Meyer v. Colvin
MEMORANDUM OPINION: IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is REVERSED and that this case is REMANDED under 42 U.S.C. § 1383(c)(3) and Sentence Four of 42 U.S.C. § 405(g) for reconsideration and further proceedings consistent with this opinion. Signed by Magistrate Judge Shirley Padmore Mensah on 1/10/2018. (CAR)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NANCY A. BERRYHILL, 1
Acting Commissioner of Social Security,
Case No. 4:16-CV-1427-SPM
This is an action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of the final
decision of Defendant Nancy A. Berryhill, the Acting Commissioner of Social Security, denying
the application of Plaintiff David Meyer (“Plaintiff”) for Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq., and for Supplemental Security
Income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381, et seq. (the “Act”).
The parties consented to the jurisdiction of the undersigned magistrate judge pursuant to 28 U.S.C.
§ 636(c). (Doc. 10). Because I find the decision denying benefits was not supported by substantial
evidence, I will reverse the Commissioner’s denial of Plaintiff’s application and remand the case
for further proceedings.
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d)
of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to be taken
to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42
U.S.C. § 405(g).
On October 7, 2013, Plaintiff applied for DIB and SSI, alleging that he had been unable to
work since September 1, 2007. (Tr. 158-165, 166-71). His applications were initially denied. (Tr.
82-90). On January 14, 2014, Plaintiff filed a Request for Hearing by Administrative Law Judge
(ALJ) (Tr. 93-94). On May 21, 2015, after a hearing, the ALJ found Plaintiff was not disabled
under the Act. (Tr. 17-34). On June 12, 2015, Plaintiff filed a Request for Review of Hearing
Decision with the Social Security Administration’s Appeals Council. (Tr. 14-16). On July 7, 1016,
the Appeals Council denied his request for review. (Tr. 1-6). Plaintiff has exhausted all
administrative remedies, and the decision of the ALJ stands as the final decision of the
Commissioner of the Social Security Administration.
The facts related to the issues raised by Plaintiff will be addressed as needed in the
STANDARD FOR DETERMINING DISABILITY UNDER THE ACT
To be eligible for benefits under the Social Security Act, a claimant must prove he or she
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 as disabled
a person who is unable “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C.
§§ 423(d)(1)(A); 1382c(a)(3)(A); see also Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010). The
impairment must be “of such severity that he 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 the national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he
would be hired if he applied for work.” 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B).
To determine whether a claimant is disabled, the Commissioner engages in a five-step
evaluation process. 20 C.F.R. §§ 404.1520(a), 416.920(a); see also McCoy v. Astrue, 648 F.3d
605, 611 (8th Cir. 2011) (discussing the five-step process). At Step One, the Commissioner
determines whether the claimant is currently engaging in “substantial gainful activity”; if so, then
he is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i); McCoy, 648 F.3d at 611. At
Step Two, the Commissioner determines whether the claimant has a severe impairment, which is
“any impairment or combination of impairments which significantly limits [the claimant’s]
physical or mental ability to do basic work activities”; if the claimant does not have a severe
impairment, he is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(ii), 404.1520(c), 416.920(a)(4)(ii),
416.920(c); McCoy, 648 F.3d at 611. At Step Three, the Commissioner evaluates whether the
claimant’s impairment meets or equals one of the impairments listed in 20 C.F.R. Part 404, Subpart
P, Appendix 1 (the “listings”). 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii); McCoy, 648
F.3d at 611. If the claimant has such an impairment, the Commissioner will find the claimant
disabled; if not, the Commissioner proceeds with the rest of the five-step process. 20 C.F.R. §§
404.1520(d), 416.920(d); McCoy, 648 F.3d at 611.
Prior to Step Four, the Commissioner must assess the claimant’s “residual functional
capacity” (“RFC”), which is “the most a claimant can do despite [his or her] limitations.” Moore
v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009) (citing 20 C.F.R. § 404.1545(a)(1)); see also 20 C.F.R.
§§ 404.1520(e), 416.920(e). At Step Four, the Commissioner determines whether the claimant can
return to his past relevant work, by comparing the claimant’s RFC with the physical and mental
demands of the claimant’s past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 404.1520(f),
416.920(a)(4)(iv), 416.920(f); McCoy, 648 F.3d at 611. If the claimant can perform his past
relevant work, he is not disabled; if the claimant cannot, the analysis proceeds to the next step. Id.
At Step Five, the Commissioner considers the claimant’s RFC, age, education, and work
experience to determine whether the claimant can make an adjustment to other work in the national
economy; if the claimant cannot make an adjustment to other work, the claimant will be found
disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v); McCoy, 648 F.3d at 611.
Through Step Four, the burden remains with the claimant to prove that he is disabled.
