Ott v. Astrue

Filing 28

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JASON E. OTT,
Plaintiff,

8:12-CV-71

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 Jason Ott's disability insurance benefits under
Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq. and § 1381
et seq. The Court has considered the parties' filings and the administrative
record, and affirms the Commissioner's decision to deny benefits.
PROCEDURAL HISTORY
Ott filed applications for disability insurance benefits and
supplemental security income in November 2007. T215-28. Ott's claims were
denied initially and on reconsideration. T107-14; T120-36. Following a
hearing, the administrative law judge (ALJ) found that Ott was not disabled
as defined under 42 U.S.C. §§ 416(i), 423(d), or 1382(a)(3)(A), and therefore
not entitled to disability benefits. T15. The ALJ determined that, although
Ott suffered from several severe impairments, and could no longer perform
his past relevant work, he had the residual functional capacity to perform
other jobs that exist in significant numbers in the national economy. T20-30.
The Appeals Council of the Social Security Administration denied Ott's
request for review of the ALJ's decision. T1-4. Ott's complaint seeks review of
the ALJ's decision as the final decision of the Commissioner under sentence
four of 42 U.S.C. § 405(g). Filing 1.
FACTUAL BACKGROUND
At the time of the administrative hearing in 2010, Ott was 38 years old
and living in La Vista, Nebraska. Ott had completed police academy training
in 1997 and an associate's degree in criminal justice and applied science in

1998. T48. He had worked as a security guard between 1994 and 1999, and in
1999 went to work for the State of Nebraska as a correctional officer. T50-51.
Then he was hired by the city of Corning, Iowa as a police officer. T51-52. Ott
was fired from that job, apparently because a previous criminal conviction
was discovered, although there was some discussion of a possible political
motive for the firing. T52. From 2000 to 2004 Ott was self-employed
installing ceramic tiles. T52-53.
On December 25, 2004, Ott was assaulted and suffered an epidural
hematoma. T55; T390. He was in a coma for a week or two, and required
rehabilitation afterwards. T55; T399; T619. Medical records indicate that by
February 2005, Ott had some residual difficulty with speech, although it had
much improved, and had "the expected problems with short-term memory."
T391. In March 2005, Ott successfully completed a driver's rehabilitation
program, including assessments of his ability to pay attention and avoid
distraction. T392-93. By June 2005, he was continuing to have some difficulty
with slurred speech and pain in his right ear. T390. But "[a]side from all
these problems and difficulties," he did not "voice any fresh complaints."
T390. His neurological examination was stable, and the examiner did not find
any new neurological deficits. T390.
Ott said he did not pursue further follow-up care for his injury because
he was uninsured. T55-56. He was also given anti-depressants, but he
decided to stop taking them because "[t]hey weren't working" and were giving
him "side effects." T56. He testified that he tried to continue working as a
tiler, but said he "screwed up a couple jobs" and "didn't do very well. . . ." T56.
He has not had sustained employment since, although he did successfully
work in a warehouse at a two-week temporary job in 2006. T251. (It may help
set the context for what follows to note, at this point, that Ott's alleged date
of disability is the date of his first injury: December 25, 2004. T18.)
In 2005, Ott was psychologically evaluated by Jane Warren, Ph.D.
T552. At that time, Ott said he had bid for some tiling jobs and was still
hoping to return to work. T553. He said fatigue was his primary worry in
maintaining full-time employment. T553. Neuropsychological testing was
performed, and Warren wrote that Ott seemed to be interested in the testing,
and that his "attention did not waver and [he] seemed to be able to
concentrate on the task at hand." T553. Warren said Ott was well-oriented
and upbeat, and appeared to be able to concentrate and follow tasks easily.
T554. Warren opined that there did "not appear to be any restriction of
activities of daily living, or difficulties in maintaining social functioning."
T554. Warren did note some mild depressive symptoms and a history of
anger management problems, but concluded Ott was able to sustain the
concentration and attention needed for task completion, was able to
-2-

understand and remember short and simple instructions and carry them out,
and was able to relate appropriately to coworkers and supervisors and adapt
to changes in his environment. T554. His prognosis was "fairly positive" given
the progress made since his injury. T555.
In 2007, Ott was jailed as a result of a confrontation with his stepfather
and although the charges were later dropped, he was injured again by an
assault while he was in jail. T61; T423. Among other things, he suffered a
broken hip, which is what prompted him to apply for disability. T62; T423;
T430. He was also punched in the face during that assault, and complained of
some head and facial pain, but the medical records from the incident do not
reflect any further brain injury. T424. His treating physician for the hip
injury opined that he had an impairment rating of 5 percent for his left leg,
and gave him a full release with no permanent restrictions. T551. Ott was
also evaluated for physical limitations before the administrative hearing and
although some were found, they are not at issue on appeal and do not require
detailed explanation. T492-501.
In late 2007, shortly after his hip injury, Ott sought mental health
services from Lutheran Family Services, reporting with depression. T519523. He was evaluated by consulting psychiatrist Eugene Oliveto, M.D.,
whose initial impressions included a posttraumatic stress disorder and
dysthymic disorder. T528-27. Oliveto noted that Ott slurred his speech and
had some memory issues, but was cooperative and had "a nice personality."
T529. Ott's affect and mood were stable, but he reported being impulsive
under stress, and needed to work on anger management in counseling. T529.
Ott saw Arlene Garcia, Ph.D., for counseling during 2008; her treatment
notes, although varied, generally reflect that Ott struggled with relationship
issues and was emotionally unstable and frustrated. T509-17. Treatment
notes from Garcia and Bruce Myers1 for 2009 and 2010 reflect similar
observations. T581-91.
Warren evaluated Ott again in 2008. T464. Warren characterized him
as "quite pleasant." T464. Ott told Warren about seeing Garcia, who he said
helped him "primarily with his depression about the future." T465. He
denied, among other things, any clinical depression or anxiety. T465. Ott said
he slept well. T467. When asked why it was difficult to maintain full time
employment, Ott said that he was "'bummed'" that he could not get back into
law enforcement. T467. He also reported that his hip bothered him and that

