Porter v. Social Security Administration

Filing 14

MEMORANDUM AND ORDER. (see order for details) IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and the case is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this Memorandum and Order. A separate Judgment in accord with this Memorandum and Order is entered this date. Signed by District Judge Catherine D. Perry on 09/11/2012. (CBL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
PATRICIA PORTER,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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) Case No. 4:11CV540 CDP
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MEMORANDUM AND ORDER
This is an action for judicial review of the Commissioner’s decision denying
Patricia Porter’s application for disability insurance benefits under Title II of the
Social Security Act, 42 U.S.C. §§ 401 et seq. Section 205(g) of the Act, 42 U.S.C.
§ 405(g), provides for judicial review of the Commissioner’s final determination.
Porter alleges that she is disabled due to coronary artery disease, hypertension,
bilateral lower extremity disease, and anemia. Because I find that the decision
denying benefits was not supported by substantial evidence, I will reverse the
decision of the Commissioner.
Procedural History
Porter filed her application for benefits on July 23, 2007. The claim was
initially denied on February 8, 2008. On July 27, 2009, following a hearing, an

Administrative Law Judge denied Porter’s claim. On February 9, 2011, the
Appeals Council of the Social Security Administration denied Porter’s request for
review. Thus, the decision of the ALJ stands as the final decision of the
Commissioner.
Evidence Before the Administrative Law Judge
Application for Benefits
In her application for benefits, Porter stated that she was born in 1958 and
became disabled beginning on July 17, 2007 because she had a heart attack. She
listed her disabilities as heart problems and high blood pressure. In the disability
function report filed in connection with her claim, Porter described her daily
routine as getting up, caring for herself, taking her medication, and then going for
a short walk. She stated that she would then come home, fix breakfast, rest, watch
television, and take a nap. After fixing herself lunch, Porter then watched more
television and spent time with her grandchildren. Porter claimed that she then
prepared dinner and got ready for bed. She stated that she could no longer work,
run errands, or go on social outings because of her disability, and that she had
anxiety and trouble sleeping because she was worried about finances. She
reported memory loss and depression, and said that she avoided social situations
because she could not “relate to others.” Porter noted difficulties with lifting (only
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five pounds), squatting, bending, standing, reaching, walking, climbing stairs,
memory, completing tasks, and getting along with others. She said that her
husband was now responsible for bill paying and maintaining the household and
property as a result of her condition. Porter completed the function report on
August 11, 2007.
On March 23, 2008, Porter updated her disability report. In response to the
question about how her illnesses affect her ability to care for her personal needs,
Porter made the following statement:
I’m able to complete my personal care needs. However, I have to
move more slowly. I also have to take more breaks. If I try to move
too fast, I get short of breath. Sometimes my arms get tired when
styling my hair since I’ve had my heart attack. I have difficulty
getting out of the bathtub after soaking and relaxing. I try not to
bathe without someone being in my home with me.
When asked what changes have occurred in her daily activities since she last
completed her disability report, Porter responded as follows:
I’m able to do light household chores and my husband does most of
the tasks. While doing any chore around my home, I have to take
frequent breaks and move slowly to avoid getting short of breath. At
times, I get chest/arm pain and tingling while attempting to do
household chores. My grandkids do the dishes. My husband does the
laundry, dusting, sweeping, vacuuming, mopping and yardwork. My
husband or daughter goes with me to grocery shopping to help me
when needed. I use the cart for support and I take frequent breaks. I
go shopping a couple times a month. My husband does a majority of
the cooking.
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Medical Records
Porter was hospitalized at St. Louis University Hospital from May 6-10,
2007 for an ST-elevated myocardial infarction, hypercholesterolemia, mild acute
renal failure, and right groin hematoma. Her discharge diagnosis also included
tobacco abuse. According to her records, Porter went to the emergency room
complaining of severe chest pain, numbness, and nausea and was admitted to the
hospital until her pain “resolved spontaneously.” A cardiac catheterization
