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Bougalis v. Colvin

United States District Court, D. Minnesota

June 4, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


JANIE S. MAYERON, United States Magistrate Judge.

The above matter came before the undersigned United States Magistrate Judge upon the parties’ cross-motions for summary judgment. [Docket Nos. 12 and 16]. This Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). The matter has been referred to this Court for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c).


Plaintiff Joanne Bougalis (“Bougalis”) initially applied for disability insurance benefits (“DIB”) on April 15, 2005. (Tr. 137). The Social Security Administration (“SSA”) denied Bougalis’s application on November 27, 2007.[1] (Tr. 213-16).

On July 19, 2010, Bougalis reapplied for DIB. (Tr. 137, 182). She alleged a disability onset date of October 1, 2004 as a result of post-traumatic stress disorder (“PTSD”), chronic neck pain, bilateral knee pain, and PTSD headaches. (Tr. 182). Bougalis later amended her alleged onset date to November 28, 2007. (Tr. 120, 138). Bougalis was last insured for disability benefits on December 31, 2009. (Tr. 137, 182, 290). The SSA denied Bougalis’s application on January 13, 2011, and on reconsideration on March 10, 2011. (Tr. 181-96, 197-212).

Bougalis requested a hearing before an Administrative Law Judge (“ALJ”). (Tr. 230-31). A hearing was held on November 20, 2011, before ALJ Joan G. Knight. (Tr. 135-80). Bougalis was represented by Andrew Muirhead, Esq. (Id.). John Komar, a vocational expert (“VE”), testified at the hearing, as did Bougalis. (Id.).

On January 4, 2012, the ALJ issued her decision denying Bougalis’s application for benefits. (Tr. 120-30). That same day, Bougalis filed a request for review of the ALJ’s decision by the SSA Appeals Council. (Tr. 98). On July 27, 2013, the Appeals Counsel denied Bougalis’s request for review, (Tr. 98-100), making the ALJ’s decision final. See 20 C.F.R. §§ 404.981, 416.1481 42 U.S.C. § 405(g); Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992).

Bougalis sought review of the ALJ’s decision by filing a Complaint in this Court, pursuant to 42 U.S.C. § 405(g). [Docket No. 1]. The parties have now filed cross-motions for summary judgment. [Docket Nos. 12, 16].


If a claimant’s initial application for benefits is denied, he or she may request reconsideration of the decision. 20 C.F.R. §§ 404.907-09, 416.1407-09. A claimant who is dissatisfied with the reconsidered decision may obtain administrative review by an ALJ. 42 U.S.C. §§ 405(b)(1), 1383(c)(1); 20 C.F.R. §§ 404.929, 416.1429. To determine the existence and extent of a claimant’s disability, the ALJ must follow a five- step sequential analysis, requiring the ALJ to make a series of factual findings regarding the claimant’s work history, impairment, residual functional capacity, past work, age, education and work experience. See 20 C.F.R. §§ 404.1520, 416.920; see also Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir. 1992). The Eighth Circuit has described this five-step process as follows:

The Commissioner of Social Security must evaluate: (1) whether the claimant is presently engaged in a substantial gainful activity; (2) whether the claimant has a severe impairment that significantly limits the claimant’s physical or mental ability to perform basic work activities; (3) whether the claimant has an impairment that meets or equals a presumptively disabling impairment listed in the regulations; (4) whether the claimant has the residual functional capacity to perform his or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform.

Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003).

If the claimant is dissatisfied with the ALJ’s decision, he or she may request review by the Appeals Council, though review is not automatic. 20 C.F.R. §§ 404.967-404.982, 416.1467-1482. The decision of the Appeals Council (or of the ALJ, if the request for review is denied) is final and binding upon the claimant unless the matter is appealed to Federal District Court within sixty days after notice of the Appeals Council’s action. 42 U.S.C. §§ 405(g), 1383(c)(3); 20 C.F.R. §§ 404.981, 416.1481.

Judicial review of the administrative decision generally proceeds by considering the decision of the ALJ at each of the five steps. The Court is required to review the administrative record as a whole and to consider:

1. The credibility findings made by the ALJ.
2. The plaintiff’s vocational factors.
3. The medical evidence from treating and consulting physicians.
4. The plaintiff’s subjective complaints relating to exertional and non-exertional activities and impairments.
5. Any corroboration by third parties of plaintiff’s impairments.
6. The testimony of vocational experts, when required, which is based upon a proper hypothetical question which sets forth plaintiff’s impairment.

