Scott v. Social Security Administration

Filing 19

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED and the case is REMANDED for further consideration consistent with this Memorandum and Order. A separate Judgment shall accompany this Memorandum and Order Signed by District Judge Audrey G. Fleissig on 9/28/12. (JWJ)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CARRIE B. SCOTT,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Defendant.

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Case No. 4:11CV00925 AGF

MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the
Commissioner’s final decision denying Carrie Scott’s application for a period of disability and
Disability Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434,
and Supplemental Security Income (“SSI”) under Title XVI of the Act, id., § 1381-1383f. For
the reasons set forth below, the decision of the ALJ shall be reversed and the case remanded for
further consideration and, if needed, further development of the record.
Plaintiff, who was born on July 3, 1955, filed an application for disability benefits on
November 30, 2005, alleging a disability onset date on March 15, 2005. The application was
denied at the initial administrative level on May 30, 2006, and Plaintiff did not seek further
review. (Tr. 112, 115.) On October 3, 2007, Plaintiff protectively filed the application that is the
subject of this action, alleging a disability onset date of May 18, 2007, due to depression,
anxiety, and pain in her neck, shoulder, lower back, right forearm and hand, and right hip and
leg. After an initial denial of benefits, Plaintiff filed a timely request for a hearing before an
Administrative Law Judge (“ALJ”), and a hearing was held on July 15, 2009, at which Plaintiff

was represented by counsel. On October 9, 2009, the ALJ issued a decision finding that Plaintiff
was not disabled. On April 12, 2011, after considering additional evidence submitted by
Plaintiff, the Appeals Council of the Social Security Administration denied Plaintiff’s request for
further review. Thus, the ALJ’s decision stands as the Commissioner’s final decision. Plaintiff
filed this action for judicial review on May 23, 2011.
I.
A.

ADMINISTRATIVE RECORD

Work History
In her application for benefits, Plaintiff represented that she worked full-time doing

billing and collections for various employers, from 1992 to 1996, 1996 to1997, 1997 to 1999,
1999 to 2004, and 2006 to 2007, and then part-time as a receptionist at VMI, a retail
establishment, for two months in 2007. (Tr. 146-56.) Plaintiff’s earnings fluctuated from
approximately $15,000 in 1997, to a maximum of approximately $30,000 in 2003, to
approximately $6,000 in 2004, with minimal earnings thereafter. (Tr. 113.)
B.

Hearing of July 15, 2009
1.

Plaintiff’s Testimony (Tr. 25-49)

Plaintiff testified she was not married, but had a boyfriend and one living adult child.
She testified that she had a high school diploma. Plaintiff stated she lived alone in a one-story
ranch-style house with a washer and dryer in the basement. She said she had no household
income except food stamps and she received medical care from a free clinic.
Plaintiff testified she last worked as a part-time receptionist for an audio and video
company briefly in 2007. Her duties included answering the phone, filing, handling purchase
orders, and contacting salespeople. Plaintiff said she was unable to perform her work
responsibilities because she had difficulty stooping, getting down and back up, and sitting for
2

long periods of time. She testified she was “let go,” because, in addition to her inability to do the
job, she needed three months off for right arm surgery.
Before the receptionist job in 2007, Plaintiff worked in billing and collections for
approximately six different companies over fifteen years. She worked full-time for Precision
Technologies for two or three months. She testified she was “let go” because she completed
seventy percent production and ninety percent production was required. Before Precision
Technologies, she worked for another billing and collection company for between one and two
months. She said she was also “let go” from that position because she could not meet production
numbers since her depression affected her ability to concentrate. She worked at two collection
agencies for two years each and one for five years. With the exception of the jobs she left for
health reasons, Plaintiff stated she left each job for a better position at a new company. With the
exception of one job, she said the most she ever had to lift was about ten pounds.
Plaintiff used a wheelchair at the hearing because she fell and broke her left ankle during
a walk in the park on May 9, 2009. She had an eight-inch plate, screws, and pins on her left
foot’s left side, and three pins on the right side. She stated doctors replaced her cast with a boot
and advised her to be very careful with her left leg. She could use a walker for short distances at
home; however, she had to use a wheelchair outside of her home. Plaintiff testified she expected
to start physical therapy upon her doctor’s approval.
Next, Plaintiff testified that bone spurs in her tailbone, arthritis, bone spurs in the rotator
cuff muscle of her right arm, a bulging disc in her back, spurs in her neck, and depression
constituted the medical conditions preventing her from working. Plaintiff testified that the bone
spurs and arthritis caused chronic pain in her tailbone and pain down both of her legs, and her

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doctors told her this condition might require surgery in the future. She testified she took
Oxycodone and Lyrica for this pain.
Plaintiff reported a bone spur had cut through her right rotator cuff muscles, which
required reparative surgery. She estimated that the recovery period from the surgery lasted four
months. Her doctor instructed her not to lift anything over ten pounds with her right arm.
Plaintiff testified she lost 30 percent use of her right arm and struggled to hold things. She
acknowledged using her right arm when she was sworn in at the hearing. Plaintiff stated arthritis
caused pain in her knees, but acknowledged her knee x-rays were negative.
With regard to the bulging disc in the lower left side of her back, Plaintiff stated she had
three injections in her left side to manage the pain from the bulging disc. She also testified that
she had three injections in her neck. She stated that she had spurs and malformed discs in her
neck, but had yet to receive the results of a recent MRI to confirm the diagnosis. The ALJ
mentioned that the preliminary diagnosis was mild cervical spondylosis.
Plaintiff testified her depression stemmed from childhood sexual abuse and her son’s
death in 1997. She said she sought counseling in 2005 or 2006 on a weekly basis with social
worker Esther Scharf. She also saw several other rotating therapists. Although she was being
treated for depression, she stated that she experienced difficulty concentrating and remembering
“certain procedures” in 2007. Plaintiff stated she took medications, which caused dizziness,
lightheadedness, and drowsiness. Plaintiff stated that she worked out the grief of her son’s death,
but she did not have her overall depression “completely under control.” She said she felt like a
“misfit” and her family added to her problems; therefore, she avoided them.
Plaintiff testified she had not smoked for the past five years. She drank “very little”
alcohol, and she did not use illegal drugs. She stated she had a driver’s license and drove before

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she broke her ankle. She also stated she cooked and loaded the dishwasher. Before her accident,
she did laundry and vacuumed; her boyfriend mowed her lawn. Also before the accident, she
could stand or sit for about four hours, and walk between an hour and an hour and a half.
Plaintiff also testified she could lift ten pounds frequently and a maximum of 15 pounds. She
stated she sometimes woke up in the middle of the night and would dust or do the dishes.
Plaintiff stated she spent approximately six daylight hours each day lying down due to
depression, medication, and family problems. She said when she was working at her part time
job at VMI, stress and back and neck pain caused her to go straight to bed. Plaintiff stated she
could follow the rules at work, but had difficulty remembering procedures, meeting production,
and concentrating due to depression, medication, and “racing thoughts.” Plaintiff testified she
would often leave her work station and go to cry in the restroom.
2.

