Bordeaux v. Social Security Administration

Filing 21

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED and this cause is REMANDED to the Commissioner for further proceedings. Judgment shall be entered accordingly. Signed by Magistrate Judge Frederick R. Buckles on 11/14/2012. (KSM)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
MELODY BORDEAUX,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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No.

4:11CV876 FRB

MEMORANDUM AND ORDER
This cause is before the Court on plaintiff’s appeal of
an adverse ruling of the Social Security Administration.

All

matters are pending before the undersigned United States Magistrate
Judge, with consent of the parties, pursuant to 28 U.S.C. § 636(c).
I.

Procedural History

On February 7, 2008, plaintiff Melody Bordeaux filed an
application for Disability Insurance Benefits pursuant to Title II
of the Social Security Act, 42 U.S.C. §§ 401, et seq., and an
application for Supplemental Security Income pursuant to Title XVI
of the Act, 42 U.S.C. §§ 1381, et seq., in which she alleged that
she became disabled on July 1, 2006.

(Tr. 136-38, 139-41.)

Plaintiff subsequently amended her onset date to December 13, 2007.
(Tr. 31, 158.)

On initial consideration, the Social Security

Administration denied plaintiff's claims for benefits.
77.)

(Tr. 73-

On October 20, 2009, upon plaintiff’s request, a hearing was

held before an Administrative Law Judge (ALJ).

(Tr. 27-66.)

Plaintiff testified and was represented by counsel.
expert also testified at the hearing.

A vocational

On November 9, 2009, the ALJ

issued a decision denying plaintiff's claims for benefits.
12-22.)

(Tr.

On April 11, 2011, upon consideration of additional

evidence, the Appeals Council denied plaintiff's request for review
of the ALJ's decision.

(Tr. 1-4.)

The ALJ's determination thus

stands as the final decision of the Commissioner.

42 U.S.C. §

405(g).
II.
A.

Evidence Before the ALJ

Plaintiff’s Testimony
At the hearing on October 20, 2009, plaintiff testified

in response to questions posed by the ALJ and counsel.
At the time of the hearing, plaintiff was fifty-four
years of age.

Plaintiff stands five feet, two inches tall and

weighs 225 pounds.

(Tr. 33-34.)

Plaintiff is single and lives in

a house with her adult son and ninety-two-year-old mother.
32-33.)

Plaintiff attended college for two years.

(Tr.

(Tr. 33-34.)

Plaintiff can read and write and can perform simple arithmetic.
(Tr. 34-35.)

Plaintiff receives food stamps.

(Tr. 36.)

Plaintiff’s Work History Report shows plaintiff to have
worked for MasterCard as a member services representative from June
1986 to January 1996.

Plaintiff worked as an activity leader for

an apartment complex from January 1996 to November 1996.

From

November 1996 to April 1997, and again from November 1999 to June
2004, plaintiff worked as a recruiter for jobs programs.
-2-

From

September 2007 to December 2007, plaintiff worked as a church
secretary.

(Tr. 191.)

Plaintiff testified that she left this job

because a new priest to the parish brought his own staff, and there
was no position remaining for her.

(Tr. 37.)

Plaintiff testified that her ability to work is affected
by numbness and burning sensations on the entire left side of her
body.

Plaintiff testified that the sensation begins at her waist

and travels down to her toes.

Plaintiff testified that she

experiences discomfort in her leg when she sits, and that she has
fallen in the past upon standing after her leg has become numb.
(Tr. 45, 48.)

Plaintiff testified that a chiropractor advised her

that she had a degenerative disc.

Plaintiff testified that a CT

scan showed mild arthritic changes in the back and that an MRI
showed a mid-line bulge.

Plaintiff testified that she has not seen

an

has

orthopedic

doctor,

not

had

participated in physical therapy.

back

surgery,

nor

has

Plaintiff testified that she

takes Flexeril for muscle spasms and Ultram for pain. (Tr. 46-48.)
Plaintiff

testified

that

she

experiences

dressing and that the pain is becoming worse.

pain

with

Plaintiff testified

that she has difficulty with extension and reaching in that she
sometimes drops things with her left hand and loses balance if she
has to reach with her right hand.

Plaintiff testified that she is

no longer centered with her balance and thinks that it may be due
to weakness.

Plaintiff testified that she began experiencing such

weakness about one year prior.

Plaintiff testified that her left
-3-

arm and hand go to sleep and tingle and that no particular activity
or position brings on the sensation.

Plaintiff testified that she

must use an irregular motion with her left arm in order to
comfortably engage in activities.

(Tr. 54-56.)

Plaintiff testified that she also has a cardiac condition
whereby

her

fatigued.

heart

races

at

times

and

she

becomes

extremely

Plaintiff testified that she experiences dizziness with

these episodes and that such dizziness is accompanied by nausea and
blurred vision.

Plaintiff testified that such episodes last up to

three days and that she lies down and tries to stay comfortable
during such time.

Plaintiff testified that she lies down ten to

twelve hours a day in addition to the time she sleeps.

Plaintiff

testified that she feels “peppy” for only one or two days during
the course of a week.

(Tr. 56-59.)

Plaintiff testified that she takes medication for heart
arrhythmia.

Plaintiff testified that her medications also include

Celebrex and Lipitor and that she sometimes experiences dizziness
and fatigue as side effects.

(Tr. 48-49.)

Plaintiff testified that she used to walk for thirty
minutes, four days a week but that she can now walk only fifteen to
twenty minutes. Plaintiff testified that she can stand for five to
ten minutes before she must change positions.
that she can sit for ten minutes.
lift seven to ten pounds.

Plaintiff testified

Plaintiff testified that she can

(Tr. 52-53.)

As to her daily activities, plaintiff testified that she
-4-

has a driver’s license and drives but does not trust her ability
because of blurred vision which causes her to misjudge distance.
(Tr. 59.)

Plaintiff testified that she is able to cook, but does

not do so often.

(Tr. 49.)

Plaintiff testified that her son

performs housework such as doing dishes and laundry, and also does
the yard work.

Plaintiff testified that she is able to go grocery

shopping but seldom does so. Plaintiff testified that she does not
carry the groceries when she gets home but rather leaves them in
the car.

Plaintiff testified that a home health care provider

cares for her elderly mother five hours a day, five days a week and
has done so for nearly four years.

Plaintiff testified that she

cared for her mother herself before that time.
B.

(Tr. 50-52.)

