PATRICK J. SCHILTZ, District Judge.
This matter is before the Court on plaintiff Chong Vang's objection to the February 11, 2013 Report and Recommendation ("R & R") of Magistrate Judge Janie S. Mayeron. Judge Mayeron recommends granting defendant's motion for summary judgment and denying Vang's motion for summary judgment. The Court has conducted a de novo review. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Based on that review, the Court adopts Judge Mayeron's R & R. Only two issues merit comment:
First, Vang objects that the Administrative Law Judge ("ALJ") gave insufficient weight to the opinion of her treating psychotherapist, Dr. Jonathan Hoistad. A treating doctor's opinion "is afforded less deference when the medical evidence in the record as a whole contradicts the opinion itself." Haggard v. Apfel, 175 F.3d 591,
Second, Vang argues that both the ALJ and the R & R placed undue weight on the opinion of Dr. Karen Butler, who did not treat or examine Vang. But Butler's opinions were not the sole basis for any of the ALJ's findings; the R & R describes other evidence in the record supporting each of those findings.
This is a close case. Reasonable ALJs could disagree about whether Vang is disabled, and reasonable judges could disagree about whether the ALJ's decision in this case is supported by substantial evidence on the record as a whole. Having closely examined the record and Judge Mayeron's careful and thorough R & R, the Court concludes that the ALJ's decision "`falls within the available zone of choice.'" Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir.2011) (quoting Bradley v. Astrue, 528 F.3d 1113, 1115 (8th Cir.2008)).
Based on the foregoing, and on all of the files, records, and proceedings herein, the Court ADOPTS the R & R [ECF No. 15]. Accordingly, IT IS HEREBY ORDERED THAT:
LET JUDGMENT BE ENTERED ACCORDINGLY.
JANIE S. MAYERON, United States Magistrate Judge.
The above matter is before the undersigned United States Magistrate Judge on plaintiff's Motion for Summary Judgment [Docket No. 9] and defendant's Motion for Summary Judgment [Docket No. 12]. This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation by the District Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c).
For the reasons discussed below, it is recommended that plaintiff's Motion for Summary Judgment be
On May 23, 2007, plaintiff Chong Vang ("Vang") filed applications for disability insurance benefits and supplemental security income, alleging disability since November 18, 2005, due to her shoulder, arm, neck, back and depression. Tr. 107-18, 137. Vang's applications were denied initially and upon reconsideration. Tr. 53-62, 68-73. At Vang's request, an administrative hearing was held on January 15, 2010, before Administrative Law Judge Roger Thomas. Tr. 10-19, 20. Vang was represented by an attorney during the hearing. Tr. 20. Testimony was taken at the hearing from Vang, a medical expert Dr. Andrew Steiner, M.D. ("ME") and vocational expert L. David Russell ("VE"). Tr. 20. The ALJ issued a decision on August 24, 2010, finding that Vang was not disabled
Vang has sought review of the ALJ's decision by filing a Complaint with this Court pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3). [Docket No. 1]. The parties now appear before the Court on plaintiff's Motion for Summary Judgment [Docket No. 9] and defendant's Motion for Summary Judgment [Docket No. 12].
Congress has prescribed the standards by which Social Security disability benefits may be awarded. "The Social Security program provides benefits to people who are aged, blind, or who suffer from a physical or mental disability." Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir.1992); 42 U.S.C. § 1382(a). The Social Security Administration shall find a person disabled if the claimant "is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." 42 U.S.C. § 1382c(a)(3)(A). The claimant's impairments must be "of such severity that [the claimant] is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 1382c(a)(3)(B). The impairment must last for a continuous period of at least twelve months or be expected to result in death. 42 U.S.C. § 1382c(a)(3)(A); see also 20 C.F.R. §§ 404.1509, 416.909.
If a claimant's initial application for benefits is denied, he or she may request reconsideration of the decision. 20 C.F.R. §§ 404.907-09, 416.1407-09. A claimant who is dissatisfied with the reconsidered decision may obtain administrative review by an ALJ. 42 U.S.C. §§ 405(b)(1), 1383(c)(1); 20 C.F.R. §§ 404.929, 416.1429. To determine the existence and extent of a claimant's disability, the ALJ must follow a five-step sequential analysis, requiring the ALJ to make a series of factual findings regarding the claimant's work history, impairment, residual functional capacity, past work, age, education and work experience. See 20 C.F.R. §§ 404.1520, 416.920; see also Locher, 968 F.2d at 727. The Eighth Circuit described this five-step process as follows:
Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir.2003).
If the claimant is dissatisfied with the ALJ's decision, he or she may request
Judicial review of the administrative decision generally proceeds by considering the decision of the ALJ at each of the five steps. The Court is required to review the administrative record as a whole and to consider:
Cruse v. Bowen, 867 F.2d 1183, 1185 (8th Cir.1989) (citing Brand v. Secretary of HEW, 623 F.2d 523, 527 (8th Cir.1980)).
The review by this Court is limited to a determination of whether the decision of the ALJ is supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Bradley v. Astrue, 528 F.3d 1113, 1115 (8th Cir.2008); Johnston v. Apfel, 210 F.3d 870, 874 (8th Cir.2000); Clark v. Chater, 75 F.3d 414, 416 (8th Cir.1996). "We may reverse and remand findings of the Commissioner only when such findings are not supported by substantial evidence on the record as a whole." Buckner v. Apfel, 213 F.3d 1006, 1012 (8th Cir.2000) (citation omitted).
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); see also Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir.1994). "Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion." Buckner, 213 F.3d at 1012 (quoting Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir.2000)); see also Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir.2009) (citing Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir.2006)) (same); Cox v. Apfel, 160 F.3d 1203, 1206-07 (8th Cir.1998) (same).
In reviewing the record for substantial evidence, the Court may not substitute its own judgment or findings of fact for that of the ALJ. Hilkemeyer v. Barnhart, 380 F.3d 441, 445 (8th Cir.2004); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir.1993). The possibility that the Court could draw two inconsistent conclusions from the same record does not prevent a particular finding from being supported by substantial evidence. Culbertson, 30 F.3d at 939. The Court should not reverse the Commissioner's finding merely because evidence may exist to support the opposite conclusion. Buckner, 213 F.3d at 1011; Mitchell v. Shalala, 25 F.3d 712, 714 (8th Cir.1994); see also Woolf, 3 F.3d at 1213 (the ALJ's determination must be affirmed, even if substantial evidence would support the opposite finding). Instead, the Court must consider "the weight of the
The claimant bears the burden of proving his or her entitlement to disability insurance benefits under the Social Security Act. See 20 C.F.R. §§ 404.1512(a), 416.912(a); Thomas v. Sullivan, 928 F.2d 255, 260 (8th Cir.1991). Once the claimant has demonstrated he or she cannot perform prior work due to a disability, the burden of proof then shifts to the Commissioner to show that the claimant can engage in some other substantial, gainful activity. See Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir.2005); Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir.2004); Martonik v. Heckler, 773 F.2d 236, 239 (8th Cir.1985).
The ALJ concluded that Vang was not entitled to disability insurance benefits under sections 216(i) and 223(d) of the Social Security Act, or supplemental security income under section 1614(a)(3)(A) of the Social Security Act. Tr. 19. The ALJ made the following findings:
Tr. 12-18.
The ALJ made the following determinations under the five-step procedure. At
At the third step of the evaluation, the ALJ determined that Vang did not have impairment or combination of impairments that met or equaled the relevant criteria of any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 13. Specifically, the ALJ found that neither Vang's physical nor mental impairments met or equaled any of the listings. Id. The ALJ relied and placed significant weight on the opinion of clinical psychologist Dr. Karen Butler, Ph.D., to make this finding as to Vang's mental impairments. Id.
In determining that Vang's mental impairment did not meet or medically equal the criteria of Listing 12.04 for affective disorders, pursuant to "paragraph B" of Listing 12.04, the ALJ considered whether Vang's impairments resulted in at least two of the following: marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence or pace; or repeated episodes of decompensation, each of extended duration. Tr. 13-14.
With regard to activities of daily living, the ALJ relied on Dr. Butler's conclusion that Vang had no more than a moderate limitation in this area. Tr. 14. The ALJ also relied on Vang's statements made during an consulting examination by psychologist Dr. Mark Schuler, Ph.D. in March 2007, that her day began at 6 a.m. when she helped her children prepare for school, she cooked for the family, and she swept, vacuumed, went grocery shopping two to three times a week, drove and visited with family and friends. Id. (citing Tr. 283).
Based on the opinion of Dr. Butler, the ALJ found moderate difficulties in social functioning. Tr. 14. The ALJ also premised this determination on the fact that the record showed that Vang got along well with her children, examining psychologist Dr. Robert Barron, Ph.D., found her responses to be logical and goal directed, and she was able to shop on a regular basis, all of which suggested that she was able to go out in the public and tolerate at least superficial interactions with others. Id. (citing Tr. 329).
With respect to her ability to maintain concentration, persistence or pace, again based on Dr. Butler's opinion, the ALJ found that Vang had a moderate limitation in this area. Tr. 14. The ALJ acknowledged that Vang stated to Dr. Schuler that she had memory problems, (Tr. 14 (citing Tr. 287)), but noted that during her mental status examination by Dr. Schuler, Vang displayed no difficulty in performing a simple focused attention tasks. Tr. 14 (citing Tr. 285). As for any evidence of decompensation, stating that the record reflected no extended psychiatric hospitalizations and no evidence that Vang was required to leave a work-like setting due to psychologically-based symptoms or an inability to leave home, the ALJ determined that Vang suffered no episodes of decompensation. Tr. 14. Thus, he concluded that Vang did not satisfy the "B criteria" of Listings 12.04. Id.
