Brown v. Social Security Administration

Filing 22

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the relief sought by plaintiff in her brief in support of complaint [Doc. # 15 ] is denied. A separate Judgment in accordance with this Memorandum and Order will be entered this same date. Signed by District Judge Carol E. Jackson on 1/30/13. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
CYNTHIA BROWN,
Plaintiff,
vs.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.

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Case No. 4:12-CV-468 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court for review of an adverse ruling by the Social
Security Administration.
I. Procedural History
On July 11, 2008,1 plaintiff Cynthia Brown filed an application for a period of
disability and disability benefits under Title II of the Social Security Act, 42 U.S.C. §§
401 et. seq., with an alleged onset date of May 23, 2008.2 (Tr. 126-133). After
plaintiff’s application was denied on initial consideration (Tr. 77-81), she requested a
hearing from an Administrative Law Judge (ALJ). See Tr. 85-92 (acknowledging
request for hearing).
Plaintiff and counsel appeared for a hearing on November 12, 2009 (Tr. 30-74).
The ALJ issued a decision on August 5, 2010 denying plaintiff’s application (Tr. 10-24),
and the Appeals Council denied plaintiff’s request for review on January 24, 2012. (Tr.
1-6). Accordingly, the ALJ’s decision stands as the Commissioner’s final decision.

1

The ALJ Decision states that July 3, 2008 was the date plaintiff filed her Title
II application. (Tr. 10). The Application Summary for Disability Insurance Benefits
reflects July 11, 2008 as the date of filing. (Tr. 126-133).
2

Plaintiff amended her alleged onset date to July 1, 2008. (Tr. 10).

II. Evidence Before the ALJ
A. Disability Application Documents
In her Disability Report (Tr. 149-168), plaintiff listed her disabling conditions as
osteoarthritis, bulging disk lower back, intracranial hypertension, depression, double
knee surgery, and stasis dermatitis. She stated that she has difficulty standing,
walking, sitting, lifting, getting up from a seated position, and climbing stairs or curbs.
She explained that she had trouble concentrating at work and missed many days as
a result of the pain and swelling. She wrote that every two to three weeks she suffers
from a flare-up that prevents her from being able to walk for “days.” She stated that
her depression is mostly stable, but has sensed herself “slipping some.” Plaintiff listed
past employment as dental assistant.
In her Function Report (Tr. 182-192), plaintiff stated that her daily activities
include watching television, working on puzzles, reading, shopping for groceries once
a week for no longer than an hour, minimal housework, and making dinner a couple
times per week. She wrote that she cares for her children by making meals and helping
them with their homework. However, she stated that her husband and children “help
with everything” and “do most things for themselves.” She claims she is no longer able
to do laundry, housework, or yardwork, but can fold clothes, do dishes, drive a car, pay
bills, handle a savings account, count change, and use a checkbook. She states that
it is painful for her to put pants on, that it is difficult for her to get on and off the toilet,
and that she does not shower often because it wears her out. She claims that her pain
fluctuates in intensity and that some days she needs to rest after walking four steps.
B. Hearing on November 12, 2009

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At the time of the hearing, plaintiff was 39 years old, married, and lived in a
house with her husband, 16-year-old son, and 12-year-old daughter. (Tr. 36-38).
Plaintiff asserted that she was 5'4" tall and weighed 300 pounds. (Tr. 38). Plaintiff is
a high school graduate who testified that she has no trouble performing simple
arithmetic, writing, or using a computer. (Tr. 38-39).
Plaintiff stated that she had been a dental assistant for twenty years at various
offices and that she last worked on May 23, 2008 as a “general chair side dental
assistant.” (Tr. 42-43). In this role plaintiff was qualified to place dental fillings, take
permanent impressions for dental appliances, and place retraction cords around gum
tissue. (Tr. 43-44). Her supervisor also required her to do housekeeping tasks. (Tr. 4748). Plaintiff further testified to working in a retail store from 1994 to 1995, where she
stocked items, hung clothes, assisted ladies with dressing, and performed minimal
cashier work. (Tr. 46).
Plaintiff testified that she chooses to use a cane when in public, but sometimes
opts for a walker or wheelchair. She stated that she has osteoarthritis, which causes
her to have pain, weakness, and diminished strength in her knees. (Tr. 50). She
testified to undergoing surgery on both knees in August 2007 with no improvement
and denied receiving any recommendations about weight loss from her treating
physicians. (Tr. 50-51, 55). Plaintiff further asserted that she experiences pain in her
hips and back, has been seeing a pain management doctor, and is taking Percocet.3
(Tr. 51). She also stated that she suffers from depression and anxiety and that she

3

Percocet is a combination of oxycodone and acetaminophen. Ocycodone is an
opioid analgesic for relief of moderate to moderately severe pain. It can produce drug
dependence. See Phys. Desk. Ref. 1114 (60th ed. 2006).
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sees a psychiatrist. She believed Cymbalta4 helps decrease the depression. She also
claimed to suffer from episodes of headaches, occurring every month or two, that can
last up to two weeks and cause her to be “non-functioning.” Plaintiff treats the
headaches with over-the-counter Advil. (Tr. 54-55, 66).
Plaintiff testified that she no longer feels that she can engage in the same
activities that she originally listed in her Disability and Function Reports. She explained
that she now spends 50 percent of her day lying down, no longer provides much help
with her children’s homework or with grocery shopping, and has stopped doing laundry
and dishes. (Tr. 56). She does not vacuum or perform any yard work. (Tr. 59).
However, she stated that she continues to drive once or twice a week and cooks simple
meals. (Tr. 57-59). She further asserted that she cannot stand or walk for more than
five minutes, cannot sit for more than 30 minutes, and does not lift anything heavier
than a gallon of milk. (Tr. 59-60). She explained that she has side effects from her
medications, which include sleepiness, constipation, irritability, dizziness, and
headaches. (Tr. 57).
Plaintiff testified that walking, standing, bending, stooping, and sitting aggravate
her knee pain and that her medications only tend to “take the edge off.” (Tr. 61-62).
She testified to swelling in her lower extremities that she attributes to walking or
standing and that requires her to elevate her legs on a daily basis. (Tr. 62-63). Plaintiff
explained that her depression has made her a “homebody” in that she does not want
to be around many people and that she is typically irritable. (Tr. 65-66).

