Cross v. Astrue
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and this matter is remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further proceedings. A separate judgment in accordance with this Memorandum and Order will be entered.. Signed by District Judge Carol E. Jackson on 1/29/14. (KKS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN,1 Acting
Commissioner of Social Security,
Case No. 4:12-CV-2322 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court for review of an adverse ruling by the Social
I. Procedural History
On January 15, 2009, plaintiff Tracy Cross filed applications for supplemental
security income, Title VI, 42 U.S.C. §§ 1381 et seq., and disability insurance benefits,
Title II, 42 U.S.C. §§ 401 et seq., with an alleged onset date of September 1, 2008.2
(Tr. 170-72, 175-81). After plaintiff’s applications were denied on initial consideration
(Tr. 60-62, 80-83), she requested a hearing before an Administrative Law Judge (ALJ).
(Tr. 84-85). Following a hearing on December 14, 2009, (Tr. 46-59), the ALJ issued
a decision denying plaintiff’s applications on February 4, 2010. (Tr. 63-76). On May
12, 2011, the Appeals Council vacated the hearing decision and remanded plaintiff’s
case to the ALJ with instructions to “[g]ive further consideration to the treating source
opinions . . . and explain the weight given to such opinion evidence,” obtain additional
Carolyn W. Colvin became the Acting Commissioner of Social Security on
February 14, 2013. Pursuant to Fed.R.Civ.P. 25(d), she is substituted for Michael J.
Astrue as the defendant in this case.
Plaintiff subsequently amended the date of onset to October 2, 2008. (Tr. 191).
evidence, give further consideration to plaintiff’s residual functional capacity and, if
warranted, obtain supplemental evidence from a vocational expert.
Plaintiff and counsel appeared for an additional hearing on September 1, 2011. (Tr.
26-45). The ALJ again denied plaintiff’s applications on September 19, 2011. (Tr. 625). The Appeals Council denied plaintiff’s request for review on October 19, 2012.
(Tr. 1-5). Accordingly, the ALJ’s decision stands as the Commissioner’s final decision.
II. Evidence Before the ALJ
A. Disability Application Documents
In her Disability Report (Tr. 224-31), plaintiff listed her disabling conditions as
problems with her lower back and left leg. She stated that she could not sit or stand
for long and had to hold on to something when she stood or walked because her leg
sometimes gave out. She experienced back strain if she lifted more than 5 or 10
pounds. She was in constant pain and had been unable to go anywhere for the prior
four months due to the pain. Plaintiff took several medications, including those for the
treatment of allergies, migraines, overactive bladder, and Type 2 diabetes. In addition,
she took Naproxen, Hydrocodone and Tizanadine for pain, Gabapentin for treatment
of neuralgia, and Alprazolam and Cymbalta for the treatment of depression and
anxiety. (Tr. 247, 255).
Plaintiff completed a Function Report on February 21, 2009. (Tr. 204-14). Her
daily activities included getting her children up for school, eating meals, sleeping, and
watching television. She was unable to sleep for more than 1 or 2 hours due to pain.
She mainly ate frozen dinners, snacks, and sandwiches. The only housework she was
able to complete was washing dishes and cleaning the bathroom sink. She did not
need reminders to take her medication and was able to pay bills and use a checkbook.
She had not driven for 6 months. The only place she went on a regular basis was the
grocery store. She saw her brother and sister twice a week. She had no problems
getting along with others, including authority figures. She stated that she handled
stress with the help of medication but found changes in routine difficult. Plaintiff stated
that she could only walk 20 to 30 steps before she needed to rest for 10 minutes. She
had difficulties with lifting, climbing stairs, squatting, walking, sitting, bending,
kneeling, standing, reaching, and completing tasks; her memory and concentration
were affected by medication. She used a cane on a daily basis and a walker when in
extreme pain. She used to be able to skate, exercise, and dance, but was no longer
able to do so, and she had gained 100 pounds since her illness began.
Plaintiff was 40 years old at the time of the hearing on December 14, 2009. She
lived with her 9-year-old daughter, a 13-year-old niece of whom she had custody, and
her brother. (Tr. 54). She had a high school diploma and had worked as a certified
nursing assistant until 1996, after which she worked as a home health care provider
She initially stopped working because she suffered from migraine
headaches but then the agency she worked for closed. (Tr. 49). She had not worked
Plaintiff stated that she had sciatica which caused constant pain in her left leg
and made it difficult for her to walk. (Tr. 51). She had gained more than 30 pounds
due to inactivity since she stopped working. She had received four spinal injections but
they provided no relief. Her doctors recommended that she have surgery but she
could not find a surgeon who took Medicaid. (Tr. 50). She also suffered from migraine
headaches following a spinal tap in 2003 during which her spinal cord was punctured.
