Symens v. Colvin

Filing 23

OPINION AND ORDER denying 15 Motion to Reverse. Signed by U. S. District Judge Roberto A. Lange on 3/4/14. (SKK)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
CENTRAL DIVISION

HELEN DENISE SYMENS,

CIV 13-3006-RAL
*

Plaintiff,

*

OPINION AND ORDER

vs.

AFFIRMING FINAL DECISION
CAROLYN W. COLVIN,
Commissioner of Social Security,

*

*

Defendant.

Plaintiff Helen Denise Symens seeks reversal of the Commissioner of Social Security's
decision denying Symens's application for Social Security Disability Insurance (SSDI) benefits.
Alternatively, Symens requests that this Court remand the case for a further hearing on issues she
has raised.

For the reasons explained below, this Court affirms the final decision of the

Commissioner of Social Security.
I.

Procedural Background

On August 8, 2009, Symens filed an application for SSDI benefits and attendant

Medicare under Title II and Title XVIII of the Social Security Act alleging disability since
January 10,2009, due to rheumatoid arthritis, Sjogren's Syndrome, degeneration of her cervical

spine, depression, recurrent infections and mouth sores, and side effects from her medications.

AR1 13,145,169. The Social Security Administration denied Symens's application initially on
December 22,2009, AR 74, and again upon reconsideration on March 4,2010, AR 82. In March

2010, Symens requested a hearing before an Administrative Law Judge (ALJ). AR86. TheALJ
conducted a hearing, AR 33, and issued a decision in May 2011 finding that Symens was not

'Citations to the appeal record will be cited as "AR" followed by the page or page numbers.

disabled and thus was not entitled to benefits, AR 13-28.

Symens then requested that the

Appeals Council review the ALJ's decision along with new evidence which request was denied
on December 19, 2012. AR 1-6.

II.

Factual Background

Symens was born on May 24, 1971. AR 38, 145. She obtained a bachelor's degree in
wildlife and fishery sciences from Arkansas Technical University in 1994, and a master's degree
in fishery biology from South Dakota State University in 1998. AR 38-39. Symens and her
husband Curtis have two children. AR 145, 258.
In 1998, Symens began working as a fish hatchery biologist at the United States Fish and

Wildlife Service fish hatchery in Yankton, South Dakota. AR 170, 257. She left her job in
Yankton in 2001 to take a position as a fisheries research associate at the University ofArkansas.
AR 170,257.

She held this position until 2006, when she and Curtis opened a grocery store in

Willow Lake, South Dakota. AR 170,257. The grocery store encountered financial difficulties
and closed in 2008. AR 40,232,257. Symens was enrolled in Lake Area Technical Institute's
licensed practical nurse program from August 2008 until July 2009. AR 39, 232, 258. She
stated that she was unable to complete the program due to pain. AR 39, 232. Symens's most
recent work attempt was as a Pampered Chef consultant from April 2010 to June 2010. AR 43,
232.

Symens's relevant medical history begins with a September 23,2008 appointment with

physician's assistant (P.A.) Louann Streff. AR 390. Symens complained ofjoint pain and P.A.
Streff suggested that she take ibuprofen. AR 390. Symens saw Dr. Rebecca Pengilly, her family
physician, on September 30,2008. AR 329. Symens explained that she had developed pain and

stiffness in her hands approximately three months ago. AR 329. She also reported pain in her

knees and sometimes her ankles. AR 329. Dr. Pengilly examined Symens and found a "little
bit" of redness and warmth of the metacarpophalangeal (MCP) joints and a "touch" of swelling
of the proximal interphalangeal (PIP) joints. AR 329. Symens hands were tender with flexion
and extension. AR 329. Although Symens's knees cracked when she bent them, Dr. Pengilly

found no problems at that time with Symens's wrists, elbows, shoulders, ankles, hips, or toes.
AR 329. AR 344. Dr. Pengilly assessed Symens as having polyarthralgia and prescribed a short

course of Prednisone.2

AR 329.

Symens returned to P.A. Streff on October 1, 2008,

complaining of swollenjoints. AR389. P.A. Streffnoted some mild swelling in Symens's hands
and assessed Symens as having swollen joints. AR 389.

On October 8,2008, Symens saw Dr. Pengilly for joint pain, reporting pain in her wrists

and knees. AR 324. The previous prescription for Prednisone had helped ease Symen's pain,
but had not resolved the issue. AR 324. Dr. Pengilly's examination revealed that Symens had
tenderness in her MCP joints but not much swelling, and some swelling of her PIP joints. AR
324. Dr. Pengilly noted that Symens's wrists had a full range of motion and were not swollen

and that her shoulders and elbows were fine. AR 324. Dr. Pengilly assessed Symens as having
polyarthralgia, recommended that she see a rheumatologist, and prescribed Relafen3 and Ultram.4
AR 324.

2Prednisone is a corticosteroid used as an anti-inflammatory or immunosuppressant

medication. See Drugs.com, Prednisone, http://www.drugs.com/prednisone.html (last visited Feb.
17,2014).

3Relafen is a nonsteroidal anti-inflammatory drug used in the treatment of arthritis. See

Drugs.com, Relafen, http://www.drugs.com/relafen.html (last visited Feb. 17, 2014).

4Ultram, or Tramadol, is a narcotic-like pain reliever used to treat moderate to severe pain.

See Drugs.com, Ultram, http://www.drugs.com/ultram.html (last visited Feb. 17, 2014).
3

Symens saw P.A. Streff on October 27,2008, for a follow up on a previous diagnosis of

hypothyroidism.5 AR 388. Symens also complained of problems with her eye and pain in her
hands. AR 388. P.A. Streff examined Symens but did not find much in the way of joint
swelling, noting that there "might be a little bit" of swelling in Symens's hands but "certainly

nothing grossly inflamed." AR 388. P.A. Streff assessed Symens as having joint pain and
hypothyroidism. AR388.

Symens saw Dr. Wayne Snyder, her opthamologist, on January 6, 2009.

AR 288.

Symens had experienced eye trouble in the past, being assessed or diagnosed with retinoschisis,6
AR 277, 245, 280, possible uveitis,7 AR 245, 254, and episcleritis,8 AR 254, 280. Dr. Snyder
diagnosed Symens with retinoschisis. AR 292.

Symens revisited P.A. Streff on January 7,2009, reporting neck pain for which she had
seen a chiropractor. AR 386. P.A. Streffs examination of Symens showed tenderness in the

5 "Hypothyroidism is a condition in which the thyroid gland does not make enough thyroid
hormone." MedlinePlus, U.S. National Library of Medicine, National Institutes of health,
http://www.nlm.nih.gov/medlineplus/ency/article/000353.htm(lastvisitedFeb. 17,2014). Symens
took Synthroid to treat her hypothyroidism. AR 330, 381.

6"Retinoschisis means splitting of the eye's retina into two layers." NORD, Retinoschisis,
http://www.rarediseases.Org/rare-disease-information/rare-diseases/byID/517/viewAbstract
visitedFeb. 17,2014).

(last

7"Uveitis is swelling and irritation of the uvea, the middle layer of the eye." MedlinePlus,
U.S.
National
Library of Medicine, National
Institutes
of health,
http://www.nlm.nih.gov/medlineplus/ency/article/001005.htm (last visited Feb. 17,2007). "Uveitis
can be caused by autoimmune disorders such as rheumatoid arthritis or ankylosing spondylitis,
infection, or exposure to toxins. However, in many cases the causes is unknown." Id

8"Episcleritis is irritation and inflammation of the episclera, a thin layer of tissue covering

the white part (sclera) of the eye. It occurs without an infection." MedlinePlus, U.S. National
Library
of
Medicine,
National
Institutes
of
health,

http://www.nlm.nih.gov/medlineplus/ency/article/OO 1019.htm (last visited Feb. 17,2014). The cause
ofEpiscleritis is usually unknown but it may occur with certain diseases such as rheumatoid arthritis
and Sjogern's syndrome. Id

paravertebral musculature and around the cervical spine. AR 386. An x-ray revealed no gross

bony abnormalities. AR 386. P.A. Streff assessed Symens as having neck pain and prescribed
Flexeril.9 AR386.

Symens had her first visit with her rheumatologist, Dr. Christine Halligan, on January 12,

2009. AR 456. Symens explained that she developed joint pain shortly after she developed

scleritis10 and that she now had pain in her wrists, elbows, shoulders, knees, ankles, feet, and
MCP and PIP joints. AR 456. She described her pain as being worse in the morning but present
all day, having swelling in her hands and feet, and having difficulty making a fist. AR 456.
Symens stated, however, that her joint pain "essentially resolved" while she was on Prednisone.
AR 456. Dr. Halligan's examination of Symens revealed bilateral synovitis1' in the first, second,
and third MCP joints, the second and third PIP joints, and wrists. AR 454. Symens also had
diffuse synovitis in her metatarsals. AR 454. Symens's gait and cervical and lumbar range of
motion was appropriate for her age and her proximal and distal strength in her upper and lower
extremities was intact.

AR 454.

She was able to make a fist bilaterally and had weak to

moderate grip strength. AR 454. Dr. Halligan's impressions from the appointment were that
Symens had a positive rheumatoid factor, a new onset of visual changes in her left eye, and

9Flexeril is a muscle relaxant used to treat skeletal muscle conditions such as pain or injury.
See Drugs.com, Flexeril, www.drugs.com/flexeril.html (last visited Feb. 17, 2014).

10There was some confusion among Symens and her doctors concerning which eye conditions,
she had. Although several of her doctors mentioned in their treatment notes that Symens had
scleritis, Dr. Halligan ultimately concluded that Symens had never been diagnosed with this
condition. AR441.

""Synovitis is the inflammation of a synovial (joint-lining) membrane, usually painful,

particularly on motion, and characterized by swelling, due to effusion (fluid collection) in a synovial
sac." Health Central, Synovitis, http://www.healthcentral.com/encyclopedia/408/628.html (last
visited Feb. 17, 2014). "Rheumatoid arthritis involves synovitis. In rheumatoid arthritis, the
synovial membrane lining the joint becomes inflamed." Id.

inflammatory arthritis. AR 454. Dr. Halligan ordered x-rays, prescribed a course ofPrednisone,
and started Symens on Methotrexate12 shortly thereafter.

AR 452.

Because Symens had

complained of a bright light in her left eye, Dr. Halligan had her see Dr. Eric Thomas, an

opthamologist, that same day. AR 251,450. Dr. Thomas's impressions were that Symens had

a history of "episcleritis/uveitis" and retinoschisis. AR 252. He stated that "overall things with
[Symens's] eyes look to be quite stable

[s]he does have a mild amount of retinoschisis,

however this is very common, and is most likely not related to the rheumatoid arthritis at all."
AR252.

Symens saw Dr. Pengilly on January 23, 2009, for a painful spot in her mouth. AR 322.
Dr. Pengilly assessed Symens as having herpes labialis and prescribed Symens Acyclovir.13 AR
322. Symens saw Dr. Pengilly again on February 4, 2009, for pain in her right foot. AR 321.
Symens reported that she was having difficulty walking. AR 321. Although x-rays from the
appointment showed a small post calcaneal spur, there was no evidence of fracture, periosteal
reaction, or significant arthritic change. AR 318, 321, 332. Dr. Pengilly prescribed Ultram,

placed Symens in a walking boot for a week, and referred her to Dr. Shannon Engel, a podiatrist.
AR 321. Dr. Engel's February 10,2009 examination of Symens revealed pain in both feet at the
metatarsal phalangeal joints one through five but a normal range of motion in the ankles and

12Methotrexate is used to treat, among other things, severe rheumatoid arthritis that cannot

be controlled by certain other medications.

See U.S. National Library of Medicine, National

Institutes ofhealth, http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682019.html (last visited
Feb. 17,2014).

13Acyclovir is an antiviral drug used to treat infections caused by herpes viruses. See

Drugs.com, Acyclovir, http://www.drugs.com/acycvlovir.html (last visited Feb. 17, 2014).

subtalar joints. AR 318. Dr. Engel hoped that Symens's rheumatoid arthritis medication would
help with the pain and recommended icing, limited activity, and insoles. AR 318.

Symens saw Dr. Halligan again on March 13,2009. AR 450. She reported that her neck

and back were doing fairly well but that she was having severe foot pain and had difficulty
standing for prolonged periods. AR 448-49. Symens had some mild tenderness in her fourth and
fifth metatarsals on the right but her feet were not swollen and she did not indicate any
significant amount of discomfort with palpitation. AR 448. Dr. Halligan observed some
tenderness in Symens's wrists and noted that Symens may have some swelling there. AR 448.
A joint examination showed no obvious synovitis in Symens's upper or lower extremities. AR
448. Symens's gait and cervical and lumbar range ofmotion was appropriate for her age and her
proximal and distal strength in her upper and lower extremities was intact. AR 448. The x-rays
of Symens's hands, feet, and chest from her prior appointment were unremarkable. AR 450. Dr.

