Dudley v. Colvin
MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that the decision of the Commissioner be REVERSED. A separate Judgment in accordance with this Memorandum and Order is entered this same date.. Signed by Magistrate Judge John M. Bodenhausen on 9/21/16. (MRS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
MICHELLE KAYE DUDLEY,
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
No. 1:15 CV 151 JMB
MEMORANDUM AND ORDER
This cause is on appeal from an adverse ruling of the Social Security Administration. This
suit involves an Application for Supplemental Security Income. The matter is fully briefed, and for
the reasons discussed below, the Commissioner’s decision is reversed. All matters are pending
before the undersigned United States Magistrate Judge with consent of the parties, pursuant to 28
U.S.C. § 636(c).
On September 18, 2012, Plaintiff Michelle Kaye Dudley (“Plaintiff”) filed an Application
for Supplemental Security Income (“SSI”) payments pursuant to Title XVI of the Social Security
Act, 42 U.S.C. §§ 1381, et seq. (Tr. 122-30)1 Plaintiff claimed that her disability began on
December 30, 2010, as a result of anxiety, depression, and lower back problems. On initial
consideration, the Social Security Administration denied Plaintiff’s claim for benefits. Plaintiff
"Tr." refers to the page of the administrative record filed by the Defendant with her Answer
(ECF No. 12/filed November 2, 2015).
requested a hearing before an Administrative Law Judge (“ALJ”), which was held on February
25, 2014. (Tr. 25-55) Plaintiff testified and was represented by counsel. Vocational Expert
Alissa Smith also testified at the hearing. (Tr. 50-53, 107-08) Thereafter, on March 19, 2014,
the ALJ issued a decision denying Plaintiff’s claim for benefits. (Tr. 8-20) After considering the
representative’s brief, the Appeals Council found no basis for changing the ALJ’s decision and
denied Plaintiff’s request for review on June 30, 2015. (Tr. 1-5, 253-54)
Plaintiff filed the instant action on August 26, 2015. Plaintiff has exhausted her
administrative remedies and the matter is properly before this Court. Plaintiff has been
represented by counsel throughout all relevant proceedings.
In her initial brief to this Court, Plaintiff raises two issues. First, Plaintiff argues that the
ALJ erred in weighing treating physician Dr. Courtney Johnson’s opinions as it is unclear what
weight the ALJ assigned, and he failed to give good reasons for the weight given to Dr. Johnson’s
opinions. Next, Plaintiff argues that the ALJ’s Residual Functional Capacity (“RFC) is not
supported by substantial weight. The Commissioner filed a detailed brief in opposition. In her
reply brief, Plaintiff again argues that the ALJ failed to indicate what weight was given to Dr.
Johnson’s opinion and to give good reasons for doing so; and the RFC is not supported by
As explained below, the Court has considered the entire record in this matter. Because
the decision of the Commissioner is not supported by substantial evidence, it will be reversed.
The undersigned will first summarize the decision of the ALJ and the administrative record. Next,
the undersigned will address the issue regarding the ALJ’s failure to accord weight to Dr.
Johnson’s opinions and to articulate specific reasons in weighing Dr. Johnson’s opinions.
Because this matter is being remanded, the undersigned will not address Plaintiff’s other
contentions regarding her RFC.
Decision of the ALJ
On March 19, 2014, the ALJ issued an adverse decision denying Plaintiff’s request for SSI
benefits. The ALJ acknowledged that the administrative framework required him to follow a fivestep, sequential process in evaluating Plaintiff’s claims. (Tr. 11-12) At step one, the ALJ
concluded that Plaintiff had not engaged in any substantial gainful activity since September 18,
2012. (Tr. 13) At step two, the ALJ found Plaintiff had the severe impairments of “degenerative
disc disease of the lumbar spine, medullary sponge kidney with nephrolithiasis, depression,
personality disorder, and anxiety disorder/posttraumatic stress disorder.” (Tr. 13) After
considering all of Plaintiff’s impairments, severe and non-severe, the ALJ concluded, however,
that none of Plaintiff’s impairments, either singly or in combination, significantly limited her ability
to perform basic work-related activities for 12 consecutive months. (Tr. 13-14)
The ALJ articulated the following RFC for Plaintiff:
[T]he claimant has the residual functional capacity to lift 10 pounds occasionally
and 10 pounds frequently.2 She can walk or stand for two hours and sit for six
hours out of an eight [hour] workday. She may occasionally climb stairs, but
should never climb ropes, scaffolds or ladders. She can frequently balance and
occasionally stoop, crouch, kneel or crawl. She is limited to occasional pushing
and pulling with the lower extremities. She should avoid unprotected heights and
hazardous moving machinery. In addition, she is limited to simple, routine,
repetitive tasks. She may work in proximity to others, but is limited to jobs that do
not require close cooperation and interaction with coworkers, in that, she would
work better in relative isolation. She should have no interaction with the general
public. She retains the ability to maintain attention and concentration for minimum
two-hour period at a time, to adapt to changes in the workplace on a basic level
and to accept supervision on a basic level.
The undersigned finds that it is not clear what lifting capacity the ALJ assigned to Plaintiff.
The ALJ also made an adverse credibility finding that no doubt influenced his RFC
assessment. The ALJ concluded that Plaintiff’s “statements concerning the intensity, persistence
and limiting effects of these symptoms are only partially credible for the reasons explained in this
decision.” (Tr. 16) The ALJ found that Plaintiff’s “allegations of debilitating back pain are not
supported by the objective evidence.” (Tr. 16) Likewise, the ALJ found that the medical
evidence of record does not fully support Plaintiff’s allegations of psychiatric symptoms, and her
statements regarding mental impairments are only partially credible. (Tr. 17)
The ALJ summarized his conclusions regarding weight given to the medical sources’
opinions as follows:
[T]he undersigned gives significant weight to the opinions of the State agency
psychological consultant.3 As a State agency consultant, this doctor is familiar with
the disability determination process and the Regulations, including the terms of art and
legal and medical standards set forth therein. More significantly, the State agency
consultant’s opinions are consistent with the medical evidence of record, which shows
preserved memory, attention and concentration functions, and with her activities of
daily living, which show the capacity for limited social interaction.
