Giffrow v. Astrue

Filing 16

MEMORANDUM AND ORDER that the Commissioner's decision is affirmed; The appeal is denied; and Judgment in favor of the Defendant will be entered in a separate document. Ordered by Judge Laurie Smith Camp. (ADB, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CATHY SUE GIFFROW,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of the Social Security
Administration,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

CASE NO. 4:10CV3166

MEMORANDUM
AND ORDER

This matter is before the Court on the denial, initially and on reconsideration, of the
Plaintiff’s disability insurance (“disability”) benefits under the Social Security Act (“Act”), 42
U.S.C. §§ 401, et seq., and supplemental security income (“SSI”) benefits under Title XVI
of the Act, 42 U.S.C. §§ 1381, et seq.
PROCEDURAL BACKGROUND
The Plaintiff, Cathy Sue Giffrow, filed for disability and SSI benefits on September
6, 2006. (Tr. 184-93.) Giffrow alleges that she has been disabled since October 20, 2005.
(Tr. 209.) The Appeals Council denied Giffrow's request for review. (Tr. 1-5.) An
administrative hearing was held before Administrative Law Judge (“ALJ”) Jan E. Dutton on
July 22, 2009. (Tr. 22-66.) On August 3, 2009, the ALJ issued a decision concluding that
Giffrow is not “disabled” within the meaning of the Act and therefore is not eligible for either
disability or SSI benefits. (Tr. 9-21.) The ALJ determined that, although Giffrow suffers
from severe impairments and is unable to perform her past relevant work, she can perform
other jobs classified as “light work.” (Tr. 19-21.) On June 24, 2010, the Appeals Council
denied Giffrow’s request for review. (Tr. 1-3.) Giffrow now seeks judicial review of the
ALJ’s determination as the final decision of the Defendant, the Commissioner of the Social
Security Administration (“SSA”). (Filing No. 1.)

Giffrow claims that the ALJ’s decision is incorrect because the ALJ failed to: (1) give
controlling weight to the opinion of her treating physician, Benjamin O. Martin, M.D.; (2)
explain why weight was not given to Dr. Martin's opinion; and (3) properly apply the factors
set out in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
Upon careful review of the record, the parties’ briefs and the law, the Court
concludes that the ALJ’s decision denying benefits is supported by substantial evidence
on the record as a whole. Therefore, the Court affirms the Commissioner’s decision.
FACTUAL BACKGROUND
Documentary Evidence
Giffrow was born in 1966. (Tr. 184.) Although she alleges that her disability began
on October 20, 2005, she amended her alleged disability onset date to August 1, 2006. (Tr.
28, 91, 189.) Giffrow alleges disability due to a right knee injury, anxiety, diabetes with high
blood sugar levels, panic attacks, and hypertension. (Tr. 209, 235, 264.)
Giffrow was terminated from her last job as a convenience store assistant manager
on October 20, 2005. (Tr. 12, 31-32.) Giffrow lives with her husband and four of her five
children. (Tr. 31.)
In September 2005, Giffrow sought treatment in the emergency room for right knee
pain, and an X-ray showed early osteoarthritis. (Tr. 293, 301-03, 355, 393.) A magnetic
resonance imaging scan (“MRI”) showed mild narrowing in the right knee medial
compartment and suboptimal delineation of the ACL. (Tr. 287-88, 391-92.) In November
2005, surgeon Steven Stokesbary, M.D., performed a successful arthroscopic repair of the
right knee. (Tr. 304, 397-98.) During a pre-operative evaluation on November 17, 2005,

