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IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF MISSOURI

SOUTHERN DIVISION

CHRISTOPHER THOMAS,

Plaintiff,

v.

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,

Defendant.

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Case No.
12-3203-CV-S-REL-SSA

ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

Plaintiff Christopher Thomas seeks review of the final decision of the

Commissioner 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 the

ALJ erred in (1) giving little weight to the opinions of plaintiff’s treating providers, Dr.

Glynn and Dr. Dimalanta; (2) in formulating plaintiff’s residual functional capacity; and

(3) in finding plaintiff’s subjective allegations not credible. 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 motion for summary judgment will be denied and the

decision of the Commissioner will be affirmed.

I.

BACKGROUND

Plaintiff has prior applications for disability benefits dated 1989, 1990, two in

1991 (with a period of disability awarded from 1991 through 1997), and in 2001 (Tr. at

12). On May 15, 2006, plaintiff applied for disability benefits alleging that he had been

disabled since March 31, 2003. Plaintiff’s disability stems from back pain, depression

and panic attacks. Plaintiff’s application was denied on July 13, 2006. On September

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4, 2008, a hearing was held before an Administrative Law Judge. On September 25,

2008, the ALJ found that plaintiff was not under a “disability” as defined in the Act. He

requested a review with the Appeals Council on November 13, 2008, but then filed a

new application for disability benefits on February 10, 2009. SSA granted his

application on March 26, 2009, finding that he had been disabled since September 26,

2008. On April 27, 2010, the Appeals Council issued an order reopening and

combining all three of plaintiff’s prior applications and remanding them for a new

hearing and determination. Hearings were held on July 27, 2010, and September 30,

2010. On October 21, 2010, the ALJ found plaintiff not disabled. On February 16,

2012, the Appeals Council denied plaintiff’s request for review.

II.

STANDARD FOR JUDICIAL REVIEW

Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for judicial review of a

“final decision” of the Commissioner. The standard for judicial review by the federal

district court is whether the decision of the Commissioner was supported by substantial

evidence. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971);

Mittlestedt v. Apfel, 204 F.3d 847, 850-51 (8th Cir. 2000); Johnson v. Chater, 108 F.3d

178, 179 (8th Cir. 1997); Andler v. Chater, 100 F.3d 1389, 1392 (8th Cir. 1996). The

determination of whether the Commissioner’s decision is supported by substantial

evidence requires review of the entire record, considering the evidence in support of

and in opposition to the Commissioner’s decision. Universal Camera Corp. v. NLRB,

340 U.S. 474, 488 (1951); Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir. 1989). “The

Court must also take into consideration the weight of the evidence in the record and

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apply a balancing test to evidence which is contradictory.” Wilcutts v. Apfel, 143 F.3d

1134, 1136 (8th Cir. 1998) (citing Steadman v. Securities & Exchange Commission, 450

U.S. 91, 99 (1981)).

Substantial evidence means “more than a mere scintilla. It means such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Richardson v. Perales, 402 U.S. at 401; Jernigan v. Sullivan, 948 F.2d 1070, 1073 n. 5

(8th Cir. 1991). However, the substantial evidence standard presupposes a zone of

choice within which the decision makers can go either way, without interference by the

courts. “[A]n administrative decision is not subject to reversal merely because

substantial evidence would have supported an opposite decision.” Id.; Clarke v.

Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988).

III.

BURDEN OF PROOF AND SEQUENTIAL EVALUATION PROCESS

An individual claiming disability benefits has the burden of proving he is unable

to return to past relevant work by reason of a medically-determinable physical or mental

impairment which 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). 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 Commissioner to establish that there is some other type of

substantial gainful activity in the national economy that the plaintiff can perform.

Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir. 2000); Brock v. Apfel, 118 F. Supp. 2d

974 (W.D. Mo. 2000).

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The Social Security Administration has promulgated detailed regulations setting

out a sequential evaluation process to determine whether a claimant is disabled. These

regulations are codified at 20 C.F.R. §§ 404.1501, et seq. The five-step sequential

evaluation process used by the Commissioner is outlined in 20 C.F.R. § 404.1520 and

is summarized as follows:

1.

Is the claimant performing substantial gainful activity?

Yes = not disabled.
No = go to next step.

2.

Does the claimant have a severe impairment or a combination of

impairments which significantly limits his ability to do basic work activities?

No = not disabled.
Yes = go to next step.

3.

Does the impairment meet or equal a listed impairment in Appendix 1?

Yes = disabled.
No = go to next step.

4.

Does the impairment prevent the claimant from doing past relevant work?

No = not disabled.
Yes = go to next step where burden shifts to Commissioner.

5.

Does the impairment prevent the claimant from doing any other work?

Yes = disabled.
No = not disabled.

IV.

THE RECORD

The record consists of the testimony of plaintiff, medical expert Arthur Lorber,

M.D., and vocational expert Terri Crawford, in addition to documentary evidence.

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Because plaintiff’s arguments center on the opinions of Dr. Glynn and Dr. Dimalanta in

their Medical Source Statements, I will set out those reports here:

Medical Source Statement - Physical

On May 28, 2010, Paul Glynn, D.O., completed a Medical Source Statement -

Physical (Tr. at 602-603). Dr. Glynn found that plaintiff could lift and carry 5 pounds

frequently and 10 pounds occasionally. He could stand or walk continuously for less

than 15 minutes and for 1 hour per workday. He could sit for 15 minutes at a time and

for 2 hours total per workday. He was limited in his ability to push or pull with his hands

and/or feet; however, no description of the limitation was provided. He could never

stoop, kneel or crawl. He could occasionally climb, balance, crouch, or reach. He

could frequently handle, finger, feel, see, speak, or hear. Despite finding that plaintiff

can occasionally balance, Dr. Glynn indicated that plaintiff needs a cane to walk or

balance. He found that plaintiff should avoid any exposure to extreme cold, extreme

heat, vibration, hazards and heights; he should avoid moderate exposure to weather

and wetness/humidity; and he should avoid concentrated exposure to dust and fumes.

