Kennell v. Colvin

Filing 18

ORDER entered by Judge Nanette Laughrey. The Commissioner's decision is affirmed. (Rosenbaum, Daniel)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
JACQUELINE J. KENNELL,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner
of Social Security
Defendant.

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Case No. 15-cv-03190-NKL

ORDER
Before the Court is Plaintiff Jacqueline Kennell’s appeal of the Commissioner of Social
Security’s final decision denying her application for disability insurance benefits and
supplemental security income under Title II and Title XVI of the Social Security Act. [Doc. 3].
For the following reasons, the Commissioner’s decision is affirmed.

I.

Background
Plaintiff Jacqueline Kennell was born on September 19, 1972. She completed some high

school and has a GED.

Kennell performed past work manufacturing engine parts, building

transmission inputs, and cleaning hotels.

In her application filed on June 26, 2012, Kennell

alleges an onset date of September 11, 2009 stemming from depression, panic disorder, chronic
neck pain following a cervical fusion, coronary artery disease, and anxiety.
A. Medical History

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In October 2007, Kennell injured her neck while working as a mechanic at Diesel
Exchange. [Tr. 379]. As a result, on February 19, 2008, Dr. Sunghoon Lee performed a 2-level
cervical fusion on Kennell’s neck. [Tr. 382]. Kennell initially demonstrated improvement after
the surgery, [Tr. 383], but she reinjured her neck in July 2009 and was diagnosed with a cervical
sprain and trapezius sprain, [Tr. 386]. She was directed to take over-the-counter pain relief
medications.

Id.

Kennell also received physical therapy and other treatment through her

workers’ compensation insurance, but her neck pain persisted and she stopped treatment at St.
John’s Physical Therapy after stating that her insurance did not sufficiently cover the cost. [Tr.
384].
The day after her 2007 neck injury, on October 18, 2007, Kennell received treatment at
St. John’s Hospital for reported panic attacks. [Tr. 379]. While Kennell stated that she had
never suffered panic attacks before her neck injury, she was diagnosed with depression at age 17,
in large part, she believes, due to sexual abuse she suffered as a child.

[Tr. 380, 1563].

According to Kennell, she has taken anti-depressants for most of her life. [Tr. 1561].
Kennell later reported increased anxiety and stopped taking her prescription of Celexa, an
antidepressant. [Tr. 387]. When Kennell presented at Ozarks Community Hospital in 2010, she
was given a prescription for Ativan and instructed to resume taking Celexa daily. Id. Kennell
also presented at Jordan Valley Community Health Center in June 2010. She reported that her
depression had improved but her anxiety had worsened. [Tr. 387-88]. Sarah Jones, a nurse
practitioner, diagnosed Kennell with depression and instructed her to continue taking Effexor.
[Tr. 388].
Around this time, Kennell also expressed fears that she was going to have a heart attack
and took a beta blocker to slow her heart rate. [Tr. 383]. In June 2012, she presented at Mercy

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Hospital with chest pain. [Tr. 425]. However, she was told by emergency room personnel that
her chest pain was the result of anxiety. [Tr. 426].
Kennell’s treating physician, Dr. Malcolm Oliver, provided a medical opinion in August
2013. Dr. Oliver diagnosed Kennell with chronic depression, coronary artery disease with a
history of myocardial infraction, and panic disorder. [Tr. 1589]. Dr. Oliver opined that these
impairments would restrict Kennell’s ability to concentrate and work under extreme
temperatures. As a result, Dr. Oliver concluded, Kennell’s condition would likely deteriorate
under workplace stress and she would likely miss four or more work days per month. [Tr. 1590].
On March 7, 2011, Kennell presented to Dr. Shane Bennoch, who evaluated her as part of
her workers’ compensation claim. Bennoch opined that Kennell was limited in her upper
extremities as a result of her neck injury. [Tr. 393-94]. He concluded that Kennell could
infrequently lift or carry 20 pounds, stand or walk for about 6 hours out of an 8-hour work day,
and push or pull objects no greater than 40 pounds and in a nonrepetitive fashion. [Tr. 393]. Dr.
Bennoch further concluded that Kennell was limited in her overhead reach but otherwise had
unlimited manipulative abilities in her hands and fingers. [Tr. 394]. While Dr. Bennoch did not
state that Kennell was unable to work, he remarked that “jobs requiring repetitive lifting or a lot
of change in position . . . should be avoided or held to a minimum.” Id.
In 2012, Kennell completed three treatment sessions with Richard Boyd, M.S., a
therapist. Boyd diagnosed Kennell with depression and generalized anxiety disorder. [Tr. 417].
He noted that Kennell’s living situation was poor because she had been residing with her 22year-old son, with whom she had conflicts, since her financial situation worsened in 2011. [Tr.
421]. Kennell expressed worries about her finances, health, and family issues. Id. As a result,
Boyd opined, Kennell was overwhelmed by her circumstances, demonstrated feelings of