The undersigned has considered the medical source statement from the [Plaintiff’s]
psychiatrist, Courtney Johnson, M.D. However, while the medical evidence of
record does demonstrate some degree of psychological impairment, it does support
the degree of limitation opined by Dr. Johnson. Mental status examinations have
consistently revealed normal attention, concentration and memory. Although Dr.
Johnson’s treatment notes document subjective reports of anxiety and irritability,
these allegations are not totally consistent with the [Plaintiff’s] activities of daily
living. As noted, she goes shopping, she can go out alone, and she goes to the library.
This shows that the [Plaintiff] is capable of at least limited social interaction.
Likewise, the undersigned gives little weight to the opinions of Charlie Harrison, MS,
LPC. The medical evidence of record, as just described, does not support marked and
The ALJ did not use Dr. Cottone’s name in discussing his opinion, but based on the exhibit cited,
the undersigned finds the ALJ was discussing Dr. Cottone’s opinions.
(Tr. 18) (internal citations omitted) The ALJ found that Plaintiff has no past relevant work. (Tr.
19) The ALJ further found that, considering Plaintiff’s age, education, work experience, and
RFC, there were jobs existing in significant numbers in the national economy she could perform,
including a document preparer, a pharmaceutical processor, and a printed circuit board screener.
Evidence Before the ALJ
The administrative record in this matter includes the hearing transcript, medical records,
and forms completed by Plaintiff and state agency physicians. Although the Court has carefully
considered all of the evidence in the administrative record in determining whether the
Commissioner’s adverse decision is supported by substantial evidence, only the records most
relevant to the ALJ’s decision and the issues raised by Plaintiff on this appeal are discussed. The
following is a summary of pertinent portions of the record.
The Hearing Before the ALJ
The ALJ conducted a hearing on October 24, 2013. Plaintiff was present and represented
by an attorney. Also present was a Vocational Expert (“VE”), Alissa Smith.
1. Plaintiff’s Testimony
Plaintiff testified primarily in response to questions posed by her attorney, with additional
questions interjected by the ALJ. At the time of her hearing, Plaintiff was thirty-five years old.
(Tr. 31) Plaintiff testified that she received her GED in 2006. (Id.) Plaintiff is divorced and lives
with her disabled, fifty-eight year old father. Plaintiff’s father drove her to the hearing even
though she has a driver’s license. Plaintiff has four children, ages 15, 11, 7, and 5, but she does
not have custody of any her children. (Tr. 32)
Plaintiff testified that her lower back pain and tension in her shoulders prevent her from
working. (Tr. 33) As treatment for her back, Plaintiff has received steroid shots, prescribed
medications, and an EKG. (Tr. 36) Although Dr. Vaught reportedly recommended surgery,
Plaintiff explained that she could not afford the treatment due to lack of medical coverage, and
she wanted to consider other options. (Tr. 37) On November 21, 2013, Dr. Sandvoe prescribed
a muscle relaxer, and Plaintiff thought that helped. On November 19, 2013, Plaintiff received
Medicaid. (Id.) Plaintiff testified that Dr. Lambrou at Chaffee Medical Clinic treated her monthly
and prescribed pain medications and administered a steroid shot. (Tr. 40) Plaintiff also has
chronic kidney disease that results in kidney stone issues if she does not manage her diet
appropriately. (Tr. 43)
Plaintiff testified that Dr. Courtney Johnson treats her mental health issues which include
anxiety, depression, and PTSD. (Tr. 45) Plaintiff reported a history of physical, sexual, and
mental assaults. (Tr. 46) Plaintiff testified that she avoids public places because of her panic
attacks. Plaintiff takes Cymbalta, Hydrocodone, and Xanax. (Id.) Plaintiff noted that the
Hydrocodone and Xanax medications have helped her tremendously but she is uncertain as to the
Cymbalta since she just started taking that medication. (Tr. 47) Plaintiff reported no negative
side effects from her medications.
Plaintiff can lift five pounds; can stand for at most fifteen minutes; and can sit on average
for fifteen minutes. (Tr. 34) Plaintiff testified that she had used a push walker with a seat for
ambulation, but she stopped using the walker after receiving treatment for her pinched sciatic
nerve. (Tr. 42)
Plaintiff spends much of the day, up to two to three hours, lying on her stomach. (Tr. 35)
She also spends time reading, catching up on junk mail, and making entries in her journal. (Id.)
Plaintiff does most of the household chores including the cooking, laundry, mopping, and
vacuuming. (Tr. 49) Plaintiff cuts the grass using a riding lawn mower. (Id.)
2. Testimony of Vocational Expert Alissa Smith
Vocational Expert Alissa Smith (“VE”) testified at the hearing. The ALJ asked the VE to
assume Plaintiff has no past relevant work. (Tr. 51)
The ALJ asked the VE to assume someone similar to Plaintiff in age, education, and the
same past work history who
retains the capacity to occasionally lift 10 pounds, frequently 10 pounds, walk or
stand two hours out of an eight hour day, sit for six hours out of an eight hour day.
She can occasionally climb stairs. She should never climb ropes, scaffolds or ladders.
She can frequently balance but occasionally stoop, crouch, kneel and crawl. She’s
limited to occasional pushing and pulling with the lower extremities. She should
avoid unprotected heights and hazardous moving machinery. She’s limited to jobs
that consist of simple, routine, repetitive type tasks. She may work in proximity to
others but is limited to jobs that consist that do not require close cooperation,
interaction with co-workers. She would work better in relative isolation. She should
have no interation and cooperation with the general public. Assume she retains the
ability to maintain attention and concentration for a minimal two hour periods at a
time, adapt to changes in the work place on a basic level, accept supervision on a
basic level. Can you identify jobs in the local, national and regional economy this
hypothetical person could perform?
(Tr. 52) The VE explained that the example jobs are sedentary, and such individual could
perform jobs existing in significant numbers including a document preparer, a pharmaceutical
processor, and a printed circuit board screener. (Id,)
The ALJ’s second hypothetical added the following mental limitation: “due to
psychologically based symptoms she’d be unable to interact and cooperate with co-workers,
unable to interact and cooperate with the general public, she’d be unable to accept supervision
and unable to maintain acceptable levels of punctuality and attendance.” (Tr. 52) The VE opined
that such individual would be unemployable.
