Paxson v. Astrue
ORDER denying plaintiff's motion for judgment and affirming the decision of the Commissioner. Signed on 8/19/13 by Magistrate Judge Robert E. Larsen. (Wilson, Carol)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
ST. JOSEPH DIVISION
MICHELLE MARIA PAXSON,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Michelle Paxson 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) failing to show a
nexus between the evidence and the residual functional capacity and failing to assess the
weight given to each medical opinion, and (2) conducting a faulty credibility analysis and
ignoring plaintiff’s alleged mental limitations and side effects from medication. 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.
On November 10, 2008, plaintiff applied for disability benefits alleging that she had
been disabled since February 1, 2008. Plaintiff’s disability stems from multiple sclerosis,
obesity, major depressive disorder, and panic disorder. Plaintiff’s application was denied
initially. On October 14, 2010, a hearing was held before an Administrative Law Judge. On
March 24, 2011, the ALJ found that plaintiff was not under a “disability” as defined in the Act.
On January 19, 2012, the Appeals Council denied plaintiff’s request for review. Therefore, the
decision of the ALJ stands as the final decision of the Commissioner.
STANDARD FOR JUDICIAL REVIEW
Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for judicial review of a “final
decision” of the Commissioner. The standard for judicial review by the federal district court is
whether the decision of the Commissioner was supported by substantial evidence. 42 U.S.C. §
405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Mittlestedt v. Apfel, 204 F.3d 847,
850-51 (8th Cir. 2000); Johnson v. Chater, 108 F.3d 178, 179 (8th Cir. 1997); Andler v.
Chater, 100 F.3d 1389, 1392 (8th Cir. 1996). The determination of whether the
Commissioner’s decision is supported by substantial evidence requires review of the entire
record, considering the evidence in support of and in opposition to the Commissioner’s
decision. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); Thomas v. Sullivan, 876
F.2d 666, 669 (8th Cir. 1989). “The Court must also take into consideration the weight of the
evidence in the record and apply a balancing test to evidence which is contradictory.”
Wilcutts v. Apfel, 143 F.3d 1134, 1136 (8th Cir. 1998) (citing Steadman v. Securities &
Exchange Commission, 450 U.S. 91, 99 (1981)).
Substantial evidence means “more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson
v. Perales, 402 U.S. at 401; Jernigan v. Sullivan, 948 F.2d 1070, 1073 n. 5 (8th Cir. 1991).
However, the substantial evidence standard presupposes a zone of choice within which the
decision makers can go either way, without interference by the courts. “[A]n administrative
decision is not subject to reversal merely because substantial evidence would have supported
an opposite decision.” Id.; Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988).
BURDEN OF PROOF AND SEQUENTIAL EVALUATION PROCESS
An individual claiming disability benefits has the burden of proving he is unable to
return to past relevant work by reason of a medically-determinable physical or mental
impairment which has lasted or can be expected to last for a continuous period of not less than
twelve months. 42 U.S.C. § 423(d)(1)(A). If the plaintiff establishes that he is unable to return
to past relevant work because of the disability, the burden of persuasion shifts to the
Commissioner to establish that there is some other type of substantial gainful activity in the
national economy that the plaintiff can perform. Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir.
2000); Brock v. Apfel, 118 F. Supp. 2d 974 (W.D. Mo. 2000).
The Social Security Administration has promulgated detailed regulations setting out a
sequential evaluation process to determine whether a claimant is disabled. These regulations
are codified at 20 C.F.R. §§ 404.1501, et seq. The five-step sequential evaluation process used
by the Commissioner is outlined in 20 C.F.R. § 404.1520 and is summarized as follows:
Is the claimant performing substantial gainful activity?
Yes = not disabled.
No = go to next step.
Does the claimant have a severe impairment or a combination of impairments
which significantly limits his ability to do basic work activities?
No = not disabled.
Yes = go to next step.
Does the impairment meet or equal a listed impairment in Appendix 1?
Yes = disabled.
No = go to next step.
Does the impairment prevent the claimant from doing past relevant work?
No = not disabled.
Yes = go to next step where burden shifts to Commissioner.
Does the impairment prevent the claimant from doing any other work?
Yes = disabled.
No = not disabled.
The record consists of the testimony of plaintiff and vocational expert Dr. Jerry
Beltramo, in addition to documentary evidence admitted at the hearing.
The record contains the following administrative reports:
Wiedmaier Truck Stop
Saxtons Nursing & Boarding Homes
Sparkle-Brite Cleaning Service
Saxtons Nursing & Boarding Homes
This is most likely a restaurant as the earnings include tips.
Aramark Food & Support Services
Beverly Manor, Inc.
R-J Foods, Inc.
Saxtons Nursing & Boarding Homes
Saxtons Nursing & Boarding Homes
Carlos O’Kelly’s Inc.3
Renal Management, Inc.
Carlos O’Kelly’s Inc.
Customers 1st, Inc.
Interfaith Community Services, Inc.
P&J Enterprises of St. Joseph
Bold Ventures, LLC
Kelly Services, Inc.
Senior Life, Inc.
Sodexo Management, Inc.
Staffing Center, Inc.
Sodexo Management, Inc.
Roger E. Vanover
Citadel Holdings, LLC
Papa Joe’s Restaurant
This is most likely a restaurant as the earnings include tips.
This is most likely a restaurant as the earnings include tips.
James P. Hawkins, Inc.
Sound Investment Corporation
DDS & I, Inc.
SDI of Frederick Street
James P. Hawkins, Inc.
Sound Investment Corporation
(Tr. at 185-192).
Disability Report - Field Office
In a face-to-face interview with plaintiff, C. Arnold observed that plaintiff had no
difficulty hearing, reading, breathing, understanding, coherency, concentrating, talking,
sitting, standing, walking, seeing, using her hands or writing (Tr. at 197). She did have
trouble answering questions -- “seemed kind of laid back, not very outgoing.” (Tr. at 197).
Disability Report - Adult
In an undated Disability Report, plaintiff said she has a medical assistance card (Tr. at
199-207). Plaintiff said she is unable to work because “My MS [multiple sclerosis] has gotten
really bad and it has made me really depressed and I am embarrassed to go out in public, and I
am in pain and have problems with balance.”
SUMMARY OF TESTIMONY
During the October 14, 2010, hearing, plaintiff testified; and Dr. Jerry Beltramo, a
vocational expert, testified at the request of the ALJ. During the hearing, the ALJ found that
This is most likely a restaurant as the earnings include tips.
plaintiff’s last insured date was June 30, 2008 (Tr. at 38). He also read into the record a notice
plaintiff had received from SSA: “The medical evidence shows additional information was
needed to evaluate the severity of your condition. We asked you to provide additional
information regarding your daily activities, but you failed to submit this report. Our efforts to
obtain your cooperation were unsuccessful. Therefore, benefits are denied.” (Tr. at 39).
At the time of the hearing plaintiff was 36 years of age (Tr. at 37). She has a GED (Tr.
at 37). She had just completed a semester of college at Missouri Western (Tr. at 37). She is left
handed, she is about 5’4” tall and weighs about 180 pounds, although she lost about 70
pounds over the last year and a half (Tr. at 37, 43-44). She believes her weight loss is due to
multiple sclerosis and depression (Tr. at 44). She goes two or three days without eating
anything, and then she binges (Tr. at 44). Plaintiff lives in St. Joseph with her two children (Tr.
at 36). She is not married, and she does not “have anybody.” (Tr. at 83). Plaintiff has no
income, but her son gets a “death benefit.” (Tr. at 42-43).
Plaintiff does not use a cane at this time, but in the past she did (Tr. at 44). Plaintiff was
diagnosed with multiple sclerosis in October 2007 (Tr. at 44). Plaintiff originally sought
medical attention because she lost the hearing in her right ear and then the left side of her face
and upper body was numb and tingly all the time (Tr. at 44-45, 78). Now plaintiff’s MS
causes her to have continued hearing loss in her right ear and constant numbness and tingling
on the left side of her face and upper body (Tr. at 45, 78). Plaintiff was able to hear the ALJ
during the hearing (Tr. at 79) and she does not use a hearing aid (Tr. at 79). Plaintiff still has
tingling in her face (Tr. at 79). She has pain in her neck and left shoulder area (Tr. at 45).
Plaintiff’s MS flares up about twice a month (Tr. at 73). During a flare-up the
numbness and tingling gets so intense that “it feels weird to take a shower.” (Tr. at 73). She
feels like needles are poking her everywhere (Tr. at 73). This only happens on her left side, not
her right side (Tr. at 73). Sometimes it goes from head to toe; but usually it is just the left side
of her head, her neck, and down through her arm (Tr. at 73-74). A flare-up lasts a couple of
days (Tr. at 74).
Plaintiff was asked how she functions the other approximately 28 days a month when
she is not having a flare-up (Tr. at 74). She said, “I’m not as good as I feel like I should be for
36.” (Tr. at 74). She still always has the numbness and tingling, just not as bad (Tr. at 74).
When asked if she is functional, plaintiff said, “Not really” (Tr. at 74). When asked to explain,
plaintiff said her sister still helps with housework and going to the grocery store (Tr. at 74-75).
Plaintiff sees a doctor twice a year for her MS (Tr. at 45-46). They just see how she is
doing because there is not a lot that can be done for her (Tr. at 46). She takes a daily injection
of Copaxone which is for the lesions on her brain -- it does not stop them but it controls them
and keeps them from getting worse (Tr. at 46, 75). The Copaxone causes plaintiff to suffer
pain, plum- to orange-sized knots at the injection site, fatigue and nausea (Tr. at 46). She gets
short of breath and has to lie down for about a half hour as soon as she administers the shot
(Tr. at 46). She began using the Copaxone about three years before the hearing (Tr. at 46).
The knots take a week or longer to resolve -- plaintiff gives herself the shot in a different place
every day (Tr. at 47).
After giving herself the shot, plaintiff’s pain is rated as an 8/10 (Tr. at 47). She was
asked whether the pain level goes down after that, and she said, “Not till it goes away.” (Tr. at
47). Plaintiff only takes over-the-counter pain medicine like Aleve (Tr. at 47). Plaintiff’s
doctor said she is too young to take medication (Tr. at 47-48). Her doctor recommended she
go to a pain center, but she has not done that (Tr. at 48). Plaintiff also takes Prednisone as
needed for the numbness and tingling “when it’s real bad” (Tr. at 48). The numbness and
tingling never goes away completely (Tr. at 49). She does not have any side effects from
Prednisone (Tr. at 48).
Things look bubbly or bouncy to her because of medication (Tr. at 48). Sometimes it is
like this for an entire day, sometimes it will not occur for two or three months (Tr. at 48-49).
On plaintiff’s bad days, she does not get out of bed the entire day due to pain and
feeling unbalanced (Tr. at 49).
Plaintiff does not have a lot of medical records because she does not want to be on a lot
of medication (Tr. at 49-50). Her neurologist told her there is not a lot that can be done for
her other than medication (Tr. at 50). Her MS will get progressively worse (Tr. at 50).
Plaintiff has been treated for depression and anxiety for about 15 years, or since she
was about 21 years of age (Tr. at 50, 69). Plaintiff was treated at Family Guidance Center
beginning in 1998 or 1989 (Tr. at 50). If she suffers from depression and anxiety at the same
time, she does not like to leave her house (Tr. at 51). When asked how often that happens,
plaintiff said, “It never not happens.” (Tr. at 51). Plaintiff does not want to be around anyone
(Tr. at 51). Plaintiff might go to the store for milk or a loaf of bread, but “if it’s actual
shopping, I can’t handle it.” (Tr. at 51, 82). Plaintiff suffers from crying spells every day but
they do not last very long (Tr. at 51). Plaintiff’s records from Family Guidance Center indicate
she was doing okay, but her situation has gotten worse since then (Tr. at 52). Her anxiety is a
lot worse because she worries and is upset all the time (Tr. at 52). She goes to bed at 2:00 a.m.
and she gets up at 7:00 a.m. (Tr. at 52). She does not sleep that entire five hours because her
mind races (Tr. at 52). Plaintiff is not getting counseling because she feels like people do not
care (Tr. at 52). She tried to go to counseling but she felt like it was not going to help her (Tr.
at 52-53). She has never actually seen a counselor (Tr. at 53). A psychiatrist has prescribed
medication for her (Tr. at 53). Plaintiff is currently taking 225 mg of Effexor XR (treats
anxiety and depression) which is helping (Tr. at 53).
