McFarland v. Commissioner of Social Security
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED and this case is DISMISSED. An appropriate Order of Dismissal shall accompany this Memorandum and Order. Signed by Magistrate Judge Thomas C. Mummert, III on May 19, 2015. (MCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CRYSTAL K. McFARLAND,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Case number 2:14cv0042 TCM
MEMORANDUM AND ORDER
This 42 U.S.C. §§ 405(g) and 1383(c)(3) action for judicial review of the final
decision of Carolyn W. Colvin, the Acting Commissioner of Social Security (Commissioner),
denying the applications of Crystal K. McFarland (Plaintiff) for disability insurance benefits
(DIB) under Title II of the Social Security Act (the Act), 42 U.S.C. § 401-433, and for
supplemental security income (SSI) under Title XVI of the Act, 42 U.S.C. § 1381-1383b, is
before the undersigned United States Magistrate Judge by written consent of the parties. See
28 U.S.C. § 636(c).
By decision dated October 4, 2011, an Administrative Law Judge (ALJ) determined
that Plaintiff had not engaged in substantial gainful activity after October 1, 2008, and had
severe impairments of degenerative disc disease of the thoracic spine and, probably,
fibromyalgia. (R.1 at 100-09.) The ALJ concluded, however, that these impairments were
not disabling and denied Plaintiff's applications for DIB and SSI. (Id.) Plaintiff applied for
DIB and SSI again in December 2011, alleging she was disabled as of October 4, 2011, by
irritable bowel syndrome (IBS), major depressive disorder, chronic fatigue syndrome,
interstitial cystitis (painful bladder syndrome), osteoarthritis in her right foot, rheumatoid
arthritis, degenerative disc disease, hypothyroidism, asthma, and anxiety. (Id. at 182-94,
235.) Her applications were denied initially and after a hearing held in September 2013
before ALJ Cynthia K. Hale. (Id. at 9-26, 36-70, 95-96, 114-15, 120-24.) Plaintiff then
requested review of that decision by the Appeals Council and leave to file a new application
while the request for review was pending. After considering submitted evidence, the Appeals
Council denied both requests, noting that some of the documents had been before the ALJ
and others related to a later time. (Id. at 1-5, 32.) The Appeals Council advised Plaintiff that
she could use the date of her request for review as her disability onset date if she elected to
file new DIB and SSI claims. (Id. at 2.)
Testimony Before the ALJ
Plaintiff, represented by counsel, and Abbe May, M.Ed., testified at the administrative
Plaintiff testified that she was then 47 years old, divorced, right-handed, and has no
children under the age of 18. (Id. at 41.) She lives in a house with a man who is retired and
References to "R." are to the administrative record filed by the Acting Commissioner with
disabled. (Id. at 42.) She has no income of her own. (Id.) She graduated from high school
and attended cosmetology school. (Id.) She has not worked as a cosmetologist for at least
fifteen years. (Id. at 43.)
Plaintiff last worked in 2008. (Id.) She left her factory job then because of her carpal
tunnel syndrome and her other medical conditions. (Id.) Asked what her most significant
medical conditions are, Plaintiff replied that they are her spine, back pain, and fatigue. (Id.)
She sees a nurse practitioner, a rheumatologist, and a urologist. (Id. at 44.) She was recently
referred to an ear, nose, and throat (ENT) doctor. (Id.)
Plaintiff described her worst pain as being neck pain and sciatic nerve pain that
radiates through her legs, hips, and lower back. (Id. at 46.) To help relieve the pain, she
takes Neurontin and lies down. (Id. at 47.) Also, her feet constantly hurt; her fingers are
stiff, causing her to drop things; her sinuses hurt; and her ears bother her. (Id.)
Plaintiff can sit for approximately twenty minutes before having to change positions,
can stand for fifteen, and can walk for twenty. (Id. at 48.) She is not supposed to lift a lot
and can lift only five to ten pounds. (Id.) She cannot put her arms above her head for long
and has trouble rising up from a kneeling, crawling, stooping, or crouching position. (Id. at
48-49.) Her hands constantly hurt. (Id. at 49.) Her asthma causes her difficulties breathing.
(Id.) Her feet swell and an injury to her left shoulder blade makes it hard for her to lift
anything with that arm. (Id. at 56-57.) Because of fatigue, she has no energy. (Id. at 58-59.)
Her doctors have told her to try to keep moving and to start eating fruits and vegetables. (Id.
at 60.) And, she is depressed and has been seeing a counselor. (Id. at 49-50.)
Plaintiff does not smoke, drink, or take non-prescription drugs. (Id. at 50.)
She has trouble sleeping because her bladder condition wakes her up during the night.
(Id.) She sits on a stool when taking a shower. (Id.) She makes her bed and does light loads
of laundry. (Id. at 51.) She cannot do other household chores. (Id.) She can go grocery
shopping but has to leave if the store is crowded. (Id. at 51-52.) She has hot flashes and her
heart races when she is in a crowd. (Id. at 52.)
Plaintiff has a driver's license, but does not like to drive. (Id. at 42.) She attends
church; the services are an hour long. (Id. at 52.) She can only read for short periods because
her eyes get tired. (Id. at 53.) She takes care of a cat. (Id.) During a typical day, Plaintiff
alternates between sitting in a recliner and lying down. (Id. at 53, 55.) She watches a little
television. (Id. at 55.) She tries to exercise. (Id.) She naps for approximately forty-five
minutes every day. (Id. at 59.)
Ms. May was asked to assume a hypothetical claimant who is limited to light work and
needs to alternate at will every forty-five minutes between sitting, standing, and walking. (Id.
at 64.) She is restricted to only occasional interaction with the general public and can only
occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs. (Id. at 65.)
She is not to climb ladders, ropes, or scaffolds. (Id.) She should avoid concentrated exposure
to work hazards, smoke, fumes, and other irritants. (Id.) Ms. May testified that such a
claimant can perform the work of a collator, laundry worker, and general office helper. (Id.
at 66.) This claimant will be able to perform these jobs if she can only occasionally reach
overhead and can frequently use her hands to grip, grasp, or handle. (Id.) If this claimant
needs to use the restroom briefly every hour, the jobs will not be affected. (Id.) If the
claimant is limited to lifting and carrying no more than ten pounds and has to briefly move
around every forty-five minutes, the jobs will still be appropriate. (Id. at 66-67.) The laundry
worker and collator positions allow for sitting and standing at will. (Id. at 67.) The office
helper position allows for a worker to move about freely. (Id.) If the claimant needs to be
absent or leave work early two days a month, employment will be precluded. (Id. at 67-68.)
If the claimant is limited to only occasional use of her hands to grip, grasp, or handle,
the cited jobs will be eliminated. (Id. at 69.) If the claimant is off task for at least ten to
twenty percent of the work day, the number of jobs will be less. (Id. at 68.)
Ms. May stated that her testimony was consistent with the Dictionary of Occupational
Titles (DOT). (Id.) The DOT does not refer to a sit/stand option; however, her experience
as a rehabilitation counselor for twenty years informed her testimony about the freedom of
movement allowed by the three cited jobs . (Id.)
Medical and Other Records Before the ALJ
The administrative record before the ALJ also included forms Plaintiff completed as
part of the application process, documents generated pursuant to her applications, records
from health care providers, and assessments of her physical and mental functional capacities.
On a Function Report, Plaintiff circled all the listed abilities as being adversely
affected by her impairments: lifting, squatting, bending, standing, reaching, walking, sitting,
kneeling, talking, hearing, climbing stairs, seeing, remembering, completing tasks,
concentrating, understanding, following instructions, using her hands, and getting along with
others. (Id. at 250.) She cannot walk for longer than five to ten minutes before having to rest
for five. (Id.) She does not handle stress or changes in routine well. (Id. at 251.) She
sometimes uses a cane, crutches, or walker. (Id.) The friend she lives with completed a
Function Report on Plaintiff's behalf. (Id. at 265-72.) His answers generally mirror hers,
with the exception that he did not list any use of crutches or a walker. (Id. at 271.) He and
her mother separately completed questionnaires on Plaintiff's behalf. (Id. at 284-86, 288-90.)
Their responses to the questions, e.g., asking what problems prevent her from working and
how long she can sit, stand, or walk, are consistent with the Function Reports and Plaintiff's
hearing testimony. (Id.)
Plaintiff's extensive medical records begin in April 2009 with those of John
Barbagiovanni, D.O., of the Quincy Medical Group (QMG). Plaintiff complained of
occasional abdominal pain and diarrhea for the past three years that had become worse the
past month. (Id. at 440-41.) He suspected IBS and was to review her medical records before
making any treatment decisions. (Id. at 441.)
On May 6, Plaintiff saw Ada Kagumba, M.D., with the QMG for complaints of severe
pelvic pain, bloating, and dysuria (painful urination) for the past few years. (Id. at 437-39.)
Plaintiff was described as being "a difficult historian because she reported multiple symptoms
and was unable to give a direct answer to any of the questions . . . asked her." (Id. at 437.)
