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White v. Colvin

United States District Court, W.D. Missouri, Western Division

September 22, 2014

ROBIN L. WHITE, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

ROBERT E. LARSEN, Magistrate Judge.

Plaintiff Robin White seeks review of the final decision of the Commissioner of Social Security denying plaintiff's application for disability benefits under Title II of the Social Security Act ("the Act") from August 15, 2008, through November 5, 2011. Plaintiff argues that the ALJ erred in (1) giving little weight to the opinions of plaintiff's treating physician, Dr. Boulware, and Adult Psychiatric-Mental Health Clinical Nurse Specialist Mary Case, (2) finding plaintiff not credible, (3) failing to obtain a consultative exam before assessing plaintiff's residual functional capacity, (4) failing to include physical limitations based on plaintiff's obesity, and (5) failing to consider plaintiff's need to empty her intestinal reservoir five to six times per day. I find that the substantial evidence in the record as a whole supports the ALJ's finding that plaintiff was not disabled from August 15, 2008, through November 5, 2011. Therefore, plaintiff's motion for summary judgment will be denied and the decision of the Commissioner will be affirmed.

I. BACKGROUND

On April 2, 2009, plaintiff applied for disability benefits alleging that she had been disabled since August 15, 2008. Plaintiff's application was denied initially. On November 19, 2009, a hearing was held before an Administrative Law Judge. On February 4, 2010, the ALJ found that plaintiff was not disabled. On October 13, 2010, the Appeals Council denied plaintiff's request for review. On September 20, 2011, United States District Judge Nanette Laughrey reversed and remanded for further consideration. On August 13, 2012, a supplemental hearing was held. On August 20, 2012, the ALJ found that plaintiff was disabled as of November 6, 2011, but not before. On March 12, 2013, the Appeals Council denied plaintiff's request for review. Therefore, the second decision of the ALJ stands as the final decision of the Commissioner.

II. STANDARD FOR JUDICIAL REVIEW

Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for judicial review of a "final decision" of the Commissioner. The standard for judicial review by the federal district court is whether the decision of the Commissioner was supported by substantial evidence. 42 U.S.C. § 405(g); Richardson v. Perales , 402 U.S. 389, 401 (1971); Mittlestedt v. Apfel , 204 F.3d 847, 850-51 (8th Cir. 2000); Johnson v. Chater , 108 F.3d 178, 179 (8th Cir. 1997); Andler v. Chater , 100 F.3d 1389, 1392 (8th Cir. 1996). The determination of whether the Commissioner's decision is supported by substantial evidence requires review of the entire record, considering the evidence in support of and in opposition to the Commissioner's decision. Universal Camera Corp. v. NLRB , 340 U.S. 474, 488 (1951); Thomas v. Sullivan , 876 F.2d 666, 669 (8th Cir. 1989). "The Court must also take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory." Wilcutts v. Apfel , 143 F.3d 1134, 1136 (8th Cir. 1998) (citing Steadman v. Securities & Exchange Commission , 450 U.S. 91, 99 (1981)).

Substantial evidence means "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales , 402 U.S. at 401; Jernigan v. Sullivan , 948 F.2d 1070, 1073 n. 5 (8th Cir. 1991). However, the substantial evidence standard presupposes a zone of choice within which the decision makers can go either way, without interference by the courts. "[A]n administrative decision is not subject to reversal merely because substantial evidence would have supported an opposite decision." Id .; Clarke v. Bowen , 843 F.2d 271, 272-73 (8th Cir. 1988).

III. BURDEN OF PROOF AND SEQUENTIAL EVALUATION PROCESS

An individual claiming disability benefits has the burden of proving he 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 he is unable to return to past relevant work because of the disability, the burden of persuasion shifts to the Commissioner to establish that there is some other type of substantial gainful activity in the national economy that the plaintiff can perform. Nevland v. Apfel , 204 F.3d 853, 857 (8th Cir. 2000); Brock v. Apfel , 118 F.Supp.2d 974 (W.D. Mo. 2000).

The Social Security Administration has promulgated detailed regulations setting out a sequential evaluation process to determine whether a claimant is disabled. These regulations are codified at 20 C.F.R. §§ 404.1501, et seq. The five-step sequential evaluation process used by the Commissioner is outlined in 20 C.F.R. § 404.1520 and is summarized as follows:

1. Is the claimant performing substantial gainful activity?

2. Does the claimant have a severe impairment or a combination of impairments which significantly limits his ability to do basic work activities?

3. Does the impairment meet or equal a listed impairment in Appendix 1?

5. Does the impairment prevent the claimant from doing any other work?

IV. THE RECORD

The record consists of the testimony of plaintiff and vocational experts Stella Doring and Carma Mitchell, in addition to documentary evidence admitted at the hearings.

A. SUMMARY OF TESTIMONY

During the first hearing on November 19, 2009, plaintiff testified; and Stella Doring, a vocational expert, testified at the request of the ALJ.

