DeBord v. Colvin

Filing 17

MEMORANDUM AND ORDER that Defendant Carolyn Colvin's Motion Affirm Commissioner's Decision, ECF No. 14 , is granted. Plaintiff Paige Debord's Motion to Reverse Commissioners Decision, ECF No. 16 , is denied. The Commissioner's decision is affirmed. The appeal is denied. A separate judgment will be entered. Ordered by Chief Judge Laurie Smith Camp. (LAC)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
PAIGE D. DEBORD,
Plaintiff,

8:16CV210

v.
CAROLYN W. COLVIN, Commissioner
of Social Security;

MEMORANDUM
AND ORDER

Defendant.

This matter is before the Court the Motion to Reverse Commissioner’s Decision,
ECF No. 16, filed by Plaintiff Paige Debord, and the Motion to Affirm Commissioner’s
Decision, ECF No. 14, filed by Defendant Carolyn Colvin, Commissioner of Social
Security. Both motions are filed pursuant to Title XVI of the Social Security Act (the
“Act”), 42 U.S.C. §§ 1381–85. For the reasons stated below, the Motion to Reverse will
be denied, and the Motion to Affirm will be granted.
PROCEDURAL HISTORY
Debord filed for Title II benefits on December 2, 2013. Tr. 73.1 Debord’s claim
was denied initially, and on reconsideration, and a hearing was held on February 13,
2015.

The ALJ issued an opinion on March 26, 2015, denying benefits.

Debord

requested review of the ALJ decision by the Appeals Council, which denied the request,
thus making the ALJ’s decision final. Tr. 1.
An ALJ is required to follow a five-step sequential analysis to determine whether
a claimant is disabled. See 20 C.F.R. § 404.1520(a). The ALJ must continue the
analysis until the claimant is found to be “not disabled” at steps one, two, four or five, or
1

Pinpoint citations to the transcript of the Administrative Record (“Tr.”) shall be to the
consecutively numbered pages in the record rather than to the Page ID of the docket.

is found to be “disabled” at step three or step five. See id. Step one requires the ALJ to
determine whether the claimant is currently engaged in substantial gainful activity. See
20 C.F.R. § 404.1520(a)(4)(i), (b). The ALJ found that Debord had not been engaged in
substantial gainful activity since November 16, 2013, which was her reported onset
date. Tr. 13.
Step two requires the ALJ to determine whether the claimant has a “severe
impairment.” 20 C.F.R. § 404.1520(c). A “severe impairment” is an impairment or
combination of impairments that significantly limits the claimant’s ability to do “basic
work

activities”

and

satisfies

the

“duration

requirement.”

See

20

C.F.R.

§§ 404.1520(a)(4)(ii), (c), 404.1509 (“Unless your impairment is expected to result in
death, it must have lasted or must be expected to last for a continuous period of at least
12 months.”).

Basic work activities include “[p]hysical functions such as walking,

standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling”; “[c]apacities
for seeing, hearing, and speaking”; “[u]nderstanding, carrying out, and remembering
simple instructions”; “[u]se of judgment”; “[r]esponding appropriately to supervision, coworkers and usual work situations”; and “[d]ealing with changes in a routine work
setting.” 20 C.F.R. § 404.1521(b). If the claimant cannot prove such an impairment, the
ALJ will find that the claimant is not disabled. See 20 C.F.R. § 404.1520(a)(4)(ii), (c).
The ALJ found that Debord had the following severe impairments: major depression,
generalized anxiety disorder, post-traumatic stress disorder (“PTSD”), borderline
personality disorder, and a history of alcohol and opioid dependence. Tr. 13.
Step three requires the ALJ to compare the claimant’s impairment or impairments
to a list of impairments. See 20 C.F.R. § 404.1520(a)(4)(iii), (d); see also 20 C.F.R. Part
2

404, Subpart P, App’x 1 (20 C.F.R. §§ 416.920(d), 416.925 and 416.926).

