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Moss v. Berryhill

United States District Court, W.D. Missouri, St. Joseph Division

May 31, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          NANETTE K. LAUGHREY United States District Judge.

         Plaintiff Tamara Jean Moss appeals the Commissioner of Social Security's final decision denying her application for supplemental security income. The decision is affirmed.

         I. Background

         Moss was born in 1963. She alleges that she became disabled on September 1, 2004, and filed an application for benefits on May 8, 2013. The Administrative Law Judge held a hearing and denied her application on June 8, 2015. The Appeals Council denied her request for review on July 29, 2016.

         Moss' appeal to this Court focuses on her alleged depression, which the ALJ concluded was non-severe, and the sufficiency of support for the ALJ's determination of her residual functional capacity, which Moss claims fails to account for her pain symptoms, in particular those caused by fibromyalgia.

         A. Psychological history[1]

         Arihant Jain, M.D., was one of Moss' primary care providers through June 2013. His treatment records for the period from June 2012 through June 2013 state that Moss had normal mental status exams, although the doctor once noted that Moss' mood was depressed and once noted that she was crying, and other times noted that her ability to concentrate was decreased. During this time period, the doctor never formally diagnosed depression, nor offered Moss treatment for mental health issues such as by prescribing psychotropic medication or referring her for counseling.

         William Irby, D.O., another primary care provider, saw Moss about five times from December 2012 to January 2014 for routine care. In July and September 2013, Dr. Irby diagnosed Moss with anxiety and depression, and prescribed Prozac, noting that Moss had feelings of hopelessness and depression, and little interest or pleasure in doing things. In December 2013, Dr. Irby noted that Moss' mood was “euthymic, ” Tr. 530, or normal, and he did not renew the Prozac. In January 2014, Dr. Irby again noted that Moss' mood was euthymic, and under the “test conclusions” portion of the treatment record, wrote that Moss had “no feelings of depression, ” nor any loss of interest in activities. Tr. 528.

         Barb Zoubek, a “case/care coordinator”[2] in Dr. Jain's and Dr. Irby's office, visited with Moss before appointments or phoned her a few times between August 2012 and March 2014. On August 21, 2012Moss told Zoubek that she was doing alright. On August 31, 2012, Zoubek noted that Moss was tearful, complaining of pain and that her husband had left her. Moss reported that she had tried Prozac for depression but it did not help because she could not also afford counseling. Tr. 327. In September 2012, Moss said she was doing okay but would probably never get over her divorce. Id. In January 2013, Zoubek noted that Moss was very tearful, reporting that a young relative had recently died. Moss also said she was “not interested” in working on anything to improve her health at the time. Tr. 318. In March 2014, Moss told Zoubek that she was doing okay.

         B. Medical history

         Dr. Jain treated Moss for neck, back, and shoulder pain from December 2010 through May 2013. Physical exam findings showed tenderness in those areas, as well as dysfunction such as weakness and abnormal movement of the shoulders, and the doctor prescribed pain medication, muscle relaxers, and home exercises. At a visit on March 21, 2011, the doctor noted that he would consult an orthopedist and order an MRI of Moss' cervical spine because he thought it was “likely” that Moss' symptoms were related to a cervical spine abnormality. Tr. 267-68. On April 26, 2011, Dr. Jain's Assessment included localized osteoarthritis of the right shoulder, AC joint; compression arthralgia of the right shoulder; cervical spondylosis; myalgia and myositis; and fibromyalgia. At a visit on January 18, 2012, Dr. Jain performed a physical exam and his Assessment was hypertension, cervical spondylosis (C5-C6), nicotine dependence, and obesity.

         At a visit on June 8, 2012, Moss told Dr. Jain that she was upset about how he had filled out her disability paperwork, in that he had not included diagnoses of fibromyalgia, or arthritis in her neck, and that he had suggested she was not giving good effort on exam. Dr. Jain told Moss that he did not recall filling out forms, but that he would include a diagnosis of fibromyalgia in her records. Tr. 332. The doctor's Assessments at that visit included fibromyalgia, as well as localized primary osteoarthritis of the left knee and cervical spondylosis (C5-C6). Tr. 334. In December 2012, Dr. Jain noted that Moss' musculoskeletal exam was “normal, ” she had “[n]o sensory exam abnormalities, ” and “motor exam demonstrated no dysfunction.” Tr. 320. The Assessment was osteoarthritis of the knee. Tr. 321. On subsequent visits, through May 2013, the doctor's Assessments included the diagnoses of fibromyalgia and cervical spondylosis (C5-C6). See Tr. 331 (July 11, 2012); Tr. 329 (August 31, 2012); Tr. 326 (October 12, 2012); Tr. 323 (November 12, 2012); Tr. 317 (March 19, 2013); and Tr. 313 (May 20, 2013).

