Lesueur v. Colvin

Filing 25

MEMORANDUM AND ORDER re: 17 1 ORDERED that the relief which Lesueur seeks in his Complaint and Brief in Support of Complaint is GRANTED in part and DENIED in part. [Docs. 1, 17] FURTHER ORDERED the ALJs decision of March 26, 2012 is REVERSED and REMANDED for a consultative examination of Lesueurs non-exertional functional limitations and a new residual functional capacity determination. 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. cc: commissioner. Signed by Magistrate Judge Nannette A. Baker on 1/8/14. (CEL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

DWAYNE LESUEUR,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No. 4:13-CV-347-NAB

MEMORANDUM AND ORDER
The following opinion is intended to be the opinion of the Court judicially reviewing the
denial of Dwayne Lesueur’s (“Lesueur”) application for disability insurance benefits and
supplemental security income (“SSI”) under the Social Security Act. The Court has jurisdiction
over the subject matter of this action under 42 U.S.C. § 405(g). The parties have consented to
the exercise of authority by the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
[Doc. 8.] The Court has reviewed the parties’ briefs and the entire administrative record,
including the hearing transcript and the medical evidence. The Court has now heard oral
argument on the pleadings of the parties and the Court now issues its ruling in this opinion.
I.

Issues for Review
Lesueur presents four errors for review: First, Lesueur contends that the administrative

law judge’s (“ALJ”) assessment of his mental impairments is not supported by substantial
evidence. Second, the ALJ erred in her evaluation of the medical opinions of Lesueur’s treating
and examining physicians. Third, the ALJ erred in not considering Lesueur’s work history when

assessing credibility. Fourth, the ALJ’s residual functional capacity (“RFC”) determination did
not reflect the weight given to the opinion of the state agency medical consultant.
II.

Standard of Review
This Court reviews decisions of the ALJ to determine whether the decision is supported

by substantial evidence in the record as a whole. 42 U.S.C. § 405(g). 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). To determine whether the Commissioner’s final decision is supported by substantial
evidence, the Court is required to review the administrative record as a whole and to consider:
(1) The findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating physicians;
(4) The subjective complaints of pain and description of the claimant’s physical
activity and impairment;
(5) The corroboration by third parties of the claimant’s physical impairment;
(6) The testimony of vocational experts based upon proper hypothetical questions
which fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dept. of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980); Cruse v.
Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989). Additionally, an ALJ’s decision must comply
“with the relevant legal requirements.” Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008).

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III.

Discussion
Based on all of the evidence in the record, the Court finds that the ALJ’s RFC

determination and credibility assessment are not supported by substantial evidence in the record
as a whole. Thus, substantial evidence does not support the ALJ’s final decision that Lesueur is
not disabled and the final decision must be reversed.
A.

RFC Determination

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(a), 416.945(a).
The RFC is a function-by-function assessment of an individual’s ability to do work related
activities on a regular and continuing basis.1 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). 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 Lesueur had the severe impairments of depression, anxiety, and
schizoaffective disorder, but that he did not have an impairment or combination of impairments
that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Tr. 18.) The ALJ found that Lesueur had the RFC to perform a full range of work
limited to routine, repetitive tasks. (Tr. 20.) She specifically stated that Lesueur was capable of
work that included frequent interaction with the general public, co-workers, and supervisors.

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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.

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(Tr. 20.) The ALJ’s RFC determination, including the assessment of the medical evidence,
testimony, and Lesueur’s credibility is inconsistent with the administrative record.
First, the ALJ’s determinations regarding the medical evidence are inconsistent with the
evidence in the record. The ALJ’s assertion that Lesueur “may not even have a psychological
impairment that imposes much in terms of functional limitation” is not supported by the
objective medical evidence. The record shows that Lesueur has been hospitalized for psychiatric
treatment three times since the alleged onset date of disability. (Tr. 254-275, 339-369, 380-393.)
Lesueur received psychiatric treatment continuously since the alleged onset date of disability
from the Hopewell Center. (Tr. 281-289, 318-337, 374-379.) Although Lesueur reported noncompliance with medication, the treatment notes cited indicate that the partial compliance with
medication could be attributable to side effects. (Tr. 319.)
The ALJ’s decision gave the medical opinions of Dr. Surenda Chaganti, Dr. Arif Habib,
and Dr. Erickson Smith little to no weight, stating that the opinions were not generally supported
by the record as a whole and were contradicted by Lesueur’s stated “social” and “acknowledged”
activities, and the doctor’s treatment records. (Tr. 22-23.) 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 wellsupported 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),
416.927(c)(2); SSR 96-2p; see also Hacker, 459 F.3d at 937. “Whether the ALJ grants a treating
physician’s opinion substantial or little weight, the regulations provide that the ALJ must ‘always

