Coley v. Colvin
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED, and this cause is REMANDED for further proceedings.A separate Judgment in accordance with this Memorandum and Order isentered this same date. Signed by Magistrate Judge Shirley P. Mensah on 3/13/15. (ARL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
No. 4:13CV2454 SPM
MEMORANDUM AND ORDER
Plaintiff Wauletta Coley brings this action pursuant to 42 U.S.C. § 405
seeking judicial review of the Commissioner’s final decision denying her claim for
disability insurance benefits (DIB) under Title II of the Social Security Act. All
matters are pending before the undersigned United States Magistrate Judge, with
consent of the parties, pursuant to 28 U.S.C. § 636(c). Because the
Commissioner’s final decision is not supported by substantial evidence on the
record as a whole, it is reversed.
I. Procedural History
On September 19, 2009, the Social Security Administration denied
plaintiff’s July 2009 application for DIB, in which she claimed she became
disabled on December 3, 2008, because of a leg fracture and foot drop. At
plaintiff’s request, a hearing was held before an administrative law judge (ALJ) on
August 17, 2010, at which plaintiff testified. The ALJ denied plaintiff’s claim for
benefits on October 28, 2010, finding the Medical-Vocational Guidelines to direct
a conclusion that plaintiff was not disabled given her ability to perform the full
range of light work. (Tr. 86-97.) Plaintiff thereafter requested the Appeals
Council to review the ALJ’s decision. (Tr. 146-49.)
On October 25, 2011, the Appeals Council vacated the ALJ’s decision and
remanded the matter back to the ALJ for further consideration. Specifically, the
Appeals Council instructed the ALJ to obtain additional evidence concerning
plaintiff’s impairments, further evaluate plaintiff’s mental impairment in
accordance with the Regulations, give further consideration to plaintiff’s residual
functional capacity (RFC) with appropriate rationale and reference to the record,
and obtain vocational expert testimony to clarify the extent to which plaintiff’s
limitations affect the occupational base. (Tr. 101-06.)
Upon remand, the ALJ held a supplemental hearing on April 23, 2012, at
which plaintiff and a vocational expert testified. (Tr. 48-77.) On July 5, 2012, the
ALJ denied plaintiff’s claim for benefits, finding vocational expert testimony to
support a finding that plaintiff can perform work as it exists in significant numbers
in the national economy. (Tr. 6-21.)1 On October 24, 2013, the Appeals Council
In both of her decisions, the ALJ refers to an application for supplemental security income
denied plaintiff’s request for review of the ALJ’s decision. The ALJ’s decision of
July 5, 2012, thus became the final decision of the Commissioner. 42 U.S.C. §
In this action for judicial review, plaintiff raises numerous claims that the
ALJ’s decision is not supported by substantial evidence on the record as a whole.
Specifically, plaintiff argues that the ALJ erred by failing to indicate what weight
she accorded the medical evidence of record and failed to identify the medical
evidence supporting her decision that plaintiff was capable of performing light
work. Plaintiff also contends that the ALJ failed to undergo the required analysis
in determining her credibility. Finally, plaintiff argues that because the ALJ’s RFC
determination is not supported by substantial evidence, the resulting hypothetical
question posed to the vocational expert was likewise not supported by substantial
evidence and the ALJ thus erred by relying on vocational expert testimony to find
her not disabled. For the reasons that follow, plaintiff’s arguments are well taken
and the matter will be remanded to the Commissioner for further consideration.
(SSI) that was purportedly filed by plaintiff in November 2009. (See Tr. 9, 89.) The
administrative transcript does not contain such an application or any initial ruling(s) by the
Social Security Administration on an SSI application. In her Brief in Support of the Complaint,
plaintiff refers only to her application for DIB. In view of the record and the nature of plaintiff’s
claim, the Court considers plaintiff’s application for DIB to be the only application before it on
II. Evidence Before the ALJ
Plaintiff was involved in an automobile accident on December 3, 2008, and
sustained multiple fractures to her right femur. Plaintiff was thirty-one years of
age. She underwent internal fixation surgery for placement of pins and rods and
was hospitalized through December 10. (Tr. 390-92, 396-97, 417.) Plaintiff
returned to the hospital on December 12 after sustaining a fall, but only swelling
was noted about the legs. Plaintiff’s surgical repair to the right leg remained intact.
In February 2009, plaintiff began seeing Dr. William Ricci at Washington
University Orthopedics who noted plaintiff to have foot drop as a result of her leg
injury. An ankle-foot orthosis (AFO) was provided, and Dr. Ricci instructed
plaintiff to begin weight-bearing activities. (Tr. 484.) Through June 2009, Dr.
Ricci noted plaintiff to have minimal pain associated with her leg injury, including
no significant pain with range of motion exercises. Although plaintiff experienced
frustration regarding her foot drop, Dr. Ricci noted that plaintiff was able to engage
in full weight bearing activities. (Tr. 486, 488.)
Plaintiff participated in physical therapy at SSM Rehab beginning in June
2009. Plaintiff initially experienced little pain, if any, but reported that ambulating
and going up and down stairs exacerbated her pain. Examination showed plaintiff
to have no strength about the tibialis anterior and extensor hallucis longus;
significantly decreased strength about the gastroenemius; and mildly decreased
strength about the iliopsoas, quadriceps, and gluteus maximus/hamstrings.
Plaintiff’s goals for therapy included addressing joint range of motion and
ambulation, improving her ability to go up and down stairs safely, improving
strength, and retraining to do activities of daily living. (Tr. 519-21.)
In July 2009, Dr. Ricci informed plaintiff’s employer’s insurance carrier that
plaintiff could to return to work full duty with no restrictions. (Tr. 512.)
Plaintiff’s primary care physician, Dr. Christopher M. Perry, likewise informed the
insurance carrier that plaintiff was medically cleared to drive. (Tr. 463.)
