United States District Court, W.D. Missouri, St. Joseph Division
NANETTE K. LAUGHREY United States District Judge.
Tamara Jean Moss appeals the Commissioner of Social
Security's final decision denying her application for
supplemental security income. The decision is affirmed.
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.
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
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.
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.
Zoubek, a “case/care coordinator” 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.
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.
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).
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).
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.
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.
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.
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.
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.
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
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.
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.
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.
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, 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
Moss' hearing testimony, Adult Function Reports, and
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.
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.
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.
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.
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.
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,