Williams v. Astrue

Filing 11

MEMORANDUM AND ORDER re: 10 7 1 ORDERED that the relief which Williams seeks in her Complaint and Brief in Support of Complaint is GRANTED. [Docs. 1, 7]. FURTHER ORDERED the ALJ's decision of April 29, 2011 is REVERSED andREMANDED. FURTHE R ORDERED that a Judgment of Reversal and Remand will be filedcontemporaneously with this Memorandum and Order remanding this case to the Commissioner of Social Security for further consideration pursuant to 42 U.S.C. 405(g), sentence 4. cc: Bureau of Hearings and Appeals Signed by Magistrate Judge Nannette A. Baker on 11/29/12. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BRENDA WILLIAMS,

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

Case No. 4:11-CV-1803 NAB

MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner of
Social Security’s final decision denying Brenda Williams’s (“Williams”) application for benefits
under Title II of the Social Security Act, 42 U.S.C. § 401 et seq. Williams alleges disability due
to nerve damage in her right leg and back, anxiety, and asthma. Williams filed a Brief in
Support of Plaintiff’s Complaint. [Doc. 7] The Commissioner filed a Brief in Support of the
Answer. [Doc. 10]. The parties have consented to the jurisdiction of the undersigned United
States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1).
I.

Procedural History

On January 8, 2010, Williams applied for a Period of Disability and Supplemental
Security Income, alleging an onset date of October 3, 2008. (Tr. 142.) Williams’s claim was
denied on initial consideration on March 4, 2010. (Tr. 71-75.) Williams requested a hearing
before an administrative law judge (“ALJ”) on April 16, 2010. (Tr. 78-79.) Following a hearing
before the ALJ, the ALJ issued a written opinion on April 29, 2011, upholding the denial of
benefits. (Tr. 10-22.) On August 22, 2011, the Appeals Council denied Williams’s request for

review.

(Tr. 1-3.)

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

Williams then filed this appeal on October 18, 2011. [Doc. 1].
II.

ADMINISTRATIVE RECORD
A.

Testimony Before the ALJ

On March 3, 2011, the ALJ held a hearing and heard testimony from Williams and a
vocational expert. (Tr. 23-68.) Williams was represented by counsel. (Tr. 25.)
1.

Claimant’s Testimony

Williams testified that she was 49 years old at the time of the hearing. (Tr. 29.) Williams
stated she attended business school for two years after graduating from high school where she
received training in computers and business accounting. (Tr. 31.) Williams claimed that none of
the vocational training she received in business school was relevant today, furthermore, she
would be unable to perform any vocation that she received training for in her present condition.
(Tr. 31.)
Williams testified that she was injured in a fall as described by her attorney on October 3,
2008.1 (Tr. 28, 31.) After the fall, Williams resumed working as a loan officer at Integrity
Financial after her brace was removed in January 2009. (Tr. 31-32.) She testified that she
worked from home generating new loans and returned to the office in March 2009. (Tr. 32.)
Williams stated that she processed one loan in those three months, earning about $700 in income.
(Tr. 32.)
Williams stated that she had difficulty performing her job as she had before the accident.
(Tr. 33.) She testified that she could no longer keep up with the persistence and pace that the job
required and had a hard time retaining information. (Tr. 33.) Williams stated she was in a

1

Williams’s attorney told the ALJ in his opening statement that Williams had a fall in October 2008, which
involved Williams falling seven feet backwards off of a deck and landing on a deck rail, which gave way. (Tr. 28.)
He also stated that the fall caused a compression fracture in Williams’s spine. (Tr. 28.)

2 

considerable amount of pain at that time. (Tr. 33.) Williams agreed to leave her job in March
2009 when her boss determined that she could no longer perform her duties as before. (Tr. 34.)
Prior to her accident in October 2008, Williams testified that she had worked for 10 years
in the loan industry. (Tr. 34.) She stated that she worked as a property manager for about
fourteen years before becoming a loan originator and closer.

(Tr. 55-57.)

According to

Williams, she was no longer able to perform this kind of work or any other type of office or real
estate work. (Tr. 34-35.) Her previous employer is no longer in business. (Tr. 35.) Williams
testified that she never received unemployment benefits, welfare, any other kind of charity or
government aid (Tr. 40), or workman’s compensation benefits. (Tr. 53.) Williams stated that
she “never had to do anything like this before” and she was embarrassed. (Tr. 40.)
Williams testified that she had constant pain in her back and right leg. (Tr. 35.) Williams
also testified that there were no other jobs she could perform in her present medical condition.
(Tr. 46.) She stated that she was told not to keep or put pressure on her back. (Tr. 48.) Williams
stated that she could only stand about an hour or hour and a half total throughout a workday.
(Tr. 48.) Williams reported being unable to do any bending or stooping. (Tr. 49.) She testified
that she did not kneel and needed help to stand if she was low to the ground. (Tr. 52-53.) She
also testified that her pain had gotten worse over the last year and caused her to walk less. (Tr.
51.) Williams stated that she was unable to perform a job that required sitting six hours a day
because sitting was problematic for her. (Tr. 52.) In addition, she stated she was unable to do
unlimited pushing or pulling with a 10-pound weight restriction. (Tr. 52.) Williams testified that
her pain forced her to lie down during the day. (Tr. 37-38.) She also testified that she needed to
elevate her right leg to control her pain, and that doing this up to twice a day helped minimize
her need to take pain medications. (Tr. 38.) Williams also stated an average day for her

3 

involved “moving positions, [doing] anything to alleviate [her] pain.” (Tr. 44.) Williams also
testified she suffered from memory loss that impacted her ability to perform her past job. (Tr.
40-41.)
Williams testified that she was currently taking Percocet, Xanax, and cholesterol
medication. (Tr. 58.) Williams said that she took Percocet up to 6 times per day but would “do
her hardest not to” take the full amount because it caused dizzy spells and concentration
problems. (Tr. 36.) Williams stated that if she took 4 or 5 pills a day, the pain would prevent her
from doing anything around the house. (Tr. 36.) She also testified that an increase in her
activity necessitated an increase in her pain medication. (Tr. 36-37.) Williams stated that her
pain and subsequent need to take pain medication was unpredictable (Tr. 41) and based on the
pain she was experiencing (Tr. 42). She also said that the medications helped but that they
caused confusion, dizzy spells, memory loss, affected her ability to drive (Tr. 58), read books
(Tr. 42), and sometimes caused her to cancel planned trips. (Tr. 43.) Williams testified she
suffered no physical side effects from her medication. (Tr. 58.) Williams assumed she would
need to be on narcotic pain medication “forever.” (Tr. 36.)
Williams testified that her pre-existing anxiety issues became “extremely” worse after her
accident. (Tr. 39.) Her anxiety resulted in panic attacks, crying spells two to three times a week,
and irritable moods. (Tr. 39-40.) Williams believed her limited mobility and unemployment
caused her to become depressed and anxious, for which she sought treatment. (Tr. 39-40.)
Williams testified that she lived in a house with stairs. (Tr. 29.) Williams denied being
able to frequently go up and down stairs (Tr. 52) and testified that she needed to limit what she
carried. (Tr. 30.) She stated her husband or son carried larger baskets of laundry and groceries

4 

up and down the steps. (Tr. 30; 49.) She also stated that she still used the stairs, such as when
she washed her husband’s “light laundry.” (Tr. 30.)
Williams stated that she tried to “help as much as possible” by dusting, emptying the
dishwasher, cooking, doing the laundry, and sometimes caring for the family’s pets. (Tr. 45-46.)
She also stated that she did not mow the lawn or take out the trash. (Tr. 45.) Williams testified
that that she had no problems with bathing or hygiene except that leaning over to shave her legs
hurt. (Tr. 44-45.) Williams testified that she drove two to three times a week, sometimes as far
as an hour-and-a-half from her home. (Tr. 42-43, 54.) Williams testified that she had problems
sleeping, she woke constantly, and was tired during the day. (Tr. 47.) Williams testified that she
had taken Ambien to help her sleep but that it was ineffective. (Tr. 47.)
2.

