Weber v. Colvin
Filing
21
ORDER granting plaintiff's motion for summary judgment, reversing the decision of the Commissioner, and remanding for an award of benefits. Signed on 3/31/16 by Magistrate Judge Robert E. Larsen. (Wilson, Carol)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
PATRICIA WEBER,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
Case No.
14-4284-CV-C-REL-SSA
ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND
REVERSING THE DECISION OF THE COMMISSIONER
Plaintiff Patricia Weber seeks review of the final decision of the Commissioner of
Social Security denying plaintiff’s application for disability benefits under Title XVI of the
Social Security Act (“the Act”). Plaintiff argues that the ALJ erred in discrediting the
opinions of Dr. Kurle and Dr. Robbins while giving too much weight to the opinion of Dr.
Winkler, and by improperly discrediting plaintiff’s subjective complaints. I find that the
ALJ erred in discrediting the opinion of Dr. Kurle. Based on his opinion and the
testimony of the vocational expert, I find that the ALJ erred in finding plaintiff not
disabled.
I.
BACKGROUND
On July 28, 2010, plaintiff applied for disability benefits alleging that she had
been disabled since July 15, 2008, later amended to July 28, 2010. Plaintiff’s
application was denied initially and by an Administrative Law Judge after a hearing. On
January 18, 2013, the Appeals Council remanded for further consideration. On August
27, 2013, a second hearing was held before an Administrative Law Judge. On
November 4, 2013, the ALJ found that plaintiff was not under a “disability” as defined in
the Act. On September 4, 2014, 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
2
(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
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:
3
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.
IV.
THE RECORD
The record consists of the testimony of plaintiff, her father, vocational expert
Julie Bose, and medical expert Anne Winkler, M.D., Ph.D., in addition to documentary
evidence admitted at the hearing.
A.
ADMINISTRATIVE REPORTS
The record contains the following administrative reports:
Earnings Record
The record shows that plaintiff earned the following income from 1981 through
2013:
4
Year
Earnings
Year
Earnings
1981
$ 33.50
1998
$ 1,875.00
1982
0.00
1999
1,774.00
1983
402.63
2000
196.00
1984
5,457.71
2001
0.00
1985
1,461.00
2002
1,445.00
1986
4,414.08
2003
0.00
1987
1,261.29
2004
0.00
1988
0.00
2005
0.00
1989
2,454.70
2006
0.00
1990
0.00
2007
0.00
1991
0.00
2008
2,931.75
1992
0.00
2009
0.00
1993
0.00
2010
0.00
1994
0.00
2011
0.00
1995
2,586.00
2012
0.00
1996
0.00
2013
0.00
1997
0.00
(Tr. at 147, 150-151, 154, 172-173).
Disability Report - Field Office
On July 28, 2010, R. Wade interviewed plaintiff via telephone in connection with
her disability application (Tr. at 175-177). The interviewer observed that plaintiff had
5
problems with answering: “Hard time to get an answer from her. This interview lasted
forever. She could not remember any dates.”
Function Report
The Function Report dated August 17, 2010, is largely illegible due to poor copy
quality (Tr. at 186-193). Plaintiff reported that she lies down a lot during the day
because most nights she does not sleep well due to chronic pain. She also has trouble
sleeping because sometimes she will wake up “choking.” She can care for her personal
needs and does not require reminders to take care of her personal needs or to take
medication. She prepares her own meals with help, she can perform household chores
as needed but it takes her a long time and she normally needs to sit while she is doing
this, she can go out alone but when she goes out she rides in a car, her family does the
shopping, her hobbies include using a computer, she visits with family or talks on the
phone every day, and she has no problems getting along with others. Her impairments
do not affect her ability to remember, complete tasks, understand, follow instructions,
get along with others or use her hands. Her impairments do affect her ability to lift,
squat, bend, stand, reach, walk, sit, kneel, climb stairs and concentrate, all because of
pain and breathing problems.
Function Report - Third Party
On August 17, 2010, plaintiff’s father completed a Function Report (Tr. at 178185). Plaintiff is capable of caring for her own personal needs and does not require any
reminders for personal care or taking medication. She can prepare her own meals
while sitting. She has no problems getting along with others. Her hobbies include
6
using the computer. Plaintiff’s impairments do not affect her ability to understand,
follow instructions, complete tasks, remember, get along with others, or use her hands.
Her impairments do affect her ability to lift, sit, climb stairs, squat, kneel, stand, bend,
reach, walk, and concentrate.
Independent Living Resource Center Documentation
On April 25, 2013, plaintiff began receiving assistance through the Missouri
Department of Health and Human Services with the following activities:
1.
Bathing (10 minutes per day, 5 days a week)
2.
Cleaning the bathroom (15 minutes per day, once a week)
3.
Changing linens (10 minutes per day, 3 days a week)
4.
Cleaning floors (15 minutes per day, once a week)
5.
Tidying and dusting (5 minutes per day, once a week)
6.
Laundry (60 minutes per day, once a week)
7.
Trash (5 minutes per day, once a week)
8.
Meal preparation (20 minutes per day, 5 days a week)
9.
Washing dishes (10 minutes per day, 5 days a week)
10.
Cleaning the kitchen (15 minutes per day, once a week)
In addition, plaintiff was assisted with 300 minutes of transportation per month
for shopping and errands.
(Tr. at 241-242, 639).
7
American Homecare Progress Report
On August 23, 2013, Stephanie Schlots,1 LPN, wrote the following:
I am authorized to see Ms. Weber 1 x week for weekly medication set up,
reordering meds when needed and general assessment. I also give her allergy
injections as prescribed by the physician.
Ms. Weber requires this assistance as she becomes too anxious, unable to stay
on task to fill or take her own medications it becomes too overwhelming for her,
she also requires assistance at time[s] to complete phone calls for medical
related problems, during conversations she becomes side tracked and cannot
remember the reason for phone call.
Under Ms. Schlots’s signature, she added the following:
Ms. Weber also suffers from severe depression, meds are making some
progress but not enough for her to be independent with her activities of daily
living.
(Tr. at 243).
Letter to whom it may concern
On August 26, 2013, the following letter was written:
I am employed by Patricia Weber through Independent Living Resource Center
to provide housecleaning services as well as personal care for her. My duties
include caring for the home, cooking, laundry, running errands and shopping for
her. With Ms. Weber’s condition, she often becomes confused. Everyday tasks
often become more difficult for her because of this confusion. She also lacks the
physical stamina to complete household chores as exertion causes her pain.
(Tr. at 244).
1
The nurse’s signature is very hard to read; this is my best attempt at the spelling of
her last name.
8
B.
SUMMARY OF MEDICAL RECORDS
On March 3, 2010, plaintiff had a sleep study; it was determined that she did not
have sleep apnea (Tr. at 266, 345).
On April 2, 2010, plaintiff had a CT scan of her chest and abdomen to follow up
on lung nodules and due to complaints of abdominal pain (Tr. at 264, 343). “Client
looks good - nodules have resolved.” Plaintiff had a possible ovarian cyst.
On May 7, 2010, plaintiff had an MRI of her
lumbar spinal canal due to complaints of back pain (Tr.
at 262, 341, 514). Travis Scott, M.D., found minimal
disc bulge2 at the L4-5 level without significant central
canal or neural extraforaminal stenosis (narrowing).
She also had an MRI of her thoracic spinal canal which
showed two hemangiomas3 in the T9 vertebral body but an otherwise negative study
(Tr. at 263, 340, 515).
On May 27, 2010, plaintiff was seen at Westlake Medical Center (Tr. at 249).
Plaintiff reported that she still has back pain and was trying a massager. On exam she
was nontender over her lumbar spine. She was assessed with back pain and told to
continue the massager. She was assessed with dyspnea (shortness of breath) and the
2
A bulging disk is one in which the tough outer layer of the disk bulges into the spinal
canal.
3
Vertebral hemangiomas are benign vascular tumors around one or two vertebrae.
9
records indicate the medical provider was to check her overnight oximetry (blood
oxygen level).
On June 29, 2010, plaintiff had laparoscopic surgery to remove her right fallopian
tube; she was discharged with a prescription for narcotic pain medicine (Tr. at 330).
On July 10, 2010, plaintiff was seen at Westlake Medical Center (Tr. at 250).
Plaintiff reported that it was hard to breathe. She was on Vicodin (narcotic). She said
that Wellbutrin (antidepressant) was not helping as much with her mood and had not
helped with quitting smoking. She was assessed with chronic obstructive pulmonary
disease (“COPD”) and her Proventil inhaler was refilled.
On July 22, 2010, plaintiff was seen at by Kathleen Robbins, M.D. (Tr. at 250,
431). Plaintiff reported pain in her neck and back and said she had to sit while folding
laundry, but she was also in pain if she sat too long. Plaintiff reported some shortness
of breath on exertion. Plaintiff had stopped using her Proventil inhaler because it made
her turn red from her neck up to her face. She took her last Prednisone (steroid) the
day before and said it did not help. On exam it was noted that her mood was
somewhat anxious. She was assessed with back and neck pain and was given a
prescription for Cymbalta (antidepressant). Her dyspnea was noted to be stable.
Plaintiff also had poison ivy.
July 28, 2010, is plaintiff’s alleged onset date.
On August 2, 2010, plaintiff saw Martin Schwartz, M.D., a gynecologist,
complaining of ongoing pelvic pain, aggravated by physical activity (Tr. at 297-298, 416417). Dr. Schwartz observed tenderness in the right lower quadrant but noted that her
10
“pelvic exam is completely negative for any abnormalities. There’s a total lack of
tenderness.” He recommended a surgical consult.
That same day plaintiff had x-rays of her cervical spine (Tr. at 261, 322, 400).
She had mild degenerative disc disease at C5-6 (see diagram on page 9).
On August 9, 2010, plaintiff had an MRI of her cervical spine due to complaints
of right sided neck pain and headache (Tr. at 399, 513). The MRI was “totally normal.”
On August 11, 2010, plaintiff saw Kathleen Robbins, M.D., for a follow up on the
MRI of her cervical spine (Tr. at 430). “C-spine was good. . . . Still taking Cymbalta
[antidepressant] and hydrocodone [narcotic].” The examination section of the record
reads in its entirety: “moderate distress secondary to pain though pain seems diffuse
and nondescript.” Dr. Robbins assessed neck/back pain and headaches. Under the
doctor’s signature is written, “has had bad headaches several times per day. . . . takes
1 1/2 of the hydrocodone 2-3 times per day. It helps, not sleeping, up frequently, thinks
she had headaches before Cymbalta but they have been worse lately, eye started
twitching about a week ago.” Plaintiff still had poison ivy. Dr. Robbins assessed fatigue
and headaches.
On September 30, 2010, plaintiff had an MRI of her brain due to complaints of
headaches over the past 4 to 5 months (Tr. at 366, 398, 512). The MRI showed
possible middle ear infection (mastoiditis), chronic sinus disease, a cyst in the right
maxillary sinus, and a few small white matter lesions. “Differential diagnosis includes
early small vessel ischemic changes which would be somewhat atypical in a patient of
this age.” It was recommended that the MRI be repeated in 3 to 6 months.
11
On October 7, 2010, plaintiff saw Kathleen Robbins, M.D., and complained of
swelling in her left leg; she said she had fractured her tibia 18 years earlier when her
leg was run over (Tr. at 429). The results of Dr. Robbins’s physical exam consisted of
1+ pedal edema in the left foot, 1+ edema in bilateral lower legs. Plaintiff was assessed
with edema “stable” and headaches, although the record does not reflect that plaintiff
mentioned headaches. Plaintiff was told to follow up with an ENT and neurologist.
On October 23, 2010, plaintiff went to the emergency room complaining of
swelling and pain in her right leg (Tr. at 509-511). She had fallen off the roof of her
house two weeks earlier but had not sought medical treatment during that time. She
reported that her symptoms improve with movement. In a review of systems, plaintiff
reported only depression in her psychosocial history. She was smoking 1 to 2 packs of
cigarettes per day and had for the past 30 years. Plaintiff was observed to be alert,
calm, fully oriented with normal mood and affect. X-rays were taken and plaintiff was
assessed with fracture of the right distal fibula. She was provided with a splint and
crutches, was told to use ice and elevate her leg, and she was given a prescription for
Vicodin (narcotic).
On October 27, 2010, plaintiff saw Kathleen Robbins, M.D., for a follow up (Tr. at
429). Plaintiff said Neurontin4 made her have mood swings. “Will try to get Lyrica5
covered.” Plaintiff had her leg wrapped in a splint and Ace bandage. Dr. Robbins
4
Also called Gabapentin, used to treat nerve pain.
