Rice v. Social Security Administration
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. A separate Judgment in accordance with this Memorandum and Order will be entered this same date. Signed by District Judge Carol E. Jackson on 1/24/13. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
DEBORAH R. RICE,
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Case No. 4:11-CV-1961 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court for review of an adverse ruling by the Social
I. Procedural History
On February 17, 2009, plaintiff Deborah R. Rice protectively filed applications for
disability insurance benefits, Title II, 42 U.S.C. §§ 401 et seq., and supplemental
security income, Title VI, 42 U.S.C. §§ 1381 et seq., with an alleged onset date of
December 23, 2007. (Tr. 151, 134-41). After plaintiff’s applications were denied on
initial consideration (Tr. 66-68, 71-75), she requested a hearing from an Administrative
Law Judge (ALJ). (Tr. 78-84).
Plaintiff and counsel appeared for a hearing on April 7, 2010. (Tr. 37-65). The
ALJ issued a decision denying plaintiff’s application on June 23, 2010. (Tr. 15-32).
The Appeals Council denied plaintiff’s request for review on October 4, 2011. (Tr. 1-6).
Accordingly, the ALJ’s decision stands as the Commissioner’s final decision.
II. Evidence Before the ALJ
A. Disability Application Documents
In her Disability Report (Tr. 160-69), plaintiff listed her disabling conditions as
depression, and problems with her hands, arms, knees, back, and neck. She stated
that she could not stand for long periods or climb stairs due to pain in her knee. She
complained of pain in her right arm that radiated into her neck and back and stated
that she had developed pain in her left side as a result of trying not to overuse her
right side. Numbness in her hand and elbow kept her from sleeping well. On occasion,
she had a stiff neck that lasted for several weeks.
She had last worked on the
assembly line at an automobile assembly plant. She was prescribed Ibuprofen and
Naproxen for pain, Fluoxetine and Buproprion for depression, and Trazadone as a sleep
aid. Her medications caused her to feel drowsy and lightheaded. (Tr. 195).
Plaintiff completed a Function Report on March 21, 2009. (Tr. 171-80). In
response to a question regarding her average daily activities, plaintiff wrote that she
showered, ate, read, and watched television. She occasionally did a small amount of
cleaning. Some days, she woke up in pain and stayed in bed and cried. She stated
that she felt a stabbing pain in her neck, back, and shoulder and that it was painful to
lift a glass of water. She had difficulty combing her hair and completing her hygiene.
She usually prepared sandwiches and frozen meals for herself; family members
brought her meals as well. She no longer cooked for herself more often than once
every week or two because she could not lift pots and pans and was worried about
dropping something hot. She stated that she did light cleaning and laundry. She went
out two or three times a week. She was able to drive unless she was in pain. She
shopped once every three weeks. She was able to pay bills, manage a checkbook, and
count change. Plaintiff played slot machines about three times a month and attended
church twice a month. She had difficulties with lifting, squatting, bending, standing,
reaching, walking, kneeling, stair climbing, completing tasks, concentrating, using her
hands, and getting along with others. She could walk half a block before she needed
to rest for about 5 minutes. When she was pain-free, she could follow instructions very
However, she did not handle stress or changes in routine well.
B. Hearing on April 7, 2010
Plaintiff was 52 years old at the time of the hearing. She left school in the
eleventh grade and had not obtained a GED. (Tr. 39).
Plaintiff testified that she worked on the assembly line at General Motors from
1996 to December 2007, when the plant closed for Christmas. Despite four surgical
procedures and large doses of Ibuprofen, she had problems with her arm, back, and
knee, and was unable to keep up on the line. She stated that she was afraid she would
be fired and, in June 2008, she accepted the company’s buyout offer, for which she
She also received $48,934.05 in settlement of her
worker’s compensation claims that year. (Tr. 22).
Plaintiff testified that she had arthritis in her right hand, elbow, and shoulder.
The pain started in her right fingers and went all the way up her arm and across her
shoulder. (Tr. 46). Her right shoulder ached across her back and into her neck;
occasionally the pain caused headaches. (Tr. 45). She often experienced a sharp pain
with movement; she also complained of tingling and numbness. Her right elbow was
numb and she was unable to rest it on a surface. She often dropped things and was
afraid to cook. She had been using her left hand more but it had begun to hurt as
much as her right hand, and she was developing tennis elbow and carpal tunnel
syndrome in her left arm. She also complained of muscle spasms in her left shoulder.
She had difficulty reaching above shoulder height. Plaintiff’s back pain made it difficult
for her to climb stairs and she could not sit, stand or walk for very long. Occasionally,
she was unable to turn her head from one side to the other. Her right knee was prone
to swelling and stiffness, making it difficult for her to squat or bend. She sometimes
wore a brace on her knee, but she thought it made the swelling worse. She suffered
from migraine headaches that might last as long as four days or a week.
Naproxen provided some relief, she was never pain-free. She testified that she was
no longer able to bowl or play darts.
Plaintiff was being treated for depression and anxiety attacks. She sometimes
had anxiety attacks while driving and had to call her sisters to pick her up. She
testified that she sometimes acted mean or moody and so she preferred to avoid other
people. When asked whether there were times when she did not get out of bed or
leave the house, she replied “[w]eeks at a time.” (Tr. 48). She explained that there
are days when she wakes up and feels like she is “just ready to end it all” because she
is tired of “the pain and suffering of depression.” She testified that she experienced
nightmares, especially about family members who had died in recent years. She was
no longer able to concentrate enough to read and had difficulty with her memory.
