Morrison v. Colvin
MEMORANDUM AND ORDER. (See Full Order.) Because substantial evidence in the record as a whole supports the ALJ's decision to deny benefits, I will affirm the decision of the Commissioner. Accordingly, IT IS HEREBY ORDERED that the decision of the Commissioner is affirmed. A separate Judgment in accord with this Memorandum and Order is entered this date. Signed by District Judge Catherine D. Perry on 9/21/2015. (CBL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CATHERINE J. MORRISON,
Case No. 4:14 CV 1420 CDP
MEMORANDUM AND ORDER
This is an action for judicial review of the Commissioner’s decision denying
Morrison’s application for disability insurance benefits under Title II of the Act, 42
U.S.C. '' 401 et seq., and application for supplemental security income (SSI)
benefits under Title XVI of the Act, 42 U.S.C. '' 1381 et seq. Section 205(g) of
the Act, 42 U.S.C. '' 405(g), provides for judicial review of a final decision of the
Commissioner. Morrison claims she is disabled from headaches, seizures, vertigo,
and posttraumatic stress disorder. Because I find that the decision denying benefits
was supported by substantial evidence, I will affirm the decision of the
Morrison protectively filed for benefits on March 28, 2013. On April 17,
2014, following a hearing, the ALJ denied Morrison’s applications for benefits.
The Appeals Council of the Social Security Administration (SSA) denied her
request for review on June 11, 2014. Therefore, the decision of the ALJ stands as
the final decision of the Commissioner.
Evidence Before the Administrative Law Judge
Application for Benefits
In her application for benefits, Morrison stated that she was unable to work
due to headaches, seizures, vertigo, memory loss, and posttraumatic stress disorder.
Morrison is five feet, five inches tall, and at the time she applied for benefits she
weighed 112 pounds. She completed high school and lives with her mother.
Morrison’s past work included grocery store clerk, marketing director, property
manager, receptionist, and a self-employed recreational park owner and painter.
Her listed medications included albuterol, clonazepam, fioricet, Flexeril, Flonase,
Keppra, meclizine, and a muscle relaxer. (Tr. 198-201).
In her accompanying Function Report, Morrison stated that her daily
activities depend on how she feels each day. On a good day, Morrison showers,
cleans house, and does laundry. However, if she has vertigo she is unable to do
anything without help and sleeps all day. Her daughter or mother cares for the
family pets. Morrison reported that she is now unable to drive, work, or have a
“normal lifestyle” because of her conditions. Morrison sleeps a lot, and her
medications make it hard to function. Morrison stays in her pajamas and only
bathes on days she feels “stable.” She doesn’t fix her hair or shave, and someone
cooks for her or “she doesn’t eat.” She sometimes needs help going to the
bathroom and needs reminders to take her medication. Morrison says she can no
longer prepare meals because of pain and lack of balance. She does laundry “very
infrequently.” Her mother and daughter do the housework. Morrison “seldom”
goes outside, and she does not drive or go out alone because of seizures, dizziness,
and headaches. She does not shop, but she is able to pay bills, handle a savings
account, count change, and use a checkbook. Morrison listed “taking care of her
grandson” as her hobby, but she is unable to do so without assistance. She watches
television daily and attends church sometimes. Morrison and her youngest
daughter have trouble getting along because Morrison is unable to do activities
with her. Morrison stated that her conditions affect her ability to lift, squat, bend,
stand, walk, climb stairs, see, remember, complete tasks, concentrate, understand,
follow instructions, and get along with others. She has trouble following verbal
instructions and handles stress very poorly. Morrison said she has a hard time
making simple decisions and is confused, anxious, tired, and depressed. She
claims that “no one understands how hard it is to not remember things” and reports
that her “problems continue to get worse.” (Tr. 231-38).
On November 19, 2010, Morrison obtained a psychiatric evaluation from
Psych Care Consultants. She reported a history of depression and anxiety.
Morrison reported feeling stressed because of traumatic events in her life.
Diagnostic impression was major depressive disorder, with recurrent cannabis
abuse and cocaine abuse in remission. Morrison was prescribed Lexapro and told
to refrain from marijuana use. (Tr. 854, 857).
Morrison saw her treating neurologist, Michelle Wood, D.O., on January 30,
2012. Dr. Wood noted that Morrison was “very out of it.” Morrison reported
feeling dizzy and stated that she had not been taking the full dose of lamictal until
recently. Morrison said that Dr. Wood had recently increased her dosage, but Dr.
Wood noted that she had actually increased the dosage in December of 2010.
Morrison told Dr. Wood that she has memory loss and “can’t remember [her] kids’
childhood.” She also reported her last seizure as being some time in 2011.
Morrison told Dr. Wood that she has headaches every day and that her vertigo is
triggered by moving her head or her eyes. Dr. Wood recommended weaning
Morrison off lamictal, starting her on Keppra, and checking for memory loss. (Tr.
On April 1, 2012, Morrison visited the emergency room complaining of
abdominal pain and cramping. Records noted a history of depression and seizures,
as well as polysubstance abuse. An abdominal CT revealed ovarian cysts, as well
as edema in the abdomen. The physician diagnosed abdominal pain and prescribed
Phenergan. (Tr. 556-69, 567).
Morrison saw Dr. Wood again on April 30, 2012. She reported losing her
insurance and said that she was going to see “the disability neurologist and
psychiatrist.” Morrison reported several traumatic life events, including being the
victim of an attempted rape. Morrison said she continues to have vertigo and poor
memory and has trouble focusing. Morrison also stated that Keppra made her
tired. Examination was within normal limits. Morrison was observed to be alert
and oriented, with normal tone, strength, and senses, symmetric reflexes, a steady
gait, and normal coordination. Diagnoses included epilepsy, unspecified, and
anxiety. Dr. Wood recommended continuing Morrison’s current seizure
medications and having her evaluated for memory loss and anxiety. (Tr. 451).
On May 4, 2012, Morrison underwent evaluation by consultative examiner
David Lipsitz, Ph.D., at the request of the state agency. Morrison drove herself to
the appointment and appeared appropriately dressed and groomed. Dr. Lipsitz
stated that her attitude was good and she was cooperative. Morrison told Dr.
Lipsitz she had epilepsy, vertigo, memory loss, depression, sleep issues, and racing
thoughts. Morrison also said she had attempted suicide in the past and been
hospitalized for anxiety and suicide attempts. Morrison was not being treated
regularly by a psychiatrist or psychologist, and she was not seeing a counselor or
therapist. Morrison admitted smoking marijuana occasionally. Morrison told Dr.
Lipsitz that she was attacked by a man who broke into her house in 2008.
Examination revealed depressed mood, flat affect, and memory problems, but no
current suicidal ideations. Her intellectual functioning was observed to be within
the “low average range.” Morrison’s concentration was good, but her judgment
and insight were poor. Morrison appeared to be preoccupied with her seizures, her
memory problems, and her stress. Dr. Lipsitz diagnosed post-traumatic stress
disorder and depression on Axis I and a Global Assessment of Functioning
(“GAF”) of 52. Dr. Lipsitz opined that Morrison needed ongoing psychiatric
treatment and medication. He stated that Morrison was able to handle her own
financial affairs and understand and remember instructions; however, she had some
difficulty concentrating and persisting with tasks and significant difficulty
interacting socially and adapting to her environment. (Tr. 444-47).
On May 24, 2012, Morrison underwent neuropsychological evaluation by
Michael Oliveri, Ph.D., for memory loss. Dr. Oliveri noted a history of epilepsy,
head injury, physical and emotional abuse, sexual assault, severe anxiety and
depression. Morrison reported ongoing symptoms including vertigo and poor
memory. Morrison told Dr. Oliveri that she was treated for depression with
antidepressant medication and psychotherapy in the past, but that it was not
helpful. Dr. Oliveri administered several tests to Morrison and observed that she
had adequate attention, but her responses at times were protracted and inconsistent
with item difficulty. Dr. Oliveri opined that the test results probably did not fully
represent Morrison’s current ability because her “performance was grossly
incompatible with neurologic reference groups.” In addition, Morrison’s “level of
symptomatic endorsement markedly exceeded neurologic reference groups, and . .