The ALJ also found, based on the opinion of Dr. Butler, no evidence of the "C criteria"
Additionally, the ALJ placed significant weight on examining psychologist Dr. Barron's opinion that Vang was capable of communicating, comprehending, and retaining simple directions in an entry-level employment situation. As for Dr. Barron's statement that "it would appear doubtful that she would be capable of withstanding work-related stresses, performing routine and repetitive activities with reasonable persistence and pace, or meeting production requirements in an entry-level employment situation," the ALJ did not interpret this statement to mean that Vang was unable to tolerate stress, meet production requirements or perform with reasonable pace. Tr. 16 (citing Tr. 331). The ALJ noted that Dr. Barron's opinion was based in part on the report of Dr. Schuler, a report which Dr. Barron had discredited. Tr. 16.
The ALJ found that the record did not support the March 2007 opinion by Dr. Schuler that Vang would experience problems maintaining a competitive rate of work while performing tasks that require any type of visual scanning or processing, and that her depression would interfere with a consistent rate of work performance. Id. In making this finding, the ALJ stated that Dr. Barron had found that Dr. Schuler's report was probably an underestimate of her cognitive abilities. Id. (citing Tr. 326-32). Further, the ALJ relied on Vang's activity level and her ability to be responsible for young children to show that she was functioning at a higher level than that described by Dr. Schuler. Id.
The ALJ gave limited weight to the opinions set forth in a mental impairment questionnaire prepared by Vang's treating psychotherapists, Dr. Jonathan Hoistad, Ph.D., and Xullvong Moua, M.A., on December
As for her subjective complaints, the ALJ noted that Vang's medications were consistent for her established impairments and the record did not suggest that she failed to receive significant relief of symptoms with the use of medication. Tr. 17. The ALJ also noted that Vang was inconsistent her use of medication in that she alternated the medication that she was supposed to be taking on a daily basis, (id. (citing Tr. 329-30)), and she understood that some of her problems could be reduced by taking her medication and she did have some control over her problems. Id. (citing Tr. 442).
The ALJ found that Vang made contradictory statements as to what she could do on a daily basis, observing that in March 2007, she told Dr. Schuler that she prepared all of the family's meals, could perform household chores and visited friends weekly, but in August 2007, she stated to Dr. Barron that her husband prepared the meals, she did no household chores, and had no friends. Tr. 17 (citing 283, 328, 330).
In further development of the RFC, the ALJ considered Vang's work history which showed that she stopped working in November 2005, the date that coincides with the date she alleges she first became disabled. Tr. 17. However, she told Dr. Schuler that she stopped working, not because of her disability, but because the third shift that she worked was discontinued and she did not return to work because she could not find childcare. Id. (citing Tr. 281). The ALJ also noted that Vang is a fulltime parent and as of March 2007, two of her children were not yet school aged and she babysat them on a daily basis. Tr. 18.
The ALJ considered but did not place much weight on the written statements from Vang's daughter and husband, given their relationship to Vang and their incentive to support her. Id. According the ALJ, Vang's husband basically described Vang as an invalid, yet for an extended period of time, she was solely responsible for all of the activities he claimed he performed alone. Id. In addition, the ALJ observed that the husband and daughter's statements about who did the cooking contradicted each other. Id.
Based on the RFC assigned to Vang and the VE's testimony, the ALJ concluded
Vang was 42-years-old when she filed her application for benefits in May 2007. She had nine children, five of which still lived at home (ranging from three to seventeen years old) at the time of the hearing before the ALJ. Tr. 27.
On June 13, 2007, Vang and her husband both filled out reports on Vang's abilities to function. Tr. 149-156, 160-67. Vang's husband indicated that he took care of Vang and the children, cooked, cleaned and did the shopping. Tr. 150. While Vang used to be able to do this work, she could no longer do so. Id. The children assisted Vang by giving her clothes to wear, giving her a bath, and helping her care for her nails. Id. Vang needed to be reminded to groom herself, to take her medications, and to go to medical appointments. Tr. 151, 153. Vang could not cook because she could not concentrate. Id. Vang travelled by riding in a car and using a medical rider, and she was afraid to go anywhere by herself because she felt she might get lost. Tr. 152. Vang shopped once a month for 30-40 minutes with her husband. Id. Vang's husband stated that he paid the bills. Id. Vang could no longer attend family ceremonies; she was forgetful and could not finish tasks; she could only pay attention for less than 5 minutes at a time; she could not follow spoken instructions very well; she handled stress by being alone; and her condition worsened with changes in her routine. Tr. 154-55.
In her report, Vang indicated that she spent her day by waking up at 7:00 a.m.; she went to the couch to ruminate about things; she ate breakfast at 9:00 a.m., which was cooked by her husband; in the summer she went outside for 5-10 minutes; she ate dinner at 7:00 p.m.; and went to bed at 10:00 p.m. but did not fall asleep until 2:00 or 3:00 a.m. Tr. 160. Vang stated that her husband took care of her and the children. Tr. 161. Her children assisted her by giving her clothes to wear, giving her a bath, and helping her care for her nails. Id. Her family reminded her to take care of her personal needs and grooming; they took care of cooking since she forgets easily; she went to medical appointments using a medical rider; she went shopping once a month with her husband for clothing; and her husband took care of the bills. Tr. 162-63. Vang noted that she spent time with her family, went to the Hmong New Year celebration for 1 hour, went to her doctor's appointment 2-3 times per week, no longer visited her relatives, and complained of a poor memory and concentration. Tr. 164-65. Vang claimed that she could only concentrate for about 5 minutes at a time, dealt with stress by being calm and alone, and changes in her routine caused her greater depression. Tr. 165-66.
Vang's daughter submitted a functional report dated February 15, 2008. Tr. 182. The report contains virtually the same statements of Vang's functional abilities as that set forth in her father and mother's reports, except that the daughter represented that she, as opposed to her farther, did the cooking and cleaning, took care of her younger siblings, took her mother shopping, and paid the bills. Tr. 182-89.
In March 2006, Vang presented to licensed psychologist, Dr. Jonathan Hoistad, complaining of being worried about family finances, shoulder problems, not being able to sleep at night, poor appetite and depression for the last five years. Tr. 434. Vang's husband had moved out in 2003. Id. Vang was physically abused by her husband. Tr. 435. She was not able to engage in any social activities because she did not have the time. Tr. 436.
Dr. Hoistad's impression of Vang was that she was very depressed over her finances and taking care of her children. Id. Dr. Hoistad felt that Vang's prognosis was fair. Tr. 436. Regarding her mental status, he observed that she appeared casual, her mood was depressed, her affect was appropriate and her thought process was normal. Id. Dr. Hoistad diagnosed Vang with major depressive disorder, recurrent, moderate, and assigned her with a GAF of 45.
From March 14, 2006 through March 2008, Vang met with Dr. Hoistad and therapist Xulivong Moua, M.A., who worked with Dr. Hoistad, for psychotherapy sessions. The results of each session were set forth in progress notes signed both by Dr. Hoistad and Moua.
From March 2006 through May 2007, issues and complaints identified by Vang included her husband rejoining the family in February 2006, but not working; struggling with finances and public assistance; arm pain; the health and well-being of her children; her pregnancy and upcoming birth of her child; her husband not participating with the family; being denied social security supplemental income; having to take care of the family and feeling like she was "wearing the pants in the home;" not being able to work because of the pain in her right arm; not being able to divorce her husband due to cultural issues; and being forgetful. Tr. 387-433. The stated objectives of these sessions during this time period were mental health support and to assist her to obtain financial support. See, e.g., Tr. 418, 420, 422, 427, 428, 430, 431. Dr. Hoistad opined during this time period that Vang's level of functioning was poor and she showed no progress. Id. Vang was diagnosed with major depressive disorder, recurrent, moderate; and a pain disorder associated with both psychological factors and a medical condition. Tr. 387-433.
Starting in June 27, 2007, Dr. Hoistad reported that Vang was showing some improvement. Tr. 399. Vang told Dr. Hoistad that she wanted to go back to her work, but that her back pain was keeping her from doing so. Id. In August 2007, Dr. Hoistad noted that Vang's level of functioning improved to fair and some improvement was seen with her depression. Tr. 395. On September 6, 2007, Vang reported to Dr. Hoistad that her depression was getting worse, despite Dr. Hoistad's belief that Vang showed some improvement. Tr. 394. On December 5, 2007, Vang's level of functioning was rated by Dr. Hoistad as fair, with some improvement with her depression. Tr. 392. Vang was stressed out with public assistance rules and regulations, as they wanted her to find work or go to school, and Vang felt that was very difficult for her to do given that she had two small children and her husband had run off. Id. On January 15, 2008, Vang reported to Dr. Hoistad that her husband had run off with another woman and that he had not come back for a few weeks. Tr. 389. Dr. Hoistad noted that Vang's level of functioning was poor, with some improvement. Id. On January 29, 2008, Vang reported to Dr. Hoistad that she was having a flashback from the burglary of her house. Tr. 388. Vang indicated that she sometimes forgot to cook for her children. Id. Her husband had not been at home for months. Id. Dr. Hoistad opined that Vang's level of functioning was poor, with some improvement. Id.
