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case 2:12-cv-00325-PRC document 18 filed 07/30/13 page 1 of 37






CAROLYN W. COLVIN, Commissioner
of the Social Security Administration,



CAUSE NO.: 2:12-CV-325-PRC


This matter is before the Court on a Complaint [DE 1], filed by Plaintiff Kimberly S. Rust

on August 13, 2012, and Plaintiff’s Brief in Support of Complaint [DE13], filed December 6, 2012.

Plaintiff requests that the Court reverse the Administrative Law Judge’s decision of March 24, 2011,

denying her child insurance benefits and supplemental security income, and remand for further

administrative proceedings. For the reasons set forth below, Ms. Rust’s request is denied, and the

Court affirms the decision of the Administrative Law Judge.


Plaintiff Kimberly Rust filed applications for Supplemental Security Income Benefits (“SSI”)

and Disability Insurance Benefits under Child Disability (“CIB”), on September 2, 2009.1 Both

applications were denied initially on December 22, 2009, and on reconsideration on March 3, 2010.

Ms. Rust was granted her request for a hearing before an Administrative Law Judge (“ALJ”), which

took place via video conference on February 10, 2011, with ALJ Roxanne Kelsey. Ms. Rust was

1 The regulations governing the determination of disability for CIB are found at 20 C.F.R.
§ 404.1501 et seq. The SSI regulations are substantially identical to the DIB regulations and are set
forth at 20 C.F.R. § 416.901 et seq. For convenience, only the CIB regulations are cited in this

case 2:12-cv-00325-PRC document 18 filed 07/30/13 page 2 of 37

represented by her attorney. Ms. Rust, her mother, and a vocational expert (“VE”) testified at the

hearing. The ALJ made the following findings:










Born [in 1986], the claimant had not attained age 22 as of January 1, 2002,
the alleged onset date (20 CFR 404.102, 416.120(c)(4) and 404.350(a)(5)).

The claimant has not engaged in substantial gainful activity since January 1,
2002, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

The claimant has the following severe impairments: a back condition with
ongoing pain and radiculopathy following surgical excision of lymphomas;2
impairments impacting her left knee, including degenerative disease;
headaches; obesity; alcohol use; and anxiety/depression (20 CFR
404.1520(c) and 416.920(c)).

The claimant does not have an impairment or combination of impairments
that meets or medically equals one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).

After careful consideration of the entire record, I find that the claimant has
the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) except no more than occasional pushing or
pulling with her left lower extremity. She can occasionally climb ladders,
ropes or scaffolds, kneel, crouch, or crawl. She should have no more than
occasional contact with supervisors, coworkers and the public. The claimant
would need a sit and stand option but would be able to remain on task.

The claimant has no past relevant work (20 CFR 404.1565 and 416.965).

The claimant was born [in 1986] and was 23 years old, which is defined as
a younger individual age 18-49, on the application date (20 CFR 404.1563
and 416.963).

The claimant has a limited education and is able to communicate in English
(20 CFR 404.1564 and 416.964).

Transferability of job skills is not an issue because the claimant does not
have past relevant work (20 CFR 404.1568 and 416.968).

2 The record shows that Ms. Rust suffers from lipomas, not lymphomas.


case 2:12-cv-00325-PRC document 18 filed 07/30/13 page 3 of 37



Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform (20 CFR 404.1569,
404.1569(a), 416.969, and 416.969(a)).

The claimant has not been under a disability, as defined in the Social Security
Act, from January 1, 2002, through the date of the decision (20 CFR
404.350(a)(5), 404.1520(g) and 416.920(g)).

(AR 21-31).

The ALJ issued her decision on March 24, 2011, and the Appeals Council declined review

on May 2, 2012, establishing the ALJ’s decision as the final determination of the Commissioner of

Social Security (“Commissioner”). Following denial of review, Ms. Rust was referred to new

counsel and, after the Appeals Counsel granted Ms. Rust’s request for an extension of time, Ms.

Rust timely filed her Complaint.


A. Background

Plaintiff Kimberly Rust was born in 1986. Ms. Rust was 23 years old at the time she filed

her applications and 25 years old at the time the ALJ issued her decision. Ms. Rust worked as a

cashier and waitress, but she has not worked since 2006 and never earned much more than $2,000

in one year. The VE and the ALJ each concluded that Ms. Rust has no past relevant work. At the

time of the hearing, Ms. Rust lived with her sister. Ms. Rust cares for her three young children.

B. Medical History

Ms. Rust has a medical history of back and knee issues, mental health issues, and migraine

headaches, each of which are discussed in turn.


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Back and Knee Issues

Ms. Rust first reported back problems to her family physician, Deepak Bhojraj, M.D., on

April 20, 2001, describing low back pain and a lump on her back. From 2001 through 2007, Ms.

Rust underwent five surgeries to excise recurring lipomas on her lower back. Ms. Rust complained

about back pain intermittently to her doctors from 2001 to 2008. Ms. Rust first reported knee

problems to Dr. Bhojraj on December 6, 2002, stating that she had woken a few days earlier with

numbness in her left leg.

On January 7, 2003, an MRI of Ms. Rust’s back was negative for any injury. On January

20, 2003, Dr. Abu-Aita performed a series of nerve tests on Ms. Rust’s legs and found that the left

leg had similar nerve function to the right leg. On January 21, 2003, an MRI of Ms. Rust’s left leg

was negative for any observable trauma or injury.

On January 29, 2003, Ms. Rust underwent a consultative examination by Daksha Vyas,

M.D., a neurologist, who found normal gait and muscle system but also diagnosed low back pain

with L5 radicular pain.3 On May 29, 2003, Ms. Rust’s mother reported to Dr. Bhojraj that the leg

numbness was gone. On July 18, 2003, Ms. Rust reported back pain as well as pain and cramps in

her left leg. On July 24, 2003, Dr. Koh performed an EMG and found normal responses in both legs

and normal insertional activities; the test did not show any denervational activities.

Ms. Rust reported back pain to Dr. Bhojraj on June 10, 2004, and he prescribed Tylenol #3.

