Green v. Colvin
MEMORANDUM AND ORDER: For the reasons discussed above, the Commissioner's decision is not based upon substantial evidence on the record as a whole and the cause is therefore remanded to the Commissioner for further consideration in accordance wi th this Memorandum and Order. Upon remand, the ALJ shall properly assess Greens credibility, consider the third party statements, andformulate a new RFC based on the record as a whole, obtaining additional medical evidence addressing Green's ability to reach overhead, if necessary. Signed by Magistrate Judge Abbie Crites-Leoni on 9/27/2016. (JMC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
) Case No. 4:15 CV 827 ACL
MEMORANDUM AND ORDER
Plaintiff Sharon Green brings this action pursuant to 42 U.S.C. ' 405(g), seeking judicial
review of the Social Security Administration Commissioner’s denial of her applications for
Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act and Supplemental
Security Income (“SSI”) under Title XVI of the Act.
An Administrative Law Judge (“ALJ”) found that, despite Green’s severe bilateral
shoulder joint pain, she was not disabled as she had the residual functional capacity (“RFC”) to
perform past work as a retail sales clerk, and other jobs that exist in significant numbers in the
This matter is pending before the undersigned United States Magistrate Judge, with
consent of the parties, pursuant to 28 U.S.C. ' 636(c). A summary of the entire record is
presented in the parties’ briefs and is repeated here only to the extent necessary.
I. Procedural History
Green protectively filed her applications for DIB and SSI on April 12, 2012, alleging that
she became unable to work due to her disabling condition on April 9, 2012. (Tr. 142-48, 135-41.)
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Her claims were denied initially. (Tr. 71, 72.) Following an administrative hearing, Green’s
claims were denied in a written opinion by an ALJ, dated January 23, 2014. (Tr. 13-26.) Green
then filed a request for review of the ALJ’s decision with the Appeals Council of the Social
Security Administration (SSA), which was denied on April 20, 2015. (Tr. 7, 1-5.) Thus, the
decision of the ALJ stands as the final decision of the Commissioner. See 20 C.F.R. '' 404.981,
In the instant action, Green first claims that the “[s]ubstantial evidence does not support the
ALJ’s finding that Plaintiff can frequently reach overhead.” (Doc. 12 at 10.) Green next argues
that the ALJ erred “in finding Plaintiff could return to past relevant work at a job that was not
performed at substantial gainful activity.” Id. at 14. Green finally argues that the ALJ “failed to
identify or resolve the overhead reaching conflicts between the VE testimony and the DOT/SCO
description of the identified jobs.” Id. at 15.
II. The ALJ=s Determination
The ALJ stated that Green met the insured status requirements of the Social Security Act
through December 31, 2016. (Tr. 15.) The ALJ found that Green had not engaged in substantial
gainful activity since April 9, 2012. Id.
In addition, the ALJ concluded that Green had the following severe impairment:
post-surgery bilateral shoulder joint pain. Id. The ALJ found that Green did not have an
impairment or combination of impairments that meets or equals in severity the requirements of any
listed impairment. (Tr. 16.)
As to Green’s RFC, the ALJ stated:
After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform light work
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as defined in 20 CFR 404.1567(b) and 416.967(b) in that the
claimant can stand/walk six hours out of an eight-hour workday; can
sit six hours out of an eight hour workday; can occasionally lift 20
pounds, 10 pounds frequently; must avoid climbing ropes, ladders,
and scaffolds; can frequently push and pull with the bilateral upper
extremities; and can frequently reach overhead.
In support of this determination, the ALJ stated that the record did not contain any opinions
from treating or examining physicians indicating that Green was disabled or that she had greater
limitations. (Tr. 23.) The ALJ also performed a credibility analysis and found that Green’s
allegations regarding her limitations were not entirely credible. (Tr. 21.)
The ALJ further found that Green was capable of performing past relevant work as a retail
sales clerk. Id. The ALJ found in the alternative that there were other jobs that exist in
significant numbers in the national economy that Green can also perform, such as mail sorter,
marker, and cashier. (Tr. 24-25.) The ALJ therefore concluded that Green has not been under a
disability, as defined in the Social Security Act, from April 9, 2012, through the date of the
decision. (Tr. 26.)
