Suter v. Colvin
ORDER. The Commissioner's decision is affirmed. Signed on 4/25/17 by District Judge Nanette K. Laughrey. (Matthes Mitra, Renea)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MISSOURI
DANIELLE M. SUTER,
NANCY A. BERRYHILL,
of Social Security,
Case No. 4:16-cv-00457-NKL
Plaintiff Danielle M. Suter appeals the Commissioner of Social Security’s final decision
denying her application for disability insurance benefits and supplemental security income under
Titles II and XVI of the Social Security Act. The decision is affirmed.
Suter was born in 1978 and alleges a disability onset date of 10/10/2011. Her date last
insured was 6/30/2015. The Administrative Law Judge denied her application on 3/8/2013 and
the Appeals Council denied her request for review on 1/4/2016. 1 In this appeal, Suter challenges
the weight the ALJ gave certain opinion evidence, and the ALJ’s assessment of the effect of her
obesity and of her credibility.
Suter also challenges the ALJ’s findings at Step 5 of the
This is Suter’s second appeal of the denial of benefits. In her first appeal, this
Court granted the Commissioner’s unopposed motion to reverse and remand for further
proceedings. See Suter v. Colvin, case no. 04:14-cv-00383-NKL (Order dated 11/19/2014). As
directed on remand by the Appeals Council, the ALJ treated Suter’s psychologist, Nina
Epperson, M.S., as an acceptable medical source, and included limitations in the RFC related to a
severe impairment, asthma.
In October 2011, Suter complained to her primary care provider of fatigue and all-over
body pain. Labs were negative for autoimmune diseases but reflected high C-reactive protein
levels. She was prescribed asthma medication. At a November 2011 visit, she complained of
low back pain and muscle aches and said she was concerned that she had lupus. Her doctor
assessed myalgia and referred her for rheumatology and neurology consults. At a December
2011 visit, she complained of trouble walking and shortness of breath. Labs reflected high Creactive protein levels. An echocardiogram was normal. Tr. 317-18. Suter’s C-reactive protein
was high in January 2012.
Suter saw Shannon Kohake, M.D., a neurologist later February 2012. Suter complained
of weakness, muscle spasms and pain, and poor concentration and memory loss. Under Plan,
Dr. Kohake noted, “Overall, the patient's exam was unremarkable except for some pain
limitation in muscle strength testing of the right hip flexor related to obvious pain in the region.”
Tr. 297. The doctor recommended MRIs of the brain given Suter’s complaints of memory
difficulties and word-finding, and of the cervical and lumbar spine, due to complaints of muscle
weakness, spasms, and gait disturbance. The doctor also recommended a nerve conduction study
and some labs.
Suter had the nerve conduction study (of all limbs) the day after she saw Dr. Kohake.
Steven Koss, M.D., a neurologist, concluded that the findings were all normal except for “mild”
findings at the right wrist consistent with the clinical diagnosis of carpal tunnel syndrome.
“There [was] no evidence of other mononeuropathies, large fiber peripheral neuropathy,
lumbosacral/cervical neuropathy, or myopathy.” Tr. 292. The MRIs of Suter’s brain, cervical
spine and lumbar spine were normal, except for a finding of some degenerative changes in the
apophyseal joints at L4-L5 and L5-S1.
In March 2012, Suter had her first visit with a rheumatologist, Arnold Katz, M.D. She
told the doctor that she had had pain in her hips, legs, chest, and heart area since October 2011,
was nauseated and spent a lot of time in bed. She was concerned that she might have lupus or
multiple sclerosis. Dr. Katz noted that Suter had had negative autoimmune testing, and an MRI
of her brain and extensive neurological work up were normal, and that her neurologist did not
feel her symptoms were related to a neurological disorder. Dr. Katz also noted Suter’s diagnosis
of fibromyalgia, Suter’s complaint that she sometimes could not move her right leg because it
felt “paralyzed” and her normal lumbar MRI. Tr. 304. After examining Suter, Dr. Katz’s
assessment was active fibromyalgia, fatigue, persistent nausea, obesity, hematuria, asthma,
insulin-dependent diabetes, rosacea, and depression. The doctor explained to Suter that she had
classic signs and symptoms of fibromyalgia. Based on her negative autoimmune bloodwork and
in the “absence of hard features suggesting lupus,” he did not believe she had lupus or “any other
classic connective tissue disease.” Tr. 308. He also noted that “[t]here are multiple reasons for
an elevated C-reactive protein [level], and [Suter’s] elevations [were] not particularly high,” so
he did not feel they were “representative of any underlying connective tissue disease.” Id. He
ordered lab tests and a chest x-ray, and started a trial of gabapentin for pain.
Suter saw Melissa Rosso, M.D., a primary care provider, in May 2012, reporting “a
myriad physical complaints.” Tr. 358. On exam, Dr. Rosso noted memory recall of two out of
three words, decreased temperature sensation in Suter’s previously injured ankle, proximal
weakness greater than distal weakness in the limbs, and some reduction in flexion and extension
of the joints bilaterally. The doctor also noted a rash on Suter’s face in a butterfly-shaped
distribution. Tr. 359. Dr. Rosso’s Assessment was chronic pain.
She noted that Suter’s
symptoms were not entirely consistent with fibromyalgia and that she suspected an autoimmune
disorder. Under Plan, Dr. Rosso noted that Suter should continue gabapentin and NSAIDs, and
would be referred to KU to establish care in the Family Medicine Clinic, and then obtain a
rheumatology consult at KU.
In July 2012, Suter saw Elizabeth Gerstner, M.D., a primary care physician, to reestablish
care. Dr. Gerstner noted no abnormalities on physical exam. Suter was interested in medical
marijuana for her fibromyalgia. The doctor declined to prescribe it because it was not a typical
treatment, and recommended that Suter continue her current medication. The doctor noted that
Suter had failed trials of antidepressants in the past and recommended that Suter consider a
Suter had a follow-up appointment on 7/25/2012 with Dr. Kohake, the neurologist, for
muscle pain and myalgias. The doctor noted that Suter’s MRI results were largely normal and
her rheumatology work up was negative. Suter said her concentration was a bit worse and that
she had difficulty with sleep, which she related to Dr. Katz’s prescription of gabapentin for pain.
