Moellering v. Colvin
Filing
22
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED, and this cause is REMANDED to the Commissioner for further proceedings consistent with this opinion. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by Magistrate Judge Abbie Crites-Leoni on 3/23/2015. (JMC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
RACHELLE C. MOELLERING,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
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No. 4:13CV1837 ACL
MEMORANDUM AND ORDER
Plaintiff Rachelle C. Moellering brings this action under 42 U.S.C. § 405(g)
for judicial review of the Commissioner’s final decision denying her application
for disability insurance benefits (DIB) under Title II of the Social Security Act, 42
U.S.C. §§ 401, et seq. All matters are pending before the undersigned United
States Magistrate Judge, with consent of the parties, pursuant to 28 U.S.C. §
636(c). Because the Commissioner’s final decision is not supported by substantial
evidence on the record as a whole, it is reversed.
I. Procedural History
On May 8, 2010, plaintiff filed her application for DIB in which she claimed
she became disabled on August 1, 2008, because of obsessive compulsive disorder
(OCD), bipolar disorder, anxiety, depression, impairments of the lumbar and
cervical spine, bilateral knee impairments, seizures/epilepsy, and connective tissue
disorder. Plaintiff was thirty-six years of age at the time she filed her application.
(Tr. 269-70, 296.) The Social Security Administration denied the application on
July 30, 2010. (Tr. 154, 179-83.) Upon plaintiff’s request, a hearing was held
before an administrative law judge (ALJ) on December 1, 2011, at which plaintiff
testified. (Tr. 134-47.) A supplemental hearing was held on January 3, 2012, at
which plaintiff and a vocational expert testified. (Tr. 100-33.) On March 20,
2012, the ALJ denied plaintiff’s claim for benefits, finding plaintiff able to perform
work as it existed in significant numbers in the national economy. (Tr. 156-70.)
On May 28, 2013, upon consideration of additional evidence, the Appeals Council
denied plaintiff’s request for review of the ALJ's decision. (Tr. 8-13.) The ALJ's
determination thus stands as the final decision of the Commissioner. 42 U.S.C. §
405(g).
In the instant action for judicial review, plaintiff claims that the ALJ’s
decision is not supported by substantial evidence on the record as a whole.
Plaintiff specifically argues that the ALJ improperly discounted the medical
opinions rendered by her treating healthcare providers and erred in determining her
credibility. Plaintiff requests that the final decision be reversed and that she be
awarded benefits or that the matter be remanded for further consideration. For the
reasons that follow, the matter will be remanded.
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II. Testimonial Evidence Before the ALJ
A.
Hearing Held December 1, 2011
At the hearing on December 1, 2011, plaintiff testified in response to
questions posed by the ALJ and counsel.
Plaintiff lives with her boyfriend; two of her three children, ages seventeen
and three; two of her boyfriend’s children, ages fourteen and ten; and a seventeenyear-old boy who stays with them occasionally. Plaintiff attended college but did
not complete a semester. Plaintiff also received training as a certified personal
trainer and a CNA, but her certification lapsed. (Tr. 137-38.)
Plaintiff’s Work History Report shows plaintiff to have worked in office
management at True Fitness from September 1997 to August 2008. (Tr. 325.)
Prior to such work, and specifically from April to September 1997, plaintiff
worked as a bar and restaurant manager at a country club. (Tr. 138-39.) Plaintiff
received unemployment benefits in late 2008 to early 2009. (Tr. 140.)
Plaintiff testified that she was recently hospitalized for two days in October
after an attempted suicide. Plaintiff testified that she otherwise receives outpatient
therapy for suicidal thoughts. (Tr. 141.)
Plaintiff testified that she currently takes Oxycontin as prescribed by her
physician. Plaintiff previously took Oxycontin that her mother-in-law had given
her for pain. (Tr. 141-42.)
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The ALJ recessed the hearing until a later date to provide plaintiff’s counsel
the opportunity to submit additional medical evidence. (Tr. 146.)
B.
Hearing Held on January 3, 2012
1.
Plaintiff’s Testimony
At the hearing on January 3, 2012, plaintiff testified in response to questions
posed by the ALJ and counsel.
Plaintiff testified that she lives with her boyfriend; her three children, ages
seventeen, fifteen, and three; and her boyfriend’s two children, ages fourteen and
ten. (Tr. 104.)
Plaintiff testified that she has connective tissue disease affecting her joints,
which causes her to experience pain every day. Plaintiff testified that the pain in
her hands, ankles, and knees is constant and she awakens with all-over stiffness
every morning. Plaintiff testified that the pain sometimes awakens her at night.
Plaintiff testified that she began seeing her rheumatologist, Dr. Garriga, in 2008
after blood tests yielded questionable results. Plaintiff testified that she continues
to see Dr. Garriga and that he recently changed her medication. Plaintiff’s
medication helps enough for her to take care of her daughter. (Tr. 109, 111.)
Plaintiff testified that she experiences pain when she walks. She can walk
enough to be able to clean her house, but cannot walk a mile. Plaintiff cannot get
down on her hands and knees, nor can she lift her three-year-old daughter.
-4-
Plaintiff testified that she has experienced these limitations for nearly two years.
Plaintiff testified that she experiences pain, numbness, and burning in her hands
such that she cannot grip, type, or write. Plaintiff tries to type on her computer at
home to prepare personal journals, but can only do so for about five minutes
because of her limitations. Plaintiff testified that her psychiatrist and counselor
suggested that she engage in such journaling to help with her mental impairments.
(Tr. 110-12.)
Plaintiff testified that she has bipolar disorder and that most days begin with
depressive symptoms. Plaintiff testified that she is in deep depression most days
and breaks down and cries when she is alone. Plaintiff stays in bed some days and
will get up only to prepare meals for her daughter and to take care of the child.
Plaintiff sometimes stays in her pajamas all day and fails to take a shower.
Plaintiff testified that she experiences manic episodes once every two or three
weeks. Plaintiff testified that she has racing thoughts and rapid speech during
these episodes and feels that she does not make any sense. Plaintiff also gets
bursts of energy and becomes overly playful. Plaintiff testified that she is irritating
to other people during these episodes. (Tr. 116-17, 120-21.)
Plaintiff testified that she also has OCD, which interferes with her sleep at
night. Plaintiff testified that with such condition, she has the compulsion to flush
toilets, keep things clean, and repeatedly check to make sure the doors are locked.
-5-
Plaintiff testified to being terrified that someone may break in, or that her daughter
may try to walk out of the house. (Tr. 118-19.)
Plaintiff testified that she has difficulty completing tasks because she forgets
about whatever it is she is doing. Plaintiff testified that things do not get done or
even attempted if they are not written down. (Tr. 119-21.)
Plaintiff testified that she has been seeing her psychiatrist, Dr. Malik, for
twelve to fifteen years. (Tr. 122.) Plaintiff sees her counselor, Ms. Wessler, every
week. (Tr. 112-13.)
As to her daily activities, plaintiff testified that she wakes up between 5:30
and 6:00 a.m. so that her boyfriend can help her get out of bed. Otherwise,
plaintiff has physical difficulty getting out of bed by herself. Plaintiff testified that
she then takes her medication and waits for it to take effect so that she can prepare
breakfast for her daughter when she wakes up. (Tr. 116-17.) Plaintiff testified that
her goal every day is to make sure her house is clean, the laundry is done, and the
meals are cooked. Plaintiff presses herself to get these things done, but sometimes
is unable to. (Tr. 118.) Plaintiff does not watch television and no longer reads
books, because she has many thoughts going through her mind. (Tr. 121-22.)
2.
Testimony of Vocational Expert
Ms. Diederman, a vocational expert, testified at the hearing on January 3,
2012, in response to questions posed by the ALJ and counsel.
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Ms. Diederman classified plaintiff’s past work as a bar and restaurant
manager as light and skilled, and as an office manager as sedentary and skilled.
(Tr. 125-26.)
The ALJ asked Ms. Diederman to consider that plaintiff was limited to light
and unskilled work with the additional limitations that she should not work in a
setting that includes constant, regular contact with the general public, and she
should not perform work that includes more than infrequent handling of customer
complaints. Ms. Diederman testified that plaintiff would not be able to perform
her past relevant work with these limitations. Ms. Diederman testified that a
person with such characteristics could perform other work, however, such as
production assembler, of which 8,000 such jobs exist in the State of Missouri and
280,000 nationally; housekeeping, of which 2,200 such jobs exist in the State of
Missouri and 50,000 nationally; and folding machine operator, of which 250 such
jobs exist in the State of Missouri and 12,000 nationally. (Tr. 126-27.)
