JOHN M. BODENHAUSEN, Magistrate Judge.
This action is before the Court pursuant to the Social Security Act, 42 U.S.C. §§ 401, et seq. ("the Act"). The Act authorizes judicial review of the final decision of the Commissioner of Social Security (the "Commissioner") denying Plaintiff Chantal Ford's application for Disability Insurance Benefits and Supplemental Security Income. All matters are pending before the undersigned United States Magistrate Judge with consent of the parties, pursuant to 28 U.S.C. § 636(c). The matter is fully briefed, and for the reasons discussed below, the Commissioner's decision is affirmed.
On August 26, 2013, Plaintiff filed applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under the Act. Plaintiff alleged a disability onset date of September 17, 2012. (Tr. 12)
Although the ultimate issue before the Court is whether substantial evidence supports the Commissioner's decision, Plaintiff's request for judicial review asks the Court to consider two inter-related issues, namely:
Both of these issues require the Court to address other related issues, including the ALJ's consideration of Plaintiff's credibility and the medical opinion evidence in the administrative record.
After a thorough review of the record, the Court concludes that the Commissioner's decision is supported by substantial evidence. The ALJ gave good reasons for discounting Plaintiff's credibility. Although the ALJ did not give significant weight to any of the medical opinions in the record, contrary to Plaintiff's contention, there is medical evidence in the record, including medical source opinion evidence, to support a conclusion that Plaintiff is capable of sedentary work with the additional limitations noted. Such evidence includes aspects of the opinion provided by Plaintiff's treating physician, Dr. Gayla Jackson, M.D.
Plaintiff was 31 years old at the time of her administrative hearing. Prior to her alleged disability onset, Plaintiff worked in a variety of positions, including as a customer services representative, cashier, and casino security services. (Tr. 20) In her Disability Report — Adult, Plaintiff listed the following mental and physical conditions as limiting her ability to work: mental health; bipolar disorder; depression; anxiety; PTSD; obesity; high blood pressure; migraine headaches; sleep apnea; and asthma. (Tr. 184) In her Function Report — Adult, Plaintiff listed the following limitations to her ability to work: lifting, squatting, bending, standing, walking, sitting, kneeling, talking, stair climbing, seeing, memory, completing tasks, concentration, understanding, following instructions, and getting along with others.
There is a great deal of medical evidence in the record. The Court has considered the entire record and summarizes specific aspects herein to provide context for this memorandum and order.
There are a few treatment records that predate Plaintiff's alleged disability onset date. Dr. Melissa Hollie apparently treated Plaintiff's hypertension, but noted that she was unsure whether Plaintiff had been compliant with her medications. (Tr. 269-71)
Plaintiff received treatment on numerous occasions, for a variety of reasons, from providers at SSM DePaul Health Center, including at the emergency room ("ER"). (
Additionally, a review of all of the treatment records from SSM DePaul Health Center show that the providers regularly found Plaintiff to be oriented, have a normal mood and affect, and intact memory and judgment.
Between 2012 and 2015, Plaintiff received treatment numerous times at Christian Hospital Northwest, including at the ER. Plaintiff was treated for a variety of complaints, including chest pain, ear pain, dizziness, knee pain, a finger burn from Clorox, women's health issues, a hand injury due to punching a person, breathing issues related to asthma, nausea and stomach symptoms. Despite her many trips to this facility, the record shows that Plaintiff typically received routine and conservative treatment and was not in acute distress, either physically or mentally. For example, in December 2012, Plaintiff appeared at the ER complaining of chest pain. Plaintiff was oriented and did not appear to be in distress and did not meet the criteria for critical care. Rather, she was advised to follow up with her primary care physician. As another example, in August 2014, Plaintiff was treated at this facility after complaining of difficulty breathing. She was diagnosed with asthma and tobacco abuse. In April 2015, Plaintiff returned to this facility, complaining of chest pain, shortness of breath, numbness, and a headache. Testing revealed no acute cardiopulmonary abnormalities.