Plaintiff’s counsel then asked if the hypothetical individual could “lift less than five
pounds, stand less than one hour total, sit less than one hour total, occasionally reach, handle,
finger, feel and needs to lie down once per day for 30 minutes[,] would that individual be able to
work at all?” (Tr. 53) The VE opined that such individual would also be unemployable.
Forms Completed by Plaintiff
In a Disability Report - Adult form, Plaintiff indicated that she stopped working on
December 29, 2010, after being laid off and then fired. (Tr. 165) In a Function Report - Adult
form completed on September 28, 2012, Plaintiff reported going grocery shopping weekly and
doing the laundry. (Tr. 197-98) Plaintiff indicated that she does not like public places and has
problems getting along with others. Plaintiff reported using a computer to look for employment.
Medical Records and Source Opinion Evidence
The medical evidence in the record shows that Plaintiff has a history of degenerative disc
disease of the lumbar spine, medullary sponge kidney/kidney stones, depression, personality
disorder, and anxiety disorder/post-traumatic stress disorder (“PTSD”). (Tr. 268-553) The
relevant medical evidence will be discussed in additional detail below, as part of the Court’s
analysis of the arguments raised by Plaintiff herein.
Community Counseling Center - Dr. Courtney Johnson, Caitlyn
Quinn, and Daniela Kantcheva (Tr. 302-16, 398-446, 509-10)
Between August 31, 2012, and December 19, 2013, Plaintiff received psychiatric care for
her depressive symptoms at Community Counseling Center.
On August 31, 2012, Caitlyn Quinn, M.A., PLPC, completed an Intake Note/Psychiatric
History. Plaintiff reported an increase in the severity of her depressive symptoms due to financial
problems and feelings of loneliness. Plaintiff noted that she was not taking any medications. Ms.
Quinn found Plaintiff to be alert, responsive and cooperative during the interview process.
Plaintiff indicated that she had a loss of energy and diminished ability to concentrate. Her main
stressors were problems with her social environment, economic problems, and occupational
problems. Ms. Quinn diagnosed Plaintiff with major depressive disorder and PTSD, and
scheduled Plaintiff for a psychiatric evaluation to determine medication needs.
During Medical Psychotherapy on September 9, 2012, Plaintiff complained of feeling
extremely stressed out. Plaintiff reported being unemployed for two years, receiving
unemployment benefits during that time, and looking for a job but being unable to find one.
Daniela Kantcheva, APRN, noted Plaintiff to be alert and oriented to self, place, time and
situation. Ms. Kantcheva listed major depression, methamphetamine abuse, cannabis abuse,
alcohol abuse, severe occupational problems, severe economic problems, and moderate problems
with social environment in her diagnostic impression. Ms. Kantcheva prescribed Remeron for
depression and Vistaril for anxiety. After starting the medications, Plaintiff broke out in a rash so
she discontinued the medications as indicated in a phone call record.
In follow-up treatment on September 14, 2012, Plaintiff reported the rash disappeared
once she discontinued the medications. Ms. Kantcheva prescribed Elavil. On September 28,
2012, Plaintiff’s mood and affect were anxious/tearful, and Plaintiff was alert and oriented to time,
place, and person. Ms. Kantcheva prescribed Trazodone and scheduled an appointment with Dr.
Dr. Johnson completed a psychiatric evaluation on October 9, 2012, and prescribed
Vistaril to help alleviate Plaintiff’s stress. Dr. Johnson diagnosed Plaintiff with major depressive
disorder, recurrent/moderate personality disorder not otherwise specified and noted that Plaintiff
had severe problems with coping skills. In all of her treatment notes, Dr. Johnson noted that
Plaintiff was on time for the scheduled appointment for medication management and therapy.
In follow-up treatment on October 29, 2012, Plaintiff expressed interest in starting a trial
of Valium to alleviate her anxiety problems. Dr. Johnson noted that a trial of benzodiasepine
would be “contraindicated in this patient with a history of polysubstance dependence due to a risk
of abuse.” (Tr. 443) Dr. Johnson added Wellbutrin and continued Vistaril as part of Plaintiff’s
medication regimen. Dr. Johnson encouraged Plaintiff to stop smoking.
In follow-up on November 8, 2012, Plaintiff reported feeling more on edge, being
involved in recreational activities, and smoking more. Dr. Johnson noted that Plaintiff had a
reported history of poorly tolerating Celexa, Zoloft, Elavil, Effexor, and Trazodone. Dr. Johnson
continued Wellbutrin XL in the same dosage and added Viibryd. Plaintiff returned on November
13, 2012, for medication management and completion of disability paper work. Dr. Johnson
noted Plaintiff’s memory and concentration were intact based on their conversation. Plaintiff
reported being insecure around other people.
On December 7, 2012, Plaintiff reported continued problems being around people and in
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public, and difficulty coping with a past abusive relationship. Dr. Johnson noted Plaintiff’s
memory and concentration were intact. Dr. Johnson adjusted Plaintiff’s medication regimen by
tapering and then discontinuing Vistaril and starting Doxepin. In follow-up on December 18,
2012, Plaintiff admitted not starting the trial of Doxepin yet. During treatment on January 10,
2013, Dr. Johnson adjusted Plaintiff’s medication regimen by increasing the dosage of Wellbutrin
XL and Doxepin. Plaintiff reported being more irritable.
On February 27, 2013, Plaintiff reported irritability caused by interpersonal problems with
family members and problems coping. Dr. Johnson increased Plaintiff’s dosage of Wellbutrin,
discontinued Doxepin, and prescribed Abilify. Plaintiff reported that she stopped taking Abilify
after four days because of vague somatic complaints. Dr. Johnson noted Plaintiff’s memory and
concentration were intact based on their conversation. On April 4, 2013, Dr. Johnson adjusted
Plaintiff’s medication regimen by discontinuing Abilify and prescribing Doxepin.
