Weiter v. Social Security Administration

Filing 23

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the decision of the Commissioner is reversed, and this cause is remanded for further consideration consistent with this opinion. Signed by Magistrate Judge Frederick R. Buckles on 7/15/2010. (NCL)

Weiter v. Social Security Administration

Doc. 23

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION AMANDA L. WEITER, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) ) )

No. 4:09CV00702 FRB

MEMORANDUM AND ORDER This matter is on appeal for review of an adverse ruling by the Social Security Administration. All matters are pending

before the undersigned United States Magistrate Judge, with consent of the parties, pursuant to 28 U.S.C. § 636(c). I. Procedural Background On September 20, 2006, plaintiff protectively filed her applications for Disability Insurance Benefits ("DIB") pursuant to Title II of the Social Security Act ("Act"), and for Supplemental Security Income ("SSI"), pursuant to Title XVI of the Act.

(Administrative Transcript ("Tr.") 90-97). alleged disability due to fibromyalgia,1

Therein, plaintiff attention deficit

"Fibromyalgia, a chronic condition recognized by the American College of Rheumatology (ACR), is inflammation of the fibrous and connective tissue, causing long-term but variable levels of muscle and joint pain, stiffness, and fatigue." Brosnahan v. Barnhart, 336 F.3d 671, 672 n. 1 (8th Cir. 2003). "Diagnosis is usually made after eliminating other conditions," and is
1

-1-

Dockets.Justia.com

disorder, dysthymia,2 and asthma.

(Tr. 116).

Her claims were

initially denied, and she filed a request for a hearing before an administrative law judge ("ALJ"). (Tr. 57-58; 67).

On August 22, 2008, a hearing was held before an ALJ in Creve Coeur, Missouri. (Tr. 17-50). On September 23, 2008, the

ALJ issued a decision finding that plaintiff was not under a "disability" as such is defined in the Act, and determined that plaintiff could return to her past work as a cashier and as a server at parties. (Tr. 7-16).

Plaintiff filed a request for review of the hearing decision with defendant Agency's Appeals Council, (Tr. 51), and on March 31, 2009, the Appeals Council declined to review the ALJ's decision. (Tr. 1). The ALJ's decision thus stands as the 42 U.S.C. § 405(g).

Commissioner's final decision.

II.

Evidence Before The ALJ A. Medical Records The record indicates that plaintiff saw William L.

Johnson, M.D., on May 12, 1999, for evaluation of allergies. 209-14). increasing

(Tr.

Plaintiff complained of allergy symptoms that had been with each passing year, and reported having taken

diagnosed based upon subjective symptoms.

Id.

2 Dysthymia is a mood disorder characterized by mild depression or irritable mood, and is often combined with other symptoms, such as eating and sleeping disorders, and fatigue. http://www.merriam-webster.com/medlineplus/dysthymia

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Intal,3 Albuterol,4 Allegra,5 Claritin,6 and Flonase.7

(Tr. 209).

Examination revealed slight wheezes and mildly obstructed pulmonary function. (Tr. 210). Allergy skin testing was positive for most (Tr. 210, 208).

of the pollens, as well as dust mites and dander.

Plaintiff was diagnosed with mild persistent asthma and allergic rhinitis, and advised to stop smoking. (Tr. 210). Plaintiff saw

Dr. Johnson on several occasions for continued evaluation and treatment of asthma and allergic rhinitis from February 21, 2001 through June 2, 2006. (Tr. 192-207). On May 31, 2005, plaintiff

saw Dr. Johnson, who noted that plaintiff's last visit had been on September 10, 2003. (Tr. 196). Dr. Johnson noted that plaintiff (Id.) On February

was "not very compliant" with her medication.

21, 2001, Dr. Johnson quoted plaintiff as saying that she "didn't pay much attention to the asthma," and noted that she had run out

3 Intal, or Cromolyn, is used to prevent the wheezing, shortness of breath, and troubled breathing caused by asthma. It also is used to prevent breathing difficulties (bronchospasm) during exercise. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a601042.html

Albuterol is a bronchodilator used to prevent and treat wheezing, difficulty breathing and chest tightness caused by lung diseases such as asthma and chronic obstructive pulmonary disease (COPD; a group of diseases that affect the lungs and airways). http://www.nlm.nih.gov/medlineplus/druginfo/medmaster/a607004.html
4 5 Allegra, or Fexofenadine, is used to relieve the symptoms of seasonal allergies. http://www.nlm.nih.gov/medlineplus/druginfo/medmaster/a697035.html

Claritin, or Loratadine, is used to temporarily relieve allergy symptoms. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a697038.html
6

Flonase, or Fluticasone, is a nasal spray used to relieve the symptoms of seasonal and perennial allergies. http://www.nlm.nih.gov/medlineplus/druginfo/medmaster/a695002.html
7

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of Pulmocort one month ago, but was never very compliant with her medication. (Tr. 205).

The record indicates that plaintiff saw Jay Liss, M.D., a psychiatrist, on April 6, 2005.8 (Tr. 269). Plaintiff reported (Id.) She

working at Bed, Bath, and Beyond, and at Bar Italia. reported having moved in with her boyfriend. plaintiff (Id). was prescribed Adderall,9 Effexor,10 (Id.) and

It appears Trazodone.11

The record indicates that plaintiff visited HealthSouth for physical therapy on 3 occasions from April 21, 2005 through June 9, 2005. (Tr. 183-189). On April 21, 2005, plaintiff

complained of pain along the left side of her neck and occasionally down her left arm, and underwent physical therapy. (Tr. 187). On

May 19, 2005, plaintiff returned and reported feeling about 50 to 75 percent better overall with less neck and arm pain, and stated that she was working with less discomfort also. (Tr. 185).

All of Dr. Liss's treatment notes are handwritten, and consist of little more than brief, sometimes illegible phrases regarding plaintiff's reported symptoms. See (Tr. 269-74; 350; 387-96). Furthermore, while the administrative transcript includes Dr. Liss's records dated from 2005 through 2008, the record indicates, and the Commissioner does not dispute, that Dr. Liss had treated plaintiff since 1996. See (Tr. 397).
8

Adderall, a combination of dextroamphetamine and amphetamine, is used as part of a treatment program to control symptoms of attention deficit hyperactivity disorder ("ADHD"). http://www.nlm.nih.gov/medlineplus/druginfo/meds/a601234.html
9

Effexor, or Venlafaxine, is used to treat depression. http://www.nlm.nih.gov/medlineplus/druginfo/medmaster/a694020.html
10

Trazodone is used to treat depression. http://www.nlm.nih.gov/medlineplus/druginfo/medmaster/a681038.html
11

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Plaintiff stated, "[t]herapy really seems to be helping."

(Id.)

Plaintiff returned to Dr. Liss on May 18, 2005 and reported having visited St. Anthony's Emergency Room. (Tr. 270).

There is also an apparent notation that plaintiff "was drunk and took pill," and that her boyfriend took her to the hospital. 270). When plaintiff presented for physical therapy on June 9, 2005, plaintiff reported that she felt 80 to 90 percent better overall "with minimal to no pain into [left] neck and arm any more." (Tr. 183). Plaintiff stated "I am able to do more at work I do not get the spasms and tightness like The physical therapist noted good overall (Tr.

and with less pain. initially." (Id.)

improvement in flexibility, range of motion, and improving strength of plaintiff's upper extremities and scapular region. (Id.) It

was noted that it was plaintiff's last authorized visit, and that she would continue with the "home program." (Id.)

