Britton v. Astrue

Filing 20

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED and that this case is REMANDED for further proceedings as discussed above. An appropriate Order of Remand shall accompany this Memorandum and Order. Signed by Magistrate Judge Thomas C. Mummert, III on September 23, 2013. (BRP)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
PAMELA J. BRITTON,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,1
Defendant.

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Case number 2:12cv0064 TCM

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) for judicial review of the final decision of
Carolyn W. Colvin, the Acting Commissioner of Social Security (Commissioner), denying the
application of Pamela J. Britton for disability insurance benefits (DIB) under Title II of the
Social Security Act (the Act), 42 U.S.C. § 401-433. For the reasons set forth below, the Court2
finds that remand is required.
Procedural History
Pamela Britton (Plaintiff) applied for DIB in March 2009,3 alleging she had become
disabled on August 3, 2004, by herniated discs in her back, a hearing loss, and a pinched

1

Carolyn W. Colvin became the Acting Commissioner of Social Security in February 2013 and
is hereby substituted for Michael J. Astrue as defendant. See 42 U.S.C. § 405(g).
2

The case is before the undersigned United States Magistrate Judge by written consent of the
parties. See 28 U.S.C. § 636(c).
3

An earlier application alleging a disability onset date of August 3, 2004, was denied on
January 29, 2009, following an administrative hearing. On judicial review, the adverse decision of the
Commissioner was affirmed. See Britton v. Astrue, No. 2:09cv50 MLM (E.D. Mo. Sept. 24, 2010).

sciatic nerve. (R.4 at 143-49, 183.) Her application was denied initially and following an
August 2010 hearing before Administrative Law Judge (ALJ) Joseph P. Donovan, Sr. (Id. at
11-23, 39-79, 93.) The Appeals Council denied Plaintiff's request for review, effectively
adopting the ALJ's decision as the final decision of the Commissioner. (Id. at 1-3.)
Testimony Before the ALJ
Plaintiff, represented by counsel; James J. Radke, M.Ed., C.R.C.,5 and L.P.C.6; and
James M. McKenna, M.D., testified at the administrative hearing.
Plaintiff amended her alleged disability onset date to be January 29, 2009, the date of
the previous ALJ's unfavorable decision.7 (Id. at 48.)
Plaintiff has an unrestricted driver's license, and last drove the day before. (Id. at 4445.) She is 5 feet 2½ inches tall and weighs 232 pounds. (Id. at 49.) She smokes one pack
of cigarettes a day. (Id. at 49-50.)
Plaintiff last worked as a security guard. (Id. at 60.) This job required that she sit half
the time and stand half the time. (Id. at 61.) She worked as a sales clerk for Wal-Mart and as
a finisher at a cloth manufacturer; both jobs primarily required standing. (Id.) Her job as a
machine operator for an electronic parts manufacturer primarily involved sitting. (Id.)

4

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

answer.
5

Certified Rehabilitation Counselor.

6

Licensed Professional Counselor.

7

See note 3, supra.
-2-

Plaintiff testified that she can sit for approximately an hour, stand for no longer than
twenty minutes, and walk no farther than fifty feet. (Id. at 57.) She cannot crouch or crawl.
(Id.) She can reach out and raise her right arm, but not her left arm. (Id.) The most she can
lift is five pounds. (Id. at 58.) She uses a prescribed cane "quite a bit." (Id.) She has had
bronchial problems all her life. (Id. at 60.) Exposure to fumes, odors, dusts, and gases causes
her problems. (Id. at 61.) Exposure to cigarette smoke also causes her problems, although she
smokes a pack a day. (Id. at 61-62.)
Dr. McKenna testified that Plaintiff is considered morbidly obese. (Id. at 49.) He
opined that she has smoker's bronchitis. (Id. at 50.) The limitations in her ability to walk are
attributable more to her back problems than to her respiratory problem. (Id.) She also has a
history of tinnitus and headaches. (Id. at 51.) None of these impairments satisfy a listing,
"[e]specially after the curative surgery." (Id. at 51-52.) Her degenerative scoliosis was
corrected by surgery. (Id. at 52-53.)
Dr. McKenna further testified that there was "probably a basis" for the residual
functional capacity assessment by a physician,8 see pages 16 to 19, infra, but not for the
limitation of three hours for sitting. (Id. at 55-56.) Instead, he thought a sit-stand option was
appropriate. (Id. at 63, 64.) Climbing ladders, ropes, or scaffolds; being exposed to
unprotected heights; and being on irregular terrain would be precluded. (Id. at 56.) She
should only rarely do such things as "chronic stooping." (Id.) Dr. McKenna also disagreed

8

Although the ALJ referred to the assessment as being done by a consulting examiner, there
is no indication of the role of the physician, Dr. Halma, who completed the assessment at issue.
-3-

with the physician's limitation of Plaintiff's ability to manipulate. (Id. at 67.) He found that
limitation to have no support in the record. (Id.) He testified that he could find no basis for
other limitations imposed by Plaintiff's primary care physician, see page 20, infra, including
a complete prohibition on bending and stooping. (Id.)
Mr. Radke, testifying as a vocational expert (VE), characterized Plaintiff's food
preparation job, Dictionary of Occupational Titles (DOT) 311.472-020, as light and unskilled
with a specific vocational preparation (SVP) level9 of 2; as a cashier, DOT 211.46-010, as light
and unskilled with an SVP of 2; as a gambling attendant, DOT 342.657-010, as light and semiskilled with an SVP of 3; as a machine operator in an electronics plant, DOT 619.682-062, as
medium and semi-skilled with an SVP of 3; and as a postal clerk, DOT 209.687-026, as
unskilled with an SVP of 2. (Id. at 70.) With all but the postal clerk position, the exertional
level was the same in the DOT definition as it was actually performed. (Id.) The postal clerk
position was light as defined in the DOT and medium as performed. (Id.)
Mr. Radke was then asked by the ALJ to assume a hypothetical person who required
a sit-stand option at will; who could lift and carry eight pounds frequently and ten pounds
occasionally; who could sit, stand, or walk for six hours in an eight-hour day; who could
frequently use leg controls, feel, finger, and handle objects; who could not reach overhead with
the left arm, but could frequently reach overhead with the right arm; who could frequently
9

