Gore v. Commissioner of Social Security
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. A judgment in accordance with this Memorandum and Order will be entered separately. Signed by District Judge Carol E. Jackson on 3/3/15. (JAB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
KIMBERLY L. GORE,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Case No. 2:14-CV-0019 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court for review of an adverse ruling by the Social
On March 9, 2011, plaintiff Kimberly L. Gore filed applications for disability
insurance benefits, Title II, 42 U.S.C. §§ 401 et seq., and supplemental security
income, Title XVI, 42 U.S.C. §§ 1381 et seq., with an alleged onset date of January
15, 2011. (Tr. 146-47, 147-53). After plaintiff’s application was denied on initial
consideration (Tr. 87-92), she requested a hearing from an Administrative Law
Judge (ALJ). (Tr. 93-94). Plaintiff and counsel appeared for a hearing on August
28, 2012. (Tr. 34-81). The ALJ issued a decision denying plaintiff’s application on
September 14, 2012. (Tr. 7-33). The Appeals Council denied plaintiff’s request for
review on January 9, 2014. (Tr. 1-6). Accordingly, the ALJ’s decision stands as the
Commissioner’s final decision.
II. Evidence Before the ALJ
A. Disability Application Documents
In her Disability Report filed on March 11, 2011 (Tr. 206-15), plaintiff listed
her disabling conditions as major depressive disorder, recurrent asthma, fatigue,
arthritis, GERD, irritable bowel syndrome, and borderline personality disorder. She
took prescription medications for bone health, depression, contraception, blood
pressure, GERD and asthma.
She also took potassium and iron and
over-the-counter medications for her heart, sinuses, cholesterol, and pain. In her
Disability Report filed on July 18, 2011 (Tr. 216-21), plaintiff stated that her pain
and depression had worsened.
She delayed or occasionally did not engage in
personal grooming. (Tr. 219). At other times she was obsessive about personal
She was sleeping less, had become less focused, could not keep her
house clean, and had less of a desire for things in her life.
Plaintiff’s friend, Johanna Charlton, and aunt, Tiana Gollaher, completed
Third-Party Function Reports in August 2011. (Tr. 222-25, 226-29). Ms. Charlton
described plaintiff as depressed and in pain a lot.
She stated that
plaintiff sometimes would put off caring for her personal hygiene for day or two.
(Tr. 224). She did not have difficulty performing household chores, but they had to
be done perfectly. She acted rudely to public authorities, appeared stressed on a
daily basis, and easily forgot what she was doing.
Ms. Gollaher stated that
plaintiff’s mood constantly changed and her impulsive manner forced her to be
She experienced pain in her back, shoulders, head and neck.
She did not have difficulties with personal hygiene or household chores, but would
procrastinate or become angry if they were done improperly.
B. Testimony at the Hearing
Plaintiff was 35 years-old at the time of the hearing. (Tr. 37). She had two
children, ages 15 and 11, neither of whom lived with her. Her daughter had been
adopted by others, and her son lived with his father who had legal custody of him.
She had never been married and did not have a permanent residence.
(Tr. 38-40). She alternated between staying with her parents and staying at her
son’s father’s house. (Tr. 40). She had a medical card, and received food stamps
and Medicaid assistance.
Plaintiff graduated from high school and
completed two years of technical education in office systems. (Tr. 41).
last employment was at General Mills where she had worked for two and a half
In January 2011, she walked out on the job on an impulse when her
employer moved her to work in an area and with people she felt uncomfortable
around. (Tr. 38).
Plaintiff testified that her mental health issues stemmed from an experience
she had when she was four or five.
Plaintiff witnessed her mother’s
boyfriend get shot and killed by an intruder who also held a loaded gun to her and
her sister’s heads.
Plaintiff stated that her mother married twice and had 35-40
live-in boyfriends before plaintiff reached the age of seven. (Tr. 45). Plaintiff also
said she had been molested and raped three times as a teenager. (Tr. 44). She
experienced post-traumatic stress disorder as a result of her experiences, and had
recurring daydreams and nightmares of these events.
She saw a
psychiatrist once a month, but did not receive counseling because she could not
afford the fee. (Tr. 42). She had previously received free counseling from White
Oaks Counseling, but was let go from their program. (Tr. 43).
Plaintiff testified that she had “bipolar depression” and sometimes stayed in
bed for three or four days at a time. (Tr. 45). She had worn her night clothes for
as long as a week, but she took care of her personal hygiene and was a
perfectionist about cleaning. (Tr. 46, 52). Before she began taking medication for
her depression, plaintiff had crying spells two or three times a day every day lasting
from 30 minutes to all day. After she began taking the medication in June or July
2011, her crying spells decreased to once or twice a day and were of shorter
Plaintiff stated that she felt nervous around others, and
described herself as a hermit. Once or twice a month she actually enjoyed leaving
her house. She tried to go grocery shopping early in the morning when the stores
To pass time during the day, plaintiff said she cross-
stitched, crocheted, engaged in housekeeping, and read the Bible. (Tr. 56). She
did not attend church or participate in any social organizations.
Plaintiff testified that she lost custody of her children seven years earlier,
because she was deemed suicidal, homicidal and unsafe to be around her children.
She had not seen her daughter since that time.
attempt to commit suicide was seven years before the hearing, and she was
involuntarily committed to psychiatric care.
She had been in
rehabilitation at that time for abusing Vicodin and for alcoholism and she later
successfully completed the program.
She testified to having obsessive
thoughts about hurting her children and others. (Tr. 52-53).
