United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
E. JACKSON, UNITED STATES DISTRICT JUDGE
matter is before the Court for review of an adverse ruling by
the Social Security Administration.
March 29, 2012, plaintiff Cindy Westall protectively filed an
application for supplemental security income with an alleged
onset date of August 1, 2010. (Tr. 168-75). After
plaintiff's applications were denied on initial
consideration (Tr.72- 76), she requested a hearing from an
Administrative Law Judge (ALJ). (Tr.87;
and counsel appeared for a hearing on June 3, 2014. (Tr.
164). The ALJ issued a decision denying plaintiff's
application on July 16, 2014. (Tr. 10-27). The Appeals
Council denied plaintiff's request for review on November
18, 2015. (Tr. 1-5). Accordingly, the ALJ's decision
stands as the Commissioner's final decision.
Evidence Before the ALJ
Disability Application Documents
undated Disability Report (Tr. 202-10), plaintiff listed her
disabling conditions as depression, back pain, gout,
emphysema, and numb feet. An updated report submitted on July
11, 2012 indicated worsening foot pain and breathing
difficulties. (Tr. 254-58). Plaintiff reported that she
stopped working on August 1, 2010, when she was laid off.
However, she states that her health conditions as of August
1, 2010, were sufficiently severe to prevent her from
working. Plaintiff's employment history included work as
a cashier, a desk clerk at a hotel, a home health aide, and a
laundry worker. (Tr. 204-05). To treat her various health
conditions, doctors prescribed various medications for
emphysema and gout, Ambien for sleeping,  Effexor for
depression,  Xanax for anxiety and depression,
Vicodin for pain. (Tr. 206). In her updated disability
report dated April 30, 2012, plaintiff noted additional
prescriptions for Percocet,  Morphine, and
Mobic. (Tr. 252).
Function Report dated April 26, 2012, (Tr. 231-38), plaintiff
stated that she lived in a house with her immediate family.
In response to a question about her daily activities,
plaintiff claimed that she generally started the day by
waking her teenage children at about 6:00 AM. While the
children get ready for school she takes her medications and
lay down in bed with a heating pad watching television. She
reported that back pain interfered with her ability to
complete most chores. Her children took care of the pets, did
the dishes and yard work, cleaned the home, and cared for
themselves. Plaintiff stated that she starts the washing
machine, but the children perform the rest of the laundry
tasks. She did not prepare breakfast or lunch, because the
children ate these meals at school. In the evenings and on
weekends, she prepared frozen foods or sandwiches, as
difficulty with bending and standing for long periods of time
inhibited her ability to use the stovetop for cooking.
reported that her capacity to do everyday tasks became
difficult because of back and foot pain, muscle spasms, and
difficulty breathing. Additionally, plaintiff's
depression led to sleep issues. She could, however, go out
alone to retrieve mail, drive, and shop for groceries or
personal items about once a month. Moreover, she could pay
bills, count change, handle a savings account, and use a
checkbook or money orders. Her hobbies included watching
television and, on occasion, crotchet. She had no problems
with her family but had difficulty getting along with
neighbors and others. Plaintiff estimated that she spent
about ninety percent of her time at home. But she did not
need to be accompanied when she went out. Plaintiff stated
that she experienced difficulties lifting, squatting,
bending, standing, reaching, walking, sitting, kneeling,
climbing stairs, completing tasks, concentration, and getting
along with others. Furthermore, she could not walk farther
than one block in hot or cold temperatures without resting.
If she suffered back spasms or breathing difficulties, then
she had to rest for several hours before resuming walking.
