Rogalski v. Astrue
MEMORANDUM OPINION;... For the reasons set forth above, the decision of the Commissioner of Social Security is reversed and remanded for further proceedings consistent with this memorandum opinion. An appropriate Judgment Order is issued herewith; (cc: Bureau of Hearings and Appeals); Signed by Magistrate Judge David D. Noce on 11/28/2011; (DJO) Modified on 11/28/2011 to edit text (DJO).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
MICHAEL J. ASTRUE,
Commissioner of Social Security,
No. 4:10 CV 2391 DDN
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 Antoinette Rogalski for disability insurance
benefits under Title II of the Social Security Act (Act), 42 U.S.C. §
423, and for supplemental security income under Title XVI of that Act,
42 U.S.C. § 1382.
The parties have consented to the exercise of plenary
authority by the undersigned United States Magistrate Judge pursuant to
28 U.S.C. § 636(c).
For the reasons set forth below, the court reverses the decision
denying benefits and remands.
Plaintiff Antoinette Rogalski, who was born in 1962, filed her
applications for disability insurance benefits and supplemental security
income on November 14, 2008, alleging she became disabled on April 12,
2008, on account of discogenic and degenerative back disorder and
(Tr. 56-57, 187-94.)
Her claims were denied initially on
February 19, 2009. (Tr. 58-62.) On April 21, 2010, following a hearing,
an administrative law judge (ALJ) ruled plaintiff was not disabled under
On October 20, 2010, the Appeals Council denied
plaintiff’s request for review.
Thus, the decision of the
ALJ stands as the final decision of the Commissioner.
complaining of depression and neck pain.
Dr. Rice diagnosed muscular
plaintiff’s neck pain and prescribed Effexor for her depression.
On October 10, 2007, plaintiff saw Dr. Rice for throat pain, pelvic
discomfort, and general body aches.
a 1 to 10 scale.
Plaintiff rated her pain as a 6 on
Dr. Rice diagnosed a urinary tract infection and
On April 10, 2008, plaintiff visited Barnes-Jewish St. Peters
Hospital due to dizziness and difficulty with her memory.
physician diagnosed chronic sinusitis and prescribed Claritin. (Tr. 30304.)
On April 16, 2008, plaintiff saw Dr. Rice upon reports of anxiety
attacks, an inability to concentrate or focus, and concern for her blood
pressure because of her hypertension. Dr. Rice prescribed plaintiff with
Xanax and told plaintiff to continue taking her hypertension medication.
On May 20, 2008, plaintiff returned to Barnes-Jewish St. Peters with
and Toradol, a pain reliever.
Several lab tests were
conducted. On May 21, 2008, an abdominal CT revealed an adrenal mass and
Plaintiff was diagnosed with chills accompanied by a
fever, abdominal pain, and a urinary tract infection.
Ciprofloxacin is used to treat a variety of bacterial infections.
WebMD, http://www.webmd.com/drugs (last visited November 9, 2011).
http://www.webmd.com/drugs (last visited November 9, 2011).
Toradol is used for the short-term treatment of moderate to severe
pain in adults. WebMD, http://www.webmd.com/drugs (last visited November
On 11 occasions in July, August, September, and October, 2008,
plaintiff visited Psych Care Consultants due to mental issues and
On July 11, 2008, plaintiff was diagnosed with
depression and anxiety and prescribed Celexa, an antidepressant,4 and had
begun taking Lexapro, an anti-anxiety medication.5
plaintiff discontinued Celexa.
On August 8, 2008,
On August 11, 2008, plaintiff began
taking Cymbalta, an antidepressant,6 and anti-anxiety medication. It was
noted that she had major depression and sciatica.
10, 2008, plaintiff was diagnosed with bipolar disorder and prescribed
Seroquel, a medication used to treat mental illnesses.7
2008, plaintiff was diagnosed with chronic pain.
On October 10
On August 10, 2008, Plaintiff returned to Barnes-Jewish St. Peters
Hospital for complaints of a burning pain that started in her buttocks,
going through her left leg and to her toes.
She was diagnosed with
sciatica and prescribed Percocet, a pain reliever.
