Treadway v. Colvin
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. Signed by District Judge Carol E. Jackson on 3/7/2016. (KMS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Case No. 4:14-CV-1957 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court for review of an adverse ruling by the Social
I. Procedural History
On March 16, 2012, plaintiff Pamela Treadway filed an application for
disability insurance benefits, Title II, 42 U.S.C. §§ 401 et seq., and supplemental
security income, Title XVI, 42 U.S.C. §§ 1381 et seq., with an alleged onset date of
December 30, 2011. (Tr. 68–78, 130–37). After plaintiff’s application was denied
on initial consideration (Tr. 91–95), she requested a hearing from an Administrative
Law Judge (ALJ). (Tr. 96–97).
Plaintiff appeared for a hearing on February 24, 2014. (Tr. 41–67). The ALJ
issued a decision denying plaintiff’s application on July 28, 2014. (Tr. 7–40). The
Appeals Council denied plaintiff’s request for review on September 24, 2014. (Tr.
1–6). Accordingly, the ALJ’s decision stands as the Commissioner’s final decision.
II. Evidence Before the ALJ
A. Disability Application Documents
In the Disability Report plaintiff completed on March 16, 2012 (Tr. 178–88),
she listed her medical conditions as diabetes, neuropathy in both of her hands and
feet, migraine headaches, acid reflux, abdominal pain, arthritis in her right ankle,
numbness and pain in the right side of her face, migraines, and depression. In her
Work History Report dated April 12, 2012 (Tr. 189–200), plaintiff wrote that in the
15 years before the onset of her alleged disability, she had worked as an office
assistant for the St. Louis County government for one year and as a legal assistant
for a legal office for six years.
As a legal assistant, she updated client files,
scheduled appointments, managed client billing, copied documents, and took trips
to the court house to file various documents. She was required to use computers,
copiers, and calculators for her work. This job required her to walk and stand for
one-and-a-half hours, sit for three hours, and write, type or handle small objects
for four hours each day. The heaviest weight she lifted was 20 pounds, and she
frequently lifted less than 10 pounds. As an office assistant she filed papers and
set court dates. In that position she sat for five hours, stood for two hours, and
walked for half an hour each day.
Prior to the office assistant position, she had
worked as a waitress at a diner for six years. (Tr. 230).
In the Function Report plaintiff completed on April 12, 2012 (Tr. 201–11), she
described her daily activities as follows: she tested her blood sugar level and took
her medication, ate breakfast, took a nap, again tested her blood sugar and
medication, ate lunch, took another nap, cooked dinner, tested her blood sugar and
took her medication, and attempted to accomplish small household chores between
naps throughout the day. Once her migraines started, she wrote that she became
“almost incapacitated.” (Tr. 201). Also, her medication made her extremely sleepy
and high blood sugar levels caused her to feel exhausted. She helped take care of
a pet dog at home, feeding it in the morning and letting it outside several times
during the day. (Tr. 201, 204). Her husband fed and let the dog outside at night
and bathed the dog weekly. Before the onset of her conditions, plaintiff stated that
she was capable of standing or sitting for long amounts of time.
Now, she had
constant blurred vision in her right eye and constant pain in both feet and legs. At
night, she was only able to sleep a few hours at a time.
With respect to her personal care, plaintiff noted that it was very hard for her
to wear shoes on both feet.
However, she did not need special
reminders to take care of her personal needs and grooming. Her husband arranged
her medication for her on a weekly basis in a pill box and ensured she used the
correct insulin dose in her injection pen.
Plaintiff prepared her own meals on a
daily basis, including sandwiches, cereal, oatmeal, fruit, and meat dinners in a
crockpot or Dutch oven.
Cooking took her 1–2 hours per day, but it
took her longer to cook since the onset of her conditions. Plaintiff cleaned, cooked,
and did laundry, although she wrote that she needed to take several breaks during
Plaintiff noted that she no longer drove, because she could not see clearly and
her medication made her drowsy. (Tr. 204, 210). Her husband took her grocery
shopping 1–2 times a week for approximately 30 minutes to an hour. Plaintiff was
capable of paying bills, handling a savings account, and counting change.
hobbies included watching television and using a computer, because she could not
read consistently due to her vision problem.
(Tr. 205, 210).
Her children and
family came over to visit her frequently. Plaintiff needed someone to accompany
her when she went out 3–4 times a month to go to doctor’s appointments and the
She wrote that she hardly attended social functions anymore
because she became nervous in crowds. (Tr. 206).
Plaintiff wrote that her conditions made it difficult for her to climb stairs and
read small print. She could only walk a short distance before needing a rest and
needed to rest 5–10 minutes before she could continue.
Plaintiff was capable of
finishing what she started and reported that she was good at following written or
spoken instructions. She also got along well with authority figures and had never
been fired or laid off from a job because of problems getting along with others. (Tr.
207). With respect to her ability to adjust to changes in routine, plaintiff noted that
it was difficult for her at first, but she was doing much better. She reported being
uncomfortable in noisy places.
In the Disability Report she completed for her appeal (Tr. 215–20), plaintiff
wrote that her conditions had changed since her last report. Specifically, plaintiff
stated that she had been diagnosed with post-traumatic stress with depression on
August 1, 2012 and had had rotator cuff surgery on June 5, 2012. Due to the large
amount of medications she was taking, plaintiff noted that she had to limit driving
and being away from home. She also had constant leg and foot pain.
Plaintiff’s son, Kristoffer R. Tomlinson, and daughter, Rachel Tomlinson, wrote
letters regarding their mother’s health condition in March 2013. (Tr. 232–33). Mr.
Tomlinson wrote that plaintiff’s health had declined significantly in the past few
years. Her diabetes affected her vision, which made her unstable on her feet. She
had not fully recovered from a recent shoulder surgery. They were in the process
of evaluating her options for a recently diagnosed back injury.
stated that these ailments in combination made living a normal life very difficult for
plaintiff with regard to driving, working, or keeping a house. The combination of
ailments had restricted plaintiff’s movement, such as getting out of bed, getting out
of a chair, or going to the bathroom.
Mr. Tomlinson stated that he had been
present at many doctors’ appointments and stayed overnight during several
Ms. Tomlinson wrote that her mother was now at a point with her health that
made it impossible for her to continue working.
Within the past few
years, plaintiff’s health had taken a drastic turn for the worse. Her diabetes caused
the nerve endings in her body to tingle with constant pain and made recovering
from any health issue extremely difficult.
Ms. Tomlinson noted that her mother
recently had found out she might have several bulging discs in her back.
Tomlinson stated that her mother was not able to drive to work, sit in a chair for
extended periods of time, or focus on work that required deep thought and
concentration because of her constant pain.
Metformin1 500 mg, Protonix2 40 mg, Glimepiride3 4 mg, Lantus4 100 unit/mL
solution, Cymbalta5 60 mg, Vicodin6 5-500 mg, Humalog7 KwikPen 100 unit/mL
Metformin is an oral medication for the treatment of Type 2 diabetes.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a696005.html (last visited on May 17, 2010).
Protonix, the brand name of Pantoprazole, is a proton-pump inhibitor used to treat the symptoms of
gastroesophageal reflux disease (GERD).
https://www.nlm.nih.gov/medlineplus/druginfo/meds/a601246.html (last visited August 18, 2015).
Glimepiride is used to treat type 2 diabetes by lowering blood sugars that cause the pancreas to
produce insulin. https://www.nlm.nih.gov/medlineplus/druginfo/meds/a696016.html (last visited
August 18, 2015).
Lantus, the brand name for Insulin Glargine, is an artificial insulin used as an injection to treat type 1
and 2 diabetes. https://www.nlm.nih.gov/medlineplus/druginfo/meds/a600027.html (last visited
August 18, 2015).
Cymbalta, or Duloxetine, is used to treat depression and generalized anxiety disorder; pain and
tingling caused by diabetic neuropathy and fibromyalgia.
www.nlm.nih.gov/medlineplus/druginfo/meds (last visited on Oct. 27, 2009).
solution, Divigel8 0.25 mg, Flexeril9 10 mg, Hydroxyzine10 25 mg, Meloxicam11 15
mg, Zolpidem12 Tartrate 5 mg, Cubicin13 500 mg solution, Meropenem14 1 gram,
Ciprofloxacin15 500 mg, Clindamycin16 150 mg, and Nystatin.17 (Tr. 266–67). Her
body mass index was 36.73.
B. Testimony at the Hearing
Plaintiff was 49 years old on the date of the hearing. (Tr. 49, 57). She was
married and had two adult children.
The highest level of education she had
achieved was some college, and she had taken continuing education classes to
Vicodin is a narcotic analgesic indicated for relief of moderate to moderately severe pain.
Dependence or tolerance may occur. See Phys. Desk. Ref. 530-31 (60th ed. 2006).
Humalog, the brand name for Insulin Lispro, is an artificial isnulin used to treat type 1 or type 2
diabetes. https://www.nlm.nih.gov/medlineplus/druginfo/meds/a697021.html (last visited August 18,
Divigel, the brand name for Estradiol, is used to treat and prevent hot flashes in women experiencing
menopause. https://www.nlm.nih.gov/medlineplus/druginfo/meds/a605041.html (last visited August
Flexeril is indicated as an adjunct to rest and physical therapy for relief of muscle spasm associated
with acute musculoskeletal conditions. See Phys. Desk Ref. 1832-33 (60th ed. 2006).
Hydroxyzine is used to relieve the itching caused by allergies and to control the nausea and
vomiting caused by various conditions, including motion sickness. It is also used for anxiety and to
treat the symptoms of alcohol withdrawal. www.nlm.nih.gov/medlineplus/druginfo/meds (last visited
on Oct. 28, 2009).
