Dennison v. SSA
MEMORANDUM OPINION..Substantial evidence in the record as a whole supports the decision of the ALJ finding Plaintiff not disabled, because the evidence of record does not support the presence of a disabling impairment. Accordingly, Judgment will be entered separately in favor of defendant in accordance with this Memorandum.. Signed by Magistrate Judge Abbie Crites-Leoni on 9/22/14. (MRS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Case No. 4:13CV707 ACL
This is an action under 42 U.S.C. ' 405(g) for judicial review of defendant=s final decision
denying the application of Kiersten Dennison for Disability Insurance Benefits under Title II of the
Social Security Act. This case has been assigned to the undersigned United States Magistrate
Judge pursuant to the Civil Justice Reform Act and is being heard by consent of the parties. See
28 U.S.C. ' 636(c). Plaintiff filed a Brief in support of the Complaint. [Doc. 15] Defendant
filed a Brief in Support of the Answer. [Doc. 20]
On September 13, 2010, Plaintiff filed an application for Disability Insurance Benefits,
claiming that she became unable to work due to her disabling condition on June 30, 2010. (Tr.
111-12.) This claim was denied initially and, following an administrative hearing, Plaintiff=s
claim was denied in a written opinion by an Administrative Law Judge (ALJ), dated February
22, 2012. (Tr. 60-65, 8-20.) Plaintiff then filed a request for review of the ALJ=s decision with
the Appeals Council of the Social Security Administration (SSA), which was denied on February
28, 2013. (Tr. 7, 1-6.) Thus, the decision of the ALJ stands as the final decision of the
Commissioner. See 20 C.F.R. '' 404.981, 416.1481.
Evidence Before the ALJ
Plaintiff=s administrative hearing was held on December 12, 2011. (Tr. 27.) Plaintiff
was present and was represented by counsel. Also present was vocational expert Brenda Young.
Plaintiff’s attorney stated that Plaintiff has been diagnosed with major depression and
generalized anxiety disorder, and experiences a lot of pain in the coccyx1 area. (Tr. 30.)
Plaintiff’s attorney argued that Plaintiff is unable to work due to a combination of her emotional
condition (major depression and general anxiety disorder) and her pain from coccydynia. Id.
Plaintiff testified that she was forty-three years of age; five-feet, five inches tall; and
weighed 180 pounds. (Tr. 31.)
Plaintiff stated that she was married, and had five biological children, one stepson, and one
grandson she was raising. Id. Plaintiff testified that her children were aged three to twenty-one,
and four of the children lived with her at the time of the hearing. Id. Plaintiff stated that her
husband worked as a manager of a business. (Tr. 32.)
Plaintiff testified that she had a driver’s license, and that she drove to medical
appointments and the grocery store. Id. Plaintiff stated that she drove approximately once a
week, however, she tries to avoid driving due to lower back pain. Id. Plaintiff stated that her
daughter drove her to the hearing. Id.
Plaintiff testified that she obtained her GED. (Tr. 33.) Plaintiff stated that she has not
taken any college courses or received any vocational training. (Tr. 33.) She has not worked at
The coccyx, or tailbone, is the small bone at the end of the vertebral column. Stedman=s
Medical Dictionary, 403 (28th Ed. 2006).
all since June 30, 2010. Id.
Plaintiff stated that she received a workers’ compensation settlement in April of 2010. Id.
Plaintiff testified that she fell at work and injured her knee. (Tr. 34.)
Plaintiff stated that she had health insurance through her husband’s employer. (Tr. 35.)
Prior work included plaintiff’s office administrative duties and warehouse work at A.C.
Systems. Id. At times, she lifted as much as seventy pounds as part of her job responsibilities.
(Tr. 35-36.) She left that position, because she was unable to work due to her coccydynia.2 (Tr.
36.) Plaintiff also performed office work at Jiffy Lube; she quit that position when she married
her husband. (Tr. 36.) From 2001 to 2002, plaintiff worked as a care-taker for her disabled aunt.
Plaintiff also worked as a bus driver for First Student; she loaded students in wheelchairs onto the
bus and performed inspections of the bus. (Tr. 37) Plaintiff quit the bus driver position when her
son was diagnosed with leukemia. Id.
After injuring her knee in the work accident, plaintiff participated in physical therapy.
(Tr. 38.) Use of an exercise bike was part of the therapy. Id. Plaintiff started experiencing pain
in her low spine, or coccyx area, after using the exercise bike. Id. Plaintiff indicated she has
learned to adjust her life around the pain she experiences. (Tr. 39.) Plaintiff stated that she
avoids stairs, sitting for long periods, and standing for long periods, due to her pain. Id.
Plaintiff has seen pain specialists who recommended injections. Id. She did not undergo
the injections, because she has “an extreme phobia of medication” since she suffered an allergic
reaction to medication as a teenager. Id.
Plaintiff initially took Percocet3 for her tailbone pain, because her doctors convinced her it
Pain in the coccygeal region. See Stedman’s at 403.
Percocet is indicated for the relief of moderate to moderately severe pain. Physician=s Desk
was safe. Id. She started taking Vicodin4 instead, because the Percocet upset her stomach. (Tr.
40.) She takes Vicodin three times a day—she says it “takes the edge off” her pain and allows her
to “function a little better daily.” Id.
Plaintiff is able to take care of her three-year-old child, do housework, and shop for
groceries when she takes pain medication. Id. Plaintiff needs someone with her to shop for
groceries; they help carry things and are there due to her balance problems. Id.
Plaintiff testified that she started taking Ativan5 for anxiety after her son was diagnosed
with leukemia. (Tr. 41.) She has had anxiety attacks all her life, but they increased when her son
became ill. Id. Plaintiff’s pain management physician referred her to Dr. Sherri Bassi due to her
medication phobia and plaintiff sees Dr. Bassi approximately twice a month. (Tr. 42) Plaintiff
started seeing Dr. Datta, a psychiatrist, five months prior to the hearing. (Tr. 41) Dr. Datta
started plaintiff back on Ativan. Id. Plaintiff had been struggling to leave her house or do
anything due to anxiety. Id.
