Stone v. Astrue, No. 3:2011cv05039 - Document 16 (W.D. Mo. 2012)

Court Description: ORDER denying plaintiff's motion for judgment and affirming the decision of the Commissioner. Signed on 8/20/12 by Magistrate Judge Robert E. Larsen. (Wilson, Carol)

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Stone v. Astrue Doc. 16 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHWESTERN DIVISION VEDA STONE, Plaintiff, v. MICHAEL J . ASTRUE, Com m issioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) Case No. 11-50 39-CV-SW-REL-SSA ORD ER D EN YIN G PLAIN TIFF’S MOTION FOR SU MMARY JU D GMEN T Plaintiff Veda Stone seeks review of the final decision of the Com m issioner of Social Security denying plaintiff’s application for disability benefits under Titles II and XVI of the Social Security Act (“the Act”). Plaintiff argues that (1) the ALJ im properly form ulated plaintiff’s residual functional capacity, (2) the decisions m ade on rem and went beyond the scope of authority since the rem and order dealt only with fibrom yalgia, (3) the ALJ failed to develop the record by obtaining additional m edical evidence as to whether plaintiff m et Listing 12.0 7 for som atoform disorder,1 (4) the ALJ im properly rejected plaintiff’s testim ony that she cannot sit for m ore than 15 to 20 m inutes at a tim e, and (5) the ALJ failed to consider the im pact of plaintiff’s obesity on her ability to work. I find that the substantial evidence in the record as a whole supports the ALJ ’s finding that plaintiff is not disabled. Therefore, plaintiff’s m otion for sum m ary judgm ent will be denied and the decision of the Com m issioner will be affirm ed. 1 Som atoform disorders represent a group of disorders characterized by physical sym ptom s suggesting a m edical disorder. However, som atoform disorders represent a psychiatric condition because the physical sym ptom s present in the disorder cannot be fully explained by a m edical disorder, substance use, or another m ental disorder. Dockets.Justia.com I. BACK GR OU N D On J uly 15, 20 0 3, plaintiff applied for disability benefits alleging that she had been disabled since Septem ber 1, 1999. Plaintiff’s disability stem s from fibrom yalgia and neck problem s. Plaintiff’s application was denied initially and on reconsideration. On February 2, 20 0 5, a hearing was held before Adm inistrative Law J udge Linda Carter. On April 20 , 20 0 5, the ALJ found that plaintiff was not under a “disability” as defined in the Act. In Novem ber 20 0 5 the Appeals Council denied plaintiff’s request for review. On J anuary 3, 20 0 6, plaintiff filed an action in federal district court appealing the agency’s decision. Veda Stone v. J o Anne Barnhart, 0 6-50 0 1-CV-SW-NKL. Upon the request of agency counsel, the Appeals Council reconsidered its decision and requested rem and and reversal pursuant to sentence four of section 20 5(g), 42 U.S.C. § 40 5(g). On J une 13, 20 0 6, United States District J udge Nanette Laughrey granted the Com m issioner’s request (Tr. at 417-419). Upon receiving the district court’s order, the Appeals Council vacated the ALJ ’s April 20 , 20 0 5, decision and rem anded the case for further proceedings (Tr. at 422-424). A supplem ental hearing was held before Adm inistrative Law J udge Susan Blaney on J une 20 , 20 0 8, which included m edical expert testim ony. On Septem ber 30 , 20 0 8, the ALJ found plaintiff not disabled (Tr. at 394-40 3). The Appeals Council denied plaintiff’s request for review on February 24, 20 11. Therefore, the Septem ber 30 , 20 0 8, decision stands as the final decision of the Com m issioner. II. STAN D AR D FOR JU D ICIAL R EVIEW Section 20 5(g) of the Act, 42 U.S.C. § 40 5(g), provides for judicial review of a “final decision” of the Com m issioner. The standard for judicial review by the federal 2 district court is whether the decision of the Com m issioner was supported by substantial evidence. 42 U.S.C. § 40 5(g); Richardson v. Perales, 40 2 U.S. 389, 40 1 (1971); Mittlestedt v. Apfel, 20 4 F.3d 847, 850 -51 (8th Cir. 20 0 0 ); J ohnson v. Chater, 10 8 F.3d 178, 179 (8th Cir. 1997); Andler v. Chater, 10 0 F.3d 1389, 1392 (8th Cir. 1996). The determ ination of whether the Com m issioner’s decision is supported by substantial evidence requires review of the entire record, considering the evidence in support of and in opposition to the Com m issioner’s decision. Universal Cam era Corp. v. NLRB, 340 U.S. 474, 488 (1951); Thom as v. Sullivan, 876 F.2d 666, 669 (8th Cir. 1989). “The Court m ust also take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory.” Wilcutts v. Apfel, 143 F.3d 1134, 1136 (8th Cir. 1998) (citing Steadm an v. Securities & Exchange Com m ission, 450 U.S. 91, 99 (1981)). Substantial evidence m eans “m ore than a m ere scintilla. It m eans such relevant evidence as a reasonable m ind m ight accept as adequate to support a conclusion.” Richardson v. Perales, 40 2 U.S. at 40 1; J ernigan v. Sullivan, 948 F.2d 10 70 , 10 73 n. 5 (8th Cir. 1991). However, the substantial evidence standard presupposes a zone of choice within which the decision m akers can go either way, without interference by the courts. “[A]n adm inistrative decision is not subject to reversal m erely because substantial evidence would have supported an opposite decision.” Id.; Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988). III. BU R D EN OF PR OOF AN D SEQU EN TIAL EVALU ATION PR OCESS An individual claim ing disability benefits has the burden of proving he is unable to return to past relevant work by reason of a m edically-determ inable physical or m ental 3 im pairm ent which has lasted or can be expected to last for a continuous period of not less than twelve m onths. 42 U.S.C. § 423(d)(1)(A). If the plaintiff establishes that he is unable to return to past relevant work because of the disability, the burden of persuasion shifts to the Com m issioner to establish that there is som e other type of substantial gainful activity in the national econom y that the plaintiff can perform . Nevland v. Apfel, 20 4 F.3d 853, 857 (8th Cir. 20 0 0 ); Brock v. Apfel, 118 F. Supp. 2d 974 (W.D. Mo. 20 0 0 ). The Social Security Adm inistration has prom ulgated detailed regulations setting out a sequential evaluation process to determ ine whether a claim ant is disabled. These regulations are codified at 20 C.F.R. §§ 40 4.150 1, et seq. The five-step sequential evaluation process used by the Com m issioner is outlined in 20 C.F.R. § 40 4.1520 and is sum m arized as follows: 1. Is the claim ant perform ing substantial gainful activity? Yes = not disabled. No = go to next step. 2. Does the claim ant have a severe im pairm ent or a com bination of im pairm ents which significantly lim its his ability to do basic work activities? No = not disabled. Yes = go to next step. 3. Does the im pairm ent m eet or equal a listed im pairm ent in Appendix 1? Yes = disabled. No = go to next step. 4. Does the im pairm ent prevent the claim ant from doing past relevant work? No = not disabled. Yes = go to next step where burden shifts to Com m issioner. 4 5. Does the im pairm ent prevent the claim ant from doing any other work? Yes = disabled. No = not disabled. IV. TH E R ECOR D The record consists of the testim ony of plaintiff, vocational expert Barbara Myers, m edical expert Robert Karsh, M.D., and docum entary evidence adm itted at the hearing. A. AD M IN ISTR ATIVE R EPOR TS The record contains the following adm inistrative reports: Earn in gs Re co rd Plaintiff earned the following incom e from 1987 through 20 0 4: Year Incom e Year 1987 $ 513.21 1996 $ 2,532.44 1988 2,314.65 1997 42.63 1989 1,628.97 1998 4,565.39 1990 67.80 1999 1,355.40 1991 0 .0 0 20 0 0 832.60 1992 0 .0 0 20 0 1 0 .0 0 1993 2,518.62 20 0 2 0 .0 0 1994 1,20 1.45 20 0 3 0 .0 0 1995 4,10 6.87 20 0 4 0 .0 0 Incom e (Tr. at 69). D is ability Re p o rt - Fie ld Office On J uly 25, 20 0 3, plaintiff m et with a disability counselor who observed no difficulty with hearing, reading, breathing, understanding, coherency, concentrating, talking, answering, sitting, standing, walking, seeing, using her hands, or writing (Tr. at 5 75). “She was at m y desk for 1 1/ 2 hours without standing, but she did appear to be in pain.” (Tr. at 76). Claim an t Qu e s tio n n aire In a Claim ant Questionnaire com pleted on August 1, 20 0 3, plaintiff reported that she is able to prepare Ham burger Helper, frozen pizzas, chicken, m acaroni and cheese, m ashed potatoes, ham burgers and fries, tacos, steaks, and vegetables (Tr. at 94). Plaintiff can dust and she can fold clothes, but she m ust sit while doing that (Tr. at 94). It now takes plaintiff four m onths to crochet a blanket when she used to be able to finish one in a m onth (Tr. at 95). She drives about eight m iles twice a week. She goes out to eat for about an hour once in a while, and she takes her kids to the drive in for two hours. B. SU M M AR Y OF TESTIM ON Y During the February 2, 20 0 5, hearing, plaintiff testified as follows: Plaintiff was born in May 1971 and was 33 at the tim e of the adm inistrative hearing (Tr. at 496). She has a high school education and can read and write without difficulty (Tr. at 496). Plaintiff was 5’2” tall and weighed 116 pounds 2 (Tr. at 496). Plaintiff has a driver’s license but her husband drove her to the hearing (Tr. at 497). She can drive short distances to run errands, but for long distances her husband drives her (Tr. at 497). Plaintiff has three children who, at the tim e of this hearing, were 14, 12 and 10 (Tr. at 510 ). She does not take her kids to school or pick them up; she is not able to 2 I assum e this is a typographical error -- plaintiff argues she suffers from obesity, and her m edical records list her weight at generally 150 or above. I also note that the hearing transcript is fraught with typographical errors and m isspellings. 6 participate in any activities at school with them such as plays or parent/ teacher m eetings (Tr. at 510 ). Plaintiff does not exercise, but she did physical therapy back in 20 0 0 when she was hurt on the job (Tr. at 510 ). After the injury, plaintiff was diagnosed with fibrom yalgia and protruding disc in her neck, and she was awarded a worker’s com pensation settlem ent (Tr. at 510 -511). Since plaintiff’s alleged onset date of Septem ber 1, 1999, she worked in 20 0 0 , she filled out applications, and she babysat her nephew a few years ago (Tr. at 497). When he started getting bigger, she could not pick him up due to her back (Tr. at 497). Plaintiff last applied for a job in 20 0 2 (Tr. at 497). Plaintiff suffers from bad headaches and pain in her legs, necks and arm s (Tr. at 499). Her hands feel like they are swollen and they go num b (Tr. at 499). Plaintiff has been diagnosed with fibrom yalgia and m igraine headaches (Tr. at 499). The pain in her legs is caused by cold weather, walking up stairs, or walking around in a store (Tr. at 499). She also experiences pain when she is not doing anything (Tr. at 499). She described her pain as an 8 out of 10 without m edication and a 6 out of 10 with m edication (Tr. at 499-50 0 ). Hum idity causes leg pain as well (Tr. at 50 0 ). Plaintiff’s neck pain lasts every day m ost of the day (Tr. at 50 0 ). She rated her neck pain a 7 or 8 without m edication and a 4 or 5 with m edication (Tr. at 50 0 ). Plaintiff has arm pain and “half the tim e” when she tries to pick up a gallon of m ilk she drops it, and she drops dishes and other things because of her arm pain (Tr. at 50 1). Plaintiff’s arm pain is a 10 out of 10 in the m orning (Tr. at 50 1). A couple hours after she takes her m edication, the pain is reduced to a 5 out of 10 (Tr. at 50 1). 