Orf v. Colvin
MEMORANDUM AND ORDER re: 12 SOCIAL SECURITY BRIEF filed by Plaintiff Laurie Orf ; For the reasons discussed above, the Court finds that the Commissioner's decision is supported by substantial evidence in the record as a whole. Accordingly, IT IS HEREBY ORDERED that the relief sought by plaintiff in her brief in support of complaint [Doc. # 12 ] is denied.. Signed by District Judge Carol E. Jackson on 9/2/14. (KKS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN, Commissioner
of Social Security,
Case No. 4:13-CV-1190 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court for review of an adverse ruling by the Social
I. Procedural History
On October 8, 2010, plaintiff Laurie Orf filed an application for a period of
disability and disability insurance benefits under Title II of the Social Security Act, 42
U.S.C. §§ 401 et. seq. (Tr. 122-123). The application alleged that disability began on
October 4, 2008. Plaintiff subsequently amended her alleged onset date to February
10, 2009. (Tr. 124). After the application was denied on initial consideration (Tr. 7377), plaintiff requested a hearing from an Administrative Law Judge (ALJ). See Tr. 8085 (acknowledging request for hearing).
Plaintiff and counsel appeared for a hearing on April 11, 2012. (Tr. 34-64). The
ALJ issued a decision on June 11, 2012 denying plaintiff’s application (Tr. 17-28), and
the Appeals Council denied plaintiff’s request for review on April 19, 2013. (Tr. 1-5).
Accordingly, this decision stands as the Commissioner’s final decision.
II. Evidence Before the ALJ
A. Disability Application Documents
Plaintiff’s Disability Report listed her disabling conditions as “breaks in left foot,”
arthritis, and depression. (Tr. 167). Plaintiff’s medications included Citalopram1 and
Vicodin.2 (Tr. 170). She listed her previous jobs as grocery stocker and landscaper.
(Tr. 168). In her Disability Report on Appeal, plaintiff stated that her foot pain became
worse on January 13, 2011 and that she is only able to walk short distances. (Tr. 174175). She reported that migraines can sometimes keep her in bed for three consecutive
days and that she has crying spells that can last for “hours.” (Tr. 179).
Plaintiff’s Function Report states that she lives in a house with her family. She
reported that she typically remains in bed every day or sits on the couch with her left
foot elevated. Plaintiff stated that she stays in a room with no light or noise, she is
always tired, sleeps most of the day, and takes medication twice per day for
headaches. (Tr. 155). Plaintiff reported that she is unable to walk without crutches,
cannot drive, cook or perform household chores, and requires assistance when washing
her hair. (Tr. 156-157). Plaintiff stated that she grocery shops and attends church
once a week. (Tr. 158-159). Plaintiff reported that she is able to pay bills, count
change, handle a savings account, use a checkbook, dress herself, bathe, shave, feed
herself, and use the toilet without difficulty. (Tr. 158). Plaintiff listed her hobbies as
sewing, reading, and crossword puzzles. (Tr. 159).
Plaintiff reported that she has difficulties lifting, squatting, bending, reaching,
walking, kneeling, stair climbing, seeing, completing tasks, and remembering. (Tr.
Citalopram is used to treat depression. http://www.nlm.nih.gov/medlineplus/
druginfo/meds/a699001.html (last visited June 6, 2014).
Vicodin is a narcotic analgesic indicated for relief of moderate to moderately
severe pain. Dependence or tolerance may occur. See Phys. Desk. Ref. 530-31 (60th
160). Plaintiff stated that she does not handle stress well, does not like changes in
routine, and that she once attempted to commit suicide. (Tr. 161). Plaintiff reported
that she has blurry vision from her migraines and is often depressed. (Tr. 162).
B. Hearing on April 11, 2012
At the time of the hearing, plaintiff was 49 years old. She was 5'7" tall and
weighed 250 pounds. (Tr. 40-41). Plaintiff completed the twelfth grade and lived with
her fiancé and two children, ages 23 and 18. (Tr. 53). Plaintiff testified that she has
a driver’s license, but does not drive because she experiences dizzy spells and blacks
out one to two times per week. (Tr. 41).
Plaintiff stated that she was last employed in December 2010 when she worked
as a shelf stocker at a grocery store, but she later remembered that she worked for one
week in 2011 as a shelf stocker at Dollar General and for one day as a shelf stocker at
a craft store. (Tr. 42-43). Prior to those jobs, plaintiff worked at Wal-Mart, also as a
shelf stocker, for “a couple of years” and as a landscaper at a golf course for three
years. (Tr. 43-44). Plaintiff testified that she left those jobs because of foot pain. (Tr.
42-45). Plaintiff stated that she also worked as a substitute cook at a school district
for two years, but that she quit because she wanted full-time work. (Tr. 45). Plaintiff
also testified that she operated a daycare in her home for two children in 2002. (Tr.
46). Plaintiff claimed that she is no longer able to work because she cannot walk for
more than 10 or 15 minutes at one time. (Tr. 46-47).
Plaintiff stated that she requires a cane to ambulate and that she cannot sit for
longer than 15 minutes if her foot is not elevated. (Tr. 46). Plaintiff stated that she
has undergone numerous surgeries on her left foot due to fractures, but that her doctor
cannot determine the cause of the breaks. (Tr. 47-48). At the time of hearing, plaintiff
was not seeing a doctor because she could not afford health insurance and she was
taking ibuprofen for her pain. Plaintiff stated that she elevates her foot at least twice
each day for about an hour, which helps to alleviate pain. (Tr. 49).
Plaintiff stated that she suffers from depression and that in August of 2010 she
attempted suicide because she felt bad for accidentally closing her truck door on her
grandson. The child was not hospitalized or injured. At the time of the hearing, plaintiff
was not seeing a doctor for her depression. (Tr. 50). Plaintiff stated that she has
difficulties sleeping and has “crying spells” for at least one hour each week. Plaintiff
stated that at least two days a week she feels depressed and stays in bed for six to
eight hours. (Tr. 57-58). However, plaintiff stated that she has not contemplated
suicide since her attempt in August 2010. (Tr. 57).
Plaintiff also testified to having trouble with memory and concentration. (Tr. 51).
Plaintiff explained that she reads approximately five books per year, but that she has
difficulty concentrating on the story. (Tr. 52). Plaintiff stated that when she talks to
people she tends to stutter and her blood pressure rises. (Tr. 51).
that, other than reading, she has no hobbies and she is unable to leave the house alone
because she is forgetful. Plaintiff explained that the last time she went to the grocery
store, she forgot where her truck was and had to call her fiancé for help. (Tr. 53).
