Davis
v.
Massanari

This case is not covered by Casetext's citator
United States District Court, D. MinnesotaNov 30, 2001
No. 99-1292 ADM/FLN (D. Minn. Nov. 30, 2001)

No. 99-1292 ADM/FLN

November 30, 2001

William L. Orr, Esq., for Plaintiff

Roylene A. Champeaux, Esq., for the Government.


REPORT AND RECOMMENDATION


THIS MATTER came before the undersigned United Magistrate parties' cross-motions for summary judgment [## 16 and 23]. Plaintiff Eugene Davis ("Mr. Davis or "Plaintiff") seeks judicial review of the Commissioner of Social Security's final decision denying him a period of disability and Disability Insurance Benefits ("DIB") under Titles II of the Social Security Act. See 42 U.S.C. § 416(i), 423(d), 1381a, 1382c. The Court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g) and 1383(c)(3). For the reasons which follow, the Court recommends that Plaintiff's Motion be denied and Defendant's Motion be granted.

I. PROCEDURAL HISTORY

This case presents an unusual situation. The Social Security Administration ("SSA") initially found Mr. Davis disabled as of June 1, 1990; however, his benefits were terminated as of January 1, 1997, because alcoholism an/or drug addiction was a contributing factor material to the determination of disability. (Tr. 14.) Mr. Davis appealed this determination alleging that he had been unable to work since January 1, 1997, due to serious medical conditions. (Id.) However, this timely appeal was denied upon reconsideration. (Id.) On March 11, 1997, he made a timely request for a hearing, which was held on September 10, 1997, claiming disability due to various physical and mental conditions. (Tr. 131-35.) Shortly thereafter, Administrative Law Judge Roger W. Thomas ("ALJ Thomas") denied Mr. Davis' claim. (Tr. 366-82.) The Appeals Council denied Mr. Davis' request for review of the ALJ's decision. (Tr. 392-94.)

After thoroughly exhausting all his administrative remedies, Mr. Davis appealed the denial of his application in this Court, but the case was remanded to the Defendant after some difficulty locating the administrative hearing record. (Tr. 416-21.) A new hearing was held before ALJ Thomas on April 12, 2000, and shortly thereafter, he issued an unfavorable decision denying benefits because Mr. Davis' history of alcohol dependence was a contributing factor material to the determination of disability. (Tr. 11-39, 49-121, 398, 401.) The Appeals Council denied review, making the ALJ's decision, the final decision of the Commissioner and both parties stipulated that the Court should re-open the case. (Tr. 5.) Mr. Davis filed the present action on June 27, 2001.

II. FACTS

A. Background

Mr. Davis was born on March 28, 1940, and is currently sixty-one years old. (Tr. 147.) He is divorced with one adult child and one teenager, has high school equivalent education and previously worked as a light delivery truck driver, appliance repair person, maintenance man and other general labor occupations. (Tr. 169, 428, 453.) The record indicates, and Mr. Davis readily admits to, a long-term alcohol-abuse problem. (Tr. 62-75, 274-96, 311, 356.)

The medical record reveals that Mr. Davis suffers from heart disease, other physical problems, chemical dependency issues, depression, mood disorder and other psychological problems. (Tr. 207-08, 236, 239-41, 274-96, 305-06, 341-42, 356-58, 449-52.) Mr. Davis' history includes multiple alcohol-related driving offenses and multiple chemical dependency treatment programs. (Id.) Following successful completion of his April 1997, chemical-dependency program, Mr. Davis suffered a relapse and was arrested for driving while intoxicated. (Tr. 15, 62-63.) Plaintiff testified that he has remained sober since April 1997. (Tr. 62, 75.)

Although Mr. Davis has not admitted that his drinking was the source of his depression and poor work history, the record reveals that following treatment and completion of a chemical dependency program, he has been competent and employable at the time of discharge. (Tr. 342-344.) Additionally, it is undisputed that Mr. Davis met the severity of listing 12.09 for substance addiction disorder. (Tr. 15.)