revealed two-vessel coronary artery disease with left anterior descending artery
having a 100% occlusion in the mid portion and the right coronary artery having a
distal 50-60% stenosis. Porter was also noted to have microcytic amenia. Porter
was discharged from the hospital with instructions to rest and not work until she
obtained a release from her primary care physician. She was also advised to quit
smoking, eat a heart healthy diet, and get a repeat stress test in one month.
On July 18, 2007, Porter received a diagnostic left heart catheterization,
which revealed: one vessel obstructive coronary artery disease with in-stent
restenosis of the left anterior descending coronary artery stent; preserved left
ventricular systolic function; normal left ventricular filling pressures; systemic
hypertension; and successful percutaneous intervention with placement of a 3.0 x
28 mm Cypher drug eluding stent to treat in-stent restenosis in the mid-left
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anterior descending coronary artery. Twelve months of Plavix therapy was
recommended.
On August 20, 2007, Porter was seen by Denise L. Janosik, M.D. for her
cardiac rehabilitation evaluation. Her chart noted that she received a Cypher drugeluding stent on July 18, 2007 to treat her in-stent stenosis and was now doing
well. Porter denied any angina or exertional dyspnea. Dr. Janosik reported that
Porter’s known risk factors for coronary artery disease included positive family
history, history of hypertension, elevated cholesterol, and being a previous heavy
smoker. Porter’s weight fluctuated, and she reported having trouble sleeping at
night. Porter denied having any GI symptoms, polyuria, polydipsia, hot or cold
intolerance, arthritic pain, or depression. Porter’s lungs were clear, her heart had
regular rate and rhythm with no murmur, her extremities were without edema, and
her peripheral pulses were intact. Dr. Janosik’s impressions were coronary artery
disease without angina and hyperlipidemia. Porter was prescribed Zetia and
ordered to continue cardiac rehabilitation.
On August 22, 2007, Porter was diagnosed with claudication and
diminished lower extremity pulses. On the same day, a cardiac rehabilitation
nurse reported that Porter had completed 10 of her 26 cardiac rehabilitation
sessions. Porter stated that her prior complaints of foot cramps and a stiff neck
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had been resolved. Porter told the nurse that she did not believe she could return
to her old job and that she was applying for disability benefits.
On September 11, 2007, a lower extremity vascular ultrasound by
cardiologist Wajeehuddin Mohammed, M.D. revealed: a mildly abnormal ankle
brachial index, with the right worse than left; abnormal pulse volume recording
seen in bilateral lower extremity on the PVR study; and the presence of mild
peripheral artery insufficiency in the right lower extremity. Claudication was
listed as a symptom. No evidence of a pseudoaneurysm was detected in the right
groin. Dr. Mohammed advised Porter to obtain an “exercise ABI in order to
evaluate for any significant reduction upon exercise.”
On September 25, 2007, Porter saw Dr. Mohammed for an exercise ABI
report. Mohammed reported a “significant postexercise drop bilateral lower
extremity upon exercise . . . [which] indicates most likely inflow disease
bilaterally.” During her examination, Porter told Dr. Mohammed that she was
“currently chest pain free.” Dr. Mohammed’s overall impression of Porter was as
follows:
She had mildly abnormal ABIs at rest, but there was significant and
dramatic postexercise drop in bilateral ABIs. This is consistent with
inflow disease probably at iliac artery level bilaterally. With this in
mind, I want to bring her back for aortogram with runoff with
accessing the left groin because [her] symptoms are worse on the
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right. We are planning to schedule this in the outpatient lab next
available. As usual secondary to risk factor modification aggressive
control of her risk factors recommended.
Porter saw Michael J. Lim, M.D. and Abhay Laddu, M.D. for a routine
follow-up visit on October 3, 2007. Since her last visit with them, she had seen
Dr. Mohammed for claudication symptoms and an abnormal exercise ABI and was
supposed to have undergone an aortogram with peripheral runoff to evaluate for
peripheral arterial disease. However, while she was getting prepared for the
procedure, she was found to be anemic. Therefore, Porter was given an upper
endoscopy and colonoscopy instead. The results of her upper endoscopy revealed
grade I gastritis, so Porter was given an iron supplement and two units of red
blood cells. Porter reported an episodic “flutter-like” burning on the left side of
her chest that occurs approximately two to three times per week, which she said
was different from her prior myocardial infarction/anginal pain. Porter also
