ROBERT E. LARSEN, Magistrate Judge.
Plaintiff Lisa Anne Clark seeks review of the final decision of the Commissioner of Social Security denying plaintiff's application for disability benefits under Titles II and XVI of the Social Security Act ("the Act"). Plaintiff argues that the ALJ erred in finding plaintiff not credible. I conclude 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 April 16, 2008, plaintiff applied for disability benefits alleging that she had been disabled since August 3, 2007. Plaintiff's disability stems from degenerative joint disease of the right knee, fibromyalgia, migraine headaches, bipolar disorder, and depression. Plaintiff's application was denied on June 2, 2008. On November 17, 2009, a hearing was held before an Administrative Law Judge. On January 22, 2010, the ALJ found that plaintiff was not under a "disability" as defined in the Act. On February 3, 2011, the Appeals Council denied plaintiff's request for review. Therefore, the decision of the ALJ stands as the final decision of the Commissioner.
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);
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."
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.
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,
The record consists of the testimony of plaintiff and vocational expert Amy Salva, in addition to documentary evidence admitted at the hearing.
The record contains the following administrative reports:
The record establishes that plaintiff earned the following income from 1979 through 2009:
(Tr. at 138-148).
Plaintiff collected unemployment benefits in the fourth quarter of 2007 and the first quarter of 2008 (Tr. at 148).
In a Missouri Supplemental Questionnaire dated April 24, 2008, plaintiff reported that she experiences drowsiness and dizziness from Flexeril (muscle relaxer), Ultram (an optiate agonist used to treat moderate to moderately severe pain) and Topamax (used to prevent, but not treat, migraine headaches) (Tr. at 175). She lives by herself and is able to do laundry, do dishes using a dishwasher, made beds, change sheets, iron, take out the trash, do her own banking, and go to the post office (Tr. at 175, 177). She can shop for 30 minutes at a time (Tr. at 177). Although she reported that she does not cook, that her meals are brought in, she also indicated that there have been no changes in her meal preparation, cooking, or use of utensils as a result of her impairments (Tr. at 177). Plaintiff is able to drive, goes out about once a week about five to ten miles, and typically stays out of her home for an hour or two once a week (Tr. at 179). She indicated that her body is so sore it hurts for anyone to touch her (Tr. at 180). "My ANA test
In a Function Report dated April 26, 2009, plaintiff reported that she spends her day as follows: "Have coffee, shower, dress, talk on phone, watch TV, late afternoon eat, read, TV, bath, go to bed. This is on a day I am not in severe pain. Most days I am in bed most of the days & I shower & family brings my meals to me if I can keep anything down." (Tr. at 201). Plaintiff reported that she has a hard time lifting a bottle of shampoo or conditioner in the shower because of her arms. She has difficulty holding a hair dryer or curling iron, and she sometimes has difficulty bending to shave her legs (Tr. at 202).
In a report entitled Activities of Daily Living, dated October 4, 2009, plaintiff reported that her condition does not affect her ability to care for her personal needs such as bathing, grooming, dressing, etc. (Tr. at 237). Plaintiff reported that she does her own laundry and that she sometimes needs help with carrying and folding (Tr. at 238). Plaintiff drives and is able to watch television for "a few hours" (Tr. at 239). She spends 30 minutes to an hour reading the newspaper (Tr. at 240). Plaintiff is able to visit on the telephone and has no difficulty with this (Tr. at 241). Plaintiff sleeps for eight to ten hours each night, and she naps for two to three hours each day (Tr. at 241). Plaintiff indicated that she completed the six-page form in her own handwriting (Tr. at 241). Plaintiff stated that water exercise made her joints and muscles feel somewhat better (Tr. at 242).
August 3, 2007, is plaintiff's alleged onset date.
On August 1, August 18, August 31, September 28, and October 5, 2007, and March 1, 2008, plaintiff saw Marilyn Fitzgerald, RN, at the Samaritan Counseling Center, for therapy (Tr. at 369-372). These treatment notes are mostly illegible.
