Butler v. Astrue
Filing
19
ORDER denying plaintiff's motion for judgment and affirming the decision of the Commissioner. Signed on 1/30/2012 by Magistrate Judge Robert E. Larsen. (Wilson, Carol)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
BARBARA BUTLER,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant.
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Case No.
10-3522-CV-S-REL-SSA
ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Barbara Butler 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 failing to give proper
weight to the opinion of plaintiff’s treating physician, in failing to give proper weight to
plaintiff’s testimony regarding her seizure disorder, and in refusing to allow counsel to
question the vocational expert after listening to medical expert Dr. Lipton. I find that the
substantial evidence in the record as a whole supports the ALJ’s finding that plaintiff is not
disabled. Therefore, plaintiff’s motion for summary judgment will be denied and the decision
of the Commissioner will be affirmed.
I.
BACKGROUND
On April 10, 2008, plaintiff applied for disability benefits alleging that she had been
disabled since December 31, 2000. Plaintiff’s disability stems from seizures, cataracts, and
allergies. Plaintiff’s application was denied on May 28, 2008; and on October 22, 2009, a
hearing was held before an Administrative Law Judge. The hearing reconvened on January 15,
2010. On March 26, 2010, the ALJ found that plaintiff was not under a “disability” as defined
in the Act. On May 11, 2010, the Appeals Council denied plaintiff’s request for review.
Therefore, the decision of the ALJ stands as the final decision of the Commissioner.
II.
STANDARD FOR JUDICIAL REVIEW
Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for judicial review of a “final
decision” of the Commissioner. The standard for judicial review by the federal district court is
whether the decision of the Commissioner was supported by substantial evidence. 42 U.S.C. §
405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971); Mittlestedt v. Apfel, 204 F.3d 847,
850-51 (8th Cir. 2000); Johnson v. Chater, 108 F.3d 178, 179 (8th Cir. 1997); Andler v.
Chater, 100 F.3d 1389, 1392 (8th Cir. 1996). The determination of whether the Commissioner’s decision is supported by substantial evidence requires review of the entire record,
considering the evidence in support of and in opposition to the Commissioner’s decision.
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951); Thomas v. Sullivan, 876 F.2d 666,
669 (8th Cir. 1989). “The Court must also take into consideration the weight of the evidence
in the record and apply a balancing test to evidence which is contradictory.” Wilcutts v. Apfel,
143 F.3d 1134, 1136 (8th Cir. 1998) (citing Steadman v. Securities & Exchange Commission,
450 U.S. 91, 99 (1981)).
Substantial evidence means “more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson
v. Perales, 402 U.S. at 401; Jernigan v. Sullivan, 948 F.2d 1070, 1073 n. 5 (8th Cir. 1991).
However, the substantial evidence standard presupposes a zone of choice within which the
decision makers can go either way, without interference by the courts. “[A]n administrative
decision is not subject to reversal merely because substantial evidence would have supported
an opposite decision.” Id.; Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988).
III.
BURDEN OF PROOF AND SEQUENTIAL EVALUATION PROCESS
An individual claiming disability benefits has the burden of proving she is unable to
return to past relevant work by reason of a medically-determinable physical or mental
impairment which has lasted or can be expected to last for a continuous period of not less than
2
twelve months. 42 U.S.C. § 423(d)(1)(A). If the plaintiff establishes that she is unable to
return to past relevant work because of the disability, the burden of persuasion shifts to the
Commissioner to establish that there is some other type of substantial gainful activity in the
national economy that the plaintiff can perform. Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir.
2000); Brock v. Apfel, 118 F. Supp. 2d 974 (W.D. Mo. 2000).
The Social Security Administration has promulgated detailed regulations setting out a
sequential evaluation process to determine whether a claimant is disabled. These regulations
are codified at 20 C.F.R. §§ 404.1501, et seq. The five-step sequential evaluation process used
by the Commissioner is outlined in 20 C.F.R. § 404.1520 and is summarized as follows:
1.
Is the claimant performing substantial gainful activity?
Yes = not disabled.
No = go to next step.
2.
Does the claimant have a severe impairment or a combination of impairments
which significantly limits her ability to do basic work activities?
No = not disabled.
Yes = go to next step.
3.
Does the impairment meet or equal a listed impairment in Appendix 1?
Yes = disabled.
No = go to next step.
4.
Does the impairment prevent the claimant from doing past relevant work?
No = not disabled.
Yes = go to next step where burden shifts to Commissioner.
5.
Does the impairment prevent the claimant from doing any other work?
Yes = disabled.
No = not disabled.
IV.
THE RECORD
The record consists of the testimony of plaintiff, medical expert Ross Elliott Lipton,
M.D., and vocational expert Terri Crawford, in addition to documentary evidence admitted at
3
the hearing.
A.
ADMINISTRATIVE REPORTS
The record contains the following administrative reports:
Earnings Record
The record establishes that plaintiff earned the following income from 1973 through
2008:
1973
1974
1975
1976
1977
1978
1979
1980
1981
1982
1983
1984
1985
1986
1987
1988
1989
1990
$ 1,516.05
881.40
600.88
0.00
657.60
1,288.70
1,644.78
13,161.83
15,506.38
18,051.30
20,524.56
22,955.00
24,611.25
25,572.80
26,605.24
27,510.20
29,170.20
31,060.30
1991
1992
1993
1994
1995
1996
1997
1998
1999
2000
2001
2002
2003
2004
2005
2006
2007
2008
$ 31,889.20
34,940.24
33,183.20
34,577.00
31,980.00
6,820.51
4,466.31
9,721.50
12,642.74
8,362.81
2,240.00
0.00
3,813.01
1,259.20
0.00
188.84
299.00
0.00
(Tr. at 232, 240).
Supplemental Questionnaire
In a supplemental questionnaire completed on May 1, 2008, plaintiff was asked for the
medical condition that keeps her from working, and she answered seizures and cataracts (Tr.
at 256). She did not indicate that back or neck pain prevented her from working. She
reported that despite her impairments, she can do laundry, do dishes, make beds, change
sheets, vacuum, sweep, take out the trash, go to the post office, and care for her own personal
4
needs (Tr. at 259, 260). She cannot iron1 because she cannot see and is afraid she will get
burned if she has a seizure. She is able to shop for 30 to 40 minutes at a time (Tr. at 259). She
can watch a two-hour movie, and the only difficulty she listed was that she gets headaches
after about a half an hour; she did not indicate a difficulty with sitting during that two hours
(Tr. at 260). She reported that no one has advised her not to drive (Tr. at 261).
Work Activity Report
In a work activity report dated May 2, 2008, plaintiff reported that she left her job at
Amateur Softball Association in 2001 because she moved to a different part of St. Louis and did
not want to drive that far for $6 an hour (Tr. at 278). She left her job at Dillards in 2004
because she was hired as Christmas help (Tr. at 279). She left her job at Macy’s in December
2006 because she was hired as Christmas help (Tr. at 277). She left her cashier job at RPCS in
August 2007 because she was making too many mistakes (Tr. at 277).
B.
SUMMARY OF MEDICAL RECORDS
Medical records prior to the relevant time period, show that in May 1997 plaintiff was
involved in a motor vehicle accident (Tr. at 340-41, 346-49). After being released from the
emergency room, plaintiff suffered a seizure (Tr. at 341, 347). She was admitted for
observation, but had no further seizures (Tr. at 347). She was prescribed a week of Dilantin
[anti-seizure medication] and told to follow up with her primary care physician; however,
there is no evidence that she kept that appointment (Tr. at 348).
There is no additional medical evidence until plaintiff was seen in the emergency room
after slipping on wet leaves and falling on her face in October 2003 -- more than six years
after her previous emergency treatment and almost three years after her alleged onset date (Tr.
at 394-424). During that fall, plaintiff got a laceration and contusion of the left cheek with a
1
In a Function Report dated March 28, 2009, plaintiff indicated that she is able to iron (Tr.
at 306).
5
tertiary diagnosis of closed head injury. On admission to the emergency room, plaintiff was
said to have alcohol on her breath (Tr. at 405) and was said to have been wearing eye glasses,
which was consistent with the area of injury described as mild to moderate. She was treated
and released and told to see her regular physician as soon as possible or within the next two to
four days for a check; however, there is no evidence that she did so.
About 2 1/2 years later, in February 2006, plaintiff was treated at the Kitchen Clinic
for a previously broken foot without complete healing (Tr. at 576-577). Plaintiff claimed to
drink alcohol only socially (Tr. at 577). X-rays showed a left foot fracture at the fifth
metatarsal (Tr. at 576). Plaintiff was told to take a multi-vitamin; her Premarin [estrogen];
new medications Zoloft,2 Trazodone3 and Gabitril;4 and Tylenol, ibuprofen and Ultram5 for the
pain associated with the fracture. The records include the following notation: “Stop
smoking!” (Tr. at 572, 576).
Plaintiff returned to the Kitchen Clinic on March 9, 2006, for medication refills and to
see if her foot was healing properly (Tr. at 575). She was still having foot pain but otherwise
was “doing well” (Tr. at 575).
On April 14, 2006, plaintiff was treated for a puncture wound from a drill bit (Tr. at
574). She did not complain of foot pain on this visit or for the rest of the year and the first part
of 2007.
On June 1, 2006, plaintiff was seen at the Kitchen Clinic complaining of a cough and
chest congestion (Tr. at 573). She was still smoking.
2
A selective serotonin re-uptake inhibitor used to treat depression.
3
A serotonin modulator used to treat depression.
4
An anticonvulsant used to treat partial seizures.
5
An opiate agonist used to treat moderate to severe pain.
6
On June 6, 2006, plaintiff was seen at the emergency room complaining of three hours
of rapid heartbeat, lung infection and a swollen calf (Tr. at 539-549). She was there less than
three hours while tests were being done. Twice she unhooked herself from the cardiac
monitors and left her room. The first time she went out to smoke; the second time she said she
was impatient and wanted to leave. After being warned that she could die or suffer permanent
harm, plaintiff left against medical advice. While in the emergency room, plaintiff was given
magnesium as tests revealed she was low on this and other minerals. She had no cardiac
history, but EKG results obtained after she left showed mild prior septal infarct6 of unknown
age. Her lungs were clear, and there was no further mention of her previous calf problem by
plaintiff. At the time she listed depression on her medical history; however, there is no
evidence of treatment for depression other than the one occasion in February 2006 when she
was prescribed antidepressant medication.