"The SVP level listed for each occupation in the DOT connotes the time needed to learn the
techniques, acquire the information, and develop the facility needed for average work performance.
At SVP level one, an occupation requires only a short demonstration, while level two covers
occupations that require more than a short demonstration but not more than one month of vocational
preparation. 2 Dictionary of Occupational Titles [DOT] app. C at 1009 (4th ed. 1991)." Hulsey v.
Astrue, 622 F.3d 917, 923 (8th Cir. 2010).
-4-

climb ramps and stairs, but never climb ladders, ropes, and scaffolds; who could frequently
balance; who could only occasionally stoop; and who could not kneel, crouch, or crawl. (Id.
at 70-71.) This person also could remember, understand, and carry out simple, repetitive tasks
with attention and concentration for extended periods. (Id. at 71-72.) She could interact
appropriately with the public, supervisors, and co-workers, and could respond to changes in
the work setting. (Id. at 72.) The time off-task and the loss of productivity would be five
percent. (Id.) She should avoid concentrated exposure to noise, height, pitch, frequencies,
extreme heat and cold, unprotected heights, and hazardous moving machinery. (Id.) She was
approximately forty-seven years old, had a twelfth grade education, and could read, write, and
understand English. (Id.) Asked if this hypothetical person could perform Plaintiff's past
relevant work, Mr. Radke replied that she could not. (Id.)
She could, however, work as a receptionist, a general office clerk, and an order clerk.
(Id. at 73-74.)
Plaintiff's counsel asked Mr. Radke about a hypothetical claimant who needed to be
able to leave her work station "for some period of time" in order to walk or lie down to relieve
back pain. (Id. at 74-75.) He replied that this requirement, particularly the need to lie down,
"would have a significant impact on the available jobs." (Id. at 75.) If this person needed only
to walk around within ten to fifteen feet of her station, but was still off-task for only five
percent of the time, it would have no impact; however, if the time off-task was twelve to fifteen
percent of the time, it would have a "very significant negative impact" on her ability to sustain
employment. (Id.) The determining line was ten percent. (Id. at 76.)

-5-

If the hypothetical person could not sit for more than a total of three hours at a
sedentary job, she would not be employable at the sedentary level. (Id.) Nor would the person
be employable at the sedentary level if she could lift no more than five pounds occasionally
and no weight frequently. (Id. at 77.)
Medical and Other Records Before the ALJ
The documentary record before the ALJ included forms completed as part of the
application process, documents generated pursuant to Plaintiff's application, records from
health care providers, and four assessments of her physical capabilities.
When applying for DIB, Plaintiff completed a Disability Report. (Id. at 182-89.) She
was 5 feet 2 inches tall and weighed 230 pounds. (Id. at 182.) Her impairments, see pages one
to two, supra, limit her ability to work by causing her constant back pain. (Id. at 183.) She is
taking narcotic, addictive pain medication, and is unable to drive. (Id.) She does not sleep
well; has limited mobility; has to frequently change positions; and can not lift anything. (Id.)
She is depressed because of her health problems. (Id.) These impairments first bothered her
in 2003 and caused her to be unable to work on August 3, 2004. (Id.) After trying different
jobs, she stopped working on October 18, 2006, because the pain was unbearable. (Id.) She
takes Cymbalta for her depression; hydrocodone for pain; and Nexium for stomach problems.
(Id. at 187.) She graduated from the twelfth grade, and had not been in special education
classes. (Id. at 188.)
Asked to describe on a Function Report what she does during the day, Plaintiff reported
that, after getting up, she gets her daughter off to school, takes her medication, and sits on her

-6-

bed to put on her clothes. (Id. at 198-205.) Her husband does the cooking. (Id. at 198.) She
takes pain pills four times a day. (Id.) She helps her daughter with her homework; her
daughter helps her with preparing meals. (Id. at 199.) Before her impairments, Plaintiff was
able to mow, lift, plant flowers, and swim. (Id.) Because of constant pain, she gets up in the
middle of the night. (Id.) She sits to dress, and does other personal hygiene tasks by herself.
(Id.) She sometimes has to be reminded by her husband or daughter whether she has taken her
medication. (Id. at 200.) She prepares fast, easy meals. (Id.) She needs help when doing
housework. (Id.) When she shops for groceries, she buys only things that are not heavy, e.g.,
bread or a gallon of milk. (Id. at 201.) The shopping trips are once a week and last only
twenty minutes. (Id.) She drives, but not far. (Id.) Her only hobby is watching television.
(Id. at 202.) She visits with people over the telephone or when they come to see her. (Id.) Her
impairments adversely affect her abilities to lift, squat, bend, stand, walk, sit, kneel, hear, climb
stairs, remember, complete tasks, and concentrate. (Id. at 203.) They do not affect her
abilities to reach, use her hands, understand, or follow instructions. (Id.) She can not lift more
than ten pounds. (Id.) She cannot walk farther than one block before having to stop and rest
for thirty minutes. (Id.) She does not get along well with bosses or some teachers. (Id. at
204.) She does not handle stress or changes in routine well. (Id.) She marked the box labeled
"Yes" in response to the question whether she had ever been fired or laid off from a job
because of problems getting along with other people. (Id.)
Plaintiff completed a Disability Report – Appeal form after the initial denial of her
application. (Id. at 220-26.) Since she had last completed a disability report, she had been told

-7-

that her back bones are disappearing and that surgery to replace the bones is needed. (Id. at
220.) She uses a walker. (Id.) Also, she now has fatty tumors on her back that require further
surgery. (Id.) In addition to Nexium and Cymbalta, she takes Skelaxin and cyclobenzaprine
as muscle relaxants and Darvocet for pain. (Id. at 223.)
In the fifteen years between 1994 and 2009, inclusive, Plaintiff had annual earnings in
access of $10,000 in 1995 through 1999, inclusive, and 2003. (Id. at 165.) She had no
earnings in 2005, 2007, 2008, and 2009. (Id.)
The relevant medical records10 before the ALJ are summarized below in chronological
order.
On February 1, 2008, Plaintiff saw J. Beckert, D.O., at Kahoka Medical Clinic (Kahoka
Clinic), for complaints of a cough, chest congestion, and shortness of breath for the past two
days. (Id. at 291.) She was treated with antibiotics. (Id.)
Plaintiff returned to the Kahoka Clinic on February 19 with complaints of abdominal
and back pain and migraines. (Id. at 290-91.) She was seen by Brigitte Cormier, D.O. (Id.)
Plaintiff suspected that she had a bladder infection. (Id. at 290.) She was in no acute distress.
(Id.) A urinary analysis was positive for a urinary tract infection. (Id.) Plaintiff was given
antibiotics for the infection and a refill of Vicodin and Cymbalta. (Id. at 290, 291.) Plaintiff
was seen three days later by Dr. Beckert, injected with an antibiotic, Rocephin, and prescribed
Pyridium, a urinary tract analgesic, and Bactrim. (Id. at 289.)