7 Plaintiff’s hands swell and go num b for about an hour or two every day (Tr. at 50 2). Her carpel tunnel syndrom e tests were negative; her doctors think the hand problem s m ay be due to fibrom yalgia (Tr. at 50 2). Whenever she tries to m ake a fist, her hands go num b (Tr. at 50 2). Her hand pain is about a 7 out of 10 without m edication and a 5 out of 10 a few hours after taking m edication (Tr. at 50 2-50 3). Plaintiff’s hands swell and hurt when she does dishes or brushes her hair (Tr. at 50 3). She can use her hands for 30 to 40 m inutes before the pain starts (Tr. at 50 3). Whenever she grips som ething, her hands feel num b and she will drop the item (Tr. at 50 3). This occurs four or five tim es a week, and plaintiff has broken a lot of her dishes by dropping them (Tr. at 50 4). She has to have her husband fasten her bra and tie her shoes for her (Tr. at 50 4). She cannot pick up sm all item s like coins (Tr. at 50 4). Plaintiff has headaches two or three tim es a week, but before she started on her headache m edicine (Atenolol) she got them constantly (Tr. at 50 4). She started taking that m edication in Novem ber 20 0 4 (Tr. at 50 4). Plaintiff’s m igraines last about three hours (Tr. at 50 5). When she gets a headache, she lies down in her bedroom and covers her eyes (Tr. at 50 5). Plaintiff can sit for 15 to 20 m inutes at a tim e and needs to keep her feet propped up (Tr. at 50 6). She could probably sit for four hours a day if she was able to get up and stretch (Tr. at 50 7). She can stand for 30 m inutes before needing a break and for a total of three hours a day (Tr. at 50 7). She can walk for ten m inutes at a tim e (Tr. at 50 7). Plaintiff needs to lie down three tim es a day for about 30 m inutes each tim e (Tr. at 50 750 8). 8 Plaintiff’s m edication m akes her drowsy, she gets “really bad” stom ach aches, and she cannot rem em ber things (Tr. at 498). If she takes her m edication at night instead of in the m orning, her stom ach is not so bad (Tr. at 498). She believes her m edication is m aking her teeth break but she has not gone to the dentist in a while because she cannot afford to go (Tr. at 50 5). Plaintiff cannot rem em ber how to do her ten-year-old’s hom ework, and she forgets what som eone says when she gets a phone call (Tr. at 50 5). She has left the stove on several tim es because she forgets that it is on (Tr. at 50 5). Plaintiff also loses concentration when her kids are trying to tell her som ething (Tr. at 50 8). During the J une 20 , 20 0 8, hearing, plaintiff testified; and vocational expert Barbara Myers and m edical expert Robert Karsh, M.D., also testified. 1. Plain tiff’s te s tim o n y. Plaintiff saw a rheum atologist in J anuary 20 0 6 but has not seen one since then (Tr. at 663). Her alleged onset date of Septem ber 1, 1999, was when she was unable to go to work because of her conditions, even though that was after her last insured date (Tr. at 668). At the tim e of the hearing, plaintiff was 37 years old and living with her husband and three children, ages 17, 16 and 14 (Tr. at 686-687). Plaintiff’s husband works in a factory (Tr. at 699). Plaintiff tried to return to work in 20 0 0 but was unable to bend over, clean, vacuum , pull up laundry, or push a cart (Tr. at 687-688). Her neck hurt and the pain went down her back (Tr. at 688). Plaintiff received $ 3,30 0 for the 8.2% whole body rating on her worker’s com pensation claim (Tr. at 688-689). Plaintiff previously worked in housekeeping at a 9 hospital and at a nursing hom e (Tr. at 690 -691). Plaintiff worked at Best Western Ram bler Motel as a dishwasher and cook for m ore than six m onths, although she only earned $ 2,50 0 -- she quit that job when she got pregnant (Tr. at 691). She worked at Nevada Care Centers for six m onths or m ore, but only earned $ 2,793 (Tr. at 692). Plaintiff has a high school education (Tr. at 689). She has never been to the Missouri Departm ent of Vocational Rehabilitation and has never tried to perform a sitdown job (Tr. at 689-690 ). Sitting in chairs bothers her back and her legs unless she has her feet up (Tr. at 690 ). Plaintiff can stand for about five m inutes before her back starts hurting and she has to sit down (Tr. at 692). Plaintiff can walk no m ore than half a city block because her legs, back, hips and knees hurt (Tr. at 693). In Septem ber 1999 plaintiff was not having problem s with her legs, knees, arm s and hips, but her feet hurt (Tr. at 693-694). Her condition has worsened and started affecting her in 20 0 2 (Tr. at 693-694). She can lift a half a gallon of m ilk, she can sit for 10 to 15 m inutes (Tr. at 694). Bending over causes her pain -- if she drops som ething, she has to bend down and support her knees or sit down in a chair and bend down to get it (Tr. at 694-695). Plaintiff is a sm oker but does not have difficulty breathing (Tr. at 695). She gets up around 6:0 0 a.m ., gets her kids up and off to school, takes her m edicine, lies down until around 9:30 because her m edicine m akes her drowsy, takes a shower, gets dressed, sits for about 30 m inutes with her legs up, watches television, does som e dishes about five m inutes at a tim e, and tries to dust (Tr. at 697-698). Her husband cooks, her kids do m ost of the dishes and they vacuum (Tr. at 698). Plaintiff can drive, but she only drives about eight m iles (Tr. at 698). Plaintiff used to crochet but cannot any longer 10 due to her hand pain (Tr. at 699). She last crocheted about three or four years ago (Tr. at 699). She used to fish, but has not done that in about three years (Tr. at 699). Plaintiff goes shopping with her children if she is having a good day (Tr. at 70 0 ). Her husband shops for groceries and som etim es her children shop for her (Tr. at 70 0 ). Plaintiff’s back pain is daily, and she rated it a 7 out of 10 in intensity (Tr. at 70 0 ). Lying down m akes it better, and when she sits she has to have her feet up and she uses a heating pad (Tr. at 70 1). Cold weather, bending, walking and standing too long cause her increased back pain (Tr. at 70 1). If she m oves wrong, she gets sharp pains in her neck (Tr. at 70 1). Her neck bothers her about three to four tim es a week (Tr. at 70 1). Her neck pain is exacerbated by any kind of m ovem ent, standing, pulling or pushing, or picking things up (Tr. at 70 1-70 2). She also alternates heat and cold (Tr. at 70 2). When plaintiff’s neck hurts, the pain radiates into her right arm and she cannot m ove it (Tr. at 70 7). This happens about twice a week (Tr. at 70 7). Plaintiff gets hip pain from walking or bending over (Tr. at 70 4). Som etim es her husband has to help her out of bed due to hip pain (Tr. at 70 4). Plaintiff’s hip pain is a 10 out of 10 in severity (Tr. at 70 4). Plaintiff gets m igraines when the weather changes (Tr. at 70 2). Plaintiff has m igraine headaches four to five tim es per week (Tr. at 70 2). When she gets a m igraine headache, she has to be in a room with no noise, she puts plugs in her ears, she puts ice packs on her head, she turns on a fan to keep the air going, and she puts up blankets to keep the light out (Tr. at 70 3-70 4). Plaintiff throws up when she has m igraine headaches (Tr. at 70 7). Plaintiff’s hands swell and get tingly, and she drops things easily because she cannot tell if she is holding onto som ething (Tr. at 70 5). This happens when she writes a 11 lot or when the weather is hum id or cold or hot (Tr. at 70 5). Plaintiff has five to six bad days a week (Tr. at 70 5). On bad days, her pain is a 10 out of 10 in severity (Tr. at 70 6). On a bad day, she cannot get in the shower, she cannot brush her hair, she cannot get dressed (Tr. at 70 6). On bad days, her daughter helps her get dressed (Tr. at 70 6). Plaintiff does not exercise, even though Dr. Kim has told her to (Tr. at 70 8). She tries to exercise by walking, but she can only walk a half a block (Tr. at 70 8). She did not participate in physical therapy like a rheum atologist recom m ended (Tr. at 70 8-70 9). She refused a physical therapy referral because she had tried it before and it m ade her back and neck worse (Tr. at 70 9). Plaintiff has done stretching exercises, but they do not help (Tr. at 710 ). 2. Me d ical e xp e rt te s tim o n y. Medical Expert Robert Karsh, M.D., testified at the request of the Adm inistrative Law J udge. Dr. Karsh is board certified in internal m edicine and rheum atology (Tr. at 669). After reviewing plaintiff’s m edical records, Dr. Karsh found that she suffers from neck and back pain since a 1999 injury; vom iting , nausea, dehydration, and diarrhea on one occasion; and “fibrom yalgia which has no listing but it’s closest relative is som atoform disorder, 12.0 7” (Tr. at 672). When asked why it was closest to som atoform disorder, Dr. Karsh testified that, “[F]ibrom yalgia is a condition for which there are no findings, no objective findings, and which is associated with depression and stress, and the sam e thing history of som atoform disorder. I’m not saying that fibrom yalgia is a som atoform disorder, but that’s the closest thing in the listing to it.” (Tr. at 672). 12 Plaintiff has a bulging disc -- an October 4, 20 0 4, MRI of her cervical spine showed findings of osteoarthritis and a disc bulge, but there was no stenosis 3 or narrowing of the param eter where the nerves exit (Tr. at 672-673). “That is im portant, because to satisfy disorders of the spine, you have to show evidence of nerve root com pression. And that was not present here. You also have to show that there is a loss of m otor function, and m uscle weakness resulting from this, and that was not true here either.” (Tr. at 673). Although there is m ention in a m edical record of a herniated disc, 4 that record was written by a nurse, not a doctor, and there are no x-rays or MRIs that confirm such a diagnosis; therefore, Dr. Karsh testified that it is not an accurate diagnosis (Tr. at 681-684). Plaintiff had a few hospitalizations for gastroenteritis; 5 however, “[t]hey did not specify whether this was due to stress and nerves, which can certainly do the sam e thing, or whether this was due to a virus or a bacterial infection” (Tr. at 674-675). Dr. Karsh explained the condition of fibrom yalgia: It was . . . a new word coined in 1990 by several experts who felt that they had a num ber of patients who suffered from chronic diffuse pain, but that were som ehow different in that they didn’t like to be poked. And so they said, m aybe we have a new disease here. 3 Cervical stenosis is a narrowing of the spinal canal in the neck area or upper part of the spine. This narrowing places pressure on the spinal cord. 4 The bones (vertebrae) that form the spine are cushioned by round, flat discs. When these discs are healthy, they act as shock absorbers for the spine and keep the spine flexible. If they becom e dam aged, they m ay bulge abnorm ally or break open (rupture), in what is called a herniated or slipped disc. 5 Gastroenteritis is a condition that causes irritation and inflam m ation of the stom ach and intestines (the gastrointestinal tract). 