Roland v. Social Security Administration
MEMORANDUM AND ORDER- 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 Chief Judge Laurie Smith Camp. (MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CAROL MAE ROLAND,
CASE NO. 4:13CV3085
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration;
Carol Mae Roland filed a complaint on April 19, 2013, against the Commissioner
of the Social Security Administration. (ECF No. 1.) Roland seeks a review of the
Commissioner’s decision to deny her application for disability insurance benefits under
Title II and Title XVI of the Social Security Act (the Act), 42 U.S.C. §§ 401 et seq., 1381
et seq. The defendant has responded to Roland’s complaint by filing an answer and a
transcript of the administrative record. (See ECF Nos. 9, 10). In addition, pursuant to
the order of Senior Judge Warren K. Urbom, dated June 25, 2013, (ECF No. 12), each
of the parties has submitted briefs in support of her position. (See generally Pl.’s Br.,
ECF No. 13; Def.’s Br., ECF No. 20, Pl.’s Reply Br., ECF No. 21). After carefully
reviewing these materials, the Court finds that the Commissioner’s decision must be
Roland applied for disability insurance benefits and supplemental security
income on May 20, 2010. (See ECF No. 10, Transcript of Social Security Proceedings
(hereinafter "Tr.") 62-63, 129-32, 136-39). Roland alleged she had affective and mood
disorders and an onset date of April 3, 2010. (Tr. 62, 65, 129). After her application was
denied initially and on reconsideration, (tr. 68-71, 76-79) Roland requested a hearing
before an administrative law judge (hereinafter "ALJ"). (Tr. 80-81). This hearing was
conducted on February 22, 2012. (Tr. 38-61). In a decision dated March 19, 2012, the
ALJ concluded that Roland was not entitled to disability insurance benefits. (Tr. 17-36).
The Appeals Council of the Social Security Administration denied Roland’s request for
review on March 28, 2013. (Tr. 1-5.) Thus, the ALJ’s decision stands as the final
decision of the Commissioner, and it is from this decision that Roland seeks judicial
SUMMARY OF THE RECORD
Roland was born on May 21, 1957. (Tr. 62). She has an associate’s degree in
liberal arts and paralegal training from Lincoln School of Commerce. (Tr. 164). Roland
has work experience as a retail store clerk, a drug store price verifier, and a grocery
store sacker. She was an instructor of English as a second language at Southeast
Community College from 2000 to May 2010, when she had what she termed a nervous
breakdown.1 (Tr. 44, 164).
A. Medical Evidence
Roland asserts that the medical issues related to her request for disability
benefits began on April 4, 2010, when she was stopped by police for erratic driving and
suspected of driving while intoxicated. (Tr. 247). She was taken to the emergency room
of BryanLGH Medical Center West, where Kenton R. Sullivan, M.D., examined her.
Sullivan stated that he could understand the reason the police officers thought Roland
was confused, but he believed she was displaying her normal demeanor and
personality. Roland stated that she sometimes felt she could not think clearly. The
physical exam showed that she was awake and alert, “just generally a little eccentric.”
(Tr. 247). She was discharged in improved condition and asked to follow up with a
physician as soon as possible. (Tr. 250).
Accompanied by her daughter, Roland returned to BryanLGH on May 3, 2010,
complaining of a headache. (Tr. 239). Her daughter reported that Roland had been
crying, upset, tremulous, anxious, and jumpy, apparently because of the headache pain.
She also had difficulty sleeping. Roland did not report any depression. (Tr. 239). She
was referred to mental health nurses for evaluation. (Tr. 240).
One week later, on May 10, 2010, Roland was seen at the People’s Health
Center for confusion, poor appetite, and panic. (Tr. 257). Kim Joy, APRN, noted that
Roland had not been seen at the clinic for two years, but she appeared noticeably
different and was less talkative. She was assessed as having anxiety and panic
disorder. (Tr. 258).
Roland was admitted to BryanLGH on May 11, 2010. (Tr. 327). She presented
with worsening anxiety, poor memory, and thought disorganization and was diagnosed
with major depressive disorder, single episode with psychotic features. On admission
Although the ALJ made findings related to alleged physical impairments,
Roland has not disputed those findings and only the alleged mental impairments are at
her GAF was 35, and when she was discharged on May 16, 2010, her GAF was 55.2
With medication, she improved, her mood became brighter, and she was more talkative.
She agreed to go to the partial hospitalization program at the Community Mental Health
Center of Lancaster County (CMHC). Upon discharge from BryanLGH, Roland was
calm, cooperative, and happy. (Tr. 327).
Upon admission to the partial hospitalization program at CMHC on May 17, 2010,
Roland was diagnosed with mood disorder and cognitive disorder. Her GAF was 34.3
(Tr. 423). She appeared to be disorganized and impaired in day-to-day functioning. (Tr.
424). It was recommended that she be admitted to the program full time for an
estimated two weeks. (Tr. 424). A history and physical evaluation on May 18, 2010,
resulted in a diagnosis of brief reactive psychosis; adjustment disorder with mixed
emotional features; major depression, severe, recurrent without psychotic feature; and
R/O cognitive disorder, not otherwise specified. Her GAF was 40. (Tr. 429).
Notes from the People’s Health Center on June 1, 2010, indicate that Roland
was doing much better on her current medications. (Tr. 255). She was dismissed from
the partial hospitalization program on June 4, 2010, with the diagnosis of major
depressive disorder, moderate. (Tr. 426). Her GAF was 48. Roland reported
improvement in most of her symptoms, although she still had some mild depression and
“The GAF is a numeric scale ranging from zero to one hundred used to rate
social, occupational and psychological functioning ‘on a hypothetical continuum of
mental-health illness.’” Pate-Fires v. Astrue, 564 F.3d 935, 937 n. 1 (8th Cir. 2009)
(quoting American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders 32 (4th ed. 1994)).
