United States District Court, W.D. Missouri, Western Division
DANIELLE M. SUTER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
NANETTE K. LAUGHREY United States District Judge
Danielle M. Suter appeals the Commissioner of Social
Security's final decision denying her application for
disability insurance benefits and supplemental security
income under Titles II and XVI of the Social Security Act.
The decision is affirmed.
was born in 1978 and alleges a disability onset date of
10/10/2011. Her date last insured was 6/30/2015. The
Administrative Law Judge denied her application on 3/8/2013
and the Appeals Council denied her request for review on
1/4/2016.In this appeal, Suter challenges the weight
the ALJ gave certain opinion evidence, and the ALJ's
assessment of the effect of her obesity and of her
credibility. Suter also challenges the ALJ's findings at
Step 5 of the sequential analysis.
October 2011, Suter complained to her primary care provider
of fatigue and all-over body pain. Labs were negative for
autoimmune diseases but reflected high C-reactive protein
levels. She was prescribed asthma medication. At a November
2011 visit, she complained of low back pain and muscle aches
and said she was concerned that she had lupus. Her doctor
assessed myalgia and referred her for rheumatology and
neurology consults. At a December 2011 visit, she complained
of trouble walking and shortness of breath. Labs reflected
high C-reactive protein levels. An echocardiogram was normal.
Tr. 317-18. Suter's C-reactive protein was high in
saw Shannon Kohake, M.D., a neurologist later February 2012.
Suter complained of weakness, muscle spasms and pain, and
poor concentration and memory loss. Under Plan, Dr. Kohake
noted, "Overall, the patient's exam was unremarkable
except for some pain limitation in muscle strength testing of
the right hip flexor related to obvious pain in the
region." Tr. 297. The doctor recommended MRIs of the
brain given Suter's complaints of memory difficulties and
word-finding, and of the cervical and lumbar spine, due to
complaints of muscle weakness, spasms, and gait disturbance.
The doctor also recommended a nerve conduction study and some
had the nerve conduction study (of all limbs) the day after
she saw Dr. Kohake. Steven Koss, M.D., a neurologist,
concluded that the findings were all normal except for
"mild" findings at the right wrist consistent with
the clinical diagnosis of carpal tunnel syndrome. "There
[was] no evidence of other mononeuropathies, large fiber
peripheral neuropathy, lumbosacral/cervical neuropathy, or
myopathy." Tr. 292. The MRIs of Suter's brain,
cervical spine and lumbar spine were normal, except for a
finding of some degenerative changes in the apophyseal joints
at ¶ 4-L5 and L5-S1.
March 2012, Suter had her first visit with a rheumatologist,
Arnold Katz, M.D. She told the doctor that she had had pain
in her hips, legs, chest, and heart area since October 2011,
was nauseated and spent a lot of time in bed. She was
concerned that she might have lupus or multiple sclerosis.
Dr. Katz noted that Suter had had negative autoimmune
testing, and an MRI of her brain and extensive neurological
work up were normal, and that her neurologist did not feel
her symptoms were related to a neurological disorder. Dr.
Katz also noted Suter's diagnosis of fibromyalgia,
Suter's complaint that she sometimes could not move her
right leg because it felt "paralyzed" and her
normal lumbar MRI. Tr. 304. After examining Suter, Dr.
Katz's assessment was active fibromyalgia, fatigue,
persistent nausea, obesity, hematuria, asthma,
insulin-dependent diabetes, rosacea, and depression. The
doctor explained to Suter that she had classic signs and
symptoms of fibromyalgia. Based on her negative autoimmune
bloodwork and in the "absence of hard features
suggesting lupus, " he did not believe she had lupus or
"any other classic connective tissue disease." Tr.
308. He also noted that "[t]here are multiple reasons
for an elevated C-reactive protein [level], and [Suter's]
elevations [were] not particularly high, " so he did not
feel they were "representative of any underlying
connective tissue disease." Id. He ordered lab
tests and a chest x-ray, and started a trial of gabapentin
saw Melissa Rosso, M.D., a primary care provider, in May
2012, reporting "a myriad physical complaints." Tr.
358. On exam, Dr. Rosso noted memory recall of two out of
three words, decreased temperature sensation in Suter's
previously injured ankle, proximal weakness greater than
distal weakness in the limbs, and some reduction in flexion
and extension of the joints bilaterally. The doctor also
noted a rash on Suter's face in a butterfly-shaped
distribution. Tr. 359. Dr. Rosso's Assessment was chronic
pain. She noted that Suter's symptoms were not entirely
consistent with fibromyalgia and that she suspected an
autoimmune disorder. Under Plan, Dr. Rosso noted that Suter
should continue gabapentin and NSAIDs, and would be referred
to KU to establish care in the Family Medicine Clinic, and
then obtain a rheumatology consult at KU.