Upon Dr. Ricci’s observation that there was no return of function in relation
to plaintiff’s foot drop, plaintiff underwent EMG/nerve conduction studies on July
22, 2009, which showed severe right sciatic nerve injury affecting both the
peroneal and tibial divisions. Prognosis for further recovery was guarded given the
lack of motor units. (Tr. 490-91.) On that same date, plaintiff reported to her
physical therapist that her knee and buttock pain had worsened to a level four on a
scale of one to ten after she had walked for three hours at a store. (Tr. 527.)
Between July 3 and September 2, 2009, plaintiff participated in physical
therapy on fourteen occasions. Although plaintiff initially reported having no pain,
she began to consistently complain of worsening knee pain in August with the pain
reported to be at a level three or four. Plaintiff also reported tingling and
intermittent pain in her right foot. It was noted that plaintiff progressed slowly
with physical therapy, but improvement in strength was evident. (Tr. 523-37.)
On October 20, 2009, plaintiff returned to Dr. Ricci who noted plaintiff to be
doing reasonably well and to be full weight bearing with no assistive device.
Plaintiff reported that she felt she was getting some strength back in her ankle.
Physical examination showed plaintiff to have range of motion about the hip, knee,
and ankle without pain and to have minimal dorsiflexion strength of the ankle.
Continued foot drop was noted. Dr. Ricci recommended physical therapy and
instructed plaintiff to return in February 2010. (Tr. 553.)
Plaintiff visited Dr. John Metzler at Washington University Orthopedics on
January 6, 2010, and complained of continuing weakness and pain in her right foot,
with the pain having increased the previous two months. Plaintiff reported the pain
to range from a level seven to nine on a scale of one to ten. Plaintiff reported the
pain to be most severe when she wears a shoe on the right foot. Plaintiff was
currently taking no pain medication. Plaintiff expressed concern about her ability
to return to work and stated that she would like to return to her job as a bus driver.
Physical examination showed full strength bilaterally with hip and knee extension.
Limited range of motion was noted about the right knee with flexion as well as
with plantar flexion on the right. Plaintiff was noted to have trace great toe
extension and dorsiflexion on the right. Mild decreased sensation was noted about
the right foot. Straight leg raising elicited no pain. Dr. Metzler diagnosed plaintiff
with right sciatic nerve injury and history of right midshaft femur fracture, status
post open reduction internal fixation. Dr. Metzler prescribed Neurontin2 and
instructed plaintiff to contact him in two weeks if there was no improvement. (Tr.
Plaintiff visited Dr. Perry on February 15, 2010, and reported being
depressed because of her inability to work due to foot drop. Plaintiff reported that
she stopped going to physical therapy because she did not think it was helping her
condition. Dr. Perry prescribed Celexa3 and suggested that plaintiff follow up with
her orthopedist. (Tr. 544-45.)
Plaintiff thereafter visited Dr. Ricci on February 23 and complained of
continued pain in her leg, and specifically radiating pain from her foot to her knee.
Dr. Ricci stated that he could not justify a finding that plaintiff was permanently
disabled given her ability to ambulate full weight bearing with no assistive device.
Dr. Ricci refilled plaintiff’s prescription for Neurontin and suggested that plaintiff
obtain another opinion if she thought her pain level prevented her ability to work.
Neurontin (Gabapentin) is used to help relieve the pain of postherpetic neuralgia. Medline Plus
(last revised July 15, 2011).
Celexa (Citalopram) is used to treat depression. Medline Plus (last revised Nov. 15, 2014)
Dr. Ricci recommended that plaintiff see Dr. Susan Mackinnon for further
evaluation and management of her nerve injury. (Tr. 563.) However, when
plaintiff followed up in May 2010 with complaints of thigh pain and chronic pain
radiating from her knee to her foot, Dr. Ricci noted that plaintiff’s femur fracture
and foot drop were permanent conditions and opined that plaintiff’s pain would
likely be chronic and permanent. Dr. Ricci opined that such conditions would
likely “preclude her from jobs, like her old job of driving a bus since she has a foot
drop and cannot adequately control the accelerator. She states that her pain level
inhibits her from sitting for long periods of time.” Dr. Ricci reported that plaintiff
would need the AFO on a permanent basis. Noting that plaintiff had not yet seen
Dr. Mackinnon, Dr. Ricci reported that he would work on getting plaintiff in to see
her, and that he would see plaintiff on an as-needed basis. (Tr. 566.) In early July
2010, Dr. Ricci prescribed Gabapentin and Tramadol4 for plaintiff. (Tr. 569-70.)
On July 19, 2010, plaintiff visited Dr. Bakul Dave, a pain specialist at
Washington University, and regularly saw him thereafter for her complaints of low
back pain radiating down her right leg, foot drop, and chronic nerve pain. At this
initial visit in July 2010, Dr. Dave diagnosed plaintiff with chronic pain secondary
to traumatic injury of right fractured femur, right foot drop, and chronic
Tramadol (Ultram) is a narcotic analgesic used to relieve moderate to moderately severe pain.
Medline Plus (last revised Oct. 15, 2013).
neuropathic pain of the right lower extremity. Noting that Neurontin had not
helped plaintiff’s pain, Dr. Dave prescribed Lyrica.5 (Tr. 548-49.) Beginning in
August 2010, however, Dr. Dave prescribed Percocet6 for plaintiff inasmuch as
coverage for Lyrica was denied. Plaintiff was also instructed to increase her
dosage of Trazodone.7 (Tr. 550-52.)
Dr. Dave periodically adjusted plaintiff’s dosage of Percocet given that the
medication provided only partial relief, if any. In October 2010, Dr. Dave
determined that plaintiff could benefit from the surgical implantation of a spinal
cord stimulator, and steps were taken to approve the procedure.8 (Tr. 573-75, 578,
580, 585-90.) In late October 2010, Dr. Dave prescribed MSIR (morphine sulfate
immediate release),9 and plaintiff continued on this medication through March
2011. (Tr. 572, 577, 584.) During her visit in March, plaintiff reported to Dr.
Dave that MSIR did not provide any greater relief than Percocet, and Percocet was
Lyrica is used to relieve neuropathic pain. Medline Plus (last revised Sept. 1, 2009).
