Branch v. Colvin

Filing 25

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. A separate judgment in accordance with this Memorandum and Order will be entered this same date. Signed by District Judge Carol E. Jackson on 9/2/15. (JAB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GENEVA E. BRANCH,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

Case No. 4:14-CV-1188 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court for review of an adverse ruling by the Social Security
Administration.
I.

Procedural History

On May 19, 2011, plaintiff Geneva A. Branch filed an application for disability
insurance benefits, Title II, 42 U.S.C. § 401 et seq., with an alleged onset date of August
13, 2010. (Tr. 128-29). After plaintiff’s application was denied on initial consideration (Tr.
76-82), she requested a hearing from an Administrative Law Judge (ALJ). (Tr. 83-84).
Plaintiff and counsel appeared for a hearing on August 1, 2012. (Tr. 27-57). The
ALJ issued a decision denying plaintiff’s application on January 22, 2013. (Tr. 8-20). The
Appeals Council denied plaintiff’s request for review on May 1, 2014.

(Tr. 1-6).

Accordingly, the ALJ’s decision stands as the Commissioner’s final decision.1
II. Evidence Before the ALJ
A.

Disability Application Documents

In the Disability Report completed by plaintiff’s representative, Melissa Smith, on
June 15, 2011, plaintiff’s medical conditions were reported to be migraines, sleeping
problems, insomnia, a hole in the heart (patent foramen ovale), thyroid problems,
1

Plaintiff died on July 17, 2014, after the filing of this action. Thereafter, her husband, Dennis
Branch, was substituted as the plaintiff to the action by motion. See Mot. & Order [Doc. ##12-13].

cholesterol, and asthma. (Tr. 142-52). Plaintiff was 5’4’’ and weighed 160 pounds. She
was taking medication for migraines, depression, her thyroid, reflux, cholesterol, and to aid
her sleep.
In the Function Report completed on June 21, 2011 (Tr. 153-63), plaintiff wrote that
her daily activities consisted of going to the living room and either sitting or lying down on
the couch, if she could get out of bed. In the past, plaintiff had taken care of the pets at
home, but her husband had since taken over the majority of required care.

Before the

onset of her medical problems, plaintiff used to drive to Kentucky to see relatives at least
once a month and used to watch her grandchildren often. Plaintiff’s head pain affected her
sleep by either waking her up or preventing her from falling asleep.

With regard to her

personal care, plaintiff wrote that her husband sometimes had to help her dress and bathe.
She reported that she had fallen off the toilet. Plaintiff did not cook or prepare meals. Most
of the time, plaintiff was not hungry because she felt sick. She did not drive because she
feared she “might kill someone.” (Tr. 154). Her husband had to remind her to take her
medicine.
Plaintiff wrote that she changed the cat’s litter box twice a month and tried to help
with laundry once every other month.

Her husband asked her to help around the house

more, but plaintiff stated that “the more I move around the worse my head hurts.” (Tr.
155). Plaintiff would go outside once a week if it was warm. However, since she started
falling down and losing her vision, her husband did not want her to go outside alone.
Plaintiff shopped for groceries once a month, but after a shopping trip she “can’t do
anything for 2 or 3 days.” (Tr. 156). She was capable of handling finances at home, but
needed to be reminded to pay the bills.
Plaintiff’s hobbies and interests included reading, watching television, working on
cross-stitch, and playing with her grandchildren. Every time she tried to engage in social
activities, however, plaintiff reported that she “hurt more” and the pain caused her to
“either leave early or have to be guided out.”

2

(Tr. 158).

Plaintiff noted that her health

conditions affected her ability to walk, talk, see, remember, complete tasks, concentrate,
understand, and follow instructions. Specifically, plaintiff wrote that her “equilibrium is off,”
which caused her to bump into walls or fall down; her speech became impaired and she
could not remember words; she struggled “to try to make someone understand what I want
to say;” her vision was either “fuzzy or like a kaleidoscope” and she sometimes lost
complete vision in her right eye; it sometimes felt “like people aren’t speaking the same
language” as she was; and her ability to concentrate was interrupted by pain.

(Tr. 158,

160). The farthest she could walk before needing a rest was from the bedroom to the couch
or the couch to the kitchen.

Plaintiff got along “very well” with authority figures, had never

been fired from a job, and could handle changes in routine. (Tr. 159).
Plaintiff’s Work History Report shows that she was employed as a title specialist at
GE Capital Mortgage from January 1996 to December 1999, and then as a service specialist
in accounts and transfers at Edward Jones from April 2000 to August 2010. (Tr. 164-67).
At Edward Jones she worked up to nine hours a day, sitting the entire time and using a
computer and a phone. At GE she also sat for eight hours a day, except when she moved
files on a cart.
In

the

Disability

Report

filed

for

plaintiff’s

appeal

(Tr.

169-74),

plaintiff’s

representative wrote that plaintiff continued to have severe migraines and described her
pain as debilitating. Plaintiff reported losing her vision at times when the pain was acute.
Also, plaintiff normally had to stay in bed for an extended period of time.
B.

Testimony at the Hearing

Plaintiff was 51 years old on the date of the hearing. (Tr. 32). She was 5’4’’ and
weighed 250 pounds. Plaintiff stated that her significant weight gain in the past year was
caused by her inability to be active. She reported that she was unable to drive because of
the impact her migraines sometimes had on her vision. (Tr. 33). Plaintiff had her GED and
had completed two years at a business college, but she did not receive a degree or

3

certificate.

She also had completed computer classes as an adult to maintain her work

level. (Tr. 34).
Plaintiff testified that she had last worked on August 13, 2010 as an accounts and
transfer specialist for Edward Jones.

She performed this job sitting down, talking on the

phone, and using a computer 95 percent of the time.

She never lifted more than five

pounds at a time. Plaintiff worked at Edward Jones for over ten years and left because she
could not drive or perform her job properly. She experienced migraines that were triggered
by flashes of light or noise with a severity ranging “from a four to a ten.” (Tr. 35). When
the migraines happened, she would call in sick or arrange for her daughter to pick her up
from work and ask permission to leave early. Before Edward Jones, plaintiff worked as a
title specialist at GE Capital Mortgage for ten years, researching titles on a computer and by
phone. (Tr. 36-38). The job involved some loading or pushing stacks of files on a cart and
lifting a maximum of 10-15 pounds.
At the time of the hearing, plaintiff had been receiving pain medication and
treatment for her migraines at a clinic in Chicago for more than a year. (Tr. 40-42). She
reported that the treatment she received had helped, since previously she could not stand
any noise, light, or being around others, and remained “curled up in a ball” on her bed. (Tr.
42). The medications she currently took made the pain more tolerable, but she stated that
her migraines were still at “a level 10” two to three times a week and were “never lower
than 4.”