On April 2, 2007, plaintiff was seen at Cox Health with headaches (Tr. at 529-537).
She exhibited no motor or sensory deficits, and a head CT was negative (Tr. at 529-530, 538).
She was told to follow up with her doctor or return if her headaches continued (Tr. at 531).
On May 3, 2007, plaintiff was seen in the emergency room at St. John’s (Tr. at 425478, 465). Plaintiff had been drinking heavily since two days earlier, she became dehydrated,
and she had a syncopal episode [fainting]. Plaintiff told the emergency room staff that she had
rapid heartbeat. She continued to be somewhat dehydrated. She was told to drink plenty of
fluids and was sent home with a 24-hour Holter monitor which was normal. It did show some
minor premature ventricular activity very rarely, but not in any abnormal groupings. On May
5, 2007, she was diagnosed with dehydration and syncope [fainting].
6
A localized area of tissue that is dying or dead, having been deprived of its blood supply
because of an obstruction.
7
On May 10, 2007, plaintiff was seen at Cox Hospital emergency room (Tr. at 505511). Plaintiff said she was hit by a group of shopping carts in the Wal-Mart parking lot. Her
side was exquisitely tender. On CT exam she had fatty infiltration of the liver, a liver lesion
which appeared to be fibrotic, and enlarged pancreatic head. Further study of the pancreas
was consistent with chronic pancreatitis, often due to chronic alcohol abuse. She exhibited full
strength, normal gait, and no back tenderness (Tr. at 507). Plaintiff threatened to leave the
hospital against medical advice (Tr. at 523, 525). She had no treating physician at the time
and was set up with Dr. Green for a follow-up appointment.
At no time until August 4, 2007, did plaintiff mention seizure activity or a history of
seizures after her initial 1997 hospitalization. On August 4, 2007, plaintiff was brought to the
emergency room at Cox by ambulance for a seizure (Tr. at 488, 494-496, 502-503). Plaintiff
admitted that she had been drinking alcohol but she said she had only had two drinks. Her
friend described a tonic-clonic (full-body) seizure after she was in bed. Plaintiff said she had
not had a seizure for more than seven to eight years and had not been on seizure medications
for at least four years. Her complaints were headache and backache related to the seizure.
Despite saying she had only had two drinks, blood alcohol level was very high showing alcohol
intoxication at greater than .32 -- over four times the level of intoxication for arrest under the
driving-under-the-influence laws. Alcohol intoxication was the first diagnosis. Plaintiff also
had a urinary tract infection, which was her secondary diagnosis. Seizure was the tertiary
diagnosis. Plaintiff was to see her primary care physician within a week; however, there is no
evidence that she did so.
Plaintiff continued to lose weight during the above period. On September 1, 2007,
plaintiff was found unresponsive and her fiancé suggested that she had a “little bit too much
beer last night” (Tr. at 450). Plaintiff claimed that she drank five beers a day at most, two days
a week (Tr. at 450). However, plaintiff’s mean corpuscular volume (“MCV”) was “quite high”
8
and suggested otherwise (Tr. at 450-451). Her alcohol level was “high at 32” (Tr. at 447,
450). She required transfer to the ICU due to delirium tremens (Tr. at 447, 451). Plaintiff was
assessed with severe alcoholic ketoacidosis,7 alcoholism, delirium tremens,8 and severe
dehydration (Tr. at 447, 451). She was hydrated aggressively and given multi-vitamins, folic
acid and thiamin. In addition, due to alcohol abuse and possible withdrawal-related seizures,
seizure precautions were initiated along with alcohol withdrawal applications. She was
prescribed Ativan as part of “detox” protocol.
All of plaintiff’s symptoms resolved after five to seven days of appropriate nutrition,
mineral supplementation and no alcohol. She had apparently been drinking to such excess
that she had barely been eating or drinking any other fluids. While plaintiff was hospitalized
other testing was done, such as myocardial perfusion imaging, which was entirely normal. All
lung issues were resolved except mild hyperinflation due to years of smoking.
Plaintiff was seen in the emergency room on September 26 and 27, 2007, with a
laceration to her forehead (Tr. at 431-445). Plaintiff said her fiancé told her they were
walking down the street and plaintiff fell to the ground with a seizure (Tr. at 436). Plaintiff’s
fiancé was not in the emergency room when she was evaluated by a doctor (Tr. at 436).
Plaintiff stated that she had not had any alcohol for the past 25 days, or since she was treated
for severe alcoholic ketoacidosis (Tr. at 436). Her blood alcohol test was negative; however, a
urine drug screen was positive for benzodiazepine although plaintiff claimed not to be on any
medication (Tr. at 436, 438). Plaintiff claimed to have had two seizures prior to the last one
7
Usually caused by a recent history of binge drinking, little or no food intake, and persistent
vomiting. Fat is used as fuel. Byproducts of fat breakdown, called ketones, build up in the
body. In high levels, ketones are poisonous.
8
A severe form of alcohol withdrawal that involves sudden and severe mental or nervous
system changes. Delirium tremens can occur when one stops drinking alcohol after a period
of heavy drinking, especially if the person does not eat enough food.
9
that brought her in to the hospital three weeks earlier, when she was treated for alcoholic
ketoacidosis (Tr. at 437). A CT scan of the head and cervical spine were normal (Tr. at 438).
Plaintiff was assessed with seizure disorder, negative alcohol in the system times 25 days since
the last admission, and ischemic electrocardiogram (Tr. at 438). Plaintiff was admitted for a
day while the doctors ruled out a heart attack and coronary artery disease. She was also given
IV Dilantin. Chest x-rays were normal (Tr. at 442). Cardiac stress test was normal (Tr. at
444). Plaintiff’s discharge diagnoses were seizure disorder, recovering alcoholic and scalp
laceration (Tr. at 433). She had no seizures while in the hospital, and her hospital stay was
described as “unremarkable” (Tr. at 433). She was instructed not to drive for six months (Tr.
at 433).
Despite plaintiff’s assertion that she had not had anything to drink prior to her seizure
on September 26, 2007, it appears that plaintiff consumed alcohol the day she went to the
hospital on September 26. On October 6, 2007 -- nine days after her discharge on September
27 -- she was seen at the Kitchen Clinic and claimed that she had not had any alcohol for the
past ten days (Tr. at 567). This means that plaintiff’s last alcohol consumption was September
26, 2007 -- the day she went to the emergency room with a laceration on her forehead after
claiming to have had a seizure and after claiming to have been alcohol-free that day and for
the previous three and a half weeks. Her scalp laceration had healed well and she had the
stitches removed (Tr. at 567). She did not report having had any seizures since her hospital
stay. Her weight had dropped to 89.4 pounds. She was still smoking. She was assessed with
seizure disorder and alcohol dependence. The doctor prescribed pre-natal vitamins to help
plaintiff get proper nutrition despite an improper diet.
On November 16, 2007, plaintiff returned to the Kitchen Clinic to get a refill of
Dilantin which she said she had been out of for the past week (Tr. at 566). She reported
having had no seizures since her September 2007 hospitalization, and the doctor noted that
10
her seizures were “related to ETOH withdrawal?” (Tr. at 566). Plaintiff’s weight was 91.2
pounds.
On December 14, 2007, plaintiff was seen at the Kitchen Clinic for lab results and with
complaints of cold symptoms (Tr. at 565). Plaintiff was still smoking: “not ready to quit” (Tr.
at 565). She was assessed with acute bronchitis, “smoker - not ready to quit”, and “seizure
related to ETOH”.
On December 26, 2007, plaintiff spoke with someone at the Kitchen Clinic and stated
that she was still coughing but had finished her antibiotics (Tr. at 564). The notes indicate that
plaintiff was told to return if her cough persists and to “quit smoking!” (Tr. at 564).
Plaintiff was seen on April 14, 2008, at the Kitchen Clinic for follow up on “presumed
post-traumatic epilepsy” (Tr. at 562). The doctor diagnosed “post-traumatic epilepsy,
generalized convulsive in remission.” Plaintiff’s EEG was normal, and her exam was normal
except she was found to have gait ataxia.9 No alcohol testing was done.
On May 8, 2008, plaintiff was seen at the Kitchen Clinic complaining of a mole she
wanted removed (Tr. at 561, 578). Plaintiff mentioned that she was feeling depressed, and she
was given Zoloft. Plaintiff had previously been diagnosed with chronic obstructive pulmonary
disease related to smoking and had been strongly admonished to quit smoking. On this date
she expressed an interest in quitting and was given medication to quit smoking including
Nicorette. The mole was excised on May 29, 2008 (Tr. at 606).
On May 27, 2008, Elissa Lewis, Ph.D., completed a Psychiatric Review Technique and
found that plaintiff’s mental impairment is not severe (Tr. at 593-603). In support of her
findings, she noted that plaintiff did not allege a mental impairment in her applications for
disability benefits, she did not report any treatment or medications for a mental impairment,
9
An unsteady, uncoordinated walk, employing a wide base and the feet thrown out.
11
her medical records show that she said she was feeling depressed on May 8, 2008, and that she
had done well on Zoloft in the past, and she did not report any functional limitations related to
depression or any other mental impairment (Tr. at 603).
On July 9, 2008, plaintiff was seen at the Kitchen Clinic for a routine physical
examination (Tr. at 713). She reported that her last seizure had been in September 2007 when she was hospitalized for alcoholic ketoacidosis. “No new complaints today.” Plaintiff
did complain of a cataract forming on her right eye. She weighed 92.2 pounds. On exam
plaintiff’s muscle tone was normal, she had full range of motion and normal sensation. Her
gait was normal. Plaintiff continued to smoke. She was referred to an opthomologist.
