Alic v. Colvin
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED and that this case is REMANDED to the Commissioner for further proceedings as discussed above. An appropriate Order of Remand shall accompany this Memorandum and Order. Signed by Magistrate Judge Thomas C. Mummert, III on August 8, 2014. (MCB)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN,
Acting Commissioner of Social Security, )
Case No. 4:13cv0638 TCM
MEMORANDUM AND ORDER
This 42 U.S.C. § 405(g) action for judicial review of the final decision of Carolyn
W. Colvin, the Acting Commissioner of Social Security (Commissioner), denying the
application of Rabija Alic for disability insurance benefits ("DIB") under Title II of the
Social Security Act (the Act), 42 U.S.C. § 401-433, is before the undersigned for a final
disposition pursuant to the written consent of the parties. See 28 U.S.C. § 636(c).
Ms. Alic (Plaintiff) applied for DIB in May 2010, alleging she was disabled since
March 27 of that year by low back pain radiating to the right leg, chest pain and a pacemaker,
liver damage, and an inability to stand, walk, or sit for long without pain. (R.1 at 127.) Her
application was denied on initial review and following a November 2011 hearing before
Administrative Law Judge ("ALJ") James K. Steitz. (Id. at 6-17, 22-33, 40-41, 44-48.) The
References to "R." are to the administrative record filed by the Commissioner with her
Appeals Council denied Plaintiff's request for review, effectively adopting the ALJ's decision
as the final decision of the Commissioner. (Id. at 1-3)
Testimony Before the ALJ
Plaintiff, represented by counsel, testified at the administrative hearing.2
Plaintiff, then forty-nine years old, testified that she was born in Bosnia and came to
the United States in 2001. (Id. at 25.) She lives in a second-floor apartment with her son,
daughter-in-law, and granddaughter. (Id.) Because of her back, she has difficulty climbing
the stairs. (Id. at 26.) She had eight years of school, all in Bosnia. (Id.) She can read and
write in Bosnian, but not in English. (Id. at 26-27.) Her daughter-in-law does the household
chores, including the cooking and laundry. (Id. at 32.)
Plaintiff testified that she can "probably" lift a gallon of milk. (Id. at 27.) She cannot
stand for longer than twenty minutes before having to sit down and cannot sit for longer than
fifteen minutes before having to change positions. (Id.) She cannot walk for longer than
fifteen minutes before having to stop. (Id.) These needs to change position are because of
her back pain and her pacemaker, which was installed in 2009. (Id.) She cannot dress
herself without help, particularly when putting on pants and shoes. (Id.)
The pain in her back radiates down her right leg "[m]any times a day." (Id. at 28.)
Her pacemaker "engage[s]" sometimes three times a day and sometimes more frequently.
(Id. at 29.) When it does, she has to be silent and wait. (Id.)
A Bosnian translator was also present and translated for Plaintiff.
Because of problems with her left shoulder, Plaintiff cannot lift her arm up. (Id.)
Because of problems with her right knee, she uses a cane all the time. (Id.)
Also, Plaintiff suffers from depression. (Id. at 30.) She lost thirty family members
during the war, including her brother and sister. (Id.) Dreams about the war keep her from
sleeping all night. (Id.) She cries two or three times a day. (Id.) When she cries, she prefers
to be by herself. (Id. at 31.) Her only hobby is watching Bosnian channels on television.
(Id.) She has auditory hallucinations of hearing people calling for her to help them. (Id.)
Medical and Other Records Before the ALJ
The documentary record before the ALJ includes documents generated pursuant to
Plaintiff's application, records from health care providers, and assessments of her mental and
physical functional capacities.
On a Disability Report, Plaintiff stated that she stopped working because of her
condition on March 27, 2010. (Id. at 127.) She did not make any changes in her work
Asked on a Function Report, to describe what she does during the day, Plaintiff
explained that she stays inside most of the day, lying or sitting on her couch. (Id. at 150.)
She tries to go with her son when he goes grocery shopping and tries to walk if it is not too
hot. (Id.) Pain prevents her from sleeping well. (Id. at 151.) She does not have any problem
with personal grooming tasks. (Id.) Her son always reminds her about doctors appointments
or to take her medication. (Id. at 152.) Her impairments adversely affect her abilities to lift,
squat, bend, stand, reach, walk, sit, kneel, remember, concentrate, understand, climb stairs,
complete tasks, follow instructions, and use her hands. (Id. at 155.) She can walk for fifty
meters before having to stop and rest for ten minutes. (Id.) She does not handle stress or
changes in routine well. (Id. at 156.) She uses a walker. (Id.)
On a Work History Report, Plaintiff described her hotel housekeeping job as
requiring that she frequently lift twenty-five pounds, occasionally lift fifty pounds, kneel or
crouch for five hours, and stoop, e.g. bend down and forward at the waist, for five hours. (Id.
After the initial denial of her application, Plaintiff completed a Disability Report –
Appeal form, explaining that, since completing the original form, she had become depressed
and was seeing a psychiatrist. (Id. at 163.) Her other impairments were worse. (Id.)
On an earnings report for the years from 2001 to 2009, inclusive, her lowest annual
earnings were $2,913, in 2001; her highest were $25,737, in 2008. (Id. at 111.) Her earnings
increased every year until 2009, when they fell to $23,508. (Id.) Plaintiff listed two jobs on
a Work History Report, the longest of which was as a housekeeper for the Frontenac Hilton.
(Id. at 118, 142.)
This job required that she frequently lift twenty-five pounds and
occasionally lift fifty pounds. (Id. at 143.) She had to walk for two hours, climb for one, and
stoop, kneel, or crouch for five hours. (Id.)
As of August 2010, a list of her medications named sumatriptan (for headaches),
oxycodone (for pain), metoprolol (for high blood pressure), hydrocholorothiazide (HCTZ,
also for high blood pressure), ranitidine (for gastroesophageal reflux disease), and Cymbalta
(for depression). (Id. at 169.) All were prescribed by Dr. Keric. (Id.)
The medical records begin in October 2006 when, on the referral of Edina Karhodzic,
M.D., Plaintiff was seen by an internist, Bruce R. Bacon, M.D., who scheduled her for an
endoscopy and lab work.3 (Id. at 412-14, 444-48.)
In January 2007, Dr. Bacon noted that Plaintiff had had an upper endoscopy which
revealed gastroesophageal reflux disease ("GERD"), for which she was taking omeprazole
(a generic form of Prilosec). (Id. at 408-10.) Lab work had shown her to be iron deficient
and to have hepatitis B. (Id. at 408.) A computed tomography ("CT") scan of her abdomen
was, with the exception of a left hepatic lobe cyst, unremarkable. (Id. at 449.)
In May, Dr. Bacon noted that a colonoscopy was normal; Plaintiff had no new
complaints. (Id. at 402-04.) Dr. Bacon started her on iron supplements. (Id. at 402.)