Plaintiff testified that she underwent surgery on her left foot for the first time on
February 20, 2009. For six months after the surgery, plaintiff relied on a wheelchair and
crutches to ambulate. Plaintiff testified that in May 2009 she underwent a second
surgery to remove a “pin” from her left foot. (Tr. 54). Plaintiff had additional surgeries
on her left foot on December 2009, September 2010, and May 2011. (Tr. 54-55).
Plaintiff testified that she suffers from severe pain three to four times a week, which
requires her to take ibuprofen and elevate her left foot. Plaintiff testified that at least
once a week she has to stay in bed because she is unable to walk. (Tr. 56).
Carma A. Mitchell, M.S., a vocational expert, provided testimony regarding
plaintiff’s past work and employment opportunities. (Tr. 89, 90, 58-63). Ms. Mitchell
listed plaintiff’s vocational history and classified each position. Ms. Mitchell listed laborer
of stores as unskilled, medium work, with a Specific Vocational Preparation (SVP)3 of
2;4 grounds caretaker as semi-skilled, medium work, with an SVP of 3;5 child monitor
(babysitting) as semi-skilled, medium work, with an SVP of 3; and school cook as
skilled, light to medium work, with an SVP of 6.6 Ms. Mitchell stated that plaintiff does
not have any skills which are transferrable to the sedentary level. (Tr. 60).
The ALJ asked Ms. Mitchell whether a hypothetical individual of plaintiff’s age,
education, and past work experience, who is capable of performing at a sedentary
exertional level, but who can only perform semi-skilled work or less, can never climb
ramps, stairs, ladders, or scaffolds, can occasionally balance, stoop, kneel, crouch, or
crawl, and who is required to avoid concentrated exposure to hazards, such as
unprotected heights or machinery, could perform plaintiff’s past work. Ms. Mitchell
answered in the negative. (Tr. 60-61).
The ALJ then asked whether such a hypothetical individual would be able to
perform any other work in the regional or national economies. Ms. Mitchell answered
in the affirmative and testified that plaintiff could perform certain unskilled, sedentary
The SVP level listed for each occupation in the Dictionary of Occupational Titles
(DOT) connotes the time needed to learn the techniques, acquire the information, and
develop the facility needed for average work performance. Hulsey v. Astrue, 622 F.3d
917, 923 (8th Cir. 2010).
SVP level 2 covers occupations that require “anything beyond short
demonstration up to and including 30 days.” 20 C.F.R. § 656.3.
SVP level 3 covers occupations that require over 30 days and up to and
including 3 months. Id.
SVP level 6 covers occupations that require over 1 year up to an including 2
jobs that have an SVP of 2, including: order clerk (of which there are 450 jobs within
the state of Missouri); charge account clerk (of which there are 320 jobs within the
state of Missouri), and call-out operator (of which there are 270 jobs within the state
of Missouri). (Tr. 61).
The ALJ then asked whether the same hypothetical individual would be able to
perform any of those jobs if that individual was required to elevate her leg up to 36
inches from the ground for one hour, two times per day. Ms. Mitchell answered in the
negative and testified that there would be no other work in the regional or national
economies that such an individual could perform. (Tr. 62). Ms. Mitchell confirmed that
her opinions were consistent with the Dictionary of Occupational Titles (DOT).
Ms. Mitchell also testified that if the individual in the first hypothetical was unable
to maintain persistence, concentration or pace for over 25 percent of the day or work
week, such an individual would not be able to perform any job in the regional or
national economies. (Tr. 62-63).
C. Medical Evidence
On February 10, 2009, plaintiff saw John M. Dailey, DPM, MBA, FACFAOM, at the
Missouri Foot and Ankle Institute to establish care regarding her left foot. (Tr. 480485). Plaintiff underwent a complete lower extremity physical examination. Plaintiff
complained of multiple structural deformities with fractures, hammer toe, and
discomfort along her medial column. Radiographs showed previous fracture sites in her
left foot, as well as non-union and a deformed medial column. Plaintiff was instructed
to obtain an MRI and vascular testing. Dr. Dailey recommended surgery after the MRI
revealed several metatarsal fractures in various stages of healing and the beginning of
Freiberg’s Disease at the third metatarsal head. No issues were found with her right
foot. (Tr. 1397).
On February 12, 2009, plaintiff saw her primary care physician, Maryam Naemi,
D.O., for a pre-operative examination in order to clear her for left foot surgery. (Tr.
212-218). Plaintiff underwent lab work and an EKG. (Tr. 246-254). Plaintiff’s problem
list included hypothyroidism, carpal tunnel syndrome, migraine, and depression with
anxiety. (Tr. 213-214).
On February 17, 2009, plaintiff returned to Dr. Dailey. Treatment notes state
that the cause of plaintiff’s fractures was unclear because testing revealed normal
findings. (Tr. 475). On February 20, 2009, plaintiff underwent surgery on her left foot,
which included correction of a bunion and fractured first metatarsal bone, resection of
a non-union fracture, and insertion of a bone graft and external fixator. Plaintiff was
placed in a cast after the procedure. (Tr. 471, 477, 542-543, 587-588, 611-613).
Plaintiff’s postoperative diagnoses included hallux valgus; metatarsus varus deformity;
deformed first toe; fractured first metatarsal base with compression and shortening of
the metatarsal; nonunion at the first metatarsal base; and contracted digits 2, 3, 4,
and 5. (Tr. 611).
On February 23, 2009, plaintiff saw Dr. Dailey for her first postoperative visit.
Removal of the cast revealed no signs of infection, no signs of dehiscence, minimal
pain, minimal edema, and good results. Plaintiff was told to limit her activities and
apply ice. (Tr. 470). On March 2, 2009, plaintiff presented for a second postoperative
visit. Dr. Dailey expressed concern with edema and wrote that “it is obvious that she
is either not using the ice or not propping [the left foot] up.” Plaintiff did not report any
pain. Dr. Dailey instructed plaintiff to use an electrical bone stimulator to help with the
healing of her bone graft and to prevent non-union. (Tr. 467-468).
On March 9, 2009, plaintiff presented for a third postoperative visit. Plaintiff
denied pain and had decreased edema. Dr. Dailey wrote that plaintiff was doing well
overall with adequate surgical results. She was instructed to use the bone stimulator
every day for a minimum of three hours per day. (Tr. 466). On March 16, 2009, Dr.
