Young v. Astrue

Filing 24

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the final decision of the Commissioner denying social security benefits be AFFIRMED. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by Magistrate Judge Terry I. Adelman on 9/26/2012. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SHERRI L. YOUNG,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

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No. 4:11CV1132 TIA

MEMORANDUM AND ORDER
This matter is before the Court under 42 U.S.C. §§ 405(g) for judicial review of the denial
of Plaintiff’s application for Disability Insurance Benefits under Title II of the Social Security Act.
The parties consented to the jurisdiction of the undersigned pursuant to 28 U.S.C. § 636(c).
I. Procedural History
On December 17, 2008, Plaintiff filed an application for Disability Insurance Benefits (“DIB”),
alleging disability beginning October 1, 2008 due to neuropathy in both legs, chronic fatigue,
malabsorption, low B12, sarcoidosis, memory fog, angina, irritable bowel, migraines, hypertension,
constant shooting pains, burning sensations, and numbness in both legs. (Tr. 87, 130-31) Plaintiff’s
application was denied on January 31, 2009, after which Plaintiff requested a hearing before an
Administrative Law Judge (ALJ). (Tr. 86-90, 127) On January 8, 2010, Plaintiff appeared and
testified at a hearing. (Tr. 23-85) In a decision dated February 22, 2010, the ALJ determined that
Plaintiff had not been under a disability from October 1, 2008 through the date of the decision. (Tr.
8-17) The Appeals Council denied Plaintiff’s Request for Review on April 26, 2011. (Tr. 1-3) Thus,
the decision of the ALJ stands as the final decision of the Commissioner.

II. Evidence Before the ALJ
At the hearing before the ALJ, Plaintiff was represented by counsel. Plaintiff’s attorney
provided an opening statement regarding the theory of the case. Counsel indicated that Plaintiff was
a 47-year-old individual who suffers from serious impairments, emotionally, psychologically, mentally,
and physically. Plaintiff was taking 10 different prescription medications, along with 1000 milligrams
of ibuprofen twice daily. Plaintiff’s treating physician, Dr. Cadiz, provided his opinion regarding
Plaintiff’s residual functional capacity (“RFC”), and records from Robin Patton substantiated
Plaintiff’s complaints of emotional and psychological impairments. Counsel further stated that
Plaintiff had consistently worked throughout her life, but her impairments took her out of the labor
market. In light of the records from Dr. Cadiz and Ms. Patton, as well as Plaintiff’s testimony,
counsel argued that Plaintiff was clearly unable to engage in any sort of substantial, gainful
employment. (Tr 31-33)
The ALJ then questioned the Plaintiff, who testified that she was born on November 24, 1962;
measured 5 feet, 5 ½ inches tall; and weighed 220. She had gained about 25 to 30 pounds since
2008, which she attributed to stress, inability to be physically active, and medication. Plaintiff was
married with two children, ages 23 and 18. She lived in a one story home with a lower level. She
was able to walk down the stairs but had problems walking back up. In addition, she had fallen down
the stairs because her left leg and foot went numb, causing her to misstep. She also experienced this
while walking about once a month. Plaintiff had a driver’s license but did not drive very often.
Usually someone drove her places, although she only traveled a couple blocks from home. Plaintiff
attended college at Jefferson Junior College but did not earn a degree. She also took classes at St.
Louis University. At the time of the hearing, Plaintiff did not work or volunteer her time. She had
2

