Rosenberg v. Colvin

Filing 21

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID LEE ROSENBERG,
Plaintiff,

4:13-CV-3114

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 David Lee Rosenberg's application for
supplemental security income (SSI) benefits under Title XVI of the Social
Security Act, 42 U.S.C. § 1381 et seq. The Court has considered the parties'
filings and the administrative record. For the reasons discussed below, the
Commissioner's decision will be affirmed.
I. PROCEDURAL BACKGROUND
Rosenberg applied for SSI benefits in February 2011, with a protective
filing date of January 25, 2011. T15, 124–129.1 His claim was denied initially
and on reconsideration. T58–70. Following a hearing on May 2, 2012, the
administrative law judge (ALJ) found that Rosenberg was not disabled as
defined under 42 U.S.C. § 1382c(a)(3)(A), and therefore not entitled to
benefits under the Social Security Act. T12–27.
To determine whether a claimant is entitled to disability benefits, the
ALJ performs a five-step sequential analysis. 20 C.F.R. § 416.920(a)(4). At
step one, the claimant has the burden to establish that he has not engaged in
substantial gainful activity since his 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, he will be found not to be disabled;
otherwise, at step two, he has the burden to prove he has a medically
determinable physical or mental impairment or combination of impairments
All citations to the administrative record (filings 12 through 12-9) are given as "T
[Transcript]" followed by the page number.
1

that significantly limits his physical or mental ability to perform basic work
activities. Gonzales, 465 F.3d at 894.
At step three, if the claimant shows that his impairment meets or
equals a presumptively disabling impairment listed in the regulations, he 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. § 416.920(a)(4). A claimant's RFC is what he can do despite
the limitations caused by any mental or physical impairments. Travis v.
Astrue, 477 F.3d 1037, 1041 (8th Cir. 2007). At step four, the claimant has
the burden to prove he lacks the RFC to perform his past relevant work.
Gonzales, 465 F.3d at 894. If the claimant can still do his past relevant work,
he 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.
Rosenberg alleged disability primarily as a result of mental
impairments, including, among other things, attention deficit hyperactivity
disorder (ADHD), problems with anger management, disruptive behavior
disorder, and a global learning disorder.2 T162. Rosenberg was born in 1992,
and alleges that his conditions became disabling in June 1996. T15, 124. The
reason for this date is not clear. In any event, SSI benefits are not awarded
retroactively for months prior to the application for benefits. See 20 C.F.R. §§
416.330 and 416.335. So, the question that was before the ALJ, and which is
now before this Court, is whether Rosenberg proved disability from the date
of his application, January 25, 2011, through the date of the ALJ's decision,
May 2, 2012. See 20 C.F.R. § 416.330.
At step one, the ALJ found that Rosenberg had not engaged in
substantial gainful activity since January 25, 2011. T17. At step two, the ALJ
found that Rosenberg had the following severe impairments: ADHD,
intermittent explosive disorder by history, disruptive behavior
disorder/conduct disorder by history, a mood disorder, and a learning
disability. T17–18. At step three, the ALJ found that Rosenberg did not have
an impairment or combination of impairments that met or equaled a
presumptively disabling impairment. T18–19.
The ALJ determined that Rosenberg had the RFC to perform a full
range of work at all exertional levels but with several non-exertional
The record also suggests that Rosenberg suffers from some physical impairments, such as
asthma. T162. But Rosenberg does not argue that the ALJ erred in finding his physical
impairments to be non-severe, see T17–18, and the Court will not discuss them further.
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limitations. The ALJ found that Rosenberg could perform simple tasks, but
was limited to jobs that do not demand attention to details or complicated job
tasks or instructions; that he could work in proximity to others, but was
limited to jobs that do not require close cooperation and interaction with
