Graham v. Berryhill
Filing
18
ORDER denying 13 Motion for Summary Judgment and granting 15 Motion for Summary Judgment. (Written Opinion) Signed by Magistrate Judge Tony N. Leung on 3/27/2019. (EB)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Rosalind J. G.,
Case No. 18-cv-82 (TNL)
Plaintiff,
v.
ORDER
Nancy Berryhill,
Acting Commissioner of the Social
Security Administration,
Defendant.
Mac Schneider, Schneider Schneider & Schneider, 815 Third Avenue South, Fargo,
ND 58103 (for Plaintiff); and
Bahram Samie, Assistant United States Attorney, United States Attorney’s Office, 300
South Fourth Street, Suite 600, Minneapolis, MN 55415; and Michael Moss, Special
Assistant United States Attorney, Social Security Administration, Office of the General
Counsel, Region VI, 1301 Young Street, Suite A702, Dallas, TX 75202 (for
Defendant).
I. INTRODUCTION
Plaintiff Rosalind J. G. brings the present case, contesting Defendant Commissioner
of Social Security’s denial of her applications for disability insurance benefits (“DIB”)
under Title II of the Social Security Act, 42 U.S.C. § 401 et seq., and supplemental security
income (“SSI”) under Title XVI of the same, 42 U.S.C. § 1381 et seq. The parties have
consented to a final judgment from the undersigned United States Magistrate Judge in
accordance with 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, and D. Minn. LR 72.1(c).
1
This matter is before the Court on the parties’ cross-motions for summary judgment.
(ECF Nos. 13, 15.) Being duly advised of all the files, records, and proceedings herein, IT
IS HEREBY ORDERED that Plaintiff’s motion for summary judgment (ECF No. 13) is
DENIED and the Commissioner’s motion for summary judgment (ECF No. 15) is
GRANTED.
II. PROCEDURAL HISTORY
Plaintiff applied for DIB and SSI asserting that she has been disabled since
September 2014 due to “[s]pinal cord compression with distortion and displacement,”
“arthritis of cervical spine c5-c6,” “2 large broad based disc protrusions,” “major
depression,” “anxiety,” “bipolar disorder,” “concentration,” “moderate-severe disc space
narrowing at c5-c6,” “possible schizophrenia,” and “L4-L5 disc space narrowing and
dif[f]use disc signal loss.” (Tr. 12, 65-66, 75-76; see Tr. 87-88, 98-99.) Plaintiff’s
applications were denied initially and again upon reconsideration. (Tr. 12, 74, 84-86, 97,
108-10.) Plaintiff appealed the reconsideration of her DIB and SSI determinations by
requesting a hearing before an administrative law judge (“ALJ”). (Tr. 12, 129-30.)
The ALJ held a hearing in August 2016. (Tr. 12, 32, 34.) After receiving an
unfavorable decision from the ALJ, Plaintiff requested review from the Appeals Council,
which denied her request for review. (Tr. 1-3, 10-31, 186.) Plaintiff then filed the instant
action, challenging the ALJ’s decision. (Compl., ECF No. 1.) The parties have filed cross
motions for summary judgment. (ECF Nos. 13, 15.) This matter is now fully briefed and
ready for a determination on the papers.
2
III. MEDICAL RECORDS
Plaintiff has a history of chronic neck pain. (Tr. 403.) At an unrelated medical
appointment in June 2014, it was noted that “[t]here has been a problem with chronic pain
syndrome as well.” (Tr. 396.) At the same time, it was also noted that “[c]urrently, she is
really doing quite well indeed.” (Tr. 396.)
A. Records Related to Chronic Pain
1. 2014
In early September 2014, Plaintiff was seen by Pankaj Timsina, MD, for neck pain,
among other things. (Tr. 394.) Upon examination, Plaintiff’s neck was supple but she had
tenderness “on her right neck and across her trapezius.” (Tr. 394.) Dr. Timsina noted that
this was “a chronic issue” for Plaintiff and that she had “been taking tramadol” 1 for it. (Tr.
394.) Dr. Timsina ordered x-rays of Plaintiff’s cervical spine, prescribed Flexeril 2, and
referred Plaintiff “to physical therapy for myofascial release.” (Tr. 394; see Tr. 424-25.)
Approximately two weeks later, Plaintiff was seen for an unrelated condition by
Monika Pokharel, MD, in internal medicine. (Tr. 392.) When “asked if she [wa]s having
any neck pain or any weakness in any of the arms or any shortness of breath,” Plaintiff
said “no,” but also stated that “[s]he has been having, since childhood, the neck pain on
and off and she has been used to this pain and does not do anything” for it. (Tr. 392.)
1
“Tramadol is used to relieve moderate to moderately severe pain. . . . Tramadol is in a class of medications called
opiate (narcotic) analgesics. It works by changing the way the brain and nervous system respond to pain.”
Tramadol, MedlinePlus, U.S. Nat’l Library of Medicine, https://medlineplus.gov/druginfo/meds/a695011.html (last
visited Mar. 4, 2019).
2
Flexeril is a brand name for cyclobenzaprine, a medication “used with rest, physical therapy, and other measures to
relax muscles and relieve pain and discomfort caused by strains, sprains, and other muscle injuries.”
Cyclobenzaprine, MedlinePlus, U.S. Nat’l Library of Medicine, https://medlineplus.gov/druginfo/meds/a682514.
html (last visited Mar. 4, 2019).
3
Plaintiff had full strength in all of her extremities. (Tr. 392.) Later, when Dr. Pokharel
explained that an MRI of her neck showed “advanced arthritis and like[ly] cord
impingement at C5-C6,” Plaintiff requested something for the pain, including narcotic
medications. (Tr. 392; see Tr. 420-22.) Dr. Pokharel referred Plaintiff to neurosurgery and
discussed physical therapy “in detail.” (Tr. 392-93.) Plaintiff was also given a limited
supply of medication, “30 tablets” to be “use[d] on an as-needed basis.” 3 (Tr. 393.)
The following day, Plaintiff had a consultation with Abdul A. Baker, MD, in
neurosurgery. (Tr. 390, 353, 457.) Plaintiff presented
with over a 20-year history of neck pain that has progressively
worsened, especially with her job as an embroiderer that is a
repetitive job with her neck in a flexed posture, that has
resulted in multiple episodes of bilateral upper extremity, right
worse than left weakness, numbness and tingling, with
episodes of dropping objects in the past.
(Tr. 391; accord Tr. 353, 457.) Plaintiff reported “that medicines like Aleve and tramadol,
Flexeril help her symptoms, but repetitive activity seems to worsen her symptoms.” (Tr.
391; accord Tr. 353, 457.) Plaintiff had not tried physical therapy or epidural steroid
injections. (Tr. 391, 353, 457.)
Dr. Baker noted that an “MRI of the cervical spine shows spinal cord compression
at C5-C6 with neuroforaminal stenosis at that level, and also neuroforaminal stenosis at
C6-C7 with no evidence of spinal cord compression at that site . . . .” (Tr. 391; accord Tr.
353, 457; see Tr. 420-22; see also Tr. 658-661.) Plaintiff also had “other multilevel
degenerative changes, but primarily the cord compression is clearly seen at C5-C6 with no
3
It is not clear from office note what medication was prescribed.
4
evidence of intrinsic cord signal change.” (Tr. 391; accord Tr. 353, 457; see Tr. 420-22.)
There was “no clear evidence of motor or sensory abnormality on physical examination,
and no evidence of myelopathy.” (Tr. 391; accord Tr. 353, 457.) Dr. Baker recommended
that Plaintiff undergo physical therapy and an epidural steroid injection. (Tr. 391, 353,
457.)
The day after she met with Dr. Baker, Plaintiff returned to Dr. Pokharel to discuss
the results of her neck MRI. (Tr. 386.) Dr. Pokharel noted that Plaintiff did “not have any
weakness in any parts of the body”; “denie[d] any bowl or bladder problems”; and “review
of systems [was] negative for all other systems.” (Tr. 386.) Plaintiff asked if Dr. Pokharel
can “provide her disability.” (Tr. 386.) Dr. Pokharel discussed with Plaintiff that she
would need to bring in certain forms, but offered to provide her with a letter “that as per
the request of the patient that she is doing physical therapy and she is the main person of
the house to provide food to 2 kids and herself so provide something saying that she would
not be able to go to work every day,” and that “she would be able to work only less hours
a day.” (Tr. 386.) Plaintiff responded “that she did not know how that works and she
wants money . . . for every hour that she is not working also, and she wants to work some
hours, not full hours like 40 hours a week.” (Tr. 386.)
The same day, Plaintiff began physical therapy. (Tr. 388.) During her initial visit,
Plaintiff reported “a history of neck pain over the last 3 to 4 years with progressive
worsening.” (Tr. 388.) Plaintiff “note[d] some right upper extremity weakness more
recently, but also note[d a] history of right epicondylitis several years ago, which improved
following episodes of therapy.” (Tr. 388.) Plaintiff’s “neck pain [wa]s worse with stress,
5
sitting . . . [for more than 30 to 60 minutes], standing for prolonged periods, lifting/carrying,
and with reaching higher and lower.” (Tr. 388.) Plaintiff described her pain “as tight and
note[d] that it feels like her neck is locking up.” (Tr. 388.) Plaintiff’s pain was “better
with heat and medications.” (Tr. 388.)
Upon examination, Plaintiff had “decreased cervical range of motion, decreased
upper extremity strength and poor posture.” (Tr. 389.) Plaintiff was “noted to guard neck
upon assessment . . . , with limited active range of motion with mobility, along with guarded
posture.” (Tr. 389.)
Three days later, Plaintiff met with Shivan Kulasingham, MD, in internal medicine,
wanting to discuss the status of the x-rays ordered by Dr. Timsina. (Tr. 383.) Plaintiff was
also “not happy” following her appointment with Dr. Pokharel.
(Tr. 383.)
Dr.
Kulasingham noted that Plaintiff was currently undergoing physical therapy. (Tr. 384.)
Dr. Kulasingham recommended getting “an opinion from physical medicine rehab to see
whether they recommend doing an EMG to see if there is any upper extremity abnormality
seen on [the] EMG.” (Tr. 384.) Dr. Kulasingham also refilled Plaintiff’s tramadol
prescription, had “her sign a pain contract,” and “filled out FMLA forms so that she can go
to physical therapy and her physical medicine appointment.” (Tr. 385.)
At her physical therapy appointment the same day, Plaintiff reported that she was
“feeling better today,” and that her medications were helping with her pain and also helping
her relax. (Tr. 384.) Plaintiff rated her pain at a 6 out of 10. (Tr. 385.) The therapist noted
that Plaintiff had “decreased pain and tightness” at the end of the session and demonstrated
improved movement. (Tr. 385.) Plaintiff also had “decreased guarding and tightness.”
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(Tr. 385.) Similar observations were made during Plaintiff’s next two sessions. (Tr. 38182.) During one session, Plaintiff reported that “she feels that it has been more difficult to
thread the needle with her right hand and has had to grip harder so she does not drop the
thread.” (Tr. 382.)
In mid-October, Plaintiff had a cervical epidural steroid injection to address her neck
pain. (Tr. 377.) Plaintiff’s “[c]ervical spine exam [wa]s positive only for some relatively
mild paraspinal muscle tenderness on the right side more so than left in the lower cervical
region.”
(Tr. 377.)
In preparation for the injection, “Chronic pain syndrome
(10/03/2014)” was listed in Plaintiff’s past medical history. (Tr. 379.)
That same day, after the injection, Plaintiff returned to Dr. Kulasingham. (Tr. 376.)
Dr. Kulasingham noted:
I have seen her once for back pain. She has several providers
here already, including Dr. Timsina and Dr. Pokh[a]rel, and
she has seen Dr. Baker in neurosurgery. When I saw her last
week I said that if we were going to restrict her work activity
or anything I would like at least a reconsult from Physical
Medicine, but she returns after just two therapy treatments
saying now her low back hurts. She is walking different. She
has been using Flexeril at night and using a heating pad. She
found that to be helpful, but does not think she can go back to
work today. Reviewing her case, I will give her off for 4 days
until Friday. I am still awaiting physical med consultation.
(Tr. 376.)
Approximately one week later, Plaintiff followed up with Dr. Baker. (Tr. 374, 351,
455.) Dr. Baker noted that Plaintiff had some weakness in her left upper extremity. (Tr.