Plaintiff was also diagnosed with irritable bowel syndrome, and experienced
diarrhea six to ten times a day for ten to fifteen minutes at a time. (Tr. 53). She
was usually able control her bowels long enough to reach a restroom.
Plaintiff testified that she had sciatica, which caused constant pain in her legs, hips,
and lower back. (Tr. 55). She also said she had two bulging discs in her neck that
affected her neck, shoulders and arms.
The ALJ asked plaintiff about her past work experience. (Tr. 58-61). In the
preceding fifteen years, plaintiff had worked in a fast food restaurant, as a cashier
at a convenience store, as a CNA at several hospitals and a nursing home, as a
stocker at Walmart, and as a laborer and night cleaning crew at a factory. Plaintiff
stated that she could not return to these jobs, either because of her social phobia
and impulsive anger issues or because of pain from the physical requirements of
the job. (Tr. 67-70). She testified that she was frustrated with herself for being
unable to maintain a job, but she could not handle being around people and wanted
to cry all of the time. (Tr. 71).
employment opportunities for an individual of plaintiff’s age, education, and work
experience, who retains the residual functional capacity for light work but is limited
to simple, routine, and repetitive tasks not requiring more than superficial
interaction with the public or coworkers. The ALJ asked the vocational expert if this
individual could perform any of the plaintiff’s past relevant jobs. Ms. Shea opined
that such an individual would be able to perform the assembly work in a factory,
but not the clean-up work which, based on plaintiff’s testimony, involved more than
superficial interaction with coworkers. (Tr. 77-78).
When asked if she could identify any other jobs that exist in the local,
regional, or national economy for that hypothetical person, Ms. Shea stated there
were cleaning or housekeeping jobs, machine tending jobs, and other manual work.
When asked if there were any jobs for an individual with the same
vocational factors as plaintiff but with the inability to engage in sustained work
activity for a full eight-hour day on a regular and consistent basis, Ms. Shea opined
that there were no jobs available for such a person. In response to questions from
plaintiff’s counsel, Ms. Shea opined that an individual in the identified jobs could be
off-task no more than 10% of the time and still be considered employable. (Tr. 7980). Ms. Shea also stated that an employer would tolerate no more than two days
a month of absenteeism after the probationary period in the identified jobs, and no
absences during the probationary period of employment. (Tr. 80).
C. Medical Records
On May 5, 2010, plaintiff was treated at the Community Health Center for
depression, which she reported had been getting worse. (Tr. 333-34). She had not
taken medication to treat her mental illness for four or five years.
prescribed Celexa. At a follow-up appointment on June 9, 2010, she reported that
her depression had improved, but she had lower back pain shooting up and down
her spine for which she was prescribed a muscle relaxer. (Tr. 329-30). At a followup appointment on July 8, 2010, she reported that her back pain was better. (Tr.
327-28). She also stated that her mood was better, but had room to improve. She
had begun to do housework again and enjoyed bathing.
Plaintiff went to Hannibal Regional Hospital on August 16, 2010, complaining
of an acute, throbbing left ear pain of four months’ duration.
Timothy B. Raleigh, D.O., diagnosed her with eustachian tube dysfunction, upper
respiratory infection, and nonspecific allergies. He prescribed Claritin, a Nasocort
inhaler, and doxycycline. Plaintiff returned the next day, complaining of headache,
ear pain, dizziness and vomiting. (Tr. 274-93). Following blood tests, an EKG, and
CT head scan, Rachel Hammel, M.D., made a diagnosis of headache and vertigo
and prescribed Antivert, Bactrim, and Ultram.
Plaintiff continued to complain of
dizziness, blurred vision, and a constant headache at follow-up visits in the
following weeks at the Community Health Center (Tr. 320-25).
Plaintiff was treated at Hannibal Clinic on September 21, 2010. (Tr. 253-56).
She reported a medical history of hypertension, hyperlipidemia, anxiety/depression,
gastroesophageal reflux, and irritable bowel syndrome.
She was taking Celexa,
Zantac, Claritin, Lisinopril, and various over-the-counter medications at that time.
She reported a history of addiction to Vicodin, codeine, and alcohol, but stated she
was in recovery. She also reported smoking a pack of cigarettes per day since she
On examination, Larry Nichols, D.O., reported her vital signs as
unremarkable. Plaintiff was overweight at 194 pounds. She complained of chronic
left ear pain on a daily basis for the previous six months, but no abnormalities were
found on examination. She also complained of generalized fatigue, stating, “I am
just so tired I can hardly go.” She reported problems of intermittent diarrhea and
cramping. Dr. Nichols prescribed Levbid for irritable bowel and an increased fiber
intake in her diet.
Plaintiff returned to Hannibal Clinic on September 27, 2010.
She complained of an aching pain with occasional sharp exacerbation in her left ear
progressing into the left side of her neck.
Kevin B. Imhof, D.O., found some
guarding to palpation over the soft tissue of her neck, but stated the etiology was
uncertain. Dr. Imhof advised her to take Ibuprofen for three to four weeks for the
neck pain. At a follow-up evaluation on October 29, 2010, plaintiff did not report
improvement to her neck or ear pain. Dr. Imhof prescribed Celebrex and a CT scan
of the head and neck. (Tr. 258-59). At a follow-up examination on November 9,
2010, plaintiff reported that the Celebrex was not successful. (Tr. 259). She did
not undergo the CT scan, because her insurance would not cover it. Dr. Imhof then
prescribed a trial of Tegretol. On December 7, 2010, plaintiff underwent a physical
examination at Willow Care that was found within normal limits. (Tr. 252). At a
follow-up visit at the Community Health Center for her depression, plaintiff was
prescribed Wellbutrin in addition to Celexa. (Tr. 314-15).
