Palen v. Colvin

Filing 24

MEMORANDUM AND ORDER that the Commissioner's decision is affirmed. The appeal is denied and judgment in favor of the defendant will be entered in a separate document. Ordered by Chief Judge Laurie Smith Camp. (KMG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

JOHN A. PALEN,
Plaintiff,

CASE NO. 4:13CV3157

vs.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,

MEMORANDUM
AND ORDER

Defendant.

John A. Palen filed a complaint on September 4, 2013, against Carolyn W.
Colvin, the Acting Commissioner of the Social Security Administration. (ECF No. 1.)
Palen seeks a review of the Commissioner’s decision to deny his application for
disability insurance benefits under Title II of the Social Security Act (the Act), 42 U.S.C.
§§ 401 et seq., and supplemental security income benefits under Title XVI of the Act, 42
U.S.C. §§ 1381 et seq. The defendant has responded to Palen’s complaint by filing an
answer and a transcript of the administrative record. (See ECF Nos. 7-9). In addition,
pursuant to the order of Senior Judge Warren K. Urbom, dated November 13, 2013,
(ECF No. 14), each of the parties has submitted briefs in support of his or her position.
(See generally Pl.’s Br., ECF No. 17; Def.’s Br., ECF No. 22). After carefully reviewing
these materials, the court finds that the Commissioner’s decision should be affirmed.
I. PROCEDURAL HISTORY
Palen, who was born on January 7, 1962, (tr. 58) filed his applications on
January 31, 2011, and March 3, 2011. (Tr. 123-24, 125-30). He alleged an onset date of
January 7, 2010. (Tr. 245). Palen’s applications were denied initially on July 29, 2011,
and on reconsideration on October 19, 2011. (Tr. 63-67, 78-82). Palen requested a

hearing before an administrative law judge (ALJ) on November 2, 2011, (tr. 89) and a
hearing was held on May 18, 2012. (Tr. 29-56). On June 8, 2012, the ALJ found that
Palen had not been under a disability from the alleged onset date through the date of
the decision. (Tr. 11-28).
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. 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). The ALJ found that Palen had not been engaged in
substantial gainful activity since January 7, 2010, the alleged onset date. (Tr. 13).
However, he had earnings in 2010 and 2011. The ALJ stated that Palen’s work history
since the alleged disability onset date illustrated his ability to sustain work. (Tr. 13).
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), 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 12
months.”). 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, co-workers
and usual work situations”; and “[d]ealing with changes in a routine work setting.” 20
2

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 Palen had the following severe impairments: coronary artery disease, degenerative
disc disease, major depressive disorder/bipolar disorder, personality disorder with antisocial/narcissistic traits, and drug and alcohol abuse. (Tr. 13).
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 (20 C.F.R. §§ 416.920(d), 416.925 and 416.926). 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 Palen
did not have an impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments. (Tr. 14).
Step four requires the ALJ to consider the claimant’s residual functional capacity
(RFC)1 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. § 404.1520(a)(4)(iv), (f). The ALJ found that Palen was
unable to perform any past relevant work. (Tr. 20).
At step five, the ALJ must determine whether the claimant is able to do any other
work considering his RFC, age, education, and work experience. If the claimant is able
1

"'Residual functional capacity' is what the claimant is able to do despite limitations
caused by all of the claimant's impairments." Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir.
2000) (citing 20 C.F.R. § 404.1545(a)).
3

to do other work, he is not disabled. The ALJ found that Palen had the RFC to perform
light work as defined in 20 C.F.R. § 404.1567(b) and § 416.967(b), except he could not
climb ladders, ropes, or scaffolds and could not work at unprotected heights or with
dangerous unprotected machinery. He was limited to simple, routine, and repetitive
tasks with a maximum SVP of two2 and no more than occasional interaction with
supervisors, co-workers, and the general public. He was limited to few changes in a
routine work setting. (Tr. 16).
The ALJ found that Palen had acquired work skills from past relevant work that
were transferable to other occupations with jobs existing in significant numbers in the
national economy. (Tr. 22). Therefore, Palen had not been under a disability from
January 7, 2010, through the date of the decision. (Tr. 22). The Appeals Council denied
further review on July 1, 2013. (Tr. 1-6). Thus, the ALJ’s decision stands as the final
decision of the Commissioner, and it is from this decision that Palen seeks judicial
review.
II. FACTUAL BACKGROUND
A.

Medical Evidence
Palen asserted that he was disabled by his history of four heart attacks, a lower

back injury, major depressive disorder, and bipolar disorder.

2

“The [Specific Vocational Preparation] level listed for each occupation in the
[Dictionary of Occupational Titles] connotes the time needed to learn the techniques,
acquire the information, and develop the facility needed for average work performance.
At SVP level one, an occupation requires only a short demonstration, while level two
covers occupations that require more than a short demonstration but not more than one
month of vocational preparation.” Hulsey v. Astrue, 622 F.3d 917, 923 (8th Cir. 2010).
4

1. Heart Attacks
Palen’s first heart attack occurred on April 25, 2009. (Tr. 548). Palen underwent a
cardiac catheterization procedure and was discharged on April 29, 2009. (Tr. 542, 547).
By May 12, 2009, Palen had returned to work full-time as a cook at Whiskey Creek, but
he continued to smoke half a pack of cigarettes per day. (Tr. 520). Palen had no angina
symptoms and was advised to continue with his current medications and to quit
smoking. (Tr. 521).
Palen had another acute inferior myocardial infarction in August 2009. (Tr. 425).
He went through another catheterization procedure and had a stent placed in an artery.
(Tr. 419). At a two-week followup appointment, Palen was advised to avoid alcohol and
smoking and to begin cardiac rehabilitation. (Tr. 420). He did not see a physician again
until September 7, 2010, (tr. 518) when he reported that he continued to smoke, but he
seemed fairly motivated to quit. Palen denied any chest discomfort, shortness of breath,
or other heart concerns. (Tr. 518). He reported that he had not been taking heart
medications because the drug assistance program had stopped providing them about
four months after his procedure. He was directed to begin medications again. (Tr. 519).
In January 2011, Palen had another acute myocardial infarction. (Tr. 475). He
underwent coronary arteriography with stent revascularization of his infarct-related
coronary artery. (Tr. 275, 541). Treatment notes indicated that Palen would need longterm outpatient cardiac rehabilitation and continued antianginal therapy. (Tr. 286). Upon
discharge, Palen was directed to follow a cardiac diet and to go to cardiac rehabilitation.
(Tr. 476).
On February 10, 2011, Palen went to the emergency room after he had been
vomiting for three or four hours and had passed out. (Tr. 512). The next day, he went to
5

