Becker v. Social Security Administration
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Acting Commissioner of Social Security Carolyn W. Colvin is substituted for former Commissioner Michael J. Astrue as defendant in this cause. IT IS FURTHER ORDERED that, pursuant to sentence four of 42 U.S.C. § 405(g), the decision of the Commissioner is REVERSED, and this cause is REMANDED to the Commissioner for further proceedings consistent with this opinion. Because the current record does not conclusively demonstrate that plaintiff is entitled to benefits, it would be inappropriate for the Court to award plaintiff such benefits at this time. Judgment shall be entered accordingly. Signed by Magistrate Judge Frederick R. Buckles on 9/23/13. (KXS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,1
MEMORANDUM AND ORDER
This cause is before the Court on plaintiff’s appeal of
an adverse ruling of the Social Security Administration.
matters are pending before the undersigned United States Magistrate
Judge, with consent of the parties, pursuant to 28 U.S.C. § 636(c).
On November 25, 2009, plaintiff Lorrie J. Becker filed
applications for Disability Insurance Benefits pursuant to Title II
of the Social Security Act, 42 U.S.C. §§ 401, et seq., and for
Supplemental Security Income pursuant to Title XVI of the Act, 42
U.S.C. §§ 1381, et seq., in which she claimed she became disabled
plaintiff's claims for benefits.
(Tr. 75, 76, 79-83.)
On February 14, 2013, Carolyn W. Colvin became the Acting
Commissioner of Social Security.
Pursuant to Fed. R. Civ. P.
25(d), Carolyn W. Colvin is therefore automatically substituted for
former Commissioner Michael J. Astrue as defendant in this cause of
plaintiff’s request, hearings were held before an Administrative
Law Judge (ALJ) on May 31, 2011, and August 25, 2011, at which
plaintiff testified and was represented by counsel.
expert also testified at the hearings.
(Tr. 25-54, 55-68.)
September 13, 2011, the ALJ denied plaintiff's claims for benefits,
finding plaintiff able to perform her past relevant work and,
alternatively, that plaintiff could perform other work as it exists
in significant numbers in the national economy.
November 16, 2011, the Appeals Council denied plaintiff's request
42 U.S.C. § 405(g).
Plaintiff now seeks review of the Commissioner’s final
adverse determination arguing that the ALJ’s decision is not
Specifically, plaintiff claims that the ALJ rendered inconsistent
conclusions regarding plaintiff’s severe impairments and erred by
failing to properly consider plaintiff’s chronic pain syndrome and
allegations of headaches and knee pain as severe impairments.
Plaintiff also claims that the ALJ failed to fully and fairly
develop the record in order to obtain medical evidence to support
a determination as to plaintiff’s residual functional capacity
Plaintiff asks the Court to reverse the decision of the
Commissioner and render a fully favorable decision, or remand the
matter for further proceedings.
Because the ALJ’s decision in this cause is not supported
by substantial evidence on the record as a whole, the matter should
Testimonial Evidence Before the ALJ
Hearing Held May 31, 2011
At the hearing on May 31, 2011, plaintiff testified in
response to questions posed by the ALJ.
At the time of the hearing, plaintiff was fifty-one years
Plaintiff lived in a home with her fiancé and three
grandchildren whose ages were six, eight and ten. Plaintiff earned
a GED, participated in vocational rehabilitation, received training
in electronics at a technical school, and attended a cosmetology
Plaintiff’s Work History Report shows plaintiff to have
worked as a sorter at the United States Postal Service from 1994 to
From 1996 to 2005, plaintiff worked as a sales associate at
various retail stores.
From 2001 to 2006, plaintiff worked as a
merchandising and marketing clerk at various wholesalers.
August 2006 to October 2009, plaintiff worked as an office clerk at
Plaintiff testified that she cannot work on account of
her diagnosed conditions of fibromyalgia, Achilles tendinitis,
carpal tunnel, and bulging discs in her back and neck.
reported that she takes pain medication but has not undergone any
surgery for her back or carpal tunnel conditions.
Plaintiff testified that her fiancé worked full time,
resulting in her sometimes being home alone with the grandchildren.
Plaintiff testified that her son comes to help clean the house and
care for the children four or five days a week.
Plaintiff testified that that she was unaware as to why
her medical records indicated a diagnosis of substance abuse.
Plaintiff testified that she did not abuse her pain medication.
The ALJ determined to postpone the hearing so that
additional evidence could be obtained and presented regarding
allegations of substance abuse.
Testimony of Vocational Expert
Dr. Gerald Belchick, a vocational expert, testified at
the hearing in response to questions posed by the ALJ.
Dr. Belchick characterized plaintiff’s past work as a
merchandiser, office clerk, sales clerk, and sorter as light and
It was determined that no further
testimony would be obtained from Dr. Belchick until a supplemental
hearing at which additional testimony from plaintiff would be
Hearing Held on August 25, 2011
testified in response to questions posed by the ALJ and counsel.
Plaintiff testified that she is the foster parent to her
Plaintiff testified that caring for her grandchildren
causes her a lot of stress because such care is too exhausting for
her by herself.
Plaintiff testified that her son, fiancé and
mother help her care for the children, but that her fiancé cannot
be around the children when he is using drugs and her son cannot be
Plaintiff testified that she was previously hospitalized
due to depression.
headaches two or three times a week and that such headaches usually
last one to two days but have sometimes lasted as long as a week.
Plaintiff testified that medication taken for the condition helps
most of the time, reducing her debilitation to only one day.
Plaintiff testified that she is able to function when she has mild
Plaintiff testified that she has severe migraines two
or three times a month.
Plaintiff testified that she
episodes and stays in bed while the children are at school.
Plaintiff testified that if she cannot care for her grandchildren,
she calls her fiancé home from work or her mother who lives a few
causes her to have constant chronic pain all over her body.
Plaintiff testified that she takes medication for the condition
Plaintiff testified that she performs
physical therapy exercises.
Plaintiff testified that
she has disturbed sleep in that she awakens at least two or three
times a night.
Plaintiff testified that she must keep changing
positions while she sleeps.
As to her exertional abilities, plaintiff testified that
she can stand for half an hour and sit for three or fours hours as
long as she can change positions.
walk for about twenty minutes.
Plaintiff testified that she can
Plaintiff testified that she does
not engage in any lifting but could probably lift about fifteen
As to her daily activities, plaintiff testified that she
wakes up at 4:30 or 5:00 a.m. to take her pain medication, and then
goes back to sleep until 6:30 a.m.
Plaintiff testified that she
then makes coffee, wakes the children and gives them cereal for
testified that she then comes home and rests for about an hour.
(Tr. 33-34, 36.)
Plaintiff testified that she cares for her pets,
consisting of two dogs and five cats.
does laundry and some cooking.
Plaintiff testified that she
Plaintiff testified that she
attends church and some of her grandchildren’s school activities.
