Affandi v. Colvin

Filing 19

ORDER denying plaintiff's motion for judgment and affirming the decision of the Commissioner. Signed on 8/14/14 by Magistrate Judge Robert E. Larsen. (Wilson, Carol)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
VALORIE AFFANDI,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Case No.
13-0398-REL-SSA

ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Valorie Affandi 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 (1) finding plaintiff not
credible, (2) giving greater weight to the opinion of Dr. Cowles than Dr. Sheehan, and (3)
relying on improper vocational expert testimony. 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 March 25, 2010, plaintiff applied for disability benefits alleging that she had been

disabled since February 9, 2010. Plaintiff’s disability stems from paranoia, chronic obstructive
pulmonary disease (“COPD”), torn cartilage in her knee, depression, anxiety disorder, and
high blood pressure. Plaintiff’s application was denied initially. On February 8, 2012, a
hearing was held before an Administrative Law Judge. On March 28, 2012, the ALJ found that
plaintiff was not under a “disability” as defined in the Act. On February 21, 2013, the Appeals
Council denied plaintiff’s request for review. Therefore, the decision of the ALJ stands as the
final decision of the Commissioner.

II.

STANDARD FOR JUDICIAL REVIEW
Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for judicial review of a “final

decision” of the Commissioner. The standard for judicial review by the federal district court is
whether the decision of the Commissioner was supported by substantial evidence. 42 U.S.C. §
405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Mittlestedt v. Apfel, 204 F.3d 847,
850-51 (8th Cir. 2000); Johnson v. Chater, 108 F.3d 178, 179 (8th Cir. 1997); Andler v.
Chater, 100 F.3d 1389, 1392 (8th Cir. 1996). The determination of whether the
Commissioner’s decision is supported by substantial evidence requires review of the entire
record, considering the evidence in support of and in opposition to the Commissioner’s
decision. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); Thomas v. Sullivan, 876
F.2d 666, 669 (8th Cir. 1989). “The Court must also take into consideration the weight of the
evidence in the record and apply a balancing test to evidence which is contradictory.”
Wilcutts v. Apfel, 143 F.3d 1134, 1136 (8th Cir. 1998) (citing Steadman v. Securities &
Exchange Commission, 450 U.S. 91, 99 (1981)).
Substantial evidence means “more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson
v. Perales, 402 U.S. at 401; Jernigan v. Sullivan, 948 F.2d 1070, 1073 n. 5 (8th Cir. 1991).
However, the substantial evidence standard presupposes a zone of choice within which the
decision makers can go either way, without interference by the courts. “[A]n administrative
decision is not subject to reversal merely because substantial evidence would have supported
an opposite decision.” Id.; Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988).

III.

BURDEN OF PROOF AND SEQUENTIAL EVALUATION PROCESS
An individual claiming disability benefits has the burden of proving he is unable to

return to past relevant work by reason of a medically-determinable physical or mental

2

impairment which has lasted or can be expected to last for a continuous period of not less than
twelve months. 42 U.S.C. § 423(d)(1)(A). If the plaintiff establishes that he is unable to return
to past relevant work because of the disability, the burden of persuasion shifts to the
Commissioner to establish that there is some other type of substantial gainful activity in the
national economy that the plaintiff can perform. Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir.
2000); Brock v. Apfel, 118 F. Supp. 2d 974 (W.D. Mo. 2000).
The Social Security Administration has promulgated detailed regulations setting out a
sequential evaluation process to determine whether a claimant is disabled. These regulations
are codified at 20 C.F.R. §§ 404.1501, et seq. The five-step sequential evaluation process used
by the Commissioner is outlined in 20 C.F.R. § 404.1520 and is summarized as follows:
1.

Is the claimant performing substantial gainful activity?
Yes = not disabled.
No = go to next step.

2.
Does the claimant have a severe impairment or a combination of impairments
which significantly limits his ability to do basic work activities?
No = not disabled.
Yes = go to next step.
3.

Does the impairment meet or equal a listed impairment in Appendix 1?
Yes = disabled.
No = go to next step.

4.

Does the impairment prevent the claimant from doing past relevant work?
No = not disabled.
Yes = go to next step where burden shifts to Commissioner.

5.

Does the impairment prevent the claimant from doing any other work?
Yes = disabled.
No = not disabled.

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IV.

THE RECORD
The record consists of the testimony of plaintiff; orthopedic surgeon Robert Campbell

Thompson, M.D.; neuropsychologist Richard Scott Cowles, Ph.D.; and Sugi Y. Komarov, a
vocational expert, 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
The record establishes that plaintiff earned the following income from 1975 through
2011, shown in actual and indexed figures:
Year

Actual
Earnings

Indexed
Earnings

1975
1976
1977
1978
1979
1980
1981
1982
1983
1984
1985
1986
1987
1988
1989
1990
1991
1992
1993
1994
1995
1996
1997
1998
1999

$ 1,217.46
763.40
1,281.37
540.70
1,568.97
387.00
0.00
3,068.68
363.42
2,433.38
5,771.11
15.00
956.57
1,027.00
492.00
0.00
0.00
889.31
0.00
0.00
0.00
0.00
203.14
9,722.29
14,563.96

$ 5,830.63
3,420.06
5,415.99
2,117.26
5,649.51
1,278.35
0.00
8,728.98
985.74
6,233.86
14,180.32
35.79
2,145.81
2,195.86
1,011.80
0.00
0.00
1,602.74
0.00
0.00
0.00
0.00
306.16
13,924.13
19,757.27

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2000
2001
2002
2003
2004
2005
2006
2007
2008
2009
2010
2011
2012

22,438.01
23,324.40
9,738.13
11,173.57
9,373.39
16,063.08
14,476.90
3,278.00
4,057.20
0.00
360.00
0.00
0.00

28,844.03
29,284.85
12,105.26
13,558.19
10,868.57
17,967.91
15,482.03
3,353.41
4,057.20
0.00
360.00
0.00
0.00

(Tr. at 176, 190, 198).
Disability Report - Field Office
On March 25, 2010, S. Allen met face to face with plaintiff and observed that she had
no difficulty hearing, reading, breathing, understanding, concentrating, talking, answering,
sitting, standing, walking, seeing, writing, using her hands, or coherency (Tr. at 200-201).
Disability Report - Adult
In a Disability Report, plaintiff indicated that she can read and write English, that she
weighed 250 pounds, that she completed 12th grade in 1980 but has no specialized job
training, trade or vocational school, and that her medications for her mental impairment
consisted of Cymbalta (antidepressant) and Valium (anti-anxiety) (Tr. at 203-214).
Function Report - Adult
In a Function Report dated April 1, 2010, plaintiff stated that she watches a lot of
television (Tr. at 215-222). Others come to visit her a lot, but she does not have a social life
outside of her family. Her impairments affect her ability to lift, squat, bend, stand, walk, sit,
kneel, climb stairs, see, remember, complete tasks, concentrate, understand, follow instructions
and get along with others. She has no difficulty using her hands, talking or hearing. She can
only walk 4 or 5 feet. She does not follow written instructions. As for spoken instructions, “If

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it is plain and simple, I don’t need redirection. But if I have to figure it out I get help.” She
uses a brace on her knee, and she uses a cane.

B.

