Cunningham v. Astrue

Filing 22

MEMORANDUM AND ORDER - The Commissioner's decision is affirmed. Cunningham's complaint is dismissed. The parties shall bear their own costs. A separate judgment will be entered. Ordered by Judge John M. Gerrard. (GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
AMANDA CUNNINGHAM,
Plaintiff,

4:12-CV-3093

vs.
MEMORANDUM AND ORDER
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.
This matter is before the Court on the denial, initially and upon
reconsideration, of plaintiff Amanda Cunningham's disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. The
Court has considered the parties' filings and the administrative record, and
affirms the Commissioner's decision to deny benefits.
BACKGROUND
Cunningham applied for Social Security disability benefits in
September 2008.1 T307. Her claim was denied initially and on
reconsideration, and she requested a hearing before an administrative law
judge (ALJ).2 T163-187, 190-91.
To determine whether a claimant is entitled to disability benefits, the
ALJ performs a five-step sequential analysis. 20 C.F.R. § 404.1520(a)(4). At
step one, the claimant has the burden to establish that she has not engaged
in substantial gainful activity since her alleged disability onset date. Id.;
Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006). If the claimant has
engaged in substantial gainful activity, she will be found not to be disabled;
otherwise, at step two, she has the burden to prove she has a medically
She also applied for Supplemental Security Income benefits, but they do not appear to be
at issue in this case. See T44, 153, 175, 307.
1

There are actually three claims at issue, based on Cunningham's individual eligibility for
benefits and for child disability benefits on her mother's and father's earning accounts. See
T20, 163-174. Although Cunningham's brief refers to her father's earning records, the
decision actually attached to her complaint was based on her individual eligibility. See
filing 15 at 1, filing 1 at 7-15. But the Court does not need to sort this out, because all three
ALJ decisions were essentially identical. Compare T20-28, 32-40, 44-53.
2

determinable physical or mental impairment or combination of impairments
that significantly limits her physical or mental ability to perform basic work
activities. Id. At step three, if the claimant shows that her impairment meets
or equals a presumptively disabling impairment listed in the regulations, she
is automatically found disabled and is entitled to benefits. Id. Otherwise, the
analysis proceeds to step four, but first, the ALJ must determine the
claimant's residual functional capacity (RFC), which is used at steps four and
five. 20 C.F.R. § 404.1520(a)(4). At step four, the claimant has the burden to
prove she lacks the RFC to perform her past relevant work. Id.; Gonzales, 465
F.3d at 894. If the claimant can still do her past relevant work, she will be
found not to be disabled; otherwise, at step five, the burden shifts to the
Commissioner to prove, considering the claimant's RFC, age, education, and
work experience, that there are other jobs in the national economy the
claimant can perform. Id.
In this case, at step one, the ALJ found that Cunningham had not
engaged in substantial gainful activity since her alleged disability onset date
of October 1, 2007. T46. At step two, the ALJ found that Cunningham has the
following severe impairments: history of fetal alcohol syndrome with
attention-deficit hyperactivity disorder, post-traumatic stress disorder,
bipolar disorder, and alcohol abuse. T46. But at step three, the ALJ found
that Cunningham did not have an impairment or combination of
impairments that met or equaled a presumptively disabling impairment. T47.
The ALJ found that Cunningham had the RFC to perform a full range
of work, but was limited to performing simple, routine, repetitive work which
involves only one or two steps and does not require extended attention or
concentration, goal setting or changes on the job, and with only occasional
social contact on the job. T48. At step four, the ALJ found that Cunningham
had no past relevant work: her past employment was at part-time jobs where
her pay was not substantial. T51. And at step five, the ALJ found that
Cunningham could perform jobs that exist in significant numbers in the
national economy: for instance, laundry worker, cleaner, and hand packer.
T51-52. So, the ALJ found that Cunningham was not disabled. T52-53.
The Appeals Council of the Social Security Administration denied
Cunningham's request for review. T1-5. Cunningham's complaint seeks
review of the ALJ's decision as the final decision of the Commissioner under
sentence four of 42 U.S.C. § 405(g). Filing 1.
ANALYSIS
The Court reviews a denial of benefits by the Commissioner to
determine whether the denial is supported by substantial evidence on the
record as a whole. Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011) (citing
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42 U.S.C. § 405(g)). Substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to support the
conclusion. Id. The Court must consider evidence that both supports and
detracts from the ALJ's decision, and will not reverse an administrative
decision simply because some evidence may support the opposite conclusion.
Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011). If, after reviewing the
record, the Court finds it is possible to draw two inconsistent positions from
the evidence and one of those positions represents the ALJ's findings, the
Court must affirm the ALJ's decision. Id. The Court reviews for substance
over form: an arguable deficiency in opinion-writing technique does not
require the Court to set aside an administrative finding when that deficiency
had no bearing on the outcome. Buckner v. Astrue, 646 F.3d 549, 559 (8th Cir.
2011). And the Court defers to the ALJ's determinations regarding the
credibility of testimony, so long as they are supported by good reasons and
substantial evidence. Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011).
MENTAL RETARDATION
The first issue Cunningham raises on appeal is based on a psychiatric
evaluation performed on October 29, 2008, by Mona Pothuloori, M.D., after
Cunningham was referred to Pothuloori for evaluation by her treating
counselor. T551. Pothuloori observed that Cunningham appeared to be
"functioning in the mildly mentally handicapped range." T552. Several
months later, Lee Branham, Ph.D., completed a psychiatric review worksheet
for Cunningham on which he found that an RFC assessment was necessary,
based on listings for organic mental disorders, affective disorders, anxietyrelated disorders, and substance addiction disorders. T591. But he did not
check the box for listing 12.05, "Mental Retardation," noting in the margin:
New [Medical Evidence of Record] includes [outpatient] notes for
Dr. Pothuloori, who suggests mild [mental retardation], per her
[Mental Status Evaluation]. If this were an accurate estimate, it
would meet 12.05C,3 but we have prior testing showing IQ's in
the high part of the borderline range. [Global Assessment of
Functioning]4 of 55 is consistent with past estimates, and I
suggest the previous review is a correct assessment.
The 12.05C listing is met when the claimant has "[a] valid verbal, performance, or full
scale IQ of 60 through 70 and a physical or other mental impairment imposing an
additional and significant work-related limitation of function." 20 C.F.R. Part 404, Subpart
P, Appx. 1, § 12.05C.
3

