Ahlstrom v. Colvin
MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that the relief sought by Plaintiff in her Complaint and Brief in Support of Complaint (Docs. 1 , 19 ) is DENIED; IT IS ORDERED that a separate judgment be entered incorporating this Memorandum and Order. Signed by Magistrate Judge Noelle C. Collins on 9/23/2014. (NEB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
MEGAN A. AHLSTROM,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Case No. 4:13CV478NCC
MEMORANDUM AND ORDER
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision
of the Commissioner denying the application of Megan A. Ahlstrom (Plaintiff) for Disability
Insurance Benefits (DIB) under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 401 et
seq. Plaintiff has filed a brief in support of the Complaint. (Doc. 19). Defendant has filed a
brief in support of the Answer. (Doc. 28). The parties have consented to the jurisdiction of the
undersigned United States Magistrate Judge pursuant to Title 28 U.S.C. § 636(c). (Doc. 27).
Plaintiff filed her application for DIB, alleging a disability onset date of January 7, 2007.
(Tr. 13, 144-47). Plaintiff’s applications were denied and she requested a hearing before an
Administrative Law Judge (ALJ). (Tr. 92, 94-95). After two hearings, in a decision dated
October 18, 2011, the ALJ found Plaintiff not disabled. (Tr. 19-29). Plaintiff filed a request for
Carolyn W. Colvin became Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, she should be substituted for
Michael J. Astrue as the defendant. No further action need be taken to continue this suit by
reason of the last sentence of § 205(g) of the Act.
review with the Appeals Council, which denied Plaintiff’s request on January 8, 2013. (Tr. 1-6).
As such, the ALJ’s decision stands as the final decision of the Commissioner.
Under the Social Security Act, the Commissioner has established a five-step process for
determining whether a person is disabled. 20 C.F.R. §§ 416.920, 404.1529. “‘If a claimant fails
to meet the criteria at any step in the evaluation of disability, the process ends and the claimant is
determined to be not disabled.’” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting
Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the
claimant first cannot be engaged in “substantial gainful activity” to qualify for disability benefits.
20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant must have a severe impairment. 20
C.F.R. §§ 416.920(c), 404.1520(c). The Social Security 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. “The sequential evaluation process may be
terminated at step two only when the claimant’s impairment or combination of impairments
would have no more than a minimal impact on [his or] her ability to work.” Page v. Astrue, 484
F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir.
2001) (citing Nguyen v. Chater, 75 F.3d 429, 430-31 (8th Cir. 1996)).
Third, the ALJ must determine whether the claimant has an impairment which meets or
equals one of the impairments listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d);
pt. 404, subpt. P, app. 1. If the claimant has one of, or the medical equivalent of, these
impairments, then the claimant is per se disabled without consideration of the claimant’s age,
education, or work history. See id.
Fourth, the impairment must prevent the claimant from doing past relevant work. 20
C.F.R. §§ 416.920(f), 404.1520(f). The burden rests with the claimant at this fourth step to
establish his or her Residual Functional Capacity (RFC). See Steed v. Astrue, 524 F.3d 872, 874
n.3 (8th Cir. 2008) (“Through step four of this analysis, the claimant has the burden of showing
that she is disabled.”); Eichelberger, 390 F.3d at 590-91; Masterson v. Barnhart, 363 F.3d 731,
737 (8th Cir. 2004); Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000). The ALJ will
review a claimant’s RFC and the physical and mental demands of the work the claimant has done
in the past. 20 C.F.R. § 404.1520(f).
Fifth, the severe impairment must prevent the claimant from doing any other work. 20
C.F.R. §§ 416.920(g), 404.1520(g).
At this fifth step of the sequential analysis, the
Commissioner has the burden of production to show evidence of other jobs in the national
economy that can be performed by a person with the claimant’s RFC. See Steed, 524 F.3d at
874 n.3; Young, 221 F.3d at 1069 n.5. If the claimant meets these standards, the ALJ will find
the claimant to be disabled. “The ultimate burden of persuasion to prove disability, however,
remains with the claimant.” Id. See also Harris v. Barnhart, 356 F.3d 926, 931 n.2 (8th Cir.