5
Used to treat nerve pain.
12
assessed right fibula fracture, referred plaintiff to Dr. Hoeft, and prescribed Percocet
(narcotic) for pain.
On October 28, 2010, plaintiff saw Thomas Hoeft, D.O., for evaluation of her leg
after she fell off the roof 18 days earlier (Tr. at 397). Dr. Hoeft recommended using a
walker boot and repeating her x-rays in one to two weeks.
On November 10, 2010, plaintiff saw Kathleen Robbins, M.D. (Tr. at 429). “Need
to get Lyrica, applying for disability, joints hurting, left shoulder bothering her.” Plaintiff
hurt her finger by catching it in a door, but it was getting better. She said Cymbalta
(antidepressant) seemed to help when she first started it, but it was no longer helping.
On exam she was noted to be in moderate distress due to pain. Her mood was OK, her
affect was appropriate. She had “mild” tenderness in her joints. The assessment part
of the record was cut off in copying.
On November 15, 2010, plaintiff had a pulmonary function test which showed
“possible mild obstructive ventilatory impairment. There may be mild obstructive
change as shown by the slight decreased flow rates but the patient effort is not optimal.
There was no improvement with bronchodilator.”
On November 17, 2010, plaintiff saw Philip Kurle, M.D., a neurologist (Tr. at 487491, 500-508).
Insofar as the patient’s headaches, she says she suffered from headaches for
many years. These worsened around July 2010. . . . She can have two to three
headaches in a day. She has a headache about three to four days per week.
The last was one to two days ago. She rates these up to 10/10 at times. She
feels as if her head wants to explode. Sometimes the pain is sharp and
stabbing. It may throb. There is associated photo- and phonophobia.
Sometimes the patient sees squiggly lines. She has blurred vision. There is no
13
nausea or vomiting. Sometimes she feels confused during her headaches. She
is using hydrocodone [narcotic] at times to treat these. She is taking one about
every four to six hours most days. She generally needs to lie down in a quiet
place.
The patient also complains of symptoms consistent with fibromyalgia. She says
that her joints hurt everywhere. She feels that this started in her hands. It is
gradually worsened over the past year or so. She also reports that she has
chronic back pain. She has pain suggestive of sciatica extending down the right
posterolateral leg. It is worse with activity. It is rated 4-5/10.
The patient has tingling in her hands, especially at night. . . . This seldom
bothers her during the day.
The patient also says she fell off a roof on October 10, 2010. . . . Apparently she
was cleaning some gutters when a branch that she was using to stabilize herself
snapped.
The patient also complains of mood and behavioral issues. She feels that these
are worse in the past year. The patient mentions she was treated on Cymbalta
primarily for her fibromyalgia, though possibly also for her mood. She is using
alprazolam6 for anxiety. She said that she is sleeping poorly.”
During a review of systems, plaintiff reported a positive result for “48 of 90
possible issues. I am not going to detail all of these 48 issues here, but I did review
each and every one of them with the patient during our visit.” Plaintiff reported being a
current smoker and smoking 1 1/2 packs of cigarettes per day for the past 25 years.
On exam it was noted that plaintiff “is a pleasant, engaging, moderately obese, middleaged woman in occasional distress and appearing uncomfortable at times, and she
attributes this to ‘joint pain all over.’” She had some stiffness in her neck in all
directions. Her lungs were clear to auscultation bilaterally. Her cardiac exam was
normal. Her extremities were normal with no edema. During a mental status exam, Dr.
6
Also called Xanax.
14
Kurle observed that plaintiff was “alert and oriented to person, place, time and situation.
She had 3/3 registration and 3/3 recall with good attention for backward spelling. Her
speech was fluent with good naming and repetition. Her mood and affect seemed
overall reasonably appropriate, though she was somewhat anxious. She had a good
fund of general knowledge and knew the president.” Motor exam, sensory exam,
coordination exam were normal. Gait and station were normal “although there was
some sidestepping during tandem gait. There was good heel and toe walking.” Dr.
Kurle reviewed plaintiff’s September 2010 MRI of the brain.
IMPRESSION AND PLAN: We discussed a range of potentially neurological
concerns today. The patient is most concerned about the MRI of the brain. I
explained that the types of white matter changes seen on the MRI are quite
common and increasingly recognized in patients who have chronic migrainous
headaches. They are presumably attributable to the low-grade migrainous
vasospasm. The patient does have a history of head trauma, and it is possible
this could represent an old traumatic lesion, thought I think it is an unusual
location for such a lesion. A demyelinating lesion is less likely but cannot be
excluded. Likewise, a low-grade glioma would be yet another more remote
consideration. These final two considerations, however, compel me to repeat an
MRI of the brain with and without contrast in about three months for surveillance.
Dr. Kurle told plaintiff there was no reason to be taking Lyrica (treats nerve pain)
three times a day as she currently was. He switched her dosage from 50 mg three
times a day to 150 mg once a day. He told her to wear wrist braces at night.
On November 21, 2010, Kathleen Robbins, M.D., completed a Medical Source
Statement Physical (Tr. at 368-371). She found that plaintiff could lift 5 pounds
frequently and 10 pounds occasionally; stand or walk a total of 2 hours per day and 30
minutes at a time; sit for a total of 4 hours per day and 60 minutes at a time; and would
need to alternate sitting and standing, elevate her feet, and recline during the day. She
15
found that plaintiff is limited in her ability to push and pull -- “fairly limited due to
back/neck problems and arthritis in joints.” She found that plaintiff could occasionally
stoop, kneel, crouch or bend, but she could never climb or balance. She found that
plaintiff was limited in her ability to reach but had an unlimited ability to handle, finger,
or feel. She found that plaintiff could not safely work around heights or with machinery
due to joint pain and back/neck problems. “Pain prevents pt from lifting/carrying or
standing/sitting for prolonged periods.” In addition, plaintiff suffers from anxiety and
shortness of breath due to COPD which may interfere with a regular work day.
On November 30, 2010, plaintiff saw neurologist Philip Kurle, M.D., who
prescribed bilateral hand splints to be worn at night, and on December 6, 2010, that
prescription was faxed to Medicaid on a “certificate of medical necessity.” (Tr. at 484486).
On December 6, 2010, plaintiff saw Steven Adelman, Psy.D., a licensed clinical
psychologist, for an assessment in connection of her application for benefits (Tr. at 444446, 733). Dr. Adelman made the following recommendations: “She does have the
signs and symptoms of panic disorder and depression. It appears that her lifestyle is
fairly impaired due to the breathing problems and the pain that she perceives. She has
the ability to understand and follow simple instructions, but would have problems with
detailed ones. It is doubtful that she could withstand the normal stresses of a
workplace or relate predictably in vocational or social situations due to her panic
disorder.” The only basis in this record for a diagnosis of panic disorder was plaintiff’s
16
report that she has panic attacks, and up to this point plaintiff had never reported panic
attacks to any treating doctor (Tr. at 444).
On December 22, 2010, plaintiff saw Kathleen Robbins, M.D. (Tr. at 428).
“Joints still hurting a lot, pain meds not helping, on hydrocodone 10/325 mg lately taking
4-5 day, a lot of headaches lately.” The notes on Dr. Robbins’s observation are one
line long and are illegible. She assessed fibromyalgia and prescribed Percocet
(narcotic) and Ambien (treats insomnia). She assessed “headaches - will monitor”.
She assessed “dizziness - better today” after plaintiff described dizziness as what she
believed was a side effect to medication prescribed by Dr. Kurle.
On December 23, 2010, plaintiff saw Douglas Howland, D.O., with complaints of
headaches, post nasal drip and sinus congestion (Tr. at 452-453). During a review of
systems, plaintiff reported chest pain, shortness of breath, cough, wheezing,
tuberculosis, COPD, weight gain, loss of appetite, fever, allergy symptoms, fatigue,
insomnia, leg edema, exercise intolerance, hives, sensitive skin, hot/cold intolerance,
swelling, excessive thirst, frequent urination, hand growth, hearing loss, change in
voice, sore throat, ringing in the ears, speech delay, trouble swallowing, troubling
breathing, dental pain, nausea, vomiting, abdominal pain, diarrhea, constipation, easy
bruising, swollen glands, night sweats, hemophilia, joint swelling, leg cramps, arthritis,
neck pain, back pain, headache, migraines, imbalance, weakness, numbness, red
eyes, vision changes, depression, anxiety, mood swings, ADHD, and autism. She
reported that she smokes and uses alcohol. Her medications included Percocet
17
(narcotic), Ambien (treats insomnia), Lasix (diuretic), Norco (narcotic), Phentermine,7
Ultravate (steroid), Combivent inhaler, Spiriva (bronchodilator used to treat COPD),
Lyrica (for nerve pain), Advair Diskus (treats COPD). On exam plaintiff was noted to be
cooperative, alert and oriented, in no apparent distress. She had normal range of
motion in her neck. Dr. Howland assessed headache and chronic sinus infection not
otherwise specified. He ordered a CT scan of plaintiff’s sinuses and recommend that
she use a sinus irrigation in her nose daily.
On December 30, 2010, plaintiff had an MRI of her brain due to complaints of
chronic headaches and to follow up on a while matter lesion, after having been referred
by Philip Kurle, M.D. (Tr. at 362, 492). “Small white matter lesions are unchanged since
9/30/10 and do not enhance; these are most likely migraine-induced microvascular
changes and/or small infarcts.” Plaintiff had signs of chronic sinus infection. “No new
abnormalities are identified.” She also had a CT scan of her sinus which showed
postoperative changes and signs of chronic sinusitis (Tr. at 365, 451).
On January 3, 2011, Philip Kurle, M.D., a neurologist, wrote a letter to Kathleen
Robbins, M.D., after plaintiff’s follow-up visit that day for headaches and other issues
(Tr. at 381-383, 479-483). “We primarily talked about her migrainous headaches, I also
feel that likely she has bilateral low-grade carpal tunnel syndrome. She has sciatica
and presumed lumbar degenerative disc disease. She has a region of abnormality in
7
Phentermine is a stimulant similar to an amphetamine. It acts as an appetite
suppressant by affecting the central nervous system. Phentermine is used together
with diet and exercise to treat obesity in people with risk factors such as high blood
pressure, high cholesterol, or diabetes.
18
the right frontal region of her MRI. She likely has fibromyalgia as well as depression
and anxiety.” Dr. Kurle noted that plaintiff’s recent MRI was unchanged from the one
done in September. “[T]he regions of white matter abnormality within the right frontal
lobe . . . are nonspecific. It remains my suspicion that these are related to low-grade
vascular changes, which are actually themselves stemmed from the patient’s migraines
and associated low-grade recurrent migrainous vasospasm. This is a recently wellknown and well-published potential sequelae of chronic migraines. So far there is no
good evidence of a demyelinating condition.8 I tried to reassure the patient about this.”
Plaintiff described an “episode” she had after her last visit, “[t]he nature of which is a
little uncertain to me.” She said she went into the bathroom and felt as if it were
blowing up, she felt as if there were strands of water coming off her hair, she went back
to bed and felt hot, then she got hot and cold flashes before getting a severe headache.
These symptoms resolved after a few hours. “She has not been evaluated since that
time.” Plaintiff reported continuing to have significant migrainous headaches three to
four times per week. She reported some tingling and discomfort in her hands and
fingers. “Since starting on Lyrica she is, however, not having as many diffuse aches
and pains. She is not taking her hydrocodone or oxycodone pain medications as
much.”
8
A demyelinating disease is any condition that results in damage to the protective
covering (myelin sheath) that surrounds nerve fibers in the brain and spinal cord. When
the myelin sheath is damaged, nerve impulses slow or even stop, causing neurological
problems.
19
On exam plaintiff was described as pleasant and somewhat tired-appearing. Her
psychiatric and neurological exams were normal; gait and station were normal. Dr.
Kurle reviewed plaintiff’s blood work from November 2010 and noted that her B12 level
and Vitamin D level were low. He diagnosed chronic migrainous headaches,
fibromyalgia “improved to some degree on Lyrica,” likely bilateral low-grade carpal
tunnel syndrome, lumbar degenerative disc disease with sciatica “stable,” abnormal
MRI, depression and anxiety, and vitamin D deficiency. Dr. Kurle prescribed
Topiramate daily to prevent migraines, Midrin to take at the onset of any migraine, and
he told her to start taking a Vitamin D and calcium supplement daily. He also told
plaintiff to drink at least eight 8-ounce glasses of water per day.
