Hall v. Social Security Administration

Filing 20

REPORT AND RECOMMENDATIONS re 1 DCM Complaint filed by John F. Hall ; For the reasons set forth above, it is the recommendation of the undersigned that the decision of the Commissioner of Social Security be reversed and remanded under Sentence 4 of 42 U.S.C. § 405(g). On remand, the ALJ should reconsider Halls RFC. The ALJ should also reconsider the statement that indicated Hall collected disability benefits after he stopped working. The parties are advised that they have ten days to file written objections to this Report and Recommendation. The failure to file timely written objections may waive the right to appeal issues of fact.. Signed by Magistrate Judge David D. Noce on 8/17/09. (KKS)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION JOHN F. HALL, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) ) )

No. 4:08 CV 576 SNLJ DDN

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE This action is before the court for judicial review of the final decision of the defendant Commissioner of Social Security denying the application of plaintiff John F. Hall for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. for review and a recommended disposition under 28 U.S.C. § 636(b). decision be reversed and remanded. I. BACKGROUND (Tr. 44.) He The For action was assigned to the undersigned United States Magistrate Judge the reasons set forth below, the undersigned recommends that the ALJ's

Plaintiff John Hall was born on February 10, 1961. pounds. G.E.D.
1

is 5'7" tall with a weight that has ranged from 158 pounds to 193 (Tr. 131, 221, 570.) (Tr. 28.) He is married and has one adult child. (Tr. 28.) (Tr. 92, 354.) He completed the ninth grade, and never received a He last worked as a cook.

H a l l answered "no," when asked if he had received special education classes. Yet, the next page of his application notes that he attended special education classes in high school. (Tr. 136-37.)

1

On of leg

November pain,

8,

2005,

Hall

applied2 heart

for

disability
3

insurance breathing

benefits, alleging he became disabled on November 21, 2005, on account arthritis, diabetes, problems, and problems. (Tr. 11, 44-45.) He received a notice of disapproved claims After a hearing on June 27, 2007, the (Tr. 8-21, 25-43.). On March 21, (Tr. 2-4.)

on December 8, 2005.

(Tr. 45.)

ALJ denied benefits on July 19, 2007.

2008, the Appeals Council denied plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. II. MEDICAL HISTORY He noted

On an unknown date, Hall completed a disability report. of breath. h e a rt 2005. wife. years.

being unable to work because he had chest pain, body pain, and was short He also noted suffering from leg pain, diabetes, arthritis, and breathing problems. The impairments started problems,

bothering Hall in 2000, but he did not stop working until August 7, He stopped working because he had to stay home and care for his He had worked as a sauté cook or broiler for the past twenty As part of the jobs, he walked and stood for eight hours a day, At the time of the for his heart He

frequently lifted up to forty pounds, and was in charge of restocking supplies, and carrying them to the workstation. report, Hall was taking Aspirin and problems, and Ibuprofen for pain.4 (Tr. 131-37.) Nitroglycerin

On an unknown date, Hall completed a disability report appeal.

n o ted the pain in his leg, hands, and feet had gotten worse since

Hall had applied for disability benefits once before. His earlier application for benefits was denied on January 6, 1999. (Tr. 128.) On June 25, 2007, Hall changed his alleged onset date from December 20, 2004, to November 21, 2005. (Tr. 11, 91, 92, 127, 132.) Aspirin is used to reduce fever and relieve mild to moderate pain. It may also be used to reduce pain and swelling in conditions such as arthritis. Ibuprofen, or Motrin, is an anti-inflammatory drug used to relieve pain and swelling. Nitroglycerin is used to treat chest pain due to angina or heart attack. WebMD, http://www.webmd.com/drugs (last visited July 30, 2009). -24 3

2

December 2005, and that he had neuropathy in his legs, hands, and feet.5 At the time he was taking Aspirin, Nitroglycerin, Ibuprofen, and Hall noted that the side effects from the Gabapentin for neuropathy.6 (Tr. 150-56.) On October 14, 2003, Myung Kang, M.D., reviewed an x-ray of Hall's chest. The x-ray revealed his heart, lungs, mediastinum, and thorax (Tr. 194.) Cogorno did not observe Cogorno noted were all within normal limits.

medications caused him "significant problems," but did not elaborate.

On November 8, 2005, D. Cogorno completed a disability report after conducting a face-to-face interview with Hall. Hall have any difficulty breathing, concentrating, talking, sitting, standing, walking, seeing, writing, or using his hands. to questions about why he could not work. they were not evident." (Tr. 128-30.) A physical that Hall was never out of breath and only rubbed his chest in response "He may have problems, but

On November 17, 2005, Hall went to the emergency room, complaining of tightness in his chest, and difficulty breathing. examination showed Hall's head, eyes, ears, neck/thyroid, lungs, heart, and abdomen were normal. nose/mouth/throat, (Tr. 169-72.)

