Maybearry v. Social Security Administration
REPORT AND RECOMMENDATIONS - IT IS HEREBY RECOMMENDED that the decision of the Commissioner be reversed and that this cause be remanded to the Commissioner for further proceedings. The parties are advised that any written objections tothis Report and Recommendation shall be filed not later than January 5, 2009. Failure to timely file objections may result in waiver of the right to appeal questions of fact. Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990). Signed by Mag Judge Frederick R Buckles on 12/23/08. (KJF, )
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION LINDA MAYBEARRY, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) )
4:07CV1873 DJS (FRB)
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE This cause is on appeal for review of an adverse ruling by the Social Security Administration. All pretrial matters were
referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) for appropriate disposition. I. Procedural History On June 5, 2005, plaintiff Linda Maybearry filed an application for Supplemental Security Income (SSI) pursuant to Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq., in which she claimed that she had been disabled since birth, October 17, 1960. (Tr. 45-48.) On initial consideration, the
Social Security Administration denied plaintiff's application for benefits. (Tr. 18, 32-37.) On September 20, 2006, a hearing was (Tr. 259-306.)
held before an Administrative Law Judge (ALJ).
Plaintiff testified and was represented by counsel. On January 26, 2007, the ALJ issued a decision denying plaintiff's claim for benefits. (Tr. 6-17.) On September 6, 2007, the Appeals Council -1-
denied plaintiff's request for review of the ALJ's decision. 2-5.)
The ALJ's determination of January 26, 2007, thus stands as 42 U.S.C. § 405(g).
the final decision of the Commissioner. II.
Evidence Before the ALJ
At the hearing on September 20, 2006, plaintiff testified in response to questions posed by the ALJ and counsel. At the time of the hearing, plaintiff was forty-five years of age. pounds. (Tr. 262.) Plaintiff weighs approximately 300
Plaintiff left high school while in the tenth Plaintiff is married but has for one year. (Tr. 263.)
grade and never obtained her GED. been separated from her husband
Plaintiff has two children, twenty-one and twenty-six years of age. (Tr. 273-74.) 274.) Plaintiff lives alone in a one-story house. (Tr.
Plaintiff receives Medicaid and food stamps. Plaintiff testified that she did not
engage in any fifteen years.
Plaintiff testified that she last worked on an assembly line at a plastics company in 1994 for two or three days. Plaintiff
testified that she quit the job because her deformed right arm prevented her from performing the work that was required. 264-65.) Plaintiff testified that her right arm and hand have been deformed since birth. Plaintiff testified that her right arm is (Tr.
permanently angled outward at the elbow and that she is unable to straighten her arm. Plaintiff also testified that she has no thumb (Tr. 265-66.) Plaintiff
or little finger on her right hand. -2-
testified that she has very little strength in the right arm and could possibly lift five pounds. (Tr. 266-67.) Plaintiff
testified that she has difficulty grabbing things because she is unable to bend all of the remaining fingers of her right hand. (Tr. 267-68.) Plaintiff testified that she also suffers a
deformity of the left hand in that her left thumb is shortened and she has limited opposition of the thumb. (Tr. 268-70.) Plaintiff
also testified to limited movement of the remaining fingers of the left hand. (Tr. 270-71.) Plaintiff testified that the strength in
her left hand is not very good because of diagnosed carpal tunnel syndrome. (Tr. 271.) Plaintiff testified that she could possibly Plaintiff testified that the
lift ten pounds with her left hand.
limitation with her strength and grip in both hands has interfered with her ability to obtain jobs. (Tr. 272-73.)
Plaintiff testified that she was involved in a motor vehicle accident in 2002 which resulted in injuries to her right knee, back, neck, and shoulder. Plaintiff testified that she
underwent arthroscopic surgery on her right knee because it was giving out on her and causing severe pain. (Tr. 275.) Plaintiff (Tr. 276.)
testified that the surgery did not help her condition.
Plaintiff testified that she also experiences pain in her left knee and that her physician recently advised her that she has severe arthritis in both knees. (Tr. 276-77.) Plaintiff testified that (Tr. 276.) Plaintiff
she was given medication for the arthritis.
testified that she has difficulty managing stairs because of the condition of her knees. (Tr. 298.) -3-
Plaintiff testified that she underwent therapy for her back injury and that surgery had been recommended. Plaintiff
testified that she did not pursue the recommendation further inasmuch as she could not undergo a necessary myelogram because she was allergic to the dye. Plaintiff testified that she last (Tr. 287-88.)
received treatment for her back one year prior.
Plaintiff testified that low back pain limits her to standing for ten to fifteen minutes and to sitting for half an hour. Plaintiff
testified that nothing helps to relieve her back pain, including medication. (Tr. 296.)
Plaintiff testified that she experiences a constant, aching pain in her neck and left shoulder and that surgery had been recommended. (Tr. 288-91.) Plaintiff testified that the pain (Tr. 292.) Plaintiff testified that
radiates down into the arm.
she has been prescribed Lidoderm patches for the pain, but has obtained no relief therefrom. Plaintiff testified that her
physician does not want to prescribe narcotics because of their addictive nature. (Tr. 288-91.) Plaintiff testified that having
her arm in a downward position aggravates her shoulder pain and that she therefore often props her arm on a pillow. (Tr. 291-92.)
Plaintiff testified that she sometimes experiences numbness and tingling in the left hand which causes instability in holding things and causes her to sometimes drop things. (Tr. 293-94.)
Plaintiff also testified that she is occasionally awakened by the sensation. (Tr. 294.) Plaintiff testified that she suffers from sleep apnea but -4-
did not consider it to be a significant contributor to her sleeping difficulties. Plaintiff testified that she has been prescribed a
CPAP machine but does not use it because she is claustrophobic and feels as though she is suffocating when she uses the machine. 283-85.) Plaintiff testified that she experiences shortness of breath and is unable to walk beyond half a block because of the condition. (Tr. 295-96.) Plaintiff testified that the condition (Tr.
was not related to her sleep apnea and that a cardiologist told her that it was a cardiac problem. (Tr. 295.)
Plaintiff testified that she had gained approximately twenty-five pounds within the previous year due to depression. (Tr. 277-78.) Plaintiff testified that her general physician had
been treating her depression with antidepressant medication but that she began treatment with a psychiatrist in December 2005 because she was able to obtain insurance and because she had been having daily crying spells and her concentration was lacking. (Tr. 278-79.) Plaintiff testified that she visits her psychiatrist
every three to four weeks and has been diagnosed with depression and bipolar disorder. (Tr. 279-80.) Plaintiff testified that the
bipolar disorder was the primary obstacle in plaintiff being able to work inasmuch as the condition involves her not wanting to be around people. (Tr. 302.) she filed for
Plaintiff testified that at the time
benefits, that is, June 2005, she was experiencing crying spells daily, was eating more and was not sleeping. -5(Tr. 280.) Plaintiff
testified that she was taking Paxil at the time. testified Symbyax. that she currently takes Lamictal,
Plaintiff testified that she feels no
significant improvement with the additional medication, but that her crying spells have decreased to twice a week. Plaintiff (Tr.
testified that such spells sometimes last for an entire day. 282.)
