Robertson v. Astrue
Filing
13
ORDER Affirming Commissioner's Decision. Signed on 1/10/14 by Chief District Judge Greg Kays. (Francis, Alexandra)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
BRENDA F. ROBERTSON,
Plaintiff,
v.
CAROLYN W. COLVIN,1
Commissioner of Social Security,
Defendant.
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No. 4:12-cv-1419-DGK-SSA
ORDER AFFIRMING COMMISSIONER’S DECISION
Plaintiff Brenda Robertson (“Robertson” or “Plaintiff”) seeks judicial review of the
Commissioner of Social Security’s (the “Commissioner’s”) denial of her applications for
disability insurance benefits under Title II of the Social Security Act (“the Act”), 42 U.S.C. §§
401, et. seq., and supplemental security income (“SSI”) based on disability under Title XVI of
the Act, 42 U.S.C. §§ 1381, et. seq. The Administrative Law Judge (“ALJ”) found Robertson
had multiple severe impairments, including Hepatitis C, residual effects of MRSA infection,
degenerative disc disease of the lumbar spine, depression, panic disorder, generalized anxiety
disorder, and a history of substance abuse, but she retained the residual functional capacity
(“RFC”) to perform work as a mail clerk, price marker, and electrical assembler.
After carefully reviewing the record, the Court AFFIRMS the Commissioner’s denial of
benefits.
1
Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013. Pursuant to
Federal Rule of Civil Procedure 25(d), she is substituted for Michael J. Astrue as the defendant in this suit.
Factual and Procedural Background
The medical record is summarized in the parties’ briefs and is repeated here only to the
extent necessary.
Plaintiff filed her application for disability insurance benefits and SSI benefits in October
2007, alleging a disability onset date of May 1, 2004. The Commissioner denied her applications
at the initial claim level, and on January 8, 2010, ALJ Deborah Van Vleck held that Plaintiff was
not disabled as defined in the Act. On October 25, 2010, the Appeal’s Council denied Plaintiff’s
request for review. Subsequently, Plaintiff appealed to this Court alleging a variety of errors in
the ALJ’s opinion. On January 3, 2012, this Court remanded the case to the ALJ because she
relied upon the opinion of a single decision maker in formulating Plaintiff’s RFC. The Court
also advised the ALJ to explicitly consider and discuss the third party statement of Plaintiff’s
fiancé, James Firebaugh.
On remand, the case was assigned to another ALJ, Michael Lehr, who conducted another
hearing. On August 16, 2012, he issued an opinion finding that Plaintiff was not disabled as
defined in the act. On December 7, 2012, after the ALJ’s decision became final, Plaintiff
appealed the decision to this Court. Plaintiff has exhausted all of her administrative remedies
and judicial review is now appropriate under 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3).
Standard of Review
A federal court’s review of the Commissioner of Social Security’s decision to deny
disability benefits is limited to determining whether the Commissioner’s findings are supported
by substantial evidence on the record as a whole. Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir.
2011). Substantial evidence is less than a preponderance, but enough evidence that a reasonable
mind would find it sufficient to support the Commissioner’s decision. Id. In making this
assessment, the court considers evidence that detracts from the Commissioner’s decision, as well
2
as evidence that supports it. McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000). The court
must “defer heavily” to the Commissioner’s findings and conclusions. Hurd v. Astrue, 621 F.3d
734, 738 (8th Cir. 2010). The court may reverse the Commissioner’s decision only if it falls
outside of the available zone of choice, and a decision is not outside this zone simply because the
court might have decided the case differently were it the initial finder of fact. Buckner, 646 F.3d
at 556.
