Burts v. Astrue
MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that the final decision of the Commissioner is affirmed, and plaintiffs Complaint is dismissed with prejudice.A separate Judgment in accordance with this Memorandum and Order is entered this same date.. Signed by Magistrate Judge Abbie Crites-Leoni on 9/19/14. (MRS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
JACQUELINE L. BURTS,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,1
No. 2:12CV93 ACL
MEMORANDUM AND ORDER
This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial
review of the Commissioner’s final decision denying Jacqueline L. Burts’
applications for disability insurance benefits (DIB) and child disability benefits
(CDB) under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq., and
application for supplemental security income (SSI) under Title XVI of the Act, 42
U.S.C. §§ 1381, et seq. All matters are pending before the undersigned United
States Magistrate Judge, with consent of the parties, pursuant to 28 U.S.C. §
636(c). Because the Commissioner’s final decision is supported by substantial
evidence on the record as a whole, it is affirmed.
Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
As such, she is substituted for Michael J. Astrue as the defendant in this cause of action. Fed. R.
Civ. P. 25(d).
I. Procedural History
On September 20, 2010, plaintiff Jacqueline L. Burts applied for disability
insurance benefits (DIB), child disability benefits (CDB) and supplemental
security income (SSI), claiming she became disabled on June 26, 2009, because of
reflex sympathetic dystrophy (RSD), chronic pain syndrome, arthritis in the right
ankle, and poor circulation in the right leg. (Tr. 121-38, 166.) Upon initial
consideration, the Social Security Administration denied plaintiff’s claims for
benefits. (Tr. 44-46, 57-71.) At plaintiff’s request, a hearing was held before an
Administrative Law Judge (ALJ) on August 22, 2011, at which plaintiff, a medical
expert, and a vocational expert testified. (Tr. 22-43.) On October 27, 2011, the
ALJ issued a decision (Tr. 9-18) denying plaintiff’s claims for benefits. The ALJ
“conclud[ed] that, considering the claimant’s age, education, work experience, and
residual functional capacity plaintiff is capable of making a successful adjustment
to other work that exists in significant numbers in the national economy.” (Tr. 17.)
On October 23, 2012, upon review of additional evidence, the Appeals Council
denied plaintiff’s request to review the ALJ’s decision. (Tr. 1-5.) The ALJ’s
decision is thus the final decision of the Commissioner. 42 U.S.C. § 405(g).
In the instant action for judicial review, plaintiff claims that the ALJ erred in
his decision by failing to consider Social Security Ruling (SSR) 03-2p, which
governs the evaluation of disability in cases involving RSD, and that his failure to
consider SSR 03-2p affected his determination of plaintiff’s credibility. Plaintiff
also claims that the ALJ failed to adequately explain his application of the factors
required to be considered in determining credibility and improperly relied on
plaintiff’s failure to take prescribed pain medication in his determination. Finally,
plaintiff contends that the Appeals Council erred when it failed to consider new
and material evidence submitted for review of the ALJ’s decision. Plaintiff
requests that the final decision be reversed and that she be awarded benefits or that
the matter be remanded for further consideration.
II. Testimonial Evidence Before the ALJ
At the hearing on August 22, 2011, plaintiff testified in response to
questions posed by the ALJ and counsel.
At the time of the hearing, plaintiff was twenty-three years of age. Plaintiff
is single. Plaintiff graduated from high school. Plaintiff lives with her boyfriend’s
grandparents in the upstairs portion of their house. (Tr. 26, 33.)
Plaintiff’s Work History Report shows that plaintiff worked in fast food
restaurants from September 2003 to August 2005. From August 2005 to October
2008, plaintiff worked as a certified nurses’ assistant (CNA) in skilled nursing or
residential care facilities. From November 2008 to February 2009, plaintiff
worked as a mounter in a factory. From February to June 2009, plaintiff again
worked as a CNA in a residential care facility. (Tr. 146.)
Plaintiff testified that she underwent surgery in November 2009 for a bruised
ankle joint, as well as ligament and tendon repair. She reported that after surgery
the pain became worse. Plaintiff testified that she currently has constant pain
radiating through her right leg and into her foot, which her doctors have advised
was caused by nerve damage. (Tr. 26-27, 29.) Plaintiff testified that her pain has
worsened within the previous year. (Tr. 28.)
Plaintiff testified that her foot is sometimes cold and discolored and that she
has veins that “pop out” of her leg. Plaintiff testified that she also sometimes has
blisters on her toes that are tender and sore. Plaintiff testified that she experiences
pain when her foot is touched and that she cannot wear shoes. Plaintiff testified
that she can tolerate sandals. Plaintiff testified that sheets or blankets, certain
clothing, and walking worsen her pain, because of the rubbing against her leg. (Tr.
27-28.) Plaintiff testified that she does “okay” going up the stairs at home, but
that there are some days when she cannot walk, at which time she crawls or scoots
up and down the stairs or uses her crutches. (Tr. 34.)
Plaintiff testified that her doctors have told her that she has chronic pain
syndrome and that nothing more can be done for her pain. Plaintiff testified that
she was discharged from her doctor’s care, because of her financial inability to pay
for treatment. Plaintiff testified that she suggested to her doctors that they
amputate her leg, but they declined. (Tr. 27, 30.)
Plaintiff testified that she currently takes calcium, vitamin D, Lavora, and
Alprazolam as needed for sleep. Plaintiff testified that she was recently prescribed
Neurontin, but cannot fill the prescription. Plaintiff testified that she does not take
any narcotic medication. (Tr. 35-36.)
