Stout v. Commissioner of Social Security

Filing 18

MEMORANDUM Opinion and Order reversing Commissioners decision and remanding this matter for further proceedings. Judgment shall enter against Defendant Commissioner of Social Security and in favor of Plaintiff Majorie J Stout. Signed by Judge Leonard T Strand on 8/19/2016. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
MAJORIE J. STOUT,
Plaintiff,

No. C14-3037-LTS

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

MEMORANDUM
OPINION AND ORDER

Defendant.
___________________________
Plaintiff Marjorie J. Stout seeks judicial review of a final decision of the
Commissioner of Social Security (Commissioner) denying her application for disability
insurance benefits (DIB) under Title II of the Social Security Act, 42 U.S.C. § 401 et
seq. (Act).

Stout argues that the administrative record (AR) does not contain

substantial evidence to support the Commissioner’s decision that she was not disabled
during the relevant period of time.

For the reasons discussed herein, the

Commissioner’s decision will be reversed and this case will be remanded for further
proceedings.
I.

FACTUAL AND PROCEDURAL BACKGROUND

Stout was born in 1960 and was 50 years old on the date last insured. She has a
high school education and a limited work history, including jobs as a cashier, factory
worker, nursing home cook and cleaner. She is married, with adult children and two
grandchildren. Stout’s impairments include degenerative disc disease of the lumbar
spine with radiculopathy to the left leg, status post multiple surgeries.
Stout filed her application for DIB on June 14, 2011, alleging an onset date of on
June 22, 2010. After her claim was denied initially and on reconsideration,

Administrative Law Judge (ALJ) Troy Silva conducted a hearing on January 7, 2013.
The ALJ denied Stout’s claim on January 25, 2013. Stout submitted a timely request
review by the Appeals Council, which was denied on May 5, 2014.
Stout then filed a timely complaint (Doc. No. 3) in this court, seeking review of
the Commissioner’s decision. This case was assigned to Senior United States District
Judge Donald E. O’Brien.

On February 25, 2015, after this case had been fully

briefed, Judge O’Brien held a hearing by telephone and took this matter under
advisement. Unfortunately, Judge O’Brien passed away before issuing a ruling. This
case was later reassigned to me after my appointment as a United States District Judge.
During the ALJ’s hearing, Stout testified that she stopped working because of
her sciatic nerve pain and that she has poor memory because of her medication. AR
43-44. She stated that she has lingering numbness in her foot, even after surgery, and
only gets by due to the use of opioid pain medication such as morphine and Vicodin.
Id. She testified that her lingering pain was at a level of three point five to four on a
ten point scale. AR 48.
Stout testified that many activities, such as housework, cause her to have “flareups,” meaning episodes of pain through her lower back. AR 46. She stated that when
she has a “flare-up,” she has to rest and put her feet up. Id. However, she regularly
watches her two grandchildren on a full-time basis, five days a week. Id.
II.

DISABILITY DETERMINATIONS AND THE BURDEN OF PROOF

A disability is defined as “the inability to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), accord
1382c(a)(3)(A); 20 C.F.R. § 404.1505. A claimant has a disability when, due to his
physical or mental impairments, the claimant “is not only unable to do his previous
work but cannot, considering his age, education, and work experience, engage in any
2

other kind of substantial gainful work which exists . . . in significant numbers either in
the region where such individual lives or in several regions of the country.” 42 U.S.C.
§§ 423(d)(2)(A), 1382c(a)(3)(B). If the claimant is able to do work which exists in the
national economy but is unemployed because of inability to get work, lack of
opportunities in the local area, economic conditions, employer hiring practices or other
factors, the ALJ will still find the claimant not disabled. 20 C.F.R. § 404.1566(c)(1)(8).
To determine whether a claimant has a disability within the meaning of the Act,
the Commissioner follows the five-step sequential evaluation process outlined in the
regulations. Id. § 404.1520; see Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007).
First, the Commissioner will consider a claimant’s work activity. If the claimant is
engaged in substantial gainful activity (SGA), then the claimant is not disabled. 20
C.F.R. § 404.1520(a)(4)(i). “Substantial” work activity involves physical or mental
activities. “Gainful” activity is work done for pay or profit. 20 C.F.R. § 404.1572(a).
Second, if the claimant is not engaged in SGA, the Commissioner looks to see
“whether the claimant has a severe impairment that significantly limits the claimant’s
physical or mental ability to perform basic work activities.” Dixon v. Barnhart, 353
F.3d 602, 605 (8th Cir. 2003). “An impairment is not severe if it amounts only to a
slight abnormality that would not significantly limit the claimant’s physical or mental
ability to do basic work activities.”

Kirby, 500 F.3d at 707; see 20 C.F.R. §§

404.1520(c), 404.1521(a).
The ability to do basic work activities is defined as having “the abilities and
aptitudes necessary to do most jobs.” 20 C.F.R. § 404.1521(b). These abilities and
aptitudes include (1) physical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying or handling; (2) capacities for seeing, hearing and
speaking; (3) understanding, carrying out and remembering simple instructions; (4) use
of judgment; (5) responding appropriately to supervision, co-workers and usual work
situations; and (6) dealing with changes in a routine work setting.
3

Id. §

404.1521(b)(1)(6); see Bowen v. Yuckert, 482 U.S. 137, 141 (1987). “The sequential
evaluation process may be terminated at Step Two only when the claimant’s impairment
or combination of impairments would have no more than a minimal impact on her
ability to work.”

Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (internal

quotation marks omitted).
Third, if the claimant has a severe impairment, then the Commissioner will
determine its medical severity.

If the impairment meets or equals one of the

presumptively disabling impairments listed in the regulations, then the claimant is
considered disabled regardless of age, education and work experience. 20 C.F.R. §§
404.1520(a)(4)(iii), 404.1520(d); see Kelley v. Callahan, 133 F.3d 583, 588 (8th Cir.
1998).
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one
of the presumptively disabling impairments, then the Commissioner will assess the
claimant’s residual functional capacity (RFC) and the demands of her past relevant
work.

