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Lee v. Colvin

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

January 14, 2015

SARAH LEE, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


ROBERT E. LARSEN, Magistrate Judge.

Plaintiff Sarah Lee 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) relying on vocational expert testimony which conflicts with the Dictionary of Occupational Titles, (2) failing to consider the third-party statement of Mr. Merriman, (3) failing to consider the impact of plaintiff's obesity on her residual functional capacity, and (4) failing to include all of Mr. Keough's opinions in the residual functional capacity assessment. 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 February 28, 2006, plaintiff applied for disability benefits alleging that she had been disabled since July 11, 1999. She later amended her alleged onset date to February 28, 2006, to correspond with the filing date of her application for supplemental security income (Tr. at 10). Plaintiff's application was denied initially and by Administrative Law Judge Robert Evans on November 12, 2008. On July 30, 2010, the Appeals Council remanded the case and directed the ALJ to obtain additional evidence concerning plaintiff's post traumatic stress disorder, depression and social phobia; evaluate plaintiff's mental impairment; give further consideration to plaintiff's maximum residual functional capacity during the entire period at issue and provide rationale with specific references to the evidence of record in support of assessed limitations; and if warranted, obtain evidence from a vocational expert to clarify the effect of the assessed limitations on the plaintiff's occupational base (Tr. at 60-61). On April 13, 2011, a second hearing was held before Administrative Law Judge George Bock. On June 15, 2011, the ALJ found that plaintiff was not under a "disability" as defined in the Act. On June 11, 2013, 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); 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).


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?

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 Richard Sherman in addition to documentary evidence admitted at the hearing.


The record contains the following administrative reports:

Earnings Record/Work History Report

The record shows that plaintiff's lifetime earnings total $751.88 (Tr. at 140, 148-149). She earned $325.00 in 1996, $25.18 in 1997, and $401.70 in 1998. Plaintiff's earnings were reported from the Full Employment Council, Hardee's, Sonic, Small World, and Richmond Public School District (Tr. at 154). She described her past work as a cook at two restaurants, a retail position at the Salvation Army, and a care giver at a day care (Tr. at 160). Plaintiff has not worked since 1998. On March 24, 2006, she reported, "I cannot find a job because when they hear about my back they never give me a job and my child support is so [sporadic] I can hardly pay my bills." (Tr. at 167).

Function Report

In a Function Report dated March 24, 2006, plaintiff stated that she fills the dishwasher, sweeps the floors, mops once a week, makes dinner, takes care of three children, prepares meals daily for about an hour each time, cleans, does laundry, and sews clothes (Tr. at 168-175). Sometimes she gets friends to help her with some of her tasks. Plaintiff does not go outside often "because I have minor agoraphobia" (Tr. at 171). Plaintiff drives "but my car is broke down right now, can't afford to fix [it]" (Tr. at 171). Plaintiff shops for groceries in stores for 30 minutes once a week. Plaintiff visits family and friends once a week.

Disability Report

In an undated Disability Report plaintiff reported that she weighed 140 pounds (Tr. at 176-183). Plaintiff reported that she stopped working on June 1, 1997, because her husband did not want her to work (Tr. at 177). Her employment consisted of working in two fast food restaurants, working as a crossing guard at an elementary school, working a retail job at the Salvation Army, and working as a care giver in a day care (Tr. at 178).

Written Questions to Claimant

In this document, dated July 26, 2008, plaintiff reported that she weighed 170 pounds (Tr. at 200). She stopped working in 1998 because her ex husband made her quit. Since she stopped working, she has supported herself with AFDC, child support, and food stamps. When asked what she has done to find work since her last job ended, she wrote that no one will hire her with her injury and she is afraid of people. It takes plaintiff days to clean her house due to constant pain and sometimes her friends come to help. She is able to drive but after about 30 minutes the pain is almost unbearable. Nothing in her physical or mental condition had changed since she first filed her claim two years and five months earlier. Plaintiff had Medicaid coverage (Tr. at 202), yet she has not participated in or sought treatment through physical therapy, pain management clinic, acupuncture, biofeedback, chiropractor, TENS unit, or traction because she has no money and no car (Tr. at 203). Plaintiff was asked how her mental condition limits her ability to work. She reported that she is afraid of people she doesn't know and of large areas and has "some memory loss" (Tr. at 207).

Function Report

On August 9, 2010, plaintiff completed a Function Report in which she reported that she prepares her own meals daily while sitting, she cleans once a week, and she shops in stores for groceries once or twice a week for less than an hour. Her condition does not affect her ability to reach, complete tasks, concentrate, understand, follow instructions, get along with others, or use her hands. She can pay attention for a long time, she follows written instructions very well, she follows spoken instructions well, she gets along with authority figures well, she handles changes in routine well, she gets very nervous when she is around groups of people she doesn't know (Tr. at 219-226, 239-246).

