House v. Social Security Administration
Filing
27
MEMORANDUM: For the reasons set forth above, the decision of the Commissioner of Social Security is affirmed. An appropriate Judgment Order is issued herewith. Signed by Magistrate Judge David D. Noce on 3/16/2015. (KMS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
SHANNON HOUSE,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
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No. 4:13 CV 2301 DDN
MEMORANDUM
This action is before the court for judicial review of the final decision of the
defendant Commissioner of Social Security denying the applications of plaintiff Shannon
House for disability insurance benefits and social security income benefits under Titles II
and XVI of the Social Security Act (the Act), 42 U.S.C. §§ 401, 1381. The parties have
consented to the exercise of plenary authority by the undersigned United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the decision of the
Administrative Law Judge is affirmed.
I. BACKGROUND
Plaintiff was born on November 19, 1972. (Tr. 177.) She filed her applications on
July 14, 2009. (Tr. 127.) She alleged an onset date of June 8, 2009, and that she was
unable to work due to depression and narcolepsy, anxiety, and sleep disorders. (Tr. 127,
134, 177-211.) Plaintiff’s applications were denied and she requested a hearing before an
Administrative Law Judge (ALJ). (Tr. 61-64.)
An ALJ held a hearing on August 10, 2010 and on October 7, 2010 found plaintiff
was not disabled. (Tr. 21-35; 35-52.) The Appeals Council denied plaintiff’s request for
review on May 25, 2012. (Tr. 607.)
Thereafter, plaintiff commenced this action for judicial review. On defendant's
motion, this court reversed the Commissioner’s decision and remanded the case to the
Social Security Administration on February 7, 2013. (Tr. 611-12.)
On March 20, 2013 the Appeals Council remanded the case to the ALJ instructing
her to obtain updated medical evidence and opinion evidence from a vocational expert
regarding limitations on plaintiff’s occupational base. (Tr. 616-17.) Additionally, the
Appeals Council consolidated plaintiff’s July 23, 2012 Title II and XVI applications. (Id.)
The ALJ held a second hearing on August 19, 2013 and issued a second decision
on September 26, 2013 concluding that plaintiff was not disabled. (Tr. 536-53.) The
second decision of the ALJ is the final decision of the Commissioner now before the court
for review.
II. MEDICAL AND OTHER HISTORY
On May 24, 2006, plaintiff was seen by C. Nester, M.D. at Pulmonary Sleep
Consultants, Inc. due to plaintiff’s inability to stay awake at work and having difficulty
both falling and staying asleep. Plaintiff was referred for a sleep study, which was
completed on June 2, 2006. Plaintiff was diagnosed with narcolepsy, bruxing (grinding of
the teeth), periodic limb movement disorder, but no obstructive sleep apnea. Royal J.
Eaton, M.D. noted plaintiff failed to wear her prescribed bruxing appliance and needed to
lose weight. (Tr. 325-40.)
On September 20, October 11, and November 8, 2006, plaintiff was seen by Dr.
Nester for her recurring sleep issues. Dr. Nester prescribed Xyrem, a medication for
narcolepsy, and Adderall, a medication for attention deficit disorder. (Tr. 342-45.)
On February 7, 2007, Dr. Nester examined plaintiff and diagnosed narcolepsy,
reflux/ulcer, and restless legs. He modified her medications. (Doc. 346.)
On April 4, 2007, Dr. Nester stated that plaintiff complained that her own behavior
was abnormal (she was screaming unintelligibly), her memory was poor, she was unable
to work, and her mood was poor. He noted she was visibly withdrawn and appeared
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depressed. He diagnosed narcolepsy and sleep disorder. He prescribed plaintiff Zoloft, a
mood disorder medication. (Tr. 347.)
On April 12, 2007, plaintiff visited Washington University’s Sleep Medicine
Center. Kelvin A. Yamada, M.D., who diagnosed plaintiff with narcolepsy, disrupted
sleep, and excessive daytime sleepiness. He developed a plan of treatment for plaintiff.
(Doc. 359-60.)
On April 26, 2007, plaintiff returned to the Sleep Medicine and Dr. Yamada noted
his impressions as narcolepsy/cataplexy. Plaintiff reported significant improvement with
Ambien. The plan included Amy D. Bertelson, Ph.D., investigating explanations for
plaintiff's sleep behavior. (Doc. 356-57.) Dr. Bertelson examined plaintiff on June 5,
2007.
She diagnosed plaintiff with narcolepsy without cataplexy, due to a medical
condition. (Doc. 354-55.)
From September 10 through October 3, 2007 plaintiff saw her treating physician,
Jeffery Harris, M.D., F.C.C.P. for her continued issues with insomnia and hypersomnia.