In September, Plaintiff told Dr. Bacon that she was feeling better since she had
started taking the iron supplements. (Id. at 399-401, 429.) She had had some recent chest
pain, but stress test performed several years earlier when she was seeing a cardiologist had
been negative. (Id. at 399, 401.) Tests revealed she was still iron deficient; she was to
continue taking the iron supplements for another three to four months. (Id. at 399.)
In March 2008, Plaintiff reported to Dr. Bacon that she was having symptoms of
dyspepsia (painful or difficult digestion) for the past month. (Id. at 396, 422-28) Her
prescription for Prilosec, which had been helpful, had run out. (Id. at 396, 397.) She had
stopped taking her iron supplements.
(Id. at 396.)
She was to continue taking the
supplements. (Id.) Her prescription for Prilosec was renewed. (Id.) ,
Plaintiff was always accompanied at medical visits by a translator or a family member who
translated for her.
Plaintiff consulted Emir Keric, M.D., as a new patient in April. (Id. at 368-69, 38485.) She complained of swelling in her legs for more than one year, GERD, and low back
and stomach pain. (Id. at 368.) Also, she had a history of a gastric ulcer and hepatitis B. (Id.
at 369.) She was prescribed medications for the GERD and the pain. (Id.)
When Plaintiff next saw Dr. Keric, in June, she reported that her stomach pain was
less, but she had pain in her left leg. (Id. at 370-71.) She was prescribed Celebrex and was
to return in three months for lab work. (Id. at 371.)
Plaintiff saw Dr. Bacon again on September 8. (Id. at 393-95, 419-21.) She
complained of heartburn but was not taking any proton pump inhibitors ("PPIs") to block the
production of gastric acid. (Id. at 394.) Otherwise, she felt well. (Id.) Dr. Bacon predicted
that tests would show that she had "a very low [iron] level." (Id. at 393.) Plaintiff informed
him she was going to resume taking iron supplements. (Id.) And, she was given a
prescription for Protonix, a PPI. (Id.)
In September, Plaintiff complained to Dr. Keric of jaw pain, but reported that her leg
pain was better. (Id. at 372-73.) Her pain was "much better" when she saw him the next
month. (Id. at 374-75.)
Plaintiff saw Dr. Keric again in December, reporting that the pain was worse in her
left foot. (Id. at 376-77, 380-81.) X-rays of her lumbar spine revealed levoscoliosis,
multilevel degenerative disc disease, spina bifida occulta from T12 through L2, and a
possible unilateral left L5 pars defect. (Id. at 380-81.) She was prescribed Vicodin. (Id. at
On January 2, 2009, Plaintiff consulted Dr. Keric about pain her low back that
radiated from her left to her right. (Id. at 378-79.) He diagnosed her with degenerative joint
disease of the spine. (Id. at 379.)
Ten days later, she saw Naseem A. Shekhani, M.D., for complaints of low back pain
of six to seven months' duration; the pain had increased during the past few weeks. (Id. at
332-33, 388.) The pain was aggravated by activity and alleviated by rest. (Id. at 333.) It was
a ten on a ten-point scale.4 (Id.) She sometimes had difficulty walking. (Id.) She also had
occasional numbness in her right lower extremity, which was worse with activity, and left
heel and shoulder pain. (Id.) On examination, the range of motion in her neck was normal,
but was decreased in her spine. (Id. at 332.) Straight leg raises were positive on the left and
negative on the right.5 (Id.) Her left heel was tender to the touch. (Id.) She had an antalgic
gait. (Id.) Dr. Shekhani's diagnosis was sciatica, left rotator cuff syndrome, left plantar
fasciitis, and antalgic gait. (Id. at 332.) He prescribed home exercises and recommended a
magnetic resonance imaging ("MRI") of her spine if approved by insurance. (Id.) He also
discussed with her a possible injection in her plantar fascia and left shoulder, if necessary.
(Id.) The MRI revealed facet degenerative arthropathy at L5-S1 and mild broad based disc
protrusion with facet hypertrophy at L4-L5. (Id. at 388.)
References in the medical records to a scale are always to a ten-point scale on which ten is
"During a [straight leg raising] test a patient sits or lies on the examining table and the
examiner attempts to elicit, or reproduce, physical findings to verify the patient's reports of back pain
by raising the patient's legs when the knees are fully extended." Willcox v. Liberty Life Assur. Co.
of Boston, 552 F.3d 693, 697 (8th Cir. 2009) (internal quotations omitted).
Plaintiff saw Dr. Shekhani again on January 23. (Id. at 331.) Her left leg hurt more
than her right. (Id.) On examination, she was as before. (Id.) She was given trigger point
injections at L4 and prescribed Darvocet (a pain medication). (Id.)
Two weeks later, on February 6, Plaintiff reported to Dr. Shekhani that the injection
had helped "a little." (Id. at 389.) Still, the pain increased with activity and decreased with
rest. (Id.) Her prescription for Darvocet was renewed. (Id.)
Plaintiff returned to Dr. Bacon on March 9. (Id. at 174-75, 415-18.) She had stopped
taking Protonix and iron supplements. (Id. at 174.) She was having epigastric pain and
GERD symptoms that day. (Id.) Her prescription for Protonix was refilled; she was to return
in four to six weeks. (Id. at 175.) Dr. Bacon wrote Dr. Keric that the return of Plaintiff's
GERD symptoms was due to her stopping the Protonix. (Id. at 173.) Laboratory testing
showed that her liver function was normal. (Id.)
On March 10, Plaintiff went to the emergency room at St. Anthony's Medical Center
(St. Anthony's) with complaints of right quadrant pain with nausea and vomiting. (Id. at 20523.) Her pain was a ten. (Id. at 207.) A CT scan of her abdomen and pelvis revealed a small
hypodensity within the liver and small bowel loops suggestive of a mild partial obstruction
and likely colonic ileus. (Id. at 219-21.) Her appendix was normal. (Id. at 221.) Chest xrays revealed a normal heart size and no pleural effusions. (Id. at 222.) It was noted that she
gave poor inspiratory effort. (Id.) An electrocardiogram ("ECG") was abnormal. (Id. at
223.) Plaintiff was have a contrast CT, but was unable to keep the contrast solution down.
(Id. at 210, 212.) She refused the alternative solution and was discharged with prescriptions.
(Id. at 212.)
Plaintiff saw Dr. Keric on March 23 for a follow-up. (Id. at 336-37.) On a checklist
form, Dr. Keric marked that all her systems, including her back, were within normal limits.
(Id.) She was to continue on her current medications, including the Protonix and iron
supplements. (Id. at 337.)