On November 21, 2005, Hall went to the doctor, complaining of bilateral leg pain and left arm pain, though the left arm pain was not present during the visit. breathing in December 2004. Hall first had chest pain and difficulty The symptoms were interfering with his A physical were 5/5 throughout, and his

daily activities, particularly because of the leg pain. examination showed his motor skills

Periphera l neuropathy is a condition in which the nerves beyond the brain and spinal cord (the peripheral nerves) fail to function properly, resulting in pain, loss of sensation, or inability to control muscles. There are numerous causes for this common condition, among which is diabetes mellitus. Neuropathy can affect the sensory, motor, or autonomic nerves, and the symptoms will vary according to the type of nerves involved. Christl v. Astrue, Civil Action No. 08-290, 2008 WL 4425817, at *3 n.7 (W.D. Pa. Sept. 30, 2008). Gabapentin, or Neurontin, is used to help control seizures. WebMD, http://www.webmd.com/drugs (last visited July 30, 2009). -36

5

reflexes were symmetric.

His gait was antalgic.7

The doctor diagnosed

Hall with diabetes and likely peripheral sensory neuropathy, due to a metabolic or inflammatory cause. His eyes and joints were abnormal, due to numbness and paresthesias.8 were noted to be normal.
9

His ears, head, lungs, heart, and edema (Tr. 187-89.) He

Hall was discharged from the clinic and told

to follow up with a neurology primary care physician.

On November 25, 2005, Hall completed an adult function report. televisio n , and sat on the porch.

lived in a house with his wife, and in a typical day, ate, watched Because of his legs, Hall had Hall could sometimes make difficulty getting out of the bathtub. and straightening up the rooms.

himself a sandwich, and reported doing some chores, like making the bed He could not stand on his legs for very He could with long, and did not drive because of the problems with his legs. Except for medical appointments, Hall did not go

not handle money because his hands cramped up and gave him problems. anywhere regularity. He believed he could only walk about ten minutes before He was able to get along with others, and had Hall reported using a (Tr. 139-

becoming short of breath.

never been fired from a job because he could not get along with others. Hall's only routine was watching television. 46.) On December 2, 2005, Jesse Poblete, M.D. reviewed the results of a stress test. The test showed Hall had no definite ischemia, but that (Tr. 252.) there was mild hypokinesia of the left ventricular wall.10 cane, but noted that a doctor had not yet prescribed its use.

An antalgic gait refers to a posture or gait assumed in order to avoid or lessen pain. See Stedman's Medical Dictionary, 65, 91 (25th ed., Williams & Wilkins 1990). Paresthesia is an abnormal sensation, such as burning, pricking, or tingling. Stedman's Medical Dictionary, 1140. Edema is an accumulation of watery fluid in cells, tissues, or cavities. Stedman's Medical Dictionary, 489. Ischemia is local anemia due to mechanical obstruction (mainly arterial narrowing) of the blood supply. Stedman's Medical Dictionary, 803. Hypokinesia refers to diminished or slow movement. Id., 751. -410 9 8

7

On January 23, 2006, Hall went to the doctor for a follow-up, complaining of numbness in his hands and legs. feet. His gait was slow. etiology of A physical examination showed Hall had full strength proximally, but only 4/5 in his hands and The doctor diagnosed Hall with peripheral the problem. Hall was to be treated neuropathy, and noted that the laboratory evaluation did not reveal the u n d e r l y i ng 28.) On March 27, 2006, Hall went to doctor for a follow-up, complaining of back, leg, arm, and hand pain. The notes indicate he was not Hall was A physical examination noted (Tr. compliant with his medication, stating it was not helping him. observed walking with a cane for support. "some embellishment." for Romberg's sign. 221-22.) On May 15, 2006, Hall went to his neurologist, complaining of leg and arm pain, which he rated 8/10. showed some improvement.12 r ecently got Percocet. his legs and arms.
13 11

symptomatically, and was given a prescription for Gabapentin. (Tr. 227-

He tested positive for allodynia, but negative He was diagnosed with sensory neuropathy.

Hall had been started on Elavil and

He could not afford the Neurontin, but

His complaints were unchanged, and was still

complaining of numbness and tingling in his feet and hands, and pain in A physical examination showed Hall was pleasant and He had an antalgic gait and He was diagnosed with neuropathy, comfortable, with full motor strength. could not walk on his toes or heels. reflux disease (GERD). (Tr. 218-19.)

which was stable with some improvement on Elavil, and gastroesophageal

A l lodynia is the distress resulting from painful stimuli. Stedman's Medical Dictionary, 47. Romberg's test has a standing patient close their eyes. If closing the eyes increases the patient's unsteadiness, the test reveals a loss of proprioceptive control. Id., 1421. E l a v i l , or Amitriptyline, is used to treat mental or mood problems such as depression. WebMD, http://www.webmd.com/drugs (last visited July 30, 2009). Percocet is an opiate-type medication, used to relieve moderate to severe pain. WebMD, http://www.webmd.com/drugs (last visited July 30, 2009). -513 12

11

On July 6, 2006, the Missouri Department of Social Services found Hall was "permanently and totally disabled" and eligible for benefits. The decision was based on Hall's diagnosis of progressive peripheral neuropathy of uncertain etiology, though there is little other explanation for the award. (Tr. 158-63.)