Dr. Harris noted her latest medications as Klonopin, for sleep, and Ambien. Dr. Harris
requested plaintiff try Dexedrine then Lunesta for her inability to sleep in order to
determine which is better. (Tr. 725-27.)
On October 29, 2007, Dr. Harris wrote a letter regarding plaintiff’s ability to work,
given her sleep issues. He stated that “once her medications become therapeutically
effective, she should be able to stay awake and function adequately in the work place.” He
qualified this with “[i]t may be necessary for her to take naps during short times during the
day, and transportation will be an issue since she should not drive until this problem is
under slightly better control.” Dr. Harris stated “it may be possible for Ms. House to work
with the above accommodations . . . .” Dr. Harris stated he was still adjusting her
medications and "it would be my hope that she will be able to continue to work, but this
may or may not be the case, depending on her clinical response to certain interventions."
(Tr. 724.)
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On January 10, 2008, Dr. Harris increased plaintiff’s Adderall and Dexedrine. He
ordered a repeat sleep study to determine whether she really had hyper-somnolence and
difficulty maintaining sleep versus a purely psychosomatic problem. (Tr. 723.)
On February 4, 2008,
the repeat sleep study was conducted. The overall
assessment of Dr. Harris was plaintiff did not have significant obstructive sleep apnea and
no significant sleep disruption from periodic leg movements. Plaintiff’s sleep is initiated
relatively effectively but she has slightly long sleep latency, almost indicating
hypersomnia. Dr. Harris ordered another sleep study at the Mayo Clinic for a second
opinion. (Tr. 225, 722.)
On May 19, 2008, Dr. Harris noted plaintiff’s noncompliance with almost all of her
medications for the past couple of months. Dr. Harris stated that “at this point, she does
not want anything from me, and therefore, there is nothing I can do.” (Tr. 721.)
On July 24, 2009, the Mayo Clinic conducted a sleep study. The Mayo Clinic
ultimately diagnosed hypersomnolence, mild apnea hypopnea syndrome, periodic limb
movement disorder, and insomnia. The clinician suggested that plaintiff's insomnia and
hypersomnolence might be caused by depression. (Tr. 239-45, esp. 240.)
On August 21, 2008 plaintiff saw Georgia Jones, M.D., her treating psychiatrist.
Dr. Jones’s one-page progress notes sheet indicated that plaintiff's appearance was
average, her motor activity was average, her speech was coherent and relevant, her mood
was euthymic, her sleep was good, she had no suicidal or homicidal thoughts, she
exhibited some anxiety, her thought process was oriented X3, she was not delusional, and
her memory and insight were normal. She would need supportive psychotherapy. Dr.
Jones prescribed Prestiq, an anti-depressant. (Tr. 291.)
On September 3, 2008, plaintiff saw Dr. Harris. He noted plaintiff was not using
the CPAP machine, she is not taking the prescribed Mirapex, but
[s]he is taking Ambien-CR and is sleeping from 9:00 to 3:00 and is much
more alert and is not hyper-somnolent during the day, and again, I have no
explanation for this. She believes that her legs got worse on the Mirapex
and she does not want to take it. She believes it made her more sleepy.
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(Tr. 280.) Dr. Harris further stated, "A very strange picture with having multiple sleep
studies over the years at multiple places, and they essentially showed different things.
What is clear is that she is remarkably better on fewer medicines." (Id.)
Further, he
wondered whether she might be bipolar and was entering the manic stage. He noted that
she had a psychiatric department appointment soon. (Id.)
Between September 18, 2008 and February 11, 2009 plaintiff saw Dr. Jones three
times. Dr. Jones’s fill-in-the-blank notes for November 13, 2008 indicated that plaintiff's
grooming and eye contact were good; her posture and gait were within normal limits; her
speech was spontaneous, coherent, relevant, and logical; she exhibited no preoccupations,
perceptual distortions, thought disturbances, delusions, hallucinations, ideas of reference,
or suicidal ideation. Several of her entries on November 13 were unintelligible. (Doc.
289.) Similar entries were made for visits on February 11, 2009. Although some entries
on her notes of the June 9, 2009, were unintelligible, other portions indicated that plaintiff
was preoccupied, and had no perceptual distortions, thought disorders, or hallucinations.
While she noted plaintiff had increased guilt and tension, plaintiff had reduced
concentration, ability to enjoy, and ability to get started. (Tr. 287.) Dr. Jones's reports of
June 23 and July 8, 2009, had similar entries. (Tr. 285, 286.)
