Joseph v. Astrue

Filing 25

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

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
KENNETH E. JOSEPH,
Plaintiff,

8:12-CV-146

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 Kenneth E. Joseph's disability insurance benefits
under Titles II and XVI of the Social Security Act ("SSA"), 42 U.S.C. §§ 401 et
seq. and 1381 et seq. The Court has carefully considered the parties' filings
and the administrative record. For the reasons discussed below, the
Commissioner's decision will be affirmed.
PROCEDURAL HISTORY
This case involves two applications made under the SSA. On
September 26, 2008, Joseph applied for disability insurance benefits under
Title II, (T10, 134–42), and for supplemental security income benefits under
Title XVI. T10, 131–33. Both claims were denied initially and on
reconsideration. T62–63, 76–84. Following a hearing on September 20, 2010,
the administrative law judge (ALJ) found that Joseph was not disabled as
defined under 42 U.S.C. §§ 416(i), 423(d), or 1382c(a)(3)(A), and therefore not
entitled to benefits under the SSA. T7–20. The ALJ determined that,
although Joseph 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 existed in significant numbers in the
national economy. T7–20.
On March 7, 2012, after reviewing additional evidence, the Appeals
Council of the Social Security Administration denied Joseph's request for
review. T1–4. Joseph'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).

See § 1383(c)(3) (decisions of the Commissioner under Title XVI subject to
judicial review as provided for in § 405(g)).
FACTUAL BACKGROUND
I. Medical and Psychiatric Records
Joseph alleges that he has been disabled as of July 23, 2008, primarily
as a result of several mental impairments: depression, anxiety, and bipolar
affective disorder (type 2). T31–32, 62–63 167, 217.1 At the time of the
administrative hearing in 2010, Joseph was 45 years old. T20, 131.
A. Pre-Onset Date Medical and Work History
Joseph has a long history of mental illness and alcohol abuse, which
predates his amended onset date by decades. He has experienced depression
since the age of 8, and has attempted suicide several times throughout his
life. T276, 292. Between 2000 and 2002, Joseph was hospitalized for
psychiatric issues on multiple occasions. T277, 292. He has a history of
significant alcohol use since at least the mid-1990s and continuing through
July 2008. T271, 376. Joseph stated that his mental illness first began to
interfere with his ability to work in 1999. T167. Nonetheless, he attended
college for 1½ years in 2000 to 2001 (having previously obtained his GED),
and from 2003 to 2008 he worked in a variety of positions. T34, 168.
From May 2003 to March 2006, Joseph worked full-time as a front-desk
clerk at a hotel. T168, 178, 375. He was fired from this job because of his
drinking. T523. From March to October 2006, he worked at the front desk of
another hotel. T168. Joseph reported that he lost this job due to excessive
absences caused by his mental illness. T160. From 2007 to 2008, he worked
part-time for 5 months as a cashier at a drug store and then for 7 months at a
food market. T168. And before that he worked for 2 months as a part-time
busser/flyer distributor. T168. Joseph reported that he also lost each of these
jobs because his mental illness caused him to miss too many days of work.
T153–54, 160.
B. Medical Records: 2008 to 2010
In July 2008, Joseph began working for a traveling carnival. T276.
After only 2 weeks, he injured his back, and was fired and abandoned at a
In his initial applications, Joseph alleged an onset date of March 1, 2006. T131, 136, 162,
167. Joseph later amended his onset date to correspond to the date he achieved sobriety and
actually stopped working. T236. Joseph originally claimed that several physical conditions
also contributed to his disability, but the ALJ found these were not sufficiently severe
(T13). Joseph does not dispute this finding, and his physical conditions will not be discussed
further.
1

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truck stop in Iowa, leaving him homeless. T276, 278, 448. On July 23, he
went to the emergency room because he was considering suicide. T276, 448.
Joseph was eventually referred to the Lasting Hope Recovery Center, in
Omaha, Nebraska, where he was hospitalized until August 6. T259, 271, 449.
Upon admission, Joseph was diagnosed with depression and alcohol
dependence, and given a global assessment of functioning ("GAF") score of 20
to 25.2 T279–282. Joseph's condition gradually improved with medication,
and his GAF score was raised to 29 on August 6. T273. At that time, he was
also diagnosed with bipolar affective disorder (type 2). He was discharged in
stable condition and referred to Lutheran Family Services (LFS) for
outpatient therapy and psychiatric treatment. T274.
After leaving Lasting Hope, Joseph participated in the Salvation
Army's Adult Rehabilitation Center (ARC) program, which provided him with
housing. ARC was a "work intensive program" and Joseph worked 8 hours
each day in the Salvation Army's shop, taking in clothes and performing
similar tasks. T40. Joseph stayed with this program for about 2 months. T40–
41, 298. He then found housing through a different Salvation Army program,
which helped him obtain general assistance and an apartment, but did not
require him to work. T41.
In August 2008, Joseph met for the first time with Licensed
Independent Mental Health Practitioner (LIMHP) Ben Czyz, a therapist with
LFS. T298. Czyz assessed Joseph's GAF at 47.3 Thereafter, they began
weekly therapy sessions. T303–08. On August 29, Dr. Sriram Ramaswamy, a
psychiatrist with LFS, performed a psychiatric evaluation of Joseph. T292–
93. Joseph described a strong history of anxiety, and reported that he had
used alcohol for many years to self-medicate his depression. Since starting
with the Salvation Army, however, he had maintained sobriety. T292. Joseph
no longer reported thoughts of suicide. T293. Ramaswamy diagnosed him
A GAF score represents "the clinician's judgment of the individual's overall level of
functioning," not including impairments due to physical or environmental limitations. See
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders
32 (4th ed. 2000) (hereinafter, "DSM–IV–TR"). The GAF scale is divided into ten ranges of
functioning, with a score of 100 representing superior functioning. Id. at 32–34. A score of
11 to 20 means the subject is in some danger of hurting himself or others. Id. at 34. A score
in the 21-30 range reflects behavior that is considerably influenced by delusions or
hallucinations, or serious impairment in communication or judgment, or inability to
function in almost all areas (e.g., staying in bed all day, and having no job, home, or
friends). Id.
2

A range of 41 to 50 signifies that the person suffers from "serious" symptoms, such as
suicidal ideation, or has "any serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job). DSM–IV–TR at 34 (emphasis supplied).
3