coworkers, in that he would work best in relative isolation; and that
Rosenberg was limited to no interaction or cooperation with the general
public. Finally, the ALJ found that Rosenberg retained the ability to
maintain attention and concentration for a minimum of 2-hour periods at a
time, adapt to changes in the workplace on a basic level, and accept
supervision on a basic level. T19–20.
The ALJ found, at step four, that Rosenberg had no past relevant work,
and so proceeded to step five. T26 Relying upon the testimony of a vocational
expert, the ALJ found that Rosenberg could perform the jobs of kitchen
helper, industrial cleaner, and order filler. T26–27, 55. So, the ALJ concluded
that Rosenberg was not disabled. T27.
On April 18, 2013, the Appeals Council of the Social Security
Administration denied Rosenberg's request for review. T1–4. Rosenberg's
complaint (filing 1) seeks review of the ALJ's decision as the final decision of
the Commissioner under sentence four of 42 U.S.C. § 405(g), pursuant to 42
U.S.C. § 1383(c)(3). In his appeal to this Court, Rosenberg argues generally
that the RFC failed to properly account for all of the limitations caused by his
mental impairments.
II. STANDARD OF REVIEW
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
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.
III. FACTUAL BACKGROUND
As a child, Rosenberg was diagnosed with ADHD, intermittent
explosive disorder, impulse control disorder, mood disorder not otherwise
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specified (NOS), and cognitive disorder (NOS).3 T228–32. He was also
diagnosed with learning disabilities, and received special education services
throughout his childhood. T47, 339. As a young teenager, Rosenberg
participated in intensive psychiatric treatment. After other treatments
proved unsuccessful, Rosenberg was referred to an inpatient treatment
center in September 2008. T21, 44, 228–236, 365. Upon admission, Rosenberg
was diagnosed with (among other things) intermittent explosive disorder,
ADHD (NOS), learning disorder (NOS), and conduct disorder, childhood
onset, severe. T229. With treatment, Rosenberg's condition eventually
showed some improvement, and in December 2009, he was discharged. T37–
38, 45, 234–37, 302, 331, 339. Shortly thereafter, Rosenberg moved back in
with his grandparents, who had raised him as a child. T43. Rosenberg also
returned to school, although he stopped attending after completing the tenth
grade. T37.
Following his discharge, Rosenberg began outpatient therapy with
Stephanie Morse, LIMHP, and participated in weekly and monthly therapy
and counselling sessions. See T157, 383, 406–18. Rosenberg saw his primary
care physician, David G. Lindley, M.D., for medication management. See
T379–380, 420. From at least 2010, and for the entire period under
consideration, Rosenberg has generally taken the same combination of
prescription medications (with some adjustments in dosage). This includes
two drugs used as mood stabilizers, and another used to treat ADHD. See,
e.g., T160, 165, 181, 192, 237, 300, 406, 417, 429.
In June 2010, Morse wrote a letter identifying her concerns regarding
Rosenberg's ability to work in a public setting. T415. Morse wrote that
Rosenberg was highly irritable and could become enraged when things did
not go his way. She said he had trouble sustaining concentration and
understanding what he was told, and that he had difficulty compromising
and taking redirection from others. Morse wrote that he had a borderline IQ
and severe problems with thought processing. However, Morse's treatment
notes show that Rosenberg continued to work through therapy and
counselling and that over the course of several months, he made some
progress. See T406–18. This progress is also reflected in Morse's appraisal of
Rosenberg's Global Assessment of Functioning (GAF).4 In December 2009,
On the date of the ALJ's decision, Rosenberg was 20 years old. By that time, he had
already had an extensive history of treatment for his mental impairments. The Court has
fully reviewed the records from the years prior to Rosenberg's application for benefits;
however, the Court will discuss these records only briefly, as they do not reflect Rosenberg's
condition for the period under consideration.
3