Plaintiff testified that her hobbies include gardening.
testified that she drives.
Testimony of Vocational Expert
Dr. Belchick testified in response to questions posed by
the ALJ and counsel.
Dr. Belchick characterized plaintiff’s past work as a
merchandiser, office clerk and sales clerk as light and semiskilled; as a sorter as unskilled, medium as actually performed but
unskilled; and as a housekeeper as light and unskilled.
The ALJ then asked Dr. Belchick to assume an individual
who was restricted to light work at the unskilled level to SVP 3;
that such a person could not work in a setting that includes
constant regular contact with the general public; and that such a
person should not perform work that includes more than infrequent
handling of customer complaints.
Dr. Belchick testified that such
a person could perform plaintiff’s past work as a merchandiser and
as a house cleaner.
Dr. Belchick testified that such a person
approximately 96,000 nationally; assembler, of which 2,200 such
packager, of which 2,300 such jobs exist locally and approximately
In response to questions posed by counsel, Dr. Belchick
testified that unexcused absences from work two or three days a
month is not an acceptable work practice and that employers would
not hire a person with such absences.
On October 8, 2003, plaintiff was treated at Florissant
Lorazepam2 was prescribed.
Oaks for worsening anxiety.
In August and October 2005, plaintiff visited Dr. Mark A.
Faron at Florissant Oaks with complaints of anxiety.
Lorazepam were prescribed.
complaints of neck pain after having sustained a fall.
was prescribed Cyclobenzaprine,4 Propoxyphene5 and ibuprofen.
In December 2006, plaintiff was referred for physical
therapy for neck pain and cervical spine dysfunction.
Lorazepam (Ativan) is used to relieve anxiety. Medline Plus
(last revised Oct. 1, 2010).
Zoloft is used to treat depression, panic attacks, and social
Medline Plus (last revised Apr. 13, 2012)
Cyclobenzaprine (Flexeril) is a muscle relaxant used to relax
muscles and relieve pain and discomfort caused by strains, sprains
and other muscle injuries.
Medline Plus (last revised Oct. 1,
2 0 1 0 ) < h t t p : / / w w w . n l m . nih.gov/me d l i n e p l u s / d r u g i n f o / m e d s /
Propoxyphene is used to relieve mild to moderate pain.
Plaintiff visited Dr. Faron on March 6, 2007, for follow
up on anxiety.
Plaintiff reported increased stress on account of
Plaintiff was prescribed Lorazepam.
Plaintiff visited Dr. Faron on
June 25, 2007, with
complaints of pain in her back, neck and shoulder after having been
involved in a motor vehicle incident. Plaintiff was diagnosed with
muscle strain and was prescribed Cyclobenzaprine and ibuprofen.
Plaintiff returned to Dr. Faron on August 30, 2007, with
complaints of back pain radiating down the right leg.
reported that she engages in a lot of lifting.
raising was positive on the right, and moderately reduced flexion
of the spine and pelvis was noted.
Plaintiff was diagnosed with
sciatica and was instructed to rest and apply heat to the affected
Vicodin6 was prescribed.
Plaintiff continued to complain of sciatic pain to Dr.
Faron on September 11, 2007.
Plaintiff also reported that her
shoulders and left arm go numb.
Plaintiff was prescribed Vicodin
An MRI of the lumbar spine taken September 21, 2007,
showed mild lumbar spondylosis.
Vicodin (hydrocodone) (also marketed under the brand name
Norco) is a narcotic used to relieve moderate to severe pain.
Medline Plus (last revised May 15, 2013).
Counseling Center at St. John’s Mercy Health Care on January 7,
2008, upon referral by Dr. Faron.
Plaintiff reported to Dr. Arturo
C. Taca, Jr., that she had had panic disorder for about twenty
and sometimes talking too fast.
reported having a lot of stress due to significant family issues.
Plaintiff’s current medications were noted to include Ativan,
plaintiff’s mood to
depressed and her affect constricted.
plaintiff with history of major depressive disorder, rule out
bipolar affective disorder.
A Global Assessment of Functioning
Score (GAF) score of 40 was assigned.8
Dr. Taca prescribed
Klonopin9 for plaintiff and referred her for psychotherapy.
Fioricet is used to relieve tension headaches. Medline Plus
(last revised Aug. 15, 2013).
occupational functioning on a hypothetical continuum of mental
Diagnostic and Statistical Manual of Mental
Disorders, Text Revision 34 (4th ed. 2000). A GAF score of 31-40
indicates some impairment in reality testing or communication
(e.g., speech is at times illogical, obscure or irrelevant) or
major impairment in several areas, such as work or school, family
relations, judgment, thinking, or mood (e.g., depressed man avoids
friends, neglects family and is unable to work; child frequently
beats up younger children, is defiant at home and is failing at
Klonopin (Clonazepam) is used to relieve panic attacks.
Medline Plus (last revised July 1, 2010).
- 10 -
Plaintiff returned to Dr. Taca on January 21, 2008, and
reported a significantly improved mood upon taking Depakote.10
diagnosed with history of major depressive disorder, rule out
bipolar disorder; and a GAF score of 40 was assigned.
was instructed to continue with Klonopin and Depakote and was
referred for psychotherapy.
Plaintiff returned to Dr. Taca on February 11, 2008, and
reported that she was not doing well because of the recent loss of
Plaintiff also reported a recent onset of migraine
Upon examination, Dr. Taca diagnosed plaintiff with
history of major depressive disorder, rule out bipolar affective
Plaintiff was assigned a GAF score of 40.
instructed to continue with Klonopin and Depakote and was referred
Plaintiff was admitted to the emergency room at St.
John’s Mercy Medical Center on February 22, 2008, with complaints
of having a headache for three weeks.
migraine headaches was noted.
Plaintiff’s history of
Plaintiff reported being under
increased stress with the recent loss of her brother.
the head was normal.
A CT scan of
Plaintiff was given Toradol,11 Reglan12 and
Depakote is used to treat mania in persons with bipolar
disorder, and also to prevent migraine headaches.
(last revised May 15, 2013).
Toradol is used to relieve moderately severe pain. Medline
Reglan is used to relieve heartburn, nausea and vomiting.
Medline Plus (last reviewed Sept. 1, 2010).
Morphine (MS Contin) is used to relieve moderate to severe
Percocet (oxycodone) is a narcotic used to relieve moderate
to severe pain. Medline Plus (last revised Apr. 15, 2013).
Topamax is used to prevent migraine headaches.
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she had been prescribed Imipramine.16
Plaintiff was requesting
refills of Vicodin and Compazine17 inasmuch as she was going on
vacation and needed the medication for her headaches.
examination, including examination of the extremities, was normal.
Plaintiff was diagnosed with migraine headaches with associated
nausea and was prescribed hydrocodone and Compazine.