continued to complain of claudication symptoms. The doctors made no changes to
Porter’s medications for coronary artery disease, but increased her blood pressure
medication. They also noted that Porter still needed to undergo testing for
peripheral arterial disease. The doctors concluded their examination of Porter
with the following notation:
She continues to follow up in cardiac rehab. Given the complexity of
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her disease, which is complicated by anemia and likely peripheral
arterial disease that is as yet undiagnosed, we will need to arrange for
her to have short-term disability at least for the next three months
until all of this gets worked out. We will plan on seeing her back
here in the clinic after her aortogram.
On October 26, 2007, Porter saw Dr. Mohammed for a renal angiography
and an abdominal aortogram. Mohammed found significant left common iliac and
external iliac angiographic disease by angiography and pressure gradient, along
with right superficial femoral artery disease. Mohammed reported that Porter
“will be returning for elective PTA and stenting of the left common iliac artery and
possible PTS of the right superficial femoral artery.”
Porter was evaluated by Inna Park, M.D., for her disability claim on
November 14, 2007. After examination, Dr. Park diagnosed her with hypertension
and known coronary artery disease with weekly symptoms of chest pain. Porter
had no clubbing, cyanosis, or edema of her extremities, and she was able to get on
and off the examination table without difficulty. Porter was able to walk on her
toes and heels and squat without difficulty and moved with apparent ease. Park
observed no swelling, warmth, or tenderness of Porter’s joints, and found her
range of motion to be within normal limits.
On a follow up visit on January 2, 2008, one of Porter’s cardiologists
confirmed that she still had activity-limiting claudication and decreased pulse and
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recommended that Porter schedule a peripheral intervention test with Dr.
Mohammed.
On January 7, 2008, Porter saw primary care physician George Griffing,
M.D. “for followup of her chronic medical problems and management of her
prescription medication.” Dr. Griffing listed Porter’s chronic conditions as
coronary artery disease post stent July 2007, peripheral vascular disease,
hypertension, anemia, renal insufficiency, and plantar fasciitis. Dr. Griffing stated
that Porter’s heart disease was “stable,” she had no peripheral vascular disease
symptoms, her blood pressure was “excellent,” her lipids were good, and that she
had no problems with her anemia. Dr. Griffing noted that Porter was complaining
of plantar fasciitis symptoms in her right foot since she started walking in
conjunction with her cardiac rehab therapy, but that “otherwise she is in her usual
state of health.” Dr. Griffing’s review of Porter’s systems was “unremarkable.”
Porter’s vital signs were normal, she was alert and oriented, with clear lungs and a
regular heart rhythm. Her abdomen was soft, and she had no clubbing, cyanosis,
or edema in her extremities. Because Dr. Griffing found some tenderness over
Porter’s plantar fascia, he prescribed ibuprofen and referred her to a podiatrist for
plantar fasciitis. Otherwise, Dr. Griffing’s impression was that Porter’s “coronary
artery disease and peripheral vascular disease symptoms” were stable, her blood
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pressure was good, and her lipids were excellent.
On January 15, 2008, Porter saw Dr. Mohammed for a follow-up visit. In a
letter to Dr. Lim, Dr. Mohammed stated that he began treating Porter in October
2007 for “lifestyle limiting claudication of bilateral lower extremities . . . .” He
also noted that the prior tests her performed were consistent with aortoiliac disease
bilaterally. Upon examination, Dr. Mohammed found a diminished pulse in
Porter’s bilateral femoral artery. Dr. Mohammed summarized his overall
impression and plan as follows:
Porter . . . [has] significant history of coronary artery disease in the
past with history of intervention in June 2007 in the context of a nonST segment elevation myocardial infarction. She also is found to
have significant abnormal ABIs especially on exercise and symptoms
of claudication. She has basically Rutherford class III claudication.
At this time, she did have a workup of her anemia and that was found
secondary to gastritis. At this point, I would like to proceed with
aortogram with runoff and possible intervention.
Dr. Mohammed performed the aortogram on January 21, 2008. The results
revealed “no significant inflow disease in the form of the iliac artery stenosis as he
suspected on the ABI. However, she does have infrapopliteal disease in the
posterior tibial arteries bilaterally.” Dr. Mohammed recommended “conservative
management including exercise therapy and better control of hypercholesterolemia
and other risk factor modification . . . .” Intravascular intervention was not

