Cain v. Colvin

Filing 20

MEMORANDUM: For the reasons set forth above, the decision of the Commissioner of Social Security is reversed and this case is remanded to the Commissioner for further proceedings consistent with this opinion. An appropriate Judgment Order is issued herewith. Signed by Magistrate Judge David D. Noce on 5/5/2015. (KMS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

ANITA K. CAIN,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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No. 4:14 CV 772-DDN

MEMORANDUM
This action is before the court for judicial review of the final decision of the defendant
Commissioner of Social Security, denying the application of plaintiff Anita K. Cain for disability
insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et seq. and
supplemental security income under Title XVI of the Act, 42 U.S.C. § 1381, et seq. The parties
have consented to the exercise of plenary authority by the undersigned United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the decision of the
Commissioner is reversed and remanded for further proceedings consistent with this opinion.

I. BACKGROUND
Plaintiff Anita Cain was born on July 27, 1967. (Tr. 7.) On October 26, 2011, plaintiff
filed applications for Disability Insurance Benefits and Supplemental Security Income under
Title II and XVI of the Social Security Act. (Tr. 168-80.) Plaintiff alleged disability due to high
blood pressure, kidney disease and depression, indicating an onset date of October 1, 2010. (Tr.
168, 175.) On March 2, 2012, plaintiff’s claims for benefits were denied at the initial level. (Tr.
106.) On March 22, 2012, plaintiff filed a Request for Hearing by an ALJ, which was granted.
(Tr. 113-17.) On June 14, 2013, the ALJ held the hearing, after which the ALJ determined that
plaintiff was not disabled (Tr. 21-35.) Plaintiff requested review of the decision by the Appeals
Council, which was denied. (Tr. 1, 20.) Plaintiff exhausted all of her administrative remedies;
thus, the decision of the ALJ stands as the final decision of the Commissioner.

II. MEDICAL AND OTHER HISTORY
A. Medical Records
On October 17, 2010, plaintiff was transferred to Barnes Jewish Hospital from an outside
hospital for treatment of a urinary tract infection (UTI).

Plaintiff initially presented with

abdominal pain, nausea, vomiting, painful urination and fever. A urinalysis confirmed UTI and a
CT scan revealed that plaintiff had polycystic kidney disease, an inherited disorder in which
cysts develop within the kidneys, and hepatic cysts, which are cysts of the liver. Plaintiff was
treated with Dilaudid, a pain reliever, Zofran, which is used to prevent nausea and vomiting, and
Unasyn, an antibiotic. (Tr. 446.)
At Barnes Jewish Hospital, plaintiff reported a medical history of hypertension and
indicated that she was treating it with Norvasc 10. Plaintiff reported that she had been using
alcohol heavily due to social stressors. She also indicated a history of UTI. Robert J. Mahoney,
M.D., conducted an examination, which revealed that plaintiff had tenderness and pain in the
area of the back overlying the kidney, and tenderness on the right and lower quadrants. (Tr. 44647.) Plaintiff was diagnosed with UTI and was treated with ciprofloxacin, an antibiotic. She
was also given intravenous fluids, acetaminophen, morphine and Zofran. Plaintiff was also
treated with Lorazepam, which is used to treat anxiety, and given thiamine and folate multivitamins for her alcohol use. (Tr. 447.) She was also ordered to have a chemical dependency
consultation and was given a nicotine patch. (Tr. 448.) On October 19, 2010, Plaintiff was
discharged in good condition and was advised to schedule a follow-up visit with a Dr. Goldberg
at the Wohl clinic. (Tr. 445.)
On October 5, 2011, plaintiff was admitted to Washington County Memorial Hospital
because of lower abdomen and back pain and nausea. (Tr. 321.) Plaintiff indicated that she had
increasing pain for approximately three to four weeks prior to the hospital visit. Plaintiff
reported a medical and family history for polycystic kidneys and hypertension. (Tr. 328.) A CT
scan revealed that plaintiff had cysts throughout her liver and both of her kidneys and a solid
mass in the inferior pole of her right kidney. Plaintiff also had diverticulosis, which is a
condition that develops when pouches form in the wall of the colon. (Tr. 336.) Richard Secor,
D.O., diagnosed plaintiff with kidney infection, polycystic kidney disease and hypertension. Dr.
Secor treated plaintiff with Levaquin, an antibiotic, Clonidine, for high blood pressure and
Vicodin. (Tr. 329.) On October 7, 2011, Dr. Secor discharged plaintiff, with a diagnosis of UTI
2

