Noah v. Astrue

Filing 19

MEMORANDUM... In sum, the decision of the ALJ finding plaintiff not disabled is not supported by substantial evidence. The ALJ failed to properly assess the credibility of plaintiff's subjective complaints of pain and limitations. The ALJ failed to develop the record by not obtaining necessary medical evidence addressing plaintiff's ability to function in the workplace. The ALJ's assessment of plaintiff's residual functional capacity was not based on substantial medical evide nce in the record thereby producing an erroneous residual functional capacity. The ALJ then posed a hypothetical question to the vocational expert based on this erroneous residual functional capacity. For these reasons, this cause will be reversed an d remanded to the ALJ for further proceedings consistent with this Memorandum. Accordingly, a Judgment of Reversal and Remand will be entered separately in favor of plaintiff in accordance with this Memorandum. Signed by Magistrate Judge Lewis M. Blanton on 9/23/2011. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

CAREY DEAN NOAH,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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Case No. 2:10CV 56 LMB

MEMORANDUM
This is an action under 42 U.S.C. § 405(g) for judicial review of defendant’s final decision
denying the application of Carey Dean Noah for Supplemental Security Income under Title XVI
of the Social Security Act. This case has been assigned to the undersigned United States
Magistrate Judge pursuant to the Civil Justice Reform Act and is being heard by consent of the
parties. See 28 U.S.C. § 636(c). Plaintiff has filed a Brief in Support of the Complaint.
(Document Number 13). Defendant has filed a Brief in Support of the Answer. (Doc. No. 16).
Procedural History
On August 28, 2008, plaintiff filed his application for benefits, claiming that he became
unable to work due to his disabling condition on August 1, 2008. (Tr. 106-11). This claim was
denied initially, and following an administrative hearing, plaintiff’s claim was denied in a written
opinion by an Administrative Law Judge (ALJ), dated November 4, 2009. (Tr. 57, 61-65, 28-35).
Plaintiff then filed a request for review of the ALJ’s decision with the Appeals Council of the
Social Security Administration (SSA), which was denied. (Tr. 6, 5). Thus, the decision of the
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ALJ stands as the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481.
Evidence Before the ALJ
A.

ALJ Hearing
Plaintiff’s administrative hearing was held on October 8, 2009. (Tr. 38). Plaintiff was

present and was represented by counsel. (Id.).
The ALJ examined plaintiff, who testified that he was forty-four years of age and was
married. (Tr. 40). Plaintiff stated that he did not live with his spouse and had not lived with her
for about two years. (Id.). Plaintiff testified that he lived alone. (Id.).
Plaintiff stated that he dropped out of school in the ninth grade because he lived on his
own at the age of fifteen. (Id.). Plaintiff testified that he had not tried to obtain a GED because
he has been working and trying to make a living. (Id.).
Plaintiff stated that he last worked in 1995. (Tr. 41). Plaintiff testified that he worked as
a delivery driver delivering pizza and food. (Id.). Plaintiff stated that he stopped working at this
position because his mother became ill and he took care of her. (Id.). Plaintiff testified that he
had a heart attack a few months after his mother died, in 1999. (Id.).
Plaintiff stated that he had a defibrillator1 implanted in 2001 and that the batteries in the
defibrillator were replaced in 2004 and 2006. (Id.). Plaintiff testified that the defibrillator was
replaced in 2007. (Id.). Plaintiff stated that, at the time of the hearing, the defibrillator was
“trying to push its way out” of his chest. (Id.). Plaintiff testified that his doctors planned to try to

1

An automated implantable cardioverter defibrillator (“AICD”) is a device surgically
implanted, usually in the chest, which continuously monitors a patient’s cardiac activity and
provides the appropriate electrical counter shock, on sensing ominous dysrhythmias. See
Stedman’s Medical Dictionary, 500 (28th Ed. 2006).
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fix it. (Id.). Plaintiff stated that he had been experiencing these problems with the defibrillator
since it was implanted in 2007. (Id.). Plaintiff testified that he knows something is wrong with
the defibrillator because he experiences pain and it is visibly poking out of his skin. (Tr. 42).
Plaintiff stated that the defibrillator was too large when it was installed and it has been working its
way out gradually over time. (Id.). Plaintiff testified that he began experiencing pain about six
months prior to the hearing. (Id.). Plaintiff stated that the defibrillator was working properly as
far as he knew. (Id.). Plaintiff testified that he also has a pace maker. (Id.).
Plaintiff stated that, at the time of the hearing, he was experiencing chest pains, his heart
was “flipping,” and he was a “nervous wreck.” (Id.). Plaintiff testified that he also experienced
blurred vision due to his heart problems. (Id.). Plaintiff stated that he experienced these
symptoms about every day. (Id.). Plaintiff testified that the symptoms occur when he overdoes it,
when he experiences stress, and sometimes simply when he goes to the bathroom. (Tr. 43).
Plaintiff stated that it occasionally takes him three tries to take out the trash because he has to
stop frequently. (Id.). Plaintiff testified that he experiences sharp pains in his chest, pressure, and
shortness of breath. (Id.). Plaintiff stated that he experiences shortness of breath about every
day. (Id.). Plaintiff testified that the shortness of breath lasts ten to twenty minutes and that he
tries to lie down when it starts. (Id.).
Plaintiff stated that he last saw his doctor for his heart condition about six weeks prior to
the hearing, although he was in the process of changing doctors. (Id.). Plaintiff testified that he
had Medicaid benefits. (Id.).
Plaintiff stated that he experiences the sensation that his heart is flipping out four to six
times a week when it is severe. (Tr. 43-44). Plaintiff testified that he has told his doctors about