When asked why she had not sought work, plaintiff testified that she was in pain
a lot, she dropped things, and she was seeing a psychiatrist and counselor. She had
tried babysitting, but could not “deal with the kids.” After surgery on her right elbow
and shoulder, she was released to work with a restriction on lifting more than 30
pounds. Plaintiff acknowledged that no treating physician had changed that restriction.
(Tr. 42). Plaintiff confirmed that she smoked marijuana. She testified that it helped
her to sleep when she was unable to obtain her medication. When asked about the
frequency of her use, she stated that she had smoked twice in a little more than a
week. She also confirmed that she consumed four or five alcoholic beverages a week.
Malcom J. Brodzinsky, M.A., a vocational expert, provided testimony regarding
the employment opportunities for an individual with plaintiff’s education, training and
work experience, with the ability to lift and carry 20 pounds occasionally, and 10
pounds frequently; stand, walk and sit for 6 hours out of 8; occasionally climb stairs
and ramps, balance, stoop, kneel, crouch and crawl; and with restrictions on overhead
In addition, the hypothetical individual had the ability to understand,
remember and carry out simple instructions and non-detailed tasks; had adequate
judgment to make simple work-related decisions; was able to respond appropriately
to supervisors and co-workers; and could adapt to routine simple work changes. Mr.
Brodzinsky opined that such an individual would not be able to perform plaintiff’s past
relevant work but could work as a small parts assembler, small products assembler,
or ticket seller.
Mr. Brodzinsky was next asked to assume that the individual was
extremely restricted in the areas of understanding, remembering and carrying out
detailed instructions; interacting appropriately with the public, co-workers, and
supervisors; and responding appropriately to work pressures and changes in the work
He testified that such an individual would be precluded from working. (Tr.
Plaintiff’s counsel also posed hypothetical questions to the vocational expert.
She first asked him to assume that the individual was limited to lifting 15 pounds
occasionally and 10 pounds frequently, and thus was capable of only sedentary work.
Mr. Brodzinsky opined that these limitations would not preclude the individual from
performing work as a small parts assembler or ticket seller, even though these jobs are
classified as light work by the Dictionary of Occupational Titles (DOT). He explained
that the exertion classification for these positions was a function of the amount of
standing and walking required. He stated that many assembler and ticket seller jobs
were actually performed at the sedentary level. (Tr. 60-61). In the next hypothetical,
counsel asked Mr. Brodzinsky to assume that the individual could lift 10 pounds
occasionally, walk or stand 2 hours out of 8, sit for 6 hours out of 8, and could reach
He responded that an individual with these limitations would be
precluded from work. (Tr. 63-64).
C. Medical Evidence
On November 29, 2005, William G. Sedgwick, M.D., diagnosed plaintiff with
epicondylitis and early cubital tunnel syndrome1 in the right elbow. (Tr. 585). On
February 27, 2006, Dr. Sedgwick performed an ulnar nerve transposition and tennis
During a course of post-operative physical therapy,
plaintiff began to complain of pain in her right shoulder. (Tr. 230-35). On August 8,
2006, Dr. Segwick performed surgery on plaintiff’s right shoulder to treat impingement
and arthrosis of the acromioclavicular joint. (Tr. 214-15). Plaintiff went to physical
therapy which improved the shoulder’s strength and range of motion, as well as her
ability to perform daily activities. (Tr. 247-49, 252-54). Plaintiff continued to be
limited in her ability to reach across her body or behind her back. (Tr. 252-54).
Plaintiff’s primary care physician referred her for a psychiatric evaluation of
depression. (Tr. 415). On April 17, 2007, plaintiff saw Aqeeb Ahmad, M.D. (Tr. 38688). She reported that she feared dying and had panic attacks. She cried a lot and
Lateral and medial epicondylitis (tennis elbow and golfer’s elbow, respectively)
are the result of inflammation of tendons in the elbow. http://www.webmd.com/painmanagement/guide/elbow-pain (last visited Nov. 29, 2012). Cubital tunnel syndrome
is a nerve entrapment syndrome involving the ulnar nerve. http://www.webmd.com
/a-to-z-guides/pinched-nerve-in-or-near-the-elbow-topic-overview (last visited Nov.
had difficulty concentrating.
On mental status examination, plaintiff exhibited a
depressed mood with dysphoric and anxious affect. She was tearful and had slowed
motor responses. Dr. Ahmad diagnosed plaintiff with major depression with a Global
Assessment of Functioning (GAF) score of 45,2 and prescribed Fluoxetine and Ambien.
The record contains notes of seven additional sessions between April and August 2007.
(Tr. 374-89). Throughout that time, plaintiff continued to present with panic attacks
and crying. On May 4, 2007, Dr. Ahmad increased the dosage of Fluoxetine and added
Xanax. (Tr. 384). On June 13 and June 27, 2007, Dr. Ahmad assigned plaintiff a GAF
score of 59. (Tr. 381-82). On August 20, 2007, plaintiff was started on Cymbalta; her
GAF was 55.
At the following visit on August 28, 2007, plaintiff was
depressed, worried, anxious and tearful. She reported that she was in constant pain
and could not properly do her job because she fell behind on the assembly line. Her
GAF on that day was 50. (Tr. 379).
On August 1, 2007, Shawn L. Berkin, D.O., completed an independent medical
examination with respect to occupational injuries to plaintiff’s right arm and knee. (Tr.
303-17). On examination, Dr. Berkin noted slight muscle wasting but no instability in
either shoulder joint. The drop-arm test was negative while an impingement test was
positive. Plaintiff experienced pain during range of motion testing of the shoulder. She
had full range of motion of the right elbow. Tinel’s sign was present at the elbow and
hand and her grip strength was lower on the right than left. Her station and gait were
normal. She had a normal lumbar curve with midline tenderness over lumbar column.