10

Records before the ALJ but not discussed below include those relating to Plaintiff's infected
great right toe, id. at 283-84, bronchitis, id. at 279-80, and sore throat and chest congestion, id. at
344.
-8-

Plaintiff saw Dr. Beckert again on March 11 and was referred to a Dr. Storm for
consultation and evaluation of her chronic urinary tract infection. (Id. at 288.)
One week later, she was seen by Dr. Beckert for complaints of abdominal pain in her
upper right quadrant. (Id. at 287.) She was prescribed Nexium and scheduled for an
ultrasound. (Id.) The ultrasound, performed the next day at Keokuk Area Hospital, was
normal; however, there was diffuse fatty infiltration of her liver. (Id. at 265-66.)
On April 30, Plaintiff consulted Dr. Cormier for "her chronic and continued back pain,"
which was getting worse. (Id. at 286-87.) The pain was radiating down her leg11 and was
resulting in a "significant decreased range of motion in flexion, extension, side bending and
rotation." (Id. at 286.) On examination, Plaintiff had a difficult time with her gait, with getting
on and off the examining table, and when getting up and out of her chair. (Id.) Also, Plaintiff
wanted disability paperwork completed.12 (Id. at 286, 287.)
Plaintiff consulted Dr. Beckert on July 1 about concerns that she might be diabetic. (Id.
at 285.) She was informed that she needed to lose sixty to seventy pounds. (Id.)
Plaintiff had a colonoscopy in August to investigate her complaints of constipation. (Id.
at 267-69, 281-82.) The colonoscopy was normal; Thomas Hakes, M.D., diagnosed Plaintiff
with irritable colon syndrome. (Id. at 267-69, 281-82.)
In October, Plaintiff returned to Dr. Beckert, complaining of worsening low back pain
that radiated down her right hip and leg. (Id. at 280, 283.) Because of the pain, she could not

11

Which leg was not specified.

12

See note 3, supra.
-9-

sit, stand, or lie down for long. (Id. at 283.) She reported that the pain had begun in 2004
when she injured her back working at a casino and was continually lifting heavy bags of
quarters. (Id.) She had contacted an attorney. (Id.) She insisted on having a magnetic
resonance imaging (MRI) of her spine. (Id. at 280.) That MRI, performed the next day at
Keokuk Area Hospital, revealed (1) moderate L5-S1 disc degeneration with a broad-based
high signal intensity posterior annular fissure and a laminotomy defect on the left; (2) a mild
subarticular recess stenosis and facet arthropathy on the left with mild encroachment on the
traversing left S1 nerve root; (3) mild L4-L5 disc and facet degeneration; and (4) mild to
moderate disc degeneration at L2-L3, L1-L2, and T12-L1. (Id. at 270-73, 276-78, 311-13.)
The next month, after again consulting Dr. Beckert, Plaintiff was to have a consultation
with another doctor for an evaluation of her severe back pain. (Id. at 275.) Her primary
concern at that visit was her urinary tract problems. (Id.) She was to be seen for routine
follow-up care. (Id.)
The next record is from May 19, 2009, when Plaintiff saw Dr. Beckert about her back
pain and was given a referral to Dr. Highland. (Id. at 346.)
In June, Plaintiff complained to Dr. Beckert of severe pain in her back and hip. (Id. at
347.) Concluding that the hydrocodone was not sufficiently alleviating Plaintiff's pain, he
changed her prescription to Percocet. (Id.)
Plaintiff consulted Thomas R. Highland, M.D., on July 13, reporting severe back pain
that radiated down her left leg to the back of the knee and her right leg down to her foot. (Id.
at 303.) She further reported that she had had the pain for four years. (Id.) She could barely

- 10 -

walk, and had trouble getting off the examination table. (Id.) X-rays of her lumbar spine
revealed "[s]ignificant narrowing at L4-L5 and L5-S1 with mild scoliosis." (Id. at 303, 310)
An MRI was recommended. (Id. at 303.)
Two days later, Dr. Highland informed Plaintiff of the MRI results and recommended
an anterior fusion at L4-L5 and L5-S1 with a laminectomy. (Id. at 302.) Plaintiff agreed. (Id.)
Plaintiff saw Dr. Cormier on August 11 about pain in her upper thoracic spine and pain
and numbness in her fingers. (Id. at 348.) She was also concerned about a recurring cyst. (Id.
at 348.) Plaintiff was encouraged to speak with Dr. Highland about having the cyst removed
during the fusion surgery. (Id.) Dr. Cormier declined to increase Plaintiff's Percocet dosage.
(Id.)
Six days later, Plaintiff underwent a consultation examination by Robin B. Blount,
M.D., prior to undergoing the surgery. (Id. at 337-39.) Plaintiff informed him that she could
not work due to her back pain and had been denied disability. (Id. at 337.) Dr. Blount
described her as "really quite upset, and the entire time she is in [the] office does not want to
answer questions, is evasive, and states that she has already told to [sic] many people the same
questions, and just is not interested in cooperating much with this evaluation." (Id.) She
reported that she had been treated for depression, but the medication, Cymbalta, made her sick
and she had not been taking it for the past few days. (Id.) She attributed her back pain to all
the lifting she had had to do in her previous jobs. (Id.) An electrocardiogram (EKG) was
normal. (Id. at 338.) Her extremities were not swollen. (Id.) Dr. Blount agreed with the
planned surgery. (Id. at 339.)

- 11 -

Plaintiff was admitted to Boone Regional Hospital on August 26 for anterior fusion
surgery. (Id. at 305-09, 317-40.) Her medical history on admission included gastroesophageal
reflux disease (GERD) since 2006, treated with Nexium; history of depression, treated with
Cymbalta; history of seasonal bronchial asthma and acute bronchitis, treated with an inhaler
as needed; and a history of spastic colitis. (Id. at 325.) It was noted that she had been a
cigarette smoker for years. (Id.) It was also noted that she reported that she had been in "fair
medical health" for the past forty-six years. (Id.) "None" was listed for "serious diseases." (Id.
at 326.) She had had a partial laminectomy with diskectomy at the L5-S1 level on the left side
in 1998, returned to work, and was doing well until 2004 when she had acute low back pain
while filling hoppers of slot machines at the casino where she worked. (Id. at 323.) She was
"eventually fired from that job." (Id.) She has "basically . . . lived with her symptoms since
that time." (Id.) Her current medications included Nexium, Percocet, Vicodin, Cymbalta, and
cyclobenzaprine to be taken regularly and Diphen/atrop to be taken as needed. (Id. at 326.)
Dr. Highland noted that Plaintiff had tinnitus in both ears and alternating diarrhea and
constipation from her spastic colitis. (Id. at 326.) Plaintiff was discharged on August 30 with
instructions "to continue with a course of . . . progressive ambulation," do no bending or
twisting at the waist, and lift nothing heavier than eight to ten pounds. (Id. at 321.) There
were no sitting limitations. (Id.)
Plaintiff consulted Dr. Cormier on September 16, reporting that she was not doing well
after her surgery. (Id. at 349-51.) She was having difficulties getting around, including getting
up out of chair, and was having right leg pain. (Id. at 351.) She was taking Percocet, which