Plaintiff testified that she had constant pain in her back and leg, which was made
worse by sitting for a long time, standing, or going up and down stairs. Medication and
heating pads helped. She was most comfortable lying down. Her brother and children
handled most of the housework and her sister went grocery shopping for her. (Tr. 54).
At the time of the second hearing on September 1, 2011, plaintiff still resided
with her daughter and niece. Her brother was in the home “off and on to help out” and
her sister came over to cook, because plaintiff found it too painful to stand.
The ALJ asked plaintiff about the impact of her obesity on her daily activities.
She agreed that her weight aggravated her leg and back pain and made all activities
more difficult. She testified that she had constant stabbing pain in her lower back that
radiated into her left leg. (Tr. 33-34). The pain worsened when she sat for more than
half an hour, stood for 20 or 30 minutes, or walked a half block. (Tr. 34, 36). She
experienced “a lot” of relief from lying down with a heating pad and estimated that she
spent six hours out of eight lying down. (Tr. 38). Epidural and nerve root blocks were
helpful for a day or two. (Tr. 34-35). She used a cane because she fell often, but
using the cane caused numbness in her hands. (Tr. 35). She could not lift or carry
more than 10 to 15 pounds. (Tr. 37).
Plaintiff reported numbness, tingling and pain in her hands due to carpal tunnel
syndrome. She had participated in one session of physical therapy covered by her
insurance and did home exercises prescribed by the therapist, though they did not
provide relief. She wore a splint when sleeping and that did help. (Tr. 30). The carpal
tunnel condition made it difficult for her to manage buttons and to sweep or mop.
Plaintiff took medication for depression and anxiety but did not receive treatment
from a psychologist or psychiatrist. (Tr. 31-32). She stated that anxiety caused
“breakdowns,” during which she cried and felt like staying in her room. (Tr. 32, 35).
She was afraid to drive so her sister drove her to the grocery store. Plaintiff testified
that her medications caused drowsiness and made it hard for her to focus. (Tr. 34).
She usually fell asleep after taking her morning medications. (Tr. 38).
Dolores E. Gonzalez, M.Ed, a vocational expert, provided testimony regarding
the employment opportunities for an individual with plaintiff’s education, training and
work experience, with the ability to lift and carry 20 pounds occasionally, and 10
pounds frequently; who was able to stand, walk and sit for 6 hours out of 8; who could
occasionally climb stairs and ramps, stoop, kneel, crouch and crawl; was barred from
constant use of foot controls with the left leg; and was limited to occasional handling,
fingering, and manipulation with the left hand. Ms. Gonzalez opined that such an
individual would not be able to perform plaintiff’s past relevant work -- which she
characterized as medium, semi-skilled work -- but could perform light unskilled work,
including furniture rental consultant or tanning salon attendant. (Tr. 41-42). Both jobs
could still be performed by an individual who also had limitations on using the right
hand. The vocational expert was next asked to assume that the individual was limited
to lifting and carrying 10 pounds occasionally, and less than 10 pounds frequently, and
with the capacity to stand or walk 2 hours out of 8, and sit for 6 hours out of 8. Ms.
Gonzalez testified that such an individual could perform sedentary work, such as a callout operator or surveillance system monitor. In response to questioning by plaintiff’s
counsel, Ms. Gonzalez testified that these two positions could be performed by an
individual who needed to alternate between sitting and standing. An individual who
required rest periods beyond 30 minutes for lunch and two 15-minute breaks in a work
day would require accommodation to be employable. (Tr. 43-44).
C. Medical Records
Between January 2008 and June 2011, plaintiff had 29 office visits with her
primary care physician, William Wilcox, M.D.3 In January 2008, plaintiff expressed
concern about her weight, which exceeded 260 pounds, and complained of persistent
back pain associated with a urinary tract infection. Her migraines were controlled by
Topamax. (Tr. 283, 285). In September 2008, Dr. Wilcox noted that plaintiff had
bilateral carpal tunnel syndrome, which caused pain, numbness and tingling that
worsened with use. She received a refill of her prescription for Naproxen. (Tr. 289).
In October 2008, plaintiff twisted her left knee while lifting a patient. Dr. Wilcox
prescribed nonsteroidal anti-inflammatory medications and home exercises. (Tr. 291).
On October 11, 2008, plaintiff sought emergency care for pain in her knee, which she
rated at level 8 on a 10-point scale. She also complained of nagging back pain. X-rays
of the left knee showed no fracture, dislocation, or significant arthritic changes.
Plaintiff received an injection of Toradol. She was diagnosed with sciatica and referred
to an orthopedic surgeon. (Tr. 259-78). On October 17, 2008, plaintiff reported to Dr.