On Wednesday, August 13, 2008, plaintiff returned to the Kitchen Clinic (Tr. at 712).
She reported that she had had a seizure the previous Sunday (August 10) during which she
“froze up” and had tight fists for about 15 minutes. This was apparently witnessed by her
fiancé. The doctor noted plaintiff smelled “strongly” of alcohol and noted “it’s 11 am!”
Plaintiff claimed to have had alcohol the night before for the first time in six months, and said
that she had consumed four beers. Plaintiff told the doctor that her seizure happened prior to
her alcohol relapse. Plaintiff was told to stop drinking.
On September 16, 2008, plaintiff returned to the Kitchen Clinic for a routine follow up
(Tr. at 707). The doctor wrote “r osteoporosis” but this is listed in the section reserved for
complaints; therefore, it is unclear whether this is a complaint or a finding. Plaintiff was told
to stop smoking and stop drinking. Plaintiff was assessed with anxiety, chronic obstructive
pulmonary disease/smoker, osteoporosis “see above”, and sustained hypertension.
On September 29, 2008, plaintiff had a bone mineral density test done (Tr. at 720).
The indications were listed as alcoholism, amenorrhea [missed menstrual periods], early
menopause, family history of osteoporosis, low body weight, and tobacco use. Plaintiff was
12
considered osteoporotic according to World Health Organization guidelines with a high
fracture risk.
On October 14, 2008, plaintiff had an eye exam and was diagnosed with cataracts (Tr.
at 623-626). She had surgery on October 28, 2008, with good results.
On January 6, 2009, plaintiff was seen at the Kitchen Clinic for a refill of medication
(Tr. at 703). The doctor noted that plaintiff smelled of alcohol at 9:45 a.m. When confronted
about this, she claimed to have been abstinent since New Years. The doctor asked plaintiff if
she was going to try to return to abstinence. She said, “I think so.” She requested an increase
of Buspar for anxiety. The doctor noted that laboratory findings were abnormal and surmised
that this was due to alcohol intake. Plaintiff described low back pain, and the doctor
prescribed Naproxen, a non-steroidal anti-inflammatory.
On February 3, 2009, plaintiff returned to the Kitchen Clinic (Tr. at 751). Her blood
pressure had improved. Plaintiff was still smoking.
On May 4, 2009, plaintiff returned to the Kitchen Clinic for a follow up (Tr. at 753).
She complained of anxiety and insomnia. She indicated that she wanted to quit smoking and
had been abstinent from alcohol. She was given a nicotine patch protocol.
That same day, Kenneth Bowles, Ph.D., completed a Psychiatric Review Technique
finding plaintiff’s mental impairment non-severe (Tr. at 732-742). In support he noted that
plaintiff had not alleged a mental impairment, did not report treatment or medication for a
mental impairment, she reported to her doctor once that she was feeling depressed and that
she had done well on Zoloft in the past, she did not report any functional limitations related to
depression or any other mental impairment, she continued to abuse alcohol, records showed
that she denied alcohol use despite smelling of alcohol during a morning doctor appointment
(Tr. at 742).
13
On June 4, 2009, plaintiff returned to the Kitchen Clinic for medication refills (Tr. at
756). Plaintiff reported that she had started vomiting eight weeks earlier but later the
symptom continued as diarrhea. She surmised that it was due to having eaten at a local
restaurant where a health inspector found three violations in food preparation.
Plaintiff continued being seen at the Kitchen Clinic through January 2010 without
complaint (Tr. at 753, 756, 758, 760, 762, 768, 772). Plaintiff reported no seizures and
specifically denied any seizures on October 9, 2009 (Tr. at 753, 756, 758, 760, 762,
768,772). She did not report any lower back pain (Tr. at 753, 756, 760, 762, 768,772).
Plaintiff participated in counseling services at Kitchen Clinic between June 2009 and
January 2010 for problems with her boy friend and a desire to quit smoking (Tr. at 757-758,
761, 777-778, 781-782). In June 2009, she admitted to drinking three to four beers a day
once or twice a week (Tr. at 757). She was looking for work but was having difficulty finding
a job due to the recession (Tr. at 757-759, 777, 781). Plaintiff said she wanted to return to
work but she was concerned about transportation issues (Tr. at 759, 781). Plaintiff’s counselor
encouraged her to return to work as a substitute teacher and to apply for other jobs (Tr. at
759, 781). Plaintiff said she wanted to get disability benefits so that she could move out of her
boyfriend’s home (Tr. at 757, 770-771). In November 2009 she expressed ambivalence about
whether to get a job or pursue disability, but she was certain that she did not want to continue
living with her boyfriend because he was not fulfilling her needs. She had no diagnosed
mental impairment in the counseling notes of Christopher Neumann, Ph.D., or therapist
Michaela Muehlbach, M.A. Plaintiff’s final disability hearing was on the Friday after her
January 12, 2010, appointment. Her therapist was leaving the clinic, and plaintiff said she did
not want another appointment made -- that she would make an appointment later if she
wanted to continue counseling (Tr. at 767). Plaintiff was oriented and exhibited adequate
concentration, attention and memory (Tr. at 758-759, 767, 770-771, 777-778, 781-782). In
14
January 2010 plaintiff admitted that yoga had been helpful for her back and neck pain (Tr. at
767).
Meanwhile, on October 9, 2009, Judith Dasovich, M.D. -- plaintiff’s treating physician
at the Kitchen Clinic -- completed a Medical Source Statement (Tr. at 764-765). She found
that plaintiff could lift less than ten pounds even occasionally, stand or walk for less than two
hours per day, sit for less than six hours per day and must periodically alternate sitting and
standing to relieve pain or discomfort, and was limited in her ability to push or pull with her
lower extremities due to severe low back pain. She found that plaintiff could never crouch or
handle; occasionally climb, balance, stoop, kneel, crawl, finger, or feel; and could frequently
reach in all directions including overhead. She explained that plaintiff had knee pain with
crouching, and that she had difficulty reaching overhead with weight due to lower back pain.
She did not explain why plaintiff could never handle. She found that plaintiff should avoid all
exposure to fumes, odors, dusts, gases, poor ventilation, and hazards such as machinery,
dangerous equipment and heights. Plaintiff should avoid even moderate exposure to humidity
and vibration, and she should avoid concentrated exposure to extreme temperatures, wetness
and noise.
C.
SUMMARY OF TESTIMONY
During the October 22, 2009, hearing, plaintiff testified as follows:
Plaintiff testified that she lives in an apartment with a roommate10 who does not work
because he is disabled (Tr. at 123, 124). Plaintiff helps him walk around and she cleans and
cooks for him (Tr. at 123, 124). When asked to explain what she does all day, plaintiff said:
A.
Alternate sitting and standing. That’s the only way -- yeah.
Q.
That’s what you do all day? Help me out to understand.
10
Plaintiff testified this is the same man who helped her to the hospital in 2007, and in the
medical records he is referred to as her fiancé (Tr. at 127).
15
A.
Basically, I sit and read.
(Tr. at 124).
Plaintiff said she has to get up about every 40 minutes (Tr. at 125). Standing up helps
her back, but it hurts her leg and hip (Tr. at 125).
Plaintiff was smoking a pack of cigarettes per day about two months before the hearing
but had cut down to about five cigarettes per day (Tr. at 126). She was 5’ 1 1/2” tall and
weighed about 92 pounds (Tr. at 137).
Plaintiff alleges she has been disabled since 2000 (Tr. at 129). She worked in 2007
doing Christmas help as a salesperson (Tr. at 129). When asked how that went, she said, “Oh,
it was fine. I’d, I’d be hurting, but--” (Tr. at 129). Plaintiff worked for a short time at Price
Cutters in 2006, and she earned $1,200 in 2004 doing seasonal work at Dillards (Tr. at 130131). Plaintiff was on her feet all day at those jobs (Tr. at 131). Plaintiff worked at McDonnell
Douglas for 18 years until she was laid off in 1997 (Tr. at 132). When asked why she thought
she could not go back to work, plaintiff said her counselor believed she had not properly
mourned the loss of her job (Tr. at 132). Plaintiff said she would love to go back to her old job
at McDonnell Douglas (Tr. at 132-133). When asked if she could physically do it, plaintiff
said, “I don’t know.” (Tr. at 133). When asked if she could do a job where she would sit most
of the day and would not have to lift anything more than ten pounds, she said she did not
know if she could do it because her back is “screwy” (Tr. at 133). Plaintiff said she has been
wearing a back brace for 15 years (Tr. at 134). Her back hurt when she vacuumed recently,
and it hurt when she tried to move a bucket of water (Tr. at 134). Plaintiff testified that no one
has ever suggested physical therapy because she has never mentioned back pain to any doctor
(Tr. at 135). She said she is afraid of what they will tell her (Tr. at 135).
Plaintiff had cataracts removed which was “wonderful” (Tr. at 135). She said she does
not ever remember seeing as well as she can now (Tr. at 135).
16
Plaintiff testified that her Prozac is not working because she is still depressed, but she
has no side effects from any of her medication (Tr. at 137).
Plaintiff testified that she had not consumed alcohol in the past nine months (Tr. at
131). When asked how she was able to do that, she said, “I just got sick of it.” (Tr. at 131).
Plaintiff said she thought she had had two “silent” seizures the month of the hearing
(Tr. at 136). She said she freezes up, people say they cannot get her hands undone, and she is
“out of it” for three hours afterward (Tr. at 136). She has at least one grand mal seizure per
month, and sometimes two (Tr. at 138). She flops around and once was told that she foams at
the mouth (Tr. at 138).
When plaintiff testified that she had regular grand mal seizures, the ALJ stopped the
hearing: “I was not aware of the grand mals. All right. The hearing is adjourned, we’re
recessed until we can get an ME [medical expert], and we’ll start over completely.” (Tr. at
139).
During the Friday, January 15, 2010, hearing, plaintiff, medical expert Ross Elliott
Lipton, M.D., and vocational expert Terri Crawford testified.
1.
Plaintiff’s testimony.