On August 6, 2007, plaintiff saw Ellis Berkowitz, M.D., of Internal Medicine Associates, who noted that plaintiff had not sought treatment at his office in two years and had experienced no serious medical problems during that time (Tr. at 250). However, on this date plaintiff complained of increasing discomfort in her hands and right knee (Tr. at 250). She had recently lost her job and was "unclear as to why that happened" (Tr. at 250). She reported that insomnia was "a bit of an issue," and she had chronic fibromyalgia symptoms that had worsened (Tr. at 250). Physical examination was normal, except that plaintiff's right knee had significant bony crepitus
On August 8, 2007, plaintiff saw C. Daniel Smith, D.O., of the Orthopedic and Sports Medicine Center (Tr. at 266). She reported a six-year history of persistent right knee pain in a peripatellar fashion, i.e., around the kneecap, that was moderate in intensity (Tr. at 266). Dr. Smith noted that plaintiff had normal mood and affect (Tr. at 266). Examination revealed patellofemoral crepitus
On August 15, 2007, plaintiff saw Dr. Smith to discuss the MRI, which the physician noted was normal (Tr. at 263, 265). Plaintiff was doing better, and Dr. Smith indicated that her knee pain may resolve on its own (Tr. at 263).
On August 13, 2007, plaintiff saw K. Kwas Huston, M.D., at the Center for Rheumatic Disease and the Center for Allergy and Immunology (Tr. at 255-57). Plaintiff reported a recent increase in discomfort in her right knee, hands, and ankles and episodes of stiffness and achiness; she was concerned about the possible development of scleroderma
On December 17, 2007, plaintiff saw Ms. Fitzgerald at the Samaritan Counseling Center, who assessed no change in diagnosis, prescribed Seroquel (treats schizophrenia) and Zoloft (treats depression), and discontinued Abilify (treats schizophrenia) due to side effects (Tr. at 282). A mental status examination was normal but for depressed mood (Tr. at 282).
On March 27, 2008, Ms. Fitzgerald noted in a letter that plaintiff had "an extreme case of Fibromyalgia and Migraine headaches" and was unable to continue working as a teller because she was not permitted to sit while working (Tr. at 283). Ms. Fitzgerald noted that pain, swelling, and migraine headaches also affected plaintiff's mental health (Tr. at 283).
On April 10, 2008, plaintiff saw Ms. Fitzgerald, who noted no medication side effects and a normal mental status examination, but for depressed mood (Tr. at 284). Ms. Fitzgerald did not indicate a diagnosis, but increased the dosage of Zoloft (Tr. at 294).
On May 1, 2008, plaintiff saw Ms. Fitzgerald, reporting that the Zoloft increase had helped, but she had pain in her hands, arms, and feet, and could not do any work without sitting (Tr. at 285). The mental status examination was normal but for depressed and anxious mood (Tr. at 285). Ms. Fitzgerald assessed bipolar disorder
On May 12, 2008, Ms. Fitzgerald noted in a letter that plaintiff had been treated at the Samaritan Counseling Center since October 2, 2002, and her current diagnosis was bipolar disorder and major recurrent depression, with a GAF of 43 (Tr. at 286). Ms. Fitzgerald noted that plaintiff had "tried several mood stabilizers with major side effects caused by each one of them," including a rash with Lamictal [treats bipolar disorder], increased blood sugar and triglycerides with Seroquel [treats schizophrenia], and swelling of the hands, feet, face, and joint stiffness with Abilify [treats schizophrenia]" (Tr. at 286). Ms. Fitzgerald noted that plaintiff's current medications, prescribed by her and Dr. John Cox, were Zoloft, Topamax, Flexeril, and Ultram (Tr. at 286). She noted that plaintiff could not work due to physical pain and mood stabilization condition (Tr. at 286).
On July 7, 2008, plaintiff saw Ms. Fitzgerald, who noted that plaintiff had no side effects of medications, and a mental status examination was normal but for depressed mood (Tr. at 287). Ms. Fitzgerald did not make an assessment, but prescribed Zoloft and Seroquel (Tr. at 287).
On October 23, 2008, plaintiff saw Ms. Fitzgerald, noting that her depression was better, but she had medication side effects (Tr. at 288). A mental status examination was normal but for depressed mood (Tr. at 288). Ms. Fitzgerald noted no change in assessment, and she prescribed medications including Seroquel (Tr. at 288).
On November 18, 2008, plaintiff saw Ms. Fitzgerald, who indicated that plaintiff had no medication side effects and her mood was stable (Tr. at 289). The mental status examination was normal (Tr. at 289). The assessment was unchanged and Ms. Fitzgerald prescribed medications including Zoloft and Seroquel (Tr. at 289).