Myers was another therapist who saw Ott on some occasions, particularly in 2009. Myers
was, like Garcia, a licensed clinical social worker and a licensed mental health practitioner,
although his educational credentials are not described in the record. See T581.
1

-3-

he had a speech impediment from his previous brain injury; Warren noted
the speech impediment during the interview. T467.
Ott again underwent neuropsychological testing; this time, Warren
observed that although Ott did not give up on the tests, he also did not seem
motivated to do well. T468. Warren characterized his attitude as more
general disinterest than overt malingering, and found it "surprising how well
he did on the testing given his general lack of interest in it." T468. His scores
were, in fact, generally higher than in 2005, although his score for "working
memory" was slightly lower. T468; T553-54. Warren again found no
restriction of daily living or difficulties in maintaining social functioning, and
again concluded Ott was able to sustain concentration and attention needed
for task completion and was able to understand and remember short and
simple instructions and carry them out. T470. Warren noted some history of
conflict with supervisors, but found that Ott was able to adapt to changes in
his environment. T470. Warren concluded that Ott's prognosis appeared to be
"limited by his own lack of initiative and motivation to make change in his
life rather than any significant memory or speech problem." T470.
Because Ott had not been working, he made do with help from his
parents and a neighbor who took him in, and with whom he lived until just
before the hearing. T57-58. He occupied himself by, among other things,
playing online poker—he played for hours at a time, although the games were
very low-stakes. T58-59. At the administrative hearing, Ott said he had
recovered from his hip injury, but did not think he could meet the physical
requirements for police work, although he wanted to. T63. He said he might
be able to work as a security guard, although he would be unable to "chase
after a suspect or something" if that was required of him. T64. He
participated in vocational rehabilitation in 2008, but it did not result in
sustained employment. T64-65.
Ott was asked directly whether he could do some kind of work, and he
said it would depend on what he was required to do. T66. Ott explained that
he was forgetful, and would forget what he was supposed to do from day to
day. T66. He said his 2004 attempt to return to tiling had been unsuccessful
because he forgot important tasks that required much of his work to be
redone at his expense. T68-69. He also described everyday tasks, like writing
email, that he would forget to finish after getting distracted. T73.
Ott also said that he had anger management issues. T69. He admitted
that one of the reasons he was no longer living with the neighbor who had
taken him in was because he had, on several occasions, become angry and
damaged property. T69-70. He thought he would be unable to take directions
or criticism from a supervisor at work, because he couldn't "get along" with
anybody. T74. He also testified to panic attacks and anxiety, and said that he
-4-

woke up most nights for no reason. T71-72. Both Ott's mother and a friend
and neighbor also described Ott's attention deficits and frustration, and
depressive symptoms, although neither described Ott as getting more
agitated than raising his voice. T280-86.
Ott said he had made some attempts to get back into law enforcement,
such as pursuing certification in Texas and Kansas, but that his "license was
revoked" so he couldn't "get back on right now." T76-77. When asked directly
whether he would consider jobs other than law enforcement, Ott replied: "I
mean, no, to tell you the truth I wouldn't, I wouldn't – I would probably – no,
I wouldn't – I would – no, I would – no. No." T77. When asked what he would
do if law enforcement didn't work out, he simply said, "I don't know." T77.
For purposes of Ott's application for benefits, Garcia wrote a letter
opining on Ott's mental condition. Garcia noted a lack of consistency in Ott's
intellectual and emotional behaviors, and said that Ott "has a great deal of
unresolved anger and can vacillate from passivity to rage with unremarkable
triggers." T593. Ott was socially isolated, and Garcia said he suffers from
disruptive sleep and nightmares of the assaults he had suffered. T593. Garcia
also said Ott had uncontrollable selective memory and a limited ability to
focus. T593. Garcia observed "emotional incontinence" and opined that Ott
was hypersensitive. T594. Garcia opined that because of his injuries, Ott was
functioning below the normal range of intelligence, although he was able to
manage his own finances. T594. And Garcia opined that Ott was not a viable
candidate for employment, because of his unpredictable nature, anger, lack of
focus, selective memory, inability to follow instructions, and difficulty with
supervisors and coworkers.2 T594.
Oliveto also completed evaluation forms, for both an organic mental
disorder and an anxiety-related disorder. T532; T538. Oliveto described Ott's
organic mental disorder as arising from his 2004 injury, and noted his speech
impairment. T532. Oliveto circled items on the form for memory impairment,
perceptual or thinking disturbances, personality change, mood disturbance,
explosive temper outbursts, and lost intellectual ability. T532. Oliveto also
circled items for marked restriction of activities of daily living, marked
difficulties in maintaining social functioning, deficiencies of concentration,
and repeated episodes of deterioration or decompensation in work or workThe Court notes, however, that a treating provider's opinion that a claimant is "disabled"
or "unable to work," does not carry any special significance, because it invades the province
of the Commissioner to make the ultimate determination of disability. Davidson v. Astrue,
578 F.3d 838, 842 (8th Cir. 2009). Though a treating provider's opinion that the claimant
cannot return to work may assist an ALJ, when combined with other medical information,
in determining whether a claimant is disabled, such an opinion cannot resolve the issue. Id.
at 844.
2

