Rhone v. Colvin
MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and the case is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 406(g) for further consideration based upon the complete record. Signed by District Judge Catherine D. Perry on 07/09/2015. (CBL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
) Case No. 4:14CV655 CDP
Acting Commissioner of Social Security, )
MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) for judicial review of the
Commissioner’s final decision denying Kevin Rhone’s application for
Supplemental Security Income under Title XVI of the Social Security Act, 42
U.S.C. §§ 1381, et seq. Claimant Rhone brings this action asserting disability
because of arthritis, intellectual disability,1 and history of substance abuse. The
Administrative Law Judge concluded that Rhone was not disabled. Because I find
that the decision denying benefits was not based upon the entire record, I will
remand for further consideration.
Rhone refers to this specific impairment as “mental retardation”; however, that term has fallen
into disuse in favor of “intellectual disability.” Compare Cheatum v. Astrue, 388 Fed. Appx.
574, 576 (8th Cir. 2010) (citing 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05) with 20 C.F.R. Pt.
404, Subpt. P, App. 1, § 12.05 (2015).
On August 25, 2011, Kevin Rhone filed for Supplemental Security Income
under Title XVI, and initially alleged an onset date of September 1, 1991. The
Social Security Administration denied the claim, and Rhone sought a hearing
before the Administrative Law Judge (“ALJ”), which was held on March 5, 2013.
At the hearing, Rhone orally requested through his attorney that the onset date be
amended to August 25, 2011. The ALJ issued an unfavorable decision on March
15, and Rhone appealed to the Appeals Council. That request was denied on
February 5, 2014, and so the ALJ’s decision now stands as the final decision of the
Evidence Before the ALJ
Rhone submitted two function reports, both of which were completed by his
cousin. The reports state that Rhone lives with his girlfriend and has no problems
with his personal care. Rhone drives a car and can perform household chores,
including laundry, ironing and cooking without help or encouragement. Rhone
repeated that he cannot read, but he is able to pay bills and count change. He
spends time with others, including attending church twice per week. Rhone can
follow spoken instructions and gets along well with authority figures. Rhone’s
conditions affect his ability to lift, squat, bend, stand, reach, kneel, understand,
follow instructions, complete tasks, concentrate, and remember. In the space left
to explain how his conditions affect each ability, Rhone referred to his illiteracy.
Tr. 150–57, 170–176.
On March 5, 2013, Rhone testified before the ALJ that he dropped out of
school in ninth grade because he could not keep up his G.P.A. He always had a
tutor while in school and received help with most subjects. Rhone testified that
although he can read and write, he cannot understand newspaper articles and
needed help submitting his SSI benefits application. Rhone cannot multiply or
divide, but he can add and subtract. Tr. 34, 36–38.
Rhone has a driver’s license, but he required the questions to be read to him.
At past jobs, he has been able to follow instructions after being shown how to do
the work. Tr. 38–40
Rhone has been working part-time as a gas station janitor since May 2012,
and his duties involve cleaning, dusting, and mopping. Rhone also stocks shelves,
which requires lifting canned goods and sugar; however, cases of soda are too
heavy. Rhone started full-time, but had to switch to part-time, because the arthritis
in his hands and feet prevent him from lifting, grabbing, and standing on his feet
for too long. He works five days a week for approximately four hours per day,
although his supervisor lets Rhone take extended breaks when his hands hurt, so
long as the work is completed. When Rhone leaves work, he feels “sluggish and
tired” and needs to “lay down due to hepatitis.” Tr. 34–36, 46, 53.
Sometimes at work, Rhone’s hands swell; this prevents him from gripping
boxes and pens. The swelling occurs daily, although it improved for a month after
receiving some shots in his hands. Sometimes Rhone’s feet stiffen up and he needs
to sit until they feel better. Rhone also gets very tired and breathless “really soon”;
his doctor thinks this is caused by his hepatitis, which began acting up after Rhone
was released from prison. Although this makes Rhone want to sit down, he pushes
through it in order to work. Tr. 40–43.
Rhone lives with his girlfriend and helps with the chores, which include
sweeping and cleaning. These tasks cause him trouble and Rhone often needs to
lie down. When shopping, Rhone pushes the buggy. Rhone does not leave the
house much, because he is too tired and wants to rest before his next week begins.
He used to enjoy walking and exercising, but he has been unable to do those
activities since his hepatitis started acting up. Tr. 44–45.
