Brown v. Colvin

Filing 14

ORDER. The Commissioner's decision is affirmed. Signed on 6/13/16 by District Judge Nanette K. Laughrey. (Matthes, Renea)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
CASSEY BROWN,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

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No. 6:15-cv-03468-NKL

Defendant.
ORDER
Cassey Brown appeals the Commissioner of Social Security’s final decision denying her
application for disability insurance benefits and supplemental security income. 1

The

Commissioner’s decision is affirmed.
I.

Background
Brown was born in 1981 and is a high school graduate. In the last 15 years, she has

worked as a cook at a grocery store deli and an assistant manager at convenience store, and in
factories as a welder and sewer, and doing quality control. She has not worked since 2010. She
claims disability due to obesity and degenerative disc disease of the lumbar spine, as well as
fibromyalgia.
A.

Medical history

Brown went to the emergency room for back pain in 2004. The next week, Dr. Douglas
Green, a neurologist, surgically repaired discs in her lumbar spine.
In May 2008, Brown had a car accident, and went to an urgent care clinic complaining of
1

Brown’s claim was previously denied in December 2010. This Court reversed the
decision in March 2013 and remanded without written order for further consideration. Brown’s
current appeal is from the decision rendered after remand.

back, hip, and leg pain. She returned two weeks later for pain, tingling, and numbness.
Brown saw a nurse practitioner, Celeste Bowles, in February and October 2010 for cough
and back pain. NP Bowles prescribed pain medication for the back pain.
Brown saw Dr. Richard Bowles in early January 2011 for “recheck” of fibromyalgia and
back pain. Brown reported a gradual onset of fibromyalgia pain. She said her back pain was
long-term despite surgery, and that Tramadol had stopped helping. Dr. Bowles noted, “Pt now
spoiling for breast reduction surgery.” Tr. 250. Under Assessment and Plan, the doctor listed
low back pain, and prescribed a course of Savella with no refill, and referred Brown to her
neurosurgeon, Dr. Green. Dr. Bowles also listed HNP in the lumbar region, radiculopathy, and
fibromyalgia, but did not identify any treatment plan. Tr. 251. Brown subsequently had an MRI
of her back, which showed disc issues and degenerative changes. At the end of January 2011,
Brown saw a nurse practitioner, David McVicker, for back pain. NP McVicker noted Brown’s
gait was abnormal. He diagnosed sciatica, herniated disc, and morbid obesity; prescribed pain
medication; and noted Brown was scheduled to see Dr. Green.
Brown saw Dr. Green in February 2011. He observed lumbar tenderness on palpation,
limited range of motion due to pain, and decreased strength and sensitivity to pinprick on the
right. He recommended weight loss and referred Brown to a pain clinic, and instructed her to
return if the conservative treatment did not work.
In April and June 2011, Dr. Thompson gave Brown spinal and epidural steroid injections
for back pain. In June 2011, the doctor observed SI joint tenderness and a broad-based gait.
Brown reported 100 percent decrease in pain with the injections, although she ultimately
reported that the pain relief did not last.
Brown saw Dr. Green again in December 2011 for back and hip pain. The doctor noted

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tenderness to palpation along the lumbar spine and SI joint, some difficulty with heel-gait testing
on the right due to foot drop, and some decreased strength in the right hamstring.

He

recommended an MRI and advised Brown to follow up after testing was complete. However,
Brown did not have the MRI because she became pregnant.
At fourteen appointments and checkups throughout Brown’s pregnancy, the providers did
not note reports of any pain, and on two other occasions, Brown reported pain of three or less on
a 10-point pain scale. At a visit during her second trimester, Brown reported that the only pain
she had was due to removal of her wisdom teeth the prior week. Tr. 684. Her baby was born in
August 2012.
Brown saw Dr. Griffith in November 2012, reporting that her fibromyalgia medication
was not working and requesting an MRI of her back. Dr. Griffith diagnosed lumbago and
chronic fatigue syndrome. An MRI performed later that month showed nothing new.
In February 2013, Brown visited Cherry Health Center for back pain. An x-ray showed
discogenic spondylosis in the lumbar region, articular facet degeneration, and restriction of
lumbar motion. Later that year, in November 2013, Brown saw Dr. Stinson for neck and
shoulder pain, and she reported fatigue and malaise. She denied gait disturbance, or weakness or
numbness in her extremities. The doctor diagnosed cervical strain, myalgia, myositis, and
obesity. At a July 2014 visit with Dr. Stinson, Brown complained of fatigue, problems sleeping,
and left wrist pain, and demonstrated gait disturbance. She had normal leg strength. The doctor
diagnosed wrist pain and lumbago.
B.

