Rice v. Colvin

Filing 20

MEMORANDUM AND ORDER..IT IS HEREBY ORDERED that, pursuant to sentence four of 42 U.S.C. § 405(g), the decision of the Commissioner is REVERSED, and this cause is REMANDED to the Commissioner for further proceedings consistent with this opinion. Signed by Magistrate Judge Patricia L. Cohen on 10/2/17. (MRS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
RICKY RICE,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.

Case No. 1:16-CV-00062 PLC

MEMORANDUM AND ORDER
Ricky Rice (Plaintiff) seeks review of the decision of the Acting Social Security
Commissioner, Nancy A. Berryhill, denying his applications for Disability Insurance Benefits
and Supplemental Security Income under the Social Security Act. 2 For the reasons set forth
below, the case is reversed and remanded.
I.

Background and Procedural History

On August 22, 2013, Plaintiff filed applications for Supplemental Security Income and
Disability Insurance Benefits. (Tr. 144-56). The applications allege disability beginning on May
1, 2012, and were based on the following medical conditions: kidney failure, thyroid problems,
colon problems, severe cluster headaches, lower back pain, neuropathy, left leg problems, high
blood pressure, and high cholesterol. (Tr. 71, 80). On September 27, 2013, the Social Security
Administration (SSA) denied Plaintiff’s claims, and he filed a timely request for a hearing before
1

Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to be
taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security
Act, 42 U.S.C. § 405(g). (ECF No. 8).
2
The parties consented to the exercise of authority by the United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c). (ECF No. 7).
1

an administrative law judge (ALJ). (Tr. 71-88, 99-101). In a decision dated October 21, 2014, the
ALJ found that Plaintiff “has not been under a disability within the meaning of the Social
Security Act from May 1, 2012, through the date of this decision.” (Tr. 29). The SSA Appeals
Council denied Plaintiff’s subsequent request of review of the ALJ’s decision on February 1,
2016. (Tr. 1-4). Plaintiff has exhausted all administrative remedies, and the ALJ’s decision
stands as the Commissioner’s final decision. Sims v. Apfel, 530 U.S. 103, 106-07 (2000).
II.

The Administrative Proceeding

A. Testimony at Hearing
Plaintiff appeared with counsel at an administrative hearing in September 2014. (Tr. 4570). Plaintiff testified that he was fifty-one years old, had a GED, and lived alone in an
apartment. (Tr. 48, 59, 61). Plaintiff most recently worked in a factory for approximately three
months in August 2013 before quitting because his back pain made it difficult to stand. (Tr. 49,
59). Prior to this, Plaintiff assembled lawn mower engines from 2008 to 2012, and worked as a
truck driver. (Tr. 49-51).
Plaintiff testified that the sciatic nerves in his back, numbness in his feet and left leg, and
swollen joints, likely caused by his diabetes, limited his ability to work. (Tr. 54). Plaintiff took
Januvia for his diabetes which “pretty much” controlled his diabetes, although his blood sugar
levels still fluctuated “quite a bit.” (Tr. 54-55). He took medication for his thyroid and for high
blood pressure, both of which he had been taking since 2009. (Tr. 55). Plaintiff stated that his
blood pressure “runs high” and in the six months before the hearing, his medication level was
increased. (Tr. 56). Plaintiff also testified that he took gabapentin and Tramadol for his hands,
joints, and back pain and that he was prescribed a muscle relaxer but was not taking it because he
could not afford the medication. (Tr. 56-57). For depression, Plaintiff took Cymbalta that “kind