In follow-up treatment on June 4, 2013, Plaintiff reported her interests include shopping
and spending time with her friend. Dr. Johnson increased her Doxepin dosage. On June 18,
2013, Plaintiff reported recently having filed for an order of protection against her mother after
her mother became physically and verbally aggressive. Plaintiff complained of her mood still
being irritable. Dr. Johnson continued Plaintiff’s medication regimen.
In follow-up treatment on July 9, 2013, Dr. Johnson noted Plaintiff’s memory and
concentration were intact. Plaintiff reported that her mood was mostly irritable Dr. Johnson
adjusted Plaintiff’s medication regimen by starting a trial of Gabapentin at bedtime. In follow-up
on July 23, 2013, Plaintiff reported adverse effects after starting Gabapentin. Dr. Johnson
adjusted Plaintiff’s medication regimen.
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Plaintiff returned on August 15 and 19, 2013, complaining of increased pain on
Gabapentin and her mood was mostly irritable. Dr. Johnson noted Plaintiff was cooperative, and
her memory and concentration were intact. Dr. Johnson adjusted Plaintiff’s medication regimen.
Although Dr. Johnson wanted Plaintiff to start a trial of Cymbalta, she never started the trial.
When Plaintiff returned on September 9, 2013, she reported having been off all
medications since August 17, 2013, and smoking ten cigarettes a day. Dr. Johnson noted Plaintiff
was cooperative and her memory and concentration were intact. Plaintiff reported her mood was
mostly aggravated. Dr. Johnson restarted a trial of Doxepin. On October 8, 2013, Plaintiff
questioned whether the dosage of Doxepin was enough. Dr. Johnson increased Plaintiff’s dosage
On November 19. 2013, Plaintiff reported being agitated by her father questioning her
about not having a job. Dr. Johnson noted Plaintiff’s memory and concentration were intact, and
Plaintiff had severe family, housing, and occupational problems. Although Dr. Johnson discussed
prescribing other medications, Plaintiff would only consent to an increased dosage of Doxepin. In
follow-up on December 19, 2013, Plaintiff reported that she discontinued taking Doxepin after
Dr. Lambrou prescribed a medication regimen of Flexeril, Valium, Norco, and Doxcycline.
Plaintiff reported continued irritable mood and difficulty coping with interpersonal problems. Dr.
Johnson noted Plaintiff’s memory and concentration were intact. Dr. Johnson discontinued
Doxepin due to noncompliance and prescribed Lamotrigine.
On January 22, 2014, Plaintiff reported her mood was mostly irritable. Dr. Johnson noted
that Plaintiff continued to have chronic irritable mood and problems tolerating Lamictal and
started a new trial of Prozac.
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Dr. Johnson completed a two page “Medical Source Statement - Mental” (“MSSM”), on
January 13, 2014, at the request of Plaintiff’s counsel. In that MSSM, Dr. Johnson found Plaintiff
could not complete a normal workday or workweek without interruption from psychologically
based symptoms, and could not perform a consistent pace without an unreasonable number and
length of rest breaks. Dr. Johnson indicated that Plaintiff had no limitations in memory and only
moderate limitations in maintaining attention and concentration for extended periods. Dr.
Johnson opined that Plaintiff was markedly limited in her ability to accept instructions, to respond
appropriately from criticism from supervisors, and to get along with coworkers.
Southeast Missouri Hospital (Tr. 457-504)
Between July 28, 2011, and December 23, 2013, Plaintiff received treatment at Southeast
On July 28, 2011, Plaintiff presented for evaluation of an abscess. The treating doctor
observed Plaintiff ambulating without assistance and noted a normal psychiatric examination with
normal insight and concentration.
During treatment on August 10, 2012, a physical examination of Plaintiff’s back showed
no tenderness or palpation and a normal inspection. The treating doctor noted Plaintiff had
normal insight and concentration.
During treatment on January 9, 2013, the treating doctor found Plaintiff had normal
insight and concentration.
On May 5, 2013, Plaintiff presented complaining of low back pain after riding a lawn
mower for 90 minutes. Radiology results showed extensive bilateral nephrolithiasis.4
Nephrolithiasis is defined as the process of forming a kidney stone.
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An x-ray of Plaintiff’s lumbar spine showed narrowing of the L5/S1 disc space and
bilateral nephrolithiasis. An MRI of Plaintiff’s lumbar spine showed a mild disc extrusion at
L5/S1 producing spinal stenosis, encroachment of S1 and S2 nerves by large paracentral left disc
extrusion, mild central canal stenosis, and bilateral mild-moderate foraminal stenosis. Dr. Scott
explained to Plaintiff that she was not a good surgical candidate due to lack of prior conservative
treatment and lack of correlating symptoms. Dr. Scott referred Plaintiff for pain management
treatment and recommended smoking cessation.
During treatment on December 23, 2013, the treating doctor noted Plaintiff was
cooperative and oriented to person, place, and time.
Chaffee Medical Clinic - Dr. Thymois Lambrou (Tr. 512-13, 542-46)
Between December 3, 2013, and February 6, 2014, Dr. Thymois Lambrou treated Plaintiff
for chronic back pain and anxiety by prescribing medications.
Dr. Lambrou completed a two page “Medical Source Statement - Physical” (“MSSP”),
dated January 16, 2014, at the request of Plaintiff’s counsel. In that MSSP, Dr. Lambrou found
Plaintiff could lift/carry less than five pounds; stand/walk continuously less than 15 minutes;
stand/walk throughout an eight hour workday less than one hour; sit continuously without a break
for less than 15 minutes; sit continuously with usual breaks for less than one hour; and limited
Cape Spine & Neurosurgery - Dr. Brandon Scott (Tr. 548-53)
On referral by Dr. Lambrou, Plaintiff presented with lower back pain for an evaluation by
Dr. Brandon Scott. Plaintiff reported that her back pain was at a level ten, but she had no
functional limitation and was able to function independently. Plaintiff reported not seeking any
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conservative treatment for her low back pain. Dr. Scott observed that Plaintiff’s gait was normal,
and straight leg raise testing produced negative results. Lower back examination showed no pain
with palpation, and full active and passive range of motion in flexion, extension, lateral flexion and
rotation. Neurologic examination showed recent and remote memory were intact, and Plaintiff
was alert and oriented. Dr. Scott listed in his assessment: lumbar disc extrusion; degeneration of
lumbar disc; and spinal stenosis, lumbar region, without neurogenic claudication (mild,
Southeast Primary Care - Dr. Charity Sandvoe (Tr. 361-94)
Between May 13, 2013, and November 21, 2013, Dr. Charity Sandvoe treated Plaintiff as
her primary care physician.