Dr. Kagumba thought it unlikely that the small ovarian cyst revealed by a computed
tomography (CT) scan was the cause of her pelvic pain. (Id. at 439.) A decision on
medication was deferred to until Plaintiff saw another QMG physician, Kurt Leimbach, M.D.
which she did on May 18, complaining of pain in her neck, back, and right leg. (Id. at 41921, 439.) Dr. Leimbach noted that Plaintiff "[c]omplain[ed] bitterly of pain from her head
to her sacrum." (Id. at 419.) She had never had a magnetic resonance imaging (MRI) of her
spine and was scheduled for one. (Id.) She was prescribed diltiazem, used to treat
hypertension, and was to return after she had the MRI. (Id. at 420-21.)
Plaintiff returned to Dr. Leimbach on June 1. (Id. at 417-18, 446.) A CT scan of her
chest was normal. (Id. at 417, 447.) The MRIs of her cervical, thoracic, and lumbar spines
revealed mild degenerative changes with some spinal cord and nerve root compression. (Id.
at 417, 448-50.) Also, she was having some dysuria. (Id.) X-rays of her abdomen showed
no evidence of gastrointestinal obstructions. (Id. at 446.) She was to see a neurosurgeon for
evaluation of her back pain, have a colonoscopy to investigate her complaints of diarrhea,
have abdominal tests for complaints of bloating, have a urinalysis to investigate her dysuria,
and be tested for antinuclear antibodies (ANA) to confirm her reports of a history of positive
ANAs. (Id. at 418.)
Two days later, Plaintiff saw Dr. Barbagiovanni, who noted that Plaintiff's
rheumatology workup appeared to be negative. (Id. at 436.) A colonoscopy was normal, with
the exception of hemorrhoids. (Id.) An upper endoscopy was unremarkable. (Id.) Dr.
Barbagiovanni recommended repeat examinations. (Id.)
On June 15, Plaintiff complained to Dr. Leimbach of back pain, palpitations, and
gas/bloating. (Id. at 415-16.) She was to have endoscopies to investigate her gastrointestinal
(GI) complaints and wear a Holter monitor to investigate her reports of palpitations. (Id.)
Plaintiff wore the monitor; the monitor revealed no complex ectopy (a disturbance of the
cardiac rhythm). (Id. at 430-35.)
When seeing Plaintiff on June 29, Dr. Barbagiovanni informed her that her stomach
biopsy showed chronic gastritis. (Id. at 425.) He opined that her symptoms were related to
chronic abdominal pain and IBS. (Id.) The next day, Dr. Leimbach informed Plaintiff that
her ANA test was low positive and her echocardiogram was normal. (Id. at 413-14.) He
reported that her palpitations were gone due to her current medication and her abstaining
from caffeine. (Id. at 413.) Dr. Leimbach started Plaintiff on Savella, used to treat
In July, Dr. Leimbach saw Plaintiff and noted that she had gone to the emergency
room for asthma and was now using an albuterol inhaler. (Id. at 411-12.) He was going to
try to get her neurosurgical appointment moved up from its current setting in October. (Id.
On August 7, Plaintiff again saw Dr. Leimbach, complaining of worsening back pain
and of right hip pain and explaining that she was no longer able to work because of the pain.
(Id. at 409-10, 445.) X-rays of her right hip showed no acute osseous abnormalities. (Id. at
445.) He prescribed Skelaxin, a muscle relaxant, and referred her to a rheumatologist. (Id.
Four days later, Plaintiff went to Ernest Wallace, M.D., also with QMG, for her
complaints of feeling bad and having palpitations and clammy feelings. (Id. at 424.) Also,
she was very fatigued. (Id.) Lab work was normal. (Id.) She was given a trial of prednisone
and was to follow up with her primary physician. (Id.)
On Dr. Leimbach's referral, Plaintiff saw a physical therapist, Kristin Shaffer, on
August 13. (Id. at 407-08.) Plaintiff reported that she had been having occasional right hip
pain since falling fifteen years earlier. (Id. at 407.) The pain was currently a six on a tenpoint scale but could increase to a nine. (Id.) Plaintiff was to have physical therapy two or
three times a week for four weeks. (Id.) Plaintiff did so, having seven sessions between
August 13 and September 11. (Id. at 399-400, 403-06, 426.) After the September 11 session,
Plaintiff did not schedule any further visits pending a follow-up appointment with Dr.
Leimbach. (Id. at 426.) Aquatic therapy was recommended. (Id.)
On August 28, while participating in physical therapy, Plaintiff saw Dr. Leimbach,
reporting that her fibromyalgia symptoms were better on the Savella. (Id. at 401-02, 444.)
She was advised to take the medication only once a day to avoid any side effects. (Id. at 401.)
Also, she was having right ankle pain and random hot flashes. (Id.) An x-ray of the ankle
showed degenerative changes. (Id.)
Plaintiff consulted Dennis Ozment, M.D., a rheumatologist with QMG, on September
14. (Id. at 396-98.) Plaintiff reported she had been in good health until having a miscarriage
fifteen years earlier. (Id. at 396.) After examining Plaintiff, Dr. Ozment concluded that her
symptoms were related to fibromyalgia given the number of symptoms she had had for at
least ten to fifteen years without developing crippling arthritis or end organ damage. (Id. at
397.) He agreed with the prescription for Savella and added Lyrica, also used in the
treatment of fibromyalgia. (Id.) Plaintiff was to call in two weeks and return in two months.
Plaintiff saw Dr. Leimbach the next day, complaining of side effects from the Savella.
(Id. at 394-95, 443.) A CT scan of her abdomen revealed fatty infiltration of the liver;
unremarkable kidneys, ureters, and bladder; and no acute inflammatory process of the
abdomen or pelvis. (Id. at 443.) The Savella was stopped and Plaintiff was to call the next
day to report whether her symptoms had improved. (Id. at 395.) Also, her urine was to be
checked for causes of unspecified symptoms. (Id.)
On Dr. Leimbach's referral, Plaintiff was seen on September 18 by Steve Rosen, P.A.,
with the QMG, for pelvic pain, abdominal bloating, and low back pain. (Id. at 422-23, 442.)
Her symptoms and examination findings were suggestive of chronic cystitis. (Id. at 422.) A
chest x-ray identified no active pulmonary disease. (Id. at 442.) She was to have a
cystoscopy with hydrodistention of the bladder to rule out interstitial cystitis. (Id. at 422.)
Plaintiff returned to Dr. Leimbach on October 14 for her complaints of abdominal
pain, fatigue, fibromyalgia, and hypothyroidism. (Id. at 392-93.) He noted that Plaintiff
could not tolerate the Savella and recommended that Lyrica be considered if she was not
better within the week. (Id. at 393.) He prescribed amitriptyline for her fibromyalgia and for
her IBS. (Id.)
Two weeks later and four weeks after undergoing hydrodistention, Plaintiff consulted
a urologist, Randall Dooley, M.D., with the QMG. (Id. at 390-91.) She reported some
improvement on a medication, Elmiron, although she still had some urgency, frequency, and
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dysuria. (Id. at 390.) Dr. Dooley recommended she continue on the Elmiron and return in
three months. (Id.)
Two days later, Plaintiff saw a neurosurgeon, Arden Reynolds, M.D. (Id. at 386-89.)
He described her complaints as being of "symptoms involving every part of her body
including the roots of her hair. There is not a single intervention that has been tried over the
last decade which has not made matters worse and there has been a steady inexorable
progression downward in terms of function." (Id. at 386.) Regardless, "she does not give a
single description which is consistent with a neurologic origin of her pain." (Id.) Her
illnesses included asthma, chronic fatigue syndrome, and hypertension. (Id.) He twice
attempted a review of her symptoms, but Plaintiff gave a positive response to every question;
consequently, he concluded that he could not vouch for the reliability of a review. (Id. at
387.) On examination, Plaintiff had normal muscle bulk and usual tender spots for
fibromyalgia. (Id. at 388.) Straight leg raises were negative to 90 degrees bilaterally and
there was no cervical or lumbar paravertebral muscle spasm. (Id.) She was oriented to time,
place, and person with a normal remote and recent memory, but was depressed. (Id.) Her
speech, attention span, concentration, gait, and motor examination were all normal. (Id.) A
sensory exam was unreliable. (Id.) Dr. Reynolds assessed Plaintiff as having fibromyalgia,
depression, and somatic preoccupation. (Id. at 389.) There was no evidence of neurologic
dysfunction. (Id.) His recommendation was that there be as little intervention as possible
because it would not be successful but would cause complications and "further her disability."
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The following month, Plaintiff consulted an Iowa neurologist, Nidal Alkurdy, M.D.,
and was diagnosed as "most likely [having] fibromyalgia and widespread muscle and
probably some arthritic pain." (Id. at 321-22.) She was to be scheduled for a nerve
conduction study of her right lower extremity. (Id. at 322.) Plaintiff cancelled the
appointment for the study because she was waiting for disability to pay the coinsurance. (Id.
at 323.) One week later, Plaintiff told Dr. Leimbach that a neurologist in Iowa had agreed
with a diagnosis of fibromyalgia. (Id. at 384-85.) She appeared to be in better spirits. (Id.