On March 29, 2011, plaintiff saw Philip Kurle, M.D., a neurologist, who then
wrote a letter to Kathleen Robbins, M.D. (Tr. at 379-380, 477-478, 522-523). “There is
a region of abnormality in the right frontal lobe seen on prior MRI, which is of doubtful
significance. This may be related to the migrainous headaches themselves. . . . Today
Ms. Weber reports that she had been doing reasonably well after our last visit, but her
headaches have been worsening over the past four to five days. The pain is behind her
right eye. It seems to extend to her neck. She is taking Lyrica 150 mg twice daily.
Previously I had prescribed her some butalbital9 and Midrin. These seemed to make
her sick. The patient feels confused and forgetful. She has trouble spelling simple
words. She feels her memory is poor. She feels her mood is up and down. She feels
easily overwhelmed and frustrated.”
9
Butalbital is a barbiturate, a central nervous system depressant.
20
On exam plaintiff was described as pleasant, engaging and tired-appearing. Her
lungs were clear to auscultation. Her psychiatric exam was normal. Neurological exam
was normal. Dr. Kurle told plaintiff to restart Topamax daily for her headaches, he gave
her a trial of Savella (antidepressant and nerve pain medication) for fibromyalgia, he
gave her a trial of gabapentin (also called Neurontin, for nerve pain). “The patient has
this prescribed but is not using it routinely. She may take one to three of the 400 mg
capsules up to three times a day as needed for headaches.”
On April 20, 2011, plaintiff saw Kathleen Robbins, M.D., with a chief complaint of
“needs Percocet” (narcotic) (Tr. at 427-428). Plaintiff said her knees had been
bothering her, and she had pain in her groin and pelvis. Plaintiff reported “bad side
effects” from Topamax. The results of Dr. Robbins’s physical exam were soft
nontender abdomen with normal bowel sounds, and clear chest. She assessed knee
pain and refilled plaintiff’s “pain meds”.
On May 19, 2011, plaintiff saw Zubair Khan, M.D., a cardiologist, for a follow up
(Tr. at 395-396). “According to the patient, she has been having problems with
increasing shortness of breath. She denies any problems with chest pain, orthopnea,10
paroxysmal nocturnal dyspnea,11 presyncope12 or syncope.13 On her last visit, patient
10
Shortness of breath when lying flat.
11
Attacks of severe shortness of breath and coughing that generally occur at night,
usually awakening the person from sleep.
12
Lightheadedness and feeling faint.
13
Fainting.
21
was encouraged to bring along her medication list. On today’s visit, patient, once
again, is not aware of her current medication, and was once again encouraged to bring
along her medication on her next visit.” On exam plaintiff was noted to appear
comfortable. Her pulmonary exam was normal: “Normal bilateral chest expansion,
good bilateral air entry, normal vesicular breathing bilaterally, no wheezes or crackles
noted.” Plaintiff was assessed with shortness of breath probably related to
cardiomyopathy (abnormal heart muscle), cardiomyopathy, and COPD. Dr. Khan
prescribed Lasix (diuretic), K-Dur (potassium), and Lisinopril (treats hypertension).
That same day plaintiff saw Kathleen Robbins, M.D., complaining of “intense
pain in knees; pain lower abdomen/pelvis on right” and pain in her right buttock making
it hard to sit (Tr. at 427). No exam was performed, but Dr. Robbins’s observation was
that plaintiff was in no acute distress. She assessed arthralgia (joint pain) and refilled
plaintiff’s “pain meds”.
On June 3, 2011, Philip Kurle, M.D., a neurologist, wrote a letter to Kathleen
Robbins, M.D., after plaintiff’s appointment that day (Tr. at 377-378, 475-476, 520-521).
At the time of the patient’s last visit we made some changes in the patient’s
medication. The patient was titrated up on Topamax. She felt that this made her
irritable, confused and forgetful. With that being said, her migrainous headaches
seem to be a little better. They are not going on for as long. She has had two or
three headaches this week but they only last a few hours, rather than all day.
The pain is rated 5-6/10. It is felt primarily occipital, but may also nave a
pressure behind the eyes. There is associated photophobia and phonophobia.
The patient also reports that her legs feel weak and painful in the mornings. She
is using elbow pads and braces. She is not using her wrist splints for carpal
tunnel syndrome. . . . The patient continues to have some pain shooting down
the back of her right leg consistent with sciatica.
22
When I last saw the patient, I had recommended starting Savella for her
fibromyalgia. Unfortunately, insurance would not cover this.
Plaintiff also complained of pain in her knees, worsened with weightbearing, and
she “feels her knees are swollen.” On exam plaintiff was observed to be a pleasant,
engaging woman in no apparent physical distress. Her psychiatric exam was normal.
Grip strength was normal bilaterally. She had diminished sensation in the 1st, 2nd and
3rd fingers of both hands. Gait and station were normal. Plaintiff was assessed with
the following:
1.
Fibromyalgia.
2.
Migrainous headaches, under less than optimal control.
3.
Bilateral carpal tunnel syndrome.
4.
Lumbar degenerative disc disease.
5.
Right frontal MRI abnormality, probably related to migraines.
6.
Ongoing issues with depression and anxiety.
7.
Prior vitamin D deficiency. The patient has not yet started adding a
vitamin D supplement.
Plaintiff was given Lidoderm (anesthetic) patches to apply to painful areas, a trial
of methocarbamol (muscle relaxer) for muscle tension, back exercises, a prescription
for wrist and knee splints and braces, and she was given a prescription for citalopram
(antidepressant) to start in a week. She was told to start riboflavin (vitamin B2) and
ergocalciferol (vitamin D2) daily.
23
On June 10, 2011, plaintiff had a cardiac stress test which showed an area of the
heart muscle getting reduced blood supply, ejection fraction14 of 62%; and normal
myocardial (heart muscle) thickening and wall motion (Tr. at 394).
On June 23, 2011, plaintiff saw John Patton, D.O., for evaluation of a possible
hernia (Tr. at 388-391, 463-466). Plaintiff reported smoking a pack of cigarettes a day
and occasional alcohol use. She said she was applying for disability because of her
fibromyalgia and COPD. On exam her lungs were clear to auscultation bilaterally, her
breathing was nonlabored. “The patient has essentially normal spinal curvature of the
cervical, thoracic, and lumbar spine. Range of motion of extremities is grossly intact.
Gait is even and steady.” Dr. Patton recommended laparoscopic surgery to see if a
hernia was present.
On June 30, 2011, plaintiff saw Kathleen Robbins, M.D., for a check up (Tr. at
427, 537). Plaintiff said Dr. Kurle had put her on lidoderm patches which help. “Lyrica
helps too.” Under observation, Dr. Robbins noted only that plaintiff’s heart was OK and
her lungs were clear. She assessed fibromyalgia and continued plaintiff’s “current
meds.” Plaintiff also had poison ivy.
14
Ejection fraction is a measurement of the percentage of blood leaving the heart
each time it contracts. During each heartbeat pumping cycle, the heart contracts and
relaxes. When the heart contracts, it ejects blood from the two pumping chambers
(ventricles). When the heart relaxes, the ventricles refill with blood. No matter how
forceful the contraction, it never is able to pump all of the blood out of a ventricle. The
term “ejection fraction” refers to the percentage of blood that is pumped out of a filled
ventricle with each heartbeat. The left ventricle is the heart’s main pumping chamber
that pumps oxygenated blood through the ascending (upward) aorta to the rest of the
body, so ejection fraction is usually measured only in the left ventricle (LV). An LV
ejection fraction of 55 percent or higher is considered normal.
24
On July 22, 2011, John Patton, D.O., performed a diagnostic laparoscopy and
determined that plaintiff had a small ventral hernia,15 about 1 cm in size (Tr. at 469471).
On August 9, 2011, plaintiff saw John Patton, D.O., for a follow up (Tr. at 386387, 472-474). She was referred to Martin Schwartz, M.D., a gynecologist, due to
discovery of an ovarian cyst during the laparoscopic surgery (Tr. at 412-414). Dr.
Schwartz noted that plaintiff was a current every-day smoker. Plaintiff reported her
current medications as Albuteral (bronchodilator which treats COPD), Cymbalta
(antidepressant and nerve pain medication), Spiriva (bronchodilator), and Xanax (antianxiety medication). Dr. Schwartz recommended removal of the ovarian cyst -- it “may
or may not be the cause of her left lower quadrant pain”.
On August 12, 2011, plaintiff saw Kathleen Robbins, M.D., for a follow up (Tr. at
426, 536). Plaintiff said she was still in a lot of pain from her laparoscopic surgery and
was taking four Percocet (narcotic) per day. Plaintiff described her back pain as “bad”
and said the Lidoderm patches were not helping at all. She could not sleep due to pain.
Plaintiff said Wal-Mart still did not have the Lyrica (treats nerve pain) she had been
prescribed for pain. Her insurance would not pay for the knee braces prescribed by Dr.
Kurle and both of her knees give out. On exam the only abnormal finding was bruising
on plaintiff’s abdomen from the laparoscopic surgery. Dr. Robbins assessed back pain
and refilled plaintiff’s Percocet. Plaintiff also had poison ivy.
15
A ventral hernia is a bulge through an opening in the muscles on the abdomen.
25
On August 18, 2011, plaintiff saw Zubair Khan, M.D., a cardiologist, for a follow
up (Tr. at 392-393). “According to the patient, she has generally been doing well. She
reports her shortness of breath has improved. She denies any problems with chest
pain. Since the patient’s last visit, the following testing has been completed: Cardiac
stress test”. On exam plaintiff was noted to appear comfortable. Her physical exam
was normal including her pulmonary exam: “Normal bilateral chest expansion, good
bilateral air entry, normal vesicular breathing bilaterally, no wheezes or crackles noted.”
She was assessed with shortness of breath probably related to cardiomyopathy
(abnormal heart muscle), cardiomyopathy with subsequent improvement, and COPD.
Treatment was deferred unless plaintiff’s condition worsened. “In the meantime, will
encourage patient to consider smoking cessation.”
On August 24, 2011, plaintiff saw Kathleen Robbins, M.D., complaining of a rash
and allergies (Tr. at 426, 536).
On September 2, 2011, plaintiff saw Kathleen Robbins, M.D., complaining of a
sore throat (Tr. at 425, 535). Dr. Robbins examined plaintiff’s head, eyes, ears, nose
and throat. She assessed upper respiratory infection (for which she prescribed
antibiotics), COPD (for which she prescribed Symbacort), and a rash (for which she
prescribed Prednisone tapes).
On September 22, 2011, plaintiff saw Martin Schwartz, M.D., for a pre-op
physical (Tr. at 409-411, 624-625). Plaintiff was noted to be a current every-day
smoker and a homemaker. Her pulmonary exam was normal. Her cardiac exam was
normal. A physical exam of her back showed no tenderness on palpation, no muscle
26
spasm, no costovertebral angle tenderness.
On September 27, 2011, plaintiff had a
hysterectomy performed by Martin Schwartz, M.D. (Tr. at
407-408, 610-611). The following day she had chest xrays due to complaints of fever; the x-rays were normal
(Tr. at 404, 604). Plaintiff’s records reflect that she continued to smoke 1 to 2 packs of
cigarettes per day (Tr. at 606). While in the hospital, it was noted that “the rest of her
medical problems of migraines, chronic obstructive pulmonary disease, hypertension,
dyslipidemia, arthritis, depression, appear to be stable at this time.” (Tr. at 600). On
September 30, 2011, while still in the hospital, plaintiff saw Rene Galan, M.D., and
during a review of systems reported experiencing all of the following: chills, malaise,
night sweats, weakness, shortness of breath, wheezing, chest pain, palpitations,
nausea, vomiting, dysuria, urinary frequency, arthralgia, bruising, change in speech,
confusion, anxiety, depression, cold intolerance, heat intolerance, and anemia.
However, on exam plaintiff was noted to be alert and fully oriented, cooperative, in no
acute distress, in no respiratory distress, her lungs were clear, her cardiology exam was
normal with normal heart sounds, she had no tenderness or edema in her extremities,
her speech was normal (Tr. at 616). “She is not smoking at present and is encouraged
to cease tobacco use.” (Tr. at 618). By October 1, 2011, plaintiff still had a fever (Tr. at
598-599). She denied neck pain (Tr. at 606). She had a mild headache. On exam her
lungs were normal with no wheezing or crackles. She had normal heart sounds and no
ankle edema. She was assessed with fever, postoperative anemia, hypokalemia (low
27
potassium) and depression. “The rest of her medical problems appear to be stable at
this time.” (Tr. at 608). Plaintiff was given antibiotics.