A GAF of 41-50 corresponds with “serious symptoms OR any serious
impairment in social, occupational, or school functioning.” American Psychiatric
Association, Diagnostic & Statistical Manual of Mental Disorders - Fourth Edition, Text
Revision 34 (4th ed. 2000).
Straight leg raising was positive on the left. The Patrick (FABER) test3 was negative
bilaterally. Plaintiff’s right knee showed no instability, swelling or effusion, and tests
for tears or ruptures in the knee were negative. Her reflexes were normal. She
experienced pain on range of motion testing and was unable to squat.
Dr. Berkin opined that plaintiff had a 20% permanent partial disability of the
body as a whole at the level of the cervical spine; a 35% permanent partial disability
of the upper right extremity at the level of the shoulder; a 50% permanent partial
disability of the right upper extremity at the level of the elbow; a 15% permanent
partial disability of the left upper extremity at the level of the shoulder; and a 15%
permanent partial disability of the right lower extremity at the knee. He recommended
the use of nonsteroidal anti-inflammatory medication and participation in a home
exercise program to strengthen and improve the mobility of her neck, arms, and knee.
He imposed a 35-pound lifting restriction on an occasional basis with a 25-pound limit
on frequent lifting. He instructed plaintiff to avoid holding her neck in a fixed position
for a long period and rapid or extreme neck movements. He further opined that she
should avoid lifting with her arms extended from her body or excessive lifting or
working above shoulder level. She should also avoid excessive squatting, kneeling,
stooping, turning, twisting, and climbing. Finally, Dr. Berkin indicated that plaintiff
required frequent breaks during periods of extended exertion.
On December 7, 2007, plaintiff was diagnosed with osteoarthritis in the right
knee. (Tr. 333).
The Patrick (FABER) test is used to identify the presence of hip pathology by
attempting to reproduce pain in the hip, lumbar spine and sacroiliac region.
http://www.physio-pedia.com/FABER_Test (last visited on Nov. 29, 2012).
On February 19, 2008, Dr. Sedgwick also completed an evaluation with respect
to plaintiff’s occupational injuries. (Tr. 346-49). On examination, plaintiff had full
range of motion of the right shoulder with some discomfort; impingement signs were
negative. Her right knee showed some crepitus without effusion or tenderness. Dr.
Sedgwick’s impression was status post surgery at the right elbow and shoulder,
arthrosis patellofemoral articulations, and slight disc bulging from C3 through C7. He
opined that plaintiff sustained 15% permanent residual disability of the right upper
extremity at the level of the elbow, an additional 10% permanent residual disability of
the upper right extremity at the level of the shoulder, and a 2% permanent residual
disability of the body as a whole at the level of the cervical spine. She had no residual
disability at the right knee.
On June 16, 2009, Saul Silvermintz, M.D., completed a consultative
examination. (Tr. 424-31). Plaintiff complained of persistent pain in her hands, arms,
knees, back, and neck. Both sitting and standing made the pain in her back worse.
She had trouble making a fist and dropped things. On examination, Dr. Silvermintz
noted limitations in range of motion in her neck and both shoulders. Plaintiff had no
edema or swelling. Her gait was normal and she was able to get on and off the
examination table without difficulty.
Dr. Silvermintz opined that plaintiff had
degenerative disc disease with pain, and was status post surgery of the right shoulder
and elbow, resulting in limitations in the range of motion of her right arm.
Also on June 16, 2009, L. Lynn Mades, Ph.D., completed a consultative
Plaintiff reported that she experienced
significant stress arising from the deaths since 2003 of her mother, her father, a sister
and a nephew. Her symptoms included weight gain, sleep problems, difficulty with
concentrating and remembering; not wanting to be bothered by others; and crying a
lot. She was irritable. She had four alcoholic drinks a week and occasionally used
marijuana. Dr. Mades described plaintiff as displaying a “generally cooperative” and
pleasant attitude, with an alert expression and fair eye contact. Her motor activity was
“mildly tense” and agitated. Her speech was spontaneous, coherent, relevant, and
logical. Her mood was depressed and her affect, though generally appropriate, was
restricted. There was no evidence of a thought disturbance. She could repeat 6 digits
forward and could name the president, but not the governor or mayor. Her insight and
judgment were fair.
She displayed adequate attention and concentration, with
appropriate persistence and pace. With respect to her activities of daily living, plaintiff
reported that she lived alone. She handled few household chores, sometimes cooking
or fixing her bed. She was able to drive. Her activities included going to a casino,
watching television, and reading. She reported that she got along “adequately” with
others, but also reported increased irritability and decreased sociability. Dr. Mades
diagnosed plaintiff with major depressive disorder, single episode, mild, with a rule-out
diagnosis of cannabis abuse. She assigned plaintiff a GAF of 65.4
On July 8, 2009, Shirley A. Marshall, M.D., completed an initial primary care visit
with plaintiff. (Tr. 537-38). Plaintiff complained of pain in her right arm, which she
rated at level 5 on a 10-point scale. On examination, Dr. Marshall noted that there
was no redness, swelling, atrophy, myalgia or swelling of extremities.
displayed normal posture.
The right knee showed minimal crepitus without
A GAF of 61-70 corresponds with “Some mild symptoms . . . OR some difficulty
in . . . social, occupational, or school functioning, . . . but generally functioning pretty
well, has some meaningful interpersonal relationships.” American Psychiatric
Association, Diagnostic & Statistical Manual of Mental Disorders - Fourth Edition, Text
Revision 34 (4th ed. 2000).
tenderness, laxity or effusion. She had mild pain on movement of the right elbow and
showed discomfort when lifting her arm above her head. X-rays of the right shoulder
and elbow were negative, while an x-ray of the right knee revealed mild osteoarthritis.
