Whitehead v. Social Security Administration

Filing 18

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED and this cause is remanded to the Commissioner for further proceedings. Judgment shall be entered accordingly. Signed by Magistrate Judge Frederick R. Buckles on 9/7/2011. (NCL)

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

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No.

4:10CV1066 FRB

MEMORANDUM AND ORDER
This cause is before the Court on plaintiff’s appeal of
an adverse ruling of 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 History

On May 3, 2007, plaintiff Jeannette L. Whitehead filed an
application for Disability Insurance Benefits (DIB) pursuant to
Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq., and
an application for Supplemental Security Income (SSI) pursuant to
Title XVI of the Act, 42 U.S.C. §§ 1381, et seq., in which she
alleged that she became disabled on September 15, 2006.
51,

157-60.)

Social

Security

Administration denied plaintiff’s claims for benefits.

(Tr. 55,

56, 58-62.)
hearing

was

On

initial

consideration,

the

(Tr. 149-

On August 12, 2009, upon plaintiff’s request, a
held

before

an

Administrative

Law

Plaintiff testified and was represented by counsel.

Judge

(ALJ).

A vocational

expert also testified at the hearing.

(Tr. 20-38.)1

On September

22, 2009, the ALJ issued a decision denying plaintiff's claims for
benefits.

(Tr. 8-19.)

On April 16, 2010, after consideration of

additional evidence, the Appeals Council denied plaintiff's request
for

review

of

the

ALJ's

decision.

determination

thus

Commissioner.

A.

as

the

1-4.)

final

The

decision

of

ALJ's

42 U.S.C. § 405(g).
II.

stands

(Tr.

the

Evidence Before the ALJ

Plaintiff’s Testimony
At the hearing on August 12, 2009, plaintiff testified in

response to questions posed by the ALJ and counsel.

At the time of

the hearing, plaintiff was forty-one years of age.
Plaintiff is not married.

(Tr. 27.)

(Tr. 24.)

Plaintiff lives with her

mother, her mother’s husband, her brother, and her four children
who are seventeen, sixteen, ten, and nine years of age.

Plaintiff

completed twelve years of school and has one year of college.

(Tr.

25.)
From 1990 to 1995, plaintiff worked in the research/
marketing field performing data entry work.
December

2006,

laboratory.

plaintiff

(Tr. 209.)

worked

as

a

From October 1995 to

processor

in

a

medical

Plaintiff testified that she tried to

return to work in 2007 but that her worsening physical condition

1

The hearing was originally scheduled for March 31, 2009. The
ALJ continued the hearing, however, to provide plaintiff an
opportunity to secure legal representation. (Tr. 40-54.)
-2-

prevented her from doing so.

(Tr. 25-26.)

Plaintiff testified that she is unable to work because of
lupus, which causes swelling and pain in her legs, feet, hands, and
arms.

Plaintiff testified that she is in a lot of pain all of the

time.

Plaintiff testified that her medication for the condition

consists of a series of injections administered periodically.
Plaintiff testified that she does not feel as though the medication
helps her lupus symptoms.

Plaintiff also testified that she was

recently hospitalized for the condition.

(Tr. 26-27, 29.)

Plaintiff testified that she also suffers emotionally and
sees a psychiatrist. Plaintiff testified that she has daily crying
spells, hears voices and has many fears.

Plaintiff testified that

she does not like taking a shower because she is fearful of being
alone in a closed room and feels as though someone is watching her.
Plaintiff testified that she takes medication but does not feel it
helps her.

(Tr. 30-32.)

Plaintiff testified that her medication

makes her feel groggy and lightheaded, and that her psychiatrist
gave her additional prescriptions to try to wean her from such
medication.

(Tr. 27-28.)

Plaintiff testified that she did not

have these problems while she was working.

(Tr. 32-33.)

Plaintiff testified that she did not begin experiencing
physical

or

emotional

problems

until

she

Plaintiff testified that she enjoyed working.

stopped

working.

Plaintiff testified

that she was a good worker and liked the work she performed and the

-3-

people with whom she worked.

Plaintiff testified that she had a

“normal life” when she worked and that she does not like her
current lifestyle of just sitting around all day.

(Tr. 33.)

As to her daily activities, plaintiff testified that she
tries to nap during the day inasmuch as she has difficulty sleeping
at night.

Plaintiff testified that she tries to interact with her

children, but that she is unable to do a lot.

(Tr. 27.)

As to her exertional abilities, plaintiff testified that
she can walk for about five minutes and can stand for about five
minutes without sitting.
ten to fifteen minutes.
to ten pounds.
B.

Plaintiff testified that she can sit for
Plaintiff testified that she can lift five

(Tr. 28.)

Testimony of Vocational Expert
Dr. Jeffrey F. McGrowski, a vocational expert, testified

at the hearing in response to questions posed by the ALJ.
Dr. McGrowski classified plaintiff’s past work in data
entry as sedentary and semi-skilled, and as a laboratory supervisor
as medium and skilled.

(Tr. 34.)

The ALJ asked Dr. McGrowski to consider an individual of
plaintiff’s age and with the same education and work experience,
and to assume such an individual to be
limited to performing light exertion level
work. The individual can occasionally climb
stairs and ramps, and never climb ropes,
ladders and scaffolds, can occasionally stoop,
kneel, crouch, and crawl.
The individual
-4-

should
avoid
concentrated
exposure
to
unprotected heights, excessive vibration,
hazardous machinery.
And the individual is
limited to unskilled work only.
(Tr. 34-35.)
Dr. McGrowski testified that such a person could not perform
plaintiff’s past work but could perform light and unskilled jobs
such as bench assembler, of which 2,000 such jobs exist in the
State of Missouri and over 100,000 nationally; office helper, of
which 4,000 such jobs exist in the State of Missouri and over
200,000 nationally; and packer of small items, of which 1,500 such
jobs exist in the State of Missouri and over 100,000 nationally.
(Tr. 35.)
The ALJ then asked Dr. McGrowski to consider the same
individual as the first hypothetical, but that the individual was
limited to sedentary work.
person

could

perform

work

Dr. McGrowski testified that such a
as

a

packer

of

pharmaceuticals,

cosmetics, and small items, with 300 such jobs existing in the
State of Missouri and over 17,000 nationally; label cutter, with
200 such jobs existing in the State of Missouri and over 10,000
nationally; and small assembly work, of which 500 such jobs exist
in the State of Missouri and over 50,000 nationally.

(Tr. 35-36.)

The ALJ then asked Dr. McGrowski to add an additional
limitation to the person described in the second hypothetical, and
specifically, that “any job must allow for occasional unscheduled

-5-

disruptions of both the work and work week, secondary to pain and
the necessity to lie down for extended periods of time, as effects
of medication, those types of things.”

(Tr. 36.)

Dr. McGrowski

testified that such a person could not perform any jobs of which he
was aware.

(Tr. 36.)
III.

Medical Records2

Plaintiff visited Dr. Francisco J. Garriga of North
County Medicine and Rheumatology on March 9, 2005, and complained
of having pain and burning sensations in her feet and legs for a
couple of months, but that the condition had recently worsened.
Plaintiff reported having “broken sleep.”
Neurontin3 for plaintiff.

Dr. Garriga prescribed

(Tr. 307.)

Plaintiff visited Dr. Garriga on April 8, 2005, and
reported an increase in her symptoms, especially in her arms, legs
and shoulders. Review of systems was positive for Raynaud’s, pain,

2

Additional evidence which was not before the ALJ was
submitted to and considered by the Appeals Council. This evidence
consists of treatment notes dated May 14 to August 5, 2009, from
Dr. Francisco J. Garriga; and a Mental Residual Functional Capacity
Questionnaire completed October 23, 2009, by Clinical Social
Worker, Mary McBride.
(Tr. 516-25; 527-31.)
The Court must
consider these records in determining whether the ALJ's decision
was supported by substantial evidence. Frankl v. Shalala, 47 F.3d
935, 939 (8th Cir. 1995); Richmond v. Shalala, 23 F.3d 1441, 1444
(8th Cir. 1994). For the sake of continuity, discussion of these
records is incorporated with that of the records before the ALJ at
the time of his decision.
3

Neurontin (Gabapentin) is used to relieve the pain of
postherpetic neuralgia.
Medline Plus (last revised July 15,
2011)<http://www.nlm.nih.gov/medlineplus/druginfo/meds/a694007.ht
ml>.
-6-

dry mouth, stiffness, poor energy level, depression, and swelling.
Plaintiff reported that Neurontin did not help her pain or sleep,
but that the medication nevertheless made her drowsy.

Physical

examination was normal with respect to examination for tenderness,
range of motion, and trigger points.

Plaintiff was diagnosed with

lupus erythematosus (LE) and insomnia.

Plaintiff was prescribed

Nortriptyline,4 and blood tests were ordered.

(Tr. 305.)

On April 11, 2005, plaintiff reported to Dr. Garriga that
there was no change to her condition.
doppler was ordered.

An echocardiogram with

(Tr. 307.)

A chest x-ray taken April 26, 2005, yielded no evidence
of active lung disease.

(Tr. 300.)

Plaintiff underwent an

echocardiogram that same date for evaluation of possible pulmonary
hypertension.

Trace to mild mitral insufficiency was noted.

Otherwise, the echocardiogram was predominantly normal.
11.)

(Tr. 310-

A pulmonary function test performed that same date was

normal.

(Tr. 308-09.)

of the test results.

On April 28, 2005, plaintiff was informed
Plaintiff reported to Dr. Garriga’s office

that she was sleeping better with Nortriptyline.

(Tr. 307.)

On November 8, 2005, Dr. Garriga noted that plaintiff had
“gone through much stress” and was not sleeping well.
that plaintiff was recently divorced.
4

It was noted

Plaintiff reported having

Nortriptyline is used to treat depression and is sometimes
used to treat panic disorders and postherpetic neuralgia. Medline
Plus (last reviewed Sept. 1, 2008)<http://www.nlm.nih.gov/
medlineplus/druginfo/meds/a682620.html>.
-7-

many aches and pains and that she had a poor energy level.
Plaintiff

reported

having

had

a

rash

recently

on

her

face.