Rhone testified that he saw a “Dr. Sam” for the pain in his hands. Rhone
received the shots in his hands and some medicine that caused him to see double.
The ALJ requested copies of that medical evidence from Rhone’s attorney. Tr.
The ALJ also received testimony from a vocational expert (“VE”), who
based her testimony upon Rhone’s medical records, testimony, and recent work
history as a janitor. The VE testified that Rhone’s current job would be classified
as light unskilled. The ALJ presented the VE with a hypothetical person of
Rhone’s age, with limited education, capable of doing only medium work activity,
and who was limited to simple, routine, and repetitive tasks. The VE testified that
the hypothetical individual would be capable of performing Rhone’s past work.
The VE described the jobs available in Missouri and nationally: cleaner two
(medium, unskilled) and dining room attendant (medium, unskilled).
The ALJ posed a second hypothetical person to the VE, reducing the
individual to only light work and keeping all other traits constant. The VE testified
that this second individual could work three different light, unskilled jobs: hand
presser, small product assembler, and housekeeping cleaner. Each of these jobs
was available in the national and Missouri economies.
Rhone’s counsel asked the VE whether the second individual could perform
the jobs if he were limited to standing at thirty minutes at a time with the option to
sit for up to thirty minutes throughout the workday. The VE testified that such an
individual could not work as a housekeeping cleaner but could perform the other
two jobs. If further limited to frequent handling, fingering, and manipulating
objects with the upper bilateral extremities, the individual would still be able to
work as both a hand presser and small products assembler. However, if handling
and fingering were reduced to occasional, both hand presser and small products
assembler would be precluded.
Rhone’s counsel then changed the first hypothetical by imposing a limitation
that the worker would need a supervisor routinely to demonstrate the job duties as
needed. The VE testified that although the job would remain at a medium work
activity level, the person would likely need to work at a sheltered workshop
environment. Tr. 54–58.
On April 8, 2009, Rhone complained to the Bureau of Prisons Health
Services that he was having difficulty in reading books and newspapers. He
requested a pair of reading glasses. Tr. 325.
Rhone underwent a psychological evaluation by Dr. Paul Rexroat, Ph.D., on
November 25, 2011. Rhone reported that he dropped out of school in the ninth
grade because he lost interest and had difficulty learning. He began using
marijuana and heroin at age 13 and last used them in 2001. Dr. Rexroat noted that
Rhone appeared well groomed and nicely dressed; he had a normal energy level
and was alert. Rhone was unable to perform basic multiplication or division, and
he used his fingers to solve simple addition and subtraction problems. Rhone
appeared to be functioning “below the average range of intelligence.” He could
understand and remember simple instructions and can sustain concentration and
persistence with simple tasks. Dr. Rexroat reported no Axis I or II diagnoses; he
noted occupational, educational, and housing stressors on Axis IV, and reported a
Global Assessment of Functioning (GAF) score of 55. Tr. 217–219.
In May 2011, Rhone sought treatment from Dr. Laila Hanna and received a
new patient physical. He reported no problems with fatigue and there are no notes
related to arthritis. At his July 7 follow-up, Dr. Hanna assessed Rhone as having
chronic hepatitis type B. Tr. 267–271. On July 29, 2011, Rhone returned to Dr.
Hanna; the records show no complaints of arthritis or fatigue. Tr. 263–64.
On April 11, 2012, Dr. Michael Gilmore, M.D., administered a hepatitis type
A vaccination to Rhone. Rhone complained of pain in his left shoulder. Tr. 257.
On June 20, 2012, Rhone sought treatment from Dr. Hanna, who noted that
his active problems included lumbago and tenosynovitis of the hand and wrist.
Rhone reported feeling fatigued, hand pain, and problems with his hands swelling.
His lower back was tender to palpation and he exhibited pain when bending his
back. Dr. Hanna prescribed Flexeril2 and Tylenol Arthritis Pain. Dr. Hanna
examined Rhone’s hands and his lumbar spine. She noted minimal degenerative
Flexeril is a muscle relaxant. Medline Plus (last revised Oct. 1, 2010),
disk spurs at L1-L2, L3-L4 and L4-L5, but found both the spine and hands
otherwise unremarkable. Tr. 252 –256.