Plaintiff testified that she does not socialize due to her Plaintiff testified that she has no self-esteem and (Tr. 285.) Plaintiff testified that
that she feels like a loner.
she has no friends, has no hobbies, does not go to church, and visits only with her children and grandchildren twice a week. (Tr. 286-87.) Plaintiff testified that she also experiences problems with concentration and sleeping on account of her depression. (Tr. 282-83.) Plaintiff testified that she awakens in the middle of the night and is usually awake for two or three hours. (Tr. 284.)
Plaintiff testified that this causes her to be sleepy throughout the day and that she takes two or three naps during the day. 284-85.) (Tr.
Plaintiff testified that she sleeps for two or three
hours with each nap and does not stay awake for a straight eighthour period. (Tr. 297-98.)
Plaintiff testified that she used marijuana and cocaine in the past when dealing with her depression. Plaintiff testified
that she wanted to commit suicide at the time and such substances made her forget things. uses these substances. Plaintiff testified that she no longer (Tr. 304-05.) -6-
Plaintiff testified that her doctors have recommended that she lose weight and that she exercise. Plaintiff testified (Tr. 303-04.)
that she tried walking but was unable to do so.
As to her daily activities, plaintiff testified that she gets up in the morning at 9:00 a.m., takes her medicine and gets dressed for the day. Plaintiff testified that she then tries to
watch some television and is usually ready to go back to sleep within a couple of hours. Plaintiff testified that she sleeps
upright for twenty to thirty minutes and then lies down and sleeps for another couple of hours. Plaintiff testified that she watches
more television for two or three hours upon waking and then falls asleep again for another two or three hours. Plaintiff testified (Tr. 299-
that she goes to bed at night around 8:30 or 9:00 p.m. 302.) house.
Plaintiff testified that her children take care of the (Tr. 298.) Plaintiff testified that she does not clean the
house, sweep or vacuum, and will sometimes wash the dishes if she is sitting down. cooking. Plaintiff testified that she does very little Plaintiff testified that her daughter does
the laundry and goes grocery shopping for her. Plaintiff testified that she will sometimes go to the store if she needs only a couple things. (Tr. 298.) Plaintiff testified that she can carry grocery (Tr. 299.) Medical Records
bags if they are light.
On July 24, 2002, x-rays were taken of plaintiff's left hand and lumbar spine after plaintiff was involved in a motor vehicle accident. The x-ray of the hand was negative. -7The x-ray
of the lumbar spine showed a straightening lordotic curve with minimal degenerative osteophyte formation. of fracture or dislocation. (Tr. 239.) There was no evidence
On September 26, 2002, plaintiff visited Dr. Mitchell Mirbaha for complaints of right knee pain. Plaintiff reported that she had experienced such pain since the accident in July 2002. Plaintiff reported that she had taken medication and had Dr.
participated in physical therapy with no real improvement.
Mirbaha noted plaintiff to have good range of motion about the knee. Dr. Mirbaha observed plaintiff to be somewhat obese. X-rays
taken of both knees that same date showed marked osteoarthritic changes in both knees with osteophyte formation. Plaintiff Dr.
reported having no pain in the left knee.
(Tr. 248, 251.)
Mirbaha questioned whether plaintiff had a torn meniscus and an MRI was ordered. (Tr. 248.)
An MRI of the right knee taken on September 30, 2002, showed small joint effusion and an eight-mm osteochondral defect in the mid-patella. (Tr. 249, 250.)
On October 3, 2002, plaintiff reported to Dr. Mirbaha that the pain in her right knee persisted. about the knee. arthroscopic Tenderness was noted
Dr. Mirbaha recommended that plaintiff undergo on the knee for further evaluation and
treatment of the pain.
(Tr. 250, 251.)
Plaintiff underwent arthroscopic surgery on the right knee on October 24, 2002, at which time chondroplasty of the patella was performed and a large osteophyte was removed. -8Shaving
of the partially torn anterior horn of the medial meniscus was also done. (Tr. 231-33, 250.) Plaintiff was diagnosed with mild (Tr. 235.) Demerol1 and
chronic synovitis of the right knee. Vistaril2 were prescribed for pain.
Plaintiff returned to Dr. Mirbaha on November 11, 2002, for follow up and reported that her right knee was better except that she was currently experiencing weakness. Physical therapy was ordered for plaintiff. Plaintiff also complained of pain in the
left wrist and reported that she had had such pain since the accident in July 2002. An x-ray of the left wrist taken that same
date showed a possibility of a rotary subluxation of the scaphoid bone onto the lunate. 244.) An MRI of the left wrist taken December 16, 2002, yielded negative results. (Tr. 244.) A follow up MRI study was recommended. (Tr.
On December 30, 2002, plaintiff returned to Dr. Mirbaha and complained of having pain at the tip of the patella on the right knee. Dr. Mirbaha noted there to be no crepidation, no The tender spot
effusion, and plaintiff had good range of motion. was injected with Depo-Medrol.3
Plaintiff was started
Demerol is used to relieve moderate to severe pain. Medline Plus (last reviewed Aug. 1, 2007). Vistaril is used to relieve the itching caused by allergies and to control the nausea and vomiting caused by various conditions. Medline Plus (last reviewed Aug. 1, 2007). Depo-Medrol is inflammation. Medline
a corticosteroid injected to relieve Plus (last reviewed Aug. 1, 2007) -9-
Plaintiff also reported that her wrist did not
bother her as much as before, but that she currently had some pain about the left elbow and shoulder. Dr. Mirbaha opined that,
because plaintiff was a heavy person, the accident probably caused the musculature in plaintiff's left upper extremity to be stressed. Plaintiff was instructed to return in two weeks for follow up. (Tr. 242.) On January 13, 2003, plaintiff did not appear for a scheduled appointment with Dr. Mirbaha. (Tr. 244.)
Plaintiff returned to Dr. Mirbaha on January 16, 2003, and complained of persistent right knee pain. Physical examination of the knee was unremarkable. X-rays showed osteoarthritic changes and lateral tilting of the patella. Plaintiff also complained of Dr. Mirbaha
pain in the low back, left upper thigh and left wrist. prescribed Vioxx5 for plaintiff. (Tr. 244.)
On February 27, 2003, plaintiff reported to Dr. Mirbaha that her right knee bothered her intermittently and that physical therapy had helped the condition. Plaintiff also continued to
complain of low back pain, neck pain, and numbness and tingling in the fingers of the left hand. Dr. Mirhaba noted EMG studies
. Celebrex is used to relieve pain, tenderness, swelling, and stiffness caused by osteoarthritis, rheumatoid arthritis and ankylosing spondylitis. Medline Plus (last reviewed Aug. 1, 2007). Vioxx is indicated for the relief of signs and symptoms of osteoarthritis and for the management of acute pain. Physicians' Desk Reference 2049-50 (55th ed. 2001). - 10 5 4
performed January 17 to show mild median neuropathy.
explained to plaintiff that she did not need much further treatment for her knee. Plaintiff was instructed to continue with her (Tr. 242.) treatment and Dr. Mirbaha instructed
exercises and with physical therapy. discharged plaintiff from further
plaintiff to return as needed if she had any problems with her knee. (Tr. 241.) On June 17, 2003, plaintiff visited Neurologist Faisal J. Albanna for her complaints of neck pain and low back pain. 207-13.) (Tr.