SUMMARY OF MEDICAL RECORDS
On August 18, 2008, plaintiff’s sixth application for supplemental security income and

third application for a period of disability and disability insurance benefits were denied initially.
This was the case prior to the one currently before me.
On October 16, 2008, plaintiff saw James True, M.D., at Swope Health Services
Behavioral (Tr. at 307). Plaintiff said, “I am miserable, but the medicine helps I guess.” Dr.
True made the following observations: “She is looking for a job, but cannot find one. The jobs
are tight now. In addition, she has sort of hooked up with a man who expects her to work, get
things done, expects him not to work at all, lazes around and then complains that she is angry
for wanting him to put out the trash, do some work, etc. . . . There is no SI [suicidal ideation]
involved.” Under mental status exam, Dr. True noted that plaintiff was “mildly anxious.” He
prescribed Klonopin (treats anxiety) and Cymbalta (antidepressant).
On April 27, 2009, plaintiff saw a nurse practitioner at Swope Health for medication
refills (Tr. at 293-294). Plaintiff weighed 264 pounds and her blood pressure was 146/80.
She reported neck pain which she rated a 7 out of 10 in severity. She was assessed with
hypertension, asthma and obesity. Hydrochlorothiazide was prescribed for hypertension, and
samples of Advair were provided to treat plaintiff’s asthma. No pain medication was prescribed.
Plaintiff was told to diet and exercise.
On July 16, 2009, plaintiff was treated at Swope Health reporting that she had been out
of her blood pressure medication for two weeks (Tr. at 291-292). She was experiencing chest
pain, anxiety, dizziness and syncope. She reported sleeping 6 to 7 hours per night. Her
physical exam was entirely normal including her neck and extremities. She was assessed with

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hypertension and history of asthma. She was prescribed Maxzide (treats hypertension),
Cymbalta (antidepressant), Loratadine (antihistamine), Albuterol (for asthma) and Advair (for
asthma).
On July 20, 2009, plaintiff saw Dr. True (Tr. at 290).
SUBJECTIVE: “Looking for work.”
OBJECTIVE: The patient got her degree and is looking hard for work, but cannot find
one in this economy, however, she is still proud of her degree which she should be
struggling to make it, lot of people say negative things and try to keep her down, but she
refuses to bend.
MENTAL STATUS EXAM: She is well groomed, pleasant, goal directed in her speech,
euthymic and calm.
Dr. True assessed Bipolar I disorder, most recent episode (or current) mixed,
unspecified, with a GAF of “about 55”. He prescribed Cymbalta (antidepressant) and Klonopin
(treats anxiety).
On December 14, 2009, plaintiff saw Dr. True (Tr. at 289, 298). Plaintiff said she was
awaiting her disability hearing. “Still anxious and so depressed she can’t work. Still with
twisted knee. Depressed or can’t support self.” Plaintiff said Valium (treats anxiety) does not
work as well as Klonopin (treats anxiety). She was still anxious. Dr. True performed a mental
status exam and noted only that plaintiff was depressed and anxious with no psychosis. He
assessed bipolar I disorder, most recent episode (or current) mixed, unspecified and anxiety
disorder not otherwise specified. Her GAF was 42. He discontinued Valium and prescribed
Klonopin (which had actually been prescribed five months earlier), and he gave plaintiff
samples of Cymbalta (antidepressant).
On January 21, 2010, plaintiff saw Dr. True (Tr. at 287-288). The records reflect that
plaintiff said she “never got medical records, and never got her degree.” She was depressed
over having no job, she said she could not work due to depression. She had no suicidal ideation.

7

“Plans failed.” She said she was fired from her job, then was “too depressed to go.” Dr. True
performed a mental status exam and observed that plaintiff was depressed and anxious with no
psychosis. He assess bipolar I disorder and generalized anxiety disorder, and he noted a GAF of
42. “Weeping with decreased mood.” He told plaintiff to stop taking Klonopin. It appears he
prescribed Cymbalta and Valium. “Valium for money issues.”
On February 8, 2010, plaintiff’s sixth application for supplemental security income and
fourth application for a period of disability and disability insurance benefits was denied by an
ALJ.
The next day, February 9, 2010, is plaintiff’s alleged onset date in the case before me.
On March 8, 2010, plaintiff saw Dr. True (Tr. at 286). “I lost my disability application
hearing.”
OBJECTIVE: The patient said that the court told her they never received medical records.
When she went to our medical records, they told her that I had not written any notes. I
showed her in the chart the notes that I indeed had written plus other people. She will
go back to her attorney and try to obtain these notes again. She has no side effects from
the medications. She likes the Cymbalta and gets it through Swope Care, but has to stay
ahead of it. She said, she cannot sleep. When I told her I had given her medicine for
sleep, especially the diazepam, she told me she had not been taking it, but agreed to do
so. It works wonderfully for her for her sleep, but she does not want to get “addicted.”
We discussed this at some length.
MENTAL STATUS EXAM: The patient is irritated, depressed and anxious. There is no
overt psychosis. Today, she [has] no suicidal ideations. . . . She has no energy and
reports that she is “menopausal.”
Dr. True assessed Bipolar I disorder, most recent episode (or current) mixed, unspecified
and anxiety disorder not otherwise specified. Her GAF was “about 42.” He refilled her
Cymbalta and Valium, which was prescribed for insomnia.
On March 16, 2010, plaintiff went to the emergency room at St. Luke’s complaining of
an exacerbation of her asthma and knee pain (Tr. at 310-320). She denied back pain or
difficulty walking. Her physical exam was normal except for wheezing -- her back was

8

normal, extremities were normal, and her psychological examination was normal. X-rays of her
knee and chest were taken. Her lungs were normal. Mild thoracic degenerative disc disease
was noted. Moderately large right knee joint effusion (water on the knee) and degenerative
joint disease were observed. She was assessed with asthma exacerbation due to upper
respiratory infection, possible bronchitis. She was told to use an Ace bandage for her knee
along with ice and over-the-counter Aleve. She was given an antibiotic and a prescription for
Lortab and told to use her Albuterol inhaler.
Nine days later, on March 25, 2010, plaintiff applied for supplemental security income
for the seventh time and a period of disability and disability insurance benefits for the fifth time,
which is the case now before me.
On May 7, 2010, plaintiff saw Dr. True (Tr. at 400). She reported that she was “under
too much stress, I cannot sleep.” The objective section of this record reads as follows: “The
patient states that her life is out of control basically because she thinks she is in an [sic]
relationship that has spun out of control. In addition, she does not have much money. Bills
come in and so forth. She denies suicidal ideation. She does not know if therapy can help, but
eventually wishes to get therapy. I do not assess her as psychotic. There is no delusion or
abnormality in her speech process or content, but she is certainly depressed, but not suicidal.
She is also slightly anxious. She believes it is the med change we made from Klonopin to Valium
was not good and wants to go back to the Klonopin. In addition, she is not sleeping and feels
like the medicines have all plateaued.” Dr. True assessed bipolar I disorder “by history” and
generalized anxiety disorder. Her GAF was “about 48.” Dr. True told plaintiff to continue
Cymbalta, discontinue the Valium and substitute Klonopin, and he prescribed amitriptyline
(antidepressant) for sleep. “I arranged short-term psychotherapy with the director of
psychotherapy here at Mental Health Department.”

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On May 8, 2010, J. Edd Bucklew, Ph.D., a non-examining agency psychologist, reviewed
plaintiff’s file (Tr. at 323-334). Dr. Bucklew found that plaintiff has mild restriction of
activities of daily living; moderate difficulties in maintaining social functioning; and mild
difficulties in maintaining concentration, persistence or pace. “Based on the evidence as a
whole, claimant may have problems at times performing more demanding tasks, and she would
be limited for socially stressful or complex tasks, but she is otherwise able to remember,
understand, and complete instructions with usual supervision.”
On May 10, 2010, plaintiff underwent an initial assessment for psychotherapy at Swope
Health (Tr. at 389-399). Plaintiff reported a lack of motivation to exercise and said she had
gained about 40 pounds. “Client ruptured her knee and reports pain in standing. . . . Client
states that she has been more depressed for the past few weeks. . . . Client states that she stays to
herself more -- can not work outside the home. Trouble focusing -- feels like she is in a trance
most of the time, hard to complete household chores [due to “lack of motivation or desire to
participate in daily living activities”]. . . . Client reports a history of drug use and may have
experienced some delusion as a result.” Plaintiff reported a suicide attempt in 2006 by taking
sleeping pills. Under employment history, plaintiff said she is not able to control her temper
with adults -- “it has gotten worse.” Plaintiff reported that she completed 12th grade. She
reported having used cocaine daily from age 31 to age 34 (i.e., from about 1989 to 1992). She
completed inpatient substance abuse treatment in 1993 and had been drug-free for the past 20
years. In a risk assessment, plaintiff reported “no current thoughts or history of attempts” of
suicide. She checked the box for “ten or more minor instances” of violent behavior or “three or
more serious instances” of violent behavior. She noted no impaired functioning or judgment
and only “mild medical concerns.” The social worker wrote, “Client reports no income with
the exception of her son’s SSI for the past three years.” Plaintiff was assessed with bipolar

