Reeves 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 9/28/12. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
LESLEY REEVES,

)
)
Plaintiff,
)
)
v.
)
)
MICHAEL J. ASTRUE, Commissioner )
of Social Security,
)
)
Defendant.
)

Case No. 2:11CV36 FRB

MEMORANDUM AND ORDER
This matter is on appeal from an adverse ruling by the
Commissioner of Social Security.

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.
In

Procedural Background

February

of

2009,

plaintiff

Lesley

Reeves

(“plaintiff”) applied for Supplemental Security Income (“SSI”)
under

Title

XVI

of

the

Social

Security

Act

(“Act”)

and

for

Disability Insurance Benefits (“DIB”) under Title II of the Act,
alleging that she became unable to work due to disability on
October 1, 2007.

(Administrative Transcript (“Tr.”) 125-40).

After her applications were denied, she requested a hearing before
an administrative law judge (“ALJ”) which was held on October 16,
2009.

(Tr. 35-75).

On November 4, 2009, the ALJ issued a decision

in which he determined that plaintiff was not disabled under the
-1-

Act.

(Tr. 21-34).
Plaintiff sought review from defendant agency’s Appeals

Council, which denied her request for review on March 11, 2011.
(Tr. 1-3).

The ALJ’s decision thus stands as the Commissioner’s

final decision under 42 U.S.C. § 405(g).
II.
A.

Evidence Before The ALJ

Plaintiff’s Testimony
The

administrative

hearing

responding to questions posed by the ALJ.

began

with

plaintiff

Plaintiff, age 31 at the

time of the administrative hearing, testified that she was married
and lived in a mobile home with her husband and two children, aged
thirteen and six.

(Tr. 39-40).

Plaintiff testified that she was

five feet, two inches tall and weighed three hundred and sixteen
pounds; was right-handed; and had a valid driver’s license with no
restrictions.

(Id.)

She testified that she completed the ninth

grade and had been enrolled in special education classes, and made
an unsuccessful attempt to obtain a G.E.D.

(Tr. 40-41).

Plaintiff’s most recent employment was as a part-time day
care worker.

(Tr. 41).

Plaintiff left this employment in 2007

because “[i]t was low hours and I had pain starting really, it was,
more pain.”

(Tr. 41, 43).

Plaintiff’s last full-time job, in

which she worked in a factory assembling hoses, ended in 2001.
(Tr. 41-42).

She testified that she left this job because she was

laid off, and she received unemployment benefits.

-2-

(Tr. 42).

Plaintiff testified that she also worked in the past as an order
taker.

(Tr. 42).
Regarding her physical conditions, plaintiff testified

that

she

could

not

stand

fibromyalgia and arthritis.

on

her

feet

(Tr. 44).

for

very

long

due

to

Plaintiff and the ALJ then

had the following exchange:
Question (by the ALJ):
it?

Okay.

Anything else or is that

. . .
Answer (by plaintiff):

Physical? No, that’s it.

Q:
You also have an issue with your weight is that
right?
A:

Yes, yes sir.

Q:
Okay. Now your conditions if you take them together
they affect your ability to do basic work functions like
standing and walking because of that?
A:

Yes sir.

Q:

How about sitting?

A:

I can do it but it’s just painful.

Q:

Lifting and carrying difficult?

A:

Yes sir.

Q:

Are you getting treatment for your conditions?

A:

Yes sir.

Q:

Who do you see?

A:

I see Dr. Jackson and Dr. Glanton [phonetic].

Is that difficult for you?

(Id.)
Plaintiff described Dr. Jackson as a rheumatologist, and
-3-

Dr. Glanton as a pain specialist.

(Tr. 45).

She testified that

her pain medications helped her and caused no side effects.

(Tr.

46-47).
Plaintiff testified that she rose in the morning at 6:30,
woke her daughter, fed her breakfast, helped her get dressed, and
then watched her go to the bus stop at 7:30.

(Tr. 47).

Plaintiff

then took her medication and laid down for two to three hours.
(Tr. 47-48).

She rose again at 11:00 and took her “noon meds,” and

took food from the freezer for dinner.

(Tr. 48).

She then

“[tried] to pick up the house a little” until about 3:00 in the
afternoon.

(Id.)

At 3:00, plaintiff relaxed with her feet

elevated until about 5:00, after which she had an hour of “family
time” with her family, and then the family helped prepare the
evening meal, which they ate at 7:00 or 7:30.

(Tr. 48-49).

After

the evening meal, plaintiff ensured that the children bathed, and
everyone in the household went to bed at 8:30 or 9:00.

(Id.)

Plaintiff testified that she could dress herself, groom
and bathe herself, go grocery shopping, do laundry, and do dishes
if seated in a chair.
50).

(Tr. 49-50).

She could not sweep.

(Tr.

Plaintiff’s hobbies included using the computer and talking

to family.

(Id.)

Plaintiff testified that she owned a treadmill

and tried to walk on it for exercise.

(Id.)

The ALJ asked plaintiff what psychological conditions
affected her ability to work, and plaintiff testified “mental
depression, lack of skills.”

(Id.)
-4-

Plaintiff testified “I have

depression that bothers me, mentally upsetting, thinking.”
51).

(Tr.

She explained that, in a work setting, her depression would

cause her to worry about what’s going on and what was happening,
and would affect her concentration.
saw

her

family

doctor

for

(Id.)

treatment

She testified that she

for

depression.

(Id.)

Plaintiff denied ever having any formal mental health treatment
with a counselor, therapist, psychiatrist or psychologist, but
stated that she did go to “Mark Twain Area Counseling” for an
evaluation.

(Tr. 51-52).

Plaintiff testified that the medication

she took helped her depression.

(Tr. 52).

Plaintiff testified that she saw her family/friends at
least once per month, both in their homes and in hers.

(Id.)

Plaintiff belonged to a club called Northeast Scholarship Pageant.
(Tr. 53).
Plaintiff testified that she had no difficulty getting
along with others, but did have trouble concentrating.

(Id.)

The

ALJ asked plaintiff to give an example “of a specific time you had
a problem” with concentration, and plaintiff testified “[m]y son
was taken on December 27 and it made me have a lot of concentration
problems.”

(Id.)

Plaintiff explained that her son was taken to

“DYS” because he “had trouble not wanting to go to school.”

(Id.)

Plaintiff testified that she had constant pain “all over”
which

she

characterized

as

burning

exacerbated by physical activity.
she could lift five pounds.

sharp,

(Tr. 54).

(Id.)
-5-

and

and

which

was

She testified that

She testified that, in an

eight-hour day, she could walk and sit for four hours, and could
stand for three hours.

(Tr. 54-55).

Plaintiff testified that she

had problems with using the pedals when driving inasmuch as her
feet “start aching and hurting kind of.”

(Tr. 55).

Plaintiff then responded to questions from her attorney.
Plaintiff testified that there were some days she could not even
walk on her treadmill for two minutes.

(Tr. 56).

She testified

that she could walk less than a block before needing to rest, and
that she used a cane.

(Id.)

She testified that she could walk on

the street for only five or ten minutes before needing to rest for
fifteen minutes.

(Tr. 57). Plaintiff testified that she knew that

there were sixty minutes in an hour.

(Id.)

She testified that she

did everything in a computer-type chair with wheels, and used a
hand-held “grabber” to help her pick up objects.
testified

that

machine.

(Id.)

she

did

laundry

while

leaning

(Tr. 58).
up

against

She
the

Plaintiff testified that, when shopping, she used

an electric wheel chair.