13 And they said there were 18 trigger points, which if you press with at least four kilogram s of pressure, that’s eight point eight pounds of pressure, the patient said that that was painful. Not that it was just tender, but it had to be painful. And they felt this was som ething different. They recognized that it often overlapped with fatigue, with irritable bowel, with sleep disorders, and with stress. And they also recognized that there were no objective findings. Indeed, the 18 trigger points were not objective findings because it depended upon the response, a subjective response of the patient, who says, yes it hurts in those areas. So it turned out to be a rather com m on, nonarticular disorder of unknown cause, characterized by achy pain, stiffness and sore m uscles, and areas of the tendon insertions as well as the m uscles, and adjacent soft tissue. The diagnosis is purely clinical. Treatm ent includes exercise, local heat, and drugs for pain and for sleep. It is [exacerbated] by environm ental or em otional stress, by poor sleep, by traum a, by exposure to dam pness or cold, or by a doctor who tells a patient that it’s quote, all in your head. That always m akes it worse too. Now, if it’s anything different from chronic pain, that is suffered by m any people. The leader of the group that form ulated this in 1990 was a Dr. Frederick Wolf. And there as an article quoting him on the J anuary 14, 20 0 8, New York Tim es. And what Dr. Wolf said was, quote, som e of us, in those days, thought that we had actually identified a disease which this clearly is not. And I go on to quote him , To m ake people ill. To give them an illness was the wrong thing. Unquote. And so he has sort of abdicated a diagnosis that he form ulated, and believes now that it is a chronic pain syndrom e that is closely related to stress. (Tr. at 676-677). Dr. Karsh testified that chronic pain syndrom es are m ade worse by excessive heat or cold, dam pness or excessive hum idity (Tr. at 679). There are no other lim itations caused by plaintiff’s fibrom yalgia (Tr. at 679). Chronic pain syndrom e consists of com plaints of pain for six m onths; fibrom yalgia is a chronic pain syndrom e (Tr. at 680 ). There are no objective findings for chronic pain syndrom e other than one that is caused by som ething that can be 14 diagnosed, such as the chronic pain that lasts for som e tim e after som eone has shingles (Tr. at 680 -681). 3. Vo catio n al e xp e rt te s tim o n y. Vocational expert Barbara Myers testified at the request of the Adm inistrative Law J udge. The first hypothetical involved a person who cannot work in extrem e hot or cold and could not work in extrem e hum idity such as outdoors (Tr. at 713). The vocational expert testified that such a person could not perform plaintiff’s past relevant work as a kitchen worker, but she could be a hospital cleaner (Tr. at 713). There are cleaning positions which are light (the hospital cleaner is a m edium -level job), D.O.T. 323.687-0 14, with 4,0 0 0 jobs in Missouri and 175,0 0 0 in the country (Tr. at 713). If a person could stand and walk for six hours per day and sit for six hours per day but could not work in extrem e hot or cold or extrem e hum idity, he could lift 20 pounds occasionally and 10 pounds frequently, he could perform the job of light cleaner (Tr. at 714). The next hypothetical involved a person who could sit six hours per day, stand and walk two hours per day but no prolonged walking, could lift ten pounds occasionally and five pounds frequently, could not work around extrem e cold or heat and no extrem e hum idity (Tr. at 714). The vocational expert testified that the person could not perform any of plaintiff’s past relevant work, but the person could be an order clerk, sedentary and unskilled, D.O.T. 20 9.567-0 14, with 1,0 0 0 jobs in Missouri and 75,0 0 0 in the country (Tr. at 714). The person could also work as an optical goods assem bler, also sedentary and unskilled, D.O.T. 713.687-0 18, with 50 0 in Missouri and 65,0 0 0 in the country (Tr. at 715). The person could worker as a credit checker, sedentary and 15 unskilled, D.O.T. 237.367-0 14, with 40 0 in Missouri and 50 ,0 0 0 jobs in the country (Tr. at 715). All of these jobs include a 10 - to 15-m inute break in the m orning and afternoon and a 30 -m inute lunch break (Tr. at 715). If a person had to lie down five days a week due to headaches, he could not work (Tr. at 715). If a person could only occasionally stoop, it would not affect the answers to the hypotheticals above (Tr. at 716). Plaintiff’s attorney asked the vocational expert if a person who was lim ited in m oving her head up and down could perform those jobs (Tr. at 716). The vocational expert responded, “I guess the only way I can answer that is, the jobs would require her to look down. You know, and I wouldn’t necessarily say m oving it up and down would be required, but in order to look down at your task, she would be looking down m ore than a third of the day” (Tr. at 716-717). If the person could only sit for 30 m inutes at a tim e before needing to get up, he could still perform the jobs m entioned above (Tr. at 717). C. SU M M AR Y OF M ED ICAL R ECOR D S On August 3, 1999, plaintiff was exam ined at Nevada Medical Clinic (Tr. at 134). “Veda was trying to lift up som e laundry from a wastebasket or trash basket. The sack adhered to the edges and she was using both hands to pull up. She sustained som e discom fort in the upper neck and back area. At the end of the day she had a headache and then she woke up today with severe stiffn ess in her neck. She tried to go to work but it was stiffening up and radiating down the left arm area. She has no weakness in the extrem ities, however.” Plaintiff had good range of m otion in her shoulders and 16 extrem ities, she had no neurosensory deficit, and she had good grip. She was diagnosed with cervical m uscle strain. The doctor prescribed Flexeril, a m uscle relaxer. She was told to stay off work “today and tom orrow but then return to work.” Three days later, on August 6, 1999, plaintiff returned for a recheck (Tr. at 134). She com plained of continued pain and swelling. The doctor ordered x-rays “which look okay.” The doctor told plaintiff to attend physical therapy for a couple of visits and follow up the following Monday to see if she was ready to return to work. Five days later, on August 11, 1999, plaintiff returned to the Nevada Medical Clinic for a recheck (Tr. at 134). She reported that physical therapy was “only very slightly helpful” and she com plained of continued pain. “It’s very difficult to tell subjectively how m uch difficulty she is having. She appears to be having significant trouble with it.” The doctor continued plaintiff on her m uscle relaxer and physical therapy and recom m ended she see an orthopedic surgeon. “We will keep her off work until she sees him or she is getting better.” Five days later, on August 16, 1999, plaintiff returned for a follow up (Tr. at 134). She continued to report pain and stiffness. The doctor ordered blood work and told her to follow up “with Dr. Ellefsen at the earliest appointm ent.” She was to continue her m uscle relaxer and physical therapy. Septem ber 1, 1999, is plaintiff’s alleged onset date. On October 15, 1999, plaintiff was seen by Matthew Karshner, M.D., for a second opinion (Tr. at 124-127). She is a 28 year old . . . fem ale who on 0 8/ 0 2/ 99, while lifting a bag of laundry out of a large garbage can or barrel, noted a twinge in her neck. Later that day, after finishing work and picking up her son, she noted pain in her neck. The next 17 day, she had increased pain in the neck, stiffness, feeling of swelling, which would worsen with m oving either arm . She saw Dr. Deem ; m edications were prescribed but unfortunately the patient did not receive benefit. She then noted pain com ing from her neck, going down her back, going to both hips, and down both legs. They would be worse with m ovem ent, som ewhat better with rest, but would not go away. She noted that cold weather m ade her feel worse, and that she had swelling and tingling in the fingers, tingling in the backs of the legs, with worsening with prolonged positioning, and bending/ lifting. Multiple regions hurt, including under the arm , and pectoral areas. She had problem s sleeping, and noted redness on her neck both in the front and back, and was having problem s holding on to objects. . . . Medications have . . . included Tylenol # 3 [narcotic], m uscle relaxer, along with Relafen,6 Robaxin 7 and Valium 8 from Dr. Ellefsen, whom she saw afterwards. He ordered an MRI, as she was not getting better after physical therapy which included ice, electrical stim ulation and m ovem ent of the legs without active strengthening. The MRI showed a sm all C56 disc protrusion by the report; she was scheduled for epidural steroid injection, has had two so far, and a third one is planned. She has not been to work since August. Plaintiff was taking Valium , Som a (m uscle relaxer), Lorcet (narcotic), and Relafen (non-steroidal anti-inflam m atory). She was sm oking 1 1/ 2 packs of cigarettes per day. Plaintiff reported working as a housekeeper doing heavy lifting. “The patient has been at Heartland for eight m onths by one report, two years by another. She has been off work since 0 8/ 29/ 99.” Plaintiff weighed 150 pounds. She was alert, oriented, and cooperative. All her joint ranges of m otion were norm al; she had norm al m uscle strength. She had 12 of 18 positive tender points. The patient’s film s are reviewed; the MRI shows a sm all disc bulge at C5-6 toward the right; all neuroforam ina are widely patent, and no nerve root, nor the spinal cord is im pinged. Dr. Karshner assessed “probable fibrom yalgia, but m ust rule out other possible cause.” 6 Non-steroidal anti-inflam m atory. 7 Muscle relaxer. 8 Used to relieve anxiety and m uscle spasm s. 18 He recom m ended blood work and, if that cam e back negative, physical therapy “for an active stretching and strengthening program ”. He recom m ended plaintiff continue with a m uscle relaxer and also use a low-dose tricyclic antidepressant to help with pain and sleep. “I believe she will be able to return to work in the near future, after the above recom m endations are put in to m otion. I do not recom m end any further epidural steroid injections, or any other im aging studies or invasive testing.” On October 29, 1999, plaintiff saw Dr. Karshner for a follow up (Tr. at 123). She could not tolerate Flexeril, the m uscle relaxer, due to nausea. She was sleeping better and felt a little better in general. On exam she had a “decrease in the num ber of tender points.” In the areas where plaintiff had pain, the level of pain was im proved. Plaintiff’s lab work was all norm al. Dr. Karshner assessed “fibrom yalgia, im proving” and switched plaintiff to Norflex instead of Flexeril. “The patient m ay return to work, lifting five pounds at a tim e, dressing warm ly, and avoiding drafts.” On J anuary 10 , 20 0 0 , plaintiff saw Dr. Karshner for a follow up (Tr. at 122). “She has not returned to work; her husband is working.” Plaintiff com plained of continued pain. “She is no longer taking Am itriptyline, 9 is not on a m uscle relaxer, and has not had any active physical therapy. She now has an attorney, who apparently arranged for this appointm ent.” Dr. Karshner perform ed an exam which was essentially norm al. “The patient exhibits significant anger and frustration throughout the interview, and is also confused, as she has been told that there are two cervical discs that are causing the problem . Review of her MRI showed a disc bulge at C5-6, with no cord or nerve root com pression. 9 A tricyclic antidepressant. 