Jaco v. Colvin

Filing 25

MEMORANDUM AND ORDER re: 21 SOCIAL SECURITY CROSS BRIEF re 12 Answer to Complaint filed by Defendant Carolyn W. Colvin, 14 SOCIAL SECURITY BRIEF filed by Plaintiff Darrell Jaco. IT IS HEREBY ORDERED that the relief which Jaco seeks in his Complaint and Brief in Support of Plaintiff's Complaint is GRANTED in part and DENIED in part. [Docs. 1, 14.] IT IS FURTHER ORDERED that the Commissioner's decision of April 18, 2013 is REVERSED and REMANDED. IT IS FURTHER ORDERED that upon remand the ALJ must obtain additional evidence to determine Jaco's physical functional limitations in performing work related activities and render a new residual functional capacity determination.Signed by Magistrate Judge Nannette A. Baker on 3/24/15. (CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

DARRELL JACO,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No. 1:14-CV-55 NAB

MEMORANDUM AND ORDER
The following opinion is intended to be the opinion of the Court judicially reviewing the
denial of Darrell Jaco’s (“Jaco”) application for disability insurance benefits and supplemental
security income (“SSI”) under the Social Security Act. The Court has jurisdiction over the
subject matter of this action under 42 U.S.C. § 405(g). The parties have consented to the
exercise of authority by the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
[Doc. 9.] The Court has reviewed the parties’ briefs and the entire administrative record,
including the hearing transcript and the medical evidence. The Court has now heard oral
argument on the pleadings of the parties and the Court now issues its ruling in this opinion.
Based on the following, the Court will reverse and remand the Commissioner’s decision.
I.

Issues for Review
Jaco presents the following issues for review. First, Jaco contends that the administrative

law judge’s (“ALJ”) residual functional capacity (“RFC”) determination is not supported by
evidence in the record and is based on the ALJ’s “layperson interpretation” of the record,
because there is no opinion regarding his physical functional limitations. Second, Jaco contends

that the ALJ’s RFC determination did not include limitations for his severe impairments of
chronic obstructive pulmonary disease (“COPD”) and cervical radiculopathy. Third, Jaco asserts
that the ALJ was required to obtain testimony from a vocational expert. Fourth, Jaco states that
the ALJ failed to properly determine his credibility. The Commissioner contends that the ALJ’s
decision is supported by substantial evidence in the record as a whole.
II.

Standard of Review
This Court reviews decisions of the ALJ to determine whether the decision is supported

by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). Substantial evidence is
less than a preponderance but is enough that a reasonable mind would find it adequate to support
the Commissioner’s conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002).
See also Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007). Therefore, even if a court finds that
there is a preponderance of the evidence against the ALJ’s decision, the ALJ’s decision must be
affirmed if it is supported by substantial evidence. Clark v. Heckler, 733 F.2d 65, 68 (8th Cir.
1984). To determine whether the Commissioner’s final decision is supported by substantial
evidence, the Court is required to review the administrative record as a whole and to consider:
(1) The findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating physicians;
(4) The subjective complaints of pain and description of the claimant’s physical
activity and impairment;
(5) The corroboration by third parties of the claimant’s physical impairment;
(6) The testimony of vocational experts based upon proper hypothetical questions
which fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.

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Brand v. Sec’y of Dept. of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).
III.

Discussion
The ALJ found that Jaco had the severe impairments of status post back surgeries,

degenerative disc disease of the cervical and lumbar spines, COPD, and cervical radiculopathy.
(Tr. 13.) The ALJ also found that Jaco had the RFC to perform light work, except that he was
limited to occasional overhead reaching bilaterally. (Tr. 14.)
A.

