Clark v. Colvin
ORDER denying plaintiff's motion for judgment and affirming the decision of the Commissioner. Signed on 8/29/16 by Magistrate Judge Robert E. Larsen. (Wilson, Carol)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
LISA A. CLARK,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Lisa Clark seeks review of the final decision of the Commissioner of
Social Security denying plaintiff’s application for disability benefits under Titles II and
XVI of the Social Security Act (“the Act”). Plaintiff argues that the ALJ erred in finding
that plaintiff can perform substantial gainful activity because the hypothetical relied on
by the ALJ was not consistent with the residual functional capacity assessment, and the
number of jobs available is not significant. I find that the substantial evidence in the
record as a whole supports the ALJ’s finding that plaintiff was not disabled before June
1, 2013. Therefore, plaintiff’s motion for summary judgment will be denied and the
decision of the Commissioner will be affirmed.
On August 24, 2011, plaintiff applied for disability benefits alleging that she had
been disabled since November 1, 1990. Plaintiff’s application was denied on
November 1, 2011. Plaintiff requested a hearing before an administrative law judge;
however, she withdrew that request due to incarceration and her hearing request was
dismissed on July 16, 2012. After her release, on April 30, 2013, plaintiff requested that
her claim be reopened. On May 13, 2013, plaintiff’s claim was reopened. On October
10, 2013, a hearing was held before an Administrative Law Judge. During the hearing,
plaintiff amended her alleged onset date to July 14, 2010, because she had filed
previous applications for disability benefits which were denied on July 13, 2010, by an
administrative law judge, thus barring any claim for disability prior to that date. On
December 17, 2013, the ALJ found that plaintiff became disabled on June 1, 2013, but
that she was not under a “disability” as defined in the Act prior to that date. On March
23, 2015, the Appeals Council denied plaintiff’s request for review. Therefore, the
decision of the ALJ stands as the final decision of the Commissioner.
STANDARD FOR JUDICIAL REVIEW
Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for judicial review of a
“final decision” of the Commissioner. The standard for judicial review by the federal
district court is whether the decision of the Commissioner was supported by substantial
evidence. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971);
Mittlestedt v. Apfel, 204 F.3d 847, 850-51 (8th Cir. 2000); Johnson v. Chater, 108 F.3d
178, 179 (8th Cir. 1997); Andler v. Chater, 100 F.3d 1389, 1392 (8th Cir. 1996). The
determination of whether the Commissioner’s decision is supported by substantial
evidence requires review of the entire record, considering the evidence in support of
and in opposition to the Commissioner’s decision. Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951); Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir. 1989). “The
Court must also take into consideration the weight of the evidence in the record and
apply a balancing test to evidence which is contradictory.” Wilcutts v. Apfel, 143 F.3d
1134, 1136 (8th Cir. 1998) (citing Steadman v. Securities & Exchange Commission, 450
U.S. 91, 99 (1981)).
Substantial evidence means “more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. at 401; Jernigan v. Sullivan, 948 F.2d 1070, 1073 n. 5
(8th Cir. 1991). However, the substantial evidence standard presupposes a zone of
choice within which the decision makers can go either way, without interference by the
courts. “[A]n administrative decision is not subject to reversal merely because
substantial evidence would have supported an opposite decision.” Id.; Clarke v.
Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988).
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:
Is the claimant performing substantial gainful activity?
Yes = not disabled.
No = go to next step.
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.
Does the impairment meet or equal a listed impairment in Appendix 1?
Yes = disabled.
No = go to next step.
Does the impairment prevent the claimant from doing past relevant work?
No = not disabled.
Yes = go to next step where burden shifts to Commissioner.
Does the impairment prevent the claimant from doing any other work?
Yes = disabled.
No = not disabled.
The record consists of the testimony of plaintiff and vocational expert Suzanne
Hullender, in addition to documentary evidence admitted at the hearing.
The record contains the following administrative reports:
The record shows that plaintiff earned the following income from 1975 through
(Tr. at 214-217).
Function Report Adult - Third Party
On October 10, 2011, plaintiff’s mother, Ruth Ann Clark, completed a Third Party
Function Report (Tr. at 258-266). Ms. Clark noted that she and plaintiff are together
almost 24 hours a day, every day. Plaintiff has to be reminded to bathe and shampoo
her hair, but she has no difficulty with any other personal care (Tr. at 259). Plaintiff
cannot do laundry very often because the washer is in the basement and she cannot
navigate the stairs. Plaintiff cannot pay bills, handle a savings account, or use a
checkbook or money orders because she has no concept of the value of money (Tr. at
261). Plaintiff attends church and Alcohols Anonymous (“AA”) meetings. Plaintiff has a
very short fuse, is very bossy. Her impairments affect her ability to lift, sit, walk, climb
stairs, squat, kneel, bend, stand, follow instructions, complete tasks, get along with
others, remember and concentrate. Plaintiff lost her job at Kingdom Projects because
she was “not a team player.”
On October 10, 2011, plaintiff completed a Function Report (Tr. at 267-274).
She described her day as napping, watching television, eating, helping her mother with
household chores, and going to AA meetings once a week. Plaintiff reported, as far as
her ability to handle money, “If I get it, I spend it.” (Tr. at 271).
SUMMARY OF MEDICAL RECORDS
On January 27, 2009, plaintiff was evaluated upon being taken in custody. She
reported smoking a pack of cigarettes per day for the past 28 years (Tr. at 327, 330,
342, 475-477). She reported asthma, joint pain, and a ruptured disc in her back (Tr. at
331, 477). A mental health intake screening was done, but no “immediate” mental
health referral was done; a routine mental health referral was done instead (Tr. at 331).
The following day she was observed to have a stiff gait (Tr. at 333). She was
prescribed Naproxen (non-steroidal anti-inflammatory). Plaintiff had lab work done and
tested positive for Hepatitis C (Tr. at 336). It was recommended that she exercise, lose
weight, and stop smoking (Tr. at 343, 345). The same day she had a mental status
exam and was noted to have good eye contact, normal speech, normal motor activity,
fair insight. She was described as cooperative with a low mood. She was anxious and
On February 10, 2009, plaintiff had a nurse encounter and reported not being
able to breathe at night causing her to awaken with panic attacks (Tr. at 457). A mental
status exam was performed and plaintiff was noted to have normal memory,
concentration, appearance, and affect with no suicidal ideation and no current
emotional distress. Plaintiff’s mental health records from Callaway Physicians and
Callahan County Hospital were requested.
On February 11, 2009, plaintiff saw a doctor who assessed degenerative disc
disease and told plaintiff to take Tylenol as needed for pain (Tr. at 346). The following
day plaintiff reported experiencing shortness of breath (Tr. at 346, 492). She was
scheduled for a pulmonary exam (Tr. at 347).
On February 18, 2009, plaintiff had a nurse encounter (Tr. at 457). “She has
many medical problems and seeking mental health to get her out of having to complete
treatment. She was explained the purpose of mental treatment. She is having some
anxiety, but it is situational.” Plaintiff’s mental status exam was normal as far as
memory, concentration, suicidal ideation, appearance, grooming, affect. She was
under no current emotional distress.
On February 26, 2009, plaintiff reported that she has sleep apnea and is
supposed to be using a CPAP1 (Tr. at 351, 497). She reported that she was having
difficulty breathing (Tr. at 497).
On March 2, 2009, plaintiff saw a doctor and reported having left shoulder pain
since a motor vehicle accident in 2008; she reported left hand numbness and sleep
apnea since 2008 (Tr. at 351). Plaintiff was on interferon for Hepatitis C. She
described her asthma as asymptomatic, even though she had not used any asthma
medications “for a long time” (Tr. at 490). On exam plaintiff had tenderness in her left
shoulder, but normal grip. She weighed 287 pounds. She was assessed with possible
capsulitis of the left shoulder and history of sleep apnea. Plaintiff was to be observed at
night with oxygen saturation measurements to be recorded every 2 (Tr. at 351). X-rays
Continuous positive airway pressure (“CPAP”) therapy is a common treatment for
obstructive sleep apnea. It includes a small machine that supplies a constant and
steady air pressure, a hose, and a mask or nose piece.
of the left shoulder and cervical spine were ordered. The doctor recommended that she
stop smoking and start exercising (Tr. at 491).