Dailey noted that plaintiff was non-compliant with her post-surgery instructions to keep
weight off her left foot. Dr. Dailey noted increased swelling and instructed plaintiff to
keep her leg elevated. (Tr. 465). On March 17, 2009, Dr. Dailey completed a form for
plaintiff’s employer, stating that plaintiff would be unable to return to work until April
20, 2009. (Tr. 366-367).
On March 30, 2009, plaintiff presented to Dr. Dailey for a follow-up appointment.
Dr. Dailey wrote that some of her lesser digits were still somewhat contracted, but that
he would address that issue after plaintiff was healed from her surgery. Dr. Dailey
instructed plaintiff to stay non-weight-bearing, apply ice, and continue with the bone
stimulator. (Tr. 463). On the same day,
Dr. Dailey completed a form, entitled
“Physician’s Statement of Functionality.” (Tr. 363-364). Dr. Dailey listed plaintiff’s
diagnosis as “fracture with nonunion” and plaintiff’s symptoms as “pain with deformity.”
Dr. Dailey reported that plaintiff was not taking any prescription medications and that
she was expected to return to work on May 20, 2009. Dr. Dailey wrote that plaintiff
could sit for 5 hours per day, but that she could not stand or walk in a general
workplace environment. Dr. Dailey described plaintiff’s progress as “improved.”
On April 9, 2009 and April 20, 2009, plaintiff saw Dr. Dailey for additional
postoperative follow-up appointments. Dr. Dailey noted that plaintiff was doing well
with good surgical results. He wrote that once plaintiff showed adequate bone callous
formation, he would allow her to start bearing weight and remove the external fixator.
Although no infection was detected at the surgical site, Dr. Dailey prescribed two
antibiotics. (Tr. 462). Dr. Dailey completed a form for plaintiff’s employer, instructing
that plaintiff was “100% non-weight-bearing.” Plaintiff was restricted to “limited
standing” and work days lasting no longer than four hours for four days per week. (Tr.
360, 362). On April 29, 2009, Dr. Dailey noted that plaintiff’s external fixator was
loose, which showed that she was not following his instructions that she be non-weightbearing. (Tr. 459).
On May 4, 2009, Dr. Dailey told plaintiff that he wanted to perform surgery on
her left foot in order to remove the external fixator and to correct the “contracted
lesser digits.” (Tr. 457). This surgery was performed on May 8, 2009. (Tr. 452-453,
578). Plaintiff’s postoperative diagnosis was listed as a fractured first metatarsal with
nonunion; abscess fixator site medial column; external hardware with multiplane uses
medial column; contracted and deformed digits 2, 3, 4, and 5; and hammer toes 2, 3,
5, and 5. (Tr. 608-610).
On May 11, 2009, plaintiff returned to Dr. Daily for a postoperative visit. No
complications or issues were noted. (Tr. 451). On May 26, 2009, plaintiff presented to
Dr. Dailey for removal of the sutures and superficial fixators. Dr. Dailey instructed
plaintiff to continue non-weight-bearing and use the bone stimulator. (Tr. 449-450).
On May 28, 2009, plaintiff reported minimal pain and edema. Dr. Dailey placed plaintiff
on a non-weight-bearing restriction (Tr. 448).
On June 8, 2009, Dr. Dailey noted “good surgical results” and administered
hydrotherapy. (Tr. 447). Dr. Dailey wrote that plaintiff should be excused from work
from June 12, 2009 to June 15, 2009. (Tr. 628).
On June 15, 2009, Dr. Dailey
instructed plaintiff to begin physical therapy and continue with hydrotherapy. Dr. Dailey
wrote that he was gradually trying to get her to bear weight through use of a cam
walker boot. Plaintiff reported no pain or edema and she was ambulating well. (Tr.
446). On June 16 and 19, 2009, Dr. Dailey completed forms for plaintiff’s employer
stating that she could not work more than four to six hours per day for approximately
two to four months. (Tr. 356-358).
Plaintiff participated in physical therapy on June 16, 17, 18, 19, 22, 23, 24, and
25, 2009. (Tr. 438-446). At the end of the therapy, plaintiff was still in the cam walker
boot and using the bone stimulator, but overall she was described to be doing very well
and was healing with good results. (Tr. 438). On July 16, 2009, plaintiff saw Dr. Dailey
for a follow-up appointment. Plaintiff reported slight discomfort at the second toe of
her left foot, but otherwise reported no pain. Dr. Dailey wrote that plaintiff had minimal
edema, was back to work at Wal-mart and was doing “exceptionally well.” Dr. Dailey
told plaintiff that she could slightly increase her activities. (Tr. 437).
On September 15, 2009, plaintiff received custom orthotics from the Foot and
Ankle Institute. (Tr. 361). On the same day, plaintiff reported to Dr. Dailey that she
was 100% pain free. Dr. Dailey wrote that plaintiff was sill using the bone stimulator,
that the graft site appeared to be healed, that she was doing well overall, was happy,
and had returned to work and most activities. (Tr. 436). On September 21, 2009,
plaintiff saw Dr. Dailey for a sharp pain in her left foot. Dr. Dailey noted that up until
this point, plaintiff had been pain free. Plaintiff was placed in a high top cam walker
cast boot and told to use the bone stimulator. (Tr. 434-435).
On September 22, 2009, plaintiff returned to Dr. Dailey for excision of an
infected ingrown toenail on her left foot. (Tr. 431-432, 544-546, 614). On September
23, 2009, plaintiff saw Dr. Dailey for a follow-up regarding her toe surgery. Dr. Dailey
wrote that the nail surgical site was healing nicely with good results. (Tr. 428, 430).
On September 24, 2009, results from the three phase bone scan of the second and
third metatarsals of plaintiff’s left foot revealed on-going healing fractures. Dr. Dailey
wrote that he would continue to treat her with conservative fracture care. (Tr. 429,
On October 1, 2009, plaintiff saw Dr. Dailey for postoperative care and to review
the MRI results, which confirmed stress fractures involving her second and third
metatarsals. Plaintiff was kept in the cam walker boot to immobilize and stabilize the
fracture sites. She was instructed to continue with the bone stimulator. Dr. Dailey
noted that he could not pinpoint an underlying reason as to why she continued to
experience fractures. (Tr. 703). Plaintiff was prescribed 800mg ibuprofen/Motrin tablets
for pain. (Tr. 702).
On October 5, 2009, October 15, 2009 and November 5, 2009, plaintiff saw Dr.
Dailey for follow-up appointments regarding multiple stress fractures in her left foot.