Halligan's impressions from the appointment were that Symens had episcleritis in her left eye,
a positive rheumatoid factor, and inflammatory arthritis. AR 448. She noted that Symens
"continues to have joint symptoms despite currently treatment [sic]." AR 448. Dr. Halligan

noted that the Methotrexate was not "fully efficacious" at that time and prescribed Humira14 and
Mobie15 for Symens's pain. AR 446-47.

14Humira reduces the effects ofa substance in the body that can cause inflamation and is used

to treat rheumatoid arthritis. See Drugs.com, Humira, http://www.drugs.com/humira html (last
visited Feb. 17,2014).

15Mobic is a nonsteroidal anti-inflammatory drug used to treat pain or inflammation caused

by rheumatoid arthritis. See Drugs.com, Mobic, http://www.drugs.com/mobic.html (last visited Feb
17,2014).

Symens returned to Dr. Pengilly on April 3, 2009, because of neck pain. AR 317. Dr.

Pengilly noted that a recent x-ray showed "a little bit of narrowing" between C6 and C7 of
Symen's spine but was otherwise "ok." AR 317. Symens had a full range of motion in flexion

and extension of her neck, but it hurt to turn her head in either direction and she had pain in her

strap muscles upon palpitation. AR 317. Dr. Pengilly assessed Symens as having a cervical
strap muscle strain with spasms and prescribed Ultram. AR 317. Symens saw Dr. Pengilly again

on April 27, 2009. AR 316. Symens reported that she had a fever, neck pain, a headache,
fatigue, and nausea. AR 316. Dr. Pengilly assessed Symens as having an upper respiratory
infection and prescribed Mobic. AR 316.

Symens visited Dr. Halligan for a reevaluation on May 12, 2009. AR 445. Symens

reported that she was eighty to ninety percent improved. AR 445. Although she still had pain
in her neck and feet and stiffness in the morning, these problems had lessened. AR 445. Symens

showed no obvious synovitis in her upper or lower extremities, some tenderness to palpitation
in her right hand MCP, and no tenderness to palpitation in her metatarsals. AR 444. Symens's
gait and cervical and lumbar range of motion were appropriate for her age as was her proximal
and distal strength in her upper and lower extremities. AR 444. Dr. Halligan's impressions were

that Symens had episcleritis in her left eye, a positive rheumatoid factor, and inflammatory
arthritis.

After noting that Symens was "much improved" on Humira, Dr. Halligan

recommended that Symens continue her current protocol. AR 443.

On June 6, 2009, Symens saw Dr. Pengilly for itchy eyes.

AR 315.

Dr. Pengilly

remarked in her notes that Symens had a history of anxiety and depression and that Symens was

taking Zoloft.16 AR 315. Dr. Pengilly assessed Symens as having "[ajllergic conjunctivitis,
possibly superimposed fungal infection," and anxiety with depression. AR 315. She prescribed
a short course of Diflucan.'7 AR 315.

Symens saw Dr. Snyder on June 19,2009, for eye pain. AR 300. Dr. Snyder diagnosed
Symens with stable retinoschisis and optic neuritis.18 AR 302. On June 23,2009, Dr. Halligan

consulted with Dr. Snyder concerning how Symens's arthritis medication was affecting her left
eye. AR 442. After Symens had an MRI, Dr. Snyder did not think that she had any swelling of

the optic nerve or an underlying infection. AR 442. Thus, he felt that Symens could continue
with immunosuppression. AR 442.

Symens saw Dr. Pengilly primarily for herpes labialis on June 24, 2009. AR 314.

Symens complained of fatigue, pain and swelling in the right wrist, and pain in the right ankle
and foot. AR 314. An examination showed that Symens had a little bit of swelling of the right
wrist and pain with flexion or extension and pain on the top of her right foot but no swelling or

loss of range of motion. AR 314. Dr. Pengilly assessed Symens as having herpes labialis,
rheumatoid arthritis,

and right wrist and foot pain that was "possibly secondary" to the

16Zoloft is a selective serotonin reuptake inhibitor used to treat depression and anxiety. See

Drugs.com, Zoloft, http:www.drugs.com/zoloft.html (Last visited Feb. 18, 2014).

17Diflucan

is

a

antifungal

antibiotic.

See

http://www.drugs.com/diflucan.html (last visited Feb. 18, 2014).

Drugs.com,

18Optic neuritis is an inflamation of the optic nerve.

Diflucan,

See Mayo Clinic,

http://www.mayoclinic.org/diseases-conditions/optic-neuritis/basics/definition/con-20029723 (last

visited Feb. 18,2014).

rheumatoid arthritis. AR314. Dr. Pengilly prescribed Valtrex19 and a Medrol20 dose pack. AR
314.

Symens visited Dr. Pengilly on July 8,2009, for ear pain. AR 313. Dr. Pengilly noted

that Dr. Halligan had taken Symens off of Methotrexate and Prednisone to allow Symens's cold
sores to resolve. AR 313. A wrist examination revealed "a bit" of swelling and some pain. AR
313. Dr. Pengilly prescribed a Medrol dose pack and told Symens to come back in a week to ten
days. AR 313. If Symens's cold sores had resolved by that time, Dr. Pengilly would call Dr.
Halligan and have her restart Symens on Methotrexate and Prednisone. AR 313. Symens saw
P.A. Streff the following day for urinary problems and lower back pain. AR 380. P.A. Streff
assessed Symens as having a probable urinary tract infection and prescribed an antibiotic. AR
380. Symens revisited P.A. Streff on July 13,2009, this time complaining of right ear pain. AR
379. P.A. Streff assessed Symens as having otitis externa and prescribed ear drops. AR 379.
Symens saw Dr. Pengilly for a recheck on July 20, 2009. AR 312. Symens reported

swelling in her wrists and "being really achy and tired[.]" AR 312. On physical examination,
Dr. Pengilly noted that Symens looked "very tired," that her wrists were "a bit" swollen and

tender, and that her CMP joints were tender but not swollen. AR 312. Although Symens's

herpes labialis had resolved, Dr. Pengilly thought that Symens's rheumatoid arthritis had
worsened since she stopped taking Methotrexate. AR 312. Dr. Pengilly restarted Symens on

19Valtrex is an antiviral drug that is used to treat infections caused by herpes viruses. See
Drugs.com, Valtrex, http://www.drugs.com/valtrex.html (last visited Feb. 18, 2014).

20Medrol is a corticosteroid used to treat arthritis and skin conditions. See Drugs.com,

Medrol, http://www.drugs.com/cdi/medrol.html (last visited Feb. 18, 2014).
10

Methotrexate and gave her a short course of Prednisone to get her rheumatoid arthritis under
control. AR312.

Symens returned to Dr. Pengilly on August 3,2009, for neck pain. AR 311. Dr. Pengilly

remarked that Symens was trying to go back to school and that "some of [her neck pain] is stress.
She also has a history ofrheumatoid arthritis and she has still some joint swelling and pain." AR
311. On examination, Dr. Pengilly noted that Symens appeared tired, had some swelling of the

MCP joint, and had a limited range ofmotion in her neck with pain in the cervical strap muscles

down into the trapezius. AR 311. Dr. Pengilly prescribed Mobic and Ultram and recommended
that Symens see Dr. Halligan. AR 311.

Symens's neck pain persisted and she saw Dr. Pengilly again on August 7,2009. AR310.
Symens reported pain in her neck, numbness in her hands, and swelling in her wrists and MCP

joints. AR 310. An examination showed that Symens had some swelling in her wrists and the
MCP joint but that she could flex and extend and her grip was "okay." AR 310. Symens had a
positive Phalen's maneuver on both sides with the right being worse than the left. AR 310. She

also had a positive Tinel's test on the right and a weakly positive Tinel's sign on the left.21 AR
310. Dr. Pengilly assessed Symens as having rheumatoid arthritis and bilateral carpal tunnel

syndrome.22 AR 310. She thought that Symens's rheumatoid arthritis was causing the carpal
21-

The Tinel's test and Phalen's maneuver are both commonly used to detect carpal tunnel

syndrome. See WebMD, http://www.webmd.com/pain-management/carpal-tunnel/physical-exam-

for-carpal-tunnel-syndrome (last visited Feb. 18, 2014).
22n/

"Carpal tunnel syndrome occurs when the median nerve is compressed because of swelling
of the nerve or tendons or both. The median nerve provides sensation to the palm side of the thumb,

index, middle finger, and the inside half of the ring finger. It also gives power to, or innervates,'

muscles in the forearm and hand that allow a pincher grasp (the ability to grasp an object between the
thumb and forefinger). When this nerve becomes impinged, or pinched, numbness, tingling, and
sometimes pain of the affected fingers and hand may occur and radiate into the forearm." WebMD,

http://www.webmd.com/pain-management/carpal-tunnel/carpal-tunnel-syndrome (last visited Feb!
11

tunnel syndrome. AR310. Dr. Pengilly prescribed a Medrol dose pak. AR310. A lab test from
August 9, 2009, as well as lab testing at later times showed that Symens had an elevated Creactive proteins (CRP) level, likely related to the rheumatoid arthritis.23 AR 267; see AR 335,
434, 463-64, 546.

Symens saw Dr. Halligan for a reevaluation on August 12, 2009. AR 441. Symens

complained of pain in her wrists, MCP joints, knees, feet, and neck, as well as swelling of her

right wrist. AR 440. Symens stated that her pain was worse in the morning or after she had
engaged in strenuous activity and that she "was a nursing student but [did] not feel that she
would be able to do this due to the degree of fatigue that she has." AR 440. On examination,
Dr. Halligan noted aphthous ulcers on Symens's gums, no obvious synovitis in her upper or
lower extremities, no tenderness upon palpitation in the MCP and PIP joints, and no tenderness
over fibromyalgia trigger points. AR 439-40. Symens had excellent grip strength, her gait and
cervical and lumbar range of motion were appropriate for her age, and her proximal and distal
strength in her upper and lower extremities was intact.

AR 439.

In her notes from the

appointment, Dr. Halligan stated:

I discussed with the patient I think it is likely that she [has] rheumatoid
arthritis as the cause of her multiple joint symptoms. I see no evidence
of synovitis on her examination. I have discussed with the patient that
her degree of pain seems to be out of proportion to what her physical
examination would explain. She believes the prednisone has helped her
only 50%.

18,2014).

23"C-reactive protein is produced by the liver.

The level of CRP rises when there is

inflammation throughout the body." U.S. National Library ofMedicine, National Institutes ofhealth,

http://www.nlm.nih.gov/medlineplus/ency/article/003356.htm (last visited Feb. 18,2014). A CRP

test is sometimes used to check for rheumatoid arthritis, although it is not necessarily definitive. IcL
12

AR 439. Dr. Halligan remarked that she wanted to see whether Symens showed signs of
synovitis when Dr. Pengilly started her on Prednisone. AR 438. Dr. Halligan took Symens off

of Methotrexate due to Symens's aphthous ulcers, but recommended that Symens continue with
the Humira, use Prednisone for pain, and begin taking Arava.24 AR 438. Dr. Halligan also
ordered several lab tests and cervical spine x-rays. AR 438. Symens's spine x-rays showed

"[fjocal disc space narrowing at C6-C7 with straightening of the normal cervical lordosis in
neutral position but no subluxation as described[,]" AR 484.

In conjunction with her application for disability benefits, Symens completed a disability
report on August 23,2009. AR 168. Symens stated in the report that her pain and fatigue made

it difficult for her to concentrate and limited her ability to do household chores and engage in
physical activity. AR 169,180. She described her pain as being so severe on some days thatsit
prevented her from doing anything around her house. AR 180. Symens's application stated:
I told my doctor that I had been thinking of applying for SSDI, and she
said she thought I could work. To be honest, I just cried, and said I am
not the kind of person to just quit work and my dreams, but it is hard
when I can't walk without pain and have trouble getting out of bed due
to fatigue.
AR 180.

Symens saw P. A. Streff on August 24,2009 for urinary problems. AR 378. Symens also

complained of an increase in joint pain and swelling. AR 378. P.A. Streffprescribed Diflucan.
AR 378.

