Price v. Commissioner of Social Security
MEMORANDUM AND ORDER. (See Full 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 03/24/2015. (CBL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
LORI T. PRICE,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Case number 2:14cv0049 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 Lori T. Price (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 the written consent of the parties. See 28 U.S.C. § 636(c).
Plaintiff applied for SSI in August 2010, alleging she was disabled as of July 15, 2009,
by bipolar disorder, chronic migraines, attention deficit hyperactivity disorder (ADHD),
anxiety disorder, fibromyalgia, and poly-substance dependence. (R.1 at 157-65, 179.) Her
application was denied initially and following a hearing held in June 2012 before
Administrative Law Judge (ALJ) Dina R. Loewy. (Id. at 7-21, 46-98, 103-08, 121-34, 14750.) After reviewing additional evidence, see pages 26 to 27, infra, the Appeals Council
References to "R." are to the administrative record filed by the Commissioner with her
denied her request for review, effectively adopting the ALJ's decision as the final decision
of the Commissioner. (Id. at 1-4.)
Testimony Before the ALJ
Plaintiff, represented by counsel, and Bob Hammond, a vocational expert (VE),
testified at the administrative hearing.
Plaintiff, then forty-four years old, testified that she is 5 feet 6 inches tall, weighs 200
pounds, and is right-handed. (Id. at 53-54.) She is married and has four daughters, ages 22,
19, 17, and 8. (Id. at 54.) Her eight-year old is the only child living with her and is her only
child with her current husband. (Id. at 54-55.) They live in a one-story house. (Id. at 55.)
She does not drive because her license has been suspended for "[a]t least a couple of years"
for back-owed child support. (Id.) She graduated from high school and completed three
years of college.2 (Id. at 56.) She receives Medicaid. (Id.)
Plaintiff last worked in July 2009. (Id.) She was working part-time at a restaurant and
lost the job due to her depression. (Id. at 57.) She has lost other jobs because of her
depression, which causes her to isolate herself and sleep a lot. (Id. at 57.) She experiences
episodes of depression two or three times a month. (Id. at 84.) An episode can last between
a few hours to a few days. (Id.)
When applying for SSI, Plaintiff reported that she completed a Doctor's Assistant Degree
in 1991. (Id. at 180.)
Plaintiff has a felony conviction for child endangerment resulting from the presence
of THC3 in her youngest daughter's system when born. (Id. at 59-60.) The child is now
happy and healthy. (Id. at 60.)
Plaintiff was diagnosed with bipolar disorder approximately two years ago. (Id. at 6364.) She is currently taking lithium, Depakote, and Seroquel. (Id. at 65.) Plaintiff was
hospitalized once for psychiatric reasons. (Id. at 67.) This was for four days in 2005 after
she tried to commit suicide. (Id.) On discharge, she was in rehabilitation for thirty days. (Id.
at 67-68.) She has been in rehabilitation four times, generally for marijuana. (Id. at 68.)
Plaintiff testified that she stopped using marijuana a year and a half ago. (Id.) When
questioned about why she was in rehabilitation last July, Plaintiff explained that she used it
"a couple of times after she got out." (Id.) She has not used it since her husband threatened
to leave her and take their daughter. (Id. at 69.) To ensure her abstinence, she is in
Asked how she spends a typical day, Plaintiff testified that she reads and watches
television. (Id. at 71-72.) She cooks and cleans and gets her daughter ready for school. (Id.
at 72.) She has to do these chores in spurts with rests between. (Id.)
Plaintiff started having back problems six or seven months earlier. (Id.) There was
no precipitating event. (Id.) The epidural injections she has received have provided no relief.
(Id. at 74-75.)
The transcript refers to "THF," however, later references make it clear it was THC,
tetrahydrocannabinol, the primary ingredient in marijuana, that was present in her new-born's blood.
(See id. at 407.)
Plaintiff was diagnosed with fibromyalgia approximately three years ago. (Id. at 76.)
She takes Savella and Neurontin for it; both help. (Id.) She only notices the fibromyalgia
when she does not take her medications. (Id.) She has taken Percocet for pain, but it causes
nausea. (Id. at 77.) She was diagnosed with migraines when she was 18. (Id.) She takes
medication for them. (Id. at 77-78.) She gets migraines when she is under stress, which is
often. (Id. at 78.) Her medications also cause side effects of shaking, racing thoughts, and
(Id. at 80-81.)
Her hyperactivity expresses itself in anger,
irritability, and frustration. (Id. at 82.)
Plaintiff smokes a little over a pack of cigarettes a day. (Id. at 85.) She does not often
drink alcohol. (Id.)
Plaintiff also takes medication for high blood pressure. (Id. at 86.)
Plaintiff testified that she can walk for a block and back and stand for fifteen to twenty
minutes. (Id. at 89.) She has no problem sitting. (Id.) She has difficulty going up stairs.
(Id.) She can lift or carry approximately twenty pounds. (Id.)
Mr. Hammond, testifying as a VE without objection, was asked to assume a
hypothetical claimant of Plaintiff's age and education who can do light work and
occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs. (Id. at 92, 93.)
This claimant is limited to simple, routine tasks; must avoid concentrated exposure to
hazardous machinery and unprotected heights; and must never climb ladders, ropes, or
scaffolds. (Id. at 93.) He testified that this claimant can perform the work of an usher/ticket
taker; an assembler II in the lighting industry; and a hand presser in the laundry industry. (Id.
at 94.) If this hypothetical claimant is further restricted to only occasional interaction with
the public, co-workers, or supervisors and to only occasional changes in the work setting, she
cannot perform the work of an usher/ticket taker but can perform the work of the other two
positions. (Id.) If this hypothetical claimant is unable to regularly and consistently engage
in sustained work activity for a full eight-hour day, all three positions would be eliminated.
(Id. at 95.) If the hypothetical claimant is restricted to sedentary work with the additional
limitations earlier described, she can perform the work of a circuit board screener, a
polisher/assembler in the eye-wear industry, and a semiconductor bonder. (Id. at 95-96.) If
the claimant cannot perform fine manipulation with her hands, the assembly positions would
be eliminated at the sedentary level and all but the usher/ticket taker position at the light level
would be eliminated. (Id. at 96.)
Mr. Hammond further stated that his testimony was consistent with the Dictionary of
Occupational Titles (DOT). (Id. at 95.)
Medical and Other Records Before the ALJ
The documentary record before the ALJ includes forms completed as part of the
application process, documents generated pursuant to Plaintiff's application, records from
health care providers, and assessments of her mental capabilities.
When applying for SSI,4 Plaintiff completed a Function Report. She described her
daily activities as being primarily reading and watching television. (Id. at 187.) She does
household chores during the commercials, but has to sit and rest when the show is on. (Id.)
She makes sure her daughter, then six years old, wears appropriate clothes and eats well. (Id.
at 188.) She tries to feed and water her two dogs every day and let them out several times
during the day. (Id.) Her husband and daughter help. (Id.) Even when taking her
medications, she wakes up several times a night. (Id.) She does not bathe daily and washes
her hair once a week. (Id.) She talks with friends two or three times a week and talks with
family members every day. (Id. at 191.) She walks three to four times a week. (Id.) Her
impairments adversely affect her abilities to lift, squat, bend, stand, walk, kneel, hear,
remember, concentrate, understand, climb stairs, and complete tasks. (Id. at 192.) She cannot
lift anything heavier than ten pounds. (Id.) If she walks slowly, she can walk for four blocks
before having to stop and rest for approximately fifteen minutes. (Id.) She can follow written
instructions well, but has difficulty concentrating for longer than a few minutes. (Id.)