Plaintiff was admitted to CenterPointe Hospital from August 15,
increased anxiety, racing thoughts, and feelings of hopelessness and
Her condition was noted as stable upon discharge and her
diagnoses were major depressive disorder, recurrent, severe and sciatic
She was taking Cymbalta, Seroquel, and Lexapro.
discharge, her Global Assessment of Functioning (GAF) score was 40, which
http://www.webmd.com/drugs (last visited November 9, 2011).
Lexapro is used to treat depression and anxiety.
http://www.webmd.com/drugs (last visited November 9, 2011).
Cymbalta is used to treat depression and anxiety.
http://www.webmd.com/drugs (last visited November 9, 2011).
Seroquel is used to treat certain mental/mood conditions, including
bipolar disorder and schizophrenia. WebMD, http://www.webmd.com/drugs
(last visited November 9, 2011).
A GAF score, short for Global Assessment of Functioning, helps
summarize a patient’s overall ability to function. A GAF score has two
components. The first component covers symptom severity and the second
was the same as upon admission and the highest score in the past year.
On September 2, 2008, plaintiff returned to Dr. Rice to follow-up
with her depression.
Dr. Rice noted that her depression was slowly
improving and told plaintiff to continue with Seroquel and Cymbalta. Dr.
Rice also recommended that plaintiff return to work in order to improve
her mental health.
During this visit, plaintiff also complained of pain
from her left buttocks going down through her left leg.
diagnosed left-sided sciatica and prescribed Medrol, an anti-inflammatory
On October 23, 2008, plaintiff visited Daniel T. Mattson, M.D.,
M.Sc., for a neurological consultation due to left leg pain.
also complained of a diffuse, burning type sensation in her back,
occasional incontinence, and heavy menstrual bleeding.
ordered an MRI of the spine, an abdominal and pelvic CT, nerve conduction
testing, and several other tests.
He also prescribed Neurontin, a pain
He opined that her symptoms sounded like a peripheral process
related to sciatica and that her massive weight loss may indicate a
On October 27, 2008, the MRI and CT ordered by Dr. Mattson were
On November 13, 2008, Dr. Mattson opined that plaintiff’s
component covers functioning. A patient’s GAF score represents the worst
of the two components. On the GAF scale, a score from 31 to 40 means
there is impairment in reality testing or communication (such as speech
that is at times illogical, obscure, or irrelevant), or major impairment
in several areas, such as work or school, family relations, judgment,
thinking, or mood (such as depressed, avoids friends, neglects family,
and is unable to work). Diagnostic and Statistical Manual of Mental
Disorders, 32-34 (4th ed., American Psychiatric Association 2000).
Medrol is used to treat various conditions such as allergic
disorders, arthritis, blood diseases, breathing problems, certain
cancers, eye diseases, intestinal disorders, and skin diseases. WebMD,
http://www.webmd.com/drugs (last visited November 9, 2011).
Neurontin is used to prevent and control seizures and to relieve
http://www.webmd.com/drugs (last visited November 9, 2011).
imaging work-up did not show any malignant process and suspected a
significant psychogenic overlay to plaintiff’s pain complaints.
referred plaintiff to Dr. Vellinga for pain management.
nerve conduction test was consistent with mild peroneal neuropathies.
However, no cause for plaintiff’s symptoms was identified.
On December 2, 2008, plaintiff underwent an MRI and ankle/brachial
index test due to leg pain.
The test showed no evidence of resting
arterial insufficiency of the lower extremities.
Plaintiff then began to visit Michael Spezia, M.D., from February
Azithromycin, an antibiotic,
Ciproflox for her eyes, Ranitidine, an
antacid medication,12 and a proair inhaler.
On April 20, 2009, after an
abdominal and pelvic CT, Dr. Spezia diagnosed abdominal pain.
On February 11, 2009, Nancy Dunlap completed a Physical Residual
Functional Capacity Assessment (RFC) of plaintiff for the period of April
12, 2008, to April, 2009.
Ms. Dunlap concluded that plaintiff could
occasionally lift and/or carry twenty pounds and frequently lift and/or
carry ten pounds.
