Knight v. Colvin

Filing 19

MEMORANDUM AND ORDER. (See Full Order.) For the reasons discussed above, the undersigned finds that substantial evidence in the record as a whole supports the Commissioner's decision that Plaintiff is not disabled. Accordingly, IT IS HEREBY OR DERED that the final decision of the Commissioner denying Social Security benefits to Plaintiff is AFFIRMED. A separate judgment in accordance with this Memorandum and Order is entered this date. Signed by Magistrate Judge Patricia L. Cohen on 1/10/2018. (CBL)

EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DEBRA KNIGHT,

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Plaintiff,
vs.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.

Case No. 4:16-CV-322 PLC

MEMORANDUM AND ORDER
Plaintiff Debra Knight seeks review of the decision of the Social Security Commissioner,
Nancy Berryhill, denying her application for Disability Insurance Benefits under Title II of the
Social Security Act.2 Because the Court finds that substantial evidence supports the decision to
deny benefits, the Court affirms the denial of Plaintiff’s application.
I.

Background and Procedural History
In October 2010, Plaintiff filed an application for Disability Insurance Benefits alleging

she was disabled as of March 31, 2007, her alleged onset date of disability and her date last
insured for purposes of Disability Insurance Benefits.3 Plaintiff, born on January 3, 1956,
claimed she was disabled as a result of:

fibromyalgia; “severe widespread muscle pain,

tenderness, & weakness”; chronic fatigue syndrome; depression, malaise, and anxiety;
significant short-term memory loss; difficulty concentrating and focusing; osteoarthritis;
1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to be
taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g).
2
The parties consented to the exercise of authority by the United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c). (ECF No. 9).
3
Plaintiff filed a previous application for Disability Insurance benefits, which the Commissioner
denied in March 2009. (Tr. 192).
1

“residuals of past back injury”; neck pain and immobility; and sleep apnea. (Tr. 195). The
Social Security Administration (SSA) denied Plaintiff’s claims, and she filed a timely request for
a hearing before an administrative law judge (ALJ). (Tr. 29).
An ALJ conducted a hearing in February 2012 and, on May 25, 2012, the ALJ entered a
decision denying Plaintiff’s application for benefits.4 (Tr. 10-25, 639-75). After the SSA
Appeals Council denied Plaintiff’s request for review, she appealed to the United States District
Court. (Tr. 614-33). The court found that the ALJ erred in finding that Plaintiff retained the
residual functional capacity (“RFC”) to perform medium work because the ALJ: (1) improperly
discounted the opinion of Plaintiff’s treating physician; and (2) failed to support the RFC
determination with citation to any medical evidence. Knight v. Colvin, Case No. 4:13-CV-1191
CEJ, 2014 WL 4352061, at *10 (E.D.Mo. Sept. 2, 2014). The district court reversed the
Commissioner’s denial of benefits and remanded for further proceedings with directions to
“consider whether to obtain the opinion of a consultative examiner to determine whether plaintiff
was able to maintain substantial gainful employment on March 31, 2007.” Id.
Pursuant to the district court’s remand order, the SSA Appeals Council vacated the
Commissioner’s final decision and remanded the case to the ALJ, who conducted a second
hearing on January 29, 2015. (Tr. 537-84, 636). At the hearing, the ALJ heard the testimony of:
medical expert, Dr. Anne Winkler, M.D., Ph.D., a specialist in internal medicine and
rheumatology; Plaintiff; and a vocational expert. (Tr. 537-84). In a decision dated July 10,
2015, the ALJ applied the five-step evaluation set forth in 20 C.F.R. §§ 404.1520, 416.9205 and
4

The ALJ found Plaintiff had the severe impairments of fibromyalgia and chronic fatigue
syndrome and the residual functional capacity (“RFC”) to “perform the full range of medium
work as defined in 20 CR 404.1567(c).” (Tr. 10-25).
5
To determine whether a claimant is disabled, the Commissioner engages in a five-step
evaluation process. See 20 C.F.R. §§ 404.1520. Those steps require a claimant to show that he
or she: (1) is not engaged in substantial gainful activity; (2) has a severe impairment or
2

again determined that Plaintiff “was not under a disability within the meaning of the Social
Security Act on March 31, 2007, the claimant’s alleged onset date of disability and her date last
insured[.]” (Tr. 462).
The ALJ found that, through the date last insured, Plaintiff had: the severe impairments
of fibromyalgia, sleep apnea, and mild osteoarthritis of the right knee; and the non-severe
impairments of mild mitral insufficiency and irritable bowel syndrome.