his cardiologist and reported continued dizziness and lightheadedness. (Tr. 512). He
was diagnosed with orthostatic hypotension, including vomiting, diarrhea, and weight
loss, complicated by medication therapy. (Tr. 513). His medications were adjusted. (Tr.
513). A 24-hour heart monitor showed normal sinus rhythm and no significant
arrhythmias. (Tr. 528). A week later, Palen reported feeling better and had no angina
symptoms. (Tr. 510). Palen reported completing cardiac rehabilitation a month later. (Tr.
507). A cardiac stress test in July 2011 was negative for ischemia. It showed sinus
bradycardia at rest. (Tr. 619). In August 2011, he was doing well with no angina
symptoms or limitation in his daily activities. Palen was encouraged to pursue tobacco
cessation and to add exercise to his regimen. (Tr. 662).
Palen went to the emergency room on January 26, 2012, for chest pain. (Tr.
724). He was diagnosed with angina, chest wall pain, esophageal reflux spasm,
myocardial infarction, pericarditis, pleuritis, and pneumonia. (Tr. 722). A cardiac stress
test on January 27, 2012, showed no evidence of obstructive coronary disease with
inducible myocardial ischemia or findings of previous myocardial infarction. (Tr. 651).
One month later, Palen reported an occasional-to-rare dull ache in his chest
which could occur when he was sitting. It did not wake him up at night. Palen remained
active although he did not have a regular exercise plan. (Tr. 657). The chest pain was
determined to be atypical and noncardiac in nature. (Tr. 658). His medications were
adjusted and he was encouraged to stop smoking, but he stated he had no interest in
becoming smoke-free at the time. (Tr. 659).
2. Lower Back Injury
Palen reported that he had back surgery in 1997 which resulted in the placement
of five screws and two rods and a bone fusion. (Tr. 40-41, 244). He told the consultative
6

examiner that he had pain in his lower back if he was too active and that he had
numbness in his right leg with activity, specifically bending and twisting. (Tr. 573). Palen
testified at the hearing that he missed work when he had problems with his back. (Tr.
36). In February 2011, a CT scan of the cervical spine showed moderate degenerative
disc disease C3 through C7. (Tr. 524). He took over-the-counter medication for pain.
(Tr. 40). Palen stated that he had had no injections in his back or physical therapy since
immediately after the surgery. He did not use a cane or walker. (Tr. 42).
3. Mental Health Issues
The record shows that Palen was hospitalized on several occasions for alcohol
abuse or mental health concerns. In February 2010, he was admitted to the Behavioral
Health Unit at Faith Regional Health Services in Norfolk, Nebraska, when he reported
that he was an alcoholic. (Tr. 401). His GAF3 upon admission was 25. (Tr. 402). Palen
had been living in a three-quarter-way house, but when he was advised he would no
longer be able to stay there, he became suicidal and relapsed on alcohol. He reported a
previous relapse in November 2009 after he lost his job. Prior to that he had been sober
for 15 months. Palen was stabilized on medication and individual and group
psychotherapy, and he participated well in all activities. His mood was good and his
affect was appropriate. (Tr. 396). He was medically and psychiatrically stable at the time
of discharge after three days in the hospital. He was directed to followup for medication

3

“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 mentalhealth 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) (hereinafter DSM-IV)). A GAF between 21 and 30 indicates serious
impairment in communications or judgment or an inability to function in all areas. DSMIV-TR at 34).
7

management and encouraged to attend Alcoholics Anonymous (AA) and seek individual
counseling. (Tr. 397).
Between July 11 and 16, 2010, Palen was in the hospital in Kearney, Nebraska,
after he voiced suicidal thoughts and depression. (Tr. 241). His GAF upon admission
was 35.4 (Tr. 244). Palen reported three prior suicide attempts by overdosing with
medications, the last in 2004, and four previous admissions to psychiatric hospitals. (Tr.
241, 243). Palen took part in individual and group counseling. He exhibited significant
mood improvement and was considered stable. His GAF upon discharge was 60.5 He
was discharged to a substance abuse program in Norfolk. (Tr. 241).
In a drug and alcohol abuse evaluation while hospitalized, Palen stated that he
had been sober between October 2008 and January 2010, but when he lost his job he
began drinking and gradually progressed to drinking daily up until he sought treatment.
He was in treatment for two weeks, walked away, had a relapse, and then became
suicidal. (Tr. 250). Palen stated that he was first diagnosed with depression in 1986. (Tr.
251). He stated he had been to residential programs nine times and had recently been
seeing a therapist on an outpatient basis. (Tr. 251). Palen indicated that when he began
to feel successful, he tended to relapse and sabotage the success. It was
recommended that he attend intensive outpatient treatment as well as following up with
AA or Narcotics Anonymous (NA). (Tr. 252).
Palen was admitted to the hospital again on July 23, 2010, after he went to the
police department and reported that he was suicidal. (Tr. 358). He reported that he used

