Howard v. Berryhill
MEMORANDUM AND ORDER re: 20 SOCIAL SECURITY BRIEF filed by Plaintiff William D. Howard, 21 SOCIAL SECURITY CROSS BRIEF re 20 SOCIAL SECURITY BRIEF filed by Defendant Nancy A. Berryhill, 22 SOCIAL SECURITY REPLY BRIEF filed by Plaintiff William D. Howard. Accordingly, the Court reverses and remands the case to the ALJ for further consideration. Signed by Magistrate Judge Abbie Crites-Leoni on 9/15/20. (CSG)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
WILLIAM D. HOWARD,
ANDREW M. SAUL,
Commissioner of Social Security
Case No. 2:19 CV 30 ACL
Plaintiff William D. Howard brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of the Social Security Administration Commissioner’s denial of his applications
for Disability Insurance Benefits under Title II of the Social Security Act and Supplemental
Security Income under Title XVI of the Act.
An Administrative Law Judge (“ALJ”) found that, despite Howard’s severe impairments,
he was not disabled as he had the residual functional capacity (“RFC”) to perform work existing
in significant numbers in the national economy.
This matter is pending before the undersigned United States Magistrate Judge, with
consent of the parties, pursuant to 28 U.S.C. § 636(c). A summary of the entire record is
presented in the parties’ briefs and is repeated here only to the extent necessary.
For the following reasons, the decision of the Commissioner will be reversed and
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I. Procedural History
Howard filed his applications for benefits on December 18, 2015, claiming that he
became unable to work on September 12, 2012. (Tr. 198-212.) He alleged disability due to a
blood clot in his left leg and stomach pain. (Tr. 248.) Howard was 33 years of age at his
alleged onset of disability. (Tr. 25.) His application was denied initially. (Tr. 90-94.)
Howard’s claim was denied by an ALJ on July 31, 2018. (Tr. 16-26.) On March 29, 2019, the
Appeals Council denied Howard’s claim for review. (Tr. 1-3.) Thus, the decision of the ALJ
stands as the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481.
In this action, Howard first argues that the ALJ committed reversible error by failing to
make a finding concerning residual functional capacity that was supported by substantial
evidence. He next argues that the hypothetical question posed to the vocational expert did not
capture the concrete consequences of Howard’s deficiencies.
II. The ALJ’s Determination
The ALJ first found that Howard met the insured status requirements of the Act through
September 30, 2018. (Tr. 18.) He next found that Howard had not engaged in substantial
gainful activity since September 12, 2012, the alleged onset date. (Tr. 19.) In addition, the
ALJ concluded that Howard had the following severe impairment: deep vein thrombosis
(“DVT”). Id. The ALJ found that Howard did not have an impairment or combination of
impairments that met or medically equaled the severity of one of the listed impairments. (Tr.
As to Howard’s RFC, the ALJ stated:
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
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perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except: he is able to lift or carry 10 pounds frequently
and 20 pounds occasionally; he can sit for 6 hours in an 8-hour
workday; he can stand and/or walk for 6 hours in an 8-hour
workday; he can occasionally climb ramps and stairs, but no
climbing ladders, rope or scaffolds; he can occasionally balance,
stoop, kneel, crouch, and crawl; he will need to avoid hazards,
such as dangerous machinery and unprotected heights; and he will
need to avoid working with sharp objects that could cause cutting
or puncture wounds.
The ALJ found that Howard had no past relevant work, but was capable of performing
other jobs existing in significant numbers in the national economy, such as photocopy machine
operator, router, and marking clerk. (Tr. 24-25.) The ALJ therefore concluded that Howard
was not under a disability, as defined in the Social Security Act, at any time from September 12,
2012, through the date of the decision. (Tr. 26.)
The ALJ’s final decision reads as follows:
Based on the application for a period of disability and disability
insurance benefits protectively filed on December 18, 2015, the
claimant was not disabled under sections 216(i) and 223(d) of the
Social Security Act.