On July 29, 2006, Hall went to the emergency room, requesting xrays of his knees and toes, because he had recently been diagnosed with neuropathy. Hall was ambulatory when he went to the screening area, and denied any trauma or pain while resting. At the same time, the notes indicated Hall's "assistive needs include restricted to using a cane." A physical examination showed his respiration was spontaneous, and his circulation was within normal limits. Hall was alert and oriented, with n o edema. Flexion of the knees produced a grinding sensation with audib l e s , though he had full range of motion in all four extremities, was non-tender to palpation, and his distal pulses were normal. Laura Snyder, PA-C, diagnosed Hall with chondromalacia of the right and left patella, and pain in the knee joints.14 He was discharged home in stable condition, and left in a wheel chair to get to his vehicle. time, Hall was taking Percocet, Amitriptyline, and Tramadol. medical notes indicated that no critical care was required. 63.) On July 31, 2006, Hall went to the doctor for a follow-up, complaining of bilateral knee pain for the past three to four years, but that had become worse since his diagnosis of neuropathy. s e n sation in his knees. and rate were also normal. and 5/5. He had difficulty walking, and complained of pain in his calves and a grinding A physical examination showed he had chest His motor and sensory reflexes were intact p a in, but that his breathing sounds were normal, and his heart sounds The doctor diagnosed Hall with neuropathic pain and bilateral At the
15

The

(Tr. 255-

Chondromalacia is a cartilage irritation under the knee cap, that can cause pain. Climbing stairs and rising from a chair often aggravates the pain. Avoiding aggravating activities and engaging in exercise helps prevent further episodes. (Tr. 260.) Tramadol is used to relieve moderate pain. http://www.webmd.com/drugs (last visited July 30, 2009). -615

14

WebMD,

knee pain, and referred him to a neurologist and orthopedist for the respective problems. visit. He was to follow up as needed. (Tr. 209-10.) On August 10, 2006, Jake LeBeau, M.D., saw Hall for an initial During the visit, Hall completed a health risk history form. He rated his general health as poor, He noted taking Tramadol three times a day, Oxycodone three times a day, and Amitriptyline twice a day.16 concerns. grooming. drugs. and noted his cartilage, knees, and toes were his principal health Hall noted his pain was constant, with aching and burning. He had problems with his memory, difficulty eating, and was Hall stated he did not drink, smoke, or take illegal Hall had not worked since August 2005. Hall had full range of motion in A physical the upper B e c a u s e of the pain, he had difficulty walking, getting dressed, and prone to falling. hands and feet. examination

Hall's chief complaint at the time was burning and pain in his revealed

extremities, but 4/5 strength.

He had decreased range of motion in his He also had crepitus in both knees He had no ulcers or Dr. LeBeau diagnosed His psychiatric test indicated no

knees and toes, and 4/5 strength. lesions on his feet, legs, or hands.

at the suprapatellar and infrapatellar areas. 17 issues, and that he wanted to get back to work.

Hall with peripheral neuropathy, for which he prescribed Neurontin, and k nee and hip pain, for which he refilled a prescription of Percocet. Hall said the Percocet helped his knees, but not his neuropathy. 298-308.) On August 10, 2006, Emily Smith, M.D., reviewed x-rays of Hall's hips, knees, ankles, and feet. The knee x-ray revealed the bones of each knee were intact and anatomically aligned without fracture, joint abnormalities, or joint effusions.18 The ankle x-rays revealed the bones (Tr.

Oxycodone is a narcotic used to treat moderate to severe pain. WebMD, http://www.webmd.com/drugs (last visited July 30, 2009). Crepitus, or crepitation, refers to crackling, and can be the noise or vibration produced by rubbing bone or irregular cartilage surfaces together. Stedman's Medical Dictionary, 368. The patella is the kneecap. Id., 1149. Effusion is the escape of fluid from the blood vessels into the tissues or into a cavity. Stedman's Medical Dictionary, 491. -718 17

16

were intact and anatomically aligned without fractures, joint space abnormalities, or tissue swelling. changes. without The hip x-rays revealed the bones to be intact and aligned, without evidence of fracture or degenerative The feet x-rays revealed the bones were intact and aligned fractures, though there was moderate to severe joint The other joint spaces

osteoarthritis in the joints of each big toe. were normally maintained. (Tr. 917.)

On September 11, 2006, Hall saw Glenn Lorde, M.D., complaining of leg and knee pain, erectile dysfunction, and urinary frequency. with no tremors. A physic a l examination showed Hall had full motor strength throughout, Walking on his heels and toes was painful, and he had (Tr. 267-68.) Dr. LeBeau indicated he wanted an antalgic gait. Dr. Lorde diagnosed Hall with likely painful diabetic neuropathy, GERD, and chondromalacia. Rehabilitation Institute of St. Louis. a wheeled walker. (Tr. 278.) On September 14, 2006, Dr. LeBeau completed a referral form for the Hall to receive a gait assessment, and to be evaluated on his need for During an examination, Dr. LeBeau noted Hall had an antalgic gait with a cane, walked on his toes, had decreased sensation to light touch, and experienced pain on the soles of his feet. ( T r . 311.) (Tr. 288.) Dr. LeBeau also referred Hall to a diabetic foot clinic. That same day, Dr. LeBeau wrote a general "To whom it may (Tr. 295.) Hall was scheduled for two

concern" letter, explaining that Hall was a "newly-diagnosed diabetic with diabetes mellitus type 2." On September 16, 2006, Leigh Wilson, PT, completed an initial plan of care for Hall's physical therapy. sessions over the next two weeks. better." The treatment plan was to focus on

gait training, and Hall's own goals were to "get around a little He had been walking with a cane for the past sixteen months. Wilson noted Hall tolerated treatment without incident and that the plan for the next visit was to continue gait training with the wheeled walker. (Tr. 279-84.) On October 3, 2006, a discharge assessment from the Rehabilitation Institute noted that Hall was using a rolling walker and straight cane as an assistive device. Hall complained of pain throughout his body, The pain was daily and 8/10, that was dull, sharp, numb, and throbbing. -8-

constant, and disturbed his sleep. to get a diabetes shoe. 285.) On October 12, 2006, Dr.

