Green v. Commissioner of Social Security

Filing 22

MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that the final decision of the Commissioner denying Plaintiff's application for disability benefits under Title II and Title XVI of the Social Security Act is REVERSED and this cause is REMANDED for further proceedings consistent with this Memorandum and Order. A separate Judgment shall accompany this Memorandum and Order. Signed by Magistrate Judge John M. Bodenhausen on 8/17/2015. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
ANNA L. GREEN,
Plaintiff,
v.
CAROLYN COLVIN,
Acting Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

2:14 CV 00076 JMB

MEMORANDUM AND ORDER
Anna L. Green (“Plaintiff”) appeals the final decision of the Commissioner of Social
Security (“Commissioner”) denying her applications for Disability Insurance Benefits (“DIB”)
and Supplemental Security Income (“SSI”) under the Social Security Act (the “Act”) (42 U.S.C.
§401 et seq). This Court has jurisdiction over the matter pursuant to the judicial review
provisions of the Act at 42 U.S.C. §§ 405(g) and 1381(c)(3), along with the consent of the
parties, under 28 U.S.C. §636(c). Because the final decision of the Commissioner is not
supported by substantial evidence as explained below, the decision is reversed and remanded.
I.

Procedural Background
The Plaintiff in this case is a fifty year-old female with an 11th grade education and past

work as a certified nursing aide (“CNA"). (Tr. 1 43-44) She alleges disability due to back pain,
migraines, diabetes, Chronic Obstructive Pulmonary Disease (“COPD”), obstructive sleep apnea,
left ventricular hypertrophy, anxiety, depression, bipolar disorder and obesity. (ECF No. 14 at 1)
Plaintiff applied for disability benefits on June 28, 2011. (Tr. 147-54) Both her DIB and
SSI applications were denied on August 16, 2011. (Tr. 78-80) Thereafter, Plaintiff requested a
hearing before an administrative law judge (“ALJ”) to contest the denial. On April 11, 2013, the
1

“Tr.” refers to the administrative record filed in this case by the Defendant. (ECF No. 13-1 through 13-13)

1

ALJ held a hearing at which the Plaintiff appeared and testified, along with a vocational expert
(“VE”); the Plaintiff was represented by counsel at the hearing. (Tr. 38-72) On May 5, 2013,
the ALJ issued his decision in the case, finding that the Plaintiff was not disabled. (Tr. 8-29) On
July 18, 2013, the Plaintiff petitioned for review of the ALJ’s decision; but on June 11, 2014, the
Appeals Council denied review of the ALJ’s determination. (Tr. 6-7, 1-5) Thus, the July 18,
2013 decision of the ALJ is the final decision of the Commissioner, and the case is ready for
disposition in this Court.
II.

Medical Evidence Before the ALJ 2
The Plaintiff’s alleged disability onset date is April 5, 2010. (Tr. 147, 149) As

mentioned above, the Plaintiff alleges disability due to back pain, migraines, diabetes, COPD,
obstructive sleep apnea, left ventricular hypertrophy, anxiety disorder, depressive disorder,
bipolar disorder and obesity. (ECF No. 14 at 1)
The Plaintiff’s documented problems began in May of 2008, when she was seen at the
Community Health Center (“CHC”) for complaints of headache and back pain. (Tr. 404) CHC
prescribed medication for her reported difficulties related to sleeping, leg, and back pain, and
medication for general depression and anxiety. (Tr. 383-403) On October 27, 2009, the Plaintiff
was seen at CHC for medication refills relating to her back pain. (Tr. 393)
Over time, the Plaintiff was also seen for her other ailments. For example, on November
13, 2009, the Plaintiff saw Frank Froman, EDD, at Psychology Associates Inc. for a Mental
Status Exam. (Tr. 423) Dr. Froman concluded that the Plaintiff suffered from very mild
depression and that her difficulties “[did] not seem limited to any significant degree by any
psychological problems.”
2

The Court has reviewed the entirety of the medical record; but because the Court is remanding this case to
more fully develop the record concerning the Residual Functional Capacity (“RFC”), the Court will focus its
discussion on medical evidence that factored into the RFC.