. psychiatric reference groups. Typically, such level of endorsement reflects
marked cognitive symptom over-focus and/or atypical performance on symptom
validity indicators (as in this case).” Morrison also “endorsed a much larger than
average number of somatic symptoms rarely described by individuals with medical
problems . . . [Her responses] may reflect elements of exaggeration (symptom
magnification).” Dr. Oliveri’s impressions included atypical neurocognitive
profile, incompatible with acquired brain-behavior dysfunction. He opined that
“[o]ftentimes, such a profile is referable to non-neurologic, pseudo-neurologic
dysfunction wherein psychological factors, longstanding behavioral factors, and
even motivational factors may be contributing to symptom performance and test
performance.” Dr. Oliveri’s impressions also included somatoform disorder and
depressive disorder. (Tr. 453-55).
On October 18, 2012, Morrison saw Joseph Beckmann, M.D., complaining
of fever and weight loss. Morrison said her concentration and memory were
preserved, but she reported a loss of appetite, some feelings of dysphoria, mild
anhedonia, and trouble falling asleep. Morrison claimed that she had never been
treated for depression and denied use of recreational drugs. She reported that her
seizures were “well-controlled.” Examination was within normal limits. Morrison
appeared awake, alert, and oriented, and she was appropriately groomed. She
made eye contact and had normal speech rate and volume. Her affect was neutral,
her insight was fair, and her judgment appeared good. Dr. Beckmann diagnosed
mild depression and prescribed medication. (Tr. 514-15).
Morrison followed up with Dr. Beckmann on November 2, 2012. At that
time, she reported “a gratifying improvement.” Her mood was stable, her appetite
was good, and she reported “functioning much better in the work environment.”
Morrison said she was “very happy with [the] medication” and told Dr. Beckmann
that it was helping her sleep at night with no side effects. Upon examination her
affect was bright and pleasant with normal flow and content of thought. Dr.
Beckmann told her he was leaving his practice soon and advised that she follow-up
with a different doctor in six months. (Tr. 511-12).
Morrison actually saw Dr. Beckmann again on December 4, 2012, after an
automobile collision. She reported muscle aches in her low neck and shoulder
area. Upon examination, Dr. Beckmann noted that Morrison appeared “mildly
uncomfortable” but with no active synovitis, a good range of motion in the neck,
and a normal range of motion in the shoulders. Dr. Beckmann gave her a work
excuse for two days and diagnosed muscle aching that should heal with
conservative therapy. (Tr. 507-08).
On February 7, 2013, went to the emergency room complaining of a severe
headache. Morrison reported that she took her boyfriend’s Oxycontin. Her
examination was normal, with no vision changes, neck pain or stiffness, and a
normal range of motion. She underwent a lumbar puncture, and the spinal fluid
was clear. Morrison was also given a CT scan of her head, which revealed mild
bifrontal and parietal cortical atrophy, unchanged, and was unremarkable without
acute intracranial findings. Morrison was given medication and released. (Tr.
On February 18, 2013, Morrison saw Dr. Wood for a headache. Morrison’s
current medications were listed as “none.” Her past medical history included
headaches, depression, epilepsy, anxiety, memory loss, and sleep disorder. (Tr.
Morrison went to a different emergency room on April 6, 2013, for
headaches. She reported having constant, pounding headaches for a couple months
and stated that her prescribed medications did not provide any relief. Physical
examination was within normal limits except for headache. Because Morrison
stated during her visit that “they usually give [me] Percocet,” hospital staff became
concerned about “drug-seeking behavior.” Morrison was given a short course of
Percocet and was warned about the danger of taking narcotics for chronic pain. It
was suspected that “there are more than one pain visit and other hospitals.” (Tr.
Morrison was taken to the emergency room on May 2, 2013, for a seizure.
She was transported to the emergency room by ambulance. Morrison refused a CT
scan and stated that she forgot to take her morning seizure medication “quite
often.” Morrison’s past medical history was noted to include polysubstance abuse.
Physical examination was within normal limits, with normal range of motion in her
back and extremities. (Tr. 727-32). On May 15, 2013, Morrison wrote a letter to
the state agency about the incident, claiming that she was discovered on the floor
by her family after a seizure. Morrison followed up with Jennifer Szalkowski,
M.D., about her seizure on May 7, 2013. Dr. Szalkowski’s treatment notes
indicate grand mal seizure, vertigo, headache, memory changes, and backache.
On April 8, 2013, and May 13, 2013, Morrison underwent chiropractic
treatment at Wentzville Chiropractic and Acupuncture Center. Morrison reported
pain in her neck and shoulder when looking down and with movement and
headaches. She denied having pain as the result of an accident during her April
visit but told the chiropractor that she had soreness in her back from a recent
seizure during her May visit. In May, Morrison reported that her headaches were
down and that she “felt much better overall.” Treatment notes from those visits
indicate headaches, muscle spasms, and thoracic segmental dysfunction. (Tr. 600,
On May 31, 2013, Morrison saw orthopedic surgeon Gregory Galakatos,
M.D., complaining of neck pain, headaches, left shoulder, and mid-back pain.
Records noted a history of epilepsy, as well as a fall on May 2, 2013. Morrison
reported numbness and tingling in the left arm, rated her neck pain at 9 out of 10,
and rated her shoulder and back pain at 7 out of 10. Upon examination, Dr.
Galakatos observed normal alignment of the cervical spine and a severely limited
range of motion, but with no erythema, lesions, masses, drainage, or spinous
process tenderness. Morrison’s motor strength was 5/5 to the shoulder abductors,
biceps, triceps, wrist flexors and extensors, thumb abductors, and intrinsic muscles
of hand bilaterally. Sensation in upper extremities was intact. Dr. Galakatos’
review of x-rays revealed mild degenerative changes in her left shoulder with no
evidence of acute fractures, lesions, or masses. Dr. Galakatos also found mild
degenerative changes in her thoracic spine, but no acute fractures, lesions, or
masses and good overall alignment. He recommended medication, therapy and
exercises. (Tr. 709-15).
On June 3, 2013, Morrison went to the emergency room after stepping on a
piece of wood. She reported that she was working in the garden when she was
injured. Examination was within normal limits, except for her foot. The wood was
removed from Morrison’s foot and she was sent home with a prescription for
Percocet. (Tr. 734-37).
On June 5, 2013, Morrison followed up with Dr. Szalkowski about her foot
pain, headache, and vertigo. Morrison reported chronic daily headaches and
episodes of vertigo lasting hours to days. Morrison stated she was having vertigo
during the office visit. Morrison’s examination was normal, with normal sensory
and motor movements. Morrison was oriented to time, place, and situation, and
she displayed appropriate mood and affect. Dr. Szalkowski started Morrison on
clindamycin, Fiorinal, oxycodone, and propranolol. (Tr. 668-72).
On June 26, 2013, Morrison went to the emergency room after claiming she
fell down 12 steps and hit her head. She denied loss of consciousness, nausea,
vomiting, or difficulty with coordination. Morrison had a forehead laceration, as
well as neck, back and knee pain. A CT scan of her head revealed no interval
changes. Morrison’s cut was treated and she was given Percocet. (Tr. 744-47).
On June 28, 2013, Morrison saw Dr. Szalkowski complaining of cold
symptoms. She also reported no improvement from her daily headaches despite
her low dose of propranolol. Morrison also stated that she had constant, moderate
shoulder pain that led to decreased mobility, joint tenderness and musculoskeletal
tenderness. Upon examination, Morrison displayed normal, bilateral strength in
her extremities, with normal results on the lift off and shoulder shrug tests. Dr.
Szalkowski reported diffuse tenderness in Morrison’s left shoulder and observed
that she was unable to lift it above 90 degrees. Dr. Szalkowski increased
Morrison’s dosage of propranolol and adjusted her other medications. (Tr. 65963).
Morrison went back to Dr. Szalkowski on July 10, 2013, for continued cold
symptoms. Examination was within normal limits. Dr. Szalkowski stopped
Morrison’s prescription for oxycodone and prescribed cheratussin and albuterol
sulfate. (Tr. 653-56).