(Tr. 277.)

Hall stated he was He was going (Tr.

feeling about the same as he had before physical therapy. a wheeled walker, instead of a straight cane. LeBeau

Hall reported increased comfort and pace with He was discharged. that Hall

certified

needed

therapeutic shoes.

He noted Hall had diabetes and a history of preDr. LeBeau also wrote that Hall was to be (Tr. 291-93.) That There were no calluses or Muscle strength was Hall After the evaluation,

ulcerative calluses. Dr. LeBeau believed that Hall would need the shoes f o r an indefinite period. fitted for a cane to improve his impaired gait. same day, Joan Frycka examined Hall's feet. u lcers, but there was a bunion on the left foot. was to return in six months, or as necessary. Hall's foot pain was 3/10. (Tr. 314-15.) (Tr.

within normal limits, but Hall's gait was described as a shuffle.

On November 28, 2006, Hall complained of a pain level of 10/10, since he had been out of pain medication for the past four days. 352.) On December 7, 2006, Hall saw John Clohisy, M.D., complaining about constant knee pain, that was worse after prolonged sitting and stair climbing. Hall did not have any recent trauma to his knees, had never Dr. Clohisy noted a history of severe showed Hall was in no acute His lower extremities There was no evidence undergone knee surgery, and denied any mechanical symptoms, such as locking, catching, or clicking. n e uropathy. A physical examination

distress, but that he had an unsteady gait. passive and active range of motion in his knees. of each knee.

showed normal alignment and good strength, with full, free, and painless of joint effusion, but there was tenderness to palpation at the patella There was no evidence of locking, catching, or clicking There was also no evidence of instability He did have reduced sensation, with passive range of motion.

to varus/valgus or anterior/posterior stress testing, negative pivot shift, or negative McMurray's sign.19

Va r u s means bent or twisted inward, toward the midline of the limb or body. Stedman's Medical Dictionary, 1669. Valgus means twisted (continued...) -9-

19

consistent with peripheral neuropathy. X-rays of the knees, showed good joint space, that was symmetric, and showed no signs of degenerative changes, fractures, or other pathology. Dr. Clohisy diagnosed Hall with anterior knee pain in each knee. He instructed Hall on the use of anti(Tr. 323-24.) inflammatories, suggested Hall ice his knees each night, and that he start working on quadriceps strength-training. On December 7, 2006, Dr. Smith reviewed x-rays of Hall's knees. The x-rays revealed the bones were intact and anatomically aligned without fracture or spurring. compartment of the osteoarthritis. 322.) On December 15, 2006, Hall saw Richard Sohn, M.D., complaining of painful peripheral neuropathy. Dr. Sohn had first treated Hall a year His ago, when he complained of paresthesias and numbness in his limbs. relief" from Oxycontin and Tramadol. There was mild narrowing of the medial left knee, which might have represented early (Tr.

Otherwise, the frontal views of the knees were normal

and there was no other evidence of any joint space abnormalities.

symptoms were essentially unchanged, though Hall did report "significant Hall was in particular pain on this visit, having been out of Oxycontin for the previous two weeks. Hall said Neurontin and Lyrica were ineffective, and produced side effects. Hall was also taking Elavil, Metformin, and Viagra.20 Dr. Sohn diag n o s ed Hall with diabetes with neurological complications, stable bilateral lower extremity neuropathy, with uncontrolled pain, "presumed painful diabetic neuropathy," and localized osteoarthritis in each foot, though stable. much all day. Hall indicated he was disabled, and that he did not do (Tr. 317-18.)

(...continued) outward, away from the midline of the limb or body. Id., 1684. McMurray's sign is used to evaluate individuals for tears in the meniscus of the knee. Id., 1571. L yrica is used to treat pain caused by nerve damage due to diabet e s and shingles infection. It is also used to treat pain in people with fibromyalgia. Metformin is used to control high blood sugar. Viagra is used to treat erectile dysfunction. WebMD, http://www.webmd.com/drugs (last visited July 30, 2009). - 10 20

19

A physical examination showed Hall's pulses were intact, with no edema, rashes, or lesions. no tenderness. He had full range of motion in his back, and He had an antalgic He said it was hard His strength was 5/5 throughout.

gait, and was walking with the help of a walker. for him to stand up straight.

Hall was compliant with his medication.

D r . Sohn noted that it was "NOT normal for [Hall] to have such good reflex e s in the context of such pronounced sensory deficits and his report that he feels relief when bending over makes me concerned that we not miss a process in his spinal cord." him a prescription for physical therapy. hemorrhoids and diabetes. Dr . LeBeau diagnosed Dr. Sohn filled out disability papers for Hall, refilled his Oxycontin medication, and gave (Tr. 318-20.) On December 26, 2006, Hall saw Dr. LeBeau, for a follow-up of his An examination showed Hall was not suffering with hemorrhoids, which were currently from any fatigue or chest pain, though he had joint pain and tingling. Hall inactive, pain, which was controlled by Tramadol, Elavil, and OxyContin, diabetes, peripheral neuropathy, which was controlled by the pain medication, and erectile dysfunction. Hall was using a walker and a Hall requested Dr. cane, but he seemed "to be [doing] fairly well."