-5-

like settings. T532. Oliveto diagnosed a post-head trauma organic brain
dysfunction syndrome and PTSD. T533.
Oliveto also checked items on the form for marked difficulties in
shopping, cooking, cleaning, paying bills, and using public transportation.
T534. Oliveto checked items for marked difficulty in communicating clearly
and effectively and holding a job. T534-35. And Oliveto checked marked
difficulties in independent functioning, concentration, persistence in tasks,
ability to complete tasks in a timely manner, ability to repeat sequences of
actions to achieve a goal, ability to assume increased mental demands
associated with competitive work, ability to sustain tasks without an
unreasonable number of breaks or rest periods, and ability to sustain tasks
without undue interruptions or distractions. T535. Oliveto further checked
list items suggesting that Ott had displayed inability to appropriately accept
supervision, withdrawal from situations, exacerbation of signs of illness,
exacerbation of symptoms of illness, deterioration from level of functioning,
decompensation, poor attendance, superficial or inappropriate interaction
with peers, inability to cope with schedules, poor decision-making, and
inability to adapt to changing demands. T536. On the separate form for
anxiety-related disorders, Oliveto circled an item for medically documented
findings of motor tension and apprehensive expectation, and recurrent and
intrusive recollections of a traumatic experience which are a source of
marked distress.3 T538.
In sum, Oliveto assessed Ott's ability to perform various tasks related
to occupational adjustments, performance adjustments, and personal/social
adjustments, as fair to poor. T547-49. Oliveto concluded that Ott could not be
gainfully employed. T549.
But Dr. Thomas Englund, a clinical psychologist, testified at the
administrative hearing about Ott's mental health history and Ott's hearing
testimony. T78. England noted that Oliveto had only examined Ott on "a
couple of occasions." T80. Based on Warren's evaluations and Ott's
performance in the driver's rehabilitation testing, Englund found the
objective evidence to suggest that "there really are no residual sorts of
neuropsychological . . . or memory problems." T81-82. Englund questioned
Oliveto's diagnosis of an organic brain syndrome, finding insufficient
information to make that finding. T82. And Englund noted that Ott's anger
management issues seemed to have preceded the brain trauma: Ott had been
in counseling for anger management in October 2004. T82. Englund found
As will be touched upon later, Oliveto apparently only saw Ott three times, and only one
of those visits involved any kind of extensive evaluation. It appears that Oliveto based his
opinions, in part if not substantially, on information from Garcia.
3

-6-

the evidence to support the likelihood of a depressive condition, and a
possibility of posttraumatic stress symptoms, although it was not clear that
any functional limitations had resulted from that. T85. Englund opined that
Ott had mild restrictions on daily living; moderate difficulties in maintaining
social functioning and difficulties in maintaining concentration, persistence,
or pace; and no repeated episodes of decompensation. T87. Englund further
opined that Ott would be no more than mildly impaired in understanding or
remembering and carrying out simple instructions, although he might be
moderately impaired with respect to complex or detailed instructions because
other factors might interfere. T87-88. Englund did not think that Ott would
have any problems handling routine, repetitive work, although he would be
limited to brief, superficial social interaction. T88-89.
After the hearing, Oliveto submitted a letter at the request of Ott's
counsel, explaining that since the hearing, he had reviewed Ott's files and
Englund's testimony before the ALJ. T619. Oliveto opined that although most
of the testing showed that Ott was not markedly impaired from his brain
damage, "in many areas he still suffers substantially from posttraumatic
stress disorder as well as a major depressive disorder that prevents him from
being gainfully employed because of his inability to tolerate any work-related
stress. . . ." T619. Oliveto noted that Ott had been in a coma for 7 days, which
showed "significant brain injury as rated by most neurologists and
neuropsychologists[,]" but Oliveto did not reassert his previous diagnosis
(criticized by Englund) of an organic brain dysfunction syndrome. T619.
SEQUENTIAL ANALYSIS AND ALJ FINDINGS
To determine whether a claimant is entitled to disability benefits, the
ALJ performs a five-step sequential analysis. 20 C.F.R. § 404.1520(a)(4).
STEP ONE
At the first step, the claimant has the burden to establish that he has
not engaged in substantial gainful activity since his alleged disability onset
date. § 404.1520(a)(4)(i); Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir.
2006). If the claimant has engaged in substantial gainful activity, the
claimant will be found not to be disabled; otherwise, the analysis proceeds to
step two. § 404.1520(a)(4)(i); Gonzales, 465 F.3d at 894.
In this case, the ALJ found that Ott had not engaged in substantial
gainful activity since his alleged disability onset date, and that finding is not
disputed on appeal. T20.