Later, on questioning by the ALJ, plaintiff testified that she saw a psychiatrist from 2008
until the beginning of 2010 and stopped because they wanted her to get a case manager who
comes to her house and she did not want to do that (Tr. at 69). She did not want anyone
coming to her house (Tr. at 69). “I’ve been taking Effexor for 12, 13 years, and I don’t feel like
I need to be monitored on my medication. I mean that’s what it is.” (Tr. at 83). She still takes
the Effexor XL even though she is not seeing a mental health professional (Tr. at 69-70). Her
primary care physician prescribes it (Tr. at 70).
Plaintiff sleeps during the day three or four times a week (Tr. at 54). When she does,
she sleeps for three or four hours (Tr. at 54). Plaintiff takes her three-year-old daughter to day
care and her son is at school, so she feels like she can sleep (Tr. at 54).
Plaintiff’s hands are OK but her arms hurt all the time from the painful injection sites
(Tr. at 54). She does not know how much weight she can lift, but she cannot pick up her
daughter and she cannot take out the trash (Tr. at 54). She can lift a gallon of milk but cannot
pour it (Tr. at 54). She can pick things up better with her right hand than her left hand, even
though she is left-handed (Tr. at 55). Later she testified that she could lift 10 to 15 pounds (Tr.
at 81). She could not do that repetitively, however, and she would need to rest after lifting that
much (Tr. at 84). Plaintiff’s three-year-old daughter wants to be held all the time, and plaintiff
cannot do it (Tr. at 84). Her daughter weighs 44 pounds (Tr. at 85).
Plaintiff’s muscles in her upper legs hurt all the time because of getting shots in her legs
(Tr. at 55-56). There are only 8 injection sites she can use, but she actually only uses 4
because she gets boils when she uses the other four (Tr. at 56, 75). She can give herself shots
in either arm or either leg, on the left or right side of her stomach, and the left or right side of
her back (in which case someone else would have to administer the shot) (Tr. at 75). Plaintiff
only gives herself shots in her legs or her arms (Tr. at 76). Plaintiff gives herself the shots
before bedtime -- when she did it in the morning she had difficulty with shortness of breath
and nausea (Tr. at 56, 76). The nausea lasts anywhere from 30 to 60 minutes (Tr. at 56, 77).
The injection site becomes swollen and painful, and that lasts for a week or longer (Tr. at 76).
Therefore, because she gets a shot every day, she is always swollen and in pain (Tr. at 76).
Being active -- such as coming to her administrative hearing -- makes plaintiff’s
injection sites worse because any movement causes worse pain (Tr. at 56-57). Plaintiff can
only walk “maybe a half a block” due to pain (Tr. at 57).
Plaintiff first testified that her pain does not interfere with her concentration (Tr. at 57).
Then she changed her testimony and said it does (Tr. at 57). However, when she was asked
about that again, she testified that the lack of concentration is actually due to her mind
constantly racing (Tr. at 57-58). When asked to describe how her mind races, plaintiff said
she just feels like she needs to be doing something all the time (Tr. at 58).
Besides using Aleve, plaintiff takes hot baths to relieve her pain (Tr. at 58). After 24
hours, she can rub the injection site, so she does that (Tr. at 58).
Plaintiff last worked “outside the home” in March 2007 (Tr. at 58). She was a cashier
at Arby’s and worked there 7 or 8 months (Tr. at 58). She left that job because of her anxiety - “I just don’t want to be around people” (Tr. at 59). Plaintiff was not fired, she quit (Tr. at
59). Before Arby’s plaintiff worked as a computer tech at Albaugh Chemical Plant for about 9
months (Tr. at 59). She just watched a computer screen (Tr. at 59). She quit that job because
she was worried about being exposed to chemicals (Tr. at 59). Before that, plaintiff worked at
Taco Bandito as a cashier (Tr. at 60). Plaintiff worked at nursing homes, which she “absolutely
loved doing.” (Tr. at 60). She did that off and on for about six years (Tr. at 60). She was a
nurses assistant but did not get certified (Tr. at 60). Her jobs were “off and on” because she
would have bouts when she felt like she could not leave her house (Tr. at 60). Because her
employer could not tolerate plaintiff’s absences, she had to quit (Tr. at 60-61). When she
started feeling better, she would get rehired, but after a few months to a year, she would have
to miss work again and quit (Tr. at 61).
Plaintiff worked as a dialysis technician for about 8 months (Tr. at 61). She left that job
because she was afraid she would get too emotionally attached to the patients and then they
would die (Tr. at 61).
Plaintiff was hospitalized in 2001 or 2002 due to anxiety (Tr. at 61). It was so bad she
could not swallow, could not sleep, could not eat, and “probably” had a lot of thoughts of
suicide at the time (Tr. at 61). She was in the hospital for three weeks (Tr. at 62). She has not
been in the hospital since then for an emotional condition, but she did go to the emergency
room at Heartland Hospital in 2008 for an emotional condition (Tr. at 70). Plaintiff has panic
attacks -- she gets hot and sweaty, her mind will not stop thinking bad thoughts (but not
thoughts of hurting people), she cannot sleep or eat, and she feels like she can’t swallow (Tr. at
62). “Like, I don’t want to go out and eat in public because I’m scared of choking and people
seeing me.” (Tr. at 62). Plaintiff has a panic attack “maybe every month.” (Tr. at 71). They
last until she gets out of the situation she is in, which she estimated to be about a half hour (Tr.
at 71). During that half hour, she is not functioning (Tr. at 71). She cries and shakes and just
sits there or stands there and tries to get out of the situation (Tr. at 72).
Plaintiff has a driver’s license (Tr. at 62). Even though she doesn’t like to drive, if her
son wants to go somewhere or do something, she drives him (Tr. at 63). Plaintiff does not like
to drive because she feels overwhelmed all the time. “And I don’t like having to deal with
people, I guess. I don’t know. I just don’t like driving.” (Tr. at 63). Later when asked whether
she drives, she said, “Yeah, sometimes.” (Tr. at 82).
Plaintiff does not go see doctors because she does not want to leave her house -- she
feels like everyone is looking at her and “saying stuff” about her (Tr. at 63). When she does go
to the doctor, she just wants to get in and get out, and if she has to sit there and wait, she
worries and worries (Tr. at 63). When she gets back to see the doctor, she feels like something
has “been lifted off” her (Tr. at 63-64). But the whole time she is in with the doctor, she
cannot wait to get out of there and go home (Tr. at 64).
Plaintiff was asked whether she is able to bathe and care for her own personal hygiene
without help (Tr. at 64). “Yes. I mean, sometimes when my MS is really -- my nerves are
really bad, I do need somebody to help me get dressed and just help me with daily activities,
daily things.” (Tr. at 64). She was asked what is it about getting dressed that causes her
problems (Tr. at 64). Plaintiff said, “The numbing -- the numbing and tingling is so bad that I
can’t -- I can’t -- I -- it’s hard to have anything touching it. And so the muscles, like, feel like
jell-o. And so I feel off-balanced really bad. And -- I don’t know, I can’t explain it. It’s just
hard to do it for myself, I mean, it’s -- because I feel so off-balance that I have to have
somebody help me.” (Tr. at 64, 77). Plaintiff said that she can use her arm but cannot lift
anything because it feels like she is going to drop it (Tr. at 77-7). Plaintiff is not able to do any
cooking (Tr. at 64). Both of her sisters help when they can, and she eats a lot of microwaved
things (Tr. at 64). When asked what problems she has with cooking, plaintiff said, “Just sitting
there, concentrating on cooking.” (Tr. at 65). Plaintiff is able to do a few dishes and do
laundry (Tr. at 65, 82). Her 17-year-old son does “the big stuff” like dusting, vacuuming,
cleaning out the refrigerator, or the dishes if there are a lot of them (Tr. at 65). Plaintiff does
no outdoor work (Tr. at 82).
Plaintiff has stairs in her home and she is able to climb stairs although she avoids them
(Tr. at 65). When she climbs stairs, her knees crack and hurt, so she avoids stairs (Tr. at 66).
Plaintiff can stand for 10 minutes “at the most” (Tr. at 66). After that she feels overwhelmed
(Tr. at 66). She does not have physical problems from standing too long, “it’s more mental”
(Tr. at 66). Plaintiff can lift her arms above her head (Tr. at 66). It hurts, though, so she will
only do it if she has to -- it is not something she does every day (Tr. at 66-67). It hurts in her
upper arm at the injection site when she raises her arms (Tr. at 67). Using her arms makes her
pain worse (Tr. at 67).
Plaintiff squats to pick things up off the floor, and she does not have difficulty with that
(Tr. at 67). When asked how long she could sit at a time, plaintiff was reminded that she had
been sitting for an hour at that point in the hearing (Tr. at 81). She said, “Yeah, well, I don’t
want to be sitting here anymore.” (Tr. at 81). Plaintiff was asked how long she could stand in
line to wait for a million dollars, and she said after an hour she would rather get out of line
than stand any longer to collect a million dollars (Tr. at 81).
Plaintiff has headaches so bad that she has to go to the emergency room to get a shot
(Tr. at 67). She has had to do that three times in the last year (Tr. at 67-68).
Plaintiff’s social activities consist of doing things with her kids, because her kids are the
only people she is comfortable being around (Tr. at 68). She likes being around her other
family members but is not comfortable being around them (Tr. at 68). When asked whether
she attends school activities with her son, plaintiff testified:
I can go. I just -- I don’t like -- I try to avoid it. I try to -- you know, my son usually
doesn’t ask me, because he knows how I feel, but there’s sometimes that he does want
me there, and so he will, and so I will go. But I can’t stand being there. It eats at me
and eats at me until I can leave.
(Tr. at 68).
When plaintiff worked at Arby’s in 2007 she was a cashier and worked around people
(Tr. at 72). When asked how she dealt with that, plaintiff said, “When I first started working
there, it was fine. And then once I started being around people, it’s -- it just gets
overwhelming. I feel overwhelmed. And then it’s, like, I’ll have to shell up and regather
myself. And then I feel -- I just get down in the dumps abouth ow I live my life and what’s
going on. And I want to do better, so I go find another job” (Tr. at 72).
Vocational expert testimony.
Vocational expert Dr. Jerry Beltramo testified at the request of the Administrative Law
Judge. Despite plaintiff having had multiple different positions, only two qualified as
substantial gainful activity -- restaurant crew member and nursing assistant -- and she had
substantial gainful activities in only three years between 1993 and 2008 and those were in
1996, 1997 and 1998 (Tr. at 86-87).
The first hypothetical involved a person who can do the full range of sedentary work
with the following exceptions: the person can perform only simple, repetitive, routine work
that is as stress free as possible; the person has only limited contact with the public and coworkers; the person could do no repetitive movement of the neck, no repetitive overhead
lifting, no reaching or working above shoulder level; due to the person’s obesity only
occasional bending and stair climbing and no crawling, kneeling, crouching, squatting, or
lifting from floor level; the person would need a sit/stand option where the person could
alternate sitting and standing at will; and the person would need to avoid hot humid conditions
(Tr. at 88, 90). The vocational expert testified that such a person could not perform either of
plaintiff’s past relevant positions (Tr. at 88). Those jobs are medium exertional level jobs and
both require significant contact with other people (Tr. at 89). The person could, however,
work as a touchup screener in the inspection, testing and sorting area, DOT 726.684-110,
with 1,820 in Missouri and 66,500 in the country (Tr. at 90). The person could work as a
packager, DOT 559.687-014, with 620 in Missouri and 27,400 in the country (Tr. at 90-91).