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helplessness, and was reporting increased insomnia, fatigue, anxiety, and worry. [Tr. 418].
Kennell’s worries prevented her from feeling calm or at ease, Boyd concluded. Id. He described
the severity of Kennell’s depression as “moderate” and assessed her GAF score in the 50 to 55
range. [Tr. 417-18].
Boyd also submitted a medical source statement in July 2012. In the statement, he
opined that Kennell has marked limitations in 10 out of 20 areas of functioning: in her ability to
understand and remember detailed instructions, maintain attention and concentration for
extended periods, perform activities within a schedule and maintain regular attendance, complete
a normal workday and work week without interruption, interact appropriately with the general
public, accept instructions and respond appropriately to criticism, get along with co-workers
without distractions or exhibiting behavioral extremes, maintain socially appropriate behavior
and adhere to basic cleanliness standards, travel in unfamiliar places, and set realistic goals or
make independent plans. [Tr. 441-43]. Boyd concluded that Kennell’s impairments would cause
her to miss four or more days of work per month. [Tr. 443].
In advance of Kennell’s disability hearing, Steven Akeson, Psy.D., evaluated Kennell’s
medical records and reached a diagnosis of acute myocardial infraction, discogenic and
degenerative back disorder, affective disorder, and anxiety disorder. [Tr. 496]. Dr. Akeson
opined, however, that none of these impairments were severe and that, although they resulted in
some pain and limitations, they do not preclude work activity. [Tr. 495]. Dr. Akeson arrived at
this conclusion by assessing Boyd’s opinion, which he found technically flawed and internally
inconsistent, and by considering Kennell’s medical history, which, he found, demonstrates mild
symptoms, moderate treatment, and no signs of severe impairments in daily activities. [Tr. 495,

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497, 500]. Dr. Akeson finally opined that Kennell could frequently lift 10 pounds, occasionally
lift 20 pounds, and stand or walk for 6 hours out of an 8-hour workday. [Tr. 498].
Dr. James Jackson, Ph.D., also conducted a psychological evaluation in advance of
Kennell’s hearing.
distress.

During her evaluation, Kennell complained of pain and psychological

[Tr. 1567].

Dr. Jackson determined that Kennell suffered from significant

psychological problems. [Tr. 1563]. Specifically, he opined that Kennell was dependent upon—
but at odds with—her family members, prone to waves of anxiety, defeatist in outlook, and
preoccupied with health concerns.

Dr. Jackson noted, however, that Kennell’s physical

complaints were likely extreme. [Tr. 1567-69]. He ultimately diagnosed Kennell with major
depressive disorder, panic disorder with agoraphobia, and pain disorder caused both by
psychological factors and by Kennell’s general medical condition.

[Tr. 1572].

While he

described Kennell’s depressive disorder as moderate and opined that her work injuries, on their
own, did not render her disabled, Dr. Jackson concluded that Kennell is permanently disabled
when considering the sum of her impairments. [Tr. 1573].
At her hearing, Kennell testified that she lived in her oldest son’s apartment along with
his friend and her younger son. Kennell stated that she had not worked since September 2009,
her alleged onset date, around the time she was fired from a job at a manufacturing plant. [Tr.
96]. Kennell claimed that she has been unable to work due to constant fatigue, aches, pains, and
headaches caused by her neck impairment. [Tr. 101]. While Kennell stated that she could stand
for an hour on a good day, she maintained that such days are rare and ordinarily she spends most
of her time sitting in a recliner chair in her living room. [Tr. 100]. When afflicted with a severe
headache, which Kennell testified occurred regularly, she would sleep for several hours. [Tr.

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102]. Otherwise Kennell stated that she spends significant time playing games on her computer.
[Tr. 109].
Kennell further stated that she does laundry for her youngest son, but rarely cooks, shops,
or cleans for the family. [Tr. 108-09]. She testified that she could drive, although she did not
have money to pay her vehicle registration.