On August 2, 2005, plaintiff saw Nurse Practitioner Marva J. Williams with complaints of neck and left shoulder pain. (Tr. 180). Nurse Williams noted that plaintiff had been "in and (Id.) Nurse

out of Physical Therapy for the last six months."

Williams noted that strengthening exercises and physical therapy "had really relieved and controlled her discomfort." (Id.) Nurse

Williams also noted that plaintiff was discharged from Physical Therapy at the end of June, and "decided to take a break" in July. (Id.) The record indicates that, -5towards the end of July,

plaintiff was playing a game of washers, and called on August 1, 2005 with complaints of severe neck and left shoulder pain. 180). (Tr.

Upon examination, plaintiff was in no acute distress, and

had full range of motion of her head and neck and shoulders, with some shoulder tenderness. (Id.) Nurse Williams noted that

plaintiff understood that strengthening exercises were important for her to remain pain free, and advised plaintiff to "get back on her exercise program." (Id.) (Tr.

Plaintiff returned to Dr. Liss on August 5, 2005. 271).

It is noted that plaintiff was asked about medication

interaction, and that plaintiff worked at Bed, Bath and Beyond. (Id.) There is a notation that appears to say that plaintiff

needed to be more assertive, and that she was filling out financial forms for school. (Id.) (Id.) Dr. Liss prescribed Adderall and Effexor.

Plaintiff saw Dr. Liss again on November 14, 2005 and stated

that she was fixing up her house, and that she and her boyfriend had been together for five years. continued. (Id.) Plaintiff saw Nurse Williams on December 7, 2005, with complaints of nasal congestion and pressure. (Tr. 181). Upon (Tr. 272). Her medications were

examination, Nurse Williams noted that plaintiff was in no acute distress, but had slight swelling of her nasal membranes. Plaintiff was prescribed an antibiotic, a (Id.) nasal

decongestant/expectorant, take Ibuprofen as needed.

and saline nasal spray, and advised to (Id.) -6-

On January 19, 2006, plaintiff visited the emergency room at St. Anthony's Medical Center with complaints of neck spasm. (Tr. 176). Plaintiff rated her pain as "moderate;" stated she had

had this problem for three years; and that this episode had been "constant." (Tr. 176-77). It is noted that, according to

plaintiff and her family, plaintiff's pain had been a problem "for some time." (Tr. 177). Plaintiff was examined by C. Bosche, M.D.,

who noted that plaintiff was completely neurologically intact. (Id.) 178). On January 20, 2006, plaintiff saw Robert J. Backer, M.D., with complaints of neck spasms and pain that was "better today." (Tr. 228). Plaintiff indicated that she had had this X-ray of plaintiff's cervical spine was negative. (Tr.

problem for five years; that she was at work at the onset of her problem; and that standing too long and lifting were factors of her problem. (Tr. 229). Plaintiff reported taking Effexor,

Minocycline,12 Trazodone, Ibuprofen, Oxycodone,13 and Flexeril.14 (Id.) Range of motion was slow but full, and an MRI, performed at

St. John's Mercy Medical Center, revealed mild diffuse disk bulging

12 Minocycline is used to treat bacterial infections and acne. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682101.html 13

pain.

Oxycodone is an opiate analgesic used to relieve moderate to severe http://www.nlm.nih.gov/medlineplus/druginfo/medmaster/a682132.html

14 Flexeril, or Cyclobenzaprine, is a muscle relaxant used to relax muscles and relieve pain caused by strains, sprains, and other muscle injuries. http://www.nlm.nih.gov/medlineplus/druginfo/medmaster/a682514.html

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at C4-5, and mild left maxillary sinus disease. Plaintiff was diagnosed with myofascial pain.

(Tr. 232).

(Tr. 231).

On February 1, 2006, plaintiff saw Stephen Schmidt, M.D., of Western Anesthesiology Associates, Incorporated, Pain Management Services. (Tr. 233-37).15 Plaintiff denied arm pain, but

complained of moderate neck pain that had begun years ago due to muscle spasms, and described her pain as shooting, throbbing, aching and burning. (Tr. 233). Plaintiff reported having tried

physical therapy, chiropractic care, and cold and heat therapy, and stated that her symptoms improved significantly after taking a Medrol Dosepak,16 which she had not done before. (Id.) Plaintiff

stated that, prior to this, she had to leave work many times because of severe pain and great difficulty rotating her neck. (Id.) Plaintiff reported weight and appetite changes, disturbed

sleeping habits, sinusitis, headaches, depression, mood swings, and anxiety. (Tr. 234). Upon examination, plaintiff had full neck (Tr.

range of motion, and had a forward-flexed gait and stance. 235).

Plaintiff had increased pain with extension of the spine, (Id.) She

and improvement of the pain with flexion of the spine.

Dr. Schmidt's records appear at more than one place in the Administrative Transcript. The undersigned will refer only to the first occurrence.
15 16 Medrol, or Methylprednisolone, is a corticosteroid is used to relieve inflammation, and is used to treat certain forms of arthritis; skin, blood, kidney, eye, thyroid, and intestinal disorders (e.g., colitis); severe allergies; and asthma. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682795.html

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was tender over the lumbar facet joints, and had diffuse tenderness throughout the trapezius muscle into the cervical paraspinous musculature. (Id.) She had full range of motion of her upper and

lower extremities; she was alert and oriented; and she had a normal affect and appropriate judgment and memory ability. (Tr. 236).

Dr. Schmidt's assessment was myofascial pain syndrome, noting that plaintiff had non-radiating neck pain and a negative neurological examination. (Id.) Dr. Schmidt wrote that he was

unsure what was causing plaintiff's pain, and wrote that it could be primarily muscular; it could be facet joint abnormality; or it could be related to plaintiff's disc. (Id.) Dr. Schmidt

recommended conservative treatment and prescribed an oral antiinflammatory, Voltaren,17 and physical therapy, and stated that trigger point injections may be considered in the future. 236-37). Plaintiff returned to Dr. Schmidt on March 9, 2006 with complaints of neck and bilateral elbow pain that had worsened. (Tr. 238). Plaintiff stated that the medications she had been (Id.) Dr. (Tr.

given at the last office visit provided no relief.

Schmidt assessed neuralgia/neuritis, and wrote that he had no explanation for plaintiff's pain. (Tr. 239). Dr. Schmidt wrote

Voltaren, or Diclofenac, is used to relieve pain, tenderness, swelling, and stiffness caused by osteoarthritis (arthritis caused by a breakdown of the lining of the joints), rheumatoid arthritis (arthritis caused by swelling of the lining of the joints), and ankylosing spondylitis (arthritis that mainly affects the spine). http://www.nlm.nih.gov/medlineplus/druginfo/meds/a689002.html
17

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that

he

did

not

think

injections

would

help

plaintiff,

and

prescribed Neurontin,18 Elavil,19 and a Medrol Dosepak, and advised her to follow up in one month. plaintiff failed to (Id.) she Dr. Schmidt wrote that, if should be seen by a

improve,

rheumatologist.

(Id.)

Plaintiff returned to Dr. Schmidt on April 3, 2006 and reported that her symptoms were better, but that she still had variable back, neck, shoulder and elbow pain. (Tr. 240). Dr. (Tr.

