Brady v. Colvin
MEMORANDUM OPINION...the ALJ was not required to further develop the record either by obtaining Ms. Gegg's treatment notes or the surveillance video, because substantial evidence supports her determination that Bradys condition medically improve d. Significantly, although Brady reported to the ALJ and to Ms. Burner that she was disabled due to her physical impairments, shedoes not directly challenge the ALJ's findings regarding her physical condition, other than objecting to the ALJs failure to obtain the surveillance video. Accordingly, Judgment will be entered separately in favor of Defendant in accordance with this Memorandum. Signed by Magistrate Judge Abbie Crites-Leoni on 9/15/17. (MRS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CHRISTINA MARIE BRADY,
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
) Case No. 4:16CV1173 ACL
Plaintiff Christina Marie Brady brings this action pursuant to 42 U.S.C. ' 405(g), seeking
judicial review of the Social Security Administration (“SSA”) Commissioner’s decision,
following continuing disability review finding that she was no longer entitled to
previously-granted disability benefits under Titles II and XVI of the Social Security Act. This
matter is pending before the undersigned United States Magistrate Judge, with consent of the
parties, pursuant to 28 U.S.C. § 636(c). A summary of the entire record is presented in the
parties’ briefs and is repeated here only to the extent necessary.
I. Procedural History
On September 22, 2009, Brady was found disabled beginning May 15, 2008, under the
applications for disability benefits that she filed on April 11, 2008. (Tr. 65-71.) The ALJ noted
that medical improvement was “expected with appropriate treatment.” (Tr. 70.) Consequently,
the ALJ recommended a continuing disability review in one year. Id.
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 is substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit.
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On December 23, 2013, the SSA reviewed Brady’s claim for continuing disability, and
concluded that Brady was no longer disabled as of December 15, 2013. (Tr. 96-100.) Brady
appealed the termination of benefits, and the termination was affirmed upon reconsideration. (Tr.
104-115.) On January 30, 2015, following a hearing, an ALJ found that Brown’s disability ended
on December 15, 2013, due to medical improvement. (Tr. 14-27.) On May 18, 2016, the
Appeals Council denied Brady’s request for review of the ALJ’s decision. (Tr. 1-3, 6.) Thus,
the decision of the ALJ stands as the final decision of the Commissioner.
In the instant action, Brady argues that the ALJ “failed to fully and fairly develop the
record.” (Doc. 17 at 3.)
II. The ALJ=s Determination
The ALJ made the following findings:
1. The most recent favorable medical decision finding that the claimant was disabled is
the decision dated September 22, 2009. This is known as the “comparison point decision”
2. At the time of the CPD, the claimant had the following medically determinable
impairments: degenerative disc disease of the lumbar spine, shoulder pain, obesity,
dysthymic disorder, hypochondriasis and a personality disorder. These impairments were
found to result in the residual functional capacity to perform sedentary work as defined in
20 CFR 404.1567(a) and 416.967(a) except she is unable to do any prolonged sitting,
standing or walking. She may occasionally reach, push, pull, balance or climb ladders or
scaffolds. She should avoid all exposure to unprotected heights and moving mechanical
parts. Finally, she would be limited to performing simple routine tasks in a low-stress
environment with limited interaction with supervisors and co-workers.
3. Through December 15, 2013, the date the claimant’s disability ended, the claimant did
not engage in substantial gainful activity (20 CFR 404.1594(f)(1)).
4. The medical evidence establishes that, as of December 15, 2013, the claimant had the
following medically determinable impairments: tendonitis of left shoulder and bilateral
ankles, obesity, and depression.
5. Since December 15, 2013, the claimant did not have an impairment or combination of
impairments which met or medically equaled the severity of an impairment listed in 20
CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1525 and 404.1526).
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6. Medical improvement occurred as of December 15, 2013 (20 CFR 404.1594(b)(1)).
7. As of December 15, 2013, the impairments present at the time of the CPD had
decreased in medical severity to the point where the claimant had the residual functional
capacity to perform a full range of work at all exertional levels but with the following
nonexertional limitations: She can frequently reach overhead with both upper extremities.
8. The claimant’s medical improvement is related to the ability to work because it
resulted in an increase in the claimant’s residual functional capacity (20 CFR
9. As of December 15, 2013, the claimant continued to have a severe impairment or
combination of impairments (20 CFR 404.1594(f)(6)).
