Johnsen v. Astrue

Filing 14

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the decision of the Commissioner is reversed, and this cause is remanded to the Commissioner for proceedings consistent with this Memorandum and Order. Signed by Magistrate Judge Frederick R. Buckles on 9/14/2012. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
ALICE M. JOHNSEN,

)
)
Plaintiff,
)
)
v.
)
)
MICHAEL J. ASTRUE, Commissioner )
of Social Security,
)
)
Defendant.
)

Case No. 4:11CV927 FRB

MEMORANDUM AND ORDER
This matter is on appeal from an adverse ruling by the
Commissioner of Social Security.

All matters are pending before

the undersigned United States Magistrate Judge, with consent of the
parties, pursuant to 28 U.S.C. § 636(c).
I.

Procedural Background

Plaintiff Alice M. Johnsen (“plaintiff”) applied for
Supplemental Security Income (“SSI”) under Title XVI of the Social
Security Act (“Act”) and for Disability Insurance Benefits (“DIB”)
under Title II of the Act, alleging that she became unable to work
due to disability on September 1, 2006.
alleged

that

hyperactivity

she

was

disorder

(“ADD”), and depression.

disabled
(“ADHD”),
(Tr. 236).

due

(Tr. 114-125).
to

attention

Plaintiff

attention

deficit

deficit

disorder

In her application for SSI,

plaintiff averred that she was not disabled prior to age 22.

(Tr.

122).
Plaintiff’s applications were denied initially and upon

-1-

reconsideration,

and

she

requested

a

hearing

before

an

administrative law judge (“ALJ”) which was held on December 1,
2009.

(Tr. 23-50).

On January 26, 2010, the ALJ issued a decision

in which he determined that plaintiff was not disabled under the
Act. (Tr. 10-22). Plaintiff sought review from defendant agency’s
Appeals Council, which granted plaintiff’s request for review on
February 18, 2011.

(Tr. 57-60).

On April 7, 2011, the Appeals

Council issued an unfavorable decision, finding that plaintiff was
not disabled under the Act.

(Tr. 1-8).

The Appeals Council’s

decision thus stands as the Commissioner’s final decision subject
to review by this Court under 42 U.S.C. § 405(g).

See Sims v.

Apfel, 530 U.S. 103, 106-107 (2000) (if the Appeals Council grants
review of a claim, then the decision that the Council issues is the
Commissioner’s final decision).
II.
A.

Evidence Before The Commissioner

Plaintiff’s Testimony
During

the

administrative

hearing

before

the

ALJ,

plaintiff, age 28, testified that she had left school in the
eleventh grade, that she was married, and that she had a young
daughter.

(Tr. 27-29).

She testified that she and her husband and

daughter lived with her husband’s parents, both of whom were
disabled.

(Tr. 34).

She testified that she stopped trying to get

her G.E.D. due to frustration.

(Tr. 29-30).

She testified that

her husband had been employed as a newspaper delivery person, but
quit that job because the delivery route was “too hard on the van”
inasmuch as he was required to drive many miles on dirt roads and
-2-

city streets, and also because gas was expensive.

(Tr. 37-38).

Plaintiff testified that she received food stamps.

(Tr. 28-29).

She did not have a driver’s license because she failed the written
license examination on two occasions.

(Tr. 29).

Plaintiff earned grades of A and B in middle school, but
her

grades

were

slightly

poorer

in

high

school.

(Tr.

30).

Plaintiff testified that she could read, write, add and subtract.
(Tr. 31). She testified that she became frustrated while trying to
make dinner, and that her mother-in-law helped her.

(Id.)

When

asked to explain why she became frustrated while trying to make
dinner, plaintiff explained that she became frustrated if she
spilled things or if grease spattered on her.

(Tr. 32).

She

testified that she could cook lunch, and could cook things like
rice or macaroni and cheese without becoming frustrated.
She was able to do laundry without becoming frustrated.

(Id.)

(Tr. 33).

She testified that she became sidetracked while trying to do
household chores and needed reminders.

(Tr. 33-34).

Plaintiff testified that she had not worked much because
she was too easily sidetracked, and needed to have someone with her
to keep her on task.

(Tr. 34-35).

After leaving high school,

plaintiff worked as an in-home housekeeper; at South County Nursing
Home

as

a

certified

nurse’s

assistant

Silverleaf Club as a housekeeper.

(also

“CNA”);

and

at

(Tr. 35-36).

Plaintiff testified that she used to use marijuana “every
once in a while” but had not used it since she was married in May
of 2006.

(Tr. 36).

She testified that she had not had any
-3-

medication prescribed for her in “quite some time.”
Plaintiff
capabilities.

then

testified

regarding

(Tr. 37).
her

physical

She testified that she could run or jump for a

little while, and could lift and carry 20 pounds once or twice per
day.

(Tr. 39).

She stated that she could push and pull a grocery

cart, could balance and climb, and could bend over for a short
while.

(Tr. 39-40).

She denied problems with kneeling, crawling,

seeing, hearing, and speaking. (Tr. 40). Plaintiff testified that
she had trouble with her memory and could not remember “two weeks
ago.”

(Id.)

She stated that she became a little upset when she

heard bad news.

(Id.)

She testified that she became sidetracked

at work and needed someone to help her.

(Tr. 40-41).

Plaintiff

testified that she had Attention Deficit Disorder and could not
keep her mind on what she was trying to do.

(Tr. 43).

She stated

that she was depressed every day; that her depression lasted all
day; and that she had received mental health treatment at a clinic
in Ava, Missouri.

(Tr. 41, 43).

Plaintiff testified that she

experienced mood swings and “bad nerves.”

(Tr. 44).

When asked to describe a normal day, plaintiff testified
that she rose at 7:30 with her daughter, made breakfast, watched
cartoons with her daughter, performed “a little light cleaning on
the side with a little help,” made her daughter’s lunch, put her
daughter down for a nap, did laundry, made dinner, played with her
daughter, and put her to bed at 9:30.

(Id.)

Plaintiff testified

that she had to take breaks during the day because she was “hurting
so bad” and that she had trouble falling asleep due to pain.
-4-

(Tr.

