Starnes v. Colvin
Filing
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ORDER AND OPINION AFFIRMING COMMISSIONER'S FINAL DECISION DENYING BENEFITS. Signed on 11/30/15 by District Judge Ortrie D. Smith. (Matthes, Renea)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
LESHA LANETT STARNES,
)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)
Case No. 15-0110-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.
I.
INTRODUCTION
Plaintiff was born in 1960, completed high school, and has past work experience
as a data entry clerk. The ALJ determined Plaintiff’s severe impairments include
“degenerative joint disease, vertigo, osteoarthritis, posttraumatic stress disorder,
adjustment disorder with mixed anxiety and depressed mood, and lumbar bulging discs
with stenosis of the neural foramina.” R. at 14. The ALJ found Plaintiff has the residual
functional capacity (“RFC”) to:
Perform light work…involving lifting and/or carrying 10 pounds frequently, 20
pounds occasionally, standing and/or walking for up to six hours in an eight-hour
workday, and sitting up to six hours in an eight-hour workday. She must be able
to alternate sitting and standing at least every 30 minutes. She can occasionally
climb ramps or stairs but never climb ladders, ropes or scaffolds, or balance.
She can occasionally stoop, kneel, crouch and crawl. However, she must avoid
operational control of moving machinery, unprotected heights, hazardous
machinery, extreme cold, wetness and excessive vibration. She can handle and
finger no more than frequently. She is limited to simple, routine and repetitive
tasks, no interaction with the public, and she can work around co-workers
throughout the day but have only occasional interaction with co-workers.
R. at 17. Based on the testimony of a vocational expert, the ALJ determined Plaintiff
could perform work as a price marker, folding machine operator, and a sub assembler.
R. at 25.
II.
LEGAL STANDARD
“[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 when 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).
III.
DISCUSSION
A.
Plaintiff asserts the ALJ did not properly consider the medical opinion evidence of
Record. Generally speaking, a treating source’s opinion is entitled to deference. This
general rule is not ironclad; a treating source’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, 793-94 (8th Cir. 2012);
Halverson v. Astrue, 600 F.3d 922, 929-30 (8th Cir. 2010); Pena v. Chater, 76 F.3d 906,
908 (8th Cir. 1996). The ALJ may discount a treating physician’s opinion if the ALJ
provides good reasons for doing so. Davidson v. Astrue, 501 F.3d 987, 990 (8th Cir.
2007).
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1. Dr. Rebecca Turner
Dr. Rebecca Turner (“Turner”) completed a Medical Source Statement (“MSS”)
addressing Plaintiff’s physical functioning. The ALJ discounted Turner’s opinion for
several reasons. First, the ALJ found Turner’s described physical limitations
inconsistent with Plaintiff’s statement that the main reason she cannot work is due to
stress and a lack of focus. R. at 23. Plaintiff argues that this statement does not
preclude her from suffering from physical problems which are, in and of themselves,
disabling. While the statement does not necessarily mean that Plaintiff does not have
disabling physical conditions, it does undermine Plaintiff’s assertions regarding the
severity of her physical impairments. Moreover, this statement was only one of many
reasons the ALJ discounted Turner’s opinion.
Next, the ALJ discounted Turner’s opinion because it was a checklist-style form
without any rationale for the conclusions. R. at 23. Plaintiff argues that these types of
forms are routinely used and are considered proper evidence. Plaintiff’s assertions may
be true; nonetheless, an ALJ may discount an opinion when it is in checklist form and
“cites no medical evidence, and provides little to no elaboration.” Anderson v. Astrue,
696 F.3d 790, 794 (8th Cir. 2012).
The ALJ also found Plaintiff’s daily activities were inconsistent with the limitations
described in Turner’s opinion. For example, Plaintiff prepares meals with several
courses each day, she cleans her house each day for one to two hours, does the
laundry one to three times a week for two to four hours, and irons once a week for one
to two hours. R. at 187. Plaintiff also cares for her daughter who has Down’s
syndrome. This care includes bathing, feeding, clothing, and taking her to doctor’s
appointments. R. at 190. Plaintiff runs errands two to three times a week, and often
drives herself. R. at 188. Plaintiff maintains that these activities do not show that she
is able to participate in substantial gainful activity. However, Plaintiff’s daily activities
are wholly inconsistent with the limitations Turner cites in her opinion; and thus, the ALJ
properly discounted Turner’s opinion on this basis. Davidson v. Astrue, 501 F.3d 987,
990 (8th Cir. 2007); Hacker v. Barnhart, 459 F.3d 934, 938 (8th Cir. 2006).
