Naeger v. Astrue

Filing 17

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed, and plaintiffs Complaint is dismissed with prejudice. Signed by Magistrate Judge Frederick R. Buckles on 9/26/2013. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
DENISE NAEGER,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,1 Commissioner )
of Social Security,
)
)
Defendant.
)

Case No. 1:12CV13 FRB

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff Denise
Naeger’s appeal of an adverse decision of the Social Security
Administration.

All matters are pending before the undersigned

United States Magistrate Judge, with

consent of the parties,

pursuant to 28 U.S.C. § 636(c).
I.

Background and Procedural History

Plaintiff Denise Naeger applied for Disability Insurance
Benefits (“DIB”) pursuant to Title II, and Supplemental Security
Income pursuant to Title XVI, of the Social Security Act, 42 U.S.C.
§§ 401, et seq. (also “Act”), alleging that she became disabled on
January 6, 2009.

(Administrative Transcript (“Tr.”) at 180-189).

Plaintiff’s applications were denied, and she requested a hearing

1

Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Carolyn W. Colvin should
therefore be substituted for Michael J. Astrue as the defendant
in this case. No further action needs to be taken to continue
this suit by reason of the last sentence of 42 U.S.C. § 405(g).
- 1 -

before an administrative law judge (“ALJ”), which was held on
August 10, 2011.
On
decision.

(Tr. 28-73).

August
(Tr.

25,

2011,

81-105).

subsequently submitted.

the

ALJ

However,

issued

an

additional

unfavorable

evidence

was

This additional evidence, which consists

of an August 31, 2011 letter from Steven A. Harvey, M.D., appears
in the administrative transcript at page 685.

The ALJ re-opened

plaintiff’s case “in order to give that additional evidence careful
consideration.”

(Tr. 11).

After doing so, the ALJ issued a second

unfavorable decision on November 7, 2011.

(Tr. 8-27).

On January

3, 2011, defendant agency’s Appeals Council denied plaintiff’s
request for review, and the ALJ’s decision thus stands as the
Commissioner’s final decision subject to review in this Court.

42

U.S.C. § 405(g).
The issues that plaintiff has submitted for judicial
review in this case are that the ALJ erred in determining that
pustular psoriasis was not a severe impairment, and that the ALJ
erred in discounting opinion evidence from plaintiff’s psychiatrist
(Dr. Harvey) and therapist (Maureen Lenz), and from plaintiff’s
treatment provider Nurse Practitioner Mary Ann McCullough.
II.
A.

Evidence Before The ALJ

Plaintiff’s Testimony
Plaintiff first responded to questions posed by the ALJ.

Plaintiff testified that she is a high-school graduate, and had
been married for 27 years.

(Tr. 32).

She lived with her husband

and their two adult children, and had medical insurance through her
- 2 -

husband’s employment.

(Tr. 33).

Her work history included work as an assembler of binders
of vinyl siding samples, a job she quit because she “had a
supervisor that constantly harassed me.”

(Tr. 34).

In addition,

she worked for Silvanus Products for eight years, making binders
and checkbook covers.

(Tr. 35).

She worked in the meat department

of Rozier’s Country Mart, where she wrapped meat, stocked shelves
and waited on customers, and worked for Oberle Meats, performing
essentially the same job.

(Tr. 35-36).

She also worked for

National Vinyl Products (also “NVP”) making binders with hot glue
and white glue.

(Tr. 35-36).

She quit working for National Vinyl Products because she
“was tired of making binders” and because a work friend “turned” on
her and talked about her behind her back.

(Tr. 36-37).

She quit

working for Rozier’s Country Mart because her “husband wouldn’t
leave [her] alone about only working four days a week and only
making $6.45, and [asked her] to find another job, which is when
[she] went to NVP.”

(Tr. 37).

She quit her job at Oberle Meats

because a coworker “read [her] the Riot Act” in front of someone.
(Id.)
Plaintiff

also

worked

for

Silo

Incorporated,

a

residential care facility, as a “level one med aid” handing out
medications, cleaning, cooking, washing dishes, and dealing “with
the outbursts that the residents had.”

(Id.)

She also worked for

a health care company called Marian Cliff until she was fired for
refusing

to

crush

a

patient’s

pills.

- 3 -

(Tr.

38).

Plaintiff

testified that this occurred on January 6, 2009, her alleged onset
date.

(Tr. 40).

Plaintiff’s most recent job was for a home health

care company called Victor’s Home Health.

(Tr. 39).

Plaintiff

testified that she quit this job after noticing that her paycheck
was eight hours short and arguing with her supervisor about it.
(Tr. 39).
Plaintiff then responded to questions from her attorney.
She testified that Dr. Harvey told her that she should not work
anymore because she “was too stressed out” and “could not deal with
other people” and that she did “not have a working ability at this
time.” (Tr. 41).
shook,

she

Plaintiff testified that, when stressed, her leg

twisted

and

pulled

on

her

hair,

cigarettes, and sometimes screamed at everyone.

paced,

(Id.)

smoked

Plaintiff

testified that she was presently stressed because she was losing
her home, and because of a girlfriend who irritated her.
42).

(Tr. 41-

She stated that her leg sometimes shook for an hour or more.

(Tr. 42).
Plaintiff testified that she was hospitalized due to
stress after being fired.

(Id.)

She stated that she saw Dr.

Harvey once every three or six weeks.

- 4 -

(Tr.43).

She stated that

she took Lamictal,2 Lexapro,3 and Abilify,4

and that the drugs did

not cause side effects and in fact she was “doing okay” on them.
(Tr. 44).

Plaintiff testified that she also saw a counselor every

three to four weeks.

(Id.)

Plaintiff testified that she did not sleep well and felt
insecure when her husband was away because she had been molested as
a child, and therefore disliked being alone.

(Tr. 45).

Plaintiff

testified that she experienced crying spells once or twice per
week, which she attributed to her thoughts of how her mother
treated her and her brother.

(Tr. 45-46).

Plaintiff testified that she did not go grocery shopping
because she could not adhere to a list, and instead bought things
she wanted that her husband did not want her to buy.

(Tr. 46).

She testified that her girlfriends told her that she jumped from
subject to subject, and that her husband took care of household
bills because she was bad at math.

(Id.)

She was able to keep

track of doctor’s appointments, but sometimes
medication.

(Id.)

forgot to take

She stated that she sometimes burned food

2

Lamictal, or Lamotrigine, is an anticonvulsant that is used
to decrease abnormal activity in the brain. It is prescribed for
various conditions, including epilepsy and bipolar disorder.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a695007.html
3

Lexapro, or Escitalopram, is used to treat depression and
generalized anxiety disorder.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a603005.html
4

Abilify, or Aripiprazole, is an atypical antipsychotic
medication that changes the activity of certain natural
substances in the brain. It is prescribed for various
conditions, including schizophrenia and mood disorders.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a603012.html
- 5 -

because she needed to walk away from the stove.

(Tr. 48).

Plaintiff testified that vacuuming pulled on her back and right
hip, and that her son did the laundry.

(Id.)

Plaintiff testified that she had symptoms in her lower
back if she stood in the same place for five to ten minutes.
48).

(Tr.

She did not drive out of town, and stated that she did not

have a driver’s license until 2003, when she got over the fear of
driving and her niece taught her to drive.

(Tr. 49).

Plaintiff

stated that she showered a maximum of once per week, and stayed in
her pajamas because they were more comfortable than clothes, and
because she did not feel like going anywhere.

(Id.)

When asked to describe a typical day, plaintiff testified
that she rose at 5:00 and talked to her sister on the telephone.
(Tr. 50).

She then used the computer to play games “or whatever,

you know, I’m doing that day.”

(Id.)

She returned to bed at 6:30

or 7:00 and slept for another hour and one-half to two hours, and
then watched television.

(Id.)

She took the dogs out if her

husband was not there, and then watched television.

(Tr. 50-51).

She testified that she got along with her sister and a girlfriend,
but did not like being around more than three people at once.

(Tr.

51).
When

asked

to

describe

her

past

interactions

with

supervisors, plaintiff testified that, at Silvanus, the supervisors
talked about her within earshot, which plaintiff found frustrating
and irritating.

(Tr. 52).

She testified that one supervisor at

Silvanus did not like her, and that plaintiff put up with her for
- 6 -

four years before quitting.

(Id.)

When asked to explain her

earlier statement about a work friend turning on her, plaintiff
explained that, while she was “punching” orders, the friend altered
the mechanism so that the orders were punched incorrectly, and
plaintiff was reprimanded.

(Tr. 53).

Plaintiff testified that she could no longer work in home
health care because of the behavior of the residents, and described
an

incident

in

which

threatened to hurt her.

a

resident

(Tr. 54-55).

trapped

her

in

a

room

and

When asked why she could not

perform a job where she did not have to be around a lot of people,
plaintiff testified: “[b]ecause - - I don’t know.
don’t know.

I don’t know how to answer that.”

I get - - I

(Tr. 55).

When

asked whether she could do something else, some line of work that
did not involve being around a lot of people, plaintiff testified:
“I don’t know if I could or not.

I don’t - - I mean, just dealing

with anybody at this time, I can’t do.
disgusted with people.