Plaintiff reported her pain to be at a level seven on a (Tr. 213.) Plaintiff reported that she had It was
scale of one to ten.
experienced such pain since the accident in July 2002.
noted that plaintiff was a driver of one of the vehicles involved in the accident. Plaintiff reported her neck pain to radiate to Plaintiff denied Plaintiff
both arms, greater on the left than the right.
any numbness, weakness or tingling into the arms.
reported her low back pain to radiate into the buttocks and posterior thighs. Plaintiff reported the pain to worsen with Plaintiff reported that
prolonged sitting, standing and driving.
previous physical therapy and cervical traction did not help her condition. Plaintiff reported that her current medication,
Percocet,6 seemed to help.
Physical examination showed plaintiff Tenderness was
to have full range of motion of the cervical spine.
Percocet contains oxycodone and acetaminophen and is used to relieve moderate to severe pain. Medline Plus (last reviewed Aug. 1, 2007). - 11 -
noted about the spinous processes of the lower cervical spine.
significant paraspinal muscle spasming or spasming of the trapezius muscles was noted. lumbosacral spine Plaintiff had full range of motion of the with pain upon left lateral bending. No
tenderness or spasming was noted about the spine. Plaintiff's gait and station were noted to be full and steady, and plaintiff could heel and toe walk without difficulty. negative. Straight leg raising was
Muscle strength was noted to be 5/5 in the upper and
lower extremities; tone was within normal limits; and sensation was intact. MRI's obtained in February 2003 were reviewed, and Dr.
Albanna noted current x-rays to show cervical spurs at C5-C6, C6-C7 and a mild degree of disc degeneration of the lumbosacral spine at L4-L5, L5-S1. Dr. Albanna diagnosed plaintiff with cervicalgia;
cervical spondylosis at C5-C6 and C6-C7; lumbago; disc degeneration at L4-L5 and L5-S1; and spinal stenosis on the left at L4-L5 and foraminal stenosis on the left at L4-L5. (Tr. 207.) Dr. Albanna
recommended that plaintiff participate in physical therapy as well as have epidural steroid injections administered. It was
determined that plaintiff would undergo such treatment prior to any further analysis. (Tr. 208.)
On June 26, 2003, plaintiff underwent evaluation for physical therapy. Plaintiff complained of constant pain in her
neck and between the shoulder blades with some radiation into the head and right arm. Plaintiff also complained of low back pain Plaintiff reported her pain to be
with radiation into both legs.
greater in the morning and to be aggravated by walking, standing, - 12 -
and sitting without support.
Plaintiff reported that sitting with Plaintiff participated in physical tolerated the treatment well.
support improved her symptoms. therapy that same date and
Plaintiff's prognosis was noted to be good with continued physical therapy. Plaintiff was instructed to participate in physical (Tr. 206.)
therapy three times a week for four weeks.
Between June 26 and July 24, 2003, plaintiff participated in physical therapy on ten occasions. conclusion of the prescribed therapy, (Tr. 200-05.) it was Upon the that
plaintiff had progressed with treatment for her low back pain, but that she had increased neck pain which worsened with treatment. Plaintiff was instructed on a home exercise program and was
discharged from therapy.
On July 28, 2003, plaintiff visited Dr. Alexander Beyzer of Albanna Neurosurgical Consultants and complained of residual pain in her neck and shoulders. It was noted that plaintiff took
Percocet and ibuprofen for the pain and that her pain was at a level eight on a scale of one to ten. Physical examination showed
some tenderness over the cervical area and the upper trapezius muscles. Plaintiff had full range of motion. was unremarkable. Plaintiff The remainder of the was diagnosed with
cervicalgia and myofascial pain.
Dr. Beyzer recommended that
plaintiff discontinue ibuprofen and take Vioxx instead. Dr. Beyzer also recommended chiropractic manipulation and a trial of a TENS unit. weeks. Plaintiff was instructed to return for follow up in several Dr. Beyzer opined that plaintiff may need a trigger point - 13 -
(Tr. 199.) Plaintiff returned to Dr. Beyzer on August 11, 2003, and
was administered a trigger point injection of Depo-Medrol to the left upper trapezius muscle. Plaintiff was instructed to apply ice to the area as well as an interferential muscle stimulator. (Tr. 198.)
Plaintiff was to return in four weeks for follow up.
An adenosine cardiolite stress test performed on October 2, 2003, in response to plaintiff's complaints of shortness of breath and chest pain yielded essentially normal results, with somewhat increased left ventricular volume noted. (Tr. 187-88.)
Plaintiff visited Dr. Tshiswaka B. Kayembe on October 16, 2003, for evaluation of plaintiff's complaints of shortness of breath. Plaintiff complained of palpitations and shortness of Plaintiff was noted to have elevated to
breath when walking uphill. blood pressure. include Effexor.7
Plaintiff's current medication was noted Physical examination was
unremarkable. Dr. Kayembe Plaintiff (Tr.
Plaintiff's weight was noted to be 310 pounds.
determined for plaintiff to undergo an echocardiogram.
was prescribed Hydrochlorothiazide (HCTZ)8 and Triamterene.9
Effexor is used to treat depression. Medline Plus (last revised Feb. 1, 2008). Hydrochlorothiazide is used to treat high blood pressure and fluid retention caused by various conditions, including heart disease. Medline Plus (last reviewed Aug. 1, 2007). Triamterene is used to treat edema caused by various conditions, including liver and heart disease. Medline Plus (last reviewed Aug. 1, 2007). - 14 9 8
185-86.) An echocardiogram performed on October 30, 2003, yielded normal results. (Tr. 184.)
Plaintiff returned to Dr. Kayembe on January 8, 2004, who noted plaintiff's only complaint to be of heartburn. experienced no chest pain. unchanged. Plaintiff
Physical examination was noted to be
Plaintiff was diagnosed with heartburn, controlled obesity, and hyperlipidemia. Plaintiff was
instructed to continue with over-the-counter H2 blocker or proton pump inhibitor and to follow up in four months. (Tr. 183.)
Plaintiff returned to Dr. Kayembe on May 26, 2004, who noted plaintiff to have done well since her last visit and to have no particular complaint. Plaintiff was noted to weigh 305 pounds.
Dr. Kayembe noted plaintiff's current medications to include Paxil10 and Triamterene. Physical examination was unremarkable. Plaintiff was diagnosed with atypical chest pain and obesity, and was
instructed to continue with the same medical regimen and to follow up in six months. (Tr. 181-82.)
Plaintiff visited Dr. Denise Buck on August 12, 2004, and complained of shortness of breath, nocturia and orthopnea. Buck determined to order pulmonary function tests. (Tr. 171.) Dr.