Records of some of Roland’s treatment at CMHC between June 7, 2010, and
May 23, 2012, were submitted to the Appeals Council after the ALJ’s order was entered.
mild anxiety symptoms. She demonstrated improved ability to cope. At dismissal, she
appeared to track better and had a brighter affect. (Tr. 426).
Roland had an initial psychiatric diagnostic interview with Gary Nadala, M.D., at
the CMHC on June 18, 2010. (Tr. 262). Roland said medication had helped since her
visit to the emergency room and she wanted to continue taking it, but she said they
were expensive. Nadala said she showed some delay in her responses, mild
psychomotor retardation, anxious mood, fair memory, fair insight and judgment, and
impulse control. She was diagnosed as having anxiety disorder, post traumatic stress
disorder (PTSD), and dysthymic disorder. Her GAF was 49. (Tr. 262). Nadala
recommended that Roland continue her medications and continue with outpatient partial
hospitalization. (Tr. 263).
On October 29, 2010, Patricia Bohart, M.D., conducted an initial psychiatric
diagnostic interview at the CMHC after Roland was transferred for psychiatric care from
Nadala. (Tr. 300). Roland reported that she was greatly improved and that the
medications she had been taking for five months were very helpful and had stabilized
her moods considerably. Her anxiety level was under control. (Tr. 300). Dr. Bohart
reported that Roland’s mood was euthymic and her affect was mood-congruent. Her
thoughts were logical and goal directed. (Tr. 301). She was diagnosed as having major
depressive disorder, single episode, with psychotic features partially resolved. Her GAF
was 50. (Tr. 301).
Roland attended group therapy sessions at the CMHC between June 9, 2010,
and January 25, 2012. (Tr. 357-413). At the initial session in June 2010, Roland had a
neutral affect and flat intensity. She was cooperative and attentive and participated well
in open discussion. By the second session her affect was normal and her mood was
euthymic. (Tr. 391). Through the first two months, she readily participated and engaged
in the group discussions. (Tr. 382-90). Her mood continued to be euthymic and her
affect was normal. (Tr. 379, 371). For two weeks in October 2010, her affect appeared
blunted and her mood mildly dysphoric. (Tr. 365). By November 2010, she was pleasant
and shared her plans for Thanksgiving with the group. (Tr. 363). At the end of
December 2010, Roland was pleasant during group discussions, offered constructive
feedback, and was attentive to peers. (Tr. 358).
In January 2011, Roland reported that she had decreased her medication and
was having some low-level anxiety. However, her affect was within the appropriate
range and she appeared to benefit from the group. (Tr. 412). By the end of February
2011, she reported that she was doing well. (Tr. 411). In April 2011, Roland reported
that she was frustrated she was not where she wanted to be in her recovery from her
“breakdown” a year earlier. (Tr. 407). In June 2011, Roland reported being more
depressed and her mood appeared mildly dysphoric. (Tr. 402). By September 2011, her
mood was cheerful. (Tr. 397), and in November 2011, her affect showed appropriate
range. (Tr. 395). In January 2012, Roland expressed frustration waiting for her disability
hearing. (Tr. 393). Throughout group therapy, Roland was an active participant and
provided support to peers. (Tr. 393).
Roland also took part in individual therapy with Dr. Bohart between December
2010 and January 2012. Initially, Dr. Bohart reported that Roland was doing all right with
an adjustment in her medication, although she reported that she had a little more
anxiety and her depression had increased slightly. (Tr. 444). In February 2011, Dr.
Bohart reported that Roland was coming out of a depression over the anniversary of her
mother’s death, but she was doing better, sleeping better, and getting along okay. (Tr.
443). Roland’s moods were fairly even in April 2011. (Tr. 442). In May 2011, Dr. Bohart
reported that Roland’s moods were satisfactory, but she had noticed some increased
anxiety since cutting back on cigarettes. (Tr. 441). Dr. Bohart adjusted Roland’s
medications in July 2011, reporting that Roland had a slight relapse of her depressive
symptoms and things were not going as she had expected. (Tr. 440). By August 2011,
Dr. Bohart reported that Roland’s moods had improved and her affect was brighter. (Tr.
439). Overall she seemed to really enjoy life, and she volunteered one day each week
at the Matt Talbot Kitchen. (Tr. 439). Roland’s prognosis was fair to good in November
2011, and she had made fair progress by increased recognition of distorted/negative
self-talk and its effect on her emotional responses. (Tr. 422).
On February 7, 2011, Joy at the Peoples Health Center stated that Roland was
not capable of any substantial gainful employment due to the severity of her symptoms
related to depression and anxiety. (Tr. 326). Joy opined that Roland was permanently
disabled. (Tr. 325).
Progress notes from counseling sessions at CMHC in 2012 showed that in
January, Roland’s mood was dysphoric mixed with apprehension. (Tr. 420). She
expressed uncertainty about failing to agree to help with her grandchildren but also
resented it when she passively agreed to help with them. (Tr. 420). She continued to
exhibit gradual improvements in the use of cognitive/behavioral strategies for coping
with daily stressors and anxiety. (Tr. 421).
In March 28, 2012, Roland reported feeling angry about the denial of her
disability. (Tr. 452). She did not think the reasons for the denial were an accurate
reflection of her level of functioning, medical diagnoses, or current situation. She had
good support through friends and treatment groups and planned to call on them to help
her through the difficult time. (Tr. 452).
In a recovery plan and yearly review dated April 3, 2012, Roland was diagnosed
with major depressive disorder, single episode with psychotic features partially resolved.
Her GAF was 44. (Tr. 430). It noted that Roland’s symptoms of anxiety and depression
impaired her ability to follow through with activities of daily living, community
participation, and socialization. She could benefit from community support services in
order to re-establish adult daily living skills to improve her ability to function in the
community and to maximum her stability and independence. (Tr. 430). The report
indicated that Roland had a severe and persistent mental illness which required
continued treatment for stability. A review was scheduled for one year. (Tr. 432).
