ROBERT E. LARSEN, United States Magistrate Judge.
Plaintiff Paula Tate seeks review of the final decision of the Commissioner of Social Security denying plaintiff's application for disability benefits under Title XVI of the Social Security Act ("the Act"). Plaintiff argues that the ALJ erred in (1) discounting the opinions of Drs. Donald McGehee and Janice May; (2) assessing a residual functional capacity which is unsupported by the evidence, and (3) failing to consider the totality of the evidence in assessing plaintiff's credibility. I find that the substantial evidence in the record as a whole supports the ALJ's finding that plaintiff is not disabled. Therefore, plaintiff's motion for summary judgment will be denied and the decision of the Commissioner will be affirmed.
On January 18, 2008, plaintiff applied for disability benefits alleging that she had been disabled since December 1, 1999. Plaintiff's disability stems from type 2 diabetes,
Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for judicial review of a "final decision" of the Commissioner. The standard for judicial review by the federal district court is whether the decision of the Commissioner was supported by substantial evidence. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Mittlestedt v. Apfel, 204 F.3d 847, 850-51 (8th Cir.2000); Johnson v. Chater, 108 F.3d 178, 179 (8th Cir.1997); Andler v. Chater, 100 F.3d 1389, 1392 (8th Cir.1996). The determination of whether the Commissioner's decision is supported by substantial evidence requires review of the entire record, considering the evidence in support of and in opposition to the Commissioner's decision. Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951); Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir.1989). "The Court must also take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory." Wilcutts v. Apfel, 143 F.3d 1134, 1136 (8th Cir.1998) (citing Steadman v. Securities & Exchange Commission, 450 U.S. 91, 99, 101 S.Ct. 999, 67 L.Ed.2d 69 (1981)).
Substantial evidence means "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. at 401, 91 S.Ct. 1420; Jernigan v. Sullivan, 948 F.2d 1070, 1073 n. 5 (8th Cir.1991). However, the substantial evidence standard presupposes a zone of choice within which the decision makers can go either way, without interference by the courts. "[A]n administrative decision is not subject to reversal merely because substantial evidence would have supported an opposite decision." Id.; Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir.1988).
An individual claiming disability benefits has the burden of proving she is unable to return to past relevant work by reason of a medically-determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A). If the plaintiff establishes that she is unable to return to past relevant work because of the disability, the burden of persuasion shifts to the Commissioner to establish that there is some other type of substantial gainful activity in the national economy that the plaintiff can perform. Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir.2000); Brock v. Apfel, 118 F.Supp.2d 974 (W.D.Mo.2000).
The Social Security Administration has promulgated detailed regulations setting out a sequential evaluation process to determine whether a claimant is disabled. These regulations are codified at 20 C.F.R. §§ 404.1501, et seq. The five-step sequential
1. Is the claimant performing substantial gainful activity?
2. Does the claimant have a severe impairment or a combination of impairments which significantly limits her ability to do basic work activities?
3. Does the impairment meet or equal a listed impairment in Appendix 1?
4. Does the impairment prevent the claimant from doing past relevant work?
5. Does the impairment prevent the claimant from doing any other work?
The record consists of the testimony of plaintiff and vocational expert Cathy Hodgson, in addition to documentary evidence admitted at the hearing.
The record contains the following administrative reports:
Although plaintiff testified she has never worked a day in her life, the earnings record in the file shows that she earned $438.57 in 1978 (when she was 15), $221.24 in 1979 (when she was 16); $642.00 in 1980 (when she was 17), and $68.00 in 1995 (when she was 32) (Tr. at 125). In addition, plaintiff completed a Disability Report in which she reported having worked as a cashier clerk/stocker in 1995 for one night and as a sales clerk at a flea market off and on from 1978 through 1980 (Tr. at 133).
Plaintiff completed a Missouri Supplemental Questionnaire in which she indicated that her husband is disabled and she has an 18-year-old son receiving SSI benefits (Tr. at 155). She is able to feed and water her animals, pay bills, use a checkbook, complete a money order, count change, do laundry, do dishes, make beds, change sheets, vacuum, sweep, do her banking, and go to the post office (Tr. at 156-157). She shops for a half hour with the help of her disabled husband (Tr. at 157). In describing difficulties with sleeping, plaintiff wrote, "I just like to sleep." (Tr. at 158). When asked what takes most of her time during the day, plaintiff wrote, "Nothing! I do mostly nothing!" (Tr. at 158). She is able to watch a 30-minute television show and a one-hour movie (Tr. at 158). She reads newspapers and magazines (Tr. at 158). She can use a computer for 20 to 30 minutes (Tr. at 159). Her disabled husband drives her places (Tr. at 159).