2

of help[ed] a little” but he was not currently seeing a psychiatrist because he did not have
insurance. (Tr. 58). Plaintiff stated that he did not have side effects from his medications. (Tr.
64)
Plaintiff’s pain level before medication was normally a seven out of ten, and medication
reduced it to a six out of ten. (Tr. 57). Plaintiff also testified that a bath would help relieve his
pain, but he had difficulty getting in and out of the bathtub. (Tr. 64).
During the day, Plaintiff spent most of his time lying down, sometimes watching
television. (Tr. 60). When cleaning his house, Plaintiff would have to take breaks approximately
every ten minutes. (Tr. 60, 64). Plaintiff’s sister-in-law did his laundry. (Tr. 61). Plaintiff could
cook his own meals and go to the grocery store, but a friend usually accompanied him. (Tr. 6162). When Plaintiff tried to go to the store himself the day before the hearing it “didn’t go too
well” and he had to leave his groceries at the door and rest before retrieving them. (Tr. 61). The
only place Plaintiff regularly went was to the doctor and church on Sundays. (Tr. 61-62).
Plaintiff stated that he did not drive so family usually drove him. (Tr. 59-60). Finally, Plaintiff
testified that he could walk half a block or less before he needed to stop and rest. (Tr. 63).
A vocational expert, Susan Shea, also testified at the hearing. (Tr. 65). The ALJ asked
Ms. Shea to consider a hypothetical individual with the same age, education, and work
experience as Plaintiff who was capable of:
work at the light exertional level with the following additional limitations. He can
occasionally climb ramps and stairs, stoop, and crouch. He should never climb
ladders, ropes, or scaffolds, kneel, or crawl. He should avoid concentrated
exposure to hazards such as unprotected heights and dangerous machinery. He
should likewise avoid concentrated exposure to vibration.
(Tr. 67). Ms. Shea stated that with these restrictions, the hypothetical individual would not be
able to perform any of Plaintiff’s past jobs, but would be able to perform other jobs available in

3

significant numbers in the economy. (Id.). When the ALJ added the condition that the
hypothetical individual needed to be able to alternate between sitting and standing at the work
station one to three minutes every hour, Ms. Shea testified that there would still be available
jobs. (Tr. 68). The ALJ further altered the hypothetical to allow the individual to have at least
two fifteen-minute breaks in addition to regularly scheduled morning, lunch, and afternoon
breaks. (Tr. 68) Ms. Shea testified that there would be no available jobs in the economy under
those conditions. (Tr. 68-69).
B. Relevant Medical Records3
In February 2011, before the alleged onset date, Plaintiff saw Dr. Christopher
Montgomery.

(Tr. 313-15). Plaintiff reported a history of hypertension, diabetes,

hypothyroidism, hyperlipidemia, and colonic polyps. (Tr. 313). Dr. Montgomery noted that
Plaintiff was in “no acute distress” and had a normal mood, affect, attention span, and
concentration. (Id.). Plaintiff’s medications were updated to include lisinopril, Pravachol,
Januvia, and levothyroxine sodium. (Tr. 314-15).
Plaintiff returned to Dr. Montgomery in June 2011 complaining of abdominal bloating
and rectal pain. (Tr. 310-12). Plaintiff reported he was not taking his cholesterol medications, but
was trying to eat healthier and had lost some weight. (Tr. 310). Plaintiff’s physical exam was
unremarkable, and Dr. Montgomery ordered a basic metabolic panel and a colonoscopy for
Plaintiff’s rectal pain and muscle spasms. (Tr. 311).
In September 2011, Plaintiff saw Dr. Montgomery to discuss his laboratory results. (Tr.
307-09). Plaintiff’s cholesterol level had “improved some” but his constipation continued and his

3

Because mental impairments are not at issue in this case, the Court will not discuss records
relating to Plaintiff’s mental health.
4

