Garrison v. Astrue
MEMORANDUM AND ORDER. IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED and this case is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for the further, limited proceedings as set forth above. An appropriate Judgment shall accompany this Memorandum and Order. Signed by Magistrate Judge Thomas C. Mummert, III on 03/25/2013. (CBL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,1
Case number 4:12cv0387 TCM
MEMORANDUM AND ORDER
This is a 42 U.S.C. § 405(g) action for judicial review of the final decision of
Carolyn W. Colvin, the Acting Commissioner of Social Security (the Commissioner),
denying the application of Kimberley Garrison for supplemental security income (SSI)
under Title XVI of the Social Security Act (the Act), 42 U.S.C. § 1381-1383b.2 Ms.
Garrison (Plaintiff) has filed an opening brief and reply brief in support of her complaint;
the Acting Commissioner has filed a brief in support of her answer.
Plaintiff applied for SSI in September 2007, alleging a disability as of May 5, 2006,
caused by spinal problems, frontal lobe problems, a torn liver, hepatitis C, post-traumatic
Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14,
2013, and is hereby substituted for Michael J. Astrue as defendant. See 42 U.S.C. § 405(g).
The case is before the undersigned United States Magistrate Judge by written consent of
the parties. See 28 U.S.C. § 636(c).
stress disorder (PTSD), and anxiety. (R.3 at 120-26.) Her application was denied initially
and after a hearing held in September 2011 before Administrative Law Judge (ALJ) Jennie
L. McLean. (Id. at 6-56.) The Appeals Council denied Plaintiff's request for review,
effectively adopting the ALJ's decision as the final decision of the Commissioner. (Id. at
Testimony Before the ALJ
Plaintiff, represented by counsel, and Christy V. Wilson, a certified rehabilitation
counselor, testified at the administrative hearing.
Plaintiff testified that she was then 45 years old, has completed the ninth grade, has
obtained a General Equivalency Degree (GED), and has a certificate in "[g]ardening and
building trades." (Id. at 24-25.) She had married in March 2010; her last name is now
Bunton. (Id. at 23-24, 29.)
Plaintiff was incarcerated in March 2005, released in October 2005, incarcerated
again for parole violations in June 2006, released again in February 2007, incarcerated
again in middle 2008, and released again on February 13, 2009. (Id. at 25-27.) Plaintiff
has, at various times, been charged with tampering with a motor vehicle, passing bad
checks, and possession of methamphetamine and Xanax. (Id. at 36.) Her parole violations
include not reporting to her parole officer and assault. (Id. at 36-37.) When released from
prison the last time, she lived with her eldest son until December 2010. (Id. at 27-28.) She
References to "R." are to the administrative record filed by the Commissioner with her
then lived by herself for a few months before moving in with her future husband. (Id. at
28.) Her husband is now incarcerated for abuse after beating her. (Id. at 28-29.) She has
been living by herself since then. (Id. at 29-30.) Her only sources of support are food
stamps and gifts from people or charities. (Id. at 30-31.) She also receives Medicaid. (Id.
Plaintiff has a driver's license and, until three months ago, had a vehicle. (Id. at 31.)
She walks to wherever she has to go, including the grocery store, family services, and her
attorney's office. (Id.)
Plaintiff first started smoking cigarettes at five years old, was allowed to smoke at
twelve, and stopped smoking the previous June. (Id. at 33.) Plaintiff last used an illegal
substance – heroin – on July 2, 2011. (Id. at 38-39.) This was a suicide attempt. (Id. at
40.) Before that, the last time she had used heroin was June 2010. (Id. at 41.)
Asked by her attorney what is the primary reason she is unable to hold a full-time
job, Plaintiff replied that it is depression. (Id. at 39.) She also has anxiety problems being
around people, trouble with her thyroid, and difficulties lifting. (Id.) Even with medication,
she has panic attacks at least once or twice a week. (Id. at 40.) Her depression causes her
to "cry for days." (Id.) She has difficulties with concentration and focus. (Id.) Asked how
that affects her, she replied that she can not remember. (Id.) Plaintiff also has been dealing
with PTSD. (Id. at 41.) She relapses without counseling, which she receives weekly or,
sometimes, daily. (Id.) She is taking medications, the side effect of which is drowsiness.
(Id. at 41-42.) She is beginning to see a new psychiatrist. (Id. at 42.) Stress prevents her
from problem-solving, managing her time, and focusing. (Id.) Plaintiff has been reading
the same book for a couple of months because she cannot keep track of what she has read.
(Id. at 44.)
Plaintiff testified that she cannot stand for longer than thirty minutes. (Id. at 42-43.)
Because of her carpal tunnel syndrome, her hands go numb and she is unable to finish
washing her dishes. (Id. at 43.) Thyroid problems decrease her appetite. (Id.) She does
not take any medication for her thyroid. (Id. at 44.) She has to take breaks when walking
because her right leg gives out on her. (Id.) Her "wrists are weak," making it difficult for
her to lift anything heavy. (Id.)
Ms. Wilson testified as a vocational expert (VE).
Noting that Plaintiff has no past relevant work, the ALJ asked the VE to assume a
hypothetical person of Plaintiff's age and education who can push, pull, lift, and carry
twenty pounds occasionally and ten pounds frequently. (Id. at 45.) This person can stand,
sit, and walk for six hours in an eight-hour day. (Id. at 45-46.) She can do simple tasks,
but can not have any public contact or perform customer service. (Id. at 46.) She can
interact appropriately with supervisors and coworkers for superficial work purposes and can
adapt to work situations. (Id.) Asked if there are jobs in the regional and national economy
this person can perform, the VE replied that there are. (Id.) Specifically, there are jobs as
a bakery worker, bench assembler, and electrical equipment assembler. (Id.)
If this hypothetical person can push, pull, lift, and carry fifteen pounds occasionally
and less than ten pounds frequently, can stand and walk for two hours out of eight, sit for
six hours out of eight, and has the same non-exertional limitations as the first hypothetical
person, there are such jobs as a touch-up screener, addresser, and polisher the person can
perform. (Id. at 46-47.)
If this hypothetical person also is "markedly limited in [her] ability to complete a
normal workday or work week without interruption from psychologically-based symptoms,"
with "markedly" being defined as "resulting in limitations that seriously interfere with the
ability to function independently," competitive work would be eliminated. (Id. at 48.)
The VE stated that her testimony did not conflict with the Dictionary of
Occupational Titles (DOT). (Id.)
Medical and Other Records Before the ALJ
The documentary record before the ALJ included forms Plaintiff completed as part
of the application process, documents generated pursuant to her application, and records
from various health care providers.
On a Disability Report – Adult form, Plaintiff listed her height as 4 feet 11 inches
and her weight as 129 pounds. (Id. at 154-63.) She listed her disabling impairments as
spinal problems, frontal lobe problems, a "torn liver," PTSD, swollen legs and feet, and
anxiety. (Id. at 155.) These impairments prevent her from standing or sitting too long.
(Id.) They first interfered with her ability to work on May 5, 2006, and prevented her from
working that same day.4 (Id.) She stopped working, however, in September 2005 when she
A prior application had been initially denied in December 2007 and not pursued further. (Id.
was incarcerated. (Id.) The longest she has worked is for three to four weeks in 1997. (Id.
at 156.) She had been a housekeeper for a hotel. (Id.) She had not been in special
education classes. (Id. at 162.) On another Disability Report – Adult form, Plaintiff
included hepatitis C in her list of disabling impairments. (Id. at 168-78.) She reported that
she stopped working in April 2009. (Id. at 169.) She had then been working part-time for
three weeks but could not continue. (Id.) She had been in special education classes in 1975
and 1976. (Id. at 177.)
A friend of Plaintiff's completed a Function Report Adult – Third Party form on her
behalf. (Id. at 179-86.) She described Plaintiff's day as beginning early because she does
not sleep well due to insomnia and panic attacks. (Id. at 179.) Plaintiff is prevented from
working and socializing because of mental illness and "severe physical abuse," including
a broken neck and collapsed lung. (Id. at 180.) Her back condition causes her occasional
problems with dressing. (Id.) Plaintiff occasionally needs to be reminded to take care of
her personal needs and grooming due to short-term memory problems. (Id. at 181.) She
does not go outside often due to her panic attacks and irritable bowel syndrome (IBS). (Id.
at 182.) Because of her impairments, Plaintiff no longer fishes, gardens, jogs, or exercises.