On April 3, 2009, Dr. Harris instructed plaintiff to focus on losing weight and
increasing her activity level.
Additionally, Dr. Harris noted that plaintiff was not using
her CPAP machine, but she is taking Ambien and is very much less depressed. He
concluded she has insomnia in spite of the medications she has tried; however. He noted
that Ambien is helpful. She was also diagnosed with hypersomnia for which she has
"tried everything." He prescribed Dexedrine. (Tr. 278.)
On June 5, 2009, Dr. Harris prescribed Nuvigil, a medication to prevent extreme
sleepiness; Astelin, an allergy medication; and prednisone and albuterol for her wheezing.
(Tr. 276.)
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On September 24, 2009, Nurse Practitioner Lisa Schultz completed a medical
report for the Missouri Department of Social Services. She diagnosed plaintiff with
narcolepsy, anxiety, and depression. Plaintiff was taking Ambien and Tranxene, both
prescriptions for sleep disorders. Nurse Schultz then opined that plaintiff has a permanent
disability that prevents gainful employment. (Tr. 363-64.)
On January 12, 2010 plaintiff was diagnosed with chronic rhinitis and sinusitis.
(Tr. 399.) On January 26, 2010, the Washington University Asthma and Allergy Center
instructed plaintiff to use a nasal saline wash in her sinuses due to her intolerance of nasal
sprays. (Tr. 402.)
On April 6, 2010, Dr. Harris observed plaintiff suffered from severe depression,
and in his opinion she still cannot function in the real world, but is improving. He stated
her sleeping issues continue and while she will not use her CPAP, she is “theoretically on
positional therapy.”
He believed her sleep impairments will likely worsen with her
increasing weight. (Tr. 421.)
On April 26, 2010, Dr. Jones completed a disability assessment in which she stated
that plaintiff is not able to sustain full time competitive employment. Dr. Jones did not
give any reason for this assessment, but merely referred to her. (Tr. 433.)
From June 9, 2009 to June 24, 2010 plaintiff saw Dr. Jones sixteen times.. (Tr. 25887, 410-19, 488-93, 971-82.)
On July 6, 2010, the Asthma and Allergy Center at Washington University
diagnosed plaintiff with chronic sinusitis, but noted plaintiff’s refusal to take any nasal
sprays due to nausea and her noncompliance with the prescribed daily saline nasal washes.
Bob Geng, M.D., prescribed Zofran for her chronic nausea. (Tr. 500-01.)
On July 22, 2010, plaintiff saw Dr. Jones and was assessed as having a Global
Assessment of Functioning (“GAF”) score of 35. (Tr. 514, 970.) A GAF score of 35
indicates either “some impairment in reality testing or communication” or “major
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impairment in several areas, such as work or school, family relations, judgment, thinking,
or mood.”1
On July 27, 2010, Dr. Jones completed a disability claim assessment and stated that
plaintiff’s symptoms include being sad, blue, hopeless, helpless, irritable, having poor
focus and concentration, difficulty making decisions, and hypersomnia. Plaintiff is on
medications. Dr. Jones assessed that plaintiff is unable to sustain competitive employment
and has had multiple decompensations; Dr. Jones did not describe the decompensations.
(Tr. 495-97.)
On September 14, 2010, Nurse Practitioner Libbs saw plaintiff for her wellness
examination.
She diagnosed
plaintiff with restless leg syndrome, obesity, a cyst,
narcolepsy, and irritable bowel syndrome. (Tr. 815-16.)
On September 23 and 30, 2010, plaintiff saw Licensed Social Worker Karen
Altemueller who made detailed counseling notes. (Tr. 528.)
On October 2, 2010, Dr. Harris saw plaintiff and reported plaintiff as moderately
unstable with erratic behavior and hypersomnia. He stated that she is disabled due to a
combination of her sleep issues and psychiatric issues and is now unemployed. Dr. Harris,
in reference to her assigned treatments, stated “she is doing very little that she has been
told to do.” (Tr. 423.)
On October 16, 2010 Christopher Bosche, M.D., saw plaintiff in Mercy Hospital’s
emergency room for depression after a denial of her first disability claim. A psychiatry
counseling was cancelled and plaintiff was sent home, when she insisted she was not
suicidal. (Tr. 1012-40.)
On December 2, 2010, LCSW Altemueller noted plaintiff had a severely depressed
mood. (Tr. 519.)
On December 3, 2010, Kevin F. Postol, D.D.S, saw plaintiff at Sleep Disorder
Dentistry, LLC, and recommended a dental device due to plaintiff’s noncompliance with
1
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 34-35
(4th ed. 2000) (“DSM IV”).