When seeing Plaintiff in December, Dr. Alkurdy noted that an MRI of Plaintiff's
cervical, lumbosacral, and dorsal spine showed some spondylosis, "more prominently in the
dorsal spine level." (Id. at 323.) Review of her symptoms was positive for sinus pain,
palpation, swelling of her legs, shortness of breath, stomach pain, diarrhea, burning with
urination, back and joint pain, and anxiety. (Id.) She was started on Neurontin. (Id. at 324.)
In January 2010, Plaintiff reported to Dr. Alkurdy that her symptoms had partially
improved on her current medications with side effects of sedation. (Id. at 325.) He noted that
she was being treated for interstitial cystitis with complaints of flank and abdominal pain,
diarrhea, and burning with urination. (Id.) He referred her for physical and pool therapy and
started her on Cymbalta in addition to her other medications. (Id.)
Two days later, Plaintiff reported to Dr. Dooley that the Elmiron was helping. (Id. at
376-79.) She was also taking gabapentin (the generic form of Neurontin) prescribed by a
neurologist and would soon start taking Cymbalta. (Id. at 376.) She had complaints of
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abdominal bloating, abdominal and back pain, and generalized malaise and fatigue. (Id.) She
had been diagnosed with fibromyalgia. (Id.) Plaintiff was to have a renal bladder sonogram
to determine whether there was any renal pathology causing her flank pain. (Id. at 377.) The
sonogram was normal. (Id. at 379.)
When seeing Plaintiff in April, Dr. Alkurdy recommended that her Cymbalta dosage
be increased. (Id. at 326.)
In May, Plaintiff reported to Dr. Alkurdy an overall improvement in her pain. (Id. at
327.) She was continued on her current dosage of Cymbalta. (Id.)
Plaintiff returned to Mr. Rosen in July, reporting that the Elmiron was becoming less
effective. (Id. at 373-75.) Mr. Rosen described her urinary and pelvic pain symptoms as
stable and better on the medication. (Id. at 374.) She was to try Enablex, used to treat
symptoms of an overactive bladder, in addition to the Elmiron; was to look for dietary cues
for foods that exacerbate her symptoms; and was to return in six to eight months for a followup appointment with Dr. Dooley. (Id.)
The same day, Plaintiff saw Kelly Rife, A.P.N., with the Hancock County Health
Department, for complaints of chronic fatigue that had started gradually two years earlier,
"moderately limit[ed] [her] activities," and was exacerbated by stress and medication. (Id.
at 330-31.) Plaintiff also complained of diarrhea and back pain – the pain being constant;
moderate; exacerbated by prolonging standing or sitting, lifting, bending, and twisting; and
relieved by rest, recumbency, and nonsteroidal anti-inflammatory drugs (NSAIDs) – but had
no gait abnormality. (Id. at 330, 331.) Plaintiff also complained of depression, but not
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anxiety. (Id. at 331.) She was diagnosed with diarrhea and unspecified myalgia (muscle
pain) and myositis (inflamed muscles) and was to return in two weeks. (Id.)
Plaintiff did return. (Id. at 332-33.) She was to go on a gluten-free diet and was
provided with paperwork to apply for assistance with paying for prescription medications as
she was losing her Medicaid coverage at the end of the month. (Id. at 333.) The only
diagnosis listed was diarrhea. (Id.)
When Plaintiff next saw Dr. Leimbach, on August 17, she reported having no chest
pain, no abdominal pain, no dysuria, no neck or back pain, no muscle or joint pain, no
difficulty sleeping, no anxiety or depression, and no paresthesia. (Id. at 370-71, 383.) She
did have diarrhea. (Id. at 370.) Dr. Leimbach observed that she had mild chest wall
tenderness, felt bloated, and was looking healthy. (Id. at 371.) She was to follow-up with her
primary care doctor and was not scheduled for a follow-up with him. (Id. at 372.)
Five days later, Dr. Alkurdy saw Plaintiff for her complaints of pain, mainly in her toes
and ankles and some swelling; no changes were made to her medications. (Id. at 328.)
In September, Plaintiff consulted Ms. Rife about the myalgia in her left hip and leg,
feet, and back. (Id. at 334-35.) She had difficulty sleeping and took naps throughout the day
due to fatigue. (Id. at 334.) She had shortness of breath with exertion and also complained
of depression, weakness, a gait abnormality, and pain in her neck, shoulders, wrists, hips,
legs, knees, ankles, and feet. (Id.) On examination, she was in distress secondary to pain and
was tender at her right elbow, both wrists, and right thigh, lower leg, ankle, and foot. (Id. at
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335.) Plaintiff was started on prednisone. (Id.) Ms. Rife hoped to refer her to the Mayo
Clinic if her medical coverage was reinstated. (Id.)
In October, Plaintiff returned to Ms. Rife for treatment of her chronic, daily fatigue.
(Id. at 336-37.) She also complained of depression, paresthesia ("pins and needles" feelings),
and neck and back pain, but denied chest pain and shortness of breath. (Id. at 336.) On
examination, she had a normal mood and affect, was well-groomed, and had a normal gait.
(Id.) Weight loss and exercise were discussed. (Id. at 337.) She was diagnosed with
malaise/fatigue and unspecified myalgia and myositis and was to return in three months. (Id.)
Plaintiff returned in two months with complaints of chronic fatigue and back pain. (Id.
at 338-39.) On examination, she was tender at her thoracic and lumbar spines. (Id. at 339.)
She was diagnosed with back pain and constipation and was encouraged to exercise. (Id.)
Plaintiff again saw Ms. Rife in March 2011 for chronic fatigue, worse since she broke
her ankle, and diffuse myalgia. (Id. at 340-41.) She was tender at her cervical spine and her
right lower extremity. (Id. at 341.) Ms. Rife discussed with Plaintiff her fatigue being a
likely side effect of her medication, but Plaintiff did not want to decrease the medication due
to her chronic pain. (Id.) Her diagnoses were unchanged, with the exception of the fractured
ankle being added. (Id.)
Two weeks later, Plaintiff went to the Blessing Hospital Outreach Clinic (the Clinic)
to establish care. (Id. at 482-84.) She named fibromyalgia and chronic fatigue syndrome as
her diagnoses, for which she was not taking any medication. (Id. at 482.) Since having
carpal tunnel release surgery, she had problems extending the fingers of her right hand. (Id.)
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She also had been told she has degenerative disc disease; hypothyroidism, for which she takes
levothyroxine; and interstital cystitis, for which she takes Elmiron and Enablex. (Id.) She
had a fractured ankle from a fall four weeks earlier and was to follow up with a Dr. Wheeler
in two weeks. (Id.) She had been using a treadmill for a total of twenty to thirty minutes a
day until injuring her ankle. (Id.) She reported difficulty falling asleep during the day and
staying asleep at night. (Id. at 483.) She thought she had low energy. (Id.) She also reported
chest pain, palpitations, dyspnea with exertion, leg pain when she walked, diarrhea, bloating,
indigestion, abdominal pain, urinary frequency, and multiple joint and muscle pains. (Id.)
After examining Plaintiff, the clinician, Julie Barry, C.N.P., assessed her as having interstitial
cystitis, hypertriglyceridemia, asthma with environmental allergies, chronic pain, and a
fracture of the right ankle. (Id. at 483-84.) All but the fracture were by patient report. (Id.)
Ms. Barry was to obtain Plaintiff's medical records, and Plaintiff was to return in four weeks.
(Id. at 484.)
Plaintiff returned six weeks later, on May 19, complaining of right knee and ankle
pain, although she reported that a Dr. Wheeler had told her her ankle was healing well. (Id.
at 485-86.) Also, she generally did not feel well. (Id. at 485.) On examination, she was alert,
oriented, and in no acute distress. (Id.) She had no edema in any of her joints, a full range
of motion, and an upright, steady, and unassisted gait. (Id.) An x-ray of her right knee was
normal. (Id. at 508.) Lovastatin (to reduce levels of low-density lipoprotein (LDL)) was
added to her prescriptions. (Id. at 485.)
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On June 1, Plaintiff saw Mr. Rosen for her complaints of increased lower abdominal
discomfort and pressure and mild dysuria for the past few weeks. (Id. at 366-68.) She had
right flank and chronic back pain and was having some mild increased frequency and urgency
in urination. (Id. at 366.) She was to have a urinalysis and renal ultrasound and remain on
Elmiron and Enablex in the interim. (Id. at 367.)
On June 21, Plaintiff complained to Ms. Barry of acid reflux, sinus problems,
decreased vision, fatigue, and "multiple aches and pains, especially in her right hand, right
groin, and back." (Id. at 487-88.) She had stopped taking the lovastatin because of side
effects of muscle cramps. (Id. at 487.) Her dosage of Neurontin was increased; ranitidine
(for treatment of ulcers and acid reflux) was added to her medications. (Id.) Ms. Barry had
not yet received Plaintiff's medical records. (Id.)
Three days later, Plaintiff underwent a renal ultrasound to investigate her history of
chronic interstitial cystitis; the ultrasound was normal. (Id. at 382.)
