Hale v. Colvin
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and this matter is remanded pursuant to the fourth sentence of 42 U.S.C. § 405 (g) for further proceedings. A separate Judgment in accordance with this Memorandum and Order will be entered this same date. Signed by District Judge Carol E. Jackson on 8/25/2014. (KMS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CINDY R. HALE,
CAROLYN W. COLVIN, Commissioner
of Social Security,
Case No. 4:13-CV-578 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court for review of an adverse ruling by the Social
I. Procedural History
On November 26, 2007, plaintiff Cindy Hale filed an application for a period of
disability and disability insurance benefits under Title II of the Social Security Act, 42
U.S.C. §§ 401 et. seq., and for supplemental security income (SSI), Title XVI, 42
U.S.C. §§ 1381 et seq., (Tr. 277-290), with an alleged onset date of October 19, 2007.
After plaintiff’s application was denied on initial consideration (Tr. 137-141), she
requested a hearing from an Administrative Law Judge (ALJ). See Tr. 143-147, 149156, 177-183 (acknowledging request for hearing).
Plaintiff and counsel appeared for a hearing on November 5, 2009. (Tr. 75-99)
The ALJ issued a decision on December 9, 2009 denying plaintiff’s application. (Tr.
103-121). The Appeals Council granted plaintiff’s request for review. On March 9,
2011, the Appeals Council vacated the decision and remanded with instructions. (Tr.
Plaintiff and counsel appeared for a second hearing on September 29, 2011. (Tr.
38-74). The ALJ issued a decision on February 24, 2012 denying plaintiff’s application.
(Tr. 12-37), and the Appeals Council denied plaintiff’s request for review on January
23, 2013. (Tr. 1-6). Accordingly, this decision stands as the Commissioner’s final
II. Evidence Before the ALJ
A. Disability Application Documents
In her Disability Report (Tr. 351-358), plaintiff wrote that she was 5'1" tall and
weighed 226 pounds.
She listed her disabling conditions as an aneurysm and
headaches. She wrote that these conditions cause her pain, fatigue, temporary driving
restrictions, and an inability to lift heavy items. She listed her past employment as a
retail cashier and stocker, cook, disc jockey, manager at a beauty supply store, phone
operator, residential construction, and waitress. Plaintiff completed beauty school and
three years of college.
In her Supplemental Questionnaire (Tr. 359-368), plaintiff listed her disabling
conditions as an aneurysm, headaches, high blood pressure, and dizziness. Plaintiff
wrote that her symptoms include pain in the “location of [her] surgery” and short term
memory loss. She wrote that she experiences dizziness and sleepiness as the side
effects of her medication. Plaintiff wrote that she lives by herself and cares for her 12year-old child every other weekend. She stated that she is able to use a checkbook,
complete a money order, count change, do laundry, clean dishes, make her bed, iron,
grocery shop, go to the post office, watch television, listen to music, and read. Plaintiff
wrote that because of her dizziness she is unable to vacuum or sweep, take out the
trash, perform home repairs or car maintenance, mow the lawn, rake leaves, or
garden. She stated that she is unable to sleep for more than four hours at a time, that
she has trouble climbing the stairs to use her bathtub, that she is afraid to leave her
home because she fears falling from dizziness, and that she has difficulties following
written or verbal instructions because of memory loss. Plaintiff stated that she has
problems getting along with other people because she is easily aggravated and has a
short temper. Plaintiff described her average daily activities as eating, taking
medication, watching television, doing laundry, and going to sleep. She stated that she
has a valid driver’s license and is able to drive.
In her Disability Report-Appeal (Tr. 390-395), plaintiff stated that since the
initial report she had developed severe back and knee pain from degenerative arthritis,
increased headaches and scalp pain, a fear of dying, extreme mood changes, an
inability to sleep for more than three hours, and difficulty sitting or standing for more
than 30 minutes at one time. She stated that her severe back pain prevents her from
bathing, using the restroom, cooking, doing laundry, cleaning, combing her hair, and
shopping for groceries.
B. Hearing on November 5, 2009
At the time of the hearing, plaintiff was 45 years old, 5'2" tall, and weighed 241
pounds. Plaintiff completed some college work and obtained a certificate in construction
technology. (Tr. 80). Plaintiff testified that she drove to the hearing alone, but that
she typically has someone with her when she drives because she tends to get lost. (Tr.
81). Plaintiff testified that her medication side effects include fatigue and lack of
motivation. (Tr. 82). Plaintiff stated that subsequent to her alleged onset date, she
worked as a hostess at a restaurant for two hours a day for four days a week. She
stated that she was only employed there for one month because she was unable to do
certain tasks and because they could not provide her with enough hours. (Tr. 82).
After leaving that job, plaintiff visited a career center and researched possible
employment, but did not submit any applications. (Tr. 83).
Plaintiff testified that she suffers from constant numbness in her right hand and
pain in her back, neck, right leg and toes. (Tr. 83, 85). She testified that standing
exacerbates her pain and that she can stand for about six minutes before needing to
sit. (Tr. 85). Plaintiff testified that she has difficulty turning her head, reaching her
arms over her head, and bending over. (Tr. 84). She stated that her mother cleans
her house every two months, but that she is able to wash her own dishes, dust, do
small loads of laundry, and cook simple meals. (Tr. 89).
Plaintiff testified to seeing a physical therapist who taught her stretching
exercises that help alleviate her back pain. Plaintiff stated that she lies on her back
and stretches at least five times per day for two to three minutes each time. (Tr. 86).
Plaintiff testified that she has to use the restroom every hour and that because of this
issue she wears a diaper or urinary pad. She stated that she also suffers from panic
attacks three to four times a week and experiences nightmares several times each
night. (Tr. 87-88). Plaintiff explained that she sleeps on and off for five hours per night
and that she has trouble staying awake during the day. (Tr. 88). Plaintiff had keratitis
in her right eye, but that issue had been resolved by the time of the hearing. (Tr. 9091).
George H. Horne, M.S., a vocational expert, provided testimony regarding
plaintiff’s past work and current employment opportunities. (Tr. 93-98). Mr. Horne
listed plaintiff’s vocational history and classified each position as follows: beauty
equipment supplies sales representative, light skilled work with a Specific Vocational
Preparation (SVP) of 5;1 house builder, medium skilled work with a SVP of 7;2
The SVP level listed for each occupation in the Dictionary of Occupational Titles
(DOT) connotes the time needed to learn the techniques, acquire the information, and
develop the facility needed for average work performance. Hulsey v. Astrue, 622 F.3d
cashier/checker, light to medium semi-skilled work with a SVP of 3;3 and short order
cook, light to medium semi-skilled work with a SVP of 3.
The ALJ asked Mr. Horne to assume that plaintiff was 43 to 46 years of age, that
she had greater than a high school education, that she performed the jobs previously
described, and that she had a history of a ruptured aneurysm, status post-clipping,
headaches, post-traumatic stress disorder, generalized anxiety disorder, degenerative
disc disease of the lumbar and cervical spine with a congenital fusion at cervical disk
3/4, obesity, stress and urge urinary incontinence, hyperlipidemia, high blood pressure,
history of a fracture of the left fifth metatarsal, and filamentary keratitis. The ALJ asked
Mr. Horne to further assume that plaintiff was restricted to performing only sedentary
work, with a limitation of lifting and carrying up to 10 pounds occasionally, 5 pounds
frequently, standing and walking up to 2 hours a day for no more than 30 minutes at
a time, and sitting for 6 to 8 hours in an 8-hour work day, with a need to alternate
sitting with standing at approximately 30-minute intervals. The ALJ added additional
limitations, including: no exposure to significant heights, unguarded moving machinery,
or extreme vibration, no commercial driving, a need for a climate controlled work
environment, a need for simple repetitive job instructions, no contact with the public,
and no more than minimal contact with coworkers and supervisors.
