McQuillian v. Colvin

Filing 17

MEMORANDUM AND ORDER: For the reasons set out above, the Commissioners decision that plaintiff was not disabled is supported by substantial evidence on the record as a whole. The Commissioner's final decision is affirmed. A separate Judgment Order is issued herewith. Signed by Magistrate Judge David D. Noce on 3/21/2014. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

SHERYL MCQUILLIAN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 4:13 CV 515 DDN

MEMORANDUM
This is an action under 42 U.S.C. § 405(g) for judicial review of the
Commissioner’s final decision denying Sheryl McQuillian’s application for disability
insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq. All
matters are pending before the undersigned United States Magistrate Judge, with consent
of the parties, pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the
decision of the Commissioner is affirmed.
I. Procedural History
Plaintiff Sheryl McQuillian filed an application for disability insurance benefits
(DIB) on June 2, 2010, alleging that she became disabled on April 30, 2009, because of
fibromyalgia, anxiety, depression, bladder problems, attention deficit disorder (ADD),
thyroid problems, diverticulitis, endometriosis, and arthritis. (Tr. 109-116, 141.) On
September 2, 2010, the Social Security Administration denied plaintiff’s claim for
benefits. (Tr. 56, 57, 58-62.) Upon plaintiff’s request, a hearing was held before an
administrative law judge (ALJ) on November 3, 2011, at which plaintiff and a vocational
expert testified. (Tr. 38-55.) On February 13, 2012, the ALJ issued a decision denying
plaintiff’s claim for benefits, finding plaintiff able to perform work as it exists in

significant numbers in the national economy, and specifically, office helper and stock
checker. (Tr. 10-37.) On January 24, 2013, the Appeals Council denied plaintiff’s
request for review of the ALJ's decision. (Tr. 1-7.) The ALJ's determination thus stands
as the final decision of the Commissioner. 42 U.S.C. § 405(g).
In the instant action for judicial review, plaintiff contends that the ALJ’s decision
is not supported by substantial evidence on the record as a whole. Specifically, plaintiff
argues that the ALJ’s residual functional capacity (RFC) assessment is not supported by
some medical evidence in the record because of the ALJ’s failure to properly weigh the
medical opinions of plaintiff’s treating providers, Dr. Scheperle and Dr. Bernstein.
Plaintiff also contends that the ALJ failed to properly undergo the analysis required when
considering a diagnosed impairment of interstitial cystitis. Plaintiff further argues that
the ALJ erred by considering plaintiff’s failure to follow prescribed treatment without
determining whether such treatment would restore her ability to work. Plaintiff also
contends that the hypothetical question posed to the vocational expert was based upon an
improper RFC assessment, and thus that the ALJ erred by relying on the expert’s
testimony to find her not disabled. Plaintiff requests that the final decision be reversed.
Because the ALJ committed no legal error and substantial evidence on the record
as a whole supports the ALJ’s decision, the Commissioner’s final decision that plaintiff
was not disabled is affirmed.1

The ALJ determined plaintiff’s claimed impairments of thyroid problems and diverticulitis not
to be severe impairments and that plaintiff’s claimed anxiety was not a medically determinable
impairment. (Tr. 15-20.) Plaintiff does not challenge these findings. Nor does plaintiff
challenge the ALJ’s analysis relating to the effects of plaintiff’s ADD. While the undersigned
has reviewed the entirety of the administrative record in determining whether the
Commissioner’s adverse decision is supported by substantial evidence, the recitation of specific
evidence in this Memorandum and Order is limited to only that relating to the issues raised by
plaintiff on this appeal.

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II. Relevant Testimonial Evidence Before the ALJ
A.

Plaintiff’s Testimony
At the hearing on August 10, 2011, plaintiff testified in response to questions

posed by the ALJ and counsel.
At the time of the hearing, plaintiff was fifty-one years of age. Plaintiff graduated
from high school and thereafter attended vocational school for one year. (Tr. 41.)
Plaintiff’s Work History Report shows that plaintiff worked as a retail clothing
salesperson from 1978 to 2005. Plaintiff worked as a mechanical drafter and designer
from 1980 to May 2001. From June 2003 to April 30, 2009, plaintiff worked as a
salesperson for various furniture companies. (Tr. 178-90.) Plaintiff testified that she was
terminated from her last job because she was making mistakes, missing work, and failing
to ask customers requisite questions. Plaintiff testified that such circumstances were
caused by pain-induced confusion, forgetfulness, irritability, and absenteeism. Plaintiff
testified that she received unemployment compensation for one year after this last period
of employment. (Tr. 44, 50.)
Plaintiff testified that she currently has pain all over, including pain in the pelvis,
knees, elbows, jaw, and back. Plaintiff testified that she also suffers from fatigue.
Plaintiff testified that the combination of pain and fatigue causes her to become confused
and “bothered.” (Tr. 48-49.)
Plaintiff testified that her pelvic pain is related to conditions for which she
previously underwent surgeries, including procedures for endometriosis, a hysterectomy,
and related reconstructive surgery. Plaintiff testified that such surgeries occurred prior to
April 2009. (Tr. 45-46.)
Plaintiff testified that she sees a chiropractor for muscle pain, back pain, and knee
pain and that her internist, Dr. Scheperle, diagnosed her with fibromyalgia. Plaintiff
testified that she has never been referred to a rheumatologist. (Tr. 47-48.)
Plaintiff testified that she previously saw Dr. Georgia Jones in the 1990’s for
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depression and anxiety and that she visited her again for five or six months in 2010.
Plaintiff reported that she stopped seeing Dr. Jones because she was doing better and was
taking medication received from another physician.

Plaintiff testified that she was

currently depressed because of the pain she experiences. (Tr. 46-47, 49.)
As to exertional abilities, plaintiff testified that she can stand for twenty minutes
before needing to lie down. Plaintiff testified that she lies down for about eight hours
during the day because of pain, fatigue, and medication side effects. (Tr. 49.)
As to her daily activities, plaintiff testified that her mother helps with household
chores and that her parents pay for someone to care for the yard. (Tr. 50.)
B.

Testimony of Vocational Expert
Dr. Jeffrey Magrowski, a vocational expert, testified at the hearing in response to

questions posed by the ALJ and counsel.
The ALJ asked Dr. Magrowski to consider an individual of plaintiff’s age,
education, and work experience and to assume the individual to be able to perform the
full range of light work. The ALJ asked Dr. Magrowski to further assume the individual
to be
able to understand, remember, and carry out at least simple instructions of
non-detailed tasks; can respond appropriately to supervisors and coworkers; can adapt to routine simple work changes; can perform work at a
normal pace without production quotas; and should not work in a setting,
which includes constant, or regular contact with the general public.
(Tr. 52.) Dr. Magrowski testified that such a person could not perform plaintiff’s past
relevant work but could perform light, unskilled work such as office helper, of which
4,000 such jobs existed in the State of Missouri and over 200,000 nationally; and stock
checker, of which 2,000 such jobs existed in the State of Missouri and 100,000
nationally. (Tr. 52.)
The ALJ then asked Dr. Magrowski to assume the individual to be limited to
lifting less than ten pounds occasionally and that such individual could sit less than two
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hours and stand less than two hours. Dr. Magrowski testified that such a person could not
perform plaintiff’s past relevant work nor any other work. (Tr. 52.)
Plaintiff’s counsel asked Dr. Magrowski to further assume the individual to need
repeated rest breaks, each lasting up to ten to fifteen minutes. Dr. Magrowski testified
that such condition was incompatible with work. (Tr. 53.)

