Benham v. Social Security Administration
MEMORANDUM OPINION AND ORDER reversing the Commissioner's decision and remanding this matter to the Commissioner for further proceedings consistent with this opinion. This is a "sentence four" remand. Signed by Magistrate Judge J. Thomas Ray on 11/7/2011. (kdr)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
LITTLE ROCK DIVISION
BOBBY BENHAM, JR.
NO. 4:11CV00080 JTR
MICHAEL J. ASTRUE,
Commissioner, Social Security Administration
MEMORANDUM OPINION AND ORDER
Plaintiff, Bobby Benham, Jr., has appealed the final decision of the
Commissioner of the Social Security Administration denying his claims for Disability
Insurance Benefits (DIB) and Supplemental Security Income (SSI). Both parties have
submitted Appeal Briefs (docket entries #11, #14), and the issues are now joined and
ready for disposition.
Judicial review of the Commissioner's denial of benefits examines 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. 42 U.S.C. §§ 405(g), 1383(c)(3);
Wildman v. Astrue, 596 F.3d 959, 963 (8th Cir. 2010). 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). In its review, the Court
should consider evidence supporting the Commissioner’s decision as well as evidence
detracting from it. Wildman, 596 F.3d at 964. However, a decision will not be
reversed merely because substantial evidence would have also supported a contrary
outcome, or because the Court would have reached a different conclusion. Id.
On November 7, 2008, Plaintiff protectively filed applications for DIB and SSI,
alleging a disability onset date of June 16, 2008. (Tr. 126-41, 155.) He reported that
he was unable to work due to a bulging disc, a pinched nerve, fibromyalgia and
arthritis. (Tr. 160.) He was thirty-five years old at the time of his applications, had
obtained his GED, and had received vocational training in building and apartment
maintenance. (Tr. 155, 167.) He had past work as a tank operator in the Army, a
cleaning supervisor, a bartender, a food deliveryman and salesman, a factory worker,
an automobile salesman, a pest control technician, and a maintenance worker and
supervisor at an apartment complex. (Tr. 36-42, 160-62.)
After Plaintiff’s claims were denied at the initial and reconsideration levels, he
requested a hearing before an Administrative Law Judge (ALJ). On September 16,
2009, the ALJ conducted a hearing at which Plaintiff, his wife, and a vocational expert
testified. (Tr. 23-81.)
The ALJ considered Plaintiff’s impairments by way of the familiar five-step
sequential evaluation process. Step 1 involves a determination of whether the
claimant is involved in substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(i) &
(b), 416.920(a)(4)(i) & (b). If the claimant is, benefits are denied, regardless of
medical condition, age, education, or work experience. Id.
Step 2 involves a determination, based solely on the medical evidence, of
whether the claimant has a “severe” impairment, i.e., an impairment or combination
of impairments which significantly limits the claimant’s ability to perform basic work
activities. Id. §§ 404.1520(a)(4)(ii) & (c), 416.920(a)(4)(ii) & (c). If not, benefits are
Step 3 involves a determination, again based solely on the medical evidence,
of whether the severe impairment(s) meets or equals a listed impairment, which is
presumed to be disabling. Id. §§ 404.1520(a)(4)(iii) & (d), 416.920(a)(4)(iii) & (d).
If so, and the duration requirement is met, benefits are awarded. Id.
Step 4 involves a determination of whether the claimant has a sufficient residual
functional capacity (RFC), despite the impairment(s), to perform the physical and
mental demands of past relevant work.
Id. §§ 404.1520(a)(4)(iv) & (f),
416.920(a)(4)(iv) & (f). If so, benefits are denied. Id.
Step 5 involves a determination of whether the claimant is able to make an
adjustment to other work, given the claimant’s RFC, age, education and work
experience. Id. §§ 404.1520(a)(4)(v) & (g), 416.920(a)(4)(v) & (g). If so, benefits are
denied; if not, benefits are awarded. Id.
