Grothe v. Colvin
MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and remanded to the Commissioner under sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Memorandum and Order. A separate judgment in accord with this Memorandum and Order is entered this same date. Signed by District Judge Catherine D. Perry on 9/28/15. (cc: Bureau of Hearings and Appeals)(MRS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
BENJAMIN RUSSELL GROTHE,
) Case No. 1:14CV72 CDP
CAROLYN W. COLVIN,
Acting Commissioner of Social Security, )
MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) for judicial review of the
Commissioner’s final decision denying Benjamin Russell Grothe’s application for
disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§
401 et seq., and his application for supplemental security income under Title XVI,
42 U.S.C. §§ 1381 et seq. Grothe claims he is disabled because of problems with
his back, left leg, right shoulder, and both hands. After a hearing, the
Administrative Law Judge concluded that Grothe was not disabled. After
receiving additional evidence, the Appeals Council agreed with the ALJ. Because
I conclude that when the additional evidence is considered the ALJ’s decision is
not supported by substantial evidence on the record as a whole, I will reverse and
remand for further proceedings.
In June 2010, Grothe filed applications for disability income benefits and
supplemental security income. He alleged an onset date of June 30, 2008. When
his applications were denied, he requested a hearing before an administrative law
judge. Grothe then appeared with counsel at an administrative hearing on June 18,
After the hearing, the ALJ denied Grothe’s applications, and he appealed to
the Appeals Council. Grothe’s counsel submitted additional medical records to the
Appeals Council. On April 25, 2014, the Council denied his request for review.
The ALJ’s decision thereby became the final decision of the Commissioner. Van
Vickle v. Astrue, 539 F.3d 825, 828 (8th Cir. 2008).
Grothe now appeals to this court. He argues that the ALJ’s finding of nondisability is not supported by substantial evidence, specifically because (1) the ALJ
failed to give appropriate weight to the opinion of Grothe’s treating physician; and
(2) the ALJ improperly discredited Grothe’s subjective testimony about his own
limitations and pain.
Evidence Before the Administrative Law Judge
Medical records before the ALJ indicate that Grothe sustained several
injuries from a motorcycle accident in 1993, including a broken left leg which
required the insertion of a metal rod and screws, and amputation of his left ring and
middle fingers. He continued to work after that time until June of 2008. He
sustained a shoulder injury on the job in 2007, and underwent rotator cuff repair
surgery. He had surgery in 2009 to remove a large bone growth from his hip, and
in 2011 had further surgery to remove the rod in his leg.
Grothe was seen at Aurora Health Center on November 2, 2006 for an x-ray
of his lumbar spine. The test revealed a potential pars defect, and Dr. Robert Dizor
recommended an MRI or CT scan to follow up. (Tr. 346). On November 15,
2006, Grothe had a CT scan of his lumbar spine. Dr. Dizor found a fracture
through the left pars interarticularis at L5 with sclerotic margins. The scan also
showed some mild disc space narrowing at L3-4 and L5 – 51, but no significant
bulge or protrusion on the soft tissue windows. Dr. Dizor concluded Grothe
suffered from mild spondylosis on the left side. (Tr. 344).
On February 8, 2007, Grothe received a steroid injection into his L4-5 and
L5-51 facet joints for pain control. (Tr. 347).
On March 5, 2007, Dr. John K. Lee performed an MRI of Grothe’s lumbar
spine. He found mild loss of disk space height and signal at the T11 – 12 level
compatible with degenerative disk changes, but no bulge or protrusion. Dr. Lee
concluded that there was no significant disk disease in the lumbar region. He
suspected spondylolysis on the left side at L5, but no spondylolisthesis.1 (Tr. 338).
On March 19, 2008, Grothe was again seen in the emergency room at Bay
Area Medical Center. He complained of neck and lower back pain resulting from a
car accident a few days before. No fractures of the spine were found. He was
diagnosed with neck and back strain. He was prescribed ibuprofen 800 mg and
Skelaxin 800 mg, and instructed to apply ice every two hours while awake. He
was excused from work for the next three days. (Tr. 411).
Grothe was admitted to Bellin Health System Hospital Center on September
9, 2009 because of left hip pain secondary to heterotopic bone formation
surrounding his intramedullary rod. (Tr. 443). He had surgery that same day to
remove a baseball size bone spur in his left lateral hip region. (Tr. 368, 445).
On October 8, 2009, Grothe reported to Bay Area Mobility Center for an
initial physical therapy evaluation. (Tr. 368). He attended a total of 14 sessions,
until his Medicaid authorization expired on November 20, 2009. (Tr. 372). Grothe
canceled his physical therapy appointments on 10/9/09, 10/19/09, 10/27/09,
10/29/09, 11/09/09, and 11/13/09. (Tr. 378 – 383). He reported his pain level
Spondylolysis is a defect or fracture of one or both of the wing-shaped parts of a vertebra.
These "wings" help keep the vertebrae in place. When a "wing" is absent… or damaged, a
vertebra can slide forward or backward over the bone below, sometimes pressing on the spinal
cord or a nerve root. This slipping, called spondylolisthesis, usually happens at the base of the
spine. Symptoms of spondylolisthesis can include back pain and numbness or weakness in one or
both legs, sometimes leading to a loss of leg function. WebMD, (Last Revised June 4, 2014).
decreased from a 7 to a 5 on a ten-point scale as a result of the therapy sessions.
(Tr. 394, 396). On November 6, 2009, he reported that he no longer had lower
back pain, and was able to walk through the woods and hunt. (Tr. 407). He was
walking 1/4 mile every day to hunt. On November 18, 2009, he reported that his
hip had been swollen and his pain level had increased back to a level 8 out of 10.
On October 2, 2009, Grothe was seen in the emergency room at Bay Area
Medical Center. He complained of increasing left hip pain. He had run out of his
Vicodin prescription that day. An x-ray showed radiolucency (transparency) of the
intramedullary rod which may have been a fracture. He was given Lortab in the
ER, and a prescription for more Vicodin. He was also advised to be on crutches
and non-weight bearing. (Tr. 359).
On December 21, 2009, Grothe was seen by Dr. Douglas Yeatman as a new
patient at Aascend Pain Institute in Wisconsin. He complained of pain in his right
shoulder, low back, left knee, and left hip. (Tr. 487). He rated his pain as a severe
throbbing with moderate ache and pressure component. (Tr. 488). He reported
that the pool therapy he completed at Bay Area Mobility Center helped a lot. He
also reported that an anti-inflammatory and hydrocodone helped with his pain.
(Tr. 489). Upon examination, straight leg testing was negative. Dr. Yeatman
noted that Grothe had a decreased range of motion with decreased flexibility of the
cervical spine with extension rotation. He was diagnosed with a fractured femur,
lumbar pain, left shoulder pain, cervical radiculopathy, and myofascial pain. (Tr.