1. Plaintiff's testimony.Plaintiff's testimony.

At the time of this hearing, plaintiff was divorced and was living in a split-level house with her daughter (Tr. at 37). Plaintiff was 5'8" tall and weighed 262 pounds (Tr. at 37). Plaintiff completed high school and has one semester of nursing classes (Tr. at 37). Plaintiff had a driver's license and was driving every day, taking her daughter to and from work which was 20 miles round trip (Tr. at 37-38). She was able to drive to the doctor and to counseling appointments as well (Tr. at 38). She would see her parents once or twice a week (Tr. at 38).

When asked whether she received food stamps, plaintiff said she did receive them when her daughter's boyfriend lived with them, but since he moved out her daughter makes too much money for them to qualify (Tr. at 39). The ALJ asked plaintiff about requesting speedy disposition of her case due to "dire need" (Tr. at 65). She had submitted an eviction notice dated June 1, 2009, for non-payment of rent, addressed to plaintiff and her daughter, Katie Ellrick (Tr. at 65). Plaintiff's daughter was working at the time (Tr. at 65-66).

A. [S]he's not able to pay the $1, 000 rent a month. She gives him her half of the rent.
Q. Well but she's living there, correct?
A. Yes.
Q. Okay. The rent for that house is $1, 000 a month?
A. Yes.
Q. And she makes $1, 918 a month, gross?
A. Yes.
Q. Okay. Who, who indicated that you could be evicted?
A. My landlord, Michael Robbins.
Q. Okay. How many months have you not paid the rent?
A. She gives him $500 a month and I have a running tab. I probably owe him about $4, 000. He's someone that I've known since middle school and so we're friends and he -
Q. But you have not been evicted from that - premises.
A. No.
Q. And that's now five months since he first indicated that he was going to evict you.
A. Yes, we've talked about it.
Q. Okay well ma'am, I'm going to tell you this and I'm going to tell it to you on the record. I don't appreciate this and the reason I don't and you can take this for what it's worth but there are currently over 8, 000 of these cases in this office and we take these critical care/dire need cases very seriously and I was very curious how it was that you filed this request for hearing on June 3 of 09 and got this hearing today and I know now why. But that concerns me greatly.

(Tr. at 66-67).

When asked why she can no longer work, plaintiff testified:

I have such pain in my neck and my back and limited use of my right hand and my mental state is such that I can't concentrate and I just have so much fear and anxiety inside of me that I am afraid to attempt any, the last two jobs I have had I have lost because of my medical condition.

(Tr. at 60).

Plaintiff said her pain is in her lower back, her middle back, her neck and her right leg (Tr. at 67, 68). She rated the pain in her lower back during the hearing was an 8 out of 10, the pain in her middle back was a 5 out of 10, the pain in her neck was an 8 or a 9 out of 10, and the pain in her leg a 6 out of 10 when sitting and a 3 or 4 out of 10 when she stands (Tr. at 67-68). The only medication she has been prescribed for her pain is Meloxicam, a nonsteroidal anti-inflammatory (Tr. at 68).

Plaintiff last worked on August 15, 2008, as an accounts payable clerk (Tr. at 39). At that time she had a small bowel obstruction and was hospitalized (Tr. at 39). Plaintiff has had several surgeries including a total colectomy[1] (removal of the colon), a protectomy (removal of the rectum), and hysterectomy (Tr. at 40).

Plaintiff's hysterectomy was performed at Pasadena Hospital in St. Petersburg, Florida (Tr. at 62). When asked why she went so far away for her surgery, plaintiff testified, "Because I have a Barnett continent intestinal reservoir which is a continent ileostomy[2] and there is not a surgeon in Kansas City who will do any sort of a surgery on the abdomen." (Tr. at 62). Plaintiff has an internal pouch and a catheter tube that she empties five or six times a day (Tr. at 62). Plaintiff does not have much of her small intestine left[3] (Tr. at 63). Because of that she is unable to absorb vitamins and has to give herself a Vitamin B12 shot once a month and she takes Vitamin D once a week (Tr. at 63).

Plaintiff had complications following her hysterectomy resulting in kidney failure and she was in the hospital for that in March of 2009 (Tr. at 40). Plaintiff takes medication for her kidneys and has not had further kidney problems since she was released from the hospital (Tr. at 42-43). Plaintiff was diagnosed with gout in March 2009 but the medication she was put on helps that (Tr. at 43).

In August 2008 plaintiff had a nervous breakdown[4] and was hospitalized (Tr. at 43). Plaintiff began seeing Dr. Luther, a psychologist, in June 2009 (Tr. at 44). The lapse in treatment was due to lack of insurance (Tr. at 44). Plaintiff's gynecologist prescribed Lexapro (antidepressant) because she was having problems with her periods and was unable to take hormone replacement because of a history of blood clots (Tr. at 45). Plaintiff thinks her antidepressant and anti-anxiety medication helps her symptoms, but not always and not fully (Tr. at 46).

On October 31, 2008, plaintiff missed the last stair while descending a staircase and broke a tarsal bone in the top of her foot (Tr. at 46). Plaintiff was seen at the hospital and was put in a walking boot (Tr. at 46). She did not see an orthopedic surgeon because she did not have insurance (Tr. at 46).