A GAF is "the clinician's judgment of the individual's overall level of functioning," not
including impairments due to physical or environmental limitations. See American
4

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Morse rated Rosenberg's GAF as 50, and by mid-2011 she upgraded it to 55
or 60.5 T406, 418.
On July 16, 2010, Rosenberg met with Lloyd Lee Kimzey, Jr., Ph.D., for
a consultative psychological examination. T338. Kimzey's diagnoses were
ADHD, combined type, by history; intermittent explosive disorder; disruptive
behavior disorder (NOS); Arithmetic Disorder; Reading Disorder; and
Disorder of Written Language; as well as rule out personality disorder (NOS).
Kimzey assessed Rosenberg with a GAF of 45. T342. Kimzey wrote that
Rosenberg had no restrictions on his activities of daily living, but that in the
past, Rosenberg had experienced difficulty in maintaining social functioning.
T341. Kimzey also noted that it was likely that Rosenberg's behavior would
deteriorate under stress. T341. Kimzey concluded:
Sustained attention and concentration are somewhat impaired.
David does have the capacity to recall short simple instructions,
yet the manipulation of memory data is very difficult. He does
appear capable of carrying out instructions under ordinary levels
of supervision. Relating to coworkers and supervisors can be
reasonable yet caution with regard to boundaries will be
necessary. Adapting to environmental change is likely to be
difficult.
T342. Kimzey noted that Rosenberg was still receiving a high level of
outpatient care, but he "hoped that over time progress will be sufficient to
allow for independent functioning," although it was "likely that such
improvements will be slow developing." T342.
On August 6, 2010, agency consultant Patricia Newman, Ph.D.,
completed two forms: a Psychiatric Review Technique Form (PRTF) and a
Mental RFC Assessment. T353, 368. In the PRTF, Newman reviewed
Rosenberg's records and concluded that his mental conditions resulted in
moderate restrictions in his activities of daily living, and moderate difficulties
in maintaining social functioning and maintaining concentration, persistence,
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed.
2000) (hereinafter, "DSM-IV-TR"). The GAF scale is divided into ten ranges of functioning,
from 0 to 100, with a score of 100 representing superior functioning. Id. at 32–34.
A GAF of 41 to 50 signifies serious symptoms, such as thoughts of suicide, or any serious
impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a
job). DSM-IV-TR at 34. And a GAF of 51 to 60 signifies moderate symptoms or moderate
difficulty in the same areas of functioning (e.g., few friends, conflicts with peers or
coworkers). Id.
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or pace.6 T363. In the Mental RFC Assessment, Newman assessed
Rosenberg's ability to perform various work-related tasks. Newman generally
found that Rosenberg could understand, remember, and carry out short and
simple instructions, but was moderately limited when it came to handling
detailed instructions, maintaining concentration for an extended period, and
getting along with coworkers and the public.7 T368–70.
Newman explained that her findings were based upon mental status
examinations and intellectual testing, which showed low average to average
intellectual ability, attention, and concentration. She had also accounted for
Rosenberg's mood fluctuations and personality conditions. T370. Newman
acknowledged Rosenberg's history of institutionalization, but noted that with
treatment he was able to interact appropriately at home and in his group
therapy settings. Newman concluded that Rosenberg possessed the social
skills to work in many positions, although he would perform best in jobs
where he did not have to interact frequently with others. T370.
Over the following months, Rosenberg continued to meet with Morse
and Lindley. The record contains several (brief) treatment notes from Lindley
from this period. At a November 2010 appointment, Lindley wrote that
Rosenberg was doing "really well and he is very stable with no significant
problems." T379. In February 2011, Lindley wrote that Rosenberg was feeling
well overall with "no significant problems today." T380. And in December
2010, and February and April 2011, Lindley wrote that Rosenberg's ADHD
medication was "working well." T380, 420.
Rosenberg's grandmother, Mary Rosenberg, described her grandson's
functioning in a report from February 2011. T153, 160. She wrote that he had
a difficult time reasoning things out, and would become frustrated when
working on something that he did not understand. This frustration could lead
to verbal or physical aggression, or "shutting down and not performing the
task." She wrote that he had difficulty utilizing coping skills when he was
stressed, had trouble adapting to changes in his routine, needed "constant
prompts" to stay on task, had a very short attention span, and could not
understand long or difficult instructions. T153, 159. Mary stated that
Rosenberg had difficulty understanding monetary transactions and could not
shop by himself, and that his social skills were very limited, such that he had
a hard time interacting with people he did not know. T153. She estimated

This was on a scale from that ranged from "none" to "mild," "moderate," "marked," and
"extreme." T363.
6

This was on a scale that ranged from "no evidence of limitation" to "not significantly
limited," "moderately limited," and "markedly limited." T368.
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that he could pay attention for only about 10 minutes, and that he could only
follow simple, one or two-step instructions. T159.
Mary also described her grandson's daily activities. She wrote that she
had to remind him to perform activities of daily living, such as taking a
shower and putting on clean clothes. T153–54. Rosenberg helped around the
house with chores, such as yard work, cleaning his room, and feeding their
pets. T155. But Mary wrote that he needed prompts to do each task, and
"authority to make [him] do them." T155. He went to his counselor twice a
week and the community center once a week. And 5 days a week he was
taking GED classes, which lasted for 2 hours in the morning and 2 hours in
the afternoon. T157, 382.
On April 6, 2011, Rosenberg met with Kimzey for a second consultative
examination. T382. This time, Kimzey observed that Rosenberg was doing
quite well and that his condition and prognosis had improved since their last
visit. T385. Rosenberg was participating in outpatient therapy on a weekly
basis and individual and family counseling every other week. T383. His
grandmother, who had accompanied him to the examination, reported that
his mood tended to vary to some extent, and that on some days he was
irritable. But Rosenberg also said that he was happy most of the time and
reported no current emotional or behavioral difficulties. T383–84.
Kimzey's diagnoses remained roughly the same, but he upgraded
Rosenberg's GAF to 65.8 T385. Kimzey concluded that Rosenberg had no
restrictions in his activities of daily living, that his sustained attention and
concentration were "good for the current appointment with his medication
onboard," that he had the capacity to understand, recall, and carry out basic
instructions under ordinary supervision, and that he could adequately relate
to coworkers and supervisors. T384.
On April 11, 2011, agency consultant Linda Schmechel, Ph.D.,
completed an updated PRTF and Mental RFC Assessment. Like Newman,
Schmechel concluded that Rosenberg continued to have moderate difficulties
in social functioning. T396. But Schmechel found that Rosenberg's condition
had otherwise improved. Whereas Newman had found Rosenberg to have
moderate restrictions in activities of daily living and moderate difficulties in
maintaining concentration, persistence, or pace, Schmechel found no
restrictions on the former and only mild difficulties with the latter. Compare
T363 with 396.