and polycystic kidney disease. Dr. Secor noted that plaintiff was sitting up and eating, denied
any nausea or pain and stated that she felt much better. Dr. Secor advised plaintiff to take
Bactrim DS, an antibiotic, and Ultram, a pain reliever, for pain management. She was also
encouraged to follow-up with a nephrologist for her kidneys. (Tr. 320.)
On November 21, 2011, plaintiff was admitted to Washington County Memorial Hospital
with abdominal pain. Plaintiff was diagnosed with diverticulitis and polycystic kidney disease
and was treated with Unasyn and Levaquin along with Percocet. Plaintiff responded to the
treatment, and her diet and lab results returned to normal. On November 27, 2011, plaintiff was
discharged with a diagnosis of diverticulitis, abdominal pain, anorexia and dehydration. (Tr.
292). At discharge, plaintiff’s pain was manageable and signs of infection were lessened. (Tr.
293.) Additionally, plaintiff’s dehydration was resolved with medical therapy. Plaintiff was
advised to continue a bland diet and was prescribed Ambien, Percocet, Levaquin and Augmentin.
(Tr. 292.)
On December 12, 2011, plaintiff presented at Resolutions Behavioral Health for a
disability evaluation for the Missouri Department of Social Services with Patrick Oruwari, M.D.
(Tr. 344-45.) Plaintiff indicated that she cries a lot and does not leave the house due to social
anxiety. She denied any suicidal thoughts. She also reported nightmares, panic attacks, avoidant
behavior and flashbacks to traumatic events. (Tr. 346.) Dr. Oruwari diagnosed plaintiff with
post-traumatic stress disorder (PTSD) and social anxiety. He indicated by checking a box on the
bottom of a form that the expected duration of plaintiff’s disability would be 3 to 5 months. He
also noted that plaintiff should get a further nephrology examination. (Tr. 345.)
On January 25, 2012, plaintiff consulted with Brian Gallagher, D.O., about a painful,
enlarging lipoma, which is a slow-growing, fatty lump, on her back. Dr. Gallagher decided to
excise the lipoma and prescribed Meloxicam, which is used to treat pain or inflammation caused
by osteoarthritis or rheumatoid arthritis, Ambien, Ativan and Percocet, in preparation for the
procedure.

On February 16, 2012, Dr. Gallagher performed the excision without any

complications. (Tr. 423-24, 454.)
On August 2, 2012, plaintiff consulted with Geetha Balasubramanian, M.D., a
nephrologist, at Amin Nephrology & HTN Specialist for her polycystic kidney disease. (Tr. 48385.) Dr. Balasubramanian assessed plaintiff for renal osteodystrophy, anemia, hypertension and
vitamin D deficiency and ordered a full lab workup. He also ordered a full medical workup,
3

including a renal ultrasonogram, a magnetic resonance angiogram (MRA) of plaintiff’s brain for
her history of frequent headaches and family history of brain aneurysms, a renal panel, a urine
analysis, a urine spot creatinine, a urine spot protein test, a Hepatitis B test, a Hepatitis C test and
a protein electrophoresis. (Tr. 485.)

Dr. Balasubramanian advised plaintiff to avoid all

nonsteroidal anti-inflammatory drugs (NSAIDs) and other nephrotoxins. He also recommended
plaintiff undergo a cardiology evaluation for her shortness of breath and a gastrointestinal (GI)
evaluation for her recent history of vomiting blood. (Tr. 484.)
On August 29, 2012, plaintiff attended a follow up visit at Amin Nephrology & HTN
Specialist with Mohammad Amin, M.D. (Tr. 486-88.) Plaintiff was diagnosed with stage II, or
mild kidney disease. (Tr. 486.)

Plaintiff’s workup for renal insufficiency was negative.

Plaintiff’s other lab work was also unremarkable. Plaintiff’s blood pressure was acceptable
based on her current regimen. Lastly, Dr. Amin treated plaintiff for a UTI by prescribing her
with Cipro, an antibiotic. Dr. Amin recommended further cardiology and GI examinations and
ordered plaintiff to follow up at the clinic in one year. (Tr. 486-87.)
From January 10, 2012 to October 8, 2012, plaintiff visited primary healthcare physician,
James Hawk, M.D., for various ailments, including lower back pain, anxiety, flu, UTIs and
hypertension. Dr. Hawk treated her with various prescriptions and referred her to specialists.
(Tr. 489-98.)
On October 4, 2012, plaintiff was seen at Washington University School of Medicine,
Department of Internal Medicine by Seth Goldberg, M.D., for an evaluation of her polycystic
kidney disease. (Tr. 599-601.) Dr. Goldberg determined that plaintiff had stage I chronic kidney
disease secondary to autosomal dominant polycystic kidney disease. He advised plaintiff to
reduce caffeine intake. He also determined that plaintiff had an UTI which caused dysuria and
flank pain. He prescribed her antibiotics. Dr. Goldberg also determined that plaintiff’s blood
pressure was near target range and advised her to follow-up in six months. (Tr. 600-01.)
From June 7, 2012 to January 31, 2013, plaintiff consulted with George M. Gasser, D.O.,
at Washington County Memorial Hospital for pelvic pain, uterine fibroids and polycystic kidney
disease. (Tr. 604-12, 640-52.) Dr. Gasser noted plaintiff had a soft abdomen with tenderness.
(Tr. 612.) Dr. Gasser determined that plaintiff would need a hysterectomy and referred her to
Dr. Amin for pre-operative clearance. (Tr. 504-07, 537-39, 611-12.)