On October 6, 2011, plaintiff saw Martin Schwartz, M.D., for suture removal from
her surgery to remove an ovarian cyst (Tr. at 402-403). Plaintiff was noted to be a
current every-day smoker.
That same day she saw Philip Kurle, M.D., a neurologist, for a follow up on
fibromyalgia (Tr. at 549-550). Her headaches were unchanged and ongoing. “The
higher dose of Lyrica has been very helpful. . . . Migraines have improved to some
degree. She feels that the riboflavin [has] been helpful. The patient reports that the
lidoderm patch helps. The patient had a hysterectomy on 9-27-11. She is sleeping
poorly.” Her entire exam was normal including clear lungs, normal gait, a pleasant
general appearance. Dr. Kurle assessed fibromyalgia, depression, unspecified back
pain, and “other forms of migraine without mention of intractable migraine with status
migrainous.”16 He prescribed Savella (antidepressant and nerve pain medication).
On October 10, 2011, plaintiff saw Kathleen Robbins, M.D., complaining of a
rash (Tr. at 425). “Breathing is OK. . . . still having headaches.” No exam was
performed. Dr. Robbins assessed fibromyalgia and back pain and refilled plaintiff’s
medications (but did not indicate what those medications were). She also assessed
COPD “stable” and headaches “unchanged”. That same day plaintiff was notified by
Independent Living Resource Center, Inc., that she was eligible for services (Tr. at
16
Intractable migraine with status migrainosus means a migraine headache lasting at
least 72 hours.
28
357). “The criteria for being eligible for Independent Living services, is having a
disability and an unmet need.”
On October 19, 2011, plaintiff saw Kathleen Robbins, M.D. (Tr. at 535). Plaintiff
reported that her breathing was OK. She said she was still having headaches. Dr.
Robbins noted that plaintiff was in no acute distress and that her lungs were clear. No
other exam was noted. She assessed fibromyalgia and refilled plaintiff’s “meds”. She
assessed back pain and noted that plaintiff’s COPD was stable and that her headaches
were “unchanged.”
On November 18, 2011, plaintiff saw Kathleen Robbins, M.D., for a follow up (Tr.
at 534). Plaintiff reported pain in her upper chest, burning and tingling in the bottom of
her feet, snapping of her joints, pain in her groin, pain with lifting, gums turning dark and
sore, and “needs wrist braces due to wrist pain.” Dr. Robbins’s exam consisted of
looking at plaintiff’s head, eyes, ears, nose and throat. She observed discoloration of
gums. She assessed groin pain, neuropathy vs. carpal tunnel, and fibromyalgia for
which she refilled plaintiff’s “meds.”
On December 12, 2011, plaintiff had a CT of her pelvis after complaints of pelvic
and right groin pain (Tr. at 597). The CT was normal.
On December 19, 2011, plaintiff saw Kathleen Robbins, M.D., for a follow up (Tr.
at 534). Plaintiff said that she needed a back brace that extended from her low back to
her neck, she needed a nerve conduction study, and she “would like to try 37.5 mg
phentermine”, an appetite suppressant. No exam was performed. Dr. Robbins noted
only that plaintiff was in “no acute distress.” She assessed fibromyalgia and refilled
29
plaintiff’s Percocet (narcotic). She assessed back pain and prescribed a back brace.
She increased plaintiff’s Phentermine to 37.5 mg.
On January 19, 2012, plaintiff saw Kathleen Robbins, M.D., for a follow up (Tr. at
533). She reported itching and sinus/allergy symptoms. “Has been waiting for State to
approve nurse giving allergy shots.” Dr. Robbins examined plaintiff’s head, eyes, ears,
nose and throat. No abnormal observations were noted. She assessed back pain and
refilled plaintiff’s “meds”.
On February 28, 2012, plaintiff saw Philip Kurle, M.D., a neurologist for a follow
up (Tr. at 545-548). Plaintiff reported that Nortriptyline (antidepressant and nerve pain
medication) was causing a rash on her legs and face. “At the time of our last visit, the
patient was prescribed Savella. She feels that this caused nausea and vomiting. We
then tried Cymbalta, and she feels that this also made her feel ‘sick.’ We then tried
topiramate, and the patient wondered (retrospectively) about whether or not this was
helpful or causing problems. In December we had tried nortriptyline. This caused
some mood changes, but the patient has continued to take it. She feels that it is
making her feel tired. . . . The patient is not sure that methocarbamol [muscle relaxer]
is of any benefit. The patient feels that Phentermine [appetite suppressant] helps her
stay awake. It has not been of any benefit for her weight.” Plaintiff said her mood was
getting worse and described one or two days when she “just exploded.” Plaintiff said it
was hard to walk and her knees hurt. “She is tearful that she feels that she is losing
ground.” Plaintiff said she was generally not feeling well, her thinking was cloudy, she
was having more generalized pain, more neck pain, frequent migrainous headaches.
30
She complained of numbness and burning in her feet, swollen ankles, achy joints, a
rash on her ankle, a painful right hip, and painful groin. Plaintiff was not taking her
Ambien (sedative) every day. She was using oxycodone (narcotic) 2 to 3 times per day
and alprazolam (anti-anxiety) once or twice a day. “Lidoderm [local anesthetic] is of
some help for her back pain. The patient is still smoking, but she feels that she has cut
down. She has some hopes to quit by April, but she really does not have any specific
plan.” Plaintiff’s entire exam was normal. Dr. Kurle ordered lab work. He told plaintiff
to stop taking Nortriptyline, increase her Lyrica and follow up in 4 months.
On February 29, 2012, plaintiff saw Kathleen Robbins, M.D., for a follow up on
broken teeth (Tr. at 533). Plaintiff also complained of pain in her right hip. Dr. Robbins
observed tenderness in plaintiff’s right hip. The only other observation was that plaintiff
was in no acute distress. Dr. Robbins assessed allergies, back pain (for which she
refilled plaintiff’s Percocet, a narcotic), and fibromyalgia which she noted to be “stable.”
On May 30, 2012, plaintiff saw Kathleen Robbins, M.D., for a follow up (Tr. at
532). Plaintiff needed dental treatment due to black gums and broken teeth; however,
Medicaid would not cover that. “Having migraines, has numbness in feet, Dr. Kurle
doesn’t feel she needs nerve conduction study (per patient), having migraines.” Dr.
Robbins examined plaintiff’s head, eyes, ears, nose and throat. She noted only that
plaintiff had multiple dental caries (tooth decay/cavities). She assessed back pain and
fibromyalgia and refilled plaintiff’s Percocet. She prescribed an antibiotic for plaintiff’s
gums.
31
On June 12, 2012, plaintiff saw Steven Adelman, Psy.D., a licensed clinical
psychologist, in connection with her Medicaid benefits (Tr. at 705-707, 733). Plaintiff
reported having panic attacks in the recent past. Dr. Adelman performed a mental
status exam. He assessed major depressive disorder (moderate) and panic disorder.
“She does have the signs and symptoms of major depressive disorder, which appears
to be associated to pain. She also appears to have a severe amount of anxiety. It is
doubtful she could withstand the normal stresses or relate predictably in most
vocational or social situations.” Again, the only mention of panic attacks in the record is
during plaintiff’s visit with Dr. Adelman on this occasion and two years earlier, both in
connection with applications for benefits.
On June 26, 2012, plaintiff saw Philip Kurle, M.D., a neurologist (Tr. at 542-544).
Plaintiff complained of fibromyalgia which she described as “painful and annoying,”
weight gain on Lyrica, depression due to being tired, and back pain. Plaintiff reported
having previously had gastrointestinal problems with Cymbalta and Savella. “Lyrica has
seemed to be of some significant benefit, though she feels it is a little less effective over
time. She feels very fatigued on this medication. Overall, however, the patient feels
that the benefits of Lyrica for her pain outweigh the side effects, such as fatigue. She
admits that she has had issues with chronic fatigue even before starting the Lyrica.
Nonetheless, she still falls asleep frequently during the day.” Plaintiff reported being
less able to walk due to pain, which caused her to be more sedentary. Plaintiff said her
migraines were less frequent, about 4 or 5 per month, but “disabling” when they occur.
Dr. Kurle noted that in October and November 2011, plaintiff had been tried on
32
Topiramate but plaintiff said her thoughts were speeding and, even at a reduced dose,
she reported mood changes. Plaintiff had been going through a difficult time back then
and now believed that it was “quite possible that her thinking problems and other
potential mood changes were probably due to reasons other than medications.” She
wanted to try Topiramate again. Plaintiff said methocarbamol was not helpful for her
muscle cramps and spasms but that Dr. Robbins had put her on Tizanidine and this
was helpful and relaxed her but plaintiff felt it was contributing to her sleepiness.
Plaintiff said the has always had some modest problems with attention. “The patient
may forget what she was doing. She often stops tasks before they are completed. Part
of this is that she feels that she simply runs out of energy.” Plaintiff said that attention
deficit disorder runs in her family, with 2 siblings and all 4 of her daughters having been
treated for ADD. Plaintiff’s entire exam was normal except that she was noted to be
“tired appearing.” She was assessed with “Attention Deficit” along with disturbance of
skin sensation, fibromyalgia, depression, unspecified back pain, degenerative disc
disease, other forms of migraine without mention of intractable migraine and “other
malaise and fatigue.” He prescribed Camdenton cream for fibromyalgia. He prescribed
Topiramate for migraines. He prescribed Methylphenidate (also called Ritalin) for
attention deficit.
On June 29, 2012, plaintiff saw Kathleen Robbins, M.D., for a follow up (Tr. at
582-584). Plaintiff complained of abscessed teeth. She also reported lower back pain,
“wears lidocaine patches, too hot for brace right now.” The results of plaintiff’s physical
exam were as follows: overall appearance - normal; lumbar spine - tenderness;
33
orientation - oriented to time, place, person & situation. Appropriate mood and affect.
Poor insight. Poor judgment.” Dr. Robbins assessed fibromyalgia - “medications
refilled.” She assessed lumbosacral pain and told plaintiff to “continue current
medications.” She refilled plaintiff’s antibiotic for her dental abscess.
On July 2, 2012, plaintiff had nerve conduction studies which showed right
cubital tunnel syndrome17 (Tr. at 679-680, 685-686). “Lower extremity [results] were
unobtainable due to edema.” Plaintiff had not taken her diuretic that morning (Tr. at
579-581).
On July 23, 2012, plaintiff had a repeat nerve conduction study in her legs which
showed right peroneal axonal neuropathy18 (Tr. at 681-682). The nerve conduction
study on her upper extremities showed improved cubital tunnel syndrome.
On August 2, 2012, plaintiff saw Kathleen Robbins, M.D., for a follow up on
fibromyalgia and back pain (Tr. at 579-581). “Had nerve conduction study but didn’t
take her water pill that morning. Too much edema to get results on lower extremities.”
Plaintiff’s complaints consisted of edema, headache, numbness in extremities, back
pain and joint pain. Her physical exam consisted of the following: “Well developed.
Normal range of motion, muscle strength and stability in all extremities with no pain on
17
Cubital Tunnel Syndrome is a condition that involves pressure or stretching of the
ulnar nerve (also known as the “funny bone” nerve), which can cause numbness or
tingling in the ring and small fingers, pain in the forearm, and/or weakness in the hand.
The ulnar nerve runs in a groove on the inner side of the elbow.
18
The peroneal nerve originates in the sciatic nerve and supplies nervous energy
and stimulation to the calf and foot. Neuropathy is a general term denoting functional
disturbances and pathological changes in the peripheral nervous system.
34
inspection. No edema is present.” Dr. Robbins assessed fibromyalgia and refilled
plaintiff’s “meds.” She noted that she would try to reschedule plaintiff’s lower extremity
nerve conduction studies, although the record shows that the nerve conduction study
had already been repeated successfully.
On August 31, 2012, plaintiff saw Kathleen Robbins, M.D., for a one-month
medication check (Tr. at 576-578). “Pain stable on current meds.” The results of
physical exam consisted of the following: Overall appearance is ill appearing; dental
pain. Dr. Robbins assessed fibromyalgia and refilled plaintiff’s “meds”. She assessed
dental abscess and prescribed antibiotics.