4

Cymbalta, or Duloxetine, is used to treat depression and generalized anxiety
disorder; pain and tingling caused by diabetic neuropathy and fibromyalgia.
www.nlm.nih.gov/medlineplus/druginfo/meds (last visited on Oct. 27, 2009).
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Delores E. Gonzalez, a vocational expert, provided testimony regarding plaintiff’s
past work and current employment opportunities. (Tr. 67-74). The ALJ asked Ms.
Gonzalez to list plaintiff’s vocational history and classify each position. Ms. Gonzalez
listed dental assistant as light, semi-skilled; office cleaner as heavy, unskilled; and
retail sales clerk as light, semi-skilled. (Tr. 69).
The ALJ asked about the available employment opportunities for an individual
with plaintiff’s education, training, and work experience, requiring a light limitation on
exertion, a sit stand option, and the ability to change positions frequently, who can
climb stairs and ramps occasionally, can stoop, kneel, and crouch occasionally, and
who cannot climb ropes, ladders, or scaffolds or crawl. (Tr. 69-70). Ms. Gonzalez
opined that such an individual would be unable to perform plaintiff’s past employment,
but could work as a cashier (of which there are 81,800 jobs within the state of
Missouri) or a ticket taker (of which there are 2,930 jobs within the state of Missouri).
(Tr. 70).
The ALJ then asked about the available employment opportunities for an
individual with the same skills and abilities as in the prior hypothetical, but with a
sedentary limitation instead of a light limitation. Ms. Gonzalez testified that such an
individual would be able to work as an information clerk (of which there are 17,640
jobs within the state of Missouri), call out operator (of which there are 1,190 jobs
within the state of Missouri), and surveillance system monitor (of which there are
2,020 jobs within the state of Missouri). (Tr. 70-71).
The ALJ then asked about the available employment opportunities for an
individual with the same skills, abilities, and limitations as the second hypothetical, but
with an added requirement that includes the employer providing two additional breaks,

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in conjunction with the two normally provided breaks, and a one-hour lunch. The
individual would also require three days off every two weeks. Ms. Gonzalez testified
that such an individual would be unable to perform any of the jobs previously listed.
(Tr. 71).
After the ALJ concluded his questioning, plaintiff’s attorney asked Ms. Gonzalez
whether an individual who requires rest for four hours out of an eight-hour period
would be able to hold any of the jobs previously listed. Ms. Gonzalez testified that such
an individual would be unable to maintain employment at a competitive rate. Plaintiff’s
attorney then asked whether an individual who has no useful ability to deal with work
stresses and who has a seriously limited ability to deal with the public, use judgment,
interact with supervisors, function independently, and maintain attention and
concentration would be able to hold any of the jobs previously listed. Ms. Gonzalez
answered in the negative. (Tr. 72).
C. Medical Evidence
On May 18, 2007, plaintiff saw Jennifer C. Carpenter, M.D. with complaints of
knee pain. AP, lateral, and tunnel views were obtained on the left knee, which revealed
no fracture, dislocation or abnormal bone production. (Tr. 295-297). On May 23, 2007,
plaintiff went to the Orthopedic Center of St. Louis to see Mark D. Miller, M.D. Plaintiff
reported that she had been suffering from bilateral knee pain for 10 to 15 years with
intermittent swelling. Dr. Miller wrote that plaintiff did not seem to be in distress, was
ambulating without a noticeable antalgic gait, and that her range of motion was within
normal limits in both knees. He also noted mild crepitus. (Tr. 344-345). Dr. Miller
ordered an MRI of the right knee which revealed a small horizontal tear in the body of
the medial meniscus, small cartilaginous erosions in the medial compartment, and

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patellar articulation. (Tr. 231). On May 31 and August 8, 2007, plaintiff returned to Dr.
Miller to discuss the options of “living with [the pain] versus injection protocols versus
diagnostic arthroscopy.” Plaintiff elected surgery. (Tr. 340-343).
On August 24, 2007, Dr. Miller performed bilateral knee arthoscopic evaluations.
In both left and right knees, Dr. Miller successfully completed a partial medial
meniscectomy, a partial lateral meniscectomy, a chondroplasty of the medial demoral
condyle and lateral facet patella, a syncovectomy, and an arthoscopic lateral release.
(Tr. 234-239). Plaintiff returned to Dr. Miller for a two-week post operative visit on
September 6, 2007. Plaintiff stated that her right knee was “doing very well,” but she
was struggling with the left. Dr. Miller wrote that plaintiff’s “knees [were] actually doing
relatively well” and that he was “pleased with the lack of swelling and range of motion.”
(Tr. 339). On October 4, 2007, plaintiff had a six-week post operative visit in which Dr.
Miller wrote that she was progressing as expected, was undergoing some arthritic
changes in both knees that would likely lead to some residual symptoms, and that he
was optimistic that she would be able to return to work in two weeks. (Tr. 338).
Progress notes from plaintiff’s physical therapist, Rebecca DeMargel, reflect that
she attended all scheduled appointments except for one. (Tr. 381-388). On October
17, 2007, plaintiff reported that her knees had significantly improved over the prior two
weeks and that the intensity of her pain at rest was a 0 out of 10 and “stiff and achy”
at worst. Ms. DeMargel wrote that plaintiff demonstrated “significantly improved
functional mobility and strength,” but that the left knee weakness and pain with
functional activities remained. (Tr. 383, 388). On the same date plaintiff also returned
to Dr. Miller’s office. Dr. Miller wrote that he was “pleased with the outcome” of the
surgery and felt “like the vast majority of her preoperative pain [was] resolved.” Dr.

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Miller also noted that he discussed weight loss with plaintiff and that such an action
would be the “best option.” (Tr. 337). Plaintiff was again counseled about weight loss
on February 8, 2008 by Dr. Carpenter who recommended that she engage in sustained
exercise for at least 30 minutes 3 to 4 times a week. (Tr. 300).
On February 14, 2008, plaintiff underwent an ankle screen that revealed no
evidence of deep vein thrombosis of the bilateral lower extremity veins. (Tr. 288-289).
On February 20, 2008, plaintiff visited with Dr. Carpenter who prescribed her
hydrocodone and ultram for pain, discussed leg elevation and hose use, and again
counseled her on weight loss and exercise. (Tr. 308-309). On March 21, 2008, plaintiff
saw Dr. Carpenter for another appointment. Progress notes reflect that her knee pain
and medications remained same and that she was instructed to pay attention to her
diet. (Tr. 310-311).
On March 28, 2008, plaintiff went to the St. Louis Vascular Center to discuss her
bilateral lower extremity edema and venous stasis dermatitis. Plaintiff was given a
prescription for surgical stockings and was told to wear them daily. (Tr. 319-320). On
April 4, 2008, plaintiff underwent a venous color duplex scan in which all results came
back normal except for mild superficial venous incompetency of the right lower
extremity. (Tr. 322).
Plaintiff had her first consultation with Hugh Berry, M.D. at Pain Management
Services on May 30, 2008. Dr. Berry diagnosed her with osteoarthritis of the knees and
gave her trials of Lidoderm patches, Volaren gel, and Flector patches for the pain. He
wrote that she might require epidural steroid injections for her back pain despite her
reports of minimal problems. Dr. Berry also wrote that plaintiff did not suffer from

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fibromyalgia, but that her pain was likely a result of generalized spondylosis and
arthritis. (Tr. 360-363).
On June 4, 2008, plaintiff returned to Dr. Miller with complaints of escalated pain
and swelling, which she claimed developed after she returned to work. She stated that
her job required her to stand for 40 to 60 hours per week. Dr. Miller advised her to
continue seeing Dr. Berry for pain management and discussed the possibility of
viscosupplementation as a form of treatment.5 (Tr. 335-336).
On June 27, 2008, plaintiff returned to Dr. Berry and reported that her pain had
improved since her last visit. Plaintiff attributed her improvement to both a change in
her employment that required minimal weight bearing on her knees and her
participation in a pool exercise program. Dr. Berry reported that she had improved
range of motion of the left knee and much less tenderness. (Tr. 364-365).
On July 9, 2008, physical therapist John Teepe6 reported in a letter to Dr. Miller
that plaintiff exhibited functional range of motion and improved functional strength. Mr.
Teepe also relayed plaintiff’s comments that the stretching exercises helped her feel
better and that she felt stronger with the strengthening exercises. However, he noted
that she did not exhibit very good tolerance for the progression of her functional
exercises. (Tr. 371).