(Tr. 464).

After

reviewing the medical opinion evidence, medical records, and testimony and finding that
Plaintiff was “not entirely credible,” the ALJ determined that, through March 31, 2007, Plaintiff
had the RFC to perform light work:
except the claimant should never climb ropes, ladders, or scaffolds but was
able to occasionally climb ramps and stairs. She was able to frequently
balance, stoop, kneel, crouch and crawl. The claimant should have avoided
concentrated exposure to cold, wetness and humidity, and all exposure to
unprotected heights.
(Tr. 465). The ALJ further determined that, through March 31, 2007, Plaintiff was unable to
perform past relevant work but there existed a significant number of jobs in the national
economy that Plaintiff could perform. (Tr. 470).
Plaintiff filed a request for review of the ALJ’s decision with the SSA Appeals Council,
which denied review on January 15, 2016.

(Tr. 454-57).

Plaintiff has exhausted all

administrative remedies, and the ALJ’s decision stands as the SSA’s final decision. Sims v.
Apfel, 530 U.S. 103, 106-07 (2000).
II.

Standard of Review

combination of impairments which significantly limits his or her physical or mental ability to do
basic work activities or (3) has an impairment which meets or exceeds one of the impairments
listed in 20 C.F.R., Subpart P, Appendix 1; (4) is unable to return to his or her past relevant
work; and (5) the impairments prevent him or her from doing any other work. Id.
3

A court must affirm the ALJ’s decision if it is supported by substantial evidence. 42
U.S.C. § 405(g). “Substantial evidence ‘is less than a preponderance, but enough so that a
reasonable mind might find it adequate to support the conclusion.’” Cruze v. Chater, 85 F.3d
1320, 1323 (8th Cir. 1996) (quoting Boerst v. Shalala, 2 F.3d 249, 250 (8th Cir. 1993)). In
determining whether the evidence is substantial, a court considers evidence that both supports
and detracts from the Commissioner’s decision. Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th
Cir. 2009). However, a court “do[es] not reweigh the evidence presented to the ALJ and [it]
defer[s] to the ALJ’s determinations regarding the credibility of testimony, as long as those
determinations are supported by good reason and substantial evidence.” Renstrue v. Astrue, 680
F.3d 1057, 1064 (8th Cir. 2012) (quoting Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir.
2006)).
“If, after reviewing the record, the court finds it is possible to draw two inconsistent
positions from the evidence and one of those positions represents the ALJ’s findings, the court
must affirm the ALJ’s decision.” Partee v. Astrue, 638 F.3d 860, 863 (8th Cir. 2011) (quoting
Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)). The Eighth Circuit has repeatedly held that
a court should “defer heavily to the findings and conclusions” of the Social Security
Administration. Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010); Howard v. Massanari, 255
F.3d 577, 581 (8th Cir. 2001).
III.

Discussion
Plaintiff claims that substantial evidence does not support the ALJ’s determination that

she was not disabled on March 31, 2007, Plaintiff’s alleged onset date of disability and date last
insured.6 More specifically, Plaintiff contends the ALJ erred in discrediting the opinion of her
“If an applicant for disability benefits is not insured for Title II purposes, then we consider the
applicant’s medical condition as of his or her date last insured.” Turpin v. Colvin, 750 F.3d 989,
6

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treating physician and assigning great weight to that of a consulting physician. (ECF No. 9).
Additionally, Plaintiff argues that the vocational expert’s testimony at step five of the sequential
evaluation process did not constitute substantial evidence because it was based upon an incorrect
RFC. (Id.). Defendant counters that substantial evidence supports the ALJ’s RFC assessment
because:

