Johnsen v. Astrue
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
ALICE M. JOHNSEN,
MICHAEL J. ASTRUE, Commissioner )
of Social Security,
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).
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.
(“ADD”), and depression.
In her application for SSI,
plaintiff averred that she was not disabled prior to age 22.
Plaintiff’s applications were denied initially and upon
administrative law judge (“ALJ”) which was held on December 1,
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.
On April 7, 2011, the Appeals
Council issued an unfavorable decision, finding that plaintiff was
not disabled under the Act.
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).
Evidence Before The Commissioner
plaintiff, age 28, testified that she had left school in the
eleventh grade, that she was married, and that she had a young
She testified that she and her husband and
daughter lived with her husband’s parents, both of whom were
She testified that she stopped trying to get
her G.E.D. due to frustration.
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
city streets, and also because gas was expensive.
Plaintiff testified that she received food stamps.
She did not have a driver’s license because she failed the written
license examination on two occasions.
Plaintiff earned grades of A and B in middle school, but
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.
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.
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.
She testified that she became sidetracked while trying to do
household chores and needed reminders.
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.
After leaving high school,
plaintiff worked as an in-home housekeeper; at South County Nursing
Silverleaf Club as a housekeeper.
Plaintiff testified that she used to use marijuana “every
once in a while” but had not used it since she was married in May
She testified that she had not had any
medication prescribed for her in “quite some time.”
She testified that she could run or jump for a
little while, and could lift and carry 20 pounds once or twice per
She stated that she could push and pull a grocery
cart, could balance and climb, and could bend over for a short
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
She stated that she became a little upset when she
heard bad news.
She testified that she became sidetracked
at work and needed someone to help her.
testified that she had Attention Deficit Disorder and could not
keep her mind on what she was trying to do.
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.”
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.
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.
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
She stated she did not take any medications to
help the pain because she “didn’t want it.”
testified that she smoked cigarettes, and that she drank alcohol
occasionally but never used illegal drugs.
Plaintiff then responded to questions from the ALJ.
Plaintiff initially denied that she had used cocaine, but when the
methamphetamine, plaintiff testified that she had tried cocaine and
methamphetamine one time but not again.
exception of two aspirin every other day to dull the pain in her
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.
The ALJ then heard testimony from the vocational expert
The ALJ asked the VE to consider an individual of
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
The VE testified that these
jobs had Specific Vocational Preparation (“SVP”)1 levels of two,
which corresponded to the fourth through the sixth grade.
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.
Medical and Other Evidence
The administrative record includes school records from
Vineland Elementary School in De Soto, Missouri.
Plaintiff was enrolled in special education programs beginning in
It is indicated that an Individualized
Educational Program (also “IEP”) was implemented for plaintiff when
she was six and one-half years of age.
It is noted
that plaintiff had delays in expressive and receptive language
development and difficulty following directions, and she appeared
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.
noted that she had made good progress in reading, and that her math
skills were at a second-grade level.
In plaintiff’s sixth
grade year, her school reported that she exhibited disrespectful
“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.
behavior in class, and had mood swings and temper outbursts.
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.
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.”
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.
In her tenth
grade year, she was working in the school cafeteria and was keeping
up her classes.
It was noted that her full-scale I.Q.
was 68, and that she performed significantly better on nonverbal
than on verbal reasoning tasks.
She was noted to be easily
frustrated with people who disagreed with her or made negative
comments to her.
an annual goal.
Increasing career awareness was listed as
science, and an art class.
In her eleventh grade year, it was
It is noted that plaintiff
opportunity to meet with a vocational rehabilitation representative
and go through career interest and aptitude testing.
noted that plaintiff worked best in a structured setting with few
encouragement to continue working.
Long-term goals for
plaintiff were noted as choosing a career direction, and taking the
necessary steps for job training.
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.
On October 15, 1996, Ms. Nadine Sebastian, plaintiff’s
classroom teacher, completed a Diagnostic Summary.
Ms. Sebastian noted that plaintiff had suffered complications
Ms. Sebastian noted that plaintiff’s
cognitive ability was within the intellectually deficient range,
and that plaintiff performed better on
nonverbal than verbal
Ms. Sebastian concluded that plaintiff met
the eligibility criteria to be classified as mildly mentally
In a Disability Report, plaintiff wrote that she suffered
from ADHD, AADD, and depression.
