Powell v. Astrue

Filing 19

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and this matter is remanded pursuant to the fourth sentence of 42 U.S.C. § 405 (g) for further proceedings. A separate Judgment in accordance with this Memorandum and Order will be entered this same date. Signed by District Judge Carol E. Jackson on 8/6/2012. (KMS)

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

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Case No. 4:11-CV-1340 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court for review of an adverse ruling by the Social
Security Administration.
I. Procedural History
On March 14, 2008, plaintiff Nancy Powell filed an application for supplemental
security income, Title XVI, 42 U.S.C. §§ 1381 et seq., with an alleged onset date of
February 7, 2007. (Tr. 184-87). After plaintiff’s application was denied on initial
consideration (Tr. 144-48), she requested a hearing from an Administrative Law Judge
(ALJ). See 151-52.
Plaintiff and counsel appeared for a video hearing on January 20, 2010. (Tr. 95142). The ALJ issued a decision denying plaintiff’s application on June 26, 2010 (Tr.
78-93), and the Appeals Council denied plaintiff’s request for review on July 15, 2011.
(Tr. 1-4). Accordingly, the ALJ’s decision stands as the Commissioner’s final decision.
II. Evidence Before the ALJ
A. Disability Application Documents
In her Disability Report (Tr. 194-202), plaintiff listed her disabling conditions as
neurofibromatosis Type 1, high blood pressure, migraines, back problems, brown spots
on her brain, and a large mass on her leg. She stated that standing for long periods

of time caused her back pain. She had severe migraine headaches for which she went
to the emergency room to receive pain medication. She had worked as a factory
assembler, home health aide, receptionist, telemarketer, daycare teacher, cashier, and
secretary.

She was taking Adipex for weight loss, Midrin for migraines, and

unidentified medication for high blood pressure. (Tr. 200). Topamax1 and Lortab2
appeared on an updated medications list. (Tr. 240).
In her Function Report (Tr. 216-23), plaintiff stated that she took care of her six
children, ages two through twelve. In response to a question regarding her average
daily activities, plaintiff wrote that she “give[s] children breakfast, lunch [and] dinner”
and does “everything” for them. She indicated that, due to depression and migraines,
her self care had changed but did not specify those changes. She prepared simple
meals that could be completed in less than 30 minutes. She stated that back and leg
pain prevented her from doing most household chores or maintenance tasks. She
went grocery shopping once a month. She was able to count change, pay bills, and
handle a savings or checking account. She indicated that she had no hobbies, had
difficulty reading, and could not sit still long enough to watch a 30-minute television
show or two-hour movie. She had a valid driver’s license and drove a short distance
to medical appointments once a month. She indicated that she had difficulty leaving
her house, due to depression, headaches, and pain.
B. Hearing on January 20, 2010

1

Topiramate (brand name Topamax) is an anticonvulsant that is used to prevent
migraine headache but not to relieve the pain of migraines when they occur.
http://www.nlm.nih.gov/medlineplus/druginfo/meds/a697012.html.
2

Lortab is a combination of acetaminophen and hydrocodone bitartrate, a
semisynthetic narcotic analgesic, indicated for the relief of moderate to moderately
severe pain. See Phys. Desk Ref. 3314-15 (60th ed. 2006).
-2-