(Id. at 183.) Her impairments adversely affect her abilities to lift, sit, understand, squat,
kneel, bend, talk, stand, reach, see, walk, remember, concentrate, use her hands, complete
tasks, and get along with others. (Id. at 184.) She can follow written instructions well, but
not spoken ones. (Id.) She has to rest for fifteen minutes after walking for thirty minutes.
(Id.) Because of attention deficit hyperactivity disorder (ADHD), she can pay attention
only for short periods. (Id.) She does not get along well with authority figures, nor does
she handle stress or changes in routine well. (Id. at 184-85.)
Plaintiff also completed a Function Report. (Id. at 195-202.) She described her daily
activities as obsessing about cleaning her apartment, pacing the floor, lying on the couch,
and, when necessary, going to doctor appointments. (Id. at 195.) If she becomes deeply
depressed, her friends help her pay her bills. (Id. at 198.) She does not get along well with
her mother and sister because her mother's drinking causes Plaintiff to have painful
flashbacks. (Id. at 200.) Her impairments adversely affect her abilities to lift, sit, squat,
stand, reach, see, walk, remember, concentrate, use her hands, complete tasks, and climb
stairs. (Id.) They do not affect her abilities to understand, use her hands, kneel, bend, or
get along with others. (Id.) She cannot follow written instructions well, but, if focused, can
follow spoken instructions well. (Id.) Unless she feels threatened, she can get along well
with authority figures, with the exception of the police. (Id. at 201.) She does not handle
changes in routine well. (Id.)
Plaintiff completed a Disability Report – Appeal form after the initial denial of her
application. (Id. at 209-15.) Since she had last completed a disability report, her back and
pelvis keep going out on her, causing her "great pain." (Id. at 210.) This had begun on
November 17, 2009. (Id.) Her sleep pattern, pain, and depression were all worse. (Id. at
A earnings report generated for Plaintiff for the years from 1984 to 2010 list
reportable earnings in only fifteen of the twenty-seven years. (Id. at 127-28, 137, 150.) In
only four years did the annual earnings exceed $500. (Id.) Her highest annual earnings
were $1,348, in 1997. (Id.)
School records of Plaintiff indicate that she dropped out of high school in August
1983, reentered in August 1984, and dropped out again one week later. (Id. at 218.)
The medical records before the ALJ are summarized below in chronological order,5
with the greatest detail being given to those after her alleged disability onset date in May
Plaintiff was hospitalized in the Phelps County Regional Medical Center (Phelps
County) for four days in July 1997 after sustaining a collapsed lung in an automobile
accident. (Id. at 243-51.)
In March 2006, Plaintiff consulted a health care provider at Phelps County for pain
medication after having two teeth extracted the week before. (Id. at 236-37, 277-78.) She
wanted a medical clearance for a program at the Salem Treatment Center for alcohol abuse.
(Id. at 237.) It was noted that she was positive for alcohol and illicit drug use. (Id.) She
had been released from jail the previous October after being confined for fifteen months.
(Id.) She had been drinking steadily since then. (Id.) She had been diagnosed with PTSD
and anxiety. (Id.) Both were under control when she was taking Xanax. (Id.) She also had
neck and low back pain. (Id.) On examination, she was in no acute distress and was alert
and oriented to time, place, and person. (Id.) Straight leg raises were negative.6 (Id.)
Records of Plaintiff's counseling sessions are separately summarized.
"During a [straight leg raising] test a patient sits or lies on the examining table and the
examiner attempts to elicit, or reproduce, physical findings to verify the patient's reports of back pain
Plaintiff was to have a magnetic resonance imaging (MRI) of her neck, was scheduled for
an appointment with the mental health professionals, and was encouraged to see a
psychiatrist for her medications due to her history of abuse. (Id. at 236.) The MRI revealed
right central disc protrusion at C6-7 impinging on the thecal sac and minimal central disc
bulging at C3-4 and C4-5. (Id. at 232, 238.) The spinal cord was normal. (Id.)
Plaintiff returned to Phelps County on April 17 with complaints of neck and midback pain and, for the past two weeks, headaches. (Id. at 235-36, 276-77.) She had started
the program at Salem Treatment Center and wanted a prescription for Xanax and Vicodin,
both of which had helped in the past. (Id. at 235.) She was given the requested
prescriptions and was to have an MRI of her thoracic spine. (Id.) She did not keep the
appointment for the MRI. (Id.)
On June 8, when confined by the Missouri Department of Corrections (DOC),
Plaintiff sought medical treatment for anxiety. (Id. at 262-63.) She reported that she had
taken Xanax for over three years. (Id. at 262.) She was oriented to time, place, and person,
and had a friendly mood. (Id. at 263.) Her insight and judgment were "poor/fair." (Id.)
Five days later, Plaintiff had an intake mental health interview. (Id. at 263-64.) She
reported a history of sexual abuse by uncle, cousins, step-father's friends, and mother. (Id.)
She had been diagnosed with PTSD, generalized anxiety disorder, and depression. (Id. at
263.) On examination, her mental status was within normal limits. (Id.)
by raising the patient's legs when the knees are fully extended." Willcox v. Liberty Life Assur. Co.
of Boston, 552 F.3d 693, 697 n.3 (8th Cir. 2009) (internal quotations omitted).
Two weeks later, on June 29, she had an initial visit at the psychiatric clinic. (Id. at
264-66.) On examination, her anxiety was controlled, her thoughts were logical, her sleep
was adequate. (Id. at 265.) She was alert and oriented to time, place, and person, and had
a history of polysubstance dependence. (Id.) She was diagnosed with PTSD, dysthymic
disorder,7 and major depressive disorder. (Id.) Her Global Assessment of Functioning
(GAF) was 60.8 (Id.)
The next month, Plaintiff reported that she wanted to start therapy. (Id. at 266.)
On October 11, Plaintiff reported that Celexa was not working, and she was feeling
increasingly anxious. (Id.)
Two weeks later, Plaintiff was less anxious, had a better mood, and was having
nightmares about men trying to kidnap her. (Id. at 267.) Celexa helped her control her
anxiety. (Id.) Beginning when she was four years old, she had been sexually abused by her
uncle. (Id.) One week later, she requested that her dosage of Celexa be reduced. (Id. at
268.) "Her mood was pleasant but a bit hyper." (Id.) She had been making "peace w[ith]
her past." (Id.) Two days later, on November 9, Plaintiff participated in a group session,
"The essential feature of Dysthymic Disorder is a chronically depressed mood that occurs
for most of the day more days than not for a least two years . . . ." Diagnostic and Statistical
Manual of Mental Disorders 376 (4th ed. Text Revision 2000) (DSM-IV-TR).
"According to the [DSM-IV-TR], the Global Assessment of Functioning Scale [GAF] is
used to report 'the clinician's judgment of the individual's overall level of functioning,'" Hudson v.
Barnhart, 345 F.3d 661, 663 n.2 (8th Cir. 2003), and consists of a number between zero and 100
to reflect that judgment, Hurd v. Astrue, 621 F.3d 734, 737 (8th Cir. 2010). A GAF score between
51 and 60 indicates "[m]oderate 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)." DSM-IV-TR at 34 (emphasis omitted).
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reporting that she struggled to recover from a life-threatening rape perpetrated by a man
who had killed other victims. (Id. at 268-69.) It was noted that she was "doing a good job
of channeling her anger into positive outlets to help with her recovery." (Id. at 268.)
Plaintiff was described on November 21 as having a good mood, insights, and
judgment. (Id. at 269.) Her recent and remote memory were intact. (Id.)
The following month, on December 13, it was noted that Plaintiff was not taking her
medication as prescribed. (Id.) She wanted the Celexa discontinued. (Id.)
Eight months later, in August 2007, Plaintiff returned to Phelps County with
complaints of headaches, which she attributed to her chronic neck pain. (Id. at 233-34,
274-75.) She reported that OxyContin was too strong, but Vicodin helped. (Id.) She had
a history of hepatitis C, generalized anxiety disorder, and PTSD. (Id. at 233, 234.) She also
reported that her anxiety was worse since her last visit. (Id. at 233.) She was prescribed
Xanax, Zoloft, and Trazalene. (Id.)
Plaintiff was again confined by the DOC in October. (Id. at 271-73, 288-90.) She
reported at a mental health intake evaluation that she had been sober for sixteen months
before relapsing for two weeks. (Id. at 272.) She was again sober. (Id.) Her "drug of
choice" was methamphetamine and "'uppers.'" (Id.) She had last used when she was 40
years old; she was then 41 years old. (Id.)