10. Based on the impairments present as of December 15, 2013, the claimant had the
residual functional capacity to perform a full range of work at all exertional levels but with
the following nonexertional limitations: She can (1) stand, sit and walk for four hours at a
time and 8 hours in a workday, each; (2) frequently reach overhead with both upper
extremities, and has no other limitations with regards to her upper extremities; (3)
frequently climb stairs, ramps, ladders, and scaffolds, and she can frequently crawl; (4)
have occasional exposure to unprotected heights; and (5) tolerate frequent exposure to
moving mechanical parts. Further, she can (1) understand, remember, and carry out
simple instructions; (2) have occasional interaction with supervisors, co-workers, and the
public; and (3) make simple, work-related decisions, and tolerate occasional change in
11. As of December 15, 2013, the claimant was unable to perform past relevant work (20
12. On December 15, 2013, the claimant was a younger individual age 18-49 (20 CFR
13. The claimant has at least a high school education and is able to communicate in
English (20 CFR 404.1564).
14. Beginning on December 15, 2013, 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 the claimant is “not disabled,” whether or not the claimant has
transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
15. As of December 15, 2013, considering the claimant’s age, education, work
experience, and residual functional capacity based on the impairments present as of
December 15, 2013,the claimant was able to perform a significant number of jobs in the
national economy (20 CFR 404.1560(c) and 404.1566).
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16. The claimant’s disability ended as of December 15, 2013 (20 CFR 404.1594(f)(8)).
The ALJ’s final decision reads as follows:
The claimant’s disability under sections 216(i) and 223(f) of the Social Security Act ended
as of December 15, 2013.
III. Statutory Framework and Standard of Review
Once an individual becomes entitled to disability and SSI benefits, her continued
entitlement to benefits must be reviewed periodically. 42 U.S.C. § 423(f)(1); 20 C.F.R.
§' 404.1594(f), 416.949(a). If there has been medical improvement related to the claimant’s
ability to work, and the claimant is able to engage in substantial gainful activity, then a finding of
not disabled will be appropriate. Id.; Nelson v. Sullivan, 946 F.2d 1314, 1315 (8th Cir. 1991).
The “medical improvement” standard requires the Commissioner to compare a claimant’s current
condition with the condition existing at the time the claimant was found disabled and awarded
benefits. Delph v. Astrue, 538 F.3d 940, 945-46 (8th Cir. 2008), cert. denied, 129 S. Ct. 1999
The Eighth Circuit has articulated the burden in this type of case as follows:
The claimant in a disability benefits case has a ‘continuing burden’ to
demonstrate that he is disabled, Mathews v. Eldridge, 424 U.S. 319, 336, 96 S.Ct.
893, 903, 47 L.Ed.2d 18 (1976), and no inference is to be drawn from the fact that
the individual has previously been granted benefits. 42 U.S.C. ' 423(f). Once
the claimant meets this initial responsibility, however, the burden shifts to the
Secretary to demonstrate that the claimant is not disabled. Lewis v. Heckler, 808
F.2d 1293, 1297 (8th Cir. 1987). If the Government wishes to cut off benefits due
to an improvement in the claimant’s medical condition, it must demonstrate that the
conditions which previously rendered the claimant disabled have ameliorated, and
that the improvement in the physical condition is related to claimant’s ability to
work. 20 C.F.R. ' 404.1594(b)(2)-(5).
Nelson, 946 F.2d at 1315-16.
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The continuing disability review process involves a sequential analysis prescribed in 20
C.F.R. § 404.1594(f), pursuant to which the Commissioner must determine the following:
(1) whether the claimant is currently engaging in substantial gainful activity, (2) if
not, whether the disability continues because the claimant’s impairments meet or
equal the severity of a listed impairment, (3) whether there has been a medical
improvement, (4) if there has been a medical improvement, whether it is related to
the claimant’s ability to work, (5) if there has been no medical improvement or if
the medical improvement is not related to the claimant’s ability to work, whether
any exception to medical improvement applies, (6) if there is medical improvement
and it is shown to be related to the claimant’s ability to work, whether all of the
claimant’s current impairments in combination are severe, (7) if the current
impairment or combination of impairments is severe, whether the claimant has the
residual functional capacity to perform any of his past relevant work activity, and
(8) if the claimant is unable to do work performed in the past, whether the claimant
can perform other work.
Delph, 538 F.3d at 945-46.