Plaintiff stated she does not feel comfortable leaving the house because of her depression
and anxiety. (Tr. 42.) Plaintiff has crying spells “all the time,” because she feels like a burden to
her family. Id. She is unable to go to the movies, or sit at the kitchen table with her family at
dinner, because she experiences back pain when sitting for long periods. (Tr. 43.) She stated
that does not attend functions at her kids’ school unless she can stand during the events. Id.
Plaintiff fears she will experience an anxiety attack while visiting friends or relatives. Id.
Plaintiff testified that an anxiety attack feels like a heart attack, specifically, she feels
Reference (PDR), 1127 (63rd Ed. 2009).
Vicodin is indicated for the relief of moderate to moderately severe pain. PDR at 529.
Ativan is indicated for the treatment of anxiety. See WebMD, http://www.webmd.com/drugs
(last visited September 4, 2014).
scared, her heart beats fast, and she becomes hot and dizzy. Id. She experiences anxiety attacks
three to four times a week, and they last fifteen to twenty minutes. Id. Plaintiff is really tired
after experiencing an attack, and usually rests the remainder of the day. (Tr. 44.)
Plaintiff testified that Dr. Bassi referred her to a psychiatrist, because her anxiety attacks
were becoming more severe. Id. The psychiatrist increased her Ativan and suggested that she
take Cymbalta,6 because it would help with her anxiety, depression, and fibromyalgia.7 Id.
Plaintiff stated that she cannot take Cymbalta, because she is afraid she will have a bad reaction to
Plaintiff indicated that she experiences occasional problems with concentration and
memory when her pain is severe. Id. Her sleep varies in that she has periods during which she
sleeps well, and then other periods when she only sleeps two to three hours a night. (Tr. 45.)
Plaintiff stated that she has good days and bad days. Id. She has a daily goal to always
“at least fix dinner.” Id. On a good day, plaintiff is able to do laundry and sweep the floors. Id.
She has good days about half of the time. Id.
The ALJ re-examined Plaintiff, who testified that she is able to sit about ten minutes before
she experiences severe pain. (Tr. 46.) She is able to stand for about ten minutes before she has to
sit down due to pain. Id. Plaintiff explained that she experiences lower back pain due to the
coccydynia and “aches all the time” due to fibromyalgia. Id.
The ALJ next questioned the vocational expert (VE) , Ms. Young, who classified
Plaintiff’s past work as follows: secretarial and office work (light, semi-skilled); school bus
Cymbalta is indicated for the treatment of major depressive disorder and generalized anxiety
disorder. See PDR at 1801.
A common syndrome of chronic widespread soft-tissue pain accompanied by weakness, fatigue,
and sleep disturbances; the cause is unknown. Stedman’s at 725.
driver (medium, semi-skilled); and healthcare aide (heavy, unskilled). (Tr. 47-48.)
The ALJ asked the VE to assume a hypothetical claimant with Plaintiff’s background and
the following limitations: light work; unable to climb ladders, ropes, or scaffolds; unable to
operate foot controls; occasional climbing of ramps and stairs; occasional stooping, kneeling,
crouching, and crawling; avoid all operational control of moving machinery, working at
unprotected heights, use of any hazardous machinery; avoid concentrated exposure to extreme
vibration; limited to simple, routine, repetitive tasks; and low stress job, with only occasional
decision-making, occasional changes in the work setting, and occasional interaction with the
public. (Tr. 48.) The VE testified that the individual would be unable to perform any of
Plaintiff’s past work. The VE stated that the individual could perform other light, unskilled work,
such as: cafeteria counter/salad bar attendant (400,000 positions nationally, 4,000 locally); or
semi-skilled positions such as file clerk (186,000 positions nationally, 2,000 locally); and small
product assembly (7000,000 positions nationally, 7,000 locally). (Tr. 48-49.) The VE testified
that employers at the positions cited would tolerate no more than one unexcused absence per
month. (Tr. 49.)
The ALJ next asked the VE to assume the same limitations as the first hypothetical with the
additional limitation of a sit/stand option once every hour. Id. The VE testified that only the file
clerk position would remain. (Tr. 50.)
The ALJ next asked the VE to assume an individual who was limited to sedentary work,
with a sit/stand option once every hour while remaining on task, along with the other limitations
set forth in the first hypothetical. Id. The VE testified that the individual could perform a
portion of the small assembly jobs (300,000 positions nationally, 3,000 locally). Id.
Finally, the ALJ asked the VE to assume the same limitations set forth in the last
hypothetical, but the individual requires a sit/stand option once every thirty minutes while
remaining on task. (Tr. 50-51.) The VE testified that this limitation would eliminate all jobs.
Plaintiff’s attorney asked the VE to assume the following limitations: unable to complete
a normal workday and work week without interruptions from psychologically based symptoms,
perform at a consistent pace without an unreasonable number and length of rest periods, or deal
with normal work stress. Id. The VE testified that such an individual would be unable to engage
in competitive employment. Id.
Relevant Medical Records
Plaintiff presented to the emergency department at SSM Depaul Health Center on April 26,
2010, with complaints of left knee pain after falling on a floor mat at work. (Tr. 179.) No
swelling or crepitus was noted on examination. Id. Plaintiff was diagnosed with contusion of
the left knee, and was prescribed crutches. (Tr. 181.)
Plaintiff presented to the emergency department at SSM Depaul Health Center on July 13,
2010, with complaints of low back pain. (Tr. 197-98.) Plaintiff underwent x-rays, which
revealed slight scoliosis, but no acute fracture, subluxation, or dislocation. (Tr. 198.)
