Wren v. Colvin
Filing
23
MEMORANDUM OPINION: For the reasons set forth above, the final decision of the defendant Commissioner of Social Security is affirmed. An appropriate Judgment Order is issued herewith.. Signed by Magistrate Judge David D. Noce on 9/7/16. (KKS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
PATRICIA A. WREN,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
No. 2:15 CV 35 DDN
MEMORANDUM OPINION
This action is before the court for judicial review of the final decision of the
defendant Commissioner of Social Security denying the applications of plaintiff Patricia
Wren for disability insurance benefits and social security income benefits under Titles II
and XVI of the Social Security Act (the Act), 42 U.S.C. §§ 401, 1381. The parties have
consented to the exercise of plenary authority by the undersigned United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c). (ECF No. 8.) For the reasons set forth below, the
decision of the Administrative Law Judge is affirmed.
I.
BACKGROUND
Plaintiff was born on October 13, 1960. (ECF No. 12 at 197.) She filed her
application for Title II benefits on April 15, 2011, and her application for Title XVI
benefits on April 30, 2011. (Id. at 194–95.) She initially alleged an onset date of
December 31, 2002 (Id. at 497, 504), but amended that to May 15, 2009 (Id. at 11, 643.)
She alleges she was unable to work due to knee pain, depression, hepatitis C, asthma,
tuberculosis, high blood pressure, and idiopathic thrombocytopenia.
(Id. at 649.)
Plaintiff’s applications were denied on May 31, 2011 (id. at 193), and she requested a
hearing before an Administrative Law Judge. (Id. at 231.)
The ALJ held hearings on September 9, 2011; March 5, 2012; and September 6,
2012, and issued an unfavorable decision on September 12, 2012. (Id. at 100–85, 200–
13.) On December 13, 2012, the Appeals Council granted plaintiff’s request for review
and remanded the case to the ALJ with instructions to further evaluate plaintiff’s RFC
based on the assessment of Ollie Raulston Jr., M.D., and to include this more appropriate
RFC determination in his hypothetical to the Vocation Expert (“VE”). If needed the ALJ
was to obtain additional evidence from a medical expert regarding the severity of
plaintiff’s impairments.
Finally, if there were conflicts between the VE and the
Dictionary of Occupational Titles (“DOT”) and other used publications, the ALJ was to
explain how he resolved the conflicts. (Id. at 222–23.)
The ALJ held an additional hearing on October 2, 2013, (Id. at 48–99) and issued a
second unfavorable decision on December 9, 2013. (Id. at 11–26.) The Appeals Council
chose not to rehear plaintiff’s case (Id. at 1–4), and, therefore, the second decision of the
ALJ is the final decision of the Commissioner. 20 C.F.R. § 404.984(d).
II.
MEDICAL AND OTHER HISTORY
On March 29, 2007, plaintiff underwent a disability examination by a state
appointed physician, Mary Mullen, M.D. Dr. Mullen found that plaintiff has hepatitis C,
post-traumatic stress disorder, and a drug and alcohol dependence. Dr. Mullen, however,
opined that plaintiff’s disabilities would only be disabling for six to twelve months. (ECF
No. 12 at 760–61.)
On May 22, 2007, plaintiff was seen by Thomas Cabrera, M.D., to whom she was
referred through a social services program, Rain, for evaluation and treatment of her
hepatitis C. Plaintiff reported abstinence from alcohol and drugs since September 2, 2006.
She reported attending Alcoholics Anonymous three times a week and completing
counseling for her dependency issues. She reported smoking six packs of cigarettes a
week. He found she had hepatitis C, depression (treated with Wellbutrin), acid reflux
(treated with Nexium), and a rash. (Id. at 774–75.)
-2-
On June 14, 2007, Dr. Cabrera continued her prescriptions for depression and acid
reflux. Plaintiff needed an ultrasound to rule out a gallbladder problem, but due to
finances that was not possible at that time. (Id. at 772–73.)
On August 4, 2008, plaintiff completed an addiction severity index from the
Department of Mental Health.
It assessed that her chronic medical problems were
interfering with her life. Her problems were slight to moderately severe and treatment
was probably necessary. (Id. at 782, 787–93.)
Plaintiff was admitted to in-patient treatment for her addictions from August 4 to
September 2, 2008, after being referred by her parole officer.
She completed the
residential program and it was recommended that she complete an intensive outpatient
program, continue counseling, attend a twelve step program five to seven times a week,
and follow the directives of her parole officer. (Id. at 785–86.)
On September 26, 2008, an x-ray of plaintiff’s chest showed no active disease in
her chest. Her lungs were clear, her heart was within normal size limits, and her bones
were normal. (Id. at 882.)
On October 20, 2008, plaintiff was diagnosed by the Missouri Department of
Health with tuberculosis. She was prescribed Rifampin. Her tuberculosis was monitored
by the Missouri Department of Health through March 27, 2009. (Id. at 855–72.)
On October 24, 2008, plaintiff was seen again by the Missouri Department of
Health. Her chronic health issues included asthma, acid reflux, and hepatitis C. (Id. at
877–79.)
On October 28, 2008, medications were ordered for plaintiff. These medications
included Benzonatato, a cough suppressant; Loratadine, for allergies; Chantix, for
smoking cessation; Veramyst, for allergies; ProAir, for asthma; and, rifampin, for
tuberculosis. (Id. at 895.)
On November 20, 2008, plaintiff completed an addiction severity index from the
Department of Mental Health. It evaluated her hepatitis C and tuberculosis as between
-3-
considerable and extreme and found that treatment was absolutely necessary. Plaintiff
reported smoking about one pack of cigarettes a day. (Id. at 796–803.)
On February 5, 2009, plaintiff was seen at the Montgomery City Medical Clinic.
She reported an increase in fatigue, muscle soreness, joint pain, chest and back
discomfort. (Id. at 815.)
On September 17, 2009, plaintiff completed an Addiction Severity Index for the
Department of Mental Health. Her medical issues were assessed as only slightly to
moderately problematic and her substance abuse problems were moderate and probably
needed treatment.
Plaintiff was diagnosed with alcohol dependence, cannabis
dependence, cocaine abuse in sustained full remission, amphetamine in sustained full
remission, and opiate abuse in sustained full remission. (Id. at 834–42.)
On October 11, 2009, plaintiff visited the University of Missouri Emergency Room
for a severe cough worsened by smoking. James Gale Osgood, M.D., prescribed her
azithromycin, an antibiotic, and diagnosed acute bronchitis. (Id. at 917–19.)
Plaintiff was admitted to the McCambridge Center on September 19, 2009 and
discharged October 16, 2009. There are no treatment notes ascribed to this in-patient stay.
(Id. at 824, 848–49.)
Plaintiff participated in outpatient treatment at the McCambridge Center from
December 12, 2009, to May 10, 2010. Plaintiff stated that she was seeking a way to help
her stay off alcohol. (Id. at 823.)