Written opinion evidence

NP McVicker completed a Medical Source Statement-Physical in April 2011. He opined,
among other things, that Brown could frequently lift and carry 15 pounds; stand or walk

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continuously for 45 minutes up to an hour throughout an eight-hour work day; sit continuously
for 30 minutes up to an hour throughout an eight-hour work day; and needed to lie down two to
three hours during a shift if she suffered pain.
A non-examining medical expert, Dr. Lee Beesen, opined in July 2011 that Brown
suffered from lower back pain and fibromyalgia. He further opined, among other things, that
Brown could occasionally lift and carry up to 20 pounds; sit two hours at a time without
interruption and three hours during the work day; and stand or walk one hour at a time up to two
hours during the work day.
Dr. Charles Ash, an orthopedist, saw Brown for a consultative exam in June 2014. He
observed Brown was obese; had normal range of motion in the cervical spine and upper and
lower extremities; had lumbar and sacroiliac tenderness with limited motion; and walked with
somewhat of a limp. He noted, “There is a marked subjective component to the limp.” Tr. 729.
He diagnosed probable degenerative arthritis of the lumbar spine. He opined that Brown could
stand and walk two hours in a workday; sit eight hours in a workday; and lift ten pounds
occasionally and no weight frequently. He also completed a Medical Source Statement-Physical
in which he further opined that Brown could occasionally lift and carry up to ten pounds; sit,
stand, or walk one hour at one time without interruption; sit eight hours throughout an eight hour
workday; and stand or walk four hours throughout an eight hour workday.
C.

The hearing of October 2014 before the ALJ

Brown testified that her back pain had worsened over time, and she had leg numbness
and soreness. She said she could not sit for long periods, and that she had trouble sitting during
the hearing. Standing, such as to do the dishes, could cause back pain. She was not using an
assistive device to walk for purposes of the hearing, but said that around her house she used

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walls and shelves to assist when she walked. She further testified that she had to recline or lie
down for “ninety percent” of the day, Tr. 374, fell on occasion when her legs went numb, and on
bad days could not move at all. She explained that she stopped working due to pain: “I’d go
home crying, hurting so bad.” Tr. 379. When asked where the pain was, Brown told the ALJ,
“Mainly in my back.” Tr. 380.

She did not mention pain or other symptoms in relation to

fibromyalgia, nor mention fibromyalgia, during her testimony.
Dr. Donald Plowman, a board-certified orthopedic surgeon who is familiar with the rules
used for evaluating evidence and providing expert testimony in the Social Security context,
examined the records and testified at the hearing. He opined that Brown’s severe impairments
included lumbar spine problems with a diagnosis of lumbar spondylosis, post disc incisions, and
degenerative disc problems, as well as obesity. (Tr. at 358). He noted that pregnancy is expected
to exacerbate back pain. Although a diagnosis of fibromyalgia was noted in places in the
medical records, the doctor testified that he was unable to find any documentation of a proper
work up for fibromyalgia that her doctor had done, and he did not conclude that fibromyalgia
was a severe impairment. Dr. Plowman testified that Brown’s limitations included lifting ten
pounds frequently and twenty pounds occasionally; standing and walking thirty minutes at a time
with rest periods for four hours during the day; sitting for six hours with a sit-stand option,
alternating every thirty minutes; limited kneeling and crawling due to weight; and occasional
driving. He agreed Brown might need work breaks.
D.

The decision

The ALJ determined Brown suffered from severe impairments of obesity and
degenerative disc disease of the lumbar spine, and concluded she retained the RFC:
[T]o perform light work as defined in 20 CFR 404.1567(a) and
416.967(b) except the individual could stand 30 minutes at a time
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up to four out of eight hours; could walk 30 minutes at a time up to
four out of eight hours; could sit six out of eight hours; would need
to have a sit/stand option every 30 minutes; could climb ramps and
stairs very occasionally, less than an occasional basis; could
occasionally crouch, occasionally stoop; is unable to kneel; unable
to crawl; also is unable to climb ladders, ropes, and scaffolds; has
no limits as far as reaching, handling, fingering, and feeling with
the upper extremities; could occasionally push/pull or operate food
pedals with the lower extremities not to exceed 20 pounds; should
avoid concentrated exposure to extreme heat; should avoid all
exposure to vibrating equipment, as well as should avoid exposure
to unprotected heights; could drive and operate machinery on an
occasional basis, but no driving as part of work.
Tr. 327. Relying on vocational expert testimony, the ALJ concluded Brown could not perform
her past relevant work, but could perform work as a production assembler or small products
assembler, jobs that existed in significant numbers in the national economy.
II.