(Tr. 59).

She testified that she

required help with bathing inasmuch as her husband had to help her
get out of the tub, and that she had trouble putting on her socks
and shoes.

(Id.)
Plaintiff then testified that she suffered from migraine

headaches that occurred twice per week and lasted for three hours
each; that sometimes caused nausea; and necessitated the use of

-6-

Darvocet1 and lying down in a dark room.

(Tr. 60).

She testified

that her fibromyalgia affected her back, knees, feet, elbows,
shoulders, and hands.

(Tr. 61).

She testified that she had

undergone carpal tunnel release surgery in 2002, and had daily pain
and symptoms in both of her hands to the point she was unable to
“grab” things. (Tr. 61-62).

Plaintiff testified that she suffered

from extreme urinary incontinence three times per week and soiled
her clothing to the point she had to change.

(Tr. 62-63).

She

testified that Lasix caused daily swelling and pain in her feet and
hands and calves.

(Tr. 63).

She testified that she had trouble

going to sleep, and that once she fell asleep she woke every hour
due to pain in her knees and back.

(Tr. 65-66).

pillows to use to prop herself in bed.

She required six

(Tr. 66).

Plaintiff

testified that she had no energy and napped in the morning and in
the afternoon depending on whether “something’s going on at school
or something.”

(Id.)

Plaintiff testified that she had trouble with her memory.
(Tr. 67). When asked to explain this, plaintiff testified that she
had “blockage of [her] childhood and concentration problems.”
(Id.)

Plaintiff explained that, when she was five years old, her

mother left her at a gas station, and her grandmother came to get
her and raised her from that point forward.

(Id.)

Plaintiff testified that she had crying spells that

1

Darvocet N-100 Propoxyphene is used to relieve mild to moderate pain.
http://www.nlm.nih.gov/medlineplus/druginfo/medmaster/a682325.html

-7-

occurred “[a]t least every other day” and lasted for two to three
hours.

(Tr. 68).

approximately

She testified that she had panic attacks

three times per month, during which she became

“emotionally worked up” and cried for three to four hours.
68-69).

(Tr.

She testified that, four times per week, her depression

caused her to not get out of bed or get dressed.

(Tr. 69-70).

She

testified that she could only stand for three to five minutes
before needing to rest for ten to fifteen minutes.

(Tr. 70).

The ALJ then heard testimony from a vocational expert
(also “VE”). The ALJ elicited detailed background information from
the VE concerning, among

other things, the classification of

plaintiff’s past work, and presented the VE with a hypothetical
question.

(Tr. 71-73).

The VE testified that such a person would

be unable to perform plaintiff’s past work, but could perform
various other work existing in the local and national economies,
such as final assembler, table worker, and hand labeler.
74).

(Tr. 72-

The VE identified the specific codes for each of those

positions as provided in the Dictionary of Occupational Titles
(also

“DOT”),

and

testified

that

the

jobs

identified

were

consistent with the descriptions in the DOT and its companion
publication, the Standard Characteristics of Occupations.

(Tr.

74).
B.

Medical Records
Records from the Hannibal Clinic indicate that plaintiff

was seen on April 9 and April 23, 2007 by Jeffry Evans, M.D. with
-8-

complaints of pain in her low back and hip.

(Tr. 274-75).

Dr.

Evans noted that plaintiff “has been sort of a heavy hitter with
the narcotics.” (Tr. 275).

She had limited range of motion but no

problems with ambulation, and was given Darvocet and referred to a
pain clinic.

(Id.)

On August 8, 2007, she complained of numbness

in her hands, but testing was negative.

(Tr. 276).

She was

diagnosed with possible carpal tunnel recurrence and given braces
and anti-inflammatory medication.

(Id.)

Electromyography and

nerve conduction performed on August 10, 2007 was abnormal, (Tr.
272-73), and when plaintiff returned to Dr. Evans on August 16,
2007 he continued her medication and braces and referred her for an
orthopedic evaluation.

(Tr. 277).

Plaintiff returned to Dr. Evans on November 28, 2007 with
complaints of knee pain.
knee

crepitation.

(Tr. 279).

(Tr.

279).

Examination revealed right
She

was

diagnosed

osteoarthritis of the knees and received an injection.

with

(Id.)

On January 28, 2008, plaintiff returned to Dr. Evans “to
go over all of her health issues.”

(Tr. 280).

She reported taking

Cymbalta,2 Celexa,3 and occasional Xanax4 which worked fairly well

2
Cymbalta, or Duloxetine, is used to treat depression and generalized
anxiety disorder, and is also used to treat pain resulting from diabetic
neuropathy and fibromyalgia.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a604030.html
3

Celexa, or Citalopram, is used to treat depression.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a699001.html
4

Xanax, or Alprazolam, is used to treat anxiety disorders and panic
attacks. http://www.nlm.nih.gov/medlineplus/druginfo/medmaster/a684001.html

-9-

for her for the most part.

(Id.)

She reported sleeping reasonably

well, and that her lower extremity edema was controlled with
Lasix.5

(Id.)

Dr. Evans noted that plaintiff was morbidly obese

and that she was considering bariatric surgery.

(Tr. 280-81).

Dr.

Evans noted that plaintiff’s mood and affect were normal with no
flat affect or depressed mood, and that she was not anxious.
281).

She had trace edema in her knees. (Id.)

(Tr.

Dr. Evans opined

that plaintiff should continue her attempt at diet and exercise.
(Tr. 281).

Plaintiff received knee injection.

(Tr. 278).

Plaintiff returned to Dr. Evans on February 18, 2008 with
complaints of right foot and ankle pain after twisting it “some
months ago.”

(Tr. 283).

triglycerides.

(Id.)

She was also concerned about high

She had no other complaints.

referred to a podiatrist.

(Id.)

She was

(Id.)

On February 19, 2008, plaintiff was seen by podiatrist
Scott C. Friedersdorf, D.P.M., with complaints of right foot pain.
(Tr. 284).

Plaintiff admitted to lower back pain, but denied knee,

hip or shoulder pain.

(Tr. 284-85).

She was diagnosed with

tendonitis and told to wear supportive shoes and avoid walking
barefoot, and return in three weeks.
her follow-up appointment.

(Tr. 285-86).

She canceled

(Tr. 286).

On May 8, 2008, plaintiff saw rheumatologist Imelda P.

5

Lasix, or Furosemide, is a ‘water pill’ that is used to reduce the
swelling and fluid retention caused by various medical problems, including
heart or liver disease. It is also used to treat high blood pressure.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682858.html

-10-

Cabalar, M.D., with complaints of pain in her feet, ankles, knees,
and lower back.

(Tr. 287).

She denied swelling but had stiffness

and joint pain which was “constant throughout the day and better
with activity.”

(Tr. 287).

Plaintiff reported a history of

smoking one pack of cigarettes per day for the past four years.
(Tr. 288). Following examination, Dr. Cabalar noted that plaintiff
had diffuse achiness and multiple tender points which was very
suggestive of fibromyalgia.

(Id.)

Plaintiff returned on May 15,

2008 with continued complaints of soreness in her lower back, hips,
knees and feet.

(Tr. 289).

Dr. Cabalar noted that laboratory

testing was negative, as were x-rays of plaintiff’s lumbar spine,
hips, pelvis, and bilateral knees. (Id.)

Plaintiff had full range

of motion of both shoulders, elbows and wrists with no tenderness
or effusion.

