Murray v. Colvin
Filing
20
ORDER denying plaintiff's motion for judgment and affirming the decision of the Commissioner. Signed on March 14, 2014 by Magistrate Judge Robert E. Larsen. (Haydon, William)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
KENNETH LEWIS MURRAY,
)
)
Plaintiff,
)
)
v.
)
)
CAROLYN COLVIN, Acting Commissioner )
of Social Security,
)
)
Defendant. )
Case No.4:13-CV-00219-REL-SSA
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Kenneth Lewis Murray seeks review of the final decision of the Commissioner
of Social Security denying plaintiff’s application for supplemental security income benefits
under Title XVI of the Social Security Act (“the Act”). Plaintiff argues that the Administrative
Law Judge (ALJ) (1) failed to find plaintiff’s impairments meet the requirements of Listing
12.04 on affective disorders; (2) failed to properly evaluate the opinions of plaintiff’s treating
psychiatrist and a consulting psychologist; and (3) erred by relying on a faulty residual functional
capacity (RFC) to find that plaintiff could perform light work. I find that the substantial evidence
in the record as a whole supports the ALJ’s conclusion that plaintiff is not disabled. Therefore,
plaintiff’s motion for summary judgment will be denied and the decision of the Commissioner
will be affirmed.
I.
COMMISIONER’S DECISION
On September 21, 2009, plaintiff protectively filed his application for supplemental
security income (Tr. 243-48). On January 22, 2010, plaintiff’s claim was denied at the initial
level (Tr. 77-81). On July 6, 2011, an administrative hearing was held before the ALJ (Tr.
56-73). At the conclusion of that hearing, the ALJ determined it was necessary to supplement the
medical record by the performance of consultative examinations. On August 3, 2011, plaintiff
underwent a consultative psychological examination (Tr. 856-63). On August 11, 2011, plaintiff
underwent a consultative physical examination (Tr. 871-77). On April 3, 2012, a supplemental
hearing was held before the ALJ (Tr. 26-48). On April 26, 2012, the ALJ found that plaintiff is
not under a disability as defined in the Act (Tr. 8-25). On February 4, 2013, the Appeals Council
denied plaintiff’s request for review (Tr. 1-6). Therefore, the April 26, 2012 decision of the ALJ
stands as the final decision of the Commissioner.
II.
STANDARD FOR JUDICIAL REVIEW
Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for judicial review of a “final
decision” of the Commissioner. The standard for judicial review by the federal district court is
whether the decision of the Commissioner was supported by substantial evidence. 42 U.S.C. §
405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Mittlestedt v. Apfel, 204 F.3d 847,
850-51 (8th Cir. 2000); Johnson v. Chater, 108 F.3d 178, 179 (8th Cir. 1997); Andler v. Chater,
100 F.3d 1389, 1392 (8th Cir. 1996). The determination of whether the Commissioner’s decision
is supported by substantial evidence requires review of the entire record, considering the
evidence in support of and in opposition to the Commissioner’s decision. Universal Camera
Corp. v. NLRB, 340 U.S. 474, 488 (1951); Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir.
1989). “The Court must also take into consideration the weight of the evidence in the record and
apply a balancing test to evidence which is contradictory.” Wilcutts v. Apfel, 143 F.3d 1134,
1136 (8th Cir. 1998) (citing Steadman v. Securities & Exchange Commission, 450 U.S. 91, 99
(1981)).
Substantial evidence means “more than a mere scintilla. It means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales,
402 U.S. at 401; Jernigan v. Sullivan, 948 F.2d 1070, 1073 n. 5 (8th Cir. 1991). However, the
2
substantial evidence standard presupposes a zone of choice within which the decision makers can
go either way, without interference by the courts. “[A]n administrative decision is not subject to
reversal merely because substantial evidence would have supported an opposite decision.” Id.;
Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988).
III.
BURDEN OF PROOF AND SEQUENTIAL EVALUATION PROCESS
An individual claiming disability benefits has the burden of proving he is unable to return
to past relevant work by reason of a medically-determinable physical or mental impairment
which has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. § 423(d)(1)(A). If the plaintiff establishes that he is unable to return to past
relevant work because of the disability, the burden of persuasion shifts to the Commissioner to
establish that there is some other type of substantial gainful activity in the national economy that
the plaintiff can perform. Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000); Brock v. Apfel,
118 F. Supp. 2d 974 (W.D. Mo. 2000).
The Social Security Administration has promulgated detailed regulations setting out a
sequential evaluation process to determine whether a claimant is disabled. These regulations are
codified at 20 C.F.R. §§ 404.1501, et seq. The five-step sequential evaluation process used by
the Commissioner is outlined in 20 C.F.R. § 404.1520 and is summarized as follows:
1.
Is the claimant performing substantial gainful activity?
Yes = not disabled.
No = go to next step.
2.
Does the claimant have a severe impairment or a combination of impairments
which significantly limits his ability to do basic work activities?
No = not disabled.