not sought unemployment benefits or worker’s compensation. Her husband worked, and she had
health insurance through him. Plaintiff received no public assistance or any other source of income.
(Tr. 33-38)
Plaintiff was last employed on October 4, 2008 as a customer life-cycle management worker
at Convergys. She took phone calls from dissatisfied customers and tried to retain their business.
Plaintiff left voluntarily because she was ill, and she was caring for her mother, who was diagnosed
with cancer. Plaintiff would visit her mother in the hospital and make decisions regarding treatment.
She was unable to physically care for her mother. Plaintiff also previously worked at Jefferson
Memorial Hospital as a ward clerk and operational assistant. These positions were part-time, and she
worked both concurrently to have full-time employment. As a ward clerk, her duties included
making sure the forms were stocked, answering call lights to patients’ rooms, sending in nurses, and
directing family members to the correct rooms. Plaintiff’s job as an operational assistant entailed
doing payroll, personnel documentation, and other clerical work. She left that job to work for
Convergys, which paid more. (Tr. 38-40)
In addition, Plaintiff worked for American Roofing Exteriors as the office manager. Her
duties included payroll, accounts receivable, accounts payable, hiring and firing, and managing
personnel. This job lasted a little over a year. Plaintiff left because her employer was losing income.
Plaintiff also worked several different jobs through Workforce, a temporary agency, performing
clerical work. Other jobs included executive director at the De Soto Chamber of Commerce for two
years; temporary clerical work at AA Mobile Home Sales; administrative assistant at Twin City Area
Chamber of Commerce; administrative assistant at Carondelet Corporation; and administrative
assistant at the YMCA. (Tr. 40-46)
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Plaintiff testified that she could no longer perform her past work as an administrative assistant
because she was not physically capable. She stated that during the day, she would get up, take a
shower, lay down, get dressed, lay down again, then fix her hair. Plaintiff explained that she was
unable to tell an employer she could work Monday through Friday because she did not know whether
she could work even one full eight-hour shift. She described good days and bad days, but during a
typical day, Plaintiff took 2 naps. Plaintiff did not drink alcohol or use illegal drugs. (Tr. 46-47)
Plaintiff’s attorney also questioned the Plaintiff regarding her impairments. Plaintiff stated that
she left her job at Convergys because she was dealing with fatigue and leg pain. She had to sit in the
call center and was not allowed to walk and stretch her legs. In addition, she had trouble
remembering certain aspects of her job, and she was worried about her mother’s illness, which caused
problems with concentration. Plaintiff testified that her past clerical jobs required concentration,
memorization, and alertness. Plaintiff’s longest employment was from 1987 to 1994 at ABBCombustion Engineering. She had very little earnings in 1995 and 1996 because she had a tumor in
her liver and had major surgery. Her daughter was also struggling with asthma. Other than those
two years, Plaintiff was always employed through October of 2008. (Tr. 48-51)
With regard to Plaintiff’s physical complaints, she testified that her biggest complaint was
pain. She had pain in her feet, legs, arms, neck, and back. Dr. Cadiz indicated that she suffered from
neuropathy, which Plaintiff described as a “dying of the nerves.” Her symptoms included sharp,
shooting pains in her legs, which sometimes felt as if she were walking on crushed glass. In addition,
her left leg and foot sometimes went numb. On a scale of one to ten, Plaintiff rated the pain in her
lower extremities as a 7 or 8 with medication. On certain days without medication, Plaintiff’s pain
was a 10, and it shot from her leg down to her foot like an electrical current. Plaintiff also stated that
4

Dr. Cadiz diagnosed fibromyalgia, which affected her arms, neck, and back. She described the pain
as a flu-like feeling where everything hurts and throbs sometimes. Plaintiff experienced these
symptoms every day, and the pain level was a 7 or 8 out of 10 with medication. (Tr. 51-55)
Plaintiff further testified that Dr. Cadiz also diagnosed sarcoidosis, which was a sister disease
to Hodgkin’s disease. Plaintiff described it as an immune system disease that caused calcification on
connective tissue, including Plaintiff’s lungs. With regard to mental impairments, Plaintiff stated that
she dealt with anxiety attacks, tearfulness, and forgetfulness. She felt like a burden on her family
because she was unable to function. Plaintiff was unable to balance a checkbook or understand what
she was reading. She stated that a B12 deficiency caused her memory problems. On a couple
occasions, she drove her car and could not remember how to get to her destination. (Tr. 55-58)
Plaintiff opined that she could stand for 15 or 20 minutes before experiencing pain and fatigue,
requiring her to sit down. She could sit for 10 to 20 minutes but had to readjust and get up. During
the day, Plaintiff sat in a recliner with her feet up. She did not lift and carry items; however, she could
carry a couple of grocery items from the garage to the house. She needed to set down a gallon of milk
before reaching the kitchen.

