McGlown v. Social Security Administration
Filing
21
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED and this cause is REMANDED to the Commissioner for further proceedings. Judgment shall be entered accordingly. Signed by Magistrate Judge Frederick R. Buckles on 1/29/2013. (NCL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TRACY LYNN MCGLOWN,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
No.
4:11CV1477 FRB
MEMORANDUM AND ORDER
This cause is before the Court on plaintiff’s appeal of
an adverse ruling of the Social Security Administration.
All
matters are pending before the undersigned United States Magistrate
Judge, with consent of the parties, pursuant to 28 U.S.C. § 636(c).
I.
Procedural History
On September 5, 2006, plaintiff Tracy Lynn McGlown filed
an application for Disability Insurance Benefits pursuant to Title
II of the Social Security Act, 42 U.S.C. §§ 401, et seq., and an
application for Supplemental Security Income pursuant to Title XVI
of the Act, 42 U.S.C. §§ 1381, et seq., in which she alleged that
she became disabled on July 14, 2004.
(Tr. 147-50, 151-53.)
On
initial consideration, the Social Security Administration denied
plaintiff's claims for benefits.
(Tr. 77-78, 79-80, 86-90.)
On
February 6, 2008, upon plaintiff’s request, a hearing was held
before
an
testified
Administrative
and
was
Law
represented
Judge
by
(ALJ)
counsel.
at
which
(Tr.
plaintiff
31-74.)
A
supplemental hearing was held on June 17, 2009, at which plaintiff
and a vocational expert testified.
(Tr. 23-30.)
On June 30, 2009,
the ALJ denied plaintiff's claims for benefits, finding that
vocational expert testimony supported a decision that a person with
plaintiff’s residual functional capacity (RFC) could perform work
as it exists in the national economy.
(Tr. 10-21.)
On June 22,
2011, the Appeals Council denied plaintiff's request for review of
the ALJ's decision.
(Tr. 1-3.)
The ALJ's determination thus
stands as the final decision of the Commissioner.
42 U.S.C. §
405(g).
Plaintiff now seeks review of the Commissioner’s final
adverse determination arguing that the
supported
by
substantial
evidence
on
ALJ’s decision is not
the
record
as
a
whole.
Specifically, plaintiff claims that the ALJ erred by relying on a
State agency opinion rendered by a non-medical, single decisionmaker to find plaintiff not disabled.
Plaintiff also claims that
her RFC, as determined by the ALJ, precludes employment. Plaintiff
further
contends
that
the
ALJ
erred
in
his
plaintiff’s pain to be a severe impairment.
argues
that
the
ALJ
erred
by
soliciting
failure
to
find
Finally, plaintiff
opinions
from
three
vocational experts and relying on expert testimony which was based
on inconsistent hypothetical questions.
Plaintiff asks the Court
to reverse the decision of the Commissioner or remand the matter
for further proceedings.
-2-
II.
A.
Testimonial Evidence Before the ALJ
February 6, 2008, Administrative Hearing
At the hearing on February 6, 2008, plaintiff testified
in response to questions posed by the ALJ and counsel.
At the time of the hearing, plaintiff was forty-one years
of age.
Plaintiff was separated from her husband and had two
children, ages twenty-three and eighteen.
(Tr. 37.)
graduated from high school and had six college credits.
received
no
other
vocational
training.
assistance through food stamps and Medicaid.
Plaintiff
Plaintiff
Plaintiff
received
(Tr. 39-40.)
Plaintiff’s signed work history reports show that from
1986 to 1996, plaintiff worked as a manager at a restaurant.
1996 to 1997, plaintiff worked as a postal worker.
From
From 1997 to
1999, plaintiff worked as a dietary aide at a nursing home.
From
1999 to 2001, plaintiff worked as a teaching assistant at a church.
From 2002 to 2004, plaintiff worked as a manager at a restaurant.
(Tr. 222.)
From February through August 2006, plaintiff worked
part-time as a cook at LMW Learning Center.
(Tr. 239.)
Plaintiff testified that she last worked in August 2006
for a daycare.
Plaintiff reported that her hours were continually
being decreased until she was told that she was no longer needed.
Plaintiff testified that she has not worked in or applied for any
employment positions since August 2006 because of her hospital
stays, medications, and back pain.
(Tr. 42.)
Plaintiff testified that she was diagnosed with cervical
-3-
cancer in July 2004 for which she was treated with chemotherapy and
radiation therapy.
cancer free.
Plaintiff testified that she was currently
Plaintiff testified that she continues to experience
reactions to her radiation therapy.
Plaintiff testified that
subsequent to treatment, she experienced a lot of pain and was
limited in her ability to lift because of related bladder problems.
Plaintiff testified that she cannot lift over ten pounds.
(Tr. 58-
60.)
Plaintiff testified that her cancer treatments caused her
to have problems with her bladder and kidneys and that stents were
implanted.
Plaintiff
testified
that
the
stents
had
to
be
periodically replaced because of painful infections, and that they
were eventually removed in January 2007.
Plaintiff testified that
the stent-replacement procedure usually was a one-day procedure,
but that she sometimes stayed in the hospital for longer periods.
(Tr. 61-62, 70-71.)
Plaintiff testified that she also experiences diarrhea
and constipation and takes medication to control the conditions.
(Tr. 63.)
Plaintiff testified that she previously worked for a
catering business, and that there was a workplace shooting at that
business in April 2006.
(Tr. 41-43.)
Plaintiff testified that,
although she suffered from depression prior to the shooting, the
incident exacerbated the condition.
Plaintiff testified that she
now feels that she does not know if someone is “going to do
-4-
something” to her, so she stays inside to stay safe.
Plaintiff
testified that she cries every day when she thinks about the
incident and of her inability to work.
testified
that
attempts.
she
sometimes
Plaintiff
mother’s voice.
felt
testified
(Tr. 64-65.)
suicidal
that
she
but
Plaintiff
has
sometimes
made
hears
no
her
Plaintiff testified that she had difficulty with
concentration and finishing things she has started.
(Tr. 67.)
Plaintiff testified that she has difficulty with stress and becomes
angry.
Plaintiff testified that she also has nightmares for which
she was recently prescribed medication.
(Tr. 73.)
Plaintiff
testified that she was currently seeing a psychologist and a
psychiatrist on a weekly basis.
(Tr. 65-66.)
Plaintiff testified that she takes Percocet every day for
back pain.
(Tr. 53-54.)
Plaintiff testified that she takes a
muscle relaxant once or twice a week instead of Percocet when she
has less pain.
(Tr. 55-56.)
Plaintiff testified that she also
takes medication for depression as well as Clonazepam to help her
“get out into the world.”
(Tr. 54-55.)
Plaintiff testified that
she experiences nausea, sleepiness, and dizziness as side effects
of her medications and must lie down because of them.
Plaintiff
testified that she previously would lie down and sleep during her
lunch periods at work.
(Tr. 57-58, 72.)
Plaintiff testified that she experiences lower abdominal
and lower back pain.
(Tr. 60.)
Plaintiff testified that sitting
worsens the back pain, but that heat helps.
-5-
(Tr. 71.)
Plaintiff
testified that taking Percocet relieves the back pain, but that the
pain
returns
when
she
is
taken
off
of
Percocet.
Plaintiff
testified that her prescriptions for Percocet are then resumed.
(Tr. 60.)
Plaintiff testified that taking Ditropan helps her
abdominal pain.
(Tr. 71.)
As to her exertional abilities, plaintiff testified that
she can sit for up to an hour and stand for about an hour.
Plaintiff testified that she can walk about two blocks and can lift
no
more
than
ten
pounds.
Plaintiff
difficulty bending and cannot crawl.
can climb a flight of stairs.
testified
that
she
has
Plaintiff testified that she
(Tr. 68-69.)
As to her daily activities, plaintiff testified that she
gets up in the morning between 6:30 and 7:00 a.m. and goes to bed
at night around 8:00 p.m.
Plaintiff testified that she takes naps
throughout the day after she takes her medication because the
medication causes sleepiness and dizziness.
Plaintiff testified
that she lies down six to eight hours every day and cannot make it
through an entire day without lying down.
(Tr. 49-50, 72.)
Plaintiff testified that she also reads and watches television
during the day.
Plaintiff testified that she is able to wash
dishes, cook a light meal, and make beds.
Plaintiff testified that
she cannot sweep, mop, or vacuum because of her back pain.
49-50.)
(Tr.
Plaintiff testified that she gets along well with people
but is not involved in any clubs or organizations.
testified that she has no hobbies.
-6-
(Tr. 51.)