Cruse v. Bowen, 867 F.2d 1183, 1185 (8th Cir. 1989) (citing Brand v. Secretary of HEW, 623 F.2d 523, 527 (8th Cir. 1980)).

“When considering whether the ALJ properly denied social security benefits, [the court] determine[s] whether the decision is based on legal error, and whether the findings of fact are supported by substantial evidence in the record as a whole.” Collins v. Astrue, 648 F.3d 869, 871 (8th Cir. 2011) (quoting Lowe v. Apfel, 226 F.3d 969, 971 (8th Cir. 2000)). “Legal error may be an error of procedure, Brueggemann v. Barnhart, 348 F.3d 689, 692 (8th Cir.2003), the use of erroneous legal standards, or an incorrect application of the law, Nettles v. Schweiker, 714 F.2d 833, 836 (8th Cir.1983).” Id.

Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994). “Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner’s conclusion.” Buckner v. Apfel, 213 F.3d 1006, 1012 (8th Cir. 2000) (quoting Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000)); see also Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009) (citing Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006)) (same); Cox v. Apfel, 160 F.3d 1203, 1206-07 (8th Cir. 1998) (same).

In reviewing the record for substantial evidence, the Court may not substitute its own judgment or findings of fact for that of the ALJ. Hilkemeyer v. Barnhart, 380 F.3d 441, 445 (8th Cir. 2004). The possibility that the Court could draw two inconsistent conclusions from the same record does not prevent a particular finding from being supported by substantial evidence. Culbertson, 30 F.3d at 939. The Court should not reverse the Commissioner’s finding merely because evidence may exist to support the opposite conclusion. Buckner, 213 F.3d at 1011; Mitchell v. Shalala, 25 F.3d 712, 714 (8th Cir. 1994); see also Woolf, 3 F.3d at 1213 (holding that the ALJ’s determination must be affirmed, even if substantial evidence would support the opposite finding). .

The claimant bears the burden of proving his or her entitlement to disability insurance benefits under the Act. See 20 C.F.R. §§ 404.1512(a), 416.912(a); Thomas v. Sullivan, 928 F.2d 255, 260 (8th Cir. 1991). Once the claimant has demonstrated he or she cannot perform prior work due to a disability, the burden of proof then shifts to the Commissioner to show that the claimant can engage in some other substantial, gainful activity. See Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005).


The ALJ made the following determinations under the five-step process.

At step one, the ALJ concluded that Bougalis had not engaged in substantial gainful activity from November 28, 2007, the alleged disability onset date, through December 31, 2009, the date Bougalis was last insured under the Social Security Act.[2](Tr. 122).

At step two, the ALJ found that Bougalis had the following severe impairments: neck pain, with reported cervical kyphosis; knee pain, with a need for orthotics; history of migraine headaches; depressive disorder with anxiety; and PTSD. (Tr. 122-23).

At step three, the ALJ determined that Bougalis’s symptoms did not meet or medically equal one of the presumptively disabling impairments listed under 20 C.F.R. Part 404, Subpt. P, App. 1. As to Bougalis’s physical symptoms, the ALJ considered the criteria for major dysfunction of a joint (Listing 1.02), disorder of the spine (Listing 1.04), and neurological impairments (Listing 11.00), and found that none of her physical impairments were consistent with the level of severity of a condition that meets the criteria under the Listings.” (Tr. 123).

With respect to mental impairments, the ALJ determined that Bougalis’s symptoms did not meet or medically equal the criteria for affective disorders (Listing 12.04) and anxiety-related disorders (Listing 12.06). (Tr. 123). In particular, the ALJ found that the “paragraph B” criteria had not been satisfied as to Listings 12.04 and 12.06 because Bougalis’s mental impairments did not result in at least two of the following: marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of decompensation, each of extended duration. (Tr. 123-24); see 20 C.F.R. Pt. 404, Subpt. P, App. 1, §§ 12.04, 12.06.

With respect to activities of daily living, the ALJ found that Bougalis had moderate restriction. (Tr. 123). In making that determination, the ALJ noted:

• Bougalis reported caring for her children and mother afflicted with Alzheimer’s disease and reported independence with her daily living activities;
• Bougalis’s mental status examinations reflected appropriate presentation and self-care;
• Bougalis was capable of managing her household and family and frequently traveled between Minnesota and Arizona;
• Medical evidence of record indicated that Bougalis experienced anxiety in leaving the house for certain appointments.

(Tr. 123).

As to social functioning, the ALJ observed that, despite Bougalis’s impairments, she continued to drive, spend time with her family, and care for her children. (Tr. 123-24). In addition, treatment notes showed that Bougalis actively participated in therapy sessions and effectively engaged in writing and narrative exercises. (Tr. 124). For those reasons, the ALJ concluded that Bougalis had moderate difficulties in the area of social functioning. (Id.).