On January 16, 2011, plaintiff went to Hannibal Regional Hospital for
traumatic ankle pain. (Tr. 264-71). She reported that she had fallen on the ice
that morning as she was heading to work and injured her left ankle. Examination
revealed a tender left anterior ankle without swelling.
The left ankle’s range of
motion was intact but painful. She was diagnosed with a sprained ankle, instructed
to wear an ace bandage and air splint, and discharged. At a follow-up appointment
at the Community Health Center, plaintiff reported a sharp burning pain in her
ankle. (Tr. 312-13). On January 24, 2011, her ankle was diagnosed as healing,
and she was told she could return to work the next day. (Tr. 310-11). At a visit to
the Community Health Center on January 28, 2011, she complained of swelling on
her ankle and stated that she had tried to return to work but experienced increased
pain. (Tr. 308-09). She was referred for an orthopedic consultation.
At the University of Missouri Health Care, x-rays of plaintiff’s left ankle did
not show anything usual.
She was taught how to desensitize her
ankle and was prescribed Ibuprofen. She was also given a CAM boot to wear, and
advised to not work for two weeks. At a follow-up appointment on March 1, 2011,
plaintiff’s ankle was still very hypersensitive but showed no swelling. (Tr. 346-47).
She was instructed to continue to wear the CAM boot, perform desensitization and
range of motion exercises, and take Ibuprofen. On April 5, 2011, she reported no
pain in her ankle and was given an ankle brace to wear in replacement of the boot.
(Tr. 344-45). At a visit to the Community Health Center on March 8, 2011, plaintiff
reported that she was not sleeping, was crying, felt restless, had suicidal thoughts,
and experienced diarrhea.
Her Wellbutrin prescription was discontinued due to
adverse side effects, and she was prescribed Citalopram. She was also advised to
follow-up with a psychiatrist.
Karen A. MacDonald, Psy.D., completed a consultative mental examination of
plaintiff on June 12, 2011. (Tr. 354-59). Dr. MacDonald noted plaintiff’s history of
violent physical, sexual and verbal abuse.
She found that plaintiff exhibited
adequate personal hygiene, appropriate facial expressions, adequate eye contact,
and a cooperative nature.
She observed that plaintiff reflected feelings of
helplessness, worthlessness, hopelessness, suicidal ideation and attempts, and
extreme sadness. Dr. MacDonald also noted that plaintiff experienced chaotic and
unstable interpersonal relationships and lifestyle.
She found plaintiff’s attention,
memory, and ability to follow simple instructions were not impaired. Her incidental
learning, pace and persistence, and abstract motor speed were impaired.
diagnosed plaintiff with major depressive disorder and borderline personality
She assigned a Global Assessment of Functioning score of 50.1
The GAF is determined on a scale of 1 to 100 and reflects the clinician’s judgment of an individual’s overall level
of functioning, taking into consideration psychological, social, and occupational functioning. Impairment in
functioning due to physical or environmental limitations is not considered. American Psychiatric Association,
Diagnostic & Statistical Manual of Mental Disorders ‐ Fourth Edition, Text Revision 32‐33 (4th ed. 2000). A GAF of
41‐50 corresponds with “serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting)
noted that plaintiff would be capable of managing her own funds. Plaintiff reported
that her longest employment had lasted two and a half years at General Mills, and
she had lost her previous job as a nursing assistant because of her sprained ankle.
Dr. MacDonald concluded that plaintiff could sustain a 40-hour workweek on a
continuous basis if the work was simple and not detailed.
On July 25, 2011, plaintiff went to Hannibal Regional Hospital with reports of
arm pain, back pain, and a headache.
On examination, her left
shoulder was painful on palpation and pain radiated to her left forearm with areas
of numbness. An MRI found normal signal characteristic of the cervical spine. She
was diagnosed with brachial radiculitis and prescribed Tylenol. She returned to the
hospital on August 16, 2011, reporting dizziness, chronic head, neck and arm pain
attributed to a bad neck, insomnia and occasional urinary incontinence, hot flashes,
nausea, heartburn, and weakness in her entire body.
recovered after resting.
She was diagnosed with vertigo and dehydration, and
instructed to take meclizine for her motion sickness and drink more fluids.
On June 27, 2011, Barbara Markway, Ph.D., completed a Psychiatric Review
Dr. Markway concluded that plaintiff suffered from a
recurrent and severe major depressive disorder and borderline personality disorder.
(Tr. 363, 365).
Plaintiff had moderate difficulties in maintaining concentration,
persistence or pace and maintaining social functioning; she had mild restriction of
daily living activities.
Functional Capacity Assessment.
Dr. Markway also completed a Mental Residual
She found that plaintiff was
moderately limited in the ability to understand, remember, and carry out detailed
OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job,
cannot work).” Id. at 34.
instructions; maintain attention and concentration for extended periods; interact
appropriately with the general public; accept instructions and respond appropriately
to criticism from supervisors; and get along with coworkers or peers without
distracting them or exhibited behavioral extremes.
Dr. Markway concluded that
plaintiff retained the ability to understand, remember, and carry out simple
instructions, adapt to most changes in the work place, and make simple workrelated decisions.
Dr. Markway also anticipated plaintiff would have moderate
difficulty interacting with supervisors and coworkers, and would perform best in a
setting where she could work relatively independently with limited social contact.