Schmidt recommended that plaintiff see a rheumatologist. 241).

On May 3, 2006, plaintiff saw Stephen C. Ross, M.D., of Arthritis Consultants, Inc., with complaints of intermittent pain in her cervical spine over the last two to three years, which had progressed to involve widespread musculoskeletal pain. (Tr. 222).

Dr. Ross noted that plaintiff had improved somewhat with the use of Elavil and Neurontin, but had not been working over the last several months due to the pain. (Id.) Plaintiff reported taking

Neurontin, Zyrtec,20 Minocycline (for acne), Voltaren, Effexor, Adderall, and Elavil. (Id.) Upon examination, Dr. Ross noted that

Neurontin, or Gabapentin, is used to help control certain types of seizures in patients who have epilepsy. It is also used to relieve the pain of postherpetic neuralgia (PHN; the burning, stabbing pain or aches that may last for months or years after an attack of shingles). http://www.nlm.nih.gov/medlineplus/druginfo/meds/a694007.html
18 19 Elavil, or Amitriptyline, is used to treat symptoms of depression. http://www.nlm.nih.gov/medlineplus/druginfo/medmaster/a682388.html

Zyrtec, or Cetirizine, is used to treat the symptoms of seasonal allergies. http://www.nlm.nih.gov/medlineplus/druginfo/medmaster/a698026.html
20

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plaintiff was in no acute distress, rose from the examination table without difficulty, and ambulated normally. was unremarkable. (Tr. 222). (Id.) Examination

Plaintiff had full range of motion

of the cervical, thoracic, and lumbar spine, and her fist closure and grip strength was 100 percent. (Id.) She had multiple tender

points present over her trapezius muscles, occiput (the back of the head), scapula, gluteals, costochondra (the joining of a rib and cartilage), epicondyles (prominences on the ends of long bones serving for the attachment of joints and ligaments), and greater trochanters (rough prominences of the upper part of the femur serving for the attachment of muscles). (Id.) Dr. Ross's

impression was "[p]robable fibromyalgia syndrome with widespread musculoskeletal pain, sleep disturbance, and tender points." (Id.) He advised plaintiff to continue her current medications and her exercise program, and should also ask her dermatologist (Dr.

Bauschard) about stopping Minocycline, because Minocycline was sometimes associated with musculoskeletal symptomatology. 222-23). On May 4, 2006, plaintiff returned to Dr. Schmidt with the chief complaint of pain. (Tr. 244). She reported that the (Tr.

medications she had been given had caused headache and weight gain. (Id.) Dr. Schmidt noted that plaintiff had seen a rheumatologist,

who ordered tests but that the results had not yet been returned. (Id.) Examination was normal, and Dr. Schmidt's assessment was (Tr. 245). -11Dr. Schmidt recommended that

neuralgia/neuritis.

plaintiff wean off Neurontin to control the side effects.

(Id.)

On May 18, 2006, plaintiff saw Elizabeth A. Tracy, M.D. for a well-woman's examination. (Tr. 182). Plaintiff reported

that she was taking Zyrtec, Albuterol, Nasonex,21 Patanol,22 Effexor, Elavil, Clindamycin,23 and Adderall, and Elidel24 and Triamcinolone25 cream for Eczema. (Id). Plaintiff advised that she had recently

been diagnosed with fibromyalgia, and that she was undergoing physical therapy, but that her asthma was not bothersome. (Id.)

Upon examination, Dr. Tracy noted that plaintiff was pleasant, mildly anxious, and in no acute distress. (Id.)

Plaintiff returned to Dr. Ross on May 26, 2006, and it was noted that she was no longer taking Minocycline and was weaning off of Neurontin. (Tr. 225). It was noted that plaintiff was

Nasonex, or Mometasone nasal inhalation, is a topical steroid that is used for the treatment and prevention of nasal symptoms of seasonal and yearround allergies, including runny nose, sneezing, and itchy nose. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a602024.html
21

Patanol, or Olopatadine, is an antihistamine used to treat the symptoms of allergic pink eye. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a602025.html
22

Clindamycin is an antibiotic used to treat certain types of bacterial infections, including infections of the lungs, skin, blood, female reproductive organs, and internal organs. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682399.html
23

Elidel, or Pimecrolimus, is used to control the symptoms of eczema (atopic dermatitis; a skin disease that causes the skin to be dry and itchy and to sometimes develop red, scaly rashes). http://www.nlm.nih.gov/medlineplus/druginfo/meds/a603027.html
24

Triamcinolone is used to treat the itching, redness, dryness, crusting, scaling, inflammation, and discomfort of various skin conditions. It is also used to relieve the discomfort of mouth sores. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a601124.html
25

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doing physical therapy and stretching.

(Id.)

Plaintiff saw Dr.

Ross again on July 20, 2006 with complaints of knee pain; stated she could not do any tasks, and that her muscles gave out. 224). (Tr.

She had positive tender points, and 4 out of 5 strength (Id.)

secondary to pain.

Plaintiff returned to Dr. Schmidt on June 1, 2006, and reported worsening pain, stating that she had weaned off Neurontin, but that her pain had increased. normal. (Id.) (Tr. 246). Examination was (Tr. 247).

Dr. Schmidt assessed fibromyalgia.

Dr. Schmidt's records contain a June 9, 2006 notation that, on June 8, 2006, plaintiff asked to speak to Dr. Schmidt regarding her leave of absence and her limitations. (Tr. 364).

Dr. Schmidt's response was that he did not do disability ratings and limitations, and to make an appointment if she needed a specific statement regarding work. (Id.)

Also on June 9, 2006, plaintiff saw Dr. Liss, who noted that she had been diagnosed with fibromyalgia, and that she felt frustrated. (Tr. 273). Plaintiff reported persistent pain, and (Id.) Plaintiff's

stated that she had to reconsider her future.

Effexor dosage was increased, and she was continued on Adderall, Topamax26 and Elavil, and Clindamycin was given instead of

Topamax, or Topiramate, is used alone or with other medications to treat certain types of seizures in people who have epilepsy. Topiramate is also used to prevent migraine headaches, but not to relieve the pain of migraine headaches when they occur. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a697012.html
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Minocycline.

(Id.)

Dr. Schmidt's office records include a June 12, 2006 notation from Gregory H. Smith, D.O., of Dr. Schmidt's office. (Tr. 365). Plaintiff had called the office exchange over the

weekend to request Elavil because she had run out, and was unable to sleep. (Id.) A prescription for Elavil was called in to (Id). 2006, plaintiff saw Dr. Schmidt for

plaintiff's pharmacy. On June

14,

discussion regarding her fibromyalgia. of pain that had remained

(Tr. 366). and it

She complained was noted that

unchanged,

medications had provided 30% relief that was partial and temporary. (Id.) Plaintiff had increased her dosage of Effexor. (Id).

Examination was normal, and Dr. Schmidt noted that plaintiff had a normal affect, and was alert and oriented with appropriate judgment and memory. (Tr. 367). Dr. Schmidt noted that plaintiff had

questions related to her ability to work, and stated that she needed restrictions in order to continue working. (Tr. 366). Dr.

Schmidt's impression was myofascial pain syndrome, and he gave plaintiff "appropriate work restrictions" and advised her to

follow-up as needed.