Counsel asked Ms. Diederman to consider an individual limited to
sedentary, unskilled work with additional limitations of no reaching, only
occasional fine and gross manipulation, no public contact, and only occasional
contact with coworkers and supervisors. Ms. Diederman testified that no
occupational base exists for such a person. (Tr. 128.)
Counsel then asked Ms. Diederman to consider the individual described by
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the ALJ, and that such individual was further limited in that she was unable to
maintain attention and focus for a consistent two-hour period and would be off task
for ten minutes during every hour of work. Ms. Diederman testified that being
non-productive for ten minutes at a time every hour would preclude competitive
employment. (Tr. 129-31.) Ms. Diederman testified that missing work at least
three days a month in an unskilled position would also preclude competitive
employment, but that some employers may be more flexible with persons missing
two days of work each month. (Tr. 131-32.)
III. Relevant Medical Records Before the ALJ
The medical record in this case begins in August 2007 with plaintiff’s visit
to Dr. Raafea Malik, a psychiatrist, for continued treatment relating to her
diagnosed conditions of bulimia nervosa and bipolar disorder. Between August
2007 and February 2008, plaintiff visited Dr. Malik on five occasions and was
prescribed various medications for her conditions, including Zoloft,1 Ambien,2
Seroquel,3 and Requip.4 Sleep difficulties were noted throughout this period, but
Dr. Malik noted plaintiff’s mood to be relatively stable with isolated exacerbations
1
Zoloft is used to treat depression, OCD, panic attacks, and social anxiety disorder. Medline
Plus (last revised Apr. 13, 2012).
2
Ambien is used to treat insomnia. Medline Plus (last revised Sept. 15, 2013).
3
Seroquel is used to treat bipolar disorder and schizophrenia. Medline Plus (last revised Apr.
15, 2014).
4
Requip is used to treat restless legs syndrome (RLS). Medline Plus (last revised Aug. 15, 2013)
-8-
of symptoms, including irritability. (Tr. 490-93.)
In April 2008, plaintiff underwent examination in relation to her pregnancy.
Dr. Jessica Stafford noted plaintiff to have chronically used medications that
caused weight gain, specifically Ambien and Seroquel, and that she had a history
of bulimia, compulsive exercise, depression, and bipolar disorder. It was also
noted that plaintiff no longer exercised, because of difficulty walking and swelling
in her legs. Plaintiff was given instructions regarding nutrition and she was
encouraged to talk to her physician regarding her medications. (Tr. 365.)
Plaintiff returned to Dr. Malik on May 27, 2008, and reported having periods
of feeling more down. An increase in obsessive thinking was also noted. Plaintiff
reported having increased dreams relating to anxiety about the newborn. It was
noted that being off of work had helped. Dr. Malik continued plaintiff’s diagnosis
of bipolar disorder and instructed plaintiff to continue with Seroquel, Zoloft, and
Ambien. (Tr. 489-90.)
On July 1, 2008, plaintiff reported to Dr. Malik that she had been
experiencing increased mood swings, irritability, and emotional lability. Plaintiff
denied any persistent symptoms of depression, mania, or psychosis. Plaintiff also
denied any excessive symptoms of OCD, but reported having anxiety about her
baby. Plaintiff also reported that she could not sleep without taking Ambien.
.
-9-
Plaintiff was continued in her diagnosis and medication regimen. (Tr. 489.)
Plaintiff delivered her baby on July 31, 2008. (Tr. 377-80.)
Plaintiff returned to Dr. Malik on August 26, 2008, and reported feeling
overwhelmed, having increased anxiety, and being obsessive and over-protective
of her baby. Plaintiff also reported decreased sleep because of worry and
symptoms of restless leg syndrome (RLS). Plaintiff was continued in her diagnosis
and medication regimen. She was instructed to restart Requip. (Tr. 488.)
On October 24, 2008, plaintiff reported to Dr. Malik that she was feeling
more tired and experienced extreme fatigue every day. Plaintiff also reported that
her mind was racing, which caused difficulty falling asleep. Plaintiff denied any
excessive irritability or symptoms of hypermania. Plaintiff reported being
obsessive and anxious about leaving the baby alone. Plaintiff was prescribed
Zyprexa,5 Ambien, Zoloft, and Requip and was instructed to increase her dosage of
Seroquel. (Tr. 488.)
Plaintiff returned to Dr. Malik on February 19, 2009. Dr. Malik noted
plaintiff to report that her mood was mostly stable, but that she had racing thoughts
that interfered with her sleep, felt anxious and overwhelmed, had knots in her
stomach, and was obsessively worried. Plaintiff reported increased symptoms of
5
Zyprexa is used to treat bipolar disorder and schizophrenia. Medline Plus (last revised Aug. 15,
2013).
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RLS that also interfered with her sleep. Plaintiff had no manic symptoms.
Plaintiff was able to exercise and had lost fifty pounds. Dr. Malik diagnosed
plaintiff with bipolar disorder, OCD, and RLS. Plaintiff was instructed to increase
Zoloft and Requip and to continue with Seroquel and Ambien. (Tr. 487.)
On April 28, 2009, plaintiff reported to Dr. Malik that she had relief of her
RLS symptoms and that her sleep quality had improved. Plaintiff reported having
periods of feeling down and continued periods of obsessive thoughts and excessive
anxiety. Plaintiff denied any impulsivity or hypermanic episodes. Plaintiff
reported being frustrated with her inability to lose more weight despite continued
exercise. Plaintiff was diagnosed with bipolar disorder and OCD, and Lamictal6
was added to her medication regimen. (Tr. 487.)
Plaintiff visited Family Nurse Practitioner Janelle S. Carron on June 8, 2009,
with complaints associated with asthma and bronchitis. Plaintiff also requested a
refill of Percocet7 for chronic back pain. Medrol-Dosepak8 was prescribed. A
referral to pain management was considered. (Tr. 412-17.)
6
Lamictal is an anticonvulsant used to treat bipolar disorder. Medline Plus (last revised Feb. 1,
2011).
7
Percocet is a combination of acetaminophen and oxycodone used to relieve moderate to severe
pain. Medline Plus (last revised Oct. 15, 2014).
8
Medrol is used to relieve inflammation and treat certain forms of arthritis as well as severe
allergies and asthma. Medline Plus (last reviewed Sept. 1, 2010).
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Plaintiff visited Dr. Chad J. Smith9 on August 21, 2009, with complaints of
chronic pain in the neck/shoulder region and lower back; occasional dizzy spells;
and diffuse joint pains. Plaintiff’s current medications were noted to include
Requip, Lamictal, Percocet, Medrol-Dosepak, Zoloft, and Seroquel. Physical
examination showed plaintiff to have normal range of motion about the cervical
and lumbar spine. Soft tissue tenderness was noted at the lower lumbar region and
about the bilateral paraspinal regions of the lower neck. Straight leg raising was
negative. Plaintiff had normal motor and sensory functions. No joint swelling or
deformities were noted. Dr. Smith diagnosed plaintiff with dizziness, low back
pain, cervicalgia, and polyarthralgia. Osteopathic manipulative treatment was
administered to the lumbar, thoracic, and cervical regions. Dr. Smith opined that
most of plaintiff’s neck and lower back etiologies were likely mechanical in nature.
Laboratory testing was ordered. (Tr. 403-07.)
Blood tests dated August 25, 2009, yielded positive antinuclear antibody
(ANA) results.10 Dr. Smith determined that such results, coupled with plaintiff’s
joint symptoms, warranted a referral to Dr. Garriga, a rheumatologist. (Tr. 431.)
Plaintiff visited Dr. Francisco J. Garriga on September 18, 2009, with
complaints of stiffness and pain in her neck, shoulders, lower back, right wrist, and
9
Dr. Smith is referred to in the record as plaintiff’s pain specialist.
The ANA test is used as a primary test to help evaluate a person for autoimmune disorders.
ANA, American Ass’n for Clinical Chemistry (last reviewed Apr. 30, 2014).
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10
right knee. Dr. Garriga noted plaintiff to be taking medication for depression.
Physical examination of the joints was normal in all respects. No swollen joints
were noted. Dr. Garriga noted plaintiff’s positive ANA as well as positive Scl-7011
and determined there to be enough suggestion of an autoimmune disease.
Prednisone12 was prescribed. (Tr. 446-47.)
On October 30, 2009, plaintiff reported to Dr. Garriga that she experiences
stiffness all day, but that Prednisone helped. Plaintiff reported depression,
however, which improved after stopping Prednisone; but that hair loss and
arthralgias then recurred. Physical examination was unchanged from the last visit.
Dr. Garriga diagnosed plaintiff with autoimmune disease characterized by alopecia
and arthralgias, with steroid side effects. Dr. Garriga prescribed Tramadol,13
Methotrexate,14 and folic acid. (Tr. 444-45.)
