Liffick v. Colvin

Filing 25

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the relief which Liffick seeks in her Complaint and Brief in Support of Plaintiffs Complaint is GRANTED in part and DENIED in part. [Docs.1, 16.] IT IS FURTHER ORDERED that the Commissioners decision of October 24, 2012 is REVERSED and REMANDED for a consultative examination and new residual functional capacity and credibility determinations. IT IS FURTHER ORDERED that a Judgment of Reversal and Remand will be filed contemporaneously with this Memorandum and Order remanding this case to the Commissioner of Social Security for further consideration pursuant to 42 U.S.C. § 405(g), sentence 4. Signed by Magistrate Judge Nannette A. Baker on 11/6/14. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

RITA A. LIFFICK,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No. 2:14-CV-10 NAB

MEMORANDUM AND ORDER
The following opinion is intended to be the opinion of the Court judicially reviewing the
denial of Rita Liffick’s (“Liffick”) application for supplemental security income (“SSI”) under
the Social Security Act. The Court has jurisdiction over the subject matter of this action under
42 U.S.C. § 405(g). The parties have consented to the exercise of authority by the United States
Magistrate Judge pursuant to 28 U.S.C. § 636(c). [Doc. 9.] The Court has reviewed the parties’
briefs and the entire administrative record, including the hearing transcript and the medical
evidence. The Court has now heard oral argument on the pleadings of the parties and the Court
now issues its ruling in this opinion. Based on the following, the Court will reverse and remand
the Commissioner’s decision.
I.

Issue for Review
Plaintiff presents several issues for review. First, she contends that the administrative

law judge’s (“ALJ”) residual functional capacity (“RFC”) determination is not supported by any
evidence in the record as a whole.

Second, Plaintiff contends that the ALJ’s credibility

determination was patently erroneous, by failing to consider her lack of access to medical

treatment. Third, Plaintiff states that the ALJ failed to conduct a proper analysis regarding her
pain. Fourth, she contends that the ALJ failed to properly examine the effects of morbid obesity
on her ability to perform work related functions. The Commissioner asserts that substantial
evidence in the record as a whole supports the decision.
II.

Standard of Review
This Court reviews decisions of the ALJ to determine whether the decision is supported

by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). Substantial evidence is
less than a preponderance but is enough that a reasonable mind would find it adequate to support
the Commissioner’s conclusion.” Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002).
See also Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007). Therefore, even if a court finds that
there is a preponderance of the evidence against the ALJ’s decision, the ALJ’s decision must be
affirmed if it is supported by substantial evidence. Clark v. Heckler, 733 F.2d 65, 68 (8th Cir.
1984). To determine whether the Commissioner’s final decision is supported by substantial
evidence, the Court is required to review the administrative record as a whole and to consider:
(1) The findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating physicians;
(4) The subjective complaints of pain and description of the claimant’s physical
activity and impairment;
(5) The corroboration by third parties of the claimant’s physical impairment;
(6) The testimony of vocational experts based upon proper hypothetical questions
which fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dept. of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980).

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III.

Discussion
A.

RFC Determination

In this case, the Court finds that the ALJ’s disability determination is not supported by
substantial evidence in the record as a whole. RFC is a medical question. Eichelberger v.
Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). The RFC is defined as what the claimant can do
despite his or her limitations, and includes an assessment of physical abilities and mental
impairments. 20 C.F.R. § 416.945(a). The RFC is a function-by-function assessment of an
individual’s ability to do work related activities on a regular and continuing basis.1 SSR 96-8p,
1996 WL 374184, at *1 (July 2, 1996). It is the ALJ’s responsibility to determine the claimant’s
RFC based on all relevant evidence, including medical records, observations of treating
physicians and the claimant’s own descriptions of his limitations. Pearsall v. Massanari, 274
F.3d 1211, 1217 (8th Cir. 2001). An RFC determination made by an ALJ will be upheld if it is
supported by substantial evidence in the record. See Cox v. Barnhart, 471 F.3d 902, 907 (8th
Cir. 2006).
“A disability claimant has the burden to establish her RFC.” Eichelberger, 390 F.3d at
591 (citing Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir. 2004)). However, the ALJ has an
independent duty to develop the record despite the claimant’s burden. Stormo v. Barnhart, 377
F.3d 801, 806 (8th Cir. 2004). “Some medical evidence must support the determination of the
claimant’s RFC.” Eichelberger, 390 F.3d at 591 (citing Dykes v. Apfel, 223 F.3d 865, 867 (8th
Cir. 2000)) (internal quotation marks omitted). “[T]he ALJ should obtain medical evidence that
addresses the claimant’s ‘ability to function in the workplace.’” Id. (quoting Nevland v. Apfel,
204 F.3d 853, 858 (8th Cir. 2003)).