Plaintiff
Plaintiff testified
that she does not go grocery shopping because of the previous
workplace incident.
(Tr. 68.)
Plaintiff testified that she is
able to care for her personal needs.
(Tr. 51.)
Plaintiff
testified that her driver’s license was suspended, but that she was
nevertheless not to drive because of her medications.
Plaintiff
testified that she took the Metro Link to the hearing site.
(Tr.
38.)
B.
Vocational Expert Interrogatories
1.
Dr. W. Glenn White; October 30, 2008
On October 30, 2008, Dr. W. Glenn White, a vocational
expert, answered written interrogatories put to him by the ALJ.
Dr. White characterized plaintiff’s past relevant work as
a postal clerk, caterer helper, and teacher’s aide as semi-skilled
and light; as a food service manager as skilled and light; as a
deli-cutter-slicer and fast food worker as unskilled and light; and
as a telephone solicitor as semi-skilled and sedentary. (Tr. 281.)
Dr.
White
was
asked
to
consider
an
individual
of
plaintiff’s age, education, and work history and to further assume
that the claimant has the residuals of
chemotherapy and radiation therapy for stage
IIB squamous cell carcinoma of the cervix;
recurrent ureteral obstructions with stent
insertions; recurrent pyelonephritis; major
depressive disorder; and post-traumatic stress
disorder.
Further assume that the claimant
can
lift
and
carry
up
to
10
pounds
occasionally and 5 pounds frequently; sit for
a total of six hours of an 8-hour work day;
stand or walk for a total of 2 hours of an 8hour work day; and occasionally climb,
-7-
balance, stoop, crouch, kneel, and crawl.
Assume
that
the
claimant
must
avoid
concentrated exposure to extreme heat, fumes,
odors,
or
dust,
and
she
must
avoid
concentrated exposure to hazardous machinery
and unprotected heights. In addition, assume
that the claimant is restricted to simple
repetitive tasks with no more than occasional
interaction with coworkers, supervisors, or
the public.
(Tr. 281-82.)
Dr. White responded that such a person could not perform any of
plaintiff’s past relevant work, nor any other work in the national
or regional economy.
(Tr. 282.)
Dr. White was then asked to consider an individual of
plaintiff’s age, education, and work history and to consider the
individual to have the same impairments as set out in the first
hypothetical.
claimant’s
Dr. White was asked to “[f]urther assume that the
daily
activities
include
lying
down,
periodically
throughout the day for the majority of an 8 hour period, and that
her need to lie down cannot be met with only a 30 minute lunch
period and two 15-minute breaks.”
(Tr. 293.)
Dr. White responded
that the need to lie down as described would exceed that which is
usually allowed in time away from the job, and that, therefore,
such a person could not perform any of plaintiff’s past relevant
work, nor any other work in the national or regional economy.
(Tr.
293.)
Finally, Dr. White was asked to consider an individual of
plaintiff’s age, education, and work history and to consider the
-8-
individual to have the same impairments as set out in the first
hypothetical.
Dr. White was then asked to further assume that the
claimant had a GAF score of 50.
In response, Dr. White stated that
a person with a GAF score of 50 could not sustain a job in a
competitive labor market inasmuch as such a score reflects serious
symptoms related to a general level of functioning.
2.
(Tr. 293-94.)
Brenda Young; April 6, 2009
On April 6, 2009, Brenda Young, a vocational expert,
answered written interrogatories put to her by the ALJ.
Ms. Young characterized plaintiff’s past relevant work as
a fast food manager, assistant teacher, and postal clerk as semiskilled and medium; as a dietary aide as unskilled and medium; as
a telemarketer as unskilled and sedentary; and as a deli clerk as
unskilled and light.
(Tr. 311.)
Ms. Young was asked to consider an individual forty-one
years of age with a high school education, and that such person was
“capable
of
performing
sedentary
work,
lifting
10
lbs.
occasionally, less than 10 frequently, occasional balance, stoop,
crouch, kneel, crawl, no machinery, Heights, sit 6/8, stand, walk
2/8, no concentrated exposure to noise, dust, fumes, gases, simple,
repetitive
tasks,
occasional
interaction
with
co-workers,
supervisors and public.” (Tr. 312.) Ms. Young responded that such
a person could not perform any of plaintiff’s past relevant work,
but could perform other work in the economy such as small product
assembly at the sedentary and unskilled level, of which 3,000 such
-9-
jobs existed in the St. Louis area.
C.
(Tr. 312.)
June 18, 2009, Administrative Hearing
At the hearing on June 18, 2009, the ALJ noted that the
purpose of the hearing was to obtain testimony from a vocational
expert since one was not present at the earlier hearing.
The ALJ
recited the history of the case with respect to vocational expert
testimony, stating specifically that Dr. White had died prior to
completing the interrogatories sent to him, and that therefore
interrogatories were sent to and completed by Ms. Young.
The ALJ
noted
to
that,
inasmuch
as
Ms.
Young
had
responded
interrogatories, there was no need for the current hearing.
24-25.)
the
(Tr.
Plaintiff’s counsel pointed out to the ALJ that Dr. White
indeed responded to the interrogatories and that such responses
were a part of the file.
(Tr. 25-26.)
Counsel then proceeded to
question the vocational expert who was present at the hearing.
1.
Testimony of Vocational Expert
An
unnamed
vocational
expert
testified
at
the
supplemental hearing in response to questions posed by counsel.1
Counsel asked the vocational expert to consider Dr.
Clarke’s description of plaintiff as having a “fair ability to deal
with the public, use judgment, deal with work stresses, function
independently, and be attentive and concentrate, behave in an
emotionally stable manner, relate predictably in social situations,
1
In his written decision, the ALJ identified this expert as
Vincent Stock. (Tr. 13.)
- 10 -
and demonstrate reliability.” (Tr. 26.) Counsel defined “fair” as
meaning “the ability to function is seriously limited” and asked
the expert whether such restrictions would preclude an individual
from performing unskilled, sedentary work. (Tr. 26.) In response,
the expert testified that such a person “would have a significant
difficulty in terms of being able to maintain employment.”
(Tr.
27.)
2.
Plaintiff’s Testimony
Upon the conclusion of the vocational expert’s testimony,
the ALJ posed questions to plaintiff to which she testified as
follows:
Plaintiff testified that she was currently working as a
dietary aide at Delmar Gardens setting tables and preparing plate
meals for the residents.
Plaintiff testified that she began
working at Delmar Gardens in September 2008.
(Tr. 28.)
Plaintiff
testified that it was a stand up/sit down job and that the heaviest
thing she lifted was a gallon of milk.
Plaintiff testified that
she worked five hours a day, three or four days a week.
Plaintiff
testified that she attempted to work eight hours a day, but that
putting in such time was stressful and tiresome so she resumed her
part time hours.
(Tr. 29.)
III.
Medical Records
A biopsy performed on August 6, 2004, showed plaintiff to
have
Stage
II-B
cervical
cancer
recommended
that
plaintiff
undergo
- 11 -
whereupon
Dr.
chemotherapy
Imran
and
Zoberi
radiation
treatment.
(Tr. 325, 344-45.)
On August 30 and September 3, 2004,
Dr. Zoberi and Dr. Barbara Buttin, respectively, wrote “To Whom It
May Concern” that plaintiff would be unable to work due to side
effects from radiation and chemotherapy, and that such treatment
was expected to continue through October 25, 2004.
(Tr. 350, 351.)
Plaintiff was admitted to Barnes Jewish Hospital on
September 16, 2004, for chemoradiation treatment with the placement
of intracavitary radium implants.
Plaintiff had already received
fourteen fractions of external beam treatment. Plaintiff tolerated
the procedure well and was discharged on September 19, 2004.
Plaintiff’s
discharge
medications
included
Percocet
for
pain,
Zofran and Compazine for nausea and vomiting, and Senokot2 for
constipation.
Plaintiff was instructed to engage in activity as
tolerated and to resume a regular diet as tolerated.
328-29, 332.)
(Tr. 320-21,
Plaintiff underwent a second radium implant on
September 30, 2004.
(Tr. 326-27.)
Plaintiff completed her treatment on October 11, 2004,
and reported to Dr. Greg Franklin on November 24, 2004, that she
was doing well.
Plaintiff had no complaints other than worsening
hot flashes since the end of her treatment.
Upon examination, Dr.
Franklin noted there to be no clinical evidence of disease.
(Tr.
333-34.)
2
Senokot is the commercial brand name for Senna, medication
used on a short-term basis to treat constipation. Medline Plus
(last revised Nov. 15, 2011).