Dr. Marshall referred plaintiff for evaluation for mental health services. On July
8, 2009, plaintiff met with Doris King, M.S.W. (Tr. 536). Plaintiff reported feeling
“stressed out” and depressed over pain and financial circumstances. She reported that
she planned to start a day-care service in her home because she could no longer work
on the assembly line.
She had been depressed for some years, starting in
adolescence. Recently, she stayed in bed and cried and tended to isolate herself more.
She enjoyed eating out but did this less frequently because of her finances and her
mood. She attended church, which she found helpful. Ms. King gave plaintiff a referral
to a counseling program. The record contains notes of counseling sessions between
November 2009 and January 2010. (Tr. 505-07; 513, 516, 520, 522).
On July 20, 2009, Robert Cottone, Ph.D., completed a Psychiatric Review
Technique form. (Tr. 439-49). Based upon his review of the record, Dr. Cottone
determined that plaintiff had a depressive disorder that did not rise to the level of a
severe impairment. He opined that she had mild restrictions in the activities of daily
living, and moderate difficulties in maintaining social functioning, concentration,
persistence, and pace. Plaintiff had had one or two episodes of decompensation. In
a narrative section, Dr. Cottone noted that plaintiff’s application did not list any
treatment for depression and she had last seen her psychiatrist Dr. Ahmad on April 1,
2008. At that time, she rated her depression at level 4 or 5 on a 10-point scale. Dr.
Cottone also noted that, on June 16, 2009, Dr. Mades diagnosed plaintiff with major
depressive disorder, single episode, mild. Statements plaintiff made in her Function
Report established that she lived alone and functioned without reminders. She was
capable of fixing simple meals, managing money, shopping for basic needs, and driving
a car. Dr. Cottone opined, “This is a mild depressive [disorder]. She would be limited
moderately socially and [maintaining concentration, persistence, and pace] at worst.”
Dr. Cottone also completed a Mental Residual Functional Capacity Assessment.
(Tr. 450-52). He indicated that plaintiff had marked limitations in the abilities to
understand, remember and carry out detailed instructions; moderate limitations in the
abilities to maintain attention and concentration for extended periods and to work in
coordination with or proximity to others without being distracted. Dr. Cottone also
indicated that plaintiff had moderate limitations in the abilities to complete a normal
workday and workweek without interruption from psychologically based symptoms; to
perform at a persistent pace without an unreasonable number and length of rest
periods; to interact appropriately with the public and coworkers; and to accept
instruction and respond to criticism. There was no evidence of any limitation in her
ability to sustain an ordinary routine without special supervision.
Marsha Muckermann-McCall, D.O., completed a Physical Residual Functioning
Capacity Assessment (PRFCA) on July 20, 2009 (Tr. 453-59). Based on a review of the
medical records, Dr. McCall determined that plaintiff was able to frequently lift and/or
carry 10 pounds, and occasionally lift and/or carry 15 pounds. She was able to sit,
stand, or walk about 6 hours in an 8 hour day, and had no limitations in pushing or
She had limited capacity to reach, including overhead, and should avoid
vibration and hazards. Dr. McCall noted that Dr. Berkin imposed greater restrictions
in 2007 than Dr. Sedgwick did in 2008, and that in June 2009, Dr. Silvermintz reported
that plaintiff displayed a normal gait and was able to move around the room well. In
addition, she had full grip strength, with no weakness in her extremities or difficulty
with fine finger movements. She demonstrated limited range of motion of her right
Plaintiff was seen by William Feldner, D.O., for evaluation of her right shoulder
and knee pain on July 30, 2009. (Tr. 530-31). On examination of plaintiff’s shoulder,
Dr. Feldner noted mild tenderness on palpation and some creaking. There was no
swelling. Range of motion testing was limited due to guarding and pain. Drop-arm
and empty-can tests were negative, as were tests of instability.
With respect to
plaintiff’s elbow, there was no pain or tenderness to palpation. Dr. Feldner noted
normal strength and tone, normal range of motion, normal reflexes, and normal
carrying angle. Plaintiff’s knee was moderately tender on palpation, but there was no
evidence of swelling or effusion. A test for instability of the knee joint was negative,
while the anterior patellar grind test and a test for meniscal tear were positive. Dr.
Feldner opined that plaintiff’s shoulder pain might be cervical in origin, whereas the
pain in her knee was due to osteoarthritis. He recommended to plaintiff that she
maintain strength and flexibility, lose weight, and continue to take Naprosyn. He
instructed her on the use of ice and resting and gave her exercises to do on her own.
He counseled her to have “realistic expectations” of her prescriptions. He did not
impose any limitations on her activities.
In December 2009, plaintiff told Dr. Marshall that the Naprosyn was effective
about 80% of the time. (Tr. 517).
On January 4, 2010, Richa Bhatia, M.D., completed a psychiatric evaluation of
plaintiff, on referral from Dr. Marshall. (Tr. 496-99). Plaintiff reported that she had
difficulty dealing with the loss of her family members and was feeling stress over her
finances. She reported a desire to “not be here” and was isolating herself from others.
Dr. Bhatia noted that plaintiff endorsed signs of anhedonia, hopelessness, and
worthlessness. Plaintiff reported that she had difficulty focusing and that her energy
level was poor. She was seeing a counselor once a week. Dr. Bhatia described plaintiff
as calm, pleasant, and cooperative, with good eye contact and depressed mood. Her
affect was tearful at times, but otherwise was restricted. Her thought processes were
logical and her memory was intact. Dr. Bhatia opined that plaintiff’s impulse control,
insight, judgment and intelligence were fair. Dr. Bhatia diagnosed plaintiff with major
depressive disorder, with rule-out diagnoses of dysthymia and general anxiety
disorder, and assigned a GAF rating of 55.