Yes = go to next step.
3.
Does the impairment meet or equal a listed impairment in Appendix 1?
3
Yes = disabled.
No = go to next step.
4.
Does the impairment prevent the claimant from doing past relevant work?
No = not disabled.
Yes = go to next step where burden shifts to Commissioner.
5.
Does the impairment prevent the claimant from doing any other work?
Yes = disabled.
No = not disabled.
IV.
THE RECORD
The record consists of the testimony of plaintiff and Marianne K. Lumpe, M.A., a
vocational expert, at the July 5, 2011 initial hearing; the testimony of Nancy L. Winfrey, Ph.D., a
medical expert, and Jenifer Duchene, a vocational expert, at the April 3, 2012 supplemental
hearing; 1 and the documentary evidence admitted at the April 3, 2012 supplemental hearing.
A.
ADMINISTRATIVE REPORTS
The record contains the following administrative report, which shows plaintiff earned the
following income from 1971 through 2003:
Year
Earnings
Year
Earnings
1971
1988
$122.77
1972
507.20
1989
189.01
1973
.00
1990
119.35
1974
.00
1991
6.35
1975
395.00
1992
.00
1976
1,082.09
1993
.00
1977
1
$ 275.20
284.72
1994
.00
Although not under oath, plaintiff made several statements at the end of the April 2012 hearing (Tr. 46-48).
4
1978
.00
1995
.00
1979
.00
1996
.00
1980
3,280.40
1997
.00
1981
268.63
1998
.00
1982
473.87
1999
.00
1983
449.90
2000
.00
1984
.00
2001
.00
1985
961.54
2002
37.93
1986
290.92
2003
565.87
1987
.00
(Tr. 256).
B.
SUMMARY OF MEDICAL RECORDS
As summarized by plaintiff on appeal, the medical record reflects diagnosis and treatment
of multiple medical problems including poly-substance abuse, bipolar/depressive disorder,
anxiety disorder, schizoaffective disorder, and right-knee osteoarthritis.
C.
SUMMARY OF TESTIMONY
During the July 6, 2011 initial hearing, plaintiff and Marianne K. Lumpe, M.A., a
vocational expert, testified. During the April 3, 2012 supplemental hearing, Nancy Winfrey,
M.D., a medical expert, and Jenifer (Duchene) Telxeira, a vocational expert, testified.
1.
Plaintiff’s Testimony
At the July 6, 2011 hearing, plaintiff testified that he was then 53 years old, completed
the eleventh grade, and has a general equivalency degree (GED). Plaintiff stated that he was
released from prison on July 14, 2010, and he denied working since his released from prison.
5
Plaintiff reported that he had worked through a temp service at J.C. Penney’s before going to
prison (Tr. 61).
When questioned about his physical problems, plaintiff testified that his knees,
particularly the right knee, swell up and cause him pain. Plaintiff attributed the knee problems to
an incident in which he was shot in the lower extremities. Plaintiff reported a limited ability to
walk because of knee pain, but he acknowledged that he could walk farther with a cane. Plaintiff
said that the pain and swelling are worse when it is hot and humid (Tr. 62-63).
In addition to his knee pain, plaintiff testified that he is depressed. Plaintiff described
insomnia and nightmares resulting from a car wreck that occurred while he was being
transported from prison to his mother’s funeral. Plaintiff acknowledged that his medication
allows him to sleep five-and-one-half hours a night (Tr. 63-64). Plaintiff reported that he hears
voices telling him that people are going to hurt him. When hearing these voices, plaintiff said
that he cannot sit too long around people (Tr. 65-66). Plaintiff initially reported that he is unable
to concentrate (Tr. 66), however, he later reported that “the medication they [gave him] help[ed]
[him] to focus, stay focused” (Tr. 68). Plaintiff testified that he used all types of drugs in the past
“to try to take way [himself] from reality.” Plaintiff reported that “[e]ven before [he] used the
drugs, [he] was depressed.” Plaintiff stated that he realizes that illicit drugs make his mental
problems “more severe” and his physical problems “worse.” Plaintiff represented that he ceased
taking illicit drugs about seven or eight months before the July 2011 hearing (Tr. 66-68).
2.
Medical Expert’s Testimony
At the April 3, 2012 supplemental hearing, Nancy Winfrey, M.D., a medical expert,
testified at the request of the ALJ. Dr. Winfrey divided plaintiff’s mental problems between (1)
the poly-substance abuse and (2) the remaining affective and personality disorders (Tr. 31-32).
6
Dr. Winfrey identified the drug and alcohol abuse as the “primary difficulty regarding
[plaintiff’s] functioning” (Tr. 32). Functionally, the medical expert found that plaintiff has
moderate difficulties with activities of daily living, with and without the poly-substance abuse;
marked difficulties maintaining social functioning with the poly-substance abuse, but only
moderate difficulties without; mild difficulties maintaining concentration, persistence, and pace,
with and without the drugs and alcohol abuse; and minimal risk of decompensation when
abusing alcohol or illicit drugs but no risk when abstaining from such substances. (Tr. 32-33).