490). Dr. Yeatman ordered an MRI of Grothe’s lumbar spine. He prescribed a
Fentanyl patch (12 mcg/hr), Diclofenac Potassium (25 mg), and Cyclobenzaprine
(10 mg). (Tr. 491).
Grothe was seen by Dr. Carrie Voss for a follow-up exam at Aascend Pain
Center on January 11, 2010. He complained of left hip and left knee pain, which
he rated at a level 9. (Tr. 492-493). He also reported headaches and numbness and
tingling in his upper extremities. Dr. Voss prescribed Kadian (30 mg), and took
him off of the Fentanyl patch due to a rash developing. (Tr. 493).
Grothe was seen at Cape Radiology Group on February 18, 2010. Dr.
Richard Stork performed a scanogram to measure Grothe’s leg lengths. The test
revealed that his right leg is 3 mm shorter than his right leg. (Tr. 351). He was
told to see his physical therapist to fit a heel lift for his right foot. (Tr. 467). Dr.
Stork also performed a cervical spine exam and noted that vertebral body heights
and disc spaces were well maintained, and vertebral alignment was satisfactory.
No gross fracture or subluxation was seen. (Tr. 352).
Advanced Pain Center
Grothe was under the care of Dr. Abdul Naushad at Advanced Pain Center
from February of 2010 through June of 2010. On February 4, 2010, Grothe made
his second visit to Advanced Pain Center.2 His chief complaint was left lower
extremity pain and low back pain. He assessed his lower extremity pain at a level
9. He stated that his pain is present constantly, interferes with his sleep, and is
aggravated by standing or walking. Medication and applying heat help to relieve
the pain. Grothe assessed his low back pain at a level 5. It does not interfere with
his sleep, but is aggravated by bending forward. Grothe also reported cervical
pain. (Tr. 473). He assessed this pain at a level 5. It is aggravated by physical
activities, and can be relieved by applying heat. (Tr. 474). Grothe was diagnosed
with cervical discogenic pain, cervical facet arthropathy, left L5 spondylolysis,
lumbar facet arthropathy, and osteoarthritis. (Tr. 478). His current medications at
the time of the visit were Cyclobenzaprine HCL (10 mg), Diclofenac Potassium
(50 mg), and Kadian (30 mg). He reported an adverse reaction to the Kadian,
including hot flashes and cold sweats. (Tr. 474). His medication regimen was
changed to add Diclofenac, Percocet (10-325 mg), Zanaflex (4 mg), and Lidoderm
(5%). (Tr. 478).
Grothe had a follow-up visit at Advanced Pain Center two weeks later, on
February 18, 2010, to assess the effectiveness of his new medications. The
effectiveness of the Lidoderm, Percocet, and Zanaflex was evaluated as good. (Tr.
468). Grothe denied any side effects from his medication. (Tr. 470). He further
Medical records indicate that this was visit #2, but there is no documentation of the first visit in
the evidence before the court. (Tr. 473).
reported that his physical functioning, family relationships, social relationships,
mood, sleep patterns, and overall functioning were all better. (Tr. 471). His
prescriptions were each renewed at the same dosages for an additional 30 days.
Grothe had another medication follow-up on March 18, 2010. His diagnosis
remained the same. The effectiveness of his medications was evaluated as good.
No changes were made to his medications, and he continued to report improvement
in his activities of daily life. (Tr. 465 – 66).
Grothe had a follow-up visit for chronic left hip pain on April 15, 2010. He
rated his pain at a level 5. He was assessed with pain in joint pelvic region and
thigh, pain in joint lower leg, and spondylolysis. He demonstrated a mild to
moderate limp while walking. He also had moderate-severe tenderness in his left
hip, and diffusely moderate muscle tenderness on his left side. (Tr. 462). Voltaren
Gel was added to his current medications. (Tr. 463).
Grothe again visited Advanced Pain Center on May 13, 2010. He
complained of chronic low back pain, as well as pain in his left hip and left leg.
His current medications were: Cyclobenzaprine HCI (10 mg), Diclofenac
Potassium (50 mg), Diclofenac Sodium gel (as needed), Endocet (Oxycodone w/
acetaminophen tab 10 – 325 mg), Kadian (30 mg), Lidocaine patch (5%), and
Tizanidine HCI (4 mg). (Tr. 458). He continued to report no side effects from any
of his medications. (Tr. 459). Grothe had mild tenderness in his cervical spine,
and moderate tenderness in his lumbar spine. (Tr. 458). He also had a moderate
limp while walking. He was diagnosed with cervical discogenic pain, cervical
facet arthropathy, lumbar facet arthropathy, left L5 spondylolysis, and
osteoarthritis. (Tr. 460).
Grothe had another follow-up visit on June 10, 2010 for a refill of his
prescriptions. (Tr. 454). He continued to report no side effects from any of his
medications. (Tr. 455). He ran out of his medications early because he had been
taking extra, despite repeated warnings from his physicians at Advanced Pain
Center. (Tr. 456).
Dr. Jetuan Rowley
On August 31, 2010, Grothe was seen as a new patient by Dr. Jetuan
Rowley.3 He was there to establish care for his back pain. He reported his pain at
a level seven, occurring persistently. Grothe further reported that his pain was
aggravated by changing positions, standing, walking, and any activity, but that his
symptoms were relieved by pain medications. (Tr. 504). Upon examination, Dr.
Rowley found that Grothe had spinal posterior tenderness, paravertebral muscle
The records show Dr. Rowley’s address as 100 S. Mt. Auburn Rd., Suite 100, Cape Girardeau,
MO, and initially bear designations of Plaza Primary Care West of Southeast Missouri Hospital
in 2010 (Tr. 674). The designation switches to Southeast Primary Care – Mt. Auburn in 2011
(Tr. 678). Dr. Dannette Miller’s records, which were provided to the Appeals Council and are
discussed later, show the same address and suite number and the same designation of Southeast
Primary Care – Mt. Auburn (Tr. 680). It thus appears that Drs. Rowley and Miller were in the
same primary care practice affiliated with Southeast Missouri Hospital.
spasms, and bilateral lumbosacral tenderness. Grothe also had extremely limited
extension of his leg. A straight leg raising test was negative in both the supine and
sitting positions. (Tr. 506). Dr. Rowley prescribed endocet (10-325 mg) as needed
for pain, and continued Grothe on Lidoderm and Zanaflex. He recommended an
MRI before seeing an orthopedic spine specialist in a few months. (Tr. 506).
Grothe had an MRI of his lumbar spine on January 4, 2011 at Southeast
Missouri Hospital. Dr. Sharon Wallace interpreted the results and found no lumbar
disc herniation, but mild lumbar degenerative spondylosis. (Tr. 499).