Plaintiff also reported having some trouble swallowing, depression,
hair loss, swelling, dry mouth, and stiffness.

It was noted that

plaintiff had been off of her medication for months.
noted plaintiff to look sad.
and no synovitis.

Physical examination showed no rash

Plaintiff had full range of motion, but many

tender and trigger points were noted.
plaintiff

with

Dr. Garriga

connective

tissue

Dr. Garriga diagnosed

disease

(CTD),

probable

LE;

myofascial pain; and stress. Plaintiff was instructed to restart
Humira.5

Soma6 was

prescribed.

instructed to return in four months.

Plaintiff was counseled and
(Tr. 304, 318.)

Plaintiff returned to Dr. Garriga on February 24, 2006,
and reported a marked increase in hand pain.

Plaintiff also

reported that she could not sleep well and that Humira was not
helpful to her.
pain,

stiffness,

Plaintiff reported having dry eyes, dry mouth,
and

poor

energy

the

wrists

and

level.
fingers

Examination
with

minimal

showed

tenderness

about

wrist

synovitis.

Dr. Garriga diagnosed plaintiff with CTD with possible

5

Humira is used to relieve the symptoms of certain autoimmune
disorders, including rheumatoid arthritis, Crohn’s disease,
ankylosing spondylitis, and psoriatic arthritis.
Medline Plus
(last revised Apr. 15, 2011)<http://www.nlm.nih.gov/medlineplus/
druginfo/meds/a603010.html>.
6

Soma is a muscle relaxant used to relax muscles and relieve
pain and discomfort caused by strains, sprains and other muscle
injuries.
Medline Plus (last reviewed Aug. 1, 2010)<http://
www.nlm.nih.gov/medlineplus/druginfo/meds/a682578.html>.
-8-

Sjogren’s disease. Plaintiff was instructed to discontinue Humira,
and Prednisone7 was prescribed.
in four weeks.

Plaintiff was instructed to return

(Tr. 303, 317.)

Plaintiff failed to appear for a scheduled appointment
with Dr. Garriga on March 17, 2006.

(Tr. 302.)

Plaintiff telephoned Dr. Garriga’s office on March 29,
2006, complaining of pain and swelling on the left side and
especially in her thigh. Plaintiff reported that Prednisone caused
her to have headaches, making her feel as though her head were to
explode.

Dr. Garriga saw plaintiff that same date as “an urgent

appointment”
plaintiff’s

because
neck.

of

Dr.

headaches,
Garriga

tearful.

Plaintiff

reported

examination

showed

noted

no

Physical

the

bilaterally.

No

rash

or

weakness,
plaintiff

improvement
trapezii

synovitis

and

was

to

with

to

noted.

be

pain
be

in

almost

Prednisone.
very
Dr.

tight
Garriga

diagnosed plaintiff with systemic lupus erythematosus (SLE) and
myofascial pain.
and

Dr. Garriga injected the trapezii with Lidocaine

Depo-Medrol,8

and

prescribed

Baclofen.9

Plaintiff

was

7

Prednisone is a corticosteroid used to treat lupus by
reducing swelling and redness and by changing the way the immune
system works. Medline Plus (last reviewed Sept. 1, 2008)<http://
www.nlm.nih.gov/medlineplus/druginfo/meds/a601102.html>.
8

Depo-Medrol is a corticosteroid used to relieve inflammation.
Medline Plus (last reviewed Sept. 1, 2008)<http://www.nlm.nih.gov/
medlineplus/druginfo/meds/a601157.html>.
9

Baclofen acts on the spinal cord nerves and decreases the
number and severity of muscle spasms caused by multiple sclerosis
or spinal cord diseases. It also relieves pain and improves muscle
-9-

instructed to call if there was no improvement but to otherwise
return in two months.
a pain specialist.

Dr. Garriga determined to refer plaintiff to

(Tr. 302, 306, 316.)

Plaintiff telephoned Dr. Garriga’s office on March 31,
2006, and complained of pain across the lower part of her back.
Dr. Garriga noted that he would administer an injection to the
lower back if plaintiff’s upper back had improved.

Plaintiff

reported that there was no improvement in her upper back.

(Tr.

307.)
Plaintiff visited Dr. Stephen G. Smith on April 4, 2006,
in consultation for pain management.

Plaintiff reported having

thoracic and lumbar-sacral pain with considerable increase in pain
subsequent

to

the

recent

injection

in

Dr.

Garriga’s

office.

Plaintiff reported the pain to have slightly decreased since that
time but that the pain increases with standing and sitting for
prolonged periods of time, and with bending.

Plaintiff reported

the pain to decrease with muscle relaxants and sleeping, but that
her sleeping had decreased because of the pain.

Dr. Smith noted

plaintiff’s medical history to be remarkable only for lupus, and
that she had no history of depression or anxiety.

Dr. Smith noted

plaintiff’s current medications to be Prednisone, Baclofen and

movement.
Medline
Plus
(last
reviewed
Sept.
1,
2008)
<http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682530.html>.
- 10 -

Aleve.10

Physical examination showed limited range of motion with

forward flexion, extension and rotation about the low back, and
decreased lumbar lordosis which caused the greatest amount of pain.
Range of motion about the hips was normal, as was motor strength of
the hips, knees and ankles.

Sensation was noted to be intact.

Straight leg raising was negative.

Chest lift in the prone

position caused mild low back pain.

Palpation of the low back

showed significant myofascial trigger points in the left gluteals
and piriformis.
the

rhomboids

Significant myofascial pain was likewise noted in
and

levator

scapulae.

Upon

conclusion

of

the

examination, Dr. Smith diagnosed plaintiff with spondylosis of the
lumbar

spine

with

myofascial

pain

in

the

left

gluteals

piriformis, and in the rhomboids and levator scapulae.
expressed

no

interest

in

injection

therapy.

and

Plaintiff

Plaintiff

was

prescribed Ultram11 and was referred back to Dr. Garriga. (Tr. 31415.)
On April 6, 2006, Dr. Garriga determined for plaintiff to
discontinue the Tramadol which had been prescribed by the pain
center, due to headaches and dizziness.

(Tr. 306.)

10

Aleve (Naproxen) is used to relieve pain, tenderness,
swelling, and stiffness caused by osteoarthritis, rheumatoid
arthritis, and ankylosing spondylitis. Medline Plus (last revised
May 16, 2011)<http://www.nlm.nih.gov/medlineplus/druginfo/meds/
a681029.html>.
11

Ultram (Tramadol) is used to relieve moderate to moderately
severe pain. Medline Plus (last reviewed Feb. 1, 2011)<http://
www.nlm.nih.gov/medlineplus/druginfo/meds/a695011.html>.
- 11 -

On April 13, 2006, plaintiff telephoned Dr. Garriga’s
office with complaints of increased back pain.
reported that she was not sleeping.

Plaintiff also

increase her dosage of Prednisone.

Plaintiff was instructed to
(Tr. 306.)

On April 18, 2006, plaintiff reported to Dr. Garriga that
there was no improvement in her condition.
had been off of work since March 27.

It was noted that she

Plaintiff was instructed to

decrease her dosage of Prednisone, and Tizanidine12 was prescribed.
(Tr. 306.)
Plaintiff visited Dr. Garriga on April 24, 2006, and
reported that she could not swallow and had lost weight. Plaintiff
had lost eight pounds since her appointment on March 29, 2006.
Plaintiff complained that she had a lot of pain and swelling in her
arms and hands, and stiffness in her fingers.

Plaintiff also

reported that she had back pain in her upper and lower back if she
stood or sat for too long.

Plaintiff reported that she slept a lot

and that Prednisone was not helpful. Dr. Garriga noted plaintiff’s
history of LE and that she had strong titer antibodies.

Dr.

Garriga diagnosed plaintiff with dysphagia and determined for
plaintiff

to

undergo

additional

12

evaluation.

Plaintiff

was

Tizanidine is used to relieve the spasms and increased muscle
tone caused by multiple sclerosis or spinal injury. Medline Plus
(last reviewed Sept. 1, 2008)<http://www.nlm.nih.gov/medlineplus/
druginfo/meds/a601121.html>.
- 12 -

prescribed Lexapro13 and CellCept.14

(Tr. 301, 313.)

Plaintiff returned to Dr. Garriga on September 6, 2006,
and reported that sleep continued to be a problem, and that
Norflex15 did not help.
under stress.

Plaintiff was noted to be depressed and

Plaintiff was diagnosed with CTD and insomnia, and

Rozerem16 was prescribed.

(Tr. 321.)

On January 8, 2007, Dr. Garriga noted plaintiff to have
increased her dosage of Prednisone due to increased pain, and that
such increased dosage helped a little.

Plaintiff reported having

pain, dry eyes, dry mouth, stiffness, and low energy levels.
was questioned whether plaintiff suffered depression.
examination was normal.

It

Physical

Plaintiff was diagnosed with SLE and

insomnia, with steroid therapy.

Tegretol17 was prescribed.

(Tr.

13

Lexapro is used to treat depression and generalized anxiety
disorder.
Medline Plus (last revised Aug. 15, 2011)<http://
www.nlm.nih.gov/medlineplus/druginfo/meds/a603005.html>.
14

CellCept is an immunosuppressive agent which weakens the
body’s immune system. It is used to help prevent transplant organ
rejection, but is also used to treat Crohn’s disease. Medline Plus
(last revised Dec. 1, 2009)<http://www.nlm.nih.gov/medlineplus/
druginfo/meds/a601081.html>.
15

Norflex is used to relieve pain and discomfort caused by
strains, sprains and other muscle injuries. Medline Plus (last
revised Dec. 1, 2010)<http://www.nlm.nih.gov/medlineplus/druginfo/
meds/a682162.html>.
16

Rozerem is used to help patients who have sleep-onset
insomnia to fall asleep more quickly. Medline Plus (last revised
May
1, 2009)<http://www.nlm.nih.gov/medlineplus/druginfo/meds/
a605038.html>.
17

Tegretol is used to treat trigeminal neuralgia. Medline Plus
(last revised Sept. 1, 2009)<http://www.nlm.nih.gov/medlineplus/
- 13 -

320.)
Plaintiff returned to Dr. Garriga on February 20, 2007,
and reported that she had been out of Prednisone for one week.
Plaintiff complained of a lot of pain and swelling in her arms,
hands and legs, as well as low back pain.
hands to “lock up.”