Plaintiff saw Dr. Bacon in September for a follow-up of her hepatitis B, GERD, and
iron deficiency. (Id. at 171-72, 391.) He noted that Plaintiff had stopped taking Protonix
after one month and had never taken the iron supplements. (Id. at 171.) She was having
"some" heartburn. (Id.) Her hepatitis was stable. (Id.) Her prescriptions for Protonix and
iron pills were renewed. (Id. at 172.) She was to return in six months. (Id.)
On October 19, Plaintiff was admitted to St. Anthony's from the emergency room
after going there with a syncopal episode and epigastric pain. (Id. at 180-81, 224-64, 551807.) A CT scan and ultrasound of her abdomen were unremarkable except for indicating
an earlier cholecystectomy. (Id. at 226, 229, 247-48, 253.) A chest x-ray was negative. (Id.
at 252.) An esophago-gastroduodenostomy ("EGD") revealed GERD. (Id. at 226, 231-38.)
A stress test was negative for ischemia. (Id. at 256.) After telemetry revealed episodes of
a third degree aortic valve block, Plaintiff had a pacemaker placed. (Id. at 226.) She was
discharged in stable condition four days after admission. (Id. at 226, 608, 788.) She was to
follow a low fat diet and see Dr. Keric in one week. (Id. at 226.) She was to do no heavy
lifting for the next four to six weeks and was to avoid raising her left arm over shoulder
height for the same length of time. (Id. at 806.)
On November 12, Plaintiff had the follow-up appointment with Dr. Keric. (Id. at
340-41.) He noted her weight to be 206 pounds and her height to be 5 feet 2.5 inches. (Id.
at 340.) Her systems, including her cardiovascular and back, were within normal limits. (Id.
at 340-41.) She was prescribed Tramadol and told to follow up with Dr. Bacon. (Id. at 341.)
A December cardiac catheterization revealed normal coronary arteries with right
dominant system and normal left ventricular function. (Id. at 182-83, 382.) A few days later,
Plaintiff wore a Holter monitor for twenty-four hours to record her heart's rhythms. (Id. at
179.) The report was benign. (Id.)
Later that month, she went to St. Anthony's emergency room after she begun to have
chest pain when at work. (Id. at 265-85, 451-76.) The pain had resolved prior to her going
to the emergency room. (Id. at 267.) On examination, her heart rate and rhythm were within
normal limits. (Id. at 269.) A CT angiography of her chest revealed subsegmental lingular
atelectasis, the cholecystectomy, and the pacemaker. (Id. at 281.) There was no evidence
of pulmonary embolism. (Id.) A chest x-ray was normal. (Id. at 283.) An ultrasound of her
gallbladder and biliary tract showed the cholecystectomy and a fatty or fibrotic liver. (Id. at
284.) An ECG showed no significant change from one conducted after the pacemaker was
placed. (Id. at 285.) Plaintiff was discharged with instructions to follow up with Tammam
Al-Joundi, M.D. (Id. at 276.)
Consequently, Plaintiff saw Dr. Al-Joundi on December 30, reporting having dyspnea
on exertion, but no transient ischemic attacks or stroke-like symptoms. (Id. at 177-78.) She
was taking Prilosec and Percocet. (Id.) On examination, she was positive for dyspnea and
chest pain. (Id. at 178.) She weighed 220 pounds and was 5 feet 5 inches tall. (Id.) Her
examination was otherwise negative, including for depression and hallucinations. (Id.) She
was continued on her current therapy and was to return in six months. (Id.)
Plaintiff reported to Dr. Keric in January 2010 that the pain was worse in her back
and was radiating down her right leg. (Id. at 338-39.) On the checklist format, he noted both
that her back was within normal limits and that she was tender in her low back. (Id. at 339.)
She was prescribed Prilosec for her GERD and Percocet for her low back pain and was told
to lose weight. (Id.)
On March 27, Plaintiff was seen at the St. Anthony's emergency room after
developing back pain that radiated down her right leg. (Id. at 286-301, 478-500.) At the
time, she had been lifting a mattress at her job. (Id. at 288, 291, 296.) The pain was
aggravated by movement. (Id. at 291.) A CT scan of her abdomen and pelvis was
unremarkable. (Id. at 299.) A lumbar spine x-ray showed degenerative changes at L1-L2.
(Id. at 301.) The pain improved on medication. (Id. at 295, 297.) Plaintiff was discharged
and was to follow-up with Dr. Keric. (Id. at 295, 297.)
Three days later, Plaintiff went to the Concentra Medical Centers, reporting that she
had injured her back and right leg three days earlier when she bent to lift a mattress in order
to make the bed. (Id. at 185, 190-97.) When seen by Marva Warmington, A.N.P., Plaintiff
appeared to be in severe distress. (Id. at 190.) On examination, she was tender on palpation
of her bilateral medial paraspinal muscles, but not over her spine. (Id. at 191.) Her right hip
and S1 area were also tender. (Id.) She could not stand erect, had a slow and antalgic gait,
and could move only a few degrees in any direction. (Id.) Straight leg raises were positive
on the right at 20 degrees and on the left at 45 degrees. (Id.) The diagnosis was lumber
radiculopathy and lumbar strain. (Id.) She was to continue the medications prescribed for
her at St. Anthony's, apply ice to the injured area for two days and then switch to moist heat,
do home exercises as instructed, participate in physical therapy three times a week for two
weeks, and remain off work. (Id.)
The same day, Plaintiff had her initial physical therapy visit. (Id. at 194-97.)
On March 31, Plaintiff informed Ms. Washington that the medications did not help.
(Id. at 188-89.) On examination, she was alert and oriented and in moderate distress. (Id.
at 188.) She had a "[v]ery limited range of motion" in her lumbar spine and was unable to
stand erect. (Id.) She got on and off the examination table with difficulty. (Id.) Her gait
was slightly improved, but was still slow and antalgic. (Id.) Waddell signs6 were positive
for distraction. (Id.) Straight leg raises were positive on the right at 30 degrees and on the
left at 75 degrees. (Id.) Plaintiff was diagnosed with lumbar strain and was to continue on
her current medications and with physical therapy, do her home exercises, and apply moist
heat to the injured area. (Id. at 189.) She was not to lift over ten pounds, push or pull over
"Waddell signs are a group of 8 physical findings, . . . the presence of which has been
alleged at times to indicate the presence of secondary gain and malingering." Fishbain, DA, et al.,
Is there a relationship between nonrganic physical findings (Waddell signs) and secondary
gain/malingering?, http://www.ncbi.nlm.nih.gov/pubmed/15502683 (last visited Aug. 8, 2014).
twenty pounds of force, and bend more than two times an hour. (Id.) She was to frequently
change her position. (Id.)
At her physical therapy session the same day, Plaintiff reported that her back was not
better. (Id. at 202-03.) Her pain was a nine on a ten-point scale. (Id. at 202.) It was noted
that she tolerated the therapy at that session and at the previous session "fairly well." (Id.)
