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Brown v. Colvin

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

November 30, 2016

KIM A. BROWN, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          ROBERT E. LARSEN United States Magistrate Judge.

         Plaintiff Kim Brown 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 giving more weight to the opinion of consulting physician Dr. Velez than to the opinions of plaintiff's treating physicians. 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.

         I. BACKGROUND

         On January 22, 2013, plaintiff applied for disability benefits alleging that she had been disabled since November 30, 2009, which she later amended to May 6, 2013 (Tr. at 33). Plaintiff's disability stems from fibromyalgia, seizure disorder, generalized anxiety disorder (“GAD”), posttraumatic stress disorder (“PTSD”), and depression. Plaintiff's applications were denied on June 3, 2013, and June 13, 2013. On June 17, 2014, a hearing was held before an Administrative Law Judge. On August 18, 2014, the ALJ found that plaintiff was not under a “disability” as defined in the Act. On October 27, 2015, 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?
Yes = not disabled.
No = go to next step.
2. Does the claimant have a severe impairment or a combination of impairments which significantly limits his ability to do basic work activities?
No = not disabled.
Yes = go to next step.
3. Does the impairment meet or equal a listed impairment in Appendix 1?
Yes = disabled.
No = go to next step.
4. Does the impairment prevent the claimant from doing past relevant work?
No = not disabled.
Yes = go to next step where burden shifts to Commissioner.
5. Does the impairment prevent the claimant from doing any other work?
Yes = disabled.
No = not disabled.

         IV. THE RECORD

         The record consists of the testimony of plaintiff and vocational expert Theresa Wolford, in addition to documentary evidence admitted at the hearing.


         The record contains the following administrative reports:

         Earnings Record

         The record establishes that plaintiff earned the following income from 1979 through 2014, show in both actual and indexed figures:


Actual Earnings

Indexed Earnings


$ 696.00

$ 2, 449.79



2, 302.25








3, 098.63

8, 215.74


10, 185.25

25, 505.93


4, 320.58

10, 377.47


5, 860.03

13, 669.31


10, 180.77

22, 324.30


9, 903.93

20, 697.85








3, 376.11

6, 254.16


7, 217.86

12, 715.75


9, 832.24

17, 173.82


10, 115.68

17, 207.08


10, 145.17

16, 592.17


14, 659.42

22, 857.27


7, 139.16

10, 517.80


16, 652.43

23, 313.09


12, 812.46

16, 990.36


14, 926.00

18, 755.89


17, 074.24

20, 955.43


22, 352.02

27, 160.52


23, 122.02

27, 425.74


23, 958.56

27, 155.58


23, 731.81

25, 949.09


2, 525.10

2, 639.69


14, 647.77

14, 647.77


20, 580.63

20, 580.63


17, 307.59

17, 307.59








5, 519.39

5, 519.39







(Tr. at 171-172).

         Function Report

         In a Function Report dated February 14, 2013, plaintiff reported that her typical day involves getting up at 8:00 a.m., making coffee, getting dressed. She watches television, listens to the radio, or watches the birds outside her window. At noon she makes a sandwich for lunch and watches television. At 5:00 p.m. she has soup or a sandwich for dinner. She takes a bath with Epsom salt because of her pain. She watches more television and does the assignments her therapist has given her. At 9:00 p.m. she takes a sleeping pill and goes to bed (Tr. at 264).

         Plaintiff wakes up at all hours of the night (Tr. at 265). It is hard for her to get shirts on over her head, she cannot wash her back, and it is difficult for her to blow dry her hair (Tr. at 265). She needs no special reminders for anything. She prepares her own meals daily, but she no longer cooks. Plaintiff is able to dust once a week for 10 minutes, and she can do laundry every other week for 11/2 hours. When plaintiff goes out, she drives and can go out alone. She shops in stores once a month for an hour. Her hobbies include watching television and reading, although she usually has to read things more than once due to her impaired memory (Tr. at 268). Plaintiff spends time with others watching movies or talking on the phone. She does not go any place on a regular basis other than therapy due to her anxiety and depression.