(Tr. 422-426). Dr. Dailey wrote that he could not determine the cause of the fractures
and did not know why her bone graft dissolved. Plaintiff was instructed to avoid weight
bearing activity and to use a cam walker boot. (Tr. 345-346, 370). Plaintiff was given
a prescription for Vicodin on October 5, 2009. (Tr. 426). On November 24, 2009,
plaintiff saw Dr. Dailey for a follow-up appointment. Treatment notes state that the
cause of plaintiff’s fractures was still unknown. Dr. Dailey wrote that plaintiff had
adequate bone callous formation and that she was improving despite her discomfort.
Dr. Dailey ordered bone density testing. (Tr. 420, 549, 555).
On December 1, 2009, plaintiff saw Dr. Dailey for review of her bone density
results and to discuss a treatment plan. Dr. Dailey wrote that her bone density results
were within normal limits, there were no abnormalities noted, and she was negative for
osteopenia and osteoporosis. (Tr. 839). Dr. Dailey recommended that she undergo
surgery to realign her left foot medial column. (Tr. 416). On December 9, 2009,
plaintiff saw Dr. Dailey for a preoperative consultation. Dr. Dailey noted that “[e]ven
though we have done a number of things to this left foot, it continues to break down
and the previous bone graft at the base of the first metatarsal is completely
disintegrated.” (Tr. 412).
On December 11, 2009, plaintiff underwent surgery for multiple structural
deformities, including non-union, a fractured metatarsal base with destruction of a bone
graft and lesser metatarsal fractures with hammer toes in her left foot. (Tr. 409, 568,
605-607). Dr. Dailey instructed that plaintiff not work for eight to nine weeks postsurgery. (Tr. 415). Plaintiff’s postoperative diagnosis was listed as deformed first
metatarsal; hallux valgus deformity; metatarsus primus varus deformity; destroyed
and disintegrated old bone graft, medial column; nonunion first metasarsal; fractured
first metatarsal; deformed first toe; and hammer toes 2-3-4-5. (Tr. 605).
On December 14, 23, and 31, 2009, plaintiff saw Dr. Dailey for postoperative
care. Removal of the cast revealed no signs of infection, minimal pain, minimal edema,
and “good results.” (Tr. 405-408). Plaintiff was instructed to take 800mg of
ibuprofen/Motrin three times a day and to remain non-weight-bearing. (Tr. 684). On
January 5, 2010, plaintiff presented to Dr. Dailey stating that she bumped her left
forefoot on a bathroom cabinet. Dr. Dailey found that there was minimal edema, but
otherwise, plaintiff was clinically uninjured by the trauma. (Tr. 404, 496).
On January 14 and 25, February 1 and 15, and March 1 and 22, 2010, plaintiff
saw Dr. Dailey for postoperative care. Plaintiff was without pain and no issues or
complications were noted. Treatment notes consistently stated that plaintiff was healing
nicely. She was instructed to stay non-weight-bearing and ice the surgical area. (Tr.
395-397, 399-400, 402). Plaintiff was instructed to take 800mg tablets of
ibuprofen/Motrin three times daily. (Tr. 678). X-ray results from February 15, 2010 and
March 22, 2010 revealed good alignment, fixation, and healing, with no other osseous
abnormalities. (Tr. 493, 495).
On April 7, 2010, plaintiff saw Dr. Dailey for postoperative care. Dr. Dailey wrote
that plaintiff had no complaints of edema or pain and that she was making “good
progress.” Plaintiff was instructed to stay in her cam walker boot and slowly increase
her activities. (Tr. 394). On February 10, 2010, Dr. Dailey completed a form for
plaintiff’s employer, stating that plaintiff would be unable to work for no more than four
hours per day for five days per week from May 1, 2010 to July 1, 2010. (Tr. 340-341).
On April 28, 2010, plaintiff saw Dr. Dailey with complaints of pain in her left
Radiographs revealed that she was healing adequately from her bone graft
surgery. Dr. Dailey noted that she might have a small fracture, but could not be sure.
Dr. Dailey instructed that plaintiff seek additional physical therapy. (Tr. 393, 492).
On May 3, 2010, plaintiff began her first of nine sessions of physical therapy at
the Foot and Ankle Institute. (Tr. 392). Plaintiff was described to have edema, cicatrix,
tenosynovitis, inflammation of left forefoot area, postoperative left forefoot
reconstructive surgery, and history of multiple fractures and non-union. Plaintiff
returned for physical therapy sessions on May 4-7, 10, and 12-14, 2010. (Tr. 383-392).
On her last session, Dr. Dailey wrote that plaintiff was pain free, her x-rays looked
good, and she was improving with conservative physical therapy. However, Dr. Dailey
noted that “based on her past this can change at any time.” (Tr. 383). On the same
date, Dr. Dailey completed a form for plaintiff’s employer, stating that she would be
unable to work for no more than three or four hours per day for five days per week
until August 15, 2010 and that it would be necessary for plaintiff to be absent from
work during flare-ups. (Tr. 343-344).
On May 17, 2010, plaintiff saw Dr. Naemi for a follow-up regarding her
hypertension. Plaintiff reported constant fatigue and drastic mood swings. Dr. Naemi
instructed plaintiff to continue her hypertension medication, decrease sodium and sugar
intake, exercise, and increase Vitamin D intake.
Plaintiff was referred to a
gastroenterologist for chest pain. (Tr. 207-208). On May 20, 2010, plaintiff underwent
abdomen testing due to complaints of right upper quadrant pain. Results revealed
sludge in the gallbladder without stones and two cysts in the liver. (Tr. 287).
On May 27, 2010, plaintiff saw Dr. Dailey for a follow-up appointment, an x-ray
examination, and a bone scan. (Tr. 382, 490, 832-833). Plaintiff complained of some
pain at her metatarsophalangeal joints in her left foot. Dr. Dailey attributed her pain
to arthritis and wrote that he did not know why plaintiff suffered from spontaneous
fractures, stating that all “testing has found she is healthy and I do not really have an
explanation for the chronic fractures. Presently everything is healed[.]” (Tr. 382). Dr.
Daily instructed plaintiff to continue wearing orthotics and refrain from heavy activity.
On June 7, 2010, plaintiff underwent a nuclear medicine hepatobiliary scan to
evaluate potential gallbladder dysfunction. The results were within normal limits and
no obstruction or other abnormality was revealed. (Tr. 266-267, 286). On June 18,
2010, Dr. Dailey wrote a note, stating that plaintiff can return to work on June 21,
2010 on “fully duty.” (Tr. 368). On June 24, 2010, plaintiff saw Dr. Dailey for a followup appointment. Treatment notes state that plaintiff is “back in regular shoes and back
to most normal activities . . . and is still staying pain free.” (Tr. 353). Dr. Dailey wrote
that plaintiff’s left foot was “healing nicely and staying healed.” (Tr. 352-353). Dr.