Plaintiff returned to Dr. Faron on June 2, 2008, and
examination, including examination of the extremities, was normal.
disorder, and recurrent depression. Laboratory tests were ordered,
and Duloxetine18 was prescribed.
On June 23, 2008, plaintiff reported to Dr. Faron that
she did not tolerate Cymbalta.
It was noted that plaintiff had not
migraine, sciatica, headache, and generalized anxiety disorder.
Imipramine (Tofranil) is used to treat depression. Medline
Compazine (Prochlorperazine) is used to control severe nausea
and vomiting, as well as to treat anxiety on a short-term basis.
Duloxetine (Cymbalta) is used to treat depression and
generalized anxiety disorder; pain caused by fibromyalgia; and
ongoing bone or muscle pain such as lower back pain or
osteoarthritis. Medline Plus (last revised Feb. 15, 2013).
- 13 -
Plaintiff denied any current chest pain.
Physical examination was
Plaintiff was also noted to have normal mood and
Plaintiff was referred to psychiatry.
Plaintiff visited psychiatrist Dr. Steven Harvey on July
Plaintiff reported that she has had mood problems her entire life.
Plaintiff reported that she liked her job. Plaintiff reported that
she travels to Arizona to visit her boyfriend’s mother, and that
she likes to visit places.
Dr. Harvey noted plaintiff to be
pleasant and cooperative, with normal speech and logical flow of
Plaintiff denied hallucinations or delusions and had no
suicidal or assaultive ideations. Plaintiff was fully oriented and
had intact long term and short term memory.
be anxious, mostly euthymic and stable.
judgment were noted to be fair.
Plaintiff was noted to
Plaintiff’s insight and
Dr. Harvey diagnosed plaintiff
with bipolar disorder-mixed, and a GAF score of 65 was assigned.19
Klonopin, Imipramine and Cyclobenzaprine.
Dr. Harvey instructed
plaintiff to continue with her medications, and Lamictal20 was
A GAF score of 61 to 70 indicates some mild symptoms (e.g.,
depressed mood and mild insomnia) or some difficulty in social,
occupational or school functioning (e.g., occasional truancy, or
theft within the household), but generally functioning pretty well,
has some meaningful interpersonal relationships. Diagnostic and
Statistical Manual of Mental Disorders, Text Revision 34 (4th ed.
Lamictal is used to increase the time between episodes of
depression and mania in persons with bipolar disorder. Medline
- 15 -
Plaintiff returned to Dr. Harvey on September 2, 2008,
and reported that she was having problems and had been crying for
It was noted that plaintiff’s daughter continued to use
drugs and that plaintiff’s son had just been laid off.
status examination was unremarkable.
Plaintiff was instructed to
On September 8, 2008, plaintiff reported to Dr. Faron
that she had been experiencing bilateral ankle and foot pain for
six weeks, and intermittent left forearm pain for years.
Physical examination was unremarkable.
referred to orthopedic surgery for evaluation of possible osteoarthritis.
Plaintiff visited Dr. Craig Aubuchon on September 25,
2008, with complaints of left knee pain and bilateral pain in the
ankles and across the midfoot. Plaintiff reported that her kneecap
gives out occasionally and that she sits most of the time at work
because of knee swelling and pain in her foot when she walks.
Imipramine, aspirin, Cyclobenzaprine, Lamictal, and Albuterol. Dr.
Aubuchon noted plaintiff’s medical history to include emphysema,
degenerative arthritis, and headaches. Physical examination showed
plaintiff to appear very healthy and to walk with a normal heel-totoe gait.
Slight tenderness and effusion were noted along the
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lateral joint line of the left knee, with grinding noted upon range
Tenderness was also noted over the patellar tendon.
Normal strength was noted along the hamstrings and quad.
swelling was noted about plaintiff’s ankles or feet, but tenderness
was noted along the tarsometatarsal joints.
about the heel cords as well.
Tenderness was noted
Sensation was intact.
X-rays of the
knee were unremarkable.
X-rays of the feet showed degenerative
changes of the midfeet.
Dr. Aubuchon diagnosed plaintiff with
Achilles tendinitis and chondromalacia of the left foot causing
Plaintiff was instructed to participate in physical
therapy and to obtain orthotics to control her midfoot and lessen
Plaintiff was instructed to return in three to four
Plaintiff returned to Dr. Harvey on September 30, 2008,
who could not determine whether plaintiff was better.
reported that it takes her three hours to leave the house because
of low energy and low motivation.
Plaintiff reported that she had
more anxiety and that her headaches were worsening.
reported being tired of the pain.
Dr. Harvey continued in his
diagnosis of plaintiff and instructed her to continue on her
current medication regimen.
On October 16, 2008, plaintiff went to the emergency room
at St. John’s Mercy Medical Center with complaints of migraine
headaches with associated vomiting and chest pain. Plaintiff rated
her pain to be at a level ten on a scale of one to ten.
- 17 -
was given Compazine, Benadryl and Dilaudid.21
plaintiff was prescribed Vicodin. Plaintiff was released to return
to work on October 19, 2008, with no restrictions.
Plaintiff returned to Dr. Aubuchon on October 23, 2008,
and complained of pain in her left shoulder radiating down the
Plaintiff also complained of pain in the left greater
trochanter with discomfort and pain upon sitting and upon lying on
her left side.
Plaintiff reported having such pain for several
Physical examination showed limited range of motion about
the left hip with tenderness over the greater trochanter.
swelling was noted, and plaintiff had normal strength about the hip
Plaintiff had full range of motion about the shoulder
with no tenderness.
Positive impingement test was noted, however,
as well as weakness to supraspinatus testing.
range of motion about her elbow.
Plaintiff had full
X-rays of the left hip, arm and
forearm were normal. Dr. Aubuchon diagnosed plaintiff with rotator
cuff tendinitis over the left shoulder and bursitis of the left hip
over the greater trochanter.
Steroid injections of Depo-Medrol
were administered and plaintiff was instructed to return in one
It was noted that plaintiff was participating in physical
therapy for her lower extremity.
On October 31, 2008, plaintiff reported to Dr. Harvey
that she was good and that things had improved over the previous
Dilaudid is a narcotic used to relieve moderate to severe
Medline Plus (last revised Aug. 15, 2013).
- 18 -
couple of weeks.
Mental status examination was normal. Dr. Harvey
continued in his diagnosis of bipolar disorder-mixed and assigned
a new GAF score of 80.22
Plaintiff was instructed to continue with
her current medications and to return in four weeks for follow up.
Plaintiff returned to Dr. Aubuchon on November 20, 2008,
and complained of continued pain in her left hip and of pain in her
Straight leg raising was positive bilaterally for radiating
Dr. Aubuchon noted limited range of motion with flexion and
Plaintiff had diminished reflexes in the knees and
Sensation was intact.
noted to be nontender.
Dr. Aubuchon diagnosed plaintiff with back
pain suggestive of sciatica.