Based on the application for supplemental security income
protectively filed on December 18, 2015, the claimant is not
disabled under section 1614(a)(3)(A).
III. Applicable Law
III.A. Standard of Review
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,
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401 (1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002). Substantial evidence is less
than a preponderance of the evidence, but enough that a reasonable person would find it adequate
to support the conclusion. Johnson v. 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
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:
The credibility findings made by the ALJ.
The plaintiff’s vocational factors.
The medical evidence from treating and consulting physicians.
The plaintiff’s subjective complaints relating to exertional and
non-exertional activities and impairments.
Any corroboration by third parties of the plaintiff’s
The testimony of vocational experts when required which is
based upon a proper hypothetical question which sets forth the
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 770; Warburton v. Apfel, 188 F.3d 1047, 1050
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(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 v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001) (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).
III.B. Determination of Disability
A disability is defined 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 that has lasted or can be expected to last for a continuous period of not less than
twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. § 416.905. A claimant
has a disability when the claimant is “not only unable to do his previous work but cannot,
considering his age, education and work experience engage in any kind of substantial gainful
work which exists … in significant numbers in the region where such individual lives or in
several regions of the country.” 42 U.S.C. § 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social
Security Act, the Commissioner follows a five-step sequential evaluation process outlined in the
regulations. 20 C.F.R. § 416.920; see Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). First,
the Commissioner will consider a claimant’s work activity. If the claimant is engaged in
substantial gainful activity, then the claimant is not disabled. 20 C.F.R. § 416.920(a)(4)(i).
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Second, if the claimant is not engaged in substantial gainful activity, the Commissioner
looks to see “whether the claimant has a severe impairment that significantly limits the
claimant’s physical or mental ability to perform basic work activities.” Dixon v. Barnhart, 343
F.3d 602, 605 (8th Cir. 2003). “An impairment is not severe if it amounts only to a slight
abnormality that would not significantly limit the claimant’s physical or mental ability to do
basic work activities.” Kirby, 500 F.3d at 707; see 20 C.F.R. §§ 416.920(c), 416.921(a).
The ability to do basic work activities is defined as “the abilities and aptitudes necessary
to do most jobs.” 20 C.F.R. § 416.921(b). These abilities and aptitudes include (1) physical
functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, or handling; (2)
capacities for seeing, hearing, and speaking; (3) understanding, reaching out, and remembering
simple instructions; (4) use of judgment; (5) responding appropriately to supervision, coworkers, and usual work situations; and (6) dealing with changes in a routine work setting. Id. §
416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141 (1987). “The sequential evaluation
process may be terminated at step two only when the claimant’s impairment or combination of
impairments would have no more than a minimal impact on his ability to work.” Page v.
Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (internal quotation marks omitted).
Third, if the claimant has a severe impairment, then the Commissioner will consider the
medical severity of the impairment. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, then the claimant is considered disabled,
regardless of age, education, and work experience. 20 C.F.R. §§ 416.920(a)(4)(iii), 416.920(d);
see Kelley v. Callahan, 133 F.3d 583, 588 (8th Cir. 1998).
