Cavazos v. Social Security Administration
ORDER REMANDING TO THE COMMISSIONER. The ALJ erred in the credibility determination and in not sufficiently developing the record to determine Cavazos's disability. This case is therefore remanded to the Commissioner so that a consultative examination may be ordered to sufficiently develop the record. Signed by Magistrate Judge Jerome T. Kearney on 4/25/2016. (jak)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CAROLYN W. COLVIN,
Social Security Administration
ORDER REMANDING TO THE COMMISSIONER
Gilberto Cavazos filed for social security disability benefits with an alleged onset
date of March 28, 2011. (R. at 79). After a hearing, the administrative law judge (ALJ),
denied his application, and the Appeals Council declined review. (R. at 4). Cavazos has
requested judicial review, and the parties have consented to the jurisdiction of the
For the reasons stated below, this Court reverses and remands the
The Commissioner’s Decision
The ALJ found that Cavazos had the severe impairments of hypertension, non-
insulin dependent diabetes mellitus, lumber stenosis, obesity, and mood disorder with
anxiety. (R. at 17). The ALJ found that Cavazos had the residual functional capacity
(RFC) to perform sedentary work with the additional limitations that the work require
only incidental interpersonal contact; that the complexity of tasks be limited to that
which could be learned by demonstration or repetition within thirty days with few
variables; that the work require little judgment; and that supervision be simple, direct,
and concrete. (R. at 21–22).
After taking testimony from a vocational expert (VE), the ALJ found that,
although Cavazos could not return to any of his prior relevant work, he could perform
jobs such as sorter and final assembler and was not disabled. (R. at 30).
Cavazos argues that the ALJ erred when determining Cavazos’s credibility, that
the record does not support the ALJ’s decision, and that the ALJ’s questions to the
vocational expert were inadequate.
On review, this Court determines whether substantial evidence on the record as a
whole supports the ALJ’s decision. Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997).
“Substantial evidence” is evidence that a reasonable mind would find sufficient to
support the ALJ’s decision. Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009).
Reversal is not warranted merely because substantial evidence exists to support a
contrary conclusion. Long, 108 F.3d at 187.
a. The Credibility Determination
In coming to a decision regarding Cavazos’s RFC, the ALJ found that Cavazos was
not entirely credible regarding his limitations and pain level. (R. at 22,–23). The ALJ
found that the limitations Cavazos testified to seemed self-imposed and that the medical
records did not contain the limitations that Cavazos claimed. (R at 22–23). Cavazos
maintains that the ALJ erred in the determination.
The Court defers to the ALJ’s evaluation of a claimant’s credibility when that
determination is supported by good reason and substantial evidence. Turpin v. Colvin,
750 F.3d 989, 993 (8th Cir. 2014). “An ALJ may not reject subjective complaints solely
because they lack support in the medical record.” Miller v. Sullivan, 953 F.2d 417, 420
(8th Cir. 1992).
In making the credibility determination, the ALJ noted only that the medical
records did not establish the levels of pain that Cavazos claimed. (R. at 23). The ALJ did
not observe any inconsistency with activities of daily living, and the inconsistencies that
the Commissioner cites in briefing are not supported by substantial evidence. For
instance, the Commissioner notes that Cavazos stated his work schedule would not
allow physical therapy during an appointment that occurred on March 28, 2011, the
alleged onset date. (R. at 291). This statement is not inconsistent with the onset date,
especially as Cavazos has claimed that his pain worsened following surgery. (R. at 221,
Additionally, while some statements in the medical records indicate that Cavazos
was working in 2012, his earnings records show no income for 2012 or 2013. (R. at 85).
The ALJ, relying on this information, found that Cavazos had not engaged in substantial
gainful activity since his onset date. (R. at 17). The only mention the ALJ’s decision
makes of Cavazos’s work history is to state that his varied work history and low earnings
indicate a lack of motivation. Cavazos has only a ninth grade education and significant
mental health issues that the ALJ recognized. (R. at 17, 22). These issues would
significantly limit Cavazos’s employment opportunities. The Eighth Circuit has
recognized in similar situations that low earnings are “an unacceptable reason to
discredit [a claimant’s] subjective complaints of pain.” Gude v. Sullivan, 956 F.2d 791,
795 (8th Cir. 1992).
Furthermore, the record contains no evidence of malingering by Cavazos or any
other objective indication that he is exaggerating his symptoms. Cavazos consistently
sought treatment for his impairments, and he even opted for surgery over more
conservative treatment in hopes of decreasing his recovery time. (R. at 191). Cavazos
also consistently rated his highly in medical records, from 7 to 10 on a scale of 1 to 10 or
5 on a scale of 1 to 5. (R. at 516, 518, 519, 521, 522, 530, 534, 537, 540).
