Heathman v. Colvin

Filing 32

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED, and this cause is REMANDED to the Commissioner for further proceedings consistent with this opinion. A separate Judgment in accordance with this Memorandum and Order is entered this same date Signed by Magistrate Judge Terry I. Adelman on 9/10/14. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

JAMES D. HEATHMAN,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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No. 2:13CV61 TIA

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) for judicial review of the
Commissioner’s final decision denying James D. Heathman’s application for
disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§
401, et seq. All matters are pending before the undersigned United States
Magistrate Judge, with consent of the parties, pursuant to 28 U.S.C. § 636(c).
Because the Commissioner failed to consider relevant evidence of record, the final
decision is not supported by substantial evidence on the record as a whole and is
reversed.
I. Procedural History
On June 10, 2011, plaintiff James D. Heathman applied for disability
insurance benefits (DIB) claiming he became disabled on January 1, 2004, because

of heart problems and rotator cuff problems. (Tr. 165-71, 193.) Plaintiff
subsequently amended his alleged onset date to October 14, 2005. (Tr. 184.)
Upon initial consideration, the Social Security Administration denied plaintiff’s
claim for benefits. (Tr. 108, 110-14.) At plaintiff’s request, a hearing was held
before an administrative law judge (ALJ) on October 30, 2012, at which plaintiff
and a vocational expert testified. (Tr. 31-97.) On December 7, 2012, the ALJ
issued a decision denying plaintiff’s claim for benefits, finding plaintiff to have last
met the insured status requirements of the Social Security Act on December 31,
2008; and that vocational expert testimony supported a finding that, through such
date, plaintiff could perform work as it existed in significant numbers in the
national economy. (Tr. 8-25.) On April 26, 2013, upon review of additional
evidence, the Appeals Council denied plaintiff’s request for review of the ALJ’s
decision. (Tr. 1-6.) The ALJ’s decision thus stands as the final decision of the
Commissioner. 42 U.S.C. § 405(g).
In the instant action for judicial review, plaintiff claims that the ALJ’s
decision is not supported by substantial evidence on the record as a whole, arguing
that the ALJ wholly failed to consider certain opinion evidence rendered by his
treating physician, Dr. Bragg, which was relevant to his disability during the
insured status period. Plaintiff also contends that the ALJ erred by failing to obtain
testimony from a medical advisor to determine the date of disability onset.
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Plaintiff requests that the final decision be reversed and the matter be remanded for
an award of benefits or for further consideration.
II. Testimonial Evidence Before the ALJ
A.

Plaintiff’s Testimony
At the hearing on October 30, 2012, plaintiff testified in response to

questions posed by the ALJ and counsel.
At the time of the hearing, plaintiff was fifty-seven years of age. On
October 14, 2005, the alleged onset date of disability, plaintiff was fifty years of
age. Plaintiff stands five feet, eleven inches tall and weighs 195 pounds. Plaintiff
is right-handed. (Tr. 36-37.) Plaintiff is married and has two children and three
step-children, the youngest of which is twenty-one years old. (Tr. 37-38.) Plaintiff
completed the twelfth grade in high school and received no additional training.
(Tr. 39.)
Plaintiff’s prior work consisted of auto body repair and restoring vehicles.
Plaintiff continues to perform this work but for no more than eight hours a week.
(Tr. 39-40.) Plaintiff testified that, in order to perform such work, a person must
be able to weld, sand, and lift up to sixty-five pounds. Plaintiff testified that he last
lifted the heavier weight required in 2008 or 2009. Plaintiff testified that he can
currently lift up to twenty pounds and will get someone to help him if he needs to
lift anything heavier for his work. (Tr. 42-44.)
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Plaintiff testified that he applied for disability benefits in 2004 after he had
two heart attacks. Plaintiff testified that he withdrew that application, however,
because he was able to work and wanted to continue to work. Plaintiff testified
that he could not presently work full time because of problems with his arms,
shoulders, and back and because of numbness in his feet. Plaintiff testified that he
currently works in the auto shop for about an hour to an hour and a half but then
must go home and put his feet up. Plaintiff testified that he can no longer hold a
paint gun. Plaintiff testified that he cannot drive for any period of time and has
difficulty lifting. (Tr. 45-47.)
With respect to the period before his insured status expired, that is, on or
before December 31, 2008, plaintiff testified that he was constantly tired and did
not have the energy to perform work on a full time basis. Plaintiff testified that he
needed to elevate his legs at least twice a day during this time and would
experience pain and fatigued legs if he did not do so. Plaintiff testified that his
level of fatigue has increased within the past couple of years. (Tr. 48, 65-66.)
Plaintiff testified that he also had sleep apnea during the relevant period but
could not use a CPAP machine because of difficulties wearing the mask. Plaintiff
testified that mold issues prevented him from using oxygen at night. (Tr. 48-49.)
Plaintiff testified that he has had arthritis in his right hand since he was
twenty-one years of age and was not able use his right hand for auto body work.
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(Tr. 50-51.)
Plaintiff testified that he currently experiences low back pain that radiates to
his left leg and causes numbness in his foot. Plaintiff testified that recent x-rays
show arthritis in his back. Plaintiff testified that he also had three surgeries for
hernia repair and underwent rotator cuff surgery in 2011 for issues he had with his
shoulder since 2009. (Tr. 50-51.) Plaintiff testified that he currently has little pain
in his shoulders and arms if he keeps his arms at his side but that the pain worsens
with reaching. (Tr. 56.)
Plaintiff testified that he currently takes the same medication he took prior to
December 31, 2008, including medication for blood pressure and cholesterol,
Celebrex for arthritis, Nexium, aspirin, and occasional Prednisone for his back and
shoulders. Plaintiff testified that Celebrex helps with his arthritis. Plaintiff
testified to having recently been prescribed a muscle relaxant. Plaintiff testified
that his medication causes him to feel tired. (Tr. 51-53.)
As to his current exertional abilities, plaintiff testified that he can sit for five
minutes before needing to change positions. Plaintiff testified that he can stand for
ten minutes and walk about one block. Plaintiff testified that he can lift no more
than twenty pounds and has problems reaching outward and overhead with both
arms. Plaintiff testified that problems with his left knee prevent him from kneeling
but that he can stoop, crouch, and crawl. Plaintiff testified that these limitations
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were not “this bad” in 2008 and have gradually worsened. (Tr. 58-60.)
As to his exertional abilities in 2008, plaintiff testified that he worked five to
six hours a day and could stand up to four hours at one time. Plaintiff testified that
he has had trouble gripping with his right hand since 2004. (Tr. 66-68.)
As to his daily activities during the relevant period, plaintiff testified that he
was lifting a lot more weight in 2008 and suffered hernias as a result. Plaintiff
testified that he was able to mow the lawn and do house repairs but needed to rest
afterward. (Tr. 60-61, 70.) Plaintiff testified that he napped twice a day in 2008
for about an hour and a half, and would be in bed by 7:30 p.m. if he did not take
such naps. (Tr. 67.)
B.

