LaRose v. Colvin

Filing 23

MEMORANDUM AND ORDER re: 22 SOCIAL SECURITY CROSS BRIEF re 17 SOCIAL SECURITY BRIEF re 11 Answer to Complaint, 12 Transcript of certified administrative hearing, 1 Complaint (Social Security), filed by Defendant Carolyn W. Colvin, [1 7] SOCIAL SECURITY BRIEF re 11 Answer to Complaint, 12 Transcript of certified administrative hearing, 1 Complaint (Social Security), filed by Plaintiff Kevin LaRose. 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. Signed by Magistrate Judge Thomas C. Mummert, III on 6/24/15. (CSG)

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

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Case number 1:14cv0123 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 applications of Kevin LaRose (Plaintiff) for disability insurance benefits (DIB)
under Title II of the Social Security Act (the Act), 42 U.S.C. § 401-433, and for supplemental
security income (SSI) under Title XVI of the Act, 42 U.S.C. § 1381-1383b, is before the
undersigned United States Magistrate Judge by written consent of the parties. See 28 U.S.C.
§ 636(c).
Procedural History
Plaintiff applied for DIB and SSI in August 2010, alleging he was disabled as of
January 31, 1999, by depression, panic disorder, mood disorder, schizophrenia, bipolar
disorder, learning disabilities, and back pain. (R.1 at 133-43, 170.) His applications were

1

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

denied initially and after a hearing held in August 2012 before Administrative Law Judge
(ALJ) Stephen M. Hanekamp. (Id. at 11-26, 31-72.) The Appeals Council denied Plaintiff's
request for review, thereby adopting the ALJ's decision as the final decision of the
Commissioner. (Id. at 1-4.)
Testimony Before the ALJ
Plaintiff, appearing with a non-attorney representative, and Thomas D. Upton, Ph.D.,
C.R.C.,2 testified at the administrative hearing.
Plaintiff, then thirty-nine years old, testified he left school after the tenth grade, has
a seventeen-year old daughter, and has been living with his girlfriend – a waitress – for the
past twenty years. (Id. at 36-37, 48.) He has no income of his own and receives Medicaid.
(Id. at 37.) He is 6 feet 4 inches tall and weighs 265 pounds. (Id. at 38.) He has put on
weight because of the medication he is taking. (Id.) He was in special education classes in
school. (Id. at 45.) His girlfriend helped him complete the DIB and SSI application forms
because he could not understand the questions. (Id. at 45-46.) Plaintiff does not have a
General Equivalency Degree (GED). (Id. at 36.)
Plaintiff last worked in 2006. (Id. at 37.) He quit the job, which did not last long,
because he could not be around people. (Id.) He has anxiety attacks that can last for a day
or two or longer. (Id. at 39.) He then has to lie down and try to relax. (Id.) Also, he hears
indecipherable voices at least three or four times a week at unpredictable times. (Id. at 4142.)
2

Certified Rehabilitation Counselor.
-2-

Plaintiff does not have a driver's license, having lost it in his 20s due to a driving while
intoxicated charge; he does not have the money to get it back. (Id. at 39-40, 49.) He leaves
the house a couple of times a week to go to the doctor or the pharmacy. (Id. at 40.) He does
not go to the grocery store. (Id.) He tries to do things around the house, e.g., cooking and
washing dishes. (Id. at 43.) He mows his grass when he can. (Id. at 49.) If his back bothers
him, he has to lie down for an hour or two. (Id. at 43.) This happens two or three times a
week. (Id. at 44.) Also, his back bothers him when he goes up or down stairs. (Id.) He
cannot sit or stand for very long. (Id.) He cannot walk farther than a block before having to
stop; he cannot stand or sit for longer than twenty minutes before having to change positions.
(Id. at 45.) He cannot lift "very much." (Id.) He takes Flexeril twice a day and pain
medication four times a day. (Id. at 44.)
Plaintiff has problems sleeping due to his Crohn's disease, for which he takes Humira.
(Id. at 40, 42, 50.) His concentration and memory are not good. (Id. at 40.) Lately, he has
daily problems with vomiting and diarrhea. (Id. at 42.)
Plaintiff's girlfriend goes to the doctor with him. (Id. at 46.) He is being treated by
a psychiatrist, Dr. Kerr. (Id.) In his free time, he likes to read. (Id. at 51.)
Asked if he had been let go from any jobs, Plaintiff explained that he has because he
could not do the work and could not be around people. (Id. at 53.)
Dr. Upton was asked to assume a claimant of Plaintiff's age, limited tenth grade
education, past work history, which did not include any light work, and an ability to do light
work; lift twenty pounds occasionally and ten frequently; stand, walk, or sit for a total of six
-3-

