Dean v. Colvin
MEMORANDUM: This action is before the court for judicial review of the final decision of the Commissioner of Social Security that plaintiff Dionese Dean is not disabled under Title II or Title XVI of the Social Security Act and is thus not entitled to disability insurance benefits (DIB), 42 U.S.C. §§ 401 et seq., nor supplemental security income (SSI). 42 U.S.C. §§ 1381-1383(f). For the reasons set forth below, the decision of the Commissioner is affirmed. Signed by Magistrate Judge David D. Noce on 3/17/17. (JAB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NANCY A. BERRYHILL1,
Acting Commissioner of Social Security,
Case No. 4:16-CV-43-DDN
This action is before the court for judicial review of the final decision of the
Commissioner of Social Security that plaintiff Dionese Dean is not disabled under Title II
or Title XVI of the Social Security Act and is thus not entitled to disability insurance
benefits (“DIB”), 42 U.S.C. §§ 401 et seq., nor supplemental security income (“SSI”).
42 U.S.C. §§ 1381-1383(f).
For the reasons set forth below, the decision of the
Commissioner is affirmed.
Plaintiff applied for DIB and SSI in August 2012, ultimately alleging a disability
onset date of March 15, 2013. (Tr. 131-43, 167). Her initial claims were denied on
November 1, 2012. (Tr. 71-75). Plaintiff filed a timely written request for a hearing on
November 9, 2012. (Tr. 78). She testified before an administrative law judge (“ALJ”) on
April 22, 2014. (Tr. 24). On August 27, 2014, the ALJ determined plaintiff was not
disabled. (Tr. 9-19).
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to
Federal Rule of Civil Procedure 25(d), Ms. Berryhill is hereby substituted for Carolyn W.
Colvin in her official capacity as the defendant in this action. 42 U.S.C. § 405(g) (last
The ALJ decided that while plaintiff has severe impairments and is unable to
perform her past relevant work (“PRW”), considering her residual functional capacity
(“RFC”), there are jobs in significant numbers in the local and national economies
plaintiff could perform. (Tr. 12-19). Plaintiff filed a timely request for review on
October 1, 2014, which the Appeals Council denied on December 8, 2015. (Tr. 1-7).
The decision of the ALJ therefore stands as the final decision of the Commissioner of
Social Security. Plaintiff filed for judicial review of this decision on January 12, 2016,
arguing that it is not supported by substantial evidence.
Medical Record and VE Information
Plaintiff was born on March 29, 1984. (Tr. 67-68). She first complained of low
back pain at Grace Hill Health Center on August 20, 2012. (Tr. 242). At the time, she
described the back pain as an ache that was aggravated by daily activities, lying and
resting, running, sitting, and standing. (Tr. 242). While plaintiff claimed that the pain
had been worsening the past three months, the pain was relieved by constant movement.
(Tr. 242). She weighed 174 lbs. at the time with a body mass index (“BMI”) of 28.95.
(Id.). Nurse Practitioner Brook Strickland prescribed Flexeril for plaintiff’s back muscle
spasms and Naprosyn for her pain and inflammation. (Tr. 243). Ms. Strickland ordered
an x-ray of plaintiff’s back, which showed a mild curvature of the lumbar spine. (Tr.
243, 408). Plaintiff was diagnosed with lumbago with sciatica. (Tr. 408).
On September 13, 2012, plaintiff sought treatment at Grace Hill for lower back
pain. (Tr. 290). She was referred for a CT scan with contrast of her lumbar spine. (Tr.
On November 15, 2012, Ms. Strickland of Grace Hill again saw plaintiff for low
back pain, gastroesophageal reflux disease (“GERD”), allergies, and dyspnea. (Tr. 294).
Plaintiff was again diagnosed with lumbago with sciatica, for which she was still waiting
for a CT scan. (Tr. 294-96). Plaintiff was instructed to continue taking Gabapentin,
which she reported as relieving her symptoms; Naproxen; and an increased dosage of
Flexeril. (Tr. 294-96). She reported that the pain was an ache and throbbing feeling and
was aggravated by sitting and standing. (Tr. 294). For GERD, plaintiff was instructed to
take Ranitidine, and for the allergies Claritin. (Tr. 296). Lastly, plaintiff’s Advair
prescription was decreased, but she was instructed to continue using it daily and to start
Albuterol as a rescue inhaler. (Id.). At the time of this visit, plaintiff weighed 209 lbs.
and had a BMI of 34.78. (Tr. 295).
On February 5, 2013, plaintiff returned to Grace Hill for back pain, GERD,
asthma, allergies, tachycardia, and hypertension. (Tr. 303-05). Plaintiff was instructed to
continue the same medications for the GERD and lumbago with sciatica. For plaintiff’s
asthma, she was instructed to continue to use Advair and use the Albuterol inhaler once a
day. (Tr. 305). Ms. Strickland referred plaintiff to an ears, nose, and throat doctor, as the
Claritin was not helping plaintiff with her allergies.
Plaintiff was prescribed
hydrochlorothiazide (“HCTZ”) for the swelling of her feet and legs (edema) and
Metoprolol for her tachycardia. (Id.). At the time of this visit, plaintiff weighed 231.4
lbs. and had a BMI of 38.50. (Tr. 304). Ms. Strickland set a goal for plaintiff to abide
by the DASH diet.2 (Tr. 302).