Two masses were found in her lower back on July 29, 2004, but surgery could not be performed

because she was pregnant. Ms. Rust complained in April 2005 that she pulled a muscle in her back

while playing football, and Dr. Bhojraj prescribed muscle relaxers. Ms. Rust complained of

3 The Court notes that Dr. Vyas’ treatment notes are unreadable in a number of places, either through poor

reproduction, or the inscrutability of the handwriting. Ms. Rust’s attorney noted this difficulty at the hearing.


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continuing low back pain on July 15 and September 13, 2005, and requested more muscle relaxers.

On December 9, 2005, Ms. Rust reported to Dr. Bhojraj that she experienced cramping in her left

knee, and he prescribed her Neoprofen and a knee brace.

On April 7, 2006, a new MRI was taken to compare to the MRI of her left leg taken on

January 21, 2003; the MRI revealed degenerative intrasubstance abnormality. An arthroscopic

evaluation of the meniscus was recommended to rule out a subtle tear.

On May 16, 2006, Ms. Rust’s mother reported that Ms. Rust did not have time for physical

therapy because she was busy taking care of her baby. On June 8, 2006, Ms. Rust complained of

low back pain, and she was referred to Dr. Andrews for knee pain. Later reports from Ms. Rust

suggest she underwent arthroscopy in June 2006, performed by Dr. Andrews; however, there is no

direct evidence in the record of this procedure. On November 15, 2006, Dr. Vyas reported that Ms.

Rust could not tandem walk (heel-to-toe), stand on her heels, or stand on her toes on the left side.

On January 15, 2007, Plaintiff reported to Dr. Bhojraj that she had surgery on her left knee

cap in June 2006, but that she is in constant pain at a level of 10 out of 10 on a pain scale on a daily

basis; Dr. Bhojraj prescribed Percocet for the pain. On March 5, 2007, Dr. Bhojraj prescribed

Vicodin because Percocet made her feel nauseous.

On March 6, 2007, Dr. Lee performed a consultative examination of Ms. Rust’s left knee.

He noted some tenderness in her knee-cap, that her quadriceps were very weak, 3 out of 5, with very

tight hamstrings, that she had full range of motion in her hips, and that her left knee could bend from

0 to 105 degrees. He indicated that Ms. Rust was not a candidate for surgery.

After surgery to remove a lipoma from her back on March 24, 2007, Ms. Rust complained

of back pain to Dr. Bhojraj on April 5, July 10, and October 4, 2007. On April 11, 2007, Ms. Rust


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continued to complain of low back pain and knee pain following her arthroscopic procedure. On

August 30, 2007, Ms. Rust reported that her left knee pain had returned approximately one month

earlier. On October 4, 2007, Ms. Rust reported low back pain and knee pain.

On January 29, 2008, Ms. Rust reported to Dr. Vyas that she had been taking three Vicodin

per day instead of two for back pain. On January 29, 2008, Ms. Rust underwent an EMG test with

Dr. Vyas, who concluded that the findings were suggestive of L5-S1 radiculopathy in the lower left

extremity. On February 22, 2008, Ms. Rust reported that her left knee was painful to touch, but Dr.

Bhojraj observed no abnormalities. On February 22, 2008, and March 25, 2008, Ms. Rust reported

fatty tumors recurring in her back. On April 14, 2008, she told Dr. Vyas that her left knee pain was

worsening. She complained of low back and knee pain to Dr. Vyas on May 7 and August 6, 2008.

On October 24, 2008, Ms. Rust reported left knee pain to Dr. Vyas. On January 16, April 10, July

8, and September 30, 2009, Ms. Rust complained of knee pain to Dr. Vyas; she could not tandem

walk, walk on heels, or walk on toes, at any of these sessions.

During a consultative examination with Teofilo Bautista, M.D., on December 13, 2009, Ms.

Rust reported having knee surgery in 2006, which had caused her to experience continuous pain at

a level of 10 out of 10 on a pain scale and that Vicodin reduced that pain to 4 out of 10 for two hours


On January 8, 2010, Ms. Rust complained to Dr. Vyas of a sharp and aching increase in knee

pain and reported taking extra Vicodin.

On January 7, 2011, Ms. Rust requested from Dr. Vyas an increase in her Vicodin dosage

from two per day to four per day for her knee pain.


case 2:12-cv-00325-PRC document 18 filed 07/30/13 page 7 of 37


Mental Health Issues

On September 20, 2006, Ms. Rust presented to Dr. Vyas with headaches, anxiety, crying

spells, and unprovoked anger. She was 20 years old, and her daughter was seventeen months old.

Dr. Vyas diagnosed migraines, anxiety/depression, left knee joint pain, and weight gain. Dr. Vyas

prescribed Lexapro and Xanax for anxiety. Ms. Rust visited Dr. Vyas on November 11 and

December 20, 2006, to obtain refills for Xanax and a prescription for Topamax.

On April 11, 2007, Ms. Rust had no new complaints and continued on Xanax and Topamax.

On October 4, 2007, Ms. Rust had her dosage of Topamax increased. For the next several visits,

about every three months through January 16, 2009, Ms. Rust had no new complaints of anxiety or

depression and continued to receive refills for her medications.

In April 2009, Ms. Rust’s father went missing and was later found dead after a boating

accident; on April 6, 2009, Ms. Rust requested medication for her “nerves” from Dr. Bhojraj and

was prescribed Xanax. On April 10, 2009, Ms. Rust told Dr. Vyas that she was taking extra Xanax

and that Cymbalta was not working. On July 8, 2009, Ms. Rust visited Dr. Vyas for a prescription

refill and reported that she was taking Xanax, Vicodin, and Topamax. There is a question mark next

to the word Cymbalta and a notation that Ms. Rust wanted to ask about medication.