Range of motion about the hips was
Physical therapy for the condition
On December 8, 2008, plaintiff visited Dr. Faron and
reported that she was participating in physical therapy for her
back. Physical examination was unremarkable. Plaintiff’s migraine
headaches were noted to be controlled with medication, and Vicodin
Plaintiff’s asthma condition was also noted to be
Cyclobenzaprine for sciatica and was instructed to continue with
A GAF score of 71-80 indicates transient symptoms and
expectable reactions to psychosocial stressors (e.g., difficulty
concentrating after family argument) or no more than slight
impairment in social, occupational or school functioning (e.g.,
temporarily falling behind in schoolwork).
Statistical Manual of Mental Disorders, Text Revision 34 (4th ed.
- 19 -
On December 18, 2008, plaintiff reported to Dr. Aubuchon
that she continued to have back pain and had right knee pain.
Aubuchon noted plaintiff’s left shoulder pain to have improved
after the injection. Physical examination of the right knee showed
only slight tenderness over the medial joint line and grinding with
patellofemoral range of motion.
Dr. Aubuchon noted x-rays to show
a little medial joint space narrowing of the right knee.
Aubuchon opined that plaintiff may have a degenerative meniscal
tear suggestive of chondromalacia.
Dr. Aubuchon ordered an MRI of
plaintiff’s knee and instructed plaintiff to continue with physical
therapy for her back and shoulder.
Vicodin was prescribed.
On January 8, 2009, Dr. Aubuchon noted the recent MRI to
show a bucket handle tear of the medial meniscus.
examination showed significant tenderness at the medial joint line
with a reproduction of symptoms with McMurray’s test.
had normal strength of the quads and hamstrings and walked with a
Surgical repair by medial arthroscopy was planned.
Plaintiff visited Dr. Harvey on January 20, 2009, and
reported that she was doing okay.
run out of her medications.
It was noted that plaintiff had
Mental status examination was normal.
Dr. Harvey continued in his diagnosis of bipolar disorder-mixed and
continued his GAF score of 80.
Plaintiff was instructed to restart
- 20 -
her medications and to continue with Lamictal.
On March 5, 2009, Dr. Aubuchon noted plaintiff to be ten
Examination showed plaintiff able to obtain almost
full extension of the right knee.
The knee was noted to feel
Physical therapy was ordered.
An x-ray of the right knee
taken that same date showed good cartilage height at both the
medial and lateral joint lines.
(Tr. 329, 330.)
On March 26,
2009, plaintiff reported continued improvement with her right knee
but requested additional pain medication.
patellofemoral range of motion.
Slight effusion was noted to be
Plaintiff also reported being under a marked amount of
stress due to family issues.
Mild tenderness was
A refill of pain medication was given
On April 15, 2009, plaintiff reported to
Dr. Aubuchon’s office that Darvocet did not control her pain.
Norco was prescribed.
On April 21, 2009, plaintiff reported to Dr. Aubuchon
Plaintiff complained of knee pain, aggravated by stepping in a
Examination showed slight effusion and diffuse tenderness
Darvocet is used to relieve mild to moderate pain. Medline
- 21 -
about the right knee.
A steroid injection of Depo-Medrol was
administered to the knee. Plaintiff requested pain medication, and
her prescription for Vicodin was renewed.
On April 21, 2009, plaintiff visited Dr. Daniel Sohn at
Mid County Orthopaedic Surgery and Sports Medicine upon referral
from Dr. Aubuchon.
Plaintiff complained of severe back, neck,
shoulder, and arm pain.
Physical examination showed plaintiff’s
stance, gait and position changes to be normal.
Tenderness to palpation was noted along the left L-4 spinous
process and in the left gluteus muscle.
Lower extremity strength
was intact, and straight leg raising was negative.
diagnosed plaintiff with low back pain related to facet irritation
and left gluteal myofascial pain.
Plaintiff was prescribed Soma24
and Mobic25 and was instructed to remain active with her usual
Plaintiff returned to Dr. Faron on April 23, 2009, with
plaintiff was seeing Dr. Sohn for pain management and Dr. Aubuchon
for orthopaedic issues.
No other complaints were noted. (Tr. 394-
Soma is a muscle relaxant used to relax muscles and relieve
pain and discomfort caused by strains, sprains and other muscle
Medline Plus (last reviewed Aug. 1, 2010).
Mobic is used to relieve pain, tenderness, swelling, and
stiffness caused by osteoarthritis and rheumatoid arthritis.
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plaintiff’s prescription for Vicodin.
(Tr. 323, 324.)
On June 1, 2009, plaintiff returned to Dr. Faron with
complaints relating to acute sinusitis and nausea.
complaints were reported.
conditions were controlled.
During follow up on June
Plaintiff was instructed to follow up
with psychiatry regarding generalized anxiety disorder.
Aubuchon noted plaintiff to be doing pretty well.
instructed to continue with her exercises and to return on an as
A bone density scan performed June 12, 2009, yielded
complaints of longstanding pain in her back, neck and shoulder.
Plaintiff reported having poor sleep because of her low back pain.
Plaintiff reported having taken Vicodin for her pain, which was
prescribed by Dr. Aubuchon for her knees, but that she no longer
Plaintiff reported that she currently takes Mobic and that taking
Soma did not really help her pain.
Examination of the back showed
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diffusely about the low back, shoulder girdle, neck, elbows, and
Plaintiff also reported upper extremity numbness
tingling in her hands.
Results of nerve conduction studies were
consistent with mild left carpal tunnel syndrome.
Dr. Sohn noted
plaintiff’s diffuse muscle pain to be consistent with fibromyalgia.
Flexeril was prescribed. Plaintiff was instructed to continue with
physical therapy for her neck, shoulder girdle and back; and a
referral was made for carpal tunnel syndrome.
On July 7, 2009, plaintiff visited Dr. David W. Strege
Plaintiff complained of intermittent pain and numbness
in the hands, wrists and forearms. Plaintiff reported that wearing
wrist splints did not help the condition.
Dr. Strege noted
plaintiff’s past medical history to include anxiety, depression,
bipolar disorder, and low back problems.
It was also noted that
plaintiff had recently been diagnosed with fibromyalgia.
physical examination, Dr. Strege determined that plaintiff had
symptoms consistent with mild left carpal tunnel syndrome but noted
that such symptoms were not overly impressive.
Dr. Strege also
instructed to return for follow up in four weeks.
Plaintiff returned to Dr. Harvey on July 7, 2009, who
noted plaintiff’s mood to be a lot more stable. Plaintiff reported
- 24 -
that she cries a lot because she is in so much pain.
examination was unremarkable. Plaintiff was instructed to continue
with her current medications and to return in three months for
Participation in psychotherapy was recommended.