[Tr. 95].

And Kennell acknowledged that

medication has improved her panic attacks, but maintained that her psychological symptoms had
worsened since her 2007 neck injury. [Tr. 112, 115].
George Horne, a vocational expert, also testified at Kennell’s hearing. In response to
questions posed by the ALJ, Horne opined that a person with physical limitations and Kennell’s
background could perform sedentary jobs that exist in the national and state economies. [Tr.
118-19].

On cross-examination, Kennell’s counsel asked Horne whether a person with

“moderate restrictions”—defined as limitations causing weekly unscheduled work breaks or an
inability to perform up to 20% of daily work—could similarly find unskilled employment.
Horne responded that such a person would not be able to sustain competitive employment on a
full-time basis. [Tr. 121].
B. ALJ’s Decision
After the hearing, the ALJ issued a decision on November 12, 2013.

He found that

Kennell suffered from the following severe impairments: a history of coronary artery disease
with myocardial infarction and stenting, degenerative disk disease of the cervical spine status
post fusion, major depressive disorder, panic disorder, and generalized anxiety disorder. [Tr.
69]. Relying on the testimony of George Horne, the vocational expert, the ALJ concluded that
Kennell is unable to perform past relevant work but, considering her age, education, experience,

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and limitations, Kennell could find other jobs that exist in significant numbers in the national
economy.
As part of this analysis, the ALJ assessed Kennell’s RFC as follows:
[Kennell] has the residual functional capacity to perform light work as defined in
20 CFR 404.1567(b) and 416.967(b) except: she can lift and carry 20 pounds
occasionally; she can lift and carry 10 pounds frequently; she can stand and/or
walk six hours in an 8-hour workday; she can sit six hours in an 8-hour workday;
she can push and/or pull the same weights; she should do no climbing of ladders,
ropes, or scaffolds; she should only occasionally climb ramps and stairs; she
should only occasionally balance, stoop, kneel, crouch, and crawl; she can
perform tasks requiring no more than occasional turning of her head from side to
side; she must avoid concentrated exposure to temperature extremes, vibration,
and hazards, such as, unprotected heights and dangerous moving machinery; and
she can perform simple, routine tasks requiring no more than occasional contact
with the public, occasional, superficial interaction with coworkers and
supervisors.
[Tr. 74].
The ALJ reached this RFC by “consider[ing]” the opinion of Dr. Akeson, who opined
that Kennell displayed only mild limitations in her daily activities, social functioning,
concentration, persistence, and pace. [Tr. 73]. In doing so, the ALJ agreed with Dr. Akeson’s
conclusion that Kennell’s limitations were not extreme, but disagreed with Dr. Akeson’s opinion
that Kennell displayed no severe mental impairments whatsoever. [Tr. 73, 79]. The ALJ further
gave “considerable” weight to Dr. Bennoch’s opinion that Kennell could perform work with only
moderate physical restrictions.

[Tr. 77].

Additionally, the ALJ gave “little weight” to

components of Boyd, Dr. Jackson, and Dr. Oliver’s opinions: he discounted Boyd’s opinion that
Kennell was extremely limited in ten areas of functional capacity, Dr. Jackson’s conclusion that
Kennell displayed marked limitations in several functional categories and was rendered
significantly disabled by the sum of her impairments, and Dr. Oliver’s assessment as to the

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extremity of Kennell’s physical limitations, including his conclusion that Kennell’s impairments
would cause her four or more absences per month. [Tr. 77-79].
In discounting Boyd’s opinion, the ALJ concluded that it “contrast[ed] sharply with the
other evidence of record,” failed to acknowledge that certain symptoms, including Kennell’s
panic attacks, “have been controlled with her current medications,” and was inconsistent with
both Boyd’s treatment notes and the course of treatment that he pursued. [Tr. 78].
The ALJ similarly discounted Dr. Jackson’s opinion because it was “not consistent with
treatment records,” with Kennell’s “own reported activities of daily living,” and with “the
medical evidence of record in general.” Id. The ALJ further noted that Dr. Jackson, as a
consultative examiner, did not have a treatment relationship with Kennell. Id.
In discounting Dr. Oliver’s opinion, the ALJ concluded that the extreme limitations cited
by Dr. Oliver were not reflected on the record because Kennell’s cardiac condition was wellcontrolled by medication, her panic attacks were not incapacitating, and, broadly, Dr. Oliver’s
opinion is inconsistent with his treatment notes and with the record as a whole. [Tr. 79].
Finally, the ALJ determined that Kennell was “not entirely credible” because, while her
alleged symptoms were reflected in the medical record to the extent they were consistent with a
light exertional RFC, she overstated the intensity of these symptoms in her testimony. [Tr. 75].
Specifically, the ALJ noted Kennell’s daily activities, including an average of six hours on the
computer despite her reports of headaches and impaired concentration; her treatment history,
which had been generally successful in controlling her symptoms; the situational nature of her
symptoms, which stemed in part from financial and other problems; and the fact that Kennell
returned to work after her initial neck surgery. [Tr. 76].