Dr. Bohart noted on April 16, 2012, that Roland was frustrated because she was
denied disability. (Tr. 435). She reported having a horrible time functioning and her
social skills were quite impaired. Dr. Bohart reported concerns that Roland was starting
to regress. (Tr. 435).
Roland continued counseling at the CMHC in May 2012, when she presented
with dysphoria and apprehension. (Tr. 414). The clinician noted that Roland’s emotional
responses were appropriate considering the circumstances, which included the twoyear anniversary of Roland’s breakdown and the death of her best friend. (Tr. 415).
Roland expressed anger and frustration with the process of applying for disability. (Tr.
416). Roland continued to report gradual increased participation in leisure and social
activities, and proper management of her accompanying anxiety. (Tr. 417).
B. Medical Opinion Evidence
Robert G. Arias, M.D., completed a psychological report on September 21, 2010.
(Tr.267). Roland reported that she had a psychotic depression in May 2010 and was
hospitalized for one week. (Tr. 268). She was prescribed Zyprexa and Celexa and her
mood had improved since then. She was occasionally having thoughts that someone
might harm her, but she denied that the thoughts interfered with her daily activities. She
had monthly flashbacks to childhood sexual abuse. Roland said she had not returned to
work since her breakdown because she was afraid to enter the classroom. She also
stated that she had no desire to return to work. She reported problems with
concentration that resulted in difficulty putting together plans or completing tasks.
However, she stated that she was eventually able to complete the tasks. (Tr. 268). Her
typical day involved going to group therapy twice per week and volunteering once a
week at Matt Talbot Kitchen. She denied any difficulty with accomplishing activities of
daily living. She helped her daughter care for her grandchild. Roland said she had two
close friends and several other friends. (Tr. 269).
Dr. Arias reported that Roland demonstrated intact ability to receive, organize,
analyze, remember, and express information appropriately. Her mood was euthymic
and her affect was stable and appropriate. There was no lack of contact with reality and
there were no observable signs of tension, anxiety, psychomotor disturbance, or
substance abuse. Her judgment and insight were reasonable. (Tr. 269). Dr. Arias found
no restriction in the activities of daily living or maintenance of social functioning. There
had not been recurrent episodes of deterioration when stressed resulting in withdrawal
from situations and exacerbation of symptoms. (Tr. 269). Roland had a single episode
of major depression in May 2010, but she appeared to maintain adequate ability to
sustain concentration and attention needed for simple task completion, and she was
able to understand and remember short and simple instructions and carry them out
under ordinary supervision. She appeared capable of relating appropriately to
coworkers and supervisors as well as adapting to basic changes in her environment. Dr.
Arias diagnosed Roland as having major depressive episode, single episode,
unspecified; and features of PTSD. Her GAF was 65-70. (Tr. 270). Dr. Arias said
Roland was able to sustain concentration and attention needed for task completion, to
understand and remember short and simple instructions under ordinary supervision, to
relate appropriately to coworkers and supervisors, and to adapt to changes in her
environment. (Tr. 265).
Dr. Arias said Roland’s prognosis was optimistic. Although she had longstanding
limited symptoms of PTSD, those had not interfered in her daily activities to any
significant degree. She thus had a good prognosis presuming stable daily functioning.
Her episode of major depression appeared to have resolved to a great extent. She
would likely continue to benefit from psychological and psychiatric treatment. (Tr. 270).
She appeared capable of managing her benefits if awarded. (Tr. 271).
Lee Branham, Ph.D., completed a mental residual functional capacity (RFC)
assessment on October 25, 2010. (Tr. 273-77). He determined that Roland was not
significantly limited in the ability to remember locations and work-like procedures; to
understand, remember, and carry out very short and simple instructions; to perform
activities within a schedule, maintain regular attendance, and be punctual within
customary tolerances; to sustain an ordinary routine without special supervision; to
make simple work-related decisions; to complete a normal workday and workweek
without interruptions and to perform at a consistent pace without an unreasonable
number and length of rest periods; to ask simple questions or request assistance; to
accept instructions and respond appropriately to criticism from supervisors; to get along
with coworkers or peers without distracting them or exhibiting behavioral extremes; to
maintain socially appropriate behavior and to adhere to basic standards of neatness
and cleanliness; to respond appropriately to changes in the work setting; to be aware of
normal hazards and take appropriate precautions; to travel in unfamiliar places or use
public transportation; and to set realistic goals or make plans independently of others.
(Tr. 273-74). Roland had moderate limitations in the ability to understand, remember,
and carry out detailed instructions; to maintain attention and concentration for extended
periods; to work in coordination with or proximity to others without being distracted by
them; and to interact appropriately with the general public. (Tr. 273-74).
Branham stated that Roland continued to report some difficulty with
attention/concentration and difficulty returning to her teaching job, so she appeared to
have moderate limitations in handling a full range of detailed work. (Tr. 275). She would
have moderate limitations in carrying out detailed instructions, but could carry out
simple ones under ordinary supervision. Her limitations in attention/concentration were
moderate and she had moderate limitations in avoiding distraction by others. Her social
anxiety led to moderate limitations in dealing with the public. (Tr. 275).
On a psychiatric review technique, Branham indicated that Roland had major
depression with history of psychotic features, (Tr. 281) anxiety disorder NOS, and
PTSD. (Tr. 283). Branham indicated that Roland had mild restriction of activities of daily
living, and moderate difficulties in maintaining social functioning, concentration,
persistence, and pace. (Tr. 288). She had one or two repeated episodes of
decompensation. (Tr. 288). He stated that objective findings did not point to a level of
anxiety or depression that would prevent her from doing less demanding work. (Tr.