Wilcox that her insurance would not cover physical therapy or the orthopedic surgeon
to whom she was referred.
He prescribed Zanaflex, Naproxen, and
In January 2009, plaintiff reported to Dr. Wilcox that her back and leg pain were
getting worse. She saw a physical therapist one time, but her insurance did not
approve additional visits. Plaintiff was taking her prescribed medications consistently,
There are no records for medical care between January and June 2008.
but was still unable to work. She complained of weight gain. Dr. Wilcox noted that
plaintiff’s back pain had not improved with conservative treatment and that her
insurance did not cover physical therapy. He ordered a continuation of her current
medications and referred her to pain management services. (Tr. 295). An MRI of the
lumbar spine completed on February 3, 2009, disclosed evidence of instability at the
L4-5 level with neural foraminal encroachment, and a small disc herniation at T11-12
with migration of disc material. (Tr. 282).
Plaintiff saw pain management specialist Mahendra Gunapooti, M.D., on March
2, 2009. Plaintiff reported that she had pain in her low back and left leg, which she
rated at level 10 on a 10-point scale. She described the pain as stabbing, shooting,
tingling, and throbbing, and indicated that she also experienced numbness. The pain
was aggravated by sitting, standing, twisting, leaning, walking, working, and
occasionally by lying down. The pain was relieved by medication, hot packs and lying
down. Plaintiff indicated that she also experienced depressive mood, anxiety, sleep
disturbance, irritability, weakness, and muscle spasms.
neurological deficits. On examination, Dr. Gunapooti noted that plaintiff had normal
range of motion at the lumbar spine but experienced pain. Palpation over the lumbar
region produced slight tenderness. Motor strength, deep tendon reflexes, and sensory
responses were normal. Straight leg raising, Patrick’s test4 and Romberg’s sign5 were
Dr. Gunapooti diagnosed plaintiff with chronic severe lumbar
The Patrick (FABER) test is used to identify the presence of hip pathology by
attempting to reproduce pain in the hip, lumbar spine and sacroiliac region.
http://www.physio-pedia.com/FABER_Test (last visited on Nov. 29, 2012).
The Romberg test is used test to demonstrate the effect of posterior column
disease upon human upright posture control. http://www.physio-pedia.com/Search_
result?q=romberg (last visited Nov. 4, 2013)
radiculopathy, lumbar degenerative disc disease, diffuse disc bulging at L4-5, and
lumbar spondylosis. He recommended a lumbar epidural steroid block and directed
plaintiff to continue her home exercise program. (Tr. 322-23).
A nonexamining consultant6 completed a Physical Residual Functioning Capacity
Assessment (PRFCA) on March 19, 2009. Based on a review of the medical records,
the consultant determined that plaintiff had the capacity to occasionally lift or carry 10
pounds; frequently lift or carry less than 10 pounds; and stand or walk about 2 hours
and sit for about 6 hours in an 8-hour workday, with limitations on pushing and pulling
using the legs. She was restricted from crouching, crawling, kneeling, and balancing,
and could only occasionally climb a ramp or stairs. (Tr. 324-30).
On April 8, 2009, Dr. Gunapooti administered a lumbar epidural block to treat
severe lumbar radiculopathy. (Tr. 379). This was the first of nine injections Dr.
Gunapooti administered for the treatment of back and neck pain. (Tr. 378; 377; 375;
372; 404; 595; 593; 592). Plaintiff generally reported initial relief, followed by the
return of pain.
On April 8, 2009, plaintiff reported to Dr. Wilcox that she had
“always had back problems off and on, but never like this, with the pain down my leg
and unable to do anything.” (Tr. 336). She rated the pain as 9 on a 10-point scale
and complained of weakness and numbness in her left leg.
Dr. Wilcox assessed
plaintiff as having sciatica, possibly due to degenerative joint disease at intervertebral
facet joints. (Tr. 338-39). He stated that plaintiff could sit for 20 minutes, stand for
The form indicates that the PRFCA was completed by a Single Decisionmaker
(SDM). Missouri is one of 20 states in which nonmedical disability examiners are
authorized to make certain initial determinations without requiring a medical or
psychological consultant’s signature. See Office of the Inspector General, Audit Report
Single Decisionmaker Model – Authority to Make Certain Disability Determinations
without a Medical Consultant’s Signature (Aug. 2013).
5 to 10 minutes, walk for 5 minutes, and lift 5 to 10 pounds. On examination, Dr.
Wilcox observed that plaintiff was limping and that straight-leg raising produced pain
at 90 degrees. He also noted unspecified muscle weakness. (Tr. 338). Plaintiff’s
weight exceeded 275 pounds.