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required.
The record also contains a physical residual functional capacity assessment
from Nancy Dunlap, a medical consultant, on February 8, 2008.1 Ms. Dunlap lists
Porter’s primary diagnosis as coronary artery disease, her secondary diagnosis as
peripheral vascular disease, and her other impairment as high blood pressure. She
found that Porter retained the ability to perform sedentary work and could not
return to her past work as a certified nursing assistant “due to exertional level.”
Dunlap found that “per vocational rule 201.19/20 there are other jobs claimant is
capable of performing. Jobs she can do include . . . government service . . . retail
trade, . . . and recycling . . . .” Dunlap found that Porter could occasionally lift 10
pounds, frequently lift less than 10 pounds, stand and/or walk about two hours in
an eight hour work day, sit about six hours in an eight hour work day, but that she
could only occasionally climb, stoop, kneel, crouch or crawl.2
On March 31, 2008, Porter was seen by Joseph Drago, D.P.M., a podiatrist,
for foot pain. She told Dr. Drago that she had “disabling and intermittent” foot
pain for the past eight months. Porter said the pain worsened when walking or
1

Dunlap made her assessment by reviewing medical records and did not examine Porter.

2

Porter’s records were also reviewed by Robert Cottone, Ph.D., for a psychiatric review
technique given Porter’s allegations of depression on her claim form. Dr. Cottone found no
mental impairments, and Porter does not allege any mental impairments, so I will not discuss his
findings in detail.
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standing. During examination, Dr. Drago observed that Porter’s subtalar joint
bilateral was excessively pronated and that both calcaneus were severely everted.
After x-rays were taken, Dr. Drago diagnosed Porter with abnormal pronation and
plantar fasciitis in both feet and recommended stretching exercises and functional
orthotic devices in combination with her anti-inflammatory medication.
During her cardiology appointment on April 16, 2008, Porter complained of
chest pain and burning during exertion. She made similar complaints to Dr. Lim
and Dr. Laddau again on April 30, 2008. They noted that her chest pain
apparently improved since increasing her dosage of amlodipine and that her stress
test was negative for ischemia. Upon examination, the doctors found a regular
cardiac rate and rhythm with no jugular venous distention or edema in the
extremities. Porter’s doctors laid out the following plan:
[A]t this time given a normal functional study and improved
symptoms on increased dose of amlodipine, we will continue her on
aggressive medical therapy for her coronary artery disease . . . .
Porter began seeing Ganesh Kudva, M.D., a hematologist, on February 12,
2009, for anemia. Porter reported “occasional fatigue but no other symptoms.”
Porter’s examination was otherwise normal. Dr. Kudva ordered blood tests and
treatment with medication. Porter’s blood test revealed hematocrit of 28.2.
Testimony
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A hearing before an ALJ was held on Porter’s disability claim on April 22,
2009. Porter testified and was represented by a non-attorney representative.3
Porter told the ALJ that she was 50 years old and had an eleventh grade education.
She was trying to get her GED so that she could get a different job “like secretarial
work.” She previously worked as a certified nursing assistant, which required her
to lift patients, to stand and walk constantly, and to sit only during lunch breaks.
Porter testified that she stopped working after she had a heart attack in May 2007.
She had stents put in, but they had to replace them in July 2007. She then
developed problems with her feet hurting. An orthopedist gave her some wraps
for her feet to help alleviate the pain. Porter said she experienced fatigue from her
heart attack and anemia. She testified that she now forgets things, such as leaving
the stove on, so her husband or her granddaughter do most of the cooking. Porter
said she cooked about three times in the last month. She said that she is too tired
to clean the floors, do laundry, or climb stairs. Porter goes to the grocery store
with her husband, but cannot go alone. She does not drive. Porter testified that
her cardiologist Dr. Laddau told her not to lift more than ten pounds. She sees her

3

Defendant’s allegation that Porter was represented by counsel in incorrect. Although the
first page of the hearing transcript incorrectly identifies Mr. Edwards as “attorney for claimant,”
the ALJ’s decisions and the administrative record (Tr. 79) both make clear that he is not an
attorney.
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cardiologist about once every six months.
Porter testified that during the day she watches television, reads a book, or
naps. Porter usually takes two naps a day and sleeps from twenty minutes to two
hours at a time. Porter attends church twice a month now instead of every
Thursday and Sunday like she used to before her heart attack. Porter socializes
with family if they come to visit her and talks on the phone. Porter said her legs
hurt when she walks more than half a block and she has problems lifting things
more than five pounds.
The ALJ asked Porter no questions but left the record open for two weeks to
allow her to submit a disability evaluation from her treating physician. However,
no additional information was provided to the ALJ. The record reveals a note on
May 13, 2008 from “Dr. G’s” office,4 which says that Dr. G. informed Porter that
she “needs to be seen by a [physical therapist] or disability physician who has
capability to assess skills with ability . . . Patient informed Dr. G. unable to
complete form . . . .”
Legal Standard
A court’s role on review is to determine whether the Commissioner’s
findings are supported by substantial evidence on the record as a whole. Gowell
4

