Vires v. Astrue

Filing 19

MEMORANDUM AND ORDER re: 13 SOCIAL SECURITY BRIEF filed by Plaintiff Betty Vires, 16 SOCIAL SECURITY CROSS BRIEF re 11 Answer to Complaint filed by Defendant Michael J. Astrue. IT IS HEREBY ORDERED that the decision of theCommissioner is REVERSED and this cause is REMANDED to the Commissioner for further proceedings. Signed by Magistrate Judge Frederick R. Buckles on 4/8/13. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
BETTY VIRES,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,1
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 1:11CV212 FRB

MEMORANDUM AND ORDER
This cause is before the Court on plaintiff’s appeal of
an adverse determination by the Social Security Administration.
All

matters are pending before the undersigned United States

Magistrate Judge, with consent of the parties, pursuant to 28
U.S.C. § 636(c).
I.

Procedural History

On August 24, 2007, the Social Security Administration
denied plaintiff Betty Vires’ applications for Disability Insurance
Benefits (DIB) filed pursuant to Title II of the Social Security
Act, 42 U.S.C. §§ 401, et seq., and for Supplemental Security
Income (SSI) filed pursuant to Title XVI of the Act, 42 U.S.C. §§
1381, et seq., in which she claimed she became disabled on February

1

On February 14, 2013, Carolyn W. Colvin became the Acting
Commissioner of Social Security. Pursuant to Fed. R. Civ. P.
25(d), Carolyn W. Colvin is therefore automatically substituted
for former Commissioner Michael J. Astrue as defendant in this
cause of action.

1, 2007.

(Tr. 113-17, 190-93, 194-96.)

At plaintiff’s request, a

hearing was held before an Administrative Law Judge (ALJ) on April
15, 2009, at which plaintiff testified.

(Tr. 27-53.)

On May 26,

2009, the ALJ denied plaintiff’s claims for benefits.
107.)

(Tr. 97-

Plaintiff timely requested Appeals Council review of the

ALJ’s decision.
plaintiff’s

On March 23, 2010, the Appeals Council granted

request

and

remanded

the

instructions for further proceedings.

case

to

an

ALJ

with

(Tr. 110-12.)

Pursuant to the directive of the Appeals Council, a
hearing was held before an ALJ on August 19, 2010, at which
plaintiff testified.
February

(Tr. 54-82.)

In a written decision dated

24, 2011, the ALJ determined that vocational expert

responses to interrogatories supported a finding that plaintiff was
able to perform work as a cashier, small product assembler, and
hand packager as such work exists in the national economy, and thus
that plaintiff was not disabled.

(Tr. 10-21.)

On September 29,

2011, the Appeals Council denied plaintiff’s request to review the
ALJ’s decision.

(Tr. 1-3.)

The ALJ’s decision of February 24,

2011, is thus the final decision of the Commissioner.

42 U.S.C. §

405(g).
Plaintiff now seeks judicial review of the Commissioner’s
final decision arguing that it is not based upon substantial
evidence on the record as a whole.

Specifically, plaintiff claims

that the ALJ erred by failing to consider whether plaintiff’s

-2-

borderline intellectual functioning and mood disorder constituted
severe impairments, contrary
Council.

Plaintiff

also

to the directive of the Appeals

claims

that

the

ALJ

erred

in

his

determination of plaintiff’s residual functional capacity (RFC) by
improperly rejecting Dr. Lanpher’s opinion regarding the effects of
plaintiff’s mental impairments and by reaching conclusions not
based upon any medical evidence.

Finally, plaintiff claims that

the ALJ erred by improperly finding her subjective complaints not
to

be

credible.

Plaintiff

requests

that

the

Commissioner’s

decision be reversed and that she be awarded benefits, or that the
matter be remanded for further proceedings.
II.
A.

Testimonial Evidence Before the ALJ

Hearing Held April 15, 2009
At the hearing on April 15, 2009, plaintiff testified in

response to questions posed by the ALJ and counsel.
At the time of the hearing, plaintiff was forty-one years
of age.

Plaintiff stood five feet, one inch tall and weighed

ninety-eight pounds.
husband.

Plaintiff was married but separated from her

Plaintiff’s

two

teenaged

children

lived

with

her.

Plaintiff completed the ninth grade in high school but did not
obtain her GED. Plaintiff received training as a certified nurse’s
assistant,

but

plaintiff’s

certification

expired

in

1999.

Plaintiff could read but had difficulty comprehending big words.
Plaintiff could write but experienced pain in her hand when writing

-3-

for a period of time.

Plaintiff received financial assistance for

her children, and also received Medicaid and food stamps. (Tr. 3035.)
Plaintiff’s Work History Report shows that from 1996 to
1999, plaintiff worked in a nursing home, assisting residents.
2001, plaintiff worked as a waitress at Huddle House.
2007, plaintiff worked as a cook at Waffle House.

In

From 2006 to
(Tr. 246-53.)

Plaintiff testified that she also previously worked as a driver,
transporting people to and from their appointments.

(Tr. 35-36.)

Plaintiff testified that she experiences constant pain in
her

back

because

of

a

slipped

disc,

and

that

the

exacerbated when she stands for long periods of time.

pain

is

Plaintiff

testified that the pain also worsens when she moves around a lot or
lifts things.
breath

when

Plaintiff testified that she also becomes short of
she

walks

and

exacerbates her back pain.

that

the

pressure

in

her

chest

(Tr. 36-38.)

Plaintiff testified that she has rheumatoid arthritis and
that she experiences pain and swelling in her arms and knees
because of the condition.

Plaintiff testified that standing for

long periods of time causes swelling in her legs.

Plaintiff

testified that she also experiences numbness in her legs which
sometimes turns into sharp, shooting pain.

Plaintiff testified

that she experiences such episodes of numbness/shooting pain two or
three times a day and that such episodes have a duration of about

-4-

ten minutes.

(Tr. 38-39.)

Plaintiff testified that she takes hot showers or baths
to help relieve the pain, and that she uses heat packs and ice
packs as well.
out”

because

Plaintiff testified that she also tries to “walk it
she

does

not

want

to

become

stiff.

Plaintiff

testified that she has been prescribed Tylox for pain relief, and
that previous prescriptions for Lidoderm patches provided only
short-term relief.

Plaintiff testified that she lies down two or

three times a day because of pain.

(Tr. 47-48.)

Plaintiff testified that she also has chronic obstructive
pulmonary

disease

(COPD)

which

causes

breathing

problems.

Plaintiff testified that she uses nebulizers as well as oxygen at
night for the condition.

Plaintiff testified that she becomes

short of breath easily with exertion and that she is out of breath
after walking about 100 yards.

Plaintiff testified that she must

undergo breathing treatments twice a day, every day, and that each
treatment has a duration of twenty minutes.