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give good reasons’ for the particular weight given to a treating physician’s evaluation.” Prosch
v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000). “It is the ALJ's function to resolve conflicts
among the opinions of various treating and examining physicians.” Wagner v. Astrue, 499 F.3d
842, 848 (8th Cir. 2007). “The ALJ may reject the conclusions of any medical expert, whether
hired by the claimant or the government, if [the conclusions] are inconsistent with the record as a
whole.” Id. “Unless, a treating source’s opinion is given controlling weight, the administrative
law judge must explain in the decision the weight given to the opinions of a State agency
medical or psychological consultant or other program physician, psychologist or other medical
specialist.” 20 C.F.R. §§ 404.1527(e)(2)(ii); 416.927(e)(2)(ii).
As an initial matter, Dr. Chaganti and Dr. Habib did not prepare “opinions” regarding
Lesueur’s functional limitations for work-related activities.

The record only contains their

treatment notes from Hopewell, St. Alexius Hospital, and St. Louis University Hospital.
Therefore, it is unclear what “opinions” given by these doctors do not support their treatment
notes. Further, as explained in more detail below, the ALJ’s credibility determinations regarding
Lesueur’s daily activities and social life are not supported by substantial evidence and cannot be
used to discount the physicians’ treatment records. Thus, the ALJ has failed to give a good
reason as to why the treatment notes of Dr. Chaganti and Dr. Habib were given little weight.
The treatment notes of Lesueur’s treating and examining physicians, including Dr. Chaganti, Dr.
Habib, Dr. Goswani, and Dr. Smith are consistent with each other and the record as a whole.
The ALJ gave moderate weight to the opinion of Social Security medical consultant Dr.
Sherry Bassi. Dr. Bassi did not examine Lesueur, therefore her opinion was based on the
medical evidence in the record until October 27, 2010, well before most of the medical treatment
documented in the record occurred. “The opinion of a consulting physician who examines a

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claimant once or not at all does not generally constitute substantial evidence.” Jenkins v. Apfel,
196 F.3d 922, 925 (8th Cir. 1999). Based on the foregoing, it is unclear the basis for the ALJ’s
RFC determination.
It is true that “[a] disability claimant has the burden to establish [his] RFC.”
Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004) (citing Masterson v. Barnhart, 363
F.3d 731, 737 (8th Cir. 2004)). However, the ALJ has an independent duty to develop the record
despite the claimant’s burden. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004). RFC is a
medical question. Eichelberger, 390 F.3d at 591. “Some medical evidence must support the
determination of the claimant’s RFC.” Eichelberger, 390 F.3d at 591 (citing Dykes v. Apfel, 223
F.3d 865, 867 (8th Cir. 2000)) (internal quotation marks omitted). “[T]he ALJ should obtain
medical evidence that addresses the claimant’s ‘ability to function in the workplace.’” Id.
(quoting Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2003)).
In some cases, the duty to develop the record requires the ALJ to obtain additional
medical evidence, such as a consultative examination of the claimant, before rendering a
decision. See 20 C.F.R. § 404.1519a(b). “The ALJ is required to order medical examinations
and tests only if the medical records presented to him do not give sufficient medical evidence to
determine whether the claimant is disabled.” McCoy v. Astrue, 648 F.3d 605, 612 (8th Cir.
2011); see also Freeman v. Apfel, 208 F.3d 687, 692 (8th Cir. 2000) (“‘[I]t is reversible error for
an ALJ not to order a consultative examination when such an evaluation is necessary for him to
make an informed decision.’” (quoting Dozier v. Heckler, 754 F.2d 274, 276 (8th Cir. 1985))).
Therefore, “[a]n ALJ is permitted to issue a decision without obtaining additional medical
evidence so long as other evidence in the record provides a sufficient basis for the ALJ’s
decision.” Anderson v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995).

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In this case, the Court finds that the ALJ had a duty to further develop the record to
obtain medical evidence to assist in the determination of the RFC in this matter. There is no
medical evidence in the record to support an RFC determination that Lesueur is capable of work
that includes frequent interaction with the general public, co-workers, and supervisors.
B.