A GAF of 61 to 70 signifies "[s]ome mild symptoms" or "some difficulty in social,
occupational, or school functioning" but generally shows that a person is "functioning pretty
well, [and] has some meaningful interpersonal relationships." DSM-IV-TR at 34.
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Schmechel's Mental RFC Assessment was more or less the same as
Newman's. For example, Schmechel found moderate limits, as opposed to no
significant limits, in Rosenberg's ability to understand and remember very
short and simple instructions. However, whereas Newman had opined that
Rosenberg was moderately limited in his ability to complete a normal
workday and workweek without interruptions from psychological symptoms
and to perform at a consistent pace, Schmechel found no significant
limitations in this category. Compare T368–69 with 401–02. In June 2011,
agency consultant Glenda L. Cottam, Ph.D., reviewed the records up to that
date and agreed with Schmechel's findings. T426–27.
In July 2011, Rosenberg met with Randall G. Sullivan, M.D., for
psychiatric treatment. Rosenberg reported that he was doing fairly well, and
was not certain he still needed to take his medications. His grandmother said
that his biggest problem was that he was unable to care for himself. She
explained that Rosenberg had difficulty managing money and even making
change, and that he made "bad personal decisions for himself." Sullivan's
diagnoses were similar to previous providers' diagnoses, and he rated
Rosenberg's GAF as 61 to 70. Sullivan recommended that Rosenberg continue
his current medications, although he would consider adjusting the dosages.
Sullivan also recommended that Rosenberg seek out vocational
rehabilitation. He concluded that with treatment and attention to
educational, occupational, and social issues, Rosenberg's prognosis would be
significantly improved. T428–31.
Rosenberg met with Sullivan once more in August 2011. T432.
Rosenberg and his grandmother reported he was doing fairly well, and
neither could identify any particular problems. He was doing "at least
moderately well" on the ADHD medication, and both Rosenberg and his
grandmother agreed that his attention and concentration were probably a bit
better, although he still appeared a bit fidgety and distractible. His anger
outbursts had been under good control, except for one relatively minor
occurrence. Sullivan agreed that Rosenberg appeared to be doing fairly well,
but questioned how reliable he and his grandmother were in their reports of
his behavior. T432. Sullivan continued Rosenberg on his medications, with
some adjustments, and raised his GAF to 71 to 80.9 T432–34.
In May 2012, the ALJ held a hearing at which Rosenberg and his
grandmother testified. Mary Rosenberg testified regarding her grandson's
A GAF of 71 to 80 range means that, "[i]f symptoms are present, they are transient and
expectable reactions to psychosocial stressors (e.g., difficulty concentrating after [a] family
argument;" and a score in this range signifies "no more than [a] slight impairment" in
functioning. DSM-IV-TR at 34.
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daily functioning and activities. She said that he liked to ride his bike, play
video games, and visit family and friends perhaps once or twice a week. T46,
49. He still helped "quite a bit" with chores around the house. T46, 52. She
testified that Rosenberg would play video games for as long as she allowed,
and that he also loved to read. T49; see also T319. Mary testified that he was
a loner and did not like crowds, although he generally got along "pretty good"
with people. Mostly he interacted only with his family and a few close friends.
T46, 50.
Rosenberg also testified briefly at the hearing, although it soon became
apparent that he was having some trouble understanding the questions, and
the ALJ noted that he was having difficulty getting Rosenberg to respond. He
did offer some testimony on his daily activities, explaining that he played
video games "a lot," which typically meant about an hour in the morning and
up to 9 hours a night. T53. Rosenberg also stated that he had taken a GED
test, and had passed several portions, but did not pass the entire test. T37–
38.
IV. ANALYSIS
Rosenberg asserts that the ALJ failed "to apply the 'disability
impairments' on [sic] the claimant's ability to perform actual work functions."
Filing 15 at 3–4. The Court understands Rosenberg to be arguing that the
ALJ erred by failing to incorporate all of the limitations caused by his mental
impairments into his RFC. Related to this argument, Rosenberg contends
that the RFC was not supported by sufficient medical evidence, and that the
ALJ failed to develop the record. He also asserts, briefly, that the ALJ failed
to address his inability to afford further treatment. Finally, Rosenberg
contends that the ALJ failed to address the "impact of a GAF score of 50 on
[his] ability to perform work on a full time basis." Filing 15 at 4. The Court
considers each argument in turn.
A. THE ALJ'S RFC DETERMINATION
To determine a claimant's RFC, the ALJ must consider the impact of
all the claimant's medically determinable impairments, even those previously
found to not be severe, as well as their related symptoms. 20 C.F.R.
§§ 416.929(d)(4), 416.945(a)(1) and (2). This determination requires a review
of all relevant evidence in the case record. 20 C.F.R. § 416.945(a). That