5

Viscosupplementation injects hyaluronic acid into the knee joint and acts as a
lubricant to enable bones to move smoothly over each other. This procedure is a
therapeutic option for individuals with osteoarthritis of the knee. American Academy
of Orthopaedic Surgeons, http://orthoinfo.aaos.org/topic.cfm?topic=a00217 (last
visited Nov. 29, 2012).
6

John Teepe replaced Rebecca DeMargel as plaintiff’s primary physical therapist.
(Tr. 371).
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On July 10, 2008, plaintiff had an initial consultation with Raziya Mallya, M.D. at
the St. Louis Behavioral Medicine Institute. Plaintiff stated that she “felt she had to
establish [a] relationship with a psychiatrist for her future need.” Dr. Mallya reported
that plaintiff had depressive disorder with a GAF of 60.7 Plaintiff was currently taking
Wellbutrin8 but they discussed the possibility of switching her to Cymbalta.9 Plaintiff
saw Dr. Mallya one month later on August 7, 2008. Treatment notes state that
plaintiff’s “moods [were] fairly stable.” (Tr. 519).
On August 9, 2008, plaintiff sought treatment at the Emergency Department at
St. Luke’s Hospital for gait difficulty and an inability to ambulate. Plaintiff stated that
she had “twisted her left knee” while walking one week earlier. A four-view x-ray
reflected mild osteoarthritis with no evidence of a fracture, dislocation or destructive
bone lesion. (Tr. 434-440).
On August 11, 2008, plaintiff returned to Dr. Miller. Contrary to the August 9
hospital records which reflect that she “twisted her left knee,” Dr. Miller’s report states
that plaintiff was “simply walking” with “no twist, no falls, nothing,” just “an immediate

7

The GAF is determined on a scale of 1 to 100 and reflects the clinician’s
judgment of an individual’s overall level of functioning, taking into consideration
psychological, social, and occupational functioning. Impairment in functioning due to
physical or environmental limitations are not considered. American Psychiatric
Association, Diagnostic & Statistical Manual of Mental Disorders - Fourth Edition, Text
Revision 32-33 (4th ed. 2000). A GAF of 51-60 corresponds with “moderate symptoms
(e.g., flat affect and circumstantial speech, occasional panic attacks) OR difficulty in
social, occupational or school functioning (E.g., few friends, conflicts with peers or coworkers).” American Psychiatric Association, Id. at 34.
8

Wellbutrin, or Buproprion, is an antidepressant of the aminoketone class and
is indicated for treatment of major depressive disorder. See Phys. Desk Ref. 1648-49
(63rd ed. 2009).
9

Cymbalta, or Duloxetine, is used to treat depression and generalized anxiety
disorder. http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0000274/ (last visited Nov.
26, 2012).
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onset of pain.” Dr. Miller observed that plaintiff came into the office in a wheelchair,
but was sitting on the examination table when he entered the room. He wrote that she
did not appear to be in discomfort, had full terminal extension with perhaps 5 degrees
of loss, no effusion, and she could flex at least to 108 degrees without discomfort. Dr.
Miller further wrote that the “amount of pain that she [was] having fairly dramatically
exceeds the operative findings” and as a result did not recommend any additional
imaging studies or surgery. (Tr. 462-463).
On August 21, 2008, Suzanne Page, a medical consultant, filled out an RFC
assessment regarding plaintiff. The evaluation reflects the opinion that plaintiff can
occasionally lift and/or carry 10 pounds; frequently lift and/or carry less than 10
pounds; stand and/or walk for a total of at least 2 hours in an 8-hour workday; sit for
a total of about 6 hours in an 8-hour workday; never balance; occasionally kneel,
crouch, crawl, climb ramps, stairs, ladders, ropes, or scaffolds; and frequently stoop.
Ms. Page did not indicate any manipulative, visual, communicative, or environmental
limitations and described plaintiff’s statements as “partially credible.” (Tr. 413-418).
On the same day plaintiff also underwent a psychiatric review by Dr. Judith
McGee, who reported that her depressive disorder was not a severe impairment. Dr.
McGee indicated on a checklist form that plaintiff had mild restriction of activities of
daily living; no difficulties in maintaining social functioning; no difficulties in maintaining
concentration, persistence, or pace; and no repeated episodes of decompensation. (Tr.
419, 427).
On September 2, 2008, plaintiff returned to Dr. Mallya regarding her depression
and “reported some improvement” and that she was “feeling more relaxed.” (Tr. 519).

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On September 30, 2008, plaintiff again reported that she was “feeling much better.”
(Tr. 519).
On September 24, 2008, plaintiff received her first of three vicosupplementation
injections from Dr. Miller. Two days later plaintiff visited with Dr. Berry, in which she
reported that her pain was better and that her medication provided her with 25%
relief, but that she suffered from sleepiness as a side effect. Dr. Miller wrote that
plaintiff had minimal pain with lumbar flexion and extension, minimal pain of the knees,
minimal effusion on the right knee, that plaintiff was obtaining good results from the
Cymbalta as it was minimizing much of her generalized pain, and that there was no
evidence of oversedation. Dr. Miller included fibromyalgia as a diagnosis.10 (Tr. 490491).
Dr. Miller administered a second set of vicosupplementation injections on
October 1, 2008, and plaintiff reported improvement from the first set. (Tr. 460). The
final injections were administered on October 8, 2008 and plaintiff again reported
improvement in her symptoms and that she no longer required the use of a cane or
a crutch. (Tr. 459). On November 19, 2008, plaintiff visited with Dr. Berry and stated
that her pain was better and that her medications provided her with 65% relief. Dr.
Berry noted continued positive results from Cymbalta and that she was doing quite well
in tapering off opiates. (Tr. 492-493).
On January 8, 2009, plaintiff visited Dr. Mallya. Progress notes state that
plaintiff’s “mood [was] stable.” (Tr. 520). On February 27, 2009, plaintiff visited Dr.
Berry and stated that her pain was worse. However, she also stated that her
medication provided her with 75% relief, that she felt as if the relief was near