On September 11, 2012, plaintiff had a pre-op cardiac stress test (Tr. at 626627). Plaintiff exercised for one minute and achieved a heart rate of 110 beats per
minute. Her myocardial perfusion imaging was “abnormal.”
On October 4, 2012, plaintiff saw Kathleen Robbins, M.D., for a follow up (Tr. at
573-575). Plaintiff reported that her back pain had gotten worse, was severe. She had
numbness in her extremities. She reported pain in all of her joints. Plaintiff said she
was “[i]n tears at times due to pain. Took knee braces back because they were falling
down.” Plaintiff described her headaches as severe and worsening. The results of her
physical exam consisted of “overall appearance - normal; lumbar spine - tenderness.”
Dr. Robbins assessed back pain. “Medications refilled. May need further imaging
studies. Will consider long-acting pain medications.” She assessed fibromyalgia,
“stable on current medications.” She assessed arthralgia (joint pain) for which she told
plaintiff to “continue current medications.”
35
That same day plaintiff saw cardiologist, Zubair Khan, M.D., for a follow up (Tr. at
691-692). Plaintiff reported occasional chest pain, lasting 5 to 6 seconds, and
shortness of breath. Plaintiff said she was able to walk up to 1 to 2 blocks on level
ground at a regular pace with no shortness of breath. “Patient denies any problems
with orthopnea, paroxysmal nocturnal dyspnea, ankle swelling, presyncope or
syncope.”19 Plaintiff denied dysphagia (difficulty swallowing), muscle or joint pains,
stiffness, swelling, limitation of movement, presyncope (lightheadedness), syncope
(fainting), weakness, numbness, or tingling (Tr. at 692). Plaintiff said she had been
taking her medication regularly without side effects. “Cardiovascular stress test was
performed on 09/11/12 which reveals size is small, severity is moderate, location of
defect is the apical wall, type of defect is periinfarction ischemia, EF of 59%.” (ejection
fraction, see footnote 14 on page 24). Echocardiogram performed on 08/02/12
revealed normal LV [left ventricular] function, no significant valvular stenosis [narrowing]
or regurgitation,20 no pericardial effusion [fluid around the heart].” On exam plaintiff was
noted to be comfortable, in no acute distress, her heart sounds were normal, her lungs
were normal with no wheezes or crackles, she had normal pulses and no edema. She
was assessed with unstable angina. Dr. Khan “encouragel[d] patient to start a
structured exercise program. Patient was also instructed to maintain a low sodium, low
19
Shortness of breath when lying flat; attacks of severe shortness of breath and
coughing that generally occur at night, usually awakening the person from sleep;
lightheadedness; fainting
20
Regurgitation occurs when blood flows back through a heart valve as the leaflets
are closing or blood leaks through the leaflets when they should be completely closed.
36
fat, low carbohydrate diet. . . . Patient is in a 4-step program to quit smoking.”
Plaintiff’s medications were continued with no changes.
On October 9, 2012, plaintiff saw Philip Kurle, M.D., a neurologist (Tr. at 538541). Plaintiff reported that she had had a migraine “about every day for the past
couple of months.” Plaintiff reported an “episode” a couple weeks earlier during which
she “got real hot then cold then dizzy.” She described her migraine pain as a needle
going through her eyeball. Plaintiff said Topamax made her moody and confused.
“The patient has been started on a fentanyl patch [narcotic], but she does not feel that
this has helped her insofar as her pain. She has ongoing neck and back pain. She is
still using a lot of percocet [narcotic].” On exam plaintiff was pleasant but tired
appearing, she was in no physical distress, she was alert and oriented with normal
speech, her affect was somewhat depressive. She was assessed with “other forms of
migraine, without mention of intractable migraine with status migrainous”, fibromyalgia,
other malaise and fatigue, unspecified back pain, and “unspecified abnormal function
study of brain and central nervous system.” Dr. Kurle ordered a follow up MRI of the
brain and blood work.
On November 2, 2012, plaintiff saw Kathleen Robbins, M.D., for a one-month
medication check (Tr. at 570-572). “Having severe migraines. Waiting to hear back
from Dr. Kurle’s office. He started her on Methylin [central nervous system stimulant]
but it isn’t being covered and she can’t afford it. She is up and doing more with it.”
Plaintiff reported that she could not focus well. She reported neck pain. “Not sure if
Duragesic patches are helping but feels she may need to give it more time.” The
37
results of plaintiff’s physical exam consisted of tenderness in her cervical and lumbar
spine, and “overall appearance - normal.” No other exam or observations were noted.
Dr. Robbins assessed fibromyalgia and told plaintiff to continue her “current
medications.” She assessed “arthralgia - stable.” She assessed neck pain and told
plaintiff to continue her duragesic patches for now.
On November 8, 2012, plaintiff had an MRI of her brain, which was unchanged
compared to her last MRI on December 30, 2010 (Tr. at 551-554, 588-589, 703). Dr.
Kurle wrote, “Findings consistent with the patient’s history of migraines. Also signs of
chronic sinus congestion. All of which is unchanged from previous studies.” Plaintiff
also had blood work which showed elevated blood sugar, elevated liver enzymes, and a
negative rheumatoid factor (Tr. at 555-556).
On December 6, 2012, plaintiff saw Kathleen Robbins, M.D., for a one-month
medication check (Tr. at 567-569). “Doesn’t feel like Fentanyl patches are working.
Sometimes get nauseated with meds but not new.” Plaintiff’s complaints consisted of
blood in stool, constipation, nausea, headache, skin lesion, back pain and nausea. The
physical exam consisted of the following: overall appearance - normal; abdominal
tenderness; tenderness in cervical and lumbar spine; 2 lesions on plaintiff’s shoulder
blade. Dr. Robbins assessed fatigue. “Medications refilled.”
On January 3, 2013, plaintiff saw Kathleen Robbins, M.D., for a one-month
medication check (Tr. at 564-566). Plaintiff said it was hard to walk due to pain and
“needles” in her feet. “Stable on Ritalin for attention deficit.” Plaintiff reported difficulty
concentrating, back pain, joint pain, neck pain and myalgia (muscle pain). Plaintiff’s
38
physical exam consisted of the following: Overall appearance - normal; extremities
negative for edema; cervical spine - tender; lumbar spine - tenderness. Dr. Robbins
assessed fibromyalgia and refilled plaintiff’s Ritalin.
On January 16, 2013, plaintiff saw Robert Shemwell, DPM, to establish care (Tr.
at 558). Plaintiff complained of pain, burning and numbness in her feet. “She takes a
lot of medicine. . . . Upon examination she has all the symptoms of neuropathy. I am
referring Patricia back to Dr. Robbins to treat her for a systemic condition and put her
on a medicine for that.”
On January 17, 2013, plaintiff saw Kevin Byrne, D.O., after having been referred
by Dr. Robbins due to elevated liver function tests (Tr. at 644-645). Plaintiff reported
smoking 1/2 to 1 pack of cigarettes per day and occasional alcohol use. She reported
the following symptoms: chills, depression, dizziness, forgetfulness, loss of sleep,
nervousness, chest pain, irregular heart beat, poor circulation, rapid heart beat, swelling
of ankles, varicose veins, bowel changes, constipation, nausea, stomach pain,
shortness of breath, shortness of breath while lying down, cough, and wheezing. On
exam plaintiff was noted to be well appearing, in no distress, fully oriented, with normal
mood and affect. Her neck was nontender, her cardiac exam was normal, her lungs
were clear, her abdomen was nontender with normal bowel sounds, and she had no
edema or varicosites in her legs. She was assessed with abnormal liver function study.
The plan simply said, “Dr. Robbins.”
That same day she saw Philip Kurle, M.D., a neurologist, for a follow up on her
migraines (Tr. at 699-702). Plaintiff’s caretaker came with her. “Patient states the
39
migraines have been terrible. Patient states when people talk fast, she has difficult[y]
keeping up and understanding. She becomes confused and ends up with a migraine.”
Plaintiff indicated that her peripheral neuropathy throws off her balance when she walks
and that she “still experiences episodes of dizziness.” Plaintiff reported that the
Topiramate “which had been tried previously had caused mood changes and other
major side effects.”
Number of other anti-migrainous medications have been ineffective as well. The
patient does feel that the riboflavin that she had been taking in the past may
have been of some moderate benefit for her migraines. She was not however
able to afford this. We have not yet been able to get this supplement for her.
She feels, however, that she would probably be able to afford it.
The patient continues to complain of diffuse widespread pain affecting her entire
body. The patient continues to feel that, in sum, her pain remains 7-9/10 most of
the time. Overall, I have felt her symptoms are most suggestive of fibromyalgia.
She has chronic fatigue. She has a prior diagnosis of attention deficit disorder,
but I am giving her methylphenidate [Ritalin] for both of these issues. She feels
that it is of moderate benefit for her alertness during the day. She feels however,
that probably her other medications are contributing to ongoing somnolence.
She is using Lyrica, and feels that it is of moderate benefit. She does however,
think that it is less effective over time. She feels that it may be contributing to
ankle edema. She brought in some pictures of her significantly swollen ankles.
She has been on some furosemide [also called Lasix, a diuretic] for this. It is not
a problem for her today.
The patient is taking hydrocodone/acetaminophen up to three times a day as
needed. . . .
The patient continues to complain of fairly severe pins and needles burning and
tingling in her feet bilaterally. She has previously had an EMG study performed
by Dr. Sudhir Batchu of neurology. This had demonstrated some mild
dysfunction of the tibial and peroneal nerves, potentially consistent with a distal
sensory polyneuropathy. The etiology of this would be idiopathic21 at present.
21
Relating to or denoting any disease or condition that arises spontaneously or for
which the cause is unknown.
40
She has been to see a podiatrist since the last visit. She states that he
“confirmed” that she has a polyneuropathy. It sounds as if he confirmed this
based on physical examination (which she said was relatively brief). I have
found mixed physical exam findings, suggestive of but not definitive for a
polyneuropathy.
The patient has had some significantly elevated liver function studies. . . . I
talked to the patient about this issue, and advised her to minimize her use of
medication such as Percocet [narcotic] which contains acetaminophen. . . .
Plaintiff was described as pleasant and in no apparent distress, even though she
described her constant pain as a 7-9 out of 10. “It was a little difficult to pin the patient
down, again, in regards to sensation in her feet. Overall, however, I could not
demonstrate definitive distal sensory shading for pinprick or temperature. That is to say
that the patient felt that pin and cold metal applied to the upper legs and calves felt
about the same as this stimuli when applied to the feet. There was some degree of
moderately diminished vibratory sense. Romberg22 testing is negative.” Plaintiff’s gait
was described as slightly wide-based and unsteady. She was not able to tandem
walk.23 Dr. Kurle prescribed Zonisamide (anticonvulsant) and refilled plaintiff’s Vitamin
B-2 (Riboflavin). He told her to return in four months.
On January 22, 2013, plaintiff’s lab work was positive for the Hepatitis C antibody
(Tr. at 651). During the administrative hearing on August 27, 2013, it was confirmed
that plaintiff has not received any treatment for Hepatitis C (Tr. at 718).
22
A positive Romberg sign occurs when a patient becomes unsteady when standing
with eyes closed. This implies a severe defect i postural sensation in the lower
extremities.
23
A method of walking where the tows of the back foot touch the heel of the front foot
at each step.
41
On February 1, 2013, plaintiff saw Kathleen Robbins, M.D., for a one-month
medication check and “needs handicap placard - unable to walk 50 feet without resting
due to arthralgia and neuropathy.” (Tr. at 561-562). Plaintiff said she would like to
resume Wellbutrin due to depression and smoking. The physical exam section reads in
its entirety: “Overall appearance - normal; cervical spine - tender; lumbar spine tenderness.” Dr. Robbins assessed fibromyalgia. “Medications refilled.” Dr. Robbins
filled out the Missouri Department of Revenue form to get plaintiff a disabled tag for her
car by placing a checkmark by the following: “The person cannot ambulate or walk 50
feet without stopping to rest due to a severe and disabling arthritic, neurological,
orthopedic condition, or other severe and disabling condition.” (Tr. at 643).
On March 17, 2013, plaintiff saw Kevin Byrne, D.O., for a follow up consultation
on Hepatitis C (Tr. at 646-647). Plaintiff was noted to be a current every-day smoker.