On May 30, 2008, State agency medical consultant Joan Singer, Ph.D., completed a Psychiatric Review Technique form, indicating that plaintiff had bipolar disorder, but did not meet or equal a listing (Tr. at 271-281). Dr. Singer noted that plaintiff had mild restrictions in activities of daily living; moderate restrictions in social functioning; moderate restrictions in concentration, persistence, and pace; and no repeated episodes of decompensation of extended duration (Tr. at 279). Dr. Singer also completed a mental residual functional capacity ("RFC") assessment on May 30, 2008 (Tr. at 268-270). She indicated that plaintiff had moderate limitations in the ability to work in coordination with or proximity to others without being distracted by them, complete a normal workday and workweek without interruptions from psychologically based symptoms, perform at a consistent pace without an unreasonable number and length of rest periods, accept instructions and respond appropriately to criticism from supervisors, and respond appropriately to changes in the work setting (Tr. at 268-269). She found that plaintiff had no other significant limitations (Tr. at 268-269).
On December 3, 2008, plaintiff saw Dr. Berkowitz for fibromyalgia, urinary incontinence, and bleeding hemorrhoids (Tr. at 296-97). She reported no pain (Tr. at 296-97). A physical examination was normal except for hemorrhoids (Tr. at 296). Dr. Berkowitz increased plaintiff's dosage of Topamax, Zoloft, and Ultram, kept her on Flexeril, and added Zyprexa (treats schizophrenia) (Tr. at 297).
On February 10, 2009, plaintiff saw Dr. Berkowitz, complaining of bilateral arm pain that she attributed to Crestor (reduces cholesterol) as well as bilateral hand numbness (Tr. at 292-93). Plaintiff reported pain at a nine or ten out of ten (Tr. at 292-293). Physical examination was normal, with no inflammation, swelling, or tenderness involving plaintiff's ankles, calves, knees, thighs, fingers, or wrists, although she had "some minimal, if at all, tenderness" in her arms (Tr. at 292). Dr. Berkowitz discontinued Crestor for hyperlipidemia, and assessed arm arthralgias (severe pain in a joint), myalgias (muscle pain), and fibromyalgia (Tr. at 292).
On March 2, 2009, plaintiff saw Umar Daud, M.D., of Heartland Arthritis and Osteoporosis Center, for consultation regarding aches and pains (Tr. at 301-305). Plaintiff reported pain at a ten out of ten, fatigue and depression at a five out of ten, anxiety and sleep problems at a three out of ten, and gastrointestinal issues at a one out of ten (Tr. at 301). Plaintiff reported that she was diagnosed with fibromyalgia in 2001 and had a positive ANA (Tr. at 301). Most of her pain was in the muscles of her hands, but she reported "some elbow pain" and difficulty picking up objects, which was new (Tr. at 302). She also reported swelling, redness, and warmth of the small joints of the hands, morning stiffness lasting from a few minutes to a few hours, and was experiencing "new and different" pain (Tr. at 302).
A physical examination was normal but for tenderness over multiple joints (Tr. at 304). Dr. Daud assessed a history of positive ANA, arthralgias, myalgias, and weakness, complicated by a history of depression, bipolar, chronic headache, and sinusitis (Tr. at 304). He noted that plaintiff seemed to have developed chronic pain syndrome, but this was a diagnosis of exclusion, so he planned to evaluate her for inflammatory arthritis and connective tissue disease (Tr. at 305). He ordered laboratory testing and recommended Lyrica (treats nerve pain and fibromyalgia) in addition to plaintiff's other psychiatric medications, but asked plaintiff to discuss this with her psychiatrist (Tr. at 305). He also recommended water therapy, weight loss, and exercise (Tr. at 305).
On April 1, 2009, plaintiff saw Dr. Daud for follow-up, reporting symptoms of increased aches and pains, fatigue, bilateral elbow pain, and morning stiffness (Tr. at 311-16). Dr. Daud noted that plaintiff had fibromyalgia (Tr. at 312). Physical examination was normal, except plaintiff had tenderness over multiple joints and the bilateral epidcondyles,
In response to a letter from plaintiff's attorney on April 29, 2009, Dr. Berkowitz declined to give an opinion regarding plaintiff's RFC (Tr. at 429).