includes the statements by the claimant or others about the intensity,
persistence, and limiting effects of the claimant's symptoms. 20 C.F.R.
§ 416.929(c)(4). For mental impairments, the RFC determination involves a
detailed assessment of the claimant's ability to carry out the specific mental
requirements of work, such as the ability to understand, remember, and carry
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out instructions; and to respond appropriately to supervision, coworkers, and
work pressures in a work setting. See, 20 C.F.R. §§ 416.945(c) and
416.969a(c); SSR 96-8p, 1996 WL 374184 (July 2, 1996).
In this case, the ALJ found support for his RFC determination
primarily in the opinions of Kimzey, Schmechel, and Cottam. The RFC
essentially incorporated the limitations suggested by their opinions. The ALJ
gave significant weight to Kimzey's findings because he was able to examine
Rosenberg twice, and because his opinions were consistent with his
examination findings and with the record as a whole. T24. Specifically, the
ALJ gave significant weight to Kimzey's findings from April 2011, which
reflected Rosenberg's functioning during the period under consideration. And
the ALJ gave significant weight to the opinions of Schmechel and Cottam
because they had access to nearly all of the evidence at the time their
opinions were formulated, and because their opinions were consistent with
the record as a whole. Rosenberg does not argue that there was anything
lacking in these opinions or that it was improper to rely upon them, and the
Court likewise finds no error in the ALJ's decision to accord these opinions
significant weight.
The ALJ reasoned that, while Rosenberg had experienced more
significant limitations in the past, his condition for the period under
consideration was much improved, due to his increased maturity and a
consistent course of treatment. T25. Again, the ALJ's finding is reasonable
and supported by the record. Rosenberg's improvement is reflected not only
in Kimzey's opinions, but also in the treatment notes of Morse and Sullivan.
See T406, 418, 430–34.
There are only three sources in the record which suggested that further
limitations in Rosenberg's RFC were warranted: the reports and testimony of
Rosenberg and his grandmother, the June 2010 letter from Morse, and a May
2011 treatment note from Lindley (discussed below). The ALJ addressed
each. The ALJ determined that, to the extent Rosenberg and his
grandmother suggested more severe limitations, their reports and testimony
were not credible. T20, 25–26. And the ALJ found that Morse's letter did not
reflect Rosenberg's current level of functioning. T23. Finally, the ALJ
determined that (for several reasons discussed below) Lindley's opinion was
entitled to "very little weight." T25.
Rosenberg has not argued that the ALJ erred in any of these findings,
nor pointed to any particular error in the ALJ's reasoning. Nonetheless, the
Court has reviewed each of the ALJ's findings. As the Court explains next,
the ALJ's findings were based upon proper reasoning and supported by
substantial evidence.
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1. The ALJ's Credibility Determination
The credibility of a claimant's testimony is primarily for the ALJ to
decide, not the courts. Vossen v. Astrue, 612 F.3d 1011, 1017 (8th Cir. 2010).
In assessing the credibility of a claimant's testimony regarding his symptoms,
the ALJ must weigh a number of factors (known in the Eighth Circuit as the
Polaski factors). See Moore v. Astrue, 572 F.3d 520, 524 (8th Cir. 2009); see
also 20 C.F.R. § 416.929(c)(3)(i–vii).10 The ALJ's credibility determination will
be upheld if the ALJ provides good reasons for discounting the claimant's
subjective complaints—such as inconsistencies in the record, or the Polaski
factors—and those reasons are supported by substantial evidence. Gonzales,
465 F.3d at 895–96.
Here, the ALJ provided several reasons for discounting the subjective
complaints of Rosenberg and his grandmother, and those reasons were
certainly supported by substantial evidence. T20, 25–26. The Court finds it
unnecessary to discuss the ALJ's findings in great length. The ALJ's findings
speak for themselves, and Rosenberg has not offered any specific critique of
those findings. It is also worth noting that, for the most part, the ALJ
incorporated the limitations suggested by Rosenberg and his grandmother.
See T19–20.
Among other things, the ALJ observed that, "[w]hen questioned at the
hearing as to why he is currently unable to work, both [Rosenberg] and his
grandmother had difficulties coming up with a legitimate answer." T26. The
ALJ noted that Rosenberg's grandmother appeared to want him to remain
home so he could help his grandparents with chores that they could no longer
do themselves. T26, 46. The ALJ did not err in discounting her testimony on
this basis. Cf. Ownbey v. Shalala, 5 F.3d 342, 345 (8th Cir. 1993). This
finding also found support in Rosenberg's testimony. Later at the hearing,
Rosenberg's attorney asked him if he had "any understand[ing] as to why [he]
can't work," to which Rosenberg responded, "No, only my grandparents.
Usually they need help around the house. So I stay close to the house when
they need it." T53.
As to Rosenberg, the ALJ pointed to the following exchange at the
hearing:
The Polaski factors include: (1) the claimant's daily activities; (2) the duration, intensity,