Authority figures intimidate her. (Id. at 193.) She does not handle stress or changes in
routine well. (Id.)
A friend of Plaintiff who has known her for twenty-three years completed a Function
Report on Plaintiff's behalf. (Id. at 206-13.) Her answers were generally consistent with
Plaintiff's prior claims for SSI and DIB were denied at the initial level in August 2006 and
not pursued further. (Id. at 175.)
Plaintiff's and emphasized that Plaintiff needed motivation from others to complete any tasks,
including personal hygiene tasks. (Id.) Plaintiff's husband also answered some questions
about her functioning. (Id. at 229-31.) He reported that she is always sick, can walk "maybe
a block," and can lift ten pounds with one hand and twenty with both. (Id. at 229-30.) The
only chores she does are laundry and the dishes. (Id. at 230.)
An earnings report lists earnings for the years 1996 to 2005 and 2007 to 2009. (Id. at
167.) Plaintiff's highest annual earnings were $10,287,5 in 2000. (Id.) Her earnings declined
after that – $544 in 2007; $5,758 in 2008; and $3,557 in 2009. (Id.)
A December 2011 letter from the U.S. Department of Education informed Plaintiff that
her obligation to repay her student loan was discharged based on her "total and permanent
disability." (Id. at 237-40.)
The medical records before the ALJ are summarized below in chronological order,
beginning when Plaintiff was seen by Janet P. Myers, D.O., in June 2009 for her complaints
of migraine headaches. (Id. at 364.) Plaintiff reported that she had been diagnosed with
"'tension migraines'" when she was eighteen years old and that her current migraine had
started a few days earlier. (Id.) She further reported that the only medication that worked
was Fioricet,6 prescribed for her by Dr. O'Connor, but she had run out of it. (Id.) Dr. Myers
diagnosed Plaintiff with cephalgia, "probably neck induced with migraine features," and
All amounts are rounded to the nearest dollar.
Fioricet is a combination of acetaminophen, caffeine, and butalbital, a barbiturate. See What
is Fioricet?, http://www.drugs.com/fioricet.html (last visited Mar. 19, 2015).
refilled her prescription for Fioricet, cautioning Plaintiff that she would not refill it again due
to its dependence potential.
Dr. Myers offered to see Plaintiff for osteopathic
manipulative therapy to help decrease the frequency and severity of her headaches. (Id.)
In September, Plaintiff consulted Casey Jennings, M.D., at Pike Medical Clinic (PMC)
about her neck and shoulder pain. (Id. at 293.) The pain had lasted for the past ten to fifteen
years, but was getting worse. (Id.) Also, she had had a cough for the past five days which
was preventing her from sleeping and tension headaches that occasionally occurred several
times a week. (Id.) She reported that she had tried a friend's Savella (used in the treatment
of fibromyalgia), and it had helped. (Id.) She was diagnosed with sinusitis/bronchitis;
chronic neck and shoulder pain possibly due to fibromyalgia; and headaches. (Id.) Her
prescriptions included Cipro (an antibiotic), prednisone, Phenergan with codeine (used to
treat allergy symptoms), Fioricet, Klonopin (for the treatment of anxiety), Savella, and
Zanaflex (a muscle relaxer). (Id.) She was to return in three months. (Id.)
When seeing Dr. Jennings in November, Plaintiff wanted to discuss her husband's
hepatitis C. (Id. at 292.) Also, she was applying for SSI and wanted to know what diagnoses
to use. (Id.) Plaintiff was diagnosed with bronchitis, fibromyalgia, and hepatitis C exposure.
Plaintiff returned to Dr. Jennings the next month to talk about her SSI application and
her worsening shoulder and neck pain. (Id. at 290-91.) Also, she had pain in the right side
of her face and a headache every afternoon in that area. (Id. at 291.) She requested that he
dictate a general letter stating that she cannot work at all. (Id.) He declined, but told Plaintiff
to get a form with specific questions that could be answered. (Id.) Plaintiff was diagnosed
with sinusitis and fibromyalgia and prescribed an antibiotic, Amoxil. (Id.)
Plaintiff was seen by a provider7 at PMC in January 2010 for her complaints of sinus
pressure, headaches, runny nose, and bilateral ear pain. (Id. at 289.) She was diagnosed with
acute sinusitis and prescribed an antibiotic. (Id.) Plaintiff returned to Dr. Jennings in March
for treatment of a sore throat, painful ears, fatigue, and lack of appetite. (Id. at 287-88.) Her
diagnoses was unchanged. (Id. at 287.) In April, she was seen at PMC for complaints of a
severe headache and nausea. (Id. at 286.)
Plaintiff next saw Dr. Jennings on July 2, complaining of bilateral ear pain,
lightheadedness when standing up, fatigue, and worsening migraines. (Id. at 284.) It was
noted that Plaintiff "over exaggerated multi[iple] tender points," making it difficult for him
to do an examination. (Id.) She was to have lab work done to investigate her complaints of
fatigue, lightheadedness, and dizziness and was given a refill of the Fioricet for her
Plaintiff went to the emergency room at Hannibal Regional Hospital on July 14 with
complaints of worsening depression during the past two weeks due to the stress of "dealing
with the custody of her youngest child." (Id. at 374-91.) Her relevant medical history
included depression, fibromyalgia, migraines, and hypertension. (Id. at 375.) She did not
drink alcohol, but did occasionally smoke marijuana. (Id.) She did not have chronic pain.
(Id. at 384.) On examination, Plaintiff was alert and oriented to person, place, and time and
The name is illegible.
had a normal mood and affect. (Id. at 377.) She thought about suicide, but thoughts of her
daughter prevented her from doing it. (Id. at 34, 377.) A urine drug screen was positive for
barbiturates and marijuana.
(Id. at 379.)
Her potassium levels were critically low;
consequently, Plaintiff was given potassium chloride, K-Dur. (Id. at 380, 389.) She was
admitted, diagnosed with depressive disorder, treated, and discharged home within twentyfour hours after she reported that she was feeling "slightly better," was ready to go home, and
would follow up with another provider for drug and psychological treatment. (Id. at 383.)
On July 19, Plaintiff was screened at Preferred Family Healthcare (PFH) for a
residential treatment program. (Id. at 255-70.) Her treatment history included four residential
treatments in 2005, two of which she did not complete, and one hospitalization. (Id. at 266.)
Her psychiatric status included, both in the past thirty days and during her lifetime, serious
depression, serious anxiety or tension, comprehension or memory problems, serious suicidal
thoughts, and medications for psychological or emotional problems. (Id. at 265.) Her drug
and alcohol use included, in the past thirty days, twelve days of use of barbiturates, five days
of use of cannabis, and twelve days of use of other opiates/analgesics. (Id. at 261.) During
her lifetime, she had used alcohol to a point of intoxication for twenty-five years, cannabis
for twenty-two years, barbiturates for twenty-four years, and other opiates/analgesics for
twenty-four years. (Id.) Her major substance abuse problem was cannabis. (Id.) She had
voluntarily abstained from using it for thirty-six months; this abstinence had ended at least
eight years earlier. (Id.) Plaintiff's current problems included substance abuse, family
members and friends, employment and financial, violence and aggression, suicide attempts,
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health, depression, mood swings, eating problems, anxiety, sleep, sexual, and anger. (Id. at
257.) Her current medications included trazodone (an anti-depressant), Paxil (an antidepressant), Klonopin, Zanaflex, Savella, and metoprolol (for high blood pressure). (Id.)