In August, Plaintiff consulted an opthamologist, Kevin Becker, O.D., with QMG,
reporting that she was bothered by lights at night. (Id. at 364-65, 380-81.) She was
diagnosed with allergic conjunctivitis, given eye drops to be applied once or twice a day, and
was to follow-up in a year or two. (Id. at 365.)
One week later, Plaintiff saw Ms. Barry for complaints of multiple muscle pains,
bloating, sleepiness, and nausea. (Id. at 489-90.) The examination findings were as before.
(Id. at 489.) Her Neurontin dosage was reduced, and Plaintiff was to have an ANA panel
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Plaintiff was admitted to Blessing Hospital on September 1 after experiencing atypical
(Id. at 344-55.)
Tests, including a chest x-ray, echocardiogram, and
electrocardiogram, ruled out a myocardial infarction. (Id. at 344, 347-50.) The admitting
physician, Malcolm Findlater, M.D., discussed with Plaintiff his opinion that an underlying
anxiety disorder was causing the problem and recommended she discuss it with Ms. Barry.
(Id. at 344.) Plaintiff was discharged home the next day. (Id.)
Plaintiff did see Ms. Barry the next week for joint stiffness, diarrhea, and dark, patchy
spots on her right forearm and chin. (Id. at 491.) The relationship between Plaintiff's anxiety
and her physical symptoms was discussed. (Id.) Plaintiff agreed to see a counselor, Claudia
Lasys, M.S.W., L.C.S.W. (Id. at 491.)
When Ms. Lasys met with Plaintiff on September 14, she described her as presenting
"with a fairly significant level of anxiety." (Id. at 492.) She found it difficult to distinguish
between what had been diagnosed and what Plaintiff felt she had. (Id.) She noted that
Plaintiff appeared to be willing to employ the strategies suggested to help lessen her anxiety,
e.g., reducing her caffeine intake, but appeared to be more interested in talking about her
health issues than in listening. (Id.) She also noted that Plaintiff reported she was not
socially isolated, lived with her boyfriend, and "continue[d] to re-plead cases to attain a
disability status." (Id.) Plaintiff was to return in two weeks. (Id.)
Plaintiff returned to Ms. Barry on September 22 for complaints of fatigue and an
aching back and right foot. (Id. at 493-94.) Plaintiff's report of having an allergic reaction
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to the Savella and Lyrica prescribed for fibromyalgia – not listed by Ms. Barry as a diagnosis
– was to be investigated. (Id. at 493.) Her dosage of Cymbalta was increased. (Id.)
When seeing Ms. Lasys six days later, Plaintiff was described as "more calm, very
lethargic." (Id. at 495.) She was oriented to time, place, and person; was "minimally
cooperative"; repeatedly talked about how lethargic she was; and had a fairly labile affect
(rapid shifts in emotion). (Id.) Ms. Lasys rated Plaintiff's Global Assessment of Functioning
(GAF) as 50.2 (Id.) Plaintiff's major concern was her pain and her disability claim. (Id.) She
denied depression. (Id.) She was diagnosed with anxiety disorder. (Id.) On a scale of one
to five, Plaintiff rated her anxiety as a two. (Id.) Ms. Lasys described Plaintiff as being
"fairly resistant to any recommendations made." (Id.)
Plaintiff had a full range of affect when she saw Ms. Lasys on October 26. (Id. at
496.) Ms. Lasys worked with Plaintiff to shift her thinking about pain and what is wrong
with her to what she can do, including physical therapy. (Id.)
Plaintiff reported to Ms. Barry on November 3 that the pain in her back and neck that
had recently increased and she was suffering from nausea, vomiting, and bloating. (Id. at
497-98.) She had not yet received the increased dosage of Cymbalta. (Id. at 497.)
"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).
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Cyclobenzaprine, a muscle relaxant, was prescribed. (Id.) Ms. Barry found it to be unclear
from Plaintiff's report which of two blood pressure medications she was taking, although she
had not been prescribed either recently. (Id.)
Plaintiff reported to Ms. Lasys on November 30 that she had benefitted from physical
therapy, but the therapy sessions had not been rescheduled after the department had been
bought out. (Id. at 499.) Ms. Lasys noted that this was the first time that Plaintiff had any
positive remarks about her physical condition. (Id. at 499.) Plaintiff had no concerns about
her anxiety levels and was to return as needed. (Id.)
The same day, Plaintiff saw Mr. Rosen about her persistent urinary frequency and
urgency. (Id. at 361-63.) She described her primary symptom as unchanged. (Id. at 361.)
Her Elmiron dosage was continued; her dosage of Enablex was increased. (Id. at 363.) She
was to return in four or six weeks. (Id.)
Plaintiff reported to Ms. Barry on December 15 that she was using cyclobenzaprine
only very occasionally and had not noticed any difference with the increased dosage of
Cymbalta. (Id. at 500-01.) Plaintiff further reported that the physical therapy would
temporarily help but the pain would return in a few days. (Id. at 500.) She was vague about
why the therapy had ended. (Id.) Her Cymbalta dosage was decreased and Plaintiff was
encouraged to take the muscle relaxant. (Id.) Plaintiff was referred to Dr. Espejo for pain
management. (Id. at 500, 513.)
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When next seeing Mr. Rosen, on January 9, 2012, Plaintiff informed him she had not
yet started taking the increased dosage of Enablex. (Id. at 478-80, 577-80.) She was to do
so and return in four weeks. (Id. at 479.)
The next day, Plaintiff saw Dr. Barbagiovanni, complaining of constant diarrhea and
pain and burning with bowel movements for the past few months. (Id. at 475-77, 573-76.)
Her current medications included albuterol, amitriptyline, aspirin, cyclobenzaprine, Cymbalta,
Elmiron, Enablex, hydrocortisone, levothyroxine, loratadine, Mag-Oxide, nabumetone (a
NSAID), Neurontin, and Nexium. (Id. at 475-76.) Her height was 5 feet 7 inches; her weight
was 230 pounds. (Id. at 476.) On examination, she was alert and oriented and did not appear
to be in distress. (Id.) Rectal examination findings suggested dermatitis. (Id. at 476-77.) He
suspected that her discomfort was related to a rash and prescribed an antidiarrheal
medication, Lomotil. (Id. at 477.)
Plaintiff went to the emergency room at Blessing Hospital on January 30 for
complaints of nausea, vomiting, and pain that was an eight on a ten-point scale. (Id. at 643,
645, 666-67.) On examination, she was alert and oriented to time, place, and person; was
appropriate; and was not in acute distress. (Id. at 666.) An electrocardiogram showed
nonspecific abnormalities. (Id. at 643.) An ultrasound of her lower extremities was negative
for bilateral deep venous thrombosis and showed normal compression and augmentation. (Id.
at 645.) Plaintiff was diagnosed with sinusitis and vomiting, treated, and discharged. (Id. at
667.) The emergency room course was described as "uneventful." (Id.)
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In February, Plaintiff reported to Mr. Rosen that she had had no significant
improvement in her urinary frequency and urgency on the increased dosage of Enablex. (Id.
at 569-72, 647.) He described her urinary symptoms as being stable and unchanged over the
past couple years. (Id. at 569.) The Enablex was returned to its original dose. (Id. at 571.)
Plaintiff was to contact him after her gastrointestinal work-up. (Id.)
Plaintiff saw Maria Carolina Espejo, M.D., on March 6 for pain all over, fatigue, and
weakness. (Id. at 686-90.) Dr. Espejo noted that she had seen Plaintiff in 2009. (Id. at 686.)
Plaintiff reported that her pain syndrome was worsening. (Id. at 687.) On a scale from one
to ten, her pain was a nine at its worst, a six to eight at its least, and currently a seven to eight.
(Id.) She was applying for disability because she could not do anything without aggravating
her pain. (Id.) Her back pain was aggravated by standing and walking and slightly relieved
by lying down. (Id.) She thought the Cymbalta and Neurontin she took helped. (Id.) Her
weight was 227 pounds. (Id. at 688.) On examination, her mood and affect were normal and
she was oriented to time, place, and person. (Id.) She had diffuse tenderness in her cervical
to lower lumbar spine on palpitation and was painful everywhere she was touched. (Id.) She
had a normal range of motion in her hips and her lumbar and cervical spine, but reported
discomfort on forward flexion. (Id.) Her muscle bulk, tone, and strength were normal in all
extremities. (Id.) She had an antalgic gait from the right ankle fracture, but was able to toe
and heel walk. (Id.) Straight leg raises and a Spurling test were negative. (Id. at 689.) Her
abdomen was distended; her fingers were swollen but not warm. (Id.) Dr. Espejo put
Plaintiff on a short-term course of prednisone. (Id.) She opined that Plaintiff's multiple
- 22 -
physical complaints could be attributed to her fibromyalgia and depression but wanted to
make sure nothing more inflammatory was causing her symptoms. (Id.) She explained to
Plaintiff that the consultation was for an evaluation and treatment and not for a disability
evaluation. (Id.) Plaintiff understood. (Id.)
