Henry v. Colvin
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the final decision of the Commissioner is affirmed, and plaintiffs Complaint is dismissed with prejudice.A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by Magistrate Judge Nannette A. Baker on 5/20/14. (CLA)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
No. 4:13-CV-637 NAB
MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) for judicial review of the
Commissioner’s final decision denying Marcia Henry’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). Because the
Commissioner’s final decision is supported by substantial evidence on the record
as a whole, it is affirmed.
I. Procedural History
On March 2, 2011, the Social Security Administration denied plaintiff
Marcia Henry’s February 9, 2011, application for disability insurance benefits
(DIB) in which she claimed she became disabled on August 25, 2010, because of
right leg pain, blocked artery, low back pain with bulging disc, and depression.
(Tr. 56, 58-62, 102-03, 131.) Upon plaintiff’s request, a hearing was held before
an administrative law judge (ALJ) on February 29, 2012, at which plaintiff and a
vocational expert testified. (Tr. 25-49.) On April 24, 2012, the ALJ issued a
decision denying plaintiff’s claim for benefits finding that plaintiff could perform
the full range of light work, which resulted in a finding of “not disabled” as
directed by the Medical-Vocational Guidelines. (Tr. 12-21.) On February 16,
2013, the Appeals Council denied plaintiff’s request for review of the ALJ's
decision. (Tr. 1-5.) 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 claims that the ALJ’s
decision is not supported by substantial evidence on the record as a whole.
Plaintiff specifically argues that the ALJ’s determination of her residual functional
capacity (RFC) lacks support in the medical evidence and fails to take into
consideration all of plaintiff’s impairments, and particularly her mental
impairment. Plaintiff also contends that the ALJ erred in finding her subjective
complaints not to be credible. Plaintiff requests that the final decision be reversed
and that the matter be remanded for further consideration. For the reasons that
follow, the ALJ did not err in her determination.1
The ALJ found plaintiff’s migraine headaches and carpal tunnel syndrome not to be severe
II. Relevant Testimonial Evidence Before the ALJ
At the hearing on February 29, 2012, 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. Plaintiff is married and lives with her husband and
twelve-year-old daughter. (Tr. 30-31, 40.)
Plaintiff’s Work History Report shows that plaintiff worked as a cashier and
in food service at Target from October 1983 to January 2005. Since August 2005,
plaintiff has continued to work at Target stocking merchandise. (Tr. 156.)
Plaintiff testified that her current work at Target includes pulling wooden pallets
full of boxed merchandise from the stock room to the sales floor, unloading the
merchandise and stocking the shelves, and then breaking down the boxes. Plaintiff
testified that she lifts between five and fifty pounds with this work. Plaintiff
testified that she currently works fifteen hours a week. (Tr. 31-34.)
Plaintiff testified that she used to work full time at her job but switched to
part-time in August 2010 because she could not walk or stand continuously for a
full eight-hour day. Plaintiff testified that she has had low back pain for ten years
impairments. (Tr. 17-18.) Plaintiff does not challenge the ALJ’s findings or analysis relating to
these impairments. Accordingly, 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 evidence relating to the issues raised by plaintiff on this appeal.
and currently experiences such pain within half an hour of starting her work shift,
with her back beginning to give out within the following hour. Plaintiff testified
that the pain radiates to the top of her legs. Plaintiff also testified to having right
leg pain that progresses to severe cramping and that nothing relieves the pain. (Tr.
33-34, 42.) Plaintiff testified that her leg pain causes her to call in sick to work
two or three times a month because she is unable to stand. (Tr. 44.)
Plaintiff testified that she also experiences depression for which she takes
Prozac. Plaintiff testified that she did not experience depression before the onset
of her pain. Plaintiff testified that she does not want to get out of bed or clean her
house. Plaintiff testified that she also has difficulty with memory and
concentration but has no difficulty getting along with people. (Tr. 37-39.)
Plaintiff testified that she takes medication for cholesterol, muscle spasms,
and pain but that the medication does not help her conditions. Plaintiff testified
that she tries not to take her pain medication or muscle relaxant every day unless
she has to because the medication makes her very sleepy. Plaintiff testified that
taking Prozac helps the most. (Tr. 35.)
As to her exertional abilities, plaintiff testified that she can walk for half an
hour before her pain starts, and she can sit for twenty to thirty minutes before
experiencing pain in her back and stiffness in her legs. Plaintiff testified that she
experiences pain in her low back and right leg when she stands for thirty minutes.
Plaintiff testified that she can lift twenty-five pounds but experiences back pain
when doing so. (Tr. 36-37, 41-42.)
As to her daily activities, plaintiff testified that she works from 4:00 a.m. to
8:00 a.m. three days a week. Plaintiff testified that she then comes home from
work, takes her pain medication if necessary, and then sleeps for three or four
hours if her leg pain does not keep her awake. Plaintiff testified that she then sits
and reads. Plaintiff testified that she has no other hobbies. Plaintiff testified that
on days she does not work, she gets up, makes breakfast for her daughter, and
takes her to school. Plaintiff testified that she then comes home and lets the dog
out. Plaintiff testified that she will perform household chores depending on her
mood, but that she makes sure her daughter has clean clothes and something to eat.