Testimony of Vocational Expert
Delores Gonzales, a vocational expert, testified at the

hearing in response to questions posed by the ALJ.
Ms. Gonzales classified plaintiff's past relevant work as
an

activity

semi-skilled;

leader,
as

an

trainer

and

job

coach

enumerator

as

light

and

as

light

unskilled;

and
as

a

customer service representative, secretary and receptionist as
sedentary and semi-skilled; and as a recruiter as sedentary and
skilled.

(Tr. 62.)
The

individual

of

ALJ

asked

plaintiff's

the

vocational

age,

expert

education,

to

training,

assume
and

an

work

experience, and to further assume that "the individual can perform
light work with the following exceptions.
-5-

She can climb stairs and

ramps occasionally, never climb ropes, ladders and scaffolds.

Can

balance, stoop, kneel and crouch occasionally."

Ms.

Gonzales

testified

that

plaintiff's past work.

such

a

person

could

(Tr. 63.)
perform

all

of

(Tr. 63.)

The ALJ then asked Ms. Gonzales to assume the same
individual, but that the person could only frequently reach in all
directions.

Ms. Gonzales testified that such a person could

perform all of plaintiff's past work.

(Tr. 63-64.)

The ALJ then asked Ms. Gonzales to assume the same
individual as described in the second hypothetical, but that the
person
would be limited to walking to only 20 minutes
at a time, standing 10 minutes at a time,
sitting 10 minutes at a time, lifting no more
than 10 pounds, and this individual would also
have up to three days a month that she would
not be able to work because of dizziness,
blurred vision, she would just not be able to
work so up to three absences per month. [sic]
(Tr. 64.)
Ms. Gonzales testified that such a person could not perform any of
plaintiff's

past

relevant

work

and

performing any competitive employment.

-6-

would

be

(Tr. 64.)

precluded

from

III.

Medical Records1

Between February 9, 2001, and March 28, 2001, plaintiff
visited Esquire Sports Medicine & Rehabilitation (Esquire Rehab) on
sixteen occasions for treatment relating to pain sustained as a
result of a motor vehicle accident.

Plaintiff complained of

headaches and pain in her upper back, low back, neck, left hip, and
left leg with decreased range of motion. Plaintiff also complained
of tingling in her left arm and left leg.

Plaintiff’s condition

improved throughout the course of treatment and, by March 21, 2001,
plaintiff was instructed to engage in normal activity with no

1

In its Notice of Action, the Appeals Council informed
plaintiff that, in making its determination to deny review of the
ALJ’s decision, it had considered additional evidence which was not
before the ALJ.
(Tr. 1-4.)
The Court must consider this
additional evidence in determining whether the ALJ's decision was
supported by substantial evidence. Frankl v. Shalala, 47 F.3d 935,
939 (8th Cir. 1995); Richmond v. Shalala, 23 F.3d 1441, 1444 (8th
Cir. 1994).
Here, the Appeals Council specifically informed
plaintiff that it considered evidence designated as Exhibits 14F
and 15F in the administrative file and described such exhibits as
containing records from Esquire Sports Medicine dated July 20
through October 9, 2009; and from Advanced Pain Control dated July
21, 2010, through January 25, 2011. (See Tr. 4.) A review of the
administrative file shows, however, that Exhibit 15F also contains
medical records from People’s Health Centers dated January 6, 2010.
(See Tr. 648-52.) Inasmuch as the Appeals Council stated that it
considered the evidence contained in Exhibit 15F, and records from
People’s Health Centers are contained in such exhibit, it is
reasonable to conclude that the Appeals Council considered the
records from People’s Health Centers despite its failure to
specifically identify them as additional evidence. For the sake of
continuity in this memorandum, the Court incorporates discussion of
these records, as well as of the additional records from Esquire
Sports Medicine and Advanced Pain Control, with that relating to
the evidence which was before the ALJ at the time of his decision.
-7-

restrictions.

(Tr. 404-07.)2

Plaintiff returned to Esquire Rehab in April and May 2001
with complaints of stiffness about the neck and upper back as well
as

intermittent

soreness

about

the

plaintiff’s tenderness and spasms.

hip.

Treatment

improved

In December 2001, plaintiff

received treatment for pain about the left hip and low back, and
improvement was noted.

(Tr. 408-09.)

From January 2002 through March 2004, plaintiff visited
Esquire Rehab on seventy-two separate occasions for treatment
relating to complaints of low back pain, hip pain, intermittent leg
pain, and achiness in the right forearm.

It was repeatedly noted

throughout this period that plaintiff was working long hours.
Tenderness, muscle spasm, and decreased range of motion were noted
throughout this period, but it was also noted that plaintiff’s
conditions improved with treatment.

(Tr. 409-23.)

On April 23, 2004, plaintiff visited Esquire Rehab and
complained of soreness and stiffness about the low back with
achiness in the right hip.
restricted.

Strength and deep tendon reflexes were noted to be

within normal limits.
spine.

Range of motion was noted to be

Spasms were noted about the lumbosacral

Plaintiff was instructed to continue with her home care

exercises.

(Tr. 424.)

2

The record is unclear as to whether the treatment provided by
Esquire Rehab was in the form of chiropractic treatment or physical
therapy. For ease of reference, the Court will refer generally to
plaintiff’s treatment at Esquire Rehab as “treatment.”
-8-

On May 27, 2004, plaintiff visited Chapel Chiropractic
Orthopedics and complained of having had pain in her back and left
leg for over a year.
include Celebrex.3

Plaintiff reported her current medications to
Upon examination, plaintiff was diagnosed with

lumbar disc irritation and sacroiliac joint strain.

(Tr. 260-64.)

Plaintiff returned to Chapel Chiropractic on June 4,
2004,

and

underwent

complained
a

of

an

manipulation

exacerbation

at

the

of

lumbosacral

pain.

Plaintiff

level.

It

was

recommended that plaintiff undergo two additional sessions the
following

week.

Plaintiff's

Chiropractic

occurred

on

manipulation.

last

June

reported

21,

visit

2004,

for

to

Chapel

additional

(Tr. 265-66.)

On September 11, 2004, plaintiff returned to Esquire
Rehab and complained of soreness and stiffness about the low back
but reported that she was doing pretty well.

Active range of

motion was within normal limits with mild discomfort.

Passive

range of motion showed some restriction about the thoracic-sacral
spine.

Plaintiff was instructed to return as needed.

(Tr. 424.)

