Jackson v. Astrue

Filing 20

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED and that this case is DISMISSED. An appropriate Order of Dismissal shall accompany this Memorandum and Order. Signed by Magistrate Judge Thomas C. Mummert, III on September 19, 2013. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DEBORA J. JACKSON,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,1
Defendant.

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Case number 4:12cv0933 TCM

MEMORANDUM AND ORDER
This 42 U.S.C. § 405(g) action for judicial review of the final decision of Carolyn W.
Colvin, the Acting Commissioner of Social Security (Commissioner), denying the application
of Debora Jackson (Plaintiff) for disability insurance benefits (DIB) under Title II of the
Social Security Act (the Act), 42 U.S.C. § 401-433, is before the undersigned United States
Magistrate Judge by written consent of the parties. See 28 U.S.C. § 636(c). Plaintiff has
filed an opening brief and reply brief in support of her complaint; the Commissioner has filed
a brief in support of her answer.
Procedural History
Plaintiff applied for DIB in February 2009, alleging a disability onset date of March
30, 2003, caused by back problems, carpal tunnel syndrome in both wrists, and rheumatoid

1

Carolyn W. Colvin became the Acting Commissioner of Social Security in February 2013 and
is hereby substituted for Michael J. Astrue as defendant. See 42 U.S.C. § 405(g).

arthritis in both wrists. (R.2 at 101-03, 134.) Her application was denied initially and after
a hearing held in March 2010 before Administrative Law Judge (ALJ) Michael D. Mance.
(Id. at 13-23, 27-55, 58-62.) The Appeals Council denied Plaintiff's request for review,
thereby effectively adopting the ALJ's decision as the final decision of the Commissioner.
(Id. at 1-3.)
Testimony Before the ALJ
Plaintiff, represented by counsel, and James E. Israel, L.P.C., C.V.E., C.R.C.,3
testified at the administrative hearing.
At the beginning of the hearing, Plaintiff amended her alleged disability onset date to
June 16, 2008.4 (Id. at 129.)
Plaintiff testified that she was then fifty-one years old. (Id. at 34.) She lives with her
husband in a trailer. (Id. at 34-35.) Her husband works. (Id. at 39.) She has a General
Equivalency Degree (GED). (Id. at 34.)
Plaintiff's last job was as a bartender. (Id. at 35.) This was in 2007 and 2008, and was
part-time. (Id.) Before that she had last worked in 2003. (Id.) There was a gap in her

2

References to "R." are to the administrative record filed by the Acting Commissioner with
her answer.
3

L.P.C. is an abbreviation for Licensed Professional Counselor; C.V.E. is for Certified
Vocational Evaluator; C.R.C. is for Certified Rehabilitation Counselor.
4

An earlier application for DIB had been denied at the initial level in February 2006 and not
pursued further. (Id. at 131.)
-2-

earnings because she had been unable to work. (Id.) During that gap, there were several jobs
she had worked at for only a brief time due to her back pain.5 (Id. at 35-36.)
She is no longer working because she cannot find a job she can do. (Id. at 37.) She
cannot sit or stand for a long period of time because of hand and back pain. (Id.) She cannot
lift anything over five pounds because of her back problems. (Id.) This restriction was
placed on her in 1979 by the doctor who treated her for a back injury. (Id.)
Asked what she does during the day, Plaintiff explained that she takes care of their
house, i.e., general household chores, such as cleaning and laundry, and cooks. (Id. at 3940.) She cannot grasp dishes tightly enough to wash them, and has to rest often while
vacuuming. (Id. at 40.) She sometimes has trouble buttoning her clothes and tying her shoes.
(Id.)
Plaintiff can walk no farther than a couple of blocks. (Id. at 42.) If she did not have
to walk, she could stand for two or three hours at a time. (Id.) She could sit for
approximately the same length before having to stand up and stretch. (Id.) When riding in
a car, she has to stop approximately every two hours. (Id. at 43.) Sometimes, she has to lie
down to relieve her back pain. (Id. at 45.) She has a traction set at home that she
occasionally uses to relieve that pain. (Id.) Sometimes she uses the traction every three
months; sometimes it is once a year. (Id.) In a typical week, she probably lies down two or
three times to relieve the back pain. (Id. at 46.) There is no set time for how long she needs

5

The attorney who represented Plaintiff had the administrative level explained at the beginning
of the hearing that the alleged impairments listed on her DIB application were based on Plaintiff's
interpretation of what she had been told by her doctors. (Id. at 33.)
-3-

to rest. (Id.) Her back pain is constant, but varies in intensity. (Id.) Problems with her hand
require that she rests for approximately thirty to sixty minutes after washing dishes for ten
minutes. (Id.) She sometimes has problems cooking and doing laundry because of her hands.
(Id.) For instance, she has difficulties lifting a heavy skillet or peeling potatoes. (Id.)
Plaintiff has not received any medical treatment because she does not have any
insurance and cannot afford it. (Id. at 40.) She had gone to a clinic, Volunteers in Medicine,
in July 2007, September 2007, and January 2009. (Id. at 41.) They were able only to give
her medication for her pain and muscle spasms. (Id.) She takes Tylenol with codeine for the
pain and Flexeril for the muscle spasms. (Id.) She is also taking an anti-depressant after
losing seven members of her family. (Id. at 41-42.) Plaintiff has not seen a mental health
professional for her depression. (Id. at 47.) She did not "feel that it was that bad." (Id.)
Plaintiff smokes one-half pack of cigarettes a day. (Id. at 43.)
Plaintiff further testified that she worked as "an expeditor." (Id. at 44.) When she had
a scheduling job, she had to move totes around. (Id.) These weighed up to fifty pounds.
(Id.)

