Gribble v. Colvin

Filing 23

MEMORANDUM AND ORDER re: 15 SOCIAL SECURITY BRIEF filed by Plaintiff David Gribble, 22 SOCIAL SECURITY CROSS BRIEF re 15 SOCIAL SECURITY BRIEF filed by Defendant Carolyn W. Colvin..IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED and that this case is REMANDED to the Commissioner for further proceedings as discussed above. Signed by Magistrate Judge Thomas C. Mummert, III on 2/26/15. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
DAVID GRIBBLE,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Case number 1:14cv0027 TCM

MEMORANDUM AND ORDER
This 42 U.S.C. §§ 405(g) and 1383(c)(3) action for judicial review of the final
decision of Carolyn W. Colvin, the Acting Commissioner of Social Security (Commissioner),
denying the application of David Gribble (Plaintiff) for supplemental security income (SSI)
under Title XVI of the Social Security Act (the Act), 42 U.S.C. § 1381-1383b, is before the
undersigned Magistrate Judge pursuant to the written consent of the parties. See 28 U.S.C.
§ 636(c).
Procedural History
Plaintiff applied for SSI in August 2010, alleging he was disabled as of October 8,
2009,1 by bipolar disorder, depression, anxiety, and a left shoulder problem.2 (R.3 at 168-72,

1

Prior applications for SSI and for disability insurance benefits (DIB) under Title II of the
Act, 42 U.S.C. § 401-433, were denied at the initial level on October 7, 2009.
2

In August 2010, Plaintiff also applied for DIB; however, this application was denied on the
grounds that he had not worked long enough to qualify. Plaintiff does not challenge the denial.
3

References to "R." are to the administrative record filed by the Commissioner with her

answer.

189.) His application was denied initially, on reconsideration, and following a June 2012
video hearing before Administrative Law Judge (ALJ) Thomas Cheffins. (Id. at 5-18, 68-97,
103-05, 109-11.) The Appeals Council denied Plaintiff's request for review, effectively
adopting the ALJ's decision as the final decision of the Commissioner. (Id. at 1-3.)
Testimony Before the ALJ
Plaintiff, represented by counsel, and Michael Lala, C.R.C.,4 testified at the
administrative hearing.
Plaintiff testified that he was then 45 years old and lives in a one-story house with his
mother, sister, brother-in-law, and their three children. (Id. at 32, 33.) The household income
is from his sister's wages and his mother's fixed income. (Id. at 35.) He is 5 feet 8 inches tall
and weighs 165 pounds. (Id. at 33.) He is right handed. (Id. at 34.) He completed the tenth
grade and never obtained a General Equivalency Degree (GED). (Id.) He completed training
as a truck driver, but his commercial driver's license is no longer valid. (Id.)
Plaintiff stopped working in 2007 due to problems with his shoulders. (Id. at 36-37.)
He testified that his most serious health problems currently are the herniated disc in his neck,
pain in his shoulders, and shortness of breath. (Id. at 37.)
The longest job Plaintiff has held was doing auto body work. (Id.) He cannot
remember how long he held that job, but it was full-time work. (Id. at 38.) He was "pretty
sure" it lasted longer than six months. (Id.) This job required that he grind out welds, put
body filler in, prime, and prep all the doors on ambulances. (Id. at 62-63.)

4

Certified Rehabilitation Counselor.
-2-

Plaintiff was incarcerated from 2000 to 2004 for child support. (Id. at 37, 56.) He was
also incarcerated in the late 80s or early 90s for burglary and stolen property. (Id. at 57.)
Plaintiff has received no medical care since moving to Missouri because he just
recently got his Medicaid coverage switched from Ohio to Missouri and had to have his
medical records sent from Ohio. (Id. at 39, 41-42.) He moved to Missouri after his mother
became sick.5 (Id. at 43.) He now has Medicaid and has appointments for both his physical
and mental health. (Id.) He was also going to have restarted the medication that he had been
placed on when in an Ohio psychiatric hospital in July 2011. (Id. at 42-43.) He thought he
had been out of his medications for six or seven months. (Id. at 44.)
To try to relieve his shoulder and neck pain, he has been taking over-the-counter
medications and using heating pads and ice packs. (Id. at 44-45.) He is in constant pain, but
the intensity varies with the weather. (Id. at 45.) He had surgery on his left shoulder, but it
did not help. (Id. at 53.)
Asked about how he spends his day, Plaintiff explained that he does not do a lot. (Id.
at 46.) He might see friends. (Id.) He does not do a lot of walking because he gets short of
breath. (Id. at 46, 47.) He tries to avoid lifting anything because he does not want to hurt his
shoulders and neck. (Id. at 46.) On a good day, he cannot stand for longer than thirty
minutes before having to sit down and lean back. (Id. at 48.) He cannot sit comfortably for
a long period of time, even in a padded office chair. (Id. at 49.) He cannot raise his arms far

5

This was in August 2011. (Id. at 225.)
-3-

above his head. (Id. at 50.) His hands become numb, causing him to lose his grip and drop
things. (Id.) When this happens, he has to rub his hands. (Id. at 51.)
Also, Plaintiff becomes very nervous and shakes when he is around people. (Id. at 52.)
He is frequently depressed. (Id. at 53.)
After the ALJ noted that Plaintiff refused to stop smoking, Plaintiff testified that he
has "slowed down." (Id. at 56.) He has gone from two to three packs of cigarettes a day to
five or six cigarettes. (Id.) Asked about a reference in an evaluation report to Plaintiff having
abstained from drugs for four years and a July 2010 urine drug screen that tested positive for
marijuana, Plaintiff was unable to explain the inconsistency. (Id. at 59.) Plaintiff did
remember telling a doctor in July 2011 that he was using alcohol and cocaine again. (Id. at
60.) He was going through a rough time then. (Id.) Now, he only occasionally has a beer
and does not use cocaine or marijuana. (Id.)
Mr. Lala, testifying without objection as a vocational expert (VE), classified Plaintiff's
past job as an auto body worker helper as medium, unskilled and with a specific vocational
preparation (SVP) level of two. (Id. at 62.) The Dictionary of Occupational Titles (DOT)
number is 807.687-010. (Id.)
He was then asked to assume a claimant of Plaintiff's age, education, and past work
experience who can perform work at the medium exertional level with additional limitations
of not climbing ladders, ropes, or scaffolds; occasionally reaching overhead with the left
upper extremity; and being restricted to work involving simple to moderately complex tasks

-4-

with occasional interaction with coworkers and the public. (Id. at 63.) The VE replied that
this claimant can perform Plaintiff's past relevant work. (Id. at 64.)
If the hypothetical claimant is limited to work at the light exertional level but has the
other limitations of the first hypothetical, the claimant cannot perform Plaintiff's past relevant
work. (Id.) This person can, however, work as a plastic hospital products assembler, bench
assembler, or agricultural bench assembler. (Id. at 65.) If the hypothetical claimant's nonexertional limitations are restrictions to work involving only simple routine and repetitive
tasks and the other descriptions remained, this claimant will be able to perform these three
jobs. (Id.)
The VE further stated that his testimony is consistent with the DOT and with his
training, education, and experience in the field. (Id.)
Medical and Other Records Before the ALJ
The documentary record before the ALJ included forms completed as part of the
application process, documents generated pursuant to Plaintiff's application, records from
health care providers, and assessments of his physical and mental abilities.
When applying for SSI, Plaintiff completed a Disability Report, stating that he had
stopped working on June 1, 2007, because of his condition. (Id. at 189.) He had a job in
2005 doing auto body work for eight hours a day, five days a week. (Id. at 190.) His
earnings for that job totaled $8,351. (Id.) He did not otherwise describe the work.
On a Function Report, Plaintiff described his daily activities as including fixing lunch,
watching television, playing with his children, and visiting with friends. (Id. at 254.) His

-5-

pain interferes with his sleep. (Id.) He needs to be reminded of appointments and to take his
medications. (Id. at 255.) He has no problem with taking care of his personal hygiene. (Id.)
He can pay bills, count change, and handle a savings account. (Id. at 257.) His impairments
adversely affect his abilities to lift, understand, remember, walk, reach, and concentrate. (Id.
at 258.) They do not affect his abilities to, among other things, stand, sit, use his hands, or
complete tasks. (Id.)
The relevant medical records before the ALJ are summarized below in chronological
order and begin with those of the Ohio Department of Rehabilitation and Correction.
When undergoing a mental health evaluation in January 2000, Plaintiff complained
of high stress, sleeplessness, and restlessness since arrival at the correctional institution one
month earlier to serve a sentence imposed on a guilty plea to burglary. (Id. at 281-83, 409-11,
433.) He was worried about his pregnant fiancé and was not sure he needed mental health
services. (Id.) He started drinking at 14 and drank heavily from 27 to 31. (Id.) He smoked
approximately one ounce of marijuana a week, and estimated this to be 40 to 50 joints. (Id.)
He had used cocaine and acid, but not a lot and not for the past year. (Id.) The psychologist,
George E. North, Ph.D., diagnosed Plaintiff with dysthymia and personality disorder. (Id. at