The regulations define medical improvement as:
[A]ny decrease in the medical severity of your impairment(s) which was present at
the time of the most recent favorable medical decision that you were disabled or
continued to be disabled. A determination that there has been a decrease in
medical severity must be based on changes (improvement) in the symptoms, signs
and/or laboratory findings associated with your impairment(s).
20 C.F.R. §' 404.1594(b)(1), 416.994(b)(1)(I).
Judicial review of the Commissioner’s decision is limited to determining whether the
Commissioner’s findings are supported by substantial evidence. See Finch v. Astrue, 547 F.3d
933, 935 (8th Cir. 2008). “Substantial evidence ‘is less than a preponderance, but enough so that
a reasonable mind might find it adequate to support the conclusion.’” Cruse v. Chater, 85 F.3d
1320, 1323 (8th Cir. 1996) (quoting Oberst v. Shalala, 2 F.3d 249, 250 (8th Cir. 1993)). The
Court does not re-weigh the evidence or review the record de novo. Id. at 1328 (citing Robinson
v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992)). Instead, even if it is possible to draw two different
conclusions from the evidence, the Court must affirm the Commissioner’s decision if it is
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supported by substantial evidence. Id. at 1320; Clark v. Chater, 75 F.3d 414, 416-17 (8th Cir.
In her single claim, Brady argues that the ALJ failed to fully and fairly develop the record.
Specifically, Brady contends that the ALJ failed to obtain the treatment records or notes from
Brady’s therapist, Debbie Gegg, MSW, LCSW.
It is well settled that “the ALJ bears a responsibility to develop the record fairly and fully,
independent of the claimant's burden to press his case.” Snead v. Barnhart, 360 F.3d 834, 838
(8th Cir. 2004). That duty is heightened where, as here, the claimant is not represented by
counsel. See Reeder v. Apfel, 214 F.3d 984, 987 (8th Cir. 2000). “An ALJ is required to obtain
additional medical evidence if the existing medical evidence is not a sufficient basis for a
decision.” Nader v. Shalala, 22 F.3d 186, 189 (8th Cir. 1994). However, “an ALJ is permitted
to issue a decision without obtaining additional medical evidence so long as other evidence in the
record provides a sufficient basis for the ALJ’s decision.” Id.; Haley v. Massanari, 258 F.3d 742,
749-50 (8th Cir. 2001). “There is no bright line indicating when the Commissioner has or has not
adequately developed the record; rather, such an assessment is made on a case-by-case basis.”
Mouser v. Astrue, 545 F.3d 634, 639 (8th Cir. 2008). Reversal due to failure to develop the record
is only warranted when such failure is unfair or prejudicial. Onstad v. Shalala, 999 F.2d 1232,
1234 (8th Cir. 1993).
Ms. Gegg authored a letter on March 25, 2014, in which she indicated that she had been
seeing Brady for mental health therapy since January 5, 2013. (Tr. 591.) Ms. Gegg stated that
she saw Brady every other week to “work on her issues with depression and also anxiety due to
marital problems as well as trying to deal with her physical disabilities and chronic pain.” Id.
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She stated that Brady “continues to make strides towards her goals of increasing her
communication skills, decreasing depression and anxiety symptoms and working on stabilizing
her marriage,” although she “still has not fully met her goals and her mental health issues continue
to interfere with her ability to live her life in a completely healthy way.” Id. Ms. Gegg
recommended that Brady continue with therapy “at least for the next several months,” so that goals
could be met. Id. In an addendum dated September 16, 2014, Ms. Gegg indicated that Brady
continued to see her every other week to work on reaching her goals. Id. She stated that Brady
started taking Cymbalta2 for depression two weeks prior. Id. Ms. Gegg further stated that
Brady’s marriage had failed since her previous narration, and that Brady was “struggling with that
setback.” Id. She continued that Brady “expresses feelings of increased anxiety and frustration
with her personal situation and how to handle those feelings.” Id. Ms. Gegg noted that she had
not yet been contacted by any agency regarding her previous statement and invited contact if there
were any questions. Id.
The ALJ recognized that Brady had been seeing Ms. Gegg for therapy since January 5,
2013, but stated that the “record does not contain treatment records or notes from Ms. Gegg.”
(Tr. 22.) The ALJ also discussed Ms. Gegg’s March 2014 opinion. (Tr. 24.) She again noted
that lack of treatment notes, and further found that her statement about “the claimant’s mental
health issues interfering with her life is vague.” Id. The ALJ concluded that Ms. Gegg’s opinion
was entitled to “little weight.” Id.