Plaintiff could drive only about 6 blocks in town because she

experienced pain pressing the gas and brakes, as well as sitting for too long. (Tr. 58-60)
Dr. Cadiz treated Plaintiff with oral prescription medication and injections. Plaintiff took 10
prescriptions on a daily basis. Her newest medication caused dizziness and nausea. Other
medications caused nausea if she did not eat something first. She was unable to take prescription
narcotics because she was allergic to that type of medication. (Tr. 58-63)
With regard to daily activities, Plaintiff testified that her daughter and husband did the
majority of cooking. Once a week, Plaintiff was able to cook a simple dinner such as soup or
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sandwiches. She was unable to stand over an oven or peel potatoes. Her family also cleaned the
house. Her daughter vacuumed, and her husband mopped the floors. Plaintiff could pick up light
items and occasionally do a load of laundry. She was able to go to the grocery store to pick up a few
things; however, her husband or daughter accompanied her if she was shopping for a week’s worth
of groceries. At the store, Plaintiff used the riding cart because she was unable to walk through the
entire store. Plaintiff could not perform any yard work. She was able to shower and dress herself,
and sometimes she could hold her arms up long enough to use a curling iron. On a good day, Plaintiff
was tired by mid-morning and took a nap. She then watched TV and fell asleep in the recliner until
mid-afternoon. She napped anywhere from 20 to 40 minutes each time. Plaintiff testified that she
agreed with Dr. Cadiz she would need a half hour of rest for every hour of prolonged sitting or
standing, although she did not think she could stand for an hour. Further, she stated that she did not
leave her house often because she did not want to cry in public, and there was not much to do in De
Soto during the day. (Tr. 63-65)
Plaintiff did not feel she could return to any job she performed in the past because she could
no longer remember things, and trying to read and learn was difficult. Physically she was unable to
do those jobs because she did not know what pain level she would experience each day. Of her past
jobs, her part-time position at the YMCA was the least stressful and demanding job. However, she
could no longer perform that job because she had to give tours of the facility and use a computer
program to handle payroll. Plaintiff further stated she had a short fuse with the public and that she
did not like crowds. In addition, she was unable to handle stressful situations with superiors and
would likely tell them to jump off a bridge if they were upset. The only job Plaintiff felt she could do
was one where the employer was flexible and allowed her to come to work only if she felt okay. In
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addition, her inability to remember things would cause a problem. Although Plaintiff always held
important jobs in which people relied upon her, she stated that her combined mental and physical
condition was getting worse. She stated that Dr. Cadiz and Ms. Patton were working together with
regard to Plaintiff’s diagnoses and prescription treatment. (Tr. 66-70)
Upon further questioning by the ALJ, Plaintiff testified that Ibuprofen helped to allow her to
dress and walk, but the pain never went away. Her primary care physician, Dr. Cadiz, prescribed the
psychotropic medications, as Plaintiff was not seeing a psychiatrist. Plaintiff saw Ms. Patton for
counseling. (Tr. 70-71)
Brenda Young, a vocational expert (“VE”), also testified at the hearing. Ms. Young stated
that Plaintiff’s past work as a customer service representative was classified as sedentary and
semiskilled work, while her job as an executive director of the chamber of commerce was sedentary
and skilled. In addition, the office manager’s job was classified as skilled and sedentary, although the
work was light and semiskilled. Plaintiff’s temporary clerical jobs were semiskilled and sedentary to
light. Ms. Young noted that some of Plaintiff’s executive administrative positions were performed
at the skilled level and ranged from light to sedentary. (Tr. 71-73)
The ALJ then asked Ms. Young to assume a hypothetical individual of Plaintiff’s age,
education, and work experience. The individual was limited to light work; required a sit/stand option
every hour but remains on task; could use foot-controlled operations occasionally, was unable to
climb ladders, ropes, or scaffolds; could occasionally climb ramps or stairs; could never crawl; should
avoid all exposure to moving machinery, unprotected heights, and hazardous machinery; and could
only occasionally interact with the public. Given this hypothetical, the VE testified that the individual
would be unable to perform her past relevant work because Plaintiff’s jobs were performed at the
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skilled level and higher end of the semiskilled range. However, there were other jobs in the national
and local economy which the individual could perform in the light work category. Such jobs included
small product assembly positions and file clerk positions. (Tr. 73-75)
In a second hypothetical, the ALJ asked the VE to assume the same individual but limited to
a complete inability to use any foot control operations. This person could only occasionally make
decisions or tolerate changes in a work setting. Given this hypothetical, the person could still perform
the previously mentioned jobs. If the individual required a sit/stand option every 30 minutes with no
interaction with the public, the assembly and file clerk jobs would still remain. In addition, the
individual could perform sedentary assembly jobs. However, if the person had to leave her work
station at any time to walk around or took more than the allotted breaks, no jobs would be available.
(Tr. 75-77)
Plaintiff’s attorney also questioned the VE and added limitations including weakness and
limited motion in the individual’s shoulders, as well as paresthesis of her fingers, which occasionally
affected grip and motor strength. The VE responded that those limitations would eliminate the
assembly and file clerk jobs. In addition, she would not be employable if she missed an average of
3 days a month due to illness. (Tr. 78-84)
In a Disability Report, Plaintiff stated that she was unable to work due to neuropathy in both
legs, chronic fatigue, malabsorption, low B12, sarcoidosis, memory fog, angina, irritable bowel
syndrome, migraines, hypertension, constant shooting pains, burning sensations, and numbness in
both legs. She stated that she could not sit for more than one hour or stand for more than 15-20
minutes. She stumbled and lost balance when walking, and she had problems typing due to joint pain.
Plaintiff further reported an inability to recall instructions. Some days she could not get out of bed
8

due to pain. Fatigue made it impossible to do more than shower and get dressed. Plaintiff stopped
working because of her condition. (Tr. 149-50)
In a Function Report – Adult dated December 26, 2008, Plaintiff described her daily activities
as showering and dressing, sometimes cooking, resting in bed, moving to recliner to read or watch
TV, taking a bath, putting on PJ’s, and going to bed. Her husband and daughter did laundry, grocery
shopped, picked up house, and did 90% of the cooking. Plaintiff could sometimes fix a sandwich or
microwave a meal. She occasionally loaded the dishwasher and swept the floor. She shopped for
prescriptions and groceries as needed. She socialized with others and tried to attend church weekly.
(Tr. 181-88)
III. Medical Evidence
From January to September of 2008, Plaintiff was treated at the Draves Family Practice.
Plaintiff primarily complained of cold symptoms. Her sarcoidosis was under control. (Tr. 211-15)
On November 4, 2008, Plaintiff began treatment with Dr. Briccio Cadiz M.D. Plaintiff
complained of chest pain/palpitations; pain in her left arm with walking; shooting pain in her legs and
feet; muscle pain and weakness; constant fatigue; and sleep disturbances. Dr. Cadiz assessed
suspected mitral valve prolapse; elevated platelets; sarcoidosis1;fatigue; B12 deficiency; and
neuropathy. (Tr. 282-83) On that same date, Plaintiff underwent blood testing, which was highly
suggestive of primary hyperparathyroidism. (Tr. 237-38) Tests performed on November 6, 2008
revealed left atrial enlargement, mild pulmonary hypertension, reversal of E to A ratio, and estimated
ejection fraction of 65-70%. (Tr. 241-41)