On July 9, 2012, Dr. Hanna noted that Rhone had tested positive for
rheumatoid factor and that he complained of pain in his hands. Her assessment
shows that Dr. Hanna doubted it was rheumatoid arthritis and posited that it could
be secondary to hepatitis B. Dr. Hanna advised that Rhone consult a
rheumatologist and that he wear a wrist support at night. Tr. 249–50.
On August 27, 2012, Rhone presented to Dr. Hanna complaining of stiffness
and pain in his lower back. Rhone reported fatigue and back pain that worsened
when lying down. Rhone denied numbness and tingling of the limbs. Dr. Hanna
assessed Rhone as having a back sprain and prescribed Flexeril and Ibuprofen.
In September, Rhone sought treatment from Drs. Sams and Hsieh at Barnes
Jewish Hospital Department of Rheumatology. Rhone reported fatigue pain in his
fingers and toes, which he had experienced for three to four months. His hands
throb and he often experiences numbness and trouble gripping. Dr. Sams assessed
Rhone as having hand pain with “some concern for inflammatory arthritis vs.
tenosynovitis;” “[o]ther possible diagnosis include Hep C arthralgias and
neuropathy.” There was “no frank Synovitis” and “[n]o obvious triggering today.”
Tr. 383–84. Rhone was instructed to return in December.
On October 25, 2012, Dr. Hanna reported prescribing hydroxychloroquine
sulfate3 per instructions by Dr. Sams, who had ordered the medication for
synovitis. Tr. 245.
Rhone reported to Dr. Laila Gabrawy on December 3, 2012, complaining of
eye pain. His diagnoses included arthritis, osteoarthritis, and “no hepatitis.”
Rhone presented to Dr. Hanna on December 17, 2012, complaining of
fatigue and hand pain. He stated that he discontinued the hydroxychloroquine
because the medication was not helping. Dr. Hanna recommended that Rhone
restart the medication and to keep his rheumatology appointment as scheduled.
She assessed Rhone as having chronic hepatitis type B, arthropathy, rheumatoid
arthritis, and fatigue. Tr. 238–39.
Rhone returned to Dr. Sams on December 31, 2012. Imaging of his hands
showed mild synovitis, tenosynovitis, and some bone marrow edema. Dr. Sams
administered injections into Rhone’s hands, which resolved the pain. Tr. 381–82.
Rhone saw Dr. Akwi Asombang, M.D., on February 11, 2013, for lab work
related to his hepatitis. Dr. Asombang listed the disease as “chronic Hepatitis C.”
Hydroxychloroquine sulfate is an antimalarial drug that is used to treat rheumatoid arthritis in
patients whose symptoms have not improved with other treatments. Medline Plus (last revised
September 1, 2010), http://www.nlm.nih.gov/medlineplus/druginfo/meds/a601240.html.
Dr. Hanna completed a medical statement regarding arthritis on February 25,
2013. The statement noted a history of joint pain, swelling, and tenderness. Dr.
Hanna also noted that Rhone had synovial inflammation, morning stiffness,
positive serum rheumatoid factor, and the inability to perform fine and gross
movements effectively. Both hands had evidenced inflammation, as had Rhone’s
eyes. Dr. Hanna noted significant fatigue. She estimated that Rhone experienced
mild limitations of daily living activities and in completing tasks in a timely
manner due to deficiencies in concentration, persistence, and pace. Rhone was
estimated to be limited to standing for 30 minutes at one time with no sitting limits.
He could lift five pounds both frequently and occasionally, could perform fine
manipulation constantly, gross manipulation frequently, and raise his arms over
shoulder level occasionally. However, Rhone could never bend or stoop and was
limited to working four hours per day. Tr. 377–78.
To be eligible for Supplemental Security Income under the Social Security
Act, the claimant must prove that he is disabled. Pearsall v. Massanari, 274 F.3d
1211, 1217 (8th Cir. 2001); Baker v. Sec’y 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
- 10 -
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. § 1382c(a)(3)(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.
To determine whether a claimant is disabled, the Commissioner engages in a
five-step evaluation process. See 20 C.F.R. § 416.920; Bowen v. Yuckert, 482 U.S.