and frequency of the claimed symptom; (3) the precipitating and aggravating factors; (4) the
dosage, effectiveness, and side effects of medication; (5) any functional restrictions; (6) the
claimant's work history; and (7) the absence of objective medical evidence to support the
claimant's complaints. Moore, 572 F.3d at 524 (citing Polaski v. Heckler, 739 F.2d 1320,
1322 (8th Cir. 1984)).
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Q [ALJ:] Sir, . . . [w]hat problems do you have that would keep
you from getting a job and keeping it?"
A [Rosenberg:] Just being lazy.
Q: That's honest anyway.
T26, 41–42. This testimony suggested a lack of motivation to return to
work—a factor the ALJ properly utilized in weighing Rosenberg's credibility.
See, e.g., Strongson v. Barnhart, 361 F.3d 1066, 1072–73 (8th Cir. 2004).
The ALJ also noted a statement Rosenberg made to Sullivan, in July
2011, that he was interested in finding a job doing bicycle repair, but that he
was not working because he could not find a job. T24, 428. While looking for
work does not prove a claimant can work, it does tend to show that the
claimant, at least, believes he might be able to work. That, in turn, reflects
negatively on the credibility of the claimant's representation that his
impairments prevent him from working.11 See Renstrom v. Astrue, 680 F.3d
1057, 1067 (8th Cir. 2012).
In sum, the ALJ provided well-founded reasons for discounting the
testimony of Rosenberg and his grandmother, and his credibility
determination will be upheld.
2. Morse's Opinion
Morse's June 2010 letter identified several concerns regarding
Rosenberg's ability to work in a public setting, including extreme irritability,
trouble concentrating, and difficulty working with others. T415. The ALJ
declined to give this opinion much weight, and the Court finds no error in
that regard. First, as the ALJ explained, this opinion was offered before the
full course of Rosenberg's treatment with Morse, in which he demonstrated
continued progress and improvement. T23. And the record shows that
Rosenberg's condition continued to improve, especially during the relevant
period. But Morse's opinion concerns Rosenberg's functioning in June 2010—
half a year before the relevant period. Additionally, during the relevant
period no other providers, including Morse, identified such severe limitations.
This (apparently isolated) attempt to find work does not undermine the ALJ's finding
that Rosenberg lacked the motivation to find work. Rather, it provides further support for
that finding. When asked by his attorney if he had attempted to find work, Rosenberg
testified that it was "not a good time to try to get a job as an assistant [at the bike shop]"
and that when he went there, the manager said "it's not a good time for me to have any
help right now. Too late in the summer. I said forget it then." T53.
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3. Lindley's Opinion
In May 2011, Rosenberg met Lindley for a medication refill. T419. In
his treatment notes, Lindley noted that Rosenberg was applying for
disability, and wrote:
I think with his psychiatric history, he ought to qualify for
disability without any problems to be honest. He has been
assessed by Dr. Kimzey multiple times. He is on multiple
medications, which I simply prescribe for maintenance, but I
think the chance of him holding down a job in the community is
remote.
T419. Lindley offered no further explanation for this opinion; and it was not
repeated in later notes from his visits with Rosenberg. See T435.
Lindley was Rosenberg's treating physician and was, therefore, a
"treating medical source." See 20 C.F.R. § 416.902. The opinion of a treating
source is generally entitled to greater weight than other sources. Anderson v.
Astrue, 696 F.3d 790, 793 (8th Cir. 2012). When it is supported by proper
medical testing, and is not inconsistent with other substantial evidence in the
record, the ALJ must give the opinion controlling weight. 20 C.F.R. §
416.927(c)(2); Anderson, 696 F.3d at 793. Conversely, when a treating
source's opinions are inconsistent or contrary to the medical evidence as a
whole, they are entitled to less weight. Krogmeier v. Barnhart, 294 F.3d 1019,
1023 (8th Cir. 2002).
The ALJ acknowledged Lindley's status as a treating source, but
decided to give his opinion very little weight. The ALJ provided several
reasons for this decision. First, opinions that a claimant is "disabled" or
"unable to work" concern issues reserved to the Commissioner and are not
the type of opinions which receive controlling weight. Vossen, 612 F.3d at
1015. Lindley's opinion was just that—he did not state how Rosenberg's
conditions resulted in functional limitations, or provide even a general
explanation for why he believed Rosenberg to be disabled. Second, the
opinion was not supported by any testing or explanation. It was not even
supported by Lindley's own treatment notes, which repeatedly stated that
Rosenberg was doing well and reporting no significant problems. See, T25,
379–80, 420. Finally, Lindley's opinion is inconsistent with the remainder of
the evidence from the relevant period, such as Kimzey's April 2011
evaluation and Rosenberg's later visits to Sullivan. T25, 382–84. In those
visits, Rosenberg reported that he was doing fairly well and could not identify
