Robert Blackburn v. Carolyn W. Colvin , 761 F.3d 853 ( 2014 )

United States Court of Appeals
For the Eighth Circuit
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No. 13-2234
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Robert James Blackburn
lllllllllllllllllllll Plaintiff - Appellant
v.
Carolyn W. Colvin, Commissioner of Social Security Administration
lllllllllllllllllllll Defendant - Appellee
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Appeal from United States District Court
for the Northern District of Iowa - Dubuque
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Submitted: April 16, 2014
Filed: July 31, 2014
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Before LOKEN and MURPHY, Circuit Judges, and LIMBAUGH,1 District Judge.
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MURPHY, Circuit Judge.
Robert James Blackburn filed for disability insurance benefits and
supplemental security income (SSI) benefits, alleging that he was disabled due to
bipolar disorder, severe explosive disorder, post traumatic stress disorder (PTSD),
1
The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the
Eastern District of Missouri, sitting by designation.
and attention deficit hyperactivity disorder (ADHD). After a hearing before an
administrative law judge (ALJ), Blackburn's application was denied. The Appeals
Council denied review and Blackburn appealed the Commissioner's final decision
to the district court2 which affirmed. Blackburn now appeals to this court. After full
consideration, we now affirm.
In March 2010 Blackburn applied for disability insurance benefits under Title
II and SSI benefits under Title XVI of the Social Security Act. Blackburn, who was
28 years old at the time, alleged that he had been disabled since April 1, 2009 due to
bipolar disorder, severe explosive disorder, PTSD, and ADHD. According to his
application he had stopped working as a roofer in March 2009 due to his medical
conditions. He had previously worked in distribution, manufacturing, and
construction. Blackburn reported that he lived with various family members. He
watched over his children sometimes and visited them. He prepared his own meals
daily and shopped for food once a month. He did not go out much unless he had
appointments, because he was not comfortable with people and experienced anxiety.
He stated that he was irritable, moody, and angry which created problems getting
along with others.
Prior to his alleged onset date, Blackburn was hospitalized for depression with
suicidal ideation in August 2008. Blackburn subsequently received medical care at
Hillcrest Family Services between November 2008 and the hearing date in September
2011. Most of his appointments were with Sarah Justmann, an advanced registered
nurse practitioner (ARNP). Blackburn had Global Assessment of Functioning (GAF)
scores assessed between August 2008 and June 2011. Out of twenty one such
assessments in the record, Blackburn had five scores in the "mild" range (61–70) and
2
The Honorable Jon Stuart Scoles, Chief Magistrate Judge, United States
District Court for the Northern District of Iowa.
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six scores in the "moderate" range (51–60); the remaining ten scores were in the
"severe" range (41–50).
In May 2010 Dr. Keith Gibson, Ph.D., a psychologist, conducted a consultative
exam for the Iowa Disability Determination Service. Blackburn arrived on time and
was cooperative. He scored 24 out of 30 points on a "mini mental status exam" which
Dr. Gibson noted was consistent with a history of ADHD and "inadequate schooling."
Blackburn reported that he fixed his own meals and "usually stay[ed] in during the
week and like[d] to watch movies." He spent time with his oldest child on weekends
and went to the library; they had recently gone fishing. Dr. Gibson noted that
Blackburn's emotional instability and ADHD "significantly impair[ed] [his] capacity
to maintain attention, concentration, and pace sufficient for a full-time gainful
environment" and he was most severely impaired in interpersonal relationships. Dr.
Gibson concluded however that Blackburn "retain[ed] the cognitive capacity to
respond adaptively and flexibly to changes in the work place, especially in solitary
work environments, but not so much in work environment[s] which require
appropriate interactions with others." According to Dr. Gibson, Blackburn appeared
"capable of remembering and understanding simple instructions, procedures, and
locations in a work setting."
