Werthy v. Astrue (882 F. Supp. 2d 1202, 2011)

United States District Court for the District of Oregon 2011-10-03

Citations

Full opinion text

OPINION AND ORDER

SIMON, District Judge.

On September 2, 2011, Magistrate Judge Dennis J. Hubei issued findings and recommendations (# 21) in the above-captioned case. Judge Hubei recommended that the Commissioner’s decision be reversed and the case be remanded for further proceedings consistent with his findings and recommendations. Neither party has filed objections.

Under the Federal Magistrates Act, the court may “accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate.” Federal Magistrates Act, 28 U.S.C. § 636(b)(1). If a party files objections to a magistrate’s findings and recommendations, “the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id.; Fed.R.Civ.P. 72(b)(3).

If, however, no objections are filed, the Magistrates Act does not prescribe any standard of review. In such cases, “[tjhere is no indication that Congress, in enacting [the Magistrates Act], intended to require a district judge to review a magistrate’s report[.]” Thomas v. Arn, 474 U.S. 140, 152, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.) (en banc), cert. denied, 540 U.S. 900, 124 S.Ct. 238, 157 L.Ed.2d 182 (2003) (the court must review de novo magistrate’s findings and recommendations if objection is made, “but not otherwise”).

Although in the absence of objections no review is required, the Magistrates Act “does not preclude further review by the district judge[ ] sua sponte ... under a de novo or any other standard.” Thomas, 474 U.S. at 154, 106 S.Ct. 466. Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b) recommend that “[w]hen no timely objection is filed,” the court review the magistrate’s findings and recommendations for “clear error on the face of the record.”

No party having made objections, this court follows the recommendation of the Advisory Committee and reviews Magistrate Judge Hubei’s findings and recommendations (#21) for clear error on the face of the record. No such error is apparent. Therefore the court orders that Judge Hubei’s findings and recommendations (# 21) is ADOPTED.

FINDINGS AND RECOMMENDATIONS

HUBEL, United States Magistrate Judge:

TABLE OF CONTENTS

I. PROCEDURAL BACKGROUND.........................................1206

II. FACTUAL BACKGROUND..............................................1207

A. Summary of the Medical Evidence...................................1207

1. Consultants’Reports ...........................................1207

2. Werthy’s medical records........................................1213

B. Summary of the Vocational Evidence................................1219

1. VE’s testimony.................................................1219

2. Third-party evidence ...........................................1220

C. Medical Expert’s Testimony ........................................1220

D. Werthy’s testimony ................................................1221

1. July 14, 2008, Hearing...........................................1221

2. Personal Pain Questionnaire dated 2/24/04 .......................1223

3. Activities of Daily Living questionnaire dated 2/24/04..............1223

4. Function Report dated 5/21/05 ...................................1223

E. Third-Party Testimony.............................................1224

III. DISABILITY DETERMINATION AND BURDEN OF PROOF.............1226

A. Legal Standards...................................................1226

B. The ALJ’s Decision..................................................1227

IV. STANDARD OF REVIEW...............................................1229

V. DISCUSSION..........................................................1230

A. Severity of Werthy’s Impairments...................................1230

1. Depression & Borderline Intellectual Functioniny.................1230

2. Insomnia......................................................1231

3. Diarrhea and Headaches........................................1232

4. Feet, Arm, & Hand Limitations..................................1232

B. Residual Functional Capacity Determination ........................1233

C. Inaccurate Hypothetical; Ability to Perform Semi-Skilled Work.......1235

D. Numbers of Available Jobs..........................................1235

VI. CONCLUSION................... .....................................1236

VII. SCHEDULING ORDER........... .....................................1236

The plaintiff Henrietta Werthy seeks judicial review pursuant to 42 U.S.C. § 405(g) of the Commissioner’s final decision denying her application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. Werthy argues the Administrative Law Judge (“ALJ”) erred in finding many of her impairments not to be “severe”; finding she retains the residual functional capacity to work; presenting an improper hypothetical question to the Vocational Expert; and ignoring relevant evidence regarding the numbers of available jobs. See Dkt. # 1.

I. PROCEDURAL BACKGROUND

Werthy protectively filed her application for benefits on April 22, 2005, at age 45, claiming a disability onset date of January 1, 1993. (A.R. 18, 70-72; see A.R. 692) Her application was denied initially and on reconsideration. (A.R. 45, 46, 52-60) She requested a hearing (A.R. 61), and a hearing was convened on February 26, 2008, before an ALJ. (A.R. 682-94) Werthy was represented by an attorney at the hearing, and a Vocational Expert (“VE”) also appeared at the hearing. No testimony was taken at the hearing, which consisted only of colloquy between the ALJ and Werthy’s attorney. The ALJ directed the attorney to obtain certain additional evidence that was missing from Werthy’s medical records, and the hearing was adjourned and reconvened on July 14, 2008. (A.R. 634-81) Werthy again was represented by counsel, and she testified on her own behalf. A VE and a medical expert (“ME”) also testified at the hearing. Id.

On August 14, 2008, the ALJ issued her decision, finding that although Werthy’s “neck and back pain,” in combination, are severe impairments (A.R. 20), they do not meet the Listing level of severity. The ALJ further found that although Werthy does not retain the residual functional capacity to perform her past relevant work as a home care giver, she is able to perform other semi-skilled and unskilled jobs that exist in significant numbers in the national economy. (A.R. 20-26) Werthy appealed the ALJ’s decision, and on February 4, 2010, the Appeals Council denied her request for review, making the ALJ’s decision the final decision of the Commissioner. (A.R. 6-8)

Werthy filed a timely Complaint in this court, seeking judicial review of the Commissioner’s final decision. Dkt. # 2. The matter is fully briefed, and I submit the following Findings and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).

II. FACTUAL BACKGROUND

A. Summary of the Medical Evidence

1. Consultants’Reports

Werthy saw James B. Powell, Psy.D. on August 16 and 28, 2001, apparently for a consultative mental status evaluation. (A.R. 486-95) Werthy stated that ever since her accident on August 25, 1993, she had been unable to “lift at all” and she was unable to “sit or stand for a long time.” (A.R. 486) She reported being forgetful at times, having four or more headaches a week, and having neck and lower back pain “all the time.” (Id.) She indicated her doctors had been unable to find a cause for her ongoing pain. She also stated she had been experiencing depression “real bad” for two years, describing symptoms of excessive sleeping, increased irritability, and “a bad attitude.” (Id.)