With regard to concentration, persistence or pace, the ALJ indicated:

• Medical evidence indicated that Bougalis maintained the same level of moderate difficulty with concentration, persistence, or pace;
• Although Bougalis alleged trouble with memory, she reported writing, crafting, and emailing;
• Mental status examinations revealed no memory deficits;
• Bougalis’s medication regimen was consistently maintained.

(Tr. 124). Based on these findings, the ALJ determined that Bougalis had moderate difficulty in the area of concentration, persistence or pace. (Id.).

As to episodes of decompensation, the ALJ indicated that the medical evidence of record showed no extended episodes of decompensation. (Id.).

Finally, the ALJ concluded that the “paragraph C” criteria had not been met because “the evidence fail[ed] to establish the presence of the ‘paragraph C’ criteria.”[3](Id.).

At step four of the analysis, the ALJ determined that Bougalis had the following residual functional capacity (“RFC”):

[T]he claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except for the following limitations: the claimant is capable of unskilled work. She is capable of brief, superficial contact with co-workers and supervisors; incidental public contact totaling no more than 1/6 of the workday; with no direct customer service; and no rapid or frequent changes in work routine.


After considering all of Bougalis’s symptoms and the extent to which they could be reasonably accepted as consistent with the objective medical evidence, the ALJ concluded that Bougalis’s medically determinable impairments could reasonably be expected to cause her alleged symptoms. (Tr. 125). However, the ALJ did not credit Bougalis’s testimony concerning the intensity, persistence, and limiting effects of her impairments to the extent they were inconsistent with the ALJ’s RFC assessment. (Id.). The ALJ explained that Bougalis’s limitations were accounted for in the RFC assessment and were not severe enough to qualify for disability benefits. (Id.).

In reaching this determination, the ALJ applied a presumption of continuing nondisability, as set forth in Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988). To overcome a presumption of continuing nondisability arising from a prior ALJ’s denial of benefits, the Chavez presumption requires a disability claimant residing within the Ninth Circuit to demonstrate changed circumstances indicating a new or greater disability. Id. at 693; see also Social Security Acquiescence Ruling 97-4(9) (“AR 97-4(9)”), available at (applying Chavez to disability claimants residing within the Ninth Circuit at the time of disability determination). The ALJ noted that Bougalis had alleged new diagnoses of hand pain, noncardiac chest pain related to anxiety, and worsened mental symptoms of depression and anxiety. (Tr. 125). However, the ALJ found that the evidence in support of these new symptoms was not material to the relevant period between Bougalis’s alleged disability onset date and the date last insured. (Id.). Therefore, the ALJ concluded that the Chavez presumption had not been rebutted, and Bougalis was not disabled. (Tr. 120).

In support of this conclusion, with regard to hand pain, the ALJ determined that Bougalis’s symptoms had been extensively documented and discussed in her prior application for benefits, and no other evidence prior to the date last insured corroborated Bougalis’s allegations. (Tr. 125).

As to claims of worsened mental impairments, the ALJ found that Bougalis’s increased symptoms occurred when her father died in April, 2010, after the date last insured. (Id., citing Tr. 1220, 1165). Treatment notes from March, 2010, indicated that Bougalis was “‘not describing any major depression.’” (Tr. 125-26, quoting Tr. 622). Medical evidence in the record demonstrated that the Global Assessment of Functioning score (“GAF”)[4] for Bougalis remained at 55 during this time. (Tr. 125, 126). The only low GAF was from October, 2011, almost two years after Bougalis’s date last insured. (Tr. 126).

The ALJ further indicated that treatment notes prior to the date of last insured indicated that Bougalis’s mental status was consistently temperate. (Id.). Mental examinations by treating therapists and psychologist repeatedly noted that Bougalis had good appearance; appropriate affect; normal alertness; moderate depressed mood; good cooperation; concrete, goal directed thought process; and pleasant and cooperative behavior. (Id.). Treatment records frequently noted Bougalis’s good judgment, insight, concentration, and memory; unremarkable speech; and good eye contact. (Id., citing Tr. 470-887, 1209-35). Bougalis’s treating practitioner, Jeannette Merrill, consistently evaluated her overall mental health as “‘stable, with no major changes.’” (Id., citing Tr. 1209-35). Bougalis told her mental health provider that she was doing well. (Id., citing Tr. 1168).[5] Treatment notes from October, 2008, indicated that Bougalis’s depression was well controlled. (Id., citing Tr. 719). Medical records from September, 2011, reported that Bougalis was feeling stable. (Id., citing Tr. 906). In August, 2011, Bougalis stated that her medications were helping. (Id., citing Tr. 916). Bougalis’s treatment providers repeatedly assigned GAF scores of 80/90 (id., citing Tr. 906-970) and 55 (id., citing Tr. 906-970, 1209-35). Treatment notes also showed that Bougalis’s medication regimen had been effective, without misuse or tolerance. (Id., citing Tr. 452, 1226).