On February 7, 2013, plaintiff visited an orthopedic doctor on referral from Ms.
Strickland. (Tr. 309). The orthopedic doctor reported both that plaintiff had noticed
“significant improvement in pain with Gabapentin” while also claiming that she had
experienced “worsening pain over last 6 months.” (Tr. 310). Plaintiff was again seen at
Grace Hill on February 20, 2013, for hypertension, tachycardia, lumbago with sciatica,
and a vitamin D deficiency. (Tr. 314). Ms. Strickland prescribed the same treatments,
except she increased the Gabapentin and educated plaintiff on her vitamin D deficiency.
(Tr. 310). At this time Ms. Strickland specifically noted plaintiff showed no evidence of
depression. (Tr. 317).
On April 3, 2013, Joseph Williams, M.D., of St. Louis Connect Care
recommended plaintiff take Cymbalta for a month or two and return for a follow-up. (Tr.
DASH (acronym for Dietary Approaches to Stop Hypertension) diet is a program of
healthful eating. http://www.webmd.com/hypertension-high-blood-pressure/guide/dashdiet#1 (last viewed on March 15, 2017).
404-05). Additionally, he noted there were no obvious abnormalities in her back visible
in an x-ray, but he recommended she obtain copies of her MRI and CAT scans. (Tr.
On April 10, 2013, plaintiff was seen at Grace Hill by Vani Pachalla, M.D., for
hypertension, edema, and back pain.
Plaintiff’s instructions were to
continue her medications as prescribed, increase her activity level, and continue with the
DASH diet as a goal. (Tr. 319).
On April 24, 2013, plaintiff was seen at St. Louis Connect Care, where she had a
follow-up to review the MRI of her back. At the time, her BMI was 45.4, which Dr.
Williams noted met the Federal Government Standards for morbid obesity. (Tr. 407).
Dr. Williams opined that “there is nothing on her MRI or [her] physical examination that
would account for her back pain.” (Tr. 407). In order for plaintiff to relieve her back
pain, Dr. Williams “recommended a diet and exercise and doing a job where she does
something 8 hours a day instead of sitting around and eating.” (Tr. 407).
On May 13, 2013, plaintiff went to Missouri Baptist Medical Center with
complaints of a rapid heartbeat and chest pain. (Tr. 270). She rated her pain as 7/10 but
was observed giggling and joking with her husband and the nurse while being examined.
(Tr. 280-81). Tests administered that day did not reveal an official diagnosis, but it was
noted that plaintiff had tachycardia unspecific and chest pain atypical. (Tr. 279).
On May 20, 2013, at a follow-up with Grace Hill, plaintiff was referred to both a
cardiologist and a nutrition counselor by Nurse Practitioner Judith Gallagher, with
tachycardia and weight gain listed as assessments. (Tr. 324-26). At this visit, plaintiff
weighed 249 lbs. and her BMI was 41.53. (Tr. 327).
On August 28, 2013, at a follow-up at Grace Hill, plaintiff again complained of
hypertension, allergies, asthma, GERD and back pain. (Tr. 333). David Richards, M.D.,
did not change any medication. (Tr. 334-35). Plaintiff weighed 260.80 and had a BMI of
43.39. (Tr. 334). On September 12, 2013, Dr. Richards restricted plaintiff’s permitted
activity to walking or standing only occasionally and to alternating between sitting and
standing due to the increase in edema in her legs. (Tr. 345). Specifically, Dr. Richards
noted plaintiff “should not stand for long periods of time” and “may require frequent sit
down periods due to increase[d] edema in legs.” (Tr. 346).
On October 17, 2013, plaintiff was referred to Washington University in St. Louis’
Multidisciplinary Sleep Medicine Center for a sleep study, due to her snoring and
Plaintiff was evaluated and the suggested potential
treatments for both restless leg syndrome and obstructive sleep apnea were “positive
airway pressure, oral prosthesis, surgery, Provent adhesive nasal valves, and weight loss.”
(Tr. 398). Additionally, it was noted that the insomnia was psychophysiological, “likely
triggered by prior shift work and caregiver role in her mother’s recent illness.” (Tr. 398).
On December 2, 2013, plaintiff returned to Grace Hill with severe back pain. (Tr.
350-51). Plaintiff then weighed 263.4 lbs. and had a BMI of 43.83. (Tr. 362). On
December 31, 2013, Dr. Richards saw plaintiff at Grace Hill for a follow-up on her
severe back pain. (Tr. 368). Dr. Richards kept all of plaintiff’s medication the same,
including the goal of the DASH diet, but also added the goal of losing 75 lbs. by the
upcoming summer. (Tr. 368-71). At this appointment, plaintiff weighed 268.8 lbs. and
had a BMI of 44.69. (Tr. 370).
On January 7, 2014, plaintiff was seen for a comprehensive eye exam after
complaining of gradually worsening blurry vision in both eyes. (Tr. 377). Plaintiff was
given a new eye glasses prescription as well as instructed to take out her contacts nightly
to clean them instead of wearing them when she slept, as this was likely the cause of her
corneal scars that seemed to cause her blurry vision. (Tr. 381).
On January 8, 2014, plaintiff was seen at Washington University in St. Louis
School of Medicine’s Cardiovascular Division. (Tr. 399). Plaintiff was diagnosed with
morbid obesity, hypertension, asthma, possible obstructive sleep apnea, physical
deconditioning, probable diastolic congestive heart failure, and atypical chest pain. (Tr.