Ms. Dunlap also determined that plaintiff could stand
and/or walk about six hours in an eight-hour workday and could sit for
about six hours in an eight-hour workday. Finally, Ms. Dunlap noted that
plaintiff had multilevel degenerative disc disease with no significant
On February 17, 2009, Richard Moreno, Psy.D., Ph.D., completed a
Psychiatric Review Technique of plaintiff.
Dr. Moreno noted depression
and bipolar disorder.
He also noted moderate limitation of daily living
Dr. Moreno also completed a Mental
persistence, or pace.
Azithromycin is used to prevent and treat a very serious type of
infection. WebMD, http://www.webmd.com/drugs (last visited November 9,
Ranitidine is used to treat ulcers of the stomach and intestines
and to treat certain stomach and throat problems caused by too much
stomach acid. WebMD, http://www.webmd.com/drugs (last visited November
Residual Functional Capacity Assessment.
In his assessment, Dr. Moreno
understanding and memory, sustained concentration and persistence, social
interaction, and adaptation.
Overall, he concluded that plaintiff
retained the ability to understand, remember, and carry out simple
Testimony at the Hearing
On November 16, 2009, plaintiff testified to the following at a
hearing before an ALJ.
Plaintiff has been living with her son in his home in St. Louis,
Missouri since November, 2008.
She has completed the twelfth
She did assembly line and production work at a Schnucks Bakery
plant until April 12, 2008.
At the time of the hearing, she
was no longer seeing a psychiatrist or psychologist and was not taking
any psychogenic medication.
She has spinal degenerative
disc disease causing inflammation in her left lower extremity. She takes
medication for acid reflux and stomach problems.
hearing, plaintiff was no longer alleging any mental impairment.
Plaintiff can only sit for 15 minutes and then she has to stand up
and move around.
She can only stand up and walk around for about three
minutes before she has to sit down.
She cannot go up and down steps.
When taking a shower, she needs her son’s fiancé to assist her.
tries to sweep the floors with a broom but can only do very little of
After making coffee in the morning, plaintiff sits in her kitchen
because she cannot walk from the kitchen to the front room.
to do the dishes but cannot stand up for very long, so she sits down, but
cannot do that for very long either, so she must stand up again.
frequently sits down and then stands up again.
She walks her
dog around the house but after walking halfway to the backyard, about 20
feet, she has to sit down.
After walking the dog, she sits
on the couch, but then must stand up again in 15 minutes and continues
alternating between sitting and standing.
She spends most of her day
either sitting or standing.
She does not leave the house or interact
with anyone during most of the day.
In the afternoon,
plaintiff mostly naps on the couch because she does not have a bed.
naps and sleeps only 20 minutes at a time.
Her son cooks and does the
dishes for her because she cannot stand. She spends her evenings sitting
Plaintiff also spends much of the day in the bathroom and often does
not eat because of her colon.
During her monthly menstrual cycle, her
endometriosis causes her problems and makes it difficult to wear her
white bakery uniform while at work.
Sometimes her cycle lasts 28 days.
Plaintiff has a painful and burning sensation in her left leg that
prevents her from laying down on her left side.
burns whether she is laying down or walking.
Her leg is in pain and
Dr. Spezia told her that
she cannot take anything for her joints or back problem.
He told her
that it was going to get worse and that she would eventually be confined
to a wheelchair.
cannot lift her left arm.
She feels her back is getting worse and
DECISION OF THE ALJ
On April 21, 2010, the ALJ issued an unfavorable decision.
At Step One, the ALJ found that plaintiff met the insured status
requirements of the Act and had not engaged in substantial gainful
activity since April 12, 2008, her alleged onset date.
At Step Two, the
ALJ found that plaintiff had severe impairments of degenerative disc
disease and obesity.
The ALJ also noted that at the hearing plaintiff
testified that she was no longer receiving medication for a psychiatric
impairment and was not alleging a mental impairment.
At Step Three, the ALJ found that plaintiff did not suffer from an
impairment or combination of impairments of a severity that meets or
medically equals the required severity of a listing.