19 Review of the patient’s labs show they are all norm al.” Dr. Karshner assessed probable fibrom yalgia. He said she would benefit from a m uscle relaxer and again prescribed Norflex. He also told her she should restart Am itriptyline. “Modalities, com bined with active physical therapy, are recom m ended at this tim e as well.” Plaintiff “appear[ed] not to fully accept the diagnosis or the treatm ent plan.” On March 6, 20 0 0 , plaintiff saw Dr. Karshner for a follow up (Tr. at 121). Plaintiff reported that she was feeling no better. She was taking the Norflex and Am itriptyline. She reported feeling depressed but was not taking any anti-depressants. Plaintiff’s physical exam was norm al except she had a flat affect and m ultiple tender points. Dr. Karshner assessed fibrom yalgia and depression. He recom m ended plaintiff start Prozac. “The patient m ay work with a five pound lifting restriction at this tim e.” On March 20 , 20 0 0 , plaintiff saw Dr. Karshner for a follow up (Tr. at 120 ). Her worker’s com pensation did not approve the Prozac so she did not take it. Plaintiff was assessed with fibrom yalgia and depression. Plaintiff was told to continue the Am itriptyline and Norflex and Dr. Karshner gave her sam ples of Celexa.10 “I believe the patient can work lifting five pounds; if there is no work for her at this level, she is off work.” On April 28, 20 0 0 , plaintiff saw Dr. Karshner for a follow up (Tr. at 119). “She ran out of Celexa, Am itriptyline and Norflex and did not call. She went to the ER last week and received Tylenol # 3 [narcotic] and generic Flexeril [m uscle relaxer].” Plaintiff had norm al joint ranges of m otion and norm al strength. She had 11 positive tender 10 A selective serotonin reuptake inhibitor used to treat depression. 20 points. Dr. Karshner recom m ended plaintiff restart her m edication. “Lifting and work restrictions are unchanged.” On May 22, 20 0 0 , plaintiff saw Dr. Karshner for a follow up (Tr. at 118). “Overall she feels better. She does get som e increase in pain now and then with colder days. . . . Tender points num ber fewer than they did before. Ranges of m otion and neurological status are intact.” He assessed fibrom yalgia and depression, stable. He told her to continue her m edication and she could decrease her Am itriptyline to lessen m orning som nolence. “I believe the patient is fit for return to work at this tim e, lifting fifteen pounds, but she should lim it her stair clim bing to twice per hour.” On J une 16, 20 0 0 , plaintiff saw Dr. Karshner for a follow up (Tr. at 117). Plaintiff was working four hours a day and reported pain in her right neck base going into the shoulder and arm when she writes and sits. “She stopped Celexa about two weeks ago, and has not noted any change in m ood.” She was assessed with fibrom yalgia; depression, no recurrence with stoppage of m edication; and m yofascial pain, neck and shoulder girdle, with trigger points. Plaintiff had a steroid injection but becam e nauseous. “The patient m ay work, lifting up to 20 pounds, working four to six hours a day, and clim bing stairs no m ore than two to three tim es an hour.” On J une 30 , 20 0 0 , plaintiff saw Dr. Karshner for a follow up (Tr. at 116). Plaintiff continued to work four hours per day, but com plained of continued pain. “Physical Exam ination today shows less tenderness in the 18 areas accepted as fibrom yalgia tender points; ranges of m otion and strengths are the sam e. The patient is neurologically intact.” Dr. Karshner assessed fibrom yalgia and depression. He started 21 her on Effexor (treats depression) and told her to continue her Norflex and Am itriptyline. “The patient m ay work six hours a day”. On August 4, 20 0 0 , plaintiff saw Dr. Karshner for a follow up (Tr. at 115). “She does better with the Norflex and Am itriptyline as they continue, she is on the Effexor. . . She continues to have pain, states that at som e tim es she has difficulty walking. She is working about six hours a day m axim um .” Dr. Karshner perform ed a physical exam which showed “eight of the eighteen tender points today, which is less than necessary for fibrom yalgia; the other ten are nontender today. Affect is flat. The patient does not look at the exam iner during the exam ination or when talking.” He assessed fibrom yalgia type disorder, persistent but im proving by exam ination; and depression. He increased her Effexor and told her to continue her other m edications. “The patient will increase hours, when she returns in about two weeks I will have her up to seven hours per day. I will talk to the case m anager today regarding case disposition.” On Septem ber 1, 20 0 0 , plaintiff saw Dr. Karshner and com plained of continuing pain (Tr. at 114). “She continues to work, but has been on four hour days because she has to be hom e for her children, who com e hom e at noon secondary to the heat.” Plaintiff had m ore trigger points but appeared a little less depressed. “The patient will continue working, and work up to eight hours a day as tolerated; her weight restriction is raised to 25 to 30 pounds.” On Septem ber 13, 20 0 0 , plaintiff was seen by Deborah Asberry, RN, with com plaints of head and chest congestion (Tr. at 167). She weighed 162.8 pounds. Plaintiff was diagnosed with acute bronchitis and was given an Albuterol treatm ent. 22 On October 25, 20 0 0 , plaintiff was seen at the Nevada Medical Clinic for nausea and diarrhea (Tr. at 133). Plaintiff had previously had an ultrasound and CT of the abdom en which were norm al. “She does have som e tenderness in the right lower quadrant, but definitely no rebound or guarding. No referred pain. She is just tender here.” Plaintiff was diagnosed with gastroenteritis. “I suspect the patient has a virem ia 11 and m esenteric adenitis.12 Since the patient is afebrile [having no fever] with soft abdom en, negative lab and negative physical findings, I told her to stay on clear liquids and treat her viral infection.” On October 21, 20 0 2, plaintiff went to the em ergency room com plaining of right lower quadrant pain (Tr. at 138-139). An abdom inal series and pelvic ultrasound were norm al except showed a sm all ovarian cyst. Plaintiff was given Dem erol (narcotic) and Zofran (treats nausea and vom iting). She was started on Naprosyn (anti-inflam m atory); and Russell Kem m , D.O., assessed pelvic pain, right ovarian cyst, and tobacco dependence. Plaintiff was given prescriptions for Naprosyn and Lorcet (narcotic) as needed for pain. On J anuary 10 , 20 0 1, plaintiff saw Deborah Asberry, RN, and com plained of neck and back pain (Tr. at 161). “She has been in a long process of applying for disability or Workm an’s Com p. related injuries. . . . She is currently discussing the case with her 11 The presence of viruses in the blood. 12 Mesenteric adenitis, som etim es known as m esenteric lym phadenitis, refers to a condition in which the lym ph nodes in the m esentery of the abdom en becom e inflam ed. The m esentery is the tissue that connects the intestines to the internal lining of the abdom inal wall. Inflam m ation of the m esenteric lym ph nodes results in abdom inal pain, tenderness and fever. The m ost com m on cause of m esenteric adenitis is a viral infection within the intestines. 23 attorney. She is unclear if today’s visit should be on Workm an’s Com p or on her Medicaid Plus. . . . She sits in a slum ped position today. . . . She is currently only on Norflex [m uscle relaxer]. Has been out of anti-inflam m atory and antidepressant for som e tim e. Actually, she had told m e back in Septem ber she had com e off of these altogether and then states am ong the different providers she has seen, she had restarted briefly. She does not notice that great a relief from the anti-inflam m atories, however. She does not seem to be opposed to using an ti-inflam m atories or antidepressants, but is basically really wanting Norflex. We discussed today probably the need to stay away from narcotic pain m eds, as this is m ore chronic in nature. She is not exercising on any regular basis at the tim e and weight is still up.” Plaintiff had som e positive trigger points and som e m uscle tenderness. Ms. Asberry assessed fibrom yalgia and m uscle spasm , cervical area, related to C5-C6 herniated disk with paresthesia 13 to the right upper extrem ity. She provided plaintiff with sam ples of Celexa 14 and a prescription for that m edication, and she renewed plaintiff’s prescription for Norflex. “Briefly discussed starting physical therapy for flexibility and strengthening. Also encouraged her to begin a walking program , yoga or other exercise program . Patient wants to hold on PT”. On February 27, 20 0 1, plaintiff was seen by a nurse practitioner, Diane Valentine, with com plaints of a headache, nausea, and abdom inal cram ping (Tr. at 160 ). Plaintiff 13 A sensation of num bness or tingling on the skin. 14 A selective serotonin reuptake inhibitor used to treat depression. 24 had som e abdom inal tenderness with no rebound or guarding.15 Urinalysis was norm al; com plete blood count was norm al. Plaintiff was told to take Tylenol for her headache and was given Phenergan for nausea. Two and a half years later, on J uly 15, 20 0 3, plaintiff applied for disability benefits in the instant case. On October 13, 20 0 3, plaintiff was exam ined by DDS physician, Tim othy Sprenkle, D.O. (Tr. at 246-250 ). She has a clinical history of sm oking one pack of cigarettes per day. She sm ells like a lot heavier as far as m y olefactory sense. I believe she has greater than 15 pack years of sm oking. She denies alcohol consum ption. . . . She previously worked at Heartland Medical Center where she seem ed to incur som e type of workm en’s com p injury which involved her neck and right upper extrem ity. She was deem ed to have a C-5 C-6 disc. I see no radiographic test here at the tim e of exam ination, but apparently there was som e type of herniated disc nerve im pingem ent with right upper extrem ity radiculopathy. During that workup she saw Dr. Deem , Dr. Ellefsen an Dr. Karshner for the workm en’s com p. She also has seen her fam ily physician, Dr Russell Kem m . Again, reviewing the m edical records that I have present, patient does not seem to have received any epidural injections, did not receive EMG testing. I do not have results of the MRI testing that she had on her neck area. Patient is continuing with current neck type pain and discom fort that is now persistent in the right upper extrem ity as well as into the left upper extrem ity. . . . PAST MEDICAL HISTORY: As stated above, history of her neck injury at Heartland in the year 20 0 0 , which has been worked up by Drs. Karshner, Ellefsen and Deem . With som e type of C-5, C-6 disc phenom ena. Currently, there is no radiographic support during this exam ination. Patient also has a m edical history of fibrom yalgia that was diagnosed by Dr. Karshner as well as her fam ily physician, Dr. Russell Kem m . Patient denies any other type of m edical problem s. Other than her current pain and arthralgias [joint pain], she has chronic pain up 15 Guarding occurs when a person subconsciously tenses the abdom inal m uscles during an exam ination. Voluntary guarding occurs the m om ent the doctor’s hand touches the abdom en. Involuntary guarding occurs before the doctor actually m akes contact. A doctor tests for rebound tenderness by applying hand pressure to a patient’s abdom en and then letting go. Pain felt upon the release of the pressure indicates rebound tenderness. 