hours in an eight-hour day; do simple routine and independent tasks; and occasionally
balance, kneel, crouch, crawl, stoop, and climb ramps and stairs. (Id. at 57.) This claimant
cannot climb ladders, ropes, or scaffolds or have any social interaction that is more than
superficial. (Id.) Asked if there are any jobs such a claimant can do, Dr. Upton replied that
are and listed three: housekeeper, laundry worker, and hand packager. (Id. at 57-58.) Other
than customary work breaks, an individual cannot be off task more than 10 percent of the
time in order to maintain employment. (Id. at 58.) Nor can the individual be absent from
work three or more times a month. (Id.)
Dr. Upton further stated that there is no conflict between his testimony and the
Dictionary of Occupational Titles (DOT). (Id. at 58-59.)
Medical and Other Records Before the ALJ
The documentary record before the ALJ included forms Plaintiff completed as part of
the application process, documents generated pursuant to his applications, school records,
records from health care providers, and assessments of his mental functional capacities.
On a Function Report, Plaintiff described what he does during the day. (Id. at 189.)
He gets up, showers, dresses, works around the house, and spends time with his daughter
when she returns from school. (Id.) He usually stays home because he does not like to leave
the house. (Id.) With the help of his girlfriend, he feeds and takes care of two dogs. (Id. at
190.) Sometimes, he does the laundry or washes dishes. (Id. at 191.) He does not prepare
meals. (Id.) His impairments adversely affect his abilities to lift, squat, bend, stand, walk,
sit, remember, concentrate, understand, follow instructions, and get along with others. (Id.
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at 194.) He cannot walk farther than a couple of blocks before having to stop and rest for a
few minutes. (Id.) He cannot pay attention for longer than fifteen minutes. (Id.) He does
not follow written or spoken instructions well. (Id.) He also does not handle stress well. (Id.
at 195.) He does not get along well with authority figures because he does "not like to be
bossed or put down." (Id. at 195.) He uses a brace because his ankle was fractured. (Id.)
Plaintiff's girlfriend, Teresa Lincoln, wrote a letter explaining that Plaintiff's problem
of being in public and around people has become worse as he gets older. (Id. at 225.)
Plaintiff's school records end with the tenth grade. (Id. at 200-01.) Plaintiff received
Bs and Cs in the second semester in the academic subjects and an F in Physical Education.
(Id. at 201.) An Individualized Education Program for Plaintiff when he was in the tenth
grade indicates he was reading orally at approximately the fifth grade level, had poor writing
skills, and was spelling at the seventh grade level. (Id. at 203.) His test scores on the
Wechsler Adult Intelligence Scale – Revised (WAIS-R) placed him the low average range
of intelligence. (Id. at 207.) He was classified as learning disabled in basic reading skills and
written expression. (Id. at 208.)
The relevant medical records before the ALJ begin in August 1999 when Plaintiff
went to the emergency room at St. Francis Medical Center for back pain for the past two days
and pain with deep breaths or changes in position. (Id. at 276-78.) He had been mowing
grass, but had not injured himself. (Id. at 276, 278.) A chest x-ray was negative. (Id. at 276.)
He was diagnosed with musculoskeletal back pain, prescribed Soma and Ultram, told to
follow up with Dr. Doyle, and released. (Id. at 276-77.)
-5-

The following week, Plaintiff saw Edward Doyle, M.D., reporting that the lumbosacral
spasm that had earlier sent him to the emergency room had not gone away. (Id. at 263.) He
was prescribed Soma with codeine and was to return in three days if there was no
improvement. (Id.)
Plaintiff next saw Dr. Doyle in August 2001 for his nerves and for back pain he had
had for the past two days "after helping someone move." (Id. at 260-61, 268-69, 272.) On
a Well-Being Chart, Plaintiff checked the boxes for frequent negative thinking, keyed up/on
edge, nervousness, restlessness, sweating, irritability, tension, constant worry, and headache.
(Id. at 272.) He was not currently taking any medications. (Id.) He also reported that he
occasionally felt paranoid. (Id.) Plaintiff was diagnosed with anxiety, depression, and
lumbosacral strain; prescribed Xanax (an anti-anxiety medication) and Paxil (an
antidepressant); had a thyroid panel taken; and was to return in seven days. (Id. at 260.)
Plaintiff returned in September, reporting that the Xanax and Paxil had provided some
relief of his anxiety and depression; his lumbosacral strain had not improved. (Id. at 258-59.)
His dosages of Xanax and Paxil were increased, and he was to return in seven to ten days.
(Id.)
Plaintiff's anxiety and depression were reportedly greatly improved when he saw Dr.
Doyle on October 8. (Id. at 256-57.) His musculoskeletal system was unremarkable. (Id. at
256.) He was continued on Paxil and was to return in one month. (Id.)
Having run out of Paxil four days earlier, Plaintiff returned to Dr. Doyle on January
25, 2002, for his complaints of nervousness and also of a cough, sore throat, and back pain
-6-

due to the coughing. (Id. at 254-55, 266-67.) Plaintiff was given intermuscular injections of
an antibiotic, Rocephin, and a steroid, Depo-Medrol; prescribed Toradol, a nonsteroidal antiinflammatory drug (NSAID); and prescribed an increased dosage of Paxil. (Id. at 254.)
Plaintiff was to return in seven days. (Id.)
Plaintiff did not see Dr. Doyle again until May 13, 2010, reporting he had been off the
Paxil for a year and his nerves were now worse. (Id. at 251-53.) On a Patient Health
Questionnaire (PHQ), he marked that during the past two weeks he felt bad about himself,
he moved or spoke so slowly that people noticed or he moved around a lot more than usual,
and he was down, depressed, or hopeless. (Id. at 253.) For several days during that period,
he had little interest or pleasure in doing things, had trouble falling or staying asleep or
sleeping too much, felt tired or had little energy, had trouble concentrating, and had thoughts
he would be better off dead or had thoughts of hurting himself. (Id.) These problems made
it very difficult for him to work, take care of things at home, or get along with people. (Id.)
He had had these problems for two or more years. (Id.) Plaintiff was diagnosed with
generalized anxiety disorder (GAD) and major depression. (Id. at 252.) He was prescribed
Celexa (an antidepressant) and Klonopin (an anti-anxiety medication) and was referred for
counseling. (Id. at 252.)
Twelve days later, Plaintiff told Dr. Doyle that the medications were not working and
he was not sleeping. (Id. at 248-50.) His anxiety had increased. (Id. at 248.) His responses
on the PHQ were generally the same as before. (Id. at 250.) His medication dosages were
increased. (Id. at 249.)
-7-

When seeing Dr. Doyle again, on June 29, Plaintiff reported that the medications were
not helping. (Id. at 245-47.) He was out of the Klonopin. (Id. at 245.) His responses on the
PHQ reflected worsening symptoms, with four of the nine occurring nearly every day, four
occurring more than half the time, and only one occurring for several days during the past two
weeks. (Id. at 247.) His dosages of both medications were again increased. (Id. at 246.)
Plaintiff saw Kenneth W. Green, Jr., L.C.S.W., on July 7. (Id. at 238-41.) He was
in "considerable despair" and reported "considerable anxiety symptoms" and sporadic
problems with depression. (Id. at 239.) His anxiety began in childhood and caused, among
other things, racing thoughts and an inability to concentrate. (Id.) He was sometimes
paranoid and thought people were talking about him or making fun of him; this prevented him
from being able to maintain employment. (Id.) He heard voices, although he could not
understand what they were saying, and had problems staying asleep. (Id.) He had recently
been arrested on charges of marijuana possession. (Id. at 240.) He regularly used marijuana
to calm down. (Id.) He had a history of alcohol abuse, resulting in a DWI charge, but had
not had a drink in the last few months. (Id.) His visits to his primary care physician had been
sporadic due to lack of funds for sliding scale payments. (Id.) He lacked the ability to form
relationships with those outside his family and was unable to hold a job due to his presenting
symptoms. (Id.) He had chronic lower back pain. (Id.) On examination, his gait was
normal. (Id.) His mood was anxious; his affect was stable; his thought processes were
coherent and occasionally distracted; his reasoning was practical; his memory functions were
impaired by his worry and anxiety; his manner and attitude were cooperative; his insight was
-8-