- 12 -

was "helping some." (Id.) Her prescriptions for Percocet and the other medications were
renewed. (Id.)
Seven weeks after her surgery, on October 13, Plaintiff again saw Dr. Highland. He
reported that x-rays of her lumbar spine revealed "[g]ood initial healing of anterior fusion at
L4-5 and L5-S1. (Id. at 301.) He informed Plaintiff that "her x-rays looked great" and that,
at the site of her fusion, "everything looks good there."13 (Id.) She informed him that she still
had pain, particularly in her right leg, and had swelling in her left leg. (Id.) She had been
walking until two days earlier when she experienced a sudden onset of swelling in her left leg,
thigh, and calf. (Id.) She was walking "okay," although it caused pain in her back and right
leg. (Id.) Dr. Highland encouraged her to walk and told her he thought her back and right leg
would improve when she could get back to walking. (Id.) He noted that the ultrasound
performed by Dr. Beckert for deep vein thrombosis (DVT) was negative, but scheduled
Plaintiff for another ultrasound to make sure there was no DVT. (Id.) That ultrasound also
was negative. (Id. at 304.)
Three days later, Plaintiff saw Dr. Beckert, complaining of "marked" pain, discomfort,
and swelling in her left lower extremities. (Id. at 353.) Dr. Beckert noted that Plaintiff was
on narcotics for pain relief and that Dr. Highland did not agree with his approach. (Id.) He
cautioned Plaintiff to try not to take the narcotics any more than necessary. (Id.) Her
prescriptions, including one for hydrocodone, were renewed the next month. (Id.)

13

The ALJ mistakenly refers to this observation being that of Dr. Beckert.
- 13 -

Plaintiff consulted Dr. Cormier in January 2010 for intermittent right lower quadrant
pain. (Id. at 354.) Dr. Cormier attributed the pain to a flare-up of Plaintiff's diverticular
disease and prescribed some medication to help regulate her stools. (Id.)
In March, Plaintiff was treated by Dr. Cormier for a cough and congestion unrelieved
by over-the-counter medication. (Id. at 355.) As before, she was treated with antibiotics. (Id.)
Plaintiff saw Dr. Cormier again in May for "numerous" complaints, including pain in
her left shoulder and arm, weakness in her ankles, and a yeast infection. (Id. at 356-57.) She
was concerned that a lipoma (a benign fatty tumor) that had been removed earlier was growing
back. (Id. at 356.) She was scheduled to see Dr. Highland, who had performed the removal,
in June. (Id. at 356.) She was to return to the clinic as needed. (Id.)
Plaintiff returned in July, seeing Dr. Beckert for complaints of severe pain and
discomfort in her right leg and for completion of disability paperwork.14 (Id. at 343, 358.) She
informed him that Dr. Highland had cancelled her appointment. (Id.) On examination, she
was unable to squat or bend over and touch the floor. (Id.) She walked with a cane. (Id.) Dr.
Beckert opined that she was "unemployable" due to her severe pain. (Id.) He did not
anticipate that the pain would improve. (Id.) Plaintiff was continued on her current regimen.
(Id.)
Plaintiff saw Dr. Highland in August. (Id. at 366.) She had pain in her neck, left arm,
and upper back and residual pain in her low back and right leg. (Id. at 366.) He noted that she
had had "a couple of significant falls" since he had last seen her and that the falls had led to

14

See page 20, infra.
- 14 -

the pain in her neck, left arm, and upper back. (Id.) She was also "having progressive
deformity and pain in her feet." (Id.) X-rays of her cervical spine revealed "significant facet
arthritic changes"; of her thoracic spine revealed "[m]ultiple level degenerative disc disease";
and of her lumbar spine revealed the healed anterior fusion at L4-L5 and L5-S1 "with some
signs of degeneration." (Id.) Dr. Highland recommended new MRI scans and an evaluation
of her feet by a podiatrist. (Id.) The MRI of her cervical spine revealed facet arthropathy on
the left with neural foraminal narrowing at C4-C5 and broad-based central disc protrusion at
C6-C7 with right neural foraminal disc protrusion. (Id. at 368.) The MRI of her thoracic spine
revealed anterior spondylosis without focal disc protrusion, but no acute compression fracture
or edema. (Id. at 367.) The MRI of her lumbar spine revealed, in addition to the anterior
fusion at L4-L5, lumbar spondylosis and a disc bulge with facet arthropathy and lateral
recess/subarticular encroachment that was most noticeable at L3-L4. (Id. at 369.)
Dr. Highland examined and x-rayed Plaintiff's feet on September 16. (Id. at 364-65.)
His impression was of bilateral foot pain; posterior tibial tendon dysfunction; bilateral
accessory naviculars (an accessory bone of the foot); acquired pes planus (flat feet); and
gastroc contracture. (Id. at 365.) He recommended she wear an ankle brace when she is
active, wear orthotic shoes, and take an anti-inflammatory. (Id.) He started her on Naproxen
and recommended physical therapy. (Id.) She was to be re-evaluated after these measures had
been given a try. (Id.)
Dr. Highland spoke with Plaintiff over the telephone on October 4 about the MRI
results. (Id. at 363.) He suspected that the arthritic changes in her cervical spine were causing

- 15 -

her arm pain. (Id.) She asked if they could be causing her headaches; he did not know, but
thought it possible. (Id.) He recommended an epidural steroid injection at C6-C7. (Id.)
Plaintiff mentioned that she was trying to get disability. (Id.)
Also before the ALJ were various assessments of Plaintiff's impairments and their
resulting limitations.
In September 2008, Plaintiff was evaluated by Kelly David Halma, D.O. (Id. at 251-64.)
Plaintiff described the onset of her low back pain as beginning in 2003 and being work-related.
(Id. at 251.) The pain radiated to her right lower extremity pain. (Id.) She also had numbness
down her right leg, intermittent muscle spasms in her low back, and pain in her left leg down
to her knee. (Id.) The pain was then a six on a ten-point scale. (Id.) At its worst it was an
eight; at its best a five. (Id.) An acceptable level was a four. (Id.) Vicodin and rest relieved
her pain. (Id.) Lying on her side or back, extreme cold, getting out of the car, and prolonged
walking, standing, sitting, and riding aggravated the pain. (Id.) Plaintiff had migraine
headaches once a week, and had had for two years. (Id.) She also had ringing in her ears,
which was worsening over time. (Id.) She could walk a block, lift fifteen pounds in either
hand, ride for sixty minutes, stand for fifteen to thirty minutes, and sit for thirty to forty-five
minutes. (Id. at 251-52.) She drove two to three times a week, and did not have a handicap
sticker. (Id. at 252.) Other medical problems included depression, bilateral hip pain, sinus or
allergy problems, GERD, obesity,15 carpal tunnel, arthritis, and bilateral knee pain. (Id.) She