On June 23, 2009, after two more lumbar blocks, Dr. Wilcox noted that straight
leg raising was positive at 45 degrees. Plaintiff’s reflexes, strength, and sensation were
normal. He decided to refer plaintiff to a spinal surgeon. (Tr. 343). On July 22, 2009,
Dr. Wilcox noted that plaintiff was using up her prescribed pain medications too quickly.
She reported that was unable to locate a surgeon that accepted her insurance. On
September 1, 2009, Dr. Wilcox noted that plaintiff’s back pain, while still constant, was
perhaps a little better. Plaintiff still experienced pain, numbness, and tingling in her
left leg from her low back to her ankle. (Tr. 354).
On August 13, 2009, Dr. Gunapooti noted that plaintiff had severe low back and
leg pain, with intermittent tingling and numbness, but no neurological deficits. (Tr.
373). She had decreased range of motion at the lumbar spine and slight tenderness
on palpation. Results of straight leg raising and Patrick’s test were both negative. Dr.
Gunapooti’s impression was lumbar spondylosis, lumbar radiculopathy, lumbar
degenerative disc disease, and a history of multilevel lumbar diffuse disc bulging.
On November 9, 2009, Dr. Wilcox gave plaintiff written instructions to address
The treatment notes do not explain why plaintiff
received this information.
On November 19, 2009, Dr. Gunapooti completed a Physician’s Assessment for
Social Security Claim. (Tr. 391). Plaintiff’s diagnoses at that time were severe chronic
lumbar radiculitis, lumbar spondylosis, and L4-5 diffuse disc bulging.
symptoms were severe chronic low back pain with radiation to her legs down to her
feet. She was treated with Vicodin and Zanaflex. Her insurance precluded physical
therapy or a neurosurgical consultation. Dr. Gunapooti opined that plaintiff might need
to rest for 10 to 15 minutes every 2 hours, with intermittent changes in position. She
had low tolerance for sitting or standing and could not lift more than 10 pounds.
Plaintiff was unable to work due to the intensity of her back pain caused by severe
Dr. Wilcox completed a Physician’s Assessment for Social Security Claim on
December 7, 2009. (Tr. 392). He listed plaintiff’s diagnoses as degenerative disc
disease, L4-5 bulging disc, bilateral facet joint disease, and probable instability at L4-5.
According to Dr. Wilcox, plaintiff was restricted from twisting, bending, lifting more
than 20 pounds, and standing more than 10 minutes.
On January 12, 2010, Dr. Wilcox noted that plaintiff’s back pain persisted and
was present on the right side as well as the left. (Tr. 407-15). On February 8, 2010,
Dr. Wilcox noted that plaintiff had back, hip, and knee pain, and that her insurance
would not pay for Flexeril, Zanaflex, and Soma. (Tr. 416). On February 18, 2010, Dr.
Gunapooti noted that plaintiff had chronic low back pain with radiation to both legs,
more so on the left side. The pain was slowly increasing. In addition, plaintiff had
chronic neck pain. (Tr. 402). An MRI on March 1, 2010, disclosed mild reversal of the
cervical curvature and diffuse disc dessication throughout the cervical spine. There
was mild loss of disc height at C4-5 and C5-6 and hypertrophic spurs. The MRI showed
mild central canal stenosis at C4-5, C6-7, and C7-T1, and severe central canal stenosis
at C5-6. (Tr. 400).
On March 12, 2010, plaintiff reported to Dr. Wilcox that her hands and most of
her body had been aching for two days. Her back pain persisted and was present on
the right side as well as the left. (Tr. 437). She also complained of pain in her arm.
On April 7, 2010, Dr. Wilcox completed a depression questionnaire. Plaintiff indicated
that she was sad or irritable, had lost interest in activities, had changes in appetite and
sleep, was agitated or restless, had difficulty concentrating, constant fatigue, frequent
feelings of worthlessness or guilt, and frequent thoughts of death or suicide. (Tr. 446).
Dr. Wilcox prescribed Cymbalta to address depression and, on May 6, 2010, plaintiff
reported that she was more social, less irritable, and struggling less with feelings of
worthlessness or guilt. (Tr. 455).
On June 30, 2010, Matthew Harms, M.D., of the Washington University
Neuromuscular Clinic evaluated plaintiff’s lower back pain. (Tr. 429-31). Dr. Harms
noted that plaintiff had lifelong trouble with low back pain that had become particularly
pronounced over a two-year period. The pain was centered in the left lower spine with
occasional radiation to the right hip and down the left leg.