10

The record contains no diagnosis of fibromyalgia made by a rheumatologist.
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complete, and that she did not experience any side effects. Plaintiff also reported
increased activity, such as participation in water aerobics and cycling, and her intention
to continue improving her activity level. (Tr. 494-495).
On March 5, 2009, plaintiff reported to Dr. Mallya that she had “been feeling
quite well” and that she “enjoy[ed] water aerobics.” However on March 11, 2009,
plaintiff stated that she was feeling more depressed. In response, Dr. Mallya increased
her dosage of Cymbalta. (Tr. 520).
On April 24, 2009, plaintiff told Dr. Berry that her pain was worse, that she felt
as if her medications provided her with only 50% relief, and that her knees occasionally
gave out. (Tr. 496-497). On June 1, 2009, plaintiff sought treatment at the Emergency
Department at St. John’s Mercy Medical Center for low back and buttock pain, which
she claimed she had been experiencing for a week. An MRI of the lumbar spine
revealed L5-S1 degenerative signal within the L5-S1 disc, but no protrusion, canal or
neural foraminal compromise; L5-S1 facet degeneration; and transitional S1 segment.
A seven-view image of the lumbar spine revealed normal results. Plaintiff was
prescribed Valium for muscle spasms and was given a Dilaudid injection for pain. (Tr.
469-486).
On June 4, 2009, plaintiff returned to Dr. Berry. Plaintiff reported her pain to
be worse and that her medication provided her with only 50% relief along with side
effects of sleepiness, nausea, and constipation. Plaintiff explained that she had been
sitting on the floor for several hours and that when she got up she had severe pain
radiating down her legs. (Tr. 499). A June 22, 2009 MRI remained unchanged from
the prior MRI and the lumbar spine x-ray was normal. (Tr. 500-501).

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On June 30, 2009, plaintiff underwent an electrodiagnostic evaluation by Lizette
Alvarez, M.D. at the request of Dr. Berry. Dr. Alvarez’s physical examination revealed
plaintiff to be a “pleasant woman in no acute distress,” with mild ankle edema, soft,
non-tender calves, range of motion within functional limits, and normal strength in the
lower extremities. The electrodiagnostic study was normal and not suggestive of any
neuropathy or radiculopathy. (Tr. 487-488). At a follow up appointment with Dr. Berry
on July 10, 2009, plaintiff rated her pain as “much better.”
On August 27, 2009, plaintiff followed up with Dr. Mallya and reported “some
improvement with [the increased dose of] Cymbalta.” During this visit, Dr. Mallya
slightly increased the dosage a second time, which plaintiff later stated helped her with
the depressive symptoms. (Tr. 521, 523).
On August 28, 2009, Susan Colburn, a nurse practioner for Dr. Carpenter,
completed an assessment for plaintiff’s disability claim. Hypertension, fibromyalgia, and
joint pain were listed as plaintiff’s diagnosis. The assessment noted that plaintiff’s
endurance would be affected by her impairments and that her employment should be
limited to seated work with 30- to 40-minute rest periods since her pain would limit
the amount of seated time she could sustain. (Tr. 517).
Dr. Mallya also completed an assessment for plaintiff’s disability claim, which
listed depressive disorder with lack of interest as the diagnosis. Dr. Mallya expressed
the opinion that plaintiff’s disorder would affect to the “full extent” her ability to engage
in sustained full-time competitive employment. Yet, despite this assessment, Dr. Mallya
rated plaintiff’s ability to follow work rules, relate to co-workers, maintain personal
appearance, behave in an emotionally stable manner, and relate predictably in social

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situations as good.11 She further rated plaintiff’s ability to deal with the public, use
judgment, interact with supervisors, function independently, concentrate, and
demonstrate reliability as fair.12 She felt that plaintiff would be poor at dealing with
work stresses.13 (Tr. 514-515).
On October 29, 2009, plaintiff had a consultation at the St. Louis Neurological
Institute due to an onset of headaches. (Tr. 533-534). Robert Margolis, M.D. ordered
an MRI of the brain which yielded normal results. (Tr. 525). On October 30, 2009,
plaintiff visited with Dr. Miller complaining of generalized and new hip pain, but denied
any significant side effects from any of her medication. Dr. Miller’s diagnosis was
degeneration of lumbar or lumbosacral intervertebral disc. (Tr. 525-526). On
November 5, 2009, plaintiff returned to Dr. Margolis for a follow up. Progress notes
state that plaintiff no longer suffered from headaches and there was no deterioration
in her vision or her vision fields.
On January 28, 2010, Alan Morris, M.D. performed an orthopedic evaluation and
completed a medical assessment questionnaire. Included in the assessment was Dr.
Morris’s opinion that plaintiff can occasionally lift a maximum of 10 pounds, cannot
carry any amount of weight, can stand or walk for no more than 30 minutes total in
an eight-hour work day, can sit for no more than 2 hours total in an eight-hour work
day, and can never climb stairs, ramps, ladders, or scaffolds, and never balance, stoop,
kneel, crouch, or crawl. (Tr. 537-546).

11

“Good - Ability to function in this area is limited but satisfactory.”

12

“Fair - Ability to function in this area is seriously limited, but not precluded.”

13

“Poor or None - No useful ability to function in this area.”
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On the same day, Dianna Moses-Nunley, Ph.D, performed a psychological
evaluation on plaintiff. Dr. Moses-Nunley stated that she had no concerns about
plaintiff’s reliability and described her as alert, pleasant, and calm. The report noted
“chronic maladjustment that manifests primarily as a mood disorder and is likely
related to the onset, severity, and course of her pain disorders.” Plaintiff was given a
GAF of 70.14 The evaluation further reflected that plaintiff would have the ability to
interact appropriately with the public, supervisors, and co-workers with moderate
restrictions in responding appropriately to usual work situations and to changes in
routine work setting. (Tr. 550-559).
On February 22, 2010, plaintiff returned to Dr. Berry stating that her pain was
worse but that her medications provided 80% relief, which was the highest estimation
since she began pain management. Dr. Berry wrote that her medications were an
effective form of treatment. (Tr. 610-611). Another MRI of the lumbar spine was
performed on April 14, 2010, which reflected disc desiccation at L5-S1 with minimal
central and right paramedian disc protrusion but without significant stenosis or definite
nerve root compression. Disc height and signal were maintained with no additional
level of disease. Vertebral body stature and alignment and marrow remained normal
and the distal cord and conus were unremarkable. (Tr. 583).
On April 15, 2010, plaintiff saw James T. Merenda, M.D., an orthopedic surgeon.
Dr. Merenda did not recommend surgery at the L5-S1 because of the “paucity of
findings” on the MRI results. Instead, he recommended weight reduction surgery and

14

A GAF of 61-70 corresponds with “Some mild symptoms . . . OR some
difficulty in . . . social, occupational, or school functioning, . . . but generally
functioning pretty well, has some meaningful interpersonal relationships.” American
Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders - Fourth
Edition, Text Revision 34 (4th ed. 2000).
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epidural steroid injections. (Tr. 585). The following day plaintiff went to the Emergency
Department at St. John’s Mercy Medical complaining of back pain. The attending
physician noted that the MRI’s reveal only a small disc herniation.
On April 19, 2010, plaintiff, for the first time, told Dr. Berry that the medications
provided no relief. Dr. Berry increased her Percocet and planned for epidural steriod
injections. (Tr. 612-613). These injections took place on April 20, 2010 and April 27,
2010. (Tr. 614-615, 617-619). Plaintiff stated that the first injection provided 50%
relief. (Tr. 617-619).
III. The ALJ’s Decision
In the decision issued on August 5, 2010, the ALJ made the following findings:
1.