2012, Suter saw Elizabeth Gerstner, M.D., a primary care
physician, to reestablish care. Dr. Gerstner noted no
abnormalities on physical exam. Suter was interested in
medical marijuana for her fibromyalgia. The doctor declined
to prescribe it because it was not a typical treatment, and
recommended that Suter continue her current medication. The
doctor noted that Suter had failed trials of antidepressants
in the past and recommended that Suter consider a psychiatric
had a follow-up appointment on 7/25/2012 with Dr. Kohake, the
neurologist, for muscle pain and myalgias. The doctor noted
that Suter's MRI results were largely normal and her
rheumatology work up was negative. Suter said her
concentration was a bit worse and that she had difficulty
with sleep, which she related to Dr. Katz's prescription
of gabapentin for pain. Physical exam was normal except that
the doctor could not obtain reflexes in the lower extremities
and there was some give-way weakness. Also, Suter gave poor
effort on the motor exam. Dr. Kohake's Assessment was
subjective muscle weakness, myalgias, muscle spasms, gait
disturbance, and memory difficulty. Under Plan, Dr. Kohake
noted that the etiology of Suter's symptoms was unclear,
"however, we have not found a neurologic cause."
Tr. 364. The doctor discussed neuropsychological testing for
Suter's memory complaints and suggested that she check
with her insurance. The doctor also discussed different
medication options for Suter's pain, but Suter was
reluctant to try new ones because of past adverse effects on
her mood. Finally, Dr. Kohake recommended therapy for
treatment of Suter's depression.
September 2012, Suter saw a rheumatologist, Celso Raul
Velazquez, M.D., on referral from Dr. Spurlock. Suter told
him that she had severe pain and achiness in her thighs and
calves when she walked, and she could not use stairs; had
severe, daily low back pain; and had tingling and weakness in
her hands and feet, and weakness in her shoulders. The doctor
noted on physical exam that Suter had decreased strength, but
her "effort [was] inconsistent" and she had
multiple fibromyalgia tender points. Tr. 383. Her joints were
cool with normal range of motion and no swelling. Dr.
Velazquez's Assessment included myalgias,
polyarthralgias, "multiple symptoms that I cannot
explain, " and "[s]ome ... symptoms suggest[ing]
fibromyalgia" Id. He further noted, "I
do not think she has lupus or another autoimmune rheumatic
disease because she has no skin, joint, kidney or
hematological abnormality to support this diagnosis."
Id. He recommended "a second opinion from
another neurologist." Id.
October 2012, Suter saw a gastroenterologist, Gregory Barber,
M.D. with complaints of bloating and diarrhea. The
doctor's Impression was gastroesophageal reflux disease,
abdominal bloating, and diarrhea. He prescribed Levbid and
Zantac. A gastric emptying study was normal.
had a hysterectomy in December 2012.
3/6/2013, Suter saw Yvonne Spurlock, D.O., a primary care
physician. Suter said she thought she had lupus and wanted
Dr. Spurlock to diagnose her with and treat her for it. Dr.
Spurlock said she would order labs, but was not comfortable
making the diagnosis. The doctor also explained that the
treatment had serious side effects. She recommended that
Suter pursue a support group or another opinion from another
saw Dr. Spurlock again on 3/20/2013. Suter complained of a
lot of all-over pain, and said she was very depressed and had
been "suicidal a couple of days ago, " but was not
currently. Tr. 986. She said she had not seen a psychiatrist
in some time but needed to, to document that she had tried
multiple antidepressants since childhood and that they did
not work. Dr. Spurlock said she would arrange for a
psychiatric evaluation and provided Suter with records.
3/27/2013, Suter was seen at the MU Center for Rheumatology
by C. Siva, M.D., for a "4th opinion on
fibromyalgia vs lupus diagnosis." Tr. 889. Her chief
complaint was "extreme pain everywhere[.]"
Id. Dr. Siva reviewed Suter's medical records
and test results. He noted facial flushing and diffuse
allodynia and myofascial tenderness on physical exam. Under
Assessment and Plan, he stated that he had reassured Suter
there was "no objective evidence for" rheumatoid
arthritis or lupus, and that the non-specific
anti-inflammatory markers could be due to other medical
conditions such as obesity and diabetes. Tr. 891. He
suggested she try increasing her clonazepam dosage for pain,
but she said it would be too sedating and asked about
Vicodin. Dr. Siva suggested she talk to her primary care
provider about Vicodin. He noted that she had a pending
appointment with a psychiatrist and suggested she try
different medications while under his supervision. He also
gave her materials about self-management of chronic,
widespread pain. Id.
2013, Suter saw Dr. Spurlock with complaints of pain. The
only finding on physical exam was mild swelling in the legs.
Dr. Spurlock's Assessment was chronic pain, chronic
diarrhea, chronic nausea, uncontrolled diabetes mellitus,
fibromyalgia, and depression and anxiety. Under Plan, the
doctor noted that Suter would continue to see her
psychologist. The doctor also recommended "possibl[e]
shock therapy." Tr. 969. Suter said that her
psychologist said it was "not appropriate for" her.
