Dunton v. Commissioner of Social Security

Filing 22

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED and that this case is DISMISSED. An appropriate Order of Dismissal shall accompany this Memorandum and Order. Signed by Magistrate Judge Thomas C. Mummert, III on January 28, 2015. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
CRYSTAL DUNTON,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case number 2:14cv0033 TCM

MEMORANDUM AND ORDER
This action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the final
decision of Carolyn W. Colvin, the Acting Commissioner of Social Security (Commissioner),
denying the application of Crystal Dunton (Plaintiff) for supplemental security income (SSI)
under Title XVI of the Social Security Act (the Act), 42 U.S.C. § 1381-1383b, is before the
undersigned by written consent of the parties. See 28 U.S.C § 636(c).
Procedural History
Plaintiff applied for SSI in September 2010, alleging she was disabled as of August
16, 2010, because of serotonergic syndrome,1 fibromyalgia, migraines, depression,

Serotonergic syndrome, or serotonin syndrome, occurs when two drugs affecting the body's
level of serotonin are taken together, causing too much serotonin to be released or to remain in the
brain area. Serotonin Syndrome, http://www/nlm.nih.gov/medlineplus/ency/article/007272.htm (last
visited Jan. 7, 2015). Examples of when it can occur are when someone is taking migraine medicines
and antidepressants. Id. With treatment, symptoms usually go away in less than twenty-four hours.
Id.
1

osteoarthritis, pain, fatigue, and panic attacks. (R.2 at 77-85, 135.) Her application was
denied initially and after a July 2012 hearing before Administrative Law Judge (ALJ) Stephen
M. Hanekamp. (Id. at 12-25, 32-38, 297-331.) After reviewing additional evidence, the
Appeals Council denied Plaintiff's request for review, effectively adopting the ALJ's decision
as the final decision of the Commissioner. (Id. at 4-7.)
Testimony Before the ALJ
Plaintiff, represented by counsel, and Bob Hammond testified at the administrative
hearing.
Plaintiff, thirty-five years old at the time of the hearing, testified that she is married,
has two daughters, ages nine and twelve, and lives with them and her husband, who is
disabled by migraines. (Id. at 302-03.) She "graduated tenth grade."3 (Id. at 302.) She is 5
feet 7 inches tall and weighs 255 pounds. (Id. at 306-07.) She is right-handed. (Id. at 307.)
She has had Medicaid since August 2010. (Id. at 303.)
Her past jobs include working as an editor and office manager for a local newspaper.
(Id. at 304.) She quit this job after nine months when she found out she was pregnant and the
pregnancy was high-risk. (Id.) She was fired from her job as a stock person at a Fast Stop
store after "just a couple of months" when she left during her shift because her husband was
in a car accident. (Id.) She worked at Casey's as a cashier and then an assistant manager.

2

References to "R." are to the administrative record filed by the Commissioner with her

answer.
This is clearly an error. She disclosed in her Disability Report that she completed the twelfth
grade. (See id. at 136.)
3

-2-

(Id. at 305.) This job ended after she had a disagreement with another employer and the
manager took that employee's word over hers. (Id.) She worked for four to five months as
a cashier at a grocer's, but was fired when her daughters sold Girl Scout cookies at work. (Id.
at 305-06.) And, she quit a job at Wal-Mart after four months because she could not afford
the gas to drive back and forth. (Id. at 306.)
Asked how her fibromyalgia affects her, Plaintiff explained that it causes her
widespread pain, constant headaches, "extremely sensitive skin," and fatigue. (Id. at 307.)
Her symptoms are constant, but are sometimes worse than other times. (Id.) In a typical
week, she has approximately three "good" days; the rest are "bad." (Id. at 307-08.) On a bad
day, she does not want to move and wants to sleep more. (Id. at 308.) She will sleep three
to four hours during the day. (Id.) She will also spend another four to five hours lying down.
(Id.) She has a constant, mild headache that occasionally gets worse and is a four or five on
the pain scale. (Id. at 309.) In addition to these headaches, she has migraines three to four
times a week. (Id.) These cause her extreme pain and, sometimes, nausea. (Id.) When she
has a migraine, she turns off the lights, shuts the door, and lies down. (Id.) The migraine
medications she takes help if there is no nausea. (Id. at 310.) It takes thirty to forty-five
minutes for relief. (Id.) Once every few months, the migraines cause her to be dizzy, feel
light-headed, and forget what she is doing. (Id. at 310-11.) These atypical migraines last
approximately fifteen minutes. (Id. at 311.)
Also, Plaintiff has ringing in her ears, making it hard sometimes for her to hear what
is being said. (Id.) The fibromyalgia hurts from the top of her head to her hands and down
-3-

her back to her calves. (Id. at 311-12, 312-13.) Three to four times a week, it causes her
hands to cramp and lock for three to twenty minutes. (Id. at 312.) This has been happening
for the four or five past years, but is becoming more frequent. (Id.) And, Plaintiff is
becoming sensitive to more and more foods. (Id. at 313.) It is suspected that she might have
irritable bowel syndrome. (Id.) Her energy level is very low. (Id.) She has been diagnosed
with restless leg syndrome; this causes her difficulties when trying to go to sleep. (Id. at 314.)
Additionally, Plaintiff suffers from depression. (Id. at 315.) She was in counseling,
but could not afford to continue after the community health center closed. (Id.) Because of
the depression, she cries easily and is often sad. (Id.) She has had these crying spells for
approximately twenty years. (Id. at 316.) She has several anxiety attacks a day and has panic
attacks that cause her heart to race. (Id. at 316-17.) The latter occur once a week, last
between forty-five minutes to two hours, and make her feel safe only when at home with her
family. (Id. at 317.)
Plaintiff's medications cause her to be tired. (Id. at 318.) The oxycodone she takes
for pain causes her to be "very awake and talkative." (Id.)
Plaintiff's husband and children do most of the housework. (Id.) "With trouble," she
goes shopping. (Id.) She has to lean on the cart, have her children get the items on the
bottom shelves, and take breaks. (Id. at 319.) She never shops on bad days. (Id.) She can
only drive for approximately thirty minutes before starting to hurt and getting tired. (Id.) On
bad days, she watches television but does not do anything else, including getting dressed or

-4-

bathing. (Id. at 319-20.) On good days, she gets dressed, puts her hair in a ponytail, watches
television, and, sometimes, plays board games with her children. (Id. at 320.)
Plaintiff can comfortably sit for thirty minutes and stand for ten minutes before having
to change positions. (Id. at 320.) She cannot walk longer than twenty minutes before having
to sit or lie down. (Id.) She cannot lift anything heavier than ten pounds. (Id.) She can lift
a gallon of milk with one hand. (Id. at 321.)
Mr. Hammond, testifying without objection as a vocational expert (VE), was asked to
assume a hypothetical individual of Plaintiff's age, twelfth-grade education,4 and work
experience who is limited to lifting twenty pounds occasionally and ten pounds frequently and
who needs to alternate every hour for a minute or two between sitting and standing. (Id. at
323.) This claimant can stand and walk for a total of six hours out of eight, but cannot climb
ladders, ropes, or scaffolds and can only occasionally balance, kneel, crouch, crawl, stoop,
and climb ramps and stairs. (Id. at 323-24.) She cannot be exposed on a prolonged basis to
temperature extremes, on a concentrated basis to pulmonary irritants, and on any basis to
whole-body vibrations. (Id. at 324.) She can perform only simple, routine tasks with
superficial interaction with co-workers, supervisors, and the general public. (Id.)
The VE testified that this claimant cannot perform any of Plaintiff's past relevant work
but can perform other jobs. (Id.) Specifically, she can work as an assembler II or bench
assembler. (Id.) At the sedentary level, the claimant can perform work as an assembler of
eyeware, a semi-conductor bonder, and a circuit board screener. (Id.)