24Arava reduces swelling and infiamation in the body and is used to treat rheumatoid arthritis

symptoms. See Drugs.com, Arava, http://www.drugs.com/arava.html (last visited Feb. 18, 2014).
13

Symens saw Dr. Pengilly on September 9,2009, because she was concerned that she had

a urinary tract infection. AR 347. An exam showed that Symens had a "little bit" of swelling
in her left wrist but that the rest of her extremities were normal. AR 347. Dr. Pengilly assessed
Symens as having a history of urinary irritation with nausea and rheumatoid arthritis. AR 347.
Dr. Pengilly noted that Symens had been prescribed Cipro while in California and had been

taking it for ten days and prescribed Zofran.25 AR 347. Symens continued to have urinary
problems and saw Dr. Karam Pathan, a urologist, on September 24,2009. AR 352. Dr. Pathan

examined Symens and found that her extremities were normal. AR353. He assessed Symens
as having recurrent urinary tract infections and ordered several tests. AR 353.
Symens completed a function report on September 3 0,2009. AR 197. She indicated that
she cared for her two children, ages six and nine, and described her activities as including
washing dishes, doing laundry, mowing, cooking basic meals, getting groceries when she was
in town, paying bills, and helping her children with their homework and preparing them for bed.
AR 197,199,200. Symens stated, however, that her pain and other symptoms sometimes made

it difficult or impossible to do some of these activities. AR 197,199,200. She also described
needing to rest frequently throughout the day, AR 197, being unable to lift more than eight
pounds, and only being able to walk twenty to thirty minutes before needing to rest, AR 202.
Symens returned to Dr. Pathan on October 8, 2009, for a cystoscopy.26 AR 354. The
cystoscopy showed proximal narrowing in the urethra and descent in the bladder floor. AR 354.

25Zofran blocks the actions of chemicals in the body that can trigger nausea and vomiting.
See Drugs.com, Zofran, http://www.drugs.com/zofran.html (last visited Feb. 18, 2014).

26A cystoscopy is a test that allows a doctor to view the inside of the bladder and the urethra.

WebMD, http://www.webmd.com/a-to-z-guides/cystoscopy-16692 (last visited Feb. 18, 2014).
14

Dr. Pathan remarked that the combination ofthese conditions and Symens's immune suppressive
medication presented an ideal situation for recurrent urinary tract infections. AR 354.
Symens saw P.A. Streff on October 13,2009, for flu symptoms and ongoing nausea. AR

426. P.A. Streff prescribed Tamiflu and Zofran. AR426. Symens saw P.A. Streff again on
October 27,2009, this time for neck pain. AR 425. An exam revealed palpable muscle spasms
in Symens's upper trapezius. AR425. P.A. Streff prescribed Flexeril. AR425.
Symens saw Dr. Halligan for a reevaluation on November 5, 2009. AR 436. Symens
reported intermittent paresthesias in her hands and feet and swelling in her hands. AR 435. On
examination, Symens had no obvious synovitis, a normal range of motion, an appropriate gait,

and intact strength in her upper and lower extremities. AR 434. She was not tender over

fibromyalgia trigger sites. AR434. Although Dr. Halligan told Symens that rheumatoid arthritis
was likely causing Symens's symptoms, she expressed some concern that Symens may have
"some noninflammatory muscle and joint pain." AR 432-33. Dr. Halligan diagnosed Symens
as having rheumatoid arthritis, paresthesias, and a history of retinoschisis.

AR 432.

She

recommended that Symens continue taking Humira and Arava, and that she take Tramadol as
needed for her pain. AR 433.

Symens visited P.A. Streff on November 9,2009, complaining ofconsiderable right foot

pain. AR 424. An examination of Symens's extremities showed tenderness but no swelling.
AR 424. X-rays of Symens's foot showed a small posterior calcaneal spur but no evidence of
arthritic change, fracture, or periosteal reaction. AR 415,424. P.A. Streff assessed Symens as
having foot pain and told her to continue taking her current medications. AR 424.

Several doctors conducted assessments of Symens in relation to her application for SSDI

benefits. At the South Dakota Department ofHuman Services' behest, Symens saw psychologist
15

Frank Dame on December 14, 2009. AR 256. Symens reported that her rheumatoid arthritis
caused her constant chronic pain and that her activities were restricted because ofjoint pain and
stiffness in the feet, ankles, hands, wrists, neck, and knees. AR 258. She stated that she could
not comfortably bend, stoop, lift, carry, stretch, walk for more than 100 yards, or sit for longer

than fifteen to twenty minutes. AR 258. Symens said that she was painful and stiff in the
morning and that her wrist pain impaired her ability to dress. AR 259. She reported going back

to bed after getting her children ready for school and then getting up and showering, dressing,
vacuuming, and doing laundry and book work. AR 259. Symens noted, however, that she was

only able to engage in those tasks for twenty to thirty minutes, that she required twenty minutes
of rest afterwards, and that she felt "intense pain in her hands and neck" after more than thirty
minutes ofactivity. AR 259. Symens shopped for groceries despite her pain and prepared dinner
three times a week. AR 259. On other days Symens relied on prepared foods or sandwiches and
soup. AR 259. Dr. Dame noted that Symens had to stand and stretch several times during the

appointment, but found that Symens's concentration and attention were "only mildly and
periodically impaired[.]" AR 259-60.

When discussing Symens's mental status, Dr. Dame

remarked: "In her emotional presentation there was evidence of depression, some anxiety and

the former appeared to reach clinically significant levels of severity." AR 259. Dr. Dame

concluded that "the results of the present examination indicate that [Symens] is seriously
disabled by virtue of the medical diagnosis of rheumatoid arthritis." AR 261.
Dr. K. Terry, a non-examining state-agency physician, completed a physical residual

functional capacity (RFC) assessment of Symens on December 16, 2009. AR 356-363. Dr.
Terry found that Symens could lift 20 pounds occasionally, lift 10 pounds frequently, and could
stand and/or walk for approximately six hours or sit for about six hours within an eight-hour
16

work day. AR 357. He noted that Symens did have some postural limitations, however, finding
that Symens could only occasionally climb, stoop, kneel, crouch, and crawl. AR 358. In the
"additional comments" section ofthe RFC form, Dr. Terry noted that Symens had shown normal
strength and gait during a March 2009 appointment and a functional range of motion during a
November 2009 appointment. AR 363. Dr. Terry stated that Symens's rheumatoid arthritis

medication had improved her symptoms and that although he found her statements mostly
credible, she was expected to continue to improve. AR 363.

On January 12, 2010, Symens saw Dr. Eric Peterson, an orthopedic surgeon, for

evaluation of her right wrist. AR 430. Symens reported pain in her right wrist and thumb and
weakness when trying to open bottle caps or buttoning buttons. AR 430. An examination

showed that Symens had a positive Finkelstein's test27 on the right, "5/5" strength against
resistance in her wrist, and full active motion in her hand and arm motions. AR 430. Dr.
Peterson also noted an equivocal cyst on Symens's right wrist. AR 430. He diagnosed Symens

with, among other things, right de Quervain's tenosynovitis, and recommended a steroid
injection and physical therapy.

On January 20, 2010, Symens saw Dr. Greg Mumm, one of Dr. Halligan's associates.

AR 557. Symens reported joint pain, morning stiffness with pain worsening at the end of the
day, episodic paresthesias in her hands and feet, and pain in her right hip while driving. AR 557.

Dr. Mumm noted that Symens's lab work from earlier that month was all within normal limits

See

The Finkelstein test is used to confirm whether a patient has de Quervain's tenosynovitis.

Mayo

Clinic,

http://www.mayoclinic.org/diseases-conditions/de-quervains-

tenosynovitis/basics/tests-diagnosis/con-20027238 (last visited Feb. 14, 2014). De Quervain's
tenosynovitis is a painful condition affecting the tendons on the thumb side of the wrist. See Mayo

Clinic,

http://www.mayoclinic.org/diseases-conditions/de-quervains-

tenosynovitis/basics/defmition/con-20027238 (last visited February 18, 2014).
17

and that her hand and foot x-rays from January 2009 showed no evidence of erosive disease. AR
557. An examination revealed a positive Finkelstein's test and mild tenderness in Symens's

hands and right hip. AR 558. There was no definite synovitis, however, and Symens had a
normal range ofmotion in her hands, wrists, elbows, shoulders, hips, ankles, and knees. AR 558.
She also had a negative Phalen's maneuver and normal fine touch sensation and motor strength.
AR 559. Dr. Mumm's impressions were seropositive rheumatoid arthritis with persistent joint
pain and episodic paresthesias in the hands and feet.

AR 559.

Dr. Mumm opined that the

Arava could be causing Symens's paresthesias and ordered an EMG. AR 559. He also ordered
an MRI of Symens's right foot to "better evaluate for evidence of synovitis." AR 559.
Symens completed a second disability report on January 27, 2010, in which she stated
that her memory, fatigue, flu-like symptoms, paresthesias, and pain had worsened. AR 206,
207. She stated further that her pain and fatigue limited her ability to drive, do housework, and
care for herself. AR 213. Dr. Larry Vander Woude, a non-examining state-agency physician,
reviewed Symens's file on February 24,2010. AR 506. He affirmed Dr. Terry's assessment and

noted that Symens most recent appointment with a rheumatologist showed no active synovitis.
AR 506.

Symens saw Dr. Mumm again on April 20,2010. AR 551. Dr. Mumm remarked in his

notes that the MRI of Symens's right foot revealed no inflammatory changes or synovitis but did
show some mild degenerative joint disease at the first MTP joint. AR 540, 551, 553. Dr.
Mumm's impression was that Symens's paresthesias in her hands and feet had improved since
January and that an EMG study concerning this ailment was "reassuring."

18

AR 551, 553. Dr.

Mumm noted that in March he had switched Symens from Humira to Enbrel28 to see if she got
greater symptomatic relief. AR 551. Although Symens felt better on the Enbrel and Arava then

she did on the Humira and Arava, she still complained of longstanding fatigue and pain that was
aggravated by walking or using her hands a lot. AR 551, 553. Other than mild tenderness over

her right MCP joint, Symens's joint examination was unremarkable; she had no swelling and
displayed a full range of motion in her hips, knees, and shoulders. AR 552. Under the
"Recommendations" section of his notes, Dr. Mumm stated: "I reassured her that I do not find

much evidence to suggest disease activity of a rheumatoid arthritis as the cause for arthralgias.
I explained to her that in some cases, patients can have fatigue and arthralgias for other reasons
...." AR553.

Symens sawP.A. StreffonMay3,2010. AR578. An examination showed that Symens
had "many aphthous ulcers" in her mouth and P.A. Streff prescribed Clotrimazole.29 AR 578.
Dr. Halligan reevaluated Symens on July 27,2010. AR 540. Symens complained ofpain in her
wrists with the right wrist being more painful than the left, and pain in hands, feet, and neck. AR
540, 541. Symens denied functional loss but reported that her discomfort made daily living

activities difficult. AR 541. Symens further reported that she had a fever, felt sickly when her
joints pained her, and was fatigued. AR 541. Although an examination revealed no obvious
swelling or synovitis in Symens's upper or lower extremities, she had pain in her wrists upon

palpitation, tenderness in her hands, and pain with range ofmotion in her ankles and metatarsals.

28Enbrel is used to treat the symptoms of rheumatoid arthritis and to prevent joint damage.

See Drugs.com, Enbrel, www.drugs.com/enbrel.html (last visited February 18, 2014).
29n/

"Clotrimazole is an antifungal medication."
Drugs.com,
http:www.drugs.com/mtm/clotrimazole.html (last visited Feb. 18, 2014).
19

Clotrimazole,

AR 542. Symens had an appropriate gait and cervical and lumbar range of motion for her age,
and her proximal and distal strength in her upper and lower extremities was grossly intact. AR
542.

Symens was not tender over any fibromyalgia trigger points.

AR 543.

Under the

"Impression" section of her notes, Dr. Halligan stated:

I have discussed with the patient that... her pain is out of proportion
to what her examination would explain at this time. I do not see
obvious synovitis on her examination today. I have discussed with the
patient the reasons for this could be: 1. Subclinical synovitis. 2.
Chronic pain syndrome.

AR 543. Dr. Halligan ordered an MRI of Symens's right hand to determine whether there was
any synovitis. AR 543. Dr. Halligan diagnosed Symens as having rheumatoid arthritis and
multiple joint pains. AR 545.

Symens returned to Dr. Halligan on August 30,2010, for a follow up. AR 533. Symens
reported diffuse joint pain, mainly in her hands and feet. AR 533. She also complained of

fatigue, a cough, heart palpitations, nausea, depression, and problems sleeping. AR 533. An
examination showed no evidence ofsynovitis, a normal range ofmotion in Symens's extremities,

and no tenderness over fibromyalgia trigger sites.

AR 535.

Consistent with previous

examinations, Symens had an appropriate gait and cervical and lumbar range of motion for her
age, and her proximal and distal strength in her upper and lower extremities was grossly intact.

AR 535. Dr. Halligan noted that the MRI of Symens's right hand showed no evidence of
synovitis and concluded that rheumatoid arthritis was not causing Symens's pain at that time.