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the
presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to
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determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements”
of the claimant’s past relevant work. 20 C.F.R. §§ 416.920(a)(4)(iv), 416.945(a)(4). “RFC is a
medical question defined wholly in terms of the claimant’s physical ability to perform exertional
tasks or, in other words, what the claimant can still do despite his or his physical or mental
limitations.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (internal quotation marks
omitted); see 20 C.F.R. § 416.945(a)(1). The claimant is responsible for providing evidence the
Commissioner will use to make a finding as to the claimant’s RFC, but the Commissioner is
responsible for developing the claimant’s “complete medical history, including arranging for a
consultative examination(s) if necessary, and making every reasonable effort to help [the
claimant] get medical reports from [the claimant’s] own medical sources.” 20 C.F.R. §
416.945(a)(3). The Commissioner also will consider certain non-medical evidence and other
evidence listed in the regulations. See id. If a claimant retains the RFC to perform past
relevant work, then the claimant is not disabled. Id. § 416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in Step Four will not allow the claimant to
perform past relevant work, then the burden shifts to the Commissioner to prove that there is
other work that the claimant can do, given the claimant’s RFC as determined at Step Four, and
his age, education, and work experience. See Bladow v. Apfel, 205 F.3d 356, 358-59 n. 5 (8th
Cir. 2000). The Commissioner must prove not only that the claimant’s RFC will allow the
claimant to make an adjustment to other work, but also that the other work exists in significant
numbers in the national economy. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004);
20 C.F.R. § 416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists
in significant numbers in the national economy, then the Commissioner will find the claimant is
not disabled. If the claimant cannot make an adjustment to other work, then the Commissioner
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will find that the claimant is disabled. 20 C.F.R. § 416.920(a)(4)(v). At Step Five, even though
the burden of production shifts to the Commissioner, the burden of persuasion to prove disability
remains on the claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
Howard first argues that the ALJ’s RFC determination was not based upon substantial
evidence because it did not include Howard’s need to elevate his lower extremity due to chronic
edema. He contends that this limitation is supported by the opinion of medical expert
Subramaniam Krishnamurthi, M.D., as well as the opinion of examining physician Scott
The ALJ acknowledged that Howard experienced edema in his left leg due to his DVT.
(Tr. 22-23.) He stated that, while the examinations of record “showed that the claimant
exhibited left lower extremity edema, the record supports that his leg swelling improved with
treatment.” (Tr. 22.) The ALJ noted that Howard exhibited 3+ pitting edema after his
emergency room visit near his alleged onset date; however, the subsequent treatment records do
not show edema of such severity. Id. He stated that, although Howard testified that he elevated
his leg above his heart for an hour with every one-and-a-half hours of sitting or standing, there
was no acceptable medical source supporting this was medically necessary. Id.
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 others, and the
claimant’s own descriptions of his limitations. Pearsall, 274 F.3d at 1217. “It is the claimant’s
burden, and not the Social Security Commissioner’s burden, to prove the claimant’s RFC.”
Baldwin v. Barnhart, 349 F.3d 549, 556 (8th Cir. 2003). An RFC determination made by an
ALJ will be upheld if it is supported by substantial evidence in the record. See Cox v. Barnhart,
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471 F.3d 902, 907 (8th Cir. 2006). “Because a claimant’s RFC is a medical question, an ALJ’s
assessment of it must be supported by some medical evidence of the claimant’s ability to
function in the workplace.” Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016). There is no
requirement, however, that an RFC finding be supported by a specific medical opinion. See
Perks v. Astrue, 687 F.3d 1086, 1092-93 (8th Cir. 2012); Martise v. Astrue, 641 F.3d 909, 927
(8th Cir. 2011) (An ALJ “is not required to rely entirely on a particular physician’s opinion or
choose between the opinions [of] any of the claimant’s physicians.”). Furthermore, “[e]ven
though the RFC assessment draws from medical sources for support, it is ultimately an
administrative determination reserved to the Commissioner.” Cox, 495 F.3d at 619-20.
In determining Howard’s RFC, the ALJ first discussed the medical evidence of record.
He stated that Howard’s care for his DVT was generally routine and conservative, consisting of
medication refills. (Tr. 22.) He noted that a vein study performed in September 2017 revealed
no evidence of deep venous insufficiency of the bilateral lower extremity. Id. The ALJ stated
that Howard’s examinations consistently revealed full strength of the lower extremities, he was
in no acute distress, and he did not require an assistance device with standing or walking. Id.