Plaintiff returned to the emergency department on July 23, 2010, at which time she
complained of pelvic pain, rectal pain, urinary incontinence, coccydynia, and fatigue. (Tr. 209.)
She underwent an MRI of the pelvis, which revealed previous pelvic surgery, but no fracture, bone
marrow edema, or lesion. (Tr. 210.) An MRI of the lumbar spine was unremarkable. (Tr. 216.)
Plaintiff presented to Terry J. Weis, D.O., at Northland MidAmerica Orthopedics on July
27, 2010, with complaints of tailbone, hip, and low back pain. (Tr. 223.) Dr. Weis diagnosed
Plaintiff with coccydynia and prescribed Medrol Dosepak.8 (Tr. 225.) On August 2, 2010,
Plaintiff reported “fairly good relief” from her symptoms with medication, and that she continued
to have “mild coccydynia.” Id. On August 16, 2010, Dr. Weis noted that Plaintiff had continued
coccydynia, with no neurologic or tendon deficits, and that Plaintiff was ambulating “quite well.”
(Tr. 226.) Dr. Weis released Plaintiff for unlimited activity. Id. On September 13, 2010,
Plaintiff continued to report pain in her coccyx, with no relief in her symptoms. (Tr. 227.)
Plaintiff presented to Bernard C. Randolph, Jr., M.D. on September 14, 2010, for an
evaluation of her tailbone pain. (Tr. 229-30.) Plaintiff reported experiencing fairly severe
tailbone pain since June, which she attributed to riding an exercise bike for an extended period of
time. (Tr. 229.) Plaintiff also reported a “tailbone problem” as a child, which gradually
resolved. Id. Plaintiff indicated that her pain is associated with prolonged standing or walking.
Id. Upon examination, Plaintiff was in no acute distress, her mood and affect were normal, she
was able to ambulate with normal gait pattern, and she was observed to have significant discomfort
when she was sitting. Id. Examination of the lumbar spine revealed significant tenderness to
palpation in the sacral area and coccyx; mild tenderness over the buttock or gluteal muscle groups
and soft tissues; somewhat limited lumbar motion on extension and flexion; negative straight leg
raising bilaterally; intact and symmetric reflexes; and full leg strength. (Tr. 230.) Dr. Randolph
diagnosed Plaintiff with coccydynia and mild low back pain. Id. He stated that symptoms in the
tail bone area do not appear to be referred from the lumbar spine, and that there is no clear cause
for her coccygeal symptoms. Id. He stated that Plaintiff’s condition is, therefore, “best
characterized as idiopathic.” Id. Dr. Randolph recommended conservative management, and
Medrol is a steroid indicated for the treatment of arthritis. See WebMD,
http://www.webmd.com/drugs (last visited September 4, 2014).
prescribed Lidoderm9 patches and Relefen.10 Id. He encouraged Plaintiff to “walk and to stay
active in order to prevent deconditioning.” Id.
Plaintiff saw Dr. Randolph for follow-up on October 15, 2010, at which time she reported
that the Lidoderm patches did not decrease the symptoms at her coccyx, but the symptoms in her
low back and upper gluteal areas were decreased with use of the patches. (Tr. 247.) Upon
examination, Plaintiff walked normal and was in no acute distress; Plaintiff had some pain on
palpation over the tip of the coccyx; lumbar motion was full; straight leg raising was negative; no
spasms were noted in the lumbar area; minimal tenderness was noted in the buttock bilaterally;
strength in the lower extremities was normal; and reflexes were symmetric. Id. Dr. Randolph’s
impression was persistent coccygeal pain. Id. He recommended that she continue the Lidoderm
patches, and referred her to Dr. Suthar for a consultation and possible injections. Id.
Plaintiff presented to Manish Suthar, M.D., on October 27, 2010, at which time she
complained of aching pain across her lower back going down both her hips, stabbing pain in her
left buttocks, and burning in the bottom of both feet. (Tr. 252.) Plaintiff also reported numbness
and tingling in her arms and hands; numbness in her legs and feet; problems with bladder control;
trouble with bowels; and a history of depression and anxiety. Id. Upon examination, Plaintiff
was not in severe immediate pain or distress, but she was clearly more comfortable standing rather
than sitting; she had a somewhat anxious personality; mild tenderness was noted over the posterior
superior iliac spine; tenderness was noted directly over the sacral region and extending distally
Lidoderm is indicated for relief of pain associated with post-herpetic neuralgia, with its active
ingredient being lidocaine. See PDR at 1114-1115.
Relefen is a non-steroidal, anti-inflammatory drug indicated for the treatment of pain, swelling,
and joint stiffness from arthritis. See WebMD, http://www.webmd.com/drugs (last visited
September 4, 2014).
into the coccygeal region; neurologic examination was normal; sensory examination was normal;
and internal and external rotation reproduced some pain in the buttock region. (Tr. 253.) Dr.
Suthar’s impression was: symptoms most compatible with coccydynia; degenerative disc disease
at L4-5 and L5-S1; and anxiety and depression disorder. Id. Dr. Suthar prescribed Vicodin, and
recommended a single coccygeal injection “to extinguish the inflammation and stabilize the pain.”
Robert Cottone, Ph.D., a state agency psychologist, completed a Psychiatric Review
Technique on December 20, 2010, in which he expressed the opinion that Plaintiff had no
medically determinable impairment. (Tr. 234.)
Plaintiff saw Dr. Suthar on January 10, 2011, at which time she reported that she struggled
with severe anxiety and depression. (Tr. 248.) Plaintiff reported that it was her anxiety that
prohibits her from seeking out additional treatment and wanting to take medications. Id.
Plaintiff believed her anxiety is an effect from a very strong breathing side effect from sulfa drugs.