Vocational Expert Testimony (Tr. 51-57 )

The VE testified that all of Plaintiff’s past work was generally classified as skilled or
semi-skilled sedentary or light work. He testified that Plaintiff’s clerical skills could be used in
other jobs. The ALJ presented two hypotheticals to the VE. The first hypothetical to the VE
provided:
[A]ssume a hypothetical individual [with] the Claimant’s education, training, and
work experience. Further assume the individual can do light work1 with the
following limitations. Reaching in all directions is limited to frequently with the
right arm. She cannot lift with her right arm over her head. She can understand,
1

“Light work” is defined in 20 C.F.R. § 404.1567(b) as work that involves lifting no more than
20 pounds at a time with frequent lifting or carrying of up to ten pounds; and that might require a
good deal of walking or standing, sitting most of the time, and some pushing and pulling of arm
or leg controls. Social Security Ruling (SSR) 83-10, 1983 WL 31251, at *6, elaborates that the
full range of light work requires standing or walking, off and on, for a total of approximately six
hours of an eight hour work day, while sitting may occur intermittently during the remaining
time; that the lifting requirement for the majority of light jobs can be accomplished with
occasional, rather than frequent, stooping; and that many unskilled light jobs are performed
primarily in one location, with the ability to stand being more critical than the ability to walk.
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remember, and carry out at least simple instructions, non-detailed tasks. She can
demonstrate adequate judgment to make simple, work-related decisions. And she
can perform work at a normal pace without production quotas. Would that
individual be able to perform past work?
(Tr. 52-53.)
The VE testified that the production quota limitation would preclude Plaintiff’s
past relevant work but that the hypothetical person could “perform work at a normal pace
without production quotas in terms of transferring skills.” The VE identified the light
jobs of school bus monitor, sandwich board carrier, and parking lot attendant as jobs that
the individual would be able to perform. The VE testified that there were 630 school bus
monitor jobs, 670 sandwich board carrier jobs, and 1,290 parking lot attendant jobs in the
St. Louis metropolitan area.
The ALJ then posed a second hypothetical with all of the factors from the first
hypothetical adding the condition that the individual would have up to three absences per
month due to a mental condition. The VE testified that this would preclude competitive
employment. Upon questioning by Plaintiff’s counsel, the VE testified that if the
individual in the hypothetical was markedly impaired in her ability to complete even
simple tasks in a timely manner over a sustained period of time due to a combination of
depression and chronic pain, the individual would not be capable of competitive
employment, including the jobs identified by the VE. The VE also testified that if the
individual had poor concentration due to racing thoughts, poor sleep, chronic severe pain,
and multiple severe stressors, the individual would not be capable of maintaining
competitive employment.

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C.

Medical Records
Medical records and opinions that predate the alleged onset of disability are relevant as

background information. See e.g., Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1165
(9th Cir. 2008). In 1992, Plaintiff had thyroid surgery in which 95% of her thyroid was
removed. The results of an MRI on October 7, 2004, were consistent with tendonosis in the
supraspinatus2 tendon. Plaintiff did not have a full rotator cuff tear, there was no impingement,
and the visualized marrow was “essentially unremarkable.” On January 28, 2005, Plaintiff was
seen by John Lautenschlager, M.D., at North County Community Health Center (“NCCHC”).
Plaintiff complained of severe right shoulder pain, spinal arthritis, and bone spurs that had
affected her for three years. She reported she was interested in grief counseling due to her eldest
son’s death (in 1997). Plaintiff described her depression as “feeling sad and nervous.” She
reported her depression was related to prolonged grief, difficulty sleeping, financial difficulties,
other systemic illness, and recent changes in life. Plaintiff denied suicidal ideation. Dr.
Lautenschlager diagnosed Plaintiff with depressive disorder, pain in joint involving shoulder
region, and postsurgical hypothyroidism. (Tr. 209-11.)
On February 11, 2005, Dr. Lautenschlager examined Plaintiff regarding her complaints of
depression, thyroid problems, and right shoulder pain. Plaintiff reported that medication was
helping her pain and that she was sleeping better. Dr. Lautenschlager diagnosed postsurgical
hypothyroidism, pain in joint involving shoulder region, and depressive disorder not otherwise
classified (“NOS”). He noted that she did not want to see a social worker at that time.
Amitriptyline was ordered for nerve pain and depression. (Tr. 206-08.)

2

Supraspinatus is the intrinsic muscle of the shoulder joint, the tendon of which contributes to
the rotator cuff. Stedman’s Medical Dictionary 1157 (27th edition 2000).
7

On February 23, 2005, Plaintiff visited Dr. Lautenschlager to review recent blood test
results. Plaintiff reported feeling much better and sleeping at night, and had started physical
therapy. Plaintiff indicated she still had depression and shoulder pain. A physical examination
indicated Plaintiff had a normal gait and posture and was cooperative, but depressed. Dr.
Lautenschlager continued Amitriptyline. (Tr. 204-05.)
On March 24, 2005, Plaintiff visited Dr. Lautenschlager complaining of joint pain and
depression. Plaintiff reported that her pain control had improved, but worsened with weather
changes. Dr. Lautenschlager assessed Plaintiff with depressive disorder, postsurgical
hypothyroidism, and right-shoulder pain. He continued Amitriptyline, and added
Cyclobenzaprine, Tramadol, and Piroxicam, and scheduled Plaintiff for a two-month follow-up.
(Tr. 201-03.)
On July 5, 2005, Dr. Lautenschlager examined Plaintiff regarding her complaints about a
variety of side effects from the medication she was taking, including swollen fingers in the
morning, dry mouth, constipation, drowsiness, gas, indigestion, heartburn, dizziness, headaches,
ringing in the ears, blurred vision, weight gain, and memory loss. Dr. Lautenschlager diagnosed
shoulder pain, postsurgical hypothyroidism, depressive disorder, tobacco use disorder, atopic
dermatitis, pain in the hand, and constipation. (Tr. 197-98.)
On September 26, 2005, Plaintiff visited Virginia Reddy, M.D., an arthritis/rheumatology
specialist, upon referral from Dr. Lautenschlager. Dr. Reddy diagnosed carpal tunnel syndrome,
degenerative joint disease at multiple sites, and ulnar neuropathy. She prescribed a nerve
conduction study of Plaintiff’s right arm. (Tr. 188-90.)
On November 28, 2005, Dr. Lautenschlager examined Plaintiff for joint pain in her

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right hand. Plaintiff reported having difficulty typing at her normal rate, because of symptoms in
her right hand and arm. Plaintiff indicated her other symptoms had improved. She also reported
tricyclic therapy presented “some disturbing side effects.” Plaintiff reported that morning
stiffness and stiffness after use of her hands associated with swelling still persisted. Dr.
Lautenschlager diagnosed Plaintiff with shoulder and hand pain, postsurgical hypothyroidism,
and paresthesias3 in her right hand. (Tr. 194-96.)
On November 28, 2005, Dr. Lautenschlager wrote a letter, addressed “To Whom it May
Concern,” indicating that he recommended that Plaintiff apply for temporary disability status
because of her medical condition, which “caused severe limitation in performance of her work
and led to her need for frequent visits to medical care professionals.” Dr. Lautenschlager
indicated that Plaintiff’s long-term prognosis was “unknown.” (Tr. 187.)
On December 11, 2005, Plaintiff completed a pain questionnaire for the state disability
agency. She reported she suffered from daily and weather-dependent pain in her right shoulder,
lower-back, tailbone, joints and fingers, and across the back of her neck and shoulders. She
reported the pain began three years earlier and had grown worse. Plaintiff indicated she noticed
deterioration in her typing skills from 70 words per minute to 38 words per minute. She also
indicated the pain prevented her from sitting for long periods of time, standing, typing, writing,
and spending long amounts of time in front of the computer. (Tr. 193.)
On February 17, 2006, Plaintiff visited Dr. Lautenschlager regarding her complaints of
joint pain, depression, daily swelling in her right hand, constipation, and arthritis. Plaintiff
reported her Tramadol prescription was no longer adequately controlling the pain. Plaintiff also
reported she had gotten a job, but could not keep it. Dr. Lautenschlager diagnosed postsurgical
3