41-42).

She stated that she had pain in her “back all the way up

my back, in my knees” that she rated at a seven on a scale of one
to ten.

(Tr. 42).

She stated she did not take any medications to

help the pain because she “didn’t want it.”

(Id.)

Plaintiff

testified that she smoked cigarettes, and that she drank alcohol
occasionally but never used illegal drugs.

(Id.)

Plaintiff then responded to questions from the ALJ.
Plaintiff initially denied that she had used cocaine, but when the
ALJ

noted

that

plaintiff

had

reported

using

cocaine

and

methamphetamine, plaintiff testified that she had tried cocaine and
methamphetamine one time but not again.

(Tr. 45).

Plaintiff

testified

medications

with

that

she

was

not

taking

any

the

exception of two aspirin every other day to dull the pain in her
back.

(Tr. 45-46).

She testified that she did not take Tylenol or

Advil because she heard they caused liver damage.
used no other treatment for her back pain.

(Tr. 46).

She

(Tr. 47).

The ALJ then heard testimony from the vocational expert
(also “VE”).
plaintiff’s

The ALJ asked the VE to consider an individual of
age,

education,

and

experience,

who

had

physical

restrictions and could perform simple, unskilled to low semiskilled activities; could understand, follow and remember concrete
instructions; have superficial contact with co-workers and the
public; and who could meet, greet, make change, and give simple
instructions and directions. (Tr. 48).

The VE testified that such

an individual could perform the duties of hand packager, and
cleaner, housekeeping.

(Tr. 48-49).
-5-

The VE testified that these

jobs had Specific Vocational Preparation (“SVP”)1 levels of two,
which corresponded to the fourth through the sixth grade.

(Tr.

49).
The ALJ then asked whether there were any jobs that could
be performed by such an individual whose poor attention span
rendered her unreliable for an eight-hour day or a 40-hour week on
a regular and consistent basis, and the VE testified that there
were no jobs that such an individual could perform.
B.

(Id.)

Medical and Other Evidence
The administrative record includes school records from

Vineland Elementary School in De Soto, Missouri.

(Tr. 133-209).

Plaintiff was enrolled in special education programs beginning in
kindergarten.

(Id.)

It is indicated that an Individualized

Educational Program (also “IEP”) was implemented for plaintiff when
she was six and one-half years of age.

(Tr. 133).

It is noted

that plaintiff had delays in expressive and receptive language
development and difficulty following directions, and she appeared
frustrated.

(Tr. 134).

When plaintiff was eleven years of age,

her school noted that she had matured, but had some attitude
problems that affected the quality of her work.

(Tr. 150).

It was

noted that she had made good progress in reading, and that her math
skills were at a second-grade level.

(Id.)

In plaintiff’s sixth

grade year, her school reported that she exhibited disrespectful

1

“SVP” refers to the amount of time it generally takes to
learn a job. See United States Dep’t of Labor, Employment and
Training Admin., Dictionary of Occupational Titles (“DOT”), Vol.
II, Appendix C at 1009.
-6-

behavior in class, and had mood swings and temper outbursts.
158).

(Tr.

It was noted that she was performing reading and math at a

third grade level. (Id.)

During plaintiff’s seventh grade year,

her school noted that she fell in the low range of intelligence
according to the results of the Wechsler Intelligence Scale for
Children (“WISC-III”) test.

(Tr. 174).

She was reading without

difficulty at the fourth grade level, but had poor math skills and
a bad attitude towards school work and did “not seem to care if she
does an assignment or not.”

(Id.)

Plaintiff’s school records indicate that plaintiff’s
eighth grade year was a very positive one; that plaintiff seemed
happier and was completing her work; and that she was doing “quite
well” in multiplication and division.

(Tr. 181).

In her tenth

grade year, she was working in the school cafeteria and was keeping
up her classes.

(Tr. 193).

It was noted that her full-scale I.Q.

was 68, and that she performed significantly better on nonverbal
than on verbal reasoning tasks.

(Id.)

She was noted to be easily

frustrated with people who disagreed with her or made negative
comments to her.
an annual goal.
noted

that

mainstreamed

(Id.)

Increasing career awareness was listed as

(Tr. 193-94).

her

full-scale

into

a

not

expressed

I.Q.

regular

science, and an art class.
had

In her eleventh grade year, it was

a

math

was

class,

(Tr. 204).

career

68,

but

that

family

and

she

was

consumer

It is noted that plaintiff

direction,

but

would

have

the

opportunity to meet with a vocational rehabilitation representative
and go through career interest and aptitude testing.
-7-

(Id.)

It was

noted that plaintiff worked best in a structured setting with few
distractions,

and

that

she

was

easily

encouragement to continue working.

frustrated

(Id.)

and

needed

Long-term goals for

plaintiff were noted as choosing a career direction, and taking the
necessary steps for job training.

(Id.)

In ninth grade, plaintiff

earned grades of B- in math and science; B+ in social studies, B in
English, and C in physical education and reading.

(Tr. 213).

On October 15, 1996, Ms. Nadine Sebastian, plaintiff’s
classroom teacher, completed a Diagnostic Summary.

(Tr. 215-18).

Ms. Sebastian noted that plaintiff had suffered complications
during birth.

(Tr. 215).

Ms. Sebastian noted that plaintiff’s

cognitive ability was within the intellectually deficient range,
and that plaintiff performed better on
reasoning.

(Tr. 216).

nonverbal than verbal

Ms. Sebastian concluded that plaintiff met

the eligibility criteria to be classified as mildly mentally
handicapped.

(Tr. 217).

In a Disability Report, plaintiff wrote that she suffered
from ADHD, AADD, and depression.

(Tr. 236).

She explained that

she had difficulty getting along with others, was easily confused
and frustrated, had trouble reading due to dyslexia, and was
experiencing headaches.

(Id.)

She wrote that she stopped working

on September 1, 2006 “due to [her] pregnancy.”
wrote

that

she

had

worked

as

a

(Id.)