4

A GAF between 31 and 40 indicates major impairment in several areas, such as work
or school, family relations, judgment, thinking, or mood. DSM-IV-TR at 34.
5
A GAF between 51 and 60 indicates moderate symptoms or any moderate difficulty in
social, occupational, or school functioning. DSM-IV-TR.
8

alcohol to numb pain he had from his teeth. (Tr. 358). Palen stated he did not have
money for needed dental procedures. (Tr. 366). His blood alcohol level on admission
was .270. By the time he was admitted to the hospital, he denied current suicidal or
homicidal ideation and denied any symptoms of psychosis. (Tr. 358). He was stabilized
on medication and individual and group psychotherapy, and his mood improved. He
was diagnosed with alcohol dependence, major depressive disorder, recurrent by
history, and personality disorder, not otherwise specified. His GAF was 53. (Tr. 358). He
was discharged after 10 days and was medically and psychiatrically stable. (Tr. 359).
A chemical dependency evaluation completed while Palen was in the hospital
noted that Palen had previously received treatment, lived at a halfway house, relapsed,
received treatment, and relapsed again and was asked to leave. Palen said he had a
difficult time following the rules and staying sober. Palen said he would binge drink for
four to five days and then would be sober for four to five days. He left another treatment
program after two weeks because he could not get along with residents or staff and he
was having suicidal thoughts. He was placed at Richard Young for treatment for six
days. (Tr. 366).
At the time, Palen was unemployed. He reported he was fired from Taco John’s
after he threatened to call the corporate office regarding his garnishments. He lost
another job at ABM Janitorial when he went to treatment. He owed $28,000 in back
child support and 65 percent of his income was being garnished for it. He stated he felt
helpless and hopeless about the debt. (Tr. 366).
It was recommended that Palen be stabilized in inpatient care and participate in
therapy services. (Tr. 367). His symptoms of helplessness and hopelessness needed to
be examined and improved prior to discharge. Following discharge, it was
9

recommended that he participate in a long-term treatment program. However, Palen
reported that he hated people and had a history of not getting along with others, which
interfered with his treatment potential. If he was unable to take part in group therapy
because of his dislike of others, it was noted that individual therapy might be the best
option, but there were also significant risks associated with individual therapy due to his
chronic alcohol use and psychosocial stressors. (Tr. 367).
On August 17, 2010, Palen was again admitted to the hospital after he reported
that he had relapsed and started smoking marijuana and methamphetamine on August
6, 2010, and started drinking alcohol on August 15, 2010. (Tr. 334). He voluntarily went
to the Behavioral Health Unit, reporting a depressed mood, poor sleep, low energy,
crying spells, hopelessness, and helplessness. He stated that the first thing he thought
about in the morning was alcohol and that he had been very unsuccessful in trying to
cut down on alcohol. (Tr. 334). His GAF upon admission was 30. (Tr. 339). He was
stabilized on medication and individual and group psychotherapy. He was discharged
on September 2, 2010, to Catholic Charities and was medically and psychiatrically
stable with a GAF of 59. (Tr. 334-35).
On September 22, 2010, Palen was admitted to the hospital after he attended an
AA meeting and then took an overdose of several medications. (Tr. 317). He was
stabilized with medications and individual and group psychotherapy. His affect was
appropriate and his insight and judgment appeared adequate. (Tr. 317). His GAF was
57. Palen was discharged after seven days and advised to followup with a physician for
medication management. He declined an appointment with a therapist. (Tr. 318).
Teresa Reinhart, PMHNP, BC, completed a psychiatric evaluation of Palen on
December 15, 2010. (Tr. 490). Palen reported that his depression started when he was
10

26. He reported that he had been depressed every day for the last two weeks and felt
hopeless and depressed more days than not for the previous two years. He took
medication to help him sleep. He suffered with anhedonia. Palen said he preferred to
sleep all day and had to force himself to eat. He had poor motivation. He had attempted
suicide twice in the last year and two times prior to that. (Tr. 490). In the previous year,
Palen had been hospitalized for mental health issues three or four times. (Tr. 491). He
stated that he had tried 15 different antidepressants, but nothing seemed to change. He
started drinking alcohol at age 12 and then progressed to heavy drinking when he was
in his early 20s. He had three periods of sobriety, ranging from three months to three
years. (Tr. 491). Reinhart’s diagnostic impression was bipolar I, obsessive-compulsive
disorder, nicotine and alcohol dependence, and cannabis abuse. His GAF was 50. 6 (Tr.
493).
On March 15, 2011, Palen went through an initial evaluation with a psychiatrist,
Tayo Obatusin, M.D. (Tr. 559). Palen reported that he was doing extremely well despite
his medical problems. He described his mood as stable, denied any anxiety, and had an
appropriate affect. He was diagnosed with bipolar disorder, not otherwise specified,
nicotine and alcohol dependence, and methamphetamine abuse. His GAF was 59. (Tr.
559).
Palen continued to see Dr. Obatusin for medication management and followup.
(Tr. 558). In March 2011, Palen reported he was mildly depressed and stressed by
financial difficulties and unemployment. He felt frustrated because disability had not

6

A GAF between 41 and 50 indicates serious symptoms or any serious impairment in
social, occupational, or school financing. DSM-IV-TR.
11

been approved. Palen confirmed that he was noncompliant with some of his
medications. (Tr. 558). His GAF was 57. (Tr. 558).
In April 2011, Palen reported that he was frustrated because he had not been
able to get a job and was having financial difficulties, but he denied any depressive
symptoms. (Tr. 556). He had appropriate affect and his GAF was 58. (Tr. 556). In May
2011, Palen reported poor appetite, depressed mood, and poor concentration. He had
been noncompliant with his medications at least two to three times per week. Palen
denied any current suicidal or homicidal ideations. He had appropriate affect and his
GAF was 59. (Tr. 555).
In July 2011, Palen complained of mild depressive symptoms. He said he was
stressed from the loss of his job two weeks earlier. Palen stated that he would be going
to jail, possibly in the next week, for failure to pay child support. He reported fair
appetite and low energy, but he denied suicidal or homicidal ideations. He had
appropriate affect, and his GAF was 60. (Tr. 554). In August 2011, Palen reported that
he was sad because he had not been able to pay his child support. His stressors were
loneliness and chronic mental illness. Palen had started working two weeks earlier. His
affect was blunted, and his GAF was 65.7 (Tr. 673).
In September 2011, Palen’s community support worker reported that Palen was
doing extremely well. He had two part-time jobs, described his mood as stable, and his
appetite had improved. His GAF was 70. (Tr. 672). In October 2011, Palen’s mood was