If the

claimant has an impairment “that meets or equals one of [the] listings,” the analysis
ends and the claimant is found to be “disabled.” See 20 C.F.R. § 404.1520(a)(4)(iii),
(d). If a claimant does not suffer from a listed impairment or its equivalent, then the
analysis proceeds to steps four and five. See 20 C.F.R. § 404.1520(a). The ALJ found
that Debord did not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments. Tr. 14.
Step four requires the ALJ to consider the claimant’s residual functional capacity
(“RFC”)2 to determine whether the impairment or impairments prevent the claimant from
engaging in “past relevant work.” See 20 C.F.R. § 404.1520(a)(4)(iv), (e), (f). If the
claimant is able to perform any past relevant work, the ALJ will find that the claimant is
not disabled. See 20 C.F.R. § 404.1520(a)(4)(iv), (f). The ALJ found that Debord had
the RFC to perform a full range of work at all exertional levels but also that Debord was
limited to simple, repetitive, and routine work tasks with only simple workplace decisionmaking and only occasional interactions with the public. Tr. 16. The ALJ found that
Debord was unable to perform past relevant work as a forklift driver, which involved
greater capacity for understanding, remembering, carrying out complex tasks than could
be tolerated under Debord’s RFC. Tr. 20–21.
At step five, the ALJ must determine whether the claimant is able to do any other
work considering her RFC, age, education, and work experience.

20 C.F.R.

§ 404.1520(g). If the claimant is able to do other work, she is not disabled. The ALJ
2

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

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determined that there are jobs that exist in significant numbers in the national economy
that Debord could perform, and, therefore, Debord was not disabled from November 16,
2013, to the date of the decision, March 26, 2015. Tr. 21–22.
FACTUAL BACKGROUND
Debord was born in 1967, Tr. 11, and graduated from high school in 1985. Tr.
498. She previously worked as a forklift operator, a position classified as semi-skilled
and medium exertion. Tr. 231.
I. Medical Opinion Evidence
From December 12, 2013, to December 2, 2014, Debord was seen multiple
times by therapists at Inroads Counseling. Throughout these visits, Debord retained a
Global Assessment of Functions (“GAF”) score of 50.3 Tr. 390, 392, 394, 397, 399,
401, 404, 435, 437, 439, 441, 443, 445, 447, 449, 452, 455, 461, 464, 466, 468, 470.
At her October 2014 and November 2014 appointments, she was recorded as having
no suicidal thoughts or sleep difficulties, and her thought process was listed as goal
directed. Tr. 467–70.

Although she stated she was able to maintain household

responsibilities at her October appointment, Tr. 467, she stated she could no longer
maintain them by November. Tr. 469. As of December 3, 2014, she was listed as
taking Zoloft, Wellbutrin SR, Trazodone, Xanax as needed, Buspar, and Hydroxine. Tr.
472.

3

A GAF score of 41 to 50 indicates serious impairments of function, while a score of 51 to 60
indicates moderate difficulty in occupational functioning. American Psychiatric Association, The
Diagnostic and Statistical Manual of Mental Disorders [hereinafter DSM-IV], at 34 (Am. Psychiatric Ass’n
4th ed.) (1994). Thus, Debord scored on the high end of serious impairment, one point away from having
only moderate symptoms.