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A “regular and continuing basis” means 8 hours a day, for 5 days a week, or an equivalent work schedule. SSR
96-8p, 1996 WL 374184, at *1.

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The ALJ found that Liffick had the severe impairments of morbid obesity, history of
lower extremity edema, irritable bowel syndrome and bilateral knee meniscus tears with repair of
left knee tear. (Tr. 13.) Then, the ALJ determined that based on the evidence in the record as a
whole that Liffick had the RFC to perform the full range of sedentary work. (Tr. 14.) Sedentary
work “involves lifting no more than 10 pounds at a time and occasionally lifting and carrying
articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one
which involves sitting, a certain amount of walking and standing is often necessary in carrying
out job duties. Jobs are sedentary if walking and standing are required occasionally.” 20 C.F.R.
§ 416.967(a). The ALJ determined that Liffick can push and pull within lifting limitations; only
frequently operate bilateral foot controls; occasionally climb ramps, stairs, ladders, ropes, and
scaffolds; and occasionally bend, stoop, kneel, crouch, and crawl. (Tr. 14.)
Based on the evidence in the record as a whole, the Court finds that the ALJ’s RFC
finding is not supported by substantial evidence. There is no evidence in the record regarding
Liffick’s ability to perform work related functions on a regular and continuing basis.2 The RFC
determination in this case is highly speculative. The ALJ’s decision speculates, without any
medical support from the record, that if Liffick has the same surgery on her right knee as her left
knee, she is likely to receive the same level of relief that she received from a prior surgery, her
condition is likely to be “correctible,” and therefore she is not currently disabled. (Tr. 16.) An
ALJ cannot speculate that a future surgery will have the same results as a previous surgery and
use that to determine a claimant’s RFC. At the time of the decision, Liffick had not had the

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The ALJ refers to and substantially adopts a RFC determination by a single decision maker, who is not a physician
and only reviewed Liffick’s medical records. (Tr. 17.) Single decision makers’ opinions are not acceptable medical
sources entitled to the same consideration as medical consultants under the Social Security regulations. See 20
C.F.R. § 416.913. The Court notes that, whatever weight the ALJ gave to the RFC determination, it is not supported
by substantial evidence in the record.

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surgery on her right knee and was unable to do so, because of lack of insurance. Although
Liffick’s RFC may improve upon completion of her right knee surgery, it is not guaranteed.
Moreover, the ALJ has a duty to fully develop the record. Smith v. Barnhart, 435 F.3d
926, 930 (8th Cir. 2006) (citation omitted). In some cases, this duty requires the ALJ to obtain
additional medical evidence, such as a consultative examination of the claimant, before rendering
a decision. See 20 C.F.R. § 416.919a(b). Considering Liffick’s current right knee injury, which
requires surgical repair, in combination with her morbid obesity and edema, the Court finds that
a consultative examination was necessary in this matter. There was not enough evidence in the
record to determine Liffick’s current residual functional capacity. Therefore, the Court will
remand this action so that the ALJ can make a new RFC determination regarding Liffick’s
physical impairments consistent with this opinion.
B.

