United States District Court, W.D. Missouri, St. Joseph Division
NANETTE K. LAUGHREY UNITED STATES DISTRICT JUDGE
Rebekah Salsbury appeals the Commissioner of Social
Security's final decision denying her application for
disability insurance benefits under Title II of the Social
Security Act. The decision is affirmed.
was born in 1978. She initially alleged she became disabled
beginning 9/9/2009, but later amended her alleged onset date
to 1/25/2013. The Administrative Law Judge held a hearing on
10/7/2015 and denied her application on 11/3/2015. The
Appeals Council denied her request for review on 10/25/2016.
In this appeal, Salsbury argues that the ALJ erred in finding
that Salsbury's statements were not entirely credible.
Salsbury also argues the ALJ failed to weigh and consider all
opinion evidence of record by discounting the opinion of her
treating physician, and by neglecting to evaluate the
opinions of her chiropractor. Salsbury also argues the
ALJ's RFC, specifically with regard to her mental
impairments but also as a whole, is unsupported by any
medical opinions. Finally, Salsbury argues the Commissioner
failed to sustain her burden at Step 5 of the sequential
analysis because the Vocational Expert included a job
Salsbury could not perform in her testimony.
Salsbury has an extensive medical history, one which predates
her alleged onset date by decades. In September 2013,
Salsbury visited Wendell Bronson, D.O., who remarked she had
“[a] chronic complex collection of pain, poor sleep,
fatigue, mood changes, inactivity, muscle deconditioning,
weight changes and more pain since long before [he] met her,
she says since 1993.” Tr. 357. Her relevant medical
history for the purpose of this order, however, begins at her
alleged onset date, January 25, 2013.
2013, Salsbury was examined by Angelia Martin, M.D. She was
concerned about the possibility of hyperglycemia or diabetes
because of some swelling and fluid retention. After an
examination, Dr. Martin's diagnosis was fluid retention.
Tr. 380. Salsbury returned to Dr. Martin in July 2013,
complaining of migraines, joint pain, muscle spasms, dry
eyes, and dry mouth. She had experienced sudden weight loss
and weight gain, and feared she might have lupus or
Sjogren's syndrome. Dr. Martin diagnosed Salsbury with
fatigue, myalgia, arthralgia, dry eyes, and dry mouth. Tr.
2013, Salsbury visited Veronica Anwuri, M.D., her primary
care physician, because she was having difficulty finding a
rheumatologist. Salsbury had visited Dr. Anwuri several times
over the past year, and Dr. Anwuri was familiar with
Salsbury's symptoms. On previous occasions, Dr. Anwuri
had diagnosed classic migraines, depressive disorder, carpal
tunnel syndrome, myalgia and myositis, herpes zoster,
gastroparesis, and esophageal reflux, and she had prescribed
Hydroxyzine Pamoate, Tramadol HCI, Savella, Acetaminophen,
Ibuprofen, and Promethazine. In July, Salsbury reported to
Dr. Anwuri that she had dry eyes and a sore mouth, and
requested to be checked for Sjogren's syndrome. Salsbury
also reported wrist pain and swelling, and multiple trigger
points that were tender upon exam. Dr. Anwuri diagnosed dry
eye syndrome, swelling of hands, edema, generalized muscle
weakness, and myalgia and myositis. She also referred
Salsbury to a rheumatologist.
August 2013, Salsbury saw Melinda Pemberton, FNP. Ms.
Pemberton's impressions were of fibromyalgia, abnormal
serum ACE level, gastroparesis, dry eyes, anxiety, and
depression. Tr. 363. Ms. Pemberton also observed significant
hyperalgesia both above and below the waist, and underlying
anxiety and depression. Tr. 364. She prescribed Savella and
Tramadol, discontinued Flexeril, Lortab, Zyrtec, Ibuprofen,
and Phenergan, and requested that Salsbury return to speak
with Dr. Bronson, a rheumatologist, about her fibromyalgia.
Id. Salsbury visited Dr. Bronson in September 2013,
where he diagnosed her with fibromyalgia, anxiety, and
depression. Tr. 357.
returned to Dr. Anwuri after visiting the rheumatologist.
Once again, Anwuri diagnosed fibromyalgia, but ruled out
osteoarthritis, rheumatoid arthritis, sarcoid, and lupus.
Other diagnoses at this visit included chronic fatigue
syndrome, costochondritis, myalgia and myositis, generalized
muscle weakness, DeQuervain's tenosynovitis, and
postherpetic neuralgia. Tr. 411.
2014 and 2015, Salsbury visited Dr. Anwuri on several
occasions. Each time, Salsbury complained of increasing pain
in her upper back and chest. Additionally, she reported
anxiety and depression, intermittent swelling in her hands
and feet, and fluctuating weight gain.
this time period, Salsbury also visited Kimberly Findley,
D.C., a chiropractor, for treatment of her back pain and
fibromyalgia. Tr. 462-96. Dr. Findley diagnosed thoracic
myofascitis and cervical torticollis, and chiropractic
manipulative therapy was administered. Tr/ 474. Although
treatment began in September 2012, Salsbury returned
primarily at two week intervals throughout 2013 and 2014,
until at least August 2015. In her reports, Findley often
indicated Salsbury was “feeling much better”
after treatments. Tr. 482-87.