Meloxicam is a nonsteroidal anti-inflammatory used to relieve pain, tenderness, swelling, and
stiffness caused by osteoarthritis and rheumatoid arthritis. It can also be prescribed to treat
ankylosing arthritis. http://www.nlm.nih.gov/medline
plus/druginfo/meds/a601242.html (last visited on Nov. 4, 2014).
Zolpidem is a sedative-hypnotic used to treat insomnia. http://www.nlm.nih.
gov/medlineplus/druginfo/meds/a693025.html (last visited on Sept. 1, 2011).
Cubicin, the brand name for Daptomycin, is a cyclic lipopeptide antibiotic used to treat certain blood
infections or serious bacterial skin infections.
https://www.nlm.nih.gov/medlineplus/druginfo/meds/a608045.html (last visited August 18, 2015).
Meropenem is an antibiotic used to eliminate bacteria that cause many kinds of infections, including
pneumonia and urinary tract, skin, bone and stomach infections.
https://www.nlm.nih.gov/medlineplus/druginfo/meds/a696038.html (last visited August 18, 2015).
Ciprofloxacin is a synthetic broad-spectrum antimicrobial agent. Phys. Desk Ref. 3073 (64th ed.
Clindamycin is a lincomycin antibiotic used to treat certain types of bacterial infections, including
infections of the lungs, skin, blood, bones, joints, female reproductive organs, and internal organs.
https://www.nlm.nih.gov/medlineplus/druginfo/meds/a682382.html (last visited August 18, 2015).
Nystatin is used to treat fungal infections of the skin, mouth, vagina, and intestinal tract.
https://www.nlm.nih.gov/medlineplus/druginfo/meds/a682758.html (last visited August 18, 2015).
learn computer skills. Plaintiff had a driver’s license, but she only drove once or
twice a month to pick up prescriptions.
Plaintiff’s past employment included working as an office assistant at the St.
Louis County Counselor’s Office and as a legal assistant for a private attorney. (Tr.
Her work duties as a legal assistant included scheduling appointments,
updating files, and having initial contact with clients.
As an office assistant, she
scheduled hearings, typed subpoenas and filed documents.
Plaintiff testified that
she had stopped working in 2012 because she was unable to get her diabetes under
control. At the hearing, the ALJ noted that plaintiff only seemed to be able to sit for
about five minutes at a time. (Tr. 52–53). Plaintiff stated that she had radiating
pain from her back down through her leg to her big toe.
manage the pain when the pain reached a point where she could no longer take it.
The pain never completely went away. (Tr. 54).
In response to questioning from the ALJ, plaintiff stated that she could walk
for 10–15 minutes before she needed a rest. She could dress herself, except for
putting on her shoes.
However, plaintiff stated that she usually stayed in her
pajamas all day. She could not wear jeans or anything tight that put pressure on
her back. Plaintiff testified that she was able to do some household chores, but it
took her 3–4 times longer to complete the chores than she thought it should. She
could not sweep or mop and she cooked in stages.
Her husband helped out at
After arising on a typical day, plaintiff checked her blood sugar, ate
something, took her medicine, did stretching exercises, and took a nap. (Tr. 54).
After her nap, she usually started dinner or spent some time on a computer. (Tr.
55). The ALJ noted that plaintiff had asked her son to come with her to the hearing
to help her read.
Plaintiff testified that her diabetes affected her vision and she
owned four different pairs of glasses depending on what her eyesight was like on a
She stated that every day there was some sort of change in her
Plaintiff described her social life as “absolutely nothing.”
grandchildren visited her at her house on occasion, but she frequently felt tired and
Besides the pain in her lower back, plaintiff testified that she also had pain in
her right elbow, wrist, knee and shoulder where she had rotator cuff surgery. She
stated that she had had a total of 9–10 surgeries in the past and had scar tissue
throughout her body.
She was scheduled to see a rheumatologist in a month.
Plaintiff also told the ALJ to consider her work history and note that this was the
first time in her life that she had not worked. (Tr. 57). Her ultimate goal was to
return to work, because she did not like staying at home. Plaintiff was depressed
by the fact that she could no longer go on yearly vacations.
Friends no longer
called her to go out, she stated, because they knew she could not go.
Plaintiff further stated that treating physicians did not want to touch her back
because of her infection. (Tr. 58). She said that she had been on a PICC line for
15 weeks to try to clear the infection. Her body had shut down from the amount of
antibiotics she was on and she was admitted to the hospital. Plaintiff stated that
she also had “horrible headaches from the nerve endings in [her] head.” (Tr. 59).
Additionally, plaintiff took medication for depression and stated that depression
contributed to her inability to work. (Tr. 60, 62). Plaintiff had neuropathy in both
feet from her diabetes. (Tr. 63). Plaintiff reported falling twice, tearing her rotator
cuff the first time and knocking her teeth out the second time.
testified that she now wore dentures. At the completion of plaintiff’s testimony, the
ALJ stated that he would order psychological and neurological consultative
examinations. (Tr. 63–66).
On July 3, 2014, J. Stephen Dolan, a vocational expert, responded to
interrogatories from the ALJ.
The interrogatories requested Mr. Dolan’s opinion
regarding employment opportunities for an individual of plaintiff’s age, education,
work experience, and the residual functional capacity to perform sedentary work,
except that the individual was unable to climb ramps, stairs, ladders, ropes or
scaffolds, kneel, crouch and crawl, but could occasionally stoop, was able to push or
pull with her upper extremities on an occasional basis only, was unable to operate
any foot control operations, should avoid concentrated exposure to extreme
vibration and all operational control of moving machinery, working at unprotected
heights, and the use of hazardous machinery, and could only engage in simple,
routine and repetitive tasks, with a low stress job defined as requiring only
occasional decision making and only occasional changes in the work setting. (Tr.
Mr. Dolan first identified plaintiff’s past work experience as an administrative
clerk, legal secretary, training manager, and informal waitress.
vocational expert then opined that the hypothetical individual posed could not
perform any of plaintiff’s past jobs, because the past work was not simple, routine
and repetitive. However, Mr. Dolan wrote that such an individual could perform the
unskilled occupations of a cashier at the light exertional level, or a sedentary
assembler or product checker. (Tr. 280).
With respect to the interrogatories, plaintiff wrote that Mr. Dolan did not
have enough facts to allow him to make an informed decision.
Specifically, plaintiff stated that she could not sit or stand for more than 20–30
minutes without changing positions, the medications she took on a daily basis had
side effects that made her drowsy and dizzy, antibiotics she took for her back made
her blood sugar levels fluctuate considerably, her SED rate and C-reactive protein
levels were still very high, and her primary care physician, Jennifer Wessels, M.D.
agreed that plaintiff could not do the job description listed by the vocational expert.
With her response, plaintiff included a letter from Dr. Wessels stating that plaintiff
had multiple chronic medical conditions that caused her chronic pain and difficulty
walking and standing for more than 20 minutes at a time. (Tr. 296). The doctor
stated that plaintiff’s medication regimen often caused her side effects such as
drowsiness and fatigue.
C. Medical Records
On March 15, 2010, plaintiff had a head CT scan and an MRI of her brain at
Mercy Hospital to assess her visual problems and elevated sedimentation rate. (Tr.
401). Neither test showed acute or significant intracranial abnormality. The MRI
confirmed very focal minimal right frontal white matter changes at the right frontal
horn, but further clinical correlation was noted as necessary for assessment.
Plaintiff’s medical records resume on March 11, 2011 with an appointment with
Philip G. Conway, M.D. at Dunn Physician Offices for leg pain.
Plaintiff was noted to be a passive smoker, consuming half a pack of cigarettes a
day for fifteen years. It was also noted that sometime last fall plaintiff was nearly
struck by a car and injured her calf when she jumped out of the car’s way. She had
gone to the emergency room and was told that her injury was muscular. Since that
time it had healed with mild sensitivity in the area, until she began to walk more
recently. The pain was uncomfortable primarily at rest rather than ambulation. Dr.
Conway also thought the injury was muscular, but he had some concern for clotting
and sent her for a venous Doppler examination. The venous Doppler exam found
no evidence of deep or superficial vein thrombosis in the left lower extremity. (Tr.
Because her injury was determined to be muscular, Dr. Conway advised
plaintiff to use heat, rest, and anti-inflammatory to treat the injury.
Plaintiff returned to see Dr. Conway on May 18, 2011 (Tr. 303–08), reporting
significant increased left leg heaviness in the past few weeks.
The doctor noted
that this seemed to be a continuation of the issue for which she underwent a
negative venous Doppler in March.
Her sugar levels also had jumped markedly
over the past several days. Upon physical examination, plaintiff appeared mildly ill,
had inflamed nasal membranes and her leg demonstrated tenderness along the
lateral medial aspects of the calf.
Dr. Conway diagnosed plaintiff with lower leg
joint pain and uncontrolled diabetes mellitus type II. Plaintiff was first diagnosed
with diabetes at age 45. (Tr. 932). Dr. Conway still felt plaintiff’s leg injury was a
muscular skeletal issue.
He instructed plaintiff to use a scheduled anti-
inflammatory and to call if her injury did not improve.
Dr. Conway also added
samples of Januvia18 for plaintiff’s diabetic control and indicated he would make
further adjustments to her sugars if needed.
Januvia, the brand name for Sitagliptin, is used with diet and exercise to lower blood sugar levels in
patients with type 2 diabetes. https://www.nlm.nih.gov/medlineplus/druginfo/meds/a606023.html
(last visited August 24, 2015).
On September 29, 2011, plaintiff was treated by Eileen McKeon, A.P.R.N. for
diarrhea and blood sugar problems.