Physical exam was normal except that the doctor could not obtain reflexes in the lower
extremities and there was some give-way weakness. Also, Suter gave poor effort on the motor
exam. Dr. Kohake’s Assessment was subjective muscle weakness, myalgias, muscle spasms,
gait disturbance, and memory difficulty. Under Plan, Dr. Kohake noted that the etiology of
Suter’s symptoms was unclear, “however, we have not found a neurologic cause.” Tr. 364. The
doctor discussed neuropsychological testing for Suter’s memory complaints and suggested that
she check with her insurance. The doctor also discussed different medication options for Suter’s
pain, but Suter was reluctant to try new ones because of past adverse effects on her mood.
Finally, Dr. Kohake recommended therapy for treatment of Suter’s depression.
In September 2012, Suter saw a rheumatologist, Celso Raul Velazquez, M.D., on referral
from Dr. Spurlock. Suter told him that she had severe pain and achiness in her thighs and calves
when she walked, and she could not use stairs; had severe, daily low back pain; and had tingling
and weakness in her hands and feet, and weakness in her shoulders. The doctor noted on
physical exam that Suter had decreased strength, but her “effort [was] inconsistent” and she had
multiple fibromyalgia tender points. Tr. 383. Her joints were cool with normal range of motion
and no swelling. Dr. Velazquez’s Assessment included myalgias, polyarthralgias, “multiple
symptoms that I cannot explain,” and “[s]ome … symptoms suggest[ing] fibromyalgia[.]” Id.
He further noted, “I do not think she has lupus or another autoimmune rheumatic disease because
she has no skin, joint, kidney or hematological abnormality to support this diagnosis.” Id. He
recommended “a second opinion from another neurologist.” Id.
In October 2012, Suter saw a gastroenterologist, Gregory Barber, M.D. with complaints
of bloating and diarrhea.
The doctor’s Impression was gastroesophageal reflux disease,
abdominal bloating, and diarrhea. He prescribed Levbid and Zantac. A gastric emptying study
Suter had a hysterectomy in December 2012.
On 3/6/2013, Suter saw Yvonne Spurlock, D.O., a primary care physician. Suter said she
thought she had lupus and wanted Dr. Spurlock to diagnose her with and treat her for it.
Dr. Spurlock said she would order labs, but was not comfortable making the diagnosis. The
doctor also explained that the treatment had serious side effects. She recommended that Suter
pursue a support group or another opinion from another specialist.
Suter saw Dr. Spurlock again on 3/20/2013. Suter complained of a lot of all-over pain,
and said she was very depressed and had been “suicidal a couple of days ago,” but was not
currently. Tr. 986. She said she had not seen a psychiatrist in some time but needed to, to
document that she had tried multiple antidepressants since childhood and that they did not work.
Dr. Spurlock said she would arrange for a psychiatric evaluation and provided Suter with
On 3/27/2013, Suter was seen at the MU Center for Rheumatology by C. Siva, M.D., for
a “4th opinion on fibromyalgia vs lupus diagnosis.” Tr. 889. Her chief complaint was “extreme
pain everywhere[.]” Id. Dr. Siva reviewed Suter’s medical records and test results. He noted
facial flushing and diffuse allodynia and myofascial tenderness on physical exam.
Assessment and Plan, he stated that he had reassured Suter there was “no objective evidence for”
rheumatoid arthritis or lupus, and that the non-specific anti-inflammatory markers could be due
to other medical conditions such as obesity and diabetes. Tr. 891. He suggested she try
increasing her clonazepam dosage for pain, but she said it would be too sedating and asked about
Vicodin. Dr. Siva suggested she talk to her primary care provider about Vicodin. He noted that
she had a pending appointment with a psychiatrist and suggested she try different medications
while under his supervision. He also gave her materials about self-management of chronic,
widespread pain. Id.
In July 2013, Suter saw Dr. Spurlock with complaints of pain. The only finding on
physical exam was mild swelling in the legs. Dr. Spurlock’s Assessment was chronic pain,
chronic diarrhea, chronic nausea, uncontrolled diabetes mellitus, fibromyalgia, and depression
and anxiety. Under Plan, the doctor noted that Suter would continue to see her psychologist.
The doctor also recommended “possibl[e] shock therapy.”
Suter said that her
psychologist said it was “not appropriate for” her. Id. Suter did not want to try any medications
such as Neurontin or antidepressants due to past reactions. Dr. Spurlock ordered labs.
Suter returned to Dr. Barber, the gastroenterologist, in August 2013.
suspected inflammatory bowel disease. The results of an esophagogastroduodenoscopy and a
colonoscopy were normal.
In September 2013, Suter returned to Dr. Katz, the rheumatologist, with complaints of
pain and low-grade fever. He noted no edema in the extremities and that Suter’s “last [complete
blood count] was fine.” Tr. 950. Her temperature was normal. Dr. Katz’s Assessment was
fibromyalgia, resistant to usual treatments; unexplained low grade fever; insomnia; fatigue; and
depression. Under Plan, he noted that he would obtain an infectious disease consultation and
pain management evaluation, and prescribed Dolobid for pain.
Later the same month, Suter saw Dan Hancock, M.D. at the Centerpoint Medical Center
pain clinic. Under History, Dr. Hancock noted that Suter:
[P]resents with a complex and convoluted past medical history.
She presents with the dreaded complaint of “constant pain all over
my body.” She states that since she was diagnosed with
fibromyalgia in 2003, she has had “head to toe pain which feels as
though I am being crushed all over my body.”
Tr. 931. Findings on physical exam were all normal, except that Suter identified tenderness at
18 of the 18 tender points designated by the American Rheumatological Association, including
multiple soft tissue locations. The doctor noted that in filling out the intake questionnaire, Suter
had marked 16 of the 17 pain descriptors. He noted that individuals who select more than 7
descriptors are those “who tend to over-magnify and are prone to somatoform disorders.”