That same day she had a nurse encounter with regard to her mental health
treatment (Tr. at 458). “She has calm[ed] down with less anxiety, concerns, and fears
of entering drug treatment. She does not need mental health treatment nor
psychotropic medication at this time. She is requesting psychotropic medication to help
her with explosive attitude.” Plaintiff’s mental status exam was normal.
On March 3, 2009, plaintiff told the prison doctor that she had degenerative disc
disease (Tr. at 492). Plaintiff had no swelling or inflammation. She was told to continue
taking Tylenol as needed for pain and not to take Naproxen since she had no
On March 9, 2009, plaintiff reported that her “left hand is getting number all the
time.” (Tr. at 352, 498). Plaintiff had decreased grip in her left hand along with slight
On March 11, 2009, plaintiff continued to complain of inflammation in her joints
(Tr. at 354). The following day, records indicate that plaintiff continued to be evaluated
for her need for oxygen to prevent low oxygen saturation (Tr. at 355).
On March 12, 2009, plaintiff reported having had a motor vehicle accident in
2008 and having left shoulder pain, left hand numbness, and sleep apnea “since the
injury” (Tr. at 497). Plaintiff reported a history of Hepatitis C and said she was on
interferon for that. On exam plaintiff’s heart and lungs were normal, left shoulder
abduction (raising the arm at the side of the body) was 80 degrees (normal is 180
degrees), she had tenderness in the post deltoid area, her grip strength was normal. Xrays of the left shoulder and cervical spine were ordered.
On March 13, 2009, it was noted that plaintiff had periods of apnea with oxygen
saturation of 79% for one to two minutes at a time during sleep (Tr. at 355). That same
day, plaintiff complained of severe back pain -- “it was the bed I slept in in TCU last
night” (Tr. at 356, 502). Plaintiff’s gait was steady and she was able to get off and on
the exam table; therefore, the nurse determined that plaintiff’s pain was “not an
On March 16, 2009, plaintiff saw the prison doctor who assessed sleep apnea
based on her oxygen saturation levels of 79% during sleep as well as observations of
loud snoring and periods during which plaintiff appeared to stop breathing (Tr. at 357).
The doctor ordered a sleep study. The sleep study was scheduled for May 6, 2009;
however, plaintiff declined the sleep study (Tr. at 358).
On March 18, 2009, plaintiff had x-rays of her cervical spine which showed
degenerative changes at C5-6 with osteophyte formation and disc space narrowing as
well as evidence of paraspinous muscle spasms (Tr. at 357, 503). X-rays of her left
shoulder showed an old clavicle fracture and hypertrophic changes at the AC joint.
That same day plaintiff was seen by a nurse for mental health treatment (Tr. at
458). Plaintiff continued to complain of feeling depressed. “She continues to seek
medication for anxiety and depression.” Plaintiff reported having difficulty dealing with
drug treatment and the women in her unit. Her mental status exam was normal except
for an anxious affect. “Currently adjusting to being in treatment and prison.”
On March 20, 2009, plaintiff complained that she had seen the doctor about her
back pain and was told “there is no need for Naproxen because there is no
inflammation.” She had been put on Tylenol, but she complained that it was not helping
at all. Her back, hips and knees were causing her severe pain (Tr. at 359, 505). The
nurse observed that plaintiff had no swelling in her hips or knees, her gait was steady,
and she had full range of motion in her appendages. Therefore, she was told to
continue taking Tylenol for pain. Three days later plaintiff saw the doctor to review her
x-rays (Tr. at 360). The doctor told plaintiff to take Tylenol three times a day for three
months. On March 26, 2009, the doctor directed that plaintiff’s medical records from
University Physicians be faxed to the prison “regarding arthritis and ruptured disk.” (Tr.
at 361, 507). Those records were received on March 30, 2009 (Tr. at 362). On April 2,
2009, plaintiff saw the doctor who reviewed the records from University Physicians (Tr.
at 363). The records showed a fracture of her left hand on December 2, 2008; x-rays of
the lumbar spine showed degeneration; x-rays of the left hip were negative; and there
was an assessment of degenerative arthritis of the lumbar spine. The doctor assessed
degenerative arthritis of the lumbar spine and told plaintiff to continue taking Tylenol.
On April 6, 2009, plaintiff’s mother called the prison and spoke to a nurse about
plaintiff’s medical problems (Tr. at 363, 509). The nurse told plaintiff’s mother that due
to plaintiff’s Hepatitis C and other health issues, plaintiff was being started on an
APAP.2 (Tr. at 363).
CPAP (continuous positive airway pressure) devices are titrated to a single set
pressure setting by a sleep specialist after a CPAP titration study. The titration study is
conducted after a traditional in-lab polysomnogram test and is meant to find the exact
On April 21, 2009, plaintiff saw a nurse for treatment of Hepatitis C (Tr. at 365366). Plaintiff was told, among other things, to stop smoking, exercise, and “avoid high
doses of Tylenol.” (Tr. at 366). “For the remainder of your life, do not drink alcohol at
all, or only rarely, and speak to a physician prior to taking any new medications,
including over-the-counter medications such as nonsteroidal anti-inflammatory drugs”
(Tr. at 366-367).
On April 25, 2009, plaintiff saw a nurse and complained of severe pain in her
back (Tr. at 370-371, 516-517). “I have a herniated disc and it is horrible and I have
wanted a[n] x-ray since I got here in January. I need Naproxen and they will only give
me Tylenol because of Hep C. I really don’t care about the Hep C. I want Naproxen.”
Plaintiff’s gait was described as “slow and steady,” she had no discoloration on her
back. Plaintiff was told she could not have Naproxen, to continue taking Tylenol.
On May 6, 2009, plaintiff again refused to schedule a sleep study; she said she
“leaves in three weeks” (Tr. at 372, 504, 518).
On May 27, 2009, plaintiff was discharged from a 120-day drug treatment
program (Tr. at 657). Her aftercare/continuing recovery recommendations and relapse
prevention plans included “securing employment.”
There are no medical records for the next 13 months.
pressure needed to set the machine to eliminate apnea events during the night. On the
other hand, APAP therapy has two pressure settings: a low range pressure setting
(which is the minimum amount of pressure required to prevent apnea events), and a
high range pressure setting. APAP machines have a complex algorithm that detects on
a breath-by-breath basis what pressure the patient needs at that moment to prevent
apnea events. Never straying below the low-pressure setting nor above the
high-pressure setting, the APAP device finds the ideal pressure for any given moment.
On June 10, 2010, plaintiff saw Sarmistha Bhalla, M.D. (Tr. at 410). Plaintiff
reported being very irritable. She denied depression “but still has residual voices.”
Plaintiff’s mental status exam was normal except for auditory hallucinations. She was
assessed with major depressive disorder, recurrent, moderate. Risperdal
(antipsychotic) was prescribed.
July 14, 2010, is plaintiff’s amended alleged onset date.
On November 8, 2010, plaintiff saw Laura Morris, M.D. (Tr. at 427-429). Plaintiff
requested a refill of Flexeril (muscle relaxer) which she said helps her back pain.
Plaintiff had also been doing water aerobics which helped her back pain; however, she
said she could no longer do that because it was too expensive at the pool during off
season. Plaintiff said she had lost 18 pounds since the spring with Weight Watchers
but was frustrated with her weight. She requested a referral for bariatric surgery.
Plaintiff continued to smoke. Her physical exam was normal. “She smokes and I
strongly encouraged she proactively quit since this will impact her surgical candidacy
and healing profile. . . . Back pain - recommend increase activity, stretching exercises.
Refill Flexeril x1. Weight loss would certainly help.”