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this problem and that his doctors have not performed much testing recently. (Tr. 44). Plaintiff
stated that another stent was implanted in April or May of 2009, and that he may have undergone
an echocardiogram around that time. (Id.).
Plaintiff testified that he was taking medications, including Ranitidine,2 Plavix,3 Zetia,4 and
Crestor.5 (Tr. 44-45). Plaintiff stated that he was taking all of his medications as prescribed. (Tr.
45). Plaintiff testified that he experienced side effects from his medications. (Id.). Plaintiff stated
that his medications interfere with his thinking and cause dizziness. (Id.). Plaintiff testified that
the Nitroglycerin6 causes terrible headaches and dizziness. (Id.). Plaintiff stated that he takes
Nitroglycerin about every day. (Id.). Plaintiff testified that he wears a Nitroglycerin patch and
that he experiences headaches as long as the patch is on. (Id.). Plaintiff stated that he puts a
patch on if he experiences chest pain. (Id.). Plaintiff testified that he has been wearing the
patches for about six years. (Tr. 46).
Plaintiff stated that he also experiences back issues. (Tr. 46). Plaintiff testified that he has
not received any treatment for his back problems. (Id.). Plaintiff stated that his back goes out
when he bends over and he is unable to stand back up. (Id.). Plaintiff testified that this typically
lasts for three or four days, but it occasionally lasts up to two weeks. (Id.). Plaintiff stated that

2

Ranitidine is indicated for the treatment of gastric ulcer and GERD. See Physician’s
Desk Reference (PDR), 1672 (63rd Ed. 2009).
3

Plavix is indicated for the treatment of patients with a history of recent MI. See PDR at

928.
4

Zetia is indicated for the treatment of high cholesterol. See PDR at 2157.

5

Crestor is indicated for the treatment of high cholesterol. See PDR at 678.

6

Nitroglycerin is indicated for the prevention of angina pectoris due to coronary artery
disease. See PDR at 2888.
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he has never gone to the emergency room when his back went out. (Id.). Plaintiff testified that
he just recently obtained insurance. (Id.). Plaintiff stated that he has been experiencing back
problems for about fifteen years and that they have not worsened in this time. (Id.).
Plaintiff testified that, in an average day, he tries to do chores and lies down often in
between. (Id.). Plaintiff stated that he is able to wash dishes for about five minutes before he has
to take a break. (Tr. 47). Plaintiff testified that it usually takes him two to three tries to take out
the trash. (Id.). Plaintiff stated that he occasionally has to ask his neighbor to let out his puppies.
(Id.). Plaintiff testified that after washing dishes for five minutes, he runs out of breath, becomes
dizzy, and experiences blurred vision. (Id.).
Plaintiff stated that he experiences blurred vision every day. (Id.). Plaintiff testified that
the blurred vision lasts between ten minutes to all day depending on his heart condition. (Id.).
Plaintiff stated that he drives, although there are days that he does not drive. (Id.).
Plaintiff testified that he does his own shopping. (Id.). Plaintiff stated that he does not do any
yard work. (Id.). Plaintiff testified that he occasionally does laundry. (Id.). Plaintiff stated that
he occasionally cooks. (Id.). Plaintiff testified that when he is unable to cook, he either does not
eat or someone cooks for him. (Tr. 48). Plaintiff stated that he has gone a day without eating
because he is unable to cook. (Id.). Plaintiff’s attorney pointed out that plaintiff was “thin as a
rail.” (Id.).
Plaintiff testified that he smokes a half a package of cigarettes a day. (Id.). Plaintiff stated
that he experiences chest symptoms when he is not active. (Id.). Plaintiff testified that this occurs
several times a week. (Id.). Plaintiff stated that stress triggers his chest symptoms. (Id.).
Plaintiff explained that financial issues and his inability to complete tasks cause him to experience

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stress. (Id.).
Plaintiff testified that he is able to walk one to one-and-a-half blocks on a good day. (Id.).
Plaintiff stated that he is only able to stand for a few minutes. (Tr. 49). Plaintiff testified that,
when he experiences chest issues, he is unable to sit and needs to lie down. (Id.). Plaintiff stated
that he lies down every day for ten minutes to two hours. (Id.). Plaintiff testified that he takes
naps lasting one to two hours about four to five days in an average week. (Id.). Plaintiff stated
that he is unable to lift more than ten pounds due to the wires. (Id.).
Plaintiff’s attorney then examined plaintiff, who testified that he is able to stand about five
minutes. (Id.). Plaintiff stated that he would be able to sit comfortably for five to ten minutes at a
time, for a total of one to two hours in an eight-hour day. (Tr. 50). Plaintiff testified that he
would be able to stand for a total of a half-hour in an eight-hour day. (Id.). Plaintiff stated that
he would be able to walk fifteen to twenty minutes in an eight-hour day. (Id.). Plaintiff testified
that he would spend the remainder of the eight-hour day lying down trying to recover. (Id.).
Plaintiff stated that he experiences nausea. (Id.). Plaintiff testified that he vomits two to
three times a day. (Id.). Plaintiff stated that he has been experiencing nausea since he had his
heart attack. (Id.). Plaintiff testified that he has been vomiting two to three times a day for about
two years. (Tr. 51). Plaintiff stated that he experiences nausea when his heart starts beating hard
and erratically. (Id.).
Plaintiff testified that his hands swell when he tries to walk. (Id.). Plaintiff stated that his
hands usually stay swollen the whole day when this occurs. (Id.). Plaintiff testified that his hands
become stiff when they swell and he is unable to bend his fingers. (Id.). Plaintiff stated that he is
unable to pick up small items when his hands are swollen. (Id.). Plaintiff testified that he is