Plaintiff could pay attention for several hours at a time but
there were times when she was unable to finish a task,
conversation, a movie, or a book that she had started. She
was able to follow instructions, such as a recipe, but she
preferred to do things her way “and not the way someone
else wants it done.” (Tr. 236).
reported that she respects authority figures, such as police
officers, but if she believes she or her children are
“in the right” she will “go to the
extreme” if necessary. (Tr. 237). Plaintiff also
reported that she struggles with anger issues. She was fired
from her job as a cashier in a tobacco store because she
checked for identification too often and argued with
customers. With regard to her ability to handle stress, she
stated that she tended to hold in tension and isolate
herself, which resulted in explosive behaviors and loss of
temper. Finally, plaintiff added that she had struggled with
grief since the death of her father in 2008.
third-party Function Report completed by plaintiff's
husband is consistent with plaintiff's own report,
although he described her emotional condition as
“bipolar.” (Tr. 222-29). Additionally, in an
April 2012 supplemental report, plaintiff indicated that she
checks her email in the evenings for about thirty minutes.
Work History Report plaintiff described her prior work
experience. (Tr. 240-47). From November 2009 to July 2010,
plaintiff was an in-home healthcare worker. In that position
she cooked, cleaned, and did the shopping for patients. (Tr.
240). Plaintiff alleged that foot swelling interfered with
her ability to perform these tasks, which required periodic
walking, standing, and sitting. Prior to her home healthcare
work, plaintiff worked as a cashier in a convenience store.
That job required periodic walking, standing, and sitting for
hours. (Tr. 242). Her prior positions as a front desk clerk
at a hotel, a nursing or medical aid, and as a cashier at a
liquor and department store involved many of the same duties
and conditions. (Tr. 240-47). Her work at a nursing home and
a residential facility, which took place “years ago,
” involved more physical labor because she had to
operate Hoyer lifts and help to move patients. (Tr. 244).
Testimony at Hearing
testified that she quit school after the ninth grade but
later completed Certified Nursing Aide training. (Tr. 38).
She further recounted that she last worked in 2010 as a home
health aide, and prior to that she worked for a few months as
a cashier, a hotel desk clerk, and a laundry worker. When
asked about her medication regimen, plaintiff responded that
each day she took fifteen milligrams of morphine,
“Percocet 10 325's” three times,
Remeron in the morning and at night, 15
milligrams of levothryoxine, an Albuterol inhaler and
nebulizer, a nebulizer she could not recall, Mobic, Claritin,
and a Spiriva inhaler. (Tr. 38-39). She stated that the
medications sometimes made her drowsy.
testified that she was unable to walk farther than a half a
block without running out of breath. (Tr. 39). She also had
back spasms after sitting for longer than fifteen or twenty
minutes. Plaintiff believed she could lift a gallon of milk
from the floor to the counter, but it could be difficult for
her to lift two gallons due to back strain.
stated that she lives with her daughter in a two-story home.
(Tr. 40). Her daughter did most of the chores around the
home, including washing the dishes. Plaintiff told the ALJ
that a friend takes her to the grocery store about once a
testimony about her typical day mirrors the statements she
made in the April 26, 2012 Function Report. (Tr. 41).
Plaintiff testified that she was able to dress and bathe
herself and to help her daughter prepare dinner. According to
her testimony, plaintiff often spent most of the day in bed
watching television. At night, she took a sleeping aid
(Ambien) but she only slept for four or five hours.
Plaintiff's doctors last adjusted her prescriptions for
depression and anxiety several months prior to the hearing.
asked vocational expert John McGowan, to address
plaintiff's vocational history and identify the
exertional levels of her past work. (Tr. 43-48). McGowan
testified that given plaintiff's age, education, and work
experience, in addition to her physical limitations, she
would not be able to perform her prior work. (Tr. 45). He
did, however, identify jobs in the national economy that
could be performed by an individual with plaintiff's
limitations. (Tr. 46). Specifically, he mentioned sedentary,
unskilled, direct entry positions or otherwise stated,
routine assembly jobs. He noted that Missouri had 794
positions for a final assembler of optical goods and 216
positions for hand packaging and sealing of pharmaceutical
supplies. (Tr. 46). The ALJ then presented the hypothetical
of a person with the same physical limitations but also with
a need to take routine breaks, resulting in a fifteen percent
loss in daytime work hours. (Tr. 46). The expert concluded
that given the corresponding reduction in production, such a
person would not be employable. (Tr. 46-47). Plaintiff's
counsel then inquired whether numbness in the bilateral
extremities might affect one's ability to work in the
aforementioned positions. McGowan said such numbness would
preclude working in those positions. Also in response to
counsel's questioning, McGowan testified that there would
not be significant social interaction in those positions.