Plaintiff reported her

Plaintiff reported her energy levels to be

better and that she was sleeping better.

Plaintiff reported that

her pain worsened when she was taken off of CellCept.

Plaintiff

was diagnosed with LE, and CellCept and Prednisone were prescribed.
(Tr. 345.)
On March 19, 2007, plaintiff reported to Dr. Garriga that
she stopped taking CellCept because it was causing nausea and
headaches.

Plaintiff reported her pain to be at a level six on a

scale of one to ten.

Plaintiff’s energy level was low, and

plaintiff reported having stiffness, pain, dry eyes, dry mouth,
hair loss, and depression.

Dr. Garriga noted plaintiff to be

tearful. Dr. Garriga determined to admit plaintiff to the hospital
for intravenous administration of steroids.

(Tr. 344.)

Plaintiff was admitted to Depaul Health Center on March
22,

2007,

for

an

acute

exacerbation

dizziness secondary to medication.

of

SLE,

leukopenia,

and

Plaintiff reported having

severe pain in her legs, nausea, headaches, and diffuse pains
throughout

her

body.

Dr.

Garriga

druginfo/meds/a682237.html>.
- 14 -

noted

upon

admission

that

plaintiff reported to him three days prior that she could no longer
manage at home.

Dr. Garriga noted plaintiff’s diagnosis of lupus

to date back to April 2003, with symptoms being present since 2002.
Plaintiff was admitted to the hospital for intravenous steroids and
for a more exhaustive physical therapy evaluation.

Dr. Garriga

noted plaintiff’s leg pain to have previously been thought to be
neuropathic, but that Neurontin did not help.
that Tegretol helped with the pain.

Plaintiff reported

During the course of her

hospitalization, plaintiff experienced episodes of dizziness which
were suspected to be related to medication.

Myocardial perfusion

scan and adenosine thallium tests were unremarkable. Plaintiff had
no improvement with her leg pains, and she was unable to sleep.
Plaintiff was discharged home on March 24, 2007, so that she could
get more sleep.

Plaintiff was prescribed Neurontin and Prednisone

upon discharge.

(Tr. 322-37.)

On April 24, 2007, plaintiff reported to Dr. Garriga that
she did not feel well and that her legs felt heavy.
currently

had

no

swelling

of

the

hands,

but

she

Plaintiff
reported

intermittent swelling since being discharged from the hospital.
Dr. Garriga diagnosed plaintiff with SLE and myofascial pain.
Zoloft18 and Baclofen was prescribed.
return in four weeks.

Plaintiff was instructed to

(Tr. 343.)

18

Zoloft is used to treat depression, obsessive-compulsive
disorder, panic attacks, post-traumatic stress disorder, and social
anxiety disorder.
Medline Plus (last revised Aug. 15, 2011)
<http://www.nlm.nih.gov/medlineplus/druginfo/meds/a697048.html>.
- 15 -

On

May

22,

2007,

Dr.

Garriga

declined

plaintiff’s

telephone request for an increased dosage of Prednisone.
Garriga said that he would see her the following week.
Plaintiff

Dr.

(Tr. 447.)

visited Dr. Garriga on May 30, 2007, and

complained that she was in much pain and was not sleeping well.
Plaintiff also reported that her father suddenly died recently.
Review of systems was positive for facial rash, Raynaud’s, dry
mouth, stiffness, hair loss, and depression.

Plaintiff reported

her pain to be at a level ten on a scale of one to ten.
questioned whether plaintiff took her medications.
noted to be tearful.

It was

Plaintiff was

It was noted that plaintiff’s case manager

suggested that plaintiff undergo a psychiatric consult.

Physical

examination was unremarkable with notation that plaintiff had full
range of motion with no tenderness or trigger points.
was diagnosed with depression and SLE.

Plaintiff

Dr. Garriga questioned

whether plaintiff’s rash was because of her steroid therapy.

Dr.

Garriga prescribed Vivactil19 for plaintiff and referred her to Dr.
Lafferty.

(Tr. 435.)
Plaintiff was evaluated on June 28, 2007, by psychologist

Martin Rosso for disability determinations.

The purpose of the

evaluation was to assess plaintiff’s cognitive ability level and
mental status.

(Tr. 353-56.)

It was noted that plaintiff had

19

Vivactil is used to treat depression. Medline Plus (last
reviewed
Sept.
1,
2008)<http://www.nlm.nih.gov/medlineplus/
druginfo/meds/a604025.html>.
- 16 -

lupus and rheumatoid arthritis. Plaintiff’s medications were noted
to be Mirtazapine,20 Rituxan,21 Vivactil, Prednisone, and Gabapenten.
Plaintiff reported having recently begun seeing a psychiatrist.
(Tr. 354.)

Plaintiff reported

that she did not want to be

hospitalized for fear that her ex-husband may “try to get the
children.”

Plaintiff reported

that lupus prevented her from

getting out and that she had no hobbies.

Plaintiff reported that

she used to enjoy reading but that she now was unable to remember
what she reads.

(Tr. 355.)

Plaintiff reported to Dr. Rosso that

she had been depressed since being diagnosed with lupus.

As to

plaintiff’s level of intellectual functioning, Dr. Rosso made the
following observations:
Jeanette [sic] demonstrates below average
intellectual functioning.
Her vocabulary
development is below average. She is unable
to explain the meaning of such words as
“reluctant.” Her abstract verbal reasoning is
below average. She is below average in her
ability to solve similarities items. She is
unable to explain how such words as, “work and
play” are alike.
She is also unable to
explain an abstract verbal proverb.
She is
below average in solving everyday problems
using language. For example, she is unable to
answer the question, “Why does land in the
20

Mirtazapine is used to treat depression. Medline Plus (last
reviewed
Sept.
1,
2008)<http://www.nlm.nih.gov/medlineplus/
druginfo/meds/a697009.html>.
21

Rituxan is used to treat the symptoms of rheumatoid arthritis
by causing the death of certain blood cells that may cause the
immune system to attack the joints. Medline Plus (last revised
Mar. 1, 2010)<http://www.nlm.nih.gov/medlineplus/druginfo/meds/
a607038.html>.
- 17 -

city cost more than land in the country.” She
is below average in her ability to mentally
solve
arithmetic
word
problems.
She
demonstrates below average arithmetic mental
calculation
ability
and
below
average
arithmetic reasoning.
She is unable to
calculate math problems that require two steps
to arrive at an answer. For example, she is
unable to calculate, “What is the average of
5, 10 and 15?”
She is only able to solve
simple one step problems of simple addition
and subtraction. She relied upon her fingers
to perform the calculations.
Her fund of
learned verbal information is below average
for her age. For example, she does not know
the answer to such questions as, “Who was
President of the U.S. during the Civil War?”
His [sic] overall language functioning appears
to be below average. She demonstrates a below
average short-term auditory memory and below
average level of concentration at this time.
She is only able to perform serial three’s.
She demonstrates a below average working
memory.
She is only able to remember three
digits and repeat the sequence in reverse
order. Her long-term verbal memory is below
average.
She is unable to remember any of
three words after twenty minutes.
(Tr. 355.)
Plaintiff was noted to be oriented times three, with coherent
speech

and

organized

thoughts.

No

tangential

or

delusional

thinking was noted. Plaintiff reported having thoughts of suicide,
but that her children gave her hope.

Plaintiff reported that her

father had recently passed away, that he has been talking to her
since his death, and that she has seen his shadow or outline.

Dr.

Rosso noted plaintiff’s affect to be significantly depressed and
further

noted

that

plaintiff

cried

- 18 -

frequently

throughout

the

evaluation.

Plaintiff reported having frequent periods of anxiety

and that she felt jumpy, had difficulty breathing and experienced
pain in her chest.

Plaintiff reported that her children tell her

that she has difficulty remembering things they have told her, and
plaintiff admitted to having trouble with remembering things.
Plaintiff reported that she is embarrassed when she is unable to
remember what someone has told her.

Upon conclusion of the

evaluation, Dr. Rosso opined:
Jeanette’s [sic] cognitive ability is below
average.
Based upon her history of having
completed high school, her level of cognitive
functioning has declined.
She also demonstrates significant difficulty with short term
and long-term memory.
Her decline in
cognitive functioning may be related to her
significant depression.
At this time, she
demonstrates significant depression, which she
reports began after she had been diagnosed
with Lupus. Due to her decline in cognitive
functioning and memory, Jeanette [sic] does
not appear at this time capable of managing
her funds.
(Tr. 356.)
Dr. Rosso diagnosed plaintiff with major depressive disorder—
single episode, and assigned a Global Assessment of Functioning
(GAF) score of 40.22

(Tr. 356.)

22

A
GAF
score
considers
“psychological,
social,
and
occupational functioning on a hypothetical continuum of mental
health/illness.”
Diagnostic & Statistical Manual of Mental
Disorders, Text Revision 34 (4th ed. 2000). A GAF score of 31-40
indicates some impairment in reality testing or communication
(e.g., speech is at times illogical, obscure, or irrelevant) or
major impairment in several areas, such as work or school, family
- 19 -

On July 13, 2007, plaintiff underwent a consultative
physical examination for disability determinations.

Dr. Fedwa

Khalifa noted plaintiff’s chief complaints to be SLE, rheumatoid
arthritis and depression.

With respect to her SLE, plaintiff

reported that she has pain and swelling with stiffness in all of
her joints and follows up with her rheumatologist every two months.
Plaintiff reported that she can walk for half a block, stand for
fifteen minutes, can bend her knee with difficulty, but cannot
squat.

