Florea v. Astrue

Filing 16

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED. A separate Judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 9/11/12. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
TAMMY FLOREA,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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Case No. 2:11CV17 AGF

MEMORANDUM AND ORDER
This matter is before the Court for judicial review of the final decision of the
Commissioner of Social Security finding that Plaintiff Tammy Florea, was not disabled
and, thus, not entitled to disability insurance benefits or to supplemental security income
(“SSI”), under Titles II and XVI of the Social Security Act, respectively, 42 U.S.C. §§
401-434 and §§ 1381-1383(f). For the reasons set forth below, the decision of the
Commissioner shall be affirmed.
Plaintiff, who was born on September 28, 1965, filed her applications for benefits
on September 24, 2007, four days before her forty-second birthday, alleging a disability
onset date of August 30, 2007, due to blood clots in her legs, varicose veins, and right leg
numbness. In a revised application, Plaintiff also claimed disability due to a history of
thrombophlebitis, degenerative disc disease in the lumbar spine, obesity, depression,

asthma, headaches, and carpal tunnel syndrome.1 After Plaintiff’s applications were
denied at the initial administrative level, Plaintiff requested a hearing before an
Administrative Law Judge (“ALJ”), which was held on April 13, 2009. Plaintiff and a
vocational expert (“VE”) testified at the hearing. In his June 26, 2009 decision, the ALJ
found that Plaintiff had the residual functional capacity (“RFC”) to perform certain jobs
identified by the VE. The Appeals Council of the Social Security Administration denied
Plaintiff’s request for review on December 28, 2010. Plaintiff has thus exhausted all
administrative remedies and the ALJ’s decision stands as the final agency action now
under review.
Plaintiff now asserts that the ALJ’s decision is not supported by substantial
evidence on the record as a whole and that the ALJ committed reversible error by
discrediting Plaintiff’s testimony; by failing to consider the written testimony of
Plaintiff’s daughter; failing to give proper weight to the effect of Plaintiff’s obesity on her
ability to work; rejecting the conclusions of a consulting physician, including his global
assessment of functioning (“GAF”)2 determination of 50; and by rejecting the VE’s

1

In her original Report, Plaintiff stated that she took medication for depression
related to her blood clots. Plaintiff also complained of depression in her Work History
Report and Appellate Report. However, Plaintiff did not allege that the depression
interfered with her ability to work. Most of the other claims are mentioned in the hearing
testimony, but not in her applications. (Tr. 145, 160, 164.)
2

A GAF score represents a clinician’s judgment of an individual’s overall ability
to function in social, school, or occupational settings, not including impairments due to
physical or environmental limitations. Diagnostic & Statistical Manual of Mental
Disorders (4th ed.) (DSM-IV) at 32. GAF scores of 31-40 indicate “[s]ome impairment
2

testimony that Plaintiff would be unemployable. Plaintiff asks that the Court reverse the
decision of the Commissioner and grant immediate benefits without remanding to the
ALJ, or, in the alternative, remand for reevaluation of the evidence and further
development of the record.
BACKGROUND
Work History and Application Forms
On September 24, 2007, Plaintiff filed two applications: an application for
disability insurance benefits (“DIB”) and an application for supplemental security income
(“SSI”),3 asserting disability due to “blood clots in [her] legs, varicose veins, [and] right
leg numbness.”4 Plaintiff reported recurring episodes of clotting, numbness in her right
leg from the thigh to the knee, bad pain, and swelling, that caused difficulty standing,
sitting, and the need to prop her legs up. In a later revised application for DIB, Plaintiff
also asserted ongoing symptoms of carpal tunnel syndrome. (Tr. 131, 146, 153.)

in reality testing or communication or “major” impairment in social, occupational, or
school functioning; scores of 41-50 reflect “serious” impairment in these functional areas;
scores of 51-60 indicate “moderate” impairment; scores of 61-70 indicate “mild”
impairment. Cox v. Astrue, 495 F.3d 614, 620 n. 5 (8th Cir. 2007); see also
Brueggemann v. Barnhart, 348 F.3d 689, 695 (8th Cir. 2003) (GAF score of 50 “reflects
serious limitations in the patient’s general ability to perform basic tasks of daily life, and
. . . the VE considered a claimant with a GAF of 50 unable to find any work”).
3

The Field Office Disability Report, dated September 24, 2007, noted that
Plaintiff applied for benefits in 1996 but was denied. (Tr. 126.)
4

The Disability Determinations System Case Activities sheet, completed on
October 19, 2007, listed these as Plaintiff’s only allegations. (Tr. 154.)
3

In the Disability Report and in her Work History Report, dated September 28,
2007,5 Plaintiff stated that she worked as a pharmacy tech from 1999 until her alleged
disability onset date of August 30, 2007. In addition, Plaintiff worked intermittently from
1994 to 2001 as a convenience store cashier; from 1998 to 2001 as a phone surveyor for a
telemarketer, for approximately six months in 1999, as a grocery store clerk; and from
1989 to 1994 as a machine operator for a shoe manufacturer. Plaintiff also reported that
at “[t]he last jobs” she “operated sewing machines[,] a sealer[,] and printer.” Plaintiff’s
earnings varied over the last 10 years of her work experience, but the record indicates that
Plaintiff earned approximately $20,000 per year as a pharmacy tech. (Tr. 116.)
In the September 28, 2007 Function Report, Plaintiff wrote that she took care of
her children, which included cooking, housework, and doing at least one load of laundry
a day. She also reported that she could drive a car, go out alone, and handle the finances.
Plaintiff claimed that she could lift twenty pounds or less, that the blood clots in her legs
hurt when squatting, kneeling, or climbing stairs, and that standing and walking caused
her legs to ache and swell. Plaintiff further reported that she had not noticed any unusual
behavior or fears, but didn’t handle stress well. Plaintiff also reported that she took
medication for depression related to her blood clots, but did not allege that depression
interfered with her ability to work. (Tr. 138-45.)