Tr. 933. Dr. Hancock further wrote:
Note should also be made that although this patient does express a
certain degree of frustration about the inability of medical
personnel to identify the cause of her painful symptoms, the more
she discusses her underlying symptoms, the more she appears to
obtain some sense of enjoyment or pleasure that she has been able
to “stump” as many physicians as she has, because she states that
none of the doctors that she has seen have been able to provide her
with any answers as to why she has experienced these painful
Dr. Hancock’s Impressions included “chronic pain syndrome, etiology undetermined,”
morbid obesity, “fibromyalgia-type symptoms,” clinical depression, obsessive/compulsive
disorder, right carpal tunnel syndrome, and GERD. Id. Under Plan, the doctor stated that he had
had a long discussion with Suter and her mother, and informed them that he had “nothing to
offer…for the treatment of” Suter’s “chronic pain syndrome.” Id. He told them that Suter’s
complaint of pain “over every square inch of her body” was not amenable to any type of
interventional therapy. Id. He considered that she had tried “the gamut” of multiple
antidepressants, anti-inflammatory, and anti-neuropathic pain medications and that she had stated
she was intolerant of all of them. He did not recommend opioids. He did recommend cognitive
behavioral therapy, which in his opinion “offered the greatest likelihood of success in treating
[her] underlying condition.” Tr. 934.
Suter saw Daniel Geha, M.D., in October 2013 for an infectious disease consultation, and
with complaints of a 10-day, low-grade fever and pain.
Her temperature was 98.8° F.
Dr. Geha’s Assessment was unspecified myalgia and myositis; malaise and fatigue; fever,
unspecified; and insomnia, unspecified.
He also noted chronic fatigue with
fibromyalgia, “[n]o other etiology established at this time[,]” and recommended “continued
symptomatic treatment with regular medical follow up.” Id.
At a follow up in January 2014 with Dr. Katz, the rheumatologist, Suter reported that the
pain management doctor, Dr. Hancock, “did not believe in fibromyalgia,” and that the infectious
disease specialist, Dr. Geha, “felt that her fever was ‘fibromyalgia-related.’” Tr. 952. Dr. Katz
noted that Suter had 16 out of 18 classic fibromyalgia tender points on exam and an
erythematous blush on both cheeks. His assessment was fibromyalgia, active; insomnia; chronic
fatigue; chronic headaches; right plantar fasciitis; and IBS.
He increased her clonazepam
dosage, discontinued diclofenac and started ketoprofen. He also ordered an x-ray of her foot.
Suter saw Casey Williams, M.D. in March 2014 for left shoulder pain.
decreased range of motion and crepitus. The doctor ordered an MRI and physical therapy. The
MRI showed mild acromioclavicular, degenerative changes.
At an April 2014 follow up with Dr. Katz, Suter complained of low energy and that she
could not sit or stand for prolonged periods. She had tenderness in both shoulders and 18 out of
18 fibromyalgia tender points. The doctor prescribed lorazepam and Robaxin. Tr. 956.
In June 2014, Suter saw Dr. Spurlock with complaints of insomnia.
prescribed a trial of Lunesta.
At a July 2014 visit with Dr. Katz, Suter had 15 out of 18 fibromyalgia tender points. The
doctor noted “no acute joints.” Tr. 1108. He increased Suter’s Trazodone for sleep and continued
Robaxin, and told her to come back in three months.
In October 2014, Dr. Katz increased Suter’s Trazodone dosage. At a January 2015 visit
with Dr. Katz, Suter was sitting in a wheelchair. She complained of fevers. Her temperature
was 97.16° F. Dr. Katz noted that she seemed to be weak getting up from the chair, and reported
18 of 18 fibromyalgia tender points. She had fine resting tremors in both hands. The doctor
stopped the Robaxin and started a trial of Tizanidine as needed, and continued her other
In April 2015, Suter reported sleeping well on Trazadone but hurting badly. She had 16
out of 18 tender points and a resting tremor. The Tizanidine was increased.
In May 2015, Suter was seen by Gregory Ballard, M.D. for right knee pain. Injections
were tried, but did not help. Her gait was antalgic and she reported that she had pain with
prolonged standing, walking, and climbing stairs. Later the same month, Suter had arthroscopic
surgery on the knee to repair a meniscal tear.
Psychological and psychiatric treatment
In June 2014, Suter went through the intake process for receiving mental health treatment
through Tri-County Mental Health Services. She began seeing Sue Southworth, Psy.D., for
counseling later the same month.
In July 2014, Suter had a psychiatric evaluation by Partmal Purohit, M.D. at
Southworth’s request. Suter told the doctor that she was not interested in any medication. She
said her primary care physician had been working with her regarding her fibromyalgia and
“suspected lupus.” Tr. 1161. She reported that “for [the] last several months” she had had an
“increasing tired feeling, low motivation, less sleep, low energy and interest and having
increasing fibromyalgia symptoms.” Id. Under Mental Status Exam, Dr. Purohit noted that
[A]rgumentative and resistive and trying to prove point that antidepression medication is not necessary, mood irritable with
appropriate affect, denies any suicidal or homicidal ideations or
any overt psychotic symptoms. Patient is alert, oriented x3, shortterm one out of 3 things after 5 minutes and remote memory
appears sketchy but some appears to be deliberate, concentration
fair to poor, approximate answer on serial 7, average intelligence,
abstract thinking intact, fair to poor insight and judgment.