Asked how long she could stand before having to sit down, Plaintiff replied

"[p]robably" no longer than three to four hours. (Id.)
Mr. Israel testified as a VE. He classified Plaintiff's past job doing electrical solder
factory work and her job as a line lead worker as medium-strength and semi-skilled; as a
bartender as light, semi-skilled; and as a scheduling supervisor as she described it as medium,
semi-skilled and as generally performed as light, semi-skilled. (Id. at 48-49.)

-4-

The ALJ asked him to assume a hypothetical person of Plaintiff's age, education, and
work experience who is limited to the light exertional level. (Id. at 49.) This person can
frequently climb stairs and ramps; can not climb ropes, ladders, and scaffolds; can frequently
balance, stoop, kneel, crouch, and crawl; can frequently, not constantly, do gross
manipulation; and should avoid concentrated exposure to extreme cold, unprotected heights,
and excessive vibration. (Id.) The VE replied that this person could perform only Plaintiff's
past work as a scheduling supervisor as that job is defined in the Dictionary of Occupational
Titles (DOT). (Id. at 50.)
If the hypothetical person is limited to light exertional level, as before, but can only
occasionally balance, stoop, kneel, crouch, crawl, and climb stairs and ramps; can not climb
ropes, ladders, and scaffolds; can frequently, not constantly, do gross manipulation; and
should avoid concentrated exposure to extreme cold, unprotected heights, and excessive
vibration, this person can still perform Plaintiff's past work as a scheduling supervisor as the
job is defined in the DOT. (Id. at 50-51.)
If the hypothetical person also needs to frequently rotate positions, is limited to no
more than occasional gross manipulation, and otherwise has the same limitations as the
second hypothetical person, she will not be able to perform Plaintiff's past work, primarily
because such work requires more than occasional handling. (Id. at 51.) Nor will there be any
other jobs the person can perform given the her age and educational background. (Id.)
The VE testified that his information is consistent with that in the DOT "and its
companion publications." (Id. at 52.)

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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, records from health
care providers, and assessments of her physical functional capacities.
When applying for DIB, Plaintiff 's attorney completed a Disability Report on her
behalf. (Id. at 133-38.) Plaintiff is 5 feet tall and weighs 105 pounds. (Id. at 133.) Her
impairments, see pages 1 to 2, supra, limit her ability to work by causing her constant back
and wrist pain and by preventing her from standing or sitting for long periods of time, from
lifting anything heavier than five pounds, and from gripping anything "very well." (Id.)
These impairments first limited her ability to work on March 30, 2003, and stopped her from
working that same day. (Id.) She listed two jobs that she had held in the past fifteen years.
(Id. at 134-36.) The job she had held the longest was as an electrical solder. (Id. at 135.)
From 2001 to 2003, she had worked as a scheduling supervisor. (Id.) She described the
requirements of the soldering job, but not of the scheduling supervisor job. She had not seen
any doctors or gone to any hospitals or clinics since November 2003. (Id. at 136-37.) Her
only medication was Tylenol. (Id. at 137.)
On a Work History Report, Plaintiff did describe the requirements of her scheduling
supervisor job. (Id. at 140-47.) This job required that she walk for a total of one hour each
day; stand for one hour; sit for six hours; handle, grab, or grasp big objects for four hours;
reach for two hours; and write, type, or handle small objects for four hours. (Id. at 142.) She

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did not have to carry anything. (Id.) The heaviest weight she lifted was less than ten pounds.
(Id. at 143.)
Plaintiff completed a Function Report. (Id. at 152-59.) Asked to describe what she
does from when she awakes until she goes to bed at night, she reported that, after showering,
she fixes breakfast, does the dishes, does laundry, if necessary, dusts "a little," makes the
beds, has lunch, "get[s] something out for dinner," and does the dishes. (Id. at 152.) She
cannot work in the yard or do deep cleaning, e.g., wash the windows or mop. (Id. at 153.)
Sometimes, her back pain affects her sleep. (Id.) She has difficulty with buttons, brushing
her hair, and using a curling iron. (Id.) She daily prepares the meals for herself and her
husband. (Id. at 154.) These take approximately thirty minutes. (Id.) It takes two and onehalf to three hours to do her household chores. (Id.) She drives a car, and shops for groceries
once a week for one and one-half to two hours. (Id. at 155.) She does not have any hobbies,
nor did she have before her impairments. (Id. at 156.) Once or twice a week, she talks on
the telephone with her children or parents and visits her parents. (Id.) Because of her
impairments, she cannot pick up her grandchildren, play with them, or attend their sporting
events. (Id. at 157.) She follows written and spoken instructions very well. (Id.) Her
impairments adversely affect her abilities to lift, squat, bend, stand, walk, sit, kneel, climb
stairs, and use her hands. (Id.) The farthest she can walk is three blocks before having to rest
for a few minutes. (Id.) She finishes what she starts. (Id.) She gets along very well with
authority figures. (Id. at 158.) She also handles stress and changes in routine very well. (Id.)