2004) (citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)); Stormo v. Barnhart, 377 F.3d 801,
806 (8th Cir. 2004) (“The burden of persuasion to prove disability and to demonstrate RFC
remains on the claimant, even when the burden of production shifts to the Commissioner at step
five.”); Charles v. Barnhart, 375 F.3d 777, 782 n.5 (8th Cir. 2004) (“[T]he burden of production
shifts to the Commissioner at step five to submit evidence of other work in the national economy
that [the claimant] could perform, given her RFC.”). Even if a court finds that there is a
preponderance of the evidence against the ALJ’s decision, the decision must be affirmed if it is
supported by substantial evidence. See Clark v. Heckler, 733 F.2d 65, 68 (8th Cir. 1984).
“Substantial evidence is less than a preponderance but is enough that a reasonable mind would
find it adequate to support the Commissioner’s conclusion.” Krogmeier v. Barnhart, 294 F.3d
1019, 1022 (8th Cir. 2002). See also Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007). In Bland
v. Bowen, 861 F.2d 533, 535 (8th Cir. 1988), the Eighth Circuit Court of Appeals held:
The concept of substantial evidence is something less than the weight of the
evidence and it allows for the possibility of drawing two inconsistent conclusions,
thus it embodies a zone of choice within which the Secretary may decide to grant
or deny benefits without being subject to reversal on appeal.
See also Lacroix v. Barnhart, 465 F.3d 881, 885 (8th Cir. 2006) (“[W]e may not reverse merely
because substantial evidence exists for the opposite decision.”) (quoting Johnson v. Chater, 87
F.3d 1015, 1017 (8th Cir. 1996)); Hartfield v. Barnhart, 384 F.3d 986, 988 (8th Cir. 2004)
(“[R]eview of the Commissioner’s final decision is deferential.”).
It is not the job of the district court to re-weigh the evidence or review the factual record
de novo. See Cox, 495 F.3d at 617; Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005);
McClees v. Shalala, 2 F.3d 301, 302 (8th Cir. 1993); Murphy v. Sullivan, 953 F.2d 383, 384 (8th
Cir. 1992). Instead, the district court must simply determine whether the quantity and quality of
evidence is enough so that a reasonable mind might find it adequate to support the ALJ’s
conclusion. See Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing McKinney v. Apfel,
228 F.3d 860, 863 (8th Cir. 2000)). Weighing the evidence is a function of the ALJ, who is the
fact-finder. See Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir. 1987). See also Onstead v.
Sullivan, 962 F.2d 803, 804 (8th Cir. 1992) (holding that an ALJ’s decision is conclusive upon a
reviewing court if it is supported by “substantial evidence”). Thus, an administrative decision
which is supported by substantial evidence is not subject to reversal merely because substantial
evidence may also support an opposite conclusion or because the reviewing court would have
decided differently. See Krogmeier, 294 F.3d at 1022. See also Eichelberger, 390 F.3d at 589;
Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000) (quoting Terrell v. Apfel, 147 F.3d 659, 661
(8th Cir. 1998)); Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir. 2001).
To determine whether the Commissioner’s final decision is supported by substantial
evidence, the court is required to review the administrative record as a whole and to consider:
(1) Findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating physicians;
(4) The subjective complaints of pain and description of the claimant’s physical
activity and impairment;
(5) The corroboration by third parties of the claimant’s physical impairment;
(6) The testimony of vocational experts based upon proper hypothetical questions
which fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dep’t of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980); Cruse v.
Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989).
Additionally, an ALJ’s decision must comply “with the relevant legal requirements.”
Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008).
The Social Security Act defines disability as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or has lasted or can be expected to last for a continuous period
of not less than 12 months.” 42 U.S.C. § 416(i)(1)(A); 42 U.S.C. § 423(d)(1)(A). “While the
claimant has the burden of proving that the disability results from a medically determinable
physical or mental impairment, direct medical evidence of the cause and effect relationship
between the impairment and the degree of claimant’s subjective complaints need not be
produced.” Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). When evaluating evidence
of pain, the ALJ must consider:
(1) the claimant’s daily activities;
(2) the subjective evidence of the duration, frequency, and intensity of the
(3) any precipitating or aggravating factors;
(4) the dosage, effectiveness, and side effects of any medication; and
(5) the claimant’s functional restrictions.
Baker v. Sec’y of Health & Human Servs., 955 F.2d. 552, 555 (8th Cir. 1992); Polaski, 739 F.2d
The absence of objective medical evidence is just one factor to be considered in
evaluating the plaintiff’s credibility. See id. The ALJ must also consider the plaintiff’s prior
work record, observations by third parties and treating and examining doctors, as well as the
plaintiff’s appearance and demeanor at the hearing. See Polaski, 739 F.2d at 1322; Cruse, 867
F.2d at 1186.