Credibility Determination

Next, the Court finds that the credibility determination was not supported by substantial
evidence. In considering subjective complaints, the ALJ must fully consider all of the evidence
presented, including the claimant’s prior work record, and observations by third parties and
treating examining physicians relating to such matters as:
(1) The claimant’s daily activities;
(2) The subjective evidence of the duration, frequency, and intensity of the claimant’s
pain;
(3) Any precipitating or aggravating factors;
(4) The dosage, effectiveness, and side effects of any medication; and
(5) The claimant’s functional restrictions.
Polaski v. Heckler, 725 F.2d 1320, 1322 (8th Cir. 1984). It is not enough that the record contains
inconsistencies; the ALJ is required to specifically express that he or she considered all of the
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evidence. Id. “Although an ALJ may not discredit a claimant’s subjective pain allegations
solely because they are not fully supported by objective medical evidence, an ALJ is entitled to
make a factual determination that a claimant’s subjective pain complaints are not credible in light
of objective medical evidence to the contrary.” Gonzales v. Barnhart, 465 F.3d 890, 895 (8th
Cir. 2006).
In this case, the ALJ improperly discounted Liffick’s credibility. Liffick’s complaints of
pain and allegations regarding the functional limitations caused by her injuries are not
inconsistent with the medical evidence of record. For example, the ALJ improperly discredited
Liffick’s need to elevate her legs due to edema. (Tr. 15-16.) The medical evidence indicates that
Liffick’s edema is a chronic condition that improves and worsens at various intervals. Her
doctors have indicated in the medical records that she would need to elevate her legs, including
as recently as September 2012, just before the ALJ’s decision. (Tr. 403, 847-848.)
Further, the ALJ improperly discounted Liffick’s credibility based on her failure to obtain
right knee surgery. All of the evidence in record indicates that Liffick has received consistent
treatment for all of her impairments for several years. Liffick was scheduled to have the right
knee surgery and the surgery was canceled on the morning it was scheduled, because her
Medicaid coverage had ended. (Tr. 814-815.) “Clearly, if the claimant is unable to follow a
prescribed regimen of medication and therapy to combat her disabilities because of financial
hardship, that hardship may be taken into consideration when determining whether to award
benefits.” Murphy v. Sullivan, 953 F.2d 383, 386 (8th Cir. 1992) (citing Tome v. Schweiker, 724
F.2d 711, 714 (8th Cir. 1984)). Liffick continues to receive treatment for her conditions from
free medical services, but there is no evidence in the record to suggest that surgery on her right
knee would be covered by free medical services. Liffick was denied the necessary medical

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treatment on her right knee due to lack of insurance or other financial means. Cf. Brown v.
Barnhart, 390 F.3d 535, 540 (8th Cir. 2004)(record shows claimant had access to medication and
treatment, which was inconsistent with her claim that a lack of financial sources caused her noncompliance with prescribed treatment). The evidence in the record as a whole demonstrates that
the ALJ’s credibility determination is not supported by substantial evidence and the Court will
reverse and remand for a new credibility determination.
IV.

Conclusion
Based on the foregoing, the Court finds that the Commissioner’s decision is not

supported by substantial evidence on the record as a whole. The Court has the power to “enter,
upon the pleadings and transcript of the record, a judgment, affirming, modifying, or reversing
the decision of the Commissioner of Social Security, with or without remanding the cause for a
rehearing.” 42 U.S.C. § 405(g). When a claimant appeals from the Commissioner’s denial of
benefits and the denial is improper, out of an abundant deference to the ALJ, the Court remands
the case for further administrative proceedings. Buckner v. Apfel, 213, F.3d 1006, 1011 (8th Cir.
2000). Upon remand, the ALJ should obtain a consultative examination regarding Liffick’s
physical impairments and render new RFC and credibility determinations.
IT IS HEREBY ORDERED that the relief which Liffick seeks in her Complaint and
Brief in Support of Plaintiff’s Complaint is GRANTED in part and DENIED in part. [Docs.
1, 16.]
IT IS FURTHER ORDERED that the Commissioner’s decision of October 24, 2012 is
REVERSED and REMANDED for a consultative examination and new residual functional
capacity and credibility determinations.

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IT IS FURTHER ORDERED that a Judgment of Reversal and Remand will be filed
contemporaneously with this Memorandum and Order remanding this case to the Commissioner
of Social Security for further consideration pursuant to 42 U.S.C. § 405(g), sentence 4.
Dated this 6th day of November, 2014.
/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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