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unable to open jars, twist a screwdriver, or hold his cane when his hands are swollen. (Id.).
Plaintiff stated that he has been using a cane for about six years. (Id.). Plaintiff testified
that his doctor suggested that he start using a cane when he began falling down and passing out
about six years prior to the hearing. (Tr. 52).
The ALJ re-examined plaintiff, who testified that he worked full-time as a self-employed
delivery driver in 1995. (Id.). Plaintiff stated that he earned tips and that he did not remember
how much he earned hourly. (Id.). Plaintiff testified that he was not sure whether he filed taxes in
1994 or 1995. (Tr. 52-53).
The ALJ then examined vocational expert Ed Pagella, who testified that plaintiff’s past
work as a delivery driver was medium in exertion and unskilled. (Tr. 53-54). The ALJ asked Mr.
Pagella to assume a hypothetical claimant with plaintiff’s education and work history and the
following limitations: capable of performing work at the sedentary exertional level; unable to
climb ladders, ropes or scaffolds; can occasionally climb ramps and stairs; must avoid
concentrated exposure to extreme cold and heat; and must avoid all exposure to heights and work
hazards, including electromagnetic fields and microwaves. (Tr. 54). Mr. Pagella testified that the
hypothetical individual would be unable to perform plaintiff’s past work, but would be capable of
performing work as a hand packer (113,200 positions in the national economy); hand assembler
(106,000 positions in the national economy); and hand sorter (98,000 positions in the national
economy). (Id.).
The ALJ asked Mr. Pagella to assume that the hypothetical claimant experienced
palpitations, which took him off task ten to twenty minutes every day outside of the normal break
schedule. (Id.). Mr. Pagella testified that such an individual would be unable to perform

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substantial gainful activity because employers would not tolerate an extra break every day. (Tr.
55).
Plaintiff’s attorney then examined Mr. Pagella, who testified that a limitation of occasional
reaching, handling, fingering, and feeling would eliminate the job base he identified. (Id.).
B.

Relevant Medical Records
Plaintiff suffered an anterior wall myocardial infarction7 (“MI”) on January 11, 1999. (Tr.

220). A cardiac catheterization8 was performed, which revealed one hundred percent stenosis9 of the
left anterior descending (LAD) artery, which was successfully stented. (Id.). Plaintiff was discharged
from University Hospital of Colorado in Denver on January 19, 1999. (Tr. 230). His discharge
diagnoses were listed as anterior wall MI, pericarditis,10 familial hypercholesterolemia,11 left
ventricular apical thrombus,12 paroxysmal atrial fibrillation,13 and decreased left ventricular function.

7

Heart attack. Stedman’s at 968.

8

Insertion of a catheter into the heart to diagnose and treat heart conditions. See
Stedman’s at 327.
9

Narrowing. Stedman’s at 1832.

10

Inflammation of the pericardium, which is the membrane covering the heart and
beginning of the great vessels. See Stedman’s at 1457.
11

A disorder of high cholesterol that is inherited. The condition begins at birth and can
cause heart attacks at an early age. See Stedman’s at 922.
12

A clot in the top of the left ventricle. See Stedman’s at 1985.

13

Condition in which the normal rhythmic contractions of the cardiac atria are replaced by
rapid irregular twitchings of the muscular wall. Stedman’s at 722-23.
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(Id.).

His discharge medications included Digoxin,14 Plavix, Metoprolol,15 Atorvastatin,16

Coumadin,17 and Lisinopril.18 (Id.).
The record reveals an automated implantable cardioverter-defibrillator (AICD) was implanted
in 2001 at University Hospital in Denver, Colorado. (Tr. 313). The battery was changed twice, in
2004 and 2006. (Id.).
Plaintiff presented to University Hospital in Denver, Colorado for a routine, two-month
evaluation on May 1, 2007. (Tr. 235). Plaintiff reported that he was feeling fairly well and that he
was able to walk approximately three blocks without difficulty. (Id.). Plaintiff indicated that he had
episodes of palpitations,19 occurring one to two times per week associated with nausea and fatigue.
(Id.). Plaintiff was diagnosed with ischemic cardiomyopathy20 and heart failure21 with New York

14

Digoxin is indicated for the treatment of mild to moderate heart failure and for the
treatment of patients with chronic atrial fibrillation. See PDR at 1499.
15

Metoprolol is indicated for the treatment of hypertension, angina pectoris, and heart
failure. See PDR at 668.
16

Atorvastatin is indicated for the prevention of cardiovascular disease. See PDR at 2503.

17

Coumadin is indicated for the treatment of blood clots. See WebMD,
http://www.webmd.com/drugs (last visited September 15, 2011).
18

Lisinopril is indicated for the treatment of hypertension. See PDR at 2088.

19

Forcible or irregular pulsation of the heart, perceptible to the patients, usually with an
increase in frequency or force, with or without irregularity in rhythm. Stedman’s at 1408.
20

Disease of the heart muscle. Stedman’s at 313.