In February 2008, Vang reported to Dr. Hoistad that she could not sleep and she had communication problems with her children and husband, resulting in a family fight, and she had health and financial problems. Tr. 387. Dr. Hoistad reported that Vang's level of functioning was fair, with some improvement.
From February 2008 to November 2008, Vang reported issues and complaints to Dr. Hoistad, including problems communicating with her children who were being disobedient and having behavioral problems, problems with sleeping and headaches, wanting to help financially by obtaining SSI benefits, her husband's affair, financial stresses, and chronic pain. Tr. 487-509. Dr. Hoistad indicated that Vang's level of functioning during this period was primarily fair and showing some improvement. Id. Vang's diagnosis was major depressive disorder, moderate. Id.
From May 19, 2009 through November 24, 2009, Vang reported to Dr. Hoistad that she had no child support from her husband and financial stress; her children were having problems at school and getting into fights and arguments; she was trying to find a new house to live in; her daughter was having legal problems related to destruction of property; her daughter had run away from home; and she was suffering from mood swings and having feelings of hopelessness and helplessness. Tr. 576-80, 625-37. Dr. Hoistad opined that Vang's level of functioning during this time was poor with no progress. Id. From October 2009 through November 2009, Dr. Hoistad diagnosed Vang with a major depressive disorder, moderate, severe depression without psychotic features, (Tr. 625-27), anxiety, and a learning disability. See, e.g., Tr. 625, 628, 633.
Throughout his work with Vang, Dr. Hoistad indicated under the Mental Status section that her mood was depressed; her affect was flat or appropriate; her attention/concentration was limited or poor; her thought processes were fair, limited or poor; and her associations and memory was fair, limited, poor or had no comment at all. Id. Tr. 387-433, 487-509. For symptoms, Dr. Hoistad checked one or more of the following: sad/depressed mood, sleep disturbance, loss of interest/enjoyment, hopeless/helplessness/worthless, anxiety/worry, mood swings, memory issues, irritability, excessive worry, fatigue, nightmares, flashbacks, inability to focus and concentration/focus. Id.
On December 9, 2009, Dr. Hoistad and Moua filled out a mental impairment questionnaire for Vang, indicating they had seen her bi-monthly for a three-year period. Tr. 639-44. Their DSM-IV diagnosis for Vang was major depressive disorder, moderate, and they stated that Vang's highest GAF score for the year was 46. Tr. 639. They identified the following symptoms for Vang: poor memory; sleep disturbance; mood disturbance; emotional lability; loss of interest; difficulty thinking or concentration; apprehensive expectation; time or place disorientation; flat affect; decreased energy; generalized persistent anxiety and hostility; and irritability. Id. They also noted that Vang had been depressed for over ten years and could sometimes get suicidal. Id. They opined that her fatigue moderately impaired her ability to work and she could handle no stress in an employment setting. Tr. 640.
Dr. Hoistad and Moua stated that the following clinical findings demonstrated the severity of Vang's mental impairments and symptoms: poor ability to focus; poor short-term memory; irritable mood; sleep disturbances; feelings of hopelessness. Id. They indicated Vang's response to treatment was fair, her prognosis was guarded, and her condition was expected to last at least 12 months. Id.
With regard to Vang's mental abilities and aptitude to do good work, Dr. Hoistad and Moua opined that Vang had a good ability to work in coordination with others
In the area of mental abilities and aptitudes needed to do particular types of jobs, Dr. Hoistad and Moua opined that Vang had a good ability to interact appropriately with the general public, maintain socially appropriate behavior, and adhere to basic standards of neatness; and a fair ability to travel in unfamiliar places and use public transportation. Id. Vang was limited in the areas of travel and use of public transportation due to her poor English and cultural issues. Id.
Dr. Hoistad and Moua checked that Vang had a marked limitation
In June 2006, Vang saw psychiatrist Dr. Roger A. Johnson with complaints of depression for three years, insomnia, loss of interest, low appetite, lowered concentration and memory, feelings of helpless, and thoughts of death with no suicidal ideation. Tr. 310. She was given a prescription for the anti-depressant fluoxetine. Id. On June 19, 2006, Vang reported that she was doing a little better, but had complaints of insomnia. Tr. 444. Dr. Johnson diagnosed Vang with major depressive disorder in partial remission. Id. Dr. Johnson gave Vang Depakote ER. Id. On July 17, 2006, Vang reported that the Depakote did not help her, so it was discontinued and Vang was placed on Effexor and Prozac. Id. Vang reported no improvement during
On May 21, 2007, Vang saw Dr. Johnson regarding her partially treated depression. Tr. 304. She was given Effexor XR. Id. On June 19, 2007, Dr. Johnson diagnosed Vang with major depressive order, recurrent, in partial remission. Tr. 444.
On August 16, 2007, Dr. Johnson reported that her medications were effective, but that she was not sleeping at night and was sleepy during the day. Tr. 441. Dr. Johnson recommended that Vang get some exercise and "do something." Id. Vang was kept on the same medications. Id. She was diagnosed with major depressive order, recurrent, in partial remission. Id. On December 11, 2007, Dr. Johnson noted that Vang was off her medications and opined that she was suffering a major depressive disorder, recurrent, moderate. Id. Dr. Johnson put Vang on Cymbalta. Id. On January 10, 2008, Dr. Johnson found that Vang had improved some, but that she still met the DSM-IV for a major depressive disorder, recurrent, mild, and added Lexapro to treat her depression. Tr. 440.
On February 8, 2008, Dr. Johnson noted that Vang had gotten better with the Lexapro, but then her husband left her alone with the kids and she was suffering from nightmares and anxiety. Id. Dr. Johnson prescribed Vang with Doxepin. Id. On March 11, 2008, Vang reported worrying excessively of being denied social security benefits. Tr. 573. Dr. Johnson placed Vang on Trazodone to help her sleep. Id. On April 10, 2008, Dr. Johnson reported that Vang had improved. Id. Vang told Dr. Johnson that legal aid was helping her with a social security appeal and the Trazodone had improved her sleep. Id. She still reported nightmares and some depressive symptoms. Id. Dr. Johnson had Vang try Clomipramine for her depression. Id. She was diagnosed with major depressive order, recurrent, in partial remission. Id.
On May 12, 2008, Dr. Johnson noted that Vang had worsened, she met the DSM-IV criteria for a major depressive disorder, recurrent, mild, and that medications were not probably going to help her with her condition. Tr. 572. He also noted that Vang could not work given her current mental condition and that she should appeal the social security rejection of benefits. Id. Dr. Johnson added Seroquel in order to treat Vang's depression. Id. On June 9, 2008, Vang was a little improved and was able to sleep seven hours per night. Id. Dr. Johnson also found Vang to be generally inept, probably due to a dependent personality disorder. Id. On July 8, 2008, Dr. Johnson reported that Vang was still suffering from a major depressive order, moderate, and it appeared that her medication regimen was not helping bring her back to normal. Tr. 571. Dr. Johnson decided to have Vang try Strattera for her depression. Id.
On August 8, 2008 Dr. Johnson noted that Vang was still suffering from depression,
From February 10, 2009 through April 10, 2009, Vang reported to Dr. Johnson that she had stress in her life, which she described as depression, she was not getting any better, and although all of the medications had been tried without effect, Vang did not want to go off of them. Tr. 568. Dr. Johnson did not believe that drugs were the answer to treating her depression. Id. Vang was diagnosed with major depressive order, recurrent, unspecified during this time. Id.
On June 15, 2009, Thersleff conducted a mental health intake assessment of Vang. Tr. 655-59. Vang was dressed casually and her speech was normal. Tr. 655. Her thoughts were logical, but she cried easily. Id. Vang reported her mood as being depressed and that her depression started in 2003, after her husband had assaulted her and dislocated her shoulder. Id. Vang stated that she had problems sleeping and only slept 2-3 hours per night. Id. Her appetite varied. Id. Vang had a decreased interest in pleasure and decreased energy. Tr. 656. Vang denied any psychomotor issues. Id. Vang felt hopeless, helpless, worthless and guilty. Id. Vang reported that she had a short temper and that she angered easily. Id. She complained that she never felt happy and believed that she would only be happy when she died. Id. Vang had suicidal ideations, but no history of suicidal attempts. Tr. 656, 658. Vang had no delusional behaviors, but she did have anxiety and panic attacks twice a week for 30 minutes, which she said were caused by thinking too much. Tr. 656-57. Vang had reoccurring negative thoughts, no obsessive or compulsive conduct, and reported memory problems. Tr. 657. Vang was separated from her husband and she lived with five of her children, the youngest of which was two years old. Tr. 658.
Thersleff believed that Vang was a medium risk and diagnosed her with major depressive affective disorder and severe psychosocial stressors. Tr. 659.