The administrative record includes a large number of treatment notes from the Mercy Clinic and Dr. Gayla Jackson, M.D., from 2013 into 2015. The records suggest that Dr. Jackson treated Plaintiff for a number of different conditions, including but not limited to, asthma, obstructive sleep apnea, morbid obesity, and women's health issues. Plaintiff also reported to Dr. Jackson that she was attempting to conceive and have a child and received treatment from another provider, Dr. Marsha Fisher, related to fertility issues. Plaintiff also received periodic treatment at the Mercy Hospital ER.
Dr. Jackson's treatment notes reflect problems controlling Plaintiff's various symptoms. For example, notes from May 2013 represent that Plaintiff's asthma was not well controlled and that she continued to suffer from morbid obesity. The notes further indicate that Plaintiff suffered from occasional anxiety and was receiving multiple psychiatric-related medications. Dr. Jackson's notes regularly indicate that Plaintiff exhibited a normal mood and affect, and was well-oriented.
Dr. Jackson's notes, which span about two years, indicate that one of the substantial issues with Plaintiff's health care was controlling her asthma and hypertension. This issue is generally consistent with Plaintiff's frequent visits to the ER. Dr. Jackson's notes indicate, however, that Plaintiff was non-compliant with her treatment and/or medications. Dr. Jackson regularly noted that Plaintiff continued to smoke cigarettes despite her conditions. Similarly, Plaintiff was not using her CPAP machine to assist with her obstructive sleep apnea, and was not compliant with other medications, including medications for blood pressure, migraines, and psychiatric issues. Dr. Jackson's notes also indicate that Plaintiff consumed a poor diet, at one time reporting that she subsisted largely on fast food. Dr. Jackson's notes often indicate that she spent more than 50% of her time with Plaintiff on counselling, including encouraging Plaintiff to modify her lifestyle.
On the whole, the treatment notes from Dr. Jackson and Mercy Clinic indicate that Plaintiff typically received routine and conservative treatment for her various ailments, and that Plaintiff was non-compliant with the course of treatment provided and recommended.
Dr. Jackson completed an Arthritis Residual Functional Capacity Questionnaire, dated May 14, 2015, which is one of the important pieces of opinion evidence in the record. (Tr. 987) Dr. Jackson indicated that she had treated Plaintiff every three months for the prior two years, and that Plaintiff had a diagnosis of arthritis. Of twenty-one positive objective signs for arthritis listed on the form, Dr. Jackson identified only "Crepitus" (grinding or popping sounds) of the knees as applying to Plaintiff. Dr. Jackson listed morbid obesity, asthma, and bipolar disorder as additional diagnosed impairments. Although the questionnaire identified twenty-four more generalized symptoms for consideration, Dr. Jackson marked only "breathlessness." Dr. Jackson indicated that Plaintiff was not a malingerer and that emotional factors did not contribute to the severity of Plaintiff's symptoms or functional limitations. Regarding pain, Dr. Jackson listed bilateral pain in Plaintiff's knees/ankles/feet, and that pain would frequently interfere with Plaintiff's attention and concentration. Dr. Jackson opined that Plaintiff could sit for more than two hours at a time (and at least six hours during an eight-hour workday), stand for fifteen minutes before needing to sit down, stand/walk less than two hours during an eight hour workday, and that she would need to shift positions between sitting and standing/walking. Dr. Jackson further opined that Plaintiff would need unscheduled breaks hourly. Dr. Jackson also made specific findings regarding Plaintiff's ability to perform various work-related tasks such as carry weight, twist or bend, and reach. Finally, Dr. Jackson estimated that that Plaintiff would miss about four workdays per month due to her impairments or treatment requirements.
The ALJ's treatment of Dr. Jackson's opinion is discussed in greater detail below.