1

define this.
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On December 16, 2008, Plaintiff reported that she felt better and was sleeping better.
However, she still had some leg discomfort and a lot of fatigue. Dr. Cadiz assessed B12 deficiency;
hypertension; fatigue; and fibromyalgia trigger points at elbows, neck, low back, and knees. (Tr. 28182)
Plaintiff returned to Dr. Cadiz on January 20, 2009 for a follow-up visit. She reported feeling
better and more alert. Dr. Cadiz assessed B12 and vitamin D deficiencies, fatigue, subclinical
hypothyroidism, and hypertension. (Tr. 280-81) During an April 21, 2009 appointment, Plaintiff
complained of pain in her legs and feet, especially at night. She also reported feeling better. Physical
exam revealed an abnormal cardiac tachycardia, abnormal reflexes, and an abnormal sensory exam.
(Tr. 279-80)
On March 27, 2009 the Plaintiff began treatment with Robin Patton, a certified therapist at
Ray of Hope Counseling. Plaintiff reported trouble sleeping, pain in both legs and feet from
neuropathy and fibromyalgia, and physical fatigue. She also stated that she was easily angered and
depressed because of pain and that she was stressed due to an overbearing mother. Ms. Patton noted
that Plaintiff was talkative, pleasant, anxious at times, neatly dressed, tearful, and depressed and sad.
Ms. Patton worked with Plaintiff on positive thinking methods and relaxation techniques and planned
to continue support. (Tr. 267)
On April 24 and May 28, 2009, Plaintiff was talkative, pleasant, anxious at times, and tearful,
with good eye contact. Ms. Patton noted that Plaintiff was dealing with physical ailments and issues
with her mother. (Tr. 268-69) On June 26, 2009, Plaintiff could not walk one flight of stairs to Ms.
Patton’s office, so they met on the ground floor. Plaintiff had packed a picnic for her daughter’s
birthday party, which had been too much for her. Plaintiff reported being tired of dealing with her
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illness. She was not as talkative as usual. (Tr. 270)
On July 17, 2009, Plaintiff returned to Dr. Cadiz for a regular check up and to follow up on
blood work. She complained of pain in her legs and down both arms. Physical examination revealed
abnormal findings with regard to strength, range of motion, and stability. Dr. Cadiz noted trigger
points in Plaintiff’s legs, shoulder, and arms, as well as decreased temperature in her lower legs. Dr.
Cadiz assessed vitamin D and B12 deficiencies, hypothyroidism, questionable fibromyalgia in her
upper arms, and sarcoidosis. (Tr. 279)
Robin Patton noted on August 28, 2009 that the Plaintiff was again unable to walk the flight
of stairs to Ms. Patton’s office. Plaintiff was upset, tearful, and anxious. She recalled the sexual
molestation that she suffered as a small child from a family member. Plaintiff further reported that
she did not go shopping because she could not control her tears and did not want to be embarrassed.
Plaintiff was taking her husband’s Paxil, and Ms. Patton advised her to see her physician to get her
own prescription antidepressant. Ms. Patton also noted that Plaintiff was in obvious pain and was
limping. (Tr. 271)
On September 25, 2009 Ms. Patton noted that Plaintiff was able to climb the stairs and that
she was doing “a little better emotionally.” Plaintiff’s anxiety attacks had subsided with medication.
Plaintiff was talkative and appropriately dressed, with good eye contact and an obvious limp. (Tr.
288)
Plaintiff presented for a regular check up with Dr. Cadiz on October 16, 2009. She
complained of continuing pain in her feet and in her legs. She also reported seeing a counselor, Robin
Patton, for anxiety issues and also reported a diagnosis of post-traumatic stress disorder (“PTSD”)
and depression. Plaintiff described her pain as tingling, shooting, jerking, and aching. Physical
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examination revealed abnormal range of motion and abnormal sensory exam with decreased sensation,
temperature, and vibration in her legs. Dr. Cadiz assessed hypertension, PTSD, neuropathy,
fibromyalgia, and vitamin D deficiency. (Tr. 278-79)
Ms. Patton opined in a medical source statement dated December 17, 2009 that Plaintiff had
marked limitations in her ability to understand, remember, and carry out simple instructions;
understand and remember complex instructions; carry out complex instructions; and make judgments
on complex work-related decisions. Ms. Patton explained that Plaintiff’s memory was impaired such
that she understood instructions but forgot commands and became confused before completing tasks.
She also noted mood disorder due to general medical condition and delayed onset of PTSD. Ms.
Patton opined that Plaintiff had a marked inability to appropriately interact with the public based on
depressed symptoms, decreased interaction with friends and family, loss of interest in activities,
anxiety, crying spells, and a short temper. Further, Ms. Patton reported that she observed Plaintiff
having difficulty walking, climbing stairs, and sitting due to pain in legs and back. (Tr. 264-266) In
a letter dated December 22, 2009, Ms. Patton opined that Plaintiff was unable to return to work
because of her physical and mental impairments. (Tr. 263)
On December 29, 2009 Dr. Cadiz completed a medical source statement indicating that the
Plaintiff suffered from fibromyalgia, neuropathy, sarcoidosis, vitamin B12 deficiency, vitamin D
deficiency, fatigue, insomnia, weakness, multiple trigger points, and multiple joint pains. Dr. Cadiz
opined that during an 8 hour work day, Plaintiff could walk less than an hour, stand less than an hour,
and sit for less than an hour. He further opined that Plaintiff’s ability to lift, hold, carry, or manipulate
objects or use her upper extremities was impaired due to weakness and limitation of motion in her
shoulders, as well as parasthesis of the fingers effecting her grip and motor strength. In addition, Dr.
12