Vang continued to see Thersleff through November 23, 2009. Tr. 646-54. Thersleff's diagnosis for Vang during this period was major depressive disorder, recurrent, severe with psychotic features and chronic pain. Id. Thersleff noted that Vang's behavior during these consultations was cooperative; her speech was logical, her appearance was mostly tired; she was
On December 21, 2009, Thersleff filled out a mental impairment questionnaire for Vang. Tr. 661-66. Thersleff's DSM-IV diagnosis for Vang was major depressive disorder, recurrent, severe with psychotic features and with severe psychosocial stressors, chronic pain, and a GAF of 49. Tr. 661. In support, Thersleff listed the following symptoms: poor memory; sleep disturbance; mood disturbance; emotional lability; recurrent panic attacks; feelings of guilt and worthlessness; loss of interest; difficulty thinking or concentrating; motor tension; apprehensive expectation; suicidal ideation; decreased energy; intrusive recollections of a traumatic experience; persistent irrational fears; generalized persistent anxiety; somatization; and autonomic hyperactivity. Tr. 661. Thersleff also noted that Vang had witnessed her father's death when she was six years old and had been assaulted and abandoned by her husband in 2003. Id.
Thersleff opined that Vang's fatigue moderately impaired her ability to work and she could only handle a low amount of stress in an employment setting. Tr. 662. This opinion was based on the fact that when Vang becomes anxious, she angers easily, panics and cannot think clearly, and Vang's history of intrusive and traumatic memories. Id. Thersleff also noted that when Vang first came to see her, she was on a number of medications, which she had been slowly tapering down. Id.
Thersleff's prognosis was Vang's condition was chronic and was likely to last at least 12 months. Id. Thersleff believed that Vang's condition would cause her to miss work more than three times a month. Tr. 663.
With regard to her mental abilities and aptitude to do unskilled work, Thersleff checked that Vang had a fair ability to remember and understand simple instructions, get along with co-workers, respond adequately to a change in routine, be aware of normal hazards and take appropriate precautions; a fair to poor ability
In the area of mental abilities and aptitudes needed to do particular types of jobs, Thersleff checked that Vang had a
Thersleff checked that Vang had marked limitations as to restrictions of daily living, maintaining social functioning, and maintaining concentration, persistence or pace. Tr. 665. Thersleff noted that her exam of Vang indicated that her depression had worsened in 2003 after her husband assaulted and left her. Tr. 666. Since then, Vang had experienced periods of exacerbation and remission of her depressive symptoms. Id. Thersleff also indicated that Vang had been compliant with her visits and medications. Id. Thersleff believed that Vang could manage benefits in her own best interest. Id.
On March 15, 2007, Vang was referred to Dr. Schuler by a Social Security advocate with the Hmong American Partnership. Tr. 281. Vang complained to Dr. Schuler that she had a lot of stress and could not do anything. Id. Vang indicated that she was depressed, as her husband had remarried and she was unable to take care of her family. Id. Vang claimed that she had been suffering from depression since 2000 after she and her husband separated, she had never been treated for depression before her husband left, and was taking medication for her condition. Tr. 281-82, 287. Her husband returned to the family in 2005 but she continued to be depressed because she was never sure as to whether he would stay or leave. Tr. 282, 287
Vang received no formal education in Laos or Thailand. Tr. 281. She told Dr. Schuler that she had worked on an assembly line from July 1997 to November 2005. Id. She had worked the third shift, but when the shift was discontinued, she did not have anyone to provide childcare services and had not worked since then. Id. Vang considered her shoulder pain and headaches to be her biggest barriers to working. Id.
With regard to activities and skills of daily living, Vang told Dr. Schuler that her day begins at 6:00 a.m. when she got up to help her children prepare for school. Tr. 283. If she needed help, she would get assistance from the older children. Id. Vang bathed every day. Id. Vang indicated that she did the cooking for the family, was able to sweep and vacuum, made her bed two-three times a day (usually with help from her children), went grocery shopping three times a week, paid bills with the help of her husband or son, could buy a money order herself to pay the bills if no one was available, and knew how to drive a car. Id. Vang went to bed between 9:00 and 10:00 p.m., but did not fall asleep until midnight or 1:00 a.m. Id.
Regarding her interests, Vang indicated that she was usually at home babysitting her two youngest children. Id. She tried to keep her house clean while she was babysitting, watched some television, took walks outside when the weather was nice, visited her family twice a week, visited her friends once a week, and attended the Hmong New Year celebrations and Hmong funerals. Id.
With regard to her ability to relate, Vang told Dr. Schuler that she did not have any ongoing arguments with anyone. Id. Vang denied any current suicidal ideation, but stated that she had thoughts
Dr. Schuler observed that Vang's affect was mildly liable and her mood was somewhat depressed. Tr. 284.
Dr. Schuler conducted performance testing on Vang designed to measure her problem-solving, attention abilities, processing speed and motor efficiency, semantic fluency, and learning and memory.
On attention abilities, Dr. Schuler stated that Vang displayed no difficulty in performing a simple focused attention task, indicating that she repeated the names of three common objects twice consecutively after a single presentation. Tr. 285. However, on a spatial span subtest of WMS-III,
On processing speed and motor efficiency, Vang was administered the visual scanning task that is part of the Cross Cultural Cognitive Examination. Tr. 286. Vang's performance was very slow, falling below the criterion set by the exam. Id. However, on another test designed to measure fine motor dexterity and motor speed, her scores fell between the 8th and 55th percentile when compared to individuals raised in this country. Id. Taking into consideration both tests, Dr. Schuler stated that while Vang's general motor speed appears unimpaired, she does have reduced
On semantic fluency, which is designed to test a person's ability to rapidly produce as many words as possible in a designated category, Vang performed at or below the 1st percentile. Id. Dr. Schuler felt that her slow response was associated with the decreased processing efficiency she showed on the visual scanning task. Id.
On learning and memory, Dr. Schuler indicated that Vang appeared to be able to acquire new information, but her performance reflected variability in learning style and an inefficient pattern of learning this information. Id.
Dr. Schuler opined that Vang's performance on these various tests of cognitive functioning reflected a decline in functioning that was probably associated with her depression. Tr. 288. In support, Dr. Schuler noted that Vang had a significant history of employment before her depression, and that Vang marked her decline in cognitive functioning as beginning with her depression which she associated with her husband's departure. Id. Specifically, Dr. Schuler stated that Vang displayed an impaired processing efficiency during testing that resulted in a slower rate of performance on tasks requiring cognitive processing, and that he believed that her depression, demoralization, and sense of helplessness interfered with her functioning. Id. Nevertheless, Dr. Schuler believed that Vang is able to learn new information. Id.
The diagnostic impression for Vang was major depressive disorder, recurrent, moderate; pain disorder associated with psychological factors; and pain disorder associated with psychological factors and medical conditions. Tr. 288-89. Dr. Schuler assigned Vang a GAF score of 45. Tr. 289.
Under the section of his report entitled "Considerations," Dr. Schuler recommended that Vang continue with her medications and start support counseling. Tr. 289. In light of her display of decreased processing efficiency during the evaluation process, Dr. Schuler stated:
Id. Dr. Schuler also noted that should Vang reapply for Social Security benefits, he believed that "the basis for this application should be related to her decreased processing efficiency and decreased rate of work performance that is associated with her depression." Tr. 289-90.
Finally, Dr. Schuler indicated that should Vang receive Social Security benefits, he believed that she would be able to reliably manage these funds. Tr. 290. In support, he stated that she had reported that she is able to buy groceries, she manages her household, and she pays monthly bills when necessary. Id.
On August 8, 2007, Vang was seen for a psychological evaluation by Dr. Barron, at the request of the state Disability Determination Services. Tr. 326-332. At this time, Vang indicated that she resided with her unemployed husband and six children ranging in age from one to 17 years of age, with two of the children being preschool age. Tr. 330.
When asked about the nature of her disability, Vang said she had chronic pain
Vang told Dr. Barron that she had worked at her previous place of employment for 4 years until November 2005, when the third shift was terminated and she could not work any other shift due to childcare issues. Tr. 330. Prior to that, Vang worked for 8 years for two other companies doing assembly work. Id. Vang had not sought work since December 2005. Id. When asked how she could work from 2003 to 2005 (the time period she reported severe pain to her right arm), Vang stated that her employer was aware of her problem and reassigned her to light duties, where she could use her left arm. Id.
Vang normally went to bed at midnight and got up at 4:00 a.m. and napped an hour. Id. She bathed four days a week, but needed help combing her hair and dressing due to right arm pain. Id. Vang stated that her husband did all of the cooking. Id. Vang denied doing household chores (washing dishes, sweeping, mopping, vacuuming, laundry), except for dusting three times a month. Id. She drove to doctor's appointments twice a week and sometimes went the grocery store to buy water for her children. Id. Vang went to the park, soccer tournaments and the Hmong New Year's Celebration on occasion. Id.
The advocate accompanying Vang to the evaluation was also interviewed by Dr. Barron. Tr. 331. The advocate stated that after Vang's husband left her she became extremely depressed and continued to have depression due to ongoing marital problems. Id. The advocate admitted that the primary goal of his position was to assist Vang in obtaining social security disability benefits and that he had referred Vang to Dr. Schuler for a psychological evaluation. Id.
Dr. Barron reviewed the psychological evaluation by Dr. Schuler and noted that Dr. Schuler felt that the score obtained by Vang on the TONI-3 was "probably an underestimate of her cognitive capabilities." Tr. 328.
Dr. Barron's diagnosis for Vang included major depressive disorder, single episode; and pain disorder associated with psychological factors and a general medical condition. Tr. 331.