-7-

Plaintiff completed a Disability Report – Appeal form after the initial denial of her
application. (Id. at 178-84.) Beginning in May 2008, her pain, grip strength in her wrists,
and range of motion in her wrists had become progressively worse. (Id. at 179.) The overthe-counter medication was not as effective as before. (Id.) She cannot stand for long
periods of time, cannot bend at the waist, and cannot lift anything heavier than five pounds.
(Id.) Her wrists were becoming numb more frequently. (Id.) Turning her wrists was
becoming more painful. (Id.) She did not have any new illnesses or impairments. (Id.) Dr.
David Brown prescribed Advil, Tylenol Arthritis, and Tylenol PM for her pain. (Id. at 181.)
On other forms asking for information about medications and recent medical treatment,
Plaintiff reported that she had seen Dr. Nancy Noel in November 2009 and had been
prescribed Flexeril for muscle spasms, Wellbutrin for depression, prednisone for arthritis and
back problems, and Tylenol with codeine for pain. (Id. at 186-87.)
Plaintiff had reported annual earnings from 1981 to 2005, inclusive, 2007, and 2008.
(Id. at 120.) Her earnings steadily increased from 1999 to 2003. (Id.) Her highest annual
earnings were in 2003, $28,047.6 (Id.) They dropped to $9,258 in 2004 and $128 in 2005.
(Id.) She had no reported earnings in 2006. (Id.) In 2007, she earned $793; in 2008, she
earned $2,025. (Id.)
The medical records before the ALJ were, with the exception of those of Volunteers
in Medicine, generated pursuant to Plaintiff's worker's compensation case or her DIB
application.

6

The amounts have been rounded to the nearest dollar.
-8-

The records from Volunteers in Medicine begin on January 19, 2009, when Plaintiff
saw D. Dorrell, R.N., about a knot under her left arm. (Id. at 219.) Also, she was depressed,
having lost seven family members in the past three months. (Id.) The nurse could not feel
the knot. (Id.) Plaintiff was prescribed Wellbutrin to be taken daily for six weeks, at which
time Plaintiff was to stop taking it. (Id.)
Plaintiff consulted Nancy Noel, M.D., with Volunteers in Medicine on November 23
for complaints of back pain that was an eight on a ten-point scale and radiated down her legs.
(Id. at 218.) The pain was chronic, and had worsened over the past two months. (Id.)
Typically, it flared up when the weather was cold and damp. (Id.) She was applying for
disability.

(Id.)

She reported that she fractured her tailbone in 1979 and had

spondylolisthesis. (Id.) She could not bend, nor could she sit or stand for any length of time.
(Id.) She became stiff if she stayed in bed too long, and sometimes was unable to get out of
bed. (Id.) On examination, she had a decreased range of motion in her lumbosacral spine.
(Id.) Dr. Noel detected no radiculopathy. (Id.) Dr. Noel diagnosed acute and chronic back
pain, and noted that the pain was "prob[ably] arthritic." (Id.) She prescribed Plaintiff
Flexeril, Tylenol with codeine, prednisone, and Wellbutrin. (Id.) When Plaintiff telephoned
in February 2010 for refills, a nurse informed her that she would need to make an
appointment and should go to an emergency room if the pain was severe. (Id.)
The records relating to Plaintiff's worker's compensation claim begin when she
consulted David Brown, M.D., with the Orthopedic Center of St. Louis in November 2003
about her left thumb. (Id. at 232.) She had had pain in the thumb for the past two months

-9-

after injuring it at work. (Id.) X-rays revealed arthritis in the thumb. (Id.) Dr. Brown
recommended an injection; Plaintiff declined. (Id.) She was given a thumb splint and a
prescription for a non-steroidal anti-inflammatory medication. (Id.) She was to return in one
month. (Id.) She was released to return to work without restrictions. (Id.)
When Plaintiff saw Dr. Brown again in February 2004 she had no tenderness at the
base of the thumb. (Id. at 231.) Her symptoms were described as being improved. (Id.) She
was "minimally symptomatic." (Id.)
Plaintiff next saw Dr. Brown in November 2005, reporting increased pain at the base
of her left thumb and some pain at the base of her right thumb. (Id. at 228-29.) On
examination, she had "visible signs of osteoarthritis at the base of her left thumb." (Id. at
228.) Dr. Brown again recommended a steroid injection, thumb splint, and non-steroidal
anti-inflammatory medication. (Id.) Dr. Brown explained that the cause of her pain was "a
medical condition related to the natural aging process." (Id. at 229.) He released her to
return to full duty with no restrictions. (Id.) His recommendations and release did not
change after he saw Plaintiff again in December. (Id. at 227.)
On February 14, 2006, Plaintiff reported to Dr. Brown that she was continuing to have
pain at the base of her left thumb and was beginning to have pain at the dorsum of the left
wrist and to have numbness and tingling in her fingertips. (Id. at 225-26.) Her grip strength
in her left hand was eleven pounds and in her right hand was thirty-nine pounds. (Id. at 225.)
Dr. Brown recommended she have a magnetic resonance imaging (MRI) of her left wrist to