On January 6, 2011, Grothe had an x-ray of both femurs. Dr. William
Pelton interpreted the results. The x-ray showed a left femur intramedullary rod
with fixation screws, as well as a segment of irregular cortical thickening with
heterogeneous sclerosis. (Tr. 495). On the same day, Grothe had an x-ray of both
hips and his pelvis. (Tr. 497). Dr. Pelton noted that calcifications seen in the
region of the proximal left femur likely relate to postsurgical or post-traumatic
heterotopic ossification. (Tr. 497).
On January 7, 2011, Grothe had another office visit with Dr. Rowley to
discuss the test results. Dr. Rowley noted that the MRI showed facet arthropathy
and some disc bulges. (Tr. 501).
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St. Louis Spine Care Alliance
On January 18, 2011, Grothe was seen at St. Louis Spine Care Alliance. He
complained of pain in his low back, and soreness to his left hip and left thigh. His
current medications were Oxycodone-Acetaminophen (10-325 mg) and Zanaflex
(4 mg). (Tr. 532). A straight-leg raising test of each leg was negative at 90
degrees. (Tr. 533). Grothe filled out a patient history health questionnaire, in
which he stated his injury was ongoing since 2003. (Tr. 535). The last time he
worked was July 3, 2008. (Tr. 539). He also listed that he could drive, walk,
climb stairs, do housework, sit, do some yard work, stand, and get dressed. (Tr.
538). He reported that his pain varied from 40% intensity on his best days to 90%
on his worst days. (Tr. 540). Dr. David Robson assessed his condition as low
back pain and left hip pain, status post trauma, and a possibility of synovial cysts
on the opposite side. Dr. Robson ordered an EMG and nerve conduction study.
On January 26, 2011, Dr. Patricia Hurford performed an EMG/nerve
conduction study to rule out radiculopathy versus peripheral nerve entrapment.
(Tr. 541). The results showed a normal study of the left lower extremity and
lumbar paraspinals. No electrodiagnostic evidence was found of a peripheral nerve
entrapment/compression, plexopathy or lumbrosacral plexopathy. (Tr. 542).
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Grothe returned to Dr. Robson for a follow-up on February 10, 2011. He
complained of pain in joint – hip and pelvic area, low back pain, postoperative
heterotopic calcification, and tactile decrease in his leg and foot. His current
medications were Norflex tabs, Oxycodone-Acetaminophen (10-325 mg), and
Zanaflex (4 mg). (Tr. 515). After reviewing the EMG results, Dr. Robson
believed his pain resulted mainly from his left hip, and referred him to Dr. Kurt
Merkel for further evaluation. (Tr. 516).
Dr. Kurt Merkel
On February 2, 2011, Grothe was seen by Dr. Kurt Merkel at Town &
Country Orthopedics, Inc. Dr. Merkel noted that Grothe walks with a slight limp,
that he had tenderness over the greater trochanter, and significant weakness against
gravity due to hip abduction. He also noticed a positive Trendelenburg sign and
gait. (Tr. 641). He assessed Grothe with enthesopathy of the hip region, and
recommended surgery to remove the rod and screws in his left leg. (Tr. 653).
On March 18, 2011, Grothe had his intramedullary rod and screws removed
by Dr. Merkel at Missouri Baptist Medical Center. He was released from the
hospital two days after the surgery, fully weight bearing at the time of his
discharge. (Tr. 564).
Grothe continued to see Dr. Merkel. On April 1, 2011, Dr. Merkel assessed
Grothe with unspecified mechanical complication of his internal orthopedic device,
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implant, and graft. Grothe was walking with crutches at this visit. It was
recommended that he start to wean down his pain medications. He was also sent to
physical therapy. (Tr. 651). On May 27, 2011, Dr. Merkel assessed Grothe with
unspecified mechanical complication of his internal orthopedic device, implant,
and graft. Grothe was still walking with a cane at this visit. Dr. Merkel ordered an
MRI.4 (Tr. 642). On July 18, 2011, Dr. Merkel diagnosed Grothe with a possible
gluteal neuropathy, and ordered an EMG of the left lower extremity.
Following his surgery, Grothe attended physical therapy at Mid America
Rehab for eleven visits from April 5, 2011 through May 19, 2011, and an
additional thirteen visits from June 15, 2011 through August 10, 2011. (Tr. 604,
572). His primary complaint was pain and weakness in his left leg from hip to
knee. (Tr. 631). Grothe reported that he slipped and fell on wet concrete on July
4, 2011, increasing his pain. (Tr. 587). The discharge note states that Grothe did
not make any appreciable progress with therapy efforts. (Tr. 572).
Dr. Glenn Landon, an orthopedic surgeon specializing in hip and knee
surgeries, reviewed and evaluated Grothe’s medical records and history. (Tr. 553 –
62). On October 12, 2011, he submitted a report opining that Grothe’s pain was
due primarily to abductor muscle damage from the heterotopic ossification and its
removal. (Tr. 657). He noted that further physical therapy was unlikely to be
There are no records indicating whether this MRI occurred.
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effective and suggested Grothe consult a specialist in reconstructive hip surgery.
He said that Grothe should strongly consider a new surgical procedure involving
transfer of gluteus maximus tissue to the greater trochanter. (Tr. 658).
On January 9, 2012, Grothe had a hip evaluation performed by a doctor
whose name is illegible. (Tr. 668 – 70). He was diagnosed with left hip abductor
weakness, back pain, and pain to his left lateral hip. This doctor recommended
physical therapy and inversion therapy.
Medical Source Statement
On January 2, 2012, Dr. Danette Miller completed a Medical Source
Statement – Physical for Grothe. (Tr. 662 – 65). She noted the following
impairments: left hip atrophy, chronic left buttocks, hip, and leg pain, and
neuropathy. (Tr. 662). She assessed the following physical strength limitations:
lift or carry frequently up to 10 lbs.; lift or carry occasionally up to 15 lbs.; stand or
walk continuously less than 15 minutes; stand or walk throughout an 8-hour
workday up to 30 minutes; sit continuously less than 15 minutes; sit throughout an
8-hour workday up to 1 hour; push/pull limited – unable to use left leg and foot for
any pushing or pulling. (Tr. 662 – 63). She further noted that he can never climb,
stoop, kneel, crouch, or crawl, and that he can occasionally balance, bend, and
reach. He should never be exposed to vibrations, hazards, or heights, and should
avoid moderate exposure to extreme cold, heat, weather, and wetness or humidity.
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He should avoid concentrated exposure to dust and fumes. He needs to lie down
or recline five to six times per day for fifteen to thirty minutes at a time. His
narcotic pain medications cause sedation. (Tr. 664).