Percocet (oxycodone) is a narcotic analgesic used to relieve moderate to severe pain. Medline
Plus (last revised Oct. 15, 2014)< http://www.nlm.nih.gov/medlineplus/druginfo/meds/
Trazodone is used to treat depression. Medline Plus (last revised Nov. 15, 2014). There is no indication in the
record as to when Trazodone was prescribed for plaintiff or by whom.
The record shows Medicaid never to have approved the procedure.
Morphine is a narcotic analgesic used to relieve moderate to severe pain. Medline Plus (last
revised Aug. 15, 2014).
restarted. Plaintiff was also prescribed Cymbalta at this time.10 Dr. Dave
diagnosed plaintiff with right lower extremity causalgia. (Tr. 601-03.)11 In May,
plaintiff continued to report to Dr. Dave that medication did not help her pain.
Examination showed increased sensitivity about the right leg. (Tr. 598-600.)
By October 2011, plaintiff was prescribed Fentanyl patches12 in addition to
Percocet in response to Dr. Dave’s observation that she was experiencing
worsening pain. Plaintiff reported that Fentanyl provided only short term relief.
Plaintiff was now diagnosed with causalgia of lower limb, chronic pain, and RSD
of the lower limb. (Tr. 607-08.) Plaintiff continued with Fentanyl and Percocet
through April 2012, at which time Dr. Dave added Ultram to the medication
regimen. During this April visit, Dr. Dave noted that plaintiff had fallen in January
and was experiencing pain in her lower back that radiated to the right leg as well as
Cymbalta is used to treat depression and generalized anxiety disorder, as well as pain and
tingling caused by diabetic neuropathy, fibromyalgia, and ongoing bone or muscle pain. Medline
Plus (last revised Nov. 15, 2014).
Causalgia, also known as complex regional pain syndrome or reflex sympathetic dystrophy
syndrome (RSD), is a chronic pain condition that often affects an arm or a leg and occurs most
often after injury. The key symptom of causalgia is intense and burning pain that is much
stronger than would be expected for the type of injury; that gets worse over time; and begins at
the point of injury but may spread to the whole limb or to the limb on the opposite side of the
body. Complex Regional Pain Syndrome, Medline Plus (updated Feb. 24, 2014).
Fentanyl (Duragesic) patches are used to relieve severe pain in people who are expected to
need pain medication around the clock for a long time and who cannot be treated with other
medications. Fentanyl is narcotic analgesic. Medline Plus (last revised Aug. 15,
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pain radiating from the left thigh to the foot. Plaintiff reported that her pain
worsened with walking, cold weather, standing, and prolonged sitting but
improved somewhat with medication and lying down. Plaintiff’s pain was
currently at a level ten. Physical examination showed slightly decreased power
and reflexes to be 1+. Plantar reflexes were equivocal. Sensation to light touch
was normal. Range of motion about the lumbar spine was noted to be decreased in
flexion and extension. Dr. Dave noted plaintiff to have some radicular symptoms
and positive straight leg raising on the left. Plaintiff was diagnosed with lumbar
degenerative disc disease, lumbar radiculopathy, other chronic pain, and RSD of
the right lower extremity. A subsequent MRI showed minimal degenerative
changes of the lumbar spine. (Tr. 618-22.)
Between July 2010 and April 2012, plaintiff visited Dr. Dave on no less than
fourteen occasions and continually reported her pain to be at a level eight through
ten and that such pain severely interfered with her sleep, general activity, mood,
relations with others, normal work, enjoyment of life, and ability to concentrate.
Plaintiff also reported during this period that her pain worsened with cold weather,
walking, bending, prolonged sitting, lying down, stress, exercise, and rest but
sometimes improved with heat and medication.
The record also contains a letter dated April 18, 2012, from Gerard W.
Boehmer, a chiropractor, who wrote that he examined plaintiff on March 28, 2012,
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in relation to injuries sustained in an automobile collision of January 16, 2012. Dr.
Boehmer wrote that he diagnosed plaintiff with acceleration/deceleration injury to
cervical spine; cervicalgia/neck pain; acute traumatic cervical spine sprain/strain;
cervical, thoracic, and lumbosacral muscle spasms; lumbalgia; lumbar sprain/
strain; left leg length discrepancy; right foot paralysis; and hyporeflexia of right
foot/leg. (Tr. 616-17.) No treatment notes from this March 28 examination appear
in the record.
Dr. Boehmer also completed a Physical RFC Questionnaire on April 18,
2012, in which he reported plaintiff to be experiencing right thigh and leg pain at a
level ten, and low back and neck pain at a level nine. Dr. Boehmer reported that
plaintiff currently takes oxycodone, Cymbalta, Sertraline, and uses pain patches,
and also undergoes chiropractic manipulation with stimulation. Dr. Boehmer
opined that plaintiff’s impairments can be expected to last at least twelve months.
Dr. Boehmer opined that plaintiff’s pain would constantly interfere with the
attention and concentration necessary to perform even simple work tasks. Dr.
Boehmer opined that plaintiff could not walk any number of city blocks without
rest or severe pain. Dr. Boehmer further opined that plaintiff could sit and/or stand
continuously for five minutes and must lie down after such activity. Dr. Boehmer
opined that plaintiff could sit and/or stand for a total of less than two hours in an
eight-hour workday. Dr. Boehmer opined that plaintiff must be able to walk for
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two minutes about every fifteen minutes during the day and could not work an
eight-hour workday. Dr. Boehmer reported that plaintiff cannot shift positions.
Dr. Boehmer reported that plaintiff would need to take more than ten unscheduled
work breaks during an average workday and would need to rest for more than two
hours during the day. Dr. Boehmer reported that plaintiff needed to elevate her
legs while sitting and needed to use a cane or other assistive device while standing
or walking. Dr. Boehmer opined that plaintiff could lift no weight and could never
engage in postural activities such as twisting, bending, or crouching. Dr. Boehmer
opined that plaintiff could frequently hold her head in a stable position but could
only occasionally turn her head to the right or left, look up, and look down. Dr.
Boehmer opined that plaintiff had significant limitations with reaching, handling,
and fingering and could not engage in any such activities throughout the workday.