On December 22, 2010, plaintiff saw Sarmistha Bhalla, M.D. (Tr. at 404-409).
“Pt reports that last week the family celebrated their Christmas and it was stressful.
She has been doing fine otherwise. She has been having stable mood[s]. She is med
compliant and denies side effects. Still waiting on her disability.” No mental symptoms
were present. Plaintiff was observed to be cooperative with a normal mood and
appropriate affect, good eye contact, normal speech, local flow of thought, normal
thought content, no hallucination, no delusions, and well oriented. Her motor activity
was normal, insight and judgment were fair. Dr. Bhalla assessed major depressive
disorder, recurrent, moderate. Plaintiff was continued on Risperdal and Lexapro
On February 22, 2011, plaintiff saw Jack Wells, M.D., for cold symptoms (Tr. at
415-420). Plaintiff continued to smoke 1 1/2 packs of cigarettes per day. Plaintiff’s
“problem list” included obstructive sleep apnea “confirmed,” osteoarthritis “confirmed,”
and polysubstance abuse “confirmed.” During his exam, Dr. Wells noted that plaintiff
was cooperative with appropriate mood and affect. She was assessed with upper
respiratory infection and sinus infection and was prescribed antibiotics and Flexeril as
needed for spasm. She was advised to stop smoking.
On February 28, 2011, plaintiff was evaluated by Bryce Koelling, a chiropractor
(Tr. at 384-390). Her chief complaint was lower back pain, neck pain, and upper back
pain. Plaintiff rated her back pain a 6 out of 10. Her gait appeared normal. She
weighed 319 pounds. Her grip strength was normal. Plaintiff had decreased range of
motion in her cervical spine and decreased range of motion in her lumbar spine (exact
measurements were not provided) with moderate pain. Plaintiff had tenderness and
swelling in her shoulders and back. X-rays showed subluxation (a slight misalignment
of the discs) in the cervical, thoracic and lumbar spine. Dr. Koelling assessed lumbar
subluxation, lumbo-sacral area sprain/strain, cervical subluxation and thoracic
subluxation. Dr. Koelling designed a treatment plan involving cold packs, adjustments,
therapeutic exercises, and traction. Adjustments were performed during this visit.
On March 3, 2011, plaintiff saw Bryce Koelling, D.C., for adjustment (Tr. at 383).
Plaintiff rated her back pain a 5 out of 10.
On March 8, 2011, plaintiff saw Bryce Koelling, D.C., for adjustment (Tr. at 382).
She rated her back pain a 5 out of 10, aggravated by bending, lifting, walking and
prolonged sitting and relieved by lying down. Plaintiff had moderate pain in her left
shoulder and stiffness in her left elbow. Plaintiff was told to use cold packs for 20
minutes at a time twice a day. She was to have chiropractic adjustments twice a
month, traction to reduce disc inflammation and paraspinal muscle spasms, and to
perform therapeutic exercises at home.
On March 10, 2011, plaintiff saw Bryce Koelling, D.C., for adjustment (Tr. at
381). Plaintiff described her back pain as a 4.
On March 17, 2011, plaintiff saw Bryce Koelling, D.C., for adjustment (Tr. at
379). Plaintiff described her back pain as a 4. Plaintiff was told to use cold packs for
20 minutes at a time twice a day.
On March 24, 2011, plaintiff saw Bryce Koelling, D.C., for adjustment (Tr. at
378). Plaintiff described her back pain as a 4.
On April 7, 2011, plaintiff saw Bryce Koelling, D.C., for adjustment (Tr. at 377).
Plaintiff described her back pain as a 3 with treatment. She indicated that her pain is
relieved by lying down. Bending, lifting, walking and prolonged sitting worsen her
condition. Plaintiff had moderate pain in her left shoulder and stiffness in her left elbow.
On April 20, 2011, plaintiff saw psychiatrist Sarmistha Bhalla, M.D. (Tr. at 403).
“Pt reports that she has been doing fine. She has been having stable mood. She is
med compliant and denies side effects. Still waiting on her disability. She is tired of
borrowing from her mom. She reports that the only concern now is sleep disturbance.”
No mental symptoms were observed.
On May 3, 2011, plaintiff saw Bryce Koelling, D.C., for adjustment (Tr. at 376).
Plaintiff described her back pain as a 3 with treatment.
On May 10, 2011, plaintiff saw Bryce Koelling, D.C., for adjustment (Tr. at 375).
Plaintiff described her back pain as a 3 with treatment.
On June 23, 2011, plaintiff saw Sarmistha Bhalla, M.D. (Tr. at 399-402). “Pt
reports that she was doing fine but got 3 tickets for driving with revoked license and is
going to court next month. She still [has] stable mood but is stressed. She is med
compliant and denies side effects. Still waiting on her disability. She reports her mom
said that if she gets jail time she cannot live with her.” Plaintiff was assessed with major
depressive disorder, recurrent, moderate. Her GAF was 65. Plaintiff was continued on
her same medication.
On August 11, 2011, plaintiff saw Sarmistha Bhalla, M.D. (Tr. at 395-398). “Pt
reports that she was doing fine but got 3 tickets for driving with revoked license and
went to court and spen[t] 10 days now has been stressed as she feels no one is her
friend. She still [has] stable mood but is stressed. She has been denied of disability
again. She has not been taking risperdal and so was discontinued. She says she did
not like how it [made] her feel.” She was assessed with major depressive disorder,
recurrent, moderate, and polysubstance dependence in sustained full remission. Her
GAF was 60. Plaintiff was prescribed Abilify (antipsychotic), and she was told to
continue her other medications.
On September 29, 2011, plaintiff saw Jack Wells, M.D. (Tr. at 421-423). Among
other symptoms, plaintiff had a swollen, very painful right neck. During a review of
systems plaintiff reported neck pain and joint pain. On exam she was noted to be alert
and oriented, cooperative, with appropriate mood and affect. Plaintiff was assessed
with upper respiratory infection.
On October 12, 2011, plaintiff saw Sarmistha Bhalla, M.D. (Tr. at 391-394, 451454). Plaintiff reported that she was doing better. “Her court cases are gone and judge
did not send her to jail. Her anger is under control. She still [has] stable mood. She
has been denied of disability again and reapplied. She has not been taking risperdal
and so was discontinued. She is not even taking abilify and trazodone
[antidepressant].” Dr. Bhalla noted that no mental symptoms were present. Plaintiff
was assessed with major depressive disorder, recurrent, moderate, and polysubstance
dependence in sustained full remission. Her GAF was 65. She was prescribed
Lexapro and Ambien (treats insomnia). Risperdal, Abilify and Trazodone were
On October 21, 2011, plaintiff saw Jack Wells, M.D., requesting weight loss pills
(Tr. at 412-414, 704). “She states she has been getting amphetamines from another
provider, however she would like to get them from us because of billing issues. She
says they have helped her to lose weight and she has been sharing someone else’s
amphetamines as well. We instructed her that our practice does not include
amphetamine prescription for weight loss. We would be happy to manage her weight
loss should she want to register for an appointment so we could do a physical
examination, lifestyle evaluation, laboratory studies, and proceed. She elected not to
do that.” Dr. Wells’s clinical impression was “obesity, drug-seeking behavior.
Diagnosis: Patient was denied amphetamine medications and left.”
On November 1, 2011, Marc Maddox, Ph.D., reviewed plaintiff’s medical records
and found that her mental impairment is not severe (Tr. at 430-441). He found that she
has mild restriction of activities of daily living; mild difficulties in maintaining social
functioning; mild difficulties in maintaining concentration, persistence, or pace; and no
episodes of decompensation. In support of his findings, Dr. Maddox discussed
plaintiff’s psychological exam on July 27, 2009; her medical records which, despite a
diagnosis of major depressive disorder, reflect no mental symptoms through 2010 and
2011; in October 2011 she was doing better despite not taking most of her prescribed
medications; plaintiff’s doctor noted drug-seeking behavior after she requested
amphetamines and said she had been using someone else’s for weight loss, but left the
doctor’s office and declined any weight loss management treatment other than
amphetamines. Dr. Maddox noted that plaintiff alleged symptoms in virtually every
physical and mental domain which is inconsistent with the medical records.