The ALJ then found that plaintiff had the RFC to perform “light”
work as defined in the regulations, except that she is limited to
occasional bending, stooping, crouching, and crawling.
ALJ found that the plaintiff’s medically determinable impairments could
reasonably be expected to cause the alleged symptoms, but that her
impairments, symptoms, and limitations were not as extreme as she
However, the ALJ found that plaintiff was not credible in her
statements about the intensity, persistence, and limiting effects of the
symptoms and that these statements were inconsistent with the RFC
Id. The ALJ also noted that plaintiff’s failure to seek the
pain management recommended by Dr. Mattson and failure to follow up with
Dr. Mattson was an indication that her symptoms were not as severe as
The ALJ further found the lack of any prescription for strong
pain medication inconsistent with plaintiff’s complaints of disabling
In further examination of plaintiff’s lack of credibility, the ALJ
reasoned that plaintiff did not apply for disability benefits until after
she lost her home.
Plaintiff was able to stay in her son’s home alone
while he had a full-time job.
The ALJ further noted that Dr. Rice
advised plaintiff to go back to work and that none of her treating or
examining physicians stated that she was disabled or unable to work.
At Step Four, the ALJ found that plaintiff was able to perform her
past relevant work as a donut maker, as she performed it.
therefore found plaintiff not disabled under the Act.
GENERAL LEGAL PRINCIPLES
The court’s role on judicial review of the Commissioner’s decision
is to determine whether the Commissioner’s findings comply with the
relevant legal requirements and is supported by substantial evidence in
the record as a whole.
Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir.
2009). “Substantial evidence is less than a preponderance, but is enough
In determining whether the evidence is
substantial, the court considers evidence that both supports and detracts
from the Commissioner's decision.
As long as substantial 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.
See Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002).
To be entitled to disability benefits, a claimant must prove she 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
1382c(a)(3)(A); Pate-Fires, 564 F.3d at 942.
A five-step regulatory
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
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) 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
Pate-Fires, 564 F.3d at 942.
If the claimant does not
suffer from a listed impairment or its equivalent, the Commissioner’s
analysis proceeds to Steps Four and Five.
Step Four requires the
Commissioner to consider whether the claimant retains the RFC to perform
past relevant work.
The claimant bears the burden of demonstrating
she is no longer able to return to her past relevant work.
Commissioner determines the claimant cannot return to past relevant work,
the burden shifts to the Commissioner at Step Five to show the claimant
retains the RFC to perform other work in the national economy.
Plaintiff argues the ALJ erred by failing to sufficiently analyze
Plaintiff also argues that the ALJ’s RFC determination is
sufficiently consider her obesity and failed to get consultations about
limitations arising from her obesity. Finally, plaintiff argues that the
ALJ erred in analyzing the bending and stooping requirements of her past
relevant work and failed to get appropriate vocational testimony.
credibility as required by Polaski v. Heckler .
The credibility of a
claimant's subjective testimony is primarily a decision for the ALJ, not
Pearsall v. Massanari, 274 F.3d 1211, 1217-18 (8th Cir.
In Polaski v. Heckler, the Eighth Circuit held that when weighing
a claimant's testimony, the ALJ must take into account (1) the claimant's
daily activities; (2) the duration, frequency, and intensity of pain; (3)
precipitating and aggravating factors; (4) dosage, effectiveness, and
Polaski, 739 F.2d at 1322.
The presence or absence of objective medical
evidence is a factor that the ALJ may consider.
Mouser v. Astrue, 545
F.3d 634, 638 (8th Cir. 2008).
Polaski factors in making a credibility determination.
Casey v. Astrue,
503 F.3d 687, 695 (8th Cir. 2007).
At the hearing, plaintiff testified that her symptoms were
so severe and limiting that she could do no more than spend her entire
day at home alternating between sitting and standing.
Plaintiff testified that she could only stand for a few minutes and then
she had to sit down, but that she could only sit down for several minutes
and then had to stand up.
Plaintiff also testified that
her impairment made sleeping and chores difficult, and that her symptoms
are so severe that she could not walk up and down stairs and could not
take a shower without assistance.