On June 2, 2009, plaintiff saw S.R. Davuluri, M.D., at Heartland Neurology for evaluation of headaches (Tr. at 321-325). Plaintiff reported five to six "bad" headaches per month, with nausea and photophobia (Tr. at 321). She had been on Topamax since 1998 (Tr. at 321). She also reported bladder dysfunction, fibromyalgia, and difficulty sleeping (Tr. at 321, 323). Dr. Davuluri noted no functional impairment in daily living (Tr. at 323). Examination revealed that plaintiff was in no acute distress, fully oriented, with normal speech, cranial nerve function, muscle tone and strength, gait and ambulation, and sensory perception (Tr. at 324-325). Examination was unremarkable, but plaintiff appeared to have a combination of migraine and rebound headaches
On June 2, 2009, Ms. Fitzgerald completed a mental RFC questionnaire (Tr. at 343-347). She noted that she began treating plaintiff with cognitive behavioral therapy on October 24, 2002, after the death of her husband (Tr. at 343). Ms. Fitzgerald noted that plaintiff's mood was stable, but she complained of constant headaches and physical pain (Tr. at 343). Providers with her office prescribed Sertraline (Zoloft, an antidepressant), Seroquel (treats schizophrenia), Topamax (prevents migraine headaches), Flexeril (muscle relaxer), and Ultram (pain reliever) for plaintiff, which caused side effects including drowsiness, fatigue, weight gain, and confusion (Tr. at 343). Ms. Fitzgerald noted that, without therapy and medication, plaintiff had periods when she stayed at home in bed, followed by an inability to control her urges and erratic behaviors due to bipolar disorder (Tr. at 343). She noted that plaintiff's condition was controllable "to a point," and that chronic pain magnified plaintiff's psychological symptoms (Tr. at 343). Ms. Fitzgerald noted that those symptoms included decreased energy, appetite disturbance, emotional lability, flight of ideas, manic syndrome, mood disturbance, difficulty thinking or concentrating, recurrent and intrusive recollections of a traumatic experience, sleep disturbance, occasional isolation or emotional withdrawal, and bipolar syndrome (Tr. at 344).
Ms. Fitzgerald opined that plaintiff was seriously limited, but not precluded, in the ability to sustain an ordinary routine without special supervision and the ability to get along with co-workers or peers without unduly distracting them or exhibiting behavioral extremes (Tr. at 345). She found that plaintiff was unable to meet competitive standards with regard to her ability to:
(Tr. at 345-346).
Ms. Fitzgerald indicated that plaintiff had no useful ability to perform at a consistent pace without unreasonable breaks or to deal with normal work stress (Tr. at 345). Plaintiff's abilities were otherwise unlimited or satisfactory (Tr. at 345-346). Ms. Fitzgerald found that plaintiff would likely miss more than four days of work per month and pain made it difficult for plaintiff to be in one position (Tr. at 347).
On June 4, 2009, plaintiff saw Matthew T. Robinson, M.D., at the Heartland Regional Medical Center Emergency Room for a "moderately severe" headache with nausea and vomiting that had lasted 20 hours (Tr. at 333-39). The physician diagnosed migraine and prescribed Phenergan for nausea (Tr. at 336).
On July 8, 2009, State agency psychological consultant Richard Kaspar, Ph.D., reviewed the evidence of record and affirmed the findings of Dr. Singer dated May 30, 2008 (Tr. at 340).
On July 17, 2009, State agency medical consultant Robert Hughes, M.D., reviewed the evidence of record and completed a physical RFC assessment, indicating that plaintiff could lift and carry 20 pounds occasionally and ten pounds frequently and stand, sit, and walk about six hours each in an eight-hour workday (Tr. at 360).
On July 28, 2009, plaintiff saw Dr. Davuluri, reporting continued headaches (Tr. at 326). She continued to take Excedrin migraine and was not taking Depakote because of weight gain (Tr. at 326). Plaintiff stated that she had about five headaches per month, the worst one lasting six days, with blurred vision and pain in her chest and abdomen (Tr. at 326). An MRI was normal (Tr. at 326). Plaintiff was in no acute distress, and an examination was unremarkable (Tr. at 329-30). Dr. Davuluri diagnosed common migraine and prescribed Verapramil (treats high blood pressure and chest pain) and Treximet (treats migraine headaches) (Tr. at 330).
Also on July 28, 2009, Dr. Davuluri completed a "Headaches Residual Functional Capacity Questionnnaire" (Tr. at 221-226). He stated that he had treated plaintiff since June 2, 2009, for migraine headaches that occurred five to six times per month,
On September 6, 2009, plaintiff saw Douglas Goodman, M.D., at the Heartland Regional Medical Center Emergency Room (Tr. at 403). The physician diagnosed low blood pressure and noted that it was caused by Verapramil (Tr. at 397).
