Dell v. Social Security Administration
MEMORANDUM AND ORDER..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 during the relevant period. Accordingly, Judgment will be entered separately in favorof defendant in accordance with this Memorandum.. Signed by Magistrate Judge Abbie Crites-Leoni on 9/29/14. (MRS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SHAWNA E. CHRISTOPHER-DELL,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Case No. 4:13CV954 ACL
This is an action under 42 U.S.C. ' 405(g) for judicial review of Defendant=s final decision
denying the application of Shawna E. Christopher-Dell 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. 17]
Defendant filed a Brief in Support of the Answer. [Doc. 22]
On July 23, 2010, Plaintiff filed an application for Disability Insurance Benefits, claiming
that she became unable to work due to her disabling condition on January 1, 2009. (Tr. 144-50.)
Plaintiff subsequently amended his alleged onset date to September 30, 2009. (Tr. 26.) The
Plaintiff’s application was initially denied. (Tr. 59) Following an administrative hearing,
Plaintiff=s claim was denied in a written opinion by an Administrative Law Judge (ALJ), dated
January 6, 2012. (Tr. 6-22.) 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 March 19,
2013. (Tr. 5, 1-3.) 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 July 13, 2011. (Tr. 25.) Plaintiff was
present and represented by counsel. Id. Also present was vocational expert Rita Payne. Id.
Plaintiff’s attorney made an opening statement, in which he argued that Plaintiff suffers
from low back pain, sleep apnea, severe swelling of the left leg, hearing loss in the right ear,
depression, and anxiety. (Tr. 27.) Plaintiff’s attorney stated that Plaintiff’s psychological
problems pre-date her date last insured. Id. In addition, Plaintiff’s attorney stated that he does
not believe a listing is met. Id.
The ALJ questioned Plaintiff, who testified that she was twenty-three years of age;
five-feet, six inches tall; and weighed 350 pounds. (Tr. 28.) Plaintiff stated that her normal
weight is 220 to 250 pounds. Id. Plaintiff testified that her gynecologist indicated her weight
gain was caused in part by her “feminine issues.” Id.
Plaintiff testified that she has a valid driver’s license, and that she drives “for a little while.”
(Tr. 29.) Plaintiff stated that she starts to experience back pain and a tingling sensation in her
lower back after driving for about twenty minutes. Id.
Plaintiff testified that she graduated from high school and cosmetology school. Id. The
cosmetology school made adjustments for her by allowing her to take breaks between clients
rather than requiring her to stand eight hours straight. (Tr. 29-30) Plaintiff attended Columbia
College at Lake of the Ozarks for one semester, however, stopped attending college to pursue a
career in cosmetology. (Tr. 30)
Plaintiff graduated from cosmetology school in March of 2011, however, has not worked
as a cosmetologist, because she does not have a license. (Tr. 30-31) Plaintiff cannot take the
state boards required for a license until she pays a debt owed to a cosmetology school she attended,
plus she will require accommodations allowing her to sit down and she has not yet been granted
those accommodations. Id.
Plaintiff testified that she was not working at the time of the hearing. (Tr. 31) Her last
job was working at the front counter at Burger King in 2009. (Tr. 31-32) She worked at this
position for a “couple weeks,” and left because her vehicle was totaled in an accident and she
lacked transportation. (Tr. 31)
Plaintiff stated that she started attending cosmetology school in September of 2008, but
took several periods of leave due to medical issues (including swollen tonsils, sleep apnea, and
narcolepsy) before finishing in March 2011. (Tr. 32) She also transferred to a different
cosmetology school closer to her home. Id.
Prior to working at Burger King, Plaintiff worked as a stocker at ALCO, a retail store
located in Minnesota. (Tr. 33.) She lifted approximately twenty-five pounds at this position and
left the position when she moved back to Missouri. Id. Plaintiff also worked at the front desk
taking reservations and answering the phone at Walleye Inn, but left the job, because she “didn’t
like it.” (Tr. 34) She worked as a dietary aide at Windsor Estates and was terminated from that
position, because she did not show up for work and did not call to notify her employer. Id.