(1) the ALJ properly evaluated the medical opinion evidence; (2) the ALJ’s

hypothetical question accurately reflected Plaintiff’s limitations; and (3) the ALJ properly
evaluated Plaintiff’s credibility. (ECF No. 17).
A. Medical opinion evidence
1. Treating physician
Plaintiff argues that the ALJ erred in discrediting the medical opinion of her treating
physician, Dr. Rosemary Cannistraro, M.D. (ECF No. 9). In particular, Plaintiff maintains that
the ALJ failed to provide “legally sufficient rationale” for discrediting Dr. Cannistraro who
opined in a fibromyalgia RFC questionnaire of January 2012 that Plaintiff had severe functional
limitations. (Id. at 15). In response, Defendant maintains that the ALJ properly discredited the
extreme limitations contained in Dr. Cannistraro’s opinion because they were inconsistent with
the evidence as a whole. (ECF No. 17 at 8-9).
“A treating physician’s opinion regarding an applicant’s impairment will be granted
controlling weight, provided the opinion is well supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the
record.” Hamilton v. Astrue, 518 F.3d 607, 610 (8th Cir. 2008) (quoting Singh v. Apfel, 222
F.3d 448, 452 (8th Cir. 2000)). “The ALJ may discount or disregard such an opinion if other
medical assessments are supported by superior medical evidence, or if the treating physician has
993 (8th Cir. 2014) (citing Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997)). The ALJ found,
and Plaintiff does not dispute, that her date last insured was March 31, 2007.
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offered inconsistent opinions.” Id. (quoting Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001)).
See also Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000). Whether the ALJ grants a
treating physician’s opinion substantial or little weight, “[t]he regulations require that the ALJ
‘always give good reasons’ for the weight afforded to a treating physician’s evaluation.” Reed v.
Barnhart, 399 F.3d 917, 921 (8th Cir. 2005) (quoting 20 C.F.R. § 404.1527(d)(2)).
Plaintiff’s earliest record of treatment by Dr. Cannistraro is from a follow-up
appointment in April 2003. (Tr. 57). At that appointment, Plaintiff reported light-headedness,
neck discomfort, fatigue, abdominal pain and constipation, and joint swelling and tenderness.
(Id.). Plaintiff again complained of fatigue, shortness of breath, and joint tenderness at an
appointment in September 2003. (Tr. 56). In January 2004, Plaintiff complained of “neck
arthritis,” swollen ankles, abdominal pain, and shortness of breath. (Tr. 55). Plaintiff was taking
Effexor and minocycline. (Id.).
Plaintiff returned to Dr. Cannistraro’s office on August 3, 2004 with chest and shoulder
pain, and she followed-up with Dr. Cannistraro on August 23, 2004. (Tr. 53-54). At that time,
Plaintiff’s chief complaint was “GERD,” and she reported continued fatigue and joint pain “in
feet mainly at night.”

(Tr. 53).

Plaintiff’s medications included Ranitidine, Effexor,

minocycline, Prevacid, and pronanolol. (Id.). Plaintiff followed up with Dr. Cannistraro after a
sleep study in October 2004, and reported that she was “still tired” and “somewhat” depressed.
(Tr. 52). At an appointment in February 2005, Plaintiff complained of fatigue, shortness of
breath, abdomimal pain, nausea, and joint swelling and tenderness, and Dr. Cannistraro refilled
Plaintiff’s prescriptions for Effexor, proponolol, and minocycline. (Tr. 51).
In January 2006, Dr. Cannistraro diagnosed Plaintiff with GERD, sleep disorder, and
anxiety, and she prescribed Cymbalta. (Tr. 50). When Plaintiff returned to Dr. Cannistraro’s

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office the following month, Plaintiff reported continued fatigue but stated that the Cymbalta
“works well” and she “seems to be less tired.” (Tr. 59).