On December 7, 2011, plaintiff saw Sarmistha Bhalla, M.D. (Tr. at 447-450).
Plaintiff reported she was doing better. Her anger was described as under control even
though she “got into it” with her mom a couple days earlier. Plaintiff had not been
taking any of her psychiatric medication. Dr. Bhalla observed that plaintiff had no
mental symptoms present. She assessed a GAF of 65, which was the highest it had
been during Dr. Bhalla’s treatment of plaintiff. Dr. Bhalla told plaintiff to take her
medication (Lexapro and Ambien) and follow up in 8 weeks.
On February 14, 2012, plaintiff saw Sarmistha Bhalla, M.D. (Tr. at 443-446). “Pt
reports that she thinks that she needs her risperdal as she is getting irritable. She was
in jail for driving while suspended. She has been denied of disability again and
reapplied. They want to start from scratch. She is sleeping and eating well. She
reports that she got involved in shop lifting and again another legal case pending on
her.” Dr. Bhalla noted that plaintiff had no mental symptoms present. During a mental
status exam, plaintiff was found to be cooperative, irritable, well oriented, with
appropriate affect, good eye contact, normal speech, logical flow of thought, normal
thought content, no hallucinations or delusions, normal motor activity, fair insight, and
fair judgment. She was assessed with major depressive disorder, recurrent, moderate,
and with polysubstance dependence in sustained full remission. Her Axis IV diagnoses
were family problems (severe), occupational problems (severe), problems with primary
support (severe), and legal problems (severe). Dr. Bhalla restarted Risperdal and told
plaintiff to continue taking Ambien and Lexapro.
On February 16, 2012, plaintiff had individual therapy with June Dillon (Tr. at
685). Plaintiff discussed her criminal thinking and talked about her arrest for stealing
alcohol. The therapist noted that plaintiff’s story in therapy contradicted her previous
story and placed the blame for her crime “on the store and not herself.”
On March 1, 2012, plaintiff had individual therapy with June Dillon (Tr. at 686).
She had started volunteering at the Clothes Cupboard three mornings a week and said
she enjoyed her time there.
On March 7, 2012, plaintiff had individual therapy with Virginia Caputy (Tr. at
682). Plaintiff was having difficulty living with her mother because she had no money to
help her mother with expenses. Plaintiff was volunteering at the Clothing Cupboard on
On June 5, 2012, plaintiff underwent an intake evaluation after having been
taken into custody for a charge of stealing (Tr. at 459, 462). Her previous mental health
records were reviewed. She was currently prescribed Lexapro and Risperdal. Her drug
of choice was listed as cocaine: “not since 2009, used for 30 years.” Plaintiff reported
that she was “coping ok.” Her mental status exam was normal except she had slurred
speech and a lethargic mood. The prison psychiatrist ordered that plaintiff continue on
On June 7, 2012, plaintiff refused her Celexa and Risperdal (Tr. at 532). She
was counseled on the risks of not taking this medication.
On June 11, 2012, plaintiff complained of chronic back pain and bilateral knee
pain since 2006 (Tr. at 532). She indicated that “movement” exacerbates her pain
which she described as a 9/10 at rest and a 10/10 with activity (Tr. at 533). Plaintiff’s
gait was steady. She was able to bend forward at the waist 45 degrees (Tr. at 533).
On June 12, 2012, plaintiff was observed to appear lethargic but cooperative (Tr.
at 460-461). Plaintiff said she wanted to take care of her elderly mother and feared her
mother’s death. A mental status exam was performed and plaintiff was noted to have
normal thought process, slow motor activity, depressed mood with anxiety, a tearful
affect, normal insight and judgment. Plaintiff was assessed with mood disorder not
otherwise specified with psychotic features, and polysubstance dependence, clean
On June 13, 2012, plaintiff had x-rays which showed mild thoracic spondylosis
(arthritis) and rotoscoliosis (curvature and rotation of the spine) (Tr. at 542).
On June 16, 2012, plaintiff saw the prison psychiatrist (Tr. at 462). Plaintiff said
she first saw a psychiatrist two years ago and was prescribed Lexapro for depression
but most recently had been taking Celexa and Risperdal for rage associated with her
mood. Plaintiff was observed to have a stable mood and pleasant affect. “She has no
auditory or visual hallucinations. . . . She has detailed speech and normal intelligence.
She has insight into her illness and good judgment in accepting treatment.” She was
assessed with major depressive disorder. Citalopram (also called Celexa, an
antidepressant) and Risperidone (also called Risperdal, an antipsychotic) were
On June 18, 2012, plaintiff complained of pain in her knees, hands and shoulder
since 2006 (Tr. at 546-547). She also complained of back pain and said in the past she
had been prescribed Flexeril and vitamins. “Turning” and “any movement” exacerbate
her pain which she described as a 9/10 both at rest and during activity. She reported
muscle spasms in both arms and legs after sitting for a while or moving (Tr. at 547).
Plaintiff’s gait was steady; she was able to bend forward at the waist to 90 degrees
(normal). Plaintiff grimaced during “the whole visit and more so when asked to bend
over.” (Tr. at 548). Plaintiff was told to engage in low impact activity such as walking to
maintain joint movement. She was told to take Tylenol for pain, and do range of motion
exercises to maintain movement and mobility.
On June 21, 2012, plaintiff complained of chronic back pain (Tr. at 550). Plaintiff
said nothing helped her pain which she described as a 7/10 at rest and a 10/10 with
activity (Tr. at 551). Plaintiff’s gait was steady.
On June 24, 2012, plaintiff refused her medication (Risperdal) (Tr. at 553).
On June 25, 2012, plaintiff said she “needed something done” because she was
snoring so badly at night her roommates were telling on her (Tr. at 554). She was
referred to the prison doctor for evaluation. She also complained of chronic back pain
(Tr. at 555). Plaintiff said her treatment before being incarcerated consisted of Bioflex
(over the counter joint health supplement), glucosamine (over the counter supplement
for joints), Flexeril (muscle relaxer), Aleve (over the counter non-steroidal antiinflammatory) and water aerobics. She rated her pain an 8/10 at rest and a 10/10 with
activity; however, she did not grimace during the encounter and she had a steady gait.
Plaintiff weighed 304 pounds.
On June 26, 2012, plaintiff refused her Risperdal (Tr. at 559).
On June 27, 2012, plaintiff refused her Risperdal (Tr. at 560-561). That same
day she had a pulmonary function test which was normal (Tr. at 558).
Plaintiff refused her Risperdal on June 29, 2012; June 30, 2012; July 1, 2012;
July 2, 2012; and July 4, 2012 (Tr. at 561-566).
On July 3, 2012, plaintiff reported persistent fatigue due to sleep apnea (Tr. at
538). She also reported joint pains affecting her hips and knees, and numbness in her
left leg. Plaintiff weighed 298 pounds. She was continued on Tylenol, and an overnight
oxygen saturation observation was scheduled.
On July 7, 2012, plaintiff had an oxygen saturation sleep study (Tr. at 568). Her
oxygen saturation was 96 to 97% while snoring, with a heart rate of 78. During apneic
episodes, her oxygen saturation dropped to 82% with no change in heart rate. After
apnea, she returned to heavy snoring and oxygen saturation was up to 97% after the
first or second breath.
On July 8, 2012, and July 10, 2012, plaintiff refused her Risperdal (Tr. at 569,
On July 11, 2012, plaintiff reported that she was “doing well” and that her mood
swings, anxiety and racing thoughts were “all down to at least half.” She was having no
auditory or visual hallucinations. She said she had adjusted to being in prison. Her
mental status exam was completely normal (Tr. at 464-465). She was fully oriented
with normal memory, no suicidal or homicidal thoughts, no hallucinations or delusions,
normal motor activity, normal appearance, normal mood and affect, normal insight and
judgment. Plaintiff had been refusing Risperdal -- she said it made her too sleepy and
“she has been doing fine without it.” She had not taken Risperdal in two weeks. Her
Risperdal was discontinued.