III. Relevant Medical Evidence Before the ALJ
In August 2002, plaintiff visited Dr. Robert Bernstein, a chiropractor, in relation to
pain experienced as a result of a motor vehicle accident. Plaintiff specifically complained
of pain in her neck, left upper extremity, and pelvic region. Thereafter and through 2008,
plaintiff periodically visited Dr. Bernstein for treatment relating to complaints of
headaches, jaw and neck pain, low back pain, shoulder pain, and tingling and numbness
in the feet and ankles. Throughout this period, Dr. Bernstein repeatedly released plaintiff
to full work duties, with the only limitations coming in December 2004 to not lift in
excess of fifty pounds for a period of seven days and in April 2008 to avoid heavy lifting
for the remainder of the week. (Tr. 484-518.)
Plaintiff underwent reconstructive pelvic surgery on December 28, 2007, for
uterine prolapse, enterocele, cystocele, rectocele, and absent perineum. (Tr. 219-20.) In
a letter dated February 7, 2008, Dr. Dionysios K. Veronikis released plaintiff to return to
work without any restrictions effective February 11, 2008. (Tr. 243.) Dr. Veronikis had
previously treated plaintiff for exposed mesh and uterovaginal prolapse as well as for
urinary incontinence. (Tr. 202-05, 221-42.)
From March 2008 to December 2008, plaintiff visited Dr. Helene M. Aisenstat
with multiple complaints, including groin pain, low back pain, fatigue, burning with
urination, hormonal changes, sleep problems, muscle and joint pain, depression, crying
spells, decreased concentration, lack of energy, dizziness, pressure and pain in the upper
back, weight gain, chest pressure, left knee pain, overall flu-like pain, urinary frequency,
and rectal urgency. During this period, Dr. Aisenstat diagnosed plaintiff with irritable
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bowel syndrome (IBS), cystic pancreatic head, insomnia, depression, and ADD. Plaintiff
was prescribed Paxil, Clonazepam, Adderall, Seroquel, Norflex, Meclizine, Otrin,
Flexeril, Motrin, and Ritalin for these conditions. (Tr. 437-47, 662-64, 669-70.)
In response to plaintiff’s complaints of pelvic pain, Dr. Vaishali Bhalani
performed a diagnostic laparoscopy on December 22, 2008, which showed multiple
dense and filmy adhesions of the bowel and mesentery to the left and right adnexa, as
well as to the vaginal cuff and the peritoneal wall. Some adhesions were removed during
the procedure, but the adhesions to the vaginal cuff were too dense to be removed. (Tr.
368-69, 372-73.) On December 26, 2008, plaintiff reported to Dr. Bhalani that her pain
was fine and that she had no current issues. (Tr. 364-65.)2
On January 14, 2009, plaintiff underwent a thyroidectomy because of thyroid
cancer. (Tr. 455-46.)
Plaintiff returned to Dr. Bhalani on April 24, 2009, and complained of pain in the
lower abdomen. Dr. Bhalani considered referring plaintiff to a pelvic pain specialist or to
someone who could remove the remaining bowel adhesions if said condition was
determined to be the continued source of pain. (Tr. 359-60.) On May 8, 2009, plaintiff
continued to complain to Dr. Bhalani of fatigue, low back pain, and pelvic pain. Further
discussion regarding referral to a specialist was had. (Tr. 357-58.)
On May 22, 2009, plaintiff visited Dr. Melissa Johnson for purposes of
establishing a new physician/patient relationship. Plaintiff reported that she wanted to
lose weight and that she walked at least one mile a day in this effort. Plaintiff reported
constant muscle pain and fatigue, and she expressed concern that she may have
fibromyalgia. Plaintiff also reported experiencing dizziness when turning over while
lying down.

Plaintiff’s current medications were noted to include Synthroid,

Methylphenidate, and Pristiq. Physical examination yielded normal results except for a
hard, calcified deposit in the area of an earlier trauma in the left calf. Dr. Johnson
Dr. Bhalani had previously treated plaintiff in August 2008 for symptoms associated with
menopause. (Tr. 370-71.)

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diagnosed plaintiff with elevated blood pressure, traumatic myositis ossificans, nonneoplastic nevus, attention deficit hyperactivity disorder (ADHD), hypothyroidism,
myalgia, abnormal weight gain, and acute bronchitis. Laboratory and diagnostic tests
yielded normal results. (Tr. 300-07.)
On May 28, 2009, plaintiff visited Dr. M. Brigid Holloran-Schwartz at SLUCare’s gynecological department and complained of throbbing back pain, excessive
urination, and incontinence. Dr. Schwartz noted plaintiff to have endometriosis and a
history of lower pelvic pain.

Dr. Schwartz noted plaintiff’s current medications to

include steroids for bronchitis as well as Ritalin as needed. Physical examination showed
increased pain with palpation of the urethra and bladder. Dr. Schwartz opined that
plaintiff’s back pain was likely unrelated to gynecological issues and that bowel
adhesions to the vaginal cuff may account for plaintiff’s pain. Plaintiff was referred for
gastrointestinal evaluation. Plaintiff was also referred to Dr. Andrew Steele for urinary
issues. (Tr. 250-53.)
On June 5, 2009, plaintiff reported to Dr. Bhalani that she felt much better after
taking Pristiq for depression and menopausal symptoms. Plaintiff was instructed to
continue with Pristiq and was restarted on hormone replacement therapy. (Tr. 355-56.)
Plaintiff returned to Dr. Johnson on June 25, 2009, and complained of back pain
and dizziness, and of not wanting to get up and “get going.” Plaintiff reported having no
joint pain. It was noted that plaintiff took Ritalin only when she was working and was
currently off of the medication. It was also noted that plaintiff had previously taken
Paxil, which worked well for her. Physical examination was unremarkable. Plaintiff was
instructed to discontinue Pristiq. Paxil was prescribed. (Tr. 296-98.)
Plaintiff called Dr. Steele’s office at SLU-Care on August 3, 2009, and reported
being practically bedridden and that she was incontinent even while lying down. Plaintiff
reported feeling nauseated while walking.

Plaintiff reported having painful bowel

movements but that her back pain subsided after such movements. Plaintiff was advised
to contact a GI specialist per Dr. Schwartz’s instructions. On August 6, 2009, plaintiff
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reported to Dr. Steele’s office that her pain was worse upon awakening and with lifting.
Tylenol #3 was prescribed. (Tr. 248-49.)
Plaintiff visited Dr. Steele on August 25, 2009, with complaints of pelvic pain.
Dr. Steele noted plaintiff to have previously undergone numerous surgeries and
procedures, each of which provided temporary relief. Dr. Steele noted an earlier scope to
show bowel adhesion to the cuff.

Plaintiff reported having urinary frequency and

incontinence, symptoms associated with IBS, and pressure and back pain associated with
prolapse. Plaintiff reported having constant pain with periods of exacerbation. Plaintiff
also reported being fatigued and having myalgia and arthralgia, muscle weakness, stiff
and painful joints, dizziness, memory problems, coordination and gait problems, tremors,
weakness, and ADHD. Upon examination, Dr. Steele diagnosed plaintiff with pelvic
pain, endometriosis, and pelvic adhesive disease; frequency and urgency; new onset of
insensate incontinence; and IBS.

It was determined that plaintiff would undergo

cystoscopy and hydrodistension surgery. (Tr. 264-74.)
Plaintiff returned to Dr. Johnson on September 3, 2009, with complaints of anxiety
and depression. Plaintiff reported having lost her Paxil and that she forgets to take her
Synthroid. Physical and psychological examinations were unremarkable. Dr. Johnson
noted plaintiff’s mood to be pleasant. Dr. Johnson prescribed Paxil for plaintiff’s fatigue
and malaise and instructed plaintiff to continue with her current medications for thyroid
and hypertension. Plaintiff was instructed to return in four weeks. (Tr. 293-95.)
Plaintiff visited Dr. Stephanie M. Dettlebach on October 5, 2009, with reports of
fatigue and weight gain since thyroid surgery in January 2009. Plaintiff reported having
abdominal pain, frequent diarrhea, and worsening chronic back pain. Plaintiff reported
regularly taking Naprosyn and Flexeril. It was noted that plaintiff also had depression
and adult ADHD, but plaintiff reported that her depression was under good control and
that she had not taken Ritalin since being out of work. Physical examination showed
mild tenderness over the thoracic and lumbar spine and paraspinal muscles with mildly
reduced flexion, but was otherwise unremarkable. Plaintiff was referred to physical
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therapy and to gastroenterology. Cyclobenzaprine was prescribed. It was noted that
plaintiff would not restart Ritalin unless she went back to work. (Tr. 407-09, 652-54.)
X-rays of the lumbar and thoracic spine taken on October 13, 2009, in response to
plaintiff’s complaint of low back pain showed mild endplate degenerative changes of the
mid-thoracic spine but no acute osseous abnormality. (Tr. 435-36.)
On October 13, 2009, plaintiff visited Dr. Swaroopa Bartakke to establish care for
thyroid problems. In addition to noting plaintiff’s medical history relating to the thyroid
condition, Dr. Bartakke noted plaintiff’s complaints of weight gain and chronic muscle
aches, pains, and tenderness.