Ms. Rust saw John Spores OP Therapist, Ph.D, HSPP, on November 1, 2010, with

complaints of depression, anxiety, and alcohol abuse. Ms. Rust reported that she lived with her

fiance and three children but that she felt “emotionally abandoned” by her mother and siblings since

her father’s death. He described Ms. Rust as cooperative and well-groomed with a depressed mood

and appropriate affect. Ms. Rust’s memory, orientation, cognition, attention span, and thought

content were normal; she displayed logical, goal-directed thought process.


case 2:12-cv-00325-PRC document 18 filed 07/30/13 page 8 of 37

On November 3, 2010, Samir Gupta M.D. diagnosed Ms. Rust with major depressive

disorder, single episode, moderate; chronic post traumatic stress disorder (“PTSD”); and alcohol

abuse. He placed Ms. Rust on a trial of Pristiq, to replace Cymbalta, and also Abilify to take before

bed. After a November 23, 2010 follow-up visit, Dr. Gupta again diagnosed Ms. Rust with major

depressive disorder, single episode, moderate, and chronic PTSD. He replaced Abilify with

Seroquel because Ms. Rust reported experiencing nightmares with Abilify. At the January 25, 2011

follow-up appointment, Ms. Rust reported a reasonable response to the medication with some

residual symptoms of depression; she reported maintaining her sobriety and working on her current

stressors; Dr. Gupta’s assessment again was major depressive disorder, single episode, moderate and



Migraine Headaches

At the September 20, 2006 visit with Dr. Vyas, Ms. Rust complained of headaches, along

with anxiety, crying spells, and becoming angry without any reason, all of which she reported she

had experienced for the past five years. There are not any references to headaches in Dr. Bhojraj’s

treatment notes prior to that date. On October 19 and November 2, 2006, Ms. Rust underwent an

EEG with Dr. Vyas; the results were normal for both tests. Dr. Vyas ordered a CT scan, which Ms.

Rust underwent on December 16, 2006. The CT findings were within normal limits, and there were

mild changes of ethmoid sinus disease.

On April 4, 2007, Dr. Vyas prescribed Topamax for migraine headaches. In July and

October 2007, Ms. Rust complained of migraine headaches. For the next five years, she continued

to take Topamax, get refills, and have her dosage increased once or twice.


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On September 17, 2009, Ms Rust filled out a headache questionnaire. She indicated that the

headaches began in August 2007; she was not sure what causes them; she gets them at the front of

her head; light and noise bother her, and the headaches make her cry; she gets them everyday; she

treats them with Topamax; they could last hours; she cannot get out of bed and gets aggravated; she

had not been to the emergency room for headaches in the past 12 months.

During the consultative examination with Dr. Teofilo Bautista on December 11, 2009, Ms.

Rust reported that her headaches are frontal in location and daily and that she had just started taking


When she saw Dr. Spores on November 1, 2010, she reported suffering from severe

migraines, among other things.

C. Medical Source Opinions




Dr. Bautista - Consultative Examiner

On December 13, 2009, Dr. Bautista performed a consultative examination of Ms. Rust. On

examination, Ms. Rust “refused” and was “unable” to do range of motion testing of her back and

hips due to reported back pain. Dr. Bautista found knee pain in her left leg, with a flexion of 70

degrees, compared to no pain and flexion of 120 degrees in her right leg. He noted a limping gait

due to left knee pain and an inability to do tandem, heel, and toe walking. He listed the strength in

her left leg at 4 out of 5, compared to 5 out of 5 for her right leg. His impressions were chronic low

back pain, chronic left knee pain, chondromalachia of the left knee with a small oblique tear of the

medial meniscus (from the April 2006 MRI), and migraine headaches.


case 2:12-cv-00325-PRC document 18 filed 07/30/13 page 10 of 37


Dr. Whitley - Consultative Reviewer

B. Whitley, M.D. completed a Physical Residual Functional Capacity Assessment for

Plaintiff on December 21, 2009. Dr. Whitley found that Ms. Rust could occasionally lift or carry

up to 20 pounds, could frequently carry up to 10 pounds; could stand/walk or sit for about 6 hours

in an 8-hour workday; and had unlimited ability to push and/or pull within the lifting restrictions.

Dr. Whitley found Ms. Rust could frequently climb ramps or stairs, balance, and stoop and could

occasionally kneel, crouch, crawl, and climb ladders, ropes, or scaffolds. Dr. Whitley noted that Ms.

Rust’s medical history established no manipulative, visual, communicative, or environmental

limitations affecting ability to work. Dr. Whitley opined that Ms. Rust’s reported severity of

symptoms was partially credible but her alleged limitations exceeded objective findings. Dr.

Whitley’s findings were affirmed by J. Sands, M.D. on March 3, 2010.


Dr. Vyas - Treating Source

On February 9, 2011, Dr. Vyas completed a Medical Assessment of Ability to Do Work-

Related Activities (Physical) for Ms. Rust from 2006 to present. Dr. Vyas opined that Ms. Rust

could sit or stand/walk for less than 30 minutes at a time and for less than 30 minutes total in an

eight-hour workday; she could lift less than five pounds; she could never climb, balance, stoop,

crouch, kneel, crawl, bend, or twist; she had a limited ability to reach, handle, and push/pull; and

she should be limited from working around heights, machinery, extreme temperatures, chemicals,

dust, noise, fumes, and humidity.

The medical findings Dr. Vyas lists to support the lifting restriction are: “Patient has low

back pain with chronic lumbar radiculopathy. Therefore any lifting/carrying is very limited.” (AR

477). The medical findings for the standing/walking restriction are: “Patient has gait disturbance


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& chronic low back pain. Therefore patient’s capability of standing & walking is very limited to

prevent her for[sic] fall.” Id. The medical findings to support the sitting restriction are: “low back

pain & chronic lumbar radiculopathy; no sitting for long periods of time.” (AR 478). The medical

findings for the postural limitations are “gait disturbance” and “low back pain.” Id. Finally, the

medical findings for the physical functions affected is “pain” and for the environmental restrictions”

is “constant pain & gait disturbance” and “risk for fall.” Id.

Dr. Vyas opined that Ms. Rust needs 10- to 15-minute breaks to lie down more than twice

in an 8-hour period “based on constant pain.” (AR 479). Under the question, “other work-related

activities which are affected by patient’s condition,” Dr. Vyas listed depression, anxiety, and

nervousness. Id. Dr. Vyas stated that Ms. Rust has pain in her back every day and at times “feels

depressed and anxiety[sic].” Id.




Dr. Snyder - Consultative Examiner

Ms. Rust underwent a consultative psychological evaluation with Todd Snyder, Psy.D. on

November 7, 2009. Ms. Rust reported anxiety when leaving her home, panic attacks since the end

of 2005, and depression and significant alcohol consumption since her father’s death in April 2009.

Ms. Rust presented in a dysthymic and downcast manner with poor social skills. She exhibited a

depressed and flat affect but made appropriate eye contact and good effort during the examination.

