Myers v. Colvin

• Citation: 721 F.3d 521
• Decision Date: 18 July 2013
• Docket Number: No. 12–1779.,12–1779.
• Parties: Angela C. MYERS, Plaintiff–Appellant, v. Carolyn W. COLVIN, Commissioner of Social Security, Defendant–Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

721 F.3d 521

Angela C. MYERS, Plaintiff–Appellant,

v.Carolyn W. COLVIN, Commissioner of Social Security,¹ Defendant–Appellee.

No. 12–1779.

United States Court of Appeals,

Eighth Circuit.

Submitted: Jan. 17, 2013.

Filed: July 18, 2013.

Karen S. Southwick, argued, Syracuse, NY, for appellant.

Gary L. Hayward, AUSA, argued, Des Moines, IA, Bert W. Coleman, AUSA, Kansas City, MO, for appellee.

Before LOKEN, MURPHY, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

Angela Myers appeals the judgment of the district court ² upholding the denial of her application for Social Security disability benefits, disability insurance benefits, and supplemental security income. We affirm.

I.

Myers worked full time as a licensed practical nurse from 1996 to 2007, when she switched to part-time work until her resignation in March 2008. She began to receive treatment for depression and anxiety on approximately a monthly basis from Dr. Matthew Horvath in November 2006. Dr. Horvath diagnosed Myers with dysthymic disorder, anxiety disorder not otherwise specified, and borderline personality disorder.

Dr. Horvath's notes consistently indicated that Myers's depression and anxiety varied with life stressors—particularly the stress from her nursing job—and that her symptoms responded to medication. After Myers's alleged disability onset date, Dr. Horvath also estimated Myers's Global Assessment of Functioning (“GAF”) score on five occasions. See Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed.2000). Four times, the estimated GAF score indicated only “moderate difficulty” in social or occupational functioning; only once did the score reflect a “serious impairment.” Id. In his July 2009 opinion of Myers's ability to perform work-related activities, however, Dr. Horvath stated that Myers suffered from “[m]arked” difficulties in social functioning and in maintaining concentration, persistence, and pace, and that she experienced four or more extended episodes of decompensation.

In August 2009, Myers saw Dr. Kevin Mace with complaints of shortness of breath. Dr. Mace developed a plan for Myers that included “wear[ing] compression stockings while active,” and they “discussed diet and exercise at length.”

Myers applied for disability and disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 423, and protectively applied for supplemental security income under Title XVI of the Act, id. § 1382, claiming a disability onset date of March 20, 2008. Her disability claims were based on depression, anxiety, self-harm behavior, and sleep apnea. The Social Security Administration (“SSA”) denied Myers's claims after initial review. In reaching its decision, the SSA relied in part on the evaluation of a state agency medical consultant who concluded that Myers's concentration and pace suffered with increased stress, but that her impairments did not meet or equal a medical listing as required by the regulations. Myers sought reconsideration, and the SSA again denied her claims.

Myers then requested a hearing before an administrative law judge (“ALJ”). Following a hearing at which Myers appeared and was represented by counsel, the ALJ determined that Myers was not entitled to benefits, because she was not disabled. The ALJ followed the familiar five-step process outlined in 20 C.F.R. §§ 404.1520 and 416.920. See, e.g., Eichelberger v. Barnhart, 390 F.3d 584, 590–91 (8th Cir.2004). At step one, the ALJ determined that Myers had not engaged in substantial gainful activity since her alleged disability onset date. The ALJ concluded at step two that Myers's major depression, dysthymic disorder, anxiety disorder not otherwise specified, borderline personality disorder, obesity, asthma/COPD, and obstructive sleep apnea constituted severe impairments that, “when considered in combination, could reasonably be expected to impose work-related limitations.”

At step three, the ALJ found that Myers's impairments did not meet or medically equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ expressly considered Listing 12.04 and concluded that Myers did not meet or equal it. He concluded that she suffered only from “mild to moderate” restrictions or difficulties in daily activities, social functioning, and maintaining concentration. He also determined that Myers experienced no episodes of decompensation, which the regulations define as “exacerbations or temporary increases in symptoms or signs accompanied by a loss of adaptive functioning.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C)(4). The ALJ gave Dr. Horvath's July 2009 opinion about “marked difficulties” less than controlling weight, because he thought the opinion was inconsistent with the treatment record.