10

disorder and panic disorder with a GAF of 42.
On July 9, 2010, plaintiff went to the emergency room at St. Luke’s complaining of
shortness of breath (Tr. at 363-371). She was out of Albuterol. On exam, wheezes were heard.
Her extremities were noted to be normal; her psychological exam was normal. EKG was
normal. “Patient takes no medications.” She was diagnosed with dyspnea (shortness of breath).
Lorazepam (for anxiety) was administered through IV, and she was treated with Albuterol and
Atrovent inhalers. Plaintiff indicated, “I feel so much better.” She was discharged in stable
condition with a prescription for an inhaler.
On August 9, 2010, plaintiff saw Dr. True (Tr. at 388). She said she was doing “okay.”
Plaintiff reported feeling much better due to her therapy. “She used to remain on her medicine
and does pretty well, but has run out. . . . Basically, she denied having side effects from the
medication and says that she sleeps well.” Under Mental Status Exam, Dr. True wrote, “The
patient is friendly with goal-directed speech, bright affect, and properly groomed without
psychotic content to her speech. She appears almost euthymic today.” He assessed bipolar I
disorder and anxiety disorder not otherwise specified with a GAF of “about 45.” He refilled her
Klonopin (treats anxiety), Cymbalta (antidepressant), and Amitriptyline (antidepressant
prescribed for sleep) and told her to return in six months.
On December 21, 2010, plaintiff went to the emergency room at Research Medical
Center reporting “bilateral knee pain for years” (Tr. at 408-412). Plaintiff denied any trauma
but reported her pain a 10 out of 10. Plaintiff’s blood pressure was 133/78. The records do
not reflect any tests or treatment, but plaintiff was discharged in good condition.
On December 27, 2010, plaintiff saw Dr. True (Tr. at 387). Plaintiff said, “still wants on
SS disability.” She said she was still depressed, could not tolerate being around people. Plaintiff
denied suicidal ideation but said she had noted a need for increased Klonopin. On exam

11

plaintiff was noted to be pleasant with depressed mood and avoidant style/affect. She said she
avoids people in order to avoid conflict. Plaintiff was assessed with bipolar I disorder and
anxiety disorder not otherwise specified. He increased her dose of Klonopin and told her to stay
in therapy and exercise.
On May 5, 2011, plaintiff was taken by ambulance to the emergency room at Research
Medical Center due to head pain (Tr. at 416-433). She reported no history of headaches.
Plaintiff was observed to be alert, fully oriented, cooperative and tearful. She reported her pain
a 10 out of 10 in intensity and said it had started the day before. Her blood pressure was
165/74. A CT scan of the head was normal. She had an EKG and was assessed with
bradycardia.1 A CT scan of the cervical spine was done due to neck pain. Lee Graham, M.D.,
assessed mild central posterior C4-C5 disc protrusion and degenerative changes of C5-C6 disc.
The records do not indicate what if any treatment was provided.
On May 23, 2011, plaintiff saw Dr. True and said she was worried (Tr. at 386). “Fears
she has dementia, but clearly explains in detail how she sees it. . . . No money, lives off son, no
car.” Plaintiff was observed to be crying but she had no suicidal ideation, no psychosis. Her
assessments remained the same with a GAF of 40. Dr. True decreased plaintiff’s Klonopin and
prescribed Namenda (treats dementia).
On June 1, 2011, plaintiff saw Milton Levin, M.D., at Swope Health indicating she was
out of her medications (Tr. at 404-405). Plaintiff weighed 281 pounds, her blood pressure was
168/102. On exam no wheezing was heard. Her cervical spine was normal, thoracic spine
was normal, lumbar spine was normal. She had painful and limited range of motion in her
knee. She rated her pain an 8 out of 10 in severity. Her gait was normal, motor strength was
1

Bradycardia is a slower than normal heart rate. The heart usually beats between 60 and
100 times a minute in an adult at rest. Bradycardia is assessed when the heart beats fewer than
60 times a minute.

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normal. She was diagnosed with “osteoarthrosis, unspecified w/other generalized or localized,
lower leg.” He prescribed Naproxen (non-steroidal anti-inflammatory).
On August 9, 2011, plaintiff saw Jennifer Santiago, a nurse practitioner at Swope Health
(Tr. at 402-403). Her blood pressure was elevated: “Diagnosed hypertensive many years ago,
out of medication for a week.” Plaintiff weighed 292 pounds, her blood pressure was 146/89,
her pain scale was zero. She denied chests pain or shortness of breath. She was noted to be
pleasant. She had no tenderness in her neck. She was assessed with “essential hypertension
benign.” Her hydrochlorothiazide was refilled.
At 9:00 a.m. on November 2, 2011, plaintiff saw Joseph Noland, M.D., an orthopedic
specialist, in connection with her disability case (Tr. at 346-354). Plaintiff reported knee pain
for the past two years. “She denies any locking, catching or feeling of instability.” Plaintiff was
taking only Cymbalta (antidepressant) and Klonopin (treats anxiety). “Denies tobacco use
positive for alcohol use.” Plaintiff had full range of motion of both knees but was tender to
palpation. Her gait was “normal and stable, non-antalgic.” Plaintiff was full weight bearing,
able to ambulate in a straight line, able to climb onto the examination table without assistance.
She was unable to squat and rise without assistance. “Based on the above information, in my
opinion sitting would be without limitations. Standing would be with limitations. Walking
would be with limitations. Lifting would be without limitations. Carrying would be without
limitations. Handling objects would be with limitations.”
Dr. Noland found that plaintiff could lift and carry up to 100 pounds continuously, sit
for 8 hours per day, walk for 6 hours per day and 4 hours continuously, stand for 6 hours per
day and 4 hours continuously, and does not need a cane to ambulate. He found that plaintiff

13

can frequently reach in all directions with her right arm due to a right should lipoma2 and
continuously in all directions with her left arm. He found that she could continuously handle,
finger, feel, push or pull bilaterally. He found that she could continuously climb, balance and
stoop, and that she could frequently kneel, crouch or crawl. She had no environmental
limitations as a result of her orthopedic condition.
Two hours later, at 11:00 a.m., on November 2, 2011, plaintiff underwent a
psychological evaluation by Tammy Sheehan, J.D., Psy.D., a licensed psychologist, in connection
with her application for disability benefits (Tr. at 337-343). Dr. Sheehan also completed a
Medical Source Statement.
BEHAVIORAL OBSERVATIONS: . . . She was well-dressed in business-casual attire,
which was appropriate and clean. Grooming and hygiene were adequate; her hair was
somewhat unkempt and she appeared tired and sad. The claimant’s gait was without
abnormality. . . . She was cooperative and eye contact with the examiner was good, but
she was quite tearful throughout the evaluation.
HISTORY: . . . The claimant reported that during her adulthood she worked in a variety
of jobs including customer service, nursing, and telemarketing. She stated that she was
last employed in 2008 in a customer service position, but she did not make it through
the training period because of mental health issues. She said, “I felt misunderstood. I
became a crazy person.” . . .
The claimant’s mental health history is significant. She stated that when she was
pregnant in 1978 she suffered from depression and tried to commit suicide by cutting
her wrists. In the “early 1990s” she received inpatient psychiatric treatment at Research
Medical Center after taking an overdose. In 2006 she received inpatient psychiatric
treatment at Two Rivers Psychiatric Hospital after overdosing a second time. She has
received follow-up psychiatric care from Swope Health Center (Dr. James True) for the
last several years, and records indicate she has been diagnosed with Bipolar Disorder,
Most Recent Episode Mixed, and Anxiety Disorder Not Otherwise Specified. The
2

“A lipoma is a slow-growing, fatty lump that’s most often situated between your skin and
the underlying muscle layer. Often a lipoma is easy to identify because it moves readily with
slight finger pressure. It’s doughy to touch and usually not tender. You may have more than
one lipoma. Lipomas can occur at any age, but they’re most often detected during middle age.
A lipoma isn’t cancer and is usually harmless. Treatment generally isn’t necessary, but if the
lipoma bothers you, is painful or is growing, you may want to have it removed.”
http://www.mayoclinic.org/diseases-conditions/lipoma/basics/definition/con-20024646