Dr. Snyder diagnosed Ms. Rust with panic disorder with partial agoraphobia; adjustment disorder

with depressed mood; alcohol abuse; and a personality disorder not otherwise specified. Dr.

Snyder’s medical source statement was that Ms. Rust “appears to have pervasive pattern of anxiety


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and aggressive response to feelings of panic. Her difficulty interacting with people appears to be

related to anxiety and depression in addition to underlying personality disorder.” (AR 395).


Dr. Gange - Consultative Reviewer

J. Gange, Ph.D. completed a Psychiatric Review Technique form on November 12, 2009.

Dr. Gange found the following categories of impairments from the Listings: affective disorder,

disturbance of mood with adjustment disorder; anxiety-related disorder, panic disorder; personality

disorder, NOS; substance addiction disorder, alcohol abuse. Dr. Gange found that Ms. Rust’s

impairments were not severe. Dr. Gange opined that Ms. Rust had no restrictions of activities of

daily living, no episodes of decompensation, mild difficulties in social functioning, and mild

difficulties in maintaining concentration, persistence, or pace. He noted that the evidence did not

establish the presence of “C criteria.” Dr. Gange stated that Ms. Rust had no history of psychiatric

treatment other than a prescription from a general practitioner; she was coherent, cooperative, and

friendly on the phone with the disability office; she cared for her children independently; she had

physical limitations on her activities of daily living; minimal socialization; and she had no problems

getting along with others.

Dr. Gange stated that Ms. Rust’s mother reported that Ms. Rust interacts “fine” in public,

is able to go out alone, attends well to conversations and television, has a generally good memory,

and drinks a couple times a week but that she does not get drunk and drinking does not affect

functioning. Dr. Gange stated that Ms. Rust’s presentation to Dr. Snyder at the consultative

examination was not consistent with reports from her or her mother and that the evaluation was not

credible. Reports of Ms. Rust’s activities of daily living did not support a finding of a severely


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limiting mental impairment. Dr. Gange opined that Ms. Rust exaggerated her symptoms to Dr.

Snyder. Dr. Gange’s findings were affirmed by F. Kladder, Ph.D., on February 25, 2010.


Dr. Gupta - Treating Source

On January 25, 2011, Dr. Gupta completed a Medical Assessment of Ability to Do Work-

Related Activities (Mental) for Ms. Rust. Dr. Gupta opined that Ms. Rust has an “Unlimited/Very

Good” ability to make most occupational adjustments and to make most performance adjustments.

However, he listed her as “poor/none” for dealing with work stresses, maintaining

attention/concentration, and understanding, remembering, and carrying out complex job instructions.

In the category of making personal-social adjustments, Dr. Gupta found that Ms. Rust has a “good”

ability to maintain personal appearance, a “fair” ability to behave in an emotionally stable manner,

and a “poor/none” ability to relate predictably in social situations. Dr. Gupta supported this

assessment by noting that Ms. Rust had difficulties after her father’s death and that she had been

feeling very depressed and experienced crying episodes and poor sleep, which would interfere with

her ability to “hold job at this time.” (AR 475).

D. Testimony of Plaintiff Kimberly Rust

Ms. Rust testified that she quit her job as a waitress at Denny’s primarily because she

suffered anxiety from being around so many people but also because of the back pain from standing.

She stated that she would take three to four extra breaks per shift to rest or sit down. Ms. Rust

testified that the main health problems that prevent her from working are anxiety and depression;

other health problems are her back and knee pain after surgery.

Ms. Rust testified that she takes medication for anxiety and pain, the medications work, and

there are no side-effects from the medications. She testified that her back constantly feels like it is


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being “ripped apart.” Her knee is swollen a lot, and she was told that the muscles are weak and that

she should have surgery on her knee again because the kneecap is crooked. She testified that she

can lift and carry 20 pounds, stand 20 minutes before needing to sit down, and sit for 20 to 25

minutes before needing to stand and stretch but that she cannot walk two blocks to her children’s

grandparent’s home or the five blocks to the school bus stop.

Ms. Rust testified that anxiety causes her to be uncomfortable in enclosed spaces with

strangers. She was uncomfortable in the hearing room because three strangers were present. She

is not anxious with her three children. She does not mind being with her psychiatrist but does not

like being with her therapist. She credited her psychiatrist and therapist with helping her stop

abusing alcohol, testifying that she has not consumed alcohol since October 2010. Ms. Rust testified

that she can drive but does not like to because she is scared and starts to have panic attacks; her

mother or her boyfriend drive her to the store or doctor’s appointments.

Ms. Rust testified that, on a normal day, she has trouble getting out of bed in the morning

and she tries to relax and just lies around while she watches her children. She will sit and watch

television as long as she can stand up every twenty minutes, but she can lie down to watch an entire

movie. She testified that she lies down for six to seven waking hours of a day for a half hour to 45

minutes at a time.

Ms. Rust testified that she was getting migraines every day before receiving a prescription

for medication to treat them, and she also testified that she was getting migraines 4 to 5 times per

week before her medication. She was prescribed Topamax, and with the medication she has

migraines approximately three times per week. She testified that she sometimes has very bad

headaches that last up to an hour and a half and that make her vomit. When questioned by the ALJ,


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she testified that she experiences these bad headaches three times per week but then shortly

thereafter, when questioned by her attorney, she testified that she experiences these bad headaches

one time per week. She clarified, through questioning by her attorney, that since she has been on

Topamax, she has one bad headache per week. She testified that normal migraines last up to a half

hour but that normal headaches do not affect her ability to do housework or attend doctor’s

appointments. She testified that she does things that are necessary and then the headache goes away.

She testified that the Topamax has significantly helped.

E. Testimony of Ms. Rust’s Mother, Denise Brown

Ms. Rust’s mother, Denise Brown, testified that she sees her daughter two days per week and

she visits her daughter and grandchildren at Ms. Rust’s home. Ms. Brown testified that she knew

something was wrong with Ms. Rust around the age of 14 or 16 when she played softball for only

one year because she was physically unable to play despite enjoying the game. Ms. Brown testified

that Ms. Rust cannot get around well and cannot handle walking, sitting, or standing. Ms. Brown

drives Ms. Rust to the doctor and the store, but they only go to the store together if someone else

watches the children. Ms. Brown testified that she saw Ms. Rust have a panic attack a few months

before the hearing and the attack occurred at home; Ms. Brown never witnessed Ms. Rust have a

panic attack in the car, the store, or at the doctor’s office. Ms. Brown testified that, if Ms. Rust gets

up on the “wrong side of the bed,” little things set her off all day. (AR 94). Ms. Rust will call Ms.