Randall R. Bacon, M.S., L.P.C.,8 diagnosed Plaintiff with opioid dependence; agoraphobia
without a history of panic disorder; major depressive disorder, recurrent, severe, without
psychotic features; ADHD; and cannabis dependence. (Id. at 269.) Her current Global
Assessment of Functioning (GAF) was 48.9 (Id. at 270.)
Plaintiff had a counseling session with Robert Parsonson, D.O., on July 21. (Id. at
275-76.) Her complaints included multiple somatic complaints, depression, anxiety, racing
thoughts, irritability, and insomnia. (Id. at 275.) On the checklist format for the session
notes, Dr. Parsonson circled "groomed" for appearance, "cooperative" for attitude,
"pressured" for speech, and "organized" for thought. (Id.) He wrote "poor" for impulse
control and judgment and "labile" for mood. (Id.) The list of symptoms under the headings
for depression and anxiety were not checked. (Id. at 276.) He diagnosed Plaintiff with
bipolar I disorder, mixed, and polysubstance abuse. (Id.) He prescribed Paxil, trazodone, and
lithium (used to treat manic depression). (Id.) Plaintiff was to return in two weeks. (Id.)
Licensed Professional Counselor.
"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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When seen by Dr. Parsonson on August 5, Plaintiff's only concern was constipation.
(Id. at 273-74.) Her attitude, appearance, and thought were as before. (Id. at 273.) Her mood
was euthymic, her speech was normal, and her judgment and impulse control were fair. (Id.)
Her diagnosis was depression with anxiety. (Id. at 274.) Her medications were renewed;
however, the dosage of lithium was reduced. (Id.) Mellaril, an antipsychotic, was also
On August 13, Plaintiff was described by Dr. Parsonson as "ok." (Id. at 271-72.) The
only changes to the checklist were a notation above insight, impulse control, and judgment
that those abilities were, according to her history, poor. (Id. at 271.) Her diagnosis was major
depressive disorder with anxiety. (Id. at 272.) Her prescriptions were refilled. (Id.) The
session lasted half the time as the first two. (Id. at 271.)
Having successfully completed the residential program, Plaintiff was discharged on
August 19. (Id. at 279-81.)
The next day, Plaintiff went to PMC to discuss her fibromyalgia and headaches. (Id.
at 283.) Her prescriptions for Paxil, trazodone, lithium, and Neurontin (used in the treatment
of nerve pain) were refilled. (Id.)
Plaintiff returned to PMC on September 8 for treatment of her headaches and
hypertension. (Id. at 296.) Her hypertension was stable as long as she took her medication.
(Id.) She wanted something for her headaches, but was referred to a headache clinic. (Id.)
Three weeks later, Plaintiff reported to Dr. Jennings that she was frequently sleeping all the
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time, was achy, and had low back pain that radiated to both legs, but primarily to the left. (Id.
at 295.) She requested, and was granted, a refill of her medications. (Id.)
Plaintiff was interviewed on March 8, 2011, for an initial clinical/psycholosocial
assessment at PFH, and the assessment was issued eight days later. (Id. at 345-55, 432-43.)
Plaintiff explained that she needed their help because she was bipolar and depressed and
could not get motivated to do anything. (Id. at 345-46.) She also suffered from back pain,
joint pain, bursitis in both shoulders, and fibromyalgia. (Id. at 346.) These physical
impairments limit her daily functioning and result in such pain that she often stays in bed.
(Id.) Plaintiff reported that she has been bipolar and depressed since she was six years old.
(Id. at 347.) She was always anxious and nervous and did not know how to relax. (Id.)
When "really stressed," she smokes marijuana to relax. (Id.) On examination, Plaintiff had
a disheveled appearance and appropriate interview behavior. (Id. at 348.) She was oriented
to person, place, time, and situation. (Id.) Her rate of speech and judgment were normal; her
memory was intact. (Id.) She walked without difficulty and was able to stay focused. (Id.)
She had a flat affect and ideas of helplessness. (Id.) She reported that she had no problem
with alcohol, having never drank again after getting drunk once when she was a senior in
high school. (Id.) She further reported that she did not have a substance abuse problem. (Id.)
She did not see her continued use of marijuana to relax as a problem and did not intend to
stop smoking it. (Id.) She had started using marijuana and cocaine when she was twentyfour. (Id.) Plaintiff read to her daughter every day. (Id.) Plaintiff reported that she had three
good friends. (Id. at 351.) Her husband, family, and friends were her support system. (Id.)
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Plaintiff was diagnosed with bipolar I disorder and polysubstance (marijuana and cocaine)
abuse. (Id. at 349.) Her current GAF was 49. (Id.) Plaintiff was found to be eligible for
PFH services with goals of maintaining psychiatric stability, a healthy lifestyle, individual
counseling, financial stability, and remaining drug free. (Id. at 353-54.) Barriers to obtaining
the first three and the fifth goals were her non-compliance and lack of motivation. (Id. at 353,
354.) A barrier to the fourth goal, financial stability, was the possible denial of her SSI claim.
(Id. at 354.) The fifth goal was deferred due to Plaintiff's lack of interest in stopping her use
of marijuana. (Id.)
On March 18, Plaintiff went to the emergency room at Pike County Memorial Hospital
for treatment of a migraine headache that had begun that day. (Id. at 409, 428-30.) Plaintiff
was given medication and told to follow up with her primary care physician in one or two
days. (Id. at 430.)
In April, Plaintiff underwent studies of her upper gastro-intestinal track to investigate
her complaints of bloating and weight gain and a chest x-ray to investigate her complaints of
wheezing and chest pain. (Id. at 418-20.) The former showed no abnormalities. (Id. at 41819.) The latter showed a degenerative change in her spine but no evidence of acute
cardiopulmonary disease. (Id. at 420.)
In August, Plaintiff saw Dr. Jennings for complaints of an urinary tract infection, back
and flank pain, sinus problems, and abdominal pain. (Id. at 521.) Plaintiff reported that she
generally felt bad and had difficulty moving in the morning. (Id.) Blood tests and urine
screens were performed. (Id. at 526-29.)
- 14 -
In September, Plaintiff consulted PMC practitioners about a cyst on her back and sinus
problems. (Id. at 519.) She was prescribed an antibiotic and referred to a surgeon for the
removal of the cyst. (Id. at 519-20.)
In November, she saw a PMC practitioner for her complaints of laryngitis, sore throat,
sinus drainage, headache, and ear pain for the past four days. (Id. at 517.) Plaintiff was
diagnosed with sinusitis and pharyngitis and prescribed antibiotics. (Id.) It was noted that
she was smoking one pack of cigarettes a day. (Id.)
The same day, Plaintiff had various tests performed at Pike County Memorial Hospital,
including an electrocardiogram (EKG) which revealed a possible left atrial enlargement and
an incomplete right bundle branch block. (Id. at 410-17, 530-32.)
On November 29, Plaintiff saw Jan F. Onik, D.O., at PMC for a check up and for
complaints of diarrhea for the past four days. (Id. at 516.) Also, she needed a drug screen.
