Lattimer v. Colvin

Filing 17

ORDER Affirming ALJ's Decision. Signed on 7/28/14 by Chief District Judge Greg Kays. (Francis, Alexandra)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
JENA L. LATTIMER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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No. 13-00845-CV-W-DGK-SSA

ORDER AFFIRMING ALJ’S DECISION
Plaintiff Jena L. Lattimer seeks judicial review of the Commissioner of Social Security’s
denial of her application for supplemental security income (“SSI”) under Title XVI of the Act,
42 U.S.C. §§ 1381–1383f. The Administrative Law Judge (“ALJ”) found Plaintiff had multiple
severe impairments, including depressive disorder, anxiety disorder, and a history of
polysubstance abuse, but she retained the residual functional capacity (“RFC”) to perform past
relevant work as a cleanup worker.
Because substantial evidence supports the ALJ’s opinion, the Commissioner’s decision
denying benefits is AFFIRMED.
Factual and Procedural Background
A summary of the entire record is presented in the parties’ briefs and is repeated here
only to the extent necessary.
Plaintiff filed her SSI application on August 9, 2009, alleging a disability onset date of
January 1, 2008. After the Commissioner denied her application, Plaintiff requested an ALJ
hearing. On June 24, 2011, the ALJ found that the Plaintiff was not disabled. On July 26, 2012,
the Social Security Administration Appeals Council denied Plaintiff’s request for review, leaving

the ALJ’s decision as the Commissioner’s final decision.

Plaintiff has exhausted all

administrative remedies and judicial review is now appropriate under 42 U.S.C. 1383(c).
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
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.1
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“The five-step sequence involves determining whether (1) a claimant’s work activity, if any, amounts to substantial
gainful activity; (2) his impairments, alone or combined, are medically severe; (3) his severe impairments meet or
medically equal a listed impairment; (4) his residual functional capacity precludes his past relevant work; and (5) his
residual functional capacity permits an adjustment to any other work. The evaluation process ends if a
determination of disabled or not disabled can be made at any step.” Kemp ex rel. Kemp v. Colvin, 743 F.3d 630, 632
n.1 (8th Cir. 2014); see 20 C.F.R. § 416.920(a)–(g). 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

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Plaintiff argues the ALJ erred at Steps Three and Four. With respect to Step Three,
Plaintiff contends that the ALJ erred in finding that she failed to meet the intellectual disability
listing. As for Step Four, Plaintiff faults the ALJ for discounting the opinion of her treating
psychiatrist Dr. James True, M.D. (“Dr. True”). Both arguments lack merit.
A. Substantial evidence supports the ALJ’s Step Three analysis.
Step Three requires an ALJ to analyze whether a claimant’s severe impairments meet a
disorder listed in 20 C.F.R. pt. 404, subpt. p, app. 1. 20 C.F.R. § 416.920(a)(4)(iii). If the ALJ
answers in the affirmative, the claimant is deemed disabled and the sequential process ends. See
id. Plaintiff contends that the ALJ should have determined that she met Listing 12.05C. This
listing requires Plaintiff to demonstrate: “(1) a valid verbal, performance, or full scale IQ of 60
through 70; (2) an onset of the impairment before age 22; and (3) a physical or other mental
impairment imposing an additional and significant work-related limitation in functioning.”
Maresh v. Barnhart, 438 F.3d 897, 899 (8th Cir. 2006).
Here, the ALJ found Plaintiff failed to meet Listing 12.05C because “[t]he evidence does
not establish that the claimant has objective medical findings that are commensurate with the
criteria described in 12.05C, including no evidence of deficits in adaptive functioning initially
manifested during the developmental period.”

R. at 16.

Later in her opinion, the ALJ

expounded upon this finding by addressing the only intelligence quotient (“IQ”) scores located in
the record. Based upon a one-time consultative examination, Plaintiff’s retained psychologist
Dr. Franklin Boraks, Ph.D. (“Dr. Boraks”) assessed Plaintiff with a verbal IQ score of 64, a
performance IQ score of 62, and a full scale IQ score of 60. The ALJ found these scores invalid

to show that there are other jobs in the economy that the claimant can perform. King v. Astrue, 564 F.3d 978, 979
n.2 (8th Cir. 2009).