(Tr. 42).

Plaintiff also reported that she saw a psychiatrist to help with her

inability to sleep caused by the pain. She stated that she was on her “third day today of not
being able to sleep.” (Tr. 43). When her medication worked, she slept for 12 hours straight.
She also saw a medical provider for her asthma, thyroid, and cholesterol.
On a typical day, plaintiff reported that she didn’t do “much of anything.” (Tr. 44).
She stated that her “own footsteps bang through [her] head,” so she did not move around
much. Because of her inability to move, she no longer paid the bills, did laundry, or feed
the pets.

She also did not read, cross-stitch, or etch glass like she used to, because

4

concentrating for long periods caused her migraines to increase. (Tr. 45). Plaintiff could sit
for only 30 minutes at a time before her pain increased. When taking showers, she needed
to sit down at least twice before she could finish bathing, and she sometimes had trouble
getting out of the tub. (Tr. 46). At least twice a week she didn’t get out of bed because of
the severity of her migraines. Her husband handled most of their shopping.
Plaintiff reported feeling nauseous 2 to 3 times a day. To alleviate or manage her
migraines, plaintiff had to “get away from everyone,” turn off the lights, television, and
radio, and lie down.

(Tr. 47).

Before she began taking medication for her migraines,

plaintiff stated that she was not coherent and her words “would get all twisted up.” (Tr.
48). She stated that she had tried everything she could think of to alleviate the migraines
so that she could work because she loved her job. “Just about everything” made her pain
worse now. (Tr. 49). Plaintiff’s attorney asked her if she would be able to work at a lowstress job without extensive mental demands where she could take breaks in the morning,
at lunch, and in the afternoon, get up and move around during the day if she needed, and
miss one day a month from work. Plaintiff responded that there was “no way I would be
able to do that,” because her migraine was constant, ranging from a “level of 4 to 10 and
above.” (Tr. 50).
Delores Gonzalez, a vocational rehabilitation counselor, provided expert testimony
regarding the employment opportunities for an individual of plaintiff’s age, education and
work experience.

(Tr. 52).

Gonzalez classified plaintiff’s past work as a “transfer clerk,

accounts representative” as light, semi-skilled work, but sedentary as performed by
plaintiff, and the position of a title specialist as light, semi-skilled work, but again sedentary
as performed by plaintiff.

(Tr. 54).

The ALJ posed a first hypothetical to the vocational

expert of a person capable of performing at the light exertional level, limited in that he or
she is unable to operate a motor vehicle, can only have occasional exposure to hazards such
as unprotected heights and moving mechanical parts, and is limited to performing simple,
repetitive tasks.

The vocational expert testified that such a person would not be able to

5

perform any of plaintiff’s past relevant work, but could perform work as an order caller or
mail sorter.
In a second hypothetical, the ALJ asked Gonzalez to assume all of the limitations
from the first hypothetical and then also assume that the person would need to leave work
approximately two hours early twice a week due to a medical issue. (Tr. 55). Gonzalez
testified that such a person would not to be able to perform the jobs as an order caller or
mail sorter, and also would not be able to perform any other work in the regional or national
economy.
Plaintiff’s attorney then asked the vocational expert to consider the description of the
first hypothetical individual and add a limitation that the individual would miss two whole
days or more a month. Gonzalez testified that such a person would not be able to work
competitively, particularly during the probationary period of a new job. Upon inquiry as to
whether an individual who, due to pain and difficulty concentrating, was off-task a minimum
of 20 percent of the day could perform competitive employment, the vocational expert
responded that a person needs to be on task for two hour periods before taking short
breaks. (Tr. 56).
C.

Medical Records

Plaintiff was first evaluated for headaches on June 12, 2009 at Metropolitan
Neurology, Ltd. by Richard A. Head, M.D. (Tr. 212-13). She reported 1-2 migraines a week
with some nausea. She stated she would see spots at times, particularly in her right eye.
The headaches had started in her teenage years.

Maxalt2 had not helped.

Relpax3 had

helped some, but did not stop the headaches. When her headaches worsened, she used
Tylenol and ice packs. Her headaches were worse during storms and with increased stress.

2

Maxalt, the brand name for Rizatriptan, is a selective serotonin receptor agonist used to treat the
symptoms of migraine headaches. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a601109.html
(last visited June 30, 2015).
3
Relpax, the brand name for Eletriptan, is also a selective serotonin receptor agonist used to treat the
symptoms of migraine headaches. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a603029.html
(last visited June 30, 2015).

6

She reported having a scan of her head a few years ago that was normal.

Her family

history indicated that her mother also had had migraines. Upon physical examination, Dr.
Head noted that plaintiff was overweight for her height, and her speech was fluent and
appropriate. Cranial nerve testing showed her visual fields to be full. Sensory testing was
normal.

Dr. Head opined that plaintiff appeared to be having common migraines and

instructed her to avoid caffeine as much as possible.

He also suggested plaintiff take

Topamax4 at bedtime and provided her a prescription for Imitrex.5 Plaintiff called Dr. Head
on August 3, 2009 and reported that her headaches were unchanged on Topamax, and she
did not feel that the Imitrex was working as desired.

(Tr. 211).

Dr. Head instructed

plaintiff to increase her use of Topamax, and if that failed, he would try something different
when saw her for a follow-up appointment.
Plaintiff again saw Dr. Head for a follow-up evaluation for her migraines on
September 4, 2009. (Tr. 209-10). Dr. Head noted that plaintiff was doing very well on the
increased dosage of Topamax. She occasionally had a headache but responded to Imitrex.
Dr. Head considered plaintiff’s migraines well-controlled at this time.

He planned to

continue her current medications and asked her to return for a follow-up in one year. When
plaintiff returned to Dr. Head on August 5, 2010 (Tr. 205-06), she stated that she was
having 1-2 headaches a week, lasting two days at a time. She also was not sleeping well,
had had some episodes of decreased right eye vision, difficulty understanding speech, and
numbness.