At the next, April 6 physical therapy session, Plaintiff reported that she was worse
since the last therapy visit. (Id. at 198-201.) Her pain was aggravated by standing, sitting,
and walking. (Id. at 198.) She was not doing her home exercises. (Id.) She tolerated the
session well, although she demonstrated "poor effort." (Id. at 199, 200.)
The same day, Plaintiff reported to Ms. Warmington that the physical therapy had not
helped. (Id. at 186-87.) She had not been performing her home exercises because the pain
was too great. (Id. at 186.) Ms. Warmington noted that the physical therapist had reported
poor compliance and effort by Plaintiff at the therapy sessions. (Id.) On examination, she
had a "[s]everely diminished [range of motion] in all directions because [she] refuse[d] to
attempt." (Id.) Her gait was slow but normal. (Id.) She had difficulty getting up on her toes
or heels. (Id.) Ms. Warmington discussed with Plaintiff, through her translator and
daughter-in-law, that her subjective complaints were inconsistent with the objective findings.
She opined that Plaintiff's unimproved, persistent pain was more likely due to
degenerative changes in her lumbar spine than to a muscular strain that would improve with
Plaintiff was again instructed to continue with her previous
medications, apply moist heat to the injured area, and do her home exercises. (Id. at 187.)
She was released from care at Concentra. (Id.)
Two days later, Plaintiff returned to Dr. Keric for her back pain and atypical chest
pain. (Id. at 342-44, 386-87.) Her weight was 217 pounds; her height was unchanged. (Id.
at 342.) On examination, she was alert and oriented, anxious, sad, and "mildly ill appearing."
(Id.) She had significant muscle spasms in her lower back, paraspinal tenderness on
palpation, positive straight leg raises on both sides, an unremarkable gait, and normal
bilateral lower extremities. (Id. at 342-43.) He prescribed her alprazolam for anxiety and
told her to see Dr. Shekhani to continue physical therapy or have a paravertebral blockade.
(Id. at 343.)
On April 14, Plaintiff saw Sandra Tate, M.D., reporting that she had developed back
pain after lifting a lot of mattresses at work on March 27. (Id. at 527-29, 538-39, 545.) She
described the pain as stabbing, aching, and ranging from one to eight. (Id. at 528.) The pain
was aggravated by bending, sitting, coughing, sneezing, standing, twisting, lifting, and
walking. (Id.) On examination, Plaintiff was not in acute distress and had an appropriate
mood and affect. (Id.) She moved "very slowly and deliberately." (Id.) Her range of motion
in her lumbosacral spine was 50 percent of normal. (Id.) Straight leg raises were negative
to 90 degrees in both the sitting and lying positions. (Id.) She had diffuse paravertebral
tenderness with muscle tightness. (Id.) Dr. Tate recommended she undergo physical therapy,
temporarily limited her to lifting no more than ten pounds, planned on obtaining Dr.
Shekhani's medical records, continued Plaintiff on Vicodin, and anticipated seeing her again
in one week. (Id. at 529.)
After having last seen Dr. Shekhani in January 2009, Plaintiff returned to him on
April 15 for her complaints of leg pain, worse on the left than the right, and difficulty
walking. (Id. at 330.) After examining Plaintiff, Dr. Shekhani repeated his earlier diagnosis,
home exercise recommendation, and prescription for Darvocet. (Id.) Plaintiff was to return
in two weeks. (Id.)
The same day, on the referral of Dr. Tate, Plaintiff was seen by a physical therapist
at St. Louis Rehabilitation Institute. (Id. at 355, 503, 507.) She reported that she was in
constant pain that was a six or seven. (Id. at 355.) The pain was "stabbing and aching" and
was aggravated by bending forward, walking, standing, and lying supine. (Id.) The therapist
opined that Plaintiff had "good rehab potential." (Id.) It was also noted that it was difficult
for Plaintiff to stand erect without some support due to her pain. (Id.) Plaintiff was to have
physical therapy to increase her core and pelvic flexibility and strength. (Id.)
On April 20, after three visits, Plaintiff reported to the physical therapist that her low
back pain was the same. (Id. at 356, 504-05, 508.) When sitting, Plaintiff leaned to one side.
(Id. at 356.) She was guarded with any movement. (Id.)
The next day, Plaintiff saw Dr. Tate, reporting that her back pain was the same and
that physical therapy had given her only temporary relief. (Id. at 530-31, 540, 546.) She had
been taking two Vicodin a day, but had run out of the medication. (Id. at 530.) The back
pain radiated into her right leg down to the top of her foot. (Id.) Dr. Tate had not yet
received Dr. Shekhani's records. (Id.) On examination, Plaintiff was the same as the week
before with the exception of her gait. (Id. at 530-31.) She walked "extremely slow" and
flexed forward at the waist. (Id. at 531.) Dr. Tate gave her a refill of the Vicodin
prescription and released her to return to work with restrictions of lifting no more than twenty
pounds and no bending at the waist. (Id.)
Plaintiff saw Dr. Keric on April 16 for a follow-up. (Id. at 345-46.) She was started
on an iron supplement for her anemia and continued on her previous medications. (Id.)
When seeing Dr. Tate two days later, Plaintiff complained of increasing pain in her
low back that radiated to the back of her head. (Id. at 532-33, 541.) The pain had become
so great that she was now using a cane. (Id. at 532.) Any activity increased her pain; nothing
decreased it. (Id.) She was able to get up and walk around the examination room without
the cane. (Id.) Her mood and affect were anxious. (Id.) Her range of motion and straight
leg raises were as before. (Id.) Her gait was slow. (Id.) Dr. Tate had yet to receive any of
Dr. Shekhani's treatment notes. (Id.) She explained to Plaintiff that a determination of what
caused her back pain could not be made without those notes and requested that Plaintiff pick
them up from Dr. Shekhani's office. (Id.)
The next day, Plaintiff was seen at St. Anthony's emergency room for complaints of
weakness, dizziness, numbness in her right leg, and back pain radiating down to her right leg.
(Id. at 302-25.) X-rays of her lumbar spine showed the degenerative changes at L1-L2 earlier
revealed, but no other abnormalities. (Id. at 317-18.) X-rays of her cervical spine showed
a congenital fusion of the body of C2 and C3. (Id. at 321-22.) X-rays of her right hip and
of her chest were normal. (Id. at 319, 323.) An x-ray of her pelvis showed a focal area of
sclerosis in the interior left pubic ramus. (Id. at 320.) Plaintiff was discharged after being
given morphine and Zofran intravenously. (Id. at 309.)
Plaintiff then saw Dr. Shekhani. (Id. at 329.) Straight leg raises were positive on the
right and not on the left. (Id.) Her strength was 5/5. (Id.) She had an antalgic gait. (Id.)