He noted that, despite his complaints of chronic leg pain, he was not taking any medication for
his pain other than Tylenol in March 2016. (Tr. 22-23.) The ALJ pointed out that Medicaid
disability examiner Dr. Bartkoski stated that Howard’s “pain could be better controlled with
stronger pain medications which may increase his chance of working.” (Tr. 369, 23.) The ALJ
stated that Howard’s activities of daily living support an RFC for less than the full range of light
work. (Tr. 23.) For example, he noted that Howard was able to prepare simple meals daily,
fold laundry, wash dishes, and grocery shop. Id.
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The ALJ next evaluated the medical opinion evidence. “It is the ALJ’s function to
resolve conflicts among the various treating and examining physicians.” Tindell v. Barnhart,
444 F.3d 1002, 1005 (8th Cir. 2006) (quoting Vandenboom v. Barnhart, 421 F.3d 745, 749-50
(8th Cir. 2005) (internal marks omitted)). The opinion of a treating physician will be given
“controlling weight” only if it is “well supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record.”
Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir. 2000). The record, though, should be
“evaluated as a whole.” Id. at 1013 (quoting Bentley v. Shalala, 52 F.3d 784, 785-86 (8th Cir.
1997)). The ALJ is not required to rely on one doctor’s opinion entirely or choose between the
opinions. Martise, 641 F.3d at 927. Additionally, when a physician’s records provide no
elaboration and are “conclusory checkbox” forms, the opinion can be of little evidentiary value.
See Anderson v. Astrue, 696 F.3d 790, 794 (8th Cir. 2012). Regardless of the decision the ALJ
must still provide “good reasons” for the weight assigned the treating physician’s opinion. 20
C.F.R § 404.1527(d)(2).
The ALJ must weigh each opinion by considering the following factors: the examining
and treatment relationship between the claimant and the medical source, the length of the
treatment relationship and the frequency of examination, the nature and extent of the treatment
relationship, whether the physician provides support for his findings, whether other evidence in
the record is consistent with the physician’s findings, and the physician’s area of specialty. 20
C.F.R. §§ 404.1527(c)(1)-(5), 416 .927(c)(1)-(5).
At a supplemental hearing held on May 10, 2018, the ALJ obtained testimony from
medical expert Dr. Krishnamurthi, a specialist in internal medicine and cardiology. (Tr. 31,
400.) Dr. Krishnamurthi testified that, after reviewing the medical record, he found that
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Howard had problems with anticoagulation. (Tr. 34.) He expressed the opinion that Howard
had the following work-related physical limitations: able to lift ten pounds frequently and twenty
pounds occasionally; sit six hours out of an eight-hour workday; stand and walk together for six
hours out of an eight-hour workday; no climbing ladders, scaffolds, or ropes; occasional bending,
stooping, crawling, and crouching; and should avoid contact with sharp objects. (Tr. 35.) Dr.
Krishnamurthi testified that Howard would likely experience symptoms of leg pain and some
edema due to his anticoagulation and DVT. (Tr. 36.) Dr. Krishnamurthi stated:
But I didn’t see much of the edema. But I think—I saw, most of the time, edema.
But I still think it’s all anticoagulation. Chronic anticoagulation. There’s a
possibility that they can have. So that, kind of I figured out into my—in the
written prescriptions. And then pain, as well; some swelling in the legs possible.
Those are the things that I consider that are objective findings. Respect then,
causing anticoagulation. That’s chronic anticoagulation. They’ve had to find
probably—I thought I saw that. So I considered these things.
When asked by Howard’s counsel what causes stasis dermatitis,1 Dr. Krishnamurthi
responded “[y]ou can have the leg edema stays all the time. You know, the edema leg stays all
the time. That can cause the stasis dermatitis.” (Tr. 37.) He further explained that “the
swelling in the leg, from the stretches, the scaling, and that causes the stasis dermatitis.” Id.
The following exchange then occurred:
[Counsel]: And that’s caused by having leg edema all the time?
[ME]: Yeah. Now on a chronic basis, not basis [phonetic].
[Counsel]: On a chronic basis.