137, 140–42 (1987). The Commissioner begins by deciding whether the 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 his ability to do basic work activities. If the claimant’s
impairment(s) is not severe, then he is not disabled. The Commissioner then
determines whether claimant’s impairment(s) meets or is equal to one of the
impairments listed in 20 C.F.R., Subpart P, Appendix 1. If the claimant’s
impairment(s) is equivalent to one of the listed impairments, he is conclusively
disabled. At the fourth step, the Commissioner reviews whether the claimant has
the Residual Functional Capacity (RFC) to perform his past relevant work. If the
- 11 -
claimant can perform his past relevant work, he is not disabled. If the claimant
cannot perform his past relevant work, the burden of proof shifts and the
Commissioner must evaluate whether the claimant can perform other work in the
national economy. If not, the Commissioner declares the claimant disabled. See
Cox v. Apfel, 160 F.3d 1203, 1206 (8th Cir. 1998); 20 C.F.R. § 416.920.
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
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:
1. The credibility findings made by the ALJ.
2. The plaintiff’s vocational factors.
- 12 -
3. The medical evidence from treating and consulting physicians.
4. The plaintiff’s subjective complaints relating to exertional and nonexertional activities and impairments.
5. Any corroboration by third parties of the plaintiff’s impairments.
6. The testimony of vocational experts when required, which is based
upon a proper hypothetical question that sets forth the claimant’s
Stewart v. Sec’y of Health & Human Servs., 957 F.2d 581, 585–86 (8th Cir. 1992)
(citing Cruse v. Bowen, 867 F.2d 1183, 1184–85 (8th Cir. 1989)).
The court must also consider any evidence that fairly detracts from the
Commissioner’s decision. Coleman, 498 F.3d at 770; Warburton v. Apfel, 188 F.3d
1047, 1050 (8th Cir. 1999). However, even though two inconsistent conclusions
may be drawn from the evidence, the Commissioner’s findings may still be
supported by substantial evidence on the record as a whole. Pearsall, 274 F.3d at
1217 (citing Young v. Apfel, 221 F.3d 1065, 1068 (8th Cir. 2000)). “[I]f there is
substantial evidence on the record as a whole, we must affirm the administrative
decision, even if the record could also have supported an opposite decision.”
Weikert v. Sullivan, 977 F.2d 1249, 1252 (8th Cir. 1992) (internal quotation marks
and citation omitted); see also Jones ex rel. Morris v. Barnhart, 315 F.3d 974, 977
(8th Cir. 2003).
- 13 -
The ALJ’s Findings
The ALJ found that Rhone was not disabled within the meaning of the
Social Security Act from the amended onset date of August 25, 2011 through the
date of the decision. He issued the following specific findings:
The claimant has not engaged in substantial gainful activity
since August 25, 2011, the application date (20 C.F.R. § 416.971
The claimant has the following severe impairments: arthritis
and a history of substance abuse (20 C.F.R. § 416.920(c)).
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1
(20 C.F.R. §§ 416.920(d), 416.925, and 416.926).
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual functional
capacity to perform light work as defined in 20 C.F.R. § 416.967(b),
except the claimant is limited to light unskilled work activity with
only simple routine and repetitive tasks.
The claimant has no past relevant work (20 C.F.R. § 416.965).
The claimant was born [in] 1958 and was 52 years old, which is
defined as an individual closely approaching advanced age, on the
date the application was filed (20 C.F.R. § 416.968).
The claimant has a limited education and is able to
communicate in English (20 C.F.R. § 416.964).
Transferability of job skills is not an issue because the claimant
does not have past relevant work (20 C.F.R. § 416.968).
Considering the claimant’s age, education, work experience,
and residual functional capacity, there are jobs that exist in significant
- 14 -
numbers in the national economy that the claimant can perform
(20 C.F.R. §§ 416.969 and 416.969(a)).
The ALJ determined that Rhone’s mental impairment did not meet the
requirements of listing 12.05 under 20 C.F.R. Part 404, Subpart P, Appendix 1,
because Rhone did not meet the have deficits in adaptive functioning that initially
manifested during the developmental period.
Rhone alleges three points of error. First, he contends that the ALJ failed at
Step Two by omitting any discussion of intellectual disability. Second, Rhone
alleges that the ALJ failed to evaluate fully the evidence as to whether Rhone’s
intellectual disability meets listing 12.05 under 20 C.F.R. Part 404, Subpart P,
Appendix 1. Third, Rhone attributes error to the ALJ’s RFC determination.
At Step Two, the ALJ determined that Rhone had two severe impairments:
arthritis and a history of substance abuse. Thus, Rhone is correct that the ALJ
erred in omitting intellectual disability from his severe impairments. However, the
ALJ then proceeded to Step Three, whereupon he evaluated whether Rhone’s
intellectual disability is equivalent to one of the listed impairments.