Vocational Expert Testimony
John F. McGowan, a vocational expert, testified at the hearing on October

30, 2012, in response to questions posed by the ALJ and counsel.
Mr. McGowan classified plaintiff’s past relevant work as an auto body
repairman as medium and skilled, and as an automotive painter as medium and
semi-skilled. (Tr. 74-75.)
The ALJ asked Mr. McGowan to assume an individual limited to light work
except with no overhead reaching; no more than occasional climbing of ramps and
stairs; occasional balancing; and no climbing of ladders, ropes, or scaffolds. Mr.
McGowan testified that such a person could not perform any of plaintiff’s past
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relevant work but, with a sit/stand option, could perform work as a hospital
products assembler, of which 1,500 such jobs exist in the State of Missouri and
26,400 nationally; small electrical parts assembler, of which 262 such jobs exist in
the State of Missouri and 8,028 nationally; and personal home health aide/
companion, of which 3,900 such jobs exist in the State of Missouri and 141,000
nationally. (Tr. 75-77.)
The ALJ then asked Mr. McGowan to assume the same individual would
have to alternate between sitting, standing, and walking every forty-five minutes at
will, to which Mr. McGowan testified that the person could perform the jobs
previously identified except for hospital products assembler. Mr. McGowan
testified that such a person could also perform work as an electronic equipment
final inspector, of which 410 such jobs exist in the State of Missouri and 21,561
nationally. (Tr. 77-78.)
The ALJ then asked Mr. McGowan to assume the individual had limited grip
in one hand, to which Mr. Gowan testified that the person could continue to
perform work as a personal health aide/companion. (Tr. 78-79.) Mr. McGowan
testified that if such a person could use their hands occasionally, he could perform
work as a film processing counter clerk, of which 1,042 such jobs exist in the State
of Missouri and 414,730 nationally; school bus monitor/children’s attendant, of
which 1,020 exist in the State of Missouri and 79,280 nationally; and lobby
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attendant/ticket taker, of which 800 such jobs exist in the State of Missouri and
21,400 nationally. (Tr. 80-82.)
Counsel asked Mr. McGowan to assume that the same individual had to
avoid concentrated exposure to cold, heat, high humidity, and wetness; avoid
moderate exposure to solvents and cleaners, fumes, odors, gases, dusts, and
chemicals; and avoid all exposure to cigarette smoke. (Tr. 84.) Mr. McGowan
testified that such a person could continue to perform work as a counter clerk,
lobby attendant, and children’s attendant as such work is defined in the Dictionary
of Occupational Titles. (Tr. 88-89.)
Counsel then asked Mr. McGowan to assume the same person needed to
elevate his legs at seventy degrees for twenty percent of an eight-hour workday, to
which Mr. McGowan testified that such a condition would preclude competitive
employment. Mr. McGowan also testified that work would not be available for a
person who needed two to three breaks a day, for thirty minutes to two hours each;
or for a person who would miss work at least three days a month because of his
impairments. Mr. McGowan testified that a person could possibly miss one day a
month but may not be able to keep his job if such an absence occurred every
month. (Tr. 90-91.)
III. Medical Records Before the ALJ
Plaintiff visited Dr. Thomas A. Bragg, D.O., on January 9, 2003, with
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complaints of stomach trouble, nightmares, and joint pain in the shoulders and
elbows. Physical examination showed plaintiff to look tired but not to have any
acute pain. Dr. Bragg diagnosed plaintiff with history of irritable bowel syndrome
(IBS), anxiety, sleep deprivation, chronic arm and shoulder pain, gastroesophageal
reflux disease (GERD), and gastritis. Plaintiff was prescribed Nexium, NuLev,
and Ambien. Dr. Bragg noted that plaintiff may need to undergo upper endoscopy,
sleep studies, and testing for rheumatoid disorders if the medication regimen was
unsuccessful. (Tr. 344.)
During a general physical examination on October 16, 2003, plaintiff’s
extremities were noted to be “completely normal.” Abdominal examination was
likewise normal. Dr. Bragg prescribed Lexapro for chronic depression. (Tr. 342.)
Plaintiff visited Dr. Bragg on May 7, 2004, and reported being very tired and
having leg pain while walking. Plaintiff reported recent chest pain while moving
furniture, with such pain radiating to his left arm and left jaw. Dr. Bragg noted a
cardiac CT profile performed that same date to show significant coronary
atherosclerosis. Dr. Bragg diagnosed plaintiff with coronary artery disease (CAD)
and instructed him to take aspirin. Plaintiff was referred to cardiology for an
angiography. (Tr. 341, 366.)
Upon admission to Boone Hospital Center that same date, plaintiff was
diagnosed with acute inferior myocardial infarction, and angioplasty stenting of the
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right coronary artery was performed. Plaintiff was discharged on May 9 and was
instructed not to engage in heavy lifting or exercise for two days, and not to work
for two weeks. (Tr. 398-402.) Plaintiff underwent stent placement in the left
anterior descending coronary artery on May 19. Upon discharge, plaintiff was
instructed to avoid heavy lifting or strenuous activity for the next week, and to
resume normal activity thereafter. (Tr. 426-27.)
Plaintiff visited the Electrophysiology Clinic at the Missouri Heart Center on
June 29, 2004, with complaints of fatigue, shortness of breath, dyspnea, and
depression. Physical examination was unremarkable. Dr. Dan L. Pierce
questioned whether such symptoms were medication-related, and plaintiff’s
medications were adjusted. (Tr. 397.)
On October 1, 2004, Dr. Bragg noted plaintiff to have carpal tunnel
syndrome in both hands “badly” as well as a problem with depression. Wellbutrin
was prescribed to help with smoking cessation. It was noted that Dr. Bragg would
help with a letter to assist plaintiff in getting a grant to return to college. (Tr. 339.)
Plaintiff returned to the Electrophysiology Clinic on March 10, 2005, and
reported having no chest pain or shortness of breath but that he continued to
experience depression. It was noted that plaintiff may have carpal tunnel
syndrome. Dr. Pierce noted plaintiff’s current medications to be aspirin and
Nexium. Physical examination was unremarkable. Dr. Pierce determined
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plaintiff‘s cardiac course to be stable with no angina or heart failure. Dr. Pierce
further noted that plaintiff was “basically off of his cardiac medications because of
side effects, which have included severe fatigue and ‘sleeping all the time.’” Dr.
Pierce determined not to change plaintiff’s medication therapy, and plaintiff was
instructed to return in one year. (Tr. 396.)
Plaintiff visited Dr. Bragg on December 1, 2005, and reported having severe
fatigue during the day and never feeling rested. Plaintiff’s wife reported that he
stopped breathing in his sleep. Dr. Bragg observed plaintiff to appear very
fatigued. Dr. Bragg diagnosed plaintiff with chronic fatigue with a strong
possibility of a significant sleep disorder. (Tr. 330.) A sleep study conducted on
December 27 showed severe obstructive sleep apnea with oxygen desaturation to
seventy-nine percent. A second study was recommended for CPAP titration. (Tr.
393.)
On March 22, 2006, Dr. Bragg diagnosed plaintiff with probable IBS given
plaintiff’s symptoms of cramping and mild lower quadrant tenderness. (Tr. 327.)
An upper endoscopy performed in April showed reflux esophagitis and gastritis.
(Tr. 263-64.)
Plaintiff returned to the Electrophysiology Clinic on May 30, 2006, and
reported to Dr. Pierce that he took himself off of all cardiac and cholesterol
medications because of fatigue. Plaintiff reported that he continued to have
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problems with sleep apnea and was intolerant of all BIPAP and CPAP masks
attempted. Physical examination was unremarkable. Dr. Pierce determined
plaintiff‘s cardiac course to be stable with no angina or heart failure symptoms. It
was noted that plaintiff did not want to begin cardiac medications. Dr. Pierce
recommended that plaintiff restart a decreased dosage of baby aspirin and begin
taking Zetia. Dr. Pierce also recommended that plaintiff use nasal prongs with
oxygen supplementation given his intolerance of breathing masks. Plaintiff was
instructed to return in six months. (Tr. 384.)
On July 27, 2006, plaintiff complained to Dr. Bragg that he was
experiencing a lot of joint pain everywhere. Dr. Bragg noted plaintiff to have a lot
of pain in both thumbs and his shoulder, with decreased abduction and external
rotation. Pain in the elbows was also noted. Dr. Bragg diagnosed plaintiff with
degenerative joint disease and prescribed Celebrex. (Tr. 326.)
On October 17, 2006, plaintiff complained to Dr. Bragg that he had midback pain and stomach pain. Range of motion about the cervical and upper
thoracic spine was noted to be decreased. Muscle spasm was also noted. Dr.
Bragg diagnosed plaintiff with somatic dysfunction1 as well as allergies, chronic
1