Analysis
In determining whether a claimant is disabled, that is, unable to engage in any substantial
gainful activity by reason of a medically determinable impairment that has lasted or can be
expected to last for a continuous period of not less than twelve months, 42 U.S.C. § 423(d), the
Commissioner follows a five-step sequential evaluation process.2
Plaintiff contends the ALJ erred in formulating Plaintiff’s residual functional capacity
(“RFC”) by: (1) failing to properly assess Plaintiff’s credibility; (2) failing to consider the third
party statement of Plaintiff’s mother, Christine Goetz (“Ms. Goetz”); (3) failing to give any
weight to the opinion of Plaintiff’s treating physician, Dr. William Irby, D.O. (“Dr. Irby”); (4)
failing to include limitations on Plaintiff’s ability to interact with peers and supervisors; and (5)
failing to consider Plaintiff’s low Global Assessment of Functioning (“GAF”) scores. Plaintiff
2
The five-step process is as follows: First, the Commissioner determines if the applicant is currently engaged in
substantial gainful activity. If so, he is not disabled; if not, the inquiry continues. At step two the Commissioner
determines if the applicant has a “severe medically determinable physical or mental impairment” or a combination
of impairments. If so, and they meet the durational requirement of having lasted or being expected to last for a
continuous 12-month period, the inquiry continues; if not, the applicant is considered not disabled. At step three the
Commissioner considers whether the impairment is one of specific listing of impairments in Appendix 1 of 20
C.F.R. § 404.1520. If so, the applicant is considered disabled; if not, the inquiry continues. At step four the
Commissioner considers if the applicant’s residual functional capacity (“RFC”) allows the applicant to perform past
relevant work. If so, the applicant is not disabled; if not, the inquiry continues. At step five the Commissioner
considers whether, in light of the applicant’s age, education and work experience, the applicant can perform any
other kind of work. 20 C.F.R. § 404.1520(a)(4)(i)-(v); King v. Astrue, 564 F.3d 978, 979 n.2 (8th Cir. 2009).
Through step four of the analysis the claimant bears the burden of showing that he is disabled. After the analysis
reaches step five, the burden shifts to the Commissioner to show that there are other jobs in the economy that the
claimant can perform. King, 564 F.3d at 979 n.2.
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also contends that the ALJ erred at step five because he failed to prove that Plaintiff could
perform work as a mail clerk, price marker, and electrical assembler. The Court addresses each
argument below.
A. The ALJ properly considered Plaintiff’s credibility.
Plaintiff argues that the ALJ erred in discounting Plaintiff’s credibility because objective
medical evidence actually supports Plaintiff’s subjective complaints and the ALJ improperly
considered Plaintiff’s noncompliance with prescribed treatment.
The ALJ’s evaluation of a claimant’s credibility is crucial to the RFC determination
because it influences the inclusion or exclusion of alleged impairments. Tellez v. Barnhart, 403
F.3d 953, 957 (8th Cir. 2005). Thus, the credibility inquiry is often the threshold step in the
ALJ’s RFC determination.
Id.
Credibility questions concerning a plaintiff’s subjective
testimony are “primarily for the ALJ to decide, not the courts.” Baldwin v. Barnhart, 349 F.3d
549, 558 (8th Cir. 2003). In analyzing a claimant’s subjective complaints of pain, the ALJ
considers the entire record, including medical records; statements from the plaintiff and third
parties; the claimant’s daily activities; the duration, frequency and intensity of pain; the dosage,
effectiveness, and side effects of medication; precipitating and aggravating factors; and
functional restrictions. 20 C.F.R. § 404.1529; Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
1984). When the ALJ articulates the inconsistencies that undermine the claimant’s subjective
complaints and those inconsistencies are supported by the record, the ALJ’s credibility
determination should be affirmed. Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004).
The ALJ articulated a variety of well-supported reasons for discrediting Plaintiff’s
subjective complaints. First, the ALJ identified that Plaintiff’s complaints of disabling back pain
and other ailments, which allegedly rendered her effectively immobile, were unsupported by the
objective medical evidence. R. at 917. Such a finding is supported by substantial evidence.
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An ALJ may consider the lack of objective medical evidence supporting a plaintiff’s
subjective complaints as one factor in assessing credibility. Forte v. Barnhart, 377 F.3d 892,
895 (8th Cir. 2004). While some medical evidence in the record supports Plaintiff’s complaints
of back pain, the medical evidence on a whole belies Plaintiff’s allegations to the extent she
claims disabling limitations. Dr. John Sand, M.D., who performed a consultative exam on
Plaintiff in 2011, reported that Plaintiff could bend ninety degrees while sitting, she had a normal
gait, and she exhibited no spinal tenderness. R. at 1794. Similarly, after reviewing Plaintiff’s
medical records, Dr. Joan Singer, Ph.D., remarked that Plaintiff significantly exaggerated her
limitations to the extent she claimed debilitating mental and physical limitations. R. at 1675-76.