Paresthesias is an abnormal sensation such as burning, prickling, tickling, or tingling.
Stedman’s Medical Dictionary 1316 (27th ed., 2000).
9

hypothyroidism, joint pain in the right hand and shoulder, constipation, and depressive disorder.
He prescribed medication and referred Plaintiff to a rheumatologist. (Tr. 214-17.)
On February 24, 2006, Dr. Lautenschlager diagnosed Plaintiff with joint pain in her
shoulder and hand, depressive disorder, constipation, tobacco use disorder, and postsurgical
hypothyroidism. Dr. Lautenschlager noted Plaintiff had not gone for a nerve study and referred
her again to a neurologist for this study and for advice for further evaluation. (Tr. 220-22.)
On March 9, 2006, psychologist Thomas Davant Johns, Ph.D., examined Plaintiff and
prepared a psychological evaluation. Dr. Johns diagnosed Plaintiff with major depressive
disorder, single episode, with some benefit from treatment; and pain disorder associated with
psychological factors and general medical conditions. Dr. Johns opined that Plaintiff’s “ability
to complete even simple tasks” efficiently over a sustained period of time was “markedly
impaired” due to depression and chronic pain. Dr. Johns assessed Plaintiff with a Global
Assessment Functioning Score (“GAF”) of 55.4 In his prognosis, Dr. Johns noted Plaintiff had
indicated she was not presently being treated psychiatrically for depression and had not sought
treatment in six months. Dr. Johns opined that Plaintiff’s prognosis was “guarded” and might be
“somewhat better” if she had psychiatric treatment for depression as well as treatment for
chronic pain. (Tr. 181-86.)
On June 23, 2006, Plaintiff saw Dr. Lautenschlager for a routine visit. She complained of
chronic pain and depression. She reported she was unable to hold two jobs, and had not been
taking her Amitriptyline on an irregular basis because she thought it was a regular sleeping pill.

4

A GAF reports the clinician’s judgment of an individual’s overall ability to function. On the
GAF scale, a score from 51 to 60 represents 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). American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders 32-34 (4th ed. 2000).
10

Plaintiff also reported she did not get the neurology tests done because she did not know she had
to pay $75.00 “up front.” (Tr. 281.)
On August 3, 2006, Esther Scharf, a licensed clinical social worker with Jewish Family
and Children’s Services (“JF&CS”), completed an initial counseling assessment regarding
Plaintiff. Ms. Scharf diagnosed Plaintiff with depression NOS and a GAF score of 50. (Tr. 50507.)
On December 21, 2006, Plaintiff was seen for follow-up regarding her right shoulder.
She reported her pain level was “ten out of ten” and was given a prescription for Darvocet. (Tr.
223.)
On February 12, 2007, Plaintiff visited JF&CF for mental health treatment. She reported
the Cymbalta had helped since her last visit and her depression had decreased from a ten out of
ten to a seven out of ten, with ten being the worst. (Tr. 296.)
On February 7, 2007, an MRI of Plaintiff’s right shoulder showed an intrasubstance tear
of the supraspinatus tendon at its attachment with the humerus, an impingement upon the
supraspinatus muscle that was secondary to degenerative changes within the joint, and a small
para-labral cyst. (Tr. 179.)
At a March 12, 2007 visit to JF&CS Plaintiff reported she was not sleeping well because
of back spasms and rotator cuff pain. She again rated her depression as a seven out of ten. (Tr.
295.)
On May 11, 2007, Plaintiff was examined by Dr. Lyndon Gross at NCCHC for an
evaluation of her right shoulder. Dr. Gross diagnosed right shoulder cuff tendinitis and an
impingement, noted nonoperative management was failing to help, and recommended surgical
intervention. (Tr. 250-51.) On May 21, 2007, which is after Plaintiff’s current alleged onset

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date, Plaintiff visited Dr. Lautenschlager complaining of severe pain in her tailbone and lower
back, depression, and joint pain. She also requested that she be tested for diabetes because she
was healing slowly and bruising easily. Dr. Lautenschlager diagnosed pain in her shoulder,
depressive disorder, tobacco use disorder, and hypothyroidism. (Tr. 269-70.)
On May 22, 2007, Dr. Gross performed right shoulder arthroscopic surgery, repair of
anterior superior labral tear, and arthroscopic subacromial decompression. (Tr. 238-39.) At a
June 8, 2007 follow-up examination, Dr. Gross told Plaintiff to discontinue use of a sling and
“work aggressively on regaining range of motion and strength of her shoulder” in physical
therapy. (Tr. 249.) At a July 6, 2007 follow-up appointment, Dr. Gross noted Plaintiff was
progressing after surgery. Plaintiff reported soreness in her shoulder that Dr. Gross noted may
be related to her activities in physical therapy. Plaintiff also reported numbness in her fingers
and Dr. Gross determined that this should be observed for six weeks and then evaluated further if
it became more symptomatic. (Tr. 247-48.)
On July 24, 2007, Plaintiff saw Shirley Marshall, M.D., at NCCHC, regarding complaints
of neck, back, and right shoulder pain. Dr. Marshall observed shoulder pain with range of
motion, pain with walking, and a slow gait. She diagnosed joint pain involving the shoulder
region and postsurgical hypothyroidism. Dr. Marshall discontinued Plaintiff’s prescription for
Oxycodone-acetaminophen, replaced Gabapentin with Lyrica for chronic pain, and prescribed
Oxycodone HCI. (Tr. 359-61.)
On July 26, 2007, Plaintiff visited JF&CS. She reported that Cymbalta helped with her
depression, but she felt Ambien was not working as well and requested an alternative
medication. Her prescriptions for Cymbalta and Ambien were continued and a prescription for
Trazadone was added. (Tr. 294.)

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On her August 16, 2007 visit to JF&CS, Plaintiff reported that she felt “antsy” and was
“tired of fighting.” Plaintiff complained that she was about to lose her home and was having
crying spells and insomnia. Plaintiff’s Cymbalta was discontinued and Celexa and Klonopin
were prescribed. Plaintiff was advised to call 911 or go to the nearest hospital for safety
purposes if she was unable to contact JF&CS. (Tr. 292.)
On August 17, 2007, Plaintiff saw Dr. Gross for follow-up regarding her right shoulder
and numbness in her right hand. Plaintiff reported improvement in her shoulder, but stated she
still experienced numbness in two of her fingers. Dr. Gross recommended an electromyogram
(“EMG”) to rule out any cervical radiculopathy, peripheral neuropathy, or nerve entrapment. He
noted Plaintiff needed no further management at that point with regards to her shoulder. (Tr.
245-46.)
On August 24, 2007, Plaintiff saw Neesha Kurian, M.D., at NCCHC with complaints of
depression and back, neck, and shoulder pain. Plaintiff reported that she was off Cymbalta due
to its expense and did not feel her other medication (she did not know the name) was helping.
Dr. Kurian observed that Plaintiff was depressed and in acute distress secondary to pain elicited
by movement. She diagnosed joint pain involving the right shoulder region, and depressive
disorder. Dr. Kurian prescribed Oxycodone HCI for Plaintiff’s pain. (Tr. 364-67.)
X-rays dated September 19, 2007, showed degenerative disease of the lumbar spine. (Tr.
288.) On September 21, 2007, Plaintiff visited Dr. Gross and complained of shoulder pain and
numbness in two fingers. Dr. Gross noted that Plaintiff’s shoulder had improved overall and
noted the results of Plaintiff’s EMG study indicated possible positive lower cervical
radiculopathy. Gross referred Plaintiff for an orthopedic evaluation. (Tr. 241-42.)