Plaintiff returned to Dr. Malik on December 1, 2009, who noted plaintiff’s
taking of steroid medication to have increased her symptoms of depression with
irritability and suicidal thoughts. Plaintiff reported the symptoms resolved when
11
The diffuse form of scleroderma is associated with autoantibodies to Scl-70. Id.
Prednisone changes the way the immune system works and treats certain types of arthritis,
multiple sclerosis, and lupus. Medline Plus (last reviewed Sept. 1, 2010).
13
Tramadol (Ultram) is a narcotic analgesic used to relieve moderate to moderately severe pain.
Medline Plus (last revised Oct. 15, 2013).
14
Methotrexate (MTX) is used to treat severe active rheumatoid arthritis and other autoimmune
diseases by decreasing the activity of the immune system. Medline Plus (last revised May 15,
2014).
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she stopped the medication. Plaintiff reported her mood to have been mostly okay,
but that she is down when she experiences joint pain. Plaintiff reported her sleep
to be fairly stable. Dr. Malik noted plaintiff’s thought processes to be logical and
goal directed, with no episodes of mania. Plaintiff was diagnosed with bipolar
disorder and was continued on her medications. (Tr. 486.)
On January 5, 2010, plaintiff reported to Dr. Garriga that she continued to
have stiffness but that the pain in her neck, back, wrists, and knees was much
better with Methotrexate. Plaintiff, however, reported the medication caused
nausea. Plaintiff reported her pain to increase in cold weather. Plaintiff reported
that she exercised daily, but could not lift any weight without pain. Plaintiff also
reported that she had difficulty falling and staying asleep. Physical examination
was unchanged. Dr. Garriga diagnosed plaintiff with connective tissue disease and
bipolar disorder, with medication side effects. An adjustment was made to the
timing of Methotrexate doses, and it was noted that the medication may need to be
injected if there was no improvement. (Tr. 442-43.)
On March 8, 2010, plaintiff complained to Dr. Garriga that she experienced
constant pain in her hands, knees, and back. Plaintiff reported having difficulty
grasping objects due to hand pain. Plaintiff also reported increased fatigue.
Plaintiff wanted to discuss applying for disability. Physical examination showed
plaintiff’s right wrist and fingers to be swollen. Plaintiff’s right knee was tender.
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Dr. Garriga noted plaintiff to have swollen joints. Dr. Garriga diagnosed plaintiff
with right knee bursitis, bipolar disorder, and asymmetric arthritis - partially
responding to MTX. Plaintiff was instructed to apply ice to the knee. Knee
exercises were also given. (Tr. 440-41.)
Plaintiff returned to Dr. Malik on March 9, 2010, and reported that Klonopin
helped with anxiety and sleep. Plaintiff reported feeling down and irritable and
having poor frustration tolerance. Plaintiff also reported that she continued to have
significant pain, which interfered with her ability to function well. Plaintiff was
continued in her diagnosis of bipolar disorder and was prescribed Seroquel,
Lamictal, Zoloft, Ambien, Requip, and Klonopin.15 (Tr. 485.)
In a letter dated March 15, 2010, and addressed “To Whom It May
Concern,” Dr. Malik wrote that she was currently treating plaintiff for bipolar
affective disorder. Dr. Malik further wrote, “It is my opinion that she is unable to
work due to her mental illness until further notice.” (Tr. 480.)
On April 20, 2010, plaintiff reported to Dr. Malik that she continued to be in
significant pain that was not responding to Ultram. Plaintiff reported taking
Oxycodone16 for three weeks, which had been given to her by a family member.
Plaintiff reported that the medication helped her pain, which in turn improved her
15
Klonopin is used to relieve panic attacks. Medline Plus (last revised July 1, 2010).
16
Oxycodone (Oxycontin)--narcotic analgesic to relieve moderate to severe pain. Medline Plus
(last revised Oct. 15, 2014).
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mood. It was noted that the pain specialist wanted to clear the use of opiates with
Dr. Malik. Plaintiff reported that her sad mood and crying spells were related to
the severity of her pain. Plaintiff reported that Klonopin improved her sleep.
Plaintiff denied any manic/hypomanic episodes. Plaintiff was continued in her
diagnosis and medication regimen. (Tr. 484.)
On that same date, Dr. Malik spoke with Dr. Garriga and reported that she
was comfortable with plaintiff taking narcotic medication and that she would
monitor her. (Tr. 571.)
On May 17, 2010, Dr. Garriga completed a “Multiple Impairment
Questionnaire” (MIQ) in which he reported his diagnosis of plaintiff to be
undifferentiated connective tissue disease as clinically and diagnostically
demonstrated by swollen joints, laboratory testing with positive ANA and Scl-70
antibody, and tender acromial bursa. Dr. Garriga reported plaintiff’s symptoms to
include pain, fatigue, swelling, and inability to concentrate. Dr. Garriga reported
that plaintiff experienced daily pain in most muscles and joints, and especially in
the shoulder and pelvic area. Dr. Garriga reported the pain to worsen with
prolonged immobility or marked exertion. Dr. Garriga reported that plaintiff’s
pain and fatigue rated at a level eight on a scale of one to ten and that medication
did not completely relieve plaintiff’s pain without unacceptable side effects. Dr.
Garriga opined that plaintiff could sit four hours in an eight-hour workday and
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could stand or walk one hour. Dr. Garriga opined that plaintiff would need to get
up and move around for about five minutes every half hour. Dr. Garriga opined
that plaintiff could occasionally lift up to twenty pounds, occasionally carry up to
ten pounds, and frequently lift and carry up to five pounds. Dr. Garriga opined that
plaintiff had no significant limitations with repetitive reaching, handling, fingering,
or lifting. He further opined, however, that plaintiff was moderately limited in her
ability to grasp, turn, and twist objects; use her fingers or hands for fine
manipulations; and use her arms for reaching. Dr. Garriga reported that plaintiff’s
condition interfered with her ability to keep her neck in a constant position and that
her symptoms would likely increase if she were placed in a competitive
environment. Dr. Garriga opined that plaintiff could not perform full time
competitive employment that required activity on a sustained basis. Dr. Garriga
opined that plaintiff’s pain, fatigue, or other symptoms were severe enough to
frequently interfere with her ability to maintain attention and concentration. Dr.
Garriga reported that plaintiff was not a malingerer. Dr. Garriga reported that
plaintiff also had a psychiatric disease and was capable of performing only low
stress work. Dr. Garriga opined that plaintiff would need to take an unscheduled
ten-minute break every two hours during an eight-hour workday. Dr. Garriga
reported that plaintiff’s impairments produced good days and bad days and that
plaintiff would likely be absent from work two or three times a month because of
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her impairments or needed treatment. Dr. Garriga also reported that plaintiff was
prone to infections, because her medication can suppress her immune system. Dr.
Garriga opined that plaintiff needed to avoid fumes, gases, temperature extremes,
humidity, dust, and heights; and could engage in no kneeling, bending, or stooping.
Dr. Garriga reported that plaintiff began experiencing her symptoms and the
described limitations in early 2009 and that her impairments would last at least
twelve months. (Tr. 536-43.)
On June 1, 2010, Dr. Garriga reported to disability determinations that
plaintiff experienced knee and back pain, but did not have synovitis. Dr. Garriga
described plaintiff’s gait as normal and noted that she did not need an assistive
device, but further noted that plaintiff did not have a motor disease. (Tr. 496.)
On July 29, 2010, Kyle DeVore, Ph.D., a psychological consultant with
disability determinations, completed a Psychiatric Review Technique Form in
which he opined that plaintiff’s bipolar affective disorder and OCD caused mild
limitations in activities of daily living; moderate limitations in maintaining social
functioning and in maintaining concentration, persistence, or pace; and resulted in
no repeated episodes of decompensation of extended duration. (Tr. 550-61.) In a
Mental Residual Functional Capacity (RFC) Assessment completed that same date,
Dr. DeVore opined that in the domain of Understanding and Memory, plaintiff had
no significant limitations. In the domain of Sustained Concentration and
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Persistence, Dr. DeVore opined that plaintiff was moderately limited in her ability
to carry out detailed instructions, to maintain attention and concentration for
extended periods, and to work in coordination with or proximity to others without
being distracted by them, but was not otherwise significantly limited. In the
domain of Social Interaction, Dr. DeVore opined that plaintiff was moderately
limited in her ability to interact appropriately with the general public, to accept
instructions and respond appropriately to criticism from supervisors, and to get
along with coworkers or peers without distracting them or exhibiting behavioral
extremes, but was otherwise not significantly limited. In the domain of Adaption,
Dr. DeVore opined that plaintiff was moderately limited in her ability to travel in
unfamiliar places or use public transportation, but was otherwise not significantly
limited. Dr. DeVore concluded that plaintiff was capable of simple, repetitive
activities with limited contact with the public. (Tr. 547-49.)