In spite of Vang's questionably valid results on the TONI-3, based on her past work history and her ability to understand questions during the evaluation, Dr. Barron opined that Vang was capable of communicating, comprehending and retaining simple directions in an entry-level employment situation. Id. Dr. Barron also opined that based on Vang's statements as well as Dr. Schuler's previous evaluation, her reports of current social and emotional functioning, subjective physical problems and reported significant restrictions on her daily activities of living, it appeared doubtful
On August, 28, 2007, licensed psychologist Dr. Alsdurf, a state agency consultant, completed a Psychiatric Review Technique Form ("PRTF") and Mental Residual Functional Capacity Assessment Form ("MRFCA") regarding Vang for the SSA. Tr. 339-55. Under Section 12.04, Dr. Alsdurf concluded that Vang suffered from a depressive syndrome characterized by decreased energy, feelings of guilt or worthlessness and difficulty concentrating or thinking. Tr. 342. In addition, under Section 12.07 (Somatoform Disorders) Dr. Alsdurf concluded that Vang was suffering from a pain disorder. Tr. 345.
Under the B criteria of the Listings, Dr. Alsdurf indicated that Vang had mild restrictions in activities of daily living and in maintaining social functioning; moderate difficulties in maintaining concentration, persistence or pace; and no episodes of decompensation. Tr. 349. Dr. Alsdurf did not find that Vang met any of the C criteria. Tr. 350.
In the note section of the PRTF, Dr. Alsdurf summarized his examination of the record and concluded that Vang was able to provide a reasonable and lengthy description of various elements of her life. Tr. 351. Vang had no psychotic mentation;
On the MRFCA, Dr. Alsdurf reached the following conclusions:
Tr. 355. On March 8, 2008 licensed physiologist Dr. R. Owen Nelsen, Ph.D. affirmed the assessment by Dr. Alsdurf. Tr. 469-70.
At the request for the ALJ, on September 5, 2009, clinical psychologist Dr. Karen Butler answered interrogatories based on her review of the evidenced provided.
Under the "B" criteria, Dr. Butler assessed Vang's level of function. Tr. 617. Dr. Butler concluded that Vang had a moderate impairment of restrictions of activities of daily living based on reports in the record that sometimes Vang was only able to shop and count change, but on other occasions, she was able to get her children ready for school, cook for her family, sweep, and vacuum.
Dr. Butler opined that Vang had a moderate impairment in maintaining social functioning. Tr. 617. Dr. Butler made this finding based on Vang's reports of her family visiting her once or twice a week, visiting her friends once a week, attending a Hmong New Year's celebration, and attending Hmong funerals. Id. (citing Tr. 146-67, 280-90).
Dr. Butler assessed Vang with a moderate impairment to her ability to maintain concentration, persistence and pace. Tr. 617 (citing Tr. 269-605).
Dr. Butler determined that the evidence in the record did not establish the "C" criteria. Tr. 618. She made this finding on the basis that Vang's depression waxed and waned between 2006-2008 largely around her marital conflict and the acting out of her children, and because Vang's depression was noted as partially remitted, mild or moderate.
Dr. Butler placed the following work restrictions on Vang: she should be limited to simple and unskilled work that is visually demonstrated; she should have no rapid pace in her work; she should not have any rapid production goals; she should have no public contact; and she should have only brief and superficial contact with co-workers and supervisors. Id. Citing to the records of Drs. Hoistad and Johnson, Dr. Butler maintained that the earliest date that these limitations would have applied to Vang was March 2006. Tr. 619 (citing Tr. 384-445), 621.
Dr. Butler also filled out a Medical Source Statement of Ability to do Work-Related Activities (Mental) form relating to Vang. Tr. 620-22. Dr. Butler opined that Vang had a moderate limitation as it related to being able to understand and remember simple instructions, carry out simple instructions and to make judgments on simple work-related decisions; and a marked limitation as it related to being able to carry out complex instructions, understand and remember complex instructions, and to make judgments on complex work-related decisions. Tr. 620. Dr. Butler based these findings on Vang's history of factory work, reported activities of daily living, and her ability to handle finances when no help was available. Id.
As to her ability to interact with others, Dr. Butler indicated that Vang had a moderate limitation in interacting appropriately with supervisors and co-workers; and a marked limitation in interacting appropriately with the public, and responding to usual work situations and to changes in a routine work setting. Tr. 621. Dr. Butler based these findings on the fact that Vang did not speak English, and she had difficulty responding to changes in her daily routine brought on by her children's misbehavior and legal involvements. Id.
Dr. Butler indicated that Vang could manage benefits in her best interest. Tr. 621.
Vang appeared at a hearing before the ALJ on January 15, 2010. Tr. 20-46. Vang testified that she had separated from her husband in 2007. Tr. 27. She had nine children, five of whom still lived with her. Id. The children living at home ranged from age three to 17 years of age. Id. Vang indicated that she was the primary caretaker of the three-year old and that her older son watched the youngest when she was not there. Id. Vang had a driver's license and access to vehicle. Id. Vang testified that she was able to drive and she drove her daughters to the Laundromat or the grocery store. Tr. 28, 32. Vang lost her job because her shift was laid off. Id. Vang had not been hospitalized for depression or anxiety. Tr. 29-30. Vang was taking medications for depression, but she did not feel that they were helping her. Tr. 30. According to Vang, her children did all of the cooking, housework (making beds, taking out garbage) and grocery shopping. Tr. 31. She did not go to church or listen to music, but watched television for about 10 minutes. Tr. 31-32. She has difficulty falling asleep, indicating that after taking medication, she finally falls asleep around 1:00 or 2:00 a.m., but that only lasts for about four hours. Tr. 32-33. Vang testified that she had not gone to the Hmong Soccer tournament or the Hmong New Year's Celebration that year. Tr. 33. She showers about three times a week with the assistance of her children. Id.
During a typical day, Vang was alone at home with her three-year old at least three days a week, and she fed the child because it was prepared in advance. Tr. 33-34. The child watched television and played with toys. Tr. 34. Vang's other children started coming home from school at 2:20 p.m. Id. Vang said she used to enjoy working but she cannot work anymore. Id.
Following the testimony of the medical expert regarding Vang's physical impairments, (Tr. 36-39), the ALJ gave the VE the following hypothetical:
Tr. 41. The VE testified that such a person could work in Vang's prior position in unskilled assembly as it is normally performed. Id.
The ALJ then modified the hypothetical and asked the VE to assume the same physical limitations given by Dr. Steiner, but with different non-exertional limitations to essentially simple directions and entry-level employment with routine, repetitive tasks. Tr. 41. The VE opined that such a person could perform their past work of unskilled assembly as it is normally performed. Tr. 41-42.
Vang alleged four errors in the Commissioner's decision. First, Vang contended the ALJ erred by giving greater weight to non-examining and non-treating doctors than to four treating and examining sources. See Plaintiff's Memorandum in Support of Summary Judgment [Docket No. 10] ("Pl.'s Mem."), p. 12. In particular, Vang asserted that the ALJ gave improper weight to the opinions of Dr. Butler, Drs. Alsdurf and Nelsen, failed to give due weight to the opinion of Dr. Schuler, misinterpreted and then failed to credit the opinions of Dr. Barron, failed to give controlling weight to the opinion of longtime treating psychologist Dr. Hoistad, and failed to give due weight to the opinions of psychiatric nurse practitioner Thersleff. Id., pp. 14-26.
Second, Vang argued that the ALJ's decision was unsupported because it rested almost entirely on the misreading of the opinion of non-treating, non-examining source, Dr. Butler, who had access to an incomplete record and accordingly, her opinion was not entitled to any deference. Id., pp. 26-35. In support, Vang asserted that the ALJ never addressed Dr. Butler's determinations that Vang had a marked limitation in the area of difficulties in acting appropriately with the public, and she was markedly impaired in responding appropriately to usual work situations and changes in a routine work setting. Id., pp. 26-27 (citing Tr. 621). Relying on SSR 85-15 and SSR 85-16, Vang submitted that the inability to deal with changes in a routine work setting could severely limit the potential occupational base. Id. Consequently, the ALJ's failure to include Vang's inability to respond to usual work situations or changes in a routine work setting in his hypothetical to the VE was legal error. Id., pp. 27-28.
Vang further claimed that Dr. Butler's opinion that Vang did not meet the Listings does not constitute substantial evidence to overcome the opinions of four treating or examining health professionals. In particular, Vang contended that Dr. Butler's opinion was only based on records up through September 5, 2009; Dr. Butler's opinions conflicted with all of the four treating and examining mental health professionals' opinions; and Dr. Butler's findings that Vang had only moderate restrictions in the activities of daily living and only moderate difficulties in maintaining concentration, persistence or pace, were not supported by the medical record. Id., pp. 28-35.
Third, Vang asserted that her impairments met or equaled Listings 12.04, 12.06 and 12.07 based on her GAF scores of 50 or less (save one) and the fact that she met the Part B criteria with marked impairments of activities of daily living and concentration, persistence or pace. Id., p. 36.
Fourth, Vang claimed that she does not have the requisite RFC to work given the opinions of the various medical sources, and her inability to withstand work stresses and inability to meet pace, persistence and production standards in competitive job market. Id., pp. 26-28. In addition, she maintained that the ALJ improperly evaluated her ability to engage in daily activities. Id., pp. 36-38
Defendant countered that the ALJ reasonably considered the available medical source opinions, including her treating providers Dr. Hoistad and Thersleff, consultative examiners, Drs. Schuler and Barron, and the reviewing sources, Drs. Alsdurf, Nelsen and Butler. See Defendant's Memorandum in Support of Motion for Summary Judgment [Docket No. 13], pp. 10-20.