Plaintiff

housekeeper/attendant

for

a

disability resource program for approximately one year. (Tr. 237).
She wrote that, in this job, she cleaned a woman’s home, dusted,
mopped, cooked for her, helped her dress, and cleaned her bathroom.
-8-

(Id.)
Medical records from Missouri Ozarks Community Health
(also “Community Health”) indicate that plaintiff was seen by S.
Pogue, M.D., on June 13, 2006 with complaints of chronic back pain.
(Tr. 303).

Upon examination, it was noted that plaintiff was

“moaning and groaning a lot and taking short hyperventalatory
breaths,” but that she did “not moan and groan much when she thinks
I am not there to listen.”
with no spinal tenderness.

(Tr. 304).
(Id.)

Plaintiff had a normal gait

She was given a muscle relaxant

and instructed to return in two weeks if there was no improvement.
(Id.)
On December 21, 2006, plaintiff returned to Community
Health with complaints of bilateral earache, migraine headache, and
pain with swallowing.
pregnant. (Id.)
antibiotic.

(Tr. 305).

She reported that she was

She was diagnosed with tonsillitis and given an

(Id.)

Plaintiff returned on March 8, 2007 with

complaints of a sore throat, runny nose, migraine, nausea, fatigue,
weakness, and ear pain.

(Tr. 306).

She was seven months pregnant.

(Id.)

She was diagnosed with sinusitis and given an antibiotic.

(Id.)

On April 2, 2007, plaintiff returned to Community Health for

reasons unrelated to the case at bar.
complain of back pain.

(Tr. 307).

She did not

See (Id.)

On June 5, 2007, plaintiff returned to Community Health
and complained of post-partum depression, stating that she was
experiencing mood changes and increased appetite.

(Tr. 308).

She

reported that her baby was born eight weeks premature, and that she
-9-

was under a lot of stress because she was traveling from her home
to the hospital to see the baby.
counseling.

(Id.)

(Id.)

She was referred for

She returned on July 11, 2007 with complaints

of severe bladder pain and trouble with urination.

(Tr. 309).

She

reported that she had a lot of pain with her menstrual period, and
was starting her period at that time.

(Id.)

She returned on

August 2, 2007 with complaints of mood swings and depression, and
stated that she had bitten her husband the preceding night “during
a fit.”

(Tr. 312). Physical examination was normal, and plaintiff

was noted to have a normal gait, balance and coordination, and to
move all of her extremities without difficulty.
given Prozac.2

(Id.)

(Id.)

She was

Plaintiff returned on August 15, 2007 for

follow up on medications.

(Tr. 313).

She reported pain in her

ears and throat, cough, congestion, and hoarseness. (Id.) She was
diagnosed with depression and middle ear fluid.

(Id.)

On October 15, 2007, plaintiff returned to Community
Health with complaints of sore throat, loss of voice, and ear ache.
(Tr. 315). Physical examination revealed that she moved all of her
extremities without difficulty.
bronchitis.

(Id.)

findings were noted.

(Id.)

She was diagnosed with

She returned the following day, and the same
(Tr. 316).

Plaintiff returned on November

28, 2007 for “medications change,” and complained of a cough. (Tr.
317).

She noted that she was having more outbursts.

2

(Id.)

On

Prozac, or Fluoxetine, is used to treat depression,
obsessive-compulsive disorder, some eating disorders, and panic
attacks. http://www.nlm.nih.gov/medlineplus/druginfo/
medmaster/a689006.html
-10-

February 25, 2008, she reported fever, aches and pains, ear pain,
sneezing, runny nose/congestion, and productive cough.
She was diagnosed with influenza.

(Tr. 318).

(Id.)

In a Function Report dated January 10, 2008, plaintiff
reported that she was able to do laundry, make beds/change sheets,
vacuum/sweep,

take

out

trash,

and

garden.

(Tr.

249).

She

indicated that she could shop for about two and one-half hours or
more.

She indicated that she could watch a two-hour movie

(Id.)

but would shake her leg and rock.

(Tr. 250).

She wrote that she

read “books, newspapers, magazines, etc” but could only read for a
few minutes.

(Id.)

Plaintiff returned to Community Health on March 20, 2008
for medication change and a diabetes test.
alert, active, and in no acute distress.
Cymbalta.3

(Tr. 370).
(Id.)

She was

She was given

(Id.)
On March 27, 2008, Clinical Psychologist David Lutz,

Ph.D., completed a Consultative Examination Report.

(Tr. 338-48).

Plaintiff reported mood swings and trouble staying focused.
343).

(Tr.

She reported that she was an average student, attended

special education classes, and primarily earned grades of A and B.
(Tr. 344).

She reported that she was suspended from school on

several occasions for cursing at teachers, fighting, and leaving
class.

(Id.)

She reported that she had previously used illicit

3

Cymbalta, or Duloxetine, is used to treat depression and
generalized anxiety disorder.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a604030.html
-11-

drugs, including marijuana, cocaine, and methamphetamine, but not
recently.
(Id.)

(Id.)

Plaintiff reported that she was taking Cymbalta.

She reported back problems and migraine headaches.

(Tr.

344).
Dr. Lutz noted that plaintiff was cooperative, responsive
and sufficiently pleasant, but seemed to have little energy or
motivation.

(Tr. 345).

Dr. Lutz also noted that it seemed likely

that it would take little to irritate plaintiff.

(Id.)

Dr. Lutz

administered the Wechsler Adult Intelligence Scale test (also
“WAIS-III”).

(Tr. 346).

Plaintiff’s verbal I.Q. score was 70

(borderline range); her performance I.Q. was 80 (low average
range), and her full scale I.Q. was 74 (borderline range).
Her

verbal

comprehension

was

in

the

borderline

(Id.)

range;

her

perceptual organization was in the low average range; and her
working memory was in the extremely low range.

(Id.)

Dr. Lutz

opined that plaintiff had borderline intellectual functioning, and
that plaintiff’s Global Assessment of Functioning (“GAF”) score was
65, indicating mild symptoms.

(Tr. 348).

Dr. Lutz opined that

plaintiff seemed to be able to understand and remember simple and
possibly some moderately complex instructions, but would have
trouble with complex instructions. (Id.) He opined that plaintiff
seemed able to sustain concentration and persistence on simple
tasks, but would have

difficulty with moderately complex and

complex tasks.