poor; his judgment was fair; his fund of information was below expectation for his age; and
his intellectual ability was in the average to slightly below average. (Id.) He was in a longterm relationship with the mother of his daughter. (Id. at 241.) He did odd jobs and mowed
yards. (Id.) Mr. Green diagnosed Plaintiff with GAD and panic disorder with agoraphobia.
(Id.) His current Global Assessment of Functioning (GAF) was rated as 45.3 (Id.) Mr. Green
opined that Plaintiff was so anxious he was not understanding what Mr. Green was telling
him about managing panic attacks and informed Plaintiff that he should bring his girlfriend
with him to the next session. (Id.)
Plaintiff and his girlfriend met with Mr. Green on August 4. (Id. at 237.) Plaintiff had
begun taking Risperdal, which helped with his racing thoughts and auditory hallucinations
but caused him problems with his sleep. (Id.) His girlfriend thought his moods were "'a little
better.'" (Id.) Mr. Green encouraged Plaintiff to stay on his medication until seeing his
psychiatrist. (Id.)
Two weeks later, Plaintiff underwent a psychiatric evaluation by Jim F. Kerr, D.O.,
a staff psychiatrist with Community Counseling Center. (Id. at 228-33, 299-301.) Plaintiff
was described as having acceptable hygiene and grooming, being cooperative, and

3

"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 41 and 50 is indicative of "[s]erious symptoms
(e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment
in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." DSM-IV-TR
at 34 (emphasis omitted).
-9-

occasionally having trouble remembering his "historical events." (Id. at 228.) He reported
that he sometimes hears voices that are not understandable. (Id.) This started in his
childhood. (Id.) Also, he has been paranoid his whole life. (Id.) Recently, he was having
trouble sleeping and was more irritable and fidgety. (Id.) He did not like being around a lot
of people and often thought people were making fun of him. (Id.) He was then taking
Risperdal twice a day and had formerly taken Celexa and Xanax. (Id.) He thought he had
a chronic back problem. (Id.) He left school after the tenth grade to go to work and help with
family expenses. (Id. at 229.) Currently, he occasionally mowed neighborhood lawns. (Id.)
He had recently been arrested for possession of marijuana, which he used to calm down. (Id.)
He liked to fish and watch television. (Id.) On examination, Plaintiff was anxious and tense
and had a depressed mood. (Id.) He occasionally was hesitant or delayed in answering
questions. (Id. at 230.) He had no flight of ideas or loose thought associations. (Id.) He
reported having hallucinations. (Id.) He was oriented to time, place, and person, but had
difficulty with recent and remote memory. (Id.) His insight was fair. (Id.) His gait was
normal. (Id.) His intelligent quotient (IQ) appeared to be in the low, normal range. (Id.) Dr.
Kerr diagnosed Plaintiff with schizoaffective disorder, mixed type, currently depressed, and
rule out major depressive disorder, recurrent with psychotic symptoms. (Id.) He had
borderline intellectual functioning and a current GAF of 47. (Id.) Dr. Kerr recommended
Plaintiff continue to take Xanax and Risperdal and started him on Seroquel (an antipsychotic
medication). (Id. at 230, 231.) He also recommended Plaintiff apply for disability. (Id. at
230.)
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When next seeing Mr. Green, on September 2, Plaintiff reported feeling "'some better'"
and appeared calmer. (Id. at 236.)
The same day, Plaintiff consulted Dr. Doyle after falling and injuring his lower back
and twisting his right ankle. (Id. at 242-44.)
Plaintiff saw Dr. Kerr on September 19. (Id. at 280, 312.) He was hearing the voices
less frequently and was sleeping better, but still felt paranoid. (Id.) Dr. Kerr noted that
Plaintiff was ambiguous about what he meant by paranoid and thought Plaintiff's symptoms
were more consistent with social avoidance. (Id.) His GAF was 51.4 (Id.) His medications
were unchanged. (Id.)
Plaintiff did not show for his October 5 appointment with Dr. Kerr. (Id. at 279, 311.)
A notation entered in his records two days later indicated that Plaintiff was receiving
Medicaid. (Id. at 311.)
Plaintiff told Dr. Kerr when seeing him on October 19 that he had Medicaid and was
feeling "'a lot better.'" (Id. at 310.) His paranoia was better and the voices were not as bad
as before. (Id.) He was less suspicious and felt more comfortable when he was away from
his house. (Id.) He was thinking about starting to go to church. (Id.) On examination, he
had a normal gait and was oriented to time, place, and person. (Id.) His insight and judgment

4

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).
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were poor. (Id.) His diagnosis was schizoaffective disorder mixed; his GAF was 46. (Id.)
He was prescribed Xanax, Risperdal, and Seroquel. (Id.)
Plaintiff was sick and unable to keep his November 17 appointment with Dr. Kerr.
(Id. at 308.) On December 15, he did not keep his appointment, but called two hours later to
request a refill of his medications. (Id. at 307.) He was given a twenty-day supply and told
he must keep his next, January 2011 appointment. (Id.)
On November 18, Dr. Doyle completed a Missouri Department of Social Services
Medical Report Including Physician's Certification/Disability Evaluation on Plaintiff's behalf.
(Id. at 281-82.) He listed Plaintiff's complaints as panic disorder with agoraphobia, GAD,
and chronic back pain. (Id. at 281.) Plaintiff took hydrocodone for his break-through pain.
(Id. at 282.) Dr. Doyle opined that he was currently unable to function. (Id.)
X-rays taken of Plaintiff's lumbar spine at the end of November were normal. (Id. at
328.)
Plaintiff consulted Dr. Doyle on December 21 for his back pain. (Id. at 329-33.) He
was diagnosed with back pain and GAD, and prescribed Flexeril (a muscle relaxant),
hydrocodone-acetaminophen, and alprazolam (a generic form of Xanax). (Id. at 330.) He
was also given an intermusclar injection of Depo Medrol and Toradol. (Id. at 332-33.)
Plaintiff informed Dr. Kerr in January 2011 that he had not been getting out in public
but had been watching television. (Id. at 305.) He and his girlfriend had had family over to
their house for Christmas. (Id.) His appetite and sleep were okay, but his thought process
was paranoid, his thought content was worrisome, and his mood was occasionally more
- 12 -