Plaintiff has fractures of two vertebrae in her back, and she has sacroiliitis[5] which causes pain in her tail bone down into her right leg (Tr. at 47). She has bulging discs in her neck and bone spurs on her spine and neck (Tr. at 47). Plaintiff had an x-ray, a CT scan, and an MRI, but Medicaid will not pay for physical therapy (Tr. at 47). She was scheduled to see an orthopedic specialist on February 18, 2010 (Tr. at 47). Plaintiff has had injections in her back which only help for a few days (Tr. at 61).

On July 30, 2009, plaintiff's doctor diagnosed beginning stages of fibromyalgia because "it starts in the back" (Tr. a 48). He prescribed Savella but plaintiff had fits of rage with that medication so she was switched to Lyrica (Tr. at 48). She continues to have fits of rage with that medication (Tr. at 48). When asked to give an example, plaintiff testified that the day before, it was her turn at a three-way stop but another car went when it was plaintiff's turn and she was furious and yelled out the window that it's called a stop sign, and she called the driver a dumb-ass (Tr. at 49).

Plaintiff has difficulty remembering things that have happened a short time ago, such as up to a day or two earlier (Tr. at 55-56). She used to have a very good memory, but after her nervous breakdown she developed memory problems (Tr. at 56). She had hallucinations while she was in the hospital (Tr. at 56). Plaintiff went into the hospital August 15, 2008, and was there for a week (Tr. at 56-57). She initially went to the hospital for a bowel obstruction and while there it was discovered that she had an ovarian cyst (Tr. at 57). She was not diagnosed with any mental problem at that time (Tr. at 57). Plaintiff tried to return to work after her hospitalization - for six days the end of October 2008 - but she was unable to do the job (Tr at 59). "They had changed my job and I was in such a poor mental state that I was unable to learn what they wanted me to learn and most days I was very emotional and cried. And I, on the morning of the 28th I was attempting to go back and I just couldn't. I pulled off the side of the road and called the human resource manager and told her I wanted to go back to my home." (Tr. at 59).

Plaintiff has anxiety attacks once or twice a week (Tr. at 60). When asked how long an anxiety attack lasts, plaintiff testified:

If I have a doctor's appointment at 3:00 in the afternoon I start pining about it very early in the morning about the process of having to get up and get ready and leave my house to go to the doctors appointment and generally I get there by the skin of my teeth. You know what I mean? I'm there right at 3:00. Because it takes me that long to convince myself that I have to go.

(Tr. at 60).

Plaintiff has diabetes but she was taken off her diabetes medication in March 2009 and at the time of this hearing was taking nothing for that condition (Tr. at 49). She last had her blood sugar checked several months ago but did not remember the result (Tr. at 49). When asked if her doctor had put her on any kind of diet or exercise, she said, "Just a diet, just I'm monitored on my diet." (Tr. at 49). Plaintiff does not always follow her diet (Tr. at 50). Plaintiff more often has low blood sugar rather than high blood sugar (Tr. at 50).

Plaintiff was first diagnosed with ulcerative colitis in 1977 (Tr. at 50).

Plaintiff gets up around 7:00 a.m. (Tr. at 51). She is able to take care of her own personal hygiene (Tr. at 51). She does minimal cooking (Tr. at 51). She can load and unload the dishwasher, but she does not do laundry due to the stairs (Tr. at 51). Plaintiff does not make beds or clean the bathroom (Tr. at 51).

Plaintiff can walk a block at the most (Tr. at 52). Plaintiff watches television during the day (Tr. at 52). Although she can read, she doesn't (Tr. at 52). She can lift a 12-pack of soda with her left hand but not with her right (Tr. at 52). When asked to describe the most she can lift and carry, plaintiff said she could lift a gallon of milk out of the refrigerator and carry it with both hands to the table (Tr. at 65). She is unable to lift with her right hand because a nerve is "pinched off" in her neck and makes the end of one of her fingers "dead" (Tr. at 53). The bone spurs in her spine caused this years ago (Tr. at 53). Plaintiff had an EMG done 8 years earlier which confirmed this diagnosis (Tr. at 53). Because of her back, plaintiff can only sit for five or six minutes at a time (Tr. at 63). Riding in a car is uncomfortable (Tr. at 63). Slouching back in a chair is her most comfortable position (Tr. at 63). She usually puts her right foot up on her ottoman (Tr. at 64). She cannot elevate her left foot because it is too painful (Tr. at 64). Sitting back in her chair with her right foot up on the ottoman reduces her pain so she stays like that most of the day (Tr. at 64). Plaintiff can stand in one place for five minutes at a time before needing to walk around or sit down (Tr. at 64-65).

Plaintiff is able to squat down to get something off the floor (Tr. at 53-54). If she had to get on the floor to look for something, she could, but she would not be able to get back up (Tr. at 54). She can climb stairs one at a time; she can get on a ladder to change a light bulb if necessary (Tr. at 54). Plaintiff does have problems with balance - she is unable to stand on only one foot, and the night before the hearing she stumbled getting up from her chair, but she does not know why (Tr. at 54). She has not talked to any doctor about her balance problems (Tr. at 55).