With

respect

to

her

rheumatoid

arthritis,

plaintiff

reported that the condition primarily affects her hand, wrist,
elbow, shoulder, hip, and ankle with swelling, stiffness and pain.
Plaintiff reported a tendency to drop things and difficulty with
fine manipulative actions such as buttoning clothes.

Plaintiff

also reported that she cannot carry any weight over her head and
has difficulty combing her hair.

With respect to her depression,

plaintiff reported her condition to be stable with medication.
Examination of the back and extremities showed no spasm, tenderness
or swelling.

Plaintiff was noted to have pain upon range of motion

of the shoulder, but with no limitation of movement.

Pain was

noted in the thigh with hip and knee flexion, but joint movements
were within normal limits.

Straight leg raising was negative.

relations, judgment, thinking, or mood (e.g., depressed man avoids
friends, neglects family, and is unable to work; child frequently
beats up younger children, is defiant at home, and is failing at
school).
- 20 -

Examination

of

the

nervous

system

was

unremarkable.

Upon

completion of the examination, Dr. Khalifa diagnosed plaintiff with
SLE with complaints of pain, swelling and stiffness in all joints;
rheumatoid arthritis affecting upper extremities with severe pain
with any joint movement; and depression, stable.

(Tr. 358-64.)

On July 17, 2007, V. Kinsey, a medical consultant with
disability determinations, completed a Physical Residual Functional
Capacity

Assessment

wherein

s/he

opined

that

plaintiff

could

occasionally lift and carry twenty pounds, frequently lift and
carry ten pounds, stand or walk about six hours in an eight-hour
workday,

and

sit

about

six

hours

in

an

eight-hour

workday.

Consultant Kinsey opined that plaintiff had no limitations with
pushing or pulling with either her feet or hands.

Consultant

Kinsey also opined that plaintiff could occasionally climb ramps
and stairs, stoop, kneel, crouch, and crawl; could frequently
balance;

but

could

never

climb

ladders,

ropes

or

scaffolds.

Consultant Kinsey opined that plaintiff had no manipulative, visual
or communicative limitations.

As to environmental limitations,

Consultant Kinsey opined that plaintiff should avoid concentrated
exposure

to

unlimited.

extreme

cold

and

vibration,

but

was

otherwise

(Tr. 365-70.)
On

July

26,

2007,

Geoffrey

Sutton,

a

psychological

consultant with disability determinations, completed a Psychiatric
Review Technique Form in which he opined that plaintiff’s mental

- 21 -

impairment was not severe, specifically finding that plaintiff had
mild

restrictions

of

daily

activities;

mild

difficulties

in

maintaining social functioning; mild difficulties in maintaining
concentration,

persistence

or

decompensation.

pace;

and

no

episodes

of

(Tr. 379-82.)

On July 30, 2007, plaintiff failed to appear for a
scheduled appointment with Dr. Garriga.

(Tr. 436.)

Plaintiff visited Dr. Garriga on August 1, 2007, for an
infusion of Rituxan. Plaintiff experienced itching and chills with
the injection.

Plaintiff was given intravenous Benadryl, and it

was noted that plaintiff would be given Benadryl prior to any
further infusions of Rituxan.

(Tr. 447.)

Plaintiff returned to Dr. Garriga on August 18, 2007, for
another Rituxan infusion.

It was noted that plaintiff began

experiencing chest pain upon administration, and the procedure was
briefly stopped.
procedure well.
in six weeks.

Upon reinstitution, plaintiff tolerated the
Plaintiff’s next Rituxan infusion was noted to be

(Tr. 447.)

Plaintiff telephoned Dr. Garriga on August 30, 2007,
complaining of chest pain, shortness of breath, left shoulder pain,
and fatigue.
room.

Dr. Garriga advised plaintiff to go to the emergency

(Tr. 447.)
Plaintiff was admitted to the emergency room at DePaul

Health

Center

on

August

30,

2007,

- 22 -

with

complaints

of

chest

discomfort

and

shortness

of

breath.

Plaintiff

reported

the

pressure-like sensation to have begun two weeks prior when she
received her lupus medication by infusion.

Plaintiff reported the

pain to be constant, to worsen when she walks, and to be at a level
seven on a scale of one to ten.
took an antidepressant.

It was also noted that plaintiff

Physical examination was unremarkable.

CT scan of the chest yielded unremarkable results.
an

echocardiogram were likewise normal.

Toradol23 for pain.

A

The results of

Plaintiff was given

(Tr. 408-33.)

On September 26, 2007, plaintiff telephoned Dr. Garriga
and

complained

prescribed.

that

she

was

achy

and

sore.

Prednisone

was

(Tr. 448.)

Plaintiff visited Dr. Garriga on September 21, 2007, and
reported that she had been taking an antidepressant as prescribed
by a psychiatrist for two months.
a little pain in her legs.
at a level seven.
head.

Plaintiff also reported having

Plaintiff reported her pain level to be

Plaintiff reported having sharp pains in her

Review of systems was positive for rash, depression and

stiffness.

Dr. Garriga diagnosed plaintiff with LE with positive

ssA antibodies.

It was noted that plaintiff was taking Rituxan.

Dr. Garriga noted that he needed a list of plaintiff’s other
medications and told plaintiff that he would call her with a

23

Toradol is used to relieve moderately severe pain. Medline
Plus
(last
revised
Oct.
1,
2010)<http://www.nlm.nih.gov/
medlineplus/druginfo/meds/a693001.html>.
- 23 -

treatment plan.

(Tr. 436.)

On January 18, 2008, Dr. Garriga completed a Physical
Residual Functional Capacity Questionnaire in which he reported
that he sees plaintiff every three to four months for treatment of
systemic lupus for which plaintiff’s prognosis was fair.

Dr.

Garriga reported that plaintiff suffered pain, weakness, poor
concentration, insomnia, headaches, and rash on account of her
condition.

Dr. Garriga described plaintiff’s pain to be over most

muscles and joints, and to include headaches. Dr. Garriga reported
that the pain worsens with activity and is greater than a level
seven on a scale of one to ten.

Dr. Garriga explained that facial

rash and positive ANA and ssA antibodies constituted clinical
findings and objective signs of plaintiff’s disease, and that the
disease is treated with CellCept and Prednisone.

Dr. Garriga

reported, however, that plaintiff experienced side effects from the
medication and did not feel that her condition had improved with
the medication.

Dr. Garriga reported that plaintiff was not a

malingerer, and that her depression and anxiety contributed to the
severity of her symptoms and functional limitations.

Dr. Garriga

opined that plaintiff’s pain or other symptoms would constantly
interfere with the attention and concentration needed to perform
simple work tasks. Dr. Garriga opined that plaintiff was incapable
of low stress jobs, noting that plaintiff takes a lot of medication
and cannot concentrate.

As to plaintiff’s functional limitations,

- 24 -

Dr. Garriga opined that plaintiff could walk two city blocks
without rest or severe pain, could sit for thirty minutes at a
time, and could stand for fifteen minutes at a time.

Dr. Garriga

opined that plaintiff could sit for less than two hours in an
eight-hour workday and could stand and/or walk for less than two
hours in an eight-hour workday.

Dr. Garriga opined that plaintiff

would need to walk about every twenty minutes during an eight-hour
workday for five minutes each time.

Dr. Garriga opined that

plaintiff would need a job which permitted shifting positions at
will from sitting, standing or walking.

Dr. Garriga opined that

plaintiff would need an unscheduled break to rest approximately
every two hours during an eight-hour workday, and that such breaks
would need to be fifteen minutes in length.

Dr. Garriga opined

that plaintiff could occasionally lift and carry less than ten
pounds, could rarely lift and carry ten pounds, and could never
lift and carry twenty or more pounds.

Dr. Garriga opined that

plaintiff could rarely twist and could never stoop, crouch, squat,
climbs ladders, or climb stairs. Dr. Garriga opined that plaintiff
did not have significant limitations with reaching, handling or
fingering.

Dr. Garriga opined that plaintiff would be absent from

work more than four days a month on account of her impairment or
treatment.

Dr. Garriga reported that the onset of the described

limitations occurred in April 2003.

(Tr. 295-99.)

Plaintiff returned to Dr. Garriga on January 21, 2008,

- 25 -

who

noted

plaintiff

to

have

had

many

emergency

room

visits.

Plaintiff reported her current pain to be at a level nine.

Dr.

Garriga noted the presence of dry eyes, dry mouth, stiffness, and
depression.

Plaintiff also reported having urinary frequency and

incontinence.
normal.

Plaintiff was tearful.

Physical examination was

Plaintiff was diagnosed with LE, urinary and gastro-

intestinal symptoms, and depression.

(Tr. 437.)

On February 5, 2008, plaintiff failed to appear for a
scheduled appointment with Dr. Garriga.

(Tr. 448.)

On February 22 and March 7, 2008, plaintiff received
Rituxan infusions.
noted.

Plaintiff’s complaints of chest pain were

(Tr. 448.)
On June 23, 2008, Dr. Garriga noted plaintiff’s elevated

blood pressure and advised plaintiff to contact her primary care
physician.

(Tr. 449.)
Plaintiff visited Dr. Michael Spezia on July 30, 2008,

and requested that she undergo a kidney function test.

Dr. Spezia

noted plaintiff’s medical history to include a diagnosis of lupus.
Upon examination, plaintiff was diagnosed with LE, and laboratory
tests were ordered. Plaintiff was prescribed medication, including
Lexapro.

(Tr. 397-98.)
Plaintiff underwent echocardiography and doppler study on

August 11, 2008, in response to her complaints of chest pain and
hypertension.

The

tests showed left atrial enlargement with

- 26 -

redundant mitral valve leaflets, with mild mitral regurgitation.
Otherwise, the results of the tests were normal.

(Tr. 394.)

Plaintiff visited Dr. Spezia on August 27, 2008, and
complained of having trouble sleeping, and specifically that she
had trouble going to sleep and staying asleep.
advised

that

conditions.

Dr.