It appears that “Dr. G.” may be Dr. Griffing.
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v. Apfel, 242 F.3d 793, 796 (8th Cir. 2001). Substantial evidence is less than a
preponderance, but is enough so that a reasonable mind would find it adequate to
support the ALJ’s conclusion. Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir.
2000). As long as there is substantial evidence on the record as a whole to support
the Commissioner’s decision, a court may not reverse it because substantial
evidence exists in the record that would have supported a contrary outcome, id., or
because the court would have decided the case differently. Browning v. Sullivan,
958 F.2d 817, 822 (8th Cir. 1992). In determining whether existing evidence is
substantial, a court considers “evidence that detracts from the Commissioner’s
decision as well as evidence that supports it.” Singh v. Apfel, 222 F.3d 448, 451
(8th Cir. 2000) (quoting Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir.
1999)). Where the Commissioner’s findings represent one of two inconsistent
conclusions that may reasonably be drawn from the evidence, however, those
findings are supported by substantial evidence. Pearsall v. Massanari, 274 F.3d
1211, 1217 (8th Cir. 2001) (internal citation omitted).
To determine whether the decision is supported by substantial evidence, the
Court is required to review the administrative record as a whole and to consider:
(1) the credibility findings made by the Administrative Law Judge;
(2) the education, background, work history, and age of the claimant;
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(3) the medical evidence from treating and consulting physicians;
(4) the plaintiff’s subjective complaints relating to exertional and
non-exertional impairments;
(5) any corroboration by third parties of the plaintiff’s impairments;
and
(6) the testimony of vocational experts, when required, which is based
upon a proper hypothetical question.
Brand v. Secretary of Dep’t of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th
Cir. 1980).
Disability is defined in social security regulations 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 which
has lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. § 416(i)(1); 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. §
404.1505(a); 20 C.F.R. § 416.905(a). In determining whether a claimant is
disabled, the Commissioner must evaluate the claim using a five step procedure.
First, the Commissioner must decide if the claimant is engaging in
substantial gainful activity. If the claimant is engaging in substantial gainful
activity, he is not disabled.
Next, the Commissioner determines if the claimant has a severe impairment

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which significantly limits the claimant’s physical or mental ability to do basic
work activities. If the claimant’s impairment is not severe, he is not disabled.
If the claimant has a severe impairment, the Commissioner evaluates
whether the impairment meets or exceeds a listed impairment found in 20 C.F.R.
Part 404, Subpart P, Appendix 1. If the impairment satisfies a listing in Appendix
1, the Commissioner will find the claimant disabled.
If the Commissioner cannot make a decision based on the claimant’s current
work activity or on medical facts alone, and the claimant has a severe impairment,
the Commissioner reviews whether the claimant can perform his past relevant
work. If the claimant can perform his past relevant work, he is not disabled.
If the claimant cannot perform his past relevant work, the Commissioner
must evaluate whether the claimant can perform other work in the national
economy. If not, the Commissioner declares the claimant disabled. 20 C.F.R. §
404.1520; 20 C.F.R. § 416.920.
When evaluating evidence of pain or other subjective complaints, the ALJ is
never free to ignore the subjective testimony of the plaintiff, even if it is
uncorroborated by objective medical evidence. Basinger v. Heckler, 725 F.2d
1166, 1169 (8th Cir. 1984). The ALJ may, however, disbelieve a claimant’s
subjective complaints when they are inconsistent with the record as a whole. See
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e.g., Battles v. Sullivan, 902 F.2d 657, 660 (8th Cir. 1990). In considering the
subjective complaints, the ALJ is required to consider the factors set out by
Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984), which include:
the claimant’s prior work record, and observations by third
parties and treating and examining physicians relating to such
matters as: (1) the claimant’s daily activities; (2) the duration,
frequency and intensity of the pain; (3) precipitating and
aggravating factors; (4) dosage, effectiveness and side effects
of medication; [and] (5) functional restrictions.
Id. at 1322. When an ALJ explicitly finds that the claimant’s testimony is not
credible and gives good reasons for the findings, the court will usually defer to the
ALJ’s finding. Casey v. Astrue 503 F.3d 687, 696 (8th Cir. 2007). The ALJ
retains the responsibility of developing a full and fair record in the non-adversarial
administrative proceeding. Hildebrand v. Barnhart, 302 F.3d 836, 838 (8th Cir.
2002).
The ALJ’s Findings
The ALJ denied Porter’s claim for benefits in a written decision dated July
27, 2009. The ALJ found that Porter suffered from severe impairments of coronary
artery disease, hypertension, bilateral lower extremity infrapopliteal disease, and
anemia, but that these impairments or combination of impairments did not meet or
medically equal one of the listed impairments. The ALJ then concluded that