Werthy described daily activities such as helping her mother care for two young girls, playing the piano or guitar, and doing household chores. . She indicated that when she did housework, she had to sit down and rest for twenty minutes after only a short time before she could continue. She stated her mother helped her fold clothes, and also helped her keep her living area clean. She sometimes needed her mother’s assistance to put on pants, especially during cooler weather. She did her own shopping and cooking, but she had to take rest breaks during meal preparation and she often used a microwave. She stated she quit driving due to her back and neck problems. (A.R. 486-87) She also stated she had stopped working due to back and neck problems following her 1993 accident. (A.R. 487)

Dr. Powell administered the Wechsler Adult Intelligence Scale — Third Edition (WAIS-III), on which Werthy “obtained a full Scale IQ Score and Performance IQ Score of 75, which is at the 5th percentile and falls within the Borderline (Well Below Average) range when compared with other adults between the ages of 35 and 44.” (A.R. 490) Her Verbal IQ Score was 78, which also is in the Borderline range. (Id.)

Dr. Powell also administered the Minnesota Multiphasic Personality Inventory-2 (MMPI-2), the results of which he found to be “generally a valid .representation of the clinical profile of this client.” (A.R. 491) He noted the following regarding Werthy’s results on the MMPI-2:

In considering the score configurations, these individuals tend to focus to a great extent on various somatic and physical problems. Often, these physical symptoms may be more nonspecific and vague and may include backaches or gastrointestinal symptoms. Even though these scales cannot reliably be used to distinguish between a functional disorder and an actual physical disease, in any event, these individuals often have a tendency to convert psychological stress' into somatic and physical symptoms. They also may be experiencing a mild to moderate level of emotional distress, which may be characterized by tension, anxiety and dysphoria. They may experience an increased level of frustration and irritability. These individuals also may report having concentration difficulties and may show a tendency to process information in. a rather concrete manner. These individuals also may feel rather alienated from other people. They also may struggle with having a lack of drive.

(A.R. 492)

Dr. Powell’s diagnostic impressions included “Major depressive disorder, recurrent, moderate”; “Pain disorder, associated with psychological features, provisional. Continue to rule out whether or not there is the presence of a general medical condition.”; alcohol and cocaine abuse, in sustained full remission per Werthy’s report; “Borderline intellectual functioning, mainly based upon current test results. Client’s reported history would seem to indicate a relatively higher level of intellectual functioning.” (Id.) He estimated Werthy’s current GAF at 58.

Dr. Powell concluded Werthy likely had been “experiencing symptoms that [were] consistent with at least a moderate level of clinical depression. Her reported psychological symptoms appeared] to be secondary to her reported medical and physical condition.” (A.R. 493) He opined Werthy had a pain disorder, but noted that no formal medical diagnosis had been made, and he suggested “further medical evaluation should be undertaken to determine what actual physiological or medical conditions may exist.” (Id.) He indicated Werthy’s psychological symptoms included “prolonged periods of dysphoria and a depressed mood and an increased level of irritability, ... [and] an increased level of isolation from others.” (Id.) He noted Werthy had “rather limited” reading skills; “adequate” vocabulary, immediate attention span, and nonverbal logical reasoning and analytical skills; and some concentration difficulties. (Id.)

Dr. Powell opined that Werthy’s primary obstacle to employment would be her neck and back pain. From a psychological standpoint, he indicated, “It is likely that symptoms of depression may interfere in the sense that she may struggle to have an adequate level of drive in pursuing activities that would help her be more independent.” (A.R. 494) However, he further noted that Werthy’s symptoms of depression were not “at such a level of severity as to hinder [her] from at least taking more active steps in pursuing future work activity.” (Id.) He found Werthy’s prognosis for being able to return to work in the future to be “good at this time, but will largely depend upon her compliance with treatment recommendations and the resolution of the symptoms of pain that she has identified.” (Id.) He opined that the longer Werthy remained inactive, the more her dependence on others would increase. (A.R. 495)

On December 3, 2001, Sharon Eder, M.D., a specialist in Internal Medicine, reviewed the record and completed a Residual Physical Functional Capacity Assessment form. (A.R. 349-54) She opined Werthy could lift/carry up to twenty pounds occasionally and ten pounds frequently; sit and stand/walk for up to six hours each in an eight-hour workday; push/pull without limitation; stoop and crouch occasionally; and perform all other postural activities (e.g., climbing and balancing) frequently. She found Werthy to have no other limitations on her physical capacity to work. Id. On December 21, 2009, consultant John M. Pesado, M.D. (specialty unknown) reviewed the record and agreed with all of Dr. Eder’s findings. (A.R. 375)

Also on December 3, 2001, a DDS consultant (whose name is illegible in the record and whose specialty is unknown) completed a Mental Residual Functional Capacity Assessment form (A.R. 355-58), and a Psychiatric Review Technique form (A.R. 359-72). The consultant found Werthy to have borderline intellectual functioning, recurrent depression, and a substance addiction disorder in remission per Werthy’s report. (A.R. 359, 360, 362, 367) He opined these impairments would cause moderate limitations in Werthy’s ability to maintain social functioning, and mild limitation in her ability to maintain concentration, persistence, or pace. (A.R. 369) He indicated she likely would be moderately limited in her ability to understand, remember, and carry out detailed instructions; to interact appropriately with the general public; and to set realistic goals or make plans independently of others. (A.R. 355-56) He opined she would not be significantly limited due to mental impairments in any other area of functioning. Id.

In the consultant’s notes, he indicated he had reviewed a form completed by Werthy where she stated she “takes Trazodone for sleep, has had real bad depression for past 2 yrs, excessive sleeping, increased irritability, bad attitude.’” (A.R. 371) He summarized Werthy’s daily activities as follows:

She helps her mother babysit (taking kids to park & playing w/them), spends time playing the piano or guitar, sometimes plays on the computer, reads the Bible, does household chores, cares for her hygiene & grooming, shops, cooks, uses public transp[ortation], prefers to stay by self, has a boyfriend.