Plaintiff meets the insured status requirements of the Social Security Act
through December 31, 2012.

2.

Plaintiff has not engaged in substantial gainful activity since July 1, 2008,
the amended alleged disability onset date.

3.

Plaintiff has the following severe impairments: osteoarthritis, obesity, and
degenerative disc disease of the lumbar spine.

4.

Plaintiff does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1.

5.

Plaintiff has the residual functional capacity (RFC) to perform sedentary
work as defined in 20 CFR 404.1567(a) with the following additional
limitations: must have sit, stand option at the work site with ability to
change positions frequently; occasionally climb stairs and ramps;
occasionally stoop, kneel, or crouch; never climb ladders, ropes or
scaffolds; and never crawl.

6.

Plaintiff is unable to perform any past relevant work.

7.

Plaintiff was born on August 7, 1970 and was 37 years old, which is
defined as a younger individual age 18-44, on the alleged disability onset
date.

8.

Plaintiff has at least a high school education and is able to communicate
in English.
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9.

Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a
finding that plaintiff is “not disabled,” whether or not plaintiff has
transferable job skills.

10.

Considering plaintiff’s age, education, work experience, and RFC, there
are jobs that exist in significant numbers in the national economy that
plaintiff can perform.

11.

Plaintiff has not been under a disability, as defined in the Social Security
Act, from July 1, 2008, through the date of this decision.

(Tr. 12-23).
IV. Legal Standards
The district court must affirm the Commissioner’s decision “if the decision is not
based on legal error and if there is substantial evidence in the record as a whole to
support the conclusion that the claimant was not disabled.” Long v. Chater, 108 F.3d
185, 187 (8th Cir. 1997). “Substantial evidence is less than a preponderance, but
enough so that a reasonable mind might find it adequate to support the conclusion.”
Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002) (quoting Johnson v. Apfel, 240
F.3d 1145, 1147 (8th Cir. 2001)). If, after reviewing the record, the court finds it
possible to draw two inconsistent positions from the evidence and one of those
positions represents the Commissioner’s findings, the court must affirm the decision
of the Commissioner.

Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011)

(quotations and citation omitted).
To be entitled to disability benefits, a claimant must prove she is unable to
perform any substantial gainful activity due to a medically determinable physical or
mental impairment that would either result in death or which has lasted or could be
expected to last for at least twelve continuous months. 42 U.S.C. § 423(a)(1)(D),
(d)(1)(A); Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009). The Commissioner
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has established a five-step process for determining whether a person is disabled. See
20 C.F.R. § 404.1520; Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009). “Each step
in the disability determination entails a separate analysis and legal standard.” Lacroix
v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006).
Steps one through three require the claimant to prove (1) she is not currently
engaged in substantial gainful activity, (2) she suffers from a severe impairment, and
(3) her disability meets or equals a listed impairment. Pate-Fires, 564 F.3d at 942.
If the claimant does not suffer from a listed impairment or its equivalent, the
Commissioner’s analysis proceeds to steps four and five. Id.
“Prior to step four, the ALJ must assess the claimant’s [RFC], which is the most
a claimant can do despite her limitations.” Moore, 572 F.3d at 523 (citing 20 C.F.R.
§ 404.1545(a)(1)). “RFC is an administrative assessment of the extent to which an
individual’s medically determinable impairment(s), including any related symptoms,
such as pain, may cause physical or mental limitations or restrictions that may affect
his or her capacity to do work-related physical and mental activities.” Social Security
Ruling (SSR) 96-8p, 1996 WL 374184, *2. “[A] claimant’s RFC [is] based on all
relevant evidence, including the medical records, observations by treating physicians
and others, and an individual’s own description of his limitations.” Moore, 572 F.3d at
523 (quotation and citation omitted).
In determining a claimant’s RFC, the ALJ must evaluate the claimant’s credibility.
Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Pearsall v. Massanari, 274 F.3d
1211, 1217 (8th Cir. 2002). This evaluation requires that the ALJ consider “(1) the
claimant’s daily activities; (2) the duration, intensity, and frequency of the pain; (3)
the precipitating and aggravating factors; (4) the dosage, effectiveness, and side

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effects of medication; (5) any functional restrictions; (6) the claimant’s work history;
and (7) the absence of objective medical evidence to support the claimant’s
complaints.” Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011) (quotation and
citation omitted).

“Although ‘an ALJ may not discount a claimant’s allegations of

disabling pain solely because the objective medical evidence does not fully support
them,’ the ALJ may find that these allegations are not credible ‘if there are
inconsistencies in the evidence as a whole.’” Id. (quoting Goff v. Barnhart, 421 F.3d
785, 792 (8th Cir. 2005)). After considering the seven factors, the ALJ must make
express credibility determinations and set forth the inconsistencies in the record which
caused the ALJ to reject the claimant’s complaints. Singh v. Apfel, 222 F.3d 448, 452
(8th Cir. 2000); Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998).
At step four, the ALJ determines whether claimant can return to her past
relevant work, “review[ing] [the claimant’s] [RFC] and the physical and mental
demands of the work [claimant has] done in the past.” 20 C.F.R. § 404.1520(e). The
burden at step four remains with the claimant to prove her RFC and establish that she
cannot return to her past relevant work. Moore, 572 F.3d at 523; accord Dukes v.
Barnhart, 436 F.3d 923, 928 (8th Cir. 2006); Vandenboom v. Barnhart, 421 F.3d 745,
750 (8th Cir. 2005).
If the ALJ holds at step four of the process that a claimant cannot return to past
relevant work, the burden shifts at step five to the Commissioner to establish that the
claimant maintains the RFC to perform a significant number of jobs within the national
economy. Banks v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001). See also 20 C.F.R.
§ 404.1520(f).