Plaintiff underwent a mental health evaluation with Ted Oliver, MSW, LCSW,
at Mark Twain Behavioral Health on August 29, 2011. (Tr. 388-92). Her hygiene
was normal, and she denied suicidal ideations. She reported chronic problems with
instability of interpersonal relationships, and the resulting inability to maintain
steady employment. Mr. Oliver diagnosed her with borderline personality disorder
and depressive disorder. He assigned her a GAF of 50. He also noted that “[d]ue
to her current difficulties with impulsivity [and] reactivity, employment would be
difficult.” (Tr. 392).
On December 6, 2011, plaintiff sought treatment at Hannibal Regional
Hospital for chest pain. (Tr. 452-74). She complained of chest discomfort radiating
to her right chest area and arm, and numbness and tingling to her face, neck,
hands, and feet.
Following a chest x-ray and EKG, plaintiff was diagnosed with
costochondritis and musculoskeletal chest pain. She was given Aspirin and Toradol
IV during her visit, and prescribed Naprosyn. Plaintiff saw Dr. Nichols at Hannibal
Clinic the next day. (Tr. 609-10). She reported that she needed to be on disability
because she just “can’t deal with it.” Dr. Nichols told her that she needed to go
ahead and try to function in her job, and opined that her symptoms were just a
consequence of depression.
On December 12, 2011, plaintiff returned to Hannibal Clinic for an evaluation
of her ears, nose and throat region due to bilateral ear and neck pain. (Tr. 61112). She told Dr. Imhof that a recent MRI scan showed a disc problem in her neck.
Dr. Imhof encouraged her to follow-up with a rheumatologist.
On December 15,
2011, plaintiff sought treatment at Hannibal Regional Medical Group, reporting
lower back pain for two weeks, which had worsened after a fall the previous day.
(Tr. 567-69). She was advised to ice and heat the area.
Plaintiff underwent a psychiatric evaluation with Lyle Clark, M.D., at Hannibal
Regional Medical Group upon referral by Dr. Nichols on December 29, 2011 (Tr.
She stated that she needed to “get back on my medication for my
severe, recurrent depression.” (Tr. 514). She had recently gotten on Medicaid and
was taking only Wellbutrin because she was getting it from the manufacturer. She
described symptoms of major depressive disorder, hypomanic episode, social
phobia, posttraumatic stress disorder, and past alcohol and opioid dependence.
She reported two past suicide attempts seven to eight years prior by wrist cutting
and by drinking bleach. She stated that she had a strained relationship with family
members, since she had to live with her child’s father and had no income.
Clark diagnosed plaintiff with bipolar II, social phobia, and chronic PTSD.
assigned her a GAF score of 51 for “multiple areas of moderate disturbance in
functioning.”2 (Tr. 515). She consented to discontinuing Wellbutrin and to starting
Carbatrol and Lexapro. At follow-up visit on January 19, 2012, plaintiff complained
of problems with her boyfriend.
She noted no difference since
discontinuing Wellbutrin, and reported sleeping better with Carbatrol. She said she
had problems maintaining a normal schedule since she had worked nights for many
years. Because plaintiff could not get Lexapro, she was switched to Celexa. She
was found to be borderline hypothyroid and was started on Synthroid because of
symptoms of poor energy and weight gain.
Dr. Clark noted that her mood
appeared less depressed.
On February 28, 2012, plaintiff underwent neurologic consultation with Brett
D. Hosley, D.O., at Hannibal Clinic regarding facial numbness, neuropathy, and
tremor. (Tr. 597-604). She reported numbness in her cheeks and upper lip from
the stitches in her nose following a dog bite. She stated that she had “shakes” in
her body and in her hands, but that they did not really interfere with her daily
activities. (Tr. 597). She reported a constant sensation in her feet that felt like a
When plaintiff engaged in increased activity, her hands
curled down into a flexed position. After walking or standing for a long time, her
feet “feel like they are trying to curl down into flexion.” (Tr. 598). Plaintiff also
reported an aching pain in her posterior and lateral neck area, a sharp pain in her
ears, and aching pain down her shoulders. She complained of suffering “sciatics”
for the past 12 years, which involved a sharp pain in her lower back that could go
away for a few months and then return again. (Tr. 598). Dr. Hosley did not think
A GAF of 51‐60 corresponds with “moderate symptoms (e.g., flat affect and circumlocutory speech, occasional
panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with
peers or co‐workers).” Id. at 34.
plaintiff’s symptoms of chronic pain were related to a neurologic disorder. She was
referred for testing. Her MRI, EMG and nerve condition studies were reported as
On March 7, 2012, plaintiff reported to Dr. Clark that she was feeling better
and had an improved mood.
Her hygiene was adequate and her
mood appeared less depressed. She felt the Celexa was not working well, so she
was switched to Lexapro. On that same day, plaintiff returned to Hannibal Clinic for
a follow-up visit with Dr. Nichols. He noted that plaintiff had been evaluated “by
just about most of the specialists that she could possibly see,” including
gastroenterology, gynecology, rheumatology, neurology, ear, nose, and throat
specialists, “because of a variety of aches and pains and complaints.”
Dr. Nichols noted that nothing had been found from the consultations.
On March 21, 2012, plaintiff returned to Dr. Hosley for a neurology follow-up.
She reported continuing to have significant pain and discomfort in
her left neck, upper back, and shoulders.
Plaintiff was again diagnosed with
disturbance of sensation of undetermined etiology. Dr. Hosley found no evidence of
a primary neurologic disorder, and thought the symptoms were in part related to
other ongoing general medical and psychiatric issues.