(Tr. 367). 2006, plaintiff saw Dr. Schmidt with (Tr. (Id.)

On August 10,

complaints of pain in her leg, ankle, wrist, elbow, and head. 250). She stated that medication had provided no relief. (Tr. 250-51).

Examination was normal.

Dr. Schmidt assessed

fibromyalgia; advised plaintiff to continue to wean off Topamax -14-

because it was not helping; to take Elavil and a Medrol Dosepak; and to do acquatic therapy. (Tr. 251).

On August 14, 2006, Dr. Schmidt wrote that he had been treating plaintiff for a medical condition since February of 2006, and that her condition had existed for some time before that date. (Tr. 370). Dr. Schmidt wrote: The patient has been undergoing medical treatments on multiple fronts to try to alleviate her pain. [Plaintiff's] painful condition has definitely been a difficult situation and she has had a difficult time concentrating and completing her work both at school and on her job front. The patient is currently receiving treatment and will for the foreseeable future. (Id.) Dr. Schmidt's records indicate that, on August 21, 2006, plaintiff called his office and advised that her brother had committed suicide the preceding day. (Tr. 371). Plaintiff asked

for pain medication to help her stand and walk during the wake and funeral. (Id). On September 15, 2006, plaintiff saw Dr. Liss, and told him that her brother had died, and that she had been let go from her job at Bed, Bath and Beyond. (Tr. 274). It was noted that (Id.) It is indicated that a prescription was given.

plaintiff was seeing a grief counselor at her university, and that she had applied for Social Security. (Id.)

On September 29, 2006, Dr. Ross wrote that plaintiff was -15-

"able to perform with pain" work-related functions such as sitting, standing, walking, lifting, carrying, handling objects, hearing, speaking and traveling, (Tr. 221). despite any observed functional

limitations.

The record indicates that plaintiff underwent physical therapy on numerous occasions from January 20, 2006 through

September 1, 2006 at Rehabilitation Professionals, Inc. 313).

(Tr. 280-

Throughout these treatment notes, it is indicated that See (Id.) On August

plaintiff routinely complained of neck pain.

15, 2006, plaintiff reported that she was not sleeping well, and that she had started taking steroids, which were not helping. (Tr. 289). Plaintiff consistently reported that her symptoms decreased

following physical therapy, but also consistently reported symptoms of worsening pain on subsequent physical therapy visits. (Tr. 287314). For example, on May 24, 2006, she reported that she was very

sore and that a burning sensation had returned, potentially from weaning off Neurontin, (Tr. 300); on June 28, 2006, she reported that she was having a "bad day" and was experiencing an increase in knee pain, (Tr. 295); and on July 31, 2006, she reported that her

legs were feeling better, but that her neck was hurting worse. (Tr. 291). On October 23, 2006, A. Kresheck27 completed a Psychiatric Review Technique form, pertaining to the period from March 9, 2006

27

Neither A. Kresheck's first name nor credentials are indicated.

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to March 9, 2007. plaintiff.

(Tr. 322-333).

A. Kresheck did not examine

It was noted that plaintiff had reported difficulty

sleeping, and that she could do light chores "with limitations." (Id.) It is indicated that plaintiff had difficulty lifting,

squatting, bending, standing, reaching, walking, sitting, kneeling, using stairs, remembering, completing tasks, and concentrating. (Id.) It is indicated that plaintiff used a back brace, cane and (Id.) (Tr. 332). It is indicated that her depression had It is indicated that her statements and

wheelchair. worsened.

reported symptoms appeared to be partially credible, and partially consistent with the medical evidence in her file. It determinable was opined that of plaintiff had (Id.) the medically and

impairments

Attention

Deficit

Disorder

depression, and that she had "mild" restrictions in her activities of daily living and in maintaining social functioning, and

"moderate" difficulties in maintaining concentration, persistence, or pace. (Tr. 330). It is indicated that plaintiff had no (Id.)

repeated episodes of decompensation.

On that same date, A. Kresheck also completed a Mental Residual Functional Capacity Assessment, pertaining to the same time period. (Tr. 334-336). It was opined that plaintiff had

"moderate" limitations in her ability to understand, remember, and carry out detailed instructions; maintain attention and

concentration for extended periods; perform activities within a schedule and maintain regular attendance; and complete a normal -17-

workday

and

workweek

without

interruption

from

symptoms,

and

perform at a consistent pace without an unusual number of rest periods. (Tr. 334-35). It was opined that plaintiff was "not

significantly limited" in all other respects, and that she had no "marked" limitations. (Id.)

On October 24, 2006, a Physical Residual Functional Capacity Assessment form was completed and signed by "W. Maple." (Tr. 337-42).28 It is indicated that plaintiff's primary diagnosis (Tr.

was fibromyalgia, and her secondary diagnosis was asthma. 337).

It was opined that plaintiff could occasionally lift and/or

carry 20 pounds and frequently lift and/or carry 10; could stand and/or walk for a total of six hours in an eight-hour workday; and could sit, with normal breaks, for about six hours in an eight-hour day. (Tr. 338). It was opined that plaintiff could push and/or (Id.) No postural, manipulative, visual (Tr. 339-41). It

pull without limitation.

or environmental limitations were established.

was noted that plaintiff's asthma was controlled with medication, and that she did not require hospitalization. (Tr. 338). It was

noted that she had been diagnosed with fibromyalgia, but ambulated normally and had full range of motion of her spine. (Tr. 339). It

was noted that she reported new symptoms of knee pain in July of 2006, and pain increasing in severity. (Id.) W. Maple wrote,

28 The Assessment form does not indicate the preparer's first name, but elsewhere in the record, it is indicated that plaintiff's DDS counselor was named Wendy Maple. See (Tr. 221). The Assessment form does not include the preparer's credentials.

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"given the [claimant's] reports of pain and findings in file, she should limit her standing to 6 hours and sitting is unrestricted. She can stand/walk for 6 hours in an 8 hour day." On November 14, 2006, plaintiff saw (Id.) Dr. Ross with

complaints of headaches and tense muscles. positive tender points upon examination.

(Tr. 349).

She had

(Id.)

She indicated she (Id.) On

needed a letter enabling her to cancel a gym membership.

December 19, 2006, Dr. Ross wrote a letter addressed "To Whom It May Concern," stating and that that he was treating plaintiff from for floor

fibromyalgia,

plaintiff

should

"refrain

exercise and strenuous activity," and should not be enrolled at a gym, as such activities seemed to "worsen her condition." 343). On February 1, 2007, plaintiff saw Dr. Liss and reported that she was taking Spanish, Developmental Psychology, and another class. (Tr. 395). Plaintiff indicated she wished to get a (Tr.

Bachelor of Arts degree in Psychology, and that she had applied for Social Security. (Id.) Plaintiff indicated she wished to try

Cymbalta,29 which Dr. Liss prescribed. (Id.) Dr. Liss's assessment was Attention Deficit Disorder and Fibromyalgia, and he assessed a GAF of 50. (Id). On April 11, 2007, plaintiff saw Thomas G. Johans, M.D.,

29 Cymbalta, or Duloxetine, is used to treat depression and generalized anxiety disorder, and is also used to treat pain resulting from diabetic neuropathy and fibromyalgia. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a604030.html

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of Dr. Schmidt's office, with complaints of pain.

(Tr. 372-75).