Dr. Purohit diagnosed PTSD; rule-out bipolar mood disorder type II mixed;
intermittent explosive disorder; and borderline personality disorder. Under Plan, the doctor’s
recommendations included individual therapy and weekly journaling to monitor the progress of
He discussed also mood stabilizing medications with Suter, including lithium,
Depakote ER, Tegretol, Trileptal, and Topamax, as well as “atypicals” such as Geodon, Seroquel
XR, Abilify, and Latuda. Id. She did not want take any medications at that time and said she
would like to review effects and side effects profile, and discuss them with him at a follow up
In total, Suter saw Southworth for a total of 19 visits, through June 2015. She reported
that her sessions were “very helpful” (7/9/2014). She “believe[d] that her anxiety and depression
are related to past trauma” and was “pleased with her progress on parenting” (9/22/2014). She
“[felt] much less anxious” (10/8/2014). She was “feeling less anxiety and depression”
(10/22/2014). She was “sad and anxious about” her son graduating and moving away
(12/18/2014). She “was feeling more confident and having a successful relationship with her
boyfriend” and was “using her coping skills well” (3/3/215). She was experiencing “some
anxiety about her upcoming wedding” (3/26/2015). She was feeling a “high level of stress due
to her wedding coming up” and having communication problems with her mother (4/8/2015).
She was experiencing “a lot of stress due to [her] relatives and wedding” (4/22/2015). She got
married and the wedding “was a high stress situation, but the tools she learned in therapy were
helpful” and she was “very proud of herself” (5/20/2015). She was “distraught and anxious”
after she and her husband were kicked out of his mother’s house where they had been living
(6/17/2015). Tr. 11554-59.
Deborah Doxsee, Psy.D., non-examining, non-treating State agency psychologist,
prepared a Psychiatric Review Technique Form on 1/18/12. Dr. Doxsee opined that Suter did
not have a medically determinable mental impairment. Tr. 273. The ALJ gave Dr. Doxsee’s
opinion “little” weight because the record as a whole establishes that Suter has mental
impairments. Tr. 450.
Teresa Short, RNBC, FNP, filled out a Physician’s Residual Functional Capacity Form 9
on 9/25/12. Tr. 348-351. She opined that Suter could lift or carry less than 10 pounds; sit, stand,
or walk less than 1 hour at a time; would need to lie down and elevate her feet for more than 4
hours; cannot use her hands repetitively for grasping, fine manipulation; and cannot perform jobs
requiring bilateral manual dexterity; should never squat, crawl, kneel, climb, or reach; can
occasionally bend, stoop, crouch, and maintain balance; cannot be around unprotected heights or
moving machinery; and cannot be exposed to marked changes in temperature and humidity, or
dust and fumes. Short noted that she believed Suter’s pain reports, based on her flat affect and
pain with movement. Short opined that Suter’s pain was debilitating and fatigue was frequently
debilitating. Short opined that Suter has sensory problems including double vision, eye focusing
problems, dizziness, problems hearing, lethargy, difficulty speaking, poor coordination, lack of
alertness, and numbness and decreased sensation in the extremities. Short opined that Suter has
mental problems of depression, irritability, social isolation, short attention span, and memory
problems, was unable to focus and concentrate, and her medication had side effects of agitation,
paranoia, mood swings, and rages. Short opined that Suter had poor or no ability to deal with
even a low stress job. She anticipated that Suter’s impairments or treatment would cause her to
miss work three or more times per month. Where asked on the form to identify supporting
clinical and lab findings, Short stated only, “will defer to the rheumatologist[.]” Tr. 351. The
ALJ gave Short’s opinion “little” weight because it imposed extreme functional limitations
without discussion of clinical findings, Short merely deferred to a rheumatologist for possible
findings, and Short was not an acceptable medical source. Tr. 449.
Nina Epperson, M.S., licensed psychologist, performed a consultative exam on 9/21/12.
Tr. 385-388. Suter’s chief complaints were depression and anxiety. She reported that she had
never had psychiatric inpatient treatment, and had tried antidepressants and other psychotropics
but could not tolerate them. She said her legs did not work because of her fibromyalgia and that
she had problems with short term memory. She endorsed symptoms of anhedonia and avolition.
Epperson noted depressed mood; bland affect; decreased motor functioning; thought content
focused on helplessness, hopelessness, worthlessness; and that Suter “appeared dramatic” and
was “very somatic.” Tr. 386. Testing showed no problems with immediate or long term
memory, attention or concentration, judgment, or abstract reasoning ability.
Diagnoses were major depressive disorder, recurrent-moderate, rule out somatization disorder;
personality disorder, not otherwise specified; and GAF of 52. Epperson opined that Suter has a
mental illness which precludes her from engaging in employment suitable for her age, training,
experience, or education for a period of 6-12 months. Tr. 388.
Epperson reevaluated Suter on 4/11/14. Tr. 959-962. Suter’s chief complaints were
depression and anxiety. She said she worried “excessively about various life events” and had
“significant distress due to her health conditions.” Tr. 959. She told Epperson that she was
prescribed “Lantus, Benadryl, Nexium, Novalog, Singulair, Tylenol, Vitamin D3 and Zyrtec,”
and said she could not tolerate any type of SSRI or Neurontin because they “cause her to
experience paranoia and rage.” Tr. 959. Epperson noted that Suter had good hygiene and
grooming and her nails were nicely painted; had depressed mood; had appropriate affect; had
intact judgment and insight; was fully oriented; had poor attention and concentration; was
focused on somatic themes; and had organized and goal-directed flow of thought. Suter showed
no problems with immediate memory, but did with recent and long-term memory. Epperson’s
Diagnoses were major depressive disorder, recurrent-moderate; rule out somatization disorder;
rule out post-traumatic stress disorder; borderline personality traits; and GAF 51. Epperson
opined that Suter has a mental illness which prevents her from being suitably employed and
would last 13 months or longer. The ALJ did not give Epperson’s opinions any weight, noting
that they were not supported by her own exam findings or the medical evidence on the whole
record, and that they went to the ultimate issue of disability. Tr. 449.