She had occasional
weakness in that her left leg sometimes gave out. She experienced occasional stress
incontinence in response to “bad” muscle spasms. On examination, Dr. Harms noted
that plaintiff had nearly full strength of upper and lower extremities.
decreased sensation in the right toes and entire left leg. Deep tendon reflexes could
not be elicited, “even with Jendrassik maneuver.”7 She had an antalgic gait. She was
able to stand briefly on her heels and toes. In summary, Dr. Harms found that plaintiff
If deep tendon reflexes appear to be absent, they may be elicited by
augmentation with Jendrassik’s maneuver, such as having the patient clasp hands
together tightly and try vigorously to pull apart while a tendon in the lower extremity
is tapped. See Merck Manual of Diagnosis and Therapy 1592, 1602 (19th ed. 2011).
had chronic low back pain with distal neuropathy. He described the sensory loss in the
left leg as unusual and unlikely to be related to peripheral nerve damage. He ordered
nerve conduction studies to investigate radiculopathy and blood work to look for
reversible causes of the neuropathy.
A clinical electromyography evaluation completed on August 24, 2010, provided
“evidence for sensory neuropathy and moderate left carpal tunnel syndrome.” (Tr.
X-rays of the cervical and lumbar spine on October 18, 2010, showed
reversal of the normal cervical curvature and straightening of the normal lordotic
curvature, in addition to torticollis8 and rotoscoliosis.9
evidence of degenerative disc disease at C4-5 and C5-6 and, to a lesser degree at C6-7
and C7-T1; plaintiff had mild degenerative disc disease throughout the lumbar spine,
which was greatest at L2-3. In addition, plaintiff had mild bilateral neuroforaminal
narrowing, spondylosis, spondylolisthesis,10 and bilateral facet hypertrophy.
On November 22, 2010, Dr. Wilcox noted that plaintiff was using a cane because
she was getting more unsteady on her feet. (Tr. 517). She also had pain from her
elbows to her hands.
On January 24, 2011, Dr. Wilcox noted that plaintiff’s depression had worsened
and he increased the dosage of her Cymbalta. (Tr. 530). On June 29, 2011, Dr.
Gunapooti listed plaintiff’s active problems as: cervical radiculopathy; cervical, lumbar,
A contraction of the muscles of the neck, chiefly those supplied by the spinal
accessory nerve, in which the head is drawn to one side. Stedman’s Med. Dict. 1847
(27th ed. 2000).
Combined lateral and rotational deviation of the spinal column. Stedman’s Med.
Dict. 1581 (27th ed. 2000).
Spondylolisthesis is a condition in which a bone (vertebra) in the spine slips out
of the proper position onto the bone below it. http://www.ncbi.nlm.nih.gov/pubmed
health/PMH0002240/ (last visited on Oct. 5, 2012).
and lumbosacral disc degeneration; neuritis; and spondylosis without myelopathy. He
gave plaintiff a cervical epidural injection. (Tr. 596).
Dr. Wilcox completed a second disability assessment on August 12, 2011. (Tr.
598). He listed plaintiff’s diagnoses as chronic low back pain and bilateral carpal tunnel
syndrome, with muscle spasms, nerve pain down the left leg, and numbness of fingers.
Dr. Wilcox opined that plaintiff would be able to work for 20 to 30 minutes before she
needed to “lie down and/or walk typically for an hour.” He stated that she was unable
III. The ALJ’s Decision
In the decision issued on September 19, 2011, the ALJ made the following
Plaintiff met the insured status requirements through December 31,
Plaintiff has not engaged in substantial gainful activity since October 2,
2008, the amended date of onset.
Plaintiff has the following severe impairments: residuals from bilateral
carpal tunnel syndrome, degenerative disc disease of the cervical and
lumbar spine, and obesity.
Plaintiff does not have an impairment or combination of impairments that
meets or substantially equals one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1.
Plaintiff has the residual functional capacity to perform sedentary work
with the following limitations: she can never climb ladders, ropes, or
scaffolding, and can occasionally climb steps or ramps; she can
occasionally stoop, kneel or crouch; she may not engage in constant use
of foot controls on the left side; and is limited to occasional handling,
fingering, and gross and fine manipulation on both sides. She must avoid
concentrated exposure to extreme cold, unprotected heights, and
Plaintiff is unable to perform her past relevant work.
Plaintiff was 39 years old, a younger individual, on the alleged ate of
Plaintiff has a high school education and can communicate in English.
Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding of “not disabled” whether or not plaintiff has
transferable job skills.
Considering plaintiff’s age, education, work experience and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that plaintiff can perform.
Plaintiff has not been under a disability, as defined in the Social Security
Act, from October 2, 2008, through the date of the decision.
IV. Legal Standards
The Court must affirm the Commissioner’s decision “if the decision is not based
on legal error and if there is substantial evidence in the record as a whole to support
the conclusion that the claimant was not disabled.” Long v. Chater, 108 F.3d 185, 187
(8th Cir. 1997). “Substantial evidence is less than a preponderance, but enough so
that a reasonable mind might find it adequate to support the conclusion.” Estes v.