2

Benjamin Martin, M.D., diagnosed right knee pain, obesity, well-controlled hypertension, and
diabetes. (Tr. 291-92, 378-80.) Dr. Stokesbary’s consultation report showed appropriate
mood and affect. (Tr. 309-10.)
At followup appointments during December 2005 and January 2006, Dr. Stokesbary
recorded full motion of the right knee, “slow but steady progress,” and he noted that Giffrow
could perform activities as tolerated. (Tr. 308, 311.) The surgeon administered a steroid
injection in February 2006, and the following month recorded improvement and good motion
in the knee joint. (Tr. 305, 307.) At the last followup appointment in March 2006, Dr.
Stokesbary thought her lingering pain was due to patellar tendonitis for which he
recommended Ibuprofen and a patellar tendon strap. (Tr. 305.)
Later that year, in November 2006, Michael Baker, Ph.D., performed a consultative
psychological evaluation at the state's request. (Tr. 317-20.) Dr. Baker noted Giffrow had
never received treatment for a mental condition and had not seen her family physician for
approximately one year. (Tr. 317, 318.) Giffrow told Dr. Baker of her increased sadness
due to her mother's recent hospitalization. (Tr. 319.) The mental status examination
showed normal speech, no delusional thoughts, no obvious psychomotor disturbance, and
normal judgment, but also anxious mood and impaired insight. (Tr. 319-20.) Dr. Baker
diagnosed panic disorder with agoraphobia, and concluded Giffrow would benefit from
mental health treatment. (Tr. 320.) Dr. Baker recorded that despite the lack of treatment,
Giffrow, on a daily basis, takes care of her children, performed all chores at home such as
laundry, cooking, cleaning, and doing dishes. Also, Giffrow assists her husband by finding
his routes on the computer, speaks to her mother by telephone, and drives to her mother’s
home once every two weeks. (Tr. 318.) Dr. Baker concluded: Giffrow experiences
3

significant problems interacting with others; her ability to understand and remember is not
impaired; and her attention and concentration skills are adequate but affected by her
emotional state. (Tr. 320.)
In February 2007, Willis Wiseman, M.D., performed a consultative physical
examination and diagnosed degenerative joint disease of the right knee and obesity. (Tr.
338-40.) The physical examination showed a “fairly good range of motion” in both knees
and no tenderness, but Giffrow walked with a marked limp of the right leg. The neurological
examination showed full muscle strength and normal reflexes. (Tr. 339, 342.)
Also in February 2007, state agency medical consultant Glen Knosp, M.D.,
concluded, after a review of the full record, that Giffrow could perform light work. (Tr. 34452.) In May 2007, A.R. Hohensee, M.D., performed an independent review and affirmed
Dr. Knosp’s opinion. (Tr. 409.)
The following month, in March 2007, GIFFROW returned to Dr. Martin for a check
of her diabetes. Dr. Martin noted Giffrow’s diabetes had not been checked for a long period
of time, and he provided a new machine for home monitoring. He prescribed Cymbalta for
depression and recommended weight loss for the right knee. (Tr. 353.) At followup
appointments in April, May, and June 2007, Dr. Martin noted GIFFROW was in no acute
distress and doing “fairly well” in terms of her depression. (Tr. 353, 440-41.) Medications
for depression and hypertension were continued. (Tr. 353, 440-41.)
In May 2007, after a review of the record, state agency psychological consultant
Jennifer Bruning Brown, Ph.D., found that GIFFROW had mild restriction in her activities
of daily living and moderate difficulties in maintaining social functioning and in maintaining
concentration, persistence, or pace. (Tr. 330, 408.) Dr. Brown concluded that Giffrow’s
4