290). On January 13, 2011, Christopher Milne, Ph.D., affirmed the mental RFC of
October 25, 2010. (Tr. 323)
On a psychiatric review technique dated February 21, 2012, Dr. Bohart indicated
that Roland had an affective disorder. (Tr. 343). Her disturbance of mood reflected a
depressive syndrome characterized by aphedonia or pervasive loss of interest in almost
all activities, sleep disturbance, feelings of guilt or worthlessness, difficulty concentrating
or thinking, and thoughts of suicide. (Tr. 346). Dr. Bohart said that Roland had moderate
restrictions in activities of daily living and maintaining social functioning, and marked
difficulties in maintaining concentration, persistence, or pace. She had three episodes of
decompensation. (Tr. 353). Dr. Bohart indicated that Roland had a medically
documented history of a chronic affective disorder of at least two years’ duration that
had resulted in such marginal adjustment that even a minimal increase in mental
demands or change in the environment would cause her to decompensate. (Tr. 354).
C. Hearing Testimony
At a hearing on February 22, 2012, Roland stated that she lived in her
daughter’s home with her daughter and son-in-law, their two children, and Roland’s son.
(Tr. 44). She stopped working as an instructor of English as a second language for
Southeast Community College (Tr. 44) in May 2010 when she had a nervous
breakdown. (Tr. 20). She had not worked since that time. (Tr. 44).
Roland explained that about one month before the nervous breakdown, she
became nervous and paranoid, could not concentrate, was distracted, and thought
someone was going to hurt her or her students. (Tr. 46). She said medication had
helped but she still had those feelings. Roland said it is difficult for her to go out in
public. (Tr. 47). She cannot take public transportation because there are too many
people who are too close. (Tr. 48). She lost her driver’s license shortly before the
nervous breakdown when she was ticketed for erratic driving. She said she cannot read
because she gets distracted and cannot keep the characters straight. If she tried to read
a text a second time, she had forgotten what she previously read. (Tr. 48). Roland said
she spent most of her time by herself, watching television, pacing the floor, or playing
with her grandchildren. (Tr. 49).
Roland said she got paranoid and felt something bad was going to happen when
she was in public or around people. (Tr. 50). She did not go to malls or to church
because there were too many people. (Tr. 50). She said she could no longer write a
paragraph because she could not concentrate. (Tr. 51). Roland said she had difficulty
making decisions and her daughter had to help her pick out her clothes. (Tr. 52).
Dale Lanhart, a vocational expert (VE), (Tr. 53), stated that, based on her
testimony, Roland would not be able to return to her past work because she has
difficulty concentrating and has panic and anxiety attacks. (Tr. 55). If she were able to
maintain concentration and attention span for 90 percent of the time and have 90
percent contact with the public and co-workers, she would be able to return to past
work. (Tr. 55). The VE stated that a hypothetical worker who could perform simple tasks
requiring one, two, or three steps, but not detailed work, would not be able to return to
any of Roland’s past work. (Tr. 56).
The ALJ asked Lanhart whether there was any work in the national or regional
economy that a hypothetical worker would be able to do if the worker were the same
age as Roland, had the same educational background of high school plus four years of
postsecondary education, and were able to perform skilled work with the same
transferable skills as Roland, including no exertional physical limitation, mental
limitations limited to one, two, or three steps, maintaining attention span and
concentration 90 percent of the time, and having contact with the public or co-workers
90 percent of the time. (Tr. 56). The VE identified several unskilled jobs that such an
individual would be able to handle. The first was production assembler, in which the
employee was virtually isolated and there was rare contact with a supervisor. (Tr. 57).
There were 1,928 production assembler jobs in the region and 40,998 jobs in the
country. (Tr. 56). A second job that the hypothetical worker could do is hand packager,
of which there were 14,148 jobs at the light level in the region and 311,534 in the
country. At the medium level, there were 7,319 jobs in the region and 161,138 in the
country. (Tr. 57). The VE also found that there were unskilled cashier positions that
would meet this hypothetical. In the region there were 34,856 jobs at the light unskilled
job level and 1,103,014 jobs in the country. (Tr. 57). Another job that would be more
isolated than cashier was housekeeping cleaner, which was a light, unskilled job, of
which there were 16,638 in the region and 366,755 in the country. (Tr. 57-58). At the
medium level, there were 15,900 housekeeping jobs in the region and 350,000 in the
country. (Tr. 58).
The VE stated that there would not be any available work if the same worker was
unable to sustain an ordinary routine without special supervision 25 percent of the time
and the concentration level was reduced to 75 percent. (Tr. 58). An individual with
marked difficulties and limitations in maintaining concentration, persistence, and pace
would not be able to perform the jobs identified. (Tr. 59). An individual with moderate
difficulties maintaining social functioning would be able to perform the four jobs. An
individual who had moderate restrictions of daily living, moderate difficulties maintaining
social functioning, marked difficulties maintaining concentration, persistence, and pace,
and three episodes of decompensation during the year would not be able to do any of
the jobs identified. (Tr. 59).
D. The ALJ's Decision
An ALJ is required to follow a five-step sequential analysis to determine whether
a claimant is disabled. See 20 C.F.R. § 404.1520(a). The ALJ must continue the
analysis until the claimant is found to be “not disabled” at steps one, two, four or five, or
is found to be disabled at step three or step five. See id. In this case, the ALJ found
that Roland is not disabled. (Tr. 17-32).
Step one requires the ALJ to determine whether the claimant is currently
engaged in substantial gainful activity. See 20 C.F.R. § 404.1520(a)(4)(i), (b). If the
claimant is engaged in substantial gainful activity, the ALJ will find that the claimant is
not disabled. See id. The ALJ found that Roland had not engaged in substantial gainful
activity since April 3, 2010, the alleged onset date. (Tr. 19).
Step two requires the ALJ to determine whether the claimant has a “severe
impairment.” 20 C.F.R. § 404.1520(c). A “severe impairment” is an impairment or
combination of impairments that significantly limits the claimant’s ability to do “basic
work activities” and satisfies the “duration requirement.”