Plaintiff visited Dr. Carmel Boykin-Wright at Euclid
Primary

Care

discomfort.

on

December

Plaintiff

1,

2004,

reported

3

with

having

complaints
recent

of

stress

chest
in

her

Celebrex is used to relieve pain, tenderness, swelling, and
stiffness caused by osteoarthritis, rheumatoid arthritis, and
ankylosing spondylitis. Medline Plus (last revised Aug. 15, 2012)
<http://www.nlm.nih.gov/medlineplus/druginfo/meds/a699022.html>.
-9-

personal life.

Plaintiff was prescribed Verapamil.4

(Tr. 440.)

Dr. Boykin-Wright called in a refill prescription of
Verapamil on March 4, 2005.

On March 17, 2005, plaintiff failed to

appear for a scheduled appointment with Dr. Boykin-Wright.

(Tr.

440.)
Plaintiff returned to Esquire Rehab on May 15, 2005, and
reported having “pulled” her low back on the left side while
bending over to move a rug.
and spasms were noted.

Tenderness, decreased range of motion,

Plaintiff was instructed to apply ice and

heat to the affected area and was encouraged to walk.

(Tr. 425.)

Dr. Boykin-Wright prescribed Celebrex for plaintiff on
September 8, 2005.

(Tr. 523.)

Plaintiff was admitted to the emergency room at St.
Mary’s Health Center on September 30, 2005, with complaints of
swelling, redness, and pain in the right arm and in the area of the
right lateral neck.

Plaintiff’s past medical history was noted to

include atrial fibrillation and arthritis of the left hip. (Tr.
520.)

An x-ray of plaintiff’s right forearm was unremarkable.

(Tr. 452.)

Plaintiff was diagnosed with right forearm tendinitis

and was given Vicodin.5

Plaintiff was discharged that same date in

4

Verapamil (Calan) is used to treat high blood pressure,
control chest pain, and prevent and treat irregular heartbeats.
Medline Plus (last reviewed Aug. 1, 2010)<http://www.nlm.nih.gov/
medlineplus/druginfo/meds/a684030.html>.
5

Vicodin is used to relieve moderate to severe pain. Medline
Plus
(last
revised
July
18,
2011)<http://www.nlm.nih.gov/
medlineplus/druginfo/meds/a601006.html>.
- 10 -

stable condition.

(Tr. 520.)

From August 2005 through January 2006, plaintiff visited
Esquire Rehab on ten occasions with complaints relating to soreness
and stiffness about the low back and neck.

Decreased range of

motion was noted throughout this period, as well as tenderness and
paraspinal muscle spasms.

Plaintiff tolerated the treatment well

and was instructed to continue with home exercises and water
therapy.

(Tr. 425-27.)
On January 9, 2006, Dr. Boykin-Wright prescribed Celebrex

for plaintiff.

(Tr. 513.)

On February 8, 2006, plaintiff failed

to appear for a scheduled appointment with Dr. Boykin-Wright. (Tr.
439.)
Plaintiff visited Dr. Jean Thomas, a gynecologist, on
February

27,

Plaintiff's

2006,

history

and
of

complained

lumbar

of

problems

severe
was

pelvic

noted.

ultrasound was ordered and Darvocet6 was prescribed.

A

pain.
pelvic

(Tr. 274.)

Plaintiff visited Dr. Thomas on March 13, 2006, and
continued to complain of severe pelvic pain.
plaintiff to have low pain tolerance.

Dr. Thomas noted

(Tr. 270.)

A cardio-pulmonary function test dated April 4, 2006,
showed normal sinus rhythm but left atrial abnormality.
448.)

A chest x-ray taken that same date was negative.

(Tr. 329,
(Tr. 449.)

From March 2006 through June 2006, plaintiff visited
6

Darvocet is used to relieve mild to moderate pain. Medline
Plus
(last
revised
Mar.
16,
2011)<http://www.nlm.nih.gov/
medlineplus/druginfo/meds/a601008.html>.
- 11 -

Esquire Rehab on seven occasions relating to her complaints of mid
to low back pain.
noted

throughout

Tenderness and restricted range of motion were
this

period,

but

plaintiff

improvement and good mobility with treatment.

demonstrated

(Tr. 427-28.)

On May 5, 2006, Dr. Boykin-Wright prescribed Celebrex for
plaintiff.

(Tr. 499.)

Dr. Boykin-Wright prescribed Verapamil for

plaintiff on May 30 and June 12, 2006.

(Tr. 500, 439.)

On July

20, 2006, plaintiff failed to appear for a scheduled appointment
with Dr. Boykin-Wright.

(Tr. 439.)

On August 25, 2006, plaintiff complained to Dr. Thomas of
having pain in the left lower quadrant and that the pelvic area was
very painful.

Darvocet was prescribed.

(Tr. 271.)

On September

19, 2006, plaintiff underwent a hysterectomy in response to her
complaints of severe abdominal pain, severe pelvic pain, and severe
back pain.

It was noted that plaintiff had been taking Darvocet

and ibuprofen. Plaintiff was discharged on September 20, 2006, and
was prescribed Percocet7 and Motrin upon discharge.
Plaintiff

visited

prescription
prescribed.

for

Dr.

Thomas

Darvocet

on

was

September

refilled.

28,

(Tr. 304-28.)
2006,

Ibuprofen

and
was

her
also

(Tr. 272.)

On October 18, 2006, plaintiff visited Dr. Boykin-Wright
for follow up of supraventricular tachycardia, hyperlipidemia, and
allergic rhinitis.

Plaintiff reported feeling fine.

7

Plaintiff

Percocet is used to relieve moderate to severe pain. Medline
Plus
(last
revised
Oct.
15,
2011)<http://www.nlm.nih.gov/
medlineplus/druginfo/meds/a682132.html>.
- 12 -

reported that she continued to provide care for her chronically ill
and disabled mother.

Plaintiff complained of fleeting left-sided

sharp chest and neck pain, usually resolving spontaneously after a
few seconds.
pounds.

Dr. Boykin-Wright noted plaintiff to weigh 206

Physical examination was unremarkable.

Dr. Boykin-Wright

diagnosed plaintiff with supraventricular tachycardia, controlled,
and instructed plaintiff to continue with Verapamil.
testing was ordered.

Laboratory

Plaintiff was also instructed to continue

with her medication for hyperlipidemia.

(Tr. 442.)

Plaintiff returned to Esquire Rehab on January 20, 2007,
and complained of mid to low back pain.
she felt improvement overall.

Plaintiff reported that

Mild lumbar discomfort was noted.

Tenderness was noted about the sacroiliac on the left.