In discounting plaintiff’s credibility, the ALJ reasoned that none
of plaintiff’s treating physicians stated that she was disabled or unable
to work; one of plaintiff’s doctors recommended that she return to work.
739 F.2d 1320 (8th Cir. 1984)
(Tr. 281.) That a physician did not “submit[ ] a medical conclusion that
[the claimant] is disabled and unable to perform any type of work” is a
significant factor for the ALJ to consider.
Young v. Apfel, 221 F.3d
1065, 1069 (8th Cir. 2000).
Furthermore, the ALJ noted that plaintiff failed to follow up and
pursue ongoing care for her symptoms, despite a request to do so.
If there is no evidence of ongoing pursuit of care from
accepted sources, an ALJ may properly discount a claimant's credibility
based on a failure to pursue regular medical treatment.
Barnhart, 314 F.3d 964, 967 (8th Cir. 2003); see Gwathney v. Chater, 104
F.3d 1043, 1045 (8th Cir. 1997) (claimant's failure to seek medical
assistance for her alleged physical and mental impairments contradicts
her subjective complaints of disabling conditions and supports the ALJ's
decision to deny benefits).
In her disability report, plaintiff stated that she had not sought
pain management treatment because her insurance ran out.
inability to pay may justify a claimant's failure to seek medical care.
Vasey v. Astrue, No. 1:08 CV 46 SWW/JTR, 2009 WL 4730688, at *5 (E.D.
Ark. Dec. 3, 2009); Skovlund v. Astrue, No. CIV 08-4078, 2009 WL 3055421,
at *24 (D.S.D. Sept. 24, 2009).
However, a claimant must present
“supporting evidence” that her failure to seek medical treatment was due
to the expense.
George v. Astrue, 301 F. App’x 581, 582 (8th Cir.
2008)(per curiam); see also Carrigan v. Astrue, No. 4:08 CV 4018, 2009
WL 734116, at *6-7 (W.D. Ark. Mar. 17, 2009) (claimant's “bare statement”
establish that inability).
Since plaintiff did not “identify any steps
she took to obtain low cost medical care,” and because “she did not
testify that she was denied medical care because of her financial
condition,” the ALJ properly considered her lack of follow up medical
treatment in discounting her credibility.
Weaks v. Shalala, 1993 WL
498046, at *1, 12 F.3d 1104 (8th Cir. 1993) (unpublished table opinion);
see also Osborne v. Barnhart, 316 F.3d 809, 812 (8th Cir. 2003);
Carrigan, 2009 WL 734116, at *7.
The ALJ also noted that plaintiff was not taking any strong pain
A lack of strong pain medication is inconsistent with
subjective complaints of disabling pain. Haynes v. Shalala, 26 F.3d 812,
814 (8th Cir. 1994); Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999).
Finally, the ALJ took into consideration that plaintiff did not apply for
disability benefits until after she lost her home.
(Tr. 14, 322.)
While the ALJ did not recite and individually discuss each Polaski
factor, the ALJ’s analysis reflects that the ALJ considered the relevant
Therefore, the ALJ did not err in assessing plaintiff’s
Casey, 503 F.3d at 695 (recognizing that the ALJ need not
expressly state and discuss each Polaski factor).
condition and failed to develop a full and fair record by not ordering
appropriate consultative examinations regarding her mental issues.
“A social security hearing is a non-adversarial proceeding, and the
ALJ has a duty to fully develop the record.”
926, 930 (8th Cir. 2006).
Smith v. Barnhart, 435 F.3d
Failure of an ALJ to develop a full and fair
record on an issue necessitates reversal and remand of that issue.
Highfill v. Bowen, 832 F.2d 112, 115 (8th Cir. 1987).
due to failure to develop a full and fair record is warranted only where
such failure is unfair or prejudicial. Haley v. Massanari, 258 F.3d 742,
750 (8th Cir. 2001); Shannon v. Chater, 54 F.3d 484, 488 (8th Cir. 1995).
If a claimant does not assert any limitation in function resulting
from an impairment at the hearing, the claimant waives the right to raise
the claim on appeal.