Spezia

did

not

give

Plaintiff was

prescriptions

for

such

(Tr. 393.)

On September 4, 2008, Dr. Garriga refilled plaintiff’s
prescription for Prednisone.

(Tr. 447.)

Plaintiff visited Dr. Garriga on October 10, 2008, and
complained of experiencing numbness in the left upper and lower
extremities when leaning on that side.
that her hands get stiff.

Plaintiff also reported

It was noted that plaintiff took Tylenol

for pain. Plaintiff also reported improvement with continued doses
of Rituxan. Plaintiff was tearful.

Dr. Garriga noted plaintiff to

be taking Cymbalta for depression.

Physical examination showed no

swelling and full range of motion about all the joints.
Garriga

diagnosed

plaintiff

with

paresthesia, and chronic pain.
administered.

CTD,

depression,

Dr.

unexplained

Another infusion of Rituxan was

Laboratory testing was ordered.

instructed to return in four months.

Plaintiff was

(Tr. 385, 449.)

On October 13, 2008, plaintiff was informed that recent
blood tests showed her to be anemic.
recommended.

(Tr. 449.)

- 27 -

Additional testing was

On October 21, 2008, plaintiff telephoned Dr. Garriga and
informed him that since taking Rituxan, she had experienced a lot
of pain and burning sensation throughout her body.

Plaintiff also

reported her feet, ankles and hands to be swollen.
reported her symptoms to continue all day and night.

Plaintiff
Dr. Garriga

questioned whether or not to administer the second dose of Rituxan.
(Tr. 449.)
Plaintiff returned to Dr. Garriga on November 7, 2008.
Plaintiff reported that she was not doing well with Rituxan.
was noted that plaintiff continued to take Prednisone.

It

Review of

systems was positive for the presence of Raynaud’s, and side
effects from medications were questioned. Physical examination was
unremarkable.

Dr. Garriga diagnosed plaintiff with LE/CTD and

leukopenia, and laboratory tests were ordered.

(Tr. 384.)

On November 12, 2008, Dr. Garriga noted plaintiff’s lab
tests to show microcytic anemia.

It was determined that plaintiff

would not receive Rituxan for at least one month.

(Tr. 450.)

On March 1, 2009, Dr. Garriga advised plaintiff to
increase her intake of vitamin D inasmuch as laboratory tests
showed her to have decreased levels.

(Tr. 450.)

Plaintiff visited Dr. Garriga on March 6, 2009, and
complained of pain in her legs, feet and hands. Plaintiff reported
having

difficulty

holding

anything

- 28 -

in

her

hands.

Plaintiff

reported her primary care physician to have given her Trazodone24
for sleep and a cream for a rash on her neck and legs.
systems

was

positive

for

fever,

rash,

nodules,

Review of
difficulty

swallowing, dry mouth, swelling, and depression. Dr. Garriga noted
plaintiff to be alert and cooperative but tearful.

Dr. Garriga

noted plaintiff’s current medications to be Prednisone, Cymbalta,
Tylenol Arthritis Pain, and vitamin D. Physical examination showed
all joints to be normal.

Dr. Garriga diagnosed plaintiff with CTD

– Sjogren Syndrome and depressive disorder. Dr. Garriga encouraged
plaintiff to see a psychiatrist.

(Tr. 451-52, 454-55.)

In a letter written that same date to Dr. Spezia, Dr.
Garriga wrote:
Jeannette continues to feel poorly.
She is
tearful most of the time. Her mom tried to
get her to go to a psychiatric hospital, but
she refused.
She continues to complain of
severe pain.
Her exam today is unremarkable.
She has autoimmune disease characterized by
leukopenia and sicca syndrome with positive
autoantibodies.
I haven’t added any medication.
follow her mother’s advice.

I urge her to

(Tr. 453.)

24

Trazodone is used to treat depression and is sometimes used
to treat insomnia.
Medline Plus (last revised Aug. 1,
2009)<http://www.nlm.nih.gov/medlineplus/druginfo/meds/a681038.ht
ml>.
- 29 -

Plaintiff went to BJC Behavioral Health on June 10, 2009,
and reported hearing voices, seeing a man, and having a feeling
that the man is watching her and following her. Plaintiff reported
that she does not shower because she does not want the man to see
her,

and

that

she

wore

layers

of

clothing

for

protection.

Plaintiff’s mother accompanied her to the appointment and reported
that plaintiff had been trying to convince her that the man was
real.

Plaintiff reported becoming very depressed in 2006 after

becoming unable to work due to her health problems, and that she
has chronic pain, poor memory, crying spells, depressed mood,
fatigue, and difficulty concentrating.

Plaintiff also reported

high paranoia, not wanting to go out in public, and fear of
sleeping.

Plaintiff reported that she saw a psychiatrist and was

placed on antidepressants, but that she could not follow up with
such treatment when she lost her insurance.

The case manager noted

that plaintiff was presently unable to take care of herself due to
the severity of her symptoms and recommended hospitalization.
Plaintiff was diagnosed with major depressive disorder, severe with
psychosis, and was assigned a GAF score of 43.25

(Tr. 495-508.)

Plaintiff was admitted to the Metropolitan St. Louis
Psychiatric Center on June 10, 2009, and was discharged on June 19,
2009.

Upon admission, plaintiff reported to Dr. Nicholas Nguyen
25

A GAF score of 41-50 indicates serious symptoms (e.g.,
suicidal
ideation,
severe
obsessional
rituals,
frequent
shoplifting) or any serious impairment in social, occupational, or
school functioning (e.g., no friends, unable to keep a job).
- 30 -

that her psychiatric issues began when her physical health began to
deteriorate due to lupus and rheumatoid arthritis.

Plaintiff

reported that since the time she could no longer work because of
her health, she has had a down mood with broken sleep patterns,
decreased
Plaintiff

interest,
also

excessive

reported

guilt,

having

and

some

decreased

hopelessness.
energy,

poor

concentration, fluctuating appetite, and suicidal ideation in the
form of command auditory hallucinations.

Plaintiff reported that

two months prior, she had begun hearing two voices which were
telling her to “leave” and asking “why are you here.”
also reported having visual hallucinations.

Plaintiff

Plaintiff reported

that her benefits ran out in March 2009 and that she could not
afford

her

medications

for

lupus

and

rheumatoid

arthritis.

Plaintiff reported that she never formally saw a psychiatrist in
the past but had been prescribed an antidepressant by her primary
care physician about one and a half years prior.

Plaintiff could

not recall the name of the medication, how long she took it, or
whether it changed her mood while she took it.

Upon examination,

plaintiff was diagnosed with depression and psychosis and was
assigned a GAF score of 21.26 Throughout the course of her hospital
stay, plaintiff was treated primarily with medication, with noted
26

A GAF score of 21 to 30 indicates behavior that is
considerably influenced by delusions or hallucinations, or serious
impairment
in
communication
or
judgment
(e.g.,
sometimes
incoherent, acts grossly inappropriately, suicidal preoccupation),
or inability to function in almost all areas (e.g., stays in bed
all day, no job, home or friends).
- 31 -

improvement.

Plaintiff declined extensive interaction with group

therapy, given the discord among the patients.

Upon discharge on

June 19, plaintiff was diagnosed with major depressive disorder,
severe recurrent with psychotic features, and was assigned a GAF
score of 71.27

Plaintiff’s discharge medications included Celexa,28

Risperdal,29 Naproxen, Iron, Tramadol, and Trazodone. Plaintiff was
provided prescriptions for Celexa and Risperdal so she could
continue on such medications.

Plaintiff was scheduled to see a

psychiatrist on June 30, 2009, and was instructed to follow up with
People’s Health Coverage.

(Tr. 459-87.)

Plaintiff returned to BJC Behavioral Health on June 30,
2009.

Plaintiff was noted to be depressed and tired of living, but

27

This GAF score of 71 appears on the typewritten Discharge
Summary which is signed by Dr. Ben Holt and Dr. Devna Rastogi.
(Tr. 459-62.)
A handwritten Aftercare/Discharge Plan completed
that same date indicates plaintiff’s GAF upon discharge to be 61.
This Plan is likewise signed by Dr. Holt. (Tr. 482.) A GAF score
of 61 to 70 indicates some mild symptoms (e.g., depressed mood and
mild insomnia) or some difficulty in social, occupational, or
school functioning (e.g., occasional truancy, or theft within the
household), but generally functioning pretty well, has some
meaningful interpersonal relationships. A GAF score of 71 to 80
indicates transient and expectable reactions to psychosocial
stressors (e.g., difficulty concentrating after family argument),
with no more than slight impairment in social, occupational or
school
functioning
(e.g.,
temporarily
falling
behind
in
schoolwork).
28

Celexa is used to treat depression.
Medline Plus (last
revised Aug. 15, 2011)<http://www.nlm.nih.gov/medlineplus/druginfo/
meds/a699001.html>.
29

Risperdal is used to treat the symptoms of schizophrenia.
Medline Plus (last revised June 15, 2011)<http://www.nlm.nih.gov/
medlineplus/druginfo/meds/a694015.html>
- 32 -

was not suicidal and wanted help.

Plaintiff reported that she

continued to have the signs and symptoms of hearing voices and
seeing a man, even after taking Risperdal. Plaintiff reported that
she has had no sleep because of the voices and because of her pain
due to lupus.

Plaintiff reported that she was tired, cried a lot,

and was hopeless and helpless.

Plaintiff’s memory was noted to be

poor and impaired, and it was noted that she had no energy.

Mental

status examination showed plaintiff to be oriented times three and
to have fair eye contact.
and to speak softly.

Plaintiff was noted to rock in her chair

Plaintiff’s mood was noted to be depressed

and her affect flat.

Plaintiff’s intellect was noted to be

average, with fair insight and judgment.

Plaintiff was diagnosed

with major depressive disorder, recurrent, with psychotic features.
It was noted that steroid-induced psychosis needed to be ruled out.
Plaintiff was assigned a GAF score of 55.30
was noted.

No plan for treatment

(Tr. 509-11.)
Plaintiff returned to Dr. Garriga on

July 9, 2009.