On January 20, 2003, plaintiff began receiving treatment from Nadeem A. Kazi, M.D., on referral from Warren D. Kuipers, M.D. (Tr. at 416). Plaintiff complained of feeling tired and fatigued (Tr. at 416). Dr. Kazi diagnosed Hepatitis C
Plaintiff received treatment from April 7, 2004, through September 17, 2004, from Peter Myskiw, D.P.M. (Tr. at 528-32). On July 21, 2004, plaintiff underwent a surgical resection of the right inferior calcaneal exostosis, or heel spur, in her right foot (Tr. at 531).
On September 14, 2005, Dr. Kazi wrote a letter to Dr. Kuipers indicating plaintiff had a reoccurrence of Hepatitis C (Tr. at 375). Dr. Kazi noted that plaintiff was alert and oriented times three and in no apparent distress (Tr. at 375). Plaintiff denied fatigue, abdominal pain, nausea, or vomiting (Tr. at 375). Dr. Kazi noted that plaintiff's Hepatitis C had been treated successfully in the past (Tr. at 375).
On February 5, 2007, plaintiff was examined by Dr. Sarah Hulsey for followup for diabetes (Tr. at 310). Dr. Hulsey noted that plaintiff was last seen almost one year earlier and had not been back "since she restarted Meth and using daily — last usage was yesterday" (Tr. at 310). Dr. Hulsey noted that plaintiff was not taking insulin as prescribed (Tr. at 310). Plaintiff had a blood glucose level
On March 15, 2007, plaintiff saw Dr. Hulsey for a check on her diabetes (Tr. at 309). Plaintiff was doing better with blood sugars in the 200-300s range. Plaintiff was still on methamphetamine, lost her bed at Horizon, and missed her gynecologist appointment, but reported that she was otherwise compliant with diet and medication.
An ultrasound of her pelvis on March 28, 2007, revealed an enlarged fibroid uterus and a simple right ovarian cyst (Tr. at 319).
On July 28, 2007, plaintiff was examined in the emergency room at Casa Grande Regional Medical Center ("Casa Grande") for complaints of back pain — gradual onset and lasting two days (Tr. at 190-192). Plaintiff's functional limitations were: unable to bend, unable to sit up, unable to walk, and unable to do activities of daily living. Her blood sugar was 139. X-rays of her lumbar spine were normal. She
On August 2, 2007, plaintiff returned to the emergency room at Casa Grande and reported pain in her back after trying to help push a car ten days previously (Tr. at 211-239). Plaintiff had a 10 cm hematoma of the left lumbar area, and blood sugar levels in the 700s with slight acidosis.
On August 11, 2007, plaintiff was admitted to Casa Grande with a complaint of a large warm lump on the mid back — unknown cause or source (Tr. at 256). The lump was getting larger and plaintiff reported the pain was increasing. An echocardiogram performed on the same day revealed moderate concentric left ventricular hypertrophy
On August 21, 2007, plaintiff was admitted to Casa Grande for subacute rehabilitation for methicillin-susceptible staphylococcus aureus
On October 12, 2007, plaintiff was examined by Jamshid Mirzael, M.D., for a diabetes check (Tr. at 308). Plaintiff complained of left hip pain and right shoulder pain. Plaintiff rated her pain as a two on a scale of one to ten. She denied alcohol use. Dr. Mirzael diagnosed plaintiff with diabetes under poor control and left hip and shoulder pain. Plaintiff was given a prescription for Naproxen, a non-steroidal anti-inflammatory.
Plaintiff moved to Missouri from Arizona in late 2007. On January 18, 2008, she applied for disability benefits.
On January 25, 2008, plaintiff underwent a psychiatric consultative examination for the Wright County Family Support Division (Tr. at 427). The examination was administered by Janice May, Psy.D. (Tr. at 427-33). Dr. May noted that the information was by self-report from plaintiff and that it was important to note that the assessment represented only a sample of plaintiff's current psychological functioning (Tr. at 429). However, plaintiff appeared to be a reliable historian and so the results appeared to be valid (Tr. at 429).
Regarding plaintiff's substance abuse history Dr. May wrote:
(Tr. at 430).
Plaintiff told Dr. May that she was not working because she had no work history, she had recently moved to Missouri, and she was having difficulty meeting her basic needs. Dr. May noted that plaintiff was not currently attending individual therapy or substance abuse treatment and was not on psychotropic medications for mental health reasons (Tr. at 431). Plaintiff reported her current symptoms included depressed mood, appetite disturbance, low energy, mood swings, anxiety, hopelessness, and worthlessness. Dr. May performed a mental status examination and found plaintiff to have a depressed mood
Dr. May assessed plaintiff with a GAF score of 49
Ten days later, on February 4, 2008, Dr. May completed a disability certification for the Missouri Department of Social Services {}(Tr. at 435-436). Dr. May noted that plaintiff's primary diagnosis was adjustment disorder with depressed mood and amphetamine dependence. Dr. May found that plaintiff had a mental and/or physical disability preventing her from engaging in employment or gainful activity that was expected to last eight to twelve months (Tr. at 436). There is no explanation as to why the expected length of incapacity was different from that she listed ten days earlier other than that this was a form with durations to choose from, none of which matched her diagnosis from ten days earlier (Tr. at 436).