Plaintiff worked as a preschool teacher for “a couple years” at various locations. (Tr. 35) She
also had jobs at a shoe store as a salesperson for a summer, Walgreens in the beauty department for
six to eight months, and Denny’s as a waitress and as a hostess for a summer when she was in high
school. (Tr. 34-36.) Finally, Plaintiff worked at the Gap stocking clothes for about eleven
months; she was terminated from this position when she did not show up to work. (Tr. 36-37.)
Plaintiff testified that she was unable to work at the time of the hearing because she was
only able to stand for about twenty minutes before she needing to lean or sit down; and she is only
able to sit for about thirty minutes before she starts getting uncomfortable and experiencing pain in
her back. (Tr. 37) The pain in her lower back is constant, id., and Plaintiff rated her back pain as
a six on a scale of zero to ten (Tr. 38). Plaintiff testified that her pain is decreased when she lies
down, but standing and walking cause her pain to increase. Id. She also has pain and swelling in
her left leg from her knee down to her toes; the swelling started in October of 2009, and it has not
stopped. (Tr. 38-39.) The swelling decreases when Plaintiff sleeps. (Tr. 39.)
Plaintiff moved to Nebraska where she sees an orthopedic surgeon, Dr. Harris. (Tr. 40.)
He ordered x-rays and an MRI. Id. Dr. Harris told Plaintiff that the imaging did not reveal any
bone damage, and referred her to a neurologist. (Tr. 41) The ALJ indicated that he would leave
the record open for thirty days to allow Plaintiff to submit the records from Dr. Harris. (Tr. 42.)
Plaintiff also stated that she had upcoming appointments scheduled with a psychiatrist (Tr.
42, 49) and a primary care physician (Tr. 41).
At the time of the hearing, Plaintiff was taking Ativan,1 Zantac,2 Flexeril,3 Naproxen,4
Ativan is indicated for the treatment of anxiety. See WebMD, http://www.webmd.com/drugs
(last visited September 17, 2014).
Zantac is indicated for the treatment of gastroesophageal reflux disease (“GERD”). See
Physician=s Desk Reference (PDR), 1672 (63rd Ed. 2009).
Flexeril is indicated for the treatment of muscle spasms. See WebMD,
http://www.webmd.com/drugs (last visited September 17, 2014).
Naproxen is a nonsteroidal anti-inflammatory drug indicated for the relief of osteoarthritis. See
PDR at 2633.
Zoloft,5 and Abilify6 daily, as well as Excedrin. (Tr. 43.) Plaintiff stated that her medications
help her “for the most part”; clarifying that she still experiences pain when she takes her
medications, but the medication “definitely eases it up and keep it to where it’s tolerable,” so that
she is able to “kind of function.” Id. Plaintiff experiences “extreme drowsiness,” as a side effect
from her medication. Id.
Plaintiff stated neither surgery nor injections have been recommended for her back pain.
Id. She is able to bend over, climb a flight of stairs, and while she can lift a gallon of milk, she
does not. (Tr. 44.) Plaintiff testified that her gynecologist recently restricted her to lifting only
ten pounds due to her ovarian disease. about two to three times a day
Plaintiff stated that she saw a psychiatrist on one occasion upon the referral of her
caseworker. (Tr. 45) The psychiatrist told Plaintiff she has symptoms consistent with bipolar
disorder and borderline personality disorder. Id. Plaintiff stated that she had an appointment
scheduled with a psychiatrist for the month following the hearing. Id. Plaintiff testified that Dr.
George Stachecki prescribed Abilify. Id. Plaintiff indicated that she has difficulty with
concentration and short-term memory and difficulty dealing with people (Tr. 45); she does fine in
small groups of people, but she gets frustrated when she is in large groups (Tr. 46).
On a typical day, Plaintiff takes a shower, lets her dog out, sits down to watch the news, and
eats breakfast. Id. She spends the rest of her day alternating between lying down, walking
around, and sitting watching television. Id. Plaintiff occasionally watches her nieces and
nephews at her home--they are 21 months, three, four, and ten years of age. Id. Approximately
Zoloft is indicated for the treatment of depression. See WebMD, http://www.webmd.com/drugs
(last visited September 17, 2014).