Plaintiff reported that she had been placed on antidepressants but
that she experienced drowsiness and parathesias because of them.
Plaintiff reported that despite her drowsiness, she had trouble
sleeping and was tired.

Review of systems was positive for

difficulty swallowing, depression, and swelling in the hands and
30

A GAF score of 51 to 60 indicates moderate symptoms (e.g.,
flat affect and circumstantial speech, occasional panic attacks) or
moderate difficulty in social, occupational, or school functioning
(e.g., few friends, conflicts with peers or co-workers).
- 33 -

ankles.

Dr. Garriga noted plaintiff to be alert and cooperative,

but to look depressed.
results.

Review of all joints yielded normal

No trigger or tender points were noted.

Dr. Garriga

diagnosed plaintiff with CTD with anemia, leukopenia, depression,
and positive ssA antibodies; high blood pressure; and low vitamin
D.

Laboratory testing was ordered, and Dr. Garriga considered

prescribing CellCept. Plaintiff was instructed to call Dr. Garriga
with her list of medications and to return in two months.

(Tr.

516-17.)
On July 14, 2009, Dr. Garriga completed a Physical
Residual Functional Capacity Questionnaire in which he reported
that

he

had

been

treating

plaintiff

since

April

2003,

that

plaintiff was diagnosed with chronic connective tissue disease, and
that plaintiff suffered pain, tiredness, weakness, numbness, and
depression on account thereof.

Dr. Garriga described plaintiff’s

pain to be in most joints and proximal muscles and that plaintiff
experienced such pain on a daily basis.

Dr. Garriga reported that

the pain worsens with activity and mostly is at a level seven on a
scale of one to ten.
tenderness

and

strongly

Dr. Garriga explained that some joint
positive

ssA

antibodies

constituted

clinical findings and objective signs of plaintiff’s disease, and
that the disease is treated with Rituxan infusions and other
immunosuppressives.

Dr. Garriga reported that plaintiff was not a

malingerer, and that depression contributed to the severity of

- 34 -

plaintiff’s symptoms and functional limitations.

Dr. Garriga

described plaintiff as having moderate depression.

Dr. Garriga

opined that plaintiff’s pain or other symptoms would interfere
frequently with the attention and concentration needed to perform
simple work tasks.

Dr. Garriga opined that plaintiff was capable

of low stress jobs.

As to plaintiff’s functional limitations, Dr.

Garriga opined that plaintiff could walk two city blocks without
rest or severe pain, could sit for thirty minutes at a time, and
could stand for fifteen minutes at a time.

Dr. Garriga opined that

plaintiff could sit for about two hours in an eight-hour workday
and could stand and/or walk for less than two hours in an eighthour workday. Dr. Garriga opined that plaintiff would need to walk
about every ninety minutes during an eight-hour workday for one
minute each time.

Dr. Garriga opined that plaintiff would need a

job which permitted shifting
standing or walking.

positions at will from sitting,

Dr. Garriga opined that plaintiff would need

eight unscheduled breaks to rest during an eight-hour workday, and
that such breaks would need to be five minutes in length.

Dr.

Garriga opined that plaintiff could occasionally lift and carry up
to ten pounds, could rarely lift and carry twenty pounds, and could
never lift and carry fifty pounds.

Dr. Garriga opined that

plaintiff could rarely twist and could never stoop, crouch, squat,
climbs ladders, or climb stairs. Dr. Garriga opined that plaintiff
did not have significant limitations with reaching, handling or

- 35 -

fingering.

Dr. Garriga opined that plaintiff would be absent from

work more than four days a month on account of her impairment or
treatment.

Dr. Garriga also opined that plaintiff should avoid

temperature extremes, fumes, dust, and gases. Dr. Garriga reported
that the onset of the described limitations occurred within the
previous three years. (Tr. 490-94.)
On October 23, 2009, Clinical Social Worker Mary McBride
completed a Mental Residual Functional Capacity Assessment wherein
she reported that she met with plaintiff at least two times per
week within the previous two months. Ms. McBride noted plaintiff’s
diagnosis to be major depressive disorder, recurrent, severe, with
psychotic features; and that plaintiff’s current GAF score was 43,
with her highest score within the past year noted to be 50.

Ms.

McBride noted that plaintiff had taken several antidepressant and
anti-psychotic medications, but that none of them had helped her
condition,
Effexor.32

including

her

current

medications

of

Abilify31

and

Ms. McBride reported that plaintiff also currently took

Vistaril33 and Trazodone.

Ms. McBride reported that plaintiff

31

Abilify is used to treat the symptoms of schizophrenia, and
is used in combination with an antidepressant to treat depression
when symptoms cannot be controlled by the antidepressant alone.
Medline Plus (last revised May 16, 2011)<http://www.nlm.nih.gov/
medlineplus/druginfo/meds/a603012.html>.
32

Effexor is used to treat depression.
Medline Plus (last
revised Mar. 1, 2009)<http://www.nlm.nih.gov/medlineplus/druginfo/
meds/a694020.html>.
33

Vistaril is used to relieve itching caused by allergies, to
control nausea and vomiting, and to treat anxiety. Medline Plus
- 36 -

suffers severe insomnia, fatigue, drowsiness, and concentration
problems as side effects from the medications.

Ms. McBride opined

that plaintiff’s prognosis was poor given her history of chronic
pain and inability to find an effective medication.

(Tr. 527.)

Ms. McBride opined that plaintiff primarily had serious to more
severe limitations with respect to her abilities to do unskilled
work, stating that
Jeanette [sic] was unable to recall 3 objects
that had been named 3 min[utes] prior in
[mental status examination]. Client has been
unable to remember doctor app[ointments] and
has cancelled due to being depressed and in
extreme pain. She experiences symptoms daily
of severe depression and hallucinations of the
auditory type.
Client is often distracted
during our conversations and app[ointment].
Client was unable to name what to do in case
of fire in the building. All she stated was
“cover my nose” in the event of smelling
smoke.
(Tr. 529-30.)
Ms. McBride opined that plaintiff primarily had serious to more
severe limitations with respect to her abilities to do semi-skilled
and skilled work, stating that “Jeanette [sic] was unable to carry
out simple instructions regarding where to meet doctor and CSW due
to poor memory.

She does not deal well with stress as this

increases her pain.”

(Tr. 530.)

With respect to plaintiff’s

ability to perform certain types of jobs, Ms. McBride stated that
(last revised Sept. 1, 2010)<http://www.nlm.nih.gov/medlineplus/
druginfo/meds/a694020.html>.
- 37 -

she observed plaintiff to “respond very softly or not at all to
others speaking to her.

She cannot take a shower each day due to

depression and would easily get lost in a public place due to poor
long term memory.”

(Id.)

Ms. McBride opined that plaintiff’s

psychiatric condition exacerbated her experience of pain, and that
plaintiff would be absent from work on multiple occasions.

Ms.

McBride opined that the described limitations have been present
since January 2006.

(Tr. 531.)
IV.

The ALJ's Decision

The ALJ found that plaintiff met the insured status
requirements of the Social Security Act and would continue to meet
them through December 31, 2011.

The ALJ further found that

plaintiff had not engaged in substantial gainful activity since
September 15, 2006.

The ALJ found plaintiff’s systemic lupus

erythematosus and depression to be severe impairments, but that
plaintiff did not have an impairment or combination of impairments
which met or medically equaled an impairment listed in 20 C.F.R.,
Part 404, Subpart P, Appendix 1.
statements

regarding

the

The ALJ determined plaintiff’s

intensity,

persistence

effects of her impairments not to be credible.

and

limiting

The ALJ found

plaintiff to have the residual functional capacity (RFC) to perform
light work, with limitations that plaintiff not climb

ropes,

scaffolds or ladders; avoid concentrated exposure to vibration,
industrial

hazards

and

unprotected

- 38 -

heights;

engage

in

only

occasional stooping, kneeling, crouching, and crawling; and engage
in only occasional climbing of ramps and stairs.
that

plaintiff

depression.
relevant

was

limited

to

unskilled

work

The ALJ found
because

of

her

The ALJ found plaintiff unable to perform her past

work.

Considering

plaintiff’s

age,

education,

work

experience, and RFC, the ALJ determined that plaintiff could
perform jobs that exist in significant numbers in the national
economy, and specifically, bench assembler, office helper and
packer.

The ALJ therefore found plaintiff not to be under a

disability at any time from September 15, 2006, through the date of
the decision.

(Tr. 11-19.)
V.

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

physical

- 39 -

or

mental

impairment

or

impairments are of such severity that [she] is not only unable to
do

[her]

previous

education,

and

work

work

but

cannot,

experience,

engage

considering
in

any

[her]

other

age,

kind

of

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,

Commissioner engages in a five-step evaluation process.

the

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

is engaged in substantial gainful activity.
working, disability benefits are denied.
decides

whether

the

claimant

has

a

If the claimant is

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

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 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

- 40 -

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 it adequate to support the conclusion.
v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).

Johnson

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

whole . . . requires a more scrutinizing analysis.”

Id. (internal

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 credibility findings made by the ALJ.

2.

The plaintiff's vocational factors.

3.

The medical evidence from treating and
consulting physicians.

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.
- 41 -

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 (8th Cir. 1999).

However,

even though two inconsistent conclusions may be drawn from the
evidence, the Commissioner's findings may still be supported by
substantial evidence on the record as a whole.

Pearsall, 274 F.3d

at 1217 (citing Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir.
2000)).

“[I]f there is substantial evidence on the record as a

whole, we must affirm the administrative decision, even if the
record could also have supported an opposite decision.” Weikert v.
Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal quotation
marks and citation omitted); see also 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.

Plaintiff

specifically contends that the ALJ failed to properly consider
opinion evidence rendered by Dr. Rosso and Dr. Garriga, and failed
to

provide

a

determination.

medical

basis

upon

which

to

base

his

RFC

Plaintiff also contends that the ALJ failed to

- 42 -

properly consider her credibility in the cause.

