Morley v. Astrue
Filing
16
ORDER denying plaintiff's motion for judgment and affirming the decision of the Commissioner. Signed on 10/29/12 by Magistrate Judge Robert E. Larsen. (Wilson, Carol)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
MELISSA MORLEY,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.
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Case No.
11-4315-CV-C-REL-SSA
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Melissa Morley seeks review of the final decision of the Commissioner of Social
Security denying plaintiff’s application for disability benefits under Title II of the Social
Security Act (“the Act”). Plaintiff argues that the ALJ erred in determining plaintiff’s residual
functional capacity and in failing to conduct a proper credibility analysis. I find that the
substantial evidence in the record as a whole supports the ALJ’s finding that plaintiff is not
disabled. Therefore, plaintiff’s motion for summary judgment will be denied and the decision
of the Commissioner will be affirmed.
I.
BACKGROUND
On September 30, 2008, plaintiff applied for disability benefits alleging that she had
been disabled since December 16, 2006. Plaintiff’s disability stems from seizures and back
problems. Plaintiff’s application was denied initially on January 22, 2009; and on February
25, 2011, a hearing was held before an Administrative Law Judge. On March 14, 2011, the
ALJ found that plaintiff was not under a “disability” as defined in the Act. On September 22,
2011, the Appeals Council denied plaintiff’s request for review. Therefore, the decision of the
ALJ stands as the final decision of the Commissioner.
II.
STANDARD FOR JUDICIAL REVIEW
Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for judicial review of a “final
decision” of the Commissioner. The standard for judicial review by the federal district court is
whether the decision of the Commissioner was supported by substantial evidence. 42 U.S.C. §
405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Mittlestedt v. Apfel, 204 F.3d 847,
850-51 (8th Cir. 2000); Johnson v. Chater, 108 F.3d 178, 179 (8th Cir. 1997); Andler v.
Chater, 100 F.3d 1389, 1392 (8th Cir. 1996). The determination of whether the Commissioner’s decision is supported by substantial evidence requires review of the entire record,
considering the evidence in support of and in opposition to the Commissioner’s decision.
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); Thomas v. Sullivan, 876 F.2d 666,
669 (8th Cir. 1989). “The Court must also take into consideration the weight of the evidence
in the record and apply a balancing test to evidence which is contradictory.” Wilcutts v. Apfel,
143 F.3d 1134, 1136 (8th Cir. 1998) (citing Steadman v. Securities & Exchange Commission,
450 U.S. 91, 99 (1981)).
Substantial evidence means “more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson
v. Perales, 402 U.S. at 401; Jernigan v. Sullivan, 948 F.2d 1070, 1073 n. 5 (8th Cir. 1991).
However, the substantial evidence standard presupposes a zone of choice within which the
decision makers can go either way, without interference by the courts. “[A]n administrative
decision is not subject to reversal merely because substantial evidence would have supported
an opposite decision.” Id.; Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988).
III.
BURDEN OF PROOF AND SEQUENTIAL EVALUATION PROCESS
An individual claiming disability benefits has the burden of proving he is unable to
return to past relevant work by reason of a medically-determinable physical or mental
2
impairment which has lasted or can be expected to last for a continuous period of not less than
twelve months. 42 U.S.C. § 423(d)(1)(A). If the plaintiff establishes that he is unable to return
to past relevant work because of the disability, the burden of persuasion shifts to the
Commissioner to establish that there is some other type of substantial gainful activity in the
national economy that the plaintiff can perform. Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir.
2000); Brock v. Apfel, 118 F. Supp. 2d 974 (W.D. Mo. 2000).
The Social Security Administration has promulgated detailed regulations setting out a
sequential evaluation process to determine whether a claimant is disabled. These regulations
are codified at 20 C.F.R. §§ 404.1501, et seq. The five-step sequential evaluation process used
by the Commissioner is outlined in 20 C.F.R. § 404.1520 and is summarized as follows:
1.
Is the claimant performing substantial gainful activity?
Yes = not disabled.
No = go to next step.
2.
Does the claimant have a severe impairment or a combination of impairments
which significantly limits his ability to do basic work activities?
No = not disabled.
Yes = go to next step.
3.
Does the impairment meet or equal a listed impairment in Appendix 1?
Yes = disabled.
No = go to next step.
4.
Does the impairment prevent the claimant from doing past relevant work?
No = not disabled.
Yes = go to next step where burden shifts to Commissioner.
5.
Does the impairment prevent the claimant from doing any other work?
Yes = disabled.
No = not disabled.
3
IV.
THE RECORD
The record consists of the testimony of plaintiff and vocational expert Margaret Kelsey,
in addition to documentary evidence admitted at the hearing.
A.
ADMINISTRATIVE REPORTS
The record contains the following administrative reports:
Earnings Record
The record establishes that plaintiff earned the following income from 1995 to 2009:
Year
Earnings
Year
Earnings
1995
$ 4,137.25
2003
$ 18,334.74
1996
5,471.50
2004
8,999.03
1997
9,026.01
2005
5,877.44
1998
5,442.51
2006
13,992.05
1999
2,630.57
2007
0.00
2000
9,089.06
2008
0.00
2001
16,224.15
2009
0.00
2002
19,853.63
(Tr. at 105, 107-108).
Function Report - Adult
In a Function Report dated October 25, 2008, plaintiff indicated she lives in a house
with her family (Tr. at 152-159). She described her daily activities: “I feed my cats. Make
coffee and bring a cup to my husband. Shower, get dressed and brush my hair. Next I check
my e-mail and look a my daily list. I do the chores on the list for that day. Make lunch. I’ll
try to write or read in the afternoon. I watch some TV in the evenings. Talk with my husband.
Feed my cats dinner. And go to bed. On bad days I wake up and spend the day sitting in my
chair.”
4
Plaintiff indicated that on “seizure days” she cannot dress herself, some days taking a
shower tires her out, washing her hair after a seizure is painful, she is unable to shave her legs
during a seizure day, she cannot eat during a seizure, and “during a seizure I need help getting
to and from the toilet”. On some days plaintiff needs reminders that it is OK to rest if she
needs to.
Plaintiff prepares her own meals, from sandwiches to larger meals. She spends 30
minutes to two hours preparing a meal. Plaintiff is able to clean, do laundry, and wash dishes.
She does one chore per day and it takes her about three hours with breaks. Plaintiff is able to
shop for groceries, clothing, household needs, books, music, movies. She shops at least once a
week for “a few hours.” Plaintiff’s hobbies include reading, writing, watching television,
playing her guitar, making candles, and painting. She does these things as often as she can,
but some days she cannot concentrate enough to finish what she starts. She spends time with
others on a daily basis. She visits her family weekly to help cook.
Plaintiff’s condition affects her ability to lift, stand, walk, talk, climb stairs, complete
tasks, concentrate, understand, follow directions, use her hands, and remember. It does not
affect her ability to squat, bend, reach, sit, kneel, hearing, see, or get along with others. She
can walk about a half a mile before needing to rest for five or ten minutes. On a bad day, she
can only pay attention for about ten minutes.
Plaintiff stated that she needs a routine to keep her seizures “in as much control as [she]
can.”
Missouri Supplemental Questionnaire
On October 25, 2008, plaintiff completed a Missouri Supplemental Questionnaire in
which she stated that she has not received any treatment since she filed her claim, but that she
5
had an appointment scheduled with Dr. Batchu on November 15, 2008, for her seizures (Tr. at
160-162). She reported that she uses her computer for about 30 minutes at a sitting.