Plaintiff's 2008 medical records are all from the DOC. She had relapsed after
drinking with her mother and was reconfined on an assault charge. (Id. at 291-92.)
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On March 14, Plaintiff reported that she had been having blood in her stool
occasionally for the past two years and had IBS; she wanted a colonoscopy. (Id. at 298.)
A culture was negative. (Id. at 298, 303.) Two weeks later, Plaintiff was crying and upset
about past abuse. (Id. at 292.) She was oriented to time, place, and person. (Id.) She had
a sad, tearful mood, good insight and judgment, and intact recent and remote memory. (Id.)
In July, Plaintiff complained of headaches, reported that she had taken Naproxen
in the past and that had helped with the pain.
(Id. at 322-23.)
She also had
gastroesophageal reflux disease (GERD); Prilosec had helped. (Id.) The doctor refused to
prescribe Naproxen, but did prescribe Prilosec. (Id. at 323.)
Plaintiff reported in August that she was anxious, but did not want to become
dependent on medications. (Id. at 293.) She was instructed on relaxation techniques. (Id.)
In December, Plaintiff reported an increase in anxiety. (Id. at 293-94.) She wanted
to resume taking psychotropic medications. (Id. at 293.)
Beginning the previous month, on November 13, and until February 5, 2009,
Plaintiff participated in a DOC substance abuse treatment program. (Id. at 366-69.) She
reported four prior episodes of substance abuse treatment. (Id. at 366.) On discharge, it
was recommended that she attend an aftercare program with weekly support meetings and
Six days after her discharge, on February 11, 2009, she was seen at the Skaggs
Community Health Center for complaints of anxiety that had begun the day before. (Id. at
370-72.) She was not depressed. (Id. at 370.) Her symptoms were moderate, and did not
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include, for example, headaches, abdominal pain, vomiting, black stools, or joint pain. (Id.)
She was prescribed Vistaril and was discharged in good and stable condition. (Id. at 371.)
On June 9, Plaintiff consulted the health care providers at the Family Practice Clinic
to establish care. (Id. at 379-80.) She complained of knee discomfort and popping for the
past two months, and was prescribed Soma and Percocet. (Id. at 379.)
On June 18, Plaintiff returned to the clinic after falling when her left knee gave out.
(Id. at 377-78.) She was having trouble with her knees and lower back. (Id. at 377.) She
was scheduled for a colonoscopy, which revealed "five small diminutive polyps." (Id. at
On July 3, Plaintiff reported to the health care providers at the clinic that she was
working as a landscaper. (Id. at 374-76.) After a physical examination revealed bruises on
her shoulders, she admitted that she was being subjected to domestic abuse. (Id.) She was
diagnosed with abnormal thyroid, anxiety, domestic violence, and chronic back pain. (Id.)
She was prescribed OxyContin (Id.)
Plaintiff was terminated on July 23 from the treatment program at Gibson Recovery
Center after failing to return for treatment.9 (Id. at 564-65.)
This is the only record from the Gibson Recovery Center.
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In November, Plaintiff underwent a bone density and vertebral assessment at Phelps
County, revealing no vertebral deformities but osteopenia10 in her spine and neck. (Id. at
X-rays taken in January 2010 of Plaintiff's lumbar spine revealed no abnormalities.
(Id. at 567.) X-rays of her cervical spine showed straightening throughout the spine with
no fracture or dislocation and a mild multi-level degenerative cervical spondylosis at C4-5,
C5-6, and C6-7 levels. (Id. at 568.)
On February 10, Plaintiff consulted the health care providers at Dixon Family
Practice (Dixon). (Id. at 490.) She needed medications, including refills for methadone and
Xanax. (Id.) She returned two weeks later, but refused a referral to an endocrinologist. (Id.
at 489.) On March 10, she requested refills of her medication. (Id. at 488.)
On March 29, Plaintiff consulted M. Akhtar Choudhary, M.D., with the Pain and
Sleep Center of Rolla Neurology, about worsening headaches and neck and back pain. (Id.
at 420-22.) The pain radiated to her arms and legs and was aggravated by walking,
standing, and bending. (Id. at 420.) Numbness and weakness in her right upper and lower
extremities made it difficult for her to hold things and gave her the feeling she was going
to fall. (Id.) Her headaches were aggravated by neck movements. (Id.) Her medical
history was "[s]ignificant for anxiety, arthritis, asthma, broken bone, depression, insomnia,
joint injuries, migraine headaches, osteoporosis, [and] vision problems." (Id.) She was
Osteopenia is "a condition in which bone density is below normal and may lead to
osteoporosis." Mayo Clinic, Bone density test, http://www.mayoclinic.com/health/bone-density-test
(last visited March 4, 2013).
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married and lived with her husband. (Id.) She denied a history of drinking or using drugs.
(Id.) On examination, she was oriented to time, place and person; had normal attention and
concentration; and had fluent and comprehensive speech. (Id. at 421.) Her muscle tone
was normal. (Id.) The muscle strength in her hands and in hip flexion was diminished, but
was otherwise normal. (Id.) She had decreased pin prick sensation at C6-7 and L4-5 on the
right. (Id.) She was able to walk without support. (Id.) "She seem[ed] to have cervical as
well as lumbar radiculopathy." (Id.) She was to have an MRI of her cervical spine and
nerve conduction studies of her right upper and lower extremities. (Id. at 422.) She was
prescribed OxyContin, Ultram, and Topamax. (Id.) The MRI of her cervical spine revealed
degenerative disc disease, a nodule in the left lobe of her thyroid, and a central disc
protrusion at C3-4 with a right central disc protrusion at C6-7 that had not been previously
seen. (Id. at 570-71.) The nerve conduction studies were consistent with mild carpal
tunnel in her right hand. (Id. at 414-17.)
Plaintiff was seen on April 6 at the Phelps County emergency room after friends
found her unresponsive. (Id. at 604-07.) She had had a recent, heavy intake of alcohol.
(Id. at 604.) A CT scan of her head was normal. (Id. at 605, 606.)
Three days later, she returned to Dixon for refills of her medication, including
methadone, Xanax, and Cymbalta. (Id. at 487.) On May 7, she was given refills of
methadone, Soma, and Cymbalta.11 (Id. at 485.)
Between the two Dixon visits, Plaintiff consulted Dr. Choudhary. (Id. at 418-19.) His
notes are generally illegible.
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Plaintiff was taken by ambulance to the Phelps County emergency room on June 2
after being assaulted by her husband. (Id. at 582-603.) A computed tomography (CT) scan
of her cervical spine showed multi-level cervical spondylosis and an indeterminate left
thyroid nodule. (Id. at 592.) A CT scan of her head showed no fractures or hemorrhages.
(Id. at 593.) An ultrasound of her thyroid showed multiple bilateral thyroid nodules with
dominant nodules in the inferior pole of her left thyroid lobe. (Id. at 585.) With the
exception of an endotracheal tube inserted when she arrived at the hospital, a chest x-ray
was normal. (Id. at 587-88.) She was treated with pain medication and released on June
7 in stable condition. (Id. at 583.) The same day, she requested refills of her three
medications from Dixon. (Id. at 484.)
On June 27, Plaintiff was treated at the Phelps County emergency room for a
headache. (Id. at 580-81.)
Plaintiff returned to Dixon in July, August, September, and October for refills of her
medications. (Id. at 479-83.) At the July visit, prescriptions for Wellbutrin and Remeron
were added to her other three prescriptions. (Id. at 483.)
On October 4, Plaintiff underwent an initial intake assessment for Pathways
Community Behavioral Healthcare, Inc. (Pathways) for participation in the Comprehensive
Pain and Rehabilitation Center (CPRC) program. (Id. at 453-56.) She was dressed and
groomed appropriately; was oriented to time, place, person, and situation; and had a normal
affect. (Id. at 456.) Stress, anxiety, and depression were listed as Plaintiff's presenting
issues. (Id. at 453.) She had three years of college. (Id. at 454.) The current symptoms
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of her psychiatric disorder included periods of manic activity, severe anxiety, panic attacks,
nightmares and flashbacks about traumatic incidents, racing thoughts, difficulty
concentrating when depressed, crying, sleeplessness, isolation, loss of appetite, and
insomnia. (Id.) Plaintiff reported that Dr. Choudhary had prescribed OxyContin, although
she had told him she had an addictive personality and wanted to be taken off the drug, and
that Dr. Young Kim12 had prescribed methadone, but she did not want to take that either.
(Id. at 455.) She was trying to see if a former physician, Dr. Parks, would take her back.