On July 12, 2009, plaintiff went to the emergency room at
St. John’s with complaints of migraine headaches and of pain in her
back and neck. Plaintiff reported having taken her last Vicodin in
the morning and that her doctor had not yet provided a new
Plaintiff was given Toradol, Compazine, Reglan, and
Dilaudid and was discharged that same date. Vicodin was prescribed
Plaintiff returned to Dr. Faron on July 13, 2009, and
reported that she went to the emergency room the previous evening
due to migraine headaches.
over and was frustrated.
Plaintiff reported that she hurt all
Plaintiff also reported that she was
depressed and that she was instructed by her psychiatrist to
Plaintiff reported having radiating pain in
her hips, back and legs as well as pain in her ankles and heels.
Examination of the musculoskeletal system showed no
point tenderness or edema.
Plaintiff was noted to be seeing Dr.
Sohn for sciatica and Dr. Harvey for major depression. Plaintiff’s
symptoms of arthralgia were opined to be related to her depression,
and plaintiff was encouraged to follow up with Dr. Harvey.
- 25 -
On September 2, 2009, plaintiff visited Florissant Oaks
and reported having had moderate migraine headaches for three or
Plaintiff reported that hydrocodone was the only
medication that helped her condition.
Plaintiff reported being
unhappy with her pain management physician and that she was not
going to see him anymore.
Physical examination was unremarkable.
Plaintiff refused prescriptions for Medrol DosePack and Tramadol,
stating that the medications did not work.
Plaintiff was advised
rheumatology was considered as well as possible re-evaluation by a
Plaintiff was instructed to follow up in December.
On September 17, 2009, plaintiff reported to Dr. Harvey
that she was under a lot of stress.
Plaintiff reported that she
had been doing pretty well but that her daughter was leaving soon
to go to prison.
Dr. Harvey instructed plaintiff to increase her
dosage of Klonopin and to continue with her other medications as
Plaintiff was assigned a GAF score of 70 and was
instructed to return in six weeks for follow up.
psychotherapy was recommended.
Plaintiff visited Dr. Gary Gray from Dunn Physician
widespread pain syndrome.
Dr. Gray noted there to be no clear
- 26 -
Plaintiff currently complained of problems
with her hands and feet.
Dr. Gray noted plaintiff’s routine
doctor’s visits to yield normal examinations.
Plaintiff returned to Dr. Gray on October 9, 2009, with
complaints of back pain radiating to the side and hips, muscle
pain, and foot and ankle pain.
Plaintiff reported ibuprofen and
Darvocet not to help, but that hydrocodone helped.
prescribed hydrocodone for plaintiff, noting the medication to be
effective and to be prescribed in good faith to treat a chronic
On October 28, 2009, plaintiff was admitted to the
emergency room at St. John’s after having cut her finger on a
Plaintiff also complained of pain all the way up her arm
with passive motion.
It was questioned whether there was possible
Plaintiff’s current medications were noted to
include Percocet, Vicodin, Flexeril, Motrin, Klonopin, Lamictal,
and Tofranil. Physical examination showed plaintiff’s left hand to
laceration, but plaintiff was observed to exhibit normal two-point
discrimination, normal capillary refill, no deformity, no swelling,
Lyrica is used to relieve neuropathic pain and fibromyalgia.
Medline Plus (last revised Sept. 1, 2009).
- 27 -
and normal sensation.
Plaintiff requested that she be given
Percocet, stating that Vicodin did not help her pain.
finger was stitched and plaintiff was discharged that same date.
On October 30, 2009, plaintiff continued to complain of
scheduled surgery for the following week.
Plaintiff visited Dr. Gray on November 6, 2009, with
complaints of back pain and ankle/foot pain.
that hydrocodone was only minimally helpful but that oxycodone
taken post-surgery seemed to provide some relief.
It was noted
that plaintiff’s asthma condition appeared stable.
instructed to follow up with Dr. Sohn to explore other long-term
medication options regarding her chronic pain. Dr. Gray noted that
all options he was comfortable with prescribing had been exhausted.
On November 13, 2009, Dr. Smock noted plaintiff’s left
finger condition to be consistent with rupture of both flexor
Additional surgery was scheduled.
On November 20, 2009, Dr.
complain of increased pain.
little red and swollen.
Smock noted plaintiff to
Plaintiff’s finger was noted to be a
Plaintiff’s prescription for Percocet was
On November 23, 2009, plaintiff complained
to Dr. Smock of severe pain.
Mild swelling was noted.
was instructed to follow up with hand therapy.
- 28 -
November 24, 2009, Dr. Smock noted the swelling to have improved
and that plaintiff’s finger looked okay.
Noting plaintiff to take
about eight Percocet a day, plaintiff’s prescription for Percocet
Plaintiff returned to Dr. Smock on December 1, 2009, and
continued to complain of severe pain.
It was noted that plaintiff
had not yet undergone hand therapy as prescribed.
reported that she had severe shoulder and knee pain after having
sustained a fall.
Plaintiff’s prescription for Percocet was
Plaintiff visited Dr. Gray on December 2, 2009, and
complained of pain in her neck, wrist and back after having
Plaintiff reported that Dr. Sohn had nothing left to
offer her but more physical therapy for her chronic pain.
noted that there was no clear etiology for plaintiff’s chronic pain
Dr. Gary concluded:
I am not willing to provide more potent
narcotics as this is deferred to her pain
management doctor. She is planning to pursue
disability. I feel she meets criteria from a
psychiatric standpoint. I don’t think she is
employment. I cannot in good faith give more
potent pain treatment as there is NOTHING to
support an organic [c]ause of her chronic
pain. She certainly may have acute pain from
the fall warranting short term disability, but
she is on appropriate narcotic therapy from
her hand surgeon.
- 29 -
Plaintiff visited St. John’s Mercy Sports & Therapy on
December 8, 2009, for initial evaluation regarding hand therapy.
It was determined that plaintiff would participate in therapy three
times a week for four weeks.
Plaintiff returned to Dr. Harvey on December 10, 2009,
who noted plaintiff to have a lot of stressors, including her
daughter being in prison, her alcoholic son having recently been
involved in a motor vehicle accident, her recent tendon injury, and
her anticipated loss of insurance.
Dr. Harvey noted plaintiff to
be doing better with mood stabilizers but opined that plaintiff
needed therapy. Plaintiff was instructed to continue with her same
medication and to return in two months.
It was noted that a
therapist would be sought out once plaintiff’s insurance status was
Plaintiff visited Dr. Gray on December 24, 2009, who
noted plaintiff to be a chronic pain sufferer with complaints of
neck pain, low back pain, and generalized fibromyalgia-type pain.
It was noted that plaintiff had seen a number of specialists and
had tried a number of medications, all of which were unsuccessful
in relieving her pain.
Dr. Gray noted plaintiff to be desperate
and pleading for someone to help her.
Physical examination showed
tenderness to palpation along paraspinal muscles but was otherwise
Plaintiff was observed to be in mild distress.