Anderson v. Barnhart, 344 F.3d 809, 814 (8th Cir.
Furthermore, an ALJ is under no “‘obligation to investigate a
claim . . . not offered at the hearing as a basis for disability.’”
v. Chater, 76 F.3d 906, 909 (8th Cir. 1996) (citation omitted).
At her hearing, plaintiff expressly stated that she was not pursuing
a mental impairment, was not seeing a psychiatrist or psychologist, and
was not taking psychiatric medication.
(Tr. 37-38, 41.)
Based on this
record, the ALJ was under no duty to explore and evaluate whether
plaintiff suffered from a disabling mental impairment.
Residual Functional Capacity
Plaintiff argues that the ALJ’s RFC determination was not supported
by substantial evidence because the ALJ failed to properly analyze and
consider the nonexertional limitations caused by her obesity.
examinations to determine the effects of her obesity.
A claimant’s RFC is a medical question and the ALJ's determination
of RFC must be supported by substantial evidence in the record.
v. Massanari, 259 F.3d 707, 711 (8th Cir. 2001); Lauer v. Apfel, 245 F.3d
700, 704 (8th Cir. 2001); Singh v. Apfel, 222 F.3d 448, 451 (8th Cir.
RFC is what a claimant can do despite her limitations, and it
must be determined on the basis of all relevant evidence, including
medical records, physician's opinions, and a claimant's description of
Donahoo v. Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001);
20 C.F.R. § 404.1545(a).
While the ALJ is not restricted to medical
evidence alone in evaluating RFC, the ALJ is required to consider at
least some evidence from a medical professional. Lauer, 245 F.3d at 704.
limitations, and the exertional limitations alone do not warrant a
finding of disability, the ALJ must consider the extent to which the
nonexertional limitations further diminish the claimant's work capacity.”
McGeorge v. Barnhart, 321 F.3d 766, 768 (8th Cir. 2009).
limitations are limitations other than on strength but which nonetheless
reduce an individual's ability to work.”
827 n. 2 (8th Cir. 1988).
Asher v. Bowen, 837 F.2d 825,
Examples include “mental, sensory, or skin
manipulative limitations or environmental restrictions.”
C.F.R., Pt. 404, Subpt. P, App. 2, § 200.00(e) (1992).
Id.; see 20
Obesity is an
impairment which might cause nonexertional limitations and which might
significantly restrict a claimant's ability to perform the full range of
Lucy v. Chater, 113 F.3d 905, 909 (8th Cir. 1997).
However, the ALJ need not discuss the claimant’s obesity in an RFC
claimant’s ability to perform work-related functions because of the
See McNamara v. Astrue, 590 F.3d 607, 611 (8th Cir. 2010);
Forte v. Barnhart, 377 F.3d 892, 896 (8th Cir. 2004). A claimant’s
failure to allege work-related limitations caused by obesity further
supports an ALJ’s abstention from discussing the claimant’s obesity.
McNamara, 590 F.3d at 611; see Anderson v. Barnhart, 344 F.3d 809, 814
(8th Cir. 2003).
If “neither the medical records nor [the claimant’s]
testimony demonstrates that her obesity results in additional workrelated limitations,” then “it [is] not reversible error for the ALJ's
opinion to omit specific discussion of obesity” in the RFC analysis.
McNamara, 590 F.3d at 612.
The ALJ in this case determined that plaintiff’s obesity was severe.
However, none of plaintiff’s physicians placed any physical
limitations on her ability to perform work-related functions because of
her obesity; Dr. Rice recommended that plaintiff return to work.
Furthermore none of plaintiff’s physicians noted her obesity and
none placed any physical limitations on her ability to perform any
functions, work-related or otherwise.
At the hearing, plaintiff did not
testify to any work-related limitations caused by her obesity.
Because neither plaintiff’s medical records nor her testimony
indicated that she had work-related limitations from her obesity, the
ALJ’s failure to discuss any work-related limitations caused by her
obesity or to order a consultative examination was not error.
