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Parker v. Colvin

United States District Court, E.D. Missouri, Eastern Division

February 2, 2015

MARY PARKER, Claimant,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER

TERRY I. ADELMAN, Magistrate Judge.

This action is before the Court for judicial review pursuant to 42 U.S.C. §§ 405(g) and 1631 (3) of the Social Security Act ("the Act"), of the final decision of the Commissioner of Social Security ("Commissioner") concluding that Claimant Mary Parker was not entitled to Supplemental Security Income ("SSI") benefits under Title XVI of the Act, 42 U.S.C. §§ 1381, et seq. Claimant has filed a Brief in Support of her Complaint and the Commissioner has filed a Brief in Support of the Answer. For the reasons set forth below, the decision of the Commissioner shall be affirmed.

I. Procedural History

Claimant, who was born on November 2, 1963, filed her application for a SSI benefits under Title XVI of the Act on November 23, 2010, alleging an onset date of December 6, 2010, [1] with disability due to chronic back and neck pain resulting from multiple auto accidents, recurrent headaches, hypertension, and depression. (Tr. 12, 142-47, 158, 180.) On March 3, 2011, the Commissioner denied Claimant's application at the administrative level.[2] Claimant then timely filed a written request for a hearing before an Administrative Law Judge ("ALJ"). At a June 5, 2012 hearing Claimant and a vocational expert (VE) gave testimony.

On September 6, 2012, the ALJ issued her decision finding that Claimant was not disabled within the meaning of the Act. (Tr. 12-23.) The ALJ found that Claimant suffered from the severe impairments of migraine and depression but concluded that she did not have an impairment or combination of impairments listed in or medically equal to one contained in 20 C.F.R. part 404, subpart P, appendix 1. (Tr. 14, 16-17.) The ALJ also determined that Claimant retained the Residual Functional Capacity (RFC) to perform a range of unskilled, light work. The ALJ further concluded that Claimant had no past relevant work, but concluded on the basis of VE testimony that her impairments would not preclude her from performing her past relevant work as a cashier and that such positions exist in significant numbers in the national economy. (Tr. 18, 22-23.) On August 29, 2013, the Appeals Council denied Claimant's request for review (Tr. 1-4). Thus, the ALJ's decision stands as the "final decision" of the Commissioner subject to review by this Court pursuant to 42 U.S.C. § 1383(c)(3).

On appeal Claimant argues that the ALJ improperly discounted Claimant's testimony concerning her subjective complaints, failed to cite to "some" medical evidence to support the RFC determination and to give substantial weight to the opinions of an examining physician and a treating physician. In addition, Claimant contends that the hypothetical question posed to the VE failed accurately to capture the consequences of Claimant's impairments.

In response, the Commissioner asserts that the ALJ properly evaluated Claimant's credibility and included all credible limitations in her RFC determination, that the ALJ did not err in failing to give significant weight to the opinions of an examining physician and a treating physician, and that the hypothetical question posed accurately reflected Claimant's RFC as determined by the ALJ.

II. Work History, Function and Disability Reports and Application Forms

In the Work History Report she completed on May 10, 2010, Claimant indicated that she had gone to school in 2003 to become a nail technician but dropped out due to her "condition." Thereafter, she had worked for brief stints bussing tables and as a cashier. No work history was reported for the period after June, 2008. (Tr. 220)

Claimant's Function and Disability reports reflected that she could not stay on her feet for more than 30 minutes, could not get in and out of a bath tub or go up and down stairs. Claimant reported that she prepared a sandwich or frozen meal twice a day but was unable to stand long enough to do any other cooking. Claimant also stated that she did some house work and laundry once a week but had to sit to rest frequently, left her home very little, did not drive, and shopped for groceries twice a month. Claimant further indicated that did not have a savings or checking account but paid her bills and could make change. She stated that she could walk about ten minutes without a rest, and lift ten pounds, but that squatting, bending, standing, reaching and walking were all difficult for her due to her back and neck pain. (Tr. 159-167, 177-213.) The Report included Claimant's medication record, dated March 13, 2012, lists the following medications: Cyclobenzaprine, Famotidine (Pepcid), "But/APAP, " Buspirone, Pravastatin, Tramadol, Metoprolol, and extra strength acetaminophen. (Tr. 219.)