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If the claimant is prevented by her impairment from doing any other work, the
ALJ will find the claimant to be disabled.
V. Discussion
Plaintiff contends that the ALJ erred by (1) failing to properly consider
depression and pain disorder as severe medically determinable impairments; (2) failing
to properly consider opinion evidence; and (3) failing to properly consider plaintiff’s
credibility. (Doc. #15).
A. Severity of Plaintiff’s Impairments
(i) Depression
In her application for disability benefits, plaintiff alleged disability due to
osteoarthritis, bulging disc lower back, intracranial hypertension, depression, double
knee surgery, and stasis dermatitis. At Step 2 of the sequential evaluation, the ALJ
determined plaintiff’s depression to be nonsevere.
The Social Security regulations define a nonsevere impairment as an impairment
or combination of impairments that does not significantly limit a claimant’s ability to
do basic work activities. See 20 CFR §§ 404.1521(a), 416.921(a). Under the
regulations, the ALJ must evaluate the severity of mental impairments by gauging their
impact on four functional areas: (1) activities of daily living; (2) social functioning; (3)
concentration, persistence, or pace; and (4) episodes of decompensation. See 20
C.F.R. § 404.1520a(c)(3). The regulations further provide that if the ALJ rates
plaintiff’s limitations as “none” or “mild” in the first three areas, and “none” in the
fourth area, the ALJ will generally conclude that the claimant’s mental impairments are
not severe, unless the evidence indicates that there is more than a minimal limitation

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in the plaintiff’s ability to perform basic work activities. Partee v. Astrue, 638 F.3d 860
(8th Cir. 2011); 20 CFR § 404.1520a(d)(1).
Plaintiff asserts that the ALJ erred in finding that her depression was a
nonsevere impairment. She relies on the report of non-treating physician, Dr. MosesNunley, who diagnosed her with major depressive disorder and “chronic maladjustment
that manifests primarily as a mood disorder and is likely related to the onset, severity
and course of her pain disorders.” Plaintiff further relies on Dr. Berry’s diagnosis of
“adjustment disorder secondary to chronic pain” and Dr. Mallya’s diagnosis of
“depressive disorder with lack of interest and pain” and her opinion that plaintiff would
have difficulty engaging in full-time employment “[d]ue to medical/physical illness and
pain which causes increased depression with decreased motivation.”
The Court finds that the ALJ’s determination that plaintiff had not experienced
any episodes of decompensation, that she was only mildly limited in her social
functioning, and that she had no limitation in her daily activities or in maintaining
concentration, persistence and pace is supported by substantial evidence in the record.
(Tr. 13).
Although Dr. Mallya’s July 10, 2008 report diagnosed plaintiff with depressive
disorder and an anxious mood, plaintiff was also described as well groomed, euthymic,
oriented, of average intellect, and possessive of logical, sequential speech, and good
judgment. Plaintiff was given a GAF of 60, which is indicative of only moderate
symptoms. Dr. Mallya’s second report, written on September 24, 2009, maintained a
diagnosis of depressive disorder along with the opinion that plaintiff’s depression with
low motivation would affect to the “full extent” her ability to engage in sustained fulltime employment. However, despite this conclusory statement, Dr. Mallya rated

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plaintiff’s ability to follow work rules, relate to co-workers, maintain personal
appearance, behave in an emotionally stable manner, and relate predictably in social
situations as good. She further rated plaintiff’s ability to deal with the public, use
judgment, interact with supervisors, function independently, concentrate, and
demonstrate reliability as fair and only felt that plaintiff would be poor at dealing with
work stresses.
Dr. Moses-Nunley provided a psychological examination of plaintiff on January
28, 2010. Despite diagnosing plaintiff with major depressive disorder, she expressed
her opinion that plaintiff would have the ability to interact appropriately with the public,
supervisors, and co-workers with only moderate restrictions in responding
appropriately to usual work situations and to changes in routine work setting. Plaintiff
was given a GAF of 70, which is indicative of only mild symptoms. Further, there is also
no evidence in the record that plaintiff had been hospitalized due to her psychiatric
condition. In fact, plaintiff testified at the hearing that her depression was mostly
controlled.
Considering the evidence in the record, including that which detracts from the
ALJ’s conclusions, the Court finds that there is substantial evidence to support the ALJ’s
decision regarding the severity of plaintiff’s depression. A court should not reverse a
decision merely because substantial evidence would have also supported a contrary
outcome, or because the court would have decided differently. Wildman v. Astrue, 596
F.3d 959, 964 (8th Cir. 2010).
(ii) Pain Disorder
Plaintiff next argues that the ALJ erred by not considering “pain disorder” in his
decision. However, plaintiff did not cite pain disorder as an impairment when applying

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for Social Security benefits or when completing the accompanying forms. See Kirby v.
Astrue, 500 F.3d 705, 708-709 (affirming ALJ’s finding that claimant did not suffer
significant impairment; initial disability form did not claim such impairment).
Furthermore, although it is true that plaintiff was treated for pain, not one of her
treating physicians diagnosed her with pain disorder. Pain disorder is “like that of a
physical disorder, but no physical cause is found. The pain is thought to be due to
psychological problems.”15 Here, the pain was diagnosed as a symptom of plaintiff’s
various physical medical conditions, which include osteoarthritis, fibromyalgia, lumbar
degenerative disc disease, and lumbar radiculopathy.16 Accordingly, the ALJ had no
obligation to consider pain disorder at Step 2 of the sequential evaluation.
B. Opinion Evidence
(i) Dr. Mallya
Plaintiff contends that the ALJ did not give proper weight to the opinion of Dr.
Mallya, her treating psychiatrist. Plaintiff further argues that the ALJ failed to give good
reasons for why he accorded only “some weight” to Dr. Mallya’s opinion.
“In deciding whether a claimant is disabled, the ALJ considers medical opinions
along with “the rest of the relevant evidence” in the record. 20 C.F.R. § 404.1527(b).
The opinion of a treating source should be given controlling weight where it is wellsupported by clinical and laboratory diagnostic techniques and is not inconsistent with
the record as a whole. 20 C.F.R. § 404.1527(c)(2). If an ALJ discredits a portion of a

15

Pain Disorder, http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001920/(last
visited Dec. 3, 2012).

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treating physician’s opinion, the ALJ must give good reasons for doing so. Singh v.
Apfel, 222 F.3d 448, 452 (8th Cir. 2000).
In his decision, the ALJ wrote that the “[t]reatment notes from [Dr. Mallya]
indicate [] claimant’s depression has been fairly well-controlled with medications,” that
the September 24, 2009 medical source statement “indicated fair to good functioning
in all areas except ability to interact with supervisors,” and that “[t]he only depressive
symptoms cited were lack of interest and chronic pain.” The ALJ then accorded “[s]ome
weight” to Dr. Mallya’s opinion “due to the treating history, clinical findings, and
reasoned bases for the decisions.” (Tr. 18).
As to the September 24, 2009 medical source statement, the ALJ could properly
give less than controlling weight to Dr. Mallya’s opinion because it was conclusory. The
assessment contained three sets of checklists (one of which Dr. Mallya did not
complete), cited to no medical evidence, and provided little to no elaboration. “The
checklist format, generality, and incompleteness of the assessments limit evidentiary
value.” Holmstrom v. Massanari, 270 F.3d 715, 721 (8th Cir. 2001). “A treating
physician’s opinion deserves no greater respect than any other physician’s opinion
when [it] consists of nothing more than vague, conclusory statements. Piepgras v.
Chater, 76 F.3d 233, 236 (8th Cir. 1996).
The court further finds that the ALJ did provide good reasons for according
“some weight,” instead of controlling weight, to Dr. Mallya’s opinion. The opinion of a
treating physician should be given great weight only if the opinion is based on sufficient
medical or diagnostic data. See Leckenby v. Astrue, 487 F.3d 626, 632 (8th Cir. 2007);
20 C.F.R. § 404.1527(d)(3) (more weight will be given to an opinion when the
physician provides relevant evidence, such as medical signs, in support of his opinion).