21

Inadequacy of the heart so that as a pump it fails to maintain the circulation of blood,
with the result that congestion and edema develop in the tissues. Resulting clinical syndromes
include shortness of breath, edema, enlarged tender liver, engorged neck veins, and pulmonary
rales. Stedman’s at 699.
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Heart Association Class III symptoms;22 coronary artery disease;23 familial hypercholesterolemia;
paroxysmal atrial fibrillation; tobacco abuse; and depression, which was controlled off of therapy.
(Tr. 236-37).
Plaintiff underwent an echocardiogram at University Hospital in Denver on September 7,
2007, which revealed an ejection fraction24 of 30 to 35 percent. (Tr. 234).
Plaintiff presented to Hannibal Regional Hospital in October 2008 with complaints that his
AICD was beeping. (Tr. 313). Plaintiff complained of decreased exercise tolerance and shortness
of breath, chest pain after climbing a flight of stairs, difficulty breathing on exertion, and irregular
heart beat. (Id.). The assessment of the examining physician was remove and replace AICD. (Tr.
314).
Plaintiff underwent a chest x-ray on October 6, 2008, which revealed no acute process of the
chest. (Tr. 319).
On October 7, 2008, plaintiff’s AICD was replaced with a new AICD due to its coming to
the end of its battery life. (Tr. 317).
Ruth Stoecker, M.D. completed a Physical Residual Functional Capacity Assessment on

22

Patients with Class III symptoms have a marked limitation on physical activity. They are
comfortable at rest, but less-than-ordinary physical activity causes fatigue, heart palpitations,
trouble breathing, or chest pain. See WebMD,
http://www.webmd.com/a-to-z-guides/classification-of-heart-failure-topic-overview (last visited
September 15, 2011).
23

Narrowing of the coronary arteries. See Stedman’s at 554.

24

The ejection fraction is a measurement of the heart’s efficiency and can be used to
estimate the function of the left ventricle. The ejection fraction is the amount of blood pumped
divided by the amount of blood the ventricle contains. A normal ejection fraction is more than 55
percent of the blood volume. See WebMD, http://www.webmd.com/hw-popup/ejection-fraction
(last visited September 15, 2011).
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February 27, 2009. (Tr. 323-28). Dr. Stoecker expressed the opinion that plaintiff was capable of
occasionally and frequently lifting ten pounds, standing or walking at least two hours in an eight-hour
day, sitting a total of about six hours in an eight-hour day, and pushing or pulling an unlimited
amount. (Tr. 324). Dr. Stoecker found that plaintiff could never climb ladders, ropes, or scaffolds;
occasionally climb ramps or stairs; and frequently balance, stoop, kneel, crouch, and crawl. (Tr. 326).
Dr. Stoecker indicated that plaintiff had no manipulative, visual, or communicative limitations. (Id.).
Dr. Stoecker found that plaintiff should avoid all exposure to hazards, including machinery and
heights; and should avoid concentrated exposure to extreme cold and heat. (Tr. 327).
Plaintiff presented to Hannibal Regional Hospital on March 19, 2009, with complaints of chest
pain and shortness of breath. (Tr. 366). Plaintiff also reported malaise, a cough, and tingling in his
hands and feet. (Tr. 367). Plaintiff indicated that the shortness of breath occurs after he exerts
himself. (Id.). Plaintiff stated that he may have “over done it” after spending the day running errands
and keeping appointments in St. Louis. (Tr. 368). Plaintiff underwent chest x-rays, which revealed
old granulomatous disease,25 AICD in place, and no evidence of heart failure or pneumonia. (Tr.
375). Plaintiff was diagnosed with shortness of breath and numbness/tingling, and was discharged
to home. (Tr. 376).
Plaintiff presented to the Hannibal Regional Medical Group Cardiovascular Institute for a
follow-up exam on March 26, 2009, at which time he reported that his condition was “no better, no
worse.” (Tr. 339). Plaintiff complained of chest pain, difficulty breathing on exertion, and irregular
heart beat and palpitations. (Tr. 340).

25

A congenital defect in the killing of bacteria which results in increased susceptibility to
severe infection by microorganisms. See Stedman’s at 553.
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Plaintiff presented to Hannibal Regional Hospital on April 2, 2009, with complaints of an
increase in episodes of exertional shortness of breath and chest pain. (Tr. 335). Plaintiff reported
smoking a package of cigarettes a day. (Tr. 336). Plaintiff was admitted for diagnostic cardiac
catheterization. (Id.). Plaintiff underwent cardiac catheterization on that date, which revealed 80 to
90 percent in-stent restenosis26 in the left anterior descending artery and a left ventricular ejection
fraction of 35 percent. (Tr. 333). Plaintiff also underwent angioplasty27 with the insertion of a stent.
(Tr. 433). Pervez Alvi, M.D. discharged plaintiff to home on April 3, 2009, and strongly advised
him to stop smoking. (Tr. 333). Plaintiff’s discharge diagnoses were: exertional angina,28 coronary
artery disease, ischemic cardiomyopathy, left ventricular apical aneurysm,29 and chronic tobacco
abuse. (Id.).
Plaintiff presented to Dr. Alvi for a follow-up on April 17, 2009, at which time plaintiff
reported that he was feeling better. (Tr. 400). Plaintiff was still smoking one half package of
cigarettes a day despite recommendations to stop smoking. (Id.). Plaintiff continued to report chest
pain, difficulty breathing on exertion, and irregular heart beat and palpitations. (Tr. 401). Dr. Alvi
continued plaintiff’s medications and advised him to stop smoking. (Tr. 402).
Plaintiff presented to the emergency department at Hannibal Regional Hospital on May 1,

26

Recurrence of stenosis after corrective surgery on the heart valve. See Stedman’s at

27

An operation for enlarging the narrowed lumen of a coronary artery. See Stedman’s at

28

A severe, often constricting pain or sensation of pressure. Stedman’s at 85.