Dr. Boehmer reported plaintiff to have “all bad” days. (Tr. 611-15.) Dr. Boehmer
No tolerance with pain for anything. Becoming depressed with pain
cycles and inability of function as described. No recommendation for
working until patient improves, which at this point in care is
extremely guarded. No sign of improvement for at least 2 years,
maybe never. Patient is willing to work when she becomes capable
(not in any foreseeable future).
As noted above, Dr. Perry first prescribed Celexa for plaintiff in February
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2010 given her reports of feeling depressed because of her inability to work. (Tr.
544-45.) In July 2010, Dr. Dave noted plaintiff to be taking Celexa (Citalopram),
and plaintiff reported not feeling depressed. (Tr. 548-49.)
In October 2010, plaintiff underwent a pain psychological evaluation in
relation to her possible receipt of a spinal cord stimulator. Barbara Field, Ph.D.,
noted plaintiff to be taking oxycodone every five hours for pain. Plaintiff reported
her pain to worsen with walking, lifting, bending, lying down, weather and
temperature changes, standing, sitting, stress and worry, heat, ice, and rest and that
medication had no effect on the pain. Plaintiff reported the pain to be located in
her right hip to the foot, but also reported having pain in her left leg possibly
related to her change in gait. Dr. Field did not observe any pain behaviors. Mental
status examination was essentially normal. Plaintiff described her mood as
“grumpy,” but Dr. Field observed her affect to be euthymic. Dr. Field noted
plaintiff to be taking Celexa for depression as prescribed by her primary physician.
Dr. Field diagnosed plaintiff with depression and assigned a Global Assessment of
Functioning score of 68, indicating mild symptoms. Dr. Field recommended that
plaintiff’s antidepressant be increased to address her mood symptoms. Dr. Field
further recommended that plaintiff receive additional education about spinal cord
stimulation and participate in a ten-week pain management program after receiving
the spinal cord stimulator. (Tr. 592-94.)
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Plaintiff visited Dr. Field on November 22, 2010, who noted plaintiff to be
tearful and depressed. Plaintiff reported that she was denied disability benefits and
was having financial difficulties. Plaintiff reported that she cries much of the day
and often cannot sleep because of worry. Plaintiff reported sometimes not wanting
to live but denied any intent to harm herself. Plaintiff reported spending most of
the day in bed with little motivation to do anything. A plan was established,
including plaintiff calling her primary care physician for an increase in Citalopram.
Plaintiff was instructed to return in one week. (Tr. 595.)
On December 16, 2010, plaintiff visited Dr. Field who noted plaintiff to be
predominantly euthymic. Plaintiff reported having had positive experiences and an
improved mood. Plaintiff reported her primary physician not to have increased her
Celexa but instead to recommend inpatient treatment in a psychiatry unit, which
she did not do. Plaintiff reported that she went to church more often, which was
helpful. Plaintiff reported continued feelings of depression and having some
suicidal thoughts but no intent. Plaintiff reported that she is able to fall asleep with
Trazodone but is awakened by pain and worry. It was noted that plaintiff did not
go out with friends to socialize but that they call or come visit her. Plaintiff was
noted to rarely get out of the house. Plaintiff agreed to contact her primary care
physician again about increasing her Citalopram. (Tr. 596.)
Plaintiff returned to Dr. Field on January 4, 2011, and reported having
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socialized with friends and family over the holidays, including going out to eat, to
a movie, and to the market. Dr. Field noted plaintiff to have a brighter affect and a
much improved mood. Plaintiff reported her primary care physician not to have
yet increased her antidepressant. It was noted that a request for a spinal cord
stimulator was denied again, and plaintiff expressed disappointment and frustration
with that circumstance. Plaintiff reported the possibility of returning to school.
The record shows that plaintiff visited the Missouri Office of Vocational
Rehabilitation in February and November 2011. In February, plaintiff reported
that she needed sedentary employment and would like to work in an office setting.
Plaintiff reported her medical history to include multiple femur fractures with
surgery, constant pain in the femur area, foot drop, and depression. Plaintiff
reported that she is unable to stand, sit, or walk for long periods of time and that,
although sitting is the best of the three, her lower extremity becomes numb.
Plaintiff also reported that depression affects her concentration, memory, and
energy. Plaintiff was given information regarding vocational services. (Tr. 273.)
In November, plaintiff reported to vocational rehabilitation that constant
pain prevents her from walking or standing for long periods of time. Plaintiff also
reported her leg to quickly tire. Plaintiff reported that she wanted to work but was
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physically unable to do so at the present time. It was noted that plaintiff’s
insurance provider continued to recommend medication therapy instead of surgery
for a spinal cord stimulator, and plaintiff was hopeful that the surgery would be
approved if she was awarded disability benefits. Plaintiff indicated that she would
continue to work on her typing skills for possible clerical work. (Tr. 274.)
Hearing Held August 17, 2010
At the hearing on August 17, 2010, plaintiff testified in response to
questions posed by the ALJ and counsel. Plaintiff was thirty-three years of age at
the time of the hearing. Plaintiff lived in an apartment with her three children, ages
seventeen years, twelve years, and twenty months. Plaintiff testified that she had
her general equivalency diploma (GED) and received additional training in home
health care and as a bus driver. Plaintiff also testified that she received Medicaid
assistance. (Tr. 29, 37.)
Plaintiff testified that after the accident in December 2008, she experienced
swelling in her leg for about eight months and was on bed rest. Plaintiff testified
that she also experienced pain and could not walk or do anything during this time.
Plaintiff testified that her doctor arranged for rehabilitation to strengthen her leg
but that the program did not work. (Tr. 32-34.)
Plaintiff testified that nerve damage from her leg injury causes foot drop and
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that her foot “just hang[s] there.” Plaintiff testified that she experiences serious
pain from her foot up to her right buttock and that her doctors have suggested that
the nerve might be trying to come back. Plaintiff testified that the pain has
worsened. Plaintiff wears a brace on her right leg and uses a four-pronged cane to
help her walk. Plaintiff testified that she also has problems with her left leg
because of overuse. (Tr. 34-36.) Plaintiff testified she currently takes
hydrocodone, Tramadol, and Trazodone for the pain but that the medication does
not help. Plaintiff testified that Lyrica was also prescribed but not approved by
Medicaid, and that her pain management specialist suggested that she have a pain
pump implanted. (Tr. 36-37.)
