Derfler v. Colvin

Filing 28

MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the relief which Derfler seeks in her Complaint and Brief in Support of Plaintiffs Complaint is GRANTED in part and DENIED in part. [Docs. 1, 15.] IT IS FURTHER ORDERED that the Commissioners decision of March 29, 2012 is REVERSED and REMANDED. IT IS FURTHER ORDERED that a Judgment of Reversal and Remand will be filed contemporaneously with this Memorandum and Order remanding this case to the Commissioner of Social Security for further consideration pursuant to 42 U.S.C. § 405(g), sentence 4. 15 15 Signed by Magistrate Judge Nannette A. Baker on 8/6/14. (CLA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

GAIL C. DERFLER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No. 4:13-CV-1469-NAB

MEMORANDUM AND ORDER
The following opinion is intended to be the opinion of the Court judicially reviewing the
denial of Gail C. Derfler’s (“Derfler”) 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. 6.] The Court has reviewed the parties’ briefs and the entire administrative record,
including the hearing transcript and the medical evidence. The Court heard oral argument on the
pleadings of the parties on July 22, 2014. The Court now issues its ruling in this opinion.
Because the Court finds that the decision denying benefits is not supported by substantial
evidence, the Court will reverse and remand the decision to the Commissioner.
I.

Issues for Review
Derfler asserts three errors for review. First, Derfler contends that the administrative law

judge (“ALJ”) improperly failed to give controlling weight to the opinions of her treating
physicians. Second, she asserts that the ALJ failed to properly evaluate her credibility. Finally,

she contends the ALJ relied on flawed vocational expert testimony when determining her
disability status.
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).

2

III.

Discussion
Derfler alleges disability due to a cervical graft, lumbar pain, depression, and bi-polar

disorder. (Tr. 146.) The ALJ found that Derfler had the severe impairments of degenerative disc
disease, congenital spinal stenosis, and myelopathy of the cervical spine, status post-surgical
fusion; degenerative joint disease and degenerative disc disease of the lumbar spine, with
associated radiculopathy; hereditary spastic paraplegia; obesity; bi-polar affective disorder,
alternately diagnosed as cyclothymia; and anxiety disorder. (Tr. 423.)
The residual functional capacity (“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). In making a disability determination, the ALJ shall “always consider the medical
opinions in the case record together with the rest of the relevant evidence in the record.” 20
C.F.R. §§ 404.1527(b), 416.927(b); see also Heino v. Astrue, 578 F.3d 873, 879 (8th Cir. 2009).
“Medical opinions are statements from physicians and psychologists or other acceptable medical
sources that reflect judgments about the nature and severity of [the claimant’s] impairment(s),

1

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.

3

including [the claimant’s] symptoms, diagnosis and prognosis, what [the claimant] can still do
despite impairment(s), and [his or her] physical or mental restrictions.”
§§ 404.1527(a)(2), 416.927(a)(2).

20 C.F.R.

The ALJ found that Derfler had the residual functional

capacity to perform light work with the limitation that she can understand, remember, and carry
out simple instructions and non-detailed tasks.
Treating Physicians’ Opinion Evidence
Derfler asserts that the ALJ erred in failing to give controlling weight to the opinions of
her treating physicians, psychiatrists Dr. Rashmi Nakra and Dr. Layla Ziaee, and primary care
physician Dr. Mark Gregory. The ALJ gave little weight to the doctors’ opinions.
Generally, a treating physician’s opinion is given controlling weight, but is not inherently
entitled to it. Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006). A treating physician’s
opinion “does not automatically control or obviate the need to evaluate the record as a whole.”
Leckenby v. Astrue, 487 F.3d 626, 632 (8th Cir. 2007). A treating physician’s opinion will be
given controlling weight if the opinion is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the
case record. 20 C.F.R. §§ 404.1527(c), 416.927(c); 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 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.

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1.