Plaintiff testified

that she also has pneumothorax associated with her COPD, which
causes chest pain.

Plaintiff testified that her doctors have

cautioned that rupturing pneumothorax could affect her heart.
Plaintiff testified that, because of this, she has a friend stay
with her during the day in case something happens.
Plaintiff testified that she smokes one or two cigarettes
a day.

(Tr. 39-41, 49, 52.)

-5-

Plaintiff testified that she takes medication for high
blood pressure which helps her condition. Plaintiff testified that
she can feel tension in her body when her blood pressure is rising.
(Tr. 42.)
Plaintiff testified that she has emotional difficulties
in that she stays by herself, is moody and snaps at people.
Plaintiff testified that she experiences these episodes about once
a month but that she can control them.

Plaintiff testified that

she experiences crying spells at least once a week and that such
spells have a duration of five to twenty minutes.

(Tr. 43.)

Plaintiff testified that she has difficulty with her memory and
cannot remember things she reads or plot lines of television shows
she watches.

Plaintiff testified that a friend helps by reminding

her of appointments and to pay her bills.

(Tr. 49-50.)

As to exertional abilities, plaintiff testified that she
can lift up to ten pounds.

Plaintiff testified that she can sit

for ten to fifteen minutes before her legs begin to tingle and she
needs to stand.
ten minutes.

Plaintiff testified that she can stand for five to

Plaintiff testified that she experiences pain when

bending at the waist.

(Tr. 45-46.)

As to her daily activities, plaintiff testified that she
gets up in the morning between 6:00 and 7:00 a.m., gets her son up
for school, has coffee, and watches the news.
that she then takes a hot shower.

-6-

Plaintiff testified

Plaintiff testified that she

lies down two or three times a day because of pain.

Plaintiff

testified that her sixteen-year-old son does the laundry, yard work
and

cooking

but

that

she

gives

him

instruction.

Plaintiff

testified that her seventeen-year-old daughter does the vacuuming
and dusting.

Plaintiff testified that she can drive but drives

only to the store.

Plaintiff testified that her children do the

grocery shopping for her.

Plaintiff testified that she sometimes

goes to church on Sundays but does not belong to any groups or
clubs.

Plaintiff testified that she needs help with her personal

needs, such as washing her hair and putting on shoes and socks, and
that her daughter and a friend help her with such tasks.

Plaintiff

testified that she goes to bed at 9:00 p.m. but does not sleep
well.
B.

(Tr. 43-46, 48-49.)

Hearing Held on August 19, 2010
At the hearing on August 19, 2010, plaintiff testified in

response to questions posed by the ALJ and counsel.
At the time of the hearing, plaintiff was forty-three
years of age.
a friend.

Plaintiff lived with her seventeen-year-old son and

Plaintiff testified that she could read and write but

could not make change without writing down the calculations.

(Tr.

58-60.)
Plaintiff testified that her disability began in February
2007 but that she worked unsuccessfully as a waitress for two days
in December 2007.

Plaintiff testified that she was exhausted with

-7-

such work and experienced fluid buildup on her knees because of
standing for long periods of time.
was fired from this job.

Plaintiff testified that she

Plaintiff testified that she currently

was unable to work because of lung problems, slipped discs from L1L5, COPD, emphysema, pneumothorax, and hepatitis C.

(Tr. 59-61.)

Plaintiff testified that COPD causes shortness of breath
with walking and with activity.

Plaintiff testified that she must

sit for about fifteen to twenty minutes after engaging in such
activities in order to catch her breath.

Plaintiff testified that

she can vacuum for about five or ten minutes before sweating and
hyperventilating due to shortness of breath.

Plaintiff testified

that, with her breathing difficulties, she also experiences chest
pain every day.

Plaintiff testified that she has smoked three or

four cigarettes a day for about six months, and smoked about half
a pack of cigarettes per day prior to such time.

(Tr. 61-62, 68-

69.)
Plaintiff testified that she experiences constant back
pain and rated the pain at a level seven on a scale of one to ten.
Plaintiff testified that the pain worsens with driving, lifting,
bending, standing to do the dishes, and doing laundry.

Plaintiff

testified that she also has arthritis throughout her body but that
she notices it mostly in her hands, feet and arms.

Plaintiff

testified that she experiences numbness and contraction on a daily
basis and that it takes about five minutes every morning to work

-8-

out the stiffness.

Plaintiff testified that she tries to relieve

her back and arthritis pain by walking, moving her hands or taking
hot showers.

Plaintiff testified that she also uses pain patches

and takes Lorcet which relieves the pain.

(Tr. 63-66, 68.)

Plaintiff testified that she experiences swelling in her
feet and hands and that she must elevate her legs throughout the
day to alleviate the swelling.

Plaintiff testified that she also

lies down during the day because she needs to rest.

(Tr. 67-68.)

Plaintiff testified that she has experienced migraine
headaches during the previous eight months for which she has been
prescribed Imitrex.

Plaintiff testified that her migraines last

about three or four hours and that she experiences them about once
a week.

Plaintiff testified that she lies down in a dark room

during such episodes.

(Tr. 78.)

Plaintiff testified that she was diagnosed with hepatitis
C five months prior but had not yet begun treatment for the
condition.
sharp

Plaintiff testified that she experiences intermittent

pain

in

her

right

side

on

account

of

the

condition.

Plaintiff testified that she was in the process of obtaining a
second opinion from a liver specialist.
Plaintiff

testified

that

(Tr. 78-80.)

she

experiences

emotional

difficulties in that she is bipolar, depressed, gets upset, and is
irritable.

Plaintiff testified that she sometimes acts out toward

people in a verbally aggressive manner.

-9-

Plaintiff testified that

she has crying spells three or four times a week and that such
episodes last all day.
financial stress.

Plaintiff testified that she is under

(Tr. 69-70.)

Plaintiff testified that she has difficulty with her
memory and has trouble following a television program she may be
watching.

Plaintiff testified that her sister attends doctor’s

appointments with her because she does not understand everything
being said.

Plaintiff testified that her sister also helps her

with everyday activities.

(Tr. 71.)

As to her exertional abilities, plaintiff testified that
she can lift ten to fifteen pounds.

Plaintiff testified that she

can sit twenty to thirty minutes before standing in order to work
out the numbness and tingling in her legs.

Plaintiff testified

that she can stand for ten to fifteen minutes. Plaintiff testified
that she is able to bend to pick something up from the floor but
sometimes experiences pain while doing so.

Plaintiff testified

that she can write for up to twenty minutes before her hands begin
to cramp.

(Tr. 73-74.)
As to her daily activities, plaintiff testified that her

sister visits with and spends time with her.
that

she

writes

letters

to

her

son

and

Plaintiff testified
husband.

Plaintiff

testified that she goes to church every Sunday and participates in
bible study.
week,

but

Plaintiff testified that she cooks once or twice a

that

her

son

and

sister

- 10 -

do

most

of

the

cooking.