Bougalis’s physical examinations produced normal or unremarkable results, including good muscle strength, bulk and tone; normal gait; normal range of motion, flexion and extension; unremarkable sensory results; and normal deep tendon reflexes of her upper and lower extremities. (Tr. 126, citing Tr. 470-887, 906-1235, 1244). The ALJ also noted that MRI results of the knee from 2011 showed only mild abnormality, and, in any event, the results were too remote from the date last insured to attribute to the relevant period prior to the date last insured. (Tr. 125).

Echocardiogram results from 2009 were normal. (Tr. 126, citing Tr. 633, 643). Cardiology stress tests from 2010 revealed negative results. (Id., citing Tr. 621). A chest MRI from 2011 showed unremarkable and negative results. (Id., citing Tr. 989). MRI scans of the left and right foot from 2009 showed mild or stable-mild degenerative change. (Id., citing Tr. 488, 541). Cervical spine MRI results from 2007 were normal, (id., citing Tr. 497), and a thoracic spine MRI in 2008 showed stable mild degenerative change. (Id., citing Tr. 541). MRI scans of Bougalis’s hand from July, 2008, were normal, and scans from November, 2009, showed essentially unchanged normal results. (Id., citing Tr. 486-87). Bilateral wrist and hand MRI results from March, 2011, were normal. (Id., citing 990-92). X-rays of the knee in January, 2011, revealed “‘negative routine three views of each knee.’” (Id., citing Tr. 1002-04).

Bougalis reported that orthotics had effectively managed her pain and that she was pain free when wearing them. (Tr. 127, citing Tr. 1029). Medical records showed that Bougalis’s physical therapy was effective and that her strength and endurance were slowly improving. (Id., citing Tr. 927). Treatment notes from October, 2007, reported that Bougalis saw improvement from chiropractic therapy and was “‘expected to get 100% recovery with additional treatment.’” (Id., citing Tr. 579). Treatment notes from November, 2009, indicated that Bougalis “‘is able to manage her knee and neck pain with Tylenol and ibuprofen as needed.’” (Id., citing Tr. 652). In October, 2009, Bougalis claimed that “‘sometimes she does not need [the medication].’” (Id., citing Tr. 664 (alteration in original)). In December, 2009, treatment notes provided that Bougalis “‘den[ied] any side effects to her medications.’” (Id., citing Tr. 642 (alteration in original)). In February, 2010, treatment notes stated that Bougalis was doing well. (Id., citing Tr. 621). In March, 2010, Bougalis reported that “‘her neck pain and knee pain are controlled on the current regimen.’” (Id., citing Tr. 612). Bougalis’s chiropractor observed marked improvement. (Id., citing Tr. 589).

In April, 2008, treatment notes indicated that Bougalis had reported mild aching in her fingers and “‘notices it mostly when she is typing, ’” (id., citing Tr. 738), which, according to the ALJ, “indicat[ed] a greater physicality than alleged by [Bougalis].” (Id.). Bougalis’s treating physician stated that she “‘may want to limit her computer work until this is better.’” (Id.).[6] Physical examinations revealed no swelling or erythema[7] and no sign of inflammation. (Id., citing Tr. 738, 740). Treatment notes from November, 2009, reported good grip strength and minimal tenderness with no synovial[8] thickening or active synovitis. (Id., citing Tr. 654).

In March, 2010, after the date last insured, treatment notes indicated that Bougalis felt her heart was fine and that the pain in her chest corresponded to times of stress. (Id., citing Tr. 612). Bougalis’s treating physician, Dr. Amida Gallito, suggested that she continue to observe the symptoms. (Id., citing Tr. 612).

The ALJ further noted that Bougalis had consistently traveled back and forth to Minnesota to care for her mother, which indicated greater physical capability than alleged by Bougalis. (Id.).