Educational and Medical Records
records show that plaintiff consistently struggled with her
grades in her elementary school years. (Tr. 266-70). When
plaintiff was in the sixth grade, her Criterion Reference
Tests demonstrated “significant weaknesses” in
reading and math; she scored in the 18th
percentile. (Tr. 281). According to a social and behavior
assessment, plaintiff did not interact well with her peers
and she had become loud and threatening on a number of
occasions. (Tr. 281). That assessment also remarked that
plaintiff exhibited disrespect toward authority figures. (Tr.
281). When plaintiff was in middle school, the Division of
Family Services placed her in Park Central Hospital. (Tr.
Individualized Education Program plan from plaintiff's
seventh grade year (May 1986) illustrated that she
antagonized her peers and disrupted the classroom. Often,
plaintiff did not complete her work. (Tr. 276). She received
failing scores in all categories on a locally-administered
standardized exam. (Tr. 271). By the 1986- 87 school year,
she was spending about 86 percent of her time in special
education programs. (Tr. 284). In December 1986 the school
suspended plaintiff for ten days due to a serious temper
outburst. (Tr. 284). And in January 1987, the school district
placed plaintiff in a behavior disorders program. (Tr. 275).
medical records from the onset of her disability, in August
2010, to June 2014 are extensive. Although the Court has
considered the entire record, the analysis of records that do
not concern plaintiff's mental conditions is condensed.
August 7, 2010, plaintiff underwent a psychological
evaluation by Thomas J. Spencer, Psy. D. (Tr. 326-30). The
evaluation was conducted for the purpose of determining
Medicaid eligibility. (Tr. 326). During that consultation,
plaintiff primarily complained of “emphysema, ”
inability to afford her medications, and “all kinds of
problems.” (Tr. 326). Plaintiff told Dr. Spencer that
doctors previously diagnosed her with bipolar disorder and
posttraumatic stress disorder, and that she took Xanax for
anxiety. (Tr. 326). She described her mood as
“alright” but asserted that her temper flared up
periodically. (Tr. 326). Plaintiff also reported that she had
recently begun having trouble sleeping, “but this is
not typically an issue.” (Tr. 326-27). Plaintiff stated
that she became anxious and depressed or
“overwhelmed” when she thought of her father or
grandmother. (Tr. 326, 327).
daily activities included taking her children swimming, as
they were out of school at the time. She also looked for jobs
and kept up with housework. Occasionally, she crocheted,
sewed, or used the computer. (Tr. 328).
Dr. Spencer tested plaintiff's immediate memory, she
recalled three out of three objects. (Tr. 329). She recalled
zero out of three objects on a “recent” memory
test. (Tr. 329). Dr. Spencer also assessed plaintiff's
concentration. Plaintiff experienced some difficulty counting
in series of three, accurately spelled “world”
backwards, accurately recited five out of five numbers
forward, and two out of three numbers backward. (Tr. 329).
Plaintiff also correctly answered eight different arithmetic
questions. (Tr. 330). Additionally, she accurately recognized
two of three proverbs, three out of three sets of similar
items, and three out of three social norms. (Tr. 329-30). Dr.
Spencer noted that there was no obvious impairment in
plaintiff's hygiene or grooming, that her eye contact was
good, she showed no physical distress, and that she was
“fairly cooperative.” (Tr. 328). Her flow of
thought was intact and relevant, she did not demonstrate any
hallucinations or delusions, but her insight and judgment
were noted as “questionable.” (Tr. 329).
review of plaintiff's psychiatric, medical, family, and
social history, as well as her daily functioning and mental
status, Dr. Spencer concluded that plaintiff had a mood
disorder, posttraumatic stress disorder (by history), bipolar
disorder (by history), and a GAF of 60 to 65. (Tr. 330). He
further found that plaintiff had a “mental illness,
albeit one that does not appear to interfere with her current
ability to engage in employment suitable for her age,
training, experience, and/or education.” (Tr.330).
