Boucher v. Astrue
Filing
20
ORDER AND OPINION entered by Judge Ortrie D. Smith. (Matthes, Renea)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
DEANNA BOUCHER,
)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)
Case No. 12-3473-CV-S-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 and supplemental security income
benefits. The Commissioner's decision is affirmed.
I. BACKGROUND
Plaintiff was born in October 1961, earned a bachelor’s degree, and has prior
work experience as a laborer and factory worker. She alleges she became disabled on
March 5, 2008, due to a combination of depression, anxiety, panic attacks, and back
pain. The issues raised by Plaintiff focus on her mental/emotional difficulties, so this
Order will as well.
Plaintiff last engaged in substantial gainful activity on March 5, 2008, R. at 11,
which is her alleged onset date. There is a paucity of medical evidence regarding her
mental/emotional problems. In February 2007, Dr. James Bright reported Plaintiff was
doing well on Paxil. He made a similar note in August 2007. His next note is from
March 6, 2008, at which time Plaintiff reported that she was angry, unable to sleep, and
could not get along with people. Dr. Bright increased her dosage of Paxil and added a
prescription for Seroquel. R. at 241. In January 2009, Plaintiff reported she was unable
to afford Seroquel and had stopped taking Paxil a month prior and now felt “down +
sad.” Dr. Bright prescribed 20 mg of Paxil – a smaller dosage than what he prescribed
in March 2008. R. at 242. There are no further notes from Dr. Bright.
In August 2009 Plaintiff sought treatment from the Kitchen Clinic. She reported
that she lost her job five years prior and was feeling a lot of pressure to get another one.
She reported depression and anxiety which she attributed to difficulties associated with
living with her brother, who suffered from alcoholism and had “multiple problems.” The
initial impression was depression and anxiety; she was prescribed Zoloft and a meeting
with a counselor was scheduled. R. at 247. Plaintiff met with the counselor, Michaela
Muehlbach, on September 3. She reported that she had been treated for depression
and anxiety for the past ten years, and that those conditions worsened when she was
diagnosed with hyperthyroidism.1 The thyroid treatment caused her pain and fatigue,
which led to her decision to quit her job. R. at 311. The counselor noted Plaintiff was
oriented to person, place, time and situation, could concentrate adequately, had an
intact memory, and normal thought processes and speech. The counselor diagnosed
Plaintiff as suffering from major depressive disorder, recurrent and severe without
psychotic features, and generalized anxiety disorder. She determined Plaintiff’s GAF
score was 38 and recommended Plaintiff “[p]ractice positive thoughts and thoughtstopping,” take daily walks and return in approximately two weeks.” R. at 312. Plaintiff
did not return for that appointment. R. at 314. On October 16 she related that Dr.
Bright had treated her for ten years by prescribing medication; the medication helped
but never relieved the depression. There is no mention of the Zoloft she had been
prescribed at the Kitchen Clinic, although that prescription was increased. R. at 315. In
November, Plaintiff reported that she had not experienced any changes in her
symptoms; the Zoloft was prescribed again and Wellbutrin was added. R. at 316.
However, the following month Plaintiff reported that she had stopped taking Wellbutrin
because it increased her anxiety and left a bad taste in her mouth. R. at 317. In April
2010 Plaintiff reported “Zoloft working quite well” and the prescription was refilled. R. at
318. This constitutes the last relevant record from the Kitchen Clinic.
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The ALJ found Plaintiff’s thyroid problems were not severe because they were
controlled with medication. This aspect of the ALJ’s decision is not challenged.
2
In June 2010 Plaintiff began receiving treatment from Dr. Steve Langguth. With
respect to her anxiety she requested “referral to mental health professional [and]
medication to sustain until appt.” Dr. Langguth stated the “[l]evel of severity is mild”
and prescribed the same dosage of Zoloft as had the Kitchen Clinic. R. at 298-300.
The Zoloft prescription was refilled in subsequent visits, and there are no further
discussions of Plaintiff’s mental difficulties in Dr. Langguth’s records.
Meanwhile, in October 2009 – before the Kitchen Clinic prescribed the effective
dosage of Zoloft – Plaintiff underwent a consultative examination performed by a
psychologist, Dr. David Lutz. Plaintiff told Dr. Lutz she felt irritable, jumpy, withdrawn,
and weepy. Her anxiety caused nausea and made her heart pound. Plaintiff explained
“that she was off her medication for about two to three months” earlier in the year –
apparently, a reference to the time between her receiving treatment from Dr. Bright and
the Kitchen Clinic – and during that time her anxiety intensified. She traced the onset of
her anxiety and depression to an auto accident that occurred approximately sixteen
years prior. R. at 263. She had been able to work for more than eighteen years; she
quit her last job of significance (which she had held for nineteen months) after she was
sent home without pay for cursing at a co-worker. The job before that she held for
seventeen years. Plaintiff denied any sleeping difficulty and spends her day watching
television. R. at 265. During the examination, Plaintiff “was responsive and
cooperative, but appeared discouraged and distraught. She cried throughout much of
the last half of the interview.” She was oriented to time, person and place, performed
adequately on mental acuity tests, and appeared to have a memory consistent with her
intellectual level, which Dr. Lutz assessed “to be in the average to possibly low average
ranges.” R. at 266.