[ME]: Should be there on it all the time. Then, you know, the skin gets stretched out,
and then the venous and the blood is there all the time. That causes the—
Erythema and scaling of the lower extremities due to impaired venous circulation secondary to
deep vein thrombosis; with rapid onset and swelling. Stedman’s Medical Dictionary, 519 (28th
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[Counsel]: That is not caused if the person rarely has edema. Is that correct?
[ME]: If it comes and goes, it may not. But if you have a continuous basis, then that
will—causes stasis dermatitis.
(Tr. 37-38.) Dr. Krishnamurthi testified that Howard’s edema may worsen if his leg was in a
dependent position or if he walks. (Tr. 38.) Counsel asked Dr. Krishnamurthi if it was
recommended to keep the feet elevated above the heart when an individual has dependent edema.
Id. Dr. Krishnamurthi stated:
[inaudible], not above the heart. I think, probably, they have a—if you have
somebody who has a chronic edema…then I think they recommend they do it in
the afternoon, sometimes, to keep the—lie down and then keep the legs up, you
know, two or three feet above the—below the legs. And that’s what they
recommend. And they also—for nighttime, also, they recommend a [inaudible]
shoulders there. The fluid just go down, you know, just—so they recommend,
(Tr. 39.) Finally, counsel questioned Dr. Krishnamurthi as follows:
If you had a patient who had chronic edema—and what I mean by that is, if it’s so
chronic that it’s causing the stasis dermatitis changes, do you believe it would be
important for them to elevate their—that lower extremity?
Id. Dr. Krishnamurthi responded, “Yes. Yes.” Id.
The ALJ stated that he was assigning “great weight” to the opinions of Dr. Krishnamurthi
because they were supported by the record. (Tr. 23.) The ALJ noted that Dr. Krishnamurthi
specializes in cardiology and had reviewed all the medical evidence of record. Id. He stated
that Howard’s edema improved with treatment, he had full strength in the lower extremities, and
he did not require the use of an assistive device. Id. The ALJ further explained that Howard’s
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daily activities support Dr. Krishnamurthi’s opinion that Howard can perform less than the full
range of light work. Id.
Howard argues that the ALJ erred in assigning great weight to Dr. Krishnamurthi’s
opinion because his opinion that Howard could perform work that required standing most of the
time is inconsistent with his testimony regarding Howard’s edema.
The undersigned agrees that Dr. Krishnamurthi’s testimony is internally inconsistent in
multiple respects. First, Dr. Krishnamurthi testified that he did not “see much of the edema” in
the medical record. (Tr. 36.) This conflicts with his subsequent testimony that stasis
dermatitis, from which Howard suffers, only occurs in patients with “chronic” or “continuous”
edema, and would not occur if the patient experiences edema “rarely.” (Tr. 37.) Defendant
does not dispute that Howard has been diagnosed with stasis dermatitis.
Second, upon questioning by Howard’s attorney, Dr. Krishnamurthi testified that
Howard’s edema would worsen when his leg is in a dependent position and when he is walking.
(Tr. 38.) He further testified that it would be important for a patient with chronic edema to
elevate his lower extremity. (Tr. 39.) Dr. Krishnamurthi, however, failed to explain how an
individual could stand and walk for six hours out of an eight-hour workday if standing resulted in
increased edema and the need to elevate the legs. Sitting for six hours in an eight-hour day
would pose the same problem, provided the legs are in a dependent position while sitting. Dr.
Krishnamurthi did not include a need to elevate the legs during the workday in his RFC opinion.
Notably, the vocational expert testified that the need to elevate one’s legs above the heart for one
hour every one-and-a-half hours after either standing or sitting with the feet in a dependent
position would preclude jobs unless the employer allowed an accommodation. (Tr. 42-43.)