In his October 2, 2009 decision (Tr. 11-22), the ALJ found that Plaintiff: (1)
had not engaged in substantial gainful activity since June 16, 2008, his alleged onset
date; (2) had “severe” impairments of degenerative disc disease with sacroilitis,
piriformis syndrome, status post permanent placement of a spinal cord stimulator, pain
disorder due to a general medical condition and psychological factors, cognitive
disorder, low average intellectual functioning, and depressive disorder; (3) did not
have an impairment or combination of impairments that met or equaled a listed
impairment; (4) had the RFC for a limited range of light work; (5) was not fully
credible regarding the intensity, persistence and limiting effects of his symptoms; (6)
was unable to perform his past relevant work; but (7) considering his age, education,
work experience and RFC, and based on the testimony of the vocational expert, was
able to perform other jobs that exist in significant numbers in the national economy.
Thus, the ALJ concluded that Plaintiff was not disabled.
The Appeals Council denied Plaintiff’s request for review of the ALJ’s
decision, thereby making it the final decision of the Commissioner. (Tr. 1-5.)
Plaintiff then appealed the denial of benefits to this Court (docket entry #2).
Plaintiff argues that the ALJ erred: (1) in finding that Plaintiff retained the
physical RFC to perform light work; and (2) in disregarding the opinions of a
consulting psychologist in determining Plaintiff’s mental RFC. For the reasons
discussed below, the Court concludes that Plaintiff’s first claim warrants remand.
Physical RFC Determination.
RFC is defined as "the most [the claimant] can still do" in a work setting "on
a regular and continuing basis" despite his limitations. 20 C.F.R. §§ 404.1545(a)(1),
(b) & (c), 416.945(a)(1), (b) & (c). The ALJ bears the primary responsibility for
assessing a claimant's RFC at step four of the sequential evaluation and, “because
RFC is a medical question, some medical evidence must support the determination of
the claimant’s RFC.” Martise v. Astrue, 641 F.3d 909, 923 (8th Cir. 2011).
Here, the ALJ determined that Plaintiff had the physical RFC for a limited
range of light work, i.e., the ability: to lift, carry, push and pull twenty pounds
occasionally and ten pounds frequently; to sit for six of eight hours; to stand and/or
walk for six of eight hours; to frequently climb ramps and/or stairs; to occasionally
bend, stoop, kneel, crouch and crawl; but to never climb ladders, ropes, or scaffolding.
Plaintiff argues that the record does not contain sufficient medical evidence: (1)
that he was physically able to do light work on a full-time, “day-in, day-out” basis;
and (2) that he was able to perform work requiring standing or walking for six hours
in an eight-hour workday.
Plaintiff’s medical records show that he injured his back at work in September
2007 and again in June 2008. In treatment notes dated January 3, 2008, W. Michael
Roberts, M.D., with Pain Management Center, described Plaintiff’s MRI as showing
an anular tear at L4-5, a disc bulge at L5-S1, and “some degree of degenerative disc
disease.” (Tr. 315.)1 Later radiology reports in June and August 2008 revealed “an
equivocal bulge” at T10-11, but no other abnormalities. (Tr. 245, 319, 328.) On
September 23, 2008, Michael Mayron, M.D., a neurologist, examined Plaintiff,
observed that his MRI scan was “unremarkable,” and diagnosed left piriformis
syndrome2 and right sacroilitis.3 (Tr. 264-66.)
Throughout 2008, Plaintiff sought treatment for his lower back pain from
various physicians, including Mahendra Sanapati, M.D., with Advanced Pain Care
The MRI report itself is not in the record.
This is a neuromuscular disorder that occurs when the sciatic nerve is compressed
or irritated by the piriformis muscle, which is a narrow muscle located in the buttocks.
Piriformis Syndrome, National Institute of Neurological Disorders and Stroke, http://
www.ninds.nih.gov/disorders/piriformis_syndrome/piriformis_ syndrome.htm (last
updated Feb. 14, 2007).
This is an inflammation of the sacroiliac joints, which connect the lower spine and
pelvis. Sacroilitis, Mayo Clinic, http://www.mayoclinic.com/health/sacroilitis/DS00726
(last updated July 15, 2010).
