McMurray v. Astrue

Filing 23

ORDER denying plaintiff's motion for judgment and affirming the decision of the Commissioner. Signed by Magistrate Judge Robert E. Larsen on 9/20/2009. (Marullo, Carol)

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHWESTERN DIVISION KIMBERLY MCMURRAY, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) Case No. 08-5044-CV-SW-REL-SSA ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT Plaintiff Kimberly McMurray 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 discredited the opinion of plaintiff's treating physician, Dr. Malcolm Oliver, and in failing to properly evaluate plaintiff's credibility. I find that the substantial evidence in the record as a whole supports the ALJ's finding that plaintiff is not disabled. Therefore, plaintiff's motion for summary judgment will be denied and the decision of the Commissioner will be affirmed. I. BACKGROUND On July 20, 2005, plaintiff applied for disability benefits alleging that she had been disabled since June 25, 2004. Plaintiff's disability stems from back and hip pain, major depression, anxiety, carpel tunnel syndrome, headaches, and sleeplessness. 2005. Plaintiff's application was denied on October 19, On October 16, 2007, a hearing was held before an On November 30, 2007, the ALJ found Administrative Law Judge. that plaintiff was not under a "disability" as defined in the Act. On March 25, 2008, the Appeals Council denied plaintiff's Therefore, the decision of the ALJ stands as request for review. 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 2 a balancing test to evidence which is contradictory." Wilcutts v. Apfel, 143 F.3d 1134, 1136 (8th Cir. 1998) (citing Steadman v. Securities & Exchange Commission, 450 U.S. 91, 99 (1981)). Substantial evidence means "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. at 401; Jernigan v. Sullivan, 948 F.2d 1070, 1073 n. 5 (8th Cir. 1991). However, the substantial evidence standard presupposes a zone of choice within which the decision makers can go either way, without interference by the courts. "[A]n administrative decision is not subject to reversal merely because substantial evidence would have supported an opposite decision." Id.; Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988). III. BURDEN OF PROOF AND SEQUENTIAL EVALUATION PROCESS An individual claiming disability benefits has the burden of proving she 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 she 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 3 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. codified at 20 C.F.R. 404.1501, et seq. These regulations are The five-step sequential evaluation process used by the Commissioner is outlined in 20 C.F.R. 404.1520 and is summarized as follows: 1. Is the claimant performing substantial gainful activity? Yes = not disabled. No = go to next step. 2. Does the claimant have a severe impairment or a combination of impairments which significantly limits her 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 Com- missioner. 4 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 and vocational expert Dr. Cathy Hodgson, in addition to documentary evidence admitted at the hearing. A. ADMINISTRATIVE REPORTS The record contains the following administrative reports: Earnings Record The record establishes that plaintiff earned the following income from 1989 through 2007: Year 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 (Tr. at 65). Income $ 3,773.96 4,649.11 882.93 607.05 273.27 686.38 665.68 13,882.40 6,447.24 11,990.77 Year 1999 2000 2001 2002 2003 2004 2005 2006 2007 Income $13,387.64 5,201.38 6,118.88 15,419.00 10,145.25 10,031.91 0.00 0.00 0.00 5 Functional Report In a Functional Report completed on September 17, 2005, plaintiff reported that during a typical day she will get up and feed her granddaughter, clean her house, watch television, feed her granddaughter lunch, "find any-thing [sic] to do with her," watch television again, cook dinner, bathe her granddaughter, watch television, then go to bed (Tr. at 112). she took care of her granddaughter: [sic] for her." (Tr. at 113). She reported that "I have to do every-thing She reported that she was able to prepare complete dinners and sandwiches, that she cooks daily, and that it usually takes her about two hours to prepare a meal (Tr. at 114). She reported being able to clean for three hours She reported per day and do laundry twice a week (Tr. at 114). being able to shop once a week for no longer than an hour (Tr. at 115). Plaintiff was asked to circle all items her condition affects (Tr. at 117). She circled lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, and using her hands (Tr. at 117). She did NOT circle memory, completing tasks, concentration, understanding, following instructions, or getting along with others (Tr. at 117). She is able to pay attention "for a long time" if it is "interesting" (Tr. at 117). 6 Notice of Commencement/Termination of Compensation The Missouri Department of Labor and Industrial Relations, Division of Workers' Compensation, notified plaintiff that her worker's compensation income which had begun on June 1, 2004, was ending as of June 22, 2004 (Tr. at 55). $1,507.38 for the 22 days of disability. B. SUMMARY OF MEDICAL RECORDS On Saturday, May 29, 2004, plaintiff went to the emergency room at Cox Health (Tr. at 234-237, 315-320). She reported She was Plaintiff was paid having twisted her back at work the previous evening. assessed with acute myofascial strain. She was given a prescription for Vicodin (narcotic) and told to stay off work until June 1, 2004.1 On June 1, 2004, plaintiff saw Thomas Corsolini, M.D. (Tr. at 392-394, 409, 413). On the initial paperwork, plaintiff reported that her current weight was 132 but had been 115 a year earlier. She reported a history of migraine headaches and She reported arthritis in her hands, but no other conditions. having smoked 1/2 pack of cigarettes per day for the past 20 years. Plaintiff reported her pain as a seven out of ten, and said it was the same when the pain started. June 1, 2004, was a Tuesday following the May 31, 2004, Memorial Day holiday, i.e., three days after plaintiff's ER visit. 7 1 The record reads in part as follows: PHYSICAL EXAMINATION: . . . She walks smoothly without limp or hesitation. Muscle stretch reflexes normal bilaterally at biceps, triceps, and brachioradialis locations. Muscle stretch reflexes normal bilaterally at patellar and Achilles locations. She is able to bend backwards 10 degrees at the waist, bend forward 60 degrees at the waist, with evidence of mild discomfort in each direction. She also has pain when doing a squat or when rotating her torso. Palpation and percussion find discomfort along the left thoracic paraspinal muscle groups at about the T8 level. She also is mildly uncomfortable at the left lumbar paraspinal group. DISCUSSION: Generalized back strain. I gave a prescription for physical therapy for the Heartland Clinic in Springfield. This will be over the upcoming week and I would like to see her again in one week and I will keep her off work until then. On June 2, 2004, plaintiff was evaluated by a physical therapist at Heartland Physical Therapy (Tr. at 324-325, 335, 337). Goals and treatment were discussed. On June 3, 2004, plaintiff attended her first session of physical therapy (Tr. at 326, 339). `No one is touching me today.'" "States she is very sore. Therapist Stan Brown performed Plaintiff complained of hip very gentle stretches and massage. pain after treatment. On June 4, 2004, plaintiff had physical therapy with Stan Brown (Tr. at 327, 340). remained very sensitive. On Monday, June 7, 2004, plaintiff returned to physical therapy (Tr. at 328, 330, 336, 338, 341, 354). 