irritable. (Id.) Also, he had fallen and was having back pain. (Id.) His diagnosis and
prescriptions were unchanged. (Id.) His GAF was 47. (Id.)
Plaintiff saw Dr. Doyle on February 1 for complaints of back, hip, and joint pain,
weakness, depression, anxiety, and fatigue. (Id. at 334-37.) He had a full range of motion
in all his joints and was described as generally "[d]oing well except for back pain flareup
worse with weather." (Id. at 336.) His diagnosis was unchanged; Reprexain (a combination
of hydrocodone and ibuprofen prescribed for the short-term relief of severe pain) was added
to his prescriptions. (Id.) Eight days later, Plaintiff telephoned Dr. Doyle to report that the
Reprexain was not working. (Id. at 338.) The dosage was increased. (Id.)
Plaintiff returned to Dr. Doyle on March 3 for back, hip, and joint pain and numbness
and weakness. (Id. at 340-44.) He was given an intermusclar injection of Decadron (a
corticosteroid), Depo Medrol, and Toradol; diagnosed with back pain, GAD, and
gastroesophageal reflux disease (GERD); and prescribed alprazolam for the GAD, Zantac for
the GERD, and hydrocodone-acetaminophen, Flexeril, and Reprexain for the back pain,. (Id.
at 341, 343.)
Plaintiff also saw Mr. Green on March 3, reporting that the medications were helping
him manage his anxiety and "difficulties with thinking." (Id. at 398.) Mr. Green described
him as "significantly improved." (Id.) Plaintiff was "considering returning for some
behavioral training to manage day to day activities and stresses" and was to set up an
appointment soon. (Id.)

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A lumbar spine x-ray taken the next week revealed mild disc bulge with small right
posterolateral disc protrusion at L5-S1 that encroaches on the right S1 nerve root. (Id. at 34647.)
On April 1, Plaintiff consulted Dr. Doyle for his back pain and refills of medication.
(Id. at 348-52.) The pain had recently flared up after Plaintiff lifted a washer at home and
radiated to his hips, legs, and feet. (Id. at 348.) It was aggravated by activity and alleviated
by inactivity and medication. (Id.) Plaintiff also complained of depression, anxiety, and
fatigue. (Id.) On a PHQ, he responded that he had five of the nine symptoms for more than
half the days, three for several days, and one (thinking he would be better off dead) not at all.
(Id. at 350-51.)

He was diagnosed with back pain, GAD, and panic disorder with

agoraphobia. (Id. at 351-52.) His prescriptions for Reprexain and Flexeril were renewed; his
prescription for hydrocodone-acetaminophen was stopped. (Id. at 351.)
Plaintiff was unable to keep his May 3 appointment with Dr. Kerr because he was sick,
but requested that a refill of his prescriptions be called into the pharmacy. (Id. at 302.)
Plaintiff saw Mr. Green for therapy on July 19. (Id. at 397.) His affect was flat; his
mood was anxious; his speech was slow and mildly slurred; his conversation was spontaneous
and purposeful. (Id.) His auditory hallucinations had significantly decreased but continued
to interfere with his daily life. (Id.) He was trying to stay busy. (Id.) Mr. Green noted that
Plaintiff was "returning to clinic service after being discharged related to urine drug screen."
(Id.) He was going to see Plaintiff every two weeks. (Id.)

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When next seeing Mr. Green, on August 3, Plaintiff reported increased depression and
decreased energy . (Id. at 396.) He complained of back pain and had a "gait suggestive of
discomfort." (Id.) He had rejected Dr. Kerr's recommendation he have weekly case
management services visits to his home because he did not want anyone coming to his house.
(Id.)
The same day, Plaintiff was given an intermuscular injection of Toradol by Dr. Doyle.
(Id. at 353-54.)
On August 12, Plaintiff complained to Dr. Doyle of chills, nausea, diarrhea, and
vomiting for the past two days. (Id. at 355-59.) He was diagnosed with dehydration and
gastroenteritis; given an intermuscular injection of Phenergan; and told to increase his intake
of fluids. (Id. at 355-59.)
When seen five days later by Mr. Green, Plaintiff was described as anxious and
worried. (Id. at 395.) At his August 31 session, Plaintiff's mood and affect were as before.
(Id. at 394.) Mr. Green noted that he was focused on his back pain. (Id.)
On September 6, Dr. Kerr completed a Mental Health Source Document – Depression
and/or Anxiety send him by Plaintiff's attorney. (Id. at 315.) Dr. Kerr marked that six of the
seven symptoms of depression and six of the seven symptoms of anxiety were present. (Id.
at 315.) He answered "yes" to questions whether Plaintiff felt overwhelmed by simple day
to day stressors and whether his condition was progressive and its symptoms expected to
worsen or occur more frequently. (Id.) He would likely be absent from work more than three
times a month and was severely limited in his ability to deal with work stress. (Id.) He did
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not maintain good attendance at therapeutic appointments. (Id.) His mental impairments
would be disabling regardless of any drug addiction or alcoholism and his physical or mental
limitations caused by his non-drug or alcohol-related impairments were not caused or
exacerbated by drug or alcohol use. (Id. at 316.)
Plaintiff was evaluated by Bertha Walker, M.A., and Tara Messmer, B.S., C.S.C., on
September 13 for participation in the Community Psychiatric Rehabilitation Program.5 (Id.
at 317-23.) He was reportedly on probation until 2013 for the marijuana possession charge.
(Id. at 317.) He had chronic back problems and seasonal allergies. (Id.) He lived with his
girlfriend and their teenage daughter. (Id. at 318.) He received food stamps. (Id.) His
girlfriend worked and paid all the bills. (Id.) He reported feeling safe in his house and
preferring not to leave it. (Id.) He showered daily, shaved, and washed his hair. (Id.) He
was appropriately dressed. (Id.) He did not use public transportation and relied on his family
for transportation. (Id.) His girlfriend did the shopping and the cooking. (Id. at 319.) He
could not sweep, mop, or vacuum because of his back. (Id.) He could do some work such
as dishes but could not stand for long periods of time. (Id.) He had no interest in going back
to work or in getting his GED. (Id.) He liked watching television and playing video games
with his daughter. (Id.) Since childhood, he had been anxious and heard voices. (Id. at 320.)
He had a history of alcohol and drug use. (Id.) His sleep and appetite were poor. (Id.) On
examination, his affect was flat; his eye contact was good; his thought processes were logical