The range of motion in her back was restricted. (Id.) He again discussed with Plaintiff a
home exercise program. (Id.) Also, he recommended that she have an epidural injection; one
was scheduled for the next week. (Id.) He informed Plaintiff she needed to work with Dr.
Tate for worker's compensation purposes. (Id.)
Dr. Tate had received Dr. Shekhani's records by the time she next saw Plaintiff, on
May 5. (Id. at 534-35, 542, 544.) She noted that Plaintiff continued to use a cane to walk.
(Id. at 534.) On examination, Plaintiff's range of motion in her lumbosacral spine was selflimited to 30 percent of normal. (Id.) Straight leg raises were negative to 90 degrees in a
sitting position; however, she complained of back pain in a lying position. (Id.) Her gait was
"very slow, but she [was] able to ambulate for a few steps without the cane. She would not
walk on toes or heels." (Id. at 535.) Because of a fall at work the previous Friday, Plaintiff
was not to return to work until a CT scan had been performed. (Id.) The CT scan revealed
mild lumbar spondylosis, most marked at L4-5 with disc bulging; facet disease; and
ligamentum flavum hypertrophy resulting in moderate central canal and bilateral lateral
(Id. at 544.)
There was no significant disc herniation, fracture, or
On May 6, Dr. Shekhani gave Plaintiff an epidural injection in her lumbar spine. (Id.
Plaintiff was "still experiencing back pain and right greater than left leg pain that
[was] getting progressively worse" when she next saw Dr. Tate, on May 11. (Id. at 536-37,
543, 547.) Her mood and affect were appropriate. (Id. at 536.) Her gait was within normal
limits and without specific or coordination deficits. (Id.) Her range of motion of her
lumbosacral spine was self-limited as before. (Id.) Dr. Tate opined that Plaintiff's March
2010 work injury was not the cause of her current symptoms; rather, they were caused by preexisting degenerative changes. (Id. at 537.) She also opined that there was symptom
magnification. (Id.) She recommended only a restriction of lifting no more than twenty
pounds and no bending at the waist. (Id.)
Plaintiff reported to Dr. Shekhani on May 20 that she had had only initial relief from
the injection. (Id. at 327.) Her back and left shoulder pain were constant and between six
and nine on a ten-point scale. (Id.) His diagnoses and treatment plan was unchanged. (Id.)
He was to refer Plaintiff to a spine surgeon for a consultation. (Id.)
On June 3, Plaintiff saw Dr. Keric for pain in her back and right flank and swelling
in her left leg. (Id. at 347-48.) Her current medications included Lortab (for pain relief),
alprazolam (an anti-anxiety medication), omeprazole, and an iron supplement. (Id. at 347.)
She was also prescribed Darvocet and was told to diet and exercise. (Id.) On examination,
she had no swelling in her extremities. (Id.) Her weight was then 218 pounds. (Id.)
The next day, Plaintiff underwent a psychosocial evaluation at Psych Care
Consultants.7 (Id. at 808-11.) Plaintiff reported that she was separated from her husband,
living with her son and his family, and not working. (Id. at 808.) She was having bad
dreams and difficulty sleeping. (Id.) She was nervous. (Id.) She was diagnosed with major
depressive disorder with psychotic features. (Id. at 811.) Her Global Assessment of
Functioning ("GAF") was 41.8 (Id.) She was given supportive therapy and a prescription for
On July 29, Plaintiff told the clinician that she was worried about her inability to hold
a job. (Id. at 812, 815.) Her husband was living with his mother. (Id.) She was depressed.
(Id.) Her Cymbalta dosage was increased. (Id.) She was to return in four weeks. (Id.)
She did, reporting that she was eating cream and potatoes and gaining weight. (Id.
at 813, 814.) She was told to eat a healthy diet. (Id.) She also reported she was having
nightmares about the war in Bosnia and had lost several family members in that war. (Id.)
Her diagnosis and GAF were as before. (Id.) She was to return in two weeks. (Id.)
The clinician's illegible signature is the only indication of who treated Plaintiff. The
clinician's professional qualifications are not listed. In her supporting brief, Plaintiff identifies the
provider as Dr. Farida Farzana. (Pl.'s Br. at 9.) A Farida Fazana, M.D., is listed in a directory of
health care providers as being a psychiatrist with Psych Care Consultants. See RateMDs,
visited Aug. 7, 2014).
"According to the Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. Text
Revision 2000) [DSM-IV-TR], the Global Assessment of Functioning Scale is used to report 'the
clinician's judgment of the individual's overall level of functioning,'"" Hudson v. Barnhart, 345
F.3d 661, 663 n.2 (8th Cir. 2003), and consists of a number between zero and 100 to reflect that
judgment, Hurd v. Astrue, 621 F.3d 734, 737 (8th Cir. 2010). A GAF score between 41 and 50 is
indicative of "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent
shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no
friends, unable to keep a job)." DSM-IV-TR at 34 (emphasis omitted).
She did not; instead, she returned in three months, on November 18. (Id. at 816.)
She reported that she was a little better, but could not sit still and could not sleep. (Id. at
816.) Her diagnosis, GAF, and prescription were unchanged. (Id.) She was to return in
eight weeks. (Id.)
She did, in January 2011. (Id. at 817-18.) She was described as being very sad,
withdrawn, and preoccupied. (Id. at 817.) She kept crying. (Id. at 818.) She was worried
about her health and could not concentrate or focus well. (Id.)
In addition to the foregoing medical records, various assessments of Plaintiff's
physical and mental functional capacities were before the ALJ.
In July 2010, a Psychiatric Review Technique form was completed for Plaintiff by
a non-examining consultant, Kyle DeVore, Ph.D. (Id. at 357-67.) Plaintiff was assessed as
having a non-severe anxiety-related disorder. (Id. at 357.) This disorder resulted in mild
restrictions in her daily living activities, mild difficulties in maintaining social functioning,
and mild difficulties in maintaining concentration, persistence, or pace. (Id. at 365.) There
were no repeated episodes of decompensation of extended duration. (Id.)
The next month, a Physical Residual Functional Capacity Assessment of Plaintiff was
completed by Maria Wilson, a single decision maker.9 (Id. at 34-39.) The primary diagnoses
were 11/12 osteophyte and degenerative changes; the secondary diagnoses were left rotator
cuff syndrome and left plantar fasciitis; other alleged impairments included having a
See 20 C.F.R. §§ 404.906, 416.1406 (defining role of single decision-maker under proposed
modifications to disability determination procedures). See also Shackleford v. Astrue, 2012 WL
918864, *3 n.3 (E.D. Mo. Mar. 19, 2012) ("Single decision-makers are disability examiners
authorized to adjudicate cases without mandatory concurrence by a physician.") (citation omitted).
pacemaker and GERD. (Id. at 34.) These impairments resulted in exertional limitations of
Plaintiff being able to occasionally lift or carry twenty pounds; frequently lift or carry less
than ten pounds; and sit, stand, or walk for approximately six hours in an eight-hour day. (Id.
at 35.) Her abilities to push and pull were otherwise unlimited. (Id.) She had postural
limitations of never climbing ladders, ropes, and scaffolds and only occasionally stooping,
kneeling, crouching, crawling, and climbing ramps and stairs. (Id. at 36.) She was limited
in her ability to reach overhead due to her rotator cuff syndrome. (Id.) She had no visual or
communicative limitations. (Id. at 36-37.) She had environmental limitations of needing to
avoid concentrated exposure to vibrations and extreme cold or heat. (Id. at 37.) She should
avoid even moderate exposure to hazards, e.g., machinery or heights. (Id.)