On July 30, 2013, Morrison was taken to the emergency room. She told her
family that she was “not feeling right,” walked down the stairs, and became
unresponsive. A vodka bottle was found at the top of the stairs but Morrison
denied drinking alcohol. The EMT administered Narcan (used to reverse the
effects of narcotic drugs), and Morrison became more responsive. Morrison
arrived at the emergency room “drowsy but able to answer questions.” Morrison
stated that she had been sleeping all day and did not feel right. Morrison reported
that she woke up and discovered her Klonopin was missing and that it was stolen.
Morrison claimed that she was compliant with her Keppra regimen. The attending
physician believed that Morrison had a likely concussion and a prolonged syncopal
episode. Examination was within normal limits. Lab results came back positive
for cannabinoids and tricyclics. It was noted that Morrison smoked marijuana on
July 30, 2013. A CT scan of the head showed no interval changes. (Tr. 754-69).
On August 1, 2013, Morrison followed up with Dr. Szalkowski about her
emergency room visit. Morrison told Dr. Szalkowski that she tripped on the steps
and fell backwards. Morrison reported having chronic daily headaches, neck pain
from her fall, and vertigo. Physical examination revealed normal heart rate and
rhythm, normal breathing, normal palpation in the neck, no edema in the
extremities, some tenderness in the abdomen and cervical spine, moderately
reduced range of motion in the cervical spine, a small, well-healed forehead
laceration, and normal sensory and motor skills. Morrison was oriented and had
appropriate mood and affect. Dr. Szalkowski reviewed the CT and lab reports and
adjusted her medications. (Tr. 645-52).
On August 5, 2013, Morrison saw Dr. Wood. Morrison told Dr. Wood that
she had a headache and felt off-balance. She also reported having two falls. Dr.
Wood reviewed the emergency room records and noted that Morrison tested
positive for opiates and marijuana and had two negative CT head scans. Dr. Wood
noted that Morrison was “trying for disability.” (Tr. 609). Examination was
within normal limits. Morrison appeared normal, alert, and oriented. Dr. Wood’s
assessment included unspecified concussion, migraine, headache, vertigo, and
syncope. She recommended Morrison wear a Holter monitor. On August 7, 2013,
a Holter report was negative. Dr. Wood also recommended a tilt table evaluation
for Morrison’s vertigo and syncope. (Tr. 609-10, 614, 770).
Morrison sought treatment from Dr. Szalkowski on September 3, 2013, for
insomnia. Morrison told Dr. Szalkowski that her insomnia had worsened over the
last three weeks after she broke up with her boyfriend, and she admitted being
depressed and anxious. She denied head or facial trauma. Morrison also reported
that her post-traumatic stress disorder had worsened. Dr. Szalkowski started her
on trazodone. Physical examination yielded normal results, except that Morrison
was noted to have poor insight and judgment. (Tr. 637-41).
Morrison saw Dr. Szalkowski for a follow-up visit on September 9, 2013,
“to review the issues that she is seeking disability.” Morrison told Dr. Szalkowski
she was diagnosed with grand mal seizures in 2003 and was followed by Dr.
Wood, who had her on Keppra for her seizures. Morrison stated she has seizures 3
times per year. Morrison also reported having vertigo, chronic headache, posttraumatic stress disorder, and facial spasm. Morrison said she was on Percocet for
headaches. Upon examination, Morrison had tenderness in her left shoulder and
moderate pain with motion. The examination was otherwise unremarkable except
that Morrison appeared anxious. Dr. Szalkowski increased her dosage of
trazodone to help with insomnia. (Tr. 628-35).
On October 8, 2013, Dr. Wood provided the following handwritten notation
on the bottom of a facsimile cover page to Morrison’s lawyer:
Cathy’s limitation: cannot stand 3 ft off ground. Lift 5 lb above waist,
cook on front burners, not able to drive, no baths, no swimming.
On October 9, 2013, Morrison saw cardiologist Michael Missler, D.O., and
nurse practitioner Michelle Maloney, N.P. Dr. Missler reviewed the results of her
tilt table test on September 11, 2013, which was consistent with postural
orthostatic tachycardia syndrome (POTS). Dr. Missler explained the diagnosis.
Morrison reported a 6-9 month history of falls and passing out, with 3-4 episodes
of passing out since January. Morrison reported sustaining injuries, including
needing stitches in her head, and stated that she occasionally felt warm, clammy,
and lightheaded upon standing. She also claimed decreased energy, fatigue and
sleep issues, but no chest pain. Morrison stated that she was unable to drive or do
her usual daily activities because of how she feels. Morrison was given midodrine
for POTS. Morrison believed the Holter monitor test results were negative because
she had a “good day” on the day she took the test. Dr. Missler also reviewed a
recent EKG with normal results. Morrison’s physical examination was normal.
She was counseled about the importance of medication compliance and told to
return in six weeks. (Tr. 717-19). A second 30-day Holter monitor report issued
on October 9, 2013, and indicated “one complaint of syncope corresponding to a
normal sinus rhythm with rates between 87 and 94 beats per minute and the
remainder showing sinus rhythm to sinus tachycardia with occasional ventricular
ectopic events.” (Tr. 811).
Morrison went to the emergency room on November 10, 2013, complaining
of body aches, headaches, and sore throat. She was diagnosed with strep throat.
Morrison refused Tylenol and told the nurse to “go tell that doctor I want Dilaudid
. . . I have had a headache since February . . . .” A chest x-ray was within normal
limits and showed clear lungs, with no pneumothorax or pleural effusion. On
November 13, 2013, Morrison again visited the emergency room complaining of
worsening strep throat and headache for 3 days without relief from Percocet and
ibuprofen. Upon arrival, Morrison rated the severity level of her pain a “10” on a
scale of 1 to 10. Examination was within normal limits, except Morrison was
noted to be in moderate distress initially. Morrison was given medications and
released. (Tr. 814-53).
On November 19, 2013, Morrison saw Linda Therkildsen, D.O., for a
follow-up appointment about her strep throat. She also complained of
hypotension, headaches, and chronic insomnia. Dr. Therkildsen recommended that
Morrison continue her treatment and care with Dr. Missler for POTS, that she get a
neurological consultation regarding her grand mal seizures and headaches, and that
she continue her existing treatment for vertigo. Dr. Therkildsen recommended
melatonin for insomnia. Upon physical examination, Dr. Therkildsen noted that
Morrison appeared lethargic and chronically ill-looking, her abdomen was mildly
tender, she had a moderately reduced range of motion in her spine, her gate was
slow and unsteady, and that she appeared anxious, with inappropriate mood and
affect. Dr. Therkildsen advised Morrison to quit smoking and to decrease or
eliminate caffeine from her diet. (Tr. 867-70).
Morrison returned to Dr. Missler’s office on November 27, 2013, for her
event monitor results. The test revealed no evidence of arrhythmias associated
with Morrison’s lightheadedness. Nurse Practitioner Maloney suggested Morrison
see a psychiatrist for her depression and PTSD. Morrison reported continued
dizziness and lightheadedness, but she stated that her symptoms had improved with
medication. She also complained of increased fatigue, weakness, and chronic
sleep issues. Physical examination was within normal limits, except Morrison was
noted to be underweight. (Tr. 858-61).
On December 2, 2013, Morrison was seen by neurologist F. Duane Turpin,
D.O., for seizures. Dr. Turpin reported that Morrison had generalized seizures 0.5
times per year for about 10 years. Physical examination yielded normal results.
Dr. Turpin’s assessment included getting Morrison’s “Keppra level within the next
few months, particularly if she has a breakthrough event.” Morrison told Dr.
Turpin she was compliant with her medications regimen. (Tr. 863-66).
Morrison went to Dr. Therkildsen on January 16, 2014, for severe cough and
shortness of breath. Dr. Therkildsen’s assessment included acute bronchospasm
due to a viral infection, asthma with chronic obstructive pulmonary disease
(“COPD”) with exacerbation, cough, POTS, and seizure disorder. Upon
examination, Morrison was noted to be uncomfortable and lethargic with excessive
cerumen in the left and right ear canals, diffuse, decreased breath sounds with
tightness in the chest, very soft heart sounds, a tachycardia heart rhythm, and an
unsteady gait. Morrison was given medications and told to stop smoking. (Tr.