Medical Statement for Social Security Disability Claim
Dr. Miller completed a Medical Statement Regarding Hip Problems for
Social Security Disability Claim form.5 (Tr. 666). She assessed Grothe with
chronic hip pain, chronic hip stiffness, limitation of motion of hip, hip instability,
hip contracture, bony or fibrous ankylosis of hip, joint space narrowing of hip,
bony destruction of hip, inability to ambulate effectively, and a history of
reconstructive surgery or surgical arthrodesis of hip and ability to ambulate
effectively did not return or is not expected to return within 12 months of onset.
Dr. Miller further assessed that Grothe can work up to one hour per day,
stand for fifteen minutes at one time, sit for fifteen minutes at one time,
occasionally lift twenty pounds, frequently lift ten pounds, occasionally bend and
balance, and never stoop, climb a ladder, or climb stairs. She opined that Grothe
suffers from severe pain. (Tr. 666).
Testimony at the June 18, 2012 Hearing
Grothe testified at the hearing before the ALJ. He stated that he was 35
years old at the time of the hearing. He completed twelfth grade, but did not have
This form is undated, so it is unclear whether it was completed before or after the medical
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enough credits to earn his high school diploma. He does not have a GED. He
testified that he had been living with his parents in their home since January of
2010. His son, aged sixteen, lived with him full-time and his daughter, aged
thirteen, lived with him during the summers.
Grothe testified that he last worked as a machine operator in a paper factory,
from 2000 – 2008. He lifted 100 pounds at a time at that job. He has also worked
as an assembler at a wicker furniture company, a grinder in a foundry, an
automotive detailer, and a maintenance worker.
Grothe testified that he was injured in a motorcycle accident in 1993. He
has had multiple surgeries on his left hip and leg since that time. He also had
multiple surgeries to his left hand, leaving his left middle finger amputated just
above the middle joint, and his left ring finger amputated just below the middle
joint. He testified that he experiences “phantom fingers,” where he feels the
fingers are there even though they are missing. This often causes him to drop
things. On the right hand, Grothe testified that he has had four surgeries during
1993 – 1996 to repair his right pinky finger. He is now missing the middle joint
completely and cannot bend the finger at all.
Grothe testified that he injured his shoulder on the job. It is unclear if this
injury and subsequent surgery took place in 2007 or 2008. (Tr. 55, 59).6 He
There are no medical records in evidence regarding this surgery.
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received a workman’s comp settlement for this injury as well as unemployment
benefits.7 At the same time, he started having trouble with his hip again and had
corrective surgery. (Tr. 58). He testified that his hip and lower back hurt all the
time. On a daily average, he rates his pain a seven on a scale of one to ten.
OxyContin reduces the pain level to a three or four when he is lying down at night.
Grothe testified that he experiences panic attacks, but Xanax controls them.
He further testified that he has problems concentrating due to constant pain.
Grothe testified that he feels depressed, and cries occasionally. He is not under the
care of a psychologist or psychiatrist, has never been in a mental hospital, and has
never felt suicidal.
Grothe testified that he is on the following medications: OxyContin,
hydrocodone, Lexapro, and Xanax. He further testified that the OxyContin causes
him constipation, nausea, and makes him tired. The hydrocodone also makes him
feel very tired, and forgetful.
Grothe testified that he can sit for about an hour, and then he needs to stand
up. He can stand for approximately twenty minutes at a time, and then he needs to
sit or lie down. He testified that he does this sitting and standing repeatedly all
day. He further testified that he lies down five to six times in an eight hour day,
for fifteen to thirty minutes at a time. He can walk three to five blocks. He
These benefits ended in the beginning of 2010.
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testified that he cannot bend, stoop, crouch, kneel, or crawl. His son helps him to
put on his socks and shoes in the morning. He can climb some stairs as long as he
has a hand rail. Grothe testified that he uses a cane at the advice of his attending
physician, Dr. Danette Miller. He has been seeing Dr. Miller since 2010. He
further testified that he wears a brace for at least eight hours a day around his lower
back to help him with balance. The brace is uncomfortable, but without it, he
tends to fall. He fell once in the shower, and once in the driveway.
Grothe testified that he drives approximately twenty-five (25) miles per
week. He does not cook, clean, wash dishes or laundry, mow the grass, nor
performs any other household chores. The ALJ and Grothe had the following
In 2010, you say you lived with your parents with your two
kids, no problem with personal care, cut grass, do laundry,
wash dishes, drive, shop a few hours and go walk a mile.
How much of that do you still do?
Grothe: I don’t do any of that. Actually, that – when I filled that out, I
mean, it was – when I filled that out, that was more of a
mistake when I filled it out.
(Tr. 66). Grothe testified that he spends most of his waking time watching
television. He rarely goes out of the house except to walk a few blocks daily, or to
take his son to school. He spends his evenings at home.
Medical expert Dr. Arthur Lorber also testified before the ALJ. Dr. Lorber
did not examine Grothe in person, but did review the medical evidence in the
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record. (Tr. 38 – 39). Dr. Lorber also asked Grothe several questions about the
hip spica brace he was wearing, and the medications he was currently taking. (Tr.
39 – 42).
Dr. Lorber testified that Grothe was in a motorcycle accident in 1993, and
sustained a fracture of his left femur. He testified that Grothe was treated with the
insertion of an intramedullary rod which had four locking screws. Dr. Lorber
testified that a scanogram in February of 2010 revealed a 3 mm leg length
inequality, which would not be clinically apparent and is a non-issue. He testified
that at some point after the insertion of the intramedullary rod, one of the two distal
locking screws broke. Dr. Lorber also considered this to be a non-issue and
testified that it would not be a source of pain. Dr. Lorber testified that Grothe
developed heterotopic bone formation. He explained that this bone formation
would have occurred within the first year after the insertion of the rod, so Grothe
had lived with it for at least fifteen years before the excision, and performed
relatively strenuous jobs during that time. Dr. Lorber testified that Grothe is
ambulatory and does not use an assistive device aside from the brace. Dr. Lorber
testified that Grothe does not meet or equal Listing 1.02A as a result of his left hip
or femoral condition, but he does have a severe impairment as defined by the
Social Security Administration.
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Dr. Lorber testified that the x-rays in the record showed no evidence of a
compression fracture in Grothe’s lumbar spine. He stated that there was no
convincing evidence of focal neurologic deficit,8 nerve root impingement, or
severe or significant central spinal canal stenosis. Dr. Lorber testified that Grothe
does not meet or equal Listing 1.04A or C, but he does have a severe impairment
as defined by the Social Security Administration.