The ALJ then asked whether an individual with the above restrictions would be
able to perform plaintiff’s past work. Mr. Horne answered in the negative and explained
917, 923 (8th Cir. 2010). SVP level 5 covers occupations that require over 6 months
up to and including 1 year. 20 C.F.R. § 656.3.
SVP level 7 covers occupations that require over 2 years up to and including
4 years. Id.
SVP level 3 covers occupations that require over 30 days and up to and
including 3 months. Id.
that all of plaintiff’s past work would require the individual to be on his or her feet the
majority of the work day. Mr. Horne further testified that an individual with the above
restrictions could perform the work of a final assembler (of which there are 1,000 jobs
in Missouri) and a table worker (of which there are 800 jobs in Missouri). However,
Mr. Horne testified that these jobs would be precluded if the hypothetical individual
needed to have access to a restroom on an hourly basis.
C. Hearing on September 29, 2011
At the start of the hearing, the ALJ briefly summarized plaintiff’s medical record
by listing obesity with lumbago and sciatica, bilateral upper extremity cervicalgia, and
lumbar degenerative disc disease with arthrosis as plaintiff’s diagnosed impairments.
The ALJ noted that the medical record contained references to insomnia, persistent
disorder of wakefulness, incontinence, possible cervical herniation, Baker’s cyst of the
right knee, generalized anxiety disorder, post-traumatic stress disorder, cervical
degenerative disc disease, congenital cervical fusion, possible extrusion at 25F/8, and
depressive disorder. (Tr. 41, 43).
Plaintiff testified to being 5'3" tall and weighing 248 pounds. She stated that her
last job was as a restaurant hostess, but that she quit because it was too painful to
walk. (Tr. 43). Plaintiff stated that she was not seeing a therapist for her depression
because she had lost her Medicaid benefits. (Tr. 43-44). She stated that she saw a
therapist on a weekly basis from 2009 to 2010, but she could not remember his name.4
(Tr. 62-64). Plaintiff stated that she has difficulties turning her head and holding her
arms out and that she has pain at her waistline that radiates down to her lower
The ALJ left the record open for 30 days after the hearing in order for plaintiff
to submit medical records documenting these 2009-2010 therapy appointments.
Plaintiff failed to submit any additional records. [Doc. #10-3, at p. 25].
extremities. (Tr. 46-48). She stated that she no longer receives treatment for her pain
because she has no Medicaid coverage. But, when she was receiving treatment she
was given injections which allowed her to perform certain activities with less difficulty.
(Tr. 47, 55). Plaintiff was told by her doctor to obtain a polysomnogram so that the
cause of her insomnia could be determined. Plaintiff testified that she did not get the
test because her “Medicaid ran out.” (Tr. 48).
Plaintiff stated that she smokes a pack of cigarettes per day. Plaintiff explained
that she used to smoke a pack and a half per day, but that she cut down because of
the expense. (Tr. 49-50). Plaintiff stated that she does not drive and does not use an
ambulatory device. (Tr. 50-51). She testified to having an aching pain in her right
knee, but described it as the least of her problems. (Tr. 51-52). Plaintiff stated that her
back pain is exacerbated by standing, walking, or bending. (Tr. 53-54). She stated that
she used to take hydrocodone for the pain, but that her current treatment facility does
not dispense narcotics. (Tr. 54). She testified that she has constant numbness and
tingling in her hands and difficulties gripping items. (Tr. 55-56). Plaintiff stated that she
has incontinence and that she urinates on herself when coughing, sneezing, bending
over, or laughing. Plaintiff stated that she has to change her clothes or urinary pad
approximately 15 times per day. (Tr. 56-57).
Plaintiff stated that she feels hopeless most of the time and that she frequently
cries and does not want to be around others. Plaintiff stated that her pain exacerbates
the depression and that at least three days a week she wakes up in extreme pain. (Tr.
58). She testified that she can tolerate sitting for 15 to 20 minutes before she needs
to stand. (Tr. 59). Although she lives in a two-story townhouse, plaintiff typically sleeps
downstairs because climbing the stairs causes pain in her lower back. (Tr. 60). Plaintiff
stated that her mother and a friend clean her house. (Tr. 60-61). Plaintiff stated that
on a typical day she reads, sleeps, and takes a bath. She stated that she has some
problems concentrating when she reads and that she tries to avoid watching television
because it makes her sleepy. (Tr. 61). Plaintiff stated that a friend takes her to the
grocery store and that she uses a wheelchair while shopping. She is not involved in any
activities outside of the home. (Tr. 62).
Terri Crawford, M. Ed., a vocational expert, provided testimony regarding
plaintiff’s past work and current employment opportunities. (Tr. 64-73). Ms. Crawford
classified plaintiff’s previous positions as follows: cook, light semi-skilled work with a
SVP of 3; house builder, medium skilled work with an SVP of 7; and cashier II, light
unskilled work with an SVP of 2. (Tr. 67-68).
The ALJ asked Ms. Crawford about the available employment opportunities for
a hypothetical individual with the same vocational background as plaintiff who has the
following limitations: overarching residual functional capacity for sedentary work; no
reaching above the head bilaterally; decreased use of the neck by ten degrees in all
directions; no bilateral pushing or pulling with the lower extremities; occasional
bending, twisting and turning; no crawling or kneeling for competitive purposes; less
than occasional stooping and squatting; occasional stair climbing; no climbing of ropes,
ladders, or scaffolds; frequent gripping, grasping, wrist movements, handling,
fingering, and feeling; no pushing or pulling of levers with the upper extremities
bilaterally; no use of air or vibrating tools or motor vehicles; no work at unprotected
heights; no work in extreme cold, heat or humidity; occasional contact with the public,
co-workers, and supervisors; and a marked limitation in carrying out complex
instructions. (Tr. 69-70).
Ms. Crawford stated that such an individual could not perform any of plaintiff’s
past work. However, she testified that the hypothetical individual could perform some
sedentary, light unskilled work in the national economy, including production assembler
(of which there are 750 jobs in Missouri); general clerk (of which there are 1,200 jobs
in Missouri); and electronics assembler (of which there are 1,400 jobs in Missouri).
The ALJ then asked about the available employment opportunities for the same
hypothetical individual, but with an additional limitation that she have no contact with
the public. Ms. Crawford stated that the general clerk job would be eliminated from
the list of available employment, but that the hypothetical individual could perform the
sedentary, medium unskilled work of a hand packager (of which there are 1,200 jobs
within the state of Missouri). (Tr. 70-71).
Ms. Crawford further testified that if the hypothetical individual was limited to
only occasional handing, then that individual would not be able to perform any of the
listed jobs or any other jobs in the national economy. (Tr. 71-72). Ms. Crawford also
testified that if the individual could not perform activities within a schedule or maintain
regular attendance or be punctual, then that individual would also not be able to
perform any of the listed jobs or any other jobs in the national economy. (Tr. 72).
D. Medical Evidence
On October 15, 2007, plaintiff went to the emergency room at St. John’s
Regional Health Center with complaints of right eye pain.
She was given an eye
ointment, an oral antibiotic, and told to follow up with a ophthalmologist. (Tr. 575,
581-586). Plaintiff followed up with William Hecox, O.D., at the Walmart Vision Center
who diagnosed her with filamentary keratitis. (Tr. 515).
On October 17, 2007, plaintiff went to the emergency room at St. John’s with
complaints of head pain, nausea, and vomiting. (Tr. 456-458, 469-70, 536-537). A
head CT scan revealed a subarachnoid hemorrhage. (Tr. 459, 473, 538). Further
testing revealed a right internal carotid aneurysm. (Tr. 471-472, 474-475, 539). On
October 19, 2007, plaintiff underwent a craniotomy for clipping of the aneurysm. (Tr.