Plaintiff testified that she is in constant pain and that the pain is currently at
a level eight on a scale of one to ten. Plaintiff testified that she was referred to the
pain specialist because of worsening pain. (Tr. 38-39.) Plaintiff testified that there
has never been a period during which she experienced improvement in her pain.
Plaintiff testified that she also takes prescribed medication for depression,
which stems from her pain and her inability to work and care for her children. (Tr.
As to her exertional abilities, plaintiff testified that she can stand for about
thirty minutes before her legs become weak. Plaintiff can walk for fifteen to
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twenty minutes. Plaintiff testified that she can sit for about thirty minutes before
her feet become numb. Plaintiff can lift her child who weighs about thirty pounds,
but she cannot walk while carrying her. (Tr. 44-45.)
Plaintiff testified that her seventeen-year-old daughter helps with household
chores such as cooking and laundry, and everyone pitches in to help. Plaintiff
testified that she sometimes vacuums but her children do most of the work because
she tires easily and because of the pain in her leg. Plaintiff testified that the pain
interferes with her sleep and her ability to concentrate. (Tr. 42.) Plaintiff no
longer attends her children’s school activities. (Tr. 46.)
Hearing Held April 23, 2012
At the hearing on April 23, 2012, plaintiff testified in response to questions
posed by the ALJ and counsel. At the time of the hearing, plaintiff lived in a house
with her three children and her mother. Plaintiff was taking classes to obtain her
GED but had to take a break because of a recent fall. (Tr. 51-52.) Plaintiff
testified that she has fallen three times since the accident. Plaintiff continued to
wear a brace on her right leg. (Tr. 58.) Plaintiff currently weighed 237 pounds,
which was eighteen pounds more than before the accident. (Tr. 63.)
Plaintiff’s Work History Report shows that plaintiff worked as a dietary aide
in 1995, 1996, and 2000. Plaintiff worked in a hair salon for one month in 2001.
(Tr. 276.) Plaintiff testified that, prior to the accident, she also cleaned houses,
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worked in the deli at Schnucks Market, was a cashier at Wal-Mart, was a bus
driver for Riverview Gardens School District, and worked as a home healthcare
provider. (Tr. 67, 70-72.) Plaintiff’s attempt at vocational rehabilitation after the
accident was unsuccessful because of pain, depression, and the effects of her
medication. (Tr. 54.)
Plaintiff testified that she has severe stabbing, throbbing, and aching pain
from her back to her foot. Plaintiff testified that walking, standing, and moving
around aggravate her pain. Plaintiff can stand ten to thirty-five minutes and can
walk about ten minutes. Plaintiff experiences pain in the thigh area if she sits too
long. (Tr. 62-63, 65.)
Plaintiff testified that her doctors have recommended additional surgery to
place a stimulator in her back but that Medicaid will not pay for it. (Tr. 59.)
Plaintiff testified that she has also been prescribed pain patches but that the
pharmacy usually does not have them in stock. Plaintiff further testified that,
regardless, there is no change in her pain when she has the patch. Plaintiff testified
that nothing helps her pain despite being treated by the pain clinic at Washington
University with medication and being referred to a neurologist. (Tr. 60-62.)
As to her daily activities, plaintiff testified that pain affects her ability to do
housework, cook, and go to church. Plaintiff gets a lot of help from her children
and her mother. Plaintiff’s older children, mother, and father also help care for her
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three-year-old child. Plaintiff testified that her ability to focus and engage in daily
activities is also affected by her depression. Plaintiff testified that she lies down a
lot during the day because she is depressed and because she tires easily and her
legs become weak. (Tr. 62, 64-66.)
Delores Gonzales, a vocational expert, also testified at the hearing on April
23, 2012. Ms. Gonzales classified plaintiff’s past work as a school bus driver and
home health aide as medium and semi-skilled; as a day worker as medium and
unskilled; and as a retail cashier as light and semi-skilled. (Tr. 72.)
The ALJ asked Ms. Gonzales to assume that plaintiff was limited to light,
unskilled work, to which Ms. Gonzales testified that plaintiff could not perform
any of her past relevant work. Ms. Gonzales testified that she could perform other
work, however, such as housekeeping cleaner, of which 9,406 such jobs exist in
the State of Missouri and 218,560 nationally; small products assembler, of which
607 such jobs exist in the State of Missouri and 20,191 nationally; and hand
presser, of which 756 such jobs exist in the State of Missouri and 48,092
nationally. (Tr. 73.)
Counsel asked Ms. Gonzales to assume an individual whose pain would
occasionally interfere with productivity, to which Ms. Gonzales testified that such
circumstance would preclude the performance of the jobs to which she previously
testified. Ms. Gonzales also testified that accommodations would be required for a
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person who needed to take rest breaks in addition to those ordinarily provided by
an employer. (Tr. 74-75.)
IV. The ALJ's Decision
The ALJ found that plaintiff met the insured status requirements of the
Social Security Act through December 31, 2013. The ALJ found that plaintiff had
not engaged in substantial gainful activity since December 3, 2008, the alleged
onset date of disability. The ALJ found plaintiff’s previous right femur fracture
with related chronic nerve pain, right foot drop, chronic neuropathic pain, and
causalgia of the right lower extremity to be severe impairments, but that plaintiff
did not have an impairment or combination of impairments that met or medically
equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr.
12-13.)13 The ALJ found that plaintiff had the RFC to occasionally lift and carry
up to twenty pounds and ten pounds frequently, stand or walk six hours out of an
eight-hour workday, sit six hours out of an eight-hour workday, and was limited to
unskilled work because of depression and physical pain. (Tr. 14.) The ALJ
determined plaintiff unable to perform any of her past relevant work. Considering
plaintiff’s age, education, work experience, and RFC, the ALJ determined
vocational expert testimony to support a finding that plaintiff could perform other
The ALJ appeared to find plaintiff’s obesity, minimal degenerative changes of the lumbar
spine, and depression not to be severe impairments. (Tr. 12.)