The next day, Morrison had a follow-up appointment with Dr. Turpin. Dr.
Turpin noted that Morrison’s seizures are “pretty well controlled,” and “the recent
blackouts are likely the POTS issue.” Morrison reported continued headaches.
Physical examination was within normal limits. Dr. Turpin continued her
medications. (Tr. 871-74).
After her hearing before the ALJ, Morrison was evaluated by consultative
neurosurgeon Dennis Velez, M.D., on March 7, 2014. Morrison told Dr. Velez
that she was diagnosed with seizures in 2003. She believed the seizures were
caused by stress, lack of sleep, or flashing lights. Morrison reported taking
medication and becoming seizure free. Morrison said she does not drive since this
diagnosis and is being treated for seizures with Keppra by her neurologist.
Morrison stated that she was diagnosed with PTSD in 2010, after being in a
relationship with a man who tried to assault her. She also had a boyfriend who
died. Morrison said that after these events, she had crying spells, difficulty
sleeping, irritability, and loss of appetite. She denied any suicidal ideations.
Morrison stated that she had difficulty focusing, getting out of bed, and has
minimal energy. Morrison reported that she was diagnosed with POTS in 2012
after a tilt-table evaluation. Morrison claimed memory loss, confusion, and
headaches resulted from POTS. Morrison said her POTS medications leave her
fatigued. She reported having occasional syncopal episodes but denied needing a
pacemaker. Morrison told Dr. Velez she was diagnosed with vertigo in 2005, after
reporting blurred vision, weakness, nausea, and the sensation of being intoxicated.
Morrison takes meclizine for her vertigo and claimed that she still had weekly
seizures. Morrison also reported a long history of headaches which occur
approximately three times a week. She takes Topamax, which makes it better.
Morrison stated she sometimes had intense pain from her headaches and is unable
to stand, lift, or bend over. Morrison also mentioned having memory loss, which
she attributed to PTSD. Her listed medications included Keppra, Klonopin,
temazepam, Topamax, loratadine, midodrine, propranolol, and compression socks
for POTS. Morrison denied any use of recreational drugs and stated her daily
activities varied, depending on how she feels. Morrison told Dr. Velez she had
headaches, vertigo, lightheadedness, muscle pain, cramps in her legs and arms,
syncope, polyuria, difficulties with memory, poor muscle coordination, emotional
problems, wheezing, cough, abdominal pain, nausea, and diarrhea. Morrison
stated that she could stand for 20 minutes before needing to lie down due to POTS.
Dr. Velez recorded Morrison’s blood pressure sitting, lying down, and
standing and noted that her heart rate remained relatively constant for all three
readings. Dr. Velez observed that Morrison was awake and alert and cried
throughout the exam. Morrison was accompanied by her mother, who stayed
throughout the interview and examination. Upon examination, Morrison had a
normal and regular heart rhythm, clear lungs, no edema, normal gait and stance
with no dysmetria and a negative Romberg’s, full strength in upper and lower
extremities, no difficulties or complaints of lightheadedness when standing, normal
nerve sensation and a negative straight leg raise test, good reflexes with negative
Phalen’s and Tinsel’s signs, no joint swelling, and a normal range of motion.
Morrison was able to bend over and touch her toes, squat and rise, walk on her
heels, touch her toes, put her arms above her head, and make a fist. She was
oriented in all spheres and could recall recent and remote events. Morrison did not
complain of a headache during the examination. Dr. Velez’s impression was that
there was “some” documentation to support her allegation of headaches, but that
she was given medication which reportedly controlled her symptoms and that there
was no evidence of “treatment failure.” He also opined that “there is no
documentation of multiple visits to the emergency department for intractable
headache, nausea, vomiting or blurriness of vision. This condition appears stable
right now medically.” Dr. Velez also stated that Morrison had not had a seizure
since taking Keppra and that “she had no relevant clinical findings related to this
allegation.” As for Morrison’s complaints of POTS and vertigo, Velez noted that
“[o]rthostatic examination was performed and the claimant had no significant
drops in her blood pressure. She had maintained her heart rate. She did not
become lightheaded.” Dr. Velez discounted Morrison’s allegation of memory loss,
although he noted that “no major workup had been done for this in the outpatient
setting.” With respect to Morrison’s claim of PTSD, Dr. Velez acknowledged that
Morrison cried during the examination and “expressed her frustration at her
multiple medical issues.” He opined as follows:
Based on all the information gathered today this claimant does not
appear to have any limitations as far as sitting, standing or walking.
[S]he does not appear to have any lifting or carrying limitation,
manipulative limitations and/or verbal or written communication
problems. If this claimant does indeed have a seizure disorder she
should continue on Keppra, should not drive a vehicle and should not
be working on unprotected heights.
In conjunction with the consultative examination, Dr. Velez also completed a
medical source statement. He indicated that Morrison could lift and carry 51 to
100 pounds frequently and up to 50 pounds continuously, as well as sit for six
hours, stand for five hours, and walk for four hours out of an eight hour workday.
Dr. Velez found no limitations on Morrison’s ability to use her hands and feet,
climb, balance, stoop, kneel, crouch, or crawl. Although he stated that she could
not work at unprotected heights, he felt Morrison was not limited in her ability to
move mechanical parts, operate a motor vehicle, or be exposed to humidity,
wetness, dust, odors, fumes, or vibrations. Dr. Velez opined that Morrison could
work in extreme cold and heat frequently. Dr. Velez believed that Morrison was
not limited in daily activities like shopping, traveling alone, walking without
assistance for more than one block, using public transportation, climbing stairs,
preparing meals, caring for personal hygiene, and using paper files.
After receiving Dr. Velez’s report, Morrison’s counsel objected to its
admission because Dr. Velez had no experience with POTS or PTSD. Counsel
pointed out that Dr. Velez performed an orthostatic examination instead of a tilt
table test, which he said is required to diagnose POTS. Counsel also objected to
Dr. Velez’s functional capacity findings as he did no appropriate objective testing
to determine Morrison’s limitations related to POTS or PTSD. (Tr. 306).
Morrison and her mother also submitted written statements to the state agency
about Dr. Velez’s examination. Morrison claimed that Dr. Velez “didn’t know
anything about POTS and was ‘googling’ the term on his computer during my
exam.” Morrison also said that Dr. Velez falsely reported that she did not have a
headache on the day of the exam. She stated that she told him she had a “bad
headache” and needed help from her mother to walk into the building. Morrison
also objected to Dr. Velez’s functional limitations findings, claiming that “she only
weighs 100 pounds!! Even if I didn’t have any medical problems, which I have
many, how is a 100 pound lady going to lift 50 to 100 pounds two-thirds of the
day.” Morrison’s mother also stated that Morrison had a headache and was dizzy
and lightheaded on the day of the exam. She also stated that Dr. Velez’s blood
pressure machine was not working properly but that he refused to take her
daughter’s blood pressure manually. (Tr. 306-12).
The ALJ held a hearing in Morrison’s case on February 4, 2014. Morrison
appeared for the hearing with counsel and testified as follows. At the time of
hearing, Morrison weighed 100 pounds. Morrison is a high school graduate and
has a license to sell life insurance. She worked as a service representative for
Delta Dental and as the marketing and sales director for BJC’s dental plan. While
at BJC, she supervised five people. After BJC, Morrison opened up her own
recreation off-road park on 96 acres of land, but she lost that business when she
declared bankruptcy in 2006. Morrison then took a job as a cashier and later
manager at a grocery store. Morrison was a property manager for Buccaneer
Properties from July through December of 2012, making over $15,000. Morrison
also applied for and received unemployment benefits during 2012 and 2013.