The doctor noted that he had not been contacted about these episodes, but

they apparently had been bothering her for several months. Plaintiff was taking 2-3 Tylenol
tablets several times a day. She also reported drinking about eight cups of coffee a day.
Dr. Head discussed plaintiff’s caffeine intake and told her she would not be able to get her
4
Topiramate, brand name Topamax, is an anticonvulsant that is used to prevent migraine headaches
but not to relieve the pain of migraines when they occur.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a697012.html (last visited on Jan. 13, 2015).
5
Imitrix, the brand name for Sumatriptan, is an additional selective serotonin receptor agonist used to
treat the symptoms of migraines that stops pain signals but does not reduce the number of
headaches. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a601116.html (last visited June 30,
2015). 

7

headaches under control unless she stopped.

Dr. Head also thought plaintiff might be

rebounding from the excessive amount of Tylenol she was taking. The doctor planned to
start plaintiff on Depakote6 and instructed her to follow-up in a month.
On August 12, 2010, plaintiff was admitted to the emergency department at St.
Anthony’s Medical Center. (Tr. 281-88). She complained of a headache for four days and
nausea.

She described the pain as throbbing, constant, and unrelieved despite use of

Tylenol. Her physical exam and urine test were normal. She was given Benadryl, Toradol,7
Reglan,8 and normal saline by IV. Three hours after being admitted, she was discharged in
improved condition.
During a follow-up appointment on August 17, 2010, plaintiff told Dr. Head that she
had been caffeine-free since her last appointment, except for two drinks. (Tr. 214). She
stated that she nonetheless had had headaches almost every day and had missed a lot of
work. The doctor noted that plaintiff had not improved as well as he expected. However,
plaintiff looked fine that day and stated she had been sleeping.

She complained of

intermittent sharp pains in the left temporal area around her eyes or in the back of her
head. On examination, plaintiff’s eye grounds were normal and her visual fields were full.
The doctor recommended blood tests and encouraged plaintiff to abstain from caffeine. An
MRI conducted that same day at St. Anthony’s Medical Center was normal.

(Tr. 207-08,

280, 353).
On August 23, 2010, plaintiff had a telephone conversation with Dr. Head during
which she reported that she still had constant headaches and was not sleeping at night. Dr.
Head explained to her that the MRI of her brain and her blood tests were normal. Plaintiff
was crying on the phone and stated that her headaches were ongoing day and night. She
6

Depakote, or Valproic acid, is also used to treat mania in people with bipolar disorder.
www.nlm.nih.gov/medlineplus/druginfo/meds (last visited on Oct. 27, 2009).
7
Ketorolac tromethamine, or Toradol, is “a nonsteroidal antiinflammatory drug administered
intramuscularly, intravenously, or orally for short-term management of pain[.]” See Dorland’s
Illustrated Med. Dict. 1966, 998 (31st ed. 2007).
8
Reglan is used to relieve nausea by speeding the movement of food through the stomach and
intestines. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a601158.html (last visited June 30,
2015). 

8

felt there had to be something physically wrong. With her normal exam results, Dr. Head
told her he strongly felt there was a stress component involved. Plaintiff and her husband
denied any stress. The only further test Dr. Head told her he could recommend was a spinal
tap to look for chronic infection, bleed, or increased pressure.

He scheduled her for the

procedure. (Tr. 215).
Plaintiff sought treatment at the emergency department of Barnes-Jewish Hospital on
September 4, 2010.

(Tr. 229-60).

She complained of constant migraine headaches for

three months, which consisted of piercing pain radiating around her entire head. She stated
that she had tried multiple medications and been to multiple emergency rooms in an
attempt to obtain relief, but had found none so far. An IV was initiated and plaintiff was
medicated with normal saline for hydration, Ketorolac7 for pain, and Prochlorperazine9 for
her headache. About an hour later, plaintiff stated that the pressure was much better, but
she continued to have sharp, stabbing pains. She was then given Diphenhydramine10 as a
prophylaxis and Droperidol11 for pain.

An hour later, plaintiff verbalized increased relief

from medication.
In a neurological consult at Barnes-Jewish Hospital, plaintiff stated that her previous
migraines before June were much more sporadic and she used over-the-counter medication,
ice and rest to treat them. Her recent headaches since June started building up and “just
did not go away.”

The frequency of the headaches had increased from once every few

months to a few times every week to daily headaches for the past 4-6 weeks.
headache

was

throbbing

now

with

associated

symptoms

of

nausea,

Her

photophobia,

phonophobia, photopsia, and blurry vision worsening with movement of her head.
Thunderstorms and weather changes made her headache worse. She reported drinking two
9

Prochlorperazine, also known as Compazine, is used to control severe nausea and vomiting and to
treat the symptoms of schizophrenia and anxiety.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682116.html (last visited on Sept. 1, 2011).
10
Diphenhydramine is used to relieve symptoms caused by hay fever, allergies, or the common cold.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682539.html (last visited July 1, 2015).
11
Droperidol is an antiemetic used to lessen or stop migraine pain.
http://effectivehealthcare.ahrq.gov/search-for-guides-reviews-andreports/?pageaction=displayproduct&productID=1716 (last visited July 1, 2015). 

9

cups of coffee a day. Although she tried stopping coffee for two weeks, she experienced no
benefit. She occasionally drank tea. The medical care provider noted that plaintiff could
have poor hydration. Plaintiff reported that the intensity of her headache had decreased a
great deal with the medications she received in the emergency room. Following blood tests,
chest x-rays, a CT scan, an EKG, and a normal examination, the treating physician
recommended she be discharged.

Plaintiff was diagnosed with a recurrent migraine

headache and instructed to follow-up with the neurology clinic in the following week.
In a letter dated September 13, 2010, Dr. Head wrote that plaintiff had called and
canceled the spinal tap that he scheduled.

(Tr. 216).

Plaintiff and her husband then

requested that her records be transferred to another physician and they insisted that Dr.
Head fill out FMLA paperwork for plaintiff.

Plaintiff’s records were transferred, but Dr.