Plaintiff testified that the pain interferes with her sleep but that medication
helps her sleep. Plaintiff testified that she is most comfortable lying on her left
side in bed, or in a recliner with her leg elevated and propped on two body pillows.
Plaintiff testified that she elevates her leg every day. Plaintiff testified that she also
applies ice packs and heat compresses to relieve the pain. (Tr. 29-31.)
The pain sometimes causes plaintiff to cry. Her focus and concentration is
also affected, because sometimes her pain is so unbearable it’s all she can think
about. (Tr. 31.)
As to her daily activities, plaintiff testified that she goes grocery shopping
but uses a motorized scooter and usually has someone with her. (Tr. 31.) Plaintiff
testified that she can drive short distances. She testified that she either has
someone with her or uses cruise control on the car when she drives long distances.
She sometimes drives with her left foot. (Tr. 29-30.) Plaintiff prepares simple
meals and sits when she cuts fruits or vegetables. She has mowed the lawn with a
riding mower, but the vibration of the mower increases her pain. (Tr. 32-33.)
Approximately once a week, plaintiff sits for about an hour and picks up apples
from the ground at her boyfriend’s grandparent’s orchard. Plaintiff testified that
she manages her father’s finances because he cannot read or write. Plaintiff
testified that she sometimes takes her father to the grocery store when she visits
him. (Tr. 33-34.)
Testimony of Medical Expert
Dr. Albert Oguejiofor, a board-certified internist, testified at the hearing as a
medical expert in response to questions posed by the ALJ and counsel.
Dr. Oguejiofor testified that plaintiff’s diagnosed medically determinable
impairments were history of fall with right ankle sprain, right ankle pain, and RSD.
Dr. Oguejiofor testified that plaintiff did not need to elevate her right leg inasmuch
as there was no evidence of vascular or circulation problems. (Tr. 36-37.)
Testimony of Vocational Expert
Dr. Karen E. Nielsen, a vocational expert, testified at the hearing in response
to questions posed by the ALJ and counsel.
Dr. Nielsen characterized plaintiff’s past work as a fast food worker and
mounter as light and unskilled; and as a CNA as medium and semi-skilled. (Tr.
The ALJ asked Dr. Nielsen to assume an individual of plaintiff’s age and
education and who is able to perform the exertional demands of sedentary work in
that she can occasionally lift or carry ten pounds, can lift or carry five pounds, can
stand and walk about two hours of an eight-hour workday, and can sit about six
hours of an eight-hour workday. (Tr. 39-40.) The ALJ asked Dr. Nielsen to
further assume the individual can
occasionally climb ramps and stairs, never climb ladders, ropes, or
scaffolds; occasionally balance, occasionally stoop, occasionally
kneel, occasionally crouch, occasionally crawl.
The individual is to avoid working around unprotected heights, open
flames, and dangerous and moving machinery. And due to the
individual pain the individual can understand, remember, and carry
out short and simple instructions, and maintain attention and
concentration for extended periods on simple tasks.
(Tr. 40.) Dr. Nielsen testified that such a person could not perform any of
plaintiff’s past relevant work, but could perform other sedentary, unskilled jobs
such as order clerk, of which 2,500 such jobs exist in the State of Missouri and
185,000 nationally; fan assembler, of which 2,000 such jobs exist in the State of
Missouri and 185,000 nationally; and optical goods worker, of which 1,300 such
jobs exist in the State of Missouri and 135,000 nationally. Dr. Nielsen testified
that if such a person was required to elevate her right leg throughout the workday
at waist level, she could not perform such work or any other work. (Tr. 40-41.)
In response to counsel’s questions, Dr. Nielsen testified that a person who
missed four hours of work a week, or more than two days a month, would probably
not be able to maintain employment. (Tr. 41-42.)
III. Medical Records Before the ALJ
On June 29, 2009, plaintiff visited Dr. Eric Kondro and reported that she had
fallen on some steps and twisted her right ankle. Plaintiff was prescribed
medication, including Vicodin.2 (Tr. 191.)
Plaintiff visited the University of Missouri Health Care Orthopedic Clinic
(Orthopedic Clinic) on August 4, 2009, with complaints of continued foot pain.
Nurse Practitioner (NP) Parvin Behrouzi-Jareh noted plaintiff’s medical history to
include injuries to the right ankle beginning in 1997 with ligament repair
performed in 2000. Plaintiff reported that she reinjured her ankle in June 2009,
which caused severe pain and bruising about the plantar and dorsal portions of her
foot. Plaintiff reported that she had been told that she could return to work,
however, felt she would not make it, because her pain was too intense. Plaintiff
reported her current pain to be at a level seven out of ten, but that she sometimes
experiences pain at a level ten. Plaintiff reported taking Vicodin for her pain.
Physical examination showed no swelling or bruising of the right ankle.
Tenderness was noted. Plaintiff was hypersensitive to touch at the lateral side of
her foot dorsally and plantarly. Pulses were palpable and sensations were intact.
NP Behrouzi-Jareh noted that plaintiff tried to not put pressure on the lateral side
Vicodin is used to relieve moderate to severe pain. Medline Plus (last revised May 15, 2013)
of her foot when she walked. Plaintiff had decreased dorsi- and plantar flexion
about the right foot when compared with her left foot. Tenderness at the anterior
talofibular ligament (ATFL) area was noted, but NP Behrouzi-Jareh determined it
not to be significant. Strength about the right foot was noted to be 3-4/5. X-rays
of the right ankle showed some changes at the tibiotalar area for possible
osteochondral defect (OCD), but nothing significant. NP Behrouzi-Jareh
diagnosed plaintiff with right foot pain, right foot sprain, right ankle sprain, and
claw toes. An MRI was ordered. (Tr. 231-34.)