Function Report Adult - Third Party
In a Third Party Function Report completed on October 25, 2008, plaintiff’s husband
stated that he had known plaintiff for 2 1/2 years, he operates a business out of their home
and plaintiff runs the house and helps out when she can (Tr. at 163-171). On good days,
plaintiff cooks, cleans, and helps with the administration of her husband’s business. On a bad
day, she sits in her chair having seizures. When she is experiencing a bout of seizures, she is
unable to function much beyond “yes” or “no” answers to questions. Plaintiff goes shopping at
least once a week for a “couple of hours.” Plaintiff reads almost daily and is in the process of
writing a book. Plaintiff visits her grandmother weekly and helps with the cooking.
According to her husband, plaintiff’s condition does not affect her ability to sit, nor does
it affect her memory. She can pay attention for two minutes to two hours, depending on the
day. She is able to finish what she starts, she can following written instructions “well”, she can
follow spoken instructions “quite well” unless it is close to a seizure, and changes in routine
adversely affect her condition.
B.
SUMMARY OF MEDICAL RECORDS
Plaintiff’s alleged onset date is December 16, 2006.
On January 10, 2007, plaintiff was seen at Evanston Northwestern Hospital
complaining of seizures (Tr. at 199-252). The triage nurse noted that plaintiff was making
“jerking motions” with both upper extremities and her trunk, but she was able to continue
answering questions without difficulty. Plaintiff was alert and oriented times three.1 Another
1
Mentally alert and oriented to person, place and time.
6
registered nurse observed that plaintiff walked to her room with a steady gait. Yet another
nurse noted that when she was inserting the IV into plaintiff’s hand, plaintiff was able to hold
her hand still even though all of her other limbs were jerking. Plaintiff continued to be alert
and oriented times three “the whole time” and was able to answer questions during her
“episodes” with no loss of bladder or bowel control. She was again observed walking to the
bathroom without assistance, and she had a steady gait with no dizziness.
Plaintiff said she last worked as an assistant manager in a photo studio and was fired
the end of November 2006 but did not know why (Tr. at 204). Plaintiff was well groomed,
alert and oriented times three, and her physical presentation was unremarkable “except for
some type of necklace that resembled a pet collar and chain.” Plaintiff was observed to have
no depression, no anxiety, no euphoria, no mania, and some mild hostility.
While she was there, plaintiff was evaluated by a social worker, Steven Cole, who wrote
the following:
Melissa McNamar [plaintiff’s name before her most recent marriage] is a 26 YO
divorced female who presents with symptoms of a seizure disorder. Symptoms have
been present for a few weeks which necessitated a medical hospitalization on
12/13/06.2 Today she presents again in the ED [emergency department] with
complaint of seizures beginning in the AM on 1/10 and continuing with increased
frequency until she came to ED [emergency department]. Precipitants include
unknown etiology. Patient reports that she has been under stress due to loss of job in
November and a custody battle regarding her daughter but states that the custody
situation is resolved and that in some ways she is feeling less stressed than she has for a
while.
(Tr. at 228-229). Her “current hospital medications” included only NaCI 0.9% intravenous,
which means normal saline used for fluid and electrolyte replenishment (Tr. at 229). She was
found to have “no evidence of Axis 1 psychiatric symptoms” (Tr. at 232).
2
There are no records in the administrative transcript of a hospital visit from December
2016.
7
Her discharge record includes the following:
Pt is a 26 yo female with a h/o [history of] migraines and a brain lesion dx [diagnosed]
on MRI that was unchanged as of 3 weeks3 ago who presents with convulsions
throughout the day. Pt states that convulsions began at 10:30 AM lasting about 15-20
seconds each, and occurring every 45-60 minutes. Pt dealt with them through the
whole day, but finally decided to come in tonight after the seizures increased in
frequency to every 1 minute or so. The duration of the convulsions decreased to about 5
secs each with no change in intensity. Pt states that right before she convulses, she feels
her skin tingling. Throughout the convulsion, she is unable to speak and states that her
surroundings become very fuzzy. Pt reports some disorientation afterwards, requiring
a moment to get situated again. She reports no LOC [loss of continence] no loss of
bowels, no tongue biting. Pt was in the hospital 3 weeks ago for a work up of this
problem. Pt was reviewed by neuro and received an MRI and EEG which were
unrevealing.4 Pt was d/c’ed [discharged] and was OK for about 1 week. The
convulsion[s] began again the following week, but only occurred occasionally until
today. It was recommended that patient follow up with her neurologist and a
psychiatrist however she did not follow through with either.
. . . Patient admits to some occasional alcohol use and to having smoked marijuana as a
teenager. . . .
Occupational History: Last worked as an assistant manager in a photo studio. Was fired
at the end of 11/06. States she doesn’t know why. . . . Patient stated that when she last
presented in December she was in the middle of a difficult custody situation regarding
her daughter but this is now resolved as the daughter has gone to live with her ex
husband. . . . Given the above the case was discussed with the ED [emergency
department] attending and the psychiatry attending. All were in concert that client did
not warrant admission and she was discharged with the same instructions as she was
[in December]. . . “Follow up immediately with your neurologist Dr. Rubin [whose
phone number was provided].”
3
No records of this hospital visit appear in the administrative transcript. The records from
this hospital visit include a “problem list” (Tr. at 226) which includes “psychosomatic seizure,
pseudoseizure” with a date of 12/14/2006; however, it is unclear whether plaintiff reported
this diagnosis or whether medical records reflecting this were available to these treating
doctors in January 2007. Psychosomatic or pseudoseizures, also called psychogenic
nonepileptic seizures (“PNES”), are paroxysmal episodes that resemble and are often misdiagnosed as epileptic seizures; however, PNES are psychological (i.e., emotional, stressrelated) in origin.
4
Again, these test records are not a part of the administrative transcript.
8
Plaintiff’s assessment was “R/O [rule out] Somatoform Disorder5,” seizure disorder,
history of migraines, problems with primary support group, occupational problems, and
relationship difficulties, and she was assigned a GAF of 60.6
Thirteen months later, on February 4, 2008, plaintiff was seen at Pottsville Hospital in
Pottsville, Pennsylvania, because she experienced two grand mal seizures that night (Tr. at
254-264). She had no oral injury and no incontinence but she reported numbness in her right
hand and leg, limited movement in her right arm and no ability to move her right leg. She was
observed to have no facial droop and no slurred speech. Plaintiff reported having taken
Topomax in the past for migraine headaches but no medication for seizures. The only thing
she had taken before coming to the hospital was Advil. She said she thought she had seizures
when her blood sugar was low. Multiple CTs of plaintiff’s head were normal (Tr. at 259, 263).
Her blood work was normal (Tr. at 261-262). Plaintiff was discharged with no limitations (Tr.
at 258).
On March 13, 2008, plaintiff was seen at the Geisenger Medical Center in Danville,
Pennsylvania, for a neurological consultation with Robert Felberg, M.D. (Tr. at 265-266).
She states that these were stereotypical and have occurred at least 50 or 60 times if not
more since they first started. They begin with her feeling a prodrome of a haziness or
fogginess. She also gets a skin crawling sensation over both arms and both legs. She
will then become pale and sort of tunes out.