(Id.) The consultant found Werthy’s episodes of depression to be linked to her medical condition. He noted she has a history “of chronic neck & back pain, [and] fibroid tumors.” (Id.) On December 26, 2001, psychiatrist C.S. Dagadakis, M.D. reviewed record and agreed with all of the DDS consultant’s findings. (A.R. 373-77) On September 16, 2002, an unidentified

consultant reviewed the record and completed a Psychiatric Review Technique form. (A.R. 380-93) The consultant’s findings were virtually identical to those of the DDS consultant in December 2001. (Compare id. with A.R. 359-72)

On November 12, 2002, Werthy was seen by psychologist Paul Brown, Ph.D. for a consultative mental status evaluation. (A.R. 524-29) She “denie[d] having any mental health problems” and “state[d] that her mental health reasons for filing for disability [were] ‘not applicable.’” (A.R. 524) Dr. Brown noted Werthy was “quite cooperative,” talkative, “open and friendly.” (A.R. 527) Her thoughts were logical and well organized, and her memory was good. He noted Werthy’s “intelligence by record is borderline with a full scale score of 75 but her memory and her general knowledge and her ability to reason seem much higher than this.” (Id.) He diagnosed Werthy with Depression NOS, history of substance abuse in remission, “[r]ule out manic episodes possible cyclothymic condition,” “[b]orderline intellectual functioning by record but her performance seems superior to this.” (A.R. 528) He estimated her prognosis to be “guarded,”

noting medications might improve her pain and depression somewhat. He further noted, “She has some good stable qualities even though she is very dependent upon her mother and might be able to return to work as she has some work history and is competent in her thinking being very logical.” (Id.)

Dr. Brown further noted that if Werthy was awarded benefits, there was some question whether she could manage her own funds due to a “quite poor” ability with numbers. (Id.) Werthy stated that due to her pain, she could not lift more than two pounds or walk for any distance. However, Dr. Brown noted she was able to sit during the fifty-minute interview “without any noticeable pain behavior.” (A.R. 529) He opined Werthy could interact well with coworkers and the public. Werthy stated she wanted to return to work and Dr. Brown noted “this might be possible.” (Id.)

On February 4, 2003, Linda Jensen, M.D., a Physical Medicine and Rehabilitation specialist, reviewed the record and completed a Physical Residual Functional Capacity Assessment form. (A.R. 395-400) She opined Werthy could lift/earry up to twenty pounds occasionally and ten pounds frequently; sit/stand and walk, each, for about six hours in an eight-hour workday; push-pull without limitation; and perform all types of postural activities occasionally, except she could balance frequently. (A.R. 396-97) Although she found Werthy’s symptoms were attributable to a medically-determinable impairment, she found the severity of the symptoms to be disproportionate to the expected severity or duration based on Werthy’s medically-determinable impairments. (A.R. 398)

Dr. Jensen indicated Werthy was forty-three years old, 60" tall, and weighed 210 pounds. Werthy alleged back pain since an accident in 1993, when a bus in which she was a passenger was struck by another vehicle. Her medical problems as of August 2002 were noted to be “chronic back pain, arthritis, CAT scan lumbar spine, DJD with disc protrusion, impingement, connective disc disease, L^-5, obesity.” (A.R. 399) A back fusion had been recommended, but notes indicate Werthy preferred “to take herbs, does not want surg[ery].” Id. Dr. Jensen noted prior consultants had found Werthy’s complaints to be consistent, and her statements to be credible. Dr. Jensen expressly disagreed with the consistency assessment, finding as follows:

Per the psych [consultative evaluation], claimant stopped all her medications, although she was planning on restarting them. She has advanced L45 [degenerative disc disease] with small protrusion, but no consistent radicular findings. There are some inconsistencies re function, e.g., sat comfortably through psych eval although she indicates sitting is a problem. The [Primary Care Physician] opines on 9-29-02 no work until eval’d for surgery. However, there’s nothing to indicate a referral for a surgeon’s opinion, it is not in functional terms, the claimant was to follow-up on this in one week but it looks like only medication samples were given.

(Id.) Overall, Dr. Jensen agreed with the RFC limitations set forth by the previous consultants. (Id.)

On April 7, 2004, Werthy saw Kim Webster, M.D., a family practitioner, for a consultative physical examination. (A.R. 592-95) Dr. Webster noted Werthy had a “very unusual” affect, and her behavior led the doctor to believe Werthy “may be retarded.” (A.R. 593) Werthy got on and of the examination table, and removed and replaced her shoes, easily. On examination, Werthy was noted to be 70" tall, weighing 205 pounds. She had good muscle tone and strength, and good ranges of motion of her joints. Straight-leg-raising was negative. Dr. Webster found no evidence of neurologic dysfunction to explain Werthy’s neck and low back pain following her “minuscule trauma many, many years ago[.]” (A.R. 595) She found no objective evidence of “any disability in her standing, walking, sitting, lifting, carrying, hearing, speaking, handling objects, or her ability to travel. The doctor further noted there was “some question about [Werthy’s] mental status.” (Id.)

On April 23, 2004, psychologist Dorothy Anderson, Ph.D. reviewed the record and completed a Psychiatric Review Technique form (A.R. 402-15), and a Mental Residual Functional Capacity Assessment form (A.R. 416-19). She opined Werthy would have mild functional limitations in restriction of the activities of daily living and difficulties in maintaining social functions, and moderate functional limitations in her ability to maintain concentration, persistence, or pace. (A.R. 412) She opined Werthy would be moderately limited in her ability to understand, remember, and carry out detailed instructions; to interact appropriately with the general public; and to accept instructions and respond appropriately to criticism from supervisors. She indicated Werthy otherwise would have no significant limitations based on the evidence of record. (A.R. 416-17) She noted Werthy would “require an understanding, supportive supervisor, but not special supervision.” (A.R. 418)

On April 27, 2004, a medical consultant (name illegible and specialty unknown) reviewed the record and completed a Residual Physical Functional Capacity Assessment form. (A.R. 420-24) The consultant’s findings were consistent with those from Dr. Jensen’s February 2003 RFC assessment.

In a “Physical Summary” at the time Werthy’s application was reconsidered, Dr. Eder observed the following from the record evidence:

File back on reconsideration], [Werthy] alleges neck, back, legs, hands, feet, arms, hips, shoulder pain. She has [degenerative disc disease] in the lumbar and cervical spines. She is obese at 70" 243# , gait is normal, station is normal. On exam she is fairly histrionic, good balance, she has some decreased [range of motion]. She has good muscle bulk, tone and strength. She has good strong abduction at the shoulders, she can squat and recover. Motor strength is 5/5, sensation normal, reflexes are zero at the ankles, the knees, and +1 at the biceps and zero at the triceps. Essentially a normal neuromuscular exam with fairly odd symptoms and positive Wad-dell sign. She gives a totally different account of her [activities of daily living] on physical exam compared with psych exam where she reports she essentially runs the household [and] cares for her cousins and her ill mother. Her credibility is questionable; but we can affirm our earlier light RFC.