479-480, 544-545). Plaintiff was discharged in stable condition on October 29, 2007.
(Tr. 489-490, 552). Discharge paperwork states that she was receptive to cigarette
smoking cessation. (Tr. 553). On October 30, 2007, plaintiff saw her primary doctor
for a blood pressure check. (Tr. 592-593).
On November 12, 2007, plaintiff saw Allison Randle, PA ES, at St. John’s Spine
Center for a postoperative follow up appointment. (Tr. 466, 530-534). Plaintiff reported
some headaches, but denied nausea, vomiting, visual changes, and dizziness. Plaintiff
was told that headaches were normal subsequent to a clipping. Plaintiff reported that
she had quit smoking. After physical examination, plaintiff was described as alert and
oriented, in no apparent distress, neurologically intact and stable, and doing extremely
well. The restrictions on any type of straining or activity were lifted.
On January 10, 2008, a medical consultant completed a physical residual
functional capacity assessment (PRFCA). (Tr. 381-386). The consultant determined
that plaintiff had the capacity to occasionally lift and/or carry 20 pounds; frequently lift
and/or carry 10 pounds; stand and/or walk for a total of about 6 hours in an 8-hour
workday; sit for a total of about 6 hours in an 8-hour workday; frequently climb ramps
or stairs; and frequently balance, stoop, kneel, crouch, or crawl. She was restricted
from climbing ladders, ropes, or scaffolds, and restricted from encountering hazards
such as machinery or heights.
On January 15, 2008, plaintiff went to the Ozarks Community Hospital for a
blood pressure check. She also complained of scalp pain. Plaintiff’s was prescribed
Atenolol.5 (Tr. 502-503). On January 21, 2008, plaintiff saw Ms. Randle for another
post-operative follow-up appointment. Plaintiff reported minimal headaches, memory
loss, anxiety, and sleep deprivation. Plaintiff expressed that she was often worried
about having another ruptured aneurysm. The treatment notes state that while plaintiff
did not appear to be depressed, seeing a counselor could be worthwhile. (Tr. 629).
Plaintiff returned to Ms. Randle on July 28, 2008 with reports that she was doing well
and that she suffered from occasional migraines and anxiety. Ms. Randle suggested
that she see a psychotherapist. (Tr. 626). On August 17 2008, plaintiff went to the
emergency room at St. John’s with complaints of back pain. (Tr. 623). She was
discharged the same day with instructions to ice her back. She was prescribed Norco6
On August 20, 2008, plaintiff saw David Paff, M.D. for a disability evaluation at
the request of the Department of Family Services. (Tr. 505-507, 519-523). Dr. Paff
wrote that during the physical examination plaintiff would not attempt to walk without
her walker, could not get up on the examination table, and would not bend forward or
squat. Dr. Paff wrote that the exam was difficult because plaintiff was unable to
Atenolol is used alone or in combination with other medications to treat high
Norco is the brand name for hydrocodone and is prescribed to relieve
moderate to severe pain. http://www.nlm.nih.gov/medlineplus/druginfo/meds/
a601006.html (last visited Apr. 15, 2014).
Flexeril is the brand name for Cyclobenzaprine and is used with rest, physical
therapy, and other measures to relax muscles and relieve pain and discomfort caused
by strains, sprains, and other muscle injuries. http://www.nlm.nih.gov/medlineplus/
druginfo/meds/a682514.html (last visited Apr. 15, 2014).
cooperate. An electrocardiogram revealed normal results; a cervical spine x-ray
showed congenial fusion at C3 and C4 and degenerative disc disease at C4-5, C5-6,
and C6-7; a lumbar spine x-ray showed mild diffuse lumbar degenerative disc disease
and mild L5-S1 facet joint arthrosis; and laboratory testing showed elevated blood
glucose and elevated white count with a left shift. Dr. Paff wrote that plaintiff was
morbidly obese with hypertension, hyperlipidemia, keratitis of her right eye, a Baker’s
cyst in her right knee, some degenerative disc disease, and possible early diabetes.
Dr. Paff concluded that it was “not possible to be sure that she will be disabled for a
year, but she may well be, as she has multiple health problems.” (Tr. 507).
On August 25, 2008, plaintiff went to the emergency room at St. John’s with
complaints of right leg numbness. (Tr. 618, 621). A CT scan of the lumbar spine
revealed mild disc degeneration and spondylosis with no evidence of fracture or
listhesis. (Tr. 620). She was discharged on the same day with a diagnosis of low back
pain and parasthesia of the right posterior leg, thigh, and buttocks. She was instructed
to stay in bed for three days, minimize pressure on the right buttock, and take
Ibuprofen and Tramadol8 as needed for pain. (Tr. 619).
On September 22, 2008, plaintiff saw Michelle Barg, M.D. in order to establish
a primary care physician. On September 29, 2008, plaintiff returned to Dr. Barg with
complaints of chronic low back pain. Plaintiff was provided a Vicodin refill. (Tr. 606).
On October 20, 2008, plaintiff saw Dr. Barg for a follow-up appointment regarding her
back pain. Dr. Barg noted that the CT scan revealed no abnormalities and the MRI
Tramadol is in a class of medications called opiate (narcotic) analgesics and is
used to relieve moderate to moderately severe pain. http://www.nlm.nih.gov/medlinep
lus/druginfo/meds/a695011.html (last visited Apr. 15, 2014).
revealed no significant disc abnormality. Dr. Barg referred plaintiff to a pain
management specialist and a physical therapist. (Tr. 602-603).
On October 27, 2008, plaintiff saw Osvaldo Acosta-Rodriguez, M.D. for low back
pain radiating to her right hip. Dr. Acosta-Rodriguez performed a standard distraction
of the leg, an adjustment of the pelvis, and a lumbar roll. At the end of the
appointment, plaintiff was completely in alignment throughout her thoracic and lumbar
spine and the pelvis and SI joints. (Tr. 604-605). Plaintiff reported that her pain had
decreased dramatically. An x-ray of the right hip showed no abnormalities. (Tr. 666).
Her diagnosis was listed as right SI joint dysfunction and lumbar and pelvic somatic
dysfunctions. (Tr. 604). The following day, plaintiff saw Dr. Barg with complaints of
right-side rib pain. Plaintiff reported that she did not have any back pain. (Tr. 600601). On November 3, 2008, plaintiff saw Dr. Barg for a cracked lip and a swollen chin.
She was diagnosed with impetigo and prescribed an antibiotic. (Tr. 599).
On October 29, 2008, plaintiff began physical therapy with Kerri Wallace, MPT.
(Tr. 695-696). Plaintiff tolerated treatment with continuous verbal and visual
expressions of pain. However, Ms. Wallace wrote that plaintiff’s pain appeared to be
alleviated. Plaintiff returned for physical therapy on November 4, November 11,
November 18, and November 26, 2008. (Tr. 692-693).
On November 20, 2008, plaintiff saw Dr. Acosta-Rodriguez for a follow up
appointment. (Tr. 661-663). Plaintiff reported that she was doing well, but that two
days prior she began to have right hip pain while doing housework. She denied lower
back or rib pain. A physical examination revealed excellent range of motion, normal
joint examinations, no evidence of weakness or asymmetry, and possible lumbar and
pelvic somatic dysfunction. Dr. Acosta-Rodriguez adjusted her lumbar spine and S1
joint and administered an injection of Depo-Medrol and lidocaine, which plaintiff
reported completely relieved the pain.
On December 3 and December 11, 2008, plaintiff returned to physical therapy.
She reported that her back pain was a 6 on a 10-point scale. She stated that her pain
increased since beginning a job as a cook at a restaurant where she worked four hours
per day. (Tr. 690-691). On December 5, 2008, plaintiff was administered a cervical
facet pain injection. (Tr. 731-732). Plaintiff continued receiving physical therapy until
May 19, 2009, which is documented as her last appointment. (Tr. 676).