He opined that plaintiff seemed able to

(Id.)

interact in limited to possibly some moderately demanding social
situations, and seemed able to adapt to her environment.
-12-

(Id.)

Plaintiff returned to Community Health on March 28, 2008
for medications and a repeat blood glucose test, and complained of
mood swings.

(Tr. 369).

She was in no acute distress.

(Id.)

She

returned on April 2, 2008 with complaints of right ankle pain after
a fall.

(Tr. 367).

X-ray revealed no fracture.

was given an over-the-counter analgesic.

(Id.)

Plaintiff

(Id.)

On April 2, 2008, David Spence, Ph.D., completed a Mental
Residual Functional Capacity Assessment. (Tr. 349-52). Dr. Spence
opined that plaintiff was “moderately limited” in her ability to
respond appropriately to changes in work setting; complete a normal
workday and workweek without interruptions from symptoms and to
perform at a consistent pace without unusually frequent or long
rest periods; maintain attention and concentration for extended
periods; and to understand,
instructions.

(Tr. 349-50).

remember, and carry out detailed
Dr. Spence opined that plaintiff was

“not significantly limited” in all other areas.
areas of marked limitation.

(Id.)

He found no

(Id.)

Plaintiff returned to Community Health on April 8, 2008
for testing for hyperglycemia and follow-up related to depression.
(Tr. 366).

She reported that she was feeling much better and

wanted to try counseling to help with depression.

(Id.)

It was

noted that her Cymbalta dosage would be increased if she reported
continuing problems with anger outbursts.

(Id.)

She returned on

April 17, 2008 and requested an increase in her Cymbalta dosage and
prenatal vitamins.
outbursts of anger.

(Tr. 365).

She reported having problems with

(Id.)
-13-

Records from Mid-South Health Systems indicates that
plaintiff was seen in February and March of 2009, stating that she
wanted to talk to someone to vent her anger so that she did not
have to vent it on someone else.

(Tr. 377-380).

Records from Jefferson Regional Medical Clinic indicate
that plaintiff was seen on December 13, 2010 with complaints of
severe abdominal pain. (Tr. 390, 407-08). She specifically denied
back pain.

(Tr. 407).

no other problems.

CT scan revealed a cyst in her pelvis, but
(Tr. 390, 407-08).

Physical examination

revealed that plaintiff was in moderate to severe pain distress.
(Tr.

408).

Musculoskeletal

examination

was

negative,

and

psychiatric examination revealed an appropriate mood and affect.
She was given antibiotics and prescription pain medication

(Id.)

to take as needed.
III.
A.

(Tr. 390).
The Commissioner’s Final Decision

The ALJ’s Decision
The

ALJ

determined

that

plaintiff

had

the

severe

impairments of mood disorder, anxiety, adjustment disorder, and
ADHD, but did not have a mental impairment or combination of
impairments that met or medically equaled a listed impairment,
including listings 12.04, 12.05, and 12.06.

(Tr. 15-16).

The ALJ

determined that plaintiff retained the residual functional capacity
(also “RFC”) “to perform a full range of work at all exertional
levels but with the following nonexertional limitations: she has
borderline IQ but can do simple, unskilled or low, semi-skilled
work; understand, remember and follow concrete instructions; meet,
-14-

greet, give simple instruction and directions, and contact with
supervisors, co-workers and public is superficial.”
The

ALJ

determined

that

plaintiff

(Tr. 17).

was

performing her past relevant work of housekeeper.

capable

(Tr. 20).

of
The

ALJ concluded that plaintiff was not under a disability as defined
in the Act at any time through the date of the decision.
B.

(Tr. 21).

The Appeals Council’s Decision
The

Appeals

Council

adopted

the

ALJ’s statements

regarding, inter alia, the issues in the case, the evidentiary
facts, and his findings or conclusions regarding whether plaintiff
was disabled.
part

of

the

(Tr. 4-5).

These findings by the ALJ are therefore

Commissioner’s

final

decision.

See

Mitchell

v.

Shalala, 48 F.3d 1039, 1040 (8th Cir. 2005) (“The Appeals Council
adopted the ALJ’s ruling in June of 1992, making it the Secretary’s
final decision.”)
The Appeals Council expressly rejected the ALJ’s findings
regarding plaintiff’s ability to return to her past relevant work
as a housekeeper.

The Appeals Council noted that, to be properly

considered past relevant work, a job must have been performed
within the past fifteen years; it must have been performed long
enough for the claimant to learn the work; and the earnings must
rise to the level of substantial gainful activity for the years in
which the claimant performed the work.

(Tr. 5).

The Appeals

Council noted that, over the nine-month period plaintiff worked as
a housekeeper, her earnings equated to approximately $518.00 per
month, an amount less than the substantial gainful activity level
-15-

for the years 2005 and 2006.

(Id.)

The Appeals Council concluded

that plaintiff’s prior employment therefore failed to satisfy the
requirements for past relevant work, and that plaintiff “did not
have any past relevant work and it is necessary to proceed to step
5 of the sequential evaluation process.”

(Id.)

The Appeals Council then wrote:
The claimant is 28 years old, which is defined
as a younger individual, who has a limited or
less education and who has past relevant work
that is of an unskilled nature. An individual
with these vocational factors and the residual
functional capacity to perform work at all
exertional levels with nonexertional mental
limitations is found to be not disabled within
the framework of section 204.00 of 20 CFR Part
404, Subpart P, Appendix 2. At the hearing, a
vocational expert testified that you could
perform the jobs of a hand packager and a
housekeeper. Reference to the Dictionary of
Occupational Titles (DOT) shows that the job
of a hand packager is unskilled and performed
at the medium level (DOT # 920.687-014) and
the job of a housekeeper is unskilled and
performed at the light level (DOT# 323.687014).
(Id.) (emphasis added).
Later

in

its

decision,

in

a

series

of

enumerated

findings, the Appeals Council determined that plaintiff “has no
past relevant work.”

(Tr. 6) (emphasis added).

The Appeals

Council then determined, in the following enumerated finding, that
plaintiff was defined as a younger individual and had a limited or
less education, and that her “past relevant work is unskilled.”
(Id.)