abdomen was distended. (Tr. 307-08). Dr. Montgomery advised Plaintiff to change his diet and
“try a one[-]time dose of mag citrate” to treat his constipation. (Id.).
In December 2011, Plaintiff returned to Dr. Montgomery complaining of abdominal
bloating. (Tr. 305-06). Plaintiff stated he had no appetite and could go two weeks without having
a bowel movement. (Tr. 305). An exam revealed that Plaintiff’s abdomen was round, tight, and
had “generalized tenderness with no masses[.]” (Tr. 306). Dr. Montgomery ordered an EGD and
a colonoscopy. (Id.). Plaintiff met with Dr. Montgomery to review laboratory results in March
2012. (Tr. 301-04). Plaintiff reported he was not eating or taking his medications properly. (Tr.
301). Dr. Montgomery advised Plaintiff to eat more healthfully and take his medications as
prescribed. (Tr. 302). Dr. Montgomery noted Plaintiff’s colonic polyps had “improved” and
diagnosed Plaintiff with microalbuminuria. (Tr. 303).
Plaintiff saw Dr. Mowaffaq Said in April 2012 for proteinuria and chronic kidney
disease. (Tr. 294-96). Plaintiff reported he did not have difficulties controlling his blood pressure
and A1c levels but did report right side lower back pain. (Tr. 294). Plaintiff also reported that he
was laid-off from his job the Thursday before the appointment and was going to school to be a
probation officer. (Id.). Dr. Said noted that Plaintiff was six feet three inches tall and weighed
258 pounds, “fe[lt] good” physically, and had no depression or anxiety. (Id.). A renal ultrasound
done in March 2012 “showed no evidence of obstruction.” (Tr. 295). Dr. Said diagnosed Plaintiff
with hypertension, diabetes mellitus, dyslipidemia, minimal proteinuria, decreased GFR, and
“most likely diabetic nephropathy.” (Id.). Dr. Said advised Plaintiff to follow up in six months.
(Tr. 295-96).
In October 2012, after the alleged onset date, Plaintiff saw Dr. Tirso Aldana at Poplar
Bluff Regional Medical Center for head and eye pain. (Tr. 266-70). Dr. Aldana’s exam was

5

unremarkable. (Tr. 267). Dr. Aldana diagnosed Plaintiff with arterial hypertension and high
blood pressure and prescribed lisinopril. (Tr. 266). The next day, Plaintiff saw Dr. Said for his
six-month follow-up appoitnment. (Tr. 292-93). Plaintiff complained of “sinus pressure, sinus
drainage, yellow sputum, and headache” and reported that he had lost his insurance so he was not
seeing his primary care physician, taking his blood pressure medication, or taking Januvia for his
diabetes. (Tr. 292). Dr. Said noted “no gross hematuria, no flank pain, no edema, and no
shortness of breath.” (Id.). Dr. Said diagnosed Plaintiff with an upper respiratory infection,
prescribed medications to treat it, and directed Plaintiff to return to his office in three months.
(Tr. 292-93).
Later that month, Plaintiff saw Dr. Kenneth Studyvin at Poplar Bluff Regional Medical
Center for a headache. (Tr. 259-63). Plaintiff reported the pain was the “worst in [his] life” and
rated it at a nine out of ten. (Tr. 260). Dr. Studyvin noted Plaintiff was “anxious, in obvious
distress, [and] severely distressed.” (Tr. 261). Dr. Bryan Meyers did a CT scan of Plaintiff’s head
and found no acute intracranial process, a “probably old” left medial orbital wall blowout
fracture, and mild frontal atrophy. (Tr. 264). Dr. Studyvin diagnosed Plaintiff with cephalgia and
hypertension, prescribed Plaintiff Norco, increased his lisinopril dosage, and advised Plaintiff to
follow up with Dr. Shahid Choudhary. (Tr. 259). Plaintiff saw Dr. Choudhary several days later
and diagnosed him with a migraine. (Tr. 255-57).
In January 2013, Plaintiff saw Dr. Said for a follow-up appointment. (Tr. 291). Plaintiff
complained of sinus drainage, stated that his blood pressure was “running high,” and reported
that he had stopped taking Pravastatin and adjusted his levothyroxine dosage on his own due to
financial difficulties. (Id.). Dr. Said prescribed medications to treat Plaintiff’s upper respiratory
infection and clonidine for Plaintiff’s hypertension. (Id.). Dr. Said noted that Plaintiff’s