- 12 -
A whole body Positron Emission Topography (PET) performed
on January 6, 2005, showed interval improvement in the size and
activity
of
plaintiff’s
cervical
cancer.
Persistent
rim
of
increased activity with a central area of necrosis was suggestive
of residual disease.
was noted.
No evidence of local or metastatic disease
(Tr. 428-29.)
Plaintiff returned to Dr. Zoberi on January 11, 2005, and
reported no complaints other than a poor appetite.
reported having no pain.
Plaintiff
Physical examination was unremarkable.
Dr. Zoberi noted the status of plaintiff’s disease to be uncertain
and
Flagyl,
an
antibiotic,
was
instructed to return in one month.
In
a
prescribed.
Plaintiff
was
(Tr. 336-37.)
questionnaire
completed
for
disability
determinations on January 11, 2005, Dr. Buttin of Washington
University’s
Division
of
Gynecologic
Oncology
reported
that
plaintiff’s treatment for cervical cancer caused gastrointestinal
toxicity which resulted in pain and nausea, and that plaintiff was
thereby limited in her ability to perform day-to-day activities.
(Tr. 343.)
Plaintiff visited the Gynecologic Oncology Clinic at
Barnes Jewish Hospital on January 20, 2005, for follow up and
reported having low abdominal pain since Christmas. The results of
the January 2005 PET were noted.
Plaintiff’s current medications
- 13 -
were noted to include Zofran, Percocet, Senokot, and Oxycontin.3
A follow up biopsy was scheduled to rule out possible persistent/
recurrent disease.
(Tr. 401.)
Cervical biopsy performed on February 17, 2005, showed no
definite evidence of malignancy.
(Tr. 367.)
On February 18, 2005, plaintiff underwent ureteral stent
placement for distal ureteral malignant obstruction on the left
side.
(Tr. 374-75.)
Plaintiff was admitted to Barnes Jewish Hospital on
February 21, 2005, with complaints of back pain, pain in her left
and right sides, painful urination, and nausea and vomiting.
was
noted
that
plaintiff
was
recently
hospitalized
for
It
left
hydronephrosis (kidney swelling) for which she underwent left
ureteral stent placement.
Plaintiff’s medications were noted to
include Oxycontin and Oxycodone.
Plaintiff underwent left stent
replacement and reported improvement in her pain.
Plaintiff was
discharged on February 26, 2005, and was prescribed MS Contin,4
3
Oxycontin and Percocet are the commercial brand names for the
medication Oxycodone, which is used to relieve moderate to severe
pain.
Medline Plus (last revised Oct. 15, 2011).
4
MS Contin is the commercial brand name for oral morphine,
medication used to relieve moderate to severe pain. Medline Plus
(last revised June 15, 2011).
- 14 -
MSIR,5
Detrol,6
and
Bactrim
(an
antibiotic)
upon
discharge.
Plaintiff was instructed to return for follow up in one and onehalf weeks.
(Tr. 353-55.)
Plaintiff visited Gynecologic Oncology on March 23, 2005.
Plaintiff’s history of cervical cancer and treatment was noted with
no evidence of current disease. Plaintiff’s medications were noted
to include Zofran, Percocet, and Senokot. Plaintiff’s prescription
for Percocet was refilled for pain control.
(Tr. 400.)
In a letter dated March 28, 2005, to “To Whom It May
Concern,” Dr. Buttin wrote that plaintiff was unable to work
because of moderate to severe side effects she experienced as a
result of her cancer treatment.
Dr. Buttin wrote that such side
effects required plaintiff to take chronic narcotic pain medication
which limited her ability to function in a normal capacity.
(Tr.
461.)
Plaintiff underwent routine stent change on March 29,
2005, without complication.
(Tr. 427.)
A repeat whole body PET performed on April 5, 2005,
showed no definitive evidence of residual local cervical cancer and
no evidence of distant metastatic disease.
(Tr. 425-26.)
Plaintiff underwent routine stent change on May 24, 2005,
without complication.
(Tr. 424.)
5
Morphine sulfate immediate release.
6
Detrol is used to relieve urinary difficulties. Medline Plus
(last reviewed Sept. 1, 2010).
- 15 -
Plaintiff visited the Tumor Clinic at Barnes Jewish
Hospital on August 24, 2005, for follow up.
plaintiff
was
medications
overdue
were
noted
for
stent
to
include
replacement.
MS
plaintiff’s medications were refilled.
An
attempted
stent
It was noted that
change
Contin
Plaintiff’s
and
MSIR,
and
29,
2005,
was
(Tr. 399.)
on
August
unsuccessful due to pain experienced by plaintiff with moderate
conscious sedation.
The procedure was to be rescheduled so that
plaintiff could be placed under general anesthesia.
(Tr. 423.)
Plaintiff was admitted to Barnes Jewish Hospital on
August 31, 2005, for recurrent pyelonephritis (kidney infection)
and urinary tract infection.
It was noted that plaintiff required
stent replacement approximately every three months due to recurring
urinary
tract
infections.
chills, or back pain.
Plaintiff
currently
denied
fever,
Plaintiff’s medications were noted to
include MS Contin, MSIR, and Detrol.
Plaintiff was discharged the
following date in stable condition and was instructed to engage in
activities as tolerated.
Plaintiff’s medications upon discharge
were Cipro (an antibiotic), Percocet, and Detrol.
(Tr. 358-59.)
Plaintiff visited the Tumor Clinic on November 16, 2005,
for follow up.
Plaintiff complained of fatigue.
medications were noted to include Percocet and MSIR.
Plaintiff’s
Plaintiff
reported that she increased her use of Percocet given the lack of
MSIR, and that she has had increased nausea and vomiting.
It was
noted that plaintiff was scheduled for a stent replacement the
- 16 -
following week.
Plaintiff’s MSIR was refilled.
instructed to return in three months.
Plaintiff was
(Tr. 398.)
Plaintiff was admitted to Barnes Jewish Hospital on
February 10, 2006, with complaints of hematuria. (Tr. 361-62.)
CT
scans of the abdomen and pelvis performed that same date showed
evidence consistent with either local disease extension or postradiation fibrosis.
suggested.
Local invasion or focal cystitis were also
It was noted that plaintiff previously underwent left
ureteral stent placement for distal ureteric obstruction.
368-73.)
(Tr.
Plaintiff was discharged that same date with instruction
not to lift weight in excess of ten pounds until further notice and
to engage in light duty at work.
Upon discharge, plaintiff was
prescribed Cipro, Detrol, Senokot, and Percocet.
(Tr. 361-62.)
Plaintiff underwent routine stent change on June 19,
2006, without complication.
(Tr. 434-442.)
Plaintiff visited the Tumor Clinic on August 2, 2006, for
follow up.
Plaintiff complained of low pelvic pressure and pain.
Plaintiff was taking no medications. It was noted that plaintiff’s
stent was last replaced in June 2006.
Plaintiff refused a biopsy.
Plaintiff was instructed to return in three months.
(Tr. 397.)
Plaintiff visited the Tumor Clinic on September 20, 2006,
for
follow
up.
Plaintiff
reported
having
bladder
pain.
Plaintiff’s current medications were noted to include Percocet,
- 17 -
Senna, and Ditropan.7
(Tr. 396.)
A vaginal biopsy performed that
same date showed inflammation with bacterial organisms.
(Tr. 365-
66.)
A repeat whole body PET performed September 29, 2006,
showed no definite evidence of residual or recurrent cervical
cancer with no abnormal tracer accumulations about the cervix or
lymph nodes.
A small amount of tracer was noted about the left
ureteral stent.
(Tr. 445, 569.)
Plaintiff underwent a routine stent change on October 4,
2006, without complication.
(Tr. 447.)
On October 17, 2006, S. Greenberg completed a Physical
RFC Assessment for disability determinations in which s/he opined
that plaintiff could occasionally lift and carry ten pounds, and
frequently lift and carry less than ten pounds; could stand and/or
walk at least two hours in an eight-hour work day; could sit about
six hours in an eight-hour work day; and was unlimited in her
ability to push and/or pull.
It was further opined that plaintiff
could occasionally climb, balance, stoop, kneel, crouch, and crawl.
It was further opined that plaintiff should avoid concentrated
exposure
to
extreme
heat,
ventilation, and hazards.
fumes,
odors,
gases,
dusts,
poor
Finally, it was opined that plaintiff
had no manipulative or visual limitations.
(Tr. 454-59.)
On December 27, 2006, plaintiff visited the Gynecologic
7
Ditropan (Oxybutynin) is used to treat symptoms of overactive
bladder.
Medline Plus (last revised Dec. 1, 2010).