Samuel Landau, M.D., a non-examining expert, testified at the hearing in Suter’s original
appeal. Tr. 53-55. He opined Suter could stand or walk for 2 hours but only 15-30 minutes at a
time; should avoid uneven surfaces; should be given the option of elevating her feet six inches
above floor level as needed, and standing and stretching every hour for 1-3 minutes. Lifting and
carrying were limited to 20 pounds occasionally and 10 pounds frequently. He opined that she
can occasionally stoop, bend, and climb stairs; could not squat, kneel, crawl, run, or jump, climb
ladders, work at heights, or balance; on the right, she is limited to no forceful gripping, grasping,
or twisting but can do frequent fine manipulation such as keyboarding and frequent gross
manipulation such as opening drawers and carrying files. He further opined that her nausea,
dyspepsia, and heartburn are consistent with IBS and fibromyalgia. The ALJ gave Dr. Landau’s
opinions “partial” weight, because the record as a whole supports greater lifting limitations, and
no manipulative limitation. Tr. 450.
Marc Maddox, Psy. D., a non-examining, non-treating State agency psychologist,
prepared a Psychiatric Review Technique Form on 7/29/14. Tr. 521-533. He opined that Suter
had moderate limitations in understanding and remembering detailed instructions, but was not
significantly limited in understanding and remembering simple instructions, or locations and
work procedures. He opined that Suter could carry out very short and simple instructions,
perform activities on a schedule, sustain an ordinary routine without special supervision, work
around others without distraction, interact adequately with peers and supervisors, and make
simple work-related decisions, but was moderately limited in the ability to carry out detailed
instructions, or maintain concentration for extended periods. She had moderate limitations in
social interactions. She could adapt to most common challenges in the workplace. Dr. Maddox
extensively cited the medical records, noting negative exam findings, sporadic mental health
treatment, evidence of symptom magnification, and no psychiatric hospitalizations. The ALJ did
not explicitly refer to Dr. Maddox’s opinion.
Suter’s function report and the hearing testimony
In her adult function report dated June 2014, Suter stated that she had extreme
fibromyalgia. She reported daily, extreme pain, weakness, and swelling in her extremities, and
said that on the pain scale of 1 to 10, child birth had been a level 4, compared to the average
level 8-10 pain that she experiences every day. She said she has had memory problems since
2008 after she had a concussion and they have worsened since then, and she cannot remember
“simple instructions or questions at all.” Tr. 754. She is “never completely strong enough
emotionally or physically to do ‘fun’ things.” Id. She “forget[s] how to say words, spell and
sometimes even how to speak.” Tr. 756. She also reported insomnia “that appears to be
untreatable.” Tr. 747. She stated that her rheumatologist had prescribed Trazadone for insomnia
but she had had a severe reaction to it and was told she would not go back on it again.
At the hearing of July 2015, Suter testified that she did customer service and call-center
work from 2007 until 2011, going from full-time to part-time, and then quitting because of
swelling and pain, and memory problems. Currently, she said, she spends most of her time in
bed due to swelling and pain. She can’t hold things like a book because of hand pain. Because
of hand tremors, she doesn’t use forks or knives, and her “food gets flung around a lot.” Tr. 484.
She testified that a side effect of her prescriptions is extreme drowsiness: “They knock me out
for many hours. Like, anywhere from 12 to 16 hours.” Tr. 485. She testified that she cannot
tolerate anti-depressants. She reported having “flares” of symptoms of joint pain and IBS lasting
“anywhere from a week to a couple of months.” Tr. 486.
The ALJ’s decision
The ALJ found that during the relevant period, Suter had severe impairments of obesity;
diabetes mellitus; asthma; fibromyalgia, also diagnosed as chronic pain of unknown etiology;
chronic fatigue; history of total hysterectomy for treatment of endometriosis; degenerative disc
disease of the lumbar spine; chondromalacia in the right knee; headaches; depressive disorder;
anxiety disorder; post-traumatic stress disorder; personality disorder; and rule-out diagnoses of
somatization disorder and bipolar disorder. Tr. 441. Suter did not claim to meet any Listings,
and the ALJ did not find that she met any.
The ALJ found Suter has the residual functional capacity to:
[L]ift and carry about 5 pounds frequently and 10 pounds
occasionally. In an 8-hour workday with normal breaks, she can
sit about 6 hours and stand and/or walk about 2 hours. She
requires the ability to change positions briefly (one minute or
less) every 30 minutes. She should never climb ladders, ropes
or scaffolds and never work at unprotected heights or around
dangerous machinery. She should not work around high
concentrations of dust, fumes, gases or similar pulmonary
irritants. She should never be required to kneel, crouch, crawl
or walk on uneven surfaces. She is limited to occasional
climbing of ramps or stairs, and to occasional bending and
stooping. She is limited to unskilled work involving only simple,
repetitive tasks that do not involve fast-paced activity or high
production quotas. She is limited to occasional interaction with
the public and co-workers.
Id. The ALJ concluded that Suter was capable of performing the requirements of representative
occupations such as document preparer, addressing clerk, and cutter/paster which are sedentary
jobs existing in significant numbers in the national economy. The ALJ concluded that Suter was
not disabled and benefits were denied.
Suter argues that reversal is necessary because the ALJ did not properly weigh the
opinion evidence, account for her obesity, or assess her credibility. She further argues that the
Commissioner failed to sustain her burden at Step 5 of the sequential analysis.
The Court’s review of the Commissioner’s decision is limited to a determination of
whether the decision is supported by substantial evidence on the record as a whole. Milam v.
Colvin, 794 F.3d 978, 983 (8th Cir. 2015). Substantial evidence is less than a preponderance but
enough that a reasonable mind might accept as adequate to support the Commissioner’s
conclusion. Id. The Court must consider evidence that both supports and detracts from the
Commissioner’s decision but cannot reverse the decision because substantial evidence also exists
in the record that would have supported a contrary outcome, or because the Court would have
decided the case differently. Andrews v. Colvin, 791 F.3d 923, 928 (8th Cir. 2015). If the Court
finds that the evidence supports two inconsistent positions and one of those positions represents
the Commissioner’s findings, then the Commissioner’s decision must be affirmed. Wright v.
Colvin, 789 F.3d 847, 852 (8th Cir. 2015).
The opinion evidence
Suter argues that the ALJ did not properly weigh the opinions of Dr. Landau, Teresa
Short, Dr. Maddox, and Nina Epperson.