mental impairment, panics disorder with agoraphobia, was not of listing-level severity. (Tr.
326, 408.)
In August 2007, Giffrow’s children were temporarily removed from her home due to
An insect infestation. Because of this situation, from late August through November 1,
2007, Giffrow received counseling services. (Tr. 35-36, 410-25.) Also in August 2007, Dr.
Martin prescribed a different medication for depression, Lexapro. In September 2007, he
noted her diabetes was reasonably controlled despite Giffrow's noncompliance with her
treatment. She had run out of Lexapro. (Tr. 439.)
In a letter dated November 1, 2007, the therapist reported Giffrow had made
progress while regularly taking her medication for depression. The therapist recommended
that the case with the state department of health and human services be closed because
the home was now sanitary and Giffrow was caring for her mental health needs. (Tr. 41011.)
In December 2007, Giffrow saw Dr. Martin, who recorded she had run out of her
diabetes medication a few days earlier. Treatment notes showed Giffrow was “doing fairly
well,” did not have significant problems, her depression was better, and she showed “a lot
of anxiety.” (Tr. 438.) Her medications were continued. (Tr. 438.) On January 7, 2008, Dr.
Martin completed a mental impairment evaluation and a mental capacities evaluation. (Tr.
427-33.) He opined that Giffrow’s diabetes was moderately severe and “somewhat”
disabling, but also that it was usually fairly well controlled with medication. (Tr. 427, 429.)
Dr. Martin also opined that Giffrow’s depression was “very” disabling and that despite
medication and counseling, Giffrow could not handle daily activities. (Tr. 427.) He noted
that Giffrow reported an inability to concentrate, do housework, or care for her younger
5

children. (Tr. 429.) Dr. Martin opined that any contact with people would be more disabling
for Giffrow. (Tr. 427.) He concluded Giffrow could work fewer than three hours per day and
no more than three days per week. (Tr. 432.)
In July 2008, Dr. Martin reported that although Giffrow was doing fairly well, she had
again run out of medication. He suspected that noncompliance with medication was part
of her difficulty. (Tr. 438.)
Also in July 2008, David Hill, Ph.D., a state agency psychological consultant, opined
that Dr. Martin’s January 2008 opinion and Dr. Baker’s 2006 evaluation supported a finding
of disability based on listing 12.06. (Tr. 442-455.) However, Dr. Hill noted that Dr. Martin's
progress notes had a gap of approximately eighteen months. (Tr. 454.) Dr. Hill issued an
addendum a month later, in August 2008, amending certain dates in his prior report. (Tr.
456.)
Also in August 2008, Dr. Judith Vogelsang, a state agency medical consultant,
concluded Giffrow could physically perform light work during which she would be limited to,
among other things, standing and walking two hours in an eight-hour work day with regular
breaks and sitting for six hours with position changes and regular breaks. (Tr. 457-59.)
Four months later, in December 2008, Dr. Martin again provided Giffrow with
samples of her medications.1 (Tr. 465.) In April 2009, Dr. Martin continued Giffrow’s
medication for depression and anxiety, again providing samples. (Tr. 465-66.) His April 20,
2009, treatment notes showed Giffrow experienced stress and anxiety “due to the

1

Dr. Martin repeatedly stated in Giffrow's medical records that she said she could
not afford medication and she often ran out of her medication before her office visits.
He often gave her samples. On April 20, 2009, he notes that she “declines secondary
to monetary reasons.” (Tr. 466.)
6

government not giving her social security.” (Tr. 466.) Treatment notes from May 2009
showed improvement in blood sugar levels and good control of Giffrow’s other physical
conditions. The only mention was made of depression or anxiety during May 2009 was
reported stress during one weekend. (Tr. 462, 470.)
Plaintiff's Testimony
At the administrative hearing, Giffrow testified that she was forty-two years old,
graduated from high school, and lives with her husband and four of her five children. The
fifth child lives in a basement apartment below Giffrow's home. (Tr. 30-31.) Her husband
is a truck driver and is away from home between one to two months at a time. (Tr. 31, 35.)
Giffrow testified that she has worked as a mail carrier, on a production line, and as a home
daycare provider. (Tr. 31.) Between 1995 and 1999 she did not work because the family
was able to live on her husband's income. She stated she was terminated from her last job
as assistant manager at a convenience store in 2005. She suffered an injury to her right
knee at her last job. She did not receive worker's compensation due to her injury or
unemployment insurance when she was terminated. (Tr. 32.)
After her termination Giffrow applied for disability benefits and did not seek another
job. She testified that she could not work because she had a hard time leaving the house
and being around people, and because her high blood sugar levels caused dizzy spells that
would not allow her to drive. (Tr. 33, 37.) She explained that these symptoms started, but
were not “real bad” until she stopped working. (Tr. 33.)
Giffrow's daily activities include doing laundry, making her children's meals,
housecleaning, and helping her husband for one or two hours per day find routes on their
computer. (Tr. 38.) She also goes to the store, occasionally visits her mother and helps
7