- 18 -
Oncology Clinic and reported having occasional abdominal pain which
was controlled with Percocet. Plaintiff’s current medications were
noted to include Oxycodone-acetaminophen and Cipro.
It was noted
that plaintiff exhibited no new symptoms of recurring disease.
prescription for Percocet was given.
A
(Tr. 542-43.)
In a Radiation Oncology Follow-Up note dated January 2,
2007, Dr. Zoberi noted that plaintiff complained of constipation
secondary to her pain medications.
Plaintiff was instructed to
decrease her dosage of Percocet to improve her symptoms.
examination was unremarkable.
Physical
(Tr. 466-67.)
On January 9, 2007, plaintiff visited the Psycho-Oncology
Service
at
the
Siteman
Cancer
Center
regarding her dealing with cancer.
depressed for the past year.
for
initial
assessment
Plaintiff reported feeling
Plaintiff reported having passive
suicidal ideation without intent or plan.
Plaintiff reported her
stressors to include separation from her husband and exposure to a
homicide-suicide
at
her
place
of
employment
in
April
2006.
Plaintiff reported that she was not currently working because of
side effects from her medications and because of pain.
Melissa
Jenkins-Fernandez, Psy.D., opined that plaintiff met the criteria
for Major Depressive Disorder and had symptoms of Post Traumatic
Stress Disorder.
Between January 9 and June 27, 2007, plaintiff
visited Dr. Jenkins-Fernandez on nine occasions for supportive
counseling.
On December 20, 2007, Dr. Jenkins-Fernandez reported
that she could not speak to plaintiff’s abilities regarding her
- 19 -
mental capacity for employment.
(Tr. 583-85.)
A Urography performed on January 16, 2007, showed minimal
drainage from the left kidney into the bladder.
The left ureteral
stent was removed and plaintiff was to be evaluated for left
ureteral obstruction.
January
19,
2007,
(Tr. 511, 515-26.)
showed
evidence
obstruction of the left kidney.
Renal imaging performed
consistent
(Tr. 508.)
with
partial
Follow up renal
imaging performed March 21, 2007, showed interval resolution of the
obstruction.
(Tr. 506.)
Follow
up
examination
with
the
Clinic on March 21, 2007, was unremarkable.
follow
up
examination
plaintiff’s
current
on
June
20,
medications
Gynecologic
Oncology
(Tr. 539-40.)
2007,
included
it
was
Bactrim,
Chloride, Oxycodone-acetaminophen, and Venlafaxine.8
During
noted
that
Oxybutynin
Plaintiff’s
prescriptions for Effexor, Percocet, and Ditropan were refilled.
(Tr. 537-38.)
Plaintiff was admitted to the emergency department at
Barnes
Jewish
Hospital
on
July
experiencing headaches for one week.
14,
2007,
complaining
of
It was noted that plaintiff
had been on multiple narcotics and ran out of Percocet, after which
plaintiff’s headaches had returned.
Plaintiff was given Oxycodone
with
went
acetaminophen,
and
the
pain
away.
Plaintiff
was
prescribed such medication upon her discharge that same date. (Tr.
8
Venlafaxine (Effexor) is used to treat depression. Medline
Plus
(last
revised
Jan.
15,
2012).
- 20 -
481-88.)
In a Radiation Oncology Follow-Up note dated July 31,
2007, Dr. Zoberi noted that plaintiff was doing well and reported
having no pelvic pain.
Physical examination was unremarkable.
There was no clinical evidence of cervical cancer.
(Tr. 464-65.)
CT scans of the abdomen and pelvis performed August 10,
2007,
were
unremarkable.
No
evidence
of
hydronephrosis
was
present, as well as no evidence of definite residual, recurrent, or
metastatic disease.
(Tr. 478-79.)
During her visit to the Gynecologic Oncology Clinic on
September 19, 2007, plaintiff complained of chronic pain in her
left
lower
back,
without
weakness
or
sharp
pain.
Physical
examination was unremarkable with no tenderness noted throughout
the exam.
Plaintiff was instructed to return in three months.
(Tr. 535-36.)
Renal imaging performed October 1, 2007, yielded normal
results.
(Tr. 473.)
During plaintiff’s visit to the Gynecologic Oncology
Clinic on October 10, 2007, plaintiff complained of pain in her
left lower back which improved with a heating pad.
Plaintiff’s
current medications were noted to include Bactrim, Oxybutynin
Chloride, Oxycodone-acetaminophen, Venlafaxine, Cyclobenzaprine,9
9
Cyclobenzaprine (Flexeril) is a muscle relaxant used with
rest, physical therapy, and other measures to relax muscles and
relieve pain and discomfort caused by strains, sprains, and other
muscle injuries.
Medline Plus (last revised Oct. 1, 2010)
.
- 21 -
and Ranitidine.10
Physical examination showed point tenderness to
the medial aspect of the sternum and iliac crest.
Flexeril was
prescribed, and a barium enema x-ray was scheduled.
Plaintiff was
also prescribed Zantac for GERD.
(Tr. 533-34.)
In a letter dated November 5, 2007, to “To Whom It May
Concern,” Dr. Israel Zighelboim of the Gynecologic Oncology Clinic
recommended that plaintiff be excused from jury duty given her
inability to sit for long periods of time due to side effects from
her chemotherapy and radiation treatments.
Plaintiff
followed
up
with
(Tr. 529.)
the
Gynecologic
Oncology
Clinic on December 19, 2007, and reported that her back pain had
improved but that she continued to have left lower quadrant pain.
Physical examination was unremarkable.
plaintiff’s medication regimen.
On
December
21,
No change was made to
(Tr. 530-32.)
2007,
Dr.
Zighelboim
completed
a
Physician’s Assessment for Social Security Disability Claim in
which he reported that plaintiff completed her treatment for
cervical cancer in 2004 and currently had no evidence of disease;
that
plaintiff’s
endurance
was
not
limited
from
a
cancer
standpoint; and that plaintiff could perform full-time sedentary
employment in that she had no indication for limited activity.
(Tr. 528.)
10
Ranitidine
(Zantac)
is
used
to
treat
ulcers
and
gastroesophageal reflux disease (GERD).
Medline Plus (last
reviewed Feb. 1, 2009).
- 22 -
On December 31, 2007, Dr. Zoberi completed a Physician’s
Assessment
for
Social
Security
Disability
Claim
reported that plaintiff was free of disease.
that
he
endurance
had
no
and
knowledge
opined
sedentary employment.
of
that
plaintiff
plaintiff
in
which
he
Dr. Zoberi reported
being
could
limited
perform
in
her
full-time
(Tr. 587.)
Plaintiff visited Dr. Tracy Norfleet on January 9, 2008,
for the purpose of establishing primary care.
plaintiff’s
medical
history
and
that
Dr. Norfleet noted
plaintiff’s
current
medications included Ranitidine, Ditropan, Flexeril, Bactrim, and
Venlafaxine.
Plaintiff complained of intermittent low back pain.
Physical examination was unremarkable.
Plaintiff was noted to be
oriented times three and to have a normal mood.
Plaintiff was
instructed to return for follow up of recent onset of diarrhea.
(Tr. 593-94.)
On January 10, 2008, plaintiff visited Marty Clarke, a
physician assistant with Siteman Cancer Center, upon referral from
Shannon Nanna, Psy.D.
Plaintiff reported that since the workplace
shooting, she has had increasing severe symptoms of low mood,
frequent crying, and disturbing dreams.
Plaintiff reported that
she is often unable to leave her home due to panic and fear, and
was unable to return to work because of her severe symptoms.
Plaintiff reported that she would like to return to college and
become a high school teacher.
Effexor at bedtime.
Dr. Clarke noted plaintiff to take
Mental status examination showed plaintiff to
- 23 -
be
open,
pleasant,
and
cooperative
but
clearly
in
distress.
Plaintiff’s mood was noted to be anxious with liable affect.
Plaintiff
was
disturbing,
noted
to
intrusive
have
frequent
recollections
thoughts
of
the
of
death
traumatic
Plaintiff’s insight and judgment were noted to be good.
with
event.
Dr. Clarke
diagnosed plaintiff with PTSD and assigned a GAF score of 50.11
Plaintiff was prescribed Klonopin12 for anxiety and was instructed
to continue with Dr. Nanna for psychotherapy.
instructed to return to Dr. Clarke in two weeks.
An
abnormalities.
enema
performed
January
16,
Plaintiff was
(Tr. 605-06.)
2008,
showed
no
(Tr. 597.)
On January 17, 2008, Dr. Nanna reported that she had seen
plaintiff on three occasions since December 17, 2007, upon her
transfer from Dr. Jenkins-Fernandez.