The same month Dr. Jennifer Ryan, Ph.D., conducted a mental residual
functional capacity assessment and psychiatric review based on Blackburn's medical
record. She concluded Blackburn was not significantly limited in understanding and
memory and was at most moderately limited in the areas of sustained concentration
and persistence, but had marked limitations in interacting appropriately with the
public. In her opinion Blackburn had "generally moderate symptom severity and
improvements with medication." Dr. Ryan noted that Blackburn's symptoms had
been exacerbated since February 2010 which she attributed to situational stressors.
She also concluded that Blackburn demonstrated a capacity for brief appropriate
interactions during evaluations and medical appointments. According to Dr. Ryan,
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the preponderance of the evidence "support[ed] the assertion that [Blackburn] is able
to carry out simple instructions and perform routine, repetitive job tasks in work
environments with only minimal interpersonal demands."
Blackburn's application was denied initially in May 2010 and denied on
reconsideration in July 2010. In April 2011 Justmann, who was treating Blackburn,
prepared a mental residual functional capacity questionnaire. The ALJ later
characterized Justmann's assessment as showing "serious to marked limitations in
[Blackburn's] mental functioning resulting in an inability to maintain regular work
attendance or meet competitive work standards." Justmann noted that Blackburn was
"anxious and angry around people" and had had homicidal thoughts in the past.
Blackburn requested a hearing before an administrative law judge (ALJ) which
was held via videoconference on September 27, 2011. At the hearing, Blackburn
testified that he had completed the tenth grade and had no formal vocational training.
Regarding his most recent employment, Blackburn testified that he stopped going to
his roofing job because he "was just getting too overwhelmed" and found it difficult
to get along with his coworkers. At the time of the hearing Blackburn was living with
his mother. Blackburn testified that he spent the day sleeping or watching television.
His oldest son visited him several times a month. According to Blackburn, he easily
became agitated and angry, and there were times when he would not leave the house
because he did not like being around people. He could not go grocery shopping and
could not remember the last time that he went to a store; his mother did his grocery
shopping for him. Blackburn testified that he only went to his court ordered monthly
appointments at Hillcrest, and sometimes went but then walked out. He testified
however that he had lived on his own in an apartment provided by a housing program
for about a year from April 2010 until about two months prior to the hearing. As part
of this program he attended mandatory monthly appointments at Hillcrest. During this
time his mother would check on him sometimes and bring him food.
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Blackburn testified that he had a prior alcohol abuse problem, particularly
during a difficult period following a cousin's murder, but had not consumed alcohol
since "mid last year, maybe longer" and could not drink alcohol due to his current
medication. Blackburn testified that he was on another medication but could not
afford to renew his prescription and that his symptoms had since worsened. He
testified regarding prior medications and side effects, stating that his medication
generally helped his symptoms. Blackburn also described recurring homicidal
thoughts. He also reported that in October 2010 he "blew up" at a family meeting
about visitation and in March 2011 had an altercation with his ex girlfriend during
a supervised visitation with his oldest son, during which he broke a window.
Blackburn testified that he had not had any altercations in "a long time," noting that
over the past few years he had "basically kept to [himself]."
Blackburn's mother, Corrine Plusall, testified at the hearing that Blackburn had
visited her home often when he had his own apartment. She further testified that now
that Blackburn lives with her, he will not go out even to the store. She testified that
he gets very angry and "flip[s] out" three to four times per week.
Vocational expert Marian Jacobs also testified. The ALJ asked her what work
would be available for such an hypothetical individual with no exertional limitations,
who was "capable of tasks that can be learned in three days or less involving no more
than simple work related decisions, with few workplace changes" and with "only brief
and superficial interaction with the public and coworkers and only occasional
interaction with supervisors." Jacobs testified that Blackburn would be unable to do
his past relevant work because it required "significant interaction" with coworkers
and supervisors, but that he could do other work such as final assembler of optical
frames, laundry folder, or night stocker in a "big box" store. When questioned by
Blackburn's attorney as to how often an individual could argue with his supervisor,
Jacobs testified that if someone argued with his supervisor once a month then his
ability to hold a job would be "iffy."