Dr. Ziaee

Based upon the Court’s review of the administrative record, the Court finds that the ALJ
erred in failing to give controlling weight to Derfler’s treating psychiatrist, Dr. Layla Ziaee. Dr.
Ziaee has treated Derfler since September 17, 2008. (Tr. 776-777.) At her initial visit, Derfler
reported that she had been without medication for three months and reported loss of temper,
obsessive thoughts, lack of sleep, and anxiety. (Tr. 776.) Dr. Ziaee diagnosed Derfler with
cyclothymia2 and prescribed Trazodone and Lamictal. (Tr. 777.) Dr. Ziaee found that Derfler
had a global assessment functioning score3 (“GAF”) of 45. (Tr. 777.) A GAF score between 41
and 50 indicates serious symptoms or any serious impairment in social, occupational, or school
functioning4.

Derfler continued treatment through July 2011.

Dr. Ziaee’s treatment notes

indicate that Derfler reported generally “doing fine” and her mood was “good overall” on a few
occasions. (Tr. 773-775, 935, 937, 939.) Derfler also reported frustration, social isolation,
anxiety, and some sleep problems. (Tr. 774, 934, 936, 938.) Dr. Ziaee noted that Derfler’s goals
during treatment included maintain mood symptoms, improve anxiety, and improve and stabilize
mood and anxiety symptoms. (Tr. 773-777, 934-940.)
On January 9, 2012, Dr. Ziaee completed a Psychiatric/Psychological Impairment
Questionnaire. (Tr. 912-919.) In her opinion, Dr. Ziaee stated that Derfler was diagnosed with
cyclothymia and her prognosis was fair. (Tr. 912.) Dr. Ziaee noted that she treated Derfler
every 3-6 months.

The positive clinical findings supporting her diagnosis included sleep

disturbance, mood disturbance, emotional lability, anhedonia or pervasive loss of interests,
psychomotor agitation or retardation, and difficulty thinking or concentrating.
2

(Tr. 913.)

Cyclothymic disorder is a “chronic, fluctuating mood disturbance involving numerous periods of hypomanic
symptoms and periods of depressive symptoms that are distinct from each other.” Diagnostic and Statistical Manual
of Mental Disorders 140 (5th ed. 2013) (“DSM-V”).
3
Global Assessment Functioning score is a “clinician’s judgment of the individual’s overall level of functioning.”
Diagnostic and Statistical Manual of Mental Disorders 32 (4th ed. Text Rev. 2000) (“DSM-IV-TR”).
4
DSM-IV-TR at 34.

5

Derfler’s primary symptoms were mood swings, problems sleeping, sadness, and decrease[d]
concentration. (Tr. 914.) Dr. Ziaee opined that Derfler’s current GAF score was 65 and her
lowest score in the previous year was 60. (Tr. 912.) A GAF score of 65 indicates mild
symptoms or some difficulty in social, occupational, or school functioning5. A GAF score of 60
indicates moderate symptoms or moderate difficulty in social, occupational, or school
functioning.6
Dr. Ziaee opined that Derfler was moderate[ly] socially limited. (Tr. 912.) She also
opined that Derfler was moderately limited7 in the ability to remember locations and work-like
procedures; understand, remember, and carry out one or two step instructions; understand,
remember, and carry out detailed instructions; maintain attention and concentration for extended
periods, perform activities within a schedule, maintain regular attendance, and be punctual;
sustain ordinary routine without supervision; and work in coordination with or in proximity to
others without being distracted by them. (Tr. 915.) Dr. Ziaee also found Derfler moderately
limited in the ability to complete a normal workweek without interruptions from psychologically
based symptoms and to perform at a consistent pace without an unreasonable number and length
of rest periods; interact appropriately with the general public, ask simple questions or request
assistance; respond appropriately to changes in the work setting; and set realistic goals or make
plans independently. (Tr. 916-917.) She determined that Derfler was mildly8 limited in the
ability to make simple work related decisions, accept instructions and respond appropriately to
criticism from supervisors, get along with co-workers or peers without distracting them or
exhibiting behavioral extremes, and ability to maintain socially appropriate behavior and to
5