Dr. Lorber further testified that Grothe sustained injuries to his left third and
fourth fingers at the time of his motorcycle accident, and underwent amputation of
those fingers. He testified that the amputation affects Grothe’s ability to perform
fine fingering activities and handling. Dr. Lorber testified that at some time in the
past, Grothe sustained an injury to his right shoulder and underwent arthroscopy to
repair his rotator cuff. Dr. Lorber testified that Grothe does not meet or equal
Dr. Lorber testified that Grothe had a reduced functional capacity (RFC) as
follows. He could occasionally lift 20 pounds and frequently lift 10 pounds; could
occasionally bend, stoop, crouch, and kneel, but should not crawl; should not work
at unprotected heights, climb ladders, scaffolds, or ropes; should avoid exposure to
concentrated vibrations; could occasionally operate foot pedals with either foot;
A focal neurologic deficit is a problem with nerve, spinal cord, or brain function. MedLine
Plus, (Last Revised: December 15, 2014).
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could occasionally climb and descend stairs and ramps; could perform overhead
activities with his right arm occasionally; and, could push or pull frequently with
his right arm in a position other than overhead. Dr. Lorber testified that in regards
to manipulative abilities, Grothe could only occasionally perform fine fingering
with the left hand but had no restrictions on the right hand. Dr. Lorber also
testified that Grothe’ ability to stand and walk was limited to no more than four
hours per day for one hour at a time; that he could sit for at least six hours per day
for one hour at a time, with the option to stand for two or three minutes after one
hour of sitting.
Vocational expert John F. McGowan also testified before the ALJ. The ALJ
asked Mr. McGowan to assume a hypothetical person the age of 36 with a limited
education and past relevant work experience the same as Grothe, capable of
performing only sedentary work. The hypothetical person could lift, carry, push,
and pull 20 pounds occasionally, 10 pounds frequently, sit for six hours out of
eight, stand and/or walk for two out of eight, with a sit/stand option during the day.
The person could have no exposure to ladders, ropes or scaffolds; occasional
climbing, stopping, crouching, or kneeling, but no crawling or balancing;
occasional overhead reach on the right upper extremity; no fine fingering or gross
manipulation with the left handed. The person is right-handed; can occasionally
use foot pedals; has no exposure to moving machinery or unprotected heights; has
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no concentrated exposure to vibration; and, is limited to simple, repetitive tasks
and instructions. With those assumptions, the vocational expert testified that such
a person could perform work as a surveillance system monitor. The expert further
testified that Missouri had 1,950 such jobs, and there were 81,410 nationally.
Evidence Submitted to the Appeals Council9
The following additional evidence was presented to the Appeals Council.
Dr. Corey Solman
On June 20, 2012, Dr. Cory Solman of the U.S. Center for Sports Medicine
evaluated Grothe for left hip pain and weakness. He concluded that the removal of
the heterotopic ossification, along with a large portion of the abductor muscle, left
Grothe with some chronic nerve pain and permanent and persistent weakness in his
hip abductors. (Tr. 672). Dr. Solman recommended that it would be beneficial
and medically necessary for Grothe to wear a hip spica brace to allow him to walk
better, have less pain, and be able to perform activities of daily living. (Tr. 672).
Dr. Stephanie Miller
The first records from Dr. Stephanie Miller are dated October 12, 2011. (Tr.
680). This visit is designated as an “established patient/office visit” and, as noted
above, Dr. Miller appears to be in the same practice as Grothe’s earlier primary
Although this evidence was not submitted to the ALJ, “where, as here, the Appeals Council
considers new evidence but denies review, we must determine whether the ALJ’s decision was
supported by substantial evidence on the record as a whole, including the new evidence.”
Davidson v. Astrue, 501 F.3d 987, 990 (8th Cir. 2007).
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care doctor, Dr. Jetuan Rowley. His chief complaint was left leg pain. (Tr. 681).
Upon examination, she noted significant weakness in his left hip flexion and knee
extension, as well as wasting of his left gluteus and quads. Her treatment notes
state “He has had multiple surgeries to repair [his left leg.] One of these surgeries
ended up severing a nerve in the left glut that has left him with more weakness and
wasting.” She assessed him with pain in joint involving pelvic region and thigh,
stemming from nerve damage and prior surgeries. She replaced his valium
prescription with one for baclofen. (Tr. 682). At a follow up visit on November
10, 2011, Dr. Miller again noted that Grothe was positive for bone/joint symptoms,
and muscle weakness in his lower left extremities. Grothe reported that the
baclofen was helping more than anything else so far. (Tr. 684).
On December 20, 2011, Grothe again saw Dr. Miller, complaining of left hip
pain. He stated that the pain had become “unbearable,” and that he was unable to
sleep longer than two hours per night. (Tr. 687). Her treatment notes also indicate
that Grothe had left hip pain with lateral palpation, atrophy of hip and thigh,
decreased mobility, and gait with limp. Dr. Miller increased his pain medications,
and noted that he had an upcoming appointment with a specialist to discuss
possible reconstructive surgery of his hip. (Tr. 688).
At a follow up visit on January 20, 2012, Grothe stated that the new
medications had helped somewhat. Dr. Miller noted that he was positive for back
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pain, bone/joint symptoms, and muscle weakness in the lower left extremities.
Grothe also complained of depression at this visit. Dr. Miller noted that he had the
symptoms of a major depressive episode. (Tr. 689).
On February 3, 2012, Dr. Miller saw Grothe because of pain in his left hand.
He had fallen at home three days earlier, and his hand was swollen and aching. No
obvious fracture was seen on xray. (Tr. 692).
On February 20, 2012, Grothe was seen by Dr. Miller for a medication refill
and follow up of his depression. Dr. Miller noted that his status was improved by
Lexapro. Grothe reported that he was starting to feel like his old self again. (Tr.
On February 24, 2012, Grothe was seen by Dr. Jamie Harrison for a sudden
swelling of his ankle. (Tr. 697). Dr. Harrison assessed him with swelling of limb
on the left side, above the baseline chronic edema. Dr. Harrison also noted that
Grothe had recently been on a three hour car ride. She ordered an ultrasound to
rule out deep vein thrombosis, and instructed Grothe to return to the clinic in one
week to follow up with his primary care physician, Dr. Miller. (Tr. 698).
Grothe saw Dr. Miller again on March 5, 2012, to discuss his medications.
He requested that he be switched to Xanax and taken off of Ambien and Valium.
(Tr. 699). Dr. Miller agreed to this change. (Tr. 700). He returned again on
March 19, 2012 for a medication follow up, and reported that he was doing much
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better on the Xanax. He used it 2-4 times daily, and was starting to be able to sleep
better. (Tr. 702). He was also given a prescription for Jobst stockings, due to
some swelling of his leg. (Tr. 703).
Dr. Miller saw Grothe on June 26, 2012 for another follow up. She refilled
his Xanax prescription, and noted that he was now wearing a fixed brace for his
low back and left upper leg and hip. She noted that he feels more stable with the
brace. (Tr. 705). She also noted that Grothe had been told by specialists in St.