(Id. at 455, 456.) She was diagnosed with PTSD; major depressive disorder, recurrent,
moderate; generalized anxiety disorder; and alcohol dependence. (Id. at 450-52.)
After her early October visit for refills, Plaintiff returned to Dixon on October 27,
requesting an early refill of methadone; her Xanax dosage was increased. (Id. at 478.) An
ultrasound of her thyroid gland revealed small hypoechoic13 nodules in the right lobe and
a complex nodule in the lower pole of the left lobe. (Id. at 477.) Plaintiff was referred to
an endocrinologist. (Id. at 476.)
In November, Plaintiff had a comprehensive assessment at Pathways. (Id. at 43657.) Plaintiff reported that she had been hospitalized four times for psychiatric reasons, but
had never had any outpatient care. (Id.) She did not have any limitations due to physical
health or disability. (Id. at 439.) She had not used alcohol or methamphetamine in the past
The only legible reference to this physician is to a Dr. Kim Young, who apparently was
with Dixon. The parties and the ALJ refer to the physician as Dr. Young Kim; for ease of reference,
the Court will do likewise.
Hypoechoic is "[a] region in an ultrasound image in which echoes are weaker or fewer than
normal or in the surrounding regions." Stedman's Medical Dictionary, 835 (26th ed. 1995).
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thirty days. (Id. at 440.) She had been married four times, and was divorcing her current
husband. (Id. at 443.) She was satisfied with her current living situation. (Id. at 444.) She
had three years of college, and had not been in special education. (Id. at 445.)
Subsequently, Plaintiff underwent a functional skills evaluation at Pathways. (Id.
at 428-35.) She had no significant difficulties in self-care, housekeeping, or shopping. (Id.
at 428, 430.) She did have significant difficulties in appropriately expressing her anger,
maintaining appropriate boundaries, cooperating, coping with conflict, interacting with
others, and expressing her needs and desires. (Id. at 431.) She had not experienced
significant difficulties in her relationships with employers or coworkers. (Id. at 432-33.)
She was reluctant to ask for help, became confused, decompensated, and was slow to take
action. (Id. at 433.) She did not have any significant difficulties in coping emotionally with
change, but did have such difficulties with making behavioral and cognitive adjustments to
change. (Id. at 434.) She was considered to be "fully capable of living independently with
little help from others." (Id. at 435.)
Plaintiff returned to Dixon in December for early refills of her medications. (Id. at
During this same time period when she was seeking refills of her medications from
Dixon, she was consulting Dr. Choudhary. The records of those visits are generally
illegible, but it is clear that Dr. Choudhary consistently continued Plaintiff on her
medication. (See id. at 410-13, 466-67.) His notes of December 3 include a diagnosis of
cervical and lumbar radiculopathy. (Id. at 463-65.) On December 27, Plaintiff was started
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back on OxyContin – it had apparently been stopped at some point. (Id.) On January 18,
2011, the OxyContin was again stopped. (Id.)
Notes of a February 8, 2011, visit to Dixon for refills of medications indicate that
the refills were not due for two weeks. (Id. at 472.) They were apparently given on
February 16. (Id.)
On March 4, Plaintiff consulted the health care providers at St. John's Clinic in
Lebanon, Missouri, to establish care. (Id. at 509, 517-31.) Her medical history included
asthma, anxiety, hypothyroidism, arthritis, disc degeneration, and hepatitis C. (Id. at 517,
520-21.) She did not drink or use drugs, but did smoke cigarettes. (Id. at 518.) On
examination, she had neck pain. (Id. at 524.) She reported that she had been diagnosed
with migraines, but had not needed to take medication for more than a month and was doing
fine. (Id.) She did not have joint pain. (Id.) She had a normal range of motion, normal
reflexes, normal muscle tone, and was alert and oriented to time, place, and person. (Id.)
She was diagnosed with a thyroid nodule, neck pain, chronic pain, tobacco use disorder, and
anxiety. (Id. at 524-25.) Her Percocet prescription was refilled; her Xanax dosage was
increased. (Id. at 525.)
Two weeks later, Plaintiff was seen at the emergency room at Phelps County. (Id.
at 459-61.) She was nervous, out of medication, and wanted Xanax, Soma, and Dilaudid.
(Id. at 459.) She was trying to get disability. (Id.) She was given Xanax and Ultram, and
advised to followup with her physician at Pathways. (Id. at 461.)
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On March 28, Plaintiff returned to the St John's Clinic. (Id. at 510-16, 505.) It was
noted that a thyroid ultrasound had revealed a multinodular goiter and one dominant nodule.
(Id. at 513.) Her thyroid hormone was normal. (Id.) A thyroid scan was ordered, and
Plaintiff was referred to an endocrinologist. (Id.) Plaintiff reported that she continued to
have neck pain and was taking Percocet to help control the pain. (Id.) A referral to a pain
management clinic was pending. (Id.)
Four days later, on April 1, Plaintiff went to St. John's Clinic to have lab work done.
(Id. at 492, 506-08.) She returned on May 2 to discuss treatment for her hepatitis C. (Id.
at 493-504.) Also, she reported that her pain was controlled and requested to be switched
to a different, longer-acting medication from which she could eventually taper off. (Id. at
497.) Her prescription for Percocet was changed to the generic form, oxycodone. (Id. at
498.) Plaintiff further reported that she had been started on Wellbutrin by the providers at
Pathways; it was helping. (Id. at 497.) She was referred to another clinic for her hepatitis
C treatment. (Id. at 498.) She was to return in four weeks. (Id.)
Five days later, Plaintiff had a psychiatric evaluation at Pathways by Shirley Eyman,
M.D. (Id. at 426-27.) She was sporadically taking Wellbutrin, i.e., she would take it, stop
taking it when it appeared to be working, and then restart. (Id. at 426.) She reported she
had not used methamphetamine or alcohol for years. (Id.) On examination, Plaintiff was
pleasant, cooperative, alert, and with fair insight and judgment, unremarkable speech, and
an anxious affect. (Id. at 427.) She reported that she was always angry. (Id.) Dr. Eyman's
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diagnosis was PTSD and depression, not otherwise specified.14 (Id.) Plaintiff's GAF was
Plaintiff saw Dr. Eyman again on April 25 to request that a disability form be
completed. (Id. at 425.)
In May, Plaintiff went to Dixon for refills of her medications. (Id. at 469.)
Plaintiff was seen at the St. John's Clinic on June 13 for a follow-up visit and for
complaints of a burning sensation in her low back associated with a rash that had appeared
one week earlier. (Id. at 609, 617-22.) Although her pain was stable, the oxycodone she
was taking was not controlling the pain, but was causing her constipation and nausea. (Id.
at 619.) Plaintiff was prescribed Soma, Percocet, and Xanax. (Id. at 620.)
Plaintiff had a visit to St. John's Spine Center and St. John's Pain Management
Clinic, both in Rolla, Missouri, on June 28. (Id. at 661-77.) Her symptoms included joint
pain, migraines, thyroid disease, palpitations, depression, anxiety, and constipation. (Id.
at 675.) She rated her back pain at its best as close to "none," at its worst as "unbearable,"
and on the average as closer to "none" than to "unbearable." (Id. at 671.) Her back pain
According to the DSM-IV-TR, each diagnostic class, e.g., adjustment disorder, has at least
one "Not Otherwise Specified" category. DSM-IV-TR at 4. This category may be used in one of
four situations: (1) "[t]he presentation conforms to the general guidelines for a mental disorder in
the diagnostic class, but the symptomatic picture does not meet the criteria for any of the specific
disorders"; (2) "[t]he presentation conforms to a symptom pattern that has not been included in the
DSM-IV but that causes clinically significant distress or impairment"; (3) the cause is uncertain; or
(4) there is either insufficient data collection or inconsistent, contradictory information, although he
information that is known is sufficient to place the disorder in a particular diagnostic class. Id.
A GAF score between 31 and 40 is indicative of "[s]ome impairment in reality testing or
communication . . . OR major impairment in several areas, such as work or school, family relations,
judgment, thinking, or mood . . . ." DSM-IV-TR at 34 (emphasis omitted).
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was stabbing and aching; her neck pain was aching. (Id.) Her pain was worse when she
stood, walked, or bent over. (Id.) It was better when she lay down. (Id.) She had not
smoked for three weeks. (Id. at 674.) On examination, she a normal range of motion in her
cervical spine, although she reported some discomfort with flexion and, to a lesser degree,
with rotation. (Id. at 663, 668.) She was not tender to palpation of her spine midline in the
cervical, thoracic, or lumbar region. (Id.) She was tender over her lower cervical
paraspinous muscles, trapezius musculature, and sacroiliac joints. (Id.) Her upper and
lower extremity strength was normal and symmetrical. (Id.) Her gait was normal. (Id.) She
was diagnosed with cervical radiculopathy and sacroiliac joint discomfort. (Id. at 663, 666.)