The undersigned

will address each of plaintiff’s contentions in turn.
A.

Opinion Evidence
Plaintiff claims that the ALJ failed to properly consider

the opinion of consulting psychologist, Dr. Rosso, and erred in
failing to give controlling weight to the opinion of plaintiff’s
treating physician, Dr. Garriga.
In evaluating opinion evidence, the Regulations require
the ALJ to explain in the decision the weight given to any opinions
from

treating

sources.

sources,

nontreating

sources

and

nonexamining

See 20 C.F.R. §§ 404.1527(f)(2)(ii), 416.927(f)(2)(ii).

The Regulations require that more weight be given to the opinions
of

treating

physicians

than

404.1527(d)(2), 416.927(d)(2).

other

sources.

20

C.F.R.

§§

A treating physician's assessment

of the nature and severity of a claimant's impairments should be
given controlling weight if the opinion is well supported by
medically acceptable clinical and laboratory diagnostic techniques
and is not inconsistent with other substantial evidence in the
record.

20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2).

This is so

because a treating physician has the best opportunity to observe
and evaluate a claimant’s condition,
since these sources are likely to be the
medical professionals most able to provide a
detailed,
longitudinal
picture
of
[a
claimant’s] medical impairment(s) and may
bring a unique perspective to the medical
- 43 -

evidence that cannot be obtained from the
objective medical findings alone or from
reports of individual examinations, such as
consultative
examinations
or
brief
hospitalizations.
20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2).
As such, evidence received from a treating physician is generally
accorded great weight with deference given to such evidence over
that from consulting or non-examining physicians.

See Thompson v.

Sullivan, 957 F.2d 611, 614 (8th Cir. 1992); Henderson v. Sullivan,
930 F.2d 19, 21 (8th Cir. 1991).
Opinions of treating physicians do not automatically
control

in

determining

Commissioner

is

disability,

required

to

however,

evaluate

the

inasmuch

record

as

as
a

Charles v. Barnhart, 375 F.3d 777, 783 (8th Cir. 2004).

the

whole.
When a

treating physician’s opinion is not given controlling weight, the
Commissioner must look to various factors in determining what
weight

to

accord

416.927(d)(2).

the

opinion.

20

C.F.R.

§§

404.1527(d)(2),

Such factors include the length of the treatment

relationship and the frequency of examination, the nature and
extent

of

the

treatment

relationship,

whether

the

treating

physician provides support for his findings, whether other evidence
in the record is consistent with the treating physician’s findings,
and the treating physician’s area of specialty.
404.1527(d)(2), 416.927(d)(2).

20 C.F.R. §§

The Regulations further provide

that the Commissioner “will always give good reasons in [the]
- 44 -

notice of determination or decision for the weight [given to the]
treating

source’s

opinion.”

20

C.F.R.

§§

404.1527(d)(2),

416.927(d)(2).
1.

Dr. Rosso
In his written decision, the ALJ recognized Dr. Rosso as

a consulting psychologist and determined not to accord Dr. Rosso’s
June 2007 opinion controlling weight:
As for the opinion evidence, I do not give Dr.
Rosso’s psychological consultative evaluation
controlling weight. Dr. Rosso stated that the
claimant’s cognitive ability was below average
and had declined.
This is not supported by
the rest of his report. The claimant did not
have any problem remembering what psychiatric
medications she was taking. Furthermore, the
claimant’s poor performance is not consistent
with her 13 years of education and relatively
high earnings.
(Tr. 17.)
Although the ALJ determined not to give controlling weight to Dr.
Rosso’s opinion, he failed to explain what weight he in fact gave
the opinion, whether it be substantial weight, little weight, no
weight, et cetera.

Nevertheless, the reasons provided by the ALJ

cannot serve as a basis upon which to discount Dr. Rosso’s opinion
inasmuch as they are not supported by substantial evidence on the
record as a whole.
First, to the extent the ALJ states that Dr. Rosso’s
conclusion regarding plaintiff’s below average cognitive ability

- 45 -

was not supported by the rest of his report, a review of the report
in toto shows the contrary.

Dr. Rosso conducted extensive testing

which showed multiple

and repeated episodes of below average

cognitive functioning.

Specifically, Dr. Rosso tested plaintiff

with regard to vocabulary, abstract verbal reasoning, similarities,
abstract
mental

verbal

proverbs,

calculations,

problem

arithmetic

solving,

mental

reasoning,

arithmetic,

learned

verbal

information, overall language functioning, short-term auditory
memory, concentration, working memory, and verbal memory.

In each

of these specific and defined areas, plaintiff demonstrated below
average abilities. In light of the extensive nature of Dr. Rosso’s
specific

findings

plaintiff’s

which

cognitive

supported

ability,

the

his

conclusion

ALJ’s

sole

regarding

reference

to

plaintiff’s ability to remember the names of five medications she
was

currently

taking

is

an

insufficient

basis

upon

which

to

discount Dr. Rosso’s conclusion as unsupported.
In addition, the ALJ determined to discount Dr. Rosso’s
opinion because plaintiff’s poor performance was inconsistent with
her thirteen years of education and relatively high earnings.

The

ALJ failed to acknowledge, however, that Dr. Rosso explicitly
recognized plaintiff’s performance to indeed represent a decline in
cognitive

ability

and

plaintiff’s depression.
this finding.

that

such

decline

was

attributed

to

A review of the record as a whole supports

Plaintiff began to exhibit depressive symptoms in

- 46 -

April 2005, and plaintiff’s treating physician suspected that
plaintiff suffered from depression in January 2007.

Plaintiff was

ultimately diagnosed with depression in May 2007 and continued with
said diagnosis thereafter.

As such, although plaintiff exhibited

depressive symptoms prior to her work cessation in September 2006,
the record shows the degree of her depression to have significantly
worsened subsequent thereto, ultimately resulting in a formal
diagnosis and treatment.

Dr. Rosso evaluated plaintiff subsequent

to her formal diagnosis of depression. The ALJ here discounted Dr.
Rosso’s

opinion

by

comparing

Dr.

Rosso’s

findings

regarding

plaintiff’s then-current abilities to what the ALJ assumed to be
plaintiff’s cognitive abilities she possessed prior to the time she
suffered a mental impairment.

For the ALJ to rely on supposition

and remote evidence of plaintiff’s cognitive abilities to discount
uncontroverted and supported evidence of her current abilities was
error.

Cf. Frankl v. Shalala, 47 F.3d 935, 938-39 (8th Cir. 1995)

(error to rely on remote evidence to determine RFC; RFC must
reflect what work, if any, claimant is capable of performing at
time of the hearing).
2.

Dr. Garriga
In his written decision, the ALJ recognized Dr. Garriga

as plaintiff’s treating physician and determined not to accord Dr.
Garriga’s July 2009 medical source statement controlling weight:
I do not give Dr. Garriga’s medical source
- 47 -

statement controlling weight because it is not
supported by his treatment notes and is
inconsistent with the rest of the medical
evidence.
For
example,
there
is
no
explanation why the claimant would be limited
to sitting no more than 2 hours per day. In
addition, the doctor does not explain how the
relative
mild
objective
findings
from
examinations and imaging would support the
claimant’s
complaints
of
severe
pain.
Finally, the doctor makes no mention of what
affect [sic] on the claimant’s functioning
would occur if she was totally compliant with
her medications.
(Internal citation to the record omitted.)34

(Tr. 17.)

As with Dr. Rosso’s opinion evidence, the ALJ fails to explain what
weight he gave to Dr. Garriga’s opinion. Although he gives reasons
for not according controlling weight to the opinion, he fails to
explain what weight he in fact gives the opinion and fails to give
good reasons for the weight so given, despite the Regulations’
requirement

to

do

so.

By

explaining

the

weight

given

to

physicians’ assessments, an ALJ both complies with the Regulations
and assists the Court in reviewing the decision.

Willcockson v.

Astrue, 540 F.3d 878, 880 (8th Cir. 2008).
While the ALJ’s reasons for not according controlling
weight

to

Dr.

Garriga’s

opinion

34

evidence

are

supported

by

Notably, the ALJ cites only to Dr. Garriga’s July 2009
statement and does not refer to the medical source statement
completed by Dr. Garriga in January 2008.
Inasmuch as the
limitations expressed in the January 2008 statement are the same as
or more severe than those expressed in the July 2009 statement, the
undersigned presumes that the ALJ would have discounted Dr.
Garriga’s January 2008 opinion for the same reasons set out above.
- 48 -

substantial evidence on the record, the ALJ’s failure to identify
the

weight

given

to

Dr.

Garriga’s

evidence

is

especially

significant here inasmuch as Dr. Garriga has been plaintiff’s
treating rheumatologist since 2003 and has observed firsthand the
objective signs and symptoms of plaintiff’s connective tissue
disease, her responses to treatment, and her continued subjective
complaints of severe pain.

To the extent some of Dr. Garriga’s

treatment notes indicate normal physical examination of joints and
muscles, Dr. Garriga noted on two occasions that

plaintiff’s

depression may exacerbate the severity of her symptoms.
did not acknowledge this.

The ALJ

The ALJ’s silence regarding the weight

given to Dr. Garriga’s opinion, coupled with other errors in the
written decision, creates uncertainty and casts doubt upon the
ALJ’s rationale for denying plaintiff’s claims.
540 F.3d at 879-80.

See Willcockson,

This uncertainty can be clarified on remand.

Id. at 881.
B.

Credibility Determination
Plaintiff claims that the ALJ erred in his credibility

assessment by failing to consider all factors relevant to making a
credibility determination and by mischaracterizing certain evidence
of record.
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

- 49 -

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.
Halverson v. Astrue, 600 F.3d 922, 931 (8th Cir. 2010); Polaski v.
Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984) (subsequent history
omitted).
factor

While an ALJ need not explicitly discuss each Polaski

in his decision, he nevertheless must acknowledge and

consider these factors before discounting a claimant’s subjective
complaints.

Wildman v. Astrue, 596 F.3d 959, 968 (8th Cir. 2010).