See 20 C.F.R. §
404.1520(a)(4)(ii), (c); id. § 404.1509 (“Unless your impairment is expected to result in
death, it must have lasted or must be expected to last for a continuous period of at least
Basic work activities include “[p]hysical functions such as walking,
standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling”; “[c]apacities
for seeing, hearing, and speaking”; “[u]nderstanding, carrying out, and remembering
simple instructions”; “[u]se of judgment”; “[r]esponding appropriately to supervision, coworkers and usual work situations”; and “[d]ealing with changes in a routine work
setting.” 20 C.F.R. § 404.1521(b). If the claimant cannot prove such an impairment, the
ALJ will find that the claimant is not disabled. See 20 C.F.R. § 404.1520(a)(4)(ii), (c).
The ALJ found that Roland had the following severe impairments: major depressive
disorder with history of psychotic features, resolved; PTSD; and history of anxiety
disorder, not otherwise specified. (Tr. 19). The ALJ also found that Roland’s medically
determinable mental impairments resulted in mild limitations in activities of daily living,
mild limitations in maintaining social functioning, and moderate limitations in maintaining
concentration, persistence, or pace, and that she had no repeated episodes of
decompensation. (Tr. 19). The ALJ also noted that there was evidence Roland had or
had a history of fibromyalgia; breast cancer with right mastectomy in 1993; history of
hypertension requiring medication for control; history of arthritis requiring ibuprofen in
the past; history of a partial thyroidectomy without cancer in 1997; history of elevated
glucose levels without an accompanying diagnosis; and history of asthma in the context
of cigarette smoking. The ALJ found that those conditions were not severe impairments,
either singly or in combination, and they were not, either singly or in combination, more
than slight abnormalities that had more than a minimal effect on her ability to perform
basic work activities. (Tr. 20).
Step three requires the ALJ to compare the claimant’s impairment or impairments
to a list of impairments. See 20 C.F.R. § 404.1520(a)(4)(iii), (d); see also 20 C.F.R. Part
404, Subpart P, App’x 1. If the claimant has an impairment “that meets or equals one of
[the] listings,” the analysis ends and the claimant is found to be disabled. See 20 C.F.R.
§ 404.1520(a)(4)(iii), (d). If a claimant does not suffer from a listed impairment or its
equivalent, then the analysis proceeds to steps four and five.
See 20 C.F.R. §
404.1520(a). The ALJ found that Roland did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525,
404.1526, 416.920(d), 416.925, and 416.926). (Tr. 20).
Step four requires the ALJ to consider the claimant’s RFC4 to determine whether
the impairment or impairments prevent the claimant from engaging in “past relevant
work.” See 20 C.F.R. § 404.1520(a)(4)(iv), (e), (f). If the claimant is able to perform any
past relevant work, the ALJ will find that the claimant is not disabled. See 20 C.F.R. §
The assessment of a claimant’s residual functional capacity measures the
highest level of physical and mental activity the claimant can perform despite his or her
limitations. See 20 C.F.R. § 404.1545 and 20 C.F.R. § 416.945. See also Lowe v. Apfel,
226 F.3d 969, 972 (8th Cir. 2000) (citing 20 C.F.R. § 404.1545(a)) (residual functional
capacity is what the claimant is able to do despite limitations caused by all of the
404.1520(a)(4)(iv), (f). In this case, the ALJ found that Roland had the residual
functional capacity to perform a full range of work at all exertional levels but with the
following nonexertional limitations: Roland could perform only tasks of one, two, or three
steps; she could maintain attention span and concentration for 90 percent of the time;
and she could maintain 90 percent contact with the public and co-workers. (Tr. 20).
The ALJ found that Roland’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms. (Tr. 21). However, the ALJ
found that Roland’s statements concerning the intensity, persistence, and limiting
effects of her symptoms were not credible to the extent they were inconsistent with the
RFC. (Tr. 21). The ALJ found that Roland was unable to perform any past relevant
work. (Tr. 30).
Step five requires the ALJ to consider the claimant’s RFC, age, education, and
past work experience to determine whether the claimant can do work other than that
which he or she has done in the past. See 20 C.F.R. § 404.1520(a)(4)(v), (g); id. §
416.920(a)(4)(v), (g). If the ALJ determines that the claimant cannot do such work, the
claimant will be found to be “disabled” at step five. See 20 C.F.R. § 404.1520(A0(4)(v),
(g); id. § 416.920(a)(4)(v), (g). Here, the ALJ determined that, considering Roland’s age,
education, work experience, and RFC, Roland was capable of making a successful
adjustment to other work that existed in significant numbers in the national economy.
(Tr. 31). Roland had not been under a disability from April 3, 2010, through the date of
the decision. (Tr. 31).
III. STANDARD OF REVIEW
I must review the Commissioner’s decision to determine “whether there is
substantial evidence based on the entire record to support the ALJ’s factual findings.”
Johnson v. Chater, 108 F.3d 178, 179 (8th Cir. 1997) (quoting Clark v. Chater, 75 F.3d
414, 416 (8th Cir. 1996)). See also Collins v. Astrue, 648 F.3d 869, 871 (8th Cir. 2011).
“Substantial evidence is less than a preponderance but enough that a reasonable mind
might accept as adequate to support the conclusion.” Kamann v. Colvin, 721 F.3d 945,
950 (8th Cir. 2013) (internal citations omitted). A decision supported by substantial
evidence may not be reversed, “even if inconsistent conclusions may be drawn from the
evidence, and even if [the court] may have reached a different outcome.” McNamara v.
Astrue, 590 F.3d 607, 610 (8th Cir. 2010). Nevertheless, the court’s review “is more
than a search of the record for evidence supporting the Commissioner’s findings, and
requires a scrutinizing analysis, not merely a ‘rubber stamp’ of the Commissioner’s
action.” Scott ex rel. Scott v. Astrue, 529 F.3d 818, 821 (8th Cir. 2008) (citations,
brackets, and internal quotation marks omitted). See also Moore v. Astrue, 623 F.3d
599, 602 (8th Cir. 2010) (“Our review extends beyond examining the record to find
substantial evidence in support of the ALJ’s decision; we also consider evidence in the
record that fairly detracts from that decision.”).