The Eighth Circuit has “consistently held that a deficiency in opinionwriting is not a sufficient reason for setting aside an administrative finding where
- 15 -
the deficiency had no practical effect on the outcome of the case.” Senne v. Apfel,
198 F.3d 1065, 1067 (citing Benskin v. Bowen, 830 F.2d 878, 883 (8th Cir. 1987)).
Because the ALJ proceeded to evaluate Rhone’s intellectual disability at Step
Three, Rhone was not prejudiced by its omission from the list of severe
impairments at Step Two. Thus, this point of error does not merit reversal.
At Step Three, the claimant bears the burden to show that he meets each
criterion of the listed impairment. See Carlson v. Astrue, 604 F.3d 589, 593 (8th
Cir. 2010). The medical standards necessary to meet a listed impairment are
higher than the statutory standard, because the listings create a presumption of
disability. Sullivan v. Zebley, 493 U.S. 521, 532 (1990) (internal citations
Rhone claims the ALJ erred by finding his mental deficiencies did not meet
listing 12.05(C) for intellectual disability. The Commissioner admits that Rhone
meets the criteria set forth in 12.05(C), but the Commissioner argues that Rhone
failed to meet the requirements in the introductory paragraph of 12.05.
Listing 12.05’s introductory paragraph states that “Intellectual disability
refers to significantly subaverage general intellectual functioning with deficits in
adaptive functioning initially manifested during the developmental period; i.e., the
evidence demonstrates or supports onset of the impairment before age 22.”
- 16 -
20 C.F.R. Pt. 404, Subpt. P, App. 1 at ¶ 12.05. The requirements in the
introductory paragraph are mandatory, though they do not require a formal
diagnosis of mental disability (formerly known as “mental retardation”). See
Maresh v. Barnhart, 438 F.3d 897, 899 (8th Cir. 2006). “Deficits in adaptive
functioning” is independent from the other four criteria in 12.05 and must be
independently proven. Cheatum v. Astrue, 388 Fed. Appx. 574, 576 (8th Cir.
The ALJ determined that Rhone does not have deficits in adaptive
functioning. This determination is supported by substantial evidence. The ALJ
cited Rhone’s ability to do some calculations and work five days per week without
any reported difficulties in performing or understanding the assigned tasks. In
addition, the record indicates that Rhone can drive, groom himself, and participate
in household chores. Rhone also attends church twice per week and spends time
talking, laughing, and playing with others. These sorts of activities have been held
to support an ALJ’s determination that no deficits in adaptive functioning exist.
Cf. id. at 576–77. Rhone correctly notes other evidence, such as his unsteady work
history and truncated educational background, which support a finding of adaptive
functioning deficits. Cf. Christner v. Astrue, 498, F.3d 790, 794 (8th Cir. 2007).
However, because substantial evidence supports the ALJ’s decision – even if I may
- 17 -
have reached a different result – I must affirm. McNamara v. Astrue, 590 F.3d
607, 610 (8th Cir. 2010).
Rhone contends that the ALJ failed to include any limitations related to
Rhone’s hands in the RFC determination. Specifically, Rhone alleges that his
arthritis affects his ability to perform tasks involving fine manipulation. Rhone
also contends that the ALJ improperly disregarded the opinion of Dr. Hanna.
Finally, Rhone contends that the ALJ failed to cite to any medical evidence
supporting the ALJ’s RFC determination.
At Step Four of the sequential analysis, the ALJ is required to determine a
claimant’s RFC. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004).
RFC is what a claimant can do despite the limitations caused by her impairments.
McGeorge v. Barnhart, 321 F.3d 766, 768 (8th Cir. 2003); Dunahoo v. Apfel, 241
F.3d 1033, 1039 (8th Cir. 2001). Although the claimant has the burden to establish
her RFC, the ALJ bears the primary responsibility for assessing the 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. McGeorge, 321 F.3d at 768; see also Goff v.
Barnhart, 421 F.3d 785, 793 (8th Cir. 2005); Eichelberger, 390 F.3d at 591.