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because they conflicted with other record evidence suggesting Plaintiff enjoyed a higher
functioning level. R. at 20.
The parties agree that Plaintiff satisfied the third requirement of Listing 12.05C. They
disagree, however, on whether Plaintiff met the first two requirements—i.e., whether she
demonstrated a valid IQ between 60 and 70, and whether her alleged mental retardation
manifested itself before age 22. The ALJ found these two requirements lacking, and the Court
finds substantial evidence supports this determination.
The ALJ properly determined that the IQ scores rendered by Dr. Borak were invalid.
“An ALJ may disregard a claimant’s IQ score when it is derived from a one-time examination by
a non-treating psychologist, particularly if the score is inconsistent with the claimant’s daily
activities and behavior.” Muncy v. Apfel, 247 F.3d 728, 733 (8th Cir. 2001). Such is the case
here. Dr. Borak based the scores solely upon his one-time evaluation of Plaintiff. R. at 191.
And Dr. Borak’s assessment arguably conflicts with Plaintiff’s daily activities and behavior. For
instance, Plaintiff reads and writes (albeit not well), uses public transportation, attends church,
and shops. R. at 34, 39, 49, 143, 146, 155, 158, 196. More importantly, besides Dr. Borak, no
other treating, examining, or reviewing psychologist or psychiatrist found Plaintiff suffered from
such a low IQ. R. at 196, 201, 293. In fact, Plaintiff’s treating psychiatrist Dr. True even
indicated that Plaintiff did not exhibit “a low I.Q. or reduced intellectual functioning.” R. at 293.
Given the inconsistency between this record evidence and Dr. Borak’s assessed scores, the ALJ
did not err in disregarding Plaintiff’s low IQ scores.
The record evidence also supports the ALJ’s finding that Plaintiff’s alleged mental
retardation did not manifest itself prior to age 22. Once the low IQ scores are set aside, there
exists little record evidence that Plaintiff exhibited any deficits in adaptive functioning, much

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less deficits prior to age 22. Plaintiff points to evidence that she struggled with reading and
writing and that she quit school in either the 7th or 8th grade. Although this suggests she
struggled in school, it does not demonstrate her difficulties arose from her alleged mental
retardation. On the contrary, the fact that she attended regular classes during elementary school
undercuts her allegations of mental retardation.

See R. at 43 (Plaintiff testifying that she

attended regular classes, even though she believed the school should have placed her in special
education courses).

And other evidence—Plaintiff obtaining a driver’s license, living

independently, and attending parties and casinos, R. at 36, 39, 143—suggest she had little
difficulties with adaptive functioning. See Miles v. Barnhart, 374 F.3d 694, 699 (8th Cir. 2004)
(“Miles attended regular classes in high school, received grades of B, completed vocational
training program, passed a driver’s license examination, had driven a car, had lived
independently, and had never been terminated from a job for lack of mental ability, but had been
terminated because of lack of transportation or lack of work.”). Thus, Plaintiff failed to satisfy
the second requirement.
Because Plaintiff failed to meet the first two requirements of Listing 12.05C, the ALJ did
not err at Step Three.
B. The ALJ did not err in discounting Dr. True’s opinion.
Plaintiff next argues that the ALJ erred at Step Four in rejecting the opinion of her
treating psychiatrist Dr. True. According to Plaintiff, the ALJ should have accorded the opinion
significant, if not controlling, weight. The Court disagrees.
Dr. True treated Plaintiff for her psychological ailments, including depressive disorder
and anxiety disorder. On May 12, 2010, Dr. True completed a mental residual functional
capacity form which indicated Plaintiff suffered from slight limitations in activities of daily

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living, moderate difficulties in maintaining social functioning, deficiencies in concentration,
persistence, and pace, and repeated episodes of work-related decompensation. R. at 295. Dr.
True also opined that Plaintiff exhibited a Global Assessment of Functioning (“GAF”) score of
40. R. at 292.
A treating physician’s opinion is typically entitled to controlling weight if it is well
supported by, and not inconsistent with, other substantial evidence in the record. Myers v.
Colvin, 721 F.3d 521, 524 (8th Cir. 2013) (citing 20 C.F.R § 404.1527(c)(2)). It, 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). A treating
physician’s opinion is not afforded controlling weight when it is internally inconsistent, Myers,
721 F.3d at 525, or when it is inconsistent with, or unsupported by, the physician’s own
treatment notes. Davidson v. Astrue, 578 F.3d 838, 843 (8th Cir. 2009). Although an ALJ may
discount a treating physician’s opinion, the ALJ must provide “good reasons for doing so.”
Brown v. Astrue, 611 F.3d 941, 951 (8th Cir. 2010).
Here, the ALJ provided several good reasons for discounting Dr. True’s opinion and
substantial evidence supports those reasons. First, Dr. True’s opinion does not appear to be
based on any objective medical evidence. For the most part, his opinion consists of nothing
more than several pages of checked boxes with no citation to treatment notes and minimal
narrative discussion. R. at 292-96; see Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010)
(affirming an ALJ’s rejection of an opinion because it was conclusory and in a checklist format).
For instance, in the section prompting Dr. True to articulate his clinical findings supporting his
decision, it merely states, “Patient with suicidal thoughts, crying, feels things can’t go right.” R.
at 293. Putting aside the fact that this conclusory discussion does not explain how these findings

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resulted in the assessed limitations, see Wildman, 696 F.3d at 964, it also demonstrates that Dr.
True’s opinion is based largely2 on Plaintiff’s subjective complaints, not objective medical
evidence.