(Tr. 290).

Dr. Cabalar prescribed Neurontin.6

(Id.)

Records from Jan Onik, D.O., indicate that plaintiff was
seen from July 30, 2008 to January 21, 2009 for various complaints,
including fibromyalgia.

(Tr. 291-96).

On March 3, 2009, plaintiff returned to the Hannibal
Clinic and saw Larry Nichols, D.O., with complaints of nasal
congestion and a cough.

(Tr. 326).

upper respiratory infection.

She was diagnosed with an

(Id.)

On April 21, 2009, Michael Stacy, Ph.D., completed a

6

Neurontin is an anticonvulsant which is used to relieve the pain of
postherpetic neuralgia (PHN; the burning, stabbing pain or aches that may last
for months or years after an attack of shingles).
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a694007.html

-11-

Psychiatric Review Technique form.

(Tr. 297-307).

Dr. Stacy

opined that plaintiff’s impairments were not severe and that her
depression and anxiety did not precisely satisfy the diagnostic
criteria as set forth.

(Tr. 300-01).

Dr. Stacy opined that

plaintiff would have a “mild” degree of limitation in maintaining
concentration, persistence, or pace, but had no other limitations.
(Tr. 305). Dr. Stacy wrote that plaintiff’s mental impairments did
“not impose significant functional restrictions.”

(Tr. 307).

On April 22, 2009, Lisa Buhr reviewed plaintiff’s medical
records and completed a Physical Residual Functional Capacity
Assessment form.

(Tr. 308-14).

Ms. Buhr opined that plaintiff

could lift ten pounds; stand and/or walk for at least two hours in
an eight-hour workday and sit for six; and could push and/or pull
without limitation.
could

only

(Tr. 309).

occasionally

postural limitations.

climb

Ms. Buhr opined that plaintiff
and

(Tr. 311).

balance,

but

had

no

other

Ms. Buhr opined that plaintiff

should avoid concentrated exposure to extreme cold and hazards, but
had no other environmental limitations.
assessed no other limitations.

(Tr. 312).

Ms. Buhr

See (Tr. 308-14).

On April 30, 2009, plaintiff saw Dr. Evans in order “to
address

depression,

anxiety,

fibromyalgia,

extremity edema, obesity and osteoarthritis.”

back

pain,

(Tr. 327).

lower
Dr.

Evans noted that plaintiff’s mood was okay, but that plaintiff
wanted her Cymbalta dosage increased and her Xanax refilled. (Id.)
Plaintiff reported that she took Xanax as needed for anxiety.
-12-

(Id.)

She reported that her back bothered her on and off, as it

had for years, and that she used “a little Tramadol”7 for that.
(Id.)

Dr. Evans noted that plaintiff had mild lower extremity

edema for which she took occasional Lasix, and that plaintiff was
trying to lose weight but was “[o]therwise getting along well.”
(Tr. 327). Musculoskeletal examination was normal, with full range
of motion and full muscle strength.

Her mood and affect

(Id.)

were normal with no flat affect or depressed mood, and plaintiff
was not especially anxious.

(Tr. 328).

On May 21, 2009, plaintiff returned to the Hannibal
Clinic and saw Robert W. Jackson, D.O., for “followup for chronic
fatigue and fibromyalgia symptoms along with chronic low back
pain.”

(Tr. 329).

Plaintiff had no radicular pain, and she denied

bowel or bladder dysfunction.

(Id.)

Dr. Jackson wrote that

plaintiff described having exercise intolerance, and was “seeking
Upon examination, Dr. Jackson

Disability for this reason.”

(Id.)

noted

trigger

diffuse

extremities,
flexion.

myofascial

with

lumbosacral

points

tenderness

and

over

plaintiff’s

limited

forward

(Id.)
On June 19, 2009, plaintiff presented to the emergency

room of Hannibal Regional Hospital with complaints of a sore throat
and ear pain.

(Tr. 349-62).

pain all over her body.

She also complained of fibromyalgia

(Tr. 350).

7

Plaintiff was diagnosed with

Tramadol, is used to relieve moderate to moderately severe pain.
http://www.nlm.nih.gov/medlineplus/druginfo/medmaster/a695011.html

-13-

a bacterial ear infection (also known as “swimmer’s ear”) and a
common cold, and discharged in stable condition.

(Tr. 353-62).

On July 20, 2009, plaintiff presented to the Hannibal
Regional Medical Group and saw Luvell Glanton, M.D., for pain
management.
aggravated

(Tr. 332-35).
by

various

Plaintiff reported low back pain

postural

maneuvers,

and

fibromyalgia

manifested by a “mild burning sensation” in her “buttocks, in the
foot, in the forearm, in the hand, in the hip, in the leg, in the
neck, in the shoulder, in the upper arm, low back, over the entire
body and upper back” with no aggravating or relieving factors.
(Tr. 332).

Facet injections were performed.

(Tr. 334-38).

On August 13, 2009, plaintiff was seen by Dr. Jackson “in
followup for her chronic fatigue and fibromyalgia symptoms.”
377).
that

She reported chronic insomnia.
Dr.

Glanton

had

performed

low

(Id.)
back

(Tr.

Dr. Jackson noted

injection,

and

that

plaintiff planned on having a radio frequency ablation procedure
(also “RFA,” an injection procedure used to relieve pain) in the
near term.

(Id.)

Musculoskeletal examination revealed “diffuse

myofascial trigger points over extremities and back, consistent
with fibromyalgia.”

(Id.)

Her medications were adjusted, and she

was advised to return in six to eight weeks.

(Tr. 377).

On August 18, 2009, plaintiff was seen at Mark Twain
Behavioral Health by Ted Oliver, a licensed clinical social worker.
(Tr. 379-82).

Plaintiff reported that she was “trying to get

Medicaid and Disability due to problems with rheumatoid arthritis
-14-

and fibromyalgia.”

(Tr. 379).

Plaintiff reported that she had

been treated for depression by her family doctor for many years and
took medication.

(Id.)

Mr. Oliver noted that plaintiff appeared

to have poor concentration but did have good hygiene, clear and
goal-directed thoughts, normal judgment and insight, and intact
recent and remote memory. (Id.) Plaintiff complained of financial
stress secondary to her husband being laid off and her inability to
work.

(Id.)

She stated that she experienced some anxiety in

social settings.

(Tr. 379).

Plaintiff reported being diagnosed

and treated for Attention Deficit Hyperactivity Disorder (also
“ADHD”) as a child, but not as an adult. (Id.)
history of psychiatric hospitalizations.

There was no

(Id.)

Mr. Oliver diagnosed plaintiff with ADHD by history,
depressive disorder, reported history of rheumatoid arthritis and
fibromyalgia and history of back problems, and chronic health
problems and financial stress.
“[i]t

appears

that

(Tr. 379-80).

[plaintiff’s]

history

Mr. Oliver wrote,
of

problems

depression is likely connected to chronic health issues.

with

She has

not been able to work due to these physical problems for several
years.”

(Tr. 380).

It is indicated that Mr. Oliver’s report was

“read and approved” by Andrew Lovy, D.O.

(Id.)

On October 7, 2009, plaintiff returned to Dr. Jackson for
follow-up

for

fatigue,

fibromyalgia,

low

back

pain

and

osteoarthritis of the weight bearing joints. (Tr. 388). Plaintiff
complained of persistent pain with the change in weather.
-15-

(Id.)

