Constant v. Astrue
Filing
13
ORDER denying plaintiff's motion for summary judgment and affirming the decision of the Commissioner. Signed on 7/6/12 by Magistrate Judge Robert E. Larsen. (Wilson, Carol)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
KRISTINA CONSTANT,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.
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Case No.
11-0455-CV-W-REL-SSA
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Kristina Constant 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 (1) the Appeals Council erred by not
considering the new evidence, i.e., a Medical Source Statement - Mental, and (2) the ALJ erred
in failing to fully develop the record with respect to plaintiff’s physical abilities. 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 June 28, 2007, plaintiff applied for disability benefits alleging that she had been
disabled since February 8, 2007. Plaintiff’s disability stems from degenerative disc disease,
bipolar disorder, and anxiety disorder. Plaintiff’s application was denied on August 9, 2007.
On July 23, 2009, a hearing was held before an Administrative Law Judge. On January 29,
2010, the ALJ found that plaintiff was not under a “disability” as defined in the Act. On March
8, 2011, the Appeals Council denied plaintiff’s request for review. Therefore, the decision of
the ALJ stands as the final decision of the Commissioner.
II.
STANDARD FOR JUDICIAL REVIEW
Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for judicial review of a “final
decision” of the Commissioner. The standard for judicial review by the federal district court is
whether the decision of the Commissioner was supported by substantial evidence. 42 U.S.C. §
405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Mittlestedt v. Apfel, 204 F.3d 847,
850-51 (8th Cir. 2000); Johnson v. Chater, 108 F.3d 178, 179 (8th Cir. 1997); Andler v.
Chater, 100 F.3d 1389, 1392 (8th Cir. 1996). The determination of whether the Commissioner’s decision is supported by substantial evidence requires review of the entire record,
considering the evidence in support of and in opposition to the Commissioner’s decision.
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); Thomas v. Sullivan, 876 F.2d 666,
669 (8th Cir. 1989). “The Court must also take into consideration the weight of the evidence
in the record and apply a balancing test to evidence which is contradictory.” Wilcutts v. Apfel,
143 F.3d 1134, 1136 (8th Cir. 1998) (citing Steadman v. Securities & Exchange Commission,
450 U.S. 91, 99 (1981)).
Substantial evidence means “more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson
v. Perales, 402 U.S. at 401; Jernigan v. Sullivan, 948 F.2d 1070, 1073 n. 5 (8th Cir. 1991).
However, the substantial evidence standard presupposes a zone of choice within which the
decision makers can go either way, without interference by the courts. “[A]n administrative
decision is not subject to reversal merely because substantial evidence would have supported
an opposite decision.” Id.; Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988).
III.
BURDEN OF PROOF AND SEQUENTIAL EVALUATION PROCESS
An individual claiming disability benefits has the burden of proving she is unable to
return to past relevant work by reason of a medically-determinable physical or mental
2
impairment which has lasted or can be expected to last for a continuous period of not less than
twelve months. 42 U.S.C. § 423(d)(1)(A). If the plaintiff establishes that 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 the plaintiff can perform. Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir.
2000); Brock v. Apfel, 118 F. Supp. 2d 974 (W.D. Mo. 2000).
The Social Security Administration has promulgated detailed regulations setting out a
sequential evaluation process to determine whether a claimant is disabled. These regulations
are codified at 20 C.F.R. §§ 404.1501, et seq. The five-step sequential evaluation process used
by the Commissioner is outlined in 20 C.F.R. § 404.1520 and is summarized as follows:
1.
Is the claimant performing substantial gainful activity?
Yes = not disabled.
No = go to next step.
2.
Does the claimant have a severe impairment or a combination of impairments
which significantly limits 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 Commissioner.
5.
Does the impairment prevent the claimant from doing any other work?
Yes = disabled.
No = not disabled.
3
IV.
THE RECORD
The record consists of the testimony of plaintiff and vocational expert Denise Waddell,
in addition to documentary evidence admitted at the hearing and presented to the Appeals
Council.
A.
ADMINISTRATIVE REPORTS
The record contains the following administrative reports:
Earnings Record
Plaintiff earned the following income from 1995 through 2007:
1995
$ 249.58
1996
822.26
1997
0.00
1998
355.96
1999
0.00
2000
4,771.60
2001
3,175.82
2002
0.00
2003
1,600.79
2004
2,505.46
2005
2,131.41
2006
5,131.68
2007
238.88
(Tr. at 121).
4
Disability Report - Adult
In an undated Disability Report, plaintiff stated that the “illness, injuries, or conditions
that limit her ability to work” consist of bipolar disorder, anxiety, and phobias (Tr. at 143).
When asked to explain how her condition limits her ability to work, plaintiff wrote, “I do not
have the ability to make correct decisions all the time. I have phobias about germs and food.
My panic attacks are so severe that I am not able to swallow or breathe. I cannot concentrate
on one thing very long. The medications that I take make me pretty drowsy.” (Tr. at 143).
When asked why she stopped working, plaintiff wrote, “My panic attacks became severe
enough that I was no longer able to work.” (Tr. at 143).
Function Report
In a Function Report dated July 9, 2007, plaintiff described her day as follows:
I wake up at 9:00 a.m. and take first medications and give my eldest son his ADHD
medication. Then brush teeth and get clean. We then have breakfast. Then kids get
dressed. I then set [sic] and relax until my mediciane [sic] starts to work then I will
vaccum [sic] or do laundry depending on how tired the meds make me or how nervous
I am, around noon we all eat lunch. I’ll watch the kids play. After that the kids come in
and wash and sanitize there [sic] hands then I wash things and sanitize door knobbs
[sic], remotes, etc. Around 4:15 my husband comes home and he and I fix supper. We
then do dishes take more meds and go to the living room until bed. At noon I have
meals then again at bedtime if anxiety starts sometimes I go for a walk to calm down.
(Tr. at 152, 158).
Plaintiff reported that her condition poses no problem with dressing, bathing, caring for
her hair, or using the toilet (Tr. at 152). Plaintiff can do laundry, do dishes, bleach the
bathroom and sanitize things, and she spends two hours every other day performing these
tasks (Tr. at 153). She drives; and she shops for food, household goods, and clothes for an
hour about once a week (Tr. at 154). She visits with her family and takes the kids to the park
once or twice a week (Tr. at 155). She indicated that she cannot “sit still a lot” and her lifting
is limited due to “loss of muscle and weight with ulcers” (Tr. at 156). She can walk a mile and
5
then needs to rest for about 15 minutes (Tr. at 156). She can follow spoken instructions but
needs to re-read written instructions (Tr. at 156).
B.
SUMMARY OF MEDICAL RECORDS
On February 5, 2007, plaintiff saw Angela Guest, M.S., at Burrell Behavioral Health
Services (“Burrell”) for an annual assessment for Community Psychiatric Rehabilitation Center
(“CPRC”) services (Tr. at 407-412). Plaintiff reported anxiety, panic attacks, germ phobia,
feelings of choking, and racing thoughts. She said that her impairments cause no impact on
her legal situation or sexual functioning; minimal impact on her marriage, relationships,
family, hobbies, play activities, and ability to control her temper; moderate impact on her
friendships and peer relationships, activities of daily living, and ability to concentrate; and
severe impact on her job performance and financial situation. Plaintiff said her job was
stressful, she had cut her work to three days per week, and she wanted to start nursing school.
She listed her only medication as Prevacid (reduces stomach acid) and her only significant
medication condition as a stomach ulcer. Ms. Guest noted diagnoses of panic disorder,
obsessive compulsive disorder, and bipolar disorder and a GAF of 51.1 Ms. Guest
recommended that plaintiff participate in CPRC rehabilitation services and train to become a
licensed practical nurse (“LPN”).
On February 26, 2007, plaintiff was seen at the University of Missouri Health Care
Behavioral Health Services - Carroll County and was seen by Ms. Guest for an individual
treatment and rehabilitation plan (Tr. at 404). Ms. Guest diagnosed plaintiff with panic
disorder, obsessive compulsive disorder and bipolar disorder (Tr. at 411). Ms. Guest assessed
1
A global assessment of functioning of 51 to 60 means moderate symptoms (e.g., flat affect
and circumstantial speech, occasional panic attacks) or moderate difficulty in social,
occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).
6
plaintiff with a GAF of 51 and observed that her anxiety, panic and stress cause difficulty in
functioning (Tr. at 411). Ms. Guest also noted that plaintiff had reduced her work to only
three days per week due to psychological symptoms (Tr. at 411). Ms. Guest further noted that
plaintiff has a germ phobia and experiences several weeks of increased mood followed by
several weeks of decreased mood (Tr. at 411).