On January 29, 2009, plaintiff saw Dr. Brian Edwards, D.O. for increased sinus
drainage. She was diagnosed with sinusitis and bronchitis. (Tr. 598). On the same
day, plaintiff saw Dr. Acosta-Rodriguez for an unscheduled follow up appointment after
missing several visits. (Tr. 659-660). Plaintiff had no complaints of pain and reported
that she had discontinued her pain medications. A physical examination revealed
normal trochanteric bursa; mild lumbosacral fascia edema; negative straight leg raises;
normal heel walking, toe walking and squatting; normal flexion, extension, side
bending and rotation of the lumbosacral spine; and normal flank examination. Dr.
Acosta-Rodriguez encouraged plaintiff to do knee-to-chest exercises.
On February 10, 2009, plaintiff returned to Dr. Acosta-Rodriguez for a follow-up
appointment and complaints of joint pain. (Tr. 657-658). A physical examination
revealed that she was able to move all limbs spontaneously; had a normal gait pattern;
was negative for back edema; had low chronic lumbosacral fascia scarring and right
SI joint somatic dysfunction that was easily adjusted using simple distraction; negative
straight leg raises; and normal heel walking, toe walking, and squatting. A pain
injection was administered in plaintiff’s right SI joint soft tissue.
On March 3, 2009, plaintiff saw Dr. Edwards complaining of post-brain surgery
difficulties and trouble with her urinary incontinence. Dr. Edwards referred her to a
urologist and recommended counseling for her post-surgical trauma. (Tr. 597). On
March 10, 2009, plaintiff returned to Dr. Acosta-Rodriguez for a follow-up appointment.
(Tr. 655-656). Plaintiff complained of joint pain and buttocks pain. A physical
examination revealed a tender piriformis muscle on her right gluteal region; negative
straight leg raises; normal strength; fairly significant SI joint dysfunction; and no
edema. An injection was administered in three separate spots along the piriformus and
her SI joint was readjusted. Plaintiff received additional SI joint injections on March 27,
2009 and April 21, 2009. (Tr. 669-674).
On March 26, 2009, plaintiff saw Eric Vogt, M.D. at Urology Care, Inc. The
treatment notes listed plaintiff’s diagnosis as mixed urinary incontinence and stress
urinary incontinence. Plaintiff reported that she typically goes through 15 pads per
day. Dr. Vogt discussed treatment options with plaintiff, but did not specify in the
notes what those options included. (Tr. 615). On April 4, 2009, Dr. Vogt performed
a genitourinary physical examination on plaintiff. Dr. Vogt reported normal results with
no abnormalities. (Tr. 614).
On April 21, 2009, plaintiff was seen by Susan Jenner, MA, LPC for a therapy
screening and assessment. (Tr. 637, 644-653). Plaintiff was described to have severe
post traumatic stress disorder, in which she has flashbacks to her brain surgery; a fear
of dying; moderate anxiety; moderate depression; moderate panic; and mild anger.
(Tr. 645-646). She was given a Global Assessment of Functioning (GAF) score of 50.9
A GAF of 41-50 corresponds with “serious symptoms OR any serious
impairment in social, occupational, or school functioning.” American Psychiatric
Association, Diagnostic & Statistical Manual of Mental Disorders - Fourth Edition, Text
(Tr. 651). Plaintiff returned for three therapy sessions with Christopher Anderson, LPC,
LQM on April 22nd, April 27th, and May 13th. (Tr. 638-643). Her mood was
consistently described as euthymic.
On April 30, 2009, plaintiff saw Dr. Edwards with complaints of itching and
burning associated with urination. Plaintiff was diagnosed with a urinary tract infection.
Dr. Edwards noted that plaintiff also suffered from back pain, depression, and anxiety.
(Tr. 595-596). A letter, dated May 12, 2009, was written by Dr. Edwards for the
purpose of addressing plaintiff’s pending disability determination. (Tr. 508-509). Dr.
Edwards expressed his opinion that plaintiff was legitimately unable to hold a job since
September 2008 due to problems she encountered after her aneurysm surgery, chronic
back pain, chronic urinary incontinence, and psychological issues.
On June 9, 2009 plaintiff saw Mindy Kendrick, APRN-BC at the Ozarks
Community Hospital for a refills of Vicodin,10 Zestril,11 Hydrochlorothiazide,12 Lipitor,13
Oxybytynin,14 and Naprosyn.15 Plaintiff’s diagnosis included back pain, hypertension,
Revision 34 (4th ed. 2000).
Vicodin is a narcotic analgesic indicated for relief of moderate to moderately
severe pain. Dependence or tolerance may occur. See Phys. Desk. Ref. 530-31 (60th
Zestril is a brand name for lisinopril, an ACE-inhibitor, used to treat high blood
pressure and heart failure. http://www.nlm.nih.gov/medlineplus/druginfo/meds
/a692051.html (last visited on Apr. 15, 2014).
Hydrochlorothiazide is used to treat high blood pressure and fluid retention.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682571.html (last visited on Apr.
Lipitor is used for the treatment of high cholesterol. See Phys. Desk Ref.
2495-96 (60th ed. 2006).
Oxybutynin is used to treat overactive bladder (a condition in which the
bladder muscles contract uncontrollably and cause frequent urination, urgent need to
urinate, and inability to control urination. http://www.nlm.nih.gov/medlineplus/druginf
hyperlipidemia, and incontinence. (Tr. 588-589). On June 22, 2009, plaintiff went to
the emergency room at the Ozarks Community Hospital with complaints of left foot
pain after “stepping on door threshold.” (Tr. 709-712). X-ray results revealed an acute
displaced fracture and old second metatarsal head osteonecrosis with secondary MTP
joint osteoarthritis. (Tr. 713). Plaintiff returned to Ms. Kendrick on July 1, 2009. The
treatment notes are illegible. (Tr. 698).
On July 29, 2009, plaintiff saw her ophthalmologist, Dr. Hecox. Treatment notes
state that plaintiff’s filamentary keratitis reoccurred and that it was likely that it will
continue to reoccur. Dr. Hecox stated that the medications prescribed have not healed
her eye and that she will need to see a specialist for evaluation and other forms of
treatment. (Tr. 517). On August 7, 2009, plaintiff went to the emergency room at the
Ozarks Community Hospital with complaints of facial redness and swelling due to an
allergic reaction. (Tr. 701-708).
On August 11, 2009, Dr. Edwards completed a medical source statement
regarding plaintiff’s physical abilities. (Tr. 631-632). Dr. Edwards reported that plaintiff
ccould frequently lift and/or carry 5 pounds; occasionally lift and/or carry 10 pounds;
continuously stand and/or walk for less than 15 minutes; stand and/or walk for less
than 1 hour in an 8-hour day; sit continuously for 45 minutes at one time; sit for 1
hour in an 8-hour work day; push and/or pull with limitations; never climb, kneel, or
crawl; occasionally balance, stoop, crouch, and handle; frequently reach, finger, feel,
see, speak, and hear; avoid any exposure to heat, hazards, and heights; avoid
o/meds/a682141.html (last visited on Apr. 15, 2014).
Naprosyn is a nonsteroidal anti-inflammatory drug used for relief of the signs
and symptoms of tendinitis and pain management. See Phys. Desk Ref. 2769-70 (60th
moderate exposure to extreme cold, dust and fumes; and avoid concentrated exposure
to weather wetness, humidity, and vibration. Dr. Edwards wrote that in an 8-hour
workday, plaintiff would need to lie down or recline 3-4 times for 45 minutes each time
in order to alleviate pain symptoms.