DSM-IV-TR 34.
Id.
7
In the questionnaire, moderately limited was defined as “significantly affects, but does not totally preclude the
individual’s ability to perform the activity.” (Tr. 914.)
8
Mildly limited was defined as “not significantly affecting the individual’s ability to perform the activity.” (Tr.
914.)
6

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adhere to basic standards of neatness and cleanliness. (Tr. 916.) Dr. Ziaee also found that
Derfler was markedly9 limited in the ability to be aware of normal hazards and take appropriate
precautions and the ability to travel to unfamiliar places or use public transportation. (Tr. 917.)
Dr. Ziaee indicated that Derfler was not a malingerer and was capable of tolerating low work
stress. (Tr. 918.) She also indicated that Derfler would have good days and bad days and would
likely be absent more than three times a month as a result of impairments or illness. (Tr. 919.)
The ALJ gave little weight to Dr. Ziaee’s opinion in determining Derfler’s RFC. (Tr.
431-432.) The ALJ stated that Dr. Ziaee’s limitations are much more restrictive than alleged by
the claimant and was inconsistent internally, with her treatment notes, and Derfler’s activities of
daily living. (Tr. 432.) Based on the following, the Court finds that the ALJ should have given
controlling weight to Dr. Ziaee’s opinion. First, Dr. Ziaee’s opinion was consistent with her
treatment notes.

Dr. Ziaee found Derfler moderately limited in most mental work related

activities and mildly or markedly limited in a few activities. (Tr. 915-917.) Her treatment notes
indicate that although Derfler reported generally being “good” overall, she also reported being
emotional, suffering anxiety and nervous symptoms, increased depression, and frustration. (Tr.
773-777, 936, 938.) Dr. Ziaee also observed tangential thoughts and dysthymic affect. (Tr. 777,
936.) Derfler reported that she could not work due mostly to her physical disability, but that
does not discount that her mental impairments could affect her ability to work, especially in
combination with her physical ailments. (Tr. 937.) “When determining whether a claimant can
engage in substantial employment, an ALJ must consider the combination of the claimant’s
mental and physical impairments.” Lauer v. Apfel, 245 F.3d 700, 703 (8th Cir. 2001).

9

Markedly limited was defined as “effectively precludes the individual from performing the activity in a meaningful
manner.” (Tr. 914.)

7

Second, Dr. Ziaee’s opinion was not internally inconsistent. Although at the time of the
opinion, Dr. Ziaee gave Derfler a current GAF score of 65, which indicates mild symptoms, she
also noted that Derfler’s lowest GAF score the past year, indicated moderate symptoms
consistent with her opinion. There is no inconsistency between her findings in the questionnaire
and the fact that at the time it was completed, Derfler’s GAF score was relatively “high.” “It is
inherent in psychotic illnesses that periods of remission will occur, and such remission does not
mean that the disability has ceased. Indeed, one characteristic of mental illness is the presence of
occasional symptom-free periods.” Andler v. Chater, 100 F.3d 1389, 1393 (8th Cir. 1996)
(internal citations omitted). “Although the mere existence of symptom free periods may negate a
finding of disability when a physical ailment is alleged, symptom-free intervals do not
necessarily compel such a finding when a mental disorder is the basis of a claim.” Id. “Unlike
many physical impairments, it is extremely difficult to predict the course of mental illness.
Symptom-free intervals and brief remissions are generally of uncertain duration and marked by
the impending possibility of relapse.” Id. Dr. Ziaee’s opinion of mostly moderate limitations is
consistent with her treatment notes, which show moderate symptoms through most of her
treatment. The ALJ erred in discounting Dr. Ziaee’s opinion regarding the severity of Derfler’s
mental limitations on the basis of one “high” GAF score when the treatment notes evaluated over
time showed consistently moderate limitations not inconsistent with the opinion. See Whitehead
v. Colvin, No. 4:12-CV-1259 CDP, 2013 WL 3388917 at *13 (E.D. Mo. July 8, 2013) (ALJ
erred in discounting treating physician’s opinion where at the time of the opinion, the claimant’s
GAF score was at its highest and treatment notes showed cyclical depression).
Third, Dr. Ziaee’s opinion was not inconsistent with Derfler’s testimony or work activity.
The ALJ found that Dr. Ziaee’s limitations are much more restrictive than are alleged by the