At the administrative hearing, Brady, who was unrepresented at the time, testified that she
was seeing Ms. Gegg every other week for therapy. (Tr. 43.) The ALJ remarked, “We can
update those records as well.” Id.
Cymbalta is an antidepressant drug indicated for the treatment of depression. See Physician’s
Desk Reference (“PDR”), S-234 (71st ed. 2017).
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Defendant acknowledges that, “for whatever reason, by the time the ALJ was ready to
make her decision in this case, Ms. Gegg’s counseling notes were not in the record.” (Doc. 20 at
p. 6.) Defendant contends that the ALJ’s failure to obtain Ms. Gegg’s records was not prejudicial,
as the ALJ had sufficient evidence with which to make a decision. Brady argues that the opinion
of Ms. Gegg, as an “other source,” was necessary to determine the severity of her mental
“[T]here are three major distinctions between acceptable medical sources and other[
sources]: (1) Only acceptable medical sources can provide evidence to establish the existence of a
medically determinable impairment, (2) only acceptable medical sources can provide medical
opinions, and (3) only acceptable medical sources can be considered treating sources.” Sloan v.
Astrue, 499 F.3d 883, 888 (8th Cir. 2007) (citations omitted). “Other sources” include medical
sources such as nurse practitioners, physician assistants, chiropractors, and licensed clinical social
workers or therapists. Id.
While these other sources cannot establish the existence of a medically determinable
impairment, information from such sources “may be based on special knowledge of the individual
and may provide insight into the severity of the impairment(s) and how it affects the individual’s
ability to function.” SSR 06-03P at *2. See also Nowling v. Colvin, 813 F.3d 1110, 1123-24 (8th
Cir. 2016). “Evidence provided by ‘other sources’ must be considered by the ALJ; however, the
ALJ is permitted to discount such evidence if it is inconsistent with the evidence in the record.”
Lawson v. Colvin, 807 F.3d 962, 967 (8th Cir. 2015); see also Raney v. Barnhart, 396 F.3d 1007,
1010 (8th Cir. 2005) (in determining what weight to give to other evidence, the ALJ has more
discretion and is permitted to consider any inconsistencies found within the record).
The ALJ considered Ms. Gegg’s opinion, but found that it was vague and accorded it little
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weight. The ALJ also considered the opinions of the following medical sources in evaluating
Brady’s mental impairments: treating internist Carolyn Jachna, M.D.; consultative psychologist
Alison Burner, M.A.; and state agency consultants Sherry Bassi, Ph.D., and Marsha Toll, Psy.D.
(Tr. 20-22, 24.) The ALJ stated that Brady reported a worsening of her depression symptoms to
Dr. Jachna in February 2014. (Tr. 20, 572.) Dr. Jachna noted symptoms of depressed mood,
decreased appetite, difficulty sleeping, and diminished interest in things she typically enjoys; and
increased anxiety at times. Id. Brady reported that she was having relationship problems, which
caused the worsening symptoms. (Tr. 572.) She also indicated that she was seeing counselors
for the symptoms. Id. Upon examination, Brady was not anxious, her mood and affect were
appropriate, her insight and judgment were normal, and she did not exhibit suicidal ideation. (Tr.
576.) Dr. Jachna prescribed Lexapro3 for Brady’s depression. (Tr. 20-21, 574.) The ALJ
noted that, in April 2014, Brady reported an improvement of the initial depression symptoms with
medication. (Tr. 21, 577.) Upon examination, Dr. Jachna noted Brady’s mood and affect were
appropriate. (Tr. 579.) She was instructed to follow up in three months. Id. The ALJ stated
that the record indicates that Brady continued to take Lexapro. (Tr. 21, 577, 580.)
The ALJ next discussed the findings of consultative psychologist Alison Burner. (Tr.
21-22.) Ms. Burner, a Licensed Psychologist, examined Brady on December 9, 2013, at the
request of the state agency. (Tr. 444.) Brady reported that she was receiving disability benefits
at that time because of degenerative disc disease and chronic pain. Id. She believed that the
psychological evaluation was unnecessary, and was based on a mistaken belief that she was
working cleaning houses. Id. Brady’s psychiatric history was negative for hospitalization. (Tr.
445.) She reported that she had been seeing a therapist regularly for about a year. Id. Brady
Lexapro is an antidepressant drug indicated for the treatment of depression. See PDR at S-504.