The ALJ’s final decision reads as follows:
Based on the application for a period of disability and disability
insurance benefits protectively filed on April 12, 2012, the claimant
is not disabled under sections 216(i) and 223(d) of the Social
Based on the application for supplemental security income
protectively filed on April 12, 2012, the claimant is not disabled
under section 1614(a)(3)(A) of the Social Security Act.
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III. Applicable Law
III.A. Standard of Review
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 of the evidence, 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:
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
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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). 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 v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001) (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
III.B. Determination of Disability
A disability is defined 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 that has lasted or can be expected to last for a continuous period of not less than
twelve months. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); 20 C.F.R. § 416.905. A claimant
has a disability when the claimant is “not only unable to do his previous work but cannot,
considering his age, education and work experience engage in any other kind of substantial gainful
work which exists … in significant numbers either in the region where such individual lives or in
several regions of the country.” 42 U.S.C. § 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the Social Security
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Act, the Commissioner follows a five-step sequential evaluation process outlined in the
regulations. 20 C.F.R. § 416.920; see Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007). First,
the Commissioner will consider a claimant’s work activity. If the claimant is engaged in
substantial gainful activity, then the claimant is not disabled. 20 C.F.R. § 416.920(a)(4)(i).
Second, if the claimant is not engaged in substantial gainful activity, the Commissioner
looks to see “whether the claimant has a severe impairment that significantly limits the claimant’s
physical or mental ability to perform basic work activities.” Dixon v. Barnhart, 343 F.3d 602,
605 (8th Cir. 2003). “An impairment is not severe if it amounts only to a slight abnormality that
would not significantly limit the claimant’s physical or mental ability to do basic work activities.”
Kirby, 500 F.3d at 707; see 20 C.F.R. §§ 416.920(c), 416.921(a).
The ability to do basic work activities is defined as “the abilities and aptitudes necessary to
do most jobs.” 20 C.F.R. § 416.921(b). These abilities and aptitudes include (1) physical
functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or
handling; (2) capacities for seeing, hearing, and speaking; (3) understanding, carrying out, and
remembering simple instructions; (4) use of judgment; (5) responding appropriately to
supervision, co-workers, and usual work situations; and (6) dealing with changes in a routine work
setting. Id. § 416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141 (1987). “The
sequential evaluation process may be terminated at step two only when the claimant’s impairment
or combination of impairments would have no more than a minimal impact on her ability to work.”
Page v. Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007) (internal quotation marks omitted).
Third, if the claimant has a severe impairment, then the Commissioner will consider the
medical severity of the impairment. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, then the claimant is considered disabled, regardless
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of age, education, and work experience. 20 C.F.R. §§ 416.920(a)(4)(iii), 416.920(d); see Kelley
v. Callahan, 133 F.3d 583, 588 (8th Cir. 1998).
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the
presumptively disabling impairments, then the Commissioner will assess the claimant’s RFC to
determine the claimant’s “ability to meet the physical, mental, sensory, and other requirements” of
the claimant’s past relevant work. 20 C.F.R. §§ 416.920(a)(4)(iv), 416.945(a)(4). “RFC is a
medical question defined wholly in terms of the claimant’s physical ability to perform exertional
tasks or, in other words, what the claimant can still do despite his or her physical or mental
limitations.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (internal quotation marks
omitted); see 20 C.F.R. § 416.945(a)(1). The claimant is responsible for providing evidence the
Commissioner will use to make a finding as to the claimant’s RFC, but the Commissioner is
responsible for developing the claimant’s “complete medical history, including arranging for a
consultative examination(s) if necessary, and making every reasonable effort to help [the claimant]
get medical reports from [the claimant’s] own medical sources.” 20 C.F.R. § 416.945(a)(3).
The Commissioner also will consider certain non-medical evidence and other evidence listed in
the regulations. See id. If a claimant retains the RFC to perform past relevant work, then the
claimant is not disabled. Id. § 416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in Step Four will not allow the claimant to
perform past relevant work, then the burden shifts to the Commissioner to prove that there is other
work that the claimant can do, given the claimant’s RFC as determined at Step Four, and his or her
age, education, and work experience. See Bladow v. Apfel, 205 F.3d 356, 358-59 n.5 (8th Cir.