1678.
88.

29

Thinning, stretching, and bulging of a weakened ventricular wall, usually as a result of
MI. Stedman’s at 84.
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2009, with complaints of epistaxis.30 (Tr. 490). Plaintiff was transferred to University of Missouri
on May 4, 2009, for further evaluation and treatment. (Tr. 492, 442). Plaintiff reported that the
bleeding was mostly from the left side of his nose. (Tr. 442). He denied any chest pain, shortness
of breath, nausea, vomiting, or lightheadedness. (Id.). The examining physician noted that the
bleeding was not very brisk at his initial examination and had resolved by the time the evaluation
ended. (Tr. 444). Plaintiff was admitted overnight for observation and did not have any re-bleeding.
(Tr. 446). Plaintiff was discharged on May 5, 2009, and was instructed to restart aspirin and Plavix,
and stop Coumadin. (Id.).
Plaintiff presented to Dr. Alvi for a follow-up on July 14, 2009. (Tr. 468). Plaintiff reported
feeling fine, although he occasionally experienced palpitations and sharp left chest pains. (Id.).
Plaintiff was smoking two to three cigarettes a day. (Id.). Plaintiff underwent an EKG, which
revealed a normal sinus rhythm and an old anterlateral MI. (Tr. 470). Plaintiff’s AICD was checked.
(Id.). Dr. Alvi noted that clinically, plaintiff was doing well. (Id.). He continued plaintiff’s
medications and recommended that plaintiff follow-up in three months. (Id.).
The ALJ’s Determination
The ALJ made the following findings:
1.

The claimant has not engaged in substantial gainful activity since August 26,
2008, the application date (20 CFR 416.971 et seq.).

2.

The claimant has the following severe impairments: cardiomyopathy and ischemic
heart disease (20 CFR 416.920(c)).

3.

The claimant does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20 CFR Part 404,
Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).

30

Bleeding from the nose. Stedman’s at 658.
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4.

After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform sedentary work as defined
in 20 CFR 416.967(a) except that the claimant can only occasionally climb ramps
and stairs, may never climb ladders, ropes, or scaffolds, must avoid concentrated
exposure to extreme cold and heat, and must avoid all heights and work hazards,
which include electromagnetic fields and microwaves.

5.

The claimant has no past relevant work (20 CFR 416.965).

6.

The claimant was born on January 25, 1965 and was 43 years old, which is
defined as a younger individual age 18-44, on the date the application was filed
(20 CFR 416.963).

7.

The claimant has a marginal education and is able to communicate in English (20
CFR 416.964).

8.

Transferability of job skills is not an issue because the claimant does not have past
relevant work (20 CFR 416.968).

9.

Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the claimant can perform (20 CFR 416.969 and 416.969(a)).

10.

The claimant has not been under a disability, as defined in the Social Security Act,
since August 26, 2008, the date the application was filed (20 CFR 416.920(g)).

(Tr. 30-34).
The ALJ’s final decision reads as follows:
Based on the application for supplemental security income filed on August 26, 2008, the
claimant is not disabled under section 1614(a)(3)(A) of the Social Security Act.
(Tr. 35).

Discussion
A.

Standard of Review
Judicial review of a decision to deny Social Security benefits is limited and deferential to

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the agency. See Ostronski v. Chater, 94 F.3d 413, 416 (8th Cir. 1996). The decision of the SSA
will be affirmed if substantial evidence in the record as a whole supports it. See Roberts v. Apfel,
222 F.3d 466, 468 (8th Cir. 2000). Substantial evidence is less than a preponderance, but enough
that a reasonable mind might accept it as adequate to support a conclusion. See Kelley v.
Callahan, 133 F.3d 583, 587 (8th Cir. 1998). If, after review, it is possible to draw two
inconsistent positions from the evidence and one of those positions represents the Commissioner’s
findings, the denial of benefits must be upheld. See Robinson v. Sullivan, 956 F.2d 836, 838 (8th
Cir. 1992). The reviewing court, however, must consider both evidence that supports and
evidence that detracts from the Commissioner’s decision. See Johnson v. Chater, 87 F.3d 1015,
1017 (8th Cir. 1996) (citing Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)). “[T]he court
must also take into consideration the weight of the evidence in the record and apply a balancing
test to evidence which is contrary.” Burress v. Apfel, 141 F.3d 875, 878 (8th Cir. 1998). The
analysis required has been described as a “searching inquiry.” Id.
B.