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her CPAP machine for her obstructive sleep apnea. On December 27, 2010, plaintiff
informed Dr. Harris that she would not buy the oral appliance because of its cost. (Tr. 1819, 714.)
Plaintiff saw Dr. Jones nine times during 2011 for psychiatric reasons. Her notes
appear to involve medication management and not counseling sessions like those
conducted by LCSW Atlemueller. (Tr. 954- 63.)
On August 3, 2011, Plaintiff saw Esperanza Cleland, M.D. at the Saint Louis
University Department of Internal Medicine and Pediatrics, Division of Adult and
Pediatric Rheumatology. He stated that plaintiff has fibromyalgia but had normal x-rays of
her lower back joints, left and right knees, right and left feet. The x-ray showed
osteoarthritis in both hands. On September 15, 2011, Dr. Cleland recommended water
aerobics and low impact exercise for her joint problems. (Tr. 741-60.)
On September 10, 2011, Todd M. Craig, M.D. started plaintiff on Topamax for her
chronic headaches. (Tr. 898.)
Plaintiff continued to see Dr. Jones throughout 2012 and per previously stated her
notes do not detail plaintiff’s medical issues and are substantially illegible. (Tr. 947-53.)
On January 18, 2012, Jamie T. Haas, M.D. saw plaintiff for a follow-up visit after
another sleep study was conducted on January 12, 2012. No obstructive sleep apnea or
narcolepsy was noted. Dr. Haas diagnosed depression, restless leg syndrome, irritable
bowel syndrome, sleep apnea, fibromyalgia, headaches, and obesity. Plaintiff’s current
medications included Ambien, Mirapex, Adderall, clorazepate dipotassium—for anxiety,
Fluocinonide—a cream for skin conditions, Lo Loestrin—birth control, and Neevo Dha—
a vitamin supplement. (Tr. 770-73.)
On April 17, 2012, Dr. Haas added Savella, for fibromyalgia, and Trileptal, an antiseizure medication, and increased plaintiff’s Adderall dose. (Tr. 762-65.)
On October 3, 2012, Dr. Craig changed plaintiff’s medication for chronic
headaches to Depakot. (Tr. 916.)
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A state ordered exam was performed on December 17, 2012 by Paul W. Rexroat,
Ph.D. In his December 31, 2012 report he found that plaintiff “is able to understand and
remember simple instructions. She can sustain concentration and persistence with simple
tasks. She has moderate limitations in her abilities to interact socially and adapt to her
environment.” She has moderate limitations in daily living activities. Dr. Rexroat
diagnosed her with major depression and anxiety and gave her a GAF score of 51. (Tr.
1041-44.) This GAF score indicates plaintiff has “moderate symptoms or moderate
difficulty in social, occupational, or school functioning.”2
Dr. Jones’s typed notes from May 8, 2013 indicate that plaintiff has a major
depressive disorder, but that she has a GAF score of 60. Dr. Jones had assess plaintiff with
this score on January 21, 2013, December 21, 2012, and October 24, 2012. A GAF score
of 60 indicates a person has “moderate symptoms or moderate difficulty in social,
occupational, or school functioning.”3 (Tr. 1096-1106.)
On June 26, 2013, Dr. Haas completed a social security disability assessment and
stated plaintiff’s narcolepsy and insomnia were controlled by medications. Furthermore,
the doctor opined that plaintiff has no work related restrictions. (Tr. 1073-74.)
On July 25, 2013, Dr. Jones provided a social security disability assessment stating
that plaintiff’s mental impairments would inconsistently affect her work performance, but
provided little legible details as to why or how. (Tr. 1094-95.)
In an undated social security disability assessment, Dr. Harris stated that plaintiff
had hypersomnia with possible narcolepsy, insomnia, and mild sleep apnea. But he listed
no restrictions on her abilities to function and maintain employment. (Tr. 272.)
First ALJ Hearing
The ALJ held plaintiff’s first hearing on August 10, 2010. (Tr. 37-52.) Plaintiff
attended with her counsel present and testified to the following facts. She lives with her
2
3
Id.
Id.
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parents in Union, Missouri. She completed the twelfth grade and a year of business
college. Her last employment was with a mortgage company as a collection officer. She
also worked as a store manager, and as a hotel front desk clerk. (Tr. 40-41.)
She was diagnosed with mild sleep apnea and/or narcolepsy (the records are
conflicting), hyper-somnolence, and periodic limb movement, a major affective disorder.
With regards to her sleeping disorders she is not using her prescribed CPAP machine,
because she could not adjust to the dryness it caused her. She took several medications for
her sleep disorders, but stated they make her nauseous or extremely tired. She continues to
nap during the day and does not do much to help out around the house without getting
tired. (Tr. 40-45.)