Abilify is an antipsychotic drug indicated for the treatment of bipolar disorder and major
depressive disorder. See PDR at 881.
once per week, Plaintiff watches all four children by herself for “about a couple hours.” (Tr. 47.)
Plaintiff makes bracelets as a hobby about two to three times a day, especially when she feels
depressed. Id. Plaintiff does not go shopping without her husband. Id.
Upon examination by her attorney, Plaintiff testified that she was adopted at the age of five.
(Tr. 48.) Although her biological parents came in and out of her life for a period of time after she
was adopted, they eventually stopped contacting her. Id. Plaintiff saw a counselor, Joyce
Coleman, from the age of five to the age of nine, however, those records are unavailable. Id.
Plaintiff stated that Dr. Stachecki started prescribing Zoloft and Abilify in 2010. Id.
Plaintiff testified that she takes these medications daily, although she forgot to take them the
morning of the hearing. (Tr. 49.)
Plaintiff testified that, when she is depressed, she feels as though there is “no point of being
here,” and she cries; this occurs three to five times a week and Plaintiff isolates herself during these
episodes. Id. She has experienced these episodes since high school. Id.
Plaintiff leaves her home about three times a week, however, she stated that it is difficult to
leave, because she does not like being around a lot of people. Id. Plaintiff indicated she started
avoiding people when she had problems related to sleep apnea. (Tr. 50.)
Plaintiff testified that she currently has health insurance through her husband’s employer in
Nebraska. Id. Prior to having insurance, she went to the emergency room for treatment. Id.
Plaintiff testified that she weighed 350 pounds at the time of the hearing, and that she
weighed 250 pounds in September of 2009. Id. Plaintiff stated that, due to the weight gain, it is
more difficult for her to put on shoes, and to just get around in general. (Tr. 51.) Plaintiff is
unable to wear tennis shoes due to her leg swelling, and usually wears flip flops. Id. She is also
“hot all the time,” Plaintiff was less hot prior to her weight gain. Id. Plaintiff stated that she is
“always tired,” although she did not know whether her fatigue was caused by the weight gain or
her medication. Id.
A supplemental hearing was held on December 7, 2011, to take testimony vocational
expert (VE) Dolores Gonzalez. (Tr. 55.)
Plaintiff’s attorney asked the VE to assume a hypothetical claimant with Plaintiff’s
background and the following limitations: limited to sedentary, unskilled work; able to sit for
thirty minutes at one time before needing to get up; can stand for thirty minutes before needing to
sit down or walk around; can walk one fourth of one mile without rest; can sit for a total of four
hours in an eight-hour workday with normal breaks; and can stand and walk a total of two hours in
an eight-hour workday with normal breaks. (Tr. 56.) The VE testified that the individual would
be unable to work competitively. (Tr. 57.)
Plaintiff’s attorney next asked the VE to assume the hypothetical posed by the ALJ in
question number seven, which was sent to the VE by mail with the addition of a limitation of being
absent three times a month. Id. The VE testified that the hypothetical claimant would be unable
to maintain competitive employment at that rate of absenteeism. Id.
Relevant Medical Records
On May 10, 2009, Plaintiff presented to the emergency room at St. Joseph Health
Center-Wentzville with complaints of right-sided ear pain with discharge. (Tr. 245.) The
examining physician, Navin Choudhary, M.D., noted a depressed, flat affect, on examination.
(Tr. 247.) Dr. Choudhary prescribed antibiotics for Plaintiff’s ear infection. (Tr. 248.)
Six months later, Plaintiff went to the emergency room with complaints of a sore throat,
sinus congestion, and earache. (Tr. 253.) No abnormalities were noted on examination. (Tr.
253-54.) Plaintiff was diagnosed with acute pharyngitis and throat pain, and was prescribed
antibiotics. (Tr. 255.)