I am really - - I am so

That’s why I don’t leave my house.

want to be around people most of the time.
[sic] with my husband and my sons.”

I don’t

And I even trouble

(Id.)

Plaintiff testified that she used to smoke marijuana to
deal “with everything” but had not smoked marijuana since May of
2011 (about three months before the administrative hearing).
55-56).

(Tr.

Plaintiff testified that Dr. Harvey had told her that

smoking marijuana would impact the efficacy of her psychiatric
medications, and plaintiff noticed a big difference
stopped.

(Tr. 56).
- 7 -

when she

Plaintiff testified that she had a “bad [right] hip” due
to a fall down stairs and that, sometimes when walking, she would
feel pinching and pain down her leg and up through her spine.
57, 58).

(Tr.

She testified that she was able to walk down a hill near

her home, but then needed to sit to allow her back to rest before
resuming walking.

(Tr. 57).

She did not have trouble sitting if

her feet were flat on the ground.

(Id.)

She could lift and carry

20 pounds, but doing so sometimes pulled on her right hip.

(Tr.

57-58).
The ALJ asked plaintiff whether there was anything else
he needed to know regarding disability, why plaintiff believed that
she could not work, and plaintiff replied that her record spoke for
itself, that she had been unable to hold a job for more than a few
months, and that she had pushed herself to remain at Silvanus for
as long as she did.
bronchitis,”
medicine.

and

(Tr. 58).

stated

that

Plaintiff also stated “I get

she

used

an

inhaler

and

asthma

(Id.)
The ALJ then heard testimony from John Stephen Dolan, a

vocational expert (also “VE”).

Mr. Dolan classified plaintiff’s

past work and, after considering hypothetical questions posed by
the ALJ, testified that the hypothetical individuals could perform
plaintiff’s past work as a bindery worker, as well as several other
occupations, including dishwasher, housekeeper/cleaner, poultry
eviscerator, and store laborer.

(Tr. 59-66).

responded to questions from plaintiff’s attorney.

Mr. Dolan also
(Tr. 67-69).

Plaintiff then testified that, due to pustular psoriasis
- 8 -

on her hands, she could not expose her hands to chemicals or water,
and could not wear latex gloves.
questioning

from

the

ALJ,

Mr.

(Tr. 69-70).

Dolan

Upon further

testified

that

such

a

limitation would preclude an individual from performing work as a
dishwasher,

and

would

reduce

by

three-fourths

the

number

housekeeper/cleaner jobs that the individual could perform.

of

(Tr.

70).
B.

Medical Records
From April of 2008 through July 2008, plaintiff was

treated at River City Health Clinic, and was seen by Clinical
Psychologist

Debra

Rau,

Ph.D.

(Tr.

376-85).

Plaintiff

diagnosed with depression, and prescribed medications.

was

(Id.)

Records from Southeast Missouri Hospital indicate that plaintiff
was hospitalized on June 30, 2008 after appearing for an outpatient
appointment complaining of increasing depression, anxiety, and
suicidal thinking after being dismissed from her job that day.
(Tr.

338,

340).

Plaintiff

reported

smoking

three

cigarettes per day, and smoking marijuana. (Tr. 340).
history

was

noted

to

include

psoriasis,

of

Her medical

borderline

mellitus, fatty liver, and chronic low back pain.

packs

diabetes

(Id.)

She

reported poor sleep, stating that she woke up during the night and
smoked and drank coffee, which the examiner noted was “antithetical
to sleep.” (Id.) Plaintiff reported being overwhelmed with stress
due to long working hours and to the fact that her sons, ages 22
and 19, lived with her and argued and fought all of the time, and
did not contribute to the household.
- 9 -

(Tr. 342).

Laboratory

evaluation

revealed

including liver function.

(Tr. 338).

positive

pain

for

cannabis

and

a

normal

profile,

Urine drug screen was

medication.

(Id.)

Physical

examination was negative, and mental status evaluation revealed a
depressed mood and constricted affect, but was otherwise normal.
(Tr. 343).

She was discharged on July 2, 2008, at which time she

was considered a low risk for suicide.
were adjusted.

(Tr. 338).

Her medications

(Tr. 343).

Records from Advanced Psychiatric Services indicate that
plaintiff was seen on several occasions for counseling sessions
from July 22, 2008 to January 22, 2009.

(Tr. 412-32).

On March 23, 2009, Joan Singer,

Ph.D., completed a

Psychiatric Review Technique form. (Tr. 463-73). Dr. Singer noted
that plaintiff did not report her activities of daily living and,
when called, reported that she had returned to work.

(Tr. 473).

Dr. Singer concluded that plaintiff did “not wish to proceed” with
her claim and wanted a “decision on info in file.”

(Id.)

Dr.

Singer determined that there was insufficient evidence, and denial
was appropriate.

(Id.)

Records from St. Louis Public Schools indicate that
plaintiff did not receive special education services.

(Tr. 475).

On September 2, 2009, plaintiff saw Nurse Practitioner
Mary McCullough at the Ste. Genevieve County Memorial Hospital
Physicians’ Clinics with complaints of isolating herself, not
wanting to be around her family or friends, fluctuating between
crying and laughing, unstable mood, anxiety, irritability, anger,
- 10 -

sleep disturbance, sadness, decreased concentration, weight gain,
appetite change, depression, suicidal thoughts, marijuana use, and
compulsive behaviors.

(Tr. 484, 486).

Plaintiff recounted her

2008 hospitalization and subsequent therapy, and stated that she
had been off of her psychiatric medication “for months.”
484).

(Tr.

(Tr.

Upon examination, she was alert and oriented but anxious.
487).

plaintiff’s

Physical
skin,

examination,

was

normal.

including

(Tr.

examination

of

Plaintiff

was

486-87).

referred for therapy, and given medication.

(Tr. 488).

Plaintiff returned to Nurse McCullough on October 2, 2009
with complaints of a rash on her breast and trunk for the past two
weeks.

(Tr. 480).

Nurse McCullough wrote “Cymbalta vs fleas.”

Plaintiff reported that she was a smoker.

(Id.)

(Id.)

Upon

examination, Nurse McCullough observed a large plaque lesion with
scale

on

lesions

plaintiff’s

on

right

plaintiff’s

chest,

trunk.

and

(Tr.

scattered,

482).

Nurse

fine-scaled
McCullough

diagnosed plaintiff with Pityriasis Rosea, which she told plaintiff
was a self-limiting condition that should resolve on its own in six
to 12 weeks with no treatment or medication.

(Tr. 483).

On December 8, 2009, plaintiff saw psychiatrist Steven A.
Harvey, M.D., of Allied Behavioral Consultants with mood, anxiety
and

cognitive

complaints.

(Tr.

535).

Plaintiff

could

not

articulate her complaint, but complained a lot about stressors in
her life and complained that she could not process information and
could not hold a job.

(Id.)

Dr. Harvey noted that plaintiff

began smoking marijuana (for which Dr. Harvey used the abbreviation
- 11 -

“mj”) as a teenager and currently smoked marijuana heavily, but did
not feel she had a problem with it.

(Id.)

Plaintiff stated that

her son thought she was a “pot head” but that she just had “a
couple of hits this morning.”

(Id.)

Plaintiff stated that she

once stopped smoking marijuana for two to three weeks.

(Tr. 535).

Dr. Harvey wrote: “[l]ater she said that she quit for yrs, but she
only claimed that - - as a change of story - - after I started
bringing up mj as a cause of her mood problems.”

(Id.)

Plaintiff

reported that both of her children lived at home and that the older
one was not working but she could not kick him out.

(Tr. 536).

Plaintiff reported that she was not working and “thinks she won’t
go back to work.”

(Id.)

Dr. Harvey noted that plaintiff was hard to talk to
because

she

was

scattered.

(Id.)

Dr.

plaintiff’s hygiene and grooming were good.
alert and fully oriented.

(Tr. 536).

Harvey
(Id.)

noted

that

Plaintiff was

Dr. Harvey diagnosed

plaintiff with depression and cognitive problems not otherwise
specified and, after both, questioned whether the conditions were
substance-induced.

(Id.)

He

also

diagnosed

plaintiff

with

marijuana dependence, and instructed plaintiff to abstain from
marijuana.

(Id.)

He assessed plaintiff’s global assessment of

functioning (“GAF”)5 score as 50.

(Id.)

5

The GAF score is the clinician’s judgment of the
individual’s overall level of functioning. See Diagnostic and
Statistical Manual of Mental Disorders, Text Revision 34 (4th ed.
2000). GAF scores of 41 to 50 represent serious symptoms or
impairment in social, occupational or school functioning; scores
of 51 to 60 represent moderate symptoms or difficulty in those
- 12 -

Dr. Harvey wrote: “[b]ottom line – likely large portion
of her complaints are mj-induced” and that plaintiff’s problems
would

not

improve

marijuana.

with

medication

if

she

continued

to

smoke

(Tr. 535).
Plaintiff returned to Dr. Harvey on February 18, 2010,

and reported doing poorly and that “[p]eople piss me off . . .”.
Plaintiff was still using marijuana.

(Id.)

Dr.

Harvey’s examination and diagnoses were unchanged.