Clinic. In early 2009, Dr. Sanapati diagnosed degenerative disc disease of the lumbar
spine and observed that, despite conservative therapy through medication and
injections, Plaintiff continued to experience “intractable” low back pain and left lower
extremity pain. (Tr. 326-29.) On January 6, 2009, Dr. Sanapati surgically inserted a
trial spinal cord stimulator. (Tr. 337.) Plaintiff reported 60% to 70% improvement
in pain relief and function, saying he was sleeping better and walking better. (Tr. 328,
336.) Due to these significant results, Dr. Sanapati surgically implanted a dual spinal
cord stimulator on February 4, 2009. (Tr. 326-29.)
Although Plaintiff initially experienced improvement (Tr. 335), he reported on
May 1, 2009, that “things are still rough,” his pain was still severe on some days, and
it hurt to walk. His lumbar spine was tender to palpation. The stimulator was
reprogrammed, and his medications were refilled for Lortab (a narcotic pain reliever),
Lyrica and Zocor. (Tr. 385.)
On May 8, 2009, a state agency medical consultant, Diosdado Irlandez, M.D.,
reviewed Plaintiff’s medical records and completed a physical RFC assessment. (Tr.
354-61.) In that assessment, Dr. Irlandez concluded that Plaintiff had the RFC to
perform the exertional requirements of medium-level work, including the ability to
stand and/or walk up to six hours in an eight-hour workday. (Tr. 355.) As the basis
for his conclusions, he noted a January 3, 2009, treatment note where Plaintiff
reported the stimulator was “working well.”4
On June 10, 2009, Plaintiff returned to see Dr. Sanapati at the pain clinic. He
requested an increase in his Duragesic, which is a skin patch containing a narcotic
pain medicine. He said his pain was “worse while standing and walking.” (Tr. 384.)
At his next visit on July 29, he said he had gone to the emergency room the previous
night and was given an injection. At the clinic, Plaintiff reported that his pain was
worsening and was “shooting down” his legs, and that his stimulator was “not helpful
right now.” Dr. Sanapati observed that Plaintiff’s range of motion was “severely
limited.” He prescribed Percocet (a narcotic pain reliever) and a Decadron injection.
(Tr. 383.) On July 31, it was noted that a CT scan had been within normal limits and
that Plaintiff was “doing much better.” (Tr. 382.)
On August 18, he returned to the pain clinic. He was still taking Percocet,
Lyrica and Naproxen, and was using a Duragesic patch. He said the pain medication
was helpful at night and the stimulator was “somewhat helpful.” His lumbar spine was
noted to be tender. (Tr. 381.)
On October 23, Plaintiff returned to the pain clinic, reported that the stimulator
Dr. Irlandez also stated he had reviewed and was affirming a prior RFC
assessment by a disability examiner. (Tr. 355.) The examiner (who is not designated as a
physician) indicated he was relying on “normal” x-rays in June and August 2008, and
exam notes from September 23, 2008, which showed “no muscle weakness, back straight,
no kyphosis or scoliosis.” (Tr. 296, 302.)
was helpful, and was taking Percocet and Oxycontin (both narcotic pain medications),
as well as Lyrica, Flexeril and Naproxen. His spine was tender to palpation. (Tr.
388.) On November 17, it was noted that he was “doing better” with the current pain
medication and the stimulator. The clinic notes indicate that he was moving from
Kentucky to Arkansas. (Tr. 387.)
On February 5, 2010, he went to Community Medical Clinic as a new patient,
reporting that he previously had been receiving pain management care in Kentucky.
He was prescribed hydrocodone. (Tr. 394-95.) On March 4, Randal Bowlin, M.D.,
examined Plaintiff, noting that his discomfort was most prominent in the lumbar spine
and radiated to his buttocks, thighs and calves. Plaintiff described his pain as
“constant and severe.” Dr. Bowlin noted that Plaintiff “appears in pain” and
prescribed Oxycontin and Percocet. (Tr. 390-91.)
On March 24, 2010, Plaintiff returned to Dr. Sanapati in Kentucky, reporting
that he was having a hard time finding a pain doctor in Arkansas. Dr. Sanapati
observed that Plaintiff’s lower lumbar spine was tender, and he continued pain
medications for three months (Percocet, Oxycontin and Lyrica). (Tr. 400.)