If the claimant cannot do her past relevant work, then she is considered

disabled. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1545(a)(4). Past relevant work is any
work the claimant has done in the 15 years prior to their application, that was
substantial gainful activity and lasted long enough for the claimant to learn how to do it.
Id. § 404.1560(b)(1). “RFC is a medical question defined wholly in terms of the
claimant’s physical ability to perform exertional tasks or, in other words, what the
claimant can still do despite his or her physical or mental limitations.”

Lewis v.

Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (internal quotation marks omitted); see 20
C.F.R. § 404.1545(a)(1). The claimant is responsible for providing the evidence the
Commissioner will use to determine claimant’s RFC, but the Commissioner is
responsible for developing the claimant’s “complete medical history, including
arranging for a consultative examination(s) if necessary, and making every reasonable
effort to help [the claimant] get medical reports from [the claimant’s] own medical
sources.” 20 C.F.R. § 404.1545(a)(3). The Commissioner also will consider certain
4

non-medical evidence and other evidence listed in the regulations. Id. If a claimant
retains enough RFC to perform past relevant work, then the claimant is not disabled.
Id. § 404.1520(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in Step Four will not allow the
claimant to perform past relevant work, then the burden shifts to the Commissioner to
show that there is other work that the claimant can do, given the claimant’s RFC as
determined at Step Four, and his or her age, education, and work experience. See
Bladow v. Apfel, 205 F.3d 356, 358-59 n.5 (8th Cir. 2000). The Commissioner must
show not only that the claimant’s RFC will allow him to make the adjustment to other
work, but also that other work exists in significant numbers in the national economy.
Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20 C.F.R. §
404.1520(a)(4)(v). If the claimant can make the adjustment, then the Commissioner
will find the claimant is not disabled. 20 C.F.R. § 404.1520(a)(4)(v). At Step Five,
the Commissioner has the responsibility of developing the claimant’s complete medical
history before making a determination about the existence of a disability.
404.145(a)(3).

Id. §

The burden of persuasion to prove disability remains on the claimant.

Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
If after these five steps the ALJ has determined the claimant is disabled, but
there is medical evidence of substance use disorders, the ALJ must decide if that
substance use is a contributing factor material to the determination of disability. 42
U.S.C. §§ 423(d)(2)(C). The ALJ must then evaluate the extent of the claimant’s
limitations without the substance use. Id. If the limitations would not be disabling,
then the disorder is a contributing factor material to determining disability and the
claimant is not disabled. 20 C.F.R. § 404.1535.
III.

THE ALJ’S FINDINGS

The ALJ made the following findings:
5

(1)

The claimant last met the insured status requirements
of the Social Security Act on September 30, 2011.

(2)

The claimant did not engage in substantial gainful
activity during the period from her alleged onset date
of June 22, 2010 through her date last insured of
September 30, 2011.

(3)

Through the date last insured, the claimant had the
following severe impairment: degenerative disc
disease of the lumbar spine with radiculopathy status
post multiple surgeries (20 C.F.R. § 404.1520(c)).

(4)

Through the date last insured, the claimant did not
have an impairment or combination of impairments
that met or medically equaled the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart
P, Appendix 1 (20 C.F.R. §§§ 404.1520(d),
404.1525 and 404.1526).

(5)

Through the date last insured, the claimant had the
residual functional capacity to perform light work as
defined in 20 C.F.R. § 404.1567(b) except she can
lift and carry 20 pounds occasionally and 10 pounds
frequently; she can stand and/or walk for 6 hours in
an 8-hour workday; she can sit for 6 hours in an 8hour workday; she can occasionally climb ramps and
stairs; she cannot climb ladders, ropes, or scaffolds;
she can occasionally bend, crouch, and crawl; and
she cannot work in direct sunlight.

(6)

Through the date last insured, the claimant was
unable to perform any past relevant work (20 C.F.R.
§ 404.1565).

(7)

The claimant was born on November 19, 1960 and
was 50 years old, which is defined as a younger
individual age 18-49, on the date last insured. The
claimant subsequently changed age category to close
approaching advanced age (20 CFR 404.1563).

(8)

The claimant has at least a high school education and
is able to communicate in English (20 C.F.R. §
404.1564).
6

(9)

Transferability of job skills is not material to the
determination of disability because using the MedicalVocational Rules as a framework supports a finding
that the claimant is “not disabled,” whether or not the
claimant has transferable job skills (See SSR 82-41
and 20 CFR Part 404, Subpart P, Appendix 2).

(10)

Through the date last insured, considering the
claimant’s age, education, work experience, and
residual functional capacity, there were jobs that
existed in significant numbers in the national
economy that the claimant could have performed (20
CFR 404.1569 and 404.1569(a)).

(11)

The claimant was not under a disability, as defined in
the Social Security Act, at any time from June 22,
2010, the alleged onset date, through September 30,
2011, the date last insured (20 CFR 404.1520(g).

AR 23-32.
IV.

THE SUBSTANTIAL EVIDENCE STANDARD

The Commissioner’s decision must be affirmed “if it is supported by substantial
evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577 (8th Cir.
2006); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security
as to any fact, if supported by substantial evidence, shall be conclusive . . . .”).
“Substantial evidence is less than a preponderance, but enough that a reasonable mind
might accept as adequate to support a conclusion.” Lewis, 353 F.3d at 645. The
Eighth Circuit Court of Appeals explains the standard as “something less than the
weight of the evidence and [that] allows for the possibility of drawing two inconsistent
conclusions, thus it embodies a zone of choice within which the [Commissioner] may
decide to grant or deny benefits without being subject to reversal on appeal.”
Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994).
In determining whether the Commissioner’s decision meets this standard, the
court considers “all of the evidence that was before the ALJ, but it [does] not re-weigh
7