On exam she was noted to be well appearing, in no distress, fully oriented, with normal
mood and affect. Her neck was nontender. Her heart exam was normal. Lungs were
clear. Abdomen was nontender. Plaintiff was assessed with Hepatitis C and was noted
to be “tolerating treatment,” although none was identified.
On August 6, 2013, plaintiff saw Philip Kurle, M.D., for a follow up (Tr. at 695698). Plaintiff continued to smoke and said she was trying to alternate cigarettes with
electronic cigarettes. Plaintiff reported that the neuropathy in her feet had been very
painful, her feet had been swelling and she had had difficulty walking. “Her migraines
have gotten worse. She has one at this time.” Plaintiff said her confusion was not as
bad as it used to be “unless she gets a lot that comes at her at once.” Plaintiff also
42
reported being very depressed. Plaintiff said that she has to care for her disabled
husband. She said the Lyrica had been helpful but “she is no longer convinced that it is
helpful.” She said her knees go out on her and she has come close to falling. Her back
was very painful and she was having trouble turning over at night. She had been using
electronic cigarettes. Plaintiff reporting sleeping a lot during the day. Her headaches
were worse in the summer. She had one for five days the previous week. “She is not
using anything to treat most of these headaches.” On exam Dr. Kurle wrote the
following: “Generally, Ms. Weber is a pleasant but tired appearing, somewhat obese,
48-year-old woman who appears at times to be in some degree of distress. She winces
as she tries to stand. She also winces as she lifts her arms. She is alert and oriented.
Her affect is somewhat blunted. At times during our discussion about her pain and her
overall situation, she became tearful. . . . There is some degree of give way weakness
on strength testing of the upper extremities, which the patient attributes to pain. Her
right elbow is particularly painful at present. Tinel’s taps were negative. Coordination
testing shows the patient to move very slowly, but her movements are accurate, for
instance on the fine finger testing and rapid alternating movement testing. Gait appears
vaguely antalgic but is otherwise reasonably well coordinated. Romberg testing is
negative.” Dr. Kurle told plaintiff to wean off Lyrica and he prescribed Cymbalta, he
gave her a trial of Rizatriptan (generic Maxalt) to use at the onset of a severe migraine,
and he recommended she get a criss-cross lumbar brace and different elbow braces.
For all other diagnoses he told her to continue the same treatment. He told her to
return in 4 months.
43
On August 28, 2013, Philip Kurle, M.D., completed interrogatory questions in
connection with plaintiff’s disability case (Tr. at 693-694). My initial observation is that
the handwritten answers do not appear to have been written by Dr. Kurle, although he
signed the form. He indicated that he has been treating plaintiff for migraines,
fibromyalgia, and neuropathy. She has had problems treating these migraine
headaches with medication. “Based upon your knowledge of Ms. Weber and her
condition would it be consistent with her condition that she would have headaches up to
three to four times per week?
Would it be consistent with her condition for her to
treat these headaches by getting into a dark room and lying down and taking
medications?
C.
.”
SUMMARY OF TESTIMONY
During the October 20, 2011, hearing before the Appeals Council remand,
plaintiff appeared pro se (Tr. at 764). She was advised of her right to representation
but elected to “go forward today and then -- and, you know, to see where it takes us”
(Tr. at 766). Plaintiff read over the documents waiving her right to a representative and
informing her that she could change her mind during the hearing, and signed those at
the beginning of the hearing (Tr. at 767-769). Plaintiff then testified as follows:
Plaintiff was 46 years of age (Tr. at 774). She had four biological children, ages
31, 23, 20, and 18 (Tr. at 774-775). None of them live with plaintiff now but they did off
and on after her alleged onset date of July 200824 (Tr. at 775). Plaintiff lives with her
24
Plaintiff subsequently amended her alleged onset date to July 2010 which is the
day she filed her Title XVI application.
44
husband in a mobile home that has a couple of steps in the front (Tr. at 776). If her
back goes out, sometimes it is tough getting up the stairs (Tr. at 776). They have to
park “a little bit away from the house” and she is out of breath by the time she reaches
the door (Tr. at 777). Plaintiff has a driver’s license with no restrictions (Tr. at 778).
She has a car but seldom drives because of her medication (Tr. at 778). When she has
to, she can drive the 40 miles to the hospital (Tr. at 779). Her husband usually does the
driving (Tr. at 779). Plaintiff’s husband is disabled due to emphysema (Tr. at 779). It
took about 2 hours and 15 minutes for plaintiff to get to the administrative hearing, but
she had to stop to go to the bathroom and to smoke (Tr. at 781). Her husband smokes
as well (Tr. at 781).
Plaintiff has a GED (Tr. at 783). She stopped going to school because she got
pregnant (Tr. at 783). She does not have any problems with reading, writing or math
(Tr. at 783). “If I read through, I don’t remember. Sometimes I can’t comprehend what
I read. Math is no problem. Sometimes, you know, I make mistakes like everybody,
but --” (Tr. at 784).
Plaintiff was living off her husband’s SSI disability income as well as her
daughter’s child support until she turned 18 and moved out (Tr. at 785). Plaintiff is
covered by Medicaid (Tr. at 785). Plaintiff last worked as a secretary/bookkeeper on
July 15, 2008, and lost that job when the company closed (Tr. at 786, 791). She
worked full time but did not start that job until the end of March or beginning of April that
year (Tr. at 787). Plaintiff thinks she may have looked for work after she lost that job,
but she does not remember (Tr. at 793-794). Plaintiff’s previous work was as a
45
secretary and a stay-at-home mother/ housewife (Tr. at 788). As a secretary, plaintiff
was “up and down,” she answered the phones, typed, used a computer, did some math
(Tr. at 788-789). It was different every day -- if she wanted to stand, she could stand; if
she wanted to sit she could sit (Tr. at 790).
Plaintiff can no longer work because she is on oxygen at night for sleep apnea,25
she gets severe migraines, and she gets confused and overwhelmed especially with
paperwork (Tr. at 795). Plaintiff gets poison ivy all the time and has to have steroids
two or three times a year for that (Tr. at 807). Plaintiff suffers from anxiety but does not
see any counselors or therapists (Tr. at 809). Plaintiff has been on Xanax for a long
time (Tr. at 809). Sometimes she gets sleepy but she does not have any other adverse
side effects from her anxiety medication (Tr. at 809). Plaintiff takes Percocet and
muscle relaxers and they both relax her (Tr. at 810). Some days plaintiff gets up after
taking her morning medication, some days she goes back to sleep (Tr. at 810). Her
night habits are off and on (Tr. at 810).
Plaintiff’s pain medication works (Tr. at 811). The Lidocaine patches help a lot
(Tr. at 811). Plaintiff has pain in her back, joints, neck, and hip (Tr. at 812). Her joints
are snapping (Tr. at 812). Both of her knees have given out (Tr. at 816). The pain is no
different when plaintiff is lying down (Tr. at 812-813). Plaintiff has about two bad days a
month when she does not want to get out of bed (Tr. at 814). When it is really bad, a
muscle spasm will last about 20 minutes (Tr. at 814). Methocarbamol helps her muscle
spasms (Tr. at 814). Plaintiff’s pain ranges from 2 or 3 to a 9 or 10 (Tr. at 815). During
25
Plaintiff’s sleep study was negative for sleep apnea.
46
the hearing she had been sitting for an hour when the ALJ asked her about that, and
she said that she took her medication before coming to the hearing (Tr. at 819).
Plaintiff can stand or walk for 30 minutes at a time, and she would be able to do that for
up to 2 hours per day (Tr. at 820).
Walking or anxiety cause plaintiff to be short of breath (Tr. at 822). Plaintiff has
no trouble with personal care (Tr. at 822). She cooks about twice a week, making
enough food for leftovers the other days (Tr. at 829, 830). She keeps a sink full of
water and bleach to put her dishes in (Tr. at 830). Everyone washes his own dishes
(Tr. at 830). Plaintiff does laundry, but her in-home aid helps her with that (Tr. at 830).
Plaintiff’s father, William Marshland, testified as well. Mr. Marshland does
plaintiff’s shopping (Tr. at 833). Plaintiff sometimes has to sit to wash dishes (Tr. at
835). Plaintiff can no longer mow her yard or care for her three dogs, her cat and her
parrot (Tr. at 835, 837). She feeds the dogs, but they run free (Tr. at 836). Sometimes
plaintiff will fax a paper to her father and ask him to read it and explain it to her (Tr. at
836).
During the August 27, 2013, hearing, plaintiff (who had secured representation
since her first hearing) testified; and Julie Bose a vocational expert, testified at the
request of the ALJ. Interrogatories were provided by medical expert Anne Winkler,
M.D., Ph.D., an internal medicine and rheumatology specialist.
1.
Plaintiff’s testimony.
At the time of the hearing plaintiff was 48 years of age and is currently 51 (Tr. at
718). She was 45 on her alleged onset date. Plaintiff went to school through 9th or
47
10th grade and earned her GED the year she was supposed to graduate (Tr. at 718).
Plaintiff is covered by Medicaid (Tr. at 733).
Plaintiff has migraine headaches four or five times a week (Tr. at 719). At the
time of the hearing she estimated she had already had 12 or 13 migraines that month
(Tr. at 719). It had been a bad month (Tr. at 719). On an average month she has
about 10 migraines per month (Tr. at 719). Sometimes when plaintiff gets a migraine
she lies down or she tries to take what medicine she can (Tr. at 720, 731). She falls
asleep and wakes up a couple hours later (Tr. at 720-721). Light, noise and movement
affect her during a migraine (Tr. at 721). Lying down is not enough to get rid of her
migraine, she has to take a nap (Tr. at 733). Her concentration is poor during a
migraine (Tr. at 721). Sometimes when she gets a migraine she just goes around
complaining about it because it hurts (Tr. at 731). When she does not lie down during a
migraine, she sits in a chair and then goes to bed early (Tr. at 731). Dr. Kurle gave
plaintiff a new medication26 for migraines but she had not had a chance to use it yet so
she did not know whether it would work (Tr. at 732). She said her caretaker had picked
it up the day before (Tr. at 732). The last medication she tried for migraines gave her
breathing problems and she passed out, fell and woke up on the floor (Tr. at 732).
Plaintiff had been prescribed Tramadol but she could not afford the $27 and her
insurance would not cover that cost (Tr. at 732).
26
Dr. Kurle’s record from August 7, 2013, states that he prescribed Rizatriptan
(generic Maxalt) to use at the onset of a severe migraine.
48
Plaintiff has issues with confusion but she does not know what causes it (Tr. at
721-722). She saw Dr. Adelman (a psychologist) twice in connection with her
application for Medicaid (Tr. at 733). He recommended that she get more treatment
which she did by talking to her friends, talking to a pastor, or talking to her family
members (Tr. at 734). Plaintiff’s kids are all adults and they come over to visit her (Tr.
at 735). Plaintiff takes Wellbutrin for depression and Ritalin for ADHD (Tr. at 736). The
Wellbutrin is also to help her cut down on smoking (Tr. at 737). She does not know
how much she smokes; she estimated that “it’s less than a pack a day, but --” (Tr. at
737). Plaintiff took Lyrica for a long time and she believes her body is now immune to it
(Tr. at 737). “The weight gain has really, really made me depressed. And the Lyrica is
a big part of that, they say.” (Tr. at 737).
Plaintiff lives with her husband, and they just got a temporary roommate to help
around the house (Tr. at 722). Plaintiff has someone from an agency come in to help
her with bathing, making the bed, cleaning the floors, doing laundry, preparing meals,
doing dishes, helping her with shopping and errands, and this has been going on for
several years (Tr. at 722). A nurse also comes in every two weeks to fill plaintiff’s
medication containers, take her vitals, and give her an allergy shot (Tr. at 722-723).
Plaintiff sees Dr. Robbins about once a month for pain management (Tr. at 723).
Plaintiff has pain in her joints and she drops things from time to time (Tr. at 723).
Plaintiff has been seeing a podiatrist for her feet -- she has a hard time walking on them
and cannot get out of bed without a walker (Tr. at 724). The pain in her feet is so bad
that she cannot stand it, it is unbearable (Tr. at 725). She has a lot of swelling in her
49
feet and ankles (Tr. at 725). Her doctors do not know what is causing the swelling (Tr.
at 725). One time plaintiff could not have testing done due to the swelling (Tr. at 725).
It hurts to lift a gallon of milk because of her joints and her back (Tr. at 726). On
a good day plaintiff can stand for 10 to 20 minutes (Tr. at 726). After that, her feet and
back hurt (Tr. at 726). Plaintiff has problems walking due to balance (Tr. at 726-727).