375 (“Bilateral upper extremity strength is 5/5 with the exception of left wrist extensor and
bilateral triceps were 4+/5.”), 351 (same), 455 (same).) Dr. Baker ordered an MRI of
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Plaintiff’s lumbar spine, noting afterwards “we can discuss specifics of the treatment of the
spinal cord compression, which will probably be 2 level anterior cervical discectomy and
fusion at C5-C6, C6-C7.” (Tr. 375; accord Tr. 351, 455; see also Tr. 658-62.)
The same day, Plaintiff also saw Dr. Timsina. (Tr. 373.) Plaintiff reported that she
“has not been able to work at all” and has “been going to Workers Comp.” (Tr. 373.)
Plaintiff was also “wondering about restrictions.” (Tr. 373.) Plaintiff had new complaints
of headaches and back pain as well as “some numbness and tingling in both arms and also
in her legs.” (Tr. 373.) Plaintiff had “tenderness over the posterior neck muscles.” (Tr.
374.) Plaintiff’s mood and affect was “very anxious.” (Tr. 374.)
Dr. Timsina noted that Plaintiff “has already seen Dr. Baker twice, and he has
discussed with her about the plan that will include medications and shots, and if not
surgery, which he would not consider right away.” (Tr. 374.) Dr. Timsina prescribe
gabapentin 4 and “pulse therapy.”
(Tr. 374.)
Dr. Timsina theorized that Plaintiff’s
headaches and back pain were “from tenderness of her neck muscles.” (Tr. 374.) Dr.
Timsina provided “written restrictions for not working for 2 weeks until she gets her MRI
and more results.” (Tr. 374.)
During her physical therapy appointment a couple of days later, Plaintiff reported
having more headaches and numbness in her left arm following the injection. (Tr. 372.)
Plaintiff’s back also “went out.” (Tr. 372.) Plaintiff also reported that “the [g]abapentin
has helped a lot . . . [and she] is no longer symptomatic, notes decreased pain, headaches,
4
Gabapentin is used to treat, among other things, “the pain of postherpetic neuralgia ( . . . the burning, stabbing pain
or aches that may last for months or years after an attack of shingles).” Gabapentin, MedlinePlus, U.S. Nat’l
Library of Medicine, https://medlineplus.gov/druginfo/meds/a694007 html (last visited Mar. 4, 2019).
8
stiffness, and denies any numbness.” (Tr. 372.) Plaintiff “note[d] a 40% improvement
overall with neck pain.” (Tr. 372.)
Plaintiff continued to report headaches during her next three sessions, but also noted
improvement during the latter two sessions. (Tr. 368, 370-71, 517-18.) Plaintiff’s neck
pain was noted to be improving during each session. (Tr. 368, 370-71, 517-18.) Plaintiff
did have some lower back pain. (Tr. 368, 370, 517.) Plaintiff reported that she was “taking
it easy at home beyond the essential tasks that she needs to complete to avoid aggravation.”
(Tr. 371; accord Tr. 370, 368, 517.)
Plaintiff reported being able to wash dishes, cook,
and do laundry “without aggravation of pain,” but “[a]void[ed] heavy lifting including
laundry and groceries.” (Tr. 369; accord Tr. 517.) The therapist “[c]ontinue[d] to note
tension along [Plaintiff’s] right cervical musculature.” (Tr. 371; accord Tr. 369-70, 51718.)
At the beginning of November, Plaintiff had a consultation with Bangalore
Vijayalakshmi, MD, in physical medicine. (Tr. 362, 344, 486.) Plaintiff reported that her
neck “symptoms have gotten progressively worse” over the last five years. (Tr. 363;
accord Tr. 345, 487.) Plaintiff’s work as an embroiderer “involves repetitive position of
her neck in flexion,” and, as a result of this repetitive action, she has had “progressively
worsening neck pain, along with bilateral upper limb symptoms of pain, paresthesias,
weakness, and tingling numbness.” (Tr. 363; accord Tr. 345, 487; see Tr. 348, 366, 490.)
Plaintiff “report[ed] constant aching discomfort in her posterior neck, which she rate[d] as
6 to 7 out of 10.” (Tr. 363; accord Tr. 345, 487.) Plaintiff’s symptoms were “[a]ggravated
by standing, sitting too long, lifting, [and] repetitively looking down . . . .” (Tr. 363; accord
9
Tr. 345, 487.) They improved with “rest, medication, [and] massage.” (Tr. 363; accord
Tr. 345, 487.) Among other medical conditions, Dr. Vijayalakshmi noted a history of
“[c]hronic neck pain.” (Tr. 365; accord Tr. 347, 488.) Dr. Vijayalakshmi also noted that
Plaintiff was pursuing a workers’ compensation claim. (Tr. 344-45, 349-50, 362-63, 367,
486-87, 491-92.)
During the physical examination, Dr. Vijayalakshmi observed that Plaintiff had
“functional strength in [her] bilateral upper limbs, with the exception of subtle collapsing
weakness in [the] bilateral deltoids, 4+ to 5-/5.” (Tr. 366; accord Tr. 348, 490.) Plaintiff’s
gait was normal. (Tr. 348, 366, 490.) Plaintiff’s posture was “forward head positioning”
with “[r]ounded, protracted shoulder girdles.” (Tr. 366; accord Tr. 348, 490.) Plaintiff
was “tender to palpation in [her] bilateral upper trapezius, splenius cervicis, [and] splenius
capitis”; in her “bilateral SI joints, iliolumbar ligaments, [and] lumbar paraspinal muscles”;
and “over [her] cervical paraspinal muscles.” (Tr. 366; accord Tr. 348, 490.) Range of
motion of Plaintiff’s cervical spine “cause[d] discomfort in forward bending, backward
bending, [and] side-to-side bending.” (Tr. 366; accord Tr. 348, 490.) Range of motion in
her thoracolumbar spine similarly “cause[d] discomfort in forward bending, [and]
backward bending.” (Tr. 366; accord Tr. 348, 490.) Dr. Vijayalakshmi also noted that
Plaintiff had “[m]usculotendinous imbalances – tight, overactive, restricted in upper
trapezius, sternocleidomastoid, levator scapulae, scalenes, [and] pectoral girdles,” as well
as “[p]seudoparetic, inhibited, and deconditioned in deep cervical flexors and rhomboids.”
(Tr. 366; accord Tr. 348, 490.)
10
Among other things, Dr. Vijayalakshmi diagnosed Plaintiff with “Cervical cord
compression with neural foraminal stenosis at C5-C6 and cervical radiculopathy”;
“Myofascial pain and dysfunction syndrome”; “SI joint dysfunction”; “Cervicothoracic
musculoligamentous sprain/strain”; and “Lumbosacral musculoligamentous sprain/strain.”
(Tr. 367.) Dr. Vijayalakshmi recommended that Plaintiff remain “off work until she sees
neurosurgery.” (Tr. 368; accord Tr. 350, 492.)
A couple of days later, Plaintiff reported during physical therapy that she felt her
headaches and range of motion in her neck were better overall, but she continued to
experience neck stiffness. (Tr. 361, 515.) Plaintiff “denie[d] any numbness or tingling.”
(Tr. 361; accord Tr. 515.) Plaintiff continued to have “tension along [her] right cervical
musculature, but [it was] decreased from previous sessions.” (Tr. 361; accord Tr. 515.)
Plaintiff followed up with Dr. Timsina around the middle of November to discuss
the results of a lumbar MRI. (Tr. 360; see Tr. 412-16, 529-32, 512-13.) The lumbar MRI
showed “mild disk bulging,” for which Dr. Timsina did not feel surgery was necessary.
(Tr. 360; accord Tr. 512, see Tr. 412-16, 529-32.) Dr. Timsina encouraged Plaintiff to
continue seeing Dr. Baker with regards to the “significant arthritis with disk disease” in her
neck. (Tr. 360; accord Tr. 512-13.)
Towards the end of November, Plaintiff met with Crystal Knutson, PA-C, in
neurosurgery primarily to discuss questions regarding surgery on her neck. (Tr. 453, 484.)
Plaintiff “continue[d] to experience severe neck pain, [and] right greater than left upper
extremity pain associated with numbness and tingling in both arms, primarily into the 4th
and 5th digits.” (Tr. 453; accord Tr. 484.) Plaintiff reported that physical therapy, traction,
11
and an epidural steroid injection did not help. (Tr. 453, 484.) Plaintiff rated her neck pain
at a 7 out of 10. (Tr. 453, 484.)
Upon examination, Plaintiff’s “[b]ilateral upper extremity strength [wa]s 5/5 with
the exception of the left wrist extensor and bilateral triceps 4+/5.” (Tr. 453-54; accord Tr.
484.) Knutson listed Plaintiff’s diagnoses as “C5-C6 and C6-C7 cervical spondylosis with
cord compression and upper extremity radiculopathy, refractory to conservative
measures,” and “[l]umbar degenerative disk disease.” (Tr. 454; accord Tr. 485.) With
regards to Plaintiff’s lumbar spine, Plaintiff “ha[d] no neurologic deficit and [her] pain
[wa]s not consistent with L4-L5 degenerative disk disease.” (Tr. 454; accord Tr. 485.)
Knutson noted that Plaintiff wanted to proceed with cervical spine surgery with Dr. Baker.
(Tr. 454, 485; see Tr. 450, 481.)
2. 2015
In mid-January 2015, Plaintiff underwent an anterior cervical discectomy and fusion
surgery with Dr. Baker to address C5-C6 and C6-C7 cervical spondylosis with cord
compression and radiculopathy. (Tr. 446, 477; see Tr. 442-44, 473-75.) Following the
surgery, Plaintiff’s arm pain improved. (Tr. 438, 469.) The pain in Plaintiff’s neck
“changed in character and [she] described it as surgical pain.” (Tr. 438; accord Tr. 469.)
Plaintiff had full strength, and was discharged the following day. (Tr. 436, 438, 469, 467.)
Plaintiff followed up with Knutson approximately one month after her surgery. (Tr.
463.) Plaintiff reported “significant improvement in her neck pain and headaches” as well
as “in her arm symptoms.” (Tr. 463.) Plaintiff “no longer ha[d] arm pain, numbness, or
tingling,” and “[h]er arms fe[lt] lighter and stronger.” (Tr. 463.) Knutson noted that
12
Plaintiff’s incision had “healed well” and she was “able to stand and walk with normal
posture and stride.” (Tr. 463.) Plaintiff had full strength and her “[s]ensation [wa]s grossly
intact.” (Tr. 463.) Knutson described Plaintiff as having “complete resolution of neck
pain, headaches, and upper extremity symptoms.” (Tr. 463.)
Approximately one month later, in the middle of March, Plaintiff saw Dr. Timsina
for continued complaints of neck pain. (Tr. 503.) Plaintiff’s pain was “worse on a cold,
gloomy day.”
(Tr. 503.)
Plaintiff was “taking tramadol, oxycodone[5], and also
hydrocodone[6].” (Tr. 503.) Plaintiff took oxycodone when her pain was more severe and
hydrocodone when her pain was mild. (Tr. 503.) Plaintiff reported having “a hard time
getting up from the chair when she wakes up in the morning and this makes her pain
worse.” (Tr. 503.) Plaintiff’s headaches were gone along with the pressure on the side of
her neck. (Tr. 503.) There was “[n]o numbness or tingling.” (Tr. 503.)
Dr. Timsina noted that Plaintiff was “in mild distress.” (Tr. 503.) Dr. Timsina felt
that Plaintiff’s pain was “coming from muscle spasm and muscle tension.” (Tr. 503.) Dr.
Timsina had “an extensive talk with [Plaintiff] regarding cutting back on her medications.”
(Tr. 503.) Dr. Timsina directed Plaintiff to follow up with neurosurgery regarding her
5
“Oxycodone is used to relieve moderate to severe pain. . . . Oxycodone is in a class of medications called opiate
(narcotic) analgesics. It works by changing the way the brain and nervous system respond to pain.” Oxycodone,
MedlinePlus, U.S. Nat’l Library of Medicine, https://medlineplus.gov/druginfo/meds/a682132 html (last visited
Mar. 4, 2019).
6
“Hydrocodone is used to relieve severe pain. Hydrocodone is only used to treat people who are expected to need
medication to relieve severe pain around-the-clock for a long time and who cannot be treated with other medications
or treatments.” Hydrocodone, MedlinePlus, U.S. Nat’l Library of Medicine, https://medlineplus.gov/
druginfo/meds/a614045 html (last visited Mar. 4, 2019). Like oxycodone, hydrocodone is an opiate analgesic, and
“works by changing the way the brain and nervous system respond to pain.” Id. Hydrocodone is available in
combination with other medications, including acetaminophen. Hydrocodone Combination Products, MedlinePlus,
U.S. Nat’l Library of Medicine, https://medlineplus.gov/druginfo/meds/a601006.html (last visited Mar. 4, 2019).