I must also determine whether the Commissioner’s decision “is based on legal
error.” Collins v. Astrue, 648 F.3d 869, 871 (8th Cir. 2011) (quoting Lowe v. Apfel, 226
F.3d 969, 971 (8th Cir. 2000)). “Legal error may be an error of procedure, the use of
erroneous legal standards, or an incorrect application of the law.” Id. (citations omitted).
No deference is owed to the Commissioner’s legal conclusions. See Brueggemann v.
Barnhart, 348 F.3d 689, 692 (8th Cir. 2003).
See also Collins, 648 F.3d at 871
(indicating that the question of whether the ALJ’s decision is based on legal error is
reviewed de novo).
In a disability benefits case, the claimant has the burden to prove that he or she
has a disability. Teague v. Astrue, 638 F.3d 611, 615 (8th Cir. 2011). Under the Social
Security Act, a disability is defined as the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A) and
1382c(a)(3)(A). The claimant will be found to have a disability “only if his physical or
mental impairment or impairments are of such severity that he is not only unable to do
his previous work but cannot, considering his age, education and work experience,
engage in any other kind of substantial gainful work which exists in the national
economy.” 42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B); see also Bowen v. Yuckert,
482 U.S. 137, 140 (1987).
The ALJ determined that Roland had not met her burden to prove that she is
disabled and that she could not engage in gainful employment. Roland asserts that the
ALJ erred in several respects by 1) failing to properly consider Roland’s concentration
issues; 2) using a legally defective standard at step five of the disability determination;
3) improperly assigning weight to the medical source opinions; and 4) failing to properly
assess her credibility. The Court concludes that the ALJ did not err and that there is
substantial evidence in the record to support the ALJ’s decision.
The ALJ found that Roland was able to maintain attention span and
concentration for 90 percent of the time and that Roland’s severe mental impairments
did not result in at least two of the following: marked restrictions in activities of daily
living; or marked difficulties in maintaining social functioning; or marked difficulties in
decompensation. (Tr. 20).
In considering Roland’s symptoms, the ALJ followed a two-step process in which
he first determined whether there was an underlying medically determinable physical or
mental impairment, such as an impairment that can be shown by medically acceptable
clinical and laboratory diagnostic techniques, that could reasonably be expected to
produce her pain or other symptoms. Second, the ALJ evaluated the intensity,
persistence, and limiting effects of Roland’s symptoms to determine the extent to which
they limit her functioning. (Tr. 21).
The ALJ noted that Roland’s alleged significant problems with concentration and
memory were not exhibited at the hearing. (Tr. 29). Roland was able to respond
appropriately to questions, to provide lengthy and detailed explanations, and to testify
for an extended period of time. The ALJ stated that Roland did not frequently ask to
have things repeated and did not require frequent repetition of questions or rephrasing
of questions with simple words and short sentences. “Indeed, the claimant was able to
provide multiple points of information and reasons when responding to questions.” (Tr.
29). Roland’s testimony was not “significantly hindered or overshadowed by anxiety or
depression or by loss of concentration or loss of attention or by signs of severe credible
pain.” (Tr. 29).
Roland argues that there is substantial evidence in the record of her problems
with concentration. At the hearing, she testified that she could not concentrate in the
month leading to her nervous breakdown. (Tr. 46). She said she was stopped for erratic
driving because it was hard to pay attention. (Tr. 48). She testified that she repeats
questions in a conversation because she is distracted and she cannot read because
she has to re-read the same pages. (Tr. 48). She asserts that she had to stand up at the
hearing after 14 minutes of questioning. (Tr. 49). She claims she was only questioned
for 20 minutes, which does not demonstrate her ability to concentrate during a full
workday. (Tr. 49).
The ALJ observed Roland’s behavior at the hearing and determined that it did
not support her claims of an inability to concentrate. “The ALJ’s personal observations
of the claimant’s demeanor during the hearing is completely proper in making credibility
determinations.” Johnson v. Apfel, 240 F.3d 1145, 1147-48 (8th Cir. 2001). The ALJ
concluded that Roland exhibited appropriate behavior during the hearing, and the Court
finds no error in this determination.
Roland also argues that other evidence in the record supports her claim that she
has difficulty with concentration. She cites her activities of daily living report, in which
she stated that she has trouble making decisions and is easily distracted. (Tr. 183). Dr.
Bohart stated in a psychiatric review technique, dated February 21, 2012, that Roland
had difficulty concentrating or thinking and marked difficulties in maintaining
concentration, persistence, or pace. (Tr. 346, 353).
However, the ALJ did not give controlling weight to Dr. Bohart’s opinion in the
psychiatric review technique. (Tr. 27). The ALJ noted that there was only one treatment
note by Dr. Bohart, dated October 29, 2010, and it lacked strong objective findings to
support the opinion and her opinions and conclusions were contradicted by other
evidence in the record. (Tr. 27).5 The psychiatric review technique form was prepared in
support of Roland’s request for disability.
If Roland had the severe limitations as
reflected in Dr. Bohart’s opinion, they would have been supported by actual treatment
notes and consistent with other medical evidence, and the ALJ found that was not the
case. (Tr. 27). This Court agrees.
The ALJ stated that Dr. Bohart’s opinion relied heavily on Roland’s reported
history of past abuse, but Roland had performed substantial gainful activity for a number
of years following the abuse. (Tr. 27). The ALJ found no evidence that Dr. Bohart used
or followed a medically acceptable standardized methodology to determine Roland’s
alleged limitations. (Tr. 28). And there was no evidence that Dr. Bohart had received
specialized training in the vocational evaluation of mental disability, such as the state
agency medical consultants, who routinely use the psychiatric review technique form.