At the time of the hearing, plaintiff was 34 years old. She lived in a house with
her husband and six children, ages 14, 9, 8, 5, 5, and 3. (Tr. 99). She left school at
age 16 before she completed the 8th grade. She testified that she had been held back
“a couple times” due to poor reading comprehension. She had been in GED classes for
five years and was assessed as performing at a seventh grade level. Her husband did
not work. She initially stated that this was because he needed to take care of her and
the children. (Tr. 115). She later acknowledged, however, that he is on disability, as
are two of her children. The family also received housing assistance and food stamps.
(Tr. 116-17).
Plaintiff testified that she was last employed two or three years earlier as an
order filler at a factory. She quit after three days because her leg was swollen and
numb and she could not walk. (Tr. 100-01). In the fifteen years before she applied
for benefits, plaintiff also worked as a receptionist, a home healthcare aide, a
telemarketer, a nursing home aide, a hotel housekeeper, and a cashier. (Tr. 102-04).
Although vague, plaintiff’s testimony suggested that she did not maintain any position
for more than a few weeks. See Tr. 132-36.
Plaintiff is 4 feet 11 inches tall and, at the time of the hearing, weighed 185
pounds. (Tr. 99). She testified that her weight rose and fell between 185 and 208
pounds. She suffered migraine headaches with light sensitivity, nausea, vomiting,
visual disturbances, and soreness in her head. Her migraines lasted five or more days
during which she lay in bed. She estimated that she had migraines 19 or 20 days out
of 30. During those times, she did not eat, bathe, or change her clothes. (Tr. 106).
She took medication but did not believe that it helped. In addition to headaches,
plaintiff testified that she has a tumor the size of a softball on her right leg. (Tr. 109).

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Walking, standing, and driving for more than 20 minutes caused her leg to “give out.”
(Tr. 111). Most activities -- including bending, stooping, lifting and carrying anything
weighing more than five pounds -- caused her to fall. (Tr. 112). The only thing that
eased the pain in her leg was to elevate it. Plaintiff also has depression. She testified
that she cries two or three times a day, in episodes that last about an hour. Anxiety
and worry kept her from sleeping well. (Tr. 107-08).
According to plaintiff’s testimony, all household chores were completed by her
husband and mother, who lives nearby and spends about half of every day assisting
plaintiff and her family. Plaintiff testified that she had no interest in her own personal
care and had to be reminded to take care of her grooming. In response to questions
from the ALJ, plaintiff stated that she did not engage in childcare activities beyond
watching television or napping with the children. (Tr. 123).
Gary Weimholt, a vocational expert, provided testimony regarding plaintiff’s past
work.3 (Tr. 134-36). The ALJ ultimately excluded consideration of many of plaintiff’s
past jobs and focused on her work as a motel housekeeper and telemarketer, both of
which the expert testified are classified as light and unskilled. Mr. Weimholt also
testified that the housekeeper position has a Specific Vocational Preparation (SVP) level
of 2, while the telemarketer position has an SVP of 3.4 Plaintiff indicated that she

3

The ALJ asked the vocational expert to identify any work plaintiff performed
from January 20, 1995 up to the date of the hearing. He responded that he could not
tell whether plaintiff’s past work satisfied the requirements of substantial gainful
activity. (Tr. 133). The ALJ indicated that he would make that determination.
4

The SVP level listed for each occupation in the Dictionary of Occupational Titiles
(DOT) connotes the time needed to learn the techniques, acquire the information, and
develop the facility needed for average work performance. Hulsey v. Astrue, 622 F.3d
917, 923 (8th Cir. 2010). At SVP level 2, an occupation requires more than a short
demonstration but not more than one month of vocational preparation; level 3 covers
occupations that require over 30 days and up to and including 3 months. 20 C.F.R. §
-4-

worked in housekeeping for 3 months and as a telemarketer for 5 weeks. (Tr. 205).
The ALJ asked Mr. Weimholt about the employment opportunities for an
individual with plaintiff’s education, training and work experience, with the ability to
perform light work, who must avoid certain hazards and environmental conditions,
including heights, fumes and excessive noise. The vocational expert opined that such
an individual would be able to perform plaintiff’s past relevant work as a housekeeper
and telemarketer. (Tr. 138). He was next asked to assume that the individual was
unable to understand, remember, or carry out simple instructions; make simple
judgments; respond appropriately to co-workers, supervisors, or usual work situations;
or deal with changes in a routine work setting. He opined that an individual with these
limitations would be unable to return to plaintiff’s past relevant work or perform any
other work in the national economy. (Tr. 139-41).
C. Medical Evidence
In early 2007, plaintiff sought treatment from urgent care centers and
emergency rooms for a variety of ailments, including bronchitis, laryngitis and
pneumonia. (Tr. 254-59, 281-94). On June 13, 2007, plaintiff saw her primary care
physician, Jesse D. Helton, D.O. (Tr. 330).