8

claimant. The exhibits cited by the ALJ do not fully support that conclusion. In Derfler’s
undated disability report, Derfler does not provide any information regarding getting along with
others or her ability to understand, remember, or carry out simple instructions. (Tr. 145-153.) In
her hearing testimony on February 14, 2008, Derfler testified, “I get along great with other
people, except I’m not around a lot of people. I think I’m too opinionated, and I don’t like large
groups of people, so I only have a couple of friends.” (Tr. 46.) Derfler also testified, “It’s my
attention span’s pretty short. It’s hard to stay focused, but – my memory’s not great. … I have a
short term memory that’s good.” (Tr. 47.) She also stated that she had “two people helping
[her]” with her classes. (Tr. 47.) Derfler testified that her mental condition is mostly in a
depressive state and she has ups and downs. (Tr. 522-526.)
The ALJ also cited work history reports completed by Derfler that indicate that she held
several jobs during the period of disability. (Tr. 750-757, 764-771.) The ALJ stated that these
multiple temporary jobs, including working for the Census Bureau and a coffee distributing
business suggest she is not as limited as Dr. Ziaee’s opinion suggests. (Tr. 433.) Upon review of
Derfler’s testimony and the work history reports, the Court does not find that they were
inconsistent with Dr. Ziaee’s opinion. Derfler worked at the temporary jobs for a few weeks
each before quitting because she states she was unable to work due to pain and inability to
complete tasks. (Tr. 508-513, 754-755, 764-766.) Derfler also noted that during the census job
she was allowed to work anytime that she wanted, she worked an hour at a time with breaks in
between, and her supervisors helped her with her job. (Tr. 510, 754.) Derfler resigned from the
coffee distributorship, because she lacked the motivation to go to businesses to introduce the
products, make calls, and follow-up with potential buyers.

(Tr. 769.)

Derfler’s need for

accommodations and inability to maintain full-time employment at these jobs supports Derfler’s

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assertion that her impairments affected her ability to perform the required work-related activities
on a regular and continuing basis. See Kelley v. Callahan, 133 F.3d 583, 588 (8th Cir. 1998)
(claimant’s continued employment only through good graces and accommodations of employer
served to corroborate her testimony regarding pain and fatigue). The evidence cited by the ALJ
is not inconsistent with Dr. Ziaee’s opinion. Based on the foregoing, the Court finds that the
ALJ should have given controlling weight to Dr. Ziaee’s opinion.
2.

Dr. Nakra

Next, Derfler contends that the ALJ should have given controlling weight to Dr. Rashmi
Nakra, Derfler’s other treating psychiatrist. The medical records indicate that Dr. Nakra treated
Derfler between 2002 and 2007. (Tr. 259-280, 348-375, 379-384.) On May 1, 2007, Dr. Nakra
completed a psychiatric and psychological impairment questionnaire regarding Derfler. (Tr.
297-304.) Dr. Nakra diagnosed Derfler with bi-polar affective disorder, bi-polar II, major
depressive episode10. (Tr. 297.) Dr. Nakra assessed Derfler’s current GAF as 45 and her highest
the previous year as between 40-46. (Tr. 297.) The positive clinical findings supporting her
diagnosis included sleep disturbance, mood disturbance, emotional lability, psychomotor
agitation, feelings of guilt/worthlessness, difficulty thinking or concentrating, decreased energy,
and hostility and irritability. (Tr. 298.) Dr. Nakra opined that Derfler was markedly limited in
the ability to remember locations and work-like procedures; understand, remember, and carry
detailed instructions; carry out one or two-step instructions; maintain attention and concentration
for extended periods; perform activities within a schedule maintain regular attendance, and be
punctual; sustain ordinary routine without supervision; work in coordination with or proximity to
others without being distracted by them; interact appropriately with the general public; complete