Upon examination, plaintiff had trigger points consistent with
fibromyalgia.

(Id.)

Dr. Jackson noted that plaintiff could

ambulate without assistance or adaptive aids. (Id.) He instructed
plaintiff to return in four months.

(Tr. 388).

On October 8, 2009, Dr. Glanton wrote that plaintiff had
a successful medial branch block procedure. (Tr. 396).

On October

21, 2009, plaintiff returned to Dr. Glanton with complaints of low
back pain that was aggravated by activity and not relieved by
anything.

(Tr. 403).

assistive devices.

Dr. Glanton noted that there was no use of

(Id.)

Dr. Glanton noted that plaintiff had a

poor response to the RFA procedure.
sacroiliac injection.
On

December

(Id.)

She underwent a

(Tr. 416).
2,

2009,

plaintiff

returned

to

Dr.

Friedersdorf with continued complaints of bilateral foot and ankle
pain.

(Tr. 435-36).

Dr. Friedersdorf diagnosed plaintiff with

plantar fasciitis and tendonitis, and advised plaintiff to wear
“Powersteps” inserts in a pair of supportive shoes, to never walk
barefoot, to perform stretching exercises, and to use an icing
technique.

(Tr.

435).

corticosteroid injection.

Dr.

Friedersdorf

(Tr. 436).

also

performed

Plaintiff returned for

follow-up care on December 14, 2009 and reported that she had been
wearing the Powersteps inserts in good, supportive shoes, and
reported that her foot pain had “tremendously improved.”

(Tr.

437).
On December 15, 2009, plaintiff returned to Dr. Glanton
-16-

for

a

recheck

of

fibromyalgia,

sacroiliac injection.

and

Dr.

Glanton

performed

a

(Tr. 480, 483, 485-86).

On January 30, 2010, plaintiff presented to the emergency
room of Hannibal Regional Hospital with complaints of a severe
migraine headache.

(Tr. 472).

She was treated with prescription

pain medication and discharged to home.

(Tr. 477).

On February 3, 2010, plaintiff returned to Dr. Evans “to
address chest pain, diabetes, weight gain, hyperlipidemia, sleep
apnea and fatigue.” (Tr. 438). Upon examination, plaintiff’s gait
was well-coordinated, she had full range of motion in her joints,
and full muscle strength and tone.

(Tr. 439).

for a cardiac stress test and sleep study.

She was referred

(Id.)

On February 9,

2010, plaintiff underwent an EKG, which was interpreted as normal.
(Tr. 433).

On February 10, 2010, plaintiff was seen by Bassem

Mikhail, M.D., with complaints of shortness of breath.

(Tr. 460).

Dr. Mikhail noted that plaintiff’s cardiac stress test was positive
for anterior ischemia, and recommended that plaintiff undergo
cardiac catheterization.

(Id.)

Also on February 10, 2010, plaintiff underwent a sleep
study at the Hannibal Clinic.

(Tr. 430-32).

It was noted that

plaintiff had no occurrences of apnea, but did experience numerous
arousals from sleep.

(Tr. 430).

Plaintiff was advised to take

various measures to improve her sleep, including avoiding napping
during the day.

(Tr. 431).

Plaintiff was also advised to avoid

caffeine and smoking, to not eat large meals before bed, and to
-17-

engage in regular exercise.

(Id.)

On February 17, 2010, plaintiff underwent a cardiac
catheterization at Hannibal Regional Hospital which revealed no
significant coronary artery disease, and a false positive stress
test.

(Tr. 463).
Plaintiff returned to Dr. Jackson on April 15, 2010 with

complaints of breakthrough pain despite her medications.
445).

(Tr.

She reported that she was trying to exercise a few minutes

each day on a treadmill, with the goal of exercising 30 minutes per
day in two sessions.
was

consistent

adjusted.

(Id.)

(Id.)

with

She had no edema.

fibromyalgia,

and

her

(Id.)

Examination

medications

were

Also on this date, plaintiff saw Dr. Evans with

complaints of depression, sore throat, and swollen salivary glands.
(Tr. 446).

Upon examination, plaintiff’s memory was noted to be

intact, her mood and affect appeared normal with no flat affect or
depressed mood, and she was not especially anxious.

(Id.)

She was

diagnosed with depression and an upper respiratory infection, and
was given an antibiotic.
III.

(Id.)
The ALJ’s Decision

The ALJ determined that plaintiff had not engaged in
substantial gainful activity since October 1, 2007, her alleged
onset date.

(Tr. 26).

The ALJ determined that plaintiff had the

severe impairments of obesity, osteoarthritis, and fibromyalgia,
but specifically determined that plaintiff’s medically determinable

-18-

impairments of depression and anxiety, considered singly and in
combination, caused no more than minimal limitation in plaintiff’s
ability to perform basic mental work activities and were therefore
nonsevere.

(Tr. 27).

The ALJ determined that plaintiff did not

have an impairment or combination of impairments of listing-level
severity.

(Tr. 28).

The ALJ determined that plaintiff had the

residual functional capacity (also “RFC”) to perform sedentary work
except that she was limited to unskilled work, and could only
occasionally climb ropes, ladders, scaffolds, ramps, and stairs,
and must avoid concentrated exposure to extreme cold and hazards.
(Id.)

The ALJ determined that plaintiff could not perform her past

relevant work, but that there were jobs existing in substantial
numbers that plaintiff could perform.

(Tr. 32).

Thus, the ALJ

concluded that plaintiff was not disabled as defined in the Act.
(Tr. 33).
IV.

Discussion

To be eligible for Social Security Disability Insurance
Benefits and Supplemental Security Income under the Social Security
Act (also “Act”), plaintiff must prove that she is disabled.
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

Social

Security

Act

defines

disability

as

the

“inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which

-19-

can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). An individual
will

be

declared

disabled

“only

if

[her]

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), 1382c(a)(3)(B).
To

determine

whether

a

claimant

is

disabled,

Commissioner engages in a five-step evaluation process.

the

See 20

C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-42
(1987).

The Commissioner begins by deciding whether the claimant

is engaged in substantial gainful activity.
working, disability benefits are denied.
decides

whether

the

claimant

has

a

If the claimant is

Next, the Commissioner
“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, he
is conclusively disabled.

At the fourth step, the Commissioner

establishes whether the claimant can perform her past relevant
work.

If

so,

the

claimant

is
-20-

not

disabled.

Finally,

the

Commissioner evaluates various factors to determine whether the
claimant is capable of performing any other work in the economy.
If not, the claimant is declared disabled and becomes entitled to
disability benefits.
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.

This “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).

“Substantial evidence on the record as a

whole . . . requires a more scrutinizing analysis.”
quotation marks and citations omitted).

Id. (internal

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).
“[I]f there is substantial evidence on the record as a
whole, we must affirm the administrative decision, even if the
record could also have supported 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.
-21-

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).
In the case at bar, plaintiff claims that the ALJ’s
decision is not supported by substantial evidence.

In support,

plaintiff claims that the ALJ failed to properly evaluate her
“chronic fatigue syndrome” and erroneously determined that her
mental impairments were nonsevere.

Plaintiff also argues that the

ALJ’s residual functional capacity determination fails to reflect
the limitations imposed by her impairments, and that the ALJ
erroneously assessed her credibility; failed to properly analyze
her obesity; and failed to properly credit Mr. Oliver’s opinion.
Plaintiff’s arguments will be addressed in turn.
A.

