Garrison v. Social Security Administration

Filing 18

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED, and this cause is REMANDED to the Commissioner for proceedings consistent with this opinion. Signed by Magistrate Judge Frederick R. Buckles on 9/21/2012. (NCL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DARLA P. GARRISON,

)
)
Plaintiff,
)
)
v.
)
)
MICHAEL J. ASTRUE, Commissioner )
of Social Security,
)
)
Defendant.
)

Case No. 4:11CV1503 FRB

MEMORANDUM AND ORDER
This matter is on appeal from an adverse ruling by the
Commissioner of Social Security.

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 Background

Plaintiff Darla P. Garrison (“plaintiff”) applied for
Disability Insurance Benefits (“DIB”) under Title II of the Social
Security Act (“Act”), alleging that she became unable to work due
to disability on May 25, 2005.

(Administrative Transcript (“Tr.”)

112-19). After her application was denied, she requested a hearing
before an administrative law judge (“ALJ”) which was held on
February 4, 2010.

(Tr. 8-27).

On March 19, 2010, the ALJ issued

a decision in which she determined that plaintiff was not disabled
under the Act.

(Tr. 30-39).

Plaintiff sought review from defendant agency’s Appeals
Council, which denied her request for review on July 27, 2011.

-1-

(Tr. 1-4).

The ALJ’s decision thus stands as the Commissioner’s

final decision under 42 U.S.C. § 405(g).
II.
A.

Evidence Before The ALJ

Plaintiff’s Testimony
Plaintiff, age 37 at the time of the administrative

hearing,

testified

that

she

Certified Nurse’s Assistant.
rehabilitation in 2006.

had

a

G.E.D.

(Tr. 11).

(Tr. 12).

and

training

as

a

She attended vocational

Plaintiff testified that she

became disabled on May 25, 2005 following an accident at work.
(Tr. 15).

Plaintiff described the accident as follows: “I had

twisted, immediately had severe pain shooting down my leg, could
hardly walk, and reported it, basically, after that and went to the
doctor.”

(Id.)

Plaintiff reported the accident to her employer,

and her employer referred her for medical treatment that included
diagnostic testing.
underwent

(Tr. 16).

conservative

Plaintiff testified that she

treatment

including

physical

therapy,

manipulation, and stimulation, and ultimately underwent surgery in
July of 2005.

(Id.)

Following surgery, plaintiff had symptoms in her legs,
and was referred to a physician who performed facet injections, but
the injections did not help.
referred to
injections

(Tr. 17).

Plaintiff was then

a pain management specialist who also performed
including

hip

injections.

(Tr.

18).

Plaintiff

testified that the hip joint injections helped at the time, but
that her back pain never went away.

(Id.)

Plaintiff testified

that she tried to return to work in September of 2005, but left
-2-

after two days due to pain in her legs.

(Id.)

Plaintiff testified

that she has had additional injections in her back and knee joints,
and also underwent “smart lipo” on her stomach to remove weight
from her stomach in an effort to alleviate her back pain, but this
did not help.

(Tr. 19).

Plaintiff
compensation
approximately

case,

testified

that

which

resolved

$126,000.00

was
in

April

she

or

filed
via

March

a

a

workman’s

settlement

of

2007.

of

(Id.)

Plaintiff testified that, since the resolution of her workers’
compensation case, she has been undergoing treatment from a doctor
named Dr. Khattak.

(Tr. 20).

She testified that she has constant pain down the back of
her spine and that, when she sat straight up, the pain shoots down
her left leg “and then it’ll go from the knees straight down to the
bone.”

(Tr. 21).

and tingly.”

(Id.)

Plaintiff also stated that her feet were “numb
She testified that, on a monthly or bi-monthly

basis, she had “periodic pain episodes” or “flare ups” that were
triggered by twisting, turning the wrong way, or straining, and
which resulted in her being unable to do anything.

(Tr. 21-22).

Plaintiff testified that these episodes lasted for about two weeks,
and that she could be in bed for that long.

(Tr. 22).

Plaintiff testified that, when sitting, she turned her
body in order to keep her weight off her back.

(Tr. 23).

stated that she needed to recline with her legs elevated.

She
(Id.)

She testified that she had been told that her present condition was
as good as she was going to get.
-3-

(Id.)

She stated that she was

able to do some housework for ten to fifteen minutes at a time, and
could “do little things and then recline, get off my back.”
23-24).

(Tr.

She explained that she could dust as long as she did not

have to reach or bend, and could fold clothes as long as she could
stop and recline to get off her back.

(Id.)

She did not drive

unless she “absolutely would have to, emergency-wise.”

(Tr. 24).

The ALJ asked plaintiff when she last drove, and she responded “[a]
couple of months ago.”

(Id.)

The ALJ asked plaintiff how that

went, and plaintiff responded “I mean, I do it if I have to, like
if my daughter has to be picked up from school, or for being sick
or something.
stand it.”

It - - I don’t go a far distance, because I can’t

(Id.)

Plaintiff explained that sitting straight up in

a car and using her feet caused strain and symptoms of pain
shooting down her leg and down her tail bone, and “numbness and
coldness” in her feet.

(Id.)

Plaintiff testified that she slept in a recliner because
she could not lay flat, and woke frequently during the night.
24-25).

She testified that she could not participate in her

children’s
sitting.

school
(Tr. 25).

activities

because

she

could

not

tolerate

She did not go to movies or restaurants, but

she did watch television and read.
B.

(Tr.

(Tr. 26).

Medical Evidence
Records from Saint Louis Spine Care Alliance (the office

of David S. Raskas, M.D. and Patricia A. Hurford, M.D., M.S.)
indicate that plaintiff saw Dr. Hurford on May 24, 2005 for back
and leg complaints following a back injury at work.
-4-

(Tr. 373).

On

that date, psychiatric evaluation was negative for depression.
(Tr. 374).
Records from Missouri Baptist Medical Center indicate
that

CT

scan

performed

on

June

3,

2005,

revealed

diffuse

degenerative disk disease at L5-S1, and a radial tear in the L4-5
disk with central and left lateral disk protrusion.

(Tr. 361).

On

July 2, 2005, Dr. Raskas performed an L4-5, L5-S1 diskectomy with
decompression and fusion.
On

July

29,

(Tr. 362-72).
2005,

plaintiff

saw

Dr.

Raskas

with

complaints of leg pain the same as before surgery, but stated that
her back felt better than before surgery.
showed a healing lumbar spine fusion.

(Tr. 380).

(Tr. 381).

X-rays

She returned on

September 2, 2005 and stated that she felt a lot better than before
surgery, but still had pain in her lower legs and back going into
her buttocks, and also felt depressed.

(Tr. 383).