any particular problems; that his concentration and attention had improved;
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and that his outbursts were under control. T430–34. Viewing the entire
record, the Court perceives no error in the minimal weight the ALJ afforded
Lindley's opinion.
B. SUFFICIENT MEDICAL EVIDENCE AND DEVELOPMENT OF THE RECORD
Rosenberg next argues that the RFC determination was not supported
by sufficient medical evidence, and that the ALJ should have further
developed the record. Both arguments are without merit.
Because a claimant's RFC is a medical question, an ALJ's assessment
of it must be supported by some medical evidence of the claimant's ability to
function in the workplace. Cox v. Astrue, 495 F.3d 614, 619 (8th Cir. 2007).
Nevertheless, in evaluating a claimant's RFC, an ALJ is not limited to
considering medical evidence exclusively. Id. Even though the RFC
assessment draws from medical sources for support, it is ultimately an
administrative determination reserved to the Commissioner. Id. "When faced
with a conclusory opinion by a treating physician, the Commissioner need
only come forth with some medical evidence that the claimant can work."
Smallwood v. Chater, 65 F.3d 87, 89 (8th Cir. 1995) (quoting Frankl v.
Shalala, 47 F.3d 935, 938 (8th Cir. 1995)) (emphasis in original). In such a
case, an RFC assessment by a non-treating physician can constitute
substantial evidence. Id.
Here, the ALJ relied upon the opinion of Kimzey, who examined
Rosenberg, as well as the opinions of the non-examining agency consultants,
Schmechel and Cottam. The ALJ also conducted an independent review of
the medical evidence. Taken together, this constituted sufficient medical
evidence and substantial evidence on the record as a whole. See Krogmeier,
294 F.3d at 1024.
As such, the ALJ was under no obligation to further develop the record.
The ALJ does bear a responsibility to develop the record fairly and fully,
independent of the claimant's burden to press his case. Vossen, 612 F.3d at
1016. However, the burden of persuasion to prove disability and demonstrate
RFC remains on the claimant; and the ALJ is not obligated to seek further
information unless a crucial issue is undeveloped. Id. Rosenberg has not
identified any issue, crucial or otherwise, that was underdeveloped.
C. ABILITY TO AFFORD TREATMENT
Rosenberg next observes, in passing, that he lacked the funds to obtain
further treatment. Filing 15 at 11. He does not connect this observation to
any argument as to how the ALJ erred. As best as the Court can tell, he is
arguing that the ALJ failed to properly consider this factor.
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In June 2011, Rosenberg reported to Lindley that he had aged out of
Medicaid and could not afford his medications. T435. On June 30, Rosenberg
obtained refills of his medications through a medical assistance program. On
August 26, Rosenberg returned again, reporting that he had run out of
insurance and was struggling to get his medications. Lindley noted that
Rosenberg was stable, and gave him a 3-month supply of medication. They
discussed patient assistance programs, and Lindley wrote that he would do
what he could to help. T435.
Economic justifications for the lack of treatment can be relevant to a
disability determination. Murphy v. Sullivan, 953 F.2d 383, 386 (8th Cir.
1992). However, Rosenberg has offered no testimony or other evidence that
he has been denied further treatment or access to prescription medications on
account of financial constraints. It is true that the record contains no further
treatment notes, from August 2011 through the date of the ALJ's decision in
May 2012. However, Rosenberg did not testify, nor does he now claim that
this was because he was not receiving treatment.
To the contrary, the record shows that Rosenberg was still being
prescribed the same medications by Lindley in September 2011. T197. And at
the hearing, his grandmother testified that he was still taking his
medications, T47–48, and neither she or Rosenberg testified that he was
having trouble obtaining care. Additionally, the claimant's attorney
submitted a brief to the ALJ dated April 27, 2012, which did not suggest that
Rosenberg was having difficulty affording treatment. T198–215.
In sum, the ALJ did not err in failing to consider Rosenberg's inability
to obtain treatment.
D. ROSENBERG'S GAF SCORES
For his last argument, Rosenberg asserts that the ALJ failed to
properly account for his history of low GAF scores. Specifically, he asserts
that "[a]lthough the ALJ found the claimant's GAF to be 50, he did not
discuss the impact that a 50 GAF score would have on the claimant's ability
to perform the functions of ordinary labor." Filing 15 at 8. There are two
problems with this argument.
First, it is not supported by the record. The lowest GAF that Rosenberg
was assigned for the period under consideration was not 50, but was either 55
or 60, which was Morse's assessment in April 2011. T406.12 While a score of
50 is associated with serious symptoms, a score of 55 or 60 is associated with
Morse actually wrote Rosenberg's GAF score as "60/55." T406, 418. It is not clear what
Morse meant by this. However, it is reasonable to assume that one number represented
Rosenberg's current GAF, while the other number represented his GAF for another time
period, such as his highest GAF for the past year. See DSM-IV-TR at 33.
12