Dr. Nanna reported that
because the primary purpose of therapy was to provide supportive
services regarding cancer diagnoses, formal evaluations of daily
functioning and mental status were not conducted.
Dr. Nanna
reported that plaintiff had discussed symptoms of PTSD related to
11
A GAF (Global Assessment of Functioning) score considers
“psychological, social, and occupational functioning on a
hypothetical continuum of mental health/illness.” Diagnostic and
Statistical Manual of Mental Disorders, Text Revision 34 (4th ed.
2000).
A GAF score of 41-50 indicates serious symptoms (e.g.,
suicidal
ideation,
severe
obsessional
rituals,
frequent
shoplifting) or any serious impairment in social, occupational, or
school functioning (e.g., no friends, unable to keep a job).
12
Klonopin (Clonazepam) is used to relieve panic attacks.
Medline Plus (last revised July 1, 2010).
- 24 -
the April 2006 workplace shooting and had exhibited symptoms such
as generalized anxiety, avoidance of public areas, and recurrent
violent
nightmares.
It
continue with treatment.
was
noted
that
plaintiff
planned
to
(Tr. 589.)
Plaintiff visited the Gynecologic Oncology Clinic on
January 20, 2008, and complained of chronic low back pain.
It was
noted that such pain may be musculoskeletal/fibrosis in nature.
Plaintiff was encouraged to use heating pads since such treatment
improved her pain. Percocet was prescribed. Medications were also
prescribed
for
constipation.
urinary
and
fecal
urgency
as
well
as
for
(Tr. 668-71.)
Plaintiff returned to Dr. Norfleet on January 23, 2008,
who
noted
Plaintiff
plaintiff’s
reported
diarrhea
having
symptoms
left-sided
to
back
have
pain.
resolved.
Physical
examination showed mild tenderness about the area without guarding.
Plaintiff reported having seen Dr. Clarke and that she had been
prescribed Clonazepam to help with sleep and nightmares.
Dr.
Norfleet noted plaintiff to have normal mood and affect. Plaintiff
had disability forms with her, but Dr. Norfleet advised plaintiff
that she could not complete them inasmuch as she had seen plaintiff
only once.
Dr. Norfleet advised plaintiff to follow up with her
urologist regarding her back pain.
(Tr. 591-92.)
Plaintiff visited Dr. Clarke on January 23, 2008, and
reported that her medication had helped a lot.
improved
mood;
normal
sleep,
appetite,
- 25 -
and
Plaintiff had
energy;
improved
concentration; and no more nightmares or intrusive recollections.
It was noted that plaintiff was engaging in recreational activities
such as going to the mall and the grocery store.
Plaintiff
reported having some episodes of anxiety and low mood but denied
suicidal thoughts or self-harming behaviors.
Dr. Clarke noted
plaintiff’s mood to be better, but plaintiff articulated continued
suspicion of strangers and worries about being assaulted.
Dr.
Clarke instructed plaintiff to increase her dosage of Effexor and
to continue with Dr. Nanna for psychotherapy.
A renal sonogram
(Tr. 674-75.)
dated January 30, 2008, showed no
hydronephrosis. A thickened bladder wall, most likely secondary to
radiation, was noted.
(Tr. 596.)
A repeat whole body PET performed on February 7, 2008,
showed no definitive evidence for recurrent or metastatic disease.
A cystic structure within the deep pelvis was noted.
evaluation was recommended.
Further
(Tr. 654-55.)
Plaintiff was admitted to Barnes Jewish Hospital on
February 25, 2008, with complaints of nausea, vomiting, and recent
suicidal ideation.
It was noted that plaintiff had attempted
suicide the previous week by medication overdose.
Plaintiff
reported that she was tired of being sick and wanted to go to sleep
and not wake up.
Physical examination showed tenderness and
guarding to palpation along the lower left quadrant of the abdomen.
An abdominal radiography was normal and showed no obstruction.
Plaintiff received counseling and medication therapy during her
- 26 -
admission and was discharged on February 26, 2008. Upon discharge,
plaintiff was prescribed Naproxen for pain, Clonazepam for anxiety,
Colace and Senna for constipation, Prochlorperazine for nausea and
vomiting,
Venlafaxine
Cyclobenzaprine
for
to
alleviate
overactive
depression,
bladder,
antibiotic), and Ranitidine for GERD.
Oxybutynin
Metronidazole
and
(an
(Tr. 607-52.)
Plaintiff returned to the Gynecologic Oncology Clinic for
follow
up
on
unremarkable.
March
19,
2008.
Physical
examination
was
It was noted that an ultrasound performed for
further evaluation of possible cyst yielded normal results, except
for thickening of the bladder wall secondary to radiation therapy.
Plaintiff’s pain medication was changed to Percocet. (Tr. 663-67.)
Plaintiff visited Dr. Clarke on March 19, 2008, and
reported that she felt depressed and that Effexor was not working.
Plaintiff reported having no side effects from the medication.
Plaintiff reported that she had improved
appetite,
but
concentration.
that
she
had
decreased
sleep and increased
energy
and
decreased
Plaintiff reported having hallucinations in that
she hears someone calling her name, sees faces in pictures on the
wall, and has delusions of people being in her home watching her.
Plaintiff reported that she has had such experiences during the
previous two years.
harming
behaviors.
Plaintiff denied suicidal thoughts or selfDr.
Clarke
noted
plaintiff’s
current
medications to include Bactrim, Oxybutynin Chloride, Oxycodoneacetaminophen, Cyclobenzaprine, Ranitidine, and Effexor.
- 27 -
Upon
examination, Dr. Clarke concluded that plaintiff’s symptoms had
worsened and determined to add Risperdal to plaintiff’s medication
regimen to address psychosis.13
Dr. Clarke instructed plaintiff to
reduce her dosage of Klonopin.
Plaintiff was instructed to return
for follow up in one week.
(Tr. 673.)
Plaintiff returned to Dr. Clarke on April 21, 2008, and
reported
feeling
better.
Plaintiff
reported
increased
concentration and that she was engaging in recreational activities.
Plaintiff reported having no hallucinations, delusions, suicidal
thoughts, self-harming behaviors, obsessive rumination, or feelings
of guilt.
Mental status examination was essentially normal, with
plaintiff’s mood noted to be much better, her affect euthymic, and
her insight and judgment noted to be fair.
Dr. Clarke noted
plaintiff to be making good progress and adjusted her dosage of
Risperdal.
(Tr. 716-17.)
Plaintiff visited Dr. Norfleet on May 5, 2008, with
complaints
of
intermittent
diarrhea
and
low
back
discomfort.
Plaintiff reported that Naprosyn did not provide relief for the
pain,
and
that
she
had
previously
examination was unremarkable.
back.
taken
Percocet.
Physical
No tenderness was noted about the
Dr. Norfleet noted plaintiff to have normal mood and affect
and to have normal memory and judgment.
13
Dr. Norfleet instructed
Risperdal is used to treat symptoms of schizophrenia.
Medline Plus (last revised Nov. 15, 2012).
- 28 -
plaintiff to discontinue Percocet and Naprosyn, and Darvocet14 was
prescribed for back pain.
An x-ray was ordered.
(Tr. 680-81.)
Plaintiff returned to the Gynecologic Oncology Clinic on
May
7,
2008,
constipation,
unremarkable.
Tramadol.15
and
and
complained
of
back
Plaintiff’s
of
intermittent
pain.
pain
medication
and
examination
Physical
diarrhea
was
was
changed
to
2008,
and
(Tr. 737-39.)
Plaintiff
visited
Dr.
Clarke
on
May
14,
reported that she continued to hear voices and that she has
conversations with them.
Plaintiff reported that she believed the
voices were from a spirit or the devil.
that she can read people’s minds.
Plaintiff also reported
Plaintiff reported having
suicidal thoughts but did not want to die.
Dr. Clarke noted
plaintiff’s mood to be okay and her affect to be restricted,
depressed,
Risperdal
and
and
flat.
to
start
Dr.
Clarke
plaintiff
determined
on
to
Abilify.16
discontinue
Dr.
Clarke
determined plaintiff’s progress to be poor and instructed her to
return in two weeks for follow up.
(Tr. 714-15.)
On May 27, 2008, plaintiff reported to Dr. Clarke that
14
Darvocet is used to relieve mild to moderate pain. Medline
Plus
(last
revised
Mar.
16,
2011).
15
Tramadol is used to relieve moderate to moderately severe
pain.
Medline Plus (last revised Oct. 15, 2011).
16
Abilify is used to treat the symptoms of schizophrenia.