Dr. Raskas

increased plaintiff’s Prozac dosage and advised her to wean off her
opiate-based pain medication. (Id.) Dr. Raskas released plaintiff
to return to sedentary-type office work, and advised plaintiff to
increase her activity level.

(Id.)

On October 3, 2005, plaintiff returned to Dr. Raskas and
reported that she was miserable with back and leg pain.

(Tr. 388).

Dr. Raskas noted that he had reviewed the results of plaintiff’s
discogram and that she only had positive responses at L4-5 and L5S1.

(Id.)

had

chronic

Dr. Raskas wrote that he was unsure whether plaintiff
pain

behavior

problems

or

whether

there

was

a

structural abnormality, and ordered a myelogram, CAT scan and MRI
-5-

and instructed plaintiff to remain off work.

(Id.)

She returned

on October 14, 2005, and Dr. Raskas noted that the results of
plaintiff’s testing showed the L3-L4 disk to be completely normal,
with no evidence of any neurologic compression.

(Tr. 392).

Dr.

Raskas wrote that he was “at a loss to explain why she initially
was doing well after surgery and then now, since just going to back
to work, [sic] is doing much worse.”

Dr. Raskas noted that

(Id.)

neurovascular examination was intact, but that plaintiff was quite
tearful during the examination and felt stressed overall.
He referred plaintiff for a second opinion.

(Id.)

(Id.)

Plaintiff

returned to Dr. Hurford on October 20, 2005 and October 26, 2005
for injections.

(Tr. 393-95).

On November 8, 2005, plaintiff was seen at PremierCare by
Ravi

V.

Shitut,

M.D.,

with

complaints

of

low

back

pain

and

bilateral lower extremity symptoms, left side worse than right.
(Tr. 345).

She reported being injured at work, and also reported

trying to return to work but being unable to due to pain.

(Tr.

346-47). Upon examination, plaintiff’s cervical and thoracic spine
were straight with normal range of motion.

(Tr. 346).

Plaintiff

walked with a normal gait and could walk on her toes and heels.
(Id.)

Her back was stiff and hip motion caused pain, but straight-

leg raise testing was negative bilaterally.

(Tr. 347).

Plaintiff

had some numbness in her right big toe but normal reflexes, and
there was no atrophy.
“minimally overweight.”

(Id.)

Dr. Shitut described plaintiff as

(Tr. 346).

Dr. Shitut noted that plaintiff’s post-operative x-rays
-6-

were satisfactory, her surgical fusion appeared satisfactory, that
there was no significant pathology at the L3-L4 level, and that
additional surgery was not recommended.

(Tr. 347).

recommended rehabilitation and pain control.

Dr. Shitut

(Tr. 347-48).

Plaintiff returned to Dr. Hurford on November 14, 2005
with complaints of pain in her back and leg, and noted that the
facet injections had not helped at all.

(Tr. 396).

Dr. Hurford

noted that plaintiff’s fusion looked very good, and that plaintiff
was likely developing a solid fusion.

She recommended that

(Id.)

plaintiff begin physical therapy, remain off work, and return in
five weeks.

(Id.)

Records from Pain Prevention & Rehabilitation Center
indicate that plaintiff was seen on November 30, 2005 by Manish
Suthar, M.D.

(Tr. 349).

Plaintiff reported bilateral low back

pain and bilateral lower extremity pain that began in September of
2004.

(Id.)

bilateral

Plaintiff described her pain as a burning pain in her

lower

back,

and

stabbing

buttocks and hips down her left thigh.

pain

in

(Id.)

her

tailbone

and

She also described

achy pain in front of her left calf and achy pain in her bilateral
feet.

(Id.)

She rated her pain as seven on a scale of one to ten,

and stated that it was aggravated by sitting, standing, activity,
exercise, and cold.
(Id.)

(Tr. 349).

She was taking no medications.

Upon examination, Dr. Suthar noted that plaintiff appeared

to be in a mild to moderate degree of pain, and was tearful and
frustrated.

(Tr. 350).

Dr. Suthar noted there was no real

indication of symptom magnification.
-7-

(Id.)

Straight leg raise

testing was negative.

(Id.)

Dr. Suthar diagnosed chronic pain

syndrome with major depression as a contributing factor, and hip
joint bursitis.

(Id.)

Dr. Suthar wrote that it was important for

plaintiff to “begin some form of regular exercising” every day such
as water exercise for 30 to 45 minutes.

(Tr. 350).

He prescribed

Norco, Elavil, and Cymbalta, and advised plaintiff to return for
hip injections.

(Tr. 351).

Dr. Suthar wrote “I do feel that she

can do a sedentary to light form of work.”

(Id.)

Plaintiff returned to Dr. Suthar on December 1, 2005 to
undergo hip injection.

(Tr. 352).

She returned on December 29,

2005 for a follow-up visit, and it was noted that she was “doing
remarkably better.”

(Tr. 356).

She had followed Dr. Suthar’s

recommendation to do water exercise, and Dr. Suthar noted that
during “[h]er last few trips to the YMCA she was able to exercise
for a full hour which is a vast improvement.”

(Id.)

Plaintiff

reported no new complaints, and stated that she was extremely
pleased with the results of her hip injections but that the effects
were starting to wear off.

(Id.)

Dr. Suthar changed plaintiff’s

medications in order to reduce her opioid usage, and ordered a more
advanced

acquatic

fitness

exercise

class,

plaintiff’s work status should remain the same.

and

stated

that

(Id.)

On January 4, 2006, plaintiff returned to Dr. Suthar and
reported a significant amount of lower back pain that had worsened
since her last visit, and epidural injection was performed.
357).

(Tr.

Dr. Suthar noted that the reduction in plaintiff’s opioid

usage may account for her increased pain.
-8-

(Id.)

Plaintiff

returned on January 30, 2006 and reported that she was doing
remarkably well.

(Tr. 358).

Dr. Suthar wrote that he was very

pleased with all of plaintiff’s efforts to help herself get better,
noting that she was walking regularly for at least 30 minutes per
day and was performing water exercise on a daily basis.

(Id.)

He

wrote that plaintiff had become more active and had developed more
endurance and stamina.

(Id.)

Dr. Suthar wrote that he was

releasing plaintiff on a light duty level of work, and wrote that,
as plaintiff got stronger and more physically fit she would be able
to do even more physical activity.

(Id.)

Dr. Suthar wrote that he

understood that plaintiff would probably not return to her former
job, and that plaintiff anticipated looking for work that fell into
a more sedentary or light category of work.

(Tr. 358).

On January 30, 2006 plaintiff returned to Dr. Raskas and
reported that she was doing pretty well and making good progress;
that she had started to exercise independently, and had joined the
YMCA. (Tr. 400). Neurologic examination was within normal limits.
(Id.)