AR 536. Dr. Halligan diagnosed Symens as having chronic widespread pain in addition to
rheumatoid arthritis. AR 537. When discussing this diagnosis with Symens, Dr. Halligan
explained that fibromyalgia is a "subset" of chronic widespread pain. AR 536. Dr. Halligan

20

prescribed Neurontin30 to treat Symens's chronic widespread pain and physical therapy for her
fibromyalgia. AR536.

Dr. Halligan reevaluated Symens on December 2, 2010. AR 521. Symens reported

diffuse joint and muscle pain, including pain in her hands, wrists, shoulders, hips, knees, ankles,
and feet, but denied any loss of range of motion in her joints. AR 521. She also complained of
occasional paresthesias in her feet and trouble sleeping because of her pain. AR 521-22. An
examination showed no evidence of active synovitis, an appropriate gait and cervical and lumbar

range of motion, and normal proximal and distal strength in the upper and lower extremities.
AR 523. Although Symens had pain in her wrist with range of motion, her wrist examination
was "entirely normal." AR 523. Blood tests from that day showed that Symens had a positive

rheumatoid factor. AR 529,596. Dr. Halligan diagnosed Symens with rheumatoid arthritis and
chronic widespread pain. AR 525. She discussed with Symens the role of diet and exercise in
treating chronic widespread pain and recommended that Symens lose weight, engage in lowimpact aerobic exercise, start physical therapy, and continue her medications. AR 524-25.
Because Symens was unable to afford physical therapy, she stated that she would walk instead.
AR 524.

At a January 7,2011 appointment with P.A. Streff, Symens complained of numbness in

her feet that made it difficult to walk and pain in her toes. AR 567. Symens's feet were tender

to palpitation. AR567. P.A. Streffruled out the possibility ofneuropathy and assessed Symens
as having numb toes. AR 567. She ordered a nerve conduction study of Symens's legs and a test
to assess Symens's circulation. AR 567. Arterial testing of Symens's lower extremities on

30Neurontin is an anti-epileptic medication occasionally used to treat nerve pain. See

Drugs.com, Neurontin, www.drugs.com/neurontin.html (last visited Feb. 18, 2014).
21

January 11,2011, showed abnormal results that were "suggestive of significant peripheral arterial
disease in both legs." AR 508.

Upon a referral from Dr. Halligan, Dr. Thomas Ripperda saw Symens on January 20,

2011.

AR 590.

Symens reported her pain as being a "10/10" at times, having occasional

numbness or tingling in her hands, feet, and legs, and having some difficulty with balance. AR
590. She stated that walking, increased activity, and prolonged sitting aggravated her symptoms.

AR 590. On examination, Symens had "2+ dorsalis pedis pulses on the left and 1+ on the right."
AR 591. Symens had a good range of motion in her shoulders, elbows, wrists, fingers, knees,
ankles, and hips. AR 591. She also had good strength and normal muscular tone in her upper
and lower extremities and a normal gait pattern. AR 591. Dr. Ripperda's impression was that
Symens had, among other conditions, chronic polyarthralgias and seropositive rheumatoid

arthritis. AR591-92. He recommended Lidocaine ointment,31 an increased dosage of Tramadol,
and a wrist wrap. AR592.

Symens complained of foot coldness and numbness during a January 24, 2011
appointment with Dr. Gregory Schultz, a vascular surgeon. AR 586. Dr. Schultz noted that

Symens showed evidence of a "vasospastic condition" and prescribed Procardia.32 AR 586.
Symens saw Dr. Ripperda again on March 10,2011, for ongoing pain. AR 588. Symens

reported "aching and throbbing" pain that increased after she walked approximately 200 feet or
sat for a prolonged period of time. AR 588. She stated that although she did not have any

limitations in her bathing, grooming, or dressing activities, she believed that her symptoms

3'Lidocaine ointment contains a local anesthetic agent and is administered topically. See
Drugs.com, Lidocaine Ointment, http://www.drugs.com/pro/lidocaine-ointment.html (last visited
Feb. 18,2014).

32Procardia is used to prevent certain types of chest pain and may also be used to treat
Raynaud's

syndrome.

See

WebMD.com,

http://www.webmd.com/drugs/drug-10981-

Procardia+Oral.aspx?drugid=10981 (last visited Feb. 18,2014).
22

prevented her from working. AR 588. Symens reported a twenty-five percent improvement in

her symptoms while taking Tramadol extended release, but noted that the Tramadol made her
nauseated. AR 588. She took Zofran33 for the nausea but it made her dizzy. AR 588. An
examination of Symens's upper extremities showed a normal range of motion, "5/5" strength,
normal muscular tone, intact sensation, and no muscle atrophy.

AR 589.

In the

"Recommendations" portion ofhis notes, Dr. Ripperda stated that Symens "certainly has medical
reason to have [her persistent arthralgic symptoms] with her rheumatoid arthritisf.]" AR 589.

He prescribed a Butrans patch34 and recommended that Symens discontinue the TramadoL
because her nausea was limiting its therapeutic benefit. AR 589.
Dr. Halligan saw Symens again on March 17,2010. AR 510. Symens had started taking

Methotrexate again and reported that this caused an increase in nausea and mouth ulcers. AR

510. She stated further that although the Butrans patch improved her pain, it did not resolve it.
AR 510. Symens denied any swelling or loss ofrange ofmotion, but complained of diffuse joint
and muscle pain, paresthesias, and a change of color in her feet when they were cold. AR 511.

She also reported problems with thinking, her memory, and sleeping.

AR 510-11.

On

examination, Symens had a normal range ofmotion in her spine and extremities and her gait was
appropriate for her age. AR 512-13. Symens had intact proximal and distal strength in her upper
and lower extremities and showed no evidence of synovitis.

AR 512-13.

Under the

"Impressions" section of her notes, Dr. Halligan noted that Symens's vascular physician had

33Zofran

is

used to

treat

nausea

and vomiting.

http://www.drugs.com/zofran.html (last visited Feb. 18, 2014).

See

Drugs.com,

Zofran,

34A Butrans patch contains an opioid pain medication and is used to treat moderate to severe

chronic pain around the clock. See Drugs.com, Butrans, http://www.drugs.com/butrans html (last

visited Feb. 18, 2004).

23

diagnosed Symens with Raynaud's syndrome and stated that she agreed with this diagnosis
together with the prior diagnosis of rheumatoid arthritis and chronic widespread pain. AR 51314.

At a March 28,2011 appointment with P. A. Streff, Symens complained of her feet being

blue and purple then turning hot and red. AR 563.

Symens wondered whether this was a

reaction to certain medications she was taking for her Raynaud's syndrome.

AR 563.

On

examination, Symens's feet had a blue hue. AR 563. P.A. Streff assessed Symens as having
probable Raynaud's phenomenon and explained that while it was too soon to know whether
Symens's medications were causing her symptoms, Symens needed to keep her feet as warm as
possible. AR563.

Dr. Halligan reevaluated Symens on June 23,2011. AR 594. Although Symens's nausea
had improved since she switched to an injectable form of Methotrexate, she was still
experiencing stiffness and joint and whole body pain. AR 594. Symens said that she was able

to perform activities of daily living but that it was uncomfortable.

AR 594.

swelling in her MCP and PIP joints and described her fatigue as a "9/10."

She reported
AR 594.

An

examination showed no obvious synovitis, no swelling, excellent grip strength, an appropriate
gait and cervical and lumbar range of motion, and normal strength in Symens's upper and lower
extremities. AR 596. Symens had some mild tenderness with palpitation of her MCP joints but
was not tender over fibromyalgia trigger sites. AR 596. Dr. Halligan remarked in her notes that

Symens was "doing very well in regards to her inflammatory arthritis" and stated that she saw
"no evidence of active disease." AR 596. She diagnosed Symens with rheumatoid arthritis and

chronic widespread pain and recommended that Symens continue on her medications. AR 597.

24

Symens's hearing before the ALJ occurred on April 14, 2011. AR 33. Present at the
hearing were Symens, her attorney Rick Ribstein, her husband Curtis, and her sister Deanna Lee.
AR 35. Vocational expert Dr. William Tucker appeared by telephone. AR 35.

Symens testified that although she was receiving treatment for her rheumatoid arthritis,

she still had "a lot" of pain in her hands, feet, ankles, neck, wrists, and hips. AR 44. She felt a
throbbing pain in herj oints that became sharp upon use. AR 47-48. She described her pain level

as four to five during the day and a seven to eight in the evening. AR 49. When her feet got too

cold it felt "like a ten on the pain scale." AR 48. Symens complained that her pain occasionally
disrupted her sleep, AR 45, 54-55, and described feeling fatigued and like she had the flu, AR
45, 55, 56.

In regard to the limiting effects of her pain, Symens testified that when she engaged in

"housework, sweeping, you know, a lot where I'm on my feet—I'll pay for it in the evening." AR
45. Symens said she was usually able to use her hands, AR 45, but that wrist pain made it
difficult for her to open a medicine bottle, AR 46, and stir things when cooking, AR 55. When
her wrist pain flared up, she needed two hands to lift a full gallon of milk, AR 46, and had

difficulty brushing her hair, AR 55, AR 46.

Symens testified that she could only stand

comfortably for fifteen minutes, AR 50; that on approximately three days a week, the most she
could do for exercise was walking two hundred feet to the mailbox and back, AR 50-51; that
crouching and kneeling was painful, AR 51; and that driving for an hour caused great pain in her

hips, AR 44, 49. Symens was able to go grocery shopping, but not without discomfort, AR 50,
57; she testified that a recent hour-long shopping trip caused significant pain and swelling in her

feet, AR 47. She testified that her "rheumatologist nurse" had told her to stay off her feet and

25

to keep them elevated. AR 45. Symens did not believe that her doctors had ever restricted the
amount of weight she could lift, however. AR 45.

Symens testified that she was on a number of medications, including Neurontin,

Methotrexate, and Tramadol. AR 52. She said that the Neurontin and Tramadol caused her

dizziness and made her nauseated, and that the Methotrexate gave her mouth sores and made her
fatigued. AR52.

When asked to describe her typical day, Symens testified that her pain and flu-like
symptoms usually prevented her from doing anything until the afternoon. AR 55-56. If she felt

well enough, she would try to do one or two things, such as sweep the floor, wash the dishes, or
do the laundry. AR 56. Symens testified that she cooked for her children, but added that the
meals would be more simple if she was feeling poorly. AR 56. On a bad day, Symens would
lay in bed or her recliner or sleep twelve to fifteen hours. AR 56. Symens estimated that she had
four to five of these bad days a week. AR 56.

Curtis, who drove truck and was often away from home, testified that Symens would tell

him over the phone that she was nauseated and had throbbing feet that she needed to put up. AR
58. Curtis stated that Symens's wrists were tender to touch and recounted a time when her wrist

pain prevented her from carrying a pail of beans from the garden. AR 58-59. He also testified
that Symens was unable to carry dog food into the house and that when he was home he would
take care of their children and do some cooking so that Symens got a break. AR 60. Curtis
believed that Symens's condition was worsening. AR 60.

Lee, who lived in Arkansas and did not see Symens that often, testified that she had

noticed a "downhill slide" in Symens's health over the past two years. AR 61. Lee testified that

Symens would visit her in Arkansas "every now and then" but that it would take Symens two or
26

three days to recover from the trip. AR 62. Lee also stated that Symens had become less active

and often complained to Lee that she was in pain and felt like she had the flu. AR 61, 63.

. The ALJ also heard testimony from Dr. Tucker, the vocational expert. AR 64. Dr.
Tucker had completed a past relevant work summary in which he classified as "light" and
"skilled" Symens's jobs as a biologist, a graduate assistant, a fish culturist, and a retail store
manager. AR 233. The ALJ asked Dr. Tucker to assume a person of Symens's work experience

who could lift twenty pounds occasionally and less than ten pounds frequently; could sit six
hours in an eight-hour work day; could stand and walk combined for six hours in an eight-hour

work day; had no limits in reaching; could occasionally climb ladders and stairs; had frequent
but not constant use of the right hand for handling and gripping; could balance frequently but
otherwise crouch, kneel, stoop, and crawl only on occasion; had no visual limits with proper
glasses and no communications limits; and who had to avoid concentrated exposure to cold
temperatures, wetness, and high humidity. AR 65. The ALJ asked Dr. Tucker to assume further
that the hypothetical person was:

afflicted with pain and discomfort from a variety of sources that would
produce mild to moderate chronic pain and discomfort likely noticeable
at all times, but with appropriate medication, they could be active
within the limits I've described. They would, however, have mild limits
on activities of daily living, social functioning, and concentration,
persistence, and pace.

AR 65. Dr. Tucker testified that such a person could not perform Symens's past jobs because

although the Dictionary of Occupational Titles classified these jobs as light, the manner in which
she performed them required heavy physical demands. AR 65-66.