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On October 12, 2007, Plaintiff went for an annual examination with Dr. Kurian. Plaintiff
reported that she had chronic pain, headaches, hot flashes, leg pain, and mood swings. Dr.
Kurian diagnosed constipation, mixed hyperlipidemia, and esophageal reflux, and prescribed
medication for each condition. (Tr. 374-78.)
On October 18, 2007, Plaintiff visited JF&CS and reported there was a family feud and
her father was now in a nursing home after being hospitalized with pneumonia. She also
reported her depression was about the same with more ups and downs. Plaintiff’s Celexa was
increased and her Klonopin was continued. (Tr. 290.) On November 8, 2007, Plaintiff reported
her depression was about the same and she was sleeping well. She also reported she was unsure
whether her medications were working. Her prescriptions were continued. (Tr. 339.)
On November 12, 2007, Plaintiff visited Dr. Kurian for evaluation regarding the pain in
her neck and right arm. Upon examination of the cervical spine, Dr. Kurian found that Plaintiff
was not showing positive physical examination findings consistent with radiculopathy. Dr.
Kurian noted Plaintiff’s x-rays demonstrated “reasonably age-appropriate degenerative changes,”
and diagnosed Plaintiff with mechanical neck pain and history of mild cervical radiculopathy
into the right upper extremity. Dr. Kurian recommended cervical traction, and prescribed
Daypro. (Tr. 329-31.)
On November 15, 2007, Ms. Scharf completed a quarterly assessment of Plaintiff. Ms.
Scharf noted Plaintiff reported her son was living with his father and not speaking to her because
of her continuing relationship with an abusive man. Plaintiff told Ms. Scharf she was going to
MERS four days per week looking for a job. Ms. Scharf reported depression, anxiety,
difficulties with activities of daily living, and inability to work. She wrote that Plaintiff was
“working through many traumatic memories including sexual abuse, and death of a son.” Ms.

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Scharf diagnosed depressive disorder NOS and a GAF of 52. Ms. Scharf noted that Plaintiff was
currently prescribed Levothyroxine, Clonazapam, Citalopram, Lyrica, Prilosec, Simvastatin,
Buspar, Enulose Syrup, Oxaprozin, Lyrica, and Celexa. (Tr. 298-300.)
On November 28, 2007, Plaintiff visited St. Louis Connect Care with complaints of lower
back and tail bone pain. Plaintiff reported that she was not taking any pain medication, but
stated she was in constant pain and it was hard to get up after sitting. Plaintiff also complained
of sharp pains down her legs and that it was hard for her to sleep. (Tr. 323.)
On December 4, 2007, non-examining state agency consulting psychologist Kyle
DeVore, Ph.D., completed a Psychiatric Review Technique Form and a mental Residual
Functional Capacity (“RFC”) assessment based upon his review of JF&CS records. DeVore
diagnosed Plaintiff with depressive syndrome characterized by anhedonia or pervasive loss of
interest in almost all activities, sleep disturbance, psychomotor agitation or retardation, and
difficulty concentrating or thinking. Dr. DeVore indicated in check-box format that Plaintiff had
mild limitation in her ability to maintain concentration, persistence, or pace; and moderate
limitation in activities of daily living and maintaining social functioning. Dr. DeVore opined
that Plaintiff was “markedly limited” in her ability to understand, remember, and carry out
detailed instructions. Additionally, Dr. DeVore found she was “moderately limited” in her
ability to work in coordination with or proximity to others without being distracted by them. She
was also “moderately limited” in three of the five areas of social interaction including the
following: (1) interacting appropriately with the general public; (2) accepting instructions and
responding appropriately to criticism from supervisors; and (3) getting along with coworkers or
peers without distracting them or exhibiting behavioral extremes. Further, Plaintiff was
“moderately limited” in her ability to both respond appropriately to changes in the work setting

15

and to set realistic goals or make plans independently of others. Dr. DeVore concluded Plaintiff
could follow simple instructions and make basic work-related decisions. Further, he concluded,
she could relate adequately to peers and supervisors and adapt to routine changes in a work
environment. (Tr. 303-16.)
On December 5, 2007, Suzanne Page, a non-medical state agency consultant, completed a
physical RFC assessment regarding Plaintiff. Page opined that Plaintiff had no limitations
pushing or pulling, could occasionally lift 20 pounds, frequently lift ten pounds, and could stand,
sit, or walk about six hours in an eight-hour workday with normal breaks. Page found that
Plaintiff had no established postural, visual, communicative, or environmental limitations. (Tr.
317-22.)
On December 31, 2007, Plaintiff visited JF&CS. Plaintiff reported that her depression
was worse, because of the holidays, but her eating and sleeping habits were fair. Plaintiff’s
prescriptions were adjusted and continued. (Tr. 340.)
On January 11, 2008, Plaintiff visited Dr. Kurian for a follow-up regarding X-rays taken
at her last visit. Dr. Kurian noted Plaintiff had full range of motion in all joints, but that range of
motion in her spine was decreased and movement was painful. Dr. Kurian assessed Plaintiff
with pain in joint involving shoulder region, mixed hyperlipidemia, esophageal reflux,
constipation, depressive disorder not elsewhere classified, postsurgical hypothyroidism, and
degeneration of cervical intervertebral disc. (Tr. 387-90.)
On January 14, 2008, Plaintiff saw orthopedic surgeon Howard Place, M.D., for a followup regarding her upper extremity symptoms. Plaintiff reported improvement since her last visit,
though she continued to have pain in her upper neck and between her shoulder blades. Dr. Place
found no evidence of myelopathy. He diagnosed (1) cervical spondylosis with improvement of

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upper extremity radiculopathy, (2) status post right shoulder rotator cuff repair with some
residual symptoms that were “certainly not severe”; and (3) right dorsal forearm pain most likely
related to posterior interosseous nerve irritation in the dorsal forearm. Dr. Place noted that
Plaintiff would continue to take Daypro. X-rays of Plaintiff’s cervical spine showed
spondylosis, with moderate degenerate change from the exam done on November 12, 2007.
There was no evidence of fracture or subluxation. (Tr. 333-35.)
At a January 17, 2008 visit to JF&CS Plaintiff reported her depression was at about the
same level. She reported that she took her medications regularly, but had not noticed much of a
difference. Plaintiff reported her sleep and appetite were poor. Wellbutrin was added to
Plaintiff’s prescriptions. (Tr. 341.) On February 14, 2008, Plaintiff reported she did not think
she was getting better and her anxiety and depression were about the same. Plaintiff’s
prescriptions were adjusted slightly. (Tr. 342.)
On February 26, 2008, Plaintiff was given a lumbar epidural steroid injection at L5-S1
under fluoroscopy. Plaintiff was undergoing the procedure for low back pain with significant
right lower extremity pain and parasthesias. Plaintiff was discharged in stable condition and
advised the procedure may be repeated four weeks later. (Tr. 336.)
On March 13, 2008, Plaintiff visited JF&CS and reported she was only sleeping four
hours at night, but her therapy was going well. Plaintiff’s prescriptions remained the same. (Tr.
343.)
On April 21, 2008, Plaintiff was given a lumbar transforaminal epidural steroid injection
(selective nerve root injection) at bilateral L3-4 and L4-5 for ongoing bilateral lower extremity
pain. There were no apparent complications and Plaintiff was referred to physical therapy. (Tr.
337-38.)