Further, the ALJ discounted Turner’s opinion because it was inconsistent with her
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own treatment notes. While Turner observes Plaintiff has joint stiffness in her hands,
dizziness, and moderate lower back pain; Turner also repeatedly notes that Plaintiff
experiences no weakness, no joint pain, and no muscle pain and that Plaintiff has
normal range of motion, normal strength, and a steady gait. R. at 237, 239, 241, 244,
246, 249, 252, 255, 258, 261, 264, 267, 297, 300, 316, 319, 321, 324, 327, 329, 339,
341, 342, 373, 375, 377, 378. Plaintiff argues that Turner’s “normal” findings in her
treatment notes do not necessarily undermine her opinion, because Turner is making
different determinations during a doctor’s visit than she is making when she is filling out
her MSS form. Plaintiff cites no legal authority for this position. Further, Plaintiff’s
argument is actually an admission that Turner’s treatment notes do not support the
limitations described in her opinion. Additionally, Plaintiff points to an MRI Turner
ordered to prove the medical record supports Turner’s opinion. However, the MRI
findings almost always describe Plaintiff’s back issues as minor, minimal, or moderate.
R. at 370. Because Turner’s treatment notes were inconsistent with her opinion, the
ALJ properly discounted her opinion. Hacker, 459 F.3d at 937; Ellis v. Barnhart, 392
F.3d 988, 995 (8th Cir. 2005).
Finally, Plaintiff argues that because the ALJ found that there was a conflict in
the evidence and Turner’s opinion, the ALJ should have recontacted Turner for
clarification. The Court finds this argument unpersuasive. The ALJ does not “have to
seek additional clarifying statements from a treating physician unless a crucial issue is
undeveloped.” Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004). Rather, “the ALJ
is required to order medical examinations and tests only if the medical records
presented to him do not give sufficient medical evidence to determine whether the
claimant is disabled.” Martise v. Astrue, 641 F.3d 909, 926-27 (8th Cir. 2011) (internal
citations and quotations omitted). Here, the ALJ was not required to recontact Turner
because “there is no indication that the ALJ felt unable to make the assessment [s]he
did and [her] conclusion is supported by substantial evidence.” Tellez v. Barnhart, 403
F.3d 953, 957 (8th Cir. 2005). The Record contained ample medical records and other
evidence for the ALJ to determine Plaintiff’s functional limitations.
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2. Dr. Shahbaz Kahn
Dr. Shahbaz Kahn (“Kahn”) completed an MSS addressing Plaintiff’s mental
functioning. The ALJ discounted Kahn’s opinion for a variety of reasons. First, the ALJ
discounted Kahn’s opinion because it was in checklist form and included only
conclusions with no explanation. R. at 19. Again, Plaintiff maintains that checklist
forms are frequently used and are deemed proper evidence. While Plaintiff may be
correct in this regard, the ALJ is permitted to discount an opinion when it is in checklist
form and “cites no medical evidence, and provides little to no elaboration.” Anderson,
696 F.3d at 794. The Court’s review of the MSS reveals Kahn offered no explanation
for the described limitations. R. at 333-334.
The ALJ also discounted Kahn’s opinion because it was inconsistent with
Plaintiff’s daily activities. Kahn asserts Plaintiff has marked limitations in her ability to
interact appropriately with the public, with supervisors, and with co-workers. R. at 334.
Kahn claims Plaintiff has marked limitations in her ability to complete a normal work-day
and work-week without interruptions from psychologically-based symptoms. Id. Finally,
Kahn states Plaintiff has moderate to marked limitations in her ability to respond
appropriately to usual work situations and to changes in a routine work setting. Id.
Kahn’s described limitations are belied by Plaintiff’s engagement in a variety of daily
activities as previously discussed in Section III.A.1. While Plaintiff argues her activities
do not demonstrate her ability to participate in substantial gainful activity, the wide
variety of daily activities in which Plaintiff engages is inconsistent with the marked
limitations Kahn assigned to her. As such, the ALJ properly discounted Kahn’s opinion.
Davidson, 501 F.3d at 990; Hacker, 459 F.3d at 938.
Next, the ALJ discounted Kahn’s opinion because it was inconsistent with
Plaintiff’s GAF score of 58. The Court acknowledges Plaintiff’s argument that a GAF
score is only a “snapshot” of her mental functioning and that there is evidence of lower
GAF scores in the Record. Nevertheless, a GAF score of 58 is inconsistent with the
limitations Kahn described, and this was only one factor upon which the ALJ rested her
opinion.