(Id.)

Dr.

(Tr. 533).

Harvey prescribed Lexapro.

(Tr. 534). She returned on March 18,

2010 and reported that, after her father’s recent death, she used
a lot of marijuana but then stopped, and had been clean for 22
days.

(Tr. 532).

Dr. Harvey noted that plaintiff was better, and

was able to carry on a conversation.

(Id.)

His diagnoses were

unchanged, but he assessed plaintiff’s GAF as 70.

(Id.)

She

returned on June 10, 2010, and Dr. Harvey wrote: “[b]etter!
really better with Abilify.
better.”

(Tr. 574).

She is surprised.

Pt

Feels a lot

Dr. Harvey’s diagnoses were the same, but he

assessed plaintiff’s GAF as 70.

(Id.)

On May 5, 2010, plaintiff was seen by Maureen Lenz, MS,
LCSW.

(Tr. 627).

Plaintiff’s “Presenting Problem” was noted as:

“[w]ant to get disability.

I can’t work.

Plaintiff

angry

reported

being

and

I hate people.”

depressed

all

the

(Id.)
time,

complained of “back pain from arthritis,” stated that she had
carpal tunnel syndrome, claimed she could not sleep, and thought

areas; and scores of 61 to 70 represent mild symptoms with a
reasonably good level of functioning. (Id.)
- 13 -

she was bipolar.

(Id.)

Plaintiff was angry with certain family

members, including her mother and her older son.
harming

herself

financial,

or

physical,

others.

(Tr.

628).

interpersonal,

and

(Id.)

She denied

Plaintiff
vocational

reported

stressors,

reported that she had taken learning disabled classes, and reported
that she was facing foreclosure and could not meet expenses.

(Tr.

628-29, 631).

She reported that she smoked marijuana whenever she

could get it.

(Tr. 630).

Plaintiff reported that she did leather

work and crochet, and spent time on the computer.
Upon

examination,

Ms.

Lenz

noted

(Tr. 632).

that

plaintiff’s

appearance and speech were normal, that plaintiff was angry, bitter
and resentful, denied suicidal intent, ate a high fat diet, and had
poor insight.

(Tr. 633).

She diagnosed plaintiff with depressive

disorder not otherwise specified and possible personality disorder,
and assessed a GAF of 50.

(Id.)

X-rays of the lumbar spine, performed on May 17, 2010,
revealed mild L5-S1 facet arthritis and bilateral degenerative
sacroiliitis.

(Tr. 551).

Cervical spine x-ray performed on May

26, 2010 was interpreted as normal.

(Tr. 550).

thoracic

2010

spine

performed

on

May

28,

MRI of the

revealed

suspected

preexisting spondylosis related osteophytosis producing minimal
cord impingement but no displacement.

(Tr. 545).

MRI of the

lumbar spine performed on this date revealed no acute lumbosacral
spine disease.

(Tr. 546).

Plaintiff returned to Ms. Lenz on May 28, 2010.

When

asked why she could not work now, plaintiff replied “I hate people”
- 14 -

and then laughed “[t]o try to get rid of the anger.”

(Tr. 643).

Plaintiff was resentful and guilty, and stated that her family had
no money, which was her fault for not working and for spending
money irresponsibly, such as on marijuana.

(Id.)

Ms. Lenz noted

that plaintiff burped loudly and said shocking things.

(Id.)

On

June 10, 2010, Ms. Lenz noted that plaintiff’s affect was angry,
and that plaintiff reported that all the wrong things had been done
to her.

(Tr. 644).

Stressors included finances, clutter, and the

fact that her older son did not do anything.

(Id.)

Plaintiff

reported that her husband would not let her drive or buy anything,
and plaintiff used marijuana and sleep as coping mechanisms. (Id.)
On June 17, 2010, plaintiff was irritable and angry, and Ms. Lenz
wrote that plaintiff’s stressors were perhaps of her own making.
(Tr. 645).
On June 11, 2010, plaintiff saw Nurse McCullough and
reported that taking deep breaths caused squeezing in her chest and
upper abdomen.

(Tr. 608).

There is also the notation that

plaintiff had a new mental diagnosis of borderline personality
disorder, although the origin of this diagnosis is not mentioned.
(Id.)
610).

Upon examination, plaintiff appeared comfortable.

(Tr.

Wheezing was noted, but the remainder of Nurse McCullough’s

examination, including psychiatric examination, was normal.
610-11).

(Tr.

Nurse McCullough wrote that she “strongly advised”

plaintiff to stop smoking, but that plaintiff reported that she was
“not ready at this time.”

(Tr. 612).

Plaintiff returned to Nurse

McCullough on June 22, 2010 and reported that she was currently
- 15 -

undergoing physical therapy for chronic back pain, and described an
incident in which she “tried to push a car out of the yard” and
“felt a ‘pop’ and then immediate severe pain in the lumbar spine
region” that radiated across her back.

(Tr. 603).

Plaintiff

reported that she could not sit, lie, bend or walk without pain,
and that she felt best when lying on the couch with her legs
elevated.
acutely

(Id.)

Upon examination, it was noted that she was

uncomfortable,

she

had

decreased

flexion,

extension,

bending, and rotation, and she was tender over the paraspinous
muscles.

(Tr. 605).

(Tr. 606).

Straight leg raise testing was positive.

She had normal strength in her extremities.

was diagnosed with low back pain.

(Id.)

(Id.)

She

X-rays of plaintiff’s

chest, performed on June 22, 2010 at Ste. Genevieve County Memorial
Hospital, were negative.

(Tr. 619).

In June and July of 2010, plaintiff underwent physical
therapy at Mid America Rehab.

(Tr. 563-72).

On July 15, 2010, plaintiff saw Ms. Lenz and reported
“[n]ot much going on.”

(Tr. 647).

She reported missing her late

father and feeling upset about how a sister had treated her.

(Id.)

On July 22, 2010, plaintiff reported that she was smoking marijuana
again, and that her relationship with her sister was improving.
(Tr. 648).
complained

On July 29, 2010, Ms. Lenz noted that plaintiff
and

blamed;

had

no

interests

and

no

job;

had

a

dysfunctional life in that she had money and family problems; and
was unpleasant to others in that she “burp[ed] indiscriminately”
and lifted “her shirt to expose her fat belly and then laughs.”
- 16 -

(Tr. 649).
On July 29, 2010, plaintiff saw Dr. Harvey and reported
life stressors, including being turned down for disability.
573).

Plaintiff

reported

being

fairly

compliant

with

(Tr.
her

psychiatric medications, and reported smoking marijuana for about
one week.

(Id.)

Dr. Harvey’s diagnoses were the same, and he

assessed plaintiff’s GAF as 75.
medication slightly.

(Id.)

He adjusted plaintiff’s

(Id.)

On August 26, 2010, plaintiff saw Ms. Lenz who noted that
plaintiff

gave

her

“usual

stressors and complaints.

litany”

(Tr. 651).

and

reported

the

“usual”

Plaintiff reported that she

was still twisting and pulling her hair, but Ms. Lenz wrote that
she neither witnessed that behavior nor saw evidence that it had
occurred.

(Id.)

Ms. Lenz wrote that she explained a type of

therapy to plaintiff, but plaintiff would not listen.

(Id.)

In a letter dated August 9, 2010, Dr. Harvey wrote:
Full-time employment is out of the questions
[sic] for Ms. Naeger.
She is not able to
work, due to her mental condition. Employment
is even more out of the question now, due to
the current economy and job market.
(Tr. 575).
In a letter addressed to plaintiff and dated August 26,
2010, Ms. Lenz wrote:
This letter is to confirm what we have
discussed in my office on several occasions.
It is not possible for you to work as an
employee at this time.
Your mood is too
labile for you to sustain employment if you
- 17 -

were even able to obtain a job.
(Tr. 650).
On August 31, 2010, plaintiff saw Nurse McCullough with
complaints of episodic spasms on the left side of her back, and a
nodule on the right side of her neck.

(Tr. 597).

Plaintiff

reported that she had quit physical therapy because it was not
working,

and

that

she

was

not

doing

the

exercises.

(Id.)

Plaintiff reported that Darvocet and Soma helped, and she needed
refills.

(Id.)

Musculoskeletal examination revealed decreased

range of motion, but was otherwise normal.

(Tr. 600).

Psychiatric

examination revealed that plaintiff was alert and oriented, and no
other findings were noted.

(Id.)

Plaintiff was diagnosed with

hyperlipidemia, abnormal weight gain, and low back pain, and told
to exercise.

(Tr. 600-01).

On September 2, 2010, plaintiff saw Ms. Lenz, who noted
that plaintiff bought marijuana instead of continuing one of her
medications.

(Tr. 652).

throughout the session.

Ms. Lenz wrote that plaintiff doodled
(Id.)

On September 9, 2010, Ms. Lenz

noted that plaintiff was not following a cholesterol-free diet and
was not doing what her doctors told her, stating “why should I.”
(Tr. 653).
On October 7, 2010, plaintiff saw Ms. Lenz and was
excited about her recent accomplishments in crochet work.
654).

Ms.