On May 13, 2013, Plaintiff established care and reported worsening chronic low back
pain. Examination showed lumbar spine tenderness. Dr. Sandvoe prescribed Norco. In followup treatment on May 21, 2013, Plaintiff acknowledged her back pain symptoms were not as
severe, and that she failed to pick up the prescribed medication after her last visit. Plaintiff
returned on June 10, 2013, and reported her back symptoms were aggravated by daily activities.
In follow-up treatment on July 10, 2013, Plaintiff reported no longer being treated by
Dr.Vaught because she could not afford him, and that her back pain was stable. Plaintiff reported
some relief with muscle relaxers. On July 24, 2103, Plaintiff reported her back pain was stable,
and her symptoms were aggravated by daily activities. Dr. Sandvoe continued Plaintiff’s
medication regimen. During treatment on November 21, 2013, Plaintiff declined Dr. Sandvoe’s
offer for a referral to a clinic at Washington University where neurosurgeons treat patients with
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Regional Brain & Spine - Dr. Kevin Vaught (Tr. 348-59)
On June 4, 2013, and January 2, 2014, Dr. Kevin Vaught treated Plaintiff’s low back pain.
In a New Patient First Appointment Form completed by Plaintiff on June 4, 2013, Plaintiff
reported having low back pain since December 2010, and having been treated with medications,
physical therapy, exercise, and bed rest. In treatment on January 2, 2014, Plaintiff explained that
she started having slight lower back pain in 2010 but in early May she experienced sharp pain in
her left lower back with pain radiating into her leg. Plaintiff questioned whether a “walker use is
indicated.” (Tr. 348) A mental status examination showed Plaintiff’s memory was intact for
recent and remote events and her attention/concentration was normal. Dr. Vaught noted Plaintiff
had an abnormal, wide stance gait. Radiographic images showed normal lumbar lordosis and a
very large left-sided disc herniation. Dr. Vaught discussed definitive therapy with surgical
recommendations, as well as conservative management with steroids. Plaintiff elected the
conservative treatment, and Dr. Vaught prescribed a Medrol Dosepak and a proton pump
Neurosciences Center - Dr. Aaron Koonce (Tr. 328-38)
On July 1, 2013, Plaintiff presented for neurological evaluation of muscle twitching.
Plaintiff had a walker to use as needed. Plaintiff reported a memory impairment with associated
symptoms including forgetfulness and poor concentration. Examination showed a normal
musculature, no joint deformities, and a normal range of motion for all four extremities. Dr.
Koonce found Plaintiff to be “very embellished” during strength testing and examination, and
observed Plaintiff “quickly hop right down from examination table to the floor upon request.”
(Tr. 337) Dr. Koonce also observed Plaintiff having no trouble with ambulation and assessed a
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normal neurological examination with embellishment.
In follow-up treatment on August 12, 2013, Plaintiff reported spontaneous improvement
in her muscle twitching. The lab studies showed normal results. Dr. Koonce noted that Plaintiff
used a wheeled walker to ambulate on that day. Dr. Koonce observed Plaintiff climb up and
down the examination table without assistance or apparent difficulty and noted her examination
remained very embellished.
Southeast Missouri Hospital (Tr. 268-301)
On three occasions between June 7, 2012, and August 10, 2012, Plaintiff received
treatment at Southeast Missouri Hospital for abdominal pain and women’s issues. Plaintiff
reported not feeling sad or depressed. During treatment, psychiatric examination showed Plaintiff
was oriented with normal affect, insight, and concentration. Examination of Plaintiff’s back
showed no tenderness, normal inspection, and her gait was normal.
Saint Francis Medical Center (Tr. 322-26)
On April 4, 2013, Plaintiff presented in the emergency room at Saint Francis Medical
Center complaining of abdominal and groin pain, and received treatment for a kidney stone. No
previous psychiatric history was indicated in the past medical history section. Examination
showed no back pain and no tenderness to palpation. The treating doctor observed Plaintiff had
no anxiety, normal insight, and normal concentration. The nurse observed Plaintiff to have a
steady gait and noted Plaintiff was cooperative, alert, and oriented x3.
Safe House for Women - Charlie Harrison (Tr. 447-50, 506-07)
On January 9, 2014, Charlie Harrison, MS, LPC, completed on intake assessment. Mr.
Harrison noted that Plaintiff had been the victim of traumatic events on several occasions,
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including domestic and sexual violence. Plaintiff reported a markedly diminished interest in
enjoyable activities, isolating herself from others, and difficulty concentrating.
Mr. Harrison completed a two page “Medical Source Statement - Mental” (“MSSM”),
finding Plaintiff markedly limited in her ability: to understand detailed instructions; to maintain
attention and concentration for extended periods; to work in coordination with or proximity of
others; and to complete a normal workday. In social interaction, Mr. Harrison found Plaintiff to
be markedly limited in her ability to respond appropriately to criticism from supervisors.
Cape Girardau Uriology Associates - Dr. Donald Gentle (Tr. 452-55)
During treatment for kidney stones on April 8, 2013, Plaintiff reported being generally
satisfied with life. Dr. Gentle noted Plaintiff had a normal gait, and she was oriented to time,
place, and person.