On August 20, 2009, Dr. Edwards saw plaintiff for sores on her lips and chronic
cough. (Tr. 716). On the same day, Dr. Edwards completed a medical source
statement regarding plaintiff’s mental abilities. (Tr. 634-635). Dr. Edwards reported
that plaintiff was markedly limited16 in her ability to remember locations and work-like
procedures; to understand and remember detailed instructions; to carry out detailed
instructions; to maintain attention and concentration for extended periods; to perform
activities within a schedule; to maintain regular attendance, and be punctual within
customary tolerances; to complete a normal workday and workweek without
interruption from psychologically based symptoms; to perform at a consistent pace
without an unreasonable number and length of rest periods; and to travel in unfamiliar
places or use public transportation. Dr. Edwards reported that plaintiff was moderately
limited17 in her ability to work in coordination with or proximately to others without
being distracted by them. Dr. Edwards reported that plaintiff was not significantly
limited in her ability to understand, remember, and carry out very short and simple
instructions; to sustain an ordinary routine without special supervision; to make simple
work related decisions; to interact appropriately with the general public; to ask simple
The medical source statement defines the term “markedly limited” as “more
than moderate, but less extreme resulting in limitations that seriously interferes with
the ability to function independently.”
The term “moderately limited” is defined as “impairment levels are compatible
with some, but not all, useful functioning.”
questions or request assistance; to accept instructions and respond appropriately to
criticism from supervisors; to get along with coworkers or peers without distracting
them or exhibiting behavioral extremes; to maintain socially appropriate behavior and
to adhere to basic standards of neatness and cleanliness; to respond appropriately to
changes in the work setting; to be aware of normal hazards and take appropriate
precautions; and to set realistic goals or make plans independently of others.
On August 14, 2009, plaintiff saw Ms. Kendrick with the concern that one of her
medications was causing redness and swelling.
On August 31, 2009,
plaintiff underwent a chest CT that revealed normal results. (Tr. 715). On September
17, 2009 and October 12, 2009, plaintiff saw Ms. Kendrick for medication refills. (Tr.
On December 3, 2009, plaintiff went to the emergency room of Ozarks
Community Hospital for a rash on her legs, arms, and back. (Tr. 807-811). Plaintiff
was diagnosed with neurogenic dermatitis and was prescribed Lexapro18 and Atarax.19
On December 14, 2009, plaintiff saw Ms. Kendrick for refills of Vicodin and Lexapro.
(Tr. 827). On December 29, 2009, plaintiff returned to the emergency room with
complaints of neck and shoulder pain and spasms. (Tr. 801-805).
prescribed Valium20 for the pain. On January 10, 2010, plaintiff again went to the
Lexapro, or escitalopram, is used to treat depression and generalized anxiety
disorder. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a603005.html (last
visited Apr. 16, 2014).
Atarax is the brand name for hydroxyzine and is used to relieve the itching
caused by allergies and to control the nausea and vomiting caused by various
conditions, including motion sickness. It is also used for anxiety.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682866.html (last visited Apr.
Valium is the brand name for diazepam and is used to relieve anxiety, muscle
spasms, and seizures. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682047.
emergency room with complaints of back pain. (Tr. 792-800). An x-ray of the cervical
and thoracic spine revealed very mild thoracic spondylosis. (Tr. 800). Plaintiff was
On January 11, 2010, plaintiff saw Ms. Kendrick for pain between her shoulder
blades. She was prescribed Lidoderm patches.22 (Tr. 826). On January 19, 2010,
plaintiff saw Ms. Kendrick for cold symptoms and medication refills. Plaintiff’s diagnosis
included acute bronchitis, tobacco abuse, chronic neck and back pain, and stable
depression. (Tr. 825). On January 22, 2010, plaintiff saw Jay Baker, D.O. at a pain
clinic with complaints of pain shoulder blade pain radiating into her left arm. (Tr. 781782). The treatment records list plaintiff’s diagnosis as cervicalgia and cervical
radiculitis. Plaintiff underwent a cervical epidural steroid injection.
On January 25, 2010, plaintiff went to the Cherry Health Center with complaints
of mid back pain and left shoulder pain. (Tr. 725-726). An x-ray was ordered of
plaintiff’s cervical and lumbar spine, which revealed mild diffuse lumbar degenerative
disc disease and mild L5-S1 facet joint arthrosis. (Tr. 727). A second x-ray was
ordered of her cervical and thoracic spine, which revealed radiographically very mild
thoracic spondylosis. (Tr. 728). Plaintiff returned for a follow-up appointment on
February 15, 2010, with complaints of cervical pain and lower left extremity numbness
radiating to her index finger. Plaintiff was diagnosed with cervical spondylosis and
html (last visited Apr. 16, 2014).
Percocet is a combination of oxycodone and acetaminophen. Ocycodone is an
opioid analgesic indicated for relief of moderate to moderately severe pain. It can
produce drug dependence. See Phys. Desk. Ref. 1114 (60th ed. 2006).
Lidoderm is the brand name for lidocaine transdermal patch. It is a local
anesthetic that is used to relieve pain. http://www.nlm.nih.gov/medlineplus/druginfo/
meds/a603026.html (last visited Apr. 16, 2014).
congenital fusion at C3-4. (Tr. 729). Van Kinsey, D.O. administered a cervical facet
injection at left C-5 through C-7. (Tr. 730). Plaintiff received additional injections on
February 22, 2010 and March 1, 2010. Plaintiff reported that her pain decreased from
a 9 to a 2 and that she was sleeping more comfortably throughout the night. (Tr. 735738). On March 29, 2010, June 16, 2010, June 30, 2010, and July 6, 2010 plaintiff
received additional medial facet injections, and on August 17, 2010, she received a
medial branch block injection. (Tr. Tr. 842-851, 839-840).
On March 9, 2010, plaintiff saw Ms. Hendrick for a hydrocodone refill. (Tr. 824).
On April 26, 2010, plaintiff went to the emergency room at the Ozarks Community
Hospital with complaints of right toe redness, pain, and edema. (Tr. 785-788). An xray of the right foot revealed great toe distal phalanx exostoses, second metatarsal
head osteonecrosis, small posterior calcaneal spur, and no acute fracture. (Tr. 789).
She was discharged with a diagnosis of cellulitis. (Tr. 790).
On May 21, 2010, plaintiff saw Yung Hwang, M.D. for a disability determination
evaluation examination (Tr. 747-753). Dr. Hwang wrote that plaintiff was able to
understand and comprehend information quite well; had no vision, speaking or hearing
difficulties; walked very straight with no limping; and used no assistive device despite
complaining of low back pain. Dr. Hwang noted that plaintiff’s claim of a pinched nerve
was unsupported by the medical record. Dr. Hwang concluded that plaintiff was able
to do minor employment, but would be unable to tolerate “labor work.” (Tr. 751).
On June 2, 2010, a non-examining consultant completed a Physical Residual
Functional Capacity Assessment (PRCFA) with respect to plaintiff.23 (Tr. 122-128).
The form indicates that the PRFCA was completed by a Single Decisionmaker
(SDM). Missouri is one of 20 states in which nonmedical disability examiners are
authorized to make certain initial determinations without requiring a medical or
Based on a review of the medical records, the consultant determined that plaintiff had
the capacity to occasionally lift and/or carry 20 pounds; frequently lift and/or carry 10
pounds; stand and/or walk for a total of about 6 hours in an 8-hour workday; sit for
a total of about 6 hours in an 8-hour workday, with limitations on pushing and pulling
using the upper extremities. The consultant further determined that plaintiff can
frequently climb ramps and stairs; frequently balance; occasionally climb ladders,
ropes, and scaffolds; and occasionally stoop, kneel, crouch, and crawl.
restricted from concentrated exposure to vibrations and encountering hazards such as
machinery or heights.