8 She reported that After "gentle" massage, plaintiff her pain was now a 5/10, down from 9-10/10. She reported increased pain with lifting her grandchild and driving for extended periods of time, i.e., "one hour or more." On June 8, 2004, plaintiff saw Dr. Corsolini (Tr. at 391, 415). "Ms. McMurray has attended some physical therapy appointments and feels a little bit better than she did last week. She is able to demonstrate normal range of motion all She does directions in the cervical, thoracic, and lumbar spine. have some discomfort in the thoracic spine with back bending. Palpation continues to find some discomfort along the left mid thoracic muscle group. over the first week. Mild to moderate improvement in symptoms Ms. McMurray does not appear to be ready to I will recommend continuing return to her regular work just yet. therapy, two additional appointments this week and return to unrestricted work on the 14th. Followup should not be necessary." On June 9, 2004, plaintiff returned for physical therapy (Tr. at 329, 342). She reported decreased pain overall but She endured her treatment well. increased pain with lifting. Plaintiff reported she was scheduled to return to work on June 15 (in six days). On June 11, 2004, plaintiff saw Thomas Corsolini, M.D., with complaints of back pain (Tr. at 361, 390, 411, 417). "She still indicates the area between the left scapula and her spine and 9 somewhat lower as the area that's bothering her the most. She's not complaining much of low back pain. She says some of therapy treatment has been painful, and some has been helpful. hasn't been able to tolerate electrical stimulation. She She is able to make normal range of motion all directions in the cervical spine, thoracic spine, and lumbar spine. Palpation finds continued discomfort in the left thoracic paraspinal group at about the T8 level. No significant tenderness in the lower back. I'm going to recommend three additional therapy appointments next week, and keep her off work one additional week, planning to return to regular work on the 21st. not successful." On Monday, June 14, 2004, plaintiff returned for physical therapy (Tr. at 331, 343, 353). during her massage. On June 15, 2004, plaintiff had physical therapy (Tr. at 332, 344, 352). today." The notes state, "feels better -- took meds Plaintiff was unable to relax Follow up only if this was She was observed to be more relaxed. On June 16, 2004, plaintiff had her last physical therapy session (Tr. at 333, 345, 351). Plaintiff said she "keeps busy She rated her pain an 8/10. all the time - hates to sit around." She was assessed with minimal to no progress made. 10 On June 20, 2004, physical therapist Stan Brown wrote a discharge summary (Tr. at 334, 346, 350). "Patient was seen for a total of seven visits for complaints of acute and severe low back, hip and groin pain. Patient stated on her last visit that she `keeps busy all the time because she hates to sit around.' Patient also stated that her pain was approximately an 8/10 on a 1-10 pain scale. Patient had stated three visits earlier that Patient made some her pain was approximately 5/10. . . . progress, and her sensitivity had decreased somewhat, but she continued to be very hypersensitive with her treatments. No further orders were received, and patient had expressed three visits ago that she had received about 50% improvement, but on her last visit, expressed that she really had made no improvement. Therefore, patient will be discharged this date." On June 21, 2004, plaintiff was released to return to work full time without restrictions (Tr. at 360, 396, 406, 412, 418). On June 23, 2004, plaintiff saw Thomas B. Corsolini, M.D. (Tr. at 359, 389, 419, 420). Plaintiff complained that she was still having pain in her middle back that had kept her from returning to work. "She does not complain of any radiation of She is able to demonstrate normal pain to her legs or her arms. lumbar and thoracic range of motion with an indication of discomfort with full forward bending and full back bending. 11 Palpation finds an area along the lower left thoracic paraspinal group that seems to be mildly uncomfortable to direct touch. My impression is that this is not a significantly impairing type of discomfort. I gave Biofreeze analgesic gel for home use, and I also reviewed stretches that Ms. McMurray can do on her own. reviewed over-the-counter medications. I think she should be able to return to unrestricted work tomorrow, and I am not planning on seeing her again in followup." On June 24, 2004, plaintiff was released to return to work full time with no restrictions by Dr. Corsolini (Tr. at 358, 395, 405, 421). Her diagnosis was "back strain" and treatment was "over the counter medicine." June 25, 2004, is plaintiff's alleged onset of disability. Thomas Corsolini, M.D., rendered his opinion (on May 9, 2005, after having reviewed plaintiff's August 25, 2004, MRI of her mid and lower back, referenced below) that plaintiff reached maximum medical improvement on August 1, 2004 (Tr. at 363, 423). He found that she sustained a mid and lower back strain on June 1, 2004. "I would not place any limitations on her ability to work, and I do not think that any further medical treatment is indicated." On August 11, 2004, plaintiff saw Dr. Oliver complaining of back pain since May 28, 2004 (Tr. at 377-378, 485-486, 536-537, 12 620-621). Plaintiff reported that her pain was "nearly She unbearable at times, can't pick up 2 year old grandchild." reported that Skelaxin (a muscle relaxer) had not been much help; Motrin (non-steroidal anti-inflammatory) had helped some. also reported daily headaches. She The physical exam section of the form is blank except a notation of muscle spasms and decreased flexion. Dr. Oliver assessed low back pain. He told her to increase her Motrin to 800 mg. per day and do stretching exercises. He told her to return as needed. The appointment, which lasted 20 minutes, included counseling regarding her diagnosis, compliance with medication, and exercise. On August 25, 2004, plaintiff had an MRI of her lumbar spine (Tr. at 357, 379-380, 428, 483-484, 540-541, 624-625). impression was "largely unremarkable exam." The Plaintiff had mild degenerative disc disease of the facets at L4-5. On September 15, 2004, plaintiff saw Dr. Oliver for a consult on her MRI (Tr. at 374-376, 481-482, 534-535, 618-619). The physical exam section of the form was left blank with the exception of a notation that she was oriented times three with normal mood and affect. He assessed chronic low back pain. He gave her a prescription for Ultram2, told her to continue stretching exercises, and referred plaintiff to a pain Ultram is a narcotic-like medication used to treat moderate to severe pain. 13 2 specialist. minutes. The visit was dominated by counseling and lasted 15 That same day, Dr. Oliver wrote, on a St. John's Clinic - Republic prescription pad, a prescription limiting plaintiff's lifting to no more than ten pounds3 (Tr. at 385). On October 18, 2004, plaintiff completed an orthopedic history at St. John's Orthopedic Clinic (Tr. at 552-553). She reported her current medications as Ibuprofen (non-steroidal anti-inflammatory) and Ultram (narcotic-like pain reliever). reported that she was rarely exercising but she continued to smoke 1/2 pack of cigarettes per day. as "CNA". She listed her occupation She Under review of symptoms, plaintiff checked headaches, There is no indication of any exam, The form was reviewed arthritis, and joint pains. and the diagnosis is listed as "PO2 97%". by Robert Wyrsch, M.D. On November 15, 2004, plaintiff saw Dr. Oliver for back pain that she reported was aggravated by lying down, sitting, or standing (Tr. at 371-372, 479-480, 532-533, 616-617). She said that she had gotten a little better during physical therapy, but then she got worse after they did electrical stimulation. On exam, plaintiff had muscle spasm in her back and decreased range Also in the record is a message on a printed St. John's Clinic - Republic message pad. It is undated. It lists plaintiff's name and phone number and says, "Wants note for work until she can get into pain specialists. Unable lift over 10 lbs." In another handwriting, there appears the following: "OK" with illegible initials. 