Several diagnostic tests also demonstrate the inconsistency between Plaintiff’s subjective
complaints and the actual objective medical evidence. CT scans of Plaintiff’s back taken in
March 2008, August 2008, and April 2009 revealed that she only exhibited mild structural
abnormalities, including mild disc space narrowing, and slight disc bulging at two locations, and
degenerative facet disease at three locations. R. at 612, 701, 1563. On August 10, 2010, and
May 18, 2012, Plaintiff underwent x-rays on her back, which corroborated the existence of only
mild abnormalities. R. at 1584, 1826. Also, as noted in the ALJ’s opinion, there is no record
evidence that Plaintiff’s other severe physical impairments—Hepatitis C and the residual effects
of MRSA—resulted in any significant functional limitations. Finally, despite Plaintiff’s claims
of disabling mental impairments, the majority of the objective record evidence suggests that
Plaintiff exaggerated the functional impact of her mental impairments. R. at 230-31, 319-25,
712, 916-18, 1165-1680. Thus, the record evidence supports the ALJ’s decision to discredit
Plaintiff’s subjective complaints due to inconsistency with the medical evidence.
The ALJ also properly considered Plaintiff’s noncompliance with prescribed treatment.
Although not dispositive on the issue of disability, the ALJ may consider the plaintiff’s history of
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noncompliance with prescribed medical treatment as one factor in the credibility analysis. See
Guillams v. Barnhart, 393 F.3d 798, 802 (8th Cir. 2005). On numerous occasions, doctors
remarked that Plaintiff failed to comply with treatment recommendations, including follow-ups
with primary physicians and specialists. R. at 705, 1582. Thus, the ALJ was warranted in
discounting Plaintiff’s credibility for her noncompliance.
Finally, the ALJ discredited Plaintiff’s credibility due to her consistent drug-seeking
behavior. In evaluating a plaintiff’s credibility, the ALJ may consider whether a pattern of drugseeking behavior discredits complaints of disabling pain. See Anderson v. Shalala, 51 F.3d 777,
780 (8th Cir. 1995). Here, the ALJ found that Plaintiff’s complaints of disabling back pain were
undermined by a pattern of Plaintiff allegedly falling, visiting the emergency room complaining
of severe back pain, and obtaining pain medication despite the fact that the objective medical
tests repeatedly showed only minor abnormalities and no acute injuries. R. 918. The record
evidence supports this finding. Several doctors and other hospital personnel repeatedly remarked
that Plaintiff exhibited drug-seeking behavior during emergency visits for back pain. R. at 608,
811, 918, 1788-90. Also, as discussed more thoroughly above, the diagnostic tests consistently
demonstrated only minor structural abnormalities.
Therefore, the ALJ was warranted in
discrediting Plaintiff’s subjective complaints due to this alleged drug-seeking behavior.
B. The ALJ’s failure to discuss the third party statement of Ms. Goetz is harmless
error.
Plaintiff contends that the ALJ failed to discuss or even acknowledge a third party
statement from Plaintiff’s mother, Ms. Goetz. Relying on this Court’s earlier ruling that directed
the ALJ to discuss the third party statement from Plaintiff’s fiancé, James Firebaugh, Plaintiff
argues that the Court should once again remand the case for the ALJ to reconsider the
Commissioner’s denial of benefits in light of Ms. Goetz’s statement.
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To assist the ALJ in evaluating the claimant’s credibility and formulating her RFC, an
ALJ is obligated to consider third party statements regarding a claimant’s functional limitations.
See 20 C.F.R. §§ 404.1529(c)(1)-(3), 404.1529(a), 404.1545(a)(3); SSR 85-16; SSR 96-7p; SSR
96-8p. An ALJ’s failure to acknowledge a third party statement in her opinion is, at a minimum,
a procedural error. See Buckner v. Astrue, 646 F.3d 549, 559-60 (8th Cir. 2011). Whether this
error is prejudicial or merely represents a deficiency in opinion-writing technique depends on a
variety of considerations, including: whether other, distinct errors also support remand; whether
the ALJ properly assessed the claimant’s credibility; and whether the record evidence also
discredits the unacknowledged third party statement. Buckner, 646 F.3d at 559-60.3
Although the ALJ clearly erred in completely failing to mention Ms. Goetz’s statement,
the error was harmless. As discussed above, the ALJ conducted a well-reasoned credibility
analysis, which effectively undermined the majority of Plaintiff’s subjective complaints to the
extent they alleged disabling limitations.