After receiving pre-

operation clearance, on December 15, 2012, plaintiff was admitted to Parkland Health Center for
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her surgery. (Tr. 510-12.) On December 19, 2012, plaintiff’s surgery was cancelled due to
plaintiff’s poor pulmonary status and low potassium levels. (Tr. 516.) Dr. Gasser suggested
plaintiff see a pulmonologist for her pulmonary status. (Tr. 516-17.)
On August 20, 2012, September 18, 2012, October 22, 2012 and April 2, 2013, plaintiff
visited Resolutions Behavioral Health for follow-up visits with Dr. Oruwari for depression and
anxiety, which he treated with prescriptions. (Tr. 581-91.) Plaintiff presented with anxiety and
depressed mood. (Tr. 581.) On April 2, 2013, plaintiff did not present with any signs of
psychosis and mania. She was assessed with major depressive affective disorder, improved
obsessive-compulsive disorder and chronic post-traumatic stress disorder. She was assigned a
GAF1 score of 55.2 Dr. Oruwari believed that plaintiff’s symptoms were a result of her access to
health care and social environment. (Tr. 584.)

Dr. Oruwari continued plaintiff on her

prescriptions and added Mirtazapine to help with her mood, improve appetite and help with her
sleep. (Tr. 585.) He ordered plaintiff to start on her new medication, return to the office if
symptoms persisted, continue with pain management and increase her social interaction.
Plaintiff was scheduled for a follow-up visit in 3 months. (Tr. 585-86.)
B. ALJ Hearing
On June 3, 2013, plaintiff appeared with her counsel and testified to the following at a
hearing before an ALJ. Plaintiff is unemployed and lives with her daughter, Mindy Cain and her
two grandchildren, then ages four and one.

Plaintiff does not provide childcare for her

grandchildren. Plaintiff has an eleventh grade education, and does not have a GED. Plaintiff
receives Medicaid, $163 in food stamps and $271 in pension funds from a fiancé who passed
away from cancer. Plaintiff does not drive because she does not have a current driver’s license
and did not renew it after receiving a DWI. Plaintiff also does not drive because she suffers from
panic attacks and feels uncomfortable when driving. (Tr. 46-48.)

1

A GAF score helps summarize a patient's overall ability to function. A GAF score has two
components. The first component covers symptom severity and the second component covers
functioning. A patient's GAF score represents the worst of the two components. American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 32-34 (4th ed.
2000) (“DSM IV”).
2

A GAF score between 51 and 60 indicates moderate symptoms (e.g., flat affect and
circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or
school functioning (e.g., few friends, conflicts with peers or co-workers). DSM IV at 34.
5

Plaintiff testified that she previously worked as a nurses’ assistant and during the last
fifteen years, as a home health aide. Plaintiff believes that there was no difference between a
nurses’ assistant and a home health aide, except that the former works in a facility and the latter
in a home. Plaintiff worked full-time as a nurses’ assistant eleven and half years ago and worked
as a home health aide for four months. As a nurses’ assistant, the most plaintiff lifted was 200
pounds with assistance. Without assistance, she was able to lift about 100 pounds. Plaintiff left
her work as a nurses’ assistant to take care of her fiancé who was dying from cancer and because
of her worsening back problems. (Tr. 48-49.)
Plaintiff estimated that she stopped working full-time around March 2010. (Tr. 49.)
Plaintiff testified that the serious conditions that prevent her from working are depression, pain
and anxiety. She cannot be around a “bunch” of people, by which she means more than ten.
She suffers from “back flashes” about her father molesting her, which started around three or
four years ago. She had previously blocked her memories and did not tell anybody about the
molestations, until her sister told somebody. (Tr. 50.)
Plaintiff takes medication for her anxiety, which has helped her a little. She also takes
medication for her depression, but feels that her current medication does not help her because she
has continued crying. She believes that she may need a new prescription. Plaintiff plans to talk
to her doctor about switching her depression medication the next time she goes to the office.
Plaintiff sees a psychiatrist every two months and has been seeing him for the past few years.
Plaintiff also sees a therapist and will continue to see her once a week, when her therapist returns
from vacation. (Tr. 50-52.)
Plaintiff experiences pain in her back, side, stomach and shoulder. Plaintiff believes her
shoulder pain is a result of lifting for many years. After taking her pain medication, plaintiff
feels that her pain is a five on a scale from one to ten. Without medication, plaintiff feels that her
pain is a twenty on the same scale. Plaintiff has difficulty sleeping and takes several sleeping
medications. Even with medication, plaintiff wakes up with nightmares and “back flashes”
about three or four times a week. After she wakes up from her nightmares, she does not go back
to sleep. (Tr. 51-52.)
On a typical day, plaintiff wakes up around ten or eleven in the morning, uses the
bathroom and then goes to the kitchen to get a glass of tea. She goes back to her room and takes
her medications. She then lies in bed for up to eighteen hours a day and thinks. Plaintiff does
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not watch television or read books while lying in bed. When plaintiff needs to go shopping or go
to her doctor’s appointments, she goes with her daughter who drives her. Plaintiff occasionally
misses her doctor’s appointments because nightmares will keep her awake at night and she sleeps
through the appointment. Plaintiff only eats when her daughter cooks and reminds her to eat.
Plaintiff’s daughter cooks all of her meals. Plaintiff testified that she lost about forty pounds
since July 2012 because of her medical issues. (Tr. 53-54.)
Plaintiff does not do any housekeeping or laundry, as her daughter does all of the
household work. Plaintiff’s daughter helps her get in and out of the shower because plaintiff has
fallen several times. Plaintiff received a knot on her head and bruises on her legs from falling in
the shower in the past, but did not seek medical attention for her injuries. (Tr. 55.)
Plaintiff experienced abdominal pain since June 2012. Plaintiff likened the pain to being
stabbed by a knife. Plaintiff’s doctors told her that she needs a hysterectomy, but they have
refused to do the surgery because her lungs may collapse and because of the risk of a heart
attack, due to her low potassium levels. Plaintiff had taken potassium six times a day, up until
the day before the scheduled surgery; however, her potassium levels were still too low. Her
doctors also referred her to Barnes Jewish Hospital, but the hospital declined to complete the
surgery. Her doctors plan to send her to different doctors and hospitals to see if anyone will do
to the surgery, but so far no one has agreed. (Tr. 56-57.)
Plaintiff testified that her cysts, due to kidney disease and diverticulitis, are so big that
they are pushing against her organs. Without the surgery, her pain will continue and get worse.
Plaintiff’s cysts also burst, and she can tell that they do because the pain will cause her to get on
her knees and cry. Plaintiff also has high blood pressure, which she is currently medicating with
Atenolol. Her blood pressure runs about 146/106 and the last time it bottomed out was three
weeks ago, when one of her cysts burst. (Tr. 56-57.)
Plaintiff quit smoking in June 2011. Plaintiff does not experience any side effects from
her medications. Plaintiff can walk for about a block and a half and stand for ten to fifteen
minutes at a time. Plaintiff never stoops, kneels, crouches or crawls; however, she can stoop and
lean forward slightly when she has to lift something. When plaintiff puts on her pants or socks,
she sits on her bed and pulls her leg up. Plaintiff does not have any problems using her hands.
(Tr. 58-59.)