her with gardening. (Tr. 38, 46.) She has a driver's license, but she said she rarely drives
due to dizzy spells. (Tr. 34.)
Giffrow received counseling, paid for by Medicaid and required by the state, between
July and October 2007, when her children were removed from her home due to a cockroach
infestation. (Tr. 35, 41.) She said she stopped counseling when her Medicaid ended
because she has no health insurance and could not afford to continue. (Tr. 35.)
Giffrow weighed 240 pounds at the time of the hearing, and she noted she had lost
200 pounds during the years before the hearing. She testified she was able to walk about
two blocks. (Tr. 37.)
Giffrow testified she was taking the following medications at the time of the hearing:
insulin; Metformin, also for diabetes; Diovan, for high blood pressure; and Lexapro, for
depression and anxiety. She said she experiences memory loss as a side effect to her
medication. (Tr. 39.) Giffrow receives her diabetes medication and treatment through a
grant program, and her depression medication through samples from her doctor. She did
not explain how she receives her high blood pressure medication. (Tr. 40.)
Giffrow described her “anxiety” as panic attacks and drastic mood swings. She said
that “anything” can bring it on “anytime.” (Tr. 42.) She described one occasion during which
she became so anxious she had chest pains. (Tr. 43.) She testified that sometimes the
attacks cause her to not be able to breathe or feel nauseous. She said she experiences
anxiety attacks at least two or three, and no more than five or six, times weekly. (Tr. 44.)
Giffrow testified that she needs to elevate her leg for about thirty minutes at least
three or four times each day to relieve pain, and she no longer goes upstairs in her home
because her knee gives out. (Tr. 44-45.) She testified that she can stand for thirty minutes
8

and sit for an hour. (Tr. 44.) She said she has trouble lifting, but she can lift forty pounds
occasionally and between ten and twenty pounds frequently. (Tr. 45.) Dr. Martin had not
prescribed any medications for knee pain, and she takes Ibuprofen. (Tr. 44.)
Medical Expert's Testimony
Thomas England, Ph.D., testified at the hearing as a medical expert. Dr. England
was allowed to ask Giffrow questions. In response to why she did not receive treatment for
her mental health issues between 2005 and 2007, she said she was afraid to leave her
house. However, she explained that she “had to” leave home to seek treatment for her
knee through March of 2006 in order for her employer to pay for her medical care. (Tr. 48.)
Dr. England also asked Giffrow whether counseling had any effect on her, and she
answered that she noted slow improvement during the time she received counseling. (Tr.
48-49.)
Dr. England stated that depression had been a factor for Giffrow after March of 2007,
but he noted that Dr. Martin had not made “further specification” and in fact characterized
Giffrow's issue as anxiety more than depression. Yet, Dr. England noted that Dr. Martin
prescribed an antidepressant and no medications for anxiety. He noted that part of the
issue with prescribing medications for Giffrow might be cost. Dr. England acknowledged
the counselor's summary that Giffrow had made “considerable progress” when she was in
counseling and her medications were not being changed. (Tr. 50.)
Dr. England narrowed the issues presented to two potential diagnostic categories,
or listings: 12.04 (depression); and 12.06 (panic disorder with agoraphobia). (Tr. 49, 50.)
However, Dr. England concluded that, based on the medical records and testimony,
Giffrow’s mental impairment did not meet the criteria of any listing, and that with additional
9