-6-

282.) His current Global Assessment of Functioning (GAF) was 55.6 (Id. at 283.) A
psychiatric consultation was recommended. (Id. at 433.)
The following month, Plaintiff referred himself for mental health services for
complaints of insomnia, feelings of depression, and decreased concentration and energy. (Id.
at 464-65.) He was diagnosed with an adjustment disorder, depressed mood, and dysthmic
disorder and prescribed Paxil. (Id. at 463.)
In March, Plaintiff was prescribed clonidine (for high blood pressure) and Remeron
(an antidepressant). (Id. at 336-49.) His current GAF was in the 61 to 70 range.7 (Id. at
425.) In September, Plaintiff complained of being on edge and not sleeping well. (Id. at
447.) His Remeron was increased. (Id.) In December, he was doing okay; his depression
was stable and he had been off medications for two weeks. (Id. at 441-42.)
In January 2001, Plaintiff admitted he was noncompliant with his medication and
stated he did not feel like he needed it anymore. (Id. at 439-40.) He appeared to be stable.
(Id. at 439.) His name was removed from mental health caseload. (Id.) In March, Plaintiff
requested to be placed back on the mental health caseload as he was having difficulties with
6

"According to the Diagnostic and Statistical Manual of Mental Disorders 32 (4th Ed. Text
Revision 2000) [DSM-IV-TR], the [GAF] is used to report 'the clinician's judgment of the
individual's overall level of functioning,'" Hudson v. Barnhart, 345 F.3d 661, 663 n.2 (8th Cir.
2003), and consists of a number between zero and 100 to reflect that judgment, Hurd v. Astrue, 621
F.3d 734, 737 (8th Cir. 2010). A GAF score between 51 and 60 indicates "[m]oderate 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 co-workers)."
DSM-IV-TR at 34 (emphasis omitted).
7

A GAF score between 61 and 70 indicates "[s]ome mild symptoms (e.g., depressed mood
and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g.,
occasional truancy, or theft within the household), but generally functioning pretty well, has some
meaningful interpersonal relationships." DSM-IV-TR at 34 (emphasis omitted).
-7-

mood and sleep and with getting along with others. (Id. at 431.) He was not referred to a
psychologist because he walked out of the room during the interview without explanation,
his need for services seemed marginal, and his past medication compliance was not very
good. (Id. at 431, 435.) In August, Plaintiff reportedly was not getting depressed, not having
trouble with inmates or staff, and not having personal problems. (Id. at 430.)
Throughout his incarceration, Plaintiff was prescribed Motrin and Midrin for
migraines. (See id. at 273-80, 285-91, 295-97.)
When released, in October 2002, Plaintiff was taking no medications and reportedly
had no current medical problems. (Id. at 272.)
Plaintiff was again incarcerated in February 2004. (Id. at 379-80.) On a medical
screening form, his list of current health problems included only migraines and pain in his left
shoulder. (Id.) He had an IQ score of 102 on a GAMA test.8 (Id. at 491, 494.) During his
confinement, Plaintiff was diagnosed with migraine headaches, which were treated with
ibuprofen and Midrin. (Id. at 360-65.) He was released in June 2004. (Id. at 371.)
In February 2006, Plaintiff went to the Paulding County Hospital (PCH) emergency
room for complaints of a migraine headache for the past three days accompanied by nausea
and some light sensitivity and unrelieved by Tylenol. (Id. at 919-20.) The pain was a ten on
a ten-point scale. (Id. at 919.) After being given Toradol (a nonsteroidal anti-inflammatory

8

"The General Ability Measure for Adults (GAMA) is a brief, self-administered, nonverbal
measure of intelligence . . . . It . . . is most appropriate when a quick estimate of general cognitive
ability is needed; . . . e.g., with prison or military populations." Jack A. Naglierei, Ph.D., and
Achilles N. Bardos, Ph.D. GAMA, http://www.unco.edu/cebs/schoolpsych/faculty/bardos/gama.html
(last visited Feb. 24, 2015).
-8-

drug (NSAID)), Phenergan (an antihistamine), and Nubain (an opioid pain medication), his
pain was reduced to a four or five and he was discharged home. (Id. at 920.)
Plaintiff returned to the PCH emergency room on April 29 after having left-sided chest
pain for the past hour. (Id. at 557-61, 870-72, 921-28.) The pain was a ten on a ten-point
scale. (Id. at 559.) He was noted to be in severe distress. (Id.) On examination, he had a
regular rate and rhythm to his heart and no murmurs, gallops, or rubs. (Id. at 560.) He was
placed on oxygen and given intravenous drugs to help with his hyperventilation and
breathing. (Id.) An electrocardiogram (EKG) showed a normal sinus rhythm with a baseline
variation caused by Plaintiff's shaking. (Id.) A cardiac profile was normal; a chest x-ray
showed no acute disease. (Id.) Another EKG was later given, showing sinus bradycardia
with no ischemic changes. (Id.) Plaintiff was admitted for observation, and then left against
medical advice. (Id. at 560-61, 923.)
He returned, however, the next day. (Id. at 929-35.) His pain was primarily in the
epigastric region and lower substernal area. (Id. at 929.) It did not radiate, but was a ten.
(Id.) He had a normal EKG and negative lab work, urine drug screen, and urinalysis. (Id. at
929, 932-35.) He was given Lidocaine, Maalox, Demerol, and Phenergan and discharged
home with prescriptions for Zantac and with instructions to also take over-the-counter
Maalox and to see his primary care physician in one week. (Id. at 930-31.)
Plaintiff was seen in July at the emergency room of Van Wert County Hospital for
complaints of pain in his left eye after being hit in the face with carpet as he was moving it.
(Id. at 504-11.) He was diagnosed with an acute corneal abrasion to his left eye, treated with

-9-

eye drops, and discharged with a prescription for Vicodin (a combination of acetaminophen
and hydrocodone). (Id. at 507.)
In January 2007, Plaintiff was seen at the PCH emergency room for complaints of left
shoulder pain after being struck with a beam the night before. (Id. at 795, 936-38.) He was
tender over the upper and posterior portion of the shoulder and held his left arm against his
chest. (Id. at 936.) X-rays taken of Plaintiff's left shoulder were negative. (Id. at 795, 938.)
X-rays taken of his cervical spine showed degenerative changes. (Id. at 795.) He was
diagnosed with a contusion of the left shoulder; given prescriptions for Toradol, Aleve (a
NSAID), and Darvocet9; and told to alternate the application of ice and heat to the shoulder
and to return in four days. (Id. at 936-37.) Plaintiff did return, reporting that the Darvocet
was not working. (Id. at 939-41.) He was not taking the Aleve, as he had been instructed.
(Id. at 939.) He had a weak grip in his left hand and described some numbness and tingling
in the fingers. (Id.) A magnetic resonance imaging (MRI) of the shoulder was scheduled.
(Id.) If positive, Plaintiff was to be referred to an orthopedic doctor. (Id.) His diagnosis was
left brachial neuritis and contusion of the left shoulder. (Id. at 940.)
The MRI, taken the next day, revealed arthritic changes of the acromioclavicular (AC)
joint with capsular hypertrophy and inflammatory edema infiltrating the bony structures about
the joint margins and rotator cuff tendonitis with possible subtle partial thickness
intrasubstance tear supraspinatous. (Id. at 942.)

9

Darvocet is a combination of acetaminophen and propoxyphene, a narcotic pain reliever.
See Darvocet, http://www.drugs.com/search.php?searchterm=darvocet (last visited Feb. 11, 2015).
It was withdrawn from the United States market in November 2010. Id.
- 10 -

Plaintiff was admitted on March 14 to Defiance Regional Medical Center (DRMC)
after going to the emergency room with complaints of increasing depression and passive
suicidal thoughts. (Id. at 512-19, 636-48, 708-20, 1062-63.) Lately, he had been drinking
until he passed out. (Id. at 515.) He had an eight-year old child and a seventeen-year old
daughter. (Id.) On admission, he had "marked psychomotor retardation," poor eye contact,
a monotone and slow speech, a flat affect, an "intensively depressed" mood, and guarded
insight and judgment. (Id. at 513.) He was oriented to time, place, and person. (Id.) He
could recall past and present events. (Id.) He had no hallucinations or delusions. (Id.) His
intelligence seemed average. (Id.) He felt hopeless, worthless, and guilty. (Id.) He had little
energy and a poor appetite. He was diagnosed by the admitting psychiatrist, Melchor
Mercado, M.D., with bipolar disorder, not otherwise specified, rule out major depressive
disorder, alcohol abuse, and rule out substance induced mood disorder. (Id.) His GAF was
40.10 (Id.) He was started on lithium (an antidepressant) and Lamictal (an anticonvulsant).
(Id.) The lithium dosage was later increased. (Id. at 512.) The next day, he was quiet, calm,
and had fair eye contact. (Id. at 516.) A recreational therapy assessment listed his hobbies
as working on cars and doing carpentry work. (Id. at 1062.) Later in the day, he developed
a headache and was given Darvocet. (Id. at 517.) He slept without interruption. (Id. at 518.)
On March 16, he requested to be discharged so he could return to his job as a maintenance
worker. (Id. at 512.) He was to be followed up at the Maumee Valley Guidance Center;