5
Somatoform disorders represent a group of disorders characterized by physical symptoms
suggesting a medical disorder. However, somatoform disorders represent a psychiatric
condition because the physical symptoms present in the disorder cannot be fully explained by a
medical disorder, substance use, or another mental disorder. These somatoform disorder
physical complaints challenge medical providers who must distinguish between a physical and
psychiatric source for the patient’s complaints.
6
A global assessment of functioning of 51 to 60 means moderate symptoms (e.g., flat affect
and circumstantial speech, occasional panic attacks) or moderate difficulty in social,
occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).
9
This is then followed by a right leg tremor and jumping that spreads to the left leg and
then to the upper body. They last for about 15 seconds. She has no incontinence, no
tongue biting. She can remember conversations that occur during it, but she is not
conversant during the spells.
After these spells, she feels a little spacey afterwards but is otherwise normal. The spells
tend to cluster in that she will have multiple spells in 1 day. They also seem to occur in
and around her menstrual period. She usually has 2 or 3 per month, but she can go
months without spells.
In the beginning of February, she had a difference in her event. She had her normal
spells, but then following it she was unable to move the right arm and right leg for
about 1 hour. She was seen at an outside emergency department, and a CT scan was
performed without any changes.
She now comes to me.
ASSESSMENT: This is a 27-year-old woman who has a normal physical examination.
She comes in with complaints of spells. It is unclear what these spells represent. The
description of them going from one leg to the other and then the upper body seems a
little peculiar. She also has no true loss of consciousness, which would be unusual for
generalized seizures.
Dr. Felberg decided not to send plaintiff to the epilepsy specialist and instead decided to
send her to another neurologist and have an EEG and an MRI done.
On March 17, 2008, plaintiff was seen at the Geisenger Medical Center in Danville,
Pennsylvania, for an EEG (Tr. at 267). The result was normal, but the record includes the
statement that a normal EEG does not rule out epilepsy. “If epilepsy is clinically suspected, a
repeat tracing achieving a deeper level of sleep may be of further value in assessing this
patient.”
On April 4, 2008, plaintiff saw Mark Lentz, M.D. (Tr. at 268). “I met with and
examined this patient with Dr. Obradovic. We discussed this case in detail. I reviewed the
documentation. . . . Ms. Morley has a well localized low back pain, with associated spasm but
no radiation. I agree with an initial trial of non-opioid analgesics and an antispasmodic. In
addition, she may benefit from PT [physical therapy] especially with her frequent lifting as
10
required by her job.” According to plaintiff’s testimony and her earnings record, plaintiff had
not worked for the past 16 months.
On that same day, plaintiff had an MRI of her brain (Tr. at 276-277). Findings
indicated the possibility of myelination;7 however, Oleg Bronov, M.D., who interpreted the
MRI, indicated that other findings on the MRI were atypical for delayed myelination. Another
cause could be migraines. “Otherwise, unremarkable MRI scan of the brain.”
On April 6, 2008, plaintiff saw Gordiana Obradovic, M.D., for a follow up (Tr. at 268270). Plaintiff reported one recent migraine but said she used Advil and that helped. “No
new symptoms of her migraine.” Other than back pain, plaintiff had no other complaints.
Plaintiff was still smoking one pack of cigarettes per day. Plaintiff said she had no depression
and no joint problems. She had no tenderness and no muscle spasm in her back. “Patient
states that she did have pain with SLR [straight leg raising] at 45 degrees, not noted on exam.”
Plaintiff was alert and oriented times three, she was fluent speech, no focal motor/sensory
deficits, her gait was normal, her reflexes were normal and symmetric. At the end of the visit,
plaintiff requested medication for lower back pain, specifically Flexeril (a muscle relaxer) and
Vicodin (a narcotic). Dr. Obradovic did not want to give plaintiff a narcotic for her back pain,
which upset plaintiff. “Patient works as a photographer, usually lift[ing] up to 30-40 pounds,
and has back pain with that. She exercises regularly, she does swimming. Pain medications
help”. Dr. Obradovic offered plaintiff extra-strength Tylenol, but plaintiff refused. Dr.
Obradovic advised plaintiff to stop smoking and offered her a Nicotine patch. “She is not
willing to try.”
7
Myelin is a whitish fatty substance that acts like an electrical insulator around certain
nerves in the peripheral nervous system. It is thought that the loss of the myelin surrounding
the vestibular nerves may influence the development of Ménière’s disease.
11
On May 12, 2008, plaintiff had a pelvic ultrasound during which a left ovarian cyst
was observed (Tr. at 253). No medications were prescribed.
On May 22, 2008, plaintiff was seen by Mark Stecker, M.D., a neurologist (Tr. at 271272). In reviewing her history of seizures, he noted that she had never been given medication.
Plaintiff denied psychiatric problems. She said that her current medications included Vicodin;
however, the previous month Dr. Obradovic refused to prescribe Vicodin and there is no other
record showing that another doctor prescribed that narcotic. Plaintiff was smoking a pack of
cigarettes per day. She reported that she was “writing fiction.” Dr. Stecker wrote:
ASSESSMENT/PLAN:
1. Events -- I am not sure what they are. . . . After discussion let’s do ambulatory EEG.
Call after the test for discussion. . . . Please send a copy of this report to the patient’s
PCP [primary care physician]. I feel that the current neurologic medications can be
appropriately renewed and refilled by the Primary Care Provider.
On June 12, 2008, plaintiff had a CT scan of her pelvis in connection with her ovarian
cyst and abdominal pain after her tubal ligation (Tr. at 278-279).
On June 23, 2008, plaintiff had an EEG which was normal (Tr. at 273).
On July 24, 2008, plaintiff had laparascopic surgery to drain an ovarian cyst (Tr. at
274-275, 294-296). Her medications included Neurontin [treats seizures] and Flexeril
[muscle relaxer]. Plaintiff was asked whether she was experiencing any pain, and she said,
“no.” She was asked whether she had a history of falls, and she said, “no.” She was asked if
any of her medications make her lightheaded or dizzy. She said, “no.”
On October 21, 2008, plaintiff saw Michael Griswold, M.D., to establish care (Tr. at
317). Plaintiff said she has a history of seizures and needed a referral to a neurologist.
Plaintiff’s physical exam was normal. She was assessed with seizures, tobacco abuse, and
migraines.
12
On November 15, 2008, plaintiff had a neurological consult with Sudhir Batchu, M.D.
(Tr. at 280-281, 301-302, 316).
History: This is a 28-year-old left-handed Caucasian female with history of seizures
starting in December 2006, seen for above reason. The patient apparently started
having seizure[s] on December 2006 with [a] cluster of seizures that occurred 30 in
number in a matter of one and a half hour[s]. She was in Illinois at that time and was
taken to the hospital in Evanston, Illinois. Apparently the workup at that time was
completely normal. Since the past September she had one seizure per day for about 14
days. She was started on Neurontin [treats seizures] that helped for a while, but still
having breakthrough seizures. In February 2008 she had an episode of paralysis on
one side. During the seizures she gets disoriented and then will have a body shake. She
does get muscle aches afterwards. Each seizure lasted about 10-12 seconds. She had
repeat workup in Pennsylvania when she had ambulatory EEG that was also reported to
be normal. Recently she started having headaches. She had a history of seizures prior
to that and was diagnosed to have migraine at the rate of one per week. MRI of the
brain in Pennsylvania showed mild white matter disease particularly in the occipital
area. She was tried on Topamax [treats seizures] up to 200 mg per day that was
stopped suddenly and was placed on Wellbutrin [treats depression] prior to the onset of
the seizures in December 2006. She had a full workup for multiple sclerosis including
spinal tap that was completely negative. She had a three day ambulatory EEG but no
electroconvulsive seizures on the three day ambulatory EEG when she had a few spells.