(emphasis

added).

The

Appeals

Council

concluded

that

plaintiff was not disabled, as defined in the Act, at any time

-16-

through the date of the ALJ’s decision.
IV.
The

Social

(Id.)

Discussion

Security

Act

defines

disability

as

the

“inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). An individual
will

be

declared

disabled

“only

if

[her]

physical

or

mental

impairment or impairments are of such severity that [she] is not
only unable to do [her] previous work but cannot, considering [her]
age, education, and work experience, engage in any other 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 presently engaged in substantial gainful activity.
disability benefits are denied.

If so,

Next, the Commissioner decides

whether the claimant has a “severe” impairment or combination of
impairments, meaning that which significantly limits her ability to
do basic work activities.

If the claimant’s impairment(s) is not

severe, then she is not disabled. The Commissioner then determines
whether the claimant’s impairment(s) meet or equal any listed in 20
C.F.R., Subpart P, Appendix 1.

If claimant’s impairment(s) is

-17-

equivalent to a listed impairment, she is conclusively disabled.
At

the

fourth

step,

the

Commissioner

determines

claimant can perform her past relevant work.

whether

the

If so, the claimant

is not disabled.
If the Commissioner determines, at step four, that the
claimant cannot perform her past relevant work, the sequential
evaluation process continues to step five, where the burden shifts
to the Commissioner to show that the claimant is capable of
performing other work.

Pate–Fires v. Astrue, 564 F.3d 935, 942

(8th Cir. 2009); see also Steed v. Astrue, 524 F.3d 872, 874 n. 3
(8th Cir. 2008) (through step four, the claimant bears the burden
of showing that she is disabled.

After the analysis reaches step

five, however, “the burden shift[s] to the Commissioner to show
that there are other jobs in the economy that [the] claimant can
perform.”) Step five requires the Commissioner to consider the
claimant’s residual functional capacity and vocational factors such
as age, education, and work experience to determine whether the
claimant can make an adjustment to other work.
404.1520(a)(4)(v);

416.920(a)(4)(v).

If

the

20 C.F.R. §§
Commissioner

determines that plaintiff cannot perform other work, the claimant
is declared disabled and becomes entitled to disability benefits.
The decision of the Commissioner must be affirmed if it
is supported by substantial evidence on the record as a whole.

42

U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971);
Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002).

Substantial

evidence is less than a preponderance, but enough that a reasonable
-18-

person would find adequate to support the conclusion.
Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
evidence

is

substantial,

this

Court

Johnson v.

To determine whether

considers

“evidence

that

detracts from the Commissioner’s decision as well as evidence that
supports it.”
2000).

McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir.

This Court is not permitted to reverse “merely because

substantial evidence also exists that would support a contrary
outcome, or because we would have decided the case differently.
Jones ex rel. Morris v. Barnhart, 315 F.3d 974, 977 (8th Cir. 2003)
(quoting Davis v. Apfel, 239 F.3d 962, 966 (8th Cir.

2001)); see

also Weikert v. Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992)
(internal quotation marks and citation omitted) (“if 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”).
In the case at bar, plaintiff claims the Commissioner’s
decision is not supported by substantial evidence on the record as
a whole.

In support, plaintiff claims that the Commissioner

erroneously assessed her credibility, and erroneously determined
that she did not meet Listing 12.05(c).

Plaintiff also challenges

the Commissioner’s step five findings, claiming that they were
based on an insufficient hypothetical question posed to the VE. In
response, the Commissioner contends that the decision is supported
by substantial evidence on the record as a whole.
A.

Credibility Determination
In determining the credibility of a claimant’s subjective
-19-

complaints, the Commissioner must consider all evidence relating to
those complaints, including the claimant’s prior work record and
third party observations as to the claimant’s daily activities; the
duration,

frequency

and

intensity

of

the

symptoms;

any

precipitating and aggravating factors; the dosage, effectiveness
and side effects of medication; and any functional restrictions.
Polaski v. Heckler, 739 F.2d 1320, 1321-22 (8th Cir. 1984).
“crucial

question”

is

not

whether

the

claimant

The

experiences

symptoms, but whether her credible subjective complaints prevent
her from working.
Cir. 2003).

Gregg v. Barnhart, 354 F.3d 710, 713-14 (8th

“If the ALJ explicitly discredits the claimant’s

testimony and gives good reason for doing so, we will normally
defer to the ALJ’s credibility determination.” Juszczyk v. Astrue,
542 F.3d 626, 632 (8th Cir. 2008); see also Hogan v. Apfel, 239
F.3d 958, 962 (8th Cir. 2001).

The credibility of a claimant’s

subjective complaints is primarily for the ALJ to decide, and this
Court considers with deference the ALJ’s decision on the subject.
Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005).
In the case at bar, plaintiff argues that her mental
state should have been more fully considered, and that her daily
activities were improperly considered.

In its

decision, the

Appeals Council wrote that it was adopting the ALJ’s findings
regarding the issues in the case, the evidentiary facts, and the
findings or conclusions regarding whether plaintiff was disabled.
Neither party argues that the Appeals Council did not adopt the
ALJ’s credibility findings. As such, the undersigned will consider
-20-

the ALJ’s credibility determination to have been adopted by the
Appeals Council and made part of the Commissioner’s final decision.
In evaluating plaintiff’s credibility, the Commissioner
wrote that he had considered plaintiff’s subjective allegations in
accordance with Polaski and with 20 C.F.R. §§ 404.1529 and 416.929
and certain Social Security Rulings.

The Commissioner then set

forth numerous inconsistencies in the record detracting from the
credibility of plaintiff’s subjective complaints.
Plaintiff suggests that the Commissioner should have more
fully

considered

determination.

her

mental

state

in

making

his

credibility

In support, plaintiff notes that questioning of

inarticulate claimants or claimants with limited education is
likely to elicit inaccurate testimony.

However, before beginning

the administrative hearing, the ALJ explained the hearing procedure
to plaintiff and asked her whether she understood, and plaintiff
replied in the affirmative.

(Tr. 26).