Lenz

encouraged

discontinue drug use.

plaintiff

to

continue

crafts

(Tr.
and

(Id.)

On October 8, 2010, plaintiff saw Dan Frissell, M.D., of
- 18 -

Ste. Genevieve County Memorial Hospital Physicians’ Clinics, and
reported having been in a motor vehicle accident.

(Tr. 589).

Plaintiff complained of pain in the right side of her lower back
going up to her neck and upper back, with no radiation into the
buttock or legs.

She was diagnosed with back pain,

(Id.)

cervicalgia, obesity and tobacco use disorder, and instructed to
follow up if her symptoms did not improve.

(Tr. 594-95).

On October 21, 2010, plaintiff returned to Ms. Lenz and
was happy, and reported using coping mechanisms of shopping and
dining out.

(Tr. 656).

Plaintiff expressed frustration that her

house was cluttered and dirty and stated her intent to let a friend
help her clean, but that her husband objected to this out of
concern that she would throw away his belongings.
refused couples therapy.
expressed

frustration

(Id.)

that

her

(Id.) Plaintiff

On October 28, 2010, plaintiff
husband

would

not

buy

craft

supplies, but on November 4, 2010 reported feeling good that she
and a friend had cleaned her kitchen, organized, and thrown away
clutter.

(Tr. 658).

Plaintiff reported that she stayed energized

while she had this project to focus on, and that boredom and poor
social and parenting skills were sources of stress.

(Id.)

In the

“Plan” section of the treatment note, Ms. Lenz wrote: “[n]eeds to
work for better health - what kind of jobs where her hatred for
people doesn’t get in the way?”

(Id.)

Also on November 4, 2010, plaintiff saw Dr. Harvey and
reported “mostly doing ok.”

(Tr. 677).

She reported that she was

seeing Ms. Lenz for therapy and doing leather work.
- 19 -

(Id.)

She

also reported that her cat had died, but that she was fine.
Dr.

Harvey

diagnosed

plaintiff

with

depression

not

(Id.)

otherwise

specified, but questioned whether it was most likely substance
induced.

(Id.)
Plaintiff returned to Ms. Lenz on November 11, 2010, and

reported

doing

well

and

talking

with

a

friend

mechanism, and complained that she was bored.

as

a

coping

(Tr. 659).

She

reported that she received a settlement from an accident, but it
(Id.)

Ms. Lenz wrote that she tried

to encourage family therapy. (Id.)

On November 18, 2010 plaintiff

was less than they thought.

complained about her adult son who lived with her and did not work
or attend school, and plaintiff did not want to help him get
treatment.

(Tr. 660).

Under “psychosocial stressors” Ms. Lenz

wrote: “many of her own making.”

(Id.)

Ms. Lenz wrote that

plaintiff was “entitled and dependent” and wrote that she wanted to
try to get plaintiff to accept responsibility for her status.
(Id.)
On November 19, 2010, plaintiff saw Nurse McCullough with
complaints of left lateral abdominal pain and knot.

(Tr. 583).

Plaintiff also complained of back pain when coughing and stress
incontinence,

but

denied

skin

lesions

and

rash.

(Tr.

586).

Examination was normal with the exception of a tender soft mass in
the left lateral abdomen, and plaintiff was diagnosed with a
possible hernia.

(Tr. 586-87).

An ultrasound of the abdomen,

performed on November 22, 2010 at Ste. Genevieve County Memorial
Hospital, was unremarkable.

(Tr. 617).
- 20 -

On December 2, 2010, plaintiff reported that she hated
everyone, especially her mother, sister and son, and was stressed
about the lack of money, boredom, and disappointment in life. (Tr.
661).

Ms. Lenz wrote: “I cannot support this client’s bid for

disability when she is choosing to stay dependent and entitled.”
(Id.)
CT

of

plaintiff’s

abdomen

and

pelvis,

performed

December 7, 2010 at Ste. Genevieve County Memorial

on

Hospital,

revealed fatty infiltration of the liver, but no acute findings.
(Tr. 613).
On December 9, 2010, plaintiff saw Ms. Lenz and reported
that family members had accused her of stealing her father’s
leather work.

(Tr. 662).

Ms. Lenz wrote that plaintiff felt

entitled to it, and was pouting and defensive.

(Id.)

was stressed about money, boredom, and her status.

(Id.)

Plaintiff
Ms. Lenz

wrote that, instead of resolving issues, plaintiff only tried power
struggles or “cut-offs.”

(Id.)

Ms. Lenz wrote that plaintiff

essentially said “f— off” and “I’m through with those people,” and
showed no interest in conflict resolution skills.

(Tr. 662).

On December 13, 2010, plaintiff saw Nurse McCullough.
(Tr. 577).

In the section of Nurse McCullough’s treatment note

reserved to record plaintiff’s complaints and the reason she came
to the office for care, Nurse McCullough wrote that plaintiff was
there to get papers for disability.

(Id.)

It is noted that

plaintiff had hired a disability specialist group to try to obtain
disability for mental issues.

(Id.)
- 21 -

In the section marked “Coded

Allergies,”

Nurse

McCullough

wrote,

inter

alia,

“Cortisone

(Unknown, Psorias [sic] worse 11/19/10). Plaintiff denied abnormal
pigmentation, lesions, acute rash, and chronic rash.

(Tr. 580).

Nurse McCullough noted that examination, including examination of
plaintiff’s

musculoskeletal

system,

condition, yielded normal results.
On

December

14,

2010,

skin,

and

psychiatric

(Tr. 580-81).
Nurse

McCullough

completed

a

medical source statement in which she diagnosed plaintiff with
gastroesophageal reflux disease, fatty liver, spondylosis of the
thoracic spine, osteoarthritis and depression.

(Tr. 620).

Nurse

McCullough opined that plaintiff’s “[p]rognosis for ability to
return to work” was “fair to poor.”

(Id.)

When asked to opine

whether the cumulative effect of plaintiff’s medical problems would
allow her to work any number of hours per day from zero to eight,
Nurse McCullough wrote “I really can’t determine this, I believe
the major impediment to work is the Psychiatric [dignosis].” (Id.)
Nurse McCullough opined that plaintiff would miss work three times
per month, and that pain or other symptoms were so severe as to
disrupt plaintiff’s concentration and attention, and that plaintiff
had a marked limitation in her ability to deal with work stress.
(Id.) Nurse McCullough opined that plaintiff could frequently lift
up to ten pounds and occasionally lift 20, and could sit, stand
and/or walk less than two hours in an eight-hour work day.

(Tr.

620).
On December 16, 2010, Ms. Lenz wrote that plaintiff was:
Thinking

of

“firing”

Dr.

- 22 -

Harvey

because

[plaintiff’s disability lawyers] said his GAF
score does not match his stating she cannot
work at present i.e. GAF score is too high
(70s) to support a claim of disability.
(Tr. 663).
Plaintiff was overwhelmed and angry.

(Id.)

Ms. Lenz wrote that

plaintiff was “desperate for disability to solve financial status,
relationship [with] husband and pay off back mortgage.”

(Id.)

On December 20, 2010, Ms. Lenz opined that plaintiff
would likely miss work more than three times per month, that she
would constantly experience symptoms severe enough to interfere
with her ability to get along with others and constantly be limited
in

her

ability

to

handle

work

demands,

persistence

and

expectations, that she was severely limited in her ability to deal
with work stress, and frequently limited in her ability to focus,
organize, and timely complete work tasks.

(Tr. 621).

On December 23, 2010, Ms. Lenz noted that plaintiff felt
she was being forced to deal with her poor parenting skills.
664).

(Tr.

Ms. Lenz also noted that plaintiff wanted “only to chit

chat, not deal [with] issues” especially those related to her older
son.

(Id.)

It was noted that plaintiff was buying unnecessary

things while claiming she could not afford treatment for her son.
(Id.)
On December 30, 2010, plaintiff saw Dr. Harvey
reported doing better recently.
cooperative.

(Tr. 676).

and

She was pleasant and

(Id.)

On January 28, 2011, Ms. Lenz noted that plaintiff was

- 23 -

displaying less anger, and felt good about having cleaned her
kitchen with a friend’s help.

(Tr. 666).

conflict during a recent family event.

(Id.)

Plaintiff reported
Ms. Lenz wrote that

plaintiff wanted only “to ‘visit,’ get support for whatever she
does then threatens to fire me and tells me how to do my job if I
persist.”

(Id.)

On March 3, 2011, plaintiff reported feeling

angry at her husband because he would not let her drive.
668).

(Tr.

Ms. Lenz wrote that plaintiff stated “only comes in to be

supported - doesn’t want to learn.”

(Id.)

Ms. Lenz wrote that she

would try to engage plaintiff in treatment.

(Id.)

following visit, on March 10, 2011, was similar.
On February 24, 2011, plaintiff

saw

Plaintiff’s

(Tr. 669).
Dr. Harvey and

reported that she could not sleep at night and slept during the
day.

(Tr. 675).

She was pleasant and cooperative.

(Id.)