14 3 of motion (no range of motion numbers were listed). Dr. Oliver Under assessed acute myofascial lumbar strain and low back pain. treatment plan, he recommended stretching exercises. Under "discharge medications", he checked "see medication log" and wrote Flexeril (muscle relaxer), Motrin (non-steroidal antiinflammatory) 800 mg., Lorcet (narcotic). up as needed. He told her to follow The appointment lasted 15 minutes. On December 15, 2004, plaintiff saw Dr. Oliver for a following up on back pain (Tr. at 369-370, 476, 478, 530-531, 614-615). He noted that her pain had improved with good The physical exam section of the form compliance with therapy. noted that plaintiff was alert and in no acute distress, her neck was normal and non-tender, she had no vascular compromise, she had vertebral tenderness in her back with decreased range of motion (45E flexion, 20E extension, 15E RLF, and 15E LLF), straight leg raising was negative, she was oriented times three with normal mood and affect, she was in no respiratory distress, and she had a regular heart rate and rhythm. Plaintiff reported that her pain was moderate and interfered with performing household chores in that she was only able to work for 30 minutes before needing a break. He assessed low back pain. Dr. Oliver recommending stretching exercises, Motrin up to three times a 15 day, and Tylenol for headaches. The visit lasted 15 minutes. He told her to return as needed. On May 4, 2005, plaintiff completed a Patient Intake Questionnaire at St. John's Clinic, Occupational Medicine (Tr. at 364-365, 424-427). She reported that she had been exercising regularly and that she had smoked 1/2 pack of cigarettes per day for the past 20 years. She saw Dr. Corsolini who noted that he had treated plaintiff with physical therapy after a May 2004 injury to her back. "We did recommend return to regular work, most likely near the end of June, and she says she worked one shift and was terminated by that employer. . . . She says she has chronic low back pain and is now scheduled to see the pain clinic later this month. She said it is so bad that some mornings her husband has to help lift her out of bed. Nonetheless, she still drives a car and does some limited housework. She has a 3-year-old grandchild in the home with her, but says she cannot lift this child anymore. She says her pain is in her low back without radiation to her legs, walking and sitting generally are not particularly painful, just uncomfortable. She takes 10 mg hydrocodone [narcotic] four times daily and 800 mg ibuprofen [non-steroidal anti-inflammatory] about twice daily. relaxer] at night." She also takes 10 mg Flexeril [muscle Plaintiff's physical exam revealed normal 16 muscle strength, normal and pain-free range of motion in her hips, the ability to walk smoothly without evidence of limp or hesitation, and the ability to squat independently. Straight-leg raising showed some evidence of low back pain but no leg pain. Plaintiff could bend backwards 20E at the waist and forward 60E. Palpation in the lower back was a little uncomfortable, lumbar rotation test was negative, lumbar compression test resulted in plaintiff's report of low back pain. "At this time, the examination does not seem to be consistent with the degree of discomfort and functional impairment reported by Ms. McMurray. need to obtain her records including her MRI from last year. may followup by telephone after that is available." On May 18, 2005, plaintiff was seen by Benjamin Lampert, M.D., at St. John's Pain Management Center (Tr. at 439-440, 453454). "The patient has been having central lower back pain since This was originally a Workmen's I She injuring herself at work. Compensation claim which was denied and she is in litigation about it." Plaintiff reported that her pain was in her central lower back 85% of the time and 15% of the time it radiated into her upper thighs. "Her pain is so severe in the morning that her She has a long history husband has to help her get out of bed. of smoking cigarettes. She has had a significant amount of anxiety and stress lately as well in that she has to manage a 17 three year old granddaughter who she is raising. Her lower back pain is worse when she bends over and ranges between 5-10/10 in severity. She has been taking some hydrocodone [narcotic], nonsteroidal antiinflammatory medications, and Flexeril [muscle relaxer]." Plaintiff's gait was normal. She had some tenderness She had some pain She had full to light touch and positive Waddell's signs.4 behaviors and appeared to be somewhat depressed. range of motion in her back with pain. negative. Straight leg raising was Plaintiff had good range of motion in the hips, knees, Plaintiff's neurological exam was normal, her mood and ankles. and affect were appropriate, she was alert and oriented times three. Her short-term memory and higher cognitive functioning Dr. Lampert reviewed plaintiff's lumbar MRI films. were intact. 4 Waddell's signs are a group of physical signs, first described by Waddell et al in 1984, in patients with low back pain. They are thought to be indicators of a non-organic or psychological component to pain. Historically they have been used to detect "malingering" patients with back pain. Waddell's signs are: Superficial tenderness - skin discomfort on light palpation; Nonanatomic tenderness - tenderness crossing multiple anatomic boundaries; Axial loading - eliciting pain when pressing down on the top of the patient's head; Pain on simulated rotation - rotating the shoulders and pelvis together should not be painful as it does not stretch the structures of the back; Distracted straight leg raise - if a patient complains of pain on straight leg raise, but if the examiner extends the knee with the patient seated (e.g., when checking the Babinski reflex); Regional sensory change - Stocking sensory loss, or sensory loss in an entire extremity or side of the body; Regional weakness Weakness that can be overpowered smoothly (organic weakness will be jerky, with intermittent resistance); Overreaction Exaggerated painful response to a stimulus that is not reproduced when the same stimulus is given later. 18 "All of her discs appear to be pristine. She had some mild spondylosis at L4-5 bilaterally but no signs of neural impingement. . . . There may be a very slight loss of disc signal in the L4-5 disc but this would be somewhat of a stretch to call." Dr. Lampert assessed chronic back pain, smoking history, major depression, and "some psychological overlay related to secondary gain with her husband and possible primary gain with litigation." He suggested that plaintiff either try to get through her lawsuit or drop it and "concentrate on functioning". He recommended she not take the hydrocodone He gave her a prescription (narcotic) but some antidepressants. for Cymbalta and explained that it is fairly good at relieving pain. "I think more effective stress and depression management might help significantly with her back pain." On July 28, 2005,5 plaintiff was seen by Mary Bolser-DeClue, R.N., at St. John's Pain Management Center (Tr. at 441-447, 451452). Plaintiff was asked to check the type of pain she was suffering - she checked right and left leg pain and back pain but did not check head pain. Plaintiff reported some confusion with her Cymbalta, having started at 30 mg., increased to 60 mg., and decreased again to 30 mg. 5 Ms. Bolser-DeClue provided a new The first page of the record is dated July 28, 2004; however, the body of the record refers to a visit to Dr. Lampert in May 2005, and the second page of the record is dated July 28, 2005. 