Barnhart, 275 F.3d 722, 724 (8th Cir. 2002) (quoting Johnson v. Apfel, 240 F.3d 1145,
1147 (8th Cir. 2001)). If, after reviewing the record, the Court finds it possible to draw
two inconsistent positions from the evidence and one of those positions represents the
Commissioner’s findings, the Court must affirm the decision of the Commissioner.
Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011) (quotations and citation omitted).
To be entitled to disability benefits, a claimant must prove she is unable to
perform any substantial gainful activity due to a medically determinable physical or
mental impairment that would either result in death or which has lasted or could be
expected to last for at least twelve continuous months. 42 U.S.C. § 423(a)(1)(D),
(d)(1)(A); Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009). The Commissioner
has established a five-step process for determining whether a person is disabled. See
20 C.F.R. § 404.1520; Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009). “Each step
in the disability determination entails a separate analysis and legal standard.” Lacroix
v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006).
Steps one through three require the claimant to prove (1) she is not currently
engaged in substantial gainful activity, (2) she suffers from a severe impairment, and
(3) her disability meets or equals a listed impairment. Pate-Fires, 564 F.3d at 942.
If the claimant does not suffer from a listed impairment or its equivalent, the
Commissioner’s analysis proceeds to steps four and five. Id.
“Prior to step four, the ALJ must assess the claimant’s residual functioning
capacity (‘RFC’), which is the most a claimant can do despite her limitations.” Moore,
572 F.3d at 523 (citing 20 C.F.R. § 404.1545(a)(1)).
assessment of the extent to which an individual’s
“RFC is an administrative
impairment(s), including any related symptoms, such as pain, may cause physical or
mental limitations or restrictions that may affect his or her capacity to do work-related
physical and mental activities.” Social Security Ruling (SSR) 96-8p, 1996 WL 374184,
*2. “[A] claimant’s RFC [is] based on all relevant evidence, including the medical
records, observations by treating physicians and others, and an individual’s own
description of his limitations.” Moore, 572 F.3d at 523 (quotation and citation omitted).
In determining a claimant’s RFC, the ALJ must evaluate the claimant’s credibility.
Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Pearsall v. Massanari, 274 F.3d
1211, 1217 (8th Cir. 2002). This evaluation requires that the ALJ consider “(1) the
claimant’s daily activities; (2) the duration, intensity, and frequency of the pain; (3)
the precipitating and aggravating factors; (4) the dosage, effectiveness, and side
effects of medication; (5) any functional restrictions; (6) the claimant’s work history;
and (7) the absence of objective medical evidence to support the claimant’s
complaints.” Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011) (quotation and
“Although ‘an ALJ may not discount a claimant’s allegations of
disabling pain solely because the objective medical evidence does not fully support
them,’ the ALJ may find that these allegations are not credible ‘if there are
inconsistencies in the evidence as a whole.’” Id. (quoting Goff v. Barnhart, 421 F.3d
785, 792 (8th Cir. 2005)). After considering the seven factors, the ALJ must make
express credibility determinations and set forth the inconsistencies in the record which
caused the ALJ to reject the claimant’s complaints. Singh v. Apfel, 222 F.3d 448, 452
(8th Cir. 2000); Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998).
At step four, the ALJ determines whether claimant can return to her past
relevant work, “review[ing] [the claimant’s] [RFC] and the physical and mental
demands of the work [claimant has] done in the past.” 20 C.F.R. § 404.1520(e). The
burden at step four remains with the claimant to prove her RFC and establish that she
cannot return to her past relevant work. Moore, 572 F.3d at 523; accord Dukes v.
Barnhart, 436 F.3d 923, 928 (8th Cir. 2006); Vandenboom v. Barnhart, 421 F.3d 745,
750 (8th Cir. 2005).
If the ALJ holds at step four of the process that a claimant cannot return to past
relevant work, the burden shifts at step five to the Commissioner to establish that the
claimant maintains the RFC to perform a significant number of jobs within the national
economy. Banks v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001). See also 20 C.F.R.
If the claimant is prevented by her impairment from doing any other work, the
ALJ will find the claimant to be disabled.
Plaintiff asserts that the ALJ improperly evaluated the opinions of her treating
physicians, Dr. Wilcox and Dr. Gunapooti, whose assessments of her limitations
precluded employment. (Tr. 391, 392, 598). In particular, plaintiff asserts the ALJ
erred by failing to define the weight he gave the treating source opinions, improperly
failed to give the opinions controlling weight, and failed to provide good reason for
discounting the opinions.