Plaintiff testified that her son and sister also do the laundry.
Plaintiff testified that she goes to bed at 8:00 p.m. but does not
sleep well in that she is up and down throughout the night.
Plaintiff testified to her belief that her intermittent sleep
pattern is mostly due to habit.
C.

(Tr. 72, 74-75.)

Vocational Expert Interrogatories
On September 29, 2010, J. Stephen Dolan, a vocational

expert, answered written interrogatories put to him by the ALJ.
(Tr. 303-07.)
Mr. Dolan characterized plaintiff’s past relevant work as
a nurse’s assistant as medium and semi-skilled; as an informal
waitress as light and semi-skilled; and as a cook as medium and
skilled.
Mr. Dolan was asked to consider an individual forty-two
years of age, with a ninth grade education and plaintiff’s work
history, and to further assume that such an individual
would be limited to light work with the
following additional limitations:
(1) she
must avoid concentrated exposure to extreme
heat or cold, and vibrations; (2) she must
avoid even moderate exposure to pulmonary
irritants including dusts, odors, gas, fumes
and the like; and (3) she is limited to
simple, routine, and repetitive tasks.
(Tr. 304.)
Ms. Dolan responded that such a person could not perform any of
plaintiff’s past relevant work but could perform work as a cashier,
- 11 -

of which 20,000 such jobs exist in the State of Missouri; as a
small product assembler, of which 5,000 such jobs exist in the
State of Missouri; and as a hand packager, of which 4,000 such jobs
exist in the State of Missouri.
In interrogatories posed by plaintiff’s counsel (Tr. 31222), Mr. Dolan was asked to assume an individual who was moderately
to markedly impaired in her ability to understand instructions,
markedly impaired in her ability to remember instructions, markedly
impaired in her ability to sustain concentration, and moderately
impaired in her ability to interact socially and adapt to her
environment.

Mr. Dolan responded that such a person could not

perform any of plaintiff’s past relevant work or any other work.
III.

School and Medical Records Before the ALJ

During the 1982-83 school year, plaintiff’s first year of
high school, plaintiff failed all of her classes.

At the time

plaintiff left high school during her second year, she was failing
all of her classes.

(Tr. 330-32.)

A CT scan of the chest taken on March 8, 2004, in
response to plaintiff’s complaints of chronic congestion showed
emphysematous bulla involving both apices, scarring involving the
right apex, and changes from old granulomatous disease. (Tr. 362.)
Upon referral from Dr. J. Michael Hoja, plaintiff visited
pulmonologist Dr. Dennis Daniels on March 12, 2004, who noted
plaintiff’s

pulmonary

function

tests

- 12 -

(PFTs)

to

show

normal

spirometry and normal lung volumes.

It was noted that plaintiff

had reduced her smoking and had no symptoms of cough or chest pain.
It was noted that plaintiff was taking Wellbutrin for smoking
cessation.

Dr.

dependence,

Daniels

emphysema,

diagnosed

and

bullous

plaintiff
emphysema

with
and

tobacco

instructed

plaintiff to take Commit lozenges and to continue on her current
treatment regimen.

Dr. Daniels noted that plaintiff was very

stable for work and that there was no pulmonary contraindication
for working.

(Tr. 363-64.)

Plaintiff returned to Dr. Daniels on October 22, 2004,
who

noted

that

instructed

to

plaintiff
continue

continued
with

her

to

smoke.

smoking

Plaintiff

cessation

was

program.

Physical examination showed plaintiff’s lungs to be decreased with
slight prolongation of expiration.

Dr. Daniels prescribed Advair,

Spiriva and Albuterol, all to be used daily.2

Dr. Daniels opined

that plaintiff should eventually be evaluated for lung volume
reduction surgery given her bullous emphysema.
On

July

26,

2005,

Dr.

Daniels

(Tr. 366-67.)

noted

that

a

recent

overnight pulse oximetry showed abnormal overnight denaturation.
Plaintiff also complained of daytime sleepiness.

2

Dr. Daniels

Such medications are used to prevent and treat wheezing,
shortness of breath, coughing, and chest tightness caused by lung
diseases such as asthma, chronic bronchitis, and COPD. Medline
Plus <http://www.nlm.nih.gov/medlineplus/druginfo/meds/
a682145.html>, <http://www.nlm.nih.gov/medlineplus/druginfo/meds/
a604018.html>,<http://www.nlm.nih.gov/medlineplus/druginfo/meds/a
699063.html>.
- 13 -

ordered additional testing.

Dr. Daniels noted plaintiff’s COPD to

be stable with her current medications and with plaintiff having
quit smoking.

(Tr. 381.)

Plaintiff visited Dr. Daniels on September 27, 2005, who
noted plaintiff to be upset and emotionally labile because her
children had been taken from her due to drug paraphernalia being
found

in

her

possession.

prescribed Valium.

Plaintiff

requested

that

she

Physical examination was unremarkable.

be
Dr.

Daniels recommended no changes in plaintiff’s COPD medications
inasmuch as her condition was stable.
see

Dr.

Hoja

regarding

government agencies.

her

Plaintiff was instructed to

anxiety

and

for

assistance

with

Dr. Daniels instructed plaintiff to continue

with her medications and with her oxygen as prescribed.

(Tr. 382-

83.)
Plaintiff returned to Dr. Daniels on December 28, 2005,
who noted plaintiff’s COPD to be stable.
shortness of breath or chest pain.
unremarkable.

Dr.

Daniels

Plaintiff denied any

Physical examination was

diagnosed

plaintiff

with

mild

to

moderate COPD and recommended that plaintiff have a sleep study and
continue with her medications of Advair and Combivent (Albuterol).
Plaintiff was instructed to return as needed.

(Tr. 385.)

Plaintiff visited Dr. Charles Lawson at Kneibert Clinic
on April 5, 2006, for a DFS examination.

Plaintiff complained of

shortness of breath on exertion, desaturation at night, and daily

- 14 -

coughing. Plaintiff reported that she no longer had her prescribed
oxygen due to loss of medical care and her inability to afford
medication and doctor’s visits.

Plaintiff reported that she had

been told that her lungs were life threatening with pneumothorax.
Plaintiff complained that her legs give out when she drives and
that she develops knots in the popliteal area, which are relieved
by lying down.
since 2001.

It was noted that plaintiff had been unemployed

Plaintiff reported that she was depressed.

It was

noted that plaintiff’s husband was serving a fifty-year prison
sentence and that her children had been removed from her.
Lawson

noted

examination

plaintiff
of

the

to

lungs

appear
was

chronically

unremarkable.

ill.

Dr.