Plaintiff had recently started Metformin for
management of her diabetes after limited success with Januvia and Amaryl. She
was aware that diarrhea was a side effect for Metformin. Plaintiff was advised to
take Metformin at night with dinner.
Plaintiff reported that she sometimes had
right upper quadrant pain, vision changes, and some tingling sensation to her feet
and fingers. She was unhappy with her blood sugar control and felt tired all of the
Nurse McKeon provided or reinforced diabetic education with plaintiff,
including diet, healthy lifestyle choices, water, limited caffeine intake, foot care,
and eye exams.
The nurse also ordered lab testing for plaintiff’s reported right
upper quadrant pain and advised plaintiff to follow up in three months.
Plaintiff returned to Dr. Conway’s office on November 23, 2011 with
complaints of back pain.
She began having pain in her mid-back
after carrying 18 chairs up and down stairs.
Her neck also had mild symptoms.
Plaintiff had been using an anti-inflammatory and ice with limited relief. Objective
examination indicated tenderness along the musculature in her back, as well as the
spine. There was no significant pain on rotation, but some pain on stretching. Dr.
Conway diagnosed plaintiff with back strain and advised rest, heat, a muscle
relaxer, and pain medication.
If her symptoms did not improve in a week, the
prescriptions for Hydrocodone-Acetaminophen 5-500 mg and Flexeril 10 mg.
On December 30, 2011, plaintiff visited Dr. Conway’s office for upper
respiratory symptoms. (Tr. 324–29). Plaintiff reported that she had had a knot in
her neck for four days with a sore throat. She also reported a persistent cough,
occasional wheezing, and mild dyspnea.
days ago with mild improvement.
Plaintiff had been given Zithromax two
Dr. Conway diagnosed plaintiff with acute
sinusitis and a cough. The doctor ordered her to take Phenergan19 with codeine for
her congestion and return if her symptoms worsened or failed to improve.
Plaintiff went to the emergency room at DePaul Health Center on January 4,
2012 for a five-hour visit. (Tr. 407–30). She reported a 2–3 day headache that
was mild at first but had progressively worsened. The headache was localized to
the right temporal area with a reported severity of 9 on a 10-point scale. Plaintiff
also complained of blurry vision in her right eye and mild nausea.
hospital course included tests of her C-reactive protein, sedimentation rate,
meningitis, pulse oximetry, comprehensive metabolic panel, complete blood count,
urinalysis, and a CT scan of her head. Her physical and funduscopic examinations
were normal, but her sedimentation rate was elevated.
The emergency care
physician discussed these results with an ophthalmologist and Dr. Conway and
advised plaintiff to follow up with these doctors.
Plaintiff was diagnosed with a
headache. She was given two doses of morphine in the hospital and prescribed a
Medrol dose pack20 and Vicodin on discharge.
Plaintiff returned to the emergency room the next day, complaining of
cramping, burning, and tight pain on the left side of her abdomen that began last
night after her discharge from the hospital. (Tr. 431–53). Plaintiff stated that she
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).
Medrol is the brand name for methylprednisolone, a corticosteroid, prescribed to relive
had taken Vicodin last night and it had helped with her pain. She was given two
doses of Dilaudid21 for the pain in the hospital. Plaintiff’s physical examination and
EKG were normal. Her labs and CT scan of her abdomen were also negative. The
emergency care physician diagnosed plaintiff with acute abdominal pain and
instructed her to be discharged.
On January 6, 2012, plaintiff had a follow-up appointment with her primary
care physician, Dr. Conway.
Plaintiff continued having some
abdominal pain, nausea, and a lack of appetite since her emergency room visits.
She also continued to have pain in her right scalp and some visual blurring
bilaterally, which she attributed to her high sugar levels.
Dr. Conway diagnosed
plaintiff with abdominal pain, a headache, and uncontrolled diabetes mellitus. The
doctor noted that plaintiff needed insulin management and fluids to control her
blood sugar levels. The doctor was concerned about plaintiff’s right temporal pain,
since she had been on steroids for almost 48 hours.
Dr. Conway recommended
plaintiff for direct admission to Mercy Hospital for symptom control and planned to
arrange a temporal artery biopsy.
Plaintiff was admitted to Mercy Hospital for testing and treatment for six
Throughout her hospitalization, she was found to have an
elevated sedimentation rate.
The treating physicians thought plaintiff most likely
had a migraine headache, but agreed that temporal arteritis could not be ignored.
Her temporal artery biopsy was negative. Plaintiff also had radiology testing for her
left upper quadrant pain. The x-ray of her abdomen showed no obstruction and the
.html (last visited on July 29, 2011).
CT scan and ultrasound of her abdomen identified no acute intra-abdominal
Her lab tests only showed a minimal elevation of her AST and ALT
that had been present for at least six months.
Fred H. Williams, M.D. thought
plaintiff’s pain was probably chronic and functional in nature, and possibly
exacerbated by her recent upper respiratory infection.
On January 19, 2012, plaintiff had a follow-up visit with Dr. Conway after her
After the negative temporal artery biopsy and
neurologic consultation, it was thought that plaintiff’s headaches were migraine in
Since then plaintiff reported some good relief with Imitrex.22
frustrated, however, by her continued high sugars. On physical examination, Dr.
Conway noted that plaintiff had a nicely healing incision on her temple and no
evidence of infection around the sutures.
The doctor diagnosed plaintiff with
uncontrolled diabetes mellitus and provided her with a Humalog23 pen and written
sliding scale for controlling her sugars. Her migraine headaches were now under
acceptable control. Plaintiff was instructed to call Dr. Conway next week with an
update as to her sugar levels and overall status.
Plaintiff returned to Dr. Conway’s office for suture removal and her blood
sugar problem on January 31, 2012. (Tr. 356–60). Plaintiff reported that she still
felt very tired and her sugars had not been well-controlled. She had been having
some sweats and leg cramps at night.
Her headaches also had continued at a
Dilaudid is a hydrogenated ketone of morphine indicated for management of pain. Phys. Desk. Ref.
2873-74 (65th ed. 2011).
Imitrex, the brand name for Sumatriptan, is a selective serotonin receptor agonist used to treat the
symptoms of migraine headaches.
https://www.nlm.nih.gov/medlineplus/druginfo/meds/a601116.html (last visited August 24, 2015).
Dr. Conway believed her symptoms were the result of uncontrolled
diabetes and instructed her to begin using 20 units of Lantus4 Solostar daily.
On February 16, 2012, plaintiff had a neurology consultation with Maheen
Malik, M.D. per Dr. Conway’s reference. (Tr. 503–04, 506–08). Plaintiff told Dr.
Malik that her headaches had started three years earlier and the blurred vision in
her right eye had started when her headaches had increased in January. Plaintiff
reported that Imitrex had helped substantially with pain, but made her sleepy. She
expressed frustration and felt overwhelmed by her medical issues.
status, motor and reflex examinations were all normal.
Per her sensory exam,
plaintiff had some decrease in light touch and pinprick sensation in the lower
extremities to just above the ankles bilaterally, in addition to hyperesthesia over
the dorsum of the feet and toes. Dr. Malik diagnosed plaintiff with migraines and
diabetic neuropathy. Plaintiff was encouraged to keep a headache diary and was
given prescriptions for Imitrex and Viibryd.24
On February 20, 2012, plaintiff had an appointment with a podiatrist, Samuel
T. Wood, D.P.M.
Plaintiff complained of burning, tingling
paresthesia-type problems to the tips of both toes and the bottom of both feet.
She also complained of pain to the lateral aspect of the right foot and ankle around
the subtalar joint.
These problems had developed six months ago and worsened
over the last two months.
Walking and wearing ill-fitting shoes aggravated the
Upon physical exam, the range of motion of her ankle, subtalar and mid-
Humalog, the brand name for insulin lispro, is an artificial insulin used to treat patients with type 2
diabetes who need insulin to control their diabetes.
https://www.nlm.nih.gov/medlineplus/druginfo/meds/a697021.html (last visited August 24, 2015).
tarsal joints was normal without any pain or crepitus on the right foot. On the left
foot, she had pain to the periphery of the fifth metacarpophalangeal joint dorsally
and laterally. An x-ray exam showed spurring to the plantar fascia insertion and
Dr. Wood assessed plaintiff with symptomatic probable diabetic
neuropathy of both feet, arthritis of the right subtalar joint, and possible
symptomatic tailor’s bunion.
The doctor ordered an EMG nerve conduction to
evaluate plaintiff’s neuropathy, provided an injection of lidocaine and Kenalog25 for
her subtalar right joint, instructed plaintiff to wear wide, padded shoes for her
bunion, and asked her to follow up in two weeks to see how the injection worked.
Based on the EMG nerve conduction study of plaintiff’s feet, Duane Turpin, D.O.
diagnosed plaintiff with peripheral polyneuropathy.
(Tr. 454–58, 468–69).
Turpin noted that the findings were mild and primarily sensory in nature.
Plaintiff sought mental health care from Psych Care Consultants on February
26, 2012. (Tr. 513). Plaintiff reported poor sleep and intrusive thoughts of family
Her depression had worsened gradually since December 2011.
prescribed dosage of Viibryd was decreased and Remeron26 was added to her
regimen. At her follow-up appointment with Dr. Wood on March 5, 2012, plaintiff
stated that her right foot was doing much better since the injection Dr. Wood gave
her. (Tr. 465). Dr. Wood noted that plaintiff’s EMG had shown mild and primarily
Viibryd, the brand name for Vilazodone, is a selective serotonin reuptake inhibitor used to treat
depression by increasing the amount of serotonin in the brain.
https://www.nlm.nih.gov/medlineplus/druginfo/meds/a611020.html (last visited August 24, 2015).