Id. Plaintiff reported pain in her wrist, hands, ankles and knees that started developing six weeks
prior. Id. Dr. Suthar’s impression was: symptoms most compatible with coccydynia;
degenerative disc disease at L4-5 and L5-S1; severe anxiety and depression disorder; and
generalized arthritic multijoint attack now six weeks in duration. Id. Dr. Suthar recommended
that Plaintiff see Dr. Sherri Bassi for her anxiety and depression; prescribed Medrol Dosepak for
her symptoms of arthritis; and continued the Vicodin. Id. He indicated that, if Plaintiff can get
resolution of her anxiety, a diagnostic as well as therapeutic single coccygeal injection would be
the next recommendation. Dr. Suthar noted that Plaintiff’s anxiety was severe enough that it
prohibited Plaintiff from seeking and continuing medical care and treatment. Id.
Plaintiff saw Sherri Bassi, Ph.D., on February 7, 2011. (Tr. 298-99.) Upon examination,
Plaintiff was cooperative, her affect was labile, her mood was depressed, and her speech was
normal. Id. Dr. Bassi diagnosed Plaintiff with major depression and generalized anxiety
disorder, with a GAF score11 of 50.12 (Tr. 299.) Plaintiff continued to see Dr. Bassi in the year
2011 for psychotherapy on April 5; May 3, 15, and 17; June 21; July 12 and 26; September 16;
October 7 and 25; and November 8. (Tr. 290-98.)
Plaintiff saw Dr. Suthar for follow-up on March 9, 2011, at which time Plaintiff reported
some improvement. (Tr. 249.) Dr. Suthar recommended a diagnostic block if Plaintiff’s anxiety
got under control. Id.
Plaintiff saw Dr. Datta13 at Psych Care Consultants four times between April and
November, 2011. (Tr. 305-08.) Dr. Datta diagnosed Plaintiff with generalized anxiety disorder,
depressive disorder NOS, panic attacks, and rule out PTSD. Id. He prescribed Ativan and
Cymbalta. Id. On October 19, 2011, Plaintiff reported that the Ativan was helping. (Tr. 307.)
On October 27, 2011, Plaintiff reported that she had not tried the Cymbalta yet, because she feared
she would die if she took the medication. (Tr. 306.)
Plaintiff presented to SLU Care Division of Rheumatology on June 7, 2011, with
complaints of joint pain, muscle pan, fatigue, insomnia, and depression. (Tr. 276.) Plaintiff was
diagnosed with fibromyalgia and coccydynia. Id.
The Global Assessment of Functioning Scale (GAF) is a psychological assessment tool wherein
an examiner is to “[c]onsider psychological, social, and occupational functioning on a hypothetical
continuum of mental health-illness” which does “not include impairment in functioning due to
physical (or environmental) limitations.” Diagnostic and Statistical Manual of Mental Disorders
(DSM-IV), 32 (4th Ed. 1994).
A GAF score of 41 to 50 indicates “serious symptoms” or “any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to keep a job).” DSM-IV at 32.
The record does not specify Dr. Datta’s first name or his credentials. At the hearing, Plaintiff’s
counsel referred to this provider as Plaintiff’s “treating psychiatrist,” and counsel’s March 26,
2012 letter indicated that the doctor was male. (Tr. 29-30; 178).
Plaintiff saw Dr. Suthar for follow-up on June 16, 2011, at which time she still struggled
with the thought of undergoing any injections. (Tr. 250.) Dr. Suthar suggested medications to
treat Plaintiff’s fibromyalgia, but Plaintiff reported that she knew she would not take the
medications. Id. Dr. Suthar stated that it was difficult to help Plaintiff when she cannot follow
through with the recommendations he provided. Id. Dr. Suthar continued the Vicodin and
recommended a trial of a TENS14 unit. Id.
Dr. Bassi completed a Mental Residual Functional Capacity Questionnaire on October 20,
2011. (Tr. 300-04.) Dr. Bassi listed Plaintiff’s diagnoses as: major depression, and
generalized anxiety, with a current GAF and highest GAF in the past year of 55.15 (Tr. 300.) Dr.
Bassi stated that Plaintiff had a “fair” response to ten sessions of psychotherapy. Id. Dr. Bassi
described her clinical findings as follows: oriented times three, emotionally labile, and no
psychotic symptoms. Id. The following signs and symptoms were noted: decreased energy,
feelings of guilt or worthlessness, generalized persistent anxiety, mood disturbance, difficulty
thinking or concentrating, persistent disturbance of mood or affect, persistent irrational fear of a
specific object or situation which results in a compelling desire to avoid the dreaded object or
situation, easy distractibility, and autonomic hyperactivity. (Tr. 301.) Dr. Bassi expressed the
opinion that Plaintiff was unable to meet competitive standards in her ability to complete a normal
work day and work week without interruptions from psychologically based symptoms, ability to
perform at a consistent pace without an unreasonable number and length of rest periods, and her
Transcutaneous electrical nerve stimulation (“TENS”) is a method of reducing pain by passage
of an electric current. Stedman’s at 1838.
A GAF score of 51-60 denotes “[m]oderate symptoms (e.g., flat affect and circumstantial
speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or co-workers).” DSM-IV at 32.
ability to deal with normal work stress. (Tr. 302.) Dr. Bassi found that Plaintiff was seriously
limited, but not precluded in her ability to maintain attention for two hour segments, maintain
regular attendance and be punctual within customary tolerances, and accept instructions and
respond appropriately to criticism from supervisors. Id. Dr. Bassi indicated that Plaintiff was
limited, but satisfactory in her ability to get along with co-workers or peers without unduly
distracting them or exhibiting behavioral extremes. Id. In support of these findings, Dr. Bassi
stated that Plaintiff has very low energy and frequent exacerbation of anxiety, which interferes
with her daily functioning. Id. Dr. Bassi found that the following abilities were limited but
satisfactory: understand and remember detailed instructions, carry out detailed instructions, set
realistic goals or make plans independently of others, deal with stress of semiskilled and skilled
work, and interact appropriately with the general public. (Tr. 303.) Dr. Bassi anticipated that
Plaintiff would be absent from work due to her impairments more than four times a month. (Tr.