Gray diagnosed plaintiff with cervicalgia, lumbar spondylosis and
- 30 -
migraine headaches and prescribed MS Contin, Percocet and Maxalt.27
Plaintiff visited Dr. Gray on February 4, 2010, for
follow up on pain management.
Dr. Gray noted plaintiff to have
chronic neck/back/arm/leg pain and fibromyalgia-type syndrome of
unclear etiology, but that plaintiff’s current medications have
been very effective and have provided plaintiff the best quality of
life that she has had in quite some time.
medications were noted to include MS Contin, Percocet, Maxalt,
Lamictal, Tofranil, Motrin, and Klonopin. Dr. Gray noted plaintiff
to be more calm, comfortable and pleasant than ever before.
Gray described plaintiff as a “new person,” having obtained clear
benefit from a more potent and reasonable pain management regimen.
Plaintiff was instructed to continue on her current medications and
to return in one month for follow up.
An x-ray of plaintiff’s chest taken February 4, 2010,
yielded normal results.
A pulmonary function test performed that
same date in response to plaintiff’s complaints of shortness of
breath yielded essentially normal results, with evidence of a
minimal obstructive ventilatory defect with a moderate diffusion
(Tr. 574, 575.)
On March 15, 2010, plaintiff visited Dunn Physician
Offices after having been involved in a motor vehicle accident
Maxalt is used to treat the symptoms of migraine headaches.
Medline Plus (last reviewed Sept. 1, 2010).
- 31 -
three days prior.
Plaintiff complained of hip and back pain.
was noted that plaintiff walked with a cane.
It was noted that
plaintiff had pre-existing pain issues with fibromyalgia and was
examination currently showed limited range of motion about the hip
due to pain.
Plaintiff was diagnosed with chronic pain disorder
with fibromyalgia, requiring high potency narcotics; and worsening
right hip and back pain due to a recent motor vehicle accident.
Plaintiff was instructed to temporarily increase her dosage of
Percocet due to her recent injury.
On April 27, 2010, plaintiff visited Dr. Harvey and
reported that her daughter had recently passed away due to acute
morphine intoxication. Plaintiff was noted to be very sad and very
Plaintiff reported that she was off of all of her
medications except for Klonopin.
Mental status examination was
Plaintiff was instructed to continue with Klonopin and to
restart Lamictal. Plaintiff was also instructed to restart therapy
A GAF score of 70 was assigned.
Plaintiff visited Dunn Physician Offices on April 6,
2010, for follow up of low back pain and hip pain related to the
motor vehicle accident.
Tenderness was noted about the lumbar
Percocet and Compazine were prescribed, and plaintiff was
referred to physical therapy.
Plaintiff visited Dunn Physician Offices on May 3, 2010,
and complained of arm tingling and numbness relating to the motor
- 32 -
and leg pain.
Plaintiff also complained of increased low back
It was noted that plaintiff was leaving for a trip
to Arizona to help her boyfriend “take care of things” after the
death of his mother.
Plaintiff requested an increase in her pain
Tenderness was noted along the neck to the shoulders
Plaintiff was also noted to have a limping gait.
MRI of the cervical spine was ordered, and a referral to physical
Plaintiff was instructed to continue with her current dose of MS
Contin and was advised to increase her Percocet if necessary during
On May 13, 2010, Stanley Hutson, Ph.D., a psychological
consultant with disability determinations, completed a Psychiatric
Review Technique Form (PRTF) in which he opined that plaintiff’s
bipolar disorder resulted in mild restrictions of plaintiff’s daily
functioning and in maintaining concentration, persistence or pace.
(Tr. 583-94.) In a Mental RFC Assessment completed that same date,
Dr. Hutson opined that plaintiff had no significant limitations in
the domain of Understanding and Memory. In the domain of Sustained
Concentration and Persistence, Dr. Hutson opined that plaintiff was
concentration for extended periods, in her ability to work in
coordination with or proximity to others without being distracted
by them, and in her ability to complete a normal workday and
- 33 -
workweek without psychologically-based interruptions, but otherwise
appropriately to criticism from supervisors, and in her ability to
get along with coworkers or peers without distracting them or
exhibiting behavioral extremes, but otherwise had no significant
Finally, in the domain of Adaptation, Dr. Hutson
opined that plaintiff was moderately limited in her ability to
respond appropriately to changes in the work setting, but otherwise
was not significantly limited. (Tr. 595-97.) Dr. Hutson concluded
She can remember work procedures and can follow
instructions to complete fairly complex activities. She could cope
with a low stress work setting that has few social demands.”
On June 7, 2010, plaintiff reported to Dr. Gray that she
Dr. Gray noted the pain medication to be effective.
Medrol Dosepack28 and Percocet were prescribed.
On July 19, 2010, plaintiff reported to Dr. Gray that she
had rib pain and limited range of motion about the left shoulder as
Medrol is used to relieve inflammation and to treat certain
forms of arthritis and asthma. Medline Plus (last reviewed Sept.
- 34 -
the result of a recent fall, and that her current pain medication
Plaintiff visited Dr. Gray on October 14, 2010, who noted
plaintiff to be living with her fiancé and three grandchildren. It
was noted that the children were struggling emotionally with the
recent death of their mother, were undergoing counseling, and
It was also noted that they were doing well in school.
Plaintiff reported her symptoms of depression and anxiety to have
worsened since she stopped taking Lamictal, but that she was
scheduled to see Dr. Kabir that day.
Plaintiff also reported the
chronic pain in her legs to continue and that she could stand for
about fifteen minutes.
It was noted that there had been some
improvement in the symptoms.
Examination was unremarkable.
fibromyalgia and prescribed MS Contin and Percocet.
Plaintiff visited Dunn Physician Offices on October 26,
2010, and complained of migraines, worsening aches in her joints
and muscles, fatigue, and bruising.
Plaintiff’s prescription for
Flexeril was refilled, and Prednisone was prescribed.
tests were ordered.
On November 22, 2010, plaintiff visited Multi-Specialty
Plaintiff reported being more angry during the previous eight
months, having lost her daughter to overdose. No learning disorder
- 35 -
Plaintiff was noted to be taking Lamictal and Klonopin.
noted that plaintiff had had a physical examination within the past
year and that everything was okay.
It was noted that plaintiff was
taking Percocet. As to her social history, plaintiff reported that
she takes care of kids, goes out, and had a best friend who died.
Mental status examination showed plaintiff to have a cooperative
attitude but to speak fast and angrily.
Plaintiff’s mood was noted
to be angry, frustrated and irritable, and her affect was broad.
Plaintiff’s thought processes, memory and judgment were noted to be
fair. Plaintiff’s concentration and insight were noted to be poor.
