Gaines v. Colvin

Filing 22

MEMORANDUM AND ORDER - IT IS ORDERED that judgment shall be entered by separate document providing that the decision of the Commissioner is affirmed. Ordered by Magistrate Judge F.A. Gossett. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JAMIE L. GAINES,
Plaintiff,
V.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

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8:15CV207

MEMORANDUM AND ORDER

Plaintiff Jamie Gaines claims in this Social Security appeal that the Commissioner's
decision to deny her supplemental security income under the Social Security Act (the “Act”)
is contrary to law and not supported by substantial evidence. For the reasons explained
below, the Commissioner’s decision will be affirmed.
PROCEDURAL BACKGROUND
Plaintiff applied for benefits in February, 2012, alleging disability due to
fibromyalgia, anxiety, bipolar disorder, post-traumatic stress disorder, asthma, fatigue, club
feet, arthritis, anemia, fear of bridges over water, gastroesophageal reflux disease, pinched
discs in her back, and neurological damage to her legs and feet. Plaintiff’s application was
denied initially and on reconsideration. Plaintiff appealed the denial to an administrative law
judge (“ALJ”). After an administrative hearing, the ALJ issued an unfavorable decision on
March 10, 2014. (Tr. 10-38.)
In her decision, the ALJ evaluated Plaintiff’s claim using the “five-step” sequential
analysis prescribed by the Social Security Regulations.1 See 20 C.F.R. §§ 404.1520 and
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The Social Security Administration uses a five-step process to determine whether
a claimant is disabled.
At the first step, the claimant must establish that he has not

416.920. In doing so, the ALJ found that Plaintiff has the severe impairments of status post
gastric bypass, bipolar disorder, oppositional defiance disorder, PTSD, history of club foot
deformity repairs, history of fibromyalgia, and left arm tendinitis. (Tr. 16.) The ALJ found
that Plaintiff has the residual functional capacity (“RFC”)2 to lift/carry/push/pull twenty
pounds occasionally and ten pounds frequently, sit four hours in an eight-hour workday, and
stand and walk four hours in an eight-hour workday. (Tr. 18.) Plaintiff can occasionally
climb and must alternate sitting and standing ever thirty minutes. (Id.) She can perform
simple instructions that are repetitive and routine and do not involve multitasking and she
must have only brief, superficial interaction with the public, coworkers, and supervisors.
(Id.) The ALJ stated that although Plaintiff could not perform her past relevant work, there
are jobs in the national economy that Plaintiff is able to perform. (Tr. 30-31.) Therefore, the
ALJ concluded that Plaintiff was not entitled to benefits.
Plaintiff requested review of the ALJ’s decision by the Appeals Council of the Social
Security Administration (“Appeals Council”). The Appeals Council denied review, making