An MRI of her cervical spine was to be scheduled. (Id. at 666.) She did not drink alcohol
or use drugs. (Id. at 665.)
She was to return in one month, and did. (Id. at 610-16, 620, 622.) At this followup, July 18 visit, her prescriptions were renewed. (Id. at 612.)
That same day, Plaintiff returned to Dr. Eyman. (Id. at 647-48.) She reported that
she was doing badly. (Id. at 647.) Her prescription for Wellbutrin had been discontinued,
and she was taking some pills she had left over. (Id.) She was taking Percocet for her pain.
(Id.) She was getting Xanax from another physician. (Id.) She wanted to continue taking
Ambien, which helped her sleep, and Wellbutrin, which helped with her anxiety. (Id.) She
was given prescriptions for both, in addition to another prescription for anxiety, Neurontin.
(Id. at 648.)
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Plaintiff was admitted on July 3 to Phelps County, complaining of right arm pain,
swelling, and redness during the past twenty-four hours after injecting heroin. (Id. at 53362.) Her medical history included asthma, colon cancer, hepatitis C, and hypothyroid. (Id.
at 553.) Plaintiff reported that her psychiatric problems had begun "many years ago" when
she started injecting heroin. (Id. at 546.) She had been drug-free for twenty years until
relapsing a year earlier. (Id. at 537, 546.) She was given an antibiotic and warm soaks for
the swelling in her right elbow. (Id. at 546-47.) The plan was to move Plaintiff to the
Center for Psychiatric Services once a bed became available. (Id. at 552.) While
hospitalized, Plaintiff reported being raped by a male employee at the hospital; he denied
it, saying the act was consensual. (Id. at 548-49.) On being discharged on July 8, Plaintiff
refused the transfer to the psychiatric unit, stating that she would consult with them on an
outpatient basis. (Id. at 537-38.)
One week later, Plaintiff consulted Uzma Khan, M.D., with Lake Endocrinology
Clinic for evaluation of her multinodular goiter. (Id. at 679-84.) Dr. Khan was to obtain
lab tests to determine whether the goiter was benign and then would discuss with Plaintiff
whether to proceed with a fine needle aspiration. (Id. at 680.)
Plaintiff was seen in August at St. John's Clinic and given refills of her medications,
including Neurontin, Xanax, Soma, Valtrex, and Wellbutrin (Id. at 685-94.)
While seeking the above-described treatment in 2011, Plaintiff also had sessions with
counselors at Pathways, beginning with one on May 13 when she informed the counselor
assisting her with paperwork to obtain financial and housing assistance that she had recently
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been diagnosed with hepatitis A and also had hepatitis C, throat cancer, and a liver that was
"going bad." (Id. at 659.) Four days later, the counselor noticed that, for the third time in
a row, Plaintiff's eyes were droopy and some of her words were slurred. (Id. at 657-68.)
Plaintiff denied using anything. (Id. at 657.) Plaintiff did not keep her May 19 appointment
and could not be found. (Id. at 656.) She contacted the counselor four days later to
reschedule. (Id. at 654-55.) She missed the rescheduled appointment. (Id. at 653.) At the
next, July 18 appointment, they discussed housing issues. (Id. at 649-50.) Plaintiff was
unable to keep her July 22 appointment. (Id. at 645-46.) Four days later, Plaintiff discussed
with the counselor going to the treatment center because she had been notified that she was
going to be evicted as she had not had the utilities turned on where she was living and was
considered a squatter. (Id. at 639-40.) The following day, she reported that she had been
clean and sober for two weeks. (Id. at 643-44.) On July 29, Plaintiff reported to her
counselor that some of her Wellbutrin pills were missing from her pill case, and her
Percocet, Soma, and Ambien were entirely gone. (Id. at 636-37.) A woman who Plaintiff
had let stay with her had taken them. (Id. at 636.) Plaintiff missed the next appointment,
and when asked on August 12 about an apparent needle mark on her right arm, she denied
using during the past two weeks and explained that it was from an infection when she had
last used the month before. (Id. at 634-35.) On August 16, Plaintiff's counselor took her
to the drugstore for refills of prescriptions. (Id. at 632-33.) Six days later, Plaintiff relapsed
and took a thirty-day supply of Xanax and Ambien in four days. (Id. at 630-31.)
- 24 -
Also before the ALJ were reports of examining and non-examining medical
consultants and an assessment by a treating physician of Plaintiff's mental functional
Pursuant to an earlier application, Plaintiff underwent a psychological evaluation by
Brian Cysewski, Ph.D., a clinical psychologist, in June 1998. (Id. at 284-87.) She reported
dropping out of school in the ninth grade after becoming pregnant. (Id. at 284.) She had
been an average student and had not been in any special education classes. (Id.) She was
unable to work due to a broken right foot which made it difficult for her to stand. (Id.) She
was a recovering alcoholic. (Id.) She began drinking in preschool; however, her drinking
became problematic when she was in the seventh grade. (Id. at 285.) She had been married
three times. (Id.) "[M]ost if not all of" her husbands had been physically abusive. (Id.)
She had been taking Zoloft, had stopped, and was now having nightmares. (Id. at 284, 285.)
Her intellectual functioning appeared to be in the low average range. (Id.) Dr. Cysewski
diagnosed her with dysthymia, rule out16 PTSD, and alcohol dependence, "reportedly in
remission." (Id.) Her GAF was 60. (Id. at 286.)
In October 2005, pursuant to another, earlier application, Plaintiff underwent a
psychological evaluation by Thomas J. Spencer, Psy.D. (Id. at 279-83.) Plaintiff explained
to Dr. Spencer that she was applying for SSI because she had "a hard time holding a job"
due to her anxiety and PTSD. (Id. at 279.) She had been diagnosed in 1988 with PTSD
"'Rule out" in a medical record means that the disorder is suspected, but not confirmed –
i.e., there is evidence that the criteria for a diagnosis may be met, but more information is needed
in order to rule it out." Byes v. Astrue, 687 F.3d 913, 916 n.3 (8th Cir. 2012).
- 25 -
caused by "a lengthy childhood history of sexual abuse . . . ." (Id.) Also, when an adult,
she had witnessed a murder. (Id.) She had recently decided to let her children be adopted.
(Id.) She was easily startled and was depressed, having had to go through her children's
things prior to a move. (Id. at 280.) She was tired and, occasionally, felt hopeless and
helpless. (Id.) She was not on any psychotropic medication because she was not on
Medicaid and could not afford to see a psychiatrist. (Id.) She had been suffering from
insomnia. (Id.) She had been diagnosed in 2003 with hepatitis C. (Id.) Because of her
pain, she could not stand for long. (Id.) Because of a head injury, she had some memory
and concentration problems. (Id.) She reported that she had first been sexually abused by
her baby sitter's boyfriend and later by her uncle and several of her step-father's friends.
(Id.) When she told her mother about the abuse, her mother blamed her. (Id.) From the
ages of six to seventeen, she was sexually abused. (Id.) Before entering high school, she
attended sixteen different schools. (Id.) She was married, but had not seen her husband for
ten years. (Id.) She had four children, ranging in ages from six to twenty-two. (Id.) She
had recently terminated her parental rights to the two youngest children. (Id.) Currently,
she was attending college, although she admittedly had trouble paying attention and
focusing. (Id. at 281.) Her longest period of employment was for one year. (Id.) She had
never been fired and always got along well with her coworkers and supervisors. (Id.)
Plaintiff further reported that she started drinking regularly at sixteen and that alcohol had
been put in her bottle to help her sleep. (Id.) She had been sober for the past thirteen
months. (Id.) Around the same time as when she stopped drinking, she stopped using
- 26 -
methamphetamine intravenously. (Id.) She was on parole. (Id.) Plaintiff did most of her
household chores by herself. (Id.)
On examination, Plaintiff was appropriately dressed, was in no acute physical
distress, was friendly and cooperative, and had intact insight and judgment. (Id. at 282.)
She had "a mildly dysphoric affect." (Id.) Her flow of thought was without loose
associations or circumstantial or tangential thinking. (Id.) Her thought content was positive
for depression. (Id.) She appeared to be of average intelligence. (Id.) Dr. Spencer
diagnosed Plaintiff with PTSD; major depressive disorder, recurrent, moderate; rule out
generalized anxiety disorder; and alcohol and methamphetamine dependence by history.