Such reliance throws his opinion into question given Plaintiff’s questionable

credibility and tendency to exaggerate symptoms. See R. at 17-19 (ALJ noting inconsistencies
between Plaintiff’s subjective complaints and the record evidence); R. at 196 (examining
psychologist Dr. Alan Israel noting that Plaintiff tended to exaggerate her symptoms);
Vandenboom v. Barnhart, 421 F.3d 745, 749 (8th Cir. 2005) (ALJ may discount an opinion if it
relies upon a plaintiff’s subjective complaints).

The lack of objective medical evidence

underlying Dr. True’s opinion supports the ALJ’s decision to discount it.
Second, Dr. True’s opinion is inconsistent with his treatment notes. Although Dr. True
opined that Plaintiff exhibited recurrent panic attacks and social withdrawal, he never
documented any panic attacks or problems with socializing in his treatment notes. R. at 320,
336, 337, 339, 342, 344, 355-56, 366. As for work-related limitations, Dr. True opined that
Plaintiff quite often exhibited deficiencies in concentration, persistence, and pace, yet his notes
reveal that during her most recent visits she was pleasant and she demonstrated goal-directed
speech, fair insight, and clear sensorium.3 R. at 336, 355-56, 366. And despite Dr. True’s notes
containing minimal objective findings of significant mental symptoms, he continually assessed a
GAF score of 40, which indicates “an impairment in reality testing or communication… or [a]
major impairment in several areas, such as work or school, family relations, judgment, thinking,
or mood.” Pates-Fires v. Astrue, 564 F.3d 935, 937 n.1 (8th Cir. 2009) (citing Am. Psychiatric
2

The only objective corroboration of these findings was Plaintiff’s attempted suicide in August 2009. R. at 249251. While this unfortunate incident demonstrates Plaintiff suffered from a severe mental impairment, it does not
prove that this mental impairment imposed disabling functional limitations. And as the ALJ noted, during a visit
with Dr. True only a month after the incident, Plaintiff was “bright eyed, pleasant, goal directed” and only “a little
bit depressed.” R. at 336. Thus, it appears Plaintiff’s condition improved significantly.
3

In the psychology field, sensorium generally refers to consciousness and is “sometimes used as a generic term for
intellectual and cognitive functions.” PDR Medical Dictionary 1598 (1st ed. 1995).

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Ass’n Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. 1994)). If Plaintiff
were as limited as the GAF score suggests, Dr. True’s notes would have contained more
significant mental findings. Cumulatively, these conflicts provided a sound basis for the ALJ to
discount Dr. True’s opinion.
Finally, and most significantly, Dr. True’s opinion conflicted with other, substantial
evidence. First, contrary to Dr. True’s conclusion that Plaintiff’s severe anxiety led to significant
deficits in social functioning, she had a boyfriend, attended parties, frequented casinos, and rode
public buses. R. at 32, 34, 39, 49, 143, 146, 158, 362. Second, his opinion directly conflicted
with the opinions of examining psychologist Dr. Alan Israel, Ph.D. (“Dr. Israel”) and reviewing
psychologist Dr. Keith Allen, Ph.D. (“Dr. Allen”). Neither Dr. Israel nor Dr. Allen found
Plaintiff as limited as Dr. True’s opinion suggests. R. at 195-97, 198-212. Given this conflict
and the fact that Dr. Israel’s and Dr. Allen’s opinions included a more thorough narrative
assessment which enjoyed more support in the record, the ALJ properly credited their opinions
over Dr. True’s. See Prosch v. Apfel, 201 F.3d 1010, 1014 (8th Cir. 2000) (“[A]n ALJ may
credit other medical evaluations over that of the treating physician when such other assessments
‘are supported by better or more thorough medical evidence.’”). Thus, the ALJ did not err in
discounting Dr. True’s opinion.
Conclusion
Because substantial evidence supports the ALJ’s opinion, the Commissioner’s decision
denying benefits is AFFIRMED.
IT IS SO ORDERED.
Date: July 28, 2014

/s/ Greg Kays
GREG KAYS, CHIEF JUDGE
UNITED STATES DISTRICT COURT

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