Zimmerman v. Colvin

Filing 13

ORDER AND OPINION AFFIRMING COMMISSIONER'S FINAL DECISION DENYING BENEFITS Signed on 11/21/14 by District Judge Ortrie D. Smith. (Matthes, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
RHONDA S. ZIMMERMAN,

)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Case No. 13-1247-CV-W-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 benefits. The Commissioner’s decision is
affirmed.
“[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 “more 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 ALJ found Plaintiff suffered from the severe impairments of degenerative
disc and joint disease in her lumbar region, degenerative joint disease in her knees, and
fibromyalgia. R. at 13. He concluded Plaintiff’s depression and anxiety provided no
more than minimal limitations on her ability to work, but he nonetheless considered

those conditions in ascertaining Plaintiff’s residual functional capacity (“RFC”). R. at 13,
18-20. The ALJ found Plaintiff retained the RFC to perform light work except she was
limited to standing or walking one hour at a time and four hours per day, sitting for six
hours in a day, could only occasionally engage in handling or fingering tasks, and could
not lift over her head with her left arm. R. at 16. This RFC precluded Plaintiff from
returning to her past work, but based on testimony from a vocational expert (“VE”) the
ALJ found Plaintiff could perform other work in the national economy as a cashier,
storage facility rental clerk, or folding machine operator. R. at 20-21.

A.

Plaintiff first argues the ALJ erred in not deferring to the opinions expressed by
Dr. Samuel Fadare, whom she describes as a treating physician with respect to her
anxiety and depression. To place matters in context: Plaintiff was treated for
depression while she was working. Dr. Thomas Scott – who was treating Plaintiff’s
fibromyalgia and osteoarthritis – noted Plaintiff was seeing a psychiatrist and was
prescribed Cymbalta. R. at 363-64. Plaintiff first saw Dr. Fadare in May 2012; during
the hearing, Plaintiff testified she switched to Dr. Fadare because she owed her prior
psychiatrist a bill that she could not pay, and the psychiatrist would not see her until it
was paid. R. at 42.
While the point is not clearly made, it appears Dr. Fadare’s predecessor was Dr.
Chitra Chinnaswamy. There is a Medication Record from Dr. Chinnaswamy indicating
she saw Plaintiff as early as November 2008. R. at 357. However, the earliest
treatment note from Dr. Chinnaswamy is from February 2010, and the notes extend to
October 2011. The notes primarily reflect Plaintiff had difficulty sleeping and was
worried about finances. The note from January 2011 indicates Cymbalta was not
decreasing Plaintiff’s anxiety, but the Medication Record indicates Dr. Chinnaswamy
prescribed different medication after this visit.
In April 2011 – one month before Plaintiff filed her disability claim – Dr.
Chinnaswammy wrote that Plaintiff’s “mood o.k. however has trouble sleeping through
the night. Can’t fall asleep/lacking in motivation. Still has fatigue . . . . takes several
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naps.” R. at 355. The remainder of this note is hard to read. The last treatment note
(from October 2011) says Plaintiff was “[s]till depressed; says she feels tired + fatigued
+ unmotivated all the time. Still struggling with pain in all of her joints and it limits her at
times. Still going through financial problems.” Dr. Chinnaswammy checked boxes
indicating Plaintiff’s thoughts were coherent and goal directed but that she suffered from
fatigue; Dr. Chinnaswammy did not check boxes indicating Plaintiff had difficulty
sleeping. She assessed Plaintiff’s GAF score at 50 and directed her to return in three
months. R. at 399.
Dr. Fadare’s notes from the initial visit reflect Plaintiff is depressed and suffers
from low self-esteem, but contains nothing else of note. He prescribed Plaintiff
medication. R. at 457-58. Dr. Fadare’s notes from the second visit in June 2012 reflect
only that Plaintiff was having difficulty sleeping; there are no other notes about Plaintiff’s
condition. R. at 456. Plaintiff’s third visit occurred in August 2012; she was still unable
to sleep. Dr. Fadare circled some items on the sheet from this visit; with two exceptions
the circles all indicate normal findings. The two exceptions are not clear: one is
indicating Plaintiff was either anxious or that she exhibited a normal mood; the other is
indicating Plaintiff exhibited either an appropriate affect or was incongruent. Both
circles seem to focus on the benign options. Plaintiff’s medication remained
unchanged. R. at 455.
Approximately four weeks later, Plaintiff asked Dr. Fadare to complete paperwork
in connection with this disability claim. R. at 454. Dr. Fadare completed a Mental
Residual Functional Capacity Assessment Form (“RFC Assessment”) indicating Plaintiff
suffered from extreme limitations in her ability to sustain a routine without special
supervision, make simple work-related decisions, complete a normal workday or
workweek without interruption, or work in coordination or proximity with others. The
RFC Assessment also indicates Plaintiff is markedly limited in a multitude of areas,
including her ability to understand, remember or follow simple or detailed instructions,
interact with the public, seek assistance when needed, respond appropriately to
workplace changes, set realistic goals, and behave in a socially appropriate manner.
The RFC Assessment concludes by suggesting Plaintiff would have to miss more than
three days of work per month due to her depression and anxiety. R. at 444-46.
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At the same time he completed the RFC Assessment, Dr. Fadare completed a
Mental Impairment Evaluation (“MIE”) designed to establish that Plaintiff’s condition
qualified as a listed impairment. The MIE indicates there is medical documentation
demonstrating Plaintiff suffers from continuous or intermittent anhedonia, appetite
disturbance with weight change, sleep disturbance, and decreased energy. The MIE
also reflects that Plaintiff has had repeated episodes of decompensation and a “[c]urrent
history of 1 or more years’ inability to function outside a highly supportive living
arrangement, with an indication of continued need for such an arrangement.” Finally,
the MIE indicates Plaintiff exhibits persistent anxiety, “[a] persistent irrational fear of a
specific object, activity or situation which results in a compelling desire to avoid the
dreaded object, activity, or situation” and that she suffers from recurrent panic attacks.
R. at 447-50. Both the RFC Assessment and MIE consist of boxes or other items that
are checked or circled; there is no narrative explanation provided, and there are no
supporting medical records or other documents.
Generally speaking, a treating physician=s opinion is entitled to deference. This
general rule is not ironclad; a treating physician=s opinion may be disregarded if it is
unsupported by clinical or other data or is contrary to the weight of the remaining
evidence in the record. E.g., Anderson v. Astrue, 696 F.3d 790, 793-094 (8th Cir. 2012);
Halverson v. Astrue, 600 F.3d 922, 929-30 (8th Cir. 2010). Plaintiff argues the ALJ
erred in discounting Dr. Fadare’s RFC Assessment and MIE, contending the ALJ’s sole
reason – that Dr. Fadare saw Plaintiff on only four occasions – is not a legally
acceptable reason. Given that the treating physician rule is premised in part on the
treating doctor’s greater familiarity with the patient, e.g., Thomas v. Sullivan, 928 F.2d
255, 259 n.3 (8th Cir. 1991), it seems reasonable for the ALJ to note the sparse nature
of that relationship. Regardless, while it is true that the ALJ noted Dr. Fadare saw
Plaintiff on only four occasions, this was not the sole reason the ALJ discounted his
opinions. This observation was made to put the evidence supplied by Dr. Fadare in
context and was part of the ALJ’s larger observation that Dr. Fadare’s “opinion is
inconsistent with the medical evidence of record.” R. at 19. Indeed, the RFC
Assessment and MIE are inconsistent with the rather minimal evidence supplied by Dr.