Morrison admitted using marijuana “on occasion” and cocaine in the past, although
she denied it was “a problem.” Morrison stated she couldn’t remember whether
her last positive drug screen was in August of 2012. Morrison’s balance and
coordination are off, and she trips and falls a lot. She gets headaches often, and
some are severe. Morrison sometimes has to be reminded by her mother to take
her medication. She also has insomnia and depression, but she does not like taking
anti-depressants because they make her feel “out there.” Morrison says she
stopped seeing her treating neurologist (Michele Wood) in August of 2013 because
she didn’t think Dr. Wood took her symptoms and problems very seriously.
Morrison gets lightheaded, dizzy, and tired from POTS (postural tachycardia
syndrome) on a daily basis. She takes medication to sleep and stays in bed until
noon. Morrison has to take breaks cleaning the house or going to the store. She
has maybe two good days in an average week. She drinks 15 bottles of water per
day because of POTS, so she wakes up often during the night to use the bathroom.
Morrison does not drive due to seizures. Her hobbies include watching television.
Morrison’s mother, Patricia Crews, also testified at the hearing as follows.
Morrison has lived with her for the last six years. Her daughter wakes up dizzy
every morning and is tired all the time. Morrison passes out and has headaches
and vertigo. Morrison has one or two good days per week where she is able to get
out of bed, take a shower, and do laundry with frequent breaks. Her daughter gets
headaches every few days. (Tr. 52-55).
The ALJ called a vocational expert, who testified as follows in response to
the following hypotheticals:
ALJ: [W]e have a hypothetical claimant age 49 . . . with twelve years
of education, the same past work we discussed . . . [T]his hypothetical
claimant can lift and carry 20 pounds occasionally, 10 pounds
frequently, can stand or walk for six hours out of eight, sit for six, can
occasionally climb stairs and ramps, never ropes, ladders, and
scaffolds, should avoid all exposure to unprotected heights, and
should not be involved in the operation or any motorized vehicles as
part of the work. In addition, this hypothetical claimant is able to
understand, remember, and carry out at least simple instructions and
nondetailed tasks, should not work in a setting which includes
constant regular contact with the general public, and should not
perform work which includes more than infrequent handling of
customer complaints. Given those restrictions, and those alone, could
this hypothetical claimant return to any past relevant work?
VE: I don’t think she could return to her past relevant work, your
ALJ: Okay. How about examples of other work that might fit with
VE: There would be work she would be able to do, quite a wide
variety of unskilled work . . . .
ALJ: Our second hypothetical is similar to the first, it’s 10 pounds
occasionally, less than 10 pounds frequently, stand or walk two hours
out of eight, six for six, everything else stays the same. So we’ve got
that bookkeeping job already, correct?
ALJ: And how about one other example?
VE: Another example would be production work . . . .
ATTORNEY: [I]f you could just as a separate hypothetical assume
the restrictions of hypothetical number two, but also add that on at
least two days, perhaps two days a week, she wouldn’t be able to
show up for work due to increased symptoms of dizziness and due to
POTS, basically miss two days a week, would that eliminate work?
VE: Yes, it would.
ATTORNEY: Okay. And would it, and even if it were just one day a
week, would that eliminate work?
VE: Yes, it would . . . When [missing work] exceeds two days a
month it becomes problematic.
A court’s role on review is to determine whether the Commissioner’s
findings are supported by substantial evidence on the record as a whole. Gowell v.
Apfel, 242 F.3d 793, 796 (8th Cir. 2001). Substantial evidence is less than a
preponderance, but is enough so that a reasonable mind would find it adequate to
support the ALJ’s conclusion. Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir.
2000). As long as there is substantial evidence on the record as a whole to support
the Commissioner’s decision, a court may not reverse it because substantial
evidence exists in the record that would have supported a contrary outcome, id., or
because the court would have decided the case differently. Browning v. Sullivan,
958 F.2d 817, 822 (8th Cir. 1992). In determining whether existing evidence is
substantial, a court considers “evidence that detracts from the Commissioner’s
decision as well as evidence that supports it.” Singh v. Apfel, 222 F.3d 448, 451
(8th Cir. 2000) (quoting Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999)).
Where the Commissioner’s findings represent one of two inconsistent conclusions
that may reasonably be drawn from the evidence, however, those findings are
supported by substantial evidence. Pearsall v. Massanari, 274 F.3d 1211, 1217
(8th Cir. 2001) (internal citation omitted).
To determine whether the decision is supported by substantial evidence, the
Court is required to review the administrative record as a whole and to consider:
(1) the credibility findings made by the Administrative Law Judge;
(2) the education, background, work history, and age of the claimant;
(3) the medical evidence from treating and consulting physicians;
(4) the plaintiff’s subjective complaints relating to exertional and nonexertional impairments;
(5) any corroboration by third parties of the plaintiff’s impairments;
(6) the testimony of vocational experts, when required, which is based
upon a proper hypothetical question.
Brand v. Secretary of Dep’t of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th
Disability is defined in social security regulations as the inability to engage
in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. ' 416(i)(1); 42 U.S.C. '1382c(a)(3)(A); 20 C.F.R. '
404.1505(a); 20 C.F.R. ' 416.905(a). In determining whether a claimant is
disabled, the Commissioner must evaluate the claim using a five step procedure.
First, the Commissioner must decide if the claimant is engaging in
substantial gainful activity. If the claimant is engaging in substantial gainful
activity, he is not disabled.
Next, the Commissioner determines if the claimant has a severe impairment
which significantly limits the claimant’s physical or mental ability to do basic
work activities. If the claimant’s impairment is not severe, he is not disabled.
If the claimant has a severe impairment, the Commissioner evaluates
whether the impairment meets or exceeds a listed impairment found in 20 C.F.R.
Part 404, Subpart P, Appendix 1. If the impairment satisfies a listing in Appendix
1, the Commissioner will find the claimant disabled.
If the Commissioner cannot make a decision based on the claimant=s current
work activity or on medical facts alone, and the claimant has a severe impairment,
the Commissioner reviews whether the claimant can perform his past relevant
work. If the claimant can perform his past relevant work, he is not disabled.
If the claimant cannot perform his past relevant work, the Commissioner
must evaluate whether the claimant can perform other work in the national
economy. If not, the Commissioner declares the claimant disabled. 20 C.F.R. '
404.1520; 20 C.F.R. ' 416.920.
When evaluating evidence of pain or other subjective complaints, the ALJ is
never free to ignore the subjective testimony of the plaintiff, even if it is
uncorroborated by objective medical evidence. Basinger v. Heckler, 725 F.2d
1166, 1169 (8th Cir. 1984). The ALJ may, however, disbelieve a claimant’s
subjective complaints when they are inconsistent with the record as a whole. See
e.g., Battles v. Sullivan, 902 F.2d 657, 660 (8th Cir. 1990). In considering the
subjective complaints, the ALJ is required to consider the factors set out by Polaski
v. Heckler, 739 F.2d 1320 (8th Cir. 1984), which include:
claimant=s prior work record, and observations by third parties
and treating and examining physicians relating to such matters
as: (1) the claimant=s daily activities; (2) the duration,
frequency, and intensity of the pain; (3) precipitating and
aggravating factors; (4) dosage, effectiveness and side effects of
medication; and (5) functional restrictions.
Id. at 1322. When an ALJ explicitly finds that the claimant’s testimony is not
credible and gives good reasons for the findings, the court will usually defer to the
ALJ=s finding. Casey v. Astrue 503 F.3d 687, 696 (8th Cir. 2007). However, the
ALJ retains the responsibility of developing a full and fair record in the nonadversarial administrative proceeding. Hildebrand v. Barnhart, 302 F.3d 836, 838
(8th Cir. 2002).
The ALJ’s Findings
The ALJ issued his decision that Morrison was not disabled on April 17,
2014. He found that Morrison had the severe impairments of history of seizures,
postural orthostatic tachycardia syndrome, headaches, depression, post-traumatic
stress disorder, and somatoform disorder. The ALJ found that Morrison retained
the residual functional capacity to perform light work, with the exception that she
could not climb ladders, ropes, and scaffolds or work at unprotected heights, could
only occasionally climb stairs or ramps, and could not operate a motorized vehicle.