On July 16, 2012, plaintiff saw the nurse and complained of joint pain in her
hands, knees, hips and back (Tr. at 574). Plaintiff weighed 304 pounds. She had
“partially decreased range of motion related to weight issues.” (Tr. at 575). Plaintiff was
encouraged to do low impact activity such as walking to maintain joint movement, and
she was encouraged to lose weight.
On July 20, 2012, plaintiff saw the prison doctor to go over the results of her
sleep study (Tr. at 570). She weighed 302 pounds. Plaintiff reported spontaneously
falling asleep during the day along with persistent fatigue. She was assessed with
obstructive sleep apnea as well as hyperlipidemia due to the results of her blood work.
She was counseled on diet and exercise, and a CPAP was ordered.
On July 23, 2012, plaintiff saw a prison doctor who went over her pulmonary
function test (Tr. at 578-579).
On July 25, 2012, plaintiff saw a prison doctor about a condition unrelated to her
disability application (Tr. at 577). Plaintiff denied any other problems. She was noted
to be morbidly obese at 297 pounds.
On July 31, 2012, plaintiff saw the prison doctor about the doctor’s request for
issuance of a CPAP (Tr. at 579). Plaintiff had indicated she had a sleep study before
she was incarcerated, and she was directed to request records of her outside sleep
study (Tr. at 579).
On August 1, 2012, plaintiff saw the prison nurse for a follow up on Hepatitis C
(Tr. at 580-585). Plaintiff reported her first IV drug use in 1981, and her last IV drug use
in 2003. She denied lethargy and fatigue. She had lab work done to check her liver
function. Plaintiff was told to stop smoking, exercise, avoid high doses of Tylenol, avoid
fatty foods, and to talk to a health care provider before her release from prison about
ways to avoid spreading Hepatitis to others after she was released.
On August 9, 2012, plaintiff denied hallucinations (Tr. at 465-466). Her mental
status exam was completely normal.
On August 11, 2012, plaintiff refused her Celexa (Tr. at 589).
On August 24, 2012, plaintiff saw the prison doctor for a follow up on sleep
apnea (Tr. at 588). She weighed 305 pounds. Plaintiff was told the medical records
from Callaway County did not include a sleep study report as plaintiff had said. She
“signed a transfer of records request for U of MO Hospital which she feels has sleep
On August 26, 2012, plaintiff saw the prison psychiatrist for a follow up (Tr. at
466). She reported feeling OK but said she was having a hard time getting up because
of sleep apnea and the fact that her alarm clock had broken. The doctor observed that
plaintiff appeared to be cooperative but tired and dysphoric. “She reported her
concentration and memory as not good. No thought disorder. Limited insight and
judgment.” Plaintiff was continued on Citalopram. “She seems to have some
dysphoria, it is hard to differentiate whether it is due to the depression or sleep apnea
or just depression of her personality style. Very limited motivation.”
On August 28, 2012, plaintiff failed to show up for a Hepatitis B vaccination (Tr.
On September 4, 2012, plaintiff saw the prison doctor and denied any complaints
related to her asthma (Tr. at 592). Plaintiff weighed 310 pounds.
On September 6, 2012, plaintiff reported that she was doing well, she was
observed to be neat and clean, goal directed, fully oriented, with normal speech, normal
motor activity, normal insight and judgment. Her mood was anxious -- “she was
anxious to get to medication line ‘not to miss her meds’”.
On September 7, 2012, plaintiff saw the prison nurse (Tr. at 595). Plaintiff was
alert and fully oriented, her speech was clear, her gait was steady. She weighed 311
pounds. Her breathing was deep and unlabored. She had full range of motion in her
extremities and no edema.
On September 22, 2012, plaintiff had an appointment with the prison psychiatrist
(Tr. at 467). She showed up for the appointment but refused to be evaluated.
On October 4, 2012, plaintiff said she was doing well (Tr. at 467-468). “Is
‘working, I found out I can work’”. Plaintiff said she planned to work when she was
released from custody. She denied hallucinations. Her mental status exam was
normal except that her speech was “pushed”, she was animated and her insight and
judgment were described as “grandiose.” She was told to continue with her positive
On October 11, 2012, plaintiff saw a prison nurse to renew her Tylenol for joint
pain (Tr. at 605-606). Plaintiff weighed 302 pounds. Plaintiff was encouraged to do low
impact activity such as walking.
On October 15, 2012, plaintiff reported that she had been fired from her job in
the kitchen and had moved to another housing unit (Tr. at 468-469). She felt she had
been falsely accused. Plaintiff denied hallucinations. Her mental status exam was
normal except she had an irritable mood.
On November 4, 2012, plaintiff saw the prison psychiatrist (Tr. at 469). Plaintiff
said for the most part her mood had been pretty good. She was sleeping well although
she still had sleep apnea. She reported no problems with her medication. Her mental
status exam was normal. Plaintiff reported that her concentration and memory were
“OK, not very good since head injury due to MVA in 1985.” The psychiatrist continued
plaintiff on Citalopram and noted that plaintiff “seems to be doing well.”
On November 9, 2012, plaintiff saw the prison doctor for a follow up on sleep
apnea and history of degenerative joint disease (Tr. at 608-609). Plaintiff weighed 307
pounds. Plaintiff’s sleep study records confirmed significant sleep apnea. Plaintiff’s
Tylenol was renewed and she was referred to another doctor for a CPAP.
On November 14, 2012, plaintiff had a follow up and said she had started
working as a dorm tender but was having some physical problems (Tr. at 469-470).
Plaintiff denied hallucinations. Her mental status exam was normal except she had an
irritable mood and appeared restless.
On November 16, 2012, plaintiff saw a doctor for issuance of a CPAP and was
admitted to the infirmary (Tr. at 609-610). She was told to use oxygen at night (Tr. at
613). Multiple times plaintiff was observed sleeping with her oxygen turned off, and she
was awakened and told that she needs to wear the oxygen any time she is asleep (Tr.
at 614, 616). She was released from the infirmary on November 19, 2012 (Tr. at 619).
On November 24, 2012, plaintiff refused her Celexa (Tr. at 621).
On December 3, 2012, plaintiff refused her medication (Tr. at 625).
On December 4, 2012, plaintiff had x-rays which showed possible degenerative
changes in the right shoulder (Tr. at 622).
On December 17, 2012, plaintiff had a follow up and reported snoring and
sleeping all the time (Tr. at 470-471). Her mental status exam was normal except her
mood was described as down.
On December 23, 2012, plaintiff was walking back from the medicine line and
her knee popped -- “now it hurts so bad I can’t put weight on it.” (Tr. at 630). Plaintiff’s
gait was steady and she had full range of motion without weight bearing. She had
“slight swelling” in the back of her left knee. Plaintiff was offered a wheelchair and
crutches, but she refused (Tr. at 632). An ice pack was issued and an Ace wrap was
applied. She walked about 20 feet after leaving the medical unit but then returned and
requested a wheelchair.
On December 26, 2012, plaintiff was seen in follow up for her knee (Tr. at 634).
Plaintiff denied any specific complaint regarding her mental health. She did not cry, she
was not hostile or angry, she was not withdrawn, she was fully oriented and denied any
manic behavior (Tr. at 636). Plaintiff’s wheelchair and Ace bandage use were
On January 2, 2013, plaintiff saw a nurse to return the Ace wrap and wheelchair
(Tr. at 636). Plaintiff was upset and said she was unable to walk. “Pt is noted to get up
without using arms of wheelchair and ambulate around the room then down the hall to
exit medical without difficulty. Pt states that if something happens then it is Medical’s
fault. Explained to pt there was no bruising or inflammation and that she needs to
follow protocol and return to sick call if pain and other symptoms persist.” (Tr. at 636).