On April 28, 2011, plaintiff was seen at the University of Missouri’s Emergency
Room in Columbia, Missouri by Henry W. David, M.D. She complained of chronic chest
pain that worsened with exertion. She was given Plavix and aspirin. She was also
admitted to the inpatient telemetry unit, where she was seen by Deepa S. Prabhakar, M.D.
Dr. Prabhakar ordered several tests, and he recommended she stay overnight for
observation. Plaintiff left against medical advice. (Id. at 904–14.)
On May 5, 2011, plaintiff filed a disability report citing back problems, knee pain,
depression, hepatitis C, asthma, tuberculosis, high blood pressure, and idiopathic
-4-
thrombocytopenia as the conditions preventing her from working. She was taking no
prescription medications at the time and did not list any ongoing treatment for any
condition. Her last medical visit was to an Emergency Room in Columbia, Missouri for
high blood pressure, chest pains, a blood disorder, and headaches on April 28, 2011. (Id.
at 648–58.)
On May 11, 2011, plaintiff completed a function report regarding her disabilities.
Plaintiff stated that she used to walk everywhere and complete chores, but could no longer
do those because she would “get very tired very fast.” Furthermore, she could only lie
down for about four hours due to back pain. She then stated that she can prepare simple
meals, do laundry and dishes as needed. She never goes outside unless it is directly to the
car, because it causes too much pain and aggravates her asthma. She stated that she could
no longer lift, squat, bend, stand, reach, walk, sit, kneel, talk, climb stairs, remember
things, complete tasks, concentrate, understand and follow directions, and use her hands.
She cannot handle stress anymore and has lost her confidence. (Id. at 694–704.)
On May 16, 2011, plaintiff’s brother completed a third party function report. He
stated that he and his sister live together in an apartment and they do light house work,
watch TV, and shop together. He stated plaintiff prepares her own simple meals every
day and can do indoor chores, including vacuuming and dishes. He stated she was limited
in her ability to lift, squat, bend, stand, reach, walk, sit, kneel, remember things, climb
stairs, use her hands, and concentrate. He claimed she cannot handle stress; she gets angry
and gets headaches. She also is easily confused. He stated she was currently depressed
and no longer goes out or socializes. (Id. at 708–15.)
On May 31, 2011, Marc Maddox, Ph.D., completed a psychiatric review technique
form after a telephone interview and review of her records. He diagnosed plaintiff with
depression, alcohol abuse, and cannabis dependence.
Dr. Maddox determined that
plaintiff had mild daily activity and social functioning restrictions, as well as moderate
concentration, persistence, or pace restrictions. Dr. Maddox provided a mental RFC
assessment. He found she was moderately limited in her ability to understand, remember,
-5-
and carry out detailed instructions or concentrate for extended periods of time. In all other
sections she was listed as not significantly limited. (Id. 923–37.)
On June 28, 2011, plaintiff provided an updated medication list. It included overthe-counter seasonal allergy relief; adult low-dose aspirin for high blood pressure; and
200mg ibuprofen, three times a day, for her pain. (Id. at 728.)
On May 31, 2011, Lindsey Struemph, a disability examiner, completed a physical
residual function (“RFC”) assessment. Plaintiff’s diagnoses included hepatitis C, a history
of tuberculosis, asthma, hypertension, back pain, and knee problems. Ms. Struemph
assessed that plaintiff could lift 20 pounds occasionally and 10 pounds frequently. She
could stand or walk about six hours in an eight-hour day. Plaintiff would have no
limitations in pushing, pulling, stooping, kneeling, crouching, or crawling, but should only
climb or balance occasionally. Plaintiff has no problems manipulating objects and has no
visual or communicative limitations. She should avoid extreme cold, heat, humidity,
vibration, respiratory triggers, and work hazards (i.e. heights and machinery).
Ms.
Struemph noted that plaintiff took no pain relief medication, but could perform personal
care, prepare simple meals, do laundry and dishes, ride in a car, go out alone, drive, shop,
and manage her finances. Ms. Struemph gave plaintiff’s allegations only partial weight.
(Id. at 186–92.) Finally Ms. Struemph found, although plaintiff could not perform her
past work, she could perform other work and, therefore, was not disabled. (Id. at 193.)
On November 21, 2011, plaintiff was diagnosed with bronchitis and given a
prescription for doxycycline hyclate. (Id. at 956–57, 1087–99.)
On November 23, 2011, plaintiff was seen by Sandi Reese, APRN-BC at the
Kneibert Clinic in Poplar Bluff, Missouri for a follow up visit. Her medications included
ibuprofen, promethazine (cough suppressant), Proventil nebulizer (asthma), and albuterol.
She continues to smoke and either is uncommitted or has no desire to quit. She reported
her asthma and hypertension had improved, and her hepatitis C remained unchanged.
Pulmonary tuberculosis, which is partially treated, was added as a new problem. (Id.
1042–45.)
-6-
On December 7, 2011, plaintiff was seen by Nurse Reese for a follow-up visit. Her
asthma was reported as improved, but her other conditions—hypertension, hepatitis C, and
pulmonary tuberculosis, remained unchanged. New health problems were hematuria,
blood in her urine, and gastroesophageal reflux disease. (Id. at 1056–60.)
On December 19, 2011, plaintiff was seen by Psychiatric Mental Health Nurse
Linda Sue Hammonds at the Kneibert Clinic in Popular Bluff, Missouri. Plaintiff asserted
she was having problems with depression and mood swings. She has extreme guilt and
does not eat enough. She denies suicidal and homicidal thoughts. She continues to have
flashbacks about the murder of her six month old daughter by her former husband in 1978.
Plaintiff has had at least eleven suicide attempts and hospitalizations since her daughter
was killed.
Her last attempt was in 2004.
Her last alcohol and cannabis use was
September 14, 2011. Her Global Assessment of Functioning was between 40 and 45.1
Nurse Hammonds diagnosed her with affective/bipolar disorder, posttraumatic stress,
polysubstance dependency, and antisocial personality disorder. (Id. at 1063–70.)
On December 19, 2011, plaintiff was seen by Nurse Reese for a follow-up. She
was prescribed ibuprofen, promethazine, Proventil, Albuterol, Cipro (an antibiotic),
Zantac (for heartburn), haloperidol, and keflex (an antibiotic). She was diagnosed with
two additional problems: a urinary tract infection and chronic obstructive pulmonary
disease (“COPD”). (Id. 1077–82.)
On January 6, 2012, plaintiff was seen at the Poplar Bluff Regional Medical Center
by Lauren Blackwelder, M.D., to be cleared for admission to an inpatient detox center.
(Id. at 1102–06.)
On January 10, 2012, plaintiff completed a daily activities report. She stated she
stopped working because of her limitations. She asserted she always has difficulties with
bathing, going to the bathroom, eating, sleeping, making decisions, finishing tasks, and
1
The American Psychiatric Association no longer uses a Global Assessment of Functioning
(“GAF”) score to assess a clinician’s judgment of an individual’s overall level of functioning.