7

On April 8, 2012, plaintiff was involved in a car accident twenty miles from her home.
She was in the passenger’s seat and did not have a seat belt on. Plaintiff hit her head on the
windshield. Plaintiff suffered from neck pain after the accident, but it abated. Plaintiff still
suffers from shoulder pain. After the accident, plaintiff’s daughter indicated that plaintiff repeats
herself a lot, possibly due to head injuries. (Tr. 59-60.)
Plaintiff does not lift over five pounds, a limit given to her by her family physician, Dr.
James Hawk. She has difficulty lifting a gallon of tea out of the fridge. Plaintiff can sit for about
fifteen minutes until she begins to feels pain in her lower back.

Plaintiff does not feel

comfortable around more than ten people, including family members, and would likely have
problems around fewer than ten. (Tr. 61-62.)
Plaintiff experiences kidney “flare-ups,” which occur when one of her kidney cysts burst.
The flare-ups occurred six times within the last couple of weeks, and they last about three days.
When they occur, she drains out “black stuff” and experiences a lot of pain. She does not seek
medical help because doctors cannot help her, but calls her family physician, who usually
advises her to lie down and rest. (Tr. 62-63.)
Plaintiff lives on the first floor of her apartment building and uses the front entrance,
which is flat, as opposed to the back door which has fifteen steps. Plaintiff does not shower
every day because she needs her daughter’s assistance. Plaintiff does not get dressed, unless she
has a doctor’s appointment. She goes to the store once a month, and sometimes tells her
daughter what to get out of her food stamps. She does not feel comfortable in the store because
there are too many people and she feels that they are all looking and talking about her. When
physically near people, she sweats and gets red-faced, which lasts around thirty minutes to an
hour. Plaintiff cries every night until she falls asleep, which can take up to thirty minutes.
Plaintiff is sober and the last time she drank alcohol was July 27, 2012. While plaintiff does not
remember this, plaintiff’s daughter told her that they got into a fight, which prompted her to get
sober. (Tr. 63-66.)
Plaintiff has difficulty remembering to take her medication every day, and her daughter
has to remind her. Her daughter sets up her medication in a box. She does not leave her house,
except for doctor’s appointments and shopping trips. At times, plaintiff’s daughter has to force
her out of bed to go to doctor’s appointments. (Tr. 66-67.)

8

Plaintiff suffers from flashbacks to her childhood. While she blocked out parts of her
memory, she remembers that she was molested when she was seven or nine years old and that
her brother and mother were shot. While she remembers her teenage years and parts of her
childhood, she blocked the rest out. (Tr. 67-68.)
Plaintiff’s depression and anxiety levels are the same when she is sober or when she is
drinking. Her physical pain is worse when she is sober. Plaintiff uses a nebulizer for her chronic
obstructive pulmonary disease two to three times a day, even though she is supposed to use it
four to six times a day. She forgets to use it if her daughter doesn’t remind her. When she has
trouble breathing, she uses her inhaler. (Tr. 67-69.)
Vocational Expert Leanne Bloom (VE) also testified at the hearing. The ALJ asked her
several questions about the employability of three hypothetical persons with the same age,
education, and work history as plaintiff, plus the following Residual Functional Capacity (RFC)
to perform light exertion work involving simple, repetitive duties, but with the following
limitations: no work on ladders, ropes, or scaffolds; no work at unprotected heights; only
occasional stooping, kneeling, crouching, and crawling; and limited environmental irritants. The
VE testified that with these conditions, plaintiff could not perform her past work as a nurse’s
assistant. But, the VE testified, such a person could perform the work of an assembler, inspector,
and hand packager. (Tr. 71.)
The second hypothetical question presented a person who could perform only sedentary
work. The VE testified that this person could perform the duties of a sorter, an assembler, and a
bench packager. (Id.)
The third question asked the VE to modify the second hypothetical person by limiting her
to occasional interaction with coworkers, supervisors, and the general public. The VE testified
that such a person could perform the same work as the subject of question two, but that the
numbers of such positions would be reduced by 15%. (Tr. 72.)
III. DECISION OF THE ALJ
On June 14, 2013, the ALJ issued a decision finding that plaintiff was not disabled. (Tr.
24-35.) The ALJ first determined that the plaintiff met the insured status requirements of the
Social Security Act through September 30, 2015. The ALJ then found that the claimant had not
engaged in substantial gainful activity since October 1, 2010, the alleged onset date. The ALJ
found that plaintiff’s polycystic kidney disease, chronic obstructive pulmonary disease (COPD),
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anxiety, PTSD and depression were severe impairments.