On March 16, 2007, plaintiff was seen at Burrell for an initial psychiatric evaluation
with Glenna Burton, M.D. (Tr. at 267-270). Plaintiff had previously received treatment at
Burrell and was diagnosed with bipolar disorder but lost her Medicaid in 1999. Plaintiff
reported panic attacks, anxiety and an episode of depression four to five months earlier which
included crying, loss of appetite and an inability to keep a job. Plaintiff endorsed other
symptoms including racing thoughts and poor concentration. Dr. Burton noted that plaintiff
was cooperative, exhibited normal affect, fair eye contact and no psychotic features. Dr.
Burton estimated that plaintiff was of average intellectual functioning. The evaluation lasted
45 minutes, and Dr. Burton diagnosed plaintiff with bipolar disorder type I2 and panic disorder
and assessed her with a GAF score of 60 (see footnote 1). Dr. Burton prescribed Depakote3
1250 mg daily, Wellbutrin4 350 mg three times per day, and Xanax5 0.5 mg as needed. That
2
Bipolar I disorder involves episodes of severe mood swings, from mania to depression.
Bipolar II disorder is a milder form, involving milder episodes of hypomania that alternate with
depression.
3
Depakote is “used to treat mania (episodes of frenzied, abnormally excited mood) in people
with bipolar disorder (manic/ depressive disorder; a disease that causes episodes of depression,
episodes of mania, and other abnormal moods).”
4
Wellbutrin is used to treat depression.
5
Xanax (alprazolam) “is used to treat anxiety disorders and panic disorder (sudden,
unexpected attacks of extreme fear and worry about these attacks). Alprazolam is in a class of
medications called benzodiazepines.”
7
same day Dr. Burton signed the assessment and treatment plan forms completed earlier by Ms.
Guest (Tr. at 404, 412).
On April 6, 2007, plaintiff returned to Burrell and was examined by Dr. Burton (Tr. at
271). Plaintiff reported that she took Depakote for four days and her mood was pretty good.
She said her concentration was better, her appetite was good, and she had no depression. She
reported a couple days of hypomania.6 Dr. Burton continued her diagnosis of bipolar disorder
and refilled the same prescriptions.
On June 1, 2007, plaintiff returned to Burrell for an examination with Dr. Burton (Tr.
at 272). Plaintiff reported side effects from her medications including drowsiness, but she had
experienced only two panic attacks since the previous visit. She reported better sleep, more
energy and increased appetite. Her concentration was good.
On August 3, 2007, plaintiff saw Dr. Burton and reported irritability, stomach troubles,
and financial stress (Tr. at 403). Plaintiff said her sister had moved in and they were “very
busy” taking care of the seven children in the house. Dr. Burton diagnosed bipolar disorder
with mood ranging from euthymia (a relatively stable mood state) to mildly depressed, and she
adjusted plaintiff’s medications, adding medication for gastrointestinal distress.
On August 9, 2007, Joan Singer, Ph.D., completed a Psychiatric Review Technique and
found that plaintiff suffered from bipolar disorder and panic disorder (Tr. at 277-287). Dr.
6
A hypomanic episode is not a disorder in itself, but rather is a description of a part of a type
of bipolar II disorder. Hypomanic episodes have the same symptoms as manic episodes with
two important differences: (1) the mood usually is not severe enough to cause problems with
the person working or socializing with others (e.g., the person does not have to take time off
work during the episode), or to require hospitalization; and (2) there are never any psychotic
features present in a hypomanic episode. A hypomanic episode is characterized by a distinct
period of persistently elevated, expansive, or irritable mood, lasting throughout at least four
days and present for most of the day nearly every day. This hypomanic mood is clearly
different from the person’s usual mood.
8
Singer found that plaintiff had mild restriction of activities of daily living; mild difficulties in
maintaining social functioning; moderate difficulties in maintaining concentration, persistence
or pace; and no episodes of decompensation (Tr. at 285). She completed a Mental Residual
Functional Capacity Assessment and found that plaintiff was not significantly limited in the
following:
P
The ability to remember locations and work-like procedures
P
The ability to understand and remember very short and simple instructions
P
The ability to carry out very short and simple instructions
P
The ability to perform activities within a schedule, maintain regular attendance, and be
punctual within customary tolerances
P
The ability to sustain an ordinary routine without special supervision
P
The ability to work in coordination with or proximity to others without being distracted
by them
P
The ability to make simple work-related decisions
P
The ability to interact appropriately with the general public
P
The ability to ask simple questions or request assistance
P
The ability to accept instructions and respond appropriately to criticism from
supervisors
P
The ability to get along with coworkers or peers without distracting them or exhibiting
behavioral extremes
P
The ability to maintain socially appropriate behavior and to adhere to basic standards of
neatness and cleanliness
P
The ability to respond appropriately to changes in the work setting
P
The ability to be aware of normal hazards and take appropriate precautions
P
The ability to travel in unfamiliar places or use public transportation
P
The ability to set realistic goals or make plans independently of others
9
She found that plaintiff was moderately limited in the following:
P
The ability to understand and remember detailed instructions
P
The ability to carry out detailed instructions
P
The ability to maintain attention and concentration for extended periods
P
The ability to complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods.
She found that plaintiff had no marked limitations.
In support of her findings, Dr. Singer stated in part as follows:
Claimant worked until 2-8-07 as a cook in a restaurant when she became unable to
work due to her condition. Claimant first started treatment for her mental impairment
in 3-07. . . . Evaluation noted good memory and at least average IQ. Claimant was
diagnosed with bipolar disorder and panic disorder. She was started on psych meds.
She followed up on 4-6-07 had reported improvement in mood. She reported that she
had a couple of days of hypomania. She reported some word finding difficulty.
Claimant followed up again on 5-1-07. She complained of only 2 panic attacks. She
reported that she is irritable and edgy and that noises bother her. She reported that she
was sleeping better and that her energy is good. Examiner noted concentration was
good but the claimant had some word finding difficulty. There wasn’t [sic] any reports
of crying or si/hi [suicidal ideation/homicidal ideation]. No evidence of any psychotic
symptoms.
*****
. . . MER [medical records] notes that claimant was having difficulties when she first
started treatment in 3-07. However she has shown some improvement with medication
as indicated by the last MER notes in 6-07 indicating limited panic attacks and
increased appetite. Examiner also noted good concentration. She reported that her
energy was pretty good but continued to complain of some word finding difficulty.
MER supports improvement in the claimant’s condition with medication. . . [S]he did
not have any difficulties in her teleclaim with the CR. Despite her condition, she
continues to care for her children, perform household chores, and cook on a fairly
regular basis. . . . The claimant doesn’t have any history of IP [inpatient] stays or ER
[emergency room] visits for anxiety for anxiety related symptoms.
Based on the total evidence, the claimant is capable of SRT [simple repetitive tasks] on a
sustained basis now and prior to DLI [date last insured] of 6-30-07.
(Tr. at 275).
10
On August 3, 2007, plaintiff returned to Burrell and was examined by Dr. Burton (Tr.
at 403). Plaintiff reported sleeping late that day and that she gets really exhausted. She was
much less irritable but was having a bit of stomach trouble. “The past week has been very
busy with her sister here. Together they have 7 kids. . . . There are financial stresses. . . .
Appetite is better. Concentration is the same.” Dr. Burton recommended taking Depakote
three times per day, for a total of 1250 mg.
On September 9, 2007, plaintiff reported to Burrell for problems distinguishing
between anxiety, mania and depression and was examined by Dr. Burton (Tr. at 402). Plaintiff
reported being easily agitated, especially with the noise level. She further reported insomnia
and waking up at 3 a.m. Plaintiff told Dr. Burton that her concentration was very poor. She
indicated that she had had a “medical hearing” two days earlier. Dr. Burton decreased
plaintiff’s Wellbutrin to 150 mg per day and added medication for gastrointestinal issues (Tr.
at 402).
On November 2, 2007, plaintiff presented to Burrell, was examined by Dr. Burton and
reported that she left her husband (Tr. at 401). She said in addition to herself and her sister,
seven children were living in her house. She had been to the emergency room twice and had
increased anxiety and insomnia but no increased depression. She also reported being moody
and very anxious and said she sleeps for only three to four hours per night. Dr. Burton
adjusted plaintiff’s medications and added Ambien for sleep.
On November 26, 2007, plaintiff went to Carroll County Memorial Hospital where
Jeanne De Motte, M.D., performed x-rays of her lumbar and cervical spine (Tr. at 388-389).