19 prescription for 60 mg. of Cymbalta. with sleeping. Plaintiff reported problems "Of her back, she reports that she feels like she gets a very sharp sting that hits her in the middle of the back and goes down the left leg. She experiences numbness in her On lower buttock and her left leg she feels like dead weight." exam plaintiff was observed to be alert and oriented times three in no acute distress, attention and concentration were focused, mood and affect were appropriate. Her gait was normal, she could stand on heels and toes, she could flex forward to about 60 degrees and extend to 10 to 15 degrees. with extension. on palpation. She was limited by pain She had some tenderness in the low back region She had no tenderness over the sacroiliac joints. "[W]ith any test that I do, Straight leg raising was negative. her face expresses pain before the actual test is completed, and actually getting through the examination, she finds that she has not the pain that she anticipated having." Ms. Bolser-DeClue assessed chronic back pain, history of smoking, and "symptom amplification with positive axial loading6 and rotation and overreaction of facial expressions." She recommended Celebrex for inflammation, Amitriptyline for sleep, and told plaintiff to do exercises twice a day. Axial loading (pressing down on the top of the head) is one of the Waddell's signs used to detect malingering or a psychological explanation for back pain without a physical cause. 20 6 On August 23, 2005, plaintiff was seen at the emergency department of St. John's (Tr. at 465-470). She reported back She reported pain which had gotten worse over the past two days. her pain a ten out of ten, said it was exacerbated by movement and relieved by nothing. The form indicates plaintiff was Plaintiff had pain with smoking one pack of cigarettes per day. range of motion in her back. Straight leg raising was negative She was given on the right, positive at 30E on the left. prescriptions for Percocet (narcotic) and Flexeril (muscle relaxer). On August 29, 2005, plaintiff was seen by Mary BolserDeClue, R.N., at St. John's Pain Management Center (Tr. at 433436, 449-450,455-456, 459-460). that affects both of her hips. Plaintiff reported back pain She said she was unable to shave her legs because flexing forward caused her to have low back spasms. Plaintiff was currently taking ibuprofen (non-steroidal anti-inflammatory), Amitriptyline (antidepressant), Celebrex (non-steroidal anti-inflammatory), and Cymbalta (antidepressant). She reported that none of those medications made any difference in her pain level. Plaintiff said she went to the emergency room a week prior and was given Percocet (narcotic) and Flexeril (muscle relaxer) but those did not help her pain either. Plaintiff continued to smoke a half a pack of cigarettes per day. 21 "She has sleep disturbance with her pain, and she reports that she feels like she has been beaten with a ball bat. She also reports that she feels like she is just constantly irritable." On exam plaintiff was observed to be alert and oriented times three, she was in no acute distress, her attention and concentration were focused, her mood and affect were appropriate. Plaintiff had a normal gait and was able to stand on her toes and heels. Her back was tender on the lower lumbar spine and on the Straight leg raising was "very Reflexes were diminished sacroiliac joints bilaterally. limited to less than 20E bilaterally". but muscle strength was 5/5. Ms. Bolser-DeClue assessed lumbar She recommended Effexor "I am going to refer her back pain, depression, and anxiety. (antidepressant) for hot flashes. to her primary care physician to evaluate her hormones to see if she is premenopausal and if there is something that can be given to her to relieve her of her irritability and mood swings." On September 20, 2005, plaintiff saw Dr. Oliver for a follow up of back pain (Tr. at 367-368, 474-475, 528-529, 612-613). Plaintiff also reported mood swings and hot flashes. Dr. Oliver noted that plaintiff's pain had improved with good compliance with therapy. The physical exam section of the form was blank except for a notation that plaintiff was alert and in no acute distress, she was oriented times three with normal mood and 22 affect, she was in no respiratory distress, and she had a regular heart rate and rhythm. He assessed chronic pain; and where the "? perimenopausal". The visit form asks for the site, he wrote: was "dominated by counseling" and he spent 15 minutes with plaintiff. The treatment plan section of the form was blank. On October 12, 2005, Kenneth Burstin, Ph.D., completed a Psychiatric Review Technique (Tr. at 165-178). plaintiff's mental impairment is not severe. He found that He found that her depression resulted in no restriction of activities of daily living; no difficulties in maintaining social functioning; no difficulties in maintaining concentration, persistence, or pace; and no episodes of decompensation. following: 49-year-old claimant who alleges disability due to depression and musculoskeletal restrictions. The cl[aimant] reports being prescribed celebrex, cymbalta and effexor, which she may or may not be taking as prescribed. No MER [medical records] from reported prescribing source, and MDI [medically diagnosed impairment] is by inference only from reported RX [prescription]. The MER does not indicate that the claimant has c/o [complained of] depression at her visits for tx. [treatment], she has no admissions for any psych-related impairment and has never been referred to a MH [mental health] professional. 9/05 MER from Dr. Oliver noted normal mood and affect. Her ADLs [activities of daily living] indicate that she cares for one child and one grandchild. She suggests that she doesn't like to talk to others, and that she doesn't like change, but otherwise does not allege psych-related In support, he wrote the 23 limitations, and there is no support for allegations in the MER. Technically, no MDI [medically diagnosed impairment]; however, inferring MDI from Rx [prescriptions], there is no clear evidence of severe, much less disabling, limitations. On October 27, 2005, plaintiff completed an orthopedic history at St. John's Orthopedic Clinic (Tr. at 550-551). She reported that her current medications were Ibuprofen (nonsteroidal anti-inflammatory) and Effexor (antidepressant). She reported doing monthly stretching exercises and continuing to smoke 1/2 pack of cigarettes per day. Under occupation, plaintiff wrote "CNA 15 yrs". Under review of symptoms, plaintiff checked headaches, migraines, joint pains and night pain. diagnosis section of the form is blank, and there is no indication that anything was done other than recording plaintiff's height, weight, blood pressure, and pulse. The form indicates it was reviewed by Dr. Wyrsch. The On November 8, 2005, plaintiff saw Dr. Wyrsch (Tr. at 491497). Plaintiff reported tingling and numbness in her hands. At the time she was taking ibuprofen (non-steroidal antiinflammatory) and Effexor (antidepressant). Plaintiff was observed to be "healthy appearing" and alert and oriented. exam, plaintiff had positive Phalen's7 and Tinel's8 tests On The patient rests his elbows on a flat surface such as a desk, with the elbows bent and the forearms up. The patient then 24 7 bilaterally. She was assessed with continued symptoms of carpel tunnel syndrome in both hands. She underwent carpel tunnel release on her left hand as an outpatient procedure. On November 30, 2005, plaintiff had an ultrasound of her abdomen after complaining of right upper quadrant pain (Tr. at 511). The results were normal. On December 11, 2005, plaintiff was seen in the emergency department of Cox Health (Tr. at 502-508). She complained of "Tried smoking, cough, shortness of breath, and chest tightness. but couldn't." She listed Ibuprofen (non-steroidal anti- inflammatory), Effexor (antidepressant), Flexeril (muscle relaxer), and Hydrocodone (narcotic) as her current medications. She was assessed with bronchitis. On January 19, 2006, plaintiff saw Dr. Oliver and complained of back pain (Tr. at 526-527, 609-610). performed. No physical exam was Dr. Oliver assessed chronic back pain and prescribed The appointment lasted ten minutes. Percocet (narcotic). On February 28, 2006, plaintiff saw Dr. Oliver and complained of back pain (Tr. at 524-525, 607-608). No physical flexes his wrists, letting his hands hang down for about 60 seconds. If the patient feels tingling, numbness, or pain in the fingers within 60 seconds, he may have carpal tunnel syndrome. Examiner taps on the inside of the wrist over the median nerve. If the patient feels tingling, numbness, "pins and needles," or a mild "electrical shock" sensation in the hand when tapped on the wrist, the patient may have carpal tunnel syndrome. 25 8 exam was performed. Dr. Oliver prescribed Percocet (narcotic) The appointment lasted and recommended chiropractic adjustment. ten minutes. On March 30, 2006, plaintiff saw Dr. Oliver and complained of back pain and coughing (Tr. at 522-523, 605-606). She reported coughing "all the time" and said her symptoms were interfering with her sleep. notation "trying to quit." restless legs. She was listed as a smoker, with the She was diagnosed with pneumonia and Dr. Oliver prescribed Levaquin (antibiotic), Percocet (narcotic), and Requip (treats restless leg syndrome). The appointment lasted 15 minutes. On May 9, 2006, plaintiff returned to see Dr. Oliver and complained of chest pain, hip pain, and back pain "worse recently from coughing" (Tr. at 520-521, 602-603). The coughing was She was diagnosed worsened by nothing, relieved by lying down. with a virus and told to use non-steroidal anti-inflammatories. Her Effexor (antidepressant) was refilled. return as needed. She was told to The appointment lasted ten minutes. On June 1, 2006, plaintiff saw Dr. Oliver and complained of trouble sleeping (Tr. a 518-519, 600-601). The only medication The listed was Ibuprofen (non-steroidal anti-inflammatory). physical exam section of the form is blank except for no respiratory distress, normal breath sounds, and normal heart 26 rate, rhythm, and sounds. He assessed chronic pain in the back Discharge medication was and hips and ringing in the ears. Percocet (narcotic). months. He told her to come back in three to four The appointment lasted 15 minutes. On June 13, 2006, plaintiff had an MRI of her head due to ringing in the ears and hearing loss (Tr. at 538-539, 622-623). The MRI was normal. On August 16, 2006, plaintiff saw Dr. Oliver for a "suspicious mole" on her leg (Tr. at 516-517, 598-599). treatment plan is listed, no exam was performed. lasted 15 minutes. On October 12, 2006, plaintiff had x-rays of her hands after complaints of pain and swelling (Tr. at 548-549). Her No The appointment medications were listed as Ibuprofen (non-steroidal antiinflammatory), Flexeril (muscle relaxer), Mobic (non-steroidal anti-inflammatory), Effexor (antidepressant), and Requip (treats restless leg syndrome). She reported rarely exercising and that Under review of she was smoking 1/2 pack of cigarettes per day. symptoms, plaintiff checked depression, headaches, migraines, and joint pains. On January 31, 2007, plaintiff was examined by Shane L. Bennoch, M.D., of Missouri Independent Medical Evaluations, LLC (Tr. at 558-584). Dr. Bennoch outlined plaintiff's report of the 27 history of her hand pain and problems and her back pain beginning with her on-the-job injury on May 28, 2004. He then reviewed medical records of plaintiff's treating physicians since 1998. Portions of Dr. Bennoch's report are as follows: PHYSICAL EXAMINATION: Mental Status: At the present by observation, she does not appear to have depressed affect. Thought content appears to be appropriate as does speech and behavior. ***** Balance/Gait: She can heel-to-shin and heel to toe walk without any difficulty. She does not have a limp. Straight leg raising: While lying she is positive for straight leg raising bilaterally at about 50 degrees and describes the pain going into her hips. While sitting, she is negative bilaterally for straight leg raising. MUSCULOSKELETAL EXAM: Spine: Lumbar ROM: NORMAL FLEXION EXTENSION L LAT FLEXION R LAT FLEXION 60 25 25 25 PATIENT 50 20 10 8 Palpation: . . . She is tender along the lumbar spine and both sacroiliac joints. She also has some tenderness along the paraspinal muscles although it is not reproducible. 28 Comments: The patient with axial loading9 does complain of pain in her low back area. She does not appear to react inappropriately however to touching of the skin as far as describing pain. ***** WRISTS & HANDS: ROM: She appears to flex, extend, radial and ulnar deviate normally. Entrapment: Tinel's and Phalen's are positive bilaterally. Finkelstein's10 positive on the right thumb and negative on the left. Opposition: The patient can thumb-to-fifth finger oppose. Atrophy: No muscle atrophy. ***** MUSCLE STRENGTH: QUADS Right Left 4/5 4/5 HAMSTRINGS 4/5 4/5 DORSIFLEXION 5/5 5/5 PLANTAR FLEXION 5/5 5/5 HIPS: While lying flat she appears to have normal hip range of motion with normal internal rotation and external rotation without complaints of pain in her back or hips. Patricks testing11 is positive left not right. Axial loading (pressing down on the top of the head) is one of the Waddell's signs used to detect malingering or a psychological explanation for back pain without a physical cause. Examiner passively flexes thumb across the palm. Thumb pain suggests De Quervain's Tenosynovitis - inflammation of the thumb extensor tendons. Thigh and knee of the supine patient are flexed, the external malleolus rests on the patella on the opposite leg, and 29 11 10 9 ***** OPINIONS AND DIAGNOSIS: THE OPINIONS AND DIAGNOSIS ARE BASED ON THE MEDICAL RECORDS PROVIDED TO ME (THESE ARE AVAILABLE AT OUR OFFICE FOR INSPECTION) AND THE HISTORY AND PHYSICAL WERE PERSONALLY COMPLETED BY ME. THEY ARE BASED ON A REASONABLE DEGREE OF MEDICAL CERTAINTY. DIAGNOSES OF PRESENT INJURY: 1. 2. 3. 4. 5. 6. 7. 8. Carpal tunnel syndrome of the right hand. Carpal tunnel release of the right hand. Reoccurrence of carpal tunnel syndrome in the right hand. De Quervain's tenosynovitis on the right hand. Dorsal compartment release surgery of the right thumb. Reoccurrence of first dorsal compartment syndrome of the right thumb. Fall and twisting injury of the lower back with musculoligamentous strain with tearing and likely scarring with persistent pain. Twisting injury to the sacroiliac joints bilaterally mostly with ligamentous injury and persistent pain. DIAGNOSES OF PREEXISTING INJURIES/DISEASES: 1. 