Less than two months later, Plaintiff went to the emergency room with complaints of
persistent sore throat for the prior two months. (Tr. 416.) She also reported difficulty sleeping at
night, possibly due to the sore throat and tonsillar swelling, and that she falls asleep unexpectedly
during the day. Id. Upon physical examination, Plaintiff was noted to be morbidly obese and in
no obvious distress. Id. Plaintiff’s tonsils were markedly enlarged. (Tr. 417) Plaintiff was
prescribed a steroid, and was advised to follow-up with her primary care physician. (Tr. 418)
Plaintiff presented to George P. Stachecki, M.D., on February 5, 2010, with complaints of
chronic sore throats, sleep issues, over active bladder, and bipolar disorder. (Tr. 317.) Plaintiff
reported she was a smoker for seven years. Id. Dr. Stachecki diagnosed Plaintiff with tonsillitis,
obesity, and apnea. (Tr. 319.) He recommended that Plaintiff see an ENT for her tonsillitis. Id.
Dr. Stachecki stated that he hoped an ENT would work with Plaintiff regarding her finances
because she has “large exudative tonsils that meet the midline and are probably compounding her
other medical problems.” Id. Dr. Stachecki also had a “lengthy conversation” with Plaintiff
regarding “the hard work of losing weight.” Id.
Plaintiff underwent testing at Barnes-Jewish St. Peters Hospital Sleep and Breathing Lab
on February 28, 2010. (Tr. 270-87.) Plaintiff was diagnosed with severe obstructive sleep
apnea7 syndrome made complex sleep apnea with the use of a continuous positive airway pressure
A disorder characterized by recurrent interruptions of breathing during sleep, due to temporary
obstruction of the airway by lax, excessively bulky, or malformed pharyngeal tissues, with
(“CPAP”) machine; severe sleep hypoxemia;8 morbid obesity with body mass index in excess of
50; severe fragmentation of sleep secondary to sleep apnea; and excellent response to bi-level
positive airway pressure (“BiPAP”) machine. (Tr. 287.) It was recommended that Plaintiff be
placed on the BiPAP, lose weight, and exercise daily. Id.
Plaintiff underwent surgical removal of her tonsils and adenoids to treat tonsil and adenoid
hypertrophy and obstructive sleep apnea on March 24, 2010. (Tr. 377.)
Plaintiff presented to Dr. Stachecki on August 3, 2010, with complaints of lower extremity
edema and anxiety. (Tr. 315.) Plaintiff reported great benefit from the use of Abilify. Id.
Upon examination, Dr. Stachecki noted Plaintiff complained of back pain. (Tr. 316.) Dr.
Stachecki diagnosed Plaintiff with obesity and chronic hypertension. Id. He recommended
weight reduction, and refilled prescriptions for Zoloft, Ativan, and Abilify. Id.
Plaintiff presented to Dr. Stachecki on September 15, 2010, with complaints of edema,
back pain, and numbness. (Tr. 355.) Dr. Stachecki noted that edema was still a problem
secondary to Plaintiff’s obesity. Id. Plaintiff’s medications were noted to include: Flexeril and
Clinoril, Zoloft, Prilosec, Ativan, and Abilify. Id. Upon examination, no skeletal tenderness,
joint deformity, or edema was noted. (Tr. 356.) Dr. Stachecki diagnosed Plaintiff with lumbago,
and added prescriptions for. Id. He recommended that Plaintiff stretch daily and continue to
lose weight. Id.
On January 13, 2011, Plaintiff complained of worsening lower back pain. (Tr. 350.)
Upon examination, Plaintiff had normal musculature, no skeletal tenderness or joint deformity,
and no edema. (Tr. 351.) Dr. Stachecki noted there was “no unusual anxiety or evidence of
resultant hypoxemia and chronic lethargy. Stedman’s at 119.
Subnormal oxygenation of arterial blood. Stedman’s at 939.
depression” on examination. (Tr. 352.) Dr. Stachecki diagnosed Plaintiff with obesity and low
back pain syndrome. Id. Dr. Stachecki discussed with Plaintiff the correlation between her
weight and back pain, and recommended weight reduction and regular daily stretching. Id. He
continued the Flexeril, noting that it had been helpful in relieving Plaintiff’s pain. Id.