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Porter had the residual functional capacity to perform a full range of light work,
which is defined as lifting or carrying no more than 20 pounds occasionally and 10
pounds frequently and standing or walking no more than six hours in an eight hour
workday. In reaching this conclusion, the ALJ found that Porter’s impairments
imposed disabling symptoms and limitations from July 17, 2007 through January
6, 2008, but that the evidence supported a finding that Porter was able to engage in
light work starting January 7, 2008.
He concluded that Porter’s statements concerning the intensity, persistence,
and limiting effects of her symptoms were not entirely credible. The ALJ found
that “the claimant is able to essentially live and function independently, perform
light household chores, go grocery shopping, and drive an automobile.” In
addition, the ALJ stated that “[s]ince January 7, 2008, no physician, treating or
otherwise, has ever placed any specific long term work-related restrictions upon
the claimant’s activities more restrictive than found in this hearing decision or
expressed an opinion that the claimant is disabled.” He concluded that, “[t]o the
extent the claimant’s daily activities are restricted, they appear restricted mainly as
a matter of choice, rather than any apparent medical prescription.”
The ALJ determined that Porter required only “minimal or conservative
treatment since January 7, 2008,” which he found inconsistent with allegations of
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a disabling impairment. “There is no evidence of record that the claimant’s
prescribed medication is not generally effective when taken as prescribed or that it
imposes significant adverse side effects.” The ALJ also found that “[t]here is no
evidence that the claimant requires the use of prescribed orthotic or assistive
devices.”
In reviewing Porter’s medical history, the ALJ decided that Porter’s
hypertension and anemia were treated and controlled with medication, and that
Porter’s cardiac examinations and diagnostic testing since January 7, 2008 were
“essentially unremarkable.” As for Porter’s bilateral lower extremity
infrapopliteal disease, the ALJ similarly concluded that it was “treated and
controlled with conservative therapy.” Because Porter is 5’4” tall with a weight
between 220 and 225 pounds, the ALJ found that she had a “medically
determinable and diagnosed obesity.” However, the ALJ found no substantial
limitations with mobility or stamina resulting from Porter’s obesity, nor did he
believe that it “significantly exacerbate[d]” her other medical conditions. Porter
had a normal gait and was able to ambulate independently with a normal range of
motion. The ALJ also observed that Porter was in no obvious physical discomfort
during the hearing, and she presented no corroborating witness testimony to
support her allegations of disability.
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The ALJ gave “great weight” to the opinion of Dr. Laddau, Porter’s treating
cardiologist, who indicated that she was disabled for a three-month period from
October to December 2007. He found that Dr. Laddau’s opinions were supported
by the clinical signs, symptoms, and findings in the record, as well as by Dr.
Griffing’s January 7, 2008 examination. The ALJ afforded no weight to the
opinion of Nancy Dunlap, who decided that Porter was limited to sedentary work,
because it was not considered to be a medical source opinion under the
regulations. Therefore, the ALJ found that “the objective medical evidence of
record supports a finding that since January 7, 2008, the claimant has impairments
that impose symptoms and limitations that physically preclude the claimant from
performing more than light work activity.”
The ALJ concluded that Porter was unable to perform her past relevant
work. However, he found that the transferability of Porter’s job skills was not
material to his determination of disability because the Medical-Vocational
Guidelines (Guidelines) mandated a finding of “not disabled.” In this case, the
ALJ applied the Guidelines because he found that she could perform all the
exertional demands of light work and had no non-exertional impairments.
Therefore, the ALJ held that Porter was not disabled under Medical-Vocational
Rule 202.11, 20 C.F.R. Part 404, Subpart P, Appendix 2, Table No. 2, “based on a