Dr. Lutz concluded Plaintiff suffered from panic disorder with agoraphobia, panic
attacks, anxiety and major depression that was moderate to severe and possibly
recurrent. He assessed her GAF score at 50 and concluded that Plaintiff
seemed able to understand and remember simple and complex
instructions. She seemed able to sustain concentration and persistence
on simple and complex instructions. She seemed able to interact in at
least moderately demanding social situations. She seemed able to adapt
to her environment. Given that she has received treatment, I had some
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concern as to whether she could sustain performance consistently.
However, she has been able to work for several years even with her
anxiety and depressive symptoms.
R. at 267.
During the hearing Plaintiff testified that anxiety and depression makes her dizzy,
light headed, and nauseous. She is unable to (or has difficulty trying to) focus, breathe,
be around people, or leave the neighborhood. R. at 30-32. Unfamiliar situations make
her tense. R. at 34-35. She experiences daily crying spells, persistent feelings of
worthlessness, and panic attacks when in strange places or when near strange people.
These feelings sometimes get so strong that she cannot finish shopping. She spends
her day sitting on the couch and staring out the window. R. at 44-50.
With respect to these matters, the ALJ’s findings regarding Plaintiff’s residual
functional capacity (“RFC”) indicate Plaintiff can work in an environment that requires no
contact with the public and only occasional contact with supervisors and co-workers.
He also found Plaintiff was not limited in her ability to understand or remember short
and simple instructions, but was limited (between mildly and markedly) in her ability to
carry out such instructions. R. at 13. In making this finding the ALJ noted Plaintiff was
not experiencing memory problems, mood swings, or problems with insight, judgment,
attention span or concentration. He noted Plaintiff’s failure to see a mental health
professional, either at the Kitchen Clinic (beyond the first meeting) or after seeing Dr.
Langguth. Plaintiff’s difficulties began ten to fifteen years in the past and Plaintiff was
able to work until her alleged onset date, but the Record does not reflect her condition
worsened or any other reason why Plaintiff became disabled on March 5, 2008 but was
able to work before then. The ALJ also noted Plaintiff worked as a Census taker in
2010. While this did not rise to the level of substantial gainful activity, this job required
the very conduct Plaintiff contended she was unable to perform: leaving her house,
meeting with and talking to people, and encountering strange and new situations. R. at
15. With respect to the treating professionals, the ALJ gave “great weight” to Dr. Lutz’s
assessment because it was “widely consistent with the overall evidence of record, his
opinion is supported by his examination notes and a narrative explaining his
conclusions, and his opinion [was] persuasive.” The ALJ declined Plaintiff’s request to
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seek clarification of a single allegedly inconsistent statement in Dr. Lutz’s report (which
is discussed below), finding it unnecessary “because Dr. Lutz’s narrative report
adequately addresses and provides more than sufficient content for his functional
conclusions.” R. at 16. With respect to the two GAF scores, the ALJ found they
provided “little assistance in arriving at specific functional limitations or capabilities”
because they were based on “unexpressed impressions created by claimant’s
subjective complaints rather than from objective testing or reviewable measurements.”
R. at 16. Based on the RFC (which included physical limitations not at issue here) and
the testimony from a vocational expert, the ALJ found Plaintiff could return to her past
work as machine cutter II. R. at 17.
II. DISCUSSION
“[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).
Plaintiff’s primary argument rests on the GAF scores assigned by Ms. Muehlbach
and Dr. Lutz. She contends – at least implicitly and sometimes explicitly – that a certain
GAF score compels a finding of disability. This is incorrect: a GAF score is a fact that is
to be considered with all others. The question remains: was there substantial evidence
in the Record as a whole to support the ALJ’s findings? Halverson v. Astrue, 600 F.3d
922, 931 (8th Cir. 2010). The Court concludes there is such support.
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A score of 38 would suggest severe mental difficulties, and there is nothing in
Ms. Muehlbach’s report to support such an assessment. A score of 50 is at the top of a
range suggesting serious impairments, but Dr. Lutz’s report does not suggest how he
derived the score. This is one of the reasons why GAF scores are not regarded as
binding objective tests: their basis need not be identified with clarity, but for disability
determination purposes the rationale is important. Here, the rationale is either missing
(in the case of Ms. Muehlbach) or not supportive of a claim of disability (in the case of
Dr. Lutz).
Plaintiff also argues the ALJ erred in failing to seek clarification from Dr. Lutz.
Within his concluding paragraph (which is set out in full on pages three and four of this
Order), Dr. Lutz included the following sentence: “Given that she has received
treatment, I had some concern as to whether she could sustain performance
consistently.” Plaintiff focuses on this sentence in isolation to argue that Dr. Lutz
expressed unresolved concerns about her ability to work. However, considering that
sentence in context with the entire paragraph (and after considering that paragraph in
light of the entire report) makes it clear that Dr. Lutz is explaining that while he initially
had concerns about her ability to sustain performance sufficiently to work, his analysis
and her work history demonstrated that she would be able to work. The ALJ was not
required to seek clarification from Dr. Lutz.
Finally, Plaintiff attacks the VE’s testimony, but these attacks depend on Plaintiff
first establishing the RFC is incorrect. She has not established the RFC is incorrect, so
this argument fails.
III. CONCLUSION
For these reasons, 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: August 8, 2013
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