She estimates her depression began in 2005 and has worsened. She described an
inability to concentrate and forgetfulness that prevented her from working. She is
currently seeing Dr. Georgia Jones for medication management but she is not seeing
anyone for counseling or therapy reportedly due to issues with Medicaid. She reports her
concentration and memory are still poor. She cannot be around people because she reports
being very nervous and uncomfortable. She has crying spells once or twice a day and does
not cope with stress very well. She claims her parents help her make all life decisions. (Tr.
45-47.) She does not visit with anyone and rarely leaves the house, except for her doctor
appointments and occasional shopping trips with her mother. (Tr. 49.)
Plaintiff testified she does not drive, although she does maintain a valid Missouri
driver’s license. She can sit for approximately an hour before having to walk around. She
can stand for only fifteen minutes and can possibly walk a quarter of a mile. She
approximates she can only lift between 15 and 20 pounds. (Tr. 48-50.)
Second ALJ Hearing
After remand from the district court for consideration of additional medical
evidence and the acquisition of a vocational expert’s (“VE”) testimony, the ALJ held a
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second hearing on August 19, 2013. (Tr. 562, 616-17.) Plaintiff attended the second
hearing and was represented by an attorney. (Tr. 568.)
According to plaintiff she sees Dr. Jones monthly and gets counseling from her
during visits that can last from fifteen minutes to an hour. Her crying spells occur three or
four times a week. She cannot concentrate, remember things beyond a few minutes, or
complete tasks. Also, plaintiff reports avoiding people. She continues to experience
significant side effects with her prescribed medications. She stopped seeing Dr. Harris and
now sees Dr. Haas. (Tr. 568-71.) Her lack of ability to sleep at night is causing her to be
lethargic during the day and take naps. She has recently been diagnosed with fibromyalgia
by Dr. Cleland, and it now hurts to sit, stand, or walk. She admitted not being in full
compliance with the medical orders of her doctors. She reports she has headaches three to
four times a week brought on by stress, anxiety, and depression. She is nauseous, dizzy,
and photophobic. The headaches “just go away” after three to four hours. Plaintiff
continues to have restless limb syndrome at night which disrupts her sleep. She was
prescribed an oral appliance, which she said she cannot afford at this time. She is currently
driving herself around to run errands and can still walk around a quarter of a mile. She can
stand for thirty minutes and lift around five to ten pounds. She reports it hurts to bend and
stoop, as well as climb stairs. She stated this is due to her loss of muscle tone from her
increasing obesity. (Tr. 574-80.)
Plaintiff states that she is not socializing at all, but the ALJ noted that she is on
birth control and she has reported to her doctor that she was sexually active as late as
April 29, 2013. Plaintiff first stated she had not socialized in seven to eight years, but then
changed her statement to not socializing for at least two years. The ALJ also questioned
plaintiff’s honesty with regards to how much her parents have done to assist her. Plaintiff
reported her parents have done everything for her since 2009, but plaintiff lived on her
own as late as December 2012. Plaintiff stated her mother comes over every day to assist
her when she did not live with them. (Tr. 581-84.)
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Vocational Expert Robin Cook testified at the hearing via telephone. Plaintiff
worked previously as a hotel manager, which is medium, skilled work; a hotel clerk, light
semiskilled work; a tax clerk, light semiskilled work; a retail manager, medium skilled
work; a glass framer, medium semiskilled work; and, a retail sales clerk, light semiskilled
work. The ALJ assumed limitations of light exertional work, avoiding ropes, ladders,
scaffolding, hazardous heights and machinery as well as only the ability to perform
unskilled work. The VE found with those limitations plaintiff could no longer perform any
of her previous work. (Tr. 585-88.)
However, given those limitations, the VE found plaintiff could perform as an office
helper, which is unskilled, light work with 1,810 positions in Missouri and 83,250
nationally; a recreation aid, which is unskilled light work with 4,460 state-wide positions
and 253,110 nationally; and, a housekeeping-cleaner which is unskilled and light work
with 19,790 jobs in Missouri and 877,980 nationally. (Tr. 588.)
Plaintiff’s counsel described a hypothetical person who needed breaks for rest and
lunch which could last two hours or longer instead of the typical fifteen-minute breaks or
thirty-minute lunch. The VE opined these limitations would mean a person could not
perform any job in the national economy, because it is not consistent with the demand for
competitive employment.