An MRI taken of the right ankle on August 4, 2010, showed medial talar
dome OCD with suspected unstable versus loose fragment. It was noted that no
ATFL was identified and that a calcific loose body was observed along its
expected course. (Tr. 227-28.)
Plaintiff visited Dr. Saul Generoso Trevino at the Orthopedic Clinic on
August 26, 2009. He noted plaintiff’s range of motion about the right ankle was
somewhat limited. Tenderness was noted over the lateral aspect of the foot, with
minimal tenderness noted about the medial aspect and no effusion. Dr. Trevino
noted plaintiff to have weak intrinsics of her foot. Dr. Trevino prescribed a
pneumatic CAM boot and instructed plaintiff to participate in a home program of
physical therapy with intrinsic exercises. A determination would be made in one
month as to whether surgery was necessary. (Tr. 224-26.)
Plaintiff returned to the Orthopedic Clinic on September 25, 2009, and
reported to NP Behrouzi-Jareh that her pain was currently at a level four or five
and that she continued to take Vicodin for pain. Trace edema was noted about the
lateral side of the ankle with pain about the anterior talus area as well as the lateral
and posterior sides. Plaintiff had good dorsiflexion and plantar flexion, except the
right side was not quite equal to the left. Pulses were palpable and sensations were
intact. NP Behrouzi-Jareh recommended that plaintiff continue with the CAM
boot and exercises since she had shown slight improvement. NP Behrouzi-Jareh
recommended that plaintiff take ibuprofen for pain control. Plaintiff was
instructed to return in three or four weeks to meet with Dr. Trevino. (Tr. 221-23.)
Plaintiff visited Dr. Kondro on October 16, 2009, who noted there to be a
bone bruise on the right foot and a chip on the right ankle. It was noted that
plaintiff had an upcoming orthopedic appointment with possible surgery. (Tr.
On October 28, 2009, plaintiff visited Dr. Trevino and complained of
continued pain. Dr. Trevino noted the MRI to show an OCD lesion with loose
fragment in the surface and a possible loose body over the lateral aspect of the
ankle. Tenderness was noted with motion and over the peroneal tendons. Surgical
options were discussed. (Tr. 219-20.)
On November 10, 2009, plaintiff reported to NP Behrouzi-Jareh that she was
- 10 -
experiencing severe pain and was not sleeping at night. NP Behrouzi-Jareh noted
plaintiff to be taking Darvocet.3 Physical examination showed plaintiff to continue
to have tenderness to palpation at the lateral side of her ankle and at the ATFL
area. Tenderness was noted all about the ankle. A small amount of swelling was
noted on the lateral side of the ankle. Dorsiflexion and plantar flexion were
present, but with pain. Severe pain was noted with eversion and inversion. Flexor
and extensor tendons were intact. Pulses were palpable and sensations were intact.
Plaintiff consented to surgery, and preoperative evaluation was scheduled. (Tr.
On November 16, 2009, plaintiff underwent right peroneal tendinoscopy
with debridement of pronator brevis tear, right ankle arthroscopy with debridement
of synovitis, and microfracture treatment of OCD to the anterior medial talus.
Plaintiff was placed in a short-leg splint and was discharged to home that same
date. (Tr. 211-14.) During follow up examination on November 24, Dr. Trevino
noted plaintiff to be doing well and her pain was controlled with pain medication.
Plaintiff was able to move her ankle without difficulty. Plaintiff was
neurovascularly intact. Plaintiff was instructed to follow up in two weeks. (Tr.
Darvocet is used to relieve mild to moderate pain. Medline Plus (last revised Mar. 16, 2011)
- 11 -
An x-ray taken of the right ankle on December 8, 2009, showed irregularity
to the talar dome that possibly represented a subtle nondisplaced fracture or OCD.
A possible subtle avulsion fracture; tendinous insertion anchors overlying the distal
fibular; as well as edema and swelling were noted. (Tr. 208.) Dr. Trevino
reviewed the x-ray and determined it to show no abnormalities except a small
lucency on the medial aspect of the talus. Dr. Trevino found plaintiff to be doing
well and instructed her to return in three weeks. (Tr. 206-07.)
On December 30, 2009, Dr. Trevino noted plaintiff to be doing well and to
have good range of motion about the ankle with minimal swelling. Plaintiff
reported having recently fallen and that she experienced some residual pain. Dr.
Trevino instructed plaintiff to start weight-bearing in the boot and to start TheraBand exercises. Plaintiff was also instructed to take Aleve (naproxen) as
necessary. (Tr. 203-04.) An x-ray taken that same date showed subcortical
lucency to the medial talor dome. (Tr. 205.)
Plaintiff visited NP Behrouzi-Jareh on January 22, 2010, and reported
feeling better, however, stated that she continued to have a lot of pain and was
currently experiencing numbness and tingling in her lower leg. Physical
examination showed pain and tenderness with palpation about the ankle with
prominent soft tissue swelling. NP Behrouzi-Jareh observed plaintiff’s foot was
purplish in color, especially when dangling down for a longer period of time, as
- 12 -
well as hypersensitivity to touch about the lateral side of the ankle and prominent
rashes on the toes bilaterally. Pulses were palpable and sensations were intact.