treatment, her condition would likely “resolve fairly well.” (Tr. 51.) He believes most of what
Giffrow describes as panic or anxiety attacks are due to uncontrolled depression. He
opined that Giffrow currently had moderate difficulties in social functioning and, in the home,
mild limitations in activities of daily living and in maintaining concentration, persistence, and
pace. He opined she would likely have somewhat greater limitations outside the home (Tr.
52-53.) Dr. England suggested that with adequate treatment Giffrow would be capable of
sustaining routine, repetitive, unskilled work, and he would expect improved work ability with
further treatment. He concluded that, at the time of the hearing, Giffrow could perform
relatively low-stress work that required only minimal contact with the public. (Tr. 53.) During
discussion with the ALJ about the assessments of the state agency psychological
consultants and Dr. Martin, Dr. England noted that consultative examiner Dr. Baker2 had
concluded Giffrow had reasonably good concentration and attention, despite not receiving
any treatment. (Tr. 53-54.) Dr. England further observed that Giffrow’s counselor had
noted considerable improvement during therapy, and that Dr. Martin’s progress notes dated
December 31, 2007, showed Giffrow was functioning quite well. (Tr. 54.) Dr. England also
outlined that Dr. Martin’s treatment records showed diabetes as the primary concern, and
noted Dr. Martin had made no referrals for counseling or psychiatric evaluation or
assessment, as would be expected if psychological symptoms were not being adequately
controlled. (Tr. 55.)

2

The transcript erroneously refers to Dr. “Blake.” (Tr. 53.)
10

Vocational Expert's Testimony
A vocational expert, Michael McKeeman,3 testified in response to a hypothetical
question posed by the ALJ that assumed an individual of Giffrow’s age, education, and work
history. (Tr. 58-60.) The individual could perform a reduced range of light work that was
routine, repetitive, and unskilled, and did not require more than occasional social interaction.
(Tr. 59-60.) The vocational expert testified that such an individual could perform both light
and sedentary unskilled jobs, including bookkeeper, office clerk, credit authorizing checker,
maid/housekeeper, food preparer, and packager. All of the named positions are available
locally and nationally in significant numbers. (Tr. 60-62.) However, if Giffrow's testimony
was considered as credible, she would not be able to do any of the listed unskilled jobs.
(Tr. 63.)
THE ALJ’S DECISION
After following the sequential evaluation process set out in 20 C.F.R. §§ 404.1520
and 416.920,4 the ALJ concluded that Giffrow was not disabled in either the disability or the
SSI context. (Tr. 21.) Specifically, at step one the ALJ found that Giffrow has not
performed substantial gainful work activity since her onset date of August 1, 2006. At step
two, the ALJ found the following medically determinable impairments: degenerative joint
disease of the right knee, status post arthroscopic surgery performed in November 2005;
diabetes mellitus; obesity; depression; and anxiety. At step three, the ALJ found that

3

McKeeman's curriculum vitae appears in the record. (Tr. 142-46.)

4

Section 404.1520 relates to disability benefits, and identical § 416.920 relates to
SSI benefits. For simplicity, in making further references to the social security
regulations the Court will only refer to disability regulations.
11

Giffrow's medically determinable impairments, either singly or collectively, did not meet
Appendix 1 to Subpart P of the Social Security Administration's Regulations No. 4, known
as the “listings.” (Tr. 12.) The ALJ determined that Giffrow had the residual functional
capacity (“RFC”) to: lift and carry up to twenty pounds occasionally and ten pounds
frequently; stand, sit and walk for six hours in an eight-hour workday; occasionally perform
postural activities such as climbing, balancing, stooping, kneeling, crouching, and crawling.
He also determined: she cannot use pedals or foot controls with her right leg or work on
ladders, ropes, or scaffolds; and due to her mental limitations she is limited to routine,
repetitive, unskilled work that requires no more than occasional social interaction with
coworkers, the general public, or supervisors. (Tr. 13.) At step four, the ALJ determined
that Giffrow did not possess the RFC to perform her past relevant work as a
cashier/checker, convenience store manager, school cafeteria cook, mail carrier, or
production helper. (Tr. 19.) The ALJ concluded that Giffrow could perform light and
sedentary unskilled jobs such as bookkeeper, office clerk, credit authorizing checker,
maid/housekeeper, food preparer, and packager. In summary, the ALJ found that Giffrow
was not disabled for purposes of disability or SSI. (Tr. 20.) The ALJ found that Giffrow met
the insured status requirements of the SSA through December 31, 2010. (Tr. 11.)
STANDARD OF REVIEW
In reviewing a decision to deny disability benefits, a district court does not reweigh
evidence or the credibility of witnesses or revisit issues de novo. Rather, the district court's
role under 42 U.S.C. § 405(g) is limited to determining whether substantial evidence in the
record as a whole supports the Commissioner's decision and, if so, to affirming that
decision. Howe v. Astrue, 499 F.3d 835, 839 (8th Cir. 2007).
12