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was unaware of any official psychiatric diagnosis, but indicated that she started going to therapy
because she was feeling “too sad” and thought she might be depressed. Id. She reported that the
therapy was helpful. Id. Upon mental status exam, Brady was cooperative, her affect was
appropriate, her speech was clear, she had good social skills, there was no evidence of perceptual
disturbance, her thought content was rational and organized, her memory was intact, her abstract
thinking was normal, her insight and judgment were average, and her attention and concentration
were adequate. (Tr. 445-46.) Brady denied all significant mental health issues and reported that
her claim was medical in nature. (Tr. 445.) When Ms. Burner questioned her about her
allegation of symptoms of depression, Brady responded: “I don’t know. I get frustrated and
angry a lot because of my pain, I have no tolerance.” Id. Ms. Burner stated that Brady did not
note any symptoms of clinical depression and, when given a list, she did not endorse any of the
symptoms. Id. As to Brady’s activities of daily living, Ms. Burner stated that Brady was able to
care for her daily needs adequately; was able to shop, cook, clean, pay bills, and do laundry; but
was limited by her medical issues and chronic pain. (Tr. 446.) Ms. Burner stated that Brady
reported no difficulty with social functioning, and indicated that she has friends. Id. Ms. Burner
found that Brady had no psychiatric diagnosis. Id. She stated that Brady would not have
difficulty interacting in a socially acceptable and appropriate manner in work situations with
employers or coworkers due to psychological issues. Id.
The ALJ also discussed the opinions of the state agency psychologists. On December 18,
2013, Sherry Bassi, Ph.D., completed a Psychiatric Review Technique, in which she found that
Brady had no medically determinable impairment. (Tr. 464.) Marsha Toll, Psy.D., also found
that Brady had no medically determinable impairment in a March 2014 Psychiatric Review
Technique. (Tr. 489.) The ALJ stated that these opinions are consistent with Ms. Burner’s
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December 2013 report. (Tr. 24.)
The ALJ, however, noted that Brady began complaining of
worsening symptoms of depression to Dr. Jachna in February 2014, and was prescribed
medication to treat her depression at that time. Id. The ALJ stated that Brady’s depression has
responded to therapy and medication. She indicated that she was assigning little weight to the
opinions of the state agency consultants. Id.
The undersigned finds that Brady was not prejudiced by the ALJ’s failure to obtain the
treatment notes of Ms. Gegg. The ALJ found that Brady’s condition improved as of December
15, 2013, such that she no longer had severe hypochondriasis or a personality disorder, but her
depression continued to be a severe impairment. (Tr. 16.) The mental RFC assessed by the ALJ
did not change significantly from the previous decision. The prior favorable decision found that
Brady was limited to performing “simple, routine tasks in a low-stress environment with limited
interaction with supervisors and co-workers,” whereas the ALJ found that, after December 15,
2013, Brady was limited to “occasional interaction with supervisors, co-workers, and the public;”
and could “make simple, work-related decisions, and tolerate occasional change in work location.”
(Tr. 16, 19.)
Substantial evidence in the record exists from which the ALJ could make a determination
regarding the severity of Brady’s mental impairments. The following evidence discussed by the
ALJ supports her determination that Brady’s depression was not disabling: (1) Brady’s testimony
at the August 2014 administrative hearing that she was unable to work due to problems with her
back, right knee, shoulders, and feet, rather than any mental impairment; (2) Brady’s reports to Ms.
Burner that she did not experience any significant mental health issues, and that that her disability
was medical in nature; (3) Ms. Burner’s conclusion that Brady’s mental status examination was
within normal limits, and findings that Brady was able to care for her daily needs, perform
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significant daily activities, and had no difficulty with social functioning; (4) the state agency
psychologists’ opinions, based primarily on Ms. Burner’s report, that Brady had no medically
determinable impairment; and (5) Dr. Jachna’s treatment notes revealing Brady’s complaints of
increased depression secondary to relationship problems decreased with medication management.
Notably, Brady has not submitted Ms. Gegg’s treatment notes nor has she otherwise
informed the Court of their significance despite being represented by counsel at the Appeals
Council stage and in the instant action. See Onstad v. Shalala, 999 F.2d 1232, 1234 (8th Cir.
1993) (“[I]t is of some relevance to us that the lawyer did not obtain (or, so far as we know, try to
obtain) the items that are now being complained about.”).
