Marcus Hensley v. Carolyn W. Colvin

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 15-2829
___________________________
Marcus J. Hensley
lllllllllllllllllllll Plaintiff - Appellant
v.
Carolyn W. Colvin, Acting Commissioner of Social Security
lllllllllllllllllllll Defendant - Appellee
____________
Appeal from United States District Court
for the Eastern District of Arkansas - Little Rock
____________
Submitted: January 14, 2016
Filed: July 18, 2016
____________
Before LOKEN, GRUENDER, and KELLY, Circuit Judges.
____________
LOKEN, Circuit Judge.
Marcus Hensley suffered a serious knee injury while deployed by the United
States Army in Iraq combat in 2005. In September 2007, he underwent right knee
surgery, and the Department of Veterans Affairs (“VA”) awarded him benefits for
service-connected disability. He then applied for Social Security disability insurance
benefits, claiming as severe impairments: posttraumatic stress disorder (“PTSD”),
back pain, right knee pain, and facial twitching. The Commissioner denied the
application, ruling that Hensley was not disabled as of May 19, 2011. Hensley sought
judicial review; the denial was affirmed. Hensley v. Colvin, No. 4:12CV00352, Mem.
& Order (E.D. Ark. Aug. 23, 2013).
Hensley filed this second application for disability insurance benefits in August
2012, while his appeal from the first denial was pending. He alleged the same severe
impairments and a disability onset date of May 20, 2011. His earnings record limited
him to insurance coverage through September 30, 2011. See 20 C.F.R. § 404.131.
After an August 2013 hearing at which Hensley and a vocational expert (“VE”)
testified, the ALJ denied the application, concluding that Hensley’s impairments were
severe but he retained the residual functional capacity (“RFC”) to perform certain
sedentary work during the relevant period, May 20 to September 30, 2011. The
Appeals Council denied further review, the district court1 upheld the denial of
benefits, and Hensley appealed. It was established in the prior proceeding that
Hensley was not disabled prior to the alleged May 20 onset date. Thus, the question
is whether he met his burden to show that he became disabled during the four-month
period at issue. Concluding that substantial evidence on the administrative record as
a whole supports the ALJ’s contrary determination, we affirm. See Welsh v. Colvin,
765 F.3d 926, 927 (8th Cir. 2014) (standard of review).
I. Background
A. The Medical Evidence Relating to Physical Impairments. In May 2011,
Hensley saw his primary-care VA physician, Richard McKelvey, complaining of
worsening low back pain and pain in his left knee, reporting that his surgically
repaired right knee had improved. Dr. McKelvey observed that Hensley appeared
1
The Honorable Brian S. Miller, United States District Court for the Eastern
District of Arkansas, adopting the Recommended Disposition of the Honorable Joe
J. Volpe, United States Magistrate Judge for the Eastern District of Arkansas.
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well, was in “no acute distress,” and had a “normal” knee exam and gait. Dr.
McKelvey ordered x-rays of the lumbar spine and left knee, and an MRI of the lumbar
spine. The spine x-ray showed “very mild spurring in the lower thoracic region” but
was “otherwise unremarkable.” The left knee x-ray was “normal.” X-rays of
Hensley’s right knee, taken in 2010, showed “small suprapateller joint fluid
collection,” but were otherwise “normal” and “unremarkable.”
On July 13, 2011, Jose Escarda, M.D., reviewed the MRI of Hensley’s lumber
spine. Dr. Escarda determined Hensley had “elements of strain from a pelvic
malignment” and recommended a home exercise program with physical therapy
(“PT”). He also noted that Hensley’s knee assessment was “normal,” he had “full
knee range, good lower limb and spinal flexibility,” and he was no longer using a
cane. Hensley received PT in July and August of 2011 and reported his pain fell from
seven or eight on a ten-point scale to four. He also used a “TENS” unit and heat pack
to manage his pain. At his final PT session, Hensley said his pain that morning was
“minimal” and he had no pain at times; the physical therapist concluded Hensley was
“in alignment.” In September 2011, Dr. McKelvey noted Hensley was “doing very
well,” had “full flexion” in his lower back, and his back pain was “stable” due to the
home exercises and PT. Dr. McKelvey also reported that Hensley’s facial tics were
“very well controlled” with medication.