Louis that his hip and leg damage is likely permanent and future surgeries will not
fix the problem. He was instructed to call for his monthly pain medications. (Tr.
Standard for Determining Disability Under the Social Security Act
Social security regulations define disability as the inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than twelve months. 42
U.S.C. § 416(i)(1); 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 404.1505(a); 20
C.F.R. § 416.905(a).
Determining whether a claimant is disabled requires the Commissioner to
evaluate the claim based on a five-step procedure. 20 C.F.R. § 404.1520(a),
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416.920(a); see also McCoy v. Astrue, 648 F.3d 605, 611 (8th Cir. 2011)
(discussing the five-step process).
First, the Commissioner must decide whether the claimant is engaging in
substantial gainful activity. If so, she is not disabled.
Second, the Commissioner determines if the claimant has a severe
impairment which significantly limits her physical or mental ability to do basic
work activities. If the impairment is not severe, the claimant is not disabled.
Third, if the claimant has a severe impairment, the Commissioner evaluates
whether it meets or exceeds a listed impairment found in 20 C.F.R. Part 404,
Subpart P, Appendix 1. If the impairment satisfies a listing in Appendix 1, the
Commissioner will find the claimant disabled.
Fourth, if the claimant has a severe impairment and the Commissioner
cannot make a decision based on the claimant's current work activity or on medical
facts alone, the Commissioner determines whether the claimant can perform past
relevant work. If so, she is not disabled.
Fifth, if the claimant cannot perform past relevant work, the Commissioner
must evaluate whether the claimant can perform other work in the national
economy. If not, she is declared disabled. 20 C.F.R. § 404.1520; § 416.920.
When evaluating evidence of pain or other subjective complaints, the ALJ is
never free to ignore the subjective testimony of the plaintiff, even if it is
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uncorroborated by objective medical evidence. Basinger v. Heckler, 725 F.2d
1166, 1169 (8th Cir. 1984). The ALJ may, however, disbelieve a claimant’s
subjective complaints when they are inconsistent with the record as a whole. See
e.g., Battles v. Sullivan, 902 F.2d 657, 660 (8th Cir. 1990). In considering
subjective complaints, the ALJ is required to consider the factors set out by Polaski
v. Heckler, 739 F.2d 1320 (8th Cir. 1984), which include:
claimant’s prior work record, and observations by third parties
and treating and examining physicians relating to such matters
as: (1) the objective medical evidence; (2) the subjective
evidence of the duration, frequency, and intensity of plaintiff’s
pain; (3) any precipitating or aggravating factors; (4) the
claimant’s daily activities; (5) the dosage, effectiveness and
side effects of any medication; and (6) the claimant’s functional
Id. at 1322. When an ALJ explicitly finds that the claimant’s testimony is not
credible and gives good reasons for the findings, the court will usually defer to the
ALJ’s findings. Casey v. Astrue, 503 F.3d 687, 696 (8th Cir. 2007).
The ALJ’s Decision on September 20, 2012
The ALJ found that Grothe was not disabled from June 30, 2008, until the
time of his decision. In reaching his decision, he followed the five-step sequential
evaluation process, noting at step one that Grothe had not engaged in substantial
gainful activity since June 30, 2008.
Proceeding to step two, the ALJ found that Grothe had the following severe
impairments: status post left femur fracture, status post right rotator cuff repair,
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status post left finger amputation, left abductor muscle damage, possible
spondylosis at L5, and neuroforminal stenosis at L3 through L5. The ALJ further
found that Grothe had no mental impairment or combination of mental
impairments that limited his ability to perform basic work activities. In making
this determination, he stated: “The claimant has no restrictions in activities of daily
living, social functioning, or maintaining concentration, persistence, or pace. The
claimant has had no repeated episodes of decompensation of extended duration
resulting in a loss of adaptive functioning.” (Tr. 21).
At step three, the ALJ found that Grothe did not have an impairment or
combination of impairments that meets or medically equals the severity of one of
the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ
noted that there was no consistent evidence over a twelve month period of gross
anatomical deformity with involvement of a major peripheral weight-bearing joint
with the inability to ambulate effectively or to perform fine or gross movements
effectively on a sustained basis. Additionally, there was no medical evidence over
a twelve month period of nerve root compression. The ALJ also noted that
medical expert Dr. Lorber testified that Grothe did not meet or medically equal any
listing, and specifically did not meet listing 1.02 or 1.04.
The ALJ then made a determination of Grothe’s residual functional capacity.
He found that Grothe could lift and carry twenty pounds occasionally and ten
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pounds frequently with sitting six hours, standing two hours, and walking two
hours, with a sit/stand option, during a typical eight-hour workday. Grothe could
occasionally stoop, crouch, kneel, and climb ramps and stairs, but could not crawl,
balance, or climb ladders, ropes, or scaffolds. He could occasionally perform
overhead reaching with the right upper extremity. He could not perform fine
fingering or gross manipulation with the left upper extremity. He could
occasionally operate foot controls. He should avoid exposure to vibration, moving
machinery, and unprotected heights. He was limited to simple, repetitive tasks.
The ALJ also considered Grothe’s daily activities, and concluded that to the
extent they are restricted, they are restricted by his choice and not by any apparent
medical proscription. He further concluded that not all of Grothe’s alleged
symptoms were credible. For instance, Grothe alleged his disability began on June
30, 2008, but the ALJ found no evidence of record documenting any specific
medical event occurring on that date. The ALJ also noted that Grothe had worked
for approximately sixteen years after the motorcycle accident which caused the
majority of his complaints, before alleging disability. At least five of those years
(2003 – 2008) he continued to work even while complaining of back and hip pain.
Finally, the ALJ noted that Grothe received a year of unemployment compensation
after the alleged onset date, which indicates that Grothe believed he was able and
willing to work, and that he was actively searching for work.
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At the fourth step, the ALJ concluded that Grothe was unable to perform any
past relevant work, based on his residual functional capacity as explained above.
The ALJ gave minimal weight to the report and opinion of Grothe’s treating
physician, Dr. Miller. He noted that the evidence of record failed to contain any
specific treatment notes from Dr. Miller, that there were inconsistencies within Dr.
Miller’s cited limitations, and that the limitations imposed by Dr. Miller were not
supported by the total evidence of record. The ALJ further noted that Dr. Miller’s
report was simply a pre-printed form questionnaire submitted to her by Grothe’s
attorney. The ALJ instead gave great weight to the opinions and findings of
medical expert Dr. Lorber.
The ALJ then proceeded to the fifth and final step, and concluded that based
on Grothe’s age, education, work experience, and residual functional capacity, jobs
existed in significant numbers in the national economy that Grothe could perform.