Dr. Cannistraro increased Plaintiff’s

dosage of Cymbalta. (Id.).
In March 2006, Dr. Cannistraro noted that Plaintiff was “mentally much better” but her
“pain [was] bad recently, can’t even babysit, tried to work at Walmart” but could not sit or stand
“all day.” (Tr. 48). Dr. Cannistraro diagnosed Plaintiff with GERD and fibromyalgia. (Id.).
The following month, Plaintiff was “terrible,” depressed, more fatigued, and “not sleeping at
all,” and Dr. Cannistraro prescribed Adderall. (Tr. 47). At her next appointment in May 2006,
Plaintiff reported that the Adderall helped her energy and pain. (Tr. 46). Plaintiff’s fatigue
continued to improve and, in August 2006, Dr. Cannistraro noted that the Adderall “has really
helped fatigue + gives some quality of life.” (Tr. 45).
Plaintiff returned to Dr. Cannistraro’s office in January 2007 and reported that her fatigue
was “much better.” (Tr. 44). Dr. Cannistraro noted that Plaintiff had fibromyalgia and chronic
fatigue syndrome, which “significantly improved with addition of Adderall and Cymbalta. This
is [the] best patient has felt in years.” (Id.). At a follow-up appointment on March 21, 2007, Dr.
Cannistraro noted that Plaintiff’s fatigue was “better” but she continued to experience shortness
of breath. (Tr. 43). Plaintiff informed Dr. Cannistraro that she and her husband had driven to
Mission, Texas and “‘walked over bridge’ Rio Grande.” (Id.). Plaintiff also stated that the
Adderall and Cymbalta helped but Cymbalta was too expensive. (Id.).
When Plaintiff returned to Dr. Cannistraro’s office in June 2007, she complained of “pain
issues,” fatigue, abdominal pain, and joint tenderness. (Tr. 42). In August 2007, Dr. Cannistraro
noted Plaintiff’s joint pain, chronic fatigue, joint swelling in hands, joint tenderness “all over,”
fibromyalgia/chronic fatigue syndrome, and difficulties with “fibro fog + focus.” (Tr. 41). In

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October 2007, Dr. Cannistraro noted that Plaintiff’s “sleep issues [were] worse off Cymbalta –
couldn’t afford it.” (Tr. 40). Dr. Cannistraro prescribed Depakote, Adderall, fluoxetine, and
hysocamine, and she recommended Plaintiff “try to exercise.”

(Id.).

In November 2007,

Plaintiff informed Dr. Cannistraro that she “wants off” Prozac, “didn’t use Depakote due to fear
of another pill” and she continued to suffer fatigue and difficulty sleeping. (Tr. 39).
Dr. Cannistraro continued treating Plaintiff from 2008 through 2011.7 In September
2010, Dr. Cannistraro completed a physical RFC questionnaire for Plaintiff. (Tr. 274-78). In the
questionnaire, Dr. Cannistraro diagnosed Plaintiff with fibromyalgia and chronic fatigue
syndrome and noted that her symptoms included: “muscular weakness and tenderness in legs,
arms, hands. Pt flinches with pain at slight touch in these areas.” (Tr. 274). Where the
questionnaire asked her to identify “clinical findings and objective signs,” Dr. Cannistraro noted:
“Fibromyalgia; osteoarthritis; malaise and fatigue; chronic fatigue syndrome; sleep apnea.” (Id.).
In the 2010 RFC questionnaire, Dr. Cannistraro did not answer whether Plaintiff was a
“malingerer,” but opined that Plaintiff’s “emotional factors contribute to the severity of [her]
symptoms and functional limitations.” (Id.). Specifially, Dr. Cannistraro noted that Plaintiff
suffered depression and anxiety. (Id.). Dr. Cannistraro also stated that Plaintiff’s impairments
would “frequently” interfere with her attention and concentration and she was “incapable of even
‘low stress’ jobs.” (Tr. 275). Dr. Cannistraro did not complete the questions about specific
functional limitations, stating: “unable to evaluate.” (Tr. 275-78).
In January 2012, Dr. Cannistraro completed an RFC questionnaire specific to patients
with fibromyalgia.

(Tr. 310-14).

Dr. Cannistraro stated that Plaintiff had the following

7

Dr. Cannistraro’s treatment notes from the time period following Plaintiff’s March 31, 2007
onset date of disability reflect that Plaintiff’s continue to suffer irritable bowel syndrome, chronic
pain, fatigue, sleep disturbance, chest pain, shortness of breath, depression, joint swelling of the
hands, and headaches. (Tr. 34-39, 291-302, 305-06).
8