B. Medical Evidence

1. Physical Impairments

Mr. Davis has a history of coronary artery disease with smoking and experienced three heart attacks. in 1994. (Tr. 17.) He was initially treated with thrombolytic therapy, an angiogram and eventually more invasive surgery to repair the proximal circumflexed artery. (Id.) As noted earlier, Mr. Davis also suffers from numerous other physical ailments that are undisputed.

2. Mental Impairments

On January 22, 1997, Mr. Davis was hospitalized at the St. Cloud Veterans Administration Medical Center, after attempting suicide when his disability benefits were terminated. (Tr. 356-58.) During his stay at the hospital, Dr. Jonathan Uecker examined Mr. Davis and diagnosed him with alcohol dependence, alcohol induced mood disorder and alcohol withdrawal. (Tr. 356-58.) According to Dr. Uecker's report, Mr. Davis' social history was remarkable for chronic unemployment, which appeared to be secondary to his drinking. (Tr. 356.) Dr. Uecker also opined that if Mr. Davis continued to experience symptoms of depression and anxiety after three months of sobriety, anti-depressant treatment might be appropriate. (Tr. 358.) Upon discharge, Mr. Davis was prescribed Trazadone for anxiety and Ambien for sleeping, however, Dr. Uecker never placed any restrictions on Mr. Davis' ability to work or tolerate the stresses in the work place. (Tr. 357.)

On January 29, 1997, approximately seven days later, Mr. Davis was admitted for his sixth in-patient chemical dependency treatment program. (Tr. 275-76.) Dr. Mary Howard noted that Mr. Davis was alcohol dependent, depressed and anxious and referred him to Dr. W.G. Jordan for psychiatric evaluation. (Id.) Dr. Jordan evaluated Mr. Davis on January 30, 1997, and diagnosed substance abuse and depression and prescribed Trazadone. (Tr. 291.) At that time, Mr. Davis minimized the issue of alcohol and rather assigned the blame for his problems on his mood. (Id.) Dr. Jordan also reported that it was unclear whether the termination of Plaintiffs disability benefits payed a role in his problems. (Id.) Following the successful completion of his treatment program, Mr. Davis was discharged to a halfway house on February 27, 1997, and a follow up appointment with Dr. Jordan was arranged for April 9, 1997. (Tr. 341-42.) Mr. Davis' discharge report indicated that he was competent and employable at the time of discharge. (Tr. 342.)

Mr. Davis was referred to Dr. Marie May in March 1997, for another psychiatric evaluation. (Tr. 307-13.) Following an examination on March 11, 1997, Dr. May noted that Mr. Davis appeared anxious and his affect was extremely intense and somewhat pressured. (Tr. 312.) At the time, Mr. Davis indicated a cycling of mood and related to his alcoholism as a problem, however, he did give Dr. May a good history of his problems starting many years before alcohol was a part of his life. (Id.) Dr. May diagnosed an organic mood disorder versus bipolar rapid recycling and post traumatic stress disorder ("PTSD") and prescribed Tegretol for its mood stabilizing effects and Luvox for anxiety. (Id.) Dr. May gave Mr. Davis a global assessment functioning ("GAF") score of 55. (Id.) Despite the foregoing, Dr. May never placed any restrictions on Mr. Davis' ability to work or tolerate normal stresses in the work place.

A GAF score of 51-60 indicates "moderate symptoms . . . of moderate difficulty in social, occupational, or school functioning." See DIAGNOSTIC STATISTICS MANUAL OF MENTAL DISORDERS (DSM-IV), 32 (4th ed. 1994).

While still at the halfway house, Mr. Davis presented to Dr. David Bransford for yet another psychiatric consultation. (Tr. 305-306.) Following a ninety minute examination, during which Mr. Davis iterated his inability to maintain gainful employment and recited his social and medical history, Dr. Bransford diagnosed recurring major depressive episodes and alcohol abuse disorder, currently inactive within the structured environment of the halfway house. (Id.) Despite the lack of any formal testing and based on this one-time examination, Dr. Bransford opined that Mr. Davis was incapable of gainful employment and agreed that Mr. Davis' current medical regimen, prescribed by Dr. May, was appropriate. (Id.)