X-ray revealed a probable solid fusion at L4-S1.

(Tr. 401).

Dr. Raskas noted that plaintiff was still treating with Dr. Suthar,
and that there was “still some room to be made on weaning her off
the pain medicine with Dr. Suthar.”

(Tr. 400).

Dr. Raskas

released plaintiff to return to work with a 30-pound lifting
restriction, and wrote that this was “probably somewhere near her
permanent restrictions.”

(Id.)

On June 21, 2006, plaintiff underwent an independent
medical evaluation with Shawn L. Berkin, D.O.
-9-

(Tr. 404-12).

Dr.

Berkin noted that plaintiff sustained two on-the-job injuries to
her lower back.

(Tr. 405).

Plaintiff complained of pain and

tenderness to her lower back which she rated as an eight or nine on
a scale of one to ten when her pain medication wore off.
407).

(Tr.

Plaintiff was tearful when describing her symptoms, and

stated that, if she did a little bit of activity at home, she will
feel it later.

(Id.)

She complained of tightness and muscle

spasms to her lower back, she reported pain extending into her left
leg and pain in her joints when getting out of bed, and she stated
that she could not lift or carry her children.

(Id.)

Plaintiff

stated that she felt depressed, and that she could not sit for
longer than one hour.

(Id.)

Upon examination, plaintiff walked

normally but was tender in her lower back with muscle spasm over
the paralumbar muscles.

(Tr. 408).

tone, and normal reflexes.

She had normal muscle bulk and

(Tr. 408-09).

testing was positive at 60 degrees.

Straight leg raise

(Tr. 408).

Dr. Berkin opined that plaintiff should not return to her
prior employment, but that plaintiff should pursue employment at a
sedentary work demand level.

(Tr. 411).

Dr. Berkin opined that

plaintiff should participate in a home exercise program and should
avoid excessive squatting, stooping, turning, twisting, lifting,
and climbing, and should avoid walking and standing for extended
periods of time.

(Id.)

Dr. Berkin opined that, if plaintiff was

required to sit, “she should be allowed to stand, stretch and move
about on an hourly basis in order to minimize her lower back
symptoms.”

(Id.)

Dr. Berkin imposed a 15 to 20-pound lifting
-10-

restriction from the floor to the waist as a single event, and a
ten-pound lifting restriction from the waist to the level of the
shoulder.

(Tr. 412).

mechanics

when

He opined that she should employ proper body

lifting,

and

use

appropriate

measures

when

performing activities involving the back. (Id.) Dr. Berkin opined
that if plaintiff was required to perform even minimal exertion for
an extended period of time, she should be permitted frequent
breaks.

(Id.)
MRI of plaintiff’s left knee, performed on September 7,

2006 at Jefferson Memorial Hospital, showed degeneration of the
medial and lateral meniscus and degeneration of the cartilage under
the kneecap.

(Tr. 306).

Records from Hafiz Khattak, M.D., indicate that plaintiff
was seen on several occasions from September 7, 2006 through
October 16, 2008 for pain management.

(Tr. 309-25).

When she

presented for treatment, she characterized her pain as ranging from
moderate to severe.

(Id.)

The record indicates that plaintiff sought treatment
from Brij R. Vaid, M.D. for complaints including chronic back pain,
knee pain and ADD from July 26, 2006 to April 2, 2008.
241).

(Tr. 181-

Dr. Vaid’s records indicate that plaintiff was prescribed

prescription pain medication and medications for depression. (Id.)
X-ray of plaintiff’s left knee, performed on August 14,
2006 at Jefferson Memorial Hospital, revealed soft tissue swelling
and joint effusion.
performed

on

(Tr. 248).

September

7,

An MRI of plaintiff’s left knee,
2006,

-11-

revealed

joint

effusion,

degeneration of the medial and lateral meniscus, and degeneration
of the cartilage behind the kneecap.

(Tr. 247).

On November 26, 2007, Gurpreet Padda, M.D. performed a
procedure

to

insert

an

intrathecal

pump,

a

administer pain medication directly to the spine.

device

used

to

(Tr. 268).

It

is indicated that this pump was to be used on a trial basis.
Records

from

the

Center

For

Interventional

Management show that plaintiff was seen for pain

(Id.)
Pain

management,

including nerve block therapy, from July 26, 2006 to July 2, 2008
by Dr. Padda.

(Tr. 249-304).

MRI of plaintiff’s lumbar spine performed on June 12,
2008 revealed mild disc bulging at L3-4 with no stenosis, and postoperative changes at L4 to S1 with no evidence of disc protrusion
or stenosis.

(Tr. 307-08).

Right knee x-ray performed on July 2,

2008 revealed mild posterior angulation at the femoral/tibial
articulations but no other abnormalities.

(Tr. 244).

On November 12, 2008, Medical Consultant Amy Blattel
completed a Physical Residual Functional Capacity Assessment form.
(Tr. 326-31). Ms. Blattel opined that plaintiff could occasionally
lift and carry ten pounds and frequently lift less than ten; could
stand and/or walk for at least two hours in an eight-hour workday
and sit for six; and could push and/or pull without limitation.
(Tr. 327).

She opined that plaintiff should only occasionally

kneel but could frequently perform all other postural maneuvers,
and that plaintiff had no manipulative, visual, communicative or
environmental limitations.

(Tr. 329-30).
-12-

Records from Dr. Khattak indicate that plaintiff was seen
on several occasions from November 11, 2008 to August 20, 2009 for
pain management.

(Tr. 332-44).

Plaintiff consistently rated her

pain as a two or three, and on one occasion a four, on a scale of
one

to

ten,

and

Dr.

Khattak

repeatedly

noted

normal

musculoskeletal, neurologic, and psychiatric examinations.

(Id.)

Records from Saint Louis Internal Medicine indicate that
plaintiff presented for treatment on July 10, 2009 and August 10,
2009.

(Tr. 413-28).

Plaintiff reported that her back pain was

controlled by medications.
continue her medications.

(Tr. 420).

She was instructed to

(Tr. 418).

Records from Dr. Khattak indicate that plaintiff was seen
for pain management on September 15, 2009, November 5, 2009, and
November 15, 2009.

(Tr. 429-30; 431-32; 433-34).

Plaintiff

characterized her back pain as moderate, corresponding to a three
on a scale of one to ten.

(Tr. 430, 432, 434).

Musculoskeletal,

neurologic, and psychological examination were normal.
431, 433).

(Tr. 429,

Dr. Khattak diagnosed plaintiff with chronic low back

pain and refilled her medications.

(Id.)

On November 24, 2009, plaintiff saw Dr. Khattak with
complaints of lower back pain which she characterized as a three to
four, and which she described as sharp, dull, and aching, with
radicular symptoms down both legs.