10

A GAF score between 31 and 40 is indicative of "[s]ome impairment in reality testing or
communication . . . OR major impairment in several areas, such as work or school, family relations,
judgment, thinking, or mood . . . ." DSM-IV-TR at 34 (emphasis omitted).
- 11 -

however, this required a Defiance County address and he did not have one. (Id. at 512, 518.)
He declined to go to the Paulding County Mental Health Center and could not afford to pay
full price at Maumee. (Id. at 518-19.) Consequently, he was discharged without follow-up.
(Id. at 519.)
Complaining of abdominal and epigastric pain after taking three Advil the night
before, Plaintiff went to the PCH emergency room on May 26. (Id. at 943-47.) He had a full
range of motion in his extremities and normal x-rays of the chest and abdomen. (Id. at 944,
947.) He was given Maalox, Lidocaine, and Donnatal (a barbiturate); diagnosed with acute
gastritis, secondary to Advil; and advised to take Maalox and Pepcid. (Id. at 944.)
In October, Plaintiff consulted Bryan D. Kaplansky, M.D., for complaints of left
shoulder girdle pain. (Id. at 587-88, 898-99.) The pain had begun three years earlier
following a truck wreck and had been recently exacerbated at work. (Id. at 587.) The pain
radiated to his hand and fingers. (Id.) He also had neck pain, which was mild. (Id.) This
pain was aggravated by shoulder motion. (Id.) On examination, Plaintiff had a normal gait,
balance, and coordination. (Id.) There was no asymmetry of his upper limbs and no atrophy.
(Id.) There was diffuse hypoesthesia (reduced sense of touch or sensation) in his left upper
limb. (Id.) He had a positive Spurling's maneuver on the left and not on the right.11 (Id. at
588.) Plaintiff's shoulder motion was restricted in all planes. (Id.) Also, there was
"considerate subacromial tenderness on the left" and "milder bicipital tendon tenderness."

11

The Spurling's maneuver, or test, is for the evaluation of cervical nerve root impingement
and is considered positive when the maneuver elicits typical radicular arm pain. Spurling Test,
http://www.medilexicon.com/medicaldictionary.php?t=90833 (last visited Feb. 19, 2015).
- 12 -

(Id.) Plaintiff was diagnosed with left sided rotator cuff tendinopathy and left cervical
radiculopathy.

(Id.)

He was given a steroid injection without complications and a

prescription for Lodine (an NSAID). (Id.) Dr. Kaplansky recommended cervical spine xrays and an MRI; however, Plaintiff deferred a decision because he was not currently
working and was without insurance. (Id.)
Plaintiff returned to Dr. Kaplansky in January 2008, reporting that the shoulder
injection had only partially helped. (Id. at 589, 900.) Plaintiff could not afford the Lodine.
(Id.) He had tried to return to work, but was prevented from doing so by the shoulder pain.
(Id.) On examination, he was as before. (Id.) His options were discussed. (Id.)
X-rays of his lumbar spine taken on February 2 to investigate his complaints of
chronic back pain revealed moderate diffuse spondylosis but were otherwise negative. (Id.
at 584, 895.) X-rays of his left shoulder were within normal limits. (Id. at 585, 896.)
On February 19, Plaintiff complained to Dr. Kaplansky of a painful range of motion
in his left shoulder in all planes. (Id. at 590, 901.) An MRI was still desired, and Plaintiff
was to investigate getting on Medicaid as soon as possible. (Id.)
Plaintiff was seen at the PCH emergency room on March 20 for complaints of an
intermittent headache for the past week that was worse that day and was accompanied by
vomiting, lightheadedness, and dizziness. (Id. at 948-52.) He was diagnosed with migraines;
given Toradol, Phenergan, and Nubain; and discharged with instructions to follow up with
his primary care physician in one or two days if he did not improve. (Id. at 950, 952.)

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When seen again at the PCH emergency room on July 2 for a possible infection,
Plaintiff complained of a headache and of pain in his right hip that radiated up to his back.
(Id. at 953-58.) He walked with a limp. (Id. at 953.) X-rays of his lumbar spine showed mild
degenerative joint disease. (Id. at 958.)
Plaintiff returned to the emergency room five days later for treatment of a migraine
headache. (Id. at 959-63.) He was treated with medication and discharged home in fair
condition. (Id. at 961, 963.)
Plaintiff consulted Wendell Spangler, M.D., on November 10 to establish a primary
care relationship for treatment of his left shoulder and neck pain. (Id. at 551-52, 825-26.)
He explained that the pain had begun four or five years earlier following a motor vehicle
accident. (Id. at 552.) Heat sometimes helped; Vicodin, Flexeril, and NSAIDs did not help.
(Id.) His medical records were to be obtained. (Id.) X-rays taken five days later of his left
clavicle and left shoulder were normal. (Id. at 619, 795, 966.) X-rays of his cervical spine
showed degenerative changes. (Id. at 619.)
Nine days later, Plaintiff saw Dr. Spangler to request a work release slip until his left
shoulder problem had resolved. (Id. at 550, 824.) It was noted that he worked construction,
lifting, building walls, and hanging drywall. (Id.) He was given a work release until he saw
an orthopedic doctor. (Id.)
On December 10, Plaintiff reported to Dr. Spangler that Darvocet and Flexeril did not
really help. (Id. at 550, 824.) He was prescribed Percocet. (Id.)

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Two days later, Plaintiff consulted Steven P. Haman, M.D., with the Orthopaedic
Institute of Ohio, about his severe, sharp left shoulder pain. (Id. at 632-33, 745-46.) He was
to have an MRI of his shoulder and then return for a follow-up appointment. (Id. at 633.)
The MRI, taken on December 27, revealed tendonopathy with a small amount of fluid in the
subacromial/subdeltoid bursa, possibly secondary to bursitis or to tendonopathy, and bone
edema and degenerative changes of the AC joint. (Id. at 968.)
On January 20, 2009, Plaintiff consulted Michael J. Muha, M.D., also with the
Orthopaedic Institute, about pain in the anterior aspect of his left shoulder for the past five
years. (Id. at 528-30.) He explained that he had had a cortisone injection in the shoulder, but
it afforded him no relief. (Id. at 528.) The pain interfered with his activity and was provoked
by overhead positioning. (Id.) With the exception of showing some arthritic changes of the
AC joint, x-rays of the shoulder were negative. (Id.) An MRI of the shoulder revealed
"[t]endinopathy with small amount of fluid in the subacromial/subdeltoid bursa" and "[b]one
edema and degenerative changes of the AC joint." (Id.) On examination, Plaintiff had a fair
posture, non-antalgic gait, supple neck, limited cervical motion, and pain with cervical
foraminal closure maneuvers to the left that apparently radiated to the superior aspect of his
shoulder. (Id.) There was no swelling or deformity of the shoulder, but there was
subacromial tenderness, pain with impingement testing, a little tenderness over the AC joint,
and pain with cross arm testing. (Id. at 528-29.) He had a good active range of motion in the
left shoulder and a full range of motion and strength in his right shoulder. (Id. at 529.) Dr.
Muha diagnosed Plaintiff with shoulder bursitis/tendinitis, cervical degenerative disc disease,

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and cervicalgia. (Id.) He administered a steroid injection to Plaintiff's left shoulder. (Id. at
529-30.) Plaintiff was to follow-up as needed. (Id. at 530.)
The next day, Plaintiff cancelled his appointment with Dr. Spangler. (Id. at 549.) He
did not show for the appointment rescheduled for the next week. (Id.)
Plaintiff returned to Dr. Muha on March 17, reporting that the injection had given him
no relief. (Id. at 526-27, 630-31, 743-44.) On examination, he was as before. (Id. at 526.)
He was diagnosed with joint pain in the shoulder and cervical degenerative disc disease. (Id.
at 527.) He was to be scheduled for an MRI of his cervical spine. (Id.)
When next seeing Dr. Muha, on May 19, Plaintiff had not yet had the MRI. (Id. at
524-25, 624-25, 736-37, 740.) On examination, his left rotator cuff strength was intact, but
he had some give way weakness with strength testing. (Id. at 525.) Plaintiff requested
surgical intervention. (Id.) Dr. Muha recommended the MRI before considering surgery.
(Id.) The MRI of his cervical spine, taken on June 3, showed disc disease primarily at C4-C5
and C5-C6. (Id. at 621, 797, 969.)
Thirteen days later, Plaintiff saw Dr. Muha. (Id. at 522-23, 628-29, 741-42.) On
examination, his neck had some mild limitation of motion with cervical foraminal closure
maneuvers to the left. (Id. at 522.) The remainder of the examination findings were
unchanged. (Id. at 522-23.) He was diagnosed with cervical degenerative disc disease and
shoulder bursitis/tendinitis. (Id. at 523.) Dr. Muha informed Plaintiff he was reluctant to
recommend surgical intervention as he was not sure it would be of significant benefit. (Id.)

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Plaintiff consulted a neurosurgeon, William Young, M.D., on June 25 for his left
shoulder and neck pain. (Id. at 626-27, 911-12.) On examination, he was in no acute distress,
had an appropriate mood and affect, and had full motor strength throughout. (Id. at 626.) He
had pain with range of motion testing of his left shoulder, but no evidence of atrophy or
fasciculation of his extremities. (Id.) Dr. Young opined that Plaintiff's symptoms were a
combination of cervical spondylosis and an intrinsic shoulder problem, the latter being the
more significant problem.

(Id. at 627.)