3.
Vocational Experts’ Testimony
At the July 6, 2011 hearing, Marianne K. Lumpe, a vocational expert, identified only one
past job for plaintiff: warehouse worker for J.C. Penney’s. The vocational expert classified the
job as medium and unskilled. However, the ALJ did not find that this temporary job was held
long enough to qualify as relevant past work (Tr. 68).
At the July 6, 2011 hearing, the ALJ posed a hypothetical question with a limitation to
medium work (Tr. 70). The hypothetical individual could lift and carry 50 pounds occasionally
and 25 pounds frequently; could sit six to eight hours during an eight-hour day; stand and walk
six hours out of eight hours; has unlimited postural abilities except no climbing ladders, ropes, or
scaffolds, no crawling, and no kneeling; could not interact with the general public; could
occasionally interact with co-workers and supervisors; and is limited to repetitive work without
any detailed instructions, i.e., SVP 2 or lower (Tr. 69). Ms. Lumpe opined that such an individual
could perform medium unskilled jobs including lab-equipment cleaner, linen-room attendant,
and porter (Tr. 70-71).
However, the expert also opined that the identified jobs would be precluded if the
hypothetical individual is off task and unable to do even simple jobs one-third of the workday;
7
misses more than 10 to 12 days of work a year; or requires breaks beyond the typical
mid-morning, lunch, and mid-afternoon breaks (Tr. 71-72).
At the April 3, 2012 hearing, the ALJ posed a hypothetical question with a limitation to
medium work (Tr. 40). The hypothetical individual could lift and carry 30 pounds occasionally
and 20 pounds frequently; could sit six to eight hours out of eight hours; stand and walk three to
four hours out of eight hours, but only one hour at a time; has unlimited postural abilities except
no climbing ladders, ropes, or scaffolds, no crawling, and no kneeling; could not interact with the
general public; could occasionally interact with co-workers and supervisors; and is limited to
repetitive work without any detailed instructions, i.e., SVP 2 or lower (Tr. 40-41). Ms. Duchene
opined that the 30-pound weight limit excluded medium work (Tr. 41). However, she opined that
such an individual could perform light unskilled jobs including electrical assembler, merchandise
marker, and mail clerk (Tr. 41-42). 2
Ms. Duchene opined that if the hypothetical individual has marked difficulty interacting
appropriately with supervisors or individuals, has deficits in attention and concentration that total
two-and-one-half hours or more in an eight-hour workday, such an individual would not be able
to maintain competitive employment (Tr. 43-44). Additionally, the expert opined that the typical
absenteeism tolerance for such unskilled work is one day a month (Tr. 44).
V.
FINDINGS OF THE ALJ
ALJ George M. Bock published his decision on April 26, 2012. The ALJ found that
plaintiff has not engaged in substantial gainful activity since he protectively filed his claim on
September 21, 2009 (Tr. 13). 3 The ALJ found that plaintiff’s substance abuse, depressive
2
On questioning by plaintiff’s counsel, Ms. Duchene reduced the incident rate of the identified occupations by 70%
due to the sit/stand option inherent in the walking/standing limit (Tr. 42-43).
3
Although plaintiff answered “no,” when asked at the July 2012 hearing if he had any kind of job since he got out
of prison in July 2010 (Tr. 62), the 2011 and 2012 medical records contain references to work activities with CWT
8
disorder, osteoarthritis of the right knee, personality disorder, and schizoaffective disorder are
severe impairments (Tr. 13-14).
The ALJ found that plaintiff’s substance-abuse disorder meets the severity requirements
of Listing 12.09 on substance-addiction disorders, in combination with Listings 12.04 on
affective disorders, 12.06 on anxiety disorders, and 12.08 on personality disorders, from the
application protected filing date, September 21, 2009, through November 30, 2010 (Tr. 14-.17).
However, when the substance abuse is not a factor for this period, the ALJ found that no Listing
is met (Tr. 18), that plaintiff retains the RFC to perform a wide range of light work (Tr. 18), that
plaintiff has no relevant past work (Tr. 18), and that plaintiff can perform other jobs existing in
significant numbers in the national economy (Tr. 19). Because alcoholism and drug addiction are
not bases for obtaining disability benefits, the ALJ found that plaintiff is not disabled for the
period from September 21, 2009 to November 30, 2010 (Tr. 19).
The ALJ then determined that there has been medical improvement in plaintiff’s
substance-addiction disorder as of December 1, 2010 (Tr. 20), and that plaintiff no longer meets
the severity requirements of Listing 12.09 as of that date (Tr. 20). For the period beginning on
December 1, 2010, the ALJ found that no impairment meets or equals the severity requirement
of a Listing (Tr. 20), that plaintiff retains the ability to perform a wide range of light work (Tr.