         Plaintiff's impairments affect her ability to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, remember, complete tasks, concentrate, understand, follow instructions and use her hands (Tr. at 269). She can walk 2 blocks before needing to rest for 10 minutes (Tr. at 269). She can pay attention for about 30 minutes.


         Many of plaintiff's medical records predate her alleged onset of disability.

         On August 1, 2012, plaintiff was evaluated by Dennis Handley, M.D., in connection with her application for public assistance (Tr. at 347-351, 357-360). Plaintiff reported having stopped taking all medication a year earlier due to having no insurance and no means of paying for her medicine. She reported having been treated in the past for fibromyalgia, major depression and epilepsy. Plaintiff was smoking 1/2 pack of cigarettes per day. She reported having started smoking at age 13.

         Plaintiff reported that she worked at Booneville Correctional Center for 2 years. She moved to Springfield and worked as a museum assistant for 7 years, then worked as a janitor for a year and a half at Drury College. She was unemployed for 2 years. Recently she worked for 2 days at McDonald's and 2 weeks at K-Mart but could not keep working due to pain and fatigue from fibromyalgia. She worked for a month at Indeeco before being laid off, and she was presently working for Sisters for Assisted Living, working 30 hours a week one week and 46 hours the next. She had been doing this for the past 6 months.

         Plaintiff reported having had a grand mal seizure in 2006 and a possible smaller type seizure as she was driving on another occasion. Plaintiff reported being depressed since 2006 when she lost a good-paying job and started having more problems with fibromyalgia.

         Dr. Handley performed an exam and found that plaintiff is 5' 5” tall and weighed 101.5 pounds. Plaintiff's physical exam was normal. Dr. Handley assessed “history consistent with fibromyalgia;” major depression, mild, recurrent; and history of isolated grand-mal seizure several years ago. Dr. Handley recommended that plaintiff get back on her medications and get a colonoscopy. “She does not feel that she can afford any of these measures at present.” Dr. Handley completed the form finding that plaintiff's “complaints of chronic fatigue, sore & painful muscles, are felt by her [to] prevent her from finding and keeping gainful employment.” (Tr. at 350). Dr. Handley checked the box indicating that plaintiff does not have a mental and/or physical disability preventing her from engaging in employment. “The large majority of patients with fibromyalgia should be able to continue working.”

         On August 13, 2012, plaintiff saw Marsha Kempf, a nurse practitioner, for an evaluation in connection with her application for public assistance (Tr. at 342-345). The report was signed by Robert Frick, M.D. Plaintiff drove herself to the appointment. Plaintiff said that her physical problems cause her to be depressed. She rated her mood a 5 out of 10. She said she was tired all the time. She reported feeling hopeless with some irritability. Lack of finances was keeping her from doing a lot. Plaintiff said that in the past, her excess worrying has caused vomiting and diarrhea. Although plaintiff reported having been the victim of a crime at age 15, she denied bad dreams, flashbacks, or intrusive thoughts. Plaintiff said most of her fibromyalgia pain is in her left foot. Plaintiff reported that she is a certified diamond cutter. She had all of her own equipment for diamond cutting, but a tornado came through Springfield and destroyed all of her equipment. She had been working in assisted living taking care of four girls, but she quit the week before due to stress.

         A mental status exam was performed. Plaintiff was described as guarded. “Very difficult to get answers from her about mental health. Irritability is present and she has a low threshold for stress as seen by her most recent job of 4 weeks - quit ‘b/c it was too stressful.'” She was assessed with major depressive disorder and generalized anxiety disorder with a GAF of 50.[1] “She does need counseling and medications to treat generalized anxiety disorder and depression. She denies PTSD symptoms but this may be more of a problem than she identifies. If she participates in treatment she should have improved functioning in 6-12 months.”