In a letter dated March 17, 2011, Dr. Harvey wrote:
Employment is out of the questions [sic] for
Ms. Naeger. She is not able to work due to
her mental condition.
Please honor her
request for assistance, including food stamps.
(Tr. 623).
On March 24, 2011, Ms. Lenz wrote:
Both [plaintiff] & her husband made a big to
do about paying me the balance of the
deductible they owe me.
Both demanded they
get their records now. I explained again they
are not paying for the records.
No money/about to lose house though have only
paid 10 of 24 mortgage payments.
. . . her husband is blaming her for not
working.

- 24 -

Unrealistic hope that being approved for
disability earlier due to foreclosure & that
disability will solve their financial issues.
(Tr. 670).
Ms. Lenz’s records include an April 7, 2011 notation that
plaintiff was going to fire Ms. Lenz “due to some paranoid notion
of me keeping my medical records from [plaintiff’s disability
lawyers].”

(Tr. 671).

It is noted that plaintiff feared that her

husband would leave her if she did not work or get disability.
(Id.)

It is noted that plaintiff was “never interested in learning

new ways to cope or manage her emotions.
‘visit,’ be supported & get disability.”
Ms.

Lenz’s

office

advised

Dr.

She only wanted to

(Id.)

Harvey

that

It is noted that
plaintiff

had

discontinued seeing her and that Ms. Lenz would not attempt to
bring her back to therapy because plaintiff was “non-compliant and
has a nasty accusatory disposition.” (Id.) The record includes an
update that Dr. Harvey “responded he ‘totally understands.’” (Tr.
671).
On April 21, 2011, plaintiff saw Dr. Harvey and was not
doing well, but could not articulate why.

(Tr. 674).

She reported

that she was unhappy with Ms. Lenz, and Dr. Harvey wrote that
plaintiff was “really lashing out” at Ms. Lenz.

(Id.)

On April 27, 2011, plaintiff was seen by Stephanie Gegg,
a licensed clinical social worker, at the Community Counseling
Center.

(Tr. 681).

The chief complaint on Ms. Gegg’s intake note

is that plaintiff reported having fired her former therapist for
not sending medical records, explaining that she wanted to have
- 25 -

medical records sent to her disability lawyers, but the former
therapist made excuses and did not do it.

(Id.)

Plaintiff also

stated that her family and son were off limits, and she wanted her
therapy to be about her and her history of sexual abuse.
84).

(Tr. 681-

Regarding her medical history, plaintiff reported being in

fair health, although she did have high cholesterol but could not
afford the medication.

She reported taking medication for

(Id.)

back pain, and also reported that she was not smoking marijuana but
did

smoke

cigarettes.

(Tr.

681-82).

Plaintiff

denied

ever

attempting suicide or engaging in self-mutilation, but did say that
she twisted and pulled out her hair.
a 60 GAF.
plaintiff

(Tr. 684).
was

(Tr. 682).

Ms. Gegg assessed

During her treatment with Ms. Gegg,

alternately

tearful

and

angry,

but

otherwise,

clinical mental status signs were normal. (Tr. 678-84). Plaintiff
was noted to dress appropriately, use good hygiene and grooming, be
talkative with normal speech quality, and demonstrate normal motor
behavior.

(Id.)

Plaintiff was observed to be alert, responsive,

cooperative, with good eye contact, logical and coherent thought
processes, and appropriate affect.
On
Summary.

April

30,

(Tr. 624-26).

2011,

Ms.

(Id.)
Lenz

completed

a

Discharge

Ms. Lenz wrote that she and plaintiff

mutually agreed to terminate services, and wrote that she believed
that plaintiff was not making much progress and was not interested
in learning and trying new behaviors.

(Tr. 624).

Ms. Lenz wrote

that plaintiff wanted to “fire” her because she was angry that Ms.
Lenz did not send her records quickly enough to the law firm
- 26 -

handling

her

disability

claim.

(Id.)

Ms.

Lenz

wrote

that

plaintiff still maintained that she hated people and therefore
could not work.
for

her

(Id.)

problems,

Ms. Lenz wrote that plaintiff blamed others

and

“saw

disability

as

the

answer

to

her

financial problems and a way to keep her husband because she would
then be contributing to household income.”
Ms.
personality

Lenz

wrote

disorder

relationships were stable.

that

she

because

had

(Id.)
ruled

plaintiff’s

(Tr. 625).

out

borderline

interpersonal

She wrote that plaintiff

exhibited traits of various personality disorders, but did not
fully meet the criteria for any one in particular.

(Id.)

She

wrote that plaintiff was “able to turn on & off her anger and tears
when reacting to events or statements so her reactions do not
appear genuine.”

(Id.)

Ms. Lenz wrote that, while plaintiff once went for three
months without using marijuana, she always resumed using it because
she felt she deserved to.

(Id.)

This was identified as a source

of conflict with plaintiff’s husband, who resented her spending
money to buy marijuana, a feeling plaintiff stated she understood
because she had a history of spending money irresponsibly.

(Tr.

625).
Ms. Lenz wrote that plaintiff made few sincere attempts
to try to learn new behaviors, and instead “appeared to be biding
her time until her Disability Determination would be made.”

(Id.)

Ms. Lenz wrote that plaintiff “would periodically question whether
making improvements would harm her claim/case.”
- 27 -

(Id.)

Ms. Lenz

wrote that plaintiff “scoffed” at therapeutic treatments and, when
she tried to introduce a new technique to plaintiff, plaintiff
would throw a “temper tantrum” and say that Ms. Lenz’s job was only
to support her.

(Id.)

She wrote that plaintiff wanted special

treatment and felt entitled to it, and that plaintiff repeatedly
refused to try any form of therapy and wanted only to visit, make
small talk, and be soothed.

(Tr. 626).

Ms. Lenz wrote:
When I began to ask why she wasn’t trying
[plaintiff] would become angry and accusing
“why should I bother?” She saw me finally as
a threat to her plan.
Her plan was to not
work, continue “hating people” and try to
appease her husband so someone would take care
of her.
I was no longer able to keep her
engaged in treatment.
(Id.)
On May 12, 2011, Dr. Harvey noted that plaintiff was
sleeping better on a new medication, and had a lot of anxiety about
her forthcoming hearing in August.

(Tr. 673).

On June 10, 2011,

Dr. Harvey noted that plaintiff was doing better but disliked the
new sleep medication because it made her too sleepy.

(Tr. 672).

On August 18, 2011, plaintiff presented to St. John’s
Mercy Medical Center with the chief complaint: “I tried to hurt
myself,” and was admitted.

(Tr. 686).

It is noted that plaintiff

took three pills in a suicide gesture.

(Id.)

She reported

difficulties with ongoing marijuana consumption, and reported that
she

smoked

two

packs

of

cigarettes

per

day.

(Id.)

Upon

examination, it was noted that plaintiff denied present suicidal or
- 28 -

homicidal thoughts, but acknowledged prominent stress bringing her
to the hospital.

(Tr. 687).

Insight and judgment were fair, and

she was well-oriented with good recall and calculations. (Id.) It
is noted that initial consideration was given to the possibility
that

plaintiff

should

following discharge.

attend

an

outpatient

treatment

program

During hospitalization, plaintiff

(Id.)

improved with medication adjustments, but had complaints of chest
pain and was evaluated in the emergency room.

(Tr. 688).

Cardiac

testing was normal, and plaintiff’s chest pain resolved.
695).

Plaintiff was discharged to home.

(Tr.

(Id.)

On August 31, 2011, Dr. Harvey wrote that he had seen
plaintiff since December of 2009, and that, during that time, her
GAF score was recorded in the 50-75 range, with her more recent GAF
score at 60.

(Tr. 685).

Dr. Harvey wrote:

As you know, the GAF score does not correlate
well with actual psychiatric disability or
inability to work. Also, the fact that her
clinical status fluctuates is another reason
that gainful employment is unlikely for
[plaintiff].
For now, full-time work is something that she
is both unable to do, and is advised to not
do.
(Id.)
III.
The
impairments
depression

ALJ
of

not

The ALJ’s Decision

determined

degenerative
otherwise

that

plaintiff

disc

disease,

specified,

- 29 -

the

obesity,

marijuana

cognitive problems not otherwise specified.

had

severe
asthma,

dependence,

(Tr. 13).

and

The ALJ

determined that plaintiff did not have an impairment or combination
of impairments of listing-level severity.

(Tr. 14).

The ALJ

conducted an exhaustive analysis of the medical evidence of record
and concluded that plaintiff retained the residual functional
capacity (“RFC”) to perform medium work as defined in 20 C.F.R. §
404.1567(c), except that she should have no concentrated exposure
to pulmonary irritants, and she was able to perform simple, routine
tasks that can be performed independently and that involve working
primarily with things rather than people, and beyond that any
social interaction must be only superficial interaction with coworkers and supervisors and no direct interaction with the general
public.

(Tr. 16).
The

ALJ

determined

that

plaintiff

performing her past relevant work as a binder.

was

capable

(Tr. 25).

of

The ALJ

alternately found, considering the Medical-Vocational Guidelines
along with VE testimony, that jobs existed in the national economy
that plaintiff could perform.

(Tr. 26).

The ALJ concluded that

plaintiff was not under a disability, as defined in the Act, at any
time through the date of the decision.
IV.

(Tr. 27).