The administrative record also includes numerous treatment notes from Dr. Jordan Balter. Dr. Balter was Plaintiff's treating psychiatrist from around 2012 until at least 2014. (
Among the medical opinions in the record are three related opinions from Dr. George Vergolias, the last of which was dated September 11, 2013. (Tr. 644-52) Dr. Vergolias was not a treating source, but reviewed records and information, including from Dr. Balter and Plaintiff. Dr. Vergolias concluded that Plaintiff suffered from a functionally impairing psychological condition—bipolar disorder. Dr. Vergolias noted that Plaintiff's functional impairments would result in decreased abilities in the following areas: sustaining cognitive focus; multitasking without errors; problem solving fluidly and without frustration; appropriately interacting with customers/co-workers; and accomplishing tasks within demanding timelines. (Tr. 649) Dr. Vergolias estimated that such limitations would last approximately eight weeks, and recommended alternative treatment options to improve Plaintiff's symptoms. (
The record also includes a "Medical Claim Plan," dated August 27, 2013, and signed by Debra Villar, Mental Health Case Manager, which includes Plaintiff's answers to a questionnaire for mental health claims to "Standard Insurance Company." (Tr. 653-55)
The administrative record includes a Physician's Consult Memo, dated April 30, 2014, from Dr. James Flax, M.D. The memo appears to be directed to a claim associated with Plaintiff's long-term disability carrier. The memo also indicates that Dr. Flax was not an examining source. Rather, Dr. Flax reviewed the information from Dr. Vergolias, Dr. Balter, Mental Health Counselor Debra Villar, and Mercy Clinic.
Dr. Marsha Toll completed a psychiatric review technique and provided a Mental Residual Functional Capacity assessment in the Disability Determination Explanations associated with Plaintiff's DIB and SSI applications. (
On June 3, 2015, the ALJ conducted a hearing on Plaintiff's disability applications. (Tr. 28-58) Plaintiff, who appeared with counsel, testified in response to questions posed by the ALJ. Plaintiff was 31 years old at the time of the hearing. Among other things, Plaintiff testified that her daily activities consisted of lying in bed, watching television, taking medications, and attending doctor's appointments. Plaintiff noted that she both slept a lot but had been up all night and could not sleep. Plaintiff discussed her medications and some of her functional limitations, and that she had arthritis throughout her body. At the time of her hearing, Plaintiff was no longer receiving psychiatric care from a mental health specialist because Dr. Balter died.
Plaintiff recounted her employment history in some detail, including her reasons for leaving various positions. Plaintiff's past employment included working as a cashier, a collections representative, a shift manager at a gas station, a variety customer service representative positions, a van driver for "Call-A-Ride," and a casino security officer. In some instances, Plaintiff left her job due to her physical or mental conditions, in other cases she left for non-health reasons such as low pay or because the business shut down.
Plaintiff testified that she graduated from high school and had "just graduated from Job Corps, ... Retail Sales Program." (Tr. 53)
Dr. Darrell Taylor, an impartial Vocational Expert ("VE"), testified in response to questions posed by the ALJ. The ALJ asked the VE a series of five hypothetical questions. Each question built upon the prior question. The third hypothetical question asked the VE to consider a hypothetical worker, with the same background as Plaintiff, who retained the ability to: lift and carry up to 10 pounds occasionally and lift or carry less than 10 pounds frequently; stand or walk for 2 hours out of an 8-hour day; sit for 6 hours of an 8-hour day; standing and walking would be limited to no more than 15 to 20 minutes at a time; never work with dust, odors, fumes, and pulmonary irritants; and limited to performing simple routine tasks involving only simple workrelated decisions. (Tr. 54-56) This third hypothetical question corresponds to the RFC that the ALJ included in his decision denying benefits.