Kenalog, the brand name for Triamcinolone, is a corticosteroid with anti-inflammatory action.
https://www.nlm.nih.gov/medlineplus/druginfo/meds/a601124.html (last visited August 24, 2015).
Remeron, or Mirtazapine, is prescribed for the treatment of depression.
The doctor increased her dosage of Neurontin27
sensory findings of neuropathy.
and instructed her to follow up in three weeks.
Plaintiff was referred to Dana N. Brantley, N.P. at Saint Charles Clinic Medical
Group on March 14, 2012 for diabetic control. (Tr. 477–79). The nurse practitioner
noted that plaintiff did not comply with her prescribed diet, exercise, or medications
and her blood sugar continued to be uncontrolled.
Her weight had increased
steadily and she complained of blurred vision. Plaintiff stated that she had formerly
smoked, but quit on November 21, 2011.
The nurse practitioner increased
plaintiff’s Lantus insulin, Humalog, Amaryl and Metformin to treat her diabetes.
Plaintiff was instructed to monitor and call in her blood sugar numbers once a week
The nurse practitioner also discussed with plaintiff the risk factors
associated with diabetes and encouraged her to diet and exercise.
appointment with Dr. Malik the next day, it was noted that plaintiff’s sugars were
finally starting to improve.
Plaintiff returned to Dr. Conway’s office on April 3, 2012 for a shoulder injury
caused by a fall in February.
Her discomfort had systematically
worsened last Thursday when she ran into a cabinet. Her shoulder was comfortable
at rest, but uncomfortable with pressure and movement. She also told Dr. Conway
that her headaches were still present to a significant degree. Her blood sugars had
been under much better control.
Upon objective examination, plaintiff’s shoulder
demonstrated tenderness laterally and posteriorly with significant discomfort on
Dr. Conway suspected a rotator cuff injury and prescribed
Neurontin is used to help control certain types of seizures in people with epilepsy and to relieve the
pain of postherpetic neuralgia, the pain or aches that may occur after attack of shingles. It is also
plaintiff Lortab 5-500 mg as needed for pain. An x-ray of her right shoulder was
At her appointment with Dr. Malik on May 24, 2012, plaintiff stated that her
headaches were less in frequency, down to one or two a week.
neuropathy caused her to feel like she had pins and needles in her lower legs. She
did not tolerate Topamax28 and had stopped taking it. Her depression also had not
improved with Viibryd. Plaintiff was crying, crabby, and felt apathetic. Dr. Malik
added Cymbalta5 60 mg to plaintiff’s medication regimen and instructed her to
follow up in one month.
At a psychosocial evaluation with JoAnn Shrew, R.N. at
Psych Care Consultants on July 17, 2012 (Tr. 514–16), plaintiff stated that she felt
isolated, had decreased activities of daily living, was unable to work, was forgetful,
slept poorly, had low energy, had a poor appetite, and experienced chronic pain.
She had had flashbacks of her stepfather sexually abusing her and all four of her
Plaintiff had started smoking cigarettes again on March 12th.
examination, the nurse noted that plaintiff appeared well-groomed, cooperative,
tearful, depressed, anxious, oriented and had fair concentration.
plaintiff with a mood disorder and post-traumatic stress disorder.
prescribed to treat restless legs syndrome, diabetic neuropathy, and hot flashes.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a694007.html (last visited on January 29, 2015).
Topiramate, brand name Topamax, is an anticonvulsant that is used to prevent migraine headache
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).
assigned plaintiff a Global Assessment of Functioning (GAF) score of 30,29 added
Seroquel30 50 mg to plaintiff’s treatment plan and advised weekly therapy.
A lumbar spine radiograph to assess plaintiff’s low back pain on December 4,
2012 showed early anterior longitudinal ligament ossification from L1 to L4, but was
(Tr. 521, 582).
A lumbar spine MRI on December 12, 2012
showed minimal degenerative changes of the lumbar spine.
(Tr. 522, 583–86).
Specifically, at L5-S1 plaintiff had a mild bulging disc that was more severe on the
left side and mild left neural foraminal narrowing with no facet arthropathy and no
central canal stenosis. Plaintiff was examined at the Breakthrough Pain Relief Clinic
on February 20, 2013 for low back and left leg pain. (Tr. 524–25). Standing in the
same position or sleeping on her left side made the pain feel worse. Pain medicine
and changing positions made her feel better.
An examination showed nerve
irritation and possible nerve damage contributing to her pain.
recommended twelve rehabilitation visits to treat plaintiff’s spine. A lumbar spine
MRI on March 8, 2013 showed mild degenerative changes of the lumbar spine with
no compression of the conus or cauda equine. (Tr. 587–89).
Dr. Wessels referred plaintiff to Peter K. Yoon, M.D. for a neurosurgical
evaluation of plaintiff’s low back pain on March 25, 2013. (Tr. 533–37). Plaintiff
stated that the pain had developed gradually approximately four months ago, had
an aching, dull, and sharp quality, and radiated into the left L5 and posterior leg
into the dorsum of the foot distribution.
The pain waxed and waned in severity
A GAF of 21-30 corresponds with “[b]ehavior . . . considerably influenced by delusions or
hallucinations OR serious impairment in communications or judgment OR inability to function in all
areas.” American Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders - Fourth
Edition, Text Revision 32-33 (4th ed. 2000).
throughout the day.
It was aggravated by bending, lifting and sitting.
therapy and epidural steroids were ineffective in alleviating the pain.
reviewed plaintiff’s radiology reports and images.
Upon physical examination,
plaintiff had a normal spinal range of motion, normal paraspinal muscle strength
and tone, and no joint or limb tenderness to touch in her lower extremities. She
had some weakness on the left with a straight leg raising test. Her neurologic and
mental examinations were normal.
Dr. Yoon assessed plaintiff with lumbosacral
The doctor thought her symptoms were most consistent with L5
radiculopathy, but he noted that her MRI did not show any significant pathology to
account for this finding.
Dr. Yoon ordered a lumbar myelography to see if that
would reveal any significant pathology to account for plaintiff’s pain. The lumbar
myelogram was radiographically normal.
(Tr. 539–40, 591–92).
myelogram CT of plaintiff’s lumbar spine, however, showed left foraminal and
lateral L5-S1 disc herniation, disc bulge, and lumbar spondylosis. (Tr. 538, 590).
Dr. Yoon performed a far lateral transfacetal discectomy at L5-S1 for
plaintiff’s disc herniation at Mercy Hospital on April 16, 2013. (Tr. 549). A week
after the operation, she had her wound checked by Dr. Yoon.
Plaintiff stated that two or three days earlier she felt a pop and had drainage. At
that time she had generalized muscle aches, particularly in the posterior neck. Dr.
Yoon looked at her incision and noticed irritation from the bandages. The doctor
thought seroma was the most likely clause. He cleaned the wound and diagnosed it
as an uncomplicated skin infection. Plaintiff did not want lab work and opted to be
Seroquel is indicated for the treatment of acute manic episodes associated with bipolar I disorder
and schizophrenia. See Phys. Desk Ref. 691 (61st ed. 2007).
placed on an empiric antibiotic for a week. Plaintiff was educated on symptoms of
infection and told to record her temperatures and call if she had a fever.
Dr. Wessels referred plaintiff to see Heidi Prather, D.O. at Washington
University Orthopedics on July 24, 2013.
(Tr. 1004–06, 1041–43).
alternated between sitting and standing throughout the appointment.
uncomfortable and tearful during the examination.
Upon physical examination,
plaintiff had pain with flexion and extension, with her side bending limited to the
right as compared to the left. She had full strength. Plaintiff also had pain with
internal and external rotation on either side of her back. Dr. Prather was unable to
do the active straight leg raise test because of plaintiff’s pain.
diagnosed plaintiff with low back pain, status post-discectomy, and left L5 radicular
pain. The doctor wanted plaintiff to have blood work to ensure her sedimentation
and C-reactive protein levels were not low and prescribed plaintiff Meloxicam.11
A lumbar spine MRI from Barnes Jewish Hospital on July 25, 2013 showed
mild degenerative changes of the lumbar spine with multilevel degenerative disc
disease at L1-L2, L4-L5 and L5-S1. (Tr. 979–80, 1046–48). Also, the MRI showed
interval development of edema within the left posterior paraspinal tissues at the L4S1 levels, which possibly was secondary to interval rupture of the previously seen
synovial cyst emanating posteriorly from the L4-L5 facet joint, represented active
synovitis of the L4-L5 facet joint, or alternatively was related to change from recent
interventional therapy such as facets or epidural injections. A lumbar spine MRI on
August 2, 2013 showed mild degenerative changes of the lumbar spine with
multilevel degenerative disc disease at L1-L2, L4-L5, and L5-S1.
1044–45). The previously visualized edema in the left posterior paraspinal tissues
at the L4-S1 levels was unchanged compared to the July 25th exam. The region
demonstrated diffuse intense enhancement in the left epidural space medial of the
left facet. It was noted that this most likely represented an inflammatory reaction
without definable abscess or discitis.
At her appointment with Dr. Prather on August 12, 2013, the doctor noted
that plaintiff’s repeat MRI examinations showed diffuse edema in the paraspinal
tissues and epidural space. (Tr. 1040). Dr. Prather discussed these results with
Dr. Buchowski and two other members of the infectious disease team who agreed
to admit her to the hospital for IV antibiotics and possible aspiration.
consented and proceeded to direct admission.
Upon admission to Barnes Jewish
Hospital, Jeffrey Lynn Gum, M.D. noted that plaintiff was admitted to the hospital
with a failed discectomy and concern for discitis.
A portable AP
radiograph of plaintiff’s chest showed placement of a right peripherally inserted
central venous catheter (PICC) and small lung volumes that were otherwise clear.
The cardiomediastinal silhouette was normal.