Plaintiff first reported to Ms. Barry when seeing her in April that the prednisone
prescribed by Dr. Espejo had helped a lot and then said it had helped "maybe a little." (Id.
at 584-85, 650-51.) She could not turn her head and her gums were bleeding. (Id. at 584.)
On examination, she was alert and oriented, did not appear to be in acute distress, had an
upright and steady gait, and had no joint edema. (Id.) An anti-inflammatory was prescribed
and, as recommended by Dr. Espejo, a dermatology referral was made. (Id.) Ms. Barry noted
that the referral would have to be in Peoria because Dr. Ozment did not want to see Plaintiff.
Plaintiff was seen by Dr. Becker twice in May for refitting and adjustments to her
contact lens. (Id. at 563-65, 566-68.)
At her June 5 visit, Ms. Barry noted that Plaintiff had no difficulty arising from a
seated to standing position. (Id. at 586-87.) Plaintiff was encouraged to use an elastic ankle
sleeve so she could walk and get exercise. (Id. at 586.) X-rays were to be obtained of her
cervical and thoracic spines to investigate her complaints of back pain. (Id.) The x-rays of
her cervical spine showed minor degenerative changes at C4-C5 and were otherwise negative.
(Id. at 601, 652.) The x-rays of her thoracic spine showed minor degenerative spurring and
were otherwise negative. (Id. at 601-02, 652-53.)
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An MRI of Plaintiff's right ankle taken on June 13 showed mild tenosynovitis of the
tibialis posterior; soft tissue swelling overlying the medial aspect of the ankle and a small
amount of bone marrow edema within the medial aspect; osteoarthritis in the bone joint; and
a plantar calcaneal spur and some adjacent thickening of the plantar fascia. (Id. at 603, 654.)
Plaintiff underwent a work-up by Sonu Dhillon, M.D., on June 19 to evaluate
abnormal liver function tests. (Id. at 522-45.) Dr. Dhillon concluded that the underlying
etiology of Plaintiff's "multiple medical complaints" was unclear. (Id. at 544.) He noted that
her liver function tests had been normal in 2011 and had since modestly increased. (Id.) He
opined that the cause was probably non-alcoholic steatohepatitis (NASH); active hepatitis
was also a possibility. (Id.) Her liver function was to be continued to be monitored. (Id.)
Her complaints of abdominal cramps, bloating, and diarrhea were probably caused by IBS
with small bowel bacterial overgrowth being an additional problem. (Id.) An ultrasound of
her abdomen revealed a fatty liver. (Id. at 640-41.) Plaintiff was prescribed amitriptyline,
bentyl, and an antibiotic and was to return in three months. (Id. at 544.)
On June 24, Plaintiff had a work-up by Kathleen Voelker, N.P. at a Rheumatology
Clinic for evaluation of symptoms Plaintiff described as having begun ten years earlier and
being worse for the past three years. (Id. at 622-29.) On a scale from one to ten, her pain was
a five to nine. (Id. at 623.) She had been diagnosed at the Mayo Clinic with hypothyroidism.
(Id.) She wondered whether she had diabetes. (Id.) When questioned, Plaintiff answered
"yes" to questions whether she could walk on flat ground, bend to pickup something, walk
two miles, and had trouble sleeping. (Id. at 626.) On examination, Plaintiff had full strength
- 24 -
in her extremities, no tenderness or welling in her joints, no lack of range of motion, a good
grip strength, and 18/18 tender points. (Id. at 627.) Ms. Voelker thought her symptoms were
consistent with central sensitization or fibromyalgia. (Id. at 628.) She recommended water
therapy and regular water exercise and regular, appropriate exercise.
(Id.) She also
recommended that her primary care physician consider Savella instead of Cymbalta. (Id. at
629.) Plaintiff was to return in two months to review lab work. (Id.)
Ms. Barry encouraged Plaintiff on July 24 to continue with her exercise. (Id. at 58889.)
Plaintiff was seen at the Blessing Hospital emergency room in September and later that
month by Ms. Barry for sinusitis and ear pain. (Id. at 590-91, 672-75.) Ms. Barry prescribed
another antibiotic. (Id. at 590.)
In November, Plaintiff consulted Ms. Barry about pain in her right leg for the past
month that radiated from her back. (Id. at 592-93.) The injection given her in the emergency
room3 had helped for four or five days. (Id. at 592.) She was trying to exercise, but could do
so only ten to twenty minutes at a time due to fatigue. (Id.) Also, she had problems with her
left shoulder due to an earlier injury. (Id.) An x-ray was to be obtained, and when done
showed minimal osteoarthritic changes without acute fracture or dislocation. (Id. at 592, 604,
659.) On examination, Plaintiff had equal strength in all extremities, a steady gait, and no
pain on palpitation of her spine. (Id. at 592.)
See Id. at 676-79.
- 25 -
Later that month, Plaintiff returned to Dr. Dhillon.4 (Id. at 546-54.) Noting that the
ultrasound had revealed a fatty liver, he concluded that Plaintiff's hepatic dysfunction was
caused by NASH. (Id. at 553.) He further noted that the work-up for chronic liver disease
was negative. (Id.) He encouraged her to lose weight5 and to engage in moderate exercise.
(Id.) He thought her nausea was related to the various medications she was taking for her
other physical ailments. (Id. at 554.) Plaintiff was to return in six months. (Id.)
The same day, Plaintiff complained to Ms. Voelker of fatigue, joint pain, and right hip,
left shoulder, and back pain. (Id. at 629-31.) She was only doing water exercise every three
months because there was no pool nearby. (Id. at 629.) She was to try Plaquenil. (Id. at
630.) If that was of no help with her hand pain and stiffness, it was to be assumed that her
arthralia was related to fibromyalgia and the Plaquenil would be stopped. (Id.) On
examination, she had good grip strength and no joint swelling in her extremities. (Id. at 631.)
When examined by Dr. Becker in January 2013, Plaintiff had correctable visual acuity;
she was to return in one year. (Id. at 560-62.)
Plaintiff saw Ms. Barry at the end of the month for a variety of complaints, including
that her right leg gave out on her after she walked approximately twenty minutes on a
treadmill. (Id. at 594-95.) She had gained eight pounds. (Id. at 594.) On examination, she
had a steady gait and equal strength in her extremities. (Id.) She was given exercises for
stretching her shoulder. (Id.)
These records were also submitted to the Appeals Council.
Her weight was then 221 pounds. (Id. at 552.)
- 26 -
Plaintiff reported to Ms. Voelker on February 28 that the Plaquenil had not alleviated
her hand pain. (Id. at 614-22.) And, she had more neck and back pain and fatigue. (Id. at
619.) She was walking for twenty minutes every day on the treadmill. (Id.) She was to be
referred for physical therapy and for a sleep study, following which she was to return to the
clinic. (Id. at 620.)
One month later, Plaintiff complained to Ms. Barry of fatigue and urinary frequency
and burning. (Id. at 596-97.) She was referred to physical therapy. (Id. at 596.)
Consequently, she was evaluated for physical therapy on April 4. (Id. at 693-95.)
Plaintiff wanted to focus on her neck pain. (Id. at 695.) She had a full range of motion in her
lumbar and cervical spine with the exception of a 50 percent reduction in the rotation of her
cervical spine to the left. (Id. at 693.) The goal was to increase it to 80 percent and decrease
her pain level to a three. (Id.) The plan was for Plaintiff to have two visits a week for four
weeks. (Id. at 693.) She had physical therapy sessions on April 9, 16, 23, and 30. (Id. at
698-705.) She was re-evaluated on April 30. (Id. at 706-08.) Neither goal had been
achieved; it was recommended she continue with one visit a week for four weeks. (Id.) She
had a session on May 7, 14, and 29. (Id. at 706-10, 722-24.) She was re-evaluated on May
29 and reported that she had been feeling "pretty good" until injuring her lower back in a fall
the previous week. (Id. at 722-24.) Again, she was to participate in physical therapy once
a week for four weeks. (Id.) At the second such session, on June 18, the rotation of her
cervical spine to the left was 100 percent and her pain was a seven. (Id. at 727-29.) This was
- 27 -
the first change noted in the session reports. Plaintiff reported that her neck was doing "much
better," but still had occasional pain in low back and right foot. (Id. at 727.)
During the period when she was doing physical therapy, she had a sleep study and was
found not to meet the criteria for obstructive sleep apnea. (Id. at 605-07, 660-62, 682, 74547.) The study did reveal snoring; weight loss was recommended.
Plaintiff saw Ms. Voelker on July 18, reporting that she had been seeing a counselor
but was discharged after six weeks and "told to 'forget about her pain.'" (Id. at 731-40.) Ms.
Voelker increased Plaintiff's vitamin D dosage, referred her to a pain clinic for consideration
of injections, and advised her to seek counseling and to review a website about fibromyalgia
to help her manage her symptoms. (Id. at 737.) Plaintiff was to return in three months. (Id.)
MRIs of her lumbar and cervical spines taken at Ms. Voelker's direction were normal. (Id.
at 739-40, 742-43.)