Plaintiff saw a physician assistant at Dr. Suthar’s office on November 7, 2011, at which
time plaintiff reported that she was still working up the courage to take Cymbalta, and also to
consider a coccyx injection. (Tr. 311-312.) Plaintiff was prescribed Norco. (Tr. 312.)
Plaintiff returned for follow-up on January 3, 2012, at which time she reported that the medication
was not working well and not lasting as long as it used to. (Tr. 309.) It was noted that Plaintiff
was working with Dr. Bassi to overcome her fear of injections and medication. Id. She took
Cymbalta for the first time the previous day, and felt very good about that accomplishment. Id.
The ALJ=s Determination
The ALJ made the following findings:
The claimant meets the insured status requirements of the Social Security Act
through December 31, 2014.
The claimant has not engaged in substantial gainful activity since June 30, 2010,
the alleged onset date (20 CFR 404.1571 et seq.).
The claimant has the following severe impairments: major depressive disorder,
generalized anxiety disorder, coccydynia, and degenerative disc disease (20 CFR
The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform light work as defined in 20
CFR 404.1567(b). The claimant has the ability to occasionally lift and/or carry up
to 20 pounds, and frequently lift and/or carry up to 10 pounds. The claimant also
has the ability to stand and/or walk (with normal breaks) for a total of about 6 hours
in an 8-hour workday, and sit (with normal breaks) for a total of about 6 hours in an
8-hour workday. However, the claimant is unable to operate foot control
operations. The claimant further has the ability to occasionally climb ramps or
stairs, stoop, kneel, crouch, and crawl, but should never climb ladders, ropes, or
scaffolds. The claimant should also avoid concentrated exposure to extreme
vibrations and all operational control of moving machinery, working at unprotected
heights, and the use of hazardous machinery. From a mental standpoint, the
claimant is limited to only occupations that involve simple, routine, and repetitive
tasks. The claimant is further limited to low stress jobs, defined as requiring only
occasional decision making and only occasional changes in the work setting with
only occasional interaction with the public.
The claimant is unable to perform any past relevant work (20 CFR 404.1565(20
The claimant was born on June 29, 1968, and was 42 years old, which is defined as
a younger individual age 18-49, on the alleged disability onset date (20 CFR
The claimant has at least a high school education and is able to communicate in
English (20 CFR 404.1564).
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
the claimant is “not disabled,” whether or not the claimant has transferable job
skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the claimant can perform (20 CFR 404.1569 and 404.1569(a)).
The claimant has not been under a disability, as defined in the Social Security Act,
from June 30, 2010, through the date of this decision (20 CFR 404.1520(g)).
The ALJ=s final decision reads as follows:
Based on the application for a period of disability and disability insurance benefits
filed on September 12, 2010, the claimant is not disabled under sections 216(i) and
223(d) of the Social Security Act.
Standard of Review
Judicial review of a decision to deny Social Security benefits is limited and deferential to
the agency. See Ostronski v. Chater, 94 F.3d 413, 416 (8th Cir. 1996). The decision of the SSA
will be affirmed if substantial evidence in the record as a whole supports it. See Roberts v. Apfel,
222 F.3d 466, 468 (8th Cir. 2000). Substantial evidence is less than a preponderance, but enough
that a reasonable mind might accept it as adequate to support a conclusion. See Kelley v.
Callahan, 133 F.3d 583, 587 (8th Cir. 1998). If, after review, it is possible to draw two
inconsistent positions from the evidence and one of those positions represents the Commissioner=s
findings, the denial of benefits must be upheld. See Robinson v. Sullivan, 956 F.2d 836, 838 (8th
Cir. 1992). The reviewing court, however, must consider both evidence that supports and
evidence that detracts from the Commissioner=s decision. See Johnson v. Chater, 87 F.3d 1015,
1017 (8th Cir. 1996)(citing Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)). A[T]he court
must also take into consideration the weight of the evidence in the record and apply a balancing
test to evidence which is contrary.@ Burress v. Apfel, 141 F.3d 875, 878 (8th Cir. 1998). The
analysis required has been described as a Asearching inquiry.@ Id.
Determination of Disability
The Social Security Act defines disability as the Ainability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which can
be expected to result in death or has lasted or can be expected to last for a continuous period of not
less than 12 months.@ 42 U.S.C. ' 416 (I)(1)(a); U.S.C. ' 423 (d)(1)(a). The claimant has the
burden of proving that s/he has a disabling impairment. See Ingram v. Chater, 107 F.3d 598, 601
(8th Cir. 1997).
The SSA Commissioner has established a five-step process for determining whether a
person is disabled. See 20 C.F.R. '' 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137,
141-42, 107 S. Ct. 2287, 2291, 96 L. Ed. 2d. 119 (1987); Fines v. Apfel, 149 F.3d 893, 894-895
(8th Cir. 1998). First, it is determined whether the claimant is currently engaged in Asubstantial
gainful employment.@ If the claimant is, disability benefits must be denied. See 20 C.F.R. ''
404.1520, 416.920 (b). Step two requires a determination of whether the claimant suffers from a
medically severe impairment or combination of impairments. See 20 C.F.R '' 404.1520 (c),
416.920 (c). To qualify as severe, the impairment must significantly limit the claimant=s mental
or physical ability to do Abasic work activities.@ Id. Age, education and work experience of a
claimant are not considered in making the Aseverity@ determination. See id.