Plaintiff can reach into a cabinet to get a can of soup (Tr. at 55). She can hold a cup of coffee, she can use a pen or pencil but she feels a loss of sensation in her finger the longer she writes (Tr. at 55). Plaintiff drops things when she tries to pick them up in her right hand, can only use her right hand for two or three minutes at a time, and then she has to rest her hand for an hour (Tr. at 62). She has no problems with environmental matters (Tr. at 55).

Plaintiff is not a smoker, she does not drink, and she has never used drugs that were not prescribed to her (Tr. at 58).

2. Vocational expert testimony.

Vocational expert Stella Doring testified at the request of the Administrative Law Judge. Plaintiff's past relevant work includes accounts payable clerk, DOT 216.482-010, sedentary, with an SVP of 5; file clerk, DOT 206.367-014, light, with an SVP of 3; and receptionist, DOT 237.367-038, sedentary, with an SVP of 4 (Tr. at 71, 74).

The first hypothetical involved a person who could lift and carry 10 pounds frequently and 20 pounds occasionally; stand and walk for 4 hours per day; sit for 4 hours per day; would need a sit/stand option at will that would not otherwise materially adversely affect his ability to do the job; could push and pull without limitation; could occasionally climb, balance, stoop, kneel, crouch, crawl, finger with the right hand; and could perform work at the SVP 3 level or below (Tr. at 71). The vocational expert testified that such a person could perform plaintiff's past relevant work as a file clerk (Tr. at 71-72).

The second hypothetical was the same as the first except the person would need to elevate his right leg 18 inches off the ground during the day as needed (Tr. at 72). That additional limitation would not affect the person's ability to work as a file clerk (Tr. at 72). The person could also work as a call out operator, DOT 237.367-014, with 310 in Kansas City and 55, 000 in the country. It is a sedentary unskilled job with a sit/stand option routinely available (Tr at 72). The person could also work as a surveillance system monitor, DOT 379.367-010, with 400 in Kansas City and 100, 000 in the country. This is a sedentary unskilled job with a sit/stand option routinely available, and the duties can be performed with one hand (Tr. at 72-73). The person could also work as a hand mounter/photo finisher, DOT 976.684-018, with 120 in Kansas City and 55, 000 in the country. This is a sedentary unskilled job requiring only occasional fingering, and a sit/stand option is often available for these jobs (Tr. at 73).

The vocational expert testified that a person who could not work a full 8-hour day or a full 40-hour week or would miss up to 3 days of work per month due to his impairments would not be able to work (Tr. at 73-74).

During the second hearing on August 13, 2012, plaintiff testified; and Carma Mitchell, a vocational expert, testified at the request of the ALJ.

3. Plaintiff's testimony.Plaintiff's testimony.

Plaintiff's testimony about her condition after November 6, 2011, is not relevant to this case because she has already been found disabled as of that date. However, I have summarized all of her testimony from this hearing.

At the time of this hearing, plaintiff was living in a one-story house with her 85-year-old father (Tr. at 998). Her father had had three stents put in recently due to congestive heart failure (Tr. at 998). Plaintiff lives off her father who makes too much money for them to get food stamps (Tr. at 1005).

Since the last hearing plaintiff's health has gotten worse (Tr. at 999). She had bursitis and a tear in her right shoulder which improved with physical therapy (Tr. at 999). Plaintiff first began having peripheral neuropathy in 2011 (Tr. at 1000). This was caused from a B12 deficiency, which had been caused by the removal of her colon and part of her small intestine (Tr. at 1021). She has numbness from the tips of her toes up to her bladder - the numbness started in 2010 but the bladder problems just started in the last year (Tr. at 1022).

Plaintiff alleges she became disabled on August 15, 2008, because that is the date she went into the hospital for a small bowel obstruction and while she was there she had a nervous breakdown (Tr. at 1000).

Plaintiff had a total colectomy (removal of the colon) with a proctectomy (surgical removal of the rectum) in 1989 which left her with a Brooke ileostomy, which is a bag on the outside (Tr. at 1001). She worked after that surgery (Tr. at 1001). In 1992 she had a procedure which provided an intestinal reservoir - all of her bag is on the inside and she empties it with a catheter tube five or six times a day, depending on how much she eats and what she eats (Tr. at 1001). It takes anywhere from 5 to 20 minutes to empty it (Tr. at 1024). She worked for years after that procedure was done (Tr. at 1001-1002). She had a total revision in 2003 (Tr. at 1002). Plaintiff was diagnosed with right carpal tunnel syndrome in 2010, which was after the last administrative hearing (Tr. at 1002). Her doctor did not recommend surgery because it was not that bad, but it had been acting up more lately (Tr. at 1002).