Plaintiff presented to Justin D. Harris, M.D., at Nebraska Orthopaedic and Sports
Medicine, on June 23, 2011, for evaluation of her left leg and low back pain. (Tr. 391-92.)
Plaintiff reported low back pain as well as burning pan into her buttock and numbness and tingling
in the lateral lower leg, plus swelling with prolonged periods of ambulation in the lower leg. (Tr.
391) Upon physical examination, Dr. Harris noted pitting edema in the left lower leg from the
ankle to the mid-shin; mild tenderness with palpation of the lateral-sided lower leg; and positive
straight leg raise with pain in the buttock and burning pain through the lateral lower leg, as well as
increased numbness and tingling. Id. Plaintiff had good strength, full motor and sensory
function, and full range of motion. Id. Dr. Harris diagnosed Plaintiff with left-sided back pain
with possible lumbar radiculopathy. Id. He ordered an MRI of the low back. (Tr. 392.)
Plaintiff underwent an MRI of the lumbar spine on June 23, 2011, which was normal. (Tr.
390.) Dr. Harris reviewed Plaintiff’s MRI on June 27, 2011; he did not see any significant
pathology and referred Plaintiff to a physiatrist. (Tr. 389.)
Dr. Harris completed a Physical Residual Functional Capacity Questionnaire on August
11, 2011. (Tr. 241-44.) He had seen Plaintiff on one occasion for left-sided back pain; and
burning and numbness/tingling in the left leg. (Tr. 241.) Dr. Harris listed his clinical findings
as: pitting edema of the left ankle to shin, tenderness to palpation of the lateral side of the left leg,
and positive straight leg raise. (Tr. 389.) Dr. Harris indicated that Plaintiff’s experience of pain
was seldom severe enough to interfere with attention and concentration, and that Plaintiff was
capable of low stress jobs. (Tr. 242.) He noted that Plaintiff experienced no medication side
effects. (Tr. 399.) Dr. Harris expressed the opinion that Plaintiff could sit for thirty minutes at a
time, and sit a total of four hours in an eight-hour work day; stand for thirty minutes at a time, and
stand a total of two hours in an eight-hour work day; must walk every sixty minutes for five
minutes; requires unscheduled breaks two times a day for ten minutes; can frequently lift less than
ten pounds, occasionally lift ten pounds, and rarely lift twenty pounds; and can rarely twist, stoop,
crouch, and climb ladders and stairs. (Tr. 242-44.) Finally, Dr. Harris estimated that Plaintiff
would likely be absent from work as a result of her impairments or treatment about three days per
month. (Tr. 244.)
The ALJ=s Determination
The ALJ made the following findings:
The claimant last met the insured status requirements of the Social Security Act on
September 30, 2009.
The claimant did not engage in substantial gainful activity during the period from
her alleged onset date of January 1, 2009 through her date last insured of September
30, 2009 (20 CFR 404.1571 et seq.).
Through the date last insured, the claimant had the following severe impairments:
low back pain, obesity, edema (leg), and depression (20 CFR 404.1520(c)).
Through the date last insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled 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, I find that, through the date last
insured, the claimant had the residual functional capacity to perform sedentary
work as defined in 20 CFR404.1567(a) except that she is limited to unskilled work,
she requires a sit/stand option every 45 minutes while remaining on task, and she
can only have occasional interaction with the public.
Through the date last insured, the claimant was unable to perform any past relevant
work (20 CFR 404.1565).
The claimant was born on May 26, 1988 and was 21 years old, which is defined as
a younger individual age 18-44, on the date last insured (20 CFR 404.1563).
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 an issue in this case because the claimant is
limited to unskilled work (20 CFR 404.1568).
Through the date last insured, considering the claimant’s age, education, work
experience, and residual functional capacity, there were jobs that existed in
significant numbers in the national economy that the claimant could have
performed (20 CFR 404.1569 and 404.1569(a)).