If the impairment is severe, the next issue is whether the impairment is equivalent to one of
the listed impairments that the Commissioner accepts as sufficiently severe to preclude substantial
gainful employment. See 20 C.F.R. '' 404.1520 (d), 416.920 (d). This listing is found in
Appendix One to 20 C.F.R. 404. 20 C.F.R. pt. 404, subpt. P, App. 1. If the impairment meets or
equals one of the listed impairments, the claimant is conclusively presumed to be impaired. See
20 C.F.R. '' 404.1520 (d), 416.920 (d). If it does not, however, the evaluation proceeds to the
next step which inquires into whether the impairment prevents the claimant from performing his or
her past work. See 20 C.F.R. ' 404.1520 (e), 416.920 (e). If the claimant is able to perform the
previous work, in consideration of the claimant=s residual functional capacity (RFC) and the
physical and mental demands of the past work, the claimant is not disabled. See id. If the
claimant cannot perform his or her previous work, the final step involves a determination of
whether the claimant is able to perform other work in the national economy taking into
consideration the claimant=s residual functional capacity, age, education and work experience.
See 20 C.F.R. '' 404.1520 (f), 416.920 (f). The claimant is entitled to disability benefits only if
s/he is not able to perform any other work. See id. Throughout this process, the burden remains
upon the claimant until s/he adequately demonstrates an inability to perform previous work, at
which time the burden shifts to the Commissioner to demonstrate the claimant=s ability to perform
other work. See Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998).
The evaluation process for mental impairments is set forth in 20 C.F.R. '' 404.1520a,
416.920a. The first step requires the Commissioner to Arecord the pertinent signs, symptoms,
findings, functional limitations, and effects of treatment@ in the case record to assist in the
determination of whether a mental impairment exists. See 20 C.F.R. '' 404.1520a (b) (1),
416.920a (b) (1). If it is determined that a mental impairment exists, the Commissioner must
indicate whether medical findings Aespecially relevant to the ability to work are present or absent.@
20 C.F.R. '' 404.1520a (b) (2), 416.920a (b) (2). The Commissioner must then rate the degree of
functional loss resulting from the impairments in four areas deemed essential to work: activities
of daily living, social functioning, concentration, and persistence or pace. See
20 C.F.R. '' 404.1520a (b) (3), 416.920a (b) (3). Functional loss is rated on a scale that ranges
from no limitation to a level of severity which is incompatible with the ability to perform
work-related activities. See id. Next, the Commissioner must determine the severity of the
impairment based on those ratings. See 20 C.F.R. '' 404.1520a (c), 416.920a (c). If the
impairment is severe, the Commissioner must determine if it meets or equals a listed mental
disorder. See 20 C.F.R. '' 404.1520a(c)(2), 416.920a(c)(2). This is completed by comparing
the presence of medical findings and the rating of functional loss against the paragraph A and B
criteria of the Listing of the appropriate mental disorders. See id. If there is a severe impairment
but the impairment does not meet or equal the listings, then the Commissioner must prepare a
residual functional capacity assessment. See 20 C.F.R. '' 404.1520a (c)(3), 416.920a (c)(3).
Plaintiff argues that the ALJ erred in determining Plaintiff’s RFC. Plaintiff also contends
that the hypothetical question posed to the vocational expert was erroneous. The undersigned
will discuss Plaintiff’s claims in turn.
Residual Functional Capacity
The ALJ made the following determination with regard to plaintiff=s RFC:
After careful consideration of the entire record, the undersigned finds that the claimant has
the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b).
The claimant has the ability to occasionally lift and/or carry up to 20 pounds, and
frequently lift and/or carry up to 10 pounds. The claimant also has the ability to stand
and/or walk (with normal breaks) for a total of about 6 hours in an 8-hour workday, and sit
(with normal breaks) for a total of about 6 hours in an 8-hour workday. However, the
claimant is unable to operate foot control operations. The claimant further has the ability
to occasionally climb ramps or stairs, stoop, kneel, crouch, and crawl, but should never
climb ladders, ropes, or scaffolds. The claimant should also avoid concentrated exposure
to extreme vibrations and all operational control of moving machinery, working at
unprotected heights, and the use of hazardous machinery. From a mental standpoint, the
claimant is limited to only occupations that involve simple, routine, and repetitive tasks.
The claimant is further limited to low stress jobs, defined as requiring only occasional
decision making and only occasional changes in the work setting with only occasional
interaction with the public.
Plaintiff argues that the ALJ failed to point to “some” medical evidence to support his
RFC findings, and therefore fails to comply with the standards contained in Singh and Lauer.
RFC is what a claimant can do despite her limitations, and it must be determined on the
basis of all relevant evidence, including medical records, physician=s opinions, and claimant=s
description of her limitations. Dunahoo v. Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001).
Although the ALJ bears the primary responsibility for assessing a claimant=s RFC based on all
relevant evidence, a claimant=s RFC is a medical question. See Lauer v. Apfel, 245 F.3d 700, 704
(8th Cir. 2001); Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000). Therefore, an ALJ is required
to consider at least some supporting evidence from a medical professional. See Lauer, 245 F.3d
at 704 (some medical evidence must support the determination of the claimant=s RFC); Casey v.
Astrue, 503 F.3d 687, 697 (8th Cir. 2007) (the RFC is ultimately a medical question that must find
at least some support in the medical evidence in the record). An RFC determination made by an
ALJ will be upheld if it is supported by substantial evidence in the record. See Cox v. Barnhart,
471 F.3d 902, 907 (8th Cir. 2006).
In determining Plaintiff’s RFC, the ALJ first properly evaluated the credibility of
Plaintiff’s subjective complaints of pain and limitation. An ALJ may discredit a claimant’s
subjective allegations of disabling symptoms to the extent they are inconsistent with the overall
record as a whole, including: the objective medical evidence and medical opinion evidence; the
claimant’s daily activities; the duration, frequency, and intensity of pain; dosage, effectiveness
and side effects of medications and medical treatment; and the claimant’s self-imposed
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984); 20 C.F.R. § 404.1529;
The ALJ cited the following factors in discrediting plaintiff’s subjective complaints of
disabling pain and limitations: (1) the lack of objective medical evidence supporting Plaintiff’s
complaints; (2) Plaintiff achieved good relief from her pain with medication; (3) Plaintiff received
only conservative treatment; (4) Plaintiff was non-compliant with treatment recommendations;
and (5) Plaintiff engaged in significant daily activities. (Tr. 16-17.)