Dailey instructed plaintiff to slowly increase her activities and stay in a supportive shoe.
On August 11, 2010, plaintiff presented to Dr. Naemi with reports of increased
depression and a desire to hurt herself. Plaintiff explained that she “took a bunch of
ibuprofen” because she was stressed and wanted to commit suicide. Plaintiff stated that
she accidently shut her truck door on her 15-month old grandson, which upset her.
Plaintiff complained of nausea and tingling in the right side of her mouth. Plaintiff
reported that she had not been taking her hypertension medication for a week. Dr.
Naemi instructed plaintiff to obtain an immediate mental evaluation. (Tr. 204-205).
At the instruction of Dr. Naemi, plaintiff presented to St. Joseph’s Hospital West
for her attempted suicide and complaints of a severe migraine. Plaintiff underwent a
physical exam and was admitted into the DePaul Health Center until August 13, 2010.
At discharge, plaintiff’s mental condition improved and she “was able to recognize her
situation as being an accident and that her grandchild was not seriously harmed.” (Tr.
On August 26, 2010, plaintiff saw Dr. Dailey with complaints of left foot pain that
she reported had been ongoing for two to three weeks. (Tr. 380). X-ray results
revealed a slight gap in her bone graft and a loose screw in her compression plate. (Tr.
489). Radiographs did not reveal a fracture or dislocation. Dr. Dailey recommended
surgery and instructed that she not work until October 10, 2010; however, he
described her prognosis as “excellent.” (Tr. 335, 380). The surgery was performed on
September 3, 2010 for non-union repair, removal of a deep buried pin, insertion of a
bone graft, and application of a bone plate. (Tr. 336, 375, 558-560).
On September 8, 15, and 22, 2010, plaintiff returned to Dr. Dailey for postoperative follow-up appointments and x-ray examinations. (Tr. 372-374, 487-488).
Treatment notes state that plaintiff was “doing very well” with no pain, no edema, and
no signs of infection. Dr. Dailey instructed plaintiff to remain in the cam walker boot,
use crutches, and limit her activities. (Tr. 375). Plaintiff was administered hydrotherapy
physical therapy for ten minutes on September 22. (Tr. 647).
On October 6, 2010, plaintiff saw Dr. Dailey for a post-operative follow-up
appointment. (Tr. 369, 486). An X-ray revealed that the surgery site was healing
nicely with some bone callous formation, arthritic changes and a possible bone cyst, but
no other osseous abnormalities. (Tr. 486). Treatment notes state that plaintiff was still
using the cam walker boot, crutches and the bone stimulator, that she was 100%
asymptomatic along the medial column where her surgery took place, and that no
edema was present. Although plaintiff complained of some discomfort at the metatarsal
head, Dr. Dailey wrote that plaintiff was healing “quite nicely” and that he did not have
an explanation for the discomfort, other than the fact that there is arthritis at the
metatarsophalangeal joints. Dr. Dailey suggested that she stay in the cam walker boot
and continue with the bone stimulator. (Tr. 369).
On October 9, 2010, plaintiff returned to Dr. Dailey for a follow-up appointment
with complaints of discomfort at her metatarsal head two, three, and four. Dr. Dailey
instructed plaintiff to stay in the cam walker boot and continue with the bone
stimulator. (Tr. 646). On October 25, 2010, plaintiff returned to Dr. Dailey for a followup appointment. Dr. Dailey wrote that plaintiff’s surgery site was pain free and without
edema. However, plaintiff complained of pain in the lesser metatarsophalangeal joint
area. (Tr. 644). Dr. Dailey ordered a triphasic bone scan. (Tr. 642).
On November 2, 2010, plaintiff returned to Dr. Dailey for a follow-up
appointment with complaints of pain in the left forefoot area. The triphasic bone scan
revealed that plaintiff’s previous fractures and metatarsals two and three were
completely healed and that the surgery site involving the first metatarsal base was
healing nicely. However, the scan revealed a new stress fracture of the fourth
metatarsal, which explained plaintiff’s pain. Dr. Dailey wrote that he was confused as
to how she developed another fracture while she was in a cam walker boot. Dr. Dailey
advised her to reposition the bone stimulator. (Tr. 641).
On February 8, 2011, Joseph M. Long, Ph.D., submitted a report of his
psychological examination of plaintiff. (Tr. 1155-1157). Dr. Long interviewed plaintiff
and found no evidence of gross impairment of psychological functioning due to
hallucinations, delusional ideation, or extreme liability. Dr. Long noted that her only
formal mental health treatment occurred in August of 2010 when she spent three days
in a Psych Unit after she attempted suicide.
Plaintiff denied any current suicidal
ideation and reported that she did not cry as often. Plaintiff told Dr. Long that she “tries
to keep a positive attitude but starts to feel overwhelmed when she thinks about her
financial problems and wants to stay in bed.” (Tr. 1156). Plaintiff described her energy
level as “mediocre.” (Tr. 1157). Dr. Long expressed his opinion that plaintiff suffered
from moderate severity anxiety disorder and mild severity depressive disorder. (Tr.
1157). Dr. Long wrote that plaintiff’s ability to understand and remember instructions
appeared to be intact, her ability to sustain concentration and persist with tasks
appeared to be no more than moderately impaired, and her social and adaptive
functioning appeared to be barely in the moderate range of impairment. (Tr. 1157).
On February 16, 2011, Sherry Bassi, Ph.D. completed a psychiatric review
technique. (Tr. 1162-1173). Dr. Bassi identified plaintiff’s impairments as non-severe
affective disorders and non-severe anxiety-related disorders. Dr. Bassi opined that
plaintiff had no repeated episodes of decompensation and only mild limitations in
activities of daily living, maintaining social functioning, and maintaining concentration,
persistence, and pace.
On February 17, 2011, Dr. Dailey completed a physical medical source
statement. (Tr. 1158-1160). Dr. Dailey reported that plaintiff can occasionally lift or
carry up to 20 pounds; can sit for a total of 8 hours in an 8-hour workday; and is
unlimited in her abilities to reach, handle, finger, feel, see, speak, and hear. Dr. Dailey
reported that plaintiff can occasionally stoop, kneel, crouch, or crawl, but cannot climb
or balance. Dr. Dailey wrote that plaintiff’s chronic foot pain and deformities prevent
her from performing activities that involve standing and walking and that she requires
an assistive device for ambulation.
On February 22, 2011, Jason Lawrence, a single decisionmaker7 (SDM),
completed a Physical Residual Functional Capacity Assessment (PRFCA). (Tr. 65-70).