- 18 -
“While the claimant has the burden of proving that the disability results from
a medically determinable physical or mental impairment, direct medical evidence
of the cause and effect relationship between the impairment and the degree of
claimant’s subjective complaints need not be produced.” Polaski v. Heckler, 739
F.2d 1320, 1322 (8th Cir. 1984). A claimant’s subjective complaints may not be
disregarded solely because the objective medical evidence does not fully support
them. Id. The absence of objective medical evidence is just one factor to be
considered in evaluating the claimant’s credibility and complaints. Id. The ALJ
must fully consider all of the evidence presented relating to subjective complaints,
including the claimant’s prior work record and observations by third parties and
treating and examining physicians relating to such matters as: (1) the claimant’s
daily activities; (2) the subjective evidence of the duration, frequency, and intensity
of the claimant’s pain; (3) any precipitating or aggravating factors; (4) the dosage,
effectiveness, and side effects of any medication; and (5) the claimant’s functional
restrictions. Id. “Whether or not a[n] explanation for the pain can be given, it is
nevertheless possible that the claimant is suffering from disabling pain.” Layton v.
Heckler, 726 F.2d 440, 442 (8th Cir. 1984).
The ALJ must make express credibility determinations and set forth the
inconsistencies in the record that cause him to reject the claimant’s complaints.
Guilliams v. Barnhart, 393 F.3d 798, 802 (8th Cir. 2005); Masterson v. Barnhart,
- 19 -
363 F.3d 731, 738 (8th Cir. 2004). “It is not enough that the record contains
inconsistencies; the ALJ must specifically demonstrate that he considered all of the
evidence.” Masterson, 363 F.3d at 738. The ALJ, however, “need not explicitly
discuss each Polaski factor.” Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir.
2004). The ALJ need only acknowledge and consider those factors. Id. Although
credibility determinations are primarily for the ALJ rather than the Court, the
ALJ’s credibility assessment must be based on substantial evidence. Rautio v.
Bowen, 862 F.2d 176, 179 (8th Cir. 1988).
The ALJ acknowledged that Rhone complained of difficulties with his hands
but found that Rhone was not credible as to the alleged intensity, persistence,
duration, and impact on functioning. The ALJ discredited Rhone in part because
MRIs of Rhone’s hands that were taken in June 2010 were negative and because
Rhone failed to keep his September 2012 rheumatologist appointment. The ALJ
also found that “the lack of strong prescription pain medication is inconsistent with
the complaints of disabling pain.” Tr. 256.
The ALJ’s determinations as to Rhone’s credibility are not supported by
substantial evidence in the record. The ALJ incorrectly noted that Rhone did not
follow through with his September 12, 2012, rheumatologist appointment.
However, the transcript shows that on March 14, 2013 – the day before the ALJ’s
decision was issued – Rhone’s attorneys faxed to the Office of Disability
- 20 -
Adjudication and Review additional medical records.4 These documents show that
Rhone did receive treatment from the Barnes Jewish Hospital Department of
Rheumatology on September 12, 2012 and again in December of that year.
Other evidence in the record contradicts the ALJ’s cited reasons for
discounting Rhone’s subjective statements regarding his hands. MRIs and other
imaging received at the rheumatology appointments revealed synovitis,
tenosynovitis, and bone marrow edema in Rhone’s hands. Additionally, the ALJ’s
citation to the absence of “strong prescription pain medication” ignores the
evidence as a whole. Rhone is a recovering heroin addict, and so the absence of
narcotic pain medication does not correlate with an absence of pain. The ALJ also
failed to note that Rhone was prescribed hydroxychloroquine sulfate, which is an
antimalarial drug that is used to treat rheumatoid arthritis in patients whose
symptoms have not improved with other treatments. See Medline Plus (last revised
September 1, 2010), http://www.nlm.nih.gov/medlineplus/druginfo/
meds/a601240.html. It is plain from the record that the ALJ failed in his duty to
“specifically demonstrate that he considered all of the evidence.” Masterson, 363
F.3d at 738
These records were referenced in the hearing on March 5, at which time the ALJ expressed an
interest in receiving them. Tr. 60.
- 21 -
The ALJ also cited to some of the same evidence as reasons for discounting
the opinion of Dr. Hanna. For the reasons discussed above, the ALJ’s decision to
discount that opinion does not appear to be based upon consideration of all the
evidence in the record. Because I find that the first two arguments as to RFC
require remand, I do not reach Rhone’s third argument.
IT IS HEREBY ORDERED that the decision of the Commissioner is
reversed and the case is remanded to the Commissioner pursuant to sentence four
of 42 U.S.C. § 406(g) for further consideration based upon the complete record.
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 9th day of July, 2015.
- 22 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?