Plaintiff returned to Dr. Garriga on August 2, 2010, and reported having
stiffness and constant pain in her back, legs, and hands that was worsening.
Plaintiff reported having difficulty sleeping because of pain and OCD. It was
noted that Dr. Smith recently increased plaintiff’s dosage of Oxycontin, which
helped the pain and sleeping conditions. Plaintiff reported increased weight gain
despite walking several times a week. Dr. Garriga noted increased hair loss to
likely be due to medication. Physical examination showed normal joints with no
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swelling. Normal range of motion was noted about the hips. Dr. Garriga
diagnosed plaintiff with connective tissue disease, fatigue, and Methotrexate hair
loss. Plaintiff was instructed to discontinue Methotrexate and to start Plaquenil.17
(Tr. 569-71.)
Plaintiff visited Dr. Malik on September 21, 2010, and reported having
severe depression, increased anxiety, and poor sleep since her husband left in
August. Plaintiff reported increased financial stressors with difficulty paying bills.
Plaintiff reported increasing her intake of Klonopin and that her symptoms of SLE
were exaggerated, with continued symptoms of significant pain for which she took
Oxycontin. Plaintiff was continued in her diagnosis of bipolar disorder. She was
instructed to increase her dosage of Klonopin. Seroquel, Zoloft, Requip, Lamictal,
and Restoril18 were prescribed. (Tr. 562.)
On November 3, 2010, plaintiff visited Dr. Garriga and reported having
stiffness and constant pain in her hands, knees, lower back, and neck, as well as
intermittent pain in her feet. Plaintiff reported that she tapered her use of Plaquenil
because it caused stomach upset and continued hair loss. Plaintiff reported being
stressed because her spouse left. Plaintiff reported an involuntary weight loss of
17
Plaquenil (hydroxychloroquine) is used to treat systemic lupus erythematosus (SLE) and
rheumatoid arthritis in patients whose symptoms have not improved with other treatments.
Medline Plus (last reviewed Sept. 1, 2010)< http://www.nlm.nih.gov/medlineplus/druginfo/
meds/a601240.html>.
18
Restoril is used to treat insomnia. Medline Plus (last revised Feb. 1, 2011).
- 20 -
twenty-three pounds. Dr. Garriga noted plaintiff to be tearful. Examination of the
joints yielded normal results. (Tr. 568-69.)
Plaintiff visited Dr. Smith on January 4, 2011, for completion of disability
paperwork. It was noted that plaintiff’s joint pain and soft tissue pain were
progressive and that her symptoms were less controlled, even with Oxycontin.
Plaintiff reported that she continued to take Tramadol. Physical examination
showed plaintiff’s hands to have mild joint inflammation at the IP joints. Plaintiff
had an antalgic gait and was noted to exhibit pain when getting up and down from
the chair. Dr. Smith diagnosed plaintiff with connective tissue disease, bipolar
affective disorder, and chronic low back pain. Dr. Smith was not willing to
increase plaintiff’s Oxycontin, and he instructed plaintiff to follow up with her
psychiatrist and rheumatologist. (Tr. 578.)
In an MIQ completed that same date, Dr. Smith reported plaintiff’s
diagnoses to be connective tissue disease, bipolar disorder, chronic low back pain,
and seizure disorder, which were clinically demonstrated by swollen joints in the
hands, and tests showing positive ANA and Scl-70. Dr. Smith reported plaintiff’s
symptoms to include persistent fatigue and diffuse joint and soft tissue pain in the
hands, knees, and ankles. Dr. Smith reported plaintiff’s pain to consist of constant
aching joints in the hands, knees, ankles, and lower back. Dr. Smith reported the
pain to worsen with increased activity and that emotional stress also contributed to
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plaintiff’s pain. Dr. Smith reported plaintiff’s pain to be at a level seven and her
fatigue to be at a level nine on a scale of one to ten and that medication did not
completely relieve her pain without unacceptable side effects. Dr. Smith opined
that plaintiff could sit no more than one hour in an eight-hour workday and could
stand or walk one hour. Dr. Smith opined that plaintiff would need to get up and
move around for about fifteen to twenty minutes every half hour. Dr. Smith
opined that plaintiff could occasionally lift and carry up to ten pounds, and
frequently lift and carry up to five pounds. Dr. Smith opined that plaintiff had
significant limitations with repetitive reaching, handling, fingering, or lifting
because of pain when opening and closing her hands. Dr. Smith opined that such
limitations were marked with grasping, turning, and twisting objects and with
using her fingers or hands for fine manipulations. Dr. Smith opined that plaintiff
had minimal limitations in using her arms for reaching. Dr. Smith noted plaintiff’s
medications to include Oxycontin, Temazepam (Restoril), Tramadol, Clonazepam
(Klonopin), Plaquenil, Zoloft, Seroquel, Requip, and Lamictal. Dr. Smith reported
that plaintiff’s condition interfered with her ability to keep her neck in a constant
position and that her symptoms would likely increase if she were placed in a
competitive environment. Dr. Smith opined that plaintiff could not perform full
time competitive employment that required activity on a sustained basis. Dr.
Smith opined that plaintiff’s pain, fatigue, or other symptoms were severe enough
- 22 -
to constantly interfere with her ability to maintain attention and concentration. Dr.
Smith reported that plaintiff was not a malingerer. Dr. Smith reported that plaintiff
had anxiety involving interaction with other people that contributed to the severity
of her symptoms and functional limitations. Noting plaintiff to decompensate with
minimal life stressors, Dr. Smith opined that plaintiff was incapable of performing
even low stress work. Dr. Smith opined that plaintiff would need to take a fifteenminute unscheduled break every hour during an eight-hour workday. Dr. Smith
reported that plaintiff’s impairments produced good days and bad days and that
plaintiff would likely be absent from work more than three times a month as a
result of her impairments or her need for treatment. Dr. Smith opined that plaintiff
needed to avoid heights and could engage in no kneeling, bending, stooping,
pulling, or pushing. Dr. Smith reported that plaintiff began experiencing her
symptoms and the described limitations in 2009 and that her impairments would
last at least twelve months. (Tr. 579-86.)
Plaintiff returned to Dr. Malik on February 15, 2011, and reported having a
depressed mood. Plaintiff also reported being distracted and unable to finish tasks.
Plaintiff complained of excessive anxiety and increased panic attacks and reported
that she was taking Klonopin regularly. Plaintiff also reported having continued
joint pain for which she was seeing Dr. Smith for pain management. Dr. Malik
diagnosed plaintiff with bipolar disorder/depressed and continued to prescribe
- 23 -
Seroquel, Klonopin, Zoloft, Requip, Restoril, and Lamictal. Plaintiff was
encouraged to participate in counseling. (Tr. 587.)
On February 16, 2011, plaintiff reported to Dr. Garriga that she experienced
stiffness and constant pain in her neck, lower back, knees, ankles, and hands and
that the pain increased with activity. Plaintiff reported the pain in her right hand to
keep her awake at night. Dr. Garriga noted plaintiff to visit Dr. Smith for pain
management. Plaintiff also reported experiencing severe fatigue, hair loss,
gastrointestinal symptoms attributed to Plaquenil, infections, pruritis, nodules on
her fingers, and palpitations. Plaintiff was also concerned about weight gain. Dr.
Garriga noted plaintiff to be very emotional. Examination showed Tinel’s test to
be positive on the right. Otherwise, examination of the joints was normal with no
swelling or tenderness noted. Plaintiff was diagnosed with connective tissue
disease and carpal tunnel syndrome on the right. An injection was administered to
the right wrist. Plaintiff was instructed to discontinue Plaquenil. (Tr. 592-93.)
Plaintiff returned to Dr. Malik on April 12, 2011, and reported that she
continued to feel very depressed with crying spells and feelings of anhedonia,
hopelessness, and worthlessness. Dr. Malik noted plaintiff to have poor selfesteem and self-confidence. Plaintiff reported panic attacks had lessened with the
use of Klonopin. Plaintiff reported that she continued to think of her husband and
the loss of their marriage. Plaintiff was continued in her diagnosis and medication
- 24 -
regimen. (Tr. 587-88.)
Plaintiff visited Dr. Garriga on June 2, 2011, and reported continued
stiffness. Plaintiff also reported worsening pain in her right knee and hand.
Plaintiff expressed concern about falling and tripping over things because of
fatigue, with related concerns regarding her ability to care for her two-year-old
daughter. Plaintiff reported having difficulty functioning throughout the day and
that she had very few “good” days. Plaintiff also reported a recent bout with
bronchitis, swelling in her hands and ankles, recurrent rash, and painful nodules on
her fingers. Examination of the joints was normal with no tenderness noted.