2

On February 16, 2010, and June 4, 2010, the Plaintiff returned for treatment to CHC, this
time for examinations of her heart and lungs, which were normal. She also reported intermittent
headaches at this time. (Tr. 384-88) Her treatment for chest pains included X-rays and stress
echocardiograms at the Hannibal Free Clinic in October of 2010. (487-495) Many of these tests,
however, turned out normal, and the Plaintiff was advised to diet. (Tr. 585)
On February 2, 2011, the Plaintiff began to see Erik Meidl, M.D., at the Hannibal Clinic.
(Tr. 519-22) Dr. Meidl noted that the Plaintiff was “doing well” except for “shortness of breath”
and “low back pain radiating across her low back.” (Tr. 519) Plaintiff continued to visit the
Hannibal Clinic regularly over the following months. (Tr. 794) Plaintiff saw Dr. Meidl mainly
for lower back pain issues.
Early in 2011, diagnostic imaging showed degenerative changes in the Plaintiff’s L3-L4,
L4-L5, and L5-S1 vertebrae, and epidural fat causing canal stenosis at L4-L5 and L5-S1. (Tr.
511-14) In treating the Plaintiff for these problems, Dr. Meidl repeatedly advised her to stop
drinking alcohol and begin weight loss therapy. (Tr. 524, 532, 538) He also prescribed an
epidural injection to treat the back pain which the Plaintiff initially refused, and for which
Plaintiff’s insurance refused to pay in any event. (Tr. 538, 785)
In August of 2011, the Plaintiff was still complaining about low back pain. (Tr. 776-77)
By October of that year, after the Plaintiff’s insurance refused to cover the cost of epidural
injections, Dr. Meidl was prescribing Vicodin to help the pain. (Tr. 785) The Plaintiff saw Dr.
Meidl again on November 11, 2011 for ongoing back pain. She said that the Vicodin was
helping with the pain, but made her somewhat sleepy. (Tr. 792) The final time that the Plaintiff
visited the Hannibal Clinic in 2011 was on December 5, when she asked if the doctor could
arrange for her to get assistance with her housework. (Tr. 794)

3

On November 11, 2011, Dr. Meidl completed a Medical Source Statement of Ability to
do Work-Related Activities (Physical) on behalf of the Plaintiff. (Tr. 638-42) Dr. Meidl opined
that the Plaintiff had the following restrictions: she could (1) lift 10 pounds occasionally; (2)
frequently lift and carry less than 10 pounds; (3) stand and/or walk less than two hours in an
eight-hour workday; she must (4) periodically alternate sitting and standing; and (5) she could
never crouch, crawl or stoop. (Tr. 638-40) The record contains no evidence of any complaints
or treatments from December 2011 until May 2012. On May 3, 2012, she reported that her back
pain improved with Vicodin, and said that her breathing was doing well. (Tr. 798)
On September 14, 2012, she reported substantial back pain that worsened when she lifted
objects weighing 10-15 pounds. (Tr. 803-07) The Plaintiff also reported leg swelling, and that
she needed an inhaler to walk up a hill; she also reported some pain in her knees when walking,
generalized mild aches in upper extremities, and mild pain in the posterior thigh and buttocks on
straight leg raising. (Id.) Dr. Meidl noted that, while the Plaintiff could not return to her past
work as a CNA, she could do a desk job that would let her get up and stretch periodically. (Tr.
806) On October 18, 2012, the Plaintiff saw Dr. Meidl again, and reported that her back pain
was better and that she was tolerating the pain without any side effects of the increased dosage of
medication. (Tr. 810)
On March 5, 2013, Dr. Meidl completed a second MSS of Ability to do Work-Related
Activities (Physical) that differed from his first MSS in one critical matter: her ability to sit. (Tr.
832-35) In this MSS, Dr. Meidl opined that the Plaintiff could: (1) lift 10 pounds occasionally;
(2) frequently lift and carry 10 pounds; (3) stand and/or walk at least 2 hours in an 8-hour