The VE found that a person having the limitations outlined in the third hypothetical could not return to Plaintiff's past relevant work, but could perform other jobs that exist in substantial numbers in the national and Missouri economy, including hand packer and production worker assembler. (Tr. 57)
The fourth hypothetical added a limitation that the hypothetical worker could only occasionally stoop, crouch, squat, and climb ladders or stairs. (Tr. 57). This additional limitation did not alter the VE's opinion that such a person could work as a hand packer or production worker. (
The fifth and final hypothetical added a limitation that the worker would miss about four days of work each month. The VE concluded that such an individual would be terminated for absenteeism. (
This is an SSI and DIB case. Plaintiff alleged a disability onset date of September 17, 2012. Based on Plaintiff's past earnings history, the ALJ determined that Plaintiff met the insured status through December 31, 2017. (Tr. 12, 14)
In assessing whether Plaintiff was disabled, the ALJ followed the required five-step process laid out in the Commissioner's regulations. At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity after her alleged onset of disability. (Tr. 14) At step two, the ALJ found that Plaintiff had the following severe impairments: "asthma, obesity, migraine headaches, bipolar affective disorder, and post-traumatic stress disorder." (
At step three, the ALJ found that none of Plaintiff's impairments, alone or in combination, met or equaled a listed impairment.
(Tr. 16)
In making this RFC determination, the ALJ also made an adverse determination regarding Plaintiff's credibility. In particular, the ALJ concluded that Plaintiff's "statements concerning the intensity, persistence and limiting effects of [her] symptoms [were] partially credible." (Tr. 17)
As a result of his RFC determination, and with the assistance of testimony from the VE, the ALJ concluded that Plaintiff could not perform the duties of her past relevant work. (Tr. 20)
At step five, the ALJ relied on the VE's testimony to support a conclusion that there existed sufficient jobs in the national economy that Plaintiff could still perform, such as a hand packager or assembler. (Tr. 21) Accordingly, the ALJ found that Plaintiff was not disabled under the Act. (Tr. 25)
Plaintiff raises two issues for review. Both issues ultimately involve the RFC found by the ALJ. First, Plaintiff contends that the ALJ cited no medical evidence to support a finding that she was capable of sedentary work. Plaintiff argues that, because the ALJ discounted every medical opinion in the record, no medical evidence supports the RFC. Plaintiff further contends that the ALJ did not offer a legally sufficient rationale for discounting the opinion of Dr. Jackson, her treating physician. Second, and relatedly, Plaintiff argues that the hypothetical question posed to the VE was insufficient because it did not include a limitation that Plaintiff would miss four days of work per month due to her impairments. The Commissioner has filed a brief in opposition, refuting Plaintiff's allegations of error.
As explained below, substantial evidence supports the ALJ's assessment of the opinion evidence in general, and Dr. Jackson's opinion in particular. Further, substantial evidence supports the RFC ultimately determined by the ALJ and reflected in the hypothetical question posed to the VE.
To be eligible for SSI and DIB benefits, a claimant must prove that she is disabled within the meaning of the Act.
Per regulations promulgated by the Commissioner, the ALJ follows a five-step process in determining whether a claimant is disabled. "During this process the ALJ must determine: `1) whether the claimant is currently employed; 2) whether the claimant is severely impaired; 3) whether the impairment is, or is comparable to, a listed impairment; 4) whether the claimant can perform past relevant work; and if not 5) whether the claimant can perform any other kind of work.'"
The Eighth Circuit has repeatedly emphasized that a district court's review of an ALJ's disability determination is intended to be narrow and that courts should "defer heavily to the findings and conclusions of the Social Security Administration."
Despite this deferential stance, a district court's review must be "more than an examination of the record for the existence of substantial evidence in support of the Commissioner's decision."
Finally, a reviewing court should not disturb the ALJ's decision unless it falls outside the available "zone of choice" defined by the evidence of record.
The Court first addresses the ALJ's adverse credibility determination, as that decision impacted the RFC the ALJ assigned to Plaintiff.
The ALJ's decision to discount Plaintiff's credibility does not depend entirely or even substantially on Plaintiff's activities of daily living. Rather, a review of the ALJ's decision demonstrates that he gave multiple valid and good reasons for his decision in this regard.
"An ALJ has a `statutory duty' to `assess the credibility of the claimant,' and thus, `an ALJ may disbelieve a claimant's subjective reports of pain because of inherent inconsistencies or other circumstances.'"