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with major depression and alcohol dependence, and rated his GAF as 50.
T293. Joseph attended his final therapy session with Czyz on November 7,
2008. T303. He reported that his depression had decreased, and Czyz agreed
that Joseph's condition had improved. T303.
From the time Joseph's condition stabilized in late 2008, through the
date of the hearing in 2010, Joseph has generally reported the following
symptoms, which have fluctuated in severity: a lack of concentration, energy,
and motivation; thoughts of failure; and feeling empty, helpless, and
hopeless. He has also experienced sleeplessness and fatigue, racing thoughts,
and occasional thoughts of suicide. T191, 217, 236, 273, 313, 370, 385, 387,
398–402, 410, 413, 420, 424, 426, 429, 432, 460, 479, 534, 545. Joseph claimed
that being around people made him anxious and worsened his symptoms, and
made it difficult for him to concentrate. T191, 236.
In November 2008, Joseph's treatment was transferred to the Douglas
County Community Mental Health Center, where he began seeing Dan
Brune, an advanced practice registered nurse (APRN). T313–18. At their
initial appointment, Brune noted Joseph had poor energy and concentration,
and a lack of motivation. T313. Brune diagnosed him with severe major
depression disorder (with a rule-out of bipolar affective disorder), and alcohol
dependence, and assessed his GAF at 48. T315. Brune referred Joseph to a
day rehabilitation program with Community Alliance, which he was
supposed to attend at least once every week. T196, 516, 519, 530, 546.
In December 2008, state medical consultant Lee Branham, Ph.D.,
completed two forms evaluating Joseph's depression and bipolar disorder.
T326–30, 333–47. Branham concluded that Joseph suffered from a severe
affective disorder which caused marked problems with motivation, attention,
and concentration. However, Branham found that it was likely that, by July
2009, Joseph's condition would significantly improve, to the point that he
would have only moderate limitations. T328. Shortly thereafter, a second
state agency medical consultant, Leif Leaf, Ph.D., reviewed both of
Branham's opinions and stated his agreement with them. T352, 355.
On December 23, 2008, Janette Bentley, PLMHP (Provisional Licensed
Mental Health Practitioner), provided her impression of Joseph's condition.
T196. Bentley was an "Assessment Specialist" with Community Alliance.
Joseph had started the day program about 1 month earlier, but his
attendance had been sporadic, so Bentley was only able to provide a brief
assessment. She stated that Joseph was "at times" unable to attend the day
program because of his anxiety and depression, and when he did attend, he
had a hard time concentrating. Bentley also noted that Joseph's grooming
and hygiene were poor, and that his body odor was very strong. T196.
However, Joseph's condition soon improved.
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At a therapy appointment with Brune on January 30, 2009, Joseph's
dress, grooming, and speech were within normal limits. T358. Brune assessed
a GAF score of 55.4 T359. By the end of February, Brune believed Joseph's
depression had moderately improved, but still listed his GAF as 55. T372–33.
In March 2009, Joseph provided a report of his daily activities and
symptoms. T215. Joseph wrote that he had no hobbies, although he did study
the Bible on a daily basis, and he went to church twice a week. T216, 222–23.
Otherwise he generally spent most days watching television. T215, 223.
Joseph was able to take care of his personal needs: he prepared simple meals,
washed the dishes, and did his laundry. T215 He used the bus for
transportation or would ask his pastor for a ride. Joseph bought his groceries
at a store near his apartment. T216. However, he needed a payee to help
manage his money. T216–17. Other than church, shopping, and his
appointments, he did not leave his apartment. T222. He mostly kept himself
isolated, and had no friends except those at church. T222. Joseph's symptoms
generally remained the same as described above, but going to church and
reading helped. T217, 224.
On March 25, 2009, state medical consultant Linda Schmechel, Ph.D.,
completed a psychiatric evaluation form. T361. Like Branham, she found that
while Joseph had a severe mental impairment, it was not expected to last 12
months. T361.
In May 2009, Joseph reported to Brune that his depression was worse
and he was anxious about his claim for disability benefits. T370. Despite this,
he was attending church more often and going to the day program three
times a week. Brune noted that Joseph was taking his medications, and that
they were moderately effective in controlling his depression and anxiety.
T370–71. Brune raised Joseph's GAF to 55–58. T371. In July, Joseph again
reported worse symptoms, and Brune adjusted his GAF to 50–55. T390.
However, Joseph denied feeling helpless or worthless, and his housing and
activities of daily living remained stable. T389–390. Similarly, in July and
August 2009, Joseph reported to his LFS social worker that he was very
depressed. T420, 424. But the social worker noted that, "[a]lthough [Joseph]
says he is depressed[,] he seems to be managing his depression." T419–20.
In June 2009, staff at the Community Alliance completed an
assessment of Joseph's functioning. T534–46. He was still reporting the same
general symptoms. T534. Since beginning the day program in November
2008, Joseph's attendance had been minimal, and there were several months
where he did not attend at all. T540, 545, 557–575. Joseph explained that he
was still struggling with his tendency to isolate himself in his apartment.
A GAF score of 51 to 60 indicates moderate symptoms or moderate difficulty in social,
occupational, or school functioning. DSM–IV–TR at 34.
4

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T534, 545. However, when Joseph did attend the day program, he was wellkept and clean, polite and respectful, and participated well in group
discussions and activities. T537–40, 560. From July to November 2009,
Joseph only attended the day program once. T402–423, 547–556. And on
November 30, 2009, Joseph dropped out of the day program against
professional advice. T516.
From November 2009 to February 2010, Joseph generally reported that
his depression had worsened, which he attributed in part to the holiday
season. T387, 404–06, 412–13. Throughout this period, Brune worked with
Joseph on adjusting his medications, and rated his GAF score as 50–55.
T384–88, 398–99, 402, 404, 464. By March 2010, Joseph reported that he was
sleeping better and noticing improvement with the new medications,
although he had not noticed any real improvement with his depression. T394.
In April, Joseph reported more intense racing thoughts and stated he was
staying isolated more often. T460–61. Brune adjusted his medications again.
Despite Joseph's reported symptoms, Brune raised his GAF to 55–60. In May,
although Joseph reported he was "just getting by" and that he was anxious
and could not sleep due to racing thoughts, Brune noted his depression and
activities of daily living were stable, and assessed a GAF score of 55–58.
T458.
In January 2010, Joseph began attending individual therapy sessions
with Jay Patil, a licensed mental health professional (LMHP) with LFS.
T405, 442. At their first session, Patil noted that Joseph was very open and
honest, and appeared to be in a good mood. T442. Joseph described his
sessions with Patil as "good" and stated they were building rapport. T394,
397. Over the following months, Patil encouraged Joseph not to isolate
himself, to return to church or other social activities, and to get involved with
a day program. T395, 438, 440, 482, 487–488. Patil explained that isolation
could exacerbate Joseph's depression. T438, 487.
Joseph's social workers also encouraged him to return to the
Community Alliance day program. T466, 470, 472, 480. Eventually Joseph
contacted the day program to set up an intake appointment so he could begin
attending again. T480, 482, 484, 487–88. However, Joseph continued to have
a negative attitude about the program. T470, 472, 480. His initial intake
appointment was postponed multiple times, as he continued to call in sick.
T467, T473, 475, 476. One of Joseph's social workers expressed concern that
Joseph was simply calling in sick to avoid going to the program. T467. As of
August 2010, the record does not show that Joseph ever followed through
with the intake appointment. T466.
On August 4, 2010, Brune assessed Joseph's GAF as 58–60. T455, 457.
Brune noted that Joseph's depression had stabilized and that although
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Joseph reported increasing anxiety, Brune found it to be under "fair control."
T456–57. The next day, Brune also completed several psychiatric evaluation
forms. T494–501. Sidney Kauzlarich, M.D., a clinical psychiatrist and
Brune's supervisor, co-signed the forms in September. T501, 510, 577. These
forms will be discussed briefly in the summary of the ALJ's findings, and
more fully in the Court's analysis below.5
In September 2010, Joseph responded to interrogatories supplied by
the agency. T236. He reported symptoms that were more or less the same as
above, and that his medications were somewhat effective, but he was still
having difficulty sleeping. T236–37. Joseph stated that, at times he could
barely leave his apartment, because his depression kept him "locked in and
paranoid." T236. He occasionally experienced blackouts where he would not
remember what he had done for the past hour. T236. Joseph wrote, "I can't be
around people. The anxiety makes me unable to think, my stomach ulcers
kick in." T236. Joseph also summarized his recent daily activities. He was
still able to take care of himself. T239–40. On an average day, he stated,
"[s]ometimes I'll work on the computer. I keep a journal. I watch TV, eat, do a
little bit of cleaning." T240. He reads on the computer for about an hour
throughout the day, usually reading the news. T240.
The record also contains a letter from Joseph's grandmother, Nancy
Mills, with whom he lived in 2007. T37, 211–13. This letter is discussed below
in connection with the ALJ's decision.
A review of Joseph's GAF scores from 2008 to 2010 provides a helpful
overview of his conditions and how they changed. As the following table
shows, Joseph's lowest levels of functioning lasted only briefly, and by early
2009, he was consistently rated in the "moderate" range.