Vocational Expert’s Testimony

Gary Wiemhold, a vocational expert (“VE”), testified at the hearing. (Tr. 61-68.) He
testified that William’s past relevant work fit the DOT definitions of a Mortgage Loan
Interviewer and Closer, which are sedentary and skilled jobs at the second level of skill. (Tr.
65.) The VE considered William’s previous jobs as a Property and Apartment House Manager to
be light jobs that required some standing and walking and were on the first or second level of
skill. (Tr. 65-66.)
The ALJ posed the following hypothetical question to the VE:
“Please assume a person of claimant’s age, education, and work
experience. Please assume a person capable of performing at the
sedentary exertional level as defined in the Social Security regulations,
however please assume that that person is further limited and that they
need to sit/stand option every 15 minutes with –while remaining at task,
and are limited in that they can only perform some repetitive tasks. Would
such a person be able to perform any of the claimed past work?

5 

(Tr. 66.) The VE testified that such a person would be unable to perform Williams’s past
work because needing to sit/stand every fifteen minutes was not practical at most sitting/standing
types of jobs and the requirement that it be simple work was inconsistent with the complexity of
Williams’s past work. (Tr. 66.) The VE further testified that there was no other work that such a
person could perform in the regional or national economies. (Tr. 66.)
B.

Medical Records

On October 3, 2008, Williams was transported by ambulance to Jefferson Memorial
Hospital after falling and injuring her back. (Tr. 198.) She complained of severe and constant
neck, abdominal, right leg, and lower back pain. (Tr. 198.) CT scans showed two fractured ribs
on Williams’s right side and an L1 fracture on the lumbar spine. (Tr. 201.) The L1 fracture was
a “mild wedge compression.” (Tr. 204.) Dr. Robert Evans noted that Williams’s pain was
“controlled but…recurrent” with medication. (Tr. 201.)
On October 4, 2008, Williams was transferred to St. John’s Mercy Medical Center for
additional treatment.

(Tr. 215-32.)

Her injuries included fracture, lumbar spine, L1,

compression; right rib fracture; cerebral concussion; and anxiety disorder. (Tr. 215.) Williams
was prescribed a back brace. (Tr. 215.) While hospitalized at St. John’s Mercy, Williams was
fitted for a TLSO2 brace and received a “fairly substantial” dosage regimen of opioid analgesic3.
(Tr. 215.) She was discharged a few days later due to lack of space and suitability for discharge.
(Tr. 215.)
On October 29, 2008, Williams visited Dr. Benjamin Albano.

(Tr. 252-53.)

He

diagnosed Williams with closed fracture of four ribs, closed fracture of lumbar vertebra without

2

TLSO is an acronym for Thoracolumbar Sacral Orthosis, which means a brace for the pelvic part of the
thoracic and lumbar portions of the vertebral column. Stedman’s Medical Dictionary 1278, 1588, 1829 (27th ed.
2000).
3
Opiod analgesic is an opiate or synthetic narcotic that relieves pain without loss of consciousness or
producing anesthesia. Stedman’s Medical Dictionary 67, 1268-69 (27th ed. 2000).

6 

spinal cord injury, and asthma. (Tr. 252.) Dr. Albano prescribed Oxycodone, Tylenol, Advair
and continued William’s Xanax and Proventil prescriptions. (Tr. 252.)
On December 4, 2008, Williams visited Dr. Lukasz Curylo (Tr. 288.) She complained of
posterior right thigh pain that was aggravated by walking. (Tr. 288.) Dr. Curylo determined that
Williams had “painless range of motion” and that she was “non-tender over the lumbar spine.”
(Tr. 288.) Dr. Curylo reported that “[s]he [was] off OxyContin” and that her L1 compression
fracture was healed. (Tr. 288.) Dr. Curylo recommended Williams discontinue her back brace,
prescribed Vicodin for pain, and set up physical therapy. (Tr. 288).
On December 9, 2008, Williams visited Lisa West, a physical therapist. (Tr. 238-39.)
Williams reported she did not need to use a walker, and Ms. West noted she ambulated without a
device. (Tr. 238.) Williams reported she had fallen 4-5 times due to her “right leg giving out”
and that she had pain with crossing her right leg but felt it was getting stronger. (Tr. 238.)
Williams stated she had difficulty sleeping, claiming her pain medication kept her awake. (Tr.
238.) Williams reported feeling significantly less pain when taking her medications. (Tr. 238.)
Williams described having pain across the low back and L4 and up into her lower neck with
intermittent tingling down the posterior thigh.

(Tr. 238.) Ms. West noted that Williams had

severe weakness in her abdominals and back, poor endurance, limited lumbar flexibility,
radicular pain, and some tenderness through the hip joint. (Tr. 239.) The physical therapy
treatment plan for Williams included physical therapy visits 2-3 times per week for progressive
range of motion, stabilization, cardiovascular conditioning, modality support as needed for pain
control, and a home program. (Tr. 239.)
On December 23, 2008, Williams saw Dr. Thomas Lieb.

(Tr. 285-87.)

Williams

complained of discomfort in her back and pain in her right knee. (Tr. 285.) With ten being the

7 

worst pain, Williams reported her pain to be 8 out of 10 at its worst and 2 out of 10 at its best.
(Tr. 285.) Williams stated that sitting, straining, walking, and lying down were aggravating
activities but that heat and medications were providing relief. (Tr. 285.) Dr. Lieb noted a past
history of anxiety and depression. (Tr. 285.) Williams reported being independent with self-care
and household activities but occasionally needed some assistance. (Tr. 286.) Dr. Lieb noted
Williams drove and did not use a device for ambulation. (Tr. 286.) Dr. Lieb determined that
Williams had mild tenderness in her back, non-tenderness over the L1 rib, no focal weakness in
the muscles of her lower extremities, and full and nontender range of hip motion. (Tr. 286.)
While Williams complained of pain in her right leg, Dr. Lieb’s examination of her right knee
showed no tenderness and the full range of motion. (Tr. 287.) Dr. Lieb diagnosed Williams with
low back pain and right leg pain of an unclear etiology. He prescribed Percocet for chronic pain
management. (Tr. 287.)
Williams attended physical therapy thirteen times between December 9, 2008 and
February 10, 2009. (Tr. 233-237.) At her February 10, 2009 physical therapy appointment,
Williams reported doing better overall, although she reported an increase in pain on that date.
(Tr. 233.) Williams also reported that her pain was 1 out of 10 with two pain pills but 7 out of 10
prior to taking the medication. (Tr. 233.) Williams described feeling pins and needles in her
arms and legs at night. (Tr. 233.) Ms. West found that Williams had “progressed greatly” in her
ability to move without pain. (Tr. 233.) Ms. West determined that Williams’s flexion was at
100%, extension at 75-100%, and side bending (left and right) at 100%. (Tr. 233.) Ms. West
concluded that the goals of the physical therapy had been moderately to maximally met. (Tr.
233.) Ms. West recommended discharge from physical therapy and that Williams complete a
strengthening/stabilization and walking program to control her back pain at home. (Tr. 233.)