There was tightness about the Achilles tendon. NP Behrouzi-Jareh opined that
plaintiff exhibited signs of RSD. Because of the level of pain reported by the
plaintiff, NP Behrouzi-Jareh directed plaintiff to continue using the CAM boot and
instructed her to increase her range of motion exercises. Plaintiff was instructed to
take naproxen. NP Behrouzi-Jareh recommended physical therapy, but after
learning plaintiff was already having difficulty with a $20,000 hospital bill, printed
some exercises that plaintiff could do at home. (Tr. 200-02.)
On February 11, 2010, Dr. Kondro noted plaintiff’s distal foot was cool and
her right ankle had good range of motion. He diagnosed plaintiff with postsurgical RSD on the right and Raynaud’s4 and prescribed Amlodipine.5 (Tr. 190.)
Plaintiff returned to Dr. Trevino on March 3, 2010, who concluded plaintiff
developed RSD-type symptoms, including coolness in the feet, blisters on the toes,
discomfort in the lower leg, and hypersensitivity. Plaintiff stated she could
ambulate relatively freely while wearing the CAM boot, but not so well without it.
Dr. Trevino noted plaintiff’s attempt with physical therapy failed due to lack of
Raynaud’s disease is a condition that causes some areas of the body (i.e., fingers, toes, the tip
of the nose and ears) to feel numb and cool in response to cold temperatures or stress. It causes
smaller arteries that supply blood to the skin to narrow, limiting blood circulation to affected
areas. Mayo Clinic (Oct. 20, 2011)
Amlodipine is used to relax the blood vessels. Medline Plus (last revised Aug. 15, 2013)
- 13 -
insurance. Physical examination showed coolness in both feet with some bluish
discoloration of the second toe, bilaterally. Hypersensitivity was noted over the
incision, and range of motion was limited. No real pain was noted with inversion
or eversion. Plaintiff could dorsiflex to about five degrees and plantar flex to about
thirty-five to forty degrees. Dr. Trevino referred plaintiff to the pain clinic. (Tr.
Plaintiff visited Dr. Trevino on April 14, 2010, and reported that she was
limited to walking two to three blocks. Examination showed plaintiff to have onequarter inch atrophy of the right calf. Good range of motion was noted. Plaintiff
continued to be somewhat tender over the anterior aspect of the ankle. Dr. Trevino
opined that surgery was not indicated for plaintiff’s condition and that she may
always have some residual pain. Dr. Trevino opined that plaintiff needed to seek a
more sedentary job. Plaintiff was instructed to return as needed. (Tr. 196-97.)
Plaintiff visited NP Behrouzi-Jareh on July 15, 2010, with complaints of
swelling and ankle pain. Plaintiff also complained that she could hardly walk. She
rated her pain a level nine. Plaintiff reported that she was unable to work because
of the pain. Physical examination showed no swelling. The Achilles tendon was
noted to be very tight with some inflammation. Tenderness to light palpation and
to light touch was noted at the deep peroneal nerve. Pulses were otherwise
- 14 -
palpable and sensations were intact. Dorsiflexion and plantar flexion were limited
because of pain. NP Behrouzi-Jareh instructed plaintiff to take Aleve twice a day
and to wear a sports brace on the ankle for support. Plaintiff was taught how to do
exercises to stretch the Achilles tendon. NP Behrouzi-Jareh recommended that
plaintiff attend physical therapy, but plaintiff reported being unable to pay for such
treatment because of lack of insurance and lack of a job. Plaintiff was instructed to
return as needed. (Tr. 194-95.)
On January 20, 2011, plaintiff underwent an evaluation for disability
determinations at the University of Missouri Health Care Physical, Medical, and
Rehabilitation Clinic. Plaintiff reported having increased pain in her right lower
extremity subsequent to surgery in November 2009. Plaintiff reported having
severe pain and intermittent swelling and color changes. Plaintiff reported being
referred for pain management, but that she did not have the funds for such
treatment. She rated her current pain to be at a level eight to nine, but that her pain
is at a level five when at its best. Plaintiff reported that she could walk three
blocks at the most, she crawls on the floor when her leg pain is significant, and
uses her crutches once every two weeks. Plaintiff reported currently receiving no
treatment for her condition and that she took over-the-counter anti-inflammatory
medication. Physical exam showed hyperpigmentation over the lateral side of the
ankle with small circular areas of discoloration. Plaintiff was able to do ankle rolls
- 15 -
actively without difficulty. Both lower extremities were noted to be cold. Normal
strength was noted in the ankle dorsi- and plantar flexors, but plaintiff complained
of pain with resisted flexion. Girth of the right calf was noted to be 2.5 centimeters
smaller than the left. Sensory deficit was noted from the knee to the foot in the
right lower extremity. Callous formation on the toe pads was noted bilaterally,
indicative of walking without shoes. Dr. Kevin D. Komes noted plaintiff to be able
to stand on her toes and heels and to be able to squat. No warmth or swelling was
noted in either ankle. Gait evaluation showed that plaintiff could walk at least fifty
feet without difficulty and without an assistive device. Plaintiff’s gait was noted to
be antalgic. Dr. Komes diagnosed plaintiff with history of right ankle surgeries
and possible RSD. Dr. Komes noted there to be no significant abnormality
demonstrated by physical examination, but that photographs presented by plaintiff
may demonstrate vascular instability of the right lower extremity. Dr. Komes
opined that plaintiff: would have no difficulty with sitting and should be able to
stand fifteen to thirty minutes continuously; should be able to walk fifteen minutes
continuously, but that her traveling may be limited by her ambulatory capacity;
could stand and/or walk at least two hours total in an eight-hour workday; and
could not sustain a forty-hour workweek on a continuous basis. (Tr. 235-41.)