Currently, a measure of mental disability is done with the World Health Agency’s Disability
Assessment Schedule (“WHODAS”). American Psychiatric Assoc., Diagnostic and Statistical
Manual of Mental Disorders 16 (5th ed. 2013).
-7-
shopping. She reported she often has problems dressing; using the telephone; visiting
friends or family; and doing group, church, or club activities. She seldom has problems
with taking medicines on time, remembering schedules, doing her personal business or
finances, and traveling.
She can always make easy meals but will seldom make
complicated meals. She defined easy as cereal, sandwiches, and microwave dinners, but
any type of prep work was complicated. She limited her standing to ten minutes, sitting to
15 to 20 minutes, and walking to 20 minutes, and she cannot carry anything after a few
minutes.
She cannot lift, bend, balance, see, hear, speak, remember, concentrate,
understand or follow instructions, or get along with supervisors without problems. She
always has problems with heat, cold, humidity, fumes, drafts, noise, or vibration. (Id. at
967–71.)
On January 27, 2012, plaintiff listed her current medications as haloperidol (an
antipsychotic), promethazine (for allergies), and cephalexin (for upper respiratory
infections). (Id. at 975.)
On April 10, 2012, plaintiff was examined by a state-appointed physician, Barry
Burchett, M.D. Dr. Burchett found plaintiff had chronic hepatitis C, COPD, chronic back
pain, GERD, and a history of thrombocytopenia. However, he concluded, “[t]here is a full
range of motion of the spine. Straight leg raise testing is negative. There is no spasm or
significant tenderness in the back. There is no evidence of compressive neuropathy in the
lower extremities.”
(Id. at 1118).
Dr. Burchett then completed a Medical Source
Statement (“MSS”) regarding plaintiff’s ability to do various work-related activities. Dr.
Burchett found plaintiff could frequently lift up to ten pounds and carry ten pounds
occasionally due to her back pain. She could sit for up to 30 minutes and stand or walk
for an hour without interruption. During a work day she could sit, stand, or walk up to
four hours a day. Plaintiff does not require a cane. Plaintiff could reach, handle, finger
and feel in both of her hands but could never push or pull. She could operate pedals with
either foot occasionally due to her issues with sitting.
Plaintiff should never climb
ladders, stoop, kneel, crouch, or crawl; she could occasionally climb stairs and ramps and
-8-
frequently balance. Plaintiff’s environmental limitations include never being exposed to
humidity, wetness, dust, odors, fumes, pulmonary irritants, and extreme cold or heat. She
has no limitations on the volume of noises. Plaintiff, by herself, is able to shop, travel,
ambulate, walk on uneven surfaces, use public transportation, climb a few steps, prepare
simple meals, perform personal hygiene matters, as well as lift, sort, or use paper and files.
(Id. at 1115–18.)
On April 29, 2012, Paul W. Rexroat, Ph.D., completed an MSS regarding
plaintiff’s mental health limitations. Dr. Rexroat found plaintiff to be depressed, suffering
from posttraumatic stress disorder and bipolar disorder with mild psychotic features.
Plaintiff was in full, sustained remission from marijuana abuse and partial, sustained
remission form alcohol dependence. Dr. Rexroat assessed her GAF score at 51. The MSS
stated that plaintiff would have moderate limitations regarding her ability to understand,
remember, and carry out complex instructions.
Plaintiff had moderate limitations
regarding her ability to make judgments on complex work related decisions. She would
also have moderate limitations interacting and responding appropriately with the public,
supervisors, co-workers, and changes in her routine. (Id. at 1127–34.)
From September 4 to 10, 2013, plaintiff was admitted to the University of Missouri
Hospital for a psychiatric evaluation. Plaintiff was having recurrent suicidal ideations and
was found by her brother, holding a knife to her chest. She admitted to continuing to use
marijuana and alcohol four or five days a week. Plaintiff was diagnosed with major
depressive disorder that is recurrent and severe. Her GAF at admission was 35. Upon
discharge plaintiff’s medications were Celexa (for depression), Skelaxin (for muscle pain),
Lithium (for bi-polar disorder), Prazosin (for nightmares), Lidoderm (For back pain), and
Albuterol (for wheezing). She remained ambivalent regarding her desire to live and
welcomed the end of the world. (Id. at 1138–52.)
On September 16, 2013, after her case was remanded by the Appeals Council,
plaintiff provided additional evidence regarding her medications.
She was taking
citalopram for depression; lithium, a mood stabilizer; prazosin for blood pressure and
-9-
nightmares; and an albuterol inhaler for asthma.
Plaintiff also takes 500mg of
acetaminophen four times a day for chronic back pain. Plaintiff also provided additional
information on her current physicians as well as her prescribed treatment. (Id. at 745.)
On December 17, 2013, plaintiff was seen for an EKG and a stress test due to her
high cholesterol and history of smoking. Plaintiff was found to have an intermediate to
high probability for underlying ischemic heart disease.
She was found to have a
hypertensive response to exercise but a fair tolerance given her age.
Plaintiff was
prescribed Toprol for hypertension and encouraged to begin a baby aspirin regimen. She
was scheduled for an outpatient cardiac catheterization. (Id. at 1169–73.)
On December 30, 2013, an outpatient cardiac catheterization was performed by
Charles Tillman, M.D. It showed normal coronary arteries and normal left ventricular size
and systolic function. Plaintiff was encouraged to stop smoking and continue her baby
aspirin and medication regimen—TriCor (for cholesterol), Ventolin (asthma), Toprol,
Claritin, and aspirin. (Id. at 1174–80.)
On January 13, 2014, an x-ray was performed on plaintiff’s back by George Cyriac,
M.D. Plaintiff has marked narrowing in the L4-L5 (lower back) disc spaces with bony
sclerosis and osteophyte formations. It showed mild to moderate degenerative changes
with no fractures. There is moderately advanced degenerative disc disease at L4-L5 and
L5-S1. Mild to moderate bilateral foraminal stenosis at L4-5 and L5-S1 is present.
Moderate facet arthropathy at L4-5 and L5-S1 is also present. (Id. at 1181–82.)
On January 24, 2014, plaintiff was seen by Marta Fliss, Ph.D., at East Central
Missouri Behavioral Health Services for an assessment.
symptoms as insomnia, nightmares, mood swings.
Plaintiff reported current
Plaintiff also reported she was
diagnosed with bipolar disorder, borderline personality disorder, PTSD, and depression.
Plaintiff was assessed as having PTSD, bipolar disorder, and opioid dependence in early
remission, and borderline personality disorder. (Id. 1154–62.)
On January 31, 2014, plaintiff was seen by Psychiatric Mental Health Nurse
Practitioner Catherine Browning.
Plaintiff had no suicidal or homicidal ideations.
- 10 -
Plaintiff was described as cooperative but agitated. She has some visual hallucinations,
but no specific delusions.
Her diagnosis remained PTSD, bipolar disorder, opioid
dependence, and borderline personality disorder. Plaintiff was prescribed lithium and
prazosin. (Id. at 1163–67.)