Discussion
Brown argues the decision must be reversed because the ALJ failed to include

fibromyalgia as a medically determinable condition at Step 2, and the credibility analysis is not
supported by substantial evidence.
The reviewing court does not reweigh the evidence presented to the ALJ and will defer to
the ALJ’s determinations regarding questions of fact, including the credibility of a claimant’s
testimony, as long as those determinations are supported by good reasons and substantial
evidence. Cline v. Colvin, 771 F.3d 1098, 1103 (8th Cir. 2014) (internal citations omitted).
Substantial evidence is relevant evidence that a reasonable mind would accept as adequate to
support the Commissioner’s conclusion. Andrews v. Colvin, 791 F.3d 923, 928 (8th Cir. 2015).
If, after reviewing the record, the court finds it is possible to draw two inconsistent positions
from the evidence and one of those positions represents the ALJ’s findings, then the court must
affirm the ALJ’s decision. Chaney v. Colvin, 812 F.3d 672, 676 (8th Cir. 2016).

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A.

The credibility determination

The ALJ found Brown’s complaints of back pain to be at least somewhat credible, and
accommodated those complaints, to the extent he did find them credible, in formulating the RFC.
But the symptoms Brown complained of were extreme, and the ALJ gave good reasons
supported by substantial evidence for concluding the complaints were not entirely credible.
The ALJ noted the lack of objective evidence to support Brown’s claims, which is an
appropriate reason to discount credibility. See 20 C.F.R. §§ 404.1529(a), (b)(3) and 416.929(a),
(b)(3) (addressing statements that are not consistent with medical and laboratory findings);
Travis v. Astrue, 477 F.3d 1037, 1042 (8th Cir. 2007) (ALJ may disbelieve subjective reports due
to inconsistencies). For example, Brown testified that she needs to spend 90 percent of her time
reclining or lying down, due to pain. But nowhere in her medical records does any provider ever
record such an extreme complaint. Even while pregnant, a condition that typically exacerbates
back pain, Brown had over a dozen appointments at which she did not complain of pain, and the
few times she did, she rated it at three on a pain scale, or attributed it to removal of her wisdom
teeth. She has not visited an emergency room for pain since 2004 when she had acute back pain
or an urgent care clinic since 2008 after having a car accident. When Brown saw Dr. Bowles in
January 2011 for “recheck” of fibromyalgia and back pain, he noted she was “spoiling for breast
reduction surgery.”
In addition, the nature and frequency of Brown’s treatment is disproportionate to the
degree of pain she claimed. The treatment was conservative.

Her providers recommended

weight loss, prescribed pain medication from time to time, and once referred her to a pain clinic.
She had injections in her back, which she reported completely resolved her pain for at least
awhile. In February 2011, Brown saw Dr. Green, the neurologist who had performed her back

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surgery in 2004, on referral from her primary care doctor. Dr. Green recommended conservative
treatment and instructed her to follow up if that did not work, but Brown never returned to see
him. Receiving conservative treatment and failing to seek follow-up treatment undermines a
complaint of disabling pain.

See Kisling v. Chater, 105 F.3d 1255, 1257 (8th Cir. 1997)

(conservative treatment indicates symptoms are not as severe as claimed); Estes v. Barnhart, 275
F.3d 722, 725 (8th Cir. 2002) (failure to seek regular and available medical treatment undermine
a claim of disabling pain); SSR 96–7P, 1996 WL 374186, *7 (July 2, 1996) (noting that “the
individual's statements may be less credible if the level or frequency of treatment is inconsistent
with the level of complaints”).
Furthermore, Brown’s doctor recorded no significant complaints of pain during multiple
prenatal visits in 2012; she saw a doctor about pain in February and November 2013, and did not
see a doctor again until July 2013, eight months later. The limited frequency of complaints and
large gaps between doctor visits also detracts from Brown’s credibility. Id.
The physical findings are also consistent with the ALJ’s determination.