Plaintiff’s counsel then defined “moderate limitations” as activity not totally
precluded, but significantly impaired in terms of proficiency or the ability to sustain the
activity over the course of a workday or work week. Counsel asked if a person with such
“moderate limitations” in her ability to maintain attention and concentration; complete a
normal work week; interact appropriately with the general public; coordinate or work in
close proximity with others; or, respond appropriately to criticism, changes in the work
setting, or work-related stressors could sustain employment. The VE responded that a
person with those “moderate limitations” in that many areas would not be able to sustain
competitive employment. (Tr. 589-90.)
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III. DECISION OF THE ALJ
On September 26, 2013 the ALJ found plaintiff not disabled. (Tr. 539-53.) At the
first step the ALJ found that plaintiff met the insured status requirements through
December 31, 2014 and had not been engaged in substantial gainful activity since June 8,
2009, her alleged onset date. (Tr. 541-42)
At the second step the ALJ found plaintiff had severe impairments, that have more
than a minimal effect on her ability to engage in work: obesity, sleep apnea, periodic limb
movement disorder, recurrent sinus infections, chronic rhinitis, affective disorder, chronic
nausea, sleep disorder, recurrent headaches, and fibromyalgia. (Tr. 542.)
At step three the ALJ went through each impairment separately and compared
plaintiff’s symptoms to those listed in the Commissioner's List of presumptively disabling
impairments in 20 CFR Part 404, Subpart P, Appendix 1. The ALJ found none of her
disorders, alone or in combination met a presumptively disabling Listing.
Additionally the ALJ considered plaintiff’s mental impairments in relation to
“paragraph B” or “paragraph C” criteria4 and found they are also not satisfied.
Specifically, the ALJ found plaintiff has only mild restrictions in living her daily life and
maintaining social functioning; only moderate difficulty maintaining concentration,
persistence, and pace; and, has not had any periods of decompensation of extended
duration. (Id.)
The ALJ then considered the entire record and determined plaintiff had the RFC to
perform light work but must avoid climbing ropes, ladders, and scaffolds and avoid the
hazards of heights and machinery. Plaintiff was also determined to be able to understand,
remember, and carry out at least simple instructions. (Tr. 543.)
At Step Four, the ALJ found plaintiff unable to perform any past relevant work.
(Tr. 551.)
4
“Paragraph B and C” criteria are listed in 20 C.F.R. Subpt. P, app. 1, § 12.00.
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Finally, at Step Five, the ALJ, with the testimony of the VE, found that plaintiff
could perform work that existed in significant numbers in both the national and state
economies. (Tr. 551-52.)
IV. GENERAL LEGAL PRINCIPLES
The court’s role on judicial review of the Commissioner’s decision is to determine
whether the Commissioner’s findings comply with the relevant legal requirements and are
supported by substantial evidence in the record as a whole. Pate-Fires v. Astrue, 564 F.3d
935, 942 (8th Cir. 2009). “Substantial evidence is less than a preponderance, but is enough
that a reasonable mind would find it adequate to support the Commissioner’s conclusion.”
Id. In determining whether the evidence is substantial, the court considers evidence that
both supports and detracts from the Commissioner's decision. Id. As long as substantial
evidence supports the decision, the court may not reverse it merely because substantial
evidence exists in the record that would support a contrary decision or because the court
would have decided the case differently. See Krogmeier v. Barnhart, 294 F.3d 1019, 1022
(8th Cir. 2002).
To be entitled to disability benefits, a claimant must prove she is unable to perform
any substantial gainful activity due to a medically determinable physical or mental
impairment that would either result in death or which has lasted or could be expected to
last for at least twelve continuous months. 42 U.S.C. §§ 423(a)(1)(D), (d)(1)(A),
1382c(a)(3)(A); Pate-Fires, 564 F.3d at 942. A five-step regulatory framework is used to
determine whether an individual is disabled. 20 C.F.R. § 404.1520(a)(4); see also Bowen
v. Yuckert, 482 U.S. 137, 140-42 (1987) (describing the five-step process); Pate-Fires,
564 F.3d at 942 (same).
Steps One through Three require the claimant to prove (1) she is not currently
engaged in substantial gainful activity, (2) she suffers from a severe impairment, and (3)
her disability meets or equals a listed impairment. 20 C.F.R. § 404.1520(a)(4)(i)-(iii). If
the claimant does not suffer from a listed impairment or its equivalent, the
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Commissioner’s analysis proceeds to Steps Four and Five. Step Four requires the
Commissioner to consider whether the claimant retains the RFC to perform past relevant
work (PRW). Id. § 404.1520(a)(4)(iv). The claimant bears the burden of demonstrating he
is no longer able to return to his PRW. Pate-Fires, 564 F.3d at 942. If the Commissioner
determines the claimant cannot return to PRW, the burden shifts to the Commissioner at
Step Five to show the claimant retains the RFC to perform other work that exists in
significant numbers in the national economy. Id.; 20 C.F.R. § 404.1520(a)(4)(v).