4

On December 15, 2013, Debord’s spouse, Jesse Debord completed a
questionnaire describing his wife’s behavior. Jesse Debord noted that his wife did not
have much interest in television, socializing, or other activities she used to enjoy, such
as crocheting. Tr. 198–99. In stressful situations, Jesse Debord stated that his wife
“look[ed] overwhelmed,” became “panicky” and “very quiet,” and would cry. Tr. 199. He
also stated that when plans or “situations suddenly change[d],” she would not “react
well” and “kind of panic.” Tr. 199. Jesse Debord reported that Debord took care of their
daughter and did some chores. He also mentioned that she got along well with clerks
when he took her to the store, and that her ability to care for herself had not been
affected by the suicide attempt. Tr. 198. He ended the report stating that his wife was a
very active individual but very depressed and inactive following a suicide attempt. Tr.
200.
On November 24, 2014, Debord was evaluated for psychological functioning by
Rosanna Jones-Thurman, Ph.D. Jones-Thurman first noted that Debord’s “response
style may indicate a broad tendency to magnify the level of experienced
illness . . . .” Tr. 502. Jones-Thurman reported that Debord “evinces an agitated, major
depression” and that she “anxiously expressed suicidal thoughts, and outbursts of bitter
resentment interwoven with a demanding irritability towards others.” Tr. 504. JonesThurman stated that Debord “appears to be experiencing a severe psychotic episode
characterized by bizarre thinking and fragmented emotions, perhaps a phase of an
extended schizophrenic course.”

Tr. 504.

Jones-Thurman noted that Debord’s

“memory for immediate, recent, and remote events was grossly intact,” that “[h]er
concentration and attention were intact,” and that [h]er thought organization was
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coherent and logical.”

Tr. 501. Jones-Thurman’s diagnostic impressions included

Schizoaffective Disorder, Generalized Anxiety Disorder, Post-Traumatic Stress
Disorder, Alcohol Use Disorder, and Schizoid Personality Disorder. Tr. 506. She did
not assign a GAF score.
On January 5, 2015, Debord was evaluated for psychological functioning by
Patricia Blake, Ph.D. Tr. 473–81. Blake found that Debord was “oriented,” but that she
“acted puzzled for purposes of the interview.” Tr. 475. Blake observed that Debord was
“irritable and rather agitated” and that her “[a]ffect was variable and occasionally
inappropriate.” Tr. 475.
Blake found that Debord’s answer to certain questions “suggest[ed] adequate
concentration needed for task completion.” Tr. 475. Blake concluded that Debord has
“slight” impairment when it came to “carry[ing] out detailed instructions” and “[t]he ability
to make judgments on simple work-related decisions,” but no other work-related
impairments.

Tr. 477–78.

Blake estimated that Debord had a GAF score of 64,

indicating a mild range of symptoms.4 Tr. 476.
On January 9, 2015, Debord was evaluated for psychological functioning by
Michael Coy, M.D. Tr. 482–89. Coy completed a medical source statement, in which
he diagnosed Debord with Schizoaffective Disorder, Generalized Anxiety, PTSD, and
“Borderline Personality.” Tr. 482. He concluded that “Schizoaffective Disorder prevents
[Debord] from working,” and assigned her a GAF score of 35.5 Tr. 482, 485–86.

4

DSM-IV, supra, at 34.
A GAF score of 35 indicates major impairments in several areas, including the ability to work.
DSM-IV, supra, at 34.
5

6

On January 8, 2014, Lisa Schmechel, Ph.D., a non-examining psychological
consultant, evaluated Debord for psychological functioning as part of the initial disability
determination. Tr. 72–80. On February 6, 2014, Rebecca Braymen, Ph.D., another
non-examining psychological consultant, evaluated Debord for psychological functioning
as part of the reconsideration disability determination.

Tr. 82–91.

Both found the

claimant to have, at most, moderate limitations in terms of her memory and ability to
follow instructions for work tasks.
II. Hearing Evidence
Debord testified that she was unable to work due to her fragile mental state and
that she suffered from anxiety, depression, and an inability to concentrate.