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claimant also sees a therapist at Swope as often as she is able but transportation is a
problem for her. Current psychotropic medications are clonazepam (an anxiolytic),
Cymbalta (an antidepressant), and trazodone (an antidepressant used as a sleep aid). . . .
MENTAL STATUS: The claimant was oriented to person, time, place and situation.
Thought processes were mildly disorganized, evidenced in some circumstantiality in her
responses to questions. Thought content was generally reality based, but she talked
about feeling paranoid on occasion and often fears that people may be sneaking around
her house; sometimes she goes outside in the dark to make sure no one is lurking there.
The claimant acknowledged that some of her fears are based on the fact that she knew
people in the past who were of a criminal element, and she has a son who served twelve
years in prison. . . . There were no clinical indications to suggest that she was
experiencing perceptual disturbances during the evaluation.
The claimant’s vocabulary, grammar and general fund of information suggested
intellectual functioning in the average range, but mental processing was slow and
mental control was poor. . . Her fund of historic, personal-critical, and general
information suggested intact memory. The claimant possesses basic literacy and
calculation skills. Registration and recall were unimpaired. On clinical tasks of
sustained attention and concentration, her performances suggested a moderate amount
of distractibility. . . . Comprehension and reasoning were within normal limits. The
claimant is capable of abstract thinking. No deficits were noted in basic judgment and
problem solving.
The claimant’s affect was very tearful throughout the evaluation. She looked extremely
tired. The claimant described her mood as “confused.” . . . The claimant denied
homicidal ideations but stated that she becomes so rageful at times that she is afraid she
might hurt someone.
ACTIVITIES OF DAILY LIVING: The claimant reported that she is able to meet her own
needs for hygiene and nutrition. She is able to do her own laundry, keep her own
calendar and maintain appointments. . . . The claimant is able to prepare simple meals
and provides some assistance to her son, who is developmentally disabled. She is able to
read and write. . . . The claimant reported that she does not have a driver’s license. She
stated that she does not ride the city bus because it is not convenient where she lives.
CONCLUSION: . . . Her reported symptoms and presentation are consistent with her
previous diagnosis of bipolar disorder with mixed episode and some feelings of paranoia
at times. Although she is able to understand and remember simple instructions, her
ability to attend and concentrate on such tasks during a normal workday on a day-today basis is very limited at the present time. Because of the claimant’s very low tearful
mood and reported irritability with occasional paranoia, her capacity to interact
appropriately with the general public and adapt to the environment is also very limited.
She reported that she maintained employment over the years until 2008, but today her
constant tearfulness, very low mood, and difficulties with concentration suggests that
currently she would not be capable of employment on a day-to-day basis.

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The claimant does have a good deal of insight into her psychological condition, and she
indicates she is compliant with psychiatric and psychological treatment. Despite her
compliance, however, she is not functioning well. The claimant was encouraged to call
her physician (Dr. True)3 and report the fact that she is having 48 hour periods of going
without sleep even though she is taking medication. Her condition appears chronic
based on her history and records. Because she has received on-going treatment for a
good period of time with variable success, one might expect only minimal improvement
in her condition with continued treatment. Unfortunately, the claimant’s disorder may
be one that is quite difficult to manage under the best of circumstances.
DIAGNOSES:
Axis I:
Bipolar Disorder, Most recent Episode Mixed (By History)
*****
Axis IV:
Financial stress; Lives with disabled son; Unemployed
Axis V:
GAF: 40
Dr. Sheehan found that plaintiff had no limitations in her ability to understand and
remember simple instructions. She had moderate difficulty in carrying out simple instructions.
She was markedly limited in her ability to make judgments on simple work-related decisions.
She was extremely limited in her ability to understand and remember complex instructions,
carry out complex instructions and make judgments on complex work-related decisions. “The
claimant is very distractible and is extremely tearful. Her thinking is mildly disorganized and
she reports bouts of rage on a daily basis.”
Dr. Sheehan found that plaintiff was moderately impaired in her ability to interact
appropriately with the public; markedly impaired in her ability to interact appropriately with
supervisors, markedly impaired in her ability to interact appropriately with coworkers, and
extremely impaired in her ability to respond appropriately to usual work situations and to
changes in a routine work setting. “Based on her low mood and reported irritability and
occasional paranoia, she would have a lot of difficulty interacting with others in a work
setting.”
3

According to the records, plaintiff did not see Dr. True again for four months and on that
next appointment did not mention to him that she stays up for 48 hours despite being on
medication.

16

On December 2, 2011, plaintiff saw Maurice Flemming a physician’s assistant at Swope
Health, for cough and chest congestion (Tr. at 436-437). Plaintiff weighed 289 pounds. Her
blood pressure was 136/89. Plaintiff had scattered wheezes throughout both lungs; however,
post nebulizer treatment her lungs were clear. She was assessed with acute exacerbation of
asthma and acute bronchitis. She was prescribed an antibiotic and an inhaler.
On February 3, 2012, plaintiff saw Dr. True for a medication check (Tr. at 438-439).
Plaintiff arrived alone for her appointment. “[N]o sleep, worried, frets all the time; in a bad
relationship that is not good for me; grew depend[ent] on him and now realized what a neurotic
thing it is; so now when she is alone, she panics and then is mad at herself for falling in the
trap.” Dr. True noted that plaintiff was dressed appropriately, her behavior was normal, her
attitude was agreeable but negative, her affect was normal, her speech was normal, memory
was intact, and she was fully oriented. Insight was impaired; judgment was poor; mood was
depressed, frustrated, angry. She reported situational anxiety and panic attacks. She had no
suicidal ideation. She was having no medication side effects. Dr. True’s diagnoses were the
same as on his other medical records; he assessed a GAF of 45. He told plaintiff to continue her
same medications. He prescribed Valium; told her to try “alternatives to meds and exercises
such as relaxation tapes, yoga, meditation”; and “referred to therapy with C. Logan per her
request.” Despite assessing “anxiety state, unspecified”, he completed a referral to a licensed
clinical social worker due to “severe neurotic anxiety.” He recommended she follow up in
three months.
On February 8, 2012, the administrative hearing was held. On March 28, 2012, the ALJ
found plaintiff not disabled.
The following evidence was submitted to the Appeals Council.

17

On March 30, 2012, plaintiff saw Otis Latimer, M.D., at Swope Health (Tr. at 456).
Plaintiff reported chronic asthma her entire life. She said she had not been able to afford her
medications and had been using her mother’s medicine for the past two months. She had
wheezing on exam. She weighed 295 pounds and her blood pressure was 145/91. She was
assessed with chronic asthma and hypertension. He gave her a prescription for
hydrochlorothiazide (treats hypertension) which she had been prescribed in the past, and he
prescribed a steroid pill.
On May 4, 2012, plaintiff was seen at Swope Behavioral (Tr. at 454). She was tearful
and emotional but denied suicidal ideation. Individual therapy and anxiety group therapy were
recommended.
On July 19, 2012, plaintiff called Swope Behavioral and said she had stopped taking her
medication because it was not working (Tr. at 452). She said she could not come in because she
had no transportation. She was advised to find a way to come in and not to stop her
medications until she could be seen by a medical professional.
On October 10, 2012, plaintiff saw Dr. True (Tr. at 449). “Wants to work on improving
self esteem and set boundaries with boyfriend but not panic when he leaves; struggles with
independence and neurotic need.” The appointment was 10 minutes long. Dr. True assessed
bipolar I disorder, anxiety state unspecified, and post traumatic stress disorder with a GAF of
45. He told her to follow up in a year.
On October 22, 2012, plaintiff participated in individual therapy with Beverly Cranmer,
LCSW, at Swope Health (Tr. a 445-446). “I think those medicines are really helping me. I do
have some questions for the nurse practitioner next time I see her, but I am feeling so much
better. I don’t feel like I’m ready to fight or ready to break into tears. I feel good.” Plaintiff was
observed to smile genuinely and talk with hope for the future. “She discussed an idea of

18

returning to school in the Spring, to a Tailoring course at Penn Valley, a two year program. She
talked about her plans and what she would like to do after completing those studies. She also
discussed her difficulties with getting grants and loans because she has a large school loan that
she is responsible for from her son’s trade school several years ago.”
On November 5, 2012, plaintiff saw Florence Oni, a nurse practitioner at Swope
Behavior, for a medication check (Tr. at 442-443). Plaintiff arrived alone. She was noted to be
compliant with her medication and was reporting increased functionality. Her appearance was
appropriate, attitude was agreeable, behavior was normal, cognitive function was intact,
perception was normal, insight was intact, judgment was intact, memory was intact, thought
content was logical and coherent, suicidal ideation was not present, mood was slightly
depressed. “Has a live in male friend who does not get along with her son who may be released
from prison soon.” Ms. Oni refilled plaintiff’s BuSpar (for anxiety) Vistaril (antihistamine),
Amitriptyline (antidepressant used to treat insomnia), Paxil (antidepressant). She was told to
stop taking Cymbalta (antidepressant).