15

With a height of 5 feet 2½ inches and a weight of 222 pounds, Plaintiff had a Body Mass
Index (BMI) of 40. (Id. at 253.) The Court notes that Plaintiff testified that her current weight was
232, resulting in a BMI of 42. (Id. at 49.)
- 16 -

smoked one pack of cigarettes a day, and had done so for fifteen years. (Id.) She had ringing
in the ears bilaterally, a daily cough, shortness of breath at rest, and recurrent urinary and
bladder infections. (Id.) Her recent and remote memory of medical events was good to fair,
although she had some difficulty recalling facts and dates. (Id. at 253.) She was alert and
oriented and did not appear to be in acute distress. (Id.) She rocked from side to side to try
to relieve her pain and appeared to be uncomfortable after sitting fifteen minutes. (Id.) She
was unable to stand erect, flexing approximately fifteen degrees. (Id.) She needed to use both
hands to get out of her chair. (Id.) She only took six steps when tandem walking, and had
difficulty walking heel to toe. (Id.) She could lift her left leg greater than ninety degrees, and
her right left up to ninety degrees. (Id.) She refused to kneel for fear of falling and increased
pain. (Id.) She was slow when going up and down an eight-inch step. (Id.) She was able to
understand a conversational voice, but Dr. Halma's voice had to be slightly louder and she
spoke slightly louder. (Id.) Her fine motor skills and coordination were intact. (Id.) She had
decreased sensation to touch in her lower extremities along the right lateral thigh. (Id.) She
could place her hands behind her head, but had difficulty reaching behind her back. (Id.) She
had a positive Tinel's sign at the left elbow and at both wrists and a negative Phalen's sign.16
(Id. at 254.) Finkelstein's test was slightly positive on the right.17 (Id.) She had pain over the

16

Tinel's and Phalen's tests are used in the diagnosis of carpal tunnel syndrome. See Jonathan
Cluett, M.D., Carpal Tunnel Syndrome http://orthopedics.about.com/cs/carpaltunnel/a/carpaltunnel
(last visited September 12, 2013). A Tinel's sign is present when tingling in the fingers is made worse
by tapping the median nerve along its course in the wrist. Id. A Phalen's sign is present when pushing
the back of the hands together causes the complained-of symptoms. Id.
17

The Finkelstein test is used to confirm whether a patient has de Quervain's tenosynovitis.
De Quervain's tenosynovitis, http://www.mayoclinic.com/health/medical/IM00780 (last visited
- 17 -

lateral epicondyle region of her right elbow. (Id.) In her hips, she had decreased strength,
flexion, extension, and internal rotation. (Id.) Seated straight leg raises were positive.18 (Id.)
She had deceased strength in her knees and flexion on the right was four out of five. (Id.) A
grind test was positive for pain at the right knee. (Id.) She appeared to be uncomfortable in
a prone position after ten minutes. (Id.) She had a limited range of motion in her cervical and
lumbar spine. (Id. at 254, 257.) She could not raise an eight and one-half pound box higher
than one to two inches or pick up an object off the floor without experiencing pain that was
a seven to eight on a ten-point scale. (Id. at 255.) Dr. Halma's assessment was of low back
pain secondary to degenerative disc disease with a positive history of L5-S1 involvement; right
knee pain and possible degenerative joint disease; muscle spasms in both hamstrings; morbid
obesity; and a history of carpal tunnel syndrome, greater on the right than on the left. (Id.)
Dr. Halma also completed a Medical Source Statement of Ability to Do Work-Related
Activities (Physical) after examining Plaintiff. (Id. at 259-64.) He was unable to assess
Plaintiff's ability to lift and carry weight due to her low back pain. (Id. at 259.) At any one
time and without interruption, she could sit, stand, or walk for no longer than thirty minutes.
(Id. at 260.) For a total during an eight-hour work day, she could sit for three hours and stand
or walk for two. (Id.) She did not need to use a cane to walk. (Id.) She was limited to only

September 12, 2013). The test is positive when pain is caused when the patient bends her thumb
down across the palm of the hand, covers the thumb with her fingers, and then bends her wrist toward
her little finger. Id.
18

"During a [straight leg raising] test a patient sits or lies on the examining table and the
examiner attempts to elicit, or reproduce, physical findings to verify the patient's reports of back pain
by raising the patient's legs when the knees are fully extended." Willcox v. Liberty Life Assur. Co.
of Boston, 552 F.3d 693, 697 (8th Cir. 2009) (internal quotations omitted).
- 18 -

occasionally pushing or pulling with either hand. (Id. at 261.) She was also limited to
frequently reaching overhead and handling with either hand. (Id.) She could continuously
finger, feel, and do all other reaching. (Id.) She should use her feet to operate foot controls
no more than two-thirds of the time. (Id.) She should never crouch, crawl, or climb ladders
or scaffolds and should only occasionally kneel, stoop, balance, or climb stairs and ramps. (Id.
at 262.) She should only occasionally be exposed to humidity and extreme cold or heat. (Id.
at 263.) She should never be around unprotected heights and vibrations. (Id.) She could not
climb a few steps at a reasonable pace even when using a single hand rail. (Id. at 264.) She
could care for her personal hygiene, prepare a simple meal, shop, travel alone, and sort, handle,
and use paper and files. (Id.)
In October 2009, Dr. Highland completed a form titled "Medical statement regarding
low back pain for Social Security disability claim." (Id. at 298-99.) Of a list of symptoms, he
checked as present neuro-anatomic distribution of pain, limitation of motion of spine, and
sensory or reflex loss. (Id. at 298.) He did not check, among others, an "[i]nability to ambulate
effectively" or "[n]eed to change position more than once every two hours." (Id.) He circled
"moderate" as the level of pain that Plaintiff suffered from, sixty minutes as the length of time
she could stand or sit at one time, ten pounds as the weight she could lift on an occasional
basis and five pounds as the weight she could frequently lift, "[o]ccasionally" for how often
she could bend, and "[n]ever" for how often she could stoop. (Id.) He noted that she could not
work. (Id.) In the "Comments" section, he also noted that she was recovering from recent
back surgery. (Id. at 299.)

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In July 2010, Dr. Beckert completed a different "Medical statement regarding low back
pain for Social Security disability claim" form on behalf of Plaintiff. (Id. at 341-43.) His
diagnoses were degenerative joint disease, spinal stenosis, bulging disc, and degenerative
scoliosis. (Id. at 341.) All were in the lumbar spine. (Id.) He circled fifteen minutes for the
length of time Plaintiff could stand at one time and sixty minutes for the total amount of time
during a work day that she could stand or sit. (Id.) She could sit for sixty minutes at any one
time. (Id.) She could lift five pounds occasionally. (Id.) She could never bend, stoop, work
around dangerous equipment, or tolerate extreme heat, dust, smoke, or fumes. (Id.) She could
occasionally balance, operate a motor vehicle, tolerate extreme cold, tolerate exposure to
noise, and do fine or gross manipulation with her left hand. (Id.) She could frequently do fine
or gross manipulation with her right hand. (Id.) She would need to elevate her legs most of
the time during an eight-hour workday. (Id. at 342.) Dr. Beckert opined that Plaintiff's level
of pain was severe. (Id.)
The next month, Dr. Highland completed the same "Medical statement regarding low
back pain for Social Security disability claim" form as had Dr. Beckert. (Id. at 361-62.) His
diagnoses were degenerative joint disease of the cervical and lumbar spine, lumbar stenosis,
and status-post lumbar fusion. (Id. at 361.) He marked that Plaintiff could work two hours a
day; stand or sit for thirty minutes at any one time; stand for a total of four hours in a workday;
sit for a total of two hours in a workday; occasionally lift ten pounds and frequently lift none;
never stoop; occasionally bend, balance, raise her left and right arms above shoulder level;
operate a motor vehicle; tolerate heat or cold; and tolerate noise. (Id.) She could never work