diagnosed impairments: fibromyalgia, irritable bowel syndrome, osteoarthritis, hypertension,
esophageal reflux, and chronic pain syndrome. (Tr. 310). Dr. Cannistraro stated that Plaintiff
was not a malingerer and suffered pain “all of the time, worse at other times, 2 days a month can
be ‘ok.’” (Tr. 311). Dr. Cannistraro opined that Plaintiff’s pain would “constantly” interfere
with her attention and concentration, she was incapable of even “low stress” jobs, and she would
be absent from work more than four days per month. (Tr. 311, 313). In regard to functional
limitations, Dr. Cannistraro stated that Plaintiff could: rarely lift/carry less than ten pounds;
never lift/carry more than ten pounds; never twist, crouch, climb ladders, or look up; rarely
stoop/bend, or turn head; and occasionally climb stairs, look down, or hold head in static
position. (Tr. 313). According to Dr. Cannistraro, these symptoms and limitations applied since
June 2005. (Tr. 314).
In her decision, the ALJ did not specify the amount of weight afforded Dr. Cannistraro’s
medical opinion, but she generally discredited it and adopted instead the opinion of the testifying
medical expert, Dr. Winkler. The ALJ observed that Dr. Cannistraro was not certified in
rheumatology and her “statements regarding alleged trigger point findings [in the 2012 RFC
questionnaire] were not specifically documented during her physical examinations of the
claimant.” (Tr. 468). The ALJ also questioned Dr. Cannistraro’s diagnosis of chronic fatigue
syndrome because “it does not remotely comport with the agency’s requirements for such
diagnosis (SSR 14-1p).” (Tr. 469). Citing Dr. Winkler’s testimony, the ALJ explained that the
functional limitations identified by Dr. Cannistraro were also “very contrary” to the results of a
stress test Plaintiff underwent in March 2008. (Tr. 468).
“A treating physician’s opinion is not automatically controlling and may be discredited
when other medical opinions are supported by better medical evidence or when the physician

9

gives inconsistent opinions.” Turpin v. Colvin, 750 F.3d 989, 994 (8th Cir. 2014) (internal
citations omitted). In this case, the ALJ found that Dr. Cannistraro’s treatment notes did not
support the extreme functional limitations identified in her 2012 RFC questionnaire. Despite
stating in the questionnaire that that those limitations dated back to June 2005, Dr. Cannistraro’s
treatment notes reflect that in May 2006, August 2006, and January 2007, Plaintiff reported
significant improvement with Cymbalta and Adderall. On March 21, 2007, ten days before the
date last insured, Dr. Cannistraro noted that Plaintiff had traveled by car to Texas and walked
across the Rio Grande.
Plaintiff cites Lauer v. Apfel, 245 F.3d 700 (8th Cir. 2001) and Singh v. Apfel, 222 F.3d
448 (2000) for the proposition that an RFC finding is a medical determination, and that the RFC
must be based on at least some medical evidence.8 See Lauer, 245 F.3d at 704; Singh, 222 F.3d
at 452. Here, Dr. Winkler’s medical opinion and the results of Plaintiff’s stress tests support the
ALJ’s RFC determination. Upon review of the record, the Court finds that the ALJ properly
evaluated Dr. Cannistraro’s medical opinion, listing “good reasons” for discrediting it.
2.

Consulting physician

Plaintiff claims the ALJ erred in assigning great weight to Dr. Winkler’s opinion. More
specifically, Plaintiff argues that the ALJ “failed to properly consider all the testimony from Dr.
Winkler relative to its consistency with plaintiff’s testimony[.]” (ECF No. 9 at 15). In response,

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Plaintiff also appears to argue that the ALJ improperly evaluated her credibility. (ECF No. 9).
However, the ALJ employed the proper analysis in discrediting Plaintiff’s subjective complaints.
The ALJ noted that, in January 2007 and March 2007, Plaintiff reported that her symptoms had
improved with Adderall and Cymbalta. (Tr. 466). The ALJ also observed that, when Plaintiff
visited Dr. Cannistraro “just over one week before the claimant alleges she became disabled,”
her chief complaint was “pap smear” and she reported driving to Texas and walking across a
bridge over the Rio Grande. (Id.).