He recommended that Plaintiff have the

recommended surgical procedure and then return for a follow-up appointment so any cervical
symptoms can be addressed. (Id.)
On September 3, Plaintiff underwent an arthroscopic subacrominal decompression of
his left shoulder and arthroscopic left distal clavicle resection. (Id. at 531-32, 576-77, 618,
794, 887-88.)
Nine days later, he went to the PCH emergency room for complaints of pain in his left
shoulder and armpit. (Id. at 578-82, 889-93, 971-75.) It was explained that the pain was
probably caused by an inflammation caused by having his arm in a sling for several days. (Id.
at 582.) He was given an antibiotic, Keflex, and advised to follow up with his primary care
physician in two days. (Id. at 580, 582.)
On September 15, Plaintiff reported to Dr. Muha that his shoulder felt different. (Id.
at 533-34, 622-23, 734-35, 738-39.) He had gone for his initial physical therapy evaluation
and was waiting for insurance to clear him for treatments. (Id. at 533.) He was encouraged
to discontinue using the sling and return in four to six weeks. (Id.)

- 17 -

The same day, Plaintiff saw Dr. Spangler for an abscess he had behind his right ear for
the past two months. (Id. at 549, 823.) He was prescribed an antibiotic. (Id.)
Plaintiff consulted Brent M. Savage, M.D., on January 5, 2010, about right posterior
ear and neck lesions which had been reduced, but not resolved, by antibiotics. (Id. at 86263.) He had a full range of motion in his extremities. (Id. at 863.) There were no signs of
an active infection and no drainage. (Id. at 862-63.) An unspecified surgical procedure was
discussed; Plaintiff was to call back with his decision. (Id.)
On January 18, Plaintiff was treated at the PCH emergency room for a foreign body
that got into his left eye when he was working on a car the night before. (Id. at 569-75, 88086, 976-80.)
Plaintiff did not show for his February appointment with Dr. Spangler to have lab
work done. (Id. at 549.)
Plaintiff reported to Dr. Spangler on March 8 that the surgery on his left shoulder had
not helped and that it was still painful. (Id. at 548, 822.) His left arm was weak and he could
not hold it up for a long time. (Id.) Also, he had neck pain. (Id.) Plaintiff was prescribed
Percocet and Flexeril and referred to an orthopedist for his neck and shoulder pain. (Id.)
Plaintiff did not show for his March 24 appointment with Dr. Spangler. (Id. at 547,
821.)
Plaintiff went to the PCH emergency room on July 11 for complaints of left-sided
chest pressure for the past three months that radiated to his left arm and was getting worse.
(Id. at 562-66, 593-96, 608-13, 615-17, 791-93, 873-77, 981-96, 1012-13.) Also, he had

- 18 -

shortness of breath. (Id. at 562.) Chest x-rays and an ECG were normal with the exception
of showing chronic bronchitis and possible early pneumonia. (Id. at 567, 608-13, 615-17,
654-55, 791-93.) A drug screen was positive for marijuana. (Id. at 595.) He had no relief
from Toradol, but did have relief from Nubain and Phenergan. (Id. at 562.)
The next day, Plaintiff went to the emergency room at DRMC, complaining of left rib
pain for at least the past month; chest pain, weakness, and dizziness for the past ten days; and
left arm numbness. (Id. at 567-68, 652-58, 701-07, 769-70, 784-85, 788-89, 878-79.) A
review of his systems was negative with the exception of the left rib pain. (Id. at 567-68.)
Chest x-rays revealed chronic bronchitis and possible early pneumonia. (Id. at 654, 706.)
An EKG was normal except for sinus bradycardia. (Id. at 769-70, 784-85.) Plaintiff was
diagnosed with costochondritis (an inflammation of the cartilage that connects a rib to the
breastbone) and discharged with instructions to see his primary care physician in two or three
days. (Id. at 568.)
Two days later, Plaintiff saw Dr. Spangler. (Id. at 546, 605-07, 781-83, 790, 820, 99799.) Computed tomography (CT) scans of his chest for pulmonary embolism were negative.
(Id. at 605, 607, 781, 783, 999.) CT scans of his abdomen were also negative. (Id. at 605-07,
782, 999.) He was to have his cholesterol levels checked and return the next day. (Id. at
546.) Plaintiff did return, reporting that he was still having left-sided chest pain. (Id. at 545,
819.) He was told to follow-up with the doctor who did the surgery for his complaints of
tingling in his right arm and pain in his left shoulder. (Id.) Six days later, Dr. Spangler
referred Plaintiff to a cardiologist. (Id. at 544, 818.)

- 19 -

Plaintiff was seen on July 26 for a cardiovascular evaluation by Farrukh Khan, M.D.
(Id. at 667-69, 692-94, 697, 767-68, 906-10.) Chest x-rays showed chronic bronchitis. (Id.
at 649, 698.) An EKG was normal except for sinus bradycardia. (Id. at 767-69.) The next
day, Plaintiff had a cardiac catherization by Dr. Khan for an investigation of his "rather
typical symptoms for myocardial ischemia." (Id. at 600-01, 665-66, 695-96, 771-73, 776-77.)
The catherization revealed "[n]o angiographic evidence of atherovascular coronary artery
heart disease" and "[p]reserved systolic and mildly elevated diastolic pressure." (Id. at 600.)
The only recommendation was "[o]ptimization of the medical regimen." (Id.)
Plaintiff went to the DRMC emergency room on July 28 for complaints of right groin
and intermittent left-sided chest pain. (Id. at 553-56, 602-04, 659-64, 671-76, 680-91, 77880, 864-67.) He reported that the Percocet he had taken in 2009 had helped with his
symptoms, but he had taken the last Percocet he had available. (Id. at 555.) On examination,
Plaintiff was in no acute distress. (Id.) Other than a "small well healing puncture" in his right
groin and a minimal amount of ecchymosis (a small hemorrhagic spot in the skin), the
examination findings were normal. (Id.) CT scans of his chest, abdomen, and pelvis showed
no infection. (Id. at 555, 602-04, 659-60, 673-76, 685-91, 778-80.) Plaintiff was given a
prescription for Percocet, instructed to follow-up with his primary care physician in two or
three days, and discharged "in good and improved condition." (Id. at 556.) A mammogram
taken the next day showed larger pectoral muscles on the left than on the right but was
otherwise normal. (Id. at 599, 775, 1000.)

- 20 -

In August, Plaintiff reported to Dr. Spangler that he had had a heart catherization and
was still tender and bruised at the site where the catheter was inserted. (Id. at 543, 817.)
An echocardiograph performed on September 2 showed normal valvular morphology,
normal cardiac chamber dimensions, and atypical septal motion and overall preserved left
ventricular systolic function with an ejection fraction of 55 to 60 percent. (Id. at 634, 861,
1001.)
Plaintiff went to the PCH emergency room on September 11 for complaints of
migraine headaches that were an eight on a ten-point scale. (Id. at 854-60, 1002-06.)
Plaintiff was given Toradol, Phenergan, and Nubain. (Id. at 856.) His pain diminished to a
five and he was discharged. (Id. at 855, 860.) The next day, Plaintiff returned to the
emergency room. (Id. at 848-53, 1007-11.) He was again given medications and discharged.
(Id. at 850.)
On October 1, Plaintiff saw Dr. Spangler for complaints of chest pain and shortness
of breath. (Id. at 816.) His heart had a regular rate and rhythm. (Id.) He was prescribed
Percocet and was told to reduce his smoking. (Id.)
Chest x-rays taken on October 12 revealed no acute cardiopulmonary abnormality and
mildly hyperexpanded lungs. (Id. at 774.) Chest x-rays taken on October 29 to investigate
Plaintiff's complaints of a cough and chronic obstructive pulmonary disease (COPD) revealed
a stable chest with mild hyperinflation. (Id. at 765-66, 815.)
At the request of Dr. Spangler, Plaintiff returned to Dr. Muha in November for an
evaluation of his left shoulder and chest wall pain. (Id. at 731-33, 903-05.) Dr. Muha noted

- 21 -

that Plaintiff had failed to return for a follow-up after being seen only once postoperatively.
(Id. at 731.) On examination, Plaintiff had no muscular atrophy or spasm in his left shoulder,
but did have full motion, strength, and stability. (Id.) Although his pectoral muscle was
larger on the left, he had no tenderness over the muscle and no pain with resisted adduction.
(Id. at 732.) Dr. Muha diagnosed Plaintiff with cervical degenerative disc disease and
referred him back to Dr. Spangler for consideration of further cervical treatment, including
a cervical spine surgeon. (Id.)
A pulmonary function study performed on November 30 was normal. (Id. at 799-800,
1014-16.)
When seen by Dr. Spangler on December 10, Plaintiff was prescribed Percocet, to be
taken every hour as needed. (Id. at 541.) Five days later, Plaintiff complained to Dr.
Spangler of chest pain and pressure. (Id. at 813.) He was diagnosed with COPD and told to
reduce his smoking. (Id.)
On December 31, Plaintiff was seen at the PCH emergency room for complaints of
chest pain that was a nine on a ten-point scale. (Id. at 760-62, 843-47, 1017-26.) A chest xray showed no active pulmonary disease. (Id. at 761, 1026.) An EKG was normal. (Id. at
760, 762, 1024-25.) Plaintiff was diagnosed with costochronditis and atypical chest pain and
discharged with a prescription for a pain reliever. (Id. at 847.)
The next day, January 1, 2011, Plaintiff went to the emergency room at DRMC for
abdominal cramping and diarrhea. (Id. at 827-29, 835-42, 1065-73.) His past medical history
was significant for asthma and chest pains. (Id. at 829.) He did not have a fever but did have