6

electrolytes, “renal bone disease/mineral bone disease” and parathyroid hormone were
controlled. (Id.).
Plaintiff saw Dr. Raymond Ketting at Poplar Bluff Regional Medical Center in May
2013. (Tr. 251-54). Plaintiff complained of flank pain in the left and right low back, which Dr.
Ketting described as mild. (Tr. 253). Dr. Ketting noted that Plaintiff had not taken his Synthroid
prescription in a month, diagnosed Plaintiff with hypothyroidism, and refilled his Synthroid. (Tr.
251-52).
In June 2013, Plaintiff began treatment at C&S Medical where he saw Nurse Practitioner
Jo Crabtree, FNP. (Tr. 272-73). Nurse Crabtree noted that Plaintiff’s diabetes was controlled
with medication, he weighed 291 pounds, and he reported no joint or back pain, anxiety,
depression, headaches, or migraines. (Tr. 273). Nurse Crabtree ordered laboratory testing and
updated Plaintiff’s medications to lisinopril, levothyroxine, Flexeril, and Bactrim DS. (Tr. 273,
274-76).
Plaintiff returned to C&S Medical in August 2013 complaining of left hip and thigh pain
that “hurt[] to the bone.” (Tr. 252-53). Plaintiff described the pain as sharp and reported that the
pain was constant, but worsened when he stood for long periods of time. (Tr. 352). A
musculoskeletal exam showed a radiating pain pattern and a reduced range of motion in the left
hip. (Tr. 353). Plaintiff received prescriptions for Neurotin and Tramadol and advice to use rest,
ice, compression, and elevation therapy for his hip pain. (Id.). Plaintiff was further advised to
have an MRI, visit a neurologist when he could afford it, and follow up at C&S Medical in one
month. (Id.).
Later that month, Plaintiff saw Dr. Said for a follow-up appointment. (Tr. 290). Plaintiff
reported that he was having low back pain and difficulty emptying his bladder, but had no

7

headache, no edema, no nausea, no gross hematuria, and no dysuria. (Id.). Dr. Said noted that
Plaintiff’s gait was normal, his hypertension was controlled, and his chronic kidney disease stage
III was stable.

(Id.).

Plaintiff was taking medication for hypothyroidism and Tramadol,

gabapentin, and Flexeril for lower back pain. (Id.). Dr. Said advised Plaintiff to follow up in six
months or “sooner if needed.” (Id.).
On September 24, 2013, Dr. Mark Gates performed a lumbar x-ray. (Tr. 298). Dr. Gates
noted a slight dextroscoliotic curve in the spine, but stated it “could even be due to positioning.”
(Id.). Dr. Gates’s final impression was that there were “no acute findings in the lumbar spine.”
(Id.).
In October 2013, Plaintiff returned to C&S Medical. (Tr. 349-51). Plaintiff complained of
“right and left leg pain to where they give out on him,” depression, and painful bowel
movements, “if he even has one[.]” (Tr. 349). Plaintiff’s physical exam was unremarkable except
for bilateral leg and hip pain. (Tr. 349-50).

At his next appointment at C&S Medical in

December 2013, Plaintiff complained of clogged and popping ears and high blood pressure. (Tr.
346-48). Plaintiff reported he was fatigued and that the week before his visit his blood sugar
levels were in the “upper 200’s.” (Tr. 346). Plaintiff did not report musculoskeletal problems.
(Tr. 349-51).
Plaintiff underwent chest x-rays and an abdominal CT scan in January 2014. (Tr. 33940). The x-rays showed “no acute cardiopulmonary process,” and the abdominal scan revealed a
“small periumbilical herniation measuring up to 2.3 cm which contains a loop of small bowel[,]”
a “supraumbilical midline abdominal wall herniation measuring up to 3.7 cm diameter
containing fat only, without bowel involvement[,]” and “diverticulosis without diverticulitis.”
(Tr. 340). There was no bowel wall edema or obstruction and no hydronephrosis. (Id.).