590 F.3d at 612; see Strickland v. Barnhart, 143 F. App’x 726, 727 (8th
Cir. 2005) (per curiam) (holding ALJ’s failure to discuss the effect of
the claimant’s obesity on the claimant’s RFC was not error because no
Plaintiff next argues that the ALJ erred in determining her RFC by
improperly expressing the RFC determination initially in terms of the
exertions required for “light” work.
SSR 96-8p states in relevant part
At step 4 of the sequential evaluation process, the RFC must
not be expressed initially in terms of the exertional
categories of “sedentary,” “light,” “medium,” “heavy,” and
“very heavy” work because the first consideration at this step
is whether the individual can do past relevant work as he or
she actually performed it.
SSR 96-8p, 1996 WL 374184 (July 2, 1996).
In her opinion, the ALJ stated that plaintiff had the “residual
404.1567(b) and 416.967(b) except she is limited to occasional bending,
stooping, crouching, and crawling.” (Tr. 12.) While the ALJ did express
plaintiff’s RFC in terms of the “light” exertional category, the ALJ also
specifically addressed plaintiff’s ability to bend, stoop, crouch, and
crawl. Moreover, the ALJ’s RFC determination is supported by a narrative
Knox v. Astrue, 327 F. App’x 652, 657 (7th Cir. 2009)
(“Although the RFC assessment is a function-by-function assessment, . .
. the expression of a claimant’s RFC need not be articulated function-byfunction.”).
While the ALJ’s decision writing may have been deficient,
plaintiff has not shown how this affected the ALJ’s decision. See, e.g.,
Buckner v. Astrue, 646 F.3d 549, 559 (8th Cir. 2011) (holding that
reversal is not required by an ALJ’s deficient opinion writing unless
that deficiency affected the outcome).
Thus, the ALJ’s use of “light
work” in plaintiff’s RFC does not require remand.
Past Relevant Work
Plaintiff argues that the ALJ erred in analyzing the bending and
stooping requirements of her past relevant work as a donut maker in a
The court agrees.
An ALJ is required to make explicit findings of the actual physical
and mental demands of the claimant’s past relevant work and then must
compare them with the claimant’s RFC.
Lowe v. Apfel, 226 F.3d 969, 972
(8th Cir. 2000); Ingram v. Chater, 107 F.3d 598, 604 (8th Cir. 1997).
For cases involving severe exertional impairments, such as degenerative
disc disease and obesity, where the ALJ as here finds the claimant is
“[d]etailed information about strength, endurance, and manipulative
ability” must be obtained.
SSR 82-62, 1982 WL 31386, at *3.
concerning the work the claimant has done during the relevant period of
See 20 C.F.R. § 404.1560(b)(2).
Sources of this information
include, without limitation, vocational experts or specialists, the
Dictionary of Occupational Titles (DOT) and its companion volumes and
supplements, published by the Department of Labor, as well as the
claimant’s own description of her past work.
In a decision that
the claimant can perform her past relevant job, the ALJ must explicitly
describe the physical and mental demands of this job and decide whether
plaintiff’s RFC would permit her to return to this past work. SSR 82-62,
1982 WL 31386, at *4.
The ALJ did not make sufficient, specific findings of what physical
employment as a donut maker in a bakery factory.
this regard was conclusory.
The only finding in
(Tr. 14)(“The claimant is capable of
performing past relevant work as a donut maker, as she performed it.
This work does not require the performance of work related activities
precluded by the claimant’s residual functional capacity (20 CFR 404.1565
Therefore, the action must be reversed and remanded for
the rendering of these cardinal findings.
Vocational expert testimony
Plaintiff argues that the ALJ should have solicited testimony from
a vocational expert because she was unable to perform her past relevant
work and because she suffered from nonexertional limitations.
the ALJ must reconsider on remand whether plaintiff can perform her past
relevant work, the need for consideration of vocational expert testimony
will be considered by the ALJ on remand.
For the reasons set forth above, the decision of the Commissioner
of Social Security is reversed and remanded for further proceedings
consistent with this memorandum opinion.
An appropriate Judgment Order
is issued herewith.
David D. Noce
UNITED STATES MAGISTRATE JUDGE
Signed on November 28, 2011.
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