Plaintiff’s seizures began in 2001 after she was in a car accident (Tr. at 56). Initially
she had seizures about once every six months (Tr. at 57). Plaintiff testified that her last seizure
was “last Wednesday” which would have been January 13, 2010, or two days before the
hearing (Tr. at 42). The seizure lasted about three minutes (Tr. at 42). She has the seizures
about once a week now (Tr. at 43, 57). Plaintiff has a grand mal seizure about once every
three to four weeks (Tr. at 57). It takes plaintiff 15 to 30 minutes to recover from a small
seizure (Tr. at 57). A grand mal seizure will knock plaintiff out for the rest of the day, and
sometimes the following day as well (Tr. at 58). Plaintiff usually has seizures during the
daytime (Tr. at 58). Plaintiff’s doctor has not referred her to a specialist; she saw a neurologist
17
about two and a half years earlier but otherwise just sees her regular doctor (Tr. at 43). She
has been on the same medicine for her seizures for two and a half years (Tr. at 60). Her
dosage has not been changed for a year and a half (Tr. at 76). She was asked, “And has that
been effective for you?” to which she answered, “Pretty much so.” (Tr. at 60). Her attorney
asked her again, “But my question is how effective has that been for you” to which plaintiff
responded, “Pretty good.” (Tr. at 60).
No doctor has ever mentioned plaintiff’s drinking being the cause of her seizures (Tr. at
58). They said drinking might exacerbate her seizures, but it does not cause them (Tr. at 58).
Plaintiff gets counseling from a therapist about every two weeks for a half an hour (Tr.
at 44). Plaintiff testified that she had not had any alcohol for the past year (Tr. at 44). Then
she testified that about six months earlier, she had some alcohol because she had “slipped”
back to drinking for about two days (Tr. at 45, 59). Plaintiff testified that she was down to four
or five cigarettes per day (Tr. at 45). She cut down about nine months previously, or in March
2009 (Tr. at 45-46). When the ALJ asked how she was doing now that she had stopped
drinking and significantly cut down on smoking, plaintiff said, “Good. Oh gosh, my whole
attitude, my whole depression.” (Tr. at 46).
Plaintiff described her back pain as severe (Tr. at 46). Plaintiff still had not gone to a
doctor about her severe back pain because she was too nervous (Tr. at 47). Plaintiff also has
neck pain that “freezes her” when it comes on (Tr. at 48). When that happens, she cannot do
anything (Tr. at 48-49). Plaintiff’s doctor thought it was muscular and recommended yoga
exercises (Tr. at 49). Plaintiff has trouble lifting and moving a vacuum cleaner (Tr. at 49). She
has trouble lifting her cat’s litter box, groceries full of heavy items like sugar and milk, a sack
of potatoes (Tr. at 50). Plaintiff does not have trouble walking, but she needs to alternate
standing and sitting (Tr. at 50). She can stand for about 15 minutes at a time; she does not
have trouble sitting (Tr. at 51).
18
Plaintiff would need a job where she could sit and stand at will, likely every 15 minutes
(Tr. at 52). She could do that for about an hour before needing to lie down (Tr. at 52). She
would have to lie down for about ten minutes to recuperate (Tr. at 54). When asked whether
her seizures or her back pain is a greater deterrent to working, plaintiff said she thought it was
even (Tr. at 62).
Plaintiff has chronic obstructive pulmonary disease (Tr. at 62). She coughs
uncontrollably and gags sometimes (Tr. at 62).
Plaintiff has a masters degree in education (Tr. at 54).
On a typical day, plaintiff will try to take a walk for about a block (Tr. at 63). After a
block, she rests then turns around and goes back (Tr. at 63). Plaintiff does the grocery
shopping, and when asked whether she can drive, she said, “Sure.” (Tr. at 64). When asked
whether she has any problems driving, plaintiff said that if she has to drive a long way, like to
St. Louis, she may squirm some (Tr. at 64). For entertainment she watches television and reads
(Tr. at 64).
Plaintiff said she wishes she could work, but she is afraid she would have a seizure in
the middle of something (Tr. at 65).
Plaintiff was asked to describe a silent seizure (Tr. at 71). She said she does not frittle
around; she does not flop that bad; she just sits and becomes “super tense” and is not conscious
of it (Tr. at 71). She does not function, but she does not lose consciousness (Tr. at 71). She has
no memory of the seizure, however (Tr. at 72). Afterward she feels out of sorts and it takes a
couple minutes to regain her bearings (Tr. at 73). Plaintiff was then asked by the medical
expert to describe what she refers to as a small seizure:
Q.
And the small seizure, how do you distinguish the small from the silent?
A.
I just distinguish that between the amount of time I have it.
Q.
So you’re saying the small seizure is like the silent but it’s longer?
19
A.
It’s, it’s, I would say it’s more like, no, I don’t want to say that. Kind of like, it’s
more a grand mal than it is a silent seizure. But it’s not as long in duration as
the what I call a small seizure.
Q.
Could you describe a typical small seizure then?
A.
Oh.
ALJ:
Describe it please, Ms.
A.
Well, it’s the same as like I’m, I’m out of it, you know, in moving around for,
anywhere from like, usually it’s two minutes to five minutes. And then that’s it.
I mean you know, then I’m.
Q.
So you, you lose consciousness.
A.
Uh-huh.
Q.
And you’re jerking around?
A.
Uh-huh.
Q.
And then when you stop jerking, it takes you a while to wake up or?
A.
I wouldn’t, well I come out of it, but I’m not --
Q.
You’re out of sorts?
A.
Yes.
(Tr. at 73-74).
Plaintiff does not know whether anyone is able to talk to her during a seizure (Tr. at
75).
All of plaintiff’s seizures come on without warning (Tr. at 75).
2.
Medical expert testimony.
Medical expert Ross Elliott Lipton, M.D., testified at the request of the Administrative
Law Judge. Dr. Lipton is board certified in clinical neurology, clinical neurophysiology, pain
medicine, pain management, disability and impairment, and national boards (Tr. at 70).
The ALJ identified the following conditions which existed for at least 12 consecutive
months: epilepsy, alcohol abuse, and chronic obstructive pulmonary disease (Tr. at 83).
20
Plaintiff’s other conditions do not meet the 12-month criteria (Tr. at 83). There was virtually
no mention of back pain in plaintiff’s medical records (Tr. at 83). Dr. Lipton testified that
plaintiff’s medical records show a distal branch coronary dysfunction which existed for more
than a year which may not be causing any heart dysfunction, but it exists (Tr. at 84).
Epilepsy is a condition in which unprovoked seizures are suffered (Tr. at 95). When
one tenses up on both sides of the body and loses consciousness, that describes generalized
convulsions (Tr. at 95). However, when someone is not born with a seizure problem and
suffers seizures that start from head trauma, it usually focuses in one part of the brain (Tr. at
95). Dr. Lipton was not certain how to characterize plaintiff’s seizures because they
apparently started from head trauma but she testified that they are generalized since she tenses
on both sides of her body and loses consciousness (Tr. at 95-96).
Dr. Lipton testified that the medical records are not consistent with plaintiff’s testimony
regarding her seizures (Tr. at 87). He said he could not be 100% certain that her seizures were
complex partial before evolving into a generalized convulsive seizure, which is what he
suspects, because there was never any clinical description of her seizures and no one besides
her fiancé ever saw her have a seizure (Tr. at 87-88). Dr. Lipton noted the difference between
provoked seizures (due to alcohol) and unprovoked seizures, which would bolster the
diagnosis of epilepsy (Tr. at 88). The records show one instance of an unprovoked seizure in
September 2007 after what she claimed was one month of alcohol abstinence (Tr. at 88). Dr.
Lipton also noted that the medical records refer to about a dozen seizures reported by plaintiff,
whereas her seizure log, prepared for her disability case, shows a significantly greater number
of seizures (Tr. at 88-89).
Dr. Lipton pointed out that there were several CT scans, but those showed only an
alcohol and/or nutritionally based atrophy of the brain; there was no obvious abnormality,
such as a malformation or an old stroke (Tr. at 89). He noted that treatment for epilepsy is not
21
well elaborated in the medical records (Tr. at 89). There are two instances when plaintiff was
put on Dilantin in the hospital, “but the documentation of medication use is generally poor”
(Tr. at 89). He also testified that the manner in which plaintiff was given Dilantin suggests
that she had not been on seizure medication for a significant period of time (Tr. at 89). He
surmised that was because she had only had one seizure (Tr. at 89). Although plaintiff testified
about taking Lamictal for years, the medical records do not include information about her
Lamictal treatment (Tr. at 90).
In order to meet Listing 11.02 for convulsive epilepsy, one must have a documented
detailed description of a typical seizure pattern, including all the associated phenomena (Tr. at
97). In this case, Dr. Lipton testified that there were “some holes” in terms of defining
plaintiff’s seizures (Tr. at 97). Additionally, in order to meet the listing, the seizures must
occur more frequently than once a month despite having been on prescribed medication for at
least three months (Tr. at 97). If the seizures are occurring at the listed frequency, the medical
records must include consideration of the serum drug levels, and those are not in any of
plaintiff’s medical records (Tr. at 97). Therefore, according to Dr. Lipton, plaintiff does not
meet or equal a listed impairment for epilepsy (Tr. at 97, 110).
When a patient reports a seizure, the doctor should optimize the dose of one medication
by continuing to increase the dose to the point where a maximum suggested dose is reached, or
where the patient begins to get side effects, or where the seizures cease completely (Tr. at 98).
Plaintiff’s testimony that she has been on the same dosage of the same medication for a year
and a half and is still having frequent seizures is not consistent with treatment for seizures (Tr.
at 98-99). If the patient is still having seizures and the optimal dose has been reached or the
patient is experiencing side effects, then a second medication should be added (Tr. at 99). The
doctor must consider how the second medication affects the metabolism of the first, and the
drug combination must be considered as well as the patient’s electrolytes (Tr. at 99). A patient
22
may need to take magnesium and vitamin D due to side effects and to stabilize some of the
electrolytes (Tr. at 99). There are many considerations in seizure treatment, and the
medication records do not show whether plaintiff was on an optimal dose of medication for
three months, regardless of whether she experienced as many seizures as she claims (Tr. at
99).