Consistent with this,

review of the questions posed to plaintiff and her responses
thereto reflect that she understood the questions and was providing
coherent responses.

Plaintiff did not ask to have questions

repeated, she did not seek clarification regarding the meaning of
questions, and the answers she gave were responsive and logically
related to the questions asked.
review

of

the

hearing

Plaintiff does not note, nor does

transcript

reveal,

any

questioning

or

testimony tending to suggest that plaintiff had any difficulty
understanding questions or providing coherent answers. There is no
basis to conclude that the ALJ should have in any way mitigated his
-21-

consideration of plaintiff’s hearing testimony.
Plaintiff also complains that the Commissioner improperly
considered her daily activities in discrediting her subjective
complaints.

In support, plaintiff contends that there is nothing

indicating the extent to which her daily activities would be
compatible with work activity, that her work record indicated that
her mental condition kept her from holding down a job, and that she
only

worked

recognized,

for

brief

there

are

periods.
some

As

“mixed

the

Eighth

signals”

Circuit

has

regarding

the

significance of a claimant’s daily activities in evaluating claims
of disabling pain.

Clevenger v. Social Sec. Admin., 567 F.3d 971,

976 (8th Cir. 2009).

However, it is well-settled that an ALJ may

properly consider daily activities as one factor in evaluating the
credibility of a claimant’s

subjective complaints.

Astrue, 503 F.3d 687, 696 (8th Cir. 2007).

Casey v.

This is what the ALJ

did in this case: he considered plaintiff’s daily activities as one
factor in analyzing the credibility of her subjective allegations.
In

his

decision,

the

ALJ

acknowledged

his

duty

to

consider plaintiff’s subjective allegations in accordance with
Polaski, and with 20 C.F.R. §§ 404.1529 and 416.929 and SSRs 96-4p
and

96-7p,

the

regulations

and

social

security

corresponding with Polaski and credibility determination.

rulings
The ALJ

then reviewed the evidence of record and fully explained his
reasoning in concluding that plaintiff’s subjective allegations
were not entirely credible.

The ALJ noted that plaintiff was able

to attend to her own personal needs, care for her young daughter,
-22-

complete some housework, garden, shop, prepare simple meals, watch
television, watch a two-hour movie, read books, newspapers and
magazines, complete puzzles, play video games, and use a computer.
Activities such as those considered in the case at bar have been
observed to be inconsistent with allegations of total disability.
Pirtle v. Astrue, 479 F.3d 931, 933 (8th Cir. 2007) (affirming the
ALJ’s finding that daily activities including shopping, performing
housework such as cooking, cleaning and washing dishes, caring for
personal needs, and caring for children were inconsistent with
allegations of total disability).
Plaintiff also contends that her work record indicated
that her mental condition prevented her from holding down a job.
However, in her Disability Report, plaintiff stated that she
stopped working due to her pregnancy.

(Tr. 236).

The fact that

plaintiff stated that she left work for reasons other than a
condition she now claims is disabling detracts from the credibility
of her subjective allegations.

See Goff v. Barnhart, 421 F.3d 785,

793 (8th Cir. 2005) (claimant stopped working because she was
fired, not because of an impairment); Depover v. Barnhart, 349 F.3d
563, 566 (8th Cir. 2003) (claimant left his job because the job
ended; therefore, not unreasonable for the ALJ to find that this
suggested that his impairments were not as severe as he alleged);
Weber v. Barnhart, 348 F.3d 723, 725 (8th Cir. 2003) (claimant
testified that she stopped working due to a lack of transportation,
not due to an impairment).

Also, plaintiff’s earnings record

reflects a sporadic work history even prior to her alleged onset
-23-

date.

(Tr. 126-27).

While not dispositive, this raises the

question of whether her continued unemployment is actually related
to her alleged impairments or is more a matter of her own choice.
The ALJ noted that, despite plaintiff’s testimony that
she suffered from severe back pain on a daily basis, there was no
medical evidence indicating any kind of back impairment. While the
absence of objective medical evidence to support the degree of
alleged symptoms is not dispositive, it is a relevant factor in
credibility determination, and may be properly considered.

See

Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008); Polaski, 739
F.2d

at

reflects

1321-22.
that

Indeed,

plaintiff

the

sought

complaints on only one occasion.
discredited

when

the

medical

record

medical

information
treatment

of
for

record
back

Claims of disabling pain may be

reflects

minimal

or

conservative

medical treatment. See Barrett v. Shalala, 38 F.3d 1019, 1023 (8th
Cir. 1994) (minimal treatment of back pain and migraine headaches
was inconsistent with claims of disabling pain).

The record also

reflects that plaintiff specifically denied back pain when she
presented to Jefferson Regional Medical Center in December 2010.
See Stephens v. Shalala, 46 F.3d 37, 38 (8th Cir. 1995) (per
curiam) (discrediting later allegations of back

pain when no

complaints made about such pain while receiving other treatment).
Finally, plaintiff testified that she takes no prescription pain
medication, and instead takes only an occasional aspirin.

Where,

as here, there is no attempt to explain plaintiff’s reliance upon
only over-the-counter pain medication, her use of only occasional
-24-

aspirin to manage her allegedly disabling back pain belies her
allegations of debilitating pain. See Harris v. Barnhart, 356 F.3d
926, 930 (8th Cir. 2004).

The evidence of record is inconsistent

with plaintiff’s testimony that she suffered from disabling back
pain all day, every day.
Having considered the Commissioner’s adverse credibility
determination with the requisite deference, on the claims that
plaintiff raises, the undersigned concludes that it is supported by
substantial evidence on the record as a whole.

The ALJ thoroughly

explained his decision-making process in discrediting plaintiff’s
subjective allegations of disabling symptoms, and gave good reasons
for finding plaintiff less than fully credible.

See Juszczyk, 542

F.3d at 632 (“If an ALJ explicitly discredits the claimant’s
testimony and gives good reason for doing so, we will normally
defer to the ALJ’s credibility determination”).
B.

Listing 12.05(c)
Plaintiff

did

not

claim

mental

retardation

in

her

applications for benefits or at the administrative hearing as a
basis for a finding of disability.