Cadiz stated that Plaintiff could frequently lift and/or carry up to 10 pounds, could occasionally lift
10 to 20 pounds, and could never lift 20 to over 50 pounds. Plaintiff was restricted in climbing stairs
or ladders and in bending. Further, Dr. Cadiz opined that Plaintiff would require 30 minute rests for
every hour of prolonged sitting or standing. Plaintiff’s limitation of motion, fatigue, and pain caused
depression and anxiety. He believed that her multiple joint pains and fatigue severely impaired her
activities such that she was incapable of performing at least the full range of sedentary work. He
further stated that she was unable to work an eight hour day five days a week. Dr. Cadiz opined that
Plaintiff’s reports of pain are credible because trigger points were reproducible and consistent. He
did not expect improvement in Plaintiff’s condition. (Tr. 284-286)
Plaintiff returned to Dr. Cadiz on January 4, 2010, complaining of leg and foot pain, increased
fatigue, and trouble walking. She also reported switching between ibuprofen and naproxen because
both caused GI bleeding. Physical examination revealed abnormal strength, range of motion, stability,
and inspection. Dr. Cadiz noted tender muscle points in shoulders, hips, thighs, and worst on calves.
Her sensation was intact. (Tr. 276)
On March 8, 2010, the Plaintiff reported to Dr. Cadiz that medication had helped her pain,



which was less frequent but had not subsided. She was still able to function. Physical examination
was normal, other than abnormal tachycardia. Dr. Cadiz assessed fibromyalgia, right eyelid mole,
impaired vision, hypothyroidism, vitamin D and B12 deficiencies, depression/anxiety, and chest pain.
He referred Plaintiff to a plastic surgeon and noted symptoms of loss of motion in her fingers, swollen
hands and joints, and decreased sensation in her toes. Dr. Cadiz also recommended a psychological
consultation. (Tr. 314-15)