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work as it exists in significant numbers in the national economy, and specifically,
housekeeper, small products assembler, and hand presser. The ALJ therefore
found that plaintiff was not under a disability from December 3, 2008, through the
date of the decision. (Tr. 19-21.)
To be eligible for DIB under the Social Security Act, plaintiff must prove
that she is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001);
Baker v. Secretary of Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992).
The Social Security Act defines disability as the "inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has lasted or
can be expected to last for a continuous period of not less than 12 months." 42
U.S.C. § 423(d)(1)(A). An individual will be declared disabled "only if [her]
physical or mental impairment or impairments are of such severity that [she] 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." 42 U.S.C. § 423(d)(2)(A).
To determine whether a claimant is disabled, the Commissioner engages in a
five-step evaluation process. See 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482
U.S. 137, 140-42 (1987). The Commissioner begins by deciding whether the
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claimant is engaged in substantial gainful activity. If the claimant is working,
disability benefits are denied. Next, the Commissioner decides whether the
claimant has a “severe” impairment or combination of impairments, meaning that
which significantly limits her ability to do basic work activities. If the claimant's
impairment(s) is not severe, then she is not disabled. The Commissioner then
determines whether claimant's impairment(s) meets or equals one of the
impairments listed in 20 C.F.R., Part 4, Subpart P, Appendix 1. If claimant's
impairment(s) is equivalent to one of the listed impairments, she is conclusively
disabled. At the fourth step, the Commissioner establishes whether the claimant
can perform her past relevant work. If so, the claimant is not disabled. Finally, the
Commissioner evaluates various factors to determine whether the claimant is
capable of performing any other work in the economy. If not, the claimant is
declared disabled and becomes entitled to disability benefits.
The decision of the Commissioner must be affirmed if it is supported by
substantial evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v.
Perales, 402 U.S. 389, 401 (1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir.
2002). Substantial evidence is less than a preponderance but enough that a
reasonable person would find it adequate to support the conclusion. Johnson v.
Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001). This “substantial evidence test,”
however, is “more than a mere search of the record for evidence supporting the
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Commissioner’s findings.” Coleman v. Astrue, 498 F.3d 767, 770 (8th Cir. 2007)
(internal quotation marks and citation omitted). “Substantial evidence on the
record as a whole . . . requires a more scrutinizing analysis.” Id. (internal quotation
marks and citations omitted).
To determine whether the Commissioner's decision is supported by
substantial evidence on the record as a whole, the Court must review the entire
administrative record and consider:
The credibility findings made by the ALJ.
The plaintiff's vocational factors.
The medical evidence from treating and consulting physicians.
The plaintiff's subjective complaints relating to exertional and
non-exertional activities and impairments.
Any corroboration by third parties of the plaintiff's
The testimony of vocational experts when required which is
based upon a proper hypothetical question which sets forth the
Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir.
1992) (internal citations omitted). The Court must also consider any evidence
which fairly detracts from the Commissioner’s decision. Coleman, 498 F.3d at
770; Warburton v. Apfel, 188 F.3d 1047, 1050 (8th Cir. 1999). “If, after reviewing
the entire record, it is possible to draw two inconsistent positions, and the
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Commissioner has adopted one of those positions,” the Commissioner’s decision
must be affirmed. Anderson v. Astrue, 696 F.3d 790, 793 (8th Cir. 2012). The
decision may not be reversed merely because substantial evidence could also
support a contrary outcome. Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000).
Plaintiff challenges the manner and method by which the ALJ determined
her RFC, arguing that the ALJ failed to weigh the medical evidence of record and
failed to cite sufficient medical evidence to support her RFC findings. Plaintiff
also claims that the ALJ erred in her analysis finding plaintiff’s subjective
complaints not to be credible. Plaintiff also contends that the ALJ erred by relying
on vocational expert testimony to find plaintiff not disabled inasmuch as the
hypothetical question posed to the expert was based on an RFC determination that
was not supported by substantial evidence. Because the ALJ’s final decision is not
supported by substantial evidence on the record as a whole, the matter will be
remanded for further proceedings.
Before determining a claimant’s RFC, the ALJ must first evaluate the
claimant’s credibility. Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Tellez
v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005). In so doing, the ALJ must consider
all evidence relating to the complaints, including the claimant’s prior work record
and third party observations as to the claimant's daily activities; the duration,
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frequency and intensity of the symptoms; any precipitating and aggravating
factors; the dosage, effectiveness and side effects of medication; and any
functional restrictions. Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)
(subsequent history omitted). When rejecting a claimant's subjective complaints,
the ALJ must make an express credibility determination detailing her reasons for
discrediting the testimony. Renstrom v. Astrue, 680 F.3d 1057, 1066 (8th Cir.
2012); Cline v. Sullivan, 939 F.2d 560, 565 (8th Cir. 1991). An ALJ must do more
than merely invoke Polaski to insure "safe passage for his or her decision through
the course of appellate review." Harris v. Shalala, 45 F.3d 1190, 1193 (8th Cir.
1995). Instead, when making credibility determinations, “the ALJ must set forth
the inconsistencies in the evidence presented and discuss the factors set forth in
Polaski[.]” Cline, 939 F.2d at 565; see also Renstrom, 680 F.3d at 1066; Beckley
v. Apfel, 152 F.3d 1056, 1059-60 (8th Cir. 1998). It is not enough to merely state
that inconsistencies are said to exist. Cline, 939 F.2d at 565.
A review of the ALJ’s credibility determination here shows the ALJ to have
merely invoked Polaski without giving any meaningful consideration to the
Polaski factors. The ALJ instead discredited plaintiff’s subjective complaints of
pain by relying only on objective medical evidence from Dr. Ricci’s records in
2009 and early 2010 that reported plaintiff to have minimal pain, to be full weight
bearing, and to have adequate range of motion; and on x-rays showing that
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plaintiff’s internal fixation surgery had healed. An ALJ may not discredit a
claimant’s subjective complaints, however, solely because they are unsupported by
objective medical evidence. Renstrom, 680 F.3d at 1066; Polaski, 739 F.2d at
1322. Indeed, “objective evidence is not needed to support subjective evidence of
pain.” Tome v. Schweiker, 724 F.2d 711, 713 (8th Cir. 1984).