The ALJ further found that Morrison could understand, remember, and carry out at
least simple instructions and non-detailed tasks, but should not work in a setting
that includes contact or regular contact with the general public or perform work
which involved more than infrequent handling of customer complaints. In
fashioning Morrison’s RFC, the ALJ determined that her impairments could be
expected to produce some of her alleged symptoms; however, he concluded that
Morrison’s statements concerning the intensity, persistence, and limiting effects of
those symptoms were not entirely credible to the extent they were inconsistent with
his RFC. The ALJ relied on the vocational expert’s testimony to determine that
Morrison was unable to perform her past relevant work but that that she could
work as a cleaner and packager. Because the ALJ determined that these jobs exist
in significant numbers in the national economy, he concluded that Morrison was
Morrison first argues that the ALJ erred in formulating her residual
functional capacity (RFC) because he did not properly consider all her limitations.
RFC is defined as “what [the claimant] can still do” despite his “physical or mental
limitations.” 20 C.F.R. ' 404.1545(a). “When determining whether a claimant can
engage in substantial employment, an ALJ must consider the combination of the
claimant=s mental and physical impairments.” Lauer v. Apfel, 245 F.3d 700, 703
(8th Cir. 2001). The Eighth Circuit has noted the ALJ must determine a claimant’s
RFC based on all of the relevant evidence, including the medical records,
observations of treating physicians and others, and an individual’s own description
of his limitations. McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000) (citing
Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995)). The record must include
some medical evidence that supports the RFC. Dykes v. Apfel, 223 F.3d 865, 867
(8th Cir. 2000). “Where the claimant has the residual functional capacity to do
either the specific work previously done or the same type of work as it is generally
performed in the national economy, the claimant is found not to be disabled. ”
Lowe v. Apfel, 226 F.3d 969, 973 (8th Cir. 2000) (internal citation omitted).
Morrison claims that the ALJ should have considered her symptoms related to
POTS, including lightheadedness, dizziness, weakness, and fatigue, as well as her
limited attention and concentration, when formulating her RFC.
Here, the ALJ properly formulated Morrison’s RFC only after evaluating her
credibility and discussing the relevant evidence, including Morrison’s and her
mother’s testimony, the medical evidence, Morrison’s daily activities, and the
testimony of a vocational expert. After consideration of all this evidence, the ALJ
concluded that Morrison retained the capacity to perform light work, with
modifications tailored to her credible limitations. In so doing, he did not
substantially err. In addition to the ALJ’s thorough assessment of Morrison’s
credibility (discussed below), the ALJ also factored into his RFC assessment the
objective medical findings of record, including the diagnostic imaging results and
physical examination findings, which do not support Morrison’s claimed
limitations. A CT scan taken of Morrison’s head on February 7, 2013, revealed
mild bifrontal and parietal cortical atrophy, unchanged, and was unremarkable
without acute intracranial findings. A lumbar puncture taken the same day showed
clear spinal fluid. (Tr. 575-85). Two CT scans taken on June 26, 2013, and July
30, 2013, were also negative and showed no changes. (Tr. 744-47, 754-69). Xrays taken on May 31, 2013, revealed mild degenerative changes in her left
shoulder and thoracic spine, but no acute fractures, lesions, or masses and good
overall alignment. (Tr. 709-15). An EKG reviewed on October 9, 2013, was
normal. Chest x-rays taken on November 10, 2013, were normal and showed clear
lungs, with no pneumothorax or pleural effusion. (Tr. 820). The Holter monitor
test ordered by her primary care physician Dr. Wood on August 7, 2013, was
negative. A second 30-day Holter monitor report issued on October 9, 2013,
indicated only “one complaint of syncope corresponding to a normal sinus rhythm
with rates between 87 and 94 beats per minute and the remainder showing sinus
rhythm to sinus tachycardia with occasional ventricular ectopic events.” (Tr. 811).
On November 27, 2013, Morrison’s event monitor results revealed no evidence of
arrhythmias associated with Morrison’s lightheadedness. (Tr. 858-61). However,
Morrison did test positive for drug use on July 30, 2013, when taken to the
emergency room, allegedly because she became unresponsive and had a seizure. A
vodka bottle was discovered at the top of the stairs where Morrison was found, and
she became responsive after the EMT administered Narcan.
Morrison’s physical examinations also support the ALJ’s RFC
determination, as they were largely normal despite Morrison’s numerous
complaints and repeated visits to various doctors and emergency rooms. On April
30, 2012, Morrison told Dr. Wood that she was experiencing vertigo, but Morrison
had normal tone, strength, and senses, symmetric reflexes, a steady gait, and
normal coordination. Morrison went to the emergency room on February 7, 2013,
complaining of headache after taking her boyfriend’s Oxycontin. Her physical
examination and diagnostic tests were normal. Morrison went to a different
emergency room on April 6, 2013, complaining of headaches. Physical
examination there was also within normal limits. After Morrison requested
Percocet, hospital staff became concerned about “drug-seeking behavior.” (Tr.
685-92). Morrison was transported to the emergency room on May 2, 2013, after a
seizure and fall, but her physical examination was again within normal limits,
including a normal range of motion in her back and extremities. Morrison refused
a CT scan at that time, stating that she forgot to take her seizure medication “quite
often.” (Tr. 727-32). In May of 2013, Morrison reported that her headaches were
down and that she “felt much better overall.” (Tr. 616-20). Although Dr.
Galakatos observed a severely limited range of motion in Morrison’s cervical spine
after her May 2, 2013, fall, Morrison still had normal alignment, no erythema,
lesions, masses, drainage, or spinous process tenderness, and her motor strength
was 5/5 to the shoulders, biceps, triceps, wrist flexors and extensors, thumb
abductors, and hand, and she had intact sensation in her upper extremities.
Morrison told Dr. Szalkowski that she was experiencing vertigo during her June 5,
2013, office visit, but Morrison’s examination was normal, with normal sensory
and motor movements. (Tr. 668-72).
Dr. Szalkowski’s examinations on June 28, 2013, and July 10, 2013, were
essentially normal, except Morrison had diffuse tenderness and a moderately
restricted range of motion in her left shoulder. (Tr. 659-63; 653-56). Morrison’s
physical examination on July 30, 2013, after allegedly having a seizure and
becoming unresponsive, was also within normal limits after she was administered
Narcan, although the emergency room physician believed that she may have had a
concussion and a syncopal episode. (Tr. 754-69). Dr. Szalkowski’s examination
on August 1, 2013, again revealed normal heart rate and rhythm, no edema, normal
sensory and motor skills, with only a moderately reduced range of motion and
some tenderness in the cervical spine. (Tr. 645-52). Dr. Wood examined Morrison
four days later, and that examination was also within normal limits. Dr. Wood
noted that Morrison had tested positive for opiates and marijuana during her July
30, 2013, emergency room visit. (Tr. 609). Dr. Szalkowski’s physical
examinations on September 3 and 9, 2013, were again within normal limits, except
for some tenderness in Morrison’s left shoulder. Morrison told Dr. Szalkowski
that she wanted “to review the issues that she is seeking disability.” (Tr. 637-41;
628-35). Although Dr. Missler told Morrison that her September 11, 2013, tilt
table test results were consistent with POTS, his October 9, 2013, physical
examination of her was within normal limits. She was counseled about the
importance of medication compliance and told to return in six weeks. (Tr. 71719).
Morrison was found to have for strep throat during her emergency room
visits on November 10 and 13, 2013, but her physical examinations were otherwise
normal, despite Morrison rating her pain as “severe” and demanding Dilaudid
instead of Tylenol. (Tr. 814-53). Morrison returned to Dr. Missler’s office on
November 27, 2013, complaining of continued dizziness and lightheadedness, but
she reported that her symptoms had improved with medication. Again, Morrison’s
physical examination was within normal limits. (Tr. 858-61). Morrison’s
examination by neurologist Dr. Turpin on December 2, 2013, also yielded normal
results. (Tr. 863-66). On her follow-up appointment with Dr. Turpin on January
17, 2014, he noted that her physical examination was normal and that her seizures
were pretty well-controlled. (Tr. 871-74). Dr. Velez’s consultative examination of
Morrison on March 7, 2014, was also normal, and Morrison reported that she was
seizure free after she began taking medication. (Tr. 891-96). When Morrison’s
examination results were not normal, they were generally associated with an
isolated event -- such as being involved in an automobile accident, getting a cold or
strep throat, or stepping on a piece of wood – rather than her claimed limitations.