2000). The Commissioner must prove not only that the claimant’s RFC will allow the claimant to
make an adjustment to other work, but also that the other work exists in significant numbers in the
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national economy. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20 C.F.R. §
416.920(a)(4)(v). If the claimant can make an adjustment to other work that exists in significant
numbers in the national economy, then the Commissioner will find the claimant is not disabled. If
the claimant cannot make an adjustment to other work, then the Commissioner will find that the
claimant is disabled. 20 C.F.R. §416.920(a)(4)(v). At Step Five, even though the burden of
production shifts to the Commissioner, the burden of persuasion to prove disability remains on the
claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
Green first argues that substantial evidence does not support the ALJ’s finding that Green
can frequently reach overhead. Green also contends that the ALJ made several errors in assessing
her credibility, which affected the ALJ’s RFC determination.
Residual functional capacity is defined as that which a person remains able to do despite
her limitations. 20 C.F.R. § 404.1545(a), Lauer v. Apfel, 245 F.3d 700, 703 (8th Cir. 2001). The
ALJ must assess a claimant’s RFC based upon 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. 20 C.F.R. § 404.1545(a); Anderson v. Shalala,
51 F.3d 777, 779 (8th Cir. 1995); Goff v. Barnhart, 421 F.3d 785, 793 (8th Cir. 2005). A
claimant’s RFC is a medical question, and there must be some medical evidence, along with other
relevant, credible evidence in the record, to support the ALJ’s RFC determination. Id.; Hutsell v.
Massanari, 259 F.3d 707, 711–12 (8th Cir. 2001); Lauer, 245 F.3d at 703–04; McKinney v. Apfel,
228 F.3d 860, 863 (8th Cir. 2000). An ALJ’s RFC assessment which is not properly informed and
supported by some medical evidence in the record cannot stand. Hutsell, 259 F.3d at 712.
However, although an ALJ must determine the claimant’s RFC based upon all relevant evidence,
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the ALJ is not required to produce evidence and affirmatively prove that a claimant is able to
perform certain functions. Pearsall, 274 F.3d at 1217 (8th Cir. 2001); McKinney, 228 F.3d at
863. The claimant bears the burden of establishing her RFC. Goff, 421 F.3d at 790.
In determining Green’s RFC, the ALJ first stated that the medical records do not support
Green’s allegations. (Tr. 18.) The ALJ then provided a detailed summary of the objective
medical evidence. (Tr. 18-21.) The medical evidence reveals Green started treating with
Christopher W. Kostman, M.D., in January 2012, due to complaints of bilateral hand weakness
and bilateral shoulder pain. (Tr. 18, 278.) At that time, she reported that she was working as a
caterer and that her symptoms started in October of 2011. (Tr. 278.) She had seen an orthopedic
surgeon for her shoulder symptoms and underwent a subacromial injection, which did not improve
her right shoulder symptoms. Id. Dr. Kostman diagnosed Green with carpal tunnel syndrome
and AC joint degenerative changes, and recommended nerve conduction testing, splinting at night,
and the use of nonsteroidal anti-inflammatory medication. (Tr. 279.) On February 1, 2012, Dr.
Kostman indicated that the nerve conduction study was negative for carpal tunnel syndrome. (Tr.
280.) Green complained of persistent shoulder pain. Id. Dr. Kostman administered an AC
joint injection, and recommended physical therapy. Id. Physical therapy notes dated February
13, 2012, indicate Green continued to complain of bilateral shoulder pain secondary to her job
demands of reaching and lifting overhead, and that Green’s “whole work station requires overhead
reaching.” (Tr. 295.) Green underwent multiple cortisone injections in February and March of
2012, and reported that they helped her symptoms but only lasted a few days. (Tr. 283-85.) On
March 28, 2012, Dr. Kostman indicated that Green wished to proceed with right and left shoulder
arthroscopy, with her left shoulder surgery to be scheduled first. (Tr. 285.)