8

Later that month, Plaintiff saw gastroenterologist Dr. Rafid Hussein. (Tr. 354-57). Dr.
Hussein noted Plaintiff reported no pain, had no functional limitations, and functioned
independently. (Tr. 354). Plaintiff’s exam revealed fatigue and weight change, “spots before
eyes[,]” sinus problems, ringing in ears, hearing problems, frequent wheezing, abdominal
bloating, stool changes, constipation, change in stool caliber, blood in stools, back pain, muscle
cramps, dry skin and rash, abnormal thirst, and anxiety. (Tr. 354). Due to Plaintiff’s “apparent
high grade polyp history[,]” Dr. Hussein ordered a colonoscopy. (Tr. 356).
Plaintiff also visited C&S Medical in January 2014, complaining of a “big knot” under
his left arm. (Tr. 344-35). Nurse Crabtree diagnosed Plaintiff with an abscess on the left axillae
and prescribed Plaintiff Bactrim DS. (Id.). An exam revealed no gross sensory or motor deficits.
(Tr. 345). Nurse Crabtree noted that Plaintiff had applied for disability and opined that “he
would benefit greatly from the diagnostics and treatments he would be afforded. I sincerely
believe he will have a poor prognosis if he cannot receive proper and consistent medical care.”
(Id.).
In March 2014, Plaintiff underwent a colonoscopy at Saint Francis Medical Center. (Tr.
334-36). Plaintiff’s musculoskeletal exam revealed no joint deformity and his gait was normal.
(Tr. 335). Plaintiff had “some mild edema in his feet.” (Id.).
In June 2014, Plaintiff returned to C&S Medical for a follow-up appointment. (Tr. 34243). Plaintiff reported that he had throbbing joint pain, dry mouth, and difficulty breathing at
night. (Tr. 342). His exam was unremarkable. (Id.).
Nurse Crabtree completed a medical source statement in August 2014. (Tr. 360-62).
Nurse Crabtree reported that Plaintiff was diagnosed with hip pain, major depression, diabetic
neuropathy, hypertension, type II diabetes, chronic sciatica and “DJD.” (Tr. 360). She stated that

9

Plaintiff’s symptoms included “chronic joint pain, difficulty ambulating, dizziness, fatigue[,]
numbness in lower extremities, hips ‘give out,’ [and] palpitations.” (Id.). Nurse Crabtree rated
Plaintiff’s bilateral hip and leg pain as moderate to severe and reported that Plaintiff had a “slow,
unsteady gait” and side effects such as dizziness, nausea, and weakness from his medications.
(Id.). She estimated that Plaintiff could: frequently lift less than ten pounds, occasionally lift ten
pounds, and rarely lift twenty pounds; never twist, stoop, balance, crouch, crawl, or climb;
occasionally finger or feel with his hands and frequently reach or handle; sit for ten minutes
before needing to change positions; sit for two hours in an eight-hour work day; stand for ten
minutes at a time; and stand for less than two hours of an eight-hour work day. (Tr. 361). Nurse
Crabtree further opined that Plaintiff would require two to three unscheduled breaks during a
work day, would need to elevate his legs for two hours of an eight-hour work day, and would
likely have four “bad days” per month due to his symptoms. (Tr. 362). Finally, Nurse Crabtree
reported that Plaintiff needed a cane, but could not afford one. (Id.).
C. The ALJ’s Determination
The ALJ applied the five-step evaluation process set forth in 20 C.F.R. § 404.1520 and §
416.9204 and found that Plaintiff: (1) had not engaged in substantial gainful activity since May
1, 2012; (2) had severe impairments of degenerative disc disease, peripheral neuropathy, and
obesity and the non-severe impairments of microalbuminuria, proteinuria, headaches, colon
problems, essential hypertension, diabetes mellitus, thyroid disorder, anxiety disorder, and
4

To determine whether a claimant is disabled, the Commissioner engages in a five-step
evaluation process. See 20 C.F.R. §§ 404.1520(a), 416.920(a). Those steps require a claimant to
show that he or she: (1) is not engaged in substantial gainful activity; (2) has a severe
impairment or combination of impairments which significantly limits his or her physical or
mental ability to do basic work activities or (3) has an impairment which meets or exceeds one of
the impairments listed in 20 CFR Part 404, Subpart P, Appendix 1; (4) is unable to return to his
or her past relevant work; and (5) the impairments prevent him or her from doing any other
work. Id.
10