Head’s secretary told plaintiff that the doctor would not complete FMLA paperwork for her if
she refused to follow-up with the test he had recommended or return to his office.
An echocardiogram of plaintiff’s heart from October 8, 2010 found a right to left
atrial shunt, and she was referred to James M. Perschbacher, M.D. at Metro Heart Group of
St. Louis, Inc. (Tr. 262-63, 266-67). Dr. Perschbacher determined that plaintiff’s abnormal
echocardiogram most likely pointed to a patent foramen ovale12 (PFO), which he noted is
present in up to 25% of the population. Plaintiff and her husband stated that they were
“desperate” for a fix for plaintiff’s migraine headaches and hoped that closure of her PFO
might be that fix. Dr. Perschbacher informed plaintiff that he thought it unlikely he would
be able to offer her closure, since his medical clinic did “not participate in any of the
migraine PFO closure studies.” A transesophageal echocardiogram on October 25, 2010 at
St. Anthony’s Medical Center confirmed a PFO at her atrial septum. (Tr. 272-73).

12

A patent foramen ovale is a hole between the left and right upper chambers of the heart, which
exists in everyone before birth, but sometimes fails to close naturally. The condition is not treated
unless there are other problems. http://www.nlm.nih.gov/medlineplus/ency/article/001113.htm (last
visited July 1, 2015).

10

At an appointment with Neera Sharda, M.D. on December 9, 2010, plaintiff reported
that she continued to have chronic, persistent, daily headaches.
neurological tests thus far remained negative.
possible

depression.

Dr.

Sharda

(Tr. 331-32).

All

She had been referred to psychiatry for

diagnosed

plaintiff

with

unspecified

acquired

hypothyroidism, hyperlipidemia, migraine, esophageal reflux, allergic rhinitis, and extrinsic
asthma, and instructed plaintiff to continue with her current medication regimen.
At her first appointment with a psychiatrist, Gautam Rohatgi, D.O. at Comtrea on
January 31, 2011, plaintiff reported that her neurologist believed her migraines were caused
by depression.

(Tr. 420-22).

She reported a history of migraines since childhood.

Numerous blood work studies as well as an MRI and EEG since August 2010 had all been
negative.

Plaintiff denied depression or loss of interest, although she stated she

experienced frustration, irritability, and the feeling of being overwhelmed given the
migraines. Plaintiff reported feeling claustrophobic in the interview and stated that in the
past, Prozac had been of benefit. She did not have a history of going to therapy. Her daily
activities depended upon her headaches and the strength of those headaches. Dr. Rohatgi
noted that during their conversation, plaintiff’s hands were gripping her forehead as if she
was in mild distress. Her speech was fluent and clear, her thought process was linear, and
her grooming and hygiene were appropriate.

Both her mood and affect were frustrated.

Dr. Rohatgi diagnosed plaintiff with claustrophobia and assigned her a Global Assessment of
Functioning (GAF) score of 60.13

He started plaintiff on Citalopram14 and suggested a

follow-up examination in four weeks.
At her next appointment with Dr. Rohatgi on February 28, 2011, plaintiff reported
that the Citalopram helped decrease her anxiety. (Tr. 418-19, 471-72). She also stated

13

A GAF of 51-60 corresponds with “moderate symptoms (e.g., flat affect and circumstantial speech,
occasional panic attacks) OR difficulty in social, occupational or school functioning (e.g., few friends,
conflicts with peers or co-workers).” American Psychiatric Association, Diagnostic & Statistical Manual
of Mental Disorders - Fourth Edition, Text Revision 34 (4th ed. 2000).
14
Celexa, or Citalopram, is prescribed to treat depression.
www.nlm.nih.gov/medlineplus/druginfo/meds (last visited on Nov. 6, 2009).

11

that she had been taking her friend’s Trazodone,15 which she found helped her sleep. Her
main symptoms, she reported, were her headaches, and all of her issues revolved around
the headaches.

Dr. Rohatgi increased plaintiff’s dosage of Citalopram, prescribed

Trazodone, and advised she discontinue use of Amitriptyline16 and Benadryl. At her followup appointment with Dr. Rohatgi on April 4, 2011, plaintiff reported no change in her mood
or anxiety and her sleep had improved to 6-8 hours of undisturbed sleep per night. (Tr.
416-17, 469-70). She had experienced no increase in headaches, but no decrease either.
Her mental status examination was normal, and Dr. Rohatgi again increased her dosage of
Citalopram.
At her appointment with Dr. Rohatgi on May 2, 2011, plaintiff stated that if her
headaches went away, she would feel significantly improved in her function and outlook.
(Tr. 414-15, 467-68). Plaintiff expressed frustration, irritability, agitation, sadness, fatigue,
and loss of function due to the headaches. Her husband stated that he believed plaintiff
was mildly depressed, but that it was due to the pain and headaches.

Dr. Rohatgi

diagnosed plaintiff with claustrophobia and depression not otherwise specified.

He

continued her on Citalopram, discontinued Trazodone, and added a small dosage of
Ambien17 for her insomnia.

At her follow-up appointment with Dr. Rohatgi on May 31,

2011, plaintiff reported that Dalmane18 had helped her stay asleep for eight hours, which
she had not experienced before.

(Tr. 412-13, 465-66).

She also reported continual

headaches and felt that all doctors had “washed their hands of her.”
followed through on recommendations to visit a headache clinic.

She had not yet

Dr. Rohatgi’s mental

status examination noted that she was sitting in her chair in very mild discomfort, and her
15

Trazodone is a seratonin modulator prescribed for the treatment of depression. It may also be
prescribed for the treatment of schizophrenia and anxiety.
www.nlm.nih.gov/medlineplus/druginfo/meds (last visited on Oct. 27, 2009).
16
Amitriptyline is a tricyclic antidepressant, sometimes used to treat eating disorders and postherpetic neuralgia. http://www.nlm.nih.gov/medlineplus/
druginfo/meds/a682388.html (last visited on Mar. 23, 2009). 
17
Ambien is used for the short-term treatment of insomnia. See Phys. Desk Ref. 2867-68 (60th ed.
2006).
18
Dalmane, the brand name for Flurazepam, is a benzodiazepine used to treat insomnia short-term.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682051.html (last visited July 1, 2015).

12

affect and mood were irritable. The doctor continued her with Citalopram, discontinued the
Dalmane, and added Triazolam19 to her regimen. He also again referred to her a headache
clinic.
At her next appointment with Dr. Rohatgi at Comtrea on July 5, 2011, plaintiff stated
that she was scheduled for a visit at the Diamond Headache Clinic the following week. (Tr.
410-11, 463-64).

She reported that she had been taking Triazolam and Dalmane to fall

asleep, and the doctor discussed with her how this was not his suggested medication
regimen. Dr. Rohatgi noted that plaintiff was cooperative, sitting in her chair smiling, had
fluent speech, appropriate affect, and was in a good mood.