(A.R. 426)

On July 12, 2005, Werthy saw psychiatrist Nancy Cloak, M.D. for a comprehensive psychiatric examination. (A.R. 597-601) Werthy was noted to be “cooperative and a reliable historian.” (A.R. 597) Werthy described her activities of daily living as follows:

On a typical day, she will find it very difficult ] to get out of bed and to shower, but on most days, is able to do the latter. This is followed by watching television, taking medication, and in the afternoon walking with her boyfriend to the park. She also participates when she is feeling better in housework, meal preparation, and watching her young cousins. She is independent with respect to meals, finances, shopping, transportation, and housework. Though she states at times her pain interferes with these.

(A.R. 598) Dr. Cloak noted that when Werthy was called from the waiting area for her appointment, “she moved with a slow, antalgic gait, and sat stiffly initially. However, as the interview progressed and she became more involved with her story, much of the pain behavior disappeared, except that she stood up approximately 20 minutes into the interview, stating that she was uncomfortable sitting down.” (A.R. 599) Werthy was noted to be “quite preoccupied with her pain.” (Id.)

The doctor noted Werthy’s “objective presentation was inconsistent with depression, in that both her physical appearance and her bright affect as well as the considerable energy she put into expressing her feelings about her pain, were inconsistent with her history of profound fatigue.” (A.R. 600) The doctor did, however, note objectively that Werthy had difficulty concentrating. She diagnosed Werthy with “Adjustment disorder with depressed mood, chronic”; “Cocaine and alcohol dependence in full sustained remission”; “Pain disorder”; and “Chronic neck and back pain.” (Id.) She estimated Werthy’s current GAF at 65. She noted the following conclusion regarding Werthy’s mental functional abilities:

The claimant is capable of managing her Social Security funds[, if they are awarded], based on generally intact judgment and cognitive functioning. She is capable of understanding and remembering instructions, sustaining concentration and attention, and engaging in appropriate social interactions. There do not appear to be any psychiatric limitations to effective job performance, although certain tasks may be limited by her chronic pain.

(A.R. 600-01)

On July 13, 2005, Werthy saw Kim Webster, M.D. for a repeat consultative physical examination. (A.R. 602-06) Werthy’s chief complaints were noted to be low back pain, neck pain, and diffuse myalgias/arthralgias. (A.R. 602) Werthy was noted to have “a very child-like affect and speech pattern.” (A.R. 603) Dr. Webster noted the following observation of Werthy’s behavior during the examination:

[S]he would say, “Ouch” probably 2-4 times per minute. This was said with a very flat affect with no wincing. She would say it sitting or standing perfectly still and nothing really happened, but she would just say “ouch.” There was a fair amount of pain behavior. There were inconsistencies and poor effort.

(Id.) On examination, Werthy was noted to be 70" tall, weighing 243 pounds. Straight-leg-raising was positive at 30 degrees when Werthy was supine, but no discomfort at 90 degrees when sitting. Her ranges of motion were good, gait was normal, and she had fairly good balance and coordination. She also had good musele tone and strength. Dr. Webster’s assessment was “Low back pain with a normal neuromuscular examination, fairly odd symptoms, and positive Waddell sign, strongly suggesting a non-organic cause of pain”; “Neck pain with a normal neuromuscular examination”; “Diffuse myalgias and arthralgias with a normal musculoskeletal examination”; “Anxiety”; and “Morbid obesity.” (A.R. 605) The doctor found “no objective evidence that would limit [Werthy’s] ability to stand, walk, sit, lift, or carry occasionally or frequently.” (Id.) She further found no objective evidence that Werthy would need an assistive device, or that she would have any postural, manipulative, or environmental restrictions. (A.R. 605-06)

On August 10, 2005, psychologist Bill Hennings, Ph.D. reviewed the record and completed a Psychiatric Review Technique form. (A.R. 435^18) His diagnostic impressions included borderline intellectual functioning, an adjustment disorder, a pain disorder, and a history of drug abuse. He opined Werthy would have moderate limitations in her ability to maintain social functioning and to maintain concentration, persistence, or pace; and mild limitation in restriction of her activities of daily living. Dr. Hennings also completed a Mental Residual Functional Capacity Assessment form (A.R. 450-53). He opined Werthy would be moderately limited in her ability to understand, remember, and carry out detailed instructions; to maintain attention and concentration for extended periods; to interact appropriately with the general public; and to set realistic goals or make plans independently of others. (Id.) He otherwise found Werthy to have no mental work-related limitations. (Id.)

On August 11, 2005, Martin Kehrli, M.D., a Physical Medicine and Rehabilitation specialist, reviewed the record and completed a Physical Residual Functional Capacity Assessment form. (A.R. 427-34) His findings were consistent with prior assessments. Dr. Kehrli noted the record evidence contains inconsistencies in Werthy’s “report of function and noted pain behavior and over dramatized presentation.” (A.R. 432) He agreed she does have degenerative disc disease of her neck and back, but her report, presentation, and pain behaviors outweigh the overall severity of her condition. He indicated her ability to perform complex tasks would be affected by her ability to concentrate. Id.

On December 6, 2005, psychologist Paul Rethinger, Ph.D. noted Werthy has “borderline IQs with some depression.” (A.R. 449) He noted the record evidence indicates Werthy cares for her two younger cousins, shops, cooks, cleans, uses the bus, reads her Bible, assists her ill mother, handles necessary household chores, and is independent in caring for herself. She has “somewhat restricted” short-term memory, but her long term memory is good. Id.

2. Werthy’s medical records

The record contains no mention of medical treatment for Werthy’s 1993 accident. Indeed, the earliest treatment notes in the record are from August ,5, 1999, when Werthy saw a doctor complaining of numbness along the lateral aspect of her right thigh and calf, going into her foot. She stated the numbness had started about two weeks earlier. Her other symptoms of pain in her low back, neck, and shoulders were listed as “unchanged” since her last exam. Notes indicate Werthy “wants disability” for her condition. (A.R. 480) Prescriptions for trazodone and nortriptyline were refilled, and she was started on a trial of 600 mg of Ibuprofen three times daily. (Id.) •

Werthy was seen on September 9, 1999, complaining of chronic pain with minimal or unchanged neurological symptoms. Her upper extremity and neck pain were better, but she continued to have low back pain with no radicular symptoms. She described occasional numbness and tingling. She stated her pain was “still there,” but she was dealing with it better. She was given refills for trazodone, nortriptyline, and ibuprofen. (A.R. 478) In addition, notes indicate Werthy was going to send the doctor her “disability paperwork” for review, but the doctor expressed “doubt [that] she really needs this.” (A.R. 479)

On October 25, 1999, Werthy was seen for followup of her chronic pain. She had run out of her medications about a week- and-a-half earlier, and her pain had increased since then. The doctor noted “no consistent objective neurological [findings,]” but he did note the presence of “multiple tender points throughout.” (A.R. 475) He prescribed trazodone 100 mg and nortriptyline 75 mg at bedtime, and NSAIDS as needed. (Id.)