4

See note 3, supra.
-5-

If this hypothetical claimant can sit for thirty minutes, can stand for ten minutes, and
has to alter positions often, the light positions will be eliminated but not the sedentary ones.
(Id. at 326.) If this person has bilateral manipulative restrictions in that she can only
occasionally reach, handle, push, and pull, the positions of assembler and bonder will be
eliminated; the screener position will not be. (Id. at 326-27.)
The VE further testified that an assembler can be off-task for approximately five to
six percent of the time. (Id. at 328.) After a probationary period, a worker cannot miss more
than one and one-half days of work a month. (Id.)
The VE stated that his testimony was consistent with the Dictionary of Occupational
Titles (DOT) and with the Selected Characteristics of Occupations. (Id. at 328-29.)
Medical and Other Records Before the ALJ
The documentary record before the ALJ included forms completed as part of the
application process, documents generated pursuant to Plaintiff's application, records from
health care providers, and assessments of her physical and mental abilities.
When applying for SSI, Plaintiff completed a Disability Report, disclosing that she had
stopped working on January 21, 2009, for reasons other than her impairments. (Id. at 136.)
Specifically, she was "let go." (Id.) Because of her impairments, she was unable to work as
of August 16, 2010. (Id.) Her current medications include gabapentin, ibuprofen, Tylenol,
and Lisinopril. (Id. at 138.) The Lisinopril is for high blood pressure; the other medications
are for pain. (Id.)

-6-

Plaintiff also completed a Function Report. (Id. at 102-09.) Asked to describe what
she does from waking up to going to bed at night, Plaintiff explained that she wakes up her
daughters, reminds them of their school supplies, hugs them goodbye, lies down, takes a nap,
wakes up and sits on the couch, watches television, lies down on the couch and watches
television, greets her daughters when they get off the bus, lies down on the couch and
watches television, and goes to bed. (Id. at 102.) She takes ibuprofen and Tylenol every four
hours. (Id.) Asked if she takes care of anyone else, she replied that she watches her children.
(Id. at 103.) Her husband shops, cooks, and, when he can, cleans. (Id.) When he cannot,
their oldest daughter cooks and cleans. (Id.) Their youngest daughter feeds their pets and
cleans. (Id.) Because of her pain, Plaintiff wakes up throughout the night. (Id.) She has to
sit down when getting dressed or taking a shower; her husband brushes her hair. (Id.) Once
a month, she prepares a meal by baking frozen foods. (Id. at 104.) She goes outside once or
twice a week, but does not drive because she gets sleepy. (Id. at 105.) Once a month, she
shops for groceries. (Id.) This takes two to three hours because she has to take a lot of
breaks. (Id.) Her only hobby is watching television. (Id. at 106.) She used to read and do
crafts, but can no longer because of the pain. (Id.) She attends Girl Scout meetings and visits
with friends while sitting down. (Id.) Her impairments adversely affect her abilities to lift,
squat, bend, stand, reach, walk, sit, kneel, talk, see, remember, concentrate, climb stairs,
complete tasks, use her hands, and get along with others. (Id. at 107.) She cannot walk
farther than ten feet before having to stop and rest for at least ten minutes. (Id.) She cannot
lift anything heavier than one pound. (Id.) If she does not have a migraine, she can follow
-7-

written or spoken instructions. (Id.) She gets along well with authority figures, but has been
fired because people like to gossip about her. (Id. at 108.) She does not handle stress or
changes in routine well. (Id.) She has a panic attack if she is away from home for longer
than three hours. (Id.) She wears glasses and, when she has to walk or when her knees, hips,
or back hurt, she uses a cane and wears a brace. (Id.)
Plaintiff's husband completed a Function Report on her behalf. (Id. at 113-20.) His
answers generally mirror hers. (Id.)
A list of Plaintiff's annual earnings indicates sporadic, low earnings. (Id. at 88.)
Specifically, she had annual earnings of $14595 in 1994; $5,235 in 1995; $1558 in 1997;
$8765 in 1999; $3615 in 2001; $7271 in 2002; $15,492 in 2007; $13,639 in 2008; and $451
in 2009. (Id. at 88.) The job she had held the longest was as cashier. (Id. at 95.)
The relevant medical records before the ALJ are summarized below in chronological
order beginning with Plaintiff's visit to Wendell A. Nickerson, D.O., in March 2007 for
complaints of a persistent cough and headaches since the previous January. (Id. at 170.) She
was prescribed antibiotics, an anti-inflammatory medication, and an antihistamine. (Id.)
Plaintiff returned two weeks later. (Id. at 169.) Her cough was better; her ears were stopped
up. (Id.) Her diagnoses included depression and fibromyalgia. (Id.) It was noted that she
was a smoker. (Id.) Elavil (a brand form of amitriptyline), an antidepressant, and Prozac, a
selective serotonin reuptake inhibitor (SSRI) antidepressant, were prescribed in addition to
the anti-inflammatory medication previously prescribed. (Id.)

5

All amounts are rounded to the nearest dollar.
-8-

In July 2009, Plaintiff returned to Dr. Nickerson with a complaint of a swollen face
and bad teeth. (Id. at 168.) He noted that she had multiple cavities and diagnosed a dental
abscess. (Id.) Fibromyalgia and depression were not included in the list of diagnoses. (Id.)
On August 16, 2010, Plaintiff saw Dr. Nickerson for blood pressure problems,
agitation, and confusion. (Id. at 167.) Her husband reported that she often repeated herself.
(Id.) Also, her muscles felt sore. (Id.) She had been taking citalopram for the past month.
(Id.) She was told to stop taking it and the amitriptyline and was diagnosed with serotonergic
syndrome. (Id.)
One week later, she informed Dr. Nickerson that, although she was no longer agitated,
she was still having mood swings. (Id. at 166.) The antihistamine, Benadryl, previously
prescribed was not helping. (Id.) The night before she had felt like she was having a heart
attack. (Id.) On examination, she had pain, but no swelling, in her left knee. (Id.) Her
speech was slurred. (Id.) She was diagnosed with serotonergic syndrome, behavior disorder,
and osteoarthritis. (Id.) The dosage of Benadryl was reduced; gabapentin, used in the
treatment of nerve pain, was prescribed. (Id.)
In September, Plaintiff saw Dr. Nickerson because her blood pressure would not stay
down. (Id. at 165.) She was still taking the gabapentin, but not the Benadryl. (Id.) Dr.
Nickerson noted that Plaintiff described "atypical symptoms," including atypical migraines.
(Id.) Gabapentin was continued; an antibiotic, Keflex, and two medications for high blood
pressure, Hyzaar and Lisinopril, were also prescribed. (Id.) Plaintiff was to return in one
month. (Id.)
-9-

On October 1, Dr. Nickerson noted that Plaintiff had not filled her gabapentin
prescription. (Id.) On examination, she had a regular heart rate and rhythm, tenderness in
her neck, and wheezing and crackling sounds in her lungs. (Id.) Plaintiff reported she was
suffering from insomnia, fatigue, and pins and needles in her arms; she was "very teary."
(Id.) Dr. Nickerson diagnosed Plaintiff with hypertension, depression, fibromyalgia, tobacco
abuse, and dyspareunia (painful intercourse). (Id.) Tylenol #3 6 was prescribed. (Id.)
Plaintiff was to return in one month. (Id.)
On October 14, Plaintiff sought mental health treatment at the Community Health
Center (CHC). (Id. at 143-49, 198-99, 223-28, 234.) She reported on a Biopsychosocial
History form that she had a disability application pending and needed help dealing with
"things." (Id. at 143.) Her medical problems included serotonin syndrome,7 fibromyalgia,
osteoarthritis, and migraines. (Id.) Her only medication was for blood pressure. (Id.) She
was in constant pain. (Id. at 144.) She had been fired in 2008 from her last job, that of a
cashier. (Id.) Her hobbies include watching television and the Girl Scouts. (Id. at 145.) Her
strategy for dealing with life's problems is to become calm and talk. (Id. at 146.) Katie
Douglas, L.P.C.,8 described Plaintiff as cooperative, tearful, and with fair eye contact and a
congruent mood and affect. (Id. at 149.) Plaintiff reported that her serotonin syndrome did

Tylenol #3 is Tylenol, acetaminophen, with codeine, an opioid pain medication, prescribed
to relieve moderate to severe pain.
See Tylenol with Codeine #3,
http://www.drugs.com/mtm/tylenol-with-codeine-3.html (last visited Jan. 26, 2015).
6

7

See note 1, supra.