         On September 25, 2012, plaintiff was seen at Cooper County Public Health to establish care (Tr. at 356). She said she wanted to get back on her medications and had been off of them for a year. She reported all-over pain, especially in her feet. She continued to smoke but reportedly was trying to quit. She said she was due for a colonoscopy; that she had precancerous colon polyps in 2009. Plaintiff reported a history of fibromyalgia, depression, generalized anxiety disorder, and seizure, although her last seizure was a few years earlier.

         On October 3, 2012, plaintiff had a colonoscopy which was normal (Tr. at 361).

         On December 5, 2012, plaintiff saw Mona Brownfield, M.D., at Cooper County Public Health to initiate care (Tr. at 355). Plaintiff said her fibromyalgia had been “pretty bad recently.” She reported pain, feeling achy all over, and poor sleep. Plaintiff reported the Elavil[2] 25 mg does not help; she increased that to 50 mg a day on her own without much relief. She reported high anxiety for which she was taking Wellbutrin XR[3]but it was not helping. Plaintiff wanted to be seen at Burrell Behavioral Health. Plaintiff reported her pain a 6 out of 10. On exam she was noted to have clear lungs and a normal heart rate. No further examination was performed. Dr. Brownfield assessed fibromyalgia and prescribed Cymbalta.[4] For insomnia, Dr Brownfield stopped plaintiff's Elavil and prescribed Trazodone.[5] She also discussed with plaintiff the need to stop drinking coffee until 5:00 in the evening and other sleep hygiene habits. She referred plaintiff to Burrell for anxiety and indicated that the Cymbalta should also help with that.

         On December 10, 2012, plaintiff was evaluated at Burrell Behavioral Health by Sandra Lillard, a social worker (Tr. at 325-332). Plaintiff reported a long history of depression and generalized anxiety disorder. Plaintiff reported frequent crying, agitation, and fatigue. She reported struggling with sleep but said Trazodone was helping and that she was sleeping “plenty” but she still felt tired all the time. She reported trouble concentrating and said she forgets things easily. She worried primarily about finances and her relationship. Her current mental health treatment consisted of her primary care physician prescribing antidepressants. Plaintiff had never been hospitalized for mental health treatment. She had been on medication only briefly; her previously mental health treatment consisted only of therapy which was helpful but did not resolve her symptoms. Plaintiff began having seizures in 2006 and there “is no known reason as to why.” She said she was diagnosed with fibromyalgia in 2009. She had “cancerous colon polyps” five years ago but said she was currently cancer free. She was smoking but reportedly trying to quit. Plaintiff was covered by Medicaid. She denied financial problems even though she indicated it was one of her major anxieties. Plaintiff was employed part time taking care of adults with developmental disabilities. She was living with her significant other.

         Plaintiff's diagnoses based on this interview were major depressive disorder and generalized anxiety disorder with a GAF of 49 (see footnote 1, page 9).

         On January 7, 2013, plaintiff saw Mona Brownfield, M.D., for a follow up on fibromyalgia (Tr. at 354). Plaintiff's Trazodone was helping sometimes. She rated her pain a 5 out of 10. No physical exam was performed. Dr. Brownfield increased plaintiff's Cymbalta from 20 mg once a day to 20 mg twice a day. She increased the Trazodone from 100 mg at night to 150 mg at night. Plaintiff was told to seek counseling and to return in two months. Also on this visit, Dr. Brownfield completed a Verification of Disability in connection with plaintiff's application for housing assistance (Tr. at 335-337). She checked the “yes” box indicating that plaintiff has a disability, as defined in 42 U.S.C. § 423, which means an inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months. She also checked the “yes” box indicating that plaintiff has a physical, mental or emotional impairment that is expected to be a long-continued and indefinite duration, substantially impedes her ability to live independently, and is of such a nature that the ability to live independently could be improved by more suitable housing conditions.