7

A GAF between 61 and 70 indicates some mild symptoms or some difficulty in social,
occupational, or school functioning, but generally functions pretty well and has some
meaningful interpersonal relationships. DSM-IV-TR at 34.
12

stable and his affect was appropriate. His GAF was 75.8 (Tr. 671). In November 2011,
Palen reported his mood was stable. He was struggling to work part-time. (Tr. 670).
In January 2012, Palen described his mood as better, but he stated that he had
some depression secondary to loneliness over the holidays. Palen said he took his
medication about 90 percent of the time. He stated that he had not been following up
with his therapist because of financial difficulties. He was smoking 15 cigarettes a day.
His GAF was 75. (Tr. 668). A few weeks later, Palen reported that he was compliant
with his medications and was working at a grocery store. He was not attending AA or
NA, but he denied any craving for drugs or alcohol. (Tr. 667). In March 2012, Palen
reported that he had missed his medications three times in the last week. His mood was
stable and he had appropriate affect. It was recommended that Palen begin individual
psychotherapy as soon as he was financially stable. (Tr. 666).
On April 5, 2012, Palen was admitted to the hospital after he relapsed on alcohol.
(Tr. 708). His GAF was 30, and his blood alcohol level was .295. (Tr. 674, 678). He had
poor appetite, low energy, crying spells, and was helpless. He was also concerned that
he might lose his job. His mood was euthymic. (Tr. 708). When he was discharged on
April 9, 2012, his GAF was 55. He had participated in group, individual, and milieu
therapy and was involved in relapse prevention therapy. Palen was no longer
imminently dangerous to himself or others. (Tr. 674-75). He had appropriate affect. (Tr.
677).

8

A GAF between 71 and 80 indicates that if symptoms are present, they are transient
and expectable reactions to psychosocial stresses, no more than slight impairment in
social, occupational, or school functioning. DSM-IV-TR at 34.
13

B.

Medical Opinion Evidence
John J. Curran, Ph.D., completed a psychological interview on June 22, 2011.

(Tr. 561). Palen reported that he was looking for work after having lost a job in fast food
after he missed a couple of days without calling in. (Tr. 564). He reported that he had
worked more than 100 jobs, but he quickly became unhappy with the job and missed
work. He was able to take care of himself and dress and feed himself. (Tr. 564). Palen
stated that his last use of alcohol was in October 2010. (Tr. 565).
Curran stated that Palen exhibited a broad range of affect in the interview. (Tr.
567). There was a restriction of activities of daily living. When depressed, Palen
reported being tired and sleeping much of the day. He complained of poor
concentration, but he did quite well in the mental status exam. He demonstrated
difficulties in maintaining social functioning. Curran stated that Palen appeared to have
the ability to sustain concentration and attention needed for task completion. He had the
ability to understand and remember short and simple instructions. He did not have the
ability to carry them out under ordinary supervision. He would need frequent rest breaks
and a supportive supervisor. He had the ability to relate appropriately to coworkers and
supervisors and to adapt to changes in his environment. (Tr. 568). Curran diagnosed
Palen as having alcohol dependence in early full remission, bipolar I disorder, and
nicotine dependence. (Tr. 568). His current GAF was 55 and the highest GAF in the
past year had been 68. (Tr. 569). Curran stated that Palen’s prognosis was difficult to
estimate because it was dependent on his sobriety. If Palen maintained his sobriety, his
functioning would be better and he would follow through with routine medical care. The
medications he was taking did not seem to be treating his depression very well. Curran
recommended that Palen take part in individual therapy. (Tr. 569).
14

Ryan Clauson, M.D., conducted a consultative examination on June 27, 2011.
(Tr. 572). The report noted that Palen had applied for disability for the second time.
Palen reported that he continued to have chest pain at rest, which could occur every
couple of minutes. (Tr. 572). Palen stated he had pain in his lower back if he was too
active. He also had numbness in his right leg with activity, specifically bending and
twisting. (Tr. 573). Palen reported that he had been on at least 20 different medications
for bipolar disorder and major depressive disorder. Palen said he had not had alcohol in
a couple of months. He smoked four cigarettes a day. (Tr. 573). He was not working,
but was looking for employment. (Tr. 574). His affect was flat. Palen had normal
ambulation and gait and could get on and off the examining table. He had some pain in
the lumbar spine while being tested for range of motion. (Tr. 574). His cervical spine
showed normal range of motion. (Tr. 575). He was able to walk on his toes and heels
and to squat. (Tr. 576). Dr. Clauson stated that Palen had no limitations in using his
upper and lower extremities. He was able to sit for approximately 20 minutes and could
stand for long periods of time. His walking, lifting, and bending over were somewhat
limited because his right leg began to hurt. He could carry objects weighing up to 15 to
20 pounds. He appeared to have good dexterity. He could hear and speak well and
would be able to travel. (Tr. 577).
On June 27, 2011, Patricia Newman, Ph.D., completed a mental RFC
assessment. (Tr. 582-84). She determined that Palen had no limitations in
understanding and memory. In the area of sustained concentration and persistence, the
only moderate limitation was in the ability to perform activities within a schedule,
maintain regular attendance, and be punctual within customary tolerances. (Tr. 582).
Newman stated that Palen had a history of substance abuse and absenteeism from
15