On the same day, Stephen Scher, Ph.D. completed a psychiatric review
technique form. (Tr. 754-765). Dr. Scher concluded that plaintiff suffered from nonsevere affective disorders with mild difficulties in maintaining social functioning and
maintaining concentration, persistence or pace. Dr. Scher found no restriction of
activities of daily living or repeated episodes of decomposition. Dr. Scher wrote that
“there is no evidence of severe functional limitations due to a discrete mental
impairment alone. These impairments, either singularly or in combination, do not
significantly impact on the [plaintiff’s] ability to perform basic work-related activities.”
On August 20, 2010, plaintiff saw Ms. Kendrick for a refill on her Mentax24 and
Vicoden. (Tr. 821-822). On November 22, 2010, plaintiff saw Ms. Kendrick for refills
psychological consultant’s signature. See Office of the Inspector General, Audit Report
Single Decisionmaker Model – Authority to Make Certain Disability Determinations
without a Medical Consultant’s Signature (Aug. 2013).
Mentax is a cream indicated for the topical treatment of the dermatologic
infection, tinea (pityriasis) versicolor. http://dailymed.nlm.nig.gov/dailymed/lookup.
cfm?setid=167ecefd-4553-41b8-8160-81a48dbca076 (last visited Apr. 16, 2014).
of hydrocodone and Flexeril and requested a prescription for an Ambien.25 (Tr. 820).
On December 21, 2010, plaintiff saw Kenneth Sharlin, M.D. for a neurological
consultation with complaints of daytime sleepiness. (Tr. 813-815). Dr. Sharlin
described plaintiff’s condition as persistent disorder of initiating or maintaining
wakefulness. Plaintiff was advised to schedule a diagnostic polysomnogram. On
January 21, 2011, plaintiff saw Ms. Kendrick for Vicodin and Ambien refills. (Tr. 817).
On February 22, 2011, plaintiff saw J. Dasovich, M.D. at the Kitchen Clinic. The
treatment notes summarize plaintiff’s chronic issues as hypertension, hyperlipidemia,
urinary incontinence, pain, narcotic use, and degenerative disc disease. Dr. Dasovich
discontinued her Lipitor, Vesicare, Cozaar, and hydrocodone medications and began
her on Simvastatin,26 Oxybutynin,27 Lisinopril,28 Gabapentin.29 (Tr. 834-835). On April
13, 2011, plaintiff returned to the Kitchen Clinic with complaints of constipation and
continued low back pain. Plaintiff expressed an interest in quitting smoking. Plaintiff
was given a prescription for lidocaine patches to alleviate her back pain and a Nicotrol
Ambien is the brand name for zolpidem and is used to treat insomnia
(difficulty falling asleep or staying asleep). http://www.nlm.nih.gov/medlineplus/drug
info/meds/a693025.html (last visited Apr. 16, 2014).
Simvastatin is used together with diet, weight-loss, and exercise to reduce the
amount of fatty substances such as low density lipoprotein cholesterol and triglycerides
in the blood. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a692030.html (last
visited Apr. 17, 2014).
Oxybutynin is used to treat overactive bladder. http://www.nlm.nih.gov/
medlineplus/druginfo/meds/a682141.html (last visited Apr. 17, 2014).
Lisinopril is used alone or in combination with other medications to treat high
blood pressure. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a692051.html
(last visited Apr. 17, 2014).
Gabapentin is used to help control certain types of seizures in people who
have epilepsy. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a694007.html (last
visited Apr. 17, 2014).
inhaler to aid her with smoking cessation. (Tr. 833). On June 8, 2011, plaintiff
presented to the Kitchen Clinic with a bloody left eye. Plaintiff reported that sometimes
her right hip gives out and causes her to fall. Plaintiff was diagnosed with left eye
subconjunctival hemorrhage. The notes stated that plaintiff had no difficulty with gait
or arising from the exam table. (Tr. 831).
On July 25, 2011, plaintiff was examined by Charles Ash, M.D., who diagnosed
possible degenerative arthritis in the cervical spine, lumbar spine, and right hip. (Tr.
769-770). Based on plaintiff’s medical records and a physical examination, Dr. Ash
determined that plaintiff had the capacity to frequently lift or carry up to 10 pounds;
occasionally lift or carry 11 to 20 pounds; sit, stand, or walk for one hour without
interruption; sit for a total of 8 hours in an 8-hour work day; stand for a total of 6
hours in an 8-hour work day; walk for a total of 6 hours in an 8-hour work day;
frequently reach, handle, finger, feel, push, pull, or operate foot controls; occasionally
climb stairs, balance, stoop, kneel, crouch, or crawl; and occasionally tolerate
unprotected heights, moving mechanical parts, operating a motor vehicle,
humidity/wetness, dust, odors, fumes, or pulmonary irritants, extreme cold or heat,
and vibrations. (Tr. 771-776). Dr. Ash noted that plaintiff does not require the use
of a cane or walker to ambulate, is able to shop, travel without assistance, use public
transportation; climb a few steps at a reasonable pace; prepare a simple meal, care
for personal hygiene, and sort paper or files. (Tr. 772).
On August 31, 2011, plaintiff returned to the Kitchen Clinic for a prescription
refill. The majority of the treatment notes are illegible. (Tr. 854-857).
III. The ALJ’s Decision
In the decision issued on February 24, 2012, the ALJ made the following
Plaintiff meets the insured status requirements of the Social Security Act
through December 31, 2010.
Plaintiff has not engaged in substantial gainful activity since October 19,
2007, the alleged onset date.
Plaintiff has the following severe physical impairments: morbid obesity,
nicotine abuse, mild degenerative disc disease of the lumbar spine with
arthrosis and history of diagnosis of sacroiliitis, lumbago and sciatica,
diffuse degenerative disc disease of the cervical spine with congenital
cervical fusion, mild bilateral upper extremity cervicalgia, very mild
spondylosis of the thoracic spine, insomnia/persistent disorder of
wakefulness, stress urinary incontinence controlled with medication,
history of left 5th metatarsal fracture with residual pain, right knee
Baker’s cyst, hyperlipidemia controlled with medication, diabetes mellitus
II controlled with medication, history of headache, history of ruptured
aneurysm, status post clipping with no residual effects, hypertension
controlled with medication, depressive disorder, generalized anxiety
disorder and post-traumatic stress disorder.
Plaintiff does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Plaintiff has the residual functional capacity (RFC) to perform sedentary
work as defined in 20 CFR 404.1567(a) and 416.967(a) except that there
is no reaching above the head bilaterally. With regard to movements of
the neck, whether vertical or later flexion or extension, it is decreased
throughout the use of the neck by 10 degrees in all directions. There is
no pushing or pulling with the lower extremities bilaterally. Bending,
twisting and turning when standing is occasionally, when seated is
frequent. There is no crawling or kneeling for competitive purposes, but
the claimant can retrieve items and use those positions to do that.
Stooping and squatting is less than occasional, but can be performed.
Climbing stairs is occasional, no ropes, ladders or scaffolds. Gripping and
grasping wrist movements as well as handling, fingering and feeling, are
both frequent. There is no pushing or pulling of levers with the upper
extremities bilaterally. There is no use of air or vibrating tools or motor
vehicles. There is no work at unprotected heights. There is no work in
temperature extremes of cold, heat or humidity. There is no contact with
the public and contact with supervisors anc co-workers is occasional. In
addition, the claimant has a marked limitation in carrying our complex
Plaintiff is unable to perform any past relevant work.
Plaintiff was born on November 2, 1963 and was 43 years old, which is
defined as a younger individual age 18-49, on the alleged disability onset
Plaintiff has at least a high school education and is able to communicate
Plaintiff’s transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a framework
supports a finding that plaintiff is “not disabled,” whether or not plaintiff
has transferable job skills.
Considering plaintiff’s age, education, work experience, and RFC, there
are jobs that exist in significant numbers in the national economy that
plaintiff can perform.