13

On April 8, 2010 the Plaintiff saw Dr. Natajaran Laks of Advanced Psychiatric Services. Dr.
Laks diagnosed major depressive disorder, recurrent and PTSD. Dr. Laks prescribed Cymbalta and
Paxil. (Tr. 317-320) Plaintiff followed up with Dr. Laks in May 2010. (Tr. 321)
Plaintiff saw Dr. Hamid Bashir on May 10, 2010 for complaints of multiple joint pains,
tingling in the feet, widespread muscle aches, fatigue, and shortness of breath. Physical exam revealed
normal gait, motor strength, reflexes, and sensation. Dr. Bashir also noted tenderness over both
shoulders, multiple fibromyalgia trigger points in symmetric distribution, and tenderness over the toes
and right ankle. Plaintiff’s affect and speech were normal. Dr. Bashir diagnosed joint pain in multiple
sights, sarcoidosis, and fibromyalgia. (Tr. 305-307)
On June 8, 2010, Plaintiff returned to Dr. Cadiz for a 3 month check up. Dr. Cadiz noted that
Plaintiff’s sarcoidosis was out of remission, and he recommended an MRI of the brain. (Tr. 299-300)
A lower extremity arterial study on June 14, 2010 revealed significant small vessel disease of the feet
bilaterally, with borderline significant disease in the thighs bilaterally and across the knee on the left.
(Tr. 303) An MRI of the brain performed on that same date revealed a focus of enhancement along
the tentorium on the left with a small enhancing mass lesion which was a concern. (Tr. 302)
IV. The ALJ’s Determination
In a decision dated February 22, 2010, the ALJ found that the Plaintiff met the insured status
requirements of the Social Security Act through December 31, 2013. She had not engaged in
substantial gainful employment since her alleged onset date, October 1, 2008. The ALJ further
determined that Plaintiff had the severe impairment of fibromyalgia. The ALJ noted that Plaintiff had
not been diagnosed with depression or anxiety by any acceptable medical source and therefore failed
to sustain her burden of proving a medically determinable mental impairment. In addition, no
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objective findings supported Plaintiff’s diagnosis of sarcoidosis. The ALJ further found that Plaintiff
did not have an impairment or combination of impairments that met or medically equaled one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 10-11)
After considering the record, the ALJ determined that Plaintiff had the residual functional
capacity (“RFC”) to perform light work with a sit/stand option every hour. Further, she was unable
to use her lower extremities to operate foot controls; unable to crawl or climb ladders, ropes, or
scaffolds; and able to occasionally climb ramps or stairs. Plaintiff needed to avoid operational control
of moving machinery, working at unprotected heights, and exposure to hazardous machinery. Finally,
she was limited to jobs that involved only simple routine and repetitive tasks with occasional decision
making, occasional changes in the work setting, and no interaction with the public. The ALJ assessed
Plaintiff’s testimony and found that her allegations of were not entirely credible. The ALJ also noted
that treatment records prior to her alleged onset date were inconsistent with allegations of disabling
fibromyalgia, leg pain, neuropathy, fatigue, and sarcoidosis. Further, Dr. Cadiz’s medical source
statement was inconsistent with treatment records and were unsupported by objective testing. In
addition, no physician recommended that Plaintiff stop working, and treatment notes indicated that
she was doing better. (Tr. 11-15)
The ALJ determined that Plaintiff was unable to perform any past relevant work. However,
in light of her younger age, education, work experience, and RFC, the ALJ found that jobs existed
in significant numbers in the national economy which Plaintiff could perform such as sedentary
assembly and file clerk. Thus, the ALJ concluded that Plaintiff had not been under a disability from
October 1, 2008 through the date of the decision. (Tr. 15-17)

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V. Legal Standards
A claimant for social security disability benefits must demonstrate that he or she suffers from
a physical or mental disability. 42 U.S.C. § 423(a)(1). The Social Security Act defines disability as
“the inability to do 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 not less than 12 months.” 20 C.F.R. § 404.1505(a).
To determine whether a claimant is disabled, the Commissioner engages in a five step
evaluation process. See 20 C.F.R. § 404.1520(b)-(f). Those steps require a claimant to show: (1) that
she is not engaged in substantial gainful activity; (2) that she has a severe impairment or combination
of impairments which significantly limits her physical or mental ability to do basic work activities; or
(3) she has an impairment which meets or exceeds one of the impairments listed in 20 C.F.R., Subpart
P, Appendix 1; (4) she is unable to return to her past relevant work; and (5) her impairments prevent
her from doing any other work. Id.
The Court must affirm the decision of the ALJ if it is supported by substantial evidence. 42
U.S.C. § 405(g). “Substantial evidence ‘is less than a preponderance, but enough so that a reasonable
mind might find it adequate to support the conclusion.’” Cruse v. Chater, 85 F. 3d 1320, 1323 (8th
Cir. 1996) (quoting Oberst v. Shalala, 2 F.3d 249, 250 (8th Cir. 1993)). The Court does not re-weigh
the evidence or review the record de novo. Id. at 1328 (citing Robinson v. Sullivan, 956 F.2d 836,
838 (8th Cir. 1992)). Instead, even if it is possible to draw two different conclusions from the
evidence, the Court must affirm the Commissioner’s decision if it is supported by substantial
evidence. Id. at 1320; Clark v. Chater, 75 F.3d 414, 416-17 (8th Cir. 1996).
To determine whether the Commissioner’s final decision is supported by substantial evidence,
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the Court must review the administrative record as a whole and consider: (1) the credibility findings
made by the ALJ; (2) the plaintiff’s vocational factors; (3) the medical evidence from treating and
consulting physicians; (4) the plaintiff’s subjective complaints regarding exertional and non-exertional
activities and impairments; (5) any corroboration by third parties of the plaintiff’s impairments; and
(6) the testimony of vocational experts when required which is based upon a proper hypothetical
question that sets forth the plaintiff’s impairment(s). Stewart v. Secretary of Health & Human Servs.,
957 F.2d 581, 585-586 (8th Cir. 1992); Brand v. Secretary of Health Educ. & Welfare, 623 F.2d 523,
527 (8th Cir. 1980).
The ALJ may discount plaintiff’s subjective complaints if they are inconsistent with the
evidence as a whole, but the law requires the ALJ to make express credibility determinations and set
forth the inconsistencies in the record. Marciniak v. Shalala, 49 F.3d 1350, 1354 (8th Cir. 1995). It
is not enough that the record contain inconsistencies; the ALJ must specifically demonstrate that he
or she considered all the evidence. Id. at 1354; Ricketts v. Secretary of Health & Human Servs., 902
F.2d 661, 664 (8th Cir. 1990).
When a plaintiff claims that the ALJ failed to properly consider subjective complaints, the duty
of the Court is to ascertain whether the ALJ considered all of the evidence relevant to plaintiff’s
complaints under the Polaski2 standards and whether the evidence so contradicts plaintiff’s subjective
complaints that the ALJ could discount his testimony as not credible. Benskin v. Bowen, 830 F.2d
878, 882 (8th Cir. 1987). If inconsistencies in the record and a lack of supporting medical evidence