The ALJ also determined Kahn’s opinion and treatment notes were based on
Plaintiff’s subjective complaints, which the ALJ did not find credible. Plaintiff argues the
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ALJ does not explain or cite evidence for this assertion. The Court finds this argument
unavailing. In her discussion of Kahn’s opinion, the ALJ observed Kahn had assigned
various GAF scores to Plaintiff. R. at 20. The ALJ cited Exhibit 14F twice in support of
this observation. Exhibit 14F contains Kahn’s treatment notes, and the various GAF
scores Kahn assigned Plaintiff are found in Kahn’s treatment notes. Then, the ALJ
determined that Kahn’s assigned GAF scores were based on Plaintiff’s subjective
complaints. While the ALJ does not cite to Exhibit 14F a third time, it is clear the ALJ is
asserting that the GAF scores in Kahn’s treatment notes (found in Exhibit 14F) are
based on Plaintiff’s subjective complaints. A review of Kahn’s treatment notes reveal
that they are, in fact, largely based on Plaintiff’s subjective complaints. R. at 346-365.
An ALJ may properly discount a medical opinion when it is based on Plaintiff’s
subjective complaints. McDade v. Astrue, 720 F.3d 994, 999 (8th Cir. 2013).
Finally, Plaintiff argues that if the ALJ determined there was an ambiguity
between Kahn’s treatment notes and Kahn’s opinion, the ALJ had a duty to recontact
Kahn for clarification. Again, “an ALJ is permitted to issue a decision without obtaining
additional medical evidence so long as other evidence in the record provides a sufficient
basis for the ALJ’s opinion.” Naber v. Shalala, 22 F.3d 186, 189 (8th Cir. 1994). Here,
the ALJ did not need to recontact Kahn because the Record contained sufficient
medical records and other evidence to determine Plaintiff’s functional limitations.
3. Tracy Dunlap
Tracy Dunlap (“Dunlap”), a Licensed Clinical Social Worker and Plaintiff’s
therapist, completed an MSS addressing Plaintiff’s mental functioning. Plaintiff argues
the ALJ improperly discounted Dunlap’s opinion for several reasons. First, Plaintiff
maintains the ALJ discounted Dunlap’s opinion because it was in a checklist form, and it
was inappropriate for the ALJ to discount Dunlap’s opinion for this reason. However,
the ALJ did not discuss whether Dunlap’s opinion was in checklist form, nor did the ALJ
discount Dunlap’s opinion on this basis. R. at 20. Plaintiff also argues that despite the
ALJ’s assertion otherwise, Plaintiff’s daily activities did not undermine the weight of
Dunlap’s opinion. Again, the ALJ did not discount Dunlap’s opinion due to Plaintiff’s
daily activities.
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The ALJ did discount Dunlap’s opinion for a variety of other reasons. The ALJ
discounted Dunlap’s opinion because she opined on an issue reserved for the
Commissioner. Specifically, Dunlap asserted Plaintiff would be unable to maintain a
job. The ALJ is permitted to discount Dunlap’s opinion for this reason. McDade v.
Astrue, 720 F.3d 994, 1000-1001 (8th Cir. 2013).
The ALJ also determined Dunlap’s opinion was internally inconsistent, in that
Dunlap assigned Plaintiff a GAF score of 58 but also claimed Plaintiff acted as though
she suffered from a traumatic brain injury. Plaintiff argues, again, that a GAF score is
only a snapshot of Plaintiff’s mental functioning. Nonetheless, a score of 58 is
inconsistent with the assertion that Plaintiff behaves as if she has a traumatic brain
injury. Dunlap’s own inconsistency undermines her opinion and is a proper basis for the
ALJ to discount her opinion.
Further, because Dunlap was not an acceptable medical source, the ALJ gave it
less weight. Plaintiff argues that, by itself, this is not a sufficient reason to discount
Dunlap’s opinion, and that alternative providers such as Dunlap provide valuable
information regarding functional limitations. First, the ALJ did not discount Dunlap’s
opinion merely because Dunlap was not an acceptable medical source. Second, while
alternative providers may provide helpful information about a claimant’s functional
limitations, the ALJ is permitted to afford Dunlap’s opinion less weight because she is
not acceptable medical source. Tindell v. Barnhart, 444 F.3d 1002, 1005 (8th Cir.
2006).
Next, the ALJ determined Dunlap’s opinion was inconsistent with the medical
records. Plaintiff notes that the ALJ did not cite any evidence for this assertion. The
Court acknowledges that this is the case, but the Court also finds that this assertion was
only of many reasons the ALJ discounted Dunlap’s opinion.