Plaintiff

had decreased range of motion, but it was noted to have improved.
Plaintiff tolerated the treatment well and was instructed to return
as needed.

(Tr. 428.)
On January 21, 2007, plaintiff visited Dr. Boykin-Wright

with complaints of left hip pain.

(Tr. 439.)

Plaintiff visited Esquire Rehab on two occasions in March
2007 and complained of mid to low back pain with stiffness.
Plaintiff also complained of aching in the left hip.
was noted about the left sacroiliac.

Tenderness

It was noted that plaintiff

began her exercise program again and demonstrated good mobility.
Plaintiff tolerated the treatment sessions well and was instructed
to return as needed.

(Tr. 428-29.)
- 13 -

Plaintiff returned to Esquire Rehab on May 25, 2007, with
complaints of soreness and stiffness about the low back.
tenderness was noted.

Moderate

Plaintiff tolerated the treatment well and

was instructed to continue treatment as needed.

(Tr. 429.)

On July 27, 2007, Dr. Boykin-Wright prescribed Verapamil
for plaintiff.

(Tr. 439.)

Plaintiff visited Dr. Boykin-Wright on July 30, 2007, for
follow up of supraventricular tachycardia, allergic rhinitis, and
hyperlipidemia.

Plaintiff reported feeling relatively well except

for an occasional episode of low back pain.

Plaintiff reported

that she recently fell “causing a brief injury to her back.”
Plaintiff also reported that she occasionally experienced back pain
“after repeatedly lifting in assisting her mother throughout the
day.”
lower

Plaintiff reported having no numbness or tingling in her
extremities.

headaches,

chest

Plaintiff

pain,

or

reported

lower

having

extremity

no

edema.

dizziness,
Plaintiff

reported that she had been unable to exercise regularly because of
the amount of time it took for her to care for her disabled mother.
Dr. Boykin-Wright noted plaintiff to weigh 226 pounds.
examination

was

unremarkable.

Dr.

Boykin-Wright

Physical
diagnosed

plaintiff with supraventricular tachycardia, stable, and instructed
plaintiff to continue with Verapamil.

Dr. Boykin-Wright also

instructed plaintiff to continue with her other medications for
hyperlipidemia and allergic rhinitis.

(Tr. 441.)

Plaintiff visited Dr. Boykin-Wright on November 5, 2007,
- 14 -

for administration of an influenza vaccine.
noted.

No complaints were

(Tr. 439.)
Plaintiff’s

prescription

November 14 and 27, 2007.

for

Calan

was

refilled

on

(Tr. 463, 464.)

On January 12, 2008, plaintiff visited Esquire Rehab with
complaints of low back pain radiating to the left leg and foot and
into the toes.

Plaintiff reported that she had trouble sitting on

account of the pain.

Plaintiff was noted to have decreased active

range of motion with +1/4 deep tendon reflexes.
weakness

was noted.

No atrophy or

Plaintiff tolerated the treatment well.

Plaintiff was instructed to walk, apply ice to the affected area,
and to follow up with a specialist.

(Tr. 429.)

On April 17, 2008, plaintiff underwent a consultative
psychological

evaluation

for

disability

determinations.

Plaintiff’s chief complaints were noted to include pain in the
back, legs, and buttocks; dizziness; and muscle spasms.

Plaintiff

also complained of problems with the left side of her body “going
to

sleep”

and

that

she

was

not

sleeping

well

due

to

pain.

Plaintiff reported feeling depressed due to her problems with pain.
Plaintiff

reported

her

current

medications

to

include

Calan,

aspirin, Celebrex, ibuprofen, and a muscle relaxant but that she
was not being treated for any medical condition.
of

the

evaluation,

plaintiff

was

diagnosed

Upon conclusion
with

disorder, not otherwise specified, and was assigned

- 15 -

depressive
a Global

Assessment of Functioning (GAF) score of 70.8

(Tr. 545-49.)

On April 17, 2008, plaintiff underwent a consultative
physical examination for disability determinations.
chief complaint was noted to be low back pain.

Plaintiff’s

Plaintiff reported

that her left leg began to feel “funny” in November 2007 and gave
way which caused her to fall into a wall.
treatment

with

muscle

relaxants,

ice,

Plaintiff reported that
and

anti-inflammatory

medication helped but that she began to experience left foot
numbness and a sense that her toes were curling.
currently

complained

of

pain

in

radiation to the mid to low back.

her

left

leg

and

Plaintiff
toes

with

Plaintiff reported experiencing

numbness in the left leg from her hip to her toes and that she also
had spasms in the region. Plaintiff reported seeing a chiropractor
in October 2007 and having last seen her physician in June 2007.
Plaintiff reported no other complaints.
plaintiff’s

past

medical

unspecified arrhythmia.

history

to

Dr. Inna Park noted

include

hypertension

and

Plaintiff appeared to be in no apparent

distress. Examination of the back showed lumbar spinal tenderness,
as well as paraspinal muscle and gluteal spasms.

Plaintiff was

noted to have an antalgic gait with normal station.

Plaintiff was

8

A
GAF
score
considers
“psychological,
social,
and
occupational functioning on a hypothetical continuum of mental
health/illness.”
Diagnostic and Statistical Manual of Mental
Disorders, Text Revision 34 (4th ed. 2000). A GAF score of 61 to
70 indicates some mild symptoms (e.g., depressed mood and mild
insomnia) or some difficulty in social, occupational, or school
functioning (e.g., occasional truancy, or theft within the
household), but generally functioning pretty well, has some
meaningful interpersonal relationships. Id.
- 16 -

unable to walk on her toes and heels due to pain.
squat to ten percent.

Plaintiff could

Examination of the hip and lumbar spine was

restricted due to severe low back pain.

Plaintiff had limited

range of motion about the lumbar spine.

Straight leg raising on

the left was positive with extreme pain.

Neurological examination

showed

deep

tendon

reflexes

to

be

decreased

in

the

lower

extremities with decreased strength in the left leg. Grip strength
and upper extremity strength was normal.

Upon conclusion of the

examination, Dr. Park diagnosed plaintiff with low back pain with
radicular symptoms and straight leg on the left, suspicious for
disc disease.

X-rays of the lumbar spine taken that same date

showed narrowing and sclerosis at the L-5, S-1 intervertebral disc
space.

(Tr. 552-57.)
On May 1, 2008, Nancy Dunlap, a medical consultant for

disability determinations, completed a Physical Residual Functional
Capacity (RFC) Assessment upon review of records from Esquire Rehab
dated January 2007, from plaintiff’s treating physician dated July
2007, and from the consultative examination.