Physical

Musculoskeletal

examination showed plaintiff able to bend easily to almost touch
her toes and to be able to squat and rise quicky, but plaintiff was
not able to lift twenty pounds over her head.
level was noted to be good.
perform sedentary work.
rheumatoid

arthritis

and

Plaintiff’s activity

Dr. Lawson opined that plaintiff could
Plaintiff was diagnosed with COPD and
was

prescribed

Percocet,3

Albuterol,

Spiriva, Effexor,4 Quinine Sulfate,5 Zyprexa,6 and Flexeril.7

No

3

Percocet (Tylox) is used to relieve moderate to severe
pain. Medline Plus (last revised Oct. 15, 2011)<http://
www.nlm.nih.gov/medlineplus/druginfo/meds/a682132.html>.
4

Effexor is used to treat depression. Medline Plus (last
Jan. 15, 2012)<http://www.nlm.nih.gov/medlineplus/druginfo/meds/
a694020.html>.
5

Quinine is used to treat malaria. Medline Plus (last
revised Feb. 1, 2011)<http://www.nlm.nih.gov/medlineplus/
- 15 -

arrangements for follow up were made.

(Tr. 393-96.)

On July 3, 2006, plaintiff visited Dr. Navid Siddiqui at
Kneibert Clinic with complaints relating to sinusitis.

Plaintiff

denied any chest pain, headache, or musculoskeletal symptoms.
Plaintiff’s history of COPD was noted.
medication for her current condition.

Plaintiff was prescribed
(Tr. 389-91.)

On October 4, 2006, plaintiff visited Dr. Hoja with
complaints

of

abdominal

pain.

Physical

examination

showed

tenderness and decreased range of motion about the lumbar spine,
but was otherwise unremarkable.

Plaintiff was noted to exhibit

signs of depression and anxiety.

Medications, including Lunesta,8

Valium,9 Effexor, Zyprexa, and Norco,10 were prescribed.

(Tr. 335,

339.)

druginfo/meds/a682322.html>.
6

Zyprexa is used to treat the symptoms of schizophrenia and
bipolar disorder. Medline Plus (last revised May 16, 2011)
<http://www.nlm.nih.gov/medlineplus/druginfo/meds/a601213.html>.
7

Flexeril, a muscle relaxant, is used to relax muscles and
relieve pain and discomfort caused by strains, sprains, and other
muscle injuries. Medline Plus (last revised Oct. 1, 2010)
<http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682514.html>.
8

Lunesta is used to treat insomnia. Medline Plus (last
revised Oct. 1, 2008)<http://www.nlm.nih.gov/medlineplus/
druginfo/meds/a605009.html>.
9

Valium is used to relieve anxiety, muscle spasms, and
seizures. Medline Plus (last reviewed Oct. 1, 2010)<http://
www.nlm.nih.gov/medlineplus/druginfo/meds/a682047.html>.
10

Norco (Lortab, Lorcet) is used to relieve moderate to
severe pain. Medline Plus (last revised July 18, 2011)<http://
www.nlm.nih.gov/medlineplus/druginfo/meds/a601006.html>.
- 16 -

Plaintiff returned to Dr. Hoja on May 15, 2007, for
review of medications.

Physical examination continued to show

tenderness and limited range of motion about the lumbar spine.
Plaintiff was instructed to take Norco.

(Tr. 338.)

Plaintiff visited Dr. Siddiqui on May 18, 2007, with
complaints of back and neck pain.

It was noted that plaintiff had

a history of chronic back pain secondary to disc disease and had
been followed in a pain clinic.

Plaintiff reported that she was

being treated with Percocet in the pain clinic but wanted to
establish Dr. Siddiqui as her physician.
swelling, chest pain or leg pain.

Plaintiff denied any

Physical examination showed low

back and neck tenderness but was otherwise unremarkable. Plaintiff
was diagnosed with chronic lumbosacral back pain and was prescribed
Percocet and Flexeril.

Plaintiff was instructed to continue with

Albuterol and Spiriva for her COPD.

(Tr. 358-60.)

Plaintiff returned to Dr. Siddiqui on June 1, 2007, for
follow

up

complaints.

of

previous

testing.

Plaintiff

reported

Physical examination was unremarkable.

no

new

Plaintiff was

referred to a rheumatologist for rheumatoid arthritis, and tests
were

ordered.

Chest

x-rays

and

PFTs

were

likewise

ordered.

Plaintiff was prescribed Percocet, Quinine Sulfate, Albuterol,
Spiriva, and Effexor.

(Tr. 353-55.)

A chest x-ray taken that same

date showed slight flattening of the diaphragm and hyperinflation
of the lungs consistent with COPD or reactive airway disease. (Tr.

- 17 -

356.)

Spirometry reports of PFT testing yielded normal results.

(Tr. 411-12.)
On June 15, 2007, plaintiff returned to Dr. Siddiqui for
monitoring of her chronic conditions.
problems.

Plaintiff

Examination

showed

complained

tenderness

Plaintiff denied any new

of

about

back
the

and

low

joint

back

pain.

and

neck.

Plaintiff’s lumbosacral disc disease was noted to be stable with
Percocet.

Plaintiff

was

referred

to

a

rheumatologist

for

rheumatoid arthritis, and a CT scan of the chest was ordered for a
detected pulmonary nodule.

(Tr. 405-06.)

On June 20, 2007, Dr. Hoja continued plaintiff on her
current treatment regimen.

(Tr. 337.)

A CT scan of the thorax taken on July 3, 2007, showed
evidence

of

underlying

emphysema

interstitial

thickening

and

scarring.

with

retraction

bullous
probably

changes,

representing

A tumor could not be ruled out and additional scanning

was recommended.

(Tr. 401.)

In July and August 2007, plaintiff returned
Siddiqui for monitoring of her chronic conditions.
denied any new problems.
pain.

and

to

Dr.

Plaintiff

Plaintiff continued to complain of back

Examination showed tenderness about the low back and neck.

Plaintiff’s back condition was noted to be stable with Percocet.
Plaintiff was prescribed Percocet, Flexeril and Flovent.11
11

(Tr.

Flovent is used to prevent difficulty breathing, chest
tightness, wheezing, and coughing caused by asthma. Medline Plus
- 18 -

398-400, 492-94.)
On

August

20,

2007,

Dr.

James

Spence

completed

a

Psychiatric Review Technique Form for disability determinations in
which he opined that plaintiff’s depression did not constitute a
severe mental impairment.

(Tr. 415-25.)

Plaintiff visited Dr. Hoja on August 21, 2007, who noted
plaintiff’s symptoms to be stable and that plaintiff’s medications
were working well.
problems.