Brown and yell at her when she has not done anything, and if the children are doing something they

are not supposed to then Ms. Rust will become agitated. Ms. Brown testified that Ms. Rust’s

outbursts were unrelated to alcohol and that she had never blamed any outbursts on drinking.


case 2:12-cv-00325-PRC document 18 filed 07/30/13 page 16 of 37

F. Testimony of Vocational Expert, Grace Gianforte

Vocational Expert (“VE”) Grace Gianforte testified at the hearing. The VE reviewed Ms.

Rust’s past work history and heard all of the testimony at the hearing. The ALJ asked the VE to

indicate if her opinion was different from the definitions in the Dictionary of Occupational Titles

(“DOT”). The VE identified the Chicago standard metropolitan statistical area as the region of the

economy on which her testimony was based. The ALJ asked the VE whether any jobs exist in the

region that could be performed by an individual with Ms. Rust’s vocational profile (age, education

and work experience) and who was limited to light exertion work that required only occasional

pushing or pulling with the left leg; only occasional climbing ladders, ropes, or scaffolds; only

occasional kneeling, crouching, or crawling; and no more than occasional contact with supervisors,

co-workers, and the public. The VE stated that there were three occupations available in significant

numbers in the regional economy: solderer brazier, marking clerk, and bakery worker.

The ALJ next asked the VE to use the same hypothetical person and to add a sit/stand option.

The VE responded that all three jobs were precluded because they were all performed while

standing. However, three other occupations were available with the sit/stand option: an assembler

in electric and electronic products (1,500 jobs; DOT code 726.687-014), bench worker (900 jobs;

DOT code 700.687-026), and polisher (900 jobs; DOT 713.687-034).

Next, the ALJ asked the VE to use the hypothetical without the sit/stand option but with the

requirement of only brief and superficial interaction with the public and co-workers. The VE

testified that such an individual could perform the first three jobs that she had presented; when the

ALJ added a sit/stand option the VE testified that person could perform the assembler, bench

worker, or polisher jobs.


case 2:12-cv-00325-PRC document 18 filed 07/30/13 page 17 of 37

The ALJ told Ms. Rust’s attorney she was aware that, if Ms. Rust was unable to have even

brief and superficial contact with others, or if she had to miss many days of work per week due to

headaches, she would be precluded from working.

G. The ALJ’s Decision

The ALJ received and considered three exhibits following the hearing: Dr. Gupta’s

treatment records from Porter-Starke (12F), Dr. Gupta’s mental medical assessment (13F), and Dr.

Vyas’ physical medical assessment (14 F). On March 24, 2011, the ALJ issued her decision denying

Ms. Rust’s claims, finding that Ms. Rust was not disabled at step five. Specifically, the ALJ found

that jobs existed in significant numbers in the regional economy, based on the testimony of the VE

at the hearing, because there were three occupations that fit the RFC with a sit/stand option with

3,300 jobs in the region: assembler (1,500 jobs), bench worker (900 jobs), and polisher (900 jobs).

The ALJ found that the VE’s testimony was consistent with the DOT. The ALJ concluded that Ms.

Rust was not disabled prior to February 26, 2008, for the purposes of CIB, and that Ms. Rust was

not disabled for the purposes of SSI.


The Social Security Act authorizes judicial review of the final decision of the agency and

indicates that the Commissioner’s factual findings must be accepted as conclusive if supported by

substantial evidence. 42 U.S.C. § 405(g) (2012). Thus, a court reviewing the findings of an ALJ

will reverse only if the findings are not supported by substantial evidence or if the ALJ has applied

an erroneous legal standard. See Briscoe v. Barnhart, 425 F.3d 345, 351 (7th Cir. 2005).

Substantial evidence consists of “such relevant evidence as a reasonable mind might accept as


case 2:12-cv-00325-PRC document 18 filed 07/30/13 page 18 of 37

adequate to support a conclusion.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005) (quoting

Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003)).

A court reviews the entire administrative record but does not reconsider facts, re-weigh the

evidence, resolve conflicts in evidence, decide questions of credibility, or substitute its judgment

for that of the ALJ. See Boiles v. Barnhart, 395 F.3d 421, 425 (7th Cir. 2005); Clifford v. Apfel, 227

F.3d 863, 869 (7th Cir. 2000); Butera v. Apfel, 173 F.3d 1049, 1055 (7th Cir. 1999). Thus, the

question upon judicial review of an ALJ’s finding that a claimant is not disabled within the meaning

of the Social Security Act is not whether the claimant is, in fact, disabled, but whether the ALJ

“uses the correct legal standards and the decision is supported by substantial evidence.” Roddy v.

Astrue, 705 F.3d 631, 636 (7th Cir. 2013) (citing O’Connor-Spinner v. Astrue, 627 F.3d 614, 618

(7th Cir. 2010); Prochaska v. Barnhart, 454 F.3d 731, 734-35 (7th Cir. 2006); Barnett v. Barnhart,

381 F.3d 664, 668 (7th Cir. 2004)). “[I]f the Commissioner commits an error of law,” the Court may

reverse the decision “without regard to the volume of evidence in support of the factual findings.”

White v. Apfel, 167 F.3d 369, 373 (7th Cir. 1999) (citing Binion v. Chater, 108 F.3d 780, 782 (7th

Cir. 1997)).