A Global Assessment of Functioning (GAF) score represents "the clinician's judgment of
the individual's overall level of functioning," not including impairments due to physical or
4

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T591. In other words, Branham considered whether Pothuloori's impression
supported a finding of a listing that might be presumptively disabling if
sufficiently severe—mental retardation—but found that the listing was
unsupported by the evidence.
Cunningham's complaint is that the ALJ did not discuss Pothuloori's
observation with the clinical psychologist who testified at the administrative
hearing, Thomas England, Ph.D., or discuss Pothuloori's observation in the
administrative decision. Filing 15 at 5. So, Cunningham contends, "[w]e have
no way of knowing how or if the treating psychologist's [sic] opinions are
analyzed, or what weight they are given. If the ALJ chose to disregard the
opinions of treating psychologist [sic] Dr. Pothuloori she should have at
[least] explained the reason." Filing 15 at 5.
There are a number of problems with Cunningham's argument. First,
there is nothing in the record showing that Pothuloori was a "treating"
psychiatrist. A treating source is a claimant's own physician, psychologist, or
other acceptable medical source who provides or has provided the claimant
with medical treatment or evaluation and who has, or has had, an ongoing
treatment relationship with the claimant. 20 C.F.R. § 404.1502. A treating
source's opinion on the nature and severity of an impairment will be given
controlling weight when well supported by medically acceptable clinical and
laboratory diagnostic techniques and not inconsistent with the other
substantial evidence in the case record. 20 C.F.R. § 404.1527(c)(2). But a
claimant only has an ongoing treatment relationship with an acceptable
medical source when the medical evidence establishes that the claimant sees,
or has seen, the source "with a frequency consistent with accepted medical
practice for the type of treatment and/or evaluation required for [the
claimant's] medical condition(s)." 20 C.F.R. § 404.1502. And here, there are
only records of Pothuloori's initial evaluation and a follow-up appointment 3
weeks later. T549-53. The record does not establish that Pothuloori was a
treating source.
Second, Pothuloori's own notes are inconsistent with Cunningham's
argument. Pothuloori's initial diagnostic impression listed, among other
things, several Axis I conditions and "Mild Mental Retardation" as a possible
Axis II condition. T553. But after the follow-up appointment, while the Axis I
conditions were largely unchanged, Pothuloori wrote "None" next to the Axis
II diagnosis. T550. In other words, the medical records suggest that
environmental limitations. See American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders 32 (4th ed. 2000). A GAF score of 51 to 60 indicates moderate
symptoms or moderate difficulty in social, occupational, or school functioning. Id. at 34.