On April 20, 2012, plaintiff reported to Dr. Clark that she had had a very bad
week because of severe PTSD symptoms. (Tr. 502-05). Until then, she had been
doing very well. She reported that her PTSD symptoms had been resolved for the
most part due to interaction with her dog and its newborn puppies. She also felt
her medication had been working. Dr. Clark noted that her hygiene was adequate,
and her mood appeared less depressed.
Dr. Clark assessed her condition as
worsened by stressors, but noted that she was recovering.
Plaintiff had a physical examination at Hannibal Regional Medical Group on
April 25, 2012.
She reported a decreased energy level and was
sleeping poorly. She stated she slept 11 hours a night on average, had abdominal
and neck pain, and experienced anxiety and depression. She was diagnosed with
hyperlipidemia, lower back pain, hypertension and asthma.
She was referred to
dietary counseling for her elevated BMI and advised to quit smoking.
On June 26, 2012, plaintiff met with her psychiatrist, Joseph L. Spalding,
D.O. (Tr. 498-501). She reported that she was trying to get disability for mental
and physical issues. She stated that she had trouble maintaining jobs. She said
she had become angry and impulsively walked out of her last job. She was not on
medication at that time. She reported feeling resentment toward her ex-boyfriend,
because he had reported her to the Division of Family Services and caused her to
lose custody of her children.
Dr. Spalding prescribed Abilify for her mood
symptoms and continued Tegretol and Lexapro.
Plaintiff sought treatment at Hannibal Regional Hospital on June 27, 2012 for
bloody stool associated with IBS.
After lab testing, she was
diagnosed with lower GI bleed and discharged. On July 5, 2012, she returned with
a complaint of rectal bleeding, abdominal pain, dizziness when coughing, and
nausea. (Tr. 560-63). She was referred to an internal medicine specialist. On July
25, 2012, plaintiff sought treatment for neck pain. (Tr. 624-27). She stated she
had not been sleeping well since starting Abilify. She was instructed to take Flexeril
and to do stretching and strengthening exercises for the neck pain.
advised to see Dr. Spalding for her sleeping difficulties.
On August 20, 2012, Dr. Spalding completed a medical source statement.
He opined that plaintiff had mild difficulty in understanding,
remembering, and carrying out complex instructions. She had moderate difficulty
in her ability to carry out complex work-related decisions, interact with the public,
supervisors, and coworkers, and respond appropriately to usual work situations and
changes in routine. Dr. Spalding noted that plaintiff had bipolar disorder and social
phobia with anger outbursts, impulsivity, assaultive ideation and suicidal ideation.
On October 11, 2012, Carrie E. Danner, MSW, LCSW conducted an initial
psychiatric diagnostic assessment of plaintiff at Hannibal Clinic.
Plaintiff reported that she would only get out of bed to eat or go to the bathroom,
and that she had no interest in daily activities. She said she was afraid she would
hurt others, and felt she could avoid it by living like “a hermit.” (Tr. 645).
reported having nonrestorative sleep.
Ms. Danner noted that plaintiff had high
irritability, hypersensitivity, chronic depression, hopelessness, suicidal thoughts
once a month, overwhelming feelings of guilt for losing her children, and excessive
Ms. Danner diagnosed plaintiff with PTSD, mood disorder, high blood
pressure, problems with financial stressors and unemployment, and chronic mental
illness. She assigned plaintiff a GAF score of 55.
III. The ALJ’s Decision
In the decision issued on September 14, 2012, the ALJ made the following
Plaintiff met the insured status requirements of the Social Security Act
through December 31, 2015.
Plaintiff has not engaged in substantial gainful activity since January
15, 2011, the alleged onset date.
Plaintiff has the following severe impairments:
disorder, social phobia, and myalgias of unknown etiology.
Plaintiff does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Plaintiff has the residual functional capacity (RFC) to perform light
work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except
she is limited to simple, routine, repetitive tasks with no more than
superficial interaction with the public or coworkers.
Plaintiff is unable to perform any past relevant work.
Plaintiff was born on July 28, 1977 and was 33-years old, which is
defined as a younger individual age 18-49, on the alleged disability
Plaintiff has at least a high school education and is able to
communicate in English.
Transferability of job skills is not material to the determination of
disability, because using the Medical-Vocational Rules as a framework
supports a finding that the plaintiff is “not disabled,” whether or not
plaintiff has transferable job skills.
Considering plaintiff’s age, education, work experience, and RFC, there
are jobs that exist in significant numbers in the national economy that
plaintiff can perform.
Plaintiff has not been under a disability as defined in the Social
Security Act from January 15, 2011 through the date of the decision.
The Court must affirm the Commissioner’s decision “if the decision is not
based on legal error and if there is substantial evidence in the record as a whole to
support the conclusion that the claimant was not disabled.”
Long v. Chater, 108
F.3d 185, 187 (8th Cir. 1997). “Substantial evidence is less than a preponderance,
but enough so that a reasonable mind might find it adequate to support the
conclusion.” Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002) (quoting Johnson
v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001)). If, after reviewing the record, the
Court finds it possible to draw two inconsistent positions from the evidence and one
of those positions represents the Commissioner’s findings, the Court must affirm
the decision of the Commissioner. Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir.
2011) (quotations and citation omitted).
To be entitled to disability benefits, a claimant must prove she is unable to
perform any substantial gainful activity due to a medically determinable physical or
mental impairment that would either result in death or which has lasted or could be
expected to last for at least twelve continuous months. 42 U.S.C. § 423(a)(1)(D),
(d)(1)(A); Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009).
Commissioner has established a five-step process for determining whether a person
is disabled. See 20 C.F.R. § 404.1520; Moore v. Astrue, 572 F.3d 520, 523 (8th
“Each step in the disability determination entails a separate analysis
and legal standard.” Lacroix v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006).