Plaintiff entered the hearing room using a walker which she said had been prescribed by Dr. William Boulware sometime in 2011 because plaintiff was falling a lot (Tr. at 1002-1003). Plaintiff experiences excruciating pain in her legs whenever she stands up or walks (Tr. at 1003). She can stand for about five minutes maximum, but she does not get up and down very frequently because it is more painful to get up and down than to just sit (Tr. at 1022). Sitting causes plaintiff to have back pain (Tr. at 1023). While plaintiff was sitting at the hearing, she was experiencing pain in her lower back (described as a 5 out of 10) and the soles of her feet were kind of tingly (Tr. at 1003). She had no other pain (Tr. at 1004). Plaintiff can walk 4 or 5 steps before she experiences pain, and she can walk a block at the most (Tr. at 1023).

Plaintiff takes Oxycodone and OxyContin for her back pain (Tr. at 1020). The pain from her sacroiliitis does not affect how long she can sit or stand - it is like a stabbing pain but then it is just gone (Tr. at 1020).

Plaintiff weighed 234 pounds, which was 28 pounds less than at the first administrative hearing (Tr. at 1004).

Plaintiff began taking Abilify[6] and Celexa (antidepressant) in November 2010 which help (Tr. at 1006, 1011). Plaintiff hears voices two or three times a week, and they last all day (Tr. at 1006, 1019). Sometime the voices are very cruel and insulting and other times they just want to have a general conversation with her (Tr. at 1006). Plaintiff has been seeing a doctor for this since November 2010 (Tr. at 1007). Although plaintiff was diagnosed with fibromyalgia in November 2010, she has never had any testing done for that condition (Tr. at 1007).

Plaintiff does not help her father around the house, she does no housework at all, she does very little cooking (Tr. at 1012-1013). Plaintiff's father does housework, and plaintiff's daughter comes over and does the laundry and some of the housework (Tr. at 1013). Plaintiff's dad takes care of her dog for her (Tr. at 1013). She sits in her chair, holds her dog, and watches television all day (Tr. at 1013). Plaintiff's daughter does most of the shopping but makes plaintiff go out with her sometimes (Tr. at 1013-1014). Plaintiff goes to Wal-Mart but she has trouble being around people (Tr. at 1014). Although this has been going on for quite some time, plaintiff has never been diagnosed with anything related to this problem (Tr. at 1014). Plaintiff has never had problems with co-workers or supervisors in the past (Tr. at 1015).

Plaintiff needs to elevate her feet for about 20 minutes three times a day due to edema (Tr. at 1015). The medication she takes has helped with her edema (Tr. at 1015). Plaintiff can climb stairs if she has to (Tr. at 1015). She has problems with balance - she can be standing and just lose her balance (Tr. at 1016). Plaintiff cannot squat (Tr. at 1016). She can lift five or six pounds at the most (Tr. at 1016). She could not pick up any more than that due to pain in her back and the fear of dropping it (Tr. at 1016). Plaintiff can get a can of soup out of the cabinet if it is on the bottom shelf (Tr. at 1017). The highest she can reach is about head level (Tr. at 1018). She can hold a cup of coffee with both hands (Tr. at 1018). She can hold a pen or pencil in one hand but her handwriting is not pretty like it used to be (Tr. at 1018). She can write for 4 or 5 minutes at a time and then she needs to rest for 20 minutes (Tr. at 1021).

Plaintiff has trouble with short-term memory (Tr. at 1017). Her doctors think her medication is causing the problem (Tr. at 1017). She has no other adverse medication side effects (Tr. at 1017).

Plaintiff needs to take naps two or three times a week due to fatigue (Tr. at 1025). Each nap is about three hours (Tr. at 1025). She believes her naps may be caused by depression as well (Tr. at 1025). Her depression is still there but it is not debilitating most of the time (Tr. at 1025). About every 2 or 3 months, she stays in bed for up to 3 days due to depression (Tr. at 1025). Being in Wal-Mart, having to be around people she doesn't know or around large crowds cause plaintiff anxiety (Tr. at 1025). She has an anxiety attack a couple times a month (Tr. at 1025). Her anxiety attacks last about 15 minutes - she usually just goes to the fabric department where there are fewer people and waits for it to pass (Tr. at 1026).

Before plaintiff was committed, her anger led her to be homicidal (Tr. at 1027). She has not had anger problems for at least a year (Tr. at 1027).

4. Vocational expert testimony.

Vocational expert Carma Mitchell testified at the request of the ALJ. Plaintiff has transferrable skills from her past relevant work but only to jobs with an SVP of 3, 4 or 5 (Tr. at 1029).

The first hypothetical involved a person between the ages of 46 and 50 with a high school education who could lift and carry up to 10 pounds, stand and walk 2 hours per day, sit for 6 hours per day, with an unlimited ability to push and pull, and would need a sit/stand option at will without materially adversely affecting his ability to do the job. The person could not use ladders, scaffolding or ropes, could not crouch, crawl or kneel. The person could occasionally climb stairs, balance and stoop. The person could frequently, but not continually, handle and finger with his right upper extremity. The person is limited to simple, unskilled work at SVP 2 or less (Tr. at 1030). The vocational expert testified that such a person could not perform any of plaintiff's past relevant work (Tr. at 1030). The person could do unskilled sedentary work as a document preparer, DOT 249.587-018, sedentary unskilled with an SVP of 2. There are 500 such positions in Missouri and more than 32, 000 in the country. The person could work as an addresser, DOT 209.587-010, sedentary unskilled with an SVP of 2. There are 300 positions in Missouri and over 23, 000 in the country. The person could work as an order clerk, DOT 209.567-014, sedentary unskilled with an SVP of 2. There are 450 such positions in Missouri and 17, 000 in the country (Tr. at 1030-1031).

