Wheeler v. Colvin

Filing 16

ORDER AND OPINION AFFIRMING COMMISSIONER'S FINAL DECISION DENYING BENEFITS. Signed on 5/2/17 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
ST. JOSEPH DIVISION
GEORGE WHEELER,

)
)
Plaintiff,
)
)
vs.
)
)
NANCY A. BERRYHILL,1
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Case No. 16-06104-CV-SJ-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 his application for disability insurance benefits. The Commissioner’s
decision is affirmed.

I. STANDARD OF REVIEW
The Court’s review of the Commissioner’s decision is limited to a determination
whether the decision is “supported by substantial evidence on the record as a whole.
Substantial evidence is less than a preponderance but…enough that a reasonable mind
would find it adequate to support the conclusion.” Andrews v. Colvin, 791 F.3d 923, 928
(8th Cir. 2015) (citations omitted). “As long as substantial evidence in the record
supports the Commissioner's decision, we may not reverse it because substantial
evidence exists in the record that would have supported a contrary outcome, or
because we would have decided the case differently.” Cline v. Colvin, 771 F.3d 1098,
1102 (8th Cir. 2014) (citation omitted). Though advantageous to the Commissioner, this
standard also requires the Court consider evidence that fairly detracts from the final
decision. Anderson v. Astrue, 696 F.3d 790, 793 (8th Cir. 2015) (citation omitted).
Substantial evidence means “more than a mere scintilla” of evidence; rather, it is

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Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted for
former Acting Commissioner Carolyn A. Colvin as the Defendant in this suit.

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).

II. BACKGROUND
Plaintiff was born in 1965. R. at 28, 113, 320, 351. He has a high school
education and some vocational training. R. at 30, 320, 352. Plaintiff previously worked
as a laborer and landscaper. R. at 31, 352-53. He applied for disability insurance
benefits, alleging a disability onset date of June 30, 2010. R. at 113-14. Plaintiff’s
application was denied, and he requested a hearing. On May 30, 2012, a hearing was
held before an administrative law judge (“ALJ”). R. at 24-50. On June 25, 2012, the
ALJ determined Plaintiff was not disabled. R. at 13-20. Plaintiff appealed that decision
to the Appeals Council, and his appeal was denied. R. at 1-3. Plaintiff then appealed to
this Court. Case No. 13-6120-CV-SJ-ODS.
In August 2014, this Court remanded the matter for further proceedings. R. at
418-20. The Court noted there was “a glaring paucity of medical evidence to support”
the ALJ’s determination of Plaintiff’s residual functional capacity (“RFC”). R. at 418.
The Court directed the ALJ to obtain additional information from Plaintiff’s doctors, and
conduct a new credibility assessment. Id. at 2. Upon remand, the Appeals Council
vacated the prior ALJ’s decision, and directed the ALJ to consolidate Plaintiff’s claims
files, create a single electronic record, and issue a new decision on the consolidated
claim. R. at 424.
In August 2015, another hearing was held, during which Plaintiff testified. R. at
347-67. A supplemental hearing was held in January 2016, to obtain medical expert
testimony. R. at 329-46. The ALJ issued a decision in May 2016, finding Plaintiff was
not disabled. R. at 301-21. In reaching her decision, the ALJ found Plaintiff had the
following severe impairments: fibromyalgia, chronic fatigue syndrome, right shoulder
rotator cuff repair in December 2014, carpal tunnel syndrome, depression, and learning
disorder/unspecified intellectual disability. R. at 303-04. The ALJ determined Plaintiff
had the RFC to “perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except he cannot reach overhead but can frequently reach in other directions.” R. at
308. Plaintiff can frequently handle, finger, and feel. Id. He can frequently climb
ladders and stairs, but can only occasionally climb ladders, ropes, and scaffolds. Id.
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Plaintiff can occasionally balance, stoop, kneel, crouch, and crawl. Id. at 308-09. He
can frequently tolerate wetness and pulmonary irritants, but can only occasionally
tolerate unprotected heights and moving mechanical parts. Id. at 309. Plaintiff “can
perform simple, routine, repetitive tasks requiring no independent decision making or
changes in the work setting.” Id. He can occasionally interact with coworkers but
cannot interact with the public. Id. Plaintiff would be off task for up to five percent of the
workday. Id. Based upon the RFC and the Vocational Expert’s (“VE”) testimony, the
ALJ concluded Plaintiff could work as a collator operator, inserting machine operator,
and router. R. at 321. Plaintiff appealed the ALJ’s decision to this Court.