This same record evidence also undermines the
majority of observations in Ms. Goetz’s statement. R. at 917-18. Additionally, Ms. Goetz’s
observations are almost identical, or, at the very least, largely duplicative of the observations in
Mr. Firebaugh’s opinion, which the ALJ explicitly rejected in his opinion as being unsupported
by the medical evidence. Id.; compare R. at 1192-95 (noting the effects of various physical and
3
Relying on Willcockson v. Astrue, 540 F.3d 878 (8th Cir. 2008) and several district court cases, see e.g., Arn v.
Astrue, 4:10-CV-01239-NKL, 2011 WL 3876418 (W.D. Mo. Sept. 1, 2011) (failure to discuss third party statement
required remand), Plaintiff contends that the ALJ’s failure to discuss Ms. Goetz’s statement requires remand as a
matter of law. The Court disagrees. In rejecting a similar argument in Buckner, the Eighth Circuit distinguished
Willcockson as a case involving multiple other procedural errors and a clearly underdeveloped credibility evaluation.
Buckner, 646 F.3d at 559-60. Similarly, in the district court cases Plaintiff relies upon, including this Court’s prior
decision, the ALJs committed other errors requiring remand. See Pryor v. Astrue, 4:11-CV-01254-NKL, 2012 WL
3016722, at *5 (W.D. Mo. July 23, 2012) (“The Court finds that [the ALJ’s failure to discuss a third party
statement], combined with other deficiencies identified in this Order, necessitates remand.”) (emphasis added);
Robertson v. Astrue, No. 10-1247-CV-W-DGK-SSA, 2012 WL 11120, at *2 (W.D. Mo. Jan. 3, 2012) (holding, prior
to addressing the ALJ’s failure to discuss Plaintiff’s fiancé’s statement, that the ALJ’s adoption of a single decision
maker’s opinion constituted reversible error). Here, the ALJ provided a well-reasoned and well-supported
credibility analysis and no other errors necessitate remand. Thus, this case clearly falls within the purview of
Buckner rather than Willcockson.
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mental impairments) with R. at 1196-99 (same). Consequently, the ALJ’s failure to discuss Ms.
Goetz’s statement does not require remand.
C. The ALJ did not erroneously weigh the opinion evidence.
Plaintiff argues that the ALJ erred in giving no weight to the opinion of her treating
physician, Dr. Irby. In response, the Commissioner contends that the ALJ provided a wellreasoned and well-supported basis for giving Dr. Irby’s opinion no weight, and, thus, this Court
should not disturb the ALJ’s decision.
An ALJ should usually assign controlling weight to a treating physician’s opinion if that
opinion is well-supported by, and consistent with, other evidence in the record. Myers v. Colvin,
721 F.3d 521, 524 (8th Cir. 2013) (citing 20 C.F.R § 404.1527(c)(2)). A treating physician’s
opinion, however, “is entitled to controlling weight only to the extent it is consistent with
medically acceptable clinical or laboratory diagnostic data.” Casey v. Astrue, 503 F.3d 687, 692
(8th Cir. 2007); see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). A treating physician’s
opinion is not afforded controlling weight when the opinion is “internally inconsistent,” Myers,
721 F.3d at 525, or if a conflict exists between the treating physician’s opinion and other
substantial evidence of the record. See Brown v. Astrue, 611 F.3d 941, 951 (8th Cir. 2010).
Where, as here, the record contains differing medical opinions, it is the ALJ’s responsibility to
resolve conflicts among them. Finch v. Astrue, 547 F.3d 933, 936 (8th Cir. 2008). Once the
ALJ has articulated the weight afforded to a physician’s opinion, the court only inquires to
whether substantial evidence supports the ALJ’s analysis, not whether the evidence could have
supported a different conclusion in the first instance. See Goff v. Barnhart, 421 F.3d 785, 790-91
(8th Cir. 2005).