He indicated that plaintiff needs to lie down frequently due to pain. He wrote, “spends

6-7 hours during day lying down”. Finally he indicated that the sedating side effects of

plaintiff’s medication affect his coordination.

Medical Source Statement - Mental

On October 27, 2006, Antonio Dimalanta, M.D., completed a Medical Source

Statement - Mental (Tr. at 555-556). Dr. Dimalanta found that plaintiff was not

significantly limited in the following:

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P The ability to understand and remember very short and simple instructions

P The ability to carry out very short and simple instructions

P The ability to sustain an ordinary routine without special supervision

P The ability to make simple work-related decisions

P The ability to ask simple questions or request assistance

P The ability to maintain socially appropriate behavior and to adhere to basic

standards of neatness and cleanliness

P The ability to be aware of normal hazards and take appropriate precautions

He found that plaintiff was moderately limited in the following:

P The ability to remember locations and work-like procedures

P The ability to interact appropriately with the general public

P The ability to respond appropriately to changes in the work setting

He found that plaintiff was markedly limited in the following:

P The ability to understand and remember detailed instructions

P The ability to carry out detailed instructions

P The ability to perform activities within a schedule, maintain regular attendance,

and be punctual within customary tolerances

P The ability to work in coordination with or proximity to others without being

distracted by them

P The ability to accept instructions and respond appropriately to criticism from

supervisors

P The ability to get along with coworkers or peers without distracting them or

exhibiting behavioral extremes

P The ability to set realistic goals or make plans independently of others

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He found that plaintiff was extremely limited in the following:

P The ability to maintain attention and concentration for extended periods

P The ability to complete a normal workday and workweek without interruptions

from psychologically based symptoms and to perform at a consistent pace
without an unreasonable number and length of rest periods

P The ability to travel in unfamiliar places or use public transportation

ALJ’s Residual Functional Capacity Assessment

The ALJ found that plaintiff can lift up to 10 pounds occasionally and 5 pounds

frequently; stand and walk up to 2 hours but no longer than 30 minutes at a time; sit for

6 to 8 hours per day; should be able to alternate sitting and standing at 30-minute

intervals without moving away from the work station; can never crawl or kneel; should

avoid climbing or exposure to significant unprotected heights; can go up no more than

three steps at a time; should avoid potentially dangerous and/or unguarded moving

machinery and commercial driving; cannot walk on uneven surfaces; can have no

exposure to extreme vibration; should avoid extremes of cold and humidity; can no use

foot controls; must have the ability to wear shoes of his choice but exclude safety boots;

must have a cane for walking; and is limited to simple repetitive job instructions with no

public contact and no more than minimal contact with co-workers and supervisors, i.e.,

proximity would be permitted but teamwork duties and responsibilities would be

excluded.

The differences between the ALJ’s findings and the opinions of Dr. Glynn and

Dr. Dimalanta are as follows: Dr. Glynn believes plaintiff is limited to standing or

walking for 1 hour per day and for less than 15 minutes at a time, but the ALJ found

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that plaintiff could stand or walk for 2 hours per day and for 30 minutes at a time. Dr.

Glynn believes plaintiff is limited to sitting for 2 hours per day and for 15 minutes at a

time, but the ALJ found that plaintiff can sit for 6 to 8 hours per day and for 30 minutes

at a time. Dr. Glynn found that plaintiff would need1 to lie down frequently and for up to

6 or 7 hours per day due to pain and that the sedating side effects of his medication

affect his coordination.

Dr. Dimalanta found that plaintiff was extremely limited in his ability to maintain

attention and concentration for extended periods; complete a normal workday and

workweek without interruption from psychologically based symptoms and perform at a

consistent pace without an unreasonable number and length of rest periods; and his

ability to travel in unfamiliar places or use public transportation. He found that plaintiff

was markedly limited in his ability to perform activities within a schedule, maintain

regular attendance, and be punctual within customary tolerances; and accept

instructions and respond appropriately to criticism from supervisors. The ALJ found

that plaintiff is limited to simple repetitive job instructions with no public contact and no

more than minimal contact with co-workers and supervisors, i.e., proximity would be

permitted but teamwork duties and responsibilities would be excluded.

A.

ADMINISTRATIVE REPORTS

The record contains the following administrative reports:

1Dr. Glynn actually wrote, “spends 6-7 hrs during day lying down”. He did not say
that plaintiff needs to lie down, only that he does lie down.

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Earnings Record

The record establishes that plaintiff earned the following income from 1985

through 2008:

Year

1985

1986

1987

1988

1989

1990

1991

1992

1993

1994

1995

1996

1997

Earnings

$ 222.11

959.78

0.00

5,667.82

4,274.28

2,785.07

540.46

0.00

0.00

0.00

0.00

13,627.87

$ 14,152.52

(Tr. at 302, 309, 350).

Function Report

Year

1998

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

2010

Earnings

$ 1,383.02

12,676.61

3,439.20

0.00

4,841.62

5,514.94

0.00

473.62

43.12

0.00

0.00

0.00

0.00

In a Function Report dated June 10, 2006 (about four and a half months before

Dr. Dimalanta’s Medical Source Statement was prepared), plaintiff reported that it takes

him about 20 minutes every morning to get out of bed (Tr. at 366-373). He watches

television almost all day. He alternates sitting in a chair, lying down on the couch, and

standing; and he takes a nap during the day. Plaintiff helped get his children food,

changed their diapers, and watched over them during the day. He also cared for a dog

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and a cat. His 10-year-old son and 11-year-old son helped take care of the animals

and helped change diapers. Plaintiff reported no trouble with personal care. Plaintiff

said he would forget when he last took a shower and his wife would have to remind him

to shower. Plaintiff fixed sandwiches for himself and his kids during the day, and his

wife would do the cooking when she got home. Plaintiff did not cook beyond making

sandwiches even before his alleged onset date (Tr. at 368). Plaintiff would try to do

some laundry, he tried to do some dishes, but his wife would generally have to finish

those tasks and clean the house.