The person could work as a batcher, DOT 723.687-010, with 1,025 in Missouri and 41,625 in
the country (Tr. at 91).
The second hypothetical was the same as the first except three days a month the person
would have a “flare up” which, when combined with the daily pain from injections, would
cause her to miss work (Tr. at 91-92). Since the summer weather would likely cause more
symptoms and the winter fewer, the ALJ averaged it out to three missed days of work per
month for the year (Tr. at 92). The vocational expert testified that such a person could not
work (Tr. at 92).
SUMMARY OF MEDICAL RECORDS
On August 2, 2007, plaintiff went to the emergency room at Heartland Regional
Medical Center complaining of anxiety (Tr. at 357-360). Plaintiff had had a baby a few days
earlier. She was seen in her regular doctor’s office and was started on Effexor. She said she
had been taking the Effexor for two days but had not been eating or drinking because she felt
like something was caught in her throat and her throat was dry. “Has been anxious because
she is the only care provider for her newborn daughter at home and is concerned that
something might happen to her.” Plaintiff had no hallucinations, no depressive symptoms, no
suicidal ideation. “The patient [is] just here because she feels like she needs some IV fluids,
because she has not been able to eat or drink. However, today she has been able to take fluids.
. . . She has no back pain.” Plaintiff was smoking one and a half packs of cigarettes per day.
She reported taking Effexor, Motrin (non-steroidal anti-inflammatory) and Percocet (narcotic).
A physical exam was performed and was normal, including her strength, her gait, her
extremities and her back. She was alert, speaking in full sentences, and in no acute distress.
“She is here just with what appears to be anxiety symptoms at this point. There appears to be
no acute medical issue with her.” Plaintiff was able to eat, drink, speak and breathe without
difficulty. Lab work was normal. Plaintiff indicated she was feeling better and was told the
Effexor would take a couple days to start working. Plaintiff was given three Xanax tablets (for
anxiety) and discharged.
Later that same day, plaintiff went back to the emergency room at Heartland Regional
Medical Center for a mental health evaluation (Tr. at 350-356). Plaintiff said that she was
afraid she would fall asleep and not be able to take care of her baby. “She has been started on
Effexor but has not been taking effect yet.” Plaintiff was three days post partum. Plaintiff’s
physical exam was normal, lab work was normal. “Drug screen positive for benzodiazepines
[Xanax is a benzodiazepine].” Plaintiff was noted to be eating and drinking without difficulty.
She was evaluated by a mental health expert and was “medically cleared.” Plaintiff was
diagnosed with anxiety.
On August 14, 2007, plaintiff was seen at Northwest Health Services (Tr. at 259-260).
Plaintiff said she had a baby two weeks earlier, and three days after giving birth she started
having numbness and tingling in her left arm and hand. She was not feeling tired or poorly.
She reported a past medical history of boils, “being treated,” and anxiety for which she was
taking Effexor XR. She was smoking one pack of cigarettes per day and reported herself as a
social drinker. She reported working “full time” and was having problems with sleep as she
would wake up every half hour. Plaintiff’s physical exam was normal, including her
musculoskeletal exam, except Tinnel’s sign5 was positive and peripheral neuropathy6 was
noted in her wrist. Her mental status exam was normal. Despite having noted that plaintiff
A tingling sensation in the distal end of a limb when percussion is made over the site of a
“Peripheral neuropathy, a result of nerve damage, often causes weakness, numbness and
pain, usually in your hands and feet, but it may also occur in other areas of your body. People
generally describe the pain of peripheral neuropathy as tingling or burning, while they may
compare the loss of sensation to the feeling of wearing a thin stocking or glove.”
was not feeling tired or poorly, the doctor assessed “Feeling tired or poorly” along with carpal
tunnel syndrome,7 nicotine dependence, and depression. The doctor told plaintiff to stop
smoking and gave her a prescription for Wellbutrin SR (treats depression and aids in quitting
smoking). It appears that the medical records at Northwest Health Services were not always
properly updated -- every record indicates that plaintiff was working full time (when she
clearly was not) and that she reported waking up every half hour and that she was not feeling
tired or poorly. These statements are contradicted, sometimes even in the very records of
Northwest Health Services.
On August 22, 2007, plaintiff saw Arjumand Jaffri, M.D., a psychiatrist (Tr. at 288,
290-291). Plaintiff said she had been seeing another mental health provider but stopped her
medication a year earlier when she got pregnant. She became severely depressed after her
daughter was born. She was anxious, crying and pacing the time. Her OB/GYN prescribed
Effexor (treats anxiety and depression). Plaintiff said she was hospitalized in 1994 for severe
depression. Plaintiff reported no thoughts of harming her infant daughter, no obsessive
compulsive disorder, no history of violence, no periods of euphoria, grandiosity or flight of
ideas. “She has a strong support system of friends and family.” Plaintiff said she dropped out
of school in 11th grade because she did not care about school but she got a GED. She lived
with a man for 13 years but was no longer in a relationship. She had a history of marijuana
usage in high school but not as an adult. She was smoking one pack of cigarettes per day. She
said she had a steady job up until six months ago. Dr. Jaffri performed a mental status exam
and noted that plaintiff was alert and oriented, neatly dressed, very pleasant and cooperative,
“Bound by bones and ligaments, the carpal tunnel is a narrow passageway -- about as big
around as your thumb -- located on the palm side of your wrist. This tunnel protects a main
nerve to your hand and nine tendons that bend your fingers. Compression of the nerve
produces the numbness, pain and, eventually, hand weakness that characterize carpal tunnel
her mood was fair, affect was congruent, she talked affectionately to her daughter while
playing with her and feeding her. No delusions were noted, memory and concentration were
fair, insight and judgment were fair. Plaintiff was assessed with Major Depressive Disorder,
recurrent, moderate; post-partum depression and panic attacks, and she was assessed with a
GAF of 60.8 Plaintiff said her current dose of Effexor had been effective, so Dr. Jaffri continued
her on that same medication at the same dose. Dr. Jaffri encouraged plaintiff to participate in
counseling and gave her the phone number to two organizations.
On September 10, 2007, plaintiff saw Dr. Jaffri for a follow up (Tr. at 291). Plaintiff
reported having some residual symptoms of anxiety but was able to handle it. Dr. Jaffri
performed a mental status exam and observed that plaintiff was alert and oriented, neatly
dressed, pleasant and cooperative. Her mood was fair, affect congruent, no suicidal or
homicidal ideation, no psychiatric symptoms, memory and concentration were fair. Plaintiff
was assessed with Major Depressive Disorder in partial remission. She was told to continue
her same medications, and Dr. Jaffri again encouraged counseling.
On October 22, 2007, plaintiff saw Dr. Jaffri for a follow up (Tr. at 289). Plaintiff said
she was doing better, her anxiety and depression had improved, she was not crying, thought
processes were clear and goal directed. “Planning to go to work and has set up a day care for
her daughter.” Dr. Jaffri performed a mental status exam and observed that plaintiff was alert
and oriented, neatly dressed, very pleasant and cooperative, her mood was fair and affect was
congruent, she had no suicidal or homicidal ideation and no psychiatric symptoms, memory
and concentration were fair, insight and judgment were fair. She reported no medication side
effects. She reported that she occasionally drinks but not to intoxication. Plaintiff was assessed
A global assessment of functioning of 51 to 60 means moderate symptoms (e.g., flat affect
and circumstantial speech, occasional panic attacks) or moderate difficulty in social,
occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).
with Major Depressive Disorder in partial remission. She was told to continue her
medications. “Strongly advised against drinking and suggested AA if needed.”
On November 12, 2007, plaintiff was seen at Northwest Health Services complaining of
having been shot in the right hand with a bb gun (Tr. at 258-259). She also complained of
boils (pus-filled bumps under the skin caused by bacteria infecting and inflaming a hair
follicle) over her legs. She was not feeling tired or poorly. She was taking Ibuprofen (nonsteroidal anti-inflammatory) and Effexor XR (treats anxiety and depression). Plaintiff reported
a past medical history of boils, “being treated,” and anxiety for which she was taking Effexor.
She was smoking one pack of cigarettes per day and reported herself as a social drinker. She
reported working “full time” and was having problems with sleep as she would wake up every
half hour. X-rays of plaintiff’s hand revealed a metallic BB in the soft tissues of the right hand
(Tr. at 261). Plaintiff’s musculoskeletal exam was normal; her mental status exam was normal.
The rest of her physical exam was normal except for boils under her skin and erythema (a
hypersensitivity reaction to medication). She was assessed with carbuncle (a cluster of boils,
which are pus-filled bumps under the skin caused by bacteria infecting and inflaming a hair
follicle) on the right thigh and carbuncle on the left thigh. The doctor told her to “maintain
regular exercise” and prescribed an antibiotic.
On November 29, 2007, plaintiff was seen at Northwest Health Services complaining of
a painful, swollen lip (Tr. at 256-258). She was not feeling tired or poorly. She was taking
Effexor XR. Plaintiff reported a past medical history of boils, “being treated,” and anxiety for
which she was taking Effexor. She was smoking one pack of cigarettes per day and reported
herself as a social drinker. She reported working “full time” and was having problems with
sleep as she would wake up every half hour. Plaintiff’s mental status exam was normal, and
her physical exam was normal except she had a swollen lip with a lesion. She was assessed
with carbuncle. She was given prescriptions for antibiotics.
On December 5, 2007, David Halbach, M.D., removed a cyst from plaintiff’s right hand
(Tr. at 347).
On December 17, 2007, plaintiff failed to show for her appointment with Dr. Jaffri (Tr.
On January 23, 2008, plaintiff failed to show for her appointment with Dr. Jaffri (Tr. at
On January 29, 2008, plaintiff saw Dr. Jaffri for a follow up (Tr. at 287). Plaintiff
reported that her anxiety had improved with Vistaril (treats anxiety). “Her mood is good. No
dysphoria,9 crying or angry outbursts. No SE [side effects] from Vistril [sic].” Dr. Jaffri
performed a mental status exam and noted that plaintiff was alert and oriented, neatly dressed,
pleasant, well groomed. Her mood was fair, affect and mood were congruent, she had no
suicidal or homicidal ideation, no psychiatric symptoms, memory and concentration were fair,
insight and judgment were fair. Dr. Jaffri noted that plaintiff was not in counseling. She
assessed Major Depressive Disorder in partial remission and told plaintiff to continue her
current medications and “continue supportive therapy.”
February 1, 2008, is plaintiff’s alleged onset date.
On March 16, 2008, plaintiff went to the emergency room at Heartland Regional
Medical Center complaining of left groin pain for the last three weeks (Tr. at 342-346). The
pain was not radiating anywhere. Plaintiff reported a history of anxiety but no other medical
history. She continued to smoke. Effexor was her only medication. Her extremities were
normal, the remainder of her physical exam was normal except some right-sided tenderness.
Lab work was done. Plaintiff was assessed with groin pain of unknown etiology and was told
A state of feeling unwell or unhappy.
to follow up with her primary care physician.
On April 9, 2008, plaintiff failed to show for her appointment with Dr. Jaffri (Tr. at
On May 1, 2008, plaintiff saw Dr. Jaffri for a follow up (Tr. at 286). “She is doing
good and not needing her Vistaril.” Plaintiff said her “Effexor is doing good.” She denied any
dysphoria, crying or anhedonia.10 “Helps her mother in law at her day care and feels happier.
Sleep and appetite OK.” Dr. Jaffri performed a mental status exam and noted that plaintiff was
alert and oriented, neatly dressed, pleasant and cooperative, euthymic, affect and mood were
congruent, no suicidal or homicidal ideation, no psychiatric symptoms, memory and
concentration were fair, insight and judgment were fair. Plaintiff was taking Effexor XR and
Vistaril (treats anxiety) with no side effects. Dr. Jaffri assessed Major Depressive Disorder in
partial remission. She continued plaintiff on her same medications.