Plaintiff testified that her husband helps when she is unable to do the chores. (Tr.
39-41.) Plaintiff testified that she sometimes goes to the grocery store with her
husband and will sit in the car or on a bench if she is unable to continue shopping.
Plaintiff testified that she can care for her personal needs. (Tr. 42-43.) Plaintiff
testified that she has a driver’s license and is able to drive. (Tr. 30.) Plaintiff
testified that she tries to be social and visits with her oldest daughter and eighteenmonth-old grandson. (Tr. 45.)
III. Relevant Medical Records Before the ALJ
On September 21, 2009, plaintiff visited Dr. Daniel Yang at Barnes Jewish
Hospital with complaints of right calf pain with exertion. Plaintiff reported the
pain to worsen with walking and with climbing ladders at work, and to be relieved
with rest. Plaintiff was instructed to take aspirin and to quit smoking, and
laboratory testing was ordered. (Tr. 200-01.)
Plaintiff returned to Dr. Yang on October 12, 2009, with continued
complaints of experiencing right calf pain after working all day and after walking
for one hour. Plaintiff denied any back pain. Plaintiff also reported being
depressed because of her husband’s unemployment. Plaintiff reported crying
daily, an inability to focus, and an inability to sleep. Physical examination was
unremarkable. Plaintiff had full strength in her lower extremities and no pain to
palpation of the right calf. Dr. Yang suspected lumbar spine stenosis given
plaintiff’s symptoms and ordered diagnostic testing. Ultram (Tramadol) was
prescribed for pain. Bupropion was started for depression. (Tr. 193-95.)
Plaintiff visited Dr. Felicia Brown at South County Health Center on April
21, 2010, and complained of leg pain. Plaintiff reported not having any back pain
or muscle weakness. Plaintiff’s current medications included Flexeril (Cyclobenzaprine) for muscle cramps, Hydrocodone (Vicodin) for pain, and Prozac
(Fluoxetine). Physical examination showed tenderness about the lateral aspect of
the right thigh. Mental status examination was normal. Plaintiff was diagnosed
with myalgia/myositis. On April 29, Dr. Brown noted a CT scan of the lumbar
spine to show spinal stenosis. A CT scan of the right leg showed no abnormalities.
Plaintiff was referred to neurology for further evaluation. (Tr. 371-74.)
Plaintiff returned to Dr. Brown on May 5, 2010, with new complaints of
numbness in her left leg. Plaintiff continued to report numbness in her right leg as
before. Plaintiff reported her pain to be at a level four on a scale of one to ten. Dr.
Brown noted plaintiff to have a slow and cautious gait. Mental status examination
was unremarkable. Plaintiff was instructed to call neurology to schedule an
appointment. (Tr. 369-70.)
Plaintiff visited St. Louis ConnectCare on July 26, 2010,2 for evaluation and
treatment of constant aching and burning pain in the right leg involving the calf
and ankle. Plaintiff reported having the condition for two years and that her pain
was currently at a level six. Plaintiff also reported pain and stiffness in her lower
back that had progressed within the previous month. It was noted that diagnostic
testing showed multilevel degenerative disc disease with a bulging disc at L4-5 and
bilateral nerve root compression.3 It was noted that plaintiff was taking Vicodin
and Flexeril with some relief. It was noted that plaintiff had an upcoming
appointment with a neurosurgeon in November 2010. Plaintiff also reported
experiencing anxiety. Plaintiff reported no confusion, memory lapses, or
The record is unclear as to the provider at this appointment. While the treatment note lists
Glenn Lopate as the provider, the note appears to be electronically signed by Eli Shuter.
The diagnostic test that showed these results does not appear to be a part of the administrative
disorientation. Physical examination showed full range of motion about the
lumbar spine but with spasm of the right paraspinal muscles. Range of motion,
muscle tone, and strength were noted to be normal throughout plaintiff’s lower
extremities. Heel/toe walking was normal. Jerk reflexes of the ankles were
decreased. Plaintiff was diagnosed with low back pain and bulging lumbar disc at
L4-5, and it was opined that plaintiff’s leg and back pain was due to such disc
herniation. Treatment options were discussed, including physical therapy and back
exercises. The provider noted that he had requested Target Stores to reassign
plaintiff to “duties that limit lifting and carrying heavy weights.” Plaintiff was
instructed to continue with Vicodin for pain and Flexeril for spasm. Plaintiff was
referred for chiropractic treatment, including a trial of traction therapy for
treatment of bulging disc. (Tr. 383-86.)
Plaintiff visited Dr. Robert Andel, III, with Innovative Chiropractic at St.
Louis ConnectCare on August 17, 2010, for her complaints of severe leg pain.