Credibility Determination

Second, the ALJ’s credibility determination is also inconsistent with the evidence in the
record as a whole. While the claimant has the burden of proving that the disability results from a
medically determinable physical or mental impairment, direct medical evidence of the cause and
effect relationship between the impairment and the degree of claimant’s subjective complaints
need not be produced.” Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). A claimant's
subjective complaints may not be disregarded solely because the objective medical evidence
does not fully support them. Id. The absence of objective medical evidence is just one factor to
be considered in evaluating the claimant’s credibility and complaints. Id. The ALJ must fully
consider all of the evidence presented relating to subjective complaints, including the claimant's
prior work record, and observations by third parties and treating and examining physicians
relating to such matters as:
(1) the claimant’s daily activities;
(2) the subjective evidence of the duration, frequency, and intensity of the
claimant’s pain;
(3) any precipitating or aggravating factors;
(4) the dosage, effectiveness, and side effects of any medication; and
(5) the claimant’s functional restrictions

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Id. The ALJ must make express credibility determinations and set forth the inconsistencies in
the record which cause him to reject the claimant’s complaints. Masterson, 363 F.3d at 738. “It
is not enough that the record contains inconsistencies; the ALJ must specifically demonstrate that
he considered all of the evidence.” Id. The ALJ, however, “need not explicitly discuss each
Polaski factor.” Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir. 2004.) The ALJ need only
acknowledge and consider those factors. Id. Although credibility determinations are primarily
for the ALJ and not the court, the ALJ’s credibility assessment must be based on substantial
evidence. Rautio v. Bowen, 862 F.2d 176, 179 (8th Cir. 1988).
The ALJ found Lesueur not credible citing an “active” social life and documented noncompliance.

(Tr. 18-19, 23.)

The ALJ decision repeatedly mentions “social activities,”

“socializing,” and “acknowledged activities” in discrediting the treating physicians’ opinions,
Lesueur’s alleged symptoms and limitations, and the third-party witness statement of Louis
Jackson. (Tr. 23-24.) At the outset, the Court notes there is no evidence in the record that
Lesueur has an “active” social life.

The ALJ has not cited to any evidence that would

demonstrate that Lesueur’s daily activities could even be construed in such a way. The ALJ cites
to Lesueur’s adult function report, Jackson’s third-party statement, and a single treatment note to
support the weak credibility finding. (Tr. 19, 21.)
In his adult function report, Lesueur states that his daily activities included brushing his
teeth, sleeping, and listening to the radio. (Tr. 207.) Lesueur lives alone and does not care for
anyone else or any pets. (Tr. 208.) Lesueur stated that he cannot be around people because he is
highly irritable, depressed, afraid to be around people, goes out alone, and he does not go out
much or spend time with others. (Tr. 209-212.) Lesueur stated in his function report and
testified that he shops for groceries once a month. (Tr. 51, 210.) He prepares simple meals in

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the microwave and has decreased personal grooming habits. (Tr. 208-209.) Lesueur testified
that he had a best friend, but that they were not speaking at the time of the hearing. (Tr. 49.)
Lesueur also walks or uses public transportation, because he was in an “almost fatal car crash”
and decided not to renew his driver’s license. (Tr. 42-43, 210.) In Johnson’s third party
statement, Johnson states that Lesueur “doesn’t go out much,” has “sloppy dress,” “very rarely”
goes out, has “poor communication skills and attention span”, and is “withdrawn.” (Tr. 223228.) Further, Lesueur’s statements to his therapist that he could have sexual relationships, but
was looking for a long term relationship and that most of his problems come from no one willing
to love him, does not indicate an active social life. (Tr. 210, 212, 375.) As summarized above,
Lesueur’s adult function report and testimony, Johnson’s third-party function report, and the
treatment notes do not indicate any activities that would demonstrate an active social life. The
ALJ’s repeated statements that Lesueur’s allegations are inconsistent with the record as a whole
are also not supported by a review of the record.
The Court notes for the record that the ALJ made several unsubstantiated and improper
comments about Lesueur’s receipt and pursuit of public assistance for food and housing,
unemployment benefits, and disability benefits to discredit him. (Tr. 19-22.) These comments
include the following: “He had the wherewithal to seek medical attention when he purportedly
was contemplating suicide and has pursued disability and public assistance in housing and other
areas as if they were full time jobs while denying any other problems” and “he collected
unemployment and refused medical treatment, instead demanding assistance to find housing.”
(Tr. 19, 22.) In support of these comments, the ALJ’s decision cites to an ALJ hearing decision
in a prior application for disability benefits, medical records from Lesueur’s hospitalization at St.
Alexius in September 2010, and treatment records from Hopewell. The ALJ’s decision from a