The second hypothetical was the same as the first except the person would need to have limited contact with the general public (Tr. at 1031). The vocational expert testified that such a person could still work as an addresser and document preparer (Tr. at 1031).

The third hypothetical was the same as the first except the person would need the ability to elevate his foot periodically through the day as high as 18 inches (Tr. at 1032). The vocational expert testified that such a person could still work as an addresser or document preparer (Tr. at 1032).

The fourth hypothetical was the same as the third except the person would be unable to work a full 8-hour day or a full 40-hour week (Tr. at 1032). Such a person could not work (Tr. at 1033).

The fifth hypothetical incorporated the Mental Residual Functional Capacity Assessment completed by Mary Chance, APRN, on April 22, 2012 (Tr. at 1034, 2506-2507). The vocational expert testified:

Well, typically what has been my experience was that if a person would have moderate limitations in those types of area, you know, there are more methods of borderline of being able to sustain work, you know, on a competitive basis. You know, if all the moderates were occurring, you know, if all the problems where the moderate limitations were occurring at the same time, I would expect the person would have difficulty sustaining work. But it would depend on - it was difficult to answer that question.
I would say typically, with that type of profile, they would be on the edge of being able to sustain work, but it has been my experience that with employers, if it does kind of compile, like if they're having difficulty interacting, you know, and accepting criticism and, you know, performing tasks, you know, it just combines to the effect where it's too much and they aren't able to sustain the job.

(Tr. at 1034).

An acceptable absentee rate is one to two days per month, but typically two days every month is unacceptable (Tr. at 1033). If a person needed unscheduled breaks 5 to 6 times per day for 5 to 20 minutes at a time, the person could not work (Tr. at 1033). If the person were off task 20% of the day, he could not work (Tr. at 1033-1034).

B. ADMINISTRATIVE REPORTS

The record contains the following administrative reports:

Earnings Record

The record shows that plaintiff earned the following income from 1979 through 2009:

Year Earnings Year Earnings 1979 $ 1, 642.80 1995 $ 5, 044.611980 3, 055.50 1996 0.00 1981 3, 684.87 1997 9, 236.03 1982 4, 405.30 1998 17, 716.52 1983 2, 430.77 1999 19, 775.15 1984 8, 863.92 2000 25, 654.83 1985 10, 901.04 2001 24, 796.13 1986 6, 900.84 2002 23, 041.48 1987 4, 339.25 2003 26, 142.83 1988 2, 591.83 2004 32, 285.20 1989 9, 171.69 2005 28, 012.77 1990 0.00 2006 29, 046.311991 897.36 2007 30, 521.511992 0.00 2008 23, 492.36 1993 12, 566.43 2009 848.40 1994 15, 585.86 2010 1, 680.64

(Tr. at 154, 1170).

Plaintiff had no earnings in 2011 or 2012 (Tr. at 1170). The earnings listed for 2009 and 2010 were not from employment, they were from plaintiff's insurance company (Tr. at 1176).

Function Report

In a Function Report dated January 6, 2009, plaintiff reported that she takes care of her elderly parents, ages 79 and 81 (195-202). She feeds and waters her dog and cat. Plaintiff has no difficulty with any form of personal care. She does not need reminders to take medicine or perform personal needs. She prepares her own meals. Despite reporting that she prepares her own meals, where the form asked to explain why the claimant cannot prepare meals, plaintiff wrote, "I am tired of fighting and I just don't have the desire to do anything. I hate to leave my home." Plaintiff loads and unloads the dishwasher. She did not do laundry because at the time her foot was broken because she could not navigate the stairs. Plaintiff is able to go out alone and she can drive. She has no problems getting along with others but has never been very social. Her impairments affect her ability to lift, walk, talk, climb stairs, complete tasks and concentrate. Her impairments do not affect her ability to squat, bend, stand, reach, sit, kneel, hear, see, remember, understand, follow instructions, use her hands or get along with others. She can walk a mile before needing to rest for 5 minutes. She can pay attention "as long as needed". She follows written and spoken instructions "very well."

Report of Contact

On April 28, 2009, Lindsey Struemph, DDS, telephoned plaintiff to get more information in connection with her application for disability benefits (Tr. at 232-233). On this day, plaintiff said she was "doing laundry and going up and down stairs.... She still cares for her parents and her mother is having her 17th radiation treatment for esophageal cancer." Plaintiff was able to do laundry, do dishes, and make sandwiches and breakfast. Plaintiff stated that she was able to do more now that her antibiotic had been discontinued. She said she was taken off Cymbalta due to being on an antibiotic and so going outside was "challenging" although plaintiff was able to drive. At the time plaintiff was taking only Klonopin[7] and Allopurinol.[8] "The claimant... can manage her finances if she has any. The claimant then laughed after making this statement."