Plaintiff contends that the ALJ’s determination regarding Plaintiff’s physical limitations is
not supported by substantial evidence, because the ALJ failed to cite any medical evidence for his
findings. Contrary to Plaintiff’s contention, however, the ALJ cited specific medical evidence
upon which he relied.
The ALJ first stated that Dr. Weis examined Plaintiff in July 2010 and found that Plaintiff’s
coccydynia symptoms were no more than mild. (Tr. 16, 225.) Dr. Weis found that Plaintiff had
no neurological or tendon deficits, and was able to ambulate well. Dr. Weis also noted that
Plaintiff was obtaining “fairly good relief” from medication. Dr. Weis released Plaintiff for
“unlimited activity.” The ALJ next noted that Dr. Randolph examined Plaintiff in September
2010, and concluded that Plaintiff should continue conservative treatment and stay active. (Tr.
16, 230.) Upon examination, Dr. Randolph noted only mild lumbar symptoms, no spasms, full
range of motion, negative straight leg raising test, and normal strength in the lower extremities.
The ALJ pointed out that MRIs of Plaintiff’s lumbar spine revealed no evidence of nerve root
compression, spinal arachoniditis, or spinal stenosis. (Tr. 17, 216.) Finally, the ALJ noted that
Dr. Suthar recommended conservative treatment, consisting of medication and injections, and
Plaintiff did not follow through with his treatment recommendations. (Tr. 17.)
The ALJ’s physical RFC is supported by substantial evidence on the record as a whole.
The ALJ found that the objective medical evidence does not support Plaintiff’s allegations of
severe coccydynia. The ALJ relied on the findings of Drs. Weis, Randolph, and Suthar in
determining Plaintiff’s RFC. Minimal findings were noted by these providers on examination.
Notably, none of the physicians imposed any limitations on Plaintiff. In fact, Dr. Weis released
Plaintiff for unlimited activity in August 2010. (Tr. 226.) In addition, the ALJ performed a
proper credibility analysis and found Plaintiff’s allegations less than credible. (Tr. 16-17) Thus,
the ALJ’s finding that Plaintiff is capable of performing a limited range of light work is supported
by substantial evidence.
With regard to Plaintiff’s mental RFC, Plaintiff contends that the ALJ erred in evaluating
the opinion of Plaintiff’s treating psychologist, Dr. Bassi.
The ALJ has the role of resolving conflicts among the opinions of various treating and
examining physicians. Pearsall v. Massanari, 274 F.3d 1211, 1219 (8th Cir. 2001). The ALJ
may reject the conclusions of any medical expert, whether hired by the government or the
claimant, if they are inconsistent with the record as a whole. Id. “A treating physician’s
opinion is given controlling weight if it ‘is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [a
claimant’s] case record.’”
Tilley v. Astrue, 580 F.3d 675, 679 (8th Cir. 2009) (quoting 20
C.F.R. § 404.1527(d)(2)).
However, “[w]hen a treating physician’s opinions are inconsistent or
contrary to the medical evidence as a whole, they are entitled to less weight.” Halverson v.
Astrue, 600 F.3d 922, 929-30 (8th Cir. 2010) (internal quotation marks omitted).
of a consulting physician, who examines a claimant once, or not at all, generally receives very
little weight. Singh, 222 F.3d at 452. The opinion of an examining physician is generally
entitled to more weight than the opinion of a non-examining physician. 20 C.F.R.
Under the regulations, the ALJ “will always give good reasons . . . for the
weight [he or she] give[s] [a claimant’s] treating source opinion.” 20 C.F.R. § 404.1527(c)(2).
Dr. Bassi completed a Mental Residual Functional Capacity Questionnaire on October 20,
2011, in which she listed Plaintiff’s diagnoses as: major depression, and generalized anxiety,
with a current GAF score and highest GAF score in the past year of 55. (Tr. 300.) Dr. Bassi
expressed the opinion that Plaintiff was unable to meet competitive standards in her ability to
complete a normal work day and work week without interruptions from psychologically based
symptoms, ability to perform at a consistent pace without an unreasonable number and length of
rest periods, and her ability to deal with normal work stress. (Tr. 302.) Dr. Bassi found that
Plaintiff was seriously limited but not precluded in her ability to maintain attention for two hour
segments, maintain regular attendance and be punctual within customary tolerances, and accept
instructions and respond appropriately to criticism from supervisors. Dr. Bassi indicated that
Plaintiff was limited but satisfactory in her ability to get along with co-workers or peers without
unduly distracting them or exhibiting behavioral extremes. Dr. Bassi found that the following
abilities were limited, but satisfactory: understand and remember detailed instructions, carry out
detailed instructions, set realistic goals or make plans independently of others, deal with stress of
semiskilled and skilled work, and interact appropriately with the general public. (Tr. 303.) Dr.
Bassi anticipated that Plaintiff would be absent from work due to her impairments more than four
times a month. (Tr. 304.)
The ALJ indicated that he was assigning “only some weight” to Dr. Bassi’s opinion. (Tr.