13
continued pain, and also to inquire whether she could begin physical therapy, including
myofascial release. (Tr. 503-04.)
Plaintiff saw Dr. Timsina again approximately three weeks later for a medication
check. (Tr. 501.) Plaintiff was “trying to cut back on her pills, without much relief in her
symptoms.” (Tr. 501.) Plaintiff had “days where neck pain will definitely make her feel
hurt.” (Tr. 501.) Plaintiff had “more muscle tenderness in her neck” and spasms on
occasion. (Tr. 501.) Plaintiff was again “in mild distress.” (Tr. 501.) Upon examination,
Dr. Timsina noted “some tenderness over her neck muscles” and “some tightening.” (Tr.
501.)
Dr. Timsina did “not know why [Plaintiff] is still having a lot of pain,” and noted
that Plaintiff had an upcoming appointment with neurosurgery. (Tr. 501.) Dr. Timsina
“told [Plaintiff] clearly that pain management has to be done by [the] pain clinic and not
by me because of the chronicness [sic] of her pain.” (Tr. 501.) Dr. Timsina added Flexeril
in the interim. (Tr. 501.)
Plaintiff followed up with Knutson a few days later. (Tr. 461.) Plaintiff’s arm
symptoms remained resolved, but Plaintiff was having trouble with “neck stiffness and
[wa]s struggling to get off narcotics.” (Tr. 461.) Overall, Plaintiff “fe[lt] happy with her
surgery.” (Tr. 461.) Plaintiff rated her neck pain at a 7 out of 10. (Tr. 461.) Plaintiff
continued to be “able to stand and walk with normal posture and stride” and had full
strength. (Tr. 461.) Plaintiff’s range of motion in her neck was “limited, but painless.”
(Tr. 461.) Knutson noted that Plaintiff was “doing well” following surgery, but also
14
included a diagnosis of “[c]hronic pain.” (Tr. 461.) Knutson recommended that Plaintiff
engage in “[p]hysical therapy for gentle neck stretches and strengthening.” (Tr. 461.)
In mid-April, Plaintiff consulted with the Center for Pain Medicine in Fargo, North
Dakota, for her neck pain based on a referral from Dr. Timsina. (Tr. 558.) Plaintiff
reported that “[m]ornings are always difficult” and she is having trouble sleeping. (Tr.
558.) Plaintiff’s pain “varied throughout the day.” (Tr. 558.) Plaintiff’s pain was
aggravated by raising and using her arms as well as lifting. (Tr. 558.) Plaintiff’s pain
improved with “medication, getting outside, walking around the block, sunshine, [and]
warm weather.” (Tr. 558.) It was noted that Plaintiff had “recently stopped taking
oxycodone,” and transitioned to hydrocodone.
(Tr. 558.)
Plaintiff was also taking
tramadol and Flexeril. (Tr. 558.)
Upon examination, Plaintiff had “[a]bnormal – muscle tightness in shoulders/neck”
and [t]enderness with palpation of Sacroiliac joints.” (Tr. 560.) Plaintiff had full strength
in her upper extremities and equal range of motion in each. (Tr. 560.)
Plaintiff was diagnosed with facet joint arthropathy and sacroiliac joint pain. (Tr.
561.) A number of treatments were recommended, including injections, “dry needling,”
heat, massage, and physical therapy.
(Tr. 561.)
Opiate medications were not
recommended. (Tr. 561.) Plaintiff “became upset after hearing . . . [the] recommendations,
and . . . [the] decline to prescribe opiate medication for her.” (Tr. 561.)
During an appointment near the end of April for right leg pain, the treatment
provider included a “[h]istory of chronic pain” in Plaintiff’s past medical history. (Tr.
497.)
15
Approximately one month later, Plaintiff was seen for a refill of her hydrocodone
prescription. (Tr. 611.) Among other conditions, Plaintiff’s past medical history included
“[c]hronic pain syndrome.” (Tr. 611.) Plaintiff was assessed as having “[c]hronic neck
pain” and given a one-week refill of hydrocodone until she could be seen by Dr. Timsina.
(Tr. 611.)
Plaintiff was able to see Dr. Timsina a few days later, who noted that she continued
to experience neck pain following her surgery and described it as “a history of chronic neck
pain status post cervical spinal fusion.” (Tr. 609.) Dr. Timsina noted that “[t]here has been
a plan about her being sent to [a] pain clinic. She went to on[e] pain clinic in Fargo, but
was not very happy with the plan. She has another pain clinic assessment lined up for next
week.” (Tr. 609.) Dr. Timsina noted that Plaintiff had enough pain pills until she was able
to been seen at the pain clinic. (Tr. 609.)
At the end of May, Plaintiff saw David J. Hanson, MD, at a pain clinic in Fargo,
North Dakota for neck, hip, and low-back pain. (Tr. 715.) Plaintiff rated her current pain
at a 7 out of 10. (Tr. 712.) Upon examination, Dr. Hanson noted:
Range of motion of the arms at the shoulders is decreased with
flexion bilaterally. Range of motion of the head is severely
limited with flexion and extension of the neck and moderately
limited with rotation in both directions. There is apprehension
with straight leg raise at about 40[ degrees] bilaterally. There
is apprehension with Faber test on the left and hip pain with
Faber test on the right. The infraorbital nerves are both tender
to palpation, the right subclavicular area is tender. The anterior
pelvis is nontender. The occiput is nontender. Trapezius
muscles of both tender to palpation, the serratus anterior
muscles and the paraspinous muscles in the lumbar region are
tender to palpation bilaterally. Both SI . . . joints are mildly
16
tender and both greater trochanters are tender to palpation. The
knees are nontender.
(Tr. 708, 712.)
Dr. Hanson diagnosed Plaintiff with cervical and lumbar radiculopathy, low back
pain, cervicalgia, myofascial pain syndrome, and bursitis.
(Tr. 710.)
Dr. Hanson
recommended trigger point and steroid injections. (Tr. 710-11.)
Plaintiff saw Dr. Hanson again approximately one week later for treatment of her
“myofascial pain syndrome that is causing pain in the back of the neck and the upper back
bilaterally.” (Tr. 707.) Plaintiff again rated her pain at a 7 out of 10. (Tr. 707.) Plaintiff
wanted to proceed with trigger point injections and also “need[ed] medications.” (Tr. 707.)
Dr. Hanson noted that there were “trigger points present in the trapezius, rhomboids and
posterior neck muscles bilaterally.” (Tr. 706.) Dr. Hanson prescribed a 30-day supply of
hydrocodone-acetaminophen 7 and administered trigger point injections. (Tr. 705.)
Around the middle of June, Plaintiff was seen in orthopedics for a labral tear in her
right hip. (Tr. 605.) Plaintiff’s past medical history listed “[c]hronic pain syndrome” as
of “10/3/2014.” (Tr. 606.) During the appointment, Plaintiff “also mentioned pain in her
wrists, hands, and ankles,” which made her treatment provider wonder about possible
rheumatoid arthritis and noted that Plaintiff was scheduled to be seen in rheumatology.
(Tr. 605.)
Plaintiff had another three visits with Dr. Hanson during June and into the first part
of July. (Tr. 695, 699, 703.) Plaintiff twice received trigger point injections and once
7
See supra n.6.
17
received a lumbar epidural steroid injection. (Tr. 695, 697, 701.) Plaintiff reported that
the trigger point injections were beneficial and helped relieve her pain. (Tr. 699, 703.)
During visits where trigger point injections were administered, Dr. Hanson noted that
“trigger points [were] present in the posterior neck muscles, trapezius, and rhomboids
bilaterally,” and Plaintiff was tender in these areas. (Tr. 698, 702.) Dr. Hanson also
prescribed another 30-day supply of hydrocodone-acetaminophen. (Tr. 697.)
Plaintiff followed up with Knutson towards the beginning of July. (Tr. 603.) While
Plaintiff’s headaches and arm pain had improved, Knutson noted that Plaintiff “continue[d]
to have neck spasm, muscle pain, and require[d] pain management for trigger point
injections.” (Tr. 603.) Knutson noted that Plaintiff was “fighting Workman’s Comp.” (Tr.
603.)
Knutson noted that Plaintiff “is able to stand and walk with normal posture and
stride.” (Tr. 603.) Plaintiff “ha[d] palpable cervical paraspinal muscle spasm present,” but
also full strength in her upper extremities. Knutson assessed Plaintiff as having “[c]hronic
pain” and directed her to follow up as needed. (Tr. 603.)
In the beginning of August, Plaintiff presented to the emergency room with a
headache lasting for several days. (Tr. 593.) Plaintiff’s history of chronic pain syndrome
was noted in her past medical history and the final impressions. (Tr. 593, 601.)
Towards the end of August, Plaintiff had a rheumatology consultation. (Tr. 588.)
In relevant part, it was noted that Plaintiff continued to experience “moderate pain in the
neck” following her surgery. (Tr. 588.) Plaintiff reported being “stiff in the morning for
1 to 1-1/2 hours.” (Tr. 588.) During the examination, it was noted, among other things,
18
that Plaintiff’s neck movement was limited. (Tr. 589.) Plaintiff had some tenderness in
her cervical spine, sacroiliac “areas,” and “over the trochanteric areas.” (Tr. 589.) Plaintiff
had “a lot of tenderness and spasm in the trapezius and supraspinatus muscles.” (Tr. 589.)
While additional testing was ordered to confirm, it was thought that Plaintiff did not have
“any systemic rheumatoid disease,” but rather “a combination of myofascial pain and
osteoarthritis of the cervical spine and a little bit of the lumbar spine.” (Tr. 589.)
At the end of November, Plaintiff followed up with orthopedics concerning right
hip pain. (Tr. 581.) Chronic pain syndrome was again listed in Plaintiff’s past medical
history. (Tr. 582.)
Between August and December, Plaintiff continued to see Dr. Hanson for treatment
of her myofascial pain syndrome and accompanying pain and stiffness. (Tr. 675, 678, 681,
689, 687, 690.) At Plaintiff’s November appointment, she reported that she had “been
taking care of an 18-month-old child and ha[d] to do a lot of bending over and picking up
while taking care of the child.” 8 (Tr. 678.) Plaintiff also reported that she was “bothered
by long car rides.” (Tr. 678.)
Plaintiff continued to experience relief with trigger point injections. (Tr. 690.) Dr.
Hanson continued to document trigger points present in the muscles at the back of
Plaintiff’s neck and “the trapezius, the rhomboids, and the muscles around [the] scapula
bilaterally.” (Tr. 689; see Tr. 677, 686.) In December, Plaintiff had “mild tenderness over
the right greater trochanter.” (Tr. 674.) Dr. Hanson continued to administer trigger point
8
At the hearing before the ALJ, Plaintiff testified that she is not sure who the 18-month-old child is that Dr. Hanson
is referring to. (Tr. 56.) Plaintiff does, however, help babysit her two grandchildren, one of whom lives with her.
(Tr. 53-55.) See infra Section V.B.
19
injections and provide 30-day supplies of medication. (Tr. 673, 676, 676, 682, 685, 688.)
Dr. Hanson made some adjustments to the dosing of Plaintiff’s medication, increasing the
dose in the morning, which Plaintiff found beneficial. (Tr. 681-82.)
Plaintiff returned to Dr. Vijayalakshmi after over a year around the middle of
December. (Tr. 574.) Plaintiff reported that “she has had continuing symptoms of ongoing
posterior neck, upper back, [and] mid back pain along with significant headaches.” (Tr.
574.) Plaintiff reported that “she is noticing improvement with these symptoms from
trigger point injections.” (Tr. 577.)
Plaintiff also requested that Dr. Vijayalakshmi complete certain paperwork for her.
(Tr. 574.) Dr. Vijayalakshmi noted that Plaintiff was currently seeing multiple treatment
providers, including through the pain clinic and orthopedics. (Tr. 575.) Dr. Vijayalakshmi
told Plaintiff that she was not comfortable completing paperwork for her, and Plaintiff
needed to have any work/work restrictions completed by neurosurgery in light of her fusion
surgery. (Tr. 575.) Dr. Vijayalakshmi emphasized to Plaintiff that she would not complete
any paperwork. (Tr. 576; see also, e.g., Tr. 577-78.)