-7-

STEPS TWO AND THREE
At the second step, the claimant has the burden to prove he has a
"medically determinable physical or mental impairment" or combination of
impairments that is "severe[,]" 20 C.F.R. § 404.1520(a)(4)(ii), in that it
"significantly limits his physical or mental ability to perform basic work
activities." Gonzales, 465 F.3d at 894; see also, Kirby v. Astrue, 500 F.3d 705,
707–08 (8th Cir. 2007). Next, "at the third step, [if] the claimant shows that
his impairment meets or equals a presumptively disabling impairment listed
in the regulations, the analysis stops and the claimant is automatically found
disabled and is entitled to benefits." Gonzales, 465 F.3d at 894; §
404.1520(a)(4)(iii). Otherwise, the analysis proceeds.
For mental impairments, at steps two and three of the sequential
analysis, the ALJ utilizes a two-part "special technique" to evaluate a
claimant's impairments and determine, at step two, whether they are severe,
and if so, at step three, whether they meet or are equivalent to a "listed
mental disorder." § 404.1520a(a), (d)(1) and (2). The ALJ must first determine
whether the claimant has "medically determinable mental impairment(s)." §
404.1520a(b)(1). If any such impairment exists, the ALJ must then rate the
degree of "functional limitation" resulting from the impairment. §
404.1520a(b)(2). This assessment is a "complex and highly individualized
process that requires [the ALJ] to consider multiple issues and all relevant
evidence to obtain a longitudinal picture of [the claimant's] overall degree of
functional limitation." § 404.1520a(c)(1).
Four "broad functional areas" are used to rate these limitations:
"[a]ctivities of daily living; social functioning; concentration, persistence, or
pace; and episodes of decompensation." § 404.1520a(c)(3). These areas are
also referred to as the "paragraph B criteria," which are contained in 20
C.F.R. Part 404, Subpart P, Appx. 1, § 12.00 et seq. The first three criteria
are rated using a five-point scale of none, mild, moderate, marked, and
extreme. § 404.1520a(c)(4). The fourth criterion, episodes of decompensation,
is rated as: none, one or two, three, four or more. Id.
After rating the degree of functional limitation resulting from any
impairments, the ALJ determines the severity of those impairments (step
two). § 404.1520a(d). Generally, if the first three functional areas are rated as
"none" or "mild" and the fourth area as "none," the ALJ will conclude that
any impairments are not severe, unless the evidence indicates otherwise. §
404.1520a(d)(1). If any impairments are found to be severe at step two, the
ALJ proceeds to step three, and compares the medical findings about the
impairments and the functional limitation ratings with the criteria listed for
each type of mental disorder in 20 C.F.R. Part 404, Subpart P, Appx. 1, §
12.00 et seq.
-8-

In this case, at step 2, the ALJ found that Ott had some severe
impairments: the residuals of trauma to the brain with a craniotomy, the
residuals of a fractured hip with internal fixation, PTSD, and a mood
disorder. T20. But at step 3, the ALJ found that Ott did not have an
impairment or combination of impairments that met or medically equaled a
listed impairment. T22. And the ALJ found that the paragraph B criteria
were not present. T22.
Specifically, the ALJ explained that after carefully considering the
evidence, she found that Ott's "medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however, [Ott]'s
statements concerning the intensity, persistence and limiting effects of these
symptoms are not credible to the extent they are inconsistent with the above
residual functional capacity assessment." T24. The ALJ noted that despite
his reportedly-poor concentration, Ott was able to play poker for several
hours a day, and was able to drive a car. T24. The ALJ also noted that Ott
had been able to work in a warehouse for two weeks, and that the job only
ended because it was a temp job. T24. The ALJ found that Ott's self-described
dissatisfaction with being criticized or instructed by a supervisor had no
apparent connection to his medical conditions. T24. And noting Ott's
generally proper behavior during his psychological examinations by Warren,
the ALJ concluded that Ott's reported destructive behavior was a matter of
choice and volition, not an inescapable result of his mood disorder. T24-25.
The ALJ concluded that, given Ott's unwillingness to pursue work other than
law enforcement, Ott's "motivation is an important factor in his perception
regarding his capacity for work." T25.
The ALJ also discussed the expert opinion testimony extensively. The
ALJ gave Oliveto's opinion very little weight for several reasons. First, the
ALJ found that the forms completed by Oliveto were "completely at odds with
the clinical notes" and were "ambiguous and contain[ed] erroneous
information." T25. Although Oliveto wrote on the form that he saw Ott
monthly, Oliveto had in fact only seen Ott three times, and the last two of
those visits seemed to be perfunctory appointments for medication
management. T25. The ALJ noted how Oliveto had concluded, in support of
Ott's application for benefits, that
there were many areas and domains and functions in which [Ott]
was severely limited as a result of injury to his brain. . . .
However, despite that extraordinary assessment, his treatment
was limited to recommending that he obtain counseling and
providing samples of medication for erectile dysfunction and