Plaintiff said she had problems lifting and walking. She said she had mood swings due to her hysterectomy. She was able to climb stairs slowly. She had problems completing tasks and concentrating due to depression and anxiety. Plaintiff said she was no longer able to walk a mile.

Function Report

In a Function Report dated May 26, 2009, plaintiff indicated that she takes her daughter to work and picks her up every day, she cleans the kitchen, loads and unloads the dishwasher, rarely goes outside but when she does she can go out alone and she drives, is able to shop in stores for groceries once a week for a half an hour (Tr. at 241-248). Her impairments affect her ability to lift, squat, bend, stand, walk, climb stairs, complete tasks, and concentrate. Her impairments do not affect her ability to sit, kneel, reach, remember, understand, follow instructions, use her hands or get along with others. She can pay attention "a long as it takes." She follows written and spoken instructions "very well." Plaintiff's diabetes is controlled with diet. Her left foot did not heal correctly causing pain and swelling.

Notice to Quit and Deliver

Michael Robbins prepared a notarized notice to quit and deliver dated May 29, 2009, stated that plaintiff and Katie Ellrick were to deliver possession of their residence on June 1, 2009, due to non-payment of rent (Tr. at 97).

Activities of Daily Living

On September 12, 2009, plaintiff completed an Activities of Daily Living questionnaire in which she reported that she had lived at her current address for three years (Tr. at 273). When asked "Do you plan to move in the near future?" plaintiff responded, "No" despite having received an eviction notice about three months earlier which she used to expedite her disability case under the "dire need" provision.

Application for Disability Benefits

On April 4, 2011, plaintiff filed another application for disability benefits in which she stated that she had not previously filed an application for benefits (Tr. at 1182-1190).

Disability Report

In a Disability Report plaintiff was asked to list all of the physical and mental conditions which limit her ability to work (Tr. at 1212). She included the following: Neuropathy, fibromyalgia, diabetes, Barnett Continent Intestinal Reservoir, gout, hysterectomy, nervous breakdown, back pain, chronic all over body pain, anger issues & outbursts, antisocial behavior, anxiety, neck pain, chronic fatigue, difficulty ambulating, homicidal & suicidal thoughts, lack of focus & concentration, leg cramping, weakness & pain, memory problems, multiple personalities, panic attacks, muscle & arm pains, paranoia, renal dysfunction & failure, kidney issues, risky & dangerous behavior, anemia, sinus polyps, nosebleeds, muscle spasms, vertigo, bladder incontinence, and balancing issues.

Function Report - Third Party

Plaintiff's daughter completed a Function Report on May 15, 2011 (Tr. at 1228-1235). "Due to her recent fall and breaking her rib she is unable to do much of anything." Plaintiff has no trouble with personal care including dressing and bathing. She prepares her own meals daily but they are simple. Plaintiff is able to drive, she is able to shop in stores for groceries once a week for less than an hour. All of the abilities listed on the form were marked as impacted by plaintiff's condition except understanding, following instructions, talking, hearing and seeing. Plaintiff starts what she finishes. She follows written instructions well.

Function Report

Plaintiff completed another Function Report on May 15, 2011, the same day her daughter completed one (Tr. at 1240-1248). Plaintiff is able to help sort and fold clothes, but her father does the heavy lifting. Plaintiff goes out once or twice a week depending on the weather. She drives sometimes. She is able to shop in stores for groceries. Plaintiff's condition affects every ability listed on the form except understanding, getting along with others, hearing, seeing and talking. She can follow written instructions "pretty well." Plaintiff used to go to church before her mother passed away.

C. SUMMARY OF MEDICAL RECORDS

On August 11, 2008, plaintiff saw William Boulware, M.D., and complained of gynecological problems (Tr. at 419, 424). Plaintiff was having "terrible mood swings, irritability, hot flashes". Her physical exam was normal. Dr. Boulware increased plaintiff's Lexapro (antidepressant) and started her on Xanax.[9]

August 15, 2008, is plaintiff's alleged onset of disability.

From August 15, 2008, through August 22, 2008, plaintiff was hospitalized at North Kansas City Hospital (Tr. at 294-338, 358-359, 396-399, 434-439, 441, 668-671). Plaintiff was admitted with what was thought to be a partial small bowel obstruction with a history of ulcerative colitis, [10] status post proctocolectomy[11] with a Barnett continent ileostomy. An NG tube[12] was inserted due to plaintiff's complaints of pain and nausea. Scans confirmed partial small bowel obstruction "presumed from adhesions from previous intra-abdominal infections." Plaintiff's symptoms resolved without surgical intervention (Tr. at 307). Her nausea subsided by August 20, 2008, and she was progressed to solid foods without difficulty. She was discharged with prescriptions for Alprazolam, Vicodin (opioid pain reliever) as needed for pain with one refill, and an antibiotic for a urinary tract infection. Plaintiff's records indicate she was on the same dose of Alprazolam when she was admitted, and therefore her antianxiety medication did not change due to this hospitalization.