At a May 2012 disability exam, Dr. McKelvey noted that Hensley was “well
appearing,” in “no acute distress,” “with no restriction in mobility,” and “[f]ully alert
and oriented.” Dr. McKelvey summarized his exam findings in a “To Whom It May
Concern” letter. The letter reported that Hensley’s back pain had “been stable for the
past year” though severe at times; he was no longer using a cane; and he had “full
forward flexion,” normal strength, and a normal gait. Dr. McKelvey reported that
Hensley’s right knee pain was “stable” and the knee was less painful on palpation, had
a full range of motion, flexion, and extension, and could bear weight without a brace
or crutch. Treatment of Hensley’s facial tics was continuing, thus far with “limited
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results.” His symptoms of PTSD and depression were being treated with two
medications and were “stable,” though he complained of nightmares.
B. The Medical Evidence Relating to Mental Impairments. The VA first
diagnosed and treated Hensley for PTSD and depression between 2007 and 2009. In
July 2011, he returned to the VA’s mental health clinic for the first time since April
2009 and saw Sandra Ellis, M.D., complaining of “intrusive thoughts, nightmares,
hypervigilance and depression.” Dr. Ellis confirmed the prior diagnosis of PTSD and
major depressive disorder. She assessed a Global Assessment of Functioning
(“GAF”) score of 51, increased the dosage of an antidepressant, and referred Hensley
to outpatient PTSD group therapy. Hensley agreed with the referral and attended the
first therapy orientation session, where he “was attentive and asked questions.” When
he missed the last three sessions, the clinic notified him on September 20 that he was
being discontinued from the program.
Hensley returned to the VA Mental Health Management unit in late August
2012, meeting with Advanced Practice Nurse Penelope Pollock. Hensley reported that
he was sleeping five hours per night with fewer nightmares, was willing to decrease
the dosage of his antidepressant, and was “interested in enrolling in treatment
programming.” Nurse Pollock again scheduled him in the outpatient PTSD therapy
program. He cancelled the initial session, failed to show for the next session, and was
discontinued from the program for lack of attendance on October 2, 2012.
C. The Hearing Testimony. At the administrative hearings, Hensley testified
that depression and PTSD were the primary reasons he felt disabled. He explained
that those conditions made it difficult to “adapt to certain environments,” though he
had no problem functioning with supervisors or coworkers. He testified that
antidepressant medication provided stability, and he felt better and “more stable” after
the increased dosage in July 2011. He outlined his typical activities, which included
driving his children around town, helping with homework, running quick errands,
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attending church twice a month, and assisting with family finances and chores such
as mowing the lawn. The ALJ asked:
Q. Tell me why you can’t get a job where it’s mostly sitting all
day and just do it.
A. My mental state. I used to be a very social guy. After the stuff
I’ve been through and I’ve seen, it’s hard for me to socialize with people.
Q. What about a job where I set you in the corner and let you look
at the wall? Your desk is up against the wall and you can do your work
there. Tell me why you can’t do that?
A. I would be up and down out of my chair with pain. The leg
starts hurting. My back kills me. I’ve got to have some type of support
in my chair. This chair isn’t helping. I would be embarrassing myself
due to my PTSD and anxiety and depression. I just can’t do it.
Prior to the hearing, the ALJ recognized that Hensley suffered from one or more
severe impairments and therefore testimony by a VE would be needed to complete
steps four and five of the well-established disability evaluation -- determining whether
Hensley had the RFC to perform his past relevant work or “other work [that] exists
in significant numbers in the national economy.” See 20 C.F.R. §§ 404.1520,
404.1560. At the hearing, after Hensley testified, the ALJ asked VE Elizabeth Clem
to assume that a person of Hensley’s age, education, and work experience was limited
to jobs at the sedentary exertional level with the following limitations: never climb
ladders, ropes, or scaffolds; occasionally climb ramps and stairs; occasionally balance,
stoop, kneel, crouch, or crawl; and with a simple routine, repetitive tasks, only
incidental interpersonal contact, and supervision that is simple, direct, and concrete.