Plaintiff also complained of being tired, moody, and

irritable with stress noted in relation to losing her job and having to sell her house.
Plaintiff reported having insomnia with a tendency to take daytime naps, especially since
losing her job in April. Dr. Bartakke noted plaintiff’s diagnosed conditions to include
depression and ADHD. Plaintiff denied having any bladder and/or bowel problems.
Mental status examination was normal. Dr. Bartakke prescribed Cytomel for continued
fatigue. (Tr. 324-26.)
Plaintiff visited Dr. Steele on October 22, 2009, for surgical follow up in relation
to her complaints of chronic pelvic pain, back pain, and urinary frequency. Plaintiff’s
diagnosis was noted to be chronic interstitial cystitis. Plaintiff’s current medications
were noted to include Dyazide, Synthroid, Pentosin Polysulfate Sodium, Hydroxyzine
(Atarax), Align, and Ritalin. Plaintiff reported not having had any problems since her
procedure, and instruction was given for medication and diet. Elmiron was prescribed.
(Tr. 258-64.)
Plaintiff returned to Dr. Dettlebach on November 9, 2009, and reported feeling
more awake and alert since starting medication through endocrinology.

Plaintiff

continued to report back discomfort and that Flexeril helped during the day but not much
at night. It was noted that plaintiff did not start physical therapy. Plaintiff was instructed
to continue on her current medications, and a new referral to physical therapy was made.
(Tr. 404-06.)
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Plaintiff visited Dr. Michael Heavey, a gastroenterologist, on November 11, 2009,
regarding her complaints of abdominal pain and IBS. Physical examination showed
tenderness about the lower abdomen. A colonoscopy performed on December 2, 2009,
showed a few diverticula of the sigmoid colon and small internal hemorrhoids, but was
otherwise normal. A high fiber diet was recommended. (Tr. 468-78.)
In January 2010, plaintiff complained to Dr. Bernstein that she had foot pain and
knee pain. Stretching and manipulation were applied. (Tr. 483.)
On January 19, 2010, plaintiff visited Dr. Bartakke and reported that Cytomel
helped with her fatigue. Plaintiff complained of continued moodiness, irritability, and
weight gain. Plaintiff also complained of chronic low back pain with no radicular
symptoms. Plaintiff continued to report having no bowel and/or bladder problems. Some
depression was noted. Mental status examination was normal. Physical examination of
the extremities was normal. (Tr. 318-20.)
In February 2010, plaintiff complained to Dr. Bernstein that she had medial leg
pain and reported that massage of the left foot worked well. Plaintiff was instructed to
stretch her calves. (Tr. 482.)
Plaintiff visited Dr. Aisenstat on February 15, 2010, and complained of
depression, feeling overwhelmed, constant fatigue, and crying spells. It was noted that
plaintiff had an upcoming appointment with a psychiatrist but wanted to restart her
medication. Plaintiff also had multiple complaints of pain consistent with fibromyalgia.
Plaintiff reported that she planned to apply for disability. Plaintiff reported having no
fatigue or side effects from medications. Physical examination was unremarkable. Dr.
Aisenstat prescribed Methylphenidate, Paroxetine (Paxil), and Clonazepam and ordered
an MRI of the lumbar spine. (Tr. 398-99.)
Plaintiff visited Dr. Mark A. Scheperle on February 17, 2010. It was noted that
plaintiff was a new patient. It was noted that plaintiff had completed treatment for
thyroid cancer and could not lose weight. Plaintiff reported having gained sixty pounds
in four years. Plaintiff also complained of fatigue. Osteoarthritis of the spine was noted.
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Plaintiff was diagnosed with ADD, obesity, history of thyroid cancer, and
hyperthyroidism. Laboratory testing was ordered. (Tr. 537-40.)
An MRI of the lumbar spine taken February 25, 2010, showed mild discogenic
degenerative changes at the L4-L5 level. No significant disc herniation or stenosis was
noted. (Tr. 402-03.)
On March 4, 2010, Dr. Johnson noted plaintiff to complain of dizziness and
fatigue. Dr. Johnson noted plaintiff not to be taking most of the medications on her
medications list, including Seroquel and Cyclobenzaprine.

Plaintiff reported taking

Clonazepam. It was noted that plaintiff was not adhering to her diet and that she engaged
in no physical activity. General examination was unremarkable. Dr. Johnson diagnosed
plaintiff with hypertension, psoriasis, hypothyroidism, and abnormal weight gain. Dr.
Johnson also diagnosed plaintiff with fatigue and malaise, for which plaintiff was
instructed to see a psychiatrist. (Tr. 287-89.)
Plaintiff visited Dr. Georgia Jones at Psych Care Consultants (Psych Care) on
March 11, 2010, and complained of having no energy and of not wanting to get out of
bed. Mental status examination showed plaintiff to be cooperative and calm with a
depressed mood and blunted affect. Plaintiff’s speech was noted to be delayed, but her
thought process was intact. Plaintiff was oriented times four. Dr. Jones diagnosed
plaintiff with major depressive disorder-recurrent-moderate and assigned a Global
Assessment of Functioning (GAF) score of 30.3 Dr. Jones prescribed Cymbalta and
instructed plaintiff to continue with her other medications as prescribed by other doctors,
including Clonazepam and Seroquel. (Tr. 525-27.)
Plaintiff returned to Dr. Bartakke on March 24, 2010, and continued to complain
A GAF score considers “psychological, social, and occupational functioning on a hypothetical
continuum of mental health/illness.” Diagnostic and Statistical Manual of Mental Disorders,
Text Revision 34 (4th ed. 2000). A GAF score of 21-30 indicates that behavior is considerably
influenced by delusions or hallucinations, or there is serious impairment in communication or
judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation), or an
inability to function in almost all areas (e.g., stays in bed all day; no job, home, or friends).
3

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of moodiness, irritability, and weight gain. Plaintiff reported her muscle aches to have
worsened since starting Cymbalta.

Plaintiff reported her back pain, myalgia, and

headaches to be the same but that her energy level had improved. Examination was
unchanged. (Tr. 313-15.)
Plaintiff also visited Dr. Aistenstat on March 24, 2010, and reported increased
middle back pain. Physical examination was unremarkable. Laboratory testing was
ordered. (Tr. 388-91.) On that same date, plaintiff visited Dr. Heavey who noted
plaintiff to have some improvement in her bowel symptoms. Physical examination was
unremarkable. Plaintiff was instructed to take a fiber supplement. (Tr. 465-68.) During
a visit with Dr. Scheperle on March 28, 2010, physical examination was unremarkable.
Plaintiff was diagnosed with pituitary adenoma, history of thyroid cancer, and ADD. (Tr.
535-36.)
On April 20, 2010, plaintiff visited Dr. Anita Schnapp for a well woman
examination and reported having no complaints. Dr. Schnapp noted plaintiff to have
recently been diagnosed with interstitial cystitis and to be taking Elmiron, which helped
the condition. (Tr. 353-54.)
Plaintiff returned to Dr. Scheperle on May 20, 2010, with complaints of increased
back pain and occasional hematuria. Dr. Scheplerle noted pain about the right flank. No
change was noted regarding plaintiff’s treatment. (Tr. 533-34.)
Plaintiff visited Dr. Aisenstat on May 26, 2010, with complaints of symptoms
associated with allergies.

Plaintiff reported having no fatigue or urinary or bowel

problems. Physical examination was unremarkable. Plaintiff was provided prescriptions
for her upper respiratory symptoms. (Tr. 612-14.)
On June 2, 2010, Dr. Jones adjusted plaintiff’s medications in response to her
reports of decreased enjoyment, decreased ability to get started, and decreased
concentration. (Tr. 523.)
Plaintiff returned to Dr. Bernstein on June 6, 2010, and complained of constant
pain and hand numbness affecting her fingers. Dr. Bernstein noted this to be a new
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condition. Manipulation was performed. (Tr. 482.)
A CT scan of the abdomen and pelvis taken June 8, 2010, in response to plaintiff’s
complaints of abdominal and back pain showed a small hiatal hernia and a left adrenal
adenoma. (Tr. 543.)
On July 2, 2010, Dr. Jones noted plaintiff to have an improved mood and an
unremarkable mental status examination. Plaintiff reported having good days and bad
days. Plaintiff was continued on her current medications. (Tr. 522.)
Plaintiff reported to Dr. Scheperle on July 20, 2010, that she experienced
excessive fatigue. Physical examination was unremarkable. (Tr. 531-32.) An MRI of
the brain taken July 23, 2010, yielded normal results. (Tr. 541-42.)
Plaintiff visited a licensed clinical social worker (LCSW) at Psych Care on August
25, 2010, and reported that she had been sick “off and on” and that she had thyroid
cancer in remission, diverticulitis, fibromyalgia, partial hysterectomy, interstitial cystitis,
back pain, endometriosis, and pre-diabetes. Plaintiff reported feeling overwhelmed. It
was noted that plaintiff was scheduled to see Dr. Jones in September. Plaintiff was
instructed to keep a daily journal. (Tr. 700.)