At a visit to Community Medical Clinic on April 27, Plaintiff continued to
complain of chronic back pain and his prescriptions were refilled. (Tr. 407-08.) On
May 27, he reported that he had “not been doing well,” had “bad leg pain,” and had
swelling in his knee and ankle joints. He said the pain was “unbearable” at times and
hindered his ability to walk. A nurse practitioner noted that Plaintiff was anxious,
seemed to be in moderate pain, and had a “slowed” gait. (Tr. 404-06.) On May 28,
2010, a wheelchair was ordered for Plaintiff due to “leg weakness.” (Tr. 410.)
The record does not contain a functional assessment of Plaintiff’s physical
abilities by any of his examining or treating physicians. The ALJ did not request that
Plaintiff be examined by a consulting specialist. The only physician who has
addressed Plaintiff’s specific functional abilities was the state agency medical
consultant, Dr. Irlandez, who did not examine Plaintiff. In his decision, the ALJ stated
he was assigning “reduced weight” to the agency opinion that Plaintiff could perform
medium-level work because “more recent evidence confirms that despite the fact the
claimant has a stimulator implanted, he has had some difficulty getting it properly
adjusted.” The ALJ further stated that, by Plaintiff’s own admission, his symptoms
had improved with adjustments to the stimulator and that his RFC assessment
accounted for Plaintiff’s residual symptoms. (Tr. 19.)
While the ALJ assessed an RFC with the lesser lifting/carrying exertional
requirements of light work,5 he nevertheless adopted Dr. Irlandez’s finding that
Cf. 20 C.F.R. §§ 404.1567(b), 416.967(b) (light work involves lifting/carrying up
to 20 pounds at a time with frequent lifting/carrying up to 10 pounds); with id. §§
404.1567(c), 416.967(c) (medium work involves lifting/carrying up to 50 pounds at a
Plaintiff was able to stand/walk for six hours out of an eight-hour day. (Tr. 15.) The
record does not contain sufficient medical evidence to support this finding.
The “opinions of non-examining sources are generally ... given less weight than
those of examining sources." Willcockson v. Astrue, 540 F.3d 878, 880 (8th Cir.
2008); see 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1). The regulations also provide
that, when evaluating a non-examining source's opinions, the ALJ must consider the
“supporting explanations” provided by the source and “the degree to which these
opinions consider all of the pertinent evidence,” including “opinions of treating and
other examining sources.” 20 C.F.R. §§ 404.1527(d)(3) & (f)(2)(ii), 416.927(d)(3)
The medical records – and Plaintiff’s own testimony – confirm that insertion
of the spinal cord stimulator in January 2009 did alleviate his pain to some extent and
that, at least in the first month or two, reprogramming the stimulator would afford him
additional relief. However, Dr. Irlandez did not have before him the more recent
evidence from Plaintiff’s treating and examining medical providers, which shows: (1)
Plaintiff’s report in May 2009 that, while the stimulator helped at first, he was still
experiencing severe pain some days and it hurt to walk; (2) his treating physicians’
observations in May, August and October 2009, and in March 2010, that the lumbar
time with frequent lifting/carrying up to 25 pounds).
spine was tender to palpation; (3) his report in June 2009 that his pain was worse
while standing and walking; (4) his treating physician’s observation in July 2009 that
Plaintiff’s range of motion was “severely” limited; (5) Plaintiff’s report in July 2009
that the stimulator was “not helpful” to relieve pain that was shooting down his legs;
(6) his description of “constant and severe” pain in March 2010, and the examining
physician’s observation that he appeared to be in pain; (7) his report in May 2010 that
he was “not doing well” and had “bad leg pain” which was unbearable at times and
hindered his ability to walk; (8) a nurse practitioner’s observation in May 2010 that
he seemed to be in moderate pain and had a slowed gait; and (9) the ordering of a
wheelchair by a medical provider due to “leg weakness” on May 28, 2010.
Significantly, the medical records document that, from June 2008 through May 2010,
Plaintiff’s treating physicians continuously prescribed narcotic pain medication in
response to his complaints of pain.