10

Bi-polar II disorder is characterized by a clinical course of recurring mood episodes consisting of one or more
major depressive episodes and at least one hypomanic episode. (DSM-V at 135.)

10

a normal workweek without interruptions from psychologically based symptoms and perform at
a consistent pace without an unreasonable number and length of rest periods. (Tr. 300-301.) Dr.
Nakra also found Derfler markedly limited in the ability to interact appropriately with the general
public; accept instructions and respond appropriately to criticism from supervisors; ability to get
along with co-workers or peers without distracting them or exhibiting behavioral extremes;
maintain socially appropriate behavior and to adhere to basic standards of neatness and
cleanliness; respond appropriately to changes in the work setting; and travel to unfamiliar places
or use public transportation. (Tr. 301-302.) Dr. Nakra also opined that Derfler was moderately
limited in her ability to understand and remember one or two step instructions; make simple
work related decisions; ask simple questions or request assistance; be aware of normal hazards
and take appropriate precautions, and set realistic goals or make plans independently. (Tr. 300302.) Dr. Nakra noted that Derfler was incapable of tolerating even “low stress” work and was
not a malingerer. (Tr. 303.) Dr. Nakra found that Derfler’s psychiatric condition exacerbated
her pain and spinal stenosis. (Tr. 303.) She also noted that Derfler’s impairments would last at
least 12 months and that the impairments would likely produce “good” and “bad” days. (Tr.
303.)
The Court notes that the ALJ and the parties have acknowledged that Dr. Nakra’s
handwritten notes are substantially illegible11. In this case, the ALJ mentions that the notes are
illegible, but then repeatedly cites to the same notes to support her opinion that Dr. Nakra’s
opinion was inconsistent with and unsupported by her own treatment notes and in evaluating
Derfler’s RFC. (Tr. 432.) The ALJ cannot rely upon indecipherable treatment notes in support
of her determination that Dr. Nakra’s notes are internally inconsistent and inconsistent with her

11

The Court notes that Dr. Nakra’s notes are completely handwritten. This is not a case where only a few lines were
indecipherable or the doctor had a form checklist with added handwritten comments.

11

medical opinion. “[I]llegibility of important evidentiary material can warrant a remand for
clarification and supplementation.” Bishop v. Sullivan, 900 F.2d 1259, 1262 (8th Cir. 1990). The
Commissioner contends that “much of Dr. Nakra’s handwritten notes are illegible, but her
legible handwritten notes indicate that Plaintiff’s mental impairments were well-controlled with
medication and did not support Dr. Nakra’s opinion of marked limitations.”