         Dr. Jain never ordered any limitations in Moss' physical activities. Rather, under “Counseling/Education, ” the treatment record numerous times noted that “[t]he patient's goal is to maintain regular exercise.” Tr. 369 (January 18, 2012); Tr. 234 (June 8, 2012); Tr. 329 (August 31, 2012); Tr. 326 (October 12, 2012); Tr. 323 (November 12, 2012); Tr. 317 (March 19, 2013); and Tr. 313 (May 20, 2013).

         Moss began seeing another primary care provider, Dr. Irby, in 2013. On July 11, 2013, Dr. Irby's physical exam elicited pain on moving the shoulder, but under Assessments, the diagnoses related to anxiety and depression. Tr. 532-33. Dr. Irby did not prescribe medication for the mental health diagnoses. At a visit on September 12, 2013, Dr. Irby found multiple joint aches on exam, especially in the right shoulder, but no motor dysfunction or sensory abnormalities. His Assessments included depression, chronic pain syndrome, myalgias, and cervical spondylosis (C5-C6). Tr. 532. He prescribed Prozac and ordered a consultation with a rheumatologist. On December 5, 2103, Dr. Irby noted that Moss' musculoskeletal exam was normal, no sensory abnormalities were noted, and that motor exam demonstrated no dysfunction. Tr. 530. The Assessment was UTI. He did not renew the Prozac. On January 8, 2014, Dr. Irby identified “multiple trigger points” on musculoskeletal exam, normal reflexes, and no motor dysfunction. Tr. 528. His Assessments were myalgia and myositis, and chronic pain syndrome, and he did not renew the Prozac. Id.

         Moss saw Thomas Scott, M.D., a rheumatologist, in September 2013. Dr. Scott's Impressions were fibromyalgia, history of positive rheumatoid factor without clinical evidence of rheumatoid arthritis, and intolerance to multiple therapeutic agents for fibromyalgia. Tr. 410. Under Plan, the doctor ordered labs to check for an inflammatory disorder; provided Moss with literature about fibromyalgia; and noted that Moss should continue on her current medical regimen. Id. Nothing in the record reflects that Dr. Scott or any other rheumatologist treated Moss.

         On January 24, 2013, Sharon Kavanaugh, D.C., performed a chiropractic adjustment to treat Moss' report of pain in the right upper back and left buttock. Dr. Kavanaugh performed another adjustment on September 26, 2013 for pain in Moss' right upper back, neck, and head.

         C. Opinion evidence

         Dr. Jain filled out a two-page, “Medical Source Statement-Mental” form in May 2013. Tr. 306-07. Under “Understanding and Memory, ” the doctor checked boxes indicating that Moss was moderately limited in the ability to remember locations and work procedures, and understand and remember detailed instructions. Under “Sustained Concentration and Persistence, ” the doctor indicated that Moss was markedly limited in the ability to maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual; work in coordination or proximity with others without being distracted by them; and complete a normal work day and work week without interruption from psychological symptoms. He also indicated that she was moderately limited in the ability to carry out detailed instructions, sustain an ordinary routine without special supervision, and make simple work-related decisions. Under “Social Interactions, ” he noted that she was markedly limited in the ability to accept instructions and respond appropriately to criticism from supervisors, and get along with coworkers. He also noted that she was moderately limited in the ability to maintain socially appropriate behavior and adhere to the basic standards of neatness and cleanliness. Finally, under “Adapt, ” the doctor noted that she was markedly limited in the ability to respond appropriately to changes in the work setting, and be aware of normal hazards and take appropriate precautions. He further noted that Moss was moderately limited in the ability to travel in unfamiliar places or use public transportation, and set realistic goals or make plans independently of others. The form indicates, in a preprinted section, that the assessment is based on the five factors listed: medical history, clinical findings, laboratory findings, diagnosis, and treatment prescribed and prognosis. Tr. 307. Dr. Jain did not provide any written notes about the five factors. The ALJ gave the opinion little weight. Tr. 23.