In February 2011, pursuant to her worker's compensation claim, Plaintiff had an
independent medical examination ("IME") by David T. Volarich, D.O. (Id. at 509-22.)
Plaintiff reported that she had first injured her back on December 21, 2008, when lifting a
king-size mattress at work. (Id. at 511.) She disputed Dr. Keric's reference in his treatment
notes of the next day that her back pain had been present for six weeks. (Id.) On March 24,
2010, she slipped and fell, jarring her back. (Id.) She did not receive any treatment for this
injury. (Id.) Three days later, she experienced severe low back pain when again lifting a
mattress at work. (Id.) After further describing Plaintiff's medical history and records, Dr.
Volarich summarized her present complaints. (Id. at 513-14.) Those complaints included
having to use a cane to walk, being unable to walk for longer than fifteen minutes before
needing to sit down, having to use the handrail when climbing stairs, not being able to lift
even a gallon of milk without difficulty, and having difficulty moving after doing any
bending, twisting, pushing, or pulling. (Id. at 513.) She stayed around the house during the
day. (Id.) She could care for herself, but moved slowly. (Id.) She did not do any household
chores and was no longer able to cook. (Id.) She did not sleep well. (Id.) She had not had
any back problems before the December 2008 injury. (Id.) Before that injury, she would
miss approximately ten days of work a year due to nausea and right flank pain. (Id. at 514.)
Even after her pacemaker was placed, she had some chest pain and shortness of breath. (Id.)
She was, however, able to continue to work full duty without any physician-imposed
On examination, she was 5 feet 3 inches tall and weighed 226 pounds. (Id. at 515.)
Her body mass index ("BMI") was 40. (Id.) Her heart had a regular rate and rhythm. (Id.)
Her lung sounds were normal. (Id.) She had a flat affect and appeared to be depressed. (Id.
at 516.) "She dwel[t] considerably on her pain syndrome." (Id.) In her upper extremities,
she had symmetrical muscle bulk, tone, and strength. (Id.) Complaints of back pain
radiating to both legs prevented an assessment of the strength of her lower extremities. (Id.)
She had diminished pinprick sensation in both lower extremities. (Id.) She had a slow,
careful gait. (Id.) When entering the examination room, she used a cane. (Id.) She could
walk back and forth across the room without the cane, but reported pain with every step.
(Id.) She could not perform any other gait maneuvers. (Id.) She had a 53 percent loss of
range of motion on flexion of her lumbar spine, a 60 percent loss on extension, a 44 percent
loss on right lateral flexion, and a 52 percent loss on left lateral flexion. (Id.) She had pain
with all movements. (Id. at 516-17.) Straight leg raises were positive at ten degrees on the
right and were unattempted on the left due to pain. (Id. at 517.) Dr. Volarich rendered a
diagnosis relating to each injury and also diagnosed Plaintiff with depression. (Id. at 51718.) He opined that the December 2008 work injury was "the substantial contributing factor,
as well as the prevailing or primary factor causing the disc protrusion at L4-5, as well as
aggravating preexisting degenerative joint disease at L5-S1 . . . ." (Id.) He then assessed the
percentage of permanent partial disability attributable to each injury. (Id. at 519-20.) He
opined that "[d]isability exists as a result of her depression" and deferred to psychiatry for
an assessment. (Id. at 520.) He opined that she "is unable to engage in any substantial
gainful activity." (Id.) Specifically, she cannot "perform on an ongoing basis 8 hours per
day, 5 days per week throughout the work year." (Id.) This inability includes the job she
held as a housekeeper and similar jobs. (Id.) He advised her to limit "all bending, twisting,
lifting, pushing, pulling, carrying, climbing, and other similar tasks to an as needed basis"
and not to handle any weight heavier than ten to fifteen pounds. (Id.) at 521.) She should
change positions frequently and avoid remaining in a fixed position for longer than fifteen
An IME was performed the same month for the same reason by Dr. Tate. (Id. at 52335.) Dr. Tate reported Plaintiff having back pain prior to the December 2008 work injury.
(Id. at 523.) Plaintiff reported that she had been referred to a surgeon for her continuing back
pain – between a four and a ten – but had not been seen because she did not have insurance
and was unemployed. (Id.) She reported that her pain was primarily in her back and right
leg and was intermittently in her left leg. (Id.) The pain was aggravated with bending,
twisting, kneeling, walking, and lifting; it improved with pain medications, i.e., Percocet and
Cymbalta. (Id.) On examination, Plaintiff's mood and affect were appropriate; she was alert
and oriented to time, place, and person. (Id. at 524.) Her range of motion in her lumbar
spine was self-limited to 20 percent of normal. (Id.) Dr. Tate noted that this was inconsistent
with her ability to get on and off the examination table, "showing at least 50% of normal
range of motion." (Id.) Straight leg raises were negative to 90 degrees in a sitting position
and were positive at 30 degrees in a lying position. (Id.) Her complaints of pain with an
attempt of passive range of motion of her lower extremities when in a sitting position were
inconsistent with her straight leg raises. (Id.) There was no atrophy or fasciculation in her
muscles. (Id.) Her gait was normal. (Id.) She had a decreased sensation in her right lower
extremity in a nonanatomic distribution. (Id.) Dr. Tate opined that the prevailing cause of
Plaintiff's low back pain was not the December 2008 injury but was preexisting degenerative
disc and joint changes. (Id. at 524-25.) Nor did she have any permanent partial disability as
a result of the later work-related injuries. (Id. at 525.) Dr. Tate concluded that Plaintiff was
at maximum medical improvement and did not need any additional medical treatment. (Id.)
The ALJ's Decision
The ALJ first found that Plaintiff met the insured status requirements of the Act
through December 31, 2014, and had not engaged in substantial gainful activity since her
alleged disability onset date of March 27, 2010. (Id. at 11.) He next found that she had
severe impairments of back pain, coronary disease, liver disease, and depression. (Id.) She
did not have an impairment or combination of impairments that met or medically equaled an
impairment of listing-level severity. (Id.) Addressing Plaintiff's mental impairment, the ALJ
concluded that she had mild restrictions in activities of daily living, no difficulties in
maintaining social functioning, and mild difficulties in concentration, persistence, or pace.