engaged in substantial gainful activity. The second step requires
that the claimant prove he has a severe impairment that
significantly limits his physical or mental ability to perform
basic work activities. If, at the third step, 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. If the claimant cannot carry this burden, however, step
four requires that the claimant prove he lacks the RFC to
perform his past relevant work. Finally, if the claimant
establishes that he cannot perform his past relevant work, the
burden shifts to the Commissioner at the fifth step to prove that
there are other jobs in the national economy that the claimant
can perform.
Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006).
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RFC, or “residual functional capacity,” is what the claimant is able to do despite
limitations caused by all of the claimant’s impairments. Lowe v. Apfel, 226 F.3d 969, 972
(8th Cir. 2000).
.
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the ALJ’s decision the final decision of the Commissioner of Social Security.
On appeal, Plaintiff contends that the ALJ’s RFC assessment is inconsistent with the
ALJ’s own findings and unsupported by the evidence. Plaintiff also claims that the
hypothetical question posed to the vocational expert was improper and does not constitute
reliable, substantial evidence. The Court will consider each of these arguments below.
ANALYSIS
A denial of benefits by the Commissioner is reviewed to determine whether the denial
is supported by substantial evidence on the record as a whole. Hogan v. Apfel, 239 F.3d 958,
960 (8th Cir. 2001) (quotation omitted). “Substantial evidence is less than a preponderance,
but is enough that a reasonable mind would find it adequate to support the Commissioner’s
conclusion.” Id. at 960-61. Evidence that both supports and detracts from the
Commissioner’s decision must be considered, but the decision may not be reversed merely
because substantial evidence exists for a contrary outcome. See Moad v. Massanari, 260
F.3d 887, 890 (8th Cir. 2001).
Plaintiff argues that the ALJ did a poor job evaluating the medical evidence. Plaintiff
maintains that the ALJ improperly weighed the medical evidence by discounting the opinions
of examining providers and, instead, relying on the opinions of non-treating experts to
formulate Plaintiff’s RFC. According to Plaintiff, the ALJ “cherry-picked” the record by
pulling out clinical entries unfavorable to Plaintiff, while ignoring those supporting
Plaintiff’s claim of disability. Plaintiff claims that the RFC assessment does not adequately
address Plaintiff’s limited ability to deal with stress, interact with co-workers, perform at
pace, accept instructions, maintain regular attendance, or avoid uncontrolled crying spells.
Plaintiff further asserts that the RFC does not address Plaintiff’s need for frequent and
unscheduled rests or the three absences per month that three treating sources predicted.
Plaintiff claims that the RFC finding is also inconsistent with the low Global Assessment of
Functioning (“GAF”) scores noted by two treating physicians.
“A treating physician's opinion is given controlling weight if it is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent
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with the other substantial evidence.” Medhaug v. Astrue, 578 F.3d 805, 815 (8th Cir. 2009)
(quotation omitted). However, a treating physician's opinion “does not automatically control
in the face of other credible evidence on the record that detracts from that opinion.” Heino
v. Astrue, 578 F.3d 873, 880 (8th Cir. 2009). “An ALJ may credit other medical evaluations
over that of the treating physician when such other assessments are supported by better or
more thorough medical evidence.” Id. (quotation omitted).
An ALJ may not, however, cherry-pick inconsistencies between a treating physician’s
opinion and the record to discount the physician’s opinion. Denton v. Astrue, 596 F.3d 419,
425 (7th Cir. 2010). “An ALJ has the obligation to consider all relevant medical evidence
and cannot simply cherry-pick facts that support a finding of non-disability while ignoring
evidence that points to a disability finding.” Id. Still, “an ALJ need not mention every piece
of evidence, so long he builds a logical bridge from the evidence to his conclusion.” Id.
The evidence does not support Plaintiff’s contention that the ALJ “cherry-picked” the
record, or improperly discounted medical opinions. The ALJ addressed the limitations
alleged by Plaintiff, but simply did not assign as much significance to those limitations as
Plaintiff would have liked. For instance, Plaintiff points to the opinion of consultative
psychologist Dr. A. James Fix as an example of medical evidence ignored by the ALJ.
However, the ALJ’s opinion discusses Dr. Fix’s diagnosis, as well as the GAF score assessed
by Dr. Fix. (Tr. 21, 379.) Although the ALJ did not attribute much weight to Dr. Fix’s GAF
assessment, this was not improper. See Jones v. Astrue, 619 F.3d 963, 973 (8th Cir. 2010)
(“[A]n ALJ may afford greater weight to medical evidence and testimony than to GAF scores
when the evidence requires it.”) (quotation omitted). Although Plaintiff claims that the ALJ
rejected Dr. Fix’s opinion that Plaintiff would not be able to relate appropriately with coworkers, the ALJ did, in fact, incorporate this restriction in Plaintiff’s RFC. (Tr. 18.)
Similarly, the ALJ properly evaluated the opinion of Plaintiff’s psychologist, Dr.
Nathan Sudbeck. Dr. Sudbeck opined that Plaintiff’s emotional dysfunction limited her
ability to acquire and maintain employment. (Tr. 27, 578.) Dr. Sudbeck also opined that
Plaintiff would perform unskilled work tasks at a slower pace than unimpaired workers. (Tr.
28, 585.) The ALJ provided numerous reasons for discounting Dr. Sudbeck’s opinion. For