At a minimum, an ALJ must articulate her analysis of the evidence in order to allow the

reviewing court to trace the path of her reasoning and to be assured that the ALJ considered the

important evidence. See Scott v. Barnhart, 297 F.3d 589, 595 (7th Cir. 2002); Diaz v. Chater, 55

F.3d 300, 307 (7th Cir. 1995); Green v. Shalala, 51 F.3d 96, 101 (7th Cir. 1995). An ALJ must

“‘build an accurate and logical bridge from the evidence to [the] conclusion’ so that, as a reviewing

court, we may assess the validity of the agency’s final decision and afford [a claimant] meaningful

review.” Giles v. Astrue, 483 F.3d 483, 487 (7th Cir. 2007) (quoting Scott, 297 F.3d at 595)); see


case 2:12-cv-00325-PRC document 18 filed 07/30/13 page 19 of 37

also O’Connor-Spinner, 627 F.3d at 618 (“An ALJ need not specifically address every piece of

evidence, but must provide a ‘logical bridge’ between the evidence and h[er] conclusions.”);

Zurawski v. Halter, 245 F.3d 881, 889 (7th Cir. 2001) (“[T]he ALJ’s analysis must provide some

glimpse into the reasoning behind [the] decision to deny benefits.”).


To be eligible for disability benefits, a claimant must establish that she suffers from a

“disability” as defined by the Social Security Act and regulations. The Act defines “disability” as

an inability to engage in any substantial gainful activity by reason of any medically determinable

physical or mental impairment that can be expected to result in death or that has lasted or can be

expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 423(d)(1)(A),

1382c(a)(3)(A) (2012). To be found disabled, the claimant’s impairment must not only prevent her

from doing her previous work, but considering her age, education, and work experience, it must also

prevent her from engaging in any other type of substantial gainful activity that exists in significant

numbers in the economy. 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); 20 C.F.R. §§ 404.1520(e)-(f),


When a claimant alleges a disability, Social Security regulations provide a five-step inquiry

to evaluate whether the claimant is entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4).

The steps are: (1) Is the claimant engaged in substantial gainful activity? If yes, the claimant is not

disabled, and the claim is denied; if no, the inquiry proceeds to step two; (2) Does the claimant have

an impairment or combination of impairments that are severe? If not, the claimant is not disabled,

and the claim is denied; if yes, the inquiry proceeds to step three; (3) Do(es) the impairment(s) meet

or equal a listed impairment in the appendix to the regulations? If yes, the claimant is automatically


case 2:12-cv-00325-PRC document 18 filed 07/30/13 page 20 of 37

considered disabled; if not, then the inquiry proceeds to step four; (4) Can the claimant do the

claimant’s past relevant work? If yes, the claimant is not disabled, and the claim is denied; if no,

then the inquiry proceeds to step five; (5) Can the claimant perform other work given the claimant’s

RFC, age, education, and experience? If yes, then the claimant is not disabled, and the claim is

denied; if no, the claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4)(I)-(v), 416.920(a)(4)(I)-(v); see

also Scheck v. Barnhart, 357 F.3d 697, 699-700 (7th Cir. 2004).

At steps four and five, the ALJ must consider an assessment of the claimant’s residual

functional capacity (“RFC”). The RFC “is an administrative assessment of what work-related

activities an individual can perform despite [her] limitations.” Dixon v. Massanari, 270 F.3d 1171,

1178 (7th Cir. 2001). The RFC should be based on evidence in the record. Craft v. Astrue, 539 F.3d

668, 676 (7th Cir. 2008) (citing 20 C.F.R. § 404.1545(a)(3)). The claimant bears the burden of

proving steps one through four, whereas the burden at step five is on the ALJ. Zurawski, 245 F.3d

at 886; see also Knight v. Chater, 55 F.3d 309, 313 (7th Cir. 1995).


Ms. Rust presents four arguments for reversal and remand of the ALJ’s decision. First, Ms.

Rust argues that the ALJ improperly discounted the opinions of treating sources and relied upon out-

dated, non-examining opinions in her RFC assessment. Second, Ms. Rust argues that the ALJ failed

to include in either the RFC or the hypothetical question to the VE the frequency with which Ms.

Rust would need to alternate between sitting and standing, as required by Social Security

Administration Rulings. Third, Ms. Rust contends that the ALJ committed an error of law when she

found that migraine headaches were a severe impairment but then did not include any restrictions

related to headaches in either the RFC or in the hypotheticals to the VE. Finally, Ms. Rust contends


case 2:12-cv-00325-PRC document 18 filed 07/30/13 page 21 of 37

that the VE identified an occupation that is beyond her specific vocational preparation level. The

Court considers each argument in turn.

A. Residual Functional Capacity


Weight of Medical Opinion Evidence

Ms. Rust argues that the ALJ committed legal error by failing to give deference to the

opinions of treating sources Drs. Gupta and Vyas. The Commissioner contends that the ALJ

properly evaluated the opinions of these treating sources and reasonably found that they should be

given less weight than the opinions of the non-examining State agency doctors.

The main distinction between a treating and a non-treating source is the length, frequency,

and nature of the relationship. See Simila v. Astrue, 573 F.3d 503, 514 (7th Cir. 2009) (stating that

by definition a consulting examiner is non-treating source); 20 C.F.R. § 404.1502. A treating source

has or has had an ongoing relationship with the claimant; a physician may provide treatment or a

diagnosis and still be considered a non-treating source because of the lack of an ongoing

relationship. See id. Upon examination of the record, Dr. Gupta had only seen Ms. Rust three times,

and one of those visits included assistance with disability paperwork.4 Nevertheless,

notwithstanding the short length of treatment, the Court considers Dr. Gupta to be a treating source

because Ms. Rust appears to have been seeing him for ongoing treatment. As for Dr. Vyas, the

Court finds that she is a treating source; as of January 7, 2011, she had seen Ms. Rust regularly since


4 This date coincided with the date of Dr. Gupta’s completion of the January 25, 2011 Medical Assessment of

Ability to Do Work-Related Activities (Mental).

5 Ms. Rust correctly notes that the Commissioner erred by asserting in the response brief that Dr. Vyas saw Ms.

Rust only one time in 2006. Ms. Rust is also correct that the ALJ did not make this error in her decision.


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When evidence in the record, including medical opinions, is inconsistent, the ALJ will

weigh all relevant evidence. 20 C.F.R. § 404.1520b(b). When a treating source’s opinion is well-

supported by objective medical findings and not inconsistent with other evidence it is entitled to

controlling weight. 20 C.F.R. § 404.1527(c)(2). Generally, a treating source’s opinion is given

more weight than a non-treating source’s opinion. Id. In deciding how much weight to give a

doctor’s opinion, the factors an ALJ considers are: the length, nature, and extent of the physician

and claimant’s treatment relationship; whether the physician supported his or her opinions with

sufficient explanations; how consistent the opinion is with the record as a whole; whether the

physician specializes in the medical conditions at issue; and other factors, such as the amount of

understanding of the disability programs and their evidentiary requirements or the extent to which

an acceptable medical source is familiar with other information in the claimant’s case. 20 C.F.R.