Medline Plus (last revised May 16, 2011).
- 29 -
she
felt
better.
Mental
status
examination
was
normal
and
plaintiff reported having no hallucinations, delusions, or suicidal
thoughts.
Plaintiff was instructed to continue with her current
regimen and to continue with Dr. Nanna for psychotherapy.
(Tr.
712.)
Plaintiff visited Dr. Clarke on July 18,
reported that she ran out of Abilify two days prior.
2008, and
Dr. Clarke
noted plaintiff’s mood to be better and plaintiff reported having
no hallucinations, delusions, or suicidal thoughts.
Plaintiff was
provided more Abilify and was instructed to continue with Effexor.
(Tr. 710-11.)
Plaintiff
visited
Dr.
Gowri
Kularatna
at
Washington
University Division of Gastroenterology on July 24, 2008, with
complaints of low back pain, GERD symptoms, and bouts of diarrhea
and
constipation.
Dr.
Kularatna
noted
plaintiff’s
current
medications to include Effexor, Percocet, Oxybutynin, Ranitidine,
Tramadol, and Naproxen.
Physical examination showed edema in the
lower extremities and mild tenderness to palpation along the lower
back.
No spinal tenderness was noted with range of motion of the
back.
A colonoscopy and barium enema were scheduled.
Plaintiff
was prescribed Prevacid and was instructed to return in two months.
(Tr. 699-700.)
Plaintiff visited the Gynecologic Oncology Clinic on
August 6, 2008, and had no complaints other than ongoing back pain.
Plaintiff
reported
the
pain
to
- 30 -
be
adequately
relieved
with
Percocet.
Plaintiff reported her symptoms of psychosis to be well
controlled. Physical examination was essentially unremarkable. No
evidence of disease was noted.
Plaintiff was diagnosed with
chronic pelvic/back pain likely due to radiation fibrosis. Refills
of Percocet were given with discussion of the need for decreased
Percocet use.
Naproxen was prescribed.
(Tr. 734-36.)
A colonoscopy performed August 8, 2008, was essentially
normal. (Tr. 684.)
An upper GI endoscopy performed that same date
was essentially normal.
(Tr. 687-88.)
A repeat whole body PET performed on August 14, 2008,
showed no evidence for recurrent or metastatic disease.
(Tr. 719-
20.)
Plaintiff visited Dr. Clarke on September 29, 2008, and
reported that she had run out of Abilify and could no longer afford
the medication due to lack of insurance coverage. Plaintiff’s mood
was noted to be good and plaintiff reported normal sleep, appetite,
concentration, and energy.
Plaintiff reported being engaged in
recreational activities and not to have hallucinations, delusions,
or
suicidal/homicidal
continue
with
medication.
Effexor
thoughts.
and
Plaintiff
Abilify
and
was
was
instructed
given
samples
to
of
(Tr. 708-09.)
Plaintiff returned to the Division of Gastroenterology on
October 16, 2008, and reported continued GERD symptoms.
Plaintiff
also reported that she had been started on Oxycontin for her back
pain and that the pain was better. Plaintiff’s current medications
- 31 -
were noted to include Abilify, Oxybutynin, Oxycontin, and Effexor.
Physical examination was unremarkable. It was noted that plaintiff
worked
in
dietary
plaintiff’s
at
a
constipation
nursing
could
home.
be
a
It
side
was
effect
opined
that
of
pain
her
medication, but irritable bowel syndrome was to be ruled out.
Plaintiff was instructed to start Miralax.
(Tr. 693.)
Plaintiff returned to the Gynecologic Oncology Clinic on
February 25, 2009.
Plaintiff complained of ongoing back pain,
which was adequately relieved with Oxycodone, and had no other
complaints. Plaintiff reported that her symptoms of psychosis were
well controlled. Physical examination was unremarkable, and it was
noted that there was no evidence of disease.
Plaintiff was
diagnosed with chronic pelvic/back pain likely due to radiation
fibrosis, well controlled by Oxycodone.
(Tr. 732-33.)
Plaintiff reported to Dr. Clarke on January 13, 2009,
that she felt “so much better.”
Plaintiff reported that she was
working full time at a nursing home and enjoyed it a great deal.
Plaintiff’s mood was noted to be good and plaintiff reported normal
sleep, appetite, concentration, and energy.
Plaintiff reported
being
and
engaged
in
recreational
activities
not
to
hallucinations, delusions, or suicidal/homicidal thoughts.
have
status
examination
plaintiff’s
symptoms
was
had
normal.
very
much
Dr.
Clarke
improved.
Mental
concluded
Plaintiff
that
was
instructed to continue with Effexor, to decrease her dosage of
Ability, and to continue with Dr. Nanna for psychotherapy.
- 32 -
(Tr.
707.)
Plaintiff visited Dr. Clarke on April 29, 2009.
Dr.
Clarke noted plaintiff’s mood to be good and plaintiff reported
normal sleep, appetite, concentration, and energy.
Plaintiff
reported being engaged in recreational activities and not to have
hallucinations,
delusions,
or
suicidal
thoughts.
Plaintiff
reported that she continued to work in the dietary department at a
nursing
home
and
enjoyed
the
work.
Plaintiff
continued hypervigilance and low moods at times.
examination was normal.
some
Mental status
Dr. Clarke concluded that plaintiff’s
symptoms had very much improved.
Plaintiff was instructed to
Wellbutrin17 was
decrease her dosage of Effexor and Ability.
prescribed.
reported
(Tr. 705-06.)
Plaintiff returned to the Gynecologic Oncology Clinic on
May 6, 2009.
Plaintiff reported having chronic back pain but that
it was well controlled with Oxycodone.
Plaintiff reported her
current pain to be at a level zero.
Physical examination was
unremarkable.
a
Oxycodone.
Plaintiff
was
given
new
prescription
for
(Tr. 729-31.)
On June 11, 2009, Dr. Clarke completed an Assessment for
Social
Security
Disability
Claim
in
which
he
reported
that
plaintiff had been referred to him for evaluation of PTSD.
Dr.
Clarke reported plaintiff’s current symptoms to include low mood,
17
Wellbutrin is used to treat depression. Medline Plus (last
revised Oct. 1, 2009).
- 33 -
hypervigilance,
irritability,
anger,
avoidance, and emotional numbness.
intrusive
recollections,
Dr. Clarke reported that such
symptoms resulted in plaintiff’s inability to function in the life
domains of work, social, and education.
In the category of making
occupational
opined
adjustments,
Dr.
Clarke
that
plaintiff’s
ability to follow work rules, relate to co-workers, and interact
with
supervisors
was
good.
Dr.
Clarke
further
opined
that
plaintiff’s ability to deal with the public, use judgment, deal
with work stress, function independently, and be attentive and
concentrate was fair.
adjustments,
Dr.
In the category of making performance
Clarke
opined
that
plaintiff’s
ability
to
understand, remember, and carry out simple job instructions was
very good.
understand,
Dr. Clarke further opined that plaintiff’s ability to
remember,
instructions was fair.
and
carry
out
complex
or
detailed
job
In the category of making personal-social
adjustments, Dr. Clarke opined that plaintiff’s ability to maintain
personal appearance was good.
Dr. Clarke further opined that
plaintiff’s ability to behave in an emotionally stable manner,
relate
predictably
in
social
situations,
and
demonstrate
reliability was fair. Dr. Clarke stated that recurrent episodes of
PTSD symptoms were probably due to changes in plaintiff’s levels of
stress.
Plaintiff’s current treatment was noted to be medication
therapy with Abilify and Wellbutrin, and psychotherapy. Dr. Clarke
reported that plaintiff’s ability to work was unpredictable from
episode to episode and that plaintiff’s last visit with him showed
- 34 -
her to exhibit recurring flashbacks and hypervigilance. Dr. Clarke
opined that plaintiff should not attempt full-time competitive work
at the present time.
(Tr. 741-42, 744.)
IV.
ALJ’s Decision
The ALJ found plaintiff to meet the insured
status
requirements of the Social Security Act through December 31, 2009.
The ALJ further found that plaintiff had not engaged in substantial
gainful activity since July 14, 2004, finding that plaintiff’s work
subsequent to this date did not rise to the level of substantial
gainful activity.
The ALJ found plaintiff’s cervical cancer in
remission, GERD, and anxiety disorders to be severe impairments,
but that plaintiff did not have an impairment or combination of
impairments which met or medically equaled an impairment listed in
20 C.F.R., Appendix 1,
Part 404, Subpart P.