Other Record Evidence
Medical Opinion -Dr. Anne Winkler (Tr. 519)
At the request of the ALJ, Dr. Anne Winkler completed a Medical Opinion form dated
February 19, 2014, after reviewing the available medical evidence.5 Dr. Winkler found that
Plaintiff had psychiatric issues, medulllary sponge kidney, and degenerative disc disease (“DDD”)
established on May 29, 2013, but that none of her impairments, combined or separately, met or
equaled any impairment described in the Listing of Impairments. In support, Dr. Winkler cited the
medical evidence, including normal imaging and no impairments from lumbar degenerative disc
disease. Dr. Winkler deferred psychiatric issues to the mental health experts. Dr. Winkler opined
At the time Dr. Winkler prepared this opinion, Dr. Lambrou’s treatment notes from December 3,
2013, through February 6, 2014, and the medical record from Cape Spine & Neurosurgery dated
February 11, 2014, were not part of the record available to Dr. Winkler. (Tr. 541-53)
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that the medical evidence did not support any manipulative limitations inasmuch as there was no
evidence of upper extremity problems. Likewise, Dr. Winkler noted there was no support in the
record for any environmental limitations.
Dr. Winkler completed a Medical Source Statement of Ability to Do Work-Related
Activities (Physical) (“MSS”). Dr. Winkler found Plaintiff could lift/carry up to ten pounds
frequently and up to twenty pounds occasionally; sit for eight hours in a workday; stand for three
hours in a workday; and walk for four hours in a workday. Dr. Winkler found no limitations with
the use of Plaintiff’s hands. As to postural limitations, Dr. Winkler found Plaintiff could never
climb ladders or scaffolds, and could occasionally climb stairs and ramps, balance, stoop, kneel,
crouch, and crawl.
Disability Determination Explanation -Dr. Robert Cottone (Tr.
Dr. Robert Cottone, a state agency psychologist, completed a Disability Determination
Explanation in connection with Plaintiff’s disability claim, dated October 19, 2012. In forming his
opinion, Dr. Cottone considered a SSA field office disability report and Dr. Johnson’s October 9,
2012, treatment note. Dr. Cottone opined that “[t]here are moderate cpp6 and social limits at
worst. She should avoid public contact work. ... Her reported limitations appear more severe
than would be predicted based on the medical evidence and history of treatment.” (Tr. 60) In a
Mental Residual Functional Capacity assessment (“MRFC”) completed on the same day, Dr.
Cottone found Plaintiff has understanding and memory limitations in that she is markedly limited
in her ability to understand and remember detailed instructions. Dr. Cottone further found
Plaintiff has sustained concentration and persistence limitations in that she is markedly limited in
The undersigned interprets cpp to be shorthand for concentration, persistence, or pace.
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her ability to: maintain attention and concentration for extended periods; to carry out detailed
instructions; to work in coordination with or proximity to others; and to complete a norm al
workday or workweek without interruptions from psychologically based symptoms. Dr Cottone
also found Plaintiff has social interaction limitations in that she is markedly limited in her ability
to: interact appropriately with the general public; to get along with coworkers; and to accept
instructions and respond appropriately to criticism from supervisors.
Standard of Review and Analytical Framework
To be eligible for Supplemental Security Income (“SSI”), Plaintiff must prove that she is
disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Secretary of
Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992). Under the Social Security Act, a
disability is defined as the “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than 12 months.”
42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A). Additionally, a claimant will be found to have a
disability “only if [her] physical or mental impairment or impairments are of such severity that
[she] is not only unable to do [her] 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.” 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B); see also Bowen v. Yuckert, 482 U.S.
137, 140 (1987).
The Commissioner has promulgated regulations outlining a five-step process to guide an
ALJ in determining whether an individual is disabled. First, the ALJ must determine whether the
individual is engaged in “substantial gainful activity.” If she is, then she is not eligible for
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disability benefits. 20 C.F.R. § 404. 1520(b). If she is not, the ALJ must consider step two which
asks whether the individual has a “severe impairment” that “significantly limits [the claimant’s]
physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If the claimant
does not have a severe impairment, she is not eligible for disability benefits. If the claimant has a
severe impairment, the ALJ proceeds to step three and determines whether the impairment meets
or is equal to one determined by the Commissioner to be conclusively disabling. If the impairment
is specifically listed, or is equal to a listed impairment, the claimant will be found disabled. 20
C.F.R. § 404.1520(d). If the impairment is not listed, or is not the equivalent of a listed
impairment, the ALJ proceeds to step four which asks whether the claimant is capable of doing
past relevant work. If the claimant can still perform past work, she is not disabled. 20 C.F.R. §
404.1520(e). If the claimant cannot perform past work, the ALJ proceeds to step five to
determine whether the claimant is capable of performing other work in the national economy. In
step five, the ALJ must consider the claimant’s “age, education, and past work experience.” Only
if a claimant is found incapable of performing other work in the national economy will he be found
disabled. 20 C.F.R. § 404.1520(f); see also Bowen, 482 U.S. at 140-41 (explaining five-step
Court review of an ALJ’s disability determination is narrow; the ALJ’s findings will be
affirmed if they are supported by “substantial evidence on the record as a whole.” Pearsall, 274
F.3d at 1217. Substantial evidence has been defined as “less than a preponderance, but enough
that a reasonable mind might accept it as adequate to support a decision.” Id. The court’s review
“is more than an examination of the record for the existence of substantial evidence in support of
the Commissioner’s decision, we also take into account whatever in the record fairly detracts
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from that decision.” Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998). The Court will
affirm the Commissioner’s decision as long as there is substantial evidence in the record to
support his findings, regardless of whether substantial evidence exists to support a different
conclusion. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001).
In reviewing the Commissioner's decision, the Court must review the entire administrative
record and consider:
The credibility findings made by the ALJ.
The claimant's vocational factors.
The medical evidence from treating and consulting physicians.
The claimant's subjective complaints relating to exertional and nonexertional activities and impairments.
Any corroboration by third parties of the claimant's impairments.
The testimony of vocational experts when required which is based upon
a proper hypothetical question which sets forth the claimant's impairment.
Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir. 1992) (quoting
Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989)).
Finally, a reviewing court should not disturb the ALJ’s decision unless it falls outside the
available “zone of choice” defined by the evidence of record. Buckner v. Astrue, 646 F.3d 549,
556 (8th Cir. 2011). A decision does not fall outside that zone simply because the reviewing
court might have reached a different conclusion had it been the finder of fact in the first instance.