Plaintiff reported that the pain starts within one to two hours of her work day, and
that it does not stop. Plaintiff reported that standing and walking worsen the pain.
Physical examination showed increased pain with active range of motion with
extension about the right low back. Seated Kemp’s sign was positive on the right.
Palpation along the L4-5 resulted in increased low back pain without referral. A
treatment plan was put in place, and plaintiff was instructed to follow at-home
instructions “and be on light duty [at] work.” (Tr. 377-81.)
On September 8, 2010, South County Health Center informed plaintiff that
she needed a new referral to continue chiropractic care. Plaintiff responded that her
treating chiropractor had left St. Louis ConnectCare for private practice and that
she preferred to continue care with him in private practice but could not afford it.
Plaintiff returned to South County Health Center on October 13, 2010, with
minor complaints of experiencing low back pain on a daily basis. Plaintiff
reported that taking Hydrocodone and Cyclobenzaprine was effective but that she
experienced fatigue with her medication. Plaintiff reported taking over-the-counter
Advil if she needed to be alert. Plaintiff reported her energy level to be good and
that she was sleeping well. Plaintiff reported her pain to have moderate impact on
her recreational activities, and severe impact on her working activities in that she
had been off of work since August. Her mental status examination was
unremarkable. The physical examination showed plaintiff to have a stiff gait and
to move cautiously. Plaintiff was diagnosed with myalgia/myositis,
hyperlipidemia, and stenosis. Laboratory testing was ordered. (Tr. 363-64.)
In a note dated October 27, 2010, Family Nurse Practitioner Karen T.
Nichols from South County Health Center reported that she informed Target of a
chiropractic note that limited plaintiff to the performance of “light duty.” When
informed by Target that there was no light duty work available, FNP Nichols
extended plaintiff’s medical leave of absence until November 10, 2010, the date
plaintiff was scheduled to be reevaluated by a neurologist. (Tr. 361.)
Plaintiff visited Dr. Yang on November 1, 2010, and reported that she
experienced right calf pain and low back pain. It was noted that plaintiff had been
seeing a chiropractor and had an upcoming appointment with a neurologist. Dr.
Yang noted undated CT scans of the lumbar spine and right leg to show L5-S1
broad based central disc herniation with at least moderate to severe spinal stenosis;
L4-5 moderate broad based disc bulging associated with central disc herniation and
mild to moderate spinal stenosis; and bilateral intervertebral foraminal
encroachment at L4-5. No abnormalities of the right leg were noted.4 Dr. Yang
noted plaintiff’s medications to include aspirin, acetaminophen, Hydrocodone,
Fluoxetine, and Cyclobenzaprine. Plaintiff reported her depression to be much
better with medication, and Dr. Yang noted the condition to be well controlled.
Physical examination showed plaintiff to have full strength in the lower extremities
and no pain with palpation to the right calf. Plaintiff was diagnosed with right calf
Dr. Yang also noted an MRI of the lumbar spine dated December 2009 to show degenerative
disc disease greatest at L4-S1 with mild bilateral neural foraminal narrowing at L4-L5 and a
bulging disc touching the L5 nerve root bilaterally. A central disc protrusion abutting the left S1
nerve root was also noted. (See Tr. 189.) While Dr. Yang summarized these MRI findings in his
November 2010 treatment note, the administrative record does not contain the MRI report itself.
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claudication possibly caused by spinal stenosis and disc protrusion. Gabapentin
was prescribed. (Tr. 189-91.)
On December 13, 2010, plaintiff visited Dr. Bob Geng at Barnes Jewish
Hospital to obtain a release-from-work letter due to leg pain and an inability to
stand and work. Dr. Geng noted a CT angiogram of the right leg to show
occlusion of the right posterior tibial artery. Plaintiff denied having back pain. Dr.
Geng noted plaintiff’s depression to be stable and controlled with medication. Dr.
Geng referred plaintiff to a vascular surgeon for the occlusion condition and
provided plaintiff a release-from-work letter. (Tr. 182-83.)
Plaintiff visited Dr. John A. Curci on January 11, 2011, upon referral from
Dr. Yang and complained of constant right leg pain exacerbated with walking and
prolonged standing. Physical examination was unremarkable. Dr. Curci noted
arterial studies not to show any cause for the condition, and opined that the
diminutive posterior tibial artery was congenital in nature and not contributing to
any vascular changes. Dr. Curci opined that plaintiff’s impairment was not
vascular in nature. (Tr. 179-80.)
On January 21, 2011, plaintiff visited Dr. Ricardo Rao at Missouri Baptist
Medical Center for a second opinion regarding vascular insufficiency in the right
leg. Upon physical examination and review of diagnostic studies, Dr. Rao
concluded that the pain in plaintiff’s leg had nothing to do with arterial
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insufficiency. Dr. Rao determined the etiology of plaintiff’s pain to be unknown.