An x-ray taken of plaintiff's chest on August 17, 2004, in response to plaintiff's complaints of shortness of breath was negative.
Paxil is used to treat depression, panic disorder and social anxiety disorder. Medline Plus (last revised Feb. 1, 2008) . - 15 -
On August 24, 2004, plaintiff visited Dr. Beyzer and complained of neck pain. Plaintiff reported that the pain had been
aggravated a week prior with pain radiating to her shoulder. Plaintiff described the pain as moderate, at a level five or six on a scale of one to ten. Plaintiff also complained of low back pain Dr.
and reported that standing and walking aggravate the pain.
Beyzer noted that physical therapy provided no significant relief in the past. Plaintiff's current medications were noted to include Flexeril,11 Darvocet12 and Paxil without significant improvement. Physical examination showed range of motion of the cervical spine to be slightly limited to the left. spine showed no tenderness. the lumbosacral spine. Palpation of the lumbosacral
Plaintiff had full range of motion of Straight leg raising was negative.
Neurological examination was unremarkable.
Dr. Beyzer noted MRI's
to show spur at the cervical spine at C5-C6, C6-C7 and degenerative disc at the lumbar spine at L4-L5, L5-S1. with lumbago secondary to Plaintiff was diagnosed disc L4-L5, L5-S1;
cervicalgia; and cervical spondylosis.
Noting plaintiff not to
have responded to physical therapy or to interferential muscle stimulation, Dr. Beyzer recommended a trial of cervical epidural steroid
Flexeril is a muscle relaxant used with rest, physical therapy and other measures to relax muscles and relieve pain and discomfort caused by strains, sprains and other muscle injuries. Medline Plus (last reviewed Aug. 1, 2007). Darvocet is used to relieve mild to moderate pain. Medline Plus (last reviewed Aug. 1, 2007). - 16 12
Plaintiff was instructed to return in three to four weeks. 197.)
On September 23, 2004, plaintiff reported to Dr. Buck that her shortness of breath was about the same. Dr. Buck
discussed air trapping with plaintiff and prescribed Advair.13 (Tr. 169.) On November 4, 2004, plaintiff reported to Dr. Buck that Advair seemed to help initially with her shortness of breath but that she was starting to experience it again. Plaintiff reported
that such shortness of breath usually occurred with activity and rarely at rest. (Tr. 168.) On November 4, 2004, plaintiff visited Dr. Kayembe who noted plaintiff not to experience chest pain or tightness. Plaintiff was referred to a pulmonary specialist.
Plaintiff complained of some lower back pain which she reported to occur usually when lying down in bed. to significantly improve Dr. Kayembe noted Advair not condition. Dr. Kayembe
described plaintiff as having atypical chest pain and shortness of breath. Dr. Kayembe noted plaintiff's hypertension to be very well controlled. Plaintiff was instructed to maintain her medical
regimen and weight reduction program and to return in six months for follow up. (Tr. 180.)
Plaintiff visited Dr. Shyam S. Ivaturi on December 1,
Advair is used to prevent wheezing, shortness of breath and breathing difficulties caused by asthma and chronic obstructive pulmonary disease. Medline Plus (last revised Nov. 1, 2008) . - 17 -
plaintiff's complaints of shortness of breath.
Ivaturi noted plaintiff's history of depression and hypertension. Plaintiff reported that she had been experiencing shortness of breath during the previous six to eight months, both with exertion and at rest. Plaintiff reported that Albuterol14 and Advair
provided little or no relief. Plaintiff reported sometimes feeling tired upon waking and increased daytime sleepiness. Dr. Ivaturi noted plaintiff's current medications (Tr. 174.) to include
Celebrex, Paxil, HCTZ, and Advair. pains or palpitations.
Plaintiff denied any chest
Dr. Ivaturi noted plaintiff to have a
congenital deformity of the right arm since birth with the right hand having only three fingers. joint pain. Plaintiff reported occasional
Physical examination showed plaintiff to weigh 312 Respiratory examination
pounds and to appear "distantly obese." was unremarkable. (Tr. 175.)
Dr. Ivaturi noted recent pulmonary Plaintiff
function tests to be suggestive of mild air trapping.
was diagnosed with shortness of breath; daytime hypersomnolence, without obstructive sleep apnea or sleep related disorder; and obesity. Dr. Ivaturi recommended that plaintiff undergo additional pulmonary function tests to rule out hyperactive airways, such as asthma; undergo a sleep study; and lose weight. Plaintiff was
instructed to continue on her current medications and to return in Albuterol is used to prevent and treat wheezing, difficulty breathing and chest tightness caused by lung diseases such as asthma and chronic obstructive pulmonary disease. Medline Plus (last revised Mar. 1, 2007). - 18 14
eight weeks for follow up.
(Tr. 176.) admitted to St. (Tr. 216-30.) Plaintiff
On December 7, 2004, plaintiff was Anthony's Medical Center for a sleep study.
Plaintiff was noted to have a history of depression.
currently complained of excessive daytime sleepiness and tiredness. Plaintiff was noted to be overweight. plaintiff experienced sleep apnea. the study, plaintiff was It was suspected that Upon conclusion of mild to moderate
(Tr. 216.) with
diagnosed (Tr. 217.)
obstructive sleep apnea.
It was recommended that
plaintiff use nasal air or nasal pillows with a CPAP machine to avoid feelings of claustrophobia with the mask. It was also
recommended that plaintiff lose weight, exercise and continue treatment for depression. (Tr. 218.)
Plaintiff visited Dr. Beyzer on March 15, 2005, and complained of persistent neck pain and of numbness and tingling in the left arm. Plaintiff reported most of her pain to be on the
left side. Plaintiff reported that Celebrex, Darvocet and Vicodin15 did not help the pain. Plaintiff reported taking Aleve which Physical examination showed
likewise did not help the pain.
tenderness upon palpation at the cervical paraspinals on the left. Plaintiff had full range of motion. the left. Spurling sign was positive on Dr. Beyzer An x-ray of
Neurological examination was unremarkable.
noted there to be a deformity over the right forearm.
Vicodin is a combination of hydrocodone and acetaminophen used to relieve moderate to severe pain. Medline Plus (last revised Oct. 1, 2008). - 19 -
the cervical spine taken that same date showed cervicalgia and cervical spondylosis and plaintiff was diagnosed with same. Dr.
Beyzer recommended that plaintiff undergo additional diagnostic testing. Percocet was prescribed. (Tr. 196.)
An MRI of the cervical spine obtained March 21, 2005, showed C3-C4 and C4-C5 left paracentral disc protrusions with C5-C6 and C6-C7 diffuse posterior disc bulge and spurring; ventral cord flattening at the C5-C6 level with mild central canal stenosis; and mild foraminal stenosis at C3-C4, C4-C5, C5-C6, and C6-C7 due to uncovertebral and facet spurring. (Tr. 194.)
On March 29, 2005, plaintiff underwent a nerve conduction study which showed moderate carpal tunnel syndrome on the left side. No evidence suggestive of cervical radiculopathy on the left side was noted. (Tr. 192.)