“Somatic dysfunction” is a term of art used in the field of osteopathy and is defined as the
“[i]mpaired or altered function of related components of the somatic (body framework) system:
skeletal, arthrodial and myofascial structures, and their related vascular, lymphatic, and neural
elements.” American Ass’n of Colleges of Osteopathic Med. (AACOM), Glossary of
Osteopathic Terminology 53 (rev. Nov. 2011). “Somatic dysfunction is treatable using
osteopathic manipulative treatment.” Id.
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sinusitis, chronic sleep apnea, cephalgia, gastritis, and hyperlipidemia. Medication
was prescribed and osteopathic manipulative treatment (OMT) was given with
good results. (Tr. 323.) Continued decreased range of motion was noted on
November 14 with a noted increase in blood pressure. OMT was applied to the
thoracic and cervical spine. Plaintiff was instructed to return later in the week to
recheck his blood pressure. (Tr. 322.)
Plaintiff visited Dr. Bragg on May 24, 2007, and requested another treatment
for his back. Generalized decreased range of motion was noted about the lumbar,
thoracic, and cervical spine. Dr. Bragg also noted a shortening of the right leg
which was causing some of the low back pain. Straight leg raising was negative.
Plaintiff was diagnosed with somatic dysfunction, and OMT was given with good
results. (Tr. 316.)
Plaintiff returned to Dr. Bragg on November 29, 2007, who noted plaintiff’s
blood pressure to be high. Plaintiff reported occasional shortness of breath but
denied any chest pain. Azor was prescribed. On December 4, plaintiff reported
continued elevated blood pressure. Plaintiff was instructed to increase his dosage
of Azor. (Tr. 311.)
On January 4, 2008, plaintiff reported to Dr. Bragg that he had been out of
blood pressure medication for a while. Plaintiff currently experienced headaches,
which Dr. Bragg opined to be muscular in nature. Dr. Bragg noted some decreased
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range of motion about the cervical spine. Plaintiff was diagnosed with
hypertension and somatic dysfunction. OMT was applied with good results.
Plaintiff was prescribed Azor and was instructed to keep a close eye on his blood
pressure. (Tr. 310.)
On February 7, 2008, plaintiff was diagnosed as having a direct inguinal
hernia with examination showing a large, reducible, anterior bulge with some pain.
Dr. Bragg recommended repair as soon as possible. (Tr. 309.) On February 11,
plaintiff reported doing better but that he had recently tried to work and do some
lifting, which created “trouble” with the hernia. Plaintiff was referred for surgery.
(Tr. 308.) Upon consultation with Dr. Peter D. Perll on February 15, hernia repair
surgery was scheduled for February 29. (Tr. 383.)
On February 21, 2008, plaintiff reported to Dr. Bragg that he had been out of
his blood pressure medication for a while. (Tr. 307.)
Plaintiff visited Dr. Perll on March 10, 2008, for surgical follow up.
Plaintiff was noted to be doing well. Dr. Perll advised plaintiff that he could return
to his routine “using common sense.” Plaintiff was instructed not to engage in a
lot of repetitive bending and heavy lifting until he “let the area settle down a little
more” and was accustomed to it. (Tr. 382.)
On March 20, 2008, Dr. Bragg noted plaintiff’s blood pressure to continue to
be elevated. Plaintiff reported that he was still without medication. (Tr. 306.)
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In May 2008, plaintiff reported to Dr. Bragg that he experienced stomach
cramping. Abdominal examination was normal. Plaintiff was diagnosed with
improved hypertension, IBS, and history of gastritis. Dr. Bragg prescribed
Cymbalta for anxiety and depression, which were noted to be plaintiff’s biggest
problems due to stress caused by several domestic issues. (Tr. 304-05.)
Plaintiff visited Dr. Bragg on September 23, 2008, with complaints of
significant low back pain radiating to his right hip, leg, and foot. Plaintiff reported
that chiropractic treatment did not help. Physical examination showed tenderness
in the affected areas. Plaintiff was diagnosed with acute sciatic neuritis with
ligament strain to the right foot, probably secondary to back trouble. OMT was
given with good results, and Prednisone and Lyrica were prescribed. (Tr. 301.)
Plaintiff visited Dr. Bragg on November 18, 2008, with complaints of left
lower quadrant pain. Physical examination was positive for inguinal hernia, and
plaintiff was referred for surgery. (Tr. 300.)
On December 2, 2008, plaintiff reported to Dr. Bragg that he experienced
constant pain in his abdomen and vomited each time he ate. Examination showed
diffuse tenderness about the abdomen and epigastrium. A CT scan of the abdomen
and pelvis showed moderate-sized hiatal hernia, prominent size of the pancreatic
head with blunting of the uncinate process, diverticulosis, right inguinal canal
thickening, and small periumbilical hernia. (Tr. 299, 365.)
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In a letter to Dr. Bragg dated December 4, 2008, Dr. Philip S. McIntire
reported that his evaluation of plaintiff for lower abdominal discomfort showed a
small umbilical hernia and a left inguinal hernia, but was otherwise unremarkable.
Plaintiff exhibited no gross motor or sensory deficits during the evaluation.
Surgical repair to both hernias was recommended. (Tr. 380-81.)
An EKG performed on December 23, 2008, in preparation for hernia surgery
was normal except for evidence of left frontal branch block. (Tr. 297.)
On January 6, 2009, plaintiff reported to Dr. Bragg that he was having
stomach problems again after having stopped Nexium. Dr. Bragg recommended
that plaintiff have an MRI but plaintiff declined and requested continued treatment.
Nexium was restarted. It was noted that plaintiff was healing well after recent
hernia repair. (Tr. 296.)
Plaintiff visited Dr. Bragg in May 2009, with reports of experiencing
dizziness while working in his shop. Upon questioning and examination, Dr.
Bragg determined the symptoms to be secondary to breathing paint fumes. (Tr.
292.)
On July 13, 2009, plaintiff reported to Dr. Bragg that he experiences
shortness of breath with exertion and that it worsened the previous weekend when
he was trying to pull a boat up on a trailer. Dr. Bragg noted plaintiff’s history of
CAD and referred plaintiff to his cardiologist. (Tr. 289.)
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On that same date, plaintiff underwent a cardiology consultation with Dr.
Pierce. Plaintiff reported that he recently experienced severe shortness of breath
and dyspnea with “his usual pushing his boat off the dock.” Plaintiff reported that
such activity typically did not cause symptoms. Plaintiff also reported increasing
leg weakness and fatigue over the last two to three weeks. Dr. Pierce noted
plaintiff’s medications to include Nexium, Bystolic, Benicar, aspirin, and recent
antibiotic therapy and Decadron injection. Physical examination was
unremarkable. Dr. Pierce diagnosed plaintiff with increasing symptoms consistent
with angina, hypertension, and sleep apnea. Dr. Pierce did not change plaintiff’s
cardiac medications but instructed plaintiff to take nitroglycerin as needed. A
cardiac catheterization was scheduled for the following day. (Tr. 377-79.)
A left heart catheterization and coronary angiographic study performed on
July 14, 2009, showed an ejection fraction of over sixty percent, patent stents, and
no other significant coronary artery disease. Plaintiff was instructed to follow up
with Dr. Bragg in two to three weeks and to maintain a low fat, low cholesterol
diet. (Tr. 375-76.)
On October 6, 2009, plaintiff complained to Dr. Bragg that he was
depressed. It was noted that he had not taken any related medication for two or
three years. Plaintiff also complained of continued shoulder pain. Tenderness was
noted about the shoulders bilaterally with crepitus and decreased range of motion.
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Poor abductor strength was also noted. Dr. Bragg diagnosed plaintiff with history
of severe GERD, anxiety with depression, degenerative joint disease, chronic
allergies, and hypertension. Plaintiff was instructed to continue with his
medication for allergies, hypertension, and GERD. Citalopram and Arthrotec were
also prescribed. (Tr. 288.)
Plaintiff visited Dr. Bragg on March 8, 2010, and reported continued high
blood pressure and that he experienced constant pain “all over.” Plaintiff reported
that doing any kind of physical work for ten minutes rendered him unable to move
for several hours. Physical examination showed point tenderness almost
everywhere on the body. Some arthritic changes were noted in the hands but with
no significant swelling. Dr. Bragg diagnosed plaintiff with chronic pain – likely
fibromyalgia versus polymyalgia rheumatica. Plaintiff’s blood pressure
medication was changed, and Lyrica was prescribed. Laboratory testing was
ordered. (Tr. 285.) On April 6, plaintiff reported continued high blood pressure.
(Tr. 284.)
On August 3, 2010, plaintiff reported to Dr. Bragg that he had been out of
his blood pressure medication for several days. Plaintiff reported that his blood
pressure would be fine if he could get through his severe anxiety brought on by
domestic issues. General physical examination was normal. Dr. Bragg diagnosed
plaintiff with anxiety and hypertension, and Lexapro was prescribed. (Tr. 283.)
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Plaintiff visited Dr. Bragg on December 7, 2010, and complained of neck
pain. Range of motion about the cervical spine was noted to be generally
decreased with tenderness noted on the left side. Plaintiff was diagnosed with
somatic dysfunction, and OMT was given with good results. (Tr. 281.)
On February 7, 2011, plaintiff complained to Dr. Bragg that he had had left
shoulder pain for about two weeks and had limited use of the shoulder. Tenderness
was noted about the shoulder with such tenderness noted to worsen on abduction
and external rotation. Plaintiff was noted to have fairly good abductor strength.
No motor or sensory deficits were noted. No crepitus was noted. Plaintiff was
diagnosed with probable acute bursitis of the left shoulder, and Prednisone and
Lorcet were prescribed. (Tr. 280.)
An MRI of the left shoulder dated February 17, 2011, showed degenerative
change of the proximal humerus, displacement of the biceps tendon, degenerative
change of the acromioclavicular (AC) joint with osteophyte at the tip of the
acromion, joint effusion and fluid within the bursa, and findings consistent with
torn rotator cuff. (Tr. 275-76.)
Plaintiff visited Dr. Timothy C. Galbraith on February 22, 2011, upon
