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Dennis v. Berryhill

United States District Court, E.D. Missouri, Eastern Division

February 19, 2019

KEVIN DENNIS, Plaintiff,
v.
NANCY A. BERRYHILL, Deputy Commissioner of Operations for Social Security, [1] Defendant.

          MEMORANDUM AND ORDER

          CATHERINE D. PERRY UNITED STATES DISTRICT JUDGE.

         Plaintiff Kevin Dennis brings this action under 42 U.S.C. §§ 405 and 1383 seeking judicial review of the Commissioner's final decision denying his claims for disability insurance benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq., and for supplemental security income (SSI) under Title XVI of the Act, 42 U.S.C. §§ 1381, et seq. Because the Commissioner's final decision is supported by substantial evidence on the record as a whole, I must affirm the decision.

         Procedural History

          On October 21, 2014, the Social Security Administration denied Dennis's April and May 2014 applications for DIB and SSI, in which he claimed he became disabled on October 1, 2010, because of depression, anxiety, bipolar disorder, and stress disorder. Dennis later amended his alleged onset date to January 25, 2014. A hearing was held before an administrative law judge (ALJ) on August 18, 2016, at which Dennis and a vocational expert testified. On December 16, 2016, the ALJ denied Dennis's claims for benefits, finding the vocational expert's testimony to support a finding that Dennis could perform his past relevant work as a mail clerk as well as other work that exists in significant numbers in the national economy. On September 20, 2017, the Appeals Council denied Dennis's request for review of the ALJ's decision. The ALJ's decision is thus the final decision of the Commissioner. 42 U.S.C. § 405(g).

         In this action for judicial review, Dennis claims that the ALJ's decision is not supported by substantial evidence on the record as a whole. Specifically, Dennis argues that the ALJ erred in assessing his residual functional capacity (RFC) by improperly evaluating the opinion evidence of record as well as his credibility. Dennis also contends that the ALJ improperly engaged in his own medical conjecture in his review of the medical evidence. Finally, Dennis argues that the ALJ engaged in an improper and incomplete analysis regarding his ability to perform his past work and, further, posed an improper hypothetical to the vocational expert based upon the flawed RFC. Dennis asks that I reverse the ALJ's decision and award benefits.

         For the reasons that follow, the ALJ did not err in his determination.

         Medical Records and Other Evidence Before the ALJ

         Plaintiff Dennis is a veteran and recovering heroin addict. In 2011, he was convicted of several thefts and burglaries that he committed to support his addiction, and he was sentenced to a term of imprisonment. During his incarceration, Dennis became clean and maintained sobriety. He was released from prison in January 2014 and began receiving counseling, psychiatric treatment, and medical treatment from the Gateway Foundation, VA Medical Center, and Assisted Recovery Centers of America (ARCA). This treatment included individual and group counseling, prescriptions for and management of psychotropic medications, and monthly injections of Vivitrol, a medication used to prevent relapse to opioid dependence. Unfortunately, despite admirable effort, Dennis has had several opioid and other substance abuse relapses since his release from prison.

         Dennis suffers from anxiety and depression. He was also diagnosed with bipolar disorder, post-traumatic stress disorder (PTSD), and personality disorder, which the ALJ found to be severe impairments. Dennis claims that he is disabled and unable to work because of these mental impairments, which exist independently of his drug addiction. He reported to several providers that various work attempts made during his sober periods were unsuccessful because of increased anxiety and irritability, which he claims is caused by being around people, his fear of making mistakes and being reprimanded, and his perception that people can tell that he is mentally ill.

         With respect to the medical records and other evidence of record, I adopt Dennis's recitation of facts set forth in his Statement of Uncontroverted Facts (ECF 24) and note that they are admitted by the Commissioner (ECF 25). This statement provides a fair and accurate description of the relevant record before the Court. Additional specific facts are discussed as needed to address the parties' arguments.

         Discussion

          A. Legal Standard

         To be eligible for DIB and SSI under the Social Security Act, Dennis must prove that he is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Secretary of Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992). The Social Security Act defines disability as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). An individual will be declared disabled “only if his physical or mental impairment or impairments are of such severity that he 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. §§ 423(d)(2)(A), 1382c(a)(3)(B).

         The Commissioner engages in a five-step evaluation process to determine whether a claimant is disabled. See 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The first three steps involve a determination as to whether the claimant is currently engaged in substantial gainful activity; whether he has a severe impairment; and whether his severe impairment(s) meets or medically equals the severity of a listed impairment. At Step 4 of the process, the ALJ must assess the claimant's RFC - that is, the most the claimant is able to do despite his physical and mental limitations, Martise v. Astrue, 641 F.3d 909, 923 (8th Cir. 2011) - and determine whether the claimant is able to perform his past relevant work. Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (RFC assessment occurs at fourth step of process). If the claimant is unable to perform his past work, the Commissioner continues to Step 5 and determines whether the claimant can perform other work as it exists in significant numbers in the national economy. If so, the claimant is found not to be disabled, and disability benefits are denied.