8 

On February 11, 2009, Williams visited Dr. Lieb. (Tr. 283-84.) Williams reported being
frustrated by her persistent back discomfort, which was primarily in the mid to upper lumbar
region. (Tr. 283.) Nonetheless, Williams had returned to her job and reported the pain, though
aggravating, was not directly inhibiting her work. (Tr. 283.) She reported her pain to be 4 out of
10 at worst and 0 out of 10 at best. She reported taking 2-4 Percocet a day. (Tr. 283.) Dr. Lieb
determined that her persistent low level discomfort likely emanated from her spinal injury but
that it would hopefully “continue to improve over time.” (Tr. 283.)
On April 15, 2009, Williams visited Dr. Lieb. (Tr. 279.) Williams complained of feeling
“quite frustrated” by her persistent pain because it limited her general physical activity. (Tr.
279.) Williams reported her pain as being 6 to 7 out of 10 at worst and 2 out of 10 at best. (Tr.
279.) She identified her source of her pain in her lower back rather than in the upper lumbar
region where the compression fracture occurred. (Tr. 279.) Williams reported increasing her
dosage of Percocet to between 4 to 6 pills per day. (Tr. 279.) Dr. Lieb diagnosed Williams with
chronic low back pain and ordered an MRI reimage of her back. (Tr. 279.)
On July 24, 2009, Williams saw Dr. Albano. (Tr. 258-59.) Williams reported having
moderate to severe low back pain and radiating pain in her right leg. (Tr. 258.) Dr. Albano’s
examination revealed normal curvature of the spine, no vertical spine tenderness, no paraspinal
spasm, no tenderness on SI joints, and straight leg raise testing was negative bilaterally. (Tr.
258.) He also found her motor system, sensation, and gait were normal and her reflexes were
symmetrical bilaterally. (Tr. 258). Dr. Albano diagnosed closed fracture of lumbar vertebra
without spinal cord injury, chronic bronchitis, and tobacco use disorder. He continued her
medications and prescribed Singulair. (Tr. 258.)

9 

On July 28, 2009, Williams visited Dr. Lieb. (Tr. 272.) Williams reported that things
were “stable,” she had no adverse reactions to medications, and her activity level was good. (Tr.
272.) Williams stated that her pain was 1 out of 10 at best and 7 out of 10 at worst but that her
current medication was adequate. (Tr. 258.) She reported taking about three pills per day. (Tr.
272.) Dr. Lieb diagnosed Williams with chronic low back pain. (Tr. 272.) On September 15,
2009, Dr. Lieb noted in Williams’ chart that she was taking up to six Percocet a day rather than
three a day. (Tr. 270.) Dr. Lieb increased her monthly prescription accordingly. (Tr. 270.)
On October 27, 2009, Williams visited Dr. Lieb. (Tr. 269.) Williams said her analgesia4
was fair, her activity level stable, and that she had no adverse reactions to medications. (Tr.
269.) Dr. Lieb diagnosed Williams with persistent low back pain and continued her Percocet
prescription. (Tr. 269.)
On November 24, 2009, Williams visited Dr. Albano.

(Tr. 261-62.)

Williams

complained of severe joint and back pain, morning stiffness, inability to stand more than one
hour, inability to bend or lift more than ten pounds without pain, and drowsiness from her pain
medications. (Tr. 261.) Williams also complained of being highly stressed due to her health,
work, family, and financial troubles, depressed and sad moods, sleep disturbances, feeling
overwhelmed, and crying easily. (Tr. 261.) Williams reported that she could not work since her
accident due to pain and confusion from her medications. (Tr. 261.) Dr. Albano found Williams
had restricted rotation on both sides of the cervical spine and restricted forward bending,
restricted bending on both sides of the lumbar spine and restricted forward bending, sacroiliac
joint tenderness on the left side, and restricted motion in all directions in the upper extremities.

4

Analgesia is a “neurologic or pharmacologic state in which painful stimuli are so moderated that, though
still perceived, they are no longer painful.” Stedman’s Medical Dictionary 67 (27th ed. 2000).

10 

(Tr. 261.) His diagnosis included closed fracture of lumbar spine without spinal cord injury,
closed fracture of four ribs, and polyneuropathy.5 (Tr. 262.)
On November 25, 2009, Dr. Albano authored a letter regarding Williams. (Tr. 265.) Dr.
Albano recommended disability due to pain stemming from her back injury (Tr. 265.) Dr.
Albano stated that Williams reported that her pain was severe and that she could not sit or stand
for more than one hour. (Tr. 265.) He also stated that she reported that she could not lift or bend
over due to pain and that the pain medications she took were sedating and “cloud[ed] her mind.”
(Tr. 265.)

The letter also stated that Williams reported that she could not perform basic

paperwork at her company due to the pain and medications. (Tr. 265.)
On January 26, 2010, Williams visited Dr. Lieb. (Tr. 266.) She reported her overall
analgesia as fair. (Tr. 266.) Williams complained of confusion and drowsiness as “significant
adverse” effects related to her Percocet use and took less medication to minimize these
symptoms. (Tr. 266.) Williams reported that she was trying to remain active but was not “as
active as she would like.” (Tr. 266.) Dr. Lieb told Williams she should not be driving if she was
having side effects from her medication and changed her medication to Hydrocodone and
discontinued the Percocet. (Tr. 266.)
On February 16, 2010, Williams’ residual functional capacity (“RFC”) was assessed by
Dr. Jean Diemer, the state agency medical doctor. (Tr. 293-98.) Dr. Diemer found Williams
could lift up to ten pounds frequently, stand and walk for a total of two hours in an 8-hour
workday, sit for a total of six hours in an 8-hour workday, and had unlimited pushing and
pulling.

(Tr. 294.)

Dr. Diemer’s report states that the medical records show Williams

progressed greatly in her ability to perform exercises and strengthening without guarding or pain,

5

Polyneuropathy is a non-traumatic generalized disorder of peripheral nerves.
Dictionary 1422 (27th ed. 2000).

11 

Stedman’s Medical

was taking significantly less pain medication, and had improved lumbar flexibility and cord
strength though pain remained centralized across her low back. (Tr. 294-95.) Dr. Diemer noted
that Williams complained of an inability to stand or sit more than one hour, difficulty sleeping
and bending, and becoming easily confused due to her medications, and depression. (Tr. 295.)
Dr. Diemer also noted that Williams reported being able to prepare sandwiches and soups, do
light housework, walk about one block daily, and drive short distances. (Tr. 295.) Dr. Diemer
found her complaints only partially credible because she did not believe there was support for the
complaints in the objective medical record. (Tr. 295.) Dr. Diemer concluded that Williams did
not meet or equal a listed impairment that warranted a medical vocation allowance. (Tr. 295.)
On February 23, 2010, Williams visited Dr. Lieb.

(Tr. 320.)