On February 6, 2008, David G. Paff, M.D., performed a physical consultative examination (Tr. at 336-351). Dr. Paff noted that plaintiff was morbidly obese, but that she could stand and walk without difficulty (Tr. at 337). Dr. Paff noted that plaintiff's blood glucose was 169 and hemoglobin A1C
In a letter to plaintiff dated February 19, 2008, Dr. Paff wrote that "... you were noted to have hypertension, poorly controlled diabetes, multiple joint pains, hepatitis C with abnormal liver function testing, enlargement of your heart, and mild anemia. You should see your personal physician concerning these findings as soon as possible." (Tr. at 338).
On March 8, 2008, Charles Bowles, Ph. D., reviewed the evidence of record, and completed a psychiatric review technique (Tr. at 352-362). Dr. Bowles noted plaintiff's history of noncompliance and stated that plaintiff's allegations of mental limitations were not credible (Tr. at 362). Dr. Bowles opined that plaintiff's mental impairments were non-severe (Tr. at 352, 362).
In April 2, 2008, plaintiff began receiving treatment from Misty Martin, PA-C, at the Family Walk-in Clinic ("Family Walk-in") for uncontrolled insulin dependent diabetes and an ulcerated back lesion (Tr. at 571). On April 7, 2008, plaintiff saw Ms. Martin who examined plaintiff and found that she had a normal cardiac exam, she had normal strength in her upper and lower extremities, she had full range of motion and no edema (Tr. at 569). Miss Martin encouraged plaintiff to stop smoking. She diagnosed plaintiff with diabetes, hypertension, osteoarthritis (based on plaintiff's report that she had arthritis in her hands and hips), ulcer of the back, and diabetic peripheral neuropathy (again, based on plaintiff's report that she suffered from that condition) (Tr. at 569).
On April 17, 2008, plaintiff's back ulcer was much improved and she was being referred to a plastic surgeon for her back ulcer (Tr. at 566). Plaintiff had elevated liver function tests and was diagnosed with hypocalcemia
On September 2, 2008, plaintiff had been out of medications for one to two weeks
On December 19, 2008, Ms. Martin completed a form for the Missouri Department of Social Services (Tr. at 546-547). Ms. Martin's primary diagnosis was Hepatitis C, and the secondary diagnosis was insulin dependent diabetes (Tr. at 547). Ms. Martin declined to rate plaintiff's incapacity and instead indicated that plaintiff should be referred to a Hepatitis C clinic (Tr. at 547).
On December 31, 2008, Ms. Martin noted that plaintiff did not keep her appointment at the Hepatitis C clinic (Tr. at 545). Plaintiff complained of right sided abdominal pain two nights earlier (Tr. at 545). Ms. Martin diagnosed plaintiff with hypertension, insulin dependent diabetes, and Hepatitis C (Tr. at 545).
From January 14, 2009, through April 27, 2009, plaintiff, who was incarcerated at the Chillicothe Correctional Center, continued to receive treatment for her mental health, Hepatitis C, diabetes, and back pain (Tr. at 438-523). Initially, plaintiff received counseling as it was thought she might be a suicide risk, but it was concluded that she did not currently appear to be a high risk for suicide (Tr. at 438).
On February 26, 2009, plaintiff refused medication and the assessment included "noncompliance related to medical maintenance, and non-compliance related to mental health maintenance" (Tr. at 479).
On April 12, 2009, the assessment again included "non-compliance related to medical maintenance, and non-compliance related to mental health maintenance" (Tr. at 514).
On May 27, 2009, Donald McGehee, Ed. D., performed a psychiatric consultative examination (Tr. at 419-421). Plaintiff told Dr. McGehee that she used IV methamphetamine "and most other kinds of drugs" between 1980 and 1997. "She was arrested on drug related charges at least twelve times. She spent one year in jail and four and a half years in prison."
Plaintiff reported experiencing insomnia, headaches, nausea, cold sweats, undue perspiration, clammy hands, and palpitations. "The intensity of these symptoms appears to be experienced by her as being quite severe and disabling." Dr. McGehee noted that plaintiff appeared to have a severely depressed mood. However, her affective responses were congruent and appropriate, and her speech was clear logical and coherent. There was no evidence of loose or bizarre thought associations. "Also noted were circumstantiality, blocking, derailments, and obsessions." Dr. McGehee administered a Millon Clinical Multiaxial Inventory (MCMI-III) test. Plaintiff did not meet the criteria for a personality disorder. Her clinical profile was significant for anxiety, "but otherwise her test results are benign." The test revealed that plaintiff tended to have a variety of somatic complaints associated with physiological overarousal. Dr. McGehee noted that plaintiff had never held a job or worked for a salary. Dr. McGehee diagnosed a generalized anxiety disorder, and assessed a GAF score of 60.