“‘Substantial evidence is less than a preponderance, but enough that a reasonable
mind might accept it as adequate to support a decision.’” Slusser v. Astrue, 557 F.3d 923,
925 (8th Cir. 2009) (quoting Gonzales v. Barnhart, 4654 F.3d 890, 894 (8th Cir. 2006)). The
Court must consider evidence that both detracts from, as well as supports, the
Commissioner's decision. Carlson v. Astrue, 604 F.3d 589, 592 (8th Cir. 2010). As long as
substantial evidence supports the Commissioner's decision, that decision may not be
reversed merely because substantial evidence would also support a different conclusion or
because a district court would decide the case differently. Fredrickson v. Barnhart, 359
F.3d 972, 976 (8th Cir. 2004).
DISCUSSION
I.

Treating Physician's Opinion
Giffrow argues that the ALJ erred by not accepting the opinions of her treating family

practitioner, Benjamin O. Martin, M.D., as controlling. Alternatively, Giffrow argues that Dr.
Martin's opinions should have been analyzed and given an appropriate amount of weight.5
Giffrow adds that the ALJ did not follow the requirements of Social Security Ruling (“SSR”)
96-2p and in rejecting Dr. Martin's opinions regarding mental limitations only stated that his
opinions were unsupported by his treatment notes, which did not address the “listing-level
severity of her mental symptoms.” (Filing No. 10, at 11.) Giffrow states that the ALJ failed
to include any discussion as to whether Dr. Martin's opinions are consistent with substantial
evidence in the record.

5

In her brief, Giffrow's attorney cites to 20 C.F.R. § 416.927, which applies to SSI
determinations. The companion regulation that applies to disability determinations, 20
C.F.R. § 404.1527, is considered in the discussion of this issue.
13

20 C.F.R. § 404.1527(d)(2) provides that a treating physician’s opinion is given
controlling weight if “a treating source's opinion on the issue(s) of the nature and severity
of [the claimant’s] impairment(s) is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence
in [the claimant’s] case record.”
Section 404.1527(d)(2) states that in evaluating a treating source’s opinion, the
following factors are considered: length and frequency of treatment by the physician; the
nature and extent of the treatment relationship; the degree of medical evidence supporting
the opinion; the consistency of the opinion with the record as a whole; whether the treating
source is a specialist in the area in question; and other factors brought to attention. 20
C.F.R. § 404.1527(d)(2)(i) & (ii), (d)(3)-(6).
Social Security Ruling 96-2p provides:
1. A case cannot be decided in reliance on a medical opinion without some
reasonable support for the opinion.
2. Controlling weight may be given only in appropriate circumstances to
medical opinions, i.e., opinions on the issue(s) of the nature and severity of
an individual's impairment(s), from treating sources.
3. Controlling weight may not be given to a treating source's medical opinion
unless the opinion is well- supported by medically acceptable clinical and
laboratory diagnostic techniques.
4. Even if a treating source's medical opinion is well- supported, controlling
weight may not be given to the opinion unless it also is “not inconsistent” with
the other substantial evidence in the case record.
5. The judgment whether a treating source's medical opinion is well-supported
and not inconsistent with the other substantial evidence in the case record
requires an understanding of the clinical signs and laboratory findings and
what they signify.