25 and down her back as well as in her joints, predom inantly in her hands and feet regions. . . . GENERAL: 5'2", 162 pound white fem ale. She is 32 years of age. Appears to be m uch older than her stated age. . . . EXTREMITIES: . . . Grip strength is exceptionally poor. She exhibits no effort at all at any grip or m uscle strength testing. I have to believe that at this tim e this patient is not putting any effort at all as she shows m ore strength when she walks than she does when pushing against m y hand in strength resistance exercises. . . . The hand can be fully extended as well as a fist being m ade with fingers put in opposition, however grip strength is exceptionally poor with exceptionally poor effort by this patient. . . . She again, exhibits lower extrem ity weakness m arkedly, with very poor effort put into it. Upon squatting, patient is unable to get back into standing position without help. She is unable to relieve herself from forward flexion while standing down thru her ankles without help getting up. Location of 10 or m ore points with fibrom yalgia, patient seem s to be tender everywhere that a finger is palpated on her body. She exhibits no signs of not having any tenderness at any joint present. . . . Patient did exhibit positive Tinels 16 and Phalen’s sign 17 of the upper extrem ities. MENTALLY: Patient has extrem ely poor affect in the office. Indeed, she seem s to be down and depressed. She does not sm ile, she does not show any infliction in her voice, it is rather m onotone. . . . IMPRESSIONS: 1. Fibrom yalgia 2. Questionable history of C-5, C-6 cervical disc with radiculopathy unproven with lack of radiological docum entation 3. Chronic headaches 16 Tinel’s sign is positive when lightly banging (percussing) over the nerve elicits a sensation of tingling, or “pins and needles,” in the distribution of the nerve. For exam ple, in carpal tunnel syndrom e, where the m edian nerve is com pressed at the wrist, the test for Tinel’s sign is often positive, eliciting tingling in the thum b, index, and m iddle fingers. 17 Placing the backs of both hands together and holding the wrists in forced flexion for a full m inute. If this produces num bness or “pins and needles” along the thum b side half of the hand, the patient m ost likely has m edian nerve entrapm ent (Carpal Tunnel Syndrom e). 26 4. 5. 6. 7. 8. 9. Endogenous depression 18 Tobacco addiction Bilateral carpal tunnel syndrom e Gross obesity Possible Raynaud’s phenom enon 19 vs RSD20 vs Wagner’s [sic] granulom a disease 21 Degenerative joint disease with osteoarthritis This com pletes this disability physical at this tim e. I believe this patient needs further neurosurgical workup, if possible neurological workup as well as psychiatric counseling. She currently needs bilateral EMG testing [for carpal tunnel syndrom e] as well as a recurrent MRI, a review of her MRI results. Possibly a current lab work to review her cholesterol values, and she needs to place herself on a weight loss diet as well as sm oke cessation. She exhibits very poor work effort, I believe this could be im proved with use of psychiatric counseling and for care of her fibrom yalgia. A year later, on October 14, 20 0 4, plaintiff had an MRI of the cervical region due to com plaints of paresthesias in both arm s (Tr. at 289). Mild bulging of C5-6 an C6-7 was noted. Very m inim al bulging of C4-5 was noted. “[N]o true spinal stenosis [narrowing] is seen. The spinal cord itself appears norm al.” 18 A type of depression caused by an intrinsic biological or som atic process rather than an environm ental influence, in contrast to a reactive depression. 19 Raynaud’s phenom enon is a condition in which cold tem peratures or strong em otions cause blood vessel spasm s that block blood flow to the fingers, toes, ears, and nose. 20 Reflex sym pathetic dystrophy (“RSD”) is a condition that features a group of typical sym ptom s, including pain (often “burning” type), tenderness, and swelling of an extrem ity associated with varying degrees of sweating, warm th and/ or coolness, flushing, discoloration, and shiny skin. 21 Wegener’s granulom atosis (“WG”) is a rare disease of uncertain cause. It is characterized by inflam m ation in a variety of tissues, including blood vessels (vasculitis). Inflam m ation dam ages vital organs of the body. WG prim arily affects the upper respiratory tract (sinuses, nose, trachea [upper air tube]), lungs, and kidneys. Any other organ in the body can be affected as well. 27 On October 26, 20 0 4, David Paff, M.D., exam ined plaintiff at the request of the Division of Fam ily Services (Tr. at 30 1-30 2). HISTORY: . . . She last worked in 20 0 0 for Heartland Hospital in housekeeping for one year. Prior to that she worked in a restaurant doing dishes. She apparently needed light duty and there was none, so she was term inated. She has never used illegal drugs or alcohol. She has sm oked a pack of cigarettes a day for 20 years. ***** She had a neck injury in 1999 while picking up laundry. She saw a Workers’ Com pensation doctor and currently is seeing a neurosurgeon in Colum bia. She has been told that she has a pinched nerve. She had an MRI that showed a protruding disc. There was no recom m endation for surgery. She has been given Flexeril and m ay have epidurals. The pain com es and goes. . . . She has com plaints of pain in her knees, legs, feet, and arm s, which com es and goes, especially with changes in the weather. . . . She is not depressed -- she just feels tired. She was given a diagnosis of fibrom yalgia in 20 0 0 . She has frequent headaches in the posterior neck and occiput [back of the head]. She also has headaches below her left ear and does have som e dizziness and nausea with the headaches. She has abdom inal pain that com es and goes. ***** MEDICATIONS: Am itriptyline, Naprosyn, and Flexeril. PHYSICAL EXAMINATION: Exam ination reveals a pleasant, cooperative, obese lady in no distress. (Tr. at 30 1). Plaintiff weighed 170 pounds and was 5'2" tall (Tr. at 30 1). Dr. Paff observed that plaintiff m oved very slowly and appeared quite sad. She was able to walk on her toes and squat 50 % of norm al but with pain. She had good range of m otion in her lum bosacral spine, cervical spine and shoulders. She was tender “every place I touch her, including the areas for fibrom yalgia, but m uch m ore.” She had very weak grips: “She does not appear to be trying.” X-ray of plaintiff’s cervical spine was norm al. She 28 had increased triglycerides (365) 22 and decreased HDL (21).23 Pulm onary function testing was norm al. SUMMARY: . . . She m ay have fibrom yalgia, but it hurts every place that I touch her, which is of concern as to validity. She had a neck injury in 1999. I doubt if she is ever going to be able to work. She is disabled. (Tr. at 30 2). On Novem ber 8, 20 0 4, plaintiff saw Shahzad Khan, M.D., for a follow up on tingling in her arm s (Tr. at 311-312). Plaintiff had a nerve conduction study which showed evidence of m ild left ulnar neuropathy24 at the elbow. An MRI of her cervical spine showed m ild degenerative joint disease. “She has alm ost constant neck pain and has been having headaches for about 5+ years. She denies any radiation of her neck pain to her extrem ities. She occasionally notices som e num bness and tingling of her upper extrem ities. Her headaches usually occur a least 2-3 tim es in a week.” Dr. Khan perform ed a physical exam . He observed plaintiff to be pleasant, slightly obese, alert, oriented, with a good attention span. She had norm al coordination, norm al gait, and norm al station. Her m otor strength was good. Dr. Kahn assessed 22 A type of fat in the blood. Norm al is below 150 . 23 High-density lipoproteins. These lipoproteins are often referred to as “good,” cholesterol. They act as cholesterol scavengers, picking up excess cholesterol in the blood and taking it back to the liver where it is broken down. The higher the HDL level, the less “bad” cholesterol there will be in the blood. Norm al for wom en is between 40 and 60 , but above 60 is desirable. Exercise increases HDL. 24 Ulnar neuropathy is an inflam m ation or com pression of the ulnar nerve, resulting in paresthesia (num bness, tingling, and pain) in the outer side of the arm and hand near the little finger. 29 cervical spondylosis 25 and m igraine headache without aura.26 He prescribed Neurontin,27 and told her to use Migraine Excedrin or Lodine 28 for her headache. Two years later, on Novem ber 1, 20 0 6, plaintiff underwent an overnight sleep study (Tr. at 577). Afterward she was diagnosed with restless legs syndrom e and physiological sleep disorder not otherwise specified. “This sleep study does not dem onstrate significant sleep apnea or other specific abnorm alities. . . . [S]leep efficiency was norm al without significant wakefulness after sleep onset. . . . Further evaluation of restless legs is warranted, although periodic lim b m ovem ents were not dem onstrated. The patient should be cautioned with regard to driving or operating any hazardous m achinery until daytim e sleepiness can be resolved.” About eight m onths later, on J une 26, 20 0 7, plaintiff was seen at Nevada Regional Medical Center by Russell Kem m , D.O., after com ing to the em ergency room for dehydration (Tr. at 60 4-60 5). She was given IV m orphine (narcotic) and IV Toradol29 and started on a full liquid diet. A CT of her abdom en and pelvis were obtained which were norm al, as was her blood work. “Her affect was extrem ely flat at 25 Cervical spondylosis is caused by chronic wear on the cervical spine. This includes the disks or cushions between the neck vertebrae and the joints between the bones of the cervical spine. There m ay be abnorm al growths or “spurs” on the bones of the spine (vertebrae). 26 “Migraine without aura” is a relatively new nam e for the m ost com m on type of m igraine headache. It is also called a com m on m igraine. These m igraines do not have an aura. Aura is the nam e for early unusual sym ptom s som e people notice shortly before a m igraine starts. 27 Treats seizures and nerve pain. 28 A non-steroidal anti-inflam m atory. 29 A non-steroidal anti-inflam m atory. 30 the tim e of discharge. She was advised of the norm ality of her x-rays and lab work. She was advised of the elevated glucose [blood sugar] and was offered counseling regarding this which she did decline.” No m edications were prescribed. “It was em phasized at great length the need to avoid concentrated sweets, the im pact of m etabolic syndrom e 30 and the possibility of the developm ent of diabetes. She was totally reluctant to discuss any dietary intervention.” V. FIN D IN GS OF TH E ALJ Adm inistrative Law J udge Susan Blaney entered her opinion on Septem ber 30 , 20 0 8 (Tr. at 394-40 3). Plaintiff’s insured status expired on March 31, 1999, which is before her alleged onset date of disability (Tr. at 395, 396-397, 663-668). Step one. Plaintiff has not engaged in substantial gainful activity since her alleged onset date (Tr. at 397). She earned $ 832 in 20 0 0 which is below the substantial gainful activity level (Tr. at 397). Step two. Plaintiff has the following severe im pairm ents: neck and back problem s since a 1999 work injury, recent vom iting and diarrhea problem and fibrom yalgia (Tr. at 397). Plaintiff’s m ental im pairm ent is not severe (Tr. at 399). 