Plaintiff visited NP Behrouzi-Jareh on June 17, 2011, and reported that she
had recently sprained her ankle and that she was experiencing more pain and
- 16 -
swelling. Plaintiff reported the pain to be at a level eight, but that it was different
from her RSD pain, which affected half of her leg. Physical examination showed
no swelling. Skin discoloration was noted. NP Behrouzi-Jareh noted plaintiff to
continue to have all of the components of RSD. Pain with inversion was noted,
with hypersensitivity to light touch from under her knee down to the toes. No pain
was noted with eversion and dorsi- or plantar flexion. Tenderness to palpation was
noted about the ankle. An x-ray of the right ankle showed no change from
previous studies. NP Behrouzi-Jareh reported having difficulty evaluating and
examining plaintiff given the active status of her RSD and hypersensitivity.
Plaintiff was given a removable cast and was instructed to return in four weeks.
(Tr. 253-55, 256.)
Plaintiff returned to NP Behrouzi-Jareh on July 15, 2011, and complained of
intermittent shooting pain radiating up her leg to the thigh area and down into the
foot. Plaintiff reported slight improvement with the hypersensitivity but that she
continued to have a lot of pain around her foot. She also reported discoloration
and intermittent swelling. Plaintiff reported her pain to be at a level seven and that
nothing controls it. Plaintiff reported that Xanax6 helps her sleep. Physical
examination showed atrophy of about one inch of the right calf. Skin discoloration
Xanax (Alprazolam) is used to treat anxiety disorders and panic disorder. Medline Plus (last
revised Nov. 1, 2010).
- 17 -
was noted when compared to the other foot. Hypersensitivity was noted about the
right ankle, but NP Behrouzi-Jareh noted it not to be as pronounced as the last
visit. Some pain was noted with palpation of the first toe, but good flexion and
extension. Dorsiflexion and plantar flexion were equal bilaterally. The remainder
of the exam was unremarkable. NP Behrouzi-Jareh diagnosed plaintiff with right
ankle sprain, right ankle pain, and RSD. NP Behrouzi-Jareh reported that she
could not fully examine plaintiff for nerve or ligament damage, because of the
nerve damage and hypersensitivity. Opining that plaintiff had a nerve problem, NP
Behrouzi-Jareh ordered EMG and nerve conduction studies. Plaintiff’s
prescription for Xanax was refilled. (Tr. 250-52.)
Plaintiff underwent nerve conduction and EMG studies of the right lower
extremity and lumbar paraspinals on August 4, 2011, which yielded normal results.
There was no electrophysiologic evidence of right peroneal, tibial, or sciatic
neuropathy, lumbosacral plexopathy, or radiculopathy. (Tr. 247.)
IV. Medical Evidence Submitted to Appeals Council7
In a letter dated December 9, 2011, and addressed “To Whom It May
Concern,” Dr. Kondro wrote that plaintiff was examined that date and was found to
In determining plaintiff’s request to review the ALJ’s decision, the Appeals Council considered
additional evidence that was not before the ALJ at the time of his decision. The Court must
consider this evidence in determining whether the ALJ's decision was supported by substantial
evidence. Frankl v. Shalala, 47 F.3d 935, 939 (8th Cir. 1995); Richmond v. Shalala, 23 F.3d
1441, 1444 (8th Cir. 1994).
- 18 -
have signs and symptoms consistent with RSD of the right leg for which she was
receiving treatment from specialists at the University of Missouri. Dr. Kondro
indicated the treatment might include nerve blocks and nerve stimulation implants.
Dr. Kondro wrote, “I foresee this will be a chronic problem . . . and is certainly
disabling at this time.” (Tr. 263.)
On February 2, 2012, plaintiff underwent right L3 and L4 sympathetic
blocks for her diagnosed condition of right foot and ankle complex regional pain
syndrome. In recovery, plaintiff continued to have a significant amount of right
leg pain without any improvement in her foot pain. Morphine was administered,
which gave her immediate relief. (Tr. 266-67.)
On March 29, 2012, a thoracic spinal cord stimulator was temporarily
implanted in plaintiff’s spine for her diagnosed condition of complex regional pain
syndrome with right lower extremity chronic neuropathic pain. Plaintiff recovered
in stable condition and was discharged that same date. It was noted that a decision
would be made in seven days as to whether plaintiff would receive a permanent
implant. (Tr. 271-73.)
V. The ALJ's Decision
The ALJ found that plaintiff last met the insured status requirements of the
Social Security Act on December 31, 2010, and had not yet attained twenty-two
years of age at the time of the alleged onset of disability, June 26, 2009. The ALJ
- 19 -
found that plaintiff had not engaged in substantial gainful activity since June 26,
2009. The ALJ found plaintiff’s OCD lesion of the right talus (status post
microfracture procedure), status post peroneus brevis tear, and RSD to be severe
impairments, but that plaintiff did not have an impairment or combination of
impairments that met or medically equaled an impairment listed in 20 C.F.R. Part
404, Subpart P, Appendix 1. (Tr. 11-12.) The ALJ found that plaintiff had the
residual functional capacity (RFC) to perform sedentary work8 except that she
never climb ladders, ropes, or scaffolds or work around unprotected
heights, open flames, or dangerous and/or moving machinery. She
can occasionally climb ramps and stairs, balance, stoop, kneel, crouch,
and crawl. The claimant can understand, remember, and carryout
[sic] short, simple instructions, and maintain attention and
concentration for extended periods on simple tasks.