On discharge from the hospital the next day, plaintiff’s diagnosis was discitis.
(Tr. 619–25). Her prescription medications at that time included: AcetaminophenOxycodone31 325 mg-5 mg every four hours as needed for pain; Cefepime32 2 g
injection every 12 hours for a bone infection; Cholecalciferol 2000 units every day
for a vitamin D deficiency; Cymbalta 60 mg every day for depression; Diazepam33 5
Oxycodone Acetaminophen is also known as Percocet. Oxycodone is an opioid analgesic indicated
for relief of moderate to moderately severe pain. It can produce drug dependence. See Phys. Desk.
Ref. 1114 (60th ed. 2006).
Cefepime is an antibiotic used to treat infection.
https://www.nlm.nih.gov/medlineplus/druginfo/meds/a698021.html (last visited August 24, 2015).
Diazepam is used to relieve anxiety, muscle spasms, and seizures and to control agitation caused by
alcohol withdrawal. http://www.nlm.nih.gov/medlineplus
mg every six hours for muscle spasms; Divigel 0.25 mg once a day as an estrogen
supplement; Flexeril 10 mg every eight hours for spasms; Gabapentin34 300 mg
three tablets three times a day for pain; Hepann Flush 10 units/mL, 5 mL every 12
hours for flushing plaintiff’s PICC line; Humalog 100 units/mL, 8 units with meals
for high blood sugar; Humalog sliding scale; Hydroxyzine10 Hydrochloride 25 mg
every 4–6 hours as needed for pain; Insulin Glargine 100 units/mL, 26 units once a
day for high blood sugar; Meloxicam 15 mg orally once a day for pain; Metformin
1000 mg once a day for diabetes; Protonix2 40 mg once a day for GERD; Senna S
50 mg-8.6 tablets twice a day for constipation; Sodium Chloride 0.9% irrigation,
10-80 mL IV push every 8 hours for flushing the central line; Vancomycin35 1 g
every 12 hours for bone infection; and Zolpidem12 5 mg orally once a day for sleep
aid. Plaintiff would have in-home care for the next six weeks, including routine lab
testing once or twice a week.
From August 14, 2013 to September 1, 2013, plaintiff had ten visits from BJC
Home Care Services nurses to treat her discitis.
(Tr. 660–76, 776–40, 859–60).
She was on IV antibiotics for the infection via a PICC line. At each visit, the nurses
took notes of plaintiff’s subjective reports of lower back pain and assessed plaintiff’s
mental and physical status.
The nurses ensured that plaintiff’s PICC line was
properly attached, flushed, and cleaned, and that her family understood how to
administer antibiotics. On several occasions, the nurses noted that plaintiff did not
/druginfo/meds/a682047.html (last visited on Mar. 9, 2011).
Gabapentin is used to help control seizures, to relieve the pain of postherpetic neuralgia, and
restless leg syndrome. http://www.nlm.nih.gov/medlineplus/druginfo
/meds/a694007.html (last visited on Sept. 1, 2011).
Vancomycin is a glycopeptide antibiotic used to treat intestinal inflammation that may occur after
antibiotic treatment. https://www.nlm.nih.gov/medlineplus/druginfo/meds/a604038.html (last visited
August 24, 2015).
consistently check her blood sugars in the morning as advised. (Tr. 794, 802, 810,
Timothy J. Koboldt, M.D. requested an MRI and radiography of plaintiff’s
lumbar spine on August 31, 2013. (Tr. 554–56, 557, 598–99). The MRI showed a
slight interval decrease in edema along the left paraspinal musculature posteriorly
at L5-S1 with no evidence of discitis or epidural fluid infection. It was noted that
this likely represented sequela of the prior ruptured synovial cyst.
showed mild, stable degenerative disc disease.
The MRI also
The frontal, lateral radiography
similar showed mild degenerative disc disease at L4-L5.
On September 1, 2013, plaintiff was transferred to an in-patient facility at
Barnes Jewish Hospital for a PICC line infection. (Tr. 841). A new PICC line was
placed in plaintiff’s upper arm. (Tr. 626–32). After her discharge on September 4,
2013, plaintiff had thirteen more home visits from BJC Home Care Services nurses
with regular lab testing to monitor the administration of IV antibiotics for her
infection. (Tr. 677–75). The nurses routinely noted that pain medication controlled
or alleviated plaintiff’s back and abdomen pain. (Tr. 678, 685, 693, 701, 709, 723,
731, 738, 753, 761, 769)
A microbiology report was negative for Clostridium
difficile36 toxin on September 16, 2013.
(Tr. 868, 910).
By October 17, 2013
plaintiff’s back incision had healed and she had completed her IV antibiotics. Her
PICC line was pulled and she was discontinued from home care services. (Tr. 677–
83, 853). The antibiotics plaintiff was administered for spinal infection alternated
from Vancomycin and Cefepime to Daptomycin and Meropenem to Clindamycin and
Ciprofloxacin for a total of nine weeks of antibiotics. (Tr. 932).
Clostridium difficile is a bacterium that causes diarrhea and more serious intestinal conditions such
as colitis. https://www.nlm.nih.gov/medlineplus/clostridiumdifficileinfections.html (last visited August
A CT exam of plaintiff’s abdomen and pelvis on October 31, 2013 showed
liquid contents within the colon in keeping with plaintiff’s given history of diarrhea.
(Tr. 563–64, 600–01).
The CT scan did not show evidence of colitis (large
intestinal inflammation), abscess, or other acute pathology within the abdomen or
pelvis. Diffuse hepatic steatosis (fatty liver) was also shown. A lumbar spine MRI
on November 1, 2013 showed minimal unchanged degenerative changes of the
lumbar spine in comparison to plaintiff’s August 31st MRI. (Tr. 566–67, 602–03).
The MRI further showed slight interval improvement of paraspinal edema and no
abscess. Discharge instructions from Barnes Jewish Hospital on November 3, 2013
indicated that plaintiff had been diagnosed with diarrhea and abdominal pain that
was presumed Clostridium difficile colitis. (Tr. 568–72, 633–37).
On December 2, 2013, plaintiff told Dr. Prather that she was still having quite
a bit of back pain. (Tr. 1039). Her sedimentation and C-reactive protein levels had
also been high.
Dr. Prather noted that plaintiff had recently been treated for
gastrointestinal gastritis and it was thought plaintiff had Clostridium difficile, but
plaintiff never cultured positive for the bacteria.
Surgery had not been
recommended. A repeat MRI still showed edema, but no fluid match. There was
no active edema found within the disc itself. Dr. Prather noted that plaintiff could
not sit still and shifted or unloaded her weight in the office chair.
assessed plaintiff with low back pain, lumbar radiculopathy with a history of
infection. Plaintiff had maxed out on all of her medications, so Dr. Prather wanted
to follow up with her after she had seen a gastroenterologist.
At her follow-up
appointment with Dr. Prather on December 18, 2013, the doctor informed plaintiff
that the studies were normal and had no electrodiagnostic findings of peripheral
neuropathy or lumbar radiculopathy. (Tr. 1037). Dr. Prather planned to re-route
plaintiff back to the infectious disease team, since she could not treat plaintiff in the
orthopedic department with a high sedimentation rate.
A lumbar spine MRI conducted on December 26, 2013 re-demonstrated postoperative changes of prior left L5-S1 discectomy. (Tr. 604–06, 938–39). Also, the
MRI showed mild progressive increase in left L5 vertebral body enhancement and
edema with concomitant decrease in left paraspinal enhancement and edema. The
resulting report noted that this probably represented an inflammatory postoperative
scarring process, including endplate changes related to progressive L5-S1 disc
An indolent infection was less likely given the progressive
spontaneous improvement in left paraspinal enhancement and edema.
In physician discharge notes from Richard D. Brasington, Jr., M.D. at Barnes
Jewish Hospital on December 27, 2013, it was noted that plaintiff’s back pain had
initially improved after her antibiotic cycle with in-home care service, but the pain
had recurred in the past month. (Tr. 932–37, 638–42, 940–43). The pain was in
the left side of her lower back, central in origin, and radiated down her left leg. She
reported that Vicodin helped the pain, but only numbed it. Plaintiff also complained
of mild right upper quadrant abdominal pain with nausea.
Dr. Brasington found
that plaintiff’s abdominal pain was likely due to gastroenteritis rather than
hyperglycemia and provided her Compazine37 for nausea.
The doctor continued
plaintiff on Viibryd for her depression, Lantus for her diabetes, and Vicodin and
Gabapentin for her back pain. The lesion seen on the MRI from December 26th was
The diagnosis was marrow fibrosis with no evidence of
osteomyelitis. (Tr. 954–55).
At a follow-up appointment with Dr. Prather on January 23, 2014 (Tr. 1036),
plaintiff had pain with forward flexion and slump sit. Dr. Prather reviewed plaintiff’s
last MRI, which she noted showed marked resolution of edema in the paraspinal
Dr. Prather discussed doing an S1 nerve block without steroids with
plaintiff. She also switched plaintiff from Gabapentin to Lyrica38 and put her back
on Cymbalta 60 mg for better pain control.
On March 15, 2014, plaintiff had a consultative appointment with Vivian
Knipp, Ph.D., a Missouri licensed psychologist. (Tr. 984–87). Dr. Knipp noted that
plaintiff appeared to be a reliable and credible historian, although she had difficulty
recalling exact dates of events at times. Plaintiff told Dr. Knipp that she had had
significant mood problems since January 2012.