Plaintiff returned to Dr. Yang on January 26, 2011, and reported a worsening
of her leg pain in that it was now shooting from her calf up into her thigh. Plaintiff
reported the pain to worsen after exertion. Plaintiff denied any back pain. Plaintiff
reported the Gabapentin did not relieve her pain and that the medication caused
sedation. Dr. Yang instructed plaintiff to increase her dosage of Gabapentin, and
plaintiff’s prescriptions for Vicodin and Flexeril were refilled for pain. Dr. Yang
noted plaintiff’s depression to be well controlled on Fluoxetine. Plaintiff was
referred to an orthopedist. Plaintiff was also referred to social work for disability.
Plaintiff visited Dr. Asha Kodwani at South County Health Center on
February 7, 2011, with continued complaints of right leg pain. It was noted that all
diagnostic testing yielded negative results. Plaintiff’s medications were noted to
include Flexeril, Hydrocodone, and Prozac. Mental status examination was
unremarkable. Physical examination showed mild tenderness about the right leg
muscle. Plaintiff’s gait and coordination were normal. (Tr. 359-60.)
Plaintiff returned to Dr. Yang on February 23, 2011, with continued
complaints of right leg pain. Plaintiff’s depression continued to be well controlled
with medication. Plaintiff was referred to physical therapy at the medical school.
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On March 2, 2011, James Spence, Ph.D., a psychological consultant with
disability determinations, completed a Psychiatric Review Technique Form
(PRTF) in which he opined that plaintiff did not have a severe mental impairment,
finding that plaintiff had no limitations in her activities of daily living; maintaining
social functioning; and maintaining concentration, persistence, or pace; and did not
have any repeat episodes of decompensation of extended duration. To support this
conclusion, Dr. Spence noted record evidence to show that plaintiff had been
regularly taking medication for depression since October 2009, that she had not
undergone counseling or therapy for the condition nor required psychiatric
hospitalization, and that plaintiff’s physician determined the condition to be well
controlled with medication. Dr. Spence also noted plaintiff to have worked with
the impairment through August 2010 and that self-reports of activities and
cognitive abilities supported a finding that the impairment was not severe. (Tr.
Plaintiff returned to Dr. Yang on March 9, 2011, and reported that she
discontinued Gabapentin because it provided no relief and caused sedation.
Plaintiff had no change in her complaints of pain in her right leg and reported the
pain to be at a level seven. Plaintiff reported having no back pain. Plaintiff’s
depression was noted to be well controlled on medication. Dr. Yang made a
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second referral to an orthopedist and instructed plaintiff to return to work as
tolerated. (Tr. 256-59.)
On May 23, 2011, plaintiff reported to Dr. Yang that she was tired of the
continued pain in her right leg and that she was also now experiencing pain in both
legs with exertion. Plaintiff reported her pain to be at a level nine. Plaintiff
reported the pain to start soon after beginning her work shift. Plaintiff reported
that she did not like taking Vicodin because it made her groggy. Dr. Yang noted
an orthopedist to opine that testing for exertional compartment syndrome would
not be worthwhile, and it was noted that plaintiff could not pay the out-of-pocket
expenses for the testing. Physical examination showed full strength of the lower
extremities with no pain to palpation of the calves bilaterally. Plaintiff was
referred to the pain clinic for possible injection therapy to the lumbar spine.
Plaintiff also reported that she felt depressed, was crying a lot, was tired all of the
time, could not concentrate, and was binge eating. Plaintiff’s dosage of Prozac
was increased from 20mg to 40mg. (Tr. 243-45.)
Plaintiff returned to Dr. Yang on July 25, 2011, and complained of low back
pain with pain shooting down the right leg. Plaintiff reported the pain to be at a
level six. Plaintiff reported that she would not take Gabapentin because of its
sedation. Dr. Yang noted that plaintiff continued to work at Target. Physical
examination was unchanged from the previous visit. Dr. Yang prescribed Voltaren
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cream and made a second referral to the pain clinic. Dr. Yang also noted plaintiff
to continue to be very depressed. Plaintiff did not want to change from Prozac to
Cymbalta. Dr. Yang increased plaintiff’s dosage of Prozac to 60mg. (Tr. 227-29.)
On October 4, 2011, plaintiff reported to Dr. Yang that Voltaren cream was
somewhat helping her pain. Plaintiff’s current medications were noted to include
aspirin, Fluoxetine, Hydrocodone, Voltaren transdermal gel, and Fluoxetine.
Physical examination was unchanged. Plaintiff had not yet been contacted by the
pain clinic. Noting that plaintiff continued to be very depressed, Dr. Yang
increased plaintiff’s dosage of Prozac to 80mg. (Tr. 222-24.)