LeBeau's signature to obtain a buss pass and help with Call-A-Ride, and Dr. LeBeau completed the forms. Dr. LeBeau cautioned Hall about the addictive properties of OxyContin, and planned to discontinue his prescription when it ran out. pay for Viagra out of pocket. Hall was on Medicaid, but was willing to (Tr. 330-32.) (Tr. 891.)21 Hall indicated he had been

In January 2007, Hall went to prison. for St. Louis County Corrections Medicine. in jail before, for two days, in 2002. twen t y pounds. February 1988. C. (Tr. 921.)

On February 8, 2007, Hall completed an intake medical history form He noted recent weight loss of

He had diabetes and had been shot in his right eye in Later that day, Hall saw Karen Nichols, FNP-

Hall described his diabetes as severe, with an associated pain in He also noted a gradual onset of arthritis, which was A review of Hall's symptoms showed he had lost weight since

the extremities. worsening.
21

Hall's earliest prison medical records begin on January 25, 2007. (Tr. 891.) - 11 -

being incarcerated and had not taken his appropriate medication. He had low blood pressure, which left him feeling weak and seeing stars. stability. He walked with a halting, unsteady gait, and needed to use a cane for Nichols diagnosed Hall with hypotension, diabetes mellitus, (Tr. 570-73.) and rheumatoid arthritis

On February 12, 2007, a medical note showed Hall had no symptoms of hypoglycemia or respiratory distress, and no complaints of arthritic pain, chest pain, or shortness of breath. with minor complaints. severe. (Tr. 857.) Hall was feeling well The On March 1, 2007, Hall saw Karen Nichols.

He was sleeping about ten hours a night.

notes indicate that the physical impact of Hall's impairments was At the time, Hall was taking Amitriptyline, which made him A physical examination showed Hall He had normal posture, sleepy, Metformin, and Ibuprofen.

was in good general health, with no weight gain. His general appearance was cooperative and he was in no acute distress. but chronic joint and muscle pain. He had full range of motion in all Nichols diagnosed (Tr.

his joints, but decreased range of motion in his legs, with pain on movement. The pain had improved from his last visit. 517-20.) On March 14, 2007, Hall saw Todd Parker, PA, with St. Louis County Corrections Medicine. peripheral neuropathy. Motrin for his pain. gait. (Tr. 499-501.) On March 20, 2007, Hall saw Zachary Newland, DPM, with St. Louis Co u nty Corrections Medicine. A physical examination of Hall's feet There showed generalized tenderness, with severe dryness and peeling. Hall was complaining of leg pain and chronic Hall told Parker he needed something besides A physical examination found Hall had a normal Hall with diabetes, hypotension, arthritis, and hyperlipidemia.22

was diffuse pain throughout both feet, stemming from the neuropathy. Newland diagnosed Hall with controlled diabetes, yeast infection in the

Hyperlipidemia is the presence of an abnormally large amount of lipids in the circulating blood. Stedman's Medical Dictionary, 741, 884. - 12 -

22

skin

and

nails,

for

which

he

ordered

Lac-Hydrin,

and
23

idiopathic

peripheral neuropathy, for which he ordered Neurontin. On May 24, 2007, Hall saw Karen Nichols. taking normal Neurontin, breathing Metformin
24

(Tr. 487.) Gemfibrozil, normal lower or

At the time, Hall was

Lac-Hydrin, regular heart

Tramadol, rhythm, and no

Amitriptyline, and Ibuprofen. sounds, extremities, Hall with normal

A physical examination revealed Hall had coordination, of lesions

a

neurologic without

deformities on his feet. diabetes

He was walking with a cane. mention

Nichols diagnosed hypotension,

complication,

unspecified idiopathic peripheral neuropathy, and mixed hyperlipidemia. (Tr. 405-07.) On June 19, 2007, Dr. LeBeau completed a disability claim assessment for Hall. Hall suffered from diabetes, complicated by The neuropathic pain in his hands and Dr.

neuropathy, and chronic pain.

feet made walking difficult. According to Dr. LeBeau, Hall would likely need to rest for thirty to sixty minutes, two to three times a day. LeBeau believed Hall could not engage in even sedentary work, because his neuropathy prevented him from sitting or standing for more than an hour or two at a time. Dr. LeBeau also believed Hall's condition would Hall's nerve damage was (Tr. 364.) prevent him from working for at least a year.

permanent, and had occurred before he began treating Hall. Testimony at the Hearing

On June 27, 2007, Hall testified, by telephone, during a hearing before the ALJ. He had been arrested for an assault, and had been in

Lac-Hyrdin is used to treat dry, scaly skin conditions, and can also help relieve itching from these conditions. WebMD, http://www.webmd.co m / d rugs (last visited July 30, 2009). Idiopathic denotes a disease of an unknown cause. Stedman's Medical Dictionary, 762.
24

23

blood.