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Pothuloori backed away from her initial impression of mild mental
retardation after Cunningham's follow-up visit. And even if Pothuloori was a
treating source, and had opined that Cunningham was mildly mentally
retarded, the ALJ would have been justified in finding Branham's rejection of
that suggestion to be more credible. Branham's opinion was based on more
comprehensive objective testing than was available to Pothuloori, who based
her assessment simply on her observations at the initial evaluation. See
Cantrell v. Apfel, 231 F.3d 1104, 1107 (8th Cir. 2000).
Nor is there any merit to Cunningham's argument that the ALJ should
have examined England about Pothuloori's initial impression, or discussed it
in her decision. Pothuloori had an initial diagnostic impression that did not
survive to the diagnosis Pothuloori made 3 weeks later, and that Branham
found to be inconsistent with the objective evidence in the medical records.
Cunningham directs the Court to no authority dictating that the ALJ was
required to treat such an observation as critically significant. Nor was it
necessary for the ALJ to question England about it: England noted
Pothuloori's observation during his hearing testimony, and discussed it
specifically in concluding that given all the evidence, Cunningham did not
meet the criteria for the 12.05C listing. T117-19, 126-27. The ALJ relied on
England's opinion, and IQ tests reflected in the record, in concluding that the
12.05C listing was not met. T50-51. While the ALJ did not mention
Pothuloori's name, the ALJ's decision reflects a full consideration of the
available evidence and a reasoned determination based on that evidence. No
more was required.
WEIGHT TO ENGLAND'S TESTIMONY
Second, Cunningham asserts that the ALJ did not give proper weight
to England's testimony. When asked about how Cunningham's limitations
might manifest in her employment, England opined that "in situations where
either she had personal stresses outside the work situation that were
significant or if she had relationship issues in the work context that were
problematic in some way, she may well be prone to either avoiding those
situations or those individuals and possibly occasionally not attending the
work setting." T126. But, "with involvement in treatment and [proper]
medication[,]" England said he "wouldn't expect that more than perhaps once
or twice a month to be rising to a problem level that would involve
significantly impaired work performance, but it could still occur." T126.
Based on that testimony, the vocational expert who testified at the hearing
said that Cunningham would have difficulty maintaining work if she missed
work twice a month. T130-31. But, one time a month would be within
acceptable limits. T131.
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Cunningham's complaint is that the ALJ failed to question England on
whether she would miss 1 day a month or 2, and failed to discuss that matter
in the administrative decision. As best the Court can tell, Cunningham's
argument is directed at the ALJ's determination of Cunningham's RFC—the
RFC assesses the claimant's ability to meet the physical, mental, sensory,
and other requirements of work, 20 C.F.R. § 404.1545(a)(4), and showing up
for work is one of those requirements. So it is important to remember that
the burden of persuasion to demonstrate RFC is on the claimant. Perks v.
Astrue, 687 F.3d 1086, 1092 (8th Cir. 2012).
The Court notes, initially, that England did not actually say that
Cunningham would miss 1 or 2 days of work a month. England was asked
generally about how Cunningham's psychological conditions would manifest
in her employment, and he said that if she had personal stresses or
relationship issues, "she may well be prone to either avoiding those situations
or those individuals and possibly occasionally not attending the work
setting." T126. Those things, he said, might happen "once or twice a month"
to the point that it would impair her work performance. T126. In other words,
what England actually said was that Cunningham's work performance would
be impaired once or twice a month, and one of the ways in which her
performance could be impaired might be that she would miss work. T126.
That is not the same as saying that she would miss work once or twice a
month. So, to the extent that Cunningham's argument depends on the high
end of England's projection, that argument is weakened by a closer
examination of his actual testimony.
Beyond that, the Court finds that the ALJ's decision was supported by
substantial evidence. It is true that the ALJ has a duty to fully and fairly
develop the evidentiary record, independent of the claimant's burden to press
her case. Byes v. Astrue, 687 F.3d 913, 915-16 (8th Cir. 2012). Failing to
develop the record is reversible error when it does not contain enough
evidence to determine the impact of a claimant's impairment on her ability to
work. Id. at 916. But while the ALJ was required to develop the record fully,