Following the hearing before the ALJ, Kauzlarich submitted a letter explaining the
evaluations submitted by him and Brune. This letter will also be considered below.
5

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Joseph's GAF Scores, 2008 to 2010
Date
7/2008

Score
20-25

8/2008
8/2008
8/2008
11/2008
1/2009
2/2009
5/2009
7/2009
1/2010
1/2010
2/2010
4/2010
5/2010
5/2010
8/2010

29
47
50
48
50, 55
55
55–58
50–55
50
50–55
50–55
55–60
52
55–58
58–60

Evaluator
Roger J. Pentzien, M.D.
(neuropsychiatrist) and
Aly S. Hassan, M.D.
Mark J. Diercks, M.D.
Czyz
Ramaswamy
Brune
Brune
Brune
Brune
Brune
Patil
Brune
Brune
Brune
Patil
Brune
Brune

Transcript
T280, 282

T273
T298
T293
T315
T359, 392
T372–73
T370–71
T390
T489
T388
T464
T461
T489
T458
T455, 457

C. Hearing Testimony
The ALJ held a hearing on September 20, 2010, and received testimony
from Joseph and the vocational expert (VE), Anita Howell. T26–61. Joseph
testified regarding his symptoms and his daily routine, and this generally
mirrored his previous statements on these subjects. T42, 44, 48–49. Joseph
testified that his medications had helped him, but were not helping much
with his depression and racing thoughts. T45–46. The racing thoughts made
it difficult for him to focus and concentrate, and he was often nervous and
had poor memory. T46. Joseph explained that his symptoms would interfere
with jobs such as his former hotel positions, because he would not want to be
around people, and would not be able to focus. T47. He stated there were
times when he zoned out for a couple hours and would not remember what
had happened. T47.
The ALJ asked if Joseph could handle a job such as cleaning offices at
night, where he might run into a coworker once or twice during the night but
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was mostly alone, doing the same simple tasks. T47. Joseph responded that if
his depression was severe, he would not be able to show up, and this poor
attendance would get him fired. T47. He explained that about once or twice a
month, his depression was so severe he was unable to get out of bed for days.
T44–45. Joseph also believed that he would lack the focus necessary to do
this sort of job. T48.
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, but 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).
Where the claimant submits evidence to the Appeals Council that was
not previously submitted to the ALJ, the new evidence becomes part of the
administrative record before the Court. Nelson v. Sullivan, 966 F.2d 363, 366
(8th Cir. 1992). If, as here, the Appeals Council considered the new evidence
but declined to review the ALJ's decision, the Court does not evaluate the
Council's decision to deny review, but determines whether the record as a
whole, including the new evidence, supports the ALJ's determination.
Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir. 2000); see also Van Vickle v.
Astrue, 539 F.3d 825, 829 n.2 (8th Cir. 2008). The Court must decide how the
ALJ would have weighed the new evidence had it existed at the initial
hearing. Bergmann v. Apfel, 207 F.3d 1065, 1068 (8th Cir. 2000). But the
general rule still applies: even if the new evidence is substantial and supports
a contrary decision, the Court may not reverse the ALJ's decision if it is
supported by substantial evidence. Id.

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SEQUENTIAL ANALYSIS AND THE ALJ'S 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).
I. 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. 20 C.F.R. § 404.1520(a)(4)(i); Gonzales v. Barnhart, 465 F.3d 890, 894
(8th Cir. 2006).6 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 Joseph had not engaged in substantial
gainful activity since his alleged disability onset date, and that finding is not
disputed on appeal. T12.
II. 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 the claimant's 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 any 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 a "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. 20 C.F.R. § 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).
Titles II and XVI have separate regulatory schemes (compare, e.g., § 404.1501 with §
404.1501), but there are no material differences in the regulations applicable to Joseph's
claims, so the Court cites only the regulations pertaining to Title II.
6

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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 listing
criteria for each type of mental disorder in 20 C.F.R. Part 404, Subpart P,
Appx. 1, § 12.00 et seq.
In this case, at step two, the ALJ found that Joseph had severe
impairments of bipolar II disorder, depression, anxiety, and alcohol
dependence in remission. T12. At step three, the ALJ found that none of
these impairments met or equaled a listed impairment. T13–14. Joseph does
not dispute this finding on appeal. However, in arriving at that conclusion,
the ALJ found that Joseph experienced no more than moderate limitations in
the paragraph "B" criteria. T13. Joseph argues that this is not supported by
the record, but this argument is actually directed at the next step of the
ALJ's analysis.
III. 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).
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). This requires a review of
"all relevant evidence" in the case record. 20 C.F.R. § 404.1545(a). Although
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the ALJ is responsible for developing the claimant's complete medical
history, § 404.1545(a)(3), the claimant bears the burden of proof to
demonstrate his or her RFC. Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir.
2000).
The RFC assesses the claimant's ability to meet the physical, mental,
sensory, and other requirements of work. § 404.1545(a)(4). For mental
impairments, the RFC determination involves a detailed assessment that
itemizes the broad paragraph "B" criteria used at step two (e.g., "activities of
daily living" and "social functioning") into more specific mental requirements
of work. Social Security Ruling (SSR) 96-8p: Policy Interpretation Ruling
Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims.
These requirements 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 decisions; and to deal with changes in a
routine work setting. §§ 404.1545(c) and 404.1569a(c); SSR 96-8p. All limits
on work-related activities that result from a claimant's mental impairments
must be included in the RFC. SSR 85-16: Titles II and XVI: Residual
Functional Capacity for Mental Impairments.
A special procedure governs the ALJ's evaluation of a claimant's
symptoms. The ALJ first considers whether the claimant suffers from
"medically determinable impairment(s) that could reasonably be expected to
produce [the claimant's] symptoms." § 404.1529(a) to (c)(1). A medically
determinable impairment must be demonstrated by medical signs or
laboratory evidence. § 404.1529(b). If this step is satisfied, the ALJ then
evaluates the intensity and persistence of the claimant's symptoms to
determine how they limit the claimant's ability to work. § 404.1529(c)(1). This
again requires the ALJ to review all available evidence, including statements
by
the
claimant,
objective
medical
evidence,
and
"other
7 § 404.1529(c)(1) to (3). The ALJ then considers the claimant's
evidence."
statements about the intensity, persistence, and limiting effects of his or her
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).
"Other evidence" includes information provided by the claimant, treating and non-treating
sources, and other persons. See § 404.1529(a)(1), and the sections referred to therein, as
well as § 404.1529(c)(3).
7