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Defendant contends that the ALJ properly evaluated Dr. Winkler’s testimony, which supported
the ALJ’s determination that Plaintiff had the RFC to perform light work with limitations.
At the hearing, Dr. Winkler testified that she was “board certified in internal medicine
and rheumatology” and had reviewed Plaintiff’s medical records. (Tr. 542).
concluded that Plaintiff had the following impairments:

Dr. Winkler

fibromyalgia, sleep apnea, mild

osteoarthritis of the right knee, “mild mitral insufficiency,” and “probably irritable bowel
syndrome.” (Tr. 542-43). Dr. Winkler noted that Plaintiff underwent stress tests in 2002 and
2008 “and she actually had excellent tolerance with” a METs level of 12 in 2002 and 12.08 in
2008. (Tr. 545).
In regard to Plaintiff’s RFC, Dr. Winkler explained that, based on Plaintiff’s 2008 stress
test, Dr. Winkler would place her at a “medium” work level. However, due to osteoarthritis in
Plaintiff’s knee, Dr. Winkler limited Plaintiff’s RFC to light work. (Tr. 545-46). Dr. Winkler
included the following functional limitations: “lift/carry 20 pounds occasionally and 10 pounds
frequently”; “stand/walk six hours a day; “[n]o limits in terms of sitting”; never climb ladders,
ropes, or scaffolds; occasionally climb stairs; and avoid concentrated exposure to cold, wetness,
humidity, and unprotected heights. (Id.).
In response to questions by Plaintiff’s attorney, Dr. Winkler affirmed that fibromyalgia
symptoms “can wax and wane,” but rejected the proposition that Plaintiff’s excellent stress test
score was attributable to a “good” day. (Tr. 547). Dr. Winkler explained: “What I can say is
that she has excellent exercise capacity, and normally if somebody were like lying around a lot,
they would not have that. They would be de-conditioned. . . . [S]omebody who can do 12.8
[METs] on a stress test for 10 minutes usually is fairly fit.”9 (Tr. 548). She further noted that
9

In response to further questioning about the waxing and waning of symptoms, Dr. Winkler
explained:
11

Plaintiff’s stress test results “strongly support someone being able to do work activities[.]” (Tr
549).
Dr. Winkler acknowledged “complaints of fatigue throughout the record” but did not “see
anything objective in the record that would indicate fatigue would be at a level not to be able to
do work activity.” (Tr. 549). In regard to nonexertional, or mental, limitations, Dr. Winkler
testified that she did not consider mental health issues but noted “I didn’t see a lot of treatment
related to mental health issues, but I otherwise would defer to that.” (Tr. 552). Dr. Winkler
stated that, while fibromyalgia does not cause mental limitations, “like many chronic illnesses,
there is a certain percentage of people who will have mental health issues like depression,
anxiety. In most clinic trials where that has been looked at, it’s about 30 percent.” (Tr. 554-55).
Dr. Winkler affirmed that “fibro fog, concentration issues . . . have for a long time been felt to be
associated with fibromyalgia[.]” (Tr. 556). In her experience, “if there seems to be a significant
fibro-[fog] or confusion, those kinds of things, what many of us will do is refer to a neuro
psychologist to have in-depth testing to help sort through what may be causing that.” (Tr. 557).
Dr. Winkler did not find any record of such testing in this case. (Id.).
In her decision, the ALJ discussed Dr. Winkler’s assessment of Plaintiff’s 2008 stress
test results and provided a detailed discussion explaining how the medical facts and non-medical
evidence supported Dr. Winkler’s conclusion that Plaintiff was capable of performing light work.
What you do on a stress test is, it has to do with the oxygen utilization as well
which has to do with fitness. So if somebody, as I tried to say earlier,
somebody was down three days out of seven on a regular basis, that is not
doing anything three days out of seven for months at a time, you would not
get a [METs] of 12.8. You might get a [METs] of 3 or 4. So this suggests . .
. in somewhat objective way that she’s able to function really quite well
generally on a regular basis because you have to be pretty fit to get a 12.8. I
mean I power walk every morning. I’m not sure I could get 12.8. I haven’t
checked, but I do wonder.
(Tr. 550-51).
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(Tr. 468).

The ALJ afforded Dr. Winkler’s opinions “great weight given her outstanding

credentials and thorough review of the medical evidence before offering her analysis.” (Id.).
To the extent Plaintiff argues that the ALJ overlooked consistencies between Dr.
Winkler’s and Plaintiff’s testimony that support a finding of disability, Plaintiff mischaracterizes
Dr. Winkler’s testimony. While Dr. Winkler confirmed that fibromyalgia symptoms “can wax
and wane,” she did not, contrary to Plaintiff’s assertion, suggest that Plaintiff’s symptoms did so.
Nor did Dr. Winkler accept Plaintiff’s theory that Plaintiff performed well on the 2008 stress test
because it was administered on a “good day.”