On September 9, 2009, plaintiff saw Dr. Berkowitz and had stopped Verapramil (Tr. at 404). Dr. Berkowitz discontinued Lyrica (treats nerve pain) and prescribed Enablex (treats overactive bladder) and Treximet (treats acute migraine headaches) (Tr. at 404). Plaintiff reported no pain (Tr. at 404).
The following records were submitted to the Appeals Council after the ALJ's denial of plaintiff's application.
On January 3, 2010, plaintiff saw Frances Dea Flynt, NP, at the Heartland Regional Medical Center Emergency Room, complaining of ear pain, headache, nausea, vomiting, and a sore throat since the day before (Tr. at 431-33). Her condition resolved and she was discharged that day (Tr. at 433).
On March 15, 2010, plaintiff saw Rebecca L. Roberts, D.O., at the Heartland Regional Medical Center Emergency Room, reporting a migraine that had lasted five days (Tr. at 436). Examination indicated plaintiff was in moderate distress, and she was diagnosed with migraine headache, prescribed medication, and discharged home in improved and stable condition (Tr. at 437).
On March 16, 2010, plaintiff saw Toby E. Miller, APN, at the Heartland Regional Medical Center Emergency Room and reported that her headache had persisted without improvement (Tr. at 439-40). She stated that this was a "typical migraine for her" (Tr. at 440). She was discharged home in improved and stable condition that day (Tr. at 441).
During the November 17, 2009, hearing, plaintiff testified; and Amy Salva, a vocational expert, testified at the request of the ALJ.
At the time of the hearing, plaintiff was 45 years old and is currently 48 (Tr. at 40). She lived alone in a house with a basement (Tr. at 41). She is a widow and has no children (Tr. at 41). She hires someone to do her yard work (Tr. at 66).
Plaintiff is 5' 8 ½" tall and at the time of the hearing weighed 140 pounds (Tr. at 41). Plaintiff has 14 ½ years of education (Tr. at 42). She has a valid driver's license and drives once or twice a week (Tr. at 42). She shops for groceries every two or three months; otherwise, her mother brings groceries for her (Tr. at 42). Plaintiff's income consists of $621 per month (Tr. at 42).
Plaintiff was asked when she last worked, and she said it was in August 2007 (Tr. at 42). The ALJ then indicated that her earnings record showed she worked at Nodaway Valley Bank in January 2008 (Tr. at 43). Plaintiff said, "I worked there for a very short time. I was not able to handle the work. It was just like a couple weeks or so." (Tr. at 43). Plaintiff then testified she also worked at North American Savings for a very short time during 2008 (Tr. at 43).
Plaintiff suffers from migraine headaches (Tr. at 44). She went on Topamax in 1998 and then went on Imitrex in 2000 but was also kept on the Topamax (Tr. at 44). Plaintiff said she takes Treximet, which came out after Imitrex (treats migraine headaches), and she takes that and Topamax back and forth (Tr. at 44). The Treximet, which she began taking in September 2009, "helped some" (Tr. at 45). She used to have about four headaches a month, but since 2008 she now has six or seven a month and they last from three days to six or seven days (Tr. at 53). She vomits with headaches and has to take medication for nausea (Tr. at 53). Plaintiff explained that Topamax is a preventative medicine and Treximet is what she takes when she has a headache (Tr. at 53). Plaintiff said she had an MRI of her head that came back normal (Tr. at 55). Plaintiff had some other studies done on her head in the late 1990s and she was told that the lower left lobe of her brain showed hardly any color (Tr. at 55-56).
Plaintiff suffers from bipolar disorder and takes Zyprexa, Zoloft, and Seroquel (Tr. at 45-46). She is "down" more often than she is manic (Tr. at 51). She very seldom has the high peaks (Tr. at 51). Plaintiff takes Ultram, Lyrica, and Flexeril but is still in daily pain (Tr. at 47). Those drugs help to some extent, however (Tr. at 47).