The ALJ afforded little weight to the opinion of Jeannette Merrill, MA, RN. On June 20, 2007, Merrill gave Bougalis a “guarded” prognosis, assigned her a GAF score of 52, and concluded that Bougalis could not meet competitive standards of most job-related mental functions and was therefore extremely limited in her functional areas. (Id., citing Tr. 464-69). The ALJ did not credit Merrill’s testimony because it was not supported by medical evidence of record. (Id.). In particular, the ALJ noted:

• Bougalis’s mental status examinations had largely been within normal limits and her symptoms were managed by medications throughout the relevant time period;
• Merrill’s opinion that Bougalis could not sustain full-time employment was inconsistent with Bougalis’s assigned GAF score of 52, which indicated moderate symptoms;
• Merrill treated Bougalis every six months for 30 minutes, which was “infrequent, cursory treatment and serves to undermine the credibility” of Merrill’s opinion;
• Merrill’s opinion was rendered prior to Bougalis’s alleged disability onset date and, therefore, did not bear on the relevant time period; and
• A nurse practitioner is not an acceptable medical source for purposes of Social Security disability evaluation.

(Tr. 127-28).

The ALJ also gave little weight to the testimony of Cindy Macaulay, M.Ed., who had treated Bougalis between 2007 and 2009. (Tr. 128). With respect to Bougalis’s mental condition, on November 18, 2011, Macaulay stated:

[M]y records indicate six visits during that time period – two at the Vet Center and four phone visits. I recall clearly during that time that you were very home-bound and had an extremely hard time being away from the comfort and security of your home and amongst other people, which is why we only got together when you had appointments forced on you (to renew your prescriptions) by the Twin Ports Outpatient Clinic. This is in comparison to the years before when we met and/or spoke by phone quite frequently. I would definitely say your PTSD and social anxiety got much worse during that time, making work impossible . . . .

(Id., citing Tr. 337-38). The ALJ did not credit Macaulay’s opinion for the following reasons:

• Macaulay’s opinion was not supported by the totality of the medical evidence of record;
• Macaulay treated Bougalis only six times in three years, which indicated less than severe symptoms;
• Treatment sessions were conducted via telephone, and, therefore, Bougalis’s alleged anxiety in leaving her home did not account for the infrequent treatment sessions;
• Bougalis received sustained GAF scores of 55, indicating “moderate” symptoms;
• Bougalis’s mental status examinations were consistently within normal limits;
• Treatment records indicated that Bougalis’s depression was “well controlled” and “stable” during the relevant time period;
• Bougalis’s worsening symptoms were documented after the date last insured;
• Macaulay’s opinion relied heavily on Bougalis’s subjective reports of symptoms and limitations, which were not supported by the totality of the evidence;
• Macaulay’s opinion did not show “the type of significant clinical and laboratory abnormalities to be expected if the individual were disabled;”
• A therapist is not an acceptable medical source for purposes of evaluating Social Security disability claims.


Finally, the ALJ gave little weight to the opinion of Bougalis’s son because it was inconsistent with the medical evidence of record, it was likely biased given his close relationship with Bougalis, and, even if fully credible, it did not persuade the ALJ that Bougalis was incapable of sustained gainful employment. (Id.).

In sum, the ALJ concluded that the RFC determination was supported by medical evidence of record, and by Bougalis’s own statements in her application for benefits and to medical providers. (Id.). The ALJ found no medical evidence that contradicted the RFC assessment or indicated additional restrictions beyond the RFC, except for the opinions of Merrill and Macaulay, which the ALJ afforded little weight. (Tr. 128-29).

At the fourth step of the analysis, the ALJ determined that Bougalis could not perform any past relevant work as a secretary or director of youth services because those positions required nonexertional demands in excess of Bougalis’s RFC. (Tr. 129).

At the fifth step, the ALJ relied on the VE’s expert testimony that a person of Bougalis’s age, education, work experience and RFC could perform the requirements of representative unskilled occupations such as housekeeping cleaner, courier, and small product assembler. (Tr. 129-30). The ALJ determined that such occupations existed in significant numbers in the national economy and that the VE’s testimony was consistent with information contained in the Dictionary of Occupational Titles. (Tr. 130).