17.) Specifically, the ALJ stated that he was giving significant weight to Dr. Bassi’s opinion that
Plaintiff’s symptoms cause no limitations, but little evidentiary weight to Dr. Bassi’s remaining
opinion. The ALJ stated that Dr. Bassi primarily relied upon Plaintiff’s subjective complaints and
assessed GAF scores of 50 and 55, which indicate “predominantly moderate symptoms.” The
ALJ further noted that Plaintiff’s medical records reveal that medication helped Plaintiff’s
symptoms, and her activities show that she is “quite active.” (Tr. 18.) The ALJ stated that this
evidence shows that Plaintiff’s symptoms are not as severe as Plaintiff alleges and that Dr. Bassi
relied heavily upon Plaintiff’s subjective complaints rather than objective evidence. The ALJ
also noted that state agency psychologist Dr. Cottone found that Plaintiff did not have a medically
determinable impairment based on a review of Plaintiff’s medical records conducted in December
of 2010. (Tr. 234.)
The undersigned finds that the ALJ provided sufficient reasons for discrediting portions of
Dr. Bassi’s opinion. Significantly, Dr. Bassi found that Plaintiff was able to satisfactorily
perform twenty-two of twenty-five work functions, including all aptitudes needed to perform
semiskilled and skilled work. (Tr. 302-03.) Although Dr. Bassi found that Plaintiff was unable
to meet competitive standards in her ability to deal with normal work stress associated with
unskilled work, Dr. Bassi also found that Plaintiff was capable of dealing with the stress associated
with semi-skilled and skilled work. The ALJ’s statement that Dr. Bassi “primarily found that the
claimant’s symptoms cause no limitations,” is therefore accurate. (Tr. 17.)
The ALJ noted that the disabling limitations found by Dr. Bassi were inconsistent with Dr.
Bassi’s own treatment notes. Dr. Bassi assessed a GAF score of 50 at Plaintiff’s initial evaluation
in February 2011, and assessed a GAF score of 55 in her October 2011 opinion. (Tr. 300.)
Plaintiff disputes the ALJ’s statement that Plaintiff’s GAF scores are indicative of “predominantly
moderate symptoms.” (Tr. 17.) A score of 50 is on the borderline between serious to moderate
symptoms, whereas a score of 55 falls in the middle of the moderate symptom range.16 The ALJ’s
characterization of Plaintiff’s GAF scores as indicative of predominantly moderate symptoms is
Dr. Bassi’s treatment notes also do not reflect the presence of serious symptoms. Dr.
Bassi consistently noted that Plaintiff’s “reported mood” was anxious and depressed. (Tr.
290-97.) Dr. Bassi described Plaintiff’s affect as either “normal” (Tr. 297, 294), “labile” (Tr. 296,
295, 293, 291, 290) or “irritable” (Tr. 292.) Plaintiff’s thought process was intact and she denied
any suicidal ideation. (Tr. 290-97.) Dr. Bassi noted Plaintiff’s anxiety related to taking
medication on several occasions, but noted few other findings on examination. Dr. Bassi’s
treatment notes do not support the presence of disabling limitations.
The ALJ pointed out that Plaintiff’s reported activities show that she is “quite active.”
(Tr. 18.) Plaintiff reported in a function report dated October 1, 2010 that she takes care of five
children, cooks meals, does household chores, goes outside daily, drives, shops, manages her own
finances, reads daily, crotchets, talks to others daily, and attends Church every Sunday. (Tr.
145-50.) Plaintiff further stated that she has “no attention problems.” (Tr. 150.) Plaintiff’s
reported daily activities are inconsistent with the presence of disabling mental impairments.
Finally, the ALJ discussed the other medical evidence of record. The ALJ pointed out that
Dr. Datta’s records reveal that Plaintiff’s condition improved with medication. (Tr. 9, 306-07.)
See DSM-IV at 32.
In addition, the ALJ noted that state agency psychologist Dr. Cottone expressed the opinion that
Plaintiff had no medically determinable impairment based on a review of the record. (Tr. 234.)
The ALJ properly assigned “little weight,” to this opinion, finding that Plaintiff does have a severe
medically determinable mental impairment. (Tr. 18.) It is significant, however, that Plaintiff
was not seeing a mental health provider when Dr. Cottone reviewed the record in December 2010,
despite her allegation of a disabling mental impairment beginning on June 30, 2010. Plaintiff was
referred to Dr. Bassi by Dr. Suthar in January 2011 due to her anxiety about taking medication.
In sum, the mental RFC formulated by the ALJ is supported by substantial evidence on the
record as a whole. The ALJ properly concluded that Dr. Bassi’s opinion that Plaintiff had
limitations that would preclude the performance of unskilled work was not supported by the
record. The ALJ nonetheless accorded some weight to Dr. Bassi’s opinion in limiting Plaintiff to
low stress jobs involving only occasional interaction with the public. The ALJ’s determination is
consistent with the objective medical evidence, including Dr. Bassi’s treatment notes and the
treatment notes of Dr. Datta, as well as Plaintiff’s reported daily activities.
Plaintiff also argues that the hypothetical question posed to the vocational expert did not
capture the concrete consequences of Plaintiff’s impairments, because it was based on the ALJ’s
erroneous RFC findings.
“A vocational expert’s testimony constitutes substantial evidence when it is based on a
hypothetical that accounts for all of the claimant’s proven impairments.” Hulsey v. Astrue, 622
F.3d 917, 922 (8th Cir. 2010).
The undersigned has found that the ALJ’s RFC determination is supported by substantial
evidence on the record as a whole. The hypothetical question posed to the vocational expert is
consistent with the ALJ’s RFC determination. The ALJ concluded, based on this RFC, that
Plaintiff was capable of performing other jobs, such as cafeteria attendant, file clerk, or small
products assembler. (Tr. 19, 48-49.)
Thus, Plaintiff’s claim that the hypothetical question was
flawed lacks merit.
Substantial evidence in the record as a whole supports the decision of the ALJ finding
Plaintiff not disabled, because the evidence of record does not support the presence of a disabling
impairment. Accordingly, Judgment will be entered separately in favor of defendant in
accordance with this Memorandum.
UNITED STATES MAGISTRATE JUDGE
Dated this 22nd day of September, 2014.
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