         On March 6, 2013, plaintiff saw Mona Brownfield, M.D., for a follow up (Tr. at 461-463). Plaintiff weighed 108 pounds. She rated her pain a 6 out of 10 -- she complained of pain all over and muscle spasms in her feet. Baclofen (muscle relaxer) was not helping, “wants to try Flexeril.” She said the Cymbalta had not helped. “Complaints of joint pain, limited range of motion, muscle aches, stiffness.” Dr. Brownfield observed that plaintiff appeared well and comfortable. Her physical exam consisted of listening to plaintiff's heart and lungs. She assessed primary fibromyalgia syndrome. Dr. Brownfield prescribed Flexeril (muscle relaxer), discontinued Baclofen, and increased the Cymbalta. She recommended daily exercise, especially swimming, but at least 30 minutes of exercise per day five days per week.

         On March 22, 2013, Amanda Crabtree, a counselor with a masters degree in mental health counseling, wrote a letter to Disability Determinations (Tr. at 375). Ms. Crabtree had been seeing plaintiff in therapy for the past two months.

[Plaintiff's] therapy and my clinical impressions have influenced me to assess and diagnose her with PTSD and Major Depressive Disorder - Recurrent episodes. . . . The client experiences depressed mood most of the day nearly every day as well as sleep issues with insomnia at times and hypersomnia at other times. She suffers from a diminished ability to think or concentrate at times and has issues with indecisiveness, fatigue or loss of energy, and marked diminished pleasure or interest in almost all activities for most of the day nearly every day.
From the client's perspective it has been determined that she has experienced some very traumatic events from childhood to early adulthood that have not been processed or completely worked through which can lead to a symptomatic response in the form of depression. These mental health issues currently cause the client to experience some impairment with memory, sustaining concentration and social interactions. . . .
The client is currently attending weekly therapy sessions as well as family and couples therapy as needed and she is taking the following medications/dosages as directed by her doctor: Gabapentin 300 mg three times per day for seizures, Buproprion 150 mg twice per day, Cymbalta 30 mg per day for depression, Cyclobenzapr[ine][6] 10 mg per day and Trazodone 150 mg at bedtime. At this present time she is only able to work part time due to the chronic pain that she experiences on a daily basis and impairment in the social and occupational areas of her life related to the previously described mental illnesses within her mental health diagnosis.

         On April 3, 2013, plaintiff saw Mona Brownfield, M.D., for a follow up (Tr. at 365-368). Plaintiff rated her pain a 6 out of 10; her pain was all over and she was having muscle spasms in her feet. She reported that Baclofen (muscle relaxer) 10 mg three times a day was not helping, and she said she wanted to try Flexeril (muscle relaxer). She had not noticed any improvement on Cymbalta 20 mg twice a day. Plaintiff complained of fatigue, joint pain, limited range of motion, muscle aches and stiffness. Dr. Brownfield described plaintiff as “well appearing, comfortable.” Her physical exam was limited to listening to plaintiff's heart and lungs, both of which were normal. She assessed fibromyalgia and prescribed Flexeril. She also prescribed Wellbutrin SR 150 mg twice a day, Cymbalta 30 mg twice a day, and Trazodone 150 mg at bedtime (all antidepressants); Piroxicam (non-steroidal anti-inflammatory), 20 mg once a day; and Gabapentin (treats nerve pain), 300 mg three times a day. She told plaintiff to exercise daily -- “swimming is best.” Plaintiff was told to exercise 30 minutes a day, five days a week; get adequate sleep; and return in two months.

         On April 15, 2013, plaintiff saw Mark Schmitz after having been referred by Disability Determinations (Tr. at 377-381). Mr. Schmitz, who has a masters degree is psychology, met with plaintiff for 50 minutes and reviewed her records from Burrell Behavioral Health, the Cooper County Rural Health Clinic, and Bonnie Riley Counseling and Consulting. Plaintiff drove herself to the appointment and arrived 15 minutes early. She was dressed appropriately and her hygiene was well maintained. She was observed to walk with a limp, but otherwise gait and posture were normal.