A CT scan taken on July 22 of Plaintiff's sinuses to investigate her snoring revealed
minimal mucosal thickening with the left maxillary sinus and a mild nasal septal deviation
of the mid nasal septum to the left. (Id. at 757.)
When seeing Plaintiff on July 31 for a follow-up, Ms. Barry scheduled her for
counseling. (Id. at 751-54, 758-59.)
MRIs of Plaintiff's cervical and lumbar spines taken in August were normal.6 (Id. at
These records were also submitted to the Appeals Council.
- 28 -
Also before the ALJ were assessments of Plaintiff's mental and physical residual
In January 2012, a Disability Determination Explanation was completed at the initial
level. (Id. at 71-94.) Kenneth Burstin, Ph.D., assessed Plaintiff's mental abilities. (Id. at 7576, 87-89.) Her restrictions of activities of daily living, difficulties in maintaining social
functioning, and difficulties in maintaining concentration, persistence, or pace were all mild.
(Id. at 76, 88.) She had not had any repeated episodes of decompensation of extended
duration. (Id.) Assessing Plaintiff's physical abilities, Natalie Kemna, a single decisionmaker,7 concluded that Plaintiff could occasionally lift twenty pounds, frequently lift ten, and
stand, sit, or walk each for a total of six hours in an eight-hour day. (Id. at 77-78, 89-90.)
She could occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs. (Id.
at 78, 90.) She could not climb ladders, ropes, or scaffolds. (Id.) She did not have any
manipulative, visual, or communicative limitations.
(Id. at 78-79, 90-91.)
environmental limitations of having to avoid concentrated exposure to vibrations, airborne
irritants and poor ventilation, and hazards. (Id. at 79.)
This Explanation was reviewed in April 2012 by Phaedra Caruso-Radin, Psy.D., and
M. Legarda, M.D., and affirmed. (Id. at 518-21.)
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).
- 29 -
In May 2013, a psychiatric evaluation of Plaintiff was performed by Jeffrey Harden,
D.O., at request of Clark County Division of Family Services. (Id. at 712-14.) Plaintiff
reported that she was disabled by leg and back pain and by shortness of breath. (Id. at 712.)
She occasionally suffered from depression caused by her worsening health. (Id.) She had
spells of anxiety caused by specific fears or situations. (Id.) She was taking Cymbalta, but
it was prescribed for her pain and not for her depression. (Id.) She could do some cooking,
housecleaning, and shopping, but these activities were significantly limited by her pain. (Id.)
On examination, Plaintiff had "a somewhat slow gait and maintained a somewhat stiff and
uncomfortable posture apparently secondary to ongoing back pain." (Id. at 713.) She was
cooperative and had a sad mood and logical thought processes. (Id.) Her insight and
judgment were appropriate; her abstract thought and general fund of information were
adequate; her concentration was poor. (Id.) She reported having mood swings triggered by
stress and lasting between a few minutes to hours. (Id.) Dr. Harden diagnosed Plaintiff with
recurrent major depressive disorder and generalized anxiety disorder with panic attacks. (Id.
at 714.) Her GAF was 60.8 (Id.) He recommended she see a mental health professional.
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
- 30 -
The ALJ's Decision
The ALJ first found that Plaintiff met the insured status requirements of the Act
through December 31, 2014, and has not engaged in substantial gainful activity since October
5, 2011, the day after the previous adverse decision was entered. (Id. at 14.) She has severe
impairments of obesity, history of interstitial cystitis, depression, anxiety, fibromyalgia,
status-post carpal tunnel syndrome surgery with morning stiffness, and degenerative disc
disease of the lumbar, thoracic, and cervical spines. (Id.) She also has a history of
hypothyroidism, NASH, and asthma. (Id. at 15.) These impairments are not severe. (Id.)
She does not have an impairment or combination thereof that meets or medically equals an
impairment of listing-level severity. (Id.)
Addressing Plaintiff's mental impairments, the ALJ concluded that she has mild
restrictions in her activities of daily living. (Id. at 16.) For instance, she prepares small
meals, handles money, and attends church. (Id.) Her hygiene is not deficient. (Id.) She has
moderate difficulties in social functioning. (Id.) She has limitations in interacting and
relating with coworkers and the general public. (Id.) She also has moderate difficulties with
regard to concentration, persistence, or pace. (Id.) She has not had any episodes of
decompensation of extended duration. (Id.)
The ALJ next determined that Plaintiff has the residual functional capacity (RFC) to
perform light work with limitations of lifting or carrying no more than ten pounds and of
needing to alternate at will every forty-five minutes between standing, sitting, and walking
without leaving her work station. (Id. at 17.) Also, she can occasionally balance, stoop,
- 31 -
kneel, crouch, crawl, and climb ramps and stairs, but should never climb ropes, ladders, or
scaffolds. (Id.) She should avoid concentrated exposure to work hazards, e.g., moving
machinery and unprotected heights, and to airborne irritants. (Id.) She should have no more
than frequent use of her hands to grip, grasp, or handle and should only occasionally perform
overhead reaching. (Id.) She needs to briefly use the restroom every hour. (Id.) She should
have no more than occasional interaction with the public. (Id.)
In determining Plaintiff's RFC, the ALJ assessed her credibility. (Id. at 18-23.) After
summarizing the information given by Plaintiff when applying for DIB and SSI, appealing
the initial adverse decision, and testifying, the ALJ reviewed the medical records and found
that Plaintiff's medical treatment had not significantly increased after October 4, 2011, and
was limited to outpatient medication management and physical therapy. (Id. at 18-20.) She
had not followed through on referrals to counseling. (Id. at 20.) The clinical signs and
diagnostic findings did not support her subjective complaints. (Id.) For instance, in March
2012, she reported constant pain and weakness but was found to have a normal range of
motion in her spine and hips, no swelling in her extremities, normal muscle bulk and tone,
and a normal gait and station. (Id.) She had a steady gait the next two months also and no
lack of range of motion. (Id. at 20-21.) She has not been found to have strength deficits in
her extremities. (Id. at 21.) There was nothing in the record to suggest that her interstitial
cystitis had significantly worsened since the previous decision. (Id.) And there was no
evidence of any residual effects from her carpal tunnel release surgery. (Id.) Her weight had
not significantly increased since March 2011, when she weighed 219 pounds. (Id.) She has
- 32 -
been found to have depression since at least 2009. (Id. at 22.) In 2012, she was found to
have anxiety. (Id.) Regardless, no abnormalities in her mental status were noted by her
treating physicians. (Id. at 22.)
The ALJ noted that Plaintiff described fairly limited daily activities, but further noted
that such could not be objectively verified and, even if accurately portrayed, the degree of
their limitation could not be fairly attributed to her medical condition given the medical
evidence and other considerations. (Id. at 22-23.)
Next the ALJ noted the opinion evidence of the agency psychologist and of the single
decisionmaker, but concluded that the evidence and Plaintiff's testimony suggested a more
limited RFC. (Id. at 23.) For instance, the psychologist found only mild limitations and
difficulties, but the evidence suggested at least moderate limitations in social functioning and
in concentration, persistence, or pace. (Id.) The evidence also suggested a greater degree of
limitation than found by the single decisionmaker in Plaintiff's ability to lift, sit, stand, walk,
and use her hands. (Id.) The ALJ considered the supporting statements of Plaintiff's mother
and friend,9 but declined to give them significant weight because (a) the mother and friend
are not disinterested third parties; (b) the accuracy of their information is questionable; and
(c) the statements are not consistent with the preponderance of the evidence. (Id.)
Although the ALJ refers to "friends" in the plural, there are supporting statements only by
Plaintiff's mother and one friend, the gentleman with whom she lives.
- 33 -
With her RFC, Plaintiff cannot perform any past relevant work. (Id. at 24.) With her
age, education, and RFC, she can perform other jobs that exist in significant numbers in the
national economy. (Id. at 25-26.)
The ALJ concluded that Plaintiff is not disabled within the meaning of the Act. (Id.
Additional Records Before the Appeals Council
When requesting review, Plaintiff submitted additional records to the Appeals Council,
including those of a July 2013 visit to Dr. Douglas Phan, M.D., an otolaryngologist, for
treatment of her recurrent sinus infection, a long history of hearing loss without ear pain or
drainage, and snoring. (Id. at 769-73.) She was found to have normal hearing in each ear.
(Id. at 771, 773.) Also normal were her gums, oropharynx, head, face, eyes, and neck. (Id.
at 771-72.) She was to be rescheduled for a CT scan of her sinuses and was prescribed a
daily nasal spray. (Id. at 773.)
Plaintiff returned to Dr. Phan the next month for "her sinus pressure issues" and to
discuss the CT results. (Id. at 763-65.) He cleaned her left ear. (Id. at 764.) He noted that
the sinus CT studies were normal and his ENT exam was negative. (Id. at 764.) He
diagnosed her with chronic sinusitis and advised her to follow up with her primary care
physician as needed. (Id. at 764-65.)