Further, Ms. Gegg’s statement that Brady continued to work on her depression and anxiety
due to marital problems, and that she still had not “fully met her goals and her mental health issues
continue to interfere with her ability to live her life in a completely healthy way” is not inconsistent
with the ALJ’s determination. As previously discussed, the ALJ recognized that Brady continued
to suffer from depression, and consequently limited her to simple work, with only occasional
changes in work location and occasional interaction with supervisors, co-workers, and the public.
Although it is unclear what efforts, if any, the ALJ undertook to obtain Ms. Gegg’s treatment
notes, Brady has not shown that she was prejudiced by this error.
Brady next briefly argues that the ALJ “also failed to fully and fairly develop the record by
failing to request a copy of the video tape from the Officer of Inspector General, CDI
Investigators.” (Doc. 17 at 7.)
At some point during the continuing disability review, the Missouri Disability
Determination Section (“DDS”) requested that the Commissioner’s Office of Inspector General
(“OIG”) commence an investigation of Brady. On December 9, 2013, Thomas Brady, a Special
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Agent of the OIG, followed and observed Ms. Brady as part of this investigation. (Tr. 454.)
Agent Brady detailed his findings in a report titled “Summary Report of Investigation,
Cooperative Disability Investigations Unit, St. Louis CDI.” (Tr. 450-58.) Agent Brady reported
that he observed Ms. Brady leaving her home, walking down the partially snow-covered brick
sidewalk, entering her Jeep, and exiting her vehicle without difficulty. (Tr. 454.) He stated that
he next observed Ms. Brady walk to and from a doctor’s office without difficulty, and then walk
into a lounge and socialize with the bartender. Id. at 454-55. Agent Brady subsequently
interviewed Ms. Brady at her home, where she reported that she was able to care for herself; drive;
shop frequently, to reduce the number of packages she has to carry; and socialize outside the home
about once every two weeks. (Tr. 455.) She stated that she was limited on what she could do
physically, and was taking yoga classes at that time. (Tr. 456.) Agent Brady concluded that,
based on his observations, Ms. Brady did not appear to suffer any obvious physical limitations.
(Tr. 456.) He indicated that a surveillance video from his observations of Ms. Brady on
December 9, 2013 would be made available upon request. (Tr. 457.)
The ALJ summarized Agent Brady’s report, and noted that the report could be considered,
with all the other evidence, to assess the severity of Brady’s impairments as well as Brady’s
credibility. (Tr. 22.)
Brady argues that the ALJ erred in relying on the CDI investigator’s written report rather
than the video itself. She specifically objects to the investigator’s statement that “Medical and
even lay evidence from the claimant herself show she appears to be more functional than one
would expect from a person who alleges severe back and shoulder pain.” (Tr. 460.)
Brady’s argument lacks merit. The statement to which she refers was included at the
beginning of the CDI report in a section titled “Nature of Referral.” (Tr. 451.) As such, the
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statement was merely explaining the basis for the referral to the CDI for investigation. The ALJ
did not cite the statement in her opinion, and there is no evidence that she relied on that statement.
Brady offers no support for her contention that the ALJ erred in considering the statements
contained in the CDI report. The ALJ properly considered Agent Brady’s report as one of many
factors in assessing Brady’s credibility and in determining her RFC. See SSR 96-7p (in
determining claimant’s credibility, ALJ must include the entire case record, including claimant’s
own statements and “any other relevant evidence in the case record”); Krogmeier v. Barnhart, 294
F.3d 1019, 1024 (8th Cir. 2002) (determination of RFC based on all the evidence in the record,
including the “observations of treating physicians and others, and an individual’s own description
of his limitations”); see also Graffis v. Colvin, No. 4:14 CV 1486 SNLJ(JMB), 2015 WL 5098776
(E.D. Mo. Aug. 11, 2015) (finding ALJ properly considered entire record, including “evidence
offered by the CDI investigator” in determining claimant’s RFC).
In sum, the ALJ was not required to further develop the record either by obtaining Ms.
Gegg’s treatment notes or the surveillance video, because substantial evidence supports her
determination that Brady’s condition medically improved. Significantly, although Brady
reported to the ALJ and to Ms. Burner that she was disabled due to her physical impairments, she
does not directly challenge the ALJ’s findings regarding her physical condition, other than
objecting to the ALJ’s failure to obtain the surveillance video.
Accordingly, Judgment will be entered separately in favor of Defendant in accordance with
/s/ Abbie Crites-Leoni
UNITED STATES MAGISTRATE JUDGE
Dated this 15th day of September, 2017.
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