(Id. at 516.) It was noted that she had not been taking her blood pressure medication, but had
been smoking a pack of cigarettes a day. (Id.) Her blood pressure was high; Plaintiff was
told she must take her medication. (Id.) The drug screen was negative. (Id. at 525.)
Plaintiff returned on December 5 for a recheck of her blood pressure; it was still high.
As a result of the EKG results, Plaintiff saw Mikhail Bassem, M.D., on December 12
for her complaints of occasional chest pain occurring in clusters and of worsening shortness
of breath on exertion. (Id. at 361-63.) She smoked one pack of cigarettes a day, and had
done so for twenty-five years. (Id. at 361.) She had used marijuana and a combination of
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Klonopin and methamphetamine, but had not used either recently. (Id.) His examination
findings were normal, with the exception of findings of anxiety and depression. (Id. at 36263.)
Plaintiff was to have a stress test and echocardiogram.
(Id. at 363.)
echocardiogram revealed a normal left ventricular ejection fraction and mild tricuspid
regurgitation. (Id. at 357-58.) The stress test was normal and indicated that Plaintiff was at
"a very low risk for hard cardiac events." (Id. at 359-60.)
Two weeks later, Plaintiff had a cyst removed from her back by Peter D. Perll, M.D.
(Id. at 423-27.) She was to return in two weeks for a follow-up visit. (Id. at 425.)
On January 9, 2012, Plaintiff consulted Dr. Onik about sinus problems, acid reflux,
and pain in her right eye. (Id. at 514, 523-24.) A urine drug screen was positive for
barbiturates but negative for marijuana.
(Id. at 523.)
Her diagnoses included
gastroesophageal reflux disease (GERD), chronic obstructive pulmonary disease (COPD),
chronic cough, and sinusitis. (Id. at 514.)
Plaintiff returned to PMC on January 18 to consult a provider about her low back and
hip pain for the past four to six months that was progressively getting worse. (Id. at 513.)
Also, her sinus problems were not getting better. (Id.) Two days later, she had a computed
tomography (CT) scan of her lower back, revealing mild multilevel disc disease without
evidence of marked canal or foraminal stenosis; moderate facet degenerative joint disease and
small foci of air about the thecal sac at L3-L4; and bilateral tiny nonobstructive renal calculi.
(Id. at 421-22.)
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In February, Plaintiff consulted Luvell Glanton, M.D., about her low back pain,
explaining that the pain had been gradual and intermittent for the past nine months. (Id. at
366-69, 469-72.) The pain did not radiate; was aggravated by twisting, standing, and
walking; and was relieved by bed-rest, changing positions, and sitting. (Id. at 366.) The pain
interfered with her personal grooming, walking, bathing, cooking, sweeping, gardening,
vacuuming, leisure activities, and, minimally, sleeping. (Id.) Her current medications
included lithium, Depakote (for bipolar disorder), Seroquel (also for bipolar disorder),
lisinopril (for high blood pressure), metoprolol (also for high blood pressure), gabapentin (the
generic form of Neurontin), Savella, potassium, ranitidine (for heartburn), Fioricet, and
hydrochlorothiazide (a diuretic). (Id.) Her neck was stiff and sore. (Id. at 367.) She had low
back pain, joint pain, and fibromyalgia. (Id.) She was not anxious, depressed, or irritable.
(Id.) She was well groomed and was oriented to time, place, and person. (Id. at 368.) Her
low back was moderately tender on palpation. (Id.) She had no clubbing or swelling in her
upper and lower extremities. (Id.) She smoked, but was ready to quit. (Id. at 369.) Dr.
Glanton noted that her x-ray was consistent with lumbar facet arthopathy and recommended
a median branch block at L1-L2 through L5-S1. (Id.)
On March 8, Plaintiff underwent a median branch block at L1-L2 through L5-S1. (Id.
at 370-73, 473-74, 508.)
Also on March 8, Plaintiff had an annual assessment at PFH. (Id. at 322-44, 444-49.)
Asked how well she was maintaining her house, Plaintiff replied "'pretty good.'" (Id. at 326.)
Asked how well she communicated with others, Plaintiff replied that she was a good listener,
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"'a great people person,'" dealt well with people, and could talk to strangers, but did not like
conflict and had difficulty showing her feelings. (Id. at 326, 341.) She has two friends she
has known for a long time and is friends with her husband's ex-wife. (Id. at 334.) She does
household chores during the commercials on television. (Id. at 327.) Her diet was primarily
meat and processed food. (Id. at 329.) She was able to independently plan and cook meals
and shop for groceries. (Id.) Plaintiff had used marijuana during the past year, but had not
used any other illegal drugs or alcohol. (Id. at 331.) She smoked a pack of cigarettes a day
and did not want to quit. (Id.) Her only hobby or leisure activity was reading. (Id. at 332.)
Her only other interest was cooking. (Id.) She did not like to leave the house and preferred
to be by herself. (Id. at 335.) Plaintiff was again diagnosed with bipolar I disorder, mixed.
(Id. at 341.) She was also diagnosed with cannabis dependence. (Id.) Her current GAF was
52.10 (Id.) It was noted that Plaintiff was trying to reduce her use of marijuana in order to
regain custody of her youngest daughter. (Id. at 343.) The daughter lived with her, but was
under the formal custody of another person. (Id.) It was noted that Plaintiff considered her
use of marijuana and her depression to be closely related. (Id.) Her counselor thought
Plaintiff continued to occasionally use marijuana, but did not talk about. (Id. at 331.) The
counselor also thought that Plaintiff was not "'dedicated to sobriety.'" (Id.) Plaintiff reported
that she saw a counselor at another location who was "'like a friend.'" (Id. at 323.)
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
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Plaintiff had a follow-up appointment with Dr. Onik on April 3. (Id. at 512, 522.) Her
cholesterol levels were high. (Id. at 522.) Plaintiff returned six days later to discuss her
weight gain and sore throat and for a refill of her medications. (Id. at 510.) Her diagnoses
were obesity, hyperlipidemia, and bipolar. (Id.) She was to return in three months.
Three days later, on April 12, Plaintiff had another median branch block at L1-L2
through L5-S1, following which her pain decreased from nine on a ten-point scale to three.
(Id. at 475-76, 502-08.) On April 26, Plaintiff underwent a radio-frequency ablation of the
medial branch nerves of L1-L2 through L5-S1. (Id. at 477-79, 495-501.)
Plaintiff was evaluated at PFH on May 15 by a psychiatrist, Lyle Clark, M.D.11 (Id.
at 451-53, 562-64.)
She reported that she had been responding "fairly well" to her
medications, but might be "having significant irritability." (Id. at 451.) She described
symptoms of a major depressive episode and of a manic episode. (Id.) She also described
previous symptoms of cannabis dependence, including "consistent use despite persistent
problems," but reported she had stopped using marijuana less than a year earlier. (Id.)
Plaintiff further reported that her symptoms had first occurred when she was a child, that she
had not had any psychiatric hospitalizations, and that she had twice tried to commit suicide
by overdosing. (Id. at 452.) She had no current stressors causing difficulties. (Id.) On
examination, Plaintiff was appropriately dressed with adequate hygiene, pleasant, and
cooperative. (Id.) Her speech was normal; her intellect was average; her thoughts were
logical; her mood was neutral; her affect was appropriate; her insight and judgment were
These records were also submitted to the Appeals Council.
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adequate. (Id.) Dr. Clark diagnosed Plaintiff with bipolar I disorder, mixed, moderate,
chronic, with rapid cycling, and cannabis dependence, in early full remission. (Id. at 453.)