C.

SUMMARY OF TESTIMONY
During the February 8, 2012, hearing, plaintiff testified; orthopedic surgeon Robert

Campbell Thompson, M.D., testified; neuropsychologist Richard Scott Cowles, Ph.D., testified;
and Sugi Y. Komarov, a vocational expert, testified.
1.

Plaintiff’s testimony.
At the time of the hearing plaintiff was 53 years of age (Tr. at 32). She was 5’11” tall

and weighed 280 pounds (Tr. at 32). Plaintiff completed 9th grade and did not get a GED but
did attend a business school where she completed a program in 1982 to become a medical
secretary (Tr. at 32-33). The program was one year long (Tr. at 33). Plaintiff lied on the
admission paper, indicating she had a high school diploma, and the business school admitted

19

her (Tr. at 33).
Plaintiff cannot work due to worsening symptoms due to her medication (Tr. at 34-35).
Sometimes she does not sleep for two days even with her medication (Tr. at 34, 36). When she
does not sleep, her body aches (Tr. at 34). She has pain in her neck, she has pain in a stress
muscle in her back, her knees become immobile, and she loses her concentration and memory
(Tr. at 34-35). Plaintiff does not know which medications cause her symptoms (Tr. at 35). It
may be her depression that takes her strength and energy away -- it is like she is stuck and
cannot move (Tr. at 35). Plaintiff has been on this medication for the past 15 years (Tr. at 36).
Plaintiff was hospitalized a few times due to her mental condition (Tr. at 36-37).
Plaintiff testified that her last hospitalization was in the early 1990s, but then she changed her
testimony and said she was hospitalized in 2006 after she took “all those pills” (Tr. at 37). She
was trying to kill herself when she did that (Tr. at 37). Plaintiff sees her psychiatrist once every
3 months and she sees a therapist every 2 or 3 weeks (Tr. at 37).
Plaintiff has asthma; and when she has an onset, she cannot leave the house because she
has so many triggers (Tr. at 37). She has had asthma since she was a child (Tr. at 37-38).
Plaintiff cannot work with asthma because she has to stay home and use a nebulizer (Tr. at 38).
Plaintiff has been to the emergency room 2 or 3 times due to her asthma (Tr. at 38). Plaintiff
does not smoke (Tr. at 39).
Plaintiff has pain in her knees (Tr. at 39). She injured her right knee about 2 years ago
but she believes her left knee is impaired now as well (Tr. at 39). Plaintiff takes non-steroidal
anti-inflammatories and has a brace for her knee (Tr. a 40). She has not participated in
physical therapy or had any surgeries or injections (Tr. at 40). When she sits, plaintiff has to
raise her leg so that it is even with her waist to keep down the knee swelling (Tr. at 40). Her
doctor advised her to do this (Tr. at 41). Walking hurts her knee (Tr. at 40). She can walk 1

20

block; she can stand for 5 minutes at a time (Tr. at 40). Plaintiff does not lift or carry anything
anymore because she is afraid she will drop it or fall -- her balance is bad (Tr. at 41). She last
fell a couple weeks before the hearing (Tr. at 41). Plaintiff can lift 30 pounds at the most; she
can lift and carry a 10-pound bag of potatoes to the sink (Tr. at 42). Plaintiff could not lift or
carry these weights continuously -- the most she could carry on a regular basis would be up to
5 pounds (Tr. at 42).
Plaintiff lives with her disabled son (Tr. at 42-43). He had brain damage when he was
four, and she does some things for him (Tr. at 43). He helps her by fixing meals and doing
chores around the house (Tr. at 43). He does some cooking -- plaintiff is not able to cook at all
because she cannot stand on her kitchen floor (Tr. at 43). Plaintiff’s house is one level and it
has a basement (Tr. at 43). She does not go down to the basement because she cannot go up or
down stairs (Tr. at 44).
Plaintiff is able to shop for groceries as long as someone is with her and she can use a
motorized cart (Tr. at 44). Plaintiff does not drive (Tr. at 44). She stopped driving in 2006 due
to paranoia, thinking someone was following her and trying to kill her (Tr. at 44). She does not
take public transportation by herself because she does not feel safe (Tr. at 45). When asked
why she does not feel safe, plaintiff said, “I used to be involved with some really shady people
and that’s the reason why.” (Tr. at 45). Plaintiff has no friends with whom she socializes (Tr. at
45). She watches television and has been wanting to sew, but she cannot get herself to do it (Tr.
at 45).
Plaintiff last worked in 2008 (Tr. at 34). She tried to get a job as a patient care tech but
she could not do it (Tr. at 34). In 2007 plaintiff did customer service for a temporary service
called GTS (Tr. at 66). She did that for about three weeks (Tr. at 66). At United Health Care she
was an agent (Tr. at 66). “[I]t was a high pressure job. I had a lot of duties. It was a

21

prescription company and I would process refills and give patients information on their
insurance coverage.” (Tr. at 66). This was all done by telephone (Tr. at 66). She worked for
United Health Care for 2 years, and it was a sit-down job (Tr. at 66).
In 2005 she was a patient care tech for Ruth Bronson (Tr. at 66-67). Ms. Bronson had
had a stroke and was bed-ridden (Tr. at 67). Plaintiff took care of her by bathing her, cleaning
her bed, bringing her meals (Tr. at 67).
Spherion was a temporary service where plaintiff worked in 2005 (Tr. at 67). She
performed customer service, taking calls and processing orders from a magazine by putting
information in a computer (Tr. at 67). She did that job full time for about a year (Tr. at 67). In
2005 plaintiff also did customer service for Workforce Strategies (Tr. at 68-69). In 2004 she
was a technician/customer service representative taking incoming calls and helping to
troubleshoot computers (Tr. at 68). She worked there for about six months (Tr. at 68). She
performed customer service for Allied Staffing in 2004 and was sent to various job sites (Tr. at
68).
Plaintiff performed customer service for Accent Marketing Services, for Systematic
Business Services, and for Gateway Companies (Tr. at 68-69). Those were telephone jobs (Tr. at
69). She worked in customer service for T-Mobile, Teletech, and Sprint (Tr. at 69). Plaintiff
was a patient care technician for Comprehensive Mental Health (Tr. at 69). She assisted
individuals who were unable to be left alone due to mental health issues or some other
impairment, and she would prepare their lunch, help them with chores, and sit with them (Tr.
at 69). This was a full-time job which required that she lift the patients (Tr. at 69-70).
Plaintiff had many other jobs, all in customer service (Tr. at 70). She was able to recall
the names of her employers, her duties, and the approximate length of employment for a long
list of jobs she held in the past (Tr. at 70-71).

22

Plaintiff was asked why she had so many jobs (Tr. at 72).
A.

I don’t know. I don’t mingle very well with other people and me and the
supervisors didn’t get along or the coworkers and I just couldn’t keep the job. I
would get fired.

Q.

Well would you have run-ins with supervisors or coworkers?

A.

With the supervisor and the coworkers, yes.

Q.

So I think the doctor mentioned something about some violent behavior in your
record. Was that towards supervisors and coworkers?

A.

Yes.

Q.

How would that be manifested? What would you do?

A.

I’d go off on them.