8

Licensed Professional Counselor.
- 10 -

not allow her to take the antidepressants she needed. (Id.) She was having financial and
occupational difficulties, but had a strong support system. (Id.) A plan was to be developed
at the next session. (Id.) Plaintiff was diagnosed with major depressive disorder, recurrent,
severe, non-psychotic, and a Global Assessment of Functioning (GAF) of 45.9 (Id. at 148.)
The next week, Plaintiff saw Ms. Douglas and was described as being pleasant and
cooperative and having a good eye contact and a bright affect. (Id. at 150, 233.) She reported
that her mood was "much better" that day as she was having a "great day" and trying to do
a lot. (Id.) She had a hard time limiting herself when she felt good. (Id.) Under the heading
of "Plan," the notes read that the current plan was to be continued. (Id.)
The following week, on October 28, Plaintiff told Ms. Douglas that she was having
an average day. (Id. at 151, 232.) No new plan was developed. (Id.)
When seeing Dr. Nickerson on November 10, Plaintiff reported that the Tylenol #3
was not working. (Id. at 163.) She was having bad gas, nausea, heartburn, and diarrhea.
(Id.) A "disability dr." wanted an x-ray of her knees and back. (Id.) On examination, she had
mild to moderate tenderness on palpation of her upper and lower extremities; mild crepitus,

"According to the Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. Text
Revision 2000) [DSM-IV-TR], the [GAF] is used to report 'the clinician's judgment of the
individual's overall level of functioning,'"" Hudson v. Barnhart, 345 F.3d 661, 663 n.2 (8th Cir.
2003), and consists of a number between zero and 100 to reflect that judgment, Hurd v. Astrue, 621
F.3d 734, 737 (8th Cir. 2010). A GAF score between 41 and 50 is indicative of "[s]erious symptoms
(e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment
in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." DSM-IV-TR
at 34 (emphasis omitted).
9

- 11 -

or crackling, in her lungs when coughing; and positive Phalen's and Tinel's sign.10 (Id.) She
was diagnosed with hypertension, depression, dyspareunia, fibromyalgia, tobacco abuse, and
carpal tunnel syndrome. (Id.) Hydrocodone and Lasix (for hypertension) were prescribed
in addition to the Lisinopril. (Id.)
At her December visit to Dr. Nickerson Plaintiff complained of a cough present since
August. (Id. at 262.) She was diagnosed with sinusitis and bronchitis and prescribed an
antibiotic, erythromycin, and an antihistamine, Phenergan with codeine. (Id.)
In January 2011, Plaintiff reported to Dr. Nickerson that her cough was not much
better and that she had not been able to fill her blood pressure medication that month due to
the cost. (Id. at 261.) On examination, her voice was raspy and hoarse. (Id.) Dr. Nickerson
noted that she had crepitus, or popping, in her right knee. (Id.) Her diagnoses included
chronic cough/bronchitis, anxiety disorder, fibromyalgia, tobacco abuse, and uncontrolled
hypertension. (Id.)
Plaintiff returned to Dr. Nickerson on February 9, explaining that she was now on
Medicaid and wanted to pursue treatment for her various ailments. (Id. at 260.) She had just
started taking her blood pressure medication again that morning. (Id.) He noted that
Wellbutrin was the only medication she could use for her depression and fibromyalgia due
to her history of serotonergic syndrome. (Id.) His diagnoses included chronic allergies,

Tinel's and Phalen's tests are used in the diagnosis of carpal tunnel syndrome. See Jonathan
Cluett, M.D., Carpal Tunnel Syndrome http://orthopedics.about.com/cs/carpaltunnel/a/carpaltunnel
(last visited Jan. 8, 2015). A Tinel's sign is present when tingling in the fingers is made worse by
tapping the median nerve along its course in the wrist. Id. A Phalen's sign is present when pushing
the back of the hands together causes the complained-of symptoms. Id.
10

- 12 -

endometriosis, fibromyalgia, depression, fatigue, and history of hyperlipidemnia. (Id.) In
addition to the Wellbutrin, Dr. Nickerson prescribed gabapentin, Singulair (to prevent asthma
attacks), and hydrocodone. (Id.) The results of various lab tests were discussed with Plaintiff
the following week. (Id. at 259.) Dr. Nickerson noted that she had "flight of ideas and speed
of speech," but was generally okay. (Id.)
On March 24, Plaintiff reported to Dr. Nickerson that her pain medications were not
helping.

(Id. at 258.)

She had pain in her sacral and lumbar spine with possible

radiculopathy. (Id.) She also was having migraines twice a week. (Id.) These were
described as being "new onset." (Id.) Examination findings were within normal limits. (Id.)
Back pain and migraines were added to her previous diagnoses; Topamax, the use of which
had resolved her husband's migraines,11 was added to her prescriptions. (Id.) X-rays were
to be taken of her spine, pelvis, and hips. (Id.) Lumbar spine x-rays revealed no acute
fractures and minimal retrolisthesis of L3 on L4 and L4 on L5. (Id. at 270.) An x-ray of her
pelvis revealed no acute bony abnormalities. (Id. at 271.) A magnetic resonance imaging
(MRI) was recommended if avascular necrosis was suspected. (Id.) X-rays of her hips also
showed no acute bony abnormalities. (Id. at 272.) The same recommendation was made.
(Id.)
Plaintiff saw Dr. Nickerson on March 28 for a sore throat and cough. (Id. at 257.) She
was diagnosed with bronchitis and pharyngitis and prescribed antibiotics. (Id.)

11

See page 2, supra.
- 13 -

Four days later, she returned to discuss the results of her x-rays. (Id. at 256.) She was
referred to a gynecologist for a consultation for her pelvic pain. (Id.)
Three days later, on April 4, she again saw Dr. Nickerson, reporting that the
Wellbutrin was not helping as much with her depression as it had when she first started taking
it. (Id. at 255.) The dosage was increased. (Id.) She returned on April 29 for a recheck,
reporting that she felt better and was not having any side effects of the Wellbutrin. (Id. at
254.) Examination findings, including of extremities, were within normal limits with the
exception that Plaintiff was having tingling in her legs and pain in her back that was
intermittently debilitating. (Id.) She had had a bad bout of fibromyalgia a few days earlier
and had been sleeping a lot for the past month. (Id.) The gynecologist she had consulted
wanted her to see a gastrointestinal (GI) specialist. (Id.)

Plaintiff was continued on

Wellbutrin and prescribed Phenergan. (Id.)
Eight days later, on May 7, Plaintiff returned with complaints of severe back pain,
right flank pain, and urinary difficulties. (Id. at 253.) Also, she was concerned that her
husband was unable to leave the house due to his depression. (Id.) She was diagnosed with
dysuria (difficulty urinating), fibromyalgia, a probable urinary tract infection, and situational
anxiety/depression. (Id.) She was prescribed an antibiotic, Cipro, and a nonsteroidal antiinflammatory drug (NSAID), Toradol. (Id.)
Ten days later, Plaintiff consulted Dr. Nickerson for her intermittent panic attacks. (Id.
at 252.) She was tearful. (Id.) Her urinary tract infection had cleared, and Toradol was
helping her back pain. (Id.) She was diagnosed with anxiety behavior disorder, fibromyalgia,
- 14 -

chronic back pain, and osteoarthritis/degenerative joint disease. (Id.) Another dosage of
Wellbutrin was prescribed, as was Xanax, used to treat anxiety disorders, and Naprosyn, a
NSAID. (Id.)
Plaintiff consulted Dr. Nickerson on June 3 for concerns that her right big toe was
infected after sustaining a cut when an oxygen tank fell on it. (Id. at 251.)
On June 15, Plaintiff complained to Dr. Nickerson about constant pain in the right side
of her back for the past several days. (Id. at 250.) On examination, Plaintiff was tender
throughout her abdomen. (Id.) The GI consultant had ordered a computed tomography (CT)
scan of her abdomen and an ultrasound of her pelvis, but she was unable to afford to make
the trip to have either performed. (Id.) Dr. Nickerson noted that Plaintiff was taking only
one-half of her Xanax dosage at night and consequently still had a month's supply of the
medication. (Id.) He ordered an ultrasound of her pelvis and prescribed Toradol. (Id.) The
ultrasound was unremarkable, with the exception of her left ovary not being visible. (Id. at
269, 276.)
When seen by Dr. Nickerson on July 11 to discuss the test results, Plaintiff had
generalized tenderness in her abdomen, which was very severe on the left side. (Id. at 249.)
She was tearful and guarded. (Id.) She reported that the ultrasound had been painful. (Id.)
Dr. Nickerson ordered a CT scan of her abdomen and pelvis and prescribed her hydrocodone
and ibuprofen. (Id.) The CT scans were unremarkable. (Id. at 268, 274.)
Plaintiff returned to CHC on July 18 and was seen by Janet Hultgrew, M.S.W.,
L.C.S.W. (Id. at 211-12, 229-31.) Plaintiff marked on a Family Health Survey that, during
- 15 -