2015, Salsbury visited David Ewing, M.D. for evaluation of
her migraines. Tr. 791. She reported pain that would last
three to four days, and would occur on an average of twenty
days a month. Id. Dr. Ewing's impression was
that it was chronic daily headaches rather than migraines,
perhaps caused by fibromyalgia, sleep disturbance, or a
combination of the two. Tr. 794. Dr. Ewing prescribed
Topamax, and at a follow up appointment in July 2015,
Salsbury reported just one head ache in the time since her
initial visit. Tr. 797.
2013, Salsbury visited Katherine Cole, D.O., a psychiatrist,
for an initial evaluation. Salsbury reported being
chronically depressed and struggling with not working. Tr.
432. She also complained of low energy, low motivation, and
anhedonia. Id. She frequently had panic attacks
triggered by stress, and a history of abuse from her
boyfriend and ex-husband. Dr. Cole diagnosed major depressive
disorder, generalized anxiety disorder, post-traumatic stress
disorder, and panic disorder without agoraphobia, and
prescribed BuSpar, Depakote, and Wellbutrin. Tr. 435.
returned to Dr. Cole in July 2013, reporting vertigo for the
past two-three weeks. At this appointment, Salsbury appeared
to be hypomanic with racing thoughts and rapid speech. Tr.
428. One month later, in August 2013, Salsbury visited Dr.
Cole once again. Tr. 418. This time she was doing a little
better, and her mood was stable. Id. She was anxious
due to being overwhelmed with all of her diagnoses, but she
was not depressed. Id. Dr. Cole increased
Salsbury's BuSpar prescription. Tr. 421.
visited Dr. Cole seven more times between September 2013 and
March 2015. At each visit, Dr. Cole diagnosed major
depressive disorder, generalized anxiety disorder,
post-traumatic stress disorder, panic disorder without
agoraphobia, and cognitive disorder likely related to chronic
pain and fatigue. Dr. Cole also prescribed BuSpar,
Wellbutrin, Depakote, and Adderall, though she increased and
decreased the dosages as necessary.
Smith, M.D., a State agency medical consultant, opined that
Salsbury could lift and/or carry 25 pounds occasionally, 10
pounds frequently; sit six hours; stand and/or walk two
hours; occasionally climb ladders, ropes, scaffolds, ramps,
and stairs; occasionally balance, stoop, kneel, crouch, and
crawl. Tr. 79-80. The ALJ gave this opinion little weight.
Skolnick, Psy.D., a non-examining, non-treating State agency
psychological consultant, opined that Salsbury had mild
restriction of activities of daily living, moderate
difficulties maintaining social functioning, and moderate
difficulties maintaining concentration, persistence, or pace.
Tr. 77-82. She also opined Salsbury could not perform complex
tasks or tolerate work that required contact with the public.
Dr. Skolnick also opined, however, that Salsbury retained the
capacity to understand, remember, and carry out at least
simple to moderately complex instructions and tasks. She also
opined that Salsbury could interact socially and adapt in a
setting that did not require close interpersonal interaction
with the public. The ALJ gave the opinion great weight
because Dr. Skolnick provided support for it, it is
consistent with the claimant's mental health treatment
records, and it considers the claimant's improvement with
the use of medication. Tr. 24.
Anwuri, M.D., Salsbury's treating physician, completed
two Physician's Residual Functional Capacity Assessments
with regard to Salsbury's physical limitations. In the
first, May 2014, she opined Salsbury could lift ten pounds
frequently and twenty-five pounds occasionally. Tr. 394. She
indicated Salsbury could sit less than one hour a day and
stand or walk less than two hours a day, but would need to
lie down or recline more than four hours a day. Id.
Dr. Anwuri checked boxes indicating Salsbury could use her
hands for repetitive simple grasping, but could not perform
other repetitive actions with her hands or arms. Id.
She checked boxes indicating Salsbury could occasionally
perform most postural activities, but could never squat.
Id. at 395. Dr. Anwuri checked boxes indicating
Salsbury's degree of pain and fatigue were debilitating,
and indicated that Salsbury would miss work more than three
times a month due to her impairments. Id.
second Physician's Residual Functional Capacity form,
dated September 2015, Dr. Anwuri opined that Salsbury could
sit up to five hours a day, though only for one hour at a
time. Tr. 820. She again checked boxes indicating Salsbury
could use her hands for repetitive simple grasping, but could
not perform other repetitive actions with her hands or arms.
Id. She indicated Salsbury could occasionally
perform most postural activities, but could never squat or
stoop. She also checked boxes indicating Salsbury could not
work around unprotected heights, moving machinery,
temperature changes, dust, fumes, or drive. Id. at
821. Again, Dr. Anwuri checked boxes indicating
Salsbury's fatigue and pain woud be debilitating.
Id. at 822. She also indicated Salsbury had poor or
no ability to deal with the stress of a low stress job, and
would miss work three times each month. Id.
The hearing before the ALJ
testified that she was thirty-seven years old and holds an
MBA in Human Resource Management, but had not worked since
her alleged onset date of January 25, 2013. Tr. 39-40.
Salsbury stated that extreme pain, extreme fatigue, cognitive
impairment, brain fog, and memory problems prevent her from
working. She reported pain everywhere, although she stated it
was most significant in her back, legs, and hips. Tr. 40.
testified that she could not sit or have anything touching
her back, and that it also hurt her to stand up or lean over.
Tr. 41. Salsbury reported that her pain continued to worsen,
and that she often experienced numbness and pain in her
fingers, toes, and feet. She estimated she could sit for up
to two hours, or walk for up to one hour, but neither
activity would be painless. Id. Salsbury also
reported balance issues, and stated that she needed a cane to
help her walk. Tr. 42. In addition to the physical pain,