The ALJ found
plaintiff to have the RFC to perform sedentary work except that
plaintiff
can lift ten pounds occasionally, can sit for
up to six hours per day, walk and stand less
than two hours per day, can occasionally
climb, balance, stoop, bend, kneel, crouch and
crawl; can have no concentrated exposure to
excessive noise, dust, fumes, gases or hazards
such
as
unprotected
heights
or
moving
machinery. The claimant will require simple,
repetitive
work
with
only
occasional
interactions with co-workers, supervisors or
the general public.
(Tr. 17.)
The ALJ found plaintiff unable to perform her past relevant work.
- 35 -
Considering plaintiff’s age, education, work experience, and RFC
and crediting Ms. Young’s responses to vocational interrogatories,
the ALJ determined plaintiff able to perform other work as it
exists in the national economy, and specifically, small products
assembler.
The ALJ thus determined plaintiff not to be under a
disability at any time from July 14, 2004, through the date of the
decision.
(Tr. 13-21.)
V.
Discussion
To be eligible for Social Security Disability Insurance
Benefits and Supplemental Security Income under the Social Security
Act, plaintiff must prove that she is disabled.
Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Secretary
of Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992).
The
Social Security Act defines disability as the "inability to engage
in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months."
423(d)(1)(A), 1382c(a)(3)(A).
disabled
"only
if
[her]
42 U.S.C. §§
An individual will be declared
physical
or
mental
impairment
or
impairments are of such severity that [she] is not only unable to
do
[her]
education,
previous
and
work
work
but
cannot,
experience,
engage
considering
in
any
[her]
other
age,
kind
of
substantial gainful work which exists in the national economy." 42
U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
- 36 -
To
determine
whether
a
claimant
is
disabled,
Commissioner engages in a five-step evaluation process.
the
See 20
C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-42
(1987).
The Commissioner begins by deciding whether the claimant
is engaged in substantial gainful activity.
working, disability benefits are denied.
decides
whether
the
claimant
has
a
If the claimant is
Next, the Commissioner
“severe”
impairment
or
combination of impairments, meaning that which significantly limits
her ability to do basic work activities.
If the claimant's
impairment(s) is not severe, then she is not disabled.
The
Commissioner then determines whether claimant's impairment(s) meets
or equals one of the impairments listed in 20 C.F.R., Subpart P,
Appendix 1.
If claimant's impairment(s) is equivalent to one of
the listed impairments, she is conclusively disabled.
At the
fourth step, the Commissioner establishes whether the claimant can
perform her past relevant work.
disabled.
If so, the claimant is not
Finally, the Commissioner evaluates various factors to
determine whether the claimant is capable of performing any other
work in the economy.
If not, the claimant is declared disabled and
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
- 37 -
person would find it adequate to support the conclusion.
v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
Johnson
This “substantial
evidence test,” however, is “more than a mere search of the record
for evidence supporting the Commissioner’s findings.”
Coleman v.
Astrue, 498 F.3d 767, 770 (8th Cir. 2007) (internal quotation marks
and citation omitted).
“Substantial evidence on the record as a
whole . . . requires a more scrutinizing analysis.”
Id. (internal
quotation marks and citations omitted).
To
determine
whether
the
Commissioner's
decision
is
supported by substantial evidence on the record as a whole, the
Court must review the entire administrative record and consider:
1.
The credibility findings made by the ALJ.
2.
The plaintiff's vocational factors.
3.
The medical evidence from treating and
consulting physicians.
4.
The plaintiff's subjective complaints
relating to exertional and non-exertional
activities and impairments.
5.
Any corroboration by third parties of the
plaintiff's impairments.
6.
The testimony of vocational experts when
required which is based upon a proper
hypothetical question which sets forth
the claimant's impairment.
Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86
(8th Cir. 1992) (quoting Cruse v. Bowen, 867 F.2d 1183, 1184-85
(8th Cir. 1989)).
The Court must also consider any evidence which fairly detracts
from the Commissioner’s decision.
- 38 -
Coleman, 498 F.3d at 770;
Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999).
However,
even though two inconsistent conclusions may be drawn from the
evidence, the Commissioner's findings may still be supported by
substantial evidence on the record as a whole.
Pearsall, 274 F.3d
at 1217 (citing Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir.
2000)).
“[I]f there is substantial evidence on the record as a
whole, we must affirm the administrative decision, even if the
record could also have supported an opposite decision.” Weikert v.
Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal quotation
marks and citation omitted); see also Jones ex rel. Morris v.
Barnhart, 315 F.3d 974, 977 (8th Cir. 2003).
Because
the
ALJ’s
decision
is
not
supported
by
substantial evidence on the record as a whole, the decision should
be reversed and the matter remanded for further proceedings.
A.
Opinion of Single Decision-Maker
In his decision, the ALJ determined that plaintiff had
the RFC to perform sedentary work with certain limitations.
In
reaching this conclusion, the ALJ noted that “there were no real
medical source statements from the claimant’s treating providers,”
and determined to accord little weight to Dr. Clarke’s written
evaluation inasmuch as, as a physician’s assistant, Dr. Clarke was
not an acceptable medical source.
(Tr. 19.)
The ALJ, however,
determined to accord great weight to the opinion rendered by the
State agency:
The State agency source determined that the
- 39 -
claimant could sit for six hours per day,
stand or walk about two hours per day, could
lift ten pounds occasionally and that she
could only occasionally climb, balance, stoop,
bend, kneel, crouch and crawl; can have no
concentrated exposure to excessive noise,
dust, fumes, gases or hazards such as
unprotected heights or moving machinery. The
State agency opinion is essentially accurate
and is afforded great weight.
(Id.)
Like Dr. Clarke, however, the “State agency source” was not an
acceptable medical source but instead, as conceded by the defendant
in his brief, a non-physician “single decision maker” incapable of
providing a medical opinion.
The
Regulations
(Deft.’s Brief, Doc. #20, at p. 10.)
require
an
ALJ
to
“explain
in
the
decision the weight given to the opinions of a State agency medical
or
psychological
consultant
or
other
program
physician
or
psychologist.” 20 C.F.R. §§ 404.1527(f)(2)(ii), 416.927(f)(2)(ii).
A medical consultant must be an “acceptable medical source,” that
is, a licensed physician, a
licensed optometrist, a licensed
podiatrist, or a qualified speech-language pathologist.
§§ 404.1616(b), 416.1016(b).
provide medical opinions.
20 C.F.R.
Only acceptable medical sources can
Sloan v. Astrue, 499 F.3d 883, 889 (8th
Cir. 2007) (citing 20 C.F.R. § 404.1527(a)(2)).
In addition,
pursuant to Social Security Ruling (SSR) 96-6p, “[f]indings of fact
made by State agency medical and psychological consultants and
other program physicians and psychologists regarding the nature and
severity of an individual’s impairment(s) must be treated as expert
- 40 -
opinion evidence of nonexamining sources at the administrative law
judge . . . level[] of administrative review.”
SSR 96-6p, 1996 WL
362203, at *34467 (Soc. Sec. Admin. July 2, 1996) (emphasis added).
“[T]he administrative law judge . . . must consider and evaluate
any assessment of the individual’s RFC by a State agency medical or
psychological
consultant
psychologists.”
and
by
other
program
physicians
or
Id. at *34468 (emphasis added).
Within the context of determining plaintiff’s RFC, the
ALJ cited to SSR 96-6p and stated that he had considered opinion
evidence in accordance therewith.
ALJ
is
to
treat
psychological
the
opinions
consultants
and
(Tr. 17.)
of
State
other
psychologists” as expert opinions.
Under SSR 96-6p, an
agency
program
“medical
and
physicians
and
In this case, however, the
record contains no opinion rendered by such an accepted State
agency source.
Instead, the only opinion rendered by the State
agency, and upon which the ALJ accorded “great weight,” was that
offered by S. Greenberg, a non-physician “single decision maker”
for disability determinations.18
This was error.
18
This practice has been called into question by a number of
courts with such concern aptly summarized by the District Court of
Kansas:
The court is troubled by the Commissioner's use of
RFC Assessment forms completed by “single decision
makers” who are not “acceptable medical sources” within
the meaning of the regulations but who “sign” the forms
by placing their name (without title such as Mr., Ms.,
M.D., or Ph.D.) in the space designated “Medical
Consultant's Signature” and without explanation that they
are not an “acceptable medical source,” a medical
- 41 -
The
ALJ’s
determination
as
to
plaintiff’s
RFC
substantially mirrors the findings made in S. Greenberg’s RFC
Assessment.
The
ALJ’s
citation
to
SSR
96-6p
in
his
RFC
determination strongly suggests that the ALJ weighed the opinion of
a lay person under the rules appropriate for weighing the opinion
of a medical consultant, “which would be a legal error in applying
the ruling.”