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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).8 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 20 C.F.R. § 404.1527.
In formulating Joseph's RFC, the ALJ considered Joseph's treatment
and progress, from his hospitalization for suicidal thoughts in 2008, up to the
date of the hearing, and found that Joseph's condition had significantly
improved. T15–17. The ALJ summarized Joseph's treatment notes with
Brune and Patil and the notes of the LFS social workers. T16–17. These
showed that Joseph's mental conditions had stabilized, he had achieved and
maintained sobriety, he was living more or less independently, and that he
was overall "doing much better" with a GAF of (up to) 60. T15. Additionally,
Joseph reported that his medications were somewhat effective and caused no
side effects. T14.
This improvement was also reflected in Joseph's activities of daily
living. Whereas in 2008, Joseph had poor grooming and hygiene, by early
2009 and through the date of the hearing, Joseph was living more or less
independently and taking care of himself. T16–17. He prepared simple meals,
did his own laundry and dishes, kept his apartment tidy, was able to use his
computer, and attended church on a fairly regular basis. He was also able to
go grocery shopping.9 T17
The ALJ carefully considered Joseph's statements regarding the effects
of his mental impairments. Joseph claimed his anxiety and depression
interfered with his ability to focus and concentrate, that he was nervous and
often isolated himself, and that he experienced fear attacks, a lack of interest
in hobbies, no energy, a sense of emptiness, and feelings of suicide and
failure. T14–15. He claimed that he could not be around people, especially
crowds, and that his anxiety made it difficult to think. T14–15. Joseph
reported that he barely left his apartment at times because his depression
In assessing a claimant's credibility, the ALJ should consider the so-called Polaski factors:
(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 (citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)).
8

Joseph generally had his landlord or social worker go with him to the store. But, as he
explained, that was because he was nervous about going out alone in his neighborhood,
which he claimed had a high crime rate. T17, 48–49.
9

- 13 -

kept him locked in and paranoid. He did not sleep much, and 1–2 days each
month he could not get out of bed due to his depression.
Ultimately, the ALJ found that Joseph had the RFC to perform the full
range of work at all physical exertional levels, but was limited to unskilled
work that was routine, repetitive, and did not require extended
concentration, dealing with changes, or goal setting. T14. Additionally,
Joseph was limited to no more than occasional, brief, or superficial social
interaction with coworkers, supervisors, or the general public. T14. In
reaching this conclusion, the ALJ found that while Joseph's "medically
determinable impairments could reasonably be expected to cause the alleged
symptoms," Joseph's statements concerning the intensity, persistence, and
limiting effects of his symptoms were not credible to the extent they were
inconsistent with the ALJ's RFC determination. T15.
The ALJ explained several reasons for finding Joseph's statements not
entirely credible: they were not supported by the record, and they were
inconsistent with the objective evidence, the relief that his treatment had
provided, and his reported activities. T15–18. This included the fact that,
although Joseph was suffering from the same mental impairments prior to
his disability onset date (and was also abusing alcohol), he was able to
maintain steady employment at the front desk of two hotels for over 3 years.
T17. The ALJ also observed that Joseph had been inconsistent with his
treatment. T15. Specifically, Joseph was discharged from the day program
due to his poor attendance, and he had missed multiple appointments with
Patil. T16–17. The credibility determination also factored in statements made
by Joseph to his LFS social workers and at the hearing. In June 2010, Joseph
stated that the only reason he was going to return to the day program was
because of his pending disability case. T17, 472. And at the hearing, Joseph
claimed that he had not looked for work since his amended onset date
because, in part, Brune had told him he could not do well enough around
people to work. T18, 38–39. But Brune never made such a statement, nor did
he or Patil ever restrict Joseph from working. T18.
The ALJ also found support for this RFC in the opinions of the
consulting physicians and mental health providers. The ALJ afforded
substantial weight to the opinions of the state agency medical consultants
Lee Branham, Ph.D., and Linda Schmechel, Ph.D. T17. Both determined
that, while Joseph suffered from severe mental impairments in late 2008 and
early 2009, his condition was expected to improve within 12 months, and
would then cause no more than moderate limitations in functioning. T17. In
affording these opinions substantial weight, the ALJ noted that the
predictions of improvement were borne out by the record. T17.

- 14 -

The ALJ also considered the report of Joseph's grandmother, Nancy
Mills, who Joseph lived with for about 8 months in 2007. T16, T37. Mills
reported that her neighbors liked Joseph and that he interacted well with
them. T16. The ALJ noted that Mills did not mention any mental health
problems, and rated Joseph's concentration as fairly good. T16. The ALJ
found Mills' statements credible and afforded them substantial weight. T16.
As the RFC shows, the ALJ did not entirely reject Joseph's claimed
limitations. And the ALJ found support for some limitations in other opinions
in the record. The ALJ afforded substantial weight to the report of Janette
Bentley, PLMHP, from Community Alliance. T16. In December 2008, Bentley
observed that Joseph had limitations in being around others, poor grooming
and hygiene, difficulty concentrating and maintaining focus, and poor
medical compliance at times. T16. The ALJ found that Bentley's statement
supported limiting Joseph's RFC to unskilled work with limited social
interaction. T16.
Finally, the ALJ considered the August/September 2010 evaluation
forms filled out by Brune and cosigned by Kauzlarich. Briefly, Brune and
Kauzlarich opined that Joseph had marked limitations due to his anxiety
(but not his affective disorders). T16–17. They concluded that Joseph had
poor abilities in dealing with the public, concentration, and detailed work,
but fair abilities in many other areas. T17. The ALJ found their opinion
consistent with an RFC for unskilled work and limited social interaction.
T17. But the ALJ found the marked limitations in activities of daily living
and concentration were not supported by the record and were inconsistent
with Brune's contemporaneous treatment notes, including recent GAF scores
of up to 60. T17. The ALJ also found that Kauzlarich had not actually
participated in Joseph's treatment, but had only supervised Brune. T17. For
these reasons, the ALJ afforded their opinions little weight. As will be
discussed more fully below, Joseph argues that the ALJ committed numerous
errors in arriving at this RFC.
IV. 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. § 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).