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On May 1, 2008, Plaintiff visited JF&CS and reported she was still having issues with
her son and other family members. Plaintiff’s medications were continued. (Tr. 344.)
On May 9, 2008, Plaintiff visited Dr. Kurian for a follow-up appointment. Plaintiff
reported she was taking pain medication every six hours for pain in her back, neck, elbow, and
wrist. (Tr. 398-400.)
On May 22, 2008, Plaintiff called JF&CS to request medication to “calm her nerves.”
Plaintiff reported her father had passed away and she was afraid to attend his funeral and “face
her demons.” Plaintiff’s prescription for Klonopin was increased. (Tr. 346.) On June 19, 2008,
Plaintiff reported that she was feeling less anxious, but in general her depression was still the
same. Plaintiff’s medications were adjusted slightly. (Tr. 347.)
On August 4, 2008, Plaintiff visited Dr. Kurian and reported her back pain had worsened
the last few months and the Darvocet was not giving her any relief. She also reported the
injection she received previously helped for approximately two weeks. (Tr. 403.)
On September 4, 2008, Ms. Scharf completed a Mental RFC Questionnaire regarding
Plaintiff. Ms. Scharf indicated that she met with Plaintiff weekly from July 27, 2006, to the date
the questionnaire was completed. Ms. Scharf assessed Plaintiff with a GAF of 54. Ms. Scharf
noted that Plaintiff had fifteen prescriptions for medication, with the following possible side
effects: lightheadedness, upset stomach, insomnia, dizziness, drowsiness, fatigue, and poor
concentration. Ms. Scharf indicated Plaintiff could not complete a normal work day and work
week without interruptions from psychologically based symptoms; perform at a consistent pace
without an unreasonable number and length of rest periods; or accept instructions and respond
appropriately to criticism from supervisors. Ms. Scharf also indicated that Plaintiff could not
independently, appropriately, or effectively and on a sustained basis (1) remember work related

18

procedures, (2) maintain attention for a two-hour segment, (3) sustain an ordinary routine
without special supervision, (4) make simple work related decisions, or (5) deal with normal
work stress. Ms. Scharf noted Plaintiff could not deal with stress of semiskilled or skilled work
in a regular work setting, and Plaintiff could not satisfactorily understand and remember detailed
directions, carry out detailed directions, or set realistic goals or make plans independently of
others, appropriately, effectively on a sustained basis in a regular work setting. Ms. Scharf also
noted Plaintiff would be unable to interact appropriately with the general public, travel in
unfamiliar places, or use public transportation. Ms. Scharf opined Plaintiff would have to miss
three days of work per month due to her impairments or treatments. Ms. Scharf indicated
Plaintiff was not a malingerer, and assessed Plaintiff would be unable to sustain work level of
energy and mood now or in the future. (Tr. 348-52.)
On November 13, 2008, Ms. Scharf completed a semi-annual assessment regarding
Plaintiff. Ms. Scharf diagnosed Plaintiff with major depression disorder and generalized anxiety
disorder with a GAF of 54. Ms. Scharf indicated Plaintiff had chronic mental illness and poor
quality of life. Ms. Scharf noted Plaintiff had ten current prescriptions (Levothyroxine,
Clonazapam, Citalopram, Lyrica, Prilosec, Simvastatin, Buspar, Enulose Syrup, Baclofen, and
Oxycodone). (Tr. 455-57.)
On December 16, 2008, Plaintiff visited Dr. Kurian and reported that she needed
medication refills and complained of right arm pain and knee pain, which Plaintiff said was a ten
out of ten. Dr. Kurian determined Plaintiff’s range of motion was decreased in all joints and all
movements were painful. Dr. Kurian diagnosed Plaintiff with pain in joint involving pelvic
region and thigh, degeneration of cervical intervertebral disc, mixed hyperlipidemia, postsurgical
hypothyroidism, and esophageal reflux. Dr. Kurian encouraged Plaintiff to do regular physical

19

therapy exercises especially during the winter and referred her to an orthopedic specialist. (Tr.
477-79.)
On January 16, 2009, Plaintiff visited JF&CS, reporting her depression was the same, but
she was hurting because it was cold outside. Plaintiff denied any suicidal or homicidal ideation.
She reported that her medications were working for her and she did not want any changes.
Plaintiff also indicated her sleep and energy were “ok” most days. Current medications were
continued. (Tr. 458.) On February 27, 2009, Plaintiff complained of frequent crying spells and
insomnia. She reported her back pain was intermittent and her energy and concentration were
okay. Current medications were again continued. (Tr. 459.) On March 27, 2009, Plaintiff
expressed anger at the doctor for not calling in her medication and not helping her. She denied
any suicidal or homicidal ideation, and medications were continued as prescribed. (Tr. 461.)
On March 31, 2009, Plaintiff reported a course of increased pain over the course of
several years, describing the pain as “a severe dull aching” in the shoulder, elbow, and knees.
Physical examination by Felicia Brown, M.D., showed no acute distress, normal posture, and
gait, full range of motion of the neck, and painful movement of elbows and knees, bilaterally. Xrays conducted of Plaintiff’s knees on April 2, 2009, were negative, showing there was no
fracture or dislocation or evidence of joint effusion. (Tr. 491-94.)
On April 28, 2009, Plaintiff visited Dr. Kurian. Plaintiff reported that she was told by the
orthopedics department that her neck problem caused the swelling in her hands and she was
trying to walk more to lose weight. Dr. Kurian noted that Plaintiff’s spinal movements were
painful, right shoulder movements were painful with a decreased range of motion, and bilateral
knee movements were painful without a decrease in range of motion. (Tr. 520-25.)

20

On May 8, 2009, Plaintiff visited JF&CS and complained of not sleeping well in four
months. Plaintiff’s medications were continued as prescribed. (Tr. 517.)
On May 9, 2009, Plaintiff went to the emergency room for a fractured left ankle due to a
fall. (Tr. 546-47.) On May 13, 2009, surgery was recommended and Plaintiff was placed in a
short leg cast. (Tr. 575-76.) Surgery on the left ankle was performed on May 27, 2009, and
Plaintiff was discharged from the hospital the next day with instructions to keep her left leg
elevated and iced, keep her splint clean and dry, and not to place weight on her left leg. (Tr. 62536.) Post-surgical visits on June 3 and 17, 2011, showed Plaintiff was doing well. The plan was
to transition her to a “MOON boot” in three weeks. (Tr. 675-70.)
II.

ALJ’S DECISION OF OCTOBER 9, 2009 (Tr. 11-20)

The ALJ determined that Plaintiff met the insured status requirements of the Social
Security Act through December 31, 2010, and that she had not engaged in any substantial gainful
activity since May 18, 2007, the alleged disability onset date. The ALJ determined that Plaintiff
had the following severe impairments: spinal disorder, an affective mood disorder, and the
residual effects of right shoulder surgery and left ankle surgery. The ALJ concluded, however,
that Plaintiff did not have an impairment or combination of impairments that met or medically
equaled one of the deemed-disabling impairments listed in the Commissioner’s regulations.
With respect to Plaintiff’s musculoskeletal impairments, the residual effects of Plaintiff’s
right shoulder and left ankle surgery, the ALJ found no evidence that these impairments
prevented Plaintiff from being able to ambulate effectively or from performing fine and gross
movements as defined in the Commissioner’s regulations. The ALJ also found no evidence that
Plaintiff’s spinal disorder involved nerve root compression, spinal arachnoiditis or lumbar
stenosis so as to prevent her from ambulating effectively.