Plaintiff’s dosages for Fluoxetine and
Trazadone were increased.
On February 22, 2010, plaintiff reported to Dr. Bhatia that she sometimes heard
the doorbell ringing when no one is there. (Tr. 495). She stated that she was afraid
to cook due to the pain in her right arm and left elbow. She had no energy some days
and felt helpless and hopeless. Nonetheless, she felt that the medications were helpful
and she was less tearful.
She indicated that the pain in her arm was her worst
problem and that she sometimes felt like cutting off the arm.
cooperative, goal-directed and logical, with spontaneous and responsive speech. Dr.
Bhatia’s assessment was that plaintiff’s mild to moderate depressive symptoms
persisted but showed improvement. Dr. Bhatia did not record a GAF score at this
Dr. Bhatia completed a Medical Source Statement on March 8, 2010. (Tr. 49092).
Dr. Bhatia indicated that plaintiff suffered from severe anxiety, depressive
symptoms, and panic attacks. As a result of these conditions, plaintiff had extreme
restrictions in her ability to understand, remember, and carry out detailed instructions;
and marked restrictions in her ability to make judgments on simple work-related
decisions. She also had extreme restrictions in her abilities to interact appropriately
with the public, supervisors, and co-workers, and to respond appropriately to work
pressures and changes in a routine work setting. Dr. Bhatia did not believe that
plaintiff could manage her benefits in her own interest.
On March 22, 2010, plaintiff reported to Dr. Bhatia that she was feeling more
sad. (Tr. 494). She had crying spells, low energy and a poor appetite, and wished
that she were dead. She was only sporadically taking her medication and her sleep
patterns were disrupted. On June 7, 2010, plaintiff reported to Dr. Bhatia that her
depressive symptoms had improved with medication, but sad days still outnumbered
happy ones. She attributed her unhappiness to her financial situation. (Tr. 654).
Plaintiff was evaluated by Robert P. Poetz, D.O., on March 23, 2010. (Tr. 63541). On examination, Dr. Poetz noted that plaintiff ambulated with a normal gait. She
had decreased range of motion of her right elbow and both shoulders, more so on the
right side. Her grip strength was decreased on the right side. She had crepitus in the
right knee. Her cervical spine displayed decreased range of motion. Straight leg
raising was negative and there were no radicular signs. Dr. Poetz diagnosed plaintiff
with right lateral epicondylitis and cubital tunnel syndrome, status post right anterior
ulnar nerve transposition and epicondylectomy; right shoulder impingement syndrome
with symptomatic arthrosis of the acromioclavicular joint, status post acromioplasty
and excision of the clavicle; left shoulder impingement syndrome; cervical spondylosis
and bulging disc at C3-4 through C6-7, most pronounced at C5-6; right knee
patellofemoral pain and degenerative joint disease; chronic low back pain; right carpal
tunnel syndrome; and major depression. He recommended that plaintiff avoid heavy
lifting, strenuous activity, prolonged sitting, standing, walking, stooping, bending,
squatting, twisting and climbing. She should also avoid excessive and repetitive use
of her upper extremities and avoid using equipment that creates torque, vibration or
impact to the upper extremities. She should avoid stressful situations. Dr. Poetz
opined that plaintiff was “unable to maintain gainful employment due to her multiple
health and orthopedic conditions.” In his a medical source statement, he opined that
plaintiff had the ability to carry less than 10 pounds; stand or walk for up to 2 hours
in an 8 hour day; and sit for up to 6 hours. She had limited capacity to push or pull
using her arms and was restricted to occasional reaching. (Tr. 643-45).
On June 7, 2010, Dr. Bhatia noted that plaintiff’s depressive symptoms had
improved but were not completely resolved. (Tr. 654).
III. The ALJ’s Decision
In the decision issued on June 23, 2010, the ALJ made the following findings:
Plaintiff meets the insured status requirements through December 31,
Plaintiff has not engaged in substantial gainful activity since December
23, 2007, the alleged onset date.
Plaintiff has the following severe impairments: mild to moderate
depression, obesity, degenerative changes of the right knee,
degenerative disc disease of the neck, and residuals of right shoulder and
Plaintiff does not have an impairment or combination of impairments that
meets or substantially equals one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1.
Plaintiff has the residual functional capacity to perform light work, except
that she can lift and/or carry 20 pounds occasionally and 10 pounds
frequently; she can sit, stand or walk for a total of 6 hours in an 8 hour
day; she can occasionally climb ramps or stairs; she should only
occasionally balance, stop, kneel, crouch, or crawl; she should only
occasionally perform reaching overhead on the right; she should avoid
concentrated exposure to vibrations and hazards. In addition, she can
understand, remember, and carry out at least simple instructions and
non-detailed tasks; she has adequate judgment to make simple workrelated decisions; she can respond appropriately to supervisors and conworkers; and she can adapt to routine or simple work changes.
Plaintiff is unable to perform any past relevant work.
Plaintiff was closely approaching advanced age on the alleged date of
Plaintiff has limited education and can communicate in English.
Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding of “not disabled” whether or not plaintiff has
transferable job skills.
Considering plaintiff’s age, education, work experience and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that plaintiff can perform.
Plaintiff has not been under a disability, as defined in the Social Security
Act, from December 23, 2007, through the date of the decision.