Williams reported

Hydrocodone interfered with her breathing. (Tr. 320.) Dr. Lieb changed the medication from
Hydrocodone to Percocet. (Tr. 320.)
On March 4, 2010, Dr. Geoffrey Sutton, a psychologist, conducted a Psychiatric Review
Technique regarding Williams. (Tr. 299-310.) He diagnosed Williams with an anxiety-related
disorder. (Tr. 299.) Dr. Sutton found Williams had mild restrictions in the activities of daily
living and social functioning as well as moderate difficulties in maintaining concentration,
persistence, and pace. (Tr. 307.) Dr. Sutton noted that, while Williams had a diagnosis of
anxiety disorder, she never received formal psychiatric treatment for these symptoms nor were
overt psychological symptoms recorded in the treatment notes. (Tr. 309.) He determined that
her allegations were mostly credible because her impairment was “more than not severe” and
there was a reasonable probability that some limitations in concentration, persistence, and pace
related to medication and/or pain existed. (Tr. 309.) Dr. Sutton found no evidence of impaired

12 

intelligence or memory and believed Williams retained the ability to perform simple repetitive
tasks on a regular basis. (Tr. 309.)
On March 23, 2010, Williams visited Dr. Lieb. (Tr. 318-19.) Williams reported that she
was doing “terrible” and remained frustrated with her pain. (Tr. 318.) She reported being out of
pain medication before the appropriate time, and Dr. Lieb emphasized that she needed to stay
within the prescribed guidelines. (Tr. 318.) Williams reported her analgesia to be fair to poor,
her activity level as marginal, and her sleep as very poor. (Tr. 318.) She denied having adverse
reactions to medications. (Tr. 318.) Dr. Lieb increased Williams’ Oxycodone prescription but
limited her to six per day. (Tr. 318.)
On June 1, 2010, Williams saw Dr. Albano. (Tr. 332-33.) Williams complained of low
back pain in the midline. (Tr. 332.) Dr. Albano’s examination revealed normal curvature of the
spine, no vertical spine tenderness, no paraspinal spasm, no tenderness on SI joints, and straight
leg raise testing was negative bilaterally. (Tr. 332.) He also found her motor system, sensation,
and gait were normal and her reflexes were symmetrical bilaterally. (Tr. 332).

Dr. Albano

diagnosed Williams with anxiety state, unspecified and closed fracture of the lumbar vertebra
without spinal cord injury, and asthma. (Tr. 333.) He continued her Xanax and Percocet
prescriptions. (Tr. 333.)
On June 22, 2010, Williams visited Dr. Lieb. (Tr. 317.) She reported her analgesia as
fair to good and that her activity level was stable with some issues from dizziness. (Tr. 317.)
Williams felt that was she doing “75% better” due to the change in pain medication and was
sleeping better. (Tr. 317.) She reported her pain being seven out of ten at worst and 0 out of 10
at best. (Tr. 317.) Dr. Lieb continued the Oxycodone prescription. (Tr. 317.)

13 

On September 15, 2010, Williams saw Dr. Lieb. (Tr. 316.) Williams reported having no
ill effects from her medications and that her analgesia was “okay.” (Tr. 316.) She stated that her
pain was 3 out of 10 at worst and 0 out of 10 at best and that her sleep was stable. (Tr. 316.)
On December 10, 2010, Williams visited Dr. Lieb. (Tr. 315.) She complained of stress
at home that led to increased activity and aggravation of her condition. (Tr. 315.) Williams
reported she was “generally doing okay” and sleeping fairly, with her pain at 7 out of 10 at worst
and 0 out of 10 at best. (Tr. 315.) Dr. Lieb continued to prescribe Oxycodone. (Tr. 315.)
On January 19, 2011, Williams visited Dr. Lieb. (Tr. 314.) Williams reported doing
better since her last visit since stressors at home had decreased somewhat. (Tr. 314.) She said
her analgesia was “okay,” her activity level was stable, and she had no adverse reactions to
medication. (Tr. 314.) Dr. Lieb diagnosed Williams with persistent back pain. (Tr. 314.)
On February 28, 2011, Williams visited Dr. Paul H. Wang, a psychologist. (Tr. 338.)
Dr. Wang observed that Williams had a restricted affect and her mood was anxious, depressed,
and frustrated. (Tr. 338.) Williams complained of lots of pain and expressed a desire to go back
to the life she had. (Tr. 338)
Williams visited Dr. Wang on March 7, 2011. (Tr. 339.) Dr. Wang observed blunted
affect and anxious and depressed mood in Williams. (Tr. 339.) He noted Williams was tearful
and had “a lot of depression and anxiety.” (Tr. 339.)

Williams complained of pain and

frustration at her inability to return to work and do what she used to do. (Tr. 339)
On March 21, 2011, Williams visited Dr. Wang. (Tr. 337.) Dr. Wang observed restricted
and blunted affect and depressed mood. (Tr. 337.) Williams complained of being tired all day.
(Tr. 337.) They discussed Williams’s inability to resume life as before. (Tr. 337)

14 

On April 6, 2011, Dr. Wang authored a letter regarding Williams. (Tr. 342.) Dr. Wang
noted she had been diagnosed with major depression and panic disorder without agoraphobia.
(Tr. 342.) He opined that Williams could not resume her prior employment or perform any work
that required mental alertness and concentration. (Tr. 342.) He noted Williams had problems
with short-term memory, focus, and concentration as well as chronic back pain that made
standing or sitting for any extended period difficult.

(Tr. 342.)

Dr. Wang recommended

Williams be considered for total disability given her physical, mental, and psychological
limitations. (Tr. 342.)

III.

ALJ DECISION

The ALJ found that Williams met the insured status requirements of the Social Security
Act through March 31, 2011. (Tr. 15.) Next, the ALJ found Williams did not engage in
substantial gainful employment after her alleged disability onset date of October 3, 2008 through
her date last insured of March 31, 2011. (Tr. 15.) The ALJ determined that Williams suffered
from the severe impairment of a residual of mild wedge compression fracture at L1 and the nonsevere impairments of anxiety and asthma. (Tr. 15.) The ALJ also determined that Williams did
not have an impairment or a combination of impairments that met or medically equaled a listed
impairment in 20 CFR § 404.1520(d), 404.1525 and 404.1526. (Tr. 15.) Then, the ALJ found
that Williams had the RFC to perform sedentary work with a sit and stand option every hour.
(Tr. 16-21). The ALJ found that based on the RFC, Williams could perform her past relevant
work as a mortgage loan interviewer and closer. (Tr. 21-22.) Consequently, the ALJ concluded
that Williams was not disabled within the meaning of the Social Security Act. (Tr. 22.)

15 

IV.

LEGAL STANDARD

Under the Social Security Act, the Commissioner has established a five-step process for
determining whether a person is disabled. 20 C.F.R. §§ 416.920, 404.1529. “‘If a claimant fails
to meet the criteria at any step in the evaluation of disability, the process ends and the claimant is
determined to be not disabled.’” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting
Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the
claimant first cannot be engaged in “substantial gainful activity” to qualify for disability benefits.
20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant must have a severe impairment. 20
C.F.R. §§ 416.920(c), 404.1520(c). The Social Security Act defines “severe impairment” as
“any impairment or combination of impairments which significantly limits [claimant’s] physical
or mental ability to do basic work activities … .” Id. “The sequential evaluation process may be
terminated at step two only when the claimant’s impairment or combination of impairments
would have no more than a minimal impact on [his or] her ability to work.” Page v. Astrue, 484
F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir.
2001).
Third, the ALJ must determine whether the claimant has an impairment which meets or
equals one of the impairments listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d);
Part 404, Subpart P, Appendix 1. If the claimant has one of, or the medical equivalent of, these
impairments, then the claimant is per se disabled without consideration of the claimant’s age,
education, or work history. Id.

16 

Fourth, the impairment must prevent claimant from doing past relevant work.6 20 C.F.R.
§§ 416.920(e), 404.1520(e). At this step, the burden rests with the claimant to establish his or
her Residual Functional Capacity (“RFC”). Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir.
2008). See also Eichelberger, 390 F.3d at 590-91; Masterson v. Barnhart, 363 F.3d 731, 737
(8th Cir. 2004). RFC is defined as what the claimant can do despite his or her limitations, 20
C.F.R. § 404.1545(a), and includes an assessment of physical abilities and mental impairments.
20 C.F.R. § 404.1545(b)-(e). The ALJ will review a claimant’s RFC and the physical and mental
demands of the work the claimant has done in the past. 20 C.F.R. § 404.1520(f). If it is found
that the claimant can still perform past relevant work, the claimant will not be found to be
disabled. Id.; 20 C.F.R. § 416.920(a)(4)(iv). If the claimant cannot perform past relevant work,
the analysis proceeds to Step V.
At the fifth and last step, the ALJ considers the claimant’s RFC, age, education, and work
experience to see if the claimant can make an adjustment to other work.