(Tr. 12.) The ALJ found plaintiff unable to perform any of her past relevant work.
Considering plaintiff’s age, education, work experience, and RFC, the ALJ
determined vocational expert testimony to support a finding that plaintiff could
perform other work as it existed in significant numbers in the national economy,
and specifically, order clerk, final assembler, and optical goods worker. The ALJ
therefore found that plaintiff was not under a disability from June 26, 2009,
“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined
as one which involves sitting, a certain amount of walking and standing is often necessary in
carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and
- 20 -
through the date of the decision. (Tr. 16-17.)
To be eligible for DIB and SSI under the Social Security 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). In order to receive CDB under the relevant provisions of the Act, plaintiff’s
disability must have commenced prior to her attaining twenty-two years of age. 20
C.F.R. § 404.350(a). 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 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. §§
To determine whether a claimant is disabled, the Commissioner engages in a
five-step evaluation process. See 20 C.F.R. §§ 404.1520, 416.920; Bowen v.
other sedentary criteria are met.” 20 C.F.R. §§ 404.1567(a), 416.967(a).
- 21 -
Yuckert, 482 U.S. 137, 140-42 (1987). The Commissioner begins by deciding
whether the claimant is engaged in substantial gainful activity. If the claimant is
working, disability benefits are denied. Next, the Commissioner decides whether
the claimant has a “severe” impairment or combination of impairments, meaning
that which significantly limits her ability to do basic work activities. If the
claimant's impairments are not severe, then she is not disabled. The Commissioner
then determines whether claimant's impairments meets or equals one of the
impairments listed in 20 C.F.R., Subpart P, Appendix 1. If claimant's impairments
is equivalent to one of the listed impairments, she is conclusively disabled. At the
fourth step, the Commissioner establishes whether the claimant can perform her
past relevant work. If so, the claimant is 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 it adequate to support the conclusion. Johnson v.
Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). This “substantial evidence test,”
- 22 -
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.” Id. (internal quotation
marks and citations omitted).
To determine whether the Commissioner's decision is supported by
substantial evidence on the record as a whole, the Court must review the entire
administrative record and consider:
The credibility findings made by the ALJ.
The plaintiff's vocational factors.
The medical evidence from treating and consulting physicians.
The plaintiff's subjective complaints relating to exertional and
non-exertional activities and impairments.
Any corroboration by third parties of the plaintiff's
The testimony of vocational experts when required which is
based upon a proper hypothetical question which sets forth the
Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir.
1992) (internal citations omitted). The Court must also consider any evidence
which fairly detracts from the Commissioner’s decision. Coleman, 498 F.3d at
770; Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999). However, even
- 23 -
though 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. Pearsall, 274 F.3d at 1217 (citing Young v. Apfel, 221 F.3d
1065, 1068 (8th Cir. 2000)). “[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. Barnhart, 315 F.3d 974, 977 (8th Cir. 2003).
For the following reasons, the ALJ committed no legal error, and his
decision is supported by substantial evidence on the record as a whole.
Evidence Submitted to the Appeals Council
After the ALJ issued his decision, plaintiff requested review by the Appeals
Council and submitted new evidence, which included Dr. Kondro’s December
2011 letter wherein he opined that plaintiff was disabled. Plaintiff claims that the
Appeals Council erred when it “ignored” and “refused to consider [her] additional
evidence” (Pltf.’s Brief, Doc. #14) inasmuch as such evidence related to the period
prior to the ALJ’s decision and thus was material to the decision. A review of the
record refutes plaintiff’s claim that the Appeals Council failed to consider this new
Under the Regulations, the Appeals Council must evaluate the entire record,
- 24 -
including any new and material evidence submitted to it after the ALJ's decision
relating to the period on or before the date of the ALJ’s decision. 20 C.F.R. §§
404.970(b), 416.1470(b). If, upon consideration of the entire record, the Appeals
Council finds that the ALJ's action, findings, or conclusion is contrary to the
weight of all the evidence, it will then review the ALJ’s decision. 20 C.F.R. §§
Here, the Appeals Council included plaintiff’s additional evidence in the
administrative record (see Order of Appeals Council, Tr. 5) and specifically stated
in its Notice of Action that it considered this evidence in making its decision to
deny plaintiff’s request for review. (Tr. 1.) Upon such consideration, the Appeals
Council determined that such evidence did not provide a basis for changing the
ALJ's decision. (Tr. 2.) Accordingly, contrary to plaintiff’s assertion, the Appeals
Council did not “ignore” or “refuse to consider” this evidence, rather the Appeals
Council did in fact consider it in accordance with the Regulations. Plaintiff’s
claim on this point fails.
Inasmuch as the Appeals Council considered this evidence in its
determination not to review the ALJ’s decision, such evidence is now a part of the
administrative record that this Court must consider in determining whether the
ALJ’s decision continues to be supported by substantial evidence on the record as a
whole. To the extent plaintiff argues that Dr. Kondro’s December 2011 letter
- 25 -
affects the ALJ’s decision, the undersigned notes that such letter contains Dr.
Kondro’s speculation as to future treatment and his opinion that plaintiff was
disabled. A medical source’s opinion that a claimant is disabled and unable to
work, however, involves an issue reserved for the Commissioner and is not the
type of opinion that the Commissioner must credit. Renstrom v. Astrue, 680 F.3d
1057, 1065 (8th Cir. 2012); Ellis v. Barnhart, 392 F.3d 988, 994-95 (8th Cir.