Clem testified that this person could not do Hensley’s past relevant work but could
perform jobs that exist in significant numbers in the national or regional economies.
Clem cited two examples from the Dictionary of Occupational Titles (“DOT”) --
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lamp-shade assembler, DOT 739.684-094, and stringing-machine tender, DOT
689.585-018.
D. The ALJ’s Decision. In a September 2013 decision, the ALJ found (i) that
Hensley had severe impairments -- degenerative disc disease of the lumbar spine,
PTSD, anxiety disorder, and status-post right knee arthroscopy – that “could
reasonably be expected to cause” his complained-of symptoms; (ii) that his
“statements concerning the intensity, persistence and limiting effects of [his]
symptoms are not entirely credible”; and (iii) that he had the RFC described in the
hypothetical to VE Clem, except that he was limited to no climbing. Based on this
RFC and the testimony of Clem, the ALJ concluded that Hensley was not disabled
because he retained the RFC to do certain unskilled sedentary jobs during the four-
month time period at issue. The ALJ acknowledged that the VA had awarded Hensley
disability payments but noted that “a finding of disability from another agency is not
binding on the Social Security Administration,” which must make an independent
determination of disability as defined by the Social Security Act.
II. Discussion
On appeal, Hensley argues that the ALJ erred in: (1) determining the RFC; (2)
partially discounting his credibility; and (3) addressing the VA disability finding.
“We review the district court’s decision upholding the denial of benefits de novo but,
like the district court, we must uphold the ALJ’s decision if it is supported by
substantial evidence on the administrative record as a whole.” Welsh, 765 F.3d at
927. “Substantial evidence is less than a preponderance, but enough that a reasonable
mind might accept it as adequate to support a decision.” Cox v. Astrue, 495 F.3d 614,
617 (8th Cir. 2007) (quotation omitted).
A. The RFC Determination. RFC is defined as the most a claimant can do
despite his limitations, including both physical and mental limitations. 20 C.F.R.
-6-
§ 404.1545(a). “The Commissioner must determine a claimant’s RFC based on all of
the relevant evidence, including the medical records, observations of treating
physicians and others, and an individual’s own description of [his] limitations.”
Myers v. Colvin, 721 F.3d 521, 527 (8th Cir. 2013) (quotation omitted). Where, as
here, the claimant proves he cannot perform his past relevant work, the Commissioner
has the burden of producing evidence that he has the RFC to perform other jobs. Golf
v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005). However, “the burden of persuasion
to prove disability and to demonstrate RFC remains on the claimant, even when the
burden of production shifts to the Commissioner at step five.” Id. (alteration and
quotation omitted).
Hensley argues that “reversal is warranted” because “no medical opinion
supports the ALJ’s RFC” determination, and the ALJ failed to order a consultative
examination (“CE”) to correct this lack of direct opinion evidence. We disagree.
“Because a claimant’s RFC is a medical question, an ALJ’s assessment of it must be
supported by some medical evidence of the claimant’s ability to function in the
workplace.” Cox, 495 F.3d at 619. However, there is no requirement that an RFC
finding be supported by a specific medical opinion. See Myers, 721 F.3d at 526-27
(affirming RFC without medical opinion evidence); Perks v. Astrue, 687 F.3d 1086,
1092-93 (8th Cir. 2012) (same).
In the typical Social Security disability case, the administrative record includes
one or more opinions by the claimant’s treating physician(s) as to the impact of
impairments on his RFC. In this case, after Hensley applied for Social Security
disability benefits, he asked “if Dr. McKelvey could complete an assessment of ability
to do work related activities.” The VA advised “that primary care providers at the VA
cannot complete those kinds of assessments.” Instead, Dr. McKelvey provided a “To
Whom It May Concern” letter summarizing his May 2012 disability exam that
addressed each of Hensley’s severe impairments. Together with the extensive VA
treatment records, this provided adequate medical evidence of Hensley’s ability to
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function in the workplace. Accord Cox, 495 F.3d at 620 n.6. In the absence of
medical opinion evidence, “medical records prepared by the most relevant treating
physicians [can] provide affirmative medical evidence supporting the ALJ’s residual
functional capacity findings.” Johnson v. Astrue, 628 F.3d 991, 995 (8th Cir. 2011).