The claimant was not under a disability, as defined in the Social Security Act, at
any time from January 1, 2009, the alleged onset date, through September 30, 2009,
the date last insured (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
protectively filed on April 26, 2010, the claimant was not disabled under sections
216(i) and 223(d) of the Social Security Act through September 30, 2009, the last
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 assessing the credibility of her subjective complaints
of pain and limitation. Plaintiff also contends that the ALJ’s RFC determination is not based on
substantial evidence. The undersigned will discuss Plaintiff’s claims in turn.
Plaintiff first argues that the ALJ erred in considering the credibility of Plaintiff’s
subjective complaints. Plaintiff contends that the ALJ failed to provide “good reasons” for
discrediting Plaintiff’s testimony, and based her decision on a lack of objective medical evidence.
An ALJ may not disregard a claimant’s subjective complaints solely, because they are not
fully supported by objective medical evidence. Ramirez v. Barnhart, 292 F.3d 576, 581 (8th Cir.
2002) (citing Chamberlain v. Shalala, 47 F.3d 1489, 1494 (8th Cir. 1995)). Instead, in addition to
considering objective medical evidence, the ALJ must consider all evidence relating to the
claimant’s 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, i.e., the Polaski factors. Halverson v. Astrue, 600 F.3d 922, 931 (8th
Cir. 2010); Ramirez, 292 F.3d at 581; Polaski v. Heckler, 739 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 v. Barnhart, 363 F.3d 731, 738-39 (8th Cir. 2004). It is
not enough that the record merely contain inconsistencies. Instead, the ALJ must specifically
demonstrate in his decision that he 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 v. Barnhart, 403 F.3d 953, 957 (8th
Cir. 2005); Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001).
Here, contrary to Plaintiff’s assertion, the ALJ set out numerous inconsistencies other than
the lack of objective medical evidence to find Plaintiff’s subjective complaints to be not entirely
credible. The ALJ first noted that Plaintiff testified that her back pain is relieved with medication.
(Tr. 14.) Impairments that are controllable or amenable to treatment do not support a finding of
disability. Roth v. Shalala, 45 F.3d 279, 282 (8th Cir. 1995). Plaintiff argues that the ALJ’s
characterization of her testimony was “inexact.” (Doc. No. 17, p. 6.) The record reveals that
Plaintiff testified that her medications help her “for the most part.” (Tr. 43.) Plaintiff stated that
she is “still in pain,” yet her medication keeps her pain to a “tolerable” level to allow her to “kind
of function.” Plaintiff’s testimony supports the ALJ’s finding that Plaintiff’s medication is
effective in reducing her pain. “[T]he question is not whether [plaintiff] suffers any pain; it is
whether [plaintiff] is fully credible when she claims that [the pain] hurts so much that it prevents
her from engaging in her prior work.” Benskin v. Bowen, 830 F.2d 878, 883 (8th Cir. 1987). In
addition, this finding is supported by the medical record. Notably, Dr. Stachecki found that
Plaintiff’s back pain improved with the use of Flexeril. (Tr. 14, 350, 352.)
Plaintiff argues that the ALJ failed to consider the alleged side effects of Plaintiff’s
medications. Plaintiff testified at the hearing that her medications caused “extreme drowsiness.”
(Tr. 43.) Although it is true the ALJ did not discuss Plaintiff’s alleged drowsiness as a side effect,
the medical record does not indicate that Plaintiff complained of this side effect to her physicians.
In fact, Dr. Harris specifically noted in his Physical Residual Functional Capacity Questionnaire
that Plaintiff experienced no medication side effects. (Tr. 399.) Thus, the ALJ did not err in
failing to discuss Plaintiff’s alleged extreme drowsiness as a medication side effect.
The ALJ next noted that Plaintiff has never had physical therapy or injections for her pain,
and no physician has ever suggested surgery to relieve her pain. (Tr. 14.) Plaintiff argues that
the lack of physical therapy, injections, and surgery is not inconsistent with her allegations of pain.