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II.

Discussion
A district court will reverse the Commissioner’s findings “only if they are not supported

by substantial evidence or result from an error of law.” Byes v. Astrue, 687 F.3d 913, 915 (8th
Cir. 2012). Kennell argues that the Commissioner’s decision is not supported by substantial
evidence in the record as a whole because, first, the ALJ assessed Kennell’s RFC after
improperly discounting the opinions of Boyd, Dr. Bennoch, and Dr. Oliver. Second, Kennell
contends the ALJ erred in ignoring the vocational expert’s testimony that an impaired individual,
as defined based on several hypothetical questions, would be unable to maintain regular
employment. Finally, Kennell challenges the ALJ’s finding that her testimony regarding the
severity of her symptoms was not fully credible.
A. Weight Given to Boyd’s Opinion
Kennell argues that Boyd was a treating source, and therefore that his opinion should be
afforded controlling weight, because Boyd is a “psychologist” who conducted “regular therapy
sessions” with her. [Doc. 11, p. 6]. Generally, a treating source’s opinion is entitled controlling
weight if it “is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in the record.”

Singh v.

Apfel, 222 F.3d 448, 452 (8th Cir. 2000). See also Wagner v. Astrue, 499 F.3d 842, 848–49 (8th
Cir. 2007).
The record does not indicate, however, that Boyd served as a treating source for Kennell.
Although Kennell refers to Boyd as a psychologist, he is repeatedly referenced in the record as
“Richard Boyd, M.S.” See [Tr. 406, 407, 417, 419, 420, 423]. In one document on the record,
Boyd is listed as “Ph.D., Psy.D.” on a typed form, but Boyd crossed out this description by hand
when he completed the document. See [Tr. 444]. The Court thus cannot find any support for

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Kennell’s statement that Boyd is a licensed psychologist.
The evidence supports a finding that Boyd is at most a licensed therapist, and as such his
opinion is considered “other medical evidence.” Lacroix v. Barnhart, 465 F.3d 881, 886-87 (8th
Cir. 2006) (citing 20 C.F.R. §§ 404.1502, 404.1513(a)) (noting that a “treating source” is defined
as a “physician, psychologist, or other acceptable medical source,” and that the regulations
exclude therapists from the list of “other acceptable medical sources”). See also Raney v.
Barnhart, 396 F.3d 1007, 1010 (8th Cir. 2005) (“A therapist is not an acceptable medical source
to establish a medically determinable impairment.”) (internal quotation marks omitted). The
Eighth Circuit has remarked that “other medical evidence” is not entitled any weight; rather,
when considering this evidence, “the ALJ has more discretion and is permitted to consider any
inconsistencies found within the record.” Raney, 396 F.3d at 1010. In exercising his discretion,
an ALJ may give weight to other evidence when the source “has seen the individual more often
than the treating source and has provided better supporting evidence and a better explanation for
his or her opinion.” SSR 06-03p, 2006 WL 2329939, at *5 (Aug. 9, 2006).
The record reflects that Boyd’s treating relationship with Kennell was limited to three
sessions over the course of one month in 2012. See [Tr. 406-07, 418-19]. Boyd thus only
observed Kennell over a brief temporal period, especially considering that “[a]n individual’s
level of [mental] functioning may vary considerably over time,” 20 C.F.R. Pt. 404, Subpart P,
App. 1, § 12.00(D), and therefore longitudinal data is particularly relevant when evaluating
mental impairments. Andler v. Chater, 100 F.3d 1389, 1393 (8th Cir. 1996). Boyd’s notes also
indicate he believed Kennell’s anxieties could be addressed with weekly therapy, but it appears
Kennell did not pursue this course of treatment. See Roth v. Shalala, 45 F.3d 279, 282 (8th Cir.
1995) (finding that failure to follow a course of treatment, absent good reason, is grounds for