the past month, she had had headaches, dizziness, shortness of breath, digestive problems,
trouble sleeping, fatigue, and pain in her stomach, back, extremities, and chest. (Id. at 211.)
She had also experienced feelings of anhedonia, being out of control, anxiety, nerves,
depression or hopelessness, and worries about a variety of things. (Id.) She rated her overall
health as "fair," one step above "poor." (Id.) She rated her relationship with her partner as
fair and with peers and other family members as good. (Id. at 212.) Plaintiff reported that
she was upset because her marriage was in trouble due to various stresses, including financial.
(Id. at 229.) She was filing for disability. (Id.) Her husband had been receiving disability
since 2008 because of steroid psychosis, resulting in migraine-caused seizures and "motor
spells." (Id. at 230.) Plaintiff's diagnoses were fibromyalgia, depression, and serotonin
syndrome. (Id.) She was diagnosed with major depressive disorder, recurrent, mild. (Id. at
194.)
Plaintiff returned to Dr. Nickerson the next day, explaining that she was seeing a
counselor but her husband was refusing to see a marriage counselor. (Id. at 248.) Her
hypertension was poorly controlled. (Id.) She was prescribed Wellbutrin and meloxicam (a
NSAID to replace the Naprosyn, which was causing Plaintiff to be nauseous) in addition to
the Xanax. (Id.)
In July, Plaintiff saw Dr. Nickerson for complaints of pain in her mid-back and neck.
(Id. at 247.) There are no examination findings; his diagnosis and treatment plan notes are
illegible. (Id.)

- 16 -

In August, Plaintiff reported to Dr. Nickerson that her depression was getting worse
and that the counseling clinic she had been attending had closed. (Id. at 246.) She was
tearful. (Id.) Although she had suicidal thoughts, she would not act on them because of her
daughters. (Id.) She had not been taking Xanax for the past three weeks and was going to
resume taking it. (Id.)
Plaintiff saw Dr. Nickerson again on September 15 for worsening knee pain and
allergies. (Id. at 245.) Her inhaler had expired. (Id.) Dr. Nickerson told her to reduce her
smoking to six cigarettes a day. (Id.) He noted that the arthritis medications' side effects
were water retention and an increase in blood pressure. (Id.) He diagnosed Plaintiff with
tobacco abuse, acute bronchitis, peripheral edema, asthma, and arthralgia. (Id.) He renewed
her inhaler prescription. (Id.)
Plaintiff returned on September 24 to discuss her medications, specifically the
hydrocodone which was causing her skin to itch and her anxiety to increase. (Id. at 244.)
There are no examination findings. (Id.) She was diagnosed with an acute episode of
fibromyalgia, chronic allergies, behavioral disorder, and hypertension.

(Id.)

Her

prescriptions included Topamax and Percocet. (Id.)
On October 7, Plaintiff saw Dr. Nickerson for a refill of her alprazolam and for
treatment of her increased anxiety caused by severe marriage stress. (Id. at 243.) On
examination, all findings were within normal limits with the exception of her tears, anxiety,
and agitation. (Id.) Xanax was prescribed. (Id.) Three weeks later, she saw him for back

- 17 -

discomfort. (Id. at 242.) There are no examination findings; the diagnoses and plan are
illegible. (Id.)
In November, Plaintiff consulted Dr. Nickerson for her complaints of back and right
hip discomfort and to discuss family stress. (Id. at 241.) The next month, she told him she
wanted to go back on Naprosyn; it was prescribed. (Id. at 240.)
In January 2012, Plaintiff saw Dr. Nickerson for trouble she was having hearing out
of her left ear and for nasal congestion. (Id. at 239.) "[O]therwise [she was] just checking
in." (Id.) He noted that she had an appointment with a psychiatrist. (Id.)
Plaintiff returned in March, complaining of congestion, sore throat, earaches,
coughing, and an aching chest for past week. (Id. at 238.) She was prescribed antibiotics and
Percocet, a combination of acetaminophen and oxycodone. (Id.) In April, she complained
to Dr. Nickerson of back pain and recent episodes of nausea when eating peanuts and similar
foods. (Id. at 237.) She reported that the Percocet was causing insomnia. (Id.) She was
diagnosed with an exacerbation of her fibromyalgia, restless leg syndrome, hypertension, mild
peanut allergy, osteoarthritis/degenerative joint disease, depression/anxiety, and mood
disorder/bipolar. (Id.) In May, she discussed with him her eating habits; she was constantly
hungry for proteins. (Id. at 236.) There are no examination findings. (Id.) Dietary choices
were discussed. (Id.)
Later in May, Plaintiff was seen by Mary Chapel, N.P., with the Hannibal Clinic, for
complaints of right hand pain after hitting that hand on a table. (Id. at 281-83.) On
examination, she had a weak right hand grip, occasional tingling in her right thumb,
- 18 -

tenderness in that thumb on palpation, and no swelling or numbness. (Id. at 281.) X-rays of
the hand were normal. (Id. at 282, 283.) She was given a splint for the thumb, prescribed a
NSAID, and told to follow up with her primary care physician if the symptoms had not
resolved within a week. (Id. at 282.)
Also before the ALJ were assessments of Plaintiff's mental and physical impairments
and their resulting limitations.
In October 2010, Plaintiff was evaluated by Stephen R. Bergman, D.O., pursuant to
her SSI application. (Id. at 152-57.) Dr. Bergman opined that Plaintiff's serotonergic
syndrome was probably caused by the combination of amitriptyline, prescribed for
fibromyalgia and sleep difficulties, and citalopram, prescribed for depression. (Id. at 152.)
Plaintiff reported that her pains had begun in 2004; her anxiety and panic attacks began when
she was a child; her headaches have always been present; her depression began when she was
a child; and her low energy level and chronic fatigue began years earlier. (Id.) Her pains had
become severe and chronic in recent years; her panic attacks had become significant when
she was working at Wal-Mart.12 (Id.) Her pain level varied between a two and ten, but was
generally between a four and eight. (Id.) She described the pain as having a constant, dull
aching quality with occasional sharp or throbbing pains. (Id.) Dr. Bergman noted that
Plaintiff showed extreme emotional lability during the interview, quickly changing from
smiling and being seemingly happy to being tearful and sad. (Id.) Plaintiff further reported
that she avoided extensive activities and did not like to stand or walk for longer than fifteen

12

Her earnings record indicates that this was in 2008. (See id. at 91.)
- 19 -

minutes at a time. (Id. at 153.) She could prepare her own meals and perform her activities
of daily living, but sometimes needed help with shopping, reading, writing, or rising from a
seated position. (Id.) She smoked one pack of cigarettes a day, and had done so for twentyone years. (Id.) On examination, Plaintiff was sensitive to palpation in her hips, lower
extremities, shoulders, neck, and head. (Id. at 152-53.) She was 5 feet 6 inches tall and
weighed 268 pounds. (Id. at 153.) She was alert and oriented to time, place, and person.
(Id.) She had a normal, smooth, and symmetrical gait; deep tendon reflexes that were two out
of four; strength that was five out of five bilaterally in her upper and lower extremities,
including her grip; and "decent dexterity and fine finger movements." (Id.) She had no
sensory deficits in her upper and lower extremities and could hear and speak adequately. (Id.)
She had a full range of motion in her shoulders, elbows, wrists, hips, ankles, and spine. (Id.
at 154, 156-57.) She had "multiple tender points that [were] consistent with fibromyalgia."
(Id. at 154.) Dr. Bergman diagnosed Plaintiff with fibromyalgia syndrome, recent history of
serotonin syndrome, history of controlled hypertension, symptoms of major depression,
history of polycystic ovarian syndrome, and chronic obesity and pain of the low back, neck,
hips, shoulders, and knees. (Id.) "Based on [that day's] history and physical examination,"
he opined that Plaintiff was "a very emotionally fragile woman with some significant chronic
pain consistent with fibromyalgia syndrome." (Id.) Her serotonin syndrome limited her
choice of medications to treat her depression and fibromyalgia, "making it difficult for her
to function normally as a human being." (Id.)

- 20 -

Four days later, Plaintiff had a psychological evaluation by Frank Froman, E.D., a
clinical psychologist. (Id. at 158-62.) Dr. Froman observed that Plaintiff was "casually and
neatly attired and of excellent hygiene." (Id. at 158.) Plaintiff had attended an alternative
school "because she was depressed, isolated, and felt hated." (Id.) She had graduated from
the twelfth grade.