20), and that plaintiff can perform other jobs existing in significant numbers in the national
economy (Tr. 20-21). For the period beginning December 1, 2010, the ALJ found that plaintiff is
not disabled (Tr. 21).
VI.
ANALYSIS.
A.
LISTINGS
(compensated work therapy). However, on various questionnaires, wages from the CWT work are listed at less than
$1,000.00/month (Tr. 835-36, 841, 846, 847, 848,927-32, 934-35, 938, 944, 953, 970-72, 981-84, 986-999, 1003,
1006, 1014, and 1024).
9
Plaintiff first argues that the ALJ erred by failing to find that his mental health
impairments meet the severity requirements of Listing 12.04 on affective disorders. Plaintiff
argues that his signs and symptoms of sleep disturbance, mood disturbance, difficulty
concentrating, thoughts of suicide, hallucinations, and paranoid thinking meet the “A” criteria of
Listing 12.04, and that his marked difficulties in maintaining social function and marked
difficulties in maintaining concentration, persistence, or pace, meet the “B” criteria of Listing
12.04. The Commissioner responds that the ALJ properly determined that plaintiff’s remaining
impairments are not disabling without the effects of substance abuse prior to December 1, 2010
and not disabling after December 1, 2010 due to medical improvement and effective
management of plaintiff’s substance abuse disorder.
Listing 12.04 - Affective Disorder is met when the medical record documents a
disturbance of mood accompanied by a full or partial manic or depressive syndrome, and the
mood colors the plaintiff’s whole psychic life. In addition, the medical record must document
four of the following depressive characteristics:
•
Anhedonia or pervasive loss of interest in almost all activities;
•
Appetite disturbance with change in weight;
•
Sleep disturbance;
•
Psychomotor agitation or retardation;
•
Decreased energy;
•
Feelings of guilt or worthlessness;
•
Difficulty concentrating or thinking;
•
Thoughts of suicide; or
•
Hallucinations, delusions, or paranoid thinking.
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The depressive syndrome must also result in at least two of the following: (1) marked
restriction in activities of daily living; (2) marked difficulties in maintaining social functioning;
(3) marked difficulties in maintaining concentration, persistence, or pace; or (4) repeated
episodes of decompensation, each of extended duration. 20 C.F.R. Pt. 404, Subpt. P, App.1 §
12.04.
Alcoholism and drug addiction are not a basis for obtaining disability benefits. Contract
with America Advancement Act of 1996, Pub. L. No. 104-121, 110 Stat. 847 (amending 42
U.S.C. § 423(d)(2)); Kluesner v. Astrue, 607 F.3d 533, 537 (8th Cir. 2010), citing Pub.L. No.
104-121, 110 Stat. 852-56 (1996). The relevant provision of the law provides that “[a]n
individual shall not be considered to be disabled for purposes of this title if alcoholism or drug
addiction would (but for this subparagraph) be a contributing factor material to the
Commissioner’s determination that the individual is disabled.” P.L. No. 104-121 § 105(a)(1);
P.L. No. 104-121 § 105(b)(1) (amending SSI disability benefits under Title XVI).
Drug addiction or alcoholism is “material” when an individual would not be disabled if
alcohol or illicit drug use were to cease. 20 C.F.R. § 416.935; Brueggemann v. Barnhart, 348
F.3d 689, 694-95 (8th Cir. 2003) ("The plain text of the relevant regulation requires the ALJ first
to determine whether [plaintiff] is disabled. 20 C.F.R. § 404.1535(a) . . . The ALJ must reach this
determination initially . . ., using the standard five-step approach described in 20 C.F.R §
404.1520 without segregating out any effects that might be due to
substance use disorders. . . . The inquiry here concerns strictly symptoms, not causes . . . If the
gross total of a [plaintiff’s] limitations, including the effects of substance use disorders, suffices
to show disability, then the ALJ must next consider which limitations would remain when the
effects of the substance use disorders are absent." (citations and footnote omitted)).
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When it is determined that an individual’s remaining limitations are not disabling, the
Commissioner will find that the individual’s drug addiction or alcoholism is a contributing factor
material to the determination of disability. 20 C.F.R. § 416.935(b)(2)(i). When it is determined
that an individual’s remaining limitations are disabling, the Commissioner will find the
individual disabled independent of drug addiction or alcoholism, and will find that the drug
addiction or alcoholism is not a contributing factor material to the determination of disability. Id
at § 416.935(b)(2)(ii). In determining materiality under 42 U.S.C. § 423(d)(2)(c) or
1382c(a)(3)(J), the plaintiff bears the burden of proving that his or her alcoholism or drug
addiction is not a contributing factor material to his or her disability determination. Kluesner, at
537.
The Commissioner concedes that plaintiff has other mental problems, but argues that the
ALJ found that these are not of the severity to meet the requirements of Listing 12.04.