She reported that she had “bad

depression,” that she was unable to sleep, and cried “all the time.” She identified her
weight problems, two recent deaths, and illness in her immediate family as
precipitating factors in her mood. She did not have suicidal ideation. Plaintiff also had
some recent episodes of headache and elevated blood pressure. Dr. Helton noted that
plaintiff had not previously received treatment for these conditions. He prescribed a

656.3.
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trial of Clonidine for treatment of hypertension and anxiety and Prozac for treatment
of depression.
On June 18, 2007, plaintiff was treated at St. John’s Mercy Emergency
Department for a “minimal” displacement of her right wrist and a Colles fracture to the
right distal radius. (Tr. 304-19). The examining physician noted that plaintiff had a
full range of motion and “appear[ed] very comfortable when not being examined.”
(Tr. 308). She was provided with a splint and a prescription for Vicodin. She was
urged to follow up with an orthopedist. On July 12, 2007, she reportedly sustained
further injury to the same wrist and sought treatment at St. Anthony’s Urgent Care
Center. (Tr. 246-50). She rated the pain at level 7 on a 10-point scale. She reported
that she had sustained an “extensive” fracture 5 weeks earlier but could not afford to
follow up with an orthopedist. X-rays were negative and plaintiff was discharged with
instructions to take Ibuprofen or Tylenol.
On July 30, 2007, plaintiff sought treatment at St. John’s Mercy Emergency
Department. (Tr. 295-303). She stated that she awoke with a “sharp” headache that
was sensitive to light. She also reported nausea. She was observed to have a steady
gait.

After receiving treatment with Ketorolac,5 Compazine, and Benadryl, she

reported that her pain was almost fully relieved. (Tr. 299).
On August 4, 2007, plaintiff was diagnosed with pneumonia. (Tr. 281-94). On
August 22, 2007, she was transported to the emergency room by ambulance with
complaints of chest pain. (Tr. 263-80). She described the pain as radiating to her
back and rated it at level 9 on a 10-point scale. She had been experiencing the pain

5

Ketorolac tromethamine, or Toradol, is “a nonsteroidal antiinflammatory drug
administered intramuscularly, intravenously, or orally for short-term management of
pain[.]” See Dorland’s Illustrated Med. Dict. 1966, 998 (31st ed. 2007).
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sporadically for three weeks. Plaintiff reported that in the past she had been told that
these symptoms might be due to her gallbladder. (Tr. 273). She was oriented and
breathing with ease and her skin was warm and dry. (Tr. 265). An ultrasound of the
abdomen revealed a normal liver, gallbladder, and pancreas, mild splenomegaly, and
echogenic portions of the kidney raising a question of medullary sponge kidney. (Tr.
263). An EKG was normal. (Tr. 268). She was treated with Toradol and morphine
and discharged.
Plaintiff saw Dr. Helton for follow up on August 28, 2007. She complained of
epigastric pain that radiated to her back and caused nausea. (Tr. 329). She reported
that the emergency room physician told her that her gallbladder was the source of her
problem but, as Dr. Helton noted, her ultrasound was normal. She was started on a
trial of Nexium.
Plaintiff returned to Dr. Helton’s office on November 9, 2007. (Tr. 328). She
reported that she continued to experience periodic epigastric pain that lasted a few
days when present. The Nexium did not help. On examination, Dr. Helton noted the
presence of a soft-ball sized neurofibroma on her right lateral leg.