She was noted to have some nail bed vascular problems by Dr. Griswold and was
placed on enteric coated aspirin. Her rheumatoid factor was negative.
Past Medical and Surgical History: Degenerative joint disease, headaches, seizures.
Medications: Neurontin 800 mg twice a day and enteric coated aspirin one tablet once
a day.
Social History: The patient is apparently a writer. One year college education. Smokes
about a pack of cigarettes per day. Occasional alcohol abuse . Denies any drug abuse.
She is single with one 9-year-old daughter. She has a live-in fiancé.
*****
Physical Exam:
. . . Mental status: The patient is alert and oriented x3. Mood is good. Affect is normal.
No speech or language dysfunction. . . . Gait: Normal. Coordination: Intact.
Impression:
1.
Seizures versus pseudoseizure. Initial seizure in December 2006 probably
related to Topamax withdrawal and Wellbutrin.
2.
Right hemihypesthesia8 of uncertain etiology.
8
Diminished sensitivity on one side of the body.
13
3.
Apparent white matter disease9 in occipital area of the brain of uncertain
etiology.
Plan:
1.
We need to repeat MRI of the brain and EEG and may consider sleep deprived
EEG if needed.
2.
I reviewed her available records from Illinois and Pennsylvania and the
available ambulatory EEG report.
3.
Continue Neurontin, but increase dose to minimum of 1800 mg per day.
4.
Repeat lab workup.
5.
Follow up after the above for further management.
On December 18, 2008, plaintiff saw Debra King, M.D., for head congestion and lower
back pain (Tr. at 314-315). She described her pain a 6 out of 10. Plaintiff continued to smoke.
[S]he has also had some chronic & recurrent back pain. Pt states that the back pain
some days is worse than others; typically worse on the L side than R side. It
occasionally goes down the L leg to the knee. She had a CT scan or an MRI performed
in early summer in Pennsylvania, of which she thought the results would have been
here by now. She states that they said that she had some DDD [degenerative disc
disease]. She has tried PT [physical therapy], which was not beneficial for her.10 She
states she is not on any regular medication for it at this time, but feels like she needs
something. CURRENT MEDICATIONS: Noted in chart; her only medications for her
seizure disorder including Neurontin, of which she is taking regularly w/o difficulties.
. . . Exam of her back today; Pt localizes her pain as being primarily over the central
area of the lumbar spine in the L-3 to L-5 region. She had minimal spasm of the
paraspinous musculature. No palpable, soft tissue masses. She did not have any
reproducible tenderness to palpation over the SI-joints & had fairly normal ROM [range
of motion] of the lower lumbar spine w/flexion, extension & lateral rotation. She had
negative straight leg raises of the LE [lower extremities] & denied any leg pain today.
Motor & sensory testing of the LEs today seemed grossly WNL [within normal limits].
Dr. King assessed history of persistent low back pain and bronchitis “in a Pt
w/underlying seizure disorder.”
Discussed w/Pt today before making further recommendations we really would like to
get a copy of her CT scan to review to see if the DJD/DDD [degenerative joint
9
Diffuse ischemic white matter disease impairs executive functioning, information
processing speed, and gait.
10
There is no record of plaintiff having participated in physical therapy in this
administrative transcript.
14
disease/degenerative disc disease] correlates w/any of her symptoms. Pt will sign
another release and will contact the hospital in Pennsylvania & once test results are
known will get back to her. In addition, today Pt was concerned about her weight gain,
which she states is partially due to inactivity due to her back pain. Again, will defer &
get a copy of her blood work already done this year in terms of thyroid testing & blood
sugar testing & will make recommendations once those results are known.
On January 28, 2009, plaintiff saw Debra King, M.D., to discuss an exercise plan to
help with her back pain (Tr. at 312-313). She continued to smoke. She was taking Darvocet
(a narcotic) daily “and that does seem to be working well for her.” Plaintiff had purchased an
exercise ball and wanted to do some kind of gentle stretching with it. “She states that she is
still having pain occasionally in her low back or going down the legs, but not very far down.
She states she has been sleeping well & otherwise doing well. She is not having any sedation
w/the Neurontin, but has still not been able to lose any weight on it.” Plaintiff’s exam was
essentially normal. She had some mild tenderness over her sacroiliac joints, no point
tenderness over the lower lumbar spine. She was assessed with “persistent low back pain; CT
scan last summer showing some Schmorl’s nodules,11 but no other significant pathology.”
Dr. King told plaintiff to do gentle stretching; and she gave samples of Skelaxin, a
muscle relaxer. She also provided samples of Darvocet, a narcotic. “I do think that regular
exercise & stretching will make the biggest difference and will await to see how patient
responds.”
On January 29, 2009, plaintiff saw Dr. Batchu (Tr. at 300). The one-page record is
almost entirely illegible. It appears to say that plaintiff was still having side effects with
Neurontin. The record says “break through seizures” but I cannot tell whether plaintiff
reported having them or not having them. Plaintiff reported that her seizures involved full
11
An irregular or hemispherical bone defect in the upper or lower margin of the body of a
vertebra.
15
body shaking, difficulty understanding, no communication. Her physical exam was completely
normal. Dr. Batchu assessed “Idiopathic seizures versus pseudo seizures” and he changed her
dosage of Neurontin.
On March 10, 2009, plaintiff saw Dr. Batchu (Tr. at 299). She said Depakote was not
working, was giving her mood swings and an upset stomach although her spells were better
and with less frequency. Her physical exam was normal; she had normal extremity
coordination and normal gait. She was assessed with “apparent seizure disorder.” Dr. Batchu
gave plaintiff a trial of a medication that is illegible.
On March 18, 2009, plaintiff saw Amber Backes, a nurse practitioner, complaining of
low back pain (Tr. at 311). She rated her pain a 4 out of 10. Plaintiff reported tingling and
numbness. She denied loss of memory, sleep problems, depression or any other psychiatric or
mood problems. Her exam was normal. Nurse Backes assessed persistent bronchitis (plaintiff
continued to smoke) and pelvic pain. Plaintiff declined a PAP smear, and although an
ultrasound was recommended, she declined that, saying she had to pay for it herself. Plaintiff
was given a prescription for Doxycycline, an antibiotic.
On April 7, 2009, plaintiff saw Debra King, M.D., to discuss pain therapy for her back
(Tr. at 309-310). She said she had been tried on Neurontin and Darvocet but those have not
made a significant difference. She has also used non-steroidal anti-inflammatories. She
described her back pain a 6 1/2 out of 10.
Pt states that she also has been having some intermittent seizures. Her neurologist now
has tried her on Tranxene 3.75 mg t.i.d. [three times per day]. She states when she does
have her seizures that they tend to cause her to arch her back in a fetal position & then
that seems to aggravate her symptoms. She was wondering if there was anything that
could be done about that.