Steps one through three require the claimant to prove (1) she is not
currently engaged in substantial gainful activity, (2) she suffers from a severe
impairment, and (3) her disability meets or equals a listed impairment. Pate-Fires,
564 F.3d at 942.
If the claimant does not suffer from a listed impairment or its
equivalent, the Commissioner’s analysis proceeds to steps four and five. Id.
“Prior to step four, the ALJ must assess the claimant’s residual functioning
capacity (‘RFC’), which is the most a claimant can do despite her limitations.”
Moore, 572 F.3d at 523 (citing 20 C.F.R. § 404.1545(a)(1)). “RFC is an
administrative assessment of the extent to which an individual’s medically
determinable impairment(s), including any related symptoms, such as pain, may
cause physical or mental limitations or restrictions that may affect his or her
capacity to do work-related physical and mental activities.” Social Security Ruling
(SSR) 96-8p, 1996 WL 374184, *2. “[A] claimant’s RFC [is] based on all relevant
evidence, including the medical records, observations by treating physicians and
others, and an individual’s own description of his limitations.” Moore, 572 F.3d at
523 (quotation and citation omitted).
In determining a claimant’s RFC, the ALJ must evaluate the claimant’s
Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2002). This evaluation requires that the
ALJ consider “(1) the claimant’s daily activities; (2) the duration, intensity, and
frequency of the pain; (3) the precipitating and aggravating factors; (4) the
restrictions; (6) the claimant’s work history; and (7) the absence of objective
medical evidence to support the claimant’s complaints.”
Buckner v. Astrue, 646
F.3d 549, 558 (8th Cir. 2011) (quotation and citation omitted). “Although ‘an ALJ
may not discount a claimant’s allegations of disabling pain solely because the
objective medical evidence does not fully support them,’ the ALJ may find that
these allegations are not credible ‘if there are inconsistencies in the evidence as a
whole.’” Id. (quoting Goff v. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005)). After
considering the seven factors, the ALJ must make express credibility determinations
and set forth the inconsistencies in the record which caused the ALJ to reject the
claimant’s complaints. Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000); Beckley
v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998).
At step four, the ALJ determines whether a claimant can return to her past
relevant work, “review[ing] [the claimant’s] [RFC] and the physical and mental
demands of the work [claimant has] done in the past.” 20 C.F.R. § 404.1520(e).
The burden at step four remains with the claimant to prove her RFC and establish
that she cannot return to her past relevant work. Moore, 572 F.3d at 523; accord
Dukes v. Barnhart, 436 F.3d 923, 928 (8th Cir. 2006); Vandenboom v. Barnhart,
421 F.3d 745, 750 (8th Cir. 2005).
If the ALJ holds at step four of the process that a claimant cannot return to
past relevant work, the burden shifts at step five to the Commissioner to establish
that the claimant maintains the RFC to perform a significant number of jobs within
the national economy.
Banks v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001).
See also 20 C.F.R. § 404.1520(f).
If the claimant is prevented by her impairment from doing any other work,
the ALJ will find the claimant to be disabled.
Plaintiff argues that the ALJ incorrectly determined that her mental
impairments do not meet the requirements of a Listing; failed to address a conflict
between the testimony of the vocational expert and the opinion of her treating
psychiatrist; and improperly demonstrated bias against or a misunderstanding of
A. Listings 12.04 and 12.08
The ALJ found that plaintiff had the severe mental impairments of major
depressive disorder and social phobia. Plaintiff asserts that the ALJ erred in failing
to find that her impairments meet the requirements for Listing 12.04, pertaining to
affective disorders, and Listing 12.08, pertaining to personality disorders. 20 C.F.R.
§ 404, Subpart P, App. 1.
Each Listing provides specified criteria set forth in sections entitled A, B, and
C, which a claimant must satisfy in various combinations to qualify. Id. Paragraph
A sets forth the criteria to determine the presence of a specific mental disorder. Id.
Paragraphs B and C set forth criteria describing impairment-related functional
limitations; these limitations must be the result of the mental disorder found in
Paragraph A. Id.
Plaintiff challenges the ALJ’s determination regarding the B criteria, which are
identical for both Listing 12.04 and Listing 12.08. To satisfy the B set of criteria for
Listing 12.04 and Listing 12.08, a claimant must show that she suffers at least two
of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.
A “marked” limitation may arise when “several activities or functions are
impaired, or even when only one is impaired, as long as the degree of limitation is
such as to interfere seriously with your ability to function independently,
appropriately, effectively, and on a sustained basis.” Id. The severity standards for
Listing-level impairments are high, because “the listings [for adults] were designed
to operate as a presumption of disability that makes further inquiry unnecessary[.]”
Malott v. Colvin, 4:13-00877-CV-W-NKL, 2014 WL 2759421, *3 (W.D. Mo. June 18,
2014) (quoting Sullivan v. Zebley, 493 U.S. 521, 532 (1990) (alterations in
It is the plaintiff’s burden to show that she meets all of the specified
criteria of a Listing. Id. (citing Boettcher v. Astrue, 652 F.3d 860, 863-64 (8th Cir.
2011); Carlson v. Astrue, 604 F.3d 589, 593 (8th Cir. 2010)).
The ALJ determined that plaintiff had mild restrictions of the activities of daily
Plaintiff was able to perform housework and yard work, cook, drive, go
shopping, and care for her own grooming and hygiene.
To pass time
during the day, she worked on her cross-stitching, crocheted, and read. (Tr. 56).