Mr. Davis left the halfway house in April 1997, but it is unclear whether he maintained his follow-up appointment with Dr. Jordan at the chemical dependency treatment facility. However, on June 3, 1997, Dr. May conversed with Mr. Davis via the telephone and noted that he reported being sober and, other than some anxiety, in a fairly stable mood. (Tr. 315.) After reiterating her previous diagnosis, Dr. May informed Mr. Davis that regular contact with a psychiatrist would improve his moods and functioning. (Tr. 315.) At that time, Dr. May imposed no restrictions on Mr. Davis' ability to work.

Sometime in May 1998, Mr. Davis was voluntarily admitted to the Minneapolis Veterans Administration Medical Center for increased depression and suicidal plan. (Tr. 18.) On May 13, 1998, he was admitted at the St. Cloud Veterans Administration Medical Center for chemical dependency treatment, but, upon arrival, he refused chemical dependency treatment, reported being sober for the last year and sought a psychiatric admission instead. (Tr. 19, 447.) Mr. Davis denied suicidal or homicidal ideation. (Id.) On admission, Dr. Shashi Prakash, a psychiatrist, diagnosed probable PTSD secondary to childhood trauma, moderate mixed-type organic mood disorder secondary to multiple head injuries and ruled out any personality disorder. (Tr. 449.) Dr. Prakash gave Mr. Davis a GAF score of 40, converted him to the dual diagnosis track, switched his medication to Depakote, BuSpar and Trazodone. (Id.) When Mr. Davis was discharged from the psychiatry ward, Dr. Prakash noted that he was fairly stable with improved mood, sleep and was tolerating his medications. (Tr. 453.) Despite the foregoing, Dr. Prakash never placed any restrictions on Mr. Davis' ability to work or tolerate the stresses in the work place.

A GAF score of 31-40 indicates "some impairment in reality testing or communication. OR major impairment in several areas, such as work or school, family relations, judgment, thinking or mood." See DIAGNOSTIC STATISTICS MANUAL OF MENTAL DISORDERS (DSM-IV), 32 (4th ed. 1994).

On June 3, 1998, Mr. Davis was transferred to the Hastings Veteran's Home for outpatient treatment. (Tr. 452.) At this point, the record is silent as to whether Mr. Davis sought or received any medical treatment until March, 2000. On March 8, 2000, Mr. Davis presented to Mr. John Herman, MA, RN, Clinical Specialist, for a psychiatric diagnostic assessment. (Tr. 433.) At that time, Mr. Davis was not seeing a psychiatrist and reported being sober since October, 1997. (Id.) After some brief conversation and before discussing his symptoms, Mr. Davis presented a form for completion requesting Medical Assistance. (Id.) Mr. Herman requested consultation with another Doctor to consider the form and Plaintiff continued to complain of significant depression and stress related to his crusade with the Social Security Administration and the termination of his disability benefits. (Id.) Mr. Herman's report indicates that Plaintiff appeared obsessed with obtaining disability benefits and endorsed virtually every symptom. (Id.) Mr. Herman diagnosed Mr. Davis with bi-polar disorder — depressed type, dysthymia and assessed a GAF score of 45-55. (Id.)

A GAF score of 41-50 indicates "serious symptoms . . . or any serious impairment in social, occupational, or school functioning . . . ."See DIAGNOSTIC STATISTICS MANUAL OF MENTAL DISORDERS (DSM-IV), 32 (4th ed. 1994).

Pamela Cook, licensed psychologist, began treating Mr. Davis in March 2000, and submitted a report of claimant's clinical interview following six sessions. (Tr. 429-30.) In this report, Ms. Cook noted that Mr. Davis failed to obtain consistent follow up care with a single mental health professional, follow recommendations or continue his prescribed medications. (Id.) She noted that his last documented assessment included invalid testing because Mr. Davis presented himself as more psychiatrically ill then he was. (Id.) Ms. Cook diagnosed borderline personality disorder, alcohol dependence, and a major depressive disorder. (Id.) She recommended that Mr. Davis abstain from alcohol, prescription pain medication and enroll in a behavior therapy program. (Id.) However, because he lacked psychological insight and motivation to change, Ms. Cook was not optimistic about his ability to complete such a program and opined that without such a program, he was incapable of tolerating the stress of employment for any consistent length of time. (Id.)