Missouri Supplemental Questionnaire

In this August 9, 2010, document plaintiff reported that she has a laptop so that she can use a computer lying down. She is not currently able to drive because she has an expired license (Tr. at 227-229, 247-249).

Function Report - Third Party

On September 5, 2010, plaintiff's fiance, Randy Merriman, Jr., completed a Function Report - Third Party (Tr. at 263-270). He reported that plaintiff cooks dinner while sitting in a chair. It takes her two hours to cook meals and she does this daily. Plaintiff is able to go out alone, she can drive but does so rarely due to pain - "only drives if has no other choice". She shops in stores and on the computer. She shops once a week for about an hour. Plaintiff reads and watches television all the time but has to lie down while doing these things. People come to see plaintiff or she talks on the phone. She goes to the grocery store on a regular basis and does not need anyone to go with her. She has no problems getting along with family, friends, neighbors or others. Her condition does not affect her ability to understand, follow instructions, complete tasks, remember, concentrate, get along with others, or use her hands. She finishes what she starts, she can pay attention for "a while, " she follows written and spoken instructions well, she gets along well with authority figures, she handles changes in routine "ok, " she handles stress "fair." He concluded with the following:

She has been unable to work since her injury and no one will hire her because of her injury an[d] feels like a burden because she can't provide for her children. She needs this to help care for her children, she doesn't get child support.


In July 1999 plaintiff, age 21, was the unrestrained driver of a car that was struck by a train (Tr. at 470). She climbed out of the vehicle and was taken to Liberty Hospital and eventually transferred to Truman Medical Center for care of her spinal injury. Plaintiff had surgery to fuse T12 through L2 (Tr. at 422).

On October 18, 1999, plaintiff saw Dinesh Patel, M.D., for a follow up on her back (Tr. at 442-443). Plaintiff was told to start weaning herself from her back brace. She was using OxyContin (narcotic) for pain. She was told not to use Ibuprofen (non-steroidal anti-inflammatory) at that time because it may decrease bone healing. "The patient was also instructed that smoking cessation would be helpful to her in improving the healing of the bone and posterior fusion and also her left clavicular fracture."

Four years later, on December 5, 2003, x-rays of plaintiff's lumbar spine revealed a fracture of the fusion screw in the body of T12 (Tr. at 419-420). "No abnormal motion at T12 L1 is demonstrated." Plaintiff had satisfactory motion of L3 through S1 on flexion/extension and no motion at the fusion site of T12, L1 and L2.

Two days later, on December 7, 2003, plaintiff saw Jason Datta, M.D., an orthopaedic surgeon (Tr. at 422-423). Plaintiff had begun experiencing pain about two years earlier. "It is about the same and has progressed slightly. She has a few days that are worse than others. She does not currently take anything for the pain full time. She occasionally takes ibuprofen or Naprosyn when it is really bad, and that barely takes some edge off of it." Dr. Datta noted that the pedicle screws in T12 had fractured. "The patient had some endplate changes at T12-L1 mild degenerative changes probably due to slight motion through this segment, which is probably giving her pain." Plaintiff's physical exam was normal except that she could bend forward only about 45E due to pain, and she had mild paraspinous muscle tenderness. "I have discussed with the patient that there is no instability in her spine at this time, that her pain is not significant enough to address with any type of surgery.... I do not believe that she is a candidate for any type of surgical intervention for this, and she has no instabilities noted and no signs of stenosis present. I have discussed with her that this problem is probably going to be lifelong and we need to work on having her good days outweigh her bad days, but eventually, she may develop significant arthritis at this level in the far future." Dr. Datta recommended physical therapy and prescribed Relafen, a non-steroidal anti-inflammatory, as needed for pain.

On September 23, 2004, plaintiff saw Ram Chandra, D.O., complaining of severe low back pain (Tr. at 404, 588). Dr. Chandra ordered plaintiff's surgical records and prescribed Amitriptyline (antidepressant) for her pain.

On October 25, 2004, plaintiff saw Dr. Chandra for a follow up on pain (Tr. at 332, 404, 588). Plaintiff told Dr. Chandra that the "Amitriptyline does help her pain".

On December 29, 2004, plaintiff saw Michael Johnston, RN, for treatment of a urinary tract infection (Tr. at 584).

On February 1, 2005, plaintiff saw Dr. Chandra for medication refills (Tr. at 330, 402, 584). He continued her on Amitriptyline and recommended Trazodone (antidepressant) for thoracic and lumbar pain. He also assessed nicotine addiction. "She wants medication for this, I don't think Wellbutrin would be a good choice since she is already on multiple other antidepressants but possibly she may be a good candidate for Nicotrol inhaler. She is going to check into whether she wants to pay for this or not."