2. Depressi on. Migraine headaches. the knee is depressed; production of pain indicates arthritis of the hip. Also known as Fabere sign, from the first letters of movements that elicit it (Flexion, ABduction, External Rotation, Extension). 30 CONCLUSIONS: 1. MMI: In my opinion, the patient has reached maximum medical improvement to both her right and left hands and to her right thumb. The patient has also reached maximum medical improvement to her lower back. 2. CAUSATION: It is my opinion that the events related to her work at Missouri Rehabilitation was [sic] the prevailing factor in causing the injuries to both hands, both wrists and to her right thumb resulting in impairments. It is also my opinion that the accident that occurred on May 28, 2004 was the prevailing factor in injuring her lower back resulting in persistent impairment. IMPAIRMENT RATINGS: A. PRESENT: Pertaining to and as a direct result of the events leading up to 2002 and beyond while employed by InteliStaf Health Care, it is my opinion that the following industrial impairment exists that is a hindrance to employment or reemployment: 1. There is a 30% permanent and partial impairment to the right upper extremity rated at the right wrist and hand due to carpal tunnel syndrome. Rating takes into account the fact that the patient had surgery for carpal tunnel release and also takes into account that she had failed surgery with return of carpal tunnel symptoms and persistent complaints today. There is a 25% permanent and partial impairment to the left upper extremity rated at the left wrist and hand due to carpal tunnel syndrome. Rating takes into account the fact that the patient required surgery and did have relief of her symptoms although she has some mild symptoms remaining today. 3. 2. 31 3. There is a 20% permanent and partial impairment to the right upper extremity rated at the right thumb due to de Quervains tenosynovitis. The rating takes into account the fact that the patient had a first dorsal compartment release with return of her symptoms following the surgery and continued pain today. Pertaining to and as a direct result of the accident occurred on May 28, 2004 while employed by InteliStaf Health Care, it is my opinion that the following industrial impairment exists that is a hindrance to employment or re-employment: 1. There is a 15% permanent and partial impairment to the body as a whole rated at the lumbar spine and sacroiliac joints due to musculoligamentous strain of the lumbar spine and ligamentous injury of the sacroiliac joints. The rating takes into account the fact that based on the persistent pain especially with overactivity that the patient has sustained tearing of both muscles and ligaments in the lumbar spine area and ligaments in the sacroiliac joint areas resulting in sacroiliac joint dysfunction and flare-up of pain with ov eracti v i ty. B. PRE-EXISTING: There are impairments that exist that are a hindrance to employment or re-employment. 1. There is a 15% permanent and partial impairment to the body as a whole rated at the brain due to chronic depression diagnosed as a teenager resulting in the patient being on medication since that time for depressi on. There is a 5% permanent and partial impairment to the body as a whole rated at the brain due to migraine headaches. This rating takes into account the fact that the migraine headaches have existed since age 22 and the patient requires medication for control. 2. 32 THE COMBINATION OF HER IMPAIRMENTS DOES CREATE A SUBSTANTIALLY GREATER IMPAIRMENT THAN THE TOTAL OF EACH SEPARATE INJURY/ILLNESS, AND A LOADING FACTOR SHOULD BE ADDED. ANALYSIS: The patient did strike me as having some symptom magnification and also did have some positive Waddell's signs,12 however this may be more related to her underlying psychopathology relating to her depression than specifically related to her physical injuries. . . . In my opinion neither her symptom magnification nor some question of neurological findings really affects the specific impairments. The patient also had a positive response to axial loading something that one would not expect with any kind of back pain. However again, it is fairly self evident based on the examination of several physicians including myself that the patient in fact does have pathology to the lower back and sacroiliac joints from her fall in June [sic] of 2004. Waddell's signs are a group of physical signs in patients with low back pain. They are thought to be indicators of a nonorganic or psychological component to pain. Historically they have been used to detect "malingering" patients with back pain. Waddell's signs are: Superficial tenderness - skin discomfort on light palpation; Nonanatomic tenderness - tenderness crossing multiple anatomic boundaries; Axial loading - eliciting pain when pressing down on the top of the patient's head; Pain on simulated rotation - rotating the shoulders and pelvis together should not be painful as it does not stretch the structures of the back; Distracted straight leg raise - if a patient complains of pain on straight leg raise, but if the examiner extends the knee with the patient seated (e.g., when checking the Babinski reflex); Regional sensory change - Stocking sensory loss, or sensory loss in an entire extremity or side of the body; Regional weakness Weakness that can be overpowered smoothly (organic weakness will be jerky, with intermittent resistance); Overreaction Exaggerated painful response to a stimulus that is not reproduced when the same stimulus is given later. 33 12 I do not think there is any evidence of disc disease or nerve impingement. All of her injuries appear to be related to muscles and ligaments both in the lumbar sine and the sacroiliac joints. Again based on her symptoms, it is likely she has had tearing of ligaments and muscle resulting in scarring which would be the most likely explanation for the persistent pain, especially with overactivity. I would not recommend any further evaluation or treatment for her carpal tunnel symptoms. The patient does continue to be fairly symptomatic with her back and I would recommend ongoing treatment with anti-inflammatories and muscle relaxers, medications she is already on and judicious use of hydrocodone. At present, I think she may be using hydrocodone too frequently at four times a day. I would recommend she have ongoing pain management to monitor her oral medications. On February 8, 2007, Dr. Bennoch completed a Medical Source Statement Physical (Tr. at 585-588). He found that plaintiff could occasionally lift 20 pounds and frequently lift less than ten pounds; stand or walk about six hours per day; sit without limitation but must periodically alternate sitting and standing; is limited in her ability to push or pull with her upper and lower extremities (although Dr. Bennoch did not, as the form asked, describe the nature and degree of the limitation); should never climb ramps, poles, ladders, ropes, or scaffolds; should never balance on narrow, slippery or moving surfaces; may occasionally climb stairs, crouch, crawl, or stoop; may not 34 perform any of these postural activities repetitively; may reach without limitation; may only occasionally handle, finger, or feel; and has no environmental, visual, or communicative limitations. On April 29, 2007, Dr. Oliver prepared a Medical Source Statement Physical (Tr. at 590-594). He found that plaintiff could lift ten pounds frequently or occasionally; stand or walk for a total of five hours per day and for 30 minutes at a time; sit for a total of six hours per day and for a maximum of one hour at a time; had an unlimited ability to push or pull with her upper or lower extremities; should never stoop or crouch; could occasionally