While the

Commissioner is able to decipher phrases out of Dr. Nakra’s notes that favor the Commissioner’s
position, a review of all of Dr. Nakra’s notes indicate that they are substantially illegible.
Selective phrases from five years of medical records cannot constitute substantial evidence.
Therefore, it was improper for the ALJ to rely on Dr. Nakra’s treatment notes to discount Dr.
Nakra’s opinion or discount Derfler’s credibility.
This is the second time that Derfler’s disability claim has come before this Court. See
Derfler v. Astrue, 4:10-CV-203 AGF (E.D. Mo. Mar. 28 2011.) In the previous opinion, the
Court remanded the action to the Commissioner due to the illegibility of Dr. Nakra’s notes and
the failure of the ALJ to provide reasons for the weight given to Dr. Nakra’s opinion. (Tr. 447,
474-480.) The court noted that there was no other mental health evidence in the record, therefore
there was no other evidence providing a sufficient basis for the ALJ’s decision. (Tr. 478-479.)
After the ALJ issued her initial decision, but before the case was remanded, Dr. Nakra retired.
(Tr. 777.) Dr. Nakra is presumably not available now to provide a transcription of the treatment
notes. The notes did not suddenly become legible after remand.
“[T]he ALJ is not qualified to give a medical opinion but may rely on medical evidence
in the record.” Wilcockson v. Astrue, 540 F.3d 878, 881 (8th Cir. 2008). In this case, the ALJ
discounted both of Derfler’s treating psychiatrists without any contradictory mental health
evidence in the record.

Taken together, Dr. Nakra and Dr. Ziaee’s medical opinions are

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consistent with the mental health evidence in the record.

Dr. Nakra’s May 2007 opinion

indicated substantial limitations and serious impairment and it was consistent with Dr. Ziaee’s
initial consultation with Derfler a year later in September 2008, which also indicated Derfler
suffered from a serious impairment in social, occupational, or school functioning (Tr. 297, 777.).
Dr. Ziaee’s treatment notes and opinion indicate that Derfler’s symptoms have improved since
September 2008, but she still has moderate and marked limitations in some areas. The Court
finds that the ALJ erred in assessing no weight to Dr. Nakra’s opinion when there was no other
contradictory medical evidence in the record. Dr. Nakra’s opinion should have been given some
weight.
The Court notes that after the first remand, the ALJ had the option and duty to order a
consultative mental examination for Derfler. There is no bright line test for determining when
the Commissioner has failed to develop the record and the determination is made on a case by
case basis. Battles v. Shalala, 36 F.3d 43, 45 (8th Cir. 1994). The ALJ has a duty to fully
develop the record. Smith v. Barnhart, 435 F.3d 926, 930 (8th Cir. 2006) (internal citation
omitted). In some case, this duty 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), 416.1519a(b). Without Dr. Nakra and Dr. Ziaee’s opinions or a consultative
examination, there was very little medical evidence in the record regarding Derfler’s mental
health.12
The Commissioner contends that Derfler was scheduled for a consultative examination,
but she did not attend, thus inferring the ALJ was not obligated to schedule another one. The
Commissioner’s position is insufficient. On June 9, 2006, the Commissioner denied Derfler’s

12

Derfler’s other physicians, who treated her physical impairments, mentioned her mental impairments and
psychotropic medications in other parts of the medical record.

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claim because “medical evidence shows additional information was needed to evaluate the
severity of the impairments.” (Tr. 72.) The Commissioner noted that an examination was set up,
but the appointment was not kept and efforts to obtain Derfler’s cooperation were unsuccessful.
(Tr. 72.) Social Security regulations requires that claimants appear at consultative examinations
or provide a good reason for failure to do. 20 C.F.R. §§ 404.1518, 416.918. Good reasons for
failure to appear at a consultative examination include illness on the date of the scheduled
examination, not receiving timely notice or any notice of the examination, being furnished
incorrect or incomplete information, or having had a death or serious illness occur in the
claimant’s immediate family. 20 C.F.R. §§ 404.1518(b), 416.918(b).
The ALJ mentioned Derfler’s failure to attend in the ALJ’s opinion and stated that
“claimant has not shown that she was unable to attend this appointment for any reasons set forth
in the regulations.” (Tr. 435.) The ALJ’s statement is speculative. The ALJ held three hearings
in this case and never asked Derfler why she failed to attend the consultative examination. The
ALJ also stated that the “failure to cooperate further undermines the claimant’s allegations
regarding the severity and functional limitations of her impairments.” (Tr. 435.) The Court is
not stating that a claimant’s failure to attend a consultative examination should be without
consequence. The regulations clearly state that the Commissioner may find a claimant not
disabled if the claimant does not have a good reason for failing or refusing to take part in a
consultative examination or test. 20 C.F.R. §§ 404.1518(a), 416.918(a). In this case, however,
the ALJ speculated that Derfler’s reasons for failure to attend the consultative examination failed
to meet the regulatory standards outlined in 20 C.F.R. §§ 404.1518(b), 416.918(b). The ALJ
cannot speculate that Derfler’s reasons, if any, failed to meet the regulatory standard and then
use such failure to discredit her. Because the ALJ placed substantial weight on the failure to