Even so, the ALJ in this case

wrote that he had considered whether plaintiff met the requirements
for a finding of disability under Listing 12.05(C), explained his
decision-making process, and concluded that plaintiff did not meet
the

requirements

12.05(C).

(Tr.

for

a

finding

16-17).

of

disability

Plaintiff

now

under

Listing

challenges

this

determination, arguing that a March 2008 I.Q. test administered by
Dr. Lutz yielded a verbal I.Q. score of 70, which meets the first
-25-

prong

of

subsection

C,

and

that

her

mood

disorder,

anxiety,

adjustment disorder and ADHD impose additional and significant
work-related limitations of function that meet the second prong.
Plaintiff also contends that the ALJ made materially inconsistent
statements when he initially wrote that plaintiff lacked a valid
verbal, performance or full scale I.Q. score of 60 through 70 but
later wrote that plaintiff had a verbal I.Q. score of 70.

In

response, the Commissioner acknowledges that a valid verbal I.Q.
score of 70 meets the paragraph C criteria, but that the ALJ
implicitly rejected plaintiff’s I.Q. score of 70 as invalid.
Commissioner

also

contends

that

the

ALJ

was

not

The

obliged

to

investigate this claim because plaintiff failed to present it in
her applications or during the hearing; that plaintiff’s diagnosis
of borderline I.Q. is inconsistent with a finding of disability
based upon mental retardation; that the ALJ was not required to
accept I.Q. scores that are inconsistent with the record; and that
plaintiff specifically stated that she was not disabled before age
22, a mandatory requirement for a finding of disability under
Listing 12.05. Having reviewed the ALJ’s decision, the undersigned
determines

that

plaintiff’s

argument

regarding

the

ALJ’s

inconsistent statements is well taken.
As the Commissioner correctly notes, plaintiff neither
claimed mental retardation in her applications nor raised it during
her administrative hearing.

Nevertheless, the ALJ wrote that he

had considered whether plaintiff met Listing 12.05(C) and described
the manner in which he reached his decision that plaintiff did not
-26-

meet the requirements thereof.

That decision was made part of the

Commissioner’s final decision, which plaintiff is entitled to
challenge here under 42 U.S.C. § 405(g).
Listing

12.05,

the

listing

for

mental

retardation,

defines mental retardation as “significantly subaverage general
intellectual functioning with deficits in adaptive functioning
initially manifested during the developmental period; i.e., the
evidence demonstrates or supports onset of the impairment before
age 22.”

20 C.F.R. Pt. 404, Subpt. P., App. 1, § 12.05 (2006).

The requirements of this introductory paragraph are mandatory.
Maresh v. Barnhart, 438 F.3d 897, 899 (8th Cir. 2006).

Listing

12.05 also contains four sets of criteria, set forth in paragraphs
A through D. If a claimant’s impairment satisfies the requirements
of the introductory paragraph and any one of the four sets of
criteria, the Commissioner will determine that the listing has been
met.

Id. (internal citation omitted).
In the case

at

bar, plaintiff challenges the ALJ’s

decision that she failed to satisfy the paragraph C criteria, which
requires her to demonstrate “[a] valid verbal, performance, or full
scale I.Q. of 60 through 70 and a physical or other mental
impairment

imposing

additional

limitation of function.”

and

significant

work-related

20 C.F.R. Pt. 404, Subpt. P., App. 1, §

12.05(C) (2006)(emphasis added).
In his decision, the ALJ specifically addressed paragraph
C of Listing 12.05 and, in concluding that plaintiff failed to meet
the necessary criteria, wrote:
-27-

Finally, the “paragraph C” criteria of listing
12.05 are not met because the claimant does
not have a valid verbal, performance, or full
scale IQ of 60 through 70 and a physical or
other mental impairment imposing an additional
and significant work-related limitation of
function. The claimant’s verbal IQ score is
70, performance IQ score is 81, and full scale
IQ is 74.
(Tr. 17).
As

plaintiff

contends,

the

ALJ

made

materially

inconsistent statements in concluding that plaintiff lacked an I.Q.
score that would satisfy the first prong of paragraph C.

As quoted

above, the ALJ initially wrote that plaintiff did not have a “valid
verbal, performance, or full scale IQ of 60 through 70” but then,
in the very next sentence, wrote that plaintiff’s “verbal IQ score
is 70.”

(Id.)

The Commissioner acknowledges that such a score

would satisfy the paragraph C criteria, but argues that the ALJ’s
decision can be read to conclude that he implicitly determined that
plaintiff’s

I.Q.

scores

were

not

valid.

However,

the

ALJ’s

decision contains nothing which would allow the conclusion that the
ALJ explicitly or implicitly rejected any of plaintiff’s I.Q.
scores as invalid.

The ALJ specifically wrote that plaintiff’s

“verbal IQ score is 70” (Tr. 17) (emphasis added) without giving
any indication that he had considered the validity of any of the
scores.
scores

The lack of any discussion as to the validity of the I.Q.
combined

with

the

ALJ’s

use

of

the

present

tense

in

describing plaintiff’s verbal I.Q. score of 70 suggests more that
he was accepting the score rather than rejecting it, which is

-28-

entirely inconsistent with his prior observation that plaintiff did
not satisfy the paragraph C criteria because she lacked such a
score. Illogical or erroneous statements that bear materially upon
an ALJ’s ultimate decision undermines confidence in that decision.
See Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996).
The Commissioner also contends that plaintiff could not
meet Listing 12.05 because she failed to demonstrate the mandatory
requirement of onset of mental retardation before age 22, and even
specifically denied that she was disabled before age 22.
the

requirement

of

onset

before

age

22

is

mandatory

determination that a claimant meets Listing 12.05.
F.3d at 899.

Indeed,
for

a

Maresh, 438

However, the ALJ’s decision fails to specifically

address the onset issue, and it contains no language that would
permit the conclusion that the ALJ indeed considered and rejected
it.

It is therefore unclear whether the ALJ considered whether

plaintiff met the onset requirement and rejected it, or whether he
failed to consider it at all.