On May 28, 2008, plaintiff was seen at Northwest Health Services (Tr. at 254-256).
Plaintiff said she had been unable to hear out of her right ear for the past two weeks. She
reported taking Effexor XR (treats anxiety and depression). She reported past medical history of
boils, “being treated,” and anxiety disorder for which she was taking the Effexor. She was
smoking one pack of cigarettes per day and reported herself as a social drinker. Plaintiff
reported working “full time” and she was having problems with sleep as she would wake up
every half hour. Plaintiff said she was not feeling tired or poorly, she had no earache or
hearing loss. Plaintiff’s exam was entirely normal. She was assessed with eustachian tube
dysfunction of the right ear. She was prescribed a Medrol dose pak (steroid) and was told to
take over-the-counter Sudafed and try to pop her ears three times a day by chewing gum.
On June 14, 2008, plaintiff went to the emergency room at Heartland Regional Medical
An inability to experience pleasure from activities usually found enjoyable.
Center reporting vaginal bleeding (Tr. at 338-341). Plaintiff was smoking one pack of
cigarettes per day. She denied any medical history. She denied any musculoskeletal symptoms,
she denied any ENT symptoms. “All other systems reviewed and otherwise negative.” A
physical exam was performed. Skin was normal, ears were normal, back was normal,
extremities were normal, neurological exam was normal. Plaintiff was given ibuprofen and
On July 23, 2008, plaintiff failed to show for her appointment with Dr. Jaffri (Tr. at
On August 11, 2008, plaintiff saw Dr. Jaffri for a follow up (Tr. at 285). Plaintiff
reported brief periods of increased anxiety and sadness, “maybe once a week”. She denied any
increased crying. Dr. Jaffri performed a mental status exam and noted that plaintiff was
pleasant and cooperative with euthymic affect and congruent mood, no suicidal or homicidal
ideation, no psychiatric symptoms, memory and concentration were fair, insight and judgment
were fair. Plaintiff was assessed with Major Depressive Disorder in partial remission. Dr.
Jaffri told plaintiff to increase her Effexor dosage and referred her for therapy.
On August 22, 2008, plaintiff was seen at Northwest Health Services (Tr. at 253-254).
She complained that her right ear was still hurting and feeling clogged up, and her head,
hands and left leg felt tingly. Plaintiff said she was taking Effexor XR. She reported past
medical history of boils, “being treated,” and anxiety disorder for which she was taking the
Effexor. She was smoking one pack of cigarettes per day and reported herself as a social
drinker. Plaintiff reported working “full time” and she was having problems with sleep as she
would wake up every half hour. Plaintiff’s mental status exam was normal. Plaintiff was
diagnosed with eustachian tube dysfunction, she was told to stop smoking, and she was told to
continue taking the Effexor. The doctor prescribed Prednisone (steroid) for five days, Flonase
(steroid nasal spracy) (with three refills), Ibuprofen (non-steroidal anti-inflammatory) 800 mg
to take as needed up to three times a day for 30 days (with five refills).
On August 27, 2008, plaintiff saw David Kropf, M.D., an ear, nose and throat specialist
(Tr. at 270). She complained of hearing loss over the past three months and pain described as
a 10/10 for the past week. Plaintiff reported smoking one pack of cigarettes per day and being
a social drinker of alcohol. She was on Medicaid. Plaintiff’s physical exam was normal, her
gait was observed to be normal. Plaintiff was assessed with otalgia (ear ache), hearing loss,
and atypical face pain. Dr. Kropf recommended an MRI and told plaintiff to see her primary
care physician for pain management.
On September 2, 2008, plaintiff had an MRI after having been referred by Dr. Kropf
(Tr. at 274-278, 333-336). Douglas Goodman, M.D., observed a lesion on the left side of
On September 9, 2008, plaintiff saw Dr. Kropf to go over her MRI results (Tr. at 271).
Plaintiff continued to complain of right ear hearing loss and itching in her right ear canal. She
said it had been going on for four months and that steroids and Sudafel had been no help.
Plaintiff’s physical exam was normal, including her gait and her “communication ability.” Dr.
Kropft recommended plaintiff see a neurologist.
On September 30, 2008, plaintiff saw Nitin Sharma, M.D., with Heartland Neurology
(Tr. at 296-299). She reported hearing loss for the past two months and numbness over the
right side of her body for the past month. She was taking only Effexor XR. Plaintiff said she
had no motor weakness, no balance problem, no visual disturbances, no headaches, no
shortness of breath. Plaintiff continued to smoke. Plaintiff was noted to be alert and oriented,
“comfortable, participates in conversation well, follows commands appropriately”. On exam
plaintiff was found to have normal facial strength with no abnormal movements, normal
swallowing. All extremities had normal extension and flexion, normal muscle strength, no
involuntary movements and no muscle asymmetry. Her gait was normal. Everything on her
exam was normal except plaintiff felt a tingling sensation on the right part of her face on touch
sensation testing. Her attention span was normal, mood and affect were normal. Dr. Sharma
talked to plaintiff about cervical radiculopathy and multiple sclerosis. He ordered an MRI of
her cervical spine along with lab work.
On October 6, 2008, plaintiff had x-rays of her cervical spine which were normal (Tr.
That same day plaintiff saw Dr. Jaffri for a follow up (Tr. at 284). The record quotes
plaintiff as having said, “I am doing good.” Plaintiff said she did not increase her Effexor
because she “thought [she] could handle it.” Dr. Jaffri wrote, “She is doing well and handling
things well. She is being evaluated for MS. Her mood is good.” A mental status exam was
performed. Plaintiff was noted to be pleasant, neatly dressed, no suicidal or homicide ideation,
no psychiatric symptoms, memory and concentration were fair, insight and judgment were
fair. Plaintiff was taking Effexor XR. With that she was “doing well” and had no side effects.
Plaintiff was assessed with Major Depressive Disorder in partial remission. She was told to
continue her current medications and return in two months or as needed.
On October 13, 2008, plaintiff saw Dr. Sharma for a follow up (Tr. at 301-302). “She
missed her appointment for a spinal tap.” Plaintiff was noted to be “comfortable, participates
in conversation well, follows commands appropriately.” Her exam was normal except she had
mild swelling with local tenderness over the right submandibular area.11 She had normal
swallowing, normal facial strength with no abnormal movements. All of her extremities had
normal range of motion and normal muscle strength. She was able to walk with good stability.
Her attention span was normal, mood and affect were normal, and she was oriented. Plaintiff’s
cervical spine x-ray was normal, but Dr. Sharma rescheduled her spinal tap and cervical MRI.
He again discussed multiple sclerosis and cervical radiculopathy and indicated he was going to
confer with Dr. Duad about plaintiff’s blood work which showed an elevated anticardiolipin
On October 16, 2008, plaintiff had an MRI of her cervical spine due to her complaints
of right-sided head and facial numbness over the past three months (Tr. at 264-265, 305-306,
330-331). The results were normal. She specifically had no central or lateral impingement at
C2-3, C3-4, C4-5, C5-6, C6-7, or C7-T1.
On October 29, 2008, plaintiff saw Dr. Sharma for a follow up on her lab work (Tr. at
303-304). Plaintiff said she was feeling better, they discussed the results of her tests. She had
no symptoms. She was noted to be “comfortable, participates in conversation well, follows
commands appropriately.” She had normal swallowing, normal muscle tone and strength in
all extremities, she was “walking with good stability”. Her attention span was normal; mood
and affect were normal. Dr. Sharma provisionally diagnosed plaintiff with multiple sclerosis
but said he wanted to confer with a rheumatologist before he made his final diagnosis.
Plaintiff was prescribed Prednisone (steroid) for 2 1/2 weeks.
On October 31, 2008, plaintiff saw Umar Daud, M.D., a rheumatologist at the
Heartland Arthritis Center after having been referred by Dr. Sharma (Tr. at 377-379).
Plaintiff reported that she had had poor balance and had fallen. She reported a long history of
hip pain and low back pain. She also complained of muscle pain and muscle weakness, and
she said she is stiff in the morning for a few minutes. She complained of sleep problems,
nervousness and depression. Plaintiff reported smoking a pack of cigarettes per day, drinking
beer on the weekends, and being currently unemployed. On exam plaintiff was observed to be
pleasant and in no acute distress. “She is tender over some joints of the hands without any
synovitis.12 She is tender in the lumbar spine without any point tenderness. Straight leg raising
was negative. Good range of motion of the hips.” Dr. Daud ordered repeat testing, lab work,
and x-rays. “For low back pain we will check x-rays of the lumbar spine and hips. I have
asked her to reduce her exercising and quit smoking.”
On October 31, 2008, plaintiff had x-rays of her pelvis and hips after complaining of
bilateral hip pain (Tr. at 323). The results were normal. She had x-rays of her lumbar spine
due to complaints of low back pain and history of multiple sclerosis (Tr. at 324). The results
On November 10, 2008, plaintiff applied for disability benefits.
On December 23, 2008, plaintiff saw Dr. Jaffri for a follow up (Tr. at 397). Plaintiff
reported that she was diagnosed with multiple sclerosis about three weeks earlier and was
feeling anxious about the shots she had to take for therapy. “Occasionally has low mood but is
handling it well. No crying or anhedonia. No self inj[urious] behavior.” Dr. Jaffri performed
Inflammation of a joint-lining membrane.
a mental status exam. Plaintiff was noted to be alert and oriented, casually dressed,
cooperative, pleasant. Her speech had regular rate and rhythm, she had no suicidal or
homicidal ideation, no psychiatric symptoms. Her memory and concentration were fair. She
was “doing well” on Effexor with no side effects. Plaintiff was assessed with Major Depressive
Disorder in partial remission and multiple sclerosis. Plaintiff was to continue on her current
medications and return in two months.
On January 9, 2009, plaintiff saw Dr. Sharma (neurologist) for a follow up (Tr. at 399400). Plaintiff’s medications were listed as Prednisone (steroid) and Effexor (for anxiety and
depression). “On copaxone now” and plaintiff was doing better with her paresthesia. She
complained of off and on body soreness and aches and pains since she started using the
copaxone. Plaintiff was observed to be “alert and oriented, comfortable, participates in
conversation well, follows commands appropriately.” Dr. Sharma performed a physical exam
and noted that plaintiff had normal facial strength with no abnormal movements, normal
swallowing, normal muscle tone and strength in all extremities, she was able to walk with
good stability and no shuffling. The rest of her physical exam was normal. “[H]er body
paresthesias recovered since on copaxone and doing well. She is stressed and cryful with life
and get nervous. My impression for underlying stress/anxiety disorder and advised
biofeedback/meditation and physical exercises. She is on Effexor. It help[s] her.” Dr. Sharma
ordered blood work and told plaintiff to follow up in three months.
On February 17, 2009, plaintiff failed to show up for her appointment with Dr. Jaffri
(Tr. at 397).
On February 23, 2009, plaintiff saw Dr. Sharma for a follow up (Tr. at 401-403). “She
is feeling stiffness and pain over her neck and seen at ER.” Plaintiff’s neck x-rays in the
hospital were reported to have been normal. Plaintiff was observed to be alert and oriented,
comfortable, participating in conversation well and following commands appropriately. Dr.
Sharma noted that plaintiff had muscle spasm, stiffness and painful mobility with her neck.
On exam she had normal muscle tone and strength in all extremities, normal swallowing, and
was able to walk normally with good stability. Her mood and affect were noted to be anxious.
She was diagnosed with neck pain and multiple sclerosis. Dr. Sharma prescribed diazepam
(treats anxiety and muscle spasms) and Flexeril (muscle relaxer) and was told to use one at
night and one during the day. Plaintiff’s multiple sclerosis was noted to be stable on copaxone.