V. DISCUSSION
Plaintiff argues that the ALJ erred by both failing to give the proper weight and
specify the weight given to the various medical opinions. Furthermore, plaintiff argues the
ALJ improperly considered noncompliance with numerous prescribed treatments. This
court disagrees.
A. Weights of the various medical opinions
Plaintiff argues that the ALJ erred in failing to give “controlling weight” to
plaintiff's treating physician Dr. Georgia Jones’s opinions. Additionally, plaintiff argues
the ALJ was required to list the weight she gave to all of the medical opinions; in
particular the December 31, 2012 opinion of consulting psychiatrist Dr. Rexroat.
The opinion of a treating physician will be given “controlling weight” only if it is
“well supported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence in [the] record.” Prosch v. Apfel,
201 F.3d 1010, 1012-13 (8th Cir. 2000). The record, though, should be “evaluated as a
whole.” Id. at 1013 (quoting Bentley v. Shalala, 52 F.3d 784, 785-86 (8th Cir. 1997)). The
ALJ is not required to rely on one doctor’s opinion entirely or chose between the opinions.
Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011). Additionally, when a physician’s
records provide no elaboration and are “conclusory checkbox” forms, the opinion can be
of little evidentiary value. See Anderson v. Astrue, 696 F.3d 790, 794 (8th Cir. 2012).
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Regardless of the decision the ALJ must still provide “good reasons” for the weight
assigned the treating physician’s opinion. 20 C.F.R § 404.1527(d)(2).
The weight of other medical opinions, such as state consultant Dr. Rexroat, is
determined by considering: (1) the length of the treatment relationship; (2) the nature and
extent of the treatment relationship; (3) the quality of evidence in support of the opinion;
(4) the consistency of the opinion with the record as a whole; (5) whether the treating
physician is also a specialist; and, (6) any other factors brought to the ALJ’s attention. 20
C.F.R. § 416.927(c)(1).
The ALJ does not, however, need not make a specific finding the treating
physician’s opinion is not “well-supported by medically acceptable clinical and laboratory
diagnostic techniques” in order to refuse to give it “controlling weight.” Prosch, 201 F.3d
at 1014.
The ALJ gave “great weight” to Dr. Jones’s July 25, 2013 Assessment for Social
Security Disability, which stated that plaintiff only had mild impairments in work
performance and moderate impairments in social interactions and adaptation. (Tr. 549,
1094-95.) The ALJ examined Dr. Jones’s evaluation of plaintiff as a whole. (Tr. 548-49.)
It showed an improvement in plaintiff’s condition. Plaintiff was assigned a GAF score of
35 on July 22, 2010, which has since improved significantly. Dr. Jones assigned plaintiff a
GAF score of 60 on May 18, 2013, which was steady since October 24, 2012. (Tr. 514,
970, 1096-1106.) The two different Assessments for Social Security Disability Claim
forms differ significantly. The July 25, 2013 form shows significant improvement from
the earlier, April 26, 2010 Assessment. The ALJ considered the change between the two
assessments to make a determination of plaintiff’s mental condition. The 2010 assessment
stated plaintiff could not hold competitive employment due to decompensations, but did
not describe these decompensations. (Tr. 433-34.) Furthermore, Dr. Jones’s treatment and
counseling notes are summary in nature and not detailed. (Compare Tr. 285-91, 410-19,
488-93, 511-14, 947-67 with Tr. 517-28.)
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The ALJ also looked to other sources, including plaintiff herself, to assist in
determining the severity of plaintiff’s complaints. The ALJ considered both doctors
Rexroat and Kresheck’s opinions, but as consultative opinions they were given little
weight. This weight is due to the fact both doctors had only seen plaintiff once and both
visits were before the most recent assessment of plaintiff by Dr. Jones. (Tr. 549.) The ALJ
gave great weight to Dr. Jones’s July 25, 2013 assessment which incorporated plaintiff’s
entire treatment record, which showed improvement with time and medication. This
combined with the other medical assessments and the discounting of plaintiff’s own
statements, formed the ALJ’s opinion that plaintiff was not disabled by her mental
impairments.
Therefore, the ALJ’s determinations regarding the weight given to the medical
source opinions are based in substantial evidence in the record as a whole.
B. Impact of plaintiff’s noncompliance with treatments
Plaintiff argues the ALJ did not find her disabled, as required by SSR 82-59, and
improperly discredited her subjective complaints and testimony by considering plaintiff’s
noncompliance with various doctor recommended treatments.