Plaintiff was noted to have many tight muscle groups. Dr. Garriga diagnosed
plaintiff with myofascial pain with positive ANA. (Tr. 590-92.) Dr. Garriga noted
plaintiff’s lack of energy to remain unexplained, but that four of plaintiff’s
medications were sedating. He recommended that plaintiff discuss this issue with
the prescribing doctor. (Tr. 599.)
On June 20, 2011, Dr. Garriga noted recent blood tests to show low levels of
immunoglobulin, possibly accounting for the frequency of plaintiff’s infections.
Dr. Garriga recommended that plaintiff undergo a thorough allergy/immunology
workup. (Tr. 598.)19
19
The record shows plaintiff to have undergone such allergy testing in August 2011 (Tr. 691-92)
with follow up treatment in October 2011 (Tr. 678).
- 25 -
Plaintiff met with licensed clinical social worker Bonnie Wessler on July 23,
2011, who noted plaintiff’s divorce to have been completed the previous day.
Plaintiff reported having been diagnosed with depression and bipolar disorder.
Plaintiff also reported chronic pain, and Ms. Wessler noted plaintiff to be
uncomfortable while sitting during the session because of pain. Plaintiff reported
that she wanted to learn how to cope better, and Ms. Wessler noted her to be
motivated for treatment. Plaintiff had thoughts of self-harm, but reported no plan
or intent. (Tr. 675.)
In August and September 2011, plaintiff visited Ms. Wessler on five
occasions during which she continued to express anger, sadness, and worry
regarding her divorce, her children, and her chronic pain. Ms. Wessler noted that
chronic pain prevented plaintiff from identifying anything that would make her feel
better. Plaintiff reported being a perfectionist and that she was having a hard time
not doing things perfectly because of her health condition. During episodes of
feeling “better,” Ms. Wessler noted that plaintiff nevertheless continued to have
many complaints. Plaintiff reported that she would never kill herself, because she
would not put her children through that circumstance. (Tr. 675.)
Plaintiff returned to Dr. Malik on October 10, 2011, and reported that she
continued to feel depressed and that her anxiety level was increasing. Plaintiff
reported that everything in life was overwhelming. Plaintiff reported having
- 26 -
difficulty leaving her house and that she had more anxiety in social situations.
Plaintiff reported having occasional anger, but denied any symptoms of mania.
Plaintiff reported being unable to enjoy food or a recent visit from her sister.
Plaintiff had increased difficulty with sleep, even with medication. Dr. Malik
diagnosed plaintiff with bipolar disorder with depressed mood. Plaintiff was
prescribed Seroquel, Requip, Restoril, Lamictal, and Viibryd20 and was to taper
Zoloft. Plaintiff was instructed to increase her use of Klonopin. (Tr. 661.)
Plaintiff was admitted to the emergency room at St. Joseph Hospital West on
October 19, 2011, for an intentional overdose of Oxycontin. Plaintiff reported that
she wanted to die, took twenty-six Oxycontin tablets, and was upset that she was
not successful in her attempt. Plaintiff was noted to be very combative and
agitated, and she was placed in restraints. Plaintiff’s past medical and psychiatric
history was noted. During psychological assessment, plaintiff reported increased
stress and depression related to her recent divorce and family discord, including
being excluded from family functions. Plaintiff was noted to feel helpless and
hopeless. Plaintiff was sad and tearful, disheveled in appearance, and curled up on
a stretcher during the assessment. Later monitoring and assessment showed
plaintiff to be tearful and sedated but cooperative. Her mood, memory, affect, and
judgment were normal, and her vital signs were stable. Plaintiff was alert and
20
Viibryd is used to treat depression. Medline Plus (last revised Apr. 13, 2012).
- 28 -
In a letter dated November 17, 2011, Dr. Smith wrote that plaintiff’s
significant limitations were outlined in his January 2011 MIQ. (Tr. 640.)
Plaintiff visited Ms. Wessler on December 2, 2011, who noted plaintiff to be
in substantial pain and to be tearful at times. Plaintiff reported having no control
over her life, being in constant pain, and feeling like a failure inasmuch as she no
longer excels at things and cannot do much. (Tr. 676.)
In a letter dated December 9, 2011, Dr. Garriga wrote that the findings and
limitations set out in his May 2010 MIQ remained in effect. (Tr. 650.)
On December 20, 2011, Ms. Wessler noted plaintiff to appear sad. Plaintiff
was concerned that she would be homeless inasmuch as payments had not been
made on the house. Plaintiff also reported being sad and angry over her poor
relationship with her boyfriend. Ms. Wessler noted plaintiff to appear very
motivated to address issues, however, she was overwhelmed with how to do it.
(Tr. 676.)
In a “Psychiatric/Psychological Impairment Questionnaire” (PPIQ)
completed December 23, 2011 (Tr. 651-658), Ms. Wessler wrote that she had been
seeing plaintiff approximately once a week since July 23, 2011, for her diagnosed
condition of bipolar disorder. Ms. Wessler noted plaintiff’s primary symptoms to
include depressed mood, extreme mood fluctuations, flashbacks, lack of restful
sleep, appetite fluctuation, panic attacks, irritability, suicidal ideation, and one
- 29 -
suicide attempt. Ms. Wessler opined that plaintiff’s prognosis was poor. In the
domain of Understanding and Memory, Ms. Wessler opined that plaintiff was
markedly limited in her ability to understand and remember one- or two-step
instructions and detailed instructions. Ms. Wessler further opined that plaintiff was
moderately limited in her ability to remember locations and work-like procedures.
In the domain of Sustained Concentration and Persistence, Ms. Wessler opined that
plaintiff was markedly limited in her ability to carry out detailed instructions,
maintain attention and concentration for extended periods, perform activities
within a schedule, maintain regular attendance, be punctual within customary
tolerances, complete a normal workweek without interruptions from
psychologically-based symptoms, and perform at a consistent pace without an
unreasonable number and length of rest periods. Ms. Wessler further opined that
plaintiff was mildly limited in her ability to make simple work-related decisions
and moderately limited in her ability to carry out simple one- or two-step
instructions, sustain an ordinary routine without supervision, and work in
coordination with or proximity to others without being distracted by them. In the
domain of Social Interaction, Ms. Wessler opined that plaintiff was markedly
limited in her ability to get along with coworkers or peers without distracting them
or exhibiting behavioral extremes, maintain socially appropriate behavior, and
adhere to basic standards of neatness and cleanliness. Ms. Wessler further opined
- 30 -
that plaintiff was moderately limited in her ability to interact appropriately with the
general public, mildly limited in her ability to accept instructions and respond to
criticism from supervisors, and not limited in her ability to ask simple questions or
request assistance. In the domain of Adaptation, Ms. Wessler opined that plaintiff
was markedly limited in her ability to respond appropriately to changes in the work
setting, travel in unfamiliar places or use public transportation, and set realistic
goals or make plans independently. Ms. Wessler further opined that plaintiff was
moderately limited in her ability to be aware of normal hazards and take
appropriate precautions. Ms. Wessler reported that plaintiff experienced episodes
of deterioration or decompensation in work or work-like settings that cause her to
withdraw or experience exacerbations of signs and symptoms. (Tr. 651-56.) Ms.
Wessler also opined that plaintiff was “markedly limited in her ability to sustain
employment of any type due to depression, anxiety [and] mood swings.” (Tr. 656.)
Ms. Wessler reported that plaintiff was not a malingerer. Ms. Wessler opined that
plaintiff was not capable of even low stress jobs noting that plaintiff functioned
minimally at home, which made it unlikely that she could cope with the addition of
any work stresses. Ms. Wessler opined that plaintiff would be absent from work
more than three times each month as a result of her impairments and treatment
needs. Ms. Wesler noted that plaintiff’s impairments and symptoms were ongoing,
had worsened since her teenage years, and were expected to last at least twelve
- 31 -
months. (Tr. 656-58.)
In an undated narrative report, Dr. Garriga wrote that he first saw plaintiff in
September 2009 with complaints of joint and muscle pains, fatigue, dry eyes, dry
mouth, diffuse swelling, and weakness; and that examination showed several
swollen joints, with positive ANA and Scl-70 tests. Dr. Garriga reported that he
diagnosed undifferentiated connective tissue disease and prescribed Prednisone,
hydroxychloroquine, and Methotrexate, which improved plaintiff’s condition but
that some pain and swollen joints remained. Dr. Garriga also reported that plaintiff
had been prescribed long-acting narcotics due to persistent pain. Dr. Garriga
reported that he sees plaintiff every four months with frequent monitoring of her
blood. Dr. Garriga reported,
I have not conducted a full work evaluation on her. I know that she
has pain and that she feels the pain and the medicine interfere with her
ability to perform her duties. The patient’s condition is chronic. I do
not expect it to go away. From my standpoint her disease has lasted at
least a year. I expect to continue to follow her in my office on a
chronic basis.