Dr. Lipton testified that if plaintiff’s seizure log is accurate and she is still driving (as
she testified), that is inappropriate (Tr. at 106). Dr. Lipton did not see anything in the medical
records indicating that plaintiff’s seizure activity would preclude her from working (Tr. at
106).
The ALJ noted that Dr. Dasovich felt that she was treating plaintiff optimally, since she
did not change plaintiff’s medication or dosage for a long period of time (Tr. at 100). Yet she
assessed plaintiff’s functional ability as severely restricted (Tr. at 100-101). Dr. Lipton testified
that the exertional and postural limitations found by Dr. Dasovich based on severe lower back
pain are supported by “absolutely no evidence in the record to even address this.” (Tr. at 101).
Overhead reaching and heavy lifting can hurt the neck, and plaintiff did have multiple head
trauma and complained twice of neck pain, so Dr. Dasovich’s findings as to plaintiff’s
limitations in those areas may be reasonable (Tr. at 101). Because plaintiff is very thin and
perhaps nutritionally deficient, Dr. Lipton believed that the lifting restriction is not
unreasonable (Tr. at 102). He explained that if there are two instances in the record when the
plaintiff complained of neck pain, then perhaps there were other times in between when heavy
lifting may have hurt her neck (Tr. at 103). The limitations on handling and fingering are not
reasonable (Tr. at 102).
Plaintiff’s alcohol abuse, which should be considered a distinct impairment, has not
caused any limitations -- there was only one exam that suggested a problem with balance, but
no longitudinal issue of gait and balance and she had no mental impairment due to alcohol use
23
(Tr. at 90). The only mention in the medical records of any problem with mentation or
cognition was associated with ketoacidosis, which is an acute problem from alcohol, not a
chronic problem from the effect of alcohol on the brain (Tr. at 96).
Plaintiff’s chronic obstructive pulmonary disease should also be considered a severe
impairment (Tr. at 90). Her heart condition should also be considered a severe impairment
(Tr. at 91). Plaintiff’s chemical stress test suggested distal branch coronary artery problems,
but this was not verified by angiogram and her heart function appears otherwise closer to
normal (Tr. at 91).
3.
Vocational expert testimony.
Vocational expert Terri Crawford testified at the request of the Administrative Law
Judge. She testified that plaintiff’s past relevant work includes sales clerk, D.O.T. 290.477014; office manager, D.O.T. 169.167-034; teacher, D.O.T. 091.227-010; and computer
programmer, D.O.T. 030.162-010 (Tr. at 115).
The first hypothetical involved a person who could perform sedentary work and could
occasionally climb stairs, could never climb ropes or ladders; could less than occasionally
balance, stoop, kneel, crouch, or crawl. The person could crouch to pick something up; she
could frequently reach but not over shoulder height except as necessary to take something out
to assist with sedentary work; frequently handle, finger, feel, grip and grasp. She could not use
air or vibrating tools or motor vehicles; she could not work at unprotected heights or around
moving machinery; she must avoid concentrated exposure to dust, smoke, or fumes. The
person could work in an office environment and an assembly environment but would need to
be five yards from the machine that generates the smoke or fumes. She could not work in
temperature extremes or humidity (Tr. at 115-117). The vocational expert testified that such a
person could work in plaintiff’s past relevant positions an office manager or computer
programmer (Tr. at 117).
24
The second hypothetical was the same as the first except the person could stand less
than two hours per day, sit less than six hours per day, must alternate standing and sitting
every 15 minutes, and after doing that for one hour would need to rest for ten minutes (Tr. at
117). The vocational expert testified that such a person could not work (Tr. at 117). This
second hypothetical was based on the opinion of Dr. Dasovich, plaintiff’s treating physician
(Tr. at 118).
Plaintiff’s attorney asked the vocational expert the following question:
I guess there is this one question. The judge basically set forth the restrictions on 17F
[Dr. Dasovich’s opinion]. You saw that? That’s the basis for your last --. But one quick
question. You heard the doctor’s testimony, correct? I wasn’t clear on his testimony
on, well strike that. Based on this testimony, would any of the jobs that you’ve
mentioned be available?
(Tr. at 118).
The ALJ said, “I’ll direct the witness not to answer that, since he is indeed a medical
expert. It covered a wide range of subjects, and it’s beyond the expertise of this witness. But
counsel, you may rephrase.” The attorney refused to rephrase the question, and the hearing
concluded (Tr. at 118-119).
V.
FINDINGS OF THE ALJ
Administrative Law Judge James Gillet entered his opinion on March 26, 2010 (Tr. at
12-31). The ALJ found that plaintiff meets the insured status requirements only through
September 30, 2007 (Tr. at 14).
Step one. Plaintiff has not engaged in substantial gainful activity since December 31,
2000, her alleged onset date (Tr. at 14).
Step two. Plaintiff has the following severe impairments: alcohol abuse in claimed
remission since June 2009; partial complex seizure disorder; generalized convulsive seizure
25
disorder; emphysema; chronic obstructive pulmonary disease; bibasilar atelectasis;11 nicotine
abuse; fracture of the 5th metatarsal of the left foot; and untreated depression (Tr. at 14).
Step three. Plaintiff’s impairments do not meet or equal a listed impairment (Tr. at 14).
Plaintiff’s alcohol abuse meets Listing 12.09 A and B considered under Listing 12.04 (Tr. at
14). When she is abusing alcohol, she has anhedonia, appetite disturbance with change in
weight, sleep disturbance and difficulty concentrating or thinking (Tr. at 15). When plaintiff
is abusing alcohol, she is noncompliant with treatment (Tr. at 15). When she is not abusing
alcohol and is complying with treatment, plaintiff has no more than mild limitations in any
paragraph B category (Tr. at 15).
Step four. The ALJ analyzed plaintiff’s credibility and found that her subjective
complaints are not credible (Tr. at 24-29). He also gave little weight to the opinion of Dr.
Dasovich as the opinion is unsupported by medical records and was completed at the request
of plaintiff (Tr. at 30). He then found that plaintiff retains the residual functional capacity to
perform sedentary work with occasional stooping, crouching, kneeling, crawling, balancing
and climbing stairs and ramps (Tr. at 23). She can never climb ladders, ropes or scaffolds. She
can frequently reach up to shoulder height, and she can frequently handle, finger, feel, grip
and grasp. She can reach above shoulder height once per day if necessary but not as part of a
regular job function. She cannot use air or vibrating tools or motor vehicles. She cannot work
at unprotected heights or on moving machinery. She should avoid concentrated exposure to
airborne irritants such as dust, smoke or fumes. She should not work in temperature extremes
of cold, heat or humidity. She can carry out instructions up to the svp level of 8 or 9 (Tr. at
23). With this residual functional capacity, plaintiff can return to her past relevant work as an
office manager or a computer programmer (Tr. at 30).
11
A collapse of tiny air pockets in the lungs.
26
VI.
CREDIBILITY OF PLAINTIFF
Plaintiff argues that the ALJ erred in finding that plaintiff’s testimony was not credible.
A.
CONSIDERATION OF RELEVANT FACTORS
The credibility of a plaintiff’s subjective testimony is primarily for the Commissioner to
decide, not the courts. Rautio v. Bowen, 862 F.2d 176, 178 (8th Cir. 1988); Benskin v.
Bowen, 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
27
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:
There is no complaint of, or diagnosed impairment that could reasonably cause lower
back pain in the extensive medical record. Therefore, the testimony regarding the
limitations associated with this alleged symptom and any alleged associated symptoms,
does not meet step one of the above test, and will not be considered further. This was
the conclusion of the undersigned based upon review of the record, and the opinion of
the qualified and thorough medical expert and neurologist. She complained on two
occasions of neck pain, and on one occasion of associated upper back pain, and
received a medication for moderate pain after an injury, and did not have complaints
after this one treatment request. In fact, she stated the recommendation for yoga was
already helpful after a couple of weeks of exercise. Therefore, it appears she responded
well to the exercise and a one-time non-narcotic pain medication. No other mention
was made of back pain of any kind despite multiple and regular treatment
opportunities both before and after this occasion. However, the benefit of the doubt
was given to the claimant in the most reasonable manner, to place her with work
restrictions that would prevent any possible exacerbation of neck pain in the future, as
such pain is possible with a head injury. These same precautionary limitations would
also protect her back, both upper and lower, from insults, or injuries that would cause
or renew low back pain if it has been a problem at any time during the period at issue.
Although the claimant’s malnutrition and status of being routinely undernourished has
originated with alcohol abuse, it remains after the acute effects of alcohol have
subsided, and has intermittently, but somewhat frequently been diagnosed throughout
the extended period at issue. The claimant’s statements regarding sobriety and abuse of
alcohol are inconsistent when related [to the medical records]. However, she has
remained quite thin throughout, with extreme thinness, malnutrition and anorexia
intermittently due to admitted alcohol abuse, and significant loss of weight with
resultant health issues, at other times when she has failed to admit alcohol abuse.
However, even when she fails to admit alcohol abuse, the record strongly indicates that
such abuse is present by way of laboratory reports indicating abuse, or later admissions
of the claimant to mental health providers that she was abusing alcohol at the previous
time.