C. Plaintiff's Testimony

Mr. Davis testified at the hearing on April 12, 2000. (Tr. 60-129.) He testified that he had been sober since April 1997 and described a history of manic episodes involving extreme stress followed by quitting jobs and depression. (Tr. 64-65.) His last job was in March 1999, lasted for two months and ended under identical circumstances. (Tr. 84-84.) When asked whether he continued to experience alcohol related medical problems after sobriety, Mr. Davis replied that he did not. (Tr. 75-76.) Under examination by his representative, Mr. Davis indicated that stress and anxiety caused the manic episodes described earlier and his inability to remain at a particular position for a significant period of time has always been an issue in his adult life. (Tr. 93-103.)

D. Medical Expert's Testimony

Dr. Karen Butler testified as a neutral medical expert at the hearing. (Tr. 103-118.) Dr. Butler opined that while the record supported Mr. Davis' diagnosis of depression, personality disorder and alcohol abuse, his symptoms did not meet or equal the criteria for organic mood disorder, PTSD and bi-polar disorder. (Tr. 107-12.) She also testified that independent of alcohol dependence, Mr. Davis: (1) was slightly limited in his activities of daily living; (2) moderately limited, in maintaining social functioning; (3) often experienced deficiencies in concentration, persistence or pace; and (4) experiences one to two episodes of deterioration or de-compensation in work-like settings. (Id.) She also noted that there were some inconsistencies in the record pertaining to Plaintiff's sobriety, indicating that Plaintiff had previously reported being sober since October 1997; however, on March 27, 2000, it was recommended that he abstain from alcohol. (Tr. 110.) Dr. Butler concluded that while Mr. Davis had marked limitations in several areas of work-related functioning, he was able to perform routine and repetitive work involving low stress and only brief and superficial contact with the public, co-workers and supervisors. (Tr. 118.)

E. Vocational Expert's Testimony

The Vocational Expert ("VE"), Barbara Wilson-Jones, testified at the hearing. (Tr. 114.) The ALJ posed a hypothetical question which assumed an individual of Mr. Davis', age, education and vocational experience, background and who could perform light to medium work exertionally, but was limited to jobs involving only simple tasks and limited contact with the public and co-workers. (Tr. 119.) The hypothetical individual had additional limitations such as: (1) a decreased range of motion in the cervical spine with pain and is status post surgery there at the C-4, 6 level; (2) a bone spur removal in 1985 and 1986 with noted loss of strength in right arm as a result; (3) right elbow surgery — likely in a non-severe level at the current time; (4) numerous serious heart problems; (5) smoking; (6) symptoms of shortness of breath; (7) problems with his left foot with some decrease in motion; (8) depression or major depression recurrent; (9) a personality disorder; and (10) some alcohol dependency in the past, in remission by testimony since either April 1997 or October 1997. (Id.) Furthermore, this hypothetical person was taking medications, and

If he has limitations from those, he's really from a light to a medium level. Here he can lift up to approximately forty pounds or so on the left, up to twenty pounds, about half the ability of the right. His standing and walking is up to six hours per day. He would not be able to carry on stairs or ladders because of his right arm or do overhead work more than occasional basis with his right upper extremity. Because of his foot [he would be precluded from working on uncovered concrete floors.] With those restrictions, there are some mental impairments with restrictions. He would be precluded from working where drugs and alcohol are sold or served and readily available. He should have work that has lower stress with more routine repetitive tasks and brief and superficial contact with members of the public or co-workers.