With the medical record adequately developed, the ALJ was not required to seek
additional information from Dr. McKelvey or order a CE. See KKC ex rel. Stoner v.
Colvin, 818 F.3d 364, 372-73 (8th Cir. 2016); 20 C.F.R. § 404.1519a(b).
Hensley’s remaining attacks on the ALJ’s RFC findings and determination fall
in the category of deficiencies in opinion writing. “[A]n arguable deficiency in
opinion writing that had no practical effect on the decision . . . is not a sufficient
reason to set aside the ALJ’s decision.” Welsh, 765 F.3d at 929.
Hensley first argues the ALJ “ignored” a November 2010 letter from Dr.
McKelvey stating that Hensley “needs a residence on the ground level with no stairs.”
This letter was written well prior to the time period at issue on a subject addressed by
the climbing restriction included in the RFC. The ALJ properly focused on Dr.
McKelvey’s later reports during the relevant period. “[A]n ALJ is not required to
discuss every piece of evidence submitted.” Black v. Apfel, 143 F.3d 383, 386 (8th
Cir. 1998). Relatedly, Hensley argues the ALJ erred in relying on the VE’s testimony
because the ALJ’s hypothetical to the VE assumed a worker who can occasionally
climb ramps and stairs, whereas the ALJ’s subsequent RFC finding limited him to no
climbing. However, this discrepancy was irrelevant to the ALJ’s RFC determination.
The two jobs the VE identified in response to the ALJ’s hypothetical -- lamp-shade
assembler and stringing-machine tender -- do not require climbing. See DOT
739.684-094 (lamp-shade assembler), 689.585-018 (stringing-machine tender); cf.
Van Vickle v. Astrue, 539 F.3d 825, 830 (8th Cir. 2008).
-8-
Hensley further argues the ALJ “essentially ignored” his alleged foot condition,
mild bilateral halux valgus2 deformities, which allegedly prevented him from doing
the standing and walking involved in sedentary work. Though Hensley did not list
this impairment in his application for disability benefits, the ALJ inquired about it at
the August 2013 hearing. Hensley testified he had the condition for as long as he
“could remember.” It caused some pain, but he had not yet agreed to surgery his VA
medical providers offered in March 2011. The ALJ was not required to address this
condition in his opinion. See Ostronski v. Chater, 94 F.3d 413, 419 (8th Cir. 1996)
(refusing surgery suggests condition is not disabling).
Finally, Hensley argues the ALJ failed to consider whether he could sustain his
ability to work over a full day in a real world work setting, as Social Security Ruling
96-8p required. However, Hensley “neither identifies evidence the ALJ failed to
consider nor specifies how the ALJ’s assessment was unrealistic.” Juszczyk v. Astrue,
542 F.3d 626, 633 (8th Cir. 2008). The ALJ explicitly considered the persistence and
limiting effects of Hensley’s symptoms and impairments, and the RFC took into
account the effect particular work environments would have on Hensley’s ability to
function by limiting the jobs he could perform to those with direct supervision and
incidental interpersonal contact. Thus, the ALJ properly “engaged in a realistic
assessment of [Hensley’s] abilities.” Id.After careful review of the administrative record, like the district court we
conclude that substantial evidence supports the ALJ’s RFC determination. Regarding
Hensley’s mental impairments, the medical records reflect that Dr. Ellis assigned
2
Hallux valgus is an “angulation of the great toe away from the middle of the
body, or toward the other toes; the great toe may ride under or over the other toes.”
Dorland’s Illustrated Medical Dictionary 818 (32nd ed. 2012).
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Hensley a GAF score of 51 in July 20113 and increased the dosage of an
antidepressant medication. Dr. McKelvey observed that Hensley was “doing very
well” and later reported that Hensley’s mental illness symptoms had stabilized.