Q.

Okay. When you say go off do you mean yell, scream? Did you become --

A.

I was threaten.

Q.

-- physical? You threatened?

A.

Yes. Well I felt threatened. I felt threatened so I’d become combative and I’d
threaten them.

Q.

And so is that the reason they would fire you? Because [of] that? You couldn’t
get along with anybody?

A.

Yes.

(Tr. at 72-73).
2.

Medical expert testimony.
Medical expert Robert Thompson, M.D., testified at the request of the Administrative

Law Judge. The medical records establish that plaintiff has morbid obesity and degenerative
joint disease of the right knee (Tr. at 58). There is no evidence of severe impairment of
ambulation or gross deformity, instability, or severe limitation of the motion of the right knee
(Tr. at 58). There is no evidence of central of foraminal stenosis in plaintiff’s cervical spine, and
there are no specific neurological abnormalities noted (Tr. at 59, 60).

23

Dr. Thompson agrees with the assessment done by Joseph Noland, M.D., with two
important exceptions (Tr. at 59). Dr. Thompson would reduce the lifting and carrying to 21 to
50 pounds only occasionally, and he does not believe plaintiff should lift more than 50 pounds
ever (Tr. at 59). Dr. Thompson would also restrict overhead use of both arms to occasional,
because overhead use of the arms, particularly with lifting, aggravates the cervical spine
arthritis (Tr. at 59-60).
Dr. Thompson’s opinion is that plaintiff should never climb ladders or scaffolding due to
her morbid obesity (Tr. at 61). Crawling should also be avoided due to needing to keep the
head up and that aggravates the cervical spine (Tr. at 61-62). Crouching and kneeling would
be occasional (Tr. at 62). Stooping could be done frequently but not continually (Tr. at 62).
Due to plaintiff’s asthma, Dr. Thompson believes that she should have no exposure to
dust, odors, fumes, and pulmonary irritants beyond what might be found in a normal office or
retail setting (Tr. at 62-63).
Dr. Thompson does not believe there is any basis to find a limitation on the left knee and
noted that the consultative report probably contains a mistype when it states that plaintiff’s
symptoms are worse on her left knee than her right because all of the medical evidence pertains
to her right knee (Tr. at 63).
3.

Psychological expert testimony.
Medical expert Richard Cowles, Ph.D., testified at the request of the Administrative Law

Judge. The earliest notation in the medical records dealing with any mental symptoms was
October 16, 2008, when mild anxiety and depression were observed and plaintiff was
diagnosed with major depressive disorder, recurrent, severe (Tr. at 47). She was first diagnosed
with bipolar I disorder on February 9, 2009 (Tr. at 47). Those records indicate that plaintiff
reported a suicide attempt in April 2006; however, there are no medical records related to the

24

alleged suicide attempt (Tr. at 47). In March 2010 plaintiff was supposed to be taking
Diazepam but indicated she was not taking it due to a fear of addiction (Tr. at 47-48). Dr.
Cowles noted that plaintiff was listed as being irritated, depressed, anxious and having suicidal
ideation; however, the records from March 2010 specifically deny suicidal ideation. On
October 25, 2011, she saw Dr. Sheehan and reported a suicide attempt in 1978 while she was
pregnant (Tr. at 48). She said that she cut her wrists, but again there are no medical records
substantiating this (Tr. at 48). She said she tried to overdose in the 1990s, but there are no
medical records for this (Tr. at 48). She reported a suicide attempt and inpatient treatment in
2006, but there are no medical records for that (Tr. at 48). The records show that she quit
using crack cocaine in 1994 (Tr. at 48). The records indicate that plaintiff reported feeling
better when she participates in therapy, and that she does pretty well on medication but had
run out of her medication (Tr. at 49).
In all of plaintiff’s medical records, there appear two mental diagnoses: bipolar I
disorder and anxiety not otherwise specified (Tr. at 50). There are no records of her being
hospitalized (Tr. at 50). Her participation in therapy has not been consistent (Tr. at 50).
Plaintiff’s diagnosis of bipolar I disorder is consistently throughout the records (Tr. at
51). Dr. Cowles found it unusual that plaintiff has not been prescribed a mood stabilizer which
is a typical form of treatment for bipolar I disorder (Tr. at 51). Cymbalta is an antidepressant,
Klonopin is for anxiety, Valium is for anxiety (Tr. at 54). Anticonvulsants are typically used as
mood stabilizers, examples of which are Depakote or Lithium (Tr. at 54).
With regard to plaintiff’s records showing low GAF scores, Dr. Cowles testified as
follows:
The GAF scores in this case don’t appear to match up well with the description. For
instance, in 11-F on page 13 we have this mini mental status exam in the normal range.
They’re also reporting, on page 5, that she’s feeling better, doing well in therapy and yet
they give her a GAF score of 42, on page 15.

25

I think it’s not unusual in records for the GAF scores to not be consistent with the overall
description, objective evidence, and part of that is probably simply bad record keeping.
Once there’s a score on the record sometimes they tend to repeat it without reassessing.
And they do not make clear that this is the standing score they’ve been using for a while
rather than degrade it individually each time.
The other issue there is, for the sake of insurance reimbursement a certain score is
required on the GAF scale so a lot of times facilities will simply give the score that’s
necessary to get services for a client. And it may not be as accurate as their more
elaborated descriptions of what’s happening. And I felt that was what was happening in
these records. The scores were so low I was concerned and double checked the written
descriptions and they just did not express the same severity as those GAF scores.
*****
With the GAF scores you have to give a certain score, below a certain number, in order
for insurance to reimburse and in order for someone’s problems to be considered serious
enough for them to get treatment. So lots of times treating facilities will establish that
number based on what they need to treat someone without actually looking at individual
day-to-day how someone is doing. . . .
I certainly see it frequently. I don’t want to say it’s a common practice but I’ve seen it in
many records where when the score doesn’t make sense I think it’s often because it was
done on an administrative level and not necessarily by the clinician. . . .
(Tr. at 52-53, 56).
Plaintiff’s activities of daily living are only mildly affected (Tr. at 50). Her social
functioning, based on the risk assessment in the record, her paranoia, and her mood
disturbance, seems to be markedly affected (Tr. at 50). Her anxiety problems are not well
documented in the record (Tr. at 50). She has normal concentration in one place and very
limited concentration in another (Tr. at 50). “There’s just not enough development for any
conclusion beyond moderate effects on concentration, persistence, pace.” (Tr. at 50). Based on
these findings, plaintiff is limited to simple or unskilled work only and she should have only
minimal contact with the public and coworkers (Tr. at 51).
4.

Vocational expert testimony.
Vocational expert Sugi Komarov testified at the request of the Administrative Law Judge.

26

Plaintiff’s past relevant work includes order clerk, also known as customer service
representative, which is semi-skilled with an SVP of 4, sedentary; hand packager, unskilled with
an SVP of 2, medium; home-health aid, semi-skilled with an SVP of 2, medium; and customer
complaint clerk, skilled with an SVP of 5, sedentary (Tr. at 74).
The first hypothetical involved a person who could lift and carry up to 50 pounds
occasionally and 25 pounds frequently, could sit without limitation, could stand and walk for 6
hours per day, could occasionally reach overhead, and should avoid looking above the horizon
(Tr. at 75). The person should avoid climbing ladders, scaffolds and ropes; avoid crawling (Tr.
at 75). The person could occasionally crouch, kneel, stoop, and climb ramps and stairs (Tr. at
75). The person should avoid exposure to dust, gases, fumes, odors, and poor ventilation
beyond what would be present in a retail or office setting (Tr. at 75). The person should avoid
unprotected heights, dangerous machinery, vibration, and cold temperatures (Tr. at 75). The
person can perform simple, unskilled work; needs only minimal contact with the public and
coworkers, i.e., someone who can come and go without much interaction with others (Tr. at
75-76). Such a person could not perform any of plaintiff’s past relevant work (Tr. at 76).
However, the person could work as a mail room clerk, DOT 209.687-026, light, unskilled with
an SVP of 2, with 1,800 in Missouri and 90,000 in the country; a parking lot attendant, DOT
915.73-010, light unskilled with an SVP of 2, with 550 jobs in Missouri and 50,000 in the
country (the original numbers were reduced by half due to the cold weather restriction);
sewing machine operator, DOT 786.685-030, light, unskilled with an SVP of 2, with 1,200 in
Missouri and 120,000 in the country; or photocopy machine operator, DOT 207.685-014,
light, unskilled with an SVP of 2, with 900 in Missouri and 60,000 in the country (Tr. at 7677).