The ALJ provided several well-supported reasons for discounting Dr. Irby’s opinion. As
the ALJ articulated, there exists an arguable conflict between portions of Dr. Irby’s treatment
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notes and his functional capacity form. Specifically, Dr. Irby’s treatment notes document normal
reflexes, normal sensory functions, normal motor functions, negative results on straight leg raise
tests, normal musculoskeletal exams, and no soft tissue swelling at times. R. at 1382-1416,
1684-85, 1806-07. But despite these notes, Dr. Irby’s functional capacity form suggests Plaintiff
was essentially bedbound. R. at 1832-35. These arguable inconsistencies justify the ALJ’s
decision to reject Dr. Irby’s opinion. See Strongson v. Barnhart, 361 F.3d 1066, 1070-71 (8th
Cir. 2004).
The ALJ also did not err in discounting Dr. Irby’s residual capacity form because it was
conclusory and primarily based upon Plaintiff’s subjective complaints, rather than objective
clinical findings. Dr. Irby’s opinion consisted of a check-mark form with no explanations or
reference to any clinical findings that supported the limitations articulated on the form. R. at
1832-35. Such forms are of limited value in evaluating a claimant’s disability. McCoy v. Astrue,
648 F.3d 605, 615 (8th Cir. 2011). Moreover, the only clinical findings in Dr. Irby’s treatment
notes supporting any physical functional limitations regard the back pain Plaintiff exhibited upon
palpation or range of motion tests. R. at 1387-1411. However, the ALJ did not err in rejecting
these treatment notes because the findings were primarily based upon subjective complaints, not
objective clinical findings or tests. Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007). In fact,
Dr. Irby’s treatment notes are devoid of any reference to x-rays, CT scans, MRIs, or any other
objective tests, which would support the significant limitations articulated in Plaintiff’s
functional capacity form. In absence of diagnostic data, Dr. Irby’s opinion was primarily based
upon Plaintiff’s subjective complaints, and such reliance was dubious given Plaintiff’s pattern of
symptom exaggeration and drug-seeking behavior. R. at 1675-76.
The ALJ also properly considered the inconsistency between Dr. Irby’s opinion and other
record evidence. Dr. Sand’s opinion, which the ALJ gave greatest weight, articulated far less
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functional restrictions than Dr. Irby’s opinion. R. at 1793-1801. Additionally, as discussed
above, the x-rays and CT scans in the record only revealed minor structural abnormalities.
Because substantial evidence supports the reasons articulated for discounting Dr. Irby’s opinion,
the ALJ did not err in giving his opinion no weight.
D. The ALJ did not err by failing to include a limitation regarding Plaintiff’s
interaction with peers or supervisors.
Next, Plaintiff alleges that the ALJ erred in formulating Plaintiff’s RFC. Dr. Singer
checked boxes on the mental residual functional capacity assessment form (“MRFC”) indicating
Plaintiff was moderately limited in her ability to interact with the general public, co-workers, and
supervisors. R. at 1679. In Plaintiff’s RFC, the ALJ excluded Plaintiff from any work involving
contact with the general public, but he did not place any limitations on Plaintiff’s ability to
interact with the supervisors or co-workers. R. at 914-15. Because the ALJ precluded Plaintiff
from working with the general public presumably based on the check-marked box in the MRFC,
Plaintiff reasons that the ALJ should have also explicitly included a limitation in the RFC
addressing Plaintiff’s inability to interact with co-workers and supervisors. The Court disagrees.
While Dr. Singer marked the moderately limited boxes regarding Plaintiff’s interaction
with co-workers and supervisors, Dr. Singer also clarified the extent of these limitations in the
narrative section of the MRFC. As regards Plaintiff’s social interaction limitations, Dr. Singer
remarked that “[P]laintiff can interact adequately with peers and supervisors in setting with low
demand for social interaction.” R. at 1680. However, Dr. Singer provided no indication that
Plaintiff could work adequately in positions involving interaction with the public. Id. When the
check-marked boxes are considered in light of this narrative, one plausible conclusion is that Dr.