Plaintiff's fingers are painful, swell, go numb, and lock up (Tr. at 48). She has severe pain in her arms (Tr. at 49). She has pain and swelling in her feet and toes (Tr. at 49). Dr. Kimpton told her in 2001 to stay off her feet and elevate them (Tr. at 49). Plaintiff said her ANA tests always come back positive; however, the ALJ noted that an ANA test from St. Luke's in August 2007 was negative
During plaintiff's testimony she was asked whether she was in pain; she said her arms, feet, right knee and head were hurting (Tr. at 56). On a scale of 1 to 10 with 10 being pain she cannot endure, she testified that her arms were a 9 during the hearing, her feet were an 8, her knee was a 9, and her head was a 7 (Tr. at 56-57). She had taken Ultram that day (Tr. at 57). This level of pain is fairly typical despite her medications (Tr. at 57).
Plaintiff could not lift a 12-pack of soda from a table and put it on the floor because "half the time" her hands go numb (Tr. at 57). She can grip a cup of coffee or one soda (Tr. at 57-58). She can use small objects like a pen or pencil (Tr. at 58). She can reach into a cabinet to get a can of soup (Tr. at 58). She could bend over and pick up keys off the floor (Tr. at 58). She could get down on the floor to look for her keys if she could not find them (Tr. at 58). She can climb the stairs in her house if necessary (Tr. at 58). Some days she is dizzy and her balance is off so she falls into things (Tr. at 58). Heat, cold, and chemical smells will send her to the doctor (Tr. at 59). Plaintiff smokes a half a pack of cigarettes per day (Tr. at 59). She could walk a couple of blocks if necessary (Tr. at 59). Plaintiff is able to do no housework at all (Tr. at 59-60). She does no cooking and she does no dishes — her mother does all of that for her (Tr. at 60). She said she sees her mother about every other day (Tr. at 60). When asked whether she does not eat on the days she does not see her mother, plaintiff said she actually could make things in the microwave (Tr. at 60). She goes to restaurants occasionally (Tr. at 60).
Plaintiff has trouble going to sleep, so she normally sleeps from about 3:00 or 4:00 a.m. until around noon (Tr. at 61). She takes a shower, watches television, talks to her friends on the phone, goes to appointments, and visits with friends when they come over (Tr. at 61). Plaintiff takes Amitryptiline (antidepressant) and Flexeril (muscle relaxer) to help her sleep (Tr. at 61). They help some (Tr. at 62). Plaintiff has problems concentrating and remembering because of the fibromyalgia — it puts her in a fog (Tr. at 62). On bad days plaintiff stays in bed all day in a dark quiet room (Tr. at 65). She uses ice packs and is "pretty well incapacitated" (Tr. at 65). Bad days consist of having a migraine headache or depression (Tr. at 65).
Plaintiff's medication causes dizziness, drowsiness, depression, nausea, fatigue, blurred vision, and weight gain (Tr. at 62-63). The ALJ noted that plaintiff's most recent record said she weighed 145 and she testified that she weighed 140 — plaintiff said she had lost weight lately because she had been "real upset" (Tr. at 63).
A couple years earlier, plaintiff was bitten by a tick (Tr. at 67). She was in the hospital and her organs were shutting down (Tr. at 67). She was dying and the doctors finally diagnosed her with ehrlichiosis,
Vocational expert Amy Salva testified at the request of the Administrative Law Judge. The first hypothetical involved a person who could do light work, lifting and carrying up to 20 pounds occasionally and ten pounds frequently; could stand and walk for six hours; could sit for six hours; would have an unlimited ability to push and pull; could not use ladders or scaffolding; could occasionally climb stairs, balance, stoop, kneel, crouch, and crawl; should avoid concentrated exposure to heat, cold, fumes, and odors; and would need to be limited to simple work of SVP 3 or less (Tr. at 70). The vocational expert testified that such a person could not do any of plaintiff's past relevant work; however, the person could work as a retail marker, D.O.T. 209.587-034, with 2,300 in Kansas City, 5,400 in Missouri, and 260,000 in the nation (Tr. at 70-71). The person could also work as an office helper, D.O.T. 239.567-010, with 2,100 in Kansas City, 5,100 in Missouri, and 140,000 in the country (Tr. at 71). The person could work as a collating machine operator, D.O.T. 208.685-010, with 500 positions in Kansas City, 2,000 in Missouri, and 70,000 in the nation (Tr. at 71).