She explained that
she had difficulty getting along with others, was easily confused
and frustrated, had trouble reading due to dyslexia, and was
She wrote that she stopped working
on September 1, 2006 “due to [her] pregnancy.”
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.
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.
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.
Plaintiff had a normal gait
She was given a muscle relaxant
and instructed to return in two weeks if there was no improvement.
On December 21, 2006, plaintiff returned to Community
Health with complaints of bilateral earache, migraine headache, and
pain with swallowing.
She reported that she was
She was diagnosed with tonsillitis and given an
Plaintiff returned on March 8, 2007 with
complaints of a sore throat, runny nose, migraine, nausea, fatigue,
weakness, and ear pain.
She was seven months pregnant.
She was diagnosed with sinusitis and given an antibiotic.
On April 2, 2007, plaintiff returned to Community Health for
reasons unrelated to the case at bar.
complain of back pain.
She did not
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.
reported that her baby was born eight weeks premature, and that she
was under a lot of stress because she was traveling from her home
to the hospital to see the baby.
She was referred for
She returned on July 11, 2007 with complaints
of severe bladder pain and trouble with urination.
reported that she had a lot of pain with her menstrual period, and
was starting her period at that time.
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
(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.
Plaintiff returned on August 15, 2007 for
follow up on medications.
She reported pain in her
ears and throat, cough, congestion, and hoarseness. (Id.) She was
diagnosed with depression and middle ear fluid.
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.
findings were noted.
She was diagnosed with
She returned the following day, and the same
Plaintiff returned on November
28, 2007 for “medications change,” and complained of a cough. (Tr.
She noted that she was having more outbursts.
Prozac, or Fluoxetine, is used to treat depression,
obsessive-compulsive disorder, some eating disorders, and panic
February 25, 2008, she reported fever, aches and pains, ear pain,
sneezing, runny nose/congestion, and productive cough.
She was diagnosed with influenza.
In a Function Report dated January 10, 2008, plaintiff
reported that she was able to do laundry, make beds/change sheets,
indicated that she could shop for about two and one-half hours or
She indicated that she could watch a two-hour movie
but would shake her leg and rock.
She wrote that she
read “books, newspapers, magazines, etc” but could only read for a
Plaintiff returned to Community Health on March 20, 2008
for medication change and a diabetes test.
alert, active, and in no acute distress.
She was given
On March 27, 2008, Clinical Psychologist David Lutz,
Ph.D., completed a Consultative Examination Report.
Plaintiff reported mood swings and trouble staying focused.
She reported that she was an average student, attended
special education classes, and primarily earned grades of A and B.
She reported that she was suspended from school on
several occasions for cursing at teachers, fighting, and leaving
She reported that she had previously used illicit
Cymbalta, or Duloxetine, is used to treat depression and
generalized anxiety disorder.
drugs, including marijuana, cocaine, and methamphetamine, but not
Plaintiff reported that she was taking Cymbalta.
She reported back problems and migraine headaches.
Dr. Lutz noted that plaintiff was cooperative, responsive
and sufficiently pleasant, but seemed to have little energy or
Dr. Lutz also noted that it seemed likely
that it would take little to irritate plaintiff.
administered the Wechsler Adult Intelligence Scale test (also
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).
perceptual organization was in the low average range; and her
working memory was in the extremely low range.
opined that plaintiff had borderline intellectual functioning, and
that plaintiff’s Global Assessment of Functioning (“GAF”) score was
65, indicating mild symptoms.
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
He opined that plaintiff seemed able to
interact in limited to possibly some moderately demanding social
situations, and seemed able to adapt to her environment.
Plaintiff returned to Community Health on March 28, 2008
for medications and a repeat blood glucose test, and complained of
She was in no acute distress.
returned on April 2, 2008 with complaints of right ankle pain after
X-ray revealed no fracture.
was given an over-the-counter analgesic.
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,
remember, and carry out detailed
Dr. Spence opined that plaintiff was
“not significantly limited” in all other areas.
areas of marked limitation.
He found no
Plaintiff returned to Community Health on April 8, 2008
for testing for hyperglycemia and follow-up related to depression.