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residual functional capacity for the full range of light work, considering the
claimant’s age, education, and work experience . . . .” This appeal followed.
Discussion
Porter first argues that the ALJ erred in applying the Guidelines because she
suffers from the non-exertional impairments of hypertension, obesity, pain,
fatigue, coronary artery disease, bilateral lower extremity infrapopliteal disease,
and anemia. Nonexertional limitations are “those that affect a claimant’s ability to
meet the demands of jobs other than the strength demands, that is, demands other
than sitting, standing, walking, lifting, carrying, pushing, or pulling.” Burnside v.
Apfel, 223 F.3d 840, 844 (8th Cir. 2000) (internal quotation marks and citations
omitted). Hypertension, obesity, pain, and atherosclerotic heart disease are
significant nonexertional impairments. Evans v. Chater, 84 F.3d 1054, 1056 (8th
Cir. 1996). Where a claimant has a nonexertional impairment, the ALJ may not
exclusively rely on the vocational guidelines to determine disability but must also
consider the testimony of a vocational expert. Haley v. Massanari, 258 F.3d 742,
747-48 (8th Cir. 2001). However, the ALJ may rely exclusively on the guidelines
even though there are nonexertional impairments “if the ALJ finds, and the record
supports the finding, that the nonexertional impairments do not significantly
diminish the claimant’s RFC to perform the full range of activities listed in the
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guidelines.” Draper v. Barnhart, 425 F.3d 1127, 1132 (8th Cir. 2005) (quoting
Reed v. Sullivan, 988 F.2d 812, 816 (8th Cir. 1993)). “In this context, significant
refers to whether the claimant’s nonexertional impairment or impairments
preclude the claimant from engaging in the full range of activities listed in the
Guidelines . . . [I]solated occurrences will not preclude the use of the Guidelines,
however persistent nonexertional impairments which prevent the claimant from
engaging in the full range of activities listed in the Guidelines will preclude the
use of the Guidelines to direct a conclusion of disabled or not disabled.” Lucy v.
Chater, 113 F.3d 905, 908 (8th Cir. 1997) (internal quotation marks and citation
omitted).
Here, the ALJ determined that Porter’s “allegation that her impairments,
either singly or in combination, produce symptoms and limitations of a severity to
prevent all sustained work activity since January 7, 2008 [was] not credible.” In
doing so, the ALJ considered Porter’s obesity but found that it did not impose
substantial limitations. He also found no evidence of severe, chronic pain, and
observed that Porter “did not appear to be in any obvious credible physical
discomfort during the course of the scheduled hearing.” The ALJ noted that
Porter’s cardiac examinations were “essentially unremarkable” since January 7,
2008, and that her hypertension and anemia were treated and controlled with
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medication. However, the ALJ did not consider Porter’s persistent fatigue from
her cardiac problems and anemia as a nonexertional impairment. See Levally v.
Massanari, 11 Fed. Appx. 695, 697 (8th Cir. 2001) (“[F]atigue . . . can cause
nonexertional limitations”). Porter listed fatigue as a limitation on her function
reports and testified about it during her hearing. She told the ALJ that she forgets
things now and is too tired to clean the floors, do laundry, climb stairs, or grocery
shop without help. She also testified that she takes two naps a day, for sometimes
as long as two hours at a time. In her disability report, Porter stated that she gets
tired when performing basic personal hygiene tasks, such as styling her hair or
getting out of the bathtub, and that she has to take frequent breaks. Porter’s
complaints are corroborated by her reports to Dr. Kudva, her hematologist, and her
blood work, which shows low hematocrit5 levels even as late as 2009 and while on
medication. See Porter v. Apfel, 218 F.3d 844, 848 (8th Cir. 2000) (low
hematocrit lab values support claimant’s assertion of fatigue and pain from
anemia). Porter also complained of memory loss, which is a nonexertional
limitation that reduces a person’s ability to work. 20 C.F.R. § 404.1569a(c)(1).
Despite this evidence in the record, the ALJ does not even address these