Hensley testified that, after the increased dosage, he got “better” and felt “more
stable.” He also testified to having no problem functioning with coworkers or
supervisors. In August 2012, Nurse Pollock noted that Hensley was continuing with
the medications, agreed to a reduced antidepressant dosage, and was sleeping five
hours a night and having fewer nightmares. After both sessions, Hensley expressed
interest in attending a prescribed group therapy program but then failed to attend. The
ALJ found that Hensley’s mental impairments were controlled, or at least controllable,
during the relevant period. “If an impairment can be controlled by treatment or
medication, it cannot be considered disabling.” Brace v. Astue, 578 F.3d 882, 885
(8th Cir. 2009) (quotation omitted); see 20 C.F.R. § 404.1530(a) (“to get benefits, you
must follow treatment prescribed by your physician if this treatment can restore your
ability to work”). The ALJ’s RFC determination accounted for Hensley’s mental
impairments by limiting him to jobs that involve simple, repetitive tasks learned by
rote, with incidental interpersonal contact and simple, direct, concrete supervision.
Regarding Hensley’s physical impairments, the medical evidence during and
immediately after the time period in question showed that, after completing PT,
Hensley reported greatly reduced, sometimes nonexistent, back and knee pain. His
physical therapist determined he “was in alignment,” Dr. McKelvey confirmed his
3
This score indicates “moderate difficulty” in social and occupational
functioning. Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000).
GAF scores are not determinative of RFC, see Nowling v. Colvin, 813 F.3d 1110,
1116 n.3 (8th Cir. 2016), but they offer some evidence of a claimant’s ability to
function. See Myers, 721 F.3d at 525. Hensley notes that his GAF score was lower
in August 2012, but that assessment by Nurse Pollock occurred almost a year after the
relevant time period.
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pain was “stable” as a result of the therapy, and both Dr. Escarda and Dr. McKelvey
reported that Hensley’s knee range, flexion of knee and spine, gait, and strength were
“normal.” Following the May 2012 disability exam, Dr. McKelvey confirmed
Hensley’s pain had “been stable for the past year,” he had “no restriction in mobility,”
was not using a cane, and could bear weight without a brace or crutch. Hensley
testified he no longer used a knee brace because of effective pain medication. Dr.
McKelvey also observed that Hensley’s facial tics were “very well controlled” with
medication. Hensley’s testimony regarding his daily activities supported the ALJ’s
finding that he had the RFC to perform a limited universe of sedentary jobs. The ALJ
accounted for Hensley’s physical impairments by limiting him to sedentary jobs that
do not require climbing of ladders, rails, or stairs and that require only occasional
balancing, stooping, kneeling, crouching, and crawling.4
B. Subjective Complaints. Hensley claims the ALJ erred in discounting his
complaints about the “intensity, persistence, and limiting effects” of his subjective
complaints. The ALJ properly cited and considered the factors enumerated in Polaski
v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984), before discounting Hensley’s
complaints of disabling pain and other subjective symptoms. The ALJ did not dispute
that Hensley experienced symptoms, but found those symptoms not to be as limiting
as Hensley claimed because, among other reasons, no treating physician had opined
that he was disabled; he did not follow the recommended course of treatment for
PTSD; his impairments were controlled by medication and treatment; and he
performed “a wide range of daily activities.” “We will defer to an ALJ’s credibility
finding as long as the ALJ explicitly discredits a claimant’s testimony and gives a
good reason for doing so.” Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007)
(quotations omitted).
4
Notably, the two state-agency physicians who reviewed Hensley’s medical
record found he had the RFC to do certain light work. See 20 C.F.R. § 404.1567(a)-
(b). The ALJ afforded Hensley a more restricted, sedentary-based RFC.
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Hensley attacks each of these findings. Each is supported by substantial
evidence in the administrative record, and Hensley’s contentions that the ALJ should
have weighed these facts differently or drawn different conclusions do not warrant
relief under our deferential standard of review. “It is not the role of this court to
reweigh the evidence presented to the ALJ.” Cox, 495 F.3d at 617 (quotation
omitted). However, one contention deserves further discussion.
Hensley argues the ALJ erred in discounting his subjective complaints based
on his failure to attend prescribed group therapy to treat his PTSD, without inquiring
into the circumstances surrounding the alleged failure. Hensley relies on Pate-Fires
v. Astrue, 564 F.3d 935, 937, 945-46 (8th Cir. 2009), where the evidence
“overwhelmingly demonstrate[d]” that the failure of a claimant to take her prescribed
medication “was a medically-determinable symptom of her mental illness,” described
as “bipolar disorder I severe, with psychotic features.”