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Fadare: there are no treatment notes or other records from him that support the extreme
limitations he documented in the RFC Assessment and MIE.
There is also no evidence from any of Plaintiff’s other treating doctors – including
Dr. LaSalle, Dr. Paul, Dr. Scott, and Dr. Chinnaswamy – that would support Dr.
Fadare’s diagnosis. The ALJ was entitled to conclude that conditions reported in the
RFC Assessment and MIE were of the type that would have been noted by all of
Plaintiff’s doctors, including particularly Dr. Chinnaswamy. The fact they were not
justifies not according deference to the Dr. Fadare’s RFC Assessment and MIE. The
fact that they were not mentioned in Dr. Fadare’s contemporaneous treatment notes
also justified the ALJ’s decision.

B.

Plaintiff next attacks the ALJ’s RFC determination. First, she contends it is
inconsistent because it begins by stating Plaintiff can perform light work and then
imposes restrictions that are contrary to light work. The Court discerns no error. The
RFC clearly says Plaintiff can perform the full range of light work with certain
enumerated exceptions. In other words, the ALJ acknowledged Plaintiff could not
perform the full range of light work and thus required testimony from a VE (which was
elicited). This approach is common in disability cases and there is no inconsistency.
Plaintiff also argues there is no “specific bridge between the RFC and the
medical evidence which is required by Social Security Ruling 96-8p.” Plaintiff’s Brief at
22. The Court has examined Social Security Ruling 96-8p but cannot identify the
provision that was allegedly violated. As best as the Court can ascertain, Plaintiff’s
argument is that the RFC is not supported by the evidence. Specifically, Plaintiff
contends the ALJ should have included additional limitations based on pain in her upper
extremities, carpal tunnel syndrome, degenerative joint disease in her knees, or
depression and anxiety. The ALJ found Plaintiff could only occasionally engage in
handling or fingering tasks and could not lift over her head with her left arm; Plaintiff
does not identify any additional limitations attributed to her upper extremities and carpal
tunnel syndrome that the ALJ erred by not including. The ALJ found Plaintiff could not
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stand for more than one hour at a time or four hours per day; again, Plaintiff does not
identify any evidence suggesting the ALJ erred by not including greater limitations
attributable to her knees. Finally, Plaintiff’s arguments regarding depression and
anxiety depend on the weight to be accorded Dr. Fadare’s MIE and RFC Assessment;
having held the ALJ was justified in not according them weight (and in light of the
holding, below, that the ALJ did not err in finding Plaintiff to be only partially credible),
the Court holds there is no error in this regard.

C.

Plaintiff’s final argument is that the ALJ erred in discounting her credibility.
Plaintiff concedes the ALJ found her only partially credible because her allegations were
inconsistent with the medical evidence in the Record, and there is no denying this is a
proper basis for discounting a claimant’s credibility. Plaintiff contends the ALJ erred in
failing to “elaborate on what evidence persuaded him she was not credible,” Plaintiff’s
Brief at 26, but the Court believes it is fairly evident from the ALJ’s written opinion. In
fact, Plaintiff’s summary is incomplete, as it does not account for the entirety of the ALJ
discussion (which extended for more than two pages). R. at 17-19.
At best, Plaintiff contends the ALJ should have weighed the facts differently by
attaching more weight to some things and less weight to others. The Court cannot
substitute its judgment of the facts for the ALJ’s. E.g., Baldwin v. Barnhart, 349 F.3d
549, 555 (8th Cir. 2003). All the Court can do is confirm that the law permits
consideration of the factors relied upon, and there is no serious argument to the
contrary presented. There is substantial evidence in the Record as a whole to support
the ALJ’s decision.
D.

The Commissioner’s final decision is affirmed.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: November 21, 2014
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