Dr. Vijayalakshmi recommended that Plaintiff follow up with her other treatment
providers. (Tr. 575, 577-78.) Among other conditions, Dr. Vijayalakshmi included
“[m]yofascial pain and dysfunction syndrome” and “[c]hronic pain syndrome” among
Plaintiff’s diagnoses. (Tr. 577.) Dr. Vijayalakshmi noted that she did “not have anything
more to offer from a physical medicine and rehabilitation clinic standpoint,” and Plaintiff
would “not be scheduled [for] any further follow[]up.” (Tr. 578.)
20
3. 2016
As part of an annual physical in January 2016, “[c]hronic pain syndrome” was listed
in Plaintiff’s past medical history and included among her final diagnoses. (Tr. 572-73.)
Plaintiff saw Dr. Baker at the beginning of February concerning paperwork for her
worker’s compensation proceeding. (Tr. 569.) Plaintiff continued to report neck pain and
headaches, among other things. (Tr. 569.) Dr. Baker recommended that Plaintiff consult
with a neurologist concerning her headaches. (Tr. 569.) With regards to questions related
to
the
worker’s
compensation
proceedings,
Dr.
Baker
noted
that
it
was
“unclear to [him]” the degree to which Plaintiff’s work as an embroiderer accelerated or
worsened her spinal disorder, “but clearly based on [the] description of her job, it may have
contributed to exacerbation of her baseline cervical degenerative disorder.” (Tr. 570.) As
for further treatment, Dr. Baker again recommended seeing a neurologist in connection
with her headaches. (Tr. 570.)
As for Plaintiff’s ability “to work without restriction,” Dr. Baker noted:
I strongly recommend that [she] be evaluated by an
occupational medicine physician for proper testing of each
individual muscle group to determine maximal medical
improvement and objectively assess her current state to
determine whether she can go back to work without restriction.
On my assessment she does have full strength in her upper
extremities with no deficit on gross motor testing and no deficit
on sensory examination.
(Tr. 570.) Similarly, Dr. Baker stated that he “cannot comment on the degree of disability
in a comprehensive fashion, but in a limited fashion pertaining to cervical surgery, she has
21
5 out of 5 strength in individual motor group testing, which is a fairly robust examination.”
(Tr. 570.)
Plaintiff saw Dr. Hanson once per month between January and March. (Tr. 666,
669, 672.) These visits primarily focused on medication management. (Tr. 664, 666-67,
669-70, 672.) In January, Plaintiff asked about possible treatment for right hip pain,
reporting that “[t]he pain is not very bad now, but there are times when the pain is so bad
she has to use a walker.” (Tr. 672.) Dr. Hanson noted that Plaintiff had “some tenderness
over the right great trochanter” and administered another lumbar epidural steroid injection.
(Tr. 670-71.) In February, Plaintiff requested to lower her medication dose to its prior
level. (Tr. 669.)
In early April 2016, Plaintiff underwent a functional capacity evaluation. (Tr. 541555, 646-55.) Prior to testing, it was confirmed with both neurosurgery and orthopedics
that Plaintiff had no lifting, positional or other restrictions. (Tr. 541, 646.) The evaluator
noted that while Plaintiff “was pleasant and voiced willingness to fully participate in
testing, six test items were self-limited prior to objective signs of maximum effort.” (Tr.
541; accord Tr. 646.) These included “all lifts and carries, crouching, and elevated work
(both weighted and unweighted).” (Tr. 541; accord Tr. 646.) Plaintiff reported “fear of
re-injury or increasing pain as a reason for not continuing.” (Tr. 541; accord Tr. 646.) The
evaluator noted that Plaintiff often demonstrated slow, exaggerated, and deliberate
movement patterns which required more effort. (Tr. 542, 647.) The evaluator did find that
Plaintiff “was consistent in giving maximum effort in hand/finger coordination tests,
push/pull, FB [sic] standing, sitting, and standing work.” (Tr. 542; accord Tr. 647.)
22
The evaluator concluded that Plaintiff’s “Abilities/Strengths” were “[s]itting and
walking on an occasional basis”; “[s]tanding work on [a] frequent basis”; “[k]neeling on
[a] frequent basis”; and “[a]verage hand coordination.”
(Tr. 542; accord Tr. 647.)
Plaintiff’s “Limitations” were “[f]orward bend in standing due to decreased core/cervical
strength/stability”; “[w]alking – begins to favor right lower extremity as time/distance
increase”; and “[s]tair [c]limbing – able to safely negotiate stairs, but will have limitations
due to walking limitations.” (Tr. 542; accord Tr. 647.) The evaluator additionally noted
that while Plaintiff had self-limited during lifting and carrying tests, she was observed to
be able to lift 20 pounds from the floor to her waist frequently, and lift 15 pounds from her
waist to her head frequently. (Tr. 542, 647.) Plaintiff was able to carry 15 pounds
frequently and 25 pounds occasionally. (Tr. 543, 647.) Ultimately, the evaluator was not
able to determine Plaintiff’s “physical demand level” due to her self-limiting. (Tr. 543;
accord Tr. 647.) The evaluator noted that Plaintiff “state[d] she might be able to tolerate
a job that is ‘light duty.’” (Tr. 552; accord Tr. 655.)
Plaintiff followed up with Dr. Timsina at the end of April with continued complaints
of neck and back pain. (Tr. 644.) Dr. Timsina noted that Plaintiff “had a nonunion at C5C6” following her surgery, and ordered an MRI to further evaluate. (Tr. 644; see Tr. 565,
629.) The MRI showed “no postoperative changes,” and Dr. Timsina told Plaintiff to talk
with Dr. Baker to see if additional action should be taken. (Tr. 747.)
Plaintiff continued to see Dr. Hanson approximately once per month between April
and July. (Tr. 717-21.) These appointments were again primarily focused on medication
management, and, in June, Plaintiff’s dosage was again increased. (Tr. 717-21.) During
23
this time, Plaintiff also had a set of trigger point injections and another lumbar epidural
steroid injection. (Tr. 720-21.) In April, Plaintiff had “trigger points present in the back
of the neck, across the upper back and shoulders and in the lumbar and gluteal muscles
bilaterally.” (Tr. 721.) In June, Dr. Hanson noted that Plaintiff’s “[r]ange of motion of the
neck is limited with rotation, flexion and extension in both directions.” (Tr. 718.) At her
next appointment in July, Plaintiff continued to have “limited range of motion of the neck.”
(Tr. 717.) Her right greater trochanter was nontender, but she had “some tenderness to
palpation in the inter scapular area.” (Tr. 717.)
B. Mental Health Records
Plaintiff has been seeing Michael E. Stewart, M.D., a psychiatrist, since 2007 for
depression. (Tr. 537; see Tr. 48.)
1. 2015
Plaintiff saw Dr. Stewart at the end of February 2015. (Tr. 505.) Dr. Stewart noted
that “[i]t ha[d] been almost a year since [he] last saw [Plaintiff],” and that she had been
“coming in for months seeking treatment through primary care for issues involving chronic
pain.” (Tr. 505; see Tr. 401-02.) Plaintiff completed a PHQ-9 questionnaire, which
“plac[ed] her down in the mild range of depression” notwithstanding her self-reporting that
her symptoms made functioning “very difficult.” (Tr. 505.)
Dr. Stewart noted that Plaintiff was “[p]olite, [and c]ooperative”; made “good eye
contact”; and was “engaged well in [the] discussion.” (Tr. 506.) Plaintiff “smiled several
times” and talked about her children. (Tr. 506.) Dr. Stewart noted that there was “[n]o
evident distress here in [the] clinic.” (Tr. 506.) Dr. Stewart assessed Plaintiff with mild
24
depression, continued her Prozac 9 and alprazolam 10 prescriptions, and directed her to return
in six months. (Tr. 506.)
Plaintiff’s next appointment with Dr. Stewart was in August. (Tr. 591.) Plaintiff’s
PHQ-9 questionnaire again placed her “in the mild range of depression” while Plaintiff
self-reported that her symptoms made functioning “extremely difficult.”
(Tr. 591.)
Plaintiff reported that “she is struggling, having a ‘really tough time’ in . . . large part due
to medical issues.” (Tr. 591.) Plaintiff “[t]alk[ed] about how discouraging it is to have one
problem after another medically.” (Tr. 592.) Dr. Stewart noted that Plaintiff was “[p]olite,
cooperative”; her “[a]ffect [wa]s somewhat dysphoric”; and she “made eye contact and
engaged very well in . . . [the] discussion.” (Tr. 592.)
Dr. Stewart diagnosed Plaintiff with mild depression, “[l]argely due to situational
factors, medical problems.” (Tr. 592.) Dr. Stewart continued Plaintiff’s medications, and
suggested that Plaintiff might try changing her antidepressant medication “to one which
also tends to alleviate pain.” (Tr. 592.) Dr. Stewart also “talked to [Plaintiff] at length
about ways she might look into using her time and convalescence in a productive way,”
such as pursuing educational opportunities. (Tr. 592.) Dr. Stewart directed Plaintiff to
9
Prozac is a brand name for fluoxetine, a medication “used to treat depression, obsessive-compulsive disorder
(bothersome thoughts that won’t go away and the need to perform certain actions over and over), some eating
disorders, and panic attacks (sudden, unexpected attacks of extreme fear and worry about these attacks).”
Fluoxetine, MedlinePlus, U.S. Nat’l Library of Medicine, https://medlineplus.gov/druginfo/meds/a689006.html (last
visited Mar. 4, 2019).
10
Alprazolam is used to treat anxiety and panic disorders, and can also be used to treat depression. Alprazolam,
MedlinePlus, U.S. Nat’l Library of Medicine, https://medlineplus.gov/druginfo/meds/a684001 html (last visited
Mar. 4, 2019). Xanax is a brand name for alprazolam. Id.
25
return in six to eight weeks “given the fact that she has been struggling more with all her
medical problems.” (Tr. 592.)
When Plaintiff followed up with Dr. Stewart in early November, her PHQ-9 score,
“plac[ed] her at the top of the moderate range of depression.” (Tr. 585.) Plaintiff continued
to report that her symptoms made functioning “very difficult.” (Tr. 585.) Plaintiff also
continued to struggle with her physical health. (Tr. 585.) In addition, Plaintiff was stressed
over her worker’s compensation proceeding. (Tr. 586.) Dr. Stewart noted that Plaintiff
can take care of most household chores “as long as she intersperses activity with periods
of rest.” (Tr. 585.) Plaintiff’s children provided some assistance. (Tr. 585.)
Dr. Stewart again observed that Plaintiff made good eye contact and was engaged
in the discussion. (Tr. 586.) He further noted that she “does look to be very careful with
the way she walks and sits,” and “[i]t is quite apparent this is to minimize any pain.” (Tr.
586.) Dr. Stewart diagnosed Plaintiff with moderate depression, “[s]omething of an
exacerbation, largely due to situational factors related to medical health.” (Tr. 586.) No
changes were made to her medications. (Tr. 586.)
2. 2016
Plaintiff’s next appointment with Dr. Stewart was in February 2016. (Tr. 567.)
Plaintiff’s PHQ-9 score again “plac[ed] her in the moderate range of depression.” (Tr.
567.) Plaintiff reported that her “mood has been somewhat better of late.” (Tr. 567.)
Plaintiff went “on to talk about how just the past 3 weeks she has tried to take her Prozac
consistently on a daily basis” as she had previously “been taking the Prozac about 3 doses
a week.” (Tr. 568.) Similar to prior observations, Dr. Stewart noted that Plaintiff was
26
polite and cooperative, made good eye contact, and was engaged in the discussion. (Tr.
568.) Dr. Stewart noted that Plaintiff’s affect was “mildly dysphoric.” (Tr. 568.) Dr.
Stewart described Plaintiff as having moderate depression, noting that it was “trending in
an improving direction.” (Tr. 568.)
IV. OPINION EVIDENCE
A. Dr. Stewart
1. 2015
In November 2015, Dr. Stewart completed a mental medical source statement. (Tr.
537-40.) Dr. Stewart listed Plaintiff’s diagnosis as “major depression,” noting that he saw
Plaintiff approximately every 6 to 12 months. (Tr. 537.) Plaintiff’s current medications
were Prozac and Xanax 11. (Tr. 538.)
Dr. Stewart checked off numerous signs and symptoms, which he stated were
reflective of Plaintiff’s mental status examinations during their appointments: poor
memory secondary to her depression and medication, appetite disturbance with changes in
weight, sleep disturbance, personality changes, mood disturbance, emotional lability,
recurrent panic attacks, anhedonia or pervasive loss of interests, psychomotor agitation or
retardation, paranoia or inappropriate suspiciousness, feelings of guilt/worthlessness,
difficulty thinking or concentrating, social withdrawal or isolation, decreased energy,
possible manic syndrome, obsessions or compulsions, intrusive recollections of a traumatic
11
See supra n.10.