On April 9, 2009, plaintiff saw Dr Jaffri for a follow up (Tr. at 396). “She is doing
well.” Plaintiff said she was occasionally feeling worried when she thinks about having
multiple sclerosis. Plaintiff reported no dysphoria, no crying, no angry outbursts. Dr. Jaffri
performed a mental status exam. Plaintiff was alert and oriented, casually dressed, neatly
groomed, pleasant and euthymic. Her affect and mood were normal and congruent. She had
no suicidal or homicidal ideation, no psychiatric symptoms, her memory and concentration
were fair. She was taking her Effexor. “Doing well. Anxiety but controlled.” Plaintiff was
assessed with Major Depressive Disorder in partial remission and multiple sclerosis. Dr. Jaffri
encouraged therapy to help deal with stressors. Plaintiff was told to continue taking Effexor
and to return in three months.
On January 23, 2009, Joan Singer, Ph.D., completed a Psychiatric Review Technique
and found insufficient evidence of a mental impairment (Tr. at 384-395). In support of her
findings, Dr. Singer noted that plaintiff’s diagnoses of anxiety disorder in August 2007 are not
from a medically-acceptable source as they were made by a nurse practitioner. Additionally,
plaintiff was noted to have worked full-time a year after the diagnoses were made. Dr. Jaffri’s
records of August 2007 included major depressive disorder, postpartum depression and panic
attacks, but nine months later plaintiff was noted to have been helping her mother-in-law in
her day care and felt happier. In August 2008 she was noted to be having brief periods of
increased anxiety and sadness maybe once a week. On October 6, 2008, she was “doing good”
and had not increased her dosage of Effexor as suggested because she felt she could “handle
it.” She was doing well, handling things well, and her mood was good. “As the claimant failed
to return the Function or Work History Report, she was contacted by DDS counselor by phone
on 1/06/09. After some discussion, the claimant had agreed to return the Function Report and
counselor agreed to obtain work history at a later date by phone. However, as of date of
dictation, the claimant has not returned the Function report. Based on available evidence, the
claimant did not have a psychiatric impairment of disabling severity prior to the DLI [date last
insured] of 6/30/08. No further medical development is undertaken currently due to
claimant’s failure to provide requested information.”
On May 15, 2009, plaintiff saw Peggi Lucas, a nurse practitioner (Tr. at 410-411).
Plaintiff said that ever since she was diagnosed with multiple sclerosis, she had been having a
lot more anxiety. Plaintiff denied depression. Plaintiff continued to smoke one pack of
cigarettes per day and said she was a social drinker. Plaintiff’s back had tenderness on
palpation. She was assessed with “feeling tired or poorly,” depression, and anxiety disorder
not otherwise specified. She was continued on her same medications.
On July 27, 2009, plaintiff saw Dr. Sharma for a follow up (Tr. at 404-406). Plaintiff
said that in the last few days she had experienced numbness and tingling, and one “one night”
she had a choking sensation over food. She had been seen in the emergency room and her tests
were normal. “Now doing well. Tolerating her copaxone well. Her low back pain [is] better.”
Plaintiff was observed to be alert and oriented, comfortable, participating in conversation well
and following commands appropriately. Plaintiff’s exam was normal including her ability to
swallow, her muscle tone and strength in all extremities, and her gait was normal. Dr. Sharma
indicated that her paresthesia was likely a “mild flare” of her multiple sclerosis due to the hot
humid summer weather. “She is doing well with copaxone.” Plaintiff’s CT of her brain and
her blood work up from the ER were OK. As far as her low back pain, conservative measures
were recommended and Dr. Sharma “advised against use of narcotics”. He told her to avoid
the heat and increase her fluid intake. She was to follow up in six months.
On August 4, 2009, plaintiff was seen by Peggi Lucas, a nurse practitioner (Tr. at 409).
Plaintiff reported that she was feeling tired and was having hip problems. Plaintiff was
continued on her same medications.
On March 23, 2010, plaintiff was seen by Vickie Kimball, a nurse practitioner, for a
refill on Effexor (Tr. at 408-409). Plaintiff denied anxiety, denied depression, denied sleep
disturbances. Ms. Kimball performed a physical exam and noted that plaintiff’s back was
normal with no costovertebral13 tenderness. Her musculoskeletal system was normal. “Patient
reports no depression or anxiety.” Plaintiff maintained eye contact throughout the interview.
Plaintiff was assessed with multiple sclerosis and anxiety disorder not otherwise specified.
Exercise was encouraged (Tr. at 409). Plaintiff was continued on her Effexor.
On November 30, 2010, plaintiff was seen by Nicholas Bingham, M.D., at the request
of Disability Determinations (Tr. at 412-416).
HISTORY OF PRESENT ILLNESS: This is a pleasant 36-year-old female in no acute
distress. . . . The pain is, at best, 5 of 10 in the right neck/shoulder area and opposite
leg. It is tingling and severe pins and needle sensation. It can be as bad as 10 of 10 and
she cannot get out of bed. She states that she has 5 of 10 days about 20 out of 30 days
in a month. The severe 10 of 10, about two days a month. She was on Copaxone for a
while but has been changed as she was developing skin lesions.
The patient has also suffered depression and anxiety times 15 years. She is improved
but not cured with meds. When she has an attack she has difficulty swallowing. She
worries about most everything. She also has components of agoraphobia. She cannot do
her own grocery shopping; her sister does it. She can go into a store and pick up a
single item if she gets in and out quickly. She cannot tolerate Walmart as there is too
much crowding and activity there. She has long-standing depression as characterized
by amotivation mostly. . . . She does not have a psychiatrist; she [has] been seen at a
clinic but this clinic now requires that she have a case manager, more or less a social
worker, to follow her which she finds intrusive and does not wish to submit to. She
cannot find a psychiatrist currently that will take Medicaid. The patient states she has
considerable anxiety over her 18-year-old son because he states he has been hearing
voices since he was five years old, and feels he may be acting out on these voices.
SOCIAL HISTORY: The patient is single. She has an 18-year-old son and a 3-year-old
daughter at home with her. She is a smoker of one pack-per-day since the age of 14. . .
PHYSICAL EXAMINATION: . . . Pain 7 of 10. In general, this is a well-developed, wellnourished female in no acute distress. She is alert, oriented, and cooperative. She
seemed somewhat agitated and suspicious of the process. She also, at times during the
history, became quite tearful, and showed mild psychomotor agitation at other things.
Her hygiene is good. I would estimate her level of intelligence to be above average. She
uses no assistive devices for ambulation and none are indicated. She is left hand
dominant. Her affect is variable. . . .
Musculoskeletal exam revealed a normal fluid gait. Tandem walking14 was not possible.
Romberg15 was mildly positive. No difficulty getting on or off the exam table. Exam of
the dorsolumbar spine shows tenderness in the left lumbosacral area and mildly limited
range of motion. . . . Straight leg raise was negative. Range of motion of the shoulders,
elbows, wrists, hips, knees and ankles was full and bilaterally symmetrical and
Tandem gait is a method of walking where the toes of the back foot touch the heel of the
front foot at each step.
The patient stands still with his heels together and is then asked to remain still and close
his eyes. If the patient loses his balance, the test is positive.
unguarded. . . . Range of motion of all joints of the hands and fingers were normal.
There were no significant degenerative findings evident. . . . There was no atrophy or
asymmetry noted. The patient was able to make a fist with both hands. Manual
dexterity was normal. . . . There were subjective complaints of loss of sensation in the
face, neck and shoulder area, and the left lower extremity. The patient complains of
allodynia16 almost with any kind of palpation of the lower extremity. She states that
even taking a shower can sometimes be painful for her.
PHYSICAL RESIDUAL FUNCTIONAL CAPACITY ASSESSMENT: The following
recommendations are based on my clinical judgement and reflect the claimant’s ability
to perform work related functions within a regular work setting on a day to day basis.
She can sit six ours [sic] in an eight-hour day, and can stand and walk four hours in an
eight-hour day. I would estimate she can lift 30 pounds occasionally and 10 to 20
pounds frequently. Pushing and pulling would be unrestricted other than as indicated
for lifting and carrying. Due to paresthesia, she should be restricted from climbing
ladders and balancing at unprotected heights. No particular contraindications to
bending, stooping, kneeling, crouching or crawling. Due to poor neck mobility, caution
should be used with driving. There are restrictions with regard to hearing and
speaking. Agoraphobic components, however, would preclude her from working with
the public. There are no environmental imitations such as exposure to fumes, odors,
dust, gases, poor ventilation or machinery hazards. Paresthesia might make tolerating
heat, cold and vibrations difficult.
EXPLANATION: I feel this examinee’s primary barrier to competitive labor market is
anxiety. It would seem to be inadequately and incompletely treated. She has physical
complaints related to the multiple sclerosis, and this will require ongoing care.
Physically, however, I do not feel that she is disabled from all occupations within her
level of competence. I would recommend psychological re-evaluation.
A condition in which pain arises from a stimulus that would not normally be experienced
Plaintiff’s knee range of motion17 was 100E (normal is 150E). Forward flexion18 of her
hip was 80 on the right and 90 on the left (normal is 100). Abduction was 20 on the right, 30
on the left (normal is 40). Adduction was 10 on the right, 15 on the left (normal is 20). Ankle
dorsiflexion19 was 10 bilaterally (normal is 20), and plantar flexion was 30 bilaterally
(normal is 40). Flexion of the cervical spine20 was 20 (normal is 50), extension was 45
(normal is 60). Cervical spine rotation was 70 to the right, 40 to the left (normal is 80).
Lumbar spine flexion (bending forward was 75 (normal is 90), and lateral flexion (bending
side to side) was 20 on the right, 15 on the left (normal is 25).
On December 3, 2010, Dr. Bingham completed a Medical Source Statement (Tr. at
418-423). He found that plaintiff could continuously lift and carry up to 10 pounds,
frequently lift and carry 11 to 20 pounds, occasionally lift and carry 21 to 30 pounds, and
never lift more than 30 pounds. He found that plaintiff could sit for 4 hours at a time and for
6 hours total per work day; stand for 2 hours at a time and for 4 hours total per work day. He
found that plaintiff could frequently reach overhead, frequently reach in all other directions,
frequently handle, frequently finger, frequently feel, and frequently push or pull with both
hands. He found that plaintiff could frequently use both feet. He found that plaintiff could
frequently climb, balance, stoop, kneel, crouch, and crawl. Plaintiff had no impairments
affecting her ability to hear or see. She could never work at unprotected heights; she could
occasionally operate a motor vehicle or work around wetness, humidity, extreme temperatures
and vibrations; and she could frequently work around moving mechanical parts, dust, odors,
fumes, and pulmonary irritants. He found that plaintiff could be exposed to moderate noise
(such as would be found in an office). He found that plaintiff could perform activities like
shop, travel alone, walk a block, use standard public transportation, climb a few steps, prepare
a simple meal and feed herself, care for her personal hygiene, and work with papers or files.
On January 20, 2011, Richard Taylor, Psy.D., a clinical psychologist, performed a
psychological evaluation in connection with plaintiff’s application for disability benefits (Tr. at
She was casually dressed, but was neat and clean. . . . She was accompanied by her
“sister-in-law”, Patty Schroeder, who provided transportation to and from the
examiner’s office. She explained about her relationship to Patty Schroeder, “I’ve dated
her brother for a long time.” Michelle had fairly strong tobacco breath. . . .