Plaintiff returned to Dr. Albanna on March 29, 2005, and complained of neck pain, headaches, left upper extremity pain, and numbness and tingling into the left upper extremity to the middle finger. down. Plaintiff reported the condition to worsen with lying
It was noted that previous treatment modalities provided no Plaintiff reported that she felt quite limited by her
symptoms. Physical examination showed decreased range of motion of the cervical spine in all directions. examination was unremarkable. The remainder of the
Dr. Albanna reviewed the results of
the recent diagnostic tests and diagnosed plaintiff with cervical spondylosis at C5-C6 and C6-C7. Dr. Albanna recommended that
plaintiff undergo a cervical myelogram in possible preparation for - 20 -
allergy to dye, Dr. Albanna determined to
provide plaintiff with Medrol Dosepak as a prophylactic prior to the myelogram. (Tr. 190.)
Plaintiff returned to Dr. Kayembe on June 30, 2005, who noted plaintiff to have done well over the past several months with no chest pain. Plaintiff weighed 312 pounds. Plaintiff was noted
to have a history of depression.
Dr. Kayembe diagnosed plaintiff
with resolved chest pain, controlled hypertension, obesity, and depression. Plaintiff was instructed to continue on her current (Tr. 179.)
regimen and to return in six months.
On June 20, 2005, plaintiff visited Dr. Buck and reported that she no longer experienced shortness of breath. Plaintiff
complained of pain in her neck and back and reported that she needed a myelogram. did not help. well as Paxil Plaintiff reported that Darvocet and Vicodin
Plaintiff also reported that Paxil did not work as CR. Upon physical examination, plaintiff was
diagnosed with dermatitis, stress incontinence, depression, and neck pain. Plaintiff was instructed to change back to Paxil CR Percocet was prescribed. Plaintiff was (Tr. 167.)
when it became available.
instructed to return in two months for follow up.
On July 11, 2005, Dr. Ivaturi reported to disability determinations that plaintiff had been diagnosed with shortness of breath and mild obstructive sleep apnea. On July 12, 2005, Dr. Buck (Tr. 173.) reported to disability
determinations that plaintiff had been diagnosed with hypertension, - 21 -
depression, obstructive sleep apnea, birth defect of the right arm, degenerative disc disease, and left carpal tunnel. (Tr. 166.)
On August 23, 2005, plaintiff underwent a consultative psychiatric examination for disability determinations. 64.) (Tr. 160-
Plaintiff complained to Dr. Georgia Jones of depression, disc, hypertension, heel spurs, shortness of breath,
arthritis, missing two fingers on the right hand, and right arm unable to be straightened. Dr. Jones noted plaintiff's current
medications to include Percocet, Trazodone,16 HCTZ, and Paxil. Plaintiff reported that the last time she saw a psychiatrist regularly was in 2000 when her husband lost his job and she had no insurance. Plaintiff reported that she currently had difficulty
falling and staying asleep. (Tr. 160.) Plaintiff reported feeling sad, blue, hopeless, helpless, and worthless. having poor memory, decreased focus and Plaintiff reported concentration, and
Plaintiff reported that she only enjoyed seeing her Plaintiff reported that she and
grandchildren whom she saw daily.
her husband recently separated. Plaintiff reported having fleeting thoughts of suicide but had no intent or plan. Plaintiff reported
that she last worked for three days in 1994 and left because she could not handle it. Plaintiff reported that she believed her low Plaintiff reported
self esteem prevented her from being employed.
that she last used marijuana six months prior and cocaine one year prior.
Plaintiff reported having withdrawal symptoms
Trazodone is used to treat depression. Medline Plus (last revised Aug. 1, 2007). - 22 -
but never had treatment for or legal problems on account of her drug use. Mental status examination was unremarkable. Plaintiff's affect was noted to be appropriately reactive. Sensorium
examination was unremarkable.
functioning, appearance and ability to care for personal needs were noted to be intact. license. Dr. Jones noted plaintiff to have a driver's
Plaintiff's concentration, persistence and pace were Upon conclusion, Dr.
noted to be good throughout the examination.
Jones diagnosed plaintiff with dysthymia with superimposed episodes of major affective disorder and depression. Dr. Jones assigned
plaintiff a Global Assessment of Functioning (GAF) score of 70. Dr. Jones determined plaintiff's prognosis from a psychiatric standpoint to be good. (Tr. 163.)
On August 23, 2005, plaintiff underwent a consultative physical examination for disability determinations. (Tr. 153-59.)
Plaintiff complained to Dr. Clodualdo Gamez of neck pain, carpal tunnel syndrome, back and leg pain, and depression. to her neck pain, plaintiff reported that With respect had been
recommended but that she was not given any assurance that the surgery would definitely help her pain. Plaintiff reported that
the pain radiated to her arms and was getting progressively worse. Plaintiff reported that she could not lift heavy objects with her left upper extremity due to pain and was disabled with her right upper extremity due to a congenital anomaly in development.
Plaintiff reported her carpal tunnel syndrome to have worsened over the previous two months. (Tr. 153.) - 23 Plaintiff reported that no
treatment, such as a wrist brace or surgery, had been recommended for the condition and that pain medication had not been helpful. (Tr. 153-54.) legs. Plaintiff reported her back pain to radiate to both
Plaintiff reported that Percocet had provided some relief
but that her physician recently referred her to a pain specialist and stopped prescribing the medication due to the potential for dependence. As to her depression, plaintiff reported that she had
suffered from the condition since childhood and took medication, but that the medication was not of much help. Dr. Gamez noted
plaintiff's current medications to include Triamterine, Paxil CR and Percocet. Plaintiff reported a "distant history of illicit
drug use at a much earlier age" and that she had "kicked" the habit. Plaintiff Dr. was Gamez observed and plaintiff tearful to be morbidly the obese.
Physical examination showed plaintiff to stand five feet, six inches tall and to weigh 311 pounds. (Tr. 154.) Examination of
the back showed no tenderness or muscle spasm. noted to be slightly diminished to
Distal pulses were in all four
A congenital anomaly of the right arm was noted with
a lateral curvature of the humerus bone distally and an absence of thumb and fifth finger on the right hand. Dr. Gamez reported Range of Elbow
plaintiff's other extremities to be essentially normal.
motion was noted to be diminished about the right shoulder. joints were normal and wrist examination was normal.
Dr. Gamez was unable to detect any signs or symptoms of carpal tunnel. (Tr. 156.) Range of motion about the knees was
- 24 -
extremities was normal, although plaintiff had diminished ability to make a fist and grip with her right hand. Range of motion of
the hips was slightly diminished, as was range of motion of the cervical and lumbar spine. Straight leg raising was normal.