Plaintiff reported that he would go outside five times a day to smoke or stand on

the porch. When he went out, he could walk, drive a car, or ride in a car, and he was

able to go out alone. Plaintiff only drove about twice a week because of his panic

attacks and his medication. He was able to handle a savings account, use a

checkbook, count change and pay bills. His hobbies included watching television and

playing video games. He had no problems getting along with family, friends, neighbors

or others.

Plaintiff’s impairments affect his ability to lift, squat, bend, stand, walk, sit, climb

stairs, remember, complete tasks, and concentrate. He has no difficulty with reaching,

kneeling, talking, hearing, understanding, following instructions, using his hands, or

getting along with others. He can walk 50 feet, he can pay attention for 20 minutes, he

does not finish what he starts, but he follows written instructions fairly well. He

generally gets along with everyone “just fine”. Stress sometimes causes panic attacks,

and he does not handle changes in routine well.

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Disability Report

In a Disability Report, plaintiff indicated that he has hip/back problems, high

blood pressure, depression, panic attacks, and a left heel tumor (Tr. at 375-385). He

takes so much medication that he is foggy all day long. Plaintiff indicated that his

alleged onset date was March 31, 2003, but that he stopped working on November 3,

2005. He was fired because he took pain killers.

Work History Report

Plaintiff worked as a pizza delivery driver in November 2005 (Tr. at 385). He did

temporary work in parts remanufacturing from October 2005 through November 2005.

He did temporary work in box manufacturing in December 2003. He was a customer

service clerk at WalMart from November 2003 to December 2003. He was a floor

clearer in a supermarket for one or two months in early 2003. He was an assistant

manager at an oil change business from August 2002 to March 2003.

Function Report

In a Function Report dated March 9, 2009, plaintiff reported that he spends

about an hour in bed each morning when he first gets up (Tr. at 416-423). He spends

all day sitting or lying down watching television. He has to get up and walk around the

house for a little bit to keep his body from tightening back up. He does that all day until

it is time to go to bed. This has been his typical day for about three years, or since

early 2006.

When asked what he was able to do before his condition that he cannot do now,

plaintiff wrote that he used to go fishing and camping, he used to drive around on back

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country roads, and he “used to be able to support myself and my family”. Plaintiff

reported that in the last 3 years he has taken about 10 baths. He shaves about once a

month. He only washes his hair when he takes a bath. His mom tries to get him to take

a shower, but he does not want to. He eats one sandwich a day. He said that he used

to cook for his kids but he no longer does because he and his wife got a divorce. He is

able to do a little laundry and hand wash dishes for about ten minutes; his mom was

doing the rest of the household chores because he had moved in with her. Plaintiff

goes outside 15 to 20 times a day to smoke. Plaintiff had stopped driving due to panic

attacks and side effects from medication. He was able to shop in stores for soda and

snacks. He was able to handle a savings account, pay bills and count change. He no

longer had any hobbies, and he did not go out of the house except to see his doctor.

His impairments affect his ability to lift, squat, bend, stand, walk, sit, kneel, climb stairs,

remember, complete tasks, and concentrate. His impairments do not affect his ability to

reach, talk, hear, see, understand, follow directions, use his hands or get along with

others. He follows written directions well and he gets along well with others. Plaintiff

had begun using a cane, but no doctor had prescribed it (Tr. at 422).

B.

SUMMARY OF MEDICAL RECORDS

On October 5, 2000, plaintiff was seen at St. John’s Regional Health Center for

complaints of low back and bilateral thigh and leg pain (Tr. at 582-584). Plaintiff was 31

years of age. He described how, in 1996, he had been lifting a heavy engine part when

his back gave out. It did not improve and had become progressively worse. He had

been able to maintain his employment until February 2000 when his pain became

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unbearable. Plaintiff had participated in physical therapy and noted some

improvement. Plaintiff reported a long-term problem with panic attacks for which he

had been taking Lorazepam for some time. He was also on Paxil, an antidepressant.

He used Vicodin (narcotic) for pain. Plaintiff was smoking a pack of cigarettes per day.

Plaintiff was observed to walk with a slightly antalgic gait. He had no back

tenderness but some decreased range of motion. Straight leg raising elicited pain

bilaterally, worse on the right. Curtis Evenson, M.D., reviewed MRI scans which

showed decrease signed at L4-5 and L5-S1, a bulging disc at L4-5, and a moderately-

sized central protrusion at L5-S1. Neither of these caused any nerve root or thecal sac

embarrassment. “In regard to his smoking, I counseled him on the problems with

smoking associated with degenerative disc disease. I have shown him how his cervical

spine and his lower spine are already undergoing significant dessication and that he

really should consider smoking cessation.” Dr. Evenson recommended a steroid

injection and continued physical therapy.

On October 13, 2000, plaintiff had a steroid injection in his back (Tr. at 580), and

on November 17, 2000, he saw Dr. Evenson for follow up (Tr. at 279). Plaintiff reported

that the injection increased his leg pain for about a week, then the pain was resolved for

a couple days, and then it came back. Plaintiff had another injection that day. On

December 5, 2000, plaintiff had a diagnostic discography2 (Tr. at 578). On December

11, 2000, plaintiff saw Dr. Evenson to go over the results of the discography (Tr. at

2Lumbar discography is an injection technique used to evaluate patients with back
pain who have not responded to extensive conservative (nonsurgical) care regimens.
The most common use of discography is for surgical planning prior to a lumbar fusion.