(Id.)

She complained of fibromyalgia, serotonergic syndrome,

osteoarthritis in her knees, chronic pain, fatigue, and episodes of significant and severe
hypertension. (Id.) Due to financial restrictions, Plaintiff could only afford Lisinopril and
an occasional Tylenol #3. (Id. at 158, 160.) She took ibuprofen and regular Tylenol every
four hours. (Id. at 158.) Plaintiff "presented in a slightly anxious but otherwise normalized
fashion." (Id. at 159.) She had an excellent ability to relate; good eye contact; and clear,
appropriate, easily understood, and relevant speech with a normal rate, rhythm, and content.
(Id.) She had constant ringing in her ears. (Id.) She enjoyed socializing. (Id.) She smoked
between one to three packs of cigarettes a day, depending on her mood and pain level. (Id.)
She had a driver's license, but did not drive very far because she tended to fall asleep. (Id.)
Her hobby was watching television. (Id.) Reading and doing chores hurt. (Id.) She got up
between six or seven times at night and took a daily nap. (Id.) She took care of her personal
hygiene tasks, with the exception of her husband brushing her hair. (Id.) On examination,
Plaintiff was oriented to time, place, and person. (Id. at 160.) She appeared to be of average
intelligence. (Id.) "She easily added, subtracted, multiplied and performed Serial 7's." (Id.)

- 21 -

She complained of short-tem memory problems, panic attacks when away from home, and
mood swings. (Id.) Dr. Froman rated her GAF as 60.13 (Id.) He concluded that
[Plaintiff] is a person who will have "good and bad days." During her good
days, she appears easily able to function, and can satisfy the needs of most
employers. During her bad days, it is quite unlikely that she would be able to
do so. She appears able to perform simple one or two step assemblies at a
competitive rate, but will be limited significantly and likely severely by her
fibromyalgia and chronic pain. She is able to relate adequately to co-workers
and supervisors. She can understand oral and written instructions and manage
her own benefits.
During her good days, she will likely be able to withstand the stress associated
with customary employment as long as it is "light." During her bad days, it is
unlikely that she would be able to do so.
(Id.)
As part of her evaluation, Plaintiff completed a Goldberg Depression Scale, rating how
she felt during the past week in respect to eighteen items. (Id. at 162.) On the six-point scale,
with 0 being "not at all" and 5 being "very much," Plaintiff rated five of the items as a five:
her future seemed hopeless; she had lost interest in aspects of life that used to seem important
to her; she felt fatigued; she felt like a failure; and her sleep was disturbed. (Id.) Two items
were rated a 4, "quite a lot": she felt sad, blue, and unhappy and it took great effort for her
to do simple things. (Id.) One item, it was hard for her to concentrate on reading, was a 3,
"moderately." (Id.) Three items were a 2, "somewhat"; three were a 1, "just a little"; and four
were a 0. (Id.)

A GAF score between 51 and 60 indicates "[m]oderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or
school functioning (e.g., few friends, conflicts with peers or co-workers)." DSM-IV-TR at 34
(emphasis omitted).
13

- 22 -

In December 2010, a Physical Residual Functional Capacity Assessment of Plaintiff
was completed by Sharon A. Falter, a single decision-maker.14 (Id. at 26-31.) The primary,
and only, diagnosis was fibromyalgia. (Id. at 26.) This impairment resulted in exertional
limitations of Plaintiff being able to occasionally lift or carry twenty pounds; frequently lift
or carry ten pounds; and sit, stand, or walk for approximately six hours in an eight-hour day.
(Id. at 27.) Her abilities to push and pull were otherwise unlimited. (Id.) She had postural
limitations of only occasionally balancing, stooping, kneeling, crouching, crawling, and
climbing, ramps, stairs, ladders, ropes, and scaffolds. (Id. at 28.) She had no manipulative,
visual or communicative limitations. (Id. at 28-29.) She had environmental limitations of
needing to avoid concentrated exposure to extreme cold and heat, to vibrations, and to
hazards, e.g., machinery and heights. (Id. at 29.)
The same month, a Psychiatric Review Technique form was completed for Plaintiff
by a non-examining consultant, Mark Altomari, Ph.D. (Id. at 171-82.) Plaintiff was assessed
as having an affective disorder, i.e., major depressive disorder, that caused mild restrictions
in her daily living activities, mild difficulties in maintaining social functioning, and moderate
difficulties in maintaining concentration, persistence, or pace. (Id. at 171, 174, 179.) It did
not cause any repeated episodes of decompensation of extended duration. (Id. at 179.)

See 20 C.F.R. §§ 404.906, 416.1406 (defining role of single decision-maker under proposed
modifications to disability determination procedures). See also Shackleford v. Astrue, 2012 WL
918864, *3 n.3 (E.D. Mo. Mar. 19, 2012) ("Single decision-makers are disability examiners
authorized to adjudicate cases without mandatory concurrence by a physician.") (citation omitted).
14

- 23 -

On a Mental Residual Functional Capacity Assessment form, Dr. Altomari assessed
Plaintiff as being moderately limited in one of the three abilities in the area of understanding
and memory, i.e., understanding and remembering detailed instructions, and not significantly
limited in the other two. (Id. at 183.) In the area of sustained concentration and persistence,
Plaintiff was moderately limited in two of the eight listed abilities, i.e., (i) carrying out
detailed instructions and (ii) maintaining attention and concentration for extended periods,
and not significantly limited in the other six. (Id. at 183-84.) In the area of social interaction,
Plaintiff was not significantly limited in any of the five listed abilities. (Id. at 184.) In the
area of adaptation, she was not significantly limited in three of the four abilities and was
moderately limited in her ability to respond appropriately to changes in the work setting. (Id.)
In June 2011, Dr. Nickerson completed a Medical Source Statement of Ability to Do
Work-Related Activities (Physical) on Plaintiff's behalf. (Id. at 187-90.) He assessed
Plaintiff as being limited to occasionally lifting twenty pounds or less. (Id. at 187.) He did
not assess the amount of weight she can frequently lift or carry.15 (Id.) She can stand or walk
for at least two hours in an eight-hour workday, but not for six. (Id.) She must periodically
alternate sitting and standing. (Id. at 188.) She is limited in her ability to use her upper and
lower extremities and cannot do repetitive motions. (Id.) She cannot balance and can only
occasionally kneel, crouch, crawl, stoop, and climb. (Id.) She can only occasionally reach
and handle. (Id. at 189.) Her limitations were caused by her pain and fatigue. (Id.) She is
unlimited in her abilities to see, hear, and speak. (Id.) She should avoid temperature

15

The choices included "less than 10 pounds." (Id.)
- 24 -

extremes and vibrations. (Id. at 190.) Her disability began on August 16, 2010. (Id.) Dr.
Nickerson opined that Plaintiff would not be a reliable employee. (Id. at 188.)
In May 2012, Plaintiff underwent a mental health evaluation by Ted Oliver, M.S.W.,
L.C.S.W., to maintain her Medicaid coverage. (Id. at 278-79.) Plaintiff reported that she had
had no formal psychiatric treatment, but had been taking various medications, including
Wellbutrin. (Id. at 278.) On examination, she was oriented to time, place, person, and
situation; was occasionally tearful; and had a sad affect, dysthymic (depressed) mood, and
appropriate rate and volume of speech. (Id.) Her concentration was fair; her recent and
remote memory was intact; her intellectual functioning was average. (Id.) She reported that
she becomes irritable, tearful, depressed, and anxious if she does not take the Wellbutrin.
(Id.) She takes alprazolam to help with panic attacks. (Id.) She reported being anxious
around people for years. (Id.) She had a steroid shot every four months for symptoms of
fibromyalgia. (Id.) Mr. Oliver diagnosed Plaintiff with panic disorder with agoraphobia and
depressive disorder, not otherwise specified. (Id.) He rated her current GAF as 50.16 (Id. at
279.) He opined that ongoing treatment would help her "ongoing symptoms of anxiety which
impact her daily functioning." (Id.)
The ALJ's Decision
The ALJ first determined that Plaintiff had not engaged in substantial gainful activity
since her alleged onset date of September 22, 2010. (Id. at 17.) He next found that she had
severe impairments of fibromyalgia, degenerative disc disease with retrolisthesis, obesity,