5

Different dates appear in Plaintiff’s Work History Report. But as these dates
are not at issue in the case, only the dates first given in Plaintiff’s September 24, 2007
Disability Report – Adult are given here. (Tr. 131, 146.)
4

In the undated Disability Report included in the record, Plaintiff asserted that she
had not worked at any time after the alleged disability onset date of August 30, 2007,
stated that she stopped working because she had a baby, and did not note any physical or
mental impairments as the cause. (Tr. 130.)
In the undated Disability Report-Appeal, Plaintiff reported her conditions changed
on October 15, 2007, stating that she had more pain in her legs and that she was “very
depressed.” She cited no new physical or mental limitations or conditions, but reported
seeking medical care for infection from an incision, “depression/nerves,” counseling, an
MRI, and for surgery to treat the blood clots in her legs. (Tr. 160-62, 164.)
On December 18, 2008, as part of the administrative reconsideration process,
Plaintiff completed a Function Report stating she could lift five to six pounds, walk less
than a quarter mile before needing to rest for at least ten or fifteen minutes, and pay
attention for thirty to forty-five minutes before needing to move. Plaintiff further stated
that her hands would go numb, that she had trouble sitting or standing for long periods of
time, and that she was “very depressed” because of her limitations. (Tr. 177-78, 180.)
Medical Record
On September 15, 2006, while working as a certified pharmacy tech, Plaintiff
sought medical evaluation and treatment from John G. Adams Jr., M.D., a physician at
the Institute for Outpatient Surgery, who assessed left lower extremity superficial venous
insufficiency with painful varicosities and recommended stab avulsion
microphlebectomy, a surgical procedure that was performed on September 15, 2006. A
5

follow-up assessment, one month later, revealed Plaintiff was doing well and had no
complaints. On June 11, 2007, however, Dr. Adams diagnosed Plaintiff with painful
telangiectasia,6 which he characterized as common condition in pregnancy. Dr. Adams
recommended compression therapy and post-pregnancy follow-up. On August 31, 2007,
Plaintiff gave birth. (Tr. 269-75.)
On September 6, 2007, Charles L. Pritchard, D.O., a physician in the
cardiovascular department of the Northeast Regional Medical Center, performed a
Venous Doppler and diagnosed Plaintiff with superficial thrombophlebitis in her left leg.
(Tr. 277.) On September 11, 2007, Melanie Grgurich, D.O., Plaintiff’s primary care
physician, prescribed Prozac for Plaintiff, and noted two weeks later, that Plaintiff
refused counseling. (Tr. 330-31.)
On September 28, 2007, Plaintiff saw Kent J. Blanke, D.O., a cardiovascularthoracic surgeon, who reported “continued problems with [Plaintiff’s] known venous
insufficiency, [and] varicosities[,] . . .” for which he recommended phlebectomy and
continued compression hose treatment. (Tr. 334.) Although the record is somewhat
unclear, it appears that the recommended phlebectomy was performed in late October
2007.7

6

Telangiectasia: an abnormal dilation of capillary vessels and arterioles that often
forms an angioma. Merriam-Webster’s Collegiate Dictionary 1211 (10th ed. 1993).
7

The procedure is mentioned in Wound Treatment notes dated December 13,
2007, although the record contains no other medical evidence that the phlebectomy was
6

On October 22, 2007, Plaintiff had an MRI that revealed disc degeneration in L5S1, herniation that did not efface the nerve, and a facet arthritic change at L5-S1 and L45. Examining Plaintiff on December 13, 2007, Dr. Blanke reported that the area where
the phlebectomy had been performed was much improved, but he encouraged Plaintiff to
call him if the situation worsened. Plaintiff did not call and did not see Dr. Blanke during
2008. Plaintiff continued to see Dr. Grgurich through 2008, who noted on January 8,
2008, that Plaintiff had full strength in her extremities, and on April 28, 2008, that she
had full range of motion. (Tr. 185, 269-72, 277, 280, 330-31, 334, 342, 345, 349, 351,
362, 371.)
Plaintiff eventually agreed to receive counseling and on December 10, 2007,
Nathan Mozingo, LPC, evaluated Plaintiff for depression and anxiety. She reported that
she had been depressed most of her life, even during her academic years, and that she had
recently experienced “increas[ed] anxiety and worry as she ha[d] to cope with losing her
job.” Mr. Mozingo noted that Plaintiff had been taking Prozac since September of 2007,
and that it seemed to improver her mood.8 Plaintiff continued to see Mr. Mozingo for

performed. The Disability Determinations System Case Activities report references a
conversation with Plaintiff on October 19, 2007, in which she stated that the phlebectomy
was scheduled for October 31, 2007. Notes from Dr. Grgurich dated October 30, 2007
and then December 7, 2007, make no reference to phlebectomy. (Tr. 351, 154, 377.)
8

At this evaluation, Plaintiff reported that after she lost her job as a pharmacy
tech, her previous employer offered her “an option of doing part-time checking at a lower
salary.” Plaintiff declined this offer and began looking for other work, a search that was
ultimately unsuccessful. (Tr. 353.)
7

individual therapy through at least 2008. Her chief complaints related to anxiety over her
job loss and relationship problems with her boyfriend. (Tr. 353-61.)
On December 23, 2008, Plaintiff was referred to Jeffrey Harden, D.O., for a
consultative mental status examination as part of her application for benefits. Plaintiff
reported a long history of depression going back at least twenty years. Plaintiff also
indicated that she was able to perform a substantial number of activities of daily living.
For example, she drove, did some cooking, managed her budget and medications, and had
appropriate hygiene. Dr. Harden observed that Plaintiff had satisfactory grooming;
logical thought processes; intact concentration; and was fully oriented to person, place,
and time. He further noted the absence of hallucinations, delusions, and suicidal
thoughts. Dr. Harden concluded that Plaintiff had major depressive disorder and
posttraumatic stress disorder, both of which had been inadequately treated, and assigned
her a GAF of 50. He recommended ongoing psychiatric care with further medication and
counseling. (Tr. 386-88.)
On March 2, 2009, Plaintiff saw Niranjan Narain Singh, M.D., to whom she had
been referred by her primary care physician. Dr. Singh performed an EMG which
showed that Plaintiff had moderate carpal tunnel syndrome, but no evidence of cervical
radiculopathy or ulnar neuropathy. Dr. Singh recommended that Plaintiff wear a splint.
(Tr. 395-96.)