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The ALJ denied Blackburn's application on December 9, 2011 after conducting
a five step eligibility analysis. See 20 C.F.R. §§ 404.1520, 416.920. The ALJ
concluded that Blackburn met the insured status requirements of the Social Security
Act through September 30, 2012 and that Blackburn had not engaged in substantial
gainful activity since his alleged onset date of April 1, 2009. See 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). The ALJ then determined that Blackburn had
demonstrated the severe impairments of bipolar affective disorder, ADHD by history,
personality/intermittent explosive disorder, and a substance abuse disorder in reported
remission. See 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).
The ALJ determined at the third step that none of Blackburn's severe
impairments met the criteria of an impairment in the "listings." If a claimant has an
impairment that meets the criteria for an impairment listed in Appendix 1 to Subpart
P of Part 404 of the Code of Federal Regulations and meets the duration requirement,
then the claimant is found disabled at step three. See 20 C.F.R.
§§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). The ALJ concluded that none of
Blackburn's severe impairments met or equaled the criteria of listings 12.02 ("Organic
mental disorders"), 12.04 ("Affective disorders"), or 12.08 ("Personality disorders").
See 20 C.F.R. Pt. 404, subpt. P, app. 1. At the fourth and fifth steps of the analysis,
based on his determination of Blackburn's residual functional capacity (RFC) and
testimony from the vocational expert, the ALJ concluded that Blackburn was unable
to perform his past relevant work, but that there was other work he could perform.
See 20 C.F.R. §§ 404.1520(a)(4)(iv)–(v), 416.920(a)(4)(iv)–(v).
Blackburn sought review under 42 U.S.C. § 405(g) by the district court which
affirmed the ALJ's decision. Blackburn appeals, arguing that the ALJ improperly
disregarded the medical opinion of his treating nurse practitioner Sarah Justmann,
erred in concluding that Blackburn did not meet the criteria of listing 12.04, and
posed a defective hypothetical to the vocational expert.
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We review de novo the district court's affirmance of a denial of disability
insurance benefits and SSI benefits. Lacroix v. Barnhart, 465 F.3d 881, 885 (8th Cir.
2006). We affirm if the ALJ made no legal error and the ALJ's decision is supported
by substantial evidence on the record as a whole. Id. Substantial evidence is less
than a preponderance of the evidence, Teague v. Astrue, 638 F.3d 611, 614 (8th Cir.
2011), but is "such relevant evidence as a reasonable mind would find adequate to
support the Commissioner's conclusion," Davis v. Apfel, 239 F.3d 962, 966 (8th Cir.
2001). We may not reverse merely because we would have decided differently, or
because substantial evidence supports a contrary outcome. Id.
Blackburn argues that the ALJ erred in concluding that he did not have a severe
impairment that met the criteria of listing 12.04 ("Affective Disorders"). To meet a
listing, a claimant must show that he or she meets all of the criteria for the listed
impairment. Sullivan v. Zebley, 493 U.S. 521, 531 (1990). "An impairment that
manifests only some of those criteria, no matter how severely, does not qualify."
Sullivan, 493 U.S. at 530; see also McCoy, 648 F.3d 605, 611–12 (8th Cir. 2011)
(diagnosis or showing of some of the criteria is insufficient). Blackburn bears the
burden of establishing that he meets all the criteria. McCoy, 648 F.3d at 612.
To meet listing 12.04, Blackburn must show either that (1) he suffers from a
condition or symptom listed in Paragraph A which results in at least two of the four
criteria listed in Paragraph B, or (2) he has a documented chronic affective disorder
resulting in one of three criteria listed in Paragraph C. 20 C.F.R. Pt. 404, subpt. P,
app. 1 § 12.04; see also Myers v. Colvin, 721 F.3d 521, 525–26 (8th Cir. 2013).