The ALJ then altered the hypothetical, asking Dr. Tucker to assume that the person's pain

and depression placed moderate limits on her persistence, pace, and ability to carry out details

27

and maintain extended concentration. AR 66. Dr. Tucker testified that such limitations would
likely preclude a person from having a skilled job. AR 66. The ALJ asked Dr. Tucker to take
into account any transferable skills a person with Symens's work history might possess and to
identify semiskilled jobs such a person could perform. AR 67. Dr. Tucker testified that Symens
could work as a retail sales clerk, a recreational facility attendant, an appointment clerk, and a
reviewer. AR68.
III.

The Disability Determination and the Five-Step Procedure

At the outset of his decision, the ALJ found that Symens met the insured status
requirements of the Social Security Act through December 31, 2011. AR 13,15. To receive

disability insurance benefits, a claimant must establish that she was insured under the Social
Security Act when she was disabled. Hinchev v. Shalala. 29 F.3d 428, 431 (8th Cir. 1994).

Thus, Symens needed to show that she was disabled on or before December 31,2011. Id. The
ALJ then applied the five-step sequential evaluation process mandated under 20 C.F.R.
§ 404.1520(a)(4) to determine whether Symens was disabled. Under this five-step analysis, an
ALJ is required to examine:

(1) whether the claimant is presently engaged in a
"substantial gainful activity;"

(2) whether the claimant has a severe impairment-one that
significantly limits the claimant's physical or mental ability
to perform basic work activities;

(3) whether the claimant has an impairment that meets or
equals a presumptively disabling impairment listed in the
regulations (if so, the claimant is disabled without regard to
age, education, and work experience);

(4) whether the claimant has the residual functional capacity
to perform his or her past relevant work; and

(5) if the claimant cannot perform the past work, the burden
shifts to the Commissioner to prove that there are other jobs

in the national economy that the claimant can perform.

28

Bakery. Apfel. 159 F.3d 1140,1143-44 (8th Cir. 1998) (footnote omitted). If the ALJ can make
a conclusive disability determination before step five, the applicable regulation requires the ALJ

to make that determination and not proceed to the next step. 20 C.F.R. § 404.1520(a)(4). If the
ALJ cannot make such a determination before step five, the ALJ must evaluate each step. Id.
Between steps three and four, the ALJ assesses the claimant's residual functional capacity (RFC).

Id
At step one, the ALJ determined that Symens had not engaged in substantial gainful
activity since January 10, 2009, her alleged onset date. AR 15. At step two, the ALJ found that
Symens had the following severe impairments: rheumatoid arthritis, Sjogren's syndrome,
degenerative disc disease, carpal tunnel syndrome, pain and fatigue syndrome, and depression.
AR 15. The ALJ concluded under step three that these impairments, either individually or in

combination, did not meet or medically equal one of the listed impairments. AR 15-18.
After reviewing the evidence, the ALJ then calculated Symen's RFC, determining that
Symens could perform light work with certain limitations.

AR 18-26.

In reaching this

conclusion, the ALJ evaluated the credibility of Symens's subj ective complaints. As part of this
evaluation, the ALJ noted Dr. Dame's opinion that Symens was disabled but gave the opinion
little weight; the ALJ stated that it was based largely on Symens's physical impairments and was
therefore outside of Dr. Dame's expertise.

AR 25. The ALJ gave great weight to the state

medical consultants' assessments because he found that they were consistent with the record as

a whole.

AR 26.

The ALJ ultimately concluded that Symen's medically determinable

impairments could reasonably be expected to cause her alleged symptoms, but that Symen's
statements regarding the intensity, persistence, and limiting effects of these symptoms were not

credible "to the extent they are inconsistent with [the RFC determination]." AR 25. He based
29

this conclusion on the objective medical evidence, the lack of physician-imposed restrictions,
Symens's reason for stopping work, Symens's description of her daily activities being

inconsistent with her complaints of disabling symptoms and limitations, and Symens's treatment
being generally successful in controlling her symptoms. AR 18-26.

The ALJ then proceeded to step four, finding that Symens could not perform her past
relevant work as a biologist, a graduate assistant, a fish culturist, or a retail store manager
because the mental demands of this work exceeded her RFC. AR 26-27. At step five, however,

the ALJ found that Symens could perform other jobs that exist in significant numbers in the
national economy, including retail sales clerk, recreational facility attendant, appointment clerk,
and reviewer. AR 27-28. The ALJ therefore found that Symens was not disabled under the
Social Security Act. AR 28.
IV.

Standard of Review

When considering an ALJ's denial of Social Security benefits, a district court must
determine whether the ALJ's decision "complies with the relevant legal requirements and is
supported by substantial evidence as a whole." Pate-Fires v. Astrue. 564 F.3d 935,942 (8th Cir.
2009) (quoting Ford v. Astrue. 518 F.3d 979,981 (8th Cir. 2008)). "Substantial evidence on the

record as a whole" entails "a more scrutinizing analysis" than "substantial evidence," which is

"merely such relevant evidence that a reasonable mind might accept as adequate to support a
conclusion." Burress v. Apfel. 141 F.3d 875, 878 (8th Cir. 1998) (citations and internal marks
omitted) (noting that it is not sufficient for the district court to simply say there exists substantial
evidence supporting the Commissioner). "The findings of the Commissioner of Social Security
as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. §

405(g).

"Substantial evidence is 'less than a preponderance, but is enough that a reasonable
30

mind would find it adequate to support the Commissioner's conclusion.'" Pate-Fires, 564 F.3d
at 942 (quoting Maresh v. Barnhart. 438 F.3d 897, 898 (8th Cir. 2006)). "Substantial evidence

means more than a mere scintilla." Slusser v. Astrue. 557 F.3d 923,925 (8th Cir. 2009) (citing

Neal v. Barnhart. 405 F.3d 685, 688 (8th Cir. 2005)). A district court "must consider both
evidence that supports and evidence that detracts from the Commissioner's decision." PateFires. 564 F.3d at 942 (quoting Nicola v. Astrue. 480 F.3d 885, 886 (8th Cir. 2007)).

Additionally, "[a]s long as substantial evidence in the record supports the Commissioner's
decision, [the court] may not reverse it because substantial evidence exists in the record that
would have supported a contrary outcome, or because [the court] would have decided the case

differently." McKinnev v. Apfel. 228 F.3d 860, 863 (8th Cir. 2000) (internal citation omitted).
A district court also reviews the Commissioner's decision to determine if appropriate
legal standards were applied. SeeRobersonv. Astrue.481 F.3dl020.1022 (8th Cir. 2007). The
district court reviews de novo the ALJ's ruling for any legal errors. Collins v. Astrue. 648 F.3d
869, 871 (8th Cir. 2011); Brueeeemann v. Barnhart. 348 F.3d 689, 692 (8th Cir. 2003).
V.

Discussion

Symens argues that the ALJ's decision is not supported by substantial evidence on the
record as a whole and free of legal error. She raises four issues on appeal:
I. At step three, was the ALJ required to consider whether Symen's

diagnoses of rheumatoid arthritis and chronic widespread pain equaled
Listing 14.09D (20 C.F.R. Part 404, Subpart P, Appendix 1)?
II. Was the ALJ's credibility finding made in accordance with legal

criteria and supported by logic and substantial evidence on the record
as a whole?

III. Did the ALJ assess residual functional capacity in accordance with
legal standards and based upon substantial evidence in the record as a
whole?

31

IV. Was the ALJ's Step Five finding made in compliance with legal
standards and supported by substantial evidence on the record as a
whole?
Doc. 16 at 44.
A.

Step Three

Symens argues that the ALJ erred at step three by failing to consider whether her

combined diagnoses of rheumatoid arthritis and chronic widespread pain were medically
equivalent to Listing 14.09D, the listing for inflammatory arthritis. The Commissioner disagrees,
contending that the evidence was insufficient to warrant analysis under Listing 14.09D and that
the ALJ's analysis of other listings establishes that the ALJ would have found that Symens was
unable to meet the criteria of 14.09D.

The Listing of Impairments describes impairments for each of the major body systems
that the Commissioner considers "to be severe enough to prevent an individual from doing any
gainful activity, regardless of his or her age, education, or work experience."

20 C.F.R.

§ 404.1525(a). At step three, the ALJ must determine whether a claimant's impairments, when

taken individually and in combination, meet or are medically equal to a listed impairment.
Shontos v. Barnhart. 328 F.3d 418, 424 (8th Cir. 2003). When a claimant has "a combination
of impairments, no one of which meets a listing . . . [the ALJ] will compare [the claimant's]
findings with those for closely analogous listed impairments." 20 C.F.R. § 404.1526(b)(3). To
be medically equivalent, a combination of impairments must be "at least equal in severity and

duration to the criteria in any listed impairment." Id. § 404.1526(a). "Medical equivalence must
be supported by medical findings; symptoms alone are insufficient." Finch v. Astrue. 547 F.3d
933, 937 (8th Cir. 2008). The claimant bears the burden of establishing that her impairments
equal a listing. Johnson v. Barnhart. 390 F.3d 1067, 1070 (8th Cir. 2004).
32

Symens argues first that the ALJ failed to include her diagnosis of chronic widespread

pain in his step two findings of severe impairments and that this tainted the ALJ's step three
analysis. Symens is mistaken; the ALJ found that one of Symens's severe impairments was "pain
and fatigue syndrome[.]" AR 15.

Symens argues next that the ALJ did not specifically discuss whether her rheumatoid

arthritis and chronic widespread pain were medically equivalent to Listing 14.09D. Although
this is correct, the ALJ's failure in this regard does not, standing alone, warrant reversal. As the
United States Court of Appeals for the Eighth Circuit has explained, "[t]here is no error when
an ALJ fails to explain why an impairment does not equal one of the listed impairments as long

as the overall conclusion is supported by the record." Boettcher v. Astrue. 652 F.3d 860, 863
(8th Cir. 2011); see also Karlix v. Barnhart. 457 F.3d 742,746 (8th Cir. 2006) (fact that ALJ did
not elaborate on conclusion that claimant did not meet or equal any listed impairment did not
require reversal "because the record supports [the ALJ's] overall conclusion"); Pepper ex rel.

Gardner v. Barnhart. 342 F.3d 853,855 (8th Cir. 2003) (concluding that ALJ's failure to address
a specific listing is not reversible error if record supports overall conclusion). Here, the ALJ
concluded that "[although the claimant has impairments considered severe . . . these

impairments were not attended, singly or in combination with any other impairment, with the
specific clinical signs and diagnostic findings required to meet or equal the requirements of any
listed impairment." AR 18. Thus, the question for this Court is whether the record supports the
ALJ's overall conclusion that Symens's impairments did not meet or equal a listed impairment.
Listing 14.09D requires:

Repeated manifestations of inflammatory arthritis, with at least two of
the constitutional symptoms or signs (severe fatigue, fever, malaise, or
involuntary weight loss) and one of the following at the marked level:
33

1. Limitation of activities of daily living;
2. Limitation in maintaining social functioning;

3. Limitation in completing tasks in a timely manner due to deficiencies
in concentration, persistence, or pace.

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 14.09D.

Symens argues that she had inflammatory

arthritis and chronic widespread pain accompanied by several constitutional symptoms, including
a low-grade fever, poor sleep, fatigue, and malaise. She asserts that these impairments and
symptoms resulted in marked limitations in her activities of daily living and her ability to

complete tasks in a timely manner. The Commissioner disagrees, contending that Symens is
unable to meet Listing 14.09D because her functional limitations do not rise to the marked level.
A "marked" limitation is "more than moderate but less than extreme." 20 C.F.R. Pt. 404, Subpt.
P, App. 1, § 14.0015. Further, a claimant "need not be totally precluded from performing an

activity to have a marked limitation, as long as the degree of limitation seriously interferes with
[the claimant's] ability to function independently, appropriately, and effectively." Id.

The record belies Symens's assertion that her rheumatoid arthritis, widespread chronic
pain, and constitutional symptoms resulted in marked functional limitations as required by

Listing 14.09D. As the ALJ noted, Symens reported to Dr. Dame that she cared for herself,
prepared her children for school, made meals for her family, and did household chores and book

work. AR 23, 25, 259. Symens told Dr. Ripperda that she did not have any limitations in her
bathing, grooming, or dressing activities, AR 24, 588, and told Dr. Halligan that although it was
uncomfortable, she was able to get out of bed and do her activities of daily living, AR 594.