Dr. Johans noted a long history of total body aches and pains. (Tr. 372). Dr. Johans noted that, since seeing Dr. Schmidt in

August of 2006, plaintiff quit smoking; quit drinking alcohol and caffeine; modified her diet; and lost 30 to 40 pounds as a result. (Id.) Dr. Johans also noted that plaintiff had changed her major

from education to psychology, because she thought that a career in psychology might offer a work environment that allowed for frequent breaks. (Id.) Plaintiff described her fibromyalgia as total body pain, and that she hurt everywhere someone pressed on her. Plaintiff (Id.)

reported that she had pain while resting, sitting, (Tr. 372).

sleeping, and standing, and was never without it.

Examination revealed antalgic gait, but no rigidity, spasticity or flaccidity of any muscles. elicited. (Id.) (Tr. 373). Trigger points were not

Tender points were evident with slight palpation (Id.) Extension, flexion and lateral rotation

to various areas.

of the back elicited pain, but facet joints were not painful to palpation. 373). (Id.) Neurological examination was negative. (Tr.

Plaintiff was alert, fully oriented and well-groomed, and

showed normal memory capabilities and reasoning. (Id.) Dr. Johans noted that plaintiff was unable to find a posture that relieved her pain, and that plaintiff constantly wrung her hands and appeared very edgy and jittery. (Id.) Plaintiff reported experiencing

trauma because of the loss of her 15-year-old brother to suicide, -20-

and stated that the tragedy caused her to change her life for the better. (Id.) Dr. Johans assessed fibromyalgia, but also offered the differential diagnoses of myofascial pain syndrome, fibromyalgia, (Tr. 373-74). Dr. Johans opined

and chronic fatigue syndrome.

that plaintiff may benefit from accupuncture therapy, but explained that such therapy was quite expensive, and required a life-long commitment. (Id.) Dr. Johans opined that trigger point injections for plaintiff's myofascial syndrome and a transcutaneous electrical nerve stimulator (TENS) unit may relieve some of her fibromyalgia symptoms, and may be affordable through Medicaid. (Id). Dr.

Johans recommended that plaintiff "stay in close contact" with her psychiatrist because "fibromyalgia certainly has been linked to primary depression and that can be very severe." (Tr. 375).

On March 9, 2007, plaintiff saw Dr. Ross with complaints of a tension headache, stating that she had gone to physical therapy and had pressure behind her left eye. (Tr. 348).

Plaintiff reported that, on March 1, 2007, she was involved in an automobile accident in which she was hit from behind, and that it was difficult to walk. (Id.) Upon examination, Dr. Ross noted

decreased range of motion of the cervical spine, and muscle spasm. (Id). On April 23, 2007, plaintiff saw Dr. Liss, and reported that she had lost weight, and had quit smoking and drinking soda, and was no longer taking Cymbalta. -21(Tr. 394). Plaintiff also

reported that she had earned grades of "A" in all of her subjects. (Id.) Dr. Liss's assessment was Attention Deficit Disorder and (Id.)

fibromyalgia, and he assessed a GAF of 55.

On May 28, 2007, Dr. Liss completed a Mental Residual Functional Capacity Questionnaire. (Tr. 397-402). Dr. Liss

indicated that plaintiff had depression, attention deficit disorder and fibromyalgia, and that she had an "unpredictable physical mental condition." (Tr. 397). Dr. Liss assessed plaintiff's

current GAF at 50, and indicated that her highest GAF in the past year was 51.30 (Id.) Dr. Liss indicated his clinical findings as (Id.) symptoms included mood

poor memory, poor concentration, and fatigue.31 Dr. appetite Liss opined and that plaintiff's energy,

disturbance

decreased

somatization,

disturbance, difficulty thinking or concentrating, persistent mood and affect disturbance, emotional withdrawal, psychological and behavioral abnormalities, easy distractibility, memory impairment, and sleep disturbance. regarding plaintiff's (Tr. 398). mental Dr. Liss also offered opinions and aptitude to perform

ability

unskilled, semiskilled, and skilled work, and her mental ability and aptitude to do certain types of jobs. (Tr. 399-400). There

were no areas in which Dr. Liss opined that plaintiff was either "unlimited or very good" or "limited but satisfactory." See (Id.)

On April 23, 2007, however, Dr. Liss assessed plaintiff's GAF at 55. (Tr. 394).
30 31

Other findings are indicated, but are illegible.

-22-

Dr. Liss opined that plaintiff had "no useful ability to function" with regard to maintaining attendance and being punctual; sustaining an ordinary routine without supervision; completing a normal workday and workweek without interruptions from

psychological symptoms; performing at a consistent pace without an unreasonable number of rest periods; dealing with normal work stress; and understanding, remembering and carrying out detailed instructions. (Id.) to meet work-like responding

Dr. Liss opined that plaintiff was "unable competitive procedures; standards" maintaining with regard to for remembering two hours;

attention

appropriately to changes in a routine work setting; maintaining awareness of normal hazards and taking appropriate precautions; setting realistic goals and making plans independently; and dealing with stress. (Id.)

Dr. Liss opined that plaintiff was "seriously limited but not precluded" from understanding, remembering, and carrying out short and simple instructions; working without being distracted; making simple work-related decisions; asking simple questions or requesting assistance; accepting instructions and responding

appropriately to criticism from supervisors; getting along with coworkers; interacting with the general public; maintaining socially appropriate behavior; adhering to basic standards of neatness and cleanliness; traveling in unfamiliar places; and using public transportation. (Id.) -23-

Dr. Liss opined that plaintiff's fibromyalgia interacted with her depression, and that he anticipated that her condition would cause her to be absent from work more than four days per month. (Tr. 401). He indicated that plaintiff was not a

malingerer, and that her impairments were reasonably consistent with her symptoms and functional limitations. On complaints of June pain 29, all 2007, over, plaintiff but saw (Id.) Dr. that Schmidt she had with some

stated

improvement.

(Tr. 376). Dr. Schmidt noted that plaintiff had seen

Dr. Johans, and was unable to afford the accupuncture treatment he had recommended. (Id.) Dr. Schmidt noted that plaintiff had (Id.) failed, Dr. and

changed her diet considerably, and had lost weight. Schmidt noted that Neurontin and Topamax had

recommended that plaintiff take Lyrica32 and do physical therapy. (Tr. 376-77). Dr. Schmidt's impression was fibromyalgia, and he

noted that trigger point injections would not be helpful for plaintiff's diffuse, generalized fibromyalgia pain. (Tr. 377).

Plaintiff saw Dr. Ross on July 19, 2007 with complaints of pain in her neck and shoulders, and reported feeling weak. 380). She reported having trouble staying asleep. (Id.) (Tr. On

August 21, 2007, she requested a handicapped parking placard to use

Lyrica, or Pregabalin, is used to relieve neuropathic pain (pain from damaged nerves) that can occur in the arms, hands, fingers, legs, feet, or toes in diabetic patients, or in the area of a rash in patients with shingles. It is also used to treat fibromyalgia. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a605045.html
32

-24-

at school, but it was indicated that this could not be done secondary to state regulations. (Tr. 381).