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denying a claim for benefits). Even if Kennell had a good reason to discontinue her treatment
with Boyd, their relationship—limited to three sessions within a month of her social security
application—cannot be considered an ongoing one. Gowell v. Apfel, 242 F.3d 793, 798 (8th Cir.
2001) (lack of ongoing counseling disfavors a disability finding based on mental impairments).
The ALJ thus did not owe Boyd’s opinion deference.
Even assuming Boyd is a psychologist, substantial evidence supports the ALJ’s finding
that his opinion is internally inconsistent with his evaluation of Kennell and his treatment of her
mental impairments. While Boyd opined that Kennell displayed marked limitations in ten areas
of functioning and would miss four or more work days per month, he assessed Kennell’s GAF
score in the 50 to 55 range, a figure that reflects more moderate impairments. See DSM–IV–TR
34 (scores of 51 or better are consistent with “moderate” symptoms); Halverson v. Astrue, 600
F.3d 922, 930 (8th Cir. 2010) (an ALJ may rely, in part, on GAF scores “between 52 and 60” in
discounting a source’s opinion that the claimant would be unable to sustain employment).
Further, Boyd noted after his first session with Kennell that she displayed appropriate
motivation, verbal fluency, and grooming. [Tr. 371-372]. He diagnosed her with depression of a
mild to moderate severity. [Tr. 372, 418]. While he recommended weekly therapy sessions,
Boyd offered in conclusion that “[t]here are no noted barriers that would impair [Kennell’s]
ability to achieve goals on the treatment plan with the next year, which would put the tentative
termination of therapy in June of 2013.” [Tr. 373]. On subsequent visits, moreover, Boyd noted
Kennell’s depression and anxiety, but observed that her anxieties stemmed, in part, from her
living situation and concluded that her depression was moderate. [Tr. 406, 407, 418].
Boyd’s treatment notes thus do not reflect the severe impairments he indicated in his
opinion. Flynn v. Astrue, 513 F.3d 788, 793-94 (8th Cir. 2008) (finding the ALJ properly

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discounted a source’s opinion when they were inconsistent with his treatment notes).
Finally, the ALJ found that Boyd’s opinion was also inconsistent with the record as a
whole because it “constrast[ed] sharply with the other evidence of record, especially considering
[Kennell’s] reports that her panic attacks have been controlled with her current medications.”
[Tr. 78]. Substantial evidence supports this conclusion. Throughout the record, medical notes
describe Kennell’s medications as effective in easing her anxiety. See [Tr. 795, 809, 912, 981,
1135, 1144, 1308, 1312]. Kennell also testified that, at the time of her hearing, she had not
recently suffered panic attacks because she was taking Ativan to prevent their occurrence. [Tr.
112]. Therefore, both the medical record and Kennell’s own testimony indicate that her mental
symptoms improved with treatment and thus the severity of these symptoms could be controlled.
Renstrom v. Astrue, 680 F.3d 1057, 1066 (8th Cir. 2012) (“[Claimant’s] symptoms improved
with treatment, and thus, despite [claimant’s] allegations of disabling levels of pain, the record
showed he could use treatment to control the severity of the symptoms.”). As the ALJ properly
found, this evidence is inconsistent with Boyd’s opinion of disabling limitations. See Stout v.
Shalala, 988 F.2d 853, 855 (8th Cir. 1993) (“If an impairment can be controlled by treatment or
medication, it cannot be considered disabling.”).
B. Weight Given to Dr. Oliver and Dr. Bennoch’s Opinions
Kennell contends that the ALJ erred in assessing her physical RFC because he
“summarily” rejected the opinions of Dr. Oliver and Dr. Bennoch without citing any contrary
evidence on the record. [Doc. 11, p. 9].
Yet in discussing both doctors’ opinions, the ALJ cited evidence on the record. See [Tr.
78-79] (finding that Dr. Oliver’s opinion is inconsistent with his treatment notes and Kennell’s
effective medication regimen); [Tr. 77] (assessing which elements of Dr. Bennoch’s opinion are