IV. Legal Standards
The district court must affirm the Commissioner’s decision “if the decision is not
based on legal error and if there is substantial evidence in the record as a whole to
support the conclusion that the claimant was not disabled.” Long v. Chater, 108 F.3d
185, 187 (8th Cir. 1997). “Substantial evidence is less than a preponderance, but
enough so that a reasonable mind might find it adequate to support the conclusion.”
Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002) (quoting Johnson v. Apfel, 240
F.3d 1145, 1147 (8th Cir. 2001)). If, after reviewing the record, the court finds it
possible to draw two inconsistent positions from the evidence and one of those
positions represents the Commissioner’s findings, the court must affirm the decision
of the Commissioner.
Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011)
(quotations and citation omitted).
To be entitled to disability benefits, a claimant must prove she is unable to
perform any substantial gainful activity due to a medically determinable physical or
mental impairment that would either result in death or which has lasted or could be
expected to last for at least twelve continuous months. 42 U.S.C. § 423(a)(1)(D),
(d)(1)(A); Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009). The Commissioner
has established a five-step process for determining whether a person is disabled. See
20 C.F.R. § 404.1520; Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009). “Each step
in the disability determination entails a separate analysis and legal standard.” Lacroix
v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006).
Steps one through three require the claimant to prove (1) she is not currently
engaged in substantial gainful activity, (2) she suffers from a severe impairment, and
(3) her disability meets or equals a listed impairment. Pate-Fires, 564 F.3d at 942.
If the claimant does not suffer from a listed impairment or its equivalent, the
Commissioner’s analysis proceeds to steps four and five. Id.
“Prior to step four, the ALJ must assess the claimant’s [RFC], which is the most
a claimant can do despite her limitations.” Moore, 572 F.3d at 523 (citing 20 C.F.R.
§ 404.1545(a)(1)). “RFC is an administrative assessment of the extent to which an
individual’s medically determinable impairment(s), including any related symptoms,
such as pain, may cause physical or mental limitations or restrictions that may affect
his or her capacity to do work-related physical and mental activities.” Social Security
Ruling (SSR) 96-8p, 1996 WL 374184, *2. “[A] claimant’s RFC [is] based on all
relevant evidence, including the medical records, observations by treating physicians
and others, and an individual’s own description of his limitations.” Moore, 572 F.3d at
523 (quotation and citation omitted).
In determining a claimant’s RFC, the ALJ must evaluate the claimant’s credibility.
Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Pearsall v. Massanari, 274 F.3d
1211, 1217 (8th Cir. 2002). This evaluation requires that the ALJ consider “(1) the
claimant’s daily activities; (2) the duration, intensity, and frequency of the pain; (3)
the precipitating and aggravating factors; (4) the dosage, effectiveness, and side
effects of medication; (5) any functional restrictions; (6) the claimant’s work history;
and (7) the absence of objective medical evidence to support the claimant’s
complaints.” Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011) (quotation and
citation omitted). “Although ‘an ALJ may not discount a claimant’s allegations of
disabling pain solely because the objective medical evidence does not fully support
them,’ the ALJ may find that these allegations are not credible ‘if there are
inconsistencies in the evidence as a whole.’” Id. (quoting Goff v. Barnhart, 421 F.3d
785, 792 (8th Cir. 2005)). After considering the seven factors, the ALJ must make
express credibility determinations and set forth the inconsistencies in the record which
caused the ALJ to reject the claimant’s complaints. Singh v. Apfel, 222 F.3d 448, 452
(8th Cir. 2000); Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998).
At step four, the ALJ determines whether claimant can return to her past
relevant work, “review[ing] [the claimant’s] [RFC] and the physical and mental
demands of the work [claimant has] done in the past.” 20 C.F.R. § 404.1520(e). The
burden at step four remains with the claimant to prove her RFC and establish that she
cannot return to her past relevant work. Moore, 572 F.3d at 523; accord Dukes v.
Barnhart, 436 F.3d 923, 928 (8th Cir. 2006); Vandenboom v. Barnhart, 421 F.3d 745,
750 (8th Cir. 2005).
If the ALJ holds at step four of the process that a claimant cannot return to past
relevant work, the burden shifts at step five to the Commissioner to establish that the
claimant maintains the RFC to perform a significant number of jobs within the national
economy. Banks v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001). See also 20 C.F.R.
If the claimant is prevented by her impairment from doing any other work, the
ALJ will find the claimant to be disabled.
Plaintiff argues that the ALJ made errors in determining her residual functional
capacity (RFC); that the ALJ failed to clarify inconsistencies between the vocational
expert’s testimony and the Dictionary of Occupational Titles; and that the ALJ
improperly discounted the opinion of her treating psychiatrist.
A. The RFC Determination
A claimant’s RFC is “the most a claimant can still do despite his or her physical
or mental limitations.” Martise v. Astrue, 641 F.3d 909, 923 (8th Cir. 2011) (internal
quotations, alteration and citations omitted). “The ALJ bears the primary responsibility
for determining a claimant’s RFC and because RFC is a medical question, some medical
evidence must support the determination of the claimant’s RFC.”
omitted). “However, the burden of persuasion to prove disability and demonstrate RFC
remains on the claimant.” Id. Even though the RFC assessment draws from medical
sources for support, it is ultimately an administrative determination reserved to the
Commissioner. Cox v. Astrue, 495 F.3d 614, 619 (8th Cir. 2007) (citing 20 C.F.R. §§
416.927(e)(2), 416.946 (2006)).