5

Plaintiff was admitted to the program on October 13 and discharged on November 28 after
failing to show for any scheduled appointments. (Id. at 324.)
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and coherent; his intellectual functioning appeared to be a little below average; and his speech
seemed pushed. (Id.) He was cooperative, responsive, and oriented to time, place, and
person. (Id.) He did not have any auditory or visual hallucinations, but had heard voices in
the past. (Id.) He had mood swings and "some depression." (Id.) He wanted help with
learning how to deal with anxiety, depression, racing thoughts, and hearing voices. (Id. at
321.) His primary obstacle was his paranoia and anxiety preventing him from getting out into
the community and improving his skills. (Id. at 322.) He was to be seen by a caseworker
every week for at least a year and was to continue to see his psychiatrist. (Id.)
At his session the next day with Mr. Green, Plaintiff was described as having a flat
affect and speech, a calm and neutral mood, and an intact thought process. (Id. at 393.) He
was focused on his physical complaints. (Id.)
Two weeks later, Plaintiff was more able to engage in spontaneous conversation with
Mr. Green, including talking about a fishing trip. (Id. at 392.) He did not complain of pain
or of emotional stress. (Id.) Mr. Green described Plaintiff as "as stable" as he had seen him.
(Id.)
Plaintiff informed Mr. Green on October 18 that he had been doing fairly well until
the previous week when he had physical problems. (Id. at 391.)
In November, Plaintiff talked with Mr. Green about family coming for Thanksgiving.
(Id. at 390.) He did not appear to be in acute distress. (Id.) Plaintiff said he had arranged to
meet with his case manager at the office rather than the home because the latter was too

- 17 -

stressful. (Id.) Plaintiff was much the same at his December visit with Mr. Green. (Id. at
389.)
In January 2012, Plaintiff reported to Mr. Green that he had had a good holiday with
his family and was feeling and looking better. (Id. at 388.) His affect was flat; his mood
worrisome; his speech slow; his thought processes intact. (Id.)
Plaintiff saw Dr. Doyle on February 16 for back pain, anxiety, depression, and a refill
of his medications. (Id. at 360-64.) The pain had recently flared up after Plaintiff lifted a
washer at home and radiated to his hips, legs, and feet. (Id. at 360.) It was aggravated by
activity and alleviated by inactivity and medication. (Id.) Plaintiff also complained of
fatigue, weakness, malaise, joint pain, stiffness, arthritis, and an intolerance for cold. (Id. at
361.) On examination, he was weak in his lower legs and had a reduced range of motion in
his cervical and lumbosacral spines. (Id. at 362-63.) Straight leg raises6 were positive, as was
a Fabere maneuver.7 (Id. at 363.) On a PHQ, he responded that he had had one of the nine
symptoms (feeling bad about himself) nearly every day, six for more than half the days, one
for several days, and one (thinking he would be better off dead) not at all. (Id. at 364.) He
was diagnosed with back pain and depression and was prescribed Reprexain (a combination

6

"During a [straight leg raising] test a patient sits or lies on the examining table and the
examiner attempts to elicit, or reproduce, physical findings to verify the patient's reports of back pain
by raising the patient's legs when the knees are fully extended." Willcox v. Liberty Life Assur. Co.
of Boston, 552 F.3d 693, 697 (8th Cir. 2009) (internal quotations omitted).
7

A positive Fabere's sign indicates the presence of sacroiliac joint dysfunction in patients with
lower back pain. See Dorland's Illustrated Medical Dictionary, 1896 (32nd ed. 2012). The word
"Fabere" is derived from "the initial letters of the movements necessary to elicit [the sign]: flexion,
abduction, external rotation, extension." Id.
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of hydrocodone and ibuprofen prescribed for the short-term relief of severe pain) and
Flexeril. (Id. at 363, 364.)
Eight days later, Plaintiff was given an injection of Toradol by Dr. Doyle's nurse. (Id.
at 365.)
Plaintiff consulted a gastroenterologist, Dean Edwards, M.D., on March 12 about an
abnormal abdominal computed tomography (CT) scan. (Id. at 445-53.) On examination, he
had normal findings, including normal judgment and insight, and no evidence of depression,
anxiety, or agitation. (Id. at 447.) Dr. Edwards scheduled a colonoscopy, which revealed
ulcers and findings consistent with Crohn's disease. (Id. at 367-68, 440-45, 447.)
Two days later, Plaintiff discussed the recent diagnosis of Crohn's disease with Mr.
Green. (Id. at 387.)
On March 16, further tests revealed a small sliding hernia and other findings consistent
with Crohn's disease. (Id. at 369-70, 438-39.) Plaintiff was prescribed prednisone and was
to follow-up in one week. (Id. at 441.)
Plaintiff saw Dr. Doyle on March 19 for back pain, anxiety, depression, and a refill
of his medications. (Id. at 371-75.) On examination, he was weak in his lower legs and had
a reduced range of motion in his cervical and lumbosacral spines. (Id. at 373-74.) As before
straight leg raises and Fabere signs were positive. (Id. at 374.) On a PHQ, he responded that
he had had two of the nine symptoms for more than half the days, six for several days, and
one not at all. (Id. at 375.) He was diagnosed with lumbar back pain and GAD. (Id. at 374.)