16

See note 9, supra.
- 25 -

migraine headaches, asthma, depression, and panic disorder with agoraphobia. (Id.) Also,
she had impairments that were either not severe or had not persisted for twelve continuous
months, i.e., serotonergic syndrome and tinnitus. (Id.) Plaintiff did not have, however, an
impairment or combination of impairments that met or medically equaled an impairment of
listing-level severity. (Id.) Addressing her mental impairments, the ALJ specifically found
that Plaintiff had mild restrictions in her activities of daily living, moderate difficulties in
social functioning, and moderate difficulties in concentration, persistence, or pace. (Id. at
18.) She had not had any episodes of decompensation of extended duration. (Id.)
Next addressing Plaintiff's residual functional capacity (RFC), the ALJ determined that
she can perform light work17 except that she needs to change positions every hour for a
minute or two; she cannot climb ropes, ladders, or scaffolds; and she can only occasionally
balance, stoop, kneel, crouch, crawl, or climb ramps and stairs. (Id. at 19.) She has to avoid
whole body vibration, concentrated exposure to pulmonary irritants, and prolonged exposure
to temperature extremes. (Id.) She is limited to performing simple routine tasks requiring
only superficial interaction with coworkers, supervisors, and the general public. (Id.)
In assessing Plaintiff's RFC, the ALJ evaluated her credibility, finding her not to be
fully credible. (Id. at 19-23.) Specifically, he found her descriptions of her limitations to be
inconsistent with the findings of Drs. Bergman and Nickerson and with diagnostic tests

"According to the regulations, 'light work' is generally characterized as (1) lifting or carrying
ten pounds frequently; (2) lifting twenty pounds occasionally; (3) standing or walking, off and on,
for six hours during an eight-hour workday; (4) intermittent sitting; and (5) using hands and arms for
grasping, holding, and turning objects." Holley v. Massanari, 253 F.3d 1088, 1091 (8th Cir. 2001)
(citing Social Security Ruling 83–10, 1983 WL 31251, at *4–5 (S.S.A. 1983))
17

- 26 -

results. (Id. at 19-21.) The ALJ discounted Dr. Bergman's opinion of Plaintiff's mental
health on the grounds that Dr. Bergman had examined her for her physical, not mental,
condition and that Plaintiff was not then undergoing any psychiatric treatment. (Id. at 20.)
He found it significant that Dr. Nickerson had not listed fibromyalgia in his diagnoses
between March 2009 and November 2010, had described her migraines in March 2011 as
"new onset," had not continuously prescribed her pain medications, and had only once
diagnosed her with an "acute episode of fibromyalgia." (Id. at 20-21.) The ALJ also
discounted Dr. Froman's opinion about limitations Plaintiff would suffer from her
fibromyalgia because it was outside his area of expertise. (Id. at 22.) The ALJ found that
Plaintiff's work history indicated a lack of motivation to work, that she received little
treatment beyond her regular visits to Dr. Nickerson, and that she had not started psychiatric
treatment until almost two years after her alleged disability onset date. (Id.) Also, she did
not consistently take narcotic medications or prescription medications for her migraines. (Id.
at 23.) Although she had been diagnosed with serotonergic syndrome, she had been able to
tolerate Wellbutrin and Xanax. (Id.) She went to doctors' appointments and went grocery
shopping, contradicting the allegation she avoided going out in public due to agoraphobia.
(Id.)
The ALJ gave Dr. Nickerson's medical source statement "some weight," accepting his
opinion about Plaintiff's lifting limitations, her need to alternate between sitting and standing,
and her exposure limitations. (Id.) He did not accept his opinion about Plaintiff's standing,
walking, pushing, pulling, and manipulative limitations for the same considerations
- 27 -

influencing his assessment of Dr. Nickerson's treatment notes when evaluating Plaintiff's
credibility. (Id.) He also did not accept Mr. Oliver's GAF finding because it was not from
an acceptable medical source and was in the absence of any ongoing treatment. (Id.) The
Function Report completed by Plaintiff's husband was given little weight because it mirrored
hers and was inconsistent with the other evidence of record. (Id. at 24.)
The ALJ then concluded that Plaintiff cannot return to her past relevant work as a
cashier but can, with her age, education, and RFC, perform other jobs that exist in significant
numbers in the state and national economies, as described by the VE. (Id. at 25-25.) Plaintiff
is not, therefore, disabled within the meaning of the Act. (Id. at 25.)
Additional Medical Records Before the Appeals Council
After the ALJ rendered his decision, Plaintiff submitted additional medical records
from Dr. Nickerson to the Appeals Council.
These records begin with those of her June 2012 visit for a refill of oxycodone. (Id.
at 296.) Dr. Nickerson noted that Plaintiff's disability hearing was soon; there are no
examination findings. (Id.) In July, Plaintiff requested an injection in the right side of her
hip because she was having trouble sitting or standing for long. (Id. at 295.) An injection
was given. (Id.) Again, there are no examination findings. In September, she saw him for
complaints of a cough, congestion, sore throat, earaches, and runny nose. (Id. at 294.) On
examination, she had a hoarse voice and non-productive cough. (Id.) She was diagnosed
with bronchitis, sinusitis, and tinea otitis and prescribed antibiotics. (Id.) Two days later, she
returned with complaints of back discomfort and neck pain. (Id. at 292.) The examination
- 28 -

findings are within normal limits, with the exception of her extremities, which are not
reported. (Id.) Also, she was having situational anxiety caused by her husband's decision that
he was no longer bipolar and did not need to take medication. (Id.) On October 5, Plaintiff
saw Dr. Nickerson and was upset because she had been denied disability. (Id. at 291.) He
diagnosed her with situational anxiety and depression/behavior disorder in addition to
f i b r o m ya l g i a ,

p o o r l y- c o n t r o l l e d

h yp e r t e n s i o n ,

c h r o n ic

a lle r g i e s ,

and

osteoarthritis/degenerative joint disease. (Id.) Three days later, she had an injection in her
left hip, a flu shot, and a recheck of her bronchitis. (Id. at 290.)
Standards of Review
Under the Act, the Commissioner shall find a person disabled if the claimant is
"unable to engage in any substantial activity by reason of any medically determinable physical
or mental impairment," which must last for a continuous period of at least twelve months or
be expected to result in death. 42 U.S.C. §§ 423(d)(1), 1382c(a)(3)(A). Not only the
impairment, but the inability to work caused by the impairment must last, or be expected to
last, not less than twelve months. Barnhart v. Walton, 535 U.S. 212, 217-18 (2002).
Additionally, the impairment suffered must be "of such severity that [the claimant] 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, regardless of whether . . . a specific job vacancy exists for [her], or whether [s]he
would be hired if [s]he applied for work." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).

- 29 -

"The Commissioner has established a five-step 'sequential evaluation process' for
determining whether an individual is disabled.'" Phillips v. Colvin, 721 F.3d 623, 625 (8th
Cir. 2013) (quoting Cuthrell v. Astrue, 702 F.3d 1114, 1116 (8th Cir. 2013) (citing 20 C.F.R.
§ 416.920(a)18 ). "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). First, the
claimant cannot be presently engaged in "substantial gainful activity." See 20 C.F.R.
§ 416.920(b); Hurd, 621 F.3d at 738. Second, the claimant must have a severe impairment.
See 20 C.F.R. § 416.920(c). A"severe impairment" is "any impairment or combination of
impairments which significantly limits [claimant's] physical or mental ability to do basic work
activities . . . ." Id.
At the third step in the sequential evaluation process, the ALJ must determine whether
the claimant has a severe impairment which meets or equals one of the impairments listed in
the regulations and whether such impairment meets the twelve-month durational requirement.
See 20 C.F.R. § 416.920(d) and Part 404, Subpart P, Appendix 1. If the claimant meets these
requirements, she is presumed to be disabled and is entitled to benefits. Bowen v. City of
New York, 476 U.S. 467, 471 (1986); Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir.
1994).
"Prior to step four, the ALJ must assess the claimant's [RFC], which is the most a
claimant can do despite her limitations." Moore v. Astrue, 572 F.3d 520, 523 (8th Cir.