27

The second hypothetical was the same as the first except the person has marked
limitations in the ability to make judgments on simple work-related decisions and in interacting
appropriately with supervisors and coworkers; an extreme limitation in the ability to respond
appropriately to usual work situations and to changes in a routine work setting (Tr. at 79).
Such a person could perform no work (Tr. at 79).

V.

FINDINGS OF THE ALJ
Administrative Law Judge Jack McCarthy entered his opinion on March 28, 2012 (Tr. at

10-24). The ALJ first pointed out that plaintiff has filed 7 applications for supplemental security
income under Title XVI and 5 applications under Title II (Tr. at 13). Her first application was
filed on October 15, 1985, and alleged an onset of October 9, 1978. That claim was denied on
February 6, 1986. Her second application was filed on June 13, 1995, alleging an onset date of
September 5, 1985 (Tr. at 13). That claim was denied by an ALJ on December 26, 1996 (Tr. at
13). The third application was filed August 7, 2002, alleging an onset date of October 1, 2002
(Tr. at 13). The claim was denied on June 11, 2003 (Tr. at 13). She filed her fourth application
on June 15, 2004, alleging an onset date of July 1, 2002 (Tr. at 13). That claim was denied on
October 29, 2004 (Tr. at 13). The fifth application was filed on August 1, 2006, alleging an
onset date of June 15, 2006 (Tr. at 13). The claim was denied on September 16, 2006 (Tr. at
13). The sixth application was filed on June 13, 2008, alleging an onset date of May 1, 2008
(Tr. at 14). That claim was denied by an ALJ on February 8, 2010 (Tr. at 14). The alleged onset
date in the current application is February 9, 2010, which is the day after the prior unfavorable
decision by an administrative law judge (Tr. at 14). Plaintiff’s last insured date was September
30, 2013 (Tr. at 14).
Step one. Plaintiff has not engaged in substantial gainful activity since her alleged onset
date (Tr. at 14). She worked after this date; however, the work did not rise to the level of

28

substantial gainful activity (Tr. at 14).
Step two. Plaintiff suffers from the following severe impairments: degenerative joint
disease of the right knee, morbid obesity, degenerative disc disease of the cervical spine, asthma,
and bipolar I disorder (Tr. at 14).
Step three. Plaintiff’s impairments do not meet or equal a listed impairment (Tr. at 1718).
Step four. Plaintiff retains the residual functional capacity to perform medium work.
She can lift and carry up to 50 pounds occasionally and 25 pound frequently; stand and walk 6
hours per day; sit without limitation; reach overhead occasionally; look above the horizon
occasionally. She should avoid crawling and climbing ladders, ropes and scaffolds. She is
limited to occasional stooping, crouch, kneeling and climbing stairs or ramps. She should avoid
exposure to dust, gases, fumes, odors and poor ventilation beyond what would be present in a
retail or office setting. She should avoid unprotected heights, dangerous machinery, vibration
and cold temperatures. She is able to perform simple, unskilled work but is limited to minimal
contact with the public and co-workers (Tr. at 17). With this residual functional capacity,
plaintiff is unable to perform any past relevant work (Tr. at 22).
Step five. Plaintiff is capable of performing other work available in significant numbers
in the economy such as mail room clerk, photocopy machine operator, and sewing machine
operator (Tr. at 23). Therefore, plaintiff is not disabled (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. Rautio v. Bowen, 862 F.2d 176, 178 (8th Cir. 1988); Benskin v. Bowen,

29

830 F.2d 878, 882 (8th Cir. 1987). If there are inconsistencies in the record as a whole, the ALJ
may discount subjective complaints. Gray v. Apfel, 192 F.3d 799, 803 (8th Cir. 1999); McClees
v. Shalala, 2 F.3d 301, 303 (8th Cir. 1993). The ALJ, however, must make express credibility
determinations and set forth the inconsistencies which led to his or her conclusions. Hall v.
Chater, 62 F.3d 220, 223 (8th Cir. 1995); Robinson v. Sullivan, 956 F.2d 836, 839 (8th Cir.
1992). If an ALJ explicitly discredits testimony and gives legally sufficient reasons for doing so,
the court will defer to the ALJ’s judgment unless it is not supported by substantial evidence on
the record as a whole. Robinson v. Sullivan, 956 F.2d at 841.
In this case, I find that the ALJ’s decision to discredit plaintiff’s subjective complaints is
supported by substantial evidence. Subjective complaints may not be evaluated solely on the
basis of objective medical evidence or personal observations by the ALJ. In determining
credibility, consideration must be given to all relevant factors, including plaintiff’s prior work
record and observations by third parties and treating and examining physicians relating to such
matters as plaintiff’s daily activities; the duration, frequency, and intensity of the symptoms;
precipitating and aggravating factors; dosage, effectiveness, and side effects of medication; and
functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). Social
Security Ruling 96-7p encompasses the same factors as those enumerated in the Polaski
opinion, and additionally states that the following factors should be considered: Treatment,
other than medication, the individual receives or has received for relief of pain or other
symptoms; and any measures other than treatment the individual uses or has used to relieve
pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every
hour, or sleeping on a board).
The ALJ had this to say about plaintiff’s prior work record:
The claimant filed applications for disability benefits in 1985, 1995, 2002, 2004, 2006,
2008, and 2010. However, the claimant performed substantial gainful activity in at

30

least 1998 through 2006. The claimant’s credibility is seriously compromised by her
work activity during multiple periods when she alleges that she was disabled.
(Tr. at 19). Although plaintiff argues that she has had more than 40 jobs in her life, the
evidence establishes that during the past almost 30 years, plaintiff has been attempting to get
disability benefits, alleging an onset date as early as 1978. During the entire length of at least
three of those disability applications, plaintiff performed substantial gainful activity every year.
Working with impairments coupled with a lack of evidence that the impairments have
worsened, demonstrates that the impairments are not disabling in the present. Goff v. Barnhart,
421 F.3ed 785, 792 (8th Cir. 2005). Plaintiff’s medical records contain statements by her that
she has suffered with asthma her entire life; she has suffered with depression her entire life; she
suffered with knee pain for years.
The duration, frequency and intensity of symptoms also supports the ALJ’s findings. A
disability determinations counselor observed that plaintiff had no difficulty understanding,
concentrating, talking, answering, sitting, standing, walking, or coherency. In a function
report, plaintiff said that if spoken instructions are plain and simple she can follow them
without redirection, which is consistent with the ALJ’s residual functional capacity assessment.
On April 27, 2009, plaintiff described her pain a 7 out of 10 in severity, yet she was prescribed
no pain medication on that visit. Instead she was told to diet and exercise. on March 16, 2010,
plaintiff was in the emergency room and denied back pain, denied difficulty walking. On
another occasion, Milton Levin, M.D., noted that plaintiff’s gait was normal. Joseph Noland,
M.D., noted that plaintiff’s gait was normal, stable, and non-antalgic. Tammy Sheehan, Ph.D.,
observed that plaintiff’s gait was normal. This is inconsistent with plaintiff’s hearing testimony
during which she described frequent falls.
Precipitating and aggravating factors are in large part unrelated to plaintiff’s
impairments. Dr. True noted that plaintiff was looking for a job but was unable to find one