Plaintiff was observed to ambulate without difficulty, to be able to get on and off the examination table without difficulty, and to be able to dress herself without assistance. Neurological
examination was normal. In a Mental
(Tr. 155.) Residual Functional Capacity Assessment
completed September 22, 2005, by Medical Consultant J. McGee with disability determinations, it was opined that, in the domain of Understanding and Memory, plaintiff was not significantly limited in her ability to remember locations and work-like procedures, or to understand and remember very short and simple instructions. It
was further opined that plaintiff was moderately limited in her ability to understand and remember detailed instructions. In the
domain of Sustained Concentration and Persistence, it was opined that plaintiff was not significantly limited in her ability to carry out very short and simple instructions; to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; to sustain an ordinary work routine without special supervision; to work in coordination with or
proximity to others without being distracted by them; or to make simple work-related decisions. It was further opined that
plaintiff was moderately limited in her ability to carry out - 25 -
detailed instructions; to maintain attention and concentration for extended periods; and to complete a normal workday and workweek without interruptions from psychologically-based symptoms and to perform at a consistent pace without an unreasonably number and length of rest periods. In the domains of Social Interaction and
Adaptation, it was opined that plaintiff was not significantly limited in any regard. (Tr. 87-90.)
On September 27, 2005, plaintiff reported to Dr. Buck that her depression was getting worse. Plaintiff also reported
that she was worried about weight gain and was in constant pain with no good days. Plaintiff was diagnosed with chronic pain,
major depression and stress incontinence. Plaintiff was prescribed Detrol17 and was instructed to follow up in six weeks. (Tr. 144.)
Plaintiff returned to Dr. Buck on December 28, 2005. Dr. Buck noted plaintiff's current medications to be Paxil CR and Restoril.18 Plaintiff was diagnosed with insomnia and depression (Tr. 143.)
and was given Ambien.
On March 8, 2006, plaintiff complained to Dr. Buck of having experienced headaches, blurred vision, and tenderness at the base of her scalp at the back of her head. Dr. Buck noted
plaintiff to have a history of hypertension which was stable.
Detrol is used to relieve urinary difficulties. Medline Plus (last reviewed Aug. 1, 2007). Restoril is used on a short-term basis to treat insomnia. Medline Plus (last revised Oct. 1, 2008). - 26 18
Plaintiff was prescribed Naprosyn19 for pain and a CT scan of the head was ordered. (Tr. 142.)
A CT scan of the head obtained March 9, 2006, in response to plaintiff's complaints of headaches showed previous mastoid surgery on the left. 147.) On March 29, 2006, plaintiff returned to Dr. Beyzer and complained of persistent, moderate neck pain radiating to her left arm and shoulder. Dr. Beyzer noted plaintiff's last visit to have Plaintiff reported no numbness, tingling or The CT scan was otherwise unremarkable. (Tr.
been in March 2005.
weakness. Plaintiff also complained of back pain but reported that it was not as severe as her shoulder pain. It was noted that
plaintiff was taking Vicodin for pain. Physical examination showed some tenderness of the left upper trapezius and limited range of motion to the left. Spurling's test was positive on the left. The
remainder of the examination was unremarkable. diagnosed with cervical spondylosis and was
Plaintiff was given Lidoderm
patches.20 Dr. Beyzer recommended an additional MRI of the cervical spine with neurosurgical consultation thereafter. (Tr. 152.)
An MRI of the cervical spine obtained on April 5, 2006,
Naprosyn is used to relieve pain, tenderness, swelling, and stiffness caused by osteoarthritis, rheumatoid arthritis and ankylosing spondylitis. Medline Plus (last reviewed Aug. 1, 2007) . Lidoderm patches are used to relieve the pain of postherpetic neuralgia (the burning, stabbing pains or aches that may last for months or years after a shingles infection). Medline Plus (last reviewed May 1, 2008). - 27 20
showed central disc bulge/protrusion at C3-4 with flattening of the ventral cord and mild central canal stenosis. Lateralizing
osteophyte C5-6 and C6-7 with resulting foraminal stenosis and probable mild central canal stenosis was also noted. (Tr. 151A.)
An x-ray of the chest taken June 5, 2006, in response to plaintiff's complaints of chest pain showed no evidence of acute cardiopulmonary process. (Tr. 146.) Myocardial perfusion imaging
showed reversible apical perfusion defect consistent with exerciseinduced ischemia. (Tr. 145.)
Cardiac catheterization laboratory tests performed on June 8, 2006, showed non-obstructive coronary artery disease. (Tr. 139-40.) On June 15, 2006, plaintiff visited Dr. Barbara O'Brien who observed plaintiff to move all of her extremities well and to exhibit full range of motion of the extremities. (Tr. 133.)
Plaintiff returned to Dr. Beyzer on June 21, 2006, and complained of pain in her neck and left shoulder that was sometimes moderate to severe. any medication and Dr. Beyzer noted plaintiff not to be taking that she "has been off work." Physical
examination showed range of motion to be limited. was negative. No tenderness was noted
Spurling's sign upon palpation.
Neurological examination was normal.
Upon review of the recent
MRI, Dr. Beyzer diagnosed plaintiff with cervicalgia, cervical spondylosis, and cervical radiculitis at C5-C6 and C6-C7. It was
recommended that plaintiff take Naprosyn and use Lidoderm patches, and that she receive epidural steroid injections and chiropractic - 28 -
On August 25, 2006, plaintiff visited Psychiatrist Shazia Malik. Plaintiff reported that she was not doing well and was Plaintiff reported that she could not
having terrible difficulty. get "caught up." grandchildren.
Plaintiff reported that she worried about her Plaintiff reported that she felt down, had low Dr. Malik
energy and motivation, and liked to sleep a lot.
prescribed Wellbutrin,21 Lamictal22 and Symbyax23 for plaintiff. (Tr. 127.) On September 5, 2006, plaintiff complained to Dr. Mirbaha of having experienced severe bilateral knee pain for two days. Plaintiff reported the left knee to be more painful than the right. Dr. Mirbaha noted x-rays to show a marked degree of osteoarthritic changes in the knees, "but amazingly, the symptoms are minimal for the amount of osteoarthritis she has in the knees." Dr. Mirbaha
administered an injection of Cortisone to both knees and gave plaintiff a prescription for Indocin.24
Wellbutrin is used to treat depression. Medline Plus (last revised Aug. 1, 2007). Lamictal is used to increase the time between episodes of depression, mania and other abnormal moods in patients with bipolar (last revised June 1, 2008) disorder. Medline Plus . Symbyax is used to to treat depression, obsessive-compulsive disorder, some eating disorders, and panic attacks. Medline Plus (last revised Feb. 1, 2008). Indocin is used to relieve moderate to severe pain as well as tenderness, swelling, and stiffness caused by osteoarthritis, rheumatoid arthritis and ankylosing spondylitis. Medline Plus - 29 24 23 22
On September 12, 2006, plaintiff cancelled a scheduled appointment with Dr. Mirbaha. (Tr. 130.)
Plaintiff returned to Dr. Malik on October 6, 2006, and reported feeling down, lacking energy and of not wanting to do anything. Plaintiff reported feeling no different after having Plaintiff reported
taken Wellbutrin for one and a half months. that she "got fired from the job."