Credibility

First, Jaco contends that the ALJ did not properly assess his credibility, because the ALJ
misinterpreted the evidence regarding his renewal of his hunting and fishing licenses and his
activities of daily living. In considering subjective complaints, the ALJ must fully consider all of
the evidence presented, including the claimant’s prior work record, and observations by third
parties and treating examining physicians relating to such matters as:
(1) The claimant’s daily activities;
(2) The subjective evidence of the duration, frequency, and intensity of the claimant’s
pain;
(3) Any precipitating or aggravating factors;
(4) The dosage, effectiveness, and side effects of any medication; and
(5) The claimant’s functional restrictions.
Polaski v. Heckler, 725 F.2d 1320, 1322 (8th Cir. 1984). It is not enough that the record contains
inconsistencies; the ALJ is required to specifically express that he or she considered all of the
evidence. Id. “Although an ALJ may not discredit a claimant’s subjective pain allegations
solely because they are not fully supported by objective medical evidence, an ALJ is entitled to
make a factual determination that a claimant’s subjective pain complaints are not credible in light
of objective medical evidence to the contrary.” Gonzales v. Barnhart, 465 F.3d 890, 895 (8th
Cir. 2006). The ALJ, however, “need not explicitly discuss each Polaski factor.” Strongson v.
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Barnhart, 361 F.3d 1066, 1072 (8th Cir. 2004). The ALJ need only acknowledge and consider
those factors. Id. Although credibility determinations are primarily for the ALJ and not the
court, the ALJ’s credibility assessment must be based on substantial evidence. Rautio v. Bowen,
862 F.2d 176, 179 (8th Cir. 1988).
In this case, the ALJ found that Jaco was not credible for several reasons. First, the ALJ
noted that Jaco had violated his narcotics agreement with the pain management clinic. (Tr. 15.)
The ALJ also noted that Jaco had a history of felony possession of controlled substances. (Tr.
15.)

In evaluating Jaco’s testimony, the ALJ determined that his testimony regarding the

positive drug screens was vague, exaggerated, and unpersuasive and his statements regarding his
activities of daily living were inconsistent with the objective record. (Tr. 15.) The ALJ found
that given Jaco’s limited financial resources, the renewal of his hunting and fishing licenses
suggested that he continued to hunt and fish more frequently than he alleged. (Tr. 15.) The ALJ
also referred to Jaco’s poor earnings history. (Tr. 15.) Finally, the ALJ noted that Jaco was
observed by state disability investigators driving an hour to and from his home for his
consultative examination.
Based upon a review of the record as a whole, the Court finds that the ALJ’s credibility
assessment was supported by substantial evidence. All of the factors considered by the ALJ can
be considered when assessing credibility in social security disability case. See Juszczyk v.
Astrue, 542 F.3d 626, 632 (8th Cir. 2008) (If an ALJ explicitly discredits a claimant’s testimony
and gives good reasons for doing so, deference is given to the ALJ’s credibility determination);
Goff v. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005) (ALJ can disbelieve subjective complaints if
there are inconsistencies in the evidence as a whole and lack of corroborating evidence is just
one of the factors the ALJ considers); Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Circuit

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2005) (significant daily activities may be inconsistent with claims of disabling pain);
Fredrickson v. Barnhart, 359 F.3d 972, 976 (8th Cir. 2004) (claimant’s credibility lessened when
considering sporadic work record reflecting relatively low earnings and multiple years with no
reported earnings); Anderson v. Barnhart, 344 F.3d 809, 815 (8th Cir. 2003) (a claimant’s
misuse of medications is a valid factor in an ALJ’s credibility determination).

The ALJ

considered several factors in evaluating Jaco’s credibility. He provided good reasons for the
credibility determination and his determination was supported by the record. Based on the
foregoing, the Court finds that the ALJ’s credibility determination was supported by substantial
evidence in the record as a whole.
B.

RFC Determination

Next, Jaco contends that the ALJ made several errors when determining his RFC. Jaco
states that the ALJ’s determination that he could perform light work limited to occasional
overhead reaching bilaterally is not supported by evidence in the record and is based on the
ALJ’s layperson interpretation of the record. Jaco states that the ALJ should have obtained
additional evidence to assesses his physical functional limitations. Jaco also contends that the
ALJ failed to include limitations that would address his COPD and cervical radiculopathy.
The RFC is defined as what the claimant can do despite his or her limitations, and
includes an assessment of physical abilities and mental impairments. 20 C.F.R. §§ 404.1545(a),
416.945(a). The RFC is a function-by-function assessment of an individual’s ability to do work
related activities on a regular and continuing basis. 1 SSR 96-8p, 1996 WL 374184, at *1 (July 2,
1996). It is the ALJ’s responsibility to determine the claimant’s RFC based on all relevant
evidence, including medical records, observations of treating physicians and the claimant’s own

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A “regular and continuing basis” means 8 hours a day, for 5 days a week, or an equivalent work schedule. SSR
96-8p, 1996 WL 374184, at *1.