Further, Symens indicated in her function report that she helped her children with their
homework, paid bills, and drove, AR 197,200, and testified at the hearing that she still enjoyed
reading and was able to go grocery shopping, AR 50, 57. Although Symens points to several

34

portions of the record in support of her argument that she had marked limitations in activities of
daily living, this evidence consists primarily of her own statements. Excerpts from Symens's
medical records reveal that at times her own physicians opined that her complaints seemed out
of proportion to her actual ailments. AR 180, 439, 543. This Court must defer to an ALJ's
credibility determinations if such determinations "are supported by good reasons and substantial

evidenced" Perks v. Astrue. 687 F.3d 1086,1091 (8th Cir. 2012) (quoting Pelkev v. Barnhart.
433 F.3d 575,578 (8th Cir. 2006)), and cannot substitute its opinion on credibility for that ofthe
ALJ who had the benefit of live testimony, Eichelbereer v. Barnhart. 390 F.3d 584,590 (8th Cir.
2004). The ALJ's conclusion that Symens's statements concerning the intensity, persistence, and

limiting effects of her symptoms were not credible to the extent they were inconsistent with the
RFC determination is supported by good reasons and substantial evidence. Because the ALJ
properly discredited Symens's statements concerning her limitations, these statements fail to
establish that her activities of daily living were marked.

Nor has Symens demonstrated that she suffered from a marked limitation completing

tasks in a timely manner because of deficiencies in concentration, persistence, or pace. When
considering whether Symens's depression equaled a listed impairment, the ALJ acknowledged

that Symens complained oftrouble with concentration, memory, completing tasks, and following

instructions, but concluded that Symens's depression caused only a moderate, rather than marked,
limitation on her concentration, persistence, and pace. AR 17. In support of this conclusion, the
ALJ noted that Symens's doctors frequently described her as "alert and/or oriented" and that Dr.
Dame found that Symens was "only mildly and periodically impaired in attention and
concentration, with no deficits of remote memory and moderate disturbance of recent recall."

AR 17,260. Although the ALJ cited these facts in the context of determining whether Symens
35

had a listed mental impairment, these facts undermine Symens's argument that her rheumatoid
arthritis and chronic widespread pain caused marked limitation in her ability to complete tasks
in a timely manner. Further, as with Symens's argument concerning her activities of daily living,
her argument that she had marked limitations completing tasks in a timely manner rests mainly
on statements that the ALJ properly discredited. There is substantial evidence in the record
supporting the ALJ's overall conclusion that Symens's impairments did not meet or medically
equal a listed impairment.
B.

Credibility Finding

Symens argues that the ALJ erred by improperly evaluating her statements concerning
her pain and limitations.

The Commissioner contends that the ALJ gave good reasons for

finding Symens less than credible and that Symens's attempt to invalidate these reasons is
unsuccessful.

When analyzing a claimant's subjective complaints of pain and limitation, an ALJ must
consider the objective medical evidence, the claimant's work history, and the "Polaski factors,"
which include: "(1) the claimant's daily activities; (2) the duration, frequency and intensity of

the pain; (3) precipitating and aggravating factors; (4) dosage, effectiveness and side effects of

medication; and (5) functional restrictions." Perkins v. Astrue. 648 F.3d 892,900 (8th Cir. 2011)
(internal quotation marks omitted) (quoting Polaski v. Heckler. 739 F.2d 1320, 1322 (8th Cir.
1984)).

An ALJ need not explicitly discuss each Polaski factor, but an ALJ who rejects

subjective complaints "must make an express credibility determination explaining the reasons
for discrediting the complaints." Wagner v. Astrue. 499 F.3d 842, 851 (8th Cir. 2007) (quoting
Singh v. Apfel. 222 F.3d 448, 452 (8th Cir. 2000)).

36

Although an ALJ may not discount a claimant's subjective complaints solely because they
are not fully supported by objective medical evidence, a claimant's complaints "may be
discounted based on inconsistencies in the record as a whole." Ellis v. Barnhart. 392 F.3d 988,

996 (8th Cir. 2005). A district court must "defer to the ALJ's determinations regarding the

credibility oftestimony, so long as they are supported by good reasons and substantial evidence."
Perks, 687 F.3d at 1091 (quoting Pelkev. 433 F.3d at 578). The Eighth Circuit has cautioned
judges against "substituting] [their] opinion for that of the ALJ, who is in a better position to
assess credibility." Eichelberger. 390 F.3d at 590.

As the Eighth Circuit has frequently stated, "there is no doubt that the claimant is
experiencing pain; the real issue is how severe that pain is." Gowell v. Apfel. 242 F.3d 793,796
(8th Cir. 2001) (quoting Woolf v. Shalala. 3 F.3d 1210, 1213 (8th Cir. 1993)). Here, the ALJ
listed the Polaski factors and engaged in a detailed review ofthe testimony and medical evidence

before ultimately concluding that Symens's statements concerning the intensity, persistence, and
severity of her symptoms were not credible to the extent they were inconsistent with the RFC
determination.

AR 18-26.

Symens takes a shotgun approach to the ALJ's credibility

determination, offering eighteen different arguments why it is erroneous. Doc. 16 at 49-63.
These arguments can be grouped into several loose categories of objections—to the ALJ's
treatment of third-party testimony and Dr. Dame's opinion, to the ALJ's analysis of the medical

evidence and inferences he drew therefrom, and to the ALJ's reliance on Symens's daily
activities, the absence of physician-imposed restrictions, and Symens's reasons for stopping
work.

As noted above, the ALJ found that Symens's description of her daily activities
undermined her credibility. AR 26. The Eighth Circuit has recognized that its cases "send
37

mixed signals about the significance of a claimant's daily activities in evaluating claims of
disabling pain[,]" Clevenger v. Soc. Sec. Admin.. 567 F.3d 971, 976 (8th Cir. 2009), and that,

for instance, the "ability to perform sporadic light activities does not mean that the claimant is
able to perform full time competitive work[,]" Ross v. Apfel. 218 F.3d 844,849 (8th Cir. 2000).
Nonetheless, an ALJ should consider a claimant's daily activities, and courts must evaluate an

ALJ's credibility determination—based in part on the claimant's daily activities—under the

substantial evidence standard. Moore v. Astrue. 572 F.3d 520 (8th Cir. 2009); Clevenger. 567
F.3d 971. The Eighth Circuit in Moore held that the ALJ gave good cause for discrediting the

claimant when, among other factors, the ALJ considered that the claimant's ability to do
housework, prepare meals, and eat out were inconsistent with her testimony about her pain.
Moore. 572 F.3d at 524. In Clevenger. the Eighth Circuit found that it was "not unreasonable"
for the ALJ to rely on the claimant's daily activities—which included doing laundry, washing

dishes, changing sheets, ironing, preparing meals, driving, attending church, and visiting
friends—to infer that the claimant's "assertion of disabling pain was not entirely credible."
Clevenger. 567 F.3d at 976.

Symens told Dr. Dame that she cared for herself, prepared her children for school, made

meals for her family, and did household chores and book work. AR 23, 25, 259. She stated in
her function report that she helped her children with their homework and prepared them for bed.
AR 197.

Symens told Dr. Ripperda that she did not have any limitations in her bathing,

grooming, or dressing activities, AR 24,588, and testified at the hearing that she could drive, AR
49-50, and was able to go grocery shopping, AR 50, 57. The ALJ found that Symens's decision

to travel to Arkansas to visit her sister suggested that Symens may have been overstating her
symptoms

and

limitations.

AR

20.

The
38

ALJ

concluded

that

Symens's

daily

activities—particularly her completion of household chores and caring for two young

children—were inconsistent with her complaints of disabling pain and limitations. AR 26. In
a medical report submitted after the ALJ issued his decision, Symens told Dr. Halligan that
although it was uncomfortable, she was able to get out of bed in the morning and "do her
activities of daily living[.]" AR 594. Symens's continuation of her nursing program further
supports the ALJ's credibility determination; although Symens alleged a disability onset date of

January 10,2009, she did not stop going to school until July 2009. AR 39,232,258. Although

Symens argues that the ALJ overstated the extent of her daily activities,35 the record indicates
that it was not unreasonable for the ALJ to rely on Symens's daily activities to infer that her
claims of disabling pain and limitations were not entirely credible.

The ALJ also noted that none of Symens's treating physicians had imposed any
restrictions on her.

AR 26.

Although he acknowledged Symens's testimony that her

"rheumatologist nurse" told her to keep her feet up, the ALJ gave this statement no weight as the
source of the statement was unknown and was not from an acceptable medical source. AR 26.

The ALJ concluded that the absence of physician-imposed restrictions was inconsistent with
Symens's allegations of totally disabling symptoms. AR 26. Relying on Pate-Fires. 564 F.3d at
943, Symens argues that there is no evidence that her physicians were asked about her functional

35In fairness, while Symens's acknowledged being able to engage in daily activities of life,

she made clear that she believed herself to have many limitations. For instance, in her disability
reports she stated that her pain and fatigue prevents her from concentrating, that her daily activities
are severely limited, and that she had many bad days where she doesn't get anything done. AR 169,
180, 197, 202. According to Dr. Dame's report, Symens stated that she was only able to engage in

activities of daily living for twenty to thirty minutes, that she required twenty minutes of rest
afterwards, and that she felt "intense pain in her hands and neck" after more than thirty minutes of
activity. AR 258-261. Symens also testified that she has four to five bad days a week where she lays
in her bed or recliner or sleeps between twelve to fifteen hours. AR 56.
39

limitations and that it was therefore inappropriate for the ALJ to consider the lack thereof.
Unlike in Pate-Fires, however, none of Symens's treating physicians opined that she had
significant functional limitations. In Pate-Fires, the claimant's treating psychologist opined that
the claimant's conditions and accompanying symptoms precluded her from working. The ALJ

rejected the treating psychologist's opinion in part because he found that it was inconsistent with
a consulting psychologist's opinion that was silent on the claimant's ability to work. Id. at 943.

The Eighth Circuit held that because the consulting psychologist had never been asked to assess
the claimant's ability to work, his silence on the issue could not constitute substantial evidence
that the claimant was not disabled. Id Indeed, a treating doctor's silence on the claimant's work
capacity does not by itselfconstitute substantial evidence supporting an ALJ's functional capacity
determination, especially when the doctor was neither asked to express an opinion on the matter
nor did so, and especially when that doctor did not discharge the claimant from treatment.
Hutsell v.Massanari. 259 F.3d 707,712 (8th Cir. 2001). However, in Young v. Apfel. 221 F.3d
1065, 1069 (8th Cir. 2000), the Eighth Circuit stated: "We find it significant that no physician

who examined Young submitted a medical conclusion that she is disabled and unable to perform
any type ofwork." At least two district courts have relied on Young to distinguish Pate-Fires and
Hutsell. For instance, in Howard v. Astrue. No. 4:10 CV 1389 JCH, 2011 WL 4007936, at *7

(E.D. Mo. Sept. 8, 2011), the court acknowledged Pate-Fires, but relied on Young for the
proposition that the "lack of functional restrictions imposed by any of the claimant's physicians

can be properly considered by the ALJ." Similarly, the district court in Agan v. Astrue. 922 F.
Supp. 2d 730, 750 (N.D. Iowa 2013), cited Young and found that the ALJ did not err in

considering the lack of any significant restrictions imposed by a treating physician as part of the

overall credibility assessment. The circumstances in Symens's case are closer to Young. Agan.
40

and Howard than to Pate-Fires or Hutsell. The Eighth Circuit has routinely held that the absence
of any "significant restrictions placed on [a claimant's] activities by his doctors" can undermine

the claimant's subjective complaints ofpain. Melton v.Apfel. 181 F.3d939,941 (8th Cir. 1999);
see also Moore. 572 F.3d at 525 ("A lack of functional restrictions is inconsistent with a
disability claim."); Henslev v. Barnhart. 352 F.3d 353, 357 (8th Cir. 2003) ("[N]o functional
restrictions were placed on [the claimant's] activities, a fact that we have previously noted is

inconsistent with a claim of disability."); Tennant v.Apfel. 224F.3d869,870-71 (8th Cir. 2000)
(per curiam) (concluding that ALJ properly relied on the absence ofphysician-ordered limitations

when discrediting claimant). Thus, the ALJ's reliance on the absence of any physician-imposed
restrictions was proper.

The ALJ found further that although Symens's persistence in seeking treatment would
normally weigh in her favor, the medical record revealed that treatment had been generally

successful in controlling her symptoms. AR 26. "Impairments that are controllable or amenable
to treatment do not support a finding of disability." Davidson v. Astrue. 578 F.3d 838, 846 (8th

Cir. 2009). In January 2009, Symens told Dr. Halligan that her joint pain had "essentially
resolved" on Prednisone. AR 456. Symens reported being eighty to ninety percent improved on
Humira in May 2009. AR 445,443. In a December 2009 physical RFC assessment, Dr. Terry

concluded that medication was controlling Symens's rheumatoid arthritis and had resolved her

synovitis. AR363. Dr. VanderWoude confirmed this conclusion in February 2010. AR506.
Symens reported a flare-up ofpain in April 2010 after switching medications, but stated that she

felt substantially better after beginning a course of Prednisone. AR 551. True, Symens's pain
sometimes worsened and her medications had side effects and required adjustment. Overall,

41

however, substantial evidence supports the ALJ's conclusion that Symens's pain was generally
controllable. Davidson. 578 F.3d at 846.