At the October 22, 2009, hearing, the claimant testified that she lives with, and helps
care for her disabled roommate in an apartment. She does the cooking. She testified
that she helps with the household chores, and she spends a lot of time sitting and
reading. She said she had to move about every 45 minutes and alternate sitting and
standing, with more difficulty standing due to back pain. She testified that she had an
MRI within the last 3 years, implying it was for back pain. She testified that all of these
limitations were due to back pain. However, she admitted she had not mentioned that
she had back pain to her long-term treating physician, stating she was afraid to tell her
about her back pain. However, she had not been afraid to tell the treating physician
28
about any of her other concerns, including a mole on her stomach and multiple other
issues, including the very rare (averaging less than annually) seizures, which she
always admitted to her treating physician were connected with alcohol abuse. She had
multiple studies done when she was hospitalized related to excessive alcohol abuse and
withdrawal symptoms; however the medical record reveals she had no MRI related to
any complaint of back pain. She admits not making such a complaint. She testified she
had been wearing a back brace for the last 15 years. No physician observed that she
was wearing such a brace upon examination. If she had been, the physician most likely
would have brought up back pain. Since she had regular monthly to quarterly
appointments, she had multiple opportunities to mention back pain and the physician
had just as many opportunities to observe the back brace. Her testimony of constant
sharp back pain, from which she testified she was disabled, and not disabled by her
seizures, is simply inconsistent with her failure to seek treatment when she was seeing a
general practice physician for various other temporary or long-term issues on a regular
basis. She also took no pain medication for any other condition. She testified that she
had 2 seizures in the month of October 2009, and that these caused her to be “out of it”
for 3 hours. She testified to having one or two grand mal seizures per month, and
stated that she had talked with her doctor about these. However, at the October 9,
2009, appointment, after an August 2009 well woman examination, during which no
seizures were mentioned, she stated she had had no seizures. Having reviewed the
entire record, she denied seizures for periods of many years, interrupted by 3 total
episodes of a seizure over the years from 2001, the last in September 2007. The last
two were connected with excessive alcohol consumption and withdrawal. Thus, her
testimony of seizures is inconsistent with her own statements throughout the medical
record, and inconsistent with her statements in the same month as the hearing was
held. She had no other allegations of disabling conditions and did not mention any
problem with neck pain. . . . At the most recent appointment of record on January 8,
2010, the claimant made no mention of problems with seizures, or that she had any
seizures since the last visit. If this evidence is accurate, the physician has not had the
chance to appropriately treat the condition, as the most recent information she had
from the claimant was that she was continuing to have no seizures for over a year.
At the hearings held before the undersigned the claimant had prepared 2 different
documents entitled “Seizure Log” and submitted them as Exhibits 14E and 15E. She
now testified to having “small” seizures in addition to grand mal seizures. There is no
mention of differing types of seizures in the record.
She testified she last drank alcohol on January 7, 2009. When reminded that she
admitted that she was drinking some alcohol at Exhibit 16F, pg. 8, in June 2009, she
changed her testimony to state, “that was the first time I had fallen off...” She then
testified she must have “slipped” in her drinking and went back to drinking for “like
two days.” However, at the time, she said she was drinking in the same rather
moderate pattern she would admit to when she was previously hospitalized with
multiple medical problems due to excessive alcohol abuse. She testified she attended
Alcoholics Anonymous. She then changed [the] focus of the testimony. She stated in
the same sentence that she now only smokes 4 to 5 cigarettes per day. The undersigned
asked how life was since she was not drinking and had cut down her smoking so much.
She responded, Good.” She was asked what had changed as a result. She said, “My
whole attitude, no depression, of course you never know which comes first, just life!”
29
Regarding back pain, she really could not describe any back pain. She said she
sometimes had burning pain in her neck that stopped her in her tracks. Her doctor had
given her yoga exercises for her pain. She testified that she had no limitations in sitting.
She said she mostly sat around all day. She then testified she would need to alternate
sitting and standing every 15 minutes, and after doing that for one hour, she would
need to lie down. She ultimately testified she would be able to resume alternating sitting
and standing after lying down for 10 minutes. She testified she could not lift a gallon of
milk or a sack of potatoes. She admitted however that she had not spoken to her doctor
about the back pain she now alleges has been so limiting to her. Regarding seizures, the
claimant testified she had her first in 2001, and initially had them about once every 6
months. This testimony is inconsistent with the record indicating she had no seizure
activity for a much longer period until she was going through alcohol withdrawal in
2007. She testified they have become more frequent. She stated she now gets grand mal
seizures once a month, with recovery lasting the rest of the day, sometimes the next day
as well. Apparently her testimony is that this commenced after her October 9, 2009
appointment when she denied ay seizure activity, as she had repeatedly. Once again,
there is nothing in the medical record to support her testimony of this frequency. Even
the post-hearing evidence fails to support her testimony of active seizures. She also
testified to smaller seizures during which she loses consciousness and lasting only 3-4
minutes with recovery time of only 15 to 30 minutes. According to the claimant, these
occur once a week. Her testimony and post-hearing “log” is the only evidence of such
occurrences. She testified that no doctor ever said drinking was the cause of her
seizures. She started Lamictal 2 to 2.5 years ago. She did not answer whether it had
been effective, but said her physician put her on it because it had few side effects. She
thinks it has cut the length of the seizures, and maybe their intensity. When asked
which impairment interferes most with her ability to work, she said, “It’s not the
seizures, it’s my back.” She later testified they were probably equally limiting. When
reminded of her chronic obstructive pulmonary disease and asked how that limited her,
she testified she had periods during which she coughed uncontrollably. When asked
what she did in a typical day, the claimant testified she tries to take a walk, about a
block and turns around and goes back. She said she may have to rest or her back will
“give out.” Around the house she does the chores, but she said, “It takes her awhile.”
She does the shopping, but does not do the lifting. She drives. She has no problems
driving. She watches television and reads, and goes to AA for entertainment. She does
not have the money for movie tickets. Regarding the “seizure log,” she testified she
filled it out the day she was in the attorney’s office. Both logs appear to be similarly
generated, and not a document completed over time as a method of clear
documentation of actual occurrences.
The claimant did not testify that her ability to walk was limited by COPD. The fact that
she does the driving is a strong indication that she is not having the level of seizure
activity she alleges. She testified that she had no warning of the seizures. If a physician
knew that an individual had any seizure activity, they would be told to not drive until
they had been seizure-free for six months. Further, if an individual were having the
number and length of seizures the claimant alleges, without warning, it seems very,
very likely that, as a matter of self preservation, she would not get behind the wheel.
*****
30
The medical expert concurs that there is no objective medical evidence to support the
claimant’s allegations of a back impairment. Therefore the claimant’s testimony
regarding limitations from back pain is not based upon any medically determinable
impairment. She has not complained of or been treated for such an impairment
throughout the entire period at issue. As a result, it does not pass muster under step
one of the two-step credibility analysis.
The claimant only testified that sometimes her COPD caused her to cough
uncontrollably. She did not testify to any other limitations. She has had very few
problems with upper respiratory infections, has not been treated with complaints of
shortness of breath unrelated to these few problems, and has not indicated that this is a
significantly limiting condition to her. However, the undersigned is limiting her to a
range of sedentary exertional level work due to her combined impairments, and
restricting the work environment to one free of concentrated airborne irritants such as
dust, smoke, or fumes. In addition, the undersigned is finding that she could not work
in temperature extremes of cold, heat or humidity, both due to her COPD, and possible
neck problems.
As to any head injury causing a neck impairment, the claimant did not complain of this
until very recently in the period at issue, and has gotten significant relief with mild pain
medication. However, to prevent exacerbation of a possible neck impairment, and
considering her COPD and the possibility of a seizure disorder unrelated to alcohol, the
undersigned limits her to sedentary exertional level work. This is also consistent with
her original testimony that she has no difficulty sitting, and spends her day sitting.
Thereafter, her testimony changed twice. These changes are found not supported by
the evidence, as she has no impairment which would limit sitting, and as they are
inconsistent with her initial testimony. Finally, there is nothing in the record to support
limitations in sitting. Since she is capable of doing the shopping and housekeeping, and
caring for her disabled roommate, a sedentary exertional level residual functional
capacity is more than reasonable. As a part of the sedentary limitation, but to reiterate,
for the same reasons as set out above, she may not more than occasionally stoop,
crouch, kneel, crawl, balance and climb stairs and ramps. She can frequently reach
bilaterally at up to shoulder height, and frequently handle, finger and feel, grip and
grasp. She can reach above shoulder height approximately once per day, if necessary,
but not as a part of her regular job function, due to potential exacerbation of previous
temporary neck pain, complained of. She cannot use air or vibrating tools due to the
same potential exacerbation.
The claimant’s seizure disorder has been discussed extensively above. Exhibit 14E is 2
sheets of legal pad paper with lines dated from April 12, 2008 through September 29,
2009, which purports to be a copy of the claimant’s Seizure Log. She designates 3 types
of seizures, “silent” and “small”, in addition to “grand-m”. In that 17 and 1/2 month
period, the log shows 8 “silent”, 19 “small” alleged seizures generally purported to last
1 to 3 minutes, with one set out at 4 minutes and one set out at 5 minutes. It also shows
5 “grand-m” alleged seizures, totaling 32 seizures, with times of seizure activity for the
grand mal seizures showing one seizure lasting 10 minutes, two lasting 15 minutes and
two lasting 20 minutes. This was presented for the October 2009 hearing. The second
document presented January 15, 2010, was admitted by the claimant to have been
created in her attorney’s office on January 14, 2010. In this 3-month period, the
31
claimant alleged she had 6 “small” seizures of up to 18 minute duration and 3 “grand
m” seizures, one 20 minutes long and two 25 minutes long. During this period from
July 2009 through January 2010, the claimant was seeing a counselor. She talked
about difficulty she was having quitting smoking. She talked about neck pain and her
yoga exercises. She talked about how her life was going generally and specifically. She
never once mentioned having a seizure, or problems with seizures. If the claimant
were having anywhere near the type of seizure activity she has alleged, or most likely
any seizure activity, she would have brought this up to her counselor. See Exhibit 17F.
Although the claimant has had a roommate who has allegedly timed the claimant’s
seizures, and described these to her, he has not felt it necessary to call for help or get
the claimant to emergency treatment during any of the alleged episodes in Exhibits 14E
and 15E. Although medical evidence was provided hy the claimant’s attorney through
January 12, 2010, no hospital records are provided for the period after the end of
October 2008. If her attorney felt these records would he helpful to the claimant or
support her case in any way, or if she had in fact gotten additional treatment, the
records would be available for the attorney to obtain. The records were not submitted
into evidence. As a result, a negative inference is drawn, the claimant was not seen
thereafter for seizures unrelated to alcohol abuse or withdrawal. Prior to that date, she
was seen for alcohol-related seizure and ketoacidosis and not long prior to that, she
passed out due to dehydration, also a symptom of her alcohol abuse. Further, these
occurrences were in 2007, and prior to being treated for seizure disorder on any
continuing basis.