- 10 -

evaluate the soft tissues in that hand and have nerve conduction studies. (Id. at 226.) As
before, he released her to return to work without restrictions. (Id.)
After undergoing the MRI, Plaintiff returned to Dr. Brown on February 28. (Id. at
224.) The MRI revealed osteoarthritic changes at the base of her left thumb and osteoarthritic
changes at the lunocapitate articulation consistent with osteoarthritis. (Id.) Dr. Brown again
discussed with Plaintiff his opinion that her pain was attributable to osteoarthritic changes
and not to a work-related injury. (Id.)
Also pursuant to her worker's compensation claim, Plaintiff was examined by Jerome
F. Levy, M.D., in October 2004 and again in April 2006. (Id. at 211-16.) When seen by Dr.
Levy in 2004, Plaintiff reported that she was having pain and intermittent numbness in her
hands and wrists after doing hand-intensive work for the past two years. (Id. at 214.) Her
hands were frequently swollen and increasingly weak. (Id.) On examination, she had
tenderness in the dorsum of the left wrist and moderate discomfort with motion of both
wrists, the left worse than the right. (Id. at 215.) The left biceps and forearm were one
centimeter less in circumference than the right. (Id.) The left grip strength was weaker than
the right. (Id. at 215-16.) Dr. Levy diagnosed Plaintiff with chronic strain and overuse
syndrome in both wrists. (Id. at 216.)
When she saw Dr. Levy in 2006, Plaintiff reported that she was continuing to have
problems with both her wrists, including weakness. (Id. at 211.) She could not hold anything
for long before pain in her hands caused her to drop the items. (Id.) The more swollen her
hands were, the more painful. (Id.) She had had an MRI of her wrists a month earlier and

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been told that she has arthritis in her left thumb and wrist. (Id.) On examination, Plaintiff
had moderate discomfort with movement of her left wrist and tenderness on compression of
the left wrist. (Id. at 212.) There was no joint instability or grating on motion of any joint.
(Id. at 213.) Her left biceps were one centimeter less in circumference than her right; her left
forearm was one and one-half centimeter less in circumference than her right. (Id.) Her left
upper extremity was noticeably weaker than her left. (Id.) The strength of her left grip was
ten; the strength of her right grip was thirty. (Id.) She was right-handed. (Id.) She had
diminished sensation to pinprick on the tips of four fingers in her left hand. (Id.) Her deep
tendon reflexes were equal. (Id.) Phalen's and Tinel's signs were absent.7 (Id.) Dr. Levy's
diagnosis was of chronic strain in both wrists; overuse syndrome in both wrists; and
osteoarthritis in her left hand. (Id.) He opined that she had a twenty-five percent permanent
partial disability in her left upper extremity at the wrist and a fifteen percent permanent
partial disability in her right upper extremity at the wrist. (Id.)
Also before the ALJ was the report of Arjun Bhattacharya, M.D., who had examined
Plaintiff in April 2009 pursuant to her DIB application. (Id. at 197-203, 205-06.) At that
time, he had before him no medical records. (Id. at 197.) Plaintiff's chief complaints were
of pain and numbness in both wrists and of back problems. (Id.) She reported that she had
injured her hands at work; she had last worked in 2003. (Id.) The back pain had started in

7

Tinel's and Phalen's tests are used in the diagnosis of carpal tunnel syndrome. See Jonathan
Cluett, M.D., Carpal Tunnel Syndrome http://orthopedics.about.com/cs/carpaltunnel/a/carpaltunnel
(last visited September 9, 2013). A Tinel's sign is present when tingling in the fingers is made worse
by tapping the median nerve along its course in the wrist. Id. A Phalen's sign is present when pushing
the back of the hands together causes the complained-of symptoms. Id.
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the 1970s after she lifted a bed. (Id.) The pain was concentrated in the lumbosacral area.
(Id.) She further reported that she had no difficulty standing, sitting, and walking. (Id.) She
also reported that she could only walk approximately two blocks and stand for approximately
thirty minutes; she could not sit without discomfort. (Id.) She had difficulty bending and
stooping. (Id.) Her sleep was irregular. (Id.) During the day, she watched television and
did light housework. (Id.) She stated that she had been diagnosed with rheumatoid arthritis
and carpal tunnel syndrome. (Id. at 198.) The pain, however, was in her ring and little
fingers. (Id.) She did not have any numbness in her thumb, index, or middle fingers. (Id.)
She had difficulty with fine movements; she dropped things. (Id.) She also had difficulty
buttoning her clothes and holding a coffee cup. (Id.) She could not open a jar, and had to
hold onto a skillet with both hands. (Id.) She smoked one-half pack of cigarettes a day, and
occasionally drank alcohol. (Id.) She was 5 feet 1 inch tall and weighed 122 pounds. (Id.)
On examination, Plaintiff had a normal alignment of her back, but had discomfort on
deep palpation over the lumbar, sacral, and coccygeal areas. (Id. at 199.) She had a reduced
range of motion in her lumbar spine on flexion-extension and with lateral flexion. (Id. at
203.) She had a reduced range of motion in her hips due to back pain. (Id.) Straight leg
raises were limited to thirty to forty degrees in a supine position on either side.8 (Id. at 199,
203.) Straight leg raises were negative in a seated position. (Id. at 203.) There was