The ALJ also considered that Symens stopped working when her grocery store closed
rather than because of a disability. AR 26. Courts in the Eighth Circuit "have found it relevant
to credibility when a claimant leaves work for reasons other than her medical condition." Goff
v. Barnhart. 421 F.3d 785, 793 (8th Cir. 2005); see also Kellev v. Barnhart 372 F.3d 958, 961

(8th Cir. 2004) (finding that claimant leaving work for reasons unrelated to his medical condition
undermined his credibility). Symens stopped working when her store closed in May 2008, AR
232, but did not allege that she was disabled until January of 2009, AR 13. Nevertheless, the
ALJ's consideration of why Symens stopped her last employment was not improper. See Lewis
v- Colvin. No. 4:12CV247 TIA, 2013 WL 5298470, at *17 (E.D. Mo. Sept. 20, 2013) (relying
on Kelley when the claimant had stopped working on September 20,2008, because his employer
closed but did not allege that he was disabled until May 13,2009).

Lastly, the ALJ considered whether medical evidence supported Symens's subjective
complaints of pain. The ALJ recounted Symens's multiple joint examinations as well as her xrays and MRIs. AR 19-25. After her January 2009 appointment with Dr. Halligan, Symens
rarely showed any evidence of synovitis, and Drs. Halligan and Mumm routinely found her

strength, gait, and range of motion to be normal. AR 434, 444, 439, 448, 523, 535, 542, 558.

Dr. Ripperda's examinations were similar, showing no evidence of joint effusion and normal
strength, muscle tone, and range of motion in Symens's extremities. AR 588-89, 591. MRIs of
Symens's foot and hand showed no synovitis, AR 536, 540, 551, 553, and x-rays of her hands,
feet, and chest were unremarkable, AR 450.

42

Although these joint examinations, MRIs, and X-rays do little to substantiate Symens's
subjective complaints, she argues that the medical evidence as a whole is consistent with her

allegations of disabling pain. For instance, Symens points to Dr. Ripperda's statement in his
March 2011 treatment notes that she "certainly has medical reason to have [persistent arthralgic
symptoms] with her rheumatoid arthritis[.]" AR 589. Symens also takes issue with the ALJ's

conclusion that the normal muscle tone and lack of atrophy in her extremities was "generally
inconsistent with allegations of severely limited physical activity." AR 24. She contends that
there was no medical evidence in the record to support this conclusion, and that the ALJ may not

"play doctor." In Miller v. Sullivan. 953 F.2d 417, 422 (8th Cir. 1992), an ALJ discounted a
claimant's allegations of disabling pain in part because her doctors had not reported muscle
wasting, muscle atrophy, or decreased muscle strength.

The Eighth Circuit observed that

"although muscle deterioration may result from disuse, disabling pain does not always result in
muscle disuse." Id Thus, the ALJ could not discountthe claimant's allegations "simply because
she [did] not show an effect that other people suffering from disabling pain may show." Id. at
422-23.

The record is unclear concerning how much muscle deterioration someone with Symens's

alleged limitations would experience. Whether a lack of muscle tone or deterioration is or is not
significant depends at least in part on the unique nature of the claimed disability. Some district
court cases from within the Eighth Circuit have treated a lack of muscle atrophy and normal
muscle tone as undermining a claimant's credibility. See Hinton v. Astrue. 941 F. Supp. 2d
1054, 1077-78 (E.D. Mo. 2013) (affirming ALJ's credibility determination where the ALJ

discredited the claimant's subjective complaints in part because the claimant showed normal
muscle tone, bulk, and strength); Lindslevv. Astrue. No. 1:11-CV-92-DPM, 2012 WL 6042349,
43

at *2 (E.D. Ark. Dec. 4,2012) (affirming ALJ's credibility determination because "[c]ontrary to
[the claimant's] testimony that her pain was disabling, her doctors encouraged her to maintain
an active lifestyle and did not impose restrictions. She also did not display any of the observable

manifestations of severe pain, such as weight loss, muscle atrophy, muscle spasms, or adverse
neurological signs"); Peterson v. Astrue. No. CIV 08-4771 (RHK/JJK), 2009 WL 1657461, at
*2 (D. Minn. June 11, 2009) (affirming ALJ's credibility determination where ALJ discredited
claimant's complaints in part because her statement that she could only walk one block was

inconsistent with medical records showing "normal strength and no atrophy in the lower
extremities, signs associated with chronic disuse of the muscles"); O'Brien v. Astrue. No.

4:O5CV1559 RWS, 2007 WL 2226032, at * 16 (E.D. Mo. Aug. 1,2007) ("The ALJ's observation
about the absence of any reference in the medical records to a loss of muscle tone or to atrophy
is relevant [to the claimant's allegations of disabling pain]."). At least one other court has found
that normal strength and the absence ofmuscle atrophy do not undermine a claimant's credibility.
See Lapeirre-Gutt v. Astrue. 382 Fed. App'x 662, 665 (9th Cir. 2010) (mem.) ("[T]he ALJ noted

that [claimant's] lack of muscle atrophy was inconsistent with her allegations of inactivity, and
that her lack of radicular symptoms did not comport with testimony that she had trouble gripping
things. However, no medical evidence suggests that high inactivity levels necessarily lead to
muscle atrophy or that trouble gripping can stem only from radicular symptoms. Thus, these

findings are not based on substantial evidence."). Although Symens testified that her activities
were circumscribed, she also testified that she shopped, cared for herself and her children, and
did housework. These activities could have prevented any muscle deterioration. As mentioned
above, to some extent, these activities cast some doubt on some of Symens's statements about
the extent of her disability.

44

Symens also focuses on the ALJ's reference to Dr. Mumm's statement that he did "not

find much evidence to suggest disease activity of a rheumatoid arthritis as the cause for
[Symens's] arthralgias[,]" AR 23, and Dr. Halligan's statement that Symens's pain was "out of
proportion to what her examination would explain at this time[,]" AR 24. Symens argues that

these statements and other medical evidence, such as a lack of synovitis and a lack of other
objective findings, were actually consistent with her diagnosis of chronic pain syndrome. In the
notes from her July 2010 examination of Symens, Dr. Halligan stated that Symens's pain was out
ofproportion to the lack of obvious synovitis Symens showed. AR 543. Dr. Halligan explained
that the reason for this could be either subclinical synovitis or chronic pain syndrome. AR 543.

When an MRI of Symens's right hand showed no evidence of synovitis, Dr. Halligan concluded
that rheumatoid arthritis was not causing Symens's pain and diagnosed her with chronic
widespread pain. AR 536-37.

At bottom, some of the medical evidence is consistent with Symens's complaints, and
some of the medical evidence is inconsistent with Symens's complaints. But this does not mean

that the ALJ's credibility determination should be reversed. As the Eighth Circuit has explained,
"if it is possible to draw two inconsistent positions from the evidence and one of those positions
represents the ALJ's findings, we must affirm the ALJ's decision." Moore, 623 F.3d at 602. The

ALJ did not rely exclusively on the lack of supporting joint examinations, MRIs, and x-rays to
discredit Symens's complaints of pain. Rather, he gave several good reasons for discounting
Symens's credibility, including the lack of physician-imposed restrictions, Symens's reasons for
stopping work, Symens's daily activities, and a finding that treatment was generally successful

in controlling Symens's symptoms. Because substantial evidence supports these reasons, this
Court must defer to the ALJ's credibility determination. See McDade v. Astrue. 720 F.3d 994,
45

998 (8th Cir. 2013) ("Because the ALJ [is] in a better position to evaluate credibility, we defer
to his credibility determinations as long as they [are] supported by good reasons and substantial
evidence." (quoting Cox v. Barnhart. 471 F.3d 902, 907 (8th Cir. 2006))).

In the interest of completeness, this Court explains why Symens's remaining arguments
do not warrant a contrary result. Specifically, Symens contends that the ALJ erred by failing to
properly consider Dr. Dame's opinion about her disability and by not giving appropriate reasons

for rejecting the testimony of Curtis and Lee. AR 261. The ALJ specifically discussed Dr.
Dame's opinion but assigned it little weight, finding that it was largely based on Symens's

physical impairments and was therefore outside of a psychologist's expertise. AR 25. A review
of Dr. Dame's report supports this finding; despite being a psychologist and having seen Symens
once, he concluded that she was "seriously disabled by virtue of the medical diagnosis of
rheumatoid arthritis.

She is chiefly disabled by the residual pain and the side effects of the

medications used to treat this disorder." AR 261. A psychologist would neither be treating nor
an expert in rheumatoid arthritis or physical side effects from medication therefor. The ALJ's
decision to assign lesser weight to Dr. Dame's opinion on this basis was not erroneous. See
Wildman v. Astrue. 596 F.3d 959, 967 (8th Cir. 2010) (holding that ALJ properly discounted
consulting psychologists' opinions because the opinions were largely based on the consideration
of physical impairments, an area outside the psychologists' expertise).
Symens's argument concerning the testimony of Curtis and Lee fares no better. The

testimony of Curtis and Lee was consistent with Symens's testimony; they recounted how
Symens had described her symptoms to them and affirmed that Symens had certain limitations

and was getting worse. AR 58-63. Noting this consistency, the ALJ discredited the testimony

for the same reasons he discredited Symens's allegations. AR 20. When, as here, substantial
46

evidence supports the ALJ's determination that a claimant's allegations are not credible, the ALJ
may properly discredit cumulative testimony offered by other witnesses. Black v. Apfel. 143
F.3d 383, 387 (8th Cir. 1998). Accordingly, the ALJ did not err in this regard.
C.

Residual Functional Capacity

A claimant's RFC "is defined as the most a claimant can still do despite his or her
physical or mental limitations." Martise v. Astrue. 641 F.3d 909, 923 (8th Cir. 2011) (quoting
Leckenbv v. Astrue. 487 F.3d 626, 631 n.5 (8th Cir. 2007)). "Because a claimant's RFC is a

medical question, an ALJ's assessment of it must be supported by some medical evidence of the
claimant's ability to function in the workplace." Cox v. Astrue. 495 F.3d 614, 619 (8th Cir.
2007). "The ALJ determines a claimant's RFC based on all relevant evidence, including medical
records, observations of treating physicians and others, and the claimant's own descriptions of
his or her limitations." Eichelberger. 390 F.3d at 591.

Symens makes multiple arguments why the ALJ's determination of her RFC was
erroneous. Her first argument—that an inadequate credibility determination tainted her RFC—is

undermined by this Court's finding that substantial evidence supported the ALJ's credibility

determination. Furthermore, the ALJ did not simply ignore Symens's subjective complaints

when determining her RFC. Rather,.he acknowledged in the RFC that Symens "experiences pain
and discomfort from a variety of sources that would produce mild to moderate chronic pain and

discomfort, likely noticeable at all times

" AR 18. "Due to pain and some depression," the

ALJ stated, "the claimant has mild limitations with respect to activities of daily living; mild
restrictions with respect to social functioning; moderate limitations with respect to concentration,

47

persistence, or pace; and moderate limitations in the ability to carry out details and maintain
extended concentration." AR 19.

Symens next argues that her RFC was inadequate because the ALJ failed to incorporate

limitations resulting from her carpal tunnel syndrome, which he had found was severe at step
two. Dr. Pengilly assessed Symens as having bilateral carpal tunnel syndrome in August 2009,

after Symens showed a positive Phalen's sign on both sides with the right being worse than the
left and a positive Tinel's test on the right with a weakly positive Tinel's test on the left. AR 310.
In January 2010, Dr. Peterson diagnosed Symens as having right de Quervain's tenosynovitis.
AR 430. The ALJ incorporated these conditions into the RFC when he found that Symens could
frequently, but not constantly, use her right hand for gripping and handling. AR 18. Symens
argues that her recurrent complaints of wrist pain warrant additional limitations with respect to
her carpal tunnel syndrome. But an ALJ need not include subjective limitations in the RFC
when, as here, he has found them not credible. See Tellez v. Barnhart. 403 F.3d 953, 957 (8th
Cir. 2005) ("Tellez fails to recognize that the ALJ's determination regarding her RFC was

influenced by his determination that her allegations were 'less than fully credible,' and we give
the ALJ deference in that determination."). Further, the medical evidence does not support
Symens's contention that additional limitations are necessary. After being assessed with carpal

tunnel syndrome, Symens frequently exhibited normal strength in her upper extremities and a
normal range of motion in her wrists and hands. AR 430, 434, 439, 444, 448, 491, 535, 542,
558,588,589,591. She also had fine touch sensation in her upper extremities, AR 559,589, and
Dr. Halligan found that Symens's grip strength was "excellent" on two occasions, AR 439, 596.