III. DISCUSSION
Plaintiff argues the ALJ’s decision must be reversed because the ALJ’s RFC did
not adequately reflect Wheeler’s limitations in that the ALJ (1) did not properly weigh the
medical opinions, and (2) erred in evaluating Plaintiff’s credibility. One’s RFC is the
“most you can still do despite your limitations.” 20 C.F.R. § 404.1545(a)(1). The ALJ
must base the RFC on “all of the 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).

(A) Medical Opinions
According to Plaintiff, the three medical opinions in the record contain more
severe limitations than the ALJ’s RFC. Plaintiff argues the ALJ erred in failing provide
adequate reasons for discounting these medical opinions. Plaintiff also contends the
ALJ’s RFC is not supported by substantial evidence because the ALJ failed to
adequately evaluate the medical evidence. Doc. #9, at 17.

(1) Louis Bein, M.S.
Plaintiff attended two consultative psychological evaluations with Louis Bein,
M.S. In January 2015, after the initial consultative evaluation, Bein completed a Medical
Source Statement – Mental (“MSSM”), and opined Plaintiff had moderate limitation
relating to complex instructions, mild limitation in social functioning, and moderate
limitation in the ability to respond appropriately to usual work situations and to changes
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in a routine work setting. R. at 318, 763-65. In September 2015, Bein completed
another MSSM, and opined Plaintiff had marked limitations in carrying out complex
instructions and making judgments on complex work related decisions, and moderate
limitations in all other areas except mild limitation in interacting appropriately with the
public. R. at 318, 856-59. Bein also administered an intelligence quotient (“IQ”) test,
wherein he concluded Plaintiff’s full scale IQ was 52. R. at 854, 858. Bein opined
Plaintiff’s test performance was below expectations given his “social presentation,
presentation, vocabulary, conceptualization, and some of his past activities (for
example, working on lawnmowers and driving).” R. at 854. Bein surmised Plaintiff’s IQ
score “may have been affected by his mood and/or lack of motivation,” and his IQ was
likely between 65 and 75. R. at 854.
The ALJ gave “little weight” to Bein’s opinions because they were based upon
Plaintiff’s IQ scores and estimates of Plaintiff’s IQ scores, which were inconsistent with
the medical expert’s testimony, Plaintiff’s ability to drive and work at a substantial gainful
activity level, Plaintiff’s description of his daily activities, and the comments that
Plaintiff’s performance on the IQ test was below Bein’s expectations. R. at 318.
Plaintiff argues the ALJ failed to adequately weigh Bein’s opinion.
The amount of weight given to a non-controlling medical opinion is determined by
applying several factors: (1) whether the source examined Plaintiff; (2) the length,
nature, and extent of the treatment relationship and frequency of examination; (3) the
extent to which the relevant evidence – in particular, medical signs and laboratory
findings – supports the opinion; (4) the extent to which the opinion is consistent with the
record as a whole; (5) whether the opinion is related to the source’s specialty area; and
(6) other factors tending to support or contradict the opinion. Owen v. Astrue, 551 F.3d
792, 800 (8th Cir. 2008) (quoting 20 C.F.R. §§ 404.1527(d), 416.927(d) and citing
Wagner v. Astrue, 499 F.3d 842, 848 (8th Cir. 2007)).
Although he evaluated Plaintiff twice, Bein’s opinion was based upon an IQ test
result that was, according to Bein, “below expectations.” Additionally, the IQ test result
was inconsistent with medical expert’s testimony, Plaintiff’s abilities to drive and work,
and Plaintiff’s self-proclaimed daily activities. The Court reviewed the record and finds
substantial evidence supports the ALJ’s decision to discount Bein’s opinion. The Court

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also finds the ALJ provided good reasons explaining the weight she afforded Bein’s
opinion. The Court affirms the ALJ’s decision to afford little weight to Bein’s opinion.