The second hypothetical involved a person with all the limitations in the first hypothetical but who would not be able to do more than sedentary work, could not lift more than ten pounds and could not stand or walk for more than two hours per day (Tr. at 71-72). The vocational expert testified that such a person could work as an optical goods assembler, D.O.T. code 713.687-018, with 750 in Kansas City, 1,100 in Missouri, and 68,000 in the nation (Tr. at 72). The person could also work as a circuit board assembler, D.O.T. 726.685-110, with 2,100 in Kansas City, 5,000 in Missouri, and 350,000 in the country (Tr. at 72). The person could work as a document scanner, D.O.T. 249.587-018, with 700 in Kansas City, 2,000 in Missouri, and 145,000 in the country (Tr. at 72).
The third hypothetical involved a person with all the limitations as in the second hypothetical but who could only occasionally finger and handle (Tr. at 72). The vocational expert testified that such a person could not work (Tr. at 73).
The next hypothetical incorporated the limitations set out by Dr. Davuluri (Tr. at 244-249) which include the need to take unscheduled breaks to lie down several times a month for several days at a time, the inability to perform even low-stress jobs, and the need to miss work more than four days per month as a result of her impairments or treatment (Tr. at 73-74). The vocational expert testified that such a person could not work (Tr. at 74).
Administrative Law Judge Guy Taylor entered his opinion on January 22, 2010 (Tr. at 15-28). The ALJ found that plaintiff meets the insured status requirements of the Social Security Act through June 30, — (Tr. at 17).
Step one. Plaintiff has not engaged in substantial gainful activity since her alleged onset date (Tr. at 17). Plaintiff's earnings record shows that she worked after her alleged onset date; however, "giving the claimant the benefit of the doubt," the ALJ determined that this work "arguably qualifies as a series of two unsuccessful work attempts." The ALJ noted that after plaintiff's alleged onset date, she applied for and received $2,310 in unemployment benefits during the fourth quarter of 2007 and $654 during the first quarter of 2008. "In order to receive unemployment benefits the claimant had to certify that she was ready, willing and able to work, which is inconsistent with her testimony that she was not able to work during the periods of time she received unemployment benefits." (Tr. at 17).
Step two. Plaintiff has the following severe impairments: degenerative joint disease of the right knee, fibromyalgia, migraine headaches, and bipolar disorder/depression (Tr. at 18). He found that the following impairments are not medically determinable: Raynaud's phenomenon/ syndrome, disease from a tick bite, and hypotension (Tr. at 18).
Step three. Plaintiff's severe impairments do not meet or equal a listed impairment (Tr. at 18). The ALJ found that plaintiff has mild restriction in activities of daily living; moderate restriction in social functioning; moderate difficulties with concentration, persistence and pace; and has no episodes of decompensation (Tr. at 19).
Step four. Plaintiff retains the residual functional capacity to perform sedentary work but with no use of ladders or scaffolds; she may only occasionally climb stairs, balance, stoop, kneel, crouch or crawl; she must avoid concentrated exposure to heat, cold, fumes and odors; and she is limited to simple work with an SVP of 3 or less (Tr. at 19). With this residual functional capacity, plaintiff cannot return to her past relevant work (Tr. at 27).
Step five. Plaintiff can adjust to other work in significant numbers in the national and regional economy, such as optical goods assembler, circuit board assembler, and document scanner (Tr. at 28).
Plaintiff argues that the ALJ erred in finding that plaintiff's testimony was not credible.
The credibility of a plaintiff's subjective testimony is primarily for the Commissioner to decide, not the courts.
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.
The specific reasons listed by the ALJ for discrediting plaintiff's subjective complaints of disability are as follows:
(Tr. at 25-26).
Here, the ALJ properly considered inconsistencies between plaintiff's subjective allegations and the objective medical evidence.
Although plaintiff's right knee had "significant bony crepitus," x-rays and an MRI were normal. At the hearing, plaintiff described severe fibromyalgia pain, numbness, joint stiffness, and a near total impairment in activities of daily living. Yet, physical examinations consistently indicated good strength and range of motion and no edema or other changes in her upper or lower extremities. Indeed, in December 2008 and September 2009, while seeking treatment for other complaints, plaintiff reported no pain (Tr. at 296-297, 404). Plaintiff did not have treatment by a specialist for headaches until June 2009 when she saw neurologist Dr. Davuluri. He treated her only twice, and both examinations and an MRI were normal. Dr. Davuluri noted no functional impairment in plaintiff's activities of daily living.