Social Security Ruling 82-59 applies only to those cases where a claimant is
otherwise disabled and the ALJ denies benefits because of the claimant’s noncompliance
Owen v. Astrue, 551 F.3d 792, 800 n.3 (citing Holley v. Massanari, 253 F.3d 1088, 1092
(8th Cir. 2001)) (emphasis added). Nevertheless, the ALJ lawfully considered plaintiff's
noncompliance with the medical provider's recommended treatment or course of action.
When evaluating a claimant’s subjective symptoms, using the Polaski factors5, the
ALJ must make a credibility determination. See Ellis v. Barnhart, 392 F.3d 988, 995-96
(8th Cir. 2005). An ALJ’s findings regarding credibility will be upheld as long as they are
5
These factors are: 1) the claimant’s daily activities; 2) the duration, frequency, and intensity of
the condition; 3) dosage, effectiveness, and side effects of medication; 4) precipitating and
aggravating factors; and, 5) functional restrictions. Polaski v. Heckler, 739 F.3d 1320, 1322 (8th
Cir. 1983).
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“adequately explained and supported.” Id. at 996. The claimant’s own noncompliance
with medical recommendations and prescribed treatments may be considered for various
reasons, including credibility of subjective complaints. See e.g., Wildman v. Astrue, 596
F.3d 959, 968 (8th Cir. 2010) (discrediting claimant’s subjective complaints due to her
noncompliance with prescribed diet and medications); Owen, 551 F.3d at 800
(discrediting a medical opinion because it failed to also consider claimant’s
noncompliance); Brown v. Barnhart, 390 F.3d 535, 540-41 (8th Cir. 2004) (finding no
disability because claimant’s hypertension could be controlled with medication, which she
chose not to take). When considering noncompliance, the ALJ must consider why the
patient declined to follow the physicians’ recommendations. See O’Donnell v. Barnhart,
318 F.3d 811, 819 (8th Cir. 2003).
In this case the ALJ considered each Polaski. factor. The ALJ detailed plaintiff’s
daily activities and the factors which aggravated her conditions, as described by plaintiff
in her testimony at both her first and second ALJ hearings. (Tr. 544.) Then the ALJ
described, in length, plaintiff’s varying prescribed medications, and treatments prescribed
by plaintiff’s doctors as well as the side effects plaintiff reported the various medications
caused. (Tr. 544-49.) The ALJ then considered plaintiff’s lack of credibility with regard to
plaintiff’s own assessment of her depression, sleep problems, pain, and functional
limitations.
The ALJ assessed plaintiff with little credibility because of her inconsistent
testimony between the two hearings; her subjective complaints which were at odds with
the medical evidence; her subjective complaints which conflicted with admissions she
made to her physicians; and her noncompliance with medical advice and treatment in light
of the severity of her descriptions of her symptoms to be. (Tr. 549-51.) Although many
instances of her noncompliance were due to the medications’ effects on her, many were
not. For example, nearly every doctor plaintiff saw noted she needed to lose weight, get
more exercise, and eat healthier. (Tr. 278, 421, 423.) Many of her doctors expressed
frustration at her lack of persistence in trying new medications and complying with
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treatments. Dr. Harris stated on May 19, 2010, “[a]gain, she basically has been either off
of her medicines or noncompliant with her medicines for a couple of months. We
discussed this at length, and at this point, she does not want anything from me, and
therefore, there is nothing I can do.” (Tr. 721.) Dr. Hollander of Washington University’s
Allergy/Immunology Division stated on October 8, 2009, “[w]e have also explained to her
that she will need to try these medications for a full month to see if they actually have any
effect as using them only for a couple of days is not giving them a fair trial.” (Tr. 396.) Dr.
Wedner, again noted plaintiff’s failure to comply on July 6, 2010, “[w]e have tried
prescribing Nasacort nasal spray to the patient in the past; however, she says that any form
of nasal spray makes her nauseous and she is unwilling to take them. Therefore, she has
been prescribed daily saline nasal washes, although she admits to not doing the washes on
a daily basis and was instructed that it will be necessary for her to do so and she has
agreed to that.” (Tr. 501.)
The ALJ adequately explained why plaintiff’s subjective complaints were not
credible. The ALJ's decision is supported by substantial evidence.
VI. CONCLUSION
For the reasons set forth above, the decision of the Commissioner of Social
Security is affirmed. An appropriate Judgment Order is issued herewith.
S/ David D. Noce
f
UNITED STATES MAGISTRATE JUDGE
Signed on March 16, 2015.
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