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The medical evidence reflects frequent findings of edema and stasis dermatitis of the left
lower extremity. Howard received treatment for his DVT at Midland Community Healthcare
Services from November 2012 through July 2015. (Tr. 324-48.) On his initial visit on
November 27, 2012, it was noted that Howard had been in the emergency room for pain and
edema in his left leg and had been diagnosed with DVT. (Tr. 324.) Upon examination, edema
and 3+ pitting was noted in the left leg. (Tr. 325.) On December 18, 2012, pedal edema in
the left leg to the knee and palpable veins in the left thigh were noted. (Tr. 327.) Edema was
absent on examination at Howard’s follow-up visits in January 2013, March 2013, and June
2013. (Tr. 333, 336, 338.) On October 30, 2013, it was noted that Howard had been in the
emergency room due to edema that had been present for one month. (Tr. 340.) Upon
examination, edema was noted in the lower extremities, the left calf greater than the right. Id.
Edema was absent at Howard’s next visit in July 2014. (Tr. 343.) On July 20, 2015, Howard
complained of left ankle pain. (Tr. 347.) Howard had difficulty with his gait and edema of the
left leg was noted. Id. The examining physician, Federico Ilang-Ilang, M.D., instructed
Howard to be non-weightbearing on the left extremity and to elevate and apply ice to the left
extremity. (Tr. 348.) Howard underwent a Medicaid disability exam performed by Dr.
Bartkoski on February 29, 2016. (Tr. 368.) Upon examination, Dr. Bartkoski noted edema in
the left leg, with the left calf significantly more swollen than the right calf. (Tr. 369.) He also
noted “significant anterior stasis dermatitis changes,” mild tenderness to palpation of the calf
region, reduced plantar and dorsiflexion both passively and actively, slightly diminished pedis
pulse, and Howard walked with a limp favoring the right side. Id. Howard saw Michael Ryan,
M.D. for a consultation regarding his leg pain on September 6, 2017, at which time edema was
noted on examination. (Tr. 381.) Howard saw Eddie W. Runde, M.D., for a consultative
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examination at the request of the state agency on November 27, 2017. (Tr. 386.) Upon
examination, Dr. Runde noted stasis dermatitis at the distal left calf and foot, no left posterior
tibial pulse, a barely palpable dorsalis pedis pulse, reduced range of motion of the left knee, and
a gait notable for a limp favoring the left lower extremity. (Tr. 37.) Howard had to frequently
change positions between sitting and standing. Id. Howard saw nurse practitioner Connie
Dunn, APRN-CNP from September 2017 through March 2018. (Tr. 401-24.) Ms. Dunn noted
trace edema and some staining on the left lower extremity in September 2017. (Tr. 402.) On
December 11, 2017, Ms. Dunn noted bilateral staining. (Tr. 405.) She noted “chronic
discoloration” of the left lower extremity in March 2018. (Tr. 416.)
With regard to the opinion evidence of record, the ALJ addressed and assigned “little” or
“limited” weight to the opinions of Drs. Runde, Ilang-Ilang, and Bartowski. (Tr. 23-24.) Dr.
Runde completed a “Medical Source Statement of Ability to do Work-Related Activities
(Physical)” on November 27, 2017. (Tr. 389-94.) He expressed the opinion that Howard was
capable of continuously lifting/carrying up to 10 pounds, frequently lifting/carrying 11 to 20
pounds, and occasionally lifting/carrying 21 to 50 pounds; could sit for two hours at a time and
sit a total of six hours in an eight-hour workday; could stand 30 minutes at a time and stand a
total of two hours in an eight-hour workday; and could walk 15 minutes at a time and walk a
total of one hour in an eight-hour workday; could only occasionally operate foot controls with
his left foot and could frequently operate foot controls with his right foot; could never climb
stairs, ramps, ladders, or scaffolds; could never balance, kneel, crouch, or crawl; could
occasionally stoop; could never be exposed to unprotected heights, moving mechanical parts,
extreme cold or heat, or vibrations; could never operate a motor vehicle; could occasionally be
exposed to humidity and wetness and dust, odors, and fumes; could be exposed to moderate
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noise; could not travel without a companion for assistance, ambulate without using an assistive
device, or walk a block at a reasonable pace on rough or uneven surfaces. Id.