Michelle reported being depressed and having anxiety attacks. She also reported having
Plaintiff reported that her “family doctor” prescribes her Effexor, but she named Vicki Kimble
with the North End Health Clinic who is a nurse practitioner. Plaintiff said she lived with her
boyfriend and their three combined children. Plaintiff reported that her son’s father died
when her son was six. Her daughter’s father is not in plaintiff’s life. “‘He’s in her life. He gets
her on weekends.’ She denied receiving child support, but added, ‘He’s gonna start. I had to
get a lawyer. He tried to keep her from me. He makes thirty dollars per hour and I don’t get no
money. He has a brand new car.’” Plaintiff was tearful when talking about her father dying in
2007. She said she did not have anything to do with her brother who is addicted to
methamphetamine. Plaintiff reported that she lost her mother who does not care about coming
around. “I mean my family will be there for me. My sister will help me get dressed. I feel like
I have to be my family’s emotional backbone.”
Plaintiff reported that she got her GED 15 years after dropping out of high school. “I
was in the top one percent in the country. I went one semester at Missouri Western. It’s so
crazy to get financial aid you have to be a full time student.” With respect to her employment,
“I started off with mainly restaurant work, nursing homes, I enjoyed working with
elderly people. I wanted to be a nurse. A good friend of mine worked at the dialysis
center. I worked there. I loved it. I worked there for three years. I could work on
Barry Road, but they do dialysis on children. I know they are going to die.” She
replied, “A tech, dialysis tech. I actually would do the dialysis on patients. I really
enjoyed it. It made me feel important. It made me feel good about myself.” Michelle
replied about why she left the dialysis job, “A company bought us out. They layed [sic]
off eight people.” . . .
Michelle replied that her last job, “Well I worked at Arby’s. Albaugh, it’s a chemical
plant. I would come home with little holes in my clothes. I found out I was pregnant. I
wasn’t going to expose my daughter to that. I was making thirteen dollars an hour at
Albaugh.” She replied that she worked “less than a year, not very long” for Albaugh.
Michelle replied, I was a tech, nano tech is what they call it. I would watch the
computer screen. If the numbers would go beyond I would go out on the floor and turn
the valves to get the numbers to be where they were supposed to be.” She reported
working full time for Albaugh and leaving in 2007. Michelle replied about her work at
Arby’s, “Just a cashier part-time.” She started working for Arby’s “I think it was
January of ‘07,” and left “I think it was the end of April ‘07.” Michelle reported the
reason she left Arby’s “Well, my pregnancy with my daughter. I started having a lot of
problems with my pregnancy. It was really M.S.”
Michelle denied having any income. She admitted to having Medicaid insurance and
receiving food stamps. Michelle reported about her son, “He still collects his dad’s death
Plaintiff reported that her boy friend shot her in the hand with a BB gun. “I get boils
really bad. They cut them out three times. The infection would go down my leg.” With respect
to counseling, Dr. Taylor noted the following:
Michelle denied receiving counseling. “No, I probably need some. When I was with
Family Guidance I had Dr. Valera then Dr. Mahmood, and then they wanted me to have
a care manager. I told them I didn’t need a baby sitter. They dropped me. They said
everybody on Medicaid has to have one. There is no place in this town you can go if
you are poor. Family Guidance scheduled me an appointment for counseling. The
counselor wasn’t even there. I’ve learned to block it out. I just don’t care anymore.
Michelle volunteered, “My anxiety has gotten so bad I can’t function. It’s [sic] seems to
be more and more people are getting mentally ill. I don’t know. It’s out of my hands.
I’ve had to go to the E.R. There are 300 people in the waiting room. I just try to find a
doctor who will take me. I can’t swallow. I feel like something is stuck in my throat.
With Family Guidance it takes at least a month to get an assessment.” She replied that
her anxiety began “When my son was young. I probably need more mental health than
the Effexor. My mind races. I’ve had two episodes since my daughter was born. I’m
not gonna kill myself, but I’m ready to go. My daughter would be better off without me.
I feel like I’m gonna end up screwing her life up.” Michelle began to cry. She
continued, “I have another son I put up for adoption. He lives in Pennsylvania.”
Michelle continued to cry. She reported, “My other son, he’s a good kid. He helps me
out a lot. Any time I tell him no, he tells he [sic] he hates me. I spoiled him. He tells me
he wishes I would have died instead of his dad. My daughter is beautiful and smart.
She’s a true Godsend.” Michelle continued to cry. “I hate myself a lot. I don’t do
drugs. I obey the law. I keep my house really clean. I’ve always made sure my kids
had everything they need.”
Plaintiff said that her son’s grandparents “should have sixty to a hundred thousand
dollars” from her son’s dad but they won’t give the money to her son because he does not want
to go to college. “I feel so guilty. I didn’t hire an attorney.” Plaintiff reported that her mother
abused her as a child and that she had been raped but had never told anyone about that. The
rapist was her boyfriend at the time and they had been together for 14 years. “The man I’m
with now is Patty’s brother. He’s a really good man.” Plaintiff reported having been suicidal.
She said her anxiety started a few months after her son’s father died (or about 12 years
earlier). When an anxiety attack “comes on full fledged, it will take me down. I can’t function
at all.” Her last anxiety attack was about five months earlier. “I have anxiety all the time.
Sometimes it’s overwhelming.” She said, “Effexor for the most part does what it is supposed to
do.” She said she does not want other people around her. “I don’t care about nothin’, except
my kids.” Plaintiff admitted having smoked two packs of cigarettes a day when she was
pregnant with her daughter.
Plaintiff said that she used to drink a lot. “I wouldn’t say I was a alcoholic. Three times
a week. I had to go out and socialize. Drinking came along with it. Mainly drink beer,
six, or seven, maybe eight in a night.” She said she has never used methamphetamine, but she
knows more people who use than who don’t.
Capabilities: Michelle admitted to reading the newspaper. She replied about cooking,
“Um, when I can. My son and Jerry cooks a lot. I can’t stand for long periods of time,
because my legs go numb.” Michelle replied, “Yeah, I do laundry. My daughter helps
me.” She replied about shopping, “Oh no, absolutely not. If I can go in and grab one
thing I will. I’m a forward person. I’ll tell them to get out of the way. My sisters go
shopping for me. People act stupid, like they don’t have no brains. Like Wal-Mart you
spend an hour in line waiting to check out. I can’t handle it. I go to Dollar store or
Green Hills. This world is way too populated.” . . .
Michelle replied about what she does in her spare time, “(I) listen to music, probably
the most, watch TV, play with my daughter. We play dolls a lot. I read to her. I don’t
like getting out of the house. I’ve seen the administrative law judge in November. They
said I can’t work. I don’t understand why I’m still seeing doctors. I would rather work.
I would make more money. My anxiety is so bad, but I need help. I don’t feel like it’s
Michelle appears able to understand and remember most oral and written instructions.
She may have a moderate degree of difficulty with more complex written instructions.
She probably will have problems on some days being able to focus on tasks. She appears
able to sustain concentration and persist with a task, although she probably will not be
able to reliably perform a task. She was able to attend to and concentrate on the
interview, which lasted approximately 1.5 hours. She was able to sit without complaint
or apparent discomfort for this period of time. She did not appear to have any difficulty
with gross motor functioning or coordination in walking to and from the examiner’s
office. She appears to have a moderate degree of difficulty with social interaction and
adapting to new environments. She appears able to manage money.
Mental Status: Michelle was oriented. She was alert. She was cooperative. Her affect
was flat. She cried several times when reporting her personal history. She appeared to
be somewhat depressed. . . . She did not appear to be anxious. She reported a history of
at least 2 anxiety attacks. . . . Her cognitive ability appeared to be low average, and her
fund of knowledge appeared to be below average. . . . Her attention and concentration
were good. . . .
Dr. Taylor assessed Major Depressive Disorder, recurrent moderate; Panic Disorder by
history; nicotine dependence, physical abuse of a child and physical abuse of an adult. He
found that she has “some schizoid features.” He assessed a GAF of 60.
Prognosis: Michelle will probably not attempt to secure employment. Her depression
and anxiety do not appear to be debilitating. She is not in counseling and has not had
the benefit of psychotherapy. Counseling may help relieve some of her symptoms of
depression and anxiety. Michelle appears to be impatient and intolerant and may not
complete counseling, or obtain the full benefit of counseling by participating fully. . . .
She has anger, intolerance, and disdain of the general public, which limits her ability to
interact socially. She also appears to have distrust of authority figures.
On January 28, 2011, Dr. Taylor completed a Medical Source Statement - Mental (Tr.
at 429-431). He found that plaintiff had no restriction in her ability to understand, remember
and carry out simple instructions. She had mild restriction in the ability to make judgments on
simple work-related decisions. She had moderate restriction in her ability to understand,
remember, and carry out complex instructions and the ability to make judgments on complex
work-related decisions. He found that plaintiff would have a moderate restriction in her
ability to interact appropriately with the public, supervisors, coworkers, usual work situations
and changes in a work routine or setting. All of this was due to plaintiff’s multiple sclerosis,
depression and anxiety.
FINDINGS OF THE ALJ
Administrative Law Judge William Horne entered his opinion on March 24, 2011 (Tr.
at 19-29). Plaintiff’s last insured date is June 30, 2008 (Tr. at 38).
Step one. Plaintiff has not engaged in substantial gainful activity since her alleged onset
date (Tr. at 20).
Step two. Plaintiff suffers from the following severe impairments: multiple sclerosis;
obesity; major depressive disorder, recurrent, moderate; and history of panic disorder (Tr. at
Step three. Plaintiff’s impairments do not meet or equal a listed impairment (Tr. at 24).
Step four. Plaintiff retains the residual functional capacity to perform sedentary work,
i.e., lifting no more than 10 pounds, sitting for 6 hours per day, standing or walking 2 hours
per day, needs a sit/stand option, cannot do repetitive movements of the neck or repetitive
overhead reaching or lifting with the upper extremities. She can do no work above shoulder
level. She can occasionally bend and climb stairs. She cannot crawl, kneel, crouch or squat.
She can do no lifting from floor level. She is limited to simple, routine and repetitive work in a
relatively stress-free work environment with limited contact with the general public and
coworkers (Tr. at 26). With this residual functional capacity, plaintiff cannot perform any of
her past relevant work (Tr. at 27).
Step five. Plaintiff is capable of working as a touch-up screener, a packager, or a
batcher, all of which are available in significant numbers.
BRIDGE BETWEEN EVIDENCE AND RFC
Plaintiff argues that the ALJ committed error in formulating plaintiff’s residual
functional capacity after having merely summarized the medical evidence and without
providing a “bridge” between the evidence and the RFC by discussing how much weight he
gave to each of the opinions in the record (citing SSR 96-8p). Plaintiff points out that there are
only two opinions in the record (which are both consultative opinions -- Dr. Bingham
(physical) and Dr. Taylor (mental).
SSR 96-8p reads in part as follows:
Symptoms. In all cases in which symptoms, such as pain, are alleged, the RFC
Contain a thorough discussion and analysis of the objective medical and other
evidence, including the individual’s complaints of pain and other symptoms and
the adjudicator’s personal observations, if appropriate;
* Include a resolution of any inconsistencies in the evidence as a whole; and
* Set forth a logical explanation of the effects of the symptoms, including pain, on
the individual’s ability to work.
The RFC assessment must include a discussion of why reported symptom-related
functional limitations and restrictions can or cannot reasonably be accepted as
consistent with the medical and other evidence. In instances in which the adjudicator
has observed the individual, he or she is not free to accept or reject that individual’s
complaints solely on the basis of such personal observations.
Medical opinions. The RFC assessment must always consider and address medical
source opinions. If the RFC assessment conflicts with an opinion from a medical source,
the adjudicator must explain why the opinion was not adopted.
Interestingly, in this case the psychologist who examined plaintiff at the request of
Disability Determinations, Dr. Taylor, found that plaintiff’s “depression and anxiety do not
appear to be debilitating” and his Medical Source Statement - Mental based plaintiff’s
limitations on multiple sclerosis in addition to anxiety and depression. In fact, the form asks if
“any other capabilities [are] affected by the impairment?” and Dr. Thomas checked “yes” and
wrote “sustained physical ability due to M.S.” (Tr. at 430). The doctor specializing in
occupational medicine, Dr. Bingham, was asked to complete a Medical Source Statement Physical and wrote, “I feel this examinee’s primary barrier to competitive labor market is
anxiety.” (Tr. at 414). Therefore, both doctors who offered an opinion found that plaintiff’s
difficulties with employment would come from the one thing that doctor was not asked to
evaluate and about which he is not a specialist.