Gemfibrozil is used to help lower fats and cholesterol in the WebMD, http://www.webmd.com/drugs (last visited July 30, 2009). - 13 -

jail since January 2007.25

He had previously served sixty days of shock (Tr. 29-30.)

time for a charge for unlawful possession of a firearm. the past fifteen years.

Hall last worked as a cook, and had not worked any other jobs in In August 2005, Hall quit working as a cook at He had collected unemployment benefits Outback Steak House so he could take care of his wife, who was on disability and needed dialysis. (Tr. 25-28.) Hall suffered from diabetes, and took Metformin. Diabetes caused His back his feet and hands to swell, and he was going blind in his right eye. His knees gave out, and popped and cracked with movement. p r o b lems prevented him from standing straight up. of burning from arthritis and neuropathy. up from arthritis. was constant. ease the pain. He also complained before working at Outback, but did not apply for benefits afterwards.

His hands ached and cramped

The burning in his knees radiated to his hips, and He also took Neurontin and Amitryptyline to

Prolonged standing and sitting was painful, and Hall In prison, he spent most of the day laying in his bed. Hall did not go anywhere The prison had a special

normally sat with pillows.

His doctor had given him a cane and a walker, and physical therapy instructed him on how to use the devices. distance. He also used a wheelchair at times. (Tr. 28-35, 39.) without his cane, and did not believe he could walk any significant shower for him, the guards helped him wash his hair, and his cell was disability-equipped. stop and rest. either. Hall believed he could only walk about ten feet before he had to He could not really stand on his feet at all, and had He could not sit for long periods of time In a typical day, Hall's If fallen in his cell once.

The most lifting he did was when he worked at Outback, where She prepared his food and did the grocery

he would lift bags of potatoes and onions. wife took care of him. shopping.

In jail, he spent most the day in his cell, laying down.

he needed to be in his uniform, the guards helped him change into it.

On October 30, 2007, the Circuit Court of St. Louis County granted Hall's motion for a judgment of acquittal at the close of all evidence. The case was dismissed and Hall was ordered released. (Doc. 14.) - 14 -

25

Hall was most comfortable laying down. prison. (VE). (Tr. 31.)

(Tr. 35-39.)

Dr. LeBeau was

Hall's primary physician, but had not seen him since he had been in During the hearing, Gary Weinholt testified as a vocational expert The ALJ had the VE assume that Hall could lift and carry twenty could occasionally kneel, crouch, and crawl, and could p ounds occasionally and ten pounds frequently, required a sit-stand option, occasionally climb stairs and ramps. perform work as a (211.462-010). Given these restrictions, the VE

testified that Hall could not perform his past work as a cook, but could parking lot attendant (915.473-010) or cashier If the VE assumed Hall could lift and carry ten pounds

o c c a sionally and less than ten pounds frequently, could stand for two hours in an eight-hour day, and sit for six hours in an eight-hour day, the VE testified that about half of the parking lot attendant and cashier jobs would still be available to Hall. If the VE assumed Hall needed to rest for thirty to sixty minutes at a time, two to three times a work day, Hall would not be able to perform the parking lot attendant or cashier jobs. (Tr. 39-43.) III. DECISION OF THE ALJ

The ALJ found Hall suffered from diabetes mellitus with peripheral neuropathy, and that this impairment was severe, but that it did not meet the listing requirements. d iabetes had not resulted In particular, the ALJ found Hall's in a significant and persistent Hall showed no evidence of a He walked with a cane and Any problems with The ALJ also

disorganization of motor function.

disturbance in gross and dexterous movements.

walker, but the ALJ found the necessity of these devices questionable, and most physical examinations showed a normal gait. motor functioning, gait, or station were not persistent. that this condition was not severe. ALJ found Hall had the

found Hall suffered from osteoarthritis in his feet and left knee, but In light of these impairments, the functional capacity (RFC) to residual

occasionally lift and carry twenty pounds, and frequently lift and carry ten pounds. He could occasionally stoop, kneel, crouch, crawl, and He was not climb stairs, but never climb ropes, ladders, or scaffolds. - 15 -

able to perform prolonged sitting, standing, or walking, and needed the flexibility to stand or sit. (Tr. 11-14.) His He also noted pain in his The ALJ During the hearing, Hall testified, by telephone, from jail. knees cracked and popped, and were painful. back, and constant burning in his legs.

His most comfortable position

was laying down, and he walked with an assistive device.

believed Hall's impairments could be expected to produce some of his a lleged symptoms, but found the intensity, persistence, and limiting e f f e c t of these symptoms was not credible. X-rays of his chest were normal, x-rays of the hips, knees, ankles, and feet showed normal alignment without any fractures or abnormalities, though there was joint osteoarthritis. A stress test showed no ischemia. (Tr. 14-17.) The ALJ discounted the opinions of Dr. LeBeau and the assessments of the state agency. Dr. LeBeau's assessment was to generate evidence In addition, Dr. LeBeau saw Hall the ALJ criticized LeBeau's (Tr. for the social security appeal. own 17.) subjective complaints.

infrequently, and his conclusions appeared to rest entirely on Hall's Finally, statements as conclusory, with little evidence cited in support. medical source. 18.) The ALJ also found Hall not completely credible, and discounted his subjective complaints. First, his daily limitations could not be Second, there was little During several medical objectively verified with any certainty.