(Tr. 120.) The ALJ then asked whether such a hypothetical person could perform any of Mr. Davis' previous work. (Id.) The VE testified that the hypothetical person could perform Mr. Davis' previous work as an appliance repairer because it is low stress, repetitive, semi-skilled and there were approximately 2,000 such jobs in Minnesota. (Id.) Upon further questioning by the ALJ, the VE indicated that the hypothetical person could also perform the job of a light delivery driver or courier. (Tr. 122.)

In response to questions from Mr. Davis' attorney, the VE opined that if Mr. Davis continued to experience the manic episodes of extreme stress followed by quitting jobs and depression, he would be unable to perform the work of a repairer or delivery driver. (Tr. 122-124.) The VE also agreed that since Mr. Davis did not have any driving privileges, the courier/light driver position was unavailable.

F. The ALJ's Decision

In determining whether or not Plaintiff was disabled, the ALJ followed the five-step sequential process outlined at 20 C.F.R. § 404.1520. At the first step in the process, the ALJ evaluated whether the claimant engaged in substantial gainful activity since the date of alleged onset of disability. (Tr. 15.) The ALJ considered Plaintiff's testimony that he: (1) was unsuccessfully retained by the VA; (2) tried making flag cases in 1998; (3) tried to perform apartment maintenance for two months in 1999; and concluded that Mr. Davis had not engaged in substantial gainful activity at any time relevant to this decision. (Id.)

At the second step in the sequential evaluation, the ALJ determined whether or not the claimant had a "severe" impairment, which is defined as an impairment which imposes more than a minimal effect on Mr. Davis' physical or mental ability to perform basic work-related activities. (Tr. 18-19; 20 C.F.R. § 404.1521.) The ALJ found that Plaintiff has the severe impairments of "status post three myocardial infractions in 1994, a history of smoking, intermittent chest pain with shortness of breath, status post C4-6 laminectomies in 1983 and 1985 with occasional neck and right arm pain and some loss of strength, depression, personality disorder, and substance addiction disorder, in remission since April, 1997 by report." (Tr. 15.)

After finding that Mr. Davis met the severity of Listing 12.09 for substance addiction disorder and his remaining impairment "severe," the ALJ determined that, pursuant to the Contract with America Advancement Act of 1996 P.L. No. 104-121, § 105, he could not find Mr. Davis disabled because of the alcohol dependency. (Tr. 16.) Specifically, the ALJ reviewed the medical evidence and concluded that although Mr. Davis' impairments were "severe," they were not attended with the specific clinical signs and diagnostic findings required to meet or equal the requirements set forth in the Listing of Impairments, Appendix 1 to Subpart P, 20 C.F.R. Part 404, independent of alcohol dependency. (Id.) In making this determination, the ALJ specifically considered all of Davis' mental and physical impairments both individually and in combination. (Id.) In determining Plaintiff's RFC, the ALJ considered the credibility of his subjective complaints and discounted allegations of inability to perform any work activity due to inconsistencies with the medical evidence, his actual functional abilities and the evidence as a whole. (Id.) In making his decision, the ALJ also considered the administrative findings of fact made by State agency medical physicians and other consultants. (Tr. 16-17.)

Having considered all of the factors up to that point in his analysis, the ALJ determined that Plaintiff retained the functional capacity for a wide range of light to medium work, or work which involves lifting and carrying no more than forty pounds on the left and twenty pounds on the right, standing and walking six hours of an eight hour day, sitting without limit, no work on uncovered concrete floors, no carrying on stairs or ladders and routine and repetitive work in a low stress, alcohol free environment. (Tr. 20.)

The ALJ accepted the VE's testimony and found that Plaintiff's past relevant work as a appliance repairer did not exceed his RFC independent of alcohol dependency. (Tr. 21.) Per 20 C.F.R. § 404.1535, the ALJ thus found that Plaintiff was "not disabled" independent of alcohol dependency. (Tr. 22.)