Plaintiff has not been under a disability, as defined in the Social Security
Act, from October 19, 2007, through the date of this decision.
IV. Legal Standard
The district court must affirm the Commissioner’s decision “if the decision is not
based on legal error and if there is substantial evidence in the record as a whole to
support the conclusion that the claimant was not disabled.” Long v. Chater, 108 F.3d
185, 187 (8th Cir. 1997). “Substantial evidence is less than a preponderance, but
enough so that a reasonable mind might find it adequate to support the conclusion.”
Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002) (quoting Johnson v. Apfel, 240
F.3d 1145, 1147 (8th Cir. 2001)). If, after reviewing the record, the court finds it
possible to draw two inconsistent positions from the evidence and one of those
positions represents the Commissioner’s findings, the court must affirm the decision
of the Commissioner.
Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011)
(quotations and citation omitted).
To be entitled to disability benefits, a claimant must prove she is unable to
perform any substantial gainful activity due to a medically determinable physical or
mental impairment that would either result in death or which has lasted or could be
expected to last for at least twelve continuous months. 42 U.S.C. § 423(a)(1)(D),
(d)(1)(A); Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009). The Commissioner
has established a five-step process for determining whether a person is disabled. See
20 C.F.R. § 404.1520; Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009). “Each step
in the disability determination entails a separate analysis and legal standard.” Lacroix
v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006).
Steps one through three require the claimant to prove (1) she is not currently
engaged in substantial gainful activity, (2) she suffers from a severe impairment, and
(3) her disability meets or equals a listed impairment. Pate-Fires, 564 F.3d at 942. If
the claimant does not suffer from a listed impairment or its equivalent, the
Commissioner’s analysis proceeds to steps four and five. Id.
“Prior to step four, the ALJ must assess the claimant’s residual functioning
capacity (‘RFC’), which is the most a claimant can do despite her limitations.” Moore,
572 F.3d at 523 (citing 20 C.F.R. § 404.1545(a)(1)).
“RFC is an administrative
assessment of the extent to which an individual’s medically determinable
impairment(s), including any related symptoms, such as pain, may cause physical or
mental limitations or restrictions that may affect his or her capacity to do work-related
physical and mental activities.” Social Security Ruling (SSR) 96-8p, 1996 WL 374184,
*2. “[A] claimant’s RFC [is] based on all relevant evidence, including the medical
records, observations by treating physicians and others, and an individual’s own
description of his limitations.”
Moore, 572 F.3d at 523 (quotation and citation
In determining a claimant’s RFC, the ALJ must evaluate the claimant’s credibility.
Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Pearsall v. Massanari, 274 F.3d
1211, 1217 (8th Cir. 2002). This evaluation requires that the ALJ consider “(1) the
claimant’s daily activities; (2) the duration, intensity, and frequency of the pain; (3)
the precipitating and aggravating factors; (4) the dosage, effectiveness, and side
effects of medication; (5) any functional restrictions; (6) the claimant’s work history;
and (7) the absence of objective medical evidence to support the claimant’s
complaints.” Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011) (quotation and
citation omitted). “Although ‘an ALJ may not discount a claimant’s allegations of
disabling pain solely because the objective medical evidence does not fully support
them,’ the ALJ may find that these allegations are not credible ‘if there are
inconsistencies in the evidence as a whole.’” Id. (quoting Goff v. Barnhart, 421 F.3d
785, 792 (8th Cir. 2005)). After considering the seven factors, the ALJ must make
express credibility determinations and set forth the inconsistencies in the record which
caused the ALJ to reject the claimant’s complaints. Singh v. Apfel, 222 F.3d 448, 452
(8th Cir. 2000); Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998).
At step four, the ALJ determines whether claimant can return to her past
relevant work, “review[ing] [the claimant’s] [RFC] and the physical and mental
demands of the work [claimant has] done in the past.” 20 C.F.R. § 404.1520(e). The
burden at step four remains with the claimant to prove her RFC and establish that she
cannot return to her past relevant work. Moore, 572 F.3d at 523; accord Dukes v.
Barnhart, 436 F.3d 923, 928 (8th Cir. 2006); Vandenboom v. Barnhart, 421 F.3d 745,
750 (8th Cir. 2005).
If the ALJ holds at step four of the process that a claimant cannot return to past
relevant work, the burden shifts at step five to the Commissioner to establish that the
claimant maintains the RFC to perform a significant number of jobs within the national
economy. Banks v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001). See also 20 C.F.R.
If the claimant is prevented by her impairment from doing any other work, the
ALJ will find the claimant to be disabled.
Plaintiff contends that the ALJ erred by failing to resolve the conflict between the
vocational expert’s testimony and the Dictionary of Occupational Titles. Plaintiff further
argues that the ALJ’s decision denying benefits was not supported by substantial
evidence. [Doc. #17].
A. Vocational Expert Testimony
Plaintiff argues that the ALJ erred in relying on the vocational expert’s testimony
because it was in conflict with the Dictionary of Occupational Titles (DOT) and the ALJ
failed to give a reasonable explanation in his decision as to how he resolved this
The DOT addresses “occupations,” which are broad categories representing
numerous jobs. See Social Security Ruling (SSR) 00-4p, 2000 WL 1898704, at *2.
“‘DOT definitions are simply generic job descriptions that offer the approximate
maximum requirements for each position, rather than the range.’ The DOT itself
cautions that its descriptions may not coincide in every respect with the content of jobs
as performed in particular establishments or at certain localities. In other words, not
all of the jobs in every category have requirements identical to or as rigorous as those
listed in the DOT.” Wheeler v. Apfel, 224 F.3d 891, 897 (8th Cir. 2000) (quoting Hall
v. Chater, 109 F.3d 1255, 1259 (8th Cir. 1997)). Because the DOT only provides
maximum requirements, a vocational expert is permitted to consider other reliable
sources regarding available jobs in the national or local economy. See 20 C.F.R. §
404.1566. However, an ALJ must inquire about any apparent conflicts between the
DOT and a vocational expert’s testimony. See Social Security Ruling (SSR) 00-4p, at
*4. If there is a conflict, the ALJ may rely on the expert testimony as long as the
record contains persuasive evidence to support the deviation. Johnson v. Shalala, 60
F.3d 1428, 1435 (9th Cir. 1995).
In the instant case, the vocational expert testified that plaintiff had the
functional ability to work as a production assembler, an electronics assembler, or a
The vocational expert described these jobs as sedentary, unskilled
occupations. The ALJ asked whether this testimony was consistent with the DOT. The
vocational expert testified that it was not consistent with the DOT because the DOT
defines the production assembler and electronics assembler jobs as light work and the
hand packer job as medium work. The vocational expert justified her re-categorization
of the exertional levels by explaining that she relied on the Department of Labor’s
Unskilled Employment Quarterly Ledger, which defined the three jobs as sedentary
occupations. The vocational expert then testified that there were 750 jobs within the
state of Missouri for a production assembler, 1,400 jobs within the state of Missouri for
an electronics assembler, and 1,200 jobs within the state of Missouri for a hand packer.
Although the Unskilled Employment Quarterly Ledger may conflict with the DOT,
it is considered to be a reliable source for vocational experts to reference when
determining exertional levels or estimates of available jobs. See e.g. Cook v. Astrue,
2011 WL 3665334, *9 (E.D. Wash. Aug. 22, 2011); Koonce v. Apfel, 1999 WL 7864,
*5 (4th Cir. 1999); Rikard v. Astrue, 2008 WL 250580, *5 n. 1 (W.D. Mo. Jan. 28,
2008). However, although a vocational expert may rely on the Unskilled Employment
Quarterly Ledger, the vocational expert must provide a sufficient justification for any
conflict with the DOT. See Johnson, 60 F.3d at 1435. If the conflict is not resolved at
the hearing, the ALJ must clarify the discrepancy in his opinion. See SSR 00-4p.