Generally, a treating physician’s opinion is given more weight than other sources
in a disability proceeding. Anderson v. Astrue, 696 F.3d 790, 793 (8th Cir. 2012);
(citing 20 C.F.R. § 404.1527(c)(2)). Indeed, when the treating physician’s opinion is
supported by proper medical testing, and is not inconsistent with other substantial
evidence in the record, the ALJ must give the opinion controlling weight.
“However, [a]n ALJ may discount or even disregard the opinion of a treating physician
where other medical assessments are supported by better or more thorough medical
evidence, or where a treating physician renders inconsistent opinions that undermine
the credibility of such opinions.” Wildman v. Astrue, 596 F.3d 959, 964 (8th Cir. 2010)
(alteration in original) (internal quotation omitted). Ultimately, the ALJ must “give
good reasons” to explain the weight given the treating physician’s opinion. 20 C.F.R.
§ 404.1527(c)(2). An ALJ may not substitute his own opinions for the opinions of
medical professionals. Ness v. Sullivan, 904 F.2d 432, 435 (8th Cir. 1990) (ALJ erred
in substituting his opinion that plaintiff did not seem depressed at hearing for doctor’s
assessment of plaintiff’s mental health); see also Pate-Fires v. Astrue, 564 F.3d 935,
946-47 (8th Cir. 2009) (ALJs may not “play doctor”); Rohan v. Chater, 98 F.3d 966,
970 (7th Cir. 1996) (“ALJs must not succumb to the temptation to play doctor and
make their own independent medical findings.”).
Failure to explain weight given to treating source opinions
As discussed below, the ALJ did not give controlling weight to the opinions of
Drs. Wilcox and Gunapooti. Plaintiff argues, and defendant essentially concedes, that
the ALJ never explained what, if any, weight he gave their opinions. Plaintiff argues
that this failure violates the requirement to “evaluate every medical opinion” received
See 20 C.F.R. § 404.1527(c).
It is clear, however, that the ALJ
“evaluated” the opinions, albeit unfavorably.
The record contains no other medical assessment of plaintiff’s limitations. Thus,
plaintiff argues, the ALJ’s failure to assign a weight to the treating source opinions
casts doubt on the basis for his RFC determination.
“The ALJ bears the primary
responsibility for determining a claimant’s residual functional capacity based on all
relevant evidence, but residual functional capacity remains a medical question.”
Krogmeier v. Barnhart, 294 F.3d 1019, 1023 (8th Cir. 2002) (emphasis added).
Defendant argues that the record need not contain a medical opinion setting forth
specific limitations in order to assess a claimant’s RFC. Defendant is correct that 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) (alteration in original; internal quotation omitted). But
that is not the same as saying that an ALJ may discount all medical opinions and rely
on his own determinations from the medical evidence. Nevland v. Apfel, 204 F.3d 853,
858 (8th Cir. 2000) (ALJ may not draw his own inferences from the medical reports);
Martise, 641 F.3d at 927 (no error in discounting opinion of treating physician where
ALJ credited opinions of other treating and examining physicians). It appears that this
is what occurred in this case and the matter must be remanded for further
Failure to give controlling weight to treating sources
An ALJ may “discount or even disregard the opinion of a treating physician
where other medical assessments are supported by better or more thorough medical
evidence, or where a treating physician renders inconsistent opinions that undermine
the credibility of such opinions.” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005)
(quoting Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000)). If the doctor’s opinion
is “inconsistent with or contrary to the medical evidence as a whole, the ALJ can accord
it less weight.” Travis v. Astrue, 477 F.3d 1037, 1041 (8th Cir. 2007) (citation omitted).
Here, the ALJ discounted the limitations imposed by Drs. Wilcox and Gunapooti
as inconsistent with their own clinical observations. (Tr. at 19) (describing medical
source statements as “a simple recitation of the [plaintiff’s] reports to [her] doctors
who may be motivated by sympathy toward a good patient or simply to avoid saying
no.”). As the ALJ noted, both physicians routinely found that plaintiff had normal
motor strength, sensation, and deep tendon reflexes. However, Dr. Wilcox also found
that plaintiff had antalgic gait, positive straight leg raising and painful range of motion,
(see e.g., Tr. 343, 349, 357, 384), and Dr. Gunapooti noted that plaintiff had
decreased range of motion and tenderness on palpation. (See, e.g., Tr. 322, 373).
The ALJ did not cite a medical source for his conclusion that these clinical observations,
taken as a whole, are inconsistent with the limitations imposed by plaintiff’s treating
physicians. The Court concludes that the ALJ improperly substituted his opinion for
those of the medical professionals.