On August 6, 2007, plaintiff saw Dr. Liss and indicated she wished to see a particular neurologist who specialized in fibromyalgia. (Tr. 350). Plaintiff indicated that she had taken

"8 hours of Spanish" and expected to graduate in 2008 with a bachelor's degree. (Id.) Dr. Liss assessed plaintiff with

depression and fibromyalgia, and assessed a GAF of "<50."

(Id).

On January 17, 2008, plaintiff saw Dr. Ross and reported that she was doing her daily exercises, but that they hurt, and that she felt bad that she hurt every day. (Tr. 384). Dr. Ross's

assessment was "FMS," which is an abbreviation for Fibromyalgia Syndrome. (Id.) In June of 2008, Dr. Liss wrote that plaintiff had applied for social security, and was engaged and planning a June 2009 wedding. (Tr. 387).

On July 30, 2008, Dr. Liss completed a second Mental Residual Functional Capacity Questionnaire. (Tr. 388-93). Dr.

Liss indicated that he had treated plaintiff since 1997, and had seen her every one to three months. (Tr. 388). Dr. Liss indicated

his diagnoses as Attention Deficit, Fibromyalgia, and "disability," and assessed plaintiff with a current Global Assessment of

Functioning ("GAF") score of "<50," and also indicated that this

-25-

was plaintiff's highest GAF in the past year.33

(Id.)

Dr. Liss

indicated that plaintiff was taking Effexor and Adderall, and that these medications his caused no side effects. as "mood (Id.) swings, Dr. Liss

indicated

clinical

findings

fatigue,

exhaustion, poor attention, poor concentration," and wrote that plaintiff's prognosis was "persistent, progressive." (Id.) Dr.

Liss indicated that plaintiff exhibited several symptoms, including anhedonia (loss of interest in almost all activities) and emotional withdrawal; disturbances in appetite, mood and memory; decreased energy; anxiety, psychological/behavioral abnormalities; and

persistent "disturbance of vision, speech, hearing, use of a limb, movement and its control, or sensation." (Tr. 389).

With regard to plaintiff's aptitude to do unskilled work, Dr. Liss opined that plaintiff had "no useful ability to function" with regard to maintaining regular attendance and being punctual; sustaining an ordinary routine without special supervision;

completing a normal workday or workweek without interruptions from psychologically-based symptoms; performing at a consistent pace without an unreasonable number and length of rest periods; and dealing with normal work stress. (Tr. 390). Dr. Liss opined that

plaintiff was "unable to meet competitive standards" with regard to

GAF scores of 50 or below indicate serious symptoms or serious impairment in social, occupational, or school functioning. Halverson v. Astrue, 600 F.3d 922, 931 (8th Cir. 2010) (citing DSM-IV at 32).
33

-26-

remembering work-like procedures; maintaining attention for twohour segments; working in coordination with or proximity to others without being unduly distracted; making simple work-related

decisions; accepting instructions and responding appropriately to criticism from supervisors; getting along with co-workers or peers; responding appropriately to changes in a routine work setting; and maintaining precautions. limited, but awareness (Id.) not of normal hazards and taking proper

Dr. Liss opined that plaintiff was "seriously precluded," with regard to understanding,

remembering, and carrying out very short and simple instructions, and asking simple questions or requesting assistance. (Id.) There were no areas in which Dr. Liss found plaintiff "unlimited or very good," or "limited but satisfactory." See (Tr. 390). Dr. Liss

then wrote: "combination of poor memory poor concentration, moods, exhaustion, muscle weakness and pain makes it difficult to be employable." With (Id.) regard to plaintiff's mental ability to do

semiskilled and unskilled work, Dr. Liss opined that plaintiff had "no useful ability to function" with regard to understanding, remembering, and carrying out detailed instructions; setting

realistic goals or making plans independently of others; and dealing with stress of semiskilled and skilled work. (Tr. 391).

With regard to plaintiff's mental ability to do particular types of jobs, Dr. Liss opined that plaintiff was "unable to meet

competitive standards" with regard to traveling in unfamiliar -27-

places and using public transportation, and was "seriously limited, but not precluded" with regard to interacting with the general public; maintaining socially appropriate behavior; and adhering to basic standards of neatness and cleanliness. (Id.)

Dr. Liss opined that plaintiff did not have a low I.Q. or reduced intellectual functioning. (Tr. 392). Dr. Liss opined that plaintiff's depression and fibromyalgia exacerbated her experience of pain and physical symptoms, and that her impairment had lasted, or could be expected to last, for at least twelve months. (Id.)

He opined that plaintiff's condition would cause her to be absent from work for more than four days per month. opined that plaintiff were was not a malingerer, with her (Id.) and Dr. Liss that her and

impairments

reasonably (Id.)

consistent

symptoms

functional limitations.

B.

Hearing Testimony During the administrative hearing held on August 22,

2008, plaintiff was represented by attorney Traci Severs, and responded to questioning by the ALJ and Ms. Severs. When questioned by the ALJ, plaintiff testified that she was twenty-seven years of age, and university. (Tr. 22). was a senior at a local

Plaintiff testified that she was twelve

credit hours away from a bachelor's degree in psychology with a minor in Spanish, and only two courses away from a separate bachelor's degree in Spanish. (Id.) -28Plaintiff also testified

that, upon graduation, she would be only two classes away from obtaining a bachelor's degree in Spanish, and planned to return to school to complete that degree, in the hopes "to translate or something someday." (Tr. 22-23). Plaintiff testified that she

lived in a townhouse with her boyfriend, who was present at the hearing. (Tr. 23). Plaintiff testified that she last worked on August 12, 2006. (Id.) Before this date, plaintiff spent some time off work

on "FMLA"34 and had returned to work with accommodations, including working four hours per day, but found she was unable to do the job's "basic requirements." (Id.) The last time plaintiff worked

full-time was March of 2006, when she worked for "Bed, Bath, and Beyond" as a customer service employee, performing such duties as checkout and returns, and bridal consulting. (Tr. 24). Plaintiff

testified that this job required a lot of heavy lifting, sometimes 20 to 30 pounds, and sometimes heavier items, such as boxes containing sets of dishes. (Id.)

Plaintiff testified that "a host of things" precluded her from working full-time. (Tr. 25). She testified that it hurt her

to stand or sit for too long; that she was sensitive to fluorescent lights, which caused "severe headaches"; that she was unable to focus on things; and that she had to stop and rest if she felt sore or tired. (Id.) Plaintiff testified that she had to have time to

34

"FMLA" is an abbreviation for Family Medical Leave Act.

-29-

do her physical therapy exercises each day, and that she had to make sure that she "[got] in some meditation or other things to make sure that [she could] release stress and tension that way." (Id.) Plaintiff testified, "It's - - it seems as if my days are

always so full with just being able to, be able to get through that day, and be able to do it all over again the next day." (Id.)

Plaintiff testified that she had tried to work at a company that her parents owned, but would work for an hour and stop due to great pain. (Tr. 25). Plaintiff described her pain as "very generalized," and that it covered her entire body. (Id.) She testified that her

pain often concentrated in her trapezius area and neck, and that she experienced headaches. (Id.) She testified that, if she

walked for too long, she had pain in her knees, and then stated, "[o]r, some days, it's just there because it just wants to be there in my knees, or - - and goes there." Plaintiff testified that she

had cramping in her hands after writing, "even just writing for school," and would then be unable to grasp things. (Tr. 26).