On June 4, 2009, Dr. McGehee completed a disability certification from the Missouri Department of Social Services for plaintiff stating that plaintiff had a disability that precluded her from engaging in employment or gainful activity, the duration of which was expected to last 6 to 12
On July 6, 2009, Ms. Martin saw plaintiff (Tr. at 542). Plaintiff reported that she was recently out of prison and had run out of all of her medications. Ms. Martin observed slight ankle edema.
On July 9, 2009, Ms. Martin noted plaintiff's blood glucose levels as 321 on Tuesday, 167 on Wednesday, and 284 on Thursday, and increased plaintiff's dosage of Lantus (Tr. at 539). On July 13, 2009, the blood glucose levels were reported as ranging from 177 to 237 (Tr. at 538).
On July 18, 2009, plaintiff telephoned Ms. Martin and indicated that her fasting sugars were ranging from 168 to 222 over the past three days (Tr. at 537). Ms. Martin again increased plaintiff's dosage of Lantus. (Tr. at 537).
On July 29, 2009, Dr. Donald McGehee completed a medical source statement-mental (Tr. at 424-426). Dr. McGehee found that plaintiff was moderately limited in the following:
He found that plaintiff was markedly limited in the following:
(Tr. at 425-426).
During the October 19, 2009, hearing, plaintiff testified; and Cathy Hodgson, a vocational expert, testified at the request of the AIJ.
At the time of the hearing, plaintiff lived with her husband (Tr. at 30). Her son was in prison at the time and she expected him to live with her once he gets out (Tr. at 30). Plaintiff has never worked (Tr. at 30). Plaintiff is supported by her husband who is disabled (Tr. at 31).
Plaintiff pled guilty for receiving stolen property even though she testified that she was not guilty (Tr. at 48). She was accused of taking a computer and a television set (Tr. at 49). Her husband actually stole it (Tr. at 49). Plaintiff served 4 ½ months in jail (Tr. at 49).
Plaintiff is 5'2" tall and weighs 247 pounds (Tr. at 38). Plaintiff gained about 70 pounds after she moved to Missouri from Arizona almost two years ago because after her husband went to prison, food became her best friend (Tr. at 38, 39). Plaintiff watches her diet by eating lots of fruits and vegetables (Tr. at 38). She has been doing that for a long time (Tr. at 38). She does not believe she is eating more than she is allowed to on her diabetic diet (Tr. at 39). Plaintiff checks her blood sugar from six to ten times a day (Tr. at 40). Her blood sugar usually is around 200, but the night before the hearing it was 468 (Tr. at 40). Usually when her blood sugar is high, she cannot tell (Tr. at 40). She can only tell when her blood sugar gets low (Tr. at 40). She gets cold sweats and shakes (Tr. at 40). Plaintiff then added as an afterthought that when her blood sugar gets high, her vision is blurry (Tr. at 40).
Plaintiff suffers from severe depression; however, she is not being treated for it because she has other things to take care of first (Tr. at 33-34). Plaintiff does not like to go outside because she does not want to see people, although she gets along well with people (Tr. at 43-44). She feels like people are watching her or judging her (Tr. at 44). When asked if she has any difficulty, due to pain or anxiety, paying attention to things or concentrating on something she is doing, she said she does not (Tr. at 44).
Plaintiff cannot sit or stand for long periods of time, meaning an hour or more (Tr. at 34). She alternates sitting and standing, she lies down, she moves around, she walks back and forth, and she repositions herself (Tr. at 34). It hurts to stand and walk due to neuropathy (Tr. at 34). With switching positions she could probably stand for two to three hours total each workday (Tr. at 35). She gets short of breath very easily due to her heart (Tr. at 34). Plaintiff notices that she gets short of breath when she talks too fast (Tr. at 41). She keeps five bottles of nitroglycerin pills around her house (Tr. at 41). They help when she experiences chest pain, although they give her a headache (Tr. at 41). After her chest pain goes away, she typically sits in a chair for an hour or two (Tr. at 42). Every day she experiences the feeling of a heavy chest (Tr. at 41). It happens randomly throughout the day and is not caused by anything she can identify (Tr. at 41).
Plaintiff has Hepatitis C and has been on one form of treatment that can only be done one time (Tr. at 42). She has a huge liver and she has pain around that area (Tr. at 42). She has water in her liver and has to take water pills (Tr. at 42). Due to her liver pain, plaintiff does not eat large meals and she pushes on her liver a lot (Tr. at 42-43).