On exam plaintiff had spasm over her paraspinous musculature, minimal tenderness
over the sacroiliac joints, fairly normal range of motion of the lumbar spine and hips. She had
16
positive straight leg raising12 on the right side. She appeared to have some mild weakness of
the quadricips and hamstrings and “slightly” diminished sensation to light touch over L4-5.
Plaintiff was assessed with a history of ongoing low back pain with radicular symptoms. “Will
see if pt can qualify for charitable funds. If so would like to schedule for an MRI of the lumbar
spine & flexion and extension x-rays. Until then will try her on a Medrol Dose-Pak [a steroid
that prevents inflammation]. She will continue her Tranxene, as prescribed by her neurologist
for her seizure disorder.
On May 7, 2009, plaintiff had an MRI of her lumbar spine due to complaints of low
back and bilateral leg pain (Tr. at 308). Patricia Macfarlane, M.D., observed minimal disk
bulge at T11-T12 with mild narrowing. It was recommended that x-rays be taken of that area
to see if it affects her alignment.
On May 11, 2009, plaintiff had 5 x-rays of her lumbar spine (Tr. at 305). Only mild
degenerative changes consistent with spondylosis13 were noted. She also had an x-ray of her
12
During the straight leg raising test, the patient lies down on a table and the doctor will lift
the patient’s straightened leg into the air. If the patient feels pain that travels down his leg
when it is lifted to the 30° to 70° range, then the straight leg raise test is considered positive.
That pain should replicate what the patient would describe as his typical leg pain. The
radiating leg pain is called sciatica, among the most common and painful symptoms of a
lumbar herniated disc. A straight leg raise test is used to help diagnose a lumbar herniated disc
because the simple act of raising one’s leg stretches the spinal nerve root. If the patient has a
lumbar herniated disc, it should press on the stretched nerve root as his leg is raised above 30°.
If the doctor does a straight leg raise test and the patient has pain before his leg is at 30°, then
it probably is not a herniated disc pressing on the nerve. Before 30°, the nerve root is not
stretched, and it is the nerve root stretching in the straight leg raise test that brings the nerve
closer to the herniated disc (if there is one). Therefore, pain before 30° means that there is
something else besides a herniated disc pressing on the nerve. In this case, Dr. King did not
indicate at what degree the test caused plaintiff’s pain.
13
Lumbar spondylosis describes bony overgrowths (osteophytes) of vertebral bodies. Lumbar
spondylosis usually produces no symptoms. When back or sciatic pains are symptoms, lumbar
spondylosis is usually an unrelated finding. In fact, someone wrote on the medical record that
“X-rays of lower thoracic spine are normal.” (Tr. at 306).
17
thoracic spine which showed only mild degenerative changes and no acute abnormalities (Tr.
at 306). Additionally she had x-rays of her lumbar spine during flexion and extension, and
those were normal (Tr. at 307).
C.
SUMMARY OF TESTIMONY
During the February 25, 2011, hearing, plaintiff testified; and Margaret Kelsey, a
vocational expert, testified at the request of the ALJ.
1.
Plaintiff’s testimony.
At the time of the hearing, plaintiff was 30 years of age (Tr. at 30). She has a high
school education and one year of college with a certified nursing certificate (Tr. at 30). She
last worked in that capacity in 2004 (Tr. at 30).
Plaintiff is 5'1" tall and weighs 160 pounds (Tr. at 30). Plaintiff’s alleged onset date is
December 16, 2006, because on that date her seizures lasted for four or five hours before she
realized what was going on (Tr. at 30). Her daughter, who was seven years old at the time,
was very concerned about the seizures (Tr. at 30). Plaintiff has not worked since then (Tr. at
31).
Plaintiff cannot work full time because she cannot get her seizures under control (Tr. at
31, 38). She can have two or three episodes in a week and then go several weeks without one
before they come back again (Tr. at 31). Her entire body shakes, she stays conscious, her
perception of reality is altered, she does not always know exactly what time it is or where she
is, and it is very difficulty to answer questions coherently (Tr. at 31). Plaintiff thought the
beginning of her period triggered the seizures, but sometimes they come out of the blue (Tr. at
31). Plaintiff’s seizures last about 40 seconds, but a full episode can last up to four or five
hours (Tr. at 31-32). After a bad seizure, she will be paralyzed on the right side (Tr. at 32).
Other times she is incredibly tired and she spends most of the time lying down resting (Tr. at
18
32). During an average month, plaintiff can have 12 to 15 seizures (Tr. at 32). The seizures
come in clusters, and she can have about three “episodes” a month (Tr. at 32).
Plaintiff has been on several different medications all of which have worked for only a
month or two (Tr. at 32-33). When she has break-through seizures and her medication dose
is increased, plaintiff has intolerable side effects and has to try a new medicine (Tr. at 33).
With one drug plaintiff could not sleep; with another she was so foggy she could not function
during the day -- she could not think clearly, could not communicate, could barely remember
how to tie her shoes (Tr. at 33). Plaintiff is not taking any medication for her seizures -- she
said her prescription ran out and she does not have the money to see her doctor to get a new
prescription (Tr. at 33). Plaintiff has not taken any medication for seizures in “just over a
year” (Tr. at 37). She estimated that she has had 24 to 30 “episodes” during the last year (Tr.
at 37).
Plaintiff also suffers from migraine headaches (Tr. at 33). She has had them since she
was 15 or 16 but was diagnosed in 2003 (Tr. at 33). At the time of the hearing it had been a
month and a half since her last migraine, but sometimes she has them about once a week (Tr.
at 33). Her migraines last three weeks (Tr. at 34). The ALJ commented that this did not make
any sense and asked plaintiff to explain (Tr. at 37). “I have some migraines that will last for
three weeks straight, and I have other episodes, other migraines that will last for about 72
hours, decrease in intensity and then increase.” (Tr. at 37). Although her medical records do
not reflect complaints of migraine headaches, plaintiff said in the past she did report them (Tr.
at 37). She takes only Naproxen for her migraines (Tr. at 37).
Plaintiff suffers from a degenerative back condition that causes extensive pain in her
lower back (Tr. at 34). When she is sitting, the pain can range from annoying to excruciating;
when she stands she can also have problems with the pain (Tr. at 34). It causes her hips to
19
dislocate slightly so she has trouble walking (Tr. at 34). Plaintiff can only sit for about 45
minutes (Tr. at 34). Some days standing for 20 minutes to do the dishes causes her pain; when
it is humid she can only walk for about 30 minutes (Tr. at 34). Plaintiff’s back pain limits her
lifting, and she has difficulty vacuuming because of the pushing and pulling involved (Tr. at
36). Plaintiff can lift about ten pounds (Tr. at 36).
On a “seizure day,” plaintiff cannot do anything but lie around (Tr. at 35). Plaintiff
lives in a mobile home with her husband (Tr. at 35). She has one daughter (age 11) who lives
with plaintiff’s ex-husband (Tr. at 35). Although plaintiff was ordered to pay child support,
that order has been suspended due to her disability (Tr. at 35). Plaintiff married her current
husband in January 2007 (Tr. at 35).
Plaintiff’s driver’s license was suspended due to her seizures (Tr. at 35-56). She has to
go six months without a seizure before she is eligible to get her license back (Tr. at 36).