4

workday; (4) sit less than 6 hours in an 8-hour workday with normal breaks 3; and (5)
occasionally climb, balance, kneel, crouch, crawl and stoop. (Id.) He further noted that the
Plaintiff has spinal stenosis at L4-L5 and L5-SI, and that the Plaintiff is limited by low back pain
and knee pain. (Id.) (emphasis supplied)
Also before the ALJ was third party evidence submitted by two friends of the Plaintiff in
October of 2011. (Tr. 630-37) Both friends reported that the Plaintiff had a bad back and
suffered from high stress. However, they had different opinions on how much the Plaintiff could
lift—one felt she could only lift five pounds, while the other felt she could lift 25 pounds.
Finally, the evidence before the ALJ included the record of the April 11, 2013 hearing at
which both the Plaintiff and a VE testified. The Plaintiff testified to her ongoing physical
symptoms. In addition to her back pain, she described issues relating to migraine headaches,
shoulder and knee pain, as well as COPD and diabetes.
As it specifically relates to her back pain, and the ability to sit and stand, the Plaintiff
testified that she has lower and upper back pain that “shoots down at [the] knees” and the “back
of [her] legs.” (Tr. 48) Plaintiff testified that she can only stand and do activities like washing
dishes for “about 15 minutes;” and that she can only sit for “about five or ten minutes” before the
pain gets too bad and she has to stand up. (Id. 48-49) The Plaintiff described the pain of sitting
for more than five or ten minutes as a “stabbing and burning” pain. (Id.)
The Plaintiff also testified regarding her medications, the side effects those medications
have on her, and the mental impairments that she claims contribute to her inability to work. (Tr.
53-55) Finally, she testified regarding her alcohol consumption, evidence of marijuana usage,
and her daily activities. (Tr. 56-58)
3

A State agency decision maker also found that Plaintiff could only sit for less than 6 hours. (Tr. 457-62)
Although the ALJ did not rely on that information at all—and properly so, because the decision maker was not a
medical professional—the Court does find it relevant that the agency agreed Plaintiff can sit for less than 6 hours.

5

The VE, meanwhile, testified that someone with the Residual Functional Capacity
(“RFC”) found by the ALJ, combined with the Plaintiff’s past work experience, age, and
education, could not perform the Plaintiff’s previous work as a CNA; but such a person could
perform jobs such as (1) hand assembler, (2) machine tender, or (3) table worker. (Tr. 67-68) 4
III.

The ALJ’s Decision
The ALJ’s decision in this case followed the familiar five step analysis to determine

disability status. At Step One, the ALJ found that Plaintiff was not engaged in substantial gainful
activity (“SGA”) since she allegedly became disabled. (Tr. 13) At Step Two, he found that the
Plaintiff had the following severe impairments:
• Lumbar spine degenerative changes;
• Diabetes;
• Asthma/COPD;
• Obstructive sleep apnea;
• Hyperlipidemia;
• Hypercholesterolemia;
• Left Ventricular Hypertrophy;
• Hypertension;
• Anxiety, Depressive, and Bipolar disorders;
• Substance Abuse; and
• Obesity
(Tr. 13)
At Step Three, the ALJ found that Plaintiff had not met her burden to prove that she
suffered from any impairment or combination of impairments that would indicate presumptive
disability. (Tr. 14) Then, the ALJ undertook his duty to evaluate and formulate an RFC for the
Plaintiff so that he could proceed to a Step Four analysis of whether she was capable of returning
to her previous work. Ultimately, the ALJ found that the Plaintiff had the following RFC:
To lift/carry up to 10 pounds occasionally. She can sit up to six hours but must be
allowed the opportunity to stand and stretch for two to three minutes every 45 to
4

These findings are discussed in more detail in the next section.

6

60 minutes. She can stand/walk two hours but for no more than 10 to 15 minutes
at a time. She is limited to occasional balancing, stooping, kneeling, crouching,
crawling, and climbing of ramps and stairs. She can never climb ladders, ropes,
and scaffolds. She must avoid extreme exposure to extreme cold, extreme heat,
high humidity, and low humidity. She must avoid even moderate exposure to
fumes, odors, dusts, gases, and poor ventilation. She is limited to simple, routine,
repetitive tasks. She is limited to low stress work in static environment with
relatively few changes. The work cannot be fast paced and cannot have stringent
production quotas. Finally, she is limited to only occasional and superficial
contact with others. (Tr. 15) (emphasis supplied)
The ALJ then found that based upon her RFC, the Plaintiff could not engage in her past
work as a CNA. The ALJ then proceeded on to Step Five, where he found—based on the
testimony of the VE—that given the Plaintiff’s age, education, work experience, and RFC, she
could perform the requirements of occupations such as hand assembler, which has 6,000 jobs in
the state and 280,000 nationally, machine tender, with 5,000 jobs in the state and 242,000
nationally, and table worker, with 7,000 jobs in the state, and 472,000 nationally. Therefore, the
ALJ concluded, the Plaintiff was not disabled within the meaning of the Act. (Tr. 67-68)
IV.

Issues Before the Court
The general issue in this appeal is whether the Defendant’s adverse determination as to

Plaintiff’s disability status is supported by substantial evidence on the record as a whole. More
specifically, there are three subsidiary issues in this appeal:
i.
ii.

iii.