An ALJ is not required to discuss each
This Court reviews the ALJ's credibility determination with deference and may not substitute its own judgment for that of the ALJ. "The ALJ is in a better position to evaluate credibility, and therefore we defer to [the ALJ's] determinations as they are supported by sufficient reasons and substantial evidence on the record as a whole."
In discounting Plaintiff's credibility, the ALJ considered a host of facts and circumstances supported by the record. The ALJ first noted that, although Plaintiff claims total disability, she previously applied for disability, was turned down, and thereafter returned to work and continued working until her employer closed the facility.
The ALJ also noted that plaintiff had a significant history of non-compliance with her treatment recommendations. The record in this case is filled with instances of such noncompliance. Plaintiff's non-compliance is noticeably extensive in that it is not isolated in terms of time, lifestyle, or specific treatment. For example, despite her sleep apnea, bouts of sometimes severe asthma, and breathing issues, Plaintiff continued to smoke and did not use her CPAP machine. The record also includes several instances in which she was non-compliant with her medications, including her psychiatric medications, as well as exercise and diet requirements.
Furthermore, the ALJ correctly noted that Plaintiff's testimony conflicted with the medical evidence, including evidence from her primary care physician, Dr. Jackson. Plaintiff represented that she had arthritis throughout her body, yet Dr. Jackson's MSS listed only one arthritic symptom—crepitus—and only in Plaintiff's knees. The ALJ made additional, specific findings regarding Plaintiff's credibility concerning the symptoms concerning her headaches and mental health issues.
Finally, the ALJ concluded that the record demonstrated that Plaintiff functioned reasonably well (and sometimes improved) despite the fact that she was often non-compliant with her treatment. The record also showed that, although she claims an inability to perform even sedentary work, she was attempting to become pregnant.
In summary, the ALJ gave numerous good reasons for discounting Plaintiff's subjective complaints. Thus, the ALJ's decision in this regard will not be disturbed.
To the extent Plaintiff's arguments directly or implicitly challenge the validity of the ALJ's credibility analysis, such a challenge cannot be sustained.
Plaintiff contends that the ALJ's determination of her RFC is not supported by any medical evidence. Plaintiff's arguments focus primarily on the ALJ's determination that she retained the RFC to perform sedentary work (albeit with additional limitations).
The Eighth Circuit has explained that
Plaintiff's arguments suggest that the ALJ must have erred in assessing her RFC because the ALJ discounted and did not rely on any of the source opinions. First, as a legal matter, Plaintiff's argument is incorrect. In determining a claimant's RFC, an "`ALJ is not required to rely entirely on a particular physician's opinion or choose between the opinions [of] any of the claimant's physicians.'"
Plaintiff is also wrong factually—the ALJ may have discounted aspects of every opinion, but the ALJ relied on other aspects of several opinions. For example, the ALJ did not completely discount Dr. Jackson's opinion. Rather, the ALJ gave partial weight to Dr. Jackson's opinion, and discounted those aspects which were not supported by the longitudinal record as a whole. (Tr. 19) Similarly, the ALJ gave partial weight to the opinions of Drs. Balter and Toll.
Starting with Dr. Jackson, she completed an arthritis residual function questionnaire, which is relevant to the question of whether Plaintiff is capable of sedentary work. Dr. Jackson treated Plaintiff for years and her opinion listed only one positive, objective sign in support of Plaintiff's arthritis diagnosis—crepitus. Dr. Jackson listed other impairments as morbid obesity, asthma, and bipolar disorder, and listed Plaintiff's prognosis as "fair." Dr. Jackson noted that Plaintiff experienced breathlessness and bilateral pain in her knees/ankles/feet, but did not indicate that Plaintiff experienced pain elsewhere. Dr. Jackson opined that Plaintiff's pain would frequently interfere with her attention and concentration, but also that no emotional or psychological conditions affected her pain. Dr. Jackson opined that Plaintiff could sit for more than two hours and at least six hours each day, and could stand could stand for 15 minutes at a time and less than two hours total each workday. Dr. Jackson noted that Plaintiff did not need to walk around during the workday, would not need a cane or assistive device, but would need to shift between sitting and standing. Dr. Jackson further opined that Plaintiff would require unscheduled breaks frequently throughout the day, and would miss four days per month. Finally, Dr. Jackson noted that Plaintiff could lift and carry 10 pounds frequently and 20 pounds occasionally, could twist occasionally but rarely stoop or climb stairs, could never crouch or climb ladders, had no limitations with her ability to look and turn her head in all directions, and could use her hands without restrictions.