mental health; and (3) did not have an impairment or combination of impairments that met or
medically equaled the severity of one of the listed impairments in 20 CFR § 404, Subpart P,
Appendix 1. (Tr. 31-33). The ALJ noted Plaintiff complained that his impairments limited his
“ability to squat, bend, stand, walk, and climb stairs,” which limited his ability to “put on his
shoes, walk too far, and go up a flight of stairs.” (Tr. 34). The ALJ found that “the claimant’s
medically determinable impairments could reasonably be expected to cause the alleged
symptoms[,]” but found “the claimant’s statements concerning the intensity, persistence and
limiting effects of these symptoms” were “not entirely credible” because of the inconsistencies
between Plaintiff’s allegations, the medical evidence, and Plaintiff’s activities. (Tr. 34, 36).
The ALJ summarized and evaluated Plaintiff’s medical records and the opinion evidence.
She noted that the medical records showed that Plaintiff’s “course of treatment has been minimal
and conservative with few observations of signs or symptoms which would prevent him from
performing work related activities.” (Tr. 34). The ALJ gave Nurse Crabtree’s medical source
statement little weight because it was “not consistent with the findings made during the course of
claimant’s treatment with Drs. Said and Montgomery” and the nurse practitioner was not an
acceptable medical source. (Tr. 36). Based on these considerations and the objective medical
evidence in the record, the ALJ found that Plaintiff retained the residual functional capacity
(RFC) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he
can occasionally stoop, crouch, and climb ramps and stairs but never ladders,
ropes, or scaffolds; he cannot kneel or crawl; he should avoid concentrated
exposure to vibration and hazards such as unprotected heights and dangerous
machinery; and, he requires an option to sit or stand while remaining at the work
station for 1 to 3 minutes every hour.
(Tr. 33).

11

At step four of the evaluation process, the ALJ found that Plaintiff was unable to perform
any past relevant work. (Tr. 36). Finally, based on the vocational expert’s testimony, the ALJ
determined that Plaintiff retained the RFC to perform other jobs existing in significant numbers
in the national economy, and was therefore not disabled within the meaning of the Social
Security Act. (Tr. 37-38).
III.

Standard of Judicial Review

The court must affirm the ALJ’s decision if it is supported by substantial evidence on the
record as a whole. Buford v. Colvin, 824 F.3d 793, 795 (8th Cir. 2016); 42 U.S.C. § 405(g).
“Substantial evidence ‘is less than a preponderance, but enough so that a reasonable mind might
find it adequate to support the conclusion.’” Cruze v. Chater, 85 F.3d 1320, 1323 (8th Cir. 1996)
(quotation omitted). In determining whether the evidence is substantial, the court considers
evidence that both supports and detracts from the Commissioner’s decision. Pate-Fires v. Astrue,
564 F.3d 935, 942 (8th Cir. 2009). However, the court “do[es] not reweigh the evidence
presented to the ALJ and [it] defer[s] to the ALJ’s determinations regarding the credibility of
testimony, as long as those determinations are supported by good reason and substantial
evidence.” Renstrom v. Astrue, 680 F.3d 1057, 1064 (8th Cir. 2012) (quoting Gonzales v.
Barnhart, 465 F.3d 890, 894 (8th Cir. 2006)).
“If, after reviewing the record, the court finds it is possible to draw two inconsistent
positions from the evidence and one of those positions represents the ALJ’s findings, the court
must affirm the ALJ’s decision.” Partee v. Astrue, 638 F.3d 860, 863 (8th Cir. 2011) (quoting
Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)). The Eighth Circuit has repeatedly held that
a court should “defer heavily to the findings and conclusions” of the Social Security

12

Administration. Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010); Howard v. Massanari, 255
F.3d 577, 581 (8th Cir. 2001).
IV.