The ALJ’s failure to address this

issue is especially glaring in light of the inconsistent statements
described above.
Simply put, the ALJ’s conflicting statements create too
much confusion regarding what evidence the ALJ relied upon in
determining that plaintiff failed to meet the paragraph C criteria.
While the undersigned is not determining that plaintiff meets the
12.05

introductory

paragraph

requirements

or

the

paragraph

C

requirements, or that her I.Q. scores were valid and consistent
with the evidence of record, the undersigned cannot conclude that
-29-

the record contains substantial evidence to support the ALJ’s
decision that plaintiff did not meet Listing 12.05(C).
C.

Step Five Findings
Plaintiff also contends that the Commissioner erroneously

relied upon vocational expert testimony in determining that she was
not disabled at step five.

In support, plaintiff argues that the

ALJ’s hypothetical question assumed an individual able to perform
simple unskilled to low semiskilled activities, and who could
understand, follow and remember concrete instructions and have
superficial contact with the public. Plaintiff contends that these
activities are inconsistent with her testimony that she was easily
distracted and frustrated.
that

the

ALJ

properly

In response, the Commissioner contends

assessed

plaintiff’s

credibility,

and

included in his hypothetical question only those limitations he
found credible and supported by the record.
As noted above, the Appeals Council granted plaintiff’s
request for review in this case because it disagreed with the ALJ’s
determination that plaintiff could return to her past relevant
work.

In

so

determining,

the

Appeals

Council

wrote

that

plaintiff’s “prior employment does not satisfy the requirements for
past relevant work” inasmuch as it was not performed at the
substantial gainful activity level as required by the Regulations.
(Tr. 5).

The Appeals Council wrote that it had determined that

plaintiff did not have any past relevant work, and that it was
therefore necessary to proceed to step five of the sequential
evaluation process.

(Id.)

The Appeals Council then acknowledged
-30-

the burden shift at step five, and continued in its decision to
make its step five findings.

However, as quoted above, in making

its step five findings, even though the Appeals Council had just
determined that plaintiff did “not have any past relevant work,” it
wrote that it had considered the fact that plaintiff had “past
relevant work that is of an unskilled nature.”

(Id.)

Later in its

decision, in its enumerated findings, the Appeals Council again
wrote that plaintiff had “no past relevant work” but then wrote
that her “past relevant work is unskilled.”

(Tr. 6).

The term “past relevant work” is a term of art in Social
Security Disability cases.

It is specifically defined in the

Commissioner’s Regulations at 20 C.F.R. §§ 404.1560(b)(1) and
416.960(b)(1), entitled “Definition of past relevant work.”

That

definition reads as follows: “Past relevant work is work that you
have done within the past 15 years, that was substantial gainful
activity, and that lasted long enough for you to learn to do it.”
Id.; see also Mueller v. Astrue, 561 F.3d 837, 841 (8th Cir. 2009)
(recognizing the Regulations’ definition of past relevant work).
Significant is the fact that the ALJ’s erroneous determination that
plaintiff had past relevant work and could return to it was the
reason the Appeals Council granted plaintiff’s request for review;
it was the basis for the Appeals Council’s rejection of the ALJ’s
step four conclusion; and it was the reason the Appeals Council
continued

the

sequential

evaluation

process

to

step

five.

Moreover, the Appeals Council made no attempt to describe the “past
relevant work” it was considering in making its step five findings,
-31-

leaving it unclear exactly

what activity the Appeals Council

considered in reaching its conclusion.
As noted above, at step five, the Commissioner considers
the vocational factors of age, education and “work experience.” 20
C.F.R. §§ 404.1520(a)(4)(v); 416.920(a)(4)(v).

It is possible

that, when the Appeals Council used the term “past relevant work”
in making its step five findings, what it was actually referring to
was the vocational factor of “work experience” as provided in the
Regulations.

However, this would be equally incongruous with the

Appeals Council’s determination that plaintiff’s past work could
not be considered “past relevant work” because she did not perform
it at the substantial gainful activity level as the Regulations
require.

The Regulations define “work experience” in a manner

similar to “past relevant work.”
416.965(a).

See 20 C.F.R. §§ 404.1565(a),

The Regulations provide that “Work experience means

skills and abilities you have acquired through work you have done
which show the type of work you may be expected to do.

. . .

We

consider that your work experience applies when it was done within
the last 15 years, lasted long enough for you to learn to do it,
and was substantial gainful activity.”

Id. (emphasis added).

The

Appeals Council had specifically determined that plaintiff did not
perform her prior work at the substantial gainful activity level.
The Appeals Council’s decision does not explain how any of the work
plaintiff had performed could qualify as either “past relevant
work” or “work experience” as those terms are defined by the
Commissioner’s Regulations.

It is therefore entirely unclear what
-32-

activity the Appeals Council considered in making its step five
findings.
The

Appeals

irreconcilable.

Council’s

findings

are

inconsistent

and

These inconsistencies cannot be dismissed as mere

errors in opinion writing.

See Benskin v. Bowen, 830 F.2d 878, 883

(8th Cir. 1987) (a deficiency in opinion-writing technique is not
a sufficient reason for setting aside an administrative finding
when it probably had no practical effect on the outcome of the
case).

In

this

case,

the

Appeals

Council’s

inconsistent

consideration of plaintiff’s past relevant work bears materially
upon the conclusion it reached at step five.

It therefore cannot

be said that the Commissioner’s step five findings are supported by
substantial evidence on the record as a whole.

See Sarchet, 78

F.3d at 307 (illogical or erroneous statements that bear materially
upon an ALJ’s ultimate decision undermines confidence in that
decision).

Having found the step five findings deficient on this

basis, the undersigned declines to continue to consider plaintiff’s
argument that the step five findings were deficient because the ALJ
posed an insufficient hypothetical question to the VE.
Therefore, for all of the foregoing reasons,
IT
Commissioner

IS
is

HEREBY
reversed,

ORDERED
and

that

this

the

cause

is

decision
remanded

of
to

the
the

Commissioner for proceedings consistent with this Memorandum and
Order.
_______________________________
Frederick R. Buckles
UNITED STATES MAGISTRATE JUDGE
Dated this 14th day of September, 2012.
-33-