referral from Dr. Bragg for evaluation of left shoulder pain. Plaintiff reported the
pain to have developed two years prior with a gradual onset. Plaintiff reported the
pain to be aggravated by lifting his arm above his head, elevating the arm,
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strenuous activity, activities of daily living, and work. Examination of the cervical
spine/neck and right upper extremity was normal in all respects with full and
painless range of motion noted about all planes. Examination of the left upper
extremity was normal with respect to the elbow, wrist, and hand but yielded
positive results demonstrating left impingement syndrome of the shoulder,
degenerative rotator cuff tear, and AC arthritis. Surgical options were discussed.
(Tr. 439-43.)
An EKG performed on March 15, 2011, in preparation for rotator cuff
surgery yielded “completely normal” results. (Tr. 279.)
On March 18, 2011, plaintiff underwent left rotator cuff repair and left
subacromial decompression. It was noted that a longstanding torn biceps tendon
was irreparable. (Tr. 444-45.) Follow up examination on April 5 showed plaintiff
to have full passive range of motion. On June 14, plaintiff exhibited no pain. (Tr.
446, 447.)
On May 3, 2011, Dr. Trung H. Tran performed a cardiac catheterization and
stenting of a distal circumflex lesion in response to plaintiff’s complaints of
increased jaw pain and shortness of breath, worsening with exertion. It was noted
that plaintiff had otherwise been doing well with no major complaints. Chronic
100 percent occlusion of the non-dominant mid-RCA was also noted during the
procedure, but attempts to wire it were unsuccessful. (Tr. 369-74.)
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During follow up examination on May 23, 2011, Dr. Tran noted plaintiff to
be doing great and to deny any symptoms. Plaintiff reported having stopped his
medication because of all-over body aches. Plaintiff was prescribed Lovastatin
and was instructed to follow up in six months. (Tr. 367-68.)
Plaintiff returned to Dr. Tran on November 14, 2011, for follow up and
reported that he stopped taking his medication because he could not afford them.
Noting the low cost of Lovastatin, Dr. Tran provided a new prescription for the
medication. Plaintiff reported having no chest pain or shortness of breath, but his
blood pressure was noted to be very high. Plaintiff reported feeling somewhat
depressed. Plaintiff also complained of increased fatigue. Physical examination
was unremarkable. Plaintiff was diagnosed with CAD, poorly controlled
hypertension, hyperlipidemia, history of tobacco abuse, and GERD. In addition to
Lovastatin, plaintiff was prescribed Coreg and Amlodipine. (Tr. 484-86.) On
December 14, Dr. Tran noted plaintiff to be doing much better and his blood
pressure looked “great[.]” No changes were made to plaintiff’s treatment regimen.
(Tr. 487-89.)
Plaintiff was admitted to the emergency room at Boone Hospital Center on
April 23, 2012, with complaints of near syncope, vision disturbances, and transient
memory loss. A CT scan of the head showed no abnormality. A chest x-ray
showed no acute pulmonary process. ECG testing yielded abnormal results.
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Plaintiff was discharged that same date in stable and improved condition. An
electroencephalogram performed on April 25 yielded normal results. (Tr. 458-69.)
On May 3, 2012, plaintiff reported to Dr. Bragg that he continued to have
lightheadedness and visual disturbances with exertion. Physical examination was
normal in all respects. Plaintiff was diagnosed with vertigo, blurred vision, and
migraine, and medication was prescribed. (Tr. 470-71.)
Plaintiff returned to Dr. Tran on June 20, 2012, who noted plaintiff to be
doing well from a cardiac standpoint with no major problems or issues. Plaintiff
reported having memory problems since April 2012, and Dr. Tran referred him to a
neurologist. (Tr. 490-92.)
On August 8, 2012, plaintiff complained to Dr. Bragg that he had severe
back pain on the left side. Plaintiff was noted to have normal range of motion
about the cervical, thoracic, and lumbar spine with no deficits. All muscles in the
lower back were tight. Plaintiff was diagnosed with low back pain and was
prescribed Lorcet. (Tr. 472-73.) Plaintiff returned to Dr. Bragg the following day
with complaints of acute tenderness in both sacroiliac joints with muscle spasm
and very poor range of motion. Plaintiff was noted to have difficulty ambulating
because of pain. Plaintiff was prescribed Prednisone, Skelaxin, and Nucynta, and
an injection of Solu-Medrol was administered. (Tr. 474-76.)
Plaintiff visited Dr. Bragg on September 10, 2012, with questions regarding
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disability. Dr. Bragg indicated that he would write a letter outlining plaintiff’s
medical history. (Tr. 495-96.)
In a letter to plaintiff’s counsel dated September 13, 2012, Dr. Bragg wrote
that plaintiff has “a lot of degenerative lumbar disease with significant arthritis in
his hands and his shoulders,” significant allergies, and CAD with cardiac
intervention. Dr. Bragg opined:
I feel very strongly that he can no longer do his job with any type of
regularity and especially at a pace that is required for him to make a
living. I feel strongly that this gentleman is somewhat disabled and I
don’t believe his condition will improve any.
. . . [H]e can no longer do his job adequately. In fact, hard physical
labor, which is what his job entails could certainly be very detrimental
to his health.
(Tr. 494.)
On October 25, 2012, Dr. Bragg completed a Physician’s Assessment for
Social Security Disability Claim (Assessment) in which he reported plaintiff’s
diagnosed conditions to be degenerative disc disease of the cervical and lumbar
spine, CAD–post angioplasty and stent, and chronic allergies and asthma. Dr.
Bragg reported his clinical findings to include arthritic changes of the hands,
lumbar spine, and cervical spine; multiple sites of pain, joint stiffness, and
swelling; epigastric pain; chronic increased low back pain; and coronary
arteriograms showing triple vessel disease. Dr. Bragg reported plaintiff’s
symptoms to be chest pain, shortness of breath, sweatiness, and fatigue and that
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plaintiff had marked limitations of physical activity. Dr. Bragg reported that
plaintiff’s cardiac symptoms would interfere with his concentration and attention
during twenty percent of an eight-hour day. As to plaintiff’s exertional limitations,
Dr. Bragg opined that plaintiff could walk two city blocks without rest or severe
pain; could stand/walk less than two hours in an eight-hour workday; could sit
about two hours in an eight-hour workday; and would require a job that permitted
shifting positions between standing, sitting, and walking at will. Dr. Bragg opined
that plaintiff would need to take two or three unscheduled breaks during an eighthour workday and would need to rest from thirty minutes to two hours before
resuming his work. Dr. Bragg opined that plaintiff needed to elevate his legs to
seventy degrees with prolonged sitting, and would need to elevate his legs during
twenty percent of an eight-hour workday. Dr. Bragg opined that plaintiff could
occasionally lift and carry up to twenty pounds and could occasionally use his
upper extremities for reaching, pushing, and pulling; for grasping and holding; for
gross and fine manipulation; and for reaching overhead. Dr. Bragg opined that
plaintiff should never crouch or squat and should rarely twist, stoop, bend, climb
ladders, or climb stairs. Dr. Bragg further opined that plaintiff should avoid
concentrated exposure to extreme cold and heat, high humidity, and wetness; avoid
moderate exposure to climbing stairs, solvents/cleaners, fumes, odors, gases, dusts,
and chemicals; and avoid all exposure to cigarette smoke. Dr. Bragg opined that
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plaintiff needed ten to twelve hours of rest a day and would be absent from work at
least three days a month because of his impairments or treatment therefor. Dr.
Bragg stated that plaintiff experienced the reported limitations at the reported
levels since March 2011. (Tr. 497-99.)
In a Supplemental Physician’s Assessment for Social Security Disability
Claim (Supplemental Assessment) completed November 30, 2012, Dr. Bragg
addressed plaintiff’s impairments as they existed on and prior to December 30,
2008, noting that plaintiff had been diagnosed at that time with allergies, anxiety,
degenerative joint disease, shoulder pain, sleep apnea, somatic dysfunction,
hypertension, IBS, back pain, chronic gastritis, CAD, inguinal hernia, rotator cuff
tear, and carpal tunnel. Dr. Bragg reported that symptoms experienced by plaintiff
during such time included chest pain, shortness of breath, palpitations, anginaequivalent pain, and fatigue. Dr. Bragg reported that plaintiff’s cardiac symptoms
would not have interfered with his concentration and attention such that twenty
percent of an eight-hour workday would be affected. Dr. Bragg reported no weight
restrictions for plaintiff and opined that he would not have been limited to less than
six hours standing and walking during said period. Dr. Bragg opined that plaintiff
would likely have required unscheduled breaks during an eight-hour workday, but
would not have needed two to three such breaks at thirty minutes to two hours
each. Dr. Bragg opined that plaintiff would not have needed to elevate his legs on
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or prior to December 31, 2008. Finally, Dr. Bragg reported that plaintiff’s
impairments or treatment therefor would have resulted in plaintiff being absent
from work twice a month. (Tr. 501-02.)
IV. Additional Evidence Considered by the Appeals Council2
X-rays dated October 25, 2012, showed mild degenerative changes of the
right hip, minimal degenerative changes of the left hip, and minimal degenerative
changes of the pelvis. (Tr. 509-10.) X-rays of the lumbar spine showed lumbar
spondylosis with mild disc space narrowing, facet arthropathy, and slight anterior
spondylolisthesis at L4-L5. (Tr. 511.) X-rays of the sacroiliac joints were
unremarkable. (Tr. 512.)
An MRI of the lumbar spine dated March 6, 2013, showed spinal canal
stenosis at L4-5 associated with annular bulge, anterolisthesis and posterior
hypertrophic changes, lateral annular bulge at L2-3 and L3-4 with foraminal
encroachment, and signal changes at L4-5 possibly associated with degenerative
changes or stress response secondary to facet arthropathy. (Tr. 513-14.)
V. The ALJ's Decision
The ALJ found that plaintiff last met the insured status requirements of the
2