By January 2010, Symen's Phalen's sign was negative. AR 559. Finally, none of Symens's
physicians ever imposed any functional limitations on her.
48

Symens also argues that the ALJ failed to incorporate limitations in the RFC from her
peripheral arterial disease when he determined that she could "stand and/or walk (with normal

breaks) for a total of about 6 hours in an 8-hour workday[.]" AR 18. Symens's mere diagnosis
of peripheral arterial disease does not mean that she experienced any significant limitations in
her ability to walk or stand or that any corresponding restrictions are warranted in her RFC,

however. Other than her complaints that she experienced pain when standing and walking,
Symens does not point to any evidence that her peripheral arterial disease resulted in functional
loss. Once again, the ALJ gave good reasons for finding Symens's statements concerning the

intensity, persistence, and limiting effects of her symptoms not credible to the extent that they
were inconsistent with the RFC determination. Further, substantial evidence supported the ALJ's

determination that she could stand or walk for a total of about six hours in an eight hour
workday. Not only did Dr. Terry and Dr. Vander Woude reach this conclusion, AR 357, 506,

but also Symens's physicians reported that she had an appropriate gait and normal strength,
muscle tone, and range of motion in her lower extremities. AR 434, 439, 444, 448, 523, 535,
542,558,591.

Symens argues next that her RFC is inadequate because the ALJ did not account for

"exacerbations of illness." Doc. 16 at 65. When determining whether a claimant has the RFC
to work, courts look to whether the claimant has "the ability to perform the requisite physical acts

day in and day out, in the sometimes competitive and stressful conditions in which real people
work in the real world." Forehand v. Barnhart. 364 F.3d 984, 988 (8th Cir. 2005) (citation
omitted). Symens contends that the ALJ "failed to reject, but simply disregarded, evidence that
[her] functioning was marked by flares and that she had bad days where she could do very

little[.]" Doc. 16 at 65. Symens does not explain which of her impairments would flare and
49

result in limitations in her ability to engage in sustained work. Instead, Symens cites to her
hearing testimony that she had four to five bad days a week, AR 55-56, a June 2009 appointment
with Dr. Pengilly when she complained of fatigue and showed a "little bit" of swelling in her
wrist and pain with flexion and extension, AR 314, a July 2009 appointment with Dr. Pengilly
when she still showed a "bit" of swelling in her wrist and "some pain," AR 313, a May 2010
appointment with P.A. Streff when she reported neck pain and stated that she had experienced

flares of pain over the past two weeks, AR 577, and a December 2010 appointment with Dr.
Halligan when she complained of problems sleeping because ofpain and stated that her pain was
worse in the morning but improved as the day progressed, AR 522. That Symens occasionally
reported flares in pain to her doctors and had some swelling early in the time period of her
alleged disability does not establish that her flares were so severe and frequent that the ALJ
should have incorporated corresponding limitations in her RFC. Rather, Symens's argument that
the ALJ should have incorporated such limitations rests chiefly on her testimony at the hearing.
Because the ALJ properly discredited Symens's subjective complaints, he was not required to
incorporate limitations based on such complaints. Wildman, 596 F.3d at 969.

Finally, Symens argues that reversal is warranted under Nevland v. Apfel. 204 F.3d 853
(8th Cir. 2000), because the ALJ relied solely on the physical RFC assessments by Dr. Terry and

Dr. Vander Woude when determining her RFC. In Nevland. the Eighth Circuit reversed and
remanded the ALJ's decision because there was "no medical evidence about how [the claimant's]
impairments affect his ability to function now." Id. at 858. Rather than seeking an opinion on

the claimant's RFC from a treating or examining physician, the "ALJ relied on the opinions of
non-treating, non-examining physicians who reviewed the reports of the treating physicians to

form an opinion of [the claimant's] RFC." Id "The opinions of doctors who have not examined
50

the claimant[,]" the Eighth Circuit explained, "ordinarily do not constitute substantial evidence
on the record as a whole." Id.

Unlike in Nevland and contrary to Symens's contention, the ALJ in this case did not base
Symens's RFC solely on the reports of non-examining, non-treating physicians. In addition to
considering the reports from Dr. Terry and Dr. Vander Woude, the ALJ engaged in an extensive
review of the medical evidence. This review—noting that there were no physician-imposed
restrictions, that Symens's conditions were generally controllable with medication, that Dr.
Halligan and Dr. Mumm routinely found that Symens's strength, gait, and range of motion were
normal, and that Dr. Ripperda found that Symens showed no evidence ofjoint effusion and had
normal strength and muscle tone with no muscle atrophy—not only supported the ALJ's
conclusion that Symens could engage in light work with some limitations but also was consistent
with the reports from Dr. Terry and Dr. Vander Woude. See Moore, 572 F.3d at 524 (finding
that evidence that claimant had normal gait, rotation of fists and fingers, and full 5/5 strength
both proximally and distally supported ALJ's RFC determination that claimant could engage in
light work); Flvnn v. Astrue. 513 F.3d 788, 793 (8th Cir. 2008) (concluding that substantial

evidence existed to support the ALJ's RFC determination when treating physicians found that
claimant had normal or full muscle strength and good mobility); Krogmeier v. Barnhart, 294
F.3d 1019,1024 (8th Cir. 2002) (noting that although the opinion of a consulting physician does

not usually constitute substantial evidence, substantial evidence supported the ALJ's decision that

the claimant could perform other substantial gainful activity in the national economy where, in
addition to considering a consulting physician's opinion, the ALJ considered the medical
evidence, statements of the claimant's treating physician, the claimant's description of his daily
activities, and the claimant's lack of motivation to return to work). The ALJ also properly
51

considered Symens's description of her daily activities in determining her RFC. Under these
circumstances, remand under Nevland is unnecessary. Krogmeier. 294 F.3d at 1024.
As indicated above, substantial evidence supported the ALJ's RFC determination. The
ALJ properly analyzed the medical and non-medical evidence in the record and recognized that
Symens has some limitations. Symens has not offered any arguments or evidence demonstrating
that additional limitations are warranted.
D.

Step Five Determination

Symens offers several reasons why the ALJ's finding that she could perform other work
in the national economy was not in accordance with legal standards and was unsupported by
substantial evidence. Symens argues first that the ALJ committed reversible error by failing to
acknowledge the shift of the burden to the Commissioner at step five of the sequential analysis.
Once a claimant proves that she is unable to perform her past relevant work, the burden shifts
to the Commissioner to prove that, notwithstanding the claimant's impairments, the claimant can

perform other jobs that exist in significant numbers in the national economy. Nevland. 204 F.3d
at 857; Roth v. Shalala. 45 F.3d 279,282 (8th Cir. 1995). An ALJ's failure to acknowledge this
burden shift to the Commissioner is reversible error "except in those cases in which the evidence
is so strongly against the claimant that 'the outcome is clear regardless of who bears the burden

ofproof.'" Roberts v. Apfel. 222 F.3d466.471 (8th Cir. 2000) (quoting Butler v. Sec'v of Health
& Human Servs.. 850 F.2d 425, 426 (8th Cir. 1988)): see also Pope v. Bowen. 886 F.2d 1038,
1040 (8th Cir. 1989) (" [W]e have frequently declared that the ALJ must expressly acknowledge

the shift in the burden of proof and if the ALJ does not do so, we will not assume that the ALJ

52

implicitly shifted the burden of proof."). Contrary to Symens's argument, the ALJ did expressly
acknowledge the burden shift. The ALJ's opinion states:

At the last step of the sequential evaluation process (20 CFR
404.1520(g)), the undersigned must determine whether the claimant is

able to do any other work considering her residual functional capacity,
age, education, and work experience. If the claimant is able to do other
work, she is not disabled. If the claimant is not able to do other work
and meets the duration requirement, she is disabled.

Although the
claimant generally continues to have the burden of proving disability at
this step, a limited burden of going forward with the evidence shifts to

the Social Security Administration. In order to support a finding that
an individual is not disabled at this step, the Social Security
Administration is responsible for providing evidence that demonstrates
that other work exists in significant numbers in the national economy

that the claimant can do, given the residual functional capacity, age,
education, and work experience (20 CFR 404.1512(g) and
404.1560(c)).

AR 15. Although the ALJ did not restate the burden shift when finding that Symens was able
to perform other work in the national economy, it was unnecessary for him to do so.

See

Dillehav v. Comm'r Soc. Sec. Admin.. No. 4:08CV00019 JLH, 2009 WL 57507, at *l-2 (E.D.

Ark. Jan. 8, 2009) (finding that ALJ acknowledged burden shift when ALJ gave substantially
similar statement concerning step five but did not restate the burden shift later in the opinion
when discussing the facts).

Symens also argues that the hypothetical to the vocational expert failed to include all of
her limitations, but this Court's previous discussion ofher RFC explains why this argument lacks

merit. See Vandenboom v. Barnhart. 421 F.3d 745, 750 (8th Cir. 2005) ("The hypothetical
question need only include those impairments and limitations found credible by the ALJ

").

Next, Symens contends that the ALJ erred by identifying her job as a retail store manager as past

relevant work because this j ob did not constitute substantial gainful activity. Even assuming that

53

Symens is correct that her job as a retail store manager did not constitute substantial gainful
activity, the ALJ did not err by considering it. See Baker v. Sec'v of Health & Human Servs..
955 F.2d 552, 554 n.3 (8th Cir. 1992) ("We disagree with the dissent's assertion that, under the

regulations, aj ob must have constituted substantial gainful activity to be considered past relevant
work."); see also Taylor v. Sullivan. 951 F.2d 878, 879-80 (8th Cir. 1991) (holding that Social
Security regulations permit consideration of "past work experience that fell short of substantial
gainful employment" to determine whether the claimant had transferable skills from prior work).
Finally, Symens argues that the ALJ erred in determining that she was capable of
performing the jobs identified by Dr. Tucker without identifying any transferable skills from her
past relevant work. At step five, the Commissioner has the burden of demonstrating that, given
a claimant's age, education, and work experience, there are a significant number of other jobs in
the national economy that the claimant can perform. Brock v. Astrue. 674 F.3d 1062,1064 (8th
Cir. 2012). The Commissioner may carry this burden by eliciting testimony from a vocational
expert or by using the medical-vocational guidelines. Pearsall v. Massanari, 274 F.3d 1211,
1219 (8th Cir. 2001).

"If an applicant's impairments are exertional, (affecting the ability to

perform physical labor), the Commissioner may carry this burden by referring to the medical-

vocational guidelines, or 'Grids,' which are fact-based generalizations about the availability of
jobs for people of varying ages, educational backgrounds, and previous work experience, with

differing degrees of exertional impairments." Id. (quoting Gravv. Apfel. 192 F.3d 799,802 (8th
Cir. 1999)). If the claimant has non-exertional impairments, however, then use of the medicalvocational guidelines is inappropriate, and testimony from a vocational expert is required. Id.

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Here, the ALJ relied on the testimony of vocational expert Dr. Tucker. Although the ALJ
asked Dr. Tucker to take into account transferable skills Symens possessed, neither the ALJ nor
Dr. Tucker specifically identified what these skills were. AR 67. Relying on Social Security

Rulings (SSR) 82-41, 83-11. and Macaraees v. Astrue. No. CIV-09-127Q-D. 2010 WL 3749468
(W.D. Ok. Aug. 23,2010), Symens argues that this was error. The court in Macarages held that
SSR 82-41 required the ALJ to identify the claimant's transferable skills when the ALJ

determined that the claimant could perform other skilled or semi-skilled work.

2010 WL

3749468, at * 1-3. Although the Ninth Circuit has reached a similar conclusion, see Bray v.

Comm'r of Soc. Sec. Admin.. 554 F.3d 1219, 1223-26 (9th Cir. 2009) (holding that specific
findings on transferable skills are required under SSR 82-41 even where the ALJ relies on a
vocational expert's testimony), this is not the law in the Eighth Circuit. In Tucker v. Barnhart.
130 Fed. App'x 67 (8th Cir. 2005) (per curiam) the Eighth Circuit held that an ALJ may rely on
vocational expert testimony to find that a claimant has transferable skills and that SSR 82-41 did
not require the ALJ or vocational expert to identify the claimant's transferable skills. Id. at 68
(citing Wilson v. Comm'r of Soc. Sec. 378 F.3d 541, 548-50 (6th Cir. 2004) (holding that SSR

82-41 only requires specific findings where the ALJ relies exclusively on the medical vocational
guidelines to reach a determination)).

Thus, the ALJ did not commit error by failing to

specifically identify Symens's transferable skills.
VI.

Conclusion

For the reasons stated above, it is hereby

ORDERED that the Commissioner's decision is affirmed and that Symens's motion, Doc.
15, is denied.

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Dated March 4 ,2014.
BY THE COURT:

ROBERTO A. LANGE
UNITED STATES DISTRICT JUDGE

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