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When seeing Dr. Edwards the next day, Plaintiff reported that he had had a marked
improvement in his abdominal/gastrointestinal symptoms since taking the prednisone. (Id.
at 430-37.) Plaintiff was continued on a tapering dose of prednisone. (Id. at 431.) Infliximab
therapy (a prescription medication used to reduce inflammation caused by Crohn's disease)
was to be initiated in the near future. (Id. at 434.)(Id.) (Id.)
Plaintiff told Mr. Green on April 11 that he had been more physically active, i.e., had
been mowing grass and taking walks, and had recently gone fishing. (Id. at 386.) His pain,
affect, speech, and mood were as before. (Id.)
Plaintiff underwent an endoscopy on April 30 after having problems for the past two
days and was found to have patchy erythema, a small hiatal hernia, and erosions/ulcerations.
(Id. at 377-78, 422-29.) Protonix, a proton pump inhibitor, was prescribed by Dr. Edwards.
(Id. at 378.)
The next week, Plaintiff reported to Mr. Green that he was decreasing his activities
away from home due to anxiety about his Crohn's disease symptoms. (Id. at 385.) He was
going to try to go to a restaurant that Sunday. (Id.)
Plaintiff returned to Dr. Edwards on May 17 for a follow-up visit. (Id. at 410-21.) He
reported not feeling well generally and complained of increased diarrhea and abdominal
cramping after stopping the prednisone. (Id. at 410.) His muscles ached; his calves cramped
at night; and his appetite was decreased. (Id.) He appeared anxious, but not distressed. (Id.
at 411.) Plaintiff was diagnosed with Crohn's disease of the small bowel with abdominal pain
and diarrhea; esophagitis; and acute gastritis. (Id. at 417, 419.) He was continued on his
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current medications, Humira and pantoprazole; also prescribed budesonide (a steroid used to
treat mild to moderate Crohn's disease) and Pylera; and was to have a complete metabolic
panel run. (Id. at 413, 421.)
Four days later, Plaintiff saw Dr. Doyle for back pain, anxiety and depression. (Id. at
379-84.) On examination, he had a normal, full range of motion in all joints and no clubbing,
cyanosis, or edema in his extremities. (Id. at 383.) He appeared to be in mild to moderate
pain and distress. (Id.) He had a depressed affect; his anxiety was stable on his medications.
(Id.) Plaintiff's responses on the PHQ indicated that he had four of the nine symptoms for
more than half the days; three for several days; and two not at all. (Id. at 382.) His diagnoses
were Crohn's disease, back pain, and GAD. (Id. at 384.) Budesonide and promethazine were
prescribed; daily exercise was recommended. (Id. at 381.)
When seen by Dr. Edwards on May 31, Plaintiff reported that he had had some
improvement in his abdominal pain and cramping and in his loose stools. (Id. at 399-409.)
An over-the-counter medication, omeprazole, was recommended and Imuran therapy was
initiated. (Id. at 399, 402.)
In July, Plaintiff reported to Dr. Kerr that he was living in the same house with the
same girlfriend as before and wanted to get married. (Id. at 457.) His mood was variable,
irritable, depressed, and anxious. (Id.) He was socially avoidant. (Id.) His sleep was
occasionally good; his appetite was decreased. (Id.) His speech was slow and halting; his
insight and judgment were poor. (Id.) He had been having crying spells and had recently

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heard voices. (Id.) Dr. Kerr discontinued the Xanax and renewed the Valium, Risperdal, and
Seroquel prescriptions. (Id.)
The same day, Dr. Kerr wrote that Plaintiff's condition remained the same and his
responses on the Mental Health Source Document, see pages 15 to 16, supra, were
unchanged. (Id. at 454-56.)
Also before the ALJ was a Psychiatric Review Technique form completed in
December 2010 by a none-examining consultant, Stephen Scher, Ph.D. (Id. at 284-95.) Dr.
Scher assessed Plaintiff for the period from January 31, 1999, to the present. (Id. at 284.)
He determined that Plaintiff had a psychotic disorder (schizoaffective disorder, mixed), an
affective disorder (history of depression), an anxiety-related disorder (history of anxiety), and
a substance addiction disorder (cannabis abuse, early full remission). (Id. at 284, 286, 287,
288, 290.) These disorders resulted in marked restrictions in activities of daily living, in
maintaining social functioning, and in maintaining concentration, persistence, or pace. (Id.
at 292.) They did not cause any episodes of decompensation of extended duration. (Id.) Dr.
Scher noted that he had reviewed Plaintiff's school records and 2010 medical records of July
7, August 4, August 17, September 2, and September 19. (Id. at 294.) Addressing Plaintiff's
SSI application, Dr. Scher characterized Plaintiff as reporting a lifelong condition with
limited treatment. (Id.)
On a Mental Residual Functional Capacity Assessment form, Dr. Scher assessed
Plaintiff as being moderately limited in one of the three abilities in the area of understanding
and memory, i.e., understanding and remembering detailed instructions, and not significantly
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limited in two. (Id. at 296.) In the area of sustained concentration and persistence, he was
moderately limited in two of the eight listed abilities, i.e., (i) carrying out detailed instructions
and (ii) working in coordination with or proximity to others without being distracted by them,
and was not significantly limited in the other six abilities. (Id. at 296-97.) In the area of
social interaction, Plaintiff was moderately limited in three of the abilities – interacting
appropriately with the general public; accepting instructions and responding appropriately to
criticism from supervisors; and getting along with coworkers or peers without distracting
them or exhibiting behavioral extremes – and not significantly limited in the remaining two.
(Id. at 297.) In the area of adaptation, he was moderately limited in his ability to travel in
unfamiliar places or use public transportation and was not significantly limited in the other
three listed abilities. (Id.)
The ALJ's Decision
The ALJ first found that Plaintiff met the insured status requirements of the Act
through September 30, 2002, and has not engaged in substantial gainful activity since his
alleged onset date of January 31, 1999. (Id. at 16.) He has severe impairments of
degenerative disc disease, depression, schizoaffective disorder, anxiety, panic with
agoraphobia, and borderline intellectual functioning. (Id.) His Crohn's disease was severe,
but had not lasted at least twelve months and was not expected to persist for twelve
continuous months. (Id. at 17.) Plaintiff did not have an impairment or combination of
impairments that met or medically equaled one of listing-level severity. (Id.) His severe
mental impairments resulted in mild restrictions in activities of daily living, moderate
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difficulties in social functioning, moderate difficulties in concentration, and no limitations
in persistence or pace. (Id. at 17-18.) He had not had any episodes of decompensation of
extended duration. (Id. at 18.) When assessing Plaintiff's activities of daily living and social
functioning, the ALJ noted that Plaintiff has been living with his girlfriend for twenty years
and gets along with her. (Id. at 17.) He goes to the store, although not alone, and "has some
friends." (Id.)
The ALJ further found that Plaintiff has the residual functional capacity (RFC) to
perform light work with limitations of lifting or carrying no more than twenty pounds
occasionally and ten pounds frequently; standing, walking, or sitting for a total of six hours
in an eight-hour workday; and occasionally balancing, kneeling, crouching, crawling,
stooping, and climbing ramps and stairs. (Id. at 18.) Plaintiff can do simple routine tasks that
can be performed independently and that involve working primarily with things, not people,
and in non-public settings. (Id. at 18-19.) He cannot climb ladders, ropes, or scaffolds. (Id.
at 18.) He should have no more than superficial social interaction with other people. (Id. at
19.)
When evaluating Plaintiff's RFC, the ALJ assessed his credibility and found it wanting
on the grounds that (a) his activities of daily living were inconsistent with his allegations and
(b) there was no objective medical evidence supporting the severity of his allegations,
including no diagnostic testing, no treatment of his back pain by a specialist, and only
sporadic treatment of his psychiatric treatment. (Id. at 20-22.)