Plaintiff testified, "[m]y skin, if you touch my skin, it feels like it's bruised all over, so even like (INAUDIBLE) bumping up to me or something can be quite painful." (Id.) Plaintiff testified,

"I have a difficult time sleeping, so I have to make sure that - my whole day is spent taking care of myself. house clean. I'm unable to get my

I'm unable to - - there's so many things that - - you

know, there's so many accommodations that, that I need that I still -30-

haven't found.

At this time, working 40 hours a week, being able

to work full-time and bring home a full-time status paycheck is impossible." (Id.)

Plaintiff testified that she was taking nine credit hours at school, and that she received services from the Disability Office at her university. great deal of (Id.) She testified that she had "a including excused absences and

accommodations,

accommodations that the nature of employment would not, would not allow." (Tr. 26). Plaintiff testified that she missed a lot of

class, and that her papers were accepted late on many occasions. (Id.) She testified that she took her tests outside of the

classroom away from everyone else because of her concentration and focus issues. (Tr. 26-27).

Plaintiff testified that she suffered from fibromyalgia, which began in the fall or winter of 2005-2006 and was diagnosed by Dr. Ross, following a period of time during which plaintiff took many different pain medications and tried a number of things, including limiting her activity and seeing a chiropractor, to control her pain. all functioning (Tr. 27-28). in her She testified that she once lost following a chiropractic Plaintiff

extremities

adjustment, and visited the emergency room.

(Tr. 27).

testified that she was once referred to a Pain Management Center, which she considered to be "diagnosis by experimenting." 28). Plaintiff testified that she could walk for about 10 or -31(Tr. 27-

15 minutes; could stand for 20 minutes; and could sit for an hour. (Tr. 28). She testified she could lift no more than five pounds

due to problems with her neck, and due to a "tuning fork" sensation in her arms. of things. (Tr. 29). Plaintiff explained, "It's a combination They experience pain. My

My hands are, are, are weak.

arms - - it's the whole - - the entirety of every muscle that, that is involved in lifting is affected." Plaintiff testified that (Id.) she was once 20 pounds

overweight, and that she used to smoke a pack of cigarettes per day, and drink soda and beer. stopped these behaviors after (Id.) (Id.) being She testified that she advised that they were

detrimental to her health.

Plaintiff also testified that (Id.)

she began walking for exercise, and lost nearly 50 pounds.

She testified that she stopped going to physical therapy for financial reasons, and that her parents and grandmother had been paying for it, but it became too much. (Tr. 29-30). Plaintiff

testified that she continued on her own the lessons she learned in therapy. (Tr. 30). Plaintiff testified that she had been seeing a

psychiatrist "for many years," and that she continued to do so following the loss of her brother in 2006. (Tr. 30-31). She

testified that she had "mild depression" stemming from the loss of her brother and also due to her inability to work, stating that she had once been a hard worker. (Tr. 31). Plaintiff testified that (Id.) She

her depression affected every aspect of her life. -32-

explained, I do struggle when, you know, when I struggle from depression, and it, it affects everything in my life. It affects my relationships with those around me, I'm irritable, it's hard, hard for me to get out of bed, it's hard for me to sleep, it's hard for me to do a lot. But I think I could overcome - - I think I would have been able to - - I don't know. I guess, if I - - I don't know. Everything just seems to be [exacerbated]. Every - - my highs aren't as high as they used to be, and my lows are much lower than they used to be. And I was diagnosed with attention deficit when I was 15, and that is something that I've always tried to overcome, but it is apparent in every aspect of my life. It is apparent in my finances, it's apparent when I clean the house. You know, I have - - I'll start cleaning one room, and I, I notice something in another, and I, and I stop, and I go to the other room, and it's the same thing. And so, when you look around, everything's been started, but nothing has been finished. And that pretty much has been the pattern in my life always. But I would try to do things to, to overcome them, but that's why I have the accommodations at [her university]. They originated because of my mental health issues and because of my inability to concentrate and to focus, because I would go to take a test, and I would notice, instead of being able to retrieve the information that I had stored from studying, all I could zero in on was the person flipping a page next to me; and the person walking in the hall; or some (INAUDIBLE); or people would start turning in their, their tests, and I would become very anxious; or - - and - - but my distractibility has increased tenfold because of the severe amount of pain that I'm in, and it has definitely impaired my abilities to do a great many things that I used to find very enjoyable. (Tr. 31-32).

-33-

Plaintiff

testified

that

she

took

Effexor,

Adderall

(while in school), Lyrica, Bactrim,35 and Amitriptyline (Elavil) for sleep. (Tr. 32-33). When asked about side effects, she testified

that Amitriptyline caused her to crave sweets, and to have a dry mouth. (Tr. 33). When asked about her daily activities, plaintiff

testified that, when not in school, she rose and ate breakfast; took her dog for a five-minute walk; and did some low-impact exercises, the exercises prescribed during physical therapy, which took two hours to complete. (Tr. 34). Plaintiff testified that (Id.) She testified that

she also meditated, and then made lunch.

she went to the grocery store and picked up little things rather than getting everything at once. (Id.) Plaintiff testified that

she tried to clean a room, but that this did not always happen. (Id.) Plaintiff testified that she once spent an hour cleaning a

bathroom, and as a result was "useless" during the entire following week. (Tr. 34). Regarding laundry, plaintiff testified that her

boyfriend carried the laundry baskets up and down the stairs, but that she changed the loads and folded the laundry. (Id.)

Plaintiff testified that she liked to cook, and that she drove. (Tr. 34-35). Regarding attending to her personal care, plaintiff

Bactrim, or Co-Trimoxazole, is an antibiotic that is a combination of trimethoprim and sulfamethoxazole, a sulfa drug. It eliminates bacteria that cause various infections, including infections of the urinary tract, lungs (pneumonia), ears, and intestines. It is also prescribed for other purposes. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a684026.html
35

-34-

testified that she was able to perform "the minimum care," but also testified that she used a shower chair to accomplish shaving her legs. (Tr. 35). She testified that she could not blow dry her (Id.) Plaintiff

hair because it was hard to hold the blow dryer.

further testified that, at times in the past, she had required assistance from a family member to climb the stairs to get to the shower, and to bring meals to her, but that such intervention was not presently necessary. (Id.)

Plaintiff testified that she had trouble being around people who were smoking, and did not like to be in loud areas. (Tr. 36). She testified that she had no trouble being around Plaintiff testified that (Id.)

people while at the grocery store. (Id.)

her wedding was scheduled for "next June."

Plaintiff testified that she had once complained to a doctor about being sore after going boating in 2006, but that she had not been boating since that time. (Id.) She testified that

she had a large, close-knit family that often vacationed at "the lake," but that she was no longer able to be a part of that. 36). (Tr.

Plaintiff testified that "working out," medication, resting (Tr. 36-

when she needed to rest, and eating healthy helped her. 37).

When plaintiff was asked whether her medications helped, she

replied "[n]ot really," and then stated that Lyrica did not help; Amitryptyline "definitely helps;" Adderall helped her to focus when she needed to; and Effexor has helped her emotions "follow an equilibrium, find some kind of equilibrium." -35(Tr. 37). Plaintiff

testified that nothing helped with her pain.

(Tr. 37-38).