Despite there being substantial evidence of record from which plaintiff’s
subjective complaints of pain could be properly considered under Polaski, the
ALJ’s decision is devoid of such consideration. The ALJ gave no consideration,
for instance, to the substantial evidence showing the increasing duration,
frequency, and intensity of plaintiff’s pain as demonstrated by her need for
significant pain medication – which itself increased in intensity and dosage given
its failure to provide relief. With respect to this need for medication, the record
shows that, beginning in July 2010 and continuing thereafter, narcotic analgesic
medications – including morphine – were prescribed for moderate to severe pain,
and such medications were continually adjusted and/or changed because of
inadequate relief. By October 2011, plaintiff was being prescribed Fentanyl, a
narcotic pain medication used for around the clock relief of severe pain. In April
2012, plaintiff’s pain specialist prescribed Fentanyl, oxycodone, and Ultram –
three narcotic medications – for plaintiff’s pain. In addition, the record shows
plaintiff’s pain specialist to have continually sought approval for plaintiff to
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undergo surgery to implant a spinal cord stimulator. Such surgery did not occur
only because Medicaid denied coverage.
Given the nature and strength of the pain modalities prescribed by plaintiff’s
pain specialist over a period of years for her continued diagnosed condition of
causalgia and chronic pain, it cannot be said that plaintiff’s allegations of severe
pain are not credible. See O’Donnell v. Barnhart, 318 F.3d 811, 817-18 (8th Cir.
2003). A “‘consistent diagnosis of chronic . . . pain, coupled with a long history of
pain management and drug therapy,’ [is] an ‘objective medical fact’ supporting a
claimant’s allegations of disabling pain.” Id. at 817 (quoting Cox v. Apfel, 160
F.3d 1203, 1208 (8th Cir. 1998)).14
Given the ALJ’s failure to consider the Polaski factors in her analysis of
plaintiff’s subjective complaints, it cannot be said that her credibility determination
is supported by substantial evidence. See Cline, 939 F.2d at 569. Cf. Howe v.
Astrue, 499 F.3d 835, 841 (8th Cir. 2007) (credibility determination will be
affirmed if ALJ seriously considered, but for good reasons explicitly discredited, a
claimant’s testimony of disabling pain); Browning v. Sullivan, 958 F.2d 817, 821
(8th Cir. 1992). Because the ALJ failed to consider plaintiff's subjective
complaints of pain under the standards set out in Polaski, this matter will be
Notably missing from the ALJ’s summary of Dr. Ricci’s findings is Dr. Ricci’s May 2010
statement that plaintiff’s pain was likely “chronic and permanent.” (Tr. 566.)
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remanded to the Commissioner for an appropriate analysis of plaintiff's credibility
in the manner required by and for the reasons discussed in Polaski.
Upon concluding that plaintiff’s subjective complaints were not credible, the
ALJ turned to the April 2012 RFC Questionnaire completed by plaintiff’s
chiropractor, Dr. Boehmer, and found it not to be “persuasive” in determining
disability. (Tr. 19.)
The ALJ first discounted Dr. Boehmer’s opinion for the reason that, as a
chiropractor, Dr. Boehmer is not an acceptable medical source, thereby making
“his opinion . . . not a medical opinion.” (Tr. 19.) Although chiropractors are not
“acceptable medical sources” under the Regulations and thus cannot provide
evidence establishing a medically determinable impairment, see 20 C.F.R. §
404.1513(a), they nevertheless are considered to be “other medical sources” who
may provide evidence relevant in determining the severity of a claimant’s
impairment and how it affects the claimant’s ability to work. 20 C.F.R. §
404.1513(d). See also McDade v. Astrue, 720 F.3d 994, 999 (8th Cir. 2013). As
such, while the ALJ could not have relied on evidence from Dr. Boehmer to
establish a medically determinable impairment, she nevertheless could have
considered it in evaluating the severity of plaintiff’s impairments. To discount a
chiropractor’s opinion merely because of his status as a chiropractor would be
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In this case, however, the ALJ provided additional reasons to discount Dr.
Boehmer’s opinion, namely, because Dr. Boehmer 1) had treated plaintiff on only
one occasion prior to rendering his opinion, and 2) provided little explanation for
the severity of the opined limitations. (Tr. 19.) Because an ALJ is permitted to
discount medical opinion evidence for these reasons, the ALJ did not err in
discounting the opinion evidence from Dr. Boehmer, regardless of his status as a
chiropractor. See 20 C.F.R. § 404.1527(c)(2)(i) (“[T]he longer a treating source
has treated you and the more times you have been seen by a treating source, the
more weight we will give to the source’s medical opinion.”); 20 C.F.R. §
404.1527(c)(3) (“The better an explanation a source provides for an opinion, the
more weight we will give that opinion.”).
Plaintiff argues, however, that the ALJ failed to articulate the weight she
accorded the other medical evidence of record, and specifically, the treatment
records from Drs. Ricci, Dave, and Field. Plaintiff’s argument is misplaced. In
deciding whether a claimant is disabled, the ALJ considers medical opinions along
with the rest of the relevant evidence in the record. Wagner, 499 F.3d at 848. The
Regulations set forth how the ALJ is to weigh medical opinion evidence, 20 C.F.R.
§ 404.1527, and specifically require the ALJ to “explain in the decision” the
weight given to the opinions of State agency consultants, treating sources, non- 31 -
treating sources, and other non-examining sources. 20 C.F.R. § 404.1527(e)(2)(ii).
While an ALJ is required to consider and weigh all relevant evidence of record,
including non-opinion evidence such as treatment records, see 20 C.F.R. §§
404.1513(b), 404.1520b, the undersigned is aware of no authority, and plaintiff
cites to none, requiring an ALJ to explain in her written decision the weight
accorded to non-opinion evidence of record. As such, the undersigned cannot say
that the ALJ committed reversible error by failing to explain in her written decision
the weight she accorded the non-opinion evidence in this case.