The x-ray of her cervical spine revealed degenerative disc disease at C6-7 and a small right C7
cervical rib. The x-ray of her lumbar spine revealed degenerative disc disease worse
at the L5-S1 level than L4-5; bilateral pars defect at L5 with secondary grade 1
11
spondylolisthesis7 of L5 anterior to S1; and minor right curvature of the spine.
On November 29, 2007, Alex Dymek, M.D., referred plaintiff for an orthopedic
consultation in light of her unresolved complaints of back and neck pain that she claimed to
have had for five years (Tr. at 318).
On December 12, 2007, plaintiff returned to Dr. Dymek’s office reporting continued
neck and back pain (Tr. at 319). She stated that she had an appointment in Columbia,
Missouri, at the Spine Center. Plaintiff reported that ibuprofen and naproxen hurt her
stomach; therefore, Dr. Dymek gave her a prescription for Flexeril, a muscle relaxer and
Vicodin, a narcotic.
On January 11, 2008, plaintiff returned to Burrell and was examined by Dr. Burton
(Tr. at 400). She reported that her moods feel shaky in the morning but her energy and
appetite were good and her concentration was better. Plaintiff told Dr. Burton that she was
divorcing her husband but that they were “agreeable” and that he was paying child support.
She was sleeping well with the Ambien. Dr. Burton reduced her dose of Depakote to 500 mg
twice per day and gave her Tegretol.8
On January 18, 2008, plaintiff saw Joel Jeffries, M.D., in the orthopedic clinic at
Columbia Regional Hospital, upon referral from Dr. Dymek (Tr. at 340-343). Plaintiff
complained of a long history of difficulty with her neck and low back that began five years
earlier and included “100% neck pain” and associated headaches, along with a slight
7
Spondylolisthesis is a condition in which a bone (vertebra) in the lower part of the spine
slips out of the proper position onto the bone below it.
8
Tegretol (Carbamazepine) is used to treat episodes of mania (frenzied, abnormally excited
or irritated mood) or mixed episodes (symptoms of mania and depression that happen at the
same time) in patients with bipolar I disorder. Carbamazepine is in a class of medications
called anticonvulsants. It works by reducing abnormal electrical activity in the brain.
12
diminution in her ability to stand or walk. Dr. Jeffries noted that plaintiff had not undergone
any surgery, injections, for formal physical therapy. Upon examination he observed that
plaintiff’s gait was normal; she was able to heel walk, toe walk, and perform a single leg stand
without significant difficulty. She had full range of motion in her cervical spine. Examination
of plaintiff’s lumbar spine showed normal contour and a moderately diminished range of
motion. Spurling’s and Lhermitte’s signs9 were negative. X-rays showed L5 spondylosis with
Grade I spondylolisthesis. Dr. Jeffries diagnosed mechanical neck pain with cervicogenic
headaches and spondylolisthesis at L5-S1 and recommended a home exercise program.
On March 7, 2008, plaintiff saw Dr. Burton and reported that Tegretol made her sick to
her stomach and sedated (Tr. at 399). She reported that her sister was getting evicted and her
husband recently got his third DWI. “He is at her house so he can take her to work.10 If he
goes to jail she loses everything.” Dr. Burton noted that plaintiff’s mood was anxious. She
reported sleeping a lot, she said her energy was a little below normal, and her concentration
was poor. Dr. Burton filled plaintiff’s prescriptions for Depakote, Xanax, Wellbutrin, Vistaril,11
Zantac, and Bentyl.
On March 27, 2008, plaintiff called Burrell and reported that she had an increase in
depressive symptoms on Wellbutrin XL so Dr. Burton authorized a prescription for Wellbutrin
SR 200 mg (Tr. at 399).
9
Spurling’s test is used in helping to confirm a diagnosis of cervical radiculopathy.
Lhermitte’s sign is a sudden, electric-like shock spreading down the body when the patient
flexes the head forward, seen in multiple sclerosis and in disorders of the cervical cord.
10
This was more than a year after plaintiff’s alleged onset date. She reported no earnings in
2008.
11
Vistaril is used to relieve the itching caused by allergies and to control the nausea and
vomiting caused by various conditions, including motion sickness. It is also used for anxiety
and to treat the symptoms of alcohol withdrawal.
13
On April 17, 2008 plaintiff saw Grace Dymek, M.D., for a well-woman exam (Tr. at
304-305). She completed a form in which she reported that the only chronic health problem
she had was heart disease and a murmur; that she had no recent hospitalizations; and that she
took a number of medications, including Xanax, Wellbutrin, Depakote, Cephalexin, Macrobid,
Claritin, and Bentyl.
On May 9, 2008, plaintiff saw Dr. Burton for a follow up (Tr. at 397). She reported
that she felt better for a while with the increased dose of Wellbutrin. Her energy was fair and
her appetite increased, but her concentration was not great.
On June 3, 2008, plaintiff went to the emergency room at Carroll County Memorial
Hospital reporting anxiety and nausea (Tr. at 365-366). Marvin Ross, D.O., examined plaintiff
and noted she was on multiple medications including Wellbutrin, Xanax, Vistaril, Depakote,
Phenergan,12 Bentyl13 and Prevacid.14 Plaintiff stated that she had not eaten anything and was
unable to throw up. Dr. Ross examined plaintiff and found that she was alert, oriented, and
answered questions appropriately. Her ears, eyes, nose, and throat were “totally within normal
limits.” Plaintiff was given IV hydration and medication for nausea and pain. Less than two
hours after she had arrived, plaintiff denied any ongoing pain or anxiety and left the hospital.
12
Phenergan is used to relieve the symptoms of allergic reactions such as allergic rhinitis
(runny nose and watery eyes caused by allergy to pollen, mold or dust), allergic conjunctivitis
(red, watery eyes caused by allergies), allergic skin reactions, and allergic reactions to blood or
plasma products. Phenergan is used with other medications to treat anaphylaxis (sudden,
severe allergic reactions) and the symptoms of the common cold such as sneezing, cough, and
runny nose. Phenergan is also used to relax and sedate patients before and after surgery,
during labor, and at other times. Phenergan is also used to prevent and control nausea and
vomiting that may occur after surgery, and with other medications to help relieve pain after
surgery. Phenergan is also used to prevent and treat motion sickness.
13
Treats irritable bowel syndrome.
14
Reduces stomach acid.
14
Dr. Ross noted that plaintiff “should do well” and told her to follow up with Dr. Dymek the
following day.
On June 5, 2008, plaintiff reported to Dr. Dymek’s office to follow up on her ER visit
(Tr. at 298). Dr. Dymek increased her Xanax to 1 mg.
On June 27, 2008, plaintiff saw Dr. Burton and claimed she lost everything in a flood
two days earlier and did not know when she could return to her home (Tr. at 396). She
reported a lot of panic attacks and hyperventilating, great energy but poor concentration. Dr.
Burton diagnosed bipolar disorder, hypomania (see footnote 6 on page 8), and panic disorder.
She increased plaintiff’s dosage of Depoke and prescribed Wellbutrin and Xanax.
On August 7, 2008, plaintiff reported to the ER at Carroll County Memorial Hospital
reporting an anxiety attack and an inability to swallow her Xanax (Tr. at 362-363). Dr.
Dymek examined her and noted that her vital signs were stable but she was hyperventilating.
Dr. Dymek assessed her with an overwhelming anxiety attack and gave her 2 mg of Ativan.15
Plaintiff had arrived at 8:29 p.m., by 9:20 she denied anxiety, and at 9:22 she left the ER with a
friend.
On September 29, 2008, plaintiff returned to the ER at Carroll County Memorial
Hospital reporting anxiety and confusion (Tr. at 360-361). She stated that she had been
having nausea and vomiting for three days along with dysphagia16 and anxiety attacks.
Plaintiff said she feels foggy and slow when people talk to her. She also reported tingling over
her whole body and shaky hands. Plaintiff said she “had a lot of problems going on with her
15
Ativan (Lorazepam) is used to relieve anxiety. Lorazepam is in a class of medications
called benzodiazepines. It works by slowing activity in the brain to allow for relaxation.
16
Dysphasia is a partial or complete impairment of the ability to communicate resulting
from brain injury.
15
family at this time and just slowly began to have difficulty and just couldn’t get it under control
with her normal medication she takes on a regular basis, so she came into the emergency
room.” Dr. Ross examined her and noted that she “appears to be having a severe anxiety
attack.” Dr. Ross gave her 1 mg of Ativan for her anxiety and some Compazine for nausea.
On October 14, October 24, November 25, and December 9, 2008, plaintiff saw Dr.