The ALJ must make express credibility determinations and set forth the inconsistencies in
the record which cause him or her to reject the plaintiff’s complaints. See Guilliams, 393 F.3d at
801; Masterson, 363 F.3d at 738; Lewis v. Barnhart, 353 F.3d 642, 647 (8th Cir. 2003); Hall v.
Chater, 62 F.3d 220, 223 (8th Cir. 1995). It is not enough that the record contains
inconsistencies; the ALJ must specifically demonstrate that he or she considered all of the
evidence. Robinson v. Sullivan, 956 F.2d 836, 841 (8th Cir. 1992); Butler v. Sec’y of Health &
Human Servs., 850 F.2d 425, 429 (8th Cir. 1988). The ALJ, however, “need not explicitly
discuss each Polaski factor.” Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir. 2004). See
also Steed, 524 F.3d at 876 (citing Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000)). The ALJ
need only acknowledge and consider those factors. See id. Although credibility determinations
are primarily for the ALJ and not the court, the ALJ’s credibility assessment must be based on
substantial evidence. See Rautio v. Bowen, 862 F.2d 176, 179 (8th Cir. 1988); Millbrook v.
Heckler, 780 F.2d 1371, 1374 (8th Cir. 1985).
RFC is defined as what the claimant can do despite his or her limitations, 20 C.F.R. §
404.1545(a)(1), and includes an assessment of physical abilities and mental impairments. 20
C.F.R. § 404.1545(b)-(e). The Commissioner must show that a claimant who cannot perform his
or her past relevant work can perform other work which exists in the national economy. See
Karlix v. Barnhart, 457 F.3d 742, 746 (8th Cir. 2006); Nevland, 204 F.3d at 857 (citing McCoy
v. Schweiker, 683 F.2d 1138, 1146-47 (8th Cir. 1982) (en banc)). The Commissioner must first
prove that the claimant retains the RFC to perform other kinds of work. See Goff, 421 F.3d at
790; Nevland, 204 F.3d at 857. The Commissioner has to prove this by substantial evidence.
Warner v. Heckler, 722 F.2d 428, 431 (8th Cir. 1983). Second, once the plaintiff’s capabilities
are established, the Commissioner has the burden of demonstrating that there are jobs available
in the national economy that can realistically be performed by someone with the plaintiff’s
qualifications and capabilities. See Goff, 421 F.3d at 790; Nevland, 204 F.3d at 857.
To satisfy the Commissioner’s burden, the testimony of a vocational expert (VE) may be
used. An ALJ posing a hypothetical to a VE is not required to include all of a plaintiff’s
limitations, but only those which he finds credible. See Goff, 421 F.3d at 794 (“[T]he ALJ
properly included only those limitations supported by the record as a whole in the
hypothetical.”); Rautio, 862 F.2d at 180.
Use of the Medical-Vocational Guidelines is
appropriate if the ALJ discredits the plaintiff’s subjective complaints of pain for legally
sufficient reasons. See Baker v. Barnhart, 457 F.3d 882, 894-95 (8th Cir. 2006); Carlock v.
Sullivan, 902 F.2d 1341, 1343 (8th Cir. 1990); Hutsell v. Sullivan, 892 F.2d 747, 750 (8th Cir.
The issue before the court is whether substantial evidence supports the Commissioner’s
final determination that Plaintiff was not disabled. See Onstead, 962 F.2d at 804. Thus, even if
there is substantial evidence that would support a decision opposite to that of the Commissioner,
the court must affirm her decision as long as there is substantial evidence in favor of the
Commissioner’s position. See Cox, 495 F.3d at 617; Krogmeier, 294 F.3d at 1022.
Plaintiff, who was 32 years old on her alleged onset date, testified she had a bachelor’s
degree in archeology and religion, and, while in college, she received assistance through the
Center for Students with Disabilities; an individual helped her schedule her classes; she received
her books on tape; she had extra time to complete her exams; and she was able to take her exams
orally. (Tr. 78-79). Plaintiff further testified that pain, fatigue, and “mind fog” limited her
ability to work; she could lift “maybe” 10 pounds and walk for “a while” before she gets fatigued
and has to sit; she can stand for 5-10 minutes at a time; she did not have any limits in how long
she could sit; and she had to lie down and rest 4-6 times a day for 15 minutes to 2 hours. (Tr. 41,
64, 68-69). She also testified that her pain is normally 7-8 on a 10-point scale. (Tr. 70).