Plaintiff was considered to have average intellect.
diagnosed with bipolar disorder-depressed-moderate and was assigned
a GAF score of 60.29
It was recommended that plaintiff participate
in cognitive behavioral therapy.
plaintiff’s quality of life to have clearly improved with the
A GAF score of 51 to 60 indicates moderate symptoms (e.g.,
flat affect and circumstantial speech, occasional panic attacks) or
moderate difficulty in social, occupational or school functioning
(e.g., few friends, conflicts with peers or co-workers).
Diagnostic and Statistical Manual of Mental Disorders, Text
Revision 34 (4th ed. 2000).
- 36 -
generalized anxiety disorder, cervicalgia and fibromyalgia and was
instructed to continue on the current treatment plan.
Plaintiff returned to MMHS on November 30, 2010, for
It was noted that plaintiff’s mood, sleep, and thought
processes were fair.
Plaintiff reported having no motivation or
Plaintiff was instructed to return in two months.
Plaintiff visited Dr. Gray on February 23, 2011, who
noted plaintiff’s back pain to be a chronic, intermittent problem
but that effective narcotic pain medication provided good results
and improved plaintiff’s quality of life.
Dr. Gray also noted that
plaintiff tolerated the medication for her headache condition and
experienced no side effects.
Plaintiff’s anxiety was noted to be
stable without the use of Clonazepam.
Plaintiff visited Dr. Marketa Kasalova at Dunn Physician
Offices on March 28, 2011, with complaints of jaw pain after a
Plaintiff also reported having headaches.
cervicalgia, fibromyalgia, and dental pain — all for which she was
(Tr. 599-603, 767-68.)
Plaintiff visited Dr. Kasalova on June 6, 2011, with
complaints of worsening low back pain and neck pain.
reported the pain to radiate into her legs.
headaches or chest pain.
Physical examination was unremarkable.
- 37 -
Plaintiff had normal range of motion about the neck. Plaintiff was
spondylosis, leg pain, and dental pain.
Percocet and MS Contin
were prescribed, and plaintiff was referred for physical therapy.
(Tr. 764-65, 780-82.)
On June 7, 2011, plaintiff visited Claire Oglander, MSW,
LCSW, at Catholic Family Services.
score of 60.
Plaintiff was assigned a GAF
On June 14, 2011, plaintiff failed to
appear for a scheduled appointment with Ms. Oglander.
On June 20, 2011, plaintiff reported to Ms. Oglander that
her body ached and she was tired all of the time.
expressed anger, and Ms. Oglander noted plaintiff to be stressed
and overwhelmed. Ms. Oglander continued plaintiff in her GAF score
Plaintiff returned to Ms. Oglander on June 27,
2011, who noted plaintiff not to be making any improvement.
appointment with Ms. Oglander.
Plaintiff’s GAF score remained at 60.
On July 27, 2011, Ms.
On August 3 and August 10, 2011, Ms. Oglander noted
plaintiff to be making slight improvement.
her GAF score of 60.
Plaintiff continued in
On August 17, 2011, plaintiff reported to Ms. Oglander
that she felt overwhelmed and scared.
- 38 -
Plaintiff reported that she
could not perform simple housekeeping and that she had no help.
Plaintiff was noted to continue to make slight improvement.
In a letter addressed to “To Whom it May Concern” dated
August 23, 2011, Ms. Oglander wrote:
It is my professional opinion that any work
Ms. Becker engages in may have a deleterious
effect on her mental health.
physical limitations, coupled with the stress
she is experiencing raising three young
grandchildren due to the sudden death of her
daughter, may overwhelm Ms. Becker.
Becker currently suffers from depression and
anxiety and more stress may exacerbate her
In a letter addressed to “To Whom it May Concern” dated
August 23, 2011, Dr. Kasalova wrote that plaintiff “has not had any
medical evaluation or treatment for substance abuse” and that the
diagnosis of such had been removed from her record.
The ALJ found plaintiff
to meet the insured status
requirements of the Social Security Act through December 31, 2014.
The ALJ found that plaintiff had not engaged in substantial gainful
activity since the alleged onset date, January 1, 2009.
found plaintiff’s possible left-side carpal tunnel syndrome, lumbar
spondylosis, cervical disc bulging, obstructive ventilatory defect,
allegations of headaches and knee pain, and bipolar affective
- 39 -
disorder to constitute 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., Part 404,
Subpart P, Appendix 1.
The ALJ found plaintiff to
have the RFC to
occasionally lift 20 pounds, frequently lift
10 pounds, sit or stand six hours out of an
eight-hour work day, and stand six hours out
of an eight-hour work day. The claimant is
able to understand, remember, and carry out at
least simple instructions and non-detailed
tasks up to and including semi-skilled work at
the specific vocational preference [SVP] level
of three. Additionally, the claimant should
not work in a setting which includes constant/
regular contact with the general public and
should not perform work which includes more
The ALJ found plaintiff able to perform her past relevant work as
a merchandiser and house cleaner.
The ALJ also determined that,
considering plaintiff’s age, education, work experience, and RFC,
vocational expert testimony supported an alternative finding that
plaintiff was able to perform other work as it exists in the
The ALJ thus determined plaintiff not to be under a
disability at any time from January 1, 2009, through the date of
- 40 -
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.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Secretary
of Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992).
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."
42 U.S.C. §§
An individual will be declared
impairments are of such severity that [she] is not only unable to
substantial gainful work which exists in the national economy." 42
U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
Commissioner engages in a five-step evaluation process.
C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-42
The Commissioner begins by deciding whether the claimant
is engaged in substantial gainful activity.
working, disability benefits are denied.
- 41 -
If the claimant is
Next, the Commissioner
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.
Commissioner then determines whether claimant's impairment(s) meets
or equals one of the impairments listed in 20 C.F.R., Subpart P,
If claimant's impairment(s) is equivalent to one of
the listed impairments, she is conclusively disabled.
fourth step, the Commissioner establishes whether the claimant can
perform her past relevant work.
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.
U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971);
Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002).
evidence is less than a preponderance but enough that a reasonable
person would find it adequate to support the conclusion.
v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
evidence test,” however, is “more than a mere search of the record
for evidence supporting the Commissioner’s findings.”
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.”
- 42 -
quotation marks and citations omitted).
supported by substantial evidence on the record as a whole, the
Court must review the entire administrative record and consider:
The credibility findings made by the ALJ.
The plaintiff's vocational factors.
The medical evidence from treating and
The plaintiff's subjective complaints
relating to exertional and non-exertional
activities and impairments.
Any corroboration by third parties of the
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.
Coleman, 498 F.3d at 770;
Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999).
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.
“[I]f there is substantial evidence on the record as a
whole, we must affirm the administrative decision, even if the
- 43 -
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).
The Court now turns to plaintiff’s specific challenges to
the Commissioner’s final decision.