the evidence.” Wester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The court
considers both evidence that supports the Commissioner’s decision and evidence that
detracts from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010). The court
must “search the record for evidence contradicting the [Commissioner’s] decision and
give that evidence appropriate weight when determining whether the overall evidence in
support is substantial.” Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003) (citing
Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
In evaluating the evidence in an appeal of a denial of benefits, the court must
apply a balancing test to assess any contradictory evidence. Sobania v. Sec’y of Health
& Human Servs., 879 F.2d 441, 444 (8th Cir. 1989). The court, however, does not
“reweigh the evidence presented to the ALJ,” Baldwin, 349 F.3d at 555 (citing Bates v.
Chater, 54 F.3d 529, 532 (8th Cir. 1995)). Nor does the court “review the factual
record de novo.” Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (citing Naber v.
Shalala, 22 F.3d 186, 188 (8th Cir. 1994)). Instead, if, after reviewing the evidence,
the court finds it “possible to draw two inconsistent positions from the evidence and
one of those positions represents the Commissioner’s findings, [the court] must affirm
the [Commissioner’s] denial of benefits.” Kluesner, 607 F.3d at 536 (quoting Finch v.
Astrue, 547 F.3d 933, 935 (8th Cir. 2008)). This is true even in cases where the court
“might have weighed the evidence differently.” Culbertson, 30 F.3d at 939 (quoting
Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992)). The court may not reverse
the Commissioner’s decision “merely because substantial evidence would have
supported an opposite decision.” Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir.
1984); see Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005) (“[A]n administrative
decision is not subject to reversal simply because some evidence may support the
opposite conclusion.”).

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V.

DISCUSSION

Stout contends that the ALJ’s decision is not supported by substantial evidence
because: (a) the ALJ failed to fairly develop the record regarding Stout’s post-surgical
limitations; (b) the ALJ improperly relied on the opinion of the agency experts; (c) the
ALJ improperly relied on Dr. Buchanan’s opinion; and (d) the ALJ improperly
discounted Stout’s subjective complaints.
A.

Development of the Record
1.

Applicable Standards
a.

Duty to Develop

“In deciding whether a claimant is disabled, the ALJ considers medical opinions
along with ‘the rest of the relevant evidence’ in the record.” Wagner v. Astrue, 499
F.3d 842, 848 (8th Cir. 2007) (quoting 20 C.F.R. § 404.1527(b)). “Medical opinions”
are defined as “statements from physicians and psychologists or other acceptable
medical sources that reflect judgments about the nature and severity of your
impairment(s), including your symptoms, diagnosis and prognosis, what you can still
do despite impairment(s), and your physical or mental restrictions.”
416.927(a)(2).

20 C.F.R. §

Other relevant evidence includes medical records, observations of

treating physicians and others, and an individual’s own description of his limitations.
McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000). “Unless a treating source’s
opinion is given controlling weight, the administrative law judge must explain in the
decision the weight given to the opinions of a state agency medical . . . consultant.” 20
C.F.R. § 416.927(e)(2)(ii).
In determining the severe impairments and crafting an RFC, the ALJ has a duty
to develop the record fully and fairly, independent of the claimant’s burden to press her
case.

Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010); see also Snead v.

Barnhart, 360 F.3d 834, 838 (8th Cir. 2004). A social security hearing is a non9

adversarial proceeding, and the ALJ must develop the record so that “deserving
claimants who apply for benefits receive justice.” Battles v. Shalala, 36 F.3d 43, 44
(8th Cir. 1994).

“[A]n ALJ is permitted to issue a decision without obtaining

additional medical evidence so long as other evidence in the record provides a sufficient
basis for the ALJ’s decision.” Naber v. Shalala, 22 F.3d 186, 189 (8th Cir. 1994).
An ALJ “is not obliged ‘to investigate a claim not presented at the time of the
application for benefits and not offered at the hearing as a basis for disability.’” Gregg
v. Barnhart, 354 F.3d 710, 713 (8th Cir. 2003) (quoting Pena v. Chater, 76 F.3d 906,
909 (8th Cir. 1996)). “[R]eversal due to failure to develop the record is only warranted
where such failure is unfair or prejudicial.” Haley v. Massanari, 258 F.3d 742, 750
(8th Cir. 2001). “There is no bright line rule indicating when the Commissioner has or
has not adequately developed the record; rather, such an assessment is made on a caseby-case basis.” Mouser v. Astrue, 545 F.3d 634, 639 (8th Cir. 2008) (citation omitted).
The obligation to obtain additional medical evidence comes from the ALJ’s duty
to develop the record. See Snead, 360 F.3d at 838 (“Well-settled precedent confirms
that the ALJ bears a responsibility to develop the record fairly and fully, independent of
the claimant’s burden to press his case.”). “The ALJ is required to order medical
examinations and tests only if the medical records presented to him do not give
sufficient medical evidence to determine whether the claimant is disabled.” Halverson
v. Astrue, 600 F.3d 922, 933 (8th Cir. 2010) (quoting Barrett v. Shalala, 38 F.3d 1019
(8th Cir. 1994)).
In determining the claimant’s RFC, the ALJ may not normally rely solely on
non-treating, non-examining sources. See Nevland v. Apfel, 204 F.3d 853, 858 (8th
Cir. 2000), stating:
The ALJ relied on the opinions of non-treating, non-examining physicians
who reviewed the reports of the treating physicians to form an opinion of
Nevland’s RFC. In our opinion, this does not satisfy the ALJ’s duty to
fully and fairly develop the record. The opinions of doctors who have not
10

examined the claimant ordinarily do not constitute substantial evidence on
the record as a whole.
However, the ALJ does not “have to seek additional clarifying statements from a
treating physician unless a crucial issue is undeveloped.” Stormo v. Barnhart, 377
F.3d 801, 806 (8th Cir. 2004) (citing Snead, 360 F.3d at 839). “The regulations do
not require an ALJ to recontact a treating physician whose opinion is inherently
contradictory or unreliable.” Hacker v. Barnhart, 459 F.3d 934, 938 (8th Cir. 2006).
b.