The following evidence was not before the ALJ at the time of her decision but was submitted to
and considered by the Appeals Council on plaintiff’s request to review the ALJ’s decision.
Because the Appeals Council considered this additional evidence in denying review, the Court
must consider it in determining whether the ALJ's decision was supported by substantial
evidence. Frankl v. Shalala, 47 F.3d 935, 939 (8th Cir. 1995); Richmond v. Shalala, 23 F.3d
1441, 1444 (8th Cir. 1994).
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Social Security Act on December 31, 2008. The ALJ found that plaintiff had not
engaged in substantial gainful activity during the period from October 14, 2005,
through December 31, 2008, the date last insured. The ALJ found that plaintiff’s
CAD, status post myocardial infarction and stent placement, bilateral carpal tunnel
syndrome, and obstructive sleep apnea were severe impairments through the date
last insured, but that plaintiff did not have an impairment or combination of
impairments that met or medically equaled an impairment listed in 20 C.F.R. Part
404, Subpart P, Appendix 1. (Tr. 13-16.) The ALJ found that, through December
31, 2008, plaintiff had the residual functional capacity (RFC) to perform light
work3 except that he could perform
no overhead reaching; no more than occasional climbing of ramps and
stairs; no climbing of ladders, ropes or scaffolds; and only occasional
balancing. Furthermore, the claimant needed to alternate between
sitting, standing and walking every 45 minutes at will; could less than
frequently grip and grasp with one hand; and needed to avoid
temperature extremes.
(Tr. 17.)
The ALJ found plaintiff unable to perform any past relevant work through
December 31, 2008. Considering plaintiff’s age, education, work experience, and
RFC, the ALJ determined that vocational expert testimony supported a finding
that, through December 31, 2008, plaintiff could perform other work existing in
3

“Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying
of objects weighing up to 10 pounds. . . . [A] job is in this category when it requires a good deal
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significant numbers in the national economy, and specifically, film processing
clerk, lobby attendant, and children’s attendant. The ALJ therefore found that
plaintiff was not under a disability from October 14, 2005, through December 31,
2008. (Tr. 23-25.)
VI. Discussion
A claimant seeking DIB under Title II of the Social Security Act must
establish a disability that existed prior to the expiration of his insured status.
Martonik v. Heckler, 773 F.2d 236, 238 (8th Cir. 1985). 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 which has lasted or can be expected to last for a
continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). An
individual will be declared disabled "only if his physical or mental impairment or
impairments are of such severity that he is not only unable to do his previous work
but cannot, considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national economy." 42
U.S.C. § 423(d)(2)(A).
To determine whether a claimant is disabled, the Commissioner engages in a
five-step evaluation process. See 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482
of walking or standing, or when it involves sitting most of the time with some pushing and
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U.S. 137, 140-42 (1987). The Commissioner begins by deciding whether the
claimant is engaged in substantial gainful activity. If the claimant is working,
disability benefits are denied. Next, the Commissioner decides whether the
claimant has a “severe” impairment or combination of impairments, meaning that
which significantly limits his ability to do basic work activities. If the claimant's
impairment(s) is not severe, then he is not disabled. The Commissioner then
determines whether claimant's impairment(s) meets or equals one of the
impairments listed in 20 C.F.R., Subpart P, Appendix 1. If claimant's
impairment(s) is equivalent to one of the listed impairments, he is conclusively
disabled. At the fourth step, the Commissioner establishes whether the claimant
can perform his past relevant work. If so, the claimant is not disabled. Finally, the
Commissioner evaluates various factors to determine whether the claimant is
capable of performing any other work in the economy. If not, the claimant is
declared disabled and becomes entitled to disability benefits.
The decision of the Commissioner must be affirmed if it is supported by
substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v.
Perales, 402 U.S. 389, 401 (1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir.
2002). Substantial evidence is less than a preponderance but enough that a
reasonable person would find it adequate to support the conclusion. Johnson v.
pulling of arm or leg controls.” 20 C.F.R. § 404.1567(b).
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Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). This “substantial evidence test,”
however, is “more than a mere search of the record for evidence supporting the
Commissioner’s findings.” Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007)
(internal quotation marks and citation omitted). “Substantial evidence on the
record as a whole . . . requires a more scrutinizing analysis.” Id. (internal quotation
marks and citations omitted).
To determine whether the Commissioner's decision is supported by
substantial evidence on the record as a whole, the Court must review the entire
administrative record and consider:
1.