The medical records do not contradict Cavazos’s claims regarding his pain and
daily activities. Cavazos’s doctors did not express an opinion regarding his work
capacity, but this does not constitute substantial evidence supporting an RFC when no
such opinion was requested and especially when Cavazos was not discharged from
treatment. Hutsell v. Massanari, 259 F.3d 707, 712 (8th Cir. 2001).
The ALJ’s credibility determination was not supported by good reason and
substantial evidence. The reasons the ALJ provided for discrediting Cavazos were
insufficient, and nothing in the record contradicts his subjective complaints of pain. The
ALJ erred in making the credibility determination.
b. Sufficiency of the Evidence
Cavazos contends that the evidence in the record does not support the ALJ’s RFC
determination. He argues that the ALJ improperly found that he could do sedentary
work in spite of evidence indicating that Cavazos could not sit for extended periods of
time. Cavazos also maintains that the RFC failed to account for the limitations of his
obesity and limitations observed by an evaluating mental health provider. He also
claims that the ALJ only referred to non-examining doctors’ opinions in arriving at the
RFC and that the ALJ should have more fully developed the record by recontacting
treating physicians or ordering a consultative examination.
For the first point, the ALJ disregarded Cavazos’s complaints of pain while sitting
based largely on the erroneous credibility determination. As the ALJ improperly
disregarded Cavazos’s uncontradicted testimony regarding his pain while sitting, this
Court cannot say that the RFC is supported by substantial evidence. The Commissioner
argues that the record does not contain consistent complaints of pain while sitting.
However, a review of the record in its entirety reveals that Cavazos had made complaints
as far back as 2010 regarding pain while sitting. (R. at 156, 159, 170, 173). While these
records precede the onset date, they do show that the complaints of pain while sitting
are not new.
As to the limitations in the RFC related to obesity and mental functioning, the
ALJ properly accounted for those two impairments. While Cavazos states that the RFC
did not account for obesity, the ALJ specifically discussed obesity and states that it was
accounted for in the RFC. (R. at 25–26). The ALJ is entitled to a presumption that he
did what he said he did in accounting for those limitations. See Wilburn v. Astrue, 626
F.3d 999, 1003–04 (8th Cir. 2010). Additionally, a limitation to simple work adequately
accounts for Cavazos’s limited abilities to maintain concentration, persistence, and pace.
Howard v. Massanari, 255 F.3d 577, 582 (8th Cir. 2001). The RFC was sufficient with
regard to those impairments.
Cavazos also complains that the ALJ relied exclusively on nonexamining source
opinions in order to establish the RFC. The nonexamining sources based their opinions
on a review of the medical records from treating physicians, and Cavazos maintains that
the record as a whole was not sufficient for the ALJ to render a decision and so should
have ordered a consultative examination or recontact the treating physicians.
“The opinions of doctors who have not examined the claimant ordinarily do
not constitute substantial evidence on the record as a whole.” Nevland v. Apfel, 204
F.3d 853, 858 (8th Cir. 2000). An ALJ has the duty to fully and fairly develop the
record, even if the claimant is represented by counsel. Dozier v. Heckler, 754 F.2d 274,
276 (8th Cir. 1985). However, “[t]he ALJ is required to recontact medical sources and
may order consultative evaluations only if the available evidence does not provide an
adequate basis for determining the merits of the disability claim.” Sultan v. Barnhart,
368 F.3d 857, 863 (8th Cir. 2004).
In this instance, the ALJ gave a great deal of weight to the nonexamining source
opinions. (R. at 29). The record as it stands, however, is devoid of any treating source
opinion regarding Cavazos’s functional capacity. The treatment records do not express
an assessment of Cavazos’s lifting capacity, walking distance, or any other functional
limitations. The treating source records are insufficient to determine whether Cavazos is
disabled, and the nontreating sources only had the information within those records on
which to base their opinions. The ALJ erred in not sufficiently developing the record to
determine Cavazos’s functional capacity.
While the ALJ sufficiently accounted for Cavazos’s obesity and mental health
issues in the RFC, additional information is necessary to determine if Cavazos is
c. Questions to the Vocational Expert
Cavazos’s complaints regarding the hypothetical question posed to the VE echo
his complaints regarding the omission of obesity and deficiencies in concentration,
persistence, and pace. As those two impairments were properly accounted for in the
RFC, the hypothetical was sufficient regarding those impairments as well. However, to
the extent that the ALJ’s RFC determination was in error, the hypothetical to the VE was
The ALJ erred in the credibility determination and in not sufficiently developing
the record to determine Cavazos’s disability. This case is therefore remanded to the
Commissioner so that a consultative examination may be ordered to sufficiently develop
It is so ordered this 25th day of April, 2016.
JEROME T. KEARNEY
UNITED STATES MAGISTRATE JUDGE
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