- 22 -

the shakes and chills. (Id.) He was diagnosed with a perirectal cyst or abscess, prescribed
a stool softener and Cipro (an antibiotic), and was to follow up with a Dr. Sayre. (Id. at 829,
835-36.)
On January 2, Plaintiff went to the emergency room at PCH. (Id. at 830-34, 1027-32.)
He was told to stop the Cipro and was prescribed two other antibiotics instead. (Id. at 834.)
The following day, January 3, he consulted Peter vanden Berg, M.D., about the
abscess. (Id. at 902.) Dr. Berg opined that the abscess would heal within two weeks. (Id.)
If it did not, Plaintiff was to return. (Id.)
Plaintiff reported to Dr. Spangler on January 26 that the Percocet helped take the edge
off his pain. (Id. at 812.) He further reported that he had had a cough and some wheezing
the past week. (Id.) He used Albuterol every day. (Id.) Plaintiff was diagnosed with
emphysema and prescribed Advair Diskus in addition to the Percocet. (Id.) He was to return
in two months or sooner if needed. (Id.)
In February, Plaintiff consulted Frank E. Furmich, M.D., with the Orthopaedic
Institute, for complaints of neck and left arm pain. (Id. at 728-30.) He reported that his pain
was aggravated by walking, prolonged sitting, and moving his neck. (Id. at 728.) He had to
change positions frequently. (Id.) And, he had difficulties with activities of daily living
because of the pain. (Id.) His neck pain was an average of four on a ten-point scale and was
a six at its worst. (Id.) His arm pain was an average of six and a nine at its worst. (Id.) On
examination, he was in no acute distress, walked with a non-antalgic and non-ataxic gait, and
had no loss of muscle tone or strength in his upper extremities. (Id. at 728-29.) He had 4/5

- 23 -

strength on the left with resisted grip and 5/5 on the right. (Id. at 729.) He had a full range
of motion and flexion and extension as well as lateral bending. (Id.) He was diagnosed with
cervical spondyloarthritis, displacement of cervical intervertebral disc without myelopathy,
and cervical radiculitis. (Id.) He was to participate in physical therapy and use over-thecounter anti-inflammatories – both prerequisites for insurance approval of the MRI that Dr.
Fumich wanted him to have. (Id.) He was given a note to be off work until a follow-up
evaluation. (Id.)
Plaintiff was seen on March 2 at the PCH emergency room after hurting his left hip
and back. (Id. at 801-10, 1033-38.) Also, he had tingling in his left legs. (Id. at 802.) On
examination, he had a limited ability to bear weight and a limited range of motion in his left
hip. (Id. at 805.) X-rays of Plaintiff's left hip and of his lumbar spine were all normal with
the exception of showing mild degenerative changes. (Id. at 801, 1038.) Plaintiff was given
morphine and Phenergan, diagnosed with lumbosacral strain, and discharged with a
prescription for Percocet. (Id. at 804, 806, 808-10.)
Two days later, on Dr. Fumich's referral, Plaintiff was evaluated for physical therapy.
(Id. at 1044-46.) Plaintiff complained of increasing pain in the left side of his neck that
radiated to the left shoulder and upper extremity; of pain over his cervical spine that radiated
down into his scapular area, shoulder, and chest; and of a decreased range of motion in his
neck, which caused him difficulties sleeping. (Id. at 1044.) On examination, Plaintiff's active
range of motion in his upper extremities was within normal limits but his cervical range of
motion was diminished. (Id.) His deep tendon reflexes and his left grip strength were also

- 24 -

diminished. (Id. at 1045.) His posture was poor. (Id.) Short term goals of physical therapy
included the decrease of Plaintiff's cervical pain to a five with activities of daily living and
the increase of his cervical range of motion to within normal limits for those activities. (Id.)
He was to be seen twice a week for six weeks. (Id.) He had a session that day. (Id.) He
could not keep his next session, but did keep the following two, on March 22 and March 24.
(Id. at 1041, 1042.) He was a "no show" for the next session and cancelled the one following.
(Id. at 1041.) His last physical therapy session was on April 4. (Id. at 1092.) His cervical
spine and left shoulder pain were a five to six and he had made progress on his goals and was
independent with his home exercise program. (Id.) Because no other sessions were
scheduled, he was discharged from physical therapy. (Id.)
Three days after his last physical therapy session, Plaintiff saw Dr. Fumich. (Id. at
1098-99.) In addition to continuing neck and left arm pain, Plaintiff had numbness and
tingling in his right arm, resulting in him dropping things and having difficulty with fine
motor tasks. (Id. at 1098.) His symptoms were worse when he used his arms and better when
he rested. (Id.) On examination, "[h]is hand grip, finger extension, wrist extension, elbow
flexion and extension [were] fully maintained throughout grade 5/5 with the exception of his
left hand grip, which was maintained at 4/5." (Id.) He was to have a cervical MRI. (Id.) Dr.
Fumich gave Plaintiff an "off work slip" with a start date of February 24, 2011, to May 2,
2011, "due to cervical spine and further work-up." (Id.)
The MRI, performed on April 28, revealed "a two-level cervical spondylosis and
stenosis condition of the level C4-C5 and C5-C6 producing deformation of the cervical spinal

- 25 -

cord," worse on the left than on the right. (Id. at 1094, 1096-97.) Seeing Dr. Fumich the
same day, Plaintiff reported that the physical therapy was of no use. (Id. at 1094-95.) Dr.
Fumich diagnosed Plaintiff with displacement of cervical intervertebral disc without
myelopathy and cervical radiculitis. (Id. at 1094.) Plaintiff was to consider an anterior
cervical disc fusion at C5-C6 and C6-C7. (Id. at 1095.) He was "very motivated to avoid"
the surgery and wanted to think about his options. (Id.) Dr. Fumich gave Plaintiff an "off
work slip" with a start date of May 17 and an estimated return to work date of August 29 "due
to cervical spine and surgery." (Id. at 1094.)
Plaintiff was admitted to PCH on July 9 after a friend responded to a message he had
left and found him to have garbled speech. (Id. at 1074-91.) He had apparently overdosed
on Ambien, Xanax, Flexeril, and Percocet. (Id. at 1075.) On admission, he tested positive
for benzodiazepine, cocaine, and marijuana. (Id. at 1088.) The next day, he rested in bed and
denied any suicidal ideation. (Id. at 1074, 1082.) After his wife expressed concern that he
might attempt suicide again if he went home, Plaintiff was transferred and voluntarily
admitted on July 10 to the Northwest Ohio Psychiatric Hospital. (Id. at 1050-61, 1074.) He
had had a relapse of alcohol abuse and had overdosed on prescription medication. (Id. at
1052.) Plaintiff reported that his marriage had deteriorated due to his chronic pain and
inability to work. (Id.) Before his overdose, he had been depressed, had difficulty sleeping,
and had a decreased appetite and energy. (Id. at 1054.) He had done construction work, but
could no longer due to his constant shoulder pain. (Id. at 1055.) He dropped out of school
in the eleventh grade because he did not like school, was always in trouble, and was into

- 26 -

drugs. (Id.) He had been in special education classes. (Id.) He smoked one pack of
cigarettes a day, and had since he was fourteen. (Id.) He had been a heavy drinker, but had
stopped until two or three weeks earlier. (Id.) He smoked marijuana daily to help relieve his
pain. (Id.) He reported that he had problems with his memory, and they were getting worse.
(Id. at 1056.) He took Percocet to try to relieve his pain. (Id.) On examination, he appeared
to be in pain. (Id.) His speech was normal in rate, tone, and volume and was logical and not
pressured. (Id.) His mood was worried, scared, and anxious. (Id.) He did not have any
current suicidal ideation or any hallucinations. (Id.) He was oriented to place, time, person,
and situation. (Id.) His attention was good; his intelligence was low average; his insight was
fair; his judgment showed a lack of ability to cope and the tendency to use alcohol and acting
out to ask for help. (Id. at 1056-57.) He was diagnosed with mood disorder, not otherwise
specified, and bipolar versus unipolar with substance abuse exacerbation. (Id. at 1057.)
The next day, Plaintiff had a physical examination. (Id. at 1059-61.) Plaintiff reported
that his current medications included Percocet, ProAir inhaler for COPD, Spiriva, and Advair
Diskus. (Id. at 1059.) He used a nicotine patch to help him stop smoking. (Id.) He had a
full range of motion in all joints with no cyanosis, clubbing, or edema. (Id. at 1060.) He was
in some distress due to chronic neck pain. (Id.) His gait and sensory function to pinprick and
soft touch were intact. (Id. at 1061.) He had good motor strength in his upper and lower
extremities and equal deep tendon reflexes. (Id.) He was to be maintained on his
medications until lab work was done. (Id.)
Also before the ALJ was the reports of non-examining and examining consultants.