(Tr. 814-53; 867-70; 659-63; 653-56; 734-37; 668-72; 507-08). The physical
examination results do not support the claimed severity of Morrison’s symptoms,
and the ALJ did not substantially err in considering the medical records when
formulating the RFC.
In addition to these diagnostic and clinical findings, the ALJ also considered
and evaluated the medical opinions offered by both treating and consulting
physicians. Treating physician Dr. Wood stated that Morrison could not stand
more than three feet off the ground, lift more than five pounds above the waist,
cook on front burners, drive, bathe, or swim. (Tr. 809). The ALJ discounted this
opinion because at the time it was given, Dr. Wood was no longer treating
Morrison, it was unclear whether Dr. Wood considered Morrison’s drug use when
she issued the opinion, and it was not supported by any diagnostic or clinical
findings. The opinion of the treating physician should be given great weight only
if it is based on sufficient medical data. Leckenby v. Astrue, 487 F.3d 626, 632
(8th Cir. 2007) (holding that a treating physician’s opinion does not automatically
control or obviate need to evaluate record as whole and upholding the ALJ’s
decision to discount the treating physician’s medical-source statement where
limitations were never mentioned in numerous treatment records or supported by
any explanation); Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006) (holding
that where a treating physician’s notes are inconsistent with his or her RFC
assessment, controlling weight is not given to the RFC assessment); Chamberlain
v. Shalala, 47 F.3d 1489, 1494 (8th Cir. 1995) (holding that opinions of treating
doctors are not conclusive in determining disability status and must be supported
by medically acceptable clinical or diagnostic data) (internal quotation marks and
citation omitted). Here, the ALJ properly discounted Wood’s conclusory opinion
as it is not supported with diagnostic testing, treatment notes and the other,
uncontraverted objective medical evidence of record. See Prosch v. Apfel, 201
F.3d 1010, 1013 (8th Cir. 2000) (an ALJ may Adiscount or even disregard the
opinion of a treating physician where other medical assessments are supported by
better or more thorough medical evidence, or where a treating physician renders
inconsistent opinions that undermine the credibility of such opinions.@) (internal
quotation marks and citations omitted); Cox v. Barnhart, 471 F.3d 902, 907 (8th
Cir. 2006) (holding that an ALJ may give a treating doctor’s opinion limited
weight if it is inconsistent with the record). Despite his assessment of Dr. Wood’s
opinion, the ALJ actually incorporated some of Dr. Wood’s recommendations,
including not driving and only occasionally climbing stairs or ramps, into his RFC
The ALJ also relied upon the opinion of consultative neurologist Dr. Velez,
who found that Morrison suffered no limitations with respect to sitting, standing,
walking, lifting, carting, or manipulating objects. During examination, Morrison
did not become lightheaded when going from sitting, to lying down, to standing,
and she did not complain of having a headache, either. Her blood pressure and
heart rate were steady and normal, she had a normal gait and stance, and she had
full grip strength and range of motion in her extremities. Morrison could bend
over and touch her toes, squat and rise, walk on her heels, touch her toes, put her
arms above her head, and make a fist. Based on his examination, Dr. Velez
concluded that Morrison could continuously carry up to 50 pounds, frequently lift
up to 100 pounds, sit six hours out of an eight-hour workday, stand for five, and
walk for hour hours out the workday. He opined that Morrison could continuously
climb stairs, ramps, ladders, or scaffolds, balance, stoop, kneel, crouch, or crawl,
but that she should not drive or work at unprotected heights.
In formulating the RFC, the ALJ did not adopt Dr. Velez’s findings
wholesale, but rather significantly restricted Morrison’s activities based on all the
evidence submitted, including her testimony and that of her mother’s. Instead, the
ALJ limited Morrison to light work only (defined as lifting and carrying 20 pounds
occasionally and 10 pounds frequently), thus alleviating Morrison’s concern that “a
100 pound lady [can’t] lift 50 to 100 pounds two-thirds of the day.” He also
addressed Morrison’s complaints of vertigo, dizziness, and lightheadedness by
restricting Morrison from climbing ropes, ladders, or scaffolds, limiting her
climbing of stairs and ramps, and restricting her from operating a motor vehicle or
being exposed to unprotected heights. During cross-examination of the VE,
Morrison’s attorney included an additional hypothetical limitation of one to two
absences a week. Yet there is no objective, medical evidence of record to support
this limitation. No physician has ever stated that Morrison needed to spend one to
two days per week in bed due to fatigue or other limitations or that she was
precluded from working. See Young v. Apfel, 221 F.3d 1065, 1069 (8th Cir.
2000) (significant that no examining physician submitted medical conclusion that
claimant is disabled or unable to work). The lack of an objective medical basis to
support a claimant’s subjective complaints is an important factor the ALJ should
consider when evaluating those complaints. Stephens v. Shalala, 50 F.3d 538, 541
(8th Cir. 1995); Barrett v. Shalala, 38 F.3d 1019, 1022 (8th Cir. 1994). The ALJ
did not substantially err in refusing to include this – or any additional – physical
limitation in Morrison’s RFC.
Contrary to Morrison’s cursory argument, the ALJ also considered
Morrison’s mental impairments when formulating her RFC. Morrison argues that
the ALJ did not include appropriate restrictions addressing her limitations with
concentration, persistence or pace. I disagree. The ALJ concluded that Morrison’s
mental impairments resulted in moderate difficulties in social functioning,
concentration, persistence, and pace. To account for Morrison’s credible mental
impairments, the ALJ limited her to understanding, remembering, and carrying out
simple instructions and non-detailed tasks, working in a setting that does not
include constant or regular contact with the general public, and performing work
that does not include more than infrequent handling of customer complaints. In
doing so, the ALJ did not substantially err. Once again, the ALJ factored into his
RFC assessment a determination of Morrison’s credibility and the objective
medical findings of record, including diagnostic test results and treatment notes.
Here, although the ALJ did find that Morrison suffered from depression,
somatoform disorder, and PTSD, he noted that Morrison’s mental impairments
were not as severe as she claimed because she did not regularly receive psychiatric
care, used drugs, and was not “fully forthright” about her drug usage. Morrison
was evaluated by Psych Care Consultants in 2010 and diagnosed with depression,
recurrent cannabis abuse, and cocaine abuse in remission. She was prescribed
Lexapro. However, Morrison denied current psychological treatment or
medication during her consultative examination with Dr. Lipsitz in May of 2012.
(Tr. 444-47). Although Dr. Lipsitz assigned Morrison a GAF score of 52, the ALJ
properly discounted this finding based on the lack of regular psychiatric care and
the other, objective medical evidence of record. See Curtis v. Astrue, 338 Fed.
Appx. 554, 555 (8th Cir. 2009) (ALJ properly discounted consulting physician’s
opinion since he only saw claimant once, limitations were not adequately
explained, and opinion was contradicted by other medical evidence of record);
Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007) (consulting physician’s opinion
deserves no special weight). Morrison told Dr. Beckmann in October of 2012 that
she had never been treated for depression and denied any recreational drug usage.
Dr. Beckmann diagnosed mild depression and started her on an anti-depressant,
and during her next visit Morrison reported “a gratifying improvement,” with
stable mood, good appetite, and normal sleep habits. (Tr. 514-15; 511-12).
Despite her reported success with the anti-depressant, by February of 2013,
Morrison’s medications were listed as “none.” (Tr. 613). Lack of treatment is
inconsistent with complaints of a disabling condition and is an appropriate factor
for the ALJ to consider when determining a claimant’s RFC. See Clevenger v.
Social Security Administration, 567 F.3d 971, 976 (8th Cir. 2009); Kelley v.
Barnhart, 372 F.3d 958, 961 (8th Cir. 2004). Moreover, “[i]f an impairment can be
controlled by treatment or medication, it cannot be considered disabling.” Brown
v. Barnhart, 390 F.3d 535, 540 (8th Cir. 2004).