Singer precluded Plaintiff from positions involving interaction with the general public, but not
positions involving interaction with co-workers and peers. See Moore v. Astrue, 623 F.3d 599,
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602 (8th Cir. 2010) (“[I]f it is possible to draw two inconsistent positions from the evidence and
one of those positions represents the ALJ’s findings, we must affirm the ALJ’s decision.”). The
opinion of Dr. Keith Allen, Ph.D., which identified no significant limitations on Plaintiff’s ability
to interact with peers and supervisors, also supports this conclusion. R. at 300-16. Because
substantial evidence supports the ALJ’s decision to not include any limitations regarding
Plaintiff’s interaction with co-workers and supervisors, the ALJ did not err.
As a corollary to the preceding argument, Plaintiff contends that the ALJ erred in not
providing a narrative discussion of why he did not include a limitation regarding co-workers and
supervisors. This argument lacks merit. Although the ALJ must provide a general discussion
identifying the evidence supporting the limitations included in the RFC, the ALJ is not required
to list specific evidence related to each alleged limitation included or excluded from the RFC.
See McCoy, 648 F.3d at 615. In the ALJ’s four-page RFC discussion, he provided a sufficient
explanation of the medical and non-medical evidence supporting his decision. R. at 914-919.
Thus, the ALJ did not err.4
E. The ALJ did not err by failing to discuss Plaintiff’s Global Assessment Functioning
scores.
Plaintiff argues that the ALJ’s failure to discuss Plaintiff’s GAF scores requires remand.
Relying on Pates-Fires v. Astrue, 564 F.3d 935 (8th Cir. 2009) for the proposition that a GAF
score of 50 or less is incompatible with the ability to work, Plaintiff contends that the ALJ’s
4
Even assuming that the ALJ erred in not limiting Plaintiff to jobs with “low demand for social interaction” and not
explaining why he failed to include limitations on interactions with co-workers or peers, the error represents merely
a deficiency in opinion writing. See Hepp v. Astrue, 511 F.3d 798, 806 (8th Cir. 2008). All the positions ultimately
selected by the ALJ—mail clerk, price marker, and electrical assembler—do not require significant social
interaction. See Dictionary of Occupational Titles (DOT), “Mail Clerk,” 1991 WL 671813 (4th ed. 1991) (noting
that position requires an insignificant amount of interaction with others); Dictionary of Occupational Titles (DOT),
“Marker,” 1991 WL 671802 (4th ed. 1991) (same); Dictionary of Occupational Titles (DOT), “Subassembler,” 1991
WL 679729 (4th ed. 1991) (same). Thus, even assuming the ALJ had adopted these alleged limitations, Plaintiff
would have still qualified for these positions.
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failure to discuss several of Plaintiff’s GAF scores in the 45-50 range constitutes reversible error.
R. at 231, 325, 827, 1378. The Court disagrees.
Although it is preferable for the ALJ to at least consider a claimant’s GAF scores since
they assist the ALJ in “assessing the level of a claimant’s functioning,” Halverson v. Astrue, 600
F.3d 922, 930-31 (8th Cir. 2010), an ALJ’s failure to discuss the scores does not require remand
when other record evidence undermines the scores’ probative value. Wright v. Astrue, 489 Fed.
Appx. 147, 149 (8th Cir. 2012). Here, portions of the record evidence discussed in the ALJ’s
opinion undermine the GAF scores to the extent they suggest Plaintiff is unable to work. The
ALJ cited a number of medical reports in which Plaintiff exhibited only minor symptomology,
seemed alert and oriented, possessed an intact attention span, and demonstrated the ability to
concentrate. R. 230-231, 319, 708-22, 1619. Similarly, during his consultative examination of
Plaintiff, Dr. Sand observed that “[Plaintiff’s] mental status was intact with speech and language
normal…[s]he was awake, alert and oriented.” R. at 1794. More importantly, after a review of
Plaintiff’s medical records, including those involving the GAF scores, both Dr. Allen and Dr.
Singer opined that Plaintiff still retained the mental capacity to perform work. R. at 305-16,
1665-80. Given this significant evidence, the ALJ did not err in failing to discuss Plaintiff’s
GAF scores.