- 27 -

At the initial level, Leon D. Hughes, M.D., and Irma Johnston, Psy.D., reviewed the
medical evidence to date, including the report of Dr. Ward,12 see pages 29 to 30, infra, and
the forms completed as part of the application process. (Id. at 68-81.) It was opined that
Plaintiff had non-severe dysfunction of his major joints, severe anxiety and affective
disorders, and non-severe substance addiction disorder. (Id. at 75.) His mental impairments
resulted in moderate restrictions in his activities of daily living, moderate difficulties in social
functioning, and moderate difficulties in concentration, persistence, or pace. (Id.) They had
not caused him repeated episodes of decompensation. (Id.) Dr. Johnston noted that Plaintiff
reported he does not drive, but drove to the consultative exam; reported he had no permanent
address, but lived with his family; and reported a history of special education services, but
had a GAMA in the average range and no documentary support for the services. (Id. at 76.)
She concluded that Plaintiff has the capacity to understand and recall instructions for simple
to moderately complex tasks. (Id. at 77.) Plaintiff's ability to maintain attention and
concentration for extended periods and his ability to perform activities within a schedule,
maintain regular attendance, and be punctual within customary tolerances were moderately
limited. (Id.) His ability to carry out detailed instructions was not significantly limited. (Id.)
His ability to work in coordination with or in proximity to others without being distracted
by them, to interact with the general public, and to complete a normal workweek and
workday without interruptions from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods was moderately
12

The source of this report is identified as Paul Deardorff, Ph.D. Dr. Ward is the psychologist
who authored the report. He is in Dr. Deardorff's practice.
- 28 -

limited. (Id. at 78.) His ability to respond appropriately to changes in the work setting was
also moderately limited. (Id.) He had no past relevant work. (Id. at 79, 80.) It was
concluded that Plaintiff was not disabled. (Id. at 81.)
Caroline Lewin, Ph.D., and Eli Perencevich, D.O., came to similar conclusions when
reviewing the record pursuant to Plaintiff's request for reconsideration. (Id. at 83-96.)
In November 2010, Christopher C. Ward, Ph.D., a licensed psychologist, performed
a psychological evaluation of Plaintiff. (Id. at 721-25.) Plaintiff reported that he was
married, lived with his wife and four children, and did not work because of shoulder problems
and being nervous around people. (Id. at 721.) He had completed the ninth grade and had
received special education services. (Id. at 722.) He was a "loner" in school and had been
suspended multiple times for fighting and violating the rules. (Id.) He had been expelled.
(Id.) As an adult, he spent six years in prison for burglary and failure to pay child support.
(Id.) He had a history of alcohol abuse and cocaine dependence, but had been sober for four
years. (Id.) In addition to shoulder pain, he had chest pains, breathing problems, and
migraine headaches. (Id.) He was not taking any prescription medications. (Id.) He has not
worked since 2006, and has never steadily worked. (Id.) On examination, he was difficult
to establish rapport with, but did not appear to exaggerate or minimize his difficulties. (Id.)
His speech was within normal limits and was without loose associations or flight of ideas.
(Id. at 723.) His mood was anxious and withdrawn; his affect was flat; his facial expression
was downcast. (Id.) He had limited eye contact. (Id.) He reported having symptoms of
depression, racing thoughts, and paranoia during the past year. (Id.) He also reported having

- 29 -

feelings of boredom and anger. (Id.) He did not have any suicidal or homicidal ideation.
(Id.) He was alert and oriented to time, place, person, and situation. (Id.) His remote recall
was adequate; his short-term memory was below average.

(Id.)

His attention and

concentration skills were limited. (Id.) His arithmetic and abstract reasoning abilities were
below average. (Id.) His intelligence level seemed to be between the borderline and low
average range. (Id.) Plaintiff reported that he had a few friends and regular contact with
family. (Id. at 724.) His activities of daily living included providing "some care for his
children." (Id.) He did not shop and did limited chores as he was easily frustrated. (Id.) He
watched television. (Id.) He had limited motivation and energy. (Id.)
Dr. Ward assessed Plaintiff's presentation as being indicative of problems with his
mood and anxiety. (Id.) His ability to relate to others, including fellow workers and
supervisors, was moderately impaired by his mental health difficulties. (Id. at 725.) "He
would have some difficulty working in groups and with critical feedback, both of which
would increase his mental health symptoms." (Id.) Also moderately impaired was his ability
to understand, remember, and follow instructions.

(Id.)

He would have difficulty

remembering and understanding simple instructions of more than two steps. (Id.) His ability
to maintain attention, concentration, persistence, and pace was moderately impaired and
below average. (Id.) "[His] ability to withstand the stress and pressure associated with dayto-day work activity [was] markedly impaired." (Id.) Plaintiff was diagnosed with major
depressive disorder, recurrent, anxiety disorder not otherwise specified, and cocaine
dependence in remission. (Id. 724.) His current GAF was 50. (Id.)

- 30 -

The ALJ's Decision
The ALJ first determined that Plaintiff has not engaged in substantial gainful activity
since his application date of August 13, 2010. (Id. at 10.) The ALJ next found that Plaintiff
has severe impairments of left shoulder tendinitis, COPD, mild degenerative disc disease,
affective disorder, anxiety, and bipolar disorder. (Id.) He does not have an impairment or
combination thereof that meets or medically equals an impairment of listing-level severity.
(Id.)
Addressing Plaintiff's mental impairments, the ALJ determined that Plaintiff has
moderate limitations in his activities of daily living, in social functioning, and in
concentration, persistence or pace. (Id. at 11.) His limitation in social functioning is
accommodated by restricting him to occasional interaction with the public, coworkers, and
supervisors. (Id.) His limitation in concentration, persistence, or pace is accommodated by
restricting him to simple, routine, and repetitive tasks. (Id.) Plaintiff has not had any
episodes of decompensation of extended duration. (Id. at 12.)
Addressing Plaintiff's residual functional capacity (RFC), the ALJ found he can
perform less than a full range of medium work. (Id.) Specifically, he can lift and/or carry
twenty-five pounds frequently and fifty pounds occasionally; he can sit, stand, and/or walk
for six hours out of an eight-hour workday; he can occasionally reach overhead with his left
upper extremity, but is not to climb ladders, ropes, or scaffolds; he is limited to simple,
routine, and repetitive tasks; and he can occasionally interact with the public and coworkers
(Id.) In reaching this conclusion, the ALJ evaluated Plaintiff's credibility and found it

- 31 -

diminished by at least six considerations. (Id. at 13-14.) First, Plaintiff "has engaged in a
somewhat normal level of daily activity and interaction," including visiting friends, preparing
meals, watching television, playing with his children, cleaning, doing the laundry and
shopping, and going out alone. (Id. at 13.) The ALJ noted that Plaintiff had reportedly
worked on a vehicle in January 2010. (Id.) The responses of his father on a Function Report
were discounted on the grounds that his father is not a medical professional, but does have
a familial interest in seeing his son receive benefits and that his statements are not supported
by the medical evidence.13 (Id. at 13-14.) Second, his convictions for receiving stolen
property and for theft give him "a reputation for dishonesty" and detract from his credibility.
(Id. at 14.) Third, his allegations are not supported by the objective medical evidence. (Id.)
Fourth, he has a poor earnings record and sporadic work history. (Id.) Fifth, he is noncompliant with treatment. (Id.) For instance, he has COPD but continues to smoke
regardless of his doctors' instructions to stop. (Id.) Also, he does not follow-up as directed
and did not complete physical therapy. (Id.) He has misrepresented to the consultative
examiner and at the hearing his use of alcohol and illicit substances. (Id.) Sixth, he has not
received the type of medical treatment that is expected for a totally disabled individual and
has instead received routine, conservative, and non-emergency treatment since the alleged
disability onset date. (Id.)

13

The report referred to was a Function Report Adult Third Party completed by Plaintiff's
father in September 2010. Asked how much time he spent with Plaintiff, his father replied, "very
little." (Id. at 202.) He responded "don't know" to the majority of questions, including about how
Plaintiff spent his day, where he lived, what he did, and what he can do. (Id. at 202-08.) He
explained that he sometimes does not see Plaintiff for months. (Id. at 909.)
- 32 -

After summarizing the medical evidence, the ALJ gave little weight to the opinion of
Dr. Fumich in April 2011 that Plaintiff can return to work the following month. (Id. at 1516.) He noted that it was but a temporary release as Dr. Fumich ultimately released Plaintiff
to return to work and, insofar as it is an opinion that Plaintiff could not work for that month,
it is an opinion on an issue reserved to the Commissioner. (Id. at 16.) The ALJ also gave
little weight to the low GAF scores, noting that Plaintiff's mental status examinations were
generally within normal limits and were sometimes given when he was under the influence
of illicit substances. (Id. at 16-17.) Little weight was given to Dr. Ward's functional
assessment because Plaintiff was dishonest with him about his substance abuse,
misrepresenting that he had been sober for four years. (Id. at 17.)
Conversely, the ALJ gave significant weight to the opinion of the psychological State
agency review consultants. (Id.) "[S]ome weight" was given to the physical State agency
review physicians. (Id.)
The ALJ concluded that with his RFC Plaintiff can perform his past relevant work as
an auto body helper as he performed it and as described in the DOT. (Id. at 17-18.)
Plaintiff is not, therefore, disabled within the meaning of the Act. (Id. at 18.)