-9-

stating that the claimant "basically needs to regain confidence in
himself."
T26. In short, the ALJ found that Oliveto's opinion in support of Ott's
application for benefits was unsupported by Ott's treatment records.
The ALJ also found Garcia's letter to be unhelpful. T26. Although
Garcia described Ott's emotional state in some detail, the ALJ found that
Garcia's descriptions were impractical and "virtually useless in determining
his functional limits." T26 (emphasis supplied). Garcia had also said that Ott
suffered from headaches, in-session disassociation, and "'vivid, violent
nightmares[,]'" but the ALJ noted that those significant observations were
somehow not mentioned in Garcia's clinical notes.4 T26. Her stated
observations were also inconsistent with Myers' notes of Ott's treatment in
May and October 2009, who described Ott as "stable." T27; T581.
In sum, the ALJ found that Oliveto's and Garcia's opinions were not
supported by other substantial evidence in the record. T27. Instead, the ALJ
agreed with Englund, and gave greater weight to his opinion and the
opinions expressed by Warren after she evaluated Ott in March 2005 and
March 2008. T27.
RESIDUAL FUNCTIONAL CAPACITY
Before moving to step four, the ALJ must determine the claimant's
residual functional capacity (RFC), which is then used at steps four and five.
20 C.F.R. § 404.1520(a)(4). "'Residual functional capacity' is defined as 'the
most [a claimant] can still do' despite the 'physical and mental limitations
that affect what [the claimant] can do in a work setting' and is assessed
based on all 'medically determinable impairments,' including those not found
to be 'severe.'" Gonzales, 465 F.3d at 894 n.3 (quoting §§ 404.1545 and
416.945). 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, and their related symptoms, including
pain. §§ 404.1529(d)(4) and 404.1545(a)(1) and (2). The RFC assesses the
claimant's ability to meet the physical, mental, sensory, and other
requirements of work. § 404.1545(a)(4). The mental requirements of work
include, among other things, the ability: to understand, remember, and carry
out instructions; to respond appropriately to supervision, coworkers, and
work pressures in a work setting; to use judgment in making work-related

Nor, the Court notes, did Ott testify to anything resembling "vivid, violent nightmares" at
the administrative hearing, despite specifically being asked whether his sleep was
uninterrupted, and what it was that woke him up. T72. That omission is significant.
4

- 10 -

decisions; and to deal with changes in a routine work setting. §§ 404.1545(c)
and 404.1569a(c); Social Security Ruling (SSR) 96-8p: Policy Interpretation
Ruling Titles II and XVI: Assessing Residual Functional Capacity in Initial
Claims.
The ALJ considers the claimant's statements about "the intensity,
persistence, and limiting effects of [his] symptoms," and evaluates them "in
relation to the objective medical evidence and other evidence." §
404.1529(c)(4). Ultimately, symptoms will be determined to diminish the
claimant's capacity for basic work activities, and thus impact the claimant's
RFC, "to the extent that [the claimant's] alleged functional limitations and
restrictions due to symptoms . . . can reasonably be accepted as consistent
with the objective medical evidence and other evidence." Id.; § 404.1529(d)(4).
In assessing the credibility of a claimant's subjective testimony regarding his
or her alleged symptoms, the ALJ must weigh a number of factors. See, Moore
v. Astrue, 572 F.3d 520, 524 (8th Cir. 2009); § 404.1529(c)(3)(i–vii).5 When
deciding how much weight to afford the opinions of treating sources and other
medical opinions regarding a claimant's impairments or symptoms, the ALJ
considers a number of factors set forth in § 404.1527.
Based on the credibility findings discussed above at steps two and
three, the ALJ found that Ott had the RFC to perform medium work, except
that he is limited to routine and repetitive work that does not require
extended concentration or attention, and to brief and superficial social
interaction on the job. T23.
STEPS FOUR AND FIVE
At step four, the claimant has the burden to prove that he lacks the
RFC to perform his past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv);
Gonzales, 465 F.3d at 894. If the claimant can still do his past relevant work,
he will be found to be not disabled, otherwise, the analysis proceeds to step
five. 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 that the claimant can perform. Gonzales, 465
F.3d at 894; § 404.1520(a)(4)(v).
In this case, at step four, the ALJ found that Ott was unable to perform
any past relevant work. T28. But the ALJ found, based on the testimony of
the vocational expert (VE), that there were jobs that existed in significant
In assessing a claimant's credibility, the ALJ should consider: (1) the claimant's daily
activities; (2) the duration, intensity, and frequency of pain; (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.
5