(Tr. 395.)
IV. Medical Evidence Considered by the Appeals Council21
Plaintiff visited Dr. Malik on January 19, 2012, and reported continued
21
This evidence was not before the ALJ at the time of her decision but was submitted to and
considered by the Appeals Council on plaintiff’s request to review the ALJ’s decision. As a
result, this Court must consider it in determining whether the ALJ's decision was supported by
substantial evidence. Frankl v. Shalala, 47 F.3d 935, 939 (8th Cir. 1995); Richmond v. Shalala,
23 F.3d 1441, 1444 (8th Cir. 1994).
- 32 -
periods of depression, “dark days,” and pervasive suicidal thoughts. Plaintiff
reported having more mood instability with periods of hypermania, irritability, and
increased energy, but that the periods of depression were lasting longer. It was
noted that plaintiff was attending individual weekly therapy sessions. Plaintiff was
continued in her diagnosis of bipolar disorder and was prescribed Viibryd,
Seroquel, Requip, Lamictal, and Klonopin. (Tr. 743.)
On March 13, 2012, Dr. Malik noted plaintiff to be experiencing an increase
in anxiety and OCD with compulsive checking. Plaintiff reported not taking
Trazodone, because of her fear that she would not be able to wake up with her
daughter. Plaintiff reported having newer paranoid thoughts and auditory
hallucinations. Plaintiff’s mood was noted to still be depressed. Plaintiff denied
any mood swings. Dr. Malik noted that plaintiff was prescribed Oxycontin and
Tramadol for pain. Plaintiff was continued in her diagnosis and medication
regimen, with instruction to increase her Seroquel. (Tr. 742.)
On April 26, 2012, plaintiff reported to Dr. Malik that she had to decrease
the Seroquel back to its original dosage because the increased dosage made her
more irritable. Plaintiff reported having continued obsessive thoughts as well as
depression with crying spells. Plaintiff reported that her mood was related to
environmental and financial issues. Dr. Malik noted plaintiff to have chronic pain
because of connective tissue disorder and that she continued to take Oxycontin as
- 33 -
prescribed by Dr. Smith. No changes were made to plaintiff’s treatment regimen.
(Tr. 742.)
Plaintiff returned to Dr. Malik on May 21, 2012, who noted plaintiff to have
recently been to the emergency room after an assault by her boyfriend. It was
noted that plaintiff was seen by a neurologist and was given Dilantin, but that she
did not take the medication because of drug interactions. Plaintiff reported that she
stopped taking Requip but experienced poor sleep due to her RLS. Plaintiff
complained of excessive fatigue caused by her connective tissue disorder. Plaintiff
denied any suicidal thoughts. Plaintiff was instructed to continue with her
medication and with her therapy sessions with Ms. Wessler. It was noted that Dr.
Malik would coordinate care with the neurologist. (Tr. 741.)
V. The ALJ's Decision
The ALJ found that plaintiff met the insured status requirements of the
Social Security Act through December 21, 2013. The ALJ found plaintiff not to
have engaged in substantial gainful activity since August 1, 2008, the alleged onset
date of disability. The ALJ found that plaintiff had the severe impairments of
undifferentiated and mixed connective tissue disease, depression, bipolar disorder,
anxiety, and OCD, but that she did not have an impairment or combination of
impairments that met or medically equaled an impairment listed in 20 C.F.R. Part
404, Subpart P, Appendix 1. (Tr. 161-62.) The ALJ found that plaintiff had the
- 34 -
RFC to perform light work22 except that she
cannot climb ladders, ropes, or scaffolds. The claimant can
understand, remember, and carry out at least simple instructions and
non-detailed tasks. However, she should not work in a setting, which
includes constant/regular contact with the public, and should not
perform work, which includes more than infrequent handling of
customer complaints.
(Tr. 164.) The ALJ determined that plaintiff was unable to perform any past
relevant work. Considering plaintiff’s age, education, work experience, and RFC,
the ALJ determined that vocational expert testimony supported a finding that
plaintiff could perform other work that exists in significant numbers in the national
economy, and specifically, production assembler, housekeeper, and folding
machine operator. The ALJ thus found that plaintiff had not been under a
disability since August 1, 2008, through the date of the decision. (Tr. 168-70.)
VI. Discussion
To be eligible for DIB under the Social Security Act, plaintiff must prove
that she is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001);
Baker v. Secretary of Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992).
Under the Act, “disability” is defined as the "inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
22
“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds. . . . [A] job is in this category when it requires a good deal
of walking or standing, or when it involves sitting most of the time with some pushing and
pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b).
- 35 -
impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months." 42 U.S.C. §
423(d)(1)(A). An individual will be declared disabled "only if [her] physical or
mental impairment or impairments are of such severity that [she] is not only unable
to do [her] previous work but cannot, considering [her] age, education, and work
experience, engage in any other kind of substantial gainful work which exists in
the national economy." 42 U.S.C. § 423(d)(2)(A).
The Commissioner engages in a five-step sequential evaluation process for
determining whether a claimant is disabled. 20 C.F.R. § 404.1520; Bowen v.
Yuckert, 482 U.S. 137, 140-42 (1987). Step 1 considers whether the claimant is
engaged in substantial gainful activity. If so, disability benefits are denied. At
Step 2, the Commissioner decides whether the claimant has a “severe” medically
determinable impairment or combination of impairments, meaning that which
significantly limits her ability to do basic work activities. If the claimant's
impairment(s) is not severe, then she is not disabled. If the impairment(s) is
severe, the Commissioner then determines at Step 3 whether such impairment(s) is
equivalent to one of the impairments listed in 20 C.F.R., Subpart P, Appendix 1. If
claimant's impairment(s) meets or equals one of the listed impairments, she is
conclusively disabled. At Step 4, the Commissioner establishes whether the
claimant’s impairment(s) prevents her from performing her past relevant work. If
- 36 -
the claimant can perform such work, she is not disabled. Finally, if the claimant is
unable to perform her past work, the Commissioner continues to Step 5 and
evaluates various factors to determine whether the claimant is capable of
performing any other work in the economy. The claimant is entitled to disability
benefits only if she is not able to perform other work.
The decision of the Commissioner must be affirmed if it is supported by
substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v.
Perales, 402 U.S. 389, 401 (1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir.
2002). Substantial evidence is less than a preponderance but enough that a
reasonable person would find it adequate to support the conclusion. Johnson v.
Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). This “substantial evidence test,”
however, is “more than a mere search of the record for evidence supporting the
Commissioner’s findings.” Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007)
(internal quotation marks and citation omitted). “Substantial evidence on the
record as a whole . . . requires a more scrutinizing analysis.” Id. (internal quotation
marks and citations omitted).
To determine whether the Commissioner's decision is supported by
substantial evidence on the record as a whole, the Court must review the entire
administrative record and consider:
1.
The credibility findings made by the ALJ.
- 37 -
2.
The plaintiff's vocational factors.
3.
The medical evidence from treating and consulting physicians.
4.
The plaintiff's subjective complaints relating to exertional and
non-exertional activities and impairments.
5.
Any corroboration by third parties of the plaintiff's
impairments.
6.
The testimony of vocational experts when required which is
based upon a proper hypothetical question which sets forth the
claimant's impairment.
Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir.
1992) (internal citations omitted). The Court must also consider any evidence
which fairly detracts from the Commissioner’s decision. Coleman, 498 F.3d at
770; Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999). However, even
though two inconsistent conclusions may be drawn from the evidence, the
Commissioner's findings may still be supported by substantial evidence on the
record as a whole. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001)
(citing Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000)). “[I]f there is
substantial evidence on the record as a whole, we must affirm the administrative
decision, even if the record could also have supported an opposite decision.”
Weikert v. Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal quotation marks
and citation omitted); see also Jones ex rel. Morris v. Barnhart, 315 F.3d 974, 977
(8th Cir. 2003).
- 38 -
As set out above, plaintiff argues that the ALJ failed to properly weigh the
opinion evidence of record when determining her RFC and erred in her analysis
finding plaintiff’s subjective complaints not to be credible. Plaintiff’s claims are
well taken. Because the ALJ’s decision is not supported by substantial evidence
on the record as a whole, the decision is reversed and the matter remanded to the
Commissioner for further proceedings.
A.