- 33 -

Standards of Review
Under the Act, the Commissioner shall find a person disabled if the claimant is "unable
to engage in any substantial activity by reason of any medically determinable physical or
mental impairment," which must last for a continuous period of at least twelve months or be
expected to result in death. 42 U.S.C. § 1382c(a)(3)(A). Not only the impairment, but the
inability to work caused by the impairment must last, or be expected to last, not less than
twelve months. Barnhart v. Walton, 535 U.S. 212, 217-18 (2002). Additionally, the
impairment suffered must be "of such severity that [the claimant] is not only unable to do his
previous work, but cannot, considering his age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the national economy, regardless
of whether . . . a specific job vacancy exists for him, or whether he would be hired if he
applied for work." 42 U.S.C. § 1382c(a)(3)(B).
"The Commissioner has established a five-step 'sequential evaluation process' for
determining whether an individual is disabled.'" Phillips v. Colvin, 721 F.3d 623, 625 (8th
Cir. 2013) (quoting Cuthrell v. Astrue, 702 F.3d 1114, 1116 (8th Cir. 2013) (citing 20 C.F.R.
§ 416.920(a)). "Each step in the disability determination entails a separate analysis and legal
standard." Lacroix v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006). First, the claimant
cannot be presently engaged in "substantial gainful activity." See 20 C.F.R. § 416.920(b);
Hurd, 621 F.3d at 738. Second, the claimant must have a severe impairment. See 20 C.F.R.
§ 416.920(c). A"severe impairment" is "any impairment or combination of impairments

- 34 -

which significantly limits [claimant's] physical or mental ability to do basic work
activities . . . ." Id.
At the third step in the sequential evaluation process, the ALJ must determine whether
the claimant has a severe impairment which meets or equals one of the impairments listed in
the regulations and whether such impairment meets the twelve-month durational requirement.
See 20 C.F.R. § 416.920(d) and Part 404, Subpart P, Appendix 1. If the claimant meets these
requirements, he is presumed to be disabled and is entitled to benefits. Bowen v. City of
New York, 476 U.S. 467, 471 (1986); Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir.
1994).
"Prior to step four, the ALJ must assess the claimant's [RFC], which is the most a
claimant can do despite [his] limitations." Moore v. Astrue, 572 F.3d 520, 523 (8th Cir.
2009) (Moore I). "[A]n RFC determination must be based on a claimant's ability 'to perform
the requisite physical acts day in and day out, in the sometimes competitive and stressful
conditions in which real people work in the real world.'" McCoy v. Astrue, 648 F.3d 605,
617 (8th Cir. 2011) (quoting Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007)).
Moreover, "'a claimant's RFC [is] based on all relevant evidence, including the medical
records, observations of treating physicians and others, and an individual's own description
of his limitations.'" Moore I, 572 F.3d at 523 (quoting Lacroix, 465 F.3d at 887); accord
Partee v. Astrue, 638 F.3d 860, 865 (8th Cir. 2011).
"'Before determining a claimant's RFC, the ALJ first must evaluate the claimant's
credibility.'" Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007) (quoting Pearsall v.

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Massanari, 274 F.3d 1211, 1217 (8th Cir. 2002)). This evaluation requires the ALJ consider
"'[1] the claimant's daily activities; [2] the duration, frequency and intensity of the pain; [3]
precipitating and aggravating factors; [4] dosage, effectiveness and side effects of medication;
[5] functional restrictions.'" Id. (quoting Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir.
1984)). "'The credibility of a claimant's subjective testimony is primarily for the ALJ to
decide, not the courts.'" Id. (quoting Pearsall, 274 F.3d at 1218). After considering the
Polaski factors, the ALJ must make express credibility determinations and set forth the
inconsistencies in the record which caused the ALJ to reject the claimant's complaints. Ford
v. Astrue, 518 F.3d 979, 982 (8th Cir. 2008); Singh v. Apfel, 222 F.3d 448, 452 (8th Cir.
2000).
At step four, the ALJ determines whether claimant can return to his past relevant work,
"review[ing] [the claimant's] [RFC] and the physical and mental demands of the work
[claimant has] done in the past." 20 C.F.R. § 416.920(e). The burden at step four remains
with the claimant to prove his RFC and establish he cannot return to his past relevant work.
Moore I, 572 F.3d at 523; accord Dukes v. Barnhart, 436 F.3d 923, 928 (8th Cir. 2006);
Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005).
If the ALJ holds at step four of the process that a claimant cannot return to past
relevant work, the burden shifts at step five to the Commissioner to establish the claimant
maintains the RFC to perform a significant number of jobs within the national economy.
Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009); Banks v. Massanari, 258 F.3d 820,
824 (8th Cir. 2001). See also 20 C.F.R. § 416.920(f). The Commissioner may meet her

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burden by eliciting testimony by a VE, Pearsall, 274 F.3d at 1219, based on hypothetical
questions that "'set forth impairments supported by substantial evidence on the record and
accepted as true and capture the concrete consequences of those impairments,'" Jones v.
Astrue, 619 F.3d 963, 972 (8th Cir. 2010) (quoting Hiller v. S.S.A., 486 F.3d 359, 365 (8th
Cir. 2007)).
If the claimant is prevented by his impairment from doing any other work, the ALJ
will find the claimant to be disabled.
The ALJ's decision whether a person is disabled under the standards set forth above
is conclusive upon this Court "'if it is supported by substantial evidence on the record as a
whole.'" Wiese v. Astrue, 552 F.3d 728, 730 (8th Cir. 2009) (quoting Finch v. Astrue, 547
F.3d 933, 935 (8th Cir. 2008)); accord Dunahoo v. Apfel, 241 F.3d 1033, 1037 (8th Cir.
2001). "'Substantial evidence is relevant evidence that a reasonable mind would accept as
adequate to support the Commissioner's conclusion.'" Partee, 638 F.3d at 863 (quoting Goff
v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)). When reviewing the record to determine
whether the Commissioner's decision is supported by substantial evidence, however, the Court
must consider evidence that supports the decision and evidence that fairly detracts from that
decision. Moore v. Astrue, 623 F.3d 599, 602 (8th Cir. 2010); Jones, 619 F.3d at 968;
Finch, 547 F.3d at 935. The Court may not reverse that decision merely because substantial
evidence would also support an opposite conclusion, Dunahoo, 241 F.3d at 1037, or it might
have "come to a different conclusion," Wiese, 552 F.3d at 730. "'If after reviewing the record,
the [C]ourt finds it is possible to draw two inconsistent positions from the evidence and one

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of those positions represents the ALJ's findings, the [C]ourt must affirm the ALJ's decision.'"
Partee, 638 F.3d at 863 (quoting Goff, 421 F.3d at 789).
Discussion
Plaintiff argues that the ALJ erred when (1) evaluating his RFC because such
assessment was not supported by substantial evidence in that (a) it disregarded Plaintiff's
frequent trips to emergency rooms for injections of pain relievers, (b) it disregarded the
observations of Dr. Fumich in February 201114 and in April 2011 about Plaintiff's pain, and
(c) it improperly weighed Dr. Ward's opinion, and (2) determining that Plaintiff can return to
past relevant work as an auto body helper.
RFC. "Among the considerations the ALJ takes into account when determining a
claimant's RFC is the claimant's subjective complaints of pain." Perks v. Astrue, 687 F.3d
1086, 1092 (8th Cir. 2012). Although Plaintiff does not challenge the ALJ's assessment of
his credibility,15 Plaintiff cites his many trips to emergency rooms and injections of pain
relievers in support of his complaints of disabling pain. Between February 2006 and March
2011, Plaintiff made twenty trips to an emergency room, eleven of which were before his
alleged disability onset date of October 2009. Four trips were for treatment of migraine
headaches; three were made before October 2009, one after. With the exception of an
administration of Phenergan and morphine when Plaintiff was seen at an emergency room in
March 2011 for complaints of left hip and back pain, the cited injections of pain relievers
14

Plaintiff mistakenly identifies the February 2011 record as being that of Dr. Muha.

15

Were he to do so, any such challenge would be unavailing for the reasons discussed by the
Commissioner in her brief in support of her answer. (See Def.'s Br. at 4-9, ECF No. 22.)
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were given during treatment of migraines – an impairment not alleged by Plaintiff to be
disabling. Two trips were for treatment of left shoulder pain, an allegedly disabling
impairment. Both were made before October 2009. The first trip, in January 2007, was
caused by Plaintiff being hit by a beam. The diagnosis made in the second trip, in September
2009, was that an infection resulting from Plaintiff wearing a sling was the cause of the pain.
Plaintiff made six emergency room trips for treatment of chest pain. Three were made before
October 2009; three after. Two of the later three were made the same month; one one day to
one emergency room, the second made the day after to another emergency room. Tests taken
at each showed bronchitis and possible early pneumonia. Tests taken during the third trip,
which occurred five months later, showed no active pulmonary disease. Plaintiff was given
a prescription for a pain reliever at this visit, but no injection. The next day, he went to an
emergency room at another hospital, and was prescribed only a stool softener and an
antibiotic. Plaintiff went to an emergency room once for depression – this was in March 2007
and followed a pattern of drinking until he passed out. The other emergency room trips were
for gastric, eye, or infection problems. Thus, contrary to Plaintiff's assertion, his trips to
emergency rooms for treatment of various claims of pain do not support his claim that the
ALJ's RFC is not supported by substantial evidence. See Johnson v. Astrue, 628 F.3d 991,
995-96 (8th Cir. 2011) (question before the ALJ was not whether claimant suffered from pain
due to her lupus but was whether the pain was disabling).
In support of his argument that the ALJ's RFC assessment is fatally flawed, Plaintiff
also cites the references in Dr. Fumich's February 2011 notes to Plaintiff's neck and left arm

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pain being made worse by activity and in his April 2011 notes to Plaintiff dropping things,
having difficulty with fine motor tasks, and to Plaintiff's symptoms being aggravated by his
use of his arms and relieved by rest. The references in both notes, however, are to Plaintiff's
reports or history of his symptoms. Dr. Fumich's examination findings are inconsistent with
those references. For instance, at the February visit, Plaintiff had no loss of muscle tone or
strength in his upper extremities and only a slightly weakened grip in his left hand. At the
April visit, although Plaintiff reported he was dropping things and having difficulty with fine
motor tasks, his hand grip and finger and wrist extension were fully maintained in his right
hand – his dominant hand – and only slightly, i.e., 4/5, lessened in his left hand. The ALJ
may properly disregard that portion of a physician's report that is based on the claimant's
discredited subjective complaints rather than on objective medical evidence and may discount
any conclusions based on those complaints. Cline v. Colvin, 771 F.3d 1098, 1104 (8th Cir.
2014); McDade v. Astrue, 720 F.3d 994, 998 (8th Cir. 2013); Renstrom v. Astrue, 680 F.3d
1057, 1065 (8th Cir. 2012). See also Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000)
(rejecting claimant's argument ALJ had improperly ignored portions of treating physician's
opinion when the portions were based on claimant's subjective descriptions).