399). Plaintiff was advised to exercise lightly daily and to lose weight. (Tr. 400, 403).
At this time, plaintiff weighed 264 lbs. (Tr. 400).
On July 20, 2014, VE Robin A. Cook, Ph.D., CRC submitted written answers to a
In this document the ALJ described this
7. Assume a hypothetical individual who was born on March 29, 1984, has
at least a high school education and is able to communicate in English as
defined in 20 CFR 404.1564 and 416.964, and has work experience as
described in your response to Question #6 [,which listed four jobs].
Assume further that this individual has the residual functional capacity
(RFC) to perform sedentary work as defined in 20 CFR 404.1567(c) and
416.967(c) except she can sit for approximately 15 minutes at a time before
standing briefly to reposition before sitting back down. She would be able
to remain on task while repositioning.
Cook stated that a hypothetical individual with plaintiff’s age, education, experience, and
RFC would not be able to perform plaintiff’s previous relevant work. (Tr. 224-25).
When asked if there are jobs in the national economy this hypothetical individual could
perform, the VE replied “yes” and listed these jobs as Final Assembler, Semiconductor
Bonder, and Taper. (Tr. 225).
On April 22, 2014, plaintiff appeared and testified before an ALJ. (Tr. 24-54).
Plaintiff testified that her current weight was 253 lbs. but her normal weight was 150 lbs.,
and she was unsure why she had gained such a significant amount of weight. (Tr. 30).
She stopped working as a home healthcare assistant in March 2013 because her
assistance was no longer needed. (Tr. 31). Previously, plaintiff had worked as a front
desk agent, pool attendant, beer vendor, runner at the ballpark, bra salesperson, and a sign
team member at a department store. (Tr. 31-33). Plaintiff testified she is unable to work
now because she “can’t stand or sit for a long period of time” due to severe swelling in
her lower extremities. (Tr. 33). She is unable to sit for more than 15 minutes at a time
This is the RFC the ALJ ultimately found for plaintiff. (Tr. 15).
because her “legs begin to go numb;” so, she has “to wiggle [her] legs often so they don’t
hurt.” (Tr. 33).
Plaintiff testified she was seeing doctors for primary care, cardiology, sleep
problems, and allergies. (Tr. 33-34). She additionally testified that due to the “weather
changing,” she had been using her albuterol inhaler “almost once a day”, but it “help[ed]
[her] catch [her] breath so [she] can breathe regularly.” (Tr. 43). The albuterol inhaler
causes shakiness as a side effect, which typically takes about five to ten minutes to go
away. (Tr. 43).
Plaintiff testified that on a typical day her girlfriend helps her out of bed because
she has trouble doing so herself. (Tr. 44). Plaintiff is able to maintain a normal morning
hygienic routine before helping her son with breakfast. (Tr. 44). She then does as much
cleaning as she can on her own, such as “making the bed, vacuum[ing] the floor, [and]
sweeping the floor”, but “once that becomes too extreme, [she has] to sit down and take a
rest.” (Tr. 44).
Plaintiff takes her medication three times a day. (Tr. 44). When she experiences
pain throughout the day, she “[tries her] best to grin and bear it.” (Tr. 44). In order to
best circulate the fluids in her legs that lead to edema, plaintiff tries to keep her legs
elevated for fifteen minutes and then stand up for fifteen minutes. (Tr. 46). However,
even doing this throughout the day only has some effect on minimizing the swelling of
her lower extremities and at times her feet swell to the point that she is unable to put on
shoes. (Tr. 45, 47). At night, she does her best to keep her legs elevated by putting a
pillow under them, but doing so at times causes pain in her lower back. (Tr. 45-46). Due
to a combination of her insomnia, body aches, and restless leg syndrome, plaintiff
typically sleeps from approximately 3:00 a.m. to 8:00 a.m. (Tr. 48).
Additionally, while plaintiff considers herself “a fairly independent person,” she
becomes “very, very depressed” when she can’t do things for herself or her son. (Tr. 48).
When she takes her depression medication regularly, it relieves her depressive symptoms,
except for occasional crying spells.
Plaintiff also testified she takes
Cymbalta for back pain, but it does not relieve that pain. (Tr. 49). There are days due to
her back pain that she does not “have the will to get up because [her] back just hurts that
bad.” (Tr. 51).
Plaintiff testified her appetite is inconsistent, but she is not sure why that is the
case. (Tr. 50). She claims she “kind of like stopped eating” due to the doctors advising
her to lose weight and while the doctors “think [she] just sit[s] around and eat[s] all day,”
“that’s not the case.” (Tr. 50). She eats “at least once or twice a day” but then at times
“purposefully dehydrates” herself to reduce her extremities’ swelling and thus her
discomfort. (Tr. 50-51).
There are a few side effects to her medications, including drowsiness, avoiding
direct sunlight, and taking her medication with food to avoid an upset stomach. (Tr. 51).
On August 27, 2014, the ALJ issued a decision that plaintiff was not disabled
under the Act. (Tr. 9-19). The ALJ found that plaintiff met the DIB insured status
through December 31, 2017. (Tr. 14). At Step One, she found that plaintiff has not
engaged in any substantial gainful activity (“SGA”) since the alleged onset date of March
15, 2013. (Tr. 14). At Step Two, the ALJ found that plaintiff suffers from the following
severe impairments: asthma, arthritis, diastolic congestive heart failure, and morbid
At Step Three, the ALJ found that plaintiff does not have an
impairment or a combination of impairments that meet or medically equal the severity of
one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 15).