Discussion

To be eligible for Disability Insurance Benefits and
Supplemental

Security

Income

under

the

plaintiff must prove that she is disabled.

Social

Security

Act,

Pearsall v. Massanari,

274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Secretary of Health
& Human Servs., 955 F.2d 552, 555 (8th Cir. 1992).

The Act defines

disability as the “inability to engage in any substantial gainful
- 30 -

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.”
will

be

declared

42 U.S.C. § 423(d)(1)(A).

disabled

“only

if

[her]

An individual

physical

or

mental

impairment or impairments are of such severity that [she] is not
only unable to do [her] previous work but cannot, considering [her]
age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy.” 42
U.S.C. § 423(d)(2)(A).
To

determine

whether

a

claimant

is

disabled,

Commissioner engages in a five-step evaluation process.

the

See 20

C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).
The Commissioner begins by deciding whether the claimant is engaged
in substantial gainful activity.
disability benefits are denied.

If the claimant is working,
Next, the Commissioner decides

whether the claimant has a “severe” impairment or combination of
impairments, meaning that which significantly limits her ability to
do basic work activities.

If the claimant’s impairment(s) is not

severe, then she is not disabled. The Commissioner then determines
whether the claimant’s impairment(s) meet or equal any listed in 20
C.F.R., Subpart P, Appendix 1.

If claimant’s impairment(s) is

equivalent to a listed impairment, she is conclusively disabled.
At the fourth step, the Commissioner establishes whether the
claimant can perform her past relevant work.
is not disabled.
- 31 -

If so, the claimant

The decision of the Commissioner must be affirmed if it
is supported by substantial evidence on the record as a whole.

42

U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971);
Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002).

Substantial

evidence is less than a preponderance but enough that a reasonable
person would find adequate to support the conclusion.
Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).

Johnson v.

The “substantial

evidence test,” however, is “more than a mere search of the record
for evidence supporting the Commissioner’s findings.”

Coleman v.

Astrue, 498 F.3d 767, 770 (8th Cir. 2007) (internal quotation marks
and citation omitted).

The Court must also consider any evidence

which fairly detracts from the Commissioner’s decision.

Coleman,

498 F.3d at 770; Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir.
1999).
If

substantial

evidence

exists

to

support

the

administrative decision, this Court must affirm that decision even
if the record also supports an opposite decision.

Weikert v.

Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal quotation
marks and citation omitted); see also Jones ex rel. Morris v.
Barnhart, 315 F.3d 974, 977 (8th Cir. 2003); see also Pearsall, 274
F.3d at 1217 (citing Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir.
2000) (In the event that two inconsistent conclusions may be drawn
from

the

evidence,

the

Commissioner’s

findings

may

still

be

supported by substantial evidence on the record as a whole).
A.

Step 2 Findings Regarding Pustular Psoriasis
At Step 2 of the sequential evaluation process, the ALJ
- 32 -

determined

that

degenerative

plaintiff

disc

had

severe

impairments

obesity,

disease,

the

asthma,

depression

of
not

otherwise specified, marijuana dependence, and cognitive problems
not otherwise specified.

The ALJ did not find pustular psoriasis

to be a severe impairment, noting that plaintiff was treated for a
skin condition only once during the relevant time period.

Arguing

that the ALJ’s finding was error, plaintiff cites to page 577 of
the administrative record and argues that this office note “shows
treatment for the problem.
11/15/2010.”

It shows the psoriasis worse on

(Docket No. 13 at 4).

Review of the record reveals

no error at Step 2 of the sequential evaluation process.
At Step 2, the ALJ decides whether the claimant has a
“severe impairment,” meaning one which significantly limits her
ability to do basic work activities.
*34469 (July 2, 1996).

SSR 96-3p, 1996 WL 362204,

In Bowen v. Yuckert, after upholding the

validity of Step 2’s threshold severity requirement, the Supreme
Court adopted a standard for its application which provides that
“[o]nly those claimants with slight abnormalities that do not
significantly
benefits

limit

without

any

‘basic

undertaking”

sequential evaluation process.

work
the

activity’
subsequent

can

be

steps

denied
of

the

482 U.S. at 158.

At Step 2, the claimant bears the burden of establishing
the presence of a severe impairment or combination of impairments.
See Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007).

While

severity is not an onerous requirement for the claimant to meet, it
“is also not a toothless standard, and [the Eighth Circuit has]
- 33 -

upheld on numerous occasions the Commissioner’s finding that a
claimant failed to make this showing.”

Id. (internal citation

omitted).
As the ALJ observed, on October 2, 2009, Nurse McCullough
treated plaintiff for a rash on her chest and abdomen that was
diagnosed as a self-limiting skin condition that would resolve on
its own in six to 12 weeks without treatment.

(Tr. 480-83).

Review of page 577 of the administrative transcript shows no
diagnosis of or treatment for psoriasis.

See (Tr. 577).

Page 577

is the first page of Nurse McCullough’s December 13, 2010 office
note.

(Id.)

On that date, plaintiff saw Nurse McCullough “for

papers for diability [sic].”

(Tr. 577).

In the section of Nurse

McCullough’s office note entitled “Coded Allergies,” she wrote
“Cortisone (Unknown, PSORIAS [sic] WORSE 11/19/10). (Id.) This is
not an observation that plaintiff had worsening psoriasis when she
was seen.

It is a notation that cortisone caused an allergic

reaction.

In fact, during this visit, plaintiff denied abnormal

pigmentation,

lesions,

acute

rash,

and

chronic

rash,

Nurse

McCullough recorded normal findings upon examination of plaintiff’s
skin, and Nurse McCullough’s “current visit problems” list includes
no reference to pustular psoriasis.

(Tr. 580-81).

The page

plaintiff references in support of her argument concerning the
ALJ’s Step 2 findings is not helpful to plaintiff, and she makes no
other attempt to challenge the ALJ’s failure to find that pustular
psoriasis was a severe impairment.

Therefore, on the claim that

plaintiff raises, the undersigned concludes that the ALJ properly
- 34 -

evaluated the severity of pustular psoriasis.6
B.

Opinion Evidence
In

his

written

decision,

the

discussed the medical evidence of record.
Morgan’s

indication

of

moderate

ALJ

comprehensively

The ALJ wrote that Dr.

limitation

in

the

areas

of

concentration, persistence and pace was inconsistent with various
admissions plaintiff made.

(Tr. 16).

The ALJ also wrote that he

gave the greatest weight to the treatment notes of Dr. Harvey, and
little weight to the opinion evidence from Dr. Harvey, Ms. Lenz,
and Nurse McCullough.

(Tr. 19-25).

In his decision, the ALJ gave

several valid reasons for the weight given to each opinion.

(Tr.

16, 19-25).
Citing to page 16 of the administrative transcript,
plaintiff complains that the ALJ improperly “discounted the medical
opinions” as inconsistent with plaintiff’s admissions that she
performed certain daily activities listed by the ALJ.

6

(Docket No.

Plaintiff also states that she testified that she could not
expose her hands to water or chemicals, and the ALJ’s
hypothetical question to the VE was defective because it did not
include these limitations due to pustular psoriasis. (Docket No.
13 at 4-5). However, in an alternate hypothetical question, the
ALJ asked the VE to add the limitations of a need to wear nonlatex gloves and avoid bare-handed exposure to water or
chemicals. (Tr. 70). The vocational expert testified that such
an individual could still perform the jobs of poultry eviscerator
and store laborer as described earlier. (Tr. 70-71). The
vocational expert also testified that the individual could still
perform the job of housekeeper/cleaner, although the number of
those jobs would be reduced. (Id.) Even if the ALJ should have
determined that pustular psoriasis was a severe impairment, the
hypothetical questions posed to the VE would be determined to
have sufficiently accounted for plaintiff’s limitations, and the
ALJ’s ultimate decision would have been the same.
- 35 -

13 at 5).

Plaintiff does not identify the particular medical

opinion she is referencing but, given plaintiff’s page citation and
her statements in support of her argument, it appears plaintiff
references the ALJ’s discussion of Dr. Morgan’s indication that
plaintiff

had

moderate

limitations

in

all

three

areas

of

concentration, persistence and pace.
On the page plaintiff cites, the ALJ wrote that Dr.
Morgan’s indication of moderate limitation in all three of those
areas was inconsistent with plaintiff’s admissions that she watched
television, took her dogs outside, played computer games, prepared
her own meals, drove, shopped, worked puzzles, and paid bills.
Despite plaintiff’s suggestion to the contrary, the ALJ’s reasons
for discounting that part of Dr. Morgan’s opinion are supported by
the record.

When describing her daily activities in her Function

Report, plaintiff wrote that she made coffee, watched television,
took

her

two

dogs

“out

to

potty,”

watched

television,

made

something to eat, played on the computer, and did word and number
puzzles, including Sudoku.

(Tr. 294, 298).

She reported that she

brushed her pets, took one dog out on a leash, and put the other
one out on a line.

(Tr. 295).

She reported that she was able to

pay bills, count change, and use a checkbook or money order.
297).

(Tr.

She did report that she was unable to handle a savings

account, but explained that this was because she did not have extra
money for savings.

(Id.)

She reported that she had a valid

driver’s license, and was able to drive.