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577). Dr. Evenson discussed possible cervical fusion, “but again, smoking cessation

would be required prior to this. I am going to . . . have him contact Hammons for

smoking cessation.”

On July 10, 2001, plaintiff had an IDET3 treatment on his spine after having

stopped smoking (Tr. at 584).

On February 21, 2002, plaintiff was seen at Burrell Behavioral Health by Antonio

Dimalanta, M.D., a psychiatrist (Tr. at 514). Dr. Dimalanta noted that plaintiff was

taking Lorazepam and Paxil with good control except that the Paxil was causing

decreased sex drive. “He was just operated on his back and the surgery seems to have

helped.” Plaintiff agreed to try Wellbutrin to counter the sexual side effect of Paxil

“since he also is trying to quit smoking.” Plaintiff had taken Wellbutrin before with good

results but “did not take it long enough to try and quit smoking.” Plaintiff was having no

crying spells, no suicidal or homicidal ideation and no psychotic symptoms. He was

assessed with panic disorder with agoraphobia, stable on current medication; and

nicotine dependence.

On July 22, 2002, plaintiff returned to see Dr. Dimalanta (Tr. at 524-525).

Plaintiff had not started taking the Wellbutrin as directed. “He is fearful of change,

including taking another medication. . . . He stated that the current combination has

been the most helpful medication. . . . He has been married four years now, and they

3Using "live" X-ray imaging (fluoroscopy), a doctor inserts a hollow needle containing
a flexible tube (catheter) and heating element into the spinal disc. The catheter is
positioned in a circle in the outer layer (annulus) of the disc and is then slowly heated to
about 194EF. The heat is meant to destroy the nerve fibers and toughen the disc tissue,
sealing any small tears.

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have a two-and-a-half-year-old child. His wife has two boys from a previous marriage,

ages six and seven. Chris stays at home and takes care of the kids. The last time he

worked was April 2000. He does some yard work, earning maybe $75 a month.”

Plaintiff was smoking about 1 1/2 packs of cigarettes a day, but said he did not have the

money to get psychological testing as recommended by Dr. Clarke who was treating

plaintiff’s back. “He applied for disability and was turned down and did not appeal it. He

mostly stays at home and does some gardening. He enjoys playing video games. He

socializes with a best friend. They go fishing together.”

Plaintiff was observed to have good hygiene, was appropriately dressed, was

calm and “quite appropriate” in his responses. He had normal range of moods with no

crying. He had no paranoia, hallucinations, delusions, suicidal or homicidal ideations or

plan. He was assessed with panic disorder with agoraphobia, major depression in

remission, and nicotine dependence. His GAF was 63-70. Plaintiff still had Wellbutrin

samples from the last appointment, and he agreed to try them.

On December 12, 2002, plaintiff saw Dr. Dimalanta for a follow up (Tr. at 513).

Dr. Dimalanta discussed plaintiff’s not refilling his medication prescriptions and failing to

show up for appointments. He reminded plaintiff that he would be “dropped from the

program for two missed appointments.” Plaintiff had been working as an assistant

manager at a Quik Oil Change for the past two and a half months. “It affects his back

but he feels better with it.” Plaintiff was getting along with his wife, who was five months

pregnant.

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Plaintiff was observed to be a little irritable -- he had called Dr. Dimalanta’s office

to say he was running late, and he did not like the secretary’s “tone of voice.” Plaintiff

was not having panic attacks, crying spells, or suicidal thinking. He was assessed with

panic disorder without agoraphobia. “He has a past history of major depression, but

this is not a current problem.” Dr. Dimalanta continued plaintiff on his same

medications.

On February 2, 2003, plaintiff had x-rays of his lumbar spine and both hips due

to complaints of back and hip pain (Tr. at 463-464). The plates and screws from

plaintiff’s previous back surgery were in good position and alignment with no evidence

of malfunction or infection. His lumbar spine was normal post-operatively. He had a

deformity of the right femoral head and neck, and his left hip was normal.

On February 11, 2003, plaintiff saw Patrick McShane, a podiatrist, complaining of

pain on his left heel (Tr. at 490). He was assessed with neoplasm (an abnormal mass

of tissue) of unknown origin. Dr. McShane recommended an ultrasound and then

excision, and plaintiff agreed.

On February 13, 2003, plaintiff had an ultrasound of his left heel which revealed

a mass which measured 1.3 x 1.5 x 0.6 cm (Tr. at 462). The following day plaintiff had

the mass removed (Tr. at 471-472). “Has had it for approximately five years. Cannot

walk on it anymore for about one week.” Plaintiff listed his current medications as

Flexeril (muscle relaxer) and OxyContin (narcotic pain reliever). His past medical

history included only “back pain.” There is no mention of depression or panic attacks,

and plaintiff was clearly not taking any psychiatric medications at this time, even though

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a few months earlier Dr. Dimalanta had admonished him to start filling his prescriptions

and using them.

On February 18, 2003, plaintiff returned to see Dr. McShane for a recheck after

surgery (Tr. at 490). Dr. McShane indicated the wound was healing well and the mass

had been determined to be benign.

On February 25, 2003, plaintiff canceled his appointment with Dr. McShane

saying that his foot was doing fine (Tr. at 490). He did not reschedule.

On March 4, 2003, plaintiff called Dr. McShane’s office and reported pain in his

leg near where the tourniquet was (Tr. at 490). He was told to go to the emergency

room and be checked for a blood clot. He did go to the Emergency Room the same

day complaining of leg pain (Tr. at 466-470). The pain “started one day ago.” Plaintiff

continued to smoke. On exam his leg strength, tone, and range of motion were normal.