- 11 -

numbers in the national economy that Ott could perform. T29. So, the ALJ
concluded that Ott was not under a disability, and denied his claims for
benefits. T30.
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. The Court reviews for substance
over form: an arguable deficiency in opinion-writing technique does not
require the Court to set aside an administrative finding when that deficiency
had no bearing on the outcome. Buckner v. Astrue, 646 F.3d 549, 559 (8th Cir.
2011). And the Court defers to the ALJ's determinations regarding the
credibility of testimony, so long as they are supported by good reasons and
substantial evidence. Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011).
ANALYSIS
It is helpful, as an overview, to understand the fundamental
disagreement in this case. The ALJ found some of Ott's testimony to be
unreliable, and found some expert opinions to be more persuasive than
others, and based her conclusion on those determinations. Ott accuses her of
cherry-picking. But that is not the same as arguing that the ALJ overlooked
critical evidence, or failed to develop the record. It is simply an argument
that the ALJ believed the wrong witnesses. An ALJ is not above reproach in
that regard, and the Court has considered Ott's arguments carefully. But
given the standard of review, the Court finds that the ALJ's decision is
certainly supported by the record.
ALJ'S DETERMINATION OF OTT'S CREDIBILITY
Ott's first argument is that there is not substantial evidence in the
record to support the ALJ's finding that Ott's testimony was not entirely
credible. Filing 21 at 13. As discussed above, in discrediting Ott's testimony,
the ALJ noted Ott's online poker, operation of a vehicle, and two-week temp

- 12 -

job as evidence that his self-reported limitations were inaccurate. Ott
contends that the ALJ erred in using those facts as "evidence that he could do
routine and repetitive work on a full time basis. . . ." Filing 21 at 13. Ott
points out that his poker playing was low-stakes and unsuccessful, and that
his short-term activities do not prove that he is capable of full-time work or
able to cope with job-related stress. Filing 21 at 13-14.
But the point is this: Ott's activities were found to exceed his selfreported limitations, indicating a lesser impairment than was claimed in his
testimony. Acts which are inconsistent with a claimant's assertion of
disability reflect negatively upon that claimant's credibility. Renstrom v.
Astrue, 680 F.3d 1057, 1067 (8th Cir. 2012). The ALJ may disbelieve
subjective complaints if there are inconsistencies in the evidence as a whole.
Goff v. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005). And the Court defers to
the ALJ's credibility findings where the ALJ expressly discredits a claimant's
testimony and gives a good reason for doing so. See id. Questions of
credibility are for the ALJ in the first instance. Finch v. Astrue, 547 F.3d 933,
935 (8th Cir. 2008).
Even if Ott's daily activities do not conclusively prove he can work, they
effectively demonstrate that his ability exceeds his self-reported limitations,
casting his testimony about those limitations into doubt. There is substantial
evidence supporting the ALJ's finding in this regard. In addition, the fact
that Ott was apparently able to work successfully in a warehouse for two
weeks does suggest that he might be capable of longer-term employment. Ott
only left that job because it was a temporary position, and it is relevant to
credibility when a claimant leaves work for reasons other than his medical
condition. Goff, 421 F.3d at 793.
Ott also takes issue with the ALJ's conclusion that Ott's professed
inability to accept criticism or instruction was unconnected to his medical
condition. Filing 21 at 14. Ott claims that the ALJ ignored evidence showing
Ott's emotional volatility and social impairments. Filing 21 at 14. But the
ALJ did not ignore that evidence: in fact, the ALJ limited Ott to brief and
superficial social interaction on the job. T23. The ALJ was entitled to
conclude from the evidence that Ott is capable of appropriate behavior when
it is required of him. And, the Court notes, impairments that are controllable
or amenable to treatment do not support a finding of disability. Davidson v.
Astrue, 578 F.3d 838, 846 (8th Cir. 2009).
Ott further contends that when the ALJ found Ott's statements to
indicate that he was unwilling to perform jobs other than law enforcement,
the ALJ was ignoring medical evidence suggesting that Ott's medical
condition had "affected his judgment about both social complexities and his
own capacities." Filing 21 at 14. In other words, Ott seems to be explaining
- 13 -

his testimony as a symptom of disability, not an alternative explanation for
his unemployment. That is an interesting theory, but it is not a conclusion
that is compelled by the record. The ALJ's finding that Ott was unmotivated
to pursue available employment is directly supported by Ott's own
testimony—it can hardly be said that the ALJ's finding has no substantial
support in the record.
Finally, Ott takes issue with the ALJ's reliance on Warren's opinions as
a basis for discrediting Ott's testimony. Ott contends that Warren's
conclusions are contradicted by medical evidence and witness testimony.
Filing 21 at 15-18. The ALJ, according to Ott, was "'cherry-picking' the
record." Filing 21 at 18. But Ott's argument is, in effect, that the ALJ erred
by picking the wrong cherries. While there is undoubtedly evidence in the
record to support Ott's argument, there is also substantial evidence in the
record to support the ALJ's finding, which is all that is required. Although
the ALJ's decision does not summarize every notation in the medical records,
it is clear from the decision that the ALJ reviewed them thoroughly. The ALJ
concluded that while Ott suffered from diagnosable medical conditions, the
limitations resulting from those conditions were not sufficiently disabling.
And more to the point, the ALJ found the medical evidence to suggest that
Ott was not as limited by his condition as his testimony suggested. The Court
finds substantial evidence in the record to support that finding.
ANALYSIS OF OTT'S PTSD
Ott claims that the ALJ failed to account for all the effects of his PTSD
when performing steps three and five of the sequential evaluation.
Understanding this argument will require a slightly closer examination of 20
C.F.R. Part 404, Subpart P, Appx. 1, § 12.06. That section relates to anxietyrelated disorders, and provides that
[t]he required level of severity for these disorders is met when the
requirements in both A and B are satisfied, or when the
requirements in both A and C are satisfied.
A. Medically documented findings of at least one of the
following:
1. Generalized persistent anxiety accompanied by three
out of four of the following signs or symptoms:
a. Motor tension; or
b. Autonomic hyperactivity; or
c. Apprehensive expectation; or
d. Vigilance and scanning; or