Thus, the only medical evidence supporting the ALJ’s standing/walking RFC
finding is Dr. Irlandez’s conclusion, which was based on an incomplete medical
record. This falls short of the required medical evidence necessary to support an
In making his physical RFC assessment, the ALJ also relied on Plaintiff’s
testimony that he was able to “drive, prepare microwave meals, fold laundry, wash
dishes, attend to his personal needs, ... engage in other simple type activities such as
watching television,” and enjoy “limited fishing, and deer hunting.” (Tr. 18, 19-20.)
However, this testimony does not support a finding that Plaintiff was able to stand or
walk for six hours a day. Plaintiff reported that, although he washed dishes, it “hurts
to stand up over the sink” and he had to “stop in [the] middle of them and sit down”
for a half-hour or so, then go back and finish the dishes later. (Tr. 58, 193, 202.)
Plaintiff and his wife reported that he “used to be an avid deer hunter, but not so much
anymore,” had last hunted in 2008 but could no longer climb a tree to hunt, and “every
now and then” tried “to sit and do a little fishing.” (Tr. 58, 195, 204).
In an April 2009 function report – completed three months after insertion of the
spinal stimulator – Plaintiff said he could walk for “maybe fifteen minutes” before
needing to stop and rest. (Tr. 205.) At the hearing in September 2009, he testified
that the stimulator had improved his walking so that he went from “not being able to
hardly stand on my legs” to walking about twenty minutes at a time. (Tr. 46.) He said
the pain before the stimulator was “excruciating,” and at the time of the hearing still
was “a constant throb,” with “stabbing” pain two or three weeks out of the month.
(Tr. 46-47.) He said his pain traveled from his lower back up the center of his spine
to about his shoulder blades, and from the top of his buttocks and hips down the back
of his legs. He said his pain was made worse by “standing too long or walking too
long, or sitting too long or laying too long.” (Tr. 48.) He said he could stand or walk
for about twenty to thirty minutes at a time, and sit about twenty to thirty minutes.
(Tr. 51-52, 74.) He said that, during the day, he constantly had to alternate positions
between standing, walking around, sitting in a chair, or lying down. (Tr. 74, 200.)
Thus, as a whole, the record does not support the ALJ’s determination that
Plaintiff was capable of standing/walking up to six hours in an eight-hour day. This
case must be remanded so that the ALJ can identify or, if necessary, obtain specific
medical evidence to support a finding that Plaintiff is capable of performing the
standing/walking requirements for light work. See SSR 83-10, 1983 WL 31251,
*5-*6 (1983) (light work generally requires “a good deal of walking or standing,” and
the full range of such work requires “standing or walking, off and on,” a total of six
hours in an eight-hour workday, with sitting “occur[ring] intermittently during the
remaining time”). If necessary, the ALJ should reformulate his RFC assessment based
on the medical evidence. Because Plaintiff’s ability to stand/walk for extended
periods of time could also affect his ability to perform light work on “a regular and
continuing basis,” the ALJ should make any necessary adjustments in his RFC
assessment and discussion to ensure that this matter is adequately addressed.
Mental RFC Determination.
The ALJ found that Plaintiff had the mental RFC: to understand and recall
simple work procedures and instructions; to maintain attention for two-hour periods
across a normal workday; to complete routine mental aspects of making work-related
decisions without special supervision following a routine schedule; to tolerate coworkers and accept supervision in an object-focused context with infrequent and
casual contacts; and to adapt to gradual change and appreciate work hazards on the
job. (Tr. 15.)
Plaintiff asserts that, in formulating this RFC, the ALJ erred in attributing
greater weight to the opinions of the state agency reviewers than to the opinion of
Jennifer Fishkoff, Psy. D., who performed a consultative mental evaluation of Plaintiff
on January 8, 2009. Plaintiff points to Dr. Fishkoff’s opinion that he did “not appear
to be capable of tolerating the stress and pressures associated with day-to-day work
activity,” and to her assessment of a current GAF (Global Assessment of Functioning)
of 45, indicating serious limitations. (Tr. 274.)6
The ALJ is entitled to discount the opinion, in whole or in part, of a one-time
The GAF is a numeric scale ranging from zero to one hundred used to rate social,
occupational and psychological functioning “on a hypothetical continuum of mental
health-illness.” Pate-Fires v. Astrue, 564 F.3d 935, 937 n.1 (8th Cir. 2009). A GAF
score reflects a clinician’s assessment of an individual’s overall level of functioning at the
time of the evaluation, and is intended for use in planning treatment and measuring its
impact. See American Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental
Disorders 32-33 (4th ed., Text Rev. 2000) (DSM-IV-TR). A GAF of 41 to 50 indicates
the individual has “[s]erious symptoms ... or any serious impairment in social,
occupational, or school functioning. DSM-IV-TR at 34.