Meeting Paragraph B of the listing requires showing that a condition has resulted in
two of the following four criteria: "(1) Marked restriction of activities of daily living;
or (2) Marked difficulties in maintaining social functioning; or (3) Marked difficulties
in maintaining concentration, persistence, or pace; or (4) Repeated episodes of
decompensation, each of extended duration." Id. at § 12.04(B). Alternatively, to
meet Paragraph C, Blackburn must show a medically documented "chronic affective
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disorder of at least 2 years' duration that has caused more than a minimal limitation
of ability to do basic work activities, with symptoms or signs currently attenuated by
medication or psychosocial support" and one of three criteria:
(1) Repeated episodes of decompensation, each of extended duration; or
(2) A residual disease process that has resulted in such marginal
adjustment that even a minimal increase in mental demands or change
in the environment would be predicted to cause the individual to
decompensate; or
(3) Current history of 1 or more years' inability to function outside a
highly supportive living arrangement, with an indication of continued
need for such an arrangement.
Id. at § 12.04(C).
The ALJ found that Blackburn had not met the Paragraph B criteria because he
had experienced no episodes of decompensation of the required duration and showed
only moderate restrictions in the areas of daily living, social functioning, and
maintaining concentration, persistence, and pace. In considering the Paragraph C
criteria, the ALJ noted that Blackburn had not experienced repeated episodes of
decompensation and that the record showed that "minimally increased mental
demands or changes in his work environment" would not cause mental
decompensation. The ALJ further concluded that Blackburn was able to function
outside a "highly supportive living environment."
We conclude that substantial evidence supported the ALJ's conclusion that
Blackburn did not meet all the criteria for the listed impairment. See Sullivan, 493
U.S. at 531. There is no evidence that Blackburn experienced episodes of
decompensation of the required length, which is three episodes within a year that last
for at least two weeks. 20 C.F.R. Pt. 404, subpt. P, app. 1 § 12.00(C)(4). The
assessments of Dr. Gibson and Dr. Ryan both support the ALJ's conclusion that
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Blackburn would experience only moderate restrictions in daily living, social
functioning, and maintaining concentration, persistence and pace. These assessments
also support the ALJ's conclusion that a minimal increase in mental demands or
changes in his work environment would not cause mental decompensation.
Furthermore Blackburn testified that he lived alone for about a year in his own
apartment, outside of a "highly supportive living environment."
Blackburn further argues that the ALJ improperly disregarded the opinion of
nurse practitioner Sarah Justmann, asserting that Justmann was a "treating source"
whose opinion should receive controlling weight. Although the ALJ did not directly
address the issue, the district court noted that Justmann is a nurse practitioner and
therefore under Social Security regulations is not an "acceptable medical source" who
can be considered a "treating source." See 20 C.F.R. §§ 404.1502, 404.1513(a),
416.902, 416.913(a); see also SSR 06-03p, 71 Fed. Reg. 45,593 (Aug. 9, 2006).
Nurse practitioners' opinions are considered an "other" medical source of evidence.
See 20 C.F.R. §§ 404.1513(d)(1), 416.913(d)(1). Evidence from other medical
sources is evaluated based on various factors including the examining or treatment
relationship, length of the relationship, frequency of examination, supportability, and
consistency. See 20 C.F.R. §§ 404.1527(c), 416.927(c).
Blackburn argues that we cannot affirm on this basis because the ALJ did not
make the necessary findings of facts or policy. See Banks v. Massanari, 258 F.3d
820, 824 (8th Cir. 2001). He further argues that Justmann was part of a treatment
team like the one in Shontos v. Barnhart, 328 F.3d 418, 426–27 (8th Cir. 2003),
where we recognized a nurse practitioner and a counselor as treating sources, though
not acceptable medical sources, when engaged in a team approach to care that
included an acceptable medical source. See Lacroix, 465 F.3d at 886 (comparing
Shontos, 328 F.3d at 426–27 with Tindell v. Barnhart, 444 F.3d 1002, 1005 (8th Cir.