While she reported neglecting her grooming and hygiene due to her depression, all
of her treatment records report she appeared adequately groomed with good
The consulting psychologist, Dr. MacDonald, reported that plaintiff told
her she woke up between 9:00 A.M. and 10:00 A.M. each morning to feed her fish,
uncover her birds and give them fresh water. (Tr. 357). She played with her son
in the afternoon, sometimes babysat, and enjoyed paint-by-numbers, listening to
music, and playing games on the computer.
While plaintiff testified that she
sometimes does not get out of bed for days, her reported activities suggest that her
ability to function on a daily basis was not severely impaired. Substantial evidence
thus supports the ALJ’s finding that plaintiff did not met her burden to establish she
had marked difficulties in the activities of daily living due to a mental impairment.
The ALJ found that plaintiff had moderate difficulties with concentration,
persistence, and pace. Plaintiff alleges that the ALJ ignored her testimony that her
PTSD causes “daydreams” almost daily concerning the periods in her life in which
she witnessed a homicide and incidents in which she was physically abused. The
ALJ noted that there was evidence suggesting plaintiff has interference with
concentration, persistence, and pace due to her depression and occasional,
intermittent PTSD symptoms.
He also noted, however, that plaintiff
reported an ability to engage in a number of activities that required sustained
periods of attention and concentration, such as crocheting, completing paint-bynumbers, caring for her birds and fish, cross-stitching, reading, watching television,
and playing games on the computer. The ALJ’s determination, thus, was supported
by substantial evidence in the record.
The ALJ found that plaintiff had moderate restrictions in the area of social
functioning, citing plaintiff’s testimony that she stayed home most of the time and
lived like a hermit, but was able to go shopping.
She disliked being
around other people, but interacted with her son and son’s father at home and also
sometimes babysat. (Tr. 357). The evidence as a whole supports the ALJ’s finding
of moderate restrictions on plaintiff’s ability to socially function.
Finally, the ALJ found no episodes of decompensation.
some past suicide attempts, but these occurred six or seven years prior to her
alleged onset date. Accordingly, the ALJ properly determined that plaintiff’s mental
impairments did not meet the criteria of Listings 12.04 and 12.08.
B. Testimony of the Vocational Expert and the Opinion of Dr. Joseph L.
Plaintiff argues that the ALJ gave Dr. Spalding’s medical source statement
great weight, characterizing it as well-reasoned and well-explained, but failed to
apply Dr. Spalding’s statement to his RFC determination.
A claimant’s RFC is “the most a claimant can still do despite his or her
physical or mental limitations.”
Martise v. Astrue, 641 F.3d 909, 923 (8th Cir.
2011) (internal quotations, alteration and citations omitted).
“The ALJ bears the
primary responsibility for determining a claimant’s RFC and because RFC is a
medical question, some medical evidence must support the determination of the
Id. (citation omitted).
“However, the burden of persuasion to
prove disability and demonstrate RFC remains on the claimant.” Id. Even though
the RFC assessment draws from medical sources for support, it is ultimately an
administrative determination reserved to the Commissioner.
Cox v. Astrue, 495
F.3d 614, 619 (8th Cir. 2007) (citing 20 C.F.R. §§ 416.927(e)(2), 416.946 (2006)).
“Because the social security disability hearing is non-adversarial, however, the ALJ’s
duty to develop the record exists independent of the claimant’s burden in this
case.” Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
The ALJ concluded that plaintiff had the RFC to perform light work, but was
limited to simple, routine, repetitive tasks with no more than superficial interaction
with the public or coworkers.
In determining plaintiff’s RFC, the ALJ
found that her statements regarding the intensity, persistence and limiting effects
of her symptoms were not credible. (Tr. 25). In reaching this conclusion, the ALJ
found that plaintiff’s daily activities were consistent with the ability to perform light
work. (Tr. 23). She testified that she drove, shopped, mowed the lawn and did not
have problems completing housework or bathing. See Medhaug v. Astrue, 578 F.3d
805, 817 (8th Cir. 2009) (“[A]cts such as cooking, vacuuming, washing dishes,
doing laundry, shopping, driving, and walking, are inconsistent with subjective
complaints of disabling pain.”). She also engaged in hobbies such as crocheting,
cross-stitching, caring for her birds and fish, reading, listening to music, and
playing with her son.
The ALJ noted that plaintiff had held a number of jobs despite her
impairments. (Tr. 25). She had worked for two-and-a-half years at General Mills
immediately preceding the alleged onset date of her disability. She also had been
able to obtain a new job as a nurse’s aide in December 2010.
records suggested that she had significant improvement in her mental health
symptoms when she consistently used prescribed medications.
See Goff v.
Barnhart, 421 F.3d 785, 792 (8th Cir. 2005) (finding that plaintiff’s part-time
employment for three years after her strokes, “coupled with the absence of
evidence of significant deterioration in her condition, demonstrate the impairments
are not disabling in the present”).
Furthermore, the ALJ noted that none of her complaints of aches, pains or
other physical symptoms were substantiated by objective medical testing.
Gonzales v. Barnhart, 465 F.3d 890, 895 (8th Cir. 2006) (“[A]n ALJ is entitled to
make a factual determination that a claimant’s subjective pain complaints are not
credible in light of objective medical evidence to the contrary.”).
plaintiff testified that she suffered from sciatica and bulging discs in her neck, but
MRIs showed no disc bulges and EMG and nerve conduction studies were negative.
The ALJ also noted speculation in the medical records that plaintiff’s
physical complaints were a manifestation of her mental illness. The ALJ’s credibility
determination, therefore, was supported by good reasons and substantial evidence
and thus receives deference. Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006).