8

"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
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 (8th Cir. 2009) (internal quotations omitted).
- 13 -

tenderness over the lower end of the ulnar at the wrist joint in both hands. (Id. at 199.)
There was no evidence of carpal tunnel syndrome. (Id.) Phalen's and Tinel's signs were both
absent. (Id.) Her grip in both hands was 3/5 with weakness in the ring and little fingers.9
(Id.) There was a "somewhat diminished sensation in the distribution of the ulnar nerve in
both hands." (Id.) She had a normal gait and no difficulty in getting on and off the
examining table and in moving about the room. (Id.) She had normal coordination in her
fingers, but complained of pain in both hands. (Id.) She had a reduced range of motion in
both wrists. (Id. at 202.) X-rays of her lumbosacral spine showed disc space narrowing at
L5-S1 with grade 2 spondylolisthesis and spondylosis defects. (Id. at 205.) An x-ray of her
right wrist was unremarkable. (Id. at 206.) Dr. Bhattacharya's impression was of back pain,
primarily in the lumbosacral and coccygeal areas, with decreased range of motion in both
lower extremities; of wrist pain, primarily over the ulnar aspect of the wrists joints; and of
weakness of the ring and middle fingers of both hands. (Id. at 200.)
Pursuant to her DIB application, Plaintiff was again evaluated in June 2010. (Id. at
235-47.) After summarizing the foregoing medical records, Alan H. Morris, M.D., listed
Plaintiff's chief complaints as low back pain and bilateral wrist and hand pain. (Id. at 23536.) Plaintiff explained that she had been intermittently wearing an over-the-counter back
brace since her custom brace was destroyed by a house fire in 1986. (Id. at 236.)
Approximately every six months, her back pain flares up for two to three weeks, the most

9

Dr. Bhattacharya also listed a grip strength of 4/5 on the Range of Motion Values form. (Id.

at 202.)
- 14 -

recently being in May 2010. (Id.) When that happens, she takes prednisone and uses a cane.
(Id.) On a daily basis, she has constant pain and generally lies down for relief for two hours
every day. (Id.) She can sit for thirty minutes, stand for twenty, and walk for fifteen. (Id.)
She had been told in 1979 to limit her lifting to no more than five pounds. (Id.) Also during
a flare-up of her back pain, Plaintiff's husband helps her dress and bathe. (Id.) She does light
housework, but no vacuuming or lifting. (Id.) Because of her difficulties gripping things, she
does not drive. (Id.) She has pain in both wrists. (Id.) She has been told she has carpal
tunnel syndrome, but has not had surgery. (Id.) She has numbness in the fourth and fifth
fingers of both hands. (Id.) She has braces for both wrists, which she wears for one to two
weeks every two months. (Id. at 237.) She has difficulty holding objects and has pain when
she tries to grip anything tightly. (Id.) She takes prednisone intermittently. (Id.) She can
walk fifty feet without a cane, has a normal gait without a limp, and has a normal, erect
stance. (Id.) On examination, she could do a tandem gait, could take a few steps on her
heels, and refused to attempt toe walking and squatting because of back pain. (Id.) She could
independently get on and off the examining table and get out of a chair. (Id.) She had
"normal finger and hand control" and could "oppose the thumb to all digits." (Id.) She had
a 4/5 grip bilaterally. (Id.) She had no muscle spasms. (Id. at 237-38.) She could forward
flex to fifty degrees, extend to five degrees, and laterally bend to ten degrees. (Id. at 238,
247.) Straight leg raises were negative to ninety degrees when sitting and positive to sixty
degrees when supine. (Id. at 238.) She could sit up from a supine position without support,
but did complain of pain. (Id.) She had no atrophy in her hands, had normal strength in her

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hands, and had a full range of motion in both wrists. (Id. at 238, 246.) There was a
thickening and slight tenderness at the base of the left thumb and carpometacarpal joint on
the left but not on the right. (Id.) She had intact sensation in her hands and fingers. (Id.)
Dr. Morris's diagnosis was degenerative disc disease at L-5, S-1 with grade 2
spondylolisthesis and arthritis at the base of her left thumb. (Id.) He found no evidence of
rheumatoid arthritis or of carpal tunnel syndrome. (Id.)
Dr. Morris also completed a Medical Source Statement of Ability to Do Work-Related
Activities (Physical) after examining Plaintiff. (Id. at 240-45.) He assessed her as having the
ability to occasionally lift and carry up to ten pounds. (Id. at 240.) At any one time and
without interruption, she could sit for thirty minutes, stand for twenty, and walk for fifteen.
(Id. at 241.) For a total during an eight-hour work day, she could sit for three hours, stand
for two, and walk for one. (Id.) She did not need a cane to walk. (Id.) She was limited to
only occasionally reaching, handling, fingering, and feeling with either hand. (Id. at 242.)
She should never push or pull. (Id.) She was also limited to occasional use of either foot to
operate foot controls. (Id.) She could occasionally balance and climb stairs and ramps, but
should never crouch, crawl, kneel, stoop, or climb ropes, ladders, or scaffolds. (Id. at 243.)
She should never be exposed to unprotected heights or moving mechanical parts and should
not operate a motor vehicle. (Id. at 244.) She could perform such activities as shopping,
using public transportation, and preparing meals. (Id. at 245.) She should not sort, handle,
or use papers and files. (Id.)