8

Evidentiary Hearing on April 13, 2009 (Tr. 20-57)
At the evidentiary hearing on April 13, 2009, Plaintiff testified that she was fortythree years old, had graduated from twelfth grade, and was living at home with her fouryear-old daughter and nineteen-month-old son. Plaintiff testified that she had most
recently worked at Walmart as a pharmacy technician. She held this position for four
years and had last worked the day before her son’s birth, on August 30, 2007. Plaintiff
stated she tried to get her job back after her son’s birth but had a problem with the
pharmacy manager, did not file unemployment, and looked for work unsuccessfully for
five or six months. Plaintiff further testified that, at the time of the hearing, she could not
work because she had a herniated disc in her back, recurring superficial blood clots in her
legs that required her to elevate them, trouble with depression and anxiety, and carpal
tunnel syndrome for which she wore a brace every night. (Tr. 25-26.)
Plaintiff claimed she could not bend for long periods of time and that lifting was
very difficult for her because of her back problems. Plaintiff reported an MRI had been
performed in October 2007. The ALJ asked whether, since the back injury had no effect
on her nerves, it would affect her ability to bend “or anything of that nature.” Plaintiff
responded that she “had no idea.” Plaintiff indicated that she had thrombophlebitis on
and off all the time, requiring elevation of her legs. (Tr. 27-28.)
Regarding daily activities, Plaintiff testified that she was the primary care giver for
her children and had no problems taking care of them and doing normal things around the
house such as cooking. Plaintiff also testified that her twenty-one year old daughter
9

helped her with the laundry and shopping. Plaintiff also testified that others took her
children to doctor’s appointments. Plaintiff stated that she did some driving and could
walk about a block, but had pain standing or sitting, each of which she could only do for
twenty-five or thirty minutes before having to change position. Plaintiff testified that she
could lift no more than a gallon of milk and never picked up her son because he can
“crawl up on my lap. We have it so that he can get in and out by himself.” (Tr. 28-30.)
Regarding her mental health issues, Plaintiff testified that she had taken Prozac
that worked initially, but now took Cymbalta, which she found helpful. Plaintiff further
testified that she saw a counselor approximately once a week. Plaintiff claimed that she
cried a lot, had anxiety and panic attacks, and had racing thoughts about things she could
no longer do. (Tr. 28-31.)
Plaintiff testified that she weighed about 248 pounds at the time of the hearing.
At this point, Plaintiff’s attorney interjected, stating that the record contained evidence
that Plaintiff had a BMI of 40. (Tr. 31-32.)
Upon questioning by her attorney, Plaintiff testified that in the last year she had
experienced headaches four to five times a week, lasting four to five hours each. Plaintiff
stated that she took ibuprofen for the headaches, and that they caused light sensitivity and
required her to “just go to bed until it subsides.” Plaintiff testified that the headaches had
only begun occurring at that intensity within the last year.
Plaintiff then testified that she had had carpal tunnel syndrome for approximately
two years and that it affected her ability to hold things and made her drop things.
10

Plaintiff further testified that numbness in her hands due to carpal tunnel syndrome
awakened her two or three times a night, and that, in 2004, she fractured her left wrist,
which still swells and throbs.
Plaintiff also testified that she had bad stomach problems such that about six
months ago, she began to vomit eight to twelve times a week. She stated that she could
not identify a change or condition that caused the vomitting. (Tr. 33-35.)
Plaintiff next stated that she had numbness in her right leg from her hip to her
knee, which doctors attributed to a pinched nerve. She also testified that she had blood
clots and varicose veins in her left leg, requiring elevation of that leg for most of the day.
Plaintiff further testified that she experienced clotting in her legs for fourteen to twenty
days out of a month. Plaintiff also testified that, from August 30, 2007, the alleged
disability onset date, until twelve months before the hearing, the clotting occurred less
frequently, about once a month, but that sometimes it lasted longer than seven to ten
days. Plaintiff stated that when she had clots in her legs, she had to sit with her legs
elevated, on the couch or in a recliner, for at least eight hours. Plaintiff stated that the
blood clots could be triggered if she bumped or hit her leg and that they were very
painful, causing a burning sensation and pain when touched or bumped. (Tr. 35-37.)
Plaintiff then testified that she had broken her right ankle in 1994 or 1995 and had
to have two screws inserted in the bone. Plaintiff claimed her ankle still “gave out” on
her sometimes and swelled five to six times every day, requiring elevation for thirty
minutes. Plaintiff testified that the swelling began when she broke it and that when she
11

was at work she had to elevate her foot on a “box or something.” (Tr. 38-39.)
Plaintiff testified that beginning about two years ago, for no particular reason that
she could identify, her depression made her cry for four to five hours every day. Plaintiff
also testified that some days she would not get dressed, that she would stay in her night
clothes three days a week, and that more than twice a week she remained in bed all day
because she would “just [not] feel like doing anything.”
Plaintiff stated that her sleep pattern was very interrupted, that she could not sleep
through the night, and awakened “every hour on the hour” about five or six times a night.
Plaintiff testified that panic attacks and nightmares of someone chasing her and trying to
kill her children awakened her three to four times a week. Plaintiff testified that during
her panic attacks, which occurred two or three times a week, and without any obvious
trigger, she could not breathe, would have chest pains and would “get really scared.”
Plaintiff further testified that she had had panic attacks for six months and that the
Cymbalta made them milder, reducing the chest pains. Plaintiff also testified that she had
difficulty falling asleep and would lay awake with racing thoughts about things she could
not do, things she wished she could do, and things she wanted to do. Plaintiff further
testified that she did not sleep during the day unless she had a headache. (Tr. 39-41.)
Plaintiff testified that she did not like being around crowds and that they scared
her because she “did [not] know what they [were] saying about [her].” Plaintiff testified
that this fear prevented her from going out, but that when she would leave her house, she
would usually be gone all day but not stay overnight anywhere. Plaintiff claimed she
12