Unless otherwise indicated, all citations to the Code of Federal Regulations are to the
revision in effect at the time of the ALJ's decision.
18

- 30 -

2009). "[A]n RFC determination must be based on a claimant's ability 'to perform the
requisite physical acts day in and day out, in the sometimes competitive and stressful
conditions in which real people work in the real world.'" McCoy v. Astrue, 648 F.3d 605,
617 (8th Cir. 2011) (quoting Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007)).
Moreover, "'a claimant's RFC [is] based on all relevant evidence, including the medical
records, observations of treating physicians and others, and an individual's own description
of his limitations.'" Moore, 572 F.3d at 523 (quoting Lacroix, 465 F.3d at 887); accord
Partee v. Astrue, 638 F.3d 860, 865 (8th Cir. 2011).
"'Before determining a claimant's RFC, the ALJ first must evaluate the claimant's
credibility.'" Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007) (quoting Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2002)). This evaluation requires the ALJ consider
"'[1] the claimant's daily activities; [2] the duration, frequency and intensity of the pain; [3]
precipitating and aggravating factors; [4] dosage, effectiveness and side effects of
medication; [5] functional restrictions.'" Id. (quoting Polaski v. Heckler, 739 F.2d 1320,
1322 (8th Cir. 1984)). "'The credibility of a claimant's subjective testimony is primarily for
the ALJ to decide, not the courts.'" Id. (quoting Pearsall, 274 F.3d at 1218). After
considering the Polaski 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. Ford v. Astrue, 518 F.3d 979, 982 (8th Cir. 2008); Singh v. Apfel, 222 F.3d
448, 452 (8th Cir. 2000).

- 31 -

At step four, the ALJ determines whether 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. § 416.920(e). The burden at step four remains
with the claimant to prove her RFC and establish 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, as in the instant case, 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 the claimant maintains the RFC to perform a significant number of jobs within the
national economy. Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009); Banks v.
Massanari, 258 F.3d 820, 824 (8th Cir. 2001). See also 20 C.F.R. § 416.920(f). The
Commissioner may meet her burden by eliciting testimony by a VE, Pearsall, 274 F.3d at
1219, based on hypothetical questions that "'set forth impairments supported by substantial
evidence on the record and accepted as true and capture the concrete consequences of those
impairments,'" Jones v. Astrue, 619 F.3d 963, 972 (8th Cir. 2010) (quoting Hiller v. S.S.A.,
486 F.3d 359, 365 (8th Cir. 2007)).
If the claimant is prevented by her impairment from doing any other work, the ALJ
will find the claimant to be disabled.
The ALJ's decision whether a person is disabled under the standards set forth above
is conclusive upon this Court "'if it is supported by substantial evidence on the record as a
whole.'" Wiese v. Astrue, 552 F.3d 728, 730 (8th Cir. 2009) (quoting Finch v. Astrue, 547
- 32 -

F.3d 933, 935 (8th Cir. 2008)); accord Dunahoo v. Apfel, 241 F.3d 1033, 1037 (8th Cir.
2001). "'Substantial evidence is relevant evidence that a reasonable mind would accept as
adequate to support the Commissioner's conclusion.'" Partee, 638 F.3d at 863 (quoting Goff
v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)). When reviewing the record to determine
whether the Commissioner's decision is supported by substantial evidence, however, the Court
must consider evidence that supports the decision and evidence that fairly detracts from that
decision. Moore, 623 F.3d at 602; Jones, 619 F.3d at 968; Finch, 547 F.3d at 935. The
Court may not reverse that decision merely because substantial evidence would also support
an opposite conclusion, Dunahoo, 241 F.3d at 1037, or it might have "come to a different
conclusion," Wiese, 552 F.3d at 730.
Discussion
Plaintiff argues that the ALJ erred by failing to properly weigh and refer to the
opinions of Drs. Nickerson, Bergman, and Froman; by not contacting those providers to
clarify their opinions if found wanting; and by concluding that her serotonergic syndrome is
not a severe impairment. The Commissioner disagrees.
Alleging a disability onset date of August 16, 2010, Plaintiff applied for SSI the next
month based on her serotonergic syndrome, fibromyalgia, migraines, depression,
osteoarthritis, pain, fatigue, and panic attacks. The ALJ found her to have severe impairments
of fibromyalgia, degenerative disc disease with retrolisthesis, obesity, migraine headaches,
asthma, depression, and panic disorder with agoraphobia.
serotonergic syndrome is not an severe impairment.
- 33 -

He further found that her

Plaintiff was diagnosed with serotonergic syndrome on August 16, 2010 – her alleged
disability onset date. She was then told to stop taking the amitriptyline and citalopram 19 she
had been taking for the past month. There is no reference after this diagnosis to Plaintiff
being agitated and confused. She never again took both amitriptyline and citalopram,
although she was prescribed other antidepressants and pain relievers. And, although the
diagnosis of serotonergic syndrome was continued to reflect that Plaintiff cannot tolerate
taking two drugs simultaneously that each raise her serotonin levels, the only indication that
the syndrome prejudicially interfered with her treatment is Dr. Berman's reference two months
after the original diagnosis to the syndrome limiting her choice of medications to treat her
depression and fibromyalgia. Plaintiff, however, was subsequently prescribed, among other
things, gabapentin for nerve pain; opioid pain relievers, e.g., hydrocodone, oxycodone, and
cocaine; antidepressants, e.g., Wellbutrin and Xanax; and NSAIDs, e.g., Toradol, Naprosyn,
and meloxicam. As noted above, if an impairment does not significantly limit a claimant's
physical or mental ability to do basic work activities it is not severe. Nguyen v. Chater, 75
F.3d 429, 430-31 (8th Cir. 1996). It is the claimant's burden to show that an impairment is
severe. Id. Accord Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir. 2001). Plaintiff has
failed to show that her serotonergic syndrome is a severe impairment. Rather, the evidence
is that the syndrome affects the combination of medications she may be prescribed but has not
sufficiently limited her choice of medications as to be considered a severe impairment.

19

See note 1, supra.
- 34 -

Plaintiff argues that the ALJ erred by failing to give Dr. Nickerson's medical source
statement controlling weight. It is undisputed that Dr. Nickerson was Plaintiff's treating
physician at all times relevant. See 20 C.F.R. § 416.902 (defining "treating source" as a
claimant's "own physician, psychologist, or other medical source who provides [claimant], or
has provided [claimant] with medical treatment or evaluation and who has, or has had, an
ongoing relationship with [claimant]."). Several of the limitations noted in his Medical
Source Statement were incorporated by the ALJ in his RFC findings: the lifting limitations,
the need to alternate between sitting and standing, and the need to avoid temperature extremes
and vibrations. The ALJ did not accept Dr. Nickerson's assessment of Plaintiff's limitations
in the length of time she can stand or walk, in the use of her upper and lower extremities, in
doing repetitive motions, and in reaching and handling.
The assessment at issue was done on June 3, 2011. Plaintiff's visit that same day was
for a cut on her big toe. She saw Dr. Nickerson twice the month before, once for back and
flank pain and situational depression and once for intermittent panic attacks. The other eleven
visits that occurred between her disability onset date and April 2011, inclusive, were for a
variety of complaints which, together with the diagnoses, seldom repeated from one visit to
the next. Each office note included a checklist for the findings of a physical examination –
the results were usually within normal limits if marked at all; two lines for a summary of her
complaints; two lines for his comments; six numbered lines for his assessment; and three lines
for his treatment plan.