21

With respect to Plaintiff’s mental impairments, the ALJ found that neither the paragraph
B nor paragraph C criteria were satisfied; and found that Plaintiff had only moderate restriction
in activities of daily living. Specifically, the ALJ found that Plaintiff was able to do laundry,
fold clothes and put them away, make her bed, prepare meals, wash dishes, and use the
computer. Plaintiff also drove in her community and could handle money. The ALJ then found
that Plaintiff had moderate difficulty with social functioning, mild difficulty with concentration,
persistence, or pace, and had experienced no episodes of decompensation.
The ALJ then found that Plaintiff had the RFC to perform light work as defined in the
regulations, with the exception that she could not reach with the right arm in any direction on a
frequent basis and could do no overhead lifting with the right arm. The ALJ further determined
that Plaintiff could understand, remember, and carry out at least simple instructions and nondetailed tasks; demonstrate adequate judgment to make simple work-related decisions; and
perform work at a normal pace without production quotas.
Citing Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984), the ALJ found the
preponderance of the medical and other evidence inconsistent with Plaintiff’s allegation of
disability. Specifically, the ALJ found Plaintiff’s statements about the intensity, persistence, or
functionally limiting effects of her pain and other symptoms unsubstantiated by the objective
medial evidence and not credible to the extent they were inconsistent with the RFC. The ALJ
found Plaintiff had neither a long nor a steady work record up to her alleged onset of disability,
and noted that while the decision to work, or to work part-time, is one’s prerogative, it does not
support a finding of disability, suggests a lack of motivation to work and raises questions about
whether she was currently unemployed due to factors other than her medical problems. The ALJ
found no evidence that Plaintiff’s treating physicians found her current medications inadequate

22

or in need of significant adjustment. The ALJ further found the medical and other evidence
inconsistent with Plaintiff’s allegedly limited daily activities.
With respect to Plaintiff’s history of psychiatric treatment for depression, the ALJ gave
“some weight” to the reports of Plaintiff’s treating therapist, Esther Scharf, LCSW, finding that
Plaintiff generally had a normal or almost normal mental status exam; a GAF score above 51,
signifying symptoms of mild to moderate severity; and a generally favorable response to
medication. The ALJ discounted Ms. Scharf’s September 4, 2008 report describing Plaintiff’s
psychiatric limitations as more severe, finding the conclusions in that report inconsistent with the
evidence as a whole and with Ms. Scharf’s own treatment records. Because he found it generally
consistent with the evidence on the record, the ALJ gave significant weight to the assessment of
the State Agency medical source, Kyle DeVore, Ph.D., finding Plaintiff’s depression moderately
limiting but not totally disabling.
With respect to Plaintiff’s musculoskeletal limitations, the ALJ discounted the opinions
of Plaintiff’s treating physician, John Lautenschlager, M.D. Citing Hofslien v. Barnhart, 439
F.3d 375 (7th Cir. 2006), the ALJ noted that Dr. Lautenschlager, “might be sympathetic to”
Plaintiff and that he failed to build a bridge between his conclusions regarding work-related
limitations and his medical findings. The ALJ found no evidence that Plaintiff would be
severely limited by the residual effects of her recent ankle surgery but noted that the RFC
included limitations taking this condition onto account.
The ALJ then found that Plaintiff was unable to perform any past relevant work, as her
former positions exceeded his RFC finding that Plaintiff was able to perform light work with
limitations. Having noted that Plaintiff’s additional limitations affected her ability to perform all
or substantially all of the requirements of light work, the ALJ looked to the VE’s testimony to

23

determine the extent to which Plaintiff’s limitations would “erode the unskilled light
occupational base.” The ALJ noted the VE’s testimony that an individual of Plaintiff’s age,
education, work experience, and RFC would be able to perform the representative requirements
of such jobs as school bus monitor, sandwich board carrier, and parking lot attendant, and that
there were approximately 350,000 such jobs in the national economy and 4,000 such jobs in the
state of Missouri. On the basis of this testimony the ALJ found that a significant number of jobs
exist in the national and local economies that Plaintiff could perform. Thus the ALJ concluded
that Plaintiff has not been under a disability, as defined by the Social Security Act, from May 18,
2007, through the date of the ALJ’s decision.
III.

EVIDENCE SUBMITTED TO THE APPEALS COUNCIL

On July 16, 2009, Plaintiff visited JF&CS, reporting she was stressed and tired. Plaintiff
also reported she was doing well on her medications (Wellbutrin, Celexa, Buspar, Clorozapam,
and Trazadone) and they were continued. (Tr. 685.)
On July 29, 2009, Plaintiff visited David Kieffer, M.D., at NCCHC to review an MRI and
follow up on right arm, back, and spine pain. Dr. Kieffer noted the MRI showed mild
spondylosis and mild stenosis, normal discs, and no nerve impingement. He noted a slightly
decreased range of motion of the cervical spine and intact sensation, recommended regular
exercise, and prescribed Darvocet and Naproxen. (Tr. 699.)
On August 6, 2009, Ms. Scharf completed another semi-annual assessment for Plaintiff.
Ms. Scharf again diagnosed Plaintiff with major depression disorder, recurrent and moderate;
generalized anxiety disorder; and a GAF score of 54. Ms. Scharf noted Plaintiff had chronic
mental illness as well as physical disability. (Tr. 687-89.)

24

On September 4, 2009, Plaintiff visited JF&CS and reported her Trazadone was helping
and she was staying asleep. Plaintiff’s current medications were continued. (Tr. 695.)
On September 21, 2009, Plaintiff visited Dr. Kurian and asked for more pain medication
because she had flushed medications she had down the toilet. Dr. Kurian noted concern, because
Plaintiff seemed groggy and had a history of depression. Plaintiff reported that her grogginess
was from her depression and “psych meds.” Plaintiff denied suicidal or homicidal ideations.
Plaintiff complained that her pain was worse on the right side of her body. Dr. Kurian noted that
she informed Plaintiff that she was uncomfortable prescribing narcotics as Plaintiff was sedated
and groggy and narcotics did not seem to help with her pain. Dr. Kurian noted she contacted
JF&CS and “Dr. Ibrahim” regarding Plaintiff’s number of prescriptions, including two types of
Wellbutrin. Dr. Kurian noted Dr. Ibrahim contacted her and stated that he was unaware that
Plaintiff had other bottles of Wellbutrin. (Tr. 709-10.)
In a letter dated November 5, 2009, Ms. Scharf stated Plaintiff had been her patient for
over three years and that Plaintiff suffered from post-traumatic stress disorder, depression, and
chronic debilitating pain. (Tr. 716.) In a letter dated November 16, 2009, A. Ibrahim, M.D.,
wrote that Plaintiff had been under the care of the Department of Psychiatry of SLUCare for
more than a year and that she had “a significant disability from her mental illnesses” -- major
depression, recurrent; and post-traumatic stress disorder. (Tr. 714.)
The Appeals Council denied Plaintiff’s request for review, stating the new information
she had submitted was about a time after the ALJ’s decision and thus did not affect the decision
as to whether she was disabled as of October 6, 2009, the date of the decision. (Tr. at 2.)

25

IV.

LEGAL STANDARD

Under the Social Security Act, the Commissioner has established a five-step process for
determining whether a person is disabled. 20 C.F.R. §§ 416.920, 404.1520. “‘If a claimant fails
to meet the criteria at any step in the evaluation of disability, the process ends and the claimant is
determined to be not disabled.’” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting
Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the
claimant first cannot be engaged in “substantial gainful activity” to qualify for disability benefits.
20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant must have a severe impairment.
The Social Security Act defines “severe impairment” as “any impairment or combination of
impairments which significantly limits [claimant’s] physical or mental ability to do basic work
activities ….” 20 C.F.R. §§ 416.920(a) (iii), 404.1520(a) (iii). “The sequential evaluation
process may be terminated at step two only when the claimant’s impairment or combination of
impairments would have no more than a minimal impact on [his or] her ability to work.” Page v.
Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605
(8th Cir. 2001)).
Third, the ALJ must determine whether the claimant has an impairment which meets or
equals one of the impairments listed in the Regulations at 20 C.F.R. §§ 416.920(a) (iii),
404.1520(a) (iii). If the claimant has one of, or the medical equivalent of, these impairments,
then the claimant is per se disabled without consideration of the claimant’s age, education, or
work history. 20 C.F.R. §§ 416.920(a) (iii), 404.1520(a)(iii).