2005). To the extent the additional evidence before the Appeals Council showed
plaintiff to have subsequently undergone nerve blocks and a nerve stimulation
implant, such evidence does not undermine the ALJ’s decision that while plaintiff
experienced limiting pain, it was not to such a degree as to preclude the
performance of a limited range of sedentary work. See Perkins v. Astrue, 648 F.3d
892, 901 (8th Cir. 2011) (“As is true in many disability cases, there is no doubt that
the claimant is experiencing pain; the real issue is how severe that pain is.”)
(internal quotation marks and citation omitted).
Social Security Ruling 03-2p and Plaintiff’s Credibility
In October 2003, the Social Security Administration issued SSR 03-2p in
order to explain its policies for evaluating claims for disability on the basis of
RSD. As described in the Ruling, RSD is a chronic pain syndrome most often
resulting from trauma to a single extremity. The most common acute clinical
manifestations include complaints of intense pain and findings indicative of
- 26 -
autonomic dysfunction – such as skin temperature changes and discoloration – at
the site of the precipitating trauma. SSR 03-2p, 2003 WL 22399117, at **1-2
(Soc. Sec. Admin. Oct. 20, 2003). Symptoms of RSD are transient in nature. Id. at
*4. This transient nature, however, must not affect a finding that the condition is a
medically determinable impairment. Id.
Disability claims involving RSD are evaluated using the five-step sequential
evaluation process, discussed supra at p. 21, just as for any other impairment.
Although chronic pain is itself a symptom of RSD, the ALJ must continue to make
a finding on the credibility of the claimant’s subjective complaints of pain and
other symptoms based on a consideration of the entire case record. 2003 WL
22399117, at *6; see also Combs v. Astrue, 243 Fed. Appx. 200, 205 (8th Cir.
2007). “This includes the medical signs and laboratory findings, the individual's
own statements about the symptoms, any statements and other information
provided by treating or examining physicians or psychologists and other persons
about the symptoms and how they affect the individual, and any other relevant
evidence in the case record.” SSR 03-2p, 2003 WL 22399117, at *6. Such “other
relevant evidence” in the record includes:
1. The individual's daily activities;
2. The location, duration, frequency, and intensity of the individual's
pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
- 27 -
4. The type, dosage, effectiveness, and side effects of any medication
the individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the individual receives or has
received for relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has used
to relieve pain or other symptoms (e.g., lying flat on his or her back,
standing for 15 to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning the individual's functional limitations
and restrictions due to pain or other symptoms.
SSR 96-7p, 1996 WL 374186, at *3 (Soc. Sec. Admin. July 2, 1996). See also
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984) (subsequent history
omitted) (the Polaski factors). Whether RSD or any other medically determinable
severe impairment is alleged as a basis for disability, a claimant’s credibility is for
the Commissioner, and not the Court, to make. Tellez v. Barnhart, 403 F.3d 953,
957 (8th Cir. 2005); e.g., Bondurant v. Astrue, No. 09-328 ADM/AJB, 2010 WL
889932 (D. Minn. 2010). See also Oldham v. Astrue, 509 F.3d 1254, 1257 (10th
Cir. 2007). Where an ALJ explicitly considers the Polaski factors, but then
discredits a claimant’s complaints for good reason, the decision should be upheld.
Hogan v. Apfel, 239 F.3d 958, 962 (8th Cir. 2001).
In this case, the ALJ found plaintiff’s RSD to be a severe medically
determinable impairment. Plaintiff claims, however, that despite this finding, the
ALJ failed to acknowledge SSR 03-2p and its policies governing the evaluation of
- 28 -
this impairment and, specifically, that chronic pain is a symptom of RSD
sometimes immeasurable by objective medical findings. Plaintiff claims that by
failing to consider SSR 03-2p, the ALJ wrongfully placed undue emphasis on the
lack of objective findings in plaintiff’s case and failed to consider the required
factors when determining the credibility of her subjective complaints. For the
following reasons, a review of the ALJ’s decision shows him to have properly
considered the Polaski factors in determining plaintiff’s credibility and not to have
placed too much weight on the objective medical evidence of record.
As an initial matter, the undersigned notes that the ALJ observed the medical
evidence to show that plaintiff experienced tenderness and hypersensitivity to
touch as well as an antalgic gait such that she is unable to stand and walk more
than two hours in an eight-hour day. (Tr. 15.) Indeed, the ALJ noted this evidence
to be consistent with Dr. Komes’ January 2011 opinion that plaintiff was capable
of standing and walking for at least two hours out of an eight-hour day as well as
Dr. Trevino’s statement that plaintiff needed to seek a more sedentary job. (Tr. 1516.) Nevertheless, the ALJ set out numerous inconsistencies in the record upon
which he discredited plaintiff’s subjective complaints to the extent she claimed that
her pain rendered her unable to work.