Plaintiff has a five-inch hole in her back (Tr. at 36). She does not know what caused it, but she had a huge abscess next to her spine (Tr. at 37). She was supposed to have a skin graft after the surgery to remove the abscess but the plastic surgeon would not do it because her liver enzymes were too high (Tr. at 37).
Plaintiff is unable to open jars with her dominant hand — her last two fingers swell and she is unable to wear her rings anymore
When plaintiff was in the hospital for her back, she went blind in her left eye, but her vision came back (Tr. at 51). That was caused by her diabetes (Tr. at 51). She now can see up close but not small print (Tr. at 51). No one has ever suggested that she needs glasses (Tr. at 51). She had her vision tested; she was able to see far away; but she has never told anyone her vision bothers her because, "There's so many things on my list right now that that wasn't the one at the top of my list when I got out of prison." (Tr. at 51). She does not keep a written list of her problems — she keeps the list in her head (Tr. at 51).
Plaintiff's hips hurt when she walks and lies on her side (Tr. at 52). "I don't know. I just put it to my arthritis." (Tr. at 52). Her shoulder used to hurt because she was pushed into a bed by a nurse at the hospital but her shoulder is OK now — it has not been hurting lately (Tr. at 52).
During the day, plaintiff gets dressed, brushes her teeth, makes breakfast, sits down for a while, makes the bed, lies on the couch or walks outside, sits on the porch, does some dishes (Tr. at 35). Plaintiff is normally up for about two hours before she feels the need to lie down (Tr. at 36). She lies down for about a half an hour (Tr. at 36). Plaintiff is able to sweep and do dishes (Tr. at 45). When she swept last, however, she had to sit down because she was out of breath (Tr. at 45). Her husband cooks, although she testified that he is disabled (Tr. at 45). Plaintiff has never had a driver's license
Plaintiff said that she ran out of her medication one time (Tr. at 49). When she was asked when that was, she changed her testimony: "No. I usually make sure I always have medication." (Tr. at 49). The ALJ then asked her which it was — had she ever run out or not (Tr. at 49). Plaintiff said she did run out one time a long time
Plaintiff testified that she used to smoke quite a bit, but when she got out of prison she cut down and now smokes about four cigarettes a day (Tr. at 50). The ALJ noted that plaintiff's records indicate that she needs to attend Alcoholics Anonymous and Narcotics Anonymous (Tr. at 250). Plaintiff said, "I still go to AA to this day only because we don't, Mountain Grove doesn't have an AA, but I have been going to NA since '97." (Tr. at 50). Plaintiff said her sobriety date for drugs was July 16, 2007 (Tr. at 52). Her sobriety date for alcohol was December 14, 2008 (Tr. at 52-53).
In 2007 plaintiff went to the Casa Grande Regional Medical Center for lower back pain after she was pushing a stock car up into a trailer (Tr. at 53). She testified that she had not been using her back however — she was pushing with her hands and her butt (Tr. at 53). A day or two later she woke up and could not walk (Tr. at 53). Plaintiff was loading the car with her husband and son, one of whom was the race car driver and "won all the time." (Tr. at 54).
Vocational expert Cathy Hodgson testified at the request of the Administrative Law Judge. The first hypothetical involved a person who could perform unskilled light or sedentary work; could stand or walk for 30 minutes at a time; could sit for 45 minutes at a time; needs to shift in place at will while seated but can remain on task; cannot push or pull levers with her legs; may occasionally bend, twist, turn, stoop, squat; cannot ever crawl or kneel; can frequently climb stairs; cannot power grip with her dominant hand; can frequently handle, finger or feel; cannot use air or vibrating tools or motor vehicles; cannot work around unprotected heights or moving machinery; cannot work in temperature extremes of cold or heat or humidity; and cannot read type smaller than newspaper print (Tr. at 56-58). The person would have a mild restriction in working around supervisors, coworkers and the public and in adapting to work situations with changes in the workplace (Tr. at 58). The vocational expert testified that such a person could work as a general assembler, with 140,000 in the national economy and 4,000 in the region; a table worker, with 32,000 in the nation and 650 in the region; or an administrative support worker with 120,000 in the nation and 2,300 in the region, and these jobs allow for changing positions from standing to walking every 30 minutes and sitting every 45 minutes (Tr. at 58-59).
The next hypothetical was the same as the first except adopting the residual functional capacity assessment by Dr. McGehee (Tr. at 425-426) who found that plaintiff would have a marked limitation in her ability to understand and remember detailed instructions; carry out detailed instructions; maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances; complete a normal workday and workweek without interruption from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of
The third hypothetical was the same as the first except the person would need to rest every two hours for 30 minutes at a time by lying down, sitting down, reclining, or otherwise being away from the work station (Tr. at 60). The vocational expert testified that such a person could not work because customary breaks in the morning and afternoon are 10 to 15 minutes long, not 30 minutes (Tr. at 60).