Debord

worked as a forklift operator for fifteen years, Tr. 41, and she testified that her work was
satisfactory to her employer for the most part. Tr. 49. However, she began calling in
sick frequently due to her anxiety. Tr. 50. When she was at work, she would need to
go to a secluded area or the restroom to cry and calm down, often doing so multiple
times within a sixty-minute period. She testified that she would often take different
routes to the restroom to conceal how frequently she was going. Tr. 50.
Debord was no longer working as a forklift operator at the time of the hearing.
She testified that she struggled to perform household chores during her time at home.
Tr. 42–43. While she would make the bed daily and did some laundry, a task such as
cleaning the bathroom could take up to two hours. Tr. 49. Debord testified that she
only minimally assisted in the raising of her daughter, who was almost ten years old at
the time of the hearing. Tr. 42. She testified that she could not concentrate sufficiently
to use a computer. Tr. 44–45.
7

At the time of the hearing, she was experiencing panic attacks three to five times
a week. Tr. 44. She also experienced nightmares and racing thoughts on a nightly
basis, which interfered with her sleep and led to fatigue. Tr. 53–54. She testified that
she experienced crying spells several times daily. Tr. 52.
Debord testified that she had difficulty attending social events or running errands
out of her house. Tr. 45–46. She used to go to church but could not get through the
service without having to leave early.

Tr. 45.

When she attended her daughter’s

swimming events, the heat and commotion would require her to step out frequently and
“go in the bathroom and deal with [her anxiety].” Tr. 46. She could only recall one
instance where she had gone to a store without her husband in the recent past, and that
doing so tended to trigger an anxiety attack. Tr. 43. She testified that her mood swings
made her irritable and that she tended to “just blow up” with people. Tr. 53. Although
she used to take walks outside to manage her stress, her fear of being attacked by
people she encountered prevented her from continuing to do so. Tr. 55.
She also testified to seeing things that were not there when she was a passenger
in cars and that, when she goes to bed, she hears human voices that are not present,
such that “[i]t sounds like a cocktail party, people talking.” Tr. 55–56.
Debord testified to abusing alcohol on at least one occasion, in November of
2013, when she became severely intoxicated, ingested “two handfuls” of Benadryl, and
was admitted to an ICU. Tr. 50. Her testimony indicates that it was at least her fourth
suicide attempt. Tr. 54. She testified that she had not abused drugs or alcohol since
that time. Tr. 50.

8

She testified to taking Zoloft, Xanax, Trazadone for sleep, and Wellbutrin SR.
She claimed to have taken at least four Xanax prior to testifying the day of the hearing.
Tr. 57.
Steven Kuhn, a vocational expert, also testified at the hearing. Tr. 58. While
testifying, the ALJ posed a hypothetical question to Kuhn:
Assuming a hypothetical individual the same age, education and
past work as an industrial truck operator, forklift operator. Further, the
individual is limited to only simple, routine and repetitive work. Specifically
requires only simple work-related decisions. And the individual should
have only occasional interaction with the general public. Could the
hypothetical individual do the past work of the claimant as either actually
or generally performed?
Tr. 60.
Kuhn stated that such a hypothetical claimant could not perform work as a forklift
operator, because such work is semi-skilled. Tr. 60. However, Kuhn stated that the
hypothetical person could perform other work that existed in the national economy, such
as a production assembler, for which there exist about 200,000 positions nationally, and
as a cleaner, for which there exist about 350,000 positions nationally. Tr. 60. The ALJ
then posed a second hypothetical question:
Now if we take that hypothetical individual and the same
hypothetical, but adding that given psychiatric symptoms and difficulty
such as focusing, the individual would need at least two additional
unscheduled breaks during the workday. And would be absent from work
more than four days per month. I’m presuming the past work would
remain unavailable. So would the hypothetical individual be able to
perform any other work?
Tr. 61.