Credibility
Before determining a claimant’s RFC, the ALJ must first evaluate the
claimant’s credibility. Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Tellez
v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005). In so doing, the ALJ must consider
all evidence relating to the claimant’s subjective 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. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
1984) (subsequent history omitted). When rejecting a claimant's subjective
complaints, the ALJ must make an express credibility determination detailing her
reasons for discrediting the testimony. Renstrom v. Astrue, 680 F.3d 1057, 1066
(8th Cir. 2012); Cline v. Sullivan, 939 F.2d 560, 565 (8th Cir. 1991). “It is not
enough that inconsistencies may be said to exist, the ALJ must set forth the
- 39 -
inconsistencies in the evidence presented and discuss the factors set forth in
Polaski when making credibility determinations.” Cline, 939 F.2d at 565; see also
Renstrom, 680 F.3d at 1066; Beckley v. Apfel, 152 F.3d 1056, 1059-60 (8th Cir.
1998). 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); see also Casey v. Astrue, 503 F.3d 687,
696 (8th Cir. 2007). The determination of a claimant’s credibility is for the
Commissioner, and not the Court, to make. Tellez, 403 F.3d at 957; Pearsall, 274
F.3d at 1218.
Here, the ALJ pointed to inconsistencies in the record that detracted from
plaintiff’s credibility. However, a review of the entirety of the record shows the
ALJ’s analysis to be flawed. Several of the alleged inconsistencies relied on by the
ALJ are not supported by the record and indeed, in some instances, are contrary to
the record. Because these discrepancies undermine the ALJ’s ultimate conclusion
that plaintiff’s impairments are less severe than she claims, the matter must be
remanded for reconsideration of plaintiff’s credibility and for a more complete
review of the record. Baumgarten v. Chater, 75 F.3d 366, 368-69 (8th Cir. 1996).
First, the ALJ asserted that the medical evidence did not support plaintiff’s
claims of a disabling physical impairment, finding that plaintiff received only
conservative treatment, was “merely prescribed” pain medication, and did not
- 40 -
participate in any physical therapy, undergo invasive surgery, or receive
epidural/steroid injections. The ALJ also found the treatment history for plaintiff’s
physical impairments to be “limited” and that diagnostic tests were “mostly
normal.” (Tr. 165.) A review of the record as a whole shows these findings not to
be supported by, and indeed to be contrary to, substantial evidence.
With respect to plaintiff’s medications, the record shows powerful, narcotic
pain medication to have been prescribed for moderate to severe pain since at least
2009. Although plaintiff experienced some initial relief, the record shows that she
nevertheless experienced worsening pain over time despite continued use of such
medication. In O’Donnell v. Barnhart, 318 F.3d 811 (8th Cir. 2003), the Eighth
Circuit noted that the claimant’s chronic use of Oxycodone, “a narcotic similar to
morphine,” actually supported her allegations of pain instead of detracted from
them. Id. at 817. Given plaintiff’s chronic use of this same medication here, with
evidence that it did not provide full relief, it cannot be said that her being “merely
prescribed” pain medication serves to discredit her complaints of pain.
In addition, while the ALJ acknowledged plaintiff’s medications to also
include Prednisone, hydroxychloroquine, and Methotrexate, she wholly failed to
consider the adverse side effects plaintiff experienced with these medications –
including increased depression and suicidal thoughts, nausea, suppressed immune
system, gastrointestinal upset, and hair loss – which led to them being discontinued
- 41 -
altogether. Further, when addressing plaintiff’s complaints of fatigue, Dr. Garriga
noted that many of plaintiff’s medications caused sedation. The ALJ failed to
address this side effect as well. An ALJ is required to consider medication side
effects in the credibility analysis. Porch v. Chater, 115 F.3d 567, 572 (8th Cir.
1997).
To the extent the ALJ discredited plaintiff’s subjective complaints because
of her failure to attend physical therapy, undergo surgery, or receive injections, the
record does not show that plaintiff’s healthcare providers recommended such
treatment methods or considered them appropriate for plaintiff’s autoimmune
disorder. An “ALJ’s reliance on . . . [her] own beliefs as to what the medical
evidence should show do[es] not constitute substantial evidence” to support a
conclusion that a claimant has the RFC to perform work-related activities. Fowler
v. Bowen, 866 F.2d 249, 252 (8th Cir. 1989). Nor may an ALJ “play doctor” and
substitute her opinion for that of a medical professional. See Pate-Fires v. Astrue,
564 F.3d 935, 946-47 (8th Cir. 2009) (citing Rohan v. Chater, 98 F.3d 966, 970
(7th Cir. 1996)); Ness v. Sullivan, 904 F.2d 432, 435 (8th Cir. 1990). No medical
report of record suggests that plaintiff has not been pursuing a valid course of
treatment. Nor have any of plaintiff’s doctors questioned the severity of plaintiff’s
impairments. In such circumstances, it was error for the ALJ to discredit plaintiff’s
complaints on account of her failure to pursue other modes of treatment. See Tate
- 42 -
v. Apfel, 167 F.3d 1191, 1197-98 (8th Cir. 1999).
The ALJ also discredited plaintiff’s subjective complaints relating to her
mental impairments, finding that plaintiff received only sporadic treatment, failed
to take her medication, failed to appear for appointments during a five-month
period in 2010, and did not maintain a consistent relationship with a therapist. The
ALJ further stated that the record showed plaintiff to be stable and that
conservative treatment improved her condition. (Tr. 166.) A review of the record
belies these findings.
The evidence before the ALJ shows that over a four-year period, plaintiff
visited her treating psychiatrist, Dr. Malik, on no less than eighteen occasions,
during which time her psychotropic medications were repeatedly adjusted,
including consistent increases in dosages because of continued symptoms despite
treatment.23 Plaintiff’s “failure” to see Dr. Malik for a five-month period in 2010
does not constitute a failure to comply with treatment such that her complaints are
not credible. The record shows that no appointments with Dr. Malik were
scheduled during this time, and plaintiff otherwise saw this doctor on average
about every three months. In addition, the ALJ cites to Dr. Malik’s treatment
records from April 2010 and from February and April 2011 to support her
statement that plaintiff’s “physicians noted her failure to take her medication[.]”
23
The additional evidence considered by the Appeals Council shows continued treatment by Dr.
- 43 -
(Tr. 166, citing the administrative record at Exh. 13F/2 and 17F/1.) A review of
these records, however, shows them not to contain any such notes or any evidence
that plaintiff failed to comply with prescribed treatment. (See Tr. 563 (Exh.
13F/2), 587 (Exh. 17F/1).) Finally, the record shows that, upon Dr. Malik’s
recommendation that plaintiff seek counseling, she indeed began such counseling
with Ms. Wessler in July 2011 and saw her on at least eleven occasions through
December 2011. Although the relationship with Ms. Wessler may not necessarily
be characterized as lengthy, it was initiated following Dr. Malik’s recommendation
and was consistent (eleven visits over a five-month period) through the time of the
hearings before the ALJ. Such evidence runs counter to the ALJ’s statement that
plaintiff had no consistent relationship with a therapist. Where alleged
inconsistencies upon which an ALJ relies to discredit a claimant’s subjective
complaints are not supported by and indeed are contrary to the record, the ALJ's
ultimate conclusion that the claimant’s symptoms are less severe than she claims is
undermined. Baumgarten, 75 F.3d at 368-69.
In light of the above, it cannot be said that the ALJ demonstrated in her
written decision that she considered all of the evidence relevant to plaintiff's
complaints or that the evidence she considered so contradicted plaintiff's subjective
complaints that plaintiff’s testimony could be discounted as not credible.
Malik through May 2012, with an increase in the frequency of visits.
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Masterson v. Barnhart, 363 F.3d at 731,738-39 (8th Cir. 2004); Baumgarten, 75
F.3d at 370. As such, the ALJ’s adverse credibility determination is not supported
by substantial evidence on the record as a whole. Because the ALJ’s decision fails
to demonstrate that she considered all of the evidence before her under the
standards set out in Polaski, this cause should be remanded to the Commissioner
for an appropriate analysis of plaintiff's credibility in the manner required by and
for the reasons discussed in Polaski.
B.
Opinion Evidence
Upon concluding that plaintiff’s subjective complaints were not credible, the
ALJ turned to the opinions rendered by Dr. Smith, Dr. Garriga, and Ms. Wessler
and determined to accord these opinions little weight inasmuch as they were
dependent upon plaintiff’s less-than-credible complaints. (Tr. 167.) Because the
ALJ’s adverse determination of plaintiff’s credibility was faulty, discounting
opinion evidence on this basis was error. See Singh v. Apfel, 222 F.3d 448, 452
(8th Cir. 2000).