October 12, 2010, plaintiff underwent an additional
psychiatric evaluation conducted by Marc Maddox, PhD. (Tr.
381-91). His evaluation addressed two categories, 12.04
Affective Disorders and 12.06 Anxiety-Related Disorders. (Tr.
381). Generally, Dr. Maddox concluded that plaintiff's
impairments were not severe. (Tr. 381). Under the 12.04
Affective Disorder category, Dr. Maddox found that plaintiff
had a mood disorder and bipolar disorder (by history). (Tr.
384). He also noted that under the 12.06 Anxiety-Related
Disorders category plaintiff struggled with posttraumatic
stress disorder (by history). (Tr. 385). Dr. Maddox assessed
the degree of limitation caused by these disorders within
four branches: (1) restriction of activities of daily living,
(2) difficulties in maintaining social functioning, (3)
difficulties in maintaining concentration, persistence, or
pace, (4) and repeated episodes of decompensation. (Tr. 389).
In each of the first three categories, Dr. Maddox concluded
that plaintiff's degree of limitation was
“mild.” He further noted that she had no repeated
episodes of decompensation. (Tr. 389). In his notes, Dr.
Maddox wrote that at the time of application the plaintiff
“did not display any obvious psych-related difficulties
during the teleclaim.” He also noted that on August 3,
2010, an MER found plaintiff to have “normal speech,
mood, and affect.” Dr. Maddox also described an August
4, 2010, psychological evaluation, which stated that
plaintiff had “residual symptoms related to grief [and]
depression surrounding her father's death, ” and
that plaintiff's “speech was normal, mood was fine,
affect neutral, and FOT normal.” (Tr. 391). The prior
evaluation also yielded a diagnosis of mood disorder and a
GAF of 60-65, as the evaluator “did not feel that
[plaintiff's] impairments” would “interfere
with her current ability to engage in employment.” (Tr.
391). Dr. Maddox found that plaintiff could pay attention for
several hours, drive, shop, go out alone, cook simple meals,
and complete simple household chores. Plaintiff told Dr.
Maddox that she struggled with concentrating and getting
along with others. (Tr. 391). After reviewing the prior
evaluation notes and conducting his own independent
evaluation, Dr. Maddox found that plaintiff's allegations
were only “partially credible, ” as her
activities of daily living were inconsistent with medical
evaluations. He concluded that plaintiff's
“[c]ondition is not severe.” (Tr. 391).
January 31, 2012, plaintiff visited several doctors
complaining of a migraine headache. She reported to Vijay S.
Sekhon, MD, with the “worst headache ever.” (Tr.
396). He conducted a brain CT scan and found no
abnormalities. (Tr. 396). That same day, plaintiff also went
to Rolla Family Clinic. Shaundelle Olusanya, FNP, examined
her for a migraine plaintiff experienced on and off for four
days. (Tr. 539). Olusanya's notes stated that “she
was seen 4 days ago at RFC for a migraine headache and was
given [N]ubain and Phenergan. She was reminded of the office
policy that she cannot get 2 shots of [N]ubain within the
same week. She was offered a shot of [T]oradol but opted to
go to the ER instead.” (Tr. 539). Also on that
day, plaintiff appeared at Phelps County Medical Center
complaining of a headache. (Tr. 483). The plaintiff underwent
a lumbar puncture in addition to other diagnostic tests. (Tr.
483). Notes report that plaintiff “did not mention
narcotic usage or recent visit with [primary care physician]
who prescribed [T]oradol. In addition patient embellishes her
story to say she only gets 160 10/325 [V]icodin when she
really gets 168. Not truthful. Also demanding pain
meds.” (Tr. 485). The clinical impression was that
plaintiff had chronic headaches and drug seeking behavior.
visited doctors at Phelps County Regional Medical Center with
a sore tongue and a headache on February 9, 2012. (Tr. 476).
Her general appearance was noted as “no apparent
distress, ” and “alert.” (Tr. 479). Several
weeks later, Frank Elders, M.D., examined plaintiff at Phelps
County Regional Medical Center on February 29, 2012. (Tr.