The ALJ found Plaintiff last met the insured status requirement on September 30, 2007;
she had not engaged in substantial gainful activity from her alleged onset date, January 7, 2007,
through her last insured date; she had the severe impairments of fibromyalgia and post-traumatic
stress disorder (PTSD); and Plaintiff did not have an impairment or combination of impairment
that met or medically equaled the severity of a listed impairment through the date she was last
insured. The ALJ found that Plaintiff had the following RFC: she could perform a limited range
of light work, in that she could lift and/or carry 20 pounds occasionally and 10 pounds
frequently; she could stand and/or walk 6 out of 8 hours; she had no sitting limit; and she could
occasionally climb stairs and ramps, never climb ladders, ropes, or scaffolds. The ALJ further
found that Plaintiff could “do no more than frequent balancing, bending, stooping, or crouching;
no more than occasional crawling; avoid exposure to unprotected heights, cold weather, and
humidity; was limited to simple tasks and instructions only; and no more than occasional
interaction with the public, coworkers, and supervisors.” The ALJ concluded that Plaintiff was
unable to perform any past relevant work; there were jobs in the national economy which a
person of Plaintiff’s age and education and with her RFC could perform; and, therefore, Plaintiff
was not disabled.
Plaintiff argues the ALJ’s decision is not supported by substantial evidence because the
ALJ failed to follow the de minimus standard at Step 2 of the sequential evaluation process, and
found Plaintiff’s chronic fatigue was not severe. Plaintiff argues the ALJ made a non-severe
finding despite evidence which “easily satisfie[d] the standard of at least a ‘slight abnormality’
with a ‘minimal effect’ on work-related functioning.”2 (Doc. 19 at 10-11).
The court will first consider the ALJ=s credibility determination, as the ALJ=s evaluation
of Plaintiff=s credibility was essential to the ALJ=s determination of other issues, including the
severity of Plaintiff’s fatigue. See Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir. 2010) (A[The
plaintiff] fails to recognize that the ALJ's determination regarding her RFC was influenced by his
determination that her allegations were not credible.@) (citing Tellez v. Barnhart, 403 F.3d 953,
957 (8th Cir. 2005)); 20 C.F.R. '' 404.1545, 416.945 (2010). As set forth more fully above, the
In her Brief in Support of Complaint, Plaintiff does not challenge the ALJ’s findings regarding
her post-traumatic stress disorder or in regard to her testimony, at the hearing, regarding her
“mind fog.” (Doc. 19).
ALJ=s credibility findings should be affirmed if they are supported by substantial evidence on the
record as a whole; a court cannot substitute its judgment for that of the ALJ. See Guilliams v.
Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); Hutsell, 892 F.2d at 750; Benskin, 830 F.2d at 882.
To the extent that the ALJ did not specifically cite Polaski, other case law, and/or Regulations
relevant to a consideration of Plaintiff=s credibility, this is not necessarily a basis to set aside an
ALJ=s decision where the decision is supported by substantial evidence. Randolph v. Barnhart,
386 F.3d 835, 842 (8th Cir. 2004); Wheeler v. Apfel, 224 F.3d 891, 895 n.3 (8th Cir. 2000);
Reynolds v. Chater, 82 F.3d 254, 258 (8th Cir. 1996); Montgomery v. Chater, 69 F.3d 273, 275
(8th Cir. 1995). Additionally, an ALJ need not methodically discuss each Polaski factor if the
factors are acknowledged and examined prior to making a credibility determination; where
adequately explained and supported, credibility findings are for the ALJ to make. See Lowe v.
Apfel, 226 F.3d 969, 972 (8th Cir. 2000). See also Tucker v. Barnhart, 363 F.3d 781, 783 (8th
Cir. 2004) (AThe ALJ is not required to discuss each Polaski factor as long as the analytical
framework is recognized and considered.@); Strongson, 361 F.3d at 1072; Brown v. Chater, 87
F.3d 963, 966 (8th Cir. 1996). In any case, A[t]he credibility of a claimant=s subjective testimony
is primarily for the ALJ to decide, not the courts.@ Pearsall v. Massanari, 274 F.3d 1211, 1218
(8th Cir. 2001). AIf an ALJ explicitly discredits the claimant=s testimony and gives good reason
for doing so, [a court] will normally defer to the ALJ=s credibility determination.@ Gregg v.