Residual functional capacity is the most a claimant can do despite her
physical or mental limitations. Masterson v. Barnhart, 363 F.3d 731, 737 (8th Cir.
2004). The ALJ bears the primary responsibility for assessing a claimant’s RFC
based on all relevant, credible evidence in the record, including medical records,
the observations of treating physicians and others, and the claimant’s own
description of her symptoms and limitations. Goff v. Barnhart, 421 F.3d 785, 793
(8th Cir. 2005); Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20
C.F.R. § 404.1545(a). Where, as here, an ALJ errs in her determination to
discredit a claimant’s subjective complaints, the resulting RFC assessment is called
into question inasmuch as it does not include all of the claimant’s limitations and
restrictions. See Holmstrom v. Massanari, 270 F.3d 715, 722 (8th Cir. 2001).
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Further, because a claimant’s RFC is a medical question, some medical
evidence must support the ALJ’s RFC assessment. Vossen v. Astrue, 612 F.3d
1011, 1016 (8th Cir. 2010); Eichelberger, 390 F.3d at 591; Hutsell v. Massanari,
259 F.3d 707, 711-12 (8th Cir. 2001). As such, the ALJ must “consider at least
some supporting evidence from a [medical professional]” and should obtain
medical evidence that addresses the claimant’s ability to function in the workplace.
Hutsell, 259 F.3d at 712 (internal quotation marks and citation omitted). An ALJ’s
RFC assessment which is not properly informed and supported by some medical
evidence in the record cannot stand. Id.
Here, a review of the ALJ’s decision shows the RFC assessment to consist
of nothing more than the ALJ’s recitation of evidence that served to discredit
plaintiff’s subjective complaints and the opinion evidence from Dr. Boehmer. (See
Tr. 14-19.) The ALJ engaged in no discussion or analysis of the evidence – and,
indeed, cited no evidence – as it related to plaintiff’s RFC, that is, what she is able
to do despite her impairments. Drawing a conclusion regarding credibility is not
equivalent to demonstrating by medical evidence that a claimant has the RFC to
perform certain work-related activities. Estabrook v. Apfel, 14 F. Supp. 2d 1115,
1122 (S.D. Iowa 1998), cited approvingly in Graham v. Colvin, No. 4:12-cv00863-SPM, 2013 WL 3820613, at *7 (E.D. Mo. July 23, 2013) (memorandum
opinion). Instead, the ALJ’s RFC assessment must discuss and describe how the
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evidence supports each conclusion and must cite specific medical facts and nonmedical evidence in doing so, as well as resolve any material inconsistencies or
ambiguities in the evidence of record. Soc. Sec. Ruling (SSR) 96-8p, 1996 WL
374184, at *7 (Soc. Sec. Admin. July 2, 1996). The ALJ failed to engage in this
process here. In the absence of any thoughtful discussion or analysis by the ALJ,
this Court would be required to weigh the evidence in the first instance or review
the factual record de novo in order to find the ALJ’s RFC assessment to be
supported by substantial evidence on the record as a whole. This the Court cannot
do. See Naber v. Shalala, 22 F.3d 186, 188 (8th Cir. 1994).
The ALJ determined plaintiff to have the RFC to lift and carry up to twenty
pounds occasionally and ten pounds frequently, stand or walk six hours out of an
eight-hour workday, sit six hours out of an eight-hour workday, and be limited to
unskilled work. However, the ALJ provided no explanation nor referred to any
evidence of record to support this assessment, rendering the decision unclear as to
the medical basis, if any, for the ALJ’s assessment of the degree to which
plaintiff’s impairments affect her RFC. Lauer v. Apfel, 245 F.3d 700, 705 (8th Cir.
2001); SSR 96-8p, 1996 WL 374184, at *7. Because the ALJ must articulate the
medical and other evidence upon which she bases her RFC findings, and she failed
to do so here, it cannot be said that the RFC assessment is supported by substantial
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evidence on the record as a whole.15
Inasmuch as an ALJ’s RFC assessment must be based on some medical
evidence of the claimant’s ability to function in the workplace and must discuss
and describe how such evidence supports each RFC conclusion, the ALJ is
encouraged upon remand to contact plaintiff’s treating physician(s) for a functional
assessment as to how plaintiff’s impairments affect her ability to engage in specific
work-related activities. See Bowman v. Barnhart, 310 F.3d 1080, 1085 (8th Cir.
2002); see also Hacker v. Barnhart, 459 F.3d 934, 938 (8th Cir. 2006) (ALJ should
recontact treating physician when information provided by physician is inadequate
for the ALJ to determine whether the claimant is disabled). The ALJ is also
permitted to order medical examinations and tests in order for her to make an
informed decision as to disability. Dozier v. Heckler, 754 F.2d 274, 276 (8th Cir.
1985); 20 C.F.R. § 404.1517.
Accordingly, the ALJ upon remand shall obtain additional medical evidence
that addresses the extent to which plaintiff’s impairments, both severe and nonsevere, affect her ability to function in the workplace. Upon receipt of such
evidence, the ALJ shall reconsider the record as a whole, including the medical and
non-medical evidence of record as well as the credibility of plaintiff’s own
Given this faulty RFC determination, the hypothetical question posed to the vocational expert
based upon this RFC was likewise flawed. Lauer, 245 F.3d at 706.
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description of her symptoms and limitations, and reassess plaintiff’s RFC. Such
reassessed RFC shall be based on some medical evidence in the record and shall be
accompanied by a discussion and description of how the evidence supports each
RFC conclusion. Cox v. Astrue, 495 F.3d 614, 619 (8th Cir. 2007); SSR 96-8p,
1996 WL 374184, at *7.
Therefore, for the reasons stated above on the claims raised by plaintiff on
IT IS HEREBY ORDERED that the decision of the Commissioner is
REVERSED, and this cause is REMANDED for further proceedings.
A separate Judgment in accordance with this Memorandum and Order is
entered this same date.
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 13th day of March, 2015.
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