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The ALJ's Decision
The ALJ first found that Plaintiff met the insured status requirements of the Act
through March 31, 2010, and had not engaged in substantial gainful activity during the period
from her amended alleged onset date of June 16, 2008, through her date last insured. (Id. at
18.) The ALJ next found that, through the date she was last insured, Plaintiff had severe
impairments of degenerative joint disease of the lumbar spine and arthritis in her wrists and
thumbs. (Id.) Her depression was not severe because it did not cause more than a mild
limitation in any of the three functional areas and did not cause any episodes of
decompensation of any extended duration. (Id. at 19.) Plaintiff did not have an impairment
or combination of impairments that met or medically equaled one of listing-level severity.
(Id.) Through the date last insured, Plaintiff had the residual functional capacity (RFC) to
perform light work with additional limitations of being able to only occasionally climb ramps
and stairs and of never climbing ladders, ropes, or scaffolds. (Id. at 20.) She was able to
only occasionally balance, stoop, kneel, crouch, or crawl. (Id.) She could not constantly
handle objects, but could do so frequently. (Id.) She must avoid concentrated exposure to
extremely cold temperatures, excess vibrations, and unprotected heights. (Id.)
In reaching his RFC finding, the ALJ considered Plaintiff's allegations about the extent
of the affect of her impairments on her ability to function and found them not to be fully
credible. (Id. at 20-22.) The ALJ first noted that the intermittent medical care sought by
Plaintiff was inconsistent with her complaints. (Id. at 21.) Recognizing that Plaintiff had
explained the infrequency by a lack of finances, the ALJ further noted that there was no

- 17 -

evidence that Plaintiff had sought low-cost or no-cost treatment or that she had been denied
treatment due to an inability to pay. (Id.) Also, Plaintiff continued to smoke. (Id.) Her daily
activities suggested that she was not as limited as she described. (Id.) Although she testified
that she had been limited in 1979 to lifting nothing heavier than five pounds, she had
described her job as an electrical solder as requiring that she lift up to fifty pounds. (Id.) The
ALJ noted that Dr. Morris had opined that Plaintiff should not lift or carry more than ten
pounds, but found such opinion to be inconsistent with his own examination findings. (Id.
at 21-22.)
The ALJ determined that with her RFC, Plaintiff was capable of performing her past
relevant work as a scheduler as that job is described in the DOT. (Id. at 22.) She was not,
therefore, disabled within the meaning of the Act at any time from June 16, 2008, through
March 31, 2010. (Id.)
Legal Standards
Under the Act, the Commissioner shall find a person disabled if the claimant is
"unable to engage in any substantial activity by reason of any medically determinable
physical or mental impairment," which must last for a continuous period of at least twelve
months or be expected to result in death. 42 U.S.C. § 1382c(a)(3)(A). Not only the
impairment, but the inability to work caused by the impairment must last, or be expected to
last, not less than twelve months. Barnhart v. Walton, 535 U.S. 212, 217-18 (2002).
Additionally, 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
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experience, engage in any other kind of substantial gainful work which exists in the national
economy, regardless of whether . . . a specific job vacancy exists for [her], or 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. § 404.1520; Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir.
2010); Gragg v. Astrue, 615 F.3d 932, 937 (8th Cir. 2010); 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 (8th Cir. 2006). First, the claimant
cannot be presently engaged in "substantial gainful activity." See 20 C.F.R. § 404.1520(b);
Hurd, 621 F.3d at 738. Second, the claimant must have a severe impairment. See 20 C.F.R.
§ 404.1520(c). The Act defines "severe impairment" as "any impairment or combination of
impairments which significantly limits [claimant's] physical or mental ability to do basic
work activities . . . ." Id.
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. § 404.1520(d) 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.
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§ 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) (internal quotations omitted).
Moreover, "'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 (quoting Lacroix, 465 F.3d at 887); accord
Partee v. Astrue, 638 F.3d 860, 865 (8th Cir. 2011).
In determining a claimant's RFC, "'the ALJ first must evaluate the claimant's
credibility.'" Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007) (quoting 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, frequency and intensity of the
pain; [3] precipitating and aggravating factors; [4] dosage, effectiveness and side effects of
medication; [5] functional restrictions.'" Id. (quoting Polaski v. Heckler, 739 F.2d 1320,
1322 (8th Cir. 1984)). "'The credibility of a claimant's subjective testimony is primarily for
the ALJ to decide, not the courts.'" Id. (quoting Pearsall, 274 F.3d at 1218). After
considering the Polaski 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).