III. Medical Records

On April 28, 2004, Claimant was seen by Dr. Julio Iglesias, M.D. who noted that Claimant had been trying to get appointments at the neurology and pain management clinics but was having difficulty affording her care and medicine. (Tr. 241.) On September 9, 2004, Claimant saw Dr. Iglesias for complaints of lower back pain. Dr. Iglesias prescribed Soma, Xanax, and Lortab. (Tr. 238.) At a November 8, 2004 visit with Dr. Iglesias, Claimant complained of headache and back pain. (Tr. 236.) Physical examination revealed spasms in the cervical spine and in the paraspinal muscles. ( Id. ) Magnetic resonance images (MRIs) taken December 7, 2004, showed that for T11 through the 3rd sacral segment "vertebral body height and alignment" were "well-maintained without significant spondylolisthesis or compression deformity." (Tr. 249.) The radiologist noted that the visualized posterior fossa and cranio-cervical junction were unremarkable. (Tr. 248.) The T12-L1 level of the spinal chord showed mild degenerative disease without stenosis. At L1-L3-4 levels no stenosis was found. ( Id. ) At the L4-5 level there was minimal degenerative disease and minimal flattening of the dural sac but no significant spinal stenosis. ( Id. ) At L5-S1 the radiologist's impression was of cervical spondylosis, minimal degenerative changes without spinal canal or foraminal stenosis and no exiting nerve root impingement. ( Id. ) An MRI of the brain taken on the same date corroborated the findings of cervical spondylosis most notably at the C 6-7 level, minimal degenerative changes without spinal canal or foraminal stenosis and no exiting nerve root impingement. In addition, little or no cervical spondylosis was evident at C2 through C6 and spinal and foraminal stenosis were absent. (Tr. 250-252.) Despite the minimal degenerative/osteophyte disease noted, the radiologist found no convincing evidence for spinal cord impingement. (Tr. 250.)

At a December 22, 2004 appointment with Dr. Iglesias, Claimant complained of "the shakes" and migraine headaches. At that time Claimant was taking Soma, Zantac and Maxalt. (Tr. 234.) At her February 3, 2005 visit with Dr. Iglesias, Claimant again complained of migraine headache. She was prescribed Maxalt, Xanax and Trazodone. (Tr. 231.)

The materials before the Court do not include any medical records for the period from February 4, 2005 through April, 18, 2010.

On April 19, 2010, Claimant was seen in the emergency room at St. Mary's Health Center. She complained of seven hours of severe epigastric pain radiating to her back. The medical history set forth in these notes mentions back injuries from previous motor vehicle accidents and provides that Claimant was "to start on pain management this week." (Tr. 280.) There is no reference to chronic back pain in these notes. Claimant's medications were reported as Lisinopril, Famotidine and Darvocet. (Tr. 273-306.)

On April 27, 2010, Claimant was seen by Jonathan Hayes, M.D. at St. Mary's Health Center Emergency Room. Her chief complaint was that she had slipped and fallen on the steps in her home. She reported that she suffered chronic back pain and had an appointment "to see pain management soon." (Tr. 263.) Dr. Hayes noted pain originating from the soft tissues around the spine and advised Claimant that the x ray of her coccyx did not definitively show a fracture, although fracture was possible. (Tr. 262-66.) At the April 27, 2010 visit Claimant's medications were recorded as Percocet, Lisinopril, Darvocet and Vicodin. (Tr. 268)

On May 4, 2010, Claimant was seen by Dr. Bryan Steele, M.D. at Southern Illinois Health Center. (Tr. 310.) The notes describe Claimant as "status post fall" with reported coccygeal fracture, chronic lower back pain for which she took Darvocet and Celebrex, and well-controlled hypertension. The notes again reflect that Claimant was to see "chronic pain management tomorrow." ( Id. )

On May 5, 2010, Claimant presented for pain management assistance at St. Anthony's Medical Center in Alton, Illinois complaining of chronic bilateral lower back, extremity, and posterior cervical pain with a rating of 10/10. (Tr. 329.) Claimant also complained of headache and neck pain resulting from multiple motor vehicle accidents dating from 2003. ( Id. )

Physical examination showed that straight leg raising was absent; Revel's signs were questionable (positive on the left, absent on the right); muscle strength of 5/5 throughout the upper and lower extremities and point tenderness over the posterior cervical soft tissues. In addition Claimant described excruciating pain due to a recently diagnosed sacral fracture. (Tr. 331.) The physician, Dr. John Zabrowski, M.D., assessed nonspecific lower back and extremity pain and noted that due to absence of straight leg raise, the pain was not clearly linked to spinal stenotic or disc protrusion. He posited possible sacroiliitis and pain related to recently diagnosed sacral injury. ( Id. ) A five view x-ray of the cervical spine and a MRI of the lumbar spine were ordered. In addition, Claimant was given a prescription for Tramadol and directed to take Tylenol. ( Id. ).