(Id.) Her GAF was 50-55. (Id.) He recommended that she follow up with a psychiatrist
for treatment of her mood and anxiety disorders. (Id. at 283.)
Pursuant to Plaintiff's current SSI application, she was again evaluated by Dr.
Spencer in November 2009. (Id. at 402-06.) Plaintiff's primary complaints were PTSD,
with which she had been first diagnosed twenty years earlier, generalized anxiety, and
"'health issues.'" (Id. at 402.) He summarized her history as she reported it, describing it
as "very convoluted." (Id.) This history includes being first sexually assaulted when she
was four by an uncle, next by a babysitter's boyfriend for several years, and then by an
owner of a tattoo parlor. (Id.) This last person also prostituted her with soldiers. (Id.) A
young cousin died in a fire set by Plaintiff's boyfriend. (Id.) She had been in and out of
prison between 2003 and August 2009. (Id.) She reported that she could not work because
of anxiety. (Id.) She has panic attacks when she leaves her home, which was currently in
- 27 -
a hotel or with her mother because she was without a permanent residence. (Id. at 402,
403.) She "self-medicated with alcohol," but had not had a drink for two months. (Id.) She
was angry and depressed. (Id. at 403.) Her physician, Dr. Parks, prescribed her Xanax and
Percocet. (Id.) She did not consistently seek treatment by a psychiatrist or psychologist.
(Id.) She complained of hip pain and discomfort, but walked with a normal gait. (Id. at
403, 404.) She had recently been diagnosed with hyperthyroidism. (Id. at 403.) After
undergoing a CT scan of her head, she had been informed that "'there was shrinkage in [her]
frontal lobe.'" (Id.) Because of anxiety and depression, she had quit her last job that June
after working as a landscaper and housekeeper for three months. (Id. at 404.) Her longest
period of employment was three years. (Id.) She had no problem getting along with people
in the workplace. (Id.) On examination, her speech was flat, her mood was mildly
dysphoric and irritable, her flow of thought was intact and organized, and her insight and
judgment were questionable. (Id. at 404-05.) Dr. Spencer diagnosed her with chronic
PTSD; recurrent, moderate major depressive disorder; generalized anxiety disorder; alcohol
dependence, in early remission by her account; and a GAF of 45 to 50.17 (Id. at 406.) He
opined that her mental illness interfered with "her ability to engage in employment suitable
for her age, training, experience, and/or education." (Id.) This "disability could exceed 12
months although with appropriate treatment, compliance, and continued sobriety, prognosis
may improve." (Id.)
A GAF score between 41 and 50 is indicative of "[s]erious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to keep a job)." DSM-IV-TR at 34
- 28 -
Two months earlier, in September 2009, assessments of Plaintiff's mental functioning
abilities and limitations were completed by Glen D. Frisch, M.D., a non-examining medical
consultant (Id. at 381-94.) On a Psychiatric Review Technique form (PRTF), Dr. Frisch
assessed Plaintiff as having an anxiety-related disorder, i.e., anxiety/panic disorder, and
substance abuse disorders, i.e., a history of alcohol and amphetamine dependence. (Id. at
384, 387-88, 390.) These disorders resulted in mild restrictions of activities of daily living,
moderate difficulties in maintaining social functioning, and moderate difficulties in
maintaining concentration, persistence, or pace. (Id. at 392.) They did not cause any
repeated episodes of decompensation of extended duration. (Id.)
On a Mental Residual Functional Capacity Assessment, Dr. Frisch assessed Plaintiff
as being moderately limited in one of the three abilities in the area of understanding and
memory, i.e., understanding and remembering detailed instructions, and not significantly
limited in the other two. (Id. at 381.) In the area of sustained concentration and
persistence, she was moderately limited in four of eight listed abilities, i.e., carrying out
detailed instructions; maintaining attention and concentration for extended periods; working
in coordination with or proximity to others without being distracted by them; and
completing a normal workday and workweek without interruptions from psychologicallybased symptoms. (Id. at 381-82.) She was not significantly limited in the remaining four
abilities. (Id.) In the area of social interaction, Plaintiff was moderately limited in two of
the five abilities, i.e., interacting appropriately with the general public and accepting
instructions and responding appropriately to criticism from supervisors, and was not
- 29 -
significantly limited in the remaining three. (Id. at 382.) In the area of adaptation, Plaintiff
was again moderately limited in two abilities, i.e., responding appropriately to changes in
the work setting and traveling in unfamiliar places or using public transportation. (Id.) She
was not significantly in the remaining two abilities. (Id.)
In May 2011, a treating physician of Plaintiff's18 completed a Medical Source
Statement – Mental form on her behalf. (Id. at 423-24.) He rated Plaintiff as moderately
limited in all three abilities listed for the category of understanding and memory. (Id. at
423.) She was markedly limited in three of the eight abilities listed for the category of
sustained concentration and persistence, i.e., her ability to maintain attention and
concentration for extended periods; to work in coordination with or proximity to others
without being distracted by them; and to complete a normal workday and workweek without
interruption from psychologically-based symptoms. (Id. at 423-24.) She was moderately
limited in the remaining five abilities. (Id.) She was markedly limited in three of the five
abilities listed for the category of social interaction, i.e., her ability to interact appropriately
with the general public; to get along with coworkers or peers without distracting them or
exhibiting behavioral extremes; and to maintain socially appropriate behavior and to adhere
to basic standards of neatness and cleanliness. (Id. at 424.) She was moderately limited in
the remaining two abilities. (Id.) In the category of adaptation, Plaintiff was markedly
limited in two abilities – the ability to respond appropriately to changes in the work setting
The signature is illegible; however, the ALJ refers, without contradiction, to the statement
being that of Dr. Kim.
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and the ability to set realistic goals or make plans independently of others – and was
moderately limited in the remaining two abilities. (Id.) The form provided that the
assessment of Plaintiff's mental abilities was to be made as if Plaintiff had "stopped doing
drugs and/or alcohol." (Id. at 423.)
The ALJ's Decision
Analyzing Plaintiff's application under the Commissioner's five-step evaluation
process, the ALJ first noted that Plaintiff had not engaged in substantial gainful activity
after the filing date of her SSI application. (Id. at 11.) She next found that Plaintiff had
severe impairments of back pain, hepatitis C, thyroid cancer in remission, depression,
anxiety, and PTSD. (Id.) Her right hand impairment was not severe. (Id.) The severe
impairments Plaintiff did have did not, singly or in combination, meet or equal an
impairment of listing-level severity. (Id.) Specifically, her mental impairments resulted in
only mild restrictions in her activities of daily living, moderate difficulties in social
functioning, and moderate difficulties in concentration, persistence, or pace. (Id. at 12.)
For instance, Plaintiff did her laundry, prepared her own meals, washed dishes, walked,
fished, jogged, and spent time with others. (Id.) There were "multiple" references in the
record to Plaintiff being cooperative and pleasant. (Id.) Although Plaintiff testified that she
had difficulties concentrating, remembering, and completing tasks, "memory skills testing
demonstrated an ability to recall three out of three object [sic] immediately and two out of
three objects after five minutes." (Id.) "[S]he performed serial threes, spelled 'world'
backwards, and repeated six digits forward." (Id.) She could do simple math calculations.
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(Id.) And, she had not experienced any episodes of decompensation of extended duration.
The ALJ concluded that Plaintiff has the residual functional capacity to perform light
work with additional limitations of being restricted to simple tasks with routine supervision,
no contact with the public, and no work involving customer service. (Id. at 13.) Plaintiff
was "able to interact appropriately with supervisors and coworkers for superficial work
purposes" and "to adapt to work situations." (Id.) In reaching this determination, the ALJ
evaluated her credibility, finding that her daily activities – including jogging, fishing,
walking, and shopping – belied her allegations of disabling difficulties in such exertional
activities as standing, lifting, walking, and sitting and in such mental activities as
remembering and concentrating. (Id. at 13-14.) Another factor detracting from her
credibility was her felony convictions for tampering and forgery. (Id. at 14.) Also, her
allegations were not supported by the objective medical evidence, or by her failure to show
for doctor appointments. (Id. at 14-15.) Noting that Plaintiff had a history of substance
abuse, the ALJ concluded that the abuse was "not a contributing factor material to the
determination of disability." (Id. at 15-16.) The ALJ considered, but gave little weight to
the opinions of Drs. Spencer and Kim. (Id. at 16.) The function report completed by
Plaintiff's friend was supportive of Plaintiff's allegations, but did not establish that she was
disabled. (Id.) The opinions of Dr. Frisch were both internally consistent and consistent
with the record. (Id.)