27
experience, generalized persistent anxiety, hostility, perceptual disturbances, and
irritability. (Tr. 537.)
Dr. Stewart opined that Plaintiff was likely to be off-task 25% or more of the time.
(Tr. 538.) Dr. Stewart also opined that Plaintiff was likely to be absent from work four or
more days per month. (Tr. 538.)
When asked if Plaintiff’s ability to understand and carry out instructions was
impaired, Dr. Stewart checked “yes.” (Tr. 538.) Dr. Stewart then proceeded to check
“marked loss” in the form’s definition section, which was defined as “[s]ubstantial loss of
ability in the named activity; can sustain performance only up to 1/3 of an 8-hour workday.”
(Tr. 538.) Elsewhere, Dr. Stewart specifically checked that Plaintiff had marked loss in
her abilities to understand and remember complex instructions, maintain attention and
concentration for extended periods, maintain regular attendance and be punctual, deal with
the stress of semi-skilled and skilled work, perform at a consistent pace without
unreasonable breaks, and complete a normal workday or workweek without interruption.
(Tr. 539.) Dr. Stewart checked that Plaintiff had moderate loss in her abilities to sustain an
ordinary routine without special instruction and work in coordination with or proximity to
others without distraction. (Tr. 539.) Lastly, Dr. Stewart checked that Plaintiff had no or
mild loss in her ability to make simple work-related decisions. 12 (Tr. 539.) Dr. Stewart’s
12
The copy of Dr. Stewart’s medical source statement is not ideal. It is not clear what Dr. Stewart opined with
respect to Plaintiff’s abilities to remember locations and work-like procedures, understand and remember very
simple instructions, and carry out simple instructions. (Tr. 538.) Based on the copy in the record, it does not appear
that Dr. Stewart checked anything for these three items.
28
opinion was based on Plaintiff “depressed mood, chronic pain, [and] problems with
concentration/focus.” (Tr. 539.)
When asked if Plaintiff’s abilities to respond to supervisors, coworkers, and pressure
in a work setting were affected, Dr. Stewart checked “yes.” (Tr. 539.) Dr. Stewart checked
that Plaintiff had a marked loss in her ability to deal with the public. (Tr. 539.) Dr. Stewart
checked that Plaintiff had moderate loss in her abilities to accept instructions and respond
appropriately to criticism from supervisors, get along with coworkers and peers, maintain
socially appropriate behavior, and respond appropriately to changes in the work setting.
(Tr. 539.) Dr. Stewart checked that Plaintiff had no or mild loss in her abilities to ask
simple questions or request assistance, adhere to basic standards of neatness and
cleanliness, and be aware of normal hazards. (Tr. 539.)
Dr. Stewart further opined that Plaintiff had slight restriction in her activities of
daily living and slight difficulties in social functioning. (Tr. 539.) Dr. Stewart opined that
Plaintiff had frequent difficulties with concentration, persistence or pace. (Tr. 539.)
Dr. Stewart next answered questions about episodes of deterioration or
decompensation. (Tr. 540.) Based on the quality of the copy in the record, see supra n.12,
Dr. Stewart’s responses to these questions are not entirely clear. (See Tr. 540.) In the
explanation section, Dr. Stewart wrote, “extreme hip pain [secondary] to labral tear”;
“episodes [of] depressed mood”; and “fusion surgery on cervical spine.” (Tr. 540.) When
asked how many episodes of decompensation Plaintiff had experienced in the last 12
months, Dr. Stewart responded similarly: “cervical fusion surgery”; “exacerbations of
29
depression [secondary] to stress [and] pain [and] loss of function”; and “labral tear.” (Tr.
540.)
2. 2016
In or around July 2016, Dr. Stewart completed a mental residual functional capacity
assessment form. 13 (Tr. 724-27.) With respect to understanding and memory, Dr. Stewart
checked that Plaintiff was not significantly limited in her ability to understand and
remember very short and simple instructions; was moderately limited in her ability to
remember locations and work-like procedures; and was markedly limited in her ability to
understand and remember detailed instructions. (Tr. 724.)
As for sustained concentration and persistence, Plaintiff was not significantly
limited in her abilities to carry out very short and simple instructions, sustain an ordinary
routine without supervision, and make simple work-related decisions. (Tr. 724.) Plaintiff
was moderately limited in her ability to work in coordination with or proximity to others.
(Tr. 724.) Plaintiff was markedly limited in her abilities to carry out detailed instructions
and maintain attention and concentration for extended periods. (Tr. 724.) Plaintiff was
also markedly limited in her abilities to perform activities within a schedule (including
maintaining regular attendance and punctuality), complete a normal workday and work
week without interruption, and perform at a consistent pace without unreasonable rest
periods. (Tr. 724-25.)
13
The mental residual functional capacity assessment form is not signed or dated. (Tr. 726.) It is accompanied by a
letter dated July 21, 2016, requesting that this form and a psychiatric review technique form be completed prior to
the August hearing with the ALJ. (Tr. 723.) There are various facsimile date and time stamps on both forms from
July and August. (See Tr. 723-741.)
30
Regarding Plaintiff’s social abilities, Plaintiff was not significantly limited in her
abilities to interact appropriately with the public, ask questions or request assistance, and
maintain socially appropriate behavior. (Tr. 725.) Plaintiff was moderately limited in her
abilities to respond appropriately to criticism from supervisors and get along with
coworkers. (Tr. 725.)
Lastly, with respect to adaptation abilities, Plaintiff was not significantly limited in
her ability to respond appropriately to changes in the work setting. (Tr. 725.) Plaintiff was
moderately limited in her abilities to recognize and respond appropriately to normal
hazards, set realistic goals, and make plans independently of others. (Tr. 725.) Plaintiff
was markedly limited in her ability to travel to unfamiliar places or use public
transportation. (Tr. 725.)
Dr. Stewart also completed portions of a psychiatric review technique form. 14 (Tr.
728-41.) Dr. Stewart did not check any of the boxes in the “Medical Disposition(s)”
category, such as whether there was no medically determinable impairment, there was an
impairment but it was not severe, or that the impairment met or equaled a listed impairment.
(Tr. 728.) Dr. Stewart then checked listing 12.04 for affective disorders when asked about
the basis for the medical disposition. (Tr. 728.)
Dr. Stewart next proceeded to check a number of boxes regarding the presence of
symptoms under a handful listings. (Tr. 729-33.) For listing 12.02 pertaining to organic
mental disorders, Dr. Stewart checked “[d]isturbance in mood.” (Tr. 729.) For affective
14
See supra n.13.
31
disorders under listing 12.04, Dr. Stewart checked that Plaintiff’s depression included
symptoms of anhedonia, appetite disturbance, sleep disturbance, psychomotor agitation,
decreased energy, feelings of guilt or worthlessness, and difficulty concentrating or
thinking. (Tr. 731.) Lastly, under listing 12.06 for anxiety-related disorders, Dr. Stewart
checked “[m]otor tension,” “[a]pprehensive expectation,” and panic attacks, which he
noted were a “recent development.” (Tr. 733.)
Dr. Stewart then opined on Plaintiff’s functional limitations. Dr. Stewart checked
that Plaintiff had moderate restriction of activities of daily living and had marked restriction
in maintaining social functioning as well as concentration, persistence, or pace. (Tr. 738.)
Dr. Stewart additionally opined that Plaintiff had four or more episodes of decompensation
of extended duration. (Tr. 738.)
B. State Agency Psychological Consultants
Plaintiff’s depression was determined to be a non-severe impairment under the
listing for affective disorders both during the initial determinations and during the
subsequent reconsiderations.
(Tr. 69, 79, 92, 103.)
Each time, the state agency
psychological consultants opined that Plaintiff had mild restriction in activities of daily
living and in her ability to maintain concentration, persistence, or pace; had no difficulties
with social functioning; and experienced no episodes of decompensation. (Tr. 69, 79, 92,
103.)
32
V. PLAINTIFF’S DISABILITY REPORTS & HEARING TESTIMONY
A. Disability Reports
In connection with her applications, Plaintiff completed a function report. (Tr. 25764.) When asked how her conditions limit her ability to work, Plaintiff stated that she has
pain in her neck, which travels to her shoulders and “up the back of [her] head”; in her
arms, which is accompanied by numbness; and in her back, which radiates into her legs.
(Tr. 257.) Plaintiff also experiences “eye soreness, headaches, and light sensitivity.” (Tr.
257.)
In a typical day, Plaintiff made coffee, took her medications, prepared her son for
school, attended to her personal care, washed dishes, did laundry, rested, watched
television, read, and made supper for her son. (Tr. 258; see Tr. 262, 286.) Plaintiff also
helped her son with homework and “support[ed him] in activities.” (Tr. 258.) Plaintiff
additionally cared for her dogs. (Tr. 258, 260, 286.)
Plaintiff prepared meals daily, but the type of food and time for preparation varied
with fatigue and pain. (Tr. 259.) Plaintiff performed household chores indoors, such as
dishes, laundry, sweeping, and trash disposal, but needed help with outside chores such as
shoveling. (Tr. 259-60.) Plaintiff was able to drive. (Tr. 260.) Plaintiff shopped in stores
for approximately one hour per week for food, personal products, and household supplies.
(Tr. 260.)
Plaintiff stated that her conditions result in her feeling more tired, being less social,
and being less active than she was before. (Tr. 258; see Tr. 261-62, 289.) Plaintiff’s pain
also affected her sleep. (Tr. 258, 286.) Plaintiff reported that her conditions affected her
33
abilities to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, remember, complete
tasks, concentrate, and use her hands. (Tr. 261.) She was “not as strong due to pain or
[had] more pain to follow if . . . [she did] these items too much.” (Tr. 261; see Tr. 290.)
Plaintiff was “not sure” how long she could walk before needing to rest. (Tr. 261.) Plaintiff
was also “not sure” how long she could pay attention. (Tr. 261.) Plaintiff sometimes
finished what she started. (Tr. 261; see Tr. 290.) Plaintiff responded “ok” when asked
how well she follows written and spoken instructions, stating that she sometimes asks to
have something repeated. (Tr. 262.)
When describing her social activities, Plaintiff regularly had coffee with her parents,
talked on the phone with a daughter, and visited with her children at home. (Tr. 262.)
Plaintiff described her ability to get along with authority figures as “ok.” (Tr. 263.)
Plaintiff was “not sure” how she handled stress and did not handle changes in routine
well. (Tr. 263; see Tr. 291.) Plaintiff reported worrying about her health and finances.
(Tr. 263.)
In a subsequent report, Plaintiff stated that her conditions had worsened, and she
was having “[d]ifficulty doing anything due to pain” and her “[m]ental health ha[d] gotten
significantly worse.” (Tr. 276; see Tr. 280.)
In a later function report, Plaintiff noted that it was “very painful to tilt [her] head
up and down” and she has difficulty lifting things over her head, including washing her
hair. (Tr. 285.) Plaintiff reported that she has muscle spasms in her neck daily; her “[e]ntire
body is in great pain in [the] morning”; and “[e]xtension movements that put strain on [her]
neck [and] back such as vacuuming or changing a light bulb are hard [and] can put [her]
34
down the next day if [she] do[es] too much.” (Tr. 285.) Plaintiff reported that more than
“15 minutes of vacuuming is too much.” (Tr. 285.) Twisting motions caused pain as well.
(Tr. 286.) Plaintiff also needed to rest in the afternoon to “get [her] physical [and] mental
health back under control before [her] son comes home from school.” (Tr. 285.)
Plaintiff additionally reported that she “struggle[s] with not wanting to leave the
house because [her] anxiety [and] depression are very high” and she misses family
functions. (Tr. 285.) Plaintiff reported needing help with her medication, noting that
because she feels better when taking her mental-health medication, she will stop taking it,
and then things worsen. (Tr. 287.)
Plaintiff most often made simple, convenience foods, and now prepared meals “2-3
days a week on a good week.” (Tr. 287.) Plaintiff continued to perform household chores
for approximately 45 minutes per day with breaks. (Tr. 287.) Plaintiff reported that her
parents assist her, her “daughter helps when [she is] unable to do things,” and her son
helped with laundry, carrying things downstairs, and yardwork. (Tr. 286; see Tr. 287.)
Plaintiff now shopped only twice per month for approximately 30 to 45 minutes. (Tr. 288.)