IV. The ALJ's Decision
The ALJ found that plaintiff met the insured status requirements of the
Social Security Act through December 31, 2015. The ALJ found plaintiff not to
have engaged in substantial gainful activity since August 25, 2010, the alleged
onset date of disability. The ALJ found that plaintiff’s degenerative disc disease
was a severe impairment, but that plaintiff did not have an impairment or
combination of impairments that met or medically equaled an impairment listed in
20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ found plaintiff to have the
RFC to perform the full range of light work.5 The ALJ determined plaintiff not to
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds. . . . [A] job is in this category when it requires a good deal
of walking or standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b).
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have any past relevant work. Considering plaintiff’s age, education, work
experience, and RFC, the ALJ determined the Medical-Vocational Guidelines to
direct a finding of “not disabled.” The ALJ thus found plaintiff not to be under a
disability from August 25, 2010, through the date of the decision. (Tr. 17-21.)
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." 42 U.S.C. § 423(d)(2)(A).
To determine whether a claimant is disabled, the Commissioner engages in a
five-step evaluation process. See 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482
U.S. 137, 140-42 (1987). The Commissioner begins by deciding whether the
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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
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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 and consider:
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
non-exertional activities and impairments.
Any corroboration by third parties of the plaintiff's
The testimony of vocational experts when required which is
based upon a proper hypothetical question which sets forth the
Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir.
1992) (internal citations omitted). The Court must also consider any evidence
which 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
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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).
Severity of Mental Impairment
At Step 2 of the sequential analysis, the ALJ determined, inter alia, that
plaintiff’s depression was not a severe impairment. In making this determination,
the ALJ accorded great weight to Dr. Spence’s opinion that plaintiff’s mental
impairment was not severe, and further noted that plaintiff’s “depression is well
controlled on medication, according to her records. She has never been seen by a
psychiatrist or treated by a psychotherapist.” (Tr. 17.) (Internal citations to record
omitted.) Plaintiff claims that the ALJ erred in this determination inasmuch as she
failed to undergo the analysis required by 20 C.F.R. § 404.1520a when
determining the severity of mental impairments and, further, failed to consider the
evidence of record that showed an exacerbation of symptoms. In response, the
Commissioner argues that the ALJ’s failure to undergo the § 404.1520a analysis
was, at most, harmless inasmuch as substantial evidence on the record as a whole
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supports the finding that the impairment is not severe. For the following reasons,
the Commissioner’s argument is well taken.
In addition to the five-step sequential process by which the Commissioner is
to generally determine disability, the Social Security Regulations provide
additional procedures for the Commissioner to undergo in evaluating mental
impairments. 20 C.F.R. § 404.1520a. First, the Commissioner must evaluate the
claimant’s pertinent symptoms, signs and laboratory findings to determine whether
the claimant has a medically determinable impairment; and specify such
symptoms, signs and laboratory findings substantiating the presence of such
impairment. 20 C.F.R. § 404.1520a(b)(1). The Commissioner then must
determine the severity of the impairment. To do so, the Commissioner is required
to rate the degree of functional loss the claimant suffers as a result of the
impairment in the areas of daily living; social functioning; concentration,
persistence, or pace; and episodes of decompensation. 20 C.F.R. §
When we rate the degree of limitation in the first three functional
areas (activities of daily living; social functioning; and concentration,
persistence, or pace), we will use the following five-point scale:
None, mild, moderate, marked, and extreme. When we rate the
degree of limitation in the fourth functional area (episodes of
decompensation), we will use the following four-point scale: None,
one or two, three, four or more. . . .
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If we rate the degree of your limitation in the first three functional
areas as “none” or “mild” and “none” in the fourth area, we will
generally conclude that your impairment(s) is not severe . . . .
20 C.F.R. § 404.1520a(c)(4)-(d)(1). At the initial and reconsideration steps of the
administrative process, the Commissioner must complete a standard document
outlining the steps of this procedure. At the hearing and Appeals Council levels,
application of the procedure must be documented in the written decision. 20
C.F.R. § 404.1520a(e).
The Commissioner concedes in her Brief that the ALJ did not document in
her written decision her ratings of the degree of plaintiff’s functional limitations as
required by § 404.1520a(c), (e). In finding plaintiff’s mental impairment not to be
severe, however, the ALJ accorded great weight to Dr. Spence’s same finding,
which was based upon his completion of a PRTF that included his ratings under §
404.1520a(c) that plaintiff experienced no limitations in the broad areas of
functioning and no episodes of decompensation. Because the ALJ accorded great
weight to Dr. Spence’s findings based upon these ratings, it cannot be said that the
ALJ did not consider the degree to which plaintiff is able to function in the four
broad areas required to be considered. Cf. Buckner v. Astrue, 646 F.3d 549, 55657 (8th Cir. 2011) (State agency consultant’s PRTF findings that mental
impairment resulted in no more than mild limitations in broad areas of functioning
under § 404.1520a provided substantial evidence to support ALJ’s finding that
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claimant’s mental impairment was not severe). By according great weight to Dr.