The administrative regulations do not require a plaintiff to be symptom free in order to be
found not disabled. Trenary v. Bowen, 898 F.2d 1361, 1364 (8th Cir. 1990) (the mere presence
of a mental disturbance is not disabling per se, absent a showing of severe functional loss
establishing an inability to engage in substantial gainful activity). Even though a plaintiff has
been prescribed antidepressant drugs, this is not evidence that the mental impairment is
disabling. Matthews v. Bowen, 879 F.2d 422, 424 (8th Cir. 1989) (prescription of antidepressant
drugs does not show that the claimant is disabled).
The ALJ noted that plaintiff has a long history of poly-substance abuse, primarily cocaine
and alcohol. The ALJ also found that plaintiff has a sporadic work history, has been incarcerated,
relapsed into drug abuse after he was released from his most recent incarceration, failed to
follow-up on sobriety and abstinence, complained about mental health symptoms that treating
12
sources opined were intertwined with his substance abuse, and was less than fully compliant in
the treatment of his emotional problems (Tr. 13). I find that treating records from the local
Veteran’s Administration Medical Center confirm these findings.
At the time plaintiff filed his claim, he was incarcerated at the Western Missouri
Correctional Center in Cameron, Missouri (Tr. 265-71). 4 On July 28, 2010, plaintiff told a
treating source that he had been released from prison on July 14, 2010 (Tr. 518). On August 30,
2010, plaintiff reported that he had “been ‘in an out of jail my whole life’ for various crimes
including assault, drugs, and stealing. He last served 5 years for receiving stolen goods.” Plaintiff
stated he had to serve the full sentence because he “kept getting into trouble, fighting, and stuff”
while in prison (Tr. 463). There was no use of alcohol, cocaine, or any other illicit drug while
plaintiff was incarcerated at the Western Missouri Correctional Center in 2005-2010. However,
plaintiff tested positive for cocaine, marijuana, opiates, and benzodiazepines when he was briefly
admitted to the Veterans Administration faculty on August 30, 2010 after having expressed plans
to kill someone who owed him money (Tr. 499; 436-508).
Plaintiff was referred to a rehabilitation program, which began on September 15, 2010.
On intake, plaintiff reported first using alcohol at age 15 and first using cocaine at age 22.
Plaintiff reported using of marijuana but denied using PCP, LSD, or heroin. Plaintiff “admit[ed]
to only 1 year in the past that he was able to stay sober, [plaintiff] admit[ed] to several eras of
incarceration that occurred because of [his history] of drug use, [c]ocaine ha[d] made his life
unmanageable. His drug use affected his relationships with his family and friends” (Tr. 398).
Plaintiff gave a history of being arrested over 10 times for a total lifetime incarceration of
23 years (Tr. 417). Plaintiff reported that prior to his incarceration in 2005, he drank a fifth of
4
An individual is not eligible for supplemental security income benefits for any month throughout which he is a
resident of a public institution. See 20 C.F.R. § 416.211. Prisons are public institutions.
13
brandy along with a few beers and wine every other day. Plaintiff stated that he had been
drinking about ½ pint of rum every day since his discharge from prison in July 2010 and that his
last drink was the day before he began the rehabilitation program (Tr. 421). Since his release
from prison, plaintiff reported that he had been using about ½-1 gram of cocaine each time he
ingested the drug. Plaintiff reported that he relapsed four times since July 2010 and that his last
use was three days before entering the rehabilitation program (Tr. 422).
Plaintiff graduated from the drug treatment program on October 6, 2010. His global
assessment of functioning (GAF) was 55 (Tr. 588). 5 However, on the evening of November 15
and the morning of November 16, 2010, plaintiff was seen in the emergency room at the local
Veteran’s Administration Medical Center. Plaintiff was eventually hospitalized, “because, even
after detoxing for a while he continued to have thoughts of self-harm and told [the staff
physician] he had a plan of walking into traffic.” Plaintiff admitted that he was not compliant
with treatment and his sobriety ended two days after discharge from the rehabilitation program.
Plaintiff described gradually increasing depression. Plaintiff told the doctor that “the only thing
he ha[d] an interest in [was] cocaine, he state[d] that his appetite [was] decreased, [he] ha[d] less
need for sleep, [he] ha[d] guilt over his drug use” and he had passing thoughts of suicide (Tr.
363). Plaintiff gave a history of using 100 dollars of cocaine and drinking a fifth of vodka.
Plaintiff tested positive for cocaine, marijuana, opiates, and benzodiazepines (Tr. 566).
Substantial evidence supports the finding of the ALJ that plaintiff’s mental impairments
meet the requirements of Listings 12.09, 12.04, 12.06, and 12.08, with consideration of the
poly-substance abuse, but do not meet the requirements of any Listing, including Listing 12.04,
without consideration of the poly-substance abuse from September 2009 to November 2010.
5
A GAF of 51-60 means 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 and
co-workers). Diagnostic and Statistical Manual of Mental Disorders 32 (Am. Psychiatric Ass’n. ed., 4th ed. 1994).