The ALJ evaluated the opinion evidence under 20 C.F.R. §§ 404.1527 and 416.927. The
regulations provide that, in weighing medical opinion evidence, the Commissioner considers
whether there is an examining or treatment relationship; the length of the treatment relationship
and frequency of examinations; the nature and extent of the treatment relationship;
supportability; consistency; specialization; and other factors such as familiarity with the
disability programs and their evidentiary requirements. §§ 404.1527(c)(1)-(6) and 416.927(c)(1)(6). But an opinion that a claimant is disabled or unable to work, or about a claimant’s residual
functional capacity is not treated as a medical opinion because such issues are reserved to the
Commissioner. §§ 404.1527(d) and 416.927(d).
Suter argues that the ALJ merely picked and chose from Dr. Landau’s opinion.
Dr. Landau opined about Suter’s physical limitations, but the ALJ gave the opinion only
“partial” weight on the basis that the record as a whole supported greater lifting limitations than
those Dr. Landau identified and did not support the manipulative limitations he identified. Suter
also complains that in formulating the RFC, the ALJ did not incorporate other limitations that
Dr. Landau identified—standing or walking for a total of two hours, but only 15-30 minutes at a
time; the option of elevating Suter’s feet six inches above the floor; standing and stretching every
hour for one to three minutes; and no running, jumping, squatting, or balancing. But the ALJ is
not required to wholly adopt or reject any opinion. Myers v. Colvin, 721 F.3d 521, 527 (8th Cir.
2013); and Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011).
Furthermore, Dr. Suter never treated or examined Suter. Nor do Suter’s medical records
document manipulative difficulties, whether in exam notes or test results, nor even that Suter has
complained to her treatment providers about such issues. Similarly, the record does not reflect
that any treatment provider ever instructed Suter to limit her activities, or endorsed the standing,
walking, and other movement limitations that Dr. Landau identified. The record also reflects
that after Dr. Landau offered his opinion, Suter had surgery to address knee pain caused by a
meniscal tear. Substantial evidence on the whole record supports the ALJ’s decision to give
Dr. Landau’s opinion only partial weight.
Moreover, an ALJ is not required to provide a line-by-line discussion of how
inconsistencies or ambiguities in the record are resolved. See McVoy v. Astrue, 648 F.3d 605,
615 (8th Cir. 2011).
Nurse Short opined that Suter had extreme functional limitations. Contrary to
§§ 404.1527(c)(3) and 416.927(c)(3), Short did not provide support for her opinion. She did not
identify any medical conditions and the effects they had on Suter’s functional limitations, nor
any clinical or laboratory findings to support her opinion.
She simply “defer[red] to
rheumatology.” Tr. 351. Further, the record does not reflect that any treatment provider ever
instructed Suter to limit her activities or endorsed the extreme limitations that Short identified,
and Short’s opinions are even inconsistent with her treatment notes. The same day that Short
filled out the form, she examined Suter, noting largely normal findings, such as normal gait,
without focal weakness or deformity; normal sensation; full range of motion of the head and
neck, without tenderness or abnormal movements; and that Suter was alert and oriented with no
impairment of recent or remote memory. Tr. 391. §§ 404.1527(c)(4) and 416.927(c)(4); Lawson
v. Colvin, 807 F.3d 962, 967 (8th Cir. 2015) (in weighing “other source” opinion evidence, an
ALJ has the discretion to consider any inconsistencies found in the record).
Substantial evidence on the whole record supports the ALJ’s decision to give Nurse
Short’s opinion little weight.
Suter argues that the ALJ failed to consider the opinion of Dr. Maddox, the state agency
consultant who prepared a psychological review technique form. Although the ALJ did not
expressly mention Dr. Maddox in the opinion, the ALJ did state that he had considered the
opinions of state agency medical and psychological consultants pursuant to Social Security
Ruling 96-6p. Tr. 450. The SSR provides that findings made by state agency consultants must
be treated as expert opinion evidence of non-examining sources and may not be ignored, and
refers to the factors for evaluation of such evidence under §§ 404.1527 and 416.927, discussed
above. 1996 WL 374.180, at *1.
The ALJ’s RFC formulation is consistent with Dr. Maddox’s assessment, the SSR, and
the regulations. Dr. Maddox opined that Suter could carry out very short and simple instructions,
perform activities on a schedule, sustain an ordinary routine without special supervision, work
around others without distraction, interact adequately with peers and supervisors, make simple
work-related decisions, and could adapt to most common challenges in the workplace. She had
moderate limitations in understanding, remembering, and carrying out detailed instructions and
maintaining concentration for extended periods, and moderate limitations in social interactions.
Consistent with Dr. Maddox’s opinion, the RFC limits Suter to unskilled work involving only
simple, repetitive tasks without fast-paced activities or high production quotas, and only
occasional interaction with the public and coworkers. Dr. Maddox cited the medical records.
Any failure on the part of the ALJ to expressly mention Dr. Maddox’s opinion is at most a nonprejudicial defect in opinion-writing technique that does not merit reversal.
Sullivan, 956 F.2d 836, 841 (8th Cir. 1992) (an arguable deficiency in opinion-writing technique
is not grounds for reversal when that deficiency had no bearing on the outcome).
Nina Epperson was a non-treating psychologist who examined Suter in 2012 and 2014.
In 2012, Epperson offered the opinion that Suter has a mental illness which precludes her from
engaging in employment suitable for her age, training, experience, or education for a period of 612 months. In 2014, Epperson opined that Suter has a mental illness which prevents her from
being suitably employed and that would last at least 13 months. The ALJ did not expressly
assign a weight to either opinion, but did state that the 2014 opinion was not supported by
Epperson’s own exam findings or the medical evidence on the whole record, and went to the
ultimate issue of disability.
Suter argues that the failure to assign a weight to the opinions was “legal, reversible
error.” Doc. 12, p. 20. But the 2012 opinion states that the alleged disability would exist for no
more than 6-12 months, which is not a sufficient length of time to qualify for disability.