By and large, Dr. Jackson's opinion is unremarkable and consistent with the ALJ's RFC in material respects, and particularly with respect to sedentary work.
As for the limitations in Dr. Jackson's RFC Questionnaire that the ALJ did not accept,
Dr. Jackson's opinion is provided mostly in a conclusory, check-list format. With specific regard to Dr. Jackson's representation that Plaintiff would miss about four days each month and require frequent, unscheduled breaks, the opinion lacks any support and Plaintiff's brief does not point to any specific, objective clinical findings or diagnostic evidence that would support Dr. Jackson's opinion. To the extent Dr. Jackson's opinion rests on Plaintiff's subjective complaints, the ALJ was justified in discounting the opinion.
Put simply, the administrative record, when considered as a whole, supports a conclusion that Plaintiff is capable of work at the sedentary level. The fact that the record might also support a contrary conclusion is not a basis for reversing the ALJ's decision in this case.
The ALJ also gave partial weight to the opinion of Plaintiff's treating psychiatrist, Dr. Balter. From the record, it appears that Dr. Balter provided his opinion in connection with a disability claim to UnitedHealth Group. (Tr. 665) Dr. Balter's opinion is dated April 17, 2013. The ALJ discounted Dr. Balter's opinion because,
The ALJ gave partial weight to the opinion evidence from Dr. Marsha Toll, Psy.D. Dr. Toll completed a psychiatric review technique and provided a Mental Residual Functional Capacity assessment in the Disability Determination Explanations associated with Plaintiff's DIB and SSI applications. Dr. Toll's findings are largely consistent with the ALJ's findings at step three, and did not include any limitations that would be more restrictive than those included in the RFC outlined by the ALJ.
The ALJ gave little weight to the opinions of consulting psychologist, Dr. George Vergolias.
The ALJ also gave little weight to the opinion of Dr. James Flax, MD, a non-examining consulting physician/psychiatry source who provided a "Physician Consult Memo," dated April 30, 2014. The ALJ discounted Dr. Flax's opinion because it was from a non-examining source and given to a long-term disability carrier, and because Dr. Flax was not aware of Plaintiff's noncompliance issues. These are proper reasons to discount an opinion and Plaintiff's brief does not appear to take issue with the ALJ's treatment of this opinion.
In sum, the ALJ gave valid reasons, supported by the record, for giving only partial weight to the opinions of Drs. Jackson, Balter, and Toll, and giving little weight to the opinions of Drs. Flax, and Vergolias. Contrary to Plaintiff's arguments, medical evidence, including aspects of the opinions of Drs. Jackson, Balter, and Toll, supports the RFC found by the ALJ in this case. The ALJ's decision adequately and fairly discharges his duty of resolving the various opinions.
Plaintiff's first point of error cannot be sustained.
Plaintiff also argues that the hypothetical question posed to the VE at her administrative hearing was insufficient. Plaintiff contends that a sufficient question would have included a limitation that Plaintiff would likely miss four days of work per month. As noted above, the source of this additional limitation is Dr. Jackson's opinion. Having concluded that the ALJ did not err in weighing the opinion evidence, and that substantial evidence supports the ALJ's RFC determination, Plaintiff's second point of error cannot be sustained.
The third hypothetical posed to the VE corresponded to the ALJ found by the ALJ.
For the foregoing reasons, Plaintiff's contention that the ALJ erred in formulating her RFC cannot be sustained. The ALJ's decision regarding Plaintiff's RFC is supported by substantial evidence, and because that decision falls within the reasonable "zone of choice," it will not be disturbed.
Accordingly,
Similarly, at page 14 Plaintiff argues —