Plaintiff testified that she suffered a nervous breakdown during this hospitalization. She was noted to have experienced "generalized anxiety" due to heavy menstrual periods (Tr. at 298). She was described as pleasant by Gregory Mulcahy, M.D. (Tr. at 306). She was observed to be resting comfortably in no acute distress by Brian Wittek, M.D. (Tr. at 308). On August 16, 2008, plaintiff underwent a limited small bowel follow through.[13] During this exam she was in a supine position while a contrast medium was inserted through her nasogastric tube causing gastroesophageal reflux. Plaintiff had a panic attack during this test and it was completed with her in a standing position rather than lying supine (Tr. at 319). At the conclusion of that test plaintiff was in stable condition, and there is no indication that antianxiety medication was required. There is no other mention of anxiety or any other mental symptoms or complaints anywhere in the records of this 8-day hospitalization.

On August 29, 2008, plaintiff saw Dr. Boulware for a follow up after discharge from the hospital (Tr. at 421-422). Plaintiff said she felt horrible, she had no energy, no strength, wears out easily. Dr. Boulware noted that plaintiff's type II diabetes was stable. Her urinary tract infection had resolved. He filled out plaintiff's paperwork to take FMLA time off work until after a gynecological procedure scheduled for early September and ordered lab work.

On September 4, 2008, plaintiff underwent a hysteroscopy, [14] D&C, [15] and Thermachoice endometrial ablation[16] at Liberty Hospital (Tr. at 350, 356-357, 360-362). "The procedure was technically challenging because of Robin's morbid obesity and extreme anteversion of her uterus." Plaintiff tolerated the procedure well.

On September 25, 2008, plaintiff saw Dr. Boulware (Tr. at 416-417). "Wants to talk about anxiety - takes Xanax and Lexapro. Doing the same job × 9 years - changed to Coventry Insurance - they have been nothing but trouble - hasn't received a check yet, drowning', Katie [plaintiff's daughter] is the only one working, they have given her job to someone else - she'll have to work a different job. (wants to go on disability because she's going out of her mind.)" Plaintiff's exam was normal. Dr. Boulware told her to discontinue Xanax and he prescribed Klonopin (mood stabilizer) and Cymbalta (treats major depressive disorder, anxiety, and fibromyalgia).

On October 15, 2008, plaintiff saw Jennifer Salmons, LPC, and reported "recent problems & symptoms of depression and anxiety." (Tr. at 364, 689-693, 701-704). Plaintiff reported that her parents' health was failing and plaintiff was helping to care for them. Plaintiff was on medical leave from work at the time. "Cl struggling financially - going on disability or FLMA [sic]." Plaintiff reported some thoughts of suicide but "couldn't b/c parents & daughter - not seriously." She reported no homicidal ideation. Ms. Salmons performed a mental status exam and noted that plaintiff was well-groomed and cooperative, but agitated and depressed. Her thought process was intact, she had no hallucinations, no delusions. She was fully oriented, her memory was intact, her judgment and insight were minimally impaired. She assessed mood disorder not otherwise specified with a GAF of 65.[17]

On October 16, 2008, plaintiff saw Dr. Boulware (Tr. at 414-415). Plaintiff needed a release to return to work on October 20, 2008. Plaintiff reported that she had seen a counselor, that she was doing well on her increased dose of Klonopin, that emotionally she was feeling better, that her stress seemed more controlled. She was assessed with major depression much better compensated and generalized anxiety disorder better compensated. He gave her a flu vaccination and refilled her medications. "Wrote a release to return to work without restrictions."

On October 27, 2008, plaintiff saw Jennifer Salmons, LPC (Tr. at 364, 693). No specific allegations of mental symptoms were noted; no mention of a recent nervous breakdown was noted.

On October 31, 2008, plaintiff went to Liberty Hospital complaining of left ankle redness, swelling and warmth (Tr. at 367-384, 430-431). Plaintiff was at a friend's house and missed the last stair, tripping. X-rays were taken which showed a possible small avulsion fracture. X-rays showed only mild degenerative changes about the knee with no acute bony abnormality. Plaintiff was given an aircast splint and an Ace wrap and was discharged.

On November 4, 2008, plaintiff saw Dr. Boulware for a follow up on her "left ankle sprain and generalized anxiety disorder with major depression" (Tr. at 410-411). The record indicates that plaintiff had gone to Liberty Emergency Room a few days earlier and it was determined that she did not have an ankle fracture. "Having problems @ work so went back on FMLA. They are wanting her to learn a different job." He refilled her Vicodin, told her to keep her left ankle elevated with ice, "walk with a walker, cane or crutches", and slow rehabilitation instructions were given. "Continue off work for both acute physical and psychiatric problems." Dr. Boulware did not observe any psychiatric problems, he did not list any complaints of psychiatric problems, he did not diagnose any specific psychiatric problems.

On November 14, 2008, plaintiff saw Jennifer Salmons, LPC (Tr. at 675, 683). Plaintiff reported feeling overwhelmed, ...


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