§§ 404.1527(a)(1) and 416.927(a)(1). While the ALJ did not expressly identify the weight given
the 2014 opinion, the ALJ did expressly identify reasons, provided under the regulations, for
discounting the opinion and the ALJ clearly did not it any significant weight. Even assuming it
was error not to assign specific weights to Epperson’s opinions, it was non-prejudicial error and
does not justify reversal. Robinson, 956 F.2d at 841.
Furthermore, the ALJ’s conclusions that Epperson’s opinions were not supported by her
own exam findings or by the medical evidence as a whole, and that they went to the ultimate
issue of disability which is an issue reserved for the Commissioner, are supported by substantial
evidence on the whole record. For example, although Epperson opined that Suter was entirely
disabled due to mental limitations, Epperson noted in 2014 that Suter had good hygiene and
grooming and her nails were nicely painted; had appropriate affect; had intact judgment and
insight; was fully oriented; had organized and goal-directed flow of thought; and showed no
problems with immediate memory.
Further, while Epperson noted problems with short and even long-term memory in April
2014, such findings were not entirely consistent with her findings in 2012, and they were
inconsistent with the findings of Dr. Purohit, the psychiatrist who examined Suter in July 2014
and who found that Suter’s sketchy memory appeared to be deliberate. Suter’s counseling
records from June 2014 through June 2015 also reflect that she experienced improvement in her
mental health symptoms and was even able to pursue a romantic relationship, ultimately getting
married in May 2015.
In short, Epperson’s conclusions were contradicted by her own
observations and with the evidence on the whole record.
Finally, Epperson in fact concluded that Suter could not work due to her mental health
condition. The regulations expressly provide that such a conclusion is not treated as a medical
opinion because it is on an ultimate issue reserved to the Commissioner. §§ 404.1527(d) and
Substantial evidence on the whole record supports the ALJ’s treatment of
Epperson’s opinions. See Mabry v. Colvin, 815 F.3d 386, 391 (8th Cir. 2016) (“The interpretation
of a physician’s findings is a factual matter left to the ALJ’s authority.”).
The ALJ identified obesity as a severe impairment at Step 2. The ALJ also stated that he
had reviewed the entire record. Tr. 404-41. He noted Suter’s height and weight, that she had
been diagnosed as morbidly obese, and that she had lost over 50 pounds since January 2015.
Tr. 447. The ALJ stated that obesity was considered in the exertional, postural, and
environmental limitations of the RFC assessment. Id.
Suter argues that reversal is required
because the ALJ failed to explain in detail how he factored in the effect of obesity on her RFC.
In Wright v. Colvin, 789 F.3d 847, 855 (8th Cir. 2015), the ALJ explicitly stated that he
had “considered the combined effects of the claimant's obesity with the claimant's other
impairments when determining that he retains the ability to perform a range of sedentary work
within the limitations identified.” Id. The claimant argued on appeal that the ALJ failed to take
her obesity into account in determining her RFC. But the Eighth Circuit held that when “the ALJ
references the claimant's obesity during the claim evaluation process, such review may be
sufficient to avoid reversal.” Id. (internal quotation and citations omitted). Because the ALJ had
considered the record as a whole, the Eighth Circuit held that reversal was not warranted. Id.
This case is similar to Wright. Here, the ALJ’s decision expressly stated that the ALJ had
reviewed the whole record, expressly referred to Suter’s obesity and classified it as a severe
impairment, and expressly stated that he had considered obesity’s effects on exertional, postural,
and environmental limitations in formulating the RFC. The limitations the ALJ described in
presenting the hypothetical to the vocational expert resulted in the identification of sedentary
jobs, that are not performed at a fast pace and do not require high-volume production, and that
avoid exposure to high concentrations of fumes, dust, gases or similar pulmonary irritants. The
jobs also account for exertional and postural limitations, including no climbing, no kneeling or
crawling, and no heights. The RFC is consistent with Suter’s impairment of obesity, based on
the whole record. Suter’s argument therefore fails for the same reason the argument failed in
In addition, Suter does not identify any limitation due to obesity that the RFC fails to
account for. It was Suter’s burden to establish RFC.
The credibility determination
Suter also argues that the RFC is unsupported by the ALJ’s determination that she was
not entirely credible. She says that the ALJ’s findings—that she had a poor work history, she
“only” had “two” surgeries, that there were multiple negative or mild findings on tests, and she
had not had mental health treatment for a period of time—are not good reasons, supported on the
whole record, for concluding that she lacked credibility. Doc. 12, pp. 23-25.
The ALJ’s conclusions are supported by substantial evidence on the whole record. Suter
had had no substantial gainful employment for several years prior to her alleged onset date.
Tr. 693-94. A poor work history is a factor that may considered in evaluating credibility, as it
suggests lack of motivation to work and calls a disability claim into question. Pearsall v.
Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001).
The ALJ did not minimize or overlook Suter’s history of four knee surgeries. The ALJ
noted that Suter had had “multiple” knee surgeries, the most recent one having been performed
two months before the second hearing. Tr. 445. Suter testified that it was too soon to assess the
results of that recent surgery. Tr. 474. But the ALJ accounted for her right knee impairment by
including exertional and postural limitations in the RFC. Suter does not identify any additional
limitations due to her surgeries that the RFC fails to account for.
Next, the record in fact contains numerous negative test results and documentation of
mild objective findings on exam over a period of years that fail to support Suter’s claims of
debilitating physical impairments. The record also contains numerous opinions from specialists
who were unable to identify an objective cause for her alleged impairments, and reflects that
various physicians recommended psychiatric treatment. The absence of objective findings, in the
context of the record as a whole, supports a conclusion that her symptoms are not as limiting as
she has alleged. Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir. 1997).