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At step four, the ALJ determines "'whether a claimant's impairments keep her from
doing past relevant work.'" Wagner v. Astrue, 499 F.3d 842, 853 (8th Cir. 2007) (quoting
Jones v. Chater, 86 F.3d 823, 826 (8th Cir. 1996)). If "the claimant has the [RFC] to do
either the specific work previously done or the same type of work as it is generally performed
in the national economy, the claimant is found not to be disabled." Lowe v. Apfel, 226 F.3d
969, 973 (8th Cir. 2000). 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 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).
If the claimant is prevented by her impairment from doing any other work, the ALJ
will find the claimant to be disabled.
The ALJ's decision 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)); accord Dunahoo v. Apfel, 241 F.3d 1033, 1037 (8th Cir.
2001). "'Substantial evidence is relevant evidence that a reasonable mind would accept as
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adequate to support the Commissioner's conclusion.'" Partee, 638 F.3d at 863 (quoting Goff
v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)). When reviewing the record to determine
whether the Commissioner's decision is supported by substantial evidence, however, the
Court must consider evidence that supports the decision and evidence that fairly detracts from
that decision. Moore, 623 F.3d at 602; Jones v. Astrue, 619 F.3d 963, 968 (8th Cir. 2010);
Finch, 547 F.3d at 935. The Court may not reverse that decision merely because substantial
evidence would also support an opposite conclusion, Dunahoo, 241 F.3d at 1037, or it might
have "come to a different conclusion," Wiese, 552 F.3d at 730. "'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.'" Partee, 638 F.3d at 863 (quoting Goff, 421 F.3d at 789). 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).
Discussion
Plaintiff argues that the ALJ erred by (1) defining her past relevant work as light work;
(2) including in his RFC findings that she could frequently perform gross manipulation when
the medical records only supported a conclusion that she could occasionally perform such;
and (3) discounting the Medical Source Statement (MSS) of Dr. Morris.
Past Relevant Work. Plaintiff first argues that the ALJ erred by relying on the
testimony of the VE that she could perform her job as a scheduler because that job was listed
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in the DOT as "'closer to light.'" (Pl.'s Brief at 8, 9, ECF No. 13; Pl.'s Reply Brief at 2, ECF
No. 19.) Plaintiff misapprehends the record.10
In response to a question by the ALJ about a hypothetical claimant who was "limited
to performing light exertion level work," see Record at 49 (emphasis added), the VE replied
that this claimant could perform Plaintiff's past relevant work as a scheduling supervisor, not
as the she performed it, but as it was described in the DOT. "The [DOT] definitions 'are
simply generic job descriptions that offer the approximate maximum requirements for each
position, rather than their range.'" Hillier v. S.S.A., 486 F.3d 359, 366 (8th Cir. 2007)
(quoting Wheeler v. Apfel, 224 F.3d 891, 897 (8th Cir. 2000)).

As noted by the

Commissioner, the VE did not cite the DOT numbers for the job of scheduling supervisor.
The Commissioner did cite two numbers, DOT 215.367-014, for a personnel scheduler, see
DOT, 1991 WL 671906 (G.P.O. 1991), and DOT 221.367-026, for a line-up worker, see
DOT, 1991 WL 672012 (G.P.O. 1991). The first is sedentary work, see 1991 WL 671906,
and the second is light work, see 1991 WL 672012.
The ALJ's reliance on the VE's testimony about how Plaintiff's past relevant work was
defined in the DOT is not fatally undermined by the VE's failure to cite the two numbers. In
Hulsey v. Astrue, 622 F.3d 917, 921-23 (8th Cir. 2010), the Eighth Circuit Court of Appeals
was able to meaningfully review a claimant's argument that she was unable to perform some
unskilled work which was a part of the jobs cited by the VE. In that case also, the VE had

10

Plaintiff cites page 55 of the Record in support of her reference to "closer to light." Page
55 is a Disability Determination and Transmittal denying Plaintiff's application. After a thorough
review of the VE's testimony, the Court could not locate the quoted phrase.
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not specified the DOT codes for the occupations she had identified as being able to be
performed by the claimant. The claimant, however, was able to cite to the six different DOT
listings for the general occupation described by the VE, including to five DOT listings which
did not conform to the demands of the job relied on by VE. Id. at 923. The Eighth Circuit
found it "evident" that the VE "had in mind" the sixth DOT listing, which did include the
demands required by the claimant's RFC. Id. Similarly, in the instant case, there are two
DOT listings for scheduling positions cited by the VE which include the light exertional
requirement specified by the ALJ in his hypothetical question or the more restrictive
sedentary exertional requirement.
Residual Functional Capacity. Plaintiff next challenges the ALJ's conclusions about
her RFC. These conclusions are that Plaintiff can perform light work with additional
limitations of being able to frequently, but not constantly, handle objects and occasionally
balance, stoop, kneel, crouch, crawl, and climb ramps and stairs. (R. at 20.) She can never
climb ladders, ropes, or scaffolds and has to avoid concentrated exposure to extremely cold
temperatures, excess vibrations, and unprotected heights. (Id.)
"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
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description of her or his limitations, as well as medical records, and observations of treating
physicians and others." Roberson, 481 F.3d at 1023. See also Social Security Ruling 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").

Plaintiff contends that only an ability to occasionally handle objects was established,
not, as the ALJ found, an ability to frequently do so. "'Frequent' means occurring from onethird to two-thirds of the time." Social Security Ruling 83-10, 1983 WL 31251, *6 (S.S.A.
1983).
As noted by Plaintiff, Dr. Levy diagnosed Plaintiff with chronic strain in both wrists
and overuse syndrome and Dr. Brown diagnosed her with osteoarthritis.11 As noted by the
Commissioner, Drs. Levy's and Brown's treatment and evaluation of Plaintiff were pursuant
to a worker's compensation claim and neither saw her after April 2006 – more than two years
before her amended alleged disability onset date. After April 2006, in 2007 and 2008,
Plaintiff worked part-time as a bartender. This job, as defined in the DOT, 312.474-010,
requires frequent handling. See DOT, 1991 WL 672698 (G.P.O. 1991). And, although
Plaintiff worked at this job part-time, she did not attribute the number of hours she worked
or the duration of her employment to any difficulties with her wrists.