employment and would have moderate limitations in maintaining a schedule. (Tr. 584).
In the area of social interaction, Palen had no limitations in the ability to ask simple
questions or request assistance, the ability to get along with coworkers or peers without
distracting them or exhibiting behavioral extremes, and the ability to maintain socially
appropriate behavior and to adhere to basic standards of neatness and cleanliness. He
had moderate limitations in the ability to interact appropriately with the general public
and to accept instructions and respond appropriately to criticism from supervisors. (Tr.
583). Palen noted that he had difficulty with people and personality disorder features.
However, he responded appropriately with his treating sources and was able to attend
treatment programs and run errands. (Tr. 584). Palen had no limitations in the ability 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, or to set realistic goals or make plans independently of others. (Tr. 583).
Newman also completed a psychiatric review technique on June 27, 2011. (Tr.
587-601). She indicated that Palen had medically determinable impairments but they
did not precisely satisfy the diagnostic criteria for affective, personality, or substance
addiction disorders. (Tr. 590-95). Newman determined that Palen had mild limitation in
activities of daily living, and moderate limitations in maintaining social functioning and
maintaining concentration, persistence, or pace. (Tr. 597). There was insufficient
evidence of any episodes of decompensation. (Tr. 597). Newman stated that Palen was
considered partially credible because he was not completely forthcoming about his
alcohol use. (Tr. 598).
A.R. Hohensee, M.D., completed a physical RFC assessment on July 27, 2011.
(Tr. 603-11). He stated that Palen could occasionally lift and/or carry up to 20 pounds
16

and could frequently lift and/or carry up to 10 pounds. (Tr. 604). He could stand and/or
walk and sit for about six hours in an eight-hour workday. (Tr. 604). He was unlimited in
the ability to push and/or pull. (Tr. 604). He could frequently climb and balance, and
occasionally kneel, crouch, and crawl. He could only occasionally climb a ladder. (Tr.
605). He had no manipulative, visual, or communicative limitations. (Tr. 606-07). He
should avoid concentrated exposure to extreme cold and heat, humidity, and fumes and
odors because of early chronic obstructive pulmonary disease. (Tr. 607). He had no
restrictions related to moisture, noise, or vibration. (Tr. 607). Dr. Hohensee noted that a
consultative examination provider suggested limitations consistent with light work. (Tr.
609). Dr. Hohensee noted that the evidence did not indicate any frequent back pain and
he believed Palen’s back condition was stable. (Tr. 610). The evidence suggested
Palen had done well since the last heart attack and stent placement. The pain reported
during the consultative examination was atypical. The general physical examination was
basically normal and Palen was noted to have range of motion in all major joints. Dr.
Hohensee stated that Palen should be capable of limited work as noted in the RFC
assessment. (Tr. 610).
On October 13, 2011, Linda Schmechel, Ph.D., completed a psychiatric review
technique. (Tr. 640-41). She stated that Palen reported poor concentration, but he did
well on an examination. He had good cooperation and expressed himself well on
examination. Although a physician suggested Palen would need frequent breaks and a
supportive supervisor, Schmechel said the need for frequent breaks was not well
supported. Evidence suggested Palen had an ability to carry out simple instructions
without extra supervision. She affirmed the mental health RFC and psychiatric review
technique of June 7, 2011. (Tr. 641).
17

Glen Knosp, M.D., completed a physical RFC assessment on October 14, 2011.
(Tr. 642). Dr. Knosp stated that there was no indication that Palen could not sit longer
than 20 minutes as suggested by Dr. Clauson because Palen was able to sit longer
during the psychological consultative examination. Dr. Knosp affirmed the RFC of July
27, 2011. (Tr. 642).
C.

Hearing Evidence
At a hearing on May 18, 2012, Palen stated that he became disabled on January

7, 2010. (Tr. 33). At the time of the hearing, he was working about 25 hours per week at
Bomgaar’s, where he cleaned, painted, and put out freight. (Tr. 35). He was allowed to
lift between 15 and 20 pounds. He had worked there for nine months and earned $7.55
per hour. (Tr. 35). Palen said he missed seven to eight days of work a month because
he got stressed or had problems with his back. (Tr. 36). He had lost his driver’s license
in 2007, but he had not tried to get it back because he could not afford it. (Tr. 36).
Palen shared his work history. Since January 2010, Palen said he had worked as
a cook, in which he occasionally lifted 40-pound bags of food, but he tried to have
someone else lift them. (Tr. 36-37). Palen said he was fired because he missed a
number of days of work. (Tr. 37). He said he had worked temporarily in a factory making
seats. He was fired from his job as a prep cook at Whiskey Creek Steakhouse after he
had words with the manager. (Tr. 37). Palen had worked as a technician at Houses of
Hope in Lincoln, Nebraska, where he oversaw the house and bought groceries. (Tr. 38).
He lifted grocery bags up to 30 pounds. He left the job when he moved to Columbus,
Nebraska. He had worked in construction when he built hog confinements. He lifted up
to 100 pounds, but he left because it was too much physical strain. Palen said he could
not work full-time because he missed work when he was stressed, from his back, or
18

from chest pain after having had four heart attacks. (Tr. 38). He said physicians had told
him not to lift more than 15 to 20 pounds. (Tr. 39).
Palen said he took medications for bipolar and major depressive disorders and
for heart disease. (Tr. 40). Palen said the medications did not help, but he had no side
effects from them. Palen said he had constant pain in his back from simple day-to-day
bending, lifting, and twisting. He took over-the-counter pain medications. (Tr. 40). He
said he had chest pain almost all the time, shortness of breath, and was fatigued very
easily. (Tr. 40). Palen said he had three stents in his heart, but had no bypass surgery.
(Tr. 41).
Palen said his mental problems manifested themselves when he was stressed
and could not keep his mind on what he was doing. He said he was stressed by day-today life and there was no one thing that caused his depression. (Tr. 42). When his
depression began, he could not be around people so he stayed in his apartment and did
not go anywhere. (Tr. 43). In the last month, he had been depressed for three weeks.
He did not go to any kind of therapy because he had no insurance and could not afford
it. He said he was trying to quit smoking and probably smoked about a fourth of a pack
each day. Palen said he had last drunk alcohol more than 30 days previously. There
was an isolated incident in which he drank for a couple of days because of his
depression and he ended up in the hospital psychiatric ward for five days. (Tr. 43).
Palen said he could sit about 15 minutes, and he did not have a problem with
standing. He could walk about 15 minutes. (Tr. 44). Palen said he had problems getting
along with other people, including authoritative figures and coworkers, because he did
not take direction well. (Tr. 44, 49) When criticized, he talked back, and that had caused
him to lose jobs. (Tr. 50). In a typical day, Palen said he worked three hours in the
19