The ALJ did not err in pointing out that Plaintiff received only conservative care for her physical
Plaintiff argues that the ALJ failed to consider whether Plaintiff’s treatment was limited by
financial issues. Plaintiff, however, has provided no evidence that she was denied medical
treatment due to an inability to afford care. See Murphy v. Sullivan, 953 F.2d 383, 386-87 (8th
Cir. 1992) (rejecting claim of financial hardship in case where there was no evidence that claimant
had attempted to obtain low cost medical treatment or had been denied care because of inability to
The ALJ next noted that Plaintiff is planning to become a licensed “beautician, a job that
requires standing at least some of the time.” (Tr. 14.) The ALJ stated that Plaintiff’s goal of
becoming a beautician “is an indication that she feels capable of gainful employment in the field of
cosmetology.” (Tr. 13.) The ALJ also properly pointed out that Plaintiff left her last job due to
transportation issues rather than her alleged disability. (Tr. 13, 31.) Plaintiff testified that she
quit all of her previous jobs due to relocating or other issues unrelated to her alleged disability.
(Tr. 33-37.) See Johnson v. Astrue, 628 F.3d 991, 995-96 (8th Cir. 2011) (complaints of
disabling pain discredited by evidence that claimant never quit a job on account of her
The ALJ next stated that the objective medical evidence does not support a finding that
Plaintiff’s back pain is so severe that she is unable to work. (Tr. 14.) Although the ALJ may not
discount subjective complaints solely because they are not fully supported by the objective
medical evidence, the lack of supporting objective medical evidence may be considered as a factor
in evaluating the claimant=s credibility. See Curran-Kicksey v. Barnhart, 315 F.3d 964, 968 (8th
Cir. 2003). The ALJ noted that Plaintiff’s primary care physician, Dr. Stachecki, advised
Plaintiff to lose weight and prescribed pain medication, and that the pain medication was effective.
(Tr. 14, 350, 352.) The ALJ pointed out that orthopedist Dr. Harris examined Plaintiff in June
2011, and found Plaintiff had full range of motion, normal strength, normal stability, and a normal
neurovascular exam. (Tr. 14, 392.) Dr. Harris ordered an MRI of the lower back, which did not
reveal any significant pathology. (Tr. 14, 390, 389.) The ALJ properly noted that the objective
medical evidence did not support Plaintiff’s complaints of disabling back pain.
Plaintiff argues that the ALJ did not properly consider Plaintiff’s diagnosis of obesity.
Contrary to Plaintiff’s argument, the ALJ discussed Plaintiff’s obesity, and found it was a severe
impairment. (Tr. 11.) The ALJ noted Plaintiff’s testimony that she is unable to wear tennis
shoes and tolerate heat due to her weight gain. (Tr. 14.) The ALJ also acknowledged that Dr.
Stachecki counseled Plaintiff on the effect of her weight on her back pain, and indicated that her
edema is secondary to her weight. The ALJ did not err in discussing Plaintiff’s obesity when
summarizing the objective medical evidence.
With regard to Plaintiff’s mental impairments, the ALJ noted that Plaintiff’s mental health
treatment records were very limited. (Tr. 15.) Plaintiff was prescribed psychotropic medication
for anxiety by her primary care physician in St. Louis, Dr. Stachecki. Dr. Stachecki indicated that
Plaintiff “found great benefit” from Abilify. (Tr. 315.) On Plaintiff’s last visit with Dr.
Stachecki in January of 2011, Dr. Stachecki noted there was “no unusual anxiety or evidence of
depression” on examination. (Tr. 352.) The medical evidence does not support the presence of a
disabling mental impairment.
Finally, the ALJ discussed Plaintiff’s daily activities. The ALJ found that Plaintiff had
only mild restriction of her daily activities. (Tr. 16.) The ALJ noted that Plaintiff is able to live
independently with her husband, care for her personal needs, and keep house. The ALJ further
stated that Plaintiff’s “lifestyle is consistent with an individual who can maintain regular
employment.” (Tr. 16.) Significant daily activities may be inconsistent with claims of disabling
pain. See Haley v. Massanari, 258 F.3d 742, 748 (8th Cir. 2001). Plaintiff argues that that the
ALJ improperly discredited Plaintiff’s complaints based on her ability to perform ordinary life
activities. Plaintiff testified at the hearing that she was able to not only perform ordinary daily
activities, but also care for her four young nieces and nephews on a regular basis. (Tr. 46-47.)