(Id.) She had not had any episodes of decompensation. (Id.)
The ALJ next determined that Plaintiff had the residual functional capacity ("RFC")
to perform the full range of light work. (Id. at 12.) Explaining this conclusion, the ALJ
compared Plaintiff's descriptions of her exertional limitations, e.g., difficulty standing, with
the objective medical record, including those relating to the treatment of her back pain,
coronary disease, liver disease, and mental impairment. (Id. at 12-16.) He found that her
complaints of disabling back pain were inconsistent with the objective medical records,
which reflected only minimal to mild degenerative disc disease; her failure to attend all the
recommended physical therapy sessions, although she had tolerated the therapy she did
receive "fairly well"; her failure to seek treatment or take pain medication after June 2010;
and her continuing to work for an extended period with her pre-existing back problem, as
reflected in Dr. Tate's finding that the March 2010 injury "caused, at most, a temporary
precipitation of symptoms." (Id. at 13-14.) The ALJ found that Plaintiff's testimony about
needing to use a cane was inconsistent with her work history and the lack of any indication
in the medical records that the cane was prescribed or needed. (Id. at 14.)
Addressing Plaintiff's coronary disease and liver disease, the ALJ noted that she did
not testify about any limitations caused by her liver disease and had not reported any related
symptoms to medical personnel since early 2010. (Id. at 14, 15.) Nor had Plaintiff sought
any treatment for a cardiac problem for more than eighteen months. (Id. at 15.) Also, a
cardiac catheterization and a chest x-ray, both performed after the placement of the
pacemaker, had shown no cardiac abnormalities. (Id.)
Addressing Plaintiff's mental impairment, the ALJ noted that the records from Psych
Care Consultants did not include a legible signature of the clinician or that clinician's
qualifications. (Id.) The source of the low GAF was unknown and the GAF itself was
unsupported by the record. (Id. at 15-16.) Her depression did not result in at least four signs
of a persistent depressive syndrome. (Id. at 16.) And, Plaintiff sought treatment for a mental
impairment for only six months. (Id.)
The ALJ then concluded that, with her RFC, Plaintiff could perform her past relevant
work as a housekeeper. (Id.) Citing her description of the hotel housekeeping job in her
Work History Report, he found that that description of the job was consistent with that of the
Dictionary of Occupational Titles ("DOT"). (Id. at 16-17.)
Plaintiff was not, therefore, disabled within the meaning of the Act. (Id. at 17.)
Standards of Review
Under the Act, the Commissioner shall find a person disabled if the claimant is
"unable to engage in any substantial activity by reason of any medically determinable
physical or mental impairment," which must last for a continuous period of at least twelve
months or be expected to result in death.
42 U.S.C. § 423(d)(1)(A).
Not only the
impairment, but the inability to work caused by the impairment must last, or be expected to
last, not less than twelve months. Barnhart v. Walton, 535 U.S. 212, 217-18 (2002).
Additionally, the impairment suffered must be "of such severity that [the claimant] is not only
unable to do [her] previous work, but cannot, considering [her] age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the national
economy, regardless of whether . . . a specific job vacancy exists for [her], or whether [s]he
would be hired if [s]he applied for work." 42 U.S.C. § 423(d)(2)(A).
The Commissioner has established a five-step process for determining whether a
person is disabled. See 20 C.F.R. § 404.1520; Hurd, 621 F.3d at 738; Gragg v. Astrue, 615
F.3d 932, 937 (8th Cir. 2010); 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 (8th Cir. 2006). First, the claimant cannot be presently
engaged in "substantial gainful activity." See 20 C.F.R. § 404.1520(b); Hurd, 621 F.3d at
738. Second, the claimant must have a severe impairment. See 20 C.F.R. § 404.1520(c).
The 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.
At the third step in the sequential evaluation process, the ALJ must determine
whether the claimant has a severe impairment which meets or equals one of the impairments
listed in the regulations and whether such impairment meets the twelve-month durational
requirement. See 20 C.F.R. § 404.1520(d) and Part 404, Subpart P, Appendix 1. If the
claimant meets these requirements, she is presumed to be disabled and is entitled to benefits.
Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir. 1994).
"Prior to step four, the ALJ must assess the claimant's [RFC], which is the most a
claimant can do despite her limitations."
Moore, 572 F.3d at 523 (citing 20 C.F.R.
§ 404.1545(a)(1)). "[RFC] is not the ability merely to lift weights occasionally in a doctor's
office; it is the ability to perform the requisite physical acts day in and day out, in the
sometimes competitive and stressful conditions in which real people work in the real world."
Ingram v. Chater, 107 F.3d 598, 604 (8th Cir. 1997) (internal quotations omitted).
Moreover, "'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 (quoting Lacroix, 465 F.3d at 887); accord
Partee v. Astrue, 638 F.3d 860, 865 (8th Cir. 2011).
In determining a claimant's RFC, "'the ALJ first must evaluate the claimant's
credibility.'" Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007) (quoting Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir. 2002)). This evaluation requires that the ALJ
consider "' the claimant's daily activities;  the duration, frequency and intensity of the
pain;  precipitating and aggravating factors;  dosage, effectiveness and side effects of
medication;  functional restrictions.'" Id. (quoting Polaski v. Heckler, 739 F.2d 1320,
1322 (8th Cir. 1984)). "'The credibility of a claimant's subjective testimony is primarily for
the ALJ to decide, not the courts.'" Id. (quoting Pearsall, 274 F.3d at 1218). After
considering the Polaski 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 services of a vocational
expert ("VE") or other resources, e.g., the DOT, may be used at this step to obtain relevant
evidence of the physical and mental demands of a claimant's past relevant work, "either as
the claimant actually performed it or as generally performed in the national economy." 20
C.F.R. § 1560(b)(2). 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. Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009); Banks v. Massanari,
258 F.3d 820, 824 (8th Cir. 2001).
If the claimant is prevented by her impairment from doing any other work, the ALJ
will find the claimant to be disabled.
The ALJ's decision whether a person is disabled under the standards set forth above
is conclusive upon this Court "'if it is supported by substantial evidence on the record as a
whole.'" Wiese v. Astrue, 552 F.3d 728, 730 (8th Cir. 2009) (quoting Finch v. Astrue, 547
F.3d 933, 935 (8th Cir. 2008)); accord Dunahoo v. Apfel, 241 F.3d 1033, 1037 (8th Cir.