He had no tenderness or swelling. The doctor who had done the surgery two weeks

earlier to remove the mass from plaintiff’s heel had told him to go to the emergency

room to make sure he did not have a blood clot. An ultrasound was done and there

was no evidence of a blood clot. Plaintiff called Dr. McShane’s office back and reported

that he had had an ultrasound which showed no blood clot (Tr. at 489). “Doctor told

patient he had over done which made his leg sore.”

On March 5, 2003, plaintiff had half of his foot stitches taken out, and Dr.

McShane indicated that it was healing well (Tr. at 489). On March 13, 2003, Dr.

McShane removed the remaining stitches (Tr. at 489). He again noted the foot was

healing well and told plaintiff he could return to work in one week with no restrictions.

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March 31, 2003, is plaintiff’s alleged onset date.

Plaintiff cancelled his follow up appointment with Dr. McShane on April 7, 2003,

saying he was “doing great.” (Tr. at 489).

On June 13, 2003, plaintiff saw Dr. Dimalanta (Tr. at 512). “Chris was last seen

over three months ago. He missed his last appointment, since he has been working.

He works at night. He is doing well on his current medication: Paxil, 25 mgs CR

[continued release] and Lorazepam, 2 mg twice a day. He is aware he cannot stop the

Lorazepam because he has panic attacks. His depression is also controlled by the

Paxil. . . . He is married and gets along with his wife.” Plaintiff’s exam was normal, all

observations made by Dr. Dimalanta were normal. Plaintiff was assessed with major

depression in remission, and panic disorder controlled by medication.

On September 4, 2003, plaintiff saw Dimalanta for a follow up (Tr. at 522-523).

Christopher is being treated for major depression and panic attacks without
agoraphobia. He has done okay on Paxil, 25 mgs CR daily; Lorazepam, 2 mgs
twice a day. He has some sexual side effects from Paxil but otherwise is very
happy with the combination. He will bring his wife next time to discuss this
further, and I can also do an evaluation of the couple’s relationship.

He is being sued because of medical bills; otherwise, there are no other legal
problems.

He smokes two packs of cigarettes per day. He has tried hypnosis, patches,
gum and Wellbutrin with no help.

He is applying for disability after being turned down. He is not able to hold a job.
He worked a month ago and after one week he quit because his back and leg
were bothering him. Before that, he worked six months as an assistant manager
in a Quick Lube store. He was fired because of medical reasons.

* * * * *

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MENTAL STATUS
Chris came in appropriately dressed. He has good personal hygiene. He is alert
and oriented to the three spheres. There is no psychosis, paranoia, or delusions
and no suicidal thinking or plans. He has good insight.

Dr. Dimalanta assessed major depression in remission, panic disorder without

agoraphobia, and a GAF of 60 currently and 60 over the past year. Plaintiff’s

medications were refilled and he was given samples of Paxil.

On February 19, 2004, plaintiff was seen by his podiatrist, Dr. McShane (Tr. at

489). Plaintiff said he thought the mass on his heel had grown back. Plaintiff had two

small lipomas (fatty tumors) in the “fat pad” of his foot. Dr. McShane told him he could

have them removed, or he could “live with” the condition. Plaintiff opted to try

temporary padding, and Dr. McShane recommended a particular insole.

On February 23, 2004, plaintiff returned to see Dr. Dimalanta and brought his

nine-year-old son (Tr. at 509). “He reported having problems with discipline and the

kids not minding including the four-year-old. We discussed referring him to family

therapy which is what he wants.” Plaintiff reported having “maybe three” panic attacks

in the past three months. “His pain medication is regulated by Dr. Clarke, his primary

care physician. It helps his pain, but he is dependent on the narcotics.” Plaintiff

reported that he was “quitting smoking” and “seems to be doing okay with this.” Plaintiff

had gained some weight and was getting more active. He weighed 197 pounds. “He is

not employed. He stays at home and takes care of the chores and the kids.” Plaintiff

was observed to be dressed casually and he had good personal hygiene. There was

no psychosis, paranoia or agitation. There was no noted anxiety, plaintiff had good

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insight and compliance was good. Plaintiff was told to take an additional Lorazepam

tablet if needed for panic attacks, and he was given an additional ten pills in his monthly

prescription.

On February 26, 2004, plaintiff cancelled his appointment with Dr. McShane, the

podiatrist (Tr. at 489).

On June 11, 2004, plaintiff saw Dr. Dimalanta for a follow up (Tr. at 507).

Plaintiff reported that he had been gradually gaining weight because his back problem

was causing him to be less active; however, plaintiff actually weighed two pounds less

than he did at his last appointment four months earlier. “Taking OxyContin, 40 mgs

three times a day may also be making him less active and somewhat sedated although

he is not complaining of sedation.” Plaintiff said that his Paxil was causing “major

sexual side effects. We discussed ways to switch. He is getting along well with his wife.

Except for the pain from his back problem, he feels he is doing relatively okay.” Dr.

Dimalanta observed that plaintiff showed normal range of mood without crying or having

any suicidal thinking, there was no psychosis, insight was good. He was assessed with

panic disorder with agoraphobia, although it is unclear why the previous diagnosis of

“without agoraphobia” suddenly changed to “with agoraphobia.” He was also diagnosed

with major depression and “situational stressors” of medical problems and sexual side

effects were noted to be present. Dr. Dimalanta suggested switching from Paxil to

Zoloft and gave plaintiff samples of both.

Three weeks later, on July 2, 2004, plaintiff returned to see Dr. Dimalanta (Tr. at

505). Although at his last appointment three weeks earlier he said he and his wife were

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getting along fine, on this appointment he indicated that he and his wife were struggling,

having a lot of conflict. “Chris is very happy with taking Zoloft, 50 mgs in the morning.