Id.; see also McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010) (explaining that if
substantial evidence supports the Commissioner’s decision, the court “may not reverse, even if
inconsistent conclusions may be drawn from the evidence, and [the court] may have reached a
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Analysis of Issues Presented
The broad issue in this case is whether the final decision of the Commissioner is supported
by substantial evidence on the record as a whole. In her brief before this Court, Plaintiff contends
that the ALJ committed reversible error when: (1) the ALJ failed to specify what weight he gave
to the opinion of Dr. Courtney Johnson, her treating psychiatrist, and the reasons why he
discredited her opinions; and (2) the ALJ’s RFC is not supported by substantial weight. As
explained below, because the Court finds the ALJ erred in articulating what weight, if any, he
assigned to the opinions of Dr. Johnson and his reasons for doing so, the Court will only address
In his written decision, the ALJ assessed Dr. Johnson’s MSSM as follows:
The undersigned has considered the medical source statement from the [Plaintiff’s]
psychiatrist, Courtney Johnson, M.D. However, while the medical evidence of record
does demonstrate some degree of psychological impairment, it does [not]7 support the
degree of limitation opined by Dr. Johnson. Mental status examinations have
consistently revealed normal attention, concentration and memory. Although Dr.
Johnson’s treatment notes document subjective reports of anxiety and irritability,
these allegations are not totally consistent with the [Plaintiff’s] activities of daily
living. As noted, she goes shopping, she can go out alone, and she goes to the library.
This shows that the [Plaintiff] is capable of at least limited social interaction. ... The
medical evidence of record, as just described, does not support marked and extreme
(Tr. 18) (internal citations omitted)
The record before the ALJ also includes the opinion of state agency psychologist Dr.
Cottone that Plaintiff has “moderate cpp and social limits at worst. She should avoid public
contact work.... Her reported limitations appear more severe than would be predicted based on
The undersigned finds that the ALJ clearly intended to have “not” in this sentence.
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the medical evidence and history of treatment.” (Tr. 60) In the January 13, 2014, MSSM, Dr.
Johnson, Plaintiff’s treating physician, opined that Plaintiff was markedly limited in her ability to
accept instructions and respond appropriately from criticism from supervisors and to get along
with coworkers. Dr. Johnson further opined that Plaintiff had experienced no limitations in
memory and had only moderate limitations in maintaining attention and concentration for
In the October 19, 2012, MRFC, Dr. Cottone found Plaintiff had understanding and
memory limitations in that she was markedly limited in her ability to understand and remember
detailed instructions. Dr. Cottone further found Plaintiff had sustained concentration and
persistence limitations in that she was markedly limited in her ability to: maintain attention and
concentration for extended periods; carry out detailed instructions; work in coordination with or
proximity to others; and complete a norm al workday or workweek without interruptions from
psychologically based symptoms. Dr. Cottone also found Plaintiff had social interaction
limitations in that she was markedly limited in her ability to: interact appropriately with the
general public; get along with coworkers; and accept instructions and respond appropriately to
criticism from supervisors.
Having reviewed the entire record, the undersigned concludes that the ALJ erred in his
treatment of the opinion evidence in this case. When evaluating opinion evidence, an ALJ must
explain in his decision the weight given to any opinions from treating sources, nontreating
sources, and nonexamining sources. See 20 C.F.R. §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii). By
explaining the weight given to such medical source opinions, an ALJ both complies with the
Regulations and assists the Court in its review of the decision. See Willcockson v. Astrue, 540
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F.3d 878, 880 (8th Cir. 2008). Further, Social Security Ruling 96-6p dictates that “[f]indings of
fact made by State agency medical and psychological consultants and other program physicians
and psychologists regarding the nature and severity of an individual’s impairment(s) must be
treated as expert opinion evidence of nonexamining sources at the [ALJ] ... level of
administrative review.” SSR 96-6p, 1996 WL 362203, at *34467. Accordingly, “the [ALJ] ...
must consider and evaluate any assessment of the individual’s RFC by a State agency medical or
psychological consultant and by other program physicians or psychologists.” Id. at *34468.
Generally, the Commissioner is to give a treating medical source’s opinion on the issues
and severity of an impairment controlling weight if such opinion “is well-supported by medically
acceptable clinical and diagnostic techniques and is not inconsistent with the other substantial
evidence in [the] case record.” 20 C.F.R. § 404.1527(d)(2). The Commissioner may “discount or
even disregard the opinion of a treating physician where other medical assessments are supported
by better or more thorough medical evidence, or where a treating physician renders inconsistent
opinions that undermine the credibility of such opinions.” Prosch v. Apfel, 201 F.3d 1010, 1013
(8th Cir. 2000) (citations omitted). “Unless a treating source’s opinion is given controlling
weight, the [ALJ] must explain in the decision the weight given to the opinions of a State agency
medical or psychological consultant[.]” 20 C.F.R. §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii). In
circumstances where a medical source opinion may affect the outcome of a case, substantial
evidence does not support an ALJ’s adverse decision if it cannot be determined what, if any,
weight the ALJ afforded the opinion. McCadney v. Astrue, 519 F.3d 764, 767 (8th Cir. 2008)
(An ALJ can discount a treating physician’s opinion, but must explain why); see also Woods v.
Astrue, 780 F. Supp. 904, 913-14 (E.D. Mo. 2011).
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If an ALJ declines to give controlling weight to a treating physician’s opinion, the ALJ
must consider the following factors in determining the appropriate weight: length and frequency
of the treatment relationship; nature and extent of the treatment relationship; evidence provided
by the source in support of the opinion; consistency of the opinion with the record as a whole; and
the source’s level of specialization. 20 C.F.R. §§ 404.1527(c), 416.927(c), at *5 (requiring the
ALJ to provide “good reasons in the notice of the determination or decision for the weight given
to a treating source's medical opinion(s)”). Whether the ALJ grants a treating physician’s
substantial or little weight, “[t]he regulations require that the ALJ ‘always give good reasons’ for
the weight afforded to a treating physician’s evaluation.” Reed v. Barnhart, 399 F.3d 917, 921
(8th Cir. 2005) (quoting 20 C.F.R. § 404.1527(d)(2)). “Failure to provide good reasons for
discrediting a treating physician’s opinion is a ground for remand.” Anderson v. Barnhart, 312
F.Supp.2d 11876, 1194 (E.D. Mo. 2004). See also Tilley v. Astrue, 580 F.3d 675, 680-81 (8th
Cir. 2009); Singh v. Apfel, 222 F.3d 448, 452-53 (8th Cir. 2000).