(Tr. 303).

The ALJ noted that, if plaintiff did not shop, it was
- 36 -

because her husband discouraged her from shopping due to her
irresponsible spending, not due to any social or concentration
limitations.

(Tr. 46).

In addition, the undersigned notes that

Ms. Lenz wrote, in October of 2010, that plaintiff reported using
shopping

and

dining

out

as

coping

mechanisms.

(Tr.

656).

Plaintiff also reported to Ms. Lenz in May and October of 2010 that
she engaged in various arts and crafts, and was excited about her
recent accomplishments in crochet and leather work.
654).

(Tr. 632,

The record supports the ALJ’s conclusion that Dr. Morgan’s

indication of a moderate limitation in concentration, persistence
and pace was inconsistent with plaintiff’s ability to function.
Plaintiff’s final arguments concern the ALJ’s decision to
give little weight to the opinion evidence from Dr. Harvey, Ms.
Lenz, and Nurse McCullough.

In response to plaintiff’s arguments

the Commissioner argues, inter alia, that all of these opinions,
particularly as they relate to plaintiff’s mental health, were
based in large part on plaintiff’s subjective complaints, which the
ALJ had properly rejected after undertaking a legally sufficient
analysis.

This argument is well-taken.

In bringing her claims in

this Court, plaintiff does not develop an argument specifically
challenging

the

ALJ’s

credibility

assessment.

Even

so,

the

undersigned has fully analyzed the ALJ’s credibility determination,
and concludes that it is supported by substantial evidence on the
record as a whole.
considered

all

In his decision, the ALJ wrote that he had

symptoms

and

the

extent

to

which

they

could

reasonably be accepted as consistent with the objective medical
- 37 -

evidence and other evidence, based on the requirements of 20 C.F.R.
§ 404.1529, and SSRs 96-4p and 96-7p.

The ALJ then noted several

inconsistencies in the record that detracted from the credibility
of plaintiff’s subjective complaints, all of which the undersigned
has considered and has determined are supported by substantial
evidence

on

specifically

the

record

discuss

as

those

a

whole.

elements

of

The
the

undersigned
ALJ’s

will

credibility

determination that are relevant to plaintiff’s claims herein.
1.

Dr. Harvey

Plaintiff contends that the ALJ erroneously discounted
Dr. Harvey’s opinion as being conclusory and based upon the state
of the economy instead of plaintiff’s abilities and limitations.
Plaintiff also argues that the ALJ erroneously concluded that Dr.
Harvey’s opinion evidence was inconsistent with his treatment
notes.

Review of the record reveals no error.
Plaintiff

correctly

characterizes

Dr.

Harvey

as

her

treating psychiatrist. A treating physician’s opinion is generally
entitled to substantial weight, but it does not automatically
control, because the ALJ must evaluate the record as a whole.
Davidson v. Astrue, 501 F.3d 987, 990 (8th Cir. 2007) (citing
Charles v. Barnhart, 375 F.3d 777, 783 (8th Cir. 2004)).

According

to the Regulations and to Eighth Circuit precedent, a treating
physician’s opinion must be well-supported by medically acceptable
clinical and laboratory diagnostic techniques and not inconsistent
with the other substantial evidence in the record.

20 C.F.R. §

404.1527(d)(3); Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir.
- 38 -

2005).

“If the opinion fails to meet these criteria, however, the

ALJ need not accept it.”

Davidson v. Astrue, 578 F.3d 838, 842

(8th Cir. 2009) (citing Hacker, 459 F.3d at 937); see also Rogers
v. Chater, 118 F.3d 600, 602 (8th Cir. 1997); Ward v. Heckler, 786
F.2d 844, 846 (8th Cir. 1986) (If justified by substantial evidence
in

the

record

as

a

whole,

the

ALJ

can

discount

a

treating

physician’s opinion). When an ALJ discounts a treating physician’s
opinion, he should give “good reasons” for doing so. Davidson, 501
F.3d at 990 (citing Dolph v. Barnhart, 308 F.3d 876, 878 (8th Cir.
2002)).
The ALJ in this case gave several good reasons for
discounting Dr. Harvey’s opinion evidence.

The ALJ noted that Dr.

Harvey qualified one of his opinions with a statement concerning
the economy.

While Dr. Harvey did not include this qualification

in all of his opinion letters, the fact that he rested at least
part of his opinion evidence on the economy rather than plaintiff’s
condition detracts from his opinions as a whole.
noted

that

none

of

Dr.

Harvey’s

opinion

The ALJ also

evidence

included

a

narrative or an explanation of plaintiff’s symptoms, clinical
signs, and specific functional limitations to support Dr. Harvey’s
conclusions.

A

treating

physician’s

opinion

is

accorded

controlling weight only if it is “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] record.”
20 C.F.R. § 404.1527(d)(2). It therefore appears that Dr. Harvey’s
opinion

evidence

was

based

largely
- 39 -

on

plaintiff’s

subjective

allegations, which the ALJ properly discredited after undertaking
a legally sufficient analysis. An ALJ may discount an opinion that
is based largely on a claimant’s subjective complaints rather than
objective medical evidence.
The
conclusory

ALJ

to

be

noted

Kirby, 500 F.3d at 709.

that

entitled

Dr.

to

Harvey’s

great

opinions

weight.

A

were

too

physician’s

conclusory statement of disability, without supporting evidence,
does not overcome substantial medical evidence supporting the
Commissioner’s decision.

Loving v. Department of Health and Human

Services, 16 F.3d 967, 971 (8th Cir. 1994); Browning v. Sullivan,
958 F.2d 817, 823 (8th Cir. 1992).

The ALJ noted that Dr. Harvey’s

opinions that plaintiff could not work exceeded his expertise as a
psychiatrist and intruded onto the province of a vocational expert.
A medical source’s opinion that a claimant is “disabled” or “unable
to work” involves an issue reserved for the Commissioner, and is
therefore not the type of medical opinion to which the Commissioner
gives controlling weight.

See Stormo v. Barnhart, 377 F.3d 801,

806 (8th Cir. 2004) (“[T]reating physicians’ opinions are not
medical opinions that should be credited when they simply state
that a claimant can not be gainfully employed, because they are
merely opinions on the application of the statute, a task assigned
solely

to

the

discretion

of

the

Commissioner”);

20

C.F.R.

§

404.1527(e)(1).
The ALJ noted that Dr. Harvey’s opinion evidence was
inconsistent with his own treatment notes, which indicated mostly
normal signs (except for some poor insight and judgment and some
- 40 -

exaggerated responsitivity), high GAF scores, and indications that
plaintiff’s symptoms were largely due to marijuana use.

Contrary

to plaintiff’s assertion, an ALJ is entitled to discount a treating
physician’s opinion that is inconsistent with his or her treatment
notes.

Davidson, 578 F.3d at 842 (“It is permissible for an ALJ to

discount an opinion of a treating physician that is inconsistent
with the physician’s clinical treatment notes”).
In the context of her arguments concerning the ALJ’s
treatment of Dr. Harvey’s opinion evidence, plaintiff states that
the

ALJ

did

not

consider

plaintiff’s

last

hospitalization.

Plaintiff does not, however, develop an argument concerning how the
last hospitalization should have changed the ALJ’s treatment of Dr.
Harvey’s opinion evidence.

As noted in the above summary of the

medical information, plaintiff was hospitalized on August 18, 2011
after presenting to St. John’s Mercy Medical Center and reporting
having swallowed three pills in a suicidal gesture.
was considered by the Appeals Council.

This evidence

“Where, as here, the

Appeals Council considers new evidence but denies review, [the
reviewing court] must determine whether the ALJ’s decision was
supported

by

substantial

evidence

including the new evidence.”

on

the

record

as

a

Davidson, 501 F.3d at 990.

whole,
This

latest hospitalization in no way undermines the ALJ’s decision
regarding Dr. Harvey’s opinion evidence, or the ALJ’s ultimate
decision.

After presenting to the hospital, plaintiff reported no

suicidal ideation.

During her stay, she improved with medication

and, while it was initially thought that she may need to transition
- 41 -

from the hospital into intensive outpatient treatment, it was
ultimately concluded that she did not need this and could simply be
discharged to home. This hospitalization fails to detract from the
ALJ’s decision to discount Dr. Harvey’s opinion evidence, and it in
no way undermines the ALJ’s decision.
After fully considering Dr. Harvey’s opinion evidence in
light of his own treatment records and the evidence in the record
as

a

whole,

the

ALJ

concluded

that

he

resolved

all

of

the

inconsistencies by giving greater weight to Dr. Harvey’s actual
treatment notes.

As explained above, this finding is supported by

substantial evidence on the record as a whole.
2.

Ms. Lenz

The ALJ also wrote that he was giving little weight to
the opinion evidence from Ms. Lenz.

As noted in the above summary

of the medical information, in August 2010, Ms. Lenz wrote that it
was not possible for plaintiff to work as an employee, and in
December 2010 completed a medical source statement indicating that
plaintiff would miss work often and suffer constant interference
from symptoms.