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Addressing Dr. Doyle's November 2010 statement, the ALJ discounted it as being
done by a physician "after a one-time examination for the purpose of a Medicaid application"
when employing a definition of disability different than the Act's statutory and regulatory
definition. (Id. at 22.)
Next, the ALJ noted the medical source statement completed by Dr. Kerr, but declined
to give it full weight. (Id.) The ALJ noted that Plaintiff stopped going to Dr. Kerr after the
September 2011 statement until July 2012, that the finding of a borderline IQ was not
consistent with Plaintiff having obtained a driver's license, and that the statement was not
consistent with Plaintiff taking walks, mowing grass, and going fishing. (Id.) Nor was the
GAF of 49 consistent with Plaintiff living with the same girlfriend for twenty years. (Id.)
Additionally, there were often no positive mental signs in Plaintiff's records. (Id. at 23.)
Addressing Plaintiff's daily activities, the ALJ noted that he helped someone move in August
2001 and that Plaintiff reported in July 2010 that he was doing odd jobs and mowing yards,
in August 2010 that he was mowing lawns, in February 2012 that he lifted a washing machine
at home, and in April 2012 that he had been mowing grass, taking walks, and fishing. (Id.
at 23-24.) In May 2012, he was going to a restaurant. (Id. at 24.) In July 2012, he reported
that he wanted to get married. (Id.) Also, Plaintiff's work history was not consistent,7 he was
not motivated to work before the alleged onset date, and there was no apparent reason why
the alleged onset date was January 31, 1999. (Id. at 20.) The ALJ discounted the report of
7

Plaintiff had earnings from 1990 to 1993, 1995 to 1999, and in 2002, 2005, and 2006. (Id.
at 154.) His earnings in 1998 were $1,944, in 1999 were $954, in 2002 were $29, in 2005 were $998,
and in 2006 were $ 686. (Id.)
- 25 -

Plaintiff's girlfriend because it was not supported by the medical evidence, she was not
medically trained, and she was not a disinterested third party. (Id. at 24.)
With his RFC, Plaintiff was not able to perform any past relevant work. (Id. at 24-25.)
With his RFC, age, and limited education, there are jobs Plaintiff can perform in the national
economy. (Id. at 25-26.)
The ALJ concluded that Plaintiff is not disabled within the meaning of the Act. (Id.
at 28.)
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. §§ 423(d)(1), 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. §§ 423(d)(2)(A), 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
- 26 -

Cir. 2013) (quoting Cuthrell v. Astrue, 702 F.3d 1114, 1116 (8th Cir. 2013) (citing 20 C.F.R.
§§ 404.1520(a) and § 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. §§ 404.1520(b), 416.920(b); Hurd, 621 F.3d at 738. Second, the claimant must
have a severe impairment. See 20 C.F.R. §§ 404.1520(c), 416.920(c). A"severe impairment"
is "any impairment or combination of impairments 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. §§ 404.1520(d), 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). "[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)).
- 27 -

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, 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.
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. §§ 404.1520(e), 416.920(e). The burden at step
four remains with the claimant to prove his RFC. Moore, 572 F.3d at 523; accord Dukes v.

- 28 -

Barnhart, 436 F.3d 923, 928 (8th Cir. 2006); Vandenboom v. Barnhart, 421 F.3d 745, 750
(8th Cir. 2005).
If, as in the instant case, 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. §§ 404.1520(f),
416.920(f). The Commissioner may meet her 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
- 29 -

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, 623 F.3d at 602; 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.
Discussion
Plaintiff argues that the ALJ improperly weighed the opinions of Drs. Scher, Kerr, and
Doyle, giving too much weight to the first and too little to the second and third. The
Commissioner disagrees.
The Title II Application. Plaintiff applied for DIB and SSI in August 2010, alleged
a disability onset date of January 31, 1999, and was insured only through September 2002.
The medical records reflect treatment beginning in August 1999, sought again in August
2001, September 2001, October 2001, and January 2002, and then not sought until May 2010.
Given this gap between the relevant dates and treatment for the DIB application and those for
the SSI application, the Court will consider the two separately.
Plaintiff earned $954 in 1999, working for two employers. (R. at 152.) He earned
nothing in 2000 and 2001 and only $29 in 2002. (Id. at 154.) His medical records begin eight
months after his alleged disability onset date and were for emergency treatment of a condition
– back pain – that he described as having begun two days earlier. He saw a physician, Dr.
Doyle, the following week for the pain, was prescribed pain medication, and was told to
- 30 -

return in three days if there was no improvement. He returned two years later, in August
2001. As he had in August 1999, the conditions for which he sought treatment – nerves and
back pain – he described as having been present for two days. He sought treatment once in
September 2001 and again in October 2001, reporting great improvement. He returned to Dr.
Doyle in January 2002, was treated and prescribed an antidepressant, and was to return in
seven days. Plaintiff did not return for more than eight years.
As noted above, a claimant has the burden of establishing he 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. §§ 423(d)(1). Plaintiff has failed to carry this burden on his DIB
application. The ALJ did not err in denying it.
The SSI Application. The time restrictions governing consideration of Plaintiff's DIB
application are not relevant to the consideration of his SSI application. For the reasons set
forth below, the Commissioner's decision on that application is reversed and the case shall be
remanded.
The ALJ determined that Plaintiff has severe mental impairments of depression,
schizoaffective disorder, anxiety, and panic with agoraphobia.8 The ALJ also found that
Plaintiff's severe mental impairments, together with his degenerative disc disease and
8