On February 6, 2005, plaintiff had x-rays of her thoracic spine which showed that both pedicle screws of the T12 were fractured and the disk between T12 and L1 was narrow (Tr. at 400-401, 582-583).

On April 5, 2005, plaintiff saw Dr. Chandra and complained of insomnia (Tr. at 399, 581). She did not mention any back pain on this visit. Dr. Chandra prescribed Ambien.

On November 14, 2005, plaintiff had a psychological consultation with Gary Horner, Ph.D. (Tr. at 322-324). Plaintiff reported weighing 130 pounds. She was noted to be well groomed, her general activity level was relaxed, she was cooperative and appeared to talk easily. Her speech was logical and goal directed. Mood and affect were normal to mildly anxious. Attention and concentration were good. Memory for recent and distant events was good. Intellectual functioning was in the broad average range. Judgment and insight were fair. "Social skills in this interview are good. Eye contact is good." No specific nervous habits were noted. Plaintiff denied suicidal thoughts.

"I slowly freak out around people... people make me uneasy". She took amitriptyline for around 9 months for pain. She said as long as she took it every day it worked "it took the edge off". She also took trazodone for 5 months for insomnia and it "worked pretty good".
* * * * *
Regarding her wreck, she was driving alone and went onto an uncontrolled track crossing where the car and train collided. Alcohol was not involved in the accident. She was "pretty much unconscious" for the first three days and remained in the hospital for a total of seven days.... Currently symptoms from the PTSD include being terrified of trains, train tracks, any sound of trains and most any T shaped intersection that could involve a side collision. She is fearful of going fast in a car. She used to be outgoing, but now she would rather stay at home where she feels safest. She hates to go to shopping malls where there are a lot of people. Even smaller stores "I try to get in and out fast". She now mostly socializes with people she knows.
When around other people "I'm constantly watching to see what they're doing, how they stand". This is getting worse over time. "I feel like I have to... my boyfriend says I'm getting paranoid... constantly looking out to see what's going on".

Plaintiff said her mother thought she was just being nosy, but plaintiff tended to agree with her boyfriend that she was paranoid and not nosy. Plaintiff said most of the time she is fine leaving the house. "Her energy level is okay.... Her attention and concentration is good. She has increased irritability due to pain. She has a hobby of reading. She walks and uses weights for regular exercise."

Ms. Lee last worked in 1998. Her ex-husband wanted her to be a stay at home mom and take care of the children. In the current household of six people, she does 80% of the food preparation and 50% of the clean up after meals. She does 50% of housecleaning and laundry. She and her boyfriend share shopping and handling finances.

Dr. Horner found that plaintiff was able to understand and remember detailed and simple instructions. She was able to sustain concentration and persistence in most things (i.e., she could not work for a railroad). She was able to relate socially and she could adapt to changes in her social environment. He assessed post traumatic stress disorder, chronic; social phobia, mild; and dyssomnia not otherwise specified.

On December 6, 2005, plaintiff saw Dr. Chandra for a follow up (Tr. at 329, 399, 581). "She had her Medicaid disability evaluation and her T12 pedicle screws are fractured even worse now. She is going to have to have reconstruction. She is having a lot of thoracic pain." Dr. Chandra assessed T12 pedicle screw fractures and depression/chronic pain. He prescribed Amitriptyline, an antidepressant.

On February 16, 2006, plaintiff saw Dr. Chandra and reported that the Amitriptyline was not helping her back pain[1] (Tr. at 328, 398, 580). Dr. Chandra assessed chronic back pain and prescribed Neurontin.[2]

On February 28, 2006, plaintiff completed her application for disability benefits. This is also her amended alleged onset date.

On March 16, 2006, plaintiff saw Dr. Chandra and reported that the Neurontin was not helping her (Tr. at 328, 398, 580). Dr. Chandra assessed chronic pain secondary to thoracic hardware abnormalities and dislodging. He discontinued Neurontin and prescribed Lyrica.[3]

On March 23, 2006, plaintiff saw Dr. Chandra and reported that Lyrica was not helping her pain (Tr. at 327, 397, 579). Dr. Chandra assessed chronic thoracic pain secondary to a loose screw. He recommended a Toradol[4] shot and he prescribed Toradol three times a day as needed.

On May 25, 2006, plaintiff saw Dr. Chandra for symptoms of a urinary tract infection (Tr. at 397, 579). Dr. Chandra refilled plaintiff's Toradol and Ultram[5] for her back pain.

On June 5, 2006, plaintiff saw Dr. Chandra for a well woman exam (Tr. at 382, 575). He recommended that she be evaluated by a specialist in ...

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