Bougalis challenged the ALJ’s decision on the following grounds: First, the ALJ erred in applying the Chavez presumption and AR 97-4(9) because the record was not fully developed as to whether Bougalis resided in Arizona. Plaintiff’s Memorandum in Support of Motion for Summary Judgment (“Pl.’s Mem.”), pp. 26-29 [Docket No. 13]. Second, even if the Chavez presumption applied and required adopting the prior ALJ’s findings, there is no way for this Court to do so because the prior ALJ’s decision and analysis are missing from the record. Id., p. 29. Third, the record contained sufficient evidence of new impairments, including impairments to her hand and chest pain, along with worsened mental impairments, to rebut the presumption of continuing nondisability. Id., pp. 30-31. For example, non-examining treating agency reviewers found limitations not considered by the prior ALJ, and determined that she must avoid concentrated exposure to hazards (machinery, heights, etc.) and is limited to simple one to two-step instructions. Id., p. 30 (citing Tr. 191-92, 208, 209). Likewise, Merrill and Macaulay provided evidence describing limitations that exceeded those given by the prior ALJ, as did the VA’s finding of ongoing 100% disability for PTSD rendering her totally and permanently disabled. Id., (citing Tr. 23-27, 87, 350).

Fourth, the ALJ failed to evaluate the opinions of treating mental health professionals Merrill and Macaulay in the manner required by law, and failed to give good reasons for affording their opinions little weight. Id., pp. 31-37.

Fifth, the hypothetical question posed to the VE was inadequate for judicial review because the record did not contain the specific hypothetical question answered by the VE, and the hypothetical question did not include the limitations of moderate impairment of concentration, persistence or pace found by the ALJ. Id., pp. 37-39 (citing Tr. 124). Further, the hypothetical failed to include or evaluate the weight of the opinions of the State Agency consultants who placed environmental limitations on Bougalis including that she should avoid concentrated exposure to hazards; limitations on her ability to understand and carry out detailed instructions, to perform activities within a schedule, to maintain attendance and be punctual, to complete the workday without interruptions from psychologically based symptoms, and to perform at a consistent pace without an unreasonable number and length of rest periods; and that she was limited to “simple (one to two step) instructions.” (Id., pp. 38-39) (citing Tr. 191-92, 198, 208-09.

Sixth, the ALJ failed to properly consider the Veteran’s Administration’s (“VA”) 100% disability rating and the evidence upon which it was based. Id., pp. 39-40. Finally, the ALJ failed to consider the effect that Bougalis’s PTSD and fibromyalgia had on her physical symptoms and perception of pain, and whether it helped to explain the symptoms she was having before the date last insured. Id., pp. 40-41.

The Commissioner argued that the ALJ properly applied Chavez and AR 97-4(9) because the record showed that Bougalis was a resident of Arizona, and the new evidence submitted by Bougalis did not relate to the relevant period prior to December 31, 2009. Defendant’s Memorandum in Support of Motion for Summary Judgment (“Def.’s Mem.”), pp. 6-8 [Docket No. 17]. As to Bougalis’s argument that the ALJ erred in applying AR 97-4(9) because the previous ALJ decision was not in the current record, the Commissioner contended that Bougalis failed to show prejudice, as Bougalis’s attorney read the prior RFC into the record at the hearing, and the reviewing consultants discussed the prior RFC in their opinions. Id., p. 8 (citing Tr. 184, 201). In any event, the Commissioner argued, the ALJ did not apply AR 97-4(9); rather, she reviewed the entire record and formulated her own RFC. Id., pp. 8-9. The Commissioner also maintained that the ALJ properly discredited the opinions of Macaulay and Merrill because they were unsupported, contradictory, and were not acceptable medical sources. Id., pp. 10-17.

The Commissioner disagreed with Bougalis’s assertion that the ALJ’s hypothetical question to the VE should have included additional limitations, including those provided by the State Agency consultants. Id. 20-21. The Commissioner claimed that Bougalis selectively quoted from the reviewing physicians’ opinions and ignored their statements adopting the prior ALJ’s decision because there had not been a change in circumstances. Id., p. 21 (citing Tr. 186, 203, 207, 212). For example, Tasneem Khan, Ed.D., noted that “[t]here is no new and material evidence that would change the severity of the claimant’s impairments since the ALJ decision of 11/27/2007.” Id., (citing Tr. 204). In short, the ALJ’s hypothetical question to the VE contained all the limitations contained in the ALJ’s RFC assessment and was supported by the record. Id., pp. 17-21.

As to Bougalis’s argument that the ALJ did not properly consider the VA’s 100% disability determination, the Commissioner responded that disability assessments from other government agencies are not binding on the SSA, and, at any rate, the VA’s determination did not provide relevant insight into Bougalis’s condition. Id., 21-23. Lastly, with respect to Bougalis’s contention that the ALJ should have considered her PTSD and fibromyalgia, the Commissioner noted that Bougalis’s fibromyalgia was diagnosed after her date last insured, and Bougalis did not state what additional limitations the ALJ should have included in her RFC assessment as a result of these conditions. Id., pp. 23-24.