The ALJ also determined that

plaintiff’s diverticulitis and hypertension were non-severe because they did not pose more than a
minimal impact on the plaintiff’s ability to perform work activity. (Tr. 26-27.)
The ALJ also found that plaintiff had moderate difficulties with concentration,
persistence or pace. She found support for this finding in plaintiff’s testimony that she does not
read for pleasure, she does not watch much television, she has trouble remembering to take her
medication, and she has problems paying attention and following written instruction. However,
she does better with spoken instruction. (Tr. 28.)
The ALJ determined that, while plaintiff had impairments that were severe, plaintiff did
not present credible evidence to show that she had an impairment or combination of impairments
that met or medically equaled the severity of the listed impairments in 20 CFR Part 404, Subpart
P, Appendix 1. Thus, a finding of disability could not be established on the medical facts alone.
(Tr. 27.)
After considering the entire record, the ALJ found that plaintiff had the residual
functional capacity (RFC) to perform light work, with the exception that plaintiff cannot climb
ladders, ropes, or scaffolding, though she may occasionally stoop, kneel crouch and/or crawl.
Plaintiff must avoid all exposure to unprotected heights and must avoid concentrated exposure to
poorly ventilated areas and environmental irritants. Additionally, plaintiff is limited to simple,
routine and repetitive work, with only occasional interaction with the public, coworkers and
supervisors. (Tr. 29.) The ALJ concluded that given the record as a whole, the plaintiff could
perform a reduced range of light work. (Tr. 33.) The ALJ also determined that plaintiff was
unable to perform her past relevant work as a nurses’ assistant. (Tr. 34.) Considering the
testimony of the vocational expert (VE), plaintiff’s education, work experience and RFC, the
ALJ found that plaintiff was capable of making adjustments to other work that existed in the
national economy, including assembler, inspector and hand packager. (Tr. 35.)
Accordingly, the ALJ found that plaintiff was not disabled under the Social Security Act
from October 1, 2010 to the date of the decision. (Id.)

IV. GENERAL LEGAL PRINCIPLES
The court’s role on judicial review of the Commissioner’s decision is to determine
whether the Commissioner’s findings comply with the relevant legal requirements and are
10

supported by substantial evidence in the record as a whole. Pate-Fires v. Astrue, 564 F.3d 935,
942 (8th Cir. 2009). “Substantial evidence is less than a preponderance, but is enough that a
reasonable mind would find it adequate to support the Commissioner’s conclusion.” Id. To
determine whether the evidence is substantial, the court considers evidence that both supports
and detracts from the Commissioner’s decision. Id. A court may not reverse a decision merely
because substantial evidence exists in the record that would support a contrary outcome or
because the court would have decided the case differently. See Krogmeier v. Barnhart, 294 F.3d
1019, 1022 (8th Cir. 2002).
In determining disability, the ALJ uses a five-step regulatory framework. 20 C.F.R.
§ 416.920(a)(4); Pate-Fires, 564 F.3d at 942. For the first four steps, the burden is on the
claimant to prove disability, and if the claimant is successful at each of the first four steps, the
burden shifts to the Commissioner at Step Five. Pate-Fires, 564 F.3d at 942.
First, the claimant must prove that she is not currently engaged in substantial gainful
activity. 20 C.F.R. § 416.920(a)(4)(i). Second, the claimant must prove that she suffers from a
severe impairment that significantly limits her physical or mental ability to do basic activities. 20
C.F.R. § 416.920(a)(4)(ii). Third, the claimant must show that her condition meets or equals a
listed impairment. 20 C.F.R. § 416.920(a)(4)(iii). If the claimant does not suffer from a listed
impairment or its equivalent, the Commissioner’s analysis proceeds to Steps Four and Five. In
Step Four, the ALJ must consider whether the claimant retains the RFC to perform past relevant
work (PRW). 20 C.F.R. § 416.920(a)(4)(iv). The claimant bears the burden of demonstrating she
is no longer able to return to her PRW. Pate-Fires, 564 F.3d at 942. If the Commissioner
determines the claimant cannot return to PRW, the burden shifts to the Commissioner at Step
Five to show the claimant retains the RFC to perform other work that exists in significant
numbers in the national economy. Id.; 20 C.F.R. § 416.920(a)(4)(v).