only left her house once a month, usually accompanied by her daughter, so that she could
return home if she got sick. Plaintiff testified that she did not drive far because driving
scared her. (Tr. 41-43.)
Upon questioning by her attorney, Plaintiff stated that her father, daughter and
cousin helped her around the house with tasks such as lifting, laundry, vacuuming and
outside work. Plaintiff testified that her father, in particular, would come over every day
for at least two or three hours to help with her children. Plaintiff’s attorney reminded her
that earlier she had testified that she had no trouble caring for her children. In response,
Plaintiff stated she could not lift her son or get on the floor to play with him, but that was
her only problem. Upon further questioning, Plaintiff stated that her father watched her
children when she had a bad headache, as she often did two or three times a week for
three or four hours, but that she did not consider this a problem taking care of her
children. (Tr. 44-46.)
In response to the VE’s request for additional information regarding an exhibit
referring to a job where Plaintiff operated a sewing machine, Plaintiff testified that she
had been a sewing machine operator and a sealer at a glove factory for approximately a
year beginning in 1996, and that neither position required heavy lifting but did require
part time standing. The VE then asked Plaintiff some additional questions about her
work history.9 (Tr. 47-50.)

9

None of these aspects of Plaintiff’s work history are at issue here.
13

The ALJ then asked the VE to classify Plaintiff’s past work experience. Given the
variety of positions Plaintiff had held, the VE stated that she had worked at various
levels, including light and unskilled, light and semi-skilled, medium and unskilled, and
medium and semi-skilled. The ALJ asked the VE to consider a hypothetical individual of
Plaintiff’s age, education level, and past work experience limited to performing light
exertional level work. The ALJ further specified that the individual could never climb
ropes, ladders, or scaffolds, could occasionally climb stairs and ramps, and was limited to
frequent, but not constant, fine manipulation or “fingering.” The ALJ added that the
individual should avoid concentrated exposure to unprotected heights, excessive
vibration, hazardous machinery, and was limited to performing unskilled work only,
requiring no more than occasional contact with the general public.
The VE opined that such an individual could not do any of Plaintiff’s past relevant
work, but that there would be other jobs at the light and unskilled level in the national
regional economy, such as bench assembly, children’s attendant, or office helper that
such an individual could perform. (Tr. 50-51.)
The ALJ next asked the VE to consider a second hypothetical individual restricted
to sedentary work that would allow the individual to alternate between sitting and
standing every thirty minutes, but still work a full eight hour day. He posited that this
individual could occasionally climb stairs and ramps, but never climb ropes, ladders or
scaffolds, could occasionally stoop, kneel, crouch and crawl, with the remaining nonexertional limitations as the first hypothetical individual.
14

The VE testified that such an individual could not perform any of Plaintiff’s past
relevant work, but that other jobs suitable for such an individual existed in plentiful
numbers in the national economy, for example, the assembly, packaging, or stuffing of
smaller items like cosmetics, pharmaceuticals, and toys. (Tr. 52-53.)
The ALJ then asked the VE to consider a third hypothetical individual with the
same non-exertional limitations as the second individual, but requiring occasional
unscheduled disruptions of the workday and workweek secondary to the effects of
medication, the need to lay down for extended periods of time and potential periods of
decompensation. The VE responded that there would be no jobs in the national economy
for such an individual.10 (Tr. 53.)
ALJ’s Decision of June 26, 2009 (Tr. 5-19)
The ALJ first found that Plaintiff met the insured status requirements of the Social
Security Act through December 31, 2011, and had not engaged in substantial gainful
activity since August 30, 2007, the alleged onset date. He further determined that
Plaintiff had the following “severe” impairments: a history of phlebitis, degenerative disc
disease of the lumbar spine, obesity, depression, and carpal tunnel syndrome. The ALJ
found, however, that none of Plaintiff’s impairments, alone or in combination, met the

10

Plaintiff’s attorney then requested a psychiatric evaluation, which the ALJ
pointed out had already occurred on December 23, 2008, and had been submitted as
Exhibit 15F. The attorney then withdrew his request. (Tr. 53-54.)
15

requirements of a deemed-disabling impairment as listed in the Commissioner’s
regulations. (Tr. 10.)
The ALJ then found that Plaintiff had the RFC to lift ten pounds, stand or walk
two hours out of an eight-hour workday, and sit six hours out of an eight-hour workday,
alternating every thirty minutes between sitting and standing positions to relieve her pain.
The ALJ found that Plaintiff could never climb ropes, ladders, or scaffolds; must avoid
concentrated exposure to vibration, industrial hazards and unprotected heights; but that
she could occasionally climb ramps and stairs, as well as balance, stoop, kneel, crouch,
and crawl. In addition, the ALJ determined that Plaintiff was limited to no more than
“frequent fingering with her upper extremities,” work requiring no more than simple oneor two-step instructions, and no more than occasional contact with the general public.
(Tr. 12.)
The ALJ noted that in making his RFC determination, he considered all of
Plaintiff’s symptoms and the extent to which these symptoms could reasonably be
accepted as consistent with the objective medical evidence and other evidence, as well as
opinion evidence, in accordance with the applicable regulatory requirements. In further
support of his RFC, the ALJ noted that Plaintiff last worked just before the start of her
maternity leave and attempted to return to her old job after the birth of her son. The ALJ
noted that Plaintiff was unable to return to her old position, was offered and declined a
different, lower-paying part-time job, and unsuccessfully sought other work. (Tr. 12.)
In considering Plaintiff’s physical impairments, the ALJ noted that Plaintiff’s
16