(2) Sara Dross-Gonzalez, Psy.D.
After Bein’s second evaluation of Plaintiff, Plaintiff’s counsel had additional
questions regarding Plaintiff’s functioning. R. at 683-84. As a result, the ALJ sent
Plaintiff’s medical records to Dr. Dross-Gonzalez for review. In November 2015, Dr.
Dross-Gonzalez answered interrogatories and completed an MSSM. R. at 872-80. Dr.
Dross-Gonzalez opined Plaintiff suffered from major depression and an unspecified
intellectual disability. R. at 875. She concluded Plaintiff had mild to moderate
limitations with regard to understanding, remembering, and carrying out instructions;
and mild to moderate limitations in his ability to interact appropriately with supervisors,
co-workers, and the public. R. at 872-74. She determined Plaintiff may be off task for
twenty percent of the time due to depression and his intellectual deficiency, and he
would likely need redirection on an hourly basis at work. R. at 879.
The ALJ gave “little weight to the opinion of Dr. Dross-Gonzalez because it is
inconsistent with the testimony of Dr. England, the claimant’s adaptive functioning, the
fact that there was no indication in the claimant’s history of deterioration in ability due to
a neurocognitive disorder.” R. at 313. The ALJ also discounted Dr. Dross-Gonzalez’s
opinion “because it was based on an assumption that the claimant would be off task
20% of the time.” R. at 319. The ALJ noted Dr. Dross-Gonzalez’s assumption that
Plaintiff would be off task twenty percent of the time was inconsistent with the testimony
of Dr. England, the September 2015 consultative examination findings, Plaintiff’s
adaptive functioning, and Plaintiff’s description of his daily activities. Id. Finally, the ALJ
afforded little weight to Dross-Gonzalez’s opinion because it did not address the
differences in Plaintiff’s IQ scores, and the possibility his performance was affected by
his mood and/or lack of motivation. Id.
Plaintiff contends the ALJ’s assertion that Dr. Dross-Gonzalez’s opinion was
based upon an assumption he would be off task twenty percent of the time is not
supported by the record. He maintains Dr. Dross-Gonzalez’s opinion was not simply
based upon her assumption that Plaintiff would be off task twenty percent of the time,
but was based upon her review of the medical record and IQ exam. Plaintiff also
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argues Dr. Dross-Gonzalez’s opinion that he would be off task twenty percent of the
time is not inconsistent with the record.
“[O]pinions of nonexamining sources are generally…given less weight than those
of examining sources.” Wildman v. Astrue, 596 F.3d 959, 967 (8th Cir. 2010) (quoting
Willcockson v. Astrue, 540 F.3d 878, 880 (8th Cir. 2008) and citing 20 C.F.R. §
404.1527(f)). Here, as set forth above, the ALJ provided several adequate bases for
discounting the opinion of Dr. Dross-Gonzalez. Accordingly, the Court affirms
Defendant’s decision to afford little weight to Dr. Dross-Gonzalez’s opinion.

(3) Thomas England, Ph.D.
The ALJ obtained another medical expert, Thomas England, Ph.D., to review
Plaintiff’s medical files and testify at a supplemental hearing in April 2016. R. at 313-14,
331-42. Dr. England testified that although Plaintiff’s alleged onset date was June 30,
2010, he was not treated for a mental impairment until January 4, 2011. R. at 313, 335.
Although Plaintiff was diagnosed with major depression, Dr. England noted medication
controlled the symptoms. R. at 313, 335-37. Dr. England opined Plaintiff’s “depressive
conditions” were “well controlled” while he is on anti-depressant medication. R. at 337.
Dr. England also opined Plaintiff’s low IQ score (obtained through Bein’s testing) may
have been the result of a pain disorder, lack of medication, or low level engagement,
motivation, or effort. R. at 314, 338. Dr. England concluded Plaintiff was not markedly
impaired; rather, he was mildly impaired with regard to daily living activities, and
moderately impaired with regard to social functioning and concentration, persistence,
and pace. R. at 314, 338. Dr. England stated Plaintiff would not be off task twenty
percent of the time, but would be off task five or ten percent of the time. R. at 314, 340.
The ALJ afforded “great weight” to Dr. England’s opinion because it was
“consistent with the material medical evidence in the file and notes from treating and
examining medical professionals cited in his testimony.” R. at 314. The ALJ further
noted Dr. England “had the opportunity to review all the relevant medical evidence prior
to offering his opinion and thoroughly discussed the claimant’s mental treatment
including inconsistencies with other evidence in the record.” Id. Although given the
opportunity to cross-examine Dr. England during the supplemental hearing in April
2016, Plaintiff’s attorney chose not to do so. R. at 314, 340.
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Plaintiff contends the ALJ erred in not addressing Dr. England’s testimony that
there was a “very significant decrement in intellectual functioning,” and Plaintiff’s reports
of pain or dizziness could have impacted his IQ scores. Doc. #9, at 26. But the ALJ
addressed Dr. England’s opinions regarding Plaintiff’s intellectual functioning and his IQ
scores. The ALJ specifically noted “Dr. England indicated the claimant had a learning
disorder and not a cognitive disorder” that did not meet a listing. R. at 314. According
to the ALJ, Dr. England “indicated no physician noted cognitive deficits consistent with a
30 to 40% IQ loss.” Id. And Dr. England noted there were several possible reasons
why Plaintiff’s IQ score was significantly lower than expected. Id.
Plaintiff also argues Dr. England’s testimony supported greater limitations than
those included in the ALJ’s RFC. Doc. #9, at 26-27. Plaintiff, however, does not specify
what testimony Dr. England provided that would have resulted in greater limitations.
Instead, Plaintiff points to other physician’s records related to Plaintiff’s pain and ability
to concentrate to support his argument. Id. The Court reviewed the record and finds
substantial evidence supports the ALJ’s decision to afford great weight to Dr. England’s
opinion. The Court also finds the ALJ provided good reasons explaining the weight she
afforded Dr. England’s opinion. Therefore, the Court affirms Defendant’s decision to
afford great weight to Dr. England’s opinion.