- 20 -

around dangerous equipment or tolerate exposure to dust, fumes, or smoke. (Id.) She could
constantly do fine or gross manipulation with either hand. (Id.) She would never need to
elevate her legs during an eight-hour workday. (Id. at 362.) The level of her pain was
"moderate." (Id.)
The ALJ's Decision
The ALJ first determined that Plaintiff had met the insured status requirements of the
Act through September 30, 2010, and had not engaged in substantial gainful activity during
the period from her amended alleged disability onset date of January 29, 2009, through
September 30, 2010. (Id. at 16.) The ALJ next found that Plaintiff had severe impairments
of degenerative disc disease, lumbar stenosis, status-post lumbar fusion, and morbid obesity.
(Id.) She did not have, however, an impairment or combination thereof that met or medically
equaled an impairment of listing-levels severity. (Id.) In so finding, the ALJ considered the
effect of Plaintiff's obesity on her impairments. (Id. at 17.)
The ALJ then concluded that Plaintiff had the residual functional capacity (RFC),
through the date last insured, to perform sedentary work19 except she was restricted to lifting
and carrying no more than ten pounds occasionally and eight pounds frequently; never
climbing ladders, ropes, and scaffolds; never kneeling, crouching, or crawling; never reaching
overhead with her right arm; and avoiding concentrated exposure to noise, high-pitched

19

"Sedentary work involves lifting no more than 10 pounds at a time and occasional walking
and standing." 20 C.F.R. § 404.1567(a).
- 21 -

frequencies, extreme cold and heat, and unprotected heights and hazardous machinery. (Id.)
Also, she needed an at-will sit-stand option. (Id.)
When assessing Plaintiff's RFC, the ALJ considered the medical and opinion evidence
of Drs. Cormier, Highland, Beckert, Blount, and McKenna. (Id. at 17-20.) He gave some
weight to the treating records of Drs. Beckert, Cormier, and Highland, but gave little weight
to the medical source statements of Drs. Beckert and Highland on the grounds that they
relieved heavily on Plaintiff's subjective reports of her symptoms and limitations and that they
were inconsistent with each other's statement. (Id. at 20-21.) He gave great weight to the
opinion of Dr. McKenna, noting that he had the benefit of reviewing all the medical evidence
and of hearing Plaintiff's testimony. (Id. at 20.)
The ALJ also considered Plaintiff's activities of daily living and evaluated her
credibility, finding her to be only partially credible. (Id.) He noted that she had worked
steadily in the past – a consideration favoring her credibility – but had been fired from her job
at a casino for reasons apparently unrelated to her impairments. (Id.) Undergoing surgery
suggested her symptoms were genuine; however, her physician later noted that things looked
good after the surgery. (Id.) Dr. McKenna testified that the surgery should have been curative.
(Id.) When seeking medical treatment, Plaintiff sometimes complained only of non-back pain
related symptoms, suggesting that the pain was intermittent. (Id.) And, there were indications
in the record that her treating physicians were uncomfortable with the dosage of narcotic
medications prescribed. (Id.)

- 22 -

With her RFC, however, Plaintiff was unable to perform her past relevant work. (Id.
at 21.) With her RFC, age as of the date last insured, and education, she was able to perform
jobs that exist in significant numbers in the national and local economies. (Id. at 21-22.)
Additionally, the ALJ found that the vocational expert had reasonably explained any
discrepancies between his testimony and the DOT. (Id. at 22.)
For the foregoing reasons, Plaintiff was found not to be disabled during the relevant
period within the meaning of the Act. (Id.)
Legal Standards
Under the Act, the Commissioner shall find a person disabled if the claimant is "unable
to engage in any substantial activity by reason of any medically determinable physical or
mental impairment," which must last for a continuous period of at least twelve months or be
expected to result in death. 42 U.S.C. § 1382c(a)(3)(A). Not only the impairment, but the
inability to work caused by the impairment must last, or be expected to last, not less than
twelve months. Barnhart v. Walton, 535 U.S. 212, 217-18 (2002). Additionally, the
impairment suffered must be "of such severity that [the claimant] is not only unable to do [her]
previous work, but cannot, considering [her] age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the national economy, regardless of
whether . . . a specific job vacancy exists for [her], or whether [s]he would be hired if [s]he
applied for work." 42 U.S.C. § 1382c(a)(3)(B).
The Commissioner has established a five-step process for determining whether a person
is disabled. See 20 C.F.R. §§ 404.1520, 416.920; Hurd v. Astrue , 621 F.3d 734, 738 (8th

- 23 -

Cir. 2010); Gragg v. Astrue, 615 F.3d 932, 937 (8th Cir. 2010); Moore v. Astrue, 572 F.3d
520, 523 (8th Cir. 2009). "Each step in the disability determination entails a separate analysis
and legal standard." Lacroix v. Barnhart, 465 F.3d 881, 888 (8th Cir. 2006). First, the
claimant cannot be presently engaged in "substantial gainful activity." See 20 C.F.R.
§§ 404.1520(b), 416.920(b); Hurd, 621 F.3d at 738. Second, the claimant must have a severe
impairment.

See 20 C.F.R. §§ 404.1520(c), 416.1520(c).

The Act defines "severe

impairment" as "any impairment or combination of impairments which significantly limits
[claimant's] physical or mental ability to do basic work activities . . . ." Id.
At the third step in the sequential evaluation process, the ALJ must determine whether
the claimant has a severe impairment which meets or equals one of the impairments listed in
the regulations and whether such impairment meets the twelve-month durational requirement.
See 20 C.F.R. §§ 404.1520(d), 416.920(d) and Part 404, Subpart P, Appendix 1. If the
claimant meets these requirements, she is presumed to be disabled and is entitled to benefits.
Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994).
"Prior to step four, the ALJ must assess the claimant's [RFC], which is the most a
claimant can do despite her limitations." Moore, 572 F.3d at 523 (citing 20 C.F.R.
§ 404.1545(a)(1)). "[RFC] is not the ability merely to lift weights occasionally in a doctor's
office; it is the ability to perform the requisite physical acts day in and day out, in the
sometimes competitive and stressful conditions in which real people work in the real world."
Ingram v. Chater, 107 F.3d 598, 604 (8th Cir. 1997) (internal quotations omitted). Moreover,
"'a claimant's RFC [is] based on all relevant evidence, including the medical records,