Plaintiff failed to appear for a scheduled

appointment with Psych Care on September 1, 2010. (Tr. 699.)
On September 1, 2010, Sherry Bassi, Ph.D., a consultant with disability
determinations, completed a Mental RFC Assessment wherein she opined that in the
domain of Understanding and Memory, plaintiff was moderately limited in her ability to
understand and remember detailed instructions but not significantly limited in her ability
to remember locations and work-like procedures as well as in her ability to understand
and remember very short and simple instructions.

In the domain of Sustained

Concentration and Persistence, Dr. Bassi opined that plaintiff was moderately limited in
her ability to carry out detailed instructions but was not otherwise significantly limited.
In the domains of Social Interaction and Adaptation, Dr. Bassi opined that plaintiff had
no significant limitations. Dr. Bassi concluded that plaintiff could perform simple tasks,
relate adequately to others in a low-stress social environment, and adapt to routine
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changes in a work environment. (Tr. 557-59.) In a Psychiatric Review Technique Form
completed that same date, Dr. Bassi opined that plaintiff’s depression resulted in mild
limitations in activities of daily living and in her ability to maintain social functioning;
moderate limitations in her ability to maintain concentration, persistence, or pace; and
resulted in no repeated episodes of decompensation of extended duration. (Tr. 560-71.)
Plaintiff returned to Dr. Aisenstat on September 10, 2010, for medication follow
up regarding depression and her thyroid condition. Plaintiff made no complaints but
requested a more natural form of thyroid medication. It was noted that plaintiff had less
back pain since undergoing breast-reduction surgery.4 Plaintiff continued to express
concern regarding her weight, and Dr. Aisenstat instructed plaintiff as to diet and exercise
and recommended exercise thirty minutes a day at least five days a week. Dr. Aisenstat
noted diet and medication to help with plaintiff’s IBS symptoms, and plaintiff reported no
bowel or urinary problems. Dr. Aisenstat added Neurontin to plaintiff’s medication
regimen for pain associated with fibromyalgia. (Tr. 601-04.)
Plaintiff visited Dr. Bernstein in September 15, 2010, and complained of mid to
low back pain. Dr. Bernstein noted x-rays of the thoracic spine to show hyperkyphosis
and osteophytic spurring from T5 to T10.5

Dr. Bernstein diagnosed plaintiff with

thoracodynia associated with flex fixation with concomitant spondylosis. Mechanized
traction and manipulation was administered. (Tr. 673.) Plaintiff visited Dr. Bernstein on
two more occasions in September 2010 and complained of back stiffness and pain in her
feet, ankles, and face. Manipulation was administered as well as massage of the soft
tissues. (Tr. 672.)
Plaintiff met with the LCSW at Psych Care on September 15, 2010, and reported
that she was not feeling rested even when she slept through the night. Plaintiff reported
having negative thought patterns.

Plaintiff was encouraged to keep a journal.

4

Plaintiff underwent such surgery on August 5, 2010. (Tr. 547-50.)

5

These x-rays referred to by Dr. Bernstein do not appear in the record.
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On

September 22, plaintiff reported having disturbed sleep and was provided relaxation
techniques. On September 29, plaintiff reported concerns about losing her insurance.
Plaintiff was encouraged to take a self-esteem workshop. (Tr. 697-99.)
Plaintiff visited Dr. Scheperle on October 8, 2010, and complained of jaw pain.
Plaintiff was diagnosed with TMJ (temporomandibular joint dysfunction) on the left,
ADD, and hypothyroidism. (Tr. 681-82.)
On October 20, 2010, plaintiff reported to the LCSW at Psych Care that she was
moving to her parents’ house. On November 17, 2010, plaintiff reported that her parents
were supportive but that she was considering living with a former roommate. (Tr. 69697.)
Plaintiff returned to Dr. Bernstein on November 24, 2010, and reported having
pain in her low back. Plaintiff reported taking less daily medications since her breast
reduction surgery.

Dr. Bernstein diagnosed plaintiff with musculoskeletal pain and

subluxation. Manipulation was administered. (Tr. 672.)
Plaintiff met with the LCSW at Psych Care on January 6, 2011, and reported that
she felt better with journaling. Plaintiff reported being upset recently regarding her
physical condition and a personal relationship. Plaintiff was encouraged to exercise. (Tr.
694.) During a visit with Dr. Jones that same date, plaintiff reported that she was not
sleeping well. Mental status examination showed plaintiff to have a mildly depressed
mood, but was otherwise unremarkable. Plaintiff’s affect was appropriately reactive, and
plaintiff had normal memory, insight, and judgment. Plaintiff reported the status of her
relationships with significant people to be fair. Dr. Jones noted plaintiff to be taking
Cymbalta, Seroquel, and Clonazepam. Plaintiff was instructed to continue with her
current medications. (Tr. 701.)
Plaintiff returned to Dr. Aisenstat on January 21, 2011, and reported having
horrible depression. It was noted that plaintiff had recently lost her insurance. Dr.
Aisenstat noted plaintiff to be taking Cymbalta as prescribed by another physician.
Plaintiff was noted to be compliant with her medication, and she denied having any
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medication side effects.

Physical examination was unremarkable.

Medications

prescribed at this appointment included Cytomel, Synthroid, Mobic, and Norflex.
(Tr. 595-600.)
Plaintiff met with the LCSW at Psych Care on March 2, 2011, and reported having
pain that was suspected to be associated with fibromyalgia. Plaintiff reported that she
stopped taking Seroquel because it made her agitated and angry, but that taking Cymbalta
helped her sleep. Plaintiff reported spending time at home with her parents and with a
friend. Plaintiff reported that she felt bad for being unable to manage her life as she used
to. Plaintiff was encouraged to exercise daily. (Tr. 693.)
Plaintiff visited Dr. Scheperle on May 4, 2011, and complained of muscle
weakness, black outs, joint pain, and tingling in her right hand and left leg. Dr. Scheperle
diagnosed plaintiff with hypothyroidism, post-menopause, and fibromyalgia.

Dr.

Scheperle recommended that plaintiff get an MRI of the head. (Tr. 679-80.)
On May 5, 2011, plaintiff reported to the LCSW at Psych Care that she was not
sleeping and was caught up in a friend’s “drama.” Plaintiff expressed concern regarding
upcoming testing for multiple sclerosis. (Tr. 692.) Plaintiff visited Dr. Jones that same
date and reported increased anxiety and that she wanted to cry.

Dr. Jones noted

plaintiff’s mood to be moderately depressed with a blunted affect.

Mental status

examination showed plaintiff’s memory to be impaired, with normal insight and fair
judgment. Plaintiff was prescribed Paxil, Cymbalta, Clonazepam, and Dalmane. (Tr.
690.)
Plaintiff visited Dr. Aisenstat on July 21, 2011, who noted plaintiff’s blood
pressure medication to have been recently adjusted, with good results. Plaintiff reported
becoming tired after minimal activity. Plaintiff was encouraged to exercise to lose
weight. Plaintiff complained of overall pain, including pain in the right hip and left knee.
Plaintiff’s hip was normal upon examination. Plaintiff reported stopping Gabapentin
because she felt it was ineffective. It was recommended that plaintiff get an MRI of the
- 16 -

spine, but plaintiff expressed concern regarding the cost and stated that she would wait
and save money for the test. Dr. Aisenstat noted plaintiff to have good medication
compliance. Physical examination was unremarkable. Dr. Aisenstat diagnosed plaintiff
with hypothyroidism, hypertension, numbness in right leg, fibromyalgia, fatigue, joint
pain, myalgia, and hypercholesteremia. Laboratory testing was ordered. In addition to
blood pressure medication, Dr. Aisenstat prescribed Flexeril and Ultram. (Tr. 588-94.)
Plaintiff returned to Dr. Aisenstat on September 13, 2011, who noted plaintiff to
have multiple complaints. Plaintiff reported waking up at night feeling heaviness in her
back.