20 C.F.R.

§ 416.920(a)(4)(v). If it is found that the claimant cannot make an adjustment to other work, the
claimant will be found to be disabled. Id. See also 20 C.F.R. § 416.920(g). At this step, the
Commissioner bears the burden to “prove, first that the claimant retains the RFC to perform
other kinds of work, and, second that other work exists in substantial numbers in the national
economy that the claimant is able to perform.” Goff, 421 F.3d at 790; Nevland v. Apfel, 204 F.3d
853, 857 (8th Cir. 2000). The Commissioner must prove this by substantial evidence. Warner v.
Heckler, 722 F.2d 428, 431 (8th Cir. 1983).

6

“Past relevant work is work that [the claimant] has done within the past 15 years, that was substantial
gainful activity, and that lasted long enough for [the claimant] to learn how to do it.” Mueller v. Astrue, 561 F.3d
837, 841 (8th Cir. 2009) (citing 20 C.F.R. § 404.1560(b)(1)).

17 

If the claimant satisfies all of the criteria of the five-step sequential evaluation process,
the ALJ will find the claimant to be disabled. “The ultimate burden of persuasion to prove
disability, however, remains with the claimant.” Id. See also Harris v. Barnhart, 356 F.3d 926,
931 n.2 (8th Cir. 2004) (citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)).
This court reviews the decision of the ALJ to determine whether the decision is supported
by “substantial evidence” in the record as a whole. See Smith v. Shalala, 31 F.3d 715, 717 (8th
Cir. 1994). “Substantial evidence is less than a preponderance but is enough that a reasonable
mind would find it adequate to support the Commissioner’s conclusion.”

Krogmeier v.

Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002). See also Cox v. Astrue, 495 F.3d 614, 617 (8th
Cir. 2007). Therefore, even if a court finds that there is a preponderance of the evidence against
the ALJ’s decision, the ALJ’s decision must be affirmed if it is supported by substantial
evidence. Clark v. Heckler, 733 F.2d 65, 68 (8th Cir. 1984). In Bland v. Bowen, 861 F.2d 533,
535 (8th Cir. 1988), the Eighth Circuit Court of Appeals held:
[t]he concept of substantial evidence is something less than the weight of the
evidence and it allows for the possibility of drawing two inconsistent conclusions,
thus it embodies a zone of choice within which the Secretary may decide to grant
or deny benefits without being subject to reversal on appeal.
As such, “[the reviewing court] may not reverse merely because substantial evidence
exists for the opposite decision.” Lacroix v. Barnhart, 465 F.3d 881, 885 (8th Cir. 2006)
(quoting Johnson v. Chater, 87 F.3d 1015, 1017 (8th Cir. 1996)). Similarly, the ALJ decision
may not be reversed because the reviewing court would have decided the case differently.
Krogmeier, 294 F.3d at 1022.

18 

V.

DISCUSSION

Williams alleges three points of error. First, Williams asserts that the ALJ failed to
provide the weight given to the medical opinions of Drs. Albano and Diemer and erroneously
gave nominal weight to the opinions of Drs. Wang and Sutton. Second, Williams contends that
the ALJ failed to properly consider her anxiety as a severe medically determinable impairment.
Third, Williams states that the ALJ’s determination that she could return to her past relevant
work was not supported by substantial evidence.
A.

Opinion Evidence
1.

Treating Physicians

Williams first asserts that the ALJ failed to disclose the weight given to Dr. Albano’s
opinion and failed to give at least significant if not controlling weight to the opinions of Drs.
Albano and Wang, Williams’s treating physicians. The Commissioner responds that the ALJ
gave the appropriate weight to the opinions of Drs. Albano and Wang.
Generally, a treating physician’s opinion is given controlling weight, but is not inherently
entitled to it. Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006). A treating physician’s
opinion “does not automatically control or obviate the need to evaluate the record as a whole.”
Leckenby v. Astrue, 487 F.3d 626, 632 (8th Cir. 2007). A treating physician’s opinion will be
given controlling weight if the opinion is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the
case record. 20 C.F.R. § 404.1527(c)(2)7; SSR 96-2p; see also Hacker, 459 F.3d at 937. When
given controlling weight, the ALJ defers to a treating physician’s medical opinions about the
nature and severity of an applicant’s impairments, including symptoms, diagnosis and prognosis,

7

At the time of the ALJ’s decision, this regulation was codified at 20 C.F.R. § 404.1527(d)(2).

19 

what an applicant is capable of doing despite the impairment, and the resulting restrictions. 20
C.F.R. § 404.1527(a)(2); Ellis v. Barnhart, 392 F.3d 988, 995 (8th Cir. 2005). “A medical
source opinion that an applicant is ‘disabled’ or ‘unable to work,’ however, involves an issue
reserved for the Commissioner and therefore is not the type of ‘medical opinion’ to which the
Commissioner gives controlling weight.”

Ellis, 392 F.3d at 994; see also 20 C.F.R.

§ 404.1527(e). Whether the ALJ grants a treating physician’s opinion substantial or little weight,
the regulations provide that the ALJ must ‘always give good reasons’ for the particular weight
given to a treating physician’s evaluation.” (20 C.F.R § 404.1527(c)(2)8; see Davidson v. Astrue,
501 F.3d 987, 990 (8th Cir. 2007) (when an ALJ discounts a treating physician’s opinion, he
should give ‘good reasons’ for doing so); see also SSR 96-2p.
a.

Dr. Albano

Williams contends that the ALJ erred by failing to provide the weight she gave to Dr.
Albano’s medical opinion, which Williams asserts should be controlling. Unless a treating
physician’s opinion is given controlling weight, the ALJ must explain the weight given to any
medical opinion, whether it comes from a treating physician or a State agent. See 20 CFR
§§ 404.1527(e)(2)(ii).
The ALJ’s decision clearly states that “little weight is accorded to the findings and
recommendations within Dr. Albano’s November 25, 2009 letter.” (Tr. 19.) The ALJ listed
several reasons for attributing little weight to Dr. Albano’s opinion.

The ALJ noted the

following: (1) the letter’s recommendations and limitations appear to be almost exclusively
based on Williams’s subjective complaints and self-report; (2) recommendations and findings of
limitation are grossly inconsistent with his own treatment notes; (3) recommendation and
findings are unsupported by overall lack of supportive diagnostic testing; (4) pain statements are

8

At the time of the ALJ’s decision, this regulation was codified at 20 C.F.R. § 404.1527(d)(2).

20 

unsupported by treatment; (5) statements regarding medication side effects are unsupported by
treatment notes; and (6) the medical records do not document any physician’s findings that
Williams has had persistent and adverse side effects due to prescribed medication, which were
incapable of being controlled by medication adjustments or changes. (Tr. 19.) Williams states
that Dr. Albano’s opinion is supported by “CT’s (Tr. 204, 206) an MRI (Tr. 227-8), and signs
and symptoms.”
The Court believes that the ALJ’s determination that Dr. Albano’s opinion was entitled to
little weight was permissible. Dr. Albano’s letter states that Williams “report[ed]” severe pain
and that she could not sit or stand for more than one hour. (Tr. 265.) Dr. Albano also states that
Williams said she could not lift or bend over, that the pain medication she took was sedating and
“cloud[ed] her mind,” and that she could not perform basic paper work at her company due to the
pain and medications.