Despite delineating the different types of seizures, apparently with the alleged help of
her roommate, at the hearing, the claimant was unable to describe any difference
between a “small” seizure and a “silent” seizure. She had difficulty describing
anything about the seizure activity, or the occurrences after the seizure, such as
whether she lost bowel and/or bladder control, whether she had injuries, whether she
had a headache, etc. She did not write or have her roommate write any such
information about any of the alleged seizures in the “Log.” The only comment might be
“down for two days” after listing a “grand-m” seizure or “down for 2 and 1/2 days.”
Her testimony was no more clear. The second document, Exhibit 15E, covers October
1, 2009 apparently through January 14, 2010. Other than the periods of time listed for
the seizure activity being well beyond a normal time for seizure activity to occur, both
logs were allegedly created during times when the claimant was getting regular
medical treatment for seizures and denying seizure activity. If she were having such
frequent and debilitating seizures and if she were keeping this journal showing this
type of activity, she most certainly would have told her physician and shown her the
journal so that medication changes could have been made to minimize or eliminate the
seizures. She did neither. The documents are found to have been created for purposes
of obtaining disability benefits, and found not to be an accurate reflection of seizure
activity.
*****
The claimant has had some depression with anxiety symptoms, connected only with
alcohol abuse. When she has had some documented periods of sobriety, she has had no
complaints of symptoms from these disorders whether taking or not taking medication
32
for depression. She has not been referred for any real mental health treatment. She
was recently in relatively short-term counseling in connection with her attempt to quit
smoking. She has testified that she has no depression when she is not drinking alcohol.
This is consistent with the record as a whole. The evidence indicates that she has some
mild brain atrophy, consistent with long-term alcohol abuse. However, she has
continued to show strong mental functioning when not actively abusing alcohol. She
has no limitation in the ability to carry out instructions up to the svp level of 8 or 9,
despite the mild atrophy of the brain as a result of alcoholism and the head injury,
which have not been shown to have caused any appreciable decline in mental
functioning. The claimant did not allege any such limitations.
Regarding other factors, the claimant had a long period of significant earnings
However, commencing in 1995, her earnings declined rather than increased from over
$34,000 to about $32,000. Then in 1996 she earned only about $7,000. From that
point on, her earnings were sporadic with about $4,500 in 1997 and doubling the next
year. By 1999 she earned over $12,000. However, in 2000, earnings were down again
to $8,362. These low and sporadic earnings were prior to the alleged onset of disability
without an alleged medical condition that would account for the loss of consistently
high earnings. She earned almost as much in one of the years after her alleged onset of
disability as she did in the lowest year above prior to her alleged onset of disability.
From 1998 through 2001, she worked for various schools as a substitute teacher. For
some reason, she either began to get fewer calls or to accept fewer assignments -- in
2000, and even more so in 2001. Jobs thereafter generally lasted for only one month,
with one lasting up to three months. Such a record prior to the alleged onset of
disability does not indicate that, but for a disabling medical condition, the claimant
would be fully employed. It is also a record that could be consistent with an individual
battling a very significant problem with substance abuse.
(Tr. at 24-29).
I find that the ALJ’s very thorough credibility analysis is supported by the record as a
whole.
Plaintiff takes exception to these comments: “[F]or some reason, she either began to get
fewer calls, or to accept fewer assignments” and “[S]uch a record prior to the alleged onset of
disability does not indicate that, but for a disabling condition, the claimant would be fully
employed. It is also a record that could be consistent with an individual battling a very
significant problem with substance abuse.” Plaintiff criticizes the ALJ’s analysis because he
mentions seizures caused by both alcohol consumption and alcohol withdrawal. With respect
to plaintiff’s history of taking Dilantin and Lamictal, plaintiff argued that, “If a medical doctor
33
did not think that these were necessary, then they [sic] would not have prescribed these antiseizure medications.”
The ALJ identified inconsistencies between plaintiff’s subjective allegations and the
record as a whole. Subjective complaints may be discounted if the evidence as a whole is
inconsistent with the claimant’s testimony. Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir.
2006). While the ALJ found that plaintiff suffered from a seizure disorder, the ALJ did not find
plaintiff’s statements regarding the frequency credible. Plaintiff testified that she had one
seizure every six months after her 1997 motor vehicle accident. However, in August 2007
plaintiff denied having had any seizures for seven or eight years (Tr. at 17, 502). In September
2007, plaintiff stated that she had experienced seven seizures in 15 years, which corresponds
to one seizure every two years and not one every six months. The statement in September
2007 (that she had seven seizures in the past 15 years) was also inconsistent with her
statement in August 2007 that she had not had any seizures for the past seven or eight years.
Plaintiff prepared a seizure log stating that she had had 41 seizures between April 12, 2008,
and January 7, 2010. However, the medical records during this time period do not reflect
these seizures. Plaintiff received counseling between June 2009 and January 2010. The ALJ
properly noted that plaintiff never described any seizures to her counselors and instead
focused on her smoking and her relationship with her boyfriend.
Plaintiff claimed that she had had a seizure on April 12, 2008; however, on April 17,
2008 -- five days later -- she did not report having had any seizures since September 2007, or
seven months ago. Plaintiff described a 15-minute long seizure on May 2, 2008, but did not
report the seizure to her medical provider six days later on May 8, 2008. Plaintiff claimed to
have had a seizure on July 3, 2008; but on July 9, 2008, she denied to her medical provider
having had any seizures since September 2007, or ten months ago. The denial in the medical
records that she had any seizures since September 2007 is inconsistent with her claimed
34
seizures on April 12, 2008; April 21, 2008; May 2, 2008; May 19, 2008; May 20,2008; June
15, 2008; and July 3, 2008, in connection with her disability applications. This seriously
undermines her credibility. On August 13, 2008, plaintiff reported having a seizure on August
10, 2008; however, this date is not in plaintiff’s seizure log. Plaintiff claims to have had a
seizure on September 13, 2008; but she did not reference it to her physician three days later on
September 16, 2008. Plaintiff claims she had a seizure on December 29, 2008, and January 3,
2009; but she did not report these seizures just a couple days later on January 6, 2009.
Plaintiff called her physician on December 30, 2008 -- the day after an alleged seizure -- but
did not mention the seizure. Plaintiff alleged a seizure on January 31, 2009, but did not report
it on February 3, 2009. Plaintiff allegedly had five seizures between February 27, 2009, and
April 21, 2009, but did not relay any of them to her doctor on May 4, 2009. Plaintiff allegedly
had a seizure on October 6, 2009, but denied any seizures three days later on October 9, 2009.
Plaintiff described a 25-minute grand mal seizure that had her down for two days on October
24, 2009. However, three days later, on October 27, 2009, she told her counselor that she was
doing well. She did not mention the seizure or having been down for two days. Plaintiff
alleged that she had a seizure on January 7, 2010, but the next day did not report having had
that seizure. Overall, it is clear that plaintiff’s seizure log was not accurate.
Plaintiff argues that if she did not suffer from a seizure disorder, her physician would
not have prescribed anti-seizure medication. However, plaintiff was not on any anti-seizure
medication for four years during the relevant time period, and she testified that she had been
on the same dosage of the same medication for a year and a half. Plaintiff’s argument goes
both ways -- had her doctor believed she was in need of anti-seizure medication, the doctor
would have prescribed it. And had the doctor believed plaintiff continued to have weekly
seizures while on this one medication, she presumably would have increased the dosage or
added other medications in an attempt to better control plaintiff’s seizures. Additionally, the
35
ALJ did find that plaintiff suffers from a seizure disorder, but found that the seizures were not
as frequent as she alleged. Finally, the medical records reflect only one instance of plaintiff
being warned not to drive due to seizures, and that was in September 2007. In a supplemental
questionnaire, plaintiff reported that no one has ever advised her not to drive. During the
hearing, plaintiff testified that she drives; and the only problem she named with traveling long
distances (like from Springfield to St. Louis) was squirming because of having to sit for so long
in the car. Plaintiff’s decision to drive and the lack of driving restriction from her treating
physician undermine her claims regarding the frequency of seizures.
The ALJ properly reviewed plaintiff’s statements regarding her sobriety and found them
inconsistent with the record. The record shows that plaintiff consistently minimized her
alcohol use. In August 2007, plaintiff claimed that she had only had two drinks; however, her
blood alcohol level was four times the legal limit. In September 2007, plaintiff was admitted as
unresponsive to the hospital and her fiancé said that she had had a bit too much beer the night
before. Plaintiff later stated that she only drank five beers at most, two days a week; however,
the medical provider doubted her statements given the “quite high” MCV level. Plaintiff had a
seizure on September 27, 2007, and she told the doctor that she had not consumed alcohol in
25 days. The ALJ properly noted that nine days after her discharge, plaintiff admitted that she
had last consumed alcohol ten days earlier. This later admission is inconsistent with previous
statements regarding her alcohol use. Plaintiff testified that she had not consumed alcohol
since January 7, 2009; however, when reminded of the June 2009 medical records she
admitted that she must have “slipped.” Her testimony regarding January 7, 2009, being her
last consumption of alcohol is also inconsistent with her testimony at the first administrative
hearing when she said she quit on January 31, 2009, and is inconsistent with her admitted
“slip.” On January 6, 2009, plaintiff’s treating physician confronted her about smelling of
alcohol at 9:45 a.m. At that time, plaintiff stated she had not had anything to drink since
36
January 1, 2009. Further, she said intended to stay sober; however, based on her testimony,
she drank alcohol the very next day.
Plaintiff argues that her alcohol “only” exacerbated her epilepsy. However, the ALJ did
not find that plaintiff did not have seizures absent her alcohol abuse. Rather, the ALJ found
that plaintiff’s misstatements regarding her alcohol abuse undermined her credibility. See
Karlix v. Barnhart, 457 F.3d 742, 748 (8th Cir. 2006) (“[T]he ALJ found Karlix unreliable
because his testimony at the administrative hearing regarding his consumption of alcohol
conflicted with medical documentation. This was a sufficient reason for discrediting Karlix,
and we defer to the ALJ’s judgment on this issue.”).