He again instructed her to

discontinue Dalmane.
Plaintiff went to the Diamond Headache Clinic, Ltd. in Chicago for a week-long
evaluation under the care of Alex Feoktistov, M.D. on July 13, 2011. (Tr. 375-83, 442-50).
During the intake evaluation, she reported being under “extreme stress” related to finances
and sexuality. She smoked less than half a pack of cigarettes a day, consumed two caffeine
drinks per day, and socially used alcohol.

She complained of headaches every day and

reported visual auras that lasted up to two hours. She noted that while other medications
had not helped, Ketorolac had helped. Plaintiff complained of poor sleep quality, frequent
nighttime awakenings, vision loss earache, nosebleeds, sensitivity to smells, difficulty
breathing at night, skipping heart beats, fatigue, lightheadedness, shortness of breath,
coughing up blood and phlegm, chest discomfort, excessive snoring, loss of appetite,
nausea, bone pain, joint pain, dry skin, excessive perspiration, difficulty with concentration,
poor balance, inability to speak, vertigo, anxiety, cold intolerance, excessive thirst, lack of
sexual drive, and seasonal allergies. Her physical and mental examinations were normal.
Because outpatient treatment methods had been ineffective, Dr. Feoktistov admitted
her to the in-patient unit at the Diamond Headache Clinic for IV treatment.

19

She was

Triazolam is a benzodiazepine used on a short-term basis to treat insomnia.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a684004.html (last visited July 1, 2015). 

13

administered Toradol7 to alternate with Norflex,20 Benadryl, Zofran,21 Levothyroxine,22
Protonix,23 Simvastatin,24 Lyrica,25 Dolophine26 with Phenergan,27 and Depo-Medrol.28 She
was instructed to keep a headache calendar, follow a low tyramine diet, decrease caffeine
intake, lose weight, keep regular sleep habits, and keep her blood pressure low. Plaintiff
was discharged on July 20, 2011 in stable condition. (Tr. 452-54). Her general chemistry,
toxicology, hematology, urinalysis, and EKG tests had all came back negative or within
normal limits. George Nissan, D.O. noted that during her hospitalization, plaintiff’s acute
pain was managed mainly with simple non-narcotic analgesics.

Dr. Nissan requested

plaintiff be evaluated by the psychology department to assess the mental factors that could
be contributing to her headache pain. These factors included personality, mood, lifestyle,
coping styles, and the possible presence of comorbid disorders.
At her next psychiatric appointment with Dr. Rohatgi at Comtrea on August 4, 2011,
plaintiff stated that her headaches had diminished and going to the Diamond Headache
Clinic was of benefit. (Tr. 408-09, 461-62). She also stated, however, that she was upset

20

Norflex is an injectable drug indicated as an adjunct to rest, physical therapy and other measures
for the relief of discomfort associated with acute painful musculoskeletal conditions. See Phys. Desk.
Ref. 1824 (60th ed. 1824).
21
Zofran, or Ondansetron, is used to prevent nausea and vomiting caused by cancer chemotherapy,
radiation therapy, and surgery. http://www.nlm.nih.gov/med
lineplus/druginfo/meds/a601209.html (last visited Jan. 13, 2015).
22
Levothyroxine is a thyroid hormone used to treat hypothyroidism.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682461.html (last visited July 1, 2015).
23
Protonix, the brand name for Pantoprazole, is used to treat GERD.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a601246.html (last visited July 1, 2015).
24
Simvastatin, also known as Zocor, is indicated for the treatment of cholesterol. See Phys. Desk Ref.
2078 (60th ed. 2006).
25
Lyrica, or Pregabalin, is an anticonvulsant indicated for the treatment of neuropathic pain and
postherpetic neuralgia and for the management of fibromyalgia.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a605045.html (last visited on Mar. 9, 2011).
26
Dolophine, the brand name for Methadone, is used to relieve severe pain and prevent withdrawal
symptoms in patients who were addicted to opiate drugs.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682134.html (last visited July 1, 2015). 
27
Phenergan, or Promethazine, is used to relieve the symptoms of allergic reactions such as allergic
rhinitis (runny nose and watery eyes caused by allergy to pollen, mold or dust), allergic conjunctivitis
(red, watery eyes caused by allergies), allergic skin reactions, and allergic reactions to blood or
plasma products. http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682284.html (last visited on
Mar. 11, 2011).
28
Depo-Medrol, or Methylprednisolone, is a corticosteroid used to relieve inflammation.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a601157.html (last visited on Mar. 9, 2011). 

14

the clinic had labeled her as “passive.” She requested to restart Triazolam and Remeron,29
since her sleep had been disturbed.
follow-up in three months.

Dr. Rohatgi honored her request and asked her to

On a return office visit to the Diamond Headache Clinic on

August 26, 2011, plaintiff reported that she overall was doing better and felt more alert and
awake. (Tr. 386-90, 437-41). Dr. Feoktistov assessed her chronic migraines as improved.
While she was still having daily mild headaches and biweekly severe headaches, her severe
headaches were better responding to Toradol, Norflex, and Bendadryl. The doctor planned
to increase her dosage of Lyrica and instructed her to schedule a follow-up in three months.
On September 20, 2011, disability examiner Tamara Huggins completed a Physical
Residual Functional Capacity Assessment for plaintiff.

(Tr. 62-68).

Huggins found that

plaintiff did not have any exertional, postural, manipulative, visual, or communicative
limitations.

With regard to environmental limitations, Huggins determined that plaintiff

should avoid concentrated exposure to extreme heat, humidity, noise, vibration, and
hazards. Plaintiff was capable of unlimited exposure to extreme cold, wetness, and fumes,
odors, dusts, or gases. In support of her conclusions, Huggins explained that plaintiff had
migraines with auras, so she should avoid concentrated exposure to loud noise, vibration,
big machinery and heights.

Because plaintiff had extrinsic asthma, she should avoid

extreme heat and humidity.

Upon review of plaintiff’s medical records and subjective

reports, Huggins considered plaintiff’s statements partially credible since they were partially
consistent with the medical evidence in her file.
Also on September 20, 2011, James Spence, Ph.D. completed a Mental Residual
Functional Capacity Assessment for plaintiff. (Tr. 391-93). Dr. Spence found that plaintiff
was moderately limited in her ability to understand and remember detailed instructions, but
not significantly limited in her ability to understand and remember very short and simple
instructions or to remember locations and work-like procedures. Plaintiff was moderately

29

Remeron, or Mirtazapine, is prescribed for the treatment of depression.
http://en.wikipedia.org/wiki/Mirtazapine.