Since her alleged onset date, plaintiff has tended to get anxious if anything changes in
her routine (Tr. at 36). “My history has proven that if my routine changes, I am almost
guaranteed to have a seizure.” (Tr. at 36). This causes increased anxiety, and she is also
anxious about going out in public because she does not want to have a seizure in public (Tr. at
36).
No doctor has ever placed any restrictions on plaintiff’s activities (Tr. at 36-37). She
can use a computer (Tr. at 37). Plaintiff had not been to any doctor in the two years prior to
the administrative hearing (Tr. at 37-38). Plaintiff’s husband works as an asset protection
officer for Wal-Mart (Tr. at 38). Plaintiff testified that although her husband works, they
cannot afford to buy health insurance (Tr. at 38). Plaintiff has not gone to any emergency
room or hospital clinics (Tr. at 38).
20
2.
Vocational expert testimony.
Vocational expert Margaret Kelsey testified at the request of the Administrative Law
Judge. The first hypothetical involved an individual who can lift 20 pounds occasionally and
ten pounds frequently; stand or walk for six hours per day; sit for six hours per day; should
never climb ladders, ropes, or scaffolds; and should avoid hazards such as unprotected
machinery and heights (Tr. at 41). The vocational expert testified that such a person could be a
lab assistant, phlebotomist, photographer or studio manager, all past relevant jobs held by
plaintiff (Tr. at 41).
The second hypothetical was the same as the first except the person would miss two to
three days of work per month due to various medical conditions (Tr. at 42). The vocational
expert testified the such a person could not work (Tr. at 42).
V.
FINDINGS OF THE ALJ
Administrative Law Judge Eleanor Moser entered her opinion on March 14, 2011 (Tr.
at 10-20). She found that plaintiff met the insured status requirements through December 31,
2011 (Tr. at 12).
Step one. Plaintiff has not engaged in substantial gainful activity since her alleged onset
date (Tr. at 12).
Step two. Plaintiff’s severe impairments include seizures and back problems (Tr. at 12).
Step three. Plaintiff’s impairments do not meet or equal a listed impairment (Tr. at 12).
Step four. Plaintiff’s subjective allegations of disabling symptoms are not credible (Tr.
at 14-19). She retains the residual functional capacity to perform light work except she can lift
20 pounds occasionally and ten pounds frequently; stand and/or walk six hours per day; sit for
two hours per day; may never use ladders, ropes, or scaffolds; and should avoid all exposure to
hazards such as machinery and heights (Tr. at 13). With this residual functional capacity,
21
plaintiff can perform all of her past relevant work which includes certified nurse aid, lab
assistant, phlebotomist, medical assistant, photographer, manager studio photography, and
truck loader (Tr. at 19).
VI.
CREDIBILITY OF PLAINTIFF
Plaintiff argues that the ALJ erred in finding that plaintiff’s testimony was not credible.
A.
CONSIDERATION OF RELEVANT FACTORS
The credibility of a plaintiff’s subjective testimony is primarily for the Commissioner to
decide, not the courts. Rautio v. Bowen, 862 F.2d 176, 178 (8th Cir. 1988); Benskin v.
Bowen, 830 F.2d 878, 882 (8th Cir. 1987). If there are inconsistencies in the record as a
whole, the ALJ may discount subjective complaints. Gray v. Apfel, 192 F.3d 799, 803 (8th Cir.
1999); McClees v. Shalala, 2 F.3d 301, 303 (8th Cir. 1993). The ALJ, however, must make
express credibility determinations and set forth the inconsistencies which led to his or her
conclusions. Hall v. Chater, 62 F.3d 220, 223 (8th Cir. 1995); Robinson v. Sullivan, 956 F.2d
836, 839 (8th Cir. 1992). If an ALJ explicitly discredits testimony and gives legally sufficient
reasons for doing so, the court will defer to the ALJ’s judgment unless it is not supported by
substantial evidence on the record as a whole. Robinson v. Sullivan, 956 F.2d at 841.
In this case, I find that the ALJ’s decision to discredit plaintiff’s subjective complaints is
supported by substantial evidence. Subjective complaints may not be evaluated solely on the
basis of objective medical evidence or personal observations by the ALJ. In determining
credibility, consideration must be given to all relevant factors, including plaintiff’s prior work
record and observations by third parties and treating and examining physicians relating to
such matters as plaintiff’s daily activities; the duration, frequency, and intensity of the
symptoms; precipitating and aggravating factors; dosage, effectiveness, and side effects of
medication; and functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
22
1984). Social Security Ruling 96-7p encompasses the same factors as those enumerated in the
Polaski opinion, and additionally states that the following factors should be considered:
Treatment, other than medication, the individual receives or has received for relief of pain or
other symptoms; and any measures other than treatment the individual uses or has used to
relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20
minutes every hour, or sleeping on a board).
The specific reasons listed by the ALJ for discrediting plaintiff’s subjective complaints of
disability are as follows:
Why would the claimant give a more accurate description of [her] symptoms to the
undersigned than to [her] treating physicians? The undersigned has nothing to offer to
ameliorate these complaints; whereas the doctors may. If anything the reverse should
occur. The more accurate description should appear in the medical records.
When complaints are absent from the medical record or when the medical records do
not reflect the same degree of severity or frequency, it is reasonable to assume one of
two things. Either the claimant did not tell the doctors about these symptoms, their
severity and their frequency, or the doctors deemed such complaints insignificant.
Either conclusion undermines the credibility of the claimant’s testimony. The claimant
further testified she had spells on an irregular basis, and that stress, weather and issues
with her family would cause her to have seizures. At this time the undersigned can find
no new medical records since May 2009, and there are no new objective medical tests
performed by physicians; so the claimant[’s] allegations that she cannot work [are not]
supported by the medical evidence of record.
If the claimant’s pain is not severe enough to motivate her to seek treatment (or to
follow her doctor’s advice), it becomes more difficult to accept her assertion that her
pain is disabling and prevents her return to any and all work. The claimant stated she is
taking Naproxen for pain, which is an over-the-counter medication. Moreover, the
claimant[’s] exaggerated statements and lack of objective medical evidence of record
causes the undersigned to question her credibility.
The record does not contain any opinions from treating physicians that identify any
subjective or objective medical findings to support a conclusion indicating that the
claimant is disabled or even has limitations greater than those determined in this
decision. Given the claimant’s allegations of totally disabling symptoms, one might
expect to see some indication in the treatment records of restrictions placed on the
claimant by the treating doctor. Yet a review of the record in this case reveals no
restrictions recommended by a treating doctor. The claimant testified at the hearing her
doctor has not placed any restrictions on her. During the past years since May 2009,
23
there have been no new medical records scanned into the electronic files. The
undersigned finds such a lack of new medical records further erodes her reliability as a
fact witness. . . .
. . . . The undersigned has concluded the claimant has failed to show the seriousness of
her claim[] by failing to provide more medical evidence from any source which the
claimant has visited. Such a failure would then lead the undersigned to see the
claimant’s credibility [is] eroded significantly.
(Tr. at 17-18).
Plaintiff argues that the ALJ discredited plaintiff’s testimony after misinterpreting the
medical records and being “short and vague” in her analysis. Plaintiff also argues that
“Contrary to the ALJ’s statement, Ms. Morley’s statements to her doctors seem consistent with
what was in her testimony.” This is hardly how I read the record.
1.