The ALJ indicated that he was assigning limited weight to Dr. Runde’s opinions because
they were inconsistent with the overall record. (Tr. 23.) He stated that Dr. Runde’s report does
not indicate that he had the opportunity to review all of the medical evidence of record as Dr.
Krishnamurthi had done. Id. The ALJ found that Dr. Runde’s opinion regarding limitations on
lifting, carrying, sitting, standing, walking operation of foot controls, and postural activities are
not supported by the record. Id. He stated that the record does not support the significant
limitations as to standing and walking. Id. The ALJ noted that Howard testified at the hearing
that he could stand for three to four hours during the relevant period, and the medical record
indicates he ambulated without assistance and had full strength in the lower extremities. Id.
He further discredited Dr. Runde’s opinion regarding environmental restrictions, noting they
were generally based on what was reasonable for the average person rather than Howard’s
records. (Tr. 23-24.)
The ALJ next addressed the opinion of examining physician Dr. Ilang-Ilang. (Tr. 24.)
In July 2015, Dr. Ilang-Ilang instructed Howard to be non-weightbearing on the left extremity,
and to elevate and apply ice as directed. (Tr. 24, 348.) The ALJ stated that the longitudinal
record does not support that Howard was to be non-weightbearing for the durational period, as he
did not use an assistive device during the relevant period. (Tr. 24.) With regard to elevating
and icing his lower extremity, the ALJ found this opinion was vague, because it does not indicate
the frequency or duration of such limitation. Id. The ALJ concluded that Dr. Ilang-Ilang’s
opinion does not support Howard’s need to ice and elevate his leg would cause vocationally
relevant limitations during the workday. Id.
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Finally, the ALJ discussed the opinion of Dr. Bartowski. Dr. Bartowski stated that
Howard experiences chronic left leg pain, which increases with standing or sitting for one hour.
(Tr. 367.) He indicated that Howard walks with a limp, and has decreased range of motion of
the knee and ankle. Id. Dr. Bartowski expressed the opinion that Howard’s left leg pain
limited him to standing or sitting less than one hour. Id. The ALJ stated that Dr. Bartowski’s
opinion was based upon Howard’s own self-reports, as he reported the limitation of sitting or
standing in the same place for one hour. (Tr. 24.) He noted again that Howard acknowledged
at the hearing that he could stand for three to four hours during the relevant period. Id. The
ALJ further stated that Dr. Bartowski’s report does not indicate that he was able to review the
overall medical evidence of record showing that his conditions were generally controlled with
medication management. Id.
The ALJ concluded that Howard had the RFC to perform light work with the following
limitations: he is able to lift or carry 10 pounds frequently and 20 pounds occasionally; he can sit
for six hours in an eight-hour workday; he can stand and/or walk for six hours in an eight-hour
workday; he can occasionally climb ramps and stairs, but no climbing ladders, rope or scaffolds;
he can occasionally balance, stoop, kneel, crouch, and crawl; he will need to avoid hazards, such
as dangerous machinery and unprotected heights; and he will need to avoid working with sharp
objects that could cause cutting or puncture wounds. (Tr. 20.) He stated that this RFC
assessment was supported by Howard’s “testimony and allegations, the medical evidence, his
treatment history, his activities of daily living, and the opinion of Dr. Krishnamurthi.” (Tr. 24.)
The undersigned finds that the ALJ’s RFC determination is not supported by substantial
evidence on the record as a whole. The ALJ relied upon the opinion of Dr. Krishnamurthi but,
as previously discussed, Dr. Krishnamurthi’s opinion is internally inconsistent and does not
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support the ALJ’s determination. Specifically, Dr. Krishnamurthi acknowledged that an
individual who experiences edema to the extent that he suffers from stasis dermatitis should
elevate his lower extremity, and that the edema would worsen if the leg was in a dependent
position or if the individual walks. These limitations are inconsistent with the performance of
light work, particularly sitting and walking for six hours out of an eight-hour workday, with no
limitation of elevating the lower extremity.