The Social Security Administration has recognized that there are circumstances
in which a claimant’s failure to follow prescribed treatment is justifiable and therefore
does not preclude a finding of disability. See Soc. Sec. Ruling 82-59. Whether severe
mental illness has resulted in justifiable noncompliance is a fact-intensive issue. Here,
Hensley accepted and completed PT that lessened his physical impairments. In the
relevant time period, he was prescribed and took medications that stabilized his mental
impairments, PTSD and depression. In July 2011 and again in August 2012, he was
prescribed and expressed interest in completing a group therapy program to treat his
PTSD. But after attending one session in 2011, he twice failed to attend and was
discontinued from that program.
When questioned at the hearing, Hensley testified that the VA mental health
providers failed to contact him about the sessions. The medical records suggest
otherwise, but in any event, there is no evidence that Hensley’s failure to attend “was
a medically-determinable symptom of [his] mental illness.” Therefore, the ALJ could
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reasonably conclude that Hensley’s repeated failure to attend a prescribed course of
treatment was evidence that his mental impairment was less disabling than Hensley
claimed. See Bradly v. Astrue, 528 F.3d 1113, 1115 (8th Cir. 2008).
C. VA Disability Finding. Hensley’s final argument is that the ALJ did not
“properly evaluate and discuss” the VA finding that he is disabled. He relies on
Morrison v. Apfel, 146 F.3d 625, 628 (8th Cir. 1998), but in that case the ALJ did not
even mention a VA finding that the claimant was “permanently and totally disabled.”
Here, the ALJ explicitly acknowledged the VA’s disability finding, and correctly
noted that the disability finding of another agency like the VA was not binding on the
Social Security Administration. See 20 C.F.R. § 404.1504. There was no error. See
Pelkey v. Barnhart, 433 F.3d 575, 579-80 (8th Cir. 2006) (“the ALJ did not err
because he fully considered the evidence underlying the VA’s final conclusion that
Pelkey was . . . disabled”).
The judgment of the district court is affirmed.
KELLY, Circuit Judge, dissenting.
In my view, the ALJ did not adequately identify and take into account the
limitations imposed by the severe PTSD Hensley has suffered from since returning
from deployment in Iraq, where he experienced mortar attacks. I would therefore
remand this case to the district court with instructions to remand the case to the Social
Security Administration for further consideration of the evidence concerning
Hensley’s PTSD.
The court’s description of the medical evidence is accurate so far as it goes, but
some additional facts are needed to complete the picture. Initially, Hensley’s GAF
score, recorded at 51 in June 2011, had fallen to 41 as of August 2012. These
assessments suggest that Hensley’s GAF score was in the 40–50 range during the
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disability period, a range that is generally incompatible with the ability to work. See
Pate-Fires v. Astrue, 564 F.3d 935, 944 (8th Cir. 2009) (collecting cases). Yet the
ALJ failed to even discuss these scores, much less explain how the limitations in
functioning they reflect were incorporated into the hypothetical he posed to the
vocational expert.5
It is certainly true that “an ALJ may afford greater weight to medical evidence
and testimony than to GAF scores when the evidence requires it.” Jones v. Astrue, 619
F.3d 963, 974 (8th Cir. 2010) (quotation omitted). But here the GAF scores are
consistent with the medical evidence and testimony, not belied by them. Hensley’s
wife reported in August 2012 that Hensley was unable to prepare meals because of his
nervousness and the fact that he would lose focus on what he was cooking. He was
unable to mow lawns without taking breaks every 10–15 minutes, resulting in his
taking nearly five hours to complete the entire lawn. He didn’t feel comfortable going
out alone without a family member, and according to his testimony before the ALJ,
he hadn’t been to a football game in about two years due to the discomfort he felt
around other people. He and his wife no longer went out to dinner together.6
5
The court correctly notes that the GAF of 41 postdates Hensley’s disability
period, see ante at 10 n.3, but Hensley’s condition following the disability period can
constitute evidence of his level of functioning during the disability period – which is
presumably why the court relies on other information gathered in August 2012 to
support its decision to deny disability benefits. See ante at 10; Pyland v. Apfel, 149
F.3d 873, 877 (8th Cir. 1998) (“Evidence of a disability subsequent to the expiration
of one’s insured status can be relevant, however, in helping to elucidate a medical
condition during the time for which benefits might be rewarded.”); Poe v. Harris, 644
F.2d 721, 723 n.2 (8th Cir. 1981) (“Evidence of an applicant’s condition ‘subsequent
to the date upon which the earning requirement was last met is pertinent evidence in
that it may disclose the severity and continuity of impairments existing before the
earning requirement date . . . .’” (citation omitted)).