Whether the decision of the ALJ to not give controlling weight to the opinion of
Plaintiff’s treating physician was proper;
Whether the RFC is supported by substantial evidence, and whether it complied with the
dictates of SSR 96-8p requiring a narrative bridge describing how the evidence supports
each conclusion within the RFC; and
Whether the ALJ’s credibility determination relating to the Plaintiff was patently
erroneous.
Although the Court has considered all of the issues between the parties in this case, and

all of their arguments, the Court’s analysis will focus on the RFC determination by the ALJ.
7

Because that determination is not supported by substantial evidence, the decision of the
Commissioner must be reversed.
V.

Standard of Review
Under 42 U.S.C. §405(g) and controlling Eighth Circuit case law, this Court reviews the

final decision of the Commissioner to determine whether that decision is supported by
substantial evidence on the record as a whole. Smith v. Shalala, 31 F.3d 715, 717 (8th Cir. 1994).
Substantial evidence, in turn, 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).
Thus, the decision of the Commissioner may not be reversed solely because this Court
might have decided the case differently. Id. at 1022. Instead, this Court must determine whether
the quantity and quality of evidence is enough so that a reasonable mind might find it adequate to
support the Commissioner’s conclusion. Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001).
Additionally, this Court will determine whether the Commissioner faithfully applied the
familiar five step process to determine whether an individual qualifies for disability. See, 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Bowen v. Yuckert, 482 U.S. 137, 140-42
(1987) (describing the five-step process).
Steps One through Three require the claimant to prove (1) she is not currently engaged in
substantial gainful activity, (2) she suffers from a severe impairment, and (3) her disability meets
or equals a listed impairment. If the claimant does not suffer from a listed impairment or its
equivalent, the Commissioner’s analysis proceeds to Steps Four and Five. Id. Step Four requires
the Commissioner to consider whether the Plaintiff retains the RFC to perform her previous
work; if the Plaintiff proves she cannot do so, then the burden switches to the Commissioner at

8

Step Five to prove that there is work in the national economy that the Plaintiff can do,
considering her age, work experience, education, and RFC.
Finally, and particularly relevant to this case, it is the ALJ’s burden “to develop the
record fairly and fully, independently of the claimant’s burden to press his case.” Snead v.
Barnhart, 360 F.3d 834, 838 (8th Cir. 2004) (reversing the Commissioner in order to more fully
develop the record where uncontroverted medical evidence showed that Claimant had heart
disease that was inconsistent with the Commissioner’s RFC).
VI.

Discussion
As discussed above, the parties dispute three main points. They dispute whether the

decision of the ALJ to not give controlling weight to the opinion of the Plaintiff’s treating
physician was proper, whether the RFC is supported by substantial evidence, and whether the
ALJ’s credibility determination relating to the Plaintiff was erroneous. This Court will only
address the question of the Plaintiff’s RFC, specifically as it relates to the finding that the
Plaintiff can sit for at least six hours, with breaks for getting up every forty five minutes. 5
With regard to the RFC, the Plaintiff argues that the ALJ erred for several inter-related
reasons. First, the ALJ did not credit Dr. Meidl’s specific finding that the Plaintiff could not sit
5

Although the Court cannot definitively approve the ALJ’s analysis of the Plaintiff’s credibility because
more medical evidence is needed with regard to the sitting limitation, the Court notes that the ALJ’s analysis
regarding Plaintiff’s credibility concerning the other complaints is strong.
For instance, the Plaintiff complains of disabling mental impairments which affect her memory and ability
to complete tasks, concentrate, understand and follow directions. (Tr. 16) The ALJ found that Plaintiff is not
credible in describing the extent of her symptoms. The ALJ backs this up with citation to objective medical
evidence, such as a normal psychological examination, during which Plaintiff’s depression and anxiety were wellcontrolled. (Tr. 19) During Plaintiff’s hospitalization for chest pain in October of 2010, she was fully alert and
oriented, pleasant, and appropriate; she also later denied having any memory loss, depression, or other mental
illness, and on examination, was fully alert and oriented with normal mood and affect. (Id.) Plaintiff was also
diagnosed with a Global Assessment of Function Score of 55, indicating only moderate symptoms in occupational or
social functioning—this was inconsistent with her subjective assertions of disabling mental impairments. Also, the
ALJ based his credibility determination on the Plaintiff’s daily activities, as reported in her Function Report. These
activities include caring for grandchildren, preparing meals, shopping and driving. (Tr. 20)
The ALJ thus addressed many of the credibility factors enumerated in Polaski v. Heckler, 739 F.2d 1320,
1322 (8th Cir. 1984). Therefore, the ALJ’s assessment of the Plaintiff’s credibility in areas other than her ability to
sit seems to be supported by substantial evidence.