- 35 -

It is undisputed that Dr. Nickerson is Plaintiff's treating physician, having first seen her
in March 2007 and being her only consistent health care provider thereafter. See 20 C.F.R.
§ 416.902 (defining "treating source" as a claimant's "own physician, psychologist, or other
medical source who provides [claimant], or has provided [claimant] with medical treatment
or evaluation and who has, or has had, an ongoing relationship with [claimant]."). "The
regulations provide that if the ALJ finds 'that a treating source's opinion on the issue(s) of the
nature and severity of [the applicant's] impairment(s) is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the applicant's] record, [the ALJ] will give it controlling weight.'"
Wagner, 499 F.3d at 848-49 (quoting 20 C.F.R. § 404.1527(d)(2)). Thus, "while a treating
physician's opinion is generally entitled to substantial weight, such an opinion does not
automatically control because the [ALJ] must evaluate the record as a whole." Id. at 849
(internal quotations omitted).
There is nothing in the record to support Dr. Nickerson's limitations on Plaintiff's use
of her upper and lower extremities. Eight months earlier, Plaintiff had had full strength in her
upper and lower extremities, including her grip; "decent dexterity and fine finger
movements"; and a full range of motion in her shoulders, elbows, wrists, hips, ankles, and
spine. (R. at 153.) His treatment notes during that eight-month period do not include
examination findings supportive of the rejected limitations. "It is permissible for an ALJ to
discount an opinion of a treating physician that is inconsistent with the physician's clinical
treatment notes." Davidson v. Astrue, 578 F.3d 838, 843 (8th Cir. 2009); accord Turpin v.
- 36 -

Colvin, 750 F.3d 989, 993 (8th Cir. 2014). Thus, in Cline v. Colvin, 771 F.3d 1098, 1104
(8th Cir. 2014), the Eighth Circuit Court of Appeals affirmed the Commissioner's decision to
partially credit the opinion of the claimant's treating physician whose "cursory checklist
statement also include[d] significant . . . limitations that are absent from his treatment notes
and [the claimant's] medical records." And, in Johnson v. Astrue, 628 F.3d 991, 994 (8th
Cir. 2011), the court noted the use by one of the claimant's treating physicians of the Medical
Source Statement form – "consist[ing] of a series of check marks assessing [RFC]" – and held
that the ALJ may discount the "conclusory opinions" reflected in the MSS "if contradicted by
other objective medical evidence in the record." See also Reed v. Barnhart, 399 F.3d 917,
921 (8th Cir. 2005) (noting that the court "[has] upheld an ALJ's decision to discount a
treating physician's MSS where the limitations listed on the form 'stand alone' and were 'never
mentioned in [the physician's] numerous records or treatment' nor supported by 'any objective
testing or reasoning'") (second alteration in original).
His notes do, however, sporadically refer to Plaintiff's complaints of pain and fatigue.
An ALJ may discount a treating physician's opinion that is based on the claimant's subjective
complaints. See Renstrom v. Astrue, 680 F.3d 1057, 1065 (8th Cir. 2012) (ALJ properly
gave treating physician's opinion non-controlling weight when, among other things, that
opinion was largely based on claimant's subjective complaints); Kirby v. Astrue, 500 F.3d
705, 709 (8th Cir. 2007) (finding that ALJ was entitled to discount treating physician's
statement as to claimant's limitations because such conclusion was based primarily on

- 37 -

claimant's subjective complaints and not on objective medical evidence).

The ALJ's

assessment of Plaintiff's credibility is not challenged.
Plaintiff further argues that the ALJ's failure to recognize that Dr. Nickerson's opinions
are supported by the evidence of her fibromyalgia is a failure to understand fibromyalgia.
"[F]ibromyalgia is a chronic condition which is difficult to diagnose and may be disabling."
Pirtle v. Astrue, 479 F.3d 931, 935 (8th Cir. 2007) (emphasis added). See also Forehand
v. Barnhart, 364 F.3d 984, 987 (8th Cir. 2004) ("We have long recognized that fibromyalgia
has the potential to be disabling.") (emphasis added). The diagnosis itself does not establish
disability as is evident from the diagnosis first appearing in Plaintiff's March 2007 medical
record – forty-one months before her alleged disability onset date. And, unlike the ALJ in
Tilley v. Astrue, 580 F.3d 675, 681 (8th Cir. 2009), cited by Plaintiff, the ALJ did address
her fibromyalgia and found her to have several resulting physical limitations.
Plaintiff also challenges the ALJ's failure to give weight to Dr. Froman's opinion as to
her physical limitations and Dr. Bergman's opinion as to her mental limitations on the grounds
that those opinions were outside the area of expertise of those consulting examiners.
As noted above, Dr. Bergman, a consulting physician, conducted a physical
examination of Plaintiff in October 2010 pursuant to her SSI application. At that time,
Plaintiff had recently been diagnosed with serotonergic syndrome and was consequently only
taking Tylenol #3, had consulted a counselor the day before but had not yet been treated by
her, and was not taking any antidepressants. Two weeks after the examination, Plaintiff had
stopped seeing the counselor and would not again seek psychological counseling again for
- 38 -

eight months. This was also the last time she sought any mental health treatment. Four
months after being examined by Dr. Bergman, Plaintiff was started by her primary care
physician, Dr. Nickerson, on an antidepressant and was able to remain on such without any
complications caused by her serotonergic syndrome. Thus, the question before the ALJ was
what weight to give Dr. Bergman's conclusion that Plaintiff was "a very emotionally fragile
woman," Record at 154, when he had conducted a physical, not mental examination, of
Plaintiff, had cited a physical examination of Plaintiff and her history as a basis for his
conclusion, and had seen Plaintiff before she had received any mental health treatment or
taken an antidepressant – a medication the lack of which was another part of his basis for his
conclusion. The ALJ did not err in not giving Dr. Bergman's conclusion greater weight due
to it being issued in the absence of any treatment or medication for Plaintiff's mental health
problems and being based on considerations outside his area of expertise and on Plaintiff's
subjective report. See Wildman v. Astrue, 596 F.3d 959, 967 (8th Cir. 2010) (ALJ did not
err in disregarding opinions of consulting psychologists based on their analyses of claimant's
physical ailments and on claimant's subjective complaints); Brosnahan v. Barnhart, 336
F.3d 671, 676 (8th Cir. 2003) (ALJ did not err in discounting psychologist's opinion about
claimant's physical impairments as those impairments were outside his area of expertise).
Similarly, the ALJ did not err in not giving the opinion of Dr. Froman, a consulting
psychologist, that Plaintiff would be "significantly and likely severely limited by her
fibromyalgia and chronic pain," Record at 159, any weight because it addressed Plaintiff's

- 39 -

physical ailments, impairments outside his area of expertise, and was based on her subjective
complaints. See Wildman, 596 F.3d at 967; Brosnahan, 336 F.3d at 676.
Citing 20 C.F.R. § 416.927(c)(3) (2011),20 Plaintiff contends that rather than
discounting the opinions of Drs. Nickerson, Bergman, and Froman for lack of support the ALJ
had a duty to contact each for clarification. Noting that March 2012 amendments to the
regulations removed § 416.927(c)(3),21 the Commissioner counters that there is no error
because the evidence before the ALJ was sufficient for him to make a decision.
Similarly to Plaintiff, the claimant in Grable v. Colvin, 770 F.3d 1196 (8th Cir. 2014),
argued that the ALJ had erred by not seeking clarification from her treating physician about
his opinion and by not stating the amount of weight given to it. Noting that "[a]n ALJ is not
required to seek 'clarifying statements from a treating physician unless a crucial issue is
undeveloped,'" the court found no clarification needed because the ALJ had "considered
numerous medical assessments and records in weighing [the physician's] opinion." Id. at
1201 (quoting Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004)). "An ALJ need only
clarify whether it “discount[ed] [a treating physician's] findings, and, if it did so, why.'" Id.
at 1202 (quoting McCadney v. Astrue, 519 F.3d 764, 767 (8th Cir.2008)) (alteration in

20

In relevant part, § 416.927(c)(3) read:

If the evidence is consistent but we do not have sufficient evidence to decide whether
you are disabled, or, if after weighing the evidence we decide we cannot reach a
conclusion about whether you are disabled, we will try to obtain additional evidence
....
See 77 F.R. 10651-01, 10656, 2011 WL 7404303 (Feb. 23, 2012) (providing that § 416.912
will be amended by, among other things, removing paragraph (e)).
21

- 40 -

original). "The ALJ satisfied that obligation by expressly refusing to give [the physician's]
opinion 'great weight' and then explaining its reasons for doing so." Id. In the instant case,
the ALJ expressly refused to give the opinion of Dr. Nickerson controlling weight and the
opinions at issue of Drs. Bergman and Froman any weight and explained his reasons for doing
so. There is no error in the ALJ not contacting any of the three for clarification.
Conclusion
An ALJ's decision is not to be disturbed "'so long as the . . . decision falls within the
available zone of choice. An ALJ's decision is not outside the zone of choice simply because
[the Court] might have reached a different conclusions had [the Court] been the initial finder
of fact.'" Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011) (quoting Bradley v. Astrue,
528 F.3d 1113, 1115 (8th Cir. 2008)).

Although Plaintiff articulates why a different

conclusion might have been reached, the ALJ's decision, and, therefore, the Commissioner's,
is within the zone of choice and will not be reversed for the reasons set forth above.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED
and that this case is DISMISSED.
An appropriate Order of Dismissal shall accompany this Memorandum and Order.

/s/ Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE
Dated this 28th day of January, 2015.
- 41 -