On December 2,1999, Werthy was noted to be “much less tender in her prior tender points [and] neurologieally normal today.” (A.R. 470) Her chronic pain was “much improved on trazodone and nortriptyline.” (Id.) Notes indicate Werthy’s pain and depression were well controlled on the medications, but she had flares of pain with associated emotional lability if she went off her medications even for a short time. Notes further indicate her depression and anxiety had a definite correlation with her chronic pain. (A.R. 473, 474)

Werthy was seen on January 6, 2000, for followup of her chronic pain. Notes indicate she was “[actually doing remarkably well and tolerating meds.” (A.R. 471) She was learning to live with her pain and learning coping strategies. She had begun an exercise program and indicated she might soon have a part-time job. (Id.)

Werthy was seen on April 6, 2000, for followup of her chronic pain. Her condition was noted to be “reasonably stable” and her depression was “well controlled.” She stated she wanted to get a job, and she was approved for part-time work with lighter-type duties. Notes indicate Werthy had “learned to live with pain.” Her dosage of nortriptyline was increased to 100 mg. (A.R. 464-65) Werthy was seen on April 27, 2000, for followup of her chronic pain. The record does not indicate if, or how, she was treated. (A.R. 463)

On July 31, 2000, Werthy’s treating physician’s office spoke with her caseworker at “Lifecenter.” Notes indicate Werthy had “tried doing simple tasks at Lifecenterhanging clothes, etc.,” but she had multiple pain complaints after a few hours. Her case worker indicated “disability not likely indicated” and “maintaining function is key to management of chronic pain.” (A.R. 463) Werthy apparently had been utilizing Lifecenter’s services less recently, which was noted to be “possibly a good sign.” (Id.) Notes further indicate, “doubt there is any indication for ... disability.” (Id.)

Werthy was seen on August 8, 2000, with a complaint of back and neck pain, which she stated had been present since 1993. She was seen for followup on August 24, 2000, but notes do not indicate if, or how, she was treated. (A.R. 462) She missed a scheduled appointment on September 7, 2000, when she was scheduled to be seen “for back pain.” (Id.)

Werthy saw a doctor on October 30, 2000, for followup of a “cracked rib/baek/ neck injury” from a motor vehicle accident. She had suffered a rib strain after being involved in an altercation on October 30, 2000. Her “chronic pain issues” were noted to be “stable” and she was “functional.” (A.R. 455) Her medications for chronic pain were continued without change. (A.R. 456)

On April 2, 2001, Werthy saw a doctor to get established as a new patient. She completed a “Review of Systems” form on which she indicated she had stress and depression stemming from her ongoing back pain and menstrual bleeding problems, but she had no other health problems or concerns. (A.R. 512) Werthy returned for an annual physical examination on May 7, 2001, and her depression.was noted to be “stable” on her current medications. (A.R. 509) Regarding her chronic lower back pain, she was continued on NSAIDS at night, and she was given information on “stretching, back health, [and an] exercise regime[.]” (A.R. 508)

On October 8, 2001, Werthy saw Robert A. Berselli, M.D., an orthopedic surgeon, for consultation regarding her ongoing neck and back pain. Notes indicate Werthy was 5'11" tall, and weighed 225 pounds. Examination revealed some restricted range of motion of her neck in all directions; diffuse tenderness to palpation posteriorly; moderate pain in her lumbar spine on percussion, with mild, diffuse paralumbar muscle spasm, but “no real sciatic notch tenderness” and normal lower extremities neurologically. (A.R. 566) The doctor noted, “I am not sure why the patient complains of neck or back pain.” (Id.) He ordered x-rays of Werthy’s cervical and lumbar spine, and planned to follow up after they were taken. (Id.)

On October 23, 2001, progress notes indicate a phone conversation was had with Werthy “who stated that MRI was not done [because] tech thought she should have ‘whole body MRI.’ ” (A.R. 506) The doctor’s office spoke with the MRI tech, who stated Werthy had never presented for an MRI, at least according to their log. (Id.) Werthy’s MRI was rescheduled for October 29, 2001. (Id.) The MRI showed “[relatively advanced degenerative disk disease ... at- L4-L5, where the disk space is narrowed and where the disk material is of lower-than-normal signal intensity, indicating desiccation. This is associated with a small posterior disk protrusion which indents the anterior aspect of the spinal canal midline and slightly toward the right.” (A.R. 516)

On November 27, 2001, Werthy saw a doctor with continued complaints of near-daily back pain, some days worse than others. The doctor prescribed Relafen, and recommended weight loss and exercise. (R. 502-03)

Werthy saw a doctor on January 7, 2002, for followup of her chronic pain. She complained of daily pain that was causing sleeplessness, inability to get into a comfortable position, and mood swings. Notes indicate an MRI of her lumbar spine showed severe degenerative disc disease with a small disk protrusion. The doctor prescribed Relafen, stretching, and a weight loss plan. (A.R. 500) On January 29, 2002, the doctor refilled a prescription for trazodone. (Id.) On May 21, 2002, a doctor prescribed Tylenol # 3 and Relafen. (A.R. 501)

On June 13, 2002, Werthy saw a doctor complaining of right shoulder pain, right ankle pain with bending, severe back pain that sometimes awakened her at night, and a worsening of her depression symptoms. The doctor prescribed weight loss, exercise, Bextra, and glucosamine chondroitin. (Id.)