On one occasion when plaintiff saw Dr. Berkowitz, she reported pain at a nine or ten out of ten (Tr. at 292-293). Despite this description of unbearable pain, plaintiff's physical examination was normal, with no inflammation, swelling, or tenderness involving plaintiff's ankles, calves, knees, thighs, fingers, or wrists, although she had "some minimal, if at all, tenderness" in her arms. Plaintiff complained of pain rated a ten out of ten when she saw Dr. Daud — he in turn recommended water therapy, weight loss, and exercise.
Plaintiff argues that the ALJ failed to consider her "persistent efforts to obtain relief" in his credibility analysis. Yet, the ALJ's decision contains a thorough discussion of the medical evidence regarding plaintiff's treatment history. Plaintiff also argues that the ALJ misinterpreted a conclusion by Dr. Daud that she had "good treatment for fibromyalgia" to mean "good results from fibromyalgia treatment" rather than "proper treatment." Yet, this reading is consistent with the relatively mild findings reported in Dr. Daud's treatment note and other evidence of record, including Dr. Berkowitz's note in August 2007 that plaintiff's fibromyalgia was "doing well" with medication.
The federal regulations state that although an ALJ may not reject a claimant's subjective complaints based solely on the objective medical evidence, such evidence is a useful indicator in making conclusions about the effect of symptoms, such as pain, on the claimant's ability to work.
The ALJ also cited plaintiff's course of treatment, finding that her allegations of severe pain (plaintiff testified that even after having taken her medication, on a scale of one to ten with ten being pain she cannot endure, her arms were a nine during the hearing, her feet were an eight, her knee was a nine, and her head was a seven — which she characterized as typical daily pain) were inconsistent with a lack of aggressive treatment and hospitalizations. Plaintiff sought emergency room treatment for headaches only twice during the relevant period, in June 2009 and January 2010, and also sought emergency treatment for a headache on March 15 and 16, 2010. Plaintiff did not seek treatment with a pain management specialist (Tr. 250-441). Instead, her providers recommended medication and exercise.
Plaintiff was noncompliant with recommendations that she exercise. Drs. Berkowitz, Huston, and Daud recommended exercise for fibromyalgia pain relief. Plaintiff testified that she did water exercise and it helped, but she quit due to headaches.
Plaintiff testified that she quit working due to her impairments, but the ALJ noted evidence that she had been laid off. The fact that a claimant leaves a job for reasons other than her medical condition is a proper consideration in assessing credibility.
The ALJ articulated the inconsistencies upon which he relied in discrediting plaintiff's allegations regarding the extent of her limitations. This finding is supported by substantial evidence in the record as a whole. Therefore, plaintiff's motion for judgment on this basis will be denied.
In her credibility argument, plaintiff suggested that the ALJ improperly weighed the medical opinion of Dr. Davuluri who, in a Headaches Residual Functional Capacity Questionnnaire, stated that plaintiff's prognosis was poor, she would generally be precluded from performing basic work activities, and she would need unscheduled breaks several times per month, lasting up to several days.
A treating physician's opinion is granted controlling weight when the opinion is not inconsistent with other substantial evidence in the record and the opinion is well supported by medically acceptable clinical and laboratory diagnostic techniques.
The ALJ had this to say about Dr. Davuluri's opinion:
(Tr. at 26-27).
Dr. Davuluri treated plaintiff only two times prior to giving his opinion. The Eighth Circuit has held that such a short treatment relationship does not warrant controlling weight because it does not provide a longitudinal picture of a claimant's impairments.
Moreover, Dr. Davuluri's opinion was not well-supported by medically acceptable clinical and laboratory diagnostic techniques. Dr. Davuluri stated that plaintiff's prognosis was poor, she would be precluded from performing even basic work activities when she had headaches, she would require unscheduled breaks to lie down several times per month, she would be absent more than four times per month due to her condition or treatment, and she was incapable of even low stress jobs. However, treatment notes from plaintiff's two visits with Dr. Davuluri indicate no objective findings to support these extreme limitations. Examinations on both occasions were unremarkable. Consequently, it appears that Dr. Davuluri's opinions were based on plaintiff's subjective reports, rather than objective medical evidence.
Based on all of the above, I conclude that the substantial evidence in the record as a whole supports the ALJ's finding that plaintiff is not disabled. Therefore, it is
ORDERED that plaintiff's motion for summary judgment is denied. It is further
ORDERED that the decision of the Commissioner is affirmed.