- 14 -

2. A persistent irrational fear of a specific object, activity,
or situation which results in a compelling desire to avoid
the dreaded object, activity, or situation; or
3. Recurrent severe panic attacks manifested by a sudden
unpredictable onset of intense apprehension, fear, terror
and sense of impending doom occurring on the average
of at least once a week; or
4. Recurrent obsessions or compulsions which are a source
of marked distress; or
5. Recurrent and intrusive recollections of a traumatic
experience, which are a source of marked distress;
And
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration,
persistence, or pace; or
4. Repeated episodes of decompensation, each of extended
duration.
OR
C. Resulting
in
complete
inability
to
function
independently outside the area of one's home.
20 C.F.R. Part 404, Subpart P, Appx. 1, § 12.06. In this case, the ALJ found
that neither the paragraph B nor the paragraph C criteria were satisfied.
Ott directs the Court's attention to the paragraph A criteria, and
asserts that "the ALJ was mistaken that a finding of PTSD requires an
accompanying finding that [Ott] experiences 'anxiety.'" Filing 21 at 19. The
Court is not clear about what, exactly, Ott is referring to. In fact, the ALJ did
not discuss the paragraph A criteria. Nor was the ALJ required to do so.
Section 12.06 requires that the criteria for paragraph A are met and the
criteria for either paragraph B or paragraph C are met. Having concluded
that the criteria for neither paragraph B nor paragraph C were met, the ALJ
had no need to consider paragraph A. Nor does the Court, because the Court
finds no error in the ALJ's paragraph B findings, and no one is contending
that the paragraph C criterion is present.
Beyond that, the Court finds no merit to Ott's argument that the ALJ
ignored the symptoms, such as nightmares, described by Oliveto and Garcia.
Filing 21 at 19-21. The ALJ did not ignore that evidence—the ALJ
specifically explained that she did not find it persuasive because it was not

- 15 -

consistent with the other substantial evidence in the record. Nor did the ALJ
err in doing so. But that implicates Ott's next argument.
ALJ'S REJECTION OF TREATING SOURCE OPINIONS
Ott claims that the ALJ's rejection of Oliveto's and Garcia's opinions
was unsupported. Filing 21 at 21. A treating source's opinion on the nature
and severity of an impairment will be given controlling weight when "wellsupported by medically acceptable clinical and laboratory diagnostic
techniques" and "not inconsistent with the other substantial evidence in [the]
case record[.]" 20 C.F.R. § 404.1527(c)(2). But a treating source's opinion does
not automatically control, since the record must be evaluated as a whole.
Goff, 421 F.3d at 790. An ALJ may discount a treating source's medical
statement where the limitations on the form stand alone, and are not
mentioned in the records of treatment, nor supported by objective testing or
reasoning. Reed v. Barnhart, 399 F.3d 917, 921 (8th Cir. 2005). Here, the ALJ
explained in detail why she found that Oliveto's and Garcia's opinions were
neither well-supported nor consistent with the medical records.
To begin with, it is questionable whether Oliveto's opinion is even
entitled to the "controlling weight" that may be afforded to a "treating
source." A treating source is a claimant's own physician, psychologist, or
other acceptable medical source who provides or has provided the claimant
with medical treatment or evaluation and who has, or has had, an ongoing
treatment relationship with the claimant. 20 C.F.R. § 404.1502. A claimant
has an ongoing treatment relationship with an acceptable medical source
when the medical evidence establishes that the claimant sees, or has seen,
the source "with a frequency consistent with accepted medical practice for the
type of treatment and/or evaluation required for [the claimant's] medical
condition(s)." Id. An acceptable medical source who has treated or evaluated
the claimant "only a few times or only after long intervals (e.g., twice a year)"
will be considered the claimant's treating source only "if the nature and
frequency of the treatment or evaluation is typical for [the claimant's]
condition(s)." Id.
Oliveto, however, only saw Ott three times over an extended period,
and two of those visits do not appear to have been extensive. The course of
Ott's treatment with Garcia and Myers suggests that the nature and
frequency of Ott's treatment by Oliveto were not typical, and that Oliveto was
therefore not a treating source. Ott argues that he saw Oliveto, Garcia,
Myers, and at least one other therapist "at the same clinic," and that the
providers "had access to each other's records." Filing 21 at 23. But a provider
does not become a "treating provider" simply by sharing an office with