Barnhart, 354 F.3d 710, 714 (8th Cir. 2003). See also Halverson v. Astrue, 600 F.3d 922, 932
(8th Cir. 2010); Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). For the following reasons,
the court finds that the reasons offered by the ALJ in support of his credibility determination are
based on substantial evidence.
First, the ALJ considered that that the objective medical did not support Plaintiff’s
See Ramirez v. Barnhart, 292 F.3d 576 (8th Cir. 2002) (while ALJ may not
disregard subjective pain allegations solely because they are not fully supported by objective
medical evidence, ALJ is entitled to make factual determination that claimant=s subjective pain
complaints are not credible in light of objective medical evidence) (citing 20 C.F.R. ' ' 416.908,
416.929). As considered by the ALJ, Plaintiff alleged she experienced debilitating fatigue and
physical pain, which made it difficult for her to walk. Nonetheless, on October 8, 2007, it was
reported that she had normal strength and she was intact neurologically. (Tr. 293). On March
13, 2008, her musculoskeletal neurological systems were intact. (Tr. 294). On May 18, 2008,
she had full range of motion, no edema, and 5/5 strength. (Tr. 308). On August 4, 2008,
Plaintiff had no weakness or numbness; her strength and gait were normal, and “nothing
appear[ed] suspicious.” (Tr. 372). A September 22, 2008 nerve conduction study was normal.
(Tr. 382). Examination of this date showed normal motor, sensory, and coordination exams, and
normal gait and reflexes.
Noting there was no electrophysiologic evidence of primary
neuromuscular disease and no evidence of demyelinating disease or an endocrine disturbance,
the impression was probable fibromyalgia, with chronic fatigue syndrome. (Tr. 386).
On October 24, 2008, a motor exam showed normal muscle bulk, tone, and strength, and
no atrophy or abnormal movements; Plaintiff’s sensory exam was symmetrical to touch and
vibration; her finger-nose and individual leg movements were normal; her gait was smooth; and
her reflexes were “2 and symmetrical”; and the impression was “nonspecific muscle pain and
fatigue syndrome consistent with fibromyalgia and chronic fatigue.” (Tr. 380-81). On March
11, 2009, Plaintiff’s motor exam revealed normal muscle bulk, tone, and strength; she did have
“significant tenderness over the cervical and thoracic regions and the upper shoulders, mid back
and some in the lower legs”; her sensory and coordination exams were normal; her gait was
smooth; her reflexes were “2 and symmetrical.” The impression was “nonspecific muscle pain
and fatigue syndrome consistent with fibromyalgia and chronic fatigue.” (Tr. 390).
In May 2009, a musculoskeletal examination showed normal range of motion and no
edema, although multiple tender points were noted; as for her neurological exam, Plaintiff was
alert and oriented, had normal strength, displayed normal reflexes, had no cranial nerve deficit,
and had normal coordination; and her speech, behavior, and thought content were normal. (Tr.
415-16). On June 9, 2009, when Plaintiff had a routine gynecological exam, examination of
Plaintiff’s extremities showed intact distal pulses, equal movement in extremities, no edema or
tenderness in the calves or thighs, normal strength, and normal tone. It was noted, on this date,
that there were “no associated orders” for Plaintiff’s fibromyalgia. (Tr. 440-41). On July 11,
2009, Plaintiff had normal range of motion, no edema or tenderness, and normal muscle tone,
and her coordination was normal. (Tr. 542). On August 14, 2009, Plaintiff was negative for
myalgias and back pain, had normal range of motion, and had no cranial nerve deficit. (Tr. 54748). On February 15, 2010, she was not in any distress, and had normal range of motion. (Tr.
557-58). Again, on February 23, 2010, Plaintiff was negative for myalgias and back and joint
pain; examination of her neurologically showed she was negative for dizziness, tingling,
weakness, and headaches. She had normal range of motion and no cervical adenopathy, and an
EKG was “essentially normal.” (Tr. 565-66). On June 16, 2010, Plaintiff had normal range of
motion, and she was negative for dizziness and headaches. (Tr. 576).