14

attend the consultative examination, the ALJ should have asked Derfler on the record the reasons
for her failure to attend rather than speculating. In summary, the ALJ’s RFC determination
regarding Derfler’s mental health impairments was not supported by substantial evidence in the
record as a whole.
3.

Dr. Gregory

Derfler also contends that the ALJ erred in giving little weight to Dr. Mark H. Gregory’s
opinion. Dr. Gregory has been Derfler’s primary care physician since April 8, 1997. (Tr. 921.)
Dr. Gregory treated Derfler for a variety a medical ailments during this time period. (Tr. 778793, 889-910.) On January 18, 2012, Dr. Gregory drafted a statement and completed a multiple
impairment questionnaire for Derfler. (Tr. 921-930.) In his statement, Dr. Gregory diagnosed
Derfler with hereditary spastic paraplegia and bipolar disorder. (Tr. 921.) He indicated that he
reviewed the consultative records sent to him by Dr. Neill Wright and Dr. Stuart Weiss,
neurosurgeons, and Dr. Nakra.

Dr. Gregory stated that Derfler was basically “wheelchair

bound” and her prognosis for recovery is poor, as there is family history of the spastic paraplegia
that is progressive. (Tr. 921.) Dr. Gregory opined that Derfler was unable to do any physical
labor, and most likely standing for an extensive period of time would be very difficult. (Tr. 921.)
Dr. Gregory also noted that although Derfler was a bright woman, “her psychiatric deficits really
limit her ability to function in high stress environments.” (Tr. 922.)
In the multiple impairment questionnaire, Dr. Gregory stated that Derfler would have a
progressive decline in neurologic function and clinical findings supporting his diagnosis include
pain, weakness, and double spasticity to lower extremities since he has known her. (Tr. 923.)
Dr. Gregory noted that Derfler’s pain level was moderate to moderately severe and her fatigue
level was moderate. (Tr. 925). He opined that Derfler could sit for three hours and stand or walk

15

for one hour in an eight hour work day on a competitive and sustained basis. (Tr. 925.) Dr.
Gregory opined that it was medically recommended or necessary for Derfler to not sit or stand
continuously in a work setting.
limitations for Derfler.

(Tr. 925-926.)

Dr. Gregory did not indicate any weight

He indicated that she had significant limitations doing repetitive

reaching, handling, fingering, or lifting, but in responding to more specific questions indicated
that she had moderate limitations in grasping, turning, and twisting objects and using her arms
for reaching. (Tr. 926-927.) He also indicated that she had no limitations in using her fingers
and hands for fine manipulations. (Tr. 927.) Dr. Gregory conveyed that Derfler’s symptoms
would likely increase if she were placed in a competitive work environment, but she was capable
of low stress jobs. (Tr. 927-928.) Dr. Gregory stated that on average she would likely be absent
from work more than 3 times per month as a result of the impairments or treatment. (Tr. 929.)
The ALJ gave little weight to Dr. Gregory’s opinion stating it was internally inconsistent
and unsupported by other evidence in the record. (Tr. 429-430.) The ALJ cites Dr. Gregory’s
notation in a single medical record that Derfler reported “swimming a lot” and notes where
Derfler reported feeling well to reject Dr. Gregory’s opinion. (Tr. 430.) The Court finds that Dr.
Gregory’s opinion should have been given some weight in accordance with 20 C.F.R.
§§ 404.1527(b), 416.927(b). The 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). The Court agrees that Dr. Gregory’s opinion that Derfler was
wheelchair bound and his opinion regarding her upper extremity limitations were not supported
by other evidence in the record. The Court finds, however, that Dr. Gregory’s opinion can be
given some weight regarding Derfler’s spasticity and sitting, standing, and walking requirements.
The record is undisputed that claimant has limited range of motion in the lumbar spine, exhibits