Dr. Johnson’s MSSM includes mental limitations more restrictive than those determined
by the ALJ. Indeed, Dr. Johnson opined Plaintiff was markedly limited in her ability to accept
instructions and respond appropriately from criticism from supervisors and to get along with
coworkers. Although the ALJ discussed the findings of Dr. Johnson in his decision and found
that the medical evidence of record supported some degree of psychological impairment, even the
degree of limitation opined by Dr. Johnson, the ALJ’s analysis as to Plaintiff’s RFC contains no
mention of such limitations. Because the extent to which the ALJ may credit or discredit Dr.
Johnson’s opinions may affect the outcome of this case, the ALJ’s failure to fully address these
opinions and fully explain the weight given to them renders his decision of non-disability
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unsupported by substantial evidence. The “primary difficulty is not with the possibility that the
ALJ discounted [the] opinion[;] ... the problem with the ALJ’s opinion is that it is unclear whether
the ALJ did discount [the] opinion, if it did so, why.” McCadney, 519 F.3d at 767.
Moreover, a review of the ALJ’s decision shows the ALJ neither applied the factors as
required, nor provided sufficient reasons for discrediting Dr. Johnson’s opinions. The ALJ found
that the medical evidence and Plaintiff’s daily activities did not support the marked limitations
found by Dr. Johnson in the MSSM. In discounting the opinions in Dr. Johnson’s MSSM, the
ALJ did not adhere to the factors identified in 20 C.F.R. §§ 404.1527(c), 416.927(c).
Accordingly the Court finds that the ALJ failed to provide sufficient reasons in weighing Dr.
Johnson’s opinions. This is an issue for the ALJ, not the Court, to address in the first instance.
See Pfitzner v. Apfel, 169 F.3d 566, 569 (8th Cir. 1999).
Here, the ALJ gave significant weight to the opinions of Dr. Cottone over that of Dr.
Johnson, Plaintiff’s treating psychiatrist. Although the ALJ is required to consider the findings
made by state-agency physicians and psychologists, the undersigned cannot say that Dr. Cottone’s
findings are supported by better or more thorough medical evidence than Dr. Johnson’s. Nor was
Dr. Johnson’s MSSM’s inconsistent overall with her records from Plaintiff’s office visits, which
are replete with references to Plaintiff’s irritability and anxiety. In her MSSM, Dr. Johnson
indicated that Plaintiff had no limitations in memory and only moderate limitations in maintaining
attention and concentration for extended periods which is consistent with her mental examinations
in her treatment notes. Moreover, the ALJ did not specify what weight, if any, he placed on the
opinions of Dr. Johnson.
In his written decision, the ALJ also found that Plaintiff’s activities of daily living
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demonstrated her ability to have limited social interaction and were “not as limited as one would
expect, in light of her allegations fo disabling medical and mental impairments.” (Tr. 18)
Although the undersigned agrees that shopping is an activity that necessarily includes interaction
with the public, going out alone and going to the library are not activities the necessarily include
substantial interaction with the public or require the ability to accept instructions, respond
appropriately to criticism, or to get along with coworkers. Other than the ALJ’s finding that
Plaintiff’s self-reported daily activities demonstrate her ability for some limited social interaction,
the ALJ does not discuss or address how these daily activities would have any bearing on
Plaintiff’s ability to accept instructions or respond appropriately to criticism form supervisors or
get along with coworkers. The ALJ does not discuss or address any of Plaintiff’s daily activities
or the extent to which such activities are inconsistent with Plaintiff’s consistent subjective
complaints which would impact her ability to accept instructions or respond appropriately to
criticism. Further, the RFC includes some limitations regarding Plaintiff’s ability to be around
The undersigned believes that reversal and remand are required here for further
proceedings and are not merely a harmless defect in opinion writing. See Willcockson v Astrue,
540 F.3d 878, 879-880 (8th Cir. 2008) (“Several errors and uncertainties in the [ALJ’s] opinion
that individually might not warrant remand, in combination create sufficient doubt about the
ALJ’s rationale for denying [the Plaintiff’s] claims to require further proceedings....”).
On remand, the ALJ should specifically identify what, if any, weight is to be given to Dr.
Johnson’s opinions. McCadney, 519 F.3d at 767. The ALJ must then apply the factors as
required by 20 C.F.R. §§ 404.1527(c), 416.927(c), and articulate specific reasons for the weight
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given, if any, to Dr. Johnson’s opinions. See Draper v. Barnhart, 425 F.3d 1127, 1130 (8th Cir.
2005) (noting “inaccuracies, incomplete analyses, and unresolved conflicts of evidence” are
proper basis for remand). The ALJ should also clarify the limits of Plaintiff’s lifting capacity.
For the foregoing reasons, the ALJ’s decision is not supported by substantial evidence on
the record as a whole. Where an ALJ fails to properly consider opinion evidence of record, it
cannot be said that the resulting RFC determination is supported by substantial evidence on the
record as a whole. See Holmstrom v. Massanari, 270 F.3d 715, 722 (8th Cir. 2001). In the
instant case, the ALJ failed to properly evaluate Dr. Johnson’s opinion and assign weight to be
given when to that opinion. The matter will therefore be remanded for further consideration.
Although the Court is aware that the ALJ’s decision as to non-disability may not change
after properly considering all the evidence of record and undergoing the required analysis, the
determination is nevertheless one that the Commissioner must make in the first instance. See
Pfitzner, 169 F.3d at 569.
IT IS HEREBY ORDERED that the decision of the Commissioner be REVERSED. A
separate Judgment in accordance with this Memorandum and Order is entered this same date.
Dated this 21st day of September, 2016.
/s/ John M. Bodenhausen
JOHN M. BODENHAUSEN
UNITED STATES MAGISTRATE JUDGE
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