III. STANDARD OF REVIEW

Judicial review of the final decision of the Commissioner is restricted to a determination of whether the Secretary's findings are supported by substantial evidence. See Gavin v. Heckler, 811 F.2d 1195, 1197-99 (8th Cir. 1987); Taylor v. Bowen, 805 F.2d 329, 331 (8th Cir. 1986). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Richardson v. Perales, 402 U.S. 389, 401 (1971); 42 U.S.C. § 405(g). The Eighth Circuit has expanded upon this substantial evidence standard, holding that the Commissioner's decision must be based upon substantial evidence on the record as a whole. See Wilson v. Sullivan, 886 F.2d 172, 175 (8th Cir. 1989). This expanded standard requires the court to do more than search for the existence of substantial evidence which supports the Commissioner's findings. EL at 175. The substantiality of the evidence must take into account whatever is in the record that fairly detracts from its weight. See Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989) (citing Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488 (1951)). However, the Court "may not reverse merely because substantial evidence would have supported an opposite decision." Gaddis v. Chater, 76 F.3d 893, 895 (8th Cir. 1996) (internal citations omitted).

IV. ISSUES ON APPEAL

1. Did the ALJ improperly assess Mr. Davis' credibility?

2. Did the ALJ err in refusing to give substantial weight to the treating physicians' opinions?

V. CONCLUSIONS OF LAW

The Contract with America Advancement Act of 1996, Pub.L. No. 104-121, 110 Stat. 847 amended the Social Security Act to eliminate benefits for disabilities due to alcoholism and/or drug abuse. EL § 105, 110 Stat. at 852-55. The regulations implementing these changes are found at 20 C.F.R. § 404.1535. Section 404.1535(a) recites a "contributing material factor" standard. That is, the Administration is to determine whether an applicant's "drug addiction or alcoholism is a contributing factor material to the determination of disability." Id. Subparagraph (b) states that the "key factor . . . is whether we would still find you disabled if you stopped using drugs or alcohol." Id. The regulation spells out a test that focuses on what "physical and mental limitations . . . would remain if you stopped using drugs or alcohol and then determine whether any or all of your remaining limitations would be disabling." § 404.1 535(b)(2). Thus, subparagraph (a) focuses primarily on causation while subparagraph (b) focuses on the remaining effects, independent of cause. Thus, if substantial evidence supports a conclusion that Mr. Davis' impairments occurred only when he could not control his drinking and remained non-severe while he was sober, the regulations support a finding of "no-disability."

Mr. Davis alleges that a proper application of 20 C.F.R. § 404.1535 mandates a finding of disability. In moving for summary judgment, Plaintiff alleges that substantial evidence on the record as a whole does not support the ALJ's decision for the following reasons: (1) the ALJ improperly evaluated Mr. Davis' credibility; and (2) the ALJ failed to give substantial weight to the treating physicians' opinions.

1. The ALJ Did Not Err by Failing to Properly Assess Plaintiff's Credibility

Mr. Davis appears to allege that the ALJ failed to consider his subjective allegations regarding his limitations stemming from his mental illness in making an RFC determination. Specifically, Mr. Davis posits that the ALJ failed to consider "feeling[s] of exploding in the head" which precluded any substantial gainful employment. See Pl.'s Mem. in Supp. of Mot. for Summ. J. at 14-15. Plaintiff failed to cite any psychiatrist's or psychologist's opinion supporting such a functional limitation, and said limitations appear to be based solely on Plaintiff's testimony.

The ALJ evaluated Plaintiff's subjective complaints of pain in accordance with the requirements of 20 C.F.R. § 404.1529; Social Security Ruling 96-7p and Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). In the Eighth Circuit, subjective complaints of pain are evaluated in accordance with the requirements of Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). While not referring specifically toPolaski, the ALJ took careful note of the Rulings upon which Polaski in turn relies, and conducted a careful analysis in compliance with those guidelines before issuing heis decision as to Plaintiff's credibility. InPolaski, the Eighth Circuit demanded that:

[the ALJ] give full consideration to all of the evidence relating to subjective complaints, including the claimant's prior work record, and observations by third parties and treating and examining physicians relating to such matters as:

1. the claimant's daily activities;

2. the duration, frequency and intensity of pain;

3. precipitating and aggravating factors;

4. dosage, effectiveness and side effects of medication;

5. functional restrictions.