Mr. Lawrence reported that plaintiff could occasionally lift and/or carry 20 pounds;
frequently lift and/or carry 10 pounds; stand and/or walk for a total of at least 2 hours
in an 8-hour workday; sit for a total of about 6 hours in an 8-hour workday; push
and/or pull with limitations in the lower extremities; never climb or balance, and
occasionally stoop, kneel, crouch, or crawl. Mr. Lawrence did not report any
manipulative, visual, or communicative limitations. Mr. Lawrence reported that plaintiff
must avoid concentrated exposure to hazards, such as machinery and heights.
On May 13, 2011, plaintiff underwent surgery on her left foot because of a
fractured toe, loose hardware, and an abscess. (Tr. 1203). The surgery included a
hammer toe arthroplasty, an I&D abscess, and removal of hardware. (Tr. 1204-1205).
On March 3, 2012, plaintiff presented to the emergency room at Mercy Hospital
with complaints of left foot pain. (Tr. 1588-1602).
Plaintiff’s diagnoses included
degenerative arthritis of the foot and history of foot surgery. Radiology results did not
reveal a fracture or dislocation.
Plaintiff was discharged with instructions to rest,
elevate and ice the extremity, apply ACE wrap as needed for swelling, use crutches as
needed for ambulation, and to take 800mg of ibuprofen three times per day or a
Percocet as needed for pain.
D. Additional Medical Evidence
Missouri is one of 20 states on which non-medical disability examiners are
authorized to make certain initial determinations without requiring a medical or
psychological consultant’s signature. See Office of the Inspector General, Audit Report
Single Decisionmaker Model – Authority to Make Certain Disability Determinations
without a Medical Consultant’s Signature. (Aug. 2013).
On December 12, 2012, plaintiff presented to Harry Visser, DPM at Mid-West
Podiatry for evaluation of chronic foot pain. (Doc. #12-1). Dr. Visser wrote that as a
consequence of her multiple left foot surgeries, plaintiff “has a very stiff and maligned
foot with associated chronic pain.” Dr. Visser expressed his opinion that although
further reconstruction could be considered, he doubted that it would benefit her in a
significant way. Dr. Visser wrote that plaintiff “is basically disabled.” He placed her on
“a Medrol Dosepak8 and a nonsteroidal to try to reduce some of the symptoms.
On January 16, 2013, plaintiff returned to Dr. Visser for a follow-up
appointment. (Doc. #12-1). Plaintiff reported that her pain was about the same and
that she recently heard and felt a “pop” in her left foot. Dr. Visser wrote that plaintiff
will consider left reconstruction after she obtains new insurance.
On February 8, 2013, Dr. Visser, completed a residual functional capacity form.
(Doc. #12-1). Dr. Visser reported that plaintiff suffers from general fatigue and
weakness, muscle spasm, tenderness in joints and/or feet, weight gain or loss, swelling
in extremities, difficulty walking, limitation in joint and/or feet movement, and impaired
sleep. Dr. Visser reported that plaintiff can only walk 100 feet without rest, sit
continuously for 15 minutes, stand continuously for 9 minutes, lift less than 10 pounds,
and carry less than 10 pounds. Dr. Visser opined that plaintiff would need to be absent
from work for more than 3 days each month.
III. The ALJ’s Decision
In the decision issued on June 11, 2012, the ALJ made the following findings:
Plaintiff meets the insured status requirements of the Social Security Act
through March 31, 2015.
Plaintiff has not engaged in substantial gainful activity since February 10,
2009, the alleged onset date.
Medrol is the brand name for methylprednisolone and is used to relieve
inflammation and to treat certain forms of arthritis.
Plaintiff has the following severe impairments: Residuals of foot surgeries,
anxiety, and depression.
Plaintiff does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments
in 20 C.F.R. Part 404, Subpart P, Appendix 1.
Plaintiff has the residual functional capacity to perform light work as
defined in 20 C.F.R. 404.1567(b) except that she will never be able to
climb ramps, stairs and scaffolding; she will only occasionally be able to
balance, stoop, kneel, crouch and crawl; she will need to avoid
concentrated exposure to hazards of unprotected heights and machinery;
and she will be limited to the performance of semi-skilled work.
Plaintiff is unable to perform any past relevant work.
Plaintiff was born on December 15, 1962 and was 46 years old, which is
defined as a younger individual age 18-49, on the alleged disability onset
Plaintiff has at least a high school education and is able to communicate
Transferability of job skills is not material to the determination of
disability because the Medical-Vocational Rules as a framework supports
a finding that plaintiff is “not disabled,” whether or not plaintiff has
transferable job skills.
Considering plaintiff’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that plaintiff can perform.
Plaintiff has not been under a disability, as defined in the Social Security
Act, from February 10, 2009, through the date of this decision.
IV. Legal Standard
To be eligible for SSI benefits, a claimant must prove that she is disabled.
Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). A child under the age of
eighteen will be declared disabled if she “has a medically determinable physical or
mental impairment, which results in marked and severe functional limitations, and
which can be expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(C).
determine whether a child claimant is disabled, the Commissioner employs a three-step
evaluation process. The Commissioner first determines whether the child is engaged
in substantial gainful activity. If the child is so engaged, she is not disabled. Second,
the Commissioner determines whether the child has a “severe impairment.” If the
child’s impairment is not severe, she is not disabled.
Finally, the Commissioner
determines whether the child’s impairment meets, medically equals, or functionally
equals the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix
If the child’s impairment is, medically equals, or functionally equals a listed
impairment, she is disabled under the Act. 20 C.F.R. § 416.924.
In determining functional equivalence, the Commissioner considers the child
claimant’s functioning in broad areas of functioning, or “domains.” The six domains
are: (i) acquiring and using information; (ii) attending and completing tasks; (iii)
interacting and relating with others; (iv) moving about and manipulating objects; (v)
caring for oneself; and (vi) health and physical well-being. 20 C.F.R. § 416.926a(b)(1).
For an impairment to functionally equal a listed disability, it must result in either
a marked limitation in two domains or an extreme limitation in one domain. 20 C.F.R.
§ 416.926a. The Commissioner will find a “marked” impairment in any domain when
the impairment(s) interferes seriously with the claimant’s ability to independently
initiate, sustain, or complete activities. A “marked” impairment is the equivalent of
functioning found on standardized testing with scores that are a least two, but less than
three, standard deviations below the mean. 20 C.F.R. § 416.923a(e)(2)(i).