(Tr. 265.)

The entire opinion consists of Dr. Albano’s statement

“recommending disability” and William’s complaints.

(Tr. 265.)

Dr. Albano’s letter is

conclusory and does not cite to any objective medical evidence as the basis for his opinion.
Therefore, the ALJ properly discredited Dr. Albano’s opinion because it was based solely on
Williams’s subjective complaints without any supporting medical evidence.9 See Wildman v.
Astrue, 596 F.3d 959, 967 (8th Cir. 2010) (ALJ did not err when physicians’ opinions were
discounted because they were based largely on claimant’s subjective complaints). The evidence
cited by Williams as supporting Dr. Albano’s opinion does not provide sufficient evidence for a
finding of disability. The CT scans and MRI were taken at the time of Plaintiff’s initial injury in
October 2008 documenting that she had a mild wedge compression at L1 (Tr. 204, 206, 227-28)
and it is unclear what Williams means by “signs and symptoms.”

9

Dr. Albano’s November 24, 2009 treatment notes also indicate that his finding of disability was based
solely on Williams’s subjective complaints on that date. In those notes, he states “patient cannot function in her job
due to pain and pain meds affect her concentration; so will recommend disability.” (Tr. 262).

21 

Further, as stated by the ALJ, Dr. Albano’s letter contradicts his own treatment notes and
the notes of Williams’s other treating physicians. For example, X-rays taken by Dr. Curylo in
December 2008 showed a healed L1 compression fracture, and a physical examination showed a
“painless” range of motion with no tenderness over the lumbar spine or right knee. (Tr. 288).
Similarly, Dr. Lieb in December 2008 found Williams had non-tenderness over the L1 rib, no
focal weakness in the muscles of her lower extremities, and full and nontender range of hip and
right knee motion. (Tr. 286-87.) Lisa West, Williams’ physical therapist, in February 2009
found Williams had “progressed greatly” in her ability to move without pain, had little to no
restrictions on the range of motion, and concluded the goals of physical therapy had been
“moderately to maximally met.” (Tr. 233.) Dr. Albano’s examination in July 24, 2009 revealed
normal curvature of the spine, no vertical spine tenderness, no paraspinal spasm, no tenderness
on SI joints, normal straight leg raise, normal reflexes, normal sensation, and normal gait. (Tr.
258). Dr. Albano’s November 24, 2009 examination found Williams had restricted rotation on
both sides of the cervical spine and restricted forward bending, restricted bending on both sides
of the lumbar spine and restricted forward bending, sacroiliac joint tenderness on the left side,
normal range of motion of all joints in the lower extremity, and restricted motion in all directions
in the upper extremity.

(Tr. 261.)

Dr. Albano did not change Williams’s medication or

treatment and scheduled her for a follow-up visit in six months. (Tr. 261). Dr. Albano’s June
2010 examination, however, revealed normal curvature of the spine, no vertical spine tenderness,
no paraspinal spasm, no tenderness on SI joints, normal straight leg raise, normal reflexes,
normal sensation, and normal gait. (Tr. 332.) There are several notations in the medical record
where Williams reported that her medication was adequate or had no adverse effects (Tr. 272,

22 

314, 317, 318) and when she did complain about the side effects of her medication, it was
changed or adjusted (Tr. 266, 270, 320).
Williams argues that if the ALJ questioned the credibility of Dr. Albano’s opinions, she
had a duty to re-contact him to clarify his opinions and motives. While an ALJ “has an
independent duty to develop the record” fully and fairly, the ALJ is not required to re-contact a
treating physician “unless a crucial issue is undeveloped.” Goff v. Barnhart, 421 F.3d 785, 791
(8th Cir. 2005). Although an ALJ should re-contact a treating physician “when the information
[he or she] provides is inadequate for the ALJ to determine whether the applicant is actually
disabled,” the regulations “do not require an ALJ to [re-contact] a treating physician whose
opinion is inherently contradictory or unreliable.” Hacker v. Barnhart, 459 F.3d at 938 (citing 20
C.F.R. § 404.1512(e)). In Hacker, the issue was not whether the treating physicians' opinions
were somehow incomplete; rather, the ALJ found them unsupported by the record and the
treating physicians' own earlier opinions and advice. Id. The court concluded the ALJ was
under no obligation to re-contact the treating physicians under such circumstances.

Id.

Similarly, here, the ALJ gave little weight to the treating physician’s opinion because she found
his treatment notes and the objective medical record inconsistent with a finding of disability, not
that his opinions were somehow incomplete. Therefore, as in Hacker, the ALJ was under no
duty to re-contact Dr. Albano in this case. The ALJ did not err in according little weight to Dr.
Albano’s opinion.

23 

b.

Dr. Wang’s Opinion

The ALJ noted that Williams received treatment from Dr. Wang in February and March
2011. Dr. Wang’s opinion letter dated April 6, 2011 states that in his opinion, given her
physical, mental, and psychological limitations, he recommends that Williams be considered for
total disability. (Tr. 342.) The opinion letter further states that Williams has problems with short
term memory, difficulty with focus and concentration, chronic physical pain, difficulties with
sitting or standing for an extended period of time. (Tr. 342.) The ALJ gave “little” weight to Dr.
Wang’s findings. (Tr. 21.) The ALJ states that the following facts undermine the weight
accorded to Dr. Wang’s opinion:

(1) Dr. Wang’s treatment notes do not reflect objective

medical findings indicative of disabling limitations of function; (2) the medical treatment records
fail to document mental health treatment prior to February 2011; and (3) the opinion letter
appears to have been created for the pursuit of benefits rather than medical treatment. (Tr. 20).
The ALJ also noted that while Drs. Albano, Lieb, and Curylo indicate Williams had
anxiety in her medical history and was treated with Xanax, there is no evidence of ongoing
objective medical findings of severe anxiety. (Tr. 20.) The ALJ also determined that the
medical treatment records do not document that Williams received any ongoing or frequent
treatment through a psychiatrist, psychologist, or counselor. (Tr. 20-21). The ALJ found there is
no medical evidence that any treating psychiatrist or psychologist found that Williams had any
significant limitations of function lasting twelve months in duration since the alleged onset date
of disability. (Tr. 21.) The ALJ also noted that Dr. Wang’s opinion was inconsistent with Dr.
Diemer, the state agency psychologist. (Tr. 21.) Based on the foregoing, the ALJ concluded that
Dr. Wang’s opinion was entitled to little weight. The Court finds that the ALJ has given good

24 

reasons for according little weight to Dr. Wang’s opinion and the ALJ’s finding is supported by
substantial evidence in the record. See Hacker, 459 F.3d at 937 (ALJ did not err in discounting
treating physicians’ opinions that were inconsistent with medical record and claimant’s
activities); Shannon v. Chater, 54 F.3d 484, 486 (8th Cir. 1995) (it appeared that claimant’s
doctor’s visits were linked in quest to obtain benefits rather than seek medical treatment and
failure to seek treatment previously inconsistent with finding of disability). Accordingly, the
ALJ did not err in giving little weight to Dr. Wang’s opinion.
2.

Non-Treating Physicians

Dr. Diemer completed a Physical RFC Assessment regarding Williams and Dr. Sutton
completed a Psychiatric Review Technique regarding Williams. Dr. Diemer and Dr. Sutton are
state agency doctors. Williams asserts that the ALJ did not identify the weight given to Dr.
Diemer’s medical opinion and erroneously gave nominal weight to Dr. Sutton’s opinion.
a.