2001). "'Substantial evidence is relevant evidence that a reasonable mind would accept as
adequate to support the Commissioner's conclusion.'" Partee, 638 F.3d at 863 (quoting Goff
v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)). When reviewing the record to determine
whether the Commissioner's decision is supported by substantial evidence, however, the
Court must consider evidence that supports the decision and evidence that fairly detracts from
that decision. Moore, 623 F.3d at 602; Jones v. Astrue, 619 F.3d 963, 968 (8th Cir. 2010);
Finch, 547 F.3d at 935. The Court may not reverse that decision merely because substantial
evidence would also support an opposite conclusion, Dunahoo, 241 F.3d at 1037, or it might
have "come to a different conclusion," Wiese, 552 F.3d at 730.
Plaintiff argues that the ALJ erred by not obtaining testimony from a VE and by
rejecting without explanation the opinions of Drs. Volarich and Tate. The Commissioner
As noted above, the ALJ concluded that, with her RFC for light work, Plaintiff can
perform her former housekeeping job as she actually performed it and as it is performed,
according to the DOT, in the national economy. This conclusion terminated the sequential
analyzation of Plaintiff's DIB application at step four.
Insofar as Plaintiff's first argument implies that a VE must be called to testify if a
claimant has a nonexertional impairment, it is unavailing. "[I]t is clear in [the Eighth Circuit]
that vocational expert testimony is not required at step four where the claimant retains the
burden of proving she cannot perform her prior work. Vocational expert testimony is not
required until step five when the burden shifts to the Commissioner, and then only when the
claimant has nonexertional impairments . . . ." Banks v. Massanari, 258 F.3d 820, 827 (8th
Cir. 2001) (internal citations omitted). A VE's testimony may be relevant at step four, but it
is not required. Id.
As noted above, at step four, "[a]n ALJ may find the claimant able to perform past
relevant work if the claimant retains the ability to perform the functional requirements of the
job as she actually performed it or as generally required by employers in the national
economy." Samons v. Astrue, 497 F.3d 813, 821 (8th Cir. 2007). "The regulations refer to
[the DOT] as a resource in determining the duties of a claimant's past relevant work." Id.
Accord Jones v. Chater, 86 F.3d 823, 826 (8th Cir. 1996) (holding that (1) a claimant is not
disabled if she has the RFC to perform "[the actual functional demands and job duties of a
particular past relevant job" or "[t]he functional demands and job duties of the occupation as
generally required by employers throughout the national economy" and (2) "an ALJ may take
notice of job information in the [DOT]").
The ALJ found that Plaintiff has the RFC to perform the full range of light work.
Title 20 C.F.R. § 404.1567(b) defines "light work" as "involv[ing] lifting no more than 20
pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds." In
her Work History Report, cited by the ALJ, Plaintiff described her housekeeping job as
requiring the frequent lifting of objects weighing twenty-five pounds and the occasional
lifting of up to fifty pounds. Thus, the job as she actually performed it is inconsistent with
the ALJ's finding that she has the RFC for nothing heavier than light work.
The ALJ also cited the DOT in support of his conclusion that, with her RFC for light
work, Plaintiff can perform her past relevant work as it is performed in the national economy.
The ALJ did not, however, cite a specific job definition. The DOT definition of housekeepers
in the hotel industry involves "[s]upervising working activities of cleaning personnel to
ensure clean, orderly attractive rooms in hotels . . . and similar establishments." DOT:
Housekeeper, 321.137-010, 1991 WL 672778 (4th ed. rev. 1991). While this definition
includes an exertional level of light work, it also includes a language level of three, requiring
the ability to "[r]ead a variety of novels, magazines, . . . safety rules, instructions in the use
and maintenance of . . . equipment." Id. The ALJ did not address the question whether
Plaintiff with her Bosnian eighth grade education and inability to read English, can perform
at the necessary language level.
If the ALJ meant to refer to the DOT definition of cleaner, housekeeping, in any
industry, including hotels, DOT 323.687-014, he did not address the question whether
Plaintiff can perform the job as it requires occasional stooping.
See DOT: Cleaner,
Housekeeping, 1991 WL 672783 (4th ed. rev. 1991). The RFC finding of the ALJ conformed
to Dr. Tate's consistent restrictions of Plaintiff not lifting more than twenty pounds. Dr. Tate
also restricted Plaintiff to no bending at the waist. The ALJ does not reject or accept this
restriction, not does he explain why. Given this omission and the omission of any reference
to which DOT job classification the ALJ was relying on, the case shall be remanded for
further findings on whether Plaintiff can perform her past relevant work.
Plaintiff also argues that the ALJ erred by rejecting without explanation the
limitations placed on her by Drs. Volarich and Tate. Dr. Tate restricted Plaintiff to not lifting
more than twenty pounds and to no bending. The first restriction is reflected in the ALJ's
RFC findings; the second is addressed above.
Dr. Volarich evaluated Plaintiff pursuant to her worker's compensation claim and
concluded, after seeing her this one time, that she can not engage in substantial gainful
activity. The ALJ is not required to accept his opinion. See Wagner, 499 F.3d at 849
(holding that the opinion of a consulting physician who exams claimant only once is generally
not considered substantial evidence); accord Charles v. Barnhart, 375 F.3d 777, 783 (8th
Cir. 2004). See also Martise v. Astrue, 641 F.3d 909, 927 (8th Cir. 2011) (noting that ALJ
is not required to rely entirely on a physician's opinion or have to choose between opinions).
Nor is he required to "discuss every piece of evidence submitted." Black v. Apfel, 143 F.3d
383, 386 (8th Cir. 1998). And, the failure to cite Dr. Volarich's opinion "does not indicate
that such evidence was not considered." Id. See Montgomery v. Chater, 69 F.3d 273, 275
(8th Cir. 1995) (holding that ALJ's failure to cite in opinion an award of disability payments
to claimant by employer's insurance carrier did not mean that it was not considered).
Moreover, as noted by the Commissioner, Dr. Volarich's opinion that Plaintiff is
disabled according to Missouri worker's compensation law is not binding on her. See Cruze
v. Chater, 85 F.3d 1320, 1325 (8th Cir. 1996). And, "statements that a claimant could not
be gainfully employed are not medical opinions but opinion on the application of the statute,
a task solely to the discretion of the [Commissioner]." Id.
For the foregoing reasons, the ALJ failed to adequately explain his conclusion that
Plaintiff can perform her past relevant work as she performed it or as it is performed in the
national economy. The matter will therefore be remanded for further consideration.
Although the Court is aware that the ALJ's decision as to non-disability may not change after
properly considering all evidence of record and undergoing the required analysis, see Pfitzer
v. Apfel, 169 F.3d 566, 569 (8th Cir. 1999), the determination is nevertheless one that the
Commissioner must make in the first instance. Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED
and that this case is REMANDED to the Commissioner for further proceedings as discussed
An appropriate Order of Remand shall accompany this Memorandum and Order.
/s/ Thomas C. Mummert, III
THOMAS C. MUMMERT, III
UNITED STATES MAGISTRATE JUDGE
Dated this 8th day of August, 2014.
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