(Tr. 435).

Musculoskeletal,

neurologic and psychiatric examination were negative.

(Tr. 436).

On February 2, 2010, Dr. Khattak completed a Physical
Residual Functional Capacity Questionnaire.
-13-

(Tr. 438-42).

Dr.

Khattak

wrote

that

plaintiff

had

spondylitis, and failed back syndrome.

chronic

low

(Tr. 438).

back

pain,

He noted that

plaintiff had periodic pain episodes, flare-ups, general fatigue,
and radiating pain.

(Id.)

Dr. Khattak opined that emotional

factors played no role in her symptoms.

He opined that

(Id.)

plaintiff could sit, stand, and/or walk less than two hours in an
eight-hour workday, and needed a position that allowed shifting
positions from sitting to standing to walking.

(Tr. 439-40).

He

opined that plaintiff needed to include periods of walking around
during an eight-hour day.

(Tr. 440).

Dr. Khattak opined that

plaintiff would need more than ten breaks of ten to twenty minute
duration per day.

(Id.)

Dr. Khattak opined that plaintiff could

occasionally lift and carry ten
stoop/bend, or climb ladders.

pounds but should never twist,
(Tr. 440-41).

He opined that

plaintiff could rarely crouch/squat or climb stairs.

(Tr. 441).

Dr. Khattak opined that plaintiff’s impairments would probably
cause her to be absent from work more than four days per month.
(Id.)
III.

The ALJ’s Decision

The ALJ in this case determined that plaintiff had the
severe impairments of degenerative disc disease of the lumbar spine
with the residuals of surgery, but that she did not have an
impairment,
severity.

or

combination

(Tr. 35).

of

impairments,

of

listing-level

The ALJ determined that plaintiff had the

residual functional capacity (also “RFC”) to perform the full range

-14-

of sedentary work as defined in 20 C.F.R. § 404.1567(a).1

(Id.)

The ALJ determined that plaintiff could perform her past work as a
medical office receptionist.

(Tr. 39).

The ALJ concluded that

plaintiff was not under a disability as defined in the Act at any
time through the date of the decision.

IV.
The

Social

Discussion

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.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). An individual
will

be

declared

disabled

“only

if

[her]

physical

or

mental

impairment or impairments are of such severity that [she] is not
only unable to do [her] previous work but cannot, considering [her]
age, education, and work experience, engage in any other kind of

1

Sedentary work is defined as follows:
Sedentary work involves lifting no more than
10 pounds at a time and occasionally lifting
or carrying articles like docket files,
ledgers, and small tools. Although a sedentary
job is defined as one which involves sitting,
a certain amount of walking and standing is
often necessary in carrying out job duties.
Jobs are sedentary if walking and standing are
required occasionally and other sedentary
criteria are met.
20 C.F.R. § 404.1567(a).
-15-

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.

the

See 20

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

Commissioner

presently

engaged

begins
in

by

deciding

substantial

disability benefits are denied.

whether

gainful

the

claimant

activity.

If

is
so,

Next, the Commissioner decides

whether the claimant has a “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 the claimant’s impairment(s) meet or equal any listed in 20
C.F.R., Subpart P, Appendix 1.

If claimant’s impairment(s) is

equivalent to a listed impairment, she is conclusively disabled.
At

the

fourth

step,

the

Commissioner

determines

claimant can perform her past relevant work.

whether

the

If so, the claimant

is not disabled.
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 adequate to support the conclusion.
Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001).
evidence

is

substantial,

this

Court

-16-

Johnson v.

To determine whether

considers

“evidence

that

detracts from the Commissioner’s decision as well as evidence that
supports it.”
2000).

McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir.

This Court is not permitted to reverse “merely because

substantial evidence also exists that would support a contrary
outcome, or because we would have decided the case differently.
Jones ex rel. Morris v. Barnhart, 315 F.3d 974, 977 (8th Cir. 2003)
(quoting Davis v. Apfel, 239 F.3d 962, 966 (8th Cir.

2001)); see

also Weikert v. Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992)
(internal quotation marks and citation omitted) (“if 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”).
In the case at bar, plaintiff challenges the ALJ’s RFC
findings, and also contends that the ALJ improperly determined that
plaintiff

could

return

to

her

past

work.

In

response,

the

Commissioner contends that the ALJ’s decision is supported by
substantial evidence on the record as a whole.
A.

Credibility Determination
In the case at bar, the ALJ wrote that he had considered

plaintiff’s subjective complaints of symptoms precluding all work
in accordance with 20 C.F.R. § 404.1529 and Polaski.

The ALJ then

noted several inconsistencies in the record, including plaintiff’s
daily activities, which detracted from the credibility of her
subjective complaints. Plaintiff contends that the ALJ improperly
considered her daily activities.

Review of the record reveals no

error.
-17-

Before determining the claimant’s residual functional
capacity, the ALJ must evaluate the credibility of the claimant’s
subjective complaints.
Cir.

2007)

(citing

Wagner v. Astrue, 499 F.3d 842, 851 (8th

Pearsall,

274

F.3d

at

1217.)

Testimony

regarding pain is necessarily subjective in nature, as it is the
claimant’s own perception of the effects of her alleged physical
impairment.

Halpin v. Shalala, 999 F.2d 342, 346 (8th Cir.

1993).

Because of the subjective nature of physical symptoms, and the
absence of any reliable technique for their measurement, it is
difficult to prove, disprove or quantify their existence and/or
overall effect.

Polaski at 1321-22.

In Polaski, the Eighth

Circuit addressed this difficulty and established the following
standard for the evaluation of subjective complaints:
The absence of an objective medical basis
which supports the degree of severity of
subjective complaints alleged is just one
factor to be considered in evaluating the
credibility of the testimony and complaints.
The adjudicator must give full consideration
to all of the evidence presented relating to
subjective
complaints,
including
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; (5) functional restrictions.
Id. at 1322.
Although the ALJ is not free to accept or reject the
claimant’s subjective complaints based upon personal observations
alone, he may discount such complaints if there are inconsistencies

-18-

in the evidence as a whole.

Id.

The “crucial question” is not

whether the claimant experiences symptoms, but whether her credible
subjective complaints prevent her from working. Gregg v. Barnhart,
354 F.3d 710, 713-14 (8th Cir. 2003).

When an ALJ considers the

Polaski factors and discredits a claimant’s complaints for a good
reason, that decision should be upheld.
958,

962

(8th

Cir.

2001).

The

Hogan v. Apfel, 239 F.3d

credibility

of

a

claimant’s

subjective testimony is primarily for the ALJ, not the courts, to
decide, and the court considers with deference the ALJ’s decision
Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir.

on the subject.
2005).