V. DISCUSSION
Plaintiff presents two arguments appealing the ALJ’s determination that plaintiff was not
disabled. First, plaintiff argues that the ALJ erred in assessing the plaintiff’s residual functional
capacity (RFC) because she failed to include a concentration, persistence or pace element in
determining which jobs plaintiff could perform. Despite testimony, medical evidence and the
ALJ’s own determination that plaintiff had moderate difficulties in concentration, persistence or
11

pace due to depression and anxiety, the ALJ posed hypothetical questions to the Vocational
Expert (VE), that only included limits to simple, repetitive tasks and limited social interaction,
and did not sufficiently include a moderate concentration, persistence or pace limitation.
Second, plaintiff argues that the ALJ erred because she improperly discounted the
opinions of plaintiff’s treating physicians, Dr. James Hawk and Dr. Patrick Oruwari, when she
failed to provide reasons comporting with the criteria set forth in 20 C.F.R. § 404.1527(d)(2), for
why she gave little weight to their medical opinions.
The court agrees that the ALJ failed to focus the questions she posed to the VE to
properly include a concentration, persistence or pace element and that the ALJ improperly
discounted the opinions of plaintiff’s treating physician Dr. Oruwari, but not those of Dr. Hawk.

A. Residual Functional Capacity and Hypotheticals Posed to the Vocational Expert
An ALJ’s determination of a plaintiff’s RFC is a medical question and must be supported
by substantial evidence in the record. Hutsell v. Massanari, 259 F.3d 707, 711 (8th Cir. 2001);
Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001); Singh v. Apfel, 222 F.3d 448, 451 (8th Cir.
2000). RFC is defined as what a claimant can do despite her limitations, and it must be
determined on the basis of all relevant evidence, including medical records, physician’s opinions
and a claimant’s description of her limitations. 20 C.F.R. §§ 404.1545, 416.945(a); Donahoo v.
Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001). While the ALJ is not restricted to medical evidence
alone in evaluating RFC, the ALJ is required to consider at least some evidence from a medical
professional. Lauer, 245 F.3d at 704. The ALJ must include a narrative discussion describing
how the evidence supports each conclusion, citing specific medical facts and nonmedical
evidence, including daily activities and observations. SSR 96-8p, 1996 WL 374184, at *7

(1996). While the ALJ bears the primary responsibility for determining a claimant’s RFC, the
claimant bears the burden of proving disability and demonstrating RFC. Vossen v. Astrue, 612
F.3d 1011, 1016 (8th Cir. 2010).
An ALJ may rely on a VE’s response to a properly formed hypothetical question to show
that the jobs that a person with the plaintiff’s RFC could perform exist in significant numbers.
Guilliams v. Barnhart, 393 F.3d 798, 804 (8th Cir. 2005). A VE’s testimony based on a
hypothetical question that does not encompass all the relevant parts of a claimant’s impairments
cannot constitute substantial evidence to support an ALJ’s decision. Renstrom v. Astrue, 680
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F.3d 1057, 1067 (8th Cir. 2012). While the hypothetical question does not have to contain a
description of the claimant’s impairments in diagnostic terms, it must include the concrete
consequences of the claimant’s impairments. Lacroix v. Barnhart, 465 F.3d 881, 889 (8th Cir.
2006). An ALJ cannot pose generalized questions that contain assumptions that the claimant has
the ability to perform a certain category of work. Guilliams, 393 F.3d at 804.
In this case, the ALJ’s decision is not supported by substantial evidence on the record,
because the hypothetical questions she posed to the VE did not direct the VE to consider all of
plaintiff’s limitations in concentration, persistence or pace in determining which jobs existed in
the economy that plaintiff could perform.

The ALJ herself determined that plaintiff had

moderate limitations in concentration, persistence and pace. (Tr. 28.) However, these limitations
were not included in the hypothetical questions that the ALJ posed to the VE. The ALJ posed
questions to the VE that contained limitations to “simple” and “repetitive” work, with additional
limitations regarding plaintiff’s restricted contact with the public and co-workers. (Tr. 70, 72.)
The “simple” and “repetitive” language failed to capture all of plaintiff’s moderate difficulties in
concentration, persistence or pace, despite the ALJ’s own finding that plaintiff suffered from
these limitations. (Tr. 28.)
While the ALJ does not have to use exact, diagnostic terms to frame a hypothetical
question, the ALJ must include the consequences of the claimant’s impairments. Lacroix, 465
F.3d at 889. Here, the ALJ did not have to use exact diagnostic language, but her hypothetical
questions were required to include the consequences of the plaintiff’s moderate impairments in
concentration, persistence and pace, which the ALJ found existed, so that the VE could base her
opinion on the full extent of plaintiff’s limitations. The ALJ’s use of “simple” and “repetitive”
language failed to capture the consequences, as is illustrated by the jobs that were elicited from
the VE by the ALJ’s questioning. Based on the ALJ’s questions, the three jobs that the VE
identified as available to plaintiff in the national and local economy were assembler, inspector
and hand packager. (Tr. 34-35, 70-71.) According to the United States Department of Labor’s
Selected Characteristics of Occupations Defined in the Dictionary of Occupational Titles, these
occupations require the individual to be able to perform repetitive work, according to set
procedure, sequence or pace. United States Department of Labor, Selected Characteristics of
Occupations Defined in the Dictionary of Occupational Titles 284, 315, 318 (1993). Thus, an
individual, even when performing simple and repetitive jobs, may be required to have a
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persistence or pace element. In this case, the ALJ posed questions using “simple” and
“repetitive” language, which elicited jobs from the VE requiring such a persistence or pace
element. (Tr. 70-71).