         Dr. Jain also filled out a two-page, “Medical Source Statement-Physical” form in May 2013. Tr. 308-09. Dr. Jain checked the boxes pertaining to least effort, under every subpart of the first section, “Physical Strength Factors”: lift and/or carry frequently-less than five pounds; life and/or carry occasionally-less than five pounds; stand and/or walk continuously- less than 15 minutes; stand and/or walk throughout an eight-hour day-less than one hour; sit continuously at one time-less than 15 minutes; sit throughout an eight-hour day-less than one hour; push and/or pull-limited to no pushing or pulling over five pounds for more than five minutes due to neck and shoulder pain. Tr. 309. Under “Postural & Manipulative Factors, ” Dr. Jain checked boxes indicating that Moss could occasionally (up to one-third of the time) climb, balance, stoop, kneel, crouch, and crawl, and could frequently (one-third to two-thirds of the time) reach, handle, finger, feel, see, speak, and hear. Tr. 309. He noted that Moss would need a cane to ambulate. Under “Pain Factors, ” where the form asks whether the patient's pain or pain medication affects her concentration, persistence, or pace, or cause other limitations, the doctor checked “Yes, ” and wrote, “Patient on pain medications causing decreased concentration and attention span, ” but provided no other details about the extent or duration of such symptoms. Tr. 309. Like the MSS-Mental form that he filled out, the MSS-Physical form contains the five, pre-printed factors upon which the assessment is based. Tr. 309. Dr. Jain did not provide any written description about the factors. The ALJ gave the opinion little weight. Tr. 23.

         Moss was scheduled to be examined by Samuel Preylo, Psy.D., a State agency, psychological consultant, in August 2013, but never showed up. She was rescheduled for September 4, 2013. Although she received a reminder call for the rescheduled appointment the evening before, she arrived a half-hour late, and said that she moved slowly due to pain. The doctor's office told her there was not enough time left for the appointment that morning, but that there would be enough time if she came back in the afternoon, a few hours later. Moss said she could not come back and the mental evaluation was never rescheduled.

         Mark Altomari, Ph.D., a State agency medical consultant, reviewed Moss' records on September 9, 2013 and opined that although there was evidence of an anxiety and affective disorder, there was insufficient evidence to show that Moss had restrictions in activities of daily living, maintaining social functioning, or maintaining concentration, persistence, or pace; or that she had had any episodes of decompensation. Tr. 68-70. Dr. Altomari also noted Moss' failure to cooperate and attend the evaluation by Dr. Preylo. The ALJ gave the opinion significant weight. Tr. 23.

         Moss was evaluated by Brandon Sigrist, a physician's assistant with the Orthopedic & Sports Medicine Center, at the request of the State agency on December 19, 2013. Sigrist noted that Moss was “somnolent” when he went to get her from the waiting room and that Moss said she did not sleep well. Tr. 361. She stated that she was miserable from pain in her neck that went down her right shoulder and hand, rating the pain at 8 out of 10 that day. Sigrist noted that Moss appeared to be in “moderate distress” throughout the exam and that the exam was difficult to perform due to Moss' pain. Id. She had limited range of motion in the neck and right shoulder, although her muscle tone appeared normal bilaterally, without obvious atrophy. X-rays of the right shoulder showed moderate degeneration of the AC joint, no acute bony abnormalities, and well-maintained joint space at the glenohumeral articulation. X-rays of the cervical spine showed no spondylolisthesis or acute bony abnormalities, but did show diffuse degenerative changes throughout the cervical spine. Sigrist also noted reviewed prior MRIs of Moss' cervical and thoracic spine, May and June 2011. Sigrist's Impression was neck pain, and right shoulder and upper extremity pain with numbness and tingling. Under Plan, he noted that further workup was warranted, but “believe[d] she has a physical disability which prevents her from engaging in gainful employment or gainful activity, ” of an estimated duration of “6 to 12 months or possibly longer.” Tr. 362. Sigrist noted that he had reviewed the report with Corey A. Trease, M.D. The ALJ gave the opinion little weight. Tr. 24.

         Dr. Kavanaugh, Moss' chiropractor, filled out a Medical Source Statement-Physical form on February 4, 2015. Tr. 373-75. Dr. Kavanaugh opined that Moss could rarely lift or carry less than ten pounds, and never lift or carry 50 pounds; frequently balance, occasionally twist or crouch, rarely stoop or crawl, and never climb; frequently finger and feel, and rarely reach or handle; sit for 45 minutes at a time and sit at least six hours total in an eight-hour work day; stand 20 minutes at a time before needing to sit or walk, and stand two hours total in an eight-hour work day; needed to shift positions from standing to walking at will; needed five unscheduled, 30-minute rest breaks a day due to “pain, paresthesia, numbness” and “muscle weakness”; needed “no” can or other assistive device; did not need to elevate her legs; would be off task for 25% of the day; was incapable of “low stress” work; and would miss more than four days of work per month due to her conditions. Tr. 374-75. Where asked on the form to identify clinical findings and objective signs, Dr. Kavanaugh noted “muscle spasms at right trapezius & rhomboids with signs of inflammation, decreased [range of motion] in right shoulder.” Tr. 373. Then, where asked about treatment, the doctor noted, “Chiropractic treatment has decreased pain & increased [range of motion].” Id. The ALJ gave the opinion little weight.