As part of his RFC analysis, the ALJ addressed plaintiff’s statements regarding
the intensity, persistence and limiting effects of her symptoms and concluded that they
were not entirely credible. (Tr. 27). He noted, for example, that plaintiff’s daily
activities were not consistent with the degree of impairment she alleged. She lived
alone and did not report receiving help with maintaining her residence. She was able
to drive, shop, go to the casino and church, and manage her finances. The ALJ noted
that these daily activities are “fairly limited”; however, it was difficult to attribute the
degree of limitation to plaintiff’s medical condition.
In further support of the ALJ’s credibility analysis, the defendant notes that
plaintiff stopped working when the assembly plant shut down for the holidays; she
thereafter accepted a $70,000 buyout and did not return to work.
See Goff v.
Barnhart, 421 F.3d 785, 793 (8th Cir. 2005) (“Courts have found it relevant to
credibility when a claimant leaves work for reasons other than her medical condition.”)
In 2008, plaintiff received unemployment compensation and, thus, had to report that
she was actively seeking employment; she also told a physician that she was planning
to open a home-based day-care center. See Dunahoo v. Apfel, 241 F.3d 1033, 1039
(8th Cir. 2001) (seeking work while applying for disability is inconsistent with
allegations of disabling pain).
In addition, plaintiff’s allegations of disabling pain were not fully supported by
objective medical evidence. Thus, plaintiff alleged that she was seriously limited in her
ability to stand or walk, but her gait and station were routinely noted to be normal.
(Tr. 28, 311, 323, 426, 524, 638). Neurological examinations did not indicate the
presence of serious impairment. (Tr. 426). X-rays of her right shoulder and elbow
were negative while an x-ray of her knee revealed mild to moderate osteoarthritis. An
MRI of her spine in 2005 showed slight cervical spondylosis, with slightly bulging disc
without disc extrusion. (Tr. 482). Finally, there were significant gaps in plaintiff’s
treatment for depression, casting doubt on her allegations of disabling symptoms as
a result of the condition.
Ability to Lift 20 Pounds
The ALJ determined that plaintiff is able to lift 20 pounds occasionally while Dr.
McCall found that she was limited to lifting 15 pounds occasionally. Plaintiff essentially
asserts that the ALJ should have adopted Dr. McCall’s 15-pound restriction, which
would limit her to performing sedentary, rather than light, work. See 20 C.F.R. §
404.1567 (sedentary work involves lifting no more than 10 pounds; light work involves
lifting no more than 20 pounds). Plaintiff argues that a finding she was capable of no
more than sedentary work would result in a finding of disability under the MedicalVocational Guideline Rule 201.09. Plaintiff further argues that no physician opined that
she was capable of lifting 20 pounds and that the ALJ therefore improperly drew his
own inferences from the medical reports.
Plaintiff’s argument fails on a factual error -- in August 2007, Dr. Shawn Berkin
determined that plaintiff was able to lift up to 35 pounds occasionally and 25 pounds
Thus, the ALJ’s determination that plaintiff retains the RFC to lift 20
pounds occasionally is supported by evidence in the record and her argument
regarding the Medical-Vocational Guidelines is moot.
Plaintiff also argues that the combination of obesity and osteoarthritis of the
right knee prevent her from standing or walking for 6 hours out of 8. The regulations
direct that, where a claimant has multiple impairments, the combined effect of those
impairments will be considered. 20 C.F.R. § 404.1523. The ALJ’s decision reflects that
he properly considered the effect of her impairments in combination and found that
plaintiff’s obesity, alone or in combination with her depression and musculoskeletal
impairments, significantly limited her ability to do basic work activities. (Tr. 23). He
nonetheless concluded that she was capable of light work.
Medical evidence in the record supports this determination. With respect to her
knee, x-rays in December 2007 indicated that plaintiff had osteoarthritic changes of
the right knee. (Tr. 333). In February 2008, Dr. Sedgwick found no permanent
disability with respect to that knee. (Tr. 346-49). In July 2009, Dr. Feldner found that
plaintiff had coarse crepitus and moderate tenderness on palpation. However, the
knee was stable, without laxity or effusion. (Tr. 537-38). He made recommendations
regarding proper care, including ice packs, exercises, and weight loss, but did not
impose any restrictions on use of her knee. In March 2010, Dr. Poetz opined that
plaintiff was limited to standing or walking 2 hours in an 8 hour day. The ALJ gave Dr.
Poetz’s opinion “lesser weight” because he did not have a treatment relationship with
plaintiff but completed his examination at her attorney’s request to support her claim
for benefits. Furthermore, the ALJ noted, Dr. Poetz’s opinion was inconsistent with
other evidence in the record, notably the opinion of Dr. Berkin. See Tr. 29 (citing Ex.
3F, Dr. Berkin’s report). With respect to plaintiff’s depression, as discussed below, the
ALJ’s determination that this impairment did not preclude all work is also supported by
substantial evidence in the record as a whole.
The Court concludes that the ALJ’s RFC determination is supported by
substantial evidence on the record as a whole.
B. Conflict Between Expert’s Testimony and the DOT
Plaintiff asserts that the ALJ failed to resolve a conflict between the DOT and the
testimony of Mr. Mr.
Brodzinsky, the vocational expert, regarding the proper
exertional level of the jobs of small products assembler and ticket seller.
As detailed above, the ALJ asked the vocational expert whether there were jobs
that could be performed by an individual of plaintiff’s education, training and work
experience, with the ability to lift and carry 20 pounds occasionally and 10 pounds
frequently; and to stand, walk and sit for 6 hours out of 8. Mr. Brodzinsky identified
small parts assembler, small products assembler, and ticket seller as qualifying jobs
available in the national economy. Plaintiff’s counsel asked the expert to assume that
the individual was limited to lifting 15 pounds occasionally and 10 pounds frequently,
and thus was capable of only sedentary work. The expert opined that these limitations
would not preclude the individual from performing work as a small parts assembler or
ticket seller, even though these jobs are classified as light work by the Dictionary of
Occupational Titles (DOT), because many assembler and ticket seller jobs were actually
performed at the sedentary level. (Tr. 60-61).