The ALJ

observed Brown appeared to exaggerate her symptoms at the hearing, Tr. 331, a determination
from which an ALJ is entitled to draw conclusions concerning credibility, Johnson v. Apfel, 240
F.3d 1145, 1147-48 (8th Cir. 2001). In addition, Dr. Ash noted a “marked subjective component”
to Brown’s limp when he examined her, and Brown did not consistently present to her providers
with gait problems which, to the ALJ, raised the question whether she was exaggerating when
she presented to Dr. Ash. Tests were unremarkable, such as a November 2012 MRI of her back
that showed nothing new.
The ALJ also cited Brown’s work history, which spans 1999 to 2010, and reflects low or

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very low earnings in the 15-year period prior to the onset date. 2 Her earnings do not reflect that
she consistently worked full-time. Such evidence supports a conclusion that her impairments
were not the actual cause of absence from the work force. See Fredrickson v. Barnhart, 359
F.3d 972, 976 (8th Cir. 2004) (claimant not credible due in part to a sporadic work record and low
or no earnings).
The foregoing demonstrates the ALJ’s credibility determination was based on substantial
evidence.
Brown’s citations of opinion evidence fail to demonstrate otherwise.

For example,

Dr. Beesen opined that Brown is limited to three hours of sitting in an eight-hour work day, but
the ALJ gave that part of the opinion little weight because Dr. Beesen did not explain it, and it is
inconsistent with the medical evidence as a whole, including Brown’s treatment history. NP
McVicker is not an acceptable medical source. See 20 C.F.R. §§ 404.1527(c) and 416.927(c). In
any event, NP McVicker’s opinion was extreme and the ALJ gave it little weight because he saw
Brown very little, the opinion is inconsistent with the treatment record, and Brown’s treatment
was conservative overall.

Likewise, the ALJ gave significant weight only to the part of

Dr. Ash’s opinion that the doctor explained and was supported by the record, e.g., that Brown
could sit for six hours total, and that part does not support Brown’s argument. Brown points out
that Dr. Plowman agreed Brown might need work breaks. Assuming Brown did need them, the
doctor did not testify to how many, nor to how long they should be, nor to when they should
occur throughout the day.
Substantial evidence supports the ALJ’s determination concerning Brown’s credibility.

2

From 1999 to 2010, Brown earned between $901 and $9,837 per year, except
2005 and 2007-2009, when she earned between $15,439 and $18,137 per year.
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B. Fibromyalgia
Brown argues that the ALJ failed to properly evaluate her fibromyalgia under Social
Security Ruling 12-02p, which contains two variations of diagnostic criteria: the 1990 American
College of Rheumatology (ACR) Criteria for the Classification of Fibromyalgia, and the 2010
ACR Preliminary Diagnostic Criteria. 2012 WL 3104869, *2. The SSR expressly provides that
either may be used, and that the agency “may” find an individual has the condition if either is
met. Id. at *3. Here, the ALJ referred to the lack of evidence of 11 out of 18 trigger points,
which is part of the 1990 criteria, but not the 2010 criteria, which instead examines three
elements. Brown concedes she does not meet the former, but argues she established the latter,
and that the ALJ therefore should have included fibromyalgia at Step 2.
As noted, the SSR provides that the agency “may” find a claimant has fibromyalgia if the
criteria are met; the SSR does not require such a finding. At core, the criteria are subject to a
finding that the diagnosis is consistent with the record:
We will find that a person has a [medically determinable
impairment] of [fibromyalgia] if the physician diagnosed
[fibromyalgia] and provides the evidence we describe in section
II.A. or section II.B., and the physician’s diagnosis is not
inconsistent with the other evidence in the person’s case record.
Id. (emphasis added).
Here, the diagnosis of fibromyalgia, while it appears in places in Brown’s record, is not
consistent with other evidence in the record. Dr. Plowman reviewed Brown’s longitudinal
medical record, and found support for the conclusion that she had severe impairments of
degeneration of the lumbar spine and obesity, but not fibromyalgia. The doctor acknowledged
Brown had been prescribed fibromyalgia medication, but testified he “did not find a thorough
fibromyalgia evaluation checking tender points and documenting problems from fibromyalgia”

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other than fatigue. Tr. 360. Brown points to no such evaluation in the record.
Even Brown’s treating physicians did not agree she had fibromyalgia. For example,
neither Dr. Griffith nor Dr. Stinson included a diagnosis of fibromyalgia after seeing Brown in
2012 and 2013, respectively.
Nor did Brown herself mention “fibromyalgia” when she testified at hearing, or attribute
her symptoms to any impairment other than her back problems. When asked why she stopped
working, Brown told the ALJ it was because of pain, “mainly in my back.” Tr. 379-80.
The ALJ’s conclusion that fibromyalgia is not a medically determinable impairment, as
provided under SSR 12-02p, is supported by substantial evidence on the whole record.
In view of the foregoing, the Court will not address Brown’s remaining arguments
concerning the specific 2010 criteria.
III.

Conclusion

The Commissioner’s decision is affirmed.
s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: June 13, 2016
Jefferson City, Missouri

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