The vocational expert testified that things which would be gripped in an unskilled job are "so small that power gripping would not be required." (Tr. at 61). Unskilled work generally does not require a lot of reading; however, it requires the ability to put together small parts which are larger than newspaper print (Tr. at 61). The form completed by Dr. McGehee states that plaintiff is markedly limited in her ability to perform activities within a schedule, maintain regular attendance, be punctual within customary tolerances, complete a normal workday and workweek without interruption from psychologically based symptoms, perform at a consistent pace without an unreasonable number and length of rest periods (Tr. at 425-426). All of those things are under a category called "Sustained Concentration and Persistence" (Tr. at 425). When Dr. McGehee completed this form, he circled the word "sustained" but did not explain why (Tr. at 425). The vocational expert interpreted the doctor in saying plaintiff was markedly limited after having circled "sustained," as meaning that plaintiff could not, for an eight-hour period of time, maintain attention and concentration; however, she does not know for sure what he meant (Tr. at 63-64). The form also includes a category indicating that the number and length of rest periods are unreasonable which would preclude all unskilled work even if the limitation were only moderate (Tr. at 65). The only way that category would make sense is if the person had "no" limitation (Tr. at 65). Dr. McGehee's form also includes at the bottom a section which says, "Based on the following factors:" and five factors are listed; however, he put slash marks next to two of them: medical history and clinical findings (Tr. at 426). The vocational expert does not know what the slash marks mean as there are no objective factors listed on the form (Tr. at 66).
Administrative Law Judge James Gillet entered his opinion on November 20, 2009 (Tr. at 12-22).
Step one. Plaintiff has not engaged in substantial gainful activity since her alleged onset date (Tr. at 14).
Step two. Plaintiff suffers from the following severe impairments in combination: adjustment disorder with depressed mood, amphetamine dependence, alcoholism, morbid obesity, hypertension, diabetes, mild anemia, hyperglycemia, Hepatitis C with Cirrhosis of the liver, generalized anxiety disorder, lumbar abscess, anemia, xerosis (abnormal dryness) of skin, mild cardiomegaly, poor eye sight, status post staph infection, status post right inferior caolaneal exostosis (heel spur removal), left shoulder pain, and left hip pain (Tr. at 14).
Step three. Plaintiff's impairments do not meet or equal a listed impairment (Tr. at 14).
Step five. Plaintiff can perform the jobs of general assembler, table worker, or administrative support worker, all available in significant numbers (Tr. at 22).
Plaintiff argues that the ALJ erred in finding that plaintiff's testimony was not credible. Plaintiff points out that even though she is able to do things around the house, she testified that she must take rest periods, that she had ongoing uncontrolled diabetes despite treatment and medication, and the examining doctors found plaintiff disabled (for up to a year at most).
The credibility of a plaintiff's subjective testimony is primarily for the Commissioner to decide, not the courts. Rautio v. Bowen, 862 F.2d 176, 178 (8th Cir.1988); Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir. 1987). If there are inconsistencies in the record as a whole, the ALJ may discount subjective complaints. Gray v. Apfel, 192 F.3d 799, 803 (8th Cir. 1999); McClees v. Shalala, 2 F.3d 301, 303 (8th Cir.1993). The ALJ, however, must make express credibility determinations and set forth the inconsistencies which led to his or her conclusions. Hall v. Chater, 62 F.3d 220, 223 (8th Cir.1995); Robinson v. Sullivan, 956 F.2d 836, 839 (8th Cir. 1992). If an ALJ explicitly discredits testimony and gives legally sufficient reasons for doing so, the court will defer to the ALJ's judgment unless it is not supported by substantial evidence on the record as a whole. Robinson v. Sullivan, 956 F.2d at 841.
In this case, I find that the ALJ's decision to discredit plaintiff's subjective complaints is supported by substantial evidence. Subjective complaints may not be evaluated solely on the basis of objective medical evidence or personal observations by the ALJ. In determining credibility, consideration must be given to all relevant factors, including plaintiff's prior work record and observations by third parties and treating and examining physicians relating to such matters as plaintiff's daily activities; the duration, frequency, and intensity of the symptoms; precipitating and aggravating factors; dosage, effectiveness, and side effects of medication; and functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). Social Security Ruling 96-7p encompasses the same factors as those enumerated in the Polaski opinion, and additionally states that the following factors should be considered: Treatment, other than medication, the individual receives or has received for relief of pain or other symptoms; and any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board).
(Tr. at 18-19).