Plaintiff complained of
increased anxiety and reported that she felt hot, clammy, nervous, and claustrophobic at times. Dr. Malik instructed plaintiff to
take Cymbalta,25 Lamictal and Symbyax and to return in four weeks. (Tr. 125.) In an undated Physical Residual Functional Capacity
Assessment completed by Disability Examiner A. Cooke, it was opined that plaintiff could lift twenty pounds occasionally and ten pounds frequently, could stand and/or walk a total of about six hours in an eight-hour workday, could sit for a total of about six hours in an eight-hour workday, and had unlimited ability to push and/or pull. It was further opined that plaintiff could frequently
balance, stoop, kneel, and crouch; could occasionally crawl; and could never climb ladders, ropes or scaffolds. It was further
opined that plaintiff had no manipulative, visual, communicative, or environmental limitations. (Tr. 91-98.)
(last reviewed Aug. 1, 2007). Cymbalta is used to treat depression and generalized anxiety disorder. Medline Plus (last revised Sept. 1, 2008). - 30 25
IV. The ALJ found
The ALJ's Decision that plaintiff had not engaged in
substantial gainful activity at any time relevant to the decision. The ALJ found plaintiff's degenerative disorders of the spine, osteoarthritis of the knees, carpal tunnel syndrome, and nonobstructive coronary artery disease to be severe impairments but that such impairments, either singly or in combination, did not meet or medically equal any impairment listed in Appendix 1, Subpart P, Regulations No. 4. The ALJ found plaintiff's
allegations of total inability to work not to be fully credible. The ALJ determined plaintiff to have the residual functional
capacity (RFC) to lift and/or carry ten pounds, both frequently and occasionally; sit for about six hours out of an eight-hour workday; stand and/or walk for about two hours in an eight-hour workday; and was unlimited in her ability to push and/or pull. The ALJ
determined such RFC to be consistent with the ability to perform the full range of sedentary work. Considering plaintiff's age,
limited education, RFC, and no past relevant work experience, the ALJ determined that Medical-Vocational Rule 201.24 directed a finding of not disabled. Finding plaintiff able to make a
vocational adjustment to work which exists in significant number in the national economy, the ALJ determined plaintiff not to be under a disability at any time through the date of the decision. 15-17.) V. Discussion (Tr.
To be eligible for Supplemental Security Income under the - 31 -
Social Security Act, plaintiff must prove that she is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Secretary of Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992). The Social Security Act defines disability as the
"inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(A). An individual will be
declared disabled "only if [her] physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous and work work but cannot, engage considering in any [her] age, of
substantial gainful work which exists in the national economy." 42 U.S.C. § 1382c(a)(3)(B). To determine whether a claimant is disabled, the
Commissioner engages in a five-step evaluation process.
C.F.R. § 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The Commissioner begins by deciding whether the claimant is engaged in substantial gainful activity. disability benefits are denied. If the claimant is working, Next, the Commissioner decides
whether the claimant has a "severe" impairment or combination of impairments, meaning that which significantly limits her ability to do basic work activities. If the claimant's impairment(s) is not
severe, then she is not disabled. The Commissioner then determines whether claimant's impairment(s) meets or is equal to one of the - 32 -
impairments listed in 20 C.F.R., Subpart P, Appendix 1. claimant's impairment(s) is equivalent to one of the
impairments, she is conclusively disabled. At the fourth step, the Commissioner establishes whether the claimant can perform her past relevant work. If so, the claimant is not disabled. Finally, the
Commissioner evaluates various factors to determine whether the claimant is capable of performing any other work in the economy. If not, the claimant is declared disabled and becomes entitled to disability benefits. The decision of the Commissioner must be affirmed if it is supported by substantial evidence in the record as a whole. 42
U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002). Substantial
evidence is less than a preponderance but enough that a reasonable person would find it adequate to support the conclusion. v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). To determine whether the Commissioner's decision is Johnson
supported by substantial evidence, the Court must review the entire administrative record and consider: 1. 2. 3. 4. The credibility findings made by the ALJ. The plaintiff's vocational factors. The medical evidence from treating and consulting physicians. The plaintiff's subjective complaints relating to exertional and non-exertional activities and impairments. Any corroboration by third parties of the plaintiff's impairments. - 33 -
The testimony of vocational experts when required which is based upon a proper hypothetical question which sets forth the claimant's impairment.
Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (quoting Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989)). The Court must also consider any evidence which fairly detracts from the Commissioner's decision. 1047, 1050 (8th Cir. 1999). Warburton v. Apfel, 188 F.3d
However, even though two inconsistent
conclusions may be drawn from the evidence, the Commissioner's findings may still be supported by substantial evidence. Pearsall, 274 F.3d at 1217 (citing Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000)). A Commissioner's decision may not be reversed merely
because substantial evidence also exists that would support a contrary outcome. Jones ex rel. Morris v. Barnhart, 315 F.3d 974,
977 (8th Cir. 2003). Plaintiff claims that the ALJ's decision is not supported by substantial evidence on the record as a whole. Specifically,
plaintiff contends that the ALJ erred in failing to consider the deformity of plaintiff's right arm and hand and in failing to find such deformity to be a severe impairment. Plaintiff also claims
that the ALJ erred in his RFC determination by failing to consider plaintiff's condition of impairments plaintiff's in combination, right arm and and her especially the
impairments of obesity and depression.
Plaintiff also contends
that the ALJ erred in his adverse credibility determination. Finally, plaintiff argues that the ALJ erred by relying on the - 34 -
Medical-Vocational disabled inasmuch
impairments that should be considered by a vocational expert. A. Credibility Determination Before determining a claimant's RFC, the ALJ must first evaluate the claimant's credibility. Wagner v. Astrue, 499 F.3d
842, 851 (8th Cir. 2007); Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005). In determining the credibility of a claimant's
subjective complaints, the ALJ must consider all evidence relating to the complaints, including the claimant's prior work record and third party observations as to the claimant's daily activities; the duration, frequency and intensity of the symptoms; any
precipitating and aggravating factors; the dosage, effectiveness and side effects of medication; and any functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984) (subsequent history omitted). Although the ALJ may not discount subjective
complaints on the sole basis of personal observation, he may disbelieve a claimant's complaints if there are inconsistencies in the evidence as a whole. Id.
Where, as here, a plaintiff contends on judicial review that the ALJ failed to properly consider her subjective complaints, "the duty of the court is to ascertain whether the ALJ considered all of the evidence relevant to the plaintiff's complaints . . . under the Polaski standards and whether the evidence so contradicts the plaintiff's subjective complaints that the ALJ could discount his or her testimony as not credible." - 35 Masterson v. Barnhart, 363
F.3d 731, 738-39 (8th Cir. 2004).
It is not enough that the record
merely contain inconsistencies. Instead, the ALJ must specifically demonstrate in his decision that he considered all of the evidence. Id. at 738; see also Cline v. Sullivan, 939 F.2d 560, 565 (8th Cir. 1991). Where an ALJ explicitly considers the Polaski factors but the
then discredits a claimant's complaints for good reason, decision should be upheld.