Plaintiff reported that her “mental health [and] pain make it difficult to concentrate
[and] complete most tasks.” (Tr. 290.) They also made “it difficult for [her] to get along
with others.” (Tr. 290.) This time, Plaintiff reported that her ability to pay attention
depended on the task. She had “no problem” with tasks that were not stressful, but found
it “hard to concentrate” for “emotional or detailed” tasks. (Tr. 290.) Plaintiff reported that
sometimes she “rush[es]” through written instructions, but “do[es] okay.” (Tr. 290.)
Plaintiff reported that spoken instructions were not “too much of a problem.” (Tr. 290.)
35
Plaintiff also reported that she sometimes becomes “aggravated” and “frustrated” with
doctors, but does not have difficulties getting along with “police, bosses[, and] landlords.”
(Tr. 291.)
Later, Plaintiff continued to report deterioration in her mental health due to “dealing
with the pain from [her] condition.” (Tr. 296.) Plaintiff was also under increasing financial
pressure, which affected her stress level. (Tr. 296.)
B. Hearing Testimony
At the hearing before the ALJ, Plaintiff testified that she has had pain in her neck
ever since she was in a car accident as a child. (Tr. 37.) Plaintiff testified that the soreness
in her neck progressively worsened and was accompanied by headaches and “lock-up
episodes” where she was unable to turn and movement was “extremely painful.” (Tr. 38.)
Plaintiff testified that all of the “looking down” and “shoulder use” was difficult for her
while working as an embroiderer. (Tr. 37-38.) Plaintiff’s hands were also swollen and
tingled. (Tr. 39-40.)
Plaintiff testified that, after her surgery, she still had tingling in her hands and
constant, ongoing pain. (Tr. 41.) Plaintiff testified that “[e]very part of [her] life . . . is
affected.” (Tr. 41.) Plaintiff’s pain is “always there.” (Tr. 45.) Plaintiff testified that she
has trouble with anything above her shoulder, lifting, and twisting motions. (Tr. 41, 45;
see Tr. 47.) Plaintiff also had difficulties sitting and standing too long. (Tr. 45.) Plaintiff
estimated that she could sit for approximately 30 minutes before needing to stand up or
move around. (Tr. 46.) Plaintiff testified that, throughout the day, she has to be mindful
of what she does and her tolerance so as not to increase her pain. (Tr. 42.) Plaintiff testified
36
that she uses rest, heat, and ice to deal with her pain. (Tr. 43.) Plaintiff estimated that she
would probably miss work five times per month due to pain. (Tr. 52.)
Plaintiff testified that she is unable to cook dinner approximately three to four times
per week due to pain. (Tr. 43.) Plaintiff also testified that she is sometimes unable to
attend her son’s athletic events due to pain. (Tr. 44.) Plaintiff testified that she “used to
attend even away games or away events,” but now misses approximately three home games
in a single season. (Tr. 44.) Plaintiff also limited her social activities. (Tr. 45.)
At the hearing, Plaintiff was asked about why she was not able to complete the
functional capacity evaluation. (Tr. 46-47.) Plaintiff testified that she “was having extreme
pain.” (Tr. 46.) Plaintiff testified that she tried to complete the tests by adjusting how her
arms were positioned, such as pulling the weight “in closer to [her] body” but that was not
part of the test protocol. (Tr. 47.) Plaintiff testified that “[t]he pain was too much and too
severe.” (Tr. 47.)
Plaintiff testified that she has been seeing Dr. Stewart for over ten years. (Tr. 48.)
Plaintiff discussed her pain with him “because it has a lot to do with [her] life and
everything.”
(Tr. 48.)
Plaintiff testified that the pain impacted her mental health,
describing a mind-body connection where thoughts became “charged by the pain,” and
things that were once easier to deal with became harder to do. (Tr. 49.) Plaintiff testified
that she could pay attention sufficiently long to watch a two-hour movie, but had trouble
with more active concentration such as paying bills and balancing a checkbook. (Tr. 4950.) Plaintiff testified that she could pay attention for approximately 10 minutes while
performing a simple task. (Tr. 52.)
37
Plaintiff testified that she currently lives with her teenage son, an adult daughter,
and her nine-month-old granddaughter. (Tr. 53.) Plaintiff testified that her daughter
primarily cares for her granddaughter, but sometimes she babysat, such as when her
daughter needs to go to the store. (Tr. 54.) Plaintiff testified that while she is able to lift
her granddaughter, it is difficult to do so. (Tr. 55.) Plaintiff testified she also assists with
babysitting her other daughter’s newborn while the daughter who lives with her has
primary responsibility. (Tr. 55.) Plaintiff testified that her grandchildren are at her house
for “a couple of hours” during a work day. (Tr. 55.)
VI. ANALYSIS
This Court reviews whether the ALJ’s decision is supported by substantial evidence
in the record as a whole. Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011).
“Substantial evidence means less than a preponderance but enough that a reasonable person
would find it adequate to support the decision.” Id. This standard requires the Court to
“consider both evidence that detracts from the [ALJ’s] decision and evidence that supports
it.” Id. The ALJ’s decision “will not [be] reverse[d] simply because some evidence
supports a conclusion other than that reached by the ALJ.” Perks v. Astrue, 687 F.3d 1086,
1091 (8th Cir. 2012). “The court must affirm the [ALJ’s] decision if it is supported by
substantial evidence on the record as a whole.” Chaney v. Colvin, 812 F.3d 672, 676 (8th
Cir. 2016) (quotation omitted). Thus, “[i]f, after reviewing the record, the court finds it is
possible to draw two inconsistent positions from the evidence and one of those positions
represents the ALJ’s findings, the court must affirm the ALJ’s decision.” Perks, 687 F.3d
at 1091 (quotation omitted); accord Chaney, 812 F.3d at 676.
38
Disability benefits are available to individuals who are determined to be under a
disability. 42 U.S.C. §§ 423(a)(1), 1381a; accord 20 C.F.R. §§ 404.315, 416.901. An
individual is considered to be disabled if she is unable “to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which can
be expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); accord 42 U.S.C.
§ 1382c(a)(3)(A); see also 20 C.F.R. §§ 404.1505(a), 416.905(a). This standard is met
when a severe physical or mental impairment, or impairments, renders the individual
unable to do her previous work or “any other kind of substantial gainful work which exists
in the national economy” when taking into account her age, education, and work
experience. 42 U.S.C. § 423(d)(2)(A); accord 42 U.S.C. § 1382c(a)(3)(B); see also 20
C.F.R. §§ 404.1505(a), 416.905(a).
Disability is determined according to a five-step, sequential evaluation process. 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).
To determine disability, the ALJ follows the familiar five-step
process, considering whether: (1) the claimant was employed;
(2) she was severely impaired; (3) her impairment was, or was
comparable to, a listed impairment; (4) she could perform past
relevant work; and if not, (5) whether she could perform any
other kind of work.
Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010). In general, the burden of proving
the existence of disability lies with the claimant. 20 C.F.R. §§ 404.1512(a), 416.912(a).
39
A. Issues Raised
Plaintiff’s challenges revolve around the ALJ’s treatment of her chronic pain
syndrome. Plaintiff asserts that her claims for DIB and SSI were “predicated upon her
chronic pain syndrome and the interaction between her pain and depression.” (Pl.’s Mem.
in Supp. at 2, ECF No. 14.) Plaintiff argues that the ALJ erred by not addressing her
chronic pain syndrome at step two as either a severe or non-severe impairment. Plaintiff
further argues that the alleged error at step two led to the ALJ failing to consider her pain
and depression properly in combination, the opinion of her treating physician, and her
subjective complaints.
B. Chronic Pain Syndrome as a Severe Impairment
The ALJ found and concluded that Plaintiff had two severe impairments: cervical
degenerative disc disease and depression. (Tr. 14.) In reaching this conclusion, the ALJ
also discussed Plaintiff’s leg and hip pain as well as degenerative changes in her lumbar
spine. (Tr. 15.) The ALJ found these conditions were all non-severe. (Tr. 15.) The ALJ
observed that Plaintiff did not pursue treatment options for her leg and hip pain and her hip
pain improved “not long after.” (Tr. 15.) The ALJ also observed that Plaintiff’s medication
was effective for her headaches and she did not seek further treatment. (Tr. 15.) Similarly,
with respect to Plaintiff’s lumbar spine, the ALJ noted that, while imaging reflected
degenerative changes, “these findings were described as ‘mild’ and [Plaintiff] was advised
that there was no need for surgical intervention.” (Tr. 15.) The ALJ further noted that
“[p]hysical examinations throughout the file do not show that she has had any significant
40
gait issues or decreased strength in her lower extremities.” (Tr. 15.) The ALJ did not
specifically discuss chronic pain syndrome.
Plaintiff asserts that “[t]he ALJ committed reversible error by failing to assess [her]
chronic pain syndrome as severe or non-severe at step [two].” (Pl.’s Mem. in Supp. at 4.)
Plaintiff asserts that, “[w]hile the ALJ discusses [her] pain in general terms as part of the
residual functional capacity finding at step [four], this does not obviate the need to make
findings regarding her medically-determinable chronic pain syndrome earlier in the
sequential evaluation process.” (Pl.’s Mem. in Supp. at 6.) Plaintiff asserts that, “[i]n this
circuit, improper consideration of a medically determinable impairment at step [two] is not
‘harmless error,’” citing Nicola v. Astrue, 480 F.3d 885, 887 (8th Cir. 2007). (Pl.’s Reply
at 1, ECF No. 17.)
The Commissioner responds that Plaintiff has failed to meet her burden to show that
her chronic pain syndrome is a severe impairment because the records referenced by
Plaintiff at most indicate a prior diagnosis, which is not sufficient to establish that her
chronic pain syndrome resulted in functional limitations. Citing case law from the Sixth,
Ninth, and Tenth Circuits, the Commissioner further responds that any error by the ALJ at
step two with respect to Plaintiff’s chronic pain syndrome was harmless because the ALJ
found at least one severe impairment and proceeded to the next step in the sequential
evaluation process.
At step two, the ALJ considers the severity of a claimant’s medically determinable
impairments. 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii). If a claimant does not
have an impairment or combination of impairments that significantly limits her ability to
41
do basic work activities, such impairment or impairments are not severe and the claimant
is not disabled. 20 C.F.R. §§ 404.1520(c), 416.920(c); see Kirby v. Astrue, 500 F.3d 705,
707 (8th Cir. 2007) (“Step two of the evaluation states that a claimant is not disabled if his
impairments are not ‘severe.’”). “An impairment is not severe if it amounts to only a slight
abnormality that would not significantly limit the claimant’s physical or mental ability to
do basic work activities.” Kirby, 500 F.3d at 707. Basic work activities include but are
not limited to things like walking, standing, sitting, lifting, reaching, seeing, hearing,
speaking, following instructions, using judgment, responding appropriately to coworkers
and supervisors, and dealing with changes in the work setting. 20 C.F.R. §§ 404.1522(b),
416.922(b). “If the impairment would have no more than a minimal effect on the
claimant’s ability to work, then it does not satisfy the requirement of step two.” Kirby, 500
F.3d at 707. It is Plaintiff’s burden to establish that her chronic pain syndrome singly or in
combination with other impairments is a severe impairment. Id. While this “is not an
onerous requirement . . . , . . . it is also not a toothless standard.” Id. at 708.
As recently observed by a district court in South Dakota, “[w]hether failure to
identify a severe impairment at step two is harmless error or grounds for reversal is a murky
issue in the Eighth Circuit.” Lathrop v. Berryhill, No. 4:18-CV-04025-VLD, 2019 WL
122051, at *16 (D. S.D. Jan. 7, 2019). Analysis generally begins with Nicola, and Plaintiff
has relied on Nicola in this case. In Nicola, the claimant claimed that she was disabled due
to, among other things, borderline intellectual functioning. 480 F.3d at 886. On appeal,
the claimant “assert[ed] that the ALJ erred in failing to include her diagnosis of borderline
intellectual functioning as a severe impairment at step two of the sequential analysis.” Id.
42
at 887. While conceding that the claimant’s borderline intellectual functioning should have
been considered a severe impairment, the Commissioner argued that the ALJ’s error was
harmless. Id. The Eighth Circuit Court of Appeals “reject[ed] the Commissioner’s
argument of harmless error.” Id. The Eighth Circuit observed that “[a] diagnosis of
borderline intellectual functioning should be considered severe when the diagnosis is
supported by sufficient medical evidence.” Id. The Eighth Circuit reversed and remanded
the case for further proceedings. Id.