On that same day plaintiff refused her Celexa (Tr. at 637).
On January 14, 2013, plaintiff underwent “discharge planning” in the Department
of Corrections (Tr. at 471-472). Plaintiff denied suicidal or homicidal ideation, she
denied hallucinations. She was observed to be fully oriented with normal speech,
normal motor activity, normal mood, normal affect, intact insight and judgment, and
goal directed thought processes. Nothing abnormal was observed in her mental
evaluation. Plaintiff was anticipating being released on February 28, 2013, and a follow
up appointment was made for her at Options Unlimited for March 1, 2013.
On January 26, 2013, plaintiff reported that her mood was “pretty good” (Tr. at
472). Aside from feeling very sleepy and having sleep apnea, plaintiff “denied any
other problems.” She denied side effects of medication and “talked about bad left
knee.” Plaintiff was observed to be cooperative, she had normal speech and motor
activity, her mood was OK, her affect was neutral, she had no thought disorder, her
motivation was fair, she had adequate insight and judgment. Her Citalopram, 40 mg,
was continued. “She seems to be doing well - at her baseline.”
On February 1, 2013, plaintiff denied any complaints regarding her mental health
(Tr. at 641). She was fully oriented, she was not crying, not withdrawn, not hostile, not
angry, and exhibited no manic behavior.
On February 6, 2013, plaintiff had a medical follow up and reported “no
complaints” regarding her mental health (Tr. at 472, 644). She was fully oriented with
no crying, was not hostile or angry, and she displayed no manic behavior.
On February 11, 2013, plaintiff had a medical follow up and reported “no
complaints” (Tr. at 473).
On February 19, 2013, plaintiff refused her medication (Tr. at 645).
On February 27, 2013, plaintiff was released from prison (Tr. at 647). She
weighed 311 pounds on this date (Tr. at 648).
On March 1, 2013, plaintiff met with Virginia Caputy at East Central Missouri
Behavioral Health Services for a new client intake (Tr. at 663-669). Plaintiff said she
was able to care for herself and also assisted her mother. Her goal was listed as
follows: “Client wants to have some control over her life and be able to support herself
through disability.” She was assessed with Bipolar I Disorder, currently manic, and
polysubstance dependence in sustained full remission.
On April 10, 2013, plaintiff saw Dr. Wells for an infection (Tr. at 706). She was
smoking 1/2 pack of cigarettes per day. She was noted to be alert, oriented, and
cooperative with appropriate mood and affect.
On April 22, 2013, plaintiff saw Dr. Wells complaining of left knee pain (Tr. at
708-710). “[S]he stated she had an injury of her knee several weeks ago. No evidence
of any decreased range of motion of the knee at this point.” Plaintiff denied back pain,
she also denied any muscle spasm. She had no musculoskeletal complaints other than
her knee pain. Plaintiff had a normal gait.
On May 3, 2013, plaintiff saw Dr. Wells for left knee pain and for a disability
evaluation (Tr. at 711-714). “Has no CPAP machine since she turned it down before.
Did qualify before due to sleep studies. Turned down CPAP machine. Referred to
bariatric surgery and declined lap band surgery.” Plaintiff continued to smoke a half a
pack of cigarettes per day. Plaintiff had a normal gait. She was alert, oriented, and
cooperative with appropriate mood and affect and normal judgment. “Not likely to be
able to work due to CHI [closed head injury] and bipolar.”
As of June 1, 2013, plaintiff was disabled according to the findings of the ALJ.
SUMMARY OF TESTIMONY
During the October 10, 2013, hearing, plaintiff testified; and Suzanne Hullender a
vocational expert, testified at the request of the ALJ.
At the time of the hearing, plaintiff was 52 years of age and is currently 55 (Tr. at
40). She was 5’9” tall and weighed around 335 pounds (Tr. at 40). Plaintiff has never
been married and has no children (Tr. at 40). She lives in a house with her mother who
is retired (Tr. at 41). Plaintiff does not have a driver’s license (Tr. at 41). Plaintiff
graduated from high school in 1979 (Tr. at 41). She went through Basic Essential Skills
Training for pipefitting, and vocational rehabilitation provided her with commercial driver
training (Tr. at 42). Plaintiff drove a truck for Kingdom Projects (Tr. at 42).
Plaintiff has not worked since July 14, 2010, her amended alleged onset date
(Tr. at 42). She stopped working on January 27, 2009 (Tr. at 42). At that time she
worked for a sheltered workshop (Tr. at 43). First she would drive around to
businesses to pick up recyclables (Tr. at 43). She had two helpers who would do the
physical part of the job (Tr. at 43, 69). Then in 2007 she got a DUI and lost her license,
and her job duties changed to straightening coat hangers and sharpening pencils (Tr. at
69). Plaintiff did that full time -- her boss made her feel like if she did not work full time
her job would be on the line (Tr. at 43). Plaintiff left that job because her probation was
revoked and she went into custody where she participated in a 120-day behavior
modification program (Tr. at 43).
Plaintiff’s most limiting condition is bipolar disorder (Tr. at 44). She hears voices
that tell her to do things that she should not be doing or that she does not want to do
(Tr. at 44). The voices began around 2007 and are pretty much constant, “always
talking and carrying on” (Tr. at 49, 50). The voices tell plaintiff that she is a big loser
(Tr. at 50). She used to deny hearing voices when asked by her doctors, but that was
because she was embarrassed (Tr. at 63).
Plaintiff goes into slumps where she does not respond to people, she just stays
at home (Tr. at 44). If she could stay at home and just sleep and eat she would be
content for the rest of her life (Tr. at 44). Plaintiff does not trust anyone and does not
want to be around anyone (Tr. at 44). She had a closed-head in jury in 1985 and she is
now very rigid (Tr. at 44). On the way to the hearing, plaintiff was “barking” at her mom,
even though she recognized that her mom and sister are the ones who keep plaintiff
from being homeless (Tr. at 44).
Most of plaintiff’s days are bad days (Tr. at 50). On a good day, she wakes up a
lot at night, sleeping for 20 to 30 minutes at a time, roams around, makes coffee, goes
out on the front porch to smoke (Tr. at 50-52). On a bad day, she sleeps all day (Tr. at
66). She has crying spells once a day (Tr. at 66-67). Plaintiff’s mother does the
cooking (Tr. at 51). Plaintiff helps with the dishes, folds laundry, makes sandwiches,
warms soup, and does some of the cleaning (Tr. at 52). Plaintiff sometimes goes
grocery shopping with her mother, but typically her mother will get the groceries when
she is already in town (Tr. at 52-53).
Plaintiff tries to see a psychiatrist at least once a month, she sees a psychologist
every two weeks, and she has family counseling through her parole officer every two
weeks (Tr. at 45). Plaintiff goes to church on Sundays (Tr. at 53). She attends
meetings for United Methodist Women on Mondays (Tr. at 53). She helped in the
kitchen at a dinner for that organization (Tr. at 53). Plaintiff has chickens as pets, and
she likes to watch television (Tr. at 63). She also likes to eat (Tr. at 63). Plaintiff can
watch movies “if they’re cute,” and if the movie or television program is not very good,
she will not stay and watch it because she loses interest (Tr. at 64). Plaintiff used
Facebook on her telephone in the past, but since getting out of custody she only checks
it at the library once in a while (Tr. at 64). Plaintiff does not read for pleasure because
she does not comprehend very well and stumbles over words (Tr. at 65). It is difficult
for her to follow recipes because it is difficult for her to read (Tr. at 65). Plaintiff is not
able to figure out bills -- her mother does that (Tr. at 65).
Plaintiff described a time when she was waiting for coffee to be brewed -- she
was leaning on the kitchen counter and fell asleep and fell on the floor (Tr. at 53-54).
Plaintiff’s Ambien helps her fall asleep but does not help her stay asleep (Tr. at 54).