         The claimant bears the burden through Step 4 of the analysis. If he meets this burden and shows that he is unable to perform his past relevant work, the burden shifts to the Commissioner at Step 5 to produce evidence demonstrating that the claimant has the RFC to perform other jobs in the national economy that exist in significant numbers and are consistent with his impairments and vocational factors such as age, education, and work experience. Phillips v. Astrue, 671 F.3d 699, 702 (8th Cir. 2012). If the claimant has nonexertional limitations, including those caused by a severe mental impairment, the Commissioner may satisfy her burden at Step 5 through the testimony of a vocational expert. King v. Astrue, 564 F.3d 978, 980 (8th Cir. 2009).

         I must affirm the Commissioner's decision if it is supported by substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Jones v. Astrue, 619 F.3d 963, 968 (8th Cir. 2010). Substantial evidence is less than a preponderance but enough that a reasonable person would find it adequate to support the conclusion. Jones, 619 F.3d at 968. Determining whether there is substantial evidence requires scrutinizing analysis. Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007).

         I must consider evidence that supports the Commissioner's decision as well as any evidence that fairly detracts from the decision. McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010). If, after reviewing the entire record, it is possible to draw two inconsistent positions and the Commissioner has adopted one of those positions, I must affirm the Commissioner's decision. Anderson v. Astrue, 696 F.3d 790, 793 (8th Cir. 2012). I may not reverse the Commissioner's decision merely because substantial evidence could also support a contrary outcome. McNamara, 590 F.3d at 610.

         B. The ALJ's Decision

         The ALJ found that Dennis met the requirements of the Social Security Act through December 31, 2016, and that he had not engaged in substantial gainful activity since January 25, 2014, the alleged onset date of disability. The ALJ found that Dennis's bipolar disorder, PTSD, opioid dependence in sustained remission, generalized anxiety disorder, and personality disorder were severe impairments, but that these impairments did not meet or medically equal a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 16-17.)[2] The ALJ found that Dennis had the RFC to perform a full range of work at all exertional levels, except that he was limited to “simple, and/or repetitive work that does not require close interaction with the public or coworkers (defined as not needing to meet with coworkers regarding work process, work coordination, work tools, work duties, or things of that nature).” (Tr. 19.)

         The ALJ determined that Dennis's RFC did not preclude him from performing his past relevant work as a mail clerk. (Tr. 34.) Alternatively, considering Dennis's RFC and his age, education, and work experience, the ALJ found vocational expert testimony to support a conclusion that Dennis could perform work as it exists in significant numbers in the national economy, and specifically, as a wrapper/packager, an assembler, or a product inspector. (Tr. 35-36.) The ALJ thus found Dennis not to be under a disability from January 25, 2014, through the date of the decision. (Tr. 36.)

         C. RFC Analysis

         Dennis claims that the ALJ erred in his RFC assessment because he improperly discredited Dennis's subjective complaints, improperly weighed the opinion evidence, and improperly engaged in his own medical conjecture when reviewing the evidence of record.

         A claimant's RFC is the most he can do despite his physical or mental limitations. Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir. 2004). The ALJ bears the primary responsibility for assessing a claimant's RFC based on all relevant, credible evidence in the record, including medical records, the observations of treating physicians and others, and the claimant's own description of his symptoms and limitations. Goff, 421 F.3d at 793; Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20 C.F.R. §§ 404.1545(a), 416.945(a). Accordingly, when determining a claimant's RFC, the ALJ must necessarily evaluate the consistency of the claimant's subjective complaints with the evidence of record. Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005). In addition, because a claimant's RFC is a medical question, “the ALJ should obtain medical evidence that addresses the claimant's ability to function in the workplace.” Hutsell v. Massanari, 259 F.3d 707, 712 (8th Cir. 2001). Some medical evidence must support the ALJ's RFC determination. Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010); Hutsell, 259 F.3d at 711-12. The burden to prove the claimant's RFC rests with the claimant, however, and not the Commissioner. Pearsall, 274 F.3d at 1217.

         1. Evaluation of Symptoms[3]

         For purposes of social security analysis, a “symptom” is an individual's own description or statement of his physical or mental impairment(s). SSR 16-3p, 2017 WL 5180304, at *2 (Soc. Sec. Admin. Oct. 25, 2017) (republished). If a claimant makes statements about the intensity, persistence, and limiting effects of his symptoms, the ALJ must determine whether the statements are consistent with the medical and other evidence of record. Id. at *8.

         When evaluating a claimant's subjective statements about symptoms, the ALJ must consider all evidence relating thereto, including the claimant's prior work record; daily activities; the duration, frequency and intensity of the symptoms; any precipitating and aggravating factors; the dosage, effectiveness and side effects of medication; and any functional restrictions. Halverson v. Astrue, 600 F.3d 922, 931 (8th Cir. 2010); Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984) (subsequent history omitted). If the ALJ finds the statements to be inconsistent with the evidence of record, he must make an express determination and detail specific reasons for the weight given the claimant's testimony. SSR 16-3p, 2017 WL 5180304, at *10; Renstrom v. Astrue, 680 F.3d 1057, 1066 (8th Cir. 2012); Cline v. Sullivan, 939 F.2d 560, 565 (8th Cir. 1991). Here, after finding at Step 3 of the sequential analysis that Dennis's impairments did not meet the criteria for listing-level disability, the ALJ evaluated Dennis's statements of symptoms and assessed his RFC. The ALJ addressed each of the Polaski factors and made specific findings that Dennis's claimed symptoms were inconsistent with the record. Because these findings are supported by substantial evidence on the record as a whole, I must defer to the ALJ's determination. Julin v. Colvin, 826 F.3d 1082, 1086 (8th Cir. 2016).