The ALJ also found that the medical source statements were unsupported by
objective medical evidence. (Tr. 19). An MRI in February 2009 found instability at the
L4-L5 level with right neural foraminal encroachment and a small central T11-T12 disc
herniation with superior migration of disc material. (Tr. 282). The following year, an
MRI of the cervical spine disclosed a mild reversal of normal cervical curvature, diffuse
disc dessication, mild loss of disc height and hypertrophic spurs. In addition, there was
central canal stenosis throughout the cervical spine, ranging from mild to severe. (Tr.
400). X-rays in October 2010 showed structural anomalies of the cervical11 and lumbar
spine12 with evidence of degenerative disc disease, spondylosis, spondylolisthesis, and
These objective clinical findings are at least
consistent with the opinions of plaintiff’s treating physicians. In the absence of a
contrary medical interpretation of the clinical findings, the ALJ appears to have relied
on his own reading of this evidence to conclude that the treating source opinions were
not supported by objective medical evidence.
C. Failure to provide “good reason” for discounting opinions
The ALJ made a number of medical interpretations of evidence in the record.
For example, Dr. Harms recorded that plaintiff had “decreased pinprick of the entire
left leg” which he opined was “unusual . . . and unlikely to be related to peripheral
Reversal of the normal curvature of the cervical spine, torticollis, and mild
Straightening of normal lordotic curvature and mild rotoscoliosis;
spondylolistheis of L4 on 5; mild degenerative disc disease and spondylosis throughout
lumbar spine, worst at L2-3; mild rotoscoliosis; and bilateral facet hypertrophy at L4-5
nerve compression.” (Tr. 430-31). The ALJ interpreted Dr. Harms’s statement as
follows: “In other words, the claimant’s story to the doctor about her reported sensory
deficits did not fit any known neurological abnormality, but it was consistent with an
effort to appear . . . more limited than any actual pathological findings would reveal.”
(Tr. 18). To support his conclusion, the ALJ noted that the electromyography did not
show any definitive clinical abnormalities of the left leg. (Tr. 17). However, the left
sural SNAP13 and tibial H-reflexes were absent. (Tr. 425). These clinical findings may
or may not support plaintiff’s reported decreased sensation in her left leg -- the record
does not contain a physician’s assessment of these test results. In the absence of a
medical interpretation of these findings, the ALJ erred in concluding that plaintiff was
fabricating the experience.14 The ALJ similarly reached an improper medical conclusion
with respect to plaintiff’s treatment for plantar fasciitis,15 stating that “[i]t is very
inconsistent to have severe foot pain if one is unable to stand or walk for more than
brief periods.” (Tr. 19). Again, the ALJ’s conclusion is not supported by citation to any
medical authority. If the ALJ relied on his independent analysis of the medical record
in determining the weight to give to treating-source opinions, that was error.
Based on the errors detailed above, this matter will be remanded for
reevaluation of the treating source opinions. If clarification is required in order to
SNAP = sensory nerve action potential. Tr. 426. The sural nerve is a nerve
in the leg.
In addition, Dr. Harms was unable to elicit deep tendon reflexes even with the
Jendrassik maneuver, a maneuver intended to distract a patient’s awareness etc..
Dr. Wilcox’s office issued plaintiff instructions for caring for plantar fasciitis on
November 9, 2009. (Tr. 388-90). The Court has not found any other mention of this
condition in the record, including the extensive treatment notes for that office visit or
any other. So, the reason for issuing these instructions is unknown.
properly assess plaintiff’s functional limitations, the ALJ should seek additional
statements from plaintiff’s treating physicians or obtain a consultative evaluation.
The Court takes the opportunity to address another issue: plaintiff was evaluated
by Dr. Harms through the Washington University School of Medicine Neuromuscular
Clinic. He noted that plaintiff would need a referral to a neurosurgeon if further testing
revealed that she had acute nerve loss. (Tr. 431). Plaintiff had informed Dr. Harms
that she was unable to find a neurosurgeon that would accept Medicaid. The ALJ found
that her statement was “inconsistent with the fact that Washington University School
of Medicine accepted [plaintiff] as a Medicaid patient.” (Tr. 18). The ALJ did not
explain the basis for this conclusion, which is called into question by Dr. Harms himself,
who stated that he had “no additional ideas about how to find [a neurosurgeon] that
takes her insurance.” (Tr. 429). The ALJ appears to have relied on this improper
inference in assessing plaintiff’s credibility and should refrain from doing so on remand.
For the reasons discussed above, the Court finds that the Commissioner’s
decision is not supported by substantial evidence in the record as a whole.
IT IS HEREBY ORDERED that the decision of the Commissioner is reversed
and this matter is remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g)
for further proceedings.
A separate judgment in accordance with this Memorandum and Order will be
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 29th day of January, 2014.
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