As for Plaintiff’s allegation that she could not work because of “mind fog,” forgetfulness,
and difficulty concentrating, as noted by the ALJ, Plaintiff’s mental-status examinations were
For example, she often exhibited normal attention,
concentration, and fund of knowledge. (Tr. 380, 386, 389, 301). Additionally, her memory was
intact on numerous occasions. (Tr. 331, 380, 386, 389, 391, 394). Plaintiff was also often
reported to be alert, pleasant, cooperative, and oriented at her appointments. Significantly, on
August 4, and October 24, 2008, when Plaintiff reported having “brain fog,” and feeling
“mentally foggy since about 2000,” respectively, a neurological examination showed she was
alert, she was able to answer questions normally, her speech was fluent, and “nothing appear[ed]
suspicious.” (Tr. 372, 380). Then on September 22, 2008, Plaintiff was awake, alert, oriented,
and had normal memory, concentration, and fund of knowledge. (Tr. 394). The court finds,
therefore, that substantial evidence supports the ALJ’s determination that objective medical
evidence did not support Plaintiff’s allegations.
Second, the ALJ considered Plaintiff generally received conservative treatment.
Conservative treatment and no surgery are consistent with discrediting a claimant=s allegation of
See Pelkey v. Barnhart, 433 F.3d 575, 579 (8th Cir. 2006)
(affirming ALJ’s credibility determination based in part on claimant’s doctors having
recommended exercise and medication but never surgery); Black v. Apfel, 143 F.3d 383, 386
(8th Cir. 1998). Specifically, in October 2008, Alan W. Martin, M.D., encouraged Plaintiff to
proceed with a low intensity regular aerobic exercise program, and, in March 2009, encouraged
her to continue with regular exercise. (Tr. 381, 390). See Blakeman v. Astrue, 509 F.3d 878,
883 (8th Cir. 2007) (doctor’s advice to become more physically active was inconsistent with
Third, the ALJ considered that, although Plaintiff alleged she used a cane, none of her
providers prescribed an assistive device for ambulation. (Tr. 25). In fact, a doctor’s July 23,
2010 notes reflect that Plaintiff was not using an assistive device. (Tr. 479). The failure to use
an assistive device detracts from a claimant=s credibility. See e.g., Gonzales v. Barnhart, 465
F.3d 890, 895 (8th Cir. 2006). See also Schroeder v. Sullivan, 796 F. Supp. 1265, 1270 (W.D.
Mo. 1992) (holding that the claimant=s need to take naps was not documented in the record and
because the claimant failed to complain to his doctors about drowsiness, Acontradict[ed] his
assertion that he must nap during the day@; AIt is as likely that Plaintiff chooses to nap at times he
might otherwise choose to remain awake.@).
Fourth, the ALJ considered that none of Plaintiff’s doctors opined that she was unable to
work due to physical limitations. (Tr. 25). See Eichelberger, 390 F.3d at 590 (ALJ could find
claimant not credible based in part on fact that no physician imposed any work related
restrictions); Young v. Apfel, 221 F.3d 1065, 1069 (8th Cir. 2000) (AWe find it significant that
no physician who examined Young submitted a medical conclusion that she is disabled and
unable to perform any type of work.@).
Fifth, Plaintiff reported that she made simple dinners, was independent in her own
personal care, read the bible, handled her own finances, played video games, helped with chores
and cooking when she had enough energy, took care of pets, drove, went out alone, used a
computer to send e-mails and browse the internet, took her husband to work and picked him up
for lunch, utilized public transportation, shopped, socialized with others, went to friends’ houses,
“hung out” at McDonald’s, went to the movies and Harry Potter conventions, traveled to Russia,
regularly exercised, and put clothing in the washing machine. (Tr. 38, 72-75, 78, 83-84, 225-31,
234, 371, 389, 413, 437, 478-79).
While the undersigned appreciates that a claimant need not be bedridden before she can
be determined to be disabled, Plaintiff's daily activities can nonetheless be seen as inconsistent
with her subjective complaints of a disabling impairment and may be considered in judging the
credibility of complaints. See Eichelberger, 390 F.3d at 590 (ALJ properly considered that
plaintiff watched television, read, drove, and attended church upon concluding that subjective
complaints of pain were not credible); Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001);
Onstead, 962 F.2d at 805; Murphy v. Sullivan, 953 F.2d 383, 386 (8th Cir. 1992); Benskin, 830
F.2d at 883; Bolton v. Bowen, 814 F.2d 536, 538 (8th Cir. 1987). Indeed, the Eighth Circuit
holds that allegations of disabling Apain may be discredited by evidence of daily activities
inconsistent with such allegations.@
Davis v. Apfel, 239 F.3d 962, 967 (8th Cir. 2001).