climb, balance, kneel, or crawl; had an unlimited ability to reach, handle, finger, or feel; and had no environmental, visual or communicative limitations. Dr. Oliver checked "yes" when asked whether rest beyond the normal rest breaks of 15 minutes in the morning and afternoon and 30 minutes for lunch would be "medically appropriate and/or necessary to the patient for the chronic back pain". When asked to describe the "principal clinical and laboratory findings, signs, and symptoms or allegations" from which the limitations were concluded, Dr. Oliver wrote, "chronic low back pain requiring chronic analgesic medications." Dr. Oliver was asked how often plaintiff would be expected to miss work due to her impairments or treatments, and 35 he checked "three times." Finally, Dr. Oliver was asked whether in his medical opinion, the non-exertional limitations were "medically founded in the principal clinical and laboratory findings, signs, and symptoms, and documented by objective findings" and he checked, "yes." On August 2, 2007, plaintiff saw Dr. Oliver for a follow up on chronic pain and depression (Tr. at 597). "She has been out of medicines for a little while, mainly because she had not had an appointment for a while, so we made her come back. She has done better off the Effexor [antidepressant] as far as some side effects from it, but still needs something for her depression. She has never been on Celexa [antidepressant] though. The Norco [narcotic] seems to work well. She tries to avoid things that are too habit forming as she has a problem with addictions." Dr. Oliver performed an exam and found that plaintiff had tenderness in the lower thoracic lumbar region of her back. He assessed He chronic low back pain with fibromyalgia and depression. prescribed Norco (narcotic) and Celexa (antidepressant) and told her to follow up in about five months. C. SUMMARY OF TESTIMONY During the October 16, 2007, hearing, plaintiff testified; and Dr. Cathy Hodgson, a vocational expert, testified at the request of the ALJ. 36 1. Plaintiff's testimony. At the time of the hearing, plaintiff was 41 and is currently 43 (Tr. at 648). Plaintiff testified that she lives with her husband and her six-year-old granddaughter (Tr. 648, 670). She is covered by Medicaid (Tr. at 648). She has a GED (Tr. at 648-649). Plaintiff worked as a certified nurse's She quit that job assistant from 1997 through 2000 (Tr. at 649). to go to college (Tr. at 649). couple of months (Tr. at 649). She only attended college for a Plaintiff then worked as a certified nurse's assistant from 2001 until 2004 (Tr. at 649). She left that job after she was injured on the job (Tr. at 649). Plaintiff had a worker's compensation claim which, at the time of the administrative hearing, was resolved with respect to the employer insured but was ongoing with respect to the second injury fund (Tr. at 672). Plaintiff injured her tail bone and as a result cannot walk or drive for very long and she cannot bend over very often (Tr. at 650, 653). In an average week, plaintiff will drive about 30 miles to her granddaughter's bus stop, to Wal-Mart, to her children's houses, and to the grocery store (Tr. at 670). cannot pick up her grandchildren (Tr. at 653). plaintiff can walk a half a mile (Tr. at 653). She On a good day, On a bad day, she The stays inside and just walks around the house (Tr. at 653). 37 most she can walk on a bad day is about 500 feet, or one city block (Tr. at 654). In a typical week, plaintiff has about five Plaintiff can She bad days and two to three good days (Tr. at 654). stand for a maximum of five minutes at a time (Tr. at 657). thinks she could stand for an hour total in an eight-hour work day (Tr. at 657). When plaintiff tries to drive, it hurts to sit She in one position and her hands and wrists hurt (Tr. at 654). drove to the hearing, but she testified that her husband usually drives her around (Tr. at 654). Plaintiff can only sit for about She later 20 minutes before she is in pain (Tr. at 655). testified that she could sit for a total of ten to 20 minutes per eight-hour workday, was reminded that she had said she could sit for 20 minutes at a time, and then testified that she could sit for a total of three hours per day (Tr. at 657). She first testified she can lift from waist to shoulder height about ten pounds maximum (Tr. at 655). When asked how much she could lift from waist to shoulder height for 2 1/2 hours per workday, she said 20 to 25 pounds (Tr. at 655). back to ten pounds (Tr. at 656). She then changed her answer If she had to lift frequently, she could lift a maximum of five pounds (Tr. at 656). Plaintiff also had surgery on both hands for carpal tunnel syndrome and had surgery on her right hand for de Quervain's disease (Tr. at 651). Plaintiff continues to experience 38 tingling, numbness, and swelling of her hands (Tr. at 651-652). As a result, she has difficulty using her hands for vacuuming, raking, and using a computer (Tr. at 652). The vibration from the vacuum cleaner bothers plaintiff's hands, she can only rake for a short time, and she can only type for five minutes (Tr. at 652). Plaintiff also has arthritis in her hands (Tr. at 666). Plaintiff is supposed to wear a brace every day, but sometimes she does not because it rubs her wrist (Tr. at 667). She will likely need to have surgery to relieve the pain, but it will result in less mobility (Tr. at 667). When plaintiff wears her wrist brace, she has less mobility with her hand and fingers (Tr. at 667). During a typical day, plaintiff gets up at 6:30 to get her granddaughter ready for school (Tr. at 658). When her husband takes her granddaughter to the bus stop, plaintiff starts to clean the house (Tr. at 658). She watches television and takes Plaintiff She the dogs outside to go to the bathroom (Tr. at 658). cleans and dusts, then she rests for a while (Tr. at 658). starts her laundry and then goes outside to see if there is something she can do outside (Tr. at 658). She only does laundry once a week, whereas she used to do it every day (Tr. at 658). Sometimes her husband or daughter will help her with the laundry (Tr. at 658-659). Plaintiff will take her granddaughter to the 39 park and sometimes she tries to swing with her (Tr. at 671). Plaintiff cooks five times a week in the evenings (Tr. at 671). She makes things like chili dogs, and she fries foods twice a week (Tr. at 672). She cooks simple things (Tr. at 673). She washes dishes, brushes her teeth, fixes her own hair, rakes her yard, mows, and reads (Tr. at 671-672). book in about two weeks (Tr. at 672). Plaintiff can read one It takes her several hours to wash the dishes because she will wash plates and bowls then take a break; wash silverware and knives; take a break; then wash glasses, pots, and pans (Tr. at 673). Plaintiff and her husband do the grocery shopping together (Tr. at 659). (Tr. at 659). She pushes the cart and he picks up the groceries Plaintiff can get items off the shelf and put them in the basket if she does not have to stoop or reach too high (Tr. at 659). Sometimes plaintiff takes the grocery bags from the car to the house, but other times her husband or her kids will carry them (Tr. at 659). Plaintiff was first treated for depression when she was 17 (Tr. at 659-660). At the time of the hearing, plaintiff was She was taking taking Celexa, 20 mg daily (Tr. at 660). prescription Ibuprofen and Hydrocodone (a narcotic) for her back pain (Tr. at 661). 