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descriptions of his limitations. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). An
RFC determination made by an ALJ will be upheld if it is supported by substantial evidence in
the record. See Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006). “[T]he ALJ is not qualified
to give a medical opinion but may rely on medical evidence in the record.” Wilcockson v.
Astrue, 540 F.3d 878, 881 (8th Cir. 2008). In making a disability determination, the ALJ shall
“always consider the medical opinions in the case record together with the rest of the relevant
evidence in the record.” 20 C.F.R. §§ 404.1527(b), 416.927(b); see also Heino v. Astrue, 578
F.3d 873, 879 (8th Cir. 2009).
Based on a careful review of the evidence in the record as a whole, the Court finds that
the ALJ’s RFC determination is not supported by substantial evidence in the record as a whole.
The ALJ has a duty to fully develop the record. Smith v. Barnhart, 435 F.3d 926, 930 (8th Cir.
2006) (internal citation omitted). In some cases, this duty requires the ALJ to obtain additional
medical evidence, such as a consultative examination of the claimant, before rendering a
decision. See 20 C.F.R. §§ 404.1519a(b), 416.1519a(b). “The ALJ is required to order medical
examinations and tests only if the medical records presented to him do not give sufficient
medical evidence to determine whether the claimant is disabled.” McCoy v. Astrue, 648 F.3d
605, 612 (8th Cir. 2011) Therefore, “[a]n ALJ is permitted to issue a decision without obtaining
additional medical evidence so long as other evidence in the record provides a sufficient basis for
the ALJ’s decision.” Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995). There is no bright
line test for determining when the Commissioner has failed to develop the record and the
determination is made on a case by case basis. Battles v. Shalala, 36 F.3d 43, 45 (8th Cir. 1994).
The Court has carefully reviewed the medical evidence in this case and determined that
the ALJ should have obtained additional evidence regarding Jaco’s physical functional

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limitations. There is no evidence in the record regarding Jaco’s ability to perform work related
functions on a regular and continuing basis. The RFC determination in this case is speculative at
best.

Dr. Gardner’s consultative examination while helpful, along with the other medical

evidence of record, does not provide a complete picture of Jaco’s RFC. Therefore, the Court will
reverse and remand so that the Commissioner can obtain additional information.
Because the Court will reverse and remand this action for additional evidence and a new
RFC determination, the Court will not address Jaco’s arguments regarding the use of the
medical-vocational guidelines.
IV.

Conclusion
Based on the foregoing, the Commissioner’s decision is reversed and remanded. Upon

remand, the ALJ shall obtain additional evidence to determine Jaco’s physical functional
limitations in performing work related activities and render a new residual functional capacity
determination. The Court is aware that upon remand, the ALJ’s decision as to non-disability
may not change after addressing the deficiencies noted herein, but the determination is one the
Commissioner must make in the first instance. See Buckner v. Apfel, 213, F.3d 1006, 1011 (8th
Cir. 2000) (when a claimant appeals from the Commissioner’s denial of benefits and the denial is
improper, out of an abundant deference to the ALJ, the Court remands the case for further
administrative proceedings); Leeper v. Colvin, No. 4:13-CV-367 ACL, 2014 WL 4713280 (E.D.
Mo. Sept. 22, 2014) (ALJ duty to make disability determination).
Accordingly,
IT IS HEREBY ORDERED that the relief which Jaco seeks in his Complaint and Brief
in Support of Plaintiff’s Complaint is GRANTED in part and DENIED in part. [Docs. 1, 14.]

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IT IS FURTHER ORDERED that the Commissioner’s decision of April 18, 2013 is
REVERSED and REMANDED.
IT IS FURTHER ORDERED that upon remand the ALJ must obtain additional
evidence to determine Jaco’s physical functional limitations in performing work related activities
and render a new residual functional capacity determination.
Dated this 24th day of March, 2015.

/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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