Plaintiff contends that the ALJ improperly considered her
daily

activities

as

detracting

subjective allegations.

from

the

credibility

of

her

As the Eighth Circuit has recognized,

there are some “mixed signals” regarding the significance of a
claimant’s daily activities in evaluating claims of disabling pain.
Clevenger v. Social Sec. Admin., 567 F.3d 971, 976 (8th Cir. 2009).
However, it is well-settled that an ALJ may properly consider daily
activities

as

one

factor

in

evaluating

claimant’s subjective complaints.
696 (8th Cir. 2007).

the

credibility

of

a

Casey v. Astrue, 503 F.3d 687,

This is what the ALJ did in this case: she

considered plaintiff’s daily activities as one factor in evaluating
her claims of pain and other symptoms precluding all work.
In assessing plaintiff’s credibility, the ALJ in this
case noted plaintiff’s fusion surgery and post-surgical care.

The

ALJ

and

noted

that,

when

plaintiff

was

-19-

evaluated

in

October

November of 2005, her post-surgical radiological reports revealed
a satisfactory surgical fusion with no significant pathology at L34; a myelogram revealed no hardware failure; straight-leg raise
testing was negative; and she had no motor or sensory deficits of
the lower extremities. The ALJ also noted that, when plaintiff was
evaluated in 2006, x-rays showed a solid fusion.

The ALJ also

noted that x-rays of plaintiff’s knees showed only mild posterior
directed angulation at the femoral tibial articulations on the
lateral view with weight bearing on each knee, and no other
abnormalities.

The ALJ also noted that plaintiff’s 2008 MRI

revealed little more than mild disc bulging at L3-4.
lack

of

objective

medical

evidence

to

support

subjective complaints is not dispositive,

the

While the
degree

of

it is an important

factor, and an ALJ is entitled to consider the fact that the
objective medical evidence fails to support the degree of alleged
limitations.

20 C.F.R. § 404.1529(c)(2); Kisling v. Chater, 105

F.3d 1255, 1257-58 (8th Cir. 1997); Cruse v. Bowen, 867 F.2d 1183,
1186 (8th Cir. 1989)(the lack of objective medical evidence to
support the degree of severity of alleged pain is a factor to be
considered); Johnson v. Chater, 87 F.3d 1015, 1017-18 (8th Cir.
1996) (it is proper for an ALJ to consider the lack of reliable
medical opinions to support a claimant’s allegations of a totally
disabling condition).
The ALJ also noted that progress notes from 2010 showed
that pain medication was controlling plaintiff’s back pain, and
that the record failed to demonstrate that plaintiff’s medications
-20-

caused

intolerable

side

effects.

If

an

impairment

can

be

controlled with medication, it cannot be considered disabling.
Patrick v. Barnhart, 323 F.3d 592, 596 (8th Cir.2003) (holding if
an impairment can be controlled by treatment or medication, it
cannot be considered disabling).
The ALJ also noted that Drs. Shitut, Suthar, Raskas,
Berkin, Khattak and Padda all opined that plaintiff could return to
some

type

of

restrictions.

light
The

or

sedentary

fact

that

type

these

of

work

treating

with
and

certain

examining

physicians opined that plaintiff could perform some work activity
detracts from plaintiff’s allegations that her pain and other
symptoms preclude all work activity.

Raney v. Barnhart, 396 F.3d

1007, 1010-11 (8th Cir. 2005); see also Edwards v. Secretary of
Health and Human Service, 809 F.2d 506, 508 (8th Cir. 1987);
Fitzsimmons, 647 F.2d at 863.
The ALJ noted that, when plaintiff sought pain management
treatment in 2009, she characterized her pain as a three on a oneto-ten scale, with ten being the most severe.

This is consistent

with

record

the

record.

As

noted

above,

the

repeatedly

demonstrates that plaintiff characterized her pain as a two or
three, and occasionally a four, on a one-to-ten scale when she
presented for pain management treatment with Dr. Khattak in 2008
and 2009.

In addition, the record fails to document that plaintiff

told her treating or evaluating physicians that she had to turn her
body while sitting to alleviate pressure on her spine, had to sit
in

a

reclining

position,

and

that

-21-

her

daily

activities

were

restricted to the same severe extent she described during the
administrative

hearing.

The

ALJ

also

noted

that

some

of

plaintiff’s statements in her Function Report were inconsistent
with her hearing testimony.

The ALJ noted that, while plaintiff

testified that she had not driven in the past month and did not
drive unless it was an emergency, she reported in her Function
Report that she drove every third day if she had to.

The ALJ also

noted that, despite plaintiff’s hearing testimony that she spent
more than half of each day with her legs elevated, she reported in
her Function Report that she watched her four-year-old child one
out of every three days, went shopping every third day, read and
watched

television,

prepared

easy

meals,

dusted,

and

folded

clothes. The evidence in the record indicating that plaintiff
characterized her symptoms and limitations in an inconsistent
manner is one factor that detracts from her subjective allegations
Ply v. Massanari, 251 F.3d

that she is disabled from all work.

777, 779 (8th Cir. 2001) (an ALJ is entitled to consider

a

claimant’s inconsistent statements in determining his credibility);
see also Choate v. Barnhart, 457 F.3d 865, 871 (8th Cir.

2006)

(ALJ properly discredited the plaintiff’s testimony regarding selflimitation

of

physical

activities

when

such

limitations

were

inconsistent with the medical records).
The ALJ also observed that plaintiff did not seem highly
motivated to attempt to return to work.

Evidence indicating a lack

of motivation to work may be used as a credibility factor so long
as it is not a dispositive one.

See Ramirez v. Barnhart, 292 F.3d
-22-

576, 581 n. 4 (8th Cir. 2002).
A review of the ALJ’s credibility determination shows
that she evaluated plaintiff’s credibility in a manner consistent
with the requirements of Polaski v. Heckler.

The ALJ did not, as

plaintiff

allegations

contends,

discredit

plaintiff’s

simply

because of her ability to perform light daily activities. Instead,
the ALJ considered plaintiff’s subjective complaints on the basis
of

the

entire

inconsistencies

record
that,

before

her,

considered

on

and

set

the

record

detracted from plaintiff’s credibility.

forth
as

numerous
a

whole,

An ALJ may disbelieve

subjective complaints where there are inconsistencies on the record
as a whole.
1990).

Battles v. Sullivan, 902 F.2d 657, 660 (8th Cir.

The ALJ wrote that she was not implying that plaintiff had

no pain, but was instead determining whether plaintiff’s pain
reached a level that rendered her unable to work.