Dr. Diemer

The ALJ mentions the Physical RFC Assessment completed by Dr. Diemer and notes that
Dr. Diemer found Williams capable of a significant range of sedentary work. (Tr. 19, 293-298.)
The ALJ then found that Dr. Diemer’s findings do not significantly support Williams’s
allegations. (Tr. 19.) The ALJ does not provide any information as to the weight or use of Dr.
Diemer’s Assessment in determining Williams’s RFC. Plaintiff asserts that because the ALJ and
Dr. Diemer both stated that Williams was capable of sedentary work, it should be assumed that
the ALJ based her decision on Dr. Diemer’s opinion, which was improper.
“An ALJ may consider the opinion of an independent medical advisor as one factor in
determining the nature and severity of a claimant’s impairment.” Hacker, 459 F.3d at 939. “The
regulations specifically provide that the opinions of non-treating physicians may be considered.

25 

20 C.F.R. 404.1527(e).10 Opinions of non-examining, consulting physicians standing alone,
[however], are not considered substantial evidence. Harvey v. Barnhart, 368 F.3d 1013, 1016
(8th Cir. 2004). The ALJ in this case, however, did not rely solely on Dr. Diemer’s opinion in
determining Williams’s RFC. The ALJ’s decision provides a very detailed analysis of the
medical record as a whole, as well as the observations of Williams’s treating physicians, and
Williams’s own description of her limitations.

Dr. Diemer’s assessment also considered

Williams’s medical records. Accordingly, the ALJ did not err in relying on Dr. Diemer’s
opinion as part of a review of all of the evidence in the record. Harvey, 368 F.3d at 1016 (ALJ’s
reliance on consulting physician’s opinion as part of the record provided substantial support for
ALJ’s findings); Krogmeier v. Barnhart, 294 F.3d 1019, 1024 (8th Cir. 2002) (ALJ’s
consideration of treating physician’s opinion, consulting physician’s opinion, claimant’s
testimony and credibility, and an independent review of medial record constituted substantial
evidence in support of decision). “While it may have been more preferable for the ALJ to
discuss [Dr. Diemer’s] opinion in more depth,” “the ALJ was not required to perform an in-depth
analysis on each piece of evidence.” Renstrom v. Astrue, 680 F.3d 1057, 1065 (8th Cir. 2012).
b.

Dr. Sutton

Williams asserts that Dr. Sutton’s opinion should have been given more than nominal
weight. Dr. Sutton found Williams’s anxiety was more than “not severe” and that she had
moderate difficulties in maintaining concentration, persistence, and pace. (Tr. 307.) Dr. Sutton
opined that Williams could perform simple repetitive tasks on a regular basis. (Tr. 309.) The
ALJ gave little weight to Dr. Sutton’s findings, because similar to Dr. Wang’s opinion, it was
inconsistent with the remainder of the record.

(Tr. 21.)

The Court finds that the ALJ’s

determination that Dr. Sutton’s findings should be given little weight due to the inconsistency

10

At the time of the ALJ’s decision, this regulation was codified at 20 C.F.R. § 404.1527(f).

26 

with the remainder of the medical record was proper for the same reasons as discussed above
regarding Dr. Wang’s opinion in Section V.A.1.b, above.
B.

Determination of Anxiety as a Severe Impairment

Williams argues that the ALJ erred by failing to consider anxiety as a severe medically
determinable impairment. The Commissioner argues that the ALJ properly determined that
Williams’s anxiety was not a severe impairment. The Court agrees. To be considered severe, an
impairment must significantly limit a claimant’s ability to do basic work activities. See 20 C.F.R
§ 404.1520(c) (emphasis added). Step two [of the five-step] evaluation states that a claimant is
not disabled if his impairments are not ‘severe.’” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir.
2007). “An impairment is not severe if it amounts only to a slight abnormality that would not
significantly limit the claimant's physical or mental ability to do basic work activities.” Id. at
707. “If the impairment would have no more than a minimal effect on the claimant's ability to
work, then it does not satisfy the requirement of step two.” Id. (citing Page v. Astrue, 484 F.3d
at 1043).

“It is the claimant's burden to establish that his impairment or combination of

impairments are severe. Id. (citing Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir.2000)).
“Severity is not an onerous requirement for the claimant to meet, . . . but it is also not a toothless
standard.” Id. at 708.
The ALJ’s determination that Williams’s anxiety is non-severe is supported by
substantial evidence in the record.

Williams claims to have suffered from severe anxiety

throughout the relevant period, and she testified that anxiety caused her to have panic attacks (Tr.
39), crying spells two to three times a week (Tr. 39-40), irritable moods, (Tr. 39.) and memory
loss. (Tr. 40-41.) Williams did not present with or seek treatment for anxiety, however, until
November 2009, over a year after the onset date. (Tr. 261.) Previous treatment notes, though

27 

they noted a history of anxiety and continued Xanax usage, did not reflect objective anxiety
symptoms nor did they show Williams as ever having received formal psychiatric treatment for
anxiety. (Tr. 222; Tr. 252.) “While not dispositive, a failure to seek treatment may indicate the
relative seriousness of a medical problem” and “may be inconsistent with a finding of disability.”
Shannon, 54 F.3d at 487. Dr. Albano’s November 2009 letter, while it recommended Williams
be found disabled due to back pain and adverse reactions to her pain medication, did not
communicate that Williams suffered from anxiety, severe or otherwise. (Tr. 265.) Moreover,
while Dr. Albano diagnosed Williams with anxiety in June and December 2010, he did not note
any objective anxiety symptoms or alter her treatment.

(Tr. 331-332.)

If there is no

documentation in the record of psychological symptoms or ongoing psychological treatment, this
weighs against Williams’ contention that her anxiety is severe.
Williams did not seek treatment from a mental health specialist until she visited Dr.
Wang in February 2011, over a year after her initial disability application. (Tr. 142-43, 338.)
Dr. Wang, in an April 2011 letter, reported that Williams had major depression and panic
disorder due to problems with short-term memory, focus, and concentration. (Tr. 342.) He
concluded that she was totally disabled and unable to resume her prior employment or perform
any work requiring mental alertness and concentration.

(Tr. 342.)

As the ALJ properly

determined, Dr. Wang’s treatment notes do not reflect overt psychological symptoms “indicative
of such disabling limitations of function.” (Tr. 20.) Dr. Wang’s treatment notes reported that
Williams felt frustrated, anxious, and depressed. (Tr. 337-339.) They also noted Williams was
tearful and had “a lot of depression and anxiety.” (Tr. 339.) Dr. Wang’s treatment notes,
however, do not reflect that Williams had issues with short-term memory, focus, or
concentration. (Tr. 337-39.) Furthermore, the fact that previous mental health treatment was not

28 

aggressively sought until February 2011 undermined the weight accorded to Dr. Wang’s opinion.
Therefore, the ALJ was correct in finding that the medical treatment records do not reflect severe
symptoms and that Dr. Wang’s letter was created for the pursuit of Williams’s benefits rather
than in the course of medical treatment. See Shannon, 54 F.3d at 486. Dr. Sutton found that
“there [was] a reasonable probability of some limitations in concentration, persistence, and pace
related to medication and/or pain, which is not clearly treated as a mental disorder but it [was]
considered in the rating for concentration, persistence, and pace,” but there was “no evidence of
impaired intelligence or memory.”

Accordingly, the ALJ’s determination that Williams’s

anxiety was not a severe impairment is supported by substantial evidence in the record.
C.