Significantly, all of the other examining physicians who provided opinions regarding
Howard’s work-related limitations found greater restrictions than those found by the ALJ. Dr.
Runde found that Howard, among other limitations, could only stand thirty minutes at a time and
stand a total of two hours and could walk fifteen minutes at a time and walk a total of one hour.
(Tr. 389.) Dr. Ilang-Ilang found that Howard should be non-weightbearing on the left extremity
and that he should elevate and apply ice to the left lower extremity. (Tr. 348.) Dr. Bartowski
expressed the opinion that Howard’s left leg pain limited him to standing or sitting less than one
One of the ALJ’s cited reasons for discrediting these greater restrictions was Howard’s
hearing testimony that he was able to stand for three to four hours during the relevant period.
Howard testified that he alleged September 12, 2012 as his onset of disability date because he
was first diagnosed with DVT on that date. (Tr. 57.) He testified that, at this time, he could be
on his feet “a few hours” and he was able to sit longer than that. Id. Upon questioning by the
ALJ, Howard testified that he “probably” could have performed a “sit-down” job in September
2012. (Tr. 58.) Howard, however, explained that his condition worsened “a few months” after
his onset of disability date, and that he currently has to elevate his leg every day for periods of an
hour every hour-and-a-half due to swelling. (Tr. 59-60.)
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The ALJ also assigned little weight to the opinions of the examining physicians because
he found that the medical record indicated Howard ambulated without assistance and had full
strength in the lower extremities. The record does consistently note these findings on
examination. As discussed above, however, the record also notes significant edema, stasis
dermatitis, and an impaired gait. For example, Dr. Bartowski’s opinions were based on
examination findings of edema in the left leg, significant stasis dermatitis changes, tenderness to
palpation of the calf, reduced plantar and dorsiflexion, diminished pedis pulse, and a limp when
walking. (Tr. 369.) Similarly, Dr. Runde noted stasis dermatitis, no left posterior tibial pulse, a
barely palpable dorsalis pedis pulse, reduced range of motion of the left knee, and a gait notable
for a limp favoring the left lower extremity. (Tr. 387.) Dr. Ilang-Ilang’s opinion that Howard
should be non-weight-bearing was based on his findings of edema of the left leg and difficulty
walking. (Tr. 348.) The ALJ rejected this opinion, noting that it was vague because it did not
indicate the frequency or duration of the restriction. (Tr. 24.)
In sum, although the ALJ did not have to choose an opinion on which to rely, the Court
finds that the ALJ’s RFC determination lacks the support of “some medical evidence.” None of
the medical evidence of record supports the ALJ’s determination that Howard is capable of
sitting and standing/walking for six hours a day without additional limitations to allow him to
elevate his leg. The hypothetical question the ALJ posed to the vocational expert was based on
this erroneous RFC.
The current record, however, is unclear as to the length and duration of a restriction of
elevating the lower left extremity. Further, in light of Howard’s testimony that he was able to
sit and stand for longer periods for at least the first few months after his alleged onset of
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disability, it must be determined when this restriction first began. ALJs have a duty to fully and
fairly develop the record. See Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005).
Accordingly, the Court reverses and remands the case to the ALJ for further
consideration. Upon remand, the ALJ should obtain additional medical evidence from a
medical examiner or medical expert regarding Howard’s ability to function in the workplace.
The physician should specifically consider whether Howard must elevate his lower extremity
during the workday; and, if so, how often, for how long, and the date this restriction began.
/s/ Abbie Crites-Leoni
UNITED STATES MAGISTRATE JUDGE
Dated this 15th day of September, 2020.
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