- 24 -

observations by treating physicians and others, and an individual's own description of [her]
limitations.'" Moore, 572 F.3d at 523 (quoting Lacroix, 465 F.3d at 887); accord Partee v.
Astrue, 638 F.3d 860, 865 (8th Cir. 2011).
In determining a claimant's RFC, "'the ALJ first must evaluate the claimant's
credibility.'" Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007) (quoting Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2002)). This evaluation requires that the ALJ
consider "'[1] the claimant's daily activities; [2] the duration, frequency and intensity of the
pain; [3] precipitating and aggravating factors; [4] dosage, effectiveness and side effects of
medication; [5] functional restrictions.'" Id. (quoting Polaski v. Heckler, 739 F.2d 1320, 1322
(8th Cir. 1984)). "'The credibility of a claimant's subjective testimony is primarily for the ALJ
to decide, not the courts.'" Id. (quoting Pearsall, 274 F.3d at 1218). After considering the
Polaski factors, the ALJ must make express credibility determinations and set forth the
inconsistencies in the record which caused the ALJ to reject the claimant's complaints. Singh
v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000); Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir.
1998).
At step four, the ALJ determines "'whether a claimant's impairments keep her from
doing past relevant work.'" Wagner, 499 F.3dat 853 (quoting Jones v. Chater, 86 F.3d 823,
826 (8th Cir. 1996)). If "the claimant has the [RFC] to do either the specific work previously
done or the same type of work as it is generally performed in the national economy, the
claimant is found not to be disabled." Lowe v. Apfel, 226 F.3d 969, 973 (8th Cir. 2000).

- 25 -

If, as in the instant case, the ALJ holds at step four of the process that a claimant cannot
return to her past relevant work, the burden shifts at step five to the Commissioner to establish
that the claimant maintains the RFC to perform a significant number of jobs within the national
economy. Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009); Banks v. Massanari, 258
F.3d 820, 824 (8th Cir. 2001). The Commissioner may meet her burden by eliciting testimony
by a VE, Pearsall, 274 F.3d at 1219, based on hypothetical questions that "'set forth
impairments supported by substantial evidence on the record and accepted as true and capture
the concrete consequences of those impairments,'" Jones v. Astrue, 619 F.3d 963, 972 (8th
Cir. 2010) (quoting Hiller v. S.S.A., 486 F.3d 359, 365 (8th Cir. 2007)).
If the claimant is prevented by her impairment from doing any other work, the ALJ will
find the claimant to be disabled.
The ALJ's decision whether a person is disabled under the standards set forth above is
conclusive upon this Court "'if it is supported by substantial evidence on the record as a
whole.'" Wiese v. Astrue, 552 F.3d 728, 730 (8th Cir. 2009) (quoting Finch v. Astrue, 547
F.3d 933, 935 (8th Cir. 2008)); accord Dunahoo v. Apfel, 241 F.3d 1033, 1037 (8th Cir. 2001).
"'Substantial evidence is relevant evidence that a reasonable mind would accept as adequate
to support the Commissioner's conclusion.'" Partee, 638 F.3d at 863 (quoting Goff v.
Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)). When reviewing the record to determine
whether the Commissioner's decision is supported by substantial evidence, however, the Court
must consider evidence that supports the decision and evidence that fairly detracts from that
decision. Moore, 623 F.3d at 602; Jones, 619 F.3d at 968; Finch, 547 F.3d at 935. The Court

- 26 -

may not reverse that decision merely because substantial evidence would also support an
opposite conclusion, Dunahoo, 241 F.3d at 1037, or it might have "come to a different
conclusion," Wiese, 552 F.3d at 730. "'If after reviewing the record, the [C]ourt finds it is
possible to draw two inconsistent positions from the evidence and one of those positions
represents the ALJ's findings, the [C]ourt must affirm the ALJ's decision.'" Partee, 638 F.3d
at 863 (quoting Goff, 421 F.3d at 789).
Discussion
Plaintiff argues that the ALJ erred in not accepting the opinions of Drs. Highland and
Beckert about her functional limitations; in evaluating her credibility; in failing to include
limitations in his RFC findings that were supported by the medical record; and in failing to cite
the VE's testimony that such limitations would preclude employment.
Drs. Highland and Beckert were Plaintiff's treating physicians. The ALJ declined to
give either physician's assessment of Plaintiff's functional limitations controlling weight and
deferred instead to Dr. McKenna's assessment.
"A treating physician's opinion is given controlling weight if it 'is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in [a claimant's] case record.'" Tilley v. Astrue, 580 F.3d 675,
679 (8th Cir. 2009) (quoting 20 C.F.R. § 404.1527(d)(2)) (alteration in original); accord
Anderson v. Astrue, 696 F.3d 790, 793 (8th Cir. 2012); Teague v. Astrue, 638 F.3d 611, 615
(8th Cir. 2011). "'However, [a]n ALJ may discount or even disregard the opinion of a treating
physician where other medical assessments are supported by better or more thorough medical

- 27 -

evidence, or where a treating physician renders inconsistent opinions that undermine the
credibility of such opinions.'" Anderson, 696 F.3d at 793 (quoting Wildman v. Astrue, 596
F.3d 959, 964 (8th Cir.2010)) (alteration in original). "Ultimately, the ALJ must 'give good
reasons' to explain the weight given the treating physician's opinion." Id. (quoting 20 C.F.R.
§ 404.1527(c)(2)).
There might be such good reasons in the instant case; however, the reasons cited by the
ALJ do not lend the necessary support. For instance, Dr. McKenna replied "Yes" to the ALJ's
question whether Plaintiff was "still post-op and recovering." (R. at 63.) The hearing was one
year and one day after her surgery. When explaining why he discounted the three-hour sitting
limitation placed on Plaintiff by Dr. Halma, he stated that surgeons would usually not release
their patients for "working except [INAUDIBLE] sedentary activities" before six months or a
year after the surgery.20 Dr. Highland issued his second medical statement one year and two
days after the surgery, limiting Plaintiff to a total of two hours sitting and four hours standing.
Dr. McKenna did not have that statement. Dr. McKenna also attributed the limitations in
Plaintiff's ability to walk to her back problems and noted a reference in the October 2009
medical records to Plaintiff walking "okay." (R. at 52, 301.) That reference used the past tense
to describe how Plaintiff was walking and was made in the context of her explanation that she
had been walking "pretty good" until she developed acute swelling in her left leg. Moreover,
Dr. McKenna did not have the medical records of a month after the hearing relating to