morning and then spent a good share of the day at the Liberty Center, which is a
daytime rehabilitation center for people with mental illness. Then he went home and
watched television. (Tr. 45). At the Liberty Center, he helped cook, helped with
decorations, or helped with whatever needed to be done. (Tr. 45). He fixed microwave
meals, but also said he did not have much of an appetite. (Tr. 46). Palen said he did the
laundry once a week and vacuumed or swept a couple of times a month. (Tr. 46). About
the only time Palen left his apartment was to go to work or to the Liberty Center. (Tr.
46). Palen said he had no hobbies. (Tr. 47).
The ALJ asked Gale Leonhardt, vocational expert (VE), whether an individual
with the following restrictions could perform any of Palen’s past jobs: restricted to light
work, could not climb ladders, ropes or scaffolds, could not work at unprotected heights
or with dangerous, unprotected machinery, was limited to simple, routine and repetitive
work, with only occasional interaction with supervisors, coworkers and the public, and
few changes in the routine work setting. (Tr. 53). Leonhardt stated that such an
individual could work in fast food because it was light and unskilled. (Tr. 53). Leonhardt
identified other jobs that Palen could work at: production assembler, light and unskilled;
hand packager, light; and housekeeping cleaner, light and unskilled. Leonhardt said
there were 1,928 jobs as production assembler in the four-state region of Iowa,
Nebraska, Missouri, and Kansas, and 40,998 jobs in the United States. There were
14,148 jobs as hand packager in the four-state region and 311,534 jobs in the United
States. There were 16,638 jobs as housekeeping cleaner in the four-state region and
366,755 jobs in the United States. (Tr. 54). If the hypothetical individual was restricted to
sedentary work, he or she could work as a hand packager, which also existed at the
sedentary, unskilled level. There were approximately 1,000 jobs in the four-state region
20

and 21,485 jobs in the United States. The individual could also work as an office helper,
which is a sedentary, unskilled job that had 4,645 jobs in the region and 96,041 jobs in
the United States. (Tr. 54). The individual could work as an information clerk, which was
sedentary and unskilled with 3,613 jobs in the region and 83,237 jobs in the United
States. (Tr. 54-55). Leonhardt stated that a person with the marked limitations identified
by Dr. Obatusin would not be able to be competitively employed. (Tr. 55).
D.

Additional Evidence
Palen stated that he stopped working on August 26, 2010, although he believed

his condition had become severe enough to keep him from working on January 7, 1988.
(Tr. 153). On a supplemental disability report completed on February 25, 2011, Palen
said he is not very sociable and has to force himself to visit others, except he spent time
at the Liberty Center where he could talk about his mental illness. When he was
depressed, he did not leave his apartment, but there were days when he could leave
because of the manic part of the bipolar disorder. (Tr. 188). He said most of his family
stayed away from him and he had no close friends. Palen stated he did not get along
with people at all, or if he did, it was superficial depending on the day and where his
mental illness took him. He said most people did not like him. Palen said he prepared
microwavable meals, did the dishes every other day, did laundry about every other
week, and cleaned about every seven to 10 days. (Tr. 188). Palen stated that he did no
outside chores because of his heart attacks and physical strain on his lower back. (Tr.
189). He stated he did his own errands. Palen said he had no hobbies. (Tr. 189). He
said he had problems getting to sleep and staying asleep. (Tr. 190). Palen stated that
his heart attacks left him with little energy and his mental illness caused him not to care

21

about anything unless he was on the manic side. He said his dislike of being around
people made it hard to find and keep a job. (Tr. 190).
III. STANDARD OF REVIEW
This court 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.”).
This court 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.”
22

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,
supra, 648 F.3d at 871 (indicating that the question of whether the ALJ’s decision is
based on legal error is reviewed de novo).
IV.
A.

ANALYSIS

Opinion of Dr. Obatusin
Palen argues that the ALJ erred in failing to accept as controlling the limitations

and restrictions placed on him by Dr. Obatusin, Palen’s psychiatrist. (Pl.’s Br. at 9).
Palen asserts that the ALJ dismissed Dr. Obatusin’s opinion while placing greater value
on the opinions of the state agency psychologists who had no professional contact with
him, did not hear him testify, and did not have access to all the medical records in the
case. (Pl.’s Br. at 12).
Dr. Obatusin completed a mental impairment evaluation on November 21, 2011.
(Tr. 644-50). He stated that Palen had bipolar disorder that was moderate to severe,
had been present for more than one year, and was expected to last for more than one
year. The impairment caused Palen to be unable to perform his previous job. (Tr. 644).
Dr. Obatusin stated that Palen’s condition had improved in nine months of treatment,
but Palen’s prognosis was guarded. Dr. Obatusin stated that Palen was not a
malingerer. (Tr. 645). Dr. Obatusin stated that Palen had moderate limitations in the
ability to complete a normal weekday and workweek without interruptions from
psychologically based symptoms, to interact appropriately with the general public, and
to ask simple questions or request assistance. (Tr. 648). Palen had marked limitations
in the ability to make simple work-related decisions, to accept instructions and respond
appropriately to criticism from supervisors, to get along with coworkers or peers without
23