Plaintiff also reported having pain in her neck.

unremarkable.

Physical examination was

Plaintiff reported that Cymbalta really helped with her mood.

Dr.

Aisenstat diagnosed plaintiff with thyroid cancer, hypothyroidism, other malaise and
fatigue, and joint pain. Laboratory tests were ordered. Plaintiff reported that she was
transferring to a free clinic because of lack of insurance and that she did not want any
testing performed through Dr. Aisenstat’s office because of cost. (Tr. 583-88.)
Plaintiff met with the LCSW at Psych Care on September 27, 2011, and reported
being under severe financial stress. Plaintiff reported that her physician gave her a
limited prescription for Cymbalta and that she lies in bed and cries when she is without
the medication. Plaintiff also reported having some fibromyalgia pain. Plaintiff reported
not being suicidal but felt as though she was a burden. Plaintiff reported that she wanted
to work but was unable to do so. Plaintiff was encouraged to keep a daily journal. (Tr.
691.)
Plaintiff visited Dr. Bernstein on two occasions in September and October 2011
with complaints of mid-thoracic pain, low back pain, and neck pain. Manipulation was
administered. (Tr. 671.)
Plaintiff visited Dr. Jones on October 1, 2011, and reported significant financial
stress, health issues, and interrupted sleep.

Dr. Jones noted plaintiff’s mood to be

moderately depressed with a blunted affect. Mental status examination showed plaintiff’s
memory to be fair, with normal insight and fair judgment. Plaintiff was prescribed Paxil,
- 17 -

Cymbalta, Clonazepam, and Dalmane. (Tr. 689.)
Dr. Bernstein completed a Physical RFC Questionnaire on October 23, 2011, in
which he reported that he began treating plaintiff in August 2002 for her diagnosed
condition of myofascitis of concomitant pelvic and vertebral subluxation. Dr. Bernstein
reported that plaintiff exhibited symptoms of low back pain, neck pain, mid-thoracic
pain, left mandibular pain, and left hand numbness and that the back pain was aggravated
by standing associated with plaintiff’s sales position.
Dr. Bernstein reported that plaintiff’s impairment was objectively seen through
mild reversal of the cervical lordotic curve and thoracic arthritis with hyperkyphosis. Dr.
Bernstein noted plaintiff’s response to treatment to be “normally good” but that the
frequency of treatment was limited by expense and distance from home. Dr. Bernstein
opined that plaintiff’s depression and anxiety contributed to plaintiff’s physical condition.
Dr. Bernstein opined that plaintiff’s pain and other symptoms would frequently interfere
with plaintiff’s concentration on a daily basis. Dr. Bernstein opined that plaintiff would
be incapable of tolerating work stress of even low stress jobs. Dr. Bernstein opined that
plaintiff could walk one to two city blocks without rest or severe pain; could sit for one
hour at a time after which she must lie down; could stand for forty-five minutes at a time
after which she must lie down or briefly sit; could sit for a total of less than two hours in
an eight-hour workday; could stand and/or walk about two hours in an eight-hour
workday; and must walk for five minutes every thirty to forty-five minutes during an
eight-hour workday.
Dr. Bernstein opined that plaintiff would require a job that permits shifting
positions at will between sitting, standing, or walking. Dr. Bernstein further opined that
plaintiff would need to take four or five unscheduled breaks for a period of five to ten
minutes each during an eight-hour workday. Dr. Bernstein opined that plaintiff could
occasionally lift and carry ten pounds and frequently lift and carry less than ten pounds.
Dr. Bernstein opined that plaintiff could occasionally stoop, bend, crouch, squat, and
climb ladders or stairs, and could frequently twist. Dr. Bernstein estimated that plaintiff
- 18 -

would be absent from work more than four days a month as a result of her impairments or
treatment therefor. Dr. Bernstein reported that plaintiff experienced such limitations on
account of her impairments since August 2002. Dr. Bernstein also opined that plaintiff’s
chronic lethargy and frequent dizziness attributable to an inner ear condition and/or
medication side effects affected plaintiff’s ability to work. (Tr. 674-78.)
Dr. Scheperle completed a Physical RFC Questionnaire on October 25, 2011, in
which he reported that he began treating plaintiff in April 2009 for her diagnosed
conditions of neurofibroma, fibromyalgia, osteoarthritis, and pituitary adenoma. Dr.
Scheperle reported that plaintiff exhibited symptoms of subcutaneous fibromas, fatigue,
and chronic pain that included myofascial trigger pain and daily incapacitating pain.
Dr. Scheperle reported that plaintiff’s impairment was objectively seen through
myofascial triggers. Dr. Scheperle noted medication side effects to include fatigue and
poor sleep quality.

Dr. Scheperle opined that plaintiff’s depression and anxiety

contributed to plaintiff’s physical condition, but noted that plaintiff was being followed
by Dr. Jones for her psychiatric impairments. Dr. Scheperle opined that plaintiff’s pain
and other symptoms would constantly interfere with plaintiff’s concentration on a daily
basis. Dr. Scheperle opined that plaintiff would be incapable of tolerating work stress of
low stress jobs, noting that even low stress jobs tend to exacerbate plaintiff’s condition.
Dr. Scheperle opined that plaintiff could not walk any distance without rest or
severe pain; could sit for thirty minutes at one time; could stand for twenty minutes at one
time after which she must lie down or walk; could sit for a total of less than two hours in
an eight-hour workday; could stand and/or walk less than two hours in an eight-hour
workday; and must walk for fifteen minutes every fifteen minutes during an eight-hour
workday. Dr. Scheperle opined that plaintiff would require a job that permits shifting
positions at will between sitting, standing, or walking, but noted that plaintiff is unable to
work.
Dr. Scheperle further opined that plaintiff would need to take more than ten
unscheduled breaks for a period of fifteen minutes each during an eight-hour workday.
- 19 -

Dr. Scheperle opined that plaintiff’s legs should be elevated while sitting. Dr. Scheperle
opined that plaintiff could occasionally lift and carry ten pounds and less than ten pounds.
Dr. Scheperle opined that plaintiff could occasionally twist; could rarely stoop, bend,
crouch, or squat; and should never climb ladders or stairs. Dr. Scheperle estimated that
plaintiff would be absent from work about four days a month as a result of her
impairments or treatment therefor.
Dr. Scheperle reported that plaintiff experienced such limitations on account of her
impairments since April 30, 2009. Dr. Sheperle reported that “patient has challenges not
only with vocation, but has difficulty in maintaining self with [activities of daily living].
She follows routinely with her [appointments] with me and Dr. Jones. She is quite
motivated and smart yet physically impaired, which now mutually compromises patient.”
(Tr. 683-88.)
Plaintiff visited Dr. Randa Sawaf-Hajji at the South County Health Center on
October 26, 2011, for complaints relating to her thyroid condition and arthritic pain.
Plaintiff reported that she did not currently exercise but sometimes would walk one
block.

Plaintiff reported her current medications to be Synthroid, Liothyronine,

Cymbalta, Paxil, and Clonazepam.

Physical examination yielded normal results,

including normal strength and tone with no atrophy, spasticity, or tremors; and normal
gait and station. Plaintiff was provided medication for hypertension, and laboratory tests
and x-rays were ordered. (Tr. 704-06.)

IV. The ALJ's Decision
The ALJ found that plaintiff met the insured status requirements of the Social
Security Act through December 31, 2014. The ALJ found that plaintiff had not engaged
in substantial gainful activity since April 30, 2009, the alleged onset date of disability.
The ALJ found plaintiff’s degenerative disc disease of the lumbar spine; myalgia; chronic
pelvic pain arising from interstitial cystitis and residuals of endometriosis, uterine
prolapse, and associated reconstructive procedures; menopause; obesity; major
- 20 -

depressive disorder; and ADD to be severe impairments, but that plaintiff did not have an
impairment or combination of impairments that met or medically equaled an impairment
listed in 20 CFR Part 404, Subpart P, Appendix 1. (Tr. 13-23.) The ALJ determined that
plaintiff had the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b) with
the following additional limitations:
she can understand, remember, and carry out at least simple instructions
and non-detailed tasks; can respond appropriately to supervisors and
coworkers; can adapt to routine, simple work changes; can perform work at
a normal pace without production quotas; and should not work in a setting
which includes constant and regular contact with the general public.
(Tr. 23.) The ALJ found plaintiff unable to perform any of her past relevant work.
Considering plaintiff’s age, education, work experience, and RFC, the ALJ determined
plaintiff able to perform other work as it is exists in significant numbers in the national
economy, such as office helper and stock checker. The ALJ thus found plaintiff not to be
under a disability. (Tr. 31-33.)