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consistent with the record and which elements are not). In fact, after considering Dr. Bennoch’s
opinion in light of the record as a whole, the ALJ gave Dr. Bennoch “considerable weight,”
discounting only Dr. Bennoch’s conclusion that Kennell is limited in overhead reaching and
climbing, and that she is disabled. [Tr. 77]. A medical opinion that the claimant is disabled is
not entitled any weight. House v. Astrue, 500 F.3d 741, 745 (8th Cir. 2007). Further, given that
Dr. Bennoch only examined Kennell once, he is not considered a treating source. 20 C.F.R. §
404.1502 (defining “treating source” as an “acceptable medical source who . . . has, or has had,
an ongoing treatment relationship with you”). The ALJ may thus discount Dr. Bennoch’s
opinion if, among other factors, it is inconsistent with the record or unsupported by the record.
Wagner, 499 F.3d at 848 (citing 20 C.F.R. § 404.1527(d)). Both of these factors are apparent in
the ALJ’s assessment.
Dr. Oliver, on the other hand, served as Kennell’s treating physician, and so his opinion
is entitled controlling weight unless “other medical assessments are supported by better or more
thorough medical evidence, or . . . [he] renders inconsistent opinions that undermine the
credibility of such opinions.” Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015) (citing Prosch
v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000)). Yet even in this situation, the ALJ must offer
“good reasons” for discounting the treating physician’s conclusions. 20 C.F.R. § 404.1527(d)(2).
The ALJ gave good reasons for discounting Dr. Oliver’s opinion. According to his
Medical Questionnaire, Dr. Oliver diagnosed Kennell with coronary artery disease, chronic
depression, and panic disorder. [Tr. 1589]. Based on this diagnosis, Dr. Oliver concluded that
Kennell’s heart condition would be exacerbated by extreme temperatures, her depression would
impede concentration, and her panic attacks were incapacitating such that she would miss work
four or more times per month. [Tr. 1589-90]. The ALJ cited to evidence on the record,

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however, indicating that Kennell’s heart condition, depression, and panic were all effectively
controlled by medication. See [Tr. 104, 112]. As observed above, “[i]f an impairment can be
controlled by treatment or medication, it cannot be considered disabling.” Stout v. Shalala, 988
F.2d 853, 855 (8th Cir. 1993).
Dr. Oliver also concluded that Kennell could lift less than ten pounds occasionally, less
than five pounds frequently, and that she could stand for two hours out of an eight-hour workday.
[Tr. 1589]. Kennell maintains that these limitations “are commensurate with a claimant who has
undergone a 2 level cervical fusion, reinjured her cervical spine, and suffers from coronary artery
disease.” [Doc. 11, p. 9]. Kennell does not provide medical support for this statement, let alone
explain whether Dr. Oliver, whose opinion does not mention Kennell’s cervical injury, based any
of his conclusions upon that impairment.
The ALJ did not err in discounting Dr. Oliver and Dr. Bennoch’s opinions.
C. Testimony of the Vocational Expert
Kennell remarks in her briefing that “[t]he [vocational expert] testified that Kennell’s
moderate impairment in 3 key areas of mental functioning would preclude competitive
employment” because she would miss four or more days of work per month. [Doc. 11, p.7]. Yet
despite this testimony, Kennell argues, the ALJ formulated her RFC without explaining how
Kennell could find a job in the national economy with this high absence rate.
The vocational expert’s testimony, however, was offered in response to questions posed
by Kennell’s attorney, who formulated hypotheticals based first on Boyd and Dr. Jackson’s
opinions that Kennell would miss four days of work monthly, and second based on definitions of
“moderate” that assumed an inability to complete a workday without interruption. Because the
ALJ discounted Boyd and Dr. Jackson’s opinions regarding the frequency of Kennell’s absences,

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he was not required to consider the attorney’s hypothetical question when formulating the RFC.
Goose v. Apfel, 238 F.3d 981, 985 (8th Cir. 2001) (the ALJ is only required to include
impairments substantially supported by the record as a whole). See also Haggard v. Apfel, 201
F.3d 591, 595 (8th Cir. 1999) (“A hypothetical question is sufficient if it sets forth the
impairments which are accepted as true by the ALJ.”) (internal quotation marks omitted).
Moreover, the remaining hypothetical questions posed by Kennell’s attorney provided a
definition of “moderate” that does not reflect Eighth Circuit precedent. See Roberson v. Astrue,
481 F.3d 1020, 1024–25 (8th Cir. 2007) (affirming an ALJ's decision that defined “moderate” as
more than a slight limitation, but one “not prevent[ing] an individual from functioning
satisfactorily”); Lacroix v. Barnhart, 465 F.3d 881, 888 (8th Cir. 2006) (a claimant with
moderate limitations “would be able to function satisfactorily”). The ALJ was not required to
rely on this definition or explain his reasons for discounting the testimony it produced.
D. Kennell’s Credibility
Kennell also challenges the ALJ’s credibility findings. In his decision, the ALJ found
that Kennell’s medical impairments could reasonably cause her alleged symptoms.