Defendant also maintained that the ALJ reasonably found Vang's claims of debilitating
Finally, defendant argued that the substantial evidence in the record supported the ALJ's finding that Vang's impairments, considered by itself or in combination, did not meet or medically equal a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1 and the RFC assigned to Vang. Id., p. 23.
In reply, Vang again reiterated that the ALJ's reliance on non-examining, no-treating doctors instead of all treating and examining sources who corroborated each was other, was reversible legal error. See Plaintiff's Reply Memorandum in Support of Summary Judgment [Docket No. 14] ("Pl. Reply"), pp. 2-6. Further, Vang claimed that there were no significant inconsistencies in the record regarding her daily activities to warrant a negative credibility finding. Id., pp. 6-7.
The Court addresses each argument within the framework of the five-step disability analysis, beginning at the third step — i.e., whether Vang met or equaled a listed impairment.
The regulations provide that certain impairments are considered "severe enough to prevent an individual from doing any gainful activity, regardless of his or her age, education, or work experience." 20 C.F.R. §§ 404.1525(a), 416.925(a). Such conditions are described in the Listing of Impairments, 20 C.F.R. § 404, Subpart P, Appendix 1. Depression is analyzed under Listing 12.04, affective disorders. See Randolph v. Barnhart, 386 F.3d 835, 840 (8th Cir.2004) (analyzing major depressive disorder under Listing 12.04).
Vang has the burden of proof to establish that her impairment meets or equals a listing. Johnson v. Barnhart, 390 F.3d 1067, 1070 (8th Cir.2004) (citing Sullivan v. Zebley, 493 U.S. 521, 530-31, 110 S.Ct. 885, 107 L.Ed.2d 967 (1990)). A listing is met when an impairment meets all of the listing's specified criteria. Id. (citing Sullivan, 493 U.S. at 530, 110 S.Ct. 885 ("An impairment that manifests only some of these criteria, no matter how severely, does not qualify.") A finding that an impairment or combination of impairments does not meet or equal a listing must be based on medical evidence. Shontos v. Barnhart, 328 F.3d 418, 424 (8th Cir.2003) (quoting 20 C.F.R. § 404.1526(a) and (b)).
To meet Listing 12.04, paragraph A criteria (a set of medical findings) and paragraph B criteria (a set of impairment-related functional limitations), must be met. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(A). In addition, if paragraph B criteria are not met, then a determination must be made as to whether the paragraph C criteria are met.
The parties do not dispute that Vang met the "paragraph A" criteria of Listing 12.04, in that she suffered from a major depressive disorder. The dispute is over the ALJ's evaluation of the "paragraph B" criteria.
The SSA regulations define "activities of daily living" as follows:
See 20 CFR Pt. 404, Subpt. P, App. 1, § 12.00(C)(1) (Mental Disorders, Assessment of Severity).
Relying on the Dr. Butler's opinion and evidence of Vang daily activities as reported by Vang to Dr. Schuler, the ALJ found only a moderate restriction in her activities of daily living. Tr. 14. This Court concludes that this determination is supported by the substantial evidence in the record.
Five months later, Dr. Barron examined Vang. Vang told Dr. Barron that she had been depressed since 2003. Tr. 329. She also informed him that she left her employment in November 2005, not because of allegedly debilitating depression or other mentally related issues, but because the third shift where she worked was terminated and she could not work any other shift due to childcare issues. Tr. 329, 330. Vang also told Dr. Barron that she lived with six children, including two preschool age children, she was able to bathe herself, drive herself to doctor's appointments twice a week, go to the grocery store, and go to the park, soccer tournaments and the Hmong New Year's Celebration on occasion. Tr. 330.
Based on his review of the record, on August 28, 2007, Dr. Alsdurf indicated that Vang had mild restrictions in activities of daily living relying on evidence in the record that Vang bathes, changes clothes, dusts, sweeps, mops, vacuums, does the laundry, goes to the grocery store, watches TV, listens to the radio, and attends soccer tournaments and Hmong New Years. Tr. 351.
Dr. Butler concluded that Vang had a moderate impairment of her restrictions of activities of daily living based on evidence in the record that sometimes Vang was only able to shop and count change, but on other occasions, she was able to get her children ready for school, cook for her family, sweep, and vacuum.
Vang argued that the ALJ should have relied on the opinions rendered by her treating providers, Dr. Hoistad, Moua and Thersleff, that she had marked limitation as to restrictions on activities of daily living, particularly when neither Dr. Schuler nor Dr. Butler had the benefit of the complete medical record.
Acceptable medical sources to establish whether a claimant has a medically determinable impairment include licensed physicians and licensed or certified psychologists. See 20 CFR § 404.1513(a)(1), (2). In addition to evidence from accepted medical sources, evidence from other sources may be considered by an ALJ as
"A treating physician's opinion regarding an applicant's impairment will be granted controlling weight, provided the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record." Hamilton v. Astrue, 518 F.3d 607, 610 (8th Cir.2008) (quoting Singh v. Apfel, 222 F.3d 448, 452 (8th Cir.2000) (citation omitted)); see also Randolph, 386 F.3d at 839 (as it pertains to the Listings, under the applicable regulations, the "ALJ will give `a treating source's opinion on the issue[s] of the nature and severity of [an] impairment[]' controlling weight if such opinion `is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.'") (quoting 20 C.F.R. §§ 404.1527(d)(2) & 416.927(d)(2)).
On the mental impairment questionnaire dated December 9, 2009, Dr. Hoistad and Moua checked that Vang had a marked limitation as to restrictions of daily living. Tr. 643. Likewise, certified nurse practitioner Thersleff checked that Vang had marked limitation as to restrictions of daily living. Tr. 665. However, in reviewing the treatment notes of Dr. Hoistad and Thersleff, there is nothing in them to indicate that Vang was not able to perform daily activities based on her depression. To the contrary, Dr. Hoistad's treatment records show that Vang reported that she cooked for her family; she complained that she could not return to work or school because she had two small children to care for; and she reported being stressed about having to take care of the family and feeling like she was "wearing the pants in the home." Tr. 388, 392, 412, 413. Further, Vang reported to Dr. Hoistad that she engaged in very little social activities because she did not have the time and she was depressed about taking care of her children. Tr. 436.
There is nothing in the initial intake report or progress notes by Thersleff that made any mention of the impact of Vang's depression on her ability to engage in daily activities. "A treating physician's opinion does not deserve controlling weight when it is nothing more than a conclusory statement." Hamilton, 518 F.3d at 610 (citing Piepgras v. Chater, 76 F.3d 233, 236 (8th Cir.1996)); see also Thomas v. Sullivan, 928 F.2d 255, 259 (8th Cir.1991) (holding that the weight given to a treating physician's opinion is limited if the opinion consists only of conclusory statements). Moreover, checking a box on a form, without more, cannot amount to substantial evidence. O'Leary v. Schweiker, 710 F.2d 1334, 1341 (8th Cir.1983) ("Because of the interpretive problems inherent in the use of forms such as the physical capacities checklist, our Court has held that while these forms are admissible, they are entitled to little weight and do not constitute "substantial evidence" on the
Even at the hearing, Vang testified that she was alone with three year old at least three days a week, until the other children returned home in the afternoon, and she was able to drive her family around. Tr. 30-32.
The opinions of Dr. Hoistad, Moua and Thersleff that Vang had marked limitation as to restrictions of daily living conflicts with or is not supported by their treating records and the record as a whole. Consequently, the Court finds that the ALJ did not error in failing to give those opinions substantial weight. See Howe v. Astrue, 499 F.3d 835, 839 (8th Cir.2007) ("[A] treating physician's opinion is afforded less deference when the medical evidence in the record as a whole contradicts the opinion."). Further, the record reflects that Vang's depression set in following the departure of her husband from the home (in 2000 according to what she told Dr. Schuler; in 2003 according to what she reported to Dr. Barron and Thersleff). Yet, despite this depression, she not only worked for several years, but at the same time, without any assistance from her husband, she cared for her family and home. And she only left her job in 2005, the date she alleges the onset of her disability, not because of depression or any other impairment, but because her shift was laid off. This additional evidence in the record supports the conclusion that she was not markedly impaired in her activities of daily living.
This Court has no doubt that Vang's family problems and responsibilities were stressful to her and contributed to her depression. Nevertheless, her ability to care for herself, her home and children, along with the activities she engaged in outside the home, including working for a significant period of time, substantiates the ALJ's determination that she was not markedly impaired in her activities of daily living. For all of these reasons, based on the record as a whole, including the opinions of the consultants, the medical record and the reports pertaining to Vang's activities, the Court concludes that the ALJ's finding that Vang had a moderate restriction in activities of daily living was based on substantial evidence in the record.
The SSA regulations define "social functioning" as follows:
See 20 CFR Pt. 404, Subpt. P, App. 1, § 12.00(C)(2) (Mental Disorders, Assessment of Severity).
The ALJ found that Vang had moderate difficulties in social functioning. Tr. 14. The ALJ relied on the opinion of Dr. Butler for this finding. Id. The ALJ also based his determination on the evidence in the record that showed that Vang got along well with her children, examining psychologist Dr. Barron found her responses were logical and goal directed, and she was able to shop on a regular basis, all of which suggested that she was able to go out into the public and tolerate at least superficial interactions with others. Id. The Court concludes that the ALJ's finding is supported by substantial evidence in the record.