Discussion

Plaintiff asserts that the ALJ’s RFC determination is not supported by substantial
evidence because the ALJ: (1) failed to fully and fairly develop the record; and (2) improperly
discounted Plaintiff’s subjective complaints. Defendant responds that: (1) there was substantial
evidence in the record to support the ALJ’s RFC determination; and (2) the ALJ properly
supported her decision to discount Plaintiff’s subjective complaints.
A. Development of the record
Plaintiff first argues that the ALJ did not adequately develop the record because she
failed to obtain a consultative examination as recommended by DDS and determined, without
supporting medical evidence, that Plaintiff was capable of light work. Defendant responds that
the burden of proving a disability lies with Plaintiff and the record contained sufficient evidence
for the ALJ to determine Plaintiff’s RFC.
“Well-settled precedent confirms that the ALJ bears a responsibility to develop the record
fairly and fully, independent of the claimant’s burden to press his case.” Combs v. Berryhill, 868
F.3d 704, 708 (8th Cir. 2017) (quoting Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010)).
When a critical issue is undeveloped, fully developing the record requires that the ALJ re-contact
a treating or consulting physician. Vossen, 612 F.3d at 1016 (emphasis in original) (quoting
Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004)). The ALJ is only required to order
medical examinations and tests, however, “if the medical records presented to him do not give
sufficient medical evidence to determine whether the claimant is disabled.” Johnson v. Astrue,

13

627 F.3d 316, 320 (8th Cir. 2010) (quoting Barrett v. Shalala, 38 F.3d 1019, 1023 (8th Cir.
1994)).
The ALJ determined that, despite his impairments, Plaintiff retained the RFC to perform
light work with the following limitations: (1) Plaintiff can occasionally stoop, crouch, and climb
ramps and stairs but never ladders, ropes, or scaffolds; (1) Plaintiff can never kneel or crawl; (3)
Plaintiff must avoid concentrated exposure to vibration and hazards such as unprotected heights
and dangerous machinery; and (4) Plaintiff must have an option to sit or stand at his work station
for one to three minutes every hour. (Tr. 33). According to the regulations, “light work” is
generally characterized as “(1) lifting or carrying ten pounds frequently; (2) lifting twenty
pounds occasionally; (3) standing or walking, off and on, for six hours during an eight-hour
workday; (4) intermittent sitting; and (5) using hands and arms for grasping, holding, and turning
objects.”

Johnson v. Berryhill, Case No. 4:16-CV-1455 JMB, 2017 WL 3781731, at *11

(E.D.Mo. Aug. 31, 2017) (quoting Holley v. Massanari, 253 F.3d 1088, 1091 (8th Cir. 2001)).
The sole medical opinion relating to Plaintiff’s capacity to work was that of Nurse
Crabtree, who found that Plaintiff could lift/carry less than ten pounds frequently, ten pounds
occasionally, and twenty pounds rarely. (Tr. 361). She also opined that Plaintiff could: never
twist, stoop, balance, crouch, crawl, or climb; frequently reach and handle; occasionally finger
and feel; sit ten minutes at a time for a total of two-hours in an eight-hour work day; and stand
ten minutes at a time for a total of less than two hours in an eight-hour workday. (Tr. 361).
Nurse Crabtree stated that Plaintiff’s limiting symptoms included: hips “giv[ing] out”;
palpitations; medication causing dizziness, nausea, and weakness; difficulty ambulating; and the
need for a cane. (Tr. 360).

14

The ALJ assigned Nurse Crabtree’s opinion “little weight” because he found it was not
consistent with the findings of Drs. Said and Montgomery, “which include routinely normal
physical examinations and no reports of medication side effects.” (Tr. 36). The ALJ also noted
that, as a nurse practitioner, Nurse Crabtree was “not an acceptable medical source.” (Id.).
Having discounted Nurse Crabtree’s opinion, the ALJ drew her own inferences from
Plaintiff’s medical reports. The ALJ stated that Dr. Montgomery’s “course of treatment was
routine without complications” and his physical examinations were “unremarkable.” (Tr. 34).
Similarly, Dr. Said’s treatment notes generally noted “no acute distress” and normal strength,
gait, and range of motion. (Tr. 35).
Brief notations of “no acute distress” are not particularly significant when considering
chronic conditions such as diabetes mellitus, kidney disease, and obesity. See, e.g., Combs, 868
F.3d at 709.