herniated lumbar disc significantly limits her exertional capacity. The ALJ then noted
that Plaintiff claimed she had to elevate her legs for eight hours per day due to
thrombophlebitis in her legs. The condition had not required any recent treatment but
allegedly caused blood clots from fourteen to twenty days per month and unrelated ankle
swelling. The ALJ also considered Plaintiff’s allegations of carpal tunnel syndrome,
asthma and frequent headaches. (Tr. 13.)
The ALJ determined that Plaintiff was able to act as the primary caretaker for her
children despite her alleged impairments, although she did require occasional help. The
ALJ also noted that despite her alleged mental impairments and reported symptoms of
frequent crying, panic attacks, racing thoughts, and disliking crowds, Plaintiff had been
able to work successfully for eight years in the pharmacy at a large retail store. (Tr. 13.)
The ALJ next determined that Plaintiff’s allegations that her disability began on
August 30, 2007, were inconsistent with records that indicated her impairments began as
early as 2005 and had persisted for years prior to that date. The ALJ noted that these
impairments, which Plaintiff now claimed made her unable to work, had not prevented
her from working prior to August 30, 2007. The ALJ pointed out that although Plaintiff
had undergone surgery related to those impairments on September 15, 2006, she
continued to work until August 30, 2007. (Tr. 13.)
Recognizing that surgery generally underscores a significant impairment, the ALJ
noted that the post-surgery records in this case indicated that the surgery successfully
relieved Plaintiff’s symptoms and that one month later Plaintiff was doing well and had
17

no complaints. The ALJ pointed out that in June, 2007, Plaintiff experienced venous
insufficiency, varicosities and spider veins, impairments that commonly occur during
pregnancy, and that on September 6, 2007, after giving birth, Plaintiff had another
surgical procedure, that again relieved her symptoms.11 The ALJ further noted that on
December 13, 2007, Dr. Adams reported that the surgical wound looked “closed and
good,” and although Dr. Adams encouraged Plaintiff to call if her condition worsened,
she did not. The ALJ opined that Plaintiff had not needed additional treatment because
her previous surgeries had successfully relieved her symptoms. The ALJ therefore
determined that these impairments no longer resulted in significant limitations. (Tr. 13.)
Next, the ALJ determined Plaintiff’s facet arthritis of the lumbar spine was not a
significant impairment, but rather consistent with someone of Plaintiff’s age and “body
habitus.” The ALJ noted that Plaintiff had full extremity strength and range of motion,
and that a later EMG failed to indicate cervical radiculopathy. The ALJ further noted that
Plaintiff had not sought aggressive treatment for her back problems, nor was she
encouraged by her doctor to do so. The ALJ determined that this evidence failed to
support Plaintiff’s allegations that her spinal impairments were disabling. (13-14).
The ALJ also found that Plaintiff’s carpal tunnel syndrome had not persisted for a

11

The Court reads the record to reflect that September 6, 2007, was merely a
Venous Doppler examination and diagnosis completed by Dr. Pritchard. As noted above
in footnote 1, notes on Plaintiff’s Wound Treatment form, completed by Dr. Adams on
December 13, 2007, indicated a surgery had occurred without mentioning specific details.
The Court does not find any medical report in the record from this surgical procedure.
(Tr. 277, 351.)
18

period of twelve months, had not required surgery, and was therefore not disabling. In
addition, the ALJ determined that Plaintiff’s testimony that she had asthma was not
supported by medical observations or testing in the record. The ALJ further concluded
that the results of Plaintiff’s October 14, 2008 neurology consultation did not indicate an
objective basis for Plaintiff’s alleged headaches and did not therefore support a finding of
disability. (Tr. 13-14.)
The ALJ considered Plaintiff’s obesity, noting that there was no persuasive
evidence that it “caused reduced respiratory capacity, skin disorders, edema, huge
calluses on her feet or coronary artery disease.” The ALJ went on to note that Plaintiff’s
treating physician had not reported that Plaintiff’s “obesity result[ed] in severe symptoms
and limitations of function, for [twelve] consecutive months in duration, despite
compliance with treatment.” (Tr. 14.)
With respect to Plaintiff’s mental impairments, the ALJ first noted that Plaintiff
had not alleged any mental impairments in her initial applications. The ALJ considered
the notes of Plaintiff’s primary care physician, Dr. Grgurich, who had prescribed Prozac
for Plaintiff’s reports of anxiety and depression. He noted that after initially refusing
treatment, Plaintiff saw a counselor, to whom Plaintiff reported long-term mental
impairments. The ALJ concluded that the absence of documentation of consistently
limiting symptoms, the lack of a long-term history of problems or treatment, and the
temporary nature of Plaintiff’s mental health complaints, related specifically to difficulty
coping with the loss of a job and a relationship, undermined Plaintiff’s allegations that
19

her mental impairments were part of a disabling combination of impairments. Rather, the
ALJ found that Plaintiff’s mental condition reflected recent adverse occurrences rather
than a chronic or long-lasting mental impairment. (Tr. 15.)
The ALJ also considered Dr. Harden’s December 23, 2008 mental status
examination where Plaintiff reported not only a twenty year history of depression, but
also that she regularly performed a substantial number of activities of daily living. The
ALJ found Plaintiff’s ability to perform these activities inconsistent with allegations of a
disabling mental impairment. The ALJ further noted Dr. Harden’s observations that
Plaintiff had satisfactory grooming, logical thought processes, intact concentration, was
fully oriented to person, place, and time and did not report hallucinations, delusions, or
suicidal thoughts. Having considered Dr. Harden’s observations and clinical findings, the
ALJ found Dr. Harden’s opinion unpersuasive because he had not treated Plaintiff prior
to this assessment, and because neither Plaintiff’s primary physician nor her counselor
recommended or noted any restrictions of her activities or her ability to work. In
addition, the ALJ found that Dr. Harden provided little explanation or support for his
opinion, relying solely on Plaintiff’s subjective reports. Finally, the ALJ determined that
Dr. Harden’s GAF assessment was inconsistent with the longitudinal medical evidence of
Plaintiff’s mental impairments for twelve continuous months and the medical record as a
whole. (Tr. 16-17.)
At step five, the ALJ concluded that Plaintiff’s medically determinable
impairments could reasonably be expected to cause some of the alleged symptoms;
20