She was treated with medication
for depression and was in counseling from July 2012 to April 2014 with JoAnn
Shew, R.N. Plaintiff felt the counseling was very helpful, but stopped going due to
difficulty making it to appointments since her back surgery and due to her reported
pain levels. Plaintiff admitted to smoking, but said she was trying to quit by using
nicotine vapor. Dr. Knipp observed that plaintiff was adequately groomed, wore a
back brace, walked slowly, and had difficulty sitting during the interview. Plaintiff
stood and leaned forward on the desk for much of the evaluation and occasionally
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).
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).
walked about the office.
Plaintiff’s responses to Dr. Knipp’s questions were
coherent, logical and responsive.
Plaintiff appeared anxious and depressed during the evaluation.
expressed feelings of loneliness, sadness, and anxiety.
She described intrusive
thoughts about past abuse and feelings of guilt about not being able to prevent the
abuse to herself or her siblings. Plaintiff perseverated about her inability to work
and do things at home for her family. As to her level of daily functioning, plaintiff
reported that she was able to pay bills, cook, do household chores, and care for her
personal needs. She was not able to lift or stand for long periods of time. She was
sometimes able to go grocery shopping depending on her pain level.
reported that she had many friends, but did not see them often due to not being
able to get out and do things like she used to do. Plaintiff was concerned she would
not be able to go back to work because of her medical conditions, although she
expressed a desire to do so.
At this time, her stress levels were very high and
interfered with her concentration and ability to complete tasks in a timely manner.
Plaintiff had had limited improvement with medication but felt counseling was very
helpful for her mood.
Dr. Knipp diagnosed plaintiff with moderate persistent
depressive disorder with persistent major depressive episode and post-traumatic
stress disorder for at least the past two years. The doctor noted that plaintiff had a
complicated medical history and clear limitations in her activities at that time. Dr.
Knipp opined that ongoing counseling would be beneficial for plaintiff and that her
mood might improve if her medical conditions stabilized. However, at that time Dr.
Knipp thought it unlikely plaintiff could maintain consistent employment.
Dr. Knipp also completed a Mental Medical Source Statement for plaintiff
regarding her ability to do work-related activities after her consultative evaluation
on March 15, 2014.
Dr. Knipp opined that plaintiff had no
restrictions in her abilities to understand, remember, and carry out simple
instructions or make judgments on simple work-related decisions.
moderate restrictions on her abilities to understand, remember and carry out
complex instructions, or make judgments on complex work-related decisions. Dr.
Knipp based these conclusions on plaintiff’s problems with sustained concentration,
persistence and pace; specifically, Dr. Knipp noted that plaintiff had intrusive
thoughts about abuse that resulted in episodes of anxiety and depression.
Plaintiff’s ability to interact appropriately with supervisors, co-workers and the
public was not affected by her impairments. Dr. Knipp also opined that plaintiff was
unable to sit for extended periods of time or stand for long periods of time without
support, based on her observations of plaintiff during the evaluation that same day.
Finally, Dr. Knipp stated that plaintiff’s mental limitations were first present in at
least January 2012.
Plaintiff also had a consultative neurology examination on March 15, 2014
with Riaz A. Naseer, M.D.
Plaintiff reported that she had been
experiencing pain in her whole body all the time at a level of 15 on a 10-point
scale. Dr. Naseer observed that plaintiff came to the office walking independently
but slowly, and had slight difficulties getting on and off the examination table. A
motor examination revealed that plaintiff had normal strength and tone in her
upper and lower extremities with no obvious wasting of the small or large muscles.
She had a decreased range of motion in the right shoulder and on forward,
backward, and lateral bending. Sensory examination revealed decreased sensation
distally in both lower extremities.
Dr. Naseer’s clinical impressions of plaintiff
included diabetes mellitus, diabetic neuropathy, residual back pain despite surgery,
and chronic pain syndrome diffuse in nature, constant, severe, and unresponsive to
Dr. Naseer also completed a Physical Medical Source Statement regarding
plaintiff’s ability to do work-related activities on March 15, 2014. (Tr. 998–1003).
Dr. Naseer opined that plaintiff could frequently lift or carry up to 10 pounds,
occasionally lift or carry up to 20 pounds, and never lift or carry over 20 pounds.
Plaintiff could sit, stand or walk for up to one hour at a time without interruption in
an 8-hour workday, for a total of six hours sitting, one hour standing and one hour
Plaintiff did not use a cane to ambulate and did not need one.
respect to the use of her hands, plaintiff could frequently reach, handle, finger and
feel, and occasionally push or pull with either hand. As to her use of feet, plaintiff
occasionally could operate foot controls with either foot. Plaintiff could never climb
stairs, ramps, ladders, or scaffolds, balance, stoop, kneel, crouch, or crawl. With
respect to environmental limitations, plaintiff could never tolerate unprotected
heights or moving mechanical parts.
She could occasionally operate a motor
vehicle, and occasionally tolerate humidity, wetness, dust, odors, fumes, extreme
cold or heat, and vibrations. Plaintiff needed to be in quiet environments. Finally,
plaintiff could go shopping, travel without a companion for assistance, ambulate
without an aid, use standard public transportation, climb a few steps at a
reasonable pace with the use of a single hand rail, prepare a simple meal and feed
herself, care for her personal hygiene, and sort, handle or use files. However, she
could not walk a block at a reasonable pace on rough or uneven surfaces.
On March 25, 2014, plaintiff was admitted to the emergency room at Barnes
Jewish West County Hospital with several complaints.
she complained of right upper quadrant pain that was spasm-like, lasted about a
minute at a time, and subsided then returned. She stated that she had had similar
symptoms when she had a gallstone. Plaintiff’s second complaint was of a petechial
rash on her right hand extending almost to the elbow. She had been using Bactrim
and had improvement. Plaintiff also had some pain around her left eye, and her
husband stated that the left side of plaintiff’s face was dropped compared to
Finally, plaintiff reported that her blood sugars had been high recently.
Upon physical examination, plaintiff did not appear to be in acute distress, but did
have notable left-sided facial droop.
Martin Kerrigan, M.D. decided to treat plaintiff’s reported abdominal pain as
possible mild pancreatitis and give her aggressive IV fluids for symptomatic control.
He would check plaintiff’s ultrasound in the morning to see if there was evidence of
filling defect or ductal dilatation. As to plaintiff’s abnormal facial palsy, Dr. Kerrigan
noted that her examination seemed to be most consistent with a lower motor
neuron issue and Bell’s palsy.39 In the doctor’s experience, this condition was more
common in the diabetic population. The doctor planned to cautiously start plaintiff
on Prednisone40 and try to get ahead of things with insulin since she was still
Bell’s palsy is a cause of facial paralysis that most commonly occurs with persons who are pregnant,
diabetic, or sick with a cold or flu. https://www.nlm.nih.gov/medlineplus/bellspalsy.html (last visited
August 25, 2015).
Prednisone is a corticosteroid used to treat the symptoms of low corticosteroid levels, in addition to
certain types of arthritis, severe allergic reactions, multiple sclerosis, lupus and certain conditions that
markedly hyperglycemic. The doctor would also check with plaintiff’s neurologist to
confirm his assessment. With respect to plaintiff’s diabetes and hyperglycemia, Dr.
Kerrigan suspected that plaintiff was noncompliant with insulin even though she
stated she was compliant.
For plaintiff’s chronic back pain, the doctor would
continue plaintiff on Cymbalta and Lyrica.
For her GERD, the doctor continued
plaintiff on Pantoprazole.2 A CT head scan performed that day showed no acute
intracranial process. (Tr. 1031–32).
The next day in the hospital, plaintiff reported improvement in her symptoms
from use of Prednisone.
By observation, she still had left facial
weakness and was going to therapy for her facial muscles.
A limited abdominal
sonogram that day showed a 6 millimeter stone in the common duct with resultant
mild dilatation measuring 8 millimeters. (Tr. 1033–34). Plaintiff’s final diagnoses
upon discharge from the hospital on March 27, 2014 included impacted common
bile duct stone, Bell’s palsy, and uncontrolled diabetes mellitus.
Plaintiff’s right upper quadrant abdominal pain was treated with Hydromorphone41
and was improving. The gastrointestinal team recommended outpatient endoscopic
retrograde cholangiopancreatography (ERCP),42 which was scheduled for the
coming Monday with Dr. Azar. Plaintiff’s facial palsy was treated with Prednisone
60 mg for one week. Dr. Rai from the neurology team agreed with this evaluation
and felt that no other work-up was necessary at this point. The hospital also gave
affect the lungs, skin, eyes, kidneys, blood, thyroid, stomach and intestines.
https://www.nlm.nih.gov/medlineplus/druginfo/meds/a601102.html (last visited August 25, 2015).
Hydromorphone is an opiate analgesic used to relieve severe pain.
https://www.nlm.nih.gov/medlineplus/druginfo/meds/a682013.html (last visited August 25, 2015).
An endoscopic retrograde cholangiopancreatography is a procedure that combines upper
gastrointestinal endoscopy and x-rays to diagnose and treat problems of the bile and pancreatic
plaintiff artificial tears, and she felt her difficulty closing her eye was improving
prior to discharge.
Dr. Kerrigan suspected that plaintiff’s poorly controlled diabetes was in part
related to noncompliance, and found that Dr. Wessels also was suspicious of that.
When plaintiff was admitted to the emergency room, her blood sugar level was 414
and she was again placed on Lantus and NPH43 to take along with Prednisone. With
those medications, plaintiff’s sugar level was better controlled. By discharge, her
morning glucose level was 134, suggesting that her Lantus dose was probably fairly
appropriate. Plaintiff was discharged on her regular medications and instructed to
be compliant with them. She also was advised on a diabetic diet. A letter from Dr.
Wessel’s office on May 19, 2014 stated that plaintiff had had a very complex
medical history with numerous complications over the past two years that had left
her unable to work. (Tr. 1035).