On February 3, 2014, plaintiff was seen by John Lucio, D.O., for her lower back
pain. She assessed her pain as being between four and seven on a scale of ten. Her
medications at this time were Metoprolol (high blood pressure), lithium, ranitidine
(ulcers), Ventolin, TriCor, prazosin, aspirin, and Benadryl (allergies). She appeared to be
in no acute distress. She had tenderness from T4 to L2, midline and bilaterally. She did
not need a cane or walker to ambulate. She could toe-to-heel walk, albeit with some
balance issues. Dr. Lucio explained that complete pain relief cannot be expected, but he
would aim to reduce the flare-ups and have moderate improvement in pain symptoms.
(Id. at 1183–87.)
On March 10, 2014, plaintiff followed-up with Dr. Lucio regarding her back pain.
Plaintiff could not take the steroids prescribed to her, because she could not afford them.
Dr. Lucio changed her medication to Mobic, a non-steroidal pain reliever. (Id. at 1189–
90.)
On March 20, 2014, Peter D. Perll, M.D., performed an upper endoscopy on
plaintiff. The endoscopy showed no large mass lesion or ulcers. (Id. at 1191–92.) She
also underwent a colonoscopy while sedated. No mass lesions or polyps were shown (Id.
at 1193–94.)
On March 31, 2014, plaintiff saw Dr. Lucio for a follow-up appointment regarding
her lower back pain. Dr. Lucio provided plaintiff with an epidural steroid injection
directed at the L5-S1 region for pain management. (Id. at 1195–99.)
On April 22, 2014, an x-ray was taken of plaintiff’s lower back which showed
degenerative changes in her lower lumbar spine. (Id. at 1200.) She was seen by Dr.
Lucio, who noted after the last steroid injection plaintiff’s pain improved 70%. Plaintiff
- 11 -
was attacked by two pit bulls three days earlier and she received cuts and lesions on her
back which continued to bother her. (Id. 1201–02.)
On April 25, 2014 an MRI was performed on plaintiff’s right knee. The MRI
showed that her anterior cruciate ligament had a moderate grade partial tear and there was
a torn medial meniscus. (Id. at 1203.)
On April 26, 2014, Dr. Lucio provided plaintiff with an epidural steroid injection in
her lower back for pain management. (Id. at 1204–06.)
On May 6, 2014, plaintiff underwent an EKG and chest x-ray. There were no
changes from previous findings. (Id. at 1207–09.)
First ALJ Hearing
The ALJ held a hearing September 9, 2011. (Id. at 100-26.) Plaintiff attended
alone, without legal representation. The ALJ then explained to plaintiff that she could
retain an attorney for this process. (Id. at 101–02) The ALJ explained why an attorney to
represent her may be helpful as a social security appeal involves significant amount of
medical evidence, as well as the questioning of witnesses, including plaintiff and a
vocational expert. (Id. at 105–06).) The ALJ explained how different attorneys may be
compensated in social security appeals. (Id. at 108–09.) He then went over how the fivestep process in a social security appeal works. (Id. at 113–16.) The ALJ then explained to
plaintiff all of the parts of her social security file and admitted them as evidence in the
trial. (Id. at 117-22.) Plaintiff then decided it was better for her to find a lawyer to assist
her in the process, and the ALJ continued the hearing. (Id. at 124–25.)
Second ALJ Hearing
On March 5, 2012, the ALJ held a second hearing, during which plaintiff was
represented by counsel. There was no vocational expert present. (Id. at 147–185.)
Plaintiff testified to the following.
She is 51 years old, single, with no children, and is currently house sitting for a
friend. (Id. at 150–51.) She can drive and has a license but does not own a vehicle.
- 12 -
Plaintiff states she does not sleep well and wakes between 3:00 and 6:00 a.m. every
morning. She makes coffee, does some cooking, and does the laundry about once a week.
She can wash basic dishes. She cannot use a vacuum cleaner, sweep, or mop due to her
back pain. Plaintiff can still drive, shop, pay bills, read, fish, camp, watch TV, and walk
up to two blocks, but not for a sustained length of time due to pain—headaches, cramps in
her hands. (Id. at 159–61.) She does not have issues socializing with the neighbors or at
her AA meetings. She has been using AA for the past 35 years and her last drink was
November 1, 2011. She has used marijuana, heroin, cocaine, and speed over her lifetime.
(Id. at 161–63.) Plaintiff walks to the supermarket, which is about three blocks away. (Id.
at 163.) She can bathe herself, but does get a little dizzy and unstable. (Id. at 164.) She
smokes anywhere six to ten cigarettes a day, even though she has COPD and takes
Albuterol for her breathing problems. She was last in the emergency room in November
2011 for bronchitis. (Id. at 165–166.)
Plaintiff was taking haloperidol, promethazine, and cefazolin, but could no longer
afford them. Many of her medications either adversely affect her liver or her tuberculosis.
(Id. at 166–68.) She is also diagnosed with idiopathic thrombocytopenia, a disorder than
can lead to easy or excessive bruising and bleeding. She also has severe back pain after
years of hard labor working in kitchens and construction work. Her knees also hurt and
she has had surgery on her right knee. Plaintiff has high blood pressure and would take
medication for it, but she cannot afford it right now due to Medicaid discontinuing
coverage. Plaintiff also asserted that she has muscle fatigue in her arms. (Id. at 169–73.)
Plaintiff asserts she suffers from depression evidenced by frequent crying spells,
seeing hallucinations, and hearing voices. She has attempted suicide several times, but
none recently. (Id. at 175.)
Plaintiff states she can sit for a while, but it is very uncomfortable. She can stand
for only ten minutes before it hurts and she has not lifted anything over ten pounds in a
very long time. She has problems bending, stooping, crouching, kneeling, and crawling.
Recently, she has only been able to keep a job for four days at most. (Id. at 177–79, 182.)
- 13 -
Plaintiff asserts she gets confused very quickly and then gets frustrated and walks
away from what she is doing, rather than complete the task. Plaintiff naps four out of
seven hours during the day in addition to her normal sleeping hours, which are often
interrupted by poor sleep. She asserts that in 2007 her doctor told her she had an
autoimmune deficiency but was not sure which one it was, but plaintiff should see a
specialist. (Id. at 180–82.)
The ALJ noted the lack of medical documentation in the case to support plaintiff’s
ailments and ordered a consultative orthopedic and psychological examination. (Id. 183.)
Third ALJ Hearing
On September 6, 2012, the ALJ held a third hearing because after the March 5,
2012 hearing, several additional exhibits were admitted. Plaintiff was represented by
counsel. A vocational expert, Darrell W. Taylor, Ph.D., and a medical expert, Ollie D.
Raulston, M.D., were also present. (Id. at 129–44, 400–02.)
Dr. Raulston testified to the following. Dr. Raulston examined plaintiff’s records
which have very little evidence in them—a diagnosis of history of low back pain, dorsal
pain, and knee pain. Plaintiff’s first real exam was conducted by Dr. Burchett in April of
2012, at the request of the ALJ. (Id. at 132.) Dr. Raulston stated that none of plaintiff’s
diagnosis would meet a listing and her RFC would fit the light duty physical demand
level.