26

Fourth, the impairment must prevent claimant from doing past relevant work.5 20 C.F.R.
§ 404.1520(e). At this step, the burden rests with the claimant to establish his or her RFC. Steed
v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008); Eichelberger, 390 F.3d at 590-91; Masterson v.
Barnhart, 363 F.3d 731, 737 (8th Cir. 2004). RFC is defined as what the claimant can do despite
his or her limitations, 20 C.F.R. § 404.1545(a), and includes an assessment of physical abilities
and mental impairments. 20 C.F.R. § 404.1545(b)-(e). The ALJ will review a claimant’s RFC
and the physical and mental demands of the work the claimant has done in the past. 20 C.F.R. §
404.1520(f). If it is found that the claimant can still perform past relevant work, the claimant
will not be found to be disabled. Id.; 20 C.F.R. § 416.920(a)(4)(iv). If the claimant cannot
perform past relevant work, the analysis proceeds to Step V.
At the fifth and last step, the ALJ considers the claimant’s RFC, age, education, and work
experience to see if the claimant can make an adjustment to other work. 20 C.F.R. §
416.920(a)(4)(v). If it is found that the claimant cannot make an adjustment to other work, the
claimant will be found to be disabled. Id. See also 20 C.F.R. § 416.920(g). At this step, the
Commissioner bears the burden to “prove, first that the claimant retains the RFC to perform
other kinds of work, and, second that other work exists in substantial numbers in the national
economy that the claimant is able to perform.” Goff, 421 F.3d at 790; Nevland v. Apfel, 204 F.3d
853, 858 (8th Cir. 2000). The Commissioner must prove this by substantial evidence. Warner
v. Heckler, 722 F.2d 428, 431 (8th Cir. 1983).

5

“Past relevant work is work that [the claimant] has done within the past 15 years, that was
substantial gainful activity, and that lasted long enough for [the claimant] to learn how to do it.”
Mueller v. Astrue, 561 F.3d 837, 841 (8th Cir. 2009) (citing 20 C.F.R. §§ 404.1520(a)(4)(iv),
404.1560(b)(1)).

27

If the claimant satisfies all of the criteria of the five-step sequential evaluation process,
the ALJ will find the claimant to be disabled. The ultimate burden of persuasion to prove
disability remains with the claimant. See Harris v. Barnhart, 356 F.3d 926, 931 n.2 (8th Cir.
2004) (citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)).
This court reviews the decision of the ALJ to determine whether the decision is supported
by “substantial evidence” in the record as a whole. See Smith v. Shalala, 31 F.3d 715, 717 (8th
Cir. 1994). “Substantial evidence is less than a preponderance but is enough that a reasonable
mind would find it adequate to support the Commissioner’s conclusion.” Krogmeier v.
Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002). See also Cox v. Astrue, 495 F.3d 614, 617 (8th
Cir. 2007). Therefore, even if a court finds that there is a preponderance of the evidence against
the ALJ’s decision, the ALJ’s decision must be affirmed if it is supported by substantial
evidence. Krogmeier, 294 F.3d at 1022. In Bland v. Bowen, 861 F.2d 533, 535 (8th Cir. 1988),
the Eighth Circuit Court of Appeals held:
[t]he concept of substantial evidence is something less than the weight of the
evidence and it allows for the possibility of drawing two inconsistent conclusions,
thus it embodies a zone of choice within which the Secretary may decide to grant
or deny benefits without being subject to reversal on appeal.
Similarly, the ALJ decision may not be reversed because the reviewing court would have
decided the case differently. Krogmeier, 294 F.3d at 1022.
It is not the job of the district court to re-weigh the evidence or review the factual record
de novo. Cox, 495 F.3d at 617; Guillams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005).
Weighing the evidence is a function of the ALJ, who is the fact-finder. Masterson v. Barnhart,
363 F.3d 731, 736 (8th Cir. 2004). The factual findings of the ALJ are conclusive if supported
by substantial evidence. See 42 U.S.C. § 405(g). The district court must simply determine
whether the quantity and quality of evidence is enough so that a reasonable mind might find it
28

adequate to support the ALJ’s conclusion. Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001)
(citing McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)).
To determine whether the Commissioner’s final decision is supported by substantial
evidence, the Court is required to review the administrative record as a whole and to consider:
(1) The findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating physicians;
(4) The subjective complaints of pain and description of the claimant’s
physical activity and impairment;
(5) The corroboration by third parties of the claimant’s physical
impairment;
(6) The testimony of vocational experts based upon proper hypothetical
questions which fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dept. of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980); Cruse v.
Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989). Additionally, an ALJ’s decision must comply
“with the relevant legal requirements.” Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008).
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 has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. § 416(i)(1)(A); 42 U.S.C. § 423(d)(1)(A).
“While the claimant has the burden of proving that the disability results from a medically
determinable physical or mental impairment, direct medical evidence of the cause and effect
relationship between the impairment and the degree of claimant’s subjective complaints need not
be produced.” Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). A claimant's subjective
29

complaints may not be disregarded solely because the objective medical evidence does not fully
support them. Id. The absence of objective medical evidence is just one factor to be considered
in evaluating the claimant’s credibility and complaints. Id. The ALJ must fully consider all of
the evidence presented relating to subjective complaints, including the claimant's prior work
record, and observations by third parties and treating and examining physicians relating to such
matters as:
(1) the claimant’s daily activities;
(2) the subjective evidence of the duration, frequency, and intensity of the
claimant’s pain;
(3) any precipitating or aggravating factors;
(4) the dosage, effectiveness, and side effects of any medication; and
(5) the claimant’s functional restrictions
Id. The ALJ must make express credibility determinations and set forth the inconsistencies in
the record which cause him to reject the claimant’s complaints. Guillams, 393 F.3d at 802;
Masterson, 363 F.3d at 738. “It is not enough that the record contains inconsistencies; the ALJ
must specifically demonstrate that he considered all of the evidence.” Id. (citing Butler v. Sec’y
of Health & Human Servs., 850 F.2d 425, 429 (8th Cir. 1988)). The ALJ, however, “need not
explicitly discuss each Polaski factor.” Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir.
2004). See also Steed, 524 F.3d at 876 (citing Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000)).
The ALJ need only acknowledge and consider those factors. Id. Although credibility
determinations are primarily for the ALJ and not the court, the ALJ’s credibility assessment must
be based on substantial evidence. Rautio v. Bowen, 862 F.2d 176, 179 (8th Cir. 1988).
“In cases involving the submission of supplemental evidence subsequent to the ALJ's
decision, the record includes that evidence submitted after the hearing and considered by the
30

Appeals Council.” Bergmann v. Apfel, 207 F.3d 1065, 1068 (8th Cir. 2000) (citing Jenkins v.
Apfel, 196 F.3d 922, 924 (8th Cir. 1999). “In such a situation, “[a] court’s role is to determine
whether the ALJ’s decision ‘is supported by substantial evidence on the record as a whole,
including the new evidence submitted after the determination was made.’” Id. (citing Riley v.
Shalala, 18 F.3d 619, 622 (8th Cir. 1994)). “In practice, this requires [a] court to decide how the
ALJ would have weighed the new evidence had it existed at the initial hearing.” Id. (citing Riley,
18 F.3d at 622). Thus, the appropriate inquiry is not whether the Appeals Council erred, but
whether the record as a whole supports the decision of the ALJ. Perks v. Astrue, 687 F.3d
1086,1091(8th Cir. 2012) (citing Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir. 2000)).
V.