The credibility findings made by the ALJ.

2.

The plaintiff's vocational factors.

3.

The medical evidence from treating and consulting physicians.

4.

The plaintiff's subjective complaints relating to exertional and
non-exertional activities and impairments.

5.

Any corroboration by third parties of the plaintiff's
impairments.

6.

The testimony of vocational experts when required which is
based upon a proper hypothetical question which sets forth the
claimant's impairment.

Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir.
1992) (internal citations omitted). The Court must also consider any evidence
which fairly detracts from the Commissioner’s decision. Coleman, 498 F.3d at
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770; Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999). However, even
though two inconsistent conclusions may be drawn from the evidence, the
Commissioner's findings may still be supported by substantial evidence on the
record as a whole. Pearsall, 274 F.3d at 1217 (citing Young v. Apfel, 221 F.3d
1065, 1068 (8th Cir. 2000)). “[I]f there is substantial evidence on the record as a
whole, we must affirm the administrative decision, even if the record could also
have supported an opposite decision.” Weikert v. Sullivan, 977 F.2d 1249, 1252
(8th Cir. 1992) (internal quotation marks and citation omitted); see also Jones ex
rel. Morris v. Barnhart, 315 F.3d 974, 977 (8th Cir. 2003).
The predominant issue in this case is whether plaintiff was disabled by his
impairments before his insured status expired on December 31, 2008. See
Martonik, 773 F.2d at 238. Plaintiff claims that the medical opinions expressed by
Dr. Bragg in his November 2012 Supplemental Assessment showed plaintiff to be
so disabled during this period, but that the ALJ wholly failed to consider this
opinion evidence in her written decision. Plaintiff contends that the ALJ’s failure
to consider this opinion evidence from a treating physician runs afoul of the
Regulations and constitutes error inasmuch as such evidence addressed the effects
of plaintiff’s impairments during the relevant period. For the following reasons,
the matter will be remanded for consideration of this opinion evidence.
In her written decision, the ALJ summarized plaintiff’s testimony and the
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medical records detailing plaintiff’s impairments and treatment therefor for the
period prior to December 31, 2008, and thereafter. The ALJ also reviewed the
opinions rendered by Dr. Bragg in September and October 2012 and determined to
accord them less than controlling weight because they addressed plaintiff’s thencurrent abilities, which was at a time well after the expiration of plaintiff’s insured
status on December 31, 2008. (See Tr. 22.) Indeed, the ALJ noted Dr. Bragg’s
statement in the October 2012 Assessment that plaintiff did not first experience the
opined limitations until March 2011. (Id.) However, as noted by the plaintiff, the
ALJ wholly failed to address the November 2012 Supplemental Assessment
completed by Dr. Bragg, although it was submitted to the ALJ prior to her decision
and was a part of the administrative record before the ALJ. (See Tr. 30.)4
An ALJ must explain the weight given to opinions from treating sources,
non-treating sources, and non-examining sources. 20 C.F.R. § 404.1527(e)(2)(ii).
By explaining the weight given to medical source opinions, an ALJ both complies
with the Regulations and assists the Court in reviewing the decision. See
Willcockson v. Astrue, 540 F.3d 878, 880 (8th Cir. 2008). In circumstances where
4