Werthy saw a doctor on August 29, 2002, for followup of “chronic arthritis” and “severe back pain.” (A.R. 498) She also complained of “chronic depression.” (A.R. 499) Werthy stated she had “reached a point where she [could] hardly sit steady for awhile or do any kind of walking or activities because of the excruciating pain that she had into the lower back.” (Id.) Her pain was localized in her lumbar and lower thoracic spine. Notes indicate a previous CT scan “showed degenerative disk disease with some protrusion of the disk. Even though there was no specific area of compression into the root nerve, the degenerative disk is quite impinged with desiccation of the disk itself, which explain[s] the kind [of pain] that she has with no radiation and with no sciatica.” (Id.) The doctor prescribed a trial of Bextra, supplemented with Lorcet, and a continuation of trazodone for her depression. She was scheduled for followup in one week, with notes that if she had not improved, a repeat CT would be ordered for possible surgical evaluation. She was given a note directing her to refrain from any kind of physical activity for one week. (Id.; A.R. 523)

On September 4, 2002, Werthy saw a doctor for followup of her back and neck pain. She was given samples of Celebrex and Zoloft. (A.R. 497) On September 18, 2002, she returned for followup. The Celebrex, Lorcet, and Zoloft were continued, and Xanax was added for her reported insomnia. In addition, an MRI of Werthy’s lumbar spine was ordered. (A.R. 498)

On October 3, 2002, at Werthy’s request, she was given a prescription for Valium for her MRI, which was scheduled the next day. A progress note dated October 9, 2002, indicates, “Valium didn’t work for MRI. Needs something stronger.” (A.R. 536) Ativan was prescribed. (Id.) The next note dated October 29, 2002, indicates Werthy had called requesting medications again for her MRI. The request was denied until she could be seen by a doctor. (Id.)

Werthy had an MRI on November 21, 2002, that showed “advanced disc degeneration” at L5-S1, with “a mild diffuse disc bulge in conjunction with bilateral marginal spurring. This extends into the region of the neuroforamina bilaterally but does not appear to be associated with impingement upon the exiting L5 nerve roots.” (A.R. 559) The radiologist also noted “transitional vertebra at the lumbosacral junction considered to be related to partial lumbarization of SI.” (Id.)

Werthy saw Jencina M. Butler, D.O., a family practitioner, on January 7, 2003, to discuss the results of her MRI. She stated her back pain was “severe” that morning. She had been unable to tie her own shoes; she had “irritability” in her legs; and she had “pins and needles” and numbness in her feet. (A.R. 535) She also had a pins- and-needles sensation in her upper arms. (Id.) The doctor advised Werthy “that her back pain is now chronic, and stems from arthritis and radiculitis, which do[] not respond well to narcotics (which the patient ha[d] NOT requested).” (A.R. 537) She gave Werthy a prescription for Neurontin 300 mg at night, noting the dosage could be increased if it was not working. She recommended gentle exercise such as water aerobics, yoga, or tai chi. She noted Werthy’s pain might increase in the beginning, but likely would decrease as her strength improved, and the exercise also would help her depression. (Id.)

Werthy saw Dr. Butler on January 21, 2003, for followup. She reported “some improvement of her pain on Neurontin,” and also stated the medication had helped her “leg irritability.” (A.R. 533) She reported pain improvement for about eight hours, but no longer. She was “losing sleep as a result of her pain,” and requested a prescription for trazodone, which had worked for her in the past. She was exercising gently every day, and stated her mood had improved since she had begun exercising. The doctor increased Werthy’s Neurontin dosage to 300 mg three times daily. Werthy was continued on Bextra as needed for “breakthrough pain,” and she was given a prescription for trazodone. (Id.)

Werthy saw Dr. Butler on June 11, 2003, for followup of her ongoing back pain. She stated Neurontin was not providing her any relief, and she was not sleeping well. She was exercising daily, but had gained seven pounds from “eating more bacon.” (A.R. 532) She complained that her depression had been worse over the past two or three months, partly due to her pain and sleep deprivation. Werthy was counseled in “non-pharmacologic methods of pain control, to which she was quite receptive.” (Id.) The doctor prescribed hydrocodone and trazodone, and directed Werthy to take Tylenol “for controlling the arthritic component of her pain.” (Id.) She was scheduled to return for followup in one month to evaluate the effectiveness of her medication regimen. (Id.)

Werthy saw Dr. Berselli- on February 3, 2004, in connection with her application for disability benefits. He ordered x-rays, of Werthy’s cervical, lumbar, and thoracic spine. (See A.R. 585-90, 630-32) He saw Werthy again on February 10, 2004, to review the x-ray findings, noting the following:

The x-rays of the thoracic spine done on the 3rd of February seem unremarkable. The films of the lumbar spine done on the same date show severe degenerative disk disease at L4-5 and L5-S1. Finally, the films of the cervical spine done on the same date reveal degenerative disk disease, severe in degree, at C3-4, C4-5, and C5-6.

(A.R. 567; see A.R. 568-70)

On February 16, 2005, Werthy was admitted to the hospital with pneumonia. She improved quickly on antibiotics and was discharged on February 19, 2005. (A.R. 574-84)

On August 27 and 28, 2005, Werthy was seen for cellulitis of the left leg and an abscess to her left lower extremity, possibly resulting from a spider bite. She was directed to elevate her leg above chest level for three days, rest, refrain from any strenuous activity, and take Ibuprofen for pain. (A.R. 573, 591, 619-22)

The record reflects no doctor visits for two years thereafter. On September 6, 2007, Werthy saw Song Jin Kim, M.D., an Internal Medicine specialist, for a new-patient visit. (A.R. 623-24) Werthy reported that her back and neck pain recently had gotten worse, with pinching and numbness in her hands and legs, and a “lot of pain across her neck and lower hip area just sitting around.” (A.R. 623) She also stated she felt depressed, and the pain was causing her not to be as happy as she used to be. Dr. Kim diagnosed Werthy with a depressive disorder with insomnia, for which she prescribed trazodone 50 mg; and lumbago with, associated cervicalgia, for which she prescribed vicodin. (AR. 623-24)

Werthy returned to see Dr. Kim on September 20, 2007. She still was having insomnia. She also had suffered a “crushing injury” to her toe, which was treated with a “buddy wrap.” On examination, Werthy exhibited tenderness in the trapezius and deltoid areas, and around her scapula on the right. The doctor increased Werthy’s trazodone dosage to 150 mg at night. (A.R. 625)

Werthy saw Dr. Kim on November 9, 2007, for followup. She continued to complain of back pain. She was sleeping better, and she had lost fifteen pounds. She was “tearful about the loss of her mother,” but she declined a prescription for another antidepressant. She was directed to continue on her current medications and exercises. '(A.R. 626)

On December 24, 2007, Dr. Kim wrote a letter to the state agency regarding Werthy. Dr. Kim stated she had been treating Werthy “for the past few months” for “Lumbago,” “Cervicalgia,” and “Insomnia — possible.” (A.R. 607) She stated Werthy’s “physical exam is essentially normal and I don’t suspect any vascular or neurologic disorder. However, she is in some musculoskeletal discomfort and she has been attending to this very diligently with some prescription medications and changes in her diet and exercise programs.” (Id.)