While
the
Dewey v. Astrue, 509 F.3d 447, 449 (8th Cir. 2007).
Commissioner
argues
that
other
evidence
of
record
supported the ALJ’s decision, the undersigned cannot say that the
ALJ’s reliance on an unqualified opinion was harmless in light of
the ALJ’s near-blanket rejection of another, more restrictive
opinion for the sole reason that it
was not rendered by an
acceptable medical source.
Therefore, the ALJ's RFC determination was not supported
by substantial evidence on the record as a whole.
This cause
should be remanded to the Commissioner for a proper assessment of
plaintiff's functional limitations resulting from her impairments.
Upon
remand,
acceptable
the
medical
Commissioner
sources
should
regarding
obtain
information
plaintiff’s
physical
from
and
mental impairments, and properly consider expert opinion evidence.
Dixon v. Barnhart, 324 F.3d 997, 1003 (8th Cir. 2003); Nevland v.
consultant, or any kind of medical professional. This
practice leads to errors where ALJ's accept or rely upon
the SDM's RFC assessment as a medical opinion.
Kempel v. Astrue, No. 08-4130-JAR, 2010 WL 58910, at *7 (D. Kan.
Jan 4, 2010), and cases cited therein.
- 42 -
Apfel, 204 F.3d 853, 858 (8th Cir. 2000); Vaughn v. Heckler, 741
F.2d 177, 179 (8th Cir. 1984).
B.
RFC Finding Precludes Employment
The ALJ determined that plaintiff had the RFC to perform
sedentary work with certain limitations, including that plaintiff
could “sit for up to six hours per day, walk and stand less than
two hours per day[.]”
(Tr. 17.)
Plaintiff argues that such an RFC
precludes full time employment inasmuch as being restricted to six
hours sitting and less than two hours standing and walking would
limit
her
to
working
less
than
eight
hours
per
day.
The
Commissioner concedes that the ALJ’s finding that plaintiff could
“walk and stand less than two hours per day” is ambiguous, but
argues that what the ALJ meant to say was that plaintiff could walk
less than two hours per day and stand less than two hours per day,
not
that
she
combination.
could
walk
and
stand
less
than
two
hours
in
(Deft.’s Brief, Doc. #20, at p. 11.)
“Ordinarily, RFC is the individual's maximum remaining
ability to do sustained work activities in an ordinary work setting
on a regular and continuing basis[.] . . .
A ‘regular and
continuing basis' means 8 hours a day, for 5 days a week, or an
equivalent work schedule.”
SSR 96-8p, 1996 WL 374184, at *2 (Soc.
Sec. Admin. July 2, 1996) (emphasis in original).
“RFC does not
represent the least an individual can do despite his or her
limitations or restrictions, but the most.” Id. (emphasis in
original); see also 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
- 43 -
Here, the ALJ found that plaintiff had the RFC to “sit
for up to six hours per day, walk and stand less than two hours per
day[.]”
finding
This statement can reasonably be read to constitute a
that
plaintiff
had
the
ability
combined, for less than two hours a day.
to
“walk
and
stand,”
When coupled with the
finding that plaintiff could sit for only six hours, plaintiff’s
RFC would preclude her from performing work on a regular and
continuing basis inasmuch as she would be unable to perform work
eight hours a day.
On the other hand, the Commissioner argues
that, because the ALJ ultimately found plaintiff able to perform
sedentary work, his ambiguous RFC finding necessarily implies that
plaintiff’s walking and standing abilities were not meant to be
combined, but rather were to be considered separately, that is,
that plaintiff could walk less than two hours a day and stand less
than two hours a day.
An ALJ’s final determination of non-disability is not
supported
by
substantial
evidence
ambiguous RFC determination.
when
it
is
based
upon
an
See Tyner v. Astrue, No. 4:08CV1895
MLM, 2009 WL 2182374, at *13 (E.D. Mo. July 22, 2009).
Because the
ambiguity involved in this case turns on whether or not plaintiff
has the RFC to perform work throughout an eight-hour workday, it
cannot
be
said
determination
that
was
the
reliance
harmless.
Cf.
on
such
Wonsewitz
an
v.
ambiguous
RFC
Astrue,
No.
4:11CV1307 MLM, 2012 WL 3548034, at *18 (E.D. Mo. Aug. 16, 2012)
(ambiguous RFC determination had no affect on outcome of the case).
- 44 -
The matter should therefore be remanded to the Commissioner for
clarification of plaintiff’s RFC, keeping in mind that a claimant’s
ability to do sustained work activities in an ordinary work setting
on a regular and continuing basis means eight hours a day, for five
days a week, or an equivalent work schedule.
C.
Pain as a Severe Medical Impairment
Plaintiff argues that, at step 2 of the sequential
evaluation, the ALJ erred when he failed to consider her pain as a
severe impairment.
Disability is based upon an individual’s severe medically
determinable physical or mental impairment(s) or combination of
impairments.
At step 2 of the sequential evaluation process, an
impairment or combination of impairments is considered “severe” if
it
significantly
limits
the
individual's
abilities to do basic work activities.
physical
or
mental
SSR 96-3p, 1996 WL 362204,
at *34469 (Soc. Sec. Admin. July 2, 1996).
Pain, while a symptom
of a medically determinable impairment, is not an impairment in and
However, if the individual has a medically
of itself.
Id.
determinable
impairment
that
could
reasonably
be
expected
to
produce symptoms such as pain, symptom-related limitations and
restrictions must be considered at step 2 in determining whether
the medically determinable impairment is severe.
70.
Id. at **34469-
See also 20 C.F.R. §§ 404.1529(b), 416.929(b) (symptoms will
not be found to affect a claimant's ability to do basic work
activities unless medical signs or laboratory findings show that a
- 45 -
medically determinable impairment is present.)
The
ALJ
here
found
plaintiff’s
cervical
cancer
in
remission, GERD, and anxiety disorders to be severe impairments.
The record shows plaintiff to have pain as a residual symptom of
her cancer treatments and, indeed, subsequent to step 2 of the
analysis, the ALJ noted such residuary pain and back pain to limit
(See Tr. 16.)
plaintiff’s functional abilities.
As such, the ALJ
considered plaintiff’s symptom-related limitations in his analysis.
Contrary to plaintiff’s argument, however, pain is not in itself a
medically determinable impairment.
The ALJ therefore did not err
at step 2 by failing to find plaintiff’s pain to constitute a
severe impairment.
D.
Reliance on Inconsistent Testimony of Vocational Experts
Plaintiff
argues
that
the
ALJ
erred
by
relying
on
inconsistent testimony obtained from three vocational experts to
find plaintiff not disabled.
A review of the ALJ’s decision shows that, in finding
plaintiff
vocational
not
disabled,
expert
interrogatories.
the
Brenda
ALJ
Young
(Tr. 20-21.)
relied
in
on
answers
response
to
given
by
vocational
A review of the hypothetical
question posed to Ms. Young, however, shows it not to capture all
of
plaintiff’s
determination.19
limitations
as
found
by
the
ALJ
in
his
RFC
In the written interrogatory, the ALJ asked Ms.
19
Even in the absence of the ALJ’s ambiguous finding regarding
plaintiff’s ability to stand and walk, see discussion supra at
Section V.B, the interrogatory posed to Ms. Young did not encompass
- 46 -
Young
to
consider
limitations:
an
individual
with
the
following
postural
“occasional balance, stoop, crouch, kneel, crawl[.]”
(Tr. 312.)
In his written RFC determination, however, the ALJ
found that plaintiff had additional postural limitations, that is,
that she was also limited to only occasional climbing and bending.
(Tr. 17.)
Because these additional limitations were not included
in the hypothetical to Ms. Young, it cannot be said that Ms.
Young’s response constitutes substantial evidence to support the
ALJ’s finding that plaintiff can perform work as described by Ms.
Young.
See Baker v. Apfel, 159 F.3d 1140, 1144 (8th Cir. 1998).
Therefore,
for
all
of
the
foregoing
reasons,
the
Commissioner’s adverse decision is not supported by substantial
evidence on the record as a whole, and the cause should be remanded
to the Commissioner for further consideration.
Accordingly,
IT
IS
HEREBY
Commissioner
is
REVERSED
ORDERED
and
that
this
the
cause
decision
is
REMANDED
of
the
to
the
Commissioner for further proceedings.
Judgment shall be entered accordingly.
UNITED STATES MAGISTRATE JUDGE
Dated this
29th
day of January, 2013.
all of the ALJ’s RFC findings as set out in his written decision.
- 47 -
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