Plaintiff saw Ms. Barry in September. (Id. at 777-78.) She noted that Plaintiff had
gained five pounds. (Id. at 777.) The examination findings were normal. (Id.) Plaintiff had
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received Medicaid and wanted to see Heidi Ludwig, C.N.P., who her significant other saw.
(Id.) No follow-up appointment was scheduled. (Id.)
Plaintiff saw Ms. Ludwig in October, reporting that she never feels well, is always
tired, has chronic joint and back pain, and has fluid retention. (Id. at 781-85.) On
examination, Plaintiff had a mild limp and slow gait and was tender in her thoracic and
lumbar spines. (Id. at 783.) Her legs were swollen. (Id.) Otherwise, the findings were
normal. (Id.) Ms. Ludwig was to obtain Plaintiff's medical records and consider referrals to
two doctors (their speciality is not identified). (Id. at 784.) Plaintiff was prescribed
bumetanide, a diuretic. (Id.)
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).
- 35 -
"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.
§§ 404.1520(a) and § 416.920 (a)). "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. §§ 404.1520(b), 416.920(b); Hurd, 621 F.3d at 738. Second, the claimant must
have a severe impairment. See 20 C.F.R. §§ 404.1520(c), 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. §§ 404.1520(d), 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 [his] limitations." Moore v. Astrue, 572 F.3d 520, 523 (8th Cir.
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
- 36 -
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
"' the claimant's daily activities;  the duration, frequency and intensity of the pain; 
precipitating and aggravating factors;  dosage, effectiveness and side effects of
medication;  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).
At step four, the ALJ determines whether claimant can return to her past relevant
work. 20 C.F.R. §§ 404.1520(e), 416.920(e). The burden at step four remains with the
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claimant to prove her RFC. 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. §§ 404.1520(f),
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
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
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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.
Plaintiff argues that the ALJ (1) failed to comply with Social Security Ruling 96-8
when assessing her RFC; (2) was patently erroneous when assessing her credibility; (3) failed
to comply with the Commissioner's policies regarding fibromyalgia; and (4) improperly relied
on the VE's testimony. The Commissioner disagrees.
Plaintiff's RFC. The ALJ determined that Plaintiff has the RFC to perform light work
with limitations of lifting or carrying no more than ten pounds and of needing to alternate at
will every forty-five minutes between standing, sitting, and walking without leaving her work
station. She can occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs,
but should never climb ropes, ladders, or scaffolds. She should (a) avoid concentrated
exposure to work hazards, e.g., moving machinery and unprotected heights, and to airborne
irritants; (b) have no more than frequent use of her hands to grip, grasp, or handle and only
occasionally perform overhead reaching; and (c) have no more than occasional interaction
with the public. She would hourly need to briefly use the restroom.
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"Ordinarily, RFC is the individual's maximum remaining ability to do sustained work
activities in an ordinary work setting on a regular and continuing basis, and the RFC
assessment must include a discussion of the individual's abilities on that basis. A 'regular and
continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule.
RFC does not represent the least an individual can do despite his or her limitations, but the
most." S.S.R. 96-8p, 1996 WL 374184, *2 (S.S.A. July 2, 1996) (footnote omitted). "[S.S.R.
96-8p] cautions that a failure to make [a] function-by-function assessment [of a claimant's
RFC] could 'result in the adjudicator overlooking some of an individual's limitations or
restrictions.'" Depover v. Barnhart, 349 F.3d 563, 567 (8th Cir. 2003) (quoting S.S.R. 968p, 1996 WL 374184, *1). An ALJ does not, however, fail in her duty to assess a claimant's
RFC merely because the ALJ does not address all areas regardless of whether a limitation is
found. See Id. Instead, an ALJ who specifically addresses the areas in which she found a
limitation but is silent as to those areas in which no limitation is found is believed to have
implicitly found no limitation in the latter. Id. at 567-68. See Renstrom v. Astrue, 680 F.3d
1057, 1065 (8th Cir. 2012) (ALJ does not fail in duty to fully develop the record by not
providing "an in-depth analysis of each piece of record").
Plaintiff correctly notes that her medical history is complex. And, it is detailed. What
it is not is supportive of a more restrictive RFC than the ALJ found.
The date at issue is October 5, 2011. Plaintiff was treated for the impairments she cites
as disabling before then. For instance, she began treatment in April 2009 for IBS, which she
described as having existed for the past three years. In May 2009, she was treated for pelvic
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pain, bloating, and dysuria. The same month, she was treated for neck, back, and leg pain.
In June 2009, she was treated for, among other things, palpitations and abdominal pain. The
same month, she began treatment for fibromyalgia. In July 2009, she was treated for asthma.
In August 2009, she was treated for, among other things, fatigue and right ankle and hip pain.
In September, she began treatment for interstitial cystitis. In October 2009, she was treated
for hypothyroidism and depression. Plaintiff sought treatment forty-three times between April
2009 and October 2011 from a total of nine physicians, one physician's assistant, and two
nurse practitioners. From October 2011 to October 2013 – the date of the ALJ's decision –
she sought treatment twenty-six times, including twice for contact lenses, once for an annual
eye exam, and twice for ear pain. In the majority of the remaining twenty-one times, her
condition was often described as stable and she was advised to exercise – a recommendation
inconsistent with a more restrictive RFC.
Plaintiff argues that additional medical records must be considered when reviewing the
ALJ's RFC determination. Those records were submitted to the Appeals Council in support
of her request to be allowed to file a new claim.10 Plaintiff's one-sentence summary of each
record fails to establish error in the RFC determination.11 The regulations provide that "[i]f
Plaintiff represents that the records include November 2013 Blessing Hospital records;
November 2013 QMG records; December 2013 QMG records; December 2013 records of Dr.
Espejo; December 2013 records from Dr. Barbagiovanni; January 2014 Blessing Hospital records;
and January 2014 records of Elizabeth Stumpf, C.N.P.
The summary is all that is available to the Court. Although Plaintiff states that the cited
records are attached to her brief, they are not. Cf. Whitney v. Astrue, 668 F.3d 1004, 1007 (8th Cir.
2012) (remanding to district court for consideration of whether new evidence was properly submitted
to Appeals Council when evidence at issue was submitted to district court).
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new and material evidence is submitted, the Appeals Council shall consider the additional
evidence only where it relates to the period on or before the date of the administrative law
judge hearing decision." 20 C.F.R. §§ 404/1970(b), 416.1470(b). Plaintiff's summary of the
records, see note 11, supra, fails to carry her burden of showing the ALJ erred. See Vossen
v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010) ("[T]he burden of persuasion to prove
disability and demonstrate RFC [is] on the claimant."). For instance, one record is of test
results which, according to Plaintiff's summary, were not hemodynamically significant.
Another record is for treatment of her NASH. As noted by the ALJ, Plaintiff had a history
of treatment for NASH. See Whitman v. Colvin, 762 F.3d 701, 709 (8th Cir. 2014)
(affirming denial of remand based on two records submitted to Appeals Council which were
partially cumulative and not probative of applicable time period).
Plaintiff further argues that the ALJ erred by not considering the effect of her obesity
on her ability work, as required by Social Security Ruling 02-01p. The ALJ noted that,
although there is no medical listing for obesity, the regulations require "any additional and
cumulative effects of obesity" be considered. (R. at 15.) She later noted that Plaintiff's Body
Mass Index (BMI) was such that she was obese and, being guided by Ruling 02-01p,
considered the combined effects of her obesity. (Id. at 22.)
Under Social Security Ruling 02-1p, obesity is to be considered "a 'severe' impairment
when, alone or in combination with another medically determinable physical or mental
impairment(s), it significantly limits an individual's physical or mental ability to do basic work
activities." S.S.R. 02-01p, 2000 WL 628049, *4 (S.S.A. Sept. 12, 2002). "There is[,
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however,] no specific level of weight or BMI that equates with a 'severe' or a 'not severe'
impairment." Id. The regulations provide that:
[o]besity is a medically determinable impairment that is often associated with
disturbance of the musculoskeletal system, and disturbance of this system can
be a major cause of disability in individuals with obesity. The combined effects
of obesity with musculoskeletal impairments can be greater than the effects of
each of the impairments considered separately. Therefore, when determining
whether an individual with obesity has a listing-level impairment or
combination of impairments, and when assessing a claim at other steps of the
sequential evaluation process, including when assessing an individual's residual
functional capacity, adjudicators must consider any additional and cumulative
effects of obesity.
20 C.F.R. Pt. 404, Subpart P, Appx. 1, § 1.00(Q).
In Myers v. Colvin, 721 F.3d 521, 527 (8th Cir. 2013), the Eighth Circuit rejected an
argument that the ALJ erred by failing to consider the claimant's obesity and breathing
limitations when determining the claimant's RFC. As in the instant case, the ALJ had
included obesity among the claimant's severe impairments.