This would entail lifting and carrying 20 pounds occasionally, 10 pounds
frequently; standing, walking, and sitting six out of eight hours a day, with an option to
change positions every hour for at least five minutes; she can balance, kneel, and stoop
frequently; and climb stairs, ramps, crawl, and crouch occasionally. She would be limited
to frequent overhead reaching due to her low back pain. Environmentally, she should not
be on unprotected heights, scaffolding, ladders, and ropes. She could only be occasionally
exposed to fumes, gases, and so forth. (Id. at 132–33.) Dr. Raulston found plaintiff’s
limitations to be less than those found by Dr. Burchett, because his own examination
yielded completely normal findings—no tenderness or spasms in the lower back; no motor
- 14 -
or sensory deficits; normal reflexes; no atrophy; an ability to fully squat; walk heel and toe
walk normally; and a normal gait. Plaintiff sat through the exam with ease. Dr. Raulston
opined that Dr. Burchett’s limitations were based on plaintiff’s subjective symptoms. (Id.
at 134–35.)
Plaintiff then testified that Dr. Burchett’s exam was only fifteen minutes long and
was a predominantly hands-off exam. She wobbled during the toe-to-heel walk and had to
have assistance to get up from the squat. (Id. at 135–36.)
Vocational Expert Dr. Taylor testified to employment prospects of hypothetical
persons. The ALJ’s first hypothetical was of a person who could lift, carry, push, and pull
20 pounds occasionally and less than ten pounds frequently. This person could sit, stand,
and walk for six out of eight hours a day. Occasional climbing, stooping, crouching,
kneeling, crawling is acceptable, but no exposure to ladders, ropes, or scaffolds. This
person could not have concentrated exposure to moving machinery, unprotected heights,
dust, fumes, gases, extreme cold or heat, humidity, and vibration. According to the VE
this person could be a courier again, but not a kitchen worker. Also, this person could
perform other light, unskilled work such as housekeeping. (Id. at 139–40.)
Plaintiff’s attorney then limited a hypothetical person to only lifting ten pounds at
most; carrying ten pounds at most occasionally; and only standing, sitting, or walking one
hour at a time. The VE stated this person would be limited to sedentary work.
Plaintiff’s attorney further limited this person to only a moderate ability to make
complex work-related decisions; moderate problems interacting with the public,
supervisors, or co-workers; as well as, moderate limitations in responding appropriately to
usual work situations and routine changes. The VE stated this person could still do
sedentary work, but it would just be unskilled work.
The ALJ followed-up by asking whether only simple and repetitive instructions
were allowed, would housekeeper, courier, and hand packer still be available. The VE
stated that they would still be available. (Id. at 141–43.)
- 15 -
First Decision of the ALJ
On September 21, 2012, the ALJ issued a decision unfavorable to plaintiff. The
ALJ found that plaintiff was not gainfully employed since December 31, 2002. She may
have worked some after June 2011, but there is no clear evidence that it rose to the level
of substantial gainful activity. (Id. at 201–02.) The ALJ found that she had the severe
impairments of disorders of the back, hepatitis C, asthma, bipolar disorder, and PTSD.
(Id. at 203.) The ALJ then found that none of these impairments or combination of these
impairments met or medically equaled any of the listed impairments. (Id.) Additionally,
the ALJ assessed plaintiff’s mental impairments using “paragraph B” criteria and found
that she only had mild restrictions regarding daily activities, moderate difficulties in social
functioning, and has moderate difficulties regarding concentration, persistence, or pace.
He found that there have been no extended episodes of decompensation. (Id. at 204.)
Additionally, the ALJ found that “paragraph C” criteria were also not met. (Id.)
The ALJ determined that the plaintiff’s RFC included the ability to perform light
work, but only to lift and carry 20 pounds occasionally and less than 10 pounds
frequently. He found that plaintiff can stand, walk, or sit for a total of six hours in an
eight hour workday and can occasionally climb stairs, stoop, crouch, kneel, and crawl, but
that she should not climb ladders, ropes, and scaffolds and never be exposed to moving
machinery, unprotected heights, dust, fumes, gases, extreme cold, humidity, or vibrations.
He found that plaintiff can perform simple repetitive tasks with occasional social
interaction.
(Id. at 204.)
Plaintiff could still perform her past work as a courier.
Regarding other types of work under the light work category, the ALJ considered the
additional RFC limitations in conjunction with plaintiff’s age, education, and experience.
(Id. at 212) The ALJ found that plaintiff could perform other work that exists in the
national and state economies such as housekeeper and hand packer. (Id. at 211–12.) The
ALJ then found plaintiff was not disabled. (Id. at 212.)
- 16 -
Appeals Council’s Remand
On December 13, 2012, the Appeals Council remanded plaintiff’s case back to an
ALJ for resolution of two issues. First, Dr. Raulston opined that plaintiff would need to
adjust positions every hour for five minutes. This limitation was not included in the RFC
or hypotheticals posed to the VE. Second, the ALJ determined that plaintiff has past
relevant work as a courier, but it was never determined that this work as a courier was
performed at a level constituting substantial gainful activity. Upon remand, the Appeals
Council instructed an ALJ to give further consideration to the RFC and the opinion of Dr.
Raulston; if necessary, obtain an additional medical expert’s opinion regarding plaintiff’s
impairments; and obtain an additional VE opinion regarding the assessed limitations, as
established by the record as a whole, on the claimant’s occupational base. (Id. at 222–23.)
Fourth ALJ Hearing
On October 2, 2013, the ALJ held a hearing in which plaintiff was present with
counsel. (Id. at 48–99.) Plaintiff testified to the following.
She had a suicidal episode and was admitted to the University of Missouri
Psychiatric Center on September 4, 2013. She began drinking after she was reminded of
her ex-husband killing her six month old daughter in 1979. This was approximately her
tenth time attempting suicide and her fifth time being hospitalized.
(Id. at 54–55.)
Plaintiff testified that she can no longer hold a gallon of milk, because of her lack of grip
strength. She can only walk about a block-and-a-half to the mailbox, but has to rest after
reaching the mailbox. She can dress herself without assistance from another, but has
balance issues. She can bathe herself without assistance from another but has to hold the
rail in the bathtub due to balance issues. (Id. at 58–59.) Plaintiff uses a cane or a stick to
help her walk due to her dizziness, although it is not prescribed for her. (Id. at 75–76.)
Plaintiff’s last job was in June 2011 and lasted only four days. She was removed
from the schedule and fired due to her inability to do the job, fry cook. This situation has
- 17 -
happened several times in the past few years—she was “removed from the schedule” due
to her inability to do the job that she was hired to perform. She worked as a courier for a
bank, but then she drove a truck through her house, on purpose, and was arrested. She no
longer drives because she gets confused easily and her arms become tired, numb, and
tingly. (Id. at 61–62.) The majority of the day plaintiff remains in a reclining loveseat
because of the pain and fatigue. She takes several naps during the day because her sleep is
broken. (Id. at 63–64.)