In the assessment,

Ms. Dunlap opined that plaintiff could occasionally lift and carry
ten pounds, frequently lift and carry less than ten pounds, stand
and/or walk at least two hours in an eight-hour workday, sit about
six hours in an eight-hour workday, and was limited in her ability
to push and/or pull with her lower extremities.

Ms. Dunlap opined

that

limited

plaintiff’s

degenerative

disc

disease

her

to

occasional climbing, balancing, stooping, and crouching, but that
- 17 -

plaintiff could frequently kneel and crawl. Ms. Dunlap opined that
plaintiff

had

no

manipulative,

environmental limitations.

visual,

communicative,

or

(Tr. 558-62.)

In a Psychiatric Review Technique Form completed May 2,
2008,

Kyle

DeVore,

a

psychological

consultant

for

disability

determinations, opined that plaintiff did not have a severe mental
impairment.

(Tr. 563-73.)

Plaintiff visited Dr. Boykin-Wright on July 16, 2008, and
reported having some problems with low back pain and stiffness in
the left hip associated with weight gain during the previous few
months.

Plaintiff reported being able to exercise, however, with

minimal pain and difficulty.

Plaintiff reported plans to begin a

more rigorous exercise program. Plaintiff denied having headaches,
dizziness, shortness of breath, or chest pain.

Plaintiff reported

that she took Flexeril9 at bedtime for painful muscle spasms in her
back.

Physical examination was unremarkable.

Dr. Boykin-Wright

diagnosed plaintiff with supraventricular tachycardia, stable, and
instructed plaintiff to continue with Verapamil.

(Tr. 579.)

In a letter dated July 16, 2008, to “To Whom it May
Concern,” Dr. Boykin-Wright wrote that she had advised plaintiff to
participate in the Fit For Life program at the YMCA in order to
decrease her risks for further heart disease.

9

Dr. Boykin-Wright

Flexeril is a muscle relaxant used to relax muscles and
relieve pain and discomfort caused by strains, sprains, and other
muscle injuries.
Medline Plus (last revised Oct. 1, 2010)
<http://www.nlm.nih.gov/medlineplus/druginfo/meds/a682514.html>.
- 18 -

requested

that

plaintiff

be

permitted

available activities within the program.

to

participate

in

any

(Tr. 591.)

Plaintiff’s prescriptions for Celebrex and Calan were
refilled on October 7, 2008.

(Tr. 578.)

Plaintiff visited Dr. Boykin-Wright on March 31, 2009,
for follow up of supraventricular tachycardia, allergic rhinitis,
and hyperlipidemia.

Plaintiff reported that she felt fine and had

no major complaints. Plaintiff reported that she had been engaging
in more regular exercise to help with arthritis pain in her low
back and hip area.

Plaintiff denied any headaches, dizziness,

chest pains, or shortness of breath.
essentially unremarkable.

Physical examination was

Dr. Boykin-Wright continued in her

diagnosis of supraventricular tachycardia, noting it to be stable
and asymptomatic.
Verapamil.

Plaintiff was instructed to continue with

(Tr. 577.)
Plaintiff was admitted to the emergency room at St.

John’s Mercy Medical Center on July 16, 2009, after being involved
in

a

motor

vehicle

accident.

shoulder

Plaintiff
low

back

of

pain,

left

discomfort,

left

tenderness.

Plaintiff rated her pain at a level six.

the head was unremarkable.

pain,

complained
and

chest
hip

A CT scan of

A CT scan of the cervical spine showed

mild arthritic changes at the C5-C6 and C6-C7 levels, but no
fracture or dislocation was noted.

- 19 -

Plaintiff was discharged that

same date in stable condition and was prescribed Naprosyn10 and
Soma11 upon discharge.

(Tr. 607-25.)

From July 20 to October

9,

2009, plaintiff visited

Esquire Sports Medicine on twenty-three separate occasions for
treatment and manipulation in relation to complaints of body aches
and

stiffness

experienced

as

a

result

of

the

accident.

Considerable improvement, but with impaired range of motion and
mild tenderness, was noted upon the conclusion of these sessions.
(Tr. 630-45.)
Plaintiff visited People’s Health Centers on January 6,
2010,

with

complaints

of

back

pain

and

insomnia.

Plaintiff

reported having low back pain radiating to the left thigh and calf
with a sensation of heaviness in the legs.

Plaintiff also reported

experiencing numbness in the toes. Plaintiff reported experiencing
the pain and numbness while sitting and that she experienced trauma
in July 2009 with the motor vehicle accident.

Plaintiff reported

that lying/resting, sitting, twisting, and walking aggravated her
symptoms and that applying heat relieved the symptoms.
reported the pain to be at a level nine.

Plaintiff

As to her complaints of

insomnia, plaintiff reported being unable to fall asleep due to
10

Naprosyn is used to relieve pain, tenderness, swelling, and
stiffness caused by osteoarthritis, rheumatoid arthritis, and
ankylosing spondylitis. Medline Plus (last revised June 15, 2012)
<http://www.nlm.nih.gov/medlineplus/druginfo/meds/a681029.html>.
11

Soma is a muscle relaxant used to relax muscles and relieve
pain and discomfort caused by strains, sprains, and other muscle
injuries.
Medline Plus (last reviewed Aug. 1, 2010)<http://
www.nlm.nih.gov/medlineplus/druginfo/meds/a682578.html>.
- 20 -

twitching of her legs but that Cymbalta12 provided some relief.
Plaintiff made no complaints of chest pain, irregular heart beat,
palpitations,

muscle

weakness,

or

joint

and

bone

symptoms.

Physical examination was unremarkable. No abnormalities were noted
about the back and spine.

It was noted that plaintiff had normal

range of motion for her age.

Plaintiff was instructed to continue

taking ibuprofen for back ache and to continue with Verapamil,
Cymbalta, Lipitor, and aspirin.

Laboratory testing was ordered.

(Tr. 648-50.)
On July 21, 2010, plaintiff visited Dr. Richard S. Gahn
at Advanced Pain Control, Ltd., with complaints of pain in her low
back, left lower leg, and left hip.

Plaintiff also complained of

problems with her neck, shoulders, and middle back.

Plaintiff

reported that the pain was aggravated by her involvement in a motor
vehicle accident one year prior.
administered

two

steroid

Plaintiff reported having been

injections

the

previous

fall

with

transient improvement in her symptoms. Plaintiff reported the pain
to have gradually returned and worsened.