examining medical source, particularly when it is inconsistent with other evidence in
the record. See Vandenboom v. Barnhart, 421 F.3d 745, 749-50 (8th Cir. 2005);
Hilkemeyer v. Barnhart, 380 F.3d 441, 446 (8th Cir. 2004) (ALJ was justified in
rejecting opinion of source who conducted single mental examination); 20 C.F.R. §§
404.1527(d)(2), 416.927(d)(2) (factors to evaluate in determining weight given to
medical opinions, including "frequency of examination" and "consistency").
The ALJ discussed Dr. Fishkoff’s findings in detail. (Tr. 18-19.) While he
credited some of her findings, he explicitly discounted her conclusion that Plaintiff
appeared unable to handle stress and her GAF assessment of serious limitations in
functioning. (Tr. 19.) The record contains substantial evidence to support the ALJ’s
decision in this regard.
First, Plaintiff did not allege inability to handle stress, depression, or any other
mental impairment or limitations, as a basis for disability in the initial disability report
he completed in connection with his application. (Tr. 160.) When asked at the
administrative hearing to identify the conditions that limited his ability to work, he
referred only to physical problems (Tr. 43-44), and he described his depressive
symptoms only when asked about them by the ALJ (Tr. 53-55). This weighs against
a finding of significant limitation due to a mental impairment. See Partee v. Astrue,
638 F.3d 860, 864 (8th Cir. 2011); Dunahoo v. Apfel, 241 F.3d 1033, 1039 (8th Cir.
2001) (failure to allege depression in benefits application is significant, even if
evidence later developed).
Second, as discussed by the ALJ (Tr. 18-19), the records from Plaintiff’s
medical providers contain very few references to mental health problems. The first
is on October 9, 2008, when he went to River Valley Behavioral Health. He
complained of difficulty sleeping and general tiredness, impulsiveness and anger
control issues, and problems with “distractability and focus.” He reported that he had
been treated for mental health problems before, which helped his tiredness but not his
depression. (Tr. 251.) The psychological examiner did not provide a diagnosis, but
noted that Plaintiff’s participation was “active” and “appropriate,” his insight was
“forming,” his affect was “appropriate,” he was cognitively “oriented,” and his
progress was “stable.” (Tr. 256-58.) Plaintiff did not seek any follow-up treatment
at the clinic.7
The next reference was on December 26, 2008, when Plaintiff told Dr. Debra
Wallace, his primary care physician, that he “thinks he is depressed because he can’t
work.” (Tr. 320.) Dr. Wallace stated that she thought he had “some depression” and
that “part of it may be situational.” She prescribed Paxil, an antidepressant.
The ALJ incorrectly stated that Plaintiff “cancelled his follow-up appointment.”
(Tr. 18.) The cancellation was for a prior appointment on September 22, 2008. (Tr. 259.)
Subsequent treatment notes show that, while seeking medical treatment for his
physical problems, he reported Paxil as one of his medications on five occasions from
December 2008 to June 2009. (Tr. 328, 335, 336, 338, 384.) No other medical
records mention mental limitations or related medication. See Partee, 638 F.3d at 864
(lack of relevant medical evidence is factor to consider in determining whether
claimant suffered from debilitating mental impairment); Dunahoo, 241 F.3d at 103940 (depression did not result in significant functional limitations where claimant was
admitted to mental health center but did not follow up, doctors continued
antidepressant medication, and symptoms were situational).