Id. at 523.
determination limited the amount of weight the claimant could lift and the length of time
during an eight-hour day when she could stand and walk. Id. at 526. In Heino v. Astrue, 578
F.3d 873, 881 (8th Cir. 2009), the Eighth Circuit recognized its previous holding "that when
an ALJ references the claimant's obesity during the claim evaluation process, such review may
be sufficient to avoid reversal." The court then rejected the claimant's argument that the ALJ
had failed to consider her obesity when determining her RFC. Id. See also Green v. Astrue,
2011 WL 749743, *20-21 (E.D. Mo. 2011) (finding that ALJ properly considered claimant's
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obesity by considering all her medical records and symptoms in light of obesity and
concluding that impairments did not meet requirements of listing).
In the instant case, the ALJ found Plaintiff's obesity to be a severe impairment, cited
Social Security Ruling 02-1p, limited the amount of weight she can lift, and limited the
frequency of certain exertional activities, e.g., stooping and kneeling. In the instant case, this
is sufficient to avoid reversal. See Yarbrough v. Astrue, 2012 WL 3235747, *3-4 (E.D. Ark.
2012) (finding that ALJ's citation to Social Security Ruling 02-1p, his statement that he had
to consider at step three whether the combination of claimant's impairments satisfied a listing,
and summary of alleged impairments, including obesity, satisfied requirement that ALJ
consider combined effect of impairments, including obesity).
Plaintiff next argues that the ALJ erred by not inquiring about why she did not pursue
counseling or about whether mental health treatment would have restored her ability to engage
in substantial gainful activity (SGA), as required by Social Security Ruling 82-59. A failure
to seek mental treatment may be considered by an ALJ when evaluating whether a claimant
has a debilitating mental impairment. Partee, 638 F.3d at 864. See also Ellis v. Barnhart,
392 F.3d 988, 996 (8th Cir. 2005) (finding no error in consideration by ALJ of claimant's
limited treatment record). Such consideration does not violate the requirement of Social
Security Ruling 82-59 that a determination "be made as to whether [a] failure to follow
prescribed treatment is justifiable" "only where," among other criteria, "[t]reatment which is
clearly expected to restore capacity to engage in any SGA (or gainful activity, as appropriate)
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has been prescribed by a treating source." Social Security Ruling 82-59, 1982 WL 31384, *1
(S.S.A. 1982). There is no such determination in Plaintiff's case.
Credibility. Plaintiff challenges the ALJ's credibility determination as fatally flawed
because she (a) did not describe or discuss the supporting statements of Plaintiff's mother and
friend and (b) gave reasons not supported by the record as a whole.12
Although the observations of third-parties may support a claimant's credibility, see 20
C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (listing information from other people about a
claimant's pain or other symptoms as a factor to be considered when evaluating a claimant's
credibility), the responses at issue generally echoed the statements in Plaintiff's report about
her symptoms and their effects. In Buckner v. Astrue, 646 F.3d 549, 559-60 (8th Cir. 2011),
the Eighth Circuit held that an ALJ's failure to specifically address supporting claims by the
claimant's girlfriend about his condition when those statements could be discredited for the
same reason as had the claimant's statements was not error. In the instant case, the ALJ
specifically addressed the third party statements and gave her reasons for discrediting them.
There is no error. Cf. Willcockson v. Astrue, 540 F.3d 878, 881 (8th Cir. 2008) (finding
ALJ's failure to refer in his decision to three supporting statements by claimant's family
members was "another reason" for remand as it could not be determined whether ALJ
"overlooked statements, gave them some weight, or completely disregarded them"). But see
Robinson v. Sullivan, 956 F.2d 836, 841 (8th Cir. 1992) (declining to remand case in which
In support of this argument, Plaintiff refers to records she describes as being attached but
are not. Those references will be disregarded.
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ALJ failed to list reasons for discrediting third party's statement when omission had no
bearing on outcome).
Plaintiff contends that the reasons given by the ALJ for discrediting her complaints are
not supported by the record as a whole; the Commissioner counters that they are.
One reason given by the ALJ is the lack of supporting objective evidence. This is a
factor, although not one to be relied on solely, that may properly be considered. Ford v.
Astrue, 518 F.3d 979, 982 (8th Cir. 2008). For instance, Plaintiff complained of back and
right leg pain, but consistently had a steady gait and normal muscle tone and strength.
Diagnostic tests revealed, at worst, only mild degenerative changes. She complained of finger
stiffness, but had normal grip strength. She complained of left shoulder blade pain, but had
equal strength in both shoulders. See Kamann v. Colvin, 721 F.3d 945, 951-52 (8th Cir.
2013) (affirming ALJ's credibility finding based on discrepancies between claimant's selfreported limitations and observed capacities). The ALJ also noted the conservative treatment,
i.e., outpatient medication management and physical therapy. This is a proper consideration.
Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001) (conservative treatment supported ALJ's
adverse credibility determination); Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998)
(conservative treatment, including exercises and medication, and lack of surgery supported
ALJ's adverse credibility determination). And, there are inconsistencies in the record, e.g.,
Plaintiff first reported that the prednisone helped a lot and then, in the same appointment,
described it as helping a little, at best. See Wheeler v. Apfel, 224 F.3d 891, 895 (8th Cir.
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2000) ("The ALJ may discount subjective complaints of pain if inconsistencies are apparent
in evidence as a whole.").
Recognizing that Plaintiff described activities of daily living significantly limited by
her impairments, the ALJ discounted her description for the same reasons advanced in
Whitman v. Colvin, 762 F.3d 701 (8th Cir. 2014). In that case, the ALJ discounted the
claimant's allegations of limited daily activities on the grounds that the activities could not be
objectively verified and that, even if they were as restricted as alleged, the degree of limitation
could not be attributed to his medical condition. Id. at 705. The court deferred to the ALJ's
Id. at 707-08.
Similarly, in the instant case, because the ALJ's
determination not to credit Plaintiff's subjective complaints is supported by good reasons and
substantial evidence, the Court defers to her determination. See McDade v. Astrue, 720 F.3d
994, 998 (8th Cir. 2013); Renstrom, 680 F.3d at 1065.
Fibromyalgia. Noting that the Eighth Circuit has recognized that fibromyalgia is an
elusive diagnosis, see Tilley v. Astrue, 580 F.3d 675, 681 (8th Cir. 2009), Plaintiff argues
that the ALJ failed to consider how her fibromyalgia affects her RFC.
"[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 June 2009
medical record – twenty-eight months before her alleged disability onset date. And, unlike
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the ALJ in Tilley, the ALJ did address her fibromyalgia and found her to have several
resulting physical limitations.
The VE's Testimony. In her fourth, and final claim of error, Plaintiff argues that the
implausibility of someone having to hourly use the restroom and change positions being able
to stay productive in an unskilled job is so evident that the ALJ erred by accepting the VE's
testimony that there are jobs that such a person can perform.
"Under Social Security Ruling (SSR) 00–4p, the ALJ must 'ask about any possible
conflict' between VE evidence and 'information provided in the DOT.'" Moore v. Colvin,
769 F.3d 987, 989 (8th Cir. 2014). "If there is an 'apparent unresolved conflict' between VE
testimony and the DOT, the ALJ must 'elicit a reasonable explanation for the conflict' and
'resolve the conflict by determining if the explanation given [by the expert] provides a basis
for relying on the [VE] testimony rather than on the DOT information.'" Id. at 989-90
(quoting Social Security Ruling 00–4p, 2000 WL 1898704, at *2–4 (S.S.A. Dec. 4, 2000)).
Ms. May stated that her testimony was consistent with the DOT. Additionally, she
noted that the DOT does not refer to a sit/stand option – requirement of Plaintiff. She further
testified, however, that her experience as a rehabilitation counselor for twenty years informed
her testimony that two of the three cited jobs, laundry worker and collator, allow for sitting
and standing at will and the third, an office helper, allows for a worker to move about more
freely. She also testified that none of these three jobs would be eliminated if a person needs
to briefly use the restroom.
Asked to support her conclusions about the described
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accommodations, Ms. Mays cited her extensive experience as a rehabilitation counselor.
Plaintiff did not challenge that explanation.
Carefully reviewed, Ms. Mays' testimony does not present the implausible situation
described by Plaintiff. She testified that the three jobs allow for a person to alternate
positions. This is not the same as a person taking time away from her work station to alternate
positions. The VE testified that a person could briefly use the restroom every hour. This does
not lessen a person's productivity below 90 percent.
"When an ALJ has posed a hypothetical that accurately reflects [her] RFC finding,
questioned the VE about any apparent inconsistencies with the relevant DOT job descriptions,
and explained [her] decision to credit the VE's testimony, the ALJ has complied with SSR
00–4p, and [the Court] review[s] [her] decision under the deferential substantial evidence
standard." Welsh v. Colvin, 765 F.3d 926, 930 (8th Cir. 2014). In the instant case, any
apparent inconsistencies were inquired about and addressed. The ALJ's determination that
Plaintiff can perform the three jobs cited by the VE is supported by substantial evidence on
the record as a whole.
Considering all the evidence in the record, the Court finds that there is substantial
evidence to support the ALJ's decision. "If substantial evidence supports the ALJ's decision,
[the Court] [should] not reverse the decision merely because substantial evidence would have
also supported a contrary outcome, or because [the Court] would have decided differently."
Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010). Therefore,
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IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED
and 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 19th day of May, 2015.
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