         A vocational expert, Janice Barnes-Williams, testified at the hearing before the ALJ. Tr. 56-63. The ALJ asked about a hypothetical individual of Moss' age, with the same education and work experience, who can occasionally lift 20 pounds; frequently lift ten pounds; stand, walk, or sit up to six hours; needed to alternate between sitting and standing every 30 minutes; occasionally climb ramps or stairs, stoop, kneel, crouch; never climb ladders, ropes, or scaffolds; and never balance or crawl; who must avoid to overhead reaching bilaterally; who must avoid exposure to temperature and humidity extremes, excessive vibration, unprotected heights; and who can tolerate no more than occasional exposure to pulmonary irritants Tr. 57-58. The hypothetical did not include any mental limitations. The expert opined that such an individual could perform Moss' past relevant work as a call center, customer service representative. The expert further opined that the individual could perform the requirements of representative occupations such as retail marker, inserting machine operator, and electronics sub-assembler. Each of the three occupations is classified as unskilled and SVP 2[3], light exertional level, and available in significant numbers in the national and Missouri economies. The expert further opined that employers typically provide a15-minute rest break in the morning and in the afternoon, and a 30- to 60-minute lunch break, and typically tolerate one sick-day absence per month. Finally, the expert stated that her testimony was consistent with the Dictionary of Occupational Titles.

         D. Moss' hearing testimony, Adult Function Reports, and employment history

         Moss testified during the hearing before the ALJ on February 23, 2015. She has a GED. She lives by herself in a one-bedroom, street-level apartment. She has a driver license and drives one or two times a week. She goes to the post office once a month to get money orders to pay bills. She shops for groceries three times a month, making a 50-mile round-trip to Wal-Mart “because they have the carts I can sit on and drive.” Tr. 39. About once a month she drives to see her younger daughter and grandchild, who live about seven miles away. She said that she drives once a month to see her mother, who lives about 40 or 45 miles away, “to get my money to live on.” Tr. 40. She goes to see her father, who lives about 35 or 40 miles away, about three times a year and will spend the night there due to the pain caused by the drive. She drives to visit her older daughter and grandchildren, who live 60 miles away, about twice a year. She also drives herself to doctor appointments.

         Moss further testified that she goes to a friend's house two or three times a month to do her laundry and just to get out, and washes dishes from time to time. She said she has problems lifting. She also said that after standing to brush her teeth, she has to lie down for 20 minutes to rest, and after taking a shower has to lie to down for 20-30 minutes. She said she has problems sitting. She also testified that she rode in a car for one hour to attend the hearing before the ALJ and stopped once for a restroom break, and the ALJ noted that Moss sat through the hearing, which lasted 50 minutes. Tr. 26. Moss smokes one or more packs of cigarettes a day, although she has been advised by her doctors to stop. She said she uses oxygen and a cane. The ALJ noted that she did not have them at the hearing. She testified that medication helped her pain symptoms somewhat. Tr. 50. She is sensitive to temperature extremes.

         Moss said that in the past 15 years, she has worked for about four months as a cashier (in 2004) and briefly at an Arby's but quit because of pain (in 2009). More remotely in time, she worked in a call center. She has not looked for work since 2009. She testified that she cannot work full time because of pain she experiences in her neck, shoulders, back, and left thigh, and lung pain and breathing difficulties.

         Moss did not mention depression during her testimony. She did testify that the physical pain she experiences causes confusion. Specifically, “[T]his last year, it seems like there's times, for a few moments or a minute, I feel like I'm not sure where I'm at or what I'm doing. But I mean, I always figure it out. I have trouble remembering things a lot in all kinds of ways[]” and “[i]t's hard to think.” Tr. 51. She also testified, “[M]y pain is so bad I have a hard time dealing with noise, a lot of noise, other people, a lot of people talking[.]” Tr. 53. An LPN from Tiffany-In-Home Services visits once a week and sets up Moss' medications because Moss “has a hard time remembering to take” her pills and the help “makes it a lot better.” Tr. 55.

         In her Adult Function Report prepared in June 2013, Moss stated that she has to go to bed several times per day due to pain and can only walk half of a block at a time. She can pay bills and manage her money; drive and shop; provide for her own personal care with some pain; prepare microwave meals; wash dishes; do laundry with assistance; and get along with authority figures. She watches television and reads. She stated that she has trouble with memory, completing tasks, concentrating, and understanding. She has no trouble getting along with authority figures. She also reported that she can follow short, simple, written instructions, and where asked on the form whether she could follow spoken instructions, she answered, “I understand[.] I'm not dumb.” Tr. 188.

         A friend, Deloris McCulloh, also filled out a function report and similarly stated that Moss provides for her own personal care slowly, prepares meals, does laundry with help, drives, ...

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