On January 22, 2008, Werthy saw Dr. Kim for followup, and to request assistance with a questionnaire for the doctor’s completion in connection with Werthy’s application for disability benefits. (A.R. 609-15) Werthy reported that the trazodone was not helping. She stated she had pain doing daily activities, “even just the laundry,” and she was “[u]nable to work because of spinal pain ... [radiating] into her arms and legs.” (A.R. 627) The doctor prescribed Fluoxetine 20 mg for depression, and hydrocodone with acetaminophen for pain. (Id.)

On the questionnaire, Dr. Kim indicated she had been treating Werthy “[a]bout once a month” for “lumbago/depression/cervicalgia.” (A.R. 609) She listed Werthy’s symptoms as “feet dull, a lot of pain, neck strain and pain and arm pain,” and indicated Werthy’s prognosis was “good.” (Id.) She noted tramadol had been ineffective in relieving Werthy’s pain and also caused sedation. The doctor opined Werthy likely would have “substantial difficulty with stamina, pain or fatigue if [she] was working full time, eight hours a day, at the light or sedentary levels of exertion,” and she would need to work at a reduced pace. (Id.) She further opined Werthy’s health problems would worsen if she worked full-time. (A.R. 610) Dr. Kim indicated Werthy is not a malingerer, although emotional factors do contribute to the severity of her symptoms and functional limitations. (Id.)

Dr. Kim opined Werthy could tolerate a low-stress job, noting Werthy “manages family stress ok but [gets] overwhelmed if too much stress.” (A.R. 611) She noted Werthy requires frequent changes in position “to relieve pain and pressure in her spine.” (Id.) She estimated Werthy would be able to stand and walk for about two hours, and sit for about four hours, in an eight-hour workday. She could sit for twenty minutes before needing to change positions; stand for ten minutes before changing positions; and she would need to walk around every ten minutes for five minutes each time. She would need the ability to change positions at will from sitting or standing/walking, and she would need to lie down “every forty min.” during a work shift. The doctor indicated Werthy’s x-rays supported her opinions regarding Werthy’s limitations. (A.R. 612)

Dr. Kim indicated Werthy should rarely twist, stoop/bend, crouch, or climb stairs, and she should never climb ladders. Werthy could feel and handle without limitation, but she would be limited in her ability to reach, including overhead; finger; and push/pull. She opined Werthy could lift up to ten pounds occasionally, over ten pounds rarely, and she should never lift over ten pounds. She based this opinion on Werthy’s subjective report that she “gets pain in her arms with weights of 5 pounds.” (A.R. 613) The doctor noted Werthy’s symptoms worsen with environmental changes, and Werthy should avoid concentrated exposure to wetness, noise, and fumes/odors/dusts; and even moderate exposure to extremes of hot and cold, and humidity. (A.R. 614) She indicated Werthy should avoid all exposure to hazards. (Id.) In Dr. Kim’s opinion, Werthy would be absent from work more than four times a month due to her impairments or treatment. (Id.) She further indicated Werthy had been continuously unable to work since 1993. (A.R. 615)

Werthy saw Dr. Kim on February 5, 2008, for followup. Notes indicate she was “[d]oing well with the vieodin and the prozac but still has some difficulty sleeping.” (A.R. 628) In addition, Werthy had bronchitis. The doctor prescribed prednisone and an inhaler for the bronchitis, and continued her on the hydrocodone with acetaminophen. (Id.) These medications were refilled on March 17, 2008. (A.R. 629)

On July 11, 2008, the ALJ wrote a letter to Dr. Kim requesting clarification as to what appears to be two contradictory opinions. The ALJ noted that in Dr. Kim’s letter of December 24, 2007, she expressed the opinion that Werthy “had had a normal physical examination.” (A.R. 633) However, when Dr. Kim completed the questionnaire on January 22, 2008, she opined that Werthy “had significant limits on her activities.” (Id.) The ALJ asked the doctor for assistance in understanding the bases of her opinions and how she had arrived at her conclusions regarding Werthy’s functional limitations. (Id.) The ALJ requested a response within ten days. No response from Dr. Kim appears in the administrative record.

B. Summary of the Vocational Evidence

1. VE’s testimony

At the ALJ hearing on July 14, 2008, the ALJ asked VE Paul Morrison the following hypothetical question:

Assume an individual 49 years of age, has completed the eleventh grade, and has a GED. She has also completed EMT training. I want you to assume that she can sit eight hours in an eight hour day with normal breaks, and the ability to shift positions or to stand. She can stand and walk four to six hours in an eight hour day, 30 minutes at a time, particularly if she can shift positions as from one leg to another, or taking a step or two. She can lift 10 pounds repeatedly. She must avoid bending, crouching, kneeling, and crawling. She also must avoid balancing, unprotected heights, and hazardous machinery. Can you identify any jobs she could perform?

(A.R. 676-77) The VE responded that the hypothetical individual could work as an electronic assembler or a receptionist, both of which are sedentary, semi-skilled jobs. She also could work as an addresser, a surveillance system monitor, and a charge account clerk, all of which are sedentary, unskilled jobs. (A.R. 677) All of the jobs the VE listed would allow the individual to change positions as noted in the ALJ’s hypothetical. (A.R. 678)

Werthy’s attorney asked the VE the following hypothetical question:

Now let’s assume that this person would need to work at a reduced work pace if they are employed full-time eight hours a day at the light or sedentary levels of exertion and, based on testimony received and yet to be received, let’s assume that is half or less of a normal person. Let’s assume this person would frequently have health symptoms severe enough to interfere with attention and concentration. This person would be limited to low stress jobs. They would be able to stand and walk about six hours with normal breaks during an eight hour day, and they would be able to sit about four hours with normal breaks during an eight hour day. They would need, they could sit up to 20 minutes at one time before changing position, and stand up to 10 minutes at one time before changing positions. They would need to walk around about every 10 minutes, and on these occasions they would need to walk around for about 5 minutes. They would need to shift at will from sitting, standing, and walking. This person would need to lie down at unpredictable intervals during a work shift, and this would happen about every 40 minutes. They could rarely[,] meaning 5 percent or less at a time[,] twist, stoop, crouch or climb stairs, and never climb ladders. They can occasionally lift and carry less than 10 pounds and rarely, meaning 5 percent or less at a time, as much as 10 pounds. They should avoid moderate exposure to extremes of heat and cold, avoid concentrated exposure to wetness, as well as noise, fumes, odors, dust and gases. Avoid moderate exposure to humidity, and avoid all exposures to hazards such as machinery and heights. This person’s health problems are such that they could be expected to be absent from work more than four times a month. If we were to add those elements to the Judge’s hypothetical, is it likely that such a person could sustain competitive employment in any of the jobs you’ve discussed?