In reply, Bougalis reiterated that the record was not fully developed as to her residency, noting that the record demonstrates that she had lived in both Arizona and Minnesota. Plaintiff’s Reply to Defendant’s Memorandum in Support of Summary Judgment (“Pl.’s Reply”), pp. 1-2 [Docket No. 22]. Bougalis also contended that, even if the prior ALJ’s RFC was recited verbatim at the hearing, it does not show what evidence was considered by the first ALJ or the reasoning behind his RFC assessment, and, therefore, the Court could not conduct an effective review. Id., p. 2. In addition, Bougalis indicated that at least some of the evidence of worsening physical and mental impairments was relevant to the period prior to the date last insured. Id., pp. 2-3.

Bougalis further noted that Macaulay and Merrill, who had treated Bougalis for many years, were well qualified to evaluate her mental health and should have been afforded more credibility by the ALJ. Id., pp. 3-4. Bougalis disagreed with the ALJ’s determination that the statements of Macaulay and Merrill were inconsistent with the record as a whole, and consequently, the ALJ did not give good reasons for discounting their opinions. Id., pp. 5-7.

With respect to the hypothetical question posed to the VE, Bougalis argued that the record was not clear whether the prior ALJ’s RFC was accurately restated as part of the question, and, in addition, the question did not “capture the concrete consequences” of Bougalis’s impairments in the area of concentration, persistence or pace. Id., pp. 7-8. Finally, Bougalis again maintained that the ALJ failed to consider the VA’s 100% disability rating and the effect of her PTSD on her perception of pain. Id., pp. 8-10.


A. Medical Evidence Bearing on Physical Impariments[9]

1. Hand Pain

On May 14, 2007, Bougalis was examined by Theresa Huber, Certified Physician Assistant, at the Twin Ports VA Clinic. Bougalis told Huber:

she has been doing a lot of typing, writing a book. Since doing that she notices both her hands and forearms going numb. She describes the numbness as running down the outside of both arms into her 4th and 5th fingers. This improves after she is done working. No symptoms at night. Also comments she has some discomfort at the elbows. No swelling or erythema.

(Tr. 799). Huber’s medical assessment of Bougalis provided:

FROM[10] at both elbows, wrist and finger joints. No swelling or erythema noted. Mild tenderness to palpation of the ulnar groove at the elbow, both sides. Pressure here also started to elicit the symptoms described above. She also had a mildly phalen[11] sign but neg tinnel[.][12] Stren[g]th, sensation and pulses in both arms was [sic] norma[l.]

(Tr. 800). Huber’s treatment plan stated:

Ulnar nerve irritation/inflammation: issued elbow pads to rest arms when working. She may want to limit her computer work till this is better. She may use heat and nsaids prn[13] as well. She also may have some mild CTS[14] starting given the mildly phalen test so gave bilat wrist splints to use as well while typing. Pt is agreeable to plan. . . .


On July 17, 2008, Bougalis was examined by radiologist Dr. Thiruvenkatasamy Dhurairajat the Twin Ports VA Clinic. (Tr. 491-93). X-rays of Bougalis’s right hand revealed “[a] crescent-shaped ossific fragment . . . at the radial aspect of the third metacarpophalangeal joint, likely representing old avulsion[15] injury. No other bony abnormalities are identified. The soft tissues are grossly normal.” (Tr. 491). Dr. Dhurairaj’s report concluded that there were “[n]o findings to suggest arthritic process.” (Tr. 492). X-rays of the left hand showed that “[t]he bones of the left hand are normal in appearance and without evidence of fracture subluxation.[16] No significant degenerative changes are seen. The soft tissues are grossly normal.” (Tr. 493).

On October 3, 2008, Bougalis saw Dr. Kara Denny for an annual examination at the Twin Ports VA Clinic. (Tr. 718-22). Bougalis told Dr. Denny that her hand pain had improved after taking calcium on an empty stomach in the morning. (Tr. 719).

On November 23, 2009, Bougalis was examined by rheumatologist Dr. Ayub Semi at the Twin Ports VA Clinic. (Tr. 651-55). Bougalis presented with:

intermmittent [sic] B hand stiffness and couple of PIPs and DIPs[17] joint tenderness with not[i]ce of heberden nodes[18] of rt 5th DIP joint. Noticed hand swelling approx 1 yr ago, which resolved spontaneously, never recurred again. [P]ain and morning stiffness in PIPs and DIPs are intermittent, though if EMS happened lasts for 2-3 hrs. On the other hand, noticed pain and d[i]scomfort of hands with use, like typing. [A]lso reported rt ring finger receiv[e]d trauma approx a year ago and since then her hand sxs mainly started.
Reported finger tips become numb when exposed to cold, but never changed color. . . .