F. The ALJ sustained his burden at step five of the sequential process.
In Plaintiff’s final assignment of error, she argues that the ALJ failed to sustain his
burden of proving that Plaintiff could work as a mail clerk, price marker, or electrical assembler.
Plaintiff contends that the check-marked portion of Dr. Singer’s opinion suggests that Plaintiff is
markedly limited in the ability to carry out detailed instructions, R. at 1678, but the RFC and
hypothetical only limited Plaintiff to simple, unskilled work. R. 912. Plaintiff concludes that if
the ALJ had explicitly included the no detailed instructions limitation in the RFC and
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hypothetical to the vocational expert (“VE”), the VE would not have identified the positions of
mail clerk, price marker, and electrical assembler because all three require the employee to be
able to carry out detailed but uninvolved instructions. The Court finds no error here.
An ALJ may rely on the testimony of a vocational expert to satisfy his step five burden.
Renstrom v. Astrue, 680 F.3d 1057, 1067 (8th Cir. 2012). Although the hypothetical must
include all impairments “substantially supported by the record as a whole,” id., it need not distill
every limitation in precise diagnostic terminology. See Warburton v. Apfel, 188 F.3d 1047, 1050
(8th Cir. 1999). Rather, the hypothetical must only “capture the concrete consequences of a
claimant’s deficiencies.” Cox v. Astrue, 495 F.3d 614, 620 (8th Cir. 2007).
The ALJ’s hypothetical adequately captured the concrete consequences of claimant’s
mental impairments. In the hypothetical and RFC, the ALJ limited Plaintiff to simple, unskilled
work. R. at 989. According to the Program Operations Manual System (“POMS”),5 the mental
demands of simple, unskilled work includes, among others, the ability to “understand, carry out,
and remember simple instructions.” DI 25020.010, available at https://secure.ssa.gov. Even
though Dr. Singer suggested in one portion of her opinion that Plaintiff was markedly limited in
her ability to carry out detailed instructions, R. at 1678, the narrative portion of her opinion
clearly states Plaintiff could understand and carry out simple instructions. R. 1680. Moreover,
the other abilities articulated in Dr. Singer’s narrative also coincide with the requirements of
unskilled work. R. at 1680; POMS, DI 25020.010, available at https://secure.ssa.gov. Thus, the
ALJ’s use of the terminology simple, unskilled work accurately captured the concrete
consequences of the mental impairments that were supported by substantial evidence.
5
Although the POMS is not binding on ALJs, it is a persuasive authority for courts to use in analyzing an ALJ’s
findings. See Hartfield v. Barnhart, 384 F.3d 986, 988 (8th Cir. 2004).
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Plaintiff also appears to argue that there is conflict between the limitations in the
hypothetical and the Dictionary of Occupation Titles (“DOT”) descriptions for the three
positions. As discussed above, the ALJ limited Plaintiff to simple, unskilled work, but the VE
testified that Plaintiff could perform three positions, which all require at least level two reasoning
and the ability to carry out detailed but uninvolved instructions. This argument lacks merit.
When faced with a similarly worded hypothetical and VE testimony, the Eighth Circuit, in
Moore v. Astrue, explicitly addressed and rejected this argument.
623 F.3d at 604-605.
Accordingly, the Court finds that there is no conflict between the hypothetical limitations and the
DOT.6
Conclusion
For the foregoing reasons, the Court AFFIRMS the Commissioner’s decision.
IT IS SO ORDERED.
Date:
January 10, 2014
/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT
6
In attempt to distinguish Moore, Plaintiff contends that the reasoning in McPheeters v. Astrue, No. 12-CV-00137DGK, 2013 WL 523674 (W.D. Mo. Feb. 12, 2013) applies in this case. In McPheeters, this Court ordered remand
when there existed an obvious conflict between the hypothetical limitations and the DOT job description. See
McPheeters, 2013 WL 523674, at *3 (noting obvious conflict between ALJs finding that Plaintiff was unable to
perform jobs that involved “detailed tasks or detailed instructions” and the DOT job descriptions which require the
“ability to carry out detailed instructions”). Here, however, there is no obvious conflict. On the contrary, like the
hypothetical in Moore, the ALJ’s hypothetical limited Plaintiff to simple, unskilled work. Thus, Moore, rather than
McPheeters, controls.
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