15

limited in her ability to carry out detailed instructions and maintain attention and
concentration for extended periods.

She was not otherwise significantly limited in her

sustained concentration and persistence abilities.

Dr. Spence also found no significant

limitations in plaintiff’s social interaction or adaptation abilities.

In considering plaintiff’s

medical records and subjective reports, Dr. Spence found plaintiff’s statements partially
credible since they were partially consistent with the medical evidence in her file.

To

conclude, Dr. Spence found that plaintiff retained the ability to perform simple repetitive
tasks on a sustained basis.
Dr. Spence also completed a Psychiatric Review Technique for plaintiff on September
20, 2011.

(Tr. 394-404).

claustrophobia.

Dr. Spence found that plaintiff had a depression disorder and

Plaintiff had mild restriction of daily living activities and mild difficulties

maintaining social functioning. She had moderate difficulties in maintaining concentration,
persistence and pace. Plaintiff had no repeated episodes of decompensation.
At her follow-up appointment with Dr. Rohatgi on October 27, 2011, plaintiff
reported that she had not been taking her sleeping medications as prescribed because she
thought she was running low on her medications. (Tr. 406-07, 459-60). Because of her
sporadic use of the medications, she had been having difficulty sleeping. Plaintiff’s exercise
habits were “quite poor,” and she did not follow the stretching routine provided by the
Diamond Headache Clinic. Plaintiff denied experiencing depression or loss of interest. Upon
examination, Dr. Rohatgi found that her grooming was appropriate, her dress casual, good
eye contact, fluent and clear speech, euthymic affect, and good mood. She was sitting in
her chair smiling, comfortable, and not in distress.

Dr. Rohatgi planned to decrease her

dosage of Triazolam and continue her with Remeron.
During a return visit to the Diamond Headache Clinic, plaintiff reported to Dr.
Feoktistov that she had been doing better. (Tr. 424-29, 431-36). Since her last office visit,
the frequency of her severe headaches had increased from twice to three times a week; the
frequency of her milder headaches had decreased from daily to 3 to 4 times a week.

16

Plaintiff complained of poor sleep quality, vision loss in one eye, nausea, difficulty
concentrating, an inability to speak, and anxiety.

Dr. Feoktistov planned to increase

plaintiff’s Lyrica dosage and reduce the Triazolam.

He instructed her to maintain her

headache calendar, follow a low tyramine diet, decrease caffeine intake, exercise, lose
weight, keep regular sleep habits, keep her blood pressure low, and follow-up in three
months.
On January 25, 2012, plaintiff had a follow-up appointment with Dr. Sharda for her
headaches. (Tr. 476-77). Her headaches varied from 5-10 on a 10-point intensity scale.
Rain, flashing lights, and noisy environments made them worse. She complained of seeing
halos and flashing lights in her field of vision. On March 2, 2012, Dr. Feoktistov noted that
plaintiff had improved since her last office visit.
insomnia, however.

(Tr. 455-56).

She was still having

The doctor increased her Lyrica, discontinued Remeron, and started

her on Pamelor30 at bedtime. On April 5, 2012, plaintiff told Dr. Sharda that she had not
noticed any change from taking Pamelor. (Tr. 474-75). She complained of daily headaches
with nausea, blurred, double vision, and at times flashes of light. She also stated that when
she walked a substantial amount, she experienced low back pain. Dr. Sharda noted that
plaintiff had experienced a recent abnormal weight gain.

An x-ray of her lumbar spine

taken that day showed mild degenerative changes. (Tr. 481).
At a follow-up appointment with her psychiatrist, Dr. Rohatgi, on April 6, 2012,
plaintiff denied depression and stated that events in her life brought her joy. (Tr. 457-58).
However, the doctor noted that her demeanor and expressions seemed sad.

Plaintiff

reported that she had been sleeping better with use of Triazolam. Dr. Rohatgi discussed the
benefits of taking an antidepressant with plaintiff, but she refused the prescription.

As

such, the doctor continued her on Triazolam and instructed her to follow-up in four months.
At a follow-up appointment with Dr. Sharda on July 2, 2012, plaintiff complained of low back

30

Pamelor, the brand name for Nortriptyline, is a tricyclic antidepressant.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682620.html (last visited July 1, 2015).

17

pain across her lumbar region and heartburn symptoms at night. She had been prescribed
Tessalon31 at an urgent care center a few days before and felt better.

Plaintiff still had

chronic headaches for which she continued to see a neurologist.
III.

The ALJ’s Decision

In the decision issued on January 22, 2013, the ALJ made the following findings:
1.

Plaintiff met the insured status requirements of the Social Security Act
throughout the period of the ALJ’s decision.

2.

Plaintiff had not engaged in substantial gainful activity since August 13, 2010,
the alleged onset date.

3.

Plaintiff had the following severe impairment: migraine headache.

4.

Plaintiff’s condition did not meet or medically equal a listing in 20 C.F.R. Part
404, Subpart P, Appendix 1.

5.

Since August 13, 2010, plaintiff had had the residual functional capacity (RFC)
to perform the full range of light work as defined in 20 C.F.R. 404.1567(a).

6.

Plaintiff was able to perform her past relevant work since August 13, 2010.

7.

Plaintiff was not disabled within the meaning of the Social Security Act.

(Tr. 8-20).
IV.

Legal Standards

 The Court must affirm the Commissioner’s decision “if the decision is not based on
legal error and if there is substantial evidence in the record as a whole to support the
conclusion that the claimant was not disabled.” Long v. Chater, 108 F.3d 185, 187 (8th Cir.
1997).

“Substantial evidence is less than a preponderance, but enough so that a

reasonable mind might find it adequate to support the conclusion.” Estes v. Barnhart, 275
F.3d 722, 724 (8th Cir. 2002) (quoting Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir.
2001)). If, after reviewing the record, the Court finds it possible to draw two inconsistent
positions from the evidence and one of those positions represents the Commissioner’s

31

Tessalon, the brand name for Benzonatate, is a cough suppressant.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682640.html (last visited July 1, 2015).