AInconsistencies between [a claimant=s] subjective complaints and [his] activities diminish [his]
credibility.@ Goff, 421 F.3d at 792. See also Haley v. Massanari, 258 F.3d 742, 748 (8th Cir.
2001); Nguyen v. Chater, 75 F.3d 429, 439-41 (8th Cir. 1996) (holding that a claimant=s daily
activities, including visiting neighbors, cooking, doing laundry, and attending church, were
incompatible with disabling pain and affirming denial of benefits at the second step of analysis).
Sixth, the ALJ considered it significant that Plaintiff worked after her alleged onset date,
although not at the substantial gainful activity level. (Tr. 27). Plaintiff claimed a January 7,
2007 onset date, but she reported that she worked an average of three hours a day from August
2007 to February 2008. (Tr. 168). AActs which are inconsistent with a claimant=s assertion of
disability reflect negatively upon that claimant=s credibility.@ Johnson v. Apfel, 240 F.3d 1145,
1148 (8th Cir. 2001). AWorking generally demonstrates an ability to perform a substantial
gainful activity.@ Goff, 421 F.3d at 792 (citing Nabor v. Shalala, 22 F.3d 186, 188-89 (8th Cir.
1994)). 20 C.F.R. ' 404.1574(a) provides that if a claimant has worked, the Commissioner
should take this into consideration when determining if the claimant is able to engage in
substantial gainful activity. See also Harris v. Barnhart, 356 F.3d 926, 930 (8th Cir. 2004) (AIt
was also not unreasonable for the ALJ to note that Harris's . . . part-time work [was] inconsistent
with her claim of disabling pain.@).
Seventh, the ALJ considered Plaintiff’s poor work history. (Tr. 17). For example,
Plaintiff had earnings of $1,777.77 in 2001, $1,565 in 2002, and no earnings in 2004. (Tr. 163).
A long and continuous past work record with no evidence of malingering is a factor supporting
credibility of assertions of disabling impairments. See Allen v. Califano, 613 F.2d 139, 147 (6th
Cir. 1980). For the same reason, an ALJ may discount a claimant=s credibility based upon her
poor work record. See Ownbey v. Shalala, 5 F.3d 342, 344 (8th Cir. 1993). See also Ellis v.
Barnhart, 392 F.3d 988, 966 (8th Cir. 2005) (ALJ could discount claimant’s credibility in part
based on his not having worked for seven years preceding his SSI application; Fredrickson v.
Barnhart, 359 F.3d 972, 976 (8th Cir. 2004) (ALJ properly found claimant not credible due in
part to his sporadic work record reflecting relatively low earnings and multiple years with no
In conclusion, the court finds that the ALJ’s credibility determination and considerations
are based on substantial evidence.
Severity of Plaintiff’s Chronic Fatigue Syndrome:
The ALJ found that Plaintiff’s chronic fatigue syndrome was a medically determinable
impairment, but that it was not severe. (Tr. 21). Plaintiff argues the ALJ erred in finding her
chronic fatigue syndrome non-severe. (Doc. 19 at 10-14).
As stated above, at Step 2 of the sequential analysis, an ALJ is required to determine if a
claimant has a severe impairment or combination of impairments. AThe severity Regulation
adopts a standard for determining the threshold level of severity: the impairment must be one
that >significantly limits your physical or mental ability to do basic work activities.=@ Bowen v.
Yuckert, 482 U.S. 137, 153 n.11 (1987) (quoting 20 CFR ' 404.1520(c)). A severe impairment is
an impairment or combination of impairments that significantly limits a claimant’s physical or
mental ability to perform basic work activities without regard to age, education, or work experience.