Plaintiff testified that her "worst" problem was the pain, because it exacerbated everything else, and dictated her life. (Tr. 38). Upon examination by her attorney, plaintiff testified that her boyfriend worked "all day and all night now since I, since I moved in, and since we were going to be getting married. He, he

works six times more than the average person to make up for my lack of working." (Id.) Plaintiff testified that her boyfriend also

had to take responsibility for many other things because she was unable to take care of the house or shop for groceries. (Tr. 39).

Plaintiff testified that she had been attending college for ten years. (Id.) She testified that she was easily overwhelmed, and of

had changed her career goal away from being a teacher because

the work hours and fluorescent lights, and because she would not be able to just take a nap or take a walk. (Tr. 40). Plaintiff

testified that she had considered being a psychologist, because she could stretch in between patient appointments, but concluded that graduate school was too competitive. (Tr. 40-41). Plaintiff

concluded that school had been a "long journey," because she was "still fishing for, for the answer." (Tr. 41).

Plaintiff testified that she missed working, missed being a part of something, and testified that she would do anything to be able to work again. (Id.) Plaintiff's attorney noted that

plaintiff was "very well-dressed," and plaintiff replied that she -36-

liked to try to look nice every day because she felt that if she looked nice on the outside, she might feel better on the inside. (Id.) The ALJ then heard testimony from Delores Gonzalez, a Vocational Expert ("VE"). Ms. Gonzalez questioned plaintiff

regarding her prior employment, and plaintiff testified that she had worked as a cashier for two years, as a server at parties, and as a waitress at Bar Italia for two to three years, and as a child care worker for three and a half years. Ms. Gonzalez classified (Tr. 43-44). past work as a

plaintiff's

cashier as light and unskilled, but noted that plaintiff had described it as involving lifting up to 30 pounds. (Tr. 44). Ms.

Gonzalez classified plaintiff's child care and food service jobs as light and semiskilled jobs. (Id.)

The ALJ asked Ms. Gonzalez to assume a hypothetical person of plaintiff's age, education, and past work, and to further assume that the individual was "limited to performing what is defined as light exertion level work, with the limitations that the individual could frequently climb stairs and ramps, ropes, ladders, and scaffolds; and frequently balance, stoop, kneel, crouch and crawl; that the individual was limited to reaching in all

directions to frequent as - - and not constant; the individual should avoid concentrated exposure to unprotected heights and hazardous machinery; the individual should - - or, must work in a temperature-controlled environment; and the individual is limited -37-

to performing simple tasks only, as far as that goes."

(Tr. 45).

The ALJ asked Ms. Gonzalez whether such an individual could perform any of plaintiff's past work, and Ms. Gonzalez testified that such an individual could work as a cashier, and as a server at parties. (Tr. 45-46). The ALJ then asked Ms. Gonzalez to assume an

individual with all of the previously-mentioned non-exertional limitations, but who was limited to only sedentary-level work. (Tr. 46). Ms. Gonzalez testified that such a person could work as

a surveillance system monitor; a charge account clerk; and as an addressor. individual (Id.) with The ALJ then asked Ms. Gonzalez to assume an all of the exertional and non-exertional

limitations of the person in the second hypothetical, with the added requirement that such job would have to allow for occasional unscheduled disruptions of both the workday and the workweek, and Ms. Gonzalez testified that there would be no jobs available in the open labor market for such a person. (Tr. 46-47).

Plaintiff's counsel then asked Ms. Gonzalez whether jobs would exist for a person with a GAF of 50. (Tr. 47). Ms. Gonzalez

testified that such a person would have serious symptoms globally, socially, occupationally, and in school functioning, and that there would be no jobs available for a person who consistently had GAF scores of 50 or below. (Id.)

III.

The ALJ's Decision

-38-

The ALJ in this case noted that plaintiff had met the insured status requirements through March 31, 2010. (Tr. 7). The

ALJ determined that plaintiff had the "severe" impairments of depression, degenerative disc disease of the cervical spine, and fibromyalgia. (Tr. 9). The ALJ determined that, due to

plaintiff's depression, she had the following limitations: "mild restrictions of activities of daily living; no difficulties

maintaining social functioning; moderate difficulties maintaining concentration, persistence, and pace; and no episodes of

decompensation of extended duration."

(Id.)

The ALJ also found

that, while plaintiff had a history of asthma, that condition did not impose any significant work-related limitations, and was not severe. (Id.) or (Id.) The ALJ found that plaintiff did not have an combination of impairments, of listing-level

impairment, severity.

The ALJ determined that plaintiff retained the

residual functional capacity to occasionally lift and carry 20 pounds; frequently lift and carry 10 pounds; sit for six hours in an eight-hour workday; stand/walk for six hours in an eight-hour workday; frequently climb ramps and stairs; frequently climb ropes, ladders, and scaffolds; frequently balance, stoop, kneel, crouch, crawl, and reach in all directions. (Tr. 10). The ALJ found that

plaintiff should avoid concentrated exposure to hazardous machinery and unprotected heights, and must work in a temperature-controlled environment, and was limited to performing simple tasks only. (Id.) -39-

The

ALJ

concluded

that

plaintiff

was

capable

of

performing her past relevant work as a cashier and server at parties, and was not under a disability as such is defined in the Act. (Tr. 15-16).

IV.

Discussion To be eligible for Social Security Disability Insurance

Benefits and Supplemental Security Income under the 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." 423(d)(1)(A), 1382c(a)(3)(A). disabled "only if [her] 42 U.S.C. §§

An individual will be declared or mental impairment or

physical

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

education,

experience,

other

kind

substantial gainful work which exists in the national economy." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). To determine whether a claimant is disabled, the

-40-

Commissioner engages in a five-step evaluation process.

See 20

C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987). The Commissioner begins by deciding whether the claimant If the claimant is

is engaged in substantial gainful activity. working, disability benefits are denied. decides whether the claimant has a

Next, the Commissioner "severe" impairment or

combination of impairments, meaning that which significantly limits her ability to do basic work activities. If the claimant's The

impairment(s) is not severe, then she is not disabled.

Commissioner then determines whether claimant's impairment(s) meets or is equal to one of the impairments listed in 20 C.F.R., Subpart P, Appendix 1. If claimant's impairment(s) is equivalent to one of the listed impairments, she is conclusively disabled. At the

fourth step, the Commissioner establishes whether the claimant can perform her past relevant work. disabled. If so, the claimant is not

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 on 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 adequate to support the conclusion. -41Johnson v.

Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).

This "substantial

evidence test," however, is "more than a mere search of the record for evidence supporting the Commissioner's findings." Coleman v.

Astrue, 498 F.3d 767, 770 (8th Cir. 2007) (internal quotation marks and citation omitted). "Substantial evidence on the record as a Id. (internal

whole ... requires a more scrutinizing analysis." quotation marks and citations omitted). To determine whether the Commissioner's

decision

is

supported by substantial evidence on the record as a whole, the Court must review the entire administrative record and consider: 1. The ALJ's credibility findings. 2. The plaintiff's vocational factors. 3. The medical evidence consulting physicians. from treating and

4. The plaintiff's subjective complaints relating to exertional and non-exertional activities and impairments. 5. Any corroboration by third parties of the plaintiff's impairments. 6. 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. Coleman, 498 F.3d at 770; Warburton v. Apfel, 188 F.3d 1047, 1050 -42-

(8th Cir. 1999). If, however, after review, the court finds it possible to draw two inconsistent conclusions from the evidence, and one of those conclusions rep