Instead, the ALJ should have posed questions to the VE including

plaintiff’s moderate limitations in concentration, persistence or pace, such that the VE was
oriented to plaintiff’s specific situation. Since the ALJ determined the plaintiff’s RFC based on
hypothetical questions posed to the VE that did not orient the VE to all of plaintiff’s limitations,
the RFC finding is not supported by substantial evidence.
In her brief, plaintiff relies on a Seventh Circuit case, O’Connor-Spinner v. Astrue, which
held that the ALJ should refer expressly to limitations on concentration, persistence and pace in
the hypothetical questions posed to VEs to focus the VEs’ attention on these limitations and
assure reviewing courts that the VEs’ testimony constitutes substantial evidence of the jobs that a
claimant can do. O’Connor-Spinner v. Astrue, 627 F.3d 614, 621 (7th Cir. 2010). While the
plaintiff does rely on a Seventh Circuit case, which is not binding precedent here, the plaintiff
also draws on Eighth Circuit cases that hold that questions posed to a VE must capture all of
plaintiff’s limitations so that the VE can accurately assess whether jobs exist in the economy.
Nguyen v. Chater, 75 F.3d 429, 431 (8th Cir. 1996) (hypothetical question posed by ALJ was
deficient because it omitted medical evidence of plaintiff’s deficiencies in concentration,
persistence or pace); Smith v. Shalala, 31 F.3d 715, 717 (8th Cir. 1994) (hypothetical question to
VE must precisely describe a claimant’s impairments so that the expert may accurately assess
whether jobs exist for the claimant); Whitmore v. Bowen, 785 F.2d 262, 263 (8th Cir. 1986) (a
VE’s testimony based on insufficient hypothetical questions may not constitute substantial
evidence to support a finding of no disability). Moreover, this court has held that hypothetical
questions posed to the VE must contain all of plaintiff’s limitations. See Leeper v. Colvin, No.
4:13-CV-367-ACL, 2014 WL 4713280 (E.D. Mo. Sept. 22, 2014) (holding that hypothetical
questions posed to the VE must include all of plaintiff’s limitations, such that VE may accurately
determine plaintiff’s ability to work); Logan-Wilson v. Colvin, No. 4:13-CV-1119-JAR, 2014
WL 4681459 (E.D. Mo. Sept. 19, 2014) (holding that the ALJ did not properly account for
plaintiff’s pace difficulties in the RFC).
Therefore, the ALJ did not account for all of plaintiff’s limitations in concentration,
persistence and pace in the hypotheticals that she posed to the VE, such that the VE could not
properly determine plaintiff’s ability to work in jobs available in the economy. The ALJ relied on
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this testimony to determine plaintiff’s RFC. Thus, the ALJ’s RFC determination is not supported
by substantial evidence. The court orders remand for consideration on this matter.

B. Treating Physician Evidence
A treating physician’s opinion should not ordinarily be disregarded and is entitled to
consideration for substantial weight. Singh, 222 F.3d at 452. A treating physician’s opinion
regarding a claimant’s impairments should be given controlling weight, if the opinion is wellsupported by medically acceptable diagnostic techniques and is not inconsistent with substantial
evidence in the record. Id. A treating physician’s opinion may be disregarded in favor of other
opinions if it is not supported by the record. Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001)
(ALJ may discount or disregard such an opinion if other medical assessments are supported by
superior medical evidence or if the treating physician has offered inconsistent opinions); Thomas
v. Sullivan, 928 F.2d 255, 259 (8th Cir. 1991) (treating physician’s opinion does not deserve
controlling weight when it is nothing more than a conclusory statement). Moreover, an ALJ may
appropriately rely on non-examining opinions as part of her RFC analysis. See Hacker v.
Barnhart, 459 F.3d 934, 935 (8th Cir. 2006) (ALJ’s RFC assessment was supported by
substantial evidence, including the opinions from non-examining doctors). Ultimately, it is up to
the ALJ to determine the weight each medical opinion is due. Id. at 936 (ALJ’s task is to resolve
conflicts in the evidence).
Whether the ALJ grants a treating physician’s opinion substantial or little weight, the
regulations provide that the ALJ must always give good reason for the particular weight given.
See 20 C.F.R. § 404.1527(d)(2). The ALJ must provide principled reasons to reject a medical
source opinion. Reed v. Barnhart, 399 F.3d 917, 921 (8th Cir. 2005). Whether or not the ALJ
gives substantial or less weight to a treating physician’s opinion, the ALJ must provide good
reasons for giving the opinion that weight. Holmstrom v. Massanari, 270 F.3d 715, 720 (8th Cir.
2001). Under the regulations, unless a treating physician’s opinion is granted controlling weight,
the medical opinions of record must be evaluated using the following factors: (1) examining
relationship, (2) treatment relationship, (3) supportability, (4) consistency of the opinion, (5)
specialization of the medical source and (6) other factors brought to the Agency’s attention. 20
C.F.R. § 404.1527(d)(2).