473-75). Plaintiff told Dr. Elders that she came into the
hospital because of sleep issues. (Tr. 473). Dr. Elders
discharged plaintiff with clinical impression of depression.
Outpatient employee Gene Schaefer, CSS, conducted an initial
intake assessment of plaintiff on February 29, 2012. (Tr.
438-43). The presenting issues at that time included such
statements as “I'm about to lose it, ” and
“I've been kicking in doors”; plaintiff also
presented “[a]nger control issues” because her
“17 year old on has been using drugs and [plaintiff]
has been confronting the people that she believes is
supplying those drugs.” (Tr. 438). Plaintiff's
history of domestic assault issues, an alleged assault of her
mother-in-law, and threatening of a neighbor were also
summarized in the report. (Tr. 438-39). Current symptoms were
listed as “racing thoughts, ” that affect sleep,
poor concentration, anger, blunted affect, depression,
somewhat rapid speech, and weight gain. (Tr. 439).
Schaefer's assessment included comments from a previous
“[c]lient stated that she was court ordered to attend
counseling due to a trespassing charge that her mother-in-law
brought up against her. . . Client stated that she went into
foster care at age 11 for about one month. Client stated that
she received counseling during this time. Client stated that
when she was in 6th grade she kicked the principal in the
groin area and she was sent to a group home in Forshtye,
Missouri, she was there for two years. She denied a history
of impatient hospitalization.”
Schaefer provided a provisional diagnosis:
“Client is a 38 year old female who has been involved
in Pathways services several times. Her most recent episode
of care ended in 2008. She presents today as an urgent client
who is having issues with anger control, which has also been
a problem in the past. She has “kicked in the
door” of a home where she suspected her son[stet] was
buying marijuana and also accosted staff at the Pleasure zone
for selling ‘bath salts' to her son. She has
previously been treated for both PTSD and MDDR. Each time she
has been in treatment with us, she has eventually gone off of
her meds and suffered a relapse. She continues to report
symptoms that are indicative of MDDR and she also has
numerous symptoms of anxiety. She is no longer reporting any
flashbacks or dreams of her father's death, but readily
admits that she has not dealt with that after nearly 4
provisional diagnosis on Axis I was major depressive disorder
(moderate) and posttraumatic stress disorder. Schaeffer
evaluated her Axis V with a Global Assessment of Functioning
(GAF) of 50. (Tr. 443).
then visited Forest City Family Practice on March 1, 2012,
complaining of stress and sleep problems. (Tr. 424-25). She
was prescribed Trazodone, and it was noted that plaintiff
would seek additional help from Pathways. (Tr. 424).
progress notes from March 5, 2012, by Kelsey Hansen, BA, CSS,
show that plaintiff expressed frustration with her son and
discussed how her medical problems had impacted her. She was
asked whether she felt that speaking to a counselor would
help her deal with the problems with her son and her
father's death. (Tr. 450).
returned to Forest City Family Practice on March 9, 2012, to
acquire new sleeping medication. She reported that she had
lower back pain and difficulties sleeping even though she
took 100 mg of Trazodone. (Tr. 422). The treating
physician diagnosed plaintiff with insomnia and opined that
it was likely depression related; she also recommended a
follow-up psychology appointment. (Tr. 423).
notes from March 12, 2012, indicate that plaintiff's
“hygiene was good, however, [plaintiff] was still
wearing pajamas. [Plaintiff's] mood was tired and affect
matched.” (Tr. 451). Treatment continued on March 16,
2012, when Kelsey Hansen, CSS, accompanied plaintiff to her
psychiatric appointment. (Tr. 452). At that time, Hansen
observed that plaintiff had good hygiene, appropriate
clothing, and that her “mood was good and affect
matched.” (Tr. 452). Hansen reported similar
observations on March 22, 2012. (Tr. 454).