Vang's longtime treating providers, Dr. Hoistad and Moua, opined that Vang only had a moderate, as opposed to marked, limitation as it relates to difficulties in social functioning. Tr. 643. As for Dr. Schuler, Vang reported to him that she did not have any ongoing arguments with anyone. Tr. 283. While Dr. Barron opined that it was doubtful that Vang would be able to work, in part, because of her current social functioning, he did not explain why he believed her social functioning was deficient. Tr. 331. To the contrary, Dr. Barron found that Vang was able to communicate in a manner that was adequate for an entry-level employment situation based on her ability to answer questions during the interview, including that she was able to provide reasonable lengthy, detailed, logical and goal-oriented responses while being an adequate historian. Tr. 328, 329, 331. Id. Further, Vang reported to Dr. Barron that she went to the park, soccer tournaments and the Hmong New Year's Celebration on occasion. Tr. 330.
Without any explanation, Thersleff checked that Vang had a marked limitation as it related to difficulties in social functioning. Tr. 665. Without more, this cannot amount to substantial evidence. O'Leary, 710 F.2d at 1341. However, Thersleff also opined that Vang had a fair ability to interact appropriately with the general public, maintain socially appropriate behavior, and get along with co-workers. Tr. 663-64. There was nothing in Thersleff's notes to indicate Vang could not socially function, except for Vang's report at the initial intake that she had a short temper. Tr. 656.
Dr. Butler opined that Vang had a moderate impairment in maintain social functioning based on her reports of her family visiting her once or twice a week, visiting her friends once a week, attending a Hmong New Year's celebration and attending Hmong funerals. Tr. 617. Dr. Alsdurf indicated that Vang had mild restrictions in maintaining social functioning, and Dr. Nelsen affirmed this determination. Tr. 349, 469. At the hearing, Vang's testimony suggested that she was able to function with her family. Tr. 27-39.
The record as a whole, including the comments and opinions of Vang's treating psychologist and therapist, Dr. Hoistad and Moua, supports the ALJ's conclusion that Vang had only moderate difficulties in social functioning. For all of these reasons, based on the record as a whole, the Court concludes that the ALJ's finding that Vang had a moderate restriction in
The SSA regulations define concentration, persistence, or pace as follows:
See 20 CFR Pt. 404, Subpt. P, App. 1, § 12.00(C)(3) (Mental Disorders, Assessment of Severity).
The ALJ determined that Vang had a moderate ability to maintain concentration, persistence or pace based on Dr. Butler's opinion. Tr. 14. The ALJ acknowledged that Vang had asserted to Dr. Schuler that she had memory problems (citing Tr. 287), but noted that during her mental status examination with Dr. Schuler she displayed no difficulty in performing a simple focused attention task. Tr. 14-15 (citing Tr. 285).
Neither Dr. Schuler nor Dr. Barron opined on Vang's level of impairment with respect to concentration, persistence or pace. However, based on performance testing that Vang underwent, in March 2007, Dr. Schuler stated that Vang's general cognitive abilities were likely in the borderline range if not higher; she had no problem performing a simple focused task;
Dr. Barron opined in August 2007 that it appeared doubtful that Vang would be capable of withstanding work-related stresses, perform routine repetitive activities with reasonable persistence and pace, or meet production requirements in an entry-level employment situation. Tr. 331. Dr. Barron based that opinion on Dr. Schuler's evaluation, and Vang's statements to bearing on current social and emotional functioning, subjective physical problems, and her daily activities of living. Id.
Based on his review of the medical records, including the reports of Drs. Schuler and Barron, in September 2007, Dr. Alsdurf assessed Vang with a moderate impairment in her ability in maintaining concentration, persistence and pace, and Dr. Nelsen affirmed. Tr. 349, 469.
In December 2009, Dr. Hoistad and Moua filled out a mental impairment questionnaire and checked that Vang had a marked limitation as to maintaining concentration, persistence or pace. Tr. 643. They noted that Vang had a poor ability to concentrate or focus. Tr. 642. In Dr. Hoistad's treatment notes, he wrote under the Mental Status section that her attention/concentration was limited or poor; her thought processes were fair, limited or poor; and her associations and memory was fair, limited, poor; and under the section entitled "Symptoms," he checked from time-to-time "inability to focus" and "concentration/focus."
Thersleff also checked in December 2009 in the mental impairment questionnaire that Vang had a marked limitation as to maintaining concentration, persistence or pace. Tr. 665. There was no mention in Thersleff's progress notes to Vang's memory, ability to focus, persistence or pace. Dr. Johnson, Vang's treating psychiatrist, from June 2006 through April 2009 never addressed Vang's memory, ability to focus, concentration, persistence or pace in his records.
The standards of review by this Court are clear.
Slusser, 557 F.3d at 925. Further, the possibility that the Court could draw two
To find a marked impairment, the SSA regulations state that the ALJ must examine the nature and overall degree of interference with function. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C). In addition, regulations explain that the ability to sustain attention and persist at simple tasks, but not complicated tasks, does not satisfy the paragraph B criterion. See 20 CFR Pt. 404, Subpt. P, App. 1, § 12.00(C)(3).
Based on these standards and upon review of the record as a whole, this Court cannot conclude that the ALJ erred in his determination that Vang had a moderate ability to maintain concentration, persistence or pace. Here, the opinions from the various sources were conflicting, and the fact that there is support for a different conclusion — i.e. that Vang was markedly impaired — is not determinative. Culbertson, 30 F.3d at 939. The evaluations of Drs. Schuler and Barron in 2007 suggested that Vang's ability to process information was compromised and would affect her ability to maintain a consistent rate of work performance. At the same time, however, Dr. Schuler indicated that Vang could perform a simple focused attention task, she could learn new information, and her general motor speed was not impaired. In December 2009, Dr. Hoistad, Moua and Thersleff opined that Vang's ability to maintain concentration, persistence or pace was markedly impaired. But based on her review of the record through July 2009, including the records of Drs. Schuler, Barron, Hoistad and Johnson, along with Thersleff's progress notes,
In short, there is no dispute that Vang was suffering from depression during the relevant timeframe. However, just because she is suffering from depression does not mean that she cannot perform routine repetitive activities with reasonable pace and persistence. Indeed, despite her depression, Vang was able to work until November 2005 and only left job because her shift was terminated and she had no daycare to work the other shifts. Tr. 281. Vang even admitted to Dr. Hoistad in December 2007 that she did not want to find work or go to school because she had two small children and her husband had run off. Tr. 392. She did not leave her job because of performance deficiencies; she did not report that she could work or go to school because she was so depressed that she could not concentrate. Id. While Dr. Barron in August 2007 may have had doubts as to whether Vang could perform routine repetitive activities with reasonable persistence and pace, or meet production requirements in an entry-level employment situation, the ALJ had significant evidence in the record
For all the reasons stated above, the Court finds that the ALJ's determination that Vang's depression did not meet or equal Listing 12.04 is supported by substantial evidence in the record.
A claimant's RFC is what he or she can do despite his or her limitations. 20 C.F.R. § 416.945(a)(1). The ALJ must determine a claimant's RFC by considering the combination of the claimant's mental and physical impairments. See Baldwin v. Barnhart, 349 F.3d 549, 556 (8th Cir.2003). However, it is the claimant's burden, not the Commissioner's, to prove the RFC. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.2001) (citing Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir.1995)).
In determining a claimant's RFC, the ALJ must consider all relevant evidence, including medical records, observations of treating physicians and others, and the claimant's own descriptions of his or her limitations. Id. The RFC determination must be supported by "medical evidence that addresses claimant's ability to function in the workplace[.]" Baldwin, 349 F.3d at 556 (quoting Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000)). However, the ALJ is not limited solely to consideration of medical evidence, "but is required to consider at least some supporting evidence from a professional." Baldwin, 349 F.3d at 556 (citing 20 C.F.R. § 404.1545(c)).
The ALJ must consider every medical opinion received, (20 C.F.R. §§ 404.1527(c); 416.927(c)), and the ALJ must resolve the conflicts among the various opinions and reject those conclusions if they are inconsistent with the record as a whole. Heino v. Astrue, 578 F.3d 873, 879 (8th Cir.2009). A treating physician's opinion is entitled to controlling weight if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques, and is not inconsistent with other substantial evidence in the record;
"By contrast, `[t]he opinion of a consulting physician who examines a claimant once or not at all does not generally constitute substantial evidence.'" Cunningham v. Apfel, 222 F.3d 496, 502 (8th Cir.2000) (quoting Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir.1998)). However, there are circumstances "in which relying on a nontreating physician's opinion is proper." Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir.2010). When a treating physician's RFC opinion is not substantially supported by the objective evidence, the ALJ may rely on the opinions of consulting physicians when those opinions are more consistent with the record as a whole. Casey v. Astrue, 503 F.3d 687, 694 (8th Cir. 2007).
The regulations require the ALJ to give reasons for giving weight to or rejecting the statements of a treating physician. Hamilton, 518 F.3d at 610 (citing 20 C.F.R. § 404.1527(d)(2)). Consequently, whether the ALJ gives great or small weight to the opinions of treating physicians, the ALJ must give good reasons for giving the opinions that weight. Id. (citing Holmstrom v. Massanari, 270 F.3d 715, 720 (8th Cir.2001)). "The ALJ may discount or disregard such an opinion if other medical assessments are supported by superior medical evidence, or if the treating physician has offered inconsistent opinions." Id., (quoting Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir.2001)).