15

Plaintiff argues that the ALJ improperly discounted the medical opinions of plaintiff’s
treating physician, Dr. James Hawk, because she failed to evaluate his opinions using the factors
of 20 C.F.R. § 416.927(c)(1)-(6), other than his specialty. The court disagrees. Here, the ALJ
afforded Dr. Hawk’s medical opinions on plaintiff’s mental impairments little weight (Tr. 33)
and so the ALJ was required to evaluate the medical record using the six factors of 20 C.F.R. §
416.927(c)(1)-(6). See 20 C.F.R. § 404.1527(d)(2). The ALJ properly considered that Dr. Hawk
was not a psychologist or psychiatrist, and the record indicates that Dr. Hawk was a family
physician. (Tr. 33, 61.)

In evaluating a physician’s opinion, an ALJ should consider the

physician’s medical specialty and Dr. Hawk was not a psychiatrist or psychologist trained in
mental evaluations. See 20 C.F.R. § 404.1527(c)(5), 416.927(c)(5)
Additionally, the ALJ considered that Dr. Hawk’s medical opinions regarding plaintiff’s
mental impairments relied primarily on plaintiff’s subjective reports of symptoms and
limitations, without any critical examination for their truth. (Tr. 33.) The ALJ also considered
that plaintiff’s subjective reports regarding her mental impairments and the degree of her
limitations and determined that they were not credible and not supported by the medical records.3
See McCoy v. Astrue, 648 F.3d 605, 616-17 (8th Cir. 2011) (a physician’s report is rendered less
credible because his evaluation was based, in part on the claimant’s less than credible selfreported symptoms). Here, the ALJ properly factored in that Dr. Hawk’s medical opinions on
plaintiff’s impairments were based on plaintiff’s less than credible subjective reports and
determined that his medical opinions were rendered less than credible.
The ALJ also considered Dr. Hawk’s treatment of plaintiff’s mental impairments. The
ALJ determined that while Dr. Hawk had been treating plaintiff’s psychiatric issues with
psychotropic medications, his treatment records lacked any formal psychiatric evaluations,
testing or medical signs of laboratory findings. (Tr. 33.) Thus, Dr. Hawk failed to support his
medical opinions on plaintiff’s mental limitations with medical evidence. This comported with
the regulations, which provide that the ALJ should consider the treatment the physician has
provided and the kinds of examinations the source has performed and that more weight will be
given to an opinion when medical source presents relevant evidence, such as medical signs, in
3

The ALJ determined that plaintiff’s subjective complaints were not credible because they were
inconsistent with the record as a whole. (Tr. 29-33.) The ALJ’s consideration of the subjective
aspects of plaintiff’s complaints comported with the regulations in 20 C.F.R. §§ 404.1529,
416.929, and the framework set forth in Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984).
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support of opinion. See 20 C.F.R §§ 404.1527(c)(2), 416.927(c)(2), 404.1527(c)(3),
416.927(c)(3). Overall, the ALJ provided valid reasons for giving Dr. Hawk’s medical opinion
little weight.
Plaintiff additionally argues that the ALJ improperly discounted the medical opinions of
plaintiff’s psychiatrist, Dr. Patrick Oruwari, because she failed to provide reasons for discounting
his medical opinions about plaintiff’s mental limitations. On this point, the court agrees.
The regulations and case law of this Circuit require that an ALJ provide principled
reasons for discounting a treating physician’s opinion. Here, the ALJ did not provide any such
reasons. The ALJ mentions the psychiatrist once, when she states “[T]he claimant reportedly
treats anxiety and depression with ‘Dr. Oh’.” (Tr. 29.) The ALJ does not provide reasons for
why she discounted Dr. Oruwari’s opinions, a required by 20 C.F.R. § 404.1527(d)(2).
In this Circuit, there are cases that support the position that an ALJ is not required to
explicitly discuss each piece of evidence, even if it was considered in the ultimate decision. See
Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998) (an ALJ is not required to discuss every piece
of evidence she considers in her decision).

For example, in Hausmann v. Astrue, which

defendant cites, the court found that the ALJ was not required to explicitly discuss each piece of
evidence in the ALJ’s decision to discount a treating physician’s opinion. Hausmann v. Astrue,
No. 4:06-CV-1620-CEJ, 2008 WL 783277 at *17 (E.D. Mo. Mar. 20, 2008). However, the facts
in that case are distinct from the case here, because the ALJ did specifically refer to and discuss
the reasons for discounting the treating physician’s opinion, even if the ALJ did not explicitly
discuss every single piece of evidence.

Here, the ALJ failed to discuss any reason for

discounting Dr. Oruwari’s opinion.
Thus, the ALJ failed to properly discuss reasons why she discounted Dr. Oruwari’s
opinion and the court orders remand for explicit consideration of this matter.
VI. CONCLUSION
For the reasons set forth above, the decision of the Commissioner of Social Security is
reversed and this case is remanded to the Commissioner for further proceedings consistent with
this opinion. An appropriate Judgment Order is issued herewith.
/S/ David D. Noce
l
UNITED STATES MAGISTRATE JUDGE
Signed on May 5, 2015.
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