“While pain may

be disabling if it precludes a claimant from engaging in any form
of substantial gainful activity, the mere fact that working may
cause pain or discomfort does not mandate a finding of disability.”
Perkins v. Astrue, 648 F.3d 892, 900 (8th Cir. 2011) (quoting Jones
v. Chater, 86 F.3d 823, 826 (8th Cir. 1996)); see also Gregg, 354
F.3d at 713-14 (the “crucial question” is not whether the claimant
experiences

symptoms,

but

whether

her

credible

subjective

complaints prevent her from working).

Because the ALJ considered

the

reasons

Polaski

factors

and

gave

good

for

discrediting

plaintiff’s subjective complaints, that decision should be upheld.
Hogan, 239 F.3d at 962.
-23-

B.

Residual Functional Capacity Assessment
The ALJ in this case determined that plaintiff retained

the RFC to perform the full range of sedentary work.

Plaintiff

challenges this determination, arguing that it is not supported by
“some medical evidence” as required under the standards of the
Eighth Circuit’s decisions in Lauer v. Apfel, 245 F.3d 700 (8th
Cir. 2001) and Singh v. Apfel, 222 F.3d 448 (8th Cir. 2000), and
that the ALJ failed to articulate a legally sufficient rationale
for the weight assigned to Dr. Khattak’s opinion.

Review of the

ALJ’s decision reveals no error.
Residual functional capacity is defined as that which a
person remains able to do despite her limitations.
404.1545(a), Lauer, 245 F.3d at 703.

20 C.F.R. §

The ALJ must assess a

claimant’s RFC based upon all relevant, credible evidence in the
record, including medical records, the observations of treating
physicians and others, and the claimant’s own description of her
symptoms and limitations.

20 C.F.R. § 404.1545(a); Anderson v.

Shalala, 51 F.3d 777, 779 (8th Cir. 1995); Goff, 421 F.3d at 793.
A claimant’s RFC is a medical question, and there must be
some medical evidence, along with other relevant, credible evidence
in the record, to support the ALJ’s RFC determination.

Hutsell v.

Massanari, 259 F.3d 707, 711-12 (8th Cir. 2001); Lauer, 245 F.3d at
703-04; McKinney, 228 F.3d at 863.

An ALJ’s RFC assessment which

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

Hutsell, 259 F.3d at 712.

However,

although an ALJ must determine the claimant’s RFC based upon all
-24-

relevant evidence, the ALJ is not required to produce evidence and
affirmatively prove that a claimant can lift a certain weight or
walk a certain distance.

Pearsall, 274 F.3d at 1217 (8th Cir.

2001); McKinney, 228 F.3d at 863.
establishing her RFC.

The claimant bears the burden of

Goff, 421 F.3d at 790.

Plaintiff’s argument that the ALJ’s RFC determination is
in error because it is unsupported by “some medical evidence” is
unfounded.

An ALJ is required to base her residual functional

capacity assessment upon all of the relevant evidence of record,
not solely upon medical evidence.
McKinney, 228 F.3d at 863.

20 C.F.R. § 404.1545; see also

In this case, the ALJ considered and

discussed all of the evidence of record.

The ALJ noted that the

record demonstrated that plaintiff underwent back surgery in 2005
and improved after surgery, and that objective medical testing
revealed

that

the

surgery

produced

a

solid

fusion

and

that

plaintiff had only mild disc bulging at L3-4 without stenosis. The
ALJ noted that x-rays of plaintiff’s knees revealed only mild
findings.

The ALJ noted that when plaintiff presented for follow-

up treatment, she often described her symptoms as mild to moderate,
and reported that her pain was managed with medication.

The ALJ

considered and discussed the findings and opinions from plaintiff’s
treating

and

examining

physicians

who

specifically

addressed

plaintiff’s ability to function in the workplace, and who opined
that

plaintiff

remained

able

sedentary to light capacity.

to

work

in

what

While plaintiff’s

they

called

a

physicians were

most likely not considering the Commissioner’s definitions of
-25-

“sedentary” and “light” work activity when using those terms in
their opinions, it is significant that they consistently opined
that plaintiff remained able to perform work-related activities.
The ALJ noted that Dr. Berkin opined that plaintiff needed to limit
her lifting to 10 to 20 pounds; that Dr. Padda opined that
plaintiff could not work beyond the sedentary level but that she
had not yet reached maximum medical improvement; that Dr. Suthar
opined that plaintiff could work in capacities ranging from light
to sedentary; and that Dr. Raskas opined plaintiff could return to
work with a 30-pound lifting restriction.

Dr. Berkin opined that

plaintiff only needed to avoid “extended” periods of walking or
standing, and Dr. Suthar opined that plaintiff should exercise to
improve her level of physical fitness and expressed his approval
when plaintiff reported that she was walking for exercise.

The

restrictions imposed by these treating providers and by Dr. Berkin
are consistent with the ALJ’s determination that plaintiff should
avoid prolonged walking or standing or lifting in excess of ten
pounds, and her conclusion that plaintiff could perform sedentary
work.

This administrative record contains more than adequate

medical evidence to support the ALJ’s RFC assessment.2

2

Plaintiff’s reliance upon Singh and Lauer is somewhat misplaced.
In Lauer, the ALJ substituted his own lay opinion for that of
medical experts. There is no evidence that the ALJ here committed
this error. This administrative record contains numerous medical
reports from various doctors addressing plaintiff’s ability to
function in the workplace, opinions upon which the ALJ did, and was
entitled to, rely. In Singh, briefly, the ALJ improperly rejected
the opinion of a treating neurologist whose opinion was wellsupported by the record, in favor of the opinions of consulting
doctors who were not specialists and who had never examined the
-26-

Contrary
considered

the

to

plaintiff’s

outlying

opinion

argument,
of

Dr.

the

ALJ

Khattak,

properly

who

imposed

significant restrictions upon plaintiff due to physical and mental
factors.

In general, “[a] treating physician’s opinion is given

controlling weight if it is well-supported by medically acceptable
clinical

and

laboratory

diagnostic

techniques

inconsistent with the other substantial evidence.”

and

is

not

Renstrom v.

Astrue, 680 F.3d 1057, 1064 (8th Cir. 2012) (quoting Perkins v.
Astrue, 648 F.3d 892, 897 (8th Cir. 2011)). A treating physician’s
opinion

is

not

automatically

entitled

to

controlling

weight,

however, because the ALJ must evaluate the record as a whole.

Id.

An ALJ is entitled to discount or even disregard a treating
physician’s opinion where other medical assessments are better
supported, or where the treating physician renders inconsistent
opinions that undermine confidence in those opinions.

Id.

An ALJ

is not required to “rely entirely on a particular physician’s
opinion or choose between the opinions [of] any of the claimant’s
physicians.”

Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011)

(citing Schmidt v. Astrue, 496 F.3d 833, 845 (7th Cir. 2007)).
The ALJ detailed Dr. Khattak’s findings and opinions,
wrote that she had considered Dr. Khattak’s opinion, and noted
inconsistencies between Dr. Khattak’s opinion and the balance of
the other objective medical evidence in the record as a whole,

claimant. In the case at bar, however, the ALJ had the benefit of
opinions from several physicians who had examined and even treated
plaintiff and, as will be discussed, the weight of the evidence of
record fails to provide much support for Dr. Khattak’s opinion.
-27-

including

the

other

physician

opinions

ability to function in the workplace.

regarding

plaintiff’s

An ALJ may reject the

opinion of any medical expert if it is inconsistent with the
medical record as a whole.
1219 (8th Cir. 2001).

Pearsall v. Massanari, 274 F.3d 1211,

It is the duty of the ALJ, not this Court,

to resolve conflicts in the evidence.

Id.

The ALJ wrote that, although Dr. Khattak opined that
plaintiff could not even tolerate a low-stress job due to anxiety
and depression, plaintiff did not allege these conditions as bases
for disability, nor did plaintiff testify that such conditions
precluded her from working.

Instead, plaintiff testified that she

could not work because of pain. “[A]n ALJ is not obliged ‘to
investigate a claim not presented at the time of the application
for benefits and not offered
disability.’”

at the hearing as a basis for

Gregg v. Barnhart, 354 F.3d 710, 713 (8th Cir. 2003)

(quoting Pena v. Chater, 76 F.3d 906, 909 (8th Cir. 1996)).

The

ALJ also noted that, while plaintiff does have a history of
depression, it did not appear to preclude her from working in the
past. A condition that was present but not disabling during working
years and has not worsened
disability.

cannot be used to prove a present

Orrick v. Sullivan, 966 F.2d 368, 370 (8th Cir. 1992)

(per curiam); Dixon v. Sullivan, 905 F.2d 237, 238 (8th Cir. 1990).
The

ALJ

noted

that

Dr.

“minimally overweight.”

Shitut

described

(Tr. 36, 346).

plaintiff

as

merely

The ALJ noted that, when

plaintiff presented for treatment at St. Louis Internal Medicine,
she reported that medication was controlling her symptoms, and she
-28-

had no medical findings of sensory or motor deficits.

Finally, the

ALJ

Dr.

noted

assessed,

that,
his

despite

own

the

extreme

limitations

treatment

records

indicate

that

Khattak

plaintiff

routinely characterized her pain as a level three on a one-to-ten
scale.

See Davidson v. Astrue, 578 F.3d 838, 842 (8th Cir. 2009)

("It is permissible for an ALJ to discount an opinion of a treating
physician

that

is

inconsistent

with

the

physician’s

clinical

treatment notes"); see also Hacker v. Barnhart, 459 F.3d 934, 937
(8th Cir. 2006) (when a treating physician’s notes are inconsistent
with his or her residual functional capacity assessment, we decline
to give controlling weight to the residual functional capacity
assessment).
Plaintiff suggests that the ALJ failed to comment upon
Dr. Padda’s October 2006 statement that plaintiff would be capable
of performing sedentary activity but was temporarily disabled and
unemployable.

This contention is meritless.

The ALJ’s opinion

contains a detailed discussion of plaintiff’s October 2006 visit to
Dr. Padda, the limitations assessed, and the qualification Dr.
Padda included: that plaintiff had not yet reached maximum medical
improvement.
records

(Tr. 37).

showing

The ALJ then discussed subsequent medical

improvement

in

plaintiff’s

condition,

and

subsequent opinions from other physicians regarding plaintiff’s
ability to perform work-related activity.

Nor does Dr. Padda’s

opinion provide support for Dr. Khattak’s opinion, as plaintiff
suggests.

Dr. Padda opined that plaintiff could not work above the

sedentary level while Dr. Khattak assessed extremely restrictive
-29-

limitations.
The ALJ in this case limited plaintiff to sedentary work.
This represents serious functional restrictions, and

supports the

conclusion that the ALJ did not entirely reject the medical opinion
evidence suggesting that plaintiff had significant limitations.
See Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005) (The ALJ’s
finding that plaintiff was limited to sedentary work is itself a
significant limitation, and reveals that the ALJ did give some
credit to the opinion evidence).
Plaintiff also suggests that there are medical records
that support the conclusion that she is disabled. As required, the
undersigned has considered the evidence which “fairly detracts from
the ALJ’s findings.” Groeper v. Sullivan, 932 F.2d 1234, 1237 (8th
Cir. 1991); see also Briggs v. Callahan, 139 F.3d 606, 608 (8th
Cir. 1998). However, where, as here, substantial evidence supports
the ALJ’s decision, that decision may not be reversed merely
because substantial evidence may support a different outcome.
Briggs, 139 F.3d at 608; Browning v. Sullivan, 958 F.2d 817, 821
(8th Cir. 1992), citing Cruse, 867 F.2d at 1184.

Review of the

ALJ’s RFC determination reveals that she properly exercised her
discretion and acted within her statutory authority in evaluating
the evidence of record as a whole.

The ALJ conducted a legally

sufficient credibility determination, properly considered all of
the evidence of record, and properly considered and weighed all of
the medical opinion evidence.

The ALJ’s extensive discussion,

analysis and consideration of the evidence in the case at bar
-30-

undermines plaintiff’s challenges of the RFC assessment.

See

Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir. 2010) (rejecting a
similar argument and affirming the ALJ’s RFC finding based upon the
ALJ’s review of the medical records and credibility factors).
Having reviewed the ALJ’s decision with the requisite deference,
the undersigned concludes that her RFC determination is supported
by substantial evidence on the record as a whole.
C.

Function By Function Analysis
Plaintiff argues that the ALJ failed to undertake the

function-by-function analysis required by Pfitzner v. Apfel, 169
F.3d 566 (8th Cir. 1999).

Review of the ALJ’s decision reveals no

error.
As plaintiff contends, the RFC should “identify the
individual’s functional limitations or restrictions and assess his
or her work-related abilities on a function-by-function basis,”
including

functions

such

as

sitting,

standing,

and

walking.

Depover v. Barnhart, 349 F.3d 563, 567 (8th Cir. 2003) (quoting
S.S.R. 96-8p, 1996 WL 374184, at *1).

In Depover, the Eighth

Circuit noted that an ALJ’s failure to make the function by
function assessment “could result in the adjudicator overlooking
some of an individual’s limitations or restrictions.”

Id.

The

Depover Court noted that, in Pfitzner, 169 F.3d 566, the ALJ’s
decision was reversed on this basis because the ALJ had failed to
“specify the details” of the claimant’s RFC, and instead described
it “only in general terms,” leaving it unclear whether substantial
evidence supported the ALJ’s decision that the claimant could
-31-

return to his past relevant work.

Id.