She can only walk about 80 feet due to breathing issues (Tr. at 727). She props her
feet up more than 50% of the time due to pain (Tr. at 729). Plaintiff testified that she
can no longer user her wrist braces and is waiting on a new prescription -- her old ones
no longer fit because she has gained so much weight27 (Tr. at 727).
Plaintiff has had problems with her heart but has not called the doctor about it
(Tr. at 738). She still has chest pains and breathing problems (Tr. at 738).
Plaintiff’s medications cause her to be tired (Tr. at 729). She has fallen asleep
sitting in a chair (Tr. at 730). Plaintiff does not sleep much at night, she is up and down
-- then she is tired and does not want to get up and wants to sleep during the day (Tr. at
730). Her medications also make her very thirsty (Tr. at 739-740).
2.
Medical expert testimony via interrogatories.
Plaintiff’s medically determinable impairments include new onset Hepatitis C,
mild chronic obstructive pulmonary disease, migrainous headaches, fibromyalgia,
possible carpal tunnel syndrome, minimal lumbar and cervical degenerative disc
disease, and stress urinary incontinence (Tr. at 670). None of these impairments meet
27
Plaintiff weighed 201 pounds on November 17, 2010, the day Dr. Kurle
recommended she wear wrist braces (Tr. at 489). On August 6, 2013, three weeks
before her administrative hearing, plaintiff weighed 200 pounds (Tr. at 696).
50
or equal a listed impairment (Tr. at 671). “However, new hepatitis C & if undergoing
treatment, it would be likely she would be unable to work even sedentary work until
treatment (approximately 1 year) is over due to side effects from hepatitis C treatment.”
(Tr. at 671).
Dr. Winkler found that plaintiff could lift up to 10 pounds frequently and 20
pounds occasionally (Tr. at 672). Plaintiff could sit for 4 hours at a time and for 8 hours
per day, stand for 3 hours at a time and for 6 hours per day, and walk for 3 hours at a
time and for 6 hours per day (Tr. at 673). She does not need a cane to ambulate (Tr. at
673). She can occasionally climb stairs; frequently balance, stoop, kneel, crouch or
crawl; but can never climb ladders or scaffolds (Tr. at 674). She can frequently reach
overhead and continuously reach in all other directions, handle, finger, feel, push or pull
(Tr. at 675). She can frequently use foot controls with either foot (Tr. at 675). She can
never work at unprotected heights; can occasionally work around moving mechanical
parts, humidity, wetness, dust, odors, fumes, pulmonary irritants, or extreme cold; and
she can frequently operate a motor vehicle or work around extreme heat (Tr. at 676).
She is capable of performing activities like shopping, can travel without a companion,
can ambulate without assistance, can walk a block at a reasonable pace on rough or
uneven surfaces, can use standard public transportation, can climb a few steps at a
reasonable pace with the use of a single hand rail, can prepare a simple meal, can care
for her personal hygiene, and can sort, handle or use papers and files (Tr. at 677).
51
3.
Vocational expert testimony.
Vocational expert Julie Bose testified at the request of the Administrative Law
Judge. Plaintiff’s past relevant work is secretarial, which is sedentary and semi-skilled
(Tr. at 741). It was not performed at the substantial gainful activity level, however, and
plaintiff therefore has no past relevant work (Tr. at 741).
The first hypothetical involved someone who could lift 20 pounds occasionally
and 10 pounds frequently; stand or walk 6 hours per day and 3 hours at a time; sit 8
hours per day and 4 hours at a time; no climbing scaffolds or ladders; occasional
climbing on stairs and ramps; frequently reach, operate foot controls, operate a motor
vehicle and be exposed to extreme heat; no work around unprotected heights;
occasional exposure to moving mechanical parts, humidity and wetness, dust, odors,
fumes, pulmonary irritants and extreme cold; limited to understanding, remembering
and carrying out simple instructions consistent with unskilled work (Tr. at 742).
If the person could perform semi-skilled work, the person could do secretarial
work; however, with the limitation of unskilled work, secretarial work could not be done
(Tr. at 743). The person could work as a counter clerk, DOT 249.366-010, light,
unskilled, with 2,600 to 2,700 positions in Missouri and 106,309 in the country; labeler,
DOT 920.587-014, with 1,100 to 1,200 in Missouri and 94,684 in the country; or mail
clerk, DOT 209.687-026 with 1,300 to 1,400 in Missouri and 56,017 in the country (Tr.
at 744).
The second hypothetical was the same as the first except the person would be
limited to sedentary work instead of light, i.e., lifting up to 10 pounds maximum,
52
standing or walking 2 hours per day, and sitting 6 hours per day with a sit/stand option
every 30 to 60 minutes while staying on task (Tr. at 744). Such a person could work as
a call-out operator, DOT 237.367-014, with 1,300 to 1,400 in Missouri and 45,479 in the
country; a document preparer, DOT 249.587-018, with 11,100 to 11,200 in Missouri and
292,166 in the country; or an addresser, DOT 209.587-010, with 1,400 to 1,500 in
Missouri and 120,892 in the country (Tr. at 744-745).
The third hypothetical was the same as the second except the person could not
walk more than 50 feet at a time (Tr. at 745). This additional walking limitation would
not affect the person’s ability to perform those same three sedentary jobs (Tr. at 745746).
The fourth hypothetical involved a person who could sit for a total of 4 hours per
day and stand or walk for 2 hours per day (Tr. at 746). The person could not work full
time (Tr. at 746). If the person would be suffering from a migraine headache 5 to 12
days per month causing him to have to lie down a couple of hours during a work day,
the person could not work (Tr. at 746-747). If the person would consistently miss two
days of work per month, he could not work (Tr. at 747).
The final hypothetical was the same as the second except the person could only
occasionally finger, feel, handle or reach -- such a person could not work (Tr. at 747748). In order to perform the sedentary unskilled jobs listed above, the person would
need to have concentration, persistence and staying on task approximately 85% of the
time (Tr. at 749). A document preparer has no contact with the public (Tr. at 749). A
call-out operator does (Tr. at 749). A document preparer requires no contact with
53
coworkers (Tr. at 750). An addresser requires no contact with coworkers (Tr. at 750).
All of these positions require reading, writing and math at the level of 4th grade through
8th grade (Tr. at 750).
V.
APPEALS COUNCIL REMAND AND FINDINGS OF THE ALJ
The Appeals Council entered an order vacating the first decision of the ALJ and
remanding the case on January 18, 2013 (Tr. at 63-65). The Appeals Council directed
the ALJ to (1) evaluate plaintiff’s mental impairment in light of the opinion of Steven
Adelman, Psy.D., and plaintiff’s testimony regarding confusion, forgetfulness, trouble
spelling small words, poor memory and fluctuating moods; (2) reevaluate plaintiff’s
allegation of worsening migraine headaches.
Administrative Law Judge Carol Boorady entered her opinion on November 4,
2013 (Tr. at 20-35).
Step one. Plaintiff has not engaged in substantial gainful activity since her
alleged onset date (Tr. at 22).
Step two. Plaintiff has the following severe combination of impairments: right
peroneal axonal neuropathy, mild chronic obstructive pulmonary disease, migrainous
headaches, fibromyalgia, possible carpal tunnel syndrome, minimal lumbar and cervical
degenerative disc disease, history of dilated cardiomyopathy, Hepatitis C, major
depressive disorder, and panic disorder (Tr. at 22). Plaintiff’s attention deficit disorder
is controlled with medication and is therefore not a severe impairment (Tr. at 23).
Step three. Plaintiff’s impairments do not meet or equal a listed impairment (Tr.
at 23-25).
54
Step four. Plaintiff retains the residual functional capacity to perform sedentary
work except she can only perform minimal walking or standing so that she is not
walking more than 50 feet at a time; she needs to alternate between sitting and
standing every 30 to 60 minutes while staying on task; she can never climb ladders or
scaffolds or work around unprotected heights; she can occasionally climb stairs or
ramps, use foot controls, and have exposure to moving mechanical parts, humidity,
wetness, dust, odors, fumes, pulmonary irritants and extreme cold; she can frequently
reach with the upper extremities, operate a motor vehicle, and have exposure to
extreme heat. She is limited to occupations that require her to understand, remember,
and carry out only simple instructions consistent with unskilled work (Tr. at 25). With
this residual functional capacity, plaintiff cannot perform any past relevant work (Tr. at
34).
Step five. Plaintiff is capable of performing other jobs in significant numbers
such as call out operator, document preparer, or addresser (Tr. at 34-35).
VI.
CREDIBILITY OF PLAINTIFF
Plaintiff argues that the ALJ erred in finding that plaintiff’s testimony was not
credible. First I will address plaintiff’s specific complaints.
1.
Plaintiff takes issue with the ALJ’s reliance on plaintiff’s father’s Function
Report - Third Party dated August 17, 2010, with respect to whether plaintiff needed
help with cooking. However, on October 11, 2011 -- 14 months after the Third Party
Function Report was completed -- plaintiff testified that she cooked about twice a week,
55
making enough to have leftovers the other days. Therefore, it is irrelevant what
plaintiff’s father reported in 2010.
2.
Plaintiff cites to the statements of an employee of Independent Living
Resources Center and an LPN with regard to whether plaintiff is capable of performing
activities of daily living. Those documents are dated August 23, 2013, and August 26,
2013; however, plaintiff alleges that she became disabled more than three years before
that. During the intervening time, as the ALJ pointed out, plaintiff was on her roof
cleaning gutters, and she admitted that she was able to drive when necessary, cook
twice a week, do some housework, do dishes and do laundry. The ALJ also accurately
pointed out that during the same month these documents were prepared in connection
with plaintiff’s disability case, she told her doctor that she was caring for her disabled
husband.
3.
Plaintiff complains about the ALJ’s reliance on plaintiff’s statement to her
doctor that she cared for her disabled husband, pointing out that plaintiff said in a
Function Report that she and her husband help each other. However, the ALJ was
entitled to rely on plaintiff’s statement to a doctor in connection with treatment of her
impairments when that conflicted with plaintiff’s statement in an administrative report in
support of her attempt to collect disability benefits.
4.
Plaintiff complains about the ALJ’s reliance on plaintiff’s getting up on her
roof to clean gutters -- “it should be noted that Plaintiff was unsuccessful in this venture
and suffered a fall and injury.” However, plaintiff’s fall was not caused by her inability to
do that chore, her fall was caused by a branch breaking.
56
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. 1984). Social Security Ruling 96-7p
encompasses the same factors as those enumerated in the Polaski opinion, and
57
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 in part as follows:
The claimant’s daily activities are not consistent with her allegations that she has
been unable to work. At the first hearing, the claimant admitted that she could sit
for 60 minutes at a time and could lift five to ten pounds. She also stated at that
time that on a typical day she would do some housework, prepare meals, and do
dishes and laundry. She also reported at the time she filed her application that
she could drive and go out alone and that she was able to pay bills and handle
money. She reported visiting family and going to the post office regularly as well,
and denied difficulty with memory, completing tasks, understanding, following
instructions, using her hands or getting along with others. In fact, in October
2010, the claimant was on her roof, cleaning gutters while using a branch to
balance. The claimant’s father also reported at the time of the claimant’s
application that the claimant was able to perform her own personal care and
prepare her own meals. At the second hearing, the claimant testified that she
gets help around the house from independent living services including chores
meal preparation, dishes, shopping and errands. However, she reported to her
treating doctors as recently as August 2013 that she provided care for her
disabled husband.
I have also considered the claimant’s allegations as to the duration, frequency
and intensity of her symptoms, as well as precipitating and aggravating factors
as noted above, but the claimant’s medical treatment, the observations of
medical professionals and her own admissions regarding her daily activities
undermines her claims of severe symptoms keeping her from doing more than
very minimal sitting, or from being able to concentrate. As for medications, the
claimant has been on a variety of mental health medications, inhalers and pain
medications, but many of these appear to have been prescribed in response to
subjective complaints rather than objectively verifiable symptoms. As for
treatment other than medication, the evidence shows that the claimant has not
been hospitalized, undergone surgery or required any type of outpatient therapy
58
since her alleged onset date. Overall, these factors further erode the credibility
of the claimant’s subjective complaints.
(Tr. at 31).
PRIOR WORK RECORD
Plaintiff has almost no earned income and listed “stay at home mother/
housewife” as her occupation on many of her medical forms. She left her last job when
the company was sold, not due to any impairments. This factor suggests that plaintiff is
not employed for a reason other than her impairments and supports the ALJ’s credibility
determination.