He

concluded, however, that Kennell is “not fully credible” regarding the claimed severity of these
symptoms. [Tr. 75].
A court generally will not disturb an ALJ’s credibility determinations.

Pearsall v.

Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001) (“The credibility of a claimant's subjective
testimony is primarily for the ALJ to decide, not the courts.”). As such, “[i]f an ALJ explicitly
discredits a claimant's testimony and gives a good reason for doing so, [a court] will normally
defer to that judgment” as well. Dixon v. Sullivan, 905 F.2d 237, 238 (8th Cir. 1990). Such a
determination must “recognize[] and consider[]” the factors set out in Polaski v. Heckler, 739

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F.2d 1320, 1321–22 (8th Cir. 1984), which include: (1) a claimant's daily activities; (2) the
duration, frequency, and intensity of the claimant's pain; (3) precipitating and aggravating
factors; (4) dosage, effectiveness, and side effects of medication; and (5) functional restrictions.
Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir. 2004).
The ALJ discussed several of these factors in discounting Kennell’s credibility. First, he
noted that Kennell’s daily activities are not consistent with her claims of disabling impairments.
See [Tr. 230-35] (Kennell reporting that she plays computer games, talks to neighbors, goes to
appointments, helps care for her son and dog, cooks, does laundry weekly, goes shopping, and
can drive a car). Second, the ALJ discussed Kennell’s medical treatment, and he remarked, as
discussed above, that the record reflects the effectiveness of this treatment in relieving Kennell’s
physical and mental symptoms.
Nevertheless, Kennell maintains that the ALJ’s credibility determination is flawed
because he found her mental impairments “somewhat situational,” [Tr. 76], yet he did not base
this conclusion on a medical opinion in the record, he did not question Kennell about changes in
her life stressors, and he therefore had no grounds to imply that the situational triggers of her
symptoms no longer existed.
Contrary to Kennell’s argument, substantial evidence on the record supports the ALJ’s
finding that her mental symptoms were, in significant part, a product of her financial and
domestic concerns. See [Tr. 371, 406, 421, 437, 445, 447, 454, 459, 463, 470, 1119]. At her
hearing, in response to questioning from the ALJ, Kennell stated that her stress was conditioned
on “what’s going on around [her].” [Tr. 106]. The ALJ later asked “what kind of situations
would [Kennell] have a panic attack in usually?” [Tr. 115]. Although he did not expressly ask
about changes in Kennell’s finances and living situation, the ALJ was not required to discuss

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these details in order to develop the record, especially considering his decision does not state that
Kennell’s situational triggers no longer existed. Rather, the ALJ merely notes that the situational
nature of Kennell’s symptoms is relevant when assessing the severity of her claims. Gates v.
Astrue, 627 F.3d 1080, 1082 (8th Cir. 2010) (finding depression not severe because it was, in
part, situational in nature).
Kennell also argues that the ALJ’s credibility determination “failed to properly consider
Kennell’s work history.” [Doc. 11, p. 10]. While the Eighth Circuit has found that a “claimant
with a good work record is entitled to substantial credibility,” Nunn v. Heckler, 732 F.2d 645,
648 (8th Cir. 1984), no case holds that this work history is dispositive if the Polaski factors
otherwise cut against the claimant’s credibility. See Lanning v. Heckler, 777 F.2d 1316, 1317-18
(8th Cir. 1985); Nunn, 732 F.2d at 648; Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. 1983)
(all concluding that the ALJ improperly discounted the credibility of the claimant, who had a
strong work history; the ALJ’s conclusion was unsupported and contradicted by the record). In
discounting Kennell’s credibility, as noted above, the ALJ considered several Polaski factors and
found that the claimed severity of her impairments was not supported by the record as a whole.
The Court cannot say the ALJ erred in reaching this conclusion.

III.

Conclusion
For the foregoing reasons, the Commissioner’s decision is affirmed.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: January 19, 2016
Jefferson City, Missouri
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