Dymek for a flu shot and complaints of a sore throat, congestion and constipation (Tr. at 288289, 291-293). The treatment records do not reference any issues with panic, anxiety,
confusion, or inability to swallow. During the December 9 visit, plaintiff said that she had
fallen on the bathroom floor. Dr. Dymek diagnosed her with panic attacks, abdominal
bloating and gastro-esophageal reflux disease (“GERD”).
On December 22, 2008, plaintiff was seen by Melissa Hutchens, M.D., a resident
psychiatrist who worked with Dr. Burton at Burrell (Tr. at 395). She reported extreme anxiety
and inability to sleep. Plaintiff had stopped taking Lamictal due to nausea and vomiting. She
stated that she recently had memories of her sister being abused and she had a lot of guilt over
that. She also stated that she had “lots of memory gaps from 3-7.” Dr. Hutchens thought
plaintiff might have been destabilized by steroid medications prescribed for sinusitis and
expected improvement as the dosage tapered. She added Seroquel17 to plaintiff’s medications
and told her to return in a month.
On January 11, 2009, plaintiff returned to the ER at Carroll County Memorial Hospital
stating that she was having an anxiety attack and was vomiting (Tr. at 355-356). Dr. Ross
found that plaintiff’s physical signs were normal and she did not appear to be in any acute
17
Treats the symptoms of schizophrenia (a mental illness that causes disturbed or unusual
thinking, loss of interest in life, and strong or inappropriate emotions).
16
distress. He treated her with IV hydration as well as 4 mg of Zofran for nausea and 1 mg of
Ativan.
On January 12, 2009, plaintiff called Burrell and reported that she was in the ER the
night before for “ENT problems,” trouble swallowing, nausea, and vomiting (Tr. at 394). She
stated that she was now having panic attacks because of her inability to swallow. Seroquel,
prescribed the night before, was only helping her a little. Dr. Hutchens told plaintiff she could
use up to 5 mg of Xanax in a 24-hour period.
On February 9, 2009, plaintiff called Burrell to cancel her appointment with Dr.
Hutchens (Tr. at 393). This was the second cancellation in a row. Plaintiff reported that she
had refills of all her medications available.
The following day, February 10, 2009, plaintiff went to the hospital reporting an
episode of fainting accompanied by radiating chest pain (Tr. at 350). A chest x-ray was
normal (Tr. at 353). The day after, plaintiff saw George Pogson, III, M.D., in the cardiology
clinic at CCMH (Tr. t 351). Aside from slightly elevated blood pressure, a physical
examination was normal. Dr. Pogson found that coronary disease seemed “rather unlikely” but
ordered a stress test and echocardiogram to be sure. Both were normal (Tr. at 346-348, 351).
On March 23, 2009, plaintiff saw Dr. Hutchens and reported that she was “not doing
too great” (Tr. at 392). Plaintiff reported extreme anxiety and said she had a recent episode
she thought was a heart attack. “Denies any prior anxiety symptoms.” She said her “ex had to
move in so her BF [boyfriend] moved out.” Plaintiff’s husband had alcohol issues and was
pushing to get back together. Plaintiff said she felt she had no control. Plaintiff said she was
only using Seroquel (treats schizophrenia) twice a week for sleep and was using Vistaril (treats
nausea, anxiety and itching) regularly. Dr. Hutchens diagnosed bipolar disorder, panic
17
disorder, and depression and adjusted plaintiff’s medications, prescribing Cymbalta to replace
Wellbutrin.
On April 27, 2009, plaintiff was seen at Burrell and told Dr. Burton that Cymbalta was
working really well and was helping to stop her depression and lessen her anxiety (Tr. at 391).
She reported recent mania, a racing mind, little sleep, and increased stress due to a meeting the
next morning with the disability lawyers. Dr. Hutchens told plaintiff she could take additional
Depakote and Seroquel for a few days if needed, and then return to the previous dosage as her
stress subsided.
On June 8, 2009, plaintiff returned to Burrell and reported to Dr. Burton that she was
using videos and cards/skills to handle panic and anxiety (Tr. at 390). She said she had
reduced her use of anti-anxiety medication, had a few “major episodes” with moving her
boyfriend in and husband out, but no visits to the hospital, and she had improved her diet and
was exercising regularly. Dr. Hutchens noted that plaintiff was euthymic (a relatively stable
mood state), active, and doing better with skills. She instructed plaintiff to return in two to
three months.
On September 22, 2009, plaintiff saw Jane Rued, Ph.D., at the request of Disability
Determinations (Tr. at 413-420).
Mrs. Constant is a 29 year old, married female who is currently separated from
her husband. She reports having four children aged 4, 6, 9, and 11. She had a photo
ID, a Missouri Driver’s license.
Mrs. Constant reports having a GED. She said she attended school through
eleventh grade, leaving when she was pregnant with her first child. She said she had
no special education services. In work history, she said she has mostly worked at a
restaurant in Carrollton, 10 to 12 years off and on. She explained that they are family
friends so that she and her sister work there on and off. She said she also worked in
housekeeping at Super 8, leaving employment there in about 2002. She said she left
because she was having too much trouble working there with her back and with her
anxiety. She said she also worked at Hallmark two different times, the last time she left
there was probably around 2006. She said she left because of her anxiety, not being
18
able to stay there the whole day. She said that also the work setting put a lot of strain on
her back. She said that after Hallmark she returned to work at the restaurant where she
had worked before, the Burger Bar. She said that she worked there as long as she could
but at that time her stomach was in way worse condition than it is now. She said that
her doctor explained that smelling the food made acid production increase in her
stomach, causing her problems. She said [she] left there about three years ago, probably
in 2007. She said that was her last employment.
Mrs. Constant said she has been hospitalized twice with anxiety attacks, having
been picked up by the ambulance from her home. She said additionally, she has gone
to the Emergency Room four to six times on her own for anxiety. She said she had her
gall bladder removed last year but that is now an outpatient procedure. She said Dr.
Grace Dymek is her family doctor. She said Dr. Dymek has diagnosed her with IBS
[irritable bowel syndrome], ulcers, and chronic sinusitis. She said also sees a specialist
for her sinuses but does not recall that doctor’s name. She said that Dr. Albert Shaw, a
psychiatrist, sees her over a television connection at Burrell Health Services in
Carrollton. She said it is called Tele Net and he is actually located in Columbia. She said
that Dr. Shaw’s diagnosis for her is bipolar, anxiety disorder, phobia disorder, and
obsessive compulsive disorder. She said she has seen a counselor, Christy Duren, also
through Burrell for the past eight to nine months. She said she had a different counselor
before and they kind of switch out. She said the counselors don’t give her diagnosis,
going with what the doctor has said. She said she sees her therapist once a week and
Dr. Shaw every other month. She added degenerative disc disease to the diagnosis given
to her by Dr. Dymek. Medications which she reports taking and brought with her are
as follows: Cymbalta 30 mg., Alprazolam 1 mg. 5 x, Vistaril 25 mg qid [four times a
day] prn [as needed], Seroquel 300 mg 1 or 2 hs [at bedtime], Lithium 300 mg 2 hs,
Prevacid 30 mg., Flexeril 10 mg prn, Alavert D -12 hr.
Mrs. Constant came to the evaluation attractively groomed and dressed with
piercings evident by earrings and at her right eyebrow. She was able to express her
thoughts adequately through speech with affect appropriate to thought, and had a
pleasant, cooperative manner. Short term auditory memory was low within the average
range as she was capable of recalling a number of five digits in length. She completed
the first five subtractions of serial sevens within 28 seconds with one error in
computation, and completed the entire series within 120 seconds with an additional
error. Abstract thought, as suggested by her capacity to explain the meaning of three
proverbs, appeared marginal. She was able to explain the point of two of the three
offered.
Clinic notes from the University of Missouri Healthcare are available for visits
between the dates of l-18-2008 and 12-15-2008. On 1-18-2008 Joel T. Jeffries, M.D.,
of the Orthopedic Clinic gave the impression of: 1. Mechanical neck pain, with
cervicogenic headaches, 2. Spondylolytic, Spondylolisthesis L5, S1. He indicated that he
had started her on a home exercise program to do twice a day and if she continues to
have significant complaints of low back pain, they would consider a magnetic
resonance imaging of her lumbar spine. He noted that her past medical history
included depression, tobacco abuse, gastric reflux, anemia, migraines, ulcers, anxiety,
19
panic disorder and bipolar disorder. Also on 1-18-2008 Minh-Tri Dang, M.D., wrote a
report of the lumbosacral spine series with history of L5-S1 degenerative changes. The
impression was of L5 spondylosis, with a grade 1 spondylolisthesis.