9

for six hours. (Tr. 18) The Plaintiff argues that Dr. Meidl’s finding is supported by substantial
evidence—namely, an MRI showing “degenerative changes” at several areas on the spine, a
positive straight leg raising test, swelling, the need for the patient to be on pain medication, as
well as various treatment notes describing the Plaintiff’s back pain. Because of this evidentiary
support, the Plaintiff argues that the doctor’s opinion is entitled to controlling weight. See 20
C.F.R. 404.1527(c)(2).
Second, the Plaintiff argues that, regardless of the weight given to Dr. Meidl’s opinion,
no substantial evidence supports the ALJ’s RFC limitation regarding sitting because there is no
contrary “evidence in the record” that shows that the Plaintiff can in fact sit for six out of eight
hours. Thus, the Plaintiff argues that the ALJ crafted the RFC “out of thin air.”
This Court agrees with the Plaintiff that the decision of the Commissioner must be
reversed, and the cause remanded for further proceedings. The main issue in this case relates to
the ALJ’s RFC finding that the Plaintiff “can sit up to six hours but must be allowed the
opportunity to stand and stretch for two to three minutes every 45 to 60 minutes.” (Tr. 21)
First, this RFC limitation is directly contrary to Dr. Meidl’s opinion, which, as explained
below, is entitled to controlling weight on the present state of the record. The second issue is
that the specific limitation (regarding the ability to sit) that the ALJ included has no basis in any
objective medical evidence, and therefore is not supported by substantial evidence. It is wellsettled that an RFC must be based on at least “some evidence.” See Lauer v. Apfel, 245 F.3d
700, 704 (8th Cir. 2001) (noting that although the ALJ is not limited to considering medical
evidence, the ALJ was required to consider at least some supporting medical evidence from a
professional in formulating an RFC). The Court will address these issues in turn.

10

First, the Court agrees with the Plaintiff that, on the state of the record as it is developed
right now, the opinion of Plaintiff’s primary and treating physician regarding her ability to sit is
entitled to controlling weight under the Commissioner’s regulations at 20 C.F.R.
§404.1527(c)(2). Under that provision, the opinion of a treating physician is entitled to
controlling weight where it is—
i.
ii.

Well supported by medically acceptable clinical and laboratory diagnostic
techniques; and
Not inconsistent with the other substantial evidence in the case.

Here, Dr. Meidl’s conclusions are at least consistent with several pieces of medical
evidence indicating back issues that would lead to sitting restrictions. This evidence includes
MRI imaging showing degenerative disc problems, (Tr. 512) a positive straight leg raising test,
(Tr. 521) documented swelling, treatment notes discussing back pain, (Tr. 532-33) the list of
Plaintiff’s pain medications, (Tr. 822-30) and subjective complaints from the Plaintiff regarding
back pain. 6
Meanwhile, there is no medical evidence contradicting Dr. Meidl’s conclusions. The
only evidence that is arguably inconsistent with Dr. Meidl’s report is the ALJ’s subjective
observations of the Plaintiff at the April 2013 hearing, and the Plaintiff’s statement during the
hearing that she watches television for eight hours a day. But the ALJ cannot overturn the clear
medical conclusion of a treating physician that is supported by substantial evidence on this basis
alone. See Ludden v. Bowen, 888 F.2d 1246, 1248-9 (8th Cir. 1989) (“Subjective complaints of
pain may not be rejected solely on the basis of the ALJ’s personal observations.”). Thus, Dr.
Meidl’s opinion in this regard is entitled to controlling weight under §404.1527(c)(2).
6

Apart from the medical opinion of the Plaintiff’s treating physician, there was other, non-medical evidence
in the record to support Dr. Meidl’s findings. For instance, although the ALJ properly did not afford any weight to
it, this Court does find it at least relevant that a State agency decision-maker agreed with Plaintiff’s treating
physician; and there was evidence from third parties that the Plaintiff suffered from severe back issues. (Tr. 458,
630-37)