- 15 -

In this case, at step four, the ALJ found that Joseph may have been
able to perform his past job of busser/flyer distributor. T18, 51–52, 168. But
the ALJ nonetheless decided it was appropriate to continue to step five. At
that step, the ALJ found, based on the testimony of the vocational expert,
that there were jobs that existed in significant numbers in the national
economy that Joseph could perform. T18–19. Specifically, the ALJ
determined that Joseph was capable of performing about 80–85 percent of the
full range of unskilled work, including the representative occupations of
industrial janitor, laundry worker, and hospital cleaner. The ALJ therefore
concluded that Joseph was not under a disability, and denied his claims for
benefits.
ANALYSIS
I. Joseph's Credibility
Joseph argues that the ALJ erred in finding that his statements
concerning his symptoms were not entirely credible. As discussed above, the
ALJ provided several reasons for this finding. First, the ALJ found that
Joseph had failed to follow the recommendations of his treatment providers,
and was inconsistent in treating his mental illnesses. This finding was based
on Joseph's failure to attend the day program as recommended by Brune and
Patil, and Joseph's missed appointments with Patil. Joseph argues that this
should not have been held against him, because his absences were the result
of his depression and anxiety. The Court finds that substantial evidence
supported the ALJ's determination, and Joseph's first argument is without
merit.
Joseph next argues that the ALJ's overall credibility determination was
not supported by substantial evidence. Again, the Court finds no error. The
credibility of a claimant's subjective testimony is primarily for the ALJ to
decide, not the courts. Vossen v. Astrue, 612 F.3d 1011, 1017 (8th Cir. 2010).
The ALJ's credibility determination must be upheld if the ALJ provides good
reasons for discounting the claimant's subjective complaints—i.e.,
inconsistencies in the record, or the Polaski factors—and those reasons are
supported by substantial evidence. Gonzales, 465 F.3d at 895–96. The ALJ
cited several proper reasons for finding Joseph less than credible (in addition
to his failure to follow his providers' recommendations). As the Court explains
below, each was supported by substantial evidence.
A. Failure to Follow Treatment Recommendations
Joseph does not dispute that failing to follow a recommended course of
treatment weighs against a claimant's credibility. See Wagner v. Astrue, 499
F.3d 842, 851 (8th Cir. 2007). Nor does Joseph dispute that Patil advised him
- 16 -

that isolating himself would only worsen his depression, and that attending
the day program could help, or that Brune and his social workers also
encouraged him to attend.
Instead, Joseph argues that his absences were manifestations of his
depression and anxiety, which kept him isolated and unable to leave his
apartment. He relies on Pate-Fires v. Astrue, 564 F.3d 935 (8th Cir. 2009). In
Pate-Fires, the court held that it was improper to hold a claimant's treatment
noncompliance against her, when it was a manifestation of her severe
schizoaffective disorder, which deprived her of the rationality to even decide
whether to continue treatment. 564 F.3d at 945–46.
Joseph acknowledges that he knew it was in his best interest to take
his treatment seriously. In addition to the recommendations and
encouragement of his treatment providers, his attorney warned that not
following through with treatment could hurt his chances of obtaining
disability benefits. T467, 484. But, he argues, that simply proves his point—
the fact that he was acting against his own interest shows that his actions
were manifestations of his mental illness, which lead to "avoidant behaviors,
negative thinking patterns[,] and defeatist/hopeless outlooks[.]" Filing 16 at
14.
However, in Pate-Fires there was "overwhelming" evidence that the
claimant's noncompliance was attributable to her mental illness. 564 F.3d at
945–46. With one exception, the only evidence here comes from Joseph's own
statements.10 Joseph reported that the large groups at the day program made
him anxious. T32—33, 42, 552, 560. And on various occasions he stated he
was too depressed or anxious to attend, or was having trouble sleeping, or
was simply unable to overcome his urge to stay isolated. See, e.g., T417, 470,
473, 477, 534, 540, 545.
But notes from Joseph's social workers also show that he may simply
have been avoiding the day program because he did not want to participate.
Joseph postponed his intake appointment with the day program multiple
times, claiming he was sick. But one social worker expressed concern that
Joseph was simply calling in sick to avoid going. T467, 473, 475, 476. The
record also shows that Joseph generally had a negative attitude about
attending the day program. T467, 470, 476, 477. And in June 2010, Joseph
In December 2008, Bentley stated that Joseph was "at times" unable to attend the day
program because of his anxiety and depression. T196. But Bentley's statements were made
during the period when Joseph's symptoms were at their peak and his functioning at its
lowest levels. In the months following this assessment, Joseph's condition improved
significantly. Compare T196, 313–315 with T358–59, 370–73. Bentley's statement does not
explain Joseph's continued absences from 2009 to 2010, nor does it explain his missed
appointments with Patil.
10

- 17 -

told a social worker that the only reason he would follow through with
attending was because of his pending disability claims. T472. Moreover,
Joseph has not explained his irregular attendance with Patil. Unlike the
group programs at the Community Alliance, his therapy sessions with Patil
were one-on-one, and Joseph does not claim he experienced any anxiety about
these sessions. In sum, Joseph's case is readily distinguishable from PateFires, and the ALJ properly factored Joseph's noncompliance with his
treatment into her credibility assessment.
Ultimately, Joseph's sporadic attendance only matters in that it
factored into the ALJ's overall credibility determination. And as the Court
explains next, this determination was supported by proper reasons and
substantial evidence.11
B. The ALJ's Credibility Assessment
The ALJ found several reasons for discounting Joseph's credibility, and
the Court finds no error in the ALJ's overall decision or the underlying
reasons. First, the ALJ properly observed that Joseph's statements regarding
his symptoms were inconsistent or lacking support in the record. For
example, when asked why he had not looked for a job since achieving
sobriety, Joseph answered "Basically, I can't be around people. I just -especially large numbers of people -- I just totally break down anymore."
T38–39. But these statements were contradicted by notes from the
Community Alliance, which reported that Joseph participated well in group
discussions and activities at the day program. T537–40, 560. Joseph's ability
to participate well, despite the "crowded" and "sometimes very large[,]
congested group conditions" at the program, casts doubt on his claim that he
would break down around people. T31–33, 42.
The ALJ noted that most of Joseph's past jobs had required
interpersonal skills, and involved working with the public, and asked if he
had tried to find a job that did not involve working with people. T39. Joseph
responded, "I've looked for them, you know, but everywhere I go, there's more
people." T39. Joseph then admitted that he was not looking for work in
Omaha. T39. When asked why, he responded that Brune had told him he
"wouldn't be allowed to be around people that long." T39. But as the ALJ
noted, this was not borne out by the record, and there is no evidence Brune
(or Patil) restricted Joseph from being around people or seeking employment.
T18.
So, even if Joseph's noncompliance was caused, in whole or in part, by his depression and
anxiety, the Court is not convinced that this would have materially affected the ALJ's
overall finding.
11

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Joseph stated he had never been able to hold down a job. T43. The ALJ
responded that Joseph had worked for (nearly) 3 years at a hotel. T43. Joseph
explained that "My depression and everything hadn't hit me and stuff." T43.
But the record, including Joseph's own statements at the same hearing,
showed that he suffered from depression and anxiety even prior to 2003.12
T36–37. More importantly, Joseph's ability to work despite his mental illness
casts doubt on his claim that these same mental illnesses now render him
disabled.13 See, Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005); Goff
v. Barnhart, 421 F.3d 785, 792–93 (8th Cir. 2005).
Finally, after being discharged from in-patient psychiatric treatment in
the fall of 2008, Joseph was able to participate in the Salvation Army's ARC
program for about 2 months, which required him to work 8 hours each day in
the Salvation Army's shop, taking in clothes and performing similar tasks.
T40–41, 298. The ALJ asked why Joseph had stopped working after October
2008. T41. Joseph responded that he could not be around people, especially
crowds. T41. That prompted the following exchange:
ALJ:
Joseph:
ALJ:
Joseph:

But you did work in the back room, it sounds like, for
three [sic] months; is that the kind of work you can
do?
I don't think I could do that now.
Why -- you can't do it now but you could do it then?
I had to do it then to stay in the program.