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Kuhn testified that under the second hypothetical, the individual would not be
able to maintain work as it is typically performed in the national economy, primarily due
to the absenteeism. Tr. 61–62.
STANDARD OF REVIEW
“When considering whether the ALJ properly denied social security benefits, [the
Court] determine[s] whether the decision is based on legal error, and whether the
findings of fact are supported by substantial evidence in the record as a whole.” Collins
v. Astrue, 648 F.3d 869, 871 (8th Cir. 2011) (internal quotation marks omitted) (quoting
Lowe v. Apfel, 226 F.3d 969, 971 (8th Cir. 2000)). “Substantial evidence is less than a
preponderance but enough that a reasonable mind might accept as adequate to support
the conclusion.” Kamann v. Colvin, 721 F.3d 945, 950 (8th Cir. 2013) (internal citations
omitted). A decision supported by substantial evidence may not be reversed, “even if
inconsistent conclusions may be drawn from the evidence, and even if [the court] may
have reached a different outcome.” McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir.
2010). Nevertheless, the Court’s “review extends beyond examining the record to find
substantial evidence in support of the ALJ’s decision.” Moore v. Astrue, 623 F.3d 599,
602 (8th Cir. 2010) (internal quotation marks omitted) (quoting Cox v. Astrue, 495 F.3d
614, 617 (8th Cir. 2007)). The Court must “also consider evidence in the record that
fairly detracts from that decision.” Id. (internal quotation marks omitted) (quoting Cox,
495 F.3d at 617).
Additionally, the Court must determine whether the Commissioner’s decision “is
based on legal error.” Collins, 648 F.3d at 871 (quoting Lowe v. Apfel, 226 F.3d 969,
971 (8th Cir. 2000)). “Legal error may be an error of procedure, the use of erroneous
10

legal standards, or an incorrect application of the law.” Id. (internal citations omitted)
(citing Brueggemann v. Barnhart, 348 F.3d 689, 692 (8th Cir. 2003); Nettles v.
Schweiker, 714 F.2d 833, 836 (8th Cir. 1983)).
Commissioner’s legal conclusions.

No deference is owed to the

Brueggemann, 348 F.3d at 692 (stating that

allegations of legal error are reviewed de novo).
DISCUSSION
First, Debord argues that the ALJ’s decision is not supported by substantial
evidence based on the record as a whole. Namely, Debord argues that the ALJ erred
by assigning only little weight to the opinion of Debord’s treating physician, Dr. Michael
Coy. The ALJ assigned little weight to the opinion because Coy’s conclusions were
“simply inconsistent with any previous or subsequent medical evidence of record,”
which consistently showed a GAF score of 50 or above. Tr. 19. Debord argues that
this conclusion violates the Treating Source Rule and is erroneous.
Under the Treating Source Rule, a treating source’s opinion on the nature and
severity of a claimant’s impairments will be given controlling weight if it “is not
inconsistent with the other substantial evidence” in the case record.

20 C.F.R.

§ 404.1527; see Dolph v. Barnhart, 308 F.3d 876, 878 (8th Cir. 2002)). Also, “[e]ven if
the [treating physician's] opinion is not entitled to controlling weight, it should not
ordinarily be disregarded and is entitled to substantial weight.” Papesh v. Colvin, 786
F.3d 1126, 1132 (8th Cir. 2015) (internal quotation marks omitted) (alteration in orginal)
(quoting Samons v. Astrue, 497 F.3d 813, 818 (8th Cir. 2007)).
However, “a treating physician’s opinion does not automatically control, since the
record must be evaluated as a whole.” Renstrom v. Astrue, 680 F.3d 1057, 1064 (8th
11

Cir. 2012) (internal quotation marks omitted) (quoting Perkins v. Astrue, 648 F.3d 892,
897 (8th Cir. 2011)). “Opinions of treating physicians typically are entitled to at least
substantial weight, but may be given limited weight if they are conclusory or inconsistent
with the record.” Julin v. Colvin, 826 F.3d 1082, 1088 (8th Cir. 2016). Also, “an ALJ
may discount or even disregard the opinion of a treating physician where other medical
assessments are supported by better or more thorough medical evidence, or where a
treating physician renders inconsistent opinions that undermine the credibility of such
opinions.” Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015) (internal quotation marks
omitted) (quoting Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010)).
As the ALJ stated, Dr. Coy’s opinion was inconsistent with the other substantial
evidence in the record as well as Dr. Coy’s prior examinations.

This included the

opinions of both non-examining consultants, Schmechel and Braymen.