An ALJ may consider opinions from non-examining sources on the nature and severity of a claimant's impairments, including those opinions from State agency medical and psychological consultants. See 20 C.F.R. § 416.927(e)(2)(i).
As discussed above, the ALJ assigned Vang a light work RFC. The ALJ also included within the RFC the limitations that Vang was limited to simple, unskilled, visually demonstrated tasks; she could meet the demands of rapid-paced or high production goals; she could tolerate no contact with the public; and that she could tolerate no more than brief and superficial contact with co-workers and supervisors. Tr. 15.
Vang challenged the ALJ's determination of her RFC on two grounds. First, she argued that the RFC did not incorporate Dr. Butler's opinion (which was given great weight by the ALJ) that Vang had marked limitation to "[r]espond appropriately to usual work situations and to changes in a work setting." See Pl.'s Mem., pp. 26-27 (citing Tr. 621). Vang contended that no treating or examining medical source stated that Vang could handle normal work situations or changes in a routine setting and therefore, the ALJ's failure to incorporate this limitation constituted a legal error. Id., p. 28.
Second, Vang asserted that her activities of daily living, which she described as doing a little housework or child-caring, do not translate into an ability to perform gainful employment. Id., pp. 38-39.
Vang's specific complaint as to the RFC assigned by the ALJ was that it did not incorporate Dr. Butler's opinion that Vang had marked limitation to "[r]espond appropriately to usual work situations and to changes in a work setting," (Tr. 621), and that no treating or examining medical source had stated that Vang could handle
This argument has no merit. As a preliminary matter, the Court notes that Dr. Butler's work restrictions made no mention of precluding Vang from being able to respond to usual work situations and or changes in a routine work setting. Tr. 618. To the contrary, Dr. Butler placed the very same work restrictions on Vang as the ALJ did: Vang should be limited to simple and unskilled work that is visually demonstrated; she should have no rapid pace in her work; she should not have any rapid production goals; she should have no public contact; and she should have only brief and superficial contact with co-workers and supervisors. Id.
More significantly, Vang ignored the opinions Dr. Hoistad and Moua, who indicated that Vang had a fair ability (thereby not being precluded) to respond appropriately to changes on a routine work setting; Thersleff's opinion that Vang had a fair ability to respond appropriately to changes on a routine work; and the opinion by state agency psychologist Dr. Alsdurf (affirmed by Dr. Nelsen) that Vang only have a moderate limitation in being able to respond appropriately to changes in the work setting. Tr. 354, 469, 642, 664. These opinions, coupled with Vang's ability to care for her family (with and without her husband) and work for a number of years despite her depression, leads this Court to conclude that the ALJ did not error in not incorporating a limitation that Vang could not handle normal work situation or changes in a routine setting. The non-exertional RFC propounded by the ALJ is supported by the substantial evidence in the record.
In considering a claimant's subjective complaints of disability, the ALJ must assess the claimant's credibility, applying the factors set forth in Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.1984) (vacated on other grounds by Bowen v. Polaski, 476 U.S. 1167, 106 S.Ct. 2885, 90 L.Ed.2d 974 (1986)). The Polaski factors require the ALJ to give full consideration to all the evidence presented relating to a claimant's subjective complaints, including prior work record, and observations of third parties and treating and examining physicians relating to such matters as:
Id.; see also Cox v. Apfel, 160 F.3d 1203, 1207 (8th Cir.1998) (same). "Other relevant factors include the claimant's relevant work history and the absence of objective medical evidence to support the complaints." Cox, 160 F.3d at 1207. The ALJ may consider whether there is a lack of objective medical evidence to support a claimant's subjective complaints, but the ALJ cannot rely solely on that factor in assessing the credibility of Plaintiff's subjective complaints. Ramirez v. Barnhart, 292 F.3d 576, 581 (8th Cir.2002).
"An ALJ may discount a claimant's subjective complaints of pain only if there are inconsistencies in the record as a whole." Johnson v. Chater, 87 F.3d 1015, 1017 (8th Cir.1996) (citing Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir.1993.)) For example, the ALJ may find a claimant's subjective complaints inconsistent with daily activities, lack of treatment, demeanor, and objective medical evidence." Jones v. Chater, 86 F.3d 823, 826 (8th Cir.1996); see also Cox, 160 F.3d at 1207. If the ALJ rejects a claimant's complaint
In performing the credibility analysis, the ALJ examined Vang's daily activities, use of prescription medications, contradictory statements regarding her activities, and her work history. Tr. 17-18. Here, the focus of Vang's argument is that the ALJ improperly assessed her ability to engage in daily activities and her statements about her activities. Pl.'s Mem., pp. 38-99; Pl.'s Reply, pp. 6-7.
As stated previously, on March 15, 2007, Vang reported to Dr. Schuler that she was the primary provider of child care, cooked, did household chores (sweeping, vacuuming, making her bed), handled the grocery shopping, was able to handle finances on her own, watched television, and engaged in activities outside of the home (took walks outside when the weather was nice, visited her family twice a week, visited her friends once a week and attended the Hmong New Year celebrations and Hmong funerals). Tr. 283.
Three months later, in June 2007, Vang and her husband filled out function reports, as did her daughter in February 2008, that essentially represented that Vang did very little except for going to the doctor, grocery shopping once a month, and attending the Hmong New Year celebration. Tr. 149-56, 160-67, 182-89. The only difference among the reports was that Vang and her husband stated that he did all of the cooking, cleaning and shopping, whereas in February 2008, Vang's daughter said she performed these activities. Id.
In August 2007, Vang told Dr. Barron that her husband prepared the meals, she did no household chores, and had no friends. Tr. 328, 330.
Based on the analysis he had already performed of Vang's activities of daily living at step 3, the ALJ determined that Vang was fairly active, which was inconsistent with her allegations of disability. Tr. 17. Additionally, the ALJ found that Vang made contradictory statements as to what she could do on a daily basis, observing that in March 2007, she told Dr. Schuler that she prepared all of the family's meals, could perform household chores and visited friends weekly, but in August 2007, she stated to Dr. Barron that her husband prepared the meals, she did no household chores, and had no friends. Tr. 17. The ALJ also gave limited weight to the function reports by Vang's husband and her daughter because of their relationship to her and incentive to assist her, and he found that the husband and daughter's statements about who did the cooking contradicted each other. Tr. 18. Further, the ALJ rejected the husband's description of what Vang did not do (and what he did), when for an extended period of time, Vang was solely responsible for all of the activities he claimed he performed alone. Id.
This Court has already concluded that there is substantial evidence in the record to support the determination that Vang is only moderately impaired in her activities of daily living. See Section V(A)(1), supra. Further, the records are at odds with Vang's assertion that her condition was so debilitating that she could not work fulltime. For example, there is nothing in the records to suggest that between March 2007 and February 2008, Vang had deteriorated from a functioning individual to someone who was virtually unable to do anything. Instead, around this period, her treating physician, Dr. Johnson, found that her condition was improved or that she was in partial remission. Tr. 304, 305, 440,
At the hearing before the ALJ, Vang testified that she had separated from her husband in 2007. Tr. 27. She had nine children, five of which still with her. Id. Vang was the primary caretaker of the three-year old and was alone at home with this child. Tr. 27, 33. Vang testified that she was able to drive and drove her daughters to the Laundromat or the grocery store. Tr. 28, 32.
Vang is correct that daily activities, standing alone, do not disprove the existence of a disability, nonetheless, they are an important factor to consider in the evaluation of subjective complaints. See Wilson v. Chater, 76 F.3d 238, 241 (8th Cir. 1996). In this case, for the reasons described above, the Court finds no error in the ALJ's examination and assessment of the inconsistencies and contradictions in the record regarding Vang's daily activities. But more importantly, it is important to remember that the ALJ did not rest the credibility analysis solely on Vang's inconsistent statements of daily activities. Rather, he also relied on the other factors that bear on the credibility analysis, including her noncompliance with taking her medications and the fact that she left her work due to factors unrelated to her conditions. Tr. 17. See Allen v. Astrue, No. 07-6078-SSA-CV-SJ-WAK, 2008 WL 2838113, at *3 (W.D.Mo. July 21, 2008) (record did not reveal substantial changes in physical and mental conditions between date claimant stopped working and date of alleged onset of disability).
In sum, the Court finds based on substantial evidence in the record that the ALJ gave good reasons for not fully crediting Vang's testimony regarding the severity of her mental complaints.
For the reasons discussed above, the Court concludes that substantial evidence in the record supports the ALJ's determination that Vang did not meet or equal Listing 12.04. Substantial evidence in the record also supports the ALJ's weighing of the medical opinions, his credibility analysis, and ultimately, his RFC determination. Finally, the vocational expert's testimony that Vang can perform her past employment constitutes substantial evidence to support the ALJ's determination that Vang is not disabled within the meaning of the Social Security Act.
For the reasons set forth above,
IT IS RECOMMENDED THAT:
1. Plaintiff's Motion for Summary Judgment [Docket No. 9] be
2. Defendant's Motion for Summary Judgment [Docket No. 12] be
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C).
http://www.pearsonassessments.com/ HAIWEB/Cultures/en-us/Productdetail.htm? Pid=PAa19100&Mode=summary.