         The ALJ first noted that Dennis's statements made to a Gateway counselor in January 2014 were inconsistent with his hearing testimony. At the hearing, Dennis testified that it became clear to him in January 2014 that he could not work because of severe anxiety, severe depression, irritability, and anger. Dennis testified his depression was “extremely bad” and was probably his “worst nemesis.” (Tr. 49-50.) But the ALJ noted that Dennis reported to his counselor in January 2014 that he had no employment-related issues and required no employment-related assistance. The ALJ also found it significant that Dennis reported to the counselor at that time that he had no current psychiatric issues other than anxiety and specifically had no serious problem with depression. (Tr. 21, 399.) Inconsistency in a claimant's statements is a valid reason to discount subjective complaints. Ply v. Massanari, 251 F.3d 777, 779 (8th Cir. 2001). The ALJ also noted that Dennis reported to the counselor that the medication he took for anxiety, BuSpar, was very helpful in managing his symptoms. (Tr. 22, 401.) Not only is this statement inconsistent with Dennis's hearing testimony regarding his inability to work in January 2014 because of severe anxiety, but evidence that an impairment can be controlled by treatment or medication is inconsistent with a claim that the impairment is disabling. Turpin v. Colvin, 750 F.3d 989, 993 (8th Cir. 2014).

         The ALJ also noted that at various times throughout his treatment, Dennis stopped taking prescribed medications - including lithium and Vivitrol - and missed several appointments and meetings with healthcare providers. See Brown v. Barnhart, 390 F.3d 535, 542 (8th Cir. 2004) (ALJ properly discounted subjective complaints for, inter alia, claimant's “continuing failure to comply with prescribed treatments.”); see also Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir. 2010) (in determining consistency of claimant's subjective complaints, ALJ may consider noncompliance with doctors' instructions regarding medication).[4] The ALJ also noted that Dennis continued to take clonazepam (a benzodiazepine) despite several VA health providers cautioning him of the addictive nature of the medication and its contraindication with his history of addiction. Although I cannot fault Dennis for continuing with clonazepam given that the medication was prescribed by an ARCA doctor and appeared to help Dennis's anxiety symptoms, I do note the record to show that Dennis became combative with VA providers when they refused to prescribe clonazepam in addition to that prescribed by ARCA (see, e.g., Tr. 494-95), and that it was later opined that Dennis exhibited drug-seeking behavior regarding benzodiazepines. (Tr. 745, 1653.)[5] In determining the consistency of a claimant's subjective complaints, the ALJ may consider the claimant's misuse of medication. Anderson v. Barnhart, 344 F.3d 809, 815 (8th Cir. 2003).

         The ALJ also did not err when he considered the inconsistency between Dennis's claimed inability to participate in group therapy because of anxiety symptoms and his report to his therapist in March 2014 that he was comfortable with his therapy group and group counselor. See Ply, 251 F.3d at 779 (inconsistent statements). Indeed, the record also shows that Dennis actively participated in and obtained benefit from group therapy throughout the spring of 2014 as well as during the summer of 2016.

         The ALJ also noted that Dennis was continually preoccupied with obtaining social security benefits and an increased service-connected disability rating from the VA, and was disinterested in job training or assistance. The record supports this observation. In March 2014, a VA psychiatrist recommended that Dennis participate in compensated work therapy (CWT) but Dennis refused, stating that he wanted disability for anxiety. (Tr. 569.) In June 2014, Dennis worked in construction but was paid “under the table” so as not to jeopardize his chance to obtain disability benefits. (Tr. 403.) In October 2015, Dennis reported to MERS Goodwill - and it was observed by the Goodwill counselor - that he was not motivated to find employment. (Tr. 254.) The Goodwill counselor ultimately opined that, while Dennis had the aptitude and qualities to be successful in a non-stressful work environment, he needed to focus on his mental health and substance abuse and address employment issues at a later time. (Tr. 258.) When Dennis worked at the VA in 2016, he expressed concern as to how this work would affect his application for disability. (Tr. 1529.) Because an ALJ may consider a claimant's financial motivation to qualify for disability benefits as one factor in determining the consistency of the claimant's statements of disabling symptoms, the ALJ here did not err in considering Dennis's apparent desire for secondary gain as one of many factors in his determination. Ramirez v. Barnhart, 292 F.3d 576, 581-82 n.4 (8th Cir. 2002).

         In addition, as noted by the ALJ, treatment providers diagnosed or questioned on more than one occasion whether Dennis was malingering for legal reasons, including seeking inpatient psychiatric treatment to help with his disability claim. (See, e.g., Tr. 1511, 1653.) An ALJ may consider suspected malingering in determining the presence and extent of a claimant's ...


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