§§ 404.1527(c)(2)(i)-(ii), (c)(3)-(6); see also Elder v. Astrue, 529 F.3d 408, 415 (7th Cir. 2008).

If an ALJ discounts a treating source’s opinion after considering the factors, a court must

allow that decision to stand if the ALJ “minimally articulate[d]” her reasons, which is a deferential

standard the Seventh Circuit has deemed “lax.” Elder, 529 F.3d at 415 (quoting Berger v. Astrue,

516 F.3d 539, 545 (7th Cir. 2008) (citing Rice v. Barnhart, 384 F.3d 363, 372 (7th Cir. 2004))); see

Schmidt v. Astrue, 496 F.3d 833, 842 (7th Cir. 2007) (“An ALJ thus may discount a treating

physician’s medical opinion if it . . . ‘is inconsistent with the opinion of a consulting physician or

when the treating physician’s opinion is internally inconsistent, as long as [s]he minimally

articulates [her] reasons for crediting or rejecting evidence of disability.’” (quoting Skarbek v.

Barnhart, 390 F.3d 500, 503 (7th Cir. 2004)). The Court is mindful that a review of a denial of


case 2:12-cv-00325-PRC document 18 filed 07/30/13 page 23 of 37

benefits is constrained to the rationale provided by the ALJ. Scott, 647 F.3d at 739 (citing Steele

v. Barnhart, 290 F.3d 936, 941 (7th Cir. 2002); SEC v. Chenery Corp., 318 U.S. 80, 93-95 (1943)).

As an initial matter, Ms. Rust contends that the ALJ’s decision relies “too heavily on

meaningless Agency boilerplate macros that lack specificity.” Pl. Br., p. 11 (citing Bjornson v.

Apfel, 671 F.3d 640, 645 (7th Cir. 2012)). Ms. Rust is correct that an ALJ cannot simply use

boilerplate language without linking the conclusory statements to the evidence; however, the use of

boilerplate language does not automatically dictate remand. See Pepper v. Colvin, 712 F.3d 351,

367-68 (7th Cir. 2013) (discussing boilerplate language in the context of a credibility determination)

(citing Shideler v. Astrue, 688 F.3d 306, 311-12 (7th Cir. 2012); Getch v. Astrue, 539 F.3d 473, 483

(7th Cir. 2008)). As discussed below, this is not a case in which the ALJ inserted boilerplate

conclusions regarding the weight given to opinion evidence in lieu of analysis; the Court finds that

the ALJ has met at least the minimal standard of articulating her reasoning.

As to the opinion of Dr. Gupta, the ALJ first dismissed Dr. Gupta’s conclusion that Ms.

Rust’s mental issues affect her ability to “hold a job at this time,” (AR 28) (citing Exhibit 13F),

because the ultimate finding of disability is reserved for the Commissioner. The ALJ was correct

to reach this conclusion; doctors and other treating sources are not entitled to deference on whether

or not an individual is disabled. 20 C.F.R. § 404.1527(d)(3). The ALJ noted that Dr. Gupta

indicated that Ms. Rust was poor in dealing with work stresses, maintaining attention and

concentration, understanding, remembering and carrying out complex job instructions, and ability

to relate predictably in social situations. The ALJ also noted Dr. Gupta’s reliance on Ms. Rust’s

depression, crying episodes, and poor sleep in formulating his opinion. The ALJ gave “little weight”

to the opinions of Dr. Gupta that are not reserved to the Commissioner because they are not well


case 2:12-cv-00325-PRC document 18 filed 07/30/13 page 24 of 37

supported by medically acceptable clinical and laboratory diagnostic techniques and they are not

consistent with other substantial evidence in the claimant’s case record, including the claimant’s

testimony at her hearing. (AR 28-29); see 20 C.F.R. §§ 404.1527(c)(2); SSR 96-2p, 1996 WL

374188, at *2 (July 2, 1996). Unlike the ALJ in Roddy who failed to explicitly address the treating

doctor’s opinion, the ALJ here summarized and evaluated the opinion of Dr. Gupta. See Roddy, 705

F.3d at 636.

Ms. Rust argues only that the ALJ did not provide a sufficiently detailed explanation for her

conclusion to give Dr. Gupta’s opinion “little weight;” notably, Ms. Rust does not argue that Dr.

Gupta’s opinion should have been given controlling weight. Ms. Rust does not point to any

evidence in Dr. Gupta’s treatment notes that support his assessment, and Ms. Rust has not identified

any other objective evidence to support Dr. Gupta’s assessment. Although Ms. Rust is correct that

the ALJ did not articulate and analyze each of the factors to be considered when weighing opinion

evidence, she does not identify any of the factors or argue how they should have been weighed

differently. In fact, Ms. Rust does not discuss any facts regarding her mental impairment in this

section of her brief; her specific arguments are limited to her physical impairments. A review of Dr.

Gupta’s few treatment records show that Ms. Rust was cooperative and well-groomed with an

appropriate, albeit depressed, affect, and that her memory, orientation, cognition, attention, and

thought content were normal. During her third visit with Dr. Gupta, Ms. Rust reported a reasonable

response to medication with some residual depression and that she was maintaining sobriety.

The ALJ reasonably found that Dr. Gupta’s opinion was inconsistent with the other evidence

of record, given that the state agency reviewing psychologist reviewed the evidence following the

consultative evaluation and determined that Ms. Rust did not even have a “severe” impairment. In


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contrast, the ALJ found that Ms. Rust did suffer from a “severe” mental impairment and

incorporated nonexertional limitations in the RFC, specifically that Ms. Rust should have no more

than occasional contact with supervisors, coworkers, and the public. Ms. Rust does not contest this

nonexertional limitation or argue that it does not properly account for her mental impairments.