- 16 -

another provider who regularly sees a patient. See Starr v. Barnhart, 80 Fed.
Appx. 529, 530 (8th Cir. 2003).
And in any event, an ALJ may discount or even disregard the opinion of
a treating source where other medical assessments are supported by better or
more thorough medical evidence, or where a treating source renders
inconsistent opinions that undermine the credibility of such opinions. Reed,
399 F.3d at 921. As a general matter, the report of a consulting physician
who examined a claimant once does not constitute substantial evidence upon
the record as a whole, especially when contradicted by the evaluation of the
claimant's treating source. Cantrell v. Apfel, 231 F.3d 1104, 1107 (8th Cir.
2000). But the consulting physician's report may prove to be more thorough
or well-supported if the consulting physician conducts a more thorough
evaluation—for example, by employing exhaustive testing regimens and
psychological and mental tests. See id.
In this case, although Warren was not a "treating source" because she
was a consulting examiner, her involvement with Ott's treatment was
arguably more extensive than Oliveto's. She conducted neuropsychological
testing that was focused on Ott's functional capacity, and unlike Oliveto she
had the benefit of seeing him in 2005 and 2008, giving her a broader context
to evaluate Ott's condition. It is not clear from the record that Oliveto had
access to Warren's assessment before the administrative hearing. In sum, the
ALJ did not err in finding Warren's opinions—and Englund's opinion, which
substantially relied on Warren—to be more thorough and well-supported.
Ott also takes issue with the ALJ's observation that "[t]hroughout the
[administrative] hearing, [Ott's] behavior was entirely appropriate and he
was generally polite and respectful." T24. This, according to Ott, was the "'sit
and squirm' test which has been repeatedly rejected by the courts." Filing 21
at 21. Ott is referring to the proposition that an ALJ is not free to reject a
claimant's credibility with respect to subjective allegations of pain based
solely on the claimant's failure to "sit and squirm" during the administrative
hearing. See, e.g., Muncy v. Apfel, 247 F.3d 728, 736 (8th Cir. 2001); Reinhart
v. Sec'y of Health & Human Servs., 733 F.2d 571, 573 (8th Cir. 1984). But
that is not what the ALJ did. The ALJ's conclusion was hardly based "solely
upon the ALJ's observations at the hearing, which is an improper basis
because it is not corroborated by any of the other evidence." Compare Douglas
v. Bowen, 836 F.2d 392, 396 (8th Cir. 1987) (emphasis in original). The ALJ
observed Ott's demeanor at the hearing, but also relied upon Ott's behavior
when being examined and observed by Warren, a medical professional, in
2005 and 2008. T24. And the ALJ's assessment of Ott's credibility, as

- 17 -

described above, was based on several facts that the ALJ took from the record
and Ott's own testimony.6
Finally, Ott challenges the ALJ's rejection of Garcia's summary letter,
which Ott says included specific limitations on Ott's ability to work. Filing 21
at 22. Ott claims that the ALJ's rejection was in error because it was based
on her finding that Garcia's observations were "'general, ambiguous, and
imprecise. . . .'" Filing 21 at 22. But that was only part of the ALJ's reasoning.
The ALJ explained that some of Garcia's letter was unhelpful because it
described Ott's condition in therapeutic terms that did not translate easily to
evaluating Ott's capacity to work. And the Court understands the ALJ's
frustration: for example, the observation that "[a]lthough [Ott] wants
closeness, he wants distance at the same time" does not have any obvious
vocational implications. See T593. But more importantly, the ALJ also
explained that Garcia's letter was not persuasive because it was not
supported by Garcia's own clinical notes. And it is permissible for an ALJ to
discount an opinion of a treating source that is inconsistent with the source's
clinical treatment notes. Davidson, 578 F.3d at 843; see also Hogan v. Apfel,
239 F.3d 958, 961 (8th Cir. 2001). The Court, having reviewed the record,
finds no error in the ALJ's determination.
CONCLUSION
Ott suggests briefly, in conclusion, that the ALJ erred in the
hypothetical questions that were posed to the VE. Filing 21 at 25. A
hypothetical question must precisely describe a claimant's impairments so
that the vocational expert may accurately assess whether jobs exist for the
claimant. Howard v. Massanari, 255 F.3d 577, 581-82 (8th Cir. 2001). But the
substance of Ott's argument is about his RFC, not the hypothetical. A
hypothetical must include only those impairments and limitations that are
supported by the record, which the ALJ accepts as valid, and which the ALJ
finds to be credible. Gragg v. Astrue, 615 F.3d 932, 940 (8th Cir. 2010); Young
v. Apfel, 221 F.3d 1065, 1069 (8th Cir. 2000). Ott's argument is really that the
ALJ should have based Ott's limitations on Ott's own testimony, and the
Court has already rejected the basis of that argument.
None of this is to say that Ott does not suffer from any limitations. Ott
obviously has psychological conditions that require treatment and counseling,
and the Court hopes that he gets the help he needs, for personal and
employment reasons. But saying that someone needs help or treatment is not
Nor is the Court entirely persuaded that an ALJ may never rely on personal observations,
particularly where the claimant's reported limitations are objectively observable. For
instance, if a claimant testified that he was completely unable to walk, an ALJ would surely
be entitled to note if she observed otherwise during the hearing.
6

- 18 -

the same as saying that he is disabled within the meaning of the statutory
requirements of the Social Security Act. Consequently, the Commissioner's
decision to deny benefits will be affirmed.
IT IS ORDERED:
1.

The Commissioner’s decision is affirmed.

2.

Ott's complaint is dismissed.

3.

The parties shall bear their own costs.

4.

A separate judgment will be entered.

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

John M. Gerrard
United States District Judge

- 19 -