April 2, 2012, Pathways employee Amanda Brumley, BA, CSS,
evaluated plaintiff's condition. (Tr. 455-58). She wrote
that the presenting problems and situation included, lack of
“motivation and energy, ” “excessive worry
about her son, ” “a history of not cooperating
with employers, ” “trouble with co-workers
because she ‘didn't socialize, '”
“numerous contacts with the police, ” inability
“to express her anger appropriately, ”
“struggles with change, ” and “impulsive
decisions.” (Tr. 455). Her medications at the time were
the muscle relaxer Flexeril, Vicodin for pain, Dulera inhaler
for emphysema, Albuterol for emphysema, Ultram for
inflammation, Trazodone for sleep, Xanax for anxiety,
Neurontin, and Effexor for depression. (Tr. 456).
Additionally, diagnoses in the notes included major
depressive disorder (recurrent and moderate), as well as
posttraumatic stress disorder on Axis I. Brumley indicated an
Axis V GAF of 50. (Tr. 457). Hansen completed a progress note
on April 12, 2012, describing plaintiff as having good
hygiene, acceptable clothing, and a good mood and affect.
They discussed plaintiff's prior anger management
classes. (Tr. 459). A progress report from April 6 and April
17, 2012, presented similar results. (Tr. 460).
continued treatment with counselors and doctors at Pathways
during the spring of 2012. Denise Troy Curry, M.D., met with
plaintiff regarding medication management on April 25, 2012.
(Tr. 656-58). Plaintiff reported that Paxil caused headaches
and that she had discontinued antidepressants. (Tr.
656). Dr. Curry observed that plaintiff was
“readily cooperative with [the] interview, ”
“appropriately dressed and groomed, ” and had a
“brighter demeanor.” (Tr. 657). She further noted
that plaintiff exhibited “good verbal fluency and
comprehension coupled with full abstraction capacity”
indicating “average intellectual function.” (Tr.
657). Dr. Curry had an impression of major depression
recurrent (severe, without psychotic features) and
complicated bereavement syndrome, tolerance to sedating
effects of medications, caffeinism, and inadequate sleep
hygiene on Axis III, and a GAF of 59 on Axis V. (Tr. 657).
Ultimately, Dr. Curry recommended an increase in Vistaril and
follow-up appointments. (Tr. 658).
April 30 and May 14, 2012, plaintiff met with Hansen to
discuss plaintiff's “recent anger outbursts,
” and sleeping problems. (Tr. 654-55). On April 27 and
April 30, 2012, plaintiff visited Forest City Family Practice
for an evaluation of her chronic back pain, COPD, and anxiety
and depression in connection with her disability
benefits application. (Tr. 811-14).
Curry met with plaintiff regarding medication management on
May 16, 2012. (Tr. 650-52). Plaintiff reported increased
anxiety and “low mood.” (Tr. 650). Dr. Curry
advised plaintiff to continue using Vistaril, begin taking
Citalopram on a trial basis, and discontinue
Ambien. (Tr. 651). Dr. Curry documented an
impression of major depression recurrent (severe without
psychotic features) and complicated bereavement on Axis I and
a GAF of 59 on Axis V. (Tr. 651). A June 27, 2012, counseling
session focused on anxiety and anger management strategies.
Curry met with plaintiff again on July 18, 2012. (Tr.
646-48). In her individual progress notes, Dr. Curry wrote
that plaintiff came in for a follow-up, “reporting
irritability” and “passive thoughts of
death.” (Tr. 646). Observations included that plaintiff
was “readily cooperative with interview, ”
“appropriately dressed and groomed, ”
“speech clear, ” an
“‘overwhelmed'” mood, and generally
normal assessments otherwise. (Tr. 647). On Axis I Dr. Curry
found that plaintiff suffered from major depressive disorder
(recurrent, severe without psychotic features), as well as
complicated bereavement. Further, Dr. Curry found a GAF of
42. (Tr. 647). Dr. Curry recommended plaintiff take Invega
before bedtime and Cymbalta in increasing
increments. (Tr. 647).
visited Forest City Family Practice in the summer of 2012 for
assorted medical issues including neck and back pain as well
as a noted need for a psychological follow-up on July 9,
2012. (Tr. 807-10). Specifically, medical records indicate
that plaintiff has a great deal of stress and