He is not having sexual side effects, unlike when he was taking Paxil.” Dr. Dimalanta

suggested counseling but plaintiff said his wife would not agree to that. “One problem

is finances and he is looking for a job. He thinks this will help them a lot.” Plaintiff

weighed 209 pounds on this visit -- 14 pounds heavier than three weeks earlier.”He is

feeling better and does not have depressive complaints or suicidal thinking. There is no

psychosis or paranoia.” Plaintiff was assessed with, “Panic Disorder, Major Depression,

recurrent, responding well to the above medication.” Plaintiff was continued on his

same medications at the same dosages.

On September 24, 2004, plaintiff returned to see Dr. Dimalanta (Tr. at 503).

Plaintiff said he felt better when he was taking Paxil and Zoloft. “He mostly stays at

home, taking care of their kids while his wife works. He lost his job after having back

surgery.” This is a curious statement since plaintiff’s back surgery occurred more than

three years earlier (July 10, 2001) and Dr. Dimalanta had noted in three different

medical records which post-date plaintiff’s back surgery that plaintiff was working.

Plaintiff’s weight was 192 on this visit. He was dressed appropriately and showed good

hygiene. He was cooperative and polite, responded appropriately to questions, was

completely oriented, had no crying spells or suicidal thinking, no psychosis or paranoia,

and he had good insight. His affect was “somewhat constricted,” otherwise his exam

was perfectly normal. Dr. Dimalanta gave plaintiff samples of Zoloft and told him to

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increase his dosage from 50 mg to 75 mg in the morning for one week to see if he

could tolerate it.

Four months later, on January 27, 2005, plaintiff returned to see Dr. Dimalanta

(Tr. at 502). “Chris was last seen on 9/24/04, He missed his last appointment. He

tried 100 mgs of Zoloft but he could not tolerate it. He is not sure how he feels about it.

He is back to taking 50 mgs in the morning and it is helping his anxiety and depression.”

Plaintiff stated that he was still taking the same amount of pain medication. “It helps his

back problem. . . . He is planning to attend OTC and study computer programming.

Finances is a problem but other day-to-day stressors are tolerated.” Plaintiff weighed

196 pounds. He was casually dressed and showed good hygiene. He brought his five-

year-old son with him. “He is calm and predominantly happy. There is no crying, and

he is not having suicidal thoughts. There is no psychosis. Insight is good.” He was told

to return in a month.

About three months later, on April 12, 2005, plaintiff returned to see Dr.

Dimalanta (Tr. at 501). “He does not like the effect of Zoloft. He cannot raise it more

than 50 mgs and he seems to be having more edginess from it. We reviewed other

medications and he wants to go back to taking Paxil. The sexual side effect is probably

not from the medication but more relationship issues. . . . Relationships with family,

situations and children are stressful.” Plaintiff was described as “laid back.” He was

appropriately dressed and showed good hygiene. He was calm, polite and cooperative,

readily sharing information. “He sometimes shows mild anxiety.” He weighed 195

pounds. “There is no psychosis, paranoia, crying spells or suicidal thinking. Insight is

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good.” Plaintiff was told to taper off Zoloft and restart Paxil and to come back in a

month.

Three and a half months later, on July 28, 2005, plaintiff returned to see Dr.

Dimalanta (Tr. at 499). He had been on Paxil, but “he did better on the CR strength.”

Dr. Dimalanta explained the difference between Paxil and continued release Paxil. “He

does odd jobs, like fixing lawn mowers. He took a test at OTC and scored very high.

He is considering going back to school. . . . He is getting along well with his wife and

they have been married for seven years now. The last time he used alcohol was

fourteen years ago.” Plaintiff weighed 193 pounds. He was dressed appropriately and

showed good personal hygiene. “He is alert and readily shares information. There are

no crying spells, suicidal thinking, paranoia, or delusions. Insight is good.” No

abnormal observations were noted. He was assessed with panic disorder with

agoraphobia and major depression, in remission. Dr. Dimalanta switched plaintiff from

Paxil to Paxil CR and told him to come back in three months.

On October 20, 2005, plaintiff returned to see Dr. Dimalanta (Tr. at 498). “He is

doing well with his medication and has no complaints from taking Paxil, 25 mg CR, and

Lorazepam, 2 mg. three times a day as needed (generally takes two to two and a half a

day). I reviewed his psychosocial systems, and stressors are tolerated. He is looking

for a job and has an interview scheduled today. He plans to work in a transmission

remanufacturing plant if he gets accepted. He is aware of his back problem, and we

discussed to make sure he doesn’t need to be lifting heavy objects. . . . His family life is

mildly a stressor because his kid is needing possible psychiatric care. We discussed

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how to refer his kid to the Children’s Program, which was done.” Plaintiff weighed 188

pounds. He was casually dressed and showed very good hygiene. He was relaxed and

oriented times three. “No problem with memory, paranoia, delusions, or hallucinations.

No crying spells or suicidal thinking. Insight is good.” No abnormal observations were

noted. He was assessed with panic disorder with agoraphobia and major depression in

remission. “He has responded well to the above medicine. Stress is tolerated.” He

continued plaintiff on his same medications and told him to come back in three months.

On February 6, 2006, plaintiff returned to see Dr. Dimalanta (Tr. at 497). He was

doing well with his medication, and he said he was still on the same medication for his

back pain. “He is getting along with his wife. Review of his psychosocial system

showed he is tolerating daily stress. He is not working. The most difficult problem is

learning his doctor was dying of lung cancer. This is devastating to him, and he has

been feeling sad about the situation.” Plaintiff weighed 190 pounds. He was

appropriately dressed and showed good hygiene. “He got teary eyes discussing above

stressor but otherwise was predominantly happy, showing normal range of mood. He

has no suicidal or homicidal thinking or plan. Thought processes are clear, without

paranoia, delusions, or hallucinations. Insight is good.” He was assessed with panic

disorder with agoraphobia and major depression “responding very well with above

medicine. . . . We agreed he has done well with the above medication.”