“[D]istrict courts within the Eighth Circuit are not[, however,] in agreement about
the holding of Nicola.” Lathrop, 2019 WL 122051, at *16 (citing Lund v. Colvin, No. 13cv-113 (JSM), 2014 WL 1153508, at *26 (D. Minn. Mar. 21, 2014) (collecting cases)); see
also Johnson v. Comm’r of Soc. Sec., No. 11-cv-1268 (JRT/SER), 2012 WL 4328413, at
*21 (D. Minn. July 11, 2012), adopting report and recommendation, 2012 WL 4328389
(D. Minn. Sept. 20, 2012). “Some [c]ourts have interpreted Nicola to mean that an error
at step two can never be harmless.” Lund, 2014 WL 1153508, at *26 (citing cases); see
also Johnson, 2012 WL 4328413, at *21. In Johnson, a magistrate judge in this District
noted that such “a broad interpretation of Nicola is inconsistent with the rule in the majority
of other Circuits and the deferential standard afforded to the Commissioner’s
determinations.” 2012 WL 4328413, at *21 (footnote collecting cases from the Second,
Third, Fifth, Sixth, Ninth, Tenth, and Eleventh Circuits). “Other courts, including other
courts in this district, have declined to interpret Nicola as establishing a per se rule that any
error at step two is a reversible error.” Lund, 2014 WL 1153508, at *26 (citing cases); see
also Johnson, 2012 WL 4328413, at *21.
43
This case is distinguishable from Nicola in at least two respects. First, borderline
intellectual functioning is not at issue here. See Lund, 2014 WL 1153508, at *27; Johnson,
2012 WL 4328413, at *21. Second, unlike the claimant in Nicola, Plaintiff did not claim
disability on the basis of chronic pain syndrome, the impairment she asserts was
disregarded. See 480 F.3d at 886. Plaintiff included a number of spinal and mental
impairments in her applications, but not chronic pain syndrome. Plaintiff did not identify
chronic pain syndrome in her pre-hearing statement to the ALJ. (See Tr. 335-37.)
Plaintiff herself states that her “pain arises in large [sic] from severe cervical spine
impairments, which necessitated surgical intervention of an anterior cervical discectomy
at C5-C7.” (Pl.’s Mem. in Supp. at 2.) Likewise, in her pre-hearing statement to the ALJ,
Plaintiff similarly stated that her “subjective allegations of pain stem from objective, severe
cervical spine impairments.” (Tr. 335.) And, as Plaintiff herself recognizes, the ALJ found
and concluded that cervical degenerative disc disease was one of Plaintiff’s severe
impairments.
The diagnosis and treatment of Plaintiff’s chronic pain syndrome is not as
straightforward as the diagnosis and treatment of her depression and cervical degenerative
disk disease. Most often, Plaintiff’s chronic pain syndrome was included as part of her
past medical history rather than a present diagnosis. At the same time, treatment providers
frequently described Plaintiff as having chronic pain in her neck. Additionally, while there
are a couple of instances in which Plaintiff is diagnosed with chronic pain syndrome (such
as, for example, by Dr. Vijayalakshmi), Plaintiff was also diagnosed with and treated for
myofascial pain syndrome.
44
For purposes of these motions, the Court assumes without deciding that Plaintiff’s
chronic pain syndrome is a severe impairment that should have been identified at step two.
Nevertheless, as will be discussed in greater detail below, the ALJ considered Plaintiff’s
pain and its alleged impact on her ability to function when assessing her residual functional
capacity. Consistent with the prevailing view in this District, any potential error by the
ALJ in not including Plaintiff’s chronic pain syndrome as a severe impairment at step two
was harmless based on the ALJ’s consideration of the intensity, persistence, and functional
effects of Plaintiff’s pain when determining her residual functional capacity.
C. Residual Functional Capacity
Plaintiff next argues that the ALJ erred by not considering her chronic pain
syndrome in combination with her depression when determining her residual functional
capacity.
The residual-functional-capacity determination is “an assessment of what
[Plaintiff] can and cannot do, not what he does and does not suffer from.” Mitchell v.
Astrue, 256 F. App’x 770, 772 (6th Cir. 2007); see Martise v. Astrue, 641 F.3d 909, 923
(8th Cir. 2011) (defining residual functional capacity as “the most a claimant can still do
despite his or her physical or mental limitations” (quotation omitted)). A diagnosis alone
is not sufficient. See Perkins v. Astrue, 648 F.3d 892, 899-900 (8th Cir. 2011); Buckner v.
Astrue, 646 F.3d 549, 557 (8th Cir. 2011). The fact “[t]hat a claimant has medicallydocumented impairments does not perforce result in a finding of disability.” Stormo v.
Barnhart, 377 F.3d 801, 807 (8th Cir. 2004). Accordingly, the fact that the record contains
evidence reflecting that Plaintiff has been diagnosed at one time or another with chronic
pain syndrome does not by itself demonstrate that the ALJ erred in this case.
45
When assessing a claimant’s residual functional capacity, the ALJ is required to take
into account “limitations and restrictions imposed by all of an individual’s impairments,
even those that are not ‘severe.’” Policy Interpretation Ruling Titles II and XVI: Assessing
Residual Functional Capacity in Initial Claims, SSR 96–8p, 1996 WL 374184, at *5 (Soc.
Sec. July 2, 1996) [hereinafter SSR 96–8p]; see 20 C.F.R. §§ 404.1545(a)(2) (considering
all medically determinable impairments including those that are not “severe”),
416.945(a)(2). As such, a claimant’s residual functional capacity represents “the most that
she was capable of doing despite the combined effects of both her severe and non-severe
medically determinable impairments.” Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008).
“It is appropriate for the ALJ to take a ‘functional approach’ when determining whether
impairments amount to a disability.” See Stormo, 377 F.3d at 807 (quoting Bowen v.
Yuckert, 482 U.S. 137, 146 (1987)).
1. Consideration of Chronic Pain Syndrome and Depression in
Combination
Plaintiff has not claimed that her chronic pain syndrome individually or in
combination with her depression or any of her other impairments meets or equals a listed
impairment. Rather, Plaintiff argues that “[n]owhere in the ALJ’s residual functional
capacity finding does the ALJ discuss the effect of [her] chronic pain syndrome on her
depression or vice versa.” (Pl.’s Mem. in Supp. at 6.) Yet, Plaintiff does not articulate
what “effect” the ALJ should have discussed. While Plaintiff asserts that “the ALJ simply
dismisse[d her] depression as ‘mild’ or ‘moderate’ in isolation,” (Pl.’s Mem. in Supp. at
6), Plaintiff herself has not specifically identified any particular functional limitations
46
resulting from the combination of her chronic pain syndrome and depression that were not
properly accounted for in the ALJ’s residual-functional-capacity determination. Again, the
fact that Plaintiff has been diagnosed with chronic pain syndrome and that her chronic pain
syndrome constitutes a severe impairment (as the Court has assumed for purposes of the
instant motions), does not perforce result in a finding of disability.
2. Weight Accorded to Dr. Stewart’s Opinions
The thrust of Plaintiff’s argument is that, by not appreciating the interaction between
her chronic pain syndrome and her depression, the ALJ did not properly weigh the opinions
of Dr. Stewart. Plaintiff argues that “it is apparent that Dr. Stewart’s opinions . . . were
made in consideration of the combined effects of [her] chronic pain syndrome and
depression,” (Pl.’s Mem. in Supp. at 7), and “Dr. Stewart makes clear in his opinions that
it is not just [her] ‘depressed mood,’ but also her ‘chronic pain’ that leads to problems with
concentration/focus,” (Pl.’s Mem. in Supp. at 8).
In relevant part, the ALJ found and concluded that Plaintiff “is able to understand,
remember and carry out simple tasks, make simple work-related decisions, and tolerate
changes in a simple work setting.” (Tr. 17.) Plaintiff is also “limited to occasional
interaction with coworkers, supervisors, and the general public.” (Tr. 17.)
Despite Plaintiff’s assertion that Dr. Stewart’s opinions were “exasperatedly
dismisse[d]” by the ALJ, (Pl.’s Mem. in Supp. at 7), the ALJ in fact “accept[ed]” certain
“findings” by Dr. Stewart “and g[a]ve[] them more weight.” (Tr. 21.) Dr. Stewart opined
that Plaintiff was not significantly limited in her abilities to carry out simple instructions,
make simple work-related decisions, and respond appropriately to changes in the work
47
setting. Dr. Stewart also opined that while Plaintiff had some limitations in her social
functioning, including moderate limitations in her abilities to respond appropriately to
supervisors and get along with coworkers, she was not significantly limited in her ability
to get along with the public. (Compare Tr. 539 with Tr. 725.) These opinions are reflected
in and consistent with the ALJ’s residual-functional-capacity determination.
The ALJ did find and conclude, however, that certain portions of Dr. Stewart’s
opinions were inconsistent with his treatment notes and the record as a whole, and thus
entitled to less weight. The ALJ acknowledged that Dr. Stewart opined that Plaintiff
“would likely be off task 25% of the day and miss four or more days per month, resulting
in marked limitations in her ability to complete a normal workday or work week without
interruptions,” and that Plaintiff “is markedly limited in her ability to interact with
supervisors and coworkers.” 15 (Tr. 21.) The ALJ “considered these findings but g[a]ve[]
them less weight,” concluding they were “grossly inconsistent with the record as a whole,
explicitly Dr. Stewart’s own mental status examinations of [Plaintiff].” (Tr. 22.) The ALJ
reasoned:
In fact, during office visits, Dr. Stewart repeatedly describes
[Plaintiff] as polite and cooperative, engaging well with good
eye contact. There is no indication that she reported any
significant struggles getting along with others. Further, Dr.
Stewart also routinely describes [Plaintiff] as having only
“mild” limitations and [Plaintiff’s] treatment has not changed
15
As best as this Court is able to tell, Dr. Stewart opined that Plaintiff had moderate loss or was moderately limited
in her abilities to respond appropriately to supervisors and get along with coworkers, rather than marked limitations
as stated by the ALJ. (See, e.g., Tr. 539 (moderate loss in abilities to accept instructions and respond appropriately
to criticism from supervisors and get along with coworkers and peers), 725 (moderate limitations in her abilities to
accept instructions and respond appropriately to criticism from supervisors and get along with coworkers and
peers).)
48
since the alleged onset date suggesting good management of
her depression.”
(Tr. 22.) Accordingly, the ALJ concluded that these opinions are “inconsistent with the
evidence as a whole and are therefore given less weight.” (Tr. 22.)
There is no dispute that Dr. Stewart is an acceptable medical source who treated
Plaintiff. See 20 C.F.R. §§ 404.1502(a)(1) (identifying licensed physicians as acceptable
medical sources), 416.902(a)(1) (same), 404.1527(a)(2) (“Treating source means your own
acceptable medical source who provides you, or has provided you, with medical treatment
or evaluation and who has, or has had, an ongoing treatment relationship with you.”),
416.927(a)(2) (same). A treating source’s “opinion is entitled to controlling weight when
it is supported by medically acceptable techniques and is not inconsistent with substantial
evidence in the record.” Julin v. Colvin, 826 F.3d 1082, 1088 (8th Cir. 2016); accord Cline
v. Colvin, 771 F.3d 1098, 1103 (8th Cir. 2014).
“Yet[, this controlling] weight is neither inherent nor automatic and does not obviate
the need to evaluate the record as a whole.” Cline, 771 F.3d at 1103 (citation and quotation
omitted). The opinions of treating physicians “are given less weight if they are inconsistent
with the record as a whole or if the conclusions consist of vague, conclusory statements
unsupported by medically acceptable data.” Stormo, 377 F.3d at 806; see Cline, 771 F.3d
at 1103 (permitting the opinions of treating physicians to be discounted or disregarded
“where other medical assessments are supported by better or more thorough medical
evidence, or where a treating physician renders inconsistent opinions that undermine the
credibility of such opinions” (quotation omitted)). When a treating source’s opinion is not
49
given controlling weight, the opinion is weighed based on a number of factors, including
the examining relationship, treatment relationship, opinion’s supportability, opinion’s
consistency with the record as a whole, specialization of the provider, and any other factors
tending to support or contradict the opinion. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2);
Shontos v. Barnhart, 328 F.3d 418, 426 (8th Cir. 2003). The ALJ is required to “give good
reasons” for the weight assigned to a treating source’s opinion.
20 C.F.R.
§§ 404.1527(c)(2), 416.927(c)(2); Cline, 771 F.3d at 1103.