Medical Sources

Acceptable Medical Source Opinions.

Medical opinions can come from a

treating source, an examining source or a non-treating, non-examining source (typically
a state agency medical consultant who issues an opinion based on a review of medical
records). Medical opinions from treating physicians are usually entitled to substantial
weight. Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000). A treating physician’s
opinion “does not automatically control or obviate the need to evaluate the record as [a]
whole.” Leckenby v. Astrue, 487 F.3d 626, 632 (8th Cir. 2007). Nonetheless, if the
ALJ finds that a treating physician’s medical opinion as to the nature and severity of the
claimant’s impairment is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the claimant’s] record, [the ALJ] will give it controlling weight.” 20
C.F.R. § 416.927(c)(2). “When an ALJ discounts a treating physician’s opinion, he
should give good reasons for doing so.” Brown v. Astrue, 611 F.3d 941, 951–52 (8th
Cir. 2010). However, a treating physician’s conclusion that an applicant is “disabled”
or “unable to work” addresses an issue that is reserved for the Commissioner and
therefore is not a “medical opinion” that must be given controlling weight. Ellis v.
Barnhart, 392 F.3d 988, 994 (8th Cir. 2005).
At the other end of the medical-opinion spectrum are opinions from non-treating,
non-examining sources: “The opinions of non-treating practitioners who have attempted
11

to evaluate the claimant without examination do not normally constitute substantial
evidence on the record as a whole.” Shontos v. Barnhart, 328 F.3d 418, 427 (8th Cir.
2003).

This does not mean, however, that such opinions are to be disregarded.

Indeed, “an ALJ may credit other medical evaluations over that of the treating
physician when such other assessments are supported by better or more thorough
medical evidence.” Prosch v. Apfel, 201 F.3d 1010, 1014 (8th Cir. 2000) (internal
quotations and citations omitted).

Unless a treating source’s opinion is given

controlling weight, the ALJ “must explain in the decision the weight given to the
opinions of a State agency medical or psychological consultant.”

20 C.F.R. §

44.1527(e)(2)(ii).
In the middle of the spectrum are opinions from consultative examiners who are
not treating sources but who examined the claimant for purposes of forming a medical
opinion. Normally, the opinion of a one-time consultative examiner will not constitute
substantial evidence, especially when contradicted by a treating physician’s opinion.
Cantrell v. Apfel, 231 F.3d 1104, 1107 (8th Cir. 2000).
Ultimately, it is the ALJ’s duty to assess all medical opinions and determine the
weight to be given these opinions. See Finch, 547 F.3d at 936 (“The ALJ is charged
with the responsibility of resolving conflicts among medical opinions.”); Estes v.
Barnhart, 275 F.3d 722, 725 (8th Cir. 2002) (“[i]t is the ALJ’s function to resolve
conflicts among ‘the various treating and examining physicians.’”) (citing Bentley v.
Shalala, 52 F.3d 784, 785–87 (8th Cir. 1995)).
Other Medical Sources. Under the regulations, a physician or a psychologist is
an “acceptable medical source.” 20 C.F.R. § 404.1513(a)(1)-(5). Only an acceptable
medical source can establish the existence of a medically determinable impairment. 20
C.F.R. § 404.1513(a)(1)-(5).

The Eighth Circuit has given explicit instruction

regarding the weight given to other sources:
[o]n August 9, 2006, the SSA issued Social Security Ruling (SSR) 0603p, 71 Fed. Reg. 45,593 (Aug. 9, 2006). The ruling clarified how it
12

considers opinions from sources who are not what the agency terms
“acceptable medical sources.” Social Security separates information
sources into two main groups: acceptable medical sources and other
sources. It then divides other sources into two groups: medical sources
and non-medical sources. 20 C.F.R. §§ 404.1502, 416.902 (2007).
Acceptable medical sources include licensed physicians (medical or
osteopathic doctors) and licensed or certified psychologists. 20 C.F.R. §§
404.1513(a), 416.913(a) (2007).
According to Social Security
regulations, there are three major distinctions between acceptable medical
sources and the others: (1) Only acceptable medical sources can provide
evidence to establish the existence of a medically determinable
impairment, id., (2) only acceptable medical sources can provide medical
opinions, 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2) (2007), and (3)
only acceptable medical sources can be considered treating sources, 20
C.F.R. §§ 404.1527(d) and 416.927(d) (2007). Other sources: Medical
sources include nurse practitioners, physician assistants, licensed clinical
social workers, naturopaths, chiropractors, audiologists, and therapists.
Non-medical sources include school teachers and counselors, public and
private social welfare agency personnel, rehabilitation counselors,
spouses, parents and other caregivers, siblings, other relatives, friends,
neighbors, clergy, and employers.
20 C.F.R. §§ 404.1513(d),
416.913(d) (2007). “Information from these ‘other sources’ cannot
establish the existence of a medically determinable impairment,”
according to SSR 06-03p. “Instead, there must be evidence from an
‘acceptable medical source’ for this purpose. However, information from
such ‘other sources’ may be based on special knowledge of the individual
and may provide insight into the severity of the impairment(s) and how it
affects the individual’s ability to function.”
Sloan v. Astrue, 499 F.3d 883, 888 (8th Cir. 2007). The court went on to say: “In
general, according to the ruling, the factors for considering opinion evidence include:
[h]ow long the source has known and how frequently the source has seen the individual;
[h]ow consistent the opinion is with other evidence; [t]he degree to which the source
presents relevant evidence to support an opinion; [h]ow well the source explains the
opinion; [w]hether the source has a specialty or area of expertise related to the
individual’s impairment(s); and [a]ny other factors that tend to support or refute the
opinion.” Sloan, 499 F.3d at 889. Finally, “[a] physical therapist is not an ‘acceptable
13

medical source’ whose opinion is entitled to substantial weight.” Castro v. Barnhart,
119 F. App'x 840, 842 (8th Cir. 2005).
2.