In the case at bar, however, (as in Depover) the ALJ did
not merely describe plaintiff’s RFC in “general terms.”

See Id.

Instead, as discussed above, the ALJ conducted a detailed analysis
of all of the objective evidence of record and of plaintiff’s
testimony, and formulated a specific RFC that took into account all
of

plaintiff’s

limitations

supported by the record.

that

the

ALJ

found

credible

and

The ALJ wrote that, while plaintiff could

not perform physically demanding work, and could not engage in
prolonged walking or standing or lifting in excess of ten pounds,
plaintiff could perform sedentary work.

The ALJ also cited the

specific definition of sedentary work from the Commissioner’s
Regulations.

It is apparent that the ALJ’s RFC determination was

made following a full examination of the record, and it does not
appear that the ALJ overlooked any of plaintiff’s limitations.
While the ALJ did not present her RFC findings in bullet-point
format with each limitation immediately followed by a discussion of
the supporting evidence, such a rigid format is not required by the
Eighth Circuit or by the Social Security Rulings, as plaintiff
suggests.
D.

Plaintiff’s Past Relevant Work
The ALJ determined that plaintiff could return to her

past work as a “medical office receptionist.”

(Tr. 38, 39).

Plaintiff alleges error, arguing that the ALJ failed to make
specific findings regarding the actual demands of her past work.
In response, the Commissioner contends that the ALJ specifically
-32-

stated that she had compared plaintiff’s RFC with the demands of
her past work and found that plaintiff could perform the job as
actually and generally performed, and that the record supports such
conclusion.

Plaintiff’s argument is well-taken.

In reaching her conclusion that plaintiff could return to
her past relevant work, the ALJ wrote as follows:
While the claimant cannot perform physical
demanding [sic] work, the claimant has the
capacity to perform sedentary work.
She is
precluded from prolonged walking or standing
and lifting in excess of ten pounds.
With
this residual functional capacity, she can
return to her past relevant work as a medical
office receptionist.
(Tr. 38).
. . .
The claimant is capable of performing past
relevant
work
as
a
medical
office
receptionist. This work does not require the
performance
of
work-related
activities
precluded
by
the
claimant’s
residual
functional capacity (20 CFR 404.1565).
In
comparing
the
claimant’s
residual
functional capacity with the physical and
mental demands of this work, the undersigned
finds that the claimant is able to perform it
as actually and generally performed.
(Tr. 39) (emphasis in original).
The foregoing does not amount to sufficient findings
regarding

the

demands

of

plaintiff’s

claimant’s residual functional
required at step four.

past

work.

Defining

a

capacity is not the only task

The ALJ is also required to “fully

investigate and make explicit findings as to the physical and
mental demands of a claimant’s past relevant work and to compare
that with what the claimant herself is capable of doing before he
-33-

determines that she is able to perform her past relevant work.”
Nimick v. Secretary of Health & Human Serv., 887 F.2d 864, 866 (8th
Cir. 1989).

“A conclusory determination that the claimant can

perform past work, without these findings, does not constitute
substantial evidence that the claimant is able to return to his [or
her] past work.”
Cir. 1991).

Groeper v. Sullivan, 932 F.2d 1234, 1239 (8th

One way in which the ALJ may discharge this duty is

via reference to the specific job descriptions in the Dictionary of
Occupational Titles (“DOT”) that are associated with the claimant’s
See Sells, 48 F.3d at 1047.

past work.

In the case at bar, the only description of plaintiff’s
past work the ALJ offered was to describe it by the title “medical
office receptionist.”

(Tr. 38, 39).

The ALJ did not refer to the

DOT, nor did the ALJ refer to any other evidence describing the
duties of the job of “medical office receptionist.”
The DOT does not contain an entry for a job titled
“medical

office

receptionist,”

but

it

does

contain

different

entries that include the word “receptionist” in the title.

One

could arguably infer that the ALJ was implicitly referring to the
DOT classification 237.367-038 (“receptionist”), a job which is
indeed performed at the sedentary level.
the

lack

of

an

express

reference

deficiency in opinion-writing.

However, in this case,

reflects

more

than

a

mere

Cf. McGinnis v. Chater, 74 F.3d

873, 875 (8th Cir. 1996) (asserted errors in opinion writing do not
require reversal if the error probably had no effect on the
outcome).

In her Work History Report, plaintiff did not describe

any of her past jobs using the term “receptionist.”

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She described

the job she performed from 2001 to 2005 as “customer service” in a
“medical equipment” business (Tr. 139), and also as
equipment delivery and intake”
tech.”

(Tr. 149).

“medical

(Tr. 166) and “customer service

She described the duties of this job as

“[t]ools to instruct or assembly Medical Equipment I take sheet to
deliver and instruct on equipment all paper work for billing.”
(Tr. 140).

She wrote that she lifted medical equipment, and that

she was always walking, bending, crouching and kneeling, and that
she lifted up to 50 pounds.

(Id.)

This most certainly does not

describe work performed at the sedentary level.
Plaintiff described her other past jobs using various
titles such as “patient care worker” in a hospital (which involved
lifting patients); “assistant secretary,” “press operator” in a
factory; doctor’s assistant in a doctor’s office; assembly worker
in a factory; CNA/Nurse’s aide in a nursing home; and waitress and
“food tech” in a restaurant.

(Tr. 139, 166).

As plaintiff contends,
The decision as to whether the claimant
retains the functional capacity to perform
past work which has current relevance has farreaching implications and must be developed
and
explained
fully
in
the
disability
decision. Since this is an important and, in
some instances, a controlling issue, every
effort must be made to secure evidence that
resolves the issue as clearly and explicitly
as circumstances permit.
Baker v. Secretary of Health and Human Services, 955 F.2d
552, 556-57 (8th Cir. 1992) (quoting Soc. Sec. Ruling No. 82-62).
Rather than form conclusions or inferences regarding what
the ALJ probably meant when she used the term “medical office
receptionist” to describe plaintiff’s past work, the undersigned
-35-

determines that remand is necessary to allow the ALJ to make
legally

sufficient

findings

plaintiff’s past work.

regarding

the

actual

demands

of

The undersigned does not discount the

possibility that the ALJ may conclude that plaintiff in fact can
perform her past relevant work or, should the ALJ decide to
continue the sequential evaluation process to step five, that she
can perform other work in the local and national economies.
Therefore, for all of the foregoing reasons, on the
claims that plaintiff raises,
IT
Commissioner

IS
is

HEREBY
REVERSED,

ORDERED
and

that

this

the

cause

is

decision

of

REMANDED

to

the
the

Commissioner for proceedings consistent with this opinion.

_______________________________
Frederick R. Buckles
UNITED STATES MAGISTRATE JUDGE
Dated this 21st day of September, 2012.

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