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The record reflects that plaintiff saw Dr. Mallya a total of nine times from July
10, 2008 to October 22, 2009. Progress notes from plaintiff’s first visit provide very
little medical support for Dr. Mallya’s diagnosis of “depressive disorder.” The notes
reflect plaintiff’s own account of her medical, social, and family history along with a
brief “mental status” checklist reflecting that plaintiff was well groomed, cooperative,
had no issues with speech or flow of thought, had a euthymic but anxious mood,
possessed good insight and judgment, was oriented and of average intellect, and not
suicidal. See Tr. 396-398.
The remainder of Dr. Mallya’s progress notes are extremely brief, mostly consist
of incomplete sentences reflecting plaintiff’s own report of her general mood, and
provide little to no medical or diagnostic data. On August 7, 2008, Dr. Mallya wrote
that plaintiff’s “moods [were] fairly well stable;” on September 2, 2008 plaintiff
“reported some improvement - feeling more relaxed;” on September 20, 2008 plaintiff
was “feeling much better;” on January 8, 2009 plaintiff’s “mood [was] stable;” on
March 5, 2009 plaintiff stated that she had “been feeling quite well” on March 11, 2009
plaintiff’s Cymbalta was increased due to her report of feeling more depressed; on
August 27, 2009 plaintiff reported “some improvement with [the increased dose of]
Cymbalta” and the dosage was again increased; and on October 11, 2009 plaintiff
again stated she was “feeling somewhat better since [the second increase of]
Cymbalta.” See Tr. 519-523.
The Court agrees with the ALJ that the “treating history, clinical findings, and
reasoned bases,” or lack thereof, are sufficient reasons for according less weight to Dr.
Mallya’s opinions. See Barnes v. Astrue, 4:10CV1322 MLM (ED Mo. July 7, 2011)

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(treatment notes that primarily reflect plaintiff’s recitation of her problems and
subjective symptoms are not required to hold great weight).
Also, contrary to plaintiff’s assertion, the ALJ did not make his own independent
medical findings. The ALJ’s decision reflects that he considered the evidence of record,
including Dr. Mallya’s reports. That fact that the ALJ did not address every detail of Dr.
Mallya’s notes does not establish that he made his ow medical conclusions. Barnes v.
Astrue, 4:10CV1322 MLM (ED Mo. July 7, 2011); See also Karlix v. Barnhart, F.3d 742,
746 (8th Cir. 2006) (“The fact that the ALJ did not elaborate on this conclusion does
not require reversal, because the record supports the overall conclusion.”).
(ii) Dr. Alan Morris
Dr. Alan Morris, a consultive examiner, saw plaintiff on one occasion on January
28, 2010 for an orthopedic evaluation as requested by the ALJ at the hearing. The ALJ
gave “some weight” to Dr. Morris’ opinion and “a portion of the limitations [were]
included in the residual functional capacity assessment.” Plaintiff argues that the ALJ
erred in failing to “provide good reasons for ignoring much of the evidence in Dr.
Morris’ report.” Plaintiff also takes issue with the ALJ’s statement that Dr. Morris’
opinion “appeared to rely heavily on the claimant’s subjective complaints and reports
of limitations.”
It is well settled that the report of a consulting physician who has seen the
claimant only once is of little significance by itself. See Browing v. Sullivan, 958 F.2d
817, 821 (8th Cir. 1992); Turpin v. Bowen, 813 F.2d 165, 170 (8th Cir. 1987) (“The
report of a consulting physician who examines a claimant once does not constitute
‘substantial evidence’ upon the record as a whole.’”). Further, to the extent the ALJ
may not have explained why he did not credit all of Dr. Morris’ findings, “a deficiency

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in opinion-writing is not a sufficient reason for setting aside an administrative finding
where the deficiency has no practical effect on the outcome of the case.” Senne v.
Apfel, 198 F.3d 1065, 1067 (8th Cir. 1999).
The court disagrees with plaintiff’s contention that the ALJ “ignored much of the
evidence” provided by Dr. Morris, including “that a cane was medically necessary for
ambulation.” The ALJ’s decision extensively listed the vast majority of Dr. Morris’
observations; such as plaintiff’s broad based waddling gait, her lack of lumbar lordosis
or scoliosis, her ability to walk on heels and toes with light support from the wall, her
ability to tandem walk and squat 30 degrees bilateral knee flexion, her ability to get
on and off the exam table without assistance, a lack of joint effusion, moderate
crepitus, normal lumbar spine alignment, and a lack of muscle atrophy in her lower
extremities. Further, Dr. Morris’ statement that plaintiff medically requires a cane is not
supported by the medical reports of plaintiff’s treating physicians, and plaintiff admitted
at the hearing that her use of a cane was by choice and not by physician instruction.
Additionally, the Court does not find problematic the ALJ’s determination that
Dr. Morris’ medical source statement, which vastly limited plaintiff’s work-related
physical activities, “appeared to rely heavily on claimant’s subjective complaints and
reports of limitations.” A review of the record reflects that Dr. Morris’ opinions on
plaintiff’s extensive work limitations are fairly inconsistent with his own examination
observations and those of plaintiff’s pain management physician, Dr. Berry, who had
never placed work-related or physical restrictions on plaintiff. “An ALJ is entitled to give
less weight to a medical opinion when it is based largely on subjective complaints,
rather than on objective medical evidence” or when the physician’s notes are

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inconsistent with the RFC assessment. Kirby v. Astrue, 500 F.3d 705 (8th Cir. 2007);
Hacker v. Barnhart, F.3d 934, 937 (8th Cir. 2006).
(iii) Suzanne Page
Plaintiff contends that it was reversible error for the ALJ to weigh the opinion of
Suzanne Page, a lay person, as that of a medical consultant. “An ALJ may rely upon
the opinion of a nontreating or consultative ‘medical source,’ but he may not give the
same weight to the opinion of a nonmedical, or lay, state agency evaluator.” Williams
v. Astrue, 4:11CV57 AGF, 2012 U.S. Dist. LEXIS 37359 (E.D. Mo. Mar. 20, 2012).
The Commissioner acknowledges s in his brief that the ALJ erroneously treated
the findings of fact made by Ms. Page as an opinion from a non-examining expert
source when, in fact, she was a Disability Determination Services Counselor, not a
medical consultant. However, the Commissioner argues that the ALJ’s misstatement
was a harmless error in that it did not affect the outcome of the ALJ’s RFC assessment
or the legitimacy of that assessment. See Dewey v. Astrue, 509 F.3d 447, 449-50 (8th
Cir. 2007) (error is harmless when it would not affect the ALJ’s decision).
The ALJ’s decision presented an exhaustive description of plaintiff’s medical
history in which he provided detailed summaries of physician treatment notes,
diagnostic test results, and an RFC assessment from an orthopedic physician. The ALJ
also evaluated the plaintiff’s credibility before considering the opinion of the DDS
counselor. See Ott v. Astrue, No. 4:10CV2036 CDP, 2012 U.S. Dist. LEXIS 49380,
(E.D. Mo. April 9, 2012) (“[T]he ALJ supported his opinion with sufficient medical
evidence and medical opinions for [the Court] to conclude that, even if the ALJ
understood that the RFC assessment [] was completed by a non-physician, he would
have reached the same result, and any error in attributing the assessment to that of