Also, any reliance by Plaintiff on Dr. Fumich's "off work slips" in support of his
argument is unavailing. As noted by the ALJ, the releases were temporary and were for a
duration defined by anticipated medical procedures, some of which Plaintiff did not pursue.
The work Plaintiff was released from was construction work, the requirements of which are
not now at issue. Moreover, any inference that the slips were indicative of an inability to

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work in a wider range of occupations and on a more permanent basis, they invade the
province of the Commissioner. See Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2013) ("A
medical source opinion that an applicant is . . . 'unable to work' . . . involves an issue reserved
for the Commissioner and therefore is not the type of 'medical opinion' to which the
Commissioner gives controlling weight.").

In his final challenge to the ALJ's RFC findings, Plaintiff argues that the ALJ erred by
not giving Dr. Ward's assessment of his abilities more weight and not giving the consulting
non-examiners' opinions less weight. Dr. Ward examined Plaintiff in November 2010.
Plaintiff informed him that he had been sober for four years. He had not been. Four months
earlier, he tested positive for drugs. A year before that, he was using marijuana. And, within
the four years, he had a pattern of drinking until he passed out. The ALJ discounted Dr.
Ward's assessment on the grounds that it was based on an inaccurate assumption that Plaintiff
had not abused alcohol or drugs for four years. This is a reason independent from any
analysis of the ALJ of the opinions of the non-examining consultants and is within the reach
of the ALJ's duty to determine Plaintiff's RFC.
Past Relevant Work. Plaintiff argues that the ALJ erred in determining that he can
return to past relevant work as an auto body helper because the requirements of such a
position are inconsistent with the ALJ's RFC determination that he is limited to occasional
overhead reaching with his left arm. The Commissioner does not dispute the inconsistency
between the ALJ's reaching limitation and the DOT's definition of the job, but contends any

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inconsistency is irrelevant because the ALJ's finding that Plaintiff can return to past relevant
work was made at step four and, consequently, the testimony of a VE was not required.
"Past relevant work is work that [a claimant] [has] done within the past 15 years, that
was substantial gainful activity, and that lasted long enough for [him] to learn to do it." 20
C.F.R. § 416.960(b)(1). The Commissioner's primary consideration when determining
whether someone is performing substantial gainful activity is the earnings derived from that
activity. 20 C.F.R. § 416.974(a)(1). For the year 2005, when Plaintiff worked as an auto
body helper, the average monthly earnings to be considered substantial gainful activity were
$830. Substantial Gainful Activity, http://www.socialsecurity.gov/OACT/COLA/sga.html
(last visited Feb. 25, 2015). Plaintiff earned $8,896 working in 2005 as an auto body helper.
If he worked for ten months or less, this amount is sufficient to be considered substantial
gainful activity. If he worked for eleven months or longer, it is insufficient. The only
indication in the record, however, of how long he worked is his hearing testimony that he was
"pretty sure" it was for at least six months. (R. at 38.)
The regulations further provide that, when determining whether a claimant can return
to past relevant work, the Commissioner "may use the services of vocational experts or
vocational specialists, or other resources, such as the [DOT] . . . , to obtain evidence . . .
need[ed] to help . . . determine whether [the claimant] can do [his] past relevant work, given
[his] residual functional capacity." 20 C.F.R. § 416.960(b)(2). The ALJ did use the services
of a VE, who testified that a claimant who is able to only occasionally reach overhead with
his left arm can perform the job of an auto body repairer helper, DOT 807.687-010. This job

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requires frequent, i.e., from one-third to two-thirds of the time, reaching. DOT, 807.687-010,
1991 WL 681529 (4th ed. rev. 1991).
In Moore v. Colvin, 769 F.3d 987 (8th Cir. 2014), the plaintiff argued that the ALJ
had erred by determining that he could perform two types of work identified by a VE as both
requiring frequent reaching when the ALJ's RFC limited him to occasional overhead reaching
bilaterally. Id. at 989. The court noted that the DOT's listing for each job required frequent
reaching without specifying the direction of reaching. Id. The court further noted that Social
Security Ruling 00-4p requires that an ALJ inquire about any possible conflict between the
VE's evidence and the DOT's information and that the "the ALJ must 'elicit a reasonable
explanation for the conflict' and 'resolve the conflict by determining if the explanation given
[by the expert] provides a basis for relying on the [VE] testimony rather than on the DOT
information.'" Id. at 889-900 (quoting SSR 00-4p, 2000 WL 1898704, at *2-4 (Dec. 4, 2000))
(alterations in original). "Absent adequate rebuttal . . . , VE testimony that conflicts with the
DOT 'does not constitute substantial evidence upon which the Commissioner may rely . . . .'"
Id. at 900 (quoting Kemp v. Colvin, 743 F.3d 630, 632 (8th Cir. 2014)). The court concluded
that the VE's added qualification of "clearing tables" to the job of "cafeteria attendant" and
her "Yes" response to the question whether her testimony was consistent with the DOT did
not adequately explain the inconsistency between the ALJ's RFC and the DOT's description
and remanded the case. Id. Similarly, in Kemp, the court found that the ALJ had not
fulfilled his affirmative responsibility to inquire about a possible conflict between the DOT
and the VE's evidence when the VE testified that the claimant could perform the work of a

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check-weigher although the DOT defined that job as requiring constant reaching and the ALJ
limited the claimant to only occasional overhead reaching. 743 F.3d at 632-33. The VE had
offered no explanation for the conflict and the ALJ had not sought one. Id. at 633.
In Welsh v. Colvin, 765 F.3d 926 (8th Cir. 2014), cited by the Commissioner, the
court rejected an argument that a conflict between the VE's testimony and the DOT listing was
insufficiently resolved because "the VE's explanations were based upon insufficient personal
experience and unreliable scholarly literature." Id. at 930. The VE's explanations, given in
response to extensive questioning and cross-examination, were that the DOT's description was
at the outer limit of what might be required in a particular job and that, based on her
experience observing people at work, the job did not require lifting more weight than listed
in the RFC. Id. at 928. The VE also testified that a published survey found that the job at
issue could be performed with the limitations in the RFC. Id. The court concluded that the
ALJ had properly inquired into the inconsistency. Id. at 930.
In the instant case, the ALJ inquired only about whether the VE's testimony was
"consistent with the DOT and [his] training, education, and experience in the field." (R. at
65.) The VE simply replied, "Yes." (Id.) As in Kemp, 743 F.3d at 633, "the record does not
reflect whether the VE or the ALJ even recognized the possible conflict between the
hypothetical describing a claimant who could reach overhead only occasionally, and [the]
DOT job listing" of 807.687-010 indicating that an auto body repairer helper job required
frequent reaching.

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The Commissioner seeks to distinguish Moore and Kemp on the grounds that the
relevant issue in those cases arose at step five, not step four as in the instant case. Under the
present circumstances, however, the distinction is one without a difference. As noted above,
the regulations provide that the services of a VE may be used when determining whether a
claimant can perform his past relevant work. See 20 C.F.R. § 416.920(b)(2). The ALJ did
so. The ALJ did not adequately inquire into a conflict between the VE's testimony that, even
being limited to occasional overheard reaching with his left arm, Plaintiff could perform his
past relevant work as an auto body helper and the DOT's description of the job as requiring
frequent reaching.
Conclusion
For the reasons set forth above, the ALJ's RFC findings are supported by substantial
evidence on the record as a whole. His findings that Plaintiff had past relevant work as an
auto body helper and that he could return to that work with a limitation of being able to only
occasionally reach overhead with his left arm are not supported by substantial evidence on
the current record. Although the Court is aware "that the ALJ's decision may not change after
properly considering [Plaintiff's] . . . past work demands" and "that the ALJ may choose to
extend his inquiry through the fifth step and find that [Plaintiff] can perform work other than
his past relevant work," see Pfitzer v. Apfel, 169 F.3d 566, 569 (8th Cir. 1999), the
determination is nevertheless one that the Commissioner must make in the first instance.
Accordingly,

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IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED
and that this case is REMANDED to the Commissioner for further proceedings as discussed
above.
An appropriate Order of Remand shall accompany this Memorandum and Order.

/s/ Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE

Dated this 26th day of February, 2015.

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