18

findings, the Court must affirm the decision of the Commissioner. Buckner v. Astrue, 646
F.3d 549, 556 (8th Cir. 2011) (quotations and citation omitted).
 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); Pate-Fires
v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009). The Commissioner has established a five-step
process for determining whether a person is disabled. See 20 C.F.R. § 404.1520; Moore v.
Astrue, 572 F.3d 520, 523 (8th Cir. 2009). “Each step in the disability determination entails
a separate analysis and legal standard.” Lacroix v. Barnhart, 465 F.3d 881, 888 n.3 (8th
Cir. 2006).
 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.

Pate-Fires, 564 F.3d at 942.

If the

claimant does not suffer from a listed impairment or its equivalent, the Commissioner’s
analysis proceeds to steps four and five. Id.
APrior to step four, the ALJ must assess the claimant=s residual functioning capacity
(>RFC=), which is the most a claimant can do despite her limitations.@ Moore, 572 F.3d at
523 (citing 20 C.F.R. ' 404.1545(a)(1)).

“RFC is an administrative assessment of the

extent to which an individual’s medically determinable impairment(s), including any related
symptoms, such as pain, may cause physical or mental limitations or restrictions that may
affect his or her capacity to do work-related physical and mental activities.” Social Security
Ruling (SSR) 96-8p, 1996 WL 374184, *2. “[A] claimant’s RFC [is] based on all relevant
evidence, including the medical records, observations by treating physicians and others, and
an individual’s own description of his limitations.” Moore, 572 F.3d at 523 (quotation and
citation omitted).

19

 In determining a claimant’s RFC, the ALJ must evaluate the claimant’s credibility.
Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Pearsall v. Massanari, 274 F.3d 1211,
1217 (8th Cir. 2002).

This evaluation requires that the ALJ consider “(1) the claimant’s

daily activities; (2) the duration, intensity, and frequency of the pain; (3) the precipitating
and aggravating factors; (4) the dosage, effectiveness, and side effects of medication; (5)
any functional restrictions; (6) the claimant’s work history; and (7) the absence of objective
medical evidence to support the claimant’s complaints.” Buckner v. Astrue, 646 F.3d 549,
558 (8th Cir. 2011) (quotation and citation omitted). “Although ‘an ALJ may not discount a
claimant’s allegations of disabling pain solely because the objective medical evidence does
not fully support them,’ the ALJ may find that these allegations are not credible ‘if there are
inconsistencies in the evidence as a whole.’” Id. (quoting Goff v. Barnhart, 421 F.3d 785,
792 (8th Cir. 2005)).

After considering the seven factors, the ALJ must make express

credibility determinations and set forth the inconsistencies in the record which caused the
ALJ to reject the claimant’s complaints. Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000);
Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998).
 At step four, the ALJ determines whether a claimant can return to her past relevant
work, “review[ing] [the claimant’s] [RFC] and the physical and mental demands of the work
[claimant has] done in the past.”

20 C.F.R. § 404.1520(e).

The burden at step four

remains with the claimant to prove her RFC and establish that she cannot return to her past
relevant work. Moore, 572 F.3d at 523; accord Dukes v. Barnhart, 436 F.3d 923, 928 (8th
Cir. 2006); Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005).
 If the ALJ holds at step four of the process that a claimant cannot return to past
relevant work, the burden shifts at step five to the Commissioner to establish that the
claimant maintains the RFC to perform a significant number of jobs within the national
economy. Banks v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001). See also 20 C.F.R. §
404.1520(f).

20

 If the claimant is prevented by her impairment from doing any other work, the ALJ
will find the claimant to be disabled.
V.

Discussion

Plaintiff argues that the ALJ’s RFC finding was improper, because the ALJ failed to
include any non-exertional limitations for her migraine headache symptoms, the ALJ’s
credibility assessment of plaintiff was not supported by substantial evidence, and the ALJ’s
conclusion that plaintiff could return to past relevant work was not supported by substantial
evidence.
A.

Limitations in the RFC Finding

After considering the objective medical evidence and other evidence in the record,
the ALJ determined that plaintiff retained the residual functional capacity to perform the full
range of light work, despite her migraine headaches. (Tr. 14). The ALJ recognized that the
medical record showed that plaintiff experienced migraine symptoms and regularly sought
intervention for migraine headaches, but the record did not support a finding that the
symptoms were disabling. Medical images of her brain did not show an abnormality, blood
tests revealed normal results, and neurological exams consistently demonstrated normal
results.
Plaintiff suggests that the ALJ erred in failing to add any additional limitations to her
RFC finding for plaintiff’s headache impairment, such as the need for additional breaks,
absences from work, or leaving work early. The Court’s review of the record confirms that
plaintiff had normal MRI and CT imaging studies of the brain, normal blood tests, and
normal neurological examinations.

See Teague v. Astrue, 638 F.3d 611, 615 (8th Cir.

2011) (finding that substantial evidence supported the ALJ’s decision when the ALJ found
“little evidence in the record” to support plaintiff’s claims of “pervasive occurrence of
debilitating headaches” when “CT scans and neurological examinations had not revealed
‘significant abnormalities or deficits’ that could be attributed to the headaches, nor did the

21

record document any medical findings of ‘specific limitations related to migraine
headaches’”).
Also, the symptoms plaintiff alleged interfered with her ability to complete tasks,
concentrate, understand people and follow instructions, including vision loss, impaired
speech, incoherence and memory problems, were consistently and expressly contradicted
by normal physical examinations in the medical record. On several occasions in the record,
such as when Dr. Head recommended a spinal tap, plaintiff refused suggested medical
treatment. Treating physicians opined that plaintiff’s migraines had a psychological aspect
when every physical test and examination conducted was negative or within normal limits
and plaintiff admitted to extreme stress but denied mental health issues and refused
antidepressant medication.

When plaintiff adhered to her doctors’ instructions and her

prescribed medication regimen, the record shows she experienced improvement from
treatment provided and medications prescribed.

As such, the work restrictions plaintiff

alleges the ALJ failed to include in the RFC finding were not supported by the record as a
whole.
B.

The ALJ’s Credibility Assessment of Plaintiff

Plaintiff next argues that the ALJ erred in her credibility assessment of plaintiff in the
RFC finding. The ALJ concluded that plaintiff’s subjective complaints regarding her condition
“lack[ed] credibility.”

(Tr. 15).