2

The Polaski factors include: (1) the objective medical evidence; (2) the subjective
evidence of pain; (3) any precipitating or aggravating factors; (4) the claimant’s daily activities;
(5) the effects of any medication; and (6) the claimants functional restrictions. Polaski v. Heckler,
739 F.2d 1320, 1322 (8th Cir. 1984).
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support the ALJ’s decision, the Court will not reverse the decision simply because some evidence may
support the opposite conclusion. Marciniak 49 F.3d at 1354.
VI. Discussion
In her Brief in Support of the Complaint, Plaintiff argues that the Commissioner failed to
consider evidence submitted to the Appeals Council subsequent to the ALJ’s decision. In addition,
she asserts that the hypothetical question presented to the VE did not contain all of Plaintiff’s
limitations, specifically her upper extremity restrictions and her need for additional or longer breaks.
Defendant, on the other hand, maintains that the ALJ properly discounted the opinion of Plaintiff’s
treating physician and properly determined that she had the RFC to perform a limited range of work
at the light exertional level. Further, the Defendant contends that the Appeals Council properly
denied Plaintiff’s request for review.
The undersigned finds that substantial evidence supports the ALJ’s decision and that the
Commissioner did not err in refusing to consider evidence submitted after the ALJ issued the
determination. Further, the hypothetical posed to the VE contained all of Plaintiff’s credible
limitations, such that substantial evidence supported the ALJ’s determination.
A. New Evidence
Plaintiff first contends that the Appeals Council should have considered newly submitted
evidence. “In order to support a remand, new evidence must be ‘relevant, and probative of the
claimant’s condition for the time period for which benefits were denied.’” Estes v. Barnhart, 275 F.3d
722, 725 (8th Cir. 2002) (quoting Jones v. Callahan, 122 F.3d 1148, 1154 (8th Cir. 1997)). Further,
there must be a reasonable likelihood that the evidence would have changed the determination.
Woolf v. Shalala, 3 F.3d 1210, 1215 (8th Cir. 1993).
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“Where, as here, the Appeals Council

considers new evidence but denies review, we must determine whether the ALJ’s decision was
supported by substantial evidence on the record as a whole, including the new evidence.” Davidson
v. Astrue, 501 F.3d 987, 990 (8th Cir. 2007) (citations omitted).
The Defendant correctly notes that the evidence submitted pertains to examinations after the
date of the ALJ’s February 22, 2010 decision. Only one examination by Dr. Cadiz took place during
the relevant time period, and the other visits with Dr. Cadiz, Dr. Bahir, and Dr. Laks took place after
the ALJ issued his decision. (Tr. 289-312, 313-21) The record shows that the Appeals Council did
consider this additional evidence and determined that the information did not provide a basis for
changing the ALJ’s decision. (Tr. 1-2)
With regard to Dr. Bahir’s report, the undersigned notes that he examined Plaintiff one time.
Generally, the report of a consultative physician who examined a plaintiff on only one occasion does
not constitute substantial evidence based on the record as a whole. Wagner v. Astrue, 499 F.3d 842,
849 (8th Cir. 2007) (citations omitted). Further, this report was merely cumulative of reports from
Plaintiff’s treating physician and would not have changed the outcome of the ALJ’s determination.
The new evidence also shows that Plaintiff saw a psychiatrist, Dr. Laks, in April and May of 2010.
Again, these reports merely re-state previous diagnoses and do not present new and probative
information. Finally, Dr. Cadiz’s treatment records from January to June of 2010 show problems
with Plaintiff’s legs and feet, the ALJ took these problems into account when assessing Plaintiff’s
RFC. Indeed, the ALJ included the restrictions of a sit/stand option and an inability to operate foot
controls. With regard to the brain MRI, the test conducted four months after the decision was
uncertain. (Tr. 302) Further, Plaintiff fails to demonstrate that this issue relates to her condition