III. The ALJ’s Decision
In the decision issued on July 28, 2014, the ALJ made the following
Plaintiff meets the insured status requirements of the Social
Security Act through December 31, 2016.
Plaintiff has not engaged in substantial gainful activity since
December 30, 2011, the alleged onset date.
Plaintiff has the following severe impairments: degenerative
disc disease of the lumbar spine status post-laminectomy with
radiculopathy; type II diabetes mellitus; diabetic peripheral
ducts. http://www.niddk.nih.gov/health-information/health-topics/diagnostictests/ercp/Pages/diagnostic-test.aspx (last visited August 25, 2015).
NPH insulin, neutral protamine Hagedorn, is an intermediate-acting insulin used to help control
blood sugar levels in patients with diabetes. https://en.wikipedia.org/wiki/NPH_insulin (last visited
August 25, 2015).
neuropathy; obesity; depressive disorder; and post-traumatic
stress disorder (PTSD).
Plaintiff does not have an impairment or combination of
impairments that meets or medically equals the severity of one
of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Plaintiff has the residual functional capacity to perform
sedentary work as defined in 20 C.F.R. 404.1567(a), with the
following additional limitations: she can occasionally stoop;
cannot kneel, crouch, crawl, climb ramps or stairs, or climb
ropes, ladders or scaffolds; can occasionally push or pull with
the bilateral upper extremities; is unable to operate any foot
control operations; must avoid concentrated exposure to
extreme vibration; must avoid all operational control of moving
machinery, working at unprotected heights, and use of
hazardous machinery; and is limited to work that involves only
simple, routine, and repetitive tasks in a low-stress job, defined
as one requiring only occasional decision-making and only
occasional changes in the work setting.
Plaintiff is unable to perform any past relevant work.
Plaintiff was born on October 26, 1964 and was 47 years old,
which is defined as a younger individual age 45–49, on the
alleged disability onset date.
Plaintiff has at least a high school education and is able to
communicate in English.
Transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a
framework supports a finding that plaintiff is “not disabled,”
whether or not plaintiff has transferable job skills.
Considering plaintiff’s age, education, work experience, and
residual functional capacity, there are jobs that exist in
significant numbers in the national economy that plaintiff can
Plaintiff has not been under a disability, as defined in the Social
Security Act, from December 30, 2011, through the date of the
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 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).
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
“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).
In determining a claimant’s RFC, the ALJ must evaluate the claimant’s
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
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).
If the claimant is prevented by her impairment from doing any other work,
the ALJ will find the claimant to be disabled.
In her brief, plaintiff argues that the ALJ did not properly evaluate the
severity of her spinal infection and rotator cuff, failed to provide adequate reasons
for rejecting the contrary opinions of examining medical consultants, did not
provide sufficient weight to the opinion of her nurse practitioner, and failed to
consider the effect of her spinal infection and rotator cuff on her ability to work in
the RFC assessment.
A. Plaintiff’s Severe Impairments
The ALJ found that plaintiff had the severe impairments of degenerative disc
disease post-laminectomy with radiculopathy, type II diabetes mellitus, diabetic
peripheral neuropathy, obesity, depressive disorder, and post-traumatic stress
The ALJ found a number of plaintiff’s other conditions to be
non-severe impairments, including her spinal infection (discitis) and right shoulder
rotator cuff injury. (Tr. 13–14). These latter two conditions, the ALJ noted, did not
satisfy the durational requirement.
Plaintiff argues that these two impairments
lasted 12 months or longer and had more than a minimal effect on her ability to do
basic work activities, and thus should have been considered severe.
To establish entitlement to disability benefits, a plaintiff must have a
medically determinable impairment that can be expected to result in death or that
has lasted or can be expected to last for a continuous period of not less than 12
months. 20 C.F.R. §§ 404.1505(a), 404.1509 (titling this prerequisite the “duration
An impairment is severe if it significantly limits an individual’s
physical or mental abilities to do basic work activities. SSR 96-3p. An impairment
is not severe if it does not significantly limit or has no more than a minimal effect
on the plaintiff’s physical or mental ability to do basic work activities. 20 C.F.R. §
“To be found disabled, an individual must have a medically
determinable ‘severe’ physical or mental impairment or combination of impairments
that meets the duration requirement.” SSR 96-3p.
With respect to plaintiff’s spinal infection, the ALJ noted that plaintiff
underwent a laminectomy procedure at the L5-S1 level of the lumbar spine in April
2013. (Tr. 13). She underwent an MRI scan of the lumbar spine on July 25, 2013
after experiencing worsened pain following the surgery, which showed edema
within the left posterior paraspinal tissues at the L4-S1 levels. A second MRI scan
on August 2, 2013 showed edema in that region again, as well as involvement of
the left epidural space medial to the left facet, the left margin of the L5-S1 disc,
and the medial left paraspinal muscles adjacent to the spinal process.
these findings were thought to represent an inflammatory reaction, plaintiff was
hospitalized and treated with antibiotics. On August 13, 2013, she was discharged
with a diagnosis of discitis.
Between August 14, 2013 and October 17, 2013,
plaintiff underwent a two-month course of intravenous antibiotics, monitored by inhome health care nurses.
She experienced some improvement of her back pain
symptoms, but in December 2013 she required a hospitalization for treatment of
recurrent back pain, thought potentially to be due to a paraspinal infection or
An additional MRI scan of the lumbar spine revealed a mild,
progressive increase in the left L5 vertebral body enhancement and edema. These
findings were thought to represent an inflammatory and post-operative scarring
process. A biopsy of the L5 vertebra performed later that month showed marrow
fibrosis but no sign of osteomyelitis.
As the ALJ noted, the record contains no
further objective medical evidence showing persistence or recurrence of plaintiff’s
spinal infection after December 2013.
Thus, plaintiff has not shown through
medical evidence that her spinal infection lasted or was expected to last at least 12
consecutive months. Based on the Court’s review of the medical record confirming
the ALJ’s summary of plaintiff’s medical history with regard to her spinal infection,
the ALJ did not err in finding plaintiff’s spinal infection to be non-severe.
With respect to plaintiff’s right shoulder rotator cuff injury, the ALJ noted that
plaintiff reportedly fell in February 2012 and sustained a right shoulder injury. (Tr.
At a primary care appointment in April 2012, she exhibited tenderness to
palpation of the shoulder, in addition to pain with shoulder rotation and positive
impingement signs. Thereafter she was diagnosed with a rotator cuff injury of the
Plaintiff reportedly underwent surgical repair of this injury on June
The ALJ found that the record contains no additional medical evidence
regarding plaintiff’s right shoulder impairment, other than one isolated finding of
slightly decreased range of motion of the right shoulder at a neurological
consultative examination in March 2014.
The ALJ further found that the medical
evidence does not show plaintiff complained of right shoulder pain or any
associated functional limitations to her treatment providers after June 2012. The
Court has reviewed the medical evidence in the record and confirmed the ALJ’s
summary of the evidence as it relates to plaintiff’s right shoulder rotator cuff injury.
As such, plaintiff’s shoulder condition did not last at least 12 consecutive months as
required to satisfy the durational requirement, and the evidence supports the ALJ’s
finding that plaintiff’s rotator cuff injury was non-severe.
B. The ALJ’s Evaluations of the Medical Opinions
Plaintiff also contends that the ALJ erred in failing to provide adequate
reasons for rejecting the contrary opinions of the examining medical consultants
and for according “little, if any” weight to the opinion of plaintiff’s nurse
Plaintiff does not identify the medical consultants and nurse
practitioner by name in the argument section of her brief. However, she discusses
the opinions of consultative examiners Riaz Naseer, M.D. and Vivian Knipp, Ph.D.
and psychiatric nurse JoAnn Shew, R.N. in the brief’s statement of facts.
contention regarding the ALJ’s error in failing to explain the weight given to medical
opinions appears to refer to these medical consultants and treating nurse.
The Social Security Administration’s regulations define “medical opinions” as
“statements from physicians and psychologists or other acceptable medical sources
that reflect judgments about the nature and severity” of a plaintiff’s impairments,
including symptoms, diagnosis, what the plaintiff can do despite his or her
impairment, and the plaintiff’s mental or physical restrictions.
20 C.F.R. §
404.1527(a)(2). “Acceptable medical sources” are licensed physicians, licensed or
certified psychologists, or other licensed medical specialists for purposes of
establish a medically determinable impairment in their field of specialty only. 20
C.F.R. § 404.1513(a). Nurse practitioners are considered “other sources” the Social
Security Administration may use evidence from to consider the severity of a
claimant’s impairment and how it affects the claimant’s ability to work.
However, “other sources” cannot establish the existence of a
medically determinable impairment. Sloan v. Astrue, 499 F.3d 883, 888 (8th Cir.
2007) (citing SSR 06-3p).
1. Dr. Naseer
In determining plaintiff’s physical RFC, the ALJ gave some weight to the
opinion of neurological consultative examiner Dr. Naseer. (Tr. 24–25). Dr. Naseer
examined plaintiff and completed a physical medical source statement for plaintiff
on March 15, 2014, as summarized in plaintiff’s medical history above. (Tr. 992–
The ALJ found that Dr. Naseer’s opinion regarding plaintiff’s
abilities to lift, carry, stand, walk and sit was generally consistent with and
supported by the objective medical evidence in the record. However, the ALJ found
that Dr. Naseer’s findings on examination and the other medical evidence in the
record did not support the degree of postural, manipulative, and environmental
Specifically, while Dr. Naseer opined that plaintiff could
never stoop, diagnostic imaging, including lumbar spine MRI exams, CT scans and
radiography, showed only mild to minimal degenerative changes of two levels of
the lumbar spine, suggesting that plaintiff retained the ability to stoop on an
occasional basis. (Tr. 522, 538, 554, 557, 594, 979–80).