Suter did frequently identify numerous tender points consistent with fibromyalgia on
examination. However, Dr. Hancock, the pain specialist, noted that Suter’s intake questionnaire
was consistent with individuals who tend to magnify their symptoms and are prone to
somatoform disorders. He also noted that she seemed to obtain some sense of pleasure in
stumping as many physicians as she had. Dr. Kohake, a neurologist, noted that Suter gave poor
effort on exam. Dr. Velazquez, a rheumatologist, noted that Suter’s effort was inconsistent on
physical exam when testing her strength. Exaggerating one’s symptoms and giving less than full
effort on exam are factors that detract from a claimant’s credibility. Baker v. Barnhart, 457 F.3d
882, 892 (8th Cir. 2006).
The ALJ also considered Suter’s allegations regarding her mental health impairments.
As the ALJ noted, Suter went for long periods of time without mental health treatment. In
July 2012, Dr. Gerstner, a primary care physician, recommended a psychiatric consult. At a
separate visit the same month, Dr. Kohake, the neurologist, recommended counseling. Suter did
not follow up. Nor did she have any psychiatric admissions during the relevant period, even
though at a March 2013 visit with Dr. Spurlock, she reported having felt suicidal a few weeks
earlier. A failure to seek treatment weighs against a claimant’s credibility. Milam v. Colvin, 794
F.3d 978, 985 (8th Cir. 2015).
Suter also seemed to exaggerate her psychological symptoms to Dr. Purohit, the
psychiatrist who evaluated her in July 2014. The doctor noted that Suter’s remote memory
appeared sketchy, but also appeared to be deliberate. Baker, 457 F.3d at 892 (exaggerating one’s
symptoms detracts from credibility).
Furthermore, Suter’s symptoms improved with counseling, by her own report, and at
least some of her symptoms of anxiety and depression were attributed to situational factors.
Situational anxiety and depression are not considered disabling. Gates v. Astrue,627 F.3d 1080,
1082 (8th Cir. 2010); Dunahoo v. Apfel, 241 F.3d 1033, 1039-40 (8th Cir. 2001).
Suter’s testimony regarding her alleged physical and mental impairments was also
extreme. On a 10-level pain scale, she reported experiencing daily pain at level 8-10 on average
due to her alleged impairments, in contrast to the pain at level 4 that she experienced when
giving birth. The medical records do not document complaints of daily, maximum pain or nearmaximum pain, nor do the records reflect that Suter has ever gone to the emergency room for
treatment of such pain. She reported that her insomnia is untreatable, but Dr. Katz prescribed
medication for it and at subsequent visits, Suter told him it was helping. She stated that she is
not physically or emotionally strong enough to ever do fun things, but she was able to form a
relationship and then get married in May 2015. She said that she forgets how to say words, spell,
or speak, and can’t even hold a book due to hand pain. But she was able to prepare a lengthy,
typed adult function report in June 2014, including a detailed narrative of her alleged symptoms.
See Tr. 746-764. She testified that her pain medications caused her to sleep 12 to 16 hours a day,
but no such complaints are documented in her medical records. She stated that she does not hold
forks or knives, and her food is “flung around a lot” at mealtimes, due to hand tremors, but her
medical records reflect no more than fine resting tremor. A claimant’s subjective complaints
may be discounted if the evidence as whole is inconsistent with the claimant’s subjective
testimony. Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006).
Substantial evidence on the whole record supports the ALJ’s conclusions regarding
Findings at Step 5
Finally, Suter argues reversal is necessary because the Commissioner did not sustain her
burden at Step 5. Suter argues that the vocational expert’s testimony about one of the three jobs
identified, document preparer, was inconsistent with the Dictionary of Occupational Titles.
Specifically, she argues that her RFC is limited to repetitive work, but the document preparer job
as described in the DOT is not repetitive. Suter also argues that the vocational expert otherwise
failed to establish that the three jobs she identified exist in significant numbers in the national
economy, and the ALJ failed to make a finding about the number of jobs. Suter’s arguments do
not merit reversal.
The vocational expert, Stella Doring, testified that a hypothetical individual with Suter’s
RFC, including a limitation of repetitive work, could perform the jobs of document preparer,
addressing clerk, and cutter/paster. The ALJ asked Doring at the beginning of her examination
to identify anything about her testimony that departed or deviated from the Dictionary of
Occupational Titles, or its companion volume, The Selective Characteristics of Occupations,
which she agreed to do. Tr. 487. Doring did not point out any differences during her testimony.
See Tr. 487-494. Doring did testify that there were 175,000 document preparer jobs in the
national economy, 44,000 addressing clerk jobs, and 30,000 cutter/paster jobs. Tr. 490-91.
Assuming that the document preparer job is inconsistent with the DOT, as Suter argues,
the VE identified two other jobs. Suter suggests, however, that the VE’s inclusion of the
document preparer job shows the VE’s testimony was unreliable which the ALJ did not realize,
and that the error therefore cannot be considered harmless. But the Eighth Circuit has expressly
held that a VE’s “mistaken recommendation” can be harmless error where the VE has
recommended other work that a claimant can perform with her RFC. See Grable v. Colvin, 770
F.3d 1196, 1202 (8th Cir. 2014). Furthermore, nothing suggests that Doring failed to identify
another repetitive job, consistent with the DOT.
For example, the cutter/paster job (DOT
249.587.014) involves tearing or cutting marked items out of newspapers and magazines;
recording the name of the publication, page and location, date, and name of customer on the
label; and affixing a label to the clipping. In other words, it is repetitive. Moreover, nothing in
the record suggests that the ALJ would have decided differently had the ALJ realized the
addressing clerk job was not repetitive. See Byes v. Astrue, 687 F.3d 913, 917 (8th Cir. 2012)
(“To show an error was not harmless, [the claimant] must provide some indication that the ALJ
would have decided differently if the error had not occurred.”)
Finally, the VE expressly identified the number of jobs available in the national
economy, with respect to each of the three jobs identified, and the ALJ expressly cited that
evidence in the decision. Tr. 452. To the extent the ALJ failed to make an express “finding”
about the job numbers, it is at most a non-prejudicial error in opinion writing.
Suter’s argument concerning the Step 5 findings therefore fails.
The Commissioner’s decision is affirmed.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: April 25, 2017
Jefferson City, Missouri
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?