Plaintiff weighed

197 pounds and she complained that she had been unable to lose weight despite
various diet plans and over-the-counter preparations. She stated that she walked two
or three laps around a track every day. Plaintiff was started on Adipex for weight loss.
On December 7, 2007, plaintiff complained of a cough and headache. (Tr. 326).
One child had strep throat and another had pneumonia. She had lost 15 pounds and
otherwise appeared well. Dr. Helton prescribed medications for congestion and refilled
plaintiff’s prescription for Adipex. On January 4, 2008, plaintiff reported that she had
had constant pain in her right shoulder for two weeks that was made worse by using

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a computer mouse. (Tr. 326). Her chiropractor told her it was a rotator cuff tear. On
examination, Dr. Helton noted marked weakness and tenderness on palpation. He
referred plaintiff for an MRI and told her to take Ibuprofen for pain.
Plaintiff returned on February 6, 2008. (Tr. 325). She continued to complain
of shoulder pain. In addition, she had a headache, sore throat, and a slight injury to
her left hand. On examination of the hand, Dr. Helton observed mild bruising and
tenderness on palpation, but no fracture or neurovascular deficit. He splinted her
fingers and prescribed antibiotics for an upper respiratory infection. Overall, plaintiff
appeared well and was not in apparent distress.

On March 11, 1008, plaintiff

requested medication for headaches. She reported that her mother took Topamax and
she wanted to try it.

(Tr. 324).

Dr. Helton diagnosed plaintiff with headache

(cephalgia) and essential hypertension and prescribed a trial of Inderal to treat both
conditions. On April 8, 2008, plaintiff reported that she was not taking the Inderal
every day as prescribed and again requested a prescription for Topomax. (Tr. 323).
Dr. Helton noted that plaintiff needed a sleep study for hypersomnia but that she
wanted to wait until she had health insurance. The diagnoses on that day included
migraine cephalgia, malaise, hypersomnia, and essential hypertension. Plaintiff was
given a trial of Topomax for headaches and was advised to take her Inderal daily to
regulate her blood pressure. On May 6, 2008, plaintiff reported to Dr. Helton that she
was doing well with her current medications. (Tr. 334). He described her as appearing
well and in no apparent distress. He also noted the presence of neurofibromas on her
face and extremities.
On May 12, 2008, Marsha Toll, Psy.D., completed a Psychiatric Review
Technique. (Tr. 335-45). Dr. Toll concluded that plaintiff had a medically determinable

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diagnosis of depression but that her condition was not severe.

Plaintiff had mild

difficulties in maintaining social functioning and concentration, persistence or pace. In
a narrative section, Dr. Toll noted that plaintiff did not allege disability due to a mental
condition. The only complaint of depression in the medical record occurred in June
2007, when plaintiff reported that there had been two deaths in the family. Plaintiff’s
daily activities included caring for six children. She indicated that she had experienced
changes in her self care and that she found it difficult to leave home due to feeling
depressed. These claims were considered partially credible but, based on the totality
of the evidence, plaintiff’s impairment was not severe.
A nonexamining consultant6 completed a Physical Residual Functioning Capacity
Assessment (PRFCA) on May 12, 2008. (Tr. 346-51). Based on a review of the
medical records, the consultant determined that plaintiff can occasionally lift or carry
20 pounds and frequently carry 10 pounds. She can sit, stand, or walk about 6 hours
in an 8 hour day, and had no limitations in pushing or pulling. The examiner noted
that plaintiff claimed disability due to neurofibromatosis, high blood pressure,
migraines, back problems, brown spots on the brain and a mass on her left leg. The
medical record included diagnoses for neurofibromatosis and morbid obesity. With
respect to plaintiff’s migraine headaches, the examiner noted that her symptoms did
not rise to “listing level,” but plaintiff should nonetheless avoid exposure to
environmental hazards and noise during migraines. Plaintiff was also treated for high

6

The form indicates that the PRFCA was completed by a Single Decision Maker
(SDM). Missouri is one of ten test states participating in a prototype test of the SDM
model, in which “Disability Examiners with SDM authority complete all disability
determination forms and make initial disability determinations in many cases without
medical or psychological consultant (MC or PC) signoff.” https://secure.ssa.gov/poms.
nsf/lnx/0412015100 (last visited on July 18, 2012).
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blood pressure, which had not resulted in end organ failure, but which necessitated a
restriction on working on heights.