Plaintiff has applied for, but does not have Medicaid, and her prescriptions have
been filled and paid for by her brother. Plaintiff was employed full-time in the majority of
the jobs listed including cook, dispatcher, warehouse worker, and courier. (Id. at 67–69.)
Plaintiff has had alcohol in the last four months, even though she is an alcoholic. (Id. at
70.) Plaintiff asserts that she cannot work because of her back pain, headaches, confusion,
and inability to lift or do certain repetitive motions such as cutting and chopping. (Id. at
71.) Her asthma is aggravated by household cleaners such as bleach. She currently has a
bulge in her spine and her middle and lower back hurts. She has difficult lifting, standing,
and walking. Her lifting requirements as a courier were limited to five to ten pounds. She
has not been able to lift anything over ten pounds for many years (Id. at 78–80.)
Plaintiff testified that she would go to the doctor if she could afford it, but without
assistance from Medicare.
She had many unpaid medical bills, and will go to the
emergency room when she absolutely has to and then cannot pay the bills. Her hepatitis C
medications were paid for a by a federally funded program, which was discontinued. Her
tuberculosis medications caused problems with her liver due to the hepatitis C. (Id. at 73–
75.)
A Vocational Expert, Deborah Determan, M.S., testified after plaintiff clarified
some of her past work, and the ALJ provided a detailed hypothetical person. The ALJ
limited the RFC to occasionally lifting up to 20 pounds, frequent lifting and carrying up to
ten pounds; standing, walking, and sitting for six out of eight hours in the work day; no
climbing on ropes, or ladders and scaffolds; only occasional climbing on ramps or stairs;
- 18 -
no more than occasional stooping, kneeling, crouching or crawling;
and avoiding
concentrated exposure to extreme hot or cold, humidity, vibrations, gas, fumes, odors,
dust, unprotected heights, and dangerous moving machinery.
This person could
understand, remember, and carry out simple instructions, make simple decisions, and
tolerate minor, infrequent changes in routine. This person should not work around young
children. (Id. at 84–85.) Under these limitations, the person could still work as a courier,
but no other past work. This hypothetical person could also be a photocopy machine
operator, mailing-machine operator, or a mailroom clerk. All of these jobs are light
exertional category with a skill level of two. (Id. at 85–87.)
The second hypothetical provided by the ALJ included a person who had the same
above limitations but also a requirement to change position every sixty minutes for up to
five minutes at a time. The VE opined that a person with the additional limitation of
changing positions could still work as a courier, because that occupation is driving and
then getting out of the vehicle and delivering and then sitting and driving again. (Id. at
87–88.) Additionally, that person could still work as a photo-copy machine operator, a
mailroom clerk, or a routing clerk. Based on the VE’s experience, knowledge, and
training these jobs would allow for a person to alternate positions. (Id. at 88–89.)
The ALJ then provided a different hypothetical which limited a person to lifting
and carrying up to 10 pounds occasionally and frequently; standing or walking for four
hours out of an eight-hour workday, but only for an hour at a time; and sitting for four
hours out of an eight-hour workday, but only for thirty minutes at a time. This person
could not push or pull, only occasionally reach, frequently handle, and occasionally
operate foot controls. This person could not climb on ladders or scaffolds, stoop, kneel,
crouch, or crawl. This person could occasionally climb stairs or rams and frequently
balance. There could be no exposure to humidity, wetness, dust, odors, fumes, extreme
temperatures and only occasional exposure to moving mechanical parts or operating a
motor vehicle. This person could be exposed to frequent vibration. The ALJ described
this as sedentary, unskilled, and limited to only simple instructions. The VE opined that
- 19 -
this person could not work as a courier with those limitations, nor could the person
perform any work.
The ALJ then changed the hypothetical person to one that could frequently handle,
but could not push or pull and could only occasionally operate foot controls. Two
sedentary and unskilled jobs would be available for this person: document preparer and
order clerk for food and beverage. These possible jobs, however, are not consistent in the
Dictionary of Occupational Titles, because they require sitting six out of eight hours in a
workday, which this person, hypothetically, cannot do. The VE based her decision on her
experience, knowledge, and training. (Id. 90–91.)
Claimant’s attorney then questioned the VE. The VE admitted that a courier job
would require possible exposure to extreme temperatures in the summer and winter, which
does not align with the ALJ’s hypotheticals. When addressing this limitation on redirect
by the ALJ, the VE highlighted that it would depend on what “concentrated exposure”
meant. The VE then opined it is unlikely that a courier position would be available to
someone who could not be exposed to extreme heat or cold. However, the VE noted that
there is no stooping requirement in the order clerk or document preparer jobs. The VE
was using an electronic program which compiled the Dictionary of Occupational Titles
and not the actual book in her determinations. (Id. at 92–96.)
The attorney then asked a hypothetical a hypothetical question about a person
prevented from stooping, kneeling, crouching, or crawling; only occasionally reaching;
and never pushing or pulling. The VE opined that those limitations would mean a person
could not be employed gainfully. (Id. at 96–97.)
III.
DECISION OF THE ALJ
On December 9, 2013, the ALJ found plaintiff not disabled. (Id. at 11–26.) At
Step One the ALJ found that plaintiff met the insured status requirements through
- 20 -
December 31, 2012, and had not been engaged in substantial gainful activity since
December 31, 2002, her alleged onset date. (Id. at 14.)
At Step Two the ALJ found plaintiff had severe impairments that have more than a
minimal effect on her ability to engage in work. These impairments are hepatitis C,
asthma, chronic obstructive pulmonary disease, a history of tuberculosis, mild
degenerative disc disease of the lumbar spine, bipolar disorder, PTSD, alcohol dependence
in partial remission, and cannabis dependence in full, sustained remission. The ALJ also
determined that the plaintiff had several nonsevere ailments: hypertension, GERD, and
knee pain. (Id. at 14.) The ALJ determined that plaintiff’s complaints of idiopathic
thrombocytopenia and hand-shaking were not medically determinable, because they had
not been established by an acceptable medical source. (Id. at 15.)
At Step Three the ALJ went through each disorder separately and compared
plaintiff’s symptoms to those listed in the C.F.R. to determine if any met a listing. The
ALJ found none of her disorders, alone or in combination, meet or are medically
equivalent to a presumptively disabling listing under 20 C.F.R Part 404, Subpart P,
Appendix 1. Additionally, the ALJ considered plaintiff’s mental impairments in relation
to “paragraph B” and “paragraph C” criteria2 and found they are also not satisfied.
Specifically, the ALJ found plaintiff only has mild restrictions in daily living and social
functioning and only moderate difficulties regarding pace, persistence, and concentration.
She has not experienced repeated episodes of extended decompensation due to her mental
impairments. (Id. at 15–16.)
The ALJ then considered the entire record and determined plaintiff had the RFC to
perform light work, which included lifting up to twenty pounds occasionally and ten
pounds frequently. Plaintiff can stand, walk, and sit six hours out of eight in a workday.