T41.
Joseph's ability to work when necessary—with no apparent effect on
his mental stability—casts doubt on his claim that his mental conditions are
disabling. Disability is measured by what a claimant can do, despite his or
her physical or mental impairments, see Gonzales, 465 F.3d at 894 n.3, not
what a claimant is willing to do. And here, the ALJ properly found that
Joseph could do more than he claimed. Notwithstanding this finding, the
Joseph previously stated that his mental illness first began to interfere with his ability to
work in 1999 (T167), that he was hospitalized for mental illness between 2000 and 2002
(T277, 292), and that he had a long history of depression and suicide attempts dating back
to his childhood. T276, 292.
12

Joseph explained elsewhere that while his mental illnesses affected him for many years,
the symptoms became worse when he lost his insurance in 2006 and was unable to afford
his medication. T137. Even so, from 2006 to 2008, Joseph worked in three positions that he
maintained for approximately 6 months apiece. T168. Nor is this argument persuasive
when it comes to Joseph's ability to work post-onset date, as he has been consistently
taking his medications since 2008.
13

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Court does not doubt that Joseph's mental illnesses have greatly interfered
with his life. And, like the ALJ, the Court commends Joseph for working hard
to achieve sobriety and to find some measure of peace. However, the ALJ
provided several reasons for finding Joseph's statements not entirely
credible, and the Court finds no error in the ALJ's reasoning or decision.
II. Joseph's Residual Functional Capacity
Joseph next argues that the ALJ committed a variety of errors in
determining his RFC. Joseph argues that the ALJ erred in (1) finding his
condition had significantly and sustainably improved; (2) failing to find that
Brune and Kauzlarich were "treating sources" or otherwise refusing to give
their opinions controlling weight; (3) drawing erroneous conclusions from his
activities of daily living; (4) improperly weighing the statements of Janette
Bentley and his grandmother; and (5) failing to perform a function-byfunction analysis of his RFC. The Court finds that each argument is without
merit.
Joseph's first argument, that the ALJ erred in finding his condition had
improved, is beside the point. Joseph does not dispute that his condition had
improved since his suicidal low point in July 2008. Filing 16 at 16. Instead,
Joseph is really arguing that, even after his condition improved, the RFC
understated the impact of his mental impairments—in other words, that the
RFC was not supported by substantial evidence. That argument will be
considered below, and further discussion on his improvement, standing alone,
is not warranted. Joseph's remaining arguments can be considered more
efficiently after a review of the ALJ's overall RFC determination. The Court
finds that, contrary to Joseph's overarching argument, the ALJ did not err in
formulating Joseph's RFC.
As discussed above, the ALJ found that Joseph was limited to unskilled
work that was routine and repetitive; did not require extended concentration,
dealing with changes, or goal setting; and involved no more than occasional,
brief, or superficial social interaction with coworkers, supervisors, or the
general public. T14. Joseph's main objection is that the ALJ erred in not
affording more weight to the opinions of Brune and Kauzlarich. Brune was
Joseph's primary treatment provider, and he and Kauzlarich were the only
sources to opine that Joseph's limitations were greater than those found by
the ALJ. So, their opinions, and what the ALJ made of them, are central to
this case.
A. Brune and Kauzlarich's Opinion
The evaluations filled out by Brune in August 2010 and countersigned
by Kauzlarich in September consisted of three separate checklist forms.
- 20 -

T494–513. The first two forms were psychiatric evaluations (the "PE forms")
that corresponded to the criteria used by the Commissioner to assess the
severity of a claimant's mental impairments at step two and to determine
whether an impairment meets or equals listing criteria at step three. The
first form related to affective disorders, i.e., depression and bipolar disorder
(listing 12.04), and the second addressed anxiety-related disorders (12.06).
T494, 502; 20 C.F.R. Part 404, Subpart P, Appx. 1, §§ 12.04, .06.
Brune found that Joseph's anxiety disorder resulted in more severe
symptoms and limitations than his affective disorders. The PE forms asked
whether Joseph's conditions resulted in impairments in three of the broad
paragraph "B" criteria: activities of daily living, social functioning, and
concentration, persistence, or pace. T497–99, 506–08; see § 404.1520a(c)(3).
These were further divided into specific functions, which were rated using the
same five-point scale as in step two: none, mild, moderate, marked, and
extreme. See, §§ 404.1520a(c)(4), 404.1545(c), and 404.1569a(c); SSR 96-8p.
On the form for affective disorders, Brune found no impairments in any
of the three paragraph B criteria, not even "slight" impairments. T497–99. In
contrast, on the anxiety form, Brune found marked impairments in all three
categories.14 T507–08. More specifically, under activities of daily living,
Brune checked the items for grooming, personal hygiene, maintenance,
shopping, cooking, cleaning, paying bills, planning daily activities, and
initiating and participating in activities. T507. Under social functioning, he
found marked limitations in (among other things) communicating clearly and
effectively, cooperating with coworkers, responding to supervision, holding a
job, and interacting and actively participating in group activities. T507–08.
Finally, under concentration, persistence, and pace, Brune found marked
limitations in every sub-category, including (among others): independent
functioning, concentration, and the ability to assume the increased mental
demands associated with competitive work. T508.
Finally, the PE forms asked whether Joseph had displayed certain
conditions in stressful circumstances. T499, 509. Brune checked several items
on the anxiety form, including: withdrawal from situations, exacerbation of
symptoms and deterioration of functioning, poor attendance and decisionmaking, and inability to cope with schedules and adapt to changing demands.
T509. Brune did not check any of these items on the form for affective
disorders. T499.
"Marked" was defined on the sheet as the "range between moderate and extreme. With a
marked limitation the person cannot perform the function independently and appropriately
and effectively and on a sustained basis." T506. This generally corresponds to the definition
provided in Social Security regulations. 20 C.F.R. Part 404, Subpart P, Appx. 1, § 12.00.C;
see also § 404.1520a(c)(4).
14