Third, as noted by the ALJ (Tr. 19), Dr. Fishkoff’s lone GAF assessment and
her finding regarding Plaintiff’s inability to handle stress were inconsistent with
Plaintiff’s testimony that he was able to remain functional by preparing simple meals,
shopping with his wife, driving, handling the checkbook and savings account, making
change, visiting with family and friends, enjoying limited fishing and hunting, folding
laundry, and washing a few dishes. The ALJ properly found that these admitted
activities showed Plaintiff was capable of performing simple types of tasks on a daily
basis. See Brown v. Astrue, 611 F.3d 941, 955-56 (8th Cir. 2010) (daily activities
were inconsistent with allegation of disabling mental impairment).
Finally, Dr. Fishkoff’s assessment of serious functional limitations and an
inability to handle work stresses was inconsistent with the opinions of the state agency
psychological consultants, Ed Ross, Ph.D., and Alex Guerrero, M.D., who reviewed
Plaintiff’s medical records and prepared mental RFC assessment forms. (Tr. 276-93,
363-80.) The ALJ assigned “great weight” to the state agency opinions. (Tr. 19.) In
their assessments, Drs. Ross and Guerrero found that, out of twenty specified mental
activities, Plaintiff was “not significantly limited” in sixteen categories and had
“moderate” limitations in four.8 (Tr. 276-77, 363-64.)
Dr. Ross wrote almost a full page elaborating on his conclusions,9 discussing:
the sparse evidence of mental health treatment or mental difficulties; Plaintiff’s
subjective allegations; and the findings and opinions of the “Psy CE Vendor” (Dr.
Fishkoff). (Tr. 278.) He gave Dr. Fishkoff’s opinions “little weight,” noting that
Plaintiff and his spouse were vague when questioned by Dr. Fishkoff about their daily
activities, Plaintiff had been able to “get his deer this season” and retained interest in
such outdoor activities, and Plaintiff indicated that the sun set “in the sky” when
The doctors found that Plaintiff was moderately limited in his ability: (1) to
maintain attention and concentration for extended periods; (2) to perform activities within
a schedule, maintain regular attendance, and be punctual within customary tolerance; (3)
to interact appropriately with the general public; and (4) to carry out detailed instructions.
There is no category on the form specifically addressing the ability to deal with workrelated stress.
This is in contrast to the state agency physical RFC assessment forms, which
contained minimal elaboration as discussed above.
questioned about the direction of the sun setting. Dr. Ross concluded that, “[o]n
balance, the mental residuals and [Plaintiff’s] history would not be incompatible with
some [substantial gainful activity] settings.” He then described specific mental skills
which Plaintiff retained the ability to perform: (1) understanding and recalling simple
and some detailed work procedures and instructions, and maintaining attention for
two-hour periods across a normal workday; (2) completing routine mental aspects and
making associated work-related decisions, without special supervision, following a
regular schedule; (3) tolerating co-workers and accepting supervision in an objectfocused context with infrequent and casual contacts; and (4) adapting to gradual
change and appreciating work hazards on the job. (Tr. 278.) Dr. Guerrero affirmed
Dr. Ross’s opinions. (Tr. 365.)
In his decision, the ALJ formulated a mental RFC assessment that mirrored Dr.
Ross’s four conclusions regarding Plaintiff’s mental skills, yet further limited him to
the ability to understand and recall only “simple” procedures and instructions. (Tr.
15.) Thus, it is clear that, in making his mental RFC determination, the ALJ
considered the medical and non-medical evidence, credited the evidence and
allegations of mental limitations to some degree, and factored those limitations into
his assessment. The record as a whole contains substantial evidence to support the
ALJ’s mental RFC determination, including his decision to discount Dr. Fishkoff’s
GAF assessment and her opinion that Plaintiff appeared incapable of dealing with
For the foregoing reasons, the Commissioner’s decision is reversed and
remanded so that the ALJ can consider and identify the necessary medical evidence
to support his physical RFC determination.
IT IS THEREFORE ORDERED THAT the Commissioner's decision is
reversed and this matter is remanded to the Commissioner for further proceedings
consistent with this opinion. This is a "sentence four" remand within the meaning of
42 U.S.C. § 405(g) and Melkonyan v. Sullivan, 501 U.S. 89 (1991).
DATED this 7th day of November, 2011.
UNITED STATES MAGISTRATE JUDGE
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