11

Plaintiff states that Dr. Brown gave her injections in her thumb. The cited page, Record at
235, is the first page of Dr. Morris' report. Dr. Brown's records reflect that he recommended an
injection; however, Plaintiff declined. (R. at 232.)
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After her alleged disability onset date, Plaintiff sought medical treatment twice. The
first time was in January 2009 and was for a knot under her left arm and depression. The
second time was in November 2009 and was for back pain. See Edwards v. Barnhart, 314
F.3d 964, 967 (8th Cir. 2003) (finding that claimant's failure to seek regular medical care
"seriously undermine[d] her case"). Plaintiff argues that the infrequency of her treatment is
due to her lack of finances. She testified, however, that she had been treated twice in 2007
at the same clinic she attended in January 2009. She did not testify that she had ever been
denied medical attention due to an inability to pay. Moreover, she continued to smoke at least
one-half pack of cigarettes a day. See Goff, 421 F.3d at 792 (failure to take medication was
relevant to credibility determination given lack of any evidence that failure was attributable
to lack of finances); Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999) (claimant's argument
that he could not afford medical care was appropriately discounted given lack of any evidence
that he was denied low-cost or free medical care and evidence that he continued to smoke
three packs of cigarettes a day).
Plaintiff cites the findings of Dr. Bhattacharya in support of her argument.12 Dr.
Bhattacharya found that Plaintiff had a "somewhat diminished sensation in the distribution
of the ulnar nerve in both hands," a reduced range of motion in both wrists, a grip strength
of 3/5 in both hands,13 and weakness in her ring and little fingers. He also found that she had

12

Her argument relying on Dr. Morris's findings is addressed below.

13

But see note 9, supra.
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normal coordination in her fingers. Fourteen months later, Dr. Morris found she had normal
strength in both hands, no atrophy in either hand, and a full range of motion in both wrists.
"'It is the ALJ's responsibility to determine a claimant's RFC based on all relevant
evidence, including medical records, observations of treating physicians and others, and
claimant's own descriptions of [her] limitations.'"14 Tellez v. Barnhart, 403 F.3d 953, 957
(8th Cir. 2005) (quoting Pearsall, 274 F.3d at 1217); accord Perks v. Astrue, 687 F.3d 1086,
1092 (8th Cir. 2012). "'[T]he burden of persuasion to . . . demonstrate RFC remains on the
claimant.'" Martise v. Astrue, 641 F.3d 909, 923 (8th Cir. 2011) (quoting Vossen v. Astrue,
612 F.3d 1011, 1016 (8th Cir. 2010)).
In the instant case, the ALJ considered the medical records, including those of Dr.
Morris, see discussion below, and Plaintiff's descriptions of her limitations, including her
testimony and her application information, and concluded that she had the RFC to frequently,
but not constantly, handle objects. This conclusion is supported by substantial evidence on
the record as a whole, and Plaintiff has not carried her burden of persuading the Court
otherwise.
Dr. Morris' Medical Source Statement. Dr. Morris reported on a MSS that Plaintiff
was limited to only occasional use of her hands to reach, handle, finger, and feel. Plaintiff
argues that the ALJ erred by not incorporating this more restrictive use in his RFC findings.
As noted by the Commissioner, "the ALJ is not required to rely entirely on a particular
physician's opinion or choose between the opinions [of] any of the claimant's physicians."

14

The Court notes that Plaintiff does not challenge the ALJ's credibility assessment.
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Martise, 641 F.3d at 927 (alteration in original) (internal quotations omitted). Nor is the ALJ
required to rely on a physician's opinion when that opinion is inconsistent with the
physician's examination notes, see Davidson v. Astrue, 578 F.3d 838, 843 (8th Cir. 2009),
or when that opinion is based on the claimant's "self-reported symptoms," McCoy v. Astrue,
648 F.3d 605, 617 (8th Cir. 2011). See Charles v. Barnhart, 375 F.3d 777, 783-84 (8th Cir.
2004) (rejecting claimant's argument that ALJ erred by not giving greater weight to treating
physician's opinion that she could not stand for longer than four hours in an eight-hour work
day when that limitation was not supported by clinical and laboratory findings or by the
physician's own treatment notes).
Dr. Morris's examination notes of Plaintiff reflect that she had normal strength in both
hands, a full range of motion in both wrists, and intact sensation in her hands and fingers.
She did not, as reported by Plaintiff, have carpal tunnel syndrome. Regardless, in his MSS
he limited her to only occasional use of her hands and fingers. The reliance of this restriction
on Plaintiff's own description of her limitations is reflected in other restrictions in the MSS.
For instance, Plaintiff reported that she would sit for thirty minutes, stand for twenty, and
walk for fifteen. These limitations were incorporated by Dr. Morris in his MSS. Plaintiff
reported that she had to lie down for two hours every day. This requirement was incorporated
by Dr. Morris in his MSS.
In concluding that Plaintiff could frequently handle objects, the ALJ gave more
credence to Dr. Morris's examination findings than to his MSS conclusions. As explained
above, this is not error. See Renstrom v. Astrue, 680 F.3d 1057, 1064 (8th Cir. 2012)
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(finding that an ALJ does not err by not giving a physician's opinion about a claimant's RFC
controlling weight when that opinion is "largely based on [the claimant's] subjective
complaints").
Conclusion
Considering all 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.
"If substantial evidence supports the ALJ's decision, [the Court] will not reverse the 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). Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that the decision of the Commissioner is AFFIRMED
and that this case is DISMISSED.
An appropriate Order of Dismissal shall accompany this Memorandum and Order.

/s/ Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE
Dated this 19th day of September, 2013.

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