The Determination of Disability
The Social Security Act defines disability as the “inability to engage in any substantial

gainful activity by reason of any medically determinable physical or mental impairment which can
be expected to result in death or has lasted or can be expected to last for a continuous period of
not less than 12 months.” 42 U.S.C. § 416 (I) (1) (a); 42 U.S.C. § 423 (d) (1) (a). The claimant
has the burden of proving that s/he has a disabling impairment. See Ingram v. Chater, 107 F.3d
598, 601 (8th Cir. 1997).
The SSA Commissioner has established a five-step process for determining whether a
person is disabled. See 20 C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 141-

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42, 107 S. Ct. 2287, 2291, 96 L. Ed. 2d. 119 (1987); Fines v. Apfel, 149 F.3d 893, 894-895 (8th
Cir. 1998). First, it is determined whether the claimant is currently engaged in “substantial gainful
employment.” If the claimant is, disability benefits must be denied. See 20 C.F.R. §§ 404.1520,
416.920 (b). Step two requires a determination of whether the claimant suffers from a medically
severe impairment or combination of impairments. See 20 C.F.R §§ 404.1520 (c)), 416.920 (c)).
To qualify as severe, the impairment must significantly limit the claimant’s mental or physical
ability to do “basic work activities.” Id. Age, education and work experience of a claimant are
not considered in making the “severity” determination. See id.
If the impairment is severe, the next issue is whether the impairment is equivalent to one of
the listed impairments that the Commissioner accepts as sufficiently severe to preclude substantial
gainful employment. See 20 C.F.R. §§ 404.1520 (d), 416.920 (d). This listing is found in
Appendix One to 20 C.F.R. 404. 20 C.F.R. pt. 404, subpt. P, App. 1. If the impairment meets or
equals one of the listed impairments, the claimant is conclusively presumed to be impaired. See
20 C.F.R. §§ 404.1520 (d), 416.920 (d). If it does not, however, the evaluation proceeds to the
next step which inquires into whether the impairment prevents the claimant from performing his
or her past work. See 20 C.F.R. § 404.1520 (e), 416.920 (e). If the claimant is able to perform
the previous work, in consideration of the claimant’s residual functional capacity (RFC) and the
physical and mental demands of the past work, the claimant is not disabled. See id. If the
claimant cannot perform his or her previous work, the final step involves a determination of
whether the claimant is able to perform other work in the national economy taking into
consideration the claimant’s residual functional capacity, age, education and work experience.
See 20 C.F.R. §§ 404.1520 (f), 416.920 (f). The claimant is entitled to disability benefits only if

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s/he is not able to perform any other work. See id. Throughout this process, the burden remains
upon the claimant until s/he adequately demonstrates an inability to perform previous work, at
which time the burden shifts to the Commissioner to demonstrate the claimant’s ability to perform
other work. See Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998).
C.

Plaintiff’s Claims
Plaintiff first argues that the ALJ erred in determining plaintiff’s residual functional

capacity. Plaintiff next argues that the ALJ erred in assessing the credibility of plaintiff’s
subjective complaints. Plaintiff also argues that the ALJ failed to discuss the opinions of
plaintiff’s friends. Plaintiff finally argues that the hypothetical question posed to the vocational
expert was erroneous and that the ALJ failed to properly consider the vocational expert’s
testimony. The undersigned will discuss plaintiff’s claims in turn, beginning with the ALJ’s
credibility analysis.
1.

Credibility Analysis
Plaintiff argues that the ALJ erroneously found his subjective complaints of pain and

limitation not credible. Specifically, plaintiff contends that the ALJ did not perform a credibility
analysis and did not explain why she found plaintiff’s complaints not credible. Defendant
contends that the ALJ properly applied the Polaski factors and found that plaintiff’s subjective
complaints were not credible.
“While the claimant has the burden of proving that the disability results from a medically
determinable physical or mental impairment, direct medical evidence of the cause and effect
relationship between the impairment and the degree of claimant’s subjective complaints need not
be produced.” Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984) (quoting settlement

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agreement between Department of Justice and class action plaintiffs who alleged that the
Secretary of Health and Human Services unlawfully required objective medical evidence to fully
corroborate subjective complaints). Although an ALJ may reject a claimant’s subjective
allegations of pain and limitation, in doing so the ALJ “must make an express credibility
determination detailing reasons for discrediting the testimony, must set forth the inconsistencies,
and must discuss the Polaski factors.” Kelley, 133 F.3d at 588. Polaski requires the
consideration of: (1) the claimant’s daily activities; (2) the duration, frequency, and intensity of
the pain; (3) aggravating and precipitating factors; (4) dosage, effectiveness and side effects of the
medication; and (5) functional restrictions. Polaski, 739 F.2d at 1322. See also Burress, 141
F.3d at 880; 20 C.F.R. § 416.929.
In this case, the ALJ concluded that plaintiff’s testimony at the hearing was “somewhat
credible,” but stated that, to the extent plaintiff’s testimony regarding the effects of his physical
impairment on his basic work activities conflicted with the evidence of record, she was rejecting
those inconsistent statements. (Tr. 33). Specifically, the ALJ stated that she was giving “little
weight” to plaintiffs’ testimony regarding his “extreme limitations” in sitting, standing, and
walking, as they were unsupported by any medical opinion evidence or treatment notes. (Id.).
The undersigned finds that the ALJ’s credibility determination regarding plaintiff’s
subjective complaints of pain and limitations is not supported by substantial evidence in the record
as a whole. The ALJ did not cite the Polaski factors in her decision and did not undertake an
analysis of the relevant factors. Although the ALJ discussed plaintiff’s testimony regarding his
limitations and the side effects of his medications, the ALJ did not explain how this testimony was
inconsistent with the record. The ALJ did not indicate that plaintiff’s testimony regarding his