In considering the medical evidence in reaching a RFC determination, the ALJ
gave great weight to the opinions of plaintiff’s treating psychiatrist, Dr. Spalding,
and consultative examiner, Dr. MacDonald. (Tr. 26-27). Dr. Spalding opined that
plaintiff had no restrictions understanding, remembering, and carrying out simple
instructions or making simple work-related decisions. (Tr. 618). Dr. Spalding also
found that plaintiff had moderate restrictions on making judgments on complex
work-related decisions, and interacting appropriately with the public, supervisors,
Dr. Spalding based his findings on plaintiff’s
bipolar disorder and social phobia with anger outbursts, impulsivity, assaultive
ideation, and suicidal ideation.
Similarly, Dr. MacDonald found that
plaintiff could sustain a 40-hour workweek on a continuous basis if the work was
simple and not detailed. (Tr. 355). Dr. MacDonald also opined that plaintiff’s major
depressive order and borderline personality disorder would affect her ability to
interact socially and adapt to her environment. The ALJ found both opinions wellreasoned and consistent with the doctors’ treatment records and evaluations.
Following the ALJ’s RFC assessment and conclusion that the plaintiff could
not perform her past relevant work, which involved medium exertion and semiskilled labor, the burden shifted to the Commissioner to show that plaintiff could
perform other work existing in a significant number of jobs within the national
economy. At this step of review, the ALJ questioned a vocational expert regarding
a hypothetical claimant of plaintiff’s age, education, work experience and RFC. The
vocational expert testified that such an individual could perform the requirements of
occupations such as housekeeping, machine tending, and manual work. (Tr. 78).
In response to a question from plaintiff’s attorney as to what percentage of the time
an individual could be off task and still be considered employable, the vocational
expert replied “no more than 10 percent of the time.” (Tr. 79-80).
assessment of “moderate” means “the impairment will interfere with the individual’s
ability to perform work-related activities twenty-to-thirty percent of the time.” (Tr.
618). Based on the vocational expert’s testimony that an individual could be offtask no more than 10% of the time to be considered employable, plaintiff argues
that she was therefore unemployable. Dr. Spalding’s assessment, however, did not
conclusively opine as to how frequently plaintiff would be off-task in any particular
job. His finding that plaintiff had moderate restrictions related only to her general
ability to make complex work decisions and interact appropriately in work
environments with others. This finding is consistent with the ALJ’s conclusion that
plaintiff could perform light work with simple, routine tasks and no more than
superficial interaction with others.
Dr. Spalding’s opinion is unrelated to the
vocational expert’s determination of other work plaintiff would be capable of
performing and her ability to stay on-task with the requirements of those jobs in
the national economy. Plaintiff has conflated these two percentages, despite their
differing roles at different stages in the ALJ’s overall determination. Based on the
plaintiff’s RFC and the vocational expert’s testimony, therefore, the ALJ properly
determined plaintiff could perform other work that existed in significant numbers in
the national economy.
C. The ALJ’s Conduct at the Hearing
Plaintiff also argues that the ALJ erred by demonstrating a bias against or
complete misunderstanding of mental illness. “ALJs and other similar quasi-judicial
administrative officers are presumed to be unbiased.” Perkins v. Astrue, 648 F.3d
892, 902 (8th Cir. 2011) (quoting Rollins v. Massanari, 261 F.3d 853, 857 (9th Cir.
2001)); see also Partee v. Astrue, 638 F.3d 860, 865 (8th Cir. 2011) (“There is a
presumption of honesty and integrity in those serving as adjudicators.”) (internal
quotations omitted). A claimant bears the burden of producing sufficient evidence
to overcome this presumption. Perkins, 648 F.3d at 902.
At the hearing, the ALJ elicited testimony regarding the specific reasons
plaintiff thought she could not return to each past job she held. (Tr. 67-70). With
these questions, the ALJ was fulfilling his obligation to determine whether plaintiff
could engage in any past relevant work.
20 C.F.R. § 404.1520(e).
ultimately concluded she could not, in light of her impairments; therefore, this line
of questioning does not demonstrate a bias against mental illness.
At the hearing, the ALJ also questioned plaintiff about Dr. Nichols’ medical
notes from a visit to Hannibal Clinic in December 2011. During the visit, plaintiff
was asked why she felt she needed to get on disability and she responded that she
just “can’t deal with it.” (Tr. 609). The ALJ asked plaintiff what she meant by that,
and suggested that her goal should be to return to work if possible.
According to the doctor’s notes from the visit, Dr. Nichols opined that her physical
complaints were symptoms of her mental illness, and she “need[ed] to go ahead
and just try to function in her job.”
Rather than demonstrating a
misunderstanding of mental illness, the ALJ’s questions and comments suggest that
he was trying to develop a full record by considering all of the evidence before him.
The ALJ noted that he would not exclusively rely upon Dr. Nichols’ report following
plaintiff’s attorney’s interjection, (Tr. 73), and referred to the report in his opinion
as “some speculation in the record.” (Tr. 27). To demonstrate bias, a claimant is
“required to show that the ALJ’s behavior, in the context of the whole case, was so
extreme as to display clear inability to render fair judgment.” Perkins, 648 F.3d at
903 (internal quotations omitted). The ALJ’s conduct at the hearing did not rise to
For the reasons discussed above, the Court finds that the Commissioner’s
decision is supported by substantial evidence in the record as a whole.
IT IS HEREBY ORDERED that the decision of the Commissioner is
A judgment in accordance with this Memorandum and Order will be entered
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 3rd day of March, 2015.
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