The Medical Evidence

This case has a relatively limited medical record, mostly relating to Stout’s back
and leg pain.

The records begin in 2009, when Stout sought treatment with her

chiropractor, John Schutz, D.C. AR 557-68. Dr. Schutz reviewed an MRI of Stout’s
lumbar spine on September 16, 2009, and diagnosed Stout with a disc herniation at L5S1 that was causing moderate left neural foramen stenosis, which is compression of a
nerve as it leaves a spinal canal through the foramen. AR 555. Failing to resolve
Stout’s pain, Dr. Schutz referred Stout to Robert Federhofer, D.O., in November of
2009. AR 292.
Dr. Federhofer gave Stout a series of injections (AR 369, 292) which seemingly
provided temporary relief. In April 2010, Stout began seeing Roger Skierka, M.D.,
for her back pain. AR 342-44. Stout reported that she could only walk for a few
minutes, could sit for only 30 minutes at a time and could not lift “much.” AR 343.
Dr. Federhofer also referred Stout to Russell Buchanan, M.D., at Heartland
Neurosurgery.1 At that clinic, Stout also saw Mary Ann Amend, ARNP, who noted on
April 27, 2010, that Stout’s pain began intensifying after she helped her parents move.
AR 434. Stout told Amend that her pain “goes on the left side, on the posterior aspect
of her thigh and radiates down to her left ankle.” AR 434.
Dr. Buchanan scheduled Stout for back surgery on May 21, 2010, intending to
relieve the pressure placed on the nerves exiting her spinal canal at L5-S1 and L4-5.
AR 337, 372.

Dr. Buchanan performed a left-sided L4-5 laminotomy, medial

facetectomy and decompression of the left L5 nerve root, along with a left-sided L3-4
laminectomy, neural foraminotomy, discectomy through the neural foramen, and
At every point from this date forward, Stout took a variety of pain medications and muscle
relaxants.
1

14

decompression of the left L3 and L4 nerve root. AR 372.

In the weeks following the

surgery, Stout reported to Amend that she had no back pain and that her leg pain had
improved significantly. AR 430. However, by September 2010, Stout reported some
lower back pain and pain in her left leg. AR 422. Stout reported that the pain was
severe enough that it affected her sleeping and her ability to stand for a period of time.
Id.
On September 17, 2010, an MRI revealed a possible impingement on the left
side at L3-4. AR 317. It also showed a “left-sided hemilaminectomy defect with some
enhancing scar tissue” that slightly projected into the spinal canal at L4-5 and some
mild left-sided neural foraminal encroachment from a bulging disc also at L4-5. Id.
Stout told Dr. Buchanan in November 2010 that she continued to have some back pain.
AR 418. He directed her to undergo a period of physical therapy. AR 418-21. Stout
told Amend that the pain improved a few days later and that her back pain rated as
“mild.” AR 414.
Stout next treated for her back in April and May of 2011. Stout underwent a
course of physical therapy from mid-April through early May. Stout attended several
physical therapy sessions, where she often reported she was “doing fine” or “good.”
AR 300-02. She also reported times with zero back pain. Id. On May 2, 2011,
physical therapist Michael Negen released Stout with the only limitation as “avoid back
extension.” AR 299. On May 31, 2011, Stout told Amend that she had stabbing low
back pain. AR 410. She described the pain as relatively new, radiating from her low
back to the left side of the front of her leg past her knee to her mid-thigh. AR 412.
Amend ordered a new MRI, which revealed a moderate to severe impingement on the
left neural foramen at L3-4. AR 412, 379. There was also mild impingement on the
right neural foramen at L4-5 and moderate impingement of the left neural foramen at
L4-5. Id.
Ashar Afzal, M.D., of the Allen Pain Clinic, saw Stout on June 3, 2011, and
diagnosed her with L4 radicular pain. AR 310. Dr. Afzal noted that Stout’s pain was
15

so severe she could not put weight on her leg and that she had recently been treated at
an emergency room for it. Id.

He performed a selective nerve root injection around

the L4 nerve to see if it would provide relief and provided her pain medication. Id. On
June 8, 2011, Daniel Koos, M.D., noted Stout’s pain was not well-controlled and the
injection had not helped her. AR 359. However, he stated that she had a normal range
of motion at all joints, no vertebral tenderness, and a positive straight leg raise. Id.
Dr. Koos noted that Stout was considering seeking social security disability, but did not
opine regarding whether she had any specific limitations. AR 360.
Stout followed up with Amend again on June 9, 2011. AR 406.

She reported

that her pain was worse, that she was using a wheelchair and that she had back spasms
throughout the day.

AR 408-09.

Amend diagnosed lumber disc disorder with

myelopathy and degeneration of the lumbar or lumbosacral disc. Id. Amend noted that
medication and injections had not relieved the pain and recommended another surgical
intervention. Id.
On June 15, 2011, Dr. Buchanan performed surgery to address Stout’s left L3
radiculopathy issues. AR 323. He performed the procedure to decompress the L3
nerve root by doing a total facet removal at L3-4, which also decompressed the L4
nerve root at that level. Id. Dr. Buchanan also attempted to perform a fusion at L3-4.2
Stout’s first post-operative follow-up on July 11, 2011, noted that she was much
improved after treatment and that she had no pain down her leg.

AR 455, 458.

However, Lynn Galloway, P.A., (who works at the same clinic as nurse Amend and
Dr. Buchanan) stated Stout should avoid prolonged bending, stooping, or heavy lifting
and other activities that aggravate back pain.

AR 457.

Galloway recommended

working up to 30 minutes of walking a day and a course of physical therapy. Id.
Galloway also noted that Stout continued to experience some mild to moderate back
pain. AR 458.
2

There is some confusion in the record as to whether the fusion was at L4-5 or L3-4. Most
records say L4-5.