PRIOR WORK RECORD
The medical records establish that plaintiff reported that she was fired from her last job
in November 2006. This is before her alleged onset date and also establishes that plaintiff
stopped working due to being fired, not because of any physical or mental impairment.
Additionally, plaintiff’s husband said plaintiff was helping him with the administration of his
business which was run out of their home. He also said plaintiff was writing a book. Over the
years plaintiff reported to her doctors that she was working -- in April 2008 she said she was
working as a photographer and even indicated how many pounds she lifted at her job. This
suggests that plaintiff either (1) lied to her doctors in order to get the kind of treatment or
medication she desired, or (2) she was working and not reporting her earnings. Either
conclusion supports the ALJ’s finding that plaintiff’ testimony is not credible. In May 2008 she
told her doctor that she was writing fiction, in October 2008 she told her doctor that she is a
writer.
24
The reason for plaintiff leaving the workforce is unrelated to her impairments. Her
description of her employment over the years to her doctors belies her allegation that she
cannot work. The first Polaski factor supports the ALJ’s finding.
2.
DAILY ACTIVITIES
According to the record, plaintiff prepares meals for 30 minutes to two hours, she
cleans, she does laundry, she washes dishes, she shops for a few hours at a time every week,
she reads, she writes, she watches television, she plays the guitar, she makes candles, she
paints, she goes shooting, she helps her grandmother cook once a week, she uses her computer
for 30 minutes at a time, and she helps with the administration of her husband’s business. In
April 2008 she told her doctor she was working as a photographer, exercising regularly, and
swimming. These daily activities do not support plaintiff’s tesetimony.
3.
DURATION, FREQUENCY, AND INTENSITY OF SYMPTOMS
Plaintiff testified that she cannot get her seizures under control; however, she had not
been on any medication for more than a year. Plaintiff testified that during a seizure she does
not always know exactly what time it is or where she is, yet every time she was at a hospital
supposedly having a seizure, she was observed to be alert and oriented to person, time and
place. Plaintiff testified that it is very difficult for her to answer questions coherently during a
seizure and she told Dr. Felberg that she is not conversant during a seizure; however, every
medical professional who questioned plaintiff during a seizure observed that she had no
difficulty answering questions while her limbs and trunk were shaking. Plaintiff testified she
can be paralyzed on her right side after a seizure; however, this was not reported to any
doctors and no medical professional ever observed paralysis after plaintiff had one of her
episodes in their presence.
25
Plaintiff testified that during a seizure she needs help going to and from the toilet;
however, when plaintiff was at the hospital supposedly having a seizure, nurses observed that
while sitting, her legs were shaking, but she was able to walk unassisted to her room and to the
bathroom with a steady gait. When a nurse put an IV in plaintiff’s hand, her hand stopped
shaking but her other limbs continued to shake. This strongly suggests that plaintiff was either
faking the seizure or greatly exaggerating the “shaking” part of her seizure.
Plaintiff went well over a year without seeing any doctor -- nearly the entire year of
2007 and the beginning of 2008 -- suggesting that the duration, frequency and intensity of
her condition was not disabling. By May 22, 2008 -- a year and a half after plaintiff’s alleged
onset date -- Dr. Stecker noted that plaintiff had never been on any medication for seizures,
suggesting that the duration, frequency and intensity of her symptoms was not that bad.
In May 2008 she denied any psychiatric problems. In July 2008 she said she was not
experiencing any pain. In March 2008, plaintiff denied sleep problems, loss of memory,
depression, or any other psychiatric or mood problems.
This factor supports the ALJ’s credibility finding.
4.
PRECIPITATING AND AGGRAVATING FACTORS
Plaintiff claimed that low blood sugar, her menstrual period, or a change in routine
cause her seizures. There is no evidence of any of this.
5.
DOSAGE, EFFECTIVENESS, AND SIDE EFFECTS OF MEDICATION
As mentioned above, plaintiff went a year and a half after her alleged onset date
without being prescribed any medication at all for seizures.
In April 2006, plaintiff told Dr. Obradovic that she had had one recent migraine and
took Advil for that which helped. She had no new migraine symptoms, and she had no pain
complaints other than her back. She specifically denied joint pain and depression. Plaintiff
26
told Dr. Obradovic that she had had a positive straight leg raising test; however, Dr. Obradovic
noted that it was not positive on her exam. In fact, her exam was normal with no back
tenderness or muscle spasm. Plaintiff specifically requested a narcotic, refused extra-strength
Tylenol, and got upset with the doctor when she was told she would not get a narcotic
prescription. Dr. Obradovic did not believe that plaintiff’s pain required a narcotic.
In July 2008 plaintiff said that none of her medication caused dizziness or
lightheadedness. In December 2008 she told Dr. King that she was taking Neurontin without
any difficulties. Five weeks later, on January 28, 2009, she told Dr. King she was sleeping well
and was doing well other than occasional back pain, indicating her medication was working
well. Curiously, the very next day, on January 29, 2009, she told Dr. Batchu that Neurontin
was giving her “side effects,” although none were specified; and she also told him that she was
having break-through seizures, which contradicts what she told Dr. King the day before.
Despite the “side effects,” Dr. Batchu kept her on Neurontin.
This factor supports the ALJ’s finding.
6.
FUNCTIONAL RESTRICTIONS
It is undisputed that no doctor has ever put plaintiff on any restrictions. The record
does not reflect that plaintiff has any functional restrictions.
Plaintiff claimed in her Functional Report that on a bad day she can only pay attention
for ten minutes. However, she reads every day, she is writing a book, she works on her
computer for 30 minutes at a time, she can shop for several hours at a time, she cooks for 30
minutes to two hours at a time, she helps her grandmother with cooking, according to her
husband she is able to start what she finishes and follows instructions well, her husband said
her condition does not affect her memory. Well over a year after her alleged onset date, she
was released from the emergency department with no limitations. More than two years after
27
her alleged onset date, Dr. King said that regular exercise and stretching would make the
biggest difference in her condition.
As the ALJ noted, plaintiff’s physical and mental exams were consistently normal. After
her first visit to the hospital reporting seizures (when multiple medical professionals observed
that plaintiff could easily answer questions, walk without difficulty, and hold her hand still for
an IV insertion while her limbs and body were shaking), plaintiff was discharged with no
medication, no restrictions, and a belief that her symptoms were psychological. Thirteen
months later, her exam in a Pennsylvania hospital was completely normal. In October 2008,
her physical exam was normal and a mental status exam was normal. In March 2008,
plaintiff denied sleep problems, loss of memory, depression or any other psychiatric or mood
problems. Plaintiff’s husband stated that plaintiff’s condition does not affect her ability to sit.
There simply is nothing in the record to support plaintiff’s allegation of disabling functional
limitations.
B.
CREDIBILITY CONCLUSION
In addition to the above factors, I note that plaintiff told Dr. Batchu that she had been
diagnosed with migraines at the rate of one per week. There is no such diagnosis in the record
before me. She told Dr. King that she had been diagnosed with degenerative disc disease.
Again, there is no such diagnosis in the record. Plaintiff told a doctor she had tried physical
therapy and it had not worked. The record establishes that plaintiff’s doctor recommended
physical therapy, but there is no evidence before me that she actually tried it. Although
plaintiff testified that she had migraines once a week and that they last for three weeks (even
after her explanation, I agree with the ALJ that this makes no sense), the medical record does
not support a finding that plaintiff suffers from migraines other than maybe once in a great
while.