Green underwent left shoulder arthroscopy, with subacromial decompression and distal
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claviculectomy, and debridement of partial-thickness rotator cuff tear on April 9, 2012. (Tr. 317,
323-24.) On April 25, 2012, a physician assistant at Dr. Kostman’s office indicated that Green
was doing well, was progressing her motion, and was having less pain. (Tr. 286.) It was
recommended that Green attend physical therapy at least once a week. Id. On April 23, 2012,
physical therapy notes indicate Green reported her left shoulder was approximately 75 percent
better after five therapy visits. (Tr. 300.) Green reported that she was able to use her left arm to
perform activities such as washing her hair, but still had difficulty with overhead reaching. Id.
On May 21, 2012, Green underwent the same surgical procedure on her right shoulder.
(Tr. 307.) On June 4, 2012, Green’s therapist indicated that Green had attended three out of five
treatment sessions and reported her right shoulder had improved 65 to 70 percent. (Tr. 350.)
Green indicated that she was able to use her dominant arm for all self-care without difficulty. Id.
It was noted that, despite improvements, bilateral weakness continued to be an issue affecting
Green’s “functional arm use.” Id.
On June 6, 2012, Green saw Dr. Kostman’s physician assistant for a two-week follow-up
after her right shoulder surgery. (Tr. 409.) Green reported that she was doing very well, and had
no pain. Id. She was advised to continue with therapy. Id.
On June 18, 2012, it was noted that Green had called and canceled her remaining therapy
appointments, stating that she had seen her doctor and he indicated that her motion looked good
and she did not need more therapy. (Tr. 351.)
On June 20, 2012, Green saw Dr. Kostman for follow-up regarding her right shoulder
surgery, at which time Dr. Kostman indicated she was doing very well in physical therapy. (Tr.
410.) Upon examination, she had no tenderness to palpation and minimal tenderness to palpation
involving her AC joint; full right shoulder range of motion in forward flexion, abduction, internal
Page 10 of 19
and external rotation; full rotator cuff strength; no instability; and negative cross-arm adduction
test. Id. Green reported that she was interested in returning to work around the first of July. Id.
Dr. Kostman indicated that Green should continue with exercises on her own, follow-up with him
on an as-needed basis, and could return to work on July 1st as planned. Id.
On January 2, 2013, Green presented to Grace Hill Health Centers, Inc. (“Grace Hill”) with
complaints of bilateral shoulder pain that was aggravated by pushing, range of motion of the
shoulders, and lying in bed. (Tr. 434.) Green indicated that she had lost her insurance in July of
2012 because she was not able to continue her job due to pain, and that she was no longer able to
see a specialist. Id. Upon examination, bilateral shoulder tenderness was noted. (Tr. 435.)
Green had full range of motion above her head and in front of herself, with pain on the range of
motion, and slightly decreased range of motion to posterior movements. Id.
On April 17, 2013, Green returned to Grace Hill with complaints of shoulder pain. (Tr.
441.) Green reported that the pain was aggravated by movement and by placing her arms at her
side, and was relieved by elevating her arms to shoulder level. Id. She reported mild pain relief
with Celebrex1 and Tramadol,2 and indicated that she was performing the exercises learned in
physical therapy daily. Id. Upon examination, the nurse practitioner noted bilateral shoulder
tenderness and bilateral moderately reduced range of motion. (Tr. 442.) Green had decreased
range of motion above her head, behind her back, and mildly limited range of motion in front of
her body. Id. Green was prescribed Celebrex and Tramadol and was referred to an orthopedist.
On June 19, 2013, Green saw Joseph Williams, M.D., for an orthopedic examination. (Tr.
Celebrex is a nonsteroidal anti-inflammatory drug indicated for the relief of pain and swelling.
See WebMD, http://www.webmd.com/drugs (last visited August 18, 2016).
Tramadol is indicated for the relief of moderate to moderately severe pain. See WebMD,
http://www.webmd.com/drugs (last visited August 18, 2016).
Page 11 of 19
414-15.) Green complained of bilateral shoulder pain. (Tr. 414.) Upon examination, Green
had full range of motion of both shoulders, negative impingement tests, and negative supraspinatus
test. (Tr. 416.) X-rays revealed postoperative changes. Id. Dr. Williams stated that Green has
“persistent bursitis” in both shoulders. Id. He continued Green’s medications, and administered
injections in both shoulders. Id.