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spastic and sometimes, unsteady and antalgic gait, and walks with a cane or walker. (Tr. 517521, 802, 805, 812) Although Derfler’s condition improved with epidural steroid treatments and
a radiofrequency ablation, she still experiences lower back pain. (Tr. 798, 804, 811, 818, 825,
830.) The RFC determination did not address these problems caused by Derfler’s impairments.
Dr. Gregory’s opinion was consistent with Dr. Ziaee’s opinion that Derfler could tolerate low
stress work and that she would miss work more than three times per month due to the
impairments or treatment. (Tr. 918-919, 928-929.) Therefore, Dr. Gregory’s opinion was
entitled to at least some weight.
RFC is a medical question. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004).
It is true that “[a] disability claimant has the burden to establish her RFC.” Id. (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). “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)). An examination of the claimant’s ability to function in the workplace
includes consideration of a combination of the claimant’s mental and physical impairments.”
Lauer, 245 F.3d at 703. Based on a review of the record as a whole, the Court finds that the ALJ
should make a new RFC determination regarding Derfler’s physical and mental impairments
consistent with this opinion.

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IV.

Conclusion
Based on the foregoing, the Court finds that the Commissioner’s decision is not

supported by substantial evidence on the record as a whole. The Court has the power to “enter,
upon the pleadings and transcript of the record, a judgment, affirming, modifying, or reversing
the decision of the Commissioner of Social Security, with or without remanding the cause for a
rehearing.” 42 U.S.C. 405(g). When a claimant appeals from the Commissioner’s denial of
benefits and the denial is improper, out of an abundant deference to the ALJ, the Court remands
the case for further administrative proceedings. Buckner v. Apfel, 213, F.3d 1006, 1011 (8th Cir.
2000). “Where the total record convincingly establishes disability and further hearing would
delay the receipt of benefits, this court has ordered the immediate award of benefits without
further delay.” Blakeman v. Asture, 509 F.3d 878, 890 (8th Cir. 2007). That standard has not
been met here, so the Court will remand for further proceedings as outlined below. Because
Derfler applied for benefits in 2006 and it is now 2014, the Commissioner is urged to begin
proceedings without delay and resolve this case as soon as possible.
Upon remand, the ALJ must make a new RFC determination subject to the following
conditions. First, the ALJ shall give controlling weight to Dr. Ziaee’s opinion and at least some
weight to Dr. Nakra’s opinion and Dr. Gregory’s opinion that are consistent with the record as
noted above. Second, the ALJ cannot discredit Derfler’s credibility for failing to attend the
consultative examination without further inquiry into the reasons for a failure to attend. Because
this action will remanded, the Court will not address the vocational expert testimony issues.
Accordingly,

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IT IS HEREBY ORDERED that the relief which Derfler seeks in her Complaint and
Brief in Support of Plaintiff’s Complaint is GRANTED in part and DENIED in part. [Docs.
1, 15.]
IT IS FURTHER ORDERED that the Commissioner’s decision of March 29, 2012 is
REVERSED and REMANDED.
IT IS FURTHER ORDERED that a Judgment of Reversal and Remand will be filed
contemporaneously with this Memorandum and Order remanding this case to the Commissioner
of Social Security for further consideration pursuant to 42 U.S.C. § 405(g), sentence 4.
Dated this 6th day of August, 2014.

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

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