- 21 -

The third form rated Joseph's mental and emotional capabilities in
"day-to-day work settings." T511. Unlike the previous forms, which asked
whether Joseph had experienced certain symptoms or impairments, this form
was concerned with Joseph's (then-current) ability to work. Compare T496–
97, 507–08 with 511. This "work capacity" form measured Joseph's abilities
using a five-point scale, from lowest to highest: none, poor, fair, good,
unlimited. T511. The form contained three broad categories: "making
occupational adjustments," "making performance adjustments," and "making
social adjustments." T511–12. Each contained subcategories addressing more
specific work abilities. Brune rated all of Joseph's abilities as either "fair" or
"poor." T511–12. "Fair" meant the ability to function was "limited but
satisfactory," while "poor" meant the ability was "seriously limited but not
precluded." T511 (emphasis supplied).
Under occupational adjustments, Brune rated as poor Joseph's abilities
to deal with the public and handle work stresses, and to maintain attention
and concentration. T511. But he rated as fair Joseph's ability to follow work
rules, relate to coworkers, interact with supervisors, use judgment, and
function independently. T511. The next category, "making performance
adjustments," measured the ability to carry out instructions that were (1)
complex, (2) detailed but not complex, or (3) simple. T512. Brune rated
Joseph as poor in each. Finally, under social adjustments, Joseph was rated
as poor in maintaining his personal appearance and relating predictably in
social situations, but as fair in behaving in an emotionally stable manner and
demonstrating reliability. T512.
Overall, the ALJ found that Brune's opinion—and Kauzlarich's
concurrence—were not entitled to great weight. But the ALJ generally
afforded more weight to the opinions expressed on the work capacity form
than those in the PE Forms. The ALJ found the limits in the work capacity
form were generally consistent with the RFC for unskilled work and limited
social interaction. T17. In contrast, the ALJ found that the marked
limitations for activities of daily living and concentration set forth in the PE
form for anxiety disorders were not supported by the record and were
inconsistent with Brune's contemporaneous treatment notes, including his
recent findings of GAF scores of up to 60. T17. The ALJ also noted that
Kauzlarich did not actually participate in Joseph's treatment, but only
supervised Brune. T17.
Joseph argues that the ALJ erred by not giving greater weight to the
opinions of Brune and Kauzlarich, and in particular the PE form showing
marked limitations. He points to a letter written by Kauzlarich and
submitted following the ALJ's decision. In the letter, Kauzlarich explained
that
- 22 -

[w]hen completing checklists and other statements in
connection with disability claims, we [Douglas County clinical
staff] often rate as "marked" the patient's limitations in several
areas of functioning. However, in our clinic notes, we may rate
the same patient as having a GAF score in a range between 50
and 60, which, as defined by the DSM-IV, reflects a "moderate
level" of impairment.
When completing reports for a Social Security
Administration or State Disability claim, we are judging how the
patient would function in the context of full-time employment.
This is our understanding of how the Social Security
Administration . . . judges the person's "disability," i.e., the
ability to work. The question is, can the patient perform the
specific function independently and appropriately and effectively
and on a sustained basis. When we find the person's limitation in
the area to be "marked" this would translate to a GAF score
below 50. That same person may have a clinical GAF score of 50
or higher, but this is judging how the person is functioning in the
context of not working: when he or she does not have to contend
with the demands of a full-time job.
T577. So, Joseph argues, there was actually no inconsistency between the
anxiety-related disorders form and Brune's earlier GAF scores and treatment
notes, and the ALJ should have credited the marked limitations Brune
predicted would return if Joseph resumed full-time work.
The Court must decide how the ALJ would have weighed the opinions
contained in the PE and work capacity forms, had Kauzlarich's letter been
available at the initial hearing. Bergmann v. Apfel, 207 F.3d 1065, 1068 (8th
Cir. 2000). The ALJ credited the work capacity form over the PE forms,
because the marked limitations in the latter were not supported by the
record. The Court finds that the ALJ's decision is readily reconciled with
Kauzlarich's letter, and that the letter would not have materially affected the
ALJ's decision.
Kauzlarich's letter explains why the PE forms were inconsistent with
Brune's contemporaneous treatment notes. But Kauzlarich failed to explain
why the PE forms were inconsistent with the work capacity form. If Brune
and Kauzlarich intended the PE forms to rate Joseph's symptoms and
limitations in the context of full-time employment, then the PE forms should
have been consistent with the work capacity form. But that was not the case.
- 23 -

Instead, the work capacity form did not contain the limitations one would
expect given the limitations expressed on the PE form.
For example, the anxiety PE form listed "marked" limitations in
cooperating with coworkers and responding to supervision. T507. Yet the
work capacity form rated Joseph as "fair" in relating to coworkers and
interacting with supervisors. T511. While these forms were measuring
slightly different functions ("cooperating with" versus "relating to"), and
using slightly different rating metrics, the disparity between "fair" and
"marked" calls out for some explanation.15 But no explanation was given.
Similarly, on the PE form Brune found marked limitations in "independent
functioning," but found a fair ability to "function independently" on the work
capacity form. Compare T508 with T511.
Given these inconsistencies, and the lack of an explanation, the ALJ
was entitled to credit the work capacity form over the PE forms. It is the
ALJ's role to resolve conflicts among the opinions of various treatment
providers. Renstrom v. Astrue, 680 F.3d 1057, 1065 (8th Cir. 2012). The work
capacity form more directly addressed the impact of Joseph's symptoms on
his ability to perform basic work functions (as opposed to the severity of the
symptoms alone) and the Court finds no error in affording it greater weight.
And as the Court next explains, while the record supported some but not all
of the limits on the work capacity form, it did not support the marked
limitations on the PE forms.
The RFC incorporated the findings on the work capacity form that
Joseph had poor abilities in dealing with the public and work stresses,
maintaining concentration, and relating predictably in social situations. The
remainder of the limitations on the work capacity and PE forms were not
supported by the record. For example, Brune's opinion that Joseph had a poor
ability to follow even simple job instructions has no basis other than Joseph's
subjective statements that he found it difficult to concentrate, which the ALJ
properly found less than credible. At various times, Joseph was able to study
the Bible, keep a journal, and read news on the computer for about an hour a
day. T216, 223, 240. From approximately February to May 2010, Joseph took
the initiative to find and participate in an internet support group for people
with mental illnesses. T395, 478. While these activities do not alone prove
Joseph had any particular ability to concentrate on a sustained basis, they
are not consistent with an inability to follow even simple job instructions.
As noted above, a "marked" limitation meant that Joseph could not perform the function
independently, appropriately, effectively, and on a sustained basis (T506), while "fair"
meant the ability to function was "limited but satisfactory." T511 (emphasis supplied). A
marked impairment would correspond more appropriately to a rating of "poor" (i.e., the
ability was seriously limited but not precluded). T511.
15