For example, in Cook v. Astrue, 2011 WL 3665334, there was a conflict between
the vocational expert’s testimony and the DOT. The court found that the ALJ did not
err in relying on the testimony because the vocational expert explained at the hearing
that she relied on the Unskilled Employment Quarterly Ledger and a labor market
survey to determine that some portion of the jobs that the DOT defined as light were
actually performed in a seated position and, thus, were more appropriately classified
as sedentary. Id. at *9. The court found that this explanation was a sufficient
justification for the conflict.
In contrast to Cook v. Astrue, the vocational expert in this case did not provide
any explanation for why she placed more weight on the exertional levels from the
Unskilled Employment Quarterly Ledger than the exertional levels from the DOT and
the ALJ did not resolve this conflict in his opinion. See Tr. 29, 70-71. “To the extent
a conflict exists, the ALJ must elicit a reasonable explanation for such a conflict and
thereafter resolve it.” Allhouse v. Commissioner of Social Security, 2008 WL 4372646,
*10 (E.D. Mich. Sept. 19, 2008). No such explanation was elicited in this case. In light
of this unresolved conflict, substantial evidence on the record does not support the
ALJ’s reliance on the vocational expert’s testimony regarding the question of whether
plaintiff can perform jobs in the national economy. Thus, the Court finds that remand
B. Residual Functional Capacity
Plaintiff further argues that the ALJ’s decision was not supported by substantial
evidence because: (1) the ALJ failed to give proper weight to the August 11, 2009
medical source statements completed by Dr. Brian Edwards; and (2) the ALJ
improperly failed to consider her medication side effects.
In deciding whether a claimant is disabled, the ALJ considers medical opinions
along with “the rest of the relevant evidence” in the record. 20 C.F.R. § 404.1527(b).
The opinion of a treating source may be given controlling weight where it is wellsupported by clinical and laboratory diagnostic techniques and is not inconsistent with
the record as a whole. 20 C.F.R. § 404.1527(c)(2). When an ALJ discounts a treating
physician’s opinion, he must give good reasons for doing so.” Martise v. Astrue, 641
F.3d 909, 925 (8th Cir. 2011); 20 C.F.R. § 404.1527(d)(2). Furthermore, the ALJ
“need not adopt the opinion of a physician on the ultimate issue of a claimant’s ability
to engage in substantial gainful employment.” Qualls v. Apfel, 158 F.3d 425, 428 (8th
Cir. 1998) (internal quotations and citations omitted).
Dr. Edwards completed a two-page medical source statement regarding
plaintiff’s physical abilities. (Tr. 631-632). Dr. Edwards reported that plaintiff was able
to frequently lift and/or carry 5 pounds; occasionally lift and/or carry 10 pounds;
continuously stand and/or walk for less than 15 minutes; stand and/or walk for less
than 1 hour in an 8-hour day; sit continuously for 45 minutes at one time; sit for 1
hour in an 8-hour work day; push and/or pull with limitations; never climb, kneel, or
crawl; occasionally balance, stoop, crouch, and handle; and frequently reach, finger,
feel, see, speak, and hear. Dr. Edwards opined that plaintiff should avoid any exposure
to heat, hazards, and heights; avoid moderate exposure to extreme cold, dust and
fumes; and avoid concentrated exposure to weather wetness, humidity, and vibration.
Dr. Edwards wrote that in an 8-hour workday, plaintiff would need to lie down or
recline 3-4 times for 45 minutes each time in order to alleviate pain symptoms. Dr.
Edwards also completed an additional two-page medical source statement regarding
plaintiff’s mental abilities. (Tr. 634-635).
Dr. Edwards reported that plaintiff was
markedly and moderately limited in various mental capacities.
The ALJ gave no evidentiary weight to either of Dr. Edwards’ medical source
statements because: (1) Dr. Edwards’ contact with plaintiff was limited in duration; (2)
his opinions seemed to give undue weight to plaintiff’s subjective complaints; (3) he
did not cite to any specific medical examinations or tests to support his opinions; (4)
his limitations were not supported by contemporaneous office or progress notes; and
(5) there was no evidence that he had the expertise to form opinions regarding
plaintiff’s primarily orthopedic and mental conditions. [Doc. #10-3, at p. 26].
The Court finds that the ALJ gave good reasons for attributing no weight to the
medical observations of Dr. Edwards. As the ALJ noted, the medical record reflects
that Dr. Edwards’ contact with plaintiff was of a limited duration. See 20 C.F.R. §
404.1527(d) (ALJ may consider the length of the treatment relationship and the
frequency of treatment). Dr. Edwards saw plaintiff three times prior to completing his
medical source statements and these three visits involved medical issues unrelated to
the opinions provided in the medical source statements. (Tr. 595, 597-598). The first
visit was on January 29, 2009 for sinus congestion; the second visit was on March 3,
2009 for issues with urinary incontinence; and the third time was on April 30, 2009 for
complaints of itching and burning during urination. Dr. Edwards’ treatment notes did
not indicate any concern for plaintiff’s mental health or discuss any of plaintiff’s
physical limitations. In fact, his treatment notes are devoid of any evidence that he
personally performed a physical or mental examination on plaintiff. See Randolph v.
Barnhart, 386 F.3d 835, 840 (8th Cir. 2004) (ALJ did not err in refusing to give
treating-source weight to doctor who met with claimant three times).
Furthermore, Dr. Edwards’ opinions are conclusory and not based on sufficient
medical or diagnostic data.
The medical source statements contain eight sets of
checklists. Dr. Edwards did not cite to any medical evidence and provided no
elaboration or explanation for his answers. “The checklist format, generality, and
incompleteness of the assessments limit evidentiary value.” Holmstrom v. Massanari,
270 F.3d 715, 721 (8th Cir. 2001). “A treating physician’s opinion deserves no greater
respect than any other physician’s opinion when [it] consists of nothing more than
vague conclusory statements.” Piepgras v. Charter, 76 F.3d 233, 236 (8th Cir. 1966);
see also Leckenby v. Astrue, 487 F.3d 626, 632 (8th Cir. 2007); 20 C.F.R. §
404.1527(d)(3) (more weight will be given to an opinion when the physician provides
relevant evidence, such as medical signs, in support of his opinion). Thus, the Court
finds that the ALJ did not err in assessing the weight to be afforded to the opinion of
The plaintiff additionally argues that the ALJ erred by failing to properly consider
her medication side effects. Plaintiff does not identify which side effects, in particular,
the ALJ failed to discuss. However, after careful review of the ALJ’s decision, the Court
finds that the ALJ’s conclusions are supported by substantial evidence. The ALJ’s
decision thoroughly summarizes plaintiff’s medical history, including the results of
plaintiff’s objective diagnostic tests and the medical opinions of Dr. Ash, Dr. Edwards,
Dr. Paff, Dr. Yung, and Dr. Scher. The ALJ weighed the opinions of plaintiff’s treating
physicians and consultative examiners and appropriately assessed plaintiff’s credibility.
The ALJ also considered the fact that plaintiff did not require the assistance of an
ambulation device, that her impairments were stable, and that she had received fairly
conservative treatment. Thus, the ALJ’s opinion is supported by substantial evidence
on the record as a whole.
For the reasons discussed above, the Court finds that the Commissioner properly
determined plaintiff’s residual functional capacity. However, the Court also finds that
that the Commissioner failed to address the conflict between the vocational expert
testimony and the DOT and, thus, improperly relied on the testimony.
IT IS HEREBY ORDERED that the decision of the Commissioner is reversed
and this matter is remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g)
for further proceedings.
A separate Judgment in accordance with this Memorandum and Order will be
entered this same date.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 25th day of August, 2014.
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