(A.R. 678-79) The VE responded that the hypothetical individual would be unable to work.

Werthy’s attorney asked the VE a second hypothetical question:

Let’s add these to the Judge’s original hypothetical now, and assume this person has headaches, and these will occur daily or nearly every day, and two or three times a day, and ... would last for 15 or 20 minutes during which they would not be functional. The crying spells would occur two or three times a day, however, which would tend to last for hours rather than minutes when they would not be functional. This person would have some problems with dizziness, which would occur daily, or nearly every day, and last for about 15 or 20 minutes when they would not be functional. We would have a problem with panic attacks that would occur unpredictable These could occur up to as often as four times a day when the person would not be functional, and could last for minutes or hours. If we added those elements to the Judge’s hypothetical, is it likely that such a person could sustain competitive employment in any of the jobs you’ve discussed?

(A.R. 679-80) The VE responded that the individual would be unable to maintain employment. (A.R. 680)

2. Third-party evidence

Werthy apparently attempted to find employment through the State of Oregon’s Office of Vocational Rehabilitation. On June 5, 2008, her voc-Rehab Counselor wrote her a letter stating, “As we discussed in your last appointment we came to the conclusion that your pain is interferring [sic] with you being able to find employment at this time. Because of this we are closing your file like we had discussed. Please feel free to reapply whenever you feel like you are able to participate in the vocational activities.” (A.R. 344)

C. Medical Expert’s Testimony

David Ruleman, M.D. testified as a medical expert at the ALJ hearing. He is board certified in internal medicine. He has never examined Werthy, but he has reviewed all the medical evidence of record. He found Werthy to have medically-determinable impairments consisting of neck and low back pain, degeneration of the L5-S1 disc space, and “similar abnormalities” in her cervical spine. (A.R. 639)

Dr. Ruleman noted that Dr. Webster examined Werthy twice and found no objective findings to support any physical limitations on Werthy’s abilities. (A.R. 640-41) With regard to Dr. Kim’s opinion that Werthy has significant limitations, Dr. Ruleman noted the record did not contain treatment notes from Dr. Kim to support her opinion. In addition, he indicated her opinion was in conflict with Dr. Webster’s 2004 and 2005 examinations of Werthy. (A.R. 640-41) .

From his examination of the records, Dr. Ruleman opined Werthy would have “some limitations but ... not sufficient to interfere with many types of work activity.” (A.R. 642) He opined Werthy would be able to sit for four hours at a time, for a total of eight hours during the workday, “particularly if she has the ability to rise when needed.” (Id.) He opined she could stand for thirty minutes at one time, assuming she could shift her weight from one leg to the other, take a step forward, or similarly shift position. (Id.) If she could alternate sitting and standing, he indicated Werthy should be able to stand a total of four hours during the work day. (Id.) He further opined Werthy could “[definitely” lift ten pounds repeatedly. She could do reaching, but likely could not perform other postural activities. (A.R. 643) He stated Werthy would have to change positions more than once every two hours. (Id.)

D. Werthy’s Testimony

1. July 14, 2008, Hearing

Werthy testified to the following facts at the ALJ hearing. She was born in 1959, and was forty-nine years old at the time of the hearing. She lives with David Shea, who has been helping her since her mother died, but he expects to be repaid. She gets food stamps on her own behalf, and she also gets food stamps and medical benefits for her two young cousins, who live with her. Werthy has a G.E.D., and after high school, she completed an EMT course and worked for nearly a year at an ambulance service. (A.R. 665-68) She can read a newspaper and write a letter. To her recollection, she last worked in 1992 or 1993. (A.R. 668)

She first started having problems with headaches within a couple of years after her accident. Her headaches are getting worse as time goes by. She has “pain in [her] head” at least four days out of every week. When she gets a headache, she takes medication, and it is about fifteen to twenty minutes before she gets relief. The headaches interfere with hér ability to function. (A.R. 64546)

She also has arthritis, which began immediately after the accident in 1993. Due to the arthritis, she cannot get around as quickly as she used to. She stated the arthritis is “spreading,” because it originally was only in one leg, but now her other leg is beginning to hurt more. (A.R. 646) She also stated her ankles swell up and hurt a couple of times a week. (A.R. 659)

She has a lot of pain in her neck, and she has difficulty raising her head to look up. When she turns her head from side to side, she hears a cracking noise. Her legs hurt all the time due to pain radiating from her back. She also has pain in her feet, and in her arms and hands. She has pain all day, every day, despite taking medication. She has to have help carrying groceries, braiding her hair, washing dishes, and other tasks. She sometimes drops dishes. She does very little housework. (A.R. 647-48, 660, 662)

Werthy stated she has problems with diarrhea that started in about 2005. She has accidents when she cannot get to a bathroom in time. She stated she has virtually no advance notice when she is going to have diarrhea, and she frequently has to change her clothes after an attack. She stated she goes to the bathroom regularly “from seven to ten times a day,” and she has to shower and change her clothes “three times a day.” (A.R. 649) She estimated she would be away from work “maybe 75 percent of the time” because she would be in the bathroom. (Id.) Upon questioning by the ALJ, Werthy later stated she has not mentioned her diarrhea to any doctor because she has been able to control it by eating cheese. Now she has diarrhea “every once in awhile ... [o]ff and on.” (A.R. 669-70) She also explained that she never mentioned the diarrhea problem to her doctor because she wasn’t experiencing diarrhea on the day she saw the doctor. (A.R. 670-72)

She also suffers from depression, which began soon after the 1993 accident. She no longer likes to leave the house except for doctors’ appointments and the like. She stated she has gained a lot of weight due to the depression. She also has problems sleeping, getting only a couple of hours of sleep at night. She gets up four to six times during the night. She is tired when she gets up in the morning, She naps frequently during the day for short periods of time, and she also takes a longer nap of at least an hour once a day. (A.R. 650-51, 658-59) She also stated depression has affected her energy level, stating, “There is no energy level. I mean, I have to practically be dragged out of the house now in order to go anywhere, or to even feel like I’m alive again.” (A.R. 651) Werthy stated she used to be very active and have a lot of interests prior to the accident, but this has changed substantially and “[fit’s been really a different life for [her].” (Id.) She feels guilty because she is unable to do her best due to her constant pain. She also has problems concentrating. She can only read for a few minutes at a time before she loses focus or interest. (A.R. 652, 656)

Werthy also described fits of anger, and frequent panic attacks, often several times a day. She stated the panic attacks have b