V. Discussion
To be eligible for DIB under the Social Security Act, plaintiff must prove that she
is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v.
Secretary of Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992). 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 which has lasted or can be expected to last for a
continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). An individual
will be declared disabled "only if [her] physical or mental impairment or impairments are
of such severity that [she] is not only unable to do [her] previous work but cannot,
considering [her] age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy."
- 21 -

42 U.S.C. §

423(d)(2)(A).
To determine whether a claimant is disabled, the Commissioner engages in a fivestep evaluation process. See 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 14042 (1987). The Commissioner begins by deciding whether the claimant is engaged in
substantial gainful activity. If the claimant is working, disability benefits are denied.
Next, the Commissioner decides whether the claimant has a “severe” impairment or
combination of impairments, meaning that which significantly limits her ability to do
basic work activities. If the claimant's impairment(s) is not severe, then she is not
disabled. The Commissioner then determines whether claimant's impairment(s) meets or
equals one of the impairments listed in 20 C.F.R., Subpart P, Appendix 1. If claimant's
impairment(s) is equivalent to one of the listed impairments, she is conclusively disabled.
At the fourth step, the Commissioner establishes whether the claimant can perform her
past relevant work. If so, the claimant is not disabled. Finally, the Commissioner
evaluates various factors to determine whether the claimant is capable of performing any
other work in the economy. If not, the claimant is declared disabled and becomes entitled
to disability benefits.
The decision of the Commissioner must be affirmed if it is supported by
substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v.
Perales, 402 U.S. 389, 401 (1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002).
Substantial evidence is less than a preponderance but enough that a reasonable person
would find it adequate to support the conclusion. Johnson v. Apfel, 240 F.3d 1145, 1147
(8th Cir. 2001). This “substantial evidence test,” however, is “more than a mere search
of the record for evidence supporting the Commissioner’s findings.” Coleman v. Astrue,
498 F.3d 767, 770 (8th Cir. 2007) (internal quotation marks and citation omitted).
“Substantial evidence on the record as a whole . . . requires a more scrutinizing analysis.”
Id. (internal quotation marks and citations omitted).
To determine whether the Commissioner's decision is supported by substantial
evidence on the record as a whole, the Court must review the entire administrative record
- 22 -

and consider:
1.
2.
3.
4.
5.
6.

The credibility findings made by the ALJ.
The plaintiff's vocational factors.
The medical evidence from treating and consulting physicians.
The plaintiff's subjective complaints relating to exertional and nonexertional activities and impairments.
Any corroboration by third parties of the plaintiff's impairments.
The testimony of vocational experts when required which is based
upon a proper hypothetical question which sets forth the claimant's
impairment.

Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992)
(quoting Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989)). The Court must also
consider any evidence that fairly detracts from the Commissioner’s decision. Coleman,
498 F.3d at 770; Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999). However,
even though two inconsistent conclusions may be drawn from the evidence, the
Commissioner's findings may still be supported by substantial evidence on the record as a
whole. Pearsall, 274 F.3d at 1217 (citing Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir.
2000)). “[I]f there is substantial evidence on the record as a whole, we must affirm the
administrative decision, even if the record could also have supported an opposite
decision.” Weikert v. Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal quotation
marks and citation omitted); see also Jones ex rel. Morris v. Barnhart, 315 F.3d 974, 977
(8th Cir. 2003).

A.

Consideration of Opinion Evidence in Assessing RFC
Plaintiff claims that the ALJ’s RFC assessment is not supported by substantial

evidence on the record as a whole because of the ALJ’s failure to accord proper weight to
the opinions rendered by Drs. Scheperle and Bernstein. Plaintiff contends that the ALJ’s
determination to discount the opinions of these treating physicians left the record devoid
of opinion evidence, thereby resulting in the RFC assessment being unsupported by some
medical evidence in the record. For the following reasons, plaintiff’s arguments fail.
- 23 -

A claimant’s RFC is what a claimant remains able to do despite her limitations.
29 C.F.R. § 404.1545; Dunahoo v. Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001). The ALJ
bears the primary responsibility for assessing a claimant's RFC based on all relevant
evidence, including medical records, the observations of treating physicians and others,
and the claimant's description of her limitations. Krogmeier v. Barnhart, 294 F.3d 1019,
1024 (8th Cir. 2002); Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir. 2001); Dunahoo,
241 F.3d at 1039 (citing Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995)); see also
20 C.F.R. § 404.1545(a). An ALJ’s determination as to a claimant’s RFC must be
supported by some medical evidence in the record. Eichelberger v. Barnhart, 390 F.3d
584, 591 (8th Cir. 2004).
In evaluating opinion evidence, the Regulations require the ALJ to explain in the
decision the weight given to any opinions from treating sources, non-treating sources, and
non-examining sources. See 20 C.F.R. § 404.1527(f)(2)(ii).6 The Regulations require
that more weight be given to the opinions of treating physicians than other sources. 20
C.F.R. § 404.1527(d)(2). A treating physician's assessment of the nature and severity of
a claimant's impairments should be given controlling weight if the opinion is well
supported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with other substantial evidence in the record. Id.; see also Forehand v.
Barnhart, 364 F.3d 984, 986 (8th Cir. 2004). This is so because a treating physician has
the best opportunity to observe and evaluate a claimant's condition,
since these sources are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of [a claimant's] medical
impairment(s) and may bring a unique perspective to the medical evidence
that cannot be obtained from the objective medical findings alone or from
reports of individual examinations, such as consultative examinations or
brief hospitalizations.

Citations to 20 C.F.R. § 404.1527 are to the 2011 version of the Regulations, which were in
effect at the time the ALJ rendered the final decision in this cause. This Regulation’s most
recent amendment, effective March 26, 2012, reorganizes the subparagraphs relevant to this

6

- 24 -

20 C.F.R. § 404.1527(d)(2). However, a medical source’s opinion that an applicant is
“unable to work” involves an issue reserved for the Commissioner and is not the type of
opinion which the Commissioner must credit. Ellis v. Barnhart, 392 F.3d 988, 994-95
(8th Cir. 2005).
When a treating physician's opinion is not given controlling weight, the
Commissioner must look to various factors in determining what weight to accord the
opinion. 20 C.F.R. § 404.1527(d)(2). Such factors include the length of the treatment
relationship and the frequency of examination, the nature and extent of the treatment
relationship, whether the treating physician provides support for his findings, whether
other evidence in the record is consistent with the treating physician's findings, and the
treating physician's area of specialty. Id. The Regulations further provide that the
Commissioner “will always give good reasons in [the] notice of determination or decision
for the weight [given to the] treating source's opinion.” Id.
In his written decision here, the ALJ determined to accord little weight to the
opinions expressed in Dr. Scheperle’s October 2011 RFC Questionnaire, finding the
opinions to be internally inconsistent as well as inconsistent with Dr. Scheperle’s own
treatment records. These reasons to discount Dr. Scheperle’s opinions are supported by
substantial evidence on the record as a whole.
First, the ALJ detailed the exertional limitations Dr. Scheperle found plaintiff to
experience on account of her physical impairments, including the limitations that plaintiff
could stand and walk for less than two hours total in an eight-hour workday and could not
walk any city blocks without rest or pain. The ALJ noted, however, that such limitations
were inconsistent with Dr. Scheperle’s simultaneous opinion that plaintiff must walk
every fifteen minutes for fifteen minutes at a time, “which suggests continuous walking.”
(Tr. 25.) Internal inconsistencies in a physician’s opinion constitute good reason to
accord less deference to the opinion. Wagner v. Astrue, 499 F.3d 842, 849-50 (8th Cir.
2007) (and cases cited therein). The ALJ also noted that Dr. Scheperle’s own treatment
discussion but does not otherwise change the substance therein.
- 25 -