See 20 C.F.R. §§ 404.1520(c), 404.1521(a). However, “[a]n impairment is not severe if it
amounts only to a slight abnormality that would not significantly limit the claimant’s physical or
mental ability to do basic work activities.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007);
see also 20 C.F.R. § 404.1521(a) (describing basic work activities). In other words, if the
impairment has only a minimal effect on the claimant’s ability to work, then it is not severe. See
Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007). A plaintiff has the burden of establishing a
severe impairment. See Kirby, 500 F.3d at 707. For the following reasons, the court finds that
the ALJ’s determination that Plaintiff’s chronic fatigue syndrome was non-severe is supported by
First, Edith Winkler, M.D., who is board certified in internal medicine and rheumatology,
testified as a non-examining medical expert. Dr. Winkler testified that she could not confirm that
Plaintiff had chronic fatigue syndrome because Plaintiff appeared to have significant mental-health
issues, which might have explained her purported fatigue. (Tr. 45, 47–49). Dr. Winkler also
explained that a diagnosis of chronic fatigue syndrome required other physical findings that were not
documented in the medical evidence. (Tr. 47-48). Despite Dr. Winkler’s testimony, as stated above,
the ALJ gave Plaintiff the benefit of the doubt and found that her chronic fatigue syndrome was a
medically determinable impairment, albeit non-severe.
Second, upon finding that Plaintiff’s chronic fatigue syndrome was non-severe, the ALJ
relied upon the fact that Plaintiff’s providers often described her condition as “stable” or reported that
Plaintiff was doing well with her fatigue. (Tr. 21, 504, 528, 641). The ALJ also found it significant
that there was extremely limited evidence of fatigue during the period at issue. (Tr. 21).
Third, as considered by the ALJ, references to Plaintiff’s chronic fatigue syndrome in the
record were based on Plaintiff’s self-reporting of past diagnosis. (Tr. 21).
Fourth, as discussed above in regard to Plaintiff’s credibility, medical examination
showed that Plaintiff had good strength and coordination, normal range of motion, normal
muscle bulk and tone, normal gait, and no atrophy or abnormal movement. Examination also
showed she had normal attention, concentration, and a fund of knowledge, she was alert and
oriented, and her behavior, judgment, and thought content were normal.
Fifth, as noted by the ALJ, it was reported that Plaintiff was doing well with her fatigue. (Tr.
Sixth, Plaintiff’s last date insured was September 30, 2007, but she was not diagnosed with
chronic fatigue syndrome until September 22, 2008. (Tr. 286). A non-disabling condition which
later develops into a disabling condition after the expiration of a claimant=s insured status cannot
be the basis for an award of Social Security disability benefits. See Thomas v. Sullivan, 928
F.2d 255, 260-61 (8th Cir. 1991); Dunlap v. Harris, 649 F.2d 637, 639 (8th Cir. 1981).
The court finds, therefore, that the ALJ’s determination that Plaintiff’s chronic fatigue
syndrome was non-severe is based on substantial evidence and that Plaintiff’s argument to the
contrary is without merit.
Plaintiff argues the ALJ did not include her chronic fatigue syndrome when formulating
Plaintiff is incorrect as the ALJ limited Plaintiff to light work with various
environmental imitations described above. To account for Plaintiff’s alleged “mind fog,” the
ALJ limited Plaintiff to simple tasks and instructions, and to only occasional interaction with
others. To the extent Plaintiff claims the ALJ should have included greater limitations than he
did, the ALJ considered all of Plaintiff’s limitations which he found credible when formulating
Plaintiff’s RFC, and included limitations which he found credible. See Tucker v. Barnhart, 363
F.3d 781, 783 (8th Cir. 2004) (AThe ALJ must assess a claimant=s RFC based on all relevant,
credible evidence in the record, including the medical records, observations of treating
physicians and others, and an individual=s own description of his limitations.”) (internal
quotations and citations omitted). Additionally, as discussed above in regard to Plaintiff’s
credibility, the ALJ considered the medical evidence of record upon formulating Plaintiff’s RFC.
See Lauer, 245 F.3d at 704 (although assessing claimant=s RFC is primarily ALJ’s responsibility,
claimant's RFC is a medical question). In conclusion, the court finds that Plaintiff’s argument
that the ALJ should have imposed greater limitations is without merit. Finally, the court finds
that the ALJ’s RFC determination and his ultimate conclusion that Plaintiff was not disabled are
supported by substantial evidence.
For the reasons set forth above, the court finds that substantial evidence on the record as a
whole supports Commissioner’s decision that Plaintiff is not disabled.
IT IS HEREBY ORDERED that the relief sought by Plaintiff in her Complaint and
Brief in Support of Complaint (Docs. 1, 19) is DENIED;
IT IS ORDERED that a separate judgment be entered incorporating this Memorandum
Dated this 23nd day of September 2014.
/s/ Noelle C. Collins
NOELLE C. COLLINS
UNITED STATES MAGISTRATE JUDGE
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