When, on judicial review, a plaintiff contends 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.” 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

then discredits a claimant’s complaints for good reason, the
decision should be upheld.

Hogan v. Apfel, 239 F.3d 958, 962 (8th

- 50 -

Cir. 2001).

The determination of a claimant’s credibility is for

the Commissioner, and not the Court, to make.

Tellez v. Barnhart,

403 F.3d 953, 957 (8th Cir. 2005); Pearsall, 274 F.3d at 1218.
In determining plaintiff’s credibility in the instant
cause, the ALJ noted the record to show plaintiff to have lupus,
“but [that] she has not experienced an exacerbation since March
2007,” and that, while hospitalized at that time, it was noted that
plaintiff had been noncompliant with her medications in the past.
(Tr. 16.)

While the ALJ properly noted that noncompliance with

prescribed medical treatment is inconsistent with a disabling
condition, the ALJ failed to consider the record evidence which
showed plaintiff’s purported noncompliance to be due in large part
to

the

debilitating

side

effects

caused

by

her

medications.

Indeed, a review of the record as a whole shows plaintiff to have
suffered significant side effects from her medications, including
nausea, headaches, chest pains, and dizziness, and that Dr. Garriga
reported plaintiff to experience side effects from her medications.
Dr. Garriga even determined on occasion to discontinue one or some
of plaintiff’s medications because of the side effects experienced
by plaintiff.

The ALJ’s decision, however, is devoid of any

analysis of these documented side effects.
The ALJ also discounted plaintiff’s subjective complaints
relating to her depression, finding plaintiff not to have sought
psychiatric treatment for the condition until June 2009, and that

- 51 -

plaintiff’s diagnosis and treatment at that time was based “solely
on her report[.]”
however,

shows

(Tr. 16.)

that

A review of the record as a whole,

plaintiff

began

exhibiting

symptoms

of

depression in April 2005, that a depressive condition was suspected
in January 2007, and that plaintiff was ultimately diagnosed with
depression in May 2007.

The record also shows that despite being

prescribed antidepressants since April 2005, plaintiff continued to
exhibit symptoms of depression.

In addition, the ALJ’s finding

that plaintiff’s psychiatric hospitalization was based solely on
plaintiff’s subjective reports ignores Dr. Garriga’s continuous
observations of plaintiff’s tearfulness and depressive symptoms,
Dr.

Garriga’s

written

recommendation

that

plaintiff

seek

psychiatric care and be admitted to a psychiatric hospital, and BJC
Behavioral Health’s recommendation that plaintiff be hospitalized
given the severity of plaintiff’s symptoms which included auditory
and visual hallucinations.

Where alleged inconsistencies upon

which an ALJ relies to discredit a claimant’s subjective complaints
are not supported by and indeed are contrary to the record, the
ALJ's ultimate conclusion that the claimant’s symptoms are less
severe than she claims is undermined.

Baumgarten v. Chater, 75

F.3d 366, 368-69 (8th Cir. 1996).
Further, the ALJ’s statement that the record failed to
establish that plaintiff’s depression would not be amenable to
treatment and medication likewise ignores plaintiff’s worsening

- 52 -

condition

despite

being

psychotic medications.

prescribed

antidepressant

and

anti-

Although the ALJ did not have before him

the Mental RFC Assessment completed by Counselor McBride in October
2009 wherein she stated that the several antidepressant and antipsychotic

medications

taken

by

plaintiff

did

not

help

her

condition, the ALJ nevertheless had before him numerous treatment
notes which showed

plaintiff’s condition not to improve with

medication and, indeed, that plaintiff continued to hear voices and
have visual hallucinations despite her treatment with Risperdal.
Finally,

the

ALJ

determined

to

discount

plaintiff’s

credibility by finding that she appeared to exaggerate all of her
limitations and appeared to be financially motivated to seek
disability benefits.

Other than his blanket statement finding

plaintiff to be exaggerating her symptoms, the ALJ cites to no
evidence supporting this statement.

A review of the record shows,

however, that plaintiff’s treating physician specifically found on
two separate occasions that plaintiff was not a malingerer.

As to

plaintiff’s financial motivation, the undersigned notes that the
Eighth Circuit has stated that

“all disability claimants are

financially

extent”

motivated

to

some

and

that,

therefore,

financial motivation should not be dispositive in assessing a
claimant’s credibility.
n.4 (8th Cir. 2002).

Ramirez v. Barnhart, 292 F.3d 576, 581-82

Instead, “a claimant’s financial motivation

may contribute to an adverse credibility determination when other

- 53 -

factors cast doubt upon the claimant’s credibility.”

Id.

Because

the other factors upon which the ALJ relied to cast doubt upon
plaintiff’s
plaintiff’s

credibility
possible

are

not

financial

supported

motivation

in

by

the

record,

seeking

benefits

cannot serve as a basis upon which to discredit her subjective
complaints.
In light of the above, it cannot be said that the ALJ
demonstrated in his written decision that he considered all of the
evidence relevant to plaintiff's complaints or that the evidence he
considered so contradicted plaintiff's subjective complaints that
her testimony could be discounted as not credible.
F.3d at 738-39.

Masterson, 363

Indeed, the ALJ’s discounting of plaintiff’s

complaints relating to her depression resulted in a credibility
analysis which failed to examine the possibility that plaintiff’s
mental impairment aggravated her perception of pain.

See Delrosa

v. Sullivan, 922 F.2d 480, 485-86 (8th Cir. 1991) (on remand, ALJ
advised to consider aggravating factor posed by possibility that
claimant’s perception of pain is exacerbated by psychological
impairment).

Accordingly, because the ALJ’s decision fails to

demonstrate that he considered all of the evidence 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.

- 54 -

C.

RFC Assessment
Where an ALJ errs in his determination to discredit a

claimant’s subjective complaints, the resulting RFC assessment is
called into question inasmuch as it does not include all of the
claimant’s limitations.

See Holmstrom v. Massanari, 270 F.3d 715,

722 (8th Cir. 2001).

Plaintiff also contends, however, that

without proper consideration given to the opinion evidence rendered
by Dr. Rosso and Dr. Garriga, there was no medical evidence upon
which the ALJ could base his RFC determination.
Residual functional capacity is the most a claimant can
do despite her physical or mental limitations. Masterson, 363 F.3d
at 737.

The ALJ bears the primary responsibility for assessing a

claimant’s RFC based on all relevant, credible evidence in the
record, including medical records, the observations of treating
physicians and others, and the claimant’s own description of her
symptoms and limitations.

Goff v. Barnhart, 421 F.3d 785, 793 (8th

Cir. 2005); 20 C.F.R. §§ 404.1545(a), 416.945(a).

The RFC “‘is a

function-by-function assessment based upon all of the relevant
evidence

of

an

individual's

ability

to

do

work-related

activities[.]’”

Roberson v. Astrue, 481 F.3d 1020, 1023 (8th Cir.

2007) (quoting

S.S.R. 96-8p, 1996 WL 374184, at *3 (Soc. Sec.

Admin. July 2, 1996)).

A claimant’s RFC is a medical question,

however, and some medical evidence must support the ALJ’s RFC
determination.

Krogmeier v. Barnhart, 294 F.3d 1019, 1023 (8th

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Cir. 2002); Hutsell v. Massanari, 259 F.3d 707, 711-12 (8th Cir.
2001); Lauer v. Apfel, 245 F.3d 700, 703-04 (8th Cir. 2001).

The

ALJ is “required to consider at least some supporting evidence from
a [medical professional]” and should therefore obtain medical
evidence that addresses the claimant’s ability to function in the
Hutsell, 259 F.3d at 712 (internal quotation marks and

workplace.

citation omitted).

An ALJ’s RFC assessment which is not properly

informed and supported by some medical evidence in the record
cannot stand.

Id.

An RFC checklist completed by a non-treating,

non-examining physician who has merely reviewed reports is not
medical evidence as to how the claimant’s impairments affect her
current ability

to function and thus cannot alone constitute

substantial evidence to support an ALJ’s RFC assessment.

See

Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000); Nunn v.
Heckler, 732 F.2d 645, 649 (8th Cir. 1984).
As with the weight accorded to the examining and treating
physicians’ opinions in this cause, the ALJ’s decision is unclear
as to what medical evidence he relied upon to determine plaintiff’s
RFC.

Other than Dr. Garriga’s opinion evidence and the RFC

checklist completed by a non-examining consultant, there is no
evidence describing plaintiff’s physical functional limitations.
Although

the

RFC

checklist

completed

by

the

non-examining

consultant is consistent with the ALJ’s finding that plaintiff can
engage in light work with limitations, the ALJ does not acknowledge

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in his decision that he relied on such a checklist to support his
determination.

Nor

does

the

ALJ

discuss

whether

or

why

he

determined to accord such checklist opinion greater weight than
that accorded to plaintiff’s treating physician.
Inasmuch

as

the

Commissioner

will

be

given

the

opportunity upon remand to clarify the weight given to the opinion
evidence of Dr. Rosso and Dr. Garriga, the Commissioner will
likewise be given the opportunity to identify and clarify the
medical evidence of record which supports his RFC determination.
In

addition,

upon

remand,

the

Commissioner

will

have

the

opportunity to review the additional treatment notes from Dr.
Garriga and Counselor McBride’s Mental RFC Assessment in the first
instance and determine the appropriate weight to be given thereto.

Therefore,

for

all

of

the

foregoing

reasons,

the

Commissioner’s adverse decision is not based upon substantial
evidence on the record as a whole and the cause should be remanded
to the Commissioner for further consideration. Because the current
record does not conclusively demonstrate that plaintiff is entitled
to benefits, it would be inappropriate for the Court to award
plaintiff such benefits at this time.
Accordingly,
IT

IS

HEREBY

Commissioner

is

REVERSED

ORDERED
and

that

this

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the

cause

is

decision
remanded

of

the

to

the

Commissioner for further proceedings.
Judgment shall be entered accordingly.

UNITED STATES MAGISTRATE JUDGE

Dated this

7th

day of September, 2011.

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