Id. In the instant case, the ALJ considered:

(i) the claimant's daily activities;

(ii) the location, duration, frequency, and intensity of any pain and other symptoms;

(iii) precipitating and aggravating factors;

(iv) type, dosage, effectiveness and adverse side effects of any pain medications;
(v) treatment, other than medication, used for relief of pain or other symptoms;
(vi) other measures used to relieve pain or other symptoms; and
(vii) any other factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms.

These factors were all taken directly from 20 C.F.R. § 404.1529 and Social Security Ruling 96-7p. While the two listings are functionally identical, the greater detail called for in the second listing is, if anything, more thorough than is required by Polaski. Accordingly, the ALJ did not err in failing to adhere to Polaski, and the focus of the inquiry thus shifts to whether the ALJ properly applied the criteria to the evidence of record. In making this determination, the Court bears in mind that the ALJ's credibility finding is entitled to considerable deference. See, e.g., Johnson v. Chater, 87 F.3d 1015, 1018 (8th Cir. 1996) (court does not substitute its opinion of the plaintiffs credibility for that of the ALJ). "Where there are inconsistencies in the evidence, the ALJ may discount subjective complaints." Pena v. Chater, 76 F.3d 906, 908 (8th Cir. 1996). Inconsistencies between subjective complaints of pain and daily living patterns may also diminish credibility. Id. Here, while the ALJ's Polaski analysis is not a model of clarity, it does meet the requirements established in that decision.

The transcript reveals that the ALJ elicited testimony from Plaintiff on the five Polaski subjects, applied it to his analysis and concluded that the Plaintiff was not credible. Specifically, the ALJ indicated that the Plaintiff's ability to perform a wide range of activities, significant inconsistencies in the record as a whole, the overall hearing record and objective medical evidence precluded him from finding that Plaintiff was incapable of all work activity independent of his alcohol dependency.

Furthermore, the medical findings directly contradicted the Plaintiff's allegations of inability to work, especially since the majority of physicians, including his treating physicians, did not conclude that he was unable to work. See Bolton v. Bowen, 814 F.2d 536, 538 (8th Cir. 1987) (no medical evidence to support assertions of subjective pain discounts credibility of assertions of disabling pain). In fact, Dr. Bransford's conclusion that Mr. Davis was incapable of any work activity was based on one time consultative examination. Moreover, Dr. Cook's similar conclusion provided that he would be able to work if he took a behavior class. Furthermore, Dr. Cook herself noted that Mr. Davis failed to obtain consistent follow up care with a single mental health professional, follow recommendations or continue his prescribed medications and his last documented assessment included invalid testing because Mr. Davis presented himself as more psychiatrically ill than he was.

Additionally, the Plaintiff testified that he lived independently, performed all household chores and engage in daily activities. (Tr. 36.) Finally, the VE testified that a person having Mr. Davis limitations as supported by the record evidence would be able to work. Taken together, these facts comprise far more than the substantial evidence on the record as a whole that this Court needs to sustain the ALJ's decision to discount Mr. Davis' testimony about his inability to work. See Browning v. Sullivan, 958 F.2d 817, 821 (8th Cir. 1992) (noting that the Eighth Circuit will not disturb the decision of an ALJ who seriously considers, but for good reasons explicitly discredits, a claimant's testimony of disabling pain).

Accordingly, this Court finds that substantial evidence on the record as a whole supports the ALJ's decision as to Plaintiff's credibility regarding his inability to work and the ALJ's decision in this regard must be affirmed.

2. The ALJ Did Not Err by Refusing to Give Substantial Weight to the Treating Physicians' Opinions

Mr. Davis also argues that the ALJ failed to give substantial weight to the opinion of his

treating physicians, Drs. Bransford, Cook and Prakash. Specifically, Mr. Davis contends that Dr. Prakash's GM score was entitled to controlling weight and was supported by Drs. Cook and Bransford's opinions.