Spence’s opinion, which was based upon the § 404.1520a(c) factors, the ALJ’s
failure herself to delineate these factors in her written decision amounted to
nothing more than harmless error. Cf. Prochaska v. Barnhart, 454 F.3d 731, 73637 (7th Cir. 2006) (harmless error where ALJ did not expressly address impairment
(obesity) in written decision but adopted limitations suggested by doctors who
were aware of impairment), cited approvingly in Partee v. Astrue, 638 F.3d 860,
863 (8th Cir. 2011). See Cuthrell v. Astrue, 702 F.3d 1114, 1118 (8th Cir. 2013)
(ALJ’s failure to rate severity of mental impairment under § 404.1520a may be
subject to harmless error analysis). This is especially true here where the ALJ
bolstered her reliance on Dr. Spence’s findings by noting the evidence to show that
plaintiff’s impairment was well-controlled with medication and that plaintiff had
never been treated by a mental health professional. Cf. Kirby v. Astrue, 500 F.3d
705, 709 (8th Cir. 2007) (lack of any formal treatment by psychiatrist,
psychologist, or other mental health professional supported ALJ’s finding that
claimant’s mental impairment was not severe); Johnson v. Apfel, 210 F.3d 870,
874-75 (8th Cir. 2000) (anxiety not severe where evidence showed symptoms
responded to medication); Nguyen v. Chater, 75 F.3d 429, 431 (8th Cir. 1996)
(medical impairment not severe where evidence showed improvement with
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Because substantial evidence on the record as a whole, including Dr.
Spence’s Mental RFC Assessment and PTRF, supports the ALJ’s determination
that plaintiff’s mental impairment is not severe, her failure to delineate the §
404.1524a(c) factors in her written decision amounts to nothing more than
harmless error in the circumstances of this case and an arguable deficiency in
opinion-writing technique. Buckner, 646 F.3d at 560 (arguable deficiency in
opinion-writing technique had no bearing on outcome of case and does not require
To the extent plaintiff argues that the ALJ nevertheless failed to consider the
exacerbation of her depressive symptoms beginning in May 2011, which was after
Dr. Spence’s opinion, a review of the evidence shows such increase in symptoms
to be relatively minor. While plaintiff reported an increase in symptoms in May,
July, and October 2011, plaintiff continued to see only Dr. Yang and did not seek
treatment from a mental health professional. In addition, Dr. Yang’s treatment
during this period consisted only of an adjustment to plaintiff’s medication and did
not result in any referral for mental health treatment, despite Dr. Yang’s
continuous referrals to other specialists for treatment relating to other impairments.
Finally, during this period, Dr. Yang did not increase the frequency with which he
monitored plaintiff’s condition and indeed continued to instruct plaintiff to return
for follow up every two to three months. Consideration of all of this evidence
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shows that plaintiff’s symptoms of depression, while having increased during this
five-month period, did not so alter her functioning that her mental impairment
could no longer be considered non-severe. Cf. Hacker v. Barnhart, 459 F.3d 934,
939 (8th Cir. 2006) (ALJ did not err in relying on experts’ opinions that were given
prior to increase in claimant’s depressive symptoms where such increased
symptoms were relatively minor).
Accordingly, to the extent the ALJ erred in the manner by which she reached
her conclusion at Step 2 of the sequential analysis that plaintiff’s mental
impairment was not severe, such error was harmless. Because a review of the
record shows the ALJ’s Step 2 determination as to plaintiff’s mental impairment to
be supported by substantial evidence on the record a whole, such determination
must be affirmed.
Plaintiff claims that no medical evidence supports the ALJ’s RFC finding
that she can perform the full range of light work. Plaintiff contends that the ALJ
should have ordered a consultative examination to assist her in determining what
work-related activities plaintiff is able to perform.
A claimant’s RFC is the most she is able to do despite her limitations. 20
C.F.R. § 404.1545; Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir. 2004);
Dunahoo v. Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001). The ALJ bears the
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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). As such, when
determining a claimant’s RFC, the ALJ must necessarily evaluate the credibility of
the claimant’s subjective complaints. Wagner v. Astrue, 499 F.3d 842, 851 (8th
Cir. 2007); Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005). In addition,
because a claimant’s RFC is a medical question, “the ALJ should obtain medical
evidence that addresses the claimant’s ability to function in the workplace.”
Hutsell, 259 F.3d at 712. The burden to prove the claimant's RFC, however, rests
with the claimant and not the Commissioner. Pearsall, 274 F.3d at 1217.
In determining a claimant’s credibility, the ALJ must consider all evidence
relating to her complaints, including the claimant’s prior work record and third
party observations as to the claimant's daily activities; the duration, frequency and
intensity of the symptoms; any precipitating and aggravating factors; the dosage,
effectiveness and side effects of medication; and any functional restrictions.
Halverson v. Astrue, 600 F.3d 922, 931 (8th Cir. 2010); Polaski v. Heckler, 739
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F.2d 1320, 1322 (8th Cir. 1984) (subsequent history omitted). While an ALJ need
not explicitly discuss each Polaski factor in her decision, she nevertheless must
acknowledge and consider these factors before discounting a claimant’s subjective
complaints. Wildman v. Astrue, 596 F.3d 959, 968 (8th Cir. 2010).