Chronic Fatigue Syndrome
Plaintiff argues that the ALJ’s decision is not supported

by substantial evidence on the record as a whole because he failed
to determine that her “CFS” (chronic fatigue syndrome) was a severe
impairment.

Review of the record reveals no error.

Plaintiff neither alleged chronic fatigue syndrome in her
applications

nor

presented

it

as

a

basis

for

disability during her administrative hearing.

a

finding

of

“An ALJ is not

obliged ‘to investigate a claim not presented at the time of the
application for benefits and not offered at the hearing as a basis
-22-

for disability.’”

Gregg v. Barnhart, 354 F.3d 710, 713 (8th Cir.

2003) (quoting Pena v. Chater, 76 F.3d 906, 909 (8th Cir. 1996)).
Furthermore, none of plaintiff’s doctors diagnosed her
with chronic fatigue syndrome, and there is no evidence to support
plaintiff’s conclusion that she is actually afflicted with that
condition.

As plaintiff notes in her brief in support of her

complaint,

chronic

fatigue

syndrome

“is

a

systemic

disorder

consisting of a complex of symptoms that may vary in incidence
duration, and severity” and which is “characterized in part by
prolonged fatigue that lasts 6 months or more and that results in
substantial

reduction

in

previous

levels

of

occupational,

educational, social, or personal activities” and is diagnosed “only
after

alternative

medical

and

psychiatric

causes

of

chronic

fatiguing illness have been excluded.”

(Docket No. 13 at pages 5-

6).

did

While

Drs.

Evans

and

Jackson

note

that

plaintiff

complained on occasion of fatigue and chronic fatigue, neither
doctor

used

the

term

“chronic

fatigue

syndrome,”

diagnosed

plaintiff with chronic fatigue syndrome, nor indicated that chronic
fatigue syndrome should be considered or ruled out as a potential
diagnosis.
The fact that Drs. Evans and Jackson used the words
“chronic” and/or “fatigue” when describing plaintiff’s complaints
does not equate to an actual diagnosis of the condition of chronic
fatigue syndrome.

Nor does the fact that plaintiff was diagnosed

with fibromyalgia, which plaintiff notes has symptoms similar to
-23-

chronic fatigue syndrome, equate to a diagnosis of chronic fatigue
syndrome, as plaintiff suggests.

Had the ALJ determined that,

based upon plaintiff’s presentation and symptoms that she had
chronic fatigue syndrome even though none of her doctors diagnosed
her with that condition, the ALJ would arguably have committed
reversible error.

See Pratt v. Sullivan, 956 F.2d 830, 834 (8th

Cir. 1992) (An ALJ’s substitution of his own conclusions for the
diagnosis of an examining physician constitutes reversible error).

B.

Mental Impairments
The

ALJ

in

this

case

determined

that

plaintiff’s

medically determinable impairments of depression and anxiety were
nonsevere.

Plaintiff argues that this finding was erroneous.

Review of the record reveals no error.
In determining whether a claimant’s mental impairments
are “severe,” the Commissioner’s regulations require the ALJ to
consider “four broad functional areas in which [the ALJ] will rate
the degree of [the claimant’s] functional limitation: Activities of
daily living; social functioning; concentration, persistence or
pace;

and

episodes

of

decompensation.”

404.1520a(c)(3), 416.920a(c)(3).

20

C.F.R.

§§

The regulations further provide:

If we rate the degree of your limitation in the first
three functional areas as “none” or “mild” and “none” in
the fourth area, we will generally conclude that your
impairments(s) is not severe, unless the evidence
otherwise indicates that there is more than a minimal
limitation in your ability to do basic work activities.
-24-

Id. §§ 404.1520a(d)(1), 416.920a(d)(1).
In his decision, the ALJ determined that plaintiff’s
“medically

determinable

mental

impairments

of

depression

and

anxiety, considered singly and in combination, do not cause more
than minimal limitation in [plaintiff’s] ability to perform basic
mental work activities and are therefore nonsevere.”

(Tr. 27).

The ALJ wrote that he had considered the four broad functional
areas set forth in the regulations for evaluating mental disorders,
and then set forth specific findings regarding each individual
functional area.

The ALJ then wrote that because plaintiff’s

“medically determinable mental impairments cause no more than
“mild” limitation in any of the first three functional areas and
“no”

episodes

of

decompensation

which

have

been

duration in the fourth area, they are nonsevere.”

of

extended

(Id.)

The ALJ’s analysis of plaintiff’s mental impairments was
consistent

with

the

regulations,

and

his

conclusion

that

plaintiff’s mental impairments were nonsevere is supported by
substantial

evidence

on

the

record

as

a

whole.

Dr.

Evans,

plaintiff’s family physician, repeatedly noted that plaintiff was
not especially anxious, that her mood and affect were normal, and
that she did not have a depressed mood.

Consistent with this

evidence, when plaintiff presented for evaluation at Mark Twain
Behavioral Health, she reported that she was there because she was
“trying

to

get

Medicaid

and

Disability

rheumatoid arthritis and fibromyalgia.”
-25-

due

to

(Tr. 379).

problems

with

Plaintiff did

not describe mental health symptoms that caused any limitations on
her

ability

to

function,

and

instead

stated

only

that

she

experienced “some anxiety in social settings” for which she took
Xanax.

While plaintiff testified that she had problems with her

memory, she did not complain of such problems when she sought
medical treatment, nor did any of her medical treatment providers
note problems with her memory. In addition, while not dispositive,
it

is

somewhat

notable

that

Mr.

Oliver,

upon

whose

opinion

plaintiff relies, determined that plaintiff’s recent and remote
memory was intact.

None of plaintiff’s physicians indicated that

she had any functional restrictions due to mental impairments.
While plaintiff does have anxiety and depression for which she
takes medication, she testified that her medication helps her. See
Patrick v. Barnhart, 323 F.3d 592, 596 (8th Cir. 2003) (if an
impairment can be controlled by treatment or medication, it cannot
be considered disabling).

The ALJ also noted evidence indicating

a strong situational component to plaintiff’s mental disturbances;
namely,

the

removal

of

her

depression is not disabling.
1039-40 (8th Cir. 2001).
mental

impairments

son

from

her

home.

Situational

See Dunahoo v. Apfel, 241 F.3d 1033,

In support of her argument that her

caused

serious

functional

restrictions,

plaintiff cites her hearing testimony. However, as discussed,
infra,

the

ALJ

properly

discounted

plaintiff’s

credibility

regarding her claims of severe impairments.
The

administrative

record
-26-

does

not

contain

evidence

supporting

the

conclusion

that

plaintiff’s

mental

impairments

caused the functional loss necessary for a determination that her
mental impairments were severe.

See Buckner v. Astrue, 646 F.3d

549, 557 (8th Cir. 2011) (citing Trenary v. Bowen, 898 F.2d 1361,
1364 (8th Cir. 1990) (the mere presence of a mental disturbance is
not disabling per se, absent a showing of severe functional loss
establishing

an

inability

activity).

The

ALJ’s

to

engage

determination

in

substantial

that

plaintiff’s

gainful
mental

impairments were nonsevere is supported by substantial evidence on
the record as a whole.

C.

Credibility Determination
The ALJ in this case examined the record and concluded

that plaintiff’s subjective allegations of pain and other symptoms
precluding all work were not entirely credible.
that

the

ALJ

erred

by

not

giving

her

Plaintiff argues

testimony

substantial

credibility, stating that the ALJ simply issued a conclusory
statement and failed to give specific reasons for his conclusion.
Review of the record reveals no error.
Before determining the claimant’s residual functional
capacity, the ALJ must evaluate the credibility of her subjective
complaints.

Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007)

(citing Pearsall, 274 F.3d at 1217.)

Testimony regarding pain is

necessarily subjective in nature, as it is the claimant’s own
perception of the effects of her alleged physical impairment.
-27-

Halpin v. Shalala, 999 F.2d 342, 346 (8th Cir.

1993).

Because of

the subjective nature of physical symptoms, and the absence of any
reliable technique for their measurement, it is difficult to prove,
disprove

or

quantify

Polaski at 1321-22.
difficulty

and

their

existence

and/or

overall

effect.

In Polaski, the Eighth Circuit addressed this

established

the

following

standard

for

the

evaluation of subjective complaints:
The absence of an objective medical basis
which supports the degree of severity of
subjective complaints alleged is just one
factor to be considered in evaluating the
credibility of the testimony and complaints.
The adjudicator must give full consideration
to all of the evidence presented relating to
subjective
complaints,
including
the
claimant’s prior work record, and observations
by third parties and treating and examining
physicians relating to such matters as: (1)
the claimant’s daily activities; (2) the
duration, frequency and intensity of the pain;
(3) precipitating and aggravating factors; (4)
dosage, effectiveness and side effects of
medication; (5) functional restrictions.
Id. at 1322.
Although the ALJ is not free to accept or reject the
claimant’s subjective complaints based upon personal observations
alone, he may discount such complaints if there are inconsistencies
in the evidence as a whole.

Id.

The “crucial question” is not

whether the claimant experiences symptoms, but whether her credible
subjective complaints prevent her from working. Gregg, 354 F.3d at
713-14.

When an ALJ explicitly considers the Polaski factors and

discredits a claimant’s complaints for a good reason, that decision
-28-

should be upheld.
2001).

Hogan v. Apfel, 239 F.3d 958, 962 (8th Cir.

The credibility of a claimant’s subjective testimony is

primarily for the ALJ, not the courts, to decide, and the court
considers with deference the ALJ’s decision on the subject. Tellez
v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005).
In assessing plaintiff’s credibility, the ALJ in this
case

wrote

that

he

had

considered

plaintiff’s

subjective

allegations in accordance with 20 C.F.R. §§ 404.1529 and 416.929,
and Social Security Rulings 96-4p and 96-7p, which correspond with
the Polaski decision and credibility determination.

The ALJ then

analyzed the evidence of record and noted several inconsistencies
in the record detracting from plaintiff’s credibility.
The ALJ in this case conducted an exhaustive analysis of
all of the medical evidence of record, and determined, as one
factor

detracting

from

plaintiff’s

credibility,

that

her

allegations of pain and other symptoms precluding all work were not
supported by the medical evidence.

While an ALJ may not discount

a claimant’s subjective complaints based solely upon a lack of
supporting medical evidence, the lack of such evidence is one
factor an ALJ may consider in analyzing a claimant’s credibility.
See Forte v. Barnhart, 377 F.3d 892, 895 (8th Cir. 2004) (holding
that lack of objective medical evidence is a factor an ALJ may
consider). The ALJ discussed plaintiff’s medical treatment, noting
her diagnoses and her complaints of chronic pain.

The ALJ also

noted that examinations routinely revealed full range of motion,
-29-

and full muscle strength and muscle tone.

The ALJ also noted

plaintiff’s mental health treatment with Dr. Evans, and Dr. Evans’s
observations that plaintiff did not appear anxious and had a normal
mood and affect with no depressed mood.

The ALJ noted that, when

plaintiff presented to the Hannibal clinic in April of 2009, she
requested a higher dosage of Cymbalta but stated that she was doing
okay mood-wise.

After analyzing all of the medical evidence of

record, the ALJ concluded that plaintiff’s impairments could be
expected to cause the symptoms she alleged, but that her statements
regarding the intensity, persistence, and limiting effects of those
symptoms were not entirely credible.

While the lack of objective

medical evidence is not dispositive, it is an important factor, and
the ALJ was entitled to consider the fact that the objective
medical evidence did not support the degree of alleged limitations.
20 C.F.R. §§ 404.1529(c)(2), 416.929(c)(2); Kisling v. Chater, 105
F.3d 1255, 1257-58 (8th Cir. 1997); Cruse v. Bowen, 867 F.2d 1183,
1186 (8th Cir. 1989) (the lack of objective medical evidence to
support the degree of severity of alleged pain is a factor to be
considered); Johnson v. Chater, 87 F.3d 1015, 1017-18 (8th Cir.
1996) (it is proper for an ALJ to consider the lack of reliable
medical opinions to support a claimant’s allegations of a totally
disabling condition; in fact, this was noted to be the “strongest
support” in the record for the ALJ’s determination).
The ALJ also noted that plaintiff’s medications and other
treatment

modalities

were

effective.
-30-

This

observation

is

consistent with the record and with plaintiff’s hearing testimony.
The ALJ noted that plaintiff’s medications and the median branch
blocks performed by Dr. Glanton were noted to help her symptoms,
and that Lasix was effective in controlling her edema.

Indeed,

there are numerous references in the record to the effectiveness of
the medications plaintiff took for her physical and psychological
symptoms.

Consistently, plaintiff testified that the medications

she took for her physical and mental impairments helped her and
caused no side effects.

When an impairment is controlled by

medication

it

or

treatment,

cannot

be

considered

disabling.

Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007).
In

support

of

her

argument

regarding

the

ALJ’s

credibility assessment, plaintiff reiterates many of her statements
regarding the severity and limiting effects of her impairments.
For example, plaintiff states that, due to her conditions, she must
do everything while seated in a computer-type chair with wheels,
and must use a hand-held grabber to pick up objects.

Plaintiff

states that her husband must comb her hair; she must lie in a dark
room; she naps frequently during the day; she uses an electric
wheel chair at the store; she has severe restrictions on her
ability to walk, stand, and use pedals on her car; and sitting is
very painful for her.

The undersigned also notes plaintiff’s

hearing testimony that she can walk only for a few minutes; that
she had to sit for hours with her feet propped up; that she had
crying spells every other day that lasted for two to three hours;
-31-

that she had panic attacks three times per month that lasted three
to four hours; that she had migraine headaches that occurred twice
per week and lasted for three hours each; and that depression
caused her to not get dressed four days per week and to spend all
day in bed four times per month.

When plaintiff saw her various

medical treatment providers, she did not describe symptoms and/or
limitations of such an extreme degree.

Furthermore, the medical

records contain no indication that diagnostic testing, psychiatric
evaluation, or any other type of evaluation was recommended, as
would reasonably be expected had plaintiff described symptoms and
limitations of such an alarming nature.
950

F.2d

545

(8th

Cir.

reported

claimant’s

542,

pain

was

1991)
not

See Russell v. Sullivan,
(upholding

credible

finding

where

that

claimant’s

statements to medical professionals were inconsistent).
Nor did any of plaintiff’s doctors suggest to her that
she restrict her activities to the extent plaintiff testified she
did.

Instead, plaintiff’s doctors encouraged her to be more

physically active, including observing a regular exercise regimen
that included exercising on a treadmill.
statements

that

she

had

to

take

Regarding plaintiff’s

frequent

daytime

naps,

when

plaintiff complained of fatigue and trouble sleeping and was
referred for a sleep study, she was told following the sleep study
to avoid napping during the day.
chronic fatigue syndrome.