Id. Suter did not want to try any medications such
as Neurontin or antidepressants due to past reactions. Dr.
Spurlock ordered labs.
returned to Dr. Barber, the gastroenterologist, in August
2013. The doctor suspected inflammatory bowel disease. The
results of an esophagogastroduodenoscopy and a colonoscopy
September 2013, Suter returned to Dr. Katz, the
rheumatologist, with complaints of pain and low-grade fever.
He noted no edema in the extremities and that Suter's
"last [complete blood count] was fine." Tr. 950.
Her temperature was normal. Dr. Katz's Assessment was
fibromyalgia, resistant to usual treatments; unexplained low
grade fever; insomnia; fatigue; and depression. Under Plan,
he noted that he would obtain an infectious disease
consultation and pain management evaluation, and prescribed
Dolobid for pain.
the same month, Suter saw Dan Hancock, M.D. at the
Centerpoint Medical Center pain clinic. Under History, Dr.
Hancock noted that Suter:
[P]resents with a complex and convoluted past medical
history. She presents with the dreaded complaint of
"constant pain all over my body." She states that
since she was diagnosed with fibromyalgia in 2003, she has
had "head to toe pain which feels as though I am being
crushed all over my body."
Tr. 931. Findings on physical exam were all normal, except
that Suter identified tenderness at 18 of the 18 tender
points designated by the American Rheumatological
Association, including multiple soft tissue locations. The
doctor noted that in filling out the intake questionnaire,
Suter had marked 16 of the 17 pain descriptors. He noted that
individuals who select more than 7 descriptors are those
"who tend to over-magnify and are prone to somatoform
disorders." Tr. 933. Dr. Hancock further wrote:
Note should also be made that although this patient does
express a certain degree of frustration about the inability
of medical personnel to identify the cause of her painful
symptoms, the more she discusses her underlying symptoms, the
more she appears to obtain some sense of enjoyment or
pleasure that she has been able to "stump" as many
physicians as she has, because she states that none of the
doctors that she has seen have been able to provide her with
any answers as to why she has experienced these painful
Id. Dr. Hancock's Impressions included
"chronic pain syndrome, etiology undetermined, "
morbid obesity, "fibromyalgia-type symptoms, "
clinical depression, obsessive/compulsive disorder, right
carpal tunnel syndrome, and GERD. Id. Under Plan,
the doctor stated that he had had a long discussion with
Suter and her mother, and informed them that he had
"nothing to offer...for the treatment of Suter's
"chronic pain syndrome." Id. He told them
that Suter's complaint of pain "over every square
inch of her body" was not amenable to any type of
interventional therapy. Id. He considered that she
had tried "the gamut" of multiple antidepressants,
anti-inflammatory, and anti-neuropathic pain medications and
that she had stated she was intolerant of all of them. He did
not recommend opioids. He did recommend cognitive behavioral
therapy, which in his opinion "offered the greatest
likelihood of success in treating [her] underlying
condition." Tr. 934.
saw Daniel Geha, M.D., in October 2013 for an infectious
disease consultation, and with complaints of a 10-day,
low-grade fever and pain. Her temperature was 98.8° F.
Dr. Geha's Assessment was unspecified myalgia and
myositis; malaise and fatigue; fever, unspecified; and
insomnia, unspecified. Tr. 1011. He also noted chronic
fatigue with fibromyalgia, "[n]o other etiology
established at this time[, ]" and recommended
"continued symptomatic treatment with regular medical
follow up." Id.
follow up in January 2014 with Dr. Katz, the rheumatologist,
Suter reported that the pain management doctor, Dr. Hancock,
"did not believe in fibromyalgia, " and that the
infectious disease specialist, Dr. Geha, "felt that her
fever was 'fibromyalgia-related.'" Tr. 952. Dr.
Katz noted that Suter had 16 out of 18 classic fibromyalgia
tender points on exam and an erythematous blush on both
cheeks. His assessment was fibromyalgia, active; insomnia;
chronic fatigue; chronic headaches; right plantar fasciitis;
and IBS. He increased her clonazepam dosage, discontinued
diclofenac and started ketoprofen. He also ordered an x-ray
of her foot.
saw Casey Williams, M.D. in March 2014 for left shoulder
pain. She had decreased range of motion and crepitus. The
doctor ordered an MRI and physical therapy. The MRI showed
mild acromioclavicular, degenerative changes.
April 2014 follow up with Dr. Katz, Suter complained of low
energy and that she could not sit or stand for prolonged
periods. She had tenderness in both shoulders and 18 out of
18 fibromyalgia tender points. The doctor prescribed
lorazepam and Robaxin. Tr. 956.
2014, Suter saw Dr. Spurlock with complaints of insomnia. The