When, on judicial review, a plaintiff contends that the ALJ failed to properly
consider her subjective complaints, “the duty of the court is to ascertain whether
the ALJ considered all of the evidence relevant to the plaintiff's complaints . . .
under the Polaski standards and whether the evidence so contradicts the plaintiff's
subjective complaints that the ALJ could discount his or her testimony as not
credible.” Masterson, 363 F.3d at 738-39. It is not enough that the record merely
contain inconsistencies. Instead, the ALJ must specifically demonstrate in her
decision that she considered all of the evidence. Id. at 738; see also Cline v.
Sullivan, 939 F.2d 560, 565 (8th Cir. 1991). Where an ALJ explicitly considers
the Polaski factors but then discredits a claimant’s complaints for good reason, the
decision should be upheld. Hogan v. Apfel, 239 F.3d 958, 962 (8th Cir. 2001).
The determination of a claimant’s credibility is for the Commissioner, and not the
Court, to make. Tellez, 403 F.3d at 957; Pearsall, 274 F.3d at 1218.
Plaintiff contends that the ALJ erred in her credibility determination by
improperly focusing on and/or mischaracterizing her part-time work, her treatment
modalities, and the extent to which she was treated by specialists. For the
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following reasons, the ALJ did not err in her credibility determination.
A review of the ALJ’s decision shows her to have set out numerous
inconsistencies in the record upon which she found plaintiff’s subjective
complaints not to be entirely credible. First, the ALJ noted that plaintiff continued
to work upon being diagnosed in 2009 with degenerative disc disease and was
currently working part-time in a position requiring pushing and pulling of wooden
pallets, stocking shelves, and lifting up to fifty pounds. See Naber v. Shalala, 22
F.3d 186, 188-89 (8th Cir. 1994) (intention to work and actual performance of
medium-exertional work during relevant period supported ALJ’s determination
that claimant could perform light work despite complaints of pain); see also Goff v.
Barnhart, 421 F.3d 785, 792 (8th Cir. 2005) (“Working generally demonstrates an
ability to perform a substantial gainful activity.”). While plaintiff cites Cline v.
Sullivan, 939 F.3d 560 (8th Cir. 1991), to argue that she should not be penalized
for working part-time to pay for healthcare, the part-time work performed here by
plaintiff, unlike in Cline, cannot be considered “largely passive” or deliberately
restricted “by the good graces of her employer[.]” See Cline, 939 F.3d at 556.
Indeed, when advised that plaintiff could engage in only light work duties, Target
reported that there were no light duties available. Plaintiff nevertheless returned to
work in her position. The ALJ also noted that plaintiff’s only treatment for her
alleged disabling pain was medication, and that plaintiff avoided taking such
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medication so she could stay alert. Taking pain medication only as needed “could
create doubt in a reasonable adjudicator’s mind with regard to [a claimant’s]
testimony about the extent of her pain.” Curran-Kicksey v. Barnhart, 315 F.3d
964, 969 (8th Cir. 2003). The ALJ also noted that plaintiff never participated in
physical therapy, never used a TENS unit, never underwent injection therapy, and
discontinued chiropractic care entirely when her chiropractor left for private
practice. See Black v. Apfel, 143 F.3d 383, 386-87 (8th Cir. 1998) (conservative
course of treatment inconsistent with complaints of debilitating pain). While
plaintiff correctly contends that the referral process affected efforts to receive
steroid injections, the record nevertheless shows that plaintiff continued to work
without such injections. In addition, plaintiff argues that contrary to the ALJ’s
statement that she had not been evaluated by a specialist, she had in fact been
evaluated by a neurologist, vascular surgeon, and orthopedist. A review of the
record, however, shows it to include treatment notes only from vascular specialists
who noted plaintiff’s impairment not to be caused by vascular insufficiency.
Although the record contains referrals to other specialists, there are no notes or
treatment records therefrom.6 Finally, the ALJ noted that none of plaintiff’s
treating physicians limited her work duties in any way and that the chiropractic
Plaintiff contends her appointment with St. Louis ConnectCare in July 2010 was with a
neurologist. There is no indication of such specialty in the treatment note, however. (See Tr.
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note that plaintiff engage in only light duties and non-heavy lifting was
inconsistent with plaintiff’s claim that her pain bars her from employment
entirely.7 See Raney v. Barnhart, 396 F.3d 1007, 1011 (8th Cir. 2005) (ALJ
emphasized that no doctor opined that plaintiff was disabled); Melton v. Apfel, 181
F.3d 939, 941 (8th Cir. 1999) (claimant’s complaints undermined by lack of
significant restrictions placed on him by his doctors). These reasons to discredit
plaintiff’s subjective complaints of pain are supported by substantial evidence on
the record as a whole.