however, he determined that Plaintiff’s statements regarding the intensity, persistence,
and limiting effects of those symptoms were not fully supported by the medical record
and were credible only to the extent they were consistent with the RFC determination.
(Tr. 17.)
Next, the ALJ determined that Plaintiff was unable to perform any past relevant
work; was at forty-three, a younger individual age eighteen to forty-four; had at least a
high school education; was able to communicate in English; and had no transferable
skills. (Tr. 17.)
The ALJ found credible the VE’s testimony that jobs such as “assembler,”
“packager,” and “stuffer,” consistent with the limitations specified for a person of
Plaintiff’s age, education, work experience, and residual functional capacity, existed in
significant numbers in the national economy, and determined that Plaintiff was capable of
making a successful adjustment to such other work. Therefore, the ALJ found Plaintiff
“not disabled” from August 30, 2007, through June 26, 2009, the date of his decision.
(Tr. 18.)
DISCUSSION
Standard of Review and Statutory Framework
In considering the denial of Social Security disability benefits, a court “must
review the entire administrative record to ‘determine whether the ALJ’s findings are
supported by substantial evidence on the record as a whole.” Johnson v. Astrue, 628
F.3d 991, 992 (8th Cir. 2011). A court “may not reverse . . . merely because substantial
21

evidence would support a contrary outcome. Substantial evidence is that which a
reasonable mind might accept as adequate to support a conclusion.” Id. (citation
omitted); see also Hacker v. Barnhart, 459 F.3d 934, 936 (8th Cir. 2006) (explaining that
the concept of substantial evidence allows for the possibility of drawing two inconsistent
conclusions, and therefore, embodies a “zone of choice,” within which the Commissioner
may decide to grant or deny benefits without being subject to reversal by the reviewing
court).
To be entitled to benefits, a claimant must demonstrate an inability to engage in
substantial gainful activity which exists in the national economy, by reason of a medically
determinable impairment which has lasted or can be expected to last for not less than 12
months. 42 U.S.C. § 423(d)(1)(A). The Commissioner has promulgated regulations,
found at 20 C.F.R. § 404.1520, establishing a five-step sequential evaluation process to
determine disability. The Commissioner begins by deciding whether the claimant is
engaged in substantial gainful activity. If so, benefits are denied. If not, the
Commissioner determines whether the claimant has a “severe” impairment or
combination of impairments. A severe impairment is one which significantly limits a
person’s physical or mental ability to do basic work activities. 20 C.F.R. § 404.1521(a).
If the claimant does not have a severe impairment that meets the duration
requirement, the claim is denied. If the impairment or combination of impairments is
severe and meets the duration requirement, the Commissioner determines at step three
whether the claimant’s impairment meets or is equal to one of the deemed-disabling
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impairments listed in the Commissioner’s regulations. If not, the Commissioner asks at
step four whether the claimant has the RFC to perform her past relevant work. If so, the
claimant is not disabled. If she cannot perform her past relevant work, the burden of
proof shifts at step five to the Commissioner to demonstrate that the claimant retains the
RFC to perform work that is available in the national economy and that is consistent with
the claimant’s vocational factors. Phillips v. Astrue, 671 F.3d 699, 701-02 (8th Cir.
2012).
A.

Substantial Evidence Supports the ALJ’s RFC Determination
Plaintiff asserts that the RFC determination is not supported by the record.

Specifically, Plaintiff contends that, in making his RFC determination, the ALJ
improperly discounted Plaintiff’s testimony, failed to consider the written testimony of
her daughter, failed to consider the effect of obesity on her other impairments, and failed
to give proper weight to the opinion of Dr. Harden, a consulting physician.
The RFC represents the most a claimant can do despite the combined effects of her
credible limitations, and reflects her ability to perform work activity on a regular and
continuing basis. See 20 C.F.R. §§ 404.1545, 416.945. The responsibility for assessing
RFC lies with the ALJ, and the assessment should be “based on all the evidence in the
record, including ‘the medical records, observations of treating physicians and others, and
an individual’s own description of his limitations.’” Krogmeier v. Barnhart, 294 F.3d
1019, 1024 (8th Cir. 2002) (quoting McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir.
2000)); see also 20 C.F.R. §§ 416.927(a), 416.946(c).
23

A claimant’s RFC is the most an individual can do despite the combined effects of
her credible limitations. 20 C.F.R. § 404.1545.
1.

Credibility of Plaintiff’s Subjective Complaints

In arriving at an RFC determination, an ALJ also must determine whether the
claimant’s description of her impairments is credible in light of the factors identified in
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). Under Polaski, the relevant
considerations are: “(1) the claimant’s daily activities; (2) the duration, intensity, and
frequency of pain; (3) the precipitating and aggravating factors; (4) the dosage,
effectiveness, and side effects of medication; (5) any functional restrictions; (6) the
claimant’s work history; and (7) the absence of objective medical evidence to support the
claimant’s complaints.” Renstrom v. Astrue, 680 F.3d 1057,1065-66 (8th Cir. 2012)
(quoting Moore v. Astrue, 572 F.3d 520, 524 (8th Cir. 2009)).
“The ALJ is not required to discuss methodically each Polaski consideration, so
long as he acknowledge[s] and examine[s] those considerations before discounting a
claimant’s subjective complaints.” Partee v. Astrue, 638 F.3d 860, 865 (8th Cir. 2011)
(internal quotation omitted). Because the ALJ gave good reasons for discounting
Plaintiff’s credibility, and those reasons find support in the record, the Court will defer to
the ALJ’s credibility determinations. See Perkins v. Astrue, 648 F.3d 892, 900 (8th Cir.
2011) (“If the ALJ discredits a claimant’s credibility and gives a good reason for doing
so, we will defer to its judgment even if every factor is not discussed in depth.”) (internal
quotation marks and citation omitted).
24