"Agoraphobic fears typically involve characteristic clusters of situations that include being
outside the home alone; being in a crowed or standing in a line; being on a bridge; and traveling in
a bus, train, or automobile." DSM-IV at 433. Plaintiff clearly has such fears. He does not use public
transportation and his girlfriend often goes to the doctor with him. The only other place he goes is
to the pharmacy.
- 31 -

borderline intellectual functioning, resulted in only mild restrictions in his activities of daily
living, citing activities by Plaintiff in August 2001, July 2010, August 2010, February 2012,
April 2012, and May 2012. The regulations define activities of daily living as "includ[ing]
adaptive activities such as cleaning, shopping, cooking, taking public transportation, paying
bills, maintaining a residence, caring appropriately for [one's] grooming and hygiene, using
telephones and directories, and using a post office." 20 C.F.R. Pt. 404, Subpt. P. App'x 1,
§ 12.00(C)(1). The quality of these activities is to be assessed "by their independence,
appropriateness, effectiveness, and sustainability." Id. (emphasis added). A claimant may
be found to have marked limitations in his or her activities of daily living if the claimant has
"serious difficulty performing them . . . on a consistent, useful, routine basis . . . " Id.
Other than caring for his personal grooming, there is no evidence in the record that
Plaintiff effectively did any daily activity on a routine, sustained basis. The household chores
he does, e.g., cooking, vacuuming, and washing dishes, and yard work, mowing his lawn, are
not done consistently. Consistent with his panic disorder with agoraphobia, see note 8, supra,
he does not use public transportation, is often accompanied by his girlfriend when he goes to
the doctor or to his therapist, and does not go shopping. As noted by the ALJ, in August 2001
he helped someone move. One month shy of ten years later, he reportedly did odd jobs and
mowed yards. The next month, he told Dr. Kerr he occasionally mowed neighborhood lawns.
Eighteen months later, in February 2012, Plaintiff sought treatment for a flare-up of back pain
caused by lifting a washer at home. In April 2012, he told Mr. Green he had been more
physically active – he had been mowing grass, taking walks, and, recently, fishing. All are
- 32 -

solitary pursuits and none are further defined by how long and how often. In May 2012,
Plaintiff planned to go to a restaurant – the first social event outside the house referred to in
the record. In August 2012, he testified that he did not mow lawns for other people and, when
asked if he had any friends, first said he did not, then said "Maybe a couple." (R. at 49, 51.)
He was not asked if he ever did any activities with friends, whether at home or not.
The ALJ's citation to isolated activities, none of which appear to be done on a routine,
sustained basis other than personal grooming, does not support his conclusion that Plaintiff
has only mild restrictions in his activities of daily living. Cf. Bernard v. Colvin, 774 F.3d
482, 489 (8th Cir. 2014) (affirming ALJ's finding that claimant had only mild restrictions in
his activities of daily living based on evidence that he "could perform a number of activities
of daily living on a sustained useful routine basis," including mowing the lawn, preparing
meals, watching television, grocery shopping, using public transportation, and performing
maintenance work at apartment building) (emphasis added); Brown v. Astrue, 611 F.3d 941,
955-56 (8th Cir. 2010) (affirming ALJ's finding that claimant with anxiety disorder had only
mild restrictions in her activities of daily living when record established that she got her
daughter off to school, cleaned, occasionally cooked, went to workout at least a couple of
times a week, was involved in her daughter's school activities, visited her mother, went to
church almost every Sunday, and occasionally attended Bible class). The case shall be
remanded for reconsideration of the degree of restriction Plaintiff has in his activities of daily

- 33 -

living.9 And, because the ALJ declined to give Dr. Kerr's September 2011 statement full
weight, in part, because he found it inconsistent with Plaintiff's daily activities, the case shall
be remanded for reconsideration of that statement, if necessary, after the ALJ reevaluates
Plaintiff's activities.
Also, Plaintiff argues that greater weigh1t should have been given the opinion of Dr.
Doyle.
The ALJ failed to recognize that the November 2010 statement was that of Dr. Doyle,
Plaintiff's treating physician, and was not given after a one-time examination. Nevertheless,
the ALJ did not err in discounting Dr. Doyle's opinion that Plaintiff was currently unable to
function. The opinion was conclusory, see McDade v. Astrue, 720 F.3d 994, 999-1000 (8th
Cir. 2013) (affirming ALJ's decision to discount treating physician's conclusory, unexplained
opinion), and did not clearly employ the definition of disability used by the Act and its
regulations, id. at 1000. It was also inconsistent with the objective medical evidence, e.g.,
normal lumbar spine x-rays taken the same month. See Cline v. Colvin, 771 F.3d 1098, 1103
(8th Cir. 2014) (opinion of treating physician may be discounted when inconsistent with
objective medical evidence). Plaintiff's challenge to the ALJ's assessment of the November
2010 statement is unavailing.

9

In support of the ALJ's assessment of Plaintiff's daily activities, the Commissioner
additionally cites his newspaper reading and television watching. When asked at the hearing if he
reads or watches television, Plaintiff replied, "I read – look at newspapers and stuff sometimes." (R.
at 41.) These solitary, occasional pursuits do not reflect routine, sustained activities.
- 34 -

Conclusion
For the reasons set forth above, the ALJ's decision denying Plaintiff's DIB application
is supported by substantial evidence on the record as a whole. His decision denying Plaintiff's
SSI application is reversed and remanded for further consideration of the degree of limitation
Plaintiff has in his activities of daily living. Although the Court is aware that the ALJ's
decision may not change after properly considering those activities, the determination is
nevertheless one that the Commissioner must make in the first instance. Accordingly,
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 24th day of June, 2015.

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