Also, the ALJ found that Dr. Naseer’s opinion that plaintiff had limited abilities
to use her bilateral upper extremities for pushing, pulling and other manipulative
activities was unsupported by the record. On examination, Dr. Naseer found that
plaintiff had normal bilateral upper extremity and grip strength with normal range
of motion in the wrists and near-normal range of motion in the elbows. As noted
by Dr. Naseer, plaintiff was able to fully extend her hands, make fists, and oppose
the fingers. Dr. Naseer did not note any sensory or other objective abnormalities of
either hand. Plaintiff’s treating physician also had observed her exhibiting normal
bilateral upper extremity and grip strength. (Tr. 550–51). The record contains no
objective findings of abnormal grip strength, upper extremity strength, upper
extremity sensation, coordination, or fine or gross motor skills. Furthermore, the
ALJ noted that plaintiff had no medically determinable impairment that could
reasonably be expected to limit her ability to tolerate exposure to pulmonary
irritants and medical evidence did not support Dr. Naseer’s opinion that plaintiff had
extremely limited abilities to tolerate exposure to noise. The record did not show
that plaintiff ever expressed symptoms of phonophobia associated with her
In explaining the overall weight given to Dr. Naseer’s opinion, the ALJ noted
that while Dr. Naseer’s opinion was based on a thorough examination of plaintiff, he
reviewed only a limited portion of plaintiff’s prior medical records before rendering
his opinion. Dr. Naseer did not have a treating relationship with plaintiff, but was a
neurologist with specialized knowledge and experience. Nonetheless, the ALJ found
the objective medical evidence did not entirely support Dr. Naseer’s opinion
regarding plaintiff’s postural, manipulative and environmental limitations. As such,
only some weight was given to Dr. Naseer’s opinion. The ALJ fully considered Dr.
Naseer’s opinion, carefully explaining the aspects of Dr. Naseer’s opinion that were
supported by the objective medical evidence as well as the portions of his opinion
that were not supported by any evidence or were inconsistent with existing
evidence. As such, the ALJ properly provided sufficient reasons supported by the
record as to why he assigned less weight to Dr. Naseer’s consultative opinion.
2. Dr. Knipp
In determining plaintiff’s mental RFC, the ALJ gave significant evidentiary
weight to the opinion of consultative psychological examiner Dr. Knipp. (Tr. 27).
The ALJ found that Dr. Knipp’s opinion regarding plaintiff’s mental functional
limitations was consistent with and supported by her objective findings on
examination and other objective medical evidence.
psychological opinion was based both on her own thorough examination of plaintiff
as well as a review of plaintiff’s psychological treatment notes.
Thus, the ALJ noted that Dr. Knipp’s opinion provided a longitudinal perspective of
plaintiff’s limitations and impairments.
Also, because no treating physician or
psychologist provided opinion evidence as to plaintiff’s mental impairments and
resultant functional limitations, Dr. Knipp’s opinion was particularly probative as to
plaintiff’s mental RFC.
However, the ALJ gave little weight to the other aspects of Dr. Knipp’s
opinion. (Tr. 27–28). The ALJ noted that Dr. Knipp is a psychologist and thus not
an acceptable medical source capable of rendering a medical opinion regarding
plaintiff’s physical impairments and limitations.
Also, Dr. Knipp’s report did not
indicate she performed any physical examination or reviewed any of plaintiff’s
medical records beyond plaintiff’s limited mental health treatment notes.
extent that Dr. Knipp believed plaintiff could not maintain consistent employment,
the ALJ presumed this assessment was based on Dr. Knipp’s perception of plaintiff’s
physical limitations since Dr. Knipp’s opinion regarding plaintiff’s mental limitations
did not comport with an inability to maintain employment. The ALJ also noted that
the issue of whether an individual is able or unable to work is an ultimate question
reserved to the Commissioner, not a psychologist. See Ellis v. Barnhart, 392 F.3d
988, 994 (8th Cir. 2005) (“A medical source opinion that an applicant is ‘disabled’
or ‘unable to work,’ however, involves an issue reserved for the Commissioner and
therefore is not the type of ‘medical opinion’ to which the Commissioner gives
Because Dr. Knipp’s opinion as to plaintiff’s physical
limitations was not founded upon any medical expertise or review of plaintiff’s
medical records, the ALJ assigned little weight to this portion of her opinion. The
Court finds that substantial evidence and sufficient reasoning supports the weight
the ALJ gave to Dr. Knipp’s consultative opinion.
3. Nurse Shew
With regard to plaintiff’s mental RFC, the ALJ also gave little weight to the
opinion of psychiatric nurse Shew.
A letter from nurse Shew dated
February 14, 2013 stated that she had been providing psychotherapy twice a week
for plaintiff since July 2012.
Nurse Shew wrote that plaintiff’s
depression had worsened as her back pain increased.
The record otherwise only
contains nurse Shew’s treatment notes from two visits in July 2012. (Tr. 513–16).
The ALJ noted that an opinion from a nurse was not an acceptable medical source
capable of rendering a medical opinion as defined in the Social Security
Administration’s regulations. See 20 C.F.R. §§ 404.1513, 404.1527(a)(2); SSR 063p. Also, based on the limited treatment notes from nurse Shew’s appointments
with plaintiff, it was difficult to ascertain whether nurse Shew’s notes were
consistent with her assessment. The letter from nurse Shew did not articulate any
specific functional limitations arising from plaintiff’s mental impairments.
Accordingly, because nurse Shew’s opinion did not constitute an acceptable
medical source, was not supported by contemporaneous treatment notes, and did
not include any specific mental functional limitations, the ALJ gave her opinion little
weight. See Travis v. Astrue, 477 F.3d 1037, 1041 (8th Cir. 2007) (“If [a medical
source’s] opinion is ‘inconsistent with or contrary to the medical evidence as a
whole, the ALJ can accord it less weight.’”) (quoting Edwards v. Barnhart, 314 F.3d
967, 967 (8th Cir. 2003)). The ALJ’s refusal to rely on the single GAF score cited in
the record, unsupported by treatment notes or specific mental functional limitations
from an acceptable medical source, was not in error. See Halverson v. Astrue, 600
F.3d 922, 931 (8th Cir. 2010) (finding that the ALJ’s decision not to rely on one
GAF score of 40 was supported by substantial evidence in the record); see also id.
(quoting Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 241 (6th Cir. 2002) (“While
a GAF score may be of considerable help to the ALJ in formulating the [residual
functional capacity], it is not essential to the RFC’s accuracy.”).
Court finds that the ALJ properly explained sufficient bases for discounting nurse
C. The RFC Assessment
Finally, plaintiff argues that the ALJ erred in assessing her RFC because he
did not include in the assessment specific limitations based on her spinal infection
and rotator cuff injury. Plaintiff contends that Social Security Ruling 96-8p requires
the ALJ to consider the impact of both severe and non-severe impairments on her
ability to work, which the ALJ failed to do. See SSR 98-8p (“In assessing RFC, the
adjudicator must consider limitations and restrictions imposed by all of an
individual's impairments, even those that are not ‘severe.’
While a ‘not severe’
impairment(s) standing alone may not significantly limit an individual's ability to do
basic work activities, it may—when considered with limitations or restrictions due to
other impairments—be critical to the outcome of a claim.”).
The ALJ found that plaintiff had the RFC to perform sedentary work with the
she can occasionally stoop; cannot kneel, crouch, crawl,
climb ramps, stairs or ropes; can occasionally push or pull with the bilateral upper
extremities; is unable to operate any foot control operations; must avoid
concentrated exposure to extreme vibration; must avoid all operational control of
moving machinery, working at unprotected heights, and use of hazardous
machinery; and is limited to work that involves only simple, routine, and repetitive
tasks in a low-stress job, defined as one requiring only occasional decision-making
and only occasional changes in the work setting. (Tr. 20–21).
In determining plaintiff’s RFC, the ALJ explicitly referred to edematous
changes associated with her spinal infection in 2013. (Tr. 22–23). However, the
ALJ noted that the results of overall diagnostic imaging in the record were mild.
Also, the ALJ considered that plaintiff intermittently was observed to exhibit
decreased range of motion of the lumbar spine. However, plaintiff consistently was
observed to exhibit normal gait and had not been prescribed assistive devices or
advised to abstain from any activities.
The ALJ noted that plaintiff required
continued medications, including narcotic pain medications and muscle relaxants, to
treat her lumbar spine conditions, and these medications caused adverse side
effects. The ALJ attributed limitations on the basis of these side effects, explicitly
limiting plaintiff to performing work that involved only simple, routine and repetitive
tasks in a low-stress job. Finally, the ALJ limited plaintiff overall to performing only
sedentary exertional work based on her lumbar spine conditions. As such, the ALJ
properly considered plaintiff’s non-severe spinal infection as it related to her
functional limitations in the RFC assessment.
As to plaintiff’s non-severe rotator cuff injury, the ALJ also explicitly referred
to this condition in his RFC assessment when considering the credibility of plaintiff’s
statements concerning the intensity, persistence and limiting effects of her
Specifically, the ALJ noted that plaintiff underwent
surgical repair of the rotator cuff injury in June 2012, but the record contained no
additional medical evidence showing further shoulder abnormalities after that time
or ongoing complaints of shoulder pain or associated functional limitations.
Accordingly, the ALJ also properly considered the effect of plaintiff’s non-
severe rotator cuff injury on her ability to work in his RFC assessment.
For the reasons discussed above, the Court finds that the Commissioner’s
decision is supported by substantial evidence in the record as a whole.
IT IS HEREBY ORDERED that the decision of the Commissioner is
A separate Judgment in accordance with this Memorandum and Order will be
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 7th day of March, 2016.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?