records were inconsistent with the extreme limitations set forth in the October 2011
Questionnaire. Specifically, the ALJ noted such records to show that Dr. Scheperle never
referred plaintiff to a specialist, never prescribed an assistive device, and never prescribed
narcotic pain medication and, further, that plaintiff’s physical examinations with Dr.
Scheperle were generally normal and demonstrated very few objective signs that would
support the extreme limitations set out in the October 2011 Questionnaire. Indeed, a
review of Dr. Scheplerle’s treatment notes shows only that plaintiff exhibited right flank
pain in May 2010 and complained of jaw pain in October 2010 with symptoms of TMJ.
After this October 2010 appointment, plaintiff did not visit Dr. Scheperle until May 2011,
at which time Dr. Scheperle first diagnosed plaintiff with fibromyalgia. As noted by the
ALJ, however, no objective signs of this impairment are recorded in Dr. Scheperle’s
treatment notes; nor is there any record of debilitating effects or associated treatment
consistent with the extreme limitations as later opined in October 2011.
Where limitations listed in a treating physician’s RFC assessment “‘stand alone’
and were ‘never mentioned in [the physician’s] numerous records of treatment’ nor
supported by ‘any objective testing or reasoning[,]’” an ALJ is permitted to discount the
opinions rendered in such assessment. Reed v. Barnhart, 399 F.3d 917, 921 (8th Cir.
2005) (quoting Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001)). See also Teague v.
Astrue, 638 F.3d 611, 615 (8th Cir. 2011) (little evidentiary weight accorded to functional
limitations set out in Medical Source Statement because previous treatment notes did not
report any significant limitations); Halverson v. Astrue, 600 F.3d 922, 930 (8th Cir. 2010)
(inconsistency between treating physician’s treatment records and his functional
assessment provides good reason for ALJ to discount physician’s opinion).
In addition, the ALJ found Dr. Scheperle’s opinions to be inconsistent with other
substantial evidence of record and to be based primarily on plaintiff’s subjective
complaints. These reasons to discount Dr. Scheperle’s opinions are likewise supported
by substantial evidence on the record as a whole. The ALJ thoroughly summarized the
objective medical evidence of record, which showed only mild and sporadic tenderness
- 26 -

of the spine; diagnostic images of mild degenerative changes to one level of the spine; no
atrophy, weakness, decreased range of motion, or positive trigger points; and no
abnormal gait or posture.
The ALJ further noted that plaintiff’s complaints of pelvic pain and associated
symptoms resolved during the alleged disability period with surgical procedures and
medication. Inconsistency with other substantial evidence is itself a sufficient reason to
discount a treating physician’s opinion. Goff v. Barnhart, 421 F.3d 785, 790-91 (8th Cir.
2005). Given the inconsistencies and lack of other evidence to support the limitations set
out in Dr. Scheperle’s October 2011 Questionnaire, the ALJ determined that such opined
limitations appeared to be overly based on plaintiff’s subjective complaints. Where a
treating physician’s opinions are largely based on a claimant’s subjective complaints
rather than on objective findings, an ALJ does not err in giving such opinions less than
controlling weight. Renstrom v. Astrue, 680 F.3d 1057, 1064 (8th Cir. 2012).
Finally, the ALJ accorded very little weight to Dr. Scheperle’s opinion that
plaintiff was “unable to work” inasmuch as such a finding is an issue reserved to the
Commissioner and cannot be determined by a physician. The ALJ did not err in this
determination. Ellis, 392 F.3d at 994-95.
With respect to the opinions expressed in Dr. Bernstein’s October 2011 RFC
Questionnaire, the ALJ first noted that, as a chiropractor, Dr. Bernstein was not an
acceptable medical source under the Regulations and thus not capable of rendering a
medical opinion as defined by the Regulations. This reason to discount the “medical”
opinion of Dr. Bernstein was not error. 20 C.F.R. § 404.1513(a), (d); Ingram v. Chater,
107 F.3d 598, 604 n.4 (8th Cir. 1997). As noted by the ALJ, however, evidence from a
chiropractor may be used to show how the severity of an impairment affects a claimant’s
ability to work. 20 C.F.R. § 404.1513(d); see also McDade v. Astrue, 720 F.2d 994, 999
(8th Cir. 2013).

The ALJ considered Dr. Bernstein’s opinions in this vein and

determined to accord the opinions very little weight. For the following reasons, this
determination was not error.
- 27 -

First, the ALJ noted that Dr. Bernstein set out exertional limitations in his October
2011 Questionnaire that, among other things, limited plaintiff to standing/ walking less
than two hours in an eight-hour workday and limited her lifting to no more than ten
pounds.

The ALJ also noted that Dr. Bernstein reported in the Questionnaire that

plaintiff suffered from these limitations since he began treating her in August 2002. As
noted by the ALJ, however, plaintiff worked full time through April 2009 with such work
requiring lifting more than 100 pounds and standing for three to four hours each day.
Because the plaintiff performed substantial work activity with exertional abilities greatly
exceeding those as opined by Dr. Bernstein and during the period in which Dr. Bernstein
opined that plaintiff was so limited, the ALJ did not err in according little weight to Dr.
Bernstein’s opinions because of their inconsistency with this other evidence. Goff, 421
F.3d at 790-91.
The ALJ also determined to accord little weight to Dr. Bernstein’s opinions to the
extent they addressed plaintiff’s psychological factors and medication side effects,
finding such matters to be outside of Dr. Bernstein’s purview. This determination was
not error. See Brosnahan v. Barnhart, 336 F.3d 671, 676 (8th Cir. 2003) (ALJ properly
discounted provider’s opinion because it was based partly on area outside of provider’s
expertise).
Finally, the ALJ determined to accord little weight to Dr. Bernstein’s opinions
inasmuch as they were unsupported by other evidence of record. For the same reasons as
discussed supra with respect to the lack of substantial evidence supporting Dr.
Scheperle’s opinions, the ALJ did not err in making this same finding with respect to Dr.
Bernstein’s opinions.
Plaintiff appears to argue that her diagnosed condition of depression, as credited
by the ALJ’s determination to accord great weight to Dr. Bassi’s Mental RFC
Assessment, provides support for Dr. Scheperle’s medical opinion regarding her physical
limitations. Depression, when diagnosed by a medical professional, can act as objective
medical evidence of pain to the same extent as an x-ray film. See Cox v. Apfel, 160 F.3d
- 28 -

1203, 1207 (8th Cir. 1998) (citing 20 C.F.R. §§ 404.1508, 404.1528.) In Cox, however,
the claimant was repeatedly diagnosed with depression that caused exaggerated feelings
of pain. Id. at 1206. Here, the only reference to plaintiff’s depression having a pain
component is that made by Drs. Bernstein and Scheperle in their October 2011 RFC
Questionnaires. As noted above, such opinions as to plaintiff’s psychological impairment
are outside the purview of these providers’ specialties and thus not entitled to great
weight. See Brosnahan, 336 F.3d at 676. Further, none of plaintiff’s mental health
providers at Psych Care Consultants nor any other physician treating plaintiff’s
symptoms of depression recorded in their treatment notes or otherwise that plaintiff’s
depression contributed to her perception of pain. As such, in the circumstances of this
case, the ALJ’s failure to credit Dr. Scheperle’s opinions as to plaintiff’s physical
limitations on the basis of plaintiff’s diagnosed mental impairment, with nothing more,
was not error.
Finally, plaintiff appears to argue that by discounting the opinions of Drs.
Scheperle and Bernstein, the record was devoid of any medical opinion evidence upon
which the ALJ could base his RFC assessment. Plaintiff’s argument is misplaced. As an
initial matter, the undersigned notes that the ALJ did not entirely discredit this opinion
evidence, as averred by plaintiff, but considered such evidence and accorded it little
weight. Nevertheless, 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” in
determining a claimant’s RFC. Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011)
(internal quotations marks and citation omitted) (alteration in Martise). Instead, the ALJ
is required to consider the entirety of the record when determining a claimant’s RFC,
which is what the ALJ did here. Cf. Holmstrom v. Massanari, 270 F.3d 715, 720-21 (8th
Cir. 2001) (ALJ did not err in discounting opinion evidence where other medical records
show the effect of claimant’s impairments).
A review of the ALJ’s decision shows the ALJ to have conducted an exhaustive
review of the medical evidence of record, including opinion evidence and observations of
- 29 -

treating physicians and others. The ALJ evaluated all of the opinion evidence of record
and provided good reasons for the weight accorded to each opinion. For the reasons set
out above, substantial evidence on the record as whole supports the ALJ’s determination
as to the weight he accorded the opinion evidence in this cause.
In addition, upon conclusion of his discussion of specific medical facts,
nonmedical evidence, and the consistency of such evidence when viewed in light of the
record as a whole, the ALJ assessed plaintiff’s RFC and specifically set out plaintiff’s
non-exertional limitations and work-related activity plaintiff could perform based on the
evidence available in the case record.