The ALJ determined the following impairments plaintiff alleged to suffer were
nonsevere because they are controlled with medication: hypertension, GERD, and
allergic rhinitis. (Tr. 14). The ALJ determined the other impairments plaintiff alleged to
suffer from, including obstructive sleep apnea and depression, are not medically
determinable impairments for plaintiff because she has not had a sleep test, which is
required to diagnose obstructive sleep apnea, and because a state agency consultant
determined that plaintiff does not have a medically determinable mental impairment. (Tr.
At Step Four, the ALJ determined plaintiff has the RFC to perform sedentary work
as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a).
An exception to that
determination is that plaintiff can sit for only approximately 15 minutes at a time before
standing briefly to reposition herself before sitting back down, but she can remain on task
while doing so. (Tr. 15). Using this RFC and VE information, the ALJ found at Step
Five that while plaintiff is unable to perform any of her PRW, there are jobs that exist in
significant numbers in the local and national economies that she can perform. (Tr. 18).
Therefore, the ALJ concluded that plaintiff is not disabled. (Tr. 18-19).
In coming to this conclusion, the ALJ determined that while plaintiff’s medically
determinable impairments could reasonably be expected to cause the alleged symptoms,
plaintiff’s statements about the intensity, persistence, or functionally limiting effects of
pain or other symptoms were not substantiated by objective medical evidence. (Tr. 16).
Thus, the ALJ had to make a finding regarding the credibility of plaintiff’s statements
based on the entire record. SSR 96-7P.5 Plaintiff claimed she was unable to work due to
a history of osteoarthritis in her lumbar spine, morbid obesity, and edema that hinders her
ability to sit and stand for extended periods of time, which would prevent her from
sustaining a job that required her to work forty hours per week. (Tr. 16).
While this SSR was rescinded by SSR 16-3p on March 16, 2016, it was still in force at
the time of the ALJ’s decision in August 2014. The superseding 2016 ruling rejects the
use of the term “credibility,” because “subjective symptom evaluation is not an
examination of an individual’s character.” SSR 16-3p. However, in terms of the
evaluation of symptoms, both rulings direct ALJs to consider all evidence in the record,
and both incorporate the factors to be considered under regulations 20 C.F.R. §§
404.1529(c)(3) and 416.929(c)(3). As applied to this case, the rescission of SSR 96-7p
would not appear to have any practical effect on the outcome. Under either ruling, an
ALJ must point to specific reasons for the weight given to a plaintiff’s subjective
complaints. Many courts have chosen to apply this ruling retroactively because it
clarifies rather than changes the administrative interpretation of the rules. See, e.g.,
Mendenhall v. Colvin, 2016 WL 4250214, at *3 (C.D. Ill. Aug. 10, 2016); Vonderau v.
Colvin, 2016 WL 4435620, at *5, n. 2 (N.D. Ind. Aug. 23, 2016). However, because SSR
16-3p does not alter the rule that the ALJ must provide specific reasons for the weight
accorded a plaintiff’s subjective complaints, this court need not reach the issue of
whether it applies retroactively.
Regarding plaintiff’s back pain, the ALJ noted that, while plaintiff told her
orthopedist, Dr. Williams, she had mild pain throughout her life and was diagnosed with
lumbago with sciatica, on examination Dr. Williams found plaintiff had “full forward
flexion, full extension, and full lateral bending…no tenderness to palpation and no
muscle spasm . . . [and a] negative straight leg raising test.” (Tr. 16, 404-08). The ALJ
noted Dr. Williams’ conclusion that plaintiff had “back pain with no objective
abnormalities” and that in the doctor’s opinion “there was nothing on the MRI or on her
examination that would account for [plaintiff’s] back pain.” (Tr. 16, 404, 407). The ALJ
observed Dr. Williams recommended that plaintiff “diet and exercise ‘and do a job
where she does something 8 hours a day instead of sitting around and eating.’” (Tr. 16,
Concerning plaintiff’s heart problems, the ALJ noted that, when plaintiff went to
the emergency room in May 2013 because of complaints of frequent palpitations and
intermittent chest pain, plaintiff “rated her pain as 7/10 but was observed giggling and
joking with her husband and the nurse while being examined.” (Tr. 16-17, 280-81).
Plaintiff was discharged because there was no diagnosis after many tests, but she was
referred to a cardiologist. (Tr. 17, 279). The ALJ noted that the cardiologist, Dr. Amin,
“treated her as if she had diastolic congestive heart failure, without specifically
diagnosing that condition” at an appointment in January 2014. (Tr. 17, 399-403). Tests
demonstrated plaintiff had normal valves, diastolic function, and chamber sizes. (Tr. 17,
427-31). An echocardiogram was normal. (Tr. 17, 429). The ALJ also noted that
plaintiff’s atypical chest pain had improved and been resolved. (Tr. 17, 427-28). The
ALJ took note of the multiple factors that Dr. Amin recognized would cause plaintiff’s
shortness of breath, including asthma, possible obstructive sleep apnea, restrictive lung
disease, and that she was “physically deconditioned and morbidly obese.” (Tr. 17, 428).