In making this determination, the ALJ specifically found that Grothe was a
younger individual (between 18 – 49 years old) at the alleged disability onset date,
had an 11th grade education, and was able to communicate in English. The ALJ
further noted that if Grothe had the residual functional capacity to perform the full
range of light or sedentary work, a finding of “not disabled” would be required.
Since Grothe has additional impediments to performing all or substantially all of
the requirements of this level of work, the ALJ posed a hypothetical to the
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vocational expert. The vocational expert testified that a hypothetical person with
Grothe’s same age, education, work experience, and residual functional capacity
could perform the job of a surveillance system monitor. There are 1,950 such
positions in Missouri and 81,410 positions nationwide.
Standard of Review
This court’s role on review is to determine whether the Commissioner’s
decision is supported by substantial evidence on the record as a whole. Rucker v.
Apfel, 141 F.3d 1256, 1259 (8th Cir. 1998). “Substantial evidence” is less than a
preponderance but enough for a reasonable mind to find adequate support for the
ALJ's conclusion. Id. When substantial evidence exists to support the
Commissioner's decision, a court may not reverse simply because evidence also
supports a contrary conclusion, Clay v. Barnhart, 417 F.3d 922, 928 (8th Cir.
2005), or because the court would have weighed the evidence differently.
Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992).
To determine whether substantial evidence supports the decision, the court
must review the administrative record as a whole and consider:
(1) the credibility findings made by the ALJ;
(2) the education, background, work history, and age of the claimant;
(3) the medical evidence from treating and consulting physicians;
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(4) the plaintiff's subjective complaints relating to exertional and
(5) any corroboration by third parties of the plaintiff's impairments; and
(6) the testimony of vocational experts, when required, which is based upon
a proper hypothetical question.
Stewart v. Sec'y of Health & Human Servs., 957 F.2d 581, 585–86 (8th Cir. 1992).
Grothe argues that the ALJ erred by: (1) failing to give proper weight to the
opinion of his treating physician Dr. Danette Miller; and (2) failing to properly
consider the subjective testimony of Grothe because of a flawed and incomplete
credibility analysis. I conclude that the ALJ’s determination on both of these
issues would likely have been different had he considered the additional evidence
submitted to the Appeals Council. Given this new evidence, the ALJ’s conclusions
are not supported by substantial evidence on the record as a whole.
A treating physician’s opinions must be given controlling weight if they are
well-supported by medically acceptable clinical and laboratory diagnostic
techniques and not inconsistent with the other substantial evidence. Renstrom v.
Astrue, 680 F.3d 1057, 1064 (8th Cir. 2012); see also 20 C.F.R. § 416.927(c). But
because the record must be evaluated as a whole, the Eighth Circuit has cautioned
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that the opinions of a treating doctor do “not automatically control.” Renstrom,
680 F.3d at 1064. After reviewing the record as a whole, an ALJ may discount or
disregard a treating physician's opinion if other medical assessments are supported
by better or more thorough medical evidence, or where a treating physician gives
inconsistent opinions that undermine the credibility of the opinions. E.g., Prosch
v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000).
In this case, Dr. Stephanie Miller was Grothe’s treating physician at the time
of the hearing. She completed a medical source statement, checking boxes to
indicate that Grothe could stand or walk continuously for less than fifteen minutes
at a time, and for not more than thirty minutes total in an eight hour workday. She
also indicated that he could sit continuously for less than fifteen minutes at a time,
and for not more than one hour total in an eight hour workday. Finally, she opined
that he needed to lie down or recline five or six times a day for fifteen to thirty
minutes at a time (a total of one and a quarter hours on the low end, or as much as
three hours at the high end.)
When an ALJ discounts a treating physician's opinion, he should give good
reasons for doing so. Martise v. Astrue, 641 F.3d 909, 925 (8th Cir. 2011). Here,
the first reason the ALJ gave was that the evidence of record failed to contain
specific treatment notes of Dr. Miller. Dr. Miller’s treatment notes were later
submitted to the Appeals Council. (Tr. 674 – 712). When new and material
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evidence is submitted to the Appeals Council after the ALJ’s decision, “the
Appeals Council shall consider the additional evidence only where it relates to the
period on or before the date of the administrative law judge hearing decision.” 20
C.F.R. § 416.1470(b). “[T]he Appeals Council shall evaluate the entire record
including the new and material evidence submitted. It will then review the case if
it finds that the administrate law judge’s action, findings, or conclusion is contrary
to the weight of the evidence currently of record.” Id. When new evidence is
considered by the Appeals Council, the court must consider it in determining
whether The ALJ’s decision is supported by substantial evidence. Frankl v.
Shalala, 47 F.3d 935, 939 (8th Cir. 1995).
The ALJ noted that there was no indication to support how long Grothe
received medication or treatment from Dr. Miller. The additional evidence shows
that Grothe was under Dr. Miller’s care for at least eight months, from October 12,
2011 through June 26, 2012.10 Dr. Miller’s notes document ongoing pain and
weakness throughout the time she was treating Grothe. On October 12, 2011, she
noted significant weakness in his left hip and knee extension, and wasting of his
left gluteus and quad muscles. She also noted back pain, bone and joint symptoms,
muscle weakness, and myalgia. She continued to note weakness and pain on
These are the dates on the medical records submitted to the Appeals Council, however it
appears that Grothe remained under Dr. Miller’s care for much longer. A letter from Dr. Miller
re-asserting her opinion as to Grothe’s limitations, dated February 24, 2014, was also made part
of the record. (Tr. 712).
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November 10, and December 20, 2011, and on January 20, February 24, and June
26, 2012. Her treatment notes also include a detailed history of the medications
she prescribed and renewed at each visit.
The ALJ also noted that the severity of the limitations Dr. Miller imposed
related to sitting, standing, and walking were not supported by the total evidence of
the record. But the additional treatment records provide evidence to support Dr.
Miller’s imposed limitations. For example, edema (swelling in his ankle) was
noted after Grothe had been sitting for approximately three hours. (Tr. 697). On
another occasion, lymphedema was noted in his left lower leg, and she prescribed
Jobst stockings. (Tr. 703). This supports her opinion that Grothe had limitations
on both walking and sitting for extended periods.
Also during this time, Grothe reported symptoms of a major depressive
episode. (Tr. 689). Dr. Miller prescribed Celexa (20 mg. once per day). On
February 20, 2012, Dr. Miller noted in regards to the depression that Grothe
reported he was “starting to feel like my old self.” (Tr. 694). On March 5, 2012,
Dr. Miller noted that Grothe’s anxiety had increased again, and she switched him
to Xanax (0.5 mg, four times per day). (Tr. 699). As of March 19, 2012, Dr.
Miller reported that Grothe was doing much better on a new regimen of Xanax.