Plaintiff was diagnosed with sleep apnea but she does not have the money to get a
CPAP (Tr. at 54).
Plaintiff’s medications cause her mouth to be dry (Tr. at 47). At the time of the
hearing she had been taking Invega (antipsychotic) for two weeks; before that she was
on Haldol (antipsychotic) but did not like it because she woke up feeling hung over (Tr.
at 47-48, 49).
Plaintiff was recently at the doctor due to advanced osteoarthritis in her knees,
back, hands and hips (Tr. at 55). Plaintiff has not had any Cortisone injections yet (Tr.
at 55). She applied for Medicaid but was denied (Tr. at 55). Plaintiff has ruptured disks
in her lower back; and her hands, elbows and shoulders hurt constantly (Tr. at 57).
Plaintiff takes Mobic (non-steroidal anti-inflammatory) for her arthritis (Tr. at 57). She is
supposed to take Acetaminophen (Tylenol) because she has Hepatitis C (Tr. at 57).
Plaintiff can sit for 30 to 40 minutes at a time (Tr. at 58). She can stand for 10
minutes at a time (Tr. at 58). She can walk about 35 feet (Tr. at 59). She can lift and
carry 10 to 15 pounds (Tr. at 59). Plaintiff’s right arm is more restricted than her left;
she fell and jammed her elbow, and in 1985 she was paralyzed from a car accident and
had to go through physical therapy (Tr. at 60). Plaintiff cannot reach overhead (Tr. at
60). Plaintiff has trouble kneeling, crawling, stooping, crouching, bending and squatting
(Tr. at 60-61). Plaintiff has difficulty gripping (Tr. at 61). She has to have her mother
help her in the shower and help her wipe when using the toilet (Tr. at 62-63). Plaintiff
has trouble with memory -- she has to write her doctor appointments in a planner (Tr. at
61-62). Plaintiff has problems with concentration and focus (Tr. at 62). When plaintiff
was trying to work, she had problems getting along with people (Tr. at 62). Being
locked up had a lot to do with it -- people in authority would try to tell her this way is the
right way when she knew the other way was the right way (Tr. at 62). But she knows
better now (Tr. at 62).
Vocational expert testimony.
Vocational expert Suzanne Hullender testified at the request of the
Administrative Law Judge. The first hypothetical involved a person who could perform
light work except the person would need to alternate between sitting, standing and
walking every 45 minutes at will for a brief position change of no more than five minutes
but would be able to continue working at the work station. The person could do no
overhead reaching; could occasionally climb ramps and stairs; could never climb
ladders, ropes or scaffolds; must avoid concentrated exposure to vibration and work
hazards; would be limited to simple, routine, repetitive tasks; could have only
occasional interaction with coworkers, supervisors, and the general public; could have
only occasional changes in the work setting; and could not work in a setting where
alcoholic beverages are made or sold (Tr. at 72-73). The vocational expert testified that
“the combination of occasional contact with the general public and the need to sit or
stand at the light level is very limiting.” (Tr. at 73). The vocational expert testified that
such a person could work as a small products assembler, light, SVP 2, DOT 706.684022 with 473 jobs in Missouri and 18,000 in the country (Tr. at 73). The number of jobs
would be reduced by 25% to accommodate the sit/stand alternative (Tr. at 73).
If the person were to be off task 5 percent of the work day on a consistent basis,
the person could not work (Tr. at 73). Absences exceeding one per month on a regular
and consistent basis would preclude employment (Tr. at 74).
FINDINGS OF THE ALJ
Administrative Law Judge Cynthia Hale entered her opinion on December 17,
2013 (Tr. at 12-25). Plaintiff’s last insured date was September 30, 2013 (Tr. at 14).
Step one. Plaintiff has not engaged in substantial gainful activity since her
amended alleged onset date (Tr. at 14). Although she worked in a sheltered workshop
after her incarceration, such work is not considered substantial gainful activity (Tr. at
Step two. Plaintiff has the following severe impairments: obesity, status post
fracture of the left small finger requiring pinning, degenerative disc disease of the
cervical spine, degenerative joint disease of the left AC joint, a mood disorder (variously
described as both major depression and bipolar disorder), an anxiety disorder, and
history of polysubstance dependence (Tr. at 14). As of June 1, 2013, plaintiff also had
the additional severe impairments of severe obstructive sleep apnea, degenerative disc
disease of the lumbar spine, and bilateral patellofemoral (knee) arthritis (Tr. at 14).
Plaintiff alleged difficulty sleeping prior to June 1, 2013; however, there was no
sleep study confirming a diagnosis of sleep apnea until after this date, plaintiff declined
a sleep study in May 2009, and she refused a CPAP machine prior to June 1, 2013 (Tr.
at 15). Plaintiff complained of back pain and left knee pain prior to June 1, 2013;
however, there were no objective studies and limited examination findings of the back
or knees prior to June 1, 2013 (Tr. at 15).
Plaintiff has a history of Hepatitis C; however, there is no record of this condition
impacting her work related activities (Tr. at 15). Plaintiff was treated for bladder
incontinence; however, she has not alleged any functional limitations from this
impairment (Tr. at 15). Plaintiff’s cellulitis is not a severe impairment because she had
two instances of cellulitis, each briefly and 2 1/2 years apart and therefore this condition
does not meet the durational requirement (Tr. at 15). Plaintiff was treated for COPD
while incarcerated but prison health records do not reflect acute symptoms of shortness
of breath and her pulmonary function tests and x-rays were normal (Tr. at 15).
Step three. Plaintiff’s impairments do not meet or equal any listed impairment
(Tr. at 15-17).
Step four. The ALJ considered the effects of plaintiff’s obesity when determining
her residual functional capacity (Tr. at 14). Prior to June 1, 2013, plaintiff was capable
of performing light work in that she could lift and carry 20 pounds occasionally and 10
pounds frequently; stand and walk for 6 hours per day; sit for 6 hours per day; could not
reach overhead; could occasionally climb ramps and stairs; could never climb ladders,
ropes or scaffolds; had to avoid concentrated exposure to vibration and work hazards;
was able to perform simple, routine and repetitive tasks requiring only occasional
interaction with coworkers, supervisors, and the general public; could tolerate
occasional changes in work settings; and could not work in settings where alcoholic
beverages were made or sold (Tr. at 17).
As of June 1, 2013, and thereafter, plaintiff can perform sedentary work in that
she can lift and carry 10 pounds; stand or walk for 2 hours per day; sit for 6 hours per
day; cannot reach overhead; can occasionally climb ramps and stairs; can never climb
ladders, ropes or scaffolds; must avoid concentrated exposure to vibration and work
hazards; can perform simple, routine and repetitive tasks requiring only occasional
interaction with coworkers, supervisors and the general public; can tolerate occasional
changes in work settings; may not work in settings where alcoholic beverages are made
or sold; and would be off task 15 percent of the day (Tr. at 22). The ALJ found that the
objective and clinical evidence intensifies after June 1, 2013, consistent with a
significant reduction in her residual functional capacity (Tr. at 22). After June 1, 2013,
x-rays of plaintiff’s knees revealed degenerative changes, x-rays of the lumbar spine
revealed loss of lordosis or levoscoliosis versus mild scoliosis, physical examinations
revealed pitting edema in the leg and decreased reflexes in the knees (Tr. at 22).
Although plaintiff had no sleep study and refused a CPAP prior to June 1, 2013,
afterward she had two sleep studies and was treated with a CPAP (Tr. at 22-23).
Records reflect stable moods and minimal findings prior to June 1, 2013, but show a
deterioration in her mental condition after that date (Tr. at 23).
Plaintiff has no past relevant work (Tr. at 23).
Step five. Prior to June 1, 2013, plaintiff was capable of working as a small
products assembler, light, unskilled, with 473 jobs in Missouri and 18,000 in the country
(Tr. at 24). After June 1, 2013, there were no jobs available in significant numbers in
the national economy that plaintiff could perform and therefore the ALJ found her
disabled as of that date (Tr. at 24).