While non-

examining reports do not, in and of themselves, constitute substantial evidence on the
record, Brock v. Secretary of Health and Human Services, 791 F.2d 112, 114 (8th Cir.
1986), the reports in this case do not stand alone.

Debord’s records at Inroads

counseling show a consistent GAF score of 50 over twenty-two visits, spanning twelve
months.

Tr. 390–470.

Coy’s own notes state that Debord was maintaining

responsibilities at home and that her thought process was goal-directed with average
productivity. Tr. 467–70.
Because of the evidence in the record and the inconsistencies in Coy’s reports,
the ALJ’s decision to afford little weight to Coy’s opinion is not error. See Anderson v.
Shalala, 51 F.3d 777, 779 (8th Cir. 1995) (finding no error where ALJ discounted

12

treating source opinion because ALJ “did not rely solely on the reviewing physicians”
and “conducted an independent analysis of the medical evidence”).
Debord also argues that the ALJ erroneously assigned great or substantial
weight to the opinions of Jones-Thurman and Blake.

Debord argues that the ALJ

“glossed over” the portions of Jones-Thurman’s report that indicated more severe
impairment while adopting her moderate impairment indicators. ECF No. 13, Page ID
575. Debord states that the ALJ should not have relied on Blake’s report, because it
was so “divergent” from the ALJ’s conclusions. ECF No. 13, Page ID 576. Both reports
provide substantial support to the ALJ’s decision, and both are more consistent with the
overall record than Coy’s opinion.
As with Jones-Thurman and Blake, Debord claims the ALJ relied on Debord’s
spouse’s opinion while overlooking the “severe limitations he reported.” ECF No. 13,
Page ID 577. Debord’s spouse testified that he took Debord to stores where she “[got]
along with clerks,” and that she cared for their daughter; and his testimony was
consistent with the bulk of the record suggesting that Debord had moderate limitations.
Tr. 198–99. The ALJ properly relied on it in reaching his overall conclusion, which is
supported by substantial evidence in the record.
Debord also argues that the testimony of the vocational expert did “not constitute
substantial evidence upon which the ALJ can rely.”

ECF No. 13, Page ID 578.

Essentially, Debord argues that because the hypothetical questions which the ALJ
posed to the vocational expert were based on the ALJ’s erroneous RFC finding, the
questions did not accurately reflect Debord’s actual limitations. While “testimony elicited
by hypothetical questions that do not relate with precision all of a claimant’s
13

impairments cannot constitute substantial evidence,” KKC ex rel. Stoner v. Colvin, 818
F.3d 364, 378 (8th Cir. 2016) (internal quotation marks omitted) (quoting Ekeland v.
Bowen, 899 F.2d 719, 722 (8th Cir.1990)), such is not the case here. Rather, for the
reasons stated above, the ALJ’s findings regarding Debord’s RFC were supported by
substantial evidence in the record. Therefore, the questions posed to the vocational
expert accurately reflected Debord’s limitations, and the ALJ could rely upon the
vocational expert’s responses. See Hlebechuk v. Massanari, 18 F. App'x 446, 448 (8th
Cir. 2001) (citing Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001); Goose v. Apfel, 238
F.3d 981, 985 (8th Cir. 2001)) (“[A] vocational expert need only consider impairments
supported by substantial evidence in the record and accepted by the ALJ as true.”).
CONCLUSION
For the reasons stated above, the ALJ’s conclusions are not erroneous and are
supported by substantial evidence appearing on the record. The Motion to Reverse will
be denied, and the Motion to Affirm will be granted. Accordingly,
IT IS ORDERED:
1. Defendant Carolyn Colvin’s Motion Affirm Commissioner’s Decision, ECF No. 14,
is granted;
2. Plaintiff Paige Debord’s Motion to Reverse Commissioner’s Decision, ECF No.
16, is denied;
3. The Commissioner’s decision is affirmed;
4. The appeal is denied;
5. A separate judgment will be entered.

14

Dated this 22nd day of December, 2016
BY THE COURT:
s/Laurie Smith Camp
Chief United States District Judge

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