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Nor does the record support Brune's finding of marked impairments in
concentration, persistence, and pace. T508. The VE testified that Joseph's
past job as a hotel clerk required the use of tact and diplomacy in dealing
with the general public, operating a computer accurately, and keeping
records. T241. Operating a computer throughout the day and keeping records
are tasks that require concentration, and Joseph was able to do these despite
suffering from the same mental illnesses and a drinking problem. Even if
Joseph's condition had deteriorated since then, this was accounted for in the
RFC, which limited him to simple jobs. These concentration deficits are also
inconsistent with Joseph's ability to participate well in group activities and
discussions at the day program. T537–40, 560. Finally, Brune did not support
his opinion with any clinical findings or tests. T499, 508, 511–12.
Similarly, there was no basis in the record for Brune's finding that
Joseph's activities of daily living (such as grooming) would deteriorate to
marked levels of impairment if Joseph had to return to work. The only
evidence of such marked impairments was immediately following Joseph's
release from inpatient psychiatric care. Thereafter, he was more or less able
to care for himself. Nor is there any evidence that Joseph experienced
problems with his activities of daily living when he was working from 2003 to
2008. Instead, his grandmother stated that in 2007 (when he was supposedly
doing worse, having lost his medical insurance) his grooming was normal and
his ability to do chores was "fairly normal." T211–212.
In short, the Court finds no error in the ALJ's RFC determination. The
ALJ did not summarily reject Joseph's claimed limitations, but carefully
considered them together with the entire record, and accepted those
functional limitations supported by substantial evidence. Having found the
RFC determination was supported by substantial evidence and proper
reasoning, Joseph's remaining arguments are readily disposed of.
B. Brune and Kauzlarich Were Not Treating Sources
Joseph next claims that the ALJ erred in failing to accord Brune and
Kauzlarich the status of "treating sources," or otherwise give their opinions
controlling weight. The Court finds that, even if Brune and Kauzlarich
should have been considered treating sources, the ALJ did not err in giving
their opinions less than controlling weight.
A treating source's opinion on the nature and severity of an impairment
will be given controlling weight when "well-supported by medically
acceptable clinical and laboratory diagnostic techniques" and "not
inconsistent with the other substantial evidence in [the] case record[.]" 20
C.F.R. § 404.1527(c)(2). Social Security regulations define a "treating source"
as a claimant's physician, psychologist, or other "acceptable medical source"
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who has provided the claimant with medical treatment or evaluation and has
an ongoing treatment relationship with the claimant. § 404.1502. Acceptable
medical sources are distinguished from "other sources." Sloan v. Astrue, 499
F.3d 883, 888 (8th Cir. 2007); § 404.1502. Acceptable medical sources include,
among other things, licensed physicians and licensed or certified
psychologists. Sloan, 499 F.3d at 888; § 404.1513(a). Other sources include
both "medical sources" such as nurse practitioners and physicians assistants,
and "non-medical sources" such as teachers and social workers. Sloan, 499
F.3d at 888. Only an acceptable medical source may be considered a treating
source. Id.
Considered separately, neither Brune or Kauzlarich were treating
sources. Kauzlarich did not meet with or treat Joseph often enough to have a
treatment relationship. See § 404.1502. And as an APRN, Brune was not an
acceptable medical source. However, where an acceptable medical source
such as a psychologist works with "other" medical sources as part of a
"treatment team," the entire team may be accorded treating source status.
Shontos v. Barnhart, 328 F.3d 418, 426–27 (8th Cir. 2003); see also Lacroix v.
Barnhart, 465 F.3d 881, 886 (8th Cir. 2006). Joseph asserts that Brune and
Kauzlarich worked as a team, and argues they should be considered treating
sources. See T577.
But even if that were the case, the ALJ did not err in assigning less
weight to the opinions of Brune and Kauzlarich. An ALJ may reject the
opinion of a treating source where the limitations described by the source are
not mentioned in the treatment records, nor supported by reasoning or
objective testing. See Reed v. Barnhart, 399 F.3d 917, 921 (8th Cir. 2005).
And as the Court explained above, the ALJ properly discounted the opinions
of Brune and Kauzlarich for just such reasons.
C. Activities of Daily Living
Joseph next argues that the ALJ erroneously equated his activities of
daily living with an ability to sustain full-time work. However, Joseph has
misconstrued the ALJ's findings. The ALJ considered Joseph's activities of
daily living, but never stated that these alone showed he was capable of
working, nor that these translated to any particular RFC. Instead, the record
shows that the ALJ considered Joseph's activities of daily living as part of the
record as a whole: together with his treatment records, the notes of the LFS
social workers, and all of his reported activities, including his past work
experience. See T14–18. These activities did not prove Joseph could work, but
they did demonstrate that his ability exceeded his self-reported limitations,

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which the ALJ took into account in weighing Joseph's credibility. This
argument is without merit.16
D. The ALJ Did Not Err in Weighing the Statements of Joseph's
Grandmother and Janette Bentley
Joseph next argues that the ALJ erred in affording "substantial
weight" to the statement of his grandmother and Janette Bentley, and that
their statements do not support the ALJ's findings. The Court finds no error
in this regard. Substantial evidence would have supported the ALJ's decision
even if she had completely disregarded the opinions of Joseph's grandmother.
Nor has Joseph pointed to any additional limitations in his grandmother's
letter that the Court finds persuasive. Joseph claims that the ALJ erred in
finding that Bentley's opinion supported a finding that Joseph could work.
But the ALJ did not utilize Bentley's opinion to determine what Joseph could
do; rather, the ALJ considered Bentley's opinion to be credible evidence of
limitations on his ability to work. T16.
E. The ALJ Did Not Err in Failing to Articulate a Function-byFunction Analysis of Joseph's RFC
Finally, Joseph argues that the ALJ erred by failing to perform a
"function-by-function" analysis of his RFC. As discussed above, the RFC
determination for mental impairments involves a detailed assessment that
itemizes
the
broad
paragraph
"B"
criteria
used
at
step
two. See, §§ 404.1545(c) and 404.1569a(c); SSR 96-8p. But there is a
difference between what the ALJ must consider and what the ALJ must
explain. The ALJ's opinion shows that she understood the requirements of
SSR 96-8p and carefully considered all of the limitations suggested by Joseph
and his treatment providers, and incorporated those she found credible into
the RFC. T14–18. But the ALJ was not required to make explicit findings for
every aspect of Joseph's RFC. Depover v. Barnhart, 349 F.3d 563, 567–68 (8th
Cir. 2003); see also Bayliss, 427 F.3d at 1217. This final argument is also
without merit.
CONCLUSION
The Court has reviewed the administrative record and finds that the
ALJ did not err in any of the ways asserted by Joseph. The Court therefore
The ALJ did state that Joseph could manage his own money, which is not borne out by
the record. T216–17. But Joseph has not shown how he was prejudiced by this
misstatement, and the Court finds that any error was harmless. The ALJ otherwise
properly summarized Joseph's activities of daily living and did not afford them undue
weight.
16

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concludes that the Commissioner's decision was supported by substantial
evidence and should be affirmed.
IT IS ORDERED:
1.

The Commissioner's decision is affirmed;

2.

Joseph's complaint is dismissed;

3.

The parties shall bear their own costs; and

4.

A separate judgment will be entered.

Dated this 26th day of April, 2013.
BY THE COURT:

John M. Gerrard
United States District Judge

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