The ALJ properly considered the inconsistencies between Plaintiff’s subjective
complaints and her reported activities of daily living, noting that these activities were
“not limited to the extent one would expect, given the complaints of disabling symptoms
and limitations.” (Tr. 11.) The fact that Plaintiff left her last employment due to factors
unrelated to her alleged disabilities, having last worked on August 30, 2007, the day
before she gave birth to her son and began her maternity leave, also provides a basis for
the ALJ’s determination that plaintiff’s subjective complaints were not credible. (Tr. 8,
17, 25, 128.) See Goff v. Barnhart, 421 F.3d 785, 793 (8th Cir. 2005) (noting that
“[c]ourts have found it relevant to credibility when a claimant leaves work for reasons
other than her medical condition”). Further, Plaintiff’s own testimony established that
she intended to return to work, and tried to do so, but that other, nonmedical factors
unrelated to her claims of disability frustrated this plan. (Tr. 25-26.) See 20 C.F.R. §§
404.1566(c), 416.966(c) (“We will determine that you are not disabled if your residual
functional capacity and vocational abilities make it possible for you to do work which
exists in the national economy, but you remain unemployed because of . . . [y]our
inability to get work.”).
In addition, the ALJ properly noted that Plaintiff had worked for several years
while experiencing the alleged impairments, and that she failed to offer evidence that
these impairments had worsened significantly just prior to or after the alleged date for
onset of disability. See Martise v. Astrue, 641 F.3d 909, 924 (8th Cir. 2011) (noting that
a condition “that was not disabling during working years and has not worsened cannot be
25

used to prove present disability”) (citation omitted); Naber v. Shalala, 22 F.3d 186, 189
(8th Cir. 1994). Finally, the ALJ’s finding that Plaintiff received relatively conservative
medical treatment and did not seek additional treatment, forms an appropriate basis for
discounting the credibility of her complaints of disabling pain. (Tr. 14.) See Davis v.
Apfel, 239 F.3d 962, 967 (8th Cir. 2001) (holding that an ALJ may properly consider a
claimant’s failure to make significant efforts to seek medical treatment to alleviate alleged
pain).
2.

Testimony of Plaintiff’s Daughter

Plaintiff also asserts that the ALJ erred by failing to mention and consider the
written testimony of her daughter. (Doc. No. 13-7, 8E.) That written testimony is largely
consistent with Plaintiff’s own testimony, recounting Plaintiff’s alleged physical and
mental impairments, and her daughter’s opinion that Plaintiff is unable to work.
“While it is preferable that the ALJ delineate specific credibility determinations for
each witness, an arguable deficiency in opinion-writing technique does not require [the
Court] to set aside an administrative finding when that deficiency has no bearing on the
outcome.” Buckner v. Astrue, 646 F.3d 549, 559 (8th Cir. 2011) (quoting Robinson v.
Sullivan, 956 F.2d 836, 841 (8th Cir. 1992)).
The record12 establishes that the ALJ considered the testimony of Plaintiff’s
daughter, but that he did not specifically outline his reasons for rejecting that testimony.

12

In his opinion, the ALJ stated: “[t]he [Plaintiff’s] file contains numerous third
party statements. These have been considered.” (Tr. 8.)
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Although explicit findings concerning the credibility of and weight given to the testimony
of each witness are preferable, the absence of such specific findings does not require
reversal. Buckner, 646 F.3d at 559. The ALJ’s failure to make explicit his reasons for
discounting a third party’s testimony are not fatal where, as here, the same evidence that
the ALJ referred to in discrediting Plaintiff’s claims also discredits her daughter’s claims.
Id.; see also Lorenzen v. Chater, 71 F.3d 316, 319 (8th Cir.1995); Robinson, 956 F.2d at
841.
3.

The ALJ Properly Discounted the Opinion of Dr. Harden

Plaintiff asserts that the ALJ failed to give proper weight to the opinion of Dr.
Harden, the consulting physician to whom Plaintiff was referred for a consultative
evaluation in conjunction with her application for Medicaid services. Dr. Harden’s
diagnostic impressions included recurrent major depressive disorder, posttraumatic stress
disorder, and dependent personality traits. (Tr. 388.) He assigned Plaintiff a GAF score
of 50. Dr. Harden concluded that Plaintiff had an inadequately treated major depressive
disorder and that she appeared to be in need of ongoing psychiatric care including psycho
pharmacologic treatment and ongoing counseling. (Tr. 386-88.)
A number of factors, including the examining relationship, the treatment
relationship, the length of the treatment relationship and frequency of examination, the
consistency of the source’s opinion, and whether the source is a specialist in the area
govern the weight properly accorded a medical opinion. See 20 C.F.R. § 404.1527(c).
The ALJ must give controlling weight to the opinion of a treating medical source as to the
27

nature and severity of an impairment, if that opinion “is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other
substantial evidence in [the] case record.” Id. § 404.1527(c)(2). The opinions of
consultative physicians such as Dr. Harden are generally given less weight due to the
absence of a long term treatment relationship and the isolated nature of the examination.
See Teague v. Astrue, 638 F.3d 611, 615 (8th Cir. 2011) (finding that “[a] single
evaluation by a non-treating psychologist is generally not entitled to controlling weight”);
Wagner v. Astrue, 499 F.3d 842, 849 (8th Cir. 2007) (the opinion of a consulting
physician who examined Plaintiff only once or not at all does not constitute substantial
evidence) (citation omitted).
In this case, the ALJ properly discounted Dr. Harden’s opinion due to his lack of
previous and ongoing contact with Plaintiff. (Tr. 16.) Wagner, 499 F.3d at 849. In
addition, the ALJ noted and the Court agrees that Dr. Harden’s findings, including the
GAF score he assigned, were inconsistent with the “longitudinal medical evidence.” The
ALJ noted that Dr. Harden had never treated Plaintiff prior to assigning the GAF score
nor did he have an ongoing relationship with Plaintiff. In addition to the fact that Harden
saw the claimant only once, the ALJ found that the medical records indicated less
significant symptoms than those implicit in a GAF of 50. The ALJ also noted that the
observations of Mr. Mozingo, the counselor who treated Plaintiff for a longer period of
time, were inconsistent with significant mental impairments and with Hardens’ findings.
Mr. Mozingo found many of Plaintiff’s mental symptoms related to short term problems,
28

including job loss and relationship difficulty. He also noted a cooperative attitude,
average intelligence, good grooming and intact insight and judgment, all characteristics
which the ALJ found inconsistent with long term significant mental impairment. (Tr. 1516.) See Perkins v. Astrue, 648 F.3d 892, 897-98 (8th Cir. 2011) (holding that an ALJ
may discount a medical opinion where other medial assessments are supported by more
through medical evidence); see also Choate v. Barnhart, 457 F.3d 865, 869 (8th Cir.
2006) (holding that medical opinions are not, in any case, “automatically controlling,”
because the record must be evaluated as a whole”).
B.