Plaintiff has never worked. She stated that she chose to stay home and raise her family. The fact that plaintiff has never been motivated to work outside the home suggests that she is not working now for the same reason. Plaintiff's husband is disabled and has disability income. Her son is disabled and has disability income. It is possible plaintiff is exaggerating her impairments in order to increase her family's income by putting herself in the same position as her other family members. (In addition, when a claimant testifies before an administrative law judge that she can essentially do nothing and that everything is done by members of the family who have previously been found disabled, it does not suggest that the claimant is being entirely honest.)
The Eighth Circuit has noted that "[a] lack of work history may indicate a lack of motivation to work rather than a lack of ability." Pearsall v. Massanari, 274 F.3d 1211,
Plaintiff told doctors that she tries her best to take care of the house and keep up on laundry, cooking and basic needs. She testified that she and her husband pushed a race car onto a trailer — but that she did not use her back, she used her hands and her butt. It appeared that plaintiff attempted to minimize her ability to carry out such a physical activity despite complaining of disabling symptoms. If plaintiff were as functionally impaired as she alleges, she would not have even attempted to push a car. "Allegations of pain may be discredited by evidence of daily activities inconsistent with such allegations." Davis v. Apfel, 239 F.3d 962, 967 (8th Cir.2001).
Plaintiff has never been on medication for pain besides a non-steroidal anti-inflammatory. She has never been on medication for depression or anxiety or any other mental health condition. She has had Hepatitis C; however, it has not manifested itself with any physical limitations. She has diabetes which is for the most part uncontrolled. However, plaintiff testified that despite having gained 70 pounds in less than two years and being categorized as morbidly obese, she does not believe she eats any more than her diabetic diet allows. This certainly indicates that although plaintiff may believe she is being compliant, she is not. The records also indicate periods when plaintiff ran out of insulin, when she was hospitalized for diabetic ketoacidosis which is caused by failure to eat and failure to take insulin, both things that she admitted at the hospital she had done in the preceding week. The record establishes that plaintiff's pain and her mental condition are not bad enough to require any treatment or any medication, and that her uncontrolled diabetes is at least in part due to noncompliance with treatment. A failure to follow a recommended course of treatment weights against a claimant's credibility. Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir. 2005); Holley v. Massanari, 253 F.3d 1088, 1092 (8th Cir.2001).
Plaintiff complained of back pain after pushing a car onto a trailer. She was hospitalized for complications from diabetes after she failed to eat or use insulin for a week. Plaintiff complains of vision problems but she has never been told she needs glasses and has never sought any eye exam to see if glasses would help her see. Plaintiff testified that when her blood sugar is high, she cannot tell. She only has symptoms when her blood sugar is low — and according to plaintiff's medical records, her blood sugar is rarely if ever low (it was never observed to be low at any doctor's office). Any difficulties due to depression are aggravated by plaintiff's failure to seek any treatment for that conditions-and her reason is that she has too many other things to take care of first. However, that is not plausible since plaintiff regularly sees a doctor for diabetes management and that doctor could also treat depression. Although plaintiff testified about hip pain that causes her difficulties with sitting, standing and walking, she has never been prescribed any kind of pain medication other than a non-steroidal antiinflammatory. Plaintiff testified that she has heart problems which cause her to be out of breath and that she takes nitroglycerine and keeps five bottles of that medication around her house. However, the records show that she has only been prescribed nitroglycerine one time (in July 2009) by a physicians assistant who had
Plaintiff has been prescribed a non-steroidal anti-inflammatory for her pain. She has never been prescribed any medication for mental impairments. The records indicate that plaintiff was not compliant with her diabetes treatment. Her treatment for Hepatitis C was successful, and she has never suffered any limitations due to that disease. Although she testified to side effects, she did not report these to her treating physicians.
No doctor has ever placed plaintiff on functional restrictions due to any of her impairments.
Plaintiff's reports to her doctors have not been consistent. For example, she told one doctor that she had never been in prison and had never been arrested for drugs but told another doctor that she had been arrested for drugs at least a dozen times and had spent 4 ½ years in prison. Her complaints of disabling conditions are not consistent with her medical records. For example, she believes she cannot work due to being depressed, but she has never complained of depression to any treating doctor. She testified about difficulty with her vision, but no doctor has suggested she may need glasses and she has never pursued a remedy for poor vision. She is morbidly obese and gained 70 pounds in less than two years, but she believes she is compliant with her diabetic diet. She alleges that she experiences disabling shortness of breath; however, she continues to smoke cigarettes.
Based on all of the above, I find that the substantial evidence in the record as a whole supports the ALJ's finding that plaintiff is not entirely credible.
Plaintiff argues that the ALJ improperly discounted the opinions of Dr. Donald McGehee and Dr. Janice May, both mental health professionals who examined plaintiff at the request of the government when she applied for government benefits.