instance, in December, 2012, Plaintiff told Dr. Sudbeck things were going well. (Tr. 28,
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605.) At that time, Plaintiff explained that she participated in a holiday celebration and had
an improved level of depression. (Id.) At her next appointment, Plaintiff brought her baby
and expressed that she was motivated by being a positive parent. (Tr. 28, 606.) In June,
2013, Plaintiff reported depression, but stated she was functioning well and able to stay
active to care for her daughter. (Tr. 28, 626.) In August 2013, Plaintiff was unhappy, but
planning to attend a concert. (Tr. 28, 635.) In September, 2013, Dr. Sudbeck noted that
Plaintiff was friendly, talkative, and functioning relatively well. (Tr. 28, 636.) There is no
evidence that the ALJ cherry-picked Dr. Sudbeck’s records, as the ALJ also pointed to
evidence supporting Plaintiff’s claimed limitations, including Plaintiff’s report to Dr.
Sudbeck that she was having increased depression in August, 2013. (Tr. 28, 635.)
The ALJ also considered the opinion of Josalynn Swan, PA-C, who treated Plaintiff
for her physical impairments. Ms. Swan opined that Plaintiff would likely be absent from
work three or more days per month, and that Plaintiff’s pain, fatigue, or nausea would
compromise her ability to maintain sustained concentration for simple tasks for three or more
days per month. (Tr. 26, 591-92.) In evaluating Ms. Swan’s opinion, the ALJ considered
the inconsistencies between it and Plaintiff’s daily activities, which included living alone,
taking care of a small child, going to the grocery store, doing laundry, attending church, and
handling her own money. (Tr. 222.) The ALJ also found that Ms. Swan’s treatment notes
were inconsistent with her opinion. For instance, in January, 2013, Ms. Swan’s notes reflect
that Plaintiff was not anxious, her affect was normal, and her memory was intact. (Tr. 22,
651.) At that time, Plaintiff reported that a splint for her wrist worked well. (Tr. 650.)
Moreover, in September 2013, Plaintiff told Ms. Swan that recent weather changes had
caused muscle aches, but her fibromyalgia had been well controlled and a B12 shot made a
big difference for her. (Tr. 22, 673.) In short, the ALJ did not improperly find that the
evidence does not support Ms. Swan’s opinion as to Plaintiff’s limitations.
The same is true with respect to the opinions held by Dr. Imad Alsakof and Barbara
Thaler, ARNP. Ms. Thaler completed a mental RFC questionnaire in 2014, which was then
signed by Dr. Alsakap. (Tr. 563-69.) Ms. Thaler opined that Plaintiff had a marked
limitation in the ability to deal with work stress and that she had an extreme limitation in the
ability to complete a normal workday. (Tr. 563-65.) The ALJ assigned little weight to this
opinion, however, asserting that it was inconsistent with Ms. Thaler’s treatment notes and
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the overall record. (Tr. 29.) The ALJ pointed out that in April, 2013, Plaintiff reported that
her medications were working. (Tr. 29, 611, 619.) Ms. Thaler also noted in her records that
Plaintiff’s mood swings had stabilized. (Tr. 29, 619.) Although Plaintiff reported weekly
panic attacks in September 2013, by the next month she reported that medication had helped.
(Tr. 29, 637-38, 717.)
The Court concludes that the ALJ properly weighed the evidence of record. The
Court further finds that there is no indication that the ALJ ignored evidence in assessing
Plaintiff’s RFC. Therefore, the Court rejects Plaintiff’s arguments relating to the ALJ’s
evaluation of medical evidence.
Plaintiff also claims the ALJ erred in relying upon the opinions of non-treating
experts. Plaintiff argues that these experts did not have access to all treating source opinions
or certain medical records. The Court is not persuaded by this argument. The mere fact that
additional evidence became available after these medical experts issued their opinions does
not automatically render them unreliable. See Chandler v. Commissioner of Social Security,
667 F.3d 356, 361 (3d Cir. 2011) (“[B]ecause state agency review precedes ALJ review,
there is always some time lapse between the consultant’s report and the ALJ hearing and
decision. The Social Security regulations impose no limit on how much time may pass
between a report and the ALJ’s decision in reliance on it.”). The ALJ considered all the
record evidence in assessing Plaintiff’s RFC, including evidence submitted after the state
agency medical experts issued their opinions.
Plaintiff also contends that because the hypothetical question posed to the vocational
expert failed to fully describe Plaintiff’s impairments, the expert’s testimony on Plaintiff’s
ability to work does not constitute substantial evidence to support a finding of no disability.
“A hypothetical is sufficient if it sets forth impairments supported by substantial evidence
in the record and accepted as true by the ALJ.” Davis v. Apfel, 239 F.3d 962, 966 (8th Cir.
2001). The hypothetical adequately reflected the impairments that were consistent with the
record as a whole. Therefore, the ALJ properly relied on the vocational expert’s testimony
in concluding that Plaintiff was not disabled.

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CONCLUSION
For the reasons stated, and after careful consideration of each argument presented in
Plaintiff’s brief, I find that the Commissioner’s decision is supported by substantial evidence
on the record as a whole and is not contrary to law.
Accordingly,
IT IS ORDERED that judgment shall be entered by separate document providing that
the decision of the Commissioner is affirmed.
DATED February 16, 2016.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

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