In a letter to Green dated July 16, 2013, Grace Hill nurse practitioner Brook Strickland
stated that Green’s x-ray results revealed a bone spur at the end of the right clavicle interfering
with her right shoulder; a widening of the joint space of the right shoulder; and also arthritis in the
right shoulder. (Tr. 445.) Ms. Strickland stated that the left shoulder x-ray revealed arthritis and
widening of the joint space. Id. Ms. Strickland indicated that she had referred Green to an
Green presented to Ms. Strickland on August 27, 2013, at which time she complained of
aching and dull bilateral shoulder pain, which was aggravated by repetitive motion of the
shoulders. (Tr. 446.) Green reported that she worked ten to twelve hours a week, and her pain
was worsened with work. Id. Upon examination, Ms. Strickland noted decreased shoulder
range of motion above the head 160 degrees bilaterally, and behind the back range of motion was
moderately limited. (Tr. 448.) She also noted “significant tenderness” to the bilateral clavicles
and superior shoulders. Id. Ms. Strickland increased Green’s dosage of Tramadol. Id.
Green saw Dr. Williams for follow-up on September 11, 2013. (Tr. 452.) Green
complained of persistent bilateral shoulder pain despite receiving previous cortisone injections.
Id. Green had normal range of motion of the shoulders. Id. Dr. Williams diagnosed her with
osteoarthritis of the shoulders, and administered a cortisone injection into the right shoulder. Id.
He recommended an MRI of the right shoulder, but Green indicated that she did not have
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insurance so she did not wish to undergo the MRI. Id.
Green saw Ms. Strickland on October 14, 2013, with complaints of bilateral shoulder pain
that was aggravated by any movements of the arms and by turning her head. (Tr. 449.) Green
reported that she has to leave work early at times because the pain worsens with activity. Id. She
reported that the cortisone injection did not help. Id. Upon examination, Ms. Strickland noted
bilateral shoulder tenderness and moderately reduced range of motion. (Tr. 450.) Ms.
Strickland stopped Green’s medications and started her on Naproxen3 and Flexeril.4 (Tr. 451.)
She indicated she would refer Green to another orthopedist when Green had insurance, as Dr.
Williams’ office had closed. Id.
The ALJ concluded that the record reveals that Green’s surgery was generally successful in
relieving her symptoms. (Tr. 22.) The ALJ stated that the records indicate Green typically had
full range of motion in both arms and she reported significant improvement in her condition to her
physical therapist. Id. The ALJ noted that there are no opinions from Green’s treating or
examining physicians indicating that she is disabled or that she has greater limitations than those
found by the ALJ. (Tr. 23.)
The ALJ next found that Green’s subjective allegations were not entirely credible. (Tr.
21.) Green contends that the ALJ made several errors in assessing her credibility. “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). When evaluating evidence
Naproxen is a nonsteroidal anti-inflammatory drug indicated for the relief of pain and swelling.
See WebMD, http://www.webmd.com/drugs (last visited August 18, 2016).
Flexeril is indicated for the treatment of muscle spasms. See WebMD,
http://www.webmd.com/drugs (last visited August 18, 2016).
Page 13 of 19
of pain, the ALJ must consider:
(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.
Baker v. Sec’y of Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992); Polaski, 739 F.2d at
The absence of objective medical evidence is just one factor to be considered in evaluating
the plaintiff’s credibility. See id. The ALJ must also consider the plaintiff’s prior work record,
observations by third parties and treating and examining doctors, as well as the plaintiff’s
appearance and demeanor at the hearing. See Polaski, 739 F.2d at 1322; Cruse, 867 F.2d at 1186.
The ALJ must make express credibility determinations and set forth the inconsistencies in the
record which cause him or her to reject the plaintiff’s complaints. See Guilliams, 393 F.3d at 801;
Masterson, 363 F.3d at 738; Lewis v. Barnhart, 353 F.3d 642, 647 (8th Cir. 2003); Hall v. Chater,
62 F.3d 220, 223 (8th Cir. 1995). It is not enough that the record contains inconsistencies; the
ALJ must specifically demonstrate that he or she considered all of the evidence. Robinson v.