The ALJ also relied on Morrison’s neuropsychological evaluation by Dr.
Oliveri on May 24, 2012, when formulating the RFC. Dr. Oliveri administered
several tests and noted that Morrison’s results were not accurate because “her
performance was grossly incompatible with neurologic reference groups” and her
symptomatic over-focus reflected elements of exaggeration and motivational
factors. Dr. Oliveri also noted that Morrison provided a disjointed and unreliable
history, was uncooperative, and gave a suboptimal effort. (Tr. 453-55). “An ALJ
may discount a disability claimant’s subjective complaints if there is evidence that
a claimant was a malingerer or was exaggerating symptoms for financial gain.”
Davidson v. Astrue, 578 F.3d 838, 844 (8th Cir. 2009).
It was also appropriate for the ALJ to consider Morrison’s drug use and
her inconsistent reporting of that drug use when fashioning her RFC, as they
impact her credibility. See Lewis v. Colvin, 973 F. Supp. 2d 985, 1005-06 (E.D.
Mo. 2013). Although Morrison admitted using marijuana to Dr. Lipsitz, she
denied her drug usage to Dr. Beckmann and Dr. Velez. Morrison tested positive
for marijuana during her July 30, 2013, visit to the emergency room and admitted
using her boyfriend’s Oxycontin on February 7, 2013. One emergency room
suspected drug-seeking behavior after she complained of headaches and asked for
Percocet. Morrison obtained Percocet from emergency rooms on June 3, 2013, and
June 26, 2013, and demanded Dilaudid from yet another emergency room on
November 10, 2013, after refusing Tylenol for headaches and strep throat. A
claimant’s misuse of medications is a valid factor in an ALJ’s credibility
determination. Anderson v. Shalala, 51 F.3d 777, 780 (8th Cir. 1985) (claimant’s
“drug-seeking behavior further discredits her allegations of disabling pain.”);
Anderson v. Barnhart, 344 F.3d 809, 815 (8th Cir. 2003) (claimant’s misuse of
medications is a valid factor in ALJ’s credibility determination).
Morrison’s moderate mental impairments were adequately addressed by the
RFC which limited her to understanding, remembering, and carrying out simple
instructions and non-detailed tasks, working in a setting that does not include
constant or regular contact with the general public, and performing work that does
not include more than infrequent handling of customer complaints. Here, the ALJ
properly relied upon the testimony of the vocational expert, the testimony of
Morrison and her mother, and the other evidence of record in determining that
Morrison retained the ability to work as a cleaner and packager, and this finding is
substantially supported by the record as a whole. See Smallwood v. Chater, 65
F.3d 87, 89 (8th Cir. 1995) (vocational expert can properly offer testimony as to
whether claimant can work after taking into account medical limitations).
To the extent Morrison claims that the RFC is conclusory merely because it
did not follow a specific format set out in Social Security Regulation 96-8p, this
argument is meritless because “an arguable deficiency in opinion-writing technique
does not require [the Court] to set aside an administrative finding when that
deficiency had no bearing on the outcome.” Hepp v. Astrue, 511 F.3d 798, 806
(8th Cir. 2008). Because Morrison retained the RFC to work as a cleaner and
packager, she was not disabled. Substantial evidence in the record as a whole
supports the ALJ’s RFC determination, so I will affirm the decision of the
Morrison also contends that the ALJ did not properly evaluate her credibility
under the standards set out in Polaski. When determining the credibility of a
claimant’s subjective complaints, the ALJ must consider all evidence relating to
the complaints, including the claimant’s prior work record and third party
observations as to the claimant’s daily activities; the duration, frequency and
intensity of the symptoms; any precipitating and aggravating factors; the dosage,
effectiveness and side effects of medication; and any functional restrictions.
Halverson v. Astrue, 600 F.3d 922, 931 (8th Cir. 2010); Polaski, 739 F.2d at 1322.
While an ALJ need not explicitly discuss each Polaski factor in his decision, he
nevertheless must acknowledge and consider these factors before discounting a
claimant’s subjective complaints. Wildman v. Astrue, 596 F.3d 959, 968 (8th Cir.
A[T]he duty of the court is to ascertain whether the ALJ considered all of the
evidence relevant to the plaintiff’s complaints . . . under the Polaski standards and
whether the evidence so contradicts the plaintiff’s subjective complaints that the
ALJ could discount his or her testimony as not credible.@ Masterson v. Barnhart,
363 F.3d 731, 738B39 (8th Cir. 2004). It is not enough that the record merely
contain inconsistencies. Instead, the ALJ must specifically demonstrate in her
decision that she considered all of the evidence. Id. at 738; see also Cline v.
Sullivan, 939 F.2d 560, 565 (8th Cir. 1991). Where an ALJ explicitly considers
the Polaski factors but then discredits a claimant’s complaints for good reason, the
decision should be upheld. Hogan v. Apfel, 239 F.3d 958, 962 (8th Cir. 2001).
The determination of a claimant’s credibility is for the Commissioner, not the
Court, to make. Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005).
Here, the ALJ properly evaluated Morrison’s credibility based upon her own
testimony, the objective medical evidence of record, Morrison’s daily activities,
the conservative nature of her treatment, and the lack of restrictions set out by
treating and examining physicians. The ALJ summarized Morrison’s testimony
regarding her daily activities, subjective allegations of pain, as well as her admitted
drug use. He also considered the testimony of Morrison’s mother, who stated that
Morrison gets dizzy, has vertigo, needs breaks during the day, and takes ibuprofen
for headaches. However, the ALJ was not required to believe all of these
assertions concerning Morrison’s daily activities. Johnson v. Chater, 87 F.3d
1015, 1017 (8th Cir. 1996). Instead, he discounted Morrison’s subjective
complaints only after evaluating the entirety of the record. In so doing, he did not
substantially err, as subjective complaints may be discounted if inconsistencies
exist in the evidence as a whole. Hinchey v. Shalala, 29 F.3d 428, 432 (8th Cir.
In assessing Morrison’s credibility, the ALJ noted that no physician ever
rendered an opinion that she was unable to work. As discussed above, the lack of
significant limitations set out by treating and examining physicians is relevant to a
determination of disability. See Goff , 421 F.3d at 792. The ALJ also noted that
Morrison did not seek or require aggressive treatment for her mental impairments.
See Clevenger, 567 F.3d at 976. As discussed above at length, the ALJ also
concluded that Morrison’s subjective complaints of pain were of limited credibility
because they were not supported by the objective medical evidence of record, an
important factor for evaluating a claimant’s credibility. Stephens, 50 F.3d at 541.
The ALJ also properly relied upon Morrison’s drug usage and her failure to
accurately report that drug usage when assessing her credibility. The ALJ also
pointed out that Morrison had not been forthright about her seizure history, either,
because she told Dr. Turpin that she had .5 seizures per year, but earlier in the year
she claimed that she had three seizures per year. Morrison then told Dr. Velez that
she remained seizure free when on medication. See Anderson, 51 F.3d at 780;
Anderson v. Barnhart, 344 F.3d at 815. The ALJ also discounted Morrison’s
credibility because she applied for and received unemployment benefits during the
time she had originally alleged that she was disabled. The acceptance of
unemployment benefits, which entails an assertion of the ability to work, is facially
inconsistent with a claim of disability and may be some evidence to negate a claim
of disability. Johnson v. Chater, 108 F.3d 178, 180-81 (8th Cir. 1997). Where, as
here, an ALJ seriously considers but for good reasons explicitly discredits a
claimant’s subjective complaints, the Court will not disturb the ALJ’s credibility
determination. Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). Substantial
evidence in the record as a whole supports the ALJ’s credibility determination, so I
will affirm the decision of the Commissioner.
Because substantial evidence in the record as a whole supports the ALJ’s
decision to deny benefits, I will affirm the decision of the Commissioner.
IT IS HEREBY ORDERED that the decision of the Commissioner is
A separate Judgment in accord with this Memorandum and Order is entered
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 21st day of September, 2015.
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