Dr. McGehee examined plaintiff one time and assessed generalized anxiety disorder. He assigned a GAF of 60, which means moderate symptoms. He indicated that except the anxiety, all of her other test results were benign. Despite these very moderate findings, Dr. McGehee completed a form required for plaintiff to receive government benefits through the Missouri Department of Social Services by checking the box indicating that plaintiff "does have a mental and/or physical disability which prevents him/her from engaging in that employment or gainful activity for which his/her age, training, experience or education will fit him/her." He made no findings at all regarding plaintiff's limitations which made this opinion nothing more than a conclusion. Dr. McGehee is not a vocational expert, and his summary conclusion that plaintiff could perform no job at all based on suffering from anxiety is not worthy of reliance.
A couple months after he examined plaintiff, Dr. McGehee completed another form, this time in connection with her application for Social Security disability benefits. In this form, Dr. McGehee — who had found that plaintiff suffers only from anxiety and who had a GAF of 60 during Dr. McGehee's one exam — found that plaintiff was "markedly" limited in her
The ALJ discussed the findings of Dr. McGehee and Dr. May simultaneously:
(Tr. at 19-20).
Dr. May examined plaintiff on one occasion in connection with her application for government benefits. Dr. May found that plaintiff "presented in a forthright manner and appeared to be a reliable historian. Therefore, results appear to be a valid and reliable indicator of Mrs. Tate's psychological functioning". However, plaintiff told Dr. May that she "has never been to prison, nor been arrested for substance abuse issues." (Tr. at 430). However, she told Dr. McGehee that, "She was arrested on drug related charges at least twelve times. She spent one year in jail and four and a half years in prison." (Tr. at 420). Clearly Dr. May's reliance on plaintiff's "forthright manner" was misplaced.
Dr. May found that plaintiff would "likely" experience difficulties concentrating — however, in her notes, she indicated that plaintiff's attention and concentration were normal. She found that plaintiff would likely experience difficulties with carrying out or remembering simple instructions; however, the notes of her exam reflect no difficulty with understanding or remembering. She found that, "Depending upon Mrs. Tate's internal motivation and willingness/ability to seek treatment, the expected duration of incapacity is estimated to be 6 to 12 months." This appears to mean that should plaintiff seek treatment, Dr. May would expect her period of incapacity to be six months. In any event, the durational requirement for Social Security disability is not met.
Also noteworthy is that plaintiff told Dr. May that her reason for never having worked was because she chose to be a stay-at-home mom — unrelated to any physical or mental impairment. She also stated that her reasons for not working at the time of the exam were that she had no employment history, she had just moved to Missouri, and she was having trouble meeting her basic needs.
The most important point with respect to these two doctors, however, is the fact that Dr. McGehee diagnosed nothing other than anxiety, and Dr. May did NOT diagnose anxiety. Dr. May diagnosed adjustment disorder with depressed mood, but Dr. McGehee did not. One would think
Finally, both doctors were aware that plaintiff was not on any medication for depression or anxiety. She regularly saw treating doctors to manage her diabetes and had for years. A primary care physician is capable of prescribing medication for depression or anxiety if he believes it is necessary. The fact that plaintiff had never been treated for any mental health impairment suggests that either it was not bad enough for her ever to have mentioned it to a doctor or no doctor ever thought her symptoms warranted a prescription.
Based on all of the above, I find that the ALJ did not err in failing to give controlling weight to the opinions of Dr. McGehee and Dr. May.
Plaintiff argues that the ALJ erred in assessing a residual functional capacity unsupported by the record.
The ALJ stated that in assessing plaintiff's residual functional capacity, he considered opinion evidence, he outlined all of the medical evidence, he discussed plaintiff's subjective complaints and analyzed those, he considered plaintiff's credible subjective complaints, he considered plaintiff's obesity, he gave great weight to the records of plaintiff's treating doctors, and even considering plaintiff's substance abuse, he found her condition to be not disabling.
It is "the ALJ's responsibility to determine claimant's residual functional capacity based on all the relevant evidence, including medical records, observations of treating physicians and others, and the claimant's own description of her limitations." Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir.2007). As discussed above, the ALJ properly discredited plaintiff's subjective complaints and he properly gave little weight to the opinions of Dr. McGehee and Dr. May, both of whom saw plaintiff one time in connection with her applications for government benefits. Based on the credible evidence of record, the ALJ properly found that plaintiff retained the residual functional capacity to perform substantial gainful activity which exists is significant numbers in the national and regional economy.
Based on all of the above, I find that the substantial evidence in the record as a whole supports the ALJ's decision finding plaintiff not disabled. Therefore, it is
ORDERED that plaintiff's motion for summary judgment is denied. It is further
ORDERED that the decision of the Commissioner is affirmed.