The ALJ stated that Dr. Bohart did not clearly define her ratings so they could be
understood. There was no evidence elsewhere in the record of the three episodes of
decompensation, each of extended duration, that Dr. Bohart identified on the form. The
Additional treatment notes were submitted to the Appeals Council. (Tr. 1-6).
The Council did not find that the evidence required remand to the ALJ. This Court
agrees with the Council and does not find that the additional evidence requires that
more weight be given to Dr. Bohart’s opinion.
ALJ noted that Dr. Bohart had used a check-off form to arrive at essentially conclusory
statements that Roland was disabled. (Tr. 28).
The weight given to medical opinions is governed by 20 C.F.R. § 404.1527(c),
which provides that factors, such as the examining relationship and the treatment
relationship, including its length, nature, and extent, will be taken into consideration. In
addition, “[g]enerally, the more consistent an opinion is with the record as a whole, the
more weight” will be given to the opinion. 20 C.F.R. § 404.1527(c)(4). If the doctor's
opinion is inconsistent with or contrary to the medical evidence as a whole, the ALJ can
accord it less weight. Travis v. Astrue, 477 F.3d 1037 (8th Cir. 2007). The issue of the
weight given to medical source opinions in this case will be discussed further below, but
the Court finds no error in the ALJ’s consideration of Roland’s alleged difficulties in
Legally Defective Standard
Roland next argues that the standard applied by the ALJ imposed too high a
burden of proof on her and requires reversal. (Pl.’s Brf at 8). The ALJ stated that, at the
last step of the sequential evaluation process, he “must determine whether the claimant
is able to do any other work considering her residual functional capacity, age,
education, and work experience. If the claimant is able to do other work, she is not
disabled. If the claimant is not able to do other work and meets the duration
requirement, she is disabled.” (Tr. 19).
Roland cites to 42 U.S.C. § 423(d)(2)(A), which provides that “[a]n individual shall
be determined to be under a disability only if his physical or mental impairment or
impairments are of such severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage in any other kind
of substantial gainful work which exists in the national economy. . . .”
The ALJ stated that although a claimant generally continues to have the burden
of proving disability at step five, the Social Security Administration carries a limited
burden to provide evidence that demonstrates that other work exists in significant
numbers in the national economy that the claimant can do, given the RFC, age,
education, and work experience. (Tr. 19).
As noted earlier, a claimant’s RFC measures the highest level of physical and
mental activity he or she can perform despite his or her limitations. See 20 C.F.R. §
404.1545 and 20 C.F.R. § 416.945. See also Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir.
2000) (citing 20 C.F.R. § 404.1545(a)) (RFC is what the claimant is able to do despite
limitations caused by all of the claimant's impairments.).
Roland cites Ingram v. Chater, 107 F.3d 598, 604 (8th Cir. 1997), in which the
court stated: “Residual functional capacity ‘is not the ability merely to lift weights
occasionally in a doctor's office; it is the ability to perform the requisite physical acts day
in and day out, in the sometimes competitive and stressful conditions in which real
people work in the real world.’” However, in that case the court was referring to the
ALJ’s findings as to whether the claimant could return to past work. In the case at bar,
the ALJ determined that Roland cannot return to her past employment as an instructor,
but he found that she can obtain other employment, and is therefore, not disabled. The
Court finds that the ALJ did not improperly impose a greater burden on Roland.
Weight of Medical Source Opinions
Roland asserts that the ALJ did not give controlling weight to the opinions of
medical sources, both treating and non-treating. (Pl.’s Brf at 8). As noted above, the ALJ
did not give controlling weight to the opinion of Dr. Bohart because it was supported by
only one treatment note. Pursuant to 20 C.F.R. § 404.1502, a treating source is the
claimant’s own physician who provides the claimant with medical treatment or
evaluation and who has, or has had, an ongoing treatment relationship with the
The records, including those submitted to the Appeals Council, show that Roland
took part in individual therapy with Dr. Bohart between December 2010 and January
2012. Dr. Bohart noted improvement in Roland’s moods over time. By August 2011,
Roland’s affect was brighter, she was enjoying life, and volunteering. (Tr. 439). Thus,
Dr. Bohart’s treatment records do not support her conclusions. The inconsistencies
support the ALJ’s decision to give less weight to Dr. Bohart’s opinion. (An ALJ may
discount treatment notes that are inconsistent with an RFC form. Raney v. Barnhart,
396 F.3d 1007, 1010 (8th Cir. 2005)).
Dr. Bohart’s psychiatric review technique, dated February 21, 2012, was a
checklist on which she indicated that Roland had moderate restrictions in activities of
daily living and maintaining social functioning, and marked difficulties in maintaining
concentration, persistence, or pace. (Tr. 353). A treating physician’s “Medical Source
Statement,” which consisted of a series of check marks assessing RFC, may be
discounted as a conclusory opinion if it is contradicted by other objective medical
evidence in the record. Johnson v. Astrue, 628 F.3d 991, 994 (8th Cir. 2011). The ALJ
was correct in noting that the checklist provided no explanation or rationale to support
Dr. Bohart’s opinion.
In records submitted after the ALJ’s decision, Dr. Bohart noted that Roland was
frustrated because she was denied disability. (Tr. 435). Roland argues that the ALJ
failed to properly develop the record concerning Dr. Bohart’s treatment notes. The ALJ
noted that counsel had the opportunity to supplement the record. (Tr. 27). Records from
the CMHC from January 2011 to May 2012 were submitted to the Appeals Council. The
claimant's failure to provide medical evidence to support her claim should not be held
against the ALJ when there is medical evidence that supports the ALJ's decision. Steed
v. Astrue, 524 F.3d 872, 874 (8th Cir. 2008). An ALJ is not required to seek additional
clarifying medical evidence unless a crucial issue is undeveloped. Goff v. Barnhart, 421
F.3d 785, 791 (8th Cir. 2005). The need for medical evidence does not require the
Commissioner to produce additional evidence not already within the record. Anderson
v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995). An ALJ is permitted to issue a decision
without obtaining additional medical evidence so long as other evidence in the record
provides a sufficient basis for the ALJ's decision. Id. The ALJ properly declined to give
great weight to Dr. Bohart’s opinion and was not required to seek additional evidence.