This Court rejects any allegation that Dr. Bransford's opinion was entitled to controlling weight because it was based on a one-time consultative examination and as such, was not based on the extended series of treatments needed for treating physician status. See 20 C.F.R. § 416.927(d)(2); Thomas v. Sullivan, 928 F.2d 255, 259 n. 3 (8th Cir. 1991.) Since Dr. Bransford was not a treating physician, his opinion was not entitled to controlling weight. See SSR 96-2p.

This Court believes that Plaintiff's challenges are without merit because although the treating physicians' opinions are entitled to significant weight, they do not automatically control as the ALJ must evaluate the record as a whole. See Frankl v. Shalala, 47 F.3d 935, 938 (8th Cir. 1995). A treating physician's opinion is entitled to great weight if supported by clinical findings and diagnostic data consistent with the evidence. See Davis v. Shalala, 31 F.3d 753, 756 (8th Cir. 1994); Pena v. Chater, 76 F.3d 906, 908 (8th Cir. 1996). In order to discredit the opinion of a treating physician, the ALJ must consider all the factors provided in 20 C.F.R. § 416.927. These factors are: (1) the length of the treatment relationship; (2) the nature and extent of the treatment relationship; (3) the quantity of evidence in support of the opinion; (4) the consistency of the opinion with the record as a whole; and (5) whether the treating physician is also a specialist.

While both Drs. Prakash and Cook could be considered treating physicians, Dr. Prakash's GAF score was contradicted by a significant portion of the evidence of record. Specifically, the ALJ considered the medical evidence provided by each treating physician and refused to grant significant weight to Dr. Prakash's GAF assessment because his conclusions that Plaintiff was barely functioning were rendered after a brief diagnostic assessment and belied by other physicians, including treating physicians, objective medical examinations and reports. In fact, despite his GAF assessment, Dr. Prakash himself never opined that Mr. Davis was precluded from all work activity. Given Mr. Davis' own testimony regarding his daily activities and previous employment, this Court believes that the ALJ's refusal to grant significant weight to Dr. Prakash's assessment was supported by substantial evidence. See Woolf v. Shalala, 3 F.3d 1210 (8th Cir. 1993) (holding that the ALJ is not bound by the treating physician's opinion where the ALJ has identified good reason for not accepting the treating physician's opinion, such as its not being supported by any detailed, clinical or diagnostic evidence).

Moreover, Dr. Cook's conclusion did not support Dr. Prakash's GM score since she concluded that Plaintiff would be able to work if he took a behavior modification class and noted that Mr. Davis failed to obtain consistent follow up care with a single mental health professional, follow recommendations or continue his prescribed medications and his last documented assessment included invalid testing because Mr. Davis presented himself as more psychiatrically ill then he was. In light of the foregoing, these facts comprise far more than the substantial evidence on the record as a whole that this Court needs to sustain the ALJ's decision to refuse to grant controlling weight to Dr. Prakash's GAF assessment and Dr. Cook's opinion. See Davis v. Apfel, 239 F.3d 962, 967-68 (8th Cir. 2001) (ALJ properly based decision on state agency medical consultant's opinion, where it was well supported and other treating physicians opinions were inconsistent and unreliable).

VI. RECOMMENDATION

Based on the files, records and proceedings herein, IT IS HEREBY RECOMMENDED that:

1. Plaintiffs Motion for Summary Judgment [#16] be DENIED;

2. Defendant's Motion for Summary Judgment [#23] be GRANTED.

Pursuant to Local Rule 72.1(c)(2), any party may object to this Report and Recommendation by filing with the Clerk of Court and serving on all parties, within ten days of this Report and Recommendation, written objections which specifically identify the portions of the proposed findings, recommendations or report to which objection is being made, and a brief in support thereof A party may respond to the objecting party's brief within ten days after service thereof All briefs filed under this rule shall be limited to ten pages. A judge shall make a de novo determination of those portions to which objection is made.

This Report and Recommendation does not constitute an order or judgment of the District Court, and it is therefore not appealable to the Circuit Court of Appeals.