14
As noted by the ALJ, since November 2010, plaintiff has denied any use of illicit drugs
or alcohol, except for one beer in October 2011 (Tr. 931). Drug testing has been negative for
illicit drug use (Tr. 821-22, 898-99, 1045). I agree with the ALJ that plaintiff’s alcoholism and
drug addiction have been in remission since December 1, 2010.
At the same time, since December 1, 2010, plaintiff has not required any inpatient
hospitalization for his remaining mental health problems, e.g., affective disorder, anxiety
disorder, or schizoaffective disorder. While plaintiff continues to take prescription medication
for his emotional problems, he sees mental health providers on an infrequent basis. Plaintiff has
worked for CWT (compensated work therapy).
Although plaintiff alleges a long history of emotional problems and asserts that his
poly-substance abuse has been a method of self-medication for the psychiatric problems, the
poly-substance abuse dates back to age 15 for the alcohol and age 22 for the cocaine, far before
plaintiff alleges his emotional problems began.
While plaintiff has a valid argument as to his evidencing the signs and symptoms
required by the “A” criteria of Listing 12.04, the Commissioner is correct that plaintiff
minimizes the impact of his poly-substance abuse prior to December 1, 2010 and his
improvement since that date. Although plaintiff cites examples of continued functional
limitations after December 1, 2010, the record fails to support the level of severity advanced by
plaintiff. While there are some medical opinions supporting at least “marked” functional
limitations, the ALJ cited other evidence that contradicts these medical opinions.
Therefore, I find substantial evidence supports the ALJ’s finding that, absent the
poly-substance abuse, plaintiff’s affective disorder does not meet the severity requirements of
Listing 12.04.
15
B.
MEDICAL OPINIONS
Next, plaintiff contends that the ALJ improperly evaluated the opinions of the medical
sources.
I find conflicting medical opinions by a treating psychiatrist, an examining psychologist,
and a medical expert who testified at the supplemental hearing.
Medical source statements are medical opinions submitted by acceptable medical
sources, including treating sources and consultative examiners, about what an individual can still
do despite a severe impairment, in particular about an individual's physical or mental abilities to
perform work-related activities on a sustained basis. SSR 1996-5; see 20 C.F.R. §404.1513(a)
(defining “acceptable medical source”). Generally, the opinions of an examining psychologist or
physician should be given greater weight that the opinions of a source who had not examined the
claimant. Shontos v. Barnhart, 328 F.3d 418, 425 (8th Cir. 2003).
The opinion of a treating physician is “generally given controlling weight, but is not
inherently entitled to it.” Travis v. Astrue, 477 F.3d 1037, 1041 (8th Cir. 2007)(quoting Hacker v.
Barnhart, 439 F.3d 934, 937 (8th Cir. 2006). An ALJ may elect not to give controlling weight to a
treating physician when their opinions are “not supported by diagnoses based on objective
evidence” or if the opinions are “inconsistent with or contrary to the medical evidence as a
whole.” Id. A treating physician’s opinions may be entitled to less weight if the opinions are not
supported by his or her own treatment notes. Owen v. Astrue, 551 F.3d 792, 789-99 (8th Cir.
208).
First, plaintiff argues that the June 30, 2011, opinion of Michael G. Smith, M.D., his
treating psychiatrist, is entitled to controlling weight, or at least significant weight, because it is
based upon his personal treatment, as well as access to over 20 years of plaintiff’s treatment with
16
the Veteran’s Administration. In response, the Commissioner argues that the ALJ properly
considered and discussed Dr. Smith’s opinion, but found that plaintiff’s progress notes with the
Veteran’s Administration do not support the psychiatrist’s assertions.
On June 30, 2011, Dr. Smith completed a Mental Impairment Questionnaire (Listings)
form at the request of plaintiff’s counsel. Dr. Smith reported that plaintiff has been treated by the
Veteran’s Administration since 1990; diagnosed plaintiff as having a schizoaffective disorder;
rated plaintiff as having a GAF of 45 current and 50 past year; 6 and opined that plaintiff has
marked restriction of daily activities, extreme difficulties maintaining social functioning;
extreme difficulties maintaining concentration, persistence, or pace; and experienced repeated
episodes of decompensation in work or work-like settings (Tr. 850-53). 7
First, despite Dr. Smith’s claim of Veterans Administration treatment dating back to
1999, I find no evidence of any mental health treatment by the Veteran’s Administration or any
other mental health provider prior to July 28, 2010. When plaintiff began his current treatment at
the local Veteran’s Administration Medical Center in 2010, he reported no prior psychiatric
history and denied any inpatient stays (Tr. 518). As noted by Dr. Winfrey in her April 3, 2012
supplemental hearing testimony (Tr. 35), the 2008-2009 medical records from the Missouri
Department of Corrections contain repeated denials by plaintiff of mental health issues, reflect
no mental health treatment, and record no mental disorder diagnosis (Tr. 324-90).