Plaintiff reported the

pain to worsen with prolonged sitting, standing, bending, and
changing positions from sitting to standing.
that lying down helped her condition.

Plaintiff reported

Plaintiff also reported

intermittent numbness, tingling, and weakness involving the back
12

Cymbalta is used to treat depression and generalized anxiety
disorder, pain and tingling caused by diabetic neuropathy,
fibromyalgia, and ongoing bone or muscle pain such as lower back
pain or osteoarthritis. Medline Plus (last revised Jan. 15, 2012)
<http://www.nlm.nih.gov/medlineplus/druginfo/meds/a604030.html>.
- 21 -

and lower extremities.

Plaintiff’s current medications were noted

to include Cymbalta, Celebrex, Flexeril, ibuprofen, and Calan.
Examination of the chest, lungs, and heart yielded normal results.
Neurological

examination

showed

normal

deep

tendon

reflexes.

Examination of the head and neck showed normal range of motion but
with pain.
cervical

There was no greater occipital nerve tenderness or

facet

tenderness.

Examination

of

the

spine

and

extremities showed normal range of motion and no tenderness about
the shoulders.

Range of motion about the elbows was normal.

Plaintiff exhibited pain with range of motion about the lumbar
spine, but no lumbar facet joint tenderness was noted.
process

tenderness

or

sacroiliac

joint

tenderness

Straight leg raising was painful bilaterally.
Gaenslen’s test were positive bilaterally.

No spinous
was

noted.

Patrick’s test and

Sensation and strength

were normal in the upper and lower extremities, bilaterally.
Trigger points were found in the musculature about the cervical,
lumbar, and thoracic spine.

Dr. Gahn noted an MRI of the lumbar

spine to show mild disc degeneration at L5-S1 and a bulging disc at
the same level.

Dr. Gahn noted that an MRI dated August 4, 2009,

likewise showed a bulging disc at L5-S1.
examination,
compression,

Dr.

Gahn

lumbar;

diagnosed
lumbar

Upon conclusion of the

plaintiff

disc

with

nerve

root

displacement/herniation;

unspecified nerve root and plexus disorder; lumbago; cervical spine
pain; pain in thoracic spine; myalgia and myositis, unspecified;
unspecified musculoskeletal disorders and symptoms referable to
- 22 -

neck; and chronic pain.

Dr. Gahn recommended that plaintiff

continue with Dr. Anthony Miller for chiropractic care, continue
with her current medications, and undergo steroid injections. (Tr.
659-62.)

A lumbar epidural steroid injection was administered on

July 22, 2010.

(Tr. 663-64.)

Plaintiff returned to Dr. Gahn on August 4, 2010, and
reported some improvement in her symptoms.
new numbness, tingling, or weakness.
steroid injection was administered.

Plaintiff reported no

Another lumbar epidural

(Tr. 664-65.)

Plaintiff returned to Dr. Gahn on August 12, 2010, and
reported continued improvement.

Plaintiff complained, however, of

continued pain in her left leg and middle back.

Motor sensory

examination showed no change. Straight leg raising was positive on
the left.

Deep tendon reflexes were noted to be diminished in the

lower extremities but symmetrical.

Examination of the back showed

some myofascial tenderness about the rhomboid region.
lumbar epidural steroid injection was administered.
On January 6,

Another

(Tr. 666-67.)

2011, plaintiff visited Dr. Gahn and

complained of increased pain across the low back toward the left
buttock and hip.

Plaintiff also complained of radiating pain into

the left leg, calf, and ankle as well as intermittent tingling and
numbness in the left calf and ankle.

Plaintiff reported that she

had been taking ibuprofen and using Lidoderm patches13 for the pain.
13

Lidoderm patches are used to relieve the pain of postherpetic neuralgia. Meldine Plus (last reviewed Sept. 1, 2010)
<http://www.nlm.nih.gov/medlineplus/druginfo/meds/a603026.html>.
- 23 -

Physical examination showed plaintiff’s motor sensory exam to be
grossly non-focal.
gait.

Plaintiff was noted to walk with an antalgic

Plaintiff could walk on her heels and toes.

raising was positive on the left.
bilaterally.
the

Straight leg

Patrick’s test was negative

Marked tenderness to deep compression was noted over

sacroiliac

joints

plaintiff’s

symptoms

Sacroiliac

joint

bilaterally.

appeared

injections

to

IV.

Gahn

related

to

sacroiliitis.

administered

bilaterally.

be

were

Lidoderm patches were prescribed.

Dr.

opined

that

(Tr. 667-69.)

The ALJ's Decision

The ALJ found plaintiff to

meet the insured status

requirements of the Social Security Act through December 31, 2012.
The ALJ further found that plaintiff had not engaged in substantial
gainful

activity

since

December

31,

2007.

The

ALJ

found

plaintiff’s severe impairments to consist of heart disease and
degenerative disc disease at C5-6 and C6-7,14 but that plaintiff did
not have an impairment or combination of impairments which met or
medically equaled an impairment listed in Appendix 1, Subpart P,
Regulations No. 4.

The ALJ found plaintiff to have the RFC to

perform light work except that plaintiff was limited to occasional
climbing of stairs and ramps, and occasional stooping, kneeling,
and crouching.

The ALJ found plaintiff’s RFC not to preclude her

from performing her past relevant work as a customer service
14

Plaintiff does not challenge the ALJ’s finding that plaintiff
did not have a severe mental impairment.
Nor does plaintiff
challenge the ALJ’s analysis underlying this finding.
- 24 -

representative, trainer, recruiter, secretary, and receptionist.
Inasmuch as the ALJ found plaintiff able to perform her past
relevant work, the ALJ determined plaintiff not to be under a
disability at any time from December 31, 2007, through the date of
the decision.

(Tr. 15-22.)
V.

Discussion

To be eligible for Social Security Disability Insurance
Benefits and Supplemental Security Income under the Social Security
Act, plaintiff must prove that she is disabled.

Pearsall v.

Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker v. Secretary
of Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992).

The

Social Security Act defines disability 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 12 months."
423(d)(1)(A), 1382c(a)(3)(A).
disabled

"only

if

[her]

42 U.S.C. §§

An individual will be declared

physical

or

mental

impairment

or

impairments are of such severity that [she] is not only unable to
do

[her]

education,

previous
and

work

work

but

cannot,

experience,

engage

considering
in

any

[her]

other

age,

kind

of

substantial gainful work which exists in the national economy." 42
U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
To

determine

whether

a

claimant

is

disabled,

Commissioner engages in a five-step evaluation process.
- 25 -

the

See 20

C.F.R. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-42
(1987).