Sullivan, 956 F.2d 836, 841 (8th Cir. 1992); Butler v. Sec’y of Health & Human Servs., 850 F.2d
425, 429 (8th Cir. 1988). The ALJ, however, “need not explicitly discuss each Polaski factor.”
Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir. 2004). See also Steed, 524 F.3d at 876
(citing Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000)). The ALJ need only acknowledge and
consider those factors. See id. Although credibility determinations are primarily for the ALJ
and not the court, the ALJ’s credibility assessment must be based on substantial evidence. See
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Rautio v. Bowen, 862 F.2d 176, 179 (8th Cir. 1988); Millbrook v. Heckler, 780 F.2d 1371, 1374
(8th Cir. 1985).
The ALJ first stated that Green “reported not working since the alleged onset date, but
subsequent information revealed that this is not true.” (Tr. 21.) The ALJ noted that Green
returned to work in July 2012 and worked until December 2013, when she alleged her condition
caused her to stop working. Id. The ALJ found “the fact that the claimant provided inaccurate
information as to her working, on a matter so integral to determining disability, suggests that much
of what the claimant has alleged may be similarly unreliable.” (Tr. 21-22.)
Green notes that the ALJ did not provide a citation as to where in the record she stated
anything untrue, and denies ever making such a statement. The record reveals that Green testified
that she worked until December of 2013. (Tr. 35.) Green further testified that she worked
part-time after her shoulder surgeries, decreasing from forty hours a week to only ten hours a
week; she was only able to lift five pounds, and other employees helped her lift items weighing
over five pounds; and she was ultimately unable to work even ten hours a week due to her shoulder
pain. (Tr. 38-40.)
Defendant states that she “concedes that Plaintiff was forthright about her part-time work
activity subsequent to her alleged onset date.” (Doc. 13 at 8.) Defendant argues that the ALJ’s
misstatement was harmless error given that the ALJ cited other factors supporting her credibility
analysis. The ALJ characterized Green’s reported work history as an issue “so integral to
determining disability.” (Tr. 22.) She indicated that Green’s alleged misstatement about her
work history was a factor that weighed heavily against her in assessing her credibility. Given the
emphasis placed on this factor by the ALJ, the Court would be reluctant to find the ALJ’s
erroneous finding on this issue harmless. As will be discussed below, the ALJ made additional
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errors in this case. The Court finds that the ALJ’s errors, in combination, were not harmless.
Green next argues that the ALJ erred in failing to consider the third party statements of
Green’s co-worker and supervisor. Jessica Nave, Kitchen Manager at The Daily Bread, stated
that she had worked with Green for three years, during which she witnessed a decline from Green
working at a “very efficient pace,” to Green depending on Ms. Nave for help in getting items off
the shelves and cutting vegetables. (Tr. 229.) Ms. Nave stated that it was obvious to her that
Green was in pain, and that she is now “unable to perform her job duties.” Id. Ms. Nave stated
that, after four hours of working, Green “walks around the work place with her shoulders hunched
and is unable to work.” Id.
Mary Rudy also completed a statement, in which she indicated that she had worked with
Green for two-and-a-half years, and that Green “has not been able to do her job without showing a
lot of pain since before her surgery.” (Tr. 230.) Ms. Rudy stated that Green cannot “lift her arms
to reach things over her head,” and that “[e]veryone at work helps her reach objects and carries
heavy things for her so she can complete her work.” Id.
The ALJ did not discuss the statements of Ms. Nave or Ms. Rudy. Defendant
acknowledges that the ALJ did not address these statements, but argues that this error was
harmless in light of the fact that Green’s surgeon released her to work, and Dr. Williams found she
had full range of motion of her shoulders.
The Social Security regulations, which are binding on the ALJ, require the ALJ to identify
pertinent information from medical and non-medical reports and to “carefully consider any other
information you may submit about your symptoms,” including statements “other persons provide
about your pain or other symptoms.” 20 C.F.R. § 404.1529(c)(3); Buckner, 646 F.3d at 559.