Next, I note that Dr. Smith was first mentioned in the medical record on April 20, 2011
(Tr. 835-37). As Dr. Winfrey stated during her April 3, 2012 supplemental hearing testimony
(Tr. 37), Dr. Smith did not treat plaintiff during the period from August 2010 to October 2010,
6
A GAF of 41 to 50 means serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent
shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep
a job). Diagnostic and Statistical Manual of Mental Disorders 32 (Am. Psychiatric Ass’n. ed., 4th ed. 1994).
7
The form submitted by plaintiff’s counsel to Dr. Smith failed to include the qualifier that the episodes of
17
nor during the November 2010 hospitalizations when plaintiff abused alcohol and illicit drugs
and also described a long history of drug abuse with negative consequences. This is significant
because the ALJ questioned Dr. Smith’s failure to consider plaintiff’s poly-substance
dependence.
The ALJ discounted Dr. Smith’s opinion because the psychiatrist presented plaintiff as
barely functioning mentally. The ALJ remarked that neither the progress notes from the
Veteran’s Administration nor plaintiffs own statements support this level of impairment.
Furthermore, in plaintiff’s previous discussion about meeting the severity requirements of
Listing 12.04, he implicitly concedes that Dr. Smith’s ratings are unsupportable by arguing for
“marked” difficulties in maintaining social functioning and maintaining concentration,
persistence, or pace despite Dr. Smith’s rating of “extreme” in each of these part “B” criteria.
I find the excessive rating and the failure to consider the effects of the poly-substance
disorder also apply to Dr. Smith’s repeated rating of episodes of decompensation. As noted by
Dr. Winfrey in her April 2012 supplemental hearing testimony, the only episodes of
decompensation in the record occurred in August, September-October, and November 2010.
These episodes were all precipitated by the poly-substance abuse and occurred before Dr.
Smith’s treatment of plaintiff. Furthermore, plaintiff has not required inpatient hospitalization
since Dr. Smith began treating him in early 2011.
In summary, I find that there is substantial evidence supporting the ALJ’s decision as to
the weight to be given to Dr. Smith’s opinion.
Next, plaintiff argues that the ALJ failed to properly weight the opinion of a consulting
psychologist. In response, the Commissioner states that the ALJ considered the opinion of the
consulting psychologist who examined plaintiff at the ALJ’s request, but the judge found that her
decompensation must be “each of extended duration.”
18
opinion, too, downplayed plaintiff’s substance-abuse problem and accepted plaintiff’s
explanation that he abused drugs and alcohol to self-medicate his mental problems. Therefore,
the Commissioner argues, the ALJ properly discounted the consulting psychologist’s opinion.
On August 3, 2011, plaintiff underwent a consultative psychological examination by
Kathleen J. King, Ph.D. Plaintiff reported a history of mental problems dating back to his early
20’s, minimized his drug and alcohol use, and asserted that the drug and alcohol uses were
attempts to self-medicate. Plaintiff reported only two incarcerations to Dr. King. Dr. King
diagnosed a schizoaffective disorder, depressive type; major depressive disorder, recurring,
moderate; and poly-substance dependence, in nine-month reported remission. The psychologist
rated plaintiff as having no limitation in zero work-related areas; mild limitation in two
work-related areas; moderate limitation in three work-related areas; marked limitation in three
work-related areas; and extreme limitation in the remaining four work-related areas (Tr. 856-63).
When the ALJ considered Dr. King’s opinion, he found that the psychologist failed to
properly consider plaintiff’s poly-substance abuse and its effects on his RFC. The ALJ also
expressed concern about Dr. King’s reliance on plaintiff’s assertions that his poly-substance
abuse was a form of self-medicating his allegedly long-standing affective disorder. As pointed
out by the ALJ, the poly-substance abuse predates plaintiff’s alleged mental-impairment onset
date, i.e., plaintiff’s alcohol use beginning at age 15 and his cocaine use beginning at age 22,
with only 1 year of subsequent sobriety. As noted by Dr. Winfrey, the records from the Missouri
Department of Corrections contain no mention of auditory hallucinations and the like. While
plaintiff represented to Dr. King that he had been incarcerated two times, he earlier admitted to
being in and out of jail his whole life and described eras of incarceration that resulted from his
19
drug use - over 10 arrests and a total of 23 years in custody. 8
I find that substantial evidence supports the ALJ’s discounting Dr. King’s opinion.
Finally, plaintiff argues that the ALJ improperly relied on Dr. Winfrey’s opinions when
she is neither a treating physician nor an examining physician.
As noted previously, Dr. Winfrey testified at the April 3, 2012 supplemental hearing at
the request of the ALJ. The medical expert opined that plaintiff’s primary emotional problems
relate to his poly-substance abuse. Dr. Winfrey found marked functional limitations with the
poly-substance abuse but only mild to moderate functional limitations without the drug and
alcohol dependence (Tr. 29-39).