(Tr. 652).

Upon physical examination, Dr. Semi noted that Bougalis had good grip strength, minimal tenderness in the fingers, and no synovial thickening or active synovitis. (Tr. 654). Dr. Semi further indicated that Bougalis’s wrists had full range of motion and no synovitis. (Id.). X-rays of Bougalis’s right hand produced the following result:

Compared to 7/17/2008, punctate calcification is again seen at the medial margin of the distal interphalangeal joint of the fifth finger. No underlying body abnormality is identified in that distribution. A 2 mm bone fragment is again seen separated from the radial margin of the base of the proximal phalanx of the third finger, unchanged. This could represent an old ununited chip fracture versus small accessory ossicle. No other bone or joint abnormality is noted. . . . Examination is essentially unchanged 7/17/2008.

(Tr. 486, 655). X-rays of the left hand showed no bone or joint abnormality compared to July 17, 2008. (Tr. 487, 655).

2. Chest Pain

On December 18, 2009, Bougalis complained of shortness of breath on exertion and was examined by Dr. Amida Gallito at the Twin Ports VA Clinic. (Tr. 643-44). During the examination, Bougalis denied any chest pain. (Tr. 643). A chest x-ray showed normal results. (Id.). An echocardiogram showed normal ejection fraction. (Id.). Dr. Gallito explained to Bougalis that she could not assure her 100 percent that she had no coronary artery disease and that if she continued to have symptoms, there might be a need for a stress test and cardiology evaluation. (Id.). Bougalis stated that she would hold off on further testing and would try to increase her activity gradually to see if her symptoms were from deconditioning. (Id.).

On December 29, 2009, Bougalis went to the emergency room at the Twin Ports VA Clinic and complained of chest pain in the center to right side of the chest, which she described as “[t]ightness, like a fist.” (Tr. 636). According to Bougalis, deep breathing made the pain worse at times. (Id.). Bougalis stated that she had experienced pain for about a year, but it had become much worse over the past 2-4 weeks. (Id.). Bougalis indicated that her father had been hospitalized for four months and was doing poorly in the past two weeks and may die. (Tr. 637). Bougalis was examined by Dr. Seema Maddali. (Tr. 633). Dr. Maddali reported that Bougalis was physically well developed, well nourished, and was experiencing no acute distress. (Tr. 635). Dr. Maddali’s assessment stated: “chest wall pain, reproducible and chronic in nature with a recent NL echo.”[19] (Id.). Bougalis was given an electrocardiogram, which revealed a normal sinus rhythm. (Id.). Dr. Maddali prescribed Costochondritis[20]Indocin[21] and recommended that Bougalis avoid heavy lifting, pushing, or pulling. (Id.).

On March 29, 2010, Bougalis reported to Dr. Gallito that her chest pain was better, “but sometimes when she gets stressed out, she has a pain in the chest.” (Tr. 612). Dr. Gallito informed Bougalis that anxiety can cause chest pain, but pulmonary or cardiac conditions can cause pain as well. (Id.). Bougalis stated that “she feels that her heart is fine, and she can clearly correlate the pain the chest in times of stress.” (Id.). Dr. Gallito stated that she would “continue to observe the symptoms, but if [Bougalis] develops other character of the pain or develops new symptoms, or there is more concern for this, [Dr. Gallito would] consider further work-up.” (Id.). A cardiovascular examination showed “[r]egular rhythm and normal rate.” (Tr. 613).

3. Fibromyalgia

On April 5, 2011, Bougalis was examined by rheumatologist Dr. Elizabeth Chang. (Tr. 965-70, 1151-56). Bougalis complained of chronic knee pain, neck and shoulder pain, and pain the hands after writing for more than five minutes. (Tr. 965, 1151). Dr. Chang diagnosed Bougalis with “chronic polyarticular arthralgias and patellofemoral syndrome with possible fibromyalgia.” (Tr. 967, 1154). Dr. Chang recommended exercise, stress reduction, antidepressants, sleep optimization, and medications used for diabetic neuropathy such as Neurontin or Lyrica. (Tr. 968, 1155).

B. Medical Evidence Bearing on Mental Impairments

1. Cindy Macaulay

On September 12, 1994, Macaulay[22] completed a social history and assessment of Bougalis at the Vet Center in Duluth, Minnesota. (Tr. 10-11). Macaulay noted that Bougalis was “very slim, quick to smile and is always neatly dressed and well groomed.” ...

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