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moderate symptoms. Around the same time, Kimzey assessed Rosenberg's
score as 65, which is associated with only mild symptoms. T385; DSM-IV-TR
at 33. And Rosenberg's GAF continued to rise for the period under
consideration. By August 2011, Sullivan placed it at somewhere between 71
and 80, which signifies minimal symptoms or only a slight impairment in
functioning. T434; DSM-IV-TR at 33. Rosenberg has not presented the Court
with any reason to doubt these later scores, nor provided any evidence that
his GAF decreased thereafter.
Second, while GAF scores may be helpful in assessing disability, they
are not essential to determining an individual's RFC. Jones v. Astrue, 619
F.3d 963, 973 (8th Cir. 2010). The DSM-IV itself makes clear that a given
score may have little bearing on the subject's occupational functioning. Id.
That is because a GAF score measures two things—the severity of a subject's
symptoms as well as their level of functioning—and it always reflects the
worse of the two. DSM-IV at 32–33. So, the GAF rating for an individual who
is a significant danger to himself, but who is otherwise functioning well,
would be below 20. Id. at 33.
In determining Rosenberg's RFC, the ALJ considered his GAF scores.
See T22–24. But the ALJ also relied upon the record as a whole, and in
particular, the opinions of Kimzey, Schmechel, and Cottam, who offered
evidence that directly addressed Rosenberg's ability to function in the
workplace. And their opinions were, in fact, consistent with Rosenberg's
contemporary GAF scores. In sum, the ALJ did not err in his consideration of
Rosenberg's GAF scores.
V. CONCLUSION
The Court has reviewed the administrative record and finds that the
ALJ did not err in any of the ways asserted by Rosenberg. The Court
therefore concludes that the Commissioner's decision was supported by
substantial evidence and should be affirmed.
IT IS ORDERED:
1.

The Commissioner's decision is affirmed;

2.

Rosenberg's complaint is dismissed;

3.

The parties shall bear their own costs; and

4.

A separate judgment will be entered.
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Dated this 8th day of September, 2014.
BY THE COURT:

John M. Gerrard
United States District Judge

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