In making this determination, the ALJ noted that the

medical record reflected that plaintiff had experienced migraine headaches since at least
mid-2009, yet she engaged in substantial gainful activity for a year prior to her alleged
onset date in spite of this condition.

Furthermore, the ALJ noted that there was no

objective medical evidence of significant deterioration of her condition in the record.

No

physician had imposed restrictions on her, let alone opined that she was disabled.
In evaluating the credibility of a plaintiff’s testimony and complaints in the absence
of an objective medical basis, an ALJ is required to consider (1) the claimant’s daily
activities, (2) the duration, frequency and intensity of the pain, (3) precipitating and

22

aggravating factors, (4) dosage, effectiveness and side effects of medication, and (5)
functional restrictions. Polaski v. Heckler, 439 F.2d 1320, 1322 (8th Cir. 1984). The ALJ
“need not explicitly discuss each Polaski factor,” however.

Eichelberger v. Barnhart, 390

F.3d 584, 590 (8th Cir. 2004) (citing Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir.
2004)). The ALJ “only need acknowledge and consider those factors before discounting a
claimant’s subjective complaints.” Id.
Plaintiff reported to a neurologist, Dr. Head, that she had experienced chronic
headaches since her teenage years, and reported to a psychiatrist, Dr. Rohatgi, that she
had a history of migraines since childhood. (Tr. 212-13, 420-22). When she first sought
evaluation for her headaches worsening, the ALJ correctly noted that the date was June
2009.

For more than a year after this initial complaint, during which plaintiff received

treatment for her headaches, plaintiff continued gainful activity with the same employer
despite her symptoms.

The ALJ was entitled to consider this evidence in her credibility

assessment and disability determination. See Martise v. Astrue, 641 F.3d 909, 924 (8th Cir.
2011) (“[A] condition that was not disabling during working years and has not worsened
cannot be used to prove present disability.”) (quoting Naber v. Shalala, 22 F.3d 186, 189
(8th Cir. 1994)).
The ALJ also correctly noted the absence of evidence of significant deterioration of
her condition in the record, since she routinely reported improvement at follow-up
appointments in response to medications or treatment advice subsequent to her alleged
onset date. Also, treating physicians never placed functional restrictions on plaintiff in the
record, and instead instructed her to engage in physical exercises and regular activities.
Although medical providers were unable to fully prevent plaintiff’s migraines, prescribed
medications, such as Ketorolac, helped to decrease the severity of her symptoms. During
her week-long stay at the in-patient unit of the Diamond Headache Clinic, Dr. Nissan noted
that plaintiff’s pain was managed with simple, non-narcotic analgesics. (Tr. 452-54). As
such, the effectiveness of medication and treatment in managing plaintiff’s migraines

23

detracted from the credibility of her allegations of disabling pain. Lastly, the medical record
as a whole substantially supports the ALJ’s suspicion of the magnitude of plaintiff’s
assertions regarding her abilities to engage in activities of daily living. Thus, the ALJ did not
err in her credibility assessment for plaintiff.
C.

Past Relevant Work

Plaintiff also argues that the ALJ’s conclusion that plaintiff could return to her past
relevant work as a transfer clerk and title researcher is not supported by substantial
evidence. In reaching this conclusion, the ALJ noted that the vocational expert testified that
plaintiff’s past relevant work experience did not require more than a light exertional capacity
if the jobs were performed as customarily performed in the national economy, or if they
were performed as she performed them. (Tr. 15). A review of the hearing transcript shows
that the vocational expert testified that both of her past jobs required only a sedentary
capacity as described and performed by plaintiff. (Tr. 54). Based on the ALJ’s finding that
plaintiff retained the residual functional capacity to perform the full range of light work, the
ALJ concluded that plaintiff could perform her past relevant work.
Plaintiff contends that the ALJ failed to recognize that her past jobs were both highly
skilled based on their designated specific vocational preparation (SVP) skill levels and would
require concentrated attention and focus with accompanying stress.

Relying upon the

Dictionary of Occupational Titles (DOT), the vocational expert testified that both of plaintiff’s
past positions were “semi-skilled,” even though the jobs were classified at SVP levels of 5
and 6.

The Social Security regulations delineate work experience based skill level and

Social Security Ruling 00-4p states that “skilled work corresponds to an SVP of 5-9 in the
DOT.” SSR 00-4p, 2000 WL 1898704, at *3 (Dec. 4, 2000); 20 C.F.R. § 404.1568. Skill
levels of past relevant work are examined in disability determinations to assess the
transferability of developed skills to other occupational endeavors. Id.
However, plaintiff’s argument that she would be unable to continue to perform the
demands of her highly skilled past relevant work is unsupported by the medical evidence

24

and other evidence in the record.

For more than a year after she first began receiving

treatment for her migraines, plaintiff continued to work at her same position.

The only

evidence to support plaintiff’s contention that she had functional limitations in her ability to
maintain attention and focus arose from a discounted consulting examiner’s opinion.

Dr.

Spence, a state-agency psychologist who reviewed the record and completed a Psychiatric
Review Technique for plaintiff in September 2011, opined that plaintiff was limited to
simple, repetitive tasks.

(Tr. 394-404).

The ALJ provided “little weight” to Dr. Spence’s

opinion, because she found “nothing in the medical record [to] support[] it.”

(Tr. 14).

Instead, after reviewing the record as a whole, the ALJ determined that plaintiff had no
more than mild restrictions in her activities of daily living, maintaining social functioning, or
maintaining concentration, persistence and pace.
Substantial evidence in the record, as set forth above, supports the ALJ’s finding that
plaintiff could return to her past relevant work. The vocational expert’s misclassification as
to the skill level of her past positions amounted to no more than harmless error. See, e.g.,
Osborne v. Colvin, No. 8:14-CV-20, 2015 WL 1004311, at *16 (D. Neb. Mar. 6, 2015) (“For
judicial review of the denial of Social Security benefits, an error is harmless when the
outcome of the case would be unchanged even if the error had not occurred.”) (citing
Brueggemann v. Barnhart, 348 F.3d 689, 695 (8th Cir. 2003)). The record is fully developed
and substantially supports the ALJ’s finding that plaintiff was not disabled within the
meaning of the Social Security Act.
VI.

Conclusion

For the reasons discussed above, the Court finds that the Commissioner’s decision is
supported by substantial evidence in the record as a whole.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed.

25

A separate judgment in accordance with this Memorandum and Order will be entered
this same date.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 2nd day of September, 2015.

26