2006)).
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We conclude that the ALJ's determination of Blackburn's residual functional
capacity (RFC) was supported by substantial evidence, and that the ALJ did not err
in declining to give Justmann's assessment controlling weight. We conclude it is not
necessary to address Blackburn's arguments regarding Justmann's status because even
a treating physician's opinion is "not inherently entitled" to controlling weight.
Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006); 20 C.F.R. §§ 404.1527(c)(2),
416.927(c)(2). A treating source's opinion will be given controlling weight only if
the ALJ finds that it is "well-supported by medically acceptable clinical and
laboratory diagnostic techniques and . . . not inconsistent with the other substantial
evidence" in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see also Myers,
721 F.3d at 525. Furthermore where a treating source "renders inconsistent opinions
that undermine the credibility of such opinions," the treating source's opinion may be
discounted or disregarded. Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000).
In determining Blackburn's RFC, the ALJ discussed Blackburn's medical
history in detail and specifically addressed the April 2011 questionnaire completed
by Justmann. The ALJ contrasted Justmann's assessment with evidence from periods
where Blackburn had been assessed higher GAF scores, exhibited a stable mood
overall, and was able to spend more time with his children. Considering Justmann's
more recent notes between March and May 2011, the ALJ noted confrontations with
family members but also positive developments. Blackburn was living by himself in
his own apartment and expressed interest in spending more time with his children.
The ALJ found that Blackburn was able to complete personal care and household
tasks, and that the evidence showed that he appeared to do better when living alone.
The ALJ also stated that Blackburn "seem[ed] to be able to control his explosive
anger" and appeared controlled when attending appointments.
The ALJ considered Blackburn's prior hospitalization and assault charges, but
noted that he had received outpatient treatment since November 2008 and subsequent
evidence showed "only intermittent deterioration of his social status due to anger and
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irritability with fluctuations in the GAF ratings as assessed by his treating mental
health source." In June 2011 a "relapse" associated with "situational stressors
related to legal problems and family issues" resulted in Blackburn's commitment but
three months later he had a stable mood and was "oriented, calm, cooperative,
pleasant, and interacted well." The ALJ considered evidence from Justmann and
others that was inconsistent with Justmann's assessment. The ALJ discussed the state
agency consultative evaluation, noting that Blackburn's score on the mini mental
status evaluation was "adequate," with errors consistent with ADHD and "inadequate
schooling." The ALJ noted Dr. Gibson's assessment that Blackburn "showed the
cognitive capacity to respond adaptively and flexibly to changes in the work place,
especially in more solitary work environments." We therefore conclude that even if
we were to consider Justmann as a treating source, the ALJ did not err in discounting
her opinion. Even a treating source does not receive controlling weight if the source's
opinions are inconsistent, see Prosch, 201 F.3d at 1013, or inconsistent with other
substantial evidence in the record, see Myers, 721 F.3d at 525; 20 C.F.R.
§§ 404.1527(c)(2), 416.927(c)(2).
Finally Blackburn argues that the hypothetical posed by the ALJ to the
vocational expert was defective because it did not include "argumentativeness." A
hypothetical is sufficient if it includes the impairments supported by substantial
evidence and found credible by the ALJ. Davis, 239 F.3d at 966. An ALJ is not
required to include impairments from medical opinions that the ALJ has rejected "in
favor of other substantial medical evidence." Prosch, 201 F.3d at 1015. We conclude
that the hypothetical here was not defective. The ALJ incorporated all of Blackburn's
impairments which he found credible and limited the hypothetical individual to "brief
and superficial interaction with the public and coworkers and only occasional
interaction with supervisors." This was based on evidence of Blackburn's
impairments, including the vocational expert's testimony that he could not return to
his past relevant work because it "required significant interaction with coworkers and
supervisors." See Davis, 239 F.3d at 966; Prosch, 201 F.3d at 1015.
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Accordingly, we affirm the denial of benefits.
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