It was noted that plaintiff was having family

(Tr. 455.)
In a Physical Residual Functional Capacity Assessment

completed August 24, 2007, J. Diemer, a medical consultant with
disability determinations, opined that plaintiff could occasionally
lift and carry twenty pounds, and frequently lift and carry ten
pounds; could sit about six hours in an eight-hour workday, and
stand and/or walk about six hours in an eight-hour workday; and was
unlimited in her ability to push and/or pull.
further
visual,

opined
or

that

plaintiff

communicative

had

no

Consultant Diemer

postural,

limitations.

manipulative,

With

respect

to

environmental limitations, Consultant Diemer opined that plaintiff
should avoid even moderate exposure to fumes, odors, gases, dusts,
and poor ventilation; and should avoid concentrated exposure to
extreme cold and heat, and vibration.
On September 18, 2007,

Dr.

(Tr. 426-31.)
Hoja noted plaintiff to

(last reviewed Sept. 1, 2010)<http://www.nlm.nih.gov/medlineplus/
druginfo/meds/a601056.html>.
- 19 -

continue to have family stress. Depression and anxiety were noted.
(Tr. 454.)
On October 16, 2007, plaintiff reported to Dr. Hoja that
she had a mass on her lung.

It was noted that plaintiff had an

upcoming appointment at a pulmonary clinic regarding the mass.

It

was noted that plaintiff was not taking Norco.

On

(Tr. 453.)

November 21, 2007, Dr. Hoja ordered a CT scan of the chest.

(Tr.

452.)
On December 11, 2007, plaintiff complained to Dr. Hoja of
pain in her ribs, and Dr. Hoja noted decreased range of motion and
tenderness in the area.

Rhonchi and diminished breath sounds were

noted upon examination of the lungs.
Lidocain,12

Plaintiff was prescribed

Decadron13

medication,

including

and

antibiotic.

A CT scan of the chest was ordered.

Keflex,

an

(Tr. 451.)

From September 2007 through February 2008, plaintiff
visited Dr. Siddiqui on a monthly basis for monitoring of her
chronic

condition

as

congestion and cough.

well

as

for

treatment

related

to

sinus

Throughout this period, no change was noted

in plaintiff’s complaints and/or examination. On February 7, 2008,
plaintiff’s current medications were noted to include Percocet,
12

Lidocain patches are used to relieve the pain of postherpetic neuralgia. Medline Plus (last reviewed Sept. 1, 2010)
<http://www.nlm.nih.gov/medlineplus/druginfo/meds/a603026.html>.
13

Decadron, a corticosteroid, is used to relieve inflammation
and treat certain forms of arthritis and asthma. Medline Plus
(last reviewed Sept. 1, 2010)<http://www.nlm.nih.gov/medlineplus/
druginfo/meds/a682792.html>.
- 20 -

Albuterol, Spiriva, Effexor, Quinine Sulfate, Flexeril, Flovent,
and Medrol.14
On

(Tr. 461-63, 471-89.)
January

8,

2008,

Dr.

Hoja

determined

plaintiff’s medication from Lunesta to Ambien.

to

change

(Tr. 450.)

On

February 21, 2008, Dr. Hoja adjusted plaintiff’s dosages of Norco
and Valium.

Plaintiff was noted to be anxious and depressed.

(Tr.

447.)
On March 20, 2008, plaintiff reported to Dr. Hoja that
she continued to not sleep well.

Dr. Hoja also noted continued

tenderness and decreased range of motion about the lumbar spine.
Depression and anxiety

were noted.

Plaintiff was prescribed

Seroquel15 and was instructed to discontinue Zyprexa.

(Tr. 446.)

On May 14, 2008, plaintiff reported to Dr. Hoja that her
moods

were

worse

and

that

she

continued

Physical examination was unchanged.

have

back

pain.

Plaintiff was not given a

refill of Norco but was prescribed Motrin.
prescribed.

to

Tegretol16 was also

(Tr. 444.)

14

Medrol, a corticosteroid, is used to relieve inflammation
and treat certain forms of arthritis and asthma. Medline Plus
(last reviewed Sept. 1, 2010)<http://www.nlm.nih.gov/medlineplus/
druginfo/meds/a682795.html>.
15

Seroquel is used to treat the symptoms of schizophrenia,
bipolar disorder, and depression. Medline Plus (last revised
Nov. 15, 2012)<http://www.nlm.nih.gov/medlineplus/druginfo/meds/
a698019.html>.
16

Tegretol is used to treat episodes of mania or mixed
episodes in patients with bipolar disorder. Medline Plus (last
revised July 16, 2012)<http://www.nlm.nih.gov/medlineplus/
druginfo/meds/a682237.html>.
- 21 -

Plaintiff visited Dr. Edith Hickey at Kneibert Clinic on
June 26, 2008, with complaints of lung pain.
a refill of pain medications.

Plaintiff requested

It was noted that plaintiff saw Dr.

Hoja for her pain medications, but plaintiff reported that Dr. Hoja
would not see her because of a problem with billing.

Dr. Hickey

prescribed Ultram17 for plaintiff and recommended that she be seen
for pain management.
On

July

7,

(Tr. 458-60.)
2008,

pressure to be elevated.

Dr.

Hoja

noted

plaintiff’s

blood

Diovan was prescribed for the condition.

Dr. Hoja also noted continued tenderness and limited range of
motion

about

plaintiff’s

lumbar

spine,

symptoms of depression and anxiety.

as

well

as

continued

(Tr. 442.)

On August 4, 2008, plaintiff reported to Dr. Hoja that
her symptoms were stable with medication but that her legs “jump a
lot.”

Physical examination was unchanged.

plaintiff with restless leg syndrome.

Dr. Hoja diagnosed

(Tr. 441.)

A CT scan of the chest taken August 15, 2008, showed COPD
and probable scarring in both apices, notably similar to the prior
CT scan taken in July 2007.

(Tr. 439-40.)

From September 2008 through January 2009, plaintiff saw
Dr. Hoja on a monthly basis for medication management.

Throughout

this period, plaintiff continued to exhibit tenderness and limited

17

Ultram (Tramadol) is used to relieve moderate to moderately
severe pain. Medline Plus (last revised Oct. 15, 2011)<http://
www.nlm.nih.gov/medlineplus/druginfo/meds/a695011.html>.
- 22 -

range of motion about the lumbar spine and was noted to exhibit
symptoms of depression and anxiety.

On January 12, 2009, Dr. Hoja

changed plaintiff’s Lortab prescription to Tylox.

(Tr. 433-38.)

On January 9, 2009, plaintiff underwent a psychological
evaluation

for

purposes

of

continued Medicaid benefits.

determining

plaintiff’s

need

for

Plaintiff reported to psychologist

Dr. Ben Lanpher that she had COPD, emphysema, and rupturing air
pockets in her lungs, and that she had been told that she had
bipolar disorder.

Plaintiff reported her current medications to

include Zyprexa, Seroquel, Valium, Tylox, Effexor, and Albuterol,
and that she had been prescribed oxygen in the past.