*****
On 12-23-2008 David Chang, M.D., of the Otolaryngology Clinic wrote a clinic
note. The impression was of chronic sinusitis. In addendum, it was noted that ICAP was
positive for dust mites (both types). He counseled the patient to stay on nasal steroid. It
was noted that the patient was now on Seroquel by psychiatrist to counteract auditory
hallucinations contributed by the prednisone. On February 5, 2007 Angela Lukebeart
Guest, QMHP, wrote a report of an assessment which was also signed by a physician G.
Burton on 3-16-07. It was noted that around the first of January, 2007, the client could
not sleep, and she heard radio, radio announcer and there was no radio playing. One
time occurrence. Client stated that she was exhausted and really depressed. The DSMIV code given was: Axis I: 300.01 Panic D/O, 300.3 OCD [obsessive compulsive
disorder], 296.8 Bipolar NOS, Axis II: None, Axis III: Stomach Ulcer, Heart Murmur No Problems, on Axis IV the problems were various areas was graded on 1, 2, or 3 for
each area, Axis V gave a GAF of 51. The consensus was that the client’s anxiety, panic,
and stress cause difficulty in functioning. The client has decreased work to three days
per week b/c [because] of this. Client also has germ phobia. Several weeks of increased
of mood and then several of decreased mood. It was recommended that she obtain
CPRC-R services to learn coping skills and stress reduction. Recommended program for
following: Go to LPN School, Saline Co Vo Tech, Marshall, get anxiety under control C5, cope with germ phobia, reduce stress to help reduce stomach nausea/pain.
An Individual Treatment and Rehabilitation Plan was written on February 26,
2007 by Angela Lukeheart Guest. The diagnosis given was: Axis I: Panic D/O 300.01,
OCD 300.3, Bipolar NOS [not otherwise specified] 296.8, Axis II: None, Axis III:
Stomach Ulcer, Heart Murmur, Axis IV: Stressors: Economic, Social, Job, Axis V: GAF
51. Agencies providing service included DFS for food stamps and children, Medicaid,
and Burrell Behavioral Health by Angela Guest for CPRC, beginning 2-07. Progress
notes, indicative of regular treatment, are available between the dates of 8-3-2007 and
6-8-2009 from Burrell Behavioral Health Central Region. The assessment on 8-3-2007
was Bipolar -Type 1- Euthymic to mildly depressed, GERD, GI distress, try (?). The
diagnosis given on 6-8-2009 was: 1. Bipolar D/O I, Euthymic, Panic D/O, 3. IBS, DJD
[degenerative joint disease] back pain. It was recommended that she continue the meds
as is including Cymbalta 60, Xanax 1 mg., Depakote ER, 1000, Seroquel 50, Vistaril 25
prn [as needed].
Asked to describe her current mood, Mrs. Constant said that it is very volatile
because her bipolar diagnosis indicates her being either manic or depressed, and she is
rapid cycling. She said lately, in the daytime she’s been very happy and smiling, and in
the evening she has been depressed and crying, irritable. She said a couple of days ago
they did a medicine change and she was not certain if that would affect this pattern.
She said she gets about four or five hours of sleep a night She said that she hears radio
hallucinations which disturb her sleep, with the impression of stereo. She said the radio
is usually an old time program and she will hear an announcer and the first part of a
20
song until they get to the verse, then she will get up and check on the kids and look for
a radio. She said when she first heard it, she was freaking out, but now that she knows
what it is, it’s a little bit easier. She said she has been hearing that for well over a year,
probably a year and a half, and it is not a constant thing, appearing to depend on how
hard a day she had. In regard to her eating, she said she usually has one full meal a day.
She said before she started this rapid cycling she was eating pretty normal but now,
with rapid cycling and anxiety, she does not. She said she has anxiety attacks with
sweating, nausea She eats best in the evening when she takes her medication as she is
supposed to eat with it. She denied suicidal ideation but says she does cry at times. She
said she has euphoric moods with grandiosity and the ability to go for days without
sleep. She said she experiences racing thoughts. She said she does have mood swings,
more frequently recently. She wondered if it might be due to the stress of working out a
divorce with her husband from whom she has been separated for three years. She
acknowledged having panic attacks, saying usually she will start with a panic attack
and it will turn into full blown anxiety. She said she doesn’t know what she feels
anxious about but her heart will start to race, her breathing gets fast and she will
usually have to go outside. However, she says she has a program which she bought on
CDs from a TV ad which she has been using and she has not had to go the emergency
room since doing so. She said she can convince herself that she is not going to die or
have a heart attack and usually can keep herself at home. She said the panic and
anxiety usually occurs a couple of times a week. She said she does . . . feel able to go
places as long as she doesn’t have panic or anxiety. She said she still does not drive due
to concern that she may have a panic attack when doing so. She said that other than
that, she can go to the kids’ events and activities, to the store and to the bank. Asked
about her report of having a phobia, she said that she has severe fear of snakes,
vomiting, germs, and hospitals. She said if someone is sick she won’t go around them
unless it is her child. She said also, she doesn’t touch faucets or door knobs unless she
has to using a paper towel. She said she provides hand sanitizer for the children. She
described her family history as including schizophrenia, bipolar disorder, and anxiety
disorder, particularly on her father’s side.
Mrs. Constant said that she and her sister have both been sexually abused, with
her sister actually raped and herself being molested. She said the perpetrator was an
uncle and she was seven years old when this occurred. She said she has flashbacks of
this. Asked if there were things she avoided due to those events, she said she avoided
family on that side of the family.
Mrs. Constant said that she does not drink at all. She said that years ago, she
went off and on with her sister to the bar in town but doesn’t do so any longer. She said
that if she drinks, her ulcers act up real bad. She denied street drug usage but said
probably when she was 15 years old or so she smoked pot off and on. She said she has
no experience with legal problems.
Mrs. Constant says she has a driver’s license. She believes herself capable of
caring for her personal needs. She said she has a checkbook and thinks she is able to
manage her funds. She said that her four children live with her. She said she is able to
keep up the house and her children are very helpful in that regard. She said they take
21
care of their own rooms and what they get out, they pick up. She said her sister lives
nearby and when she’s having a rough time, her sister will come over and they will
have dinner together or vice or versa. She said she will go over to her sister’s when she
is having a rough time and they are each other’s support.
Describing a typical day, Mrs. Constant said that on a normal day, they are up at
around six o’clock as the bus comes at seven. She said the kids get ready [for] school,
usually having cereal before they leave. She said that her son’s preschool only lasts until
10:30 and the bus brings him back. She said then they will have lunch, take their
showers and such and at 3:30 the other kids come borne. She said the kids do their
homework and dinner is at 6:00. She said she puts the children to bed at around 8:00.
She said that for fun, she will take the kids and go anywhere. She said they do camping
and such in the summertime, usually at Van Meter’s State Park. She said also, the kids
participate in sports. She said she will usually sit out and read a book, watching them
play on their trampoline. She says she reads a lot and writes a lot, and may play catch
with the kids.
On the Minnesota Multi-Phasic Personality Inventory -II (MMPI-II), Mrs.
Constant had a validity constellation of a caret with an elevated F scale at TSO,
indicating that she did not appear to defensively deny having human faults and
weaknesses and was willing to indicate her shortcomings. It was a strong “fake bad”
response set of exaggeration and distortion of problems, limiting the validity of the test
findings. Such a profile may be found in an individual who is a malingerer or also with
one who is trying to a raise a red flag of their need for help. There was an elevation of
the neurotic triad which is a profile of an individual like[ly] to perceive themselves [sic]
as physically ill. They may represent the displacement of psychic conflicts into the
somatic domain. The profile was also consistent with an individual with obsessive
compulsive thoughts, with anxiety as well as ruminative and ambivalent thinking.
Excessive endorsement of negative characteristics leads to potential for multiple
possible diagnoses including fictious disorder18 with physical symptoms, brief psychotic
disorder, schizophrenia, major depression with psychotic features, and bipolar affective
disorder II.
During evaluation, Mrs. Constant demonstrated the ability to understand and
remember instructions and to sustain concentration and persistence in short tasks. She
appears capable of interacting socially and in that way adapting to her environment.
However, she reports a history of withdrawing from a work setting due to anxiety at
times and also to physical problems with her back at other times. Her reported history
and description of current functioning is consistent with bipolar disorder. While she
reports panic attacks, she states that she does feel able to go places.
Diagnostic impression is: Axis I: 296.7 Bipolar Disorder, 300.21 Panic Disorder
without Agoraphobia, Axis II: V71.09 No Diagnosis, Axis III: Stomach Ulcer, Heart
18
I have been unable to find any definition for a “fictious disorder.”