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Plaintiff had no past relevant work. (Id.) With her age, education, and RFC, there
were, however, jobs within the national economy she could perform, as describe by the VE.
(Id. at 17-18.) Consequently, Plaintiff was not disabled within the meaning of the Act. (Id.
Under the Act, the Commissioner shall find a person disabled "if [s]he is unable to
engage in any substantial activity by reason of any medically determinable physical or
mental impairment which . . . has lasted or can be expected to last for a continuous period
of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). The impairment suffered
must be "of such severity that [the claimant] is not only unable to do [her] previous work
but cannot, considering [her] age, education, and work experience, engage in any other kind
of substantial gainful work which exists in the national economy, regardless of whether . . .
[s]he would be hired if [s]he applied for work." 42 U.S.C. § 1382c(a)(3)(B).
The Commissioner has established a five-step process for determining whether a
person is disabled. See 20 C.F.R. § 416.920; Moore v. Astrue, 572 F.3d 520, 523 (8th Cir.
2009); Ramirez v. Barnhart, 292 F.3d 576, 580 (8th Cir. 2002); Pearsall v. Massanari,
274 F.3d 1211, 1217 (8th Cir. 2002). "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). First, the claimant cannot be presently engaged in "substantial gainful activity." See
20 C.F.R. § 416.920(a)(4)(i). Second, the claimant must have a severe impairment. See 20
C.F.R. § 416.920(a)(4)(ii). A severe impairment is "any impairment or combination of
- 33 -
impairments which significantly limits [claimant's] physical or mental ability to do basic
work activities . . . ." 20 C.F.R. § 416.920(c).
At the third step in the sequential evaluation process, the ALJ must determine
whether the claimant has a severe impairment which meets or equals one of the impairments
listed in the regulations and whether such impairment meets the twelve-month durational
requirement. See 20 C.F.R. § 416.920(a)(4)(iii) and Part 404, Subpart P, Appendix 1. If
the claimant meets these requirements, she is presumed to be disabled and is entitled to
benefits. Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994).
"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 not the ability merely to lift weights occasionally in a doctor's
office; it is the ability to perform the requisite physical acts day in and day out, in the
sometimes competitive and stressful conditions in which real people work in the real
world.'" Ingram v. Chater, 107 F.3d 598, 604 (8th Cir. 1997) (quoting McCoy v.
Schweiker, 683 F.2d 1138, 1147 (8th Cir. 1982) (en banc)). "'[A] claimant's RFC [is] based
on all relevant evidence, including the medical records, observations of treating physicians
and others, and an individual's own description of [her] limitations.'" Moore, 572 F.3d at
523 (quoting Lacroix, 465 F.3d at 887).
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, 274 F.3d at 1217. This
evaluation requires that the ALJ consider "'(1) the claimant's daily activities; (2) the
- 34 -
duration, intensity, and frequency of 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) (quoting
Moore, 572 F.3d at 524). "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)).
Moreover, an ALJ is not required to methodically discuss each of the relevant credibility
factors, "'so long as he acknowledge[s] and examine[s] those considerations before
discounting a claimant's subjective complaints.'" Renstrom v. Astrue, 680 F.3d 1057, 1067
(8th Cir. 2012) (quoting Partee v. Astrue, 638 F.3d 860, 865 (8th Cir. 2011)).
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. § 416.920(a)(4)(iv). Additionally, "[a]n ALJ
may find the claimant able to perform past relevant work if the claimant retains the ability
to perform the functional requirements of the job as she actually performed it or as
generally required by employers in the national economy." Samons v. Astrue, 497 F.3d
813, 821 (8th Cir. 2007). The burden at step four remains with the claimant. 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).
- 35 -
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. Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009); Banks v. Massanari,
258 F.3d 820, 824 (8th Cir. 2001). The Commissioner may meet her burden by eliciting
testimony by a VE, Pearsall, 274 F.3d at 1219, based on hypothetical questions that "'set
forth impairments supported by substantial evidence on the record and accepted as true and
capture the concrete consequences of those impairments,'" Jones v. Astrue, 619 F.3d 963,
972 (8th Cir. 2010) (quoting Hiller v. S.S.A., 486 F.3d 359, 365 (8th Cir. 2007)).
If the claimant is prevented by her impairment from doing any other work, the ALJ
is to find the claimant to be disabled. See 20 C.F.R. § 416.920(a)(4)(v).
The ALJ's decision – adopted by the Commissioner when the Appeals Council denied
review – whether a person is disabled under the standards set forth above is conclusive upon
this Court "'if it is supported by substantial evidence on the record as a whole.'" Wiese v.
Astrue, 552 F.3d 728, 730 (8th Cir. 2009) (quoting Finch v. Astrue, 547 F.3d 933, 935 (8th
Cir. 2008)). "'Substantial evidence is relevant evidence that a reasonable mind would accept
as adequate to support the Commissioner's conclusion.'" Perkins v. Astrue, 648 F.3d 892,
897 (8th Cir. 2011) (quoting Medhaug v. Astrue, 578 F.3d 805, 813 (8th Cir. 2009)). When
reviewing the record, however, the Court '"must consider evidence that both supports and
detracts from the ALJ's decision, but [may not] reverse an administration decision simply
because some evidence may support the opposite conclusion.'" Id. (quoting Medhaug, 578
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F.3d at 813). "'If, after reviewing the record, the [C]ourt finds it is possible to draw two
inconsistent positions from the evidence and one of those positions represents the ALJ's
findings, the [C]ourt must affirm the ALJ's decision.'" Id. (quoting Medhaug, 578 F.3d at
897). See also Owen v. Astrue, 551 F.3d 792, 798 (8th Cir. 2008) (the ALJ's denial of
benefits is not to be reversed "so long as the ALJ's decision falls within the available zone
of choice") (internal quotations omitted).
Plaintiff argues that the Commissioner's adverse decision is not supported by
substantial evidence on the record as a whole. Specifically, the ALJ erred (1) when
determining her RFC because she (a) relied on her own opinion rather than any medical
evidence, (b) failed to define Plaintiff's impairments, specifically her back impairment, and
(c) found no workplace restrictions due to Plaintiff's neck and carpal tunnel problems; (2) by
improperly rejecting the opinions of Drs. Kim and Spencer; (3) by failing to develop the
record; and (4) when rejecting her testimony. The Commissioner disagrees.
"The RFC 'is a function-by-function assessment based upon all of the relevant evidence
of an individual's ability to do work-related activities,' despite his or her physical or mental
limitations." Roberson v. Astrue, 481 F.3d 1020, 1023 (8th Cir. 2007) (quoting SSR 96-8p,
1996 WL 374184, at *3 (July 2, 1996)); accord Masterson v. Barnhart, 363 F.3d 731, 737
(8th Cir. 2004); Depover v. Barnhart, 349 F.3d 563, 567 (8th Cir. 2003). "When determining
a claimant's RFC, the ALJ must consider all relevant evidence, including the claimant's own
description of her or his limitations, as well as medical records, and observations of treating
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physicians and others." Roberson, 481 F.3d at 1023. See also SSR 96-8p, 1996 WL 374184
at *5 (listing factors to be considered when assessing a claimant's RFC, including, among
other things, medical history, medical signs and laboratory findings, effects of treatment,
medical source statements, recorded observations, and "effects of symptoms . . . that are
reasonably attributed to a medically determinable impairment").
In the instant case, the ALJ concluded that Plaintiff has the residual functional
capacity to perform light work with additional limitations of being restricted to simple tasks
with routine supervision, no contact with the public, and no work involving customer service.
(R. at 13.) The ALJ further concluded that Plaintiff is also "able to interact appropriately
with supervisors and coworkers for superficial work purposes" and "to adapt to work
situations." (Id.) There is no evidence to support this latter finding.19
Specifically, there is no evidence that Plaintiff has been able to interact appropriately
with either supervisors or coworkers on a sustained basis. See McCoy v. Astrue, 648 F.3d
605, 617 (8th Cir. 2011) (RFC should include those capacities that claimants can
demonstrate on sustained basis). Since her alleged disability onset date of May 2006, she
has been in and out of prison on parole violations, including failing to report to her parole
officer, has not been at one address for any length of time, and has not maintained any
Plaintiff also challenges the ALJ's reference to her back pain without specifying the
underlying condition and the ALJ's failure to recognize her neck and hand impairments as severe.