16

On August 15, 2011, Galloway stated that Stout was “much improved.” AR
467. Galloway’s recommendations were unchanged from the July appointment. AR
469-70. However, Galloway wrote:
[Stout] has been off work for a year now since before her first surgery.
She states she is still unable to do anything even walk around Walmart
because she has no strength to do so. She has not been exercising and I
stressed the importance of exercise including daily walking and daily core
strengthening. She did not start [physical therapy] after her last visit as
instructed because she was afraid. I discussed with her that if she does
not start exercising now she will never be able to do anything. She will
start [physical therapy] for leg strengthening and we can build from there.
She certainly would be unable at this point to return to work as a store
clerk as she is limited to 25 pounds lifting and would at this point be
unable to do any prolonged standing or walking. We will check her back
two months.
AR 470.
On December 15, 2011, Galloway examined Stout and recorded that her pain
had increased. AR 476. Galloway’s notations on this date are short, but Galloway did
record that x-rays revealed no sign of post-surgical hardware failure.

AR 477.

Galloway also stated that Stout should not lift more than 20 pounds and should alternate
sitting and standing every 45 minutes. AR 478. Galloway noted that Stout continued
to care for her two young grandchildren throughout the day. AR 475.
On January 12, 2012, physical therapist William Taylor examined Stout. He
noted that Stout was “very active at home and cares for two grandchildren five days a
week. Picking up her 20 lb grandchild and doing vacuuming, sweeping, stooping,
bending, etc. increases low back pain.” AR 480. Stout reported increased back pain
and was limited in going through various lift exercises. Id. Taylor stated that “she
does not seem to be on a solid group of exercise of core strengthening and I would
recommend this.” Id. Taylor also made detailed limitation findings. AR 483.
On March 4, 2012, Stout went to the emergency room with lumbar spasms. AR
528. She stated she had worsening pain in both her back and her leg. AR 523. The
17

pain radiated down “the posterior aspect of the hip and radiate[d] to the foot.” Id. A
CT scan read March 5, 2012, by Hameed Kahn, M.D., showed issues at the L4-5 level
possibly caused by postoperative changes and bilateral neural foraminal narrowing at
the L5-S1 level, greater on the left than the right. AR 534. On March 6, 2012,
Amend noted that Stout’s pain had increased. AR 488. She again encouraged Stout to
take up walking and an exercise routine. AR 490. She also recommended Stout avoid
activities that aggravate her back.

Id.

She directed Stout to get another steroid

injection. AR 491.
By April 3, 2012, Stout reported that her pain had reached 10 out of 10. AR
499. The pain radiated down her “left buttock; and to the posterior aspect of the left
hip and lateral aspect of the left hip; lateral aspect of the thigh; and lateral aspect of the
left ankle[,] pain is increased in ankle since the last visit.” Id. Amend recommended a
follow up with Dr. Buchanan. AR 502. On April 22 and 23, 2012, Stout visited the
emergency room after driving several hours and experiencing back pain and spasms.
AR 516. Cristina Pasarin, M.D., noted Stout had left L5 radiculopathy, along with a
history of left L3 and L5 radiculopathy. AR 517. Dr. Pasarin recommended further
testing to evaluate possible degeneration in Stout’s back. Id.
An MRI on April 24, 2012, showed post-operative changes at L5-S1 on the left
that appeared to cause pressure on the S1 and L5 nerve roots. AR 532. On April 25,
2012, Dr. Buchanan performed a redo lumbar disk herniation procedure at L5-S1 that
had originally been performed in 2010. AR 509. Dr. Buchanan noted “[s]ignificant
compression of the left S1 nerve root….”

Id.

Dr. Buchanan exposed a previous

laminotomy defect during the procedure and cleared tissue and dissected the scar tissue
away from the bone edge to perform decompression at the S1 level. AR 510.
On May 17, 2012, Stout again saw Amend. AR 495. Amend noted slight
improvement in Stout’s pains and made similar recommendations as after previous
surgeries (exercise and walking, etc.) but stated that Stout should proceed without
physical therapy, as “this has always caused more harm than good.” AR 497. Amend
18

also limited Stout’s activities (bending, stooping, etc.), noted that she should avoid
sports for three months and stated that Stout was unable to work. AR 497-98.
3.

The ALJ’s Findings

As set out above, the ALJ found that Stout had the RFC to perform light work
except she can only lift and carry 20 pounds occasionally and 10 pounds frequently; she
can stand and walk for six hours in a workday; she can sit for six hours in an eight hour
workday; she can occasionally climb ramps and stairs; she cannot climb ladders, ropes,
or scaffolds; she can occasionally bend, crouch, and crawl; and she cannot work in
direct sunlight. In making these findings, the ALJ gave great weight to the opinions of
physician’s assistant Galloway, physical therapist Taylor and the agency sources. The
ALJ also found:
Ms. Galloway’s opinion that the claimant should alternate sitting and
standing 45 minutes per hour is not given significant weight since it is not
supported by the diagnostic or clinical findings and not recommended by
any other medical source (Ex. 13F, p. 4). The claimant’s nurse
practitioner and her neurosurgeon issued a restriction in July 2010 and
September 2010, respectively, for the claimant not to lift more than 25
pounds (Exs. 4F, p. 10 and 6F, p. 22). In light of the claimant’s
continued complaints of pain and reported difficulty lifting her youngest
grandchild who weighs less than 25 pounds as of December 2011, I have
found the 20-pound lifting limit more adequately accommodates the
claimant’s difficulties due to her impairment (Ex. 13F, pp. 2, 4).
AR 29.
4.