22
Murmur, Sinusitis, IBS, Degenerative Disc Disease, Axis IV: Occupational Problems,
Financial Problems, Axis V: 51.
Dr. Rued found that plaintiff has mild limitation in her ability to interact appropriately
with the public and moderate difficulty interacting appropriately with supervisors and coworkers (Tr. at 419). She was moderately limited in her ability to respond appropriately to
usual work situations and to changes in a routine work setting.
Plaintiff submitted additional evidence to the Appeals Council only (Tr. at 5, 425-430).
On September 2, 2010, more than a year after the administrative hearing, Dr. Burton
completed a Mental Medical Source Statement in which she stated that she had seen plaintiff
approximately every two to three months for three years (Tr. at 425). She diagnosed bipolar
disorder and panic disorder, treated with mood stabilizers, antidepressants and anti-panic
medications; and assigned a current GAF of 45,19 noting that plaintiff’s highest GAF in the past
year was 55. She checked boxes on the form to indicate that plaintiff had appetite disturbance,
sleep disturbance, mood disturbance, emotional lability, recurrent panic attacks, psychomotor
agitation or retardation, social withdrawal or isolation, decreased energy, manic syndrome,
feelings of worthlessness, and difficulty thinking or concentrating. Dr. Burton found that
plaintiff’s mental abilities and aptitude to do unskilled work were fair, and on average her
impairments would cause her to be absent from work about once a month.
C.
SUMMARY OF TESTIMONY
During the July 23, 2009, hearing, plaintiff testified; and Denise Waddell, a vocational
expert, testified at the request of the ALJ. At the conclusion of the hearing, the ALJ ordered the
psychological evaluation that was done by Dr. Rued (Tr. at 49).
19
A global assessment of functioning of 41 to 50 means serious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to keep a job).
23
1.
Plaintiff’s testimony.
At the time of the hearing, plaintiff was 29 years of age, married but separated and had
four children, ages 11, 10, 7 and 4 (Tr. at 29). The children live with plaintiff (Tr. at 29).
Plaintiff left high school in 11th grade but shortly thereafter earned a GED (Tr. at 30). Plaintiff
has a driver’s license and drives “most of the time” (Tr. at 30).
Plaintiff and her husband have been separated for two and a half years (Tr. at 42).
They remain good friends, and he helps her out and helps with the children (Tr. at 42).
Plaintiff’s alleged onset date is February 8, 2007, which is the date she “finally
completely stopped working at all” due to anxiety (Tr. at 30). Plaintiff previously worked in
housekeeping at a Super 8, she worked at The Burger Bar, and she had other short-term jobs
(Tr. at 30-31). Plaintiff’s highest earnings year was 2006 when she made approximately
$5,100 (Tr. at 31). Plaintiff has never held a job more than 30 days except the Burger Bar, and
she has worked there off and on since she was 15 (Tr. at 31-32). The people who own it are
family friends and keep letting her and her sister come back to work (Tr. at 32).
Plaintiff was taking Vistaril, Xanax, Cymbalta, Depakote, Seroquel, Prevacid, Bentyl,
and Flexeril (Tr. at 32). Her medications help with the anxiety, but “not enough” (Tr. at 37).
Her medications make her drowsy and nauseous, they give her headaches and cause her to be
confused and to stutter (Tr. at 32). Plaintiff has panic attacks caused by nothing, or it could be
going grocery shopping, going into public, going into an unsanitary area (Tr. at 32). Plaintiff
sees a doctor once every month or two for medication management; she sees a counselor every
week (Tr. at 32). The counseling has helped with the bipolar disorder but not with the anxiety
(Tr. at 33). Plaintiff went to the hospital four times in 2008 for anxiety, but she cannot
identify anything in 2008 that made her anxiety worse (Tr. at 33).
24
On a typical day, plaintiff wakes up at 6:30, gets the three older kids ready for school
and on the bus (although they eat breakfast at school), then she and her youngest son pick up
things around the house, watch television, or go visit with her sister until the kids come home
from school (Tr. at 34). Plaintiff’s oldest son has ADHD and bipolar disorder20 so she has her
“hands full” trying to help him with homework and getting “stuff done” until her kids go to
bed around 8:00 (Tr. at 34). Plaintiff goes to bed around 11:00 p.m., but she only sleeps four
or five hours a night (Tr. at 34).
On a normal day, plaintiff does the grocery shopping (Tr. at 34). If she is having
anxiety, she sends her 11-year-old and her 10-year-old into the store to buy items for her (Tr.
at 34). If she is in the store and has anxiety, she either leaves (if she is alone) or has her
children finish the shopping for her (Tr. at 34).
Plaintiff’s anxiety attacks begin with racing heart and chest pain, and she has a tingling
in her spine (Tr. at 35). Her hands sweat, she gets nauseous to the point of vomiting, she feels
doom and has a need to go outdoors (Tr. at 35). The anxiety attacks last a couple hours to a
couple days (Tr. at 35, 37). If plaintiff’s chest pain is bad or if she cannot stop the nausea and
vomiting, then she goes to the hospital (Tr. at 35-36). When she has a panic attack she has to
be told what to do and her blood pressure gets out of control (Tr. at 38). After a panic attack,
plaintiff feels sluggish and tired and has to lie down because it is mentally exhausting (Tr. at
37). Plaintiff has suffered from panic attacks since she was 17 years old (Tr. at 36). Her most
recent one was the week of the administrative hearing (Tr. at 42). It was a bad one, and she
probably should have gone to the hospital because her face was numb and her fingers and legs
20
According to plaintiff’s motion to proceed in forma pauperis, she receives $560 per month
from Social Security for her son.
25
were tingling (Tr. at 42). During a bad period of anxiety, plaintiff will get up and do the kids’
laundry and feed them and try to help them with homework while she is in bed (Tr. at 43).
Plaintiff’s employment has suffered due to anxiety because she has to call in on days
when her anxiety is bad, or she has to leave work when she has a panic attack (Tr. at 36). The
Burger Bar is “one of the busiest restaurants [in Carrollton] and you can’t just walk out during
those times. They don’t have anybody to cover you.” (Tr. at 36).
Despite her testimony about shopping alone or with her children, plaintiff later testified
that she does not drive alone at all, “usually, without another adult with me” because she does
not know when she will have an anxiety attack (Tr. at 36). She never drives more than 30
miles (Tr. at 36). In order to get to the hearing, plaintiff and her estranged husband drove
together, with her driving part of the way and him driving the other part (Tr. at 37).
Plaintiff has also been diagnosed with bipolar disorder (Tr. at 39). When she is in a
manic phase, it makes her anxiety much worse (Tr. at 39). The mania is mostly during the
summer, maybe once or twice a month, and lasts three or four days (Tr. at 39). When plaintiff
is having a manic episode or anxiety attack, she gets help with her children from her sister, her
parents, or her husband (Tr. at 40). Despite her anxiety, she is able to get her three oldest kids
off to school “because it has to be done” and then she and her youngest son can lie down and
relax and she gets him breakfast while he watches television (Tr. at 40-41). Plaintiff has read
a lot of books on anxiety and that has taught her how to focus so she can do “necessary things”
(Tr. at 41).
Plaintiff goes through periods of depression in the winter (Tr. at 41). She has crying
episodes when she is not doing a lot, and her head thinks she is tired when she really is not (Tr.
at 41). She has a depressive episode once a week in the winter which lasts sometimes up to a
day (Tr. at 41).
26
Plaintiff’s children have chores in their bedrooms (Tr. at 42). If plaintiff is “down for a
couple days” her sister will come and help her (Tr. at 42). Plaintiff does the same thing for her
sister when her sister is sick (Tr. at 42).
Plaintiff has a phobia about germs (Tr. at 43). She repeatedly cleans her bathroom and
she will not touch tables and chairs (Tr. at 43). In public places she uses a paper towel to open
bathroom doors (Tr. at 44). When she worked at the Burger Bar, she did not like to touch the
trays because she knew people had handled them (Tr. at 44).
Plaintiff’s anxiety causes her to have ulcers and irritable bowel syndrome (Tr. at 44).
She may be OK one day but the next day she will have to worry about diarrhea all day (Tr. at
45).
2.
Vocational expert testimony.
Vocational expert Denise Waddell testified at the request of the Administrative Law
Judge.