The statements by the state agency were not made by an acceptable In addition, more recent evidence showed Hall had (Tr. 17-

greater limitations than those found by the state examiner.

medical evidence to support these complaints. c o n t r ol, and he reported feeling well. extreme pain he claimed.

visits, Hall had full range of joint motion, his blood sugar was under He requested Viagra, and reported being sexually active, an indication Hall did not have the Hall's medication list did not support a Other than Dr. LeBeau, no physician had Hall's relatively weak work history also He had stopped working to care for his finding of disability, and there was no allegation of any disabling side effects from the medication. indicated Hall was disabled.

detracted from his allegations.

disabled wife, not because he suffered from any physical or mental - 16 -

impairment of his own. work.

Indeed, Hall had received unemployment benefits to

after he stopped working, a fact inconsistent with an inability

Finally, the ALJ noted that Hall's history of arrests and

convictions further detracted from the credibility of his allegations. (Tr. 18-19.) The ALJ found Hall was unable to perform his past work. RFC to work as a parking lot attendant or a cashier. But relying on the testimony of the VE, the ALJ concluded that Hall had the Because Hall was capable of performing work in the national economy, the ALJ concluded Hall was not disabled within the meaning of the Social Security Act. (Tr. 19-21.) IV. GENERAL LEGAL PRINCIPLES

The court's role on judicial review of the Commissioner's decision is to determine whether the Commissioner's final decision complies with the relevant legal requirements and is supported by substantial evidence in the record as a whole. Cir. 2009). Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th "Substantial evidence is less than a preponderance, but is Id. In determining whether the evidence Id. As long as substantial

enough that a reasonable mind would find it adequate to support the Commissioner's conclusion." is substantial, the court considers evidence that both supports and detracts from the Commissioner's decision. evidence supports the decision, the court may not reverse it merely because substantial evidence exists in the record that would support a contrary outcome or because the court would have decided the case differently. 2002). To be entitled to disability benefits, a claimant must prove he is unable to perform any substantial gainful activity due to a medically determinable physical or mental impairment that would either result in death or which has lasted or could be expected to last for at least twelve continuous months. 42 U.S.C. §§ 423(a)(1)(D), (d)(1)(A), 1 382c(a)(3)(A); Pate-Fires, 564 F.3d at 942. disability. A five-step regulatory See Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir.

framework is used to determine whether an individual qualifies for 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Bowen - 17 -

v. Yuckert, 482 U.S. 137, 140-42 (1987) (describing the five-step process); Pate-Fires, 564 F.3d at 942. Steps One through Three require the claimant to prove (1) he is not currently engaged in substantial gainful activity, (2) he suffers from a severe impairment, and (3) his disability meets or equals a listed i mpairment. Pate-Fires, 564 F.3d at 942. If the claimant does not Id. Step Four requires the suffer from a listed impairment or its equivalent, the Commissioner's analysis proceeds to Steps Four and Five. Commissioner to consider whether the claimant retains the RFC to perform past relevant work. Id. The claimant bears the burden of demonstrating he is no longer able to return to his past relevant work. Id. If the Commissioner determines the claimant cannot return to past relevant work, the burden shifts to the Commissioner at Step Five to show the claim a n t retains the RFC to perform other work. Id. If the claimant Pelkey v. fails to meet the criteria at any step of the evaluation, the process ends and the claimant is determined to be not disabled. Barnhart, 433 F.3d 575, 577 (8th Cir. 2006). In this case, the Commissioner determined that Hall could not perform his past work, but that he retained the RFC to perform other work in the national economy. V. DISCUSSION

Hall argues the ALJ's decision is not supported by substantial evidence. First, he argues that the ALJ failed to properly consider his RFC. Second, he argues the ALJ failed to properly weigh the opinion of (Doc. 13.) Dr. LeBeau.

Residual Functional Capacity Hall argues the ALJ failed to properly consider his RFC. ALJ's conclusion that his gait was usually normal, and that In any particular, he argues that substantial evidence does not support the "disorganization of motor functioning, or difficulties with gait or station, were not persistent." (Tr. 14.) The undersigned agrees. Casey The RFC is a function-by-function assessment of an individual's ability to do work-related activities based on all the evidence. - 18 -

v. Astrue, 503 F.3d 687, 696 (8th Cir. 2007). evidence, including medical records,

The ALJ retains the of treating

responsibility of determining a claimant's RFC based on all relevant observations physicians, examining physicians, and others, as well as the claimant's own descriptions of her limitations. Pearsall v. Massanari, 274 F.3d Id. Ultimately, the RFC 1211, 1217-18 (8th Cir. 2001). Before determining a claimant's RFC, the ALJ must evaluate the claimant's credibility. contained in the record. is a medical question, which must be supported by medical evidence Casey, 503 F.3d at 697; Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001). Substantial evidence does not support the ALJ's determination that Hall's gait was usually normal. In November 2005, a physical examination showed Hall had an antalgic gait. found Hall had a slow gait. heels. a cane. In January 2006, doctors

In May 2006, a physical examination

revealed Hall had an antalgic gait and could not walk on his toes or In July 2006, emergency room notes indicated Hall needed to use Later that month, a doctor noted Hall had difficulty walking. That same

In September 2006, Dr. Lorde found Hall had an antalgic gait. on the soles of his feet.