The ALJ pointed to evidence in the record that both plaintiff’s blood pressure and
hypertension “were well controlled.” (Tr. 17, 428).
The ALJ noted that plaintiff’s asthma problems are being treated by her primary
care physician, Dr. Richards, who prescribed multiple medications, including inhalers.
Plaintiff’s symptoms, such as shortness of breath, are generally well-controlled with her
medications. (Tr. 17, 43, 335). While she still experiences occasional wheezing, her
asthma and allergies have not led to her being hospitalized. Id.
After noting the above findings, the ALJ found that plaintiff “has not made a very
persuasive case that she is unable to engage in competitive employment.” (Tr. 17).
While the ALJ recognized plaintiff’s multiple impairments, she found that plaintiff
“seem[ed] to exaggerate her symptoms.” (Tr. 17). The ALJ found that the objective
medical evidence demonstrated that plaintiff’s back impairment was mild and that
plaintiff’s asthma was well-controlled with her medications. (Tr. 17, 43, 335). Another
inconsistency noted by the ALJ was that the objective testing plaintiff had undergone
demonstrated her doctor was treating her for a heart condition that she did not have. (Tr.
Importantly, the ALJ noted that plaintiff’s “shortness of breath appears to be
caused by a combination of these conditions and her weight,” and “her doctors have
advised her to lose weight and get more exercise to improve her health.” (Tr. 17, 319,
368, 400, 403, 407). The ALJ recognized that at least part of plaintiff’s inability to do
certain work activities, such as climbing stairs, walking, and remaining seated, is from
her morbid obesity, and the ALJ could not say “that she has been compliant with her
physician’s recommendation since the alleged onset date.” (Tr. 17). The ALJ therefore
concluded that plaintiff’s testimony about her limitations was not entirely credible,
specifically noting that one doctor “has gone so far as to say that she can work, and
should work, instead of just sit around.” (Tr. 17, 407).
Therefore, when determining plaintiff’s RFC, the ALJ gave great weight to the
treating source opinion of Dr. Richards, who recommended “that [plaintiff] needs to
perform sedentary work, with only occasional/lifting and carrying of 10 pounds
maximum and with a sit/stand option.” (Tr. 17, 345-46). Additionally, the ALJ gave
some weight to Dr. Amin’s opinion that plaintiff “is capable of engaging in work
activities.” (Tr. 17).6
The ALJ then considered written, unsworn answers from a VE to determine
whether there were jobs in the local and national economy that plaintiff could perform,
even though she was unable to perform any of her PRW. (Tr. 18). According to the VE,
there were at least three unskilled occupations in the national economy at the sedentary
exertional level that plaintiff could perform: final assembler; optical semiconductor
bonder; and taper. (Tr. 19, 224-25).
Ultimately, the ALJ determined that plaintiff was not disabled under the Act. (Tr.
Plaintiff argues that the ALJ’s decision was not supported by substantial evidence.
Specifically she argues: (1) the RFC finding is not supported by, but is inconsistent with,
the medical evidence; (2) the ALJ inadequately considered plaintiff’s morbid obesity; (3)
her morbid obesity is equivalent to a medically listed impairment; and (3) the
Dr. Amin’s report indicated that while plaintiff is morbidly obese and physically
deconditioned due to her morbid obesity, he advised her to exercise lightly daily. (Tr.
427-28). Dr. Amin’s report did not state that plaintiff is capable of engaging in work
activities, as suggested by the ALJ’s decision, but the ALJ’s determination of plaintiff’s
RFC, with “some weight” given to Dr. Amin’s report, is not inconsistent with Dr. Amin’s
advice to exercise lightly daily as opposed to plaintiff being able to perform work
activities. (Tr. 17). In an analogous Eighth Circuit opinion, an ALJ misread the word
“walk” to be “work,” but the court found the error was harmless because “there was no
indication that the ALJ would have decided differently had he read the hand-written
note” accurately. Van Vickle v. Astrue, 539 F.3d 825, 830 (8th Cir. 2008); see also
Renfrow v. Astrue, 496 F.3d 918, 921 (8th Cir. 2007). Similarly, Dr. Amin’s
recommendation to exercise lightly daily is consistent with the ALJ’s final RFC
determination, regardless of the ALJ’s error in reading Dr. Amin’s report, as the ALJ
determined plaintiff had “the RFC to perform sedentary work… except that she can sit
for approximately 15 minutes at a time before standing briefly.” (Tr. 15). Therefore, the
error is harmless.
hypothetical question posed to the vocational expert did not adequately capture the
concrete consequences of plaintiff’s impairments.
Standard of Review and Statutory Framework
Under 42 U.S.C. § 405(g), an individual may obtain judicial review of the final
decision of the Commissioner of Social Security. When reviewing this decision, the
court must uphold the final decision of the Commissioner “if it is supported by
substantial evidence on the record as a whole.” Locker v. Sullivan, 968 F.2d 725, 727
(8th Cir. 1992). The decision cannot be reversed “merely because substantial evidence
would have supported an opposite decision.” Baker v. Heckler, 730 F. 2d 1147, 1150
(8th Cir. 1984).
A person is disabled under the Social Security Act if she is unable “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 12 months.” 42 U.S.C. §
In order to determine whether a plaintiff is disabled under the Act, the
Commissioner has established a five-step sequential evaluation. 20 C.F.R. § 404.1520.