30 Metabolic syndrom e is a nam e for a group of risk factors that occur together and increase the risk for coronary artery disease, stroke, and type 2 diabetes. Researchers are not sure whether the syndrom e is due to one single cause, but all of the risks for the syndrom e are related to obesity. The two m ost im portant risk factors for m etabolic syndrom e are extra weight around the m iddle and upper parts of the body and insulin resistance, in which the body cannot use insulin effectively. Insulin is needed to help control the am ount of sugar in the body. As a result, blood sugar and fat levels rise. 31 Step three. Plaintiff’s im pairm ents do not m eet or equal any listed im pairm ents (Tr. at 397-398, 40 0 ). “At the hearing, claim ant, by and through her attorney, stated she was not contending her condition m eets or m edically equals any listing. Moreover, as noted above, the m edical expert testified that the claim ant’s im pairm ents do not m eet or equal a listing.” (Tr. at 40 0 , 663). Step four. Plaintiff has the residual functional capacity to perform light and sedentary work. She can stand and/ or sit for six hours a day, she can lift 20 pounds occasionally and 10 pounds frequently, she cannot work in extrem es of tem perature or excessive hum idity (Tr. at 40 0 ). With this residual functional capacity, plaintiff can perform her past relevant work as a hospital cleaner and nursing hom e cleaner at the light level (Tr. at 40 2). Step five. Even if plaintiff were not able to perform her past relevant work, she could work as an order clerk, an optical goods assem bler, or a credit checker, all available in significant num bers (Tr. at 40 2-40 3). VI. SCOPE OF AU TH OR ITY ON R EM AN D Plaintiff argues that the rem and order issued by J udge Laughrey on J une 13, 20 0 6, directed the Com m issioner to reconsider the evidence regarding plaintiff’s fibrom yalgia only, and that the ALJ erred in reviewing plaintiff’s entire case. The reason for rem and is im portant because it holds all other determ inations m ade by the first ALJ to be the law of the case. Of im portance is the findings m ade by the first ALJ regarding Plaintiff’s severe im pairm ents and the relative restrictions. The first ALJ found that Ms. Stone had severe im pairm ents of cervical spondylosis and m ajor depressive disorder. She also determ ined that Plaintiff was additionally lim ited to no significant unprotected heights; no potentially dangerous and/ or unguarded m oving m achinery; no com m ercial driving; no exposure to extrem e vibration; even surfaces on which to walk; sim ple, repetitive, (1-3 step instructions); and no public contact. 32 These restrictions are im portant because they rule out Plaintiff’s ability to perform the work found suitable by the ALJ (hom e cleaner, order clerk, optical goods assem bler, and credit checker). Plaintiff offers no legal authority for her position that an ALJ , on rem and, has the extrem e restrictions set out in plaintiff’s brief. The Law of the Case doctrine prevents settled issues from being relitigated. VanderMolen v. Astrue, 630 F. Supp.2d 10 10 (S.D. Iowa 20 0 9), United States v. Bartsh, 69 F.3d 864 (8th Cir. 1995). However, for an issue to be “settled,” the court m ust have m ade a ruling. In this case, there were no factual findings m ade by the court, nor did the Com m issioner concede any issues. In fact, the district court reversed and rem anded this case sim ply for “further proceedings.” The prior adm inistrative decision was vacated, m eaning that it was rescinded and is no longer in effect. Therefore, it was not error for the ALJ to review the record and address the evidence. On J une 13, 20 0 6, the district court granted Com m issioner's J une 9, 20 0 6, m otion to rem and. In granting the Com m issioner’s m otion, J udge Laughrey recognized that the ALJ would reconsider the evidence concerning plaintiff’s fibrom yalgia “and related issues.” (Tr. at 418). J udge Laughrey then reversed and rem anded the case sim ply “for further proceedings.” Therefore, the district court did not rule on any facts, and no issues were settled by a reversal and rem and “for further proceedings.” The Law of the Case doctrine sim ply does not apply here. On August 18, 20 0 6, the Appeals Council vacated ALJ Linda Carter’s decision and rem anded the case, which was subsequently assigned to ALJ Susan Blaney, to m ake clear findings regarding whether plaintiff’s fibrom yalgia is a m edically determ inable im pairm ent and, if so, whether it is a “severe” im pairm ent as defined in the 33 Com m issioner’s regulations. The ALJ was further directed to state what credible lim itations resulted from plaintiff’s fibrom yalgia. The Appeals Council ordered the ALJ to take “appropriate action” to resolve the issues surrounding plaintiff's fibrom yalgia, as well as any other issues the ALJ found appropriate, in accordance with applicable Social Security Adm inistration regulations and rulings (Tr. at 423). The Appeals Council stated that the ALJ should obtain updated m edical records from treating and other m edical sources, including clinical findings, test results, and m edical source statem ents about what plaintiff could do despite her im pairm ents. The ALJ was instructed that if the evidence did not adequately clarify the record, she should recontact the m edical source(s) for further inform ation. Finally, the Appeals Council stated that the ALJ should, if necessary, obtain a consultative physical and/ or m ental status exam ination, including a m edical source statem ent. The ALJ was further instructed to obtain evidence from a m edical expert to clarify the nature and severity of plaintiff’s im pairm ent, if necessary. Supplem ental vocational expert evidence was ordered, if warranted by the expanded record. The ALJ in this case com plied with the Appeals Council’s directives. Therefore, plaintiff’s m otion for judgm ent on this basis will be denied. VII. CR ED IBILITY OF PLAIN TIFF Plaintiff argues that the ALJ erred in finding that plaintiff’s testim ony was not credible. She states that the ALJ im properly discounted her testim ony that she can only sit for 15 to 20 m inutes at a tim e “because she ‘sat at the hearing for about an hour before she stood up,’ and after showering in the m orning, “she sits for 30 m inutes with her feet up.’” Plaintiff then estim ates that the hearing lasted about 45 m inutes because “m ost hearings are set for one-hour intervals”, and plaintiff asked if she could stand up 34 on page 27 of a 62-page transcript. Therefore, when the estim ated 45-m inute hearing is divided in half (22.5 m inutes), and plaintiff asked to stand up BEFORE the halfway m ark of the transcript, then she likely asked to stand up at the “20 -m inute m ark, which is perfectly consistent with her statem ent.” Plaintiff’s argum ent is without m erit. The attorney drafting plaintiff’s brief was not the sam e attorney at the adm inistrative hearing. The ALJ was there, and therefore the ALJ m ade a finding consistent with her own observation during the hearing. Additionally, I note that plaintiff was able to sit with a disability counselor for an hour and a half without standing -- a note that was specifically written on the adm inistrative form . Plaintiff would not need to ask perm ission to stand in such a situation; therefore, it can be assum ed that her sitting for 90 m inutes without standing up was because she was perfectly capable of doing so. On February 2, 20 0 5 -- five and a half years after her alleged onset date -- she testified that she can sit for 30 m inutes at a tim e. The credibility of a plaintiff’s subjective testim ony is prim arily for the Com m issioner to decide, not the courts. Rautio v. Bowen, 862 F.2d 176, 178 (8th Cir. 1988); Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir. 1987). If there are inconsistencies in the record as a whole, the ALJ m ay discount subjective com plaints. Gray v. Apfel, 192 F.3d 799, 80 3 (8th Cir. 1999); McClees v. Shalala, 2 F.3d 30 1, 30 3 (8th Cir. 1993). The ALJ , however, m ust m ake express credibility determ inations and set forth the inconsistencies which led to his or her conclusions. Hall v. Chater, 62 F.3d 220 , 223 (8th Cir. 1995); Robinson v. Sullivan, 956 F.2d 836, 839 (8th Cir. 1992). If an ALJ explicitly discredits testim ony and gives legally sufficient reasons for doing so, the 35 court will defer to the ALJ ’s judgm ent unless it is not supported by substantial evidence on the record as a whole. Robinson v. Sullivan, 956 F.2d at 841. In this case, I find that the ALJ ’s decision to discredit plaintiff’s subjective com plaints is supported by substantial evidence. Subjective com plaints m ay not be evaluated solely on the basis of objective m edical evidence or personal observations by the ALJ . In determ ining credibility, consideration m ust be given to all relevant factors, including plaintiff’s prior work record and observations by third parties and treating and exam ining physicians relating to such m atters as plaintiff’s daily activities; the duration, frequency, and intensity of the sym ptom s; precipitating and aggravating factors; dosage, effectiveness, and side effects of m edication; and functional restrictions. Polaski v. Heckler, 739 F.2d 1320 , 1322 (8th Cir. 1984). Social Security Ruling 96-7p encom passes the sam e factors as those enum erated in the Polaski opinion, and additionally states that the following factors should be considered: Treatm ent, other than m edication, the individual receives or has received for relief of pain or other sym ptom s; and any m easures other than treatm ent the individual uses or has used to relieve pain or other sym ptom s (e.g., lying flat on his or her back, standing for 15 to 20 m inutes every hour, or sleeping on a board). The specific reasons listed by the ALJ for discrediting plaintiff’s subjective com plaints of disability are as follows: [C]laim ant has very low earnings during her life. Her highest annual earnings are $ 4565 which she earned in 1998. Her next highest annual earnings are $ 410 6 in 1995. Other years show earnings of $ 250 0 or less. Thus, claim ant bas been essentially out of the work force, or participated m arginally for m any years without any allegation of disability which does not support a finding that she is highly m otivated to work. 36 ***** [C]laim ant testified that she filed a workers’ com pensation claim as a result of her job injury in 1999, for which she received an 8.2% whole body rating according to Exhibit 3D, page 4. This low rating does not support an allegation of inability to perform all work. She further testified that she has not been to the Missouri Departm ent of vocational Rehabilitation. ***** The claim ant has a poor earnings record which indicates that the claim ant m ay have low m otivation to work. She also testified that she has not even tried to do a sit down job, adding that just sitting hurts her back and legs and she has to have her feet propped up. However, nothing in the record supports these significant restrictions. While the claim ant com plains of severe back pain, neck “episodes,” and arthritic pain, physical exam ination in J anuary 20 0 6 showed no swelling or synovitis of any joints and full m uscle strength of all lim bs. Also, all laboratory tests were norm al. Moreover, treatm ent notes and continuous use of m edications indicate that her sym ptom s are adequately treated with m edication. The rheum atologist at the University of Missouri who exam ined the claim ant in J anuary 20 0 6 advised the claim ant to increase aerobic exercise and recom m ended physical therapy and m yofascial stretching exercises, which the claim ant declined. The doctor also stated that the claim ant would benefit from m uscle strengthening and range of m ovem ent exercises for her neck and low back pain, but apparently the claim ant has not done this. The claim ant’s failure to follow prescribed m edical treatm ent is inconsistent with com plaints of disabling pain. Without good reason, failure to follow prescribed treatm ent is grounds for denying an application for benefits. Roth