The ALJ summarized the findings of both Dr. Taylor and Dr. Bingham, after having
spent considerably more time discussing plaintiff’s treatment records and her testimony:
Other medical evidence that belies allegation of a disabling mental condition for
claimant is the consultative psychological evaluation of January 20, 2011. Claimant, at
that time, reported being depressed and having anxiety attacks. Dr. Taylor, the
consultative psychologist, reported then that claimant denied any counseling and stated
“No, I probably need some.” However, she indicated that when she was at Family
Guidance Center, they had wanted her to have a case manager and since she told them
that she did not need a babysitter [her reference to a case manager], that mental facility
had dropped her. Additionally, claimant stated that mental health sources at the above
facility had advised her that everybody on Medicaid had to have a case manager.
Dr. Taylor noted that claimant did not appear to be anxious, albeit she reported a
history of at least two anxiety attacks. Her speech was intelligible and her responses
were appropriate for content and context. Her thought process was logical and her
cognitive ability appeared to be low average, with her fund of knowledge appearing to
be below average. She did not exhibit any delusions or perceptual distortion and she
denied auditory hallucinations. She did not report any obsessions or compulsions and
she did not report any phobias. Her attention and concentration were good and her
reliability and credibility appeared to be fairly good. Her insight was fair and her
memory not completely intact. Her judgment did not appear to be impaired.
Overall, Dr. Taylor assessed claimant with a major depressive disorder, recurrent,
moderate, and a panic disorder, by history. He also assessed claimant with a GAF rating
of 60 at that time, which is indicative of “moderate” mental symptoms, according to the
Global Assessment of Functioning (“GAF”) Scale. Dr. Taylor further noted that
claimant’s depression and anxiety did not appear to be debilitating. He stated that
claimant was not in counseling and she had not had the benefit of psychotherapy. Dr.
Taylor indicated then that counseling may help relieve some of claimant’s symptoms of
depression and anxiety, albeit he noted that claimant appeared to be impatient and
intolerant and might not complete counseling.
(Tr. at 23-24).
Dr. Bingham, the consultative physician, noted that claimant would be able to sit 6 of 8
hours, stand and walk 4 of 8 hours, and lift 30 pounds occasionally and 10 to 20
pounds frequently. Pushing and pulling would be unrestricted other than that as
indicated for lifting and carrying. He further noted that due to claimant’s paresthesia,
claimant would be restricted from climbing ladders and balancing at unprotected
heights, with no particular contra-indications to bending, stooping, kneeling,
crouching or crawling. Because of poor neck mobility, caution should be used with
driving. Additionally, Dr. Bingham stated that paresthesia might make tolerating heat,
cold and vibrations difficult.
(Tr. at 25-26).
When the ALJ determined plaintiff’s residual functional capacity, he indicated that she
was limited to sedentary work, even though most if not all of her past work (whether
substantial gainful activity or not) was at a higher exertional level (working in restaurants and
nursing homes or other medical facilities). He noted plaintiff’s testimony about difficulty
standing and walking:
With respect to her own assessment of her residual functional capacity, claimant stated
that she could lift 10 to 15 pounds, but not very well with the left dominant hand. She
also noted that she could not walk more than 1/2 block and she could not stand for
more than 10 minutes.
(Tr. at 21).
During the hearing, the ALJ described the reasons for each limitation in his
hypothetical: Because of plaintiff’s history of being treated by a psychiatrist, he limited her to
simple, repetitive, routine work that is “as stress-free as possible.” Because of plaintiff’s
testimony about a fear of being around people, he limited her contact with the public and coworkers. Because she says MS affects her neck, he limited her to no repetitive movement of the
neck. Because plaintiff testified that her MS affects her arms and shoulders, he limited her to
no repetitive overhead lifting or reaching and no work above shoulder level. Because plaintiff
was technically obese, he limited her to only occasional bending and stair climbing; no
crawling, kneeling, crouching, squatting, or lifting from floor level; and work which would
permit a sit-stand option. And finally, because hot humid weather can exacerbated symptoms
of MS, he included in the hypothetical an in ability to work in hot humid conditions (Tr. at 8790). It is clear that the ALJ’s residual functional capacity for the most part came from
plaintiff’s own testimony. There were parts of plaintiff’s testimony which the ALJ discredited;
however, all of the restrictions in the RFC were made because of her own description of her
Both parties have noted that the ALJ’s RFC is more restrictive than that found by either
of the doctors who completed a Medical Source Statement. Clearly this is why.
Plaintiff argues, however, that the ALJ’s opinion is erroneous “[f]irst, because he failed
to base the RFC upon the substantial evidence of the record” and second, because he did not
“provide a logical bridge between the medical evidence and the result” citing Daniel v.
Massanari, 167 F. Supp. 2d 1090 (D. Neb. 2001), and Kelly v. Callahan, 133 F.3d 583 (8th
Cir. 1988). Plaintiff’s argument is without merit.
Daniel v. Massanari did not discuss any bridge or nexus requirement, and SSR 96-8p
(quote above) does not explicitly require any such thing. In Kelly v. Callahan, the court of
appeals criticized the ALJ for failing to address the opinion of a treating physician which not
only corroborated the claimant’s allegations but was consistent with the other evidence in the
record (of which there apparently was not much, with the exception of the ignored doctor’s
records). In that case the ALJ also stated that a doctor is not permitted to provide an opinion as
to the number of hours a claimant can work each day, and the court of appeals pointed out
that such opinions are not only permitted but encouraged. Neither of those cases support
plaintiff’s argument that a particular bridge or nexus is required before an ALJ has escaped a
I have been unable to find any Supreme Court case, Eighth Circuit Case, or Western
District of Missouri case that requires such a bridge or nexus when an ALJ assesses a claimant’s
residual functional capacity. Although Judge Posner, from the Seventh Circuit Court of
Appeals, has been quoted by some courts in other jurisdictions with respect to such a nexus,
this court is not bound by those opinions but is required to follow the case law of the Western
District of Missouri, the Eighth Circuit Court of Appeals, and the Supreme Court of the United
The ALJ is not required to provide each limitation in the residual functional capacity
assessment immediately followed by a list of the specific evidence supporting this limitation.
See SSR 96-8p. Such would not only be anathema to a finding based on “all of the relevant
evidence,” but would result in overly lengthy decisions containing duplicative discussions of
the same evidence in multiple sections. McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000).
Such a requirement for duplicative and exacting discussion of every piece of evidence would
only add further delay to the current backlog of cases awaiting decision by an ALJ, a backlog
growing by the day. As the Supreme Court has stated, “[t]he disability programs administered
under Titles II and XVI are of a size and extent difficult to comprehend,” Heckler v. Day, 467
U.S. 104, 106 (1984), and “[t]he need for efficiency is self-evident.” Barnhart v. Thomas, 540
U.S. 20, 28-29 (2003) (internal quotations omitted).
The ALJ found that plaintiff can lift no more than 10 pounds. Plaintiff testified that she
could lift at least 8 pounds (a gallon of milk), and later said that she could lift 10 to 15 pounds.
Plaintiff has no basis for arguing with this part of the ALJ’s RFC finding as it is consistent with
her own testimony.
The ALJ found that plaintiff can sit for 6 hours per workday. Plaintiff testified that she
could sit for an hour at a time (and that was after the ALJ reminded her she had been sitting for
an hour at that point). Plaintiff refused to complete the daily activities questionnaire as
requested by Disability Determinations. C. Arnold observed that plaintiff had no difficulty
sitting. Dr. Bingham found that plaintiff could sit for 4 hours at a time and for 6 hours per
workday. And Dr. Taylor observed that after a one and a half hour long interview, plaintiff
had displayed no signs of discomfort with sitting. The evidence clearly supports the ALJ’s
finding with respect to sitting, and the ALJ even threw in a sit/stand option based on nothing
more than plaintiff’s testimony -- again, something about which she cannot now complain.
The ALJ found that plaintiff can stand or walk for 2 hours per workday. Plaintiff
testified that she could stand for an hour at a time (after first testifying that she could stand for
10 minutes at the most). She said her difficulty with standing was mental, not physical. She
testified she could walk a half a block due to pain; however, she was taking no pain
medication. Again, she refused to provide the daily activities questionnaire to provide any
other information. C. Arnold observed that plaintiff had no difficulty with standing or
walking. Dr. Sharma, plaintiff’s treating neurologist, observed many times that plaintiff was
able to walk with good stability. Dr. Bingham found that plaintiff could stand or walk for 2
hours at a time and for 4 hours total per workday. The ALJ’s finding with respect to plaintiff’s
ability to stand and walk is clearly supported by the credible evidence in the record.
Plaintiff testified that her MS hurts her neck, so the ALJ found that she could do no
work requiring repetitive movement of the neck. This is despite the fact that x-rays of her
cervical spine on November 6, 2008, were normal, and an MRI of her cervical spine on
October 16, 2008, was normal. The only abnormality was found by Dr. Bingham on
November 30, 2010, when he found decreased range of motion. This was an examination
done in connection with plaintiff’s disability application, and the range of motion
measurement is determined by when a patient says a certain movement begins to hurt.
Obviously the ALJ gave plaintiff the benefit of the doubt on this function.
The ALJ limited plaintiff to work requiring no repetitive overhead reaching and no
work above shoulder level. The only evidence of such a limitation in this record is plaintiff’s
testimony that she reaches overhead only if she has to because even though she can do it, it
hurts when she does. Because these restrictions are based on plaintiff’s own testimony, she has
no basis for challenging them.
The ALJ found that plaintiff can only occasionally bend and climb stairs. This was based
on her being technically obese. Plaintiff did not testify to any problems bending, and only Dr.
Bingham mentioned bending (and found that she had no problem with it); however, due to
plaintiff’s weight, this functional limitation was put in place. The same goes for climbing
stairs, except that plaintiff herself testified that she can climb stairs and does climb them, but
tries to avoid that activity because her knees crack and hurt. Therefore, the ALJ’s RFC with
respect to stair climbing is consistent with plaintiff’s testimony.
The ALJ found that plaintiff could never crawl, kneel, crouch or squat (again due to her
obesity). Plaintiff mistakenly stated (twice) in her brief that the ALJ found that plaintiff could
occasionally perform these activities.
The ALJ found that plaintiff could perform no more than simple, repetitive, routine
work in a relatively stress-free environment. This was based on plaintiff’s history of anxiety,
despite the fact that her anxiety had been managed conservatively with the same dose of the
same medication for years, no counseling, and no psychiatric treatment other than prescription
medication which had been prescribed by a nurse practitioner for the entire year before the
The ALJ limited plaintiff’s contact with coworkers and the general public based on
plaintiff’s testimony that she does not like to be around people.
The parties agree that the ALJ’s RFC is more restrictive than anything found by the
doctors who saw her or reviewed her records. A review of the record shows that the greater
restrictions are based on plaintiff’s own subjective complaints. When an ALJ assesses a residual
functional capacity in accordance with a claimant’s own allegations, I fail to see how she can
later claim the ALJ committed reversible error.