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daily activities was inconsistent with his subjective complaints of limitations.
The ALJ appeared to base her credibility determination on the objective medical record.
While this is a factor upon which the ALJ may rely, it may not be solely relied upon by an ALJ to
discredit a plaintiff’s subjective complaints. See Curran-Kicksey v. Barnhart, 315 F.3d 964, 968
(8th Cir. 2003). The ALJ summarized the medical evidence of record but did not explain how this
evidence was inconsistent with plaintiff’s testimony. In fact, the evidence discussed by the ALJ
tended to support plaintiff’s subjective complaints. The evidence revealed plaintiff consistently
complained of shortness of breath, chest pain, and palpitations. After summarizing this evidence,
the ALJ indicated that she was assigning “great weight” to the physical residual functional
capacity assessment of state agency medical consultant Dr. Ruth Stoecker. (Tr. 33). As such, the
ALJ appeared to discredit plaintiff’s subjective complaints based solely on the findings of a state
agency physician who did not examine plaintiff.
Plaintiff also argues that the ALJ erred in failing to mention the opinions of plaintiff’s
friends, Sonny Memanigal and Carolyn Boston. The ALJ must give full consideration to evidence
presented relating to observations by third parties. Polaski, 739 F.3d at 1322. Although specific
articulation of credibility determinations is preferable, lack thereof does not require reversal when
the ultimate finding is supported by substantial evidence on the record. Young v. Apfel, 221 F.3d
1065, 1068 (8th Cir. 2000). When the same evidence supports discounting a third party’s
testimony, an ALJ’s failure to give specific reasons for disregarding such testimony is
inconsequential. Id.
Mr. Memanigal and Ms. Boston each completed and submitted questionnaires regarding
plaintiff. (Tr. 178-81; 19-22). The ALJ did not discuss either. Both statements corroborated

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plaintiff’s allegations of lack of energy and strength, inability to do chores, and use of a cane.
(Id.). There is no indication as to whether or not the ALJ considered the statements of Mr.
Memanigal and Ms. Boston. Without even mentioning the statements, it is impossible to tell
whether the ALJ gave these third-party observations the full consideration they deserved. See
Polaski, 739 F.3d at 1322.
In conclusion, the ALJ failed to give good reasons for discrediting plaintiff’s complaints.
As such, the ALJ’s credibility analysis is lacking. The ALJ also failed to properly consider the
third party statements of Sonny Memanigal and Carolyn Boston. Accordingly, the undersigned
will order that the decision of the Commissioner be reversed and this cause be remanded for a
more thorough and accurate evaluation of plaintiff’s subjective complaints of pain and limitations.
Upon remand, the ALJ should also consider the third party statements of Mr. Memanigal and Ms.
Boston, and any other such information submitted upon rehearing.
2.

Residual Functional Capacity
Plaintiff argues that the ALJ erred in determining his residual functional capacity.

Specifically, plaintiff contends that the ALJ relied on the opinion of a state agency physician and
omitted medical evidence that supported a more restrictive residual functional capacity.
The ALJ made the following determination regarding plaintiff’s residual functional
capacity:
After careful consideration of the entire record, the undersigned finds that the claimant
has the residual functional capacity to perform sedentary wok as defined in 20 CFR
416.967(a) except that the claimant can only occasionally climb ramps and stairs, may
never climb ladders, ropes, or scaffolds, must avoid concentrated exposure to extreme
cold and heat, and must avoid all heights and work hazards, which include
electromagnetic fields and microwaves.
(Tr. 30-31).
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Determination of residual functional capacity is a medical question and at least “some
medical evidence ‘must support the determination of the claimant’s [residual functional capacity]
and the ALJ should obtain medical evidence that addresses the claimant’s ability to function in the
workplace.’” Hutsell v. Massanari, 259 F.3d 707, 712 (8th Cir. 2001) (quoting Lauer v. Apfel,
245 F.3d 700, 704 (8th Cir. 2001)). Further, determination of residual functional capacity is
“based on all the evidence in the record, including ‘the medical records, observations of treating
physicians and others, and an individual’s own description of his limitations.’” Krogmeier v.
Barnhart, 294 F.3d 1019, 1024 (8th Cir. 2002) (quoting McKinney v. Apfel, 228 F.3d 860, 863
(8th Cir. 2000)). Similarly, in making a finding of residual functional capacity, an ALJ may
consider non-medical evidence, although the residual functional capacity finding must be
supported by some medical evidence. See Lauer, 245 F.3d at 704.
In the instant case, the undersigned finds that the ALJ’s assessment of residual functional
capacity is not supported by substantial evidence. In her opinion, the ALJ acknowledged that the
only evidence in the record regarding plaintiff’s functional limitations consisted of the opinion of
the non-examining state agency physician. (Tr. 33). The opinion of a consulting physician who
does not examine the claimant does not generally constitute substantial evidence. See Singh v.
Apfel, 222 F.3d 448, 452 (8th Cir. 2000); Kelley, 133 F.3d at 589.
Dr. Ruth Stoecker completed a Physical Residual Functional Capacity Assessment on
February 27, 2009. (Tr. 323-28). Dr. Stoecker expressed the opinion that plaintiff was capable
of occasionally and frequently lifting ten pounds, standing or walking at least two hours in an
eight-hour day, sitting a total of about six hours in an eight-hour day, and pushing or pulling an
unlimited amount. (Tr. 324). Dr. Stoecker found that plaintiff could never climb ladders, ropes,
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or scaffolds; occasionally climb ramps or stairs; and frequently balance, stoop, kneel, crouch, and
crawl. (Tr. 326). Dr. Stoecker indicated that plaintiff had no manipulative, visual, or
communicative limitations. (Id.). Dr. Stoecker found that plaintiff should avoid all exposure to
hazards, including machinery and heights; and should avoid concentrated exposure to extreme
cold and heat. (Tr. 327).
The ALJ stated that she was assigning “great weight” to Dr. Stoecker’s opinion because
Dr. Stoecker examined plaintiff’s records thoroughly, is a disability expert familiar with the SSA’s
policies, and her conclusions are “generally consistent with” the medical evidence of record. (Tr.
33). Significantly, although the ALJ claims that Dr. Stoecker’s opinion is consistent with the
objective medical evidence, none of plaintiff’s treating physicians have expressed an opinion
regarding plaintiff’s functional limitations.
The record reveals that plaintiff was diagnosed with ischemic cardiomyopathy and heart
failure with New York Heart Association Class III symptoms, and coronary artery disease on May
1, 2007. (Tr. 236-37). Plaintiff complained of palpitations associated with nausea and fatigue.
(Tr. 235). Plaintiff had an ejection fraction of 30 to 35 percent on September 7, 2007. (Tr. 234).
In October 2008, plaintiff complained of decreased exercise tolerance, shortness of breath, chest
pain, difficulty breathing on exertion, and irregular heart beat. (Tr. 313). On March 19, 2009,
plaintiff presented to Hannibal Regional Hospital with complaints of chest pain, shortness of
breath, malaise, and tingling in his hands and feet. (Tr. 366-67). Plaintiff complained of chest
pain, difficulty breathing on exertion, and irregular heart beat and palpitations at a March 26,
2009 follow-up exam. (Tr. 340). On April 2, 2009, plaintiff reported an increase in episodes of
exertional shortness of breath and chest pain. (Tr. 335). Plaintiff underwent cardiac