Plaintiff argues that the ALJ erred in finding that plaintiff could perform the job of
small products assembler because only one hypothetical question was posed to the
vocational expert, and that hypothetical did not match the residual functional capacity
as determined by the ALJ.
The ALJ found that plaintiff was capable of performing light work in that she
could lift and carry 20 pounds occasionally and 10 pounds frequently; stand and walk
for 6 hours per day; sit for 6 hours per day; could not reach overhead; could
occasionally climb ramps and stairs; could never climb ladders, ropes or scaffolds; had
to avoid concentrated exposure to vibration and work hazards; was able to perform
simple, routine and repetitive tasks requiring only occasional interaction with coworkers,
supervisors, and the general public; could tolerate occasional changes in work settings;
and could not work in settings where alcoholic beverages were made or sold.3 In
finding at step five of the sequential analysis that plaintiff was capable of performing
other work, the ALJ noted:
The hypothetical posed of the vocational expert during the hearing was more
restrictive than the eventual residual functional capacity outlined in the findings
above. As such, it is logical that if the claimant could perform this occupation
with the more restrictive hypothetical question, she would be able to perform this
job under the construct of the less restrictive residual functional capacity.
(Tr. at 24).
The more restrictive hypothetical was the same as the residual functional
capacity found by the ALJ but with this added restriction: the person would need to
alternate between sitting, standing and walking every 45 minutes at will for a brief
Without any further elaboration, I find that the substantial evidence in the record
supports the ALJ’s residual functional capacity finding.
position change of no more than five minutes but would be able to continue working at
the work station.
An ALJ is required to include only those limitations in a hypothetical to a
vocational expert which he finds credible. Gilbert v. Apfel, 175 F.3d 602, 604 (8th Cir.
1999); Sobania v. Secretary of Health Educ. & Human Servs., 879 F.2d 441, 445 (8th
Cir. 1989); Rautio v. Bowen, 862 F.2d 176, 180 (8th Cir. 1988). The hypothetical is
sufficient if it sets forth the impairments which are accepted as true by the ALJ.
Haggard v. Apfel, 175 F.3d 591, 595 (8th Cir. 1999) (holding that the ALJ need not
include additional complaints in the hypothetical not supported by substantial evidence);
Hunt v. Massanari, 250 F.3d 622, 625 (8th Cir. 2001). Where a hypothetical question
precisely sets forth all of the claimant’s physical and mental impairments, a vocational
expert’s testimony constitutes substantial evidence supporting the ALJ’s decision.
Robson v. Astrue, 526 F.3d 389, 392 (8th Cir. 2008) (holding that a vocational expert’s
testimony is substantial evidence when it is based on an accurately-phrased
hypothetical capturing the concrete consequences of a claimant’s limitations); Wingert
v. Bowen, 894 F.2d 296, 298 (8th Cir. 1990).
When a hypothetical question is more restrictive than the residual functional
capacity assigned to a claimant by an ALJ, the hypothetical is sufficient so long as it
encompasses all of the restrictions in the residual functional capacity. Miller v. Astrue,
233 Fed. Appx. 590, 2007 WL 1452966, *2 (8th Cir., May 18, 2007) (hypothetical which
is more restrictive than the residual functional capacity assessment sufficient so long as
it includes all of the impairments that the ALJ found to be substantiated by the record);
Fredrick v. Colvin, -- F.Supp.3d --, 2016 WL 755647, *6 (W.D. Mo., February 25, 2016)
(“[I]f the vocational expert could offer jobs that exist in the national economy under a
more restrictive hypothetical, those same jobs would necessarily still apply to Fredrick’s
less-restrictive RFC.”); Graffis v. Colvin, 2015 WL 5098776, n.5 (E.D. Mo., August 11,
2015) (hypothetical that is more restrictive than the residual functional capacity the ALJ
found constitutes sufficient evidence, and any discrepancy between the hypothetical
and residual functional capacity is harmless error); Hanson v. Colvin, 2013 WL
4811067, *23 (D. Minn., September 9, 2013); McGowin v. Astrue, 2013 WL 655159,
*10 (E.D. Mo., February 22, 2013); Vann v. Astrue, 2012 WL 651412, n. 68 (W.D. Mo.,
February 28, 2012); Robinson v. Astrue, 2010 WL 481045, *17 (E.D. Mo., February 4,
Because the vocational expert testified that a person with all of the restrictions
found by the ALJ (and then some) could perform substantial gainful activity, her
testimony constitutes substantial evidence that a person with the residual functional
capacity assessed by the ALJ would not be disabled.
AVAILABLE IN SIGNIFICANT NUMBERS
Plaintiff argues that the Acting Commissioner did not meet her burden of
establishing that plaintiff is capable of performing other work existing in significant
The vocational expert listed assembler, small parts I, as the single occupation
available to an individual based on the ALJ’s hypothetical residual functional
capacity question during the hearing. This RFC was primarily adopted by the
ALJ in [her] written decision finding the Plaintiff was not disabled and not entitled
to benefits. The vocational expert clearly stated that this was the only
occupation she would be able to come up with at the light level. She then stated
that there were only 473 jobs in the state of Missouri and 18,000 of these jobs in
the national economy but that they would be reduced by 25%.
(plaintiff’s brief, p. 14).
Although the vocational expert did indeed testify that the 473 jobs available in
Missouri should be reduced by 25%, this was based on the sit/stand option which the
ALJ ultimately declined to adopt.
Your Honor, that combination of occasional contact with the general public and
the need to sit or stand at the light level is very limiting. The, the only possible
occupation that I, I can identify is assembler, small products I. . . . There are 473
estimated in Missouri, 18,000 estimated in the U.S. economy. And I would
recommend a reduction of 25 percent on those numbers to accommodate for the
sit stand alternative. . . .
(Tr. at 73) (emphasis added).
Title 42, United States Code, Section 423(d)(2)(A) provides that “‘work which
exists in the national economy’ means work which exists in significant numbers either in
the region where such individual lives or in several regions of the country.” If the
claimant is capable of performing substantial gainful activity which exists in the national
economy, he is not disabled -- it does not matter whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work. Id.
There is no bright-line rule for what constitutes a “significant number” of jobs.
“[I]n determining whether work exists in significant numbers, . . . [t]he decision should
ultimately be left to the trial judge’s common sense in weighing the statutory language
as applied to a particular claimant’s factual situation.” Jenkins v. Bowen, 861 F.2d
1083, 1087 (8th Cir. 1988). “The Court of Appeals for the Eighth Circuit has upheld an
ALJ’s determination that 200 regional jobs and 10,000 national jobs were sufficient.”
Foster v. Colvin, 2016 WL 29637, *4 (W.D. Mo., January 4, 2016) (citing Johnson v.
Chater, 108 F.3d 178, 180 (8th Cir. 1997)). See also Craigie v. Bowen, 835 F.2d 56, 58
(3rd Cir. 1987) (200 jobs in the region); Haynie v. Colvin, -- F.Supp.3d --, 2016 WL
1718392 (W.D. Arkansas, April 29, 2016) (18,000 jobs in the national economy).
In the case before me, the vocational expert testified that there were 473
positions in Missouri and 18,000 positions in the country that plaintiff was capable of
performing. The ALJ found that this was a significant number of jobs (Tr. at 23).
Because the decision of what constitutes a significant number is left to the common
sense of the ALJ, and because these numbers have been held to be significant in other
cases, I find that the record establishes that plaintiff could perform work “existing in
significant numbers in the national economy.”
Based on all of the above, I find that the substantial evidence in the record as a
whole supports the ALJ’s finding that plaintiff was not disabled from July 14, 2010,
through her onset date of June 1, 2013. Therefore, it is
ORDERED that plaintiff’s motion for summary judgment is denied. It is further
ORDERED that the decision of the Commissioner is affirmed.
ROBERT E. LARSEN
United States Magistrate Judge
Kansas City, Missouri
August 29, 2016
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