To the extent the ALJ also discounted Dr. Smith’s opinion for the reason
that he had not treated plaintiff since 2009 (Tr. 167), this finding is directly refuted
by the record given Dr. Smith’s most recent recorded treatment of plaintiff in
January 2011. To the extent the ALJ discounted Dr. Garriga’s opinion inasmuch
as his treatment notes do not reflect his opined restrictions, “[i]t does not seem
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unusual that a physician would see no need to make specific treatment notes on an
unemployed patient’s need for work [restrictions] during a routine medical
examination.” Leckenby v. Astrue, 487 F.3d 626, 633 n.7 (8th Cir. 2007). This is
especially true here where plaintiff’s medical records with Dr. Garriga are replete
with consistent complaints of chronic stiffness and pain, chronic fatigue, and
worsening symptoms despite two years of treatment. See id. at 633. Indeed,
plaintiff’s treating psychiatrist observed these same symptoms and complaints of
pain and fatigue during her long-term treatment of plaintiff. It cannot be said
therefore, that the limitations opined in Dr. Garriga’s MIQ find no support in his
treatment notes or other evidence of record. Id.
Other than providing reasons to discount opinion evidence relating to
plaintiff’s physical impairments, the ALJ’s RFC analysis contains no discussion or
recitation of any evidence as it relates to plaintiff’s physical RFC, that is, what she
is able to do despite her physical impairments. “[D]rawing a conclusion regarding
credibility is not equivalent to proving by medical evidence that a claimant has the
residual functional capacity for other work.” Estabrook v. Apfel, 14 F. Supp. 2d
1115, 1122 (S.D. Iowa 1998), cited approvingly in Graham v. Colvin, No. 4:12-cv00863-SPM, 2013 WL 3820613, at *7 (E.D. Mo. July 23, 2013) (memorandum
opinion). The ALJ made a similar error as was found in Estabrook—that is “under
the guise of a credibility finding[. . .she] substitute[d] her judgment for that of the
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physicians.” Estabrook, 14 F. Supp. 2d at 1122. It is the law of the Eighth Circuit
“that the ALJ must not substitute [her] opinion for those of the physicians.” Ness
v. Sullivan, 904 F.2d 432, 435 (8th Cir. 1990). The ALJ’s RFC assessment must
discuss and describe how the evidence supports each conclusion and must cite
specific medical facts and nonmedical evidence in doing so, as well as resolve any
material inconsistencies or ambiguities in the evidence of record. Soc. Sec. Ruling
96-8p, 1996 WL 374184, at *7 (Soc. Sec. Admin. July 2, 1996). The reports from
the plaintiff’s treating physicians all contain objective medical findings, as well as
conclusions that the plaintiff is not malingering. (Dr. Garriga’s Multiple
Impairment Questionaire dated May 17, 2010,Tr.536-43; Dr. Smith’s Multiple
Impairment Questionaire dated January 4, 2011, Tr. 579-86; and Dr. Wessler’s
Psychiatric/ Psychological Impairment Questionaire dated December 23, 2011, Tr.
651-58.)
With respect to opinion evidence relating to plaintiff’s mental impairment,
the ALJ determined to discount Ms. Wessler’s PPIQ reasoning that if plaintiff were
as limited as Ms. Wessler opined, she would be hospitalized or meet the listings.
The ALJ further opined that if Ms. Wessler believed plaintiff’s complaints, “she
should have referred her” for more intensive treatment, prescription adjustment, or
hospitalization. (Tr. 167.) As noted above, however, an ALJ is not permitted to
“play doctor” and substitute her opinion for that of a medical professional. See
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Pate-Fires, 564 F.3d at 946-47 (citing Rohan, 98 F.3d at 970); Ness, 904 F.2d at
435.
To support her mental RFC assessment, the ALJ credited and gave great
weight to the opinion of the State agency psychological consultant, Kyle DeVore,
who opined in July 2010 that plaintiff had the mental RFC to perform simple,
repetitive tasks with limited contact with the public. (Tr. 167-68.) As noted by the
plaintiff, however, at the time Dr. DeVore rendered this opinion, he did not have
available to him the complete treatment records from Dr. Malik, any treatment
records from Ms. Wessler, nor Ms. Wessler’s opinion evidence. For the following
reasons, according great weight to the opinion of this State agency consultant,
while erroneously discounting the opinion of plaintiff’s treating source, was error.
Opinions of non-treating, non-examining sources ordinarily do not constitute
substantial evidence on the record as a whole and are generally accorded less
weight than opinions from examining sources. Vossen v. Astrue, 612 F.3d 1011,
1016 (8th Cir. 2010); Wildman v. Astrue, 596 F.3d 959, 967 (8th Cir. 2010). This
is especially true when evidence contrary to the non-examining source’s opinion
exists in the record. See Davis v. Schweiker, 671 F.2d 1187, 1189 (8th Cir. 1982).
When evaluating the opinion of a non-examining source, the ALJ must evaluate
the degree to which the opinion considers all of the pertinent evidence, including
opinions of treating and other examining sources. Wildman, 596 F.3d at 967; 20
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C.F.R. § 404.1527(d)(3) (2011). In addition, where the non-examining source did
not have access to relevant medical records, the opinion is accorded less weight.
See McCoy v. Astrue, 648 F.3d 605, 616 (8th Cir. 2011).
Here, Dr. DeVore rendered his opinion in July 2010 and thus did not have
access to a number of significant medical records created thereafter that showed
additional psychiatric treatment, counseling sessions occurring weekly or every
other week, continual prescriptions for and adjustments to psychotropic
medications, plaintiff’s transient response and continued symptoms despite
medication compliance, and a suicide attempt. Because Dr. DeVore did not have
access to these relevant records when he rendered his opinion, the opinion of this
non-examining consultant is entitled to less weight. McCoy, 648 F.3d at 616. In
addition, Dr. DeVore did not have the opportunity to consider the opinion of
plaintiff’s treating mental health source inasmuch as such opinion was rendered in
December 2011, that is, seventeen months after Dr. DeVore’s opinion. The ALJ
did not consider Dr. DeVore’s lack of access to this opinion evidence and, as
discussed supra, provided an improper basis upon which to discount such
evidence. To accord great weight to Dr. DeVore’s opinion evidence in these
circumstances was error. See Wildman, 596 F.3d at 967; Davis, 671 F.2d at 1189.
C.
RFC Assessment
Because “[s]ubjective complaints . . . are often central to a determination of
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a claimant’s RFC,” Fredrickson v. Barnhart, 359 F.3d 972, 976 (8th Cir. 2004), an
ALJ’s RFC assessment based on a faulty credibility determination is called into
question because it does not include all of the claimant’s limitations. See
Holmstrom v. Massanari, 270 F.3d 715, 722 (8th Cir. 2001). This is especially
true where an ALJ fails to properly consider evidence of a claimant’s mental
impairment. See Pate-Fires, 564 F.3d at 944-45 (ALJ’s failure to properly
evaluate evidence of mental impairment resulted in RFC not supported by
substantial evidence); ); cf. Delrosa v. Sullivan, 922 F.2d 480, 485-86 (8th Cir.
1991) (failure to properly consider mental impairment may have resulted in
credibility analysis that failed to examine possibility that impairment aggravated
claimant’s sense of pain).
In addition, given the ALJ’s improper determination to discount the medical
opinions of plaintiff’s treating sources, coupled with her unsupported
determination to accord great weight to the opinion of a non-examining State
agency consultant, it cannot be said that the resulting RFC assessment is supported
by substantial evidence on the record as a whole. See generally Leckenby v.Astrue,
487 F.3d 626 (8th Cir. 2007).
VII. Conclusion
The ALJ failed to properly evaluate plaintiff’s credibility and improperly
analyzed the opinion evidence of record in this case, resulting in an RFC
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determination that was not supported by substantial evidence on the record as a
whole. The matter will therefore be remanded for further consideration.24
Although the undersigned is aware that upon remand, the ALJ’s decision as to nondisability may not change after properly considering all evidence of record and
undergoing the required analysis, see Pfitzer v. Apfel, 169 F.3d 566, 569 (8th Cir.
1999), the determination is nevertheless one that the Commissioner must make in
the first instance.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
REVERSED, and this cause is REMANDED to the Commissioner for further
proceedings consistent with this opinion.
A separate Judgment in accordance with this Memorandum and Order is
entered this same date.
/s/ Abbie Crites-Leoni
ABBIE CRITES-LEONI
UNITED STATES MAGISTRATE JUDGE
Dated this 23rd day of March, 2015.
24
The RFC determination must be based on some medical evidence in the record, Cox v. Astrue,
495 F.3d 614, 619 (8th Cir. 2007); and if a treating physician’s opinion is discounted, good
reasons for doing so. Holmstrom, 270 F.3d at 720; Prosch v. Apfel, 201 F.3d 1010, 1013-14 (8th
Cir. 2000).
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