Her current GAF was 42. (Id.) Her medications included Seroquel, lithium, and Depakote.
Plaintiff returned to Dr. Glanton on May 23, reporting that the previous procedure had
not helped. (Id. at 480-83, 487-90.) She characterized her back pain as being a constant ache
and occurring with movement. (Id. at 482.) The pain was a three on a ten-point scale. (Id.)
She continued to smoke. (Id. at 483.) A lumbar epidural steroid injection was discussed, and
was administered two days later. (Id. at 483-85, 490, 492-94.)
In addition to the foregoing records, the ALJ had before her the progress notes of
Christina Ross, Psy.D, for Plaintiff's therapy sessions from August 16, 2011, through March
29, 2012, inclusive. Her only diagnosis was generalized anxiety disorder. Those session
notes are summarized as follows.
On August 16, Plaintiff reported that she was anxious daily. (Id. at 407.) She had
formerly used marijuana to calm down, but wanted to quit. (Id.) Her current GAF was 60.
(Id.) Two weeks later, Plaintiff reported being able to fairly function since her last session.
(Id. at 406.) She had had a disagreement with her daughter's guardian but had been able to
work it out. (Id.) Her current GAF was 55. (Id.) She had difficulty staying on topic. (Id.)
Plaintiff was described in the notes of the next, September 20 session as having a good
response to treatment. (Id. at 405.) Her medications had changed, but she still felt like she
was manic. (Id.) She agreed to stop smoking marijuana. (Id.) Her homework was to take
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a bath every other day, go for a walk on those days, and wash her hair every other bath. (Id.)
On September 27, Plaintiff reported that she felt like her mood was stabilizing. (Id. at 404.)
She was frustrated with her daughter for getting into trouble at school. (Id.) She felt like her
daughter needed medication; however, she was not allowed to give her any. (Id.) She did
anyway and told her daughter to keep it a secret. (Id.) This approach was advised against.
(Id.) On October 11, Plaintiff reported that her daughter's guardian had taken her daughter
away for a few days. (Id. at 403.) Plaintiff was maintaining her hygiene. (Id.) The next
week, Plaintiff reported being bored and nervous about an upcoming court date to regain full
custody of her daughter. (Id. at 402.) On November 15, Plaintiff was frustrated because the
court date had been continued; however, she was getting housework done when her daughter
was at school and her husband at work. (Id. at 401.) One week later, Plaintiff was continuing
to feel better and have more energy. (Id. at 400.) The court date had been continued again.
(Id.) She was doing more around the house. (Id.) She and her daughter were doing activities
together, including cooking. (Id.) On November 29, she reported that she felt better and had
more energy. (Id. at 399.) She reported the same on December 6. (Id. at 398.) Her daughter
was away on vacation. (Id.) Plaintiff was doing well with keeping up with the housework
and was described as doing well overall. (Id.) Her GAF had increased to 60. (Id.) On
December 20, Plaintiff was continuing to feel better. (Id. at 397.) Pain in her back limited
what she could do each day. (Id.) Again, on January 3, 2012, Plaintiff reported that she was
continuing to feel better (Id. at 396.) At the next, February 21 session, Plaintiff reported
having fluctuating symptoms. (Id. at 395.) She had not been awarded full custody of her
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daughter; instead, her sister and a friend were co-guardians. (Id.) On March 13, she
described fluctuating symptoms. (Id. at 394.) She was not speaking with her mother or sister.
(Id. at 394.) Her symptoms were described as fluctuating at the next, March 29 session. (Id.
at 393.) Her GAF was 60. (Id.) She could not exercise because of back pain. (Id.) Small
changes in diet were discussed. (Id.)
Also before the ALJ were reports of assessments of Plaintiff's mental limitations and
In October 2010, a Psychiatric Review Technique form was completed for Plaintiff
by a non-examining consultant, Mark Altomari, Ph.D. (Id. at 300-11.) Plaintiff was assessed
as having affective disorders, i.e., bipolar disorder, major depressive disorder with anxiety,
and depression, and substance addiction disorders, i.e., continuous alcohol and marijuana
dependence. (Id. at 300, 303, 306.) These disorders resulted in mild restrictions in her daily
living activities, mild difficulties in maintaining social functioning, and moderate difficulties
in maintaining concentration, persistence, or pace. (Id. at 308.) They did not cause any
repeated episodes of decompensation of extended duration. (Id.)
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 two. (Id. at 297.) In the area of sustained concentration and persistence, she 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 was not
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significantly limited in the other six abilities. (Id. at 297-98.) In the area of social interaction,
Plaintiff was not significantly limited in all of the five listed abilities. (Id. at 298.) In the area
of adaptation, she was not significantly limited in three of the four abilities and was
moderately limited in her ability to travel in unfamiliar places or use public transportation.
On a Medical Source Statement of Ability to Do Work Related Activities (Mental),
Dr. Onik assessed Plaintiff as having moderate limitations in her abilities to understand,
remember, and carry out simple instructions; to make judgments on simple or complex workrelated decisions; and to carry out complex instructions, but only mild limitations in her
abilities to understand and remember complex instructions. (Id. at 313, 533.) Her ability to
interact with others is affected by her impairments. (Id. at 314, 534.) Specifically, she has
marked limitations in her abilities to interact appropriately with the public, co-workers, and
supervisors and in her abilities to respond appropriately to usual work situations and to
changes in a routine work setting. (Id.) Asked to identify the factors that supported his
assessment, Dr. Onik responded that Plaintiff is unable to interact with co-workers. (Id.) No
other capabilities were affected by her impairments. (Id.) He agreed with Plaintiff that her
disability began on June 9, 2010. (Id.) Dr. Onik completed the assessment in June 2011 and
identified his medical speciality as being a general family practitioner. (Id. at 315.)
The ALJ's Decision
The ALJ first determined that Plaintiff has not engaged in substantial gainful activity
since her SSI application date of July 29, 2010. (Id. at 12.) She next found that Plaintiff has
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severe impairments of lumbar disc disease, fibromyalgia, migraine headaches, hypertension,
bipolar disorder, and substance abuse, in early remission. (Id.) She did not have an
impairment or combination of impairments that met or medically equaled an impairment of
listing-level severity. (Id.)
Addressing Plaintiff's mental impairments, the ALJ found her to have mild restrictions
in her activities of daily living, moderate difficulties in social functioning, and moderate
difficulties in concentration, persistence, or pace. (Id. at 13.) The ALJ noted that Plaintiff's
daily activities included caring for her young daughter and her pets, doing household chores
during commercials, and generally being independent in self-care. (Id.) She has not had any
episodes of decompensation of extended duration. (Id.)
The ALJ next determined that Plaintiff has the RFC to perform sedentary work except
she is additionally limited to only occasionally balancing, stooping, kneeling, crouching,
crawling, and climbing ramps or stairs. (Id.) She is not to climb ladders, ropes, or scaffolds.
(Id.) She is to avoid concentrated exposure to hazardous machinery and to unprotected
heights. (Id.) Also, she is limited to performing simple and routine tasks with only
occasional interaction with supervisors, coworkers, and the public and occasional changes
in the work setting. (Id.) In making this determination, the ALJ found that Plaintiff's
descriptions of her limited exertional and mental abilities were not fully credible. (Id. at 1419.) Those descriptions were not supported by the objective medical evidence. (Id. at 15-18.)