The ALJ properly found that Plaintiff’s level of daily activities was one factor detracting from the
credibility of her allegations of disabling pain.
In sum, the ALJ set out numerous inconsistencies that detracted from the credibility of
Plaintiff’s subjective complaints in a manner consistent with and as required by Polaski. The
ALJ’s determination that Plaintiff’s subjective complaints were not fully credible is supported by
good reasons and substantial evidence in the record as a whole, therefore, this Court must defer to
the ALJ’s credibility determination. Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005).
Residual Functional Capacity
Plaintiff next argues that the ALJ’s RFC determination is not supported by substantial
evidence. The ALJ made the following determination with regard to plaintiff=s RFC:
After careful consideration of the entire record, I find that, through the date last insured, the
claimant had the residual functional capacity to perform sedentary work as defined in 20
CFR404.1567(a) except that she is limited to unskilled work, she requires a sit/stand option
every 45 minutes while remaining on task, and she can only have occasional interaction
with the public.
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, as discussed above. The ALJ then cited
medical evidence upon which he was relying. The ALJ noted that Plaintiff’s MRI of the lumbar
spine was normal. (Tr. 390.) The ALJ pointed out that Dr. Harris found upon examination that
Plaintiff had good strength, full motor and sensory function, and full range of motion. (Tr. 391.)
The ALJ also discussed the Physical Residual Functional Capacity Questionnaire completed by
Dr. Harris on August 11, 2011. (Tr. 241-44.) He noted clinical findings of pitting edema of the
left ankle, tenderness to palpation of the lateral side of the left leg, and positive straight leg raise.
(Tr. 241.) The ALJ noted that Dr. Harris found that Plaintiff was capable of performing work
activities generally consistent with sedentary work, with a sit/stand option. (Tr. 15, 242-44.)
This finding supports the ALJ’s physical RFC determination.
The ALJ acknowledged that Dr. Harris also found that Plaintiff could sit and stand/walk a
total of less than eight hours per day, and that Plaintiff would be absent from work about three days
a month. The ALJ found that this portion of Dr. Harris’ opinion was unsupported by the record.
The ALJ pointed out that Dr. Harris’ findings were based on only one visit. The ALJ further
noted that the imaging of Plaintiff’s spine was normal, and that Plaintiff left her past jobs for
reasons other than her alleged disability. The ALJ provided sufficient reasons for not
incorporating all the limitations found by Dr. Harris.
Plaintiff contends that the ALJ failed to properly consider Plaintiff’s obesity, along with
the fatigue she experiences either as a result of her obesity or as a side effect from her medications.
The ALJ, however, considered Plaintiff’s obesity and specifically stated that Plaintiff’s “obesity
has been taken into account in the limitations assessed and the determination that the claimant is
limited to less than sedentary work activity.” (Tr. 14.) The ALJ found Plaintiff’s obesity was a
severe impairment and, as a result of Plaintiff’s obesity, low back pain, and edema, limited
Plaintiff to sedentary work with a sit/stand option. Plaintiff has failed to establish the presence of
any greater limitations resulting from Plaintiff’s obesity or fatigue.
In sum, the ALJ’s RFC determination is supported by substantial evidence on the
record as whole. The ALJ’s determination that Plaintiff is capable of performing a limited range
of sedentary work is supported by the medical evidence. With regard to Plaintiff’s mental RFC,
The ALJ credited Plaintiff’s testimony regarding memory issues and a fear of being around crowds
in limiting her to unskilled work, and only occasional interaction with the public. The record does
not support the presence of any greater limitations. The ALJ concluded, with the assistance of a
vocational expert, that Plaintiff could perform other jobs with this RFC, such as table worker and
surveillance system monitor. (Tr. 17, 229.)
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 during the relevant period. Accordingly, Judgment will be entered separately in favor
of defendant in accordance with this Memorandum.
UNITED STATES MAGISTRATE JUDGE
Dated this 29th day of September, 2014.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?