DISCUSSION

Plaintiff contends the ALJ’s RFC determination is not supported by “some” medical
evidence as required by the Eighth Circuit’s opinions in Singh v. Apfel, 222 F.3d 448 (8th Cir.
2000), and Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001). As a result of this deficiency,
Plaintiff further asserts that the hypothetical questions posed to the VE failed to include all the
effects of Plaintiff’s impairments; and therefore, that the VE’s responses do not constitute
substantial evidence. The Commissioner contends the ALJ’s RFC assessment is supported by
the record as a whole and the ALJ properly relied upon the testimony of the VE in finding
Plaintiff is not disabled.
The RFC is a function-by-function assessment of an individual’s ability to do work
related activities on a regular and continuing basis. SSR 96-8p, 1996 WL 374184, at *1 (July 2,
1996). It is the ALJ’s responsibility to determine the claimant’s RFC based on all relevant
evidence, including medical records, observations of treating physicians and the claimant’s own
descriptions of his limitations. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001).

31

Although the ALJ bears the primary responsibility for assessing a claimant’s RFC based on all
relevant evidence, a claimant’s RFC is a medical question. Hutsell v. Massanari, 259 F.3d 707,
711 (8th Cir. 2001) (citing Lauer, 245 F.3d at 704). Therefore, an ALJ is required to consider at
least some supporting evidence from a medical professional. Lauer, 245 F.3d at 704. An RFC
determination made by an ALJ will be upheld if it is supported by substantial evidence in the
record. Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006).
Plaintiff asserts that the ALJ improperly discounted Ms. Scharf’s opinion and instead
relied on the assessment of Dr. DeVore, a non-examining agency source, and also failed to
mention why Dr. Johns’ report was not considered.
In making a disability determination, the ALJ shall “always consider the medical
opinions in [the] case record together with the rest of the relevant evidence [in the record.]” 20
C.F.R. § 404.1527(b); see also Heino v. Astrue, 578 F.3d 873, 879 (8th Cir. 2009). “Medical
opinions are statements from physicians and psychologists or other acceptable medical sources
that reflect judgments about the nature and severity of [the claimant’s] impairment(s), including
[the claimant’s] symptoms, diagnosis and prognosis, what [the claimant] can still do despite
impairment(s), and [his or her] physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2).
“It is the ALJ's function to resolve conflicts among the opinions of various treating and
examining physicians.” Wagner v. Astrue, 499 F.3d 842, 848 (8th Cir. 2007). “The ALJ may
reject the conclusions of any medical expert, whether hired by the claimant or the government, if
[the conclusions] are inconsistent with the record as a whole.” Id.
The weight to be given to a medical opinion is governed by a number of factors including
the examining relationship, the treatment relationship, the length of the treatment relationship
and frequency of examination, the consistency of the source’s opinion, and whether the source is

32

a specialist in the area. 20 C.F.R. § 404.1527(d). In Lacroix v. Barnhart, 465 F.3d 881 (8th Cir.
2006), the Eighth Circuit explained that opinions of therapists and nurse practitioners who
comprised a claimant’s mental-health treatment team were not entitled to greater weight than
opinions of non-treating examining consultants, as therapists and nurses were not “acceptable
medical sources” as defined by the regulations, 20 C.F.R. 20 C.F.R. § 404.1527(a).
The Eighth Circuit also has held that it does not consider “the opinions of non-examining,
consulting physicians standing alone to be substantial evidence.” Harvey v. Barnhart, 368 F.3d
1013, 1016 (8th Cir. 2004). The ALJ may, however, rely on the consultant’s opinion in the
context of the entire record which as a whole provides substantial support for the consultant’s
findings. Id. In this case, the Court concludes on the basis of its review of the administrative
record that the ALJ’s decision to accord significant weight to Dr. DeVore’s assessment is not
supported by substantial evidence in the record. Dr. DeVore relied solely upon the evidence
found in Ms. Scharf’s treatment notes. The ALJ found Ms. Scharf’s own quarterly and semiannual assessments inconsistent with her treatment notes, yet accorded Dr. DeVore’s assessment
premised on the very same treatment notes significant weight. The Court is hardpressed to
understand how Ms. Scharf’s assessments are inconsistent with her treatment notes .
Furthermore, even if Dr. DeVore’s assessment of Plaintiff’s limitations is accepted, the
ALJ’s hypothetical question does not incorporate those restrictions. Most notably, the ALJ
failed to incorporate in the hypothetical any reference to his findings of moderate limitations in
social functioning, which would include the ability to work in coordination with or proximity to
others without being distracted by them, to interact appropriately with the general public, to
accept instructions and respond appropriately to criticism from supervisors; to get along with
coworkers or peers without distracting them or exhibiting behavioral extremes, and to respond

33

appropriately to changes in the work setting. See Renstrom v. Astrue, 680 F.3d 1057, 1067 (8th
Cir. 2012). Remand is necessary because the ALJ relied on an improper hypothetical question
posed to the ALJ.
The Court further concludes that the Appeals Council clearly erred in refusing to credit
Dr. Ibrahim’s letter of November 16, 2009, on the basis of the finding that the letter referred to
Plaintiff’s condition in the time period after the ALJ’s decision. Although Dr. Ibrahim’s letter
was dated five weeks after the ALJ’s decision, according to his letter, his assessment covered a
relevant time period beginning approximately one year after the date of Dr. DeVore’s December
4, 2007 assessment.
In addition, the Court notes that the medical record in this case is extensive, but it does
not appear to include the treatment notes from the year of psychiatric care referred to by Dr.
Ibrahim. Although it is possible that the notes relating to the care provided by JF&CS are Dr.
Ibrahim’s notes, the record does not clearly establish this fact and this will be a matter for the
Commissioner to clarify on remand.
The Court also notes that although the ALJ need not have considered Dr. Johns’ March 9,
2006 assessment because it occurred approximately 14 months before Plaintiff’s alleged onset
date of disability, May 18, 2007, that assessment is consistent with, and provides additional
support for Ms. Scharf’s and Dr. Ibrahim’s opinions. Taking this into account, it may be that on
remand, the Commissioner will determine that obtaining the opinion of an examining medical
expert may be necessary.
The Court finally notes with respect to Plaintiff’s physical impairments, that the evidence
on the record, in particular the many physical findings indicating only mild symptoms, arguably
supports the ALJ’s RFC. Nonetheless, on remand in considering Plaintiff’s RFC, the ALJ must

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assess the combined effect of both her mental and physical impairments. See 20 C.F.R. §
404.1523; Social Security Ruling 96-8p, 1996 WL 374184, at *5 (when assessing an individual’s
RFC, the ALJ “must consider an individual’s impairments in combination); Cunningham v.
Apfel, 222 F.3d 496, 501 (8th Cir. 2000) (holding that the ALJ must consider “the combined
effect of all impairments without regard to whether any such impairment, if considered
separately, would be of sufficient medical severity to be disabling”).
VI.

CONCLUSION

For the reasons set forth above, the Court concludes the Commissioner’s decision that
Plaintiff is not disabled is not supported by substantial evidence on the record as a whole.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED and
the case is REMANDED for further consideration consistent with this Memorandum and Order.
A separate Judgment shall accompany this Memorandum and Order
Dated this 28th day of September, 2012.

AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

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