The medical record did not include ongoing

complaints of, or treatment for, back pain. Plaintiff’s daily activities included caring for
six children. She had difficulty with chores and shopping and was unable to watch a
2-hour movie7 because she could not stand or sit for a long period of time. These
allegations were considered partially credible and would not preclude her from
performing within the specified limitations.
Plaintiff returned to the emergency room on June 8, 2008, for treatment of a
headache that had lasted three days.

(Tr. 353-71).

She reported that she had

dizziness and pain at the base of her skull and dizziness. She complained of nausea
and was unable to catch her breath. She also reported seeing spots and having
episodes of confusion during which she blacked out and became nonresponsive. A
physical examination did not disclose any weakness, fever, or neurological deficits. A
CT scan of her head was normal. (Tr. 369). Plaintiff was diagnosed with headache and
vertigo and discharged with prescriptions for Meclizine and Darvocet.
Plaintiff was seen at the emergency room on September 17, 2008, with
increased swelling in her right lower leg that started the previous day. (Tr. 372-87).
On examination, there was pain on palpation and with walking, but no redness or
warmth. She rated the pain at level 9 on a 10-point scale. She also had pain in her
left ear. She was diagnosed with cellulitis and discharged with a prescription for Keflex
and Percocet.

7

As noted above, plaintiff also stated that she could not watch a 30-minute
television show. This allegation is not addressed in the PRFCA.
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On October 16, 2008, Stanley London, M.D., completed a consultative
orthopedic evaluation of plaintiff. (Tr. 388-94). His report indicates that he did not
review any records. Plaintiff’s chief complaints involved pain in her right leg and back.
She reported that she bumped her lower right leg 14 years earlier. She had a swelling
that occasionally became black and blue. She was told that the swelling may be torn
muscles or ligaments. She also reported back pain with “questionable radiation to her
right leg” with numbness and tingling, that had been occurring since she had a fall 15
years earlier. She described the pain as sharp and stated that the pain in her leg was
constant while the back pain came and went. She reported that she could walk for a
block, and stand or sit for 20 minutes.

She did not use a cane or crutch.

On

examination, Dr. London noted that plaintiff did not have true radiation of pain. He
described a soft mass on plaintiff’s lower right leg that was about 14 cm. across. She
walked slowly and favored her right leg. She had trouble heel walking and squatting
and was able to toe walk “a little.” She got on and off the examining table with
difficulty. She had some hypesthesia in the right lower leg compared to the left leg;
reflexes at her knees and ankles were hypoactive. Straight-leg raising was positive,
with pain produced at 30 degrees, and her range of motion was limited. On a 5-point
scale of muscle strength, with 5 indicating normal strength, plaintiff’s lower right leg
was rated at 4. (Tr. 392). However, she made only fair effort. Dr. London’s clinical
impressions were possible degenerative joint disease or disc disease and right leg posttrauma swelling and weakness with possible effusion or muscle tearing. Dr. London
opined that plaintiff had a disability expected to last for 3 to 5 months. (Tr. 394).
Plaintiff was treated for laryngitis and strep throat in January 2009 (Tr. 402-07),
and for pain in her clavicle in March 2009. (Tr. 408-12). In April 2009, she was

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diagnosed with bronchitis. (Tr. 413-16). In September 2009, she sought treatment
for chronic pain in her left knee which had recently worsened. (Tr. 418-21). She had
decreased range of motion and tenderness, without redness or swelling. X-rays were
normal. Two days later she required treatment for a punctured ear drum. (Tr. 423).
III. The ALJ’s Decision
In the decision issued on June 26, 2010, the ALJ made the following findings:
1.