To the extent that the vocational expert’s testimony conflicts with the DOT, the
disparity arose solely in response to hypothetical limitations exceeding those found by
the ALJ. Plaintiff’s second allegation of error is rejected.
C. Treating Psychiatrist’s Opinion
Plaintiff asserts that the ALJ erred in rejecting the opinion of her treating
psychiatrist, Dr. Bhatia, that she was incapable of working. The ALJ found that plaintiff
had some limitations arising from her psychiatric conditions, but he did not adopt Dr.
Bhatia’s opinion regarding the degree of limitation.
In deciding whether a claimant is disabled, the ALJ considers medical opinions
along with “the rest of the relevant evidence” in the record. 20 C.F.R. § 404.1527(b).
The opinion of a treating source may be given controlling weight where it is wellsupported by clinical and laboratory diagnostic techniques and is not inconsistent with
the record as a whole. 20 C.F.R. § 404.1527(c)(2). However, the ALJ “need not adopt
the opinion of a physician on the ultimate issue of a claimant’s ability to engage in
substantial gainful employment.” Qualls v. Apfel, 158 F.3d 425, 428 (8th Cir. 1998)
(internal quotations and citations omitted).
“[W]hile a treating physician’s opinion is generally entitled to ‘substantial
weight,’ such an opinion does not ‘automatically control’ because the hearing examiner
must evaluate the record as a whole. Wagner v. Astrue, 499 F.3d 842, 849 (8th Cir.
2007) (quoting Wilson v. Apfel, 172 F.3d 539, 542 (8th Cir. 1999)). “When one-time
consultants dispute a treating physician’s opinion, the ALJ must resolve the conflict
between those opinions.” Id. (quoting Cantrell v. Apfel, 231 F.3d 1104, 1107 (8th Cir.
2000). “As a general matter, the report of a consulting physician who examined a
claimant once does not constitute ‘substantial evidence’ upon the record as a whole,
especially when contradicted by the evaluation of the claimant's treating physician.”
Id. There are, however, two exceptions to this rule: an ALJ may discount or even
disregard the opinion of a treating physician (1) where other medical assessments are
supported by better or more thorough medical evidence, or (2) where a treating
physician renders inconsistent opinions that undermine the credibility of such opinions.
In this case, the ALJ noted that the limitations endorsed by Dr. Bhatia were
inconsistent with her treatment notes.
Dr. Bhatia completed the medical source
statement in March 2010, after seeing plaintiff twice. At the first visit on January 4,
2010, Dr. Bhatia assessed plaintiff’s GAF as 55. This score is indicative of moderate
symptoms and is inconsistent with the limitations in the medical source statement. At
the second visit on February 22, 2010, plaintiff reported that her antidepressant
medication was helpful and Dr. Bhatia assessed her depressive symptoms as “mild to
moderate.” This assessment is also inconsistent with the limitations in the medical
source statement. There is no GAF score recorded for that session, but it is logical to
assume that it was no lower than 55.
Dr. Bhatia’s assessment is also inconsistent with other evidence in the record.
On June 16, 2009, Dr. Mades determined that plaintiff’s memory was intact and that
she was able to maintain adequate attention and concentration with appropriate
persistence and pace. Plaintiff told Dr. Mades that she was able to get along with
others adequately. Plaintiff was spontaneous, coherent, logical and relevant, with a
generally pleasant and cooperative attitude. Dr. Mades assigned plaintiff a GAF score
65, indicating only mild symptoms.
Plaintiff cites the ALJ’s statement that Dr. Bhatia did not factor in the effects of
plaintiff’s alcohol use and marijuana abuse. (Tr. 29).
Plaintiff is correct that Dr.
Bhatia’s medical source statement indicates that alcohol and substance abuse did not
contribute to plaintiff’s impairments. However, plaintiff told Dr. Bhatia that she had
stopped using marijuana on a regular basis years earlier and that her alcohol intake
was limited to a wine cooler once a week or every 2 weeks. (Tr. 497). This level of
consumption is significantly lower that what plaintiff reported to Dr. Mades in 2009 and
during her hearing testimony. Thus, it is reasonable to conclude that Dr. Bhatia did
not know the full extent of plaintiff’s substance use and thus could not properly factor
its effects into her assessment.
The ALJ also stated that a physician may base an assessment of a patient’s
limitations on sympathy or a desire to avoid conflict. (Tr. 29). Standing on its own,
an ALJ’s speculation regarding a physician’s motivation would not be a sufficient basis
for discrediting a medical opinion.
Here, however, the ALJ properly cited
inconsistencies between Dr. Bhatia’s opinion and her own treatment notes and other
medical evidence. Thus, the ALJ did not err in declining to give Dr. Bhatia’s opinion
Plaintiff argues that the ALJ should have recontacted Dr. Bhatia. “An ALJ should
recontact a treating or consulting physician if a critical issue is undeveloped.” Martise
v. Astrue, 641 F.3d 909, 926 (8th Cir. 2011). However, a lack of medical evidence to
support a doctor’s opinion does not equate to underdevelopment of the record as to
a claimant’s disability. Id. at 927. The ALJ did not err in failing to recontact Dr. Bhatia.
For the reasons discussed above, the Court finds that the Commissioner’s
decision is supported by substantial evidence in the record as a whole.
IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed.
A separate Judgment in accordance with this Memorandum and Order will be
entered this same date.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 24th day of January, 2013.
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