At Step One, the Commissioner must determine if the plaintiff is participating in SGA,
and, if she is, benefits are denied.
If the plaintiff is not engaging in SGA, the
Commissioner must in Step Two determine whether she has a medically determinable
impairment or combination thereof that is “severe.” 20 C.F.R. § 404.1520(c). If an
impairment or combination thereof does not significantly limit a plaintiff’s physical or
mental ability to do basic work activities, the impairment or combination thereof is
considered not severe.
20 C.F.R. § 404.1521(a).
In this case, the Commissioner
determined that plaintiff suffers from four severe impairments. Moving to Step Three,
the Commissioner determines if the severe impairment or combination thereof meets or is
medically equivalent to the criteria of a listed impairment in C.F.R. Part 404, Subpart P,
Appendix 1. If plaintiff’s impairments or combination thereof meet or are medically
equivalent to a listed impairment, the plaintiff is determined to be disabled. If not, the
Commissioner moves on to Step Four. In this case, the Commissioner answered the Step
Three issue in the negative.
At Step Four, in order to determine if the plaintiff can do her PRW, the
Commissioner must determine her RFC. 20 C.F.R. §§ 404.1520(e), 416.920(e). When
determining RFC, the Commissioner must consider all relevant medical and other
evidence, including medical reports, examinations, and descriptions and observations of
the limitations by both the plaintiff and others such as family or friends. 20 C.F.R. §
404.1545(a)(3). Once the Commissioner has determined plaintiff’s RFC, she must use
that to determine if the plaintiff is able to perform PRW. If the plaintiff cannot return to
her PRW then the Commissioner moves on to Step Five. In this case, the Commissioner
determined that plaintiff cannot perform her PRW.
Thus, the burden shifted to the Commissioner at Step Five to establish that
regardless of the plaintiff’s impairments, she has the RFC to perform SGA in the national
economy that is consistent with her other vocational factors, such as age, education and
work experience. Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010) (citing Pate-Fires v.
Astrue, 564 F.3d 935, 942 (8th Cir. 2009). If the Commissioner correctly meets that
burden, then the plaintiff is not disabled. 42 U.S.C. § 423(d)(2)(A). That is the cardinal
issue now before the court.
Plaintiff first argues that the RFC finding that she could stand and sit
intermittently for 15 minutes without losing focus was not supported by any medical
evidence. (ECF No. 16 at 10). When determining a plaintiff’s RFC, the Commissioner
must consider all of the plaintiff’s mental and physical impairments. Lauer v. Apfel, 245
F.3d 700, 703 (8th Cir. 2001). While the Commissioner makes the RFC determination
based on all of the relevant evidence, “the record must include some medical evidence
that supports the ALJ’s residual functional capacity finding.” Dykes v. Apfel, 223 F.3d
865, 867 (8th Cir. 2000).
Plaintiff had the burden of demonstrating she would not have been able to stay on
task while repositioning herself. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir.
2001). Nowhere in the initial claim for disability benefits or in the medical record is
there any evidence or allegation that plaintiff suffered from attention problems. In her
decision, the ALJ noted that she “considered all symptoms and the extent to which these
symptoms can reasonably be accepted as consistent with the objective medical evidence
and other evidence . . . [and] also considered opinion evidence.” (Tr. 15-17). Plaintiff
did not testify that she had problems with attention at the hearing. (Tr. 26-53).
Additionally, plaintiff did not complain of attention difficulties at any of her
medical appointments. (Tr. 258-59, 261, 280, 305, 317, 334, 371, 378, 397, 400, 428).
Several physicians examined and reported on plaintiff’s psychiatric health, and besides a
few notations of depressive symptoms, those reports indicated normal affect, mood, and
behavior. (Tr. 258-59, 261, 280, 305, 317, 334, 371, 378, 397, 400, 428). The ALJ is
entitled to consider the lack of pertinent psychological symptoms noted by physicians
when determining plaintiff’s RFC when considered as part of the medical record as a
whole. Frank v. Colvin, 129 F. Supp. 3d 794, 808-12 (E.D. Mo. 2015) (recounting the
medical record that did not support disability indicated by mental impairments).
Similarly, “an absence of evidence of ongoing counseling or psychiatric treatment or
deterioration or change in claimant’s mental capabilities disfavors a finding of disability.”
Id. at 808-09. Plaintiff did not report difficulty with or receiving treatment for any
attention problems and, thus, the ALJ lawfully included an ability to concentrate in the
In addition to the medical evidence from plaintiff’s physicians, the ALJ relied on
the opinion of a State agency consultant. (Tr. 15, 65). This consultant determined that
the claimant does not suffer from any medically determinable mental impairment. (Tr.
15, 65). The ALJ was entitled to rely on the State agency consultant’s opinion. 20
C.F.R. §§ 404.1527(f)(2)(i), 416.927(f)(2)(i); Colvin, 129 F. Supp. 3d at 809. Therefore,
the lack of findings of attention difficulties when psychological symptoms were
examined by several physicians, as well as the opinion of the State agency consultant,
constitute substantial evidence for the ALJ’s RFC determination that plaintiff would be
able to “remain on task while repositioning” during her sit/stand intervals. (Tr. 15).