About three weeks later, on March 2, 2006, plaintiff saw Dr. Glynn for the first

time and reported back pain (Tr. at 528). Plaintiff had been seeing Dr. Clarke. Plaintiff

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reported trouble sitting. Plaintiff was assessed with hypertension and lumbar disc

disease. He was prescribed medication. No exam was noted.

On March 30, 2006, plaintiff returned to see Dr. Glynn (Tr. at 528). Plaintiff said

that the OxyContin was no longer helping his pain but he would get sick when he tried

to stop taking them. Dr. Glynn prescribed Norco, another narcotic pain medicine. No

exam was noted.

On May 1, 2006, plaintiff returned to see Dr. Glynn (Tr. at 527). “Extra Norco

has helped a lot.” Dr. Glynn refilled plaintiff’s narcotic pain medicine. The record is four

lines long and does not include any observations or any exam.

On May 15, 2006, plaintiff filed applications for disability.

On May 30, 2006, plaintiff returned to see Dr. Glynn (Tr. at 527). He complained

about a spot on his throat that he wanted checked out. His throat hurt when he tried to

sing or use a loud voice, not all the time and it did not hurt to swallow. He was referred

to an ENT specialist. With regard to his back pain, “says Lidoderm4 patch just didn’t

help. Will continue with oral meds.”

On June 20, 2006, plaintiff saw Dr. Dimalanta after not having seen him for the

past 4 1/2 months (Tr. at 553). “He is doing relatively well on his medication,

Lorazepam, 2 mg, three times a day, and Paxil, 25 mg CR. . . . He has developed

avoidance as a personality pattern. He is not able to work and is applying for disability.

4Lidoderm patches contain Lidocaine which helps to reduce sharp/burning/aching
pain as well as discomfort caused by skin areas that are overly sensitive to touch.
Lidocaine belongs to a class of drugs known as local anesthetics. It works by causing a
temporary loss of feeling in the area where you apply the patch.

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He is unable to drive without his wife, and even then, he gets very nervous. . . . He has

four children, two of his own, and two from his wife’s previous relationship. They are

getting along. He changed doctors and is consulting with Dr. Glynn. His OxyContin

and Hydrocodone are still the same medication.” Plaintiff weighed 194 pounds. He

was dressed appropriately and showed good personal hygiene. He did not have any

agitation, paranoia, delusions or hallucinations; he had no suicidal or homicidal thinking

or plan. His insight was good. There were no abnormal observations or findings noted.

Plaintiff was assessed with panic disorder with agoraphobia and major depression

“responding well to Paxil.” “He is disabled and will be unable to work in any full-time

job.” This appointment occurred approximately one month after plaintiff filed his

application for disability benefits. Dr. Dimalanta kept plaintiff on his same medications

at the same dosages and told plaintiff to return in three months.

On June 27, 2006, plaintiff saw Dr. Glynn for a recheck on back pain (Tr. at 548).

Plaintiff said he wanted to quit smoking. The only note beyond plaintiff’s statement that

he wanted to quit smoking was “cancelled appt - didn’t have cash for copay.” Dr. Glynn

refilled plaintiff’s Norco and Oxycontin, both narcotics.

On July 13, 2006, C. K. Bowles completed a Psychiatric Review Technique at

the request of SSA (Tr. at 529-541). Dr. Bowles found that plaintiff’s mental impairment

was not severe. That same day plaintiff’s disability applications were denied initially.

On July 25, 2006, plaintiff went to see Dr. Glynn “with lower back pain” and to

have a Medical Source Statement completed (Tr. at 547). No exam was performed, no

observations were noted. Dr Glynn refilled plaintiff’s narcotic pain medicine and

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completed the Medical Source Statement Physical (Tr. at 543-544, 547). He found that

plaintiff could lift and carry 15 pounds occasionally and 5 pounds frequently, stand or

walk for 2 hours per day and for 15 minutes at a time, sit for 4 hours per day and for 45

minutes at a time, and that he was limited in his ability to push or pull. He found that

plaintiff could only occasionally reach, even though in a Function Report completed five

weeks earlier plaintiff indicated he has no difficulty reaching. He found that plaintiff

needs to lie down during the day. When asked how often, he wrote, “4 hrs of 8 hr day”

and when asked for the duration he wrote, “1 hr” -- I can only assume he meant plaintiff

would need to lie down for an hour at a time four times per day. He indicated that

plaintiff takes sedating medication and he would therefore suffer a decrease in

concentration, persistence, or pace. He also indicated that his findings were based on

“medical history, clinical findings (such as the result of physical or mental status

examinations), laboratory findings (such as blood pressure, x-rays), diagnosis

(statement of disease or injury base[d] on its signs and symptoms), and treatment

prescribed with response and prognosis.” However, none of these things appear in the

few medical records Dr. Glynn had completed to date, with the exception of Dr. Glynn’s

prescribing pain medication.

On August 22, 2006, plaintiff saw Dr. Glynn for a follow up on his back pain and

complained of “no sleep” (Tr. at 547). The medical record states in its entirety: “No

new issues, back stable - not working, awaiting disability hearing.” His narcotic pain

prescriptions were refilled.

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On September 19, 2006, plaintiff saw Dr. Glynn (Tr. at 546, 569). The medical

record reads in its entirety: “When I walk in the room he is standing. ‘I couldn’t sit any

longer.’ Walks stiffly. Gets in and out of chair using arms for assist. Have refilled

chronic meds.”