Analysis

Stout argues that ALJ had a duty to develop the record regarding Stout’s capacity
to work following her surgeries. Specifically, Stout argues:
The ALJ did not note any functional limitations or restrictions imposed by
Dr. Buchanan after [her] 2011 surgery—the surgeon that performed her
three back surgeries and otherwise managed her back treatment in the
record. (See *TR 27). Dr. Buchanan’s treatment notes were mostly terse
19

summaries of individual treatment sessions. (See *TR 333, 418, 332).
He did note that in 2010 Stout could return to work with a 25-pound
lifting restriction (*TR 424), but the record does not contain any opinion
from Dr. Buchanan as to what functional limitations Stout had after her
2011 back surgery. By Nevland and its progeny, the ALJ’s decision as it
relates to Stout’s residual functional capacity after her June 15, 2011,
back surgery is not based on substantial evidence because the RFC was
determined without reference to any treating or examining doctor’s
opinion.
Doc. No. 10 at 18. Stout also argues:
The opinions of Dr. Gershe and Dr. Hunter, non-examining agency file
reviewers, relied on the premise that the fusion performed to Stout’s
lower back in 2011 was performed at the L3-4 level as described in Dr.
Buchanan’s June 15, 2011, operative report. (*TR 82 (“06-15-11 left
laminectomy with posterior lateral fusion L3-4 and posterior lateral
internal fixation L3-4 performed”), 471 (“prior assessment affirmed as
written”), 323 (operative note—laminectomy, decompression and PLIF at
L3-L4)). Objective CT and MRI scans have since shown that this
underlying premise was probably false. (*TR 532, 534 (indicating fusion
was at L4-5 level)). The MRI and Dr. Buchanan’s own notes from his
2012 redo surgery seem to indicate that the 2010 back surgical procedures
he purportedly performed at the L3-4-5 levels were actually performed at
the L4-5-S1 levels. (See *TR 372, 532 (“Post operative changes at L5S1 on the left”, 509 (“Lumbar disk herniation, left side L5-S1. This is a
redo disk herniation. The first surgery was in 2010”)). As a result, the
reviewers did not anticipate a third surgery, but anticipated the claimant
could return to work.
Doc. No. 10 at 19. Accordingly, “the limitations proposed by Dr. Gershe and affirmed
by Dr. Hunter cannot constitute substantial evidence supporting the ALJ’s RFC
determination.” Doc. No. 10 at 20.
Finally, Stout concedes that Dr. Buchanan gave Stout a 25-pound lifting
restriction after her 2010 surgery, and he anticipated she would return to work within
12 months. However, Stout states:
Dr. Buchanan’s opinion as to Stout’s restrictions from September 13,
2010, until some point before her June 15, 2011, surgery was
“inconsistent with the other substantial evidence” in the record—mainly
20

Stout’s subjective complaints, Ms. Amend’s later restrictions, and the
apparent fact that the 2010 back operation was performed at the wrong
level. See 20 C.F.R. § 404.1527(c)(2). Dr. Buchanan has not provided
an opinion as to whether the 25-pound lifting restriction was correct given
that Stout needed further surgery in 2011 and also given what he found
out shortly before the 2012 procedure—that he had apparently performed
the 2010 surgery at the wrong levels in 2010. . .
Doc. No. 10 at 21-22.
Stout’s argument, in short, is that Dr. Buchanan was in the best position to
consider and opine regarding Stout’s post-surgical limitations.

Stout argues that

because Dr. Buchanan did not make extensive findings in his treatment notes, the ALJ
had a duty to seek an opinion regarding Stout’s limitations during the applicable time
period (between the alleged onset date on June 22, 2010 and the date last insured,
September 30, 2011). The defendant disagrees and argues that the ALJ’s decision is
supported by substantial evidence.
At the outset, I note that while Stout spends a considerable amount of time
discussing whether Dr. Buchanan operated at the L3-4 level or the L4-5 level in 2010,
that issue is not particularly relevant to my analysis. There is no evidence suggesting
that the specific level at which Dr. Buchanan operated has any effect on the case. Even
if Dr. Buchanan’s notes misstate the location of the surgery, the ALJ’s RFC is (or at
least should be) based on Stout’s ability to function and her limitations, not the precise
type of back surgery Dr. Buchanan performed.
Stout’s better argument is that the three surgeries should be viewed as an
ongoing issue; that the first surgery begat the second surgery which begat the third
surgery while the original issue left unaddressed by the first surgery continued to cause
Stout’s deterioration. However, even that argument misses the mark, because, as the
Commissioner points out, this court’s inquiry is related to a particular period of time.
The question is whether the ALJ’s RFC reflects Stout’s abilities as they existed between
June 22, 2010, and September 30, 2011.
21

Based on my review of the record, I find that the ALJ failed to properly develop
the record regarding Stout’s limitations during the relevant period. Nevland and its
progeny require that an ALJ develop the record if a critical issue is left underdeveloped
and make it clear that the ALJ may not rely on non-treating, non-examining sources to
fill in “holes” in the record. See, e.g., Hattig v. Colvin, No. C12-4092-MWB, 2013
WL 6511866, at *10 (N.D. Iowa Dec. 12, 2013). Here, Stout had an ongoing issue
with back/leg pain during the relevant time period. She had surgery in 2010 and, while
she initially reported some relief, her pain returned shortly thereafter.

She was

prescribed a course of physical therapy, completed it and was released to somewhat
normal activity, but her condition then worsened. She then had a second surgery in
2011 and again reported some relief, but her pain again returned and she subsequently
required a third surgery.
Dr. Buchanan’s post-surgical records in 2010 reflect his belief that Stout was in
the process of improving post-surgery.

See, e.g., AR 418-25.

However, Stout

reported increased pain, falling and decreased functioning shortly thereafter. See AR
299-302, 359.

Indeed, after completing physical therapy and returning to normal

activity, her condition quickly deteriorated and she had a second surgery.