Because the extensive medical records –

thoroughly reviewed by the ALJ – provide some medical evidence to support the ALJ’s
RFC determination, the determination must stand. See Steed v. Astrue, 524 F.3d 872, 876
(8th Cir. 2008). Although not all the medical evidence “pointed in that direction,” there
nevertheless was a sufficient amount that did. The ALJ’s determination must therefore
be upheld even if the record could also support an opposite decision. See Moad v.
Massanari, 260 F.3d 887, 891 (8th Cir. 2001); Weikert, 977 F.2d at 1252. See also
Phillips v. Colvin, 721 F.3d 623, 629 (8th Cir. 2013) (it is the duty of the Commissioner
to resolve conflicts in the medical evidence).

B.

Failure to Consider SSR 02-2p for Interstitial Cystitis
Plaintiff claims that the ALJ erred in his decision by failing to undergo the

analysis required by Social Security Ruling 02-2p governing diagnosed conditions of
interstitial cystitis. For the following reasons, the ALJ did not err.
Social Security Ruling 02-2p clarifies the Commissioner's policies for evaluating
claims for disability on the basis of interstitial cystitis. SSR 02-2p, 2002 WL 32063799
(Soc. Sec. Admin. Nov. 5, 2002). The Ruling explains that interstitial cystitis is a
“complex, chronic bladder disorder characterized by urinary frequency, urinary urgency,
and pelvic pain” and “may be associated with other disorders, such as fibromyalgia, . . .
irritable bowel syndrome, inflammatory bowel disease, [and] endometriosis[.]” Id. at *1.
- 30 -

The Ruling cautions that “[a]n assessment should be made of the effect interstitial cystitis
has upon the individual's ability to perform routine movement and necessary physical
activity within the work environment,” noting that interstitial cystitis can affect the ability
to focus and sustain attention on the task at hand due to chronic pelvic pain; can lead to
drowsiness and lack of mental clarity during the day because of nocturia (nighttime
urinary frequency) that may disrupt sleep patterns; or can necessitate trips to the
bathroom as often as every 10 to 15 minutes, day and night, because of urinary
frequency. Id. at **5-6.
Here, the ALJ referred to SSR 02-2p in determining plaintiff’s interstitial cystitis
not to meet or medically equal a listed impairment when considered in conjunction with
her other impairments. (Tr. 20.) In addition, the ALJ thoroughly summarized the
treatment rendered for plaintiff’s interstitial cystitis and related conditions, noting
specifically that a combination of surgical procedures and medications resulted in
significant improvement, with plaintiff reporting no bladder problems at subsequent
appointments and not requiring any additional treatment.

(Tr. 24-25.)

evidence on the record as a whole supports this finding.

Substantial

Impairments that are

controllable or amenable to treatment do not support a finding of disability. Roth v.
Shalala, 45 F.3d 279, 282 (8th Cir. 1995).
Contrary to plaintiff’s assertion, the ALJ here addressed SSR 02-2p when
considering plaintiff’s diagnosed impairment of interstitial cystitis and determined the
evidence to show the effects of such impairment not to preclude plaintiff’s performance
of all work-related activities. Substantial evidence on the record as a whole supports this
determination.

C.

Failure to Follow Prescribed Treatment
Plaintiff argues that the ALJ erred in his consideration of plaintiff’s failure to

follow prescribed treatment inasmuch as he failed to undergo the required analysis to
determine whether compliance with such treatment would have restored plaintiff’s ability
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to perform work-related activity. Plaintiff’s argument is misplaced.
“Failure to follow a prescribed course of remedial treatment without good reason
is grounds for denying an application for benefits.” Roth, 45 F.3d at 282. Before a
claimant is denied benefits because of a failure to follow a prescribed course of treatment,
the ALJ must examine the circumstances surrounding such failure and determine on the
basis of the evidence of record whether the prescribed treatment would restore the
claimant’s ability to work or sufficiently improve her condition. Burnside v. Apfel, 223
F.3d 840, 843-44 (8th Cir. 2000); 20 C.F.R. § 404.1530(a).
Here, the ALJ did not base his determination of non-disability on plaintiff’s failure
to comply with prescribed treatment. Although plaintiff appears to assert that the ALJ
determined that her failure to follow prescribed treatment precluded a finding of
disability, a review of the ALJ’s decision shows it not to contain such a determination.
Instead, the ALJ considered plaintiff’s noncompliance with treatment only in relation to
determining plaintiff’s credibility.7 (See Tr. 29-30.) Such consideration is permissible.
Wildman v. Astrue, 596 F.3d 959, 968-69 (8th Cir. 2010).
A review of the ALJ’s decision shows that the ALJ considered the entirety of the
record in determining whether plaintiff’s impairments were disabling. Although the ALJ
considered evidence of plaintiff’s noncompliance with prescribed treatment as a factor in
determining credibility, which he is permitted to do, the ALJ did not base his adverse
determination only on such noncompliance. The ALJ was therefore not required to
examine the circumstances surrounding plaintiff’s noncompliance and determine on the
basis of the evidence of record whether the prescribed treatment would restore plaintiff’s
Although plaintiff does not challenge the ALJ’s credibility determination here, a review of the
ALJ’s decision nevertheless shows that, in a manner consistent with and as required by Polaski
v. Heckler, 739 F.2d 1320 (8th Cir. 1984) (subsequent history omitted), the ALJ thoroughly
considered the subjective allegations of plaintiff’s disabling symptoms on the basis of the entire
record before him and set out numerous inconsistencies detracting from the credibility of such
allegations. The ALJ may disbelieve subjective complaints where there are inconsistencies on
the record as a whole. Battles v. Sullivan, 902 F.2d 657, 660 (8th Cir. 1990). Because the ALJ's
credibility determination is supported by substantial evidence on the record as a whole, this
7

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ability to work or sufficiently improve her condition.

D.

Hypothetical Question Posed to Vocational Expert
Based on her arguments above that the ALJ failed to properly weigh the opinion

evidence in this cause and that no medical evidence supported the ALJ’s RFC
assessment, plaintiff contends that the RFC assessment was necessarily flawed and thus
provided an insufficient basis for the hypothetical question posed to the vocational
expert.

Plaintiff argues, therefore, that the vocational expert’s testimony given in

response to this hypothetical question cannot constitute substantial evidence to support
the ALJ’s adverse decision. Other than the arguments discussed supra, plaintiff provides
no additional argument nor identifies any other issue relating to the hypothetical question
posed to the vocational expert or the ALJ’s reliance on testimony given in response
thereto. Nor does plaintiff present any argument or evidence demonstrating that she
suffered restrictions more limiting than as determined by the ALJ and posed to the
vocational expert in the hypothetical. Cf. Robson v. Astrue, 526 F.3d 389, 393 (8th Cir.
2008) (claimant did not identify what limitations were missing from hypothetical). An
ALJ is not required to disprove every possible impairment. McCoy v. Astrue, 648 F.3d
605, 612 (8th Cir. 2011).
For the reasons set out above on the claims raised by plaintiff, the ALJ did not err
in his consideration of the relevant medical and other evidence in this cause, including
opinion evidence, in determining plaintiff’s RFC. Because the ALJ’s RFC assessment
was supported by substantial evidence, the hypothetical question based on this RFC was
proper.

Accordingly, the vocational expert’s testimony given in response to this

hypothetical question constituted substantial evidence to support the ALJ’s decision.
Renstrom, 680 F.3d at 1067-68; Martise, 641 F.3d at 927.

Court is bound thereby. Robinson v. Sullivan, 956 F.2d 836, 841 (8th Cir. 1992).
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VI. Conclusion
For the reasons set out above, the Commissioner’s decision that plaintiff was not
disabled is supported by substantial evidence on the record as a whole.
Commissioner's final decision is affirmed.
A separate Judgment Order is issued herewith.

/s/ David D. Noce
UNITED STATES MAGISTRATE JUDGE

Signed this 21st day March, 2014.

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The