Plaintiff has not engaged in substantial gainful activity since March 10,
2008, the application date.8

2.

Plaintiff has the following severe impairments: migraine headaches,
hypertension, neurofibromatosis, and morbid obesity.

3.

Plaintiff does not have an impairment or combination of impairments that
meets or substantially equals one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1.

4.

Plaintiff has the residual functional capacity (RFC) to perform a limited
range of light work: she can occasionally lift and/or carry (including
upward pulling) 20 pounds and frequently lift and/or carry (including
upward pulling) 10 pounds. She can stand and/or walk for 6 hours in an
8-hour day and can sit for 6 hours in an 8-hour day. She has
nonexertional limitations in that she must avoid concentrated exposure
to noise, fumes, odors, dust, gases, poor ventilation; and hazards such
as dangerous moving machinery, unprotected heights, and open flames
or heat.

5.

Plaintiff is able to perform her past relevant work as a housekeeper and
telemarketer. This work does not require performance of work-related
activities precluded by her residual functional capacity.

6.

Plaintiff has not been under a disability, as defined in the Social Security
Act, from March 10, 2008, through the date of the decision.

(Tr. 81-90).
IV. Legal Standards

8

The application is dated March 14, 2008.
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The Court must affirm the Commissioner’s decision “if the decision is not based
on legal error and if there is substantial evidence in the record as a whole to support
the conclusion that the claimant was not disabled.” Long v. Chater, 108 F.3d 185, 187
(8th Cir. 1997). “Substantial evidence is less than a preponderance, but enough so
that a reasonable mind might find it adequate to support the conclusion.” Estes v.
Barnhart, 275 F.3d 722, 724 (8th Cir. 2002) (quoting Johnson v. Apfel, 240 F.3d 1145,
1147 (8th Cir. 2001)). If, after reviewing the record, the Court finds it possible to
draw two inconsistent positions from the evidence and one of those positions
represents the Commissioner’s findings, the Court must affirm the decision of the
Commissioner. Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011) (quotations and
citation omitted).
To be entitled to disability benefits, a claimant must prove she is unable to
perform any substantial gainful activity due to a medically determinable physical or
mental impairment that would either result in death or which has lasted or could be
expected to last for at least twelve continuous months. 42 U.S.C. § 423(a)(1)(D),
(d)(1)(A); Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009). The Commissioner
has established a five-step process for determining whether a person is disabled. See
20 C.F.R. § 404.1520; Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009). “Each step
in the disability determination entails a separate analysis and legal standard.” Lacroix
v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006).
Steps one through three require the claimant to prove (1) she is not currently
engaged in substantial gainful activity, (2) she suffers from a severe impairment, and
(3) her disability meets or equals a listed impairment. Pate-Fires, 564 F.3d at 942.

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If the claimant does not suffer from a listed impairment or its equivalent, the
Commissioner’s analysis proceeds to steps four and five. Id.
“Prior to step four, the ALJ must assess the claimant’s [RFC], which is the most
a claimant can do despite her limitations.” Moore, 572 F.3d at 523 (citing 20 C.F.R.
§ 404.1545(a)(1)). “RFC is an administrative assessment of the extent to which an
individual’s medically determinable impairment(s), including any related symptoms,
such as pain, may cause physical or mental limitations or restrictions that may affect
his or her capacity to do work-related physical and mental activities.” Social Security
Ruling (SSR) 96-8p, 1996 WL 374184, *2. “[A] claimant’s RFC [is] based on all
relevant evidence, including the medical records, observations by treating physicians
and others, and an individual’s own description of his limitations.” Moore, 572 F.3d at
523 (quotation and citation omitted).
In determining a claimant’s RFC, the ALJ must evaluate the claimant’s credibility.
Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Pearsall v. Massanari, 274 F.3d
1211, 1217 (8th Cir. 2002). This evaluation requires that the ALJ consider “(1) the
claimant’s daily activities; (2) the duration, intensity, and frequency of the pain; (3)
the precipitating and aggravating factors; (4) the dosage, effectiveness, and side
effects of medication; (5) any functional restrictions; (6) the claimant’s work history;
and (7) the absence of objective medical evidence to support the claimant’s
complaints.” Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011) (quotation and
citation omitted). “Although ‘an ALJ may not discount a claimant’s allegations of
disabling pain solely because the objective medical evidence does not fully support
them,’ the ALJ may find that these allegations are not credible ‘if there are
inconsistencies in the evidence as a whole.’” Id. (quoting Goff v. Barnhart, 421 F.3d