B. Plaintiff’s Credibility
Plaintiff also maintains the ALJ erred in evaluating his credibility. The familiar
standard for analyzing a claimant’s subjective complaints is set forth in Polaski v.
Heckler, 739 F.2d 1320 (8th Cir. 1984):
While the claimant has the burden of proving that the disability results
from a medically determinable physical or mental impairment, direct
medical evidence of the cause and effect relationship between the
impairment and the degree of claimant’s subjective complaints need not
be produced. The adjudicator may not disregard a claimant’s subjective
complaints solely because the objective medical evidence does not fully
support them.
The absence of an objective medical basis which supports the degree of
severity of subjective complaints alleged is just one factor to be
considered in evaluating the credibility of the testimony and complaints.
The adjudicator must give full consideration to all of the evidence
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presented relating to subjective complaints, including the claimant’s prior
work record, and observations by third parties and treating and examining
physicians relating to such matters as:
1. The claimant’s daily activities;
2. the duration, frequency and intensity of the pain;
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of medication;
5. functional restrictions.
The adjudicator is not free to accept or reject the claimant’s subjective
complaints solely on the basis of personal observations. Subjective
complaints may be discounted if there are inconsistencies in the evidence
as a whole.
Id. at 1322. The ALJ “need not explicitly discuss each Polaski factor...[t]he ALJ need
only acknowledge and consider those factors before discounting a claimant’s subjective
complaints.” Eichelberger v. Barnhart, 390 F.3d 584, 590 (8th Cir. 2004) (citations
omitted); see also Samons v. Apfel, 497 F.3d 813, 820 (8th Cir. 2007).
The ALJ properly analyzed Plaintiff’s credibility. She found, and discussed at
length, the objective medical evidence did not support the severity of Plaintiff’s alleged
disabling symptoms and limitations. R. at 315-17. The ALJ considered the opinions of
Dr. England and Bein when evaluating Plaintiff’s allegations of disabling mental
impairments. R. at 315-16. The ALJ contemplated Plaintiff’s continued employment as
a laborer and landscaper after the onset date. R. at 316-17. The ALJ stated Plaintiff’s
work activity after the onset date “is indicative of an ability to work and inconsistent with
his allegation he was completely disabled as of the alleged onset date and thereafter.”
R. at 317. The ALJ also found Plaintiff had minimal treatment for physical and mental
impairments in 2012 and 2013. R. at 316. And the ALJ properly noted Plaintiff was not,
at the time of the ALJ’s opinion, receiving treatment for mental health issues but was
taking medication, which controlled the symptoms. Id.
The ALJ acknowledged and considered the Polaski factors. R. at 21-27. The
ALJ is not required to discuss each factor in turn, but must merely consider the Polaski
factors. See Eichelberger, 390 F.3d at 590. To the extent Plaintiff argues the medical
evidence could support a decision contrary to the ALJ’s, the Court will not substitute its
judgment for that of the ALJ. See Baldwin v. Barnhart, 349 F.3d 549, 558 (8th Cir.
2003) (stating “[t]he credibility of a claimant’s subjective testimony is primarily for the
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ALJ to decide, not the courts.”). The Court finds the ALJ did not err in analyzing
Plaintiff’s credibility.
IV. CONCLUSION
The Court concludes there is substantial evidence in the record as a whole to
support the ALJ’s decision. The Commissioner’s decision denying benefits is affirmed.

IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: May 2, 2017

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