On October 17, 2006, plaintiff saw Dr. Glynn (Tr. at 569). His four-line medical

record is illegible except that he was discussing plaintiff’s 2003 surgery. He refilled

plaintiff’s narcotic pain medications.

On October 26, 2006, plaintiff saw Dr. Dimalanta for a follow up (Tr. at 552). “I

reviewed his psychosocial system and he is basically homebound, taking care of kids.

They have four children and the youngest is three. Three of them are in school during

the day. It has been over two years since he tried to go back to work and he was not

able to do so. He can get jobs and hold them for a few weeks. He has panic attacks

and severe back problems interfere with his ability to work. Over the years he

developed avoidance. He no longer drives a car, since he gets panicky in spite of

taking medication. He takes Lorazepam, 2 mg three times a day and is not misusing it.

His other medicine is Paxil, 25 mgs CR. . . . He was made aware of being physically

dependent on Lorazepam. He gets along with his wife who is very supportive and

helpful. She works and they have role reversal, which is okay with him. . . . He is still

applying for disability.” Plaintiff weighed 201.7 pounds. He was alert and fully oriented,

he had normal range of mood, he had no psychosis, paranoia, delusions, suicidal or

homicidal thinking. His memory and insight were good. The only abnormal observation

was that plaintiff was “mildly anxious.” He was assessed with panic disorder with

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agoraphobia and major depression. “He is responding well with medicine. Axis II with

avoidance and Cluster C are interfering with his functioning. He quit driving a car

because of anxiety. His back problems makes [sic] him have problems in daily

functioning and he will not be able to work in any full-time job. His concentration is also

affected.” Dr. Dimalanta kept plaintiff on the same medications at the same dosages.

The following day, Dr. Dimalanta completed the Medical Source Statement

Mental that is the subject of plaintiff’s argument in this appeal (Tr. at 555-556). The

specific findings are set out on pages 5 through 8 of this order. Despite observing the

day before that plaintiff’s memory was good, Dr. Dimalanta rated plaintiff “markedly”

limited in his ability to remember detailed instructions and “moderately” limited in his

ability to remember locations and work-like procedures.

On November 14, 2006, plaintiff saw Dr. Glynn who noted that plaintiff walked

with an antalgic gait and “slow”, “guards back.” He noted that the weather affected his

hip pain into his leg “today.” No examination was performed. Plaintiff’s narcotic

medications were refilled.

On December 12, 2006, plaintiff returned to see Dr. Glynn (Tr. at 570). The

three-line record says that weather affects his back, “can’t stand very long.” No

examination was performed. Dr. Glynn refilled plaintiff’s narcotic pain medications.

On January 8, 2007, plaintiff saw Dr. Glynn (Tr. at 571). Again the record is only

a few lines long, is somewhat illegible, discusses pharyngitis and myalgias. No

examination was performed. The same narcotic pain medications were refilled.

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On February 2, 2007, plaintiff saw Dr. Dimalanta (Tr. at 591). “He will have

problems maintaining work because of panic attacks, depression and Cluster C

personality. He is also getting pressure from his wife who expects a lot more active

participation and cannot understand his avoidance. We will meet next time to include

his wife so I can explain this problem.” Plaintiff weighed 198 pounds. He was casually

dressed and showed good hygiene. He was “very laid back” with no crying spells or

suicidal thinking. There was no psychosis, paranoia or delusions. Insight was “better”

although at his last appointment Dr. Dimalanta noted that his insight was “good.” The

only abnormal observation was that plaintiff was “mildly anxious.” Despite having

conducted no testing, Dr. Dimalanta added a new diagnosis: Personality Disorder, not

otherwise specified.” He noted that “Cluster C is interfering with maximum benefit of

treatment. He is mentally disabled.” Because plaintiff complained that Paxil was not

working as well, Dr. Dimalanta increased his Paxil by 12.5 mg and told him to return in a

month.

On February 5, 2007, plaintiff saw Dr. Glynn (Tr. at 571). “Weather has

significantly affected pain and mobility.” No examination was performed. Plaintiff’s

same narcotic pain medications were refilled.

Dr. Glynn’s medical records include a note dated February 26, 2007, which says

only, “Referral to Martin Center on March 7 @ 11:00 mailed letter” (Tr. at 571). Martin

Center for Diagnostic Imaging is in Cox Health in Springfield.

On March 6, 2007, plaintiff saw Dr. Glynn (Tr. at 568). The entire record states

as follows: “Reminded of MRI at Martin Center tomorrow. Refilled chronic meds.”

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On April 3, 2007, plaintiff saw Dr. Glynn (Tr. at 568). The record says, “Today

just needs refills meds.” He refilled plaintiff’s narcotic pain medications.

On May 1, 2007, plaintiff saw Dr. Glynn to go over his MRI (Tr. at 572). “MRI

OK. Disc OK.” He refilled plaintiff’s narcotic pain medications.

On May 29, 2007, plaintiff saw Dr. Glynn (Tr. at 572). Dr. Glynn wrote, “moving

stiffly” and then refilled plaintiff’s narcotic pain medications.

On June 26, 2007, plaintiff saw Dr. Glynn (Tr. at 567). The two-line record says

that plaintiff was doing pretty well. His narcotic pain medications were refilled.

On July 18, 2007, plaintiff saw Dr. Glynn (Tr. at 567). The two-line record says

that plaintiff was “doing pretty well - refilled meds.”

On July 26, 2007, plaintiff saw Dr. Dimalanta (Tr. at 590). “He was last seen on

2/2/07. He canceled two appointments and missed one. We discussed compliance and

keeping his appointments. We defined the rules to continue treatment.” Dr. Dimalanta
<