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785, 792 (8th Cir. 2005)). After considering the seven factors, the ALJ must make
express credibility determinations and set forth the inconsistencies in the record which
caused the ALJ to reject the claimant’s complaints. Singh v. Apfel, 222 F.3d 448, 452
(8th Cir. 2000); Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998).
At step four, the ALJ determines whether claimant can return to her past
relevant work, “review[ing] [the claimant’s] [RFC] and the physical and mental
demands of the work [claimant has] done in the past.” 20 C.F.R. § 404.1520(e). The
burden at step four remains with the claimant to prove her RFC and establish that she
cannot return to her past relevant work. Moore, 572 F.3d at 523; accord Dukes v.
Barnhart, 436 F.3d 923, 928 (8th Cir. 2006); Vandenboom v. Barnhart, 421 F.3d 745,
750 (8th Cir. 2005).
If the ALJ holds at step four of the process that a claimant cannot return to past
relevant work, the burden shifts at step five to the Commissioner to establish that the
claimant maintains the RFC to perform a significant number of jobs within the national
economy. Banks v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001). See also 20 C.F.R.
§ 404.1520(f).
If the claimant is prevented by her impairment from doing any other work, the
ALJ will find the claimant to be disabled.
V. Discussion
Plaintiff contends that the ALJ erred in determining her RFC and the hypothetical
posed to the vocational expert did not reflect plaintiff’s impairments.
Based on his review of the medical evidence and assessment of plaintiff’s
credibility, the ALJ determined that plaintiff has the RFC to perform a limited range of
light work in that she can occasionally lift and/or carry 20 pounds and frequently lift

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and/or carry 10 pounds. She can stand and/or walk for 6 hours in an 8-hour day and
can sit for 6 hours in an 8-hour day.
A claimant’s RFC is “the most a claimant can still do despite his or her physical
or mental limitations.” Martise v. Astrue, 641 F.3d 909, 923 (8th Cir. 2011) (internal
quotations, alteration and citations omitted). “The ALJ bears the primary responsibility
for determining a claimant’s RFC and because RFC is a medical question, some medical
evidence must support the determination of the claimant’s RFC.”

Id. (citation

omitted). “However, the burden of persuasion to prove disability and demonstrate RFC
remains on the claimant.” Id. Even though the RFC assessment draws from medical
sources for support, it is ultimately an administrative determination reserved to the
Commissioner. Cox v. Astrue, 495 F.3d 614, 619 (8th Cir. 2007) (citing 20 C.F.R. §§
416.927(e)(2), 416.946 (2006)). “The need for medical evidence . . . does not require
the [Commissioner] to produce additional evidence not already within the record.”
Howard v. Massanari, 255 F.3d 577, 581 (8th Cir. 2001). The ALJ “is permitted to
issue a decision without obtaining additional medical evidence so long as other
evidence in the record provides a sufficient basis for the ALJ’s decision.” Id. (quotation
and citation omitted).
Although plaintiff does not challenge the ALJ’s credibility determination, a brief
summary is useful. The ALJ discounted plaintiff’s allegations of disabling headaches,
noting that she received “essentially routine and conservative” care provided by her
family practitioner, with no assessment from a specialist and only infrequent
emergency treatment. As for her complaints of back and leg pain, the ALJ noted that
there was no evidence of nerve root compression or radiculopathies. Although plaintiff
favored her right leg, she walked without assistive devices. Plaintiff had long periods

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of time following her alleged date of onset during which she took no pain medication.
The ALJ also discredited plaintiff’s account of her daily activities as inconsistent with
her Function Report. The Court finds no error in the ALJ’s credibility assessment.
Plaintiff argues that the ALJ improperly based his RFC determination on the
PRFCA completed by an agency nonmedical examiner.