Furthermore, Dr. Winkler’s testimony that

approximately 30 percent of fibromyalgia patients suffered mental limitations – such as
depression, anxiety, and difficulty concentrating – did not constitute evidence that Plaintiff had
mental impairments requiring nonexertional limitations. In fact, Dr. Winkler expressly declined
to testify to Plaintiff’s nonexertional limitations.

Finally, Dr. Winkler’s general

acknowledgement that “fibro-fog” and difficulty concentrating are often associated with
fibromyalgia did not demonstrate that Plaintiff suffered such symptoms.
Upon review of the record and the ALJ’s decision, the Court finds that the ALJ evaluated
all of the evidence of record and provided “good reasons” for the weight he accorded Dr.
Cannistraro’s and Dr. Winkler’s opinions. Because substantial evidence on the record as a whole
supports the ALJ’s determination to discredit Dr. Cannistraro’s opinion and assign great weight
to Dr. Winkler’s opinion, the Court will not disturb that determination.
B. Vocational Expert Testimony
Plaintiff claims that the vocational expert’s answer to the hypothetical question did not
constitute substantial evidence at step five of the sequential evaluation process because the
question did not include nonexertional limitations. (ECF No. 9 at 20-21). Defendant counters

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that substantial evidence supports the ALJ’s step-five finding because “evidence of record did
not support any additional limitations.” (ECF No. 17 at 16).
If the ALJ finds at step four of the sequential evaluation process that a claimant cannot
perform his past relevant work, the ALJ proceeds to step five, where the burden shifts to the
Commissioner to establish that the claimant maintains the RFC to perform other work that exists
in significant numbers in the national economy. 20 C.F.R. §§ 416.920(a)(4)(v), 416.960(c). See
also Singh, 222 F.3d at 451. Testimony from a vocational expert based on a properly-phrased
hypothetical question constitutes substantial evidence to support the ALJ’s decision. Roe v.
Chater, 92 F.3d 672, 675 (8th Cir. 1996). “A hypothetical question posed to the vocational
expert is sufficient if it sets forth impairments supported by substantial evidence in the record
and accepted as true.” Perkins v. Astrue, 648 F.3d 892, 901-02 (8th Cir. 2011) (quoting Goff v.
Barnhart, 421 F.3d 785, 794 (8th Cir. 2005)).
“The hypothetical question need only include those impairments and limitations found
credible by the ALJ.” Gragg v. Astrue, 615 F.3d 932, 940 (8th Cir. 2010) (quoting Vandenboom
v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005)). Here, the ALJ noted that Plaintiff was never
“treated or evaluated for underlying mental health issues and the cognitive limitations associated
with fibromyalgia.” (Tr. 469). Indeed, the only evaluation relating to Plaintiff’s mental health, a
psychiatric review technique completed by non-examining psychiatrist Dr. Ricardo Moreno in
November 2010, diagnosed Plaintiff with depression but found insufficient evidence to
determine the extent of any limitations. (Tr. 279-89). In addition, Dr. Winkler testified that,
based on the treatment records, Plaintiff’s fatigue would not preclude her from performing all
work activity. (Tr. 469).

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Here, the absence of medical evidence documenting mental health impairments and Dr.
Winkler’s testimony supported the ALJ’s decision not to include non-extertional limitations in
Plaintiff’s RFC. Because the hypothetical question included all of Plaintiff’s limitations found to
exist by the ALJ and set forth in the ALJ’s description of Plaintiff’s RFC, the hypothetical
question was proper and the vocational expert’s testimony constituted substantial evidence
supporting the Commissioner’s denial of benefits.
IV.

Conclusion
For the reasons discussed above, the undersigned finds that substantial evidence in the

record as a whole supports the Commissioner’s decision that Plaintiff is not disabled.
Accordingly,
IT IS HEREBY ORDERED that the final decision of the Commissioner denying Social
Security benefits to Plaintiff is AFFIRMED.
A separate judgment in accordance with this Memorandum and Order is entered this date.

PATRICIA L. COHEN
UNITED STATES MAGISTRATE JUDGE
Dated this10th day of January, 2018

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