14

6. If a treating source's medical opinion is well-supported and not inconsistent
with the other substantial evidence in the case record, it must be given
controlling weight; i.e., it must be adopted.
7. A finding that a treating source's medical opinion is not entitled to
controlling weight does not mean that the opinion is rejected. It may still be
entitled to deference and be adopted by the adjudicator.
SSR 96-2p, 1996 WL 374188, at *1 (Soc. Sec. Admin. July 2, 1996).
The ALJ’s rejection of Dr. Martin's statements regarding Giffrow's alleged disability
is based on, and is supported by, numerous parts of the record. Giffrow primarily sought
treatment from Dr. Martin, a family practitioner. The record is replete with evidence
inconsistent with Dr. Martin's opinions, as noted in the factual summary of the record above.
For example:
•

Giffrow performs basic chores such as her own personal care, daily care of her four
children, laundry, cooking, house cleaning, doing dishes, assisting her husband by
using a computer a couple of hours per day, grocery shopping, and occasional
gardening;

•

Giffrow's arthroscopic surgery on her knee was successful, her range of motion and
muscle strength were good, and for any pain her orthopedic surgeon recommended
Ibuprofen and a patellar tendon strap;

•

to her credit, Giffrow has lost a very substantial amount of weight, at the time of the
hearing she continued to lose weight, and weight loss should help her health issues;

•

Giffrow's diabetes is well controlled with proper use of her medication;

•

while Dr. Martin stated Giffrow was disabled due to depression and anxiety, he
primarily treated her for physical ailments, rarely mentioned depression in his
treatment notes though he prescribed an antidepressant, did not prescribe an anti15

anxiety medication, and did not refer her to another care giver for mental health
treatment;
•

Dr. Martin's January 2008 opinion differed significantly from his treatment notes;

•

Dr. Martin's opinions were generally based on Giffrow's subjective complaints;

•

the record includes other medical opinions, for example those of Drs. Baker and
England, which are more consistent with the record;

•

when Giffrow received psychological counseling and took her psychotropic
medications, she made progress with her mental health condition; and

•

Dr. Martin often noted that Giffrow was noncompliant with treatment insofar as she
let her medications lapse.
For these reasons, the Court concludes that the ALJ was correct in not giving

controlling weight to Dr. Martin's opinion as Giffrow's treating physician.

The ALJ

considered the necessary factors in determining how much weight to give to his opinion.
Giffrow's argument that the ALJ did not adequately discuss Dr. Martin's opinions is
misplaced. His opinions, and why they were given little weight, were considered in the
ALJ's four-page discussion of the medical evidence.
II.

Polaski
Giffrow argues that the ALJ failed to consider the factors set out in Polaski relating

to: her daily activities; the duration, frequency and intensity of pain; dosage, effectiveness,
and side effects of medication; precipitating and aggravating factors; and functional
restrictions when evaluating her subjective complaints, or related inconsistencies.

16

There is no requirement that an ALJ cite the Polaski decision or discuss every
Polaski factor. It is sufficient if Polaski factors are referenced and considered and that an
ALJ's credibility findings are adequately explained and supported. Lowe v. Apfel, 226 F.3d
969, 972 (8th Cir. 2000).
In this case, the ALJ cited to the applicable Social Security regulations. Judge
Dutton listed and discussed the five steps of the required sequential evaluation process for
determining whether an individual is disabled. She then set out his detailed findings of fact
and conclusions of law in which she considered each of those required steps. In doing so
Judge Dutton made detailed references to the medical record in discussing the regulations,
inconsistencies with Giffrow's subjective complaints of pain and Dr. Martin's opinions. The
Polaski factors were considered.
CONCLUSION
For the reasons discussed, the Court concludes that the Commissioner's decision
is supported by substantial evidence on the record as a whole and is affirmed.
IT IS ORDERED:
1.

The Commissioner’s decision is affirmed;

2.

The appeal is denied; and

3.

Judgment in favor of the Defendant will be entered in a separate document.

DATED this 5th of May, 2011.
BY THE COURT:

s/Laurie Smith Camp
United States District Judge

17