A May 18, 2010 x-ray of the cervical spine revealed no evidence of cervical spine disease. (Tr. 327.) An MRI of the lumbar spine taken on the same date also revealed no evidence of disease of the lumbar spine. (Tr. 328).

Dr. Steele, Claimant's primary care physician, completed a physical RFC questionnaire on or about December 8, 2010.[3] (Tr. 428-432.) At that time Dr. Steele, who had not seen Claimant for almost six months, indicated that he was unsure whether Claimant was a malingerer and noted that emotional factors such as anxiety affected the perceived severity of Claimant's symptoms and functional limitations. (Tr. 428.) Dr. Steele also questioned whether Claimant's physical and emotional impairments were consistent with her reported symptoms and functional limitations. (Tr. 429.) Finally, Dr. Steele opined that although Claimant's back pain occasionally interfered with her attention and concentration, Claimant was capable of performing low stress jobs. ( Id. )

With respect to Claimant's limitations, Dr. Steele stated that Claimant could walk less than one block, could sit no more than 20 minutes without getting up to walk around and stand no more than 30 minutes at a time. ( Id. ) He also stated that Claimant's ability to stand and walk was limited to less than a total of two hours in an eight hour workday, and that she could sit for no more than two hours in an eight workday. ( Id. ) Dr. Steele asserted that Claimant would need a job that permitted her periods to walk around during the work day and allowed her four unscheduled breaks of less than five to ten minutes in an eight hour day. He also stated that Claimant needed to be able to shift from sitting, standing, or walking at will, could only lift less than ten pounds. if required to lift frequently, occasionally lift ten pounds, rarely lift 20 pounds and never lift 50 pounds. ( Id. ) Dr. Steele found that Claimant had no significant limitations with respect to reaching, handling or fingering. ( Id. ) Dr. Steele also advised that Claimant should never climb ladders, rarely crouch or squat, and only occasionally twist, stoop, or bend and climb stairs. ( Id. ) Finally, Dr. Steele opined that if Claimant were employed she would miss about 3 days of work per month due to her impairments. (Tr. 431)

On January 29, 2011, a licensed psychologist, Nancy Higgins, PhD., examined Claimant and performed a consultative evaluation. (Tr. 337-343.) Dr. Higgins concluded that that Claimant suffered from recurrent major depressive disorder, severe but without psychotic features; an anxiety disorder not otherwise specified; a specific phobia, situational type, of bridges and a learning disorder, not otherwise specified. Dr. Higgins also found that Claimant complained of chronic neck and back pain, chronic fatigue, and exhibited hypertension, migraine headaches, obesity, gastroesophageal reflux disease (GERD), and an overactive bladder.

Dr. Higgins assigned Claimant an axis V GAF score of 54, [4] indicating moderate limitations and opined that she had an adequate ability to understand and remember the instructions necessary to participate in the interview, but that at times she also had cognitive difficulties in understanding those instructions and that it had been necessary to repeat the instructions for one of tasks. (Tr. 342-343.) Dr. Higgins also noted that as a result of her complaints of pain, Claimant had difficulty with concentration, and that Claimant would likely not have the ability to persist at a task for any significant length of time. ( Id. ) Dr. Higgins concluded that Claimant's ability to sustain concentration and persistence in tasks was variable, as was her ability to understand and remember instructions. Finally, she opined that Claimant's ability to interact socially and adapt to her environment was intact. ( Id. )

During a February 23, 2011 routine visit Dr. Steele diagnosed Claimant with chronic back pain and anxiety. (Tr. 360.)

Following Dr. Higgins' consultative evaluation, a state agency medical consultant reviewed the medical records. (Tr. 21, 344-54, 367-69.) Marsha Toll, PsyD. a licensed psychologist and a non-examining State Disability Determination Service Psychologist, completed a mental RFC questionnaire for Claimant on March 1, 2011. (Tr. 367-69.) Dr. Toll found Claimant moderately limited in her ability to: understand or remember detailed instructions, carry out detailed instructions, maintain attention and concentration for extended periods, perform activities within a schedule, maintain regular attendance, be punctual within customary tolerances, sustain an ordinary routine without special supervision, and travel to unfamiliar places or use public transportation. (Tr. 367-368.) Dr. Toll concluded that Claimant had the ability to understand simple one or two-step instructions and to persist at simple tasks. (Tr. 369.)

On the same date, Dr. Toll also completed a psychiatric review technique form stating that Claimant had affective and anxiety related disorders. (Tr. 344-355.) Specifically, Dr. Toll found that Claimant's activities of daily living and social functioning were mildly restricted and that she had a moderate degree of difficulty with concentration, persistence, and pace and no repeated episodes of decompensation of ...


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