Plaintiff

reported that Dr. Hoja had diagnosed her with bipolar disorder and
that she was currently receiving treatment for the condition.
Plaintiff reported symptoms characteristic of depression, including
lack of energy, anger outbursts, and feelings of helplessness and
hopelessness.

Plaintiff reported no symptoms of mania.

Plaintiff

reported that she had never been psychiatrically hospitalized and
was not currently receiving counseling or psychiatric follow-up
care.

Plaintiff reported having dropped out of high school in the

ninth

grade

and

of

having

been

enrolled

in

special

classes.

Plaintiff reported a history of having difficulties in math,
reading and spelling. Mental status examination showed plaintiff’s
mood to be depressed and anxious with a blunted affect.
was noted to be tearful.

Plaintiff

Plaintiff’s speech was noted to be rough

- 23 -

and gravelly. Plaintiff’s vocabulary was noted to be weak, and Dr.
Lanpher observed plaintiff to have a noticeable speech impediment.
Plaintiff’s motor behavior was observed to be blunted. Dr. Lanpher
noted plaintiff to demonstrate limited abstract thinking abilities.
Plaintiff scored 22 out of 30 points on a mini-mental status
examination. Upon conclusion of the evaluation, Dr. Lanpher opined
that plaintiff appeared to function in the borderline to mild
mental retardation range of intellectual ability.

Dr. Lanpher

opined that plaintiff exhibited symptoms characteristic of mood
disorder, including depression, but that plaintiff did not report
symptoms characteristic of bipolar disorder. Dr. Lanpher diagnosed
plaintiff

with

borderline
retardation.

mood

disorder,

intellectual
Dr.

not

otherwise

specified;

rule

mild

functioning,

Lanpher

assigned

a

out

Global

and

mental

Assessment

of

Functioning (GAF) score of 48 and opined that plaintiff’s highest
score within the past year was 58.18

(Tr. 496-98.)

Dr. Lanpher

opined that plaintiff was

18

A GAF (Global Assessment of Functioning) score considers
“psychological, social, and occupational functioning on a
hypothetical continuum of mental health/illness.” Diagnostic and
Statistical Manual of Mental Disorders, Text Revision 34 (4th ed.
2000). A GAF score of 41-50 indicates serious symptoms (e.g.,
suicidal ideation, severe obsessional rituals, frequent
shoplifting) or any serious impairment in social, occupational,
or school functioning (e.g., no friends, unable to keep a job).
A GAF score of 51 to 60 indicates moderate symptoms (e.g., flat
affect and circumstantial speech, occasional panic attacks) or
moderate difficulty in social, occupational, or school
functioning (e.g., few friends, conflicts with peers or coworkers).
- 24 -

moderately to markedly impaired in her ability
to understand instructions. She is perceived
as being markedly impaired in her ability to
remember instructions.
She is perceived as
being markedly impaired in her ability to
sustain concentration.
She is perceived as
moderately impaired in her ability to interact
socially and adapt to her environment. She is
perceived as being capable of handling awarded
benefits,
with
some
supervision
and
assistance.
(Tr. 498.)
Plaintiff visited Dr. Daniels on April 13, 2009, and
complained of continued shortness of breath, but that she had quit
smoking

six

months

prior.

Plaintiff

headache, or lower extremity swelling.

denied

any

chest

pain,

Physical examination was

unremarkable except for prolonged expiratory phase of the lungs.
Dr. Daniels diagnosed plaintiff with COPD and chronic bronchitis.
Dr. Daniels determined to resume Spiriva and to start plaintiff on
Singulair, a nasal steroid spray.

(Tr. 505-06.)

On August 24, 2009, plaintiff visited Dr. Keith Graham
upon the referral of Dr. Hoja for evaluation of COPD and history of
lung mass.

Plaintiff reported having significant shortness of

breath since 1999 and of having had a spontaneous pneumothorax at
that time which required the insertion of a chest tube.

Plaintiff

reported her shortness of breath to worsen with humid weather.
Plaintiff also reported wheezing and coughing as well as some chest
discomfort.

As to

other conditions, plaintiff reported some

- 25 -

occasional

lower

extremity

edema

as

well

Plaintiff reported to be currently smoking.

as

osteoarthritis.

Physical examination

showed no shortness of breath upon speaking, no marked wheezing,
and no edema.

Breath sounds were notably decreased.

Dr. Graham

ordered various diagnostic studies and prescribed Claritin D19 and
Symbicort.20

Plaintiff was instructed to continue with Spiriva.

(Tr. 502-04.)
On October 15, 2009, plaintiff visited Dr. Nina Hill at
River City Health Clinic (RCHC) seeking primary care treatment for
her slipped discs, chronic lung pain, and bipolar disorder.

Dr.

Hill prescribed Tramadol and Vistaril.21

Laboratory testing and x-

rays of the lumbar spine were ordered.

(Tr. 520.)

Plaintiff returned to RCHC on October 20, 2009, and
reported that she experienced stomach pain
shaking with Vistaril.

with Tramadol and

Physical examination was unremarkable.

Laboratory results were positive for hepatitis C.

Plaintiff was

diagnosed with chronic low back pain, hepatitis C, COPD, and
anxiety.

Plaintiff was prescribed Lorcet, and plaintiff’s Valium

19

Claritin D is used to temporarily relieve allergy symptoms.
Medline Plus (last revised Oct. 1, 2010)<http://www.nlm.nih.gov/
medlineplus/druginfo/meds/a697038.html>.
20

Symbicort is used to prevent wheezing, shortness of breath,
and troubled breathing caused by severe asthma and other lung
diseases. Medline Plus (last reviewed Aug. 1, 2010)<http://
www.nlm.nih.gov/medlineplus/druginfo/meds/a699056.html>.
21

Vistaril is used to treat anxiety. Medline Plus (last
revised Sept. 1, 2010)<http://www.nlm.nih.gov/medlineplus/
druginfo/meds/a682866.html>.
- 26 -

prescription was refilled for anxiety. Plaintiff was instructed to
continue with her pulmonary medications.

(Tr. 519.)

Plaintiff visited Dr. Hill on October 30, 2009, and
discussed the hepatitis C diagnosis.

Dr. Hill noted plaintiff’s

lungs to be coarse and to have decreased breath sounds.
diagnosed

plaintiff

with

hepatitis

C,

Dr. Hill

hypertension,

gastroesophageal reflux disease (GERD) with positive h-pylori, COPD
with

bullous

disorder.

emphysema,

chronic

low

back

pain,

and

bipolar

Plaintiff was prescribed Prevpak, an antibiotic, and

additional testing was ordered.

(Tr. 509.)

Plaintiff returned to Dr. Hoja on December 15, 2009, who
noted plaintiff to continue to have tenderness and limited range of
motion about the lumbar spine.
noted.

Depression and anxiety were also

Dr. Hoja referred plaintiff to Dr. Ali regarding her recent

diagnosis of hepatitis C.