DAILY ACTIVITIES
As mentioned above, after her alleged onset date plaintiff was on her roof
cleaning gutters. Three years after her alleged onset date she told her doctor that she
had to care for her disabled husband. There is really not a substantial amount of
evidence that plaintiff’s daily activities are consistent with the ability or inability to
perform substantial gainful activity.
DURATION, FREQUENCY, AND INTENSITY OF SYMPTOMS
Plaintiff consistently reported very severe and frequent symptoms that were not
always confirmed by the medical evidence.
Back pain:
An MRI dated May 7, 2010, showed only minimal disc bulge. On May 27, 2010,
she was nontender over her lumbar spine. On August 12, 2011, plaintiff described her
back pain as “bad.” On September 22, 2011, plaintiff had no tenderness on palpation,
59
no muscle spasm, and no costovertebral angle tenderness during a pre-operative
physical. On June 29, 2012, Dr. Robbins observed lumbar spine tenderness. On
August 2, 2012, plaintiff reported back pain but Dr. Robbins found no pain on
inspection. On October 4, 2012, plaintiff said her back pain had gotten worse and was
now severe. She said she was in tears at times due to pain. However, on exam, the
only abnormality was tenderness in her lumbar spine; her fibromyalgia was found to be
stable. On November 2, 2012, plaintiff had tenderness in her lumbar spine. On
December 6, 2012, she had tenderness in her lumbar spine. On January 3, 2013, she
had tenderness in her lumbar spine. On February 1, 2013, plaintiff had tenderness in
her lumbar spine.
Neck pain:
An MRI of her neck dated May 7, 2010, was normal. X-rays dated August 2,
2010, showed only mild degenerative disc disease. An MRI of her neck dated August
9, 2010, was “totally normal.” On October 1, 2011, plaintiff denied neck pain. On
February 28, 2012, plaintiff reported having more neck pain. On November 2, 2012,
plaintiff had tenderness in her cervical spine. On December 6, 2012, she had
tenderness in her cervical spine. On January 3, 2013, she had tenderness in her
cervical spine. On January 17, 2013, plaintiff’s neck was nontender. On February 1,
2013, plaintiff had tenderness in her cervical spine.
Headache:
On November 17, 2010, plaintiff described her headache pain as a 10/10 at
times. On June 3, 2011, she said her headache pain was a 5-6/10. On June 23, 2011,
60
plaintiff said she was applying for disability due to fibromyalgia and COPD, not because
of migraines. On September 27, 2011, while in the hospital on another matter,
plaintiff’s migraines were described as stable. Four days later she had a “mild
headache.” On October 6, 2011, plaintiff described her migraines as unchanged and
ongoing although they had improved to some degree. On February 28, 2012, plaintiff
reported frequent migraine headaches. On June 26, 2012, she said she was having
only 4 to 5 migraines per month but those were disabling. On August 2, 2012, plaintiff
reported a headache but on exam Dr. Robbins noted no pain on inspection. On
October 9, 2012, plaintiff reported that she had had a migraine about every day for the
past couple of months. Plaintiff’s MRIs confirmed the existence of migraines, according
to her neurologist. However, on January 17, 2013, plaintiff said she had been having
terrible migraines, that when people talk fast she would become confused and end up
with a migraine. She described her migraine headache pain as a 7-9/10 most of the
time, but was described as being pleasant and in no apparent distress. August 6, 2013,
was the only time in this entire record that plaintiff complained of actually having a
migraine headache while at a doctor’s appointment -- despite her description of her
migraine headache pain as a 7 to 10 out of 10 in severity, Dr. Kurle observed that
plaintiff appeared to be pleasant and “at times” to be in some degree of distress. This
does not seem to match plaintiff’s description as unbearable disabling migraine
headache pain. However, she did at times during the discussion become tearful (but
her right elbow was noted to be “particularly painful at present” suggesting that her
elbow was causing more distress than her alleged migraine headache at the time).
61
In addition, the ALJ noted that plaintiff had been treated for conditions which
were diagnosed based only on plaintiff’s subjective statements. For example, on
November 17, 2010, testing revealed good attention. However, on June 26, 2012,
plaintiff said she had always had some modest problems with attention and that
Attention Deficit Disorder runs in her family. With no observations or testing revealing a
deficit in attention, plaintiff was diagnosed with Attention Deficit and was put on Ritalin.
Not surprisingly, on January 13, 2013, plaintiff’s attention deficit disorder was noted to
be stable. There is no other evidence of Attention Deficit Disorder; however, plaintiff
was kept on Ritalin based on her statement that the disorder runs in her family.
DOSAGE, EFFECTIVENESS, AND SIDE EFFECTS OF MEDICATION
It is undisputed that plaintiff’s list of medications is long, and that she consistently
reported myriad side effects with almost every medication she was ever prescribed. No
doctor ever observed any of the alleged side effects, however, and on June 26, 2012,
plaintiff said she thought the symptoms she originally attributed to side effects were
probably due to reasons other than her medications. This suggests plaintiff may have,
on other occasions, incorrectly assumed that medications were causing side effects.
On November 2, 2012, plaintiff said that Methylin was working and she was up
and doing more with it, but that she could not afford it. She continued to smoke,
however. On January 17, 2013, plaintiff said the Riboflavin was working to help her
migraines, but she could not afford it -- but she continued to purchase cigarettes. There
was never any reason stated for an inability to afford medication. In fact, one of the
prescriptions plaintiff claimed not to be able to afford cost $27 according to the record;
62
yet plaintiff continued to finance her daily smoking habit during the entire length of this
record, against medical advice.
6.
FUNCTIONAL RESTRICTIONS
Other than after surgery or an acute injury, plaintiff’s activities were not restricted
by her doctors. In fact, Dr. Khan encouraged plaintiff to begin a structured exercise
program.
B.
CREDIBILITY CONCLUSION
Plaintiff’s credibility is a difficult question. The Polaski factors above do not
clearly support or detract from the ALJ’s credibility determination. In addition, there are
other instances in the record suggesting an exaggeration of symptoms or their severity.
For example, on October 4, 2012, plaintiff told Dr. Robbins that her pain was severe,
she had pain in all of her joints, and she was in tears at times due to pain. That same
day she saw Dr. Kahn and denied muscle or joint pain and stiffness. Plaintiff’s
neurologist indicated that it was a little difficult to pin plaintiff down as far as her
description of her symptoms of sensation in her feet -- his testing did not match her
description of her symptoms. And plaintiff’s description of practically being bed-ridden
due to her pain contradicts her decision to climb on top of her roof to clean her gutters.
The substantial evidence standard used by the court in a disability appeal
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.” Jernigan v. Sullivan, 948 F.2d 1070, 1073 n. 5 (8th Cir. 1991); Clarke v.
63
Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988). Therefore, because the evidence
supports the ALJ’s finding, even though it may also support an opposite finding, I must
affirm the ALJ’s credibility determination.
VII.
RESIDUAL FUNCTIONAL CAPACITY
Plaintiff argues that the ALJ erred in failing to give controlling weight to the
opinion of plaintiff’s treating physician, Kathleen Robbins, D.O., and her treating
neurologist, Philip Kurle, M.D. On November 21, 2010, Dr. Robbins completed a
Medical Source Statement and found that plaintiff could not sit for more than 4 hours in
an entire workday. Her other findings do not appear to be relevant to the outcome, so I
will limit my discussion to this one functional restriction.
A treating physician’s opinion is granted controlling weight when the opinion is
not inconsistent with other substantial evidence in the record and the opinion is well
supported by medically acceptable clinical and laboratory diagnostic techniques. Reed
v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005); Ellis v. Barnhart, 392 F.3d 988, 998 (8th
Cir. 2005). If the ALJ fails to give controlling weight to the opinion of the treating
physician, then the ALJ must consider several factors to determine how much weight to
give the opinion including length of the treatment relationship and the frequency of
examination; nature and extent of the treatment relationship; supportability, particularly
by medical signs and laboratory findings; consistency with the record as a whole; and
other factors, such as the amount of understanding of Social Security disability
programs and their evidentiary requirements or the extent to which an acceptable
64
medical source is familiar with the other information in the case record. 20 C.F.R.
§§ 404.1527, 416.927.
Not much discussion is needed with respect to the opinion of Dr. Robbins. Her
medical records were typically no more than a line or two long, she rarely recorded any
observations or findings, she rarely performed any examination, her assessments
frequently were unrelated to any complaint or observation, and in no record prepared by
Dr. Robbins does plaintiff ever complain of difficulty sitting, exhibit any difficulty with
sitting, or have any test results which would suggest a difficulty sitting. Furthermore, in
a Function Report prepared by plaintiff shortly before Dr. Robbins completed this
Medical Source Statement, plaintiff said that her impairments do not affect her ability to
sit. The ALJ properly gave no weight to the opinion of Dr. Robbins.
Dr. Kurle, plaintiff’s neurologist, signed interrogatory questions dated August 28,
2013, in which he agreed that plaintiff’s condition would be consistent with having
migraine headaches 3 to 4 times a week requiring her to lie down in a dark room. This
is significant because the vocational expert testified that if a person were to have a
migraine headache 5 to 12 days per month causing him to have to lie down a couple of
hours during a work day, the person could not work, and if the person were to miss 2
days of work per month, he could not work.
The ALJ had this to say about Dr. Kurle’s opinion:
[L]ittle weight has been given to the August 28, 2013 opinion of Phillip Kurle,
M.D., the claimant’s treating neurologist. Again, this opinion is not well
supported or consistent with the other substantial evidence in the case record.
This opinion is provided on a checkbox form submitted to the claimant’s
neurologist by the claimant’s attorney. Even if the claimant was having
65
headaches at the frequency noted by Dr. Kurle at the time he filled out this form,
the evidence does not support that the claimant has had them at this frequency
for a period of 12 months or longer. The claimant reported that her migraines
were worse over the summer of 2013, but that she was not taking medications
for them at that time.
(Tr. at 32).
I conclude that the ALJ’s finding with respect to Dr. Kurle’s opinion is not
supported by the evidence. Dr. Kurle treated plaintiff from November 17, 2010, through
the date of his opinion, or almost three years. He saw her regularly during that entire
time. He is a neurologist and treated her for migraine headaches, which is the subject
of his opinion. It is not as easy to find medical support for migraine headaches as
opposed to other conditions; however, Dr. Kurle found that plaintiff’s brain MRIs were
consistent with migraine headaches because the lesions in her brain can be (and he
believed were) caused by migraine headaches. Dr. Kurle’s opinion is consistent with
the record as a whole, because plaintiff complained to nearly all of her doctors of
frequent migraine headaches, whether those doctors were treating her for migraines or
not. This certainly spanned more than 12 months.
The ALJ’s observation that plaintiff did not take medication for her migraines
during much of this record, and she never went to the emergency room because of a
disabling migraine headache is noted; however, the record does reflect that plaintiff was
prescribed many medications but found them intolerable for one reason or another.28
The record also reflects that plaintiff did not go to the emergency room for anything,
28
I do not find plaintiff’s argument that she could not afford medications persuasive -plaintiff was covered by Medicaid during all of these years and she was able to finance
a very heavy smoking habit to the exclusion of purchasing prescription medications.
66
which is consistent with her lack of emergency room treatment for migraines. In fact,
plaintiff suffered a fractured fibula after falling off the roof of her house and did not go to
the emergency room until two weeks later, the only emergency room visit in the record.
Although Dr. Kurle’s opinion was provided on a check-mark form prepared by
plaintiff’s attorney and the answers to the questions do not appear to be in his
handwriting, he did sign the form indicating that he agrees with its contents. I find that
the substantial evidence in the record as a whole does not support the ALJ’s decision to
give little weight to the opinion of Dr. Kurle.
The vocational expert testified that someone likely to have a migraine 5 to 12
times per month requiring her to lie down in a dark room would not be able to work.
Because this testimony is consistent with the opinion of Dr. Kurle, I find that the ALJ
erred in finding plaintiff not disabled.
VIII.
CONCLUSIONS
Based on all of the above, I find that the substantial evidence in the record as a
whole does not support the ALJ’s finding that plaintiff is not disabled. Therefore, it is
ORDERED that the decision of the Commissioner is reversed. It is further
ORDERED that this case is remanded for an award of benefits.
ROBERT E. LARSEN
United States Magistrate Judge
Kansas City, Missouri
March 31, 2016
67
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?