First, the ALJ noted that plaintiff took no form of pain medication other than
over-the-counter medication. Such use of only over-the-counter pain relievers
- 29 -
suggests that the severity of the pain is not so great as to be disabling. See
Ostronski v. Chater, 94 F.3d 413, 418-19 (8th Cir. 1996). To the extent plaintiff
claims that the ALJ should not have relied upon plaintiff’s lack of significant pain
medication given her financial inability to afford such medication, a review of the
record shows that no physician or other medical source prescribed significant pain
medication subsequent to the November 2009 surgery or recommended anything
other than over-the-counter anti-inflammatory medication. As such, the record
does not show that plaintiff was ever placed in a position where she had to choose
to forego prescribed pain medication, because of a lack of finances. The fact that
no doctor recommended any pain medication beyond over-the-counter antiinflammatories may be used by the ALJ to discount plaintiff’s subjective
complaints of pain. See Clark v. Chater, 75 F.3d 414, 417 (8th Cir. 1996).9
The ALJ also found plaintiff’s daily activities to show that she is not
precluded from performing work within the stated RFC, specifically noting
plaintiff’s ability to independently attend to her personal care, prepare meals, do
laundry, use a riding lawnmower, dust her home, drive short distances, and manage
her financial affairs. The undersigned also notes that plaintiff testified that she is
able to grocery shop while sitting in a motorized scooter, pick apples while sitting,
Plaintiff testified at the hearing that she was prescribed Neurontin, but could not afford to fill
the prescription. A review of the medical record in its entirety, however, fails to show that any
medical source prescribed this medication.
- 30 -
visit her father who lives in another town, take her father shopping when she visits
him, and manage her father’s finances. In addition, plaintiff’s Function Report
shows that she sometimes goes to the park with friends to watch their children
play; vacuums each week; helps clean up after dinner; and reads, watches
television, and scrapbooks every day. (See Tr. 156-61.) When viewed in toto,
such activities are inconsistent with an assertion of disability. See Medhaug v.
Astrue, 578 F.3d 805, 817 (8th Cir. 2009) (acts such as cooking, vacuuming,
washing dishes, doing laundry, shopping, driving, and walking are inconsistent
with subjective complaints of disabling pain); Pelkey v. Barnhart, 433 F.3d 575,
578 (8th Cir. 2006) (acts such as performing household chores, mowing the lawn,
raking leaves, shopping for groceries, visiting with friends, and driving a car
inconsistent with subjective complaints of disabling pain); Dunahoo v. Apfel, 241
F.3d 1033, 1038 (8th Cir. 2001) (acts such as cleaning the house, doing the dishes
with help, making meals, visiting with friends, occasional shopping, and running
errands inconsistent with complaints of disabling pain).
In addition, the ALJ’s summary of the medical evidence shows him to have
considered the numerous findings of essentially normal physical examinations that
showed plaintiff to have normal range of motion about the ankle, minimal
swelling, normal pulse, and intact sensation and that there was no medical
necessity for plaintiff to elevate her leg. As noted above, the ALJ also summarized
- 31 -
the medical evidence that demonstrated plaintiff’s tenderness and hypersensitivity
to touch, and accounted for such findings in the RFC determination. While an ALJ
may not discredit subjective complaints of pain solely because they are not fully
supported by objective medical evidence, he may nevertheless consider such
evidence in determining a claimant’s credibility. Ramirez v. Barnhart, 292 F.3d
576, 581 (8th Cir. 2002). A review of the ALJ’s decision shows him to have
properly reviewed and weighed all the relevant evidence of record, including the
medical evidence, in determining plaintiff’s credibility.
Because the ALJ adequately discussed the factors required by SSR 03-2p,
SSR 96-7p, and Polaski in finding that plaintiff was not fully credible, and such
finding is supported by good reasons and substantial evidence on the record as a
whole, this Court must defer to the ALJ’s determination. Clevenger v. Social
Security Admin., 567 F.3d 971, 975-76 (8th Cir. 2009); Hogan, 239 F.3d at 962.
This is so even if substantial evidence would support an opposite conclusion.
Jones v. Chater, 86 F.3d 823, 825-26 (8th Cir. 1996).
Finally, the mere failure of the ALJ to cite to SSR 03-2p in his decision does
not equate with a finding that he failed to consider the Ruling or abide thereby.
This is especially true here where a review of the ALJ’s decision shows it not to
run afoul of the policy considerations in the Ruling, and indeed to have complied
with the Ruling’s directives when evaluating plaintiff’s RSD impairment. Cf.
- 32 -
Holley v. Massanari, 253 F.3d 1088, 1092 (8th Cir. 2001) (ALJ’s failure to cite
legal authority (i.e., Polaski) was not error where decision shows ALJ to have
complied with such authority by considering factors required thereby).
When reviewing an adverse decision by the Commissioner, the Court’s task
is to determine whether the decision is supported by substantial evidence on the
record as a whole. Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001). “Substantial
evidence is defined to include such relevant evidence as a reasonable mind would
find adequate to support the Commissioner's conclusion.” Id. Where substantial
evidence supports the Commissioner's decision, this Court may not reverse the
decision merely because substantial evidence exists in the record that would have
supported a contrary outcome, or because another court could have decided the
case differently. Id.; see also Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir.
2011); Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001).
For the reasons set out above on the claims raised by plaintiff on this appeal,
a reasonable mind can find the evidence of record sufficient to support the ALJ’s
determination that plaintiff was not disabled from June 26, 2009, through the date
of the decision. Because substantial evidence on the record as a whole supports the
ALJ’s decision, it must be affirmed. Davis, 239 F.3d at 966. This Court may not
reverse the decision merely because substantial evidence exists that may support a
- 33 -
IT IS HEREBY ORDERED that the final decision of the Commissioner is
affirmed, and plaintiff’s Complaint is dismissed with prejudice.
A separate Judgment in accordance with this Memorandum and Order is
entered this same date.
UNITED STATES MAGISTRATE JUDGE
Dated this 19th day of September, 2014.
- 34 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?