distracting them, and to maintain socially appropriate behavior and to adhere to basic
standards of neatness and cleanliness. (Tr. 648). Palen had moderate limitations in the
ability to set realistic goals or make plans independently of others. Dr. Obatusin stated
that Palen had marked limitations in the ability to respond appropriately to changes in
the work setting, to be aware of normal hazards and take appropriate precautions, and
to travel in unfamiliar places or use public transportation. (Tr. 649). Dr. Obatusin stated
that Palen could work from zero to three days per week. (Tr. 649). He stated that Palen
needed approval for social security disability to prolong his life, avoid malnutrition, and
enable him to pay his co-pay. (Tr. 650).
The ALJ gave little weight to Dr. Obatusin’s opinion, finding it inconsistent with
Dr. Obatusin’s treatment notes that showed very high GAF scores. In addition, the ALJ
noted that disability is not awarded because an individual needs financial help, but
instead is awarded to assist individuals who are unable to perform any job. (Tr. 19).
An ALJ must give a treating physician’s opinion controlling weight if it is well
supported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with other substantial evidence in the record. Brace v. Astrue, 578 F.3d
882, 885 (8th Cir. 2009), citing 20 C.F.R. §§ 404.1527(d)(2), 416.927 (d)(2). If the
opinion fails to meet these criteria, however, the ALJ need not accept it. Brace, 578
F.3d at 885. An ALJ is warranted in discrediting some of the treating physician's
opinions, in light of other inconsistent or contradictory evidence in the record. Weber v.
Apfel, 164 F.3d 431 (8th Cir. 1999).
“When one-time consultants dispute a treating physician's opinion, the ALJ must
resolve the conflict between those opinions.” Cantrell v. Apfel, 231 F. 3d 1104, 1107
(8th Cir. 2000). Generally, the report of a consulting physician who examined a claimant
24

once does not constitute substantial evidence upon the record as a whole, especially
when contradicted by the evaluation of the claimant's treating physician. Id., citing
Lanning v. Heckler, 777 F.2d 1316, 1318 (8th Cir.1985). However, there are two
exceptions.
An ALJ's decision to “discount or even disregard the opinion of a treating
physician” will be upheld where other medical assessments “are supported by better or
more thorough medical evidence,” or “where a treating physician renders inconsistent
opinions that undermine the credibility of such opinions.” Cantrell v. Apfel, supra
(internal citations omitted).
An ALJ has the duty, at step four, to formulate the claimant’s RFC based on all
the relevant, credible evidence of record, including medical records, observations of
treating physicians and others, and an individual’s own description of his limitations.
McKinney v. Apfel, 228 F. 3d 860, 863 (8th Cir. 2000). The ALJ is not required to rely
entirely on a particular physician's opinion or choose between the opinions of any of the
claimant's physicians. Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011).
The ALJ found that Palen’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms, but Palen’s statements
concerning the intensity, persistence, and limiting effects of the symptoms were not
credible because they were inconsistent with the RFC assessment. (Tr. 16). Palen
testified that chest pain prevented him from working. However, the ALJ noted that Palen
had received infrequent treatment for his cardiac condition and the records did not
corroborate his alleged limitations. Palen had a heart attack in April 2009 and
underwent angioplasty and stent placement. (Tr. 16). At his two-week checkup, he was
doing well. He did not return to his cardiologist until September 2010. He stopped taking
25

medication after the drug assistance program stopped paying for it. He exercised and
walked two to three miles twice a week. He had another heart attack in January 2011
and again underwent a cardiac catheterization and stent placement. (Tr. 17). His
cardiologist noted that Palen remained angina free during a July 2011 mildly abnormal
stress test and he had no limitations in his daily activities. In January 2012, Palen
complained of chest pain, but a stress test was normal without evidence of obstructive
coronary disease. In February 2012, Palen reported occasional-to-rare aching in his
chest of short duration about once per week. His cardiologist noted that his recent chest
pain was atypical and noncardiac and highlighted Palen’s recent negative stress test.
(Tr. 17).
Palen also testified to back pain, but the ALJ found that Palen rarely sought
medical attention for back pain. When hospitalized for psychiatric issues in July 2010,
he complained of chronic back pain, but it was very mild. Palen stated that he
occasionally took ibuprofen for pain. A February 2011 CT scan of his cervical spine
showed moderate degenerative disc disease from C3 to C7. He walked with an upright
posture and a quick and steady gait. He had walked to his consultative examination.
(Tr.17).
Dr. Obatusin’s treatment notes were inconsistent with his opinion. During the
time Palen was undergoing treatment, Dr. Obatusin assigned GAF scores ranging from
57 to 80. At Palen’s initial evaluation in March 2011, he reported that he was doing
extremely well and denied any anxiety. (Tr. 559). He reported mild depression and
stress from financial difficulties. (Tr. 558). In April 2011, Palen denied any depressive
symptoms, and Dr. Obatusin noted that Palen’s affect was appropriate. (Tr. 556). In
May 2011, Palen reported poor appetite, depressed mood, and poor concentration. He
26

had been noncompliant with his medications at least two to three times per week. (Tr.
555). Palen continued to complain of mild depressive symptoms and stress from the
loss of a job in July 2011. (Tr. 554). In August 2011, Palen reported that he was sad
because he had not been able to pay his child support. (Tr. 673). But in September
2011, Palen’s community support worker reported that Palen was doing extremely well.
(Tr. 672). In October 2011, Palen’s mood was stable and his affect was appropriate. (Tr.
671). In January 2012, Palen described his mood as better. (Tr. 668). By March 2012,
Palen’s mood was stable and he had appropriate affect. (Tr. 666). On several occasions
during treatment, Palen reported that he had been noncompliant with his medications.
(Tr. 666). Thus, the treatment notes do not support Dr. Obatusin’s medical source
statement indicating that Palen had marked limitations.
The ALJ gave great weight to Dr. Clauson’s opinion because it was consistent
with his examination and with the medical record. (Tr. 17). The ALJ also gave great
weight to the opinion of Dr. Hohensee, who opined that Palen could perform light work,
and the opinion of Dr. Knosp who affirmed Dr. Hohensee’s opinion. The ALJ stated that
their opinions were based on an objective review of the entire medical record, the
experts were experienced in assigning RFCs and evaluating impairments, and their
opinions were consistent with the record and testimony. (Tr. 17). The ALJ gave great
weight to the opinions of Newman and Schmechel because they objectively reviewed
the entire medical record, were experienced in assigning mental RFCs and evaluating
mental impairments, and their opinions were consistent with the record and testimony.
(Tr. 19). The ALJ gave little weight to the opinion of Dr. Curran because it was not
consistent with more recent evidence that showed that Palen’s condition had improved.
(Tr. 19).
27