For instance, her blood pressure was stable when she took her medication and her mental
impairments improved with treatment. (Id.) Although she was hospitalized in July 2010 for
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suicidal ideation, she responded to treatment and was discharged within twenty-four hours.
(Id. at 15.) The ALJ noted the various medications Plaintiff had been prescribed and the
treatment she had undergone, also noting her complaints of adverse side effects of hand
tremors, weakness, and fatigue and finding those complaints to not be substantiated by the
medical record and to be inconsistent with her daily functioning. (Id. at 14, 15, 19.) Other
detractors from her credibility were her work history; the exaggeration of tender points; the
refusal of Dr. Jennings to issue a statement of disability; inconsistencies in the record, e.g.,
differing reports of when the onset of back pain occurred and of how often her headaches
occurred; and the lack of any limitations placed on her by any medical source due to back
pain. (Id. at 18-19.)
Addressing the opinion of Dr. Onik, the ALJ found it lacked sufficient support, finding
it to be inconsistent with the record and noting that he was a family care physician and had
no expertise in mental health care. (Id. at 16.) The ALJ gave some deference to his opinion
by finding that Plaintiff had moderate limitations in social functioning. (Id.)
With her RFC, Plaintiff cannot return to her past relevant work as a fast food
restaurant cook. (Id. at 19.) With her RFC, age, and education, she can perform work that
exits in the national economy as described by the VE. (Id. at 19-20.)
The ALJ concluded that Plaintiff is not disabled within the meaning of the Act. (Id.
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Additional Records Before the Appeals Council
Plaintiff submitted to the Appeals Council records from Dr. Glanton that were not
before the ALJ. The earliest of these is of her June 19, 2012, visit to Dr. Glanton for a
recheck of her low back pain. (Id. at 538-41.) Plaintiff reported that the previous treatments
had not helped. (Id. at 538.) Her pain was a six on a ten-point scale. (Id. at 539.) On
examination, Plaintiff was as before. (Id. at 540.) She was to have an magnetic resonance
imaging (MRI) of her lumbar spine and return in three weeks. (Id. at 541.) Again, she was
encouraged to stop smoking. (Id.)
The MRI revealed a normal alignment of her lumbar spine; a slight protrusion of the
disc at L2-L3 far to the left lateral aspect without evidence of spinal stenosis or mass effect
on the nerve root; a moderate generalized bulge of the disc at L3-l4 with degenerate changes
in the facets with mild narrowing of the spinal canal in the transverse dimension; a mild to
moderate generalized bulge of the disc at L4-L5 with mild narrowing of the neural foramen
bilaterally; a far lateral right protrusion of the disc at L5-S1 with mass effect on the right
nerve root; and normal paraspinous soft tissue. (Id. at 559-60.)
Six days after the MRI, Plaintiff returned to Dr. Glanton, was diagnosed with L5-S1
disc herniation causing right lumbar radiculopathy, and received a right L5-S1 transforaminal
epidural steroid injection. (Id. at 542-45, 550-58.)
One month later, Plaintiff described her pain to Dr. Glanton as a zero, but reported
having no relief from the injection. (Id. at 546-49.) She was to be evaluated for surgical
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intervention. (Id. at 549.) Weight management was discussed as her body mass index was
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. § 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
h[er] previous work, but cannot, considering h[er] 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 h[er], or whether [s]he would be
hired if [s]he applied for work." 42 U.S.C. § 1382c(a)(3)(B).
"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)). "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.
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§ 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.
"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. 2009)
(Moore I). "[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 h[er] limitations.'" Moore I, 572 F.3d at 523 (quoting Lacroix, 465 F.3d at 887); accord
Partee v. Astrue, 638 F.3d 860, 865 (8th Cir. 2011).
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"'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, "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 I, 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
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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
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 v. Astrue, 623 F.3d 599, 602 (8th Cir. 2010); 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
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have "come to a different conclusion," Wiese, 552 F.3d at 730. "'If after reviewing the record,
the [C]ourt finds it is possible to draw two inconsistent positions from the evidence and one
of those positions represents the ALJ's findings, the [C]ourt must affirm the ALJ's decision.'"
Partee, 638 F.3d at 863 (quoting Goff, 421 F.3d at 789).
Plaintiff argues that the ALJ committed reversible error when (1) failing to determine
that her bipolar disorder did not satisfy Listings 12.04 (affective disorders) or 12.06 (anxietyrelated disorders); (2) failing to follow Social Security Ruling 96-8p when assessing her RFC;
(3) failing to consider all the relevant factors when evaluating the opinion of her treating
physician; and (4) assessing her credibility.
Listings 12.04 and 12.06. Plaintiff was diagnosed with bipolar disorder in July 2010.
A diagnosis in and of itself does not meet the criteria for listing-level severity. 20 C.F.R.
§ 416.925(d). See also Lott v. Colvin, 772 F.3d 546, 549 (8th Cir. 2014) ("[M]erely being
diagnosed with a condition named in a listing and meeting some of the criteria will not qualify
a claimant for presumptive disability under the listing.") (internal quotations omitted). "'An
impairment that manifests only some of those criteria, no matter how severely, does not
qualify.'" Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014) (quoting Sullivan v.
Zebley, 493 U.S. 521, 530 (1990)). "[Plaintiff] bears the burden of establishing that [s]he
meets all the criteria." Id. Plaintiff argues that she has carried this burden by showing, in
addition to satisfying the criteria of Paragraph A, she satisfies the Paragraph B criteria.12
There is no contention that Plaintiff satisfies the C criteria.
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These criteria are the same for both Listings – her disorder must result in at least two of the
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration.
20 C.F.R. Pt. 40, subpt. P. appx 1, §§ 12.04, 12.06.
Plaintiff contends that her bipolar
disorder satisfies these criteria as demonstrated in her consistently low GAF scores reflecting
Plaintiff's GAF scores range from a low of 42, assigned once by Dr. Clark in May
2012, to 60, assigned several times by Dr. Ross.13 The scores indicative of serious symptoms,
see note 9, supra, are a 48 assigned in July 2010 when Plaintiff was in residential treatment
for marijuana use, a 49 assigned in March 2011 when Plaintiff was being assessed at PFH,
and the 42 assigned by Dr. Clark. The scores indicative of moderate symptoms, see note 10,
supra are a 52 at her March 2012 assessment, seven 55s assigned by Dr. Ross, and seven 60s
assigned by Dr. Ross, including six 60s assigned between December 2011 and March 2012.14
Contrary to Plaintiff's position, Dr. Ross, a psychologist, is an acceptable medical source.
See 20 C.F.R. § 416.913(a)(2). See also 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].").
Although Plaintiff contends that the ALJ "merely sweeps aside the low GAF scores," the
Court notes that she dismisses her GAF scores above 50 for an unsupported reason. See note 13,
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Of the professionals evaluating Plaintiff's GAF, only Dr. Ross saw her more than once and
only she had a "longitudinal picture" of Plaintiff's mental impairment. See 20 C.F.R.