The ALJ Properly Considered the Effect of Plaintiff’s Obesity
Plaintiff asserts that the ALJ failed to consider the effect of her obesity13 and

whether it exacerbated her impairments of herniated disc, arthritic changes in her back,
and pain in her ankle. Upon review of the record the Court finds that the ALJ explicitly
referenced Plaintiff’s obesity and its possible effect on her other limitations and alleged
impairments. (Tr. 14.) Although Plaintiff demonstrated evidence of obesity as a
medically determinable impairment, she failed to demonstrate that this impairment, either
alone or in combination with other impairments, limited her capacity for basic workrelated activities as defined in 20 C.F.R. §§ 404.1521(b), 416.921(b) (defining “basic
work activities” as those abilities and aptitudes necessary to do most jobs). As the ALJ

13

During the relevant period, Plaintiff’s height was 66 inches and her weight
ranged between 223 and 248 pounds. (Tr. 129.) Plaintiff therefore had a body mass
index (BMI) between 36 and 40, well within the range for obesity.
29

noted, the record does not support Plaintiff’s contention that her obesity caused “reduced
respiratory capacity, skin disorder, edema, huge calluses on her feet, or coronary artery
disease.” (Tr. 14.) Moreover, in her disability reports, Plaintiff alleged that a variety of
problems associated with her legs limited her ability to work. (Tr. 130.) While she
testified at length about the difficulties she had with work-related activities, she did not
report that her weight was the cause of any functional limitation. Therefore, the record
indicates that the ALJ considered Plaintiff’s obesity, but found no evidence that her
obesity alone or in combination with other impairments rendered her disabled. See
Martise, 641 F.3d at 924 (finding that the ALJ properly considered whether impairments
in combination were disabling by separately discussing each impairment and assessing,
affective disorder, and complaints of pain, as well as her daily level of activities); Heino
v. Astrue, 578 F.3d 873, 881-82 (8th Cir. 2009) (quotation omitted) (holding that where
the ALJ “specifically referred” to the claimant’s obesity, such consideration is sufficient
to avoid reversal).
C.

The VE’s Opinion and the Third Hypothetical Question
Plaintiff also contends that the ALJ erred in failing to give sufficient weight to the

VE’s response to the third hypothetical question posed by the ALJ. In that hypothetical
the ALJ asked the VE to consider an individual who needed occasional, unscheduled
breaks during the workday, needed to lie down for extended periods of time due to
medication side effects, experienced an inability to concentrate, and had periods of
decompensation. The VE opined that such an individual would not be employable.
30

Plaintiff argues that the ALJ erred by failing to rely on the VE’s opinion in this regard
and asserts that the medical evidence on the record supports a finding that she has each of
the limitations set forth in the third hypothetical.
When a claimant establishes that she can no longer perform her past work, the
burden shifts to the Commissioner to establish that other jobs exist that the claimant can
perform considering the claimant’s impairments and vocational factors. 20 C.F.R. §
404.1560(c)(2). If nonexertional limitations are at issue, the Commissioner must solicit
testimony from a VE to establish whether there are jobs in the national economy that the
claimant can perform. The hypothetical question posed to the VE is “sufficient if it sets
forth impairments supported by substantial evidence in the record and accepted as true.”
Goff v. Barnhardt, 421 F.3d 785, 794 (8th Cir. 2005) (internal quotations omitted);
Rautio v. Bowen, 862 F.2d 176, 180 (8th Cir. 1988). Where a hypothetical question
precisely sets forth all of the claimant’s physical and mental impairments, a VE’s
testimony constitutes substantial evidence in support of the ALJ’s decision. Robson v.
Astrue, 526 F.3d 389, 392 (8th Cir. 2008). However, “[t]he ALJ’s hypothetical question
to the vocational expert needs to include only those impairments that the ALJ finds are
substantially supported by the record as a whole.” Martise, 641 F.3d at 927 (citation
omitted). Just as “the ALJ was not obligated to include limitations from opinions he
properly disregarded,” he could not rely upon a hypothetical that included limitations
unsupported by the record. Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir. 2010).
Here the second hypothetical propounded by the ALJ summarized the limitations
31

that the ALJ found credible and were supported by the record. He properly relied on the
VE’s response to this hypothetical in determining that there were jobs in the national
economy which Plaintiff could perform. (Tr. 18). By contrast, the ALJ’s third
hypothetical included not only limitations that the ALJ found substantially supported by
the record as a whole but also limitations (specifically, the need for occasional,
unscheduled breaks during the workday and to lie down for extended periods of time due
to medication side effects, an inability to concentrate, and periods of decompensation)
that the ALJ did not find supported by the record. Therefore, the third hypothetical
contained elements unsupported by substantial evidence, and the ALJ was not required to
rely on the VE’s response to that hypothetical in reaching his determination. See
Buckner, 646 F.3d at 561(holding that VE’s testimony constitutes substantial evidence
only when it is based on hypothetical that accounts for proven impairments); Renstrom v.
Astrue, 680 F.3d at 1067-68 (same).
CONCLUSION
In accordance with applicable statutes and regulations, Plaintiff had a fair hearing
and received full administrative consideration of her applications for disability insurance
benefits and SSI, under Titles II and XVI of the Social Security Act, respectively, 42
U.S.C. §§401-434 and §§1381-1383(f). Substantial evidence on the record as a whole
supports the Commissioner’s decision regarding Plaintiff’s application.

32

Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
AFFIRMED.
A separate Judgment shall accompany this Memorandum and Order.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

Dated this 11th day of September, 2012.

33