Without specifying which statement, plaintiff

complains that the ALJ “discounted the disability evaluation of
Maureen Lenz because of her discharge summary”7 when in fact the
discharge summary “clearly shows a patient with serious mental
health issues” in that plaintiff was not progressing as Ms. Lenz

7

As noted above, Ms. Lenz treated plaintiff from May 2010
through April 2011. Ms. Lenz’s discharge summary is dated April
30, 2011. It was completed following the conclusion of her
treatment relationship with plaintiff.
- 42 -

would have liked.

(Docket No. 13 at 5).

Plaintiff also contends

that “nowhere in the discharge summary does Ms. Lenz contradict her
prior opinions or say that the claimant is not disabled.”

(Id.)

Review of the ALJ’s decision reveals that he properly considered
the evidence from Ms. Lenz.
Ms. Lenz was a licensed clinical social worker.

The

Commissioner’s Regulations provide that evidence to establish an
impairment must come from “acceptable medical sources,” which are
defined as licensed medical or osteopathic physicians, licensed or
certified

psychologists,

licensed

optometrists,

licensed

podiatrists, and qualified speech-language pathologists. 20 C.F.R.
§ 404.1513(a)(1)-(5).

Licensed clinical social workers, like Ms.

Lenz, are defined elsewhere in the Regulations as “other sources”
whose opinions may be used to help understand how a claimant’s
impairments affect her ability to work.

20 C.F.R. § 404.1513(d).

Plaintiff contends that the discharge summary shows that
plaintiff was not progressing as Ms. Lenz would have liked, an
indication

that

plaintiff

was

seriously

mentally

ill.

This

argument is not well-taken. Ms. Lenz did not attribute plaintiff’s
failure to progress to any mental illness.
plaintiff’s

own

choice

to

refuse

to

She attributed it to

cooperate

with

therapy.

Throughout her treatment relationship with plaintiff, Ms. Lenz
repeatedly documented plaintiff’s unwillingness to work on issues
and her refusal to try forms of therapy that Ms. Lenz thought would
help plaintiff. Ms. Lenz wrote that plaintiff preferred instead to
chit chat, be soothed, visit, and receive support for whatever she
- 43 -

did. Ms. Lenz never suggested that plaintiff’s failure to progress
in therapy was due to any serious mental illness, nor did she ever
indicate

that

plaintiff

required

hospitalization,

intensive

outpatient treatment, or therapy that was more serious than what
Ms. Lenz could offer.
Plaintiff also complains that Ms. Lenz did not contradict
her prior opinions or say that plaintiff is not disabled.

However,

the fact that Ms. Lenz did not expressly recant her prior opinions
or the fact that she did not say that plaintiff was not disabled
provides no basis to remand the ALJ’s decision.

In addition, as

the ALJ observed, Ms. Lenz’s post-opinion evidence document her
observations that plaintiff refused to engage in therapy and
focused instead on qualifying for disability benefits.

Ms. Lenz

indicated that plaintiff was a malingerer, in that plaintiff was
“able to turn on & off her anger and tears when reacting to events
or statements so her reactions do not appear genuine.”

(Tr. 625).

Ms. Lenz did not attribute any of the foregoing to mental illness;
instead, she attributed it to plaintiff’s own choices. The ALJ also
noted Ms. Lenz’s observations that plaintiff “appeared to be biding
her time until her Disability Determination would be made,” would
“periodically question whether making improvements would harm her
claim/case,” and ultimately saw Ms. Lenz as “a threat to her plan”
which was “to not work, continue ‘hating people.’” (Tr. 625-26).
The ALJ concluded that Ms. Lenz’s records revealed that plaintiff
was not serious about treatment and did not want to try certain
treatment

modalities,

an

indication
- 44 -

that

her

alleged

mental

symptoms

were

not

as

severe

or

functionally

limiting

as

she

alleged.

O’Donnell v. Barnhart, 318 F.3d 811, 818 (8th Cir. 2003)

(An ALJ may discount a claimant’s allegations if there is evidence
that he is a malingerer or was exaggerating symptoms for financial
gain).
Also notable is the fact that Ms. Lenz’s August and
December 2010 opinion evidence includes no documentary narrative to
support her conclusions.

Even a treating physician’s opinion is

accorded controlling weight only if

it is “well-supported by

medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with the other substantial evidence in
[the] record.”

20 C.F.R. § 404.1527(d)(2). It therefore appears,

as the Commissioner argues, that Ms. Lenz’s opinions were based
largely upon plaintiff’s subjective allegations, which the ALJ
properly
analysis.

discredited

after

undertaking

a

legally

sufficient

An ALJ may discount an opinion that is based largely on

a claimant’s subjective complaints rather than objective medical
evidence.

Kirby, 500 F.3d at 709.
3.

Nurse McCullough

The ALJ wrote that he was giving little weight to the
opinion evidence from Nurse McCullough.

Plaintiff alleges error,

arguing that the ALJ ignored her long treatment relationship with
Nurse McCullough, and made several inaccurate observations. Review
of the record reveals no error.
As the ALJ correctly observed, Nurse McCullough is not an
“acceptable medical source” whose evidence can be used to establish
- 45 -

an

impairment.

20

C.F.R.

§

404.1513(a)(1)-(5).

Nurse

Practitioners, like Nurse McCullough, are “other sources” whose
opinions may help understand how a claimant’s impairments affect
her ability to work.

20 C.F.R. § 404.1513(d)(1).

The ALJ noted that, while Nurse McCullough opined that
plaintiff was limited primarily by her psychiatric impairments,
Nurse McCullough was not a mental health specialist.

The ALJ was

entitled to consider that Nurse McCullough’s opinion limiting
plaintiff based upon psychiatric impairments was beyond the scope
of her expertise and therefore not entitled to significant weight.
“Greater weight is generally given to the opinion of a specialist
about medical issues in the area of specialty, than to the opinion
of a non-specialist.”

Brown v. Astrue, 611 F.3d 941, 954 (8th Cir.

2010) (internal citation omitted).
The ALJ also observed that, although Nurse McCullough
described limitations that would essentially leave plaintiff bedbound most of the day, the objective medical evidence of record,
which the ALJ exhaustively summarized, provided no basis for such
drastic

physical

limitations.

While

plaintiff

contends

that

radiological studies confirm that gardening causes back pain, a May
28, 2010 lumbar spine MRI showed no acute spine disease, and
thoracic spine MRI showed no preexisting spondylosis with minimal
cord impingement and no displacement.

Even a treating physician’s

opinion must be consistent with the balance of the evidence of
record in order to be entitled to controlling weight.
399 F.3d at 920.

See Reed,

Also notable is that, despite Nurse McCullough’s
- 46 -

assessment of extreme physical limitations, she advised plaintiff
to exercise.

(Tr. 600-01).

As

plaintiff

contends,

Nurse

McCullough

did

treat

plaintiff for back pain after plaintiff pushed a car in June of
2010.

As plaintiff also contends, she did have positive straight

leg raise testing on June 22, 2010 and diminished knee reflexes on
October 8, 2010.

However, as the ALJ observed, by November of 2010

plaintiff had no knee complaints, and complained of back pain only
when coughing.

When she saw Nurse McCullough in December of 2010,

it was for the purpose of getting disability papers, not treatment,
and Nurse McCullough’s musculoskeletal examination was negative.
Even a treating physician’s opinion must be consistent with his or
her own treatment records in order to be entitled to significant
See Davidson, 578 F.3d at 842 (“It is permissible for an

weight.
ALJ

to

discount

an

opinion

of

a

treating

physician

that

is

inconsistent with the physician's clinical treatment notes”). Also
notable is the fact that Nurse McCullough’s

opinion evidence

includes no documentary narrative to support her conclusions. Even
a treating physician’s opinion is accorded controlling weight only
if it is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the
other

substantial

404.1527(d)(2).
that

Nurse

plaintiff’s

evidence

in

[the]

record.”

20

C.F.R.

§

It therefore appears, as the Commissioner argues,

McCullough’s
subjective

opinions

allegations,

were

based

which

the

largely
ALJ

properly

discredited after undertaking a legally sufficient analysis.
- 47 -

upon

An

ALJ may discount an opinion that is based largely on a claimant’s
subjective

complaints

rather

Kirby, 500 F.3d at 709.
Nurse

McCullough’s

than

objective

medical

evidence.

The ALJ was not bound by “other source”

inconsistent

and

unsupported

opinion

that

contradicted her own notes and exceeded the scope of her expertise.
For all of the foregoing reasons, on the claims that
plaintiff

raises,

the

undersigned

determines

that

the

Commissioner’s decision is supported by substantial evidence on the
record as a whole, and should therefore be affirmed. Because there
is substantial evidence to support the decision, reversal is not
required

merely

because

substantial

evidence

may

support

a

different outcome, or because another court could have decided the
case

differently.

Gowell

v.

Apfel,

242

F.3d

793,

796

(8th

of

the

Cir.2001); Browning, 958 F.2d at 821.
Accordingly,
IT

IS

HEREBY

ORDERED

that

the

decision

Commissioner is affirmed, and plaintiff’s Complaint is dismissed
with prejudice.

_______________________________
Frederick R. Buckles
UNITED STATES MAGISTRATE JUDGE
Dated this 26th day of September, 2013.

- 48 -