Residual Functional Capacity and Ability to Perform Past Relevant Work
Finally, Williams contends that the ALJ’s RFC finding and determination that Williams

is able to perform her past relevant work is not supported by substantial evidence. Williams
notes that the ALJ’s decision is internally inconsistent by finding that she is able to do sedentary
work, but is also limited by a sit and stand option every hour. Williams also objects that the ALJ
found that she could return to her past relevant work without any discussion of how the RFC
related to the physical and mental demands of her former job as a loan originator and closer. The
Commissioner acknowledges that the ALJ’s decision is internally inconsistent, but asserts that
the decision is still supported by substantial evidence.

29 

RFC is defined as what the claimant can do despite his or her limitations, and includes an
assessment of physical abilities and mental impairments. 20 C.F.R. § 404.1545. The RFC is a
function-by-function assessment of an individual’s ability to do work related activities on a
regular and continuing basis.11 SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996).

It is the

ALJ’s responsibility to determine the claimant’s RFC based on all relevant evidence, including
medical records, observations of treating physicians and the claimant’s own descriptions of his
limitations. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001). Although the ALJ
bears the primary responsibility for assessing a claimant’s RFC based on all relevant evidence, a
claimant’s RFC is a medical question. Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir. 2001)
(citing Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001)). Therefore, an ALJ is required to
consider at least some supporting evidence from a medical professional. See Lauer, 245 F.3d at
704 (some medical evidence must support the determination of the claimant’s RFC). An RFC
determination made by an ALJ will be upheld if it is supported by substantial evidence in the
record. See Cox v. Barnhart, 471 F.3d 902, 907 (8th Cir. 2006).
The ALJ determined that Williams had the residual functional capacity to perform
sedentary work as defined in 20 C.F.R. 1527(a) with the need for a sit-stand option every hour of
the workday. (Tr. 19.)
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. 1567(a). The Social Security Administration has determined that

11

A “regular and continuing basis” means 8 hours a day, for 5 days a week, or an equivalent work
schedule. SSR 96-8p, 1996 WL 374184, at *1.

30 

In some disability claims, the medical facts lead to an assessment of RFC which is
compatible with the performance of either sedentary or light work except that the
person must alternate periods of sitting and standing. The individual may be able
to sit for a time, but must then get up and stand or walk for awhile before
returning to sitting. Such an individual is not functionally capable of doing either
prolonged sitting contemplated in the definition of sedentary work (and for the
relatively few light jobs which are performed primarily in a seated position) or the
prolonged standing or walking contemplated for most light work. . . . There are
some jobs in the national economy—typically professional and managerial
ones—in which a person can sit or stand with a degree of choice. If an individual
had such a job and is still capable of performing it, or is capable of transferring
work skills to such jobs, he or she would not be found disabled. However, most
jobs have ongoing work processes which demand that a worker be in a certain
place or posture for at least a certain length of time to accomplish a certain task.
SSR 83-12. In this case, the ALJ also received testimony from a VE. The ALJ asked the VE
whether a person with Williams’s age, education, and work experience who was capable of
performing sedentary work performing only repetitive tasks with a need for a sit-stand option
every fifteen minutes would be able to perform Williams’s past work. The VE responded in the
negative, because fifteen minute intervals of a sit-stand option would be impractical and
Williams’s work was complex not simple. The ALJ did not ask the VE information regarding
whether a sit-stand option every hour would allow a return to Williams’s past relevant work.
Next, the ALJ also determined that Williams could return to her past relevant work with
the RFC of sedentary work with a sit-stand option every hour. SSR 86–62 states that “[t]he
decision as to whether the claimant retains the functional capacity to perform past work which
has current relevance has far-reaching implications and must be developed and explained fully in
the disability decision.” SSR 82–62, 1982 WL 31386 at *3. “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.” Id. SSR 82–62 goes on to explain:

31 

In finding that an individual has the capacity to perform a past relevant job, the
determination or decision must contain among the findings the following specific findings of
fact:
1. A finding of fact as to the individual's RFC.
2. A finding of fact as to the physical and mental demands of the past
job/occupation.
3. A finding of fact that the individual's RFC would permit a return to his
or her past job or occupation.
Id. at *4.
The Eighth Circuit has consistently held that SSR 82–62 requires an ALJ 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 [the
ALJ] determines that [the claimant] is able to perform her past relevant work.” Groeper v.
Sullivan, 932 F.2d 1234, 1238 (8th Cir.1991) (emphasis added in original) (quoting Nimick v.
Sec. of Health and Human Servs., 887 F.2d 864, 866 (8th Cir.1989)); see also Kirby v. Sullivan,
923 F.2d 1323, 1326 (8th Cir.1991). The Groeper court cautioned that an ALJ's failure to fulfill
this obligation requires reversal. Groeper, 932 F.2d at 1238 (emphasis added) (citing Kirby, 923
F.2d at 1327); but see Battles v. Sullivan, 902 F.2d 657, 658–59 (8th Cir.1990) (Failure to make
explicit findings regarding a claimant's past relevant work was not reversible error where the
claimant failed to produce any medical evidence that established a disability before the
expiration of her insured status).
An ALJ's decision that a claimant can return to his past work must be based on more than
conclusory statements. The ALJ must specifically set forth the claimant’s limitations, both
physical and mental, and determine how those limitations affect the claimant's residual
functional capacity. The ALJ must also make explicit findings regarding the actual physical and
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mental demands of the claimant's past work. Then, the ALJ should compare the claimant's
residual functional capacity with the actual demands of the past work to determine whether the
claimant is capable of performing the relevant tasks. See Kirby v. Sullivan, 923 F.2d at 1326–27
(8th Cir.1991). 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
past work. Id. at 1327.
The ALJ stated that her decision was based on Williams’s Work History Report where
Williams indicated that in an eight hour workday, she spent two hours walking, three hours
standing, and three hours sitting. (Tr. 22, 184). Williams also reported that she lifted less than
ten pounds and that she wrote, typed, and handled small objects. (Tr. 22, 184.) The Court finds
that this was not substantial evidence to determine that Plaintiff could return to her past relevant
work as a loan originator with a sit-stand option every hour. The ALJ’s analysis was conclusory
and failed to include the details necessary to determine the physical and mental demands of
Williams’s past relevant work.

Therefore, this case will be reversed and remanded for

consideration consistent with this opinion.
Upon remand, the ALJ may refer to the job descriptions in the Dictionary of
Occupational Titles, for a definition of Williams’s job as it is performed in the national
economy. Sells v. Shalala, 48 F.3d 1044, 1047 (8th Cir. 1995). The Eighth Circuit has upheld an
ALJ’s decision that a claimant could perform her past relevant work based on the claimant’s
description of her past duties. See Zeiler v. Barnhart, 384 F.3d 932, 936 (8th Cir.2004) (where
ALJ relied upon claimant's own description of her past duties in finding that claimant never had
to lift more than ten pounds and stood much of the day, substantial evidence supported the ALJ's
characterization of her past work as requiring light exertion). In this case, the description given

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by Williams’s work history report did not provide sufficient detail of Williams’s job duties or
whether a sit-stand option would be practical.
VI.

CONCLUSION
Based on the foregoing, the undersigned finds that the ALJ’s RFC finding and

determination that Williams can return to her past relevant work is not supported by substantial
evidence and this case should be reversed and remanded.
Accordingly,
IT IS HEREBY ORDERED that the relief which Williams seeks in her Complaint and
Brief in Support of Complaint is GRANTED. [Docs. 1, 7].
IT IS FURTHER ORDERED the ALJ’s decision of April 29, 2011 is REVERSED and
REMANDED.
IT IS FURTHER ORDERED that a Judgment of Reversal and Remand will be filed
contemporaneously with this Memorandum and Order remanding this case to the Commissioner
of Social Security for further consideration pursuant to 42 U.S.C. § 405(g), sentence 4.

Dated this 29th day of November, 2012.

/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

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