         Plaintiff said she graduated from high school with a D average. In 1992 or 1993 she completed training to be a certified diamond cutter. “She continued by stating that she then attempted to work as a diamond cutter, but stated it was immediately clear she was unable to do the job adequately due to problems with pain and coordination.” Plaintiff discussed her past employment history and indicated that she was currently working from 10:00 p.m. Friday to 4:00 p.m. on Saturday as a residential worker at Unlimited Opportunities, a supportive living facility. Plaintiff had been in a relationship for a number of years but had recently moved out of the home they shared and moved into her own apartment in a facility for disabled individuals and/or older adults.

         Mr. Schmitz performed a mental status exam. He noted that plaintiff appeared to be depressed, worried, and on the verge of tears throughout the examination.

The results of the current examination indicate that she is suffering from a major depressive disorder, but there does not appear to be any psychotic features. Her depression is characterized by sad mood, frequent tearfulness, sleep disturbance, increased irritability, poor concentration, loss of interest, and social isolation. Additionally, she appears to meet criteria for a diagnosis of generalized anxiety disorder.
With regard to the referral questions, Ms. Brown appears capable of understanding and remembering instructions. Her ability to sustain concentration and persistence in tasks, however, is likely to be moderately to significantly impaired as a result of her depression and anxiety. Her ability to interact in a socially appropriate and adaptable manner also appears to be moderately impaired due to her emotional difficulties. Although she is currently working part-time, it is doubtful that she would be able to maintain full-time employment. Finally, if disability benefits are allowed, Ms. Brown appears capable of managing any resulting funds in her own behalf.

         Mr. Schmitz assessed major depressive disorder, recurrent, severe without psychotic features and generalized anxiety disorder with a GAF of 43 (see footnote 1, page 9).

         On April 24, 2013, Mona Brownfield, M.D., completed a one-page questionnaire from Disability Determinations (Tr. at 383). She indicated that plaintiff would not be able to sustain an 8-hour/40-hour-per-week workweek; she is not able to stand or walk for 6 hours per day with breaks; she is able to sit for 6 hours per workday; and she could frequently lift less than 10 pounds.

         May 6, 2013, is plaintiff's amended alleged onset date. On that day she saw Mona Brownfield, M.D., for a follow up (Tr. at 464-465). Plaintiff weighed 117 pounds. She rated her pain a 7 out of 10. Plaintiff continued to smoke. Plaintiff said she could not tell any difference from the changes in her medication. Her legs were hurting. Dr. Brownfield observed that plaintiff was well appearing and “overweight.” She did not perform any physical exam. She referred plaintiff to a rheumatologist.

         On May 15, 2013, plaintiff was seen by Deanna Davenport, APRN, in the Rheumatology IM Clinic after having been referred by Dr. Brownfield (Tr. at 389-390, 447-451). Plaintiff weighed 115 pounds and reported having lost a lot of weight a few years earlier but had recently gained 5 pounds. Plaintiff reported having been diagnosed with fibromyalgia in 2006. She reported chronic daily pain through her neck, shoulders and back. She said her pain was worse with cold, weather changes, and physical activity. Her feet were very painful. She described the flare ups of pain as severe, involving the entire foot, lasting for 1 to 2 days, and happening every 2 to 3 months. Her feet often feel tingly or prickly. Plaintiff reported Trazodone does not help her sleep; she still wakes multiple times per night. Gabapentin (treats nerve pain), which she said she was taking for seizure disorder, was not helping her pain. She said Cymbalta (antidepressant) was providing no benefit. “She has chronic depression/anxiety and PTSD, denies meds have ever been helpful.” Plaintiff said she was seeing a counselor once a week[7] but “only has a few sessions left. She is diffusely tender to touch.”

         On exam plaintiff's range of motion was normal in her hands, wrists, elbows, shoulders, back, hips, knees, ankles, and feet. She was diffusely tender with 16 out of 18 fibromyalgia tender points. Ms. Davenport assessed the following:

1. Fibromyalgia. Based on her current symptoms, I don't doubt this diagnosis, but to formally say this, we have to rule out any mimics. Given her symptoms, should rule out Sjogren's syndrome, rheumatoid arthritis. Also any ...

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