The ALJ relied on Dr. Winfrey to address the complex issues and the conflicting
assessments. Although a non-treating and non-examining doctor, the doctor is an expert in
disability evaluation. Dr. Winfrey had an opportunity to examine the whole record, including the
submissions made by plaintiff before the January and April 2012 hearings. The doctor explained
her opinions in detail at the April 2012 hearing. Plaintiff argues that Dr. Winfrey admitted that
Dr. Smith concluded the substance dependence was in remission, but Dr. Winfrey correctly
observed that Dr. Smith did not treat plaintiff at the time of the 2010 hospitalizations and that the
more recent progress notes detract from his opinion. Under the circumstances, I find that the ALJ
had ample reason to give controlling weight to Dr. Winfrey’s opinions.
In summary, the ALJ considered the medical opinions of record, and I find substantial
evidence supports his findings.
C.
RFC
Finally, plaintiff argues that the ALJ’s RFC evaluation erroneously characterizes his
8
I note that the treatment records available to Dr. King in August 2011 were limited because
plaintiff failed to submit many of the records until just prior to his aborted January 2012 hearing
20
remaining physical capacity as light, rather than sedentary. Furthermore, if the plaintiff’s RFC is
classified as sedentary, plaintiff argues Rule 201.12 of Table No. 1 of the Medical-Vocational
Guidelines directs a finding of disabled. In response, the Commissioner states that the ALJ
considered plaintiff’s physical complaints, discussed the results of the consultative physical
examination, and adequately accounted for plaintiff’s physical limitations in his RFC
assessment.
Although not a part of the direct evidence of record, there is medical evidence of prior
gunshot wounds to plaintiff’s knees. Imaging of the right knee shows residual bullet fragments
and osteoarthritis (Tr. 514, 646, 696). Imaging of the left knee shows osteoarthritis (Tr. 464,
697). Although plaintiff used a cane at his July 6, 2011 hearing (Tr.62-63), there are virtually no
records reflecting any treatment for the condition – there have been no recent hospitalizations
due to knee problems, no recent surgery for knee problems, plaintiff does not use a knee brace,
and plaintiff has not received any knee injections. Given his history of poly-substance abuse, the
VA doctors have treated plaintiff’s pain with non-narcotic medication.
Due to the limited treatment of the knee impairment, the ALJ arranged for plaintiff to
undergo a consultative physical examination by Joseph Noland, M.D., which was conducted on
August 11, 2011. Dr. Noland found minimal abnormal clinical signs of a knee condition. Dr.
Noland opined that plaintiff retains the ability to lift and carry 20 pounds continuously and 30
pounds frequently. Additionally, Dr. Noland found that plaintiff can stand and walk one hour at a
time for three hours total during an eight-hour workday, and plaintiff has no limitation on sitting
(Tr. 864-70).
The ALJ used Dr. Noland’s opinion as the basis for his RFC; however, the ALJ modified
the RFC, making some parts of the RFC more restrictive and other parts of the RFC less
(Tr. 878-984) or just prior to his April 2012 supplemental hearing (Tr. 985-1049).
21
restrictive. In view of the limited treatment and minimal clinical abnormalities during Dr.
Noland’s examination, I defer to the ALJ on his modifications.
The ALJ’s RFC is between the sedentary and light exertional levels. 9 The
Medical-Vocational Guidelines for sedentary work - when also considering plaintiff’s age,
education, and lack of work experience - direct a finding of disabled. Rule 201.12, Table No. 1.
However, the Medical-Vocational Guidelines for light work - when also considering plaintiff’s
age, education, and lack of work experience - direct a finding of not disabled. Rule 202.13, Table
No. 2.
If the exertional level falls between two rules and the two rules direct opposite
conclusions, a vocational expert is recommended to resolve the dilemma. SSR 83-12. As
recommended by SSR 83-12, the ALJ elicited testimony from a vocational expert who was able
to identify light jobs within the proffered hypothetical. Although the vocational expert admitted a
reduction in the number positions available, the additional restrictions do not prevent
performance of occupations identified by the DOT as light. Plaintiff does not challenge the
validity of the expert’s response to the hypothetical. Therefore, I defer to the ALJ as to whether
the remaining number of positions is significant.
I find substantial evidence supports the ALJ’s finding of jobs available in the national
economy that plaintiff can perform.
VII.
CONCLUSIONS
Based on all of the above, I find that the substantial evidence in the record as a whole
supports the ALJ’s decision finding plaintiff not disabled. Therefore, it is
ORDERED that plaintiff’s motion for summary judgment is denied. It is further
9
Dr. Noland’s suggested lifting/carry capacity for 30 pounds continuously and 20 pounds frequently, exceeds the
definition of light work, i.e., 20 pounds occasionally and 10 pounds frequently. It is between light and medium;
however, Ms. Duchene was unable to identify any medium work.
22
ORDERED that the decision of the Commissioner is affirmed.
/s/ Robert E. Larsen
ROBERT E. LARSEN
United States Magistrate Judge
March 14, 2014
Kansas City, Missouri
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