Despite plaintiff’s seizure disorder, she testified that her back pain was the impairment
that prevented her from working more than her seizures (Tr. at 20, 24-26, 46-47, 61, 13334). The ALJ properly considered plaintiff’s complaints of lower back pain and found them
unsupported by the medical records. See Edwards v. Barnhart, 314 F.3d 964, 967 (8th Cir.
2003) (“[T]he ALJ concluded, and we agree, that if her pain was as severe as she alleges,
[plaintiff] would have sought regular medical treatment.”). Plaintiff admitted that she did not
seek any treatment from a doctor for her lower back pain. Her reason -- that she was afraid
what she would be told -- makes no sense considering the fact that plaintiff had no fear of
reporting neck pain to her doctor. The medical expert testified that the record was “virtually
absent” of any mention of lower back pain. This is despite plaintiff having received almost
monthly treatment from the Kitchen Clinic during the relevant time period. See McCoy v.
Astrue, 648 F.3d 605 (8th Cir. 2011) (“[A]lthough McCoy regularly visited doctors . . ., he
rarely mentioned any pain or limitation in movement of his back . . . .”). Plaintiff admitted to
her counselor that yoga stretching helped her pain. An impairment that can be controlled with
medical treatment cannot be considered disabling. Davidson v. Astrue, 578 F.3d 838, 846 (8th
Cir. 2009); Brown v. Barnhart, 390 F.3d 535, 540 (8th Cir. 2004). The ALJ also noted that
37
plaintiff’s statement regarding the use of a back brace for 15 years was unsupported by the
record. As explained by the ALJ, no medical provider ever noted that plaintiff was wearing a
back brace. If plaintiff had worn a back brace for 15 years, one would reasonably expect to
see some notation in medical records that such a brace was observed during that time period.
Plaintiff’s daily activities belie her claim of total disability. Plaintiff claimed in her
administrative paperwork that she could care for her disabled roommate, prepare meals,
perform household chores, wash laundry and dishes, grocery shop, drive, read, watch
television, and attend Alcohols Anonymous meetings. “Acts such as cooking, vacuuming,
washing dishes, doing laundry, shopping, driving, and walking are inconsistent with subjective
complaints of disabling pain.” McCoy v. Astrue, 648 F.3d at 614, citing Medhaug v. Astrue,
578 F.3d 805, 817 (8th Cir. 2009). Additionally, plaintiff’s ability to care for a disabled
individual is inconsistent with her allegation of disability. Brown v. Barnhart, 390 F.3d at 541.
The ALJ properly considered plaintiff’s motivation to receive disability benefits, her
attempts to find work, and her work history in evaluating her credibility. Plaintiff told her
counselors that she wanted to receive disability benefits so that she could move out of her
boyfriend’s apartment and get a place of her own. Evidence of secondary gain is relevant in
determining a claimant’s credibility. Eichelberger v. Barnhart, 390 F.3d 584, 590 (“[T]he ALJ
found that Eichelberger had objectively determinable impairments, but also noted that her
incentive to work might be inhibited by her long-term disability check of $1,700 per month);
Gaddis v. Chater, 76 F.3d 893, 896 (8th Cir. 1996) (allowing an ALJ to judge credibility based
on a strong element of secondary gain). Plaintiff’s counselor’s notes also show that plaintiff
was looking for work during the relevant time period (Tr. at 20, 757-59, 777, 781). Plaintiff
wanted to return to work as a substitute teacher, which her counselor encouraged her to do
(Tr. at 20, 757-59, 777, 781). Plaintiff’s counselor also suggested that she apply for other jobs
(Tr. at 20, 759, 781). However, looking for work is inconsistent with allegations of disability.
38
Bentley v. Shalala, 52 F.3d 784, 786 (8th Cir. 1995); Barrett v. Shalala, 38 F.3d 1019, 1024
(8th Cir. 1994); Mitchell v. Sullivan, 907 F.2d 843, 844 (8th Cir. 1990). Plaintiff admitted
that she had difficulty finding a job because of the recession, and her reasons for leaving the
employment after her alleged onset date were not related to her impairments but for other
reasons including that seasonal work had ended. These are appropriate factors weighing
against plaintiff’s credibility. Depover v. Barnhart, 349 F.3d 563, 566 (8th Cir. 2003) (“Since
the evidence supports a finding that Mr. Depover left because the job ended, we believe that it
was not unreasonable for the ALJ to find that this work ‘suggests that his impairments are not
as severe as alleged.”) The ALJ noted that plaintiff’s earnings were sporadic after she lost her
job at McDonnell Douglas -- the low earnings in her employment record do not coincide with
her alleged onset date.
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’s subjective allegations of disabling symptoms are not
credible.
VII.
OPINION OF TREATING PHYSICIAN
Plaintiff argues that the ALJ erred in giving little if any weight to the opinion of
plaintiff’s treating physician as outlined in the Medical Source Statement.
A treating physician’s opinion is granted controlling weight when the opinion is not
inconsistent with other substantial evidence in the record and the opinion is well supported by
medically acceptable clinical and laboratory diagnostic techniques. Reed v. Barnhart, 399 F.3d
917, 920 (8th Cir. 2005); Ellis v. Barnhart, 392 F.3d 988, 998 (8th Cir. 2005). If the ALJ fails
to give controlling weight to the opinion of the treating physician, then the ALJ must consider
several factors to determine how much weight to give the opinion: (1) the length of the
treatment relationship, (2) frequency of examinations, (3) nature and extent of the treatment
relationship, (4) supportability by medical signs and laboratory findings, (5) consistency of the
39
opinion with the record as a whole, and (6) specialization of the doctor. 20 C.F.R. §
404.1527(d)(2) - (5).
The ALJ had this to say about Dr. Dasovich at the Kitchen Clinic:
The claimant’s treating physician completed a Medical Source Statement. However, as
noted by the Medical Expert, this Statement is not supported hy the objective evidence.
It is not supported by the physician’s own treatment notes and records, and is
inconsistent with the evidence of record regarding an allegation of back pain. There is
simply no objective support of record for any impairment that would support the
allegations. It appears that, at least in part, Dr. Dasovich completed the Statement as
the claimant asked her to complete it. This is often the case with a long-term treatment
relationship. The physician knows that their patient needs to continue receiving
medical treatment. They want the claimant to continue to qualify for Medicaid, the
physician is in a hurry. The patient presents a form to the physician and states what he
or she wants the form to indicate. The physician complies to various degrees. The
Statement contains no diagnosed conditions to support the limitations and these are not
found in the treatment record. The undersigned gives the Statement little weight.
(Tr. at 30).
Clearly the most important factors here are supportability by medical signs and
laboratory findings and consistency of the opinion with the record as a whole. Nearly every
restriction found by Dr. Dasovich was extremely severe and was due to back pain: Her finding
that plaintiff could never lift even ten pounds, could stand or walk for less than two hours per
day, could sit for less than six hours per day, must periodically sit and stand to relieve pain,
and her limitation in pushing or pulling with her lower extremities are due to “severe lower
back pain.” Her inability ever to handle or to finger and feel more than occasionally are due to
“lower back pain”. There is only one mention of lower back pain in all of Dr. Dasovich’s
records, and for that Dr. Dasovich recommended a non-steroidal anti-inflammatory. Dr.
Dasovich found that plaintiff could never crouch due to knee pain. However again, Dr.
Dasovich never treated plaintiff for knee pain and her notes do not reflect that plaintiff ever
complained of knee pain. Significantly, Dr. Dasovich did not mention seizures anywhere in
this Medical Source Statement, even though that is the primary condition for which she
presumably was treating plaintiff.
40
The ALJ’s comments about some doctors filling out forms in accordance with their
patients’ instructions are not relevant to plaintiff’s case. The ALJ did not rely on this
observation in determining whether to give any weight to the Medical Source Statement. He
merely pointed out what he has no doubt seen over his years on the bench. Regardless of those
comments, he was justified in discounting this Medical Source Statement as it is contradicted
by the doctor’s own treatment records and all of the other medical evidence in the record.
VIII.
QUESTIONING VOCATIONAL EXPERT
Finally plaintiff argues that the ALJ erred in directing the vocational expert not to
answer counsel’s question and in directing counsel to rephrase. This argument is without
merit.
Plaintiff’s attorney asked the vocational expert the following question:
I guess there is this one question. The judge basically set forth the restrictions on 17F
[Dr. Dasovich’s opinion]. You saw that? That’s the basis for your last --. But one quick
question. You heard the doctor’s testimony, correct? I wasn’t clear on his testimony
on, well strike that. Based on this testimony, would any of the jobs that you’ve
mentioned be available?
(Tr. at 118).
The ALJ said, “I’ll direct the witness not to answer that, since he is indeed a medical
expert. It covered a wide range of subjects, and it’s beyond the expertise of this witness. But
counsel, you may rephrase.” The attorney refused to rephrase the question, and the hearing
concluded (Tr. at 118-119).
The medical expert testified for a long time, his testimony covering 44 pages of the
administrative transcript. He never testified about any of plaintiff’s abilities. He did not testify
that plaintiff could or could not walk, stand, or sit for any length of time. He never rendered
an opinion about what functional limitations or abilities plaintiff had. Instead, he testified
about the medical conditions that appear in the medical records, he explained procedures and
treatments and medications, and he compared the medical records to plaintiff’s testimony.
41
There is no way the vocational expert could say whether a person “based on the medical
expert’s testimony” could do any particular job. The ALJ stated that the question was not a
proper question and gave the attorney a chance to rephrase the question. Despite having
indicated that he himself was “unclear” on the medical expert’s testimony, counsel chose not to
rephrase his question. This was no error on the part of the ALJ.
IX.
CONCLUSIONS
Based on all of the above, I find that the substantial evidence in the record as a whole
supports the ALJ’s decision finding plaintiff 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
January 30, 2012
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