The first hypothetical involved a person who could sit, stand or walk six hours each;
could lift ten pounds frequently and twenty pounds occasionally; should never climb ladders,
ropes or scaffolds or be exposed to vibration, dangerous machinery or unprotected heights; can
occasionally climb stairs or tramps and stoop. The person should never be expected to
understand, remember, or carry out detailed instructions; job duties should be simple,
repetitive, and routine in nature; can occasionally have contact with supervisors and coworkers but should never have any job duties requiring public contact, although incidental
contact is acceptable (Tr. at 47-48). The vocational expert testified that such a person could
work as a collator operator, DOT 208.685-010, with 1,100 in Missouri and 36,000 in the
country; an inserting machine operator, DOT 208,685-018, with 1,300 in Missouri and
27
43,000 in the nation; or an electrical assembler, DOT 729.684-054, with 2,400 in Missouri
and 55,000 in the country (Tr. at 48).
The second hypothetical was the same as the first except the person would miss two or
three days of work per month (Tr. at 48). The vocational expert testified that such a person
could not work (Tr. at 48).
V.
FINDINGS OF THE ALJ
Administrative Law Judge Christine Cooke entered her opinion on January 29, 2010
(Tr. at 11-18). She found that plaintiff meets the insured status requirements of the Social
Security Act through June 30, 2007 (Tr. at 13).
Step one. Plaintiff has not engaged in substantial gainful activity since her alleged onset
date (Tr. at 13).
Step two. Plaintiff suffers from degenerative disc disease, bipolar disorder, and anxiety
disorder, which are severe impairments (Tr. at 13).
Step three. Plaintiff’s impairments do not meet or equal a listed impairment (Tr. at 14).
Step four. Plaintiff retains the residual functional capacity to sit, stand, or walk for six
hours each. She can lift ten pounds frequently and 20 pounds occasionally. She should never
climb ladders, ropes, or scaffolds, but she can occasionally climb stairs or ramps and can
occasionally stoop. She should never be exposed to vibration and should never be exposed to
hazards such as dangerous machinery or unprotected heights. Plaintiff should never be
expected to understand, remember, or carry out detailed instructions. Her job duties should be
simple, repetitive, and routine in nature. She should never have job duties which require
public contact, although incidental contact would be acceptable. She can have up to occasional
contact with supervisors and with co-workers (Tr. at 15). Plaintiff has no past relevant work
(Tr. at 17).
28
Step five. Plaintiff was 26 years old at the time of her alleged onset date, she has at least
a high school education, and can make an adjustment to work available in significant numbers
in the economy, such as collator operator, with 1,100 jobs in Missouri and 36,000 in the
nation, or inserting machine operator, with 1,300 jobs in Missouri and 43,000 in the nation,
or electrical assembler, with 2,400 jobs in Missouri and 55,000 in the nation (Tr. at 17-18).
Therefore plaintiff was found not disabled at step five of the sequential analysis (Tr. at 18).
VI.
NEW EVIDENCE BEFORE APPEALS COUNCIL
Plaintiff argues that the Appeals Council erred by failing to consider the Medical Source
Statement provided by plaintiff’s treating psychiatrist, Dr. Glenna Burton on September 2,
2010.
“If new and material evidence is submitted, the Appeals Council shall consider the
additional evidence only where it relates to the period on or before the date of the
administrative law judge hearing decision.” 20 C.F.R. § 404.970(b). Further, “[t]he Appeals
Council shall evaluate the entire record including the new and material evidence submitted if
it relates to the period on or before the date of the administrative law judge hearing decision.”
Id.
“In cases involving the submission of supplemental evidence subsequent to the ALJ’s
decision, the record includes that evidence submitted after the hearing and considered by the
Appeals Council.” Bergmann v. Apfel, 207 F.3d 1065, 1068 (8th Cir. 2000)(citing Jenkins v.
Apfel, 196 F.3d 922, 924 (8th Cir.1999)(citing Riley v. Shalala, 18 F.3d 619, 622 (8th
Cir.1994)). In these situations it is the role of the court “to determine whether the ALJ’s
decision ‘is supported by substantial evidence on the record as whole, including the new
evidence submitted after the determination was made.’” Id. (quoting Riley v. Shalala, 18 F.3d at
29
622). The district court is required to “decide how the ALJ would have weighed the new
evidence had it existed at the initial hearing.” Id.
“The Appeals Council must consider evidence submitted with a request for review if it
is ‘(a) new, (b) material, and (c) relates to the period on or before the date of the ALJ’s
decision.” Id. (emphasis in original)(quoting Box v. Shalala, 52 F.3d 168, 171 (8th Cir.
1995)(quoting Williams v. Sullivan, 905 F.2d 214, 216-17 (8th Cir. 1990)). The issue of
whether additional evidence meets these criteria is a question of law and is reviewed de novo.
Id. The Eighth Circuit has interpreted “the Appeals Council’s statement that the additional
evidence did not provide a basis for changing the ALJ’s decision as a finding that [the
additional evidence is] not material.”21 Aulston v. Astrue, 277 Fed. Appx. 663, 664 (8th Cir.
2008)(citing Bergmann v. Apfel, 207 F.3d 1065, 1069-1070 (8th Cir. 2000)).
In Bergmann, the claimant submitted additional evidence to the Appeals Council
consisting of letters from her treating psychiatrist “discussing her mental condition and
opining that she would be disabled for twelve months or longer and likely could not maintain
gainful employment for the next two years.” Bergmann v. Apfel, 207 F.3d at 1067. The
Appeals Council denied the request for review stating that it considered the additional
evidence, but failed to expound upon that statement. Id. It concluded that “neither the
contentions nor the additional evidence provides [sic] a basis for changing the Administrative
Law Judge’s decision.” Id.
21
I note that in plaintiff’s brief, she accurately states the law on this point; however, in her
argument section, she states that the court would interpret such a statement as not considering
the statement at all, which is completely different. See plaintiff’s brief at page 20: “However,
as in Aulston, the Appeals Council merely stated that the new ‘information does not provide a
basis for changing the [ALJ’s] decision.’ (Tr. 2); Aulston, 277 Fed. Appx. at 664. The Eighth
Circuit interprets this statement to mean that the Appeals Council did not consider the
additional evidence. Id.” (emphasis added).
30
The Medical Source Statement provided by Dr. Burton is dated September 2, 2010 -the ALJ’s decision was rendered on January 29, 2010. Dr. Burton states that she has been
seeing defendant for the past three years approximately every two to three months. She
provided her diagnosis of bipolar disorder and panic disorder, both of which were diagnosed
in the records before the ALJ. The “new” part of this Medical Source Statement is an indication
that her current GAF is 45 whereas in all of the medical records prior to the ALJ’s decision
plaintiff’s GAF was in the 50s or 60s. However, this is not something the Appeals Council
could consider because it is at most evidence of post-decision deterioration of a pre-existing
condition, which the Appeals Council is not to consider. The remainder of the Medical Source
Statement is merely cumulative to the medical records that were before the ALJ with the
exception of the opinion that plaintiff may be absent from work about one day per month due
to her condition or treatment. However, when taken in context with the rest of the record, it
does not amount to new and material evidence.
Dr. Burton found that plaintiff has a “fair” ability to perform all 20 features of
unskilled work:
P
The ability to remember locations and work-like procedures
P
The ability to understand and remember very short and simple instructions
P
The ability to understand and remember detailed instructions
P
The ability to carry out very short and simple instructions
P
The ability to carry out detailed instructions
P
The ability to maintain attention and concentration for extended periods
P
The ability to perform activities within a schedule, maintain regular attendance, and be
punctual within customary tolerances
P
The ability to sustain an ordinary routine without special supervision
31
P
The ability to work in coordination with or proximity to others without being distracted
by them
P
The ability to make simple work-related decisions
P
The ability to complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods
P
The ability to interact appropriately with the general public
P
The ability to ask simple questions or request assistance
P
The ability to accept instructions and respond appropriately to criticism from
supervisors
P
The ability to get along with coworkers or peers without distracting them or exhibiting
behavioral extremes
P
The ability to maintain socially appropriate behavior and to adhere to basic standards of
neatness and cleanliness
P
The ability to respond appropriately to changes in the work setting
P
The ability to be aware of normal hazards and take appropriate precautions
P
The ability to travel in unfamiliar places or use public transportation
P
The ability to set realistic goals or make plans independently of others
But more importantly, Dr. Burton stated right on this Medical Source Statement that there have
been no substantive changes to plaintiff’s condition in the past three to four years (Tr. at 430).