5

“Hematocrit level is the volume of red blood cells in a given volume of blood.”
Fresenius Medical Care v. United States, 526 F.3d 372, 375 n.2 (8th Cir. 2008) (internal citation
omitted).
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significant nonexertional limitations in his analysis.
Because of Porter’s nonexertional limitations, the ALJ erred by determining
that Porter could engage in the full range of light work without consulting the
testimony of a vocational expert. The ALJ’s findings concerning Porter’s residual
functional capacity are not supported by substantial evidence because they do not
consider the impact of all Porter’s nonexertional impairments. “[T]o find a
claimant has the residual functional capacity to perform a certain type of work, the
claimant must have the ability to perform the requisite acts day in and day out, in
the sometimes competitive and stressful conditions in which real people work in
the real world . . . The ability to do light housework with assistance, attend church,
or visit with friends on the phone does not qualify as the ability to do substantial
gainful activity.” Draper, 425 F.3d at 1131 (quoting Thomas v. Sullivan, 876 F.2d
666, 669 (8th Cir. 1989)). Here, the ALJ’s decision is not supported by substantial
evidence on the whole record because the ALJ improperly applied the guidelines
to direct a conclusion that Porter was not disabled without consulting a vocational
expert in light of her significant nonexertional impairments. Remand is therefore
required. See Beckley v. Apfel, 152 F.3d 1056, 1060 (8th Cir. 1998) (ALJ erred
by failing to obtain vocational expert testimony as to effects of nonexertional
impairments on claimant’s residual functional capacity even though nonexertional
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impairments may not be severe enough to be disabling); Cline v. Sullivan, 939
F.2d 560, 569 (8th Cir. 1991) (“When the Secretary erroneously concludes that a
claimant’s allegations of pain are not credible and denies benefits based upon the
medical-vocational guidelines, remand for further proceedings to more fully
develop the record or for procuring expert vocational testimony is generally
appropriate.”).
On remand the ALJ should consider all of the relevant evidence in making a
determination of the severity of Porter’s impairments and her residual functional
capacity, including an evaluation of any additional evidence, testing or
consultative examinations that may be required. Additional evidence may be
particularly helpful here because Porter was not represented by an attorney during
the administrative process, Porter’s non-attorney advocate failed to provide the
ALJ with the promised disability evaluation from her treating physician, and
Porter’s treating physician indicated that he was unable to complete the disability
form because he lacked the capability to assess skills with ability. Now that Porter
is represented by counsel, presumably counsel can work with the ALJ to provide
the requested evaluation and whatever additional information is necessary for
Porter’s disability determination. A physician’s opinion could assist the ALJ in
his determination of residual functional capacity here, where the only physical
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residual functional capacity assessment was performed by a non-medical, nonexamining consultant whose opinion differed from that of the ALJ’s. As always,
the ALJ retains the responsibility of developing a full and fair record in the nonadversarial administrative proceeding. Hildebrand, 302 F.3d at 838
Conclusion
Because substantial evidence in the record as a whole does not support the
ALJ’s decision, this matter is remanded to the Commissioner for a consideration
of Porter’s claim in light of all medical records on file and development of any
additional facts as needed. The Commissioner should reevaluate Porter’s
impairments and order additional testing or consultative examinations, if
necessary, assess a residual functional capacity consistent with the medical
evidence, and obtain vocational expert testimony to determine whether Porter is
capable of performing work in the national economy with her limitations.
Therefore, I reverse and remand pursuant to sentence four of 42 U.S.C. § 405(g)
for further proceedings consistent with this order. See Buckner v. Apfel, 213 F.3d
1006, 1010 (8th Cir. 2000) (finding that remand under sentence four of 42 U.S.C.
section 405(g) is proper when the apparent purpose of the remand was to prompt
additional fact-finding and further evaluation of existing facts).
Accordingly,
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IT IS HEREBY ORDERED that the decision of the Commissioner is
reversed and the case is remanded to the Commissioner pursuant to sentence four
of 42 U.S.C. § 405(g) for further proceedings consistent with this Memorandum
and Order.
A separate Judgment in accord with this Memorandum and Order is entered
this date.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 11th day of September, 2012.

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