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because jobs were “tight now.” In addition, she was in a relationship with a man who expected
her to work and take care of things around the house without any help from him. On February
9, 2010, plaintiff complained that she could not sleep but she had not been taking the sleeping
medication that had been prescribed. On May 7, 2010, she complained that she was not
sleeping because she was under too much stress due to being in a relationship that had spun out
of control and having too many bills with not enough money. On February 3, 2012, she
complained of not being able to sleep due to her constant worry about being in a bad
relationship. On March 16, 2010, she suffered an exacerbation of her asthma due to acute
bronchitis. On July 9, 2010, she had an exacerbation of asthma due to not taking her Albuterol.
On December 2, 2011, her asthma was exacerbated due to acute bronchitis. On August 9,
2011, she had elevated blood pressure due to being out of her medications for the last week.
The record establishes that plaintiff’s medications were kept fairly consistent, and she
had no side effects from her medication. Plaintiff testified that she cannot work due to
symptoms caused by her medications. However, no adverse effects from medication were
reported anywhere in the medical records. In fact, plaintiff specifically denied medication side
effects on February 9, 2010; August 9, 2010; and February 3 2012. On October 22, 2012, she
is quoted as saying, “I think those medicines are really helping me. . . . I am feeling so much
better. I don’t feel like I’m ready to fight or ready to break into tears. I feel good.”
No doctor ever put any functional restrictions on plaintiff. Plaintiff testified that her
doctor advised her to elevate her leg when sitting; however, the medical records do not reflect
this and show very conservative treatment for her knee. Furthermore, there are multiple
references in the record to recommendations that plaintiff exercise.
In addition to the factors discussed above, I note that in a function report plaintiff said
she completed 12th grade in 1980 but has no specialized job training, trade school or

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vocational school. She testified at the hearing that she did not graduate from high school or get
a GED but she lied on her application for business school and completed a medical secretary
program in 1982.
Plaintiff testified that she falls, and that she last fell a week before the hearing, which
would have been approximately February 1, 2012. She saw Dr. True on February 3, 2012, but
did not report having fallen. Her next medical appointment was on March 30, 2012, with Dr.
Latimer, and she did not indicate she had ever fallen.
Plaintiff testified that she does not use public transportation because she does not feel
safe; however, she told Dr. Sheehan that she does not use public transportation because it is not
convenient.
Based on all of the above, I find that the substantial evidence in the record as a whole
supports the ALJ’s decision regarding plaintiff’s credibility.

VII.

RESIDUAL FUNCTIONAL CAPACITY ASSESSMENT
Plaintiff argues that the ALJ erred in assessing plaintiff’s residual functional capacity

because he improperly gave more weight to a non-examining mental health professional than a
non-treating examining mental health professional.
A claimant’s residual functional capacity is the most he can do despite the combined
effect of his credible limitations. 20 C.F.R. §§ 404.1545 and 416.945. The claimant bears the
burden of proving his residual functional capacity, and it is the ALJ’s responsibility to determine
the residual functional capacity based on all of the relevant evidence in the record, including
medical opinions and the claimant’s credible statements about his limitations. Harris v.
Barnhart, 356 F.3d 926, 930 (8th Cir. 2004); McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir.
2000). The ALJ is required to determine which alleged symptoms are supported by medical
evidence in the record. 20 C.F.R. §§ 404.1529 and 416.929 (“In determining whether you are

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disabled, we consider all your symptoms, including pain, and the extent to which your
symptoms can reasonably be accepted as consistent with the objective medical evidence and
other evidence.”)
Plaintiff argues that the ALJ erred in giving greater weight to the opinion of Dr. Cowles,
who testified as an expert at the hearing but did not examine plaintiff, than to the opinion of
Dr. Sheehan, who examined plaintiff on one occasion in connection with her disability case.
According to the testimony of the vocational expert, the relevant portion of Dr. Sheehan’s
findings include the following limitations: a marked limitation in the ability to make judgments
on simple work-related decisions and in interacting appropriately with supervisors and
coworkers, and an extreme limitation in the ability to respond appropriately to usual work
situations and to changes in a routine work setting.
Dr. Sheehan saw plaintiff at 11:00 a.m. on the same day that she was examined by Dr.
Noland (an orthopedic doctor) at 9:00 a.m. Although Dr. Sheehan observed that plaintiff was
“quite tearful” during her mental evaluation, there was no observation of any tears during her
orthopedic evaluation shortly before. Additionally, Dr. Sheehan’s recommendations explicitly
rely on plaintiff’s allegations, which are not entirely credible. “Because of the claimant’s very
low tearful mood and reported irritability with occasional paranoia, her capacity to . . . adapt to
the environment is also very limited.” Plaintiff reported bouts of rage on a daily basis; however,
plaintiff never displayed rage to anyone while at any appointment during the four years
covered by the medical records. “Based on her low mood and reported irritability and
occasional paranoia, she would have a lot of difficulty interacting with others in a work
setting.” I note here that the ALJ did indeed limit plaintiff’s interaction with others in the
residual functional capacity assessment.

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In addition to relying in large part on plaintiff’s subjective reports, Dr. Sheehan’s
opinion is inconsistent with plaintiff’s treatment records. On August 9, 2011, plaintiff was seen
by Jennifer Santiago, a nurse practitioner, who observed that plaintiff was pleasant. On
November 5, 2012, Florence Oni, a nurse practitioner, observed that plaintiff’s appearance was
appropriate, attitude was agreeable, behavior was normal, cognitive function was intact,
perception was normal, insight was intact, judgment was intact, memory was intact, thought
content was logical and coherent, and mood was slightly depressed over a live-in male friend
not getting along with her son.
Dr. True, plaintiff’s treating psychiatrist, noted on October 16, 2008, that plaintiff was
only mildly anxious. On July 20, 2009, he observed that she was well groomed, pleasant, with
goal directed speech. She was euthymic and calm. On December 14, 2009, plaintiff reported
that she was awaiting her disability hearing, she said she was so anxious and depressed that she
cannot work. Dr. True noted only depression and anxiety in his assessment which mirrors
plaintiff’s subjective complaints. On January 21, 2010, Dr. True observed that plaintiff was
weeping, she admitted that she never got a degree and was too depressed to work. He observed
that she was depressed and anxious. On February 9, 2010, plaintiff said she was irritated,
depressed and anxious -- she had just learned her disability application had been denied by an
ALJ. On May 7, 2010, Dr. True noted no delusion, normal speech. He noted her to be
depressed and slightly anxious. On August 9, 2010, Dr. True observed that plaintiff was
friendly with goal-directed speech, a bright affect, she was properly groomed and “almost
euthymic.” On December 27, 2010, Dr. True observed that plaintiff was pleasant with a
depressed mood and avoidant style/affect.
On May 23, 2011, Dr. True noted that plaintiff was crying while talking about having
no money, living off her son, and having no car. This was the only time during 2011 that

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plaintiff sought treatment for her mental health.
On February 3, 2012, Dr. True observed that plaintiff was dressed appropriately, her
behavior was normal, her attitude was agreeable but negative, her affect was normal, her
speech was normal, her memory was intact, she was fully oriented. Her insight was impaired,
judgment poor, and her mood was depressed, frustrated and angry. Her administrative hearing
in this case was scheduled for five days later. Also on that February 3, 2012, appointment, Dr.
True assessed “anxiety state, unspecified,” but filled out a referral form for a social worker and
stated the reason as “severe neurotic anxiety,” which supports the opinion of Dr. Cowles during
the hearing that notations on medical records for insurance approval or other non-treatment
related reasons will sometimes be exaggerated.
Dr. Sheehan’s opinion is also inconsistent with the opinion of other medical
professionals who reviewed her records. Dr. Bucklew found mild difficulties in activities of
daily living; moderate difficulties in maintaining social functioning; and mild difficulties in
maintaining concentration, persistence or pace. “Based on the evidence as a whole, claimant
may have problems at times performing more demanding tasks, and she would be limited for
socially stressful or complex tasks, but she is otherwise able to remember, understand, and
complete instructions with usual supervision.” Dr. Cowles found that plaintiff should be limited
to simple or unskilled work only and she should have only minimal contact with the public and
coworkers.
Finally I note that plaintiff was not always compliant with medication and therapy.
When she took her medication as directed, she reported that she was sleeping well, she had
increased functionality, and she reported feeling “good.”
Based on all of the above, I find that the substantial evidence in the record as a whole
supports the ALJ’s residual functional capacity assessment.

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VIII.

CONCLUSIONS
Plaintiff’s final argument, that the ALJ relied on in improper hypothetical, is without

merit as it relies on the above arguments.
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
August 14, 2014

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