§ 416.927(c)(2)(i) (considering such a picture as a factor weighing in favor of a source's
"The [GAF] score is a subjective determination that represents the clinician's judgment
of the individual's overall level of functioning."15 Jones, 619 F.3d at 973 (internal quotations
omitted). "[T]he Commissioner has declined to endorse the [GAF] score for use in the Social
Security and [Supplemental Security Income] disability programs, and has indicated that
[GAF] scores have no direct correlation to the severity requirements of the mental disorders
listings." Id. at 973-74 (third alteration in original) (internal quotations omitted). Thus, "an
ALJ may afford greater weight to medical evidence and testimony than to GAF scores when
the evidence requires it." Id. at 974 (internal quotations omitted). In the instant case, the ALJ
did just that. The record before her reflects that the GAF scores indicating serious symptoms
were each assigned only once. The earliest of these was when Plaintiff was in residential
treatment for marijuana use. The next two are when her eligibility for support services was
being assessed. The last, and worst, was assigned by Dr. Clark. The strength of this rating,
however, is weakened by his examination report that she had logical thoughts, appropriate
dress and affect, normal speech, and adequate hygiene, insight, and judgment.
The Court notes that GAF scores are not used in the Fifth Edition of the Diagnostic and
See The Removal of the Multiaxial System in the DSM-5,
visited March 23, 2015).
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Plaintiff further argues that the ALJ erred in her assessment of the degree to which
Plaintiff is restricted in her activities of daily living, correctly noting that "'a claimant need
not be completely bedridden . . . to be considered disabled.'" Toland v. Colvin, 761 F.3d 931,
936 (8th Cir. 2014) (quoting Anderson v. Astrue, 696 F.3d 790, 794 (8th Cir. 2012) (alteration
in original). Plaintiff is not bedridden. She cares for her young daughter and family pets. She
does household chores. Although she testified she does these chores during commercial
breaks on television, she told Dr. Ross that she was keeping up with the housework. See
Kamann v. Colvin, 721 F.3d 945, 951-52 (8th Cir. 2013) (affirming ALJ's credibility finding
based on discrepancies between claimant's self-reported limitations and observed capacities);
Whitman v. Colvin, 762 F.3d 701, 705 (8th Cir. 2014) (deferring to credibility finding of
ALJ who 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).
Citing the Seventh Circuit case of Punzio v. Astrue, 630 F.3d 704, 710 (7th Cir.
2011), Plaintiff further argues that any ability to occasionally function in her activities of daily
living must be viewed in the context of mental illness and that people suffering from such
illness will have good days and bad days. In that case, the court found that the ALJ had
"cherry-pick[ed]" the notes of the claimant's treating psychiatrist "to locate a single treatment
note that purportedly undermines [the psychiatrist's] overall assessment of [the claimant's]
functional limitations." Plaintiff's reliance on this case is unavailing. Indeed, the notes of her
treating psychologist detract from Plaintiff's description of her functional limitations. And,
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unlike the long history of mental illness treatment and troubles of the claimant in Punzio,
apart from the sessions with Dr. Ross, Plaintiff's history reflects sporadic mental health
Social Security Ruling 96-8p. Plaintiff argues that the ALJ's RFC findings do not
include the specificity required by Social Security Ruling 96-8p. That Ruling "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. 96-8p, 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"). Additionally, an "ALJ need not provide a narrative discussion immediately
following each statement of an individual limitation in the RFC, if the court can otherwise
discern the elements of the ALJ's decision-making." Jones v. Astrue, 2011 WL 4445825,
*10 (E.D. Mo. Sept. 26, 2011) (citing Depover, 349 F.3d at 567). See also Hilgart v. Colvin,
2013 WL 2250877, *4 (W.D. Mo. May 22, 2013) (finding that a requirement that an ALJ
"follow each RFC limitation with a list of specific evidence on which the ALJ relied" to be
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inconsistent with the court's duty to base its decision on "all the relevant evidence") (internal
Plaintiff notes that she takes a lot of medications, but argues the ALJ failed to mention
what she takes and how it affects her. When summarizing the medical records, the ALJ did
identify the medications Plaintiff takes. The ALJ also referenced her complained side effects
of hand tremors, weakness, and fatigue.
The evidence is that Plaintiff's hypertension and fibromyalgia were stable when she
took the prescribed medication. "Impairments that are controllable or amenable to treatment
do not support a finding of disability." Davidson v. Astrue, 578 F.3d 838, 846 (8th Cir.
2009); accord Johnson v. Apfel, 240 F.3d 1145, 1148 (8th Cir. 2001). The evidence also is
that Plaintiff did not regularly pursue medical treatment for her mental illness or her
migraines. She argues that this is a reflection of her mental illness and the ALJ erred by not
considering it as such.
There is no evidence that any failure of Plaintiff to take medication or seek regular
mental health treatment was attributable to her mental illness. Cf. Pate-Fires, 564 F.3d at
945-46 (holding that ALJ had erred when finding that medical noncompliance of claimant
with bipolar disorder and long history of mental disorders and of numerous hospitalizations
for psychotic episodes and who had indicated that she stopped taking her medications because
she did not feel like she needed them was not justifiable; evidence "overwhelmingly
demonstrate[d]" that "noncompliance was attributable to [claimant's] mental illness"). Indeed,
Plaintiff sought mental health treatment when such was advantageous. For instance, she was
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evaluated twice at PFH in order to be eligible for their services. When engaged in court
proceedings to gain full custody of her daughter, she sought counseling from Dr. Ross. There
is nothing in the record to support her argument that the nature of her treatment was affected
in any way by her mental impairments. See e.g. Pratt v. Astrue, 372 Fed. App'x 681, 682
(8th Cir. 2010) (per curiam) (holding that ALJ's credibility finding was supported by, inter
alia, lack of mental health treatment).
Dr. Onik's MSS. On a Medical Source Statement of Ability to Do Work Related
Activities (Mental) (MSS), Dr. Onik assessed Plaintiff as having moderate limitations in her
abilities to understand, remember, and carry out simple instructions; to make judgments on
simple or complex work-related decisions; and to carry out complex instructions, but only
mild limitations in her abilities to understand and remember complex instructions. Also, she
has marked limitations in her abilities to interact appropriately with the public, co-workers,
and supervisors and in her abilities to respond appropriately to usual work situations and to
changes in a routine work setting. Plaintiff contends that the ALJ erred by not giving this
MSS the deference it was due given that Dr. Onik is her treating physician.
When evaluating opinion evidence, an ALJ is required to explain in her decision the
weight given to any opinions from treating sources, non-treating sources, and non-examining
sources. See 20 C.F.R. § 416.927(c)(2)(ii). The Regulations require that more weight be given
to the opinions of treating physicians than to those of other sources. 20 C.F.R. § 416.927(c)(2).
A treating physician's assessment of the nature and severity of a claimant's impairments should
be given controlling weight if the opinion is well supported by medically acceptable clinical and
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laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the
record. Id.; see also Forehand v. Barnhart, 364 F.3d 984, 986 (8th Cir. 2004). This is so
because a treating physician has the best opportunity to observe and evaluate a claimant's
since these sources are likely to be the medical professionals most able to provide
a detailed, longitudinal picture of [a claimant's] medical impairment(s) and may
bring a unique perspective to the medical evidence that cannot be obtained from
the objective medical findings alone or from reports of individual examinations,
such as consultative examinations or brief hospitalizations.
20 C.F.R. § 416.927(c)(2).
When a treating physician's opinion is not given controlling weight, the Commissioner
must look to various factors in determining what weight to accord the opinion, including the
length of the treatment relationship and the frequency of examination, the nature and extent of
the treatment relationship, whether the treating physician provides support for his findings,
whether other evidence in the record is consistent with the treating physician's findings, and the
treating physician's area of specialty. 20 C.F.R. § 416.927(c). The Commissioner "will always
give good reasons in [the] notice of determination or decision for the weight [given to the]
treating source's opinion." Id. Inconsistency with other substantial evidence alone is sufficient
to discount a treating physician's opinion. Goff, 421 F.3d at 790-91.