She must be able to change positions every hour for up to five minutes at a time. Plaintiff
should never climb ropes, ladders, or scaffolds and only occasionally climb ramps or
stairs, stoops, kneel, crouch, or crawl.
2
She should avoid concentrated exposure to
“Paragraph B and C” criteria are listed in 20 C.F.R. Subpt. P, app. 1, § 12.00.
- 21 -
temperature extremes, humidity, vibrations, fumes, odors, dust, gases, or poorly ventilated
workspaces. She should avoid the hazards of heights or moving machinery as well. She
is able to understand, remember, and carry out at least simple instructions. She can only
make simple decisions at work and tolerate only minor infrequent changes in routine. She
cannot work around infants or young children. (Id. at 17.)
At Step Four, the ALJ found plaintiff unable to perform any past relevant work.
(Id. at 25.)
Finally, at Step Five the ALJ, based on the testimony of a VE, found that work
plaintiff could perform existed in significant numbers in both the national and state
economies. (Id. at 25–26.)
IV.
GENERAL LEGAL PRINCIPLES
The court’s role on judicial review of the Commissioner’s decision is to determine
whether the Commissioner’s findings comply with the relevant legal requirements and are
supported by substantial evidence in the record as a whole. Pate-Fires v. Astrue, 564 F.3d
935, 942 (8th Cir. 2009). “Substantial evidence is less than a preponderance, but is
enough that a reasonable mind would find it adequate to support the Commissioner’s
conclusion.” Id. In determining whether the evidence is substantial, the court considers
evidence that both supports and detracts from the Commissioner's decision. Id. As long
as substantial evidence supports the decision, the court may not reverse it merely because
substantial evidence exists in the record that would support a contrary outcome or because
the court would have decided the case differently. See Krogmeier v. Barnhart, 294 F.3d
1019, 1022 (8th Cir. 2002).
To be entitled to disability benefits, a claimant must prove she is unable to perform
any substantial gainful activity due to a medically determinable physical or mental
impairment that would either result in death or which has lasted or could be expected to
last for at least twelve continuous months.
42 U.S.C. §§ 423(a)(1)(D), (d)(1)(A),
1382c(a)(3)(A); Pate-Fires, 564 F.3d at 942. A five-step regulatory framework is used to
- 22 -
determine whether an individual is disabled. 20 C.F.R. § 404.1520(a)(4); see also Bowen
v. Yuckert, 482 U.S. 137, 140–42 (1987) (describing the five-step process); Pate-Fires,
564 F.3d at 942 (same).
Steps One through Three require the claimant to prove (1) she is not currently
engaged in substantial gainful activity, (2) she suffers from a severe impairment, and (3)
her disability meets or equals a listed impairment. 20 C.F.R. § 404.1520(a)(4)(i)-(iii). If
the claimant does not suffer from a listed impairment or its equivalent, the
Commissioner’s analysis proceeds to Steps Four and Five. Step Four requires the
Commissioner to consider whether the claimant retains the RFC to perform past relevant
work (“PRW”).
Id. at § 404.1520(a)(4)(iv).
The claimant bears the burden of
demonstrating she is no longer able to return to his PRW. Pate-Fires, 564 F.3d at 942. If
the Commissioner determines the claimant cannot return to PRW, the burden shifts to the
Commissioner at Step Five to show the claimant retains the RFC to perform other work
that exists in significant numbers in the national economy.
Id.; 20 C.F.R. §
404.1520(a)(4)(v).
V.
DISCUSSION
Plaintiff argues that the ALJ erred by improperly disregarding plaintiff’s subjective
complaints of pain and misevaluating the evidence under the Polaski standard. Polaski v.
Heckler, 739 F.2d 1320 (8th Cir. 1984). Plaintiff argues that the ALJ’s reasons for
discrediting her—a lack of medical evidence, plaintiff’s attempts to work, sporadic use of
medication, and sporadic treatment—were improper and not harmless. (ECF No. 19 at
61–67.) The Commissioner responds that an ALJ’s credibility determinations are deferred
to if supported by valid reasons, and the record as a whole supports a finding that
plaintiff’s subjective complaints were not supported. (ECF No. 22 at 5.) The court agrees
with the Commissioner.
- 23 -
The Polaski Standard
In evaluating a plaintiff’s subjective symptoms using the Polaski factors, the ALJ
must make a credibility determination. Polaski, 739 F.2d 1320 (8th Cir. 1984); see Ellis v.
Barnhart, 392 F.3d 988, 995-96 (8th Cir. 2005). These factors include: (1) the plaintiff’s
daily activities; (2) the duration, frequency, and intensity of the pain; (3) dosage,
effectiveness, and side effects of medication; (4) precipitating and aggravating factors; and
(5) functional restrictions. Polaski, 739 F.2d at 1322. The ALJ does not need to discuss
each factor separately; rather, the court will review the record as a whole to ensure
relevant evidence was not disregarded by the ALJ. See McCoy v. Astrue, 648 F.3d 605,
615 (8th Cir. 2011); see also Dunahoo, 241 F.3d 1033, 1039 (8th Cir. 2001) (“If the ALJ
discredits a claimant's credibility and gives a good reason for doing so, we will defer to its
judgment even if every factor is not discussed in depth.”). The ALJ must make an express
credibility determination for rejecting plaintiff’s complaints of pain by giving reasons for
discrediting the testimony, settling the inconsistencies, and discussing the Polaski factors.
Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000).
Subjective complaints may be discounted if there are inconsistencies in the record
as a whole. Polaski, 739 F.2d at 1322; see also McDade v. Astrue, 720 F.3d 994, 998 (8th
Cir. 2013) (the ALJ discounted plaintiff’s credibility when the evidence showed that
plaintiff “was not unduly restricted in his daily activities, which included the ability to
perform some cooking, take care of his dogs, use a computer, drive with a neck brace, and
shop for groceries with the use of an electric cart.”); Medhaug v. Astrue, 578 F.3d 805,
817 (8th Cir. 2009) (“[A]cts such as cooking, vacuuming, washing dishes, doing laundry,
shopping, driving, and walking, are inconsistent with subjective complaints of disabling
pain.”). An ability to complete daily activities may also be used in mental limitation
assessments. Roberts v. Apfel, 222 F.3d 466, 469 (8th Cir. 2000) (“[Plaintiff’s] mental
impairments did not prevent him from engaging in substantial activities of daily living:
[plaintiff] cares for his family, performs household chores, drives a car, visits friends,
plays games such as dominoes and cards with his friends, and plays catch with his son.
- 24 -
[Plaintiff] also pays bills, passed an oral drivers’ license exam, and testified that he could
follow the instructions necessary for making a cake.”). Furthermore, physician’s opinions
may be discounted or given little weight if primarily based on subjective complaints and
not objective medical evidence. McDade, 720 F.3d at 999.
The ALJ Evaluation of Plaintiff’s Subjective Complaints of Paint
The question before the ALJ was not whether plaintiff experienced pain at all, but
rather the severity of her pain. Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001).