“extreme” limitation is found in a domain when a claimant’s impairment interferes very
seriously with the ability to independently initiate, sustain, or complete activities. It
is the equivalent of functioning found on standardized testing with scores that are at
least three standard deviations below the mean. 20 C.F.R. § 416.926a(e)(3)(i).
The Court must affirm the Commissioner’s decision, “if the decision is not based
on legal error and if there is substantial evidence in the record as a whole to support
the conclusion that the claimant was not disabled.” Long v. Chater, 108 F.3d 185, 187
(8th Cir. 1997). “Substantial evidence is less than a preponderance, but enough so
that a reasonable mind might find it adequate to support the conclusion.” Estes v.
Barnhart, 275 F.3d 722, 724 (8th Cir. 2011) (quoting Johnson v. Apfel, 240 F.3d 1145,
1147 (8th Cir. 2011)). The Court may not reverse merely because the evidence could
support a contrary outcome. Id. at 724.
In determining whether the Commissioner’s decision is supported by substantial
evidence, the Court reviews the entire administrative record. See Stewart v. Sec. of
Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992).
The Court must
consider any evidence that detracts from the Commissioner’s decision. Warburton v.
Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999).
Where the Commissioner’s findings
represent one of two inconsistent conclusions that may reasonably be drawn from the
evidence, those findings must simply be supported by substantial evidence. Pearsall,
274 F.3d at 1217 (citing Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000)).
Plaintiff contends that the ALJ erred by (1) failing to properly consider her
subjective complaints; and (2) failing to properly consider Dr. Visser’s opinion. The
plaintiff further argues that the “Court should direct that this case be reviewed by SSA’s
medical staff as key medical evidence was added to the record since a State agency
medical consultant last reviewed this case.” [Doc. #12].
A. Plaintiff’s Credibility
An ALJ’s credibility findings must be supported by substantial evidence on the
record as a whole. Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). In Polaski v.
Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984), the Eighth Circuit articulated five factors
for evaluating pain and other subjective complaints: “(1) the claimant’s daily activities;
(2) the duration, frequency, and intensity of the pain; (3) precipitating and aggravating
factors; (4) dosage, effectiveness, and side effects of medication; [and] (5) functional
“The ALJ is not required to discuss methodically each Polaski consideration, so
long as he acknowledged and examined those considerations before discounting [a
claimant’s] subjective complaints.” Partee v. Astrue, 638 F.3d 860, 865 (8th Cir. 2011).
The determination of a plaintiff’s credibility is for the Commissioner, and not the Court,
to make. Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001). An ALJ may
disbelieve a claimant’s complaints if there are inconsistencies in the evidence as a
whole. Polaski, 739 F.2d at 1322. When an ALJ explicitly finds that the claimant’s
testimony is not credible and gives good reasons for the findings, the Court will usually
defer to the ALJ. Casey v. Astrue, 503 F.3d 687, 696 (8th Cir. 2007).
In this case, it is true that the ALJ did not cite to the Polaski decision and did not
discuss plaintiff’s medications or side effects. However, “a failure to explicitly cite
Polaski is not alone grounds for remand if the ALJ adequately considers some of the
required factors.” Ross v. Astrue, 4:12-CV-334-CDP (E.D. Mo. Mar. 27, 2013); see also
Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011) (Eighth Circuit affirmed ALJ’s
credibility determination even though ALJ only discussed four of the Polaski factors).
Because the ALJ here discussed the majority of the Polaski factors and provided good
reasons for his findings, the Court finds that the ALJ did not err in his credibility
The ALJ provided the following reasons for finding that plaintiff’s statements
concerning the intensity, persistence and limiting effects of her symptoms were not
entirely credible: (1) medical evidence failed to establish any physical or mental
impairment that persisted at a disabling severity for 12 months or longer; (2) plaintiff
did not seek medical treatment for her emotional/mental disability; (3) plaintiff did not
seek consistent medical treatment for her left foot issues after November 2010; (4)
plaintiff acknowledged that she was able to engage in a variety of daily activities; (5)
plaintiff was employed after her alleged onset date; (6) plaintiff received
unemployment compensation in 2010; and (7) plaintiff had a poor work history with
low earnings. (Tr. 25).
Regarding plaintiff’s depression and anxiety, the ALJ acknowledged that plaintiff
attempted suicide in August of 2010 and that she was subsequently admitted into a
mental health facility for three days. However, the ALJ also took note of the fact that
the record did not contain evidence of any additional mental health treatment,
psychological counseling, or hospitalizations. “A claimant’s allegations of disabling pain
or other subjective symptoms may be discredited due to an absence of hospitalization,
limited treatment of symptoms, and a failure to diligently seek medical care.” Powell
v. Colvin, 4:12-CV-1996-DDN (E.D. Mo. Mar. 31, 2014) (citing Dukes v. Barnhart, 436
F.3d 923, 928 (8th Cir. 2006)); 20 C.F.R. § 416.929(c)(3)(v) (the agency will consider
the claimant’s treatment when evaluating her symptoms). The ALJ also took into
account the opinion of Dr. Long, who performed a psychological examination on plaintiff
and who opined that plaintiff suffered from moderate severity anxiety disorder and mild
severity depressive disorder. (Tr. 1155-1157). Thus, the Court finds that the ALJ’s
credibility findings as to plaintiff’s mental health issues is supported by substantial
evidence on the record as a whole.
In analyzing plaintiff’s complaints regarding the severity of her left foot pain and
discomfort, the ALJ considered plaintiff’s own report that she was able to attend to
personal care activities, shop in stores, manage money, sew on occasion, do crossword
puzzles on occasion, and attend church services. The ALJ reasoned that her ability to
engage in such activities tended to be incongruous with a finding for limitation. The
Eighth Circuit has held that allegations of disabling “pain may be discredited by
evidence of daily activities inconsistent with such allegations.” Davis v. Apfel, 239 F.3d
962, 967 (8th Cir. 2001); see also Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th
Cir. 2004) (The Eighth Circuit held that the ALJ properly considered the fact that
plaintiff watched television, read, drove, and attended church services in concluding
that her subjective complaints were not credible).
The ALJ also considered the fact that in the fourth quarter of the 2010 calendar
year plaintiff was collecting unemployment benefits, which required her to affirmatively
state that she was able and willing to work. An application for unemployment
compensation is “some evidence, though not conclusive, to negate” a claim of
disability. Johnson v. Chater, 108 F.3d 178, 180-81 (8th Cir. 1997). The ALJ also took
note of her poor work history. See Dipple v. Astrue, 601 F.3d 833, 837 (8th Cir. 2010)
(listing a claimant’s work record as consideration when evaluating credibility).