In reaching his RFC

determination, the ALJ stated that he:
consider[ed] the opinions of the State agency medical consultants who
evaluated the evidence of record at the initial and reconsideration levels of the
administrative review process and assessed that the claimant retained the
capacity to perform light work with environmental limitations. (Exhibit B-6F).
The [ALJ] gives the opinions of the State agency medical consultants great
weight because they are well supported by medically acceptable clinical and
laboratory findings, and are consistent with the record when viewed in its
entirety.
(Tr. 89).9
An ALJ may rely upon the opinion of a nontreating or consultative “medical
source,” but he may not give the same weight to the opinion of a nonmedical, or lay,
state agency evaluator. Williams v. Astrue, 4:11CV00057 AGF, 2012 WL 946806, at
*9 (E.D. Mo. Mar. 20, 2012). Reliance on the opinion of nonmedical state evaluator
will not, without more, provide substantial evidence in support of an RFC. See, e.g.,
Dewey v. Astrue, 509 F.3d 447, 449–50 (8th Cir. 2007). Social Security Ruling (SSR)
96-6p, 1996 WL 374180 (July 2, 1996), which the ALJ cited, addresses the weight to
be accorded to agency medical sources. The citation supports an inference that the
ALJ weighed the opinion of a layperson under the rules appropriate for weighing a
medical opinion, which constitutes legal error. Id. at 449.

9

Defendant argues that the ALJ was “most likely” referring to the opinion of
agency medical consultant Marsha Toll, Psy.D., who is an acceptable medical source.
However, the exhibit cited by the ALJ is the PFRCA completed by an agency nonmedical
source.
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Defendant argues that the error is harmless because the PRFCA is consistent
with the medical record. The only medical assessment of plaintiff’s limitations are
found in the report of the consultative examiner, Dr. London.10 He noted that plaintiff
had limited flexion and extension of her back and demonstrated positive straight leg
raising bilaterally.

She favored her right leg when she walked and had some

hypesthesia and reduced strength in that leg compared to her left. In addition, Dr.
London observed that plaintiff got on and off the examining table “with difficulty” (Tr.
389), a sentence the ALJ misread.

See Tr. 87 (“She could get on and off the

examination table without difficulty.” (emphasis added). These observations, which
were made after the completion of the PRFCA, are relevant to the RFC determination
that plaintiff retained the capacity to meet the requirements for light work.
Furthermore, these observations are entitled to the greater weight accorded to a
medical opinion.
In reaching his RFC determination, the ALJ gave improper weight to the opinion
of a nonmedical source and misread the report of the consultative examiner. The
Court cannot say that these were harmless errors and thus the matter must be
remanded for further assessment of plaintiff’s RFC. In the event that it is determined
that plaintiff does not retain the RFC to return to her past relevant work, it will be
necessary to obtain testimony from a vocational expert based on a properly formulated
hypothetical.

10

Dr. London opined that plaintiff’s low back pain could possibly be due to
degenerative joint or disc disease, while the pain in her right leg could be due to
effusion or fascial muscle tearing. The Court notes that Dr. London did not have
access to plaintiff’s medical records and there is no indication that he was informed
that she has neurofibromatosis, which undermines the utility of these diagnoses.
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VI. Conclusion
For the reasons discussed above, the Court finds that the Commissioner’s
decision is not supported by substantial evidence in the record as a whole.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is reversed
and this matter is remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g)
for further proceedings.
A separate Judgment in accordance with this Memorandum and Order will be
entered this same date.
___________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 6th day of August, 2012.

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