An ALJ evaluates the findings of State agency psychological consultants as
medical opinions under the regulations. See 20 C.F.R. §§ 404.1527, 416.927(f)(2). In
this case, the ALJ found that the consultants’ opinions were internally consistent and
consistent with the evidence as a whole, and therefore, gave them substantial weight.
Social Security Ruling 96-6p provides that, “[i]n appropriate circumstances, opinions
from State agency medical and psychological consultants and other program physicians
and psychologists may be entitled to greater weight than the opinions of treating or
examining sources.”
The ALJ also reasonably considered that Palen’s reported daily activities were
inconsistent with Dr. Obatusin’s opinion. Palen stated that he prepared microwave
meals, did dishes and laundry, and cleaned. (Tr. 188). At the hearing, he testified that
he worked, went to the Liberty Center, watched television, did laundry, mopped, and did
grocery shopping. (Tr. 45-46). Palen’s reports of social functioning were also
inconsistent with Dr. Obatusin’s opinion that he had marked limitations. Palen reported
that he talked to his daughter on the telephone almost daily. (Tr. 563). He was able to
maintain a friendship with a woman. (Tr. 563). An ALJ is warranted in discrediting some
of the treating physician’s opinions which are inconsistent with, and contradicted by,
other evidence in the record. Weber v. Apfel, 164 F.3d 431 (8th Cir. 1999).
In addition, Palen’s work history is inconsistent with Dr. Obatusin’s opinion that
he has disabling limitations. Palen earned $3,950 in 2011 and $2,380 in 2011. (Tr. 13536, 206-09, 220-23). His supervisors at part-time jobs in 2010 and 2011 stated that the
quality and quantity of Palen’s work was sufficient to meet and satisfy demand. (Tr. 206,
220). Palen showed the ability to understand, remember, and carry out short and simple
instructions. (Tr. 206-07, 220-21). He could maintain attention and concentration for
28

extended periods and perform at a consistent pace. (Tr. 207, 221). Palen could relate
appropriately to supervisors and coworkers and he could make simple, work-related
decisions and adapt to changes in the work. (Tr. 207-08, 221-22). However, one
employer reported that Palen could get stressed out and miss work for a few days. (Tr.
207). Two months before Dr. Obatusin’s opinion was written, Palen’s community
support worker stated that he was doing extremely well. (Tr. 672). At the hearing in May
2012, Palen testified that he had been working 25 hours each week since the previous
fall. (Tr. 35).
“[T]he ALJ is not required to rely entirely on a particular physician's opinion or
choose between the opinions [of] any of the claimant's physicians.” Martise v. Astrue,
641 F.3d 909, 927 (8th Cir. 2011), quoting Schmidt v. Astrue, 496 F.3d 833, 845 (7th Cir.
2007). The record in this case shows that the ALJ properly evaluated and weighed all of
the medical opinions and evidence and determined that Dr. Obatusin’s opinion was not
supported by the record. The ALJ was correct in failing to give Dr. Obatusin’s opinion
greater weight.
B. Ability to Work
Palen also mentions that the case must be remanded because the vocational
expert testified that a person with Palen’s limitations could not perform any past relevant
work and could not work in the national economy. (Pl.’s Br. at 17).
Leonhardt, the VE, was presented a question describing the limitations of a
hypothetical individual with restrictions similar to those of Palen. (Tr. 53). Leonhardt
stated that Palen could work as a production assembler, hand packager, or
housekeeping cleaner. There were a sufficient number of jobs in those areas in the
region and the nation. If the hypothetical individual was restricted to sedentary work, he
29

or she could work as a hand packager, as an office helper, or as an information clerk.
(Tr. 54). However, Leonhardt stated that a person with the marked limitations identified
by Dr. Obatusin would not be able to be competitively employed. (Tr. 55).
The burden of persuasion to prove disability and to demonstrate RFC remains on
the claimant, even when the burden of production shifts to the Commissioner at step
five. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004). The Commissioner may
satisfy this burden through the testimony of a VE. See 20 C.F.R. §§ 401.1566(e),
416.966(e). Although the VE stated that a person with limitations as defined by Dr.
Obatusin would not be able to perform any gainful employment, as noted above, the
court finds that Dr. Obatusin’s opinion should not be given great weight. The ALJ was
justified in relying on the VE’s testimony as substantial evidence to find that Palen was
not disabled. See 20 C.F.R. §§ 404.1566(e), 416.966(e). The VE’s testimony was
supported by the record as a whole.
The ALJ also found that Palen’s credibility was reduced due to its inconsistencies
with the medical record. Palen stated that he last used marijuana 15 to 20 years ago
and had never used any other illegal drugs, but he reported using marijuana somewhat
regularly during the alleged period of disability, had a positive urine drug screen for
marijuana, and reported using methamphetamine in August 2010. In addition, he left
multiple treatment programs before completion and declined treatment with a therapist.
On multiple occasions, he stopped taking his medications. The ALJ found that the lack
of compliance suggested that Palen’s condition was less severe than alleged. (Tr. 20).
The ALJ stated, “If the claimant in this case chooses not to follow through with a
substance abuse treatment program, not to consistently attend treatment, and not to
take his medications as prescribed, that is his privilege but the [Social Security Agency]
30

will not subsidize this behavior.” (Tr. 20, citing Sias v. Secretary of Health and Human
Services, 861 F.2d 475 (6th Cir. 1988).
V.

CONCLUSION

For the reasons discussed, the court concludes that the Commissioner’s decision
is supported by substantial evidence on the record as a whole and should be affirmed.
Accordingly,
IT IS ORDERED:
1.

The Commissioner’s decision is affirmed;

2.

The appeal is denied; and

3.

Judgment in favor of the defendant will be entered in a separate

document.
Dated this 1st day of July, 2014
BY THE COURT:

s/Laurie Smith Camp
Chief United States District Judge

31