28
She told a social worker that she had a history of migraines, so his assessment included
history of migraines. She did not have a migraine or a complaint of migraine when she came in
for treatment. More than a year later, she told the doctor at the Pottsville Hospital that she had
previously taken Topomax for migraines. She had no complaint of migraines during that visit.
Dr. Bronov indicated that the minor findings on plaintiff’s brain MRI could be due to
migraines, but he did not assess migraines. In April 2008, she reported that she had had one
recent migraine for which she took Advil and that worked well. Dr. Griswold -- on the first
time he saw plaintiff -- diagnosed migraines only because plaintiff told him she had a history
of migraines. She was there to establish care and did not complain of a migraine. And finally,
she told Dr. Batchu that she had been diagnosed with a history of migraines at the rate of one
per week. However, the record establishes that plaintiff never went to the doctor because of a
migraine. She only told doctors once in a while that she had a history of them.
Plaintiff told the ALJ that she had not taken any medication at all for her impairments
for well over a year because her prescriptions ran out and she could not afford to get new
ones. However, during the entire length of this case, plaintiff continued to smoke a pack of
cigarettes a day, indicating that she can find the money to buy things she wants and that her
symptoms must not be that bad or she would spend some of her cigarette money on
medication.
The record clearly supports the ALJ’s finding that plaintiff’s allegations of disabling
symptoms is not credible. Plaintiff argues, however, that the ALJ erred in the manner in which
she reached this conclusion because she did not specifically discuss every Polaski factor. This
argument is without merit. Neither case law nor agency policy requires such a ritualistic
approach because not every factor will be relevant in every case. The Eighth Circuit has made
very clear that an ALJ is not required to include a discussion of each Polaski factor. Samons v.
29
Apfel, 497 F.3d 813, 820 (8th Cir. 2007): Goff v. Barnhart, 421 F.3d 785, 791 (8th Cir.
2005). Rather, the appropriate inquiry is whether the ALJ properly looked at the evidence of
record as a whole relevant to a claimant’s individual claim. The ALJ in this case properly did so.
Plaintiff complains that the ALJ relied too heavily on the objective medical evidence in
evaluating plaintiff’s credibility, but the decision shows that the ALJ found plaintiff had a
severe seizure impairment despite the fact that the medical basis for seizures was unclear and
her MRI and EEG results were negative. Specifically, Dr. Felberg noted that it was unclear
what plaintiff’s spells represented and he characterized plaintiff’s description of them as “a
little peculiar.” Dr. Batchu found that her initial seizures might have been related to Topamax
withdrawal and Wellbutrin. And the doctors at Evanston Northwestern Hospital believed her
seizures to be psychological.
Contrary to plaintiff’s argument, the ALJ also properly considered the fact that plaintiff
has not sought or received any medical treatment since May 2009. Although plaintiff claims
that she has not sought treatment because of a lack of medical insurance, the record casts
doubt on that assertion. The record shows that plaintiff sought extensive treatment in 2007
and 2008 for seizures and other conditions despite the fact that she did not have insurance
during that time period either. She has not adequately explained what changed after May
2009 to prevent her from receiving additional medical care. Furthermore, Dr. King’s
treatment notes show that she would try to find out if plaintiff could qualify for “charitable
funds” to obtain an MRI. Plaintiff apparently received those funds because she subsequently
had the MRI. Yet the record fails to show that plaintiff tried to find any other sources of low
cost or free medical care. The record also contains no evidence that plaintiff was ever denied
treatment because she lacked insurance. Goff v. Barnhart, 421 F.3d at 793 (“[T]here is no
evidence Goff was ever denied medical treatment due to financial reasons. Without such
30
evidence, Goff’s failure to take pain medication is relevant to the credibility determination.”
citing Clark v. Shalala, 28 F.3d 828, 831 n. 4 (8th Cir. 1994)).
Therefore, it was appropriate for the ALJ to consider the fact that, at the time of the
administrative hearing, plaintiff had not been to a doctor for almost two years and had not
taken seizure medication for over a year prior to the administrative hearing in addition to not
taking seizure medication for over a year and a half after her alleged onset date.
Also without merit is plaintiff’s claim that the ALJ improperly considered the fact that
no doctor has placed any restrictions on her ability to work. Her assertion that consideration
of this fact circumvents the purpose of SSR 96-7p and Polaski is without merit. The Eighth
Circuit has made clear that it is relevant that no doctor has restricted a claimant’s activities.
See Choate v. Barnhart, 457 F.3d 865, 870 (8th Cir. 2006) (“There is no indication in the
treatment notes that either Dr. Freiman or any of Choate’s other doctors restricted his activities,
or advised him to avoid prolonged standing or sitting.”); Young v. Apfel, 221 F.3d 1065, 1069
(8th Cir. 2000) (citing Brown v. Chater, 87 F.3d 963, 964-65 (8th Cir. 1996).
The ALJ properly looked at other credibility factors as well. She discussed plaintiff’s
description of her daily activities and the questionnaire completed by her husband, she noted
plaintiff’s extensive daily activities.
Finally, the ALJ also determined that plaintiff had severe back problems even though the
evidence showed only mild clinical findings and very conservative treatment
recommendations. An MRI and x-rays showed only a “[m]inimal disc bulge” and “mild”
degenerative changes. Dr. King’s physical examinations showed some muscle spasm but no
reproducible tenderness to palpation and a “fairly normal” range of motion. She prescribed
medication but stated that regular exercise and general stretching exercises would make the
biggest difference. A pattern of conservative treatment is a factor properly considered by the
31
ALJ in evaluating credibility. Gowell v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001)(citing Black
v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998)).
Based on all of the above, I find that the substantial evidence in the record as a whole
supports the ALJ’s finding that plaintiff’s allegations of disabling symptoms is not credible.
VII.
PLAINTIFF’S RESIDUAL FUNCTIONAL CAPACITY
Plaintiff argues that the ALJ erred in determining plaintiff’s residual functional capacity
because she did not explain in detail what medical and non-medical evidence she utilized to
assess the RFC. This argument is without merit. As discussed at length above, there are almost
no abnormal findings in any of plaintiff’s medical records. Plaintiff complained of seizures;
however, her treating doctors thought they were psychological, put her on no medications for
years, put no functional limitations on her activities, and expressed disbelief at her alleged
symptoms as they conflicted sharply with what the nurses and doctors observed when plaintiff
was supposedly having a seizure. Plaintiff’s exams were consistently normal, x-rays and MRIs
were consistently normal, mental status exams were consistently normal. Plaintiff writes that,
“It is not apparent what medical evidence the ALJ used to derive her RFC.” However, I note
that it is not apparent what medical evidence plaintiff believes should have been used -plaintiff does not state what medical evidence the ALJ should have considered but did not.
Clearly this is because there are almost no abnormal medical findings anywhere in this record.
VIII.
CONCLUSIONS
Based on all of the above, I find that the substantial evidence in the record as a whole
supports the ALJ’s finding that plaintiff is not disabled. Therefore, it is
ORDERED that plaintiff’s motion for summary judgment is denied. It is further
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ORDERED that the decision of the Commissioner is affirmed.
ROBERT E. LARSEN
United States Magistrate Judge
Kansas City, Missouri
October 29, 2012
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