F.2d 747, 749
(8th Cir. 1989)). Substantial evidence means Amore than a mere scintilla@ of evidence;
rather, it is relevant evidence that a reasonable mind might accept as adequate to
support a conclusion. Gragg v. Astrue, 615 F.3d 932, 938 (8th Cir. 2010). The Court
agrees with the ALJ’s finding that Plaintiff volunteered at the Salvation Army, and this
activity was inconsistent with the limitations she alleged in her testimony. The records
from Pathways are also notable, mostly for their failure to corroborate Plaintiff’s
testimony or otherwise suggest she was limited to a degree greater than that found to
exist by the ALJ.
For these reasons, the Commissioner’s final decision denying benefits is
affirmed.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
DATE: May 22, 2013
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