v. Shalala, 45 F.3d 279, 282 (8th Cir. 1995). Furtherm ore, no treating doctor has opined restrictions for the claim ant. The m edical expert opined that the only lim itation supported by the m edical records and objective evidence is that the claim ant should not work in environm ents with dam pness, excessive heat or excessive cold, as these environm ents exacerbate chronic pain syndrom e. At the hearing, the claim ant testified that she was bothered by headaches three to four tim es a week. However, this allegation is inconsistent with the m edical records which indicate only sporadic treatm ent for headaches. She is treated with Skelaxin, which helps in alleviating her headaches. Overall, the undersigned finds that the claim ant’s subjective com plaints are out of proportion to the objective findings in this case. At the hearing, claim ant testified that her condition has worsened since 1999 in that she has m ore pain now in her feet, arm s, and hips. This has been the case 37 since 20 0 2 according to her testim ony. She cannot now lift m ore than one-half gallon of m ilk and can sit only 10 to 15 m inutes before she has to stand up. It hurts to bend over and thus she has to squat or sit down to pick som ething up off the floor. She is a sm oker but has no difficulty breathing according to her testim ony. With regard to her activities of daily living, she awakens at 6:0 0 AM to get her kids off to school. They are ages 14, 16 and 17, and all three live at hom e with her. She then takes her m edicine and lays [sic] down until 9:30 AM because her m edication m akes her drowsy. She takes a shower and then sits for 30 m inutes with her feet up due to problem s walking. She som etim es does the dishes but does not cook, her husband does that. She straightens the house and tries to dust. The kids vacuum . She drives an autom obile with the furthest distance she has driven in the last year being 8 m iles. She attends som e school functions and goes shopping with her children. She does not crochet anym ore, nor does she go fishing with her children. Her husband takes them fishing now because it hurts her back and legs to go fishing. Claim ant’s description of her activities of daily living do not preclude the perform ance of sedentary work. Furtherm ore, the overall evidence indicates that the claim ant is physically capable of at least light work. While the claim ant stated that she can only sit for 10 to 15 m inutes, she sat at the hearing for about an hour before she stood up. In addition, even though she testified that she could only sit for 10 to 15 m inutes, she later said that, after she takes a shower in the m orning, she sits for 30 m inutes with her feet up. This testim ony is inconsistent with the earlier allegation that she could only sit 10 to 15 m inutes. (Tr. at 397-399, 40 0 -40 1). Plaintiff’s adm inistrative hearing testim ony included the fact that in Septem ber 1999 -- her alleged onset date -- she was not having problem s with her legs, knees, arm s or hips, but her feet hurt (Tr. at 693-694). She also testified that her condition started affecting her in 20 0 2 -- three years after her alleged onset date. Plaintiff testified that her hip pain is a 10 out of 10 in severity, yet the ALJ did not note any distress during the hearing and in nearly all of plaintiff’s m edical records she was described as being in no apparent distress. Clearly she exaggerated the severity of her pain. Plaintiff testified that she has five to six bad days per week, and that on bad days her pain is a 10 out of 10 38 in severity. Yet if that were true, one would expect to see either a lot of canceled m edical appointm ents due to such severe pain or doctors observing that plaintiff appeared to be in great distress due to such severe pain. Neither happened. Plaintiff does not exercise, even though she has been told by her treating doctors that exercise will help her condition. Plaintiff refused to participate in physical therapy as recom m ended by her rheum atologist. For nearly a year, she was released to return to work but did not for a long period of tim e and even when she did return to work she worked fewer hours than the doctor said she could because she had to be hom e for her children. Plaintiff has incredibly low earnings during her entire adult life, with $ 4,565.39 being her top earnings for any year. She earned m ore than $ 2,0 0 0 in only five years from 1987 through 20 0 4. The ALJ noted that plaintiff’s earnings record suggests that she has never been m otivated to work outside the hom e and that suggests that her failure to work now is based on som ething other than her m edical condition. Plaintiff’s physical exam s were essentially norm al: In J anuary 20 0 0 , Dr. Karshner found her exam essentially norm al but noted that plaintiff showed significant anger and frustration during the appointm ent which had been set up by an attorney. Her MRI was norm al other than a disc bulge; her lab work was all norm al. She did not accept Dr. Karshner’s diagnosis or treatm ent plan, which included physical therapy. In March 20 0 0 plaintiff’s physical exam was norm al other than tender points. In April 20 0 0 plaintiff had been out of her m edications but did not call her doctor. Instead she went to the em ergency room and got a narcotic. Her physical exam was norm al except tender points. 39 In May 20 0 0 , after plaintiff had been back on her m edications, she had fewer tender points and overall felt better. In J une 20 0 0 plaintiff was working four hours per day and her tender points were “less tender”. By August 20 0 0 (alm ost a year after her alleged onset date) she was working six hours a day and had only eight tender points, which is fewer than that required for a diagnosis of fibrom yalgia. In October 20 0 5, a doctor at the Nevada Medical Clinic noted that her ultrasound and CT of the abdom en were norm al. In J anuary 20 0 1, it was noted that plaintiff had been out of her m edications “for som e tim e.” She was still not exercising as recom m ended by her doctors. She was told to begin a walking program , yoga or other exercise program , but she did not. In October 20 0 3 -- four years after her alleged onset date -- plaintiff saw a DDS physician, Dr. Tim othy Sprenkle, in connection with her disability case. Dr. Sprenkle noted that plaintiff was not putting any effort at all into grip strength testing. “She shows m ore strength when she walks than she does when pushing against m y hand in strength resistant exercises.” He noted that she put forth very poor effort in all of the testing. Dr. Sprenkle told plaintiff she needed to lose weight and stop sm oking. “She exhibits very poor work effort.” A year later, in October 20 0 4, plaintiff’s MRI showed only “very m inim al” bulging of C4-5 and “m ild” bulging of C5-6 and C6-7. Her spinal cord was norm al. Later that m onth she told Dr. Paff (who saw her in connection with her disability claim ) that her pain “com es and goes” and that she “is not depressed.” Dr. Paff observed that plaintiff was pleasant, cooperative, and in no distress. Dr. Paff, like Dr. Sprenkle, noted that plaintiff was not trying at all during grip strength testing. Dr. Paff observed that “it 40 hurts every place that I touch her, which is of concern as to validity.” Despite finding that plaintiff was not trying while being tested, and that she hurt every place he touched her which he clearly did not believe based on his other com m ents, Dr. Paff said that he doubts if she will ever be able to work. He did not indicate any functional restrictions or any testing that supported that. And he is the only doctor who m ade such a statem ent in this volum inous record. A week after plaintiff saw Dr. Paff, she was exam ined by Dr. Khan (a treating doctor) who observed that she was alert, oriented, pleasant and with a good attention span. She had norm al coordination, norm al gait, norm al station and norm al m otor strength -- even though a few days earlier plaintiff tried to appear to have significantly less strength when being exam ined in connection with her disability claim . In Novem ber 20 0 6 plaintiff was diagnosed with restless leg syndrom e even though “period lim b m ovem ents were not dem onstrated” during a sleep study. Finally, when plaintiff went to the em ergency room for dehydration, she was found to have m etabolic syndrom e (i.e., pre-diabetes) and was offered counseling on dietary changes to avoid diabetes, which she was “totally reluctant to discuss.” The m edical records clearly do not corroborate plaintiff’s allegations of severe disabling pain on a constant basis. She presented herself differently to doctors exam ining her for treatm ent versus for her disability case. She was consistently in no distress which com pletely contradicts her testim ony of suffering from the worst possible pain on a daily basis. She exaggerated her lim itations when being tested in connection with her disability case. When evaluating a claim ant’s alleged disability, it is proper to consider a claim ant’s uncooperative or exaggerated responses during a m edical 41 exam ination. Brown v. Chater, 87 F.3d 963, 965 (8thCir. 1996)(the plaintiff exaggerated problem s during testing). The ALJ properly discounted plaintiff’s subjective com plaints; therefore, plaintiff’s m otion for sum m ary judgm ent on this basis will be denied. VII. M EN TAL IM PAIR M EN T Plaintiff argues that the ALJ failed to develop the record with regard to plaintiff’s m ental im pairm ent. “[T]he ALJ failed to obtain additional m edical evidence as to whether Plaintiff m e Listing 12.0 7. The Medical Expert, Robert Karsh, MD, testified that Plaintiff’s fibrom yalgia was closest to Listing 12.0 7, regarding som atoform disorder, because fibrom yalgia dealt with depression and stress.” The ALJ found that plaintiff’s m ental im pairm ent is not severe: [T]he undersigned finds that the claim ant has no severe m ental im pairm ent. The claim ant has never been hospitalized for m ental sym ptom s and was treated by a m ental health professional for anxiety/ depressed m ood for only about 4 m onths in 20 0 7. Exhibit 17E indicates that she has taken m ild anti-depressant m edications for about two years. Her continued use of these m edications suggests that they are effective in treating her sym ptom s. Furtherm ore, the State agency psychologists have indicated that the claim ant has no severe m ental im pairm ent. Based on these factors, the undersigned finds the claim ant has no severe m ental im pairm ent. Specifically, the claim ant’s m ental sym ptom s cause no restriction of activities of daily living, m ild difficulties in m aintaining social functioning, m ild difficulties in m aintaining concentration, persistence or pace, and no episodes of decom pensation, each of extended duration. (Tr. at 399). Plaintiff did not allege a m ental im pairm ent as a basis for disability. In J anuary 20 0 6 -- five and a half years after her alleged onset date -- plaintiff denied any history of anxiety or depression. Plaintiff’s m edical records show that she was treated for depression for about four m onths in 20 0 7. Kenneth Burstin, Ph.D., concluded that 42 plaintiff did not have a severe m ental im pairm ent. Dr. Karsh, the m edical expert who testified at the hearing, stated that fibrom yalgia’s “closest relative” was som atoform disorder because both are conditions for which there are no objective findings and they are associated with depression and stress. Dr. Karsh did not testify that there was evidence that plaintiff suffers from som atoform disorder -- he used the disorder to explain how fibrom yalgia is a diagnosis without objective findings. Reversal due to failure to develop the record is only warranted when such a failure was unfair or prejudicial. Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 20 0 5); Shannon v. Chater, 54 F.3d 484, 488 (8th Cir. 1995). Plaintiff did not allege a m ental im pairm ent as a basis for disability, and the record fails to indicate that a severe m ental im pairm ent exists. Instead, the record includes a finding by a clinical psychologist that plaintiff’s m ental im pairm ent is not severe. The ALJ is only required to order additional m edical evidence when the evidence as a whole, both m edical and nonm edical, is not sufficient to m ake a disability determ ination. 20 C.F.R. §§ 40 4.1519a and 416.919a. That was not the case here. Therefore, plaintiff’s m otion for judgm ent on this basis will be denied. VIII. IM PACT OF PLAIN TIFF’S OBESITY Plaintiff argues that the ALJ erred in failing to evaluate the severity of plaintiff’s obesity on her ability to work. The consultative exam iner, Dr. Sprenkle, did not assess work-related functional restrictions due to obesity. Dr. Sprenkle did, however, note that plaintiff was “not putting any effort at all” in to strength testing. Dr. Paff also noted that plaintiff was not trying at all during strength testing and that she claim ed to hurt every place he touched her which essentially invalidated the testing. There were no range of 43 m otion lim itations due to obesity noted in any m edical record, nor was there any difficulty walking indicated by any doctor. Moreover, no other treating or exam ining physician assessed any lim itations due to obesity. In J une 20 0 7 -- alm ost eight years after plaintiff’s alleged onset date -- Dr. Kem m stated that plaintiff could “walk as far as she desires.” SSR 0 2-0 1p provides that obesity will be considered a severe im pairm ent when it significantly lim its a claim ant’s ability to perform basic work activity. There is no evidence of any functional lim itations due to obesity here, either in the m edical records or in plaintiff’s own testim ony. Therefore, plaintiff’s m otion for judgm ent on this basis will be denied. IX . PLAIN TIFF’S R ESID U AL FU N CTION AL CAPACITY Plaintiff argues that the ALJ erred in failing to restrict plaintiff’s residual functional capacity on the basis of her diarrhea problem and her neck and back problem s. The ALJ found that plaintiff had a “recent vom iting and diarrhea problem ”. The ALJ noted that plaintiff first com plained of vom iting and diarrhea in 20 0 1, which is after her alleged onset date. In 20 0 2 she com plained once of right lower quadrant pain. She did not again com plain of vom iting and diarrhea until late 20 0 7 (dehydration) and early 20 0 8 (gastroenteritis). Plaintiff also argues that the ALJ im properly relied on the testim ony of Dr. Karsh and ignored the m edical opinion of Dr. Paff who stated that he doubted plaintiff would ever be able to work. Prelim inarily, I note that Dr. Paff also stated that plaintiff did not give any effort at all when participating in strength testing, and that because she claim ed to hurt every place he touched her, the testing was not valid. His conclusion at the end that he doubted she would ever work was not supported by anything other than plaintiff’s 44 apparently lack of m otivation to work and her strong m otivation to appear to be in m uch worse condition than she really was. The ALJ found that plaintiff m aintained the residual functional capacity to perform light and sedentary work which involved standing and/ or sitting six hours daily, lifting 20 pounds occasionally and 10 pounds frequently. She found that plaintiff could not work in tem perature extrem es or around excessive hum idity. It is the responsibility of the ALJ to determ ine a claim ant’s residual functional capacity based on all of the relevant evidence including m edical records, observations of treating physicians and others, and plaintiff’s own description of her lim itations. 20 C.F.R. §§ 40 4.1545, 40 4.1546, 416.945, and 416.946; McKinney v. Apfel, 228 F.3d 860 , 862 (8th Cir. 20 0 0 ); Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995). In this case, the ALJ ’s residual functional capacity finding is supported by m edical evidence from treating physician, Matthew Karshner, M.D.; the testifying m edical expert, Robert Karsh, M.D.; and reviewing physician, Van Kinsey, D.O. The ALJ ’s residual functional capacity determ ination was also influenced by her determ ination that plaintiff’s allegations were not credible. Tellez v. Barnhart, 40 3 F.3d 953, 957 (8th Cir. 20 0 5). Contrary to plaintiff’s argum ent, the ALJ ’s decision shows that all of plaintiff’s alleged im pairm ents were addressed. The ALJ first incorporated by reference the prior ALJ ’s sum m ary of the evidence, although not the prior ALJ ’s decision. The ALJ then discussed all of plaintiff’s credible com plaints, including fibrom yalgia, neck and back problem s, abdom inal pain, and obesity. The ALJ discussed the testim ony of Dr. Robert Karsh, a board certified physician in internal m edicine and rheum atology and a teacher in clinical rheum atology at Washington University School of Medicine. Dr. Karsh 45 detailed the evidence related to plaintiff’s fibrom yalgia, vom iting, diarrhea, gastroenteritis, depression, and cervical spine. Dr. Karsh explained that fibrom yalgia is a disorder of unknown cause which is characterized by achy pain, stiffness, and soreness in m uscles and areas of the tendon insertions and soft tissue. The condition is exacerbated by environm ental or em otional stress, poor sleep, traum a, exposure to dam pness or cold, or by a physician telling a patient that his condition is “all in his head.” Dr. Karsh further explained that the leader of the group that discovered fibrom yalgia, Dr. Frederick Wolf, stated in a J anuary 20 0 8 New York Tim es article that although fibrom yalgia was initially identified as a disease, it is actually a chronic pain syndrom e that is closely related to stress. Dr. Karsh stated that the lim itations an individual experienced due to fibrom yalgia essentially rested upon a credibility assessm ent of that person’s subjective com plaints. In this case, Dr. Karsh stated that the objective findings did not m eet the requirem ents of a listed im pairm ent, and plaintiff had no lim itations aside from lim itations dealing with dam pness and excessive heat and cold, all of which exacerbate chronic pain syndrom es. Upon assessing the evidence taken as a whole, the ALJ properly granted great weight to Dr. Karsh’s expert testim ony and opinion, which included an assessm ent of all of plaintiff’s m edically supported im pairm ents. Plaintiff argues that Dr. Karsh’s opinion is contrary to other evidence of record, specifically Dr. Paff’s statem ent that plaintiff was “disabled.” Dr. Paff observed that plaintiff had good range of m otion in her shoulders, cervical spine and lum bosacral spine. He observed that x-rays of her cervical spine were unrem arkable. He observed that plaintiff did not appear to be trying during grip testing, and he questioned the 46 validity of the physical exam because plaintiff claim ed to hurt every single place he touched her. Dr. Paff then stated that he doubted plaintiff would ever be able to work and that she was disabled. Clearly there is no support whatsoever for that conclusion. Dr. Sprenkle also questioned the credibility of plaintiff’s com plaints and noted that she did not try at all during grip testing. A treating physician’s conclusion that plaintiff is disabled receives no deference because a finding of disability is one reserved for the Com m issioner. House v. Astrue, 50 0 F.3d 741, 744 (8th Cir. 20 0 7). The determ ination that a claim ant is “disabled” or “unable to work” involves an issue reserved to the Com m issioner and is not the type of “m edical opinion” to which the Com m issioner gives controlling weight. Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 20 0 5)(citing Storm o v. Barnhart, 377 F.3d 80 1, 80 6 (8th Cir. 20 0 4)). Rather, the ultim ate decision as to whether a claim ant is disabled is m ade by the Com m issioner. 20 C.F.R. §§ 40 4.1527(e)(1) and 416.927(e)(1); Flynn v. Chater, 10 7 F.3d 617, 622 (8th Cir. 1997). “Although m edical source opinions are considered in assessing RFC, the final determ ination of RFC is left to the Com m issioner.” Ellis v. Barnhart, 392 F.3d 988, 994 (20 0 5) (citing 20 C.F.R. § 40 4.1527(e)(2)). Contrary to plaintiff’s claim , the ALJ ’s decision is consistent with the standard for evaluating pain and other subjective com plaints as set forth in the regulations at 20 C.F.R. §§ 40 4.1529 and 416.929. A claim ant’s statem ent about pain or other sym ptom s does not, by itself, establish disability. 20 C.F.R.§§ 40 4.1529 and 416.929. There m ust be m edical signs and laboratory findings showing a m edical im pairm ent which could reasonably be expected to produce the sym ptom s alleged and which, when considered 47 with all of the other evidence, would lead to the conclusion that the claim ant is disabled. Id. Although “[c]onsistent diagnosis of chronic . . . pain, coupled with a long history of pain m anagem ent and drug therapy,” m ay be viewed as an “objective m edical fact,” the evidence in this case, including questions of validity by physicians, fails to support plaintiff’s claim . O’Donnell v. Barnhart, 318 F.3d. 811, 817 (8th Cir. 20 0 3); Cox v. Apfel, 160 F.3d 120 3, 120 8 (8th Cir. 1998). In Septem ber 20 0 0 , treating physician Matthew Karshner, M.D., stated that plaintiff could work up to eight hours a day, with a 25- to 30 -pound lifting restriction. In J une 20 0 7, Russell Kem m , D.O., noted that plaintiff could walk “as far as she desires.” This treating physician opinion evidence provides support for the ALJ ’s decision. As the ALJ noted, plaintiff received only a 8.2 percent whole body disability rating as the result of a worker’s com pensation claim . While not binding on the Com m issioner, this evidence was properly considered. See Morrison v. Apfel, 146 F.3d 625, 628 (8th Cir. 1998). The record shows that although plaintiff alleged disability beginning Septem ber 1, 1999, she continued to work until August 1, 20 0 0 . The evidence of record fails to reveal a deterioration in plaintiff’s condition after she stopped working. Com stock v. Chater, 91 F.3d 1143, 1147 (8th Cir. 1996)(the plaintiff’s work activity belied his claim of disabling pain). Work perform ed during any period in which plaintiff alleges that she was under a disability is evidence of an ability to engage in substantial gainful activity. See 20 C.F.R. §§ 40 4.1571 and 416.971. Because the ALJ properly evaluated the m edical opinions of the treating, exam ining and reviewing doctors, and because the ALJ properly discounted plaintiff’s 48 subjective com plaints of disabling pain, plaintiff’s m otion for judgm ent on the ground that the ALJ im properly form ulated plaintiff’s residual functional capacity will be denied. X. CON CLU SION S Based on all of the above, I find that the substantial evidence in the record as a whole supports the ALJ ’s finding that plaintiff is not disabled. Therefore, it is ORDERED that plaintiff’s m otion for sum m ary judgm ent is denied. It is further ORDERED that the decision of the Com m issioner is affirm ed. ROBERT E. LARSEN United States Magistrate J udge Kansas City, Missouri August 20 , 20 12 49

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