Step 2 Analysis of Severe Impairments
At Step 2 of the sequential evaluation, the ALJ decides
whether the claimant has a severe impairment or combination of
impairments, meaning that which significantly limits her ability to
do basic work activities.30
Plaintiff contends that the ALJ erred
by effectively failing to find plaintiff’s allegations of headaches
and knee impairments to constitute severe impairments at Step 2 of
the analysis, and further erred in failing to find chronic pain
syndrome to be a severe impairment.
The Court addresses each of
these contentions in turn.
Headaches and Knee Impairments
In her written decision, the ALJ stated at Step 2 of the
sequential analysis that plaintiff’s severe impairments included
The ability to do most work activities encompasses “the
abilities and aptitudes necessary to do most jobs.” Williams v.
Sullivan, 960 F.2d 86, 88 (8th Cir. 1992).
physical functions such as walking, sitting, standing, lifting,
pushing, pulling, reaching, carrying, or handling; capacities for
seeing, hearing and speaking; understanding, carrying out and
remembering simple instructions; use of judgment; responding
appropriately to supervision, co-workers and usual work situations;
and dealing with changes in a routine work situation. Id. at 8889.
- 44 -
“allegations of headaches and knee impairments[.]”
determining plaintiff’s RFC at Step 4 of the analysis, however, the
ALJ found there to be no objective medical records to support
inconsistent and show the ALJ to have effectively considered
plaintiff’s headaches and knee impairments not to constitute severe
impairments at Step 2.
In Lacroix v. Barnhart, 465 F.3d 881 (8th Cir. 2006), the
claimant made a similar argument, that is, that the ALJ’s Step 4
RFC analysis was inconsistent with the earlier determination made
at Step 2 that plaintiff’s impairments significantly limited her
The Eighth Circuit soundly rejected this
argument inasmuch as “[e]ach step in the disability determination
entails a separate analysis and legal standard.”
Id. at 888 n.3.
Because plaintiff bases her argument on a contention that the ALJ’s
analysis as to her headaches and knee impairments is inconsistent
between Step 2 and Step 4 of the sequential analysis, her argument
must be rejected on the basis of the Eighth Circuit’s reasoning in
Chronic Pain Syndrome
Plaintiff also contends that the ALJ erred by failing to
find plaintiff’s chronic pain syndrome to be a severe impairment at
Step 2 of the analysis.
In response, the Commissioner argues that
- 45 -
the ALJ did not err inasmuch as plaintiff failed to claim or
testify that chronic pain syndrome was a basis for her alleged
disability. Instead, the Commissioner argues, plaintiff attributed
her pain to fibromyalgia.
Notably, the ALJ likewise did not
consider plaintiff’s fibromyalgia to be a severe impairment at Step
For the following reasons, the ALJ erred in her analysis and
the matter should be remanded for further proceedings.
The undersigned is aware that, as a general rule, “an ALJ
has no ‘obligation to investigate a claim not presented at the time
of the application for benefits and not offered at the hearing as
a basis for disability[.]’”
Battles v. Shalala, 36 F.3d 43, 45 n.2
(8th Cir. 1994) (quoting Brockman v. Sullivan, 987 F.2d 1344, 1348
(8th Cir. 1993)). An exception to this rule exists, however, where
the evidence of record puts the ALJ on notice of the need for
This assessment must be made on a case-by-
Mouser v. Astrue, 545 F.3d 634, 639 (8th Cir. 2008)
(citing Battles, 36 F.3d at 45).
The record here is replete with evidence of the existence
consistent complaints of chronic pain to treating physicians and
specialists; observations and diagnoses of chronic pain made by
treating physicians and specialists; and continued and increasing
use of significant narcotic pain medications, including morphine,
hydrocodone and oxycodone, prescribed specifically for plaintiff’s
chronic pain condition.
In addition, a review of the record shows
- 46 -
that on numerous occasions, physicians suggested that plaintiff’s
perception of such severe and chronic pain may be related to her
Indeed, Dr. Gray, plaintiff’s treating
physician who ultimately became plaintiff’s pain specialist, opined
in December 2009 that plaintiff’s “chronic pain syndrome” was
disabling more from a psychiatric standpoint than a physical one.
The ALJ’s decision, however, is silent as to these significant
observations, diagnoses and treatment regimens for plaintiff’s
Given this substantial and documented evidence, the
question of plaintiff’s chronic pain and chronic pain syndrome was
squarely before the ALJ, obligating her to investigate
impairments further before evaluating plaintiff’s RFC.
Apfel, 187 F.3d 840, 843 (8th Cir. 1999).
The ALJ erred by failing
to do so.
Upon remand, the Commissioner shall obtain a psychiatric
or psychological evaluation to fully evaluate plaintiff’s mental
impairments as they relate to plaintiff’s diagnosed condition of
chronic pain and determine whether her complaints of pain are
psychological in origin. Dozier v. Heckler, 754 F.2d 274, 276 (8th
plaintiff’s treating psychiatrist or by ordering a consultative
In addition, although the Commissioner acknowledges
that plaintiff attributed her pain to fibromyalgia and not chronic
pain syndrome, the undersigned notes the ALJ to have nevertheless
dismissed plaintiff’s diagnosed and longstanding impairment of
- 47 -
fibromyalgia in a cursory manner “[g]iven the absence of any
notations regarding how it was concluded that the claimant had
A review of this determination shows
regarding the existence of this medical condition for the express
diagnoses of treating physicians.
In such circumstances, an ALJ
commits “egregious error.” Delrosa v. Sullivan, 922 F.2d 480, 48485 (8th Cir. 1991).
If an ALJ questions the existence of a
claimant’s diagnosed condition, the ALJ must, at a minimum, order
Id. at 485.
Because the ALJ failed to consider substantial evidence
fibromyalgia and failed to fully and fairly develop the record as
to the effect of such impairments on plaintiff’s ability to perform
work, it cannot be said that the ALJ’s RFC determination is
supported by substantial evidence on the record as a whole.
generally Garza v. Barnhart, 397 F.3d 1087 (8th Cir. 2005) (per
curiam). This cause must therefore be remanded to the Commissioner
for further development of the record as to plaintiff’s chronic
pain syndrome and fibromyalgia; for reconsideration of whether such
impairments constitute severe impairments; and for appropriate
consideration as to what effect, if any, such impairments have upon
plaintiff’s RFC when considered in combination with plaintiff’s
- 48 -
Accordingly, for all of the foregoing reasons,
IT IS HEREBY ORDERED that Acting Commissioner of Social
Security Carolyn W. Colvin is substituted for former Commissioner
Michael J. Astrue as defendant in this cause.
IT IS FURTHER ORDERED that, pursuant to sentence four of
42 U.S.C. § 405(g), the decision of the Commissioner is REVERSED,
proceedings consistent with this opinion.
Because the current
record does not conclusively demonstrate that plaintiff is entitled
to benefits, it would be inappropriate for the Court to award
plaintiff such benefits at this time.
Judgment shall be entered accordingly.
UNITED STATES MAGISTRATE JUDGE
day of September, 2013.
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