Plaintiff contends that it is unclear whether the administrative record contained this
Supplemental Assessment at the time the ALJ rendered her decision in December 2012. Given
plaintiff’s averment that he submitted this evidence to the ALJ prior to her decision (Pltf.’s Brief,
Doc. #26 at p. 12) and the inclusion of such evidence on the ALJ’s List of Exhibits (Tr. 30,
“Physical RFC Assessment, Subsequent to Hearing, Dr. Thomas Bragg, 11/30/2012”), the
undersigned concludes that the administrative record before the ALJ at the time of her decision
contained this Supplemental Assessment.
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a medical source opinion may affect the outcome of a case, substantial evidence
does not support an ALJ's adverse decision if it cannot be determined what, if any,
weight the ALJ afforded the opinion. McCadney v. Astrue, 519 F.3d 764, 767 (8th
Cir. 2008); see also Woods v. Astrue, 780 F. Supp. 2d 904, 913-14 (E.D. Mo.
2011); Powell v. Colvin, No. 4:12 CV 1996 DDN, 2014 WL 1057310, at *12 (E.D.
Mo. Mar. 14, 2014).
Here, there is no dispute that the ALJ did not address Dr. Bragg’s November
2012 Supplemental Assessment in her decision. As such, this Court is unable to
determine what, if any, weight the ALJ afforded the opinion. While the
Supplemental Assessment contained opinions regarding plaintiff’s exertional
limitations that were consistent with the ALJ’s RFC finding that plaintiff could
perform light work, it also contained an opinion that plaintiff’s impairments caused
him to miss work twice a month – a limitation that the vocational expert testified
would preclude the performance of any work. Because the extent to which the
ALJ may credit or discredit Dr. Bragg’s November 2012 Supplemental Assessment
may affect the outcome of this case, the ALJ’s failure to address this Supplemental
Assessment and explain the weight given to it renders her decision of nondisability unsupported by substantial evidence. The “primary difficulty is not with
the possibility that the ALJ discounted [the] opinion[;] . . . the problem with the
ALJ’s opinion is that it is unclear whether the ALJ did discount [the] opinion, and,
- 33 -

if it did so, why.” McCadney, 519 F.3d at 767 (internal citation omitted; emphasis
in McCadney).
The ALJ’s failure to address Dr. Bragg’s Supplemental Assessment is
particularly significant here inasmuch as the only reason articulated by the ALJ for
according little weight to Dr. Bragg’s September and October 2012 opinions was
that they did not address plaintiff’s impairments or limitations as they existed on or
prior to December 31, 2008. Dr. Bragg’s November 2012 Supplemental
Assessment, however, did precisely that.
Accordingly, the matter will be remanded to the Commissioner for
consideration of Dr. Bragg’s November 2012 Supplemental Assessment. Upon
such consideration, the ALJ shall weigh this treating physician’s opinion in
accordance with the Regulations; explain such weight in her written decision; and,
in the event she determines not to accord controlling weight to the opinion, shall
provide good reasons that are supported by substantial evidence on the record for
according it less than controlling weight. See 20 C.F.R. § 404.1527(c). The ALJ
shall consider all relevant evidence of record in determining what weight to accord
Dr. Bragg’s Supplemental Assessment, including evidence of the December 2005
sleep study that showed plaintiff to suffer from severe obstructive sleep apnea and
evidence of plaintiff’s chronic fatigue relating to this impairment as well as to

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medication side effects.5
In view of the present status of this case, it would be premature for this
Court to determine whether the assistance of a medical advisor is required to
render an opinion as to the onset of disability. Accord Grebenick v. Chater, 121
F.3d 1193, 1200-01 (8th Cir. 1997) (opinion from medical advisor is required if the
existing medical evidence is ambiguous as to whether a disability may have begun
prior to the expiration of plaintiff’s insurance status). The Court therefore declines
to address plaintiff’s claim to the extent he argues that the ALJ erred in failing to
obtain such assistance.
Therefore, for all of the foregoing reasons,
IT IS HEREBY ORDERED that the decision of the Commissioner is
REVERSED, and this cause is REMANDED to the Commissioner for further
proceedings consistent with this opinion.
A separate Judgment in accordance with this Memorandum and Order is
entered this same date.
_/s/Terry I. Adelman________________
UNITED STATES MAGISTRATE JUDGE

Dated this __10th day of __September, 2014.
5

In her decision, the ALJ acknowledged that plaintiff was diagnosed with sleep apnea but stated
that the evidence did “not show that the claimant underwent a sleep study prior to his date last
insured” or experienced “significant problems caused by this impairment[.]” (Tr. 20.) Because a
review of the record shows the contrary, the ALJ is advised upon remand to re-review the
medical and other evidence of record in determining plaintiff’s disability status.
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