6
The ALJ discounted Hensley’s testimony because he dropped out of therapy
sessions in 2010 and 2011, despite the fact that the testimony is consistent with his
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None of these limitations were reflected in the ALJ’s hypothetical, which
simply asked the vocational expert to opine on a person “[l]imited to simple routine
and repetitive tasks with only incidental interpersonal contact in work where the
supervision is simple, direct, and concrete.” “When a hypothetical question does not
encompass all relevant impairments, the vocational expert’s testimony does not
constitute substantial evidence.” Hunt v. Massanari, 250 F.3d 622, 626 (8th Cir.
2001). In fact, when Hensley’s attorney modified the hypothetical to specify a person
who was significantly impaired in his ability to maintain concentration and focus,7 the
vocational expert testified that such a person would be unable to perform any of the
jobs she had listed in response to the ALJ’s hypothetical.
The court relies instead on a June 2012 assessment by Hensley’s primary-care
physician, Dr. Richard McKelvey, that Hensley’s symptoms of PTSD and depression
were “stable,” as well as testimony to the same effect from Hensley. See ante at 10.
low GAF scores. There are any number of reasons why a claimant might not take
advantage of treatment that do not bear on his credibility in addition to the specific
ground recognized in Pate-Fires, 564 F.3d at 945 – that the failure “was a medically-
determinable symptom of [the claimant’s] mental illness.” See Charles W. Hoge, et
al., PTSD Treatment for Soldiers after Combat Deployment: Low Utilization of
Mental Health Care and Reasons for Dropout, 16 Psychiatric Services 997, 997–98
(Aug. 2014), http://dx.doi.org/10.1176/appi.ps.201300307 (collecting evidence to
suggest that therapy is underutilized for reasons including distrust or negative
perceptions of care, perceptions of self-reliance, lack of availability, and stigma); Soc.
Sec. Ruling 96-7p, 1996 WL 374186, at *7–*8 (1996) (“[T]he adjudicator must not
draw any inferences about an individual’s symptoms and their functional effects from
a failure to seek or pursue regular medical treatment without first considering any
explanations that the individual may provide.”). The ALJ inquired only in the most
cursory fashion about Hensley’s reasons for not going to therapy, so it is not possible
to determine whether those reasons reflect badly on his credibility or not.
7
In his exact words, a person who “[c]ould not maintain concentration and focus
with a marked restriction which would significantly impair the ability to do so, but it
wouldn’t be precluded.”
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But to describe symptoms as “stable” is simply to state that they are not getting any
better or worse; it says nothing about whether the symptoms are disabling. Cf. Cox
v. Barnhart, 345 F.3d 606, 609 (8th Cir. 2003) (“It is possible for a person’s health to
improve, and for the person to remain too disabled to work.”); Hutsell v. Massanari,
259 F.3d 707, 712 (8th Cir. 2001) (“[T]he Commissioner erroneously relied too
heavily on indications in the medical record that [the claimant] was ‘doing well,’
because doing well for the purposes of a treatment program has no necessary relation
to a claimant’s ability to work or to her work-related functional capacity.”); Gude v.
Sullivan, 956 F.2d 791, 794 (8th Cir. 1992) (holding that the fact that a physician
reported that the claimant was “doing well” could mean that they were “doing well for
someone with a kidney transplant,” not that they weren’t disabled). Indeed,
immediately after Hensley testified that the medications made his condition “more
stable,” he clarified that he didn’t feel he was getting any better. Nothing in Dr.
McKelvey’s assessment is inconsistent with Hensley’s GAF scores and testimony,
both of which point to his PTSD being disabling.
Accordingly, I would remand this case for further consideration.
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