The Commissioner begins by deciding whether the claimant

is engaged in substantial gainful activity.
working, disability benefits are denied.
decides

whether

the

claimant

has

a

If the claimant is

Next, the Commissioner
“severe”

impairment

or

combination of impairments, meaning that which significantly limits
her ability to do basic work activities.

If the claimant's

impairment(s) is not severe, then she is not disabled.

The

Commissioner then determines whether claimant's impairment(s) meets
or equals one of the impairments listed in 20 C.F.R., Subpart P,
Appendix 1.

If claimant's impairment(s) is equivalent to one of

the listed impairments, she is conclusively disabled.

At the

fourth step, the Commissioner establishes whether the claimant can
perform her past relevant work.
disabled.

If so, the claimant is not

Finally, the Commissioner evaluates various factors to

determine whether the claimant is capable of performing any other
work in the economy.

If not, the claimant is declared disabled and

becomes entitled to disability benefits.
The decision of the Commissioner must be affirmed if it
is supported by substantial evidence on the record as a whole.

42

U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401 (1971);
Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002).

Substantial

evidence is less than a preponderance but enough that a reasonable
person would find it adequate to support the conclusion.
v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
- 26 -

Johnson

This “substantial

evidence test,” however, is “more than a mere search of the record
for evidence supporting the Commissioner’s findings.”

Coleman v.

Astrue, 498 F.3d 767, 770 (8th Cir. 2007) (internal quotation marks
and citation omitted).

“Substantial evidence on the record as a

whole . . . requires a more scrutinizing analysis.”

Id. (internal

quotation marks and citations omitted).
To

determine

whether

the

Commissioner's

decision

is

supported by substantial evidence on the record as a whole, the
Court must review the entire administrative record and consider:
1.

The credibility findings made by the ALJ.

2.

The plaintiff's vocational factors.

3.

The medical evidence from treating and
consulting physicians.

4.

The plaintiff's subjective complaints
relating to exertional and non-exertional
activities and impairments.

5.

Any corroboration by third parties of the
plaintiff's impairments.

6.

The testimony of vocational experts when
required which is based upon a proper
hypothetical question which sets forth
the claimant's impairment.

Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86
(8th Cir. 1992) (quoting Cruse v. Bowen, 867 F.2d 1183, 1184-85
(8th Cir. 1989)).
The Court must also consider any evidence which fairly detracts
from the Commissioner’s decision.

Coleman, 498 F.3d at 770;

Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999).

However,

even though two inconsistent conclusions may be drawn from the
- 27 -

evidence, the Commissioner's findings may still be supported by
substantial evidence on the record as a whole.

Pearsall, 274 F.3d

at 1217 (citing Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir.
2000)).

“[I]f there is substantial evidence on the record as a

whole, we must affirm the administrative decision, even if the
record could also have supported an opposite decision.” Weikert v.
Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal quotation
marks and citation omitted); see also Jones ex rel. Morris v.
Barnhart, 315 F.3d 974, 977 (8th Cir. 2003).
Plaintiff claims that the ALJ’s decision is not supported
by substantial evidence on the record as a whole.

Specifically,

plaintiff contends that the ALJ’s RFC determination is not based
upon some medical evidence of record, and that the ALJ erred at
Step 4 of the analysis by relying on testimony of the vocational
expert which was not based upon a proper hypothetical question.
For the following reasons, plaintiff’s argument regarding the ALJ’s
RFC determination is well taken and this cause should be remanded
to the Commissioner for further proceedings.
Residual functional capacity is what a claimant can do
despite her limitations.
(8th Cir. 2001).
assessing

a

Dunahoo v. Apfel, 241 F.3d 1033, 1039

The ALJ bears the primary responsibility for

claimant's

RFC

based

on

all

relevant

evidence,

including medical records, the observations of treating physicians
and others, and the claimant's description of her limitations.
Krogmeier v. Barnhart, 294 F.3d 1019, 1024 (8th Cir. 2002); Hutsell
- 28 -

v. Massanari, 259 F.3d 707, 711 (8th Cir. 2001); Dunahoo, 241 F.3d
at 1039 (citing Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir.
1995));

see

also

20

C.F.R.

§§

404.1545(a),

416.945(a)).

A

claimant's RFC is a medical question, however, and some medical
evidence must support the ALJ's RFC determination.
F.3d at 711-12.

Hutsell, 259

The ALJ is "required to consider at least some

supporting evidence from a [medical professional]" and should
therefore obtain medical evidence that addresses the claimant's
ability to function in the workplace.
quotation marks and citation omitted).

Id. at 712 (internal
An ALJ's RFC assessment

which is not properly informed and supported by some medical
evidence in the record cannot stand.

Id.

The burden to prove the

claimant's RFC rests with the claimant and not the Commissioner.
Pearsall, 274 F.3d at 1217.
In the instant cause, the ALJ determined that plaintiff
had

the

RFC

to

“perform

light

occasional climbing of stairs

work

except

limited

to

only

and ramps, and only occasional

stooping, kneeling and crouching.”

(Tr. 19.)

Light work is

defined as work that “requires a good deal of walking or standing,
or . . . involves sitting most of the time with some pushing and
pulling of arm or leg controls.”
416.967(b).

20 C.F.R. §§ 404.1567(b),

Light work also involves lifting no more than twenty

pounds at a time, with frequent lifting or carrying of objects
weighing up to ten pounds.

20 C.F.R. §§ 404.1567(b), 416.967(b).

The ALJ here factually summarized the evidence of plaintiff’s
- 29 -

medical examinations and treatment received between April 2008 and
July

2009

but

did

not

discuss

or

examine

how

such

demonstrated that plaintiff could perform light work.

evidence

Indeed, the

only “discussion” regarding plaintiff’s ability to engage in workrelated activities appeared to be a cursory reliance on the absence
of medical opinions stating that plaintiff could not engage in
work-related activities:

“No doctor has stated that the claimant

is disabled or that she cannot work.
physician

opinion

of

disability

A record which contains no

detracts

from

the

claimant’s

subjective complaints.” (Tr. 21.) An absence of opinion, however,
does not constitute medical evidence upon which an ALJ may base his
RFC assessment.
2001).