The ALJ further reasoned that the medical record did not support the severity
of plaintiff’s physical complaints. The ALJ explained that although plaintiff had a history
of multiple surgeries to her left foot, she “routinely was shown by postoperative records
between such surgeries to be with improvements in function to levels inconsistent with
a finding  for disability.” (Tr. 11-3, at p. 9). In support of this finding, the ALJ
summarized plaintiff’s medical record in great detail.
The ALJ noted that on February 20, 2009 and May 8, 2009, plaintiff underwent
surgery on her left foot, but that subsequent to these surgeries, Dr. Dailey described
plaintiff to be recovering “exceptionally well” and ambulating nicely with good range of
motion. The ALJ noted that Dr. Dailey described plaintiff to be “100 percent pain free”
with minimal edema. Treatment notes showed that plaintiff was back to wearing a
regular left shoe and returned to work by July 16, 2009. On September 15, 2009, Dr.
Dailey reported that plaintiff returned to work and most activities. The ALJ referenced
plaintiff’s bone scan results, which revealed additional left foot fractures in late 2009,
but noted that plaintiff was “prescribed conservative fracture care (use of a Cam Walker
cast boot).” The same imaging also revealed a breakdown of her bone graft, which was
resolved by surgical intervention on December 11, 2009.
The ALJ noted that regular post-operative examinations with Dr. Dailey showed
minimal pain and edema, no signs of infection, and no signs of dehiscence, while
radiographs showed adequate healing of the bone graft site with evidence of bone
callous formation. Treatment notes from June 24, 2010 stated that plaintiff was able
to return to work without restriction. In August 26, 2010, Dr. Dailey found loose
screws from the internal hardware of her left foot. On September 3, 2010, Dr. Dailey
removed the loose hardware and inserted a bone graft with bone paste. The ALJ noted
that subsequent to this surgery, plaintiff was described to be with minimal pain, no
edema, no signs of infection, no signs of dehiscence. On October 6, 2010, Dr. Dailey
described plaintiff as 100 percent asymptomatic. On November 2, 2010, plaintiff
reported increased pain, while a bone scan revealed successful healing of her previous
fractures. Dr. Dailey recommended conservative treatment through the use of a cam
walker boot in the case of an additional fracture.
The ALJ then took note of the fact that the record lacked any evidence of further
treatment until May 13, 2011, at which time plaintiff had surgery on a fractured fourth
toe. After this surgery the record lacked any evidence of further treatment until March
3, 2012, at which time plaintiff presented with foot pain. Radiographs revealed “mild”
degenerative changes and evidence of prior surgeries.
Plaintiff was treated with
pharmaceutical management. The ALJ also considered Dr. Dailey’s February 17, 2011
functional assessment of plaintiff.
The Court finds that substantial medical evidence supports the ALJ’s conclusion
that plaintiff’s condition improved after each surgical procedure, revealing a lack of
disabling limitations for a continuous 12 month period, and that plaintiff’s minimal
treatment after November 2010 suggests that the severity of her symptoms decreased
to a less than disabling level. Because the ALJ expressly discounted plaintiff’s credibility
and articulated good reasons for doing so, the Court defers to the ALJ’s credibility
B. Dr. Visser’s Opinion
Plaintiff argues that the opinion of Dr. Visser, which was received after the ALJ’s
decision but before the Appeal’s Council’s decision, is new evidence that warrants
If a plaintiff submits new evidence to the court that was not included in the
record before the ALJ, “42 U.S.C. § 405(g) authorizes [the court] to remand [the] case
to the Commissioner where ‘new and material evidence is adduced that was for good
cause not presented during the administrative proceedings.’” Krogmeier v. Barnhart,
294 F.3d 1019, 1024 (8th Cir. 2002) (citing Buckner v. Apfel, 213 F.3d 1006, 1010 (8th
Cir. 2000)). “Material evidence is ‘non-cumulative, relevant, and probative of the
claimant’s condition for the time period for which benefits were denied, and there must
be a reasonable likelihood that it would have changed the Commissioner’s
determination.’” Id. (citing Woolf v. Shalala, 3 F.3d 1210, 1215 (8th Cir. 1993)).
In the instant case, the ALJ issued his decision on June 11, 2012. (Tr. 17-28).
Plaintiff requested review from the Appeals Council on July 11, 2012. (Tr. 11-12). The
new evidence at issue here includes: (1) Dr. Visser’s treatment notes, dated December
12, 2012; (2) Dr. Visser’s treatment notes, dated January 16, 2013, and (3) an RFC
assessment, dated February 8, 2013. See Doc. #12-1, Ex. A. There is no evidence in
the record that plaintiff submitted Dr. Visser’s treatment notes or RFC assessment to
the Appeals Council. The Appeals Council denied plaintiff’s request for review on April
19, 2013. (Tr. 1-5).
First, the Court finds that Dr. Visser’s opinions are not relevant because they do
not relate to the relevant time period. The relevant time period here ended on June 11,
2012, the date that the ALJ issued his decision.
The new evidence submitted by
plaintiff begins on December 12, 2012. There is also no indication that Dr. Visser was
even a treating physician during the relevant time period.
Furthermore, even if Dr. Visser’s treatment notes and RFC were relevant,
plaintiff does not provide any explanation for why she failed to submit this evidence to
the Appeals Council prior to their denial of her request for review. Without a showing
of “good cause,” remand is not appropriate. Krogmeier, 294 F.3d at 1024; Stephens
v. Shalala, 50 F.3d 538, 541 (8th Cir. 1995) (“new evidence not considered by the
Appeals Council will be considered by the reviewing court only upon a showing of
materiality and good cause for not incorporating it in the earlier proceedings.”). Thus,
the Court finds that the opinions of Dr. Visser do not constitute as new evidence that
C. Remand to SSA Medical Staff
Lastly, plaintiff argues that the Court should direct that this case be reviewed by
a medical staff member of the SSA because key medical evidence (the opinions of Dr.
Visser) were added to the record subsequent to the review of this case by a state
agency medical consultant.
As discussed above, Dr. Visser’s opinions do not relate to the relevant time
period and plaintiff has failed to show good cause for why she did not submit this
evidence to the Appeals Council prior to its denial. Because these records are not part
of the record, there is no basis for review of this case by a state agent medical
For the reasons discussed above, the Court finds that the Commissioner’s
decision is supported by substantial evidence in the record as a whole.
IT IS HEREBY ORDERED that the relief sought by plaintiff in her brief in
support of complaint [Doc. #12] is denied.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 2nd day of September, 2014.
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