Plaintiff also argues that the ALJ improperly discredited her subjective statements,
because “a treating source’s statement that an individual ‘should’ lose weight or has
‘been advised’ to get more exercise is not prescribed treatment.” SSR 02-1P. Plaintiff
argues that, even if the recommendations of the doctors were considered prescribed
treatment, the Commissioner “will rarely use ‘failure to follow prescribed treatment’ for
obesity to deny or cease benefits.” Id. This is true, because the causes of obesity and
how to effectively treat it are not well known, and thus it is difficult to say that the
prescribed treatment of losing weight “is clearly expected to restore the ability to engage
in substantial gainful activity.” Id. However, plaintiff’s inability to lose weight was not
the only reason the ALJ discredited her subjective statements regarding the intensity,
persistence, and limiting effects of her symptoms. (Tr. 15-17).
Any questions regarding the credibility of a plaintiff’s statements are “primarily
for the ALJ to decide, not the courts.” See Baldwin v. Barnhart, 349 F.3d 549, 558 (8th
Cir. 2003). Where the “individual’s statements about pain or other symptoms are not
substantiated by the objective medical evidence, the adjudicator must consider all of the
evidence in the case record.” SSR 96-7P. Here, the ALJ noted many occasions where
plaintiff’s statements regarding her symptoms were not substantiated by the objective
medical evidence. (Tr. 16-18). The ALJ noted that plaintiff saw a doctor in August 2012
complaining of back pain, but when she was seen by an orthopedist in April 2013 the
orthopedist noted there were “no objective abnormalities” associated with plaintiff’s back
pain. (Tr. 16, 404). “In his opinion, there was nothing on the MRI or on her examination
that would account for the claimant’s back pain.” (Tr. 16, 407).
Additionally, plaintiff’s subjective statements regarding her other impairments are
not substantiated by objective medical evidence. Plaintiff was sent to the emergency
room on May 13, 2013, but her tests showed no objective medical diagnosis for her
complaints of frequent palpitations and intermittent chest pain. (Tr. 16, 279). At followup appointments for her heart problems, her doctor treated her as if she had diastolic
congestive heart failure “without specifically diagnosing that condition.” (Tr. 17, 399403) (on March 6, 2013, her cardiovascular system was considered normal). Her tests
came back normal and plaintiff’s palpitations and atypical chest pain had been resolved.
(Tr. 17, 399-403, 427-28). The ALJ also noted that plaintiff’s breathing problems were
relieved by medications. (Tr. 17, 43, 335).
While the ALJ noted the above examples of the objective medical evidence not
supporting plaintiff’s subjective complaints, “allegations concerning the intensity and
persistence of pain and other symptoms may not be disregarded solely because they are
not substantiated by objective medical evidence.” SSR 96-7P. However, the ALJ did not
just rely on the inconsistency of plaintiff’s subjective allegations and the objective
medical evidence. The ALJ specifically noted that several doctors stated plaintiff was not
only capable of working, but should in fact engage in such activities to improve her
health. (Tr. 17, 319, 345, 398, 400, 407, 428).
The ALJ is permitted to consider “statements and reports . . . from treating or
examining physicians . . . concerning the individual’s symptoms and how the symptoms
affect the individual’s ability to work.” SSR 96-7P. Additionally, the ALJ noted that
several of plaintiff’s physicians advised her to get more exercise and not just sit around,
suggesting that plaintiff not only is capable of the kinds of work recommended by the
physicians and the VE but in fact should be more active in order to improve her health.
(Tr. 17, 319, 345, 398, 400, 407, 428).
The ALJ is also permitted to analyze the consistency of plaintiff’s statements
regarding her pain and symptoms by comparing those statements with “other information
in the case record, including reports and observations by other persons.” SSR 96-7P. For
example, when plaintiff was sent to the emergency room on May 13, 2013, the ALJ noted
“she rated her pain as 7/10 but was observed giggling and joking with her husband and
the nurse while being examined.”
(Tr. 16-17, 280-81).
Thus, the ALJ properly
recognized the inconsistency between plaintiff’s statements and others’ observations in
her credibility analysis.
Importantly, the ALJ is not required to consider all of the credibility factors when
making credibility determinations. Samons v. Astrue, 497 F.3d 813, 820 (8th Cir. 2007).
Among the Polaski factors to be considered are any functional restrictions given to
plaintiff. Id. Plaintiff’s treating physicians and other physicians listed her functional
restrictions as sitting and standing while working and did not restrict her from working.
This is substantial evidence, in addition to the inconsistency of plaintiff’s statements and
the objective medical evidence, to discredit plaintiff’s statements. (Tr. 15-17, 345-46,
Therefore, the ALJ lawfully discredited plaintiff’s subjective statements regarding
the intensity, persistence and limiting effects of her impairments or combination thereof
while including the limitations she found credible in her RFC determination. (Tr. 15-19).
Plaintiff argues her morbid obesity is equivalent to a listed medical impairment.
(ECF No. 16 at 13). The Commissioner can find that obesity, in combination with other
impairments, may be sufficient to equal a medical listing.
Commissioner “may also find that obesity, by itself, is medically equivalent to a listed
However, the Commissioner “will not make
assumptions about the severity or functional effects of obesity combined with other
impairments,” but “will evaluate each case based on the information in the case record.”
Plaintiff does not cite specific evidence that obesity alone or in combination with
her other impairments is medically equivalent to a listing.