These challenges are unavailing. As noted by the Commissioner, it is not the diagnosis of a
condition that is determinative; rather, it is the limitations resulting from the underlying condition.
See Collins ex rel. Williams v. Barnhart, 335 F.3d 726, 730-31 (8th Cir. 2003). The limitations
imposed by Plaintiff's back pain and by her neck and hand impairments depended on her credibility,
which is discussed below.
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relationship, with family, friends, or authority figures, for any length of time. The record
shows that her longest period of employment is three to four weeks,20 and this occurred nine
years before her alleged disability onset date. Although the ALJ noted that Plaintiff reported
that she had no significant difficulties in self-care, she disregarded Plaintiff's
contemporaneous report that she did have difficulties in cooperating, coping with conflict,
and interacting with others. The ALJ emphasized that Plaintiff jogged, fished, and exercised,
although these activities were listed as ones that Plaintiff used to engage in prior to her
impairments. The ALJ also disregarded Plaintiff's report that she does not handle changes
in routine well and has behavioral and cognitive problems in adjusting to change.
The Court notes that the lack of support in the record for the ALJ's inclusion in
Plaintiff's RFC of an ability to interact appropriately with supervisors and coworkers when
necessary for work and to adapt to work situations does not equate with a finding that
Plaintiff does not have either ability or, if she is lacking both, that the absence is not due to
substance abuse. "[A]n individual shall not be considered disabled for purposes of [Title
XVI] if alcoholism or drug addiction would (but for this subparagraph) be a contributing
factor material to the Commissioner's determination that the individual is disabled." 42
U.S.C. § 1382c(a)(3)(J). "[A] claimant has the burden to prove that alcoholism or drug
addiction is not a contributing factor." Kluesner v. Astrue, 607 F.3d 533, 537 (8th Cir.
2010); accord Pettit v. Apfel, 218 F.3d 901, 903 (8th Cir. 2000). "The 'key factor' in
Plaintiff is inconsistent in her description of the longest period she has been employed.
This inconsistency, and others, are addressed below.
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determining whether drug addiction or alcoholism is material to a determination of disability
is whether the claimant would still be found disabled if he or she stopped using drugs or
alcohol." Id. "When a claimant is actively abusing drugs [or alcohol], th[e] inquiry is
necessarily hypothetical, and thus more difficult than if the claimant had stopped."
Kluesner, 607 F.3d at 537. See e.g. Vester v. Barnhart, 416 F.3d 886, 890 (8th Cir. 2005)
(finding ALJ properly denied benefits to claimant who was infrequently sober but who,
during those sober periods, demonstrated an ability to work absent the alcohol abuse). See
also 20 C.F.R. § 416.935(b) (outlining process to be followed when there is medical
evidence of drug addiction or alcoholism).
The record before the ALJ is replete with references to Plaintiff's alcohol and drug
abuse. Periods of incarceration were regularly followed by relapses on release. Denials of
use of alcohol or drugs were followed by visits to emergency rooms for being found
unconscious after drinking or for treatment of an infection caused by injecting heroin.
Plaintiff denied using alcohol or drugs when her Pathways counselor asked about why her
eyes were droopy and her words slurred; three months later, she took a thirty-day supply of
Xanax and Ambien in six days. She denied using drugs, yet was regularly prescribed
methadone, used to "reduce[ ] to withdrawal symptoms in people addicted to heroin or other
narcotic drugs." Methadone, http://www.drugs.com/search.php?searchterm=methadone (last
visited March 19, 2013).
The evidence in the record that Plaintiff had not abstained from drugs and alcohol is
also relevant to the weight to be given the opinions of Dr. Kim, Plaintiff's treating physician
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who prescribed methadone, and of Dr. Spencer, the consulting physician who was told by
Plaintiff that she "self-medicated" with alcohol but had not had a drink for two months, see
Record at 402-03, but had not been told about any drug use. See Wildman v. Astrue, 596
F.3d 959, 964 (8th Cir. 2010); Owen, 551 F.3d at 800 ("[A] claimant's noncompliance can
constitute evidence that is inconsistent with a treating physician's medical opinion and,
therefore, can be considered in determining whether to give that opinion controlling
In addition to challenging the ALJ's RFC determination, Plaintiff takes issue with her
rejection of Plaintiff's testimony as not being fully credible.
"'If an ALJ explicitly discredits the claimant's testimony and gives good reason for
doing so, [the Court] will normally defer to the ALJ's credibility determination.'" Renstrom,
680 F.3d at 1065 (quoting Juszcyzk v. Astrue, 542 F.3d 626, 632 (8th Cir. 2008)). One
reason cited by the ALJ in the instant case is not supported by the record. Specifically, the
ALJ cited daily activities of jogging, fishing, walking, and shopping as being inconsistent
with Plaintiff's allegations of disabling difficulties. These activities, however, were listed
as ones that Plaintiff engaged in before her impairments became disabling.
Another reason cited by the ALJ was the lack of supporting objective medical
evidence. Although "'[a]n ALJ may not discount a claimant's subjective complaints solely
because the objective medical evidence does not fully support them," Renstrom, 680 F.3d
at 1066 (quoting Wiese, 552 F.3d at 733), the absence of objective medical evidence to
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support a claimant's complaints is a proper consideration when assessing that claimant's
credibility, id. at 1065. There is such absence in the instant case.
A third reason is Plaintiff's failure to show for doctor appointments. This also is a
proper consideration. See Id. at 1067. The Court notes, however, that Social Security
Ruling 96-7 provides that an ALJ "must not draw any inferences about an individual's
symptoms and their functional effects from a failure to seek or pursue regular medical
treatment without first considering any explanations that the individual may provide, or other
information in the case record, that may explain the infrequent or irregular medical visits or
failure to seek medical treatment." SSR 97-7p, 1996 WL 374186, at *7 (July 2, 1996). In
Pate-Fires, 564 F.3d at 945 (8th Cir. 2009), the court held that the claimant's failure to take
her psychiatric medication could be caused by her schizoaffective disorder and that,
consequently, the ALJ had erred by finding that the noncompliance was not justified. The
court later held in Wildman, 596 F.3d at 966, that the Pate-Fires holding did not apply to
a claimant who suffered from depression and had failed to follow a prescribed diet.
Plaintiff's failure to follow a recommended course of treatment, including recovery programs
for substance abuse, could be due to that abuse, to incarceration, or to a lack of motivation.
On remand, the ALJ might solicit an explanation from Plaintiff for her failure.21
Other factors that detract from Plaintiff's credibility are her poor work record. See
Pearsall, 274 F.3d at 1218 ("A lack of work history may indicate a lack of motivation to
The Court employs the permissive "might" because other considerations support the ALJ's
adverse credibility finding and any error in not soliciting an explanation is harmless.
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work rather than a lack of ability."); Dipple v. Astrue, 601 F.3d 833, 837 (8th Cir. 2010)
(listing a claimant's work record as consideration when evaluating her credibility).
Also detracting for Plaintiff's credibility are the inconsistencies in the record. "An
ALJ may discount a claimant's subjective complaints if there are inconsistencies in the record
as a whole." Van Vickle v. Astrue, 539 F.3d 825, 828 (8th Cir. 2008); accord Halverson
v. Astrue, 600 F.3d 922, 932 (8th Cir. 2010). In the instant case, such inconsistencies
include Plaintiff's differing accounts of how much education she has, whether she was in
special education classes, how long her maximum period of employment was, by whom and
when she was first sexually abused, and for long she had not abused drugs or alcohol. These
inconsistencies are of events that do not change over time. For instance, she either had three
years of college or she did not.
The Court has considered other challenges by the Plaintiff to the ALJ's decision and
finds such to be without merit.
For the foregoing reasons, the case shall be reversed and remanded for the ALJ to
reexamine Plaintiff's mental residual functional capacities and, if necessary, the extent to
which any diminished capacity is attributable to drug or alcohol abuse. See e.g. Watkins v.
Astrue, 414 Fed.Appx. 894, 897 (8th Cir. 2011) (reversing and remanding case for
determination of whether claimant's mental problems were linked to his abuse of illegal
drugs); Conklin v. Astrue, 360 Fed.Appx. 704, 707-08 (8th Cir. 2010) (same). Accordingly,
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IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED
and this case is REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for the further,
limited proceedings as set forth above.
An appropriate Judgment shall accompany this Memorandum and Order.
/s/ Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE
Dated this 25th day of March, 2013.
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