She reported that she was feeling much better and
wanted to try counseling to help with depression.
noted that her Cymbalta dosage would be increased if she reported
continuing problems with anger outbursts.
She returned on
April 17, 2008 and requested an increase in her Cymbalta dosage and
outbursts of anger.
She reported having problems with
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.
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
no other problems.
CT scan revealed a cyst in her pelvis, but
(Tr. 390, 407-08).
revealed that plaintiff was in moderate to severe pain distress.
psychiatric examination revealed an appropriate mood and affect.
She was given antibiotics and prescription pain medication
to take as needed.
The Commissioner’s Final Decision
The ALJ’s Decision
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.
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,
greet, give simple instruction and directions, and contact with
supervisors, co-workers and public is superficial.”
performing her past relevant work of housekeeper.
ALJ concluded that plaintiff was not under a disability as defined
in the Act at any time through the date of the decision.
The Appeals Council’s Decision
regarding, inter alia, the issues in the case, the evidentiary
facts, and his findings or conclusions regarding whether plaintiff
These findings by the ALJ are therefore
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
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.
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
for the years 2005 and 2006.
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.”
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).
findings, the Appeals Council determined that plaintiff “has no
past relevant work.”
(Tr. 6) (emphasis added).
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.”
plaintiff was not disabled, as defined in the Act, at any time
through the date of the ALJ’s decision.
“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
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).
Commissioner engages in a five-step evaluation process.
C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-42
The Commissioner begins by deciding whether the claimant
is presently engaged in substantial gainful activity.
disability benefits are denied.
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
equivalent to a listed impairment, she is conclusively disabled.
claimant can perform her past relevant work.
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.
20 C.F.R. §§
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.
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).
evidence is less than a preponderance, but enough that a reasonable
person would find adequate to support the conclusion.
Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
To determine whether
detracts from the Commissioner’s decision as well as evidence that
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.
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
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
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.
In determining the credibility of a claimant’s subjective
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
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).
symptoms, but whether her credible subjective complaints prevent
her from working.
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.
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
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
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.
Consistent with this,
review of the questions posed to plaintiff and her responses
thereto reflect that she understood the questions and was providing
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.
Plaintiff does not note, nor does
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
consideration of plaintiff’s hearing testimony.
Plaintiff also complains that the Commissioner improperly
considered her daily activities in discrediting her subjective
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
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
Astrue, 503 F.3d 687, 696 (8th Cir. 2007).
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.
consider plaintiff’s subjective allegations in accordance with
Polaski, and with 20 C.F.R. §§ 404.1529 and 416.929 and SSRs 96-4p
corresponding with Polaski and credibility determination.
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,
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.
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
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.
Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008); Polaski, 739
complaints on only one occasion.
Claims of disabling pain may be
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.
as here, there is no attempt to explain plaintiff’s reliance upon
only over-the-counter pain medication, her use of only occasional
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”).
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
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
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.
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.
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
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
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).
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
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).
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
Id. (internal citation omitted).
In the case
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
limitation of function.”
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:
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.
inconsistent statements in concluding that plaintiff lacked an I.Q.
score that would satisfy the first prong of paragraph C.
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
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
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
The lack of any discussion as to the validity of the I.Q.
describing plaintiff’s verbal I.Q. score of 70 suggests more that
he was accepting the score rather than rejecting it, which is
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.
determination that a claimant meets Listing 12.05.
F.3d at 899.
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 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
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
requirements, or that her I.Q. scores were valid and consistent
with the evidence of record, the undersigned cannot conclude that
the record contains substantial evidence to support the ALJ’s
decision that plaintiff did not meet Listing 12.05(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.
In response, the Commissioner contends
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
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.
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
The Appeals Council then acknowledged
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.”
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.”
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.”
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
Moreover, the Appeals Council made no attempt to describe the “past
relevant work” it was considering in making its step five findings,
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
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
The Regulations define “work experience” in a manner
similar to “past relevant work.”
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.
. . .
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).
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
It is therefore entirely unclear what
activity the Appeals Council considered in making its step five
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
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
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,
Commissioner for proceedings consistent with this Memorandum and
Frederick R. Buckles
UNITED STATES MAGISTRATE JUDGE
Dated this 14th day of September, 2012.
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