11

The second issue that the Court will turn to is the paucity of evidence in support of the
RFC, even apart from the question of weight given to the treating physician’s opinion. Indeed, it
appears to the Court that the evidence that Plaintiff cannot sit for six hours is un-contradicted by
other medical evidence, but that the limitation did not make it into the RFC. See Snead v.
Barnhart, 360 F.3d 834-37 (8th Cir. 2004) (reversing the Commissioner where evidence of an
incurable disease went un-contradicted but did not make it into the Commissioner’s RFC).
In other words, even if the ALJ had ample reason for his decision not to adopt the opinion
of Dr. Meidl, this Court can locate no medical evidence to support the ALJ’s conclusion that
Plaintiff’s sitting ability amounts to six hours in an eight hour workday. An RFC must be
supported by some medical evidence. It is not clear what medical source the ALJ used in
constructing this portion of the RFC. Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001).
Thus, at bottom, the problem here is the failure to develop the record relating to this RFC
limitation relating to sitting. It is well established that it is the duty of the ALJ to fully and fairly
develop the record. In this regard, the current case has parallels to the case of Snead v. Barnhart,
360 F.3d 834 (8th Cir. 2004). In Snead, the Commissioner had originally found the plaintiff
disabled because of, inter alia, his alcoholism. A statutory change after the plaintiff’s original
adjudication made clear that alcoholism or drug addiction was not grounds for disability. Thus,
upon redetermination, the Commissioner found the Plaintiff not disabled. However, at the
redetermination hearing, the plaintiff presented evidence that he had a heart condition that he
claimed would independently qualify him for disability. The ALJ, however, did not sufficiently
investigate this condition, and held that the plaintiff was not disabled; while agreeing with the
ALJ’s determinations regarding alcoholism, the Court of Appeals reversed in order “to permit
the Commissioner to develop the record fully regarding Snead’s physical condition.” Id. at 836.

12

The Snead court noted that “[w]ell-settled precedent confirms that the ALJ bears a
responsibility to develop the record fairly and fully” regarding the independent physical grounds
asserted for disability, and that where the record shows the ALJ did not further investigate that
ground the “void in the evidence evinces a failure by the ALJ to fully and fairly develop the
record.” Id. at 838.
Similarly, in this case, the ALJ seemingly had doubts about the specific limitation
relating to an inability of the Plaintiff to sit for at least six hours, but he did not independently
develop medical evidence (by for instance, ordering a consulting examination) that would have
shown that the Plaintiff can in fact sit for six hours. That was error.
The failure of evidence with regard to the RFC limitation on sitting is to be contrasted
with the other limitations contained in that RFC; and the treatment by the ALJ of these other
limitations should be instructive upon remand.
In the ALJ’s discussion of Plaintiff’s purported mental impairments, the ALJ clearly and
cogently cites to evidentiary medical evidence regarding those limitations, and draws a
reasonable RFC limitation from the evidence. (See Tr. 19-20) For example, in the discussion of
Plaintiffs difficulties sustaining concentration, persistence or pace, the ALJ reviewed the
Plaintiff’s Function Report, considered the testimony of third parties, and took into account his
own observations of the Plaintiff. The ALJ then crafted a responsive RFC limitation. This is the
type of analysis that—upon remand—should take place relating to the Plaintiff’s ability to sit.
In the end, it may very well be that there is other medical evidence that can show that the
Plaintiff has the ability to sit for at least six hours; but that evidence has not been developed, and
it is the burden of the Commissioner to fully and fairly develop that record. Nevland v. Apfel,
204 F.3d 853, 858 (8th Cir. 2000). If the ALJ did not believe that the professional opinions

13

available to him were sufficient to allow him to form an opinion, he could have further
developed the record. See Lauer, 245 F.3d at 706.
Because of this failure to develop the record to include medical evidence that contradicts
the medical evidence of the treating physician and supports the ALJ’s RFC, the finding that the
Plaintiff can sit for six hours is not supported by substantial evidence.
Accordingly,
IT IS HEREBY ORDERED that the final decision of the Commissioner denying
Plaintiff’s application for disability benefits under Title II and Title XVI of the Social Security
Act is REVERSED and this cause is REMANDED for further proceedings consistent with this
Memorandum and Order.
A separate Judgment shall accompany this Memorandum and Order.
Dated this 17th day of August, 2015.
/s/ John M. Bodenhausen
JOHN M. BODENHAUSEN
UNITED STATES MAGISTRATE JUDGE

14