The regulations do not define “carefully consider.” Id. However, the ALJ must provide some
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evidence that she was at least aware of the testimony or opinion at issue. Although remand is not
always required where an ALJ fails to explain or discuss why evidence from a lay person was
rejected, in cases where remand was not ordered, the court found at the very least that the ALJ
addressed or mentioned the third-party testimony. Robinson v. Sullivan, 956 F.2d 836, 841 (8th
Cir. 1992) (noting that “it is clear that the ALJ specifically addressed [the wife’s] testimony and
found it not credible”); Smith v. Heckler, 735 F.2d 312, 317 (8th Cir. 1984) (“If the ALJ is to reject
such [third-party] testimony, it must be specifically discussed and credibility determinations
Here, the decision does not specify whether the ALJ considered the third party statements
from Green’s co-workers. This evidence was relevant in that it corroborated Green’s allegations
that she was unable to perform her past work, and it contradicted the ALJ’s conclusion that Green
was capable of frequently reaching overhead. The ALJ, therefore, erred in failing to address these
The other factors that the ALJ found detracted from Green’s credibility were: (1) Green’s
demeanor at the hearing; and (2) the fact that Green filed a workers’ compensation claim in
October 2011 and received a settlement in November 2013. (Tr. 22.) These are appropriate
factors for the ALJ to consider in evaluating Green’s credibility. See Steed v. Astrue, 524 F.3d
872, 876 (8th Cir. 2008) (“an ALJ’s personal observations of the claimant’s demeanor during the
hearing is completely proper in making credibility determinations”); Renstrom v. Astrue, 680 F.3d
1057, 1067 (8th Cir. 2012) (ALJ may consider that claimant had a disincentive to work due to
workers’ compensation litigation).
Although the ALJ considered some proper factors in assessing Green’s credibility, the
ALJ’s erroneous finding that Green made inconsistent statements regarding work activity
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combined with her failure to discuss the third party statements from Green’s co-workers
undermines the ALJ’s ultimate conclusion that Green’s subjective allegations are not credible.
See generally Baumgarten v. Chater, 75 F.3d 366 (8th Cir. 1996) (several alleged inconsistencies
relied upon by ALJ not supported by the record, which undermines the ALJ’s “ultimate conclusion
that Baumgarten’s pain is less severe than she claims”).
Green’s complaints of shoulder pain are well documented in the medical records, as she
complained of pain at every visit with medical professionals. Green’s examining medical
professionals also noted limitation of overhead motion on some visits, prescribed pain medication,
and administered cortisone injections. Abnormalities were noted on x-rays of the shoulders,
including a bone spur interfering with her right shoulder, and widening of the joint space and
arthritis in both shoulders. (Tr. 445.) The ALJ emphasized the fact that Dr. Williams found
Green had full range of motion of the shoulders. Dr. Williams did not, however, indicate that he
doubted Green’s complaints of shoulder pain. Rather, he diagnosed Green with bursitis and
osteoarthritis of the shoulders, administered cortisone injections, and ordered an MRI. Based on
this evidence, it is doubtful that Green is capable of frequent overhead reaching. The ALJ then
performed a faulty credibility analysis to find that Green’s subjective complaints of pain were not
credible. The ALJ’s RFC determination is not, therefore, supported by substantial evidence.
Green also argues that the ALJ erred at steps four and five of the sequential evaluation.
Defendant concedes that the ALJ erred in finding that Green could perform her past work as a
retail sales clerk at step four because Green did not perform this work at the substantial gainful
activity level. (Doc. 13 at 10.) Green contends that the ALJ also erred at step five in failing to
identify or resolve the overhead reaching conflicts between the vocational expert testimony and
the Dictionary of Occupational Titles. Because the Court has found that the ALJ’s RFC
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determination is not supported by substantial evidence, the ALJ’s step five determination, based
on this erroneous RFC, is similarly not supported by substantial evidence.
For the reasons discussed above, the Commissioner’s decision is not based upon
substantial evidence on the record as a whole and the cause is therefore remanded to the
Commissioner for further consideration in accordance with this Memorandum and Order. Upon
remand, the ALJ shall properly assess Green’s credibility, consider the third party statements, and
formulate a new RFC based on the record as a whole, obtaining additional medical evidence
addressing Green’s ability to reach overhead, if necessary.
/s/ Abbie Crites-Leoni
UNITED STATES MAGISTRATE JUDGE
Dated this 27th day of September, 2016.
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