Plaintiff saw Dr. Onik for physical problems, e.g., diarrhea, blood pressure, sinus
problems, high cholesterol. The examination portion of his treatment notes are in a checklist
format with no line designated for psychological findings.16 He identified his specialty as
There is a line titled "Other" under Review of Symptoms and under Exam.
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general family practice. See Brown v. Astrue, 611 F.3d 941, 953 (8th Cir. 2010) (holding
that "[g]reater weight is generally given to the opinion of a specialist about medical issues in
the area of specialty, [e.g., a psychiatrist,] than to the opinion of a non-specialist") (quotations
omitted); 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). Where limitations in a treating physician's
opinion stand alone, were never mentioned in the physician's numerous treatment records, and
are not supported by any objective testing or reasoning, the ALJ does not err in discounting
that physician's opinion. Cline v. Colvin, 771 F.3d 1098, 1103-04 (8th Cir. 2014).
Additionally, the Court notes that Dr. Onik used a MSS when assessing Plaintiff's
mental functional limitations. "An MSS is a checklist evaluation in which the responding
physician ranks the patient's abilities, and is considered a source of objective medical
evidence." Reed v. Barnhart, 399 F.3d 917, 921 (8th Cir. 2005) (internal quotations
omitted). 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 MSS 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, 399 F.3d at 921 (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).
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In addition to the evaluation of Plaintiff's mental abilities being outside Dr. Onik's area
of expertise, she had only one visit to PMC before he completed the MSS when she was not
seen by Dr. Jennings. This visit was in January 2010 – seven months before her alleged
disability onset date – and was for sinus problems, headaches, and a runny nose. Moreover,
Dr. Onik's unfamiliarity with her psychological problems was made evident by the only
explanation he gave for his findings, i.e., she was unable to interact with co-workers, and by
the inconsistency in finding that she had moderate limitations in her abilities to understand
and remember simple instructions but only mild limitations in her abilities to understand and
remember complex instructions. The ALJ may properly disregard that portion of a physician's
report that is based on the claimant's discredited subjective complaints rather than on
objective medical evidence and may discount any conclusions based on those complaints,
Cline, 771 F.3d at 1104; McDade v. Astrue, 720 F.3d 994, 998 (8th Cir. 2013), or that is
internally inconsistent, see Bernard v. Colvin, 774 F.3d 482, 487 (8th Cir. 2014); Grable v.
Colvin, 770 F.3d 1196, 1201 (8th Cir. 2014).
Plaintiff argues that the finding of the U.S. Department of Education that her student
loans are discharge because she is totally and permanently disabled supports Dr. Onik's MSS.
This argument is unavailing. There is no criteria cited for the discharge and no explanation
of the findings on which it is based. See e.g. Thomas v. Barnhart, 278 F.3d 947, 957 (9th
Cir. 2002) (finding that ALJ properly relied on treating physician's examination findings
rather than "unsupported statements of disability in the student loan form").
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Credibility. In her next, and final argument, Plaintiff contends that the ALJ's adverse
credibility determination violates Social Security Ruling 96-7p and is patently erroneous
because she employed boilerplate language and failed to properly consider the supporting
statements of her friend and her husband.17
Before beginning her credibility analysis, the ALJ cited 20 C.F.R. § 416.929 and Social
Security Rulings 96-4p and 96-7p. (See R. at 13.) The Eighth Circuit Court of Appeals has
held that 20 C.F.R. § 416.929 "largely mirror the Polaski factors." Schultz v. Astrue, 479
F.3d 979, 983 (8th Cir. 2007). See also McDade, 720 F.3d at 998 (citing Polaski and 20
C.F.R. § 416.929 when discussing ALJ's credibility determination); Dipple v. Astrue, 601
F.3d 833, 836 (8th Cir. 2010) (same); Wiese, 552 F.3d at 733 (citing SSR 96-7p and Polaski
when discussing ALJ's credibility determination). In the Eighth Circuit, an "'ALJ [is] not
required to discuss methodically each Polaski consideration, so long as [s]he acknowledge[s]
and examine[s] those considerations before discounting [the claimant's] subjective
complaints.'" McDade, 720 F.3d at 998 (quoting Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir.
2000)) (alterations in original). "'Because the ALJ [is] in a better position to evaluate
credibility, [the Court] defer[s] to h[er] credibility determinations as long as they [are]
supported by good reasons and substantial evidence.'" Id. (quoting Cox v. Barnhart, 471 F.3d
902, 907 (8th Cir. 2006)) (first and fourth alterations in original).
Plaintiff also argues that the ALJ failed to not properly considering the decision of the U.S.
Department of Education. This argument is without merit for the reasons discussed above.
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The ALJ gave good reasons for discounting Plaintiff's credibility, including the lack
of supporting objective medical evidence, see Renstrom, 680 F.3d at 1066; the absence of
any restrictions placed on Plaintiff by any of her treating physicians, see Teague v. Astrue,
638 F.3d 611, 615 (8th Cir. 2011); her poor work record, see Buckner v. Astrue, 646 F.3d
549, 558 (8th Cir. 2011); inconsistencies in the record, see Van Vickle, 539 F.3d at 828; and
exaggeration of tender points, see Grable, 770 F.3d at 1202 (ALJ properly found claimant
lacked credibility based on symptom exaggeration).
Citing the Seventh Circuit case of Bjornson v. Astrue, 671 F.3d 640, 644-45 (7th Cir.
2012), Plaintiff contends that the ALJ's credibility determination must be reversed because
it is explained only by boilerplate language, specifically
"After considering the evidence of record, the undersigned finds that the
claimant's medically determinable impairments could reasonably be expected
to cause the alleged symptoms; however, the claimant's statements concerning
the intensity, persistence and limiting effects of these symptoms are not credible
to the extent they are inconsistent with the above [RFC]."
(Pl.'s Br. at 13, quoting R. at 15.) That court held in a later decision that reversal is not
necessary if the ALJ has "otherwise explained his conclusion adequately." Filus v. Astrue,
694 F.3d 863, 868 (7th Cir. 2012). In the instant case, the ALJ did so.
Moreover, this language, when supported by a consideration of the relevant factors,
has been cited by the Eighth Circuit when affirming an ALJ's adverse credibility
determination. See e.g., Medhaug v. Astrue, 578 F.3d 805, 814, 816-17 (8th Cir. 2009);
Wiese, 552 F.3d at 733; Van Vickle, 539 F.3d at 827-28.
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Plaintiff next argues that the ALJ improperly analyzed her friend's and her husband's
corroborative reports. Although the observations of third-parties may support a claimant's
credibility, see 20 C.F.R. § 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 friend's report generally attributed any functional limitations to Plaintiff's lack
of motivation and added little to the record. See Buckner, 646 F.3d at 559-60 (supporting
statement of claimant's girlfriend could be discredited for same reasons as was claimant's).
Her husband's supportive report was discounted because he "has a financial interest in the
outcome of the case"; this is a proper consideration. Choate v. Barnhart, 457 F.3d 865, 872
(8th Cir. 2006).
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, 646 F.3d at 556 (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.
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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 24th day of March, 2015.
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