she was not required to provide an in-depth analysis on each piece of
evidence. Renstrom v. Astrue, 680 F.3d 1057, 1065 (8th Cir. 2012). Nor, in the
Court's view, was she required to cross-examine England and pin him down
to whether Cunningham might be expected to miss 1 or 2 days of work a
month. The ALJ instead found that Cunningham's RFC would limit her to
jobs requiring only occasional social contact. T48. When England's testimony
is read in context, it supports the ALJ's determination of Cunningham's RFC.
It was Cunningham's burden to demonstrate otherwise. Perks, 687 F.3d at
1092. While it might have been possible to conclude from the evidence that
Cunningham would miss too much work to remain employable, it is at least
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as possible to conclude otherwise—and given that, the Court is in no position
to dispute the ALJ's conclusion. See Perkins, 648 F.3d at 897.
CUNNINGHAM'S CREDIBILITY
Finally, Cunningham complains about the ALJ's finding that
Cunningham was only partly credible. The ALJ found, as is common in these
cases, that "medically determinable impairments could reasonably be
expected to cause at least some of the symptoms" that Cunningham alleged,
but Cunningham's "statements concerning the intensity, persistence and
limiting effects of these symptoms are not fully credible." T49. The ALJ did
note, however, that when asked whether she was able to work, Cunningham
"answered that it would be difficult for her but she did not declare that she
was not able to do so. Thus," the ALJ said, "even if everything [Cunningham]
said was true and correct, it would not establish that her medical conditions
completely prohibit her or limit her functioning to such an extent that she
cannot perform any substantial gainful activity." T50.
Cunningham points out that she has no past relevant work, suggesting
that she has tried and failed to work in the past. And Cunningham argues
that the real question is not whether she can "work," but whether she can
perform substantial gainful activity and maintain employment. Filing 15 at
7. But Cunningham misunderstands what the ALJ was saying. The ALJ
clearly concluded that Cunningham's testimony about her symptoms was not
entirely credible. But the ALJ also noted that even if Cunningham was
completely truthful, her testimony would not establish an inability to work.
That observation was entirely consistent with Cunningham's testimony, and
it was appropriate.
Cunningham also contends that the ALJ made too much out of
inconsistencies between Cunningham's hearing testimony and her answers to
interrogatories. Filing 15 at 8. The ALJ noted that in her answers to
interrogatories, Cunningham failed to mention lack of concentration or
memory as impediments to work. T50. But she testified to that effect at the
hearing. T49. Cunningham argues, in essence, that her failure to mention a
lack of memory on the interrogatories is actually evidence of a lack of
memory, because she forgot to mention memory problems. Filing 15 at 8.
Cunningham also complains about the ALJ's observation that Cunningham
had applied for jobs, contending that there is no basis for "the idea that if
someone pursues employment they are able to work." Filing 15 at 8.
Cunningham again misunderstands the ALJ's point. The ALJ was
plainly entitled to conclude that Cunningham's hearing testimony was less
credible because she failed to mention some of her symptoms in
interrogatories. Cunningham was free to explain the omission to the ALJ, but
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the ALJ was not required to believe her. And while looking for work does not
prove a claimant can work, it does tend to show that the claimant, at least,
believes she might be able to work—and that, in turn, reflects on the
claimant's hearing testimony that working would be difficult for her. Acts
which are inconsistent with a claimant's assertion of disability reflect
negatively upon that claimant's credibility. Renstrom, 680 F.3d at 1067.
And more importantly, the Court defers to the ALJ's credibility
findings where the ALJ expressly discredits a claimant's testimony and gives
a good reason for doing so. See id. Questions of credibility are for the ALJ in
the first instance. Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008). In this
case, while there might have been reasons to credit Cunningham's testimony,
there were also reasons not to credit it fully. The ALJ identified those reasons
and explained them, and the Court defers to that determination.
In sum, the Court finds no merit to Cunningham's claim that the ALJ
committed reversible error.
IT IS ORDERED:
1.

The Commissioner’s decision is affirmed.

2.

Cunningham's complaint is dismissed.

3.

The parties shall bear their own costs.

4.

A separate judgment will be entered.

Dated this 29th day of April, 2013.
BY THE COURT:

John M. Gerrard
United States District Judge

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