Furthermore, the relevance of the treating doctors’ unremarkable physical

examinations to Plaintiff’s ability to function in the workplace is unclear. See, e.g., id. Although
Drs. Said and Montgomery regularly noted normal strength, gait, and range of motion, they
likewise consistently diagnosed him with hypertension, hypothyroidism, diabetes mellitus,
diabetic neuropathy, and chronic kidney disease. By relying on her own interpretation of
Plaintiff’s treatment notes, rather than seeking clarification from his medical providers, the ALJ
failed to satisfy her duty to fully and fairly develop the record.
Upon review, the Court finds that the record contains insufficient medical evidence from
which a proper determination of Plaintiff’s functional limitations can be made. On remand, a
formal assessment of Plaintiff’s functional capacities will need to be completed by a physician.

15

B. Credibility
Plaintiff also argues that the ALJ failed to properly analyze his credibility because she did
not address the factors required by Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984). Defendant
counters that the ALJ identified a variety of inconsistencies that weakened Plaintiff’s credibility
and incorporated them into her decision.
Before determining a claimant’s RFC, the ALJ must evaluate the credibility of the
claimant’s subjective complaints. Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007) (citing
Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001)). An ALJ may discredit a claimant's
subjective allegations of disabling symptoms to the extent they are inconsistent with the overall
record as a whole, including: the objective medical evidence and medical opinion evidence; the
claimant's daily activities; the duration, frequency, and intensity of pain; dosage, effectiveness,
and side effects of medications and medical treatment; and the claimant's self-imposed
restrictions. SSR 96–7p. See also Polaski v. Heckler, 739 F.2d at 1322. “If an ALJ explicitly
discredits the claimant’s testimony and gives good reason for doing so, we will normally defer to
the ALJ’s credibility determination.” Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir. 2003)
(citing Russell v. Sullivan, 950 F.2d 542, 545 (8th Cir. 1991)).
In this case, the ALJ found that Plaintiff’s “medically determinable impairments could
reasonably be expected to cause the alleged symptoms; however the claimant’s statements
concerning the intensity, persistence and limiting effects of these symptoms are not entirely
credible[.]” (Tr. 34). The ALJ reasoned that Plaintiff’s “course of treatment has been minimal
and conservative with few observations of signs or symptoms which would prevent him from
performing work related activities.” (Id.). The ALJ then summarized Plaintiff’s medical records,
noting inconsistencies such as several unremarkable exams, doctors’ visits at which Plaintiff did

16

not complain of alleged symptoms, reports of steady gait and full range of motion, reports of
Plaintiff’s “controlled” hypertension and his “stable” kidney disease, and Plaintiff beginning
classes to become a probation officer. (Tr. 34-36). Based on these findings, the ALJ concluded
that “the inconsistencies between the claimant’s allegations and the medical evidence and the
combination of his activities do not enhance his credibility.” (Tr. 36).
Upon review, the Court finds that, in assessing Plaintiff’s credibility, the ALJ discussed
many of the factors set forth in Polaski. See Renstrom, 680 F.3d at 1067. “The ALJ is ‘not
required to discuss methodically each Polaski consideration, so long as he acknowledged and
examined those considerations before discounting a claimant's subjective complaints.’” Partee,
638 F.3d at 865 (quoting Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000)). Because the ALJ’s
determination to discredit Plaintiff’s subjective complaints is supported by good reasons and
substantial evidence, the Court defers to her determination. See e.g., Renstrom, 680 F.3d at 1067;
Gonzales, 465 F.3d at 894.
V.

Conclusion

For the reasons stated above, the Court finds that the ALJ did not base her RFC
determination upon substantial medical evidence and failed to satisfy her duty to fully and fairly
develop the record. Accordingly,
IT IS HEREBY ORDERED that, pursuant to sentence four of 42 U.S.C. § 405(g), the
decision of the Commissioner is REVERSED, and this cause is REMANDED to the
Commissioner for further proceedings consistent with this opinion.

17

A judgment of remand shall accompany this memorandum and order.

PATRICIA L. COHEN
UNITED STATES MAGISTRATE JUDGE

Dated this 2nd day of October, 2017

18