20

The Court notes that the assessment by Dr. Halma was done the year before Plaintiff's fusion

surgery.
- 28 -

Plaintiff's bilateral foot pain and the recommendation that she wear an ankle brace and orthotic
shoes. The ALJ had those records before he issued his decision.21 There is no discussion,
however, about how that foot pain might affect Plaintiff's ability to walk.
One consideration of the ALJ when deciding not to give the opinions of Drs. Beckert
and Highland great weight was their reliance on Plaintiff's subjective complaints. The ALJ
found those complaints not to be fully credible.
As noted above, when evaluating a claimant's credibility, the ALJ must consider the
relevant factors: "'(1) the claimant's daily activities; (2) the duration, intensity, and frequency
of pain; (3) the precipitating and aggravating factors; (4) the dosage, effectiveness, and side
effects of medication; (5) any functional restrictions; (6) the claimant's work history; and (7)
the absence of objective medical evidence to support the claimant's complaints.'" Buckner v.
Astrue, 646 F.3d 549, 558 (8th Cir. 2011). "'If an ALJ expressly discredits the claimant's
testimony and gives good reason for doing so, [the Court] will normally defer to the ALJ's
credibility determination.'" Juszczyk v. Astrue, 542 F.3d 626, 632 (8th Cir. 2008) (quoting
Gregg v. Barnhart, 354 F.3d 710, 714 (8th Cir. 2008)); accord Buckner, 646 F.3d at 558.
Additionally, although "ALJs "must acknowledge and consider [the] . . . [relevant] factors
before discounting a claimant's subjective complaints, . . . ALJs 'need not explicitly discuss
each . . . factor.'" Wildman, 596 F.3d at 968 (quoting Goff, 421 F.3d at 791); accord Buckner,
646 F.3d at 559; Lowe, 226 F.3d at 971-72.

21

Also, the records are dated before the date Plaintiff was last insured.
- 29 -

The Commissioner argues that, when assessing Plaintiff's credibility, the ALJ properly
considered the lack of objective evidence supporting her claims of total disability; the medical
opinions suggesting she was able to perform sedentary work; "some" of her daily activities; and
her failure to comply with treatment. These are proper considerations in general, but are not
supported by the record in this case.
The objective medical evidence cited is Dr. McKenna's hearing testimony that Plaintiff's
back fusion surgery should have cured her symptoms. Whether it should have, the question
is whether it did. In support of his contention that it did, he cites the reference in the postoperative medical records to Plaintiff "walking okay." (Def.'s Br. at 8, ECF No 19.) As noted
above, however, this reference is in the past tense. The Commissioner also cites the reference
in that same medical record to Plaintiff having recovered well from her surgery. The reference
was in the context of the fusion site and the alignment of the implants and spaces looking
"good." (R. at 301.) That same record includes Plaintiff's complaint of continuing pain,
particularly in her right leg. (Id.) The month earlier, and a month after her surgery, Plaintiff
complained to Dr. Cormier of difficulty getting around and right leg pain.
The daily activities cited by the Commissioner in support of the ALJ's credibility
determination are washing dishes, folding laundry, preparing meals, shopping, and driving a
car without restrictions. Plaintiff reported that her daughter helps her prepare meals, she shops
once a week only for light items and for no longer than twenty minutes at a time, and she needs
help with housework. She does not drive far. "Although [a]cts which are inconsistent with a
claimant's assertion of disability reflect negatively upon that claimant's credibility, [the Eighth

- 30 -

Circuit Court of Appeals] has repeatedly observed that the ability to do activities such as light
housework and visiting with friends provides little or no support for the finding that a claimant
can perform full-time competitive work." Reed v. Barnhart, 399 F.3d 917, 923 (8th Cir.
2005) (internal quotations omitted) (first alteration in original). In Kelley v. Callahan, 133
F.3d 583, 588-89 (8th Cir. 1998), a claimant's testimony that she could take care of her daily
needs but required help with housework and shopping supported her credibility. In Swope v.
Barnhart, 436 F.3d 1023, 1024, 1026 n.4 (8th Cir. 2006), a claimant's daily activities of doing
dishes, shopping, carrying groceries into the house, driving a car, mowing the lawn, and fishing
were held not to be a reason for discrediting his complaints of disabling pain.
The only reference to Plaintiff not complying with treatment was when she informed
Dr. Blount that she had not taken Cymbalta, prescribed for her depression, for a few days
because it made her sick.
Other considerations cited by the ALJ do not support his credibility determination. One
of those considerations was his finding that she had been fired from her job at a casino for
reasons apparently unrelated to her impairments.22 She might have been, but the record does
not say so. She reported that she had been fired or laid-off from a job because she could not
get along with people and that she did not get along with bosses. The reference to her being
fired from the casino, however, followed her report to Dr. Highland that she had a recurrence

22

The ALJ found that being fired negated the positive consideration of Plaintiff's good work
history. See Boettcher v. Astrue, 652 F.3d 860, 865 (8th Cir. 2011) (claimant's work history is a
consideration in evaluating a claimant's credibility); Nunn v. Heckler, 732 F.2d 645, 648 (8th Cir.
1984) ("[A] claimant with a good record is entitled to substantial credibility when claiming an inability
to work because of a disability.") (internal quotations omitted).
- 31 -

of back pain when working at a casino and had been fired. Thus, her impairments could have
been the reason she was fired, but the question was never asked.
The ALJ cancelled out the suggestion that her symptoms were genuine by noting the
later notation that things looked good after the surgery. For the reasons set forth above, this
observation and that of Dr. McKenna that the surgery should have curative do not carry the
weight he gave them. The ALJ also weighed the references in Plaintiff's medical records to the
dosage of narcotic medications against her credibility. Dr. Cormier declined to increase
Plaintiff's dosage of Percocet when seeing her two weeks before her fusion surgery; two weeks
after the surgery, Dr. Cormier renewed Plaintiff's prescription for Percocet. Two months after
the surgery, Dr. Beckert noted that Plaintiff was taking narcotic medication for pain relief and
that Dr. Highland did not agree with the approach. Neither reference includes any implication
that Plaintiff had drug-seeking behavior.
The ALJ also noted that, although Plaintiff aggressively sought medical treatment for
her pain, see Kelley, 133 F.3d at 589 (claimant's numerous visits to doctors supported her
allegations of disabling pain), there were times when she sought medical treatment and did not
complain of such. This consideration also fails to support his credibility determination. When
Plaintiff did mention her pain, it was in the context of the pain being continuing or chronic.
Not mentioning it when she was seeking treatment for an infected toe, for instance, is not
inconsistent with her descriptions of continuing pain.23
23

There are inconsistencies in the record, e.g., Plaintiff reported that she did not drive when
applying for DIB and SSI but testified that she did; however, these inconsistencies are not cited by
the ALJ and the Court will not assume they were considered in light of the specific considerations that
were listed by the ALJ.
- 32 -

Conclusion
Plaintiff may not have been disabled prior to the date she was last insured; however, the
ALJ's reliance on Dr. McKenna's opinion and the ALJ's credibility assessment lack support in
the record. The case will be remanded for further proceedings, including a reassessment of
Plaintiff's credibility and a reexamination of all the medical evidence. Because the case will
be remanded, the Court declines to reach the merits of Plaintiff's last two arguments, both of
which focus on the medical assessments of her functional limitations.
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED and
that this case is REMANDED for further proceedings as discussed above.
An appropriate Order of Remand shall accompany this Memorandum and Order.

/s/ Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE
Dated this 23rd day of September, 2013.

- 33 -