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during the relevant time period. Thus, the undersigned finds that none of the evidence submitted by
Plaintiff subsequent to the ALJ’s determination supports remanding this case to the Commissioner.
B. Hypothetical to the VE
Next, Plaintiff argues that the hypothetical question posed to the VE was incomplete in that
it did not include upper extremity limitations or the need for longer or additional breaks. The
Defendant responds that hypothetical question properly included only those impairments and
restrictions that the ALJ found credible.
The undersigned agrees that the ALJ posed a proper hypothetical question to the VE and that
the VE’s testimony that Plaintiff could perform work was substantial evidence in support of the ALJ’s
determination. “A hypothetical question is properly formulated if it sets forth impairments ‘supported
by substantial evidence in the record and accepted as true by the ALJ.’” Guilliams v. Barnhart, 393
F.3d 798, 804 (8th Cir. 2005) (quoting Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001)). Further,
where substantial evidence supports an ALJ’s finding that a plaintiff’s complaints were not credible,
the ALJ may properly exclude those complaints from the hypothetical question. Id.
In the instant case, the ALJ included only those impairments and limitations that he found
credible. The ALJ asked the VE to assume an individual with Plaintiff’s education, training, and work
experience, who could work at a light exertional level. (Tr. 775) The ALJ also included the credible
limitations, including a sit/stand option every hour; no use of foot-controlled operations; inability to
climb ladders, ropes, or scaffolds; ability to occasionally climb ramps or stairs; inability to crawl; and
avoidance of all exposure to moving machinery, unprotected heights, and hazardous machinery. The
ALJ also included mental limitations such as the ability to occasionally interact with the public; ability
to occasionally make decisions or tolerate changes in a work setting; and need for jobs involving only
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simple routine and repetitive tasks. (Tr. 11, 73-75) These limitations are consistent with medical and
other evidence in the record. Indeed, Plaintiff acknowledges that she agrees with each of the
limitations set forth in the RFC finding with the exception of a need for longer breaks and an upper
extremity limitation. (Brief in Support of Complaint 14, ECF No. 22)
Plaintiff’s attorney raised these additional limitations when questioning the VE. However,
the evidence does not support these limitations, and the ALJ properly discredited Plaintiff’s
allegations. “A treating physician’s opinion should not ordinarily be disregarded and is entitled to
substantial weight . . . provided the opinion is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the
record.” Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000) (citations omitted). However, “an ALJ
may discount such an opinion if other medical assessments are supported by superior medical
evidence, or if the treating physician has offered inconsistent opinions.” Holstrom v. Massanari, 270
F.3d 715, 720 (8th Cir. 2001) (citation omitted). Further, “[i]t is appropriate to give little weight to
statements of opinion by a treating physician that consist of nothing more than vague, conclusory
statements.” Swarnes v. Astrue, Civ. No. 08-5025-KES, 2009 WL 454930, at *11 (D.S.D. Feb. 23,
2009) (citation omitted).
In this case, the ALJ relied on the treatment records of Dr. Cadiz but found these records to
be inconsistent with the medical source statement. Specifically, the ALJ noted that the medical record
contained no tests or other objective evidence to support Dr. Cadiz’s diagnoses. Further, the only
evidence in the record to support Dr. Cadiz’s findings were physical examinations which were fairly
normal, not always fully described, and reliant on Plaintiff’s subjective reports of symptoms and
limitations. While Dr. Cadiz opined that Plaintiff had extreme functional limitations, he never
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restricted Plaintiff’s activities or referred her to a specialist or for pain relieving therapy. Thus, the
ALJ properly discounted Dr. Cadiz’s opinions rendered in his reports related to Plaintiff’s disability
claim. See Choate v. Barnhart, 457 F.3d 865, 870-71 (8th Cir. 2006) (finding that ALJ properly
discredited physician’s Medical Source Statement where treatment notes never mentioned restrictions
or limitations to the plaintiff’s activities). Further, Plaintiff’s complaints primarily involved the lower
extremities. While there is some indication that after the relevant time period Dr. Cadiz assessed
limited motion in Plaintiff’s fingers, as well as swollen hands, her examination was normal. (Tr. 315)
Nothing in the record supported her allegation of upper extremity restrictions. In addition, only Dr.
Cadiz’s medical source statement opined that Plaintiff required longer or additional breaks. As
previously stated, because the medical treatment records were inconsistent with Dr. Cadiz’s medical
source statement, the ALJ properly refused to give Dr. Cadiz’s opinion controlling weight. See
Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000) (stating an ALJ may discount or disregard a
treating physician’s opinion where the “treating physician renders inconsistent opinions that
undermine the credibility of such opinions . . .”) (citation omitted).
As such the ALJ was not required to include the limitations in his hypothetical question to the
VE. Therefore, the undersigned finds that “[t]he hypothetical was sufficient because it represented
a valid assessment of [Plaintiff’s] . . . limitations consistent with the evidence in the record.” Davis
v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001). Because the hypothetical question properly set forth
Plaintiff’s limitations, the VE’s testimony constituted substantial evidence upon which the ALJ could
properly rely in determining that Plaintiff was not disabled. Id.

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Accordingly,
IT IS HEREBY ORDERED that the final decision of the Commissioner denying social
security benefits be AFFIRMED. A separate Judgment in accordance with this Memorandum and
Order is entered this same date.

/s/ Terry I. Adelman
UNITED STATES MAGISTRATE JUDGE
Dated this 26th day of September, 2012.

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