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prior determination is not before the court and in any event does not constitute “evidence.” (Tr.
78-92.) The treatment notes from Hopewell and St. Alexius do not indicate that he pursued
public assistance like a “full time job” or “demanded” housing assistance. (Tr. 257-275, 280289, .) Lesueur mentioned to the therapist at Hopewell that he was denied disability benefits the
day after a decision was issued and that his disability claim was pending. (Tr. 289, 319, 331.)
During one visit to his case worker, Lesueur stated that he did not want to talk to her. (Tr. 326.)
According to this case worker, Lesueur stated that “he just wanted to get some medications and
he wanted [the] counselor to find him a place to live” and “all he wanted to do was to see the
doctor.” (Tr. 326.) Lesueur was homeless during part of the time that his application for
disability benefits was pending. (Tr. 330, 336-337.) Upon review of the citations to the record,
the ALJ’s characterization of these records is not accurate. Moreover, a person’s credibility
should not be lessened because he pursues and receives benefits for food and shelter that he is
entitled to receive. Whether a claimant receives public benefits is irrelevant to the question of
whether he is eligible for disability insurance or SSI benefits. Although a claimant’s financial
motivation can be considered when other factors cast doubt upon the claimant’s credibility, the
application for and receipt of public assistance is not part of a valid credibility determination.
See Ramirez v. Barnhart, 292 F.3d 576, 582 (8th Cir. 2002) (all claimants are financially
motivated to some extent, but a claimant’s financial motivation may contribute to an adverse
disability determination only when other factors cast doubts upon the claimant’s credibility); see
also Primm v. Astrue, No. 4:07-CV-901 RWS, 2008 WL 4151672 at *13 (E.D. Mo. Sept. 2,
2008) (ALJ’s discounting of claimant’s credibility due to “benefit seeking behavior” not valid);
Caldwell v. Sullivan, 736 F.Supp 1076, 1081 (D. Kan. 1990) (ALJ’s credibility determination
demonstrated a shocking distrust of plaintiff’s motivations and improperly highly scrutinized

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claimant because she was not wealthy, which was distasteful and legally unsupportable.)
Lesueur’s testimony and adult function report was consistent with the medical evidence in the
record and the ALJ does not cite to any legitimate inconsistencies in the record that would allow
for his credibility to be discounted. See Davidson v. Astrue, 578 F.3d 838, 844 (8th Cir. 2009)
(ALJ can discount claimant’s allegations if there is evidence that a claimant was a malingerer or
exaggerated symptoms for financial gain).
The acceptance of unemployment benefits, which entails an
assertion of the ability to work, is facially inconsistent with a
claim of disability. However, the negative impact cannot be
uniformly or automatically applied in every case. Where, as
here, there is no other evidence to detract from the claimant's
credibility, the negative inference is not sufficient, of itself,
to negate the claimant's credibility.
Cox v. Apfel, 160 F.3d 1203, 1208 (8th Cir. 1998) (internal citations omitted).
Finally, the ALJ failed to take into account whether Lesueur’s failure to comply with his
medications or visit his doctor was a result of his mental illness. Pate-Fires v. Astrue, 564 F.3d
935, 946 (8th Cir. 2009).

“[F]ederal courts have recognized a mentally ill person’s

noncompliance with psychiatric medications can be, and usually is, the result of the mental
impairment itself and, therefore [is] neither willful nor without a justifiable excuse.” Pate-Fires,
564 F.3d at 945. There may be substantial evidence to support a finding that Lesueur knew he
needed to take his medication, but that would not resolve the relevant question of whether his
failure or refusal to follow prescribed treatment was a manifestation of his schizoaffective
disorder and depression. Id. at 946. Furthermore, “[w]hile medication might help control [his]
condition, it does not alleviate the possibility [he] will relapse.” Pate-Fires, 564 F.3d at 947.
“[I]naccuracies, incomplete analyses, and unresolved conflicts of evidence can serve as a basis
for remand.” Draper v. Barnhart, 425 F.3d 1127, 1130 (8th Cir. 2005).

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In conclusion, the ALJ’s finding of no disability is not supported by substantial evidence
in the record as a whole.
Accordingly,
IT IS HEREBY ORDERED that the relief which Lesueur seeks in his Complaint and
Brief in Support of Complaint is GRANTED in part and DENIED in part. [Docs. 1, 17]
IT IS FURTHER ORDERED the ALJ’s decision of March 26, 2012 is REVERSED
and REMANDED for a consultative examination of Lesueur’s non-exertional functional
limitations and a new residual functional capacity determination.
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 8th day of January, 2014.

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

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