Thus, although the ALJ could have provided a more detailed analysis of the evidence and the

factors, the Court finds that the ALJ minimally articulated her reasons for discounting Dr. Gupta’s


Next, Plaintiff disputes the ALJ’s articulation of the weight given to Dr. Vyas’ opinion. The

ALJ first summarized Dr. Vyas’ opinion that Ms. Rust could only lift or carry less than 5 pounds

due to her lower back pain, that she could only stand, walk, or sit less than one-half hour out of an

8-hour workday, and that she could never climb, balance, stoop, crouch, kneel, crawl, bend, or twist

based on gait disturbance and low back pain. The ALJ also noted Dr. Vyas’ opinion that Ms. Rust

is limited in reaching, handling, and pushing and pulling because of constant pain, that Ms. Rust has

restrictions in heights, moving machinery, temperature extremes, chemicals, dust, noise, fumes, and

humidity, and that Ms. Rust would require more than two breaks in an 8-hour period. The ALJ

found these opinions “extreme” and unsupported by the medical evidence of record, specifically Dr.

Vyas’ own office treatment records, and gave the opinion “little weight.” (AR 29). As with the

opinion of Dr. Gupta, the ALJ here summarized and evaluated the opinion of Dr. Vyas. Compare

Roddy, 705 F.3d at 636. Again, Ms. Rust does not identify what factors should have been weighed

differently in the ALJ’s consideration of Dr. Vyas’ opinion.

In her reasoning, the ALJ also noted that Ms. Rust testified that she could lift and carry at

least 20 pounds and that her psychological problems were more severe than her back and knee


case 2:12-cv-00325-PRC document 18 filed 07/30/13 page 26 of 37

difficulties. In contrast, Dr. Vyas opined that Ms. Rust’s ability to work was most restricted by her

“pain” and “gait disturbance.” Ms. Rust argues that her testimony that she could lift 20 pounds on

a “single occasion” is not inconsistent with Dr. Vyas’ opinion. (Pl. Br., p. 11). However, this is a

mischaracterization of Ms. Rust’s testimony. When asked how much she thinks she can lift and

carry, she responded, “I would say probably 20 pounds,” (AR 78); there was no qualification as to

this being for a “single occasion.” Ms. Rust also notes that “diagnostic testing has in fact confirmed

that [Ms. Rust] suffers from chronic L5-S1 radiculopathy to the left lower extremity.” (Pl. Br., p.

12).6 However, there is no dispute that the ALJ acknowledged that Ms. Rust suffers from some pain

and, in fact, included the result of the same diagnostic test in her review of Ms. Rust’s medical


The consultative physical examination was essentially normal other than a limping gait

without an assistive device and limited mobility in Ms. Rust’s back and left knee. Moreover, the

state agency reviewing physicians reviewed the record, including Dr. Vyas’ examination notes and

the results of the diagnostic testing and concluded that Ms. Rust could perform the full range of light

work. Although the ALJ could have provided a more thorough analysis, her explanation for the

weight given to Dr. Vyas’ opinion was sufficient for the Court to follow her reasoning from the

evidence to the conclusion.7

6 Dr. Vyas’ impression of the EMG testing was “suggestive of L5-S1 radiculopathy.” (AR 456).

7 Ms. Rust also appears to suggest that the ALJ improperly gave less weight to Dr. Snyder, the State agency
psychological examiner. Pl. Br., p. 10 (“In this case, the ALJ rejected the opinion of the treating neurologist, the treating
psychiatrist, and SSA’s own consultative psychologist.”). However, Ms. Rust offers no argument or analysis as to the
weight given to Dr. Snyder’s opinion, and her arguments regarding treating sources are inapplicable as Dr. Snyder is,
by definition, a non-treating source. See 20 C.F.R. § 404.1502; Simila v. Astrue, 573 F.3d 503, 514 (7th Cir. 2009).


case 2:12-cv-00325-PRC document 18 filed 07/30/13 page 27 of 37

Ms. Rust’s only argument against the weight given to the consultative reviewers is the

comment that “the ALJ relied upon the opinions of non-examining State agency medical sources

who offered their opinions long before the record was complete.” (Pl. Br., p. 10). The opinions of

the State agency doctors were a little over a year old at the time of the hearing and decision: State

agency opinions were issued November 12, 2009, and February 25, 2010, for the psychological

evaluation, and December 11, 2009, and March 3, 2010, for physical evaluation; the hearing was

conducted on February 10, 2011; and the decision was issued on March 24, 2011. Ms. Rust cites

Jelinek in support of the contention that relying on “out-dated” opinions of State agency doctors is

a cause for remand. This reliance is misplaced; Jelinek dismissed the Commissioner’s use of State

agency opinions in defense of the ALJ’s decision when the ALJ herself did not rely on the opinions

in the decision. Jelinek v. Astrue, 662 F.3d 805, 813 (7th Cir. 2011).8 In this case, the ALJ relied

upon the opinions of the State agency doctors and afforded them significant weight.

The facts of the two cases also differ. In Jelinek, the State agency opinions were over two

years old at the time of the hearing; in this case, the opinions of the State agency doctors were, at

most, a little over a year old at the time of the hearing. More importantly, Ms. Rust has not

identified any evidence that was generated after these reviewers gave their opinions that in any way

supports greater limitations than imposed or that would change the weight the ALJ should have

given to the opinions. The later-occurring evidence was treatment notes from five visits to Dr. Vyas

(only one of significance is a request for an increase in daily dosage of Vicodin from two to four on

January 7, 2011), one visit to Porter-Starker (not with Dr. Gupta), three visits to Dr. Gupta, four

8 In her reply brief, Plaintiff points out a citation in the Commissioner’s brief that cited the prior version of the
C.F.R. See Pl. Reply, p. 3 n.1. In a similar vein, the Court notes that, in her opening brief, Ms. Rust incorrectly cites
Jelinek as contained in the F.2d reporter instead of the F.3d reporter. See Pl. Br., p. 10.


case 2:12-cv-00325-PRC document 18 filed 07/30/13 page 28 of 37

visits to Dr. Bhojraj (for ailments unrelated to the disability claim), and the medical assessments

completed by Drs. Vyas and Gupta. The Court finds that the ALJ did not err in the weight afforded

their opinions. 20 C.F.R. § 404.1527(e)(2)(ii).

Based on the foregoing, the ALJ did not err in the weight given to Ms. Rust’s treating source



Sit-Stand Option

Ms. Rust contends that the ALJ committed legal error by failing to follow SSRs 83-12 and

96-9p by not including in either the RFC