Finally, Plaintiff argues that if the ALJ determined there were discrepancies
between Dunlap’s treatment records and opinions, then the ALJ should have
recontacted Dunlap to resolve these inconsistencies. As previously stated, “an ALJ is
permitted to issue a decision without obtaining additional medical evidence so long as
other evidence in the record provides a sufficient basis for the ALJ’s opinion.” Naber v.
Shalala, 22 F.3d 186, 189 (8th Cir. 1994). Here, the ALJ did not need to recontact
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Dunlap because the Record contained sufficient medical records and other evidence to
determine Plaintiff’s functional limitations.
4.
Plaintiff argues that the opinion of Dr. Sara Ackerman (“Ackerman”), a
consultative examiner, should not be given more weight than the opinion of Turner, one
of Plaintiff’s treating physicians. Similarly, Plaintiff argues that the opinions of Dr. Alan
Israel (“Israel”), a consultative examiner, and of Dr. Martin Isenberg (“Isenberg”), a nonexamining consultant, should not be given more weight than the opinions of Kahn and
Dunlap, who are Plaintiff’s treating mental health providers. The Court finds this
argument unpersuasive. An ALJ may substitute the opinions of non-treating physicians
in several instances, including where a treating physician “renders inconsistent opinions
that undermine the credibility of such opinions.” Prosch v. Apfel, 201 F.3d 1010, 1013
(8th Cir. 2000); see also Goetz v. Barnhart, No. 05-2267, 2006 WL 1512176, 182 Fed.
Appx. 625, 626, at *2 (8th Cir. June 2, 2006). As discussed above, the ALJ found
numerous problems with the opinions of Plaintiff’s treating health providers, including
inconsistencies in each of their opinions.
Moreover, “in evaluating a claimant’s RFC, an ALJ is not limited to considering
medical evidence exclusively.” Cox v. Astrue, 495 F.3d 614, 619 (8th Cir. 2007). The
ALJ must base the RFC on “all relevant evidence, including the medical records,
observations of treating physicians and others, and an individual’s own description of
his limitations.” McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000); see also Turpin v.
Colvin, 750 F.3d 989, 994 (8th Cir. 2014). Further, the ALJ is not required to rely on
opinion evidence in determining Plaintiff’s RFC. Martise v. Astrue, 641 F.3d 909, 927
(8th Cir. 2011). Here, the ALJ relied on Plaintiff’s daily activities and on other medical
evidence. This evidence was sufficient to support the ALJ’s determination regarding
Plaintiff’s functional limitations.
5.
Plaintiff contends that the ALJ also erred in assigning Isenberg’s opinion weight
because his opinion was without the benefit of subsequently created medical records.
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While Isenberg did not have the benefit of subsequently created medical records, this
does not undermine Isenberg’s opinion regarding Plaintiff’s condition on the day the
opinion was rendered. Plaintiff does not provide, and the Court is not aware of, any
legal authority which holds a consultant’s medical opinion must be based on
subsequently created medical records, or that the consultant’s opinion necessarily must
be discounted because it is not based on those records. Thus, the Court discerns no
error on this point. Furthermore, the additional records are not inconsistent with
Isenberg’s findings. Thus, the Court cannot say the ALJ’s decision falls outside the
“available zone of choice.” Casey v. Astrue, 503 F.3d 687, 691 (8th Cir. 2007) (internal
citations and quotations omitted).
B. New Medical Evidence
Plaintiff notes she submitted to the Appeals Council new medical evidence which
was not part of the Record when the ALJ rendered her decision. On December 15,
2014, the Appeals Council considered this new evidence in affirming the ALJ’s decision.
R. at 2, 5.
“If…the Appeals Council considers the new evidence but declines to review the
case, we review the ALJ’s decision and determine whether there is substantial evidence
in the administrative record, which now includes the new evidence, to support the ALJ’s
decision.” Nelson v. Sullivan, 966 F.2d 363, 366 (8th Cir. 1992) (citations omitted).
Here, while some medical records indicate she received an epidural for back pain,
generally speaking, the new evidence does not indicate greater limitations than the ALJ
assigned to Plaintiff. Moreover, most of the new evidence repeats the same or similar
findings as the initially submitted evidence. Thus, the Court finds substantial evidence
exists in the Record, including the new evidence, to support the ALJ’s decision.
Plaintiff also maintains remand is required because the Appeals Council used
boilerplate language in denying Plaintiff’s request for review of the ALJ’s decision.
While the Appeals Council’s discussion is not terribly lengthy, Plaintiff does not cite, nor
is the Court aware, of any legal authority which requires remand for this reason.
IV.
CONCLUSION
The Commissioner’s final decision denying benefits is affirmed.
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IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
DATE: November 30, 2015
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