Plaintiff argues that the ALJ may not disregard subjective complaints of pain solely
because they are not fully corroborated by the objective medical evidence. (ECF No. 19
at 65) (citing Nelson v. Heckler, 712 F.2d 246, 248 (8th Cir. 1983)). But the ALJ did not
make his determination solely on objective evidence (or the lack thereof). (ECF No. 12, at
17-25).
While he did note that the objective medical evidence would not support
plaintiff’s claims about the degree of her pain, he also considered the report of plaintiff’s
brother, plaintiff’s daily activities, her work history, her treatment and use of medication,
and her ability to file multiple social security applications.
In particular, he found
plaintiff’s daily activities and sporadic treatment and use of medication discredited her
testimony. Furthermore, the ALJ expressly considered the condition of chronic low back
pain in limiting the claimant’s RFC to only light work and requiring an alternating
sit/stand option. (Id. at 19). Accordingly, the ALJ in this case relied on substantial
evidence in concluding that while plaintiff may experience chronic low back pain, it was
not so severe as to be disabling, whether alone or in combination with plaintiff’s other
symptoms.
The ALJ wrote at length about the divergence between plaintiff’s asserted
limitations and what she reports being able to accomplish daily.
While noting that
plaintiff may not be able to engage in activities she could in the past, or might require
more time to complete activities than she once did, “she is more active than would be
expected if all of her allegations were credible.” (Id. at 23). Plaintiff reported that she has
- 25 -
difficulty lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, talking,
climbing stairs, seeing, completing tasks, concentrating, understanding, following
instructions, and using her hands. (Id. at 18, 694–704.) However, she testified at the
multiple ALJ hearings that she could attend to her own hygiene without another’s
assistance, perform light household chores, go shopping, and handle her own finances.
(Id. at 23, 694–704, 967–71.) Her brother also stated in a third party function report that
she had difficulties in the aforementioned areas, but then stated plaintiff prepared her own
simple meals, did light housework, including vacuuming and dishes, and went shopping
with him. (Id. at 23, 708–15.)
Dr. Burchett opined that plaintiff could, by herself, shop, travel, ambulate, walk on
uneven surfaces, use public transportation, climb a few steps, perform personal hygiene
matters, prepare simple meals, and lift, sort, or use paper files, but then attempted to limit
plaintiff’s RFC to a disabling one. (Id. at 21, 1115–18.) The ALJ was proper in giving
little weight to Dr. Burchett’s assessed RFC. See McDade, 720 F.3d at 999. These
activities belie plaintiff’s assertions of disabling conditions.
See, e.g., Id. at 998;
Medhaug, 578 F.3d at 817. The ALJ concluded that Dr. Burchett’s limitation on “never
stooping, kneeling, crouching, or crawling and the limitation to occasional reaching is not
consistent with the claimant’s admitted activities of daily living including cleaning,
shopping, and doing laundry.” (ECF No. 12 at 21.) The ALJ also found that limitation to
be inconsistent “with the fact that the claimant has never alleged any difficult[y] dressing
or caring for her personal hygiene, as noted by Dr. Burchett.” Id.
The ALJ in this case also considered the fact that plaintiff engaged in some work
activity after her alleged onset date. (ECF No. 12 at 24.) The ability of a claimant to
work previously while suffering from the same condition she now asserts as disabling may
be used by the ALJ to evaluate the claimant’s veracity. See Worden v. Colvin, No. 4:14
CV 1361 NCC, 2015 WL 4920779, at *9 (E.D. Mo. Aug. 18, 2015) (citing Dixon v.
Sullivan, 905 F.2d 237, 238 (8th Cir. 1990)). The ALJ in this case noted that plaintiff
worked as a short order cook, dishwasher, and kitchen helper at multiple dining
- 26 -
establishments, even if not at substantial gainful activity levels, and that this demonstrates
plaintiff’s pain was not as severe as she alleges. (ECF No. 12 at 24.)
Regarding treatment and medication, the use of predominately over-the-counter
medications to treat pain can be used to assess complaints of disabling pain as not
credible. Clevenger v. Soc. Sec. Admin., 567 F.3d 971, 976 (8th Cir. 2009). Although
plaintiff alleged that she took pain medications daily, they are largely over-the-counter.
(600 mg of ibuprofen a day, 2000mg of acetaminophen a day, topical applications of
Lidoderm) (ECF No. 12 at 728, 745, 1143.)
In plaintiff’s favor, on the other hand, the record includes her receiving epidural
steroid injections in her lower back for pain management as well as prescriptions for
Mobic and Skelaxin. (Id. at 1143, 1189-206.) She alleges she was unable to obtain
treatment and pay for medication due to lack of insurance. (Id. at 1154, 55, 59.) “While
these limitations, if accepted as credible, might have supported a disability finding, we
will not substitute our opinions for that of the ALJ, who is in a better position to assess a
claimant's credibility.” Johnson v. Chater, 87 F.3d 1015, 1018 (8th Cir. 1996).
A reasonable mind would find the record adequate to support the conclusion that
plaintiff may experience some pain but is not disabled under the Social Security Act.
Plaintiff reported that the steroid injections eliminated 70% of her pain. (ECF No. 12 at
1200.) The ALJ may consider whether pain can be controlled with treatment. Kisling v.
Chater, 105 F.3d 1255, 1257 (8th Cir. 1997). “Impairments that are controllable or
amenable to treatment do not support a finding of disability.” Id. The ALJ specifically
noted that narcotic pain treatments were not regularly prescribed or followed. (ECF No.
12 at 24). Additionally, at the same time plaintiff alleges she was unable to afford this
treatment, she was able to keep up drug, smoking and alcohol habits, purchasing at least a
pack of cigarettes a day (Id. at 798, 803, 911, 1037, 1066, 1093, 1103-5, 1116, 1139). The
fact that Plaintiff chose not to use those funds on treatment is an inconsistency that weighs
against her credibility. See Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999) (finding
the claim that plaintiff could not afford medication inconsistent with the fact that he did
- 27 -
not choose to forego smoking three packs of cigarettes a day to help finance pain
medication).
Further, as the ALJ noted, the record does not indicate that claimant was ever
refused treatment or medication for any reason. While the record suggests that plaintiff
sought assistance from Medicaid, the evidence as a whole supports the ALJ’s conclusion
that plaintiff’s complaints of disabling pain were not credible. The ALJ considered the
entire record and determined that plaintiff was experiencing pain, but that it was not so
severe as to be disabling.
The evidence in the record, particularly the multiple
descriptions of plaintiff’s daily activities, substantially supports this conclusion, in that a
reasonable mind would find it adequate to support the conclusion that plaintiff is not
disabled under the Social Security Act.
VI.
CONCLUSION
For the reasons set forth above, the final decision of the defendant Commissioner
of Social Security is affirmed. An appropriate Judgment Order is issued herewith.
S/ David D. Noce
f
UNITED STATES MAGISTRATE JUDGE
Signed on September 7, 2016.
- 28 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?