(Tr. 577.)

On January 18, 2010, Dr.

Hoja determined to order additional hepatitis C testing.
576.)

(Tr.

On February 15, 2010, Dr. Hoja noted plaintiff not to have

begun treatment for hepatitis C.

(Tr. 575.)

Plaintiff returned to Dr. Graham on February 22, 2010,
and reported weakness and purple discoloration of her nails.
Plaintiff

was

concerned

about

low

oxygen

levels.

reported continued wheezing but decreased coughing.

Plaintiff
Plaintiff

reported continued smoking of one-half pack of cigarettes a day.
Physical examination was unremarkable.

- 27 -

Plaintiff underwent an

exercise oximetry that same date which showed no significant
desaturation and no significant increase in heart rate. Dr. Graham
noted an exercise oximetry performed in October 2009 to likewise be
normal.

Dr. Graham also noted that PFTs dated October 2009 showed

only mild obstruction but with air trapping and diffusion capacity
at fifty-five percent of predicted; and that arterial blood gas
levels were normal but had findings consistent with marked tobacco
abuse.

Plaintiff did not undergo the chest x-ray as previously

ordered by Dr. Graham.

Dr. Graham ordered a CT scan of the chest.

Dr. Graham changed plaintiff’s medication from Spiriva to Atrovent,
but otherwise instructed plaintiff to continue on her current
medications.

Dr. Graham emphasized to plaintiff the importance of

smoking cessation.

(Tr. 499-500.)

A CT scan of the chest taken March 1, 2010, showed
pulmonary emphysematous disease with mild bleb/bullous formation in
the lung apices.

Stable appearance of the pleural parenchymal

thickening was noted.

(Tr. 654.)

Plaintiff returned to Dr. Hoja on March 15, 2010, who
noted

plaintiff

not

to

have

begun

hepatitis

C

treatment.

Plaintiff’s history of pneumothorax and lung mass was noted.

Dr.

Hoja continued to note tenderness and limited range of motion about
the lumbar spine, as well as continued anxiety and depression.
(Tr. 574.)
From May through September 2010, plaintiff visited Dr.

- 28 -

Hoja

on

a

monthly

basis

for

follow

up

of

her

conditions.

Throughout this period, Dr. Hoja continued to note limited range of
motion and tenderness about the lumbar spine, as well as continued
depression and anxiety.

During this period, Dr. Hoja monitored

plaintiff’s medications and diagnosed plaintiff with hypertension,
depression, COPD, restless leg syndrome, lumbar pain, asthma,
hepatitis C, and emphysema.
IV.

(Tr. 568-72.)

The ALJ’s Decision

The ALJ found that plaintiff met the insured status
requirements of the Social Security Act through March 31, 2008.
The ALJ found that plaintiff had not engaged in substantial gainful
activity since February 1, 2007.

The ALJ found plaintiff’s COPD,

depression, and degenerative disc disease of the lumbar spine to
constitute severe impairments but that plaintiff did not have an
impairment or combination of impairments that met or medically
equaled a listed impairment in 20 C.F.R. Part 404, Subpt. P, App.
1.

(Tr. 13-17.)

The ALJ determined plaintiff to have the residual

functional capacity (RFC) to perform light work “except that she
must avoid concentrated exposure to heat, cold, and vibrations, and
even moderate exposure to pulmonary irritants including dusts,
odors, gas, fumes and the like.

In addition, she is limited to

simple, routine, and repetitive tasks.”

(Tr. 17.)

The ALJ

determined that plaintiff was unable to perform any past relevant
work.

Considering

plaintiff’s

- 29 -

age,

limited

education,

work

experience, and RFC, the ALJ determined that

plaintiff could

perform work existing in significant numbers in the national
economy based on vocational expert testimony, and specifically,
work as a cashier, a small product assembler, and a hand packager.
The ALJ thus determined plaintiff not to be disabled through the
date of his decision.

(Tr. 17-21.)
V.

Discussion

To be eligible for Social Security Disability Insurance
Benefits and Supplemental Security Income under the Social Security
Act, plaintiff must prove that she is disabled.

Pearsall v.

Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Secretary
of Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992).

The

Social Security Act defines disability 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."
423(d)(1)(A), 1382c(a)(3)(A).
disabled

"only

if

[her]

42 U.S.C. §§

An individual will be declared

physical

or

mental

impairment

or

impairments are of such severity that [she] is not only unable to
do

[her]

education,

previous
and

work

work

but

cannot,

experience,

engage

considering
in

any

[her]

other

age,

kind

of

substantial gainful work which exists in the national economy." 42
U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).

- 30 -

To

determine

whether

a

claimant

is

disabled,

Commissioner engages in a five-step evaluation process.

the

See 20

C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-42
(1987).

The Commissioner begins by deciding whether the claimant

is engaged in substantial gainful activity.
working, disability benefits are denied.
decides

whether

the

claimant

has

a

If the claimant is

Next, the Commissioner
“severe”

impairment

or

combination of impairments, meaning that which significantly limits
her ability to do basic work activities.

If the claimant's

impairment(s) is not severe, then she is not disabled.

The

Commissioner then determines whether claimant's impairment(s) meets
or equals one of the impairments listed in 20 C.F.R., Subpart P,
Appendix 1.

If claimant's impairment(s) is equivalent to one of

the listed impairments, she is conclusively disabled.

At the

fourth step, the Commissioner establishes whether the claimant can
perform her past relevant work.
disabled.

If so, the claimant is not

Finally, the Commissioner evaluates various factors to

determine whether the claimant is capable of performing any other
work in the economy.

If not, the claimant is declared disabled and

becomes entitled to disability benefits.
The decision of the Commissioner must be affirmed if it
is supported by substantial evidence on the record as a whole.

42

U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971);
Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002).

- 31 -

Substantial

evidence is less than a preponderance but enough that a reasonable
person would find it adequate to support the conclusion.
v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).

Johnson

This “substantial

evidence test,” however, is “more than a mere search of the record
for evidence supporting the Commissioner’s findings.”

Coleman v.

Astrue, 498 F.3d 767, 770 (8th Cir. 2007) (internal quotation marks
and citation omitted).

“Substantial evidence on the record as a

whole . . . requires a more scrutinizing analysis.”

Id. (internal

quotation marks and citations omitted).
To

determine

whether

the

Commissioner's

decision

is

supported by substantial evidence on the record as a whole, the
Court must review the entire administrative record and consider:
1.

The credibility findings made by the ALJ.

2.

The plaintiff's vocational factors.

3.

The medical evidence from treating and
consulting physicians.

4.

The plaintiff's subjective complaints
relating to exertional and non-exertional
activities and impairments.

5.

Any corroboration by third parties of the
plaintiff's impairments.

6.

The testimony of vocational experts when
required which is based upon a proper
hypothetical question which sets forth
the claimant's impairment.

Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86
(8th Cir. 1992) (quoting Cruse v. Bowen, 867 F.2d 1183, 1184-85
(8th Cir. 1989)).

- 32 -

The Court must also consider any evidence which fairly detracts
from the Commissioner’s decision.

Coleman, 498 F.3d at 770;

Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999).

However,

even though two inconsistent conclusions may be drawn from the
evidence, the Commissioner's findings may still be supported by
substantial evidence on the record as a whole.

Pearsall, 274 F.3d

at 1217 (citing Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir.
2000)).

“[I]f there is substantial evidence on the record as a

whole, we must affirm the administrative decision, even if the
record could also have supported an opposite decision.” Weikert v.
Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal quotation
marks and citation omitted); see also Jones ex rel. Morris v.
Barnhart, 315 F.3d 974, 977 (8th Cir. 2003).
For

the

following

reasons,

the

Commissioner’s

final

decision to deny plaintiff’s claims for disability is not supported
by substantial evidence on the record as a whole, and the matter
should be remanded for further proceedings.
Plaintiff first claims that the ALJ erred at Step 2 of
the sequential analysis by failing to consider and discuss whether
plaintiff’s

diagnosed

conditions

of

borderline

intellectual

functioning and mood disorder should be determined to be severe
impairments.
the

Plaintiff contends that such failure runs counter to

Appeals

determination.

Council’s

specific

directive

to

Plaintiff’s argument is well taken.

- 33 -

make

such

a

As noted supra, on March 23, 2010, the Appeals Council
remanded the ALJ’s initial adverse decision with instructions for
further proceedings. In its Order Remanding Case to Administrative
Law Judge, the Appeals Council specifically instructed the ALJ,
upon remand, to resolve the following issue created by the initial
May 2009 decision:
The decision does not contain a complete
evaluation
of
the
claimant’s
mental
impairments. As a result of a psychological
evaluation,
Dr.
Lanpher
diagnosed
mood
disorders, found the claimant had a GAF score
of 47 [sic] and was moderately or markedly
impaired in several functional areas.
The
hearing decision provides no rational [sic]
for assertion that his opinions are based
solely
on
the
claimant’s
subjective
complaints.
Further consideration of this
impairment, with specific consideration of
whether or not it is a severe impairment, is
necessary.
In addition, Dr. Lanpher opined
that the claimant had borderline intellectual
functioning
and
possible
mild
mental
retardation. While no psychological testing
was done, this appears to be consistent with
school records . . . which show the claimant
received extremely poor grades before dropping
out of school.
The decision does not
adequately assess this evidence.
Further
consideration
of
the
severity
of
the
claimant’s mental impairments, is necessary.
(Tr. 110.)

(Citations omitted.)

In order to resolve the issue, the Appeals Council specifically
instructed that
[u]pon remand the Administrative Law Judge
will:
- 34 -

. . .
Obtain additional evidence concerning the
claimant’s mental impairments in order to
complete
the
administrative
record
in
accordance with the regulatory standards
regarding
consultative
examinations
and
existing medical evidence.
The additional
evidence
should
include
a
consultative
examination with psychological testing and, if
warranted, medical source statements about
what the claimant can still do despite the
impairment.
(Tr. 111.)

(Emphasis added.)

(Citation omitted.)

A review of the record upon remand, however, shows the ALJ to have
wholly failed to comply with the Appeals Council’s directive that
additional

evidence

impairments.

be

obtained

regarding

plaintiff’s

mental

Instead, the ALJ appeared to consider only that

evidence which was before him at the time of the original decision,
with no consultative examination, psychological testing, or medical
source statements sought and/or obtained.

In addition, in his

written decision, the ALJ wholly failed to address the issue
recognized by the Appeals Council to have been created by the
original decision, that is, that he specifically consider whether
plaintiff’s mood disorder constituted a severe impairment, and
further, that he further assess plaintiff’s borderline intellectual
functioning in conjunction with consistent educational evidence.22
22

Indeed, the ALJ does not even mention plaintiff’s school
records, which the Appeals Council noted to be consistent with a
diagnosis of borderline intellectual functioning. While the
Appeals Council noted the first decision not to “adequately
assess” such evidence, the second decision here does not assess
- 35 -

Given the ALJ’s wholesale failure to comply

in any

respect with the Appeals Council’s order of remand regarding
assessing the severity of plaintiff’s mood disorder and borderline
intellectual functioning, remand is appropriate and necessary for
the ALJ to so comply with the Appeals Council’s directives.

See

Hulen v. Astrue, ___ F. Supp. 2d ___, 2012 WL 6604569, at *5 (S.D.
Iowa Dec. 19, 2012); Mounce v. Astrue, No. 4:07-CV-1413 CAS, 2008
WL 4203022, at *10 (E.D. Mo. Sept. 11, 2008).

Cf. Silk v. Astrue,

509 F. Supp. 2d 779, 785 (S.D. Iowa 2007) (noting ALJ erred by
failing to comply with instructions of either the court or of the
Appeals Council in its remand order).
When an ALJ fails in his duty to fully and fairly develop
the record on a crucial issue, and the issue is left “unexplored by
the ALJ,” no confidence lies in the reliability of the RFC upon
which the ALJ bases his decision.
839 (8th Cir. 2004).

Snead v. Barnhart, 360 F.3d 834,

Because the ALJ here failed to fully and

fairly develop the record as to plaintiff’s mental impairments,
contrary to the directive of the Appeals Council, it cannot be said
that the ALJ’s resulting mental RFC determination is supported by
substantial evidence on the record.

Id.

Finally, because an ALJ’s failure to properly evaluate a
claimant’s mental impairments may influence his evaluation of the
claimant’s subjective complaints, it cannot be said that the ALJ’s

this evidence at all.
- 36 -

adverse credibility determination here is supported by substantial
evidence.

Pratt v. Sullivan, 956 F.2d 830, 836 (8th Cir. 1992).
VI.

Conclusion

The ALJ here failed to comply with the directive of the
Appeals Council by failing to fully and fairly develop the record
with respect to plaintiff’s mental impairments and by failing to
undergo the required specific analysis with respect to plaintiff’s
borderline intellectual functioning and mood disorder. Because the
record was incomplete with respect to such impairments, the ALJ’s
resulting credibility and RFC determinations were not supported by
substantial evidence on the record as a whole.

Accordingly, the

Commissioner’s decision should be reversed and remanded for further
proceedings consistent with this opinion and in accordance with the
March 2010 directive of the Appeals Council.
Therefore,
IT

IS

HEREBY

Commissioner

is

REVERSED

ORDERED
and

that

this

the

cause

decision

is

REMANDED

of

the

to

the

Commissioner for further proceedings.
Judgment shall be entered accordingly.

UNITED STATES MAGISTRATE JUDGE

Dated this

8th

day of April, 2013.
- 37 -