She has never been diagnosed with

In addition, while plaintiff testified

that she had to sit with her feet elevated because of edema in her
-32-

lower

extremities,

Dr.

Evans

noted

that

Lasix

controlled

plaintiff’s lower extremity edema, and in 2010 Dr. Jackson noted
that plaintiff had no edema.

The evidence of record suggests that

plaintiff’s functional limitations are due more to her own choice
See Blakeman v.

than to any medical or psychological condition.

Astrue, 509 F.3d 878, 882 (8th Cir. 2007) (“The issue is not
whether [the claimant] was credible in testifying that he naps each
weekday afternoon he is not working. The issue is whether his heart
condition compels him to nap each afternoon”).
The

ALJ

also

noted

that

plaintiff’s

subjective

allegations of disabling physical and mental symptoms were out of
proportion with her activities of daily living.

The ALJ noted

plaintiff’s statements that she got her daughter up each morning,
fed her breakfast, and sent her to school; picked up around the
house during the day; had family time, dinner, and baths before
bedtime; was independent in her self-care; had regular contact with
family and friends in her own home and in theirs; and participated
in a pageant organization.

While daily living patterns are not

alone dispositive of a claimant’s credibility, an ALJ is entitled
to

consider

determination.
(it

is

them

as

as

factor

relevant

to

credibility

Casey v. Astrue, 503 F.3d 687, 696 (8th Cir. 2007)

well-settled

activities

one

one

that

an

ALJ

may

properly

factor

in

evaluating

the

consider

credibility

daily
of

a

claimant’s subjective complaints).
A review of the ALJ’s credibility determination shows
-33-

that he evaluated plaintiff’s credibility in a manner consistent
with the requirements of Polaski v. Heckler.
plaintiff

suggests,

plaintiff’s
medical

simply

allegations

evidence.

issue

were

Instead,

a

conclusory

inconsistent
the

The ALJ did not, as

ALJ

with

statement
the

considered

that

objective

plaintiff’s

allegations on the basis of the record before him, and set forth
numerous inconsistencies that, considered on the record as a whole,
detracted from plaintiff’s credibility.

An ALJ may disbelieve

subjective complaints where there are inconsistencies on the record
as a whole.
1990).
all.

Battles v. Sullivan, 902 F.2d 657, 660 (8th Cir.

The ALJ did not conclude that plaintiff had no symptoms at
He determined that plaintiff’s statements that her symptoms

precluded all work activity were not entirely consistent with the
evidence on the record as a whole.

“While pain may be disabling if

it precludes a claimant from engaging in any form of substantial
gainful activity, the mere fact that working may cause pain or
discomfort does not mandate a finding of disability.”

Perkins v.

Astrue, 648 F.3d 892, 900 (8th Cir. 2011) (quoting Jones v. Chater,
86 F.3d 823, 826 (8th Cir. 1996)); see also Gregg, 354 F.3d at 71314 (the “crucial question” is not whether the claimant experiences
symptoms, but whether her credible subjective complaints prevent
her from working).

Because the ALJ considered the Polaski factors

and gave good reasons for discrediting plaintiff’s subjective
complaints, his credibility determination should be upheld. Hogan,
239 F.3d at 962.
-34-

D.

RFC Determination
The ALJ determined that plaintiff retained the residual

functional

capacity

to

perform

sedentary

work

with

some

restrictions, as explained, supra. Plaintiff argues that the ALJ’s
RFC determination fails to reflect all of her limitations; that the
ALJ failed to consider the impact of her obesity on her ability to
work; and that the ALJ improperly discredited Mr. Oliver’s opinion.
Review of the record reveals no error.
Residual functional capacity is defined as that which a
person remains able to do despite her limitations.

20 C.F.R. §§

404.1545(a), 416.945(a); Lauer v. Apfel, 245 F.3d 700, 703 (8th
Cir. 2001).
relevant,

The ALJ must assess a claimant’s RFC based upon all

credible

evidence

in

the

record,

including

medical

records, the observations of treating physicians and others, and
the claimant’s own description of her symptoms and limitations. 20
C.F.R. §§ 404.1545(a), 416.945(a); Anderson v. Shalala, 51 F.3d
777, 779 (8th Cir. 1995); Goff v. Barnhart, 421 F.3d 785, 793 (8th
Cir. 2005).
A claimant’s RFC is a medical question, and there must be
some medical evidence, along with other relevant, credible evidence
in the record, to support the ALJ’s RFC determination.

Hutsell v.

Massanari, 259 F.3d 707, 711-12 (8th Cir. 2001); Lauer, 245 F.3d at
703-04; McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000).
However, although an ALJ must determine the claimant’s RFC based
upon all relevant evidence, the ALJ is not required to produce
-35-

evidence and affirmatively prove that a claimant can lift a certain
weight or walk a certain distance, Pearsall, 274 F.3d at 1217 (8th
Cir. 2001); McKinney, 228 F.3d at 863, nor is the ALJ required to
mechanically list and reject every possible limitation.

McCoy v.

Astrue, 648 F.3d 605, 615 (8th Cir. 2011). The claimant bears the
burden of establishing her RFC.

Goff, 421 F.3d at 790.

Plaintiff contends that the ALJ failed to consider the
impact of plaintiff’s obesity on her ability to work.

Review of

the ALJ’s decision reveals no error.
When

an

ALJ

identifies

obesity

as

a

medically

determinable impairment, SSR 02-1p requires him to “consider any
functional

limitations resulting from the obesity in the RFC

assessment, in addition to any limitations resulting from any other
physical or mental impairments.”

SSR 02-1p at * 7.

In this case,

even though plaintiff did not allege obesity as a basis for
disability, the ALJ asked plaintiff about her weight during the
administrative hearing, and asked her what limitations it caused.
In his decision, the ALJ acknowledged that plaintiff’s physicians
had included obesity as one of plaintiff’s diagnoses.

The ALJ

determined that obesity was a severe impairment, wrote that he had
considered obesity in accordance with Social Security Ruling 02-1p,
and wrote that he had determined that obesity limited plaintiff’s
ability to engage in work activity.

The ALJ then described

plaintiff’s RFC as restricted to sedentary work with limitations in
each postural category.

The ALJ’s specific findings regarding
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obesity are more than adequate to show that the ALJ properly
considered functional restrictions resulting from obesity in his
RFC assessment.

In addition, the ALJ restricted plaintiff to

sedentary work with limitations in each postural category.
represents serious functional restrictions, and

This

supports the

conclusion that the ALJ properly considered all of plaintiff’s
impairments and resulting functional restrictions.

See Ellis v.

Barnhart, 392 F.3d 988, 994 (8th Cir. 2005) (The ALJ’s finding that
plaintiff was limited to sedentary work is itself a significant
limitation).

While the ALJ did not present his RFC findings in

bullet-point format with each limitation followed by a discussion
of the supporting evidence, such a rigid format is not required by
the Commissioner’s regulations or by the Eighth Circuit.
Plaintiff argues that because of her “extreme obesity,
chronic low back pain, and osteoarthritis of weight-bearing joints”
she would “obviously be more limited than suggested by the ALJ’s
RFC finding.”

(Docket No. 13 at page 14).

Plaintiff notes that

she needed to lie down every day, necessitating unscheduled breaks
which would be intolerable to any employer.

However, the record

fails to support that plaintiff’s need to lie down every day was
due

to

her

impairments.