The RFC is a determination based upon all the record evidence. Pearsall v. Massanari,
274 F.3d 1211, 1217-1218 (8th Cir. 2001) (citing Anderson v. Shalala, 51 F.3d 777, 779 (8th
Cir. 1995)); Dykes v. Apfel, 223 F.3d 865, 866-867 (8th Cir. 2000) (citing 20 C.F.R. §§
404.1545 and 416.945; SSR 96-8p at pp. 8-9). Although it is a medical question, the RFC
findings are not based only on “medical” evidence, i.e., evidence from medical reports or
sources; rather an ALJ has the duty at step four of the sequential analysis to formulate an RFC
based on all the relevant, credible evidence of record. McKinney v. Apfel, 228 F.3d 860, 863
(8th Cir. 2000) (the Commissioner must determine a claimant’s RFC based on all of the
relevant evidence, including the medical records, observations of treating physicians and
others, and an individual’s own description of his limitations); Dykes v. Apfel, 223 F.3d at
866-867 (the RFC is a determination based upon all the record evidence but the record must
include some medical evidence that supports the RFC finding). See also SSR 96-8p, quoted
I find that the RFC assessed by the ALJ in this case is based on the substantial evidence in
the record and where it deviates from the findings of the doctors, it is more restrictive and is
due to plaintiff’s subjective complaints of her own limitations. Therefore, plaintiff’s motion for
judgment or remand on this basis is denied.
CREDIBILITY OF PLAINTIFF
Plaintiff argues that the ALJ erred in finding that plaintiff’s testimony about her mental
limitations was not credible.
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, 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 specific reasons listed by the ALJ for discrediting plaintiff’s subjective complaints of
disability are as follows:
Regarding her mental condition, claimant testified that she had been in mental health
treatment for her depression and anxiety for 15 years. Symptoms included an inability
to be around people or leave her home. Additionally, claimant stated that she
experienced crying spells on a daily basis, albeit they did not last long. Reference was
also made to problems sleeping because of mind racing. Although there was reference
to the medical records which showed an improvement in claimant’s mental condition,
claimant testified that her anxiety had worsened. When asked why she had not
undergone any type of mental health counseling, claimant testified that she had tried
counseling in the past, but it had not helped. She also noted that her present
psychotropic medication (Effexor) was prescribed to her by her treating family doctor.
Claimant further referred to panic attacks wherein she would become sweaty and her
mind would race. Additionally, she noted that she could not sleep, eat or swallow
during these panic attacks, or be around people. Overall, she stated that that was
another reason she had not gone to counseling, i.e., because of her inability to be with
The Administrative Law Judge finds claimant’s subjective allegations of disability not
credible or supported by the totality of the evidence. . . .
Regarding claimant’s employment record, the undersigned notes that an earnings query
marked as Exhibit 5D shows an inconsistent work history for claimant, with a
fluctuation in reported earnings, all of which suggests that she has been out of the work
force at times for reasons other than disability, thus, reflecting a poor motivation
to work on her part. Moreover, it is noted that claimant might have no motivation to
work since she must care for a 3 year old child.
With respect to activities of daily living claimant testified that she had two children,
ages 3 and 17. She noted that she took her 3 year old to the daycare center. When
asked whether she was able to handle her own personal care, claimant stated that she
was, except on those days when she was having a flare up of her MS or when her
“nerves” were “bad.” Regarding cooking, claimant testified that her sisters helped out
with this. Claimant noted that she was able to wash a few dishes and do a load of
laundry; however, the majority of the household chores were carried out by her 17
year old son. Claimant further testified that she was able to drive an automobile, albeit
she did not like to drive because of her anxiety. She stated that she occasionally went to
her son’s school activities when absolutely necessary, but hated going to such events.
When asked whether she went shopping, claimant replied “sometimes,” depending on
how she felt, and then she went only for small items.
At the consultative psychological evaluation in January 2011, claimant reported that
she read the newspaper and she did some cooking “Um, when I can.” She further
noted that she did the laundry, with her daughter’s help. When asked about shopping,
claimant replied “Oh, no, absolutely not. If I can go in and grab one thing I will. I’m a
forward person. I’ll tell them to get out of the way.” Claimant reported that her sisters
shopped for her. Additionally, claimant noted that in her spare time, she listened to
music, watched television, and played with her daughter.
While a claimant need not be bedridden to be found disabled, her daily activities can be
seen as inconsistent with subjective symptoms precluding all types of work. The
undersigned, overall, finds that claimant’s activities during the period at issue do not
support a finding that her symptoms would preclude all competitive employment.
The regulations state that an Administrative Law Judge may properly discount
subjective complaints where there are inconsistencies in the record as a whole (20 CFR
§§ 404.1529 and 416.929). Although claimant testified to some severe mental
symptoms at the time of the hearing, she has had very little mental health treatment
during the period at issue. Specifically, there are no records of any ongoing
psychotherapy or psychiatric hospitalizations for claimant during said period. It is also
noted that claimant has had very sporadic medical treatment with respect to her
physical complaints. The record does not point to any frequent hospital emergency
room visits or inpatient hospitalizations for claimant during the period at issue.
It is noted that there were some references by claimant at the hearing to some medical
noncompliance on her part. Specifically, she testified that although her treating
physician had recommended seeking help at a pain center, claimant noted that she had
not yet followed through with that recommendation. Additionally, she testified that she
did not want to go to mental health counseling as recommended because she would be
assigned a case manager and she did not want that. Later in the hearing, claimant
stated that she had not gone to any counseling because of her inability to be around
The record, overall, points to very sporadic medical treatment for claimant for her
alleged physical and mental complaints. Additionally, although recommendations have
been made to her with respect to treatment for her alleged disabling pain and mental
symptoms, she has not followed through with such. The regulations specifically state
that remediable impairments that persist due to failure to follow prescribed treatment
generally are disfavored as a basis for “disability:” (20 CFR §§ 404.1530 and 416.930).
Additionally, case law has held that the failure to follow prescribed remedial medical
treatment without good cause is a basis for denying an application for benefits.
Pursuant to the regulations, an impairment or combination of impairments to be
disabling . . . must be established by medical evidence consisting of signs, symptoms and
laboratory findings (20 CFR §§ 404.1528 and 416.928). The medical evidence must
therefore be carefully considered to see if it establishes an “underlying medical
condition or conditions” that substantiate claimant’s complaints and or restriction from
With respect to claimant’s mental condition, the record points to minimal mental health
treatment for clamant during the period at issue. As previously noted, there is no
consistent psychotherapy or psychiatric hospitalizations for claimant during said
period. Moreover, the few mental health records from Family Guidance Center reflect
essentially benign mental findings for clamant. Specifically, in May 2008, claimant
reported doing “good” and not needing her Vistril [sic]. Claimant noted then that the
Effexor was “doing good.” Overall, claimant reported that she was feeling happier, and
her sleep and appetite were ok. On exam, claimant was neally dressed, pleasant and
cooperative. Her mood was euthymic and she reported no suicidal or homicidal
ideation. The diagnosis then was of major depressive disorder.
The mental health records from Family Guidance Center through December 2008
continue to show benign mental findings for claimant. In December 2008, it was
reported that claimant was doing well at that time. She reported no suicidal or
homicidal ideation, no crying or anhedonia. She did report feeling anxious and
occasionally had a “low” mood, but she stated that she was handling it well. The
mental health visit for April 2009 again showed that claimant was “doing well.” She
noted that she had anxiety about her MS, but that it was controlled. Claimant was
encouraged at that time to start therapy to help her with stresses.
Other medical evidence that belies allegations of a disabling mental condition for
claimant is the consultative psychological evaluation of January 20, 2011. Claimant, at
that time, reported being depressed and having anxiety attacks. Dr. Taylor, the
consultative psychologist, reported then that claimant denied any counseling and stated
“No, I probably need some.” However, she indicated that when she was at Family
Guidance Center, they had wanted her to have a case manager and since she told them
that she did not need a babysitter, that mental facility had dropped her. Additionally,
claimant stated that mental health sources at the above facility had advised her that
everybody on Medicaid had to have a case manager.
The ALJ adequately discussed the Polaski factors and although he discredited plaintiff’s
allegations of disabling pain and mental symptoms, he gave her the benefit of the doubt in
formulating her RFC as discussed above.
Plaintiff testified that she was unable to balance, that she was in constant pain, that she
is unable to concentrate, and that she sleeps for hours many days each week. The medical
record clearly contradicts those allegations. In September 2008 plaintiff reported no problems
with balancing. In October 2008 Dr. Sharma observed that plaintiff was able to walk with
good stability. Later that month, he again noted that plaintiff walked with good stability. Two
days after Dr. Sharma’s observation, plaintiff told Dr. Daud that she had had poor balance and
had fallen. Plaintiff had not reported this to her neurologist during the two appointments she
had earlier that month. Dr. Daud did not note any observations of a problem with plaintiff’s
balance. In January 2009 plaintiff was observed to be able to walk with good stability. In
February 2009 plaintiff was noted to be able to walk normally with good stability. In
November 2010, Dr. Bingham noted that plaintiff had a normal fluid gait. There is insufficient
evidence of a problem with balance that would affect plaintiff’s RFC any more than reflected in
the ALJ’s assessment.
In July 2009 plaintiff reported that her low back pain was better. Dr. Sharma indicated
that conservative measures were recommended. Plaintiff never took any pain medication, she
did not complain of pain to doctors who could have treated her for pain, and her excuse that
she did not do so because she does not like to be on medication is implausible. The ALJ
properly discounted this allegation.
In March 2010, plaintiff “denied sleep disturbances.” There is no other reference to
sleep in any medical record. Plaintiff’s allegation that she sleeps for hours each day may be
true; however, it is clearly not based on any impairment but rather based on her own choice.
Plaintiff alleges a disabling mental impairment that should have been given more
weight by the ALJ. Plaintiff is not at all clear about what limitations she has due to a mental
impairment. In her brief she points out that she testified to crying spells, that she does not like
to go out in public, that she does not like to deal with people, and that she has an anxiety
disorder and Major Depressive Disorder. First, plaintiff’s diagnoses of Major Depressive
Disorder and anxiety disorder are not relevant -- it is the functional limitations caused by these
conditions that are relevant in a disability case. The ALJ accounted for plaintiff’s alleged
mental limitations by restricting her to simple, routine, repetitive work in a stress-free
environment and with little contact with the public and co-workers. The only thing left in
plaintiff’s argument is her crying spells.
In October 2007 plaintiff told her psychiatrist that she had no problems with crying. In
January 2008 plaintiff told her psychiatrist that she had no problems with crying. In May
2008 plaintiff told her psychiatrist that she had no problems with crying. In August 2008
plaintiff told her psychiatrist that she had no problems with crying. In October 2008 plaintiff
told her psychiatrist that she was doing well and plaintiff was observed to have a “good mood.”
In December 2008 plaintiff told her psychiatrist that she had no problems with crying. In
January 2009 plaintiff told Dr. Sharma, a neurologist, that she was “cryful with life” but she
also said that she was taking Effexor and it was helping her. In April 2009 plaintiff told her
psychiatrist that she had no problems with crying. Plaintiff was noted to become tearful
during her interview with Dr. Bingham in connection with her application for disability
Therefore, the record shows that although plaintiff may have cried on a few occasions
over a many-year period, it was apparently not a problem for her because every time she saw
her treating psychiatrist she denied having any problems with crying.
Plaintiff’s argument that she did not seek mental health treatment because of her mental
condition is without merit. I am familiar with the law in that regard and have seen a few of
those cases during my career. This is not one of them. Plaintiff did indeed seek mental health
treatment, however, never beyond getting a prescription for Effexor. The medication worked
well for her. She did not increase the dosage even when her psychiatrist told her she could.
She said it was working fine. She did not use Vistaril as an added medication because she felt
she was handling her symptoms well without it. She did not participate in counseling. She
was routinely noted by her psychiatrist to be doing well, each mental symptom was addressed
by Dr. Jaffri and plaintiff was noted to be without symptoms. After a while plaintiff was able to
get prescriptions for Effexor from her nurse practitioner, and that continued to be sufficient to
take care of her Major Depressive Disorder and any anxiety disorder.
Based on all of the above, I find that the substantial evidence in the record supports the
ALJ’s credibility determination. The ALJ discredited plaintiff on only disabling pain, the need to
sleep many hours each day during the day, and debilitating mental symptoms. He properly did
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 19, 2013
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