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a physician does not warrant remand.”). Because of the ALJ’s extensive attention to
the reports of plaintiff’s treating physicians, the Court finds that sufficient medical
evidence supports the determination of the plaintiff’s RFC, despite the ALJ’s error in
mistakenly categorizing Ms. Page as a non-treating expert.
The Court also notes that the ALJ’s conclusion about plaintiff’s RFC was more
restrictive than the one proposed by the DDS counselor. Ms. Page opined that plaintiff
could frequently stoop and occasionally crawl, while the ALJ found that plaintiff could
occasionally stoop and never crawl. See Shelton v. Astrue, 2012 U.S. Dist. LEXIS
25368 (W.D. Mo. Feb. 28, 2012) (harmless error when the ALJ’s RFC assessment is
more restrictive than the DDS counselor’s proposal).
(vi) Susan Colburn
Plaintiff contends that the ALJ did not accord adequate weight to the medical
source statement completed by nurse practitioner Susan Colburn. The one-page form
reflects that plaintiff’s pain issues would limit her employment to seated work and
require 30- to 40-minute rest periods. The ALJ gave “little weight” to her opinion
because it was “not from an acceptable medical source.”
The Social Security regulations provide that in order to establish an impairment,
the evidence must come from an acceptable medical source, such as a licensed
physician or psychologist. 20 CFR § 404.1513(a)(1),(2). However, “[i]t is appropriate
to give little weight to statements of opinion by a treating physician that consist of
nothing more than vague, conclusory statements.” Swarnes v. Astrue, No. 08-5025
KES, 2009 WL 454930, at *11 (D.S.D. Feb. 23, 2009). The medical source statement
completed by Ms. Coburn consists of nothing more than a diagnosis of “HTN,
fibromyalgia, and joint pain;” that plaintiff “continues with chronic pain issues - sees

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pain management physician - uncontrolled HTN - adjusted antihypertensives;” “seated
work needed;” “rest 40-30 min rest periods;” and “pain issues would limit amount of
seated time.” Regardless of whether Ms. Colburn could be considered an acceptable
medical source, the assessment itself is defunct of any narrative explanation for the
conclusory statements regarding plaintiff’s work limitations. As such, the ALJ did not
err in giving little weight to the assessment.
C. Plaintiff’s Credibility
The plaintiff argues that the ALJ failed to properly determine her credibility by
first not discussing the side effects from her medication, specifically drowsiness, and
second by finding that plaintiff’s allegations of pain were supported by “relatively weak
medical evidence.”
Evidence and severity of pain is subjective in nature and, as such, an ALJ is
required to evaluate more than objective medical evidence in order to evaluate
whether the alleged symptoms negatively affects the claimant’s ability to work. Halpin
v. Shalala, 999 F.2d 342, 346 (8th Cir. 1993). In Polaski v. Heckler, 739 F.2d 1320,
1322 (8th Cir. 1984), the Eighth Circuit articulated five factors for evaluating pain and
other subjective complaints: “(1) the claimant’s daily activities; (2) the duration,
frequency, and intensity of the pain; (3) precipitating and aggravating factors; (4)
dosage, effectiveness, and side effects of medication; [and] (5) functional restrictions.”
The determination of a plaintiff’s credibility is for the Commissioner, and not the Court,
to make. Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001). Although the ALJ
may not discount subjective complaints on the sole basis of personal observation, the
ALJ may disbelieve a claimant’s complaints if there are inconsistencies in the evidence
as a whole. Polaski, 739 F.2d at 1322. “The ALJ is not required to discuss methodically

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each Polaski consideration, so long as he acknowledged and examined those
considerations before discounting [a claimant’s] subjective complaints.” Partee v.
Astrue, 638 F.3d 860, 865 (8th Cir. 2011).
Although the ALJ did consider plaintiff’s medications and their effectiveness
when making his credibility determination, plaintiff is correct in asserting that the ALJ
did not specifically consider drowsiiness as one of her reported side effects. However,
this side effect did not exist for a period of twelve consecutive months. See Shell v.
Astrue, 4:11CV1201 MLM (ED Mo. May 15, 2012) (citing 20 CFR § 414.909)
(medication side effects must be expected to last for a continuous period of at least 12
months to be considered disabling). The record reflects that plaintiff first complained
of drowsiness as a side effect on September 26, 2008 to Dr. Berry. (Tr. 490-491).
However, she did not report any side effects on February 27, 2009. (Tr. 494-495). On
October 30, 2009, plaintiff again complained of drowsiness as a side effect but denied
it as a significant issue. (Tr. 525-526). On February 22, 2010 and April 27, 2010
treatments notes from Dr. Berry did not reflect any complaints of medication side
effects. Accordingly, the ALJ was under no obligation to consider the effect of daytime
drowsiness in his RFC determination.
Furthermore, despite the ALJ’s concern for the existence of “relatively weak
medical evidence,” he did not reject plaintiff’s complaints solely because of this reason.
The ALJ also took into account that plaintiff had reported engaging in physical
activities, such as water aerobics and cycling; that treatment notes reflected
improvement in her symptoms after treatment and physical therapy; and that plaintiff
had made various inconsistent statements regarding her disability.

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The record also reflects that the medical evidence was relative weak in
supporting plaintiff’s complaints of disabling pain. For instance, her treating physicians
repeatedly encouraged her to exercise, Dr. Merenda did not recommend surgery due
to the “paucity of findings on MRI” and instead recommended weight reduction and
steroid injections; her physical therapists reported great improvement with her
exercises; and Dr. Berry stated that her complaints of pain simply did not correlate
with medical findings and that her medications were an effective form of treatment.
(Tr. 299-300, 337, 371, 462, 585, 610-611).
A review of the ALJ’s decision shows that the ALJ thoroughly considered
plaintiff’s subjective complaints on the basis of the entire record before him, properly
considered the Polaski factors, and set out inconsistencies detracting from plaintiff’s
credibility. Accordingly, the Court finds no error in the ALJ’s decision to discount
plaintiff’s subjective complaints.
VI. Conclusion
For the reasons discussed above, the Court finds that the Commissioner’s
decision is supported by substantial evidence in the record as a whole.
Accordingly,
IT IS HEREBY ORDERED that the relief sought by plaintiff in her brief in
support of complaint [Doc. #15] is denied.
A separate Judgment in accordance with this Memorandum and Order will be
entered this same date.
___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 30th day of January, 2013.

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