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catheterization, which revealed 80 to 90 percent in-stent restenosis in the LAD and a left
ventricular ejection fraction of 35 percent. (Tr. 333). Plaintiff continued to complain of chest
pain, difficulty breathing on exertion, and irregular heart beat and palpitations on April 17, 2009.
(Tr. 401). Plaintiff was treated for a severe episode of epistaxis from May 1, 2009, through May
5, 2009. (Tr. 490, 446). At a follow-up with Dr. Alvi on July 14, 2009, plaintiff continued to
complain of palpitations and chest pains. (Tr. 468).
The medical record reveals that plaintiff has sought regular treatment for his heart
impairments since his alleged onset date. Plaintiff has consistently complained of chest pain,
difficulty breathing on exertion and irregular heart beat with palpitations. Dr. Stoecker rendered
her opinion in February 2009 based upon a review of the record. As such, Dr. Stoecker did not
have the benefit of a significant amount of medical evidence dated after that time. This evidence
reveals that plaintiff continued to complain of significant symptoms due to his heart impairments.
Plaintiff takes numerous prescription medications to control these symptoms. Plaintiff
testified that these medications cause side effects, including mental difficulties, dizziness, and
headaches. (Tr. 44-45). Plaintiff testified that he must lie down when he experiences chest
symptoms and is unable to sit. (Tr. 49). Plaintiff’s serious heart impairments could reasonably be
expected to produce the symptoms and limitations plaintiff described and the undersigned has
found that the ALJ erred in discrediting plaintiff’s subjective complaints. Dr. Stoecker’s opinion
did not take into consideration plaintiff’s testimony regarding his limitations. Thus, Dr.
Stoecker’s opinion does not constitute substantial evidence in support of the ALJ’s residual
functional capacity determination.
An ALJ has a duty to obtain medical evidence that addresses the claimant’s ability to

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function in the workplace. See Hutsell, 259 F.3d at 711-712; Nevland v. Apfel, 204 F.3d 853,
858 (8th Cir. 2000). In this case, the ALJ’s residual functional capacity fails Lauer’s test that the
residual functional capacity be supported by some medical evidence. See Lauer, 245 F.3d at 703.
As such, the ALJ failed to properly develop the record by not obtaining necessary medical
evidence addressing plaintiffs ability to function in the workplace. Without such medical evidence
addressing plaintiff’s ability to function in the workplace, the ALJ cannot make an informed
decision about plaintiff’s functional restrictions. As explained above, due to this omission, the
ALJ has assessed a residual functional capacity which is not based on substantial medical evidence
in the record.
After determining plaintiff’s residual functional capacity, the ALJ then found that plaintiff
could perform other jobs that exist in significant numbers in the national economy. (Tr. 34). The
undersigned has found that the residual functional capacity formulated by the ALJ was not
supported by substantial evidence. The hypothetical question posed to the vocational expert was
based on this erroneous residual functional capacity. As such, the ALJ’s step five determination
was similarly not supported by substantial evidence
Conclusion
In sum, the decision of the ALJ finding plaintiff not disabled is not supported by
substantial evidence. The ALJ failed to properly assess the credibility of plaintiff’s subjective
complaints of pain and limitations. The ALJ failed to develop the record by not obtaining
necessary medical evidence addressing plaintiff’s ability to function in the workplace. The ALJ’s
assessment of plaintiff’s residual functional capacity was not based on substantial medical
evidence in the record thereby producing an erroneous residual functional capacity. The ALJ then

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posed a hypothetical question to the vocational expert based on this erroneous residual functional
capacity. For these reasons, this cause will be reversed and remanded to the ALJ for further
proceedings consistent with this Memorandum. Accordingly, a Judgment of Reversal and
Remand will be entered separately in favor of plaintiff in accordance with this Memorandum.

Dated this 23rd

day of September, 2011.

LEWIS M. BLANTON
UNITED STATES MAGISTRATE JUDGE

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