While

plaintiff

was

diagnosed

with

obesity, none of her doctors indicated that her weight imposed any
functional restrictions or necessitated lying down every day.

To

the contrary, plaintiff’s doctors encouraged her to engage in more
physical activity, including regular exercise on a treadmill, and
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plaintiff was told following her sleep study that she should not
nap during the day.

As discussed above, the fact that plaintiff

lays down every day appears to be due more to her own choice than
to any functional limitation caused by her impairments.

The ALJ in

this case conducted an exhaustive review of the evidence of record,
and incorporated into his RFC determination those restrictions he
determined

were

credible

following

his

legally

sufficient

determination of plaintiff’s credibility. See McGeorge v. Barnart,
321 F.3d 766, 769 (8th Cir. 2003) (“The ALJ properly limited his
RFC determination to only the impairments and limitations he found
to be credible based on his evaluation of the entire record”).
Plaintiff

next

contends

that

the

ALJ

dismissed Mr. Oliver’s psychological opinion.
suggests

that

evaluation.

the

ALJ

should

have

ordered

erroneously

Plaintiff also
a

psychological

Review of the record reveals no error.

The ALJ in this case discussed Mr. Oliver’s opinion, and
wrote that he was giving it no weight.

As the Commissioner

correctly argues, there is no reason the ALJ should have treated
Mr. Oliver’s opinion any differently. First, there was no treating
relationship between plaintiff and Mr. Oliver.

Plaintiff saw Mr.

Oliver on only one occasion, stating that she was there for an
evaluation because she was trying to qualify for Medicaid and
Disability benefits due to rheumatoid arthritis and fibromyalgia.
While the opinion of a treating physician is generally entitled to
great weight, the opinion of a consultant who has examined the
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claimant only once is not entitled to the same consideration.

See

Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007) (the opinion of
a consultant deserves no special weight).
Second, as the ALJ recognized, Mr. Oliver was a licensed
clinical social worker and was therefore not an “acceptable medical
source” as such is defined in the Regulations.
404.1513(a), 416.913(a).

20 C.F.R. §§

The Regulations provide that evidence to

establish disability 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), 416.913(a)(1)-(5).

As a licensed

clinical social worker, Mr. Oliver would be considered by the
regulations as an “other source” whose opinion may be used to show
the severity of an impairment and how it affects a claimant’s
ability to work.

20 C.F.R. §§ 404.1513(d), 416.913(d).

Third, as the Commissioner notes, Mr. Oliver overstepped
his expertise as a social worker when he offered opinions regarding
the

interplay

between

physical impairments.

plaintiff’s

mental

impairments

and

her

This is especially so considering the fact

that Mr. Oliver did not indicate that he reviewed any medical
records before formulating such opinions.
However, the undersigned does note that Mr. Oliver’s
report indicates that it was read and approved by Andrew Lovy, D.O.
Dr. Lovy would be an “acceptable medical source” as defined in the
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regulations.

Even so, the ALJ’s treatment of Mr. Oliver’s opinion

is supported by substantial evidence on the record as a whole.
As the ALJ noted, the opinions expressed in Mr. Oliver’s
opinion appeared to be based solely upon Mr. Oliver’s interview
with plaintiff.

An ALJ is entitled to discount an opinion where it

is based largely on a claimant’s subjective complaints rather than
Renstrom v. Astrue, 680 F.3d 1057,

on objective medical evidence.
1064 (8th Cir. 2012).
discussion

regarding

As fully set forth in the
the

ALJ’s

credibility

foregoing

determination,

plaintiff’s statements regarding her limitations are not entirely
credible, and the ALJ was entitled to disregard an opinion that
appeared to based solely upon those statements.

Furthermore, an

ALJ may disregard the opinion of a treating physician when it is
unsupported by medically acceptable clinical or diagnostic data
and/or inconsistent with the other substantial evidence of record.
Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005).
In

addition,

Mr.

Oliver’s

opinion

that

plaintiff’s

physical and mental health issues would preclude her from engaging
in full time competitive work is not the type of opinion, even when
it

comes

from

an

acceptable

medical

source,

to

which

the

Commissioner generally gives controlling weight. “A medical source
opinion that an applicant is ‘disabled’ or ‘unable to work’ ...
involves an issue reserved for the Commissioner and therefore is
not the type of ‘medical opinion’ to which the Commissioner gives
controlling weight.” Ellis, 392 F.3d at 994 (citing Stormo v.
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Barnhart, 377 F.3d 801, 807 (8th Cir. 2004)).
Mr. Oliver’s opinion also conflicts with the opinion of
Dr. Stacy that plaintiff’s difficulties were mild.

In fact, Mr.

Oliver’s opinion finds no support in any of the other medical
evidence of record.

An ALJ may properly reject the opinion of even

a treating physician if it is inconsistent with other substantial
evidence of record.

Reed, 399 F.3d at 920.

Plaintiff also contends that the ALJ should have ordered
a consultative psychological examination.

It is well-settled that

the ALJ is required to ensure a fully and fairly developed record.
Nevland v. Apfel, 204 F.3d 853 (8th Cir. 2000) (citing Warner v.
Heckler, 722 F.2d 428, 431 (8th Cir. 1983)).

An ALJ is required to

order a consultative examination when the evidence as a whole is
insufficient to support a decision on a claim.

See 20 C.F.R. §§

404.1519a(b); 416.919a(b). An ALJ is permitted to issue a decision
without obtaining additional medical evidence so long as other
evidence in the record provides a sufficient basis for the ALJ’s
decision.

Anderson, 51 F.3d at 779.

In this case, there is no

indication that the ALJ felt unable to make the assessment he did
and, as discussed above, substantial evidence supports the ALJ’s
decision.

Plaintiff also fails to acknowledge that the ALJ’s RFC

determination was influenced by his determination that plaintiff’s
allegations were not fully credible and, for the reasons discussed
above, this Court defers to that determination.
F.3d at 962; Tellez, 403 F.3d at 957.
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See Hogan, 239

Plaintiff also suggests that there are medical records
that support the conclusion that she is disabled. As required, the
undersigned has considered the evidence which “fairly detracts from
the ALJ’s findings.” Groeper v. Sullivan, 932 F.2d 1234, 1237 (8th
Cir. 1991); see also Briggs v. Callahan, 139 F.3d 606, 608 (8th
Cir. 1998). However, where, as here, substantial evidence supports
the ALJ’s decision, that decision may not be reversed merely
because substantial evidence may support a different outcome.
Briggs, 139 F.3d at 608; Browning v. Sullivan, 958 F.2d 817, 821
(8th Cir. 1992), citing Cruse, 867 F.2d at 1184.
Review of the ALJ’s RFC determination reveals that he
properly exercised his discretion and acted within his statutory
authority in evaluating the evidence of record as a whole.

The ALJ

conducted a legally sufficient credibility determination, properly
considered all of the evidence of record, properly considered
obesity and the restrictions imposed thereby, properly weighed the
opinion evidence, and fulfilled his duty to ensure a fully and
fairly developed record.

Having reviewed the ALJ’s decision with

the requisite deference, the undersigned concludes that it is
supported by substantial evidence on the record as a whole.
Therefore, on the claims that plaintiff raises,
IT

IS

HEREBY

ORDERED

that

the

decision

of

the

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

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_______________________________
Frederick R. Buckles
UNITED STATES MAGISTRATE JUDGE
Dated this 28th day of September, 2012.

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