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The Appeals Council considered this additional evidence as required by 20
C.F.R. § 404.970(b), but found that the information did not provide a basis for
changing the ALJ’s decision and therefore denied review. (Tr. 2, 5). In light of
additional evidence showing that Grothe had a treatment relationship and history of
nearly a year with Dr. Miller, as well as some evidence in her treatment notes to
support her opinion as to Grothe’s physical limitations, I find that the ALJ could
change his decision as to how much weight to afford Dr. Miller’s opinion.11
The ALJ also pointed out that there were inconsistencies within Dr. Miller’s
own cited limitations. An ALJ may discount or disregard the opinion of a treating
physician where other medical assessments are supported by better medical
evidence, or where the treating physician renders inconsistent opinions that
undermine his credibility. Perkins v. Astrue, 648 F.3d 892, 897-98 (8th Cir. 2011).
The inconsistencies the ALJ points to appear to be nothing more than a difference
in pre-printed forms. For example, on one document Dr. Miller checked that
Grothe could stand and/or walk continuously for less than fifteen minutes. On a
different form, she checked that he could stand for fifteen minutes at a time.
However, on the second form, there was no option for less than fifteen minutes, but
Because I am remanding the case, I need not consider the argument that the ALJ failed to
develop the record as required under SSR 96-5p. Given that Dr. Rowley’s records from the same
practice and the radiology reports from Southeast Missouri Hospital, including some ordered by
Dr. Miller, were submitted, it appears to me that the failure to include Dr. Miller’s records may
have been an oversight on the part of the hospital when it provided the records.
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more than none. Similarly, on the first form Dr. Miller checked the box to indicate
that Grothe could occasionally lift and/or carry fifteen pounds. On the second
form, Dr. Miller’s only options were ten pounds or twenty pounds, so she chose
twenty. If these can be called inconsistencies at all, they are not the sort that
suffices to discredit a treating physician’s opinion. I conclude that, given the
additional evidence contained in the records before the Appeals Council, the
Commissioner has failed to give appropriate weight to the opinion of the treating
Grothe next argues that the ALJ committed reversible error by rejecting
Grothe’s testimony regarding his own limitations as not fully credible, without
applying the proper credibility factors under Polaski v. Heckler, 739 F.2d 1320
(8th Cir. 1984) and SSR 96-7p. In particular, Grothe argues that the ALJ did not
properly evaluate his work history, did not take into account his surgeries and
resulting limitations after his last date of work, and failed to consider the type,
dosage, and side effects of his medications.
When evaluating evidence of pain or other subjective complaints, the ALJ is
never free to ignore the subjective testimony of the claimant, even if it is
uncorroborated by objective medical evidence. Basinger v. Heckler, 725 F.2d
1166, 1169 (8th Cir.1984). However, the ALJ may disbelieve a claimant's
- 37 -
subjective complaints when they are inconsistent with the record as a whole. See,
e.g., Battles v. Sullivan, 902 F.2d 657, 660 (8th Cir.1990). When considering
subjective complaints, the ALJ must consider the factors set out in Polaski v.
Heckler, 739 F.2d 1320, 1321–22 (8th Cir. 1984), which include “the claimant's
prior work history; daily activities; duration, frequency, and intensity of pain;
dosage, effectiveness and side effects of medication; precipitating and aggravating
factors; and functional restrictions.” Jones v. Astrue, 619 F.3d 963, 975 (8th Cir.
2010); see also Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011).
An ALJ is not required to explicitly discuss each Polaski factor. Buckner,
646 F.3d at 558. It is sufficient if he acknowledges and considers those factors
before discounting a claimant’s subjective complaints. Goff v. Barnhart, 421 F.3d
785, 791 (8th Cir. 2005). “If an ALJ explicitly discredits the claimant’s testimony
and gives good reason for doing so, we will normally defer to the ALJ’s credibility
determination.” Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir.2003); see also
Browning v. Sullivan, 958 F.2d 817, 821 (8th Cir.1992) (“We will not disturb the
decision of an ALJ who seriously considers, but for good reasons explicitly
discredits, a claimant's testimony of disabling pain.”). Here the ALJ considered
each of the Polaski factors, but, especially in light of the additional evidence that
was before the Appeals Council, the reasons given for discounting Grothe’s
subjective complaints do not withstand even minimal scrutiny.
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In regards to Grothe’s work history, the ALJ noted that he had worked for
approximately sixteen years after his motorcycle accident before alleging
disability. As Grothe points out, in most cases a good work history tends to
support the credibility of the claimant, but here the ALJ found that it detracted
from his credibility. While in some circumstances a claimant’s continuing to work
after alleging disability could detract from credibility, see e.g., Orrick v. Sullivan,
966 F.2d 368, 370 (8th Cir. 1992), the circumstances of each case must be
considered. Here the medical record shows that Grothe had increasing pain over
the years. Although he continued to work for five years after he began
complaining of severe hip pain, the medical records support his complaints of
increasing pain. The ALJ found that his last substantial gainful activity was June
30, 2008. It was not until September of 2009 that the large bone mass was
removed from his hip. The medical records show that after that surgery he initially
showed some improvement but then began having worsening pain. Two years
later the rod in his leg was removed and yet even after that he continued to have a
limp and pain. Several doctors noted significant muscle damage resulting from the
Grothe argues that the consistent use and increase of medication should
bolster his credibility in that it shows that his condition has worsened over time.
Grothe points to several instances in the medical records where his medications
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were changed or increased. At the time of the hearing, Grothe was taking the
following medications: OxyContin (15 mg, twice per day), hydrocodone
(7.5mg/325mg, six times per day), Lexapro (20 mg, once per day), and Xanax (0.5
milligrams, four times per day). (Tr. 41 – 42). At various times Grothe was taking
significantly more medication than he was at the time of the hearing. The ALJ
discounted Grothe’s claims of side effects from the medications, but he did not
discuss the fact that Grothe required a variety and changing number of strong
medications to control his pain over a large number of years, which could be seen
as supporting his credibility regarding disabling pain.
Because I am remanding the case on the basis of the failure to give the
treating physician’s opinion appropriate weight, the ALJ will also have the
opportunity to reconsider Grothe’s credibility in light of the additional medical
evidence submitted by Dr. Miller.
I conclude that in light of the additional evidence submitted to the Appeals
Council, the decision of the Commissioner is not supported by substantial
evidence. I will therefore remand this case to the Commissioner to determine
whether Dr. Miller’s opinion should be given greater weight and to reconsider
Grothe’s credibility in light of the additional records.
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IT IS HEREBY ORDERED that the decision of the Commissioner is
reversed and remanded to the Commissioner under sentence four of 42 U.S.C. §
405(g) for further proceedings consistent with this Memorandum and Order.
A separate judgment in accord with this Memorandum and Order is entered
this same date.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 28th day of September, 2015.
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