The ALJ had all of plaintiff’s mental health records from the past three to four years and was
able to determine from those records that plaintiff’ s mental impairment did not restrict her
from performing substantial gainful activity. This is in accordance with Dr. Burton’s findings
that plaintiff has a fair ability to perform all of the mental tasks of unskilled work, including
interacting appropriately with the general public, co-workers and supervisors (which is less
restrictive than the ALJ’s residual functional capacity assessment) and understanding,
remembering and carrying out detailed instructions (which is less restrictive than the ALJ’s
32
residual functional capacity assessment). The checked box indicating that plaintiff would miss
work about one day a month does not, when considered in context with the rest of the
document, make this document new and material evidence.
VII.
RESIDUAL FUNCTION CAPACITY/FULLY DEVELOPING THE RECORD
Plaintiff argues that the ALJ’s residual functional capacity assessment was deficient
because it was not based on medical evidence regarding plaintiff’s physical limitations and
because the ALJ failed to order additional medical information required to develop the record.
Contrary to plaintiff’s argument, the ALJ properly assessed plaintiff’s residual functional
capacity based on all of the relevant evidence of record and had no duty to further develop the
record.
Social Security Ruling 96-8p requires that, after identifying an individual’s functional
limitations, his work-related abilities must be assessed on a function-by-function basis,
including physical, mental, and other limitations. Harris v. Barnhart, 356 F.3d 926, 929 (8th
Cir. 2004). The residual functional capacity is the most a claimant can do despite the
combined effect of all credible limitations. 20 C.F.R. §§ 404.1545(a)(1) and 416.945(a)(1). It
is a claimant’s burden to prove his residual functional capacity. 20 C.F.R. §§ 404.1545(a)(3),
404.1512(c), 416.912(c), and 416.945(a)(3); Harris v. Barnhart, 356 F.3d 926, 929-30 (8th
Cir. 2004).
The ALJ found that plaintiff retained the residual functional capacity to lift 20 pounds
occasionally and 10 pounds frequently; sit, stand, or walk for six of eight hours; never climb
ladders, ropes, or scaffolds; occasionally climb stairs or ramps; occasionally stoop; and never be
exposed to vibration or hazards such as dangerous machinery or unprotected heights. The ALJ
found that plaintiff’s mental impairments caused mild restrictions in activities of daily living;
moderate difficulties in maintaining social functioning; moderate difficulties in maintaining
33
concentration, persistence, or pace; and no episodes of decompensation. Accordingly, the ALJ
included limitations in the residual functional capacity that plaintiff should never be expected
to understand, remember, or carry out detailed instructions. Her job duties should be simple,
repetitive, and routine, and not require public contact, although incidental contact with the
public and occasional contact with supervisors and coworkers would be acceptable.
Plaintiff argues that the residual functional capacity must include a “a narrative
discussion” explaining how the evidence supports each conclusion, citing specific medial facts
and non-medical evidence. SSR 96-8p does not require the ALJ to state each relevant residual
functional capacity finding immediately followed or preceded by a redundant discussion of the
evidence supporting that finding. The ALJ discussed relevant evidence before and after
enumerating the residual functional capacity.
The ALJ’s decision, taken as a whole, includes discussion of the specific medical facts
and non-medical evidence supporting the ALJ’s residual functional capacity determination and
fully complies with SSR 96-8p and Agency regulations.
Plaintiff argues that the ALJ failed to derive a proper residual functional capacity
because the record did not contain any medical opinions related to plaintiff’s ability to function
physically in the workplace. Relying on Gulliams v. Barnhart, 393 F.3d 798 (8th Cir. 2005),
plaintiff states that the ALJ must have some medical evidence to support her conclusion.
Contrary to plaintiff’s argument, the residual functional capacity assessment is based on all
relevant evidence, not just medical evidence. 20 C.F.R.§§ 404.1545 and 416.945. Although
the residual functional capacity formulation is a part of the medical portion of a disability
adjudication (as opposed to the vocational portion), it is not based only on “medical” evidence,
i.e., evidence from medical reports or sources; rather an ALJ has the duty to formulate residual
functional capacity based on all the relevant, credible evidence of records. Cox v. Astrue, 495
34
F.3d 614, 619 (8th Cir. 2007) (“[I]n evaluating a claimant’s RFC an ALJ is not limited to
considering medical evidence exclusively”) (citing Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir.
2001)); Dykes v. Apfel, 223 F.3d 865, 866 (8th Cir. 2000) (per curiam) (“To the extent
[claimant] is arguing that RFC may be proved only by medical evidence, we disagree”).
In any event, the evidence of record does not warrant physical limitations beyond those
included in the residual functional capacity. X-rays showed only “early degenerative disc
disease” and “mild” narrowing, and physical examinations were generally normal, showing
that plaintiff had a normal gait and motor strength and a wide range of motion. No doctors
suggested that plaintiff limit her physical activities in any way, and in fact, an orthopedist
encouraged physical activity and home exercise. Plaintiff’s reports that she cleaned house for
hours at a time, went camping, exercised, played catch with her children, and often took walks
to help control her anxiety further confirm that she did not have physical limitations beyond
those accounted for in the residual functional capacity.
Plaintiff also argues that the ALJ failed to properly develop the record regarding
plaintiff’s physical capacity. However, the duty to develop the record arises when a “crucial
issue is undeveloped” and the evidence is not sufficient to allow the ALJ to form an opinion.
Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005). There is no indication in this case that
the ALJ was confused by the evidence or was unable to make a residual functional capacity
assessment. Tellez v. Barnhart, 403 F.3d 953, 956-57 (8th Cir. 2005) (“there is no indication
that the ALJ felt unable to make the assessment he did and his conclusion is supported by
substantial evidence.”)
Plaintiff argues that the record was not properly developed because the only opinion
regarding plaintiff’s physical impairments was from “a DDS non-medical Single Decision
Maker (SDM) J. Dunlap whom [sic] opined that her physical impairments were non-severe.”
35
There was no duty for the ALJ to further develop the record regarding plaintiff’s physical
impairments. The SDM, whose findings were reviewed by a State agency medical consultant,
Joan Singer, Ph.D. (Tr. 52-53), noted plaintiff did not allege disability due to any physical
impairment and concluded she had no severe physical impairment. It is plaintiff’s
responsibility to provide medical evidence to show that she is disabled. 20 C.F.R. §§ 404.1512
and 416.912.
There was no undeveloped issue here that required the ALJ to further develop the
record. In addition, the ALJ did not mention or assign any weight to this opinion. The ALJ’s
findings do not indicate that she gave any weight to the SDM’s opinion, as the ALJ found that
plaintiff had a severe physical impairment of degenerative disc disease and gave plaintiff
limitations in the residual functional capacity consistent with the finding of a severe physical
impairment. Moreover, a psychologist who performed a consultative examination reviewed all
of plaintiff’s medical records and noted that plaintiff’s MMPI test results showed an individual
who liked to perceive herself as physically ill, which “may represent the displacement of
psychic conflicts into the somatic domain.”
Finally, plaintiff argues that the ALJ’s finding that plaintiff could “sit, stand, or walk for
six out of eight hours” was vague and confusing and could mean that plaintiff was able to sit,
stand and walk not six hours, but six hours total and therefore was unable to work a full eighthour day. This argument is wholly without merit. It is clear from the ALJ’s opinion that
plaintiff had the residual functional capacity to perform a range of “light work,” which,
according to SSR 83-10, generally “requires standing or walking, off and on, for a total of
approximately 6 hours of an 8-hour workday.” When asked in the hypothetical question
about an individual who could “sit, stand or walk six out of eight hours,” the vocational expert
did not ask for clarification or interpret the hypothetical to mean that plaintiff could not work
36
a full day. Had the ALJ found plaintiff unable to perform any combination of activities for
more than six hours total, the vocational expert would not have testified and the ALJ would not
have concluded that plaintiff could perform other jobs that exist in the national economy. And
finally, there is absolutely no evidence at all that plaintiff’s sitting, standing, and walking were
limited so severely. Dr. Jeffries, a treating orthopedic doctor, found only “a slight diminution
in her ability to stand or walk.” Plaintiff told her treating doctor Grace Dymek, M.D., that the
only chronic health problem she had was heart disease/murmur. In June 2009 plaintiff told
Dr. Burrell that she was “exercising regularly.” Therefore, any finding by the ALJ that
plaintiff’s ability to stand or walk was limited to the extent suggested by plaintiff would have
been unsupported by the record.
VIII.
CONCLUSION
Based on all of the above, I find that the substantial evidence in the record as a whole
supports the ALJ’s finding that plaintiff is not disabled. Therefore, it is
ORDERED that plaintiff’s motion for summary judgment is denied. It is further
ORDERED that the decision of the Commissioner is affirmed.
ROBERT E. LARSEN
United States Magistrate Judge
Kansas City, Missouri
July 6, 2012
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