Plaintiff takes issue with the ALJ’s comparison of Dr. Stewart’s opinions to his
treatment notes, asserting such notes present only a partial picture. Plaintiff argues that
Dr. Stewart’s treatment notes speak largely to the nature of
[her] depression, as one would expect when reading the notes
of a treating mental health professional. However, as a medical
doctor who was plainly aware of [her] medical history and
diagnosis of chronic pain syndrome, Dr. Stewart is uniquely
suited to opine upon the limitations arising from the
combination of her physical and mental impairments.
(Pl.’s Mem. in Supp. at 7-8.) Plaintiff further argues that “[t]he mild limitations referenced
on occasion by Dr. Stewart in his treatment notes, made in his capacity as [her] mental
health professional, obviously refer to [her] mental health impairments alone, not the
combined effects of her chronic pain and mental impairments he explicitly opined about in
his opinions.” (Pl.’s Reply at 3.) Plaintiff argues that “Dr. Stewart makes clear in his
opinions that it is not just [her] ‘depressed mood,’ but also her ‘chronic pain’ that leads to
‘problems with concentration/focus.’” (Pl.’s Mem. in Supp. at 8.)
It is well established that “an ALJ may discount a treating source opinion that is
unsupported by treatment notes.” Aguiniga v. Colvin, 833 F.3d 896, 902 (8th Cir. 2016);
50
see, e.g., Anderson v. Astrue, 696 F.3d 790, 794 (8th Cir. 2012) (no error in “minimal
weight” assigned to treating neurologist’s opinion where “the significant limitations
[neurologist] expressed in his evaluation are not reflected in any treatment notes or medical
records”); Martise, 641 F.3d at 925 (“An ALJ may justifiably discount a treating
physician’s opinion when that opinion is inconsistent with the physician’s clinical
treatment notes.” (quotation omitted)); Davidson v. Astrue, 578 F.3d 838, 843 (8th Cir.
2009) (“It is permissible for an ALJ to discount an opinion of a treating physician that is
inconsistent with the physician’s clinical treatment notes.”).
While Dr. Stewart noted that Plaintiff was pursuing treatment to manage chronic
pain, there is no discussion of chronic pain syndrome in his treatment notes or the
interaction between Plaintiff’s chronic pain syndrome and her depression.
Plaintiff
suggests this is because their sessions were focused on her mental health. Yet, when Dr.
Stewart observed Plaintiff to be affected by pain, he noted it. In November 2015, Dr.
Stewart observed that Plaintiff’s positioning and body movements evidenced efforts to
minimize pain. Yet, during the same session, Dr. Stewart also observed that Plaintiff
maintained good eye contact and was engaged in the discussion. Thus, Plaintiff continued
to maintain this level of functioning even when she was experiencing pain and
exacerbations of her depression.
Accordingly, the ALJ did not err in giving less weight to those portions of Dr.
Stewart’s opinions that Plaintiff would be off task more than 25% of the time, absent from
work four or more days per month, and markedly limited in her ability to get along with
supervisors and coworkers when these limitations were undermined by Dr. Stewart’s
51
treatment notes that Plaintiff was pleasant, cooperative, and engaged in their discussions.
See, e.g., Aguiniga, 833 F.3d at 902 (opinion of physician treating claimant’s anxiety
appropriately considered where “ALJ gave [physician’s] opinions some weight where it
was warranted, and discounted it when it was contradicted by a lack of evidence or was
undermined by contrary evidence in the treatment notes”); Anderson, 696 F.3d at 794 (no
err in giving less weight to opinion of treating physician where “the significant limitations
[physician] expressed in his evaluation are not reflected in any treatment notes or medical
records”); Halverson, 600 F.3d at 930 (treating psychiatrist’s opinion properly discounted
where “multiple mental status examinations, including examinations performed by
[treating psychiatrist] revealed no abnormalities, and [claimant] was repeatedly noted to be
alert and oriented with normal speech and thought processes”).
Moreover, the ALJ properly considered Dr. Stewart’s opinions in the context of the
entire record. See 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4); Bernard v. Colvin, 774 F.3d
482, 487 (8th Cir. 2014) (“Since the ALJ must evaluate the record as a whole, the opinions
of treating physicians do not automatically control.”). When a treating physician opines
that a claimant has greater limitations than the claimant “actually exhibits in her daily
living, an ALJ need not ignore the inconsistency.” Anderson, 696 F.3d at 794. And, an
ALJ properly discounts the opinions of a treating physician when such opinions are
“contradicted by or inconsistent with other evidence in the record.” Howe v. Astrue, 499
F.3d 835, 841 (8th Cir. 2007); accord Julin, 826 F.3d at 1088 (opinions of treating
physicians “may be given limited weight if they are . . . inconsistent with the record”). The
ALJ found that these particular limitations were “inconsistent with the evidence as a
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whole,” and noted overall that Plaintiff “is able to engage in activities of daily living that
are generally consistent with that of light unskilled work.” (Tr. 22.) As relevant to
Plaintiff’s ability to concentrate, the ALJ noted that Plaintiff “is able to drive, prepare
meals, shop in stores, watch a two-hour movie, and generally manage finances.” (Tr. 16;
see Tr. 21.) With respect to social functioning, the ALJ noted that Plaintiff “is able to shop
in stores, attend her children’s functions, and appear for medical appointments with no
impact from her mental health impairments,” and “is described throughout her medical
records as being well engaged, polite and cooperative.” (Tr. 16 (citations omitted); see Tr.
21.)
In sum, the ALJ did not dismiss Dr. Stewart’s opinions regarding Plaintiff’s mental
limitations. As reflected in the ALJ’s residual-functional-capacity determination, the ALJ
gave more weight to certain portions of Dr. Stewart’s opinions regarding Plaintiff’s
abilities to perform unskilled work and less weight to those portions that were not
supported by his treatment notes and the evidence in the record as a whole. The ALJ gave
good reasons for the weight assigned to Dr. Stewart’s opinions, and the ALJ’s treatment of
Dr. Stewart’s opinions is supported by substantial evidence in the record as a whole.
3. Subjective Complaints of Pain
Lastly, Plaintiff argues that the ALJ erred in assessing the “credibility” of her
statements regarding her pain.
Plaintiff argues that the ALJ assessed her “pain in
isolation.” (Pl.’s Mem. in Supp. at 8.) Plaintiff’s argument is largely, if not entirely, based
on her contention that the ALJ did not properly consider Dr. Stewart’s opinion.
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In determining a claimant’s residual functional capacity, an ALJ takes into account
subjective symptoms, such as pain, evaluating the intensity, persistence, and limiting
effects of those symptoms. Titles II and XVI: Evaluation of Symptoms in Disability Claims,
SSR 16-3p, 2017 WL 5180304, at *4 (Soc. Sec. Oct. 25, 2017) [hereinafter SSR 16-3p];
see, e.g., Bryant v. Colvin, 861 F.3d 779, 782 (8th Cir. 2017) (“Part of the [residualfunctional-capacity] determination includes an assessment of the claimant’s credibility
regarding subjective complaints.”).
In considering the intensity, persistence, and limiting effects of
an individual’s symptoms, [the ALJ] examine[s] the entire case
record, including the objective medical evidence; an
individual’s statements about the intensity, persistence, and
limiting effects of symptoms; statements and other information
provided by medical sources and other persons; and any other
relevant evidence in the individual’s case record.
SSR 16-3p, 2017 WL 5180304, at *4. Such evaluation includes consideration of “(i) the
claimant’s daily activities; (ii) the duration, frequency, and intensity of the claimant’s pain;
(iii) precipitating and aggravating factors; (iv) the dosage, effectiveness, and side effects
of medication; and (v) the claimant’s functional restrictions.” Vance v. Berryhill, 860 F.3d
1114, 1120 (8th Cir. 2017); see 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3); SSR 16-3p,
2017 WL 5180304, at *7-8.
“Credibility determinations are the province of the ALJ, and as long as good reasons
and substantial evidence support the ALJ’s evaluation of credibility, [courts] will defer to
[the ALJ’s] decision.” Julin, 826 F.3d at 1086 (quotation omitted); see Hensley v. Colvin,
829 F.3d 926, 934 (8th Cir. 2016) (“defer[ring] to an ALJ’s credibility finding as long as
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the ALJ explicitly discredits a claimant’s testimony and gives a good reason for doing so”
(quotation omitted)).
First, to the extent Plaintiff argues that her subjective complaints of pain were not
properly considered based on Dr. Stewart’s opinions, the Court has already determined that
the ALJ’s treatment of Dr. Stewart’s opinions is supported by substantial evidence in the
record as a whole.
Therefore, while medical opinions like Dr. Stewart’s are one
consideration in evaluating the intensity, persistence, and limiting effects of Plaintiff’s
pain, such opinions are not the only consideration. See 20 C.F.R. §§ 404.1529(c)(1),
416.929(c)(1); SSR 16-3p, 2017 WL 5180304, at *4-7
Second, the ALJ plainly did not consider Plaintiff’s pain in “isolation.” In finding
and concluding that Plaintiff’s pain was not as intense, persistent, and limiting as she
alleged, the ALJ took into account the very factors contemplated by the regulations. The
ALJ considered the objective medical evidence.
See 20 C.F.R. §§ 404.1529(c)(2),
416.929(c)(2). Discussing Plaintiff’s treatment for neck pain, the ALJ reasoned that, while
continued pain, tenderness, and tightness following her fusion surgery warranted some
limitations, Plaintiff still demonstrated normal strength and sensation in her upper
extremities. The ALJ similarly observed that “the generally normal examinations” with
Dr. Stewart did not support that Plaintiff “would likely miss three or more days of work
per month, be markedly limited in her ability to maintain attention, and/or be off tasks more
than 10% during the day as proposed at the hearing by the representative.” (Tr. 21.)
The ALJ also took into account Plaintiff’s daily activities, determining that they did
not support greater limitations. 20 C.F.R. §§ 404.1529(c)(3)(i), 416.929(c)(3)(i). Among
55
other things, the ALJ noted that Plaintiff prepares meals a few days per week, attends
school functions for her children, completes “lighter household chores,” assists in the care
of a grandchild, reads, shops in stores, visits with family, watches movies on occasion, and
is generally able to manage her finances. (Tr. 21.)
In addition, the ALJ considered Plaintiff’s course of treatment for both her physical
and mental health. See 20 C.F.R. §§ 404.1529(c)(3)(iv), (v), 416.929(c)(3)(iv), (v). For
example, the ALJ observed Plaintiff had “been advised of other available medications to
treat her depression and even individual therapy if she felt it was needed” but she did “not
engage in these treatment modalities,” which suggested that Plaintiff “was generally
content with her treatment.” (Tr. 20-21.)
Further, the ALJ also took into account Plaintiff’s work history.
See 20
C.F.R. §§ 404.1529(c)(3)(vii), 416.929(c)(3)(vii). A lengthy work history can support
complaints of disabling pain. Black v. Apfel, 143 F.3d 383, 387 (8th Cir. 1998). The ALJ
recognized that Plaintiff’s “earning records reflect [she] has a positive work history as . . .
she has yearly earnings above substantial gainful activity in the years prior to the alleged
onset date,” which “suggests good work motivation.” (Tr. 21.) While “accept[ing] that
[Plaintiff’s] past job as an embroider[er] exacerbated her pain due to repetitive motions,”
the ALJ additionally pointed out, however, that “the record does not reflect that [Plaintiff]
has ever attempted work that would fall within the residual functional capacity.” (Tr. 21
(citation omitted).)
Here, the ALJ provided good reasons for not finding Plaintiff’s subjective
complaints of pain as intense, persistent, and limiting as alleged. The ALJ’s discussion of
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the objective medical evidence as well as Plaintiff’s daily activities, course of treatment,
and work history demonstrates that Plaintiff’s subjective complaints of pain were
considered within the proper framework and not in insolation. The ALJ’s assessment of
Plaintiff’s subjective complaints of pain is supported by substantial evidence in the record
as a whole.
VII. ORDER
Based upon the record, memoranda, and the proceedings herein, IT IS HEREBY
ORDERED that:
1. Plaintiff’s Motion for Summary Judgement (ECF No. 13) is DENIED.
2. The Commissioner’s Motion for Summary Judgment (ECF No. 15) is
GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: March
27
, 2019
s/ Tony N. Leung
Tony N. Leung
United States Magistrate Judge
District of Minnesota
Rosalind J. G. v. Berryhill
Case No. 18-cv-82 (TNL)
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