Hogan v. Apfel, 239 F.3d 958, 962 (8th
Cir. 2001); see also Casey v. Astrue, 503 F.3d 687, 696 (8th Cir. 2007). The determination of a claimant's credibility is for the Tellez, 403 F.3d at 957;
Commissioner, and not the Court, to make. Pearsall, 274 F.3d at 1218. Invoking Polaski, the ALJ
determined to be inconsistencies in the record to support his conclusion that plaintiff's subjective complaints of pain were not credible. be said Upon review of the record as a whole, however, it cannot that the ALJ's adverse credibility determination is
supported by substantial evidence. In finding plaintiff's subjective complaints not to be credible, the ALJ first found it significant that plaintiff
reported to the various examining physicians that her pain level was "only moderate in intensity." (Tr. 14.) The ALJ determined
that "[s]uch a level of discomfort would not normally support a finding for disability." however, shows the ALJ in (Id.) to the A review of the ALJ's decision, failed to acknowledge that among the other
treatment modalities, plaintiff had been prescribed significant - 36 -
narcotic medication for the relief of moderate to severe pain as well as a muscle relaxant used to relieve pain and discomfort. See Bowman v. Barnhart, 310 F.3d 1080, 1083 (8th Cir. 2002) (ALJ erred in credibility determination by finding claimant suffered only mild to moderate pain when record showed medication was prescribed for moderate to moderately severe pain). There is no evidence in the
record demonstrating that such medication was effective in treating plaintiff's pain and, indeed, the treatment notes continually report the ineffectiveness report to her of plaintiff's that medication. she continued The to
experience moderate pain despite taking narcotic pain medication prescribed for moderate to severe pain does not serve to discredit plaintiff's complaints of pain. The ALJ also found that plaintiff's treatment with only conservative modalities was inconsistent with disabling pain and, further, that the record "fail[ed] to evidence the claimant as being a surgical candidate relative to any [of] her physical impairments." (Tr. 14.) The ALJ stated that, instead, the primary recommendation reduction. in treating plaintiff was exercise and weight
Contrary to the ALJ's finding, the record shows
that surgery had indeed been considered for plaintiff's cervical impairment and recommendations were made to prepare for possible surgery. Although plaintiff's allergy to preparation materials and her uncertainty as to the success of such proposed procedure resulted in surgery having not occurred, the ALJ's statement that the record revealed no evidence of plaintiff being a surgical - 37 -
candidate is inaccurate.
In addition, the record shows plaintiff
to have continually been prescribed strong narcotic pain medication and to have received epidural steroid injections for her pain with only limited relief. To state that the recommended treatment for
plaintiff's condition consisted primarily of exercise and weight reduction skepticism is contrary to the record. The ALJ's unfounded is an
insufficient basis upon which to find plaintiff's complaints not credible, especially where no medical report suggests that See
plaintiff had not been pursuing a valid course of treatment.
Bowman, 310 F.3d at 1084 (quoting Tate v. Apfel, 167 F.3d 1191, 1197 (8th Cir. 1999)). The ALJ also determined that plaintiff's daily activities and poor work history detracted from her credibility.
Specifically, the ALJ found that plaintiff's ability to care for her grandchildren, perform certain household chores, drive, prepare simple meals, shop in stores, and manage money was inconsistent with a physical or mental incapacity to perform work. under the Social or Security Act, however, forms does of not Disability mean and total social
The ability to shop, clean, do laundry, and visit with
others does not constitute substantial evidence that a claimant can engage in substantial gainful activity. See Harris v. Secretary of the Dep't of Health & Human Servs., 959 F.2d 723, 726 (8th Cir. 1992); see also Burnside v. Apfel, 223 F.3d 840, 845 (8th Cir. 2000) (mowing lawn, tinkering on old cars, woodworking, feeding - 38 -
children's pets, occasional cooking, driving, running errands, and grocery shopping does not demonstrate claimant able to return to work); Ross v. Apfel, 218 F.3d 844, 849 (8th Cir. 2000) (ability to perform sporadic light activities does not mean that the claimant is able to perform full time competitive work). But see Wagner,
499 F.3d at 852 (fixing meals, doing housework, grocery shopping, and visiting friends considered to be "extensive" daily
"A claimant need not be bedridden to qualify for
disability benefits." Burnside, 223 F.3d at 845. Nevertheless, to the extent the ALJ considered plaintiff's daily activities and poor work record to constitute inconsistencies in the record, such inconsistencies do not rise to the level of substantial evidence on the record as a whole to support the ALJ's decision to discount plaintiff's testimony. (8th Cir. 1998). See Burress v. Apfel, 141 F.3d 875, 881
This is especially true here where many of the
alleged inconsistencies upon which the ALJ relied to discredit plaintiff's subjective complaints are not supported by, and indeed in some instances are contrary to, the record. Such discrepancies
undermine the ALJ's ultimate conclusion that plaintiff's symptoms are less severe than she claims. 366, 368-69 (8th Cir. 1996). Finally, the undersigned notes that, with one exception relating to a November 2004 examination by Dr. Kayembe regarding plaintiff's shortness of breath, the ALJ's opinion is devoid of any discussion relating to any treatment sought by or rendered to plaintiff prior to August 2005, despite extensive evidence in the - 39 Baumgarten v. Chater, 75 F.3d
impairments, diagnostic testing relating thereto, and treatment rendered therefor occurring at or near the time plaintiff applied for benefits in June 2005. exist during the relevant Evidence relating to conditions that time period must be considered in
determining whether a claimant is disabled. Apfel, 222 F.3d 496, 502 (8th Cir. 2000).
Cf. Cunningham v.
The ALJ here provides no
explanation as to why multiple medical records dated prior to August 2005 which documented plaintiff's musculoskeletal impairment and related treatment were not considered in his determination of plaintiff's claim. Although an ALJ is not required to explain all
the evidence of record, Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000), he nevertheless cannot merely "pick and [choose] only Taylor o/b/o
evidence in the record buttressing his conclusion."
McKinnies v. Barnhart, 333 F. Supp. 2d 846, 856 (E.D. Mo. 2004), and cases cited therein. The ALJ may have considered and for valid reasons rejected the . . . evidence proffered . . . ; but as he did not address these matters, we are unable to determine whether any such rejection is based on substantial evidence. Initial determinations of fact and credibility are for the ALJ, and must be set out in the decision; we cannot speculate whether or why an ALJ rejected certain evidence. Accordingly, remand is necessary to fill this void in the record. Jones v. Chater, 65 F.3d 102, 104 (8th Cir. 1995) (citation omitted). In light of the above, it cannot be said that the ALJ demonstrated in his written decision that he considered all of the - 40 -
evidence relevant to plaintiff's complaints or that the evidence he considered so contradicted plaintiff's subjective complaints that plaintiff's Masterson, testimony 363 F.3d could at be discounted As such, as the not credible. adverse
credibility determination is not supported by substantial evidence on the record as a whole. Because the ALJ's decision fails to
demonstrate that he considered all of the evidence before him under the standards set out in Polaski, this cause should be remanded to the Commissioner for an appropriate analysis of plaintiff's
credibility in the manner required by and for the reasons discussed in Polaski. B. RFC Determination Where an ALJ errs in his determination to discredit a claimant's subjective complaints of pain, the resulting RFC
assessment is called into question inasmuch as it does not include all of the claimant's limitat
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