Roland also argues that the ALJ improperly gave the greatest weight to the
medical opinions of the state agency doctors. (Pl.’s Brf at 13). The ALJ stated that the
September 2010 report from Dr. Arias did not support Roland’s allegations of disability
because it did not produce strong clinical signs or findings relating to abnormalities. (Tr.
23). He gave her a GAF rating of 65-70,6 which showed largely intact overall adaptive
functioning and was in the less-restrictive range of overall symptomatology. (Tr. 23).
The ALJ noted that Roland’s reports to the examiner showed that her mood had
improved after she started psychotropic medications. (Tr. 24). The examining
psychologist’s opinion was given great weight as consistent with the overall evidence.
He offered diagnoses of major depressive disorder, single episode, unspecified, and
features of PTSD. The ALJ stated that the psychologist reported an optimistic
prognosis, provided a solid basis for his opinions, and used vocationally precise and
relevant language in his report. (Tr. 24).
The ALJ gave weight to Dr. Arias’ opinion because it was supported by the
overall record. The more consistent an opinion is with the record as a whole, the more
weight will be given to the opinion. 20 C.F.R. § 404.1527(c)(4).
As the ALJ noted, the record did not show that any doctor who treated or
examined Roland credibly stated or implied that she was disabled or totally
incapacitated, and no doctor placed any credible specific long-term limitations on her
abilities to stand, sit, walk, bend, lift, carry, or perform other basic physical or mental
work-related activities, at least none that would preclude the performance of workrelated activities contemplated within the RFC. (Tr. 26).
A GAF of 61-70 denotes: “Some mild symptoms (e.g., depressed mood and
mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g.,
occasional truancy, or theft within the household), but generally functioning pretty well,
has some meaningful interpersonal relationships.” American Psychiatric Association;
Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, Text Revision.
Washington, D.C., American Psychiatric Association, 2000.
The ALJ gave some weight to the expert opinions of the non-treating and nonexamining state agency medical consultants which showed that even though Roland
had severe mental impairments, she was still able to sustain the performance of simple
tasks in the competitive work environment. (Tr. 28). Roland’s basic abilities to think,
understand, remember, communicate, concentrate, get along with other people, and
handle normal work stress were never significantly impaired on any documented longterm basis, at least not to the extent that she would be prevented from performing the
mental work-related activities contemplated within the RFC. (Tr. 28). The ALJ properly
accorded weight to the medical sources, and his RFC finding was supported by
Assessment of Credibility
Finally, Roland argues that her credibility was not properly assessed by the ALJ.
The ALJ stated that although Roland had functional limitations from severe
impairments, her history of seeking treatment, the inconsistency of the presentation of
her complaints with the results of diagnostic testing and imaging and clinical findings
from examination and courses of treatment, the conservative treatment modalities, and
the lack of persistently prescribed pain medication did not support the severity of
Roland’s allegations. (Tr. 25). The record showed no documented credible serious
deterioration in Roland’s personal hygiene or habits, daily activities or interests,
effective intelligence, reality contact, thought processes, memory, speech, mood and
affect, attention span, insight, judgment, or behavior patterns over any extended period
of time, such that would prevent the performance of basic work-related activities
contemplated within the RFC. (Tr. 29).
The ALJ found that Roland’s family did not consider her condition to be severe
because she cared for her granddaughter. (Tr. 24). And Roland’s living situation with
her son, daughter, son-in-law, and grandchildren showed that she was able to
effectively socialize with her family. She also volunteered once a week at a charitable
kitchen. Roland reported no problems with her activities of daily living. (Tr. 24). The ALJ
noted that the mental status examination was unremarkable and that Roland reported
having close friends, which showed her ability to effectively socialize with others and to
have essentially intact social functioning. (Tr. 24).
The ALJ noted that the evidence did not show a strong connection between the
alleged onset date and any particular significant medical event, injury, medical change,
or medical worsening of any condition that did not favorably and adequately respond to
medical intervention. (Tr. 21). The ALJ noted that Roland received conservative care for
her psychotic and paranoid symptoms (Tr. 22). The ALJ also found that there had not
been a significant change in Roland’s mental health care since June 2010. (Tr. 25). She
was still seeing Dr. Bohart and received conservative care with medication management
and some counseling. (Tr. 25). Roland’s daily activities were restricted by her choice or
preference and not by any apparent medical proscription. (Tr. 26). There was no
credible documented evidence of nonexertional pain or cognitive abnormality seriously
interfering with or diminishing Roland’s ability to concentrate, at least not to an extent
that would preclude the performance of work-related activities contemplated within the
RFC. (Tr. 26).
The ALJ is in the best position to determine the credibility of the testimony and is
granted deference in that regard. Johnson v. Apfel, 240 F.3d 1145 (8th Cir. 2001). An
ALJ is entitled to make a factual determination that a claimant's subjective complaints
are not credible in light of objective medical evidence to the contrary. Ramirez v.
Barnhart, 292 F.3d 576 (8th Cir. 2002). This Court cannot substitute its opinion for that
of the ALJ. The Court finds no error in the ALJ’s determination of Roland’s credibility
when taken into consideration with the medical evidence in the record.
The ALJ thoroughly considered all exhibits and evidence and found that Roland
has not been disabled from the alleged onset to the date of the decision. The Court
finds no error in the ALJ’s decision.
For the reasons discussed, the Court concludes that the Commissioner’s
decision is supported by substantial evidence on the record as a whole and should be
IT IS ORDERED:
The Commissioner’s decision is affirmed;
The appeal is denied; and
Judgment in favor of the defendant will be entered in a separate
Dated this 8th day of May, 2014.
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge
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