The ALJ concluded at step four that Myers was unable to perform her past relevant work as a licensed practical nurse, but that she had the residual functional capacity (“RFC”) to perform light work with certain physical and psychological restrictions. The ALJ found that Myers's statements about the intensity, persistence, and limiting effects of her symptoms were not fully credible because they were inconsistent with evidence that her symptoms were responsive to medication, and with medical reports and testimony from others showing that Myers “continued to engage in a variety of activities of daily living,” “maintain[ed] regular social contacts,” and “did not want to work.”

Finally, at step five, the ALJ concluded that Myers could perform jobs that exist in significant numbers in the national economy, so she was not disabled within the meaning of the Social Security Act. The ALJ relied on a vocational expert's testimony that an individual with Myers's age, education, past relevant work experience, and RFC could work as a blind aide, a companion, or a personal attendant.

Myers sought review by the Appeals Council, and submitted records showing that she admitted herself to the emergency room at Iowa Lutheran Hospital for treatment of depression on September 20, 2010. The Appeals Council considered this additional evidence and denied Myers's request for review. The district court upheld the Commissioner's decision. Myers now appeals.

II.

We review de novo the district court's decision affirming the denial of social security benefits, and we will affirm “if the Commissioner's decision is supported by substantial evidence on the record as a whole.” Davidson v. Astrue, 578 F.3d 838, 841 (8th Cir.2009) (internal quotation omitted). “Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion.” Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir.2000). We consider the entire record, but we will not reverse the Commissioner's decision if substantial evidence supports it, “even if substantial evidence could have been marshaled in support of a different outcome.” England v. Astrue, 490 F.3d 1017, 1019 (8th Cir.2007). To the extent that Myers challenges legal conclusions, we review the ALJ's determinations de novo. Carlson v. Astrue, 604 F.3d 589, 592 (8th Cir.2010).

Myers first argues that the ALJ lacked substantial evidence to determine that her impairments do not meet or equal a listed impairment. The severity determination occurs at step three of the sequential evaluation process. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). The ALJ must determine whether a “medicalequivalence” exists between a claimant's impairment and a listed impairment. Id. §§ 404.1526(e), 416.926(e). To be medically equivalent, a claimant's impairment must be “at least equal in severity and duration to the criteria of any listed impairment.” Id. §§ 404.1526(a), 416.926(a). In determining severity, an ALJ must give controlling weight to a treating source's opinion if that opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant's] case record.” Id.§§ 404.1527(c)(2), 416.927(c)(2). If medical equivalence is established, the claimant will be found disabled. Id. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii).

Myers argues primarily that the ALJ was required to give Dr. Horvath's opinion controlling weight. A treating source's opinion is not “inherently entitled” to controlling weight. Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir.2006). Because the regulations only accord such weight to source opinions if they are “not inconsistent with the other substantial evidence,” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2), we have upheld an ALJ's decision to discount a treating physician's opinions where those opinions were internally inconsistent, see Prosch, 201 F.3d at 1013, and where the physician's opinion was inconsistent with the claimant's own testimony. See Hacker, 459 F.3d at 937–38.

Myers argues that Dr. Horvath's opinion was consistent with his treatment notes, so the ALJ's decision to discount it as inconsistent with the treatment record is not supported by substantial evidence. We disagree. Dr. Horvath's July 2009 opinion concluded that Myers suffered from “[m]arked” limitations in social functioning. The regulations define “marked” to mean “more than moderate but less than extreme.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C). On all but one occasion throughout Dr. Horvath's treatment of Myers—including four of the five times he estimated her score after her alleged onset date—the doctor estimated Myers's GAF score in a range indicating at worst “moderate difficulty in social [or] occupational ... functioning.” Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed.2000). Although the SSA does not consider GAF scores to “have a direct correlation to the severity requirements,” Revised Medical Criteria for Evaluating Mental Disorders and Traumatic Brain Injury, 65 Fed.Reg. 50746, 50764–65 (Aug. 21, 2000), we have considered GAF scores...