40 Plaintiff also suffers from migraines (Tr. at 661). a migraine three to four times per week (Tr. at 661). migraines last from one to three hours (Tr. at 662). Her She has Dr. Oliver told her the Ibuprofen should help with the headaches, and she was taking Flexeril (a muscle relaxer) and Requip13 for her headaches as well (Tr. at 662). When plaintiff has a migraine, she lies down in the dark, and her doctor tells her to take Advil Migraine (Tr. at 663). Finally, plaintiff suffers from hip pain which limits her standing (Tr. at 663). Plaintiff suffers from pain every day (Tr. at 663). On a typical day even with her medication, plaintiff's pain is a seven on a scale of one to ten (Tr. at 664). Without her medication, Plaintiff lies down her pain would be a "ten plus" (Tr. at 664). two to three times per day from 20 minutes to an hour each time (Tr. at 665). at 665-666). 2. Vocational expert testimony. Vocational expert Dr. Cathy Hodgson testified at the request of the Administrative Law Judge. The first hypothetical included a person with all of the limitations described by plaintiff in her testimony (Tr. at 674). 13 She sometimes uses a muscle rub on her back (Tr. Requip is used to treat restless leg syndrome. 41 The vocational expert testified that such a person could not work (Tr. at 674). The second hypothetical included a person with the limitations as described by Dr. Shane Bennoch in a medical source statement completed on February 8, 2007 (Tr. at 585-588) wherein the doctor found that plaintiff could lift 20 pounds occasionally and less than pounds frequently; stand or walk for six hours per day; must periodically alternate sitting and standing; could occasionally climb stairs, kneel, crouch, crawl, or stoop; could never climb ramps, poles, ladders, ropes, or scaffolds; could never balance on narrow, slippery, or moving surfaces; could reach in all directions including overhead; had no visual, communicative, or environment limitations; and could only occasionally handle, finger, or feel. The ALJ stated that because Dr. Bennoch did not provide a time limit for sitting, the vocational expert should assume the person could sit all day so long as there was an ability to stand from time to time (Tr. at 674-675). The vocational expert testified that such a person could work as a counter clerk, DOT 249.366-010 with 107,000 positions in the country and 2,500 in the region; or the person could be a school bus monitor, DOT 372.667-042 with 36,000 in the country and 700 in the region (Tr. at 675). 42 The next hypothetical involved a person with the limitations as set forth by Dr. Malcolm Oliver in a medical source statement completed on April 29, 2007 (Tr. at 590-594) wherein he found that plaintiff could lift ten pounds; stand or walk for five hours total and for 30 minutes at a time; sit for six hours total and for 60 minutes at a time; could occasionally climb, balance, kneel, or crawl; could never stoop or crouch; had unlimited ability to reach, handle, finger, feel, see, hear, or speak; had no environmental limitations; would need to rest beyond the normal breaks of 15 minutes each morning and afternoon and 30 minutes for lunch; and would miss three days of work per month. The vocational expert testified that such a person could not work because the person could only perform light work but could never stoop, and because the person would miss three days of work per month (Tr. at 675-676). Normally a person can miss only 1.75 days per month and maintain employment (Tr. at 676). In addition, rest periods beyond the ten to 15 minute morning and afternoon breaks and 30 minute lunch break are not tolerated (Tr. at 676). The fourth hypothetical included all of the limitations listed by Dr. Bennoch with the additional limitation that the person could lift a maximum of ten pounds (Tr. at 677). The vocational expert testified that such a person could not work (Tr. at 677). 43 V. FINDINGS OF THE ALJ Administrative Law Judge David Fromme entered his opinion on November 30, 2007 (Tr. at 16-25). Step one. The ALJ found that plaintiff has not engaged in substantial gainful activity since her alleged onset date (Tr. at 18). Step two. The ALJ found that plaintiff suffers from lumbar spine degenerative disc disease with complaints of back pain but no neurological compromise, and tendonitis/arthritis of the wrists with history of carpal tunnel syndrome, all severe impairments (Tr. at 18). He found that plaintiff's bronchitis He and depression are not severe impairments (Tr. at 18-19). found that plaintiff's mental impairment results in mild restriction of activities of daily living; mild difficulties in maintaining social functioning; and mild difficulties in maintaining concentration, persistence or pace; and no episodes of decompensation (Tr. at 19). Step three. Plaintiff's impairments do not meet or equal a listed impairment (Tr. at 19). Step four. Plaintiff retains the residual functional capacity to lift and carry 20 pounds occasionally and less than ten pounds frequently; sit, stand, and walk for six hours per day but must alternate sitting and standing/walking from time to 44 time; may occasionally kneel, crouch, crawl, stoop, and climb stairs; cannot climb ladders, ropes, scaffolds, poles, or ramps; cannot balance on narrow, slippery, or moving surfaces; is limited to occasional handling, fingering, and feeling; has an unlimited ability to reach; and has no visual, communicative, or environmental limitations (Tr. at 19). With this residual functional capacity, plaintiff cannot return to her past relevant work (Tr. at 23). Step five. Plaintiff can perform other jobs that exist in significant numbers in the economy, such as counter clerk and school bus monitor (Tr. at 23-24). VI. CREDIBILITY OF PLAINTIFF Plaintiff argues that the ALJ erred in finding that plaintiff's testimony was not credible. A. CONSIDERATION OF RELEVANT FACTORS The credibility of a plaintiff's subjective testimony is primarily for the Commissioner to decide, not the courts. v. Bowen, 862 F.2d 176, 178 (8th Cir. 1988); 830 F.2d 878, 882 (8th Cir. 1987). Rautio Benskin v. Bowen, 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); The ALJ, McClees v. Shalala, 2 F.3d 301, 303 (8th Cir. 1993). however, must make express credibility determinations and set 45 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. 1984). Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. Social Security Ruling 96-7p encompasses the same factors as those enumerated in the Polaski opinion, and additionally states that the following factors should be considered: Treatment, other than medication, the individual receives or has 46 received for relief of pain or other symptoms; and any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board). The specific reasons listed by the ALJ for discrediting plaintiff's subjective complaints of disability are as follows: [T]he claimant testified that she stopped working due to a lower back injury and bilateral carpal tunnel syndrome. She stated that she continues to have tingling and swelling of the hands and fingers and numbness of the hands and wrists. She added that she has arthritis of the hands and that she uses a hand brace, but has not seen the doctor who treats her hands in 1 year. She stated that she has difficulty with activities such as vacuuming, raking and using a computer due to her hand disorders. She stated that she is limited to typing for 5 minutes at a time. The claimant testified that, due to back pain, she is unable to bend and is limited to lifting 5 pounds frequently and 20-25 pounds occasionally, walking 1/2 mile, sitting for 20 minutes at a time and standing for 5 minutes at a time. She added that she believes she is able to stand for 1 hour total during an 8-hour work day and sit for 3 hours total during an 8-

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