Rather, plaintiff lists
circumstances in which the Commissioner could find obesity medically equivalent to a
listing, such as when obesity causes a plaintiff to be unable to walk effectively or, when
in combination with obesity, other impairments of the respiratory or cardiovascular
systems are so severe they are medically equal to a medical listing. In this case, plaintiff
is able to walk effectively. (Tr. 44-45). Additionally, while she is “deconditioned” by
obesity, the effect of her obesity on her other impairments does not make them severe
enough to meet a medical listing. (Tr. 428). Several physicians have found, with
knowledge of her obesity, asthma, and heart problems, that plaintiff not only can increase
activity levels but should do so. (Tr. 17, 319, 368, 400, 403, 407). Substantial evidence
supports the ALJ’s decision that plaintiff’s obesity was not medically equivalent to a
VE Opinion information
Lastly, plaintiff argues the hypothetical situation presented to the VE did not
capture the concrete consequences of her impairments. (ECF No. 16 at 16). In order for
a hypothetical question to serve as substantial evidence, the question must entirely
describe the plaintiff’s individual impairments. Lacroix v. Barnhart, 465 F.3d 881, 889
(8th Cir. 2006) (“Testimony based on hypothetical questions that do not encompass all
relevant impairments cannot constitute substantial evidence to support the ALJ’s
decision”). However, the hypothetical question presented to the VE need not use specific
diagnostic terms. Howard v. Massanari, 255 F.3d 577, 581-82 (8th Cir. 2001). The ALJ
is only required to include in the hypothetical question those impairments and restrictions
she found credible, and she can exclude complaints of pain when those complaints are
determined not to be credible. Guilliams v. Barnhart, 393 F.3d 798, 804 (8th Cir. 2005).
Here, the ALJ did not include the word “obesity” or lay out the symptoms thereof
in the hypothetical questions. However, the ALJ included in the hypothetical questioning
the concrete consequences of plaintiff’s impairments she ultimately determined for
(Tr. 224); Wright v. Colvin, No. 13-3224-CV-S-ODS, 2014 WL
3361817, at *3 (W.D. Mo. July 9, 2014) (unpublished). The ALJ asked if such a person
could “perform any unskilled occupations with jobs that exist in the national economy.”
(Tr. 225). To that the VE responded in the affirmative, and listed three different jobs the
hypothetical person could perform. (Id.).
Even without an explicit inclusion of plaintiff’s obesity in the RFC in a
hypothetical posed to a VE, the Eighth Circuit has determined there is no error when
“[n]othing in [the claimant’s] medical records indicates that a physician ever placed
physical limitations on [her] ability to perform work-related functions because of her
obesity.” McNamara v. Astrue, 590 F.3d 607, 611 (8th Cir. 2010).7 See also Forte v.
Barnhart, 377 F.3d 892, 896 (8th Cir. 2004) (holding that even when physicians have
recognized a claimant is obese and urged him to lose weight, there was no error in
omitting obesity in a hypothetical question when those physicians did not impose “any
additional work-related limitations” because of the obesity, and when the plaintiff himself
“did not testify that that his obesity imposed any additional restrictions”). The Eighth
Circuit has also noted the significance of a claimant's doctors diagnosing and attempting
to treat claimant’s obesity while still believing claimant could perform light work as
strong support for the omission of obesity in hypothetical questions. Forte, 377 F.3d at
Here, as in McNamara and Forte, plaintiff’s physicians recognized her obesity and
recommended she lose weight, but still recommended she become more active and
A contrary Eighth Circuit case is inapposite here. In Morrison v. Apfel, the Eighth
Circuit found error when an ALJ failed to include the fact that the claimant was obese in
the hypothetical questions to the VE, because the plaintiff was only 16 pounds away from
meeting the listing requirement. 146 F.3d 625, 628–29 (8th Cir. 1998). However, this
case was decided when obesity itself was a listing with enumerated requirements (such as
the weight limit factoring into the court’s analysis in Morrison). The Social Security
Administration removed obesity as a listing in 1999, because “our experience
adjudicating cases under this listing indicated that the criteria in the listing were not
appropriate indicators of listing-level severity. In our experience, the criteria in [that
listing] did not represent a degree of functional limitation that would prevent an
individual from engaging in any gainful activity.” SSR 02-1p (citing Revised Medical
Criteria for Determination of Disability, Endocrine System and Related Criteria, 64 Fed.
Reg. 46122 (Aug. 24, 1999)). The Eighth Circuit’s present case law is concerned with
whether the ALJ has addressed medical evidence that a claimant’s obesity causes workrelated limitations. See McNamara, 590 F.3d at 611–12; Forte, 377 F.3d at 896-97.
engage in work activities. (Tr. 319, 345-46, 368, 400, 403, 407, 427-28). See also
McNamara, 590 F.3d at 611; Forte, 377 F.3d at 896-97. Thus, the ALJ was not required
to include the word “obesity” in the hypothetical posed to the VE, because the functional
limitations and concrete consequences of plaintiff’s obesity were laid out in the RFC and
the hypothetical questioning.
As the hypothetical posed to the VE was proper, the VE’s opinions are substantial
evidence that plaintiff is able to perform jobs that exist in significant numbers in the
national economy. Plaintiff is therefore not disabled. The decision of the Commissioner
An appropriate Judgment Order is issued herewith.
S/ David D. Noce
UNITED STATES MAGISTRATE JUDGE
Signed on March 17, 2017.
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