"A

See Lauer v. Apfel, 245 F.3d 700, 705 (8th Cir.

treating

doctor's

silence

on

the

claimant's

work

capacity does not constitute substantial evidence supporting an
ALJ's functional capacity determination when the doctor was not
asked to express an opinion on the matter and did not do so[.]"
Hutsell, 259 F.3d at 712; see also Lauer, 245 F.3d at 705 (although
Commissioner argues that physician never indicated that claimant
was unable to engage in work-related activities, physician was
never asked to express an opinion about that issue); Nevland v.
Apfel, 204 F.3d 853, 858 (8th Cir. 2000) ("In spite of the numerous
treatment notes discussed above, not one of [claimant's] doctors
was

asked

to

comment

on

his

ability

to

function

in

the

workplace.").
In addition, despite numerous treatment records predating
- 30 -

April 2008 from plaintiff’s treating physician and therapists
detailing plaintiff’s continued complaints of and treatment for low
back, hip, and leg pain, the ALJ wholly failed to address such
evidence.

While an ALJ need not discuss every piece of medical

evidence, Wildman v. Astrue, 596 F.3d 959, 966 (8th Cir. 2010), the
ALJ’s wholesale failure to address such evidence here leaves the
Court unable to determine whether it was considered and rejected,
and

whether

evidence.

any

rejection

was

properly

based

on

substantial

Jones v. Chater, 65 F.3d 102, 104 (8th Cir. 1995).

“Initial determinations of fact and credibility are for the ALJ,
and must be set out in the decision; we cannot speculate whether or
why an ALJ rejected certain evidence.
necessary to fill this void in the record.”

Accordingly, remand is
Id. (internal citation

omitted).
Finally, invoking Social Security Ruling 96-6p, the ALJ
considered the initial administrative Notice of Disapproved Claims,
directed to plaintiff and signed by the Regional Commissioner of
the Social Security Administration (Tr. 73-77), to constitute an
“expert opinion” on the issue of plaintiff’s capabilities and
limitations.

(Tr. 21.)

This was error.

Social Security Ruling 96-6p dictates that “[f]indings of
fact made by State agency medical and psychological consultants and
other program physicians and psychologists regarding the nature and
severity of an individual’s impairment(s) must be treated as expert
opinion evidence of nonexamining sources at the administrative law
- 31 -

judge . . . level[] of administrative review.”

SSR 96-6p, 1996 WL

362203, at *34467 (Soc. Sec. Admin. July 2, 1996) (emphasis added).
“[T]he administrative law judge . . . must consider and evaluate
any assessment of the individual’s RFC by a State agency medical or
psychological

consultant

psychologists.”
As
Disapproved

and

by

other

program

physicians

or

Id. at *34468 (emphasis added).

noted
Claims

above,
to

be

the
an

ALJ

expert

considered
opinion

the

under

Notice
SSR

of

96-6p.

Although the Notice cursorily states that “[d]octors and other
trained staff looked at this case and made this decision[]” (Tr.
74), no findings or RFC assessments by any State agency medical
consultant or other program physician are contained within this
Notice.

There is no basis upon which to consider this letter

penned by an agency administrator as an expert opinion under SSR
96-6p.
A review of the record in its entirety, however, shows
that a State agency medical consultant, Nancy Dunlap, completed an
RFC assessment in May 2008 in which she opined that plaintiff was
limited to lifting no more than ten pounds and was limited in her
ability to push and/or pull with her lower extremities.

Notably,

the ALJ’s decision is devoid of any mention of Ms. Dunlap’s RFC
assessment and thus, on its face runs afoul of the dictates of SSR
96-6p.
the

Significantly, Ms. Dunlap’s findings are inconsistent with

ALJ’s

determination

that

requirements of light work.

plaintiff

could

engage

in

the

Indeed, Ms. Dunlap’s RFC assessment
- 32 -

imposes

functional

limitations

determined by the ALJ.
Dunlap’s

RFC

more

restrictive

than

those

Given the ALJ’s failure to acknowledge Ms.

assessment,

his

decision

lacks

any

discussion

reconciling the inconsistency between Ms. Dunlap’s more restrictive
assessment and the ALJ’s RFC determination.15
For all of the foregoing reasons, the ALJ's determination
that plaintiff retained the RFC to engage in light work was not
supported by substantial evidence on the record as a whole.

This

cause should therefore be remanded to the Commissioner for a proper
assessment of plaintiff's functional limitations resulting from her
impairments,

including

obtaining

information

from

plaintiff's

treating physician and/or therapists, and properly considering
expert opinion evidence.

Dixon v. Barnhart, 324 F.3d 997, 1003

(8th Cir. 2003); Nevland, 204 F.3d at 858; Vaughn v. Heckler, 741
F.2d 177, 179 (8th Cir. 1984).
To

the

extent

plaintiff

claims

that

the

vocational

expert’s testimony does not constitute substantial evidence upon
which the ALJ could make his adverse decision inasmuch as such
testimony was based upon an improper hypothetical question, the
undersigned notes, first, that the ALJ made such decision at Step
4 of sequential process by finding that plaintiff could perform her
past relevant work. Vocational expert testimony is not required at
Step 4 where the claimant retains the burden of proving she cannot
15

Notably, a review of Ms. Dunlap’s assessment shows her to
have reviewed plaintiff’s medical records predating April 2008; the
same records which went unmentioned in the ALJ’s decision.
- 33 -

perform past relevant work.

Lewis v. Barnhart, 353 F.3d 642, 648

(8th Cir. 2003) (citing Banks v. Massanari, 258 F.3d 820, 827 (8th
Cir. 2001) (en banc); Gaddis v. Chater, 76 F.3d 893, 896 (8th Cir.
1996); Barrett v. Shalala, 38 F.3d 1019, 1024 (8th Cir. 1994)).
Nevertheless, as discussed supra, the ALJ’s RFC determination was
not supported by substantial evidence on the record as a whole.
Because the hypothetical question posed to the vocational expert
was based upon the faulty determination of plaintiff’s RFC, the
vocational expert's answer to that question cannot constitute
sufficient

evidence

that

plaintiff

substantial gainful employment.
Therefore,

for

all

was

able

to

engage

in

Lauer, 245 F.3d at 706.
of

the

foregoing

reasons,

the

Commissioner’s adverse decision is not supported by substantial
evidence on the record as a whole, and the cause should be remanded
to the Commissioner for further consideration.
Accordingly,
IT

IS

HEREBY

Commissioner

is

REVERSED

ORDERED
and

that

this

the

cause

decision

is

REMANDED

of

the

to

the

Commissioner for further proceedings.
Judgment shall be entered accordingly.

UNITED STATES MAGISTRATE JUDGE

Dated this

14th

day of November, 2012.
- 34 -