Accordingly, in a manner consistent with and as required by Polaski, the
ALJ considered plaintiff’s subjective complaints on the basis of the entire record
and set out numerous inconsistencies that detracted from her credibility. Because
the ALJ’s determination not to credit plaintiff’s subjective complaints is supported
by good reasons and substantial evidence, this Court must defer to the ALJ’s
credibility determination. Renstrom v. Astrue, 680 F.3d 1057, 1065 (8th Cir.
2012); Goff, 421 F.3d at 793; Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir.
The ALJ found plaintiff to have the RFC to perform the full range of light
The ALJ attributed one of these notes to a chiropractor instead of to the examining physician
who actually imposed the limitations. A reading of the ALJ’s decision in toto shows her
misidentification of the author of one of these notes not to have affected the outcome of the case.
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work. Plaintiff contends that no medical evidence supports this finding and that,
when considering plaintiff’s severe impairment in combination with her non-severe
mental impairment, the evidence shows plaintiff unable to perform such work.
Plaintiff also contends that, given the lack of opinion evidence in this cause, the
ALJ should have ordered a consultative examination to assist in the RFC
As an initial matter, the undersigned notes that the ALJ properly found
plaintiff’s depression not to be a severe impairment, see discussion supra at
Section V.A, and based this determination on Dr. Spence’s opinion that plaintiff
experienced no limitations in activities of daily living; social functioning; and
concentration, persistence, or pace. Where a claimant suffers no limitations in
these broad areas of functioning, it follows that an ALJ does not err in failing to
include any mental limitations in the RFC assessment. Cf. Buckner v. Astrue, 646
F.3d 549, 561 (8th Cir. 2011) (ALJ may omit mental limitations from hypothetical
question where such limitations are not severe) (citing Jackson v. Apfel, 162 F.3d
533, 538 (8th Cir. 1998)).
With respect to plaintiff’s claim that no medical evidence supports the ALJ’s
RFC determination, the Court must look to the record and determine whether
medical evidence exists of plaintiff’s RFC at the time of the hearing. Anderson v.
Shalala, 51 F.3d 777, 779 (8th Cir. 1995). So long as the evidence of record
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provides a sufficient basis for the ALJ’s decision, the ALJ is permitted to issue a
decision without obtaining additional medical evidence. Id. The absence of
opinion evidence does not undermine an ALJ’s RFC determination where other
medical evidence in the record supports the finding. See Cox v. Astrue, 495 F.3d
614, 619-20 (8th Cir. 2007); see also Zeiler v. Barnhart, 384 F.3d 932, 936 (8th
Cir. 2004) (lack of opinion evidence not fatal to RFC determination where ALJ
properly considered available medical and testimonial evidence). Because
sufficient medical evidence shows plaintiff to have had the RFC to perform light
work at the time of the hearing, the ALJ did not err in her RFC determination nor
in her failure to order a consultative examination.
The medical evidence of record shows plaintiff to have consistently had
unremarkable physical examinations despite her complaints of debilitating pain.
Such examinations repeatedly showed no weakness in the lower extremities, no
neurological deficits, and no pain. Plaintiff had full range of motion about the
lumbar spine in July 2010. While plaintiff exhibited some pain with range of
motion in August 2010, the chiropractic examination of that date resulted only in a
limitation to light duty at work. E.g., Dykes v. Apfel, 223 F.3d 865, 866-67 (8th
Cir. 2000) (per curiam) (treating physician’s release of claimant to light duty work
constitutes some medical evidence of RFC). No other range of motion deficits are
noted in the record. Indeed, the record shows plaintiff’s treating physician to
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consistently be aware of plaintiff’s work duties at Target, but he never imposed
work restrictions or any other limitations. In addition, while plaintiff complained
of minor back pain in October and November 2010, she specifically denied any
back pain thereafter. Such objective evaluations of plaintiff’s physical condition,
when coupled with the ALJ’s proper discrediting of plaintiff’s subjective
complaints, supports the ALJ’s decision. Anderson, 51 F.3d at 780. Although
plaintiff argues that the ALJ should have ordered a consultative examination to
address her functional limitations, the ALJ’s duty to develop the record does not
require her to disprove every possible impairment. McCoy v. Astrue, 648 F.3d
605, 612 (8th Cir. 2011).
The ALJ properly established plaintiff’s RFC based upon all the record
evidence in this cause, including medical and testimonial evidence. Because the
record contains some medical evidence that supports the RFC and substantial
evidence on the record as a whole supports the determination, the ALJ did not err.
For the reasons set out above on the claims raised by plaintiff on this appeal,
the ALJ’s determination that plaintiff was not disabled through the date of her
decision is supported by substantial evidence on the record as a whole, and
plaintiff’s claims of error are denied.
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IT IS HEREBY ORDERED that the final decision of the Commissioner is
affirmed, and plaintiff’s Complaint is dismissed with prejudice.
A separate Judgment in accordance with this Memorandum and Order is
entered this same date.
Dated this 20th day of May, 2014.
/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
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