month, Dr. LeBeau found Hall had an antalgic gait, and experienced pain A short time later, Dr. LeBeau certified that In December 2006, Dr. Clohisy and Finally, in February Hall needed therapeutic shoes, and wrote that Hall was to be fitted for a cane to improve his impaired gait. Dr. Sohn also found Hall had an antalgic gait. gait, and needed a cane for stability. The government points to five pages in the record indicating Hall had a normal gait. Only one of these assessments comes from a physician, and in that case, the doctor merely checked a box indicating "gait normal." (Tr. 214); see Mason v. Shalala, 994 F.2d 1058, 1065 (3d The May Cir. 1993) ("Form reports in which a physician's obligation is only to check a box or fill in a blank are weak evidence at best."). that he walked with a cane. (Tr. 499, 542, 561.) (Tr. 406.) 24, 2007 exam report did not state that he had a normal gait, but rather The final three citations came a licensed from Todd Parker, PA, with the Saint Louis County Department of Health. A physician's assistant is not - 19 -

2007, medical prison staff noted Hall walked with a halting, unsteady

physician or psychologist, and therefore not an "acceptable medical source," within the meaning of the federal regulations. § 404.1513(a). 20 C.F.R. See 20 Moreover, his contact with Hall was limited to three

unique visits in the prison setting, over a forty-day period. extent of a treating relationship).

C.F.R. § 404.1527(d) (noting the importance of the length, nature, and Looking to the record, substantial evidence does not support the ALJ's determination that Hall's gait was usually normal. antalgic, slow, or otherwise impaired. must be remanded. Weighing Medical Opinion Hall argues the ALJ failed to properly weigh the opinion of Dr. LeBeau. In particular, he argues that the ALJ erred by discounting the The disability assessment Dr. LeBeau completed on June 19, 2007. undersigned disagrees. The ALJ has the role of resolving conflicts among the opinions of various treating and examining physicians. Pearsall, 274 F.3d at 1219. The ALJ may reject the conclusions of any medical expert, whether hired by the government or the claimant, if they are inconsistent with the record as a whole. Id. Normally, the opinion of the treating physician Casey, 503 F.3d at 691. The opinion is entitled to substantial weight. Instead, s ubstantial evidence in the record indicates Hall's gait was usually The ALJ's decision, therefore,

of a consulting physician, who examines a claimant once, or not at all, generally receives very little weight. 452 (8th Cir. 2000). Still, the opinion of the treating physician is not conclusive in determining disability status, and must be supported by medically acceptab l e clinical or diagnostic data. Casey, 503 F.3d at 691. The ALJ may credit other medical evaluations over the opinion of a treating physicia n if the other assessments are supported by better or more thorough medical evidence, or when the treating physician's opinions are internally inconsistent. Guilliams v. Barnhart, 393 F.3d 798, 803 (8th In Cir. 2005); Cantrell v. Apfel, 231 F.3d 1104, 1107 (8th Cir. 2000). Singh v. Apfel, 222 F.3d 448,

determining how much weight to give a treating physician's opinion, the - 20 -

ALJ must consider the length of the treatment relationship and the frequency of examinations. Casey, 503 F.3d at 692. Dr. LeBeau was one of Hall's regular physicians, having evaluated him in August 2006, September 2006, October 2006, and again in December 2006. However, Dr. LeBeau completed the disability claim form in June See 2006, nearly six-months after his most recent examination of Hall. j u d gment) (discounting a doctor's conclusions where, among

Hunter v. Barnhart, 210 F. App'x 753, 757 (10th Cir. 2006) (order and other reasons, the form had been completed nine months after the doctor's most recent examination); see also Swann v. Astrue, No. 3:07CV129/LAC/EMT, 2008 WL 818500, at *10 (N.D. Fla. Mar. 26, 2008) (discounting a doctor's conclusions where, among other reasons, the form had been completed three months after the doctor's most recent examination). In addition, See Dr. LeBeau's answers on the one-page form were short answers, with no medical support or analysis to support the summary conclusions. Browning v. Sullivan, 958 F.2d 817, 823 (8th Cir. 1992) (noting that a conclusory diagnosis letter does not overcome substantial evidence to the contrary). Given the absence of recent treatment, and the conclusory nature of Dr. LeBeau's answers, the ALJ did not err in discounting the disability assessment Dr. LeBeau completed on June 19, 2007. Employment Benefits In the decision, the ALJ noted that Hall received unemployment benefits after he stopped working. (Tr. 19.) However, Hall's testimony during the hearing indicated he applied for disability benefits before he began working at Outback Steak House, but that he did not apply for unemployment benefits after he stopped working there. (Tr. 28.) Unless there is evidence to contradict Hall's testimony, the ALJ should reconsider this statement on remand. VI. RECOMMENDATION

For the reasons set forth above, it is the recommendation of the undersigned that the decision of the Commissioner of Social Security be reversed and remanded under Sentence 4 of 42 U.S.C. § 405(g). - 21 On

remand, the ALJ should reconsider Hall's RFC. reconsider the statement that indicated Hall benefits after he stopped working.

The ALJ should also collected disability

The parties are advised that they have ten days to file written objecti o ns to this Report and Recommendation. The failure to file timely written objections may waive the right to appeal issues of fact.

/S/ David D. Noce UNITED STATES MAGISTRATE JUDGE

Signed on August 17, 2009.

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