Thus,

although the record contains evidence of both post-surgical limitations and what the
doctors thought Stout’s limitations would be when they assumed that the 2010/2011
surgeries were successful, the record contains no medical opinions about what Stout’s
impairments actually were during that time period in light of the fact that neither
surgery actually resolved Stout’s issues.
The ALJ relied primarily on two facts in support of the RFC: (1) Stout cared for
her grandchildren and (2) for short time period following the 2011 surgery, Stout
reported improvement. The operative portion of the ALJ’s opinion states:
As for the opinion evidence, I have given significant weight to the opinion
of the claimant's physician's assistant, Ms. Galloway, who opined in
December 2011 that the claimant should not frequently lift over 20 pounds
(Ex. 13F, p. 4). Significant weight is also given to the opinion of the
22

claimant's physical therapist, William M. Taylor, from January 2012
indicating that the claimant can occasionally perform postural activities
but not climb heights, could lift 20 pounds occasionally and 10 pounds
frequently, and has no limitation with sitting, standing, and walking in an
8-hour day (Ex. 14F, pp. 2-5). Although a physician's assistant and
physical therapist are not acceptable medical sources, they are medical
sources and they have examined the claimant over a significant period and
the objective findings from physical examination, radiographic reports,
and the claimant's ability to perform numerous activities of daily living
support their opinions. Although these limitations were assessed prior to
the claimant's final surgery in April 2012, there is no medical evidence of
record regarding the claimant's treatment and limitations for her back and
leg pain after this most recent procedure (Ex. 19F). In addition, the
claimant's date last insured is September 30, 2011; thus, any possible
evidence of deteriorating conditions after the date last insured is not
within the relevant time period. Furthermore, it is reasonable to expect
that the claimant's condition improved after this last surgery as it had after
the second surgery and she can actually perform at a less limited level
than the physician assistant and physical therapist had assessed a few
months prior to her surgery. The claimant's continued care for two small
children also indicates she could reasonably function at the residual
functional capacity assessed herein. In giving the claimant's subjective
complaints the benefit of the doubt and in consideration of the combined
effects of the claimant's severe and nonsevere impairments on the
claimant's ability to ambulate as well as her other body systems, I find
that the less than light exertional and function-by-function limitations
delineated above is appropriately the most the claimant could do.
AR 28-29 [emphasis added]. Based on this explanation, it is clear that the crux of the
ALJ’s finding is not based on any medical evidence of record during the relevant time
period.

Instead, the ALJ relied on a post-relevant time period functional capacity

report done between Stout’s surgeries and an assumption that “it is reasonable to expect
that the claimant’s condition improved” after surgery. But, as the ALJ admits, “the
claimant's date last insured is September 30, 2011; thus, any possible evidence of
deteriorating conditions after the date last insured is not within the relevant time
period.”

23

There simply is no medical evidence from an acceptable medical source that
explains Stout’s condition during 2010/2011, when it is clear that neither of the
surgeries that occurred during that time period provided lasting improvement.3
Additionally, although the ALJ leans heavily on the fact that Stout took care of her
grandchildren, that fact alone is not sufficient to supplant medical evidence in the
formation of the RFC when, as in this case, the claimant has a documented severe
impairment. Put another way, the subsequent developments in Stout’s case indicate that
Dr. Buchanan was incorrect in his initial assessment that Stout was improving postsurgery in 2010/2011. The medical evidence from this time period (including Dr.
Buchanan’s notes, P.A. Galloway’s assessments, physical therapy notes, and state
agency consultants opinions) seem to have been based on this faulty assumption. An
accurate picture of Stout’s condition in 2010/2011 cannot be drawn from medical
records that are premised on an incorrect assumption. Instead, some medical evidence
must be obtained that incorporates Stout’s subsequent history and answers the question
of “given that history, what was Stout’s condition during the relevant time period?”
Because no such evidence exists in this record, the ALJ’s RFC is not supported by

The ALJ as much as admitted this by basing the RFC on the opinions of physician’s assistant
Galloway, physical therapist Taylor and the state agency sources. As set out above, neither a
physicians’ assistant nor a physical therapist constitute an acceptable medical source. Of
course, they can be considered ‘other’ sources for determining the extent of a claimant’s
impairments. However, in this case those opinions are not reliable under the Sloan [499 F.3d
at 888] factors because they are not adequately explained and – because no other medical
evidence exists for the relevant time period – they are not consistent with the primary medical
evidence regarding Stout’s limitations. The ALJ’s reliance on the state agency experts is
equally misplaced. The ALJ noted that the state agency consultant opinions were credible
because they relied on the claimant’s “trend of improvement after surgery” and “longitudinal
treatment notes.” However, no treatment notes from the relevant time period exist that
actually reflect the failure of the surgeries, and the term “trend of improvement” completely
misstates the record. Stout improved for a short while, and then declined. Accordingly, the
ALJ’s reliance on these opinions, in the absence of a more fully developed medical record, is
misplaced.
3

24

substantial evidence.

Remand is necessary for the ALJ to adequately develop the

medical record regarding Stout’s limitations during the relevant time period.
B.

Credibility
Stout argues that the ALJ failed to properly consider her subjective complaints.

Among other things, she contends that the ALJ improperly relied on her activities of
daily living, specifically regarding the care she provides to her grandchildren, to
discount her subjective complaints of disability (and the third party statements of her
husband). Because I have concluded that remand is necessary for further development
of the medical record, the ALJ is directed to reevaluate the credibility of Stout’s
statements and her husband’s statements in light of the newly-developed medical
record.

VI.

CONCLUSION

For the reasons set forth herein:
1.

The Commissioner’s determination that Stout was not disabled is reversed
and this matter is remanded to the Commissioner for further proceedings
consistent with this opinion.

2.

Judgment shall enter against the Commissioner and in favor of Stout.

3.

If Stout wishes to request an award of attorney's fees and costs under the
Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, an application
may be filed up until 30 days after the judgment becomes “not
appealable,” i.e., 30 days after the 60-day time for appeal has ended. See
Shalala v. Schaefer, 509 U.S. 292, 296 (1993); 28 U.S.C. §§
2412(d)(1)(B), (d)(2)(G).

25

IT IS SO ORDERED.
DATED this 19th day of August, 2016.

________________________________
LEONARD T. STRAND
UNITED STATES DISTRICT JUDGE

26