Moore, 572 F.3d at 523. At Step Five, the burden shifts to the Commissioner to establish that,
given the claimant’s RFC, age, education, and work experience, there are a significant number of
other jobs in the national economy that the claimant can perform. Id.; Brock v. Astrue, 674 F.3d
1062, 1064 (8th Cir. 2012).
THE ALJ’S DECISION
Applying the foregoing five-step analysis, the ALJ here found that Plaintiff has not
engaged in substantial gainful activity since September 1, 2007, the alleged onset date; that
Plaintiff has the severe impairments of degenerative disc disease of the lumbar spine, hypertension,
diabetes mellitus, and depression; and that Plaintiff 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. § 404, Subpart P, Appendix 1 (Tr. 22-23). The ALJ found that Plaintiff has the RFC to
perform light work as defined in 20 C.F.R. § 404.1567(b) and § 416.967(b) except that he can
occasionally stoop, kneel, crouch, and crawl, with no work around hazards such as unprotected
heights or dangerous machinery and no jobs requiring good depth perception or binocular vision
such as small parts assembly, and is limited to simple, routine tasks with only occasional changes
in a routine work setting. (Tr. 24). At Step Four, the ALJ found that Plaintiff was unable to perform
any of his past relevant work. (Tr. 28). At Step Five, relying on the testimony of a vocational
expert, the ALJ found that there are jobs that exist in significant numbers in the national economy
that Plaintiff can perform, including mail clerk (Dictionary of Occupational Titles (“DOT”) No.
209.687-026), merchandise marker (DOT No. 209.587-034), and garment sorter (DOT No.
222.687-014). (Tr. 29). The ALJ concluded that Plaintiff had not been under a disability, as defined
in the Act, from September 1, 2007, through the date of his decision. (Tr. 30).
A. Standard for Judicial Review
The decision of the Commissioner must be affirmed if it complies with the relevant legal
requirements and is supported by substantial evidence in the record as a whole. See 42 U.S.C.
§§ 405(g); 1383(c)(3); Richardson v. Perales, 402 U.S. 389, 401 (1971); Pate-Fires v. Astrue, 564
F.3d 935, 942 (8th Cir. 2009); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002). “Substantial
evidence ‘is less than a preponderance, but enough that a reasonable mind might accept as adequate
to support a conclusion.’” Renstrom v. Astrue, 680 F.3d 1057, 1063 (8th Cir. 2012) (quoting
Moore, 572 F.3d at 522). In determining whether substantial evidence supports the
Commissioner’s decision, the court considers both evidence that supports that decision and
evidence that detracts from that decision. Id. However, the court “‘do[es] not reweigh the evidence
presented to the ALJ, and [it] defer[s] to the ALJ’s determinations regarding the credibility of
testimony, as long as those determinations are supported by good reasons and substantial
evidence.’” Id. at 1064 (quoting Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006)). “If,
after reviewing the record, the court finds it is possible to draw two inconsistent positions from the
evidence and one of those positions represents the ALJ’s findings, the court must affirm the ALJ’s
decision.” Partee v. Astrue, 638 F.3d 860, 863 (8th Cir. 2011) (quoting Goff v. Barnhart, 421 F.3d
785, 789 (8th Cir. 2005)).
B. Remand is Required for Further Evaluation of Plaintiff’s Reaching Ability
Plaintiff argues that remand is required because the ALJ failed, without explanation, to
include in the RFC (and the hypothetical question posed to the vocational expert) the limitation to
only “occasional” reaching that was found in the opinion of consultative examiner Robert Poetz,
D.O. As both parties acknowledge, the decision not to include this limitation in the RFC is
significant, because each of the three jobs the ALJ identified that Plaintiff was capable of doing
requires frequent reaching. See Pl.’s Br. at 11-12; Def.’s Br. At 7.
On August 19, 2011 Dr. Poetz examined Plaintiff and reviewed Plaintiff’s medical records.
(Tr. 321-26). He noted Plaintiff’s complaint that his “left shoulder pops,” which caused pain. (Tr.
321). On examination, Dr. Poetz found that Plaintiff “exhibits an audible pop in his left shoulder
with range of motion.” (Tr. 324). Dr. Poetz’s diagnoses included left shoulder sprain/contusion.
(Tr. 324). On a work restriction evaluation form, Dr. Poetz made several findings about Plaintiff’s
physical abilities, including findings that Plaintiff could only occasionally lift up to 20 pounds
overhead and could never lift more; could only occasionally carry over 30 pounds and could never
carry more; and could only occasionally bend, climb, and reach. (Tr. 327-28).
In his decision, the ALJ stated that Dr. Poetz’s opinion “is given significant weight because
he examined the claimant and his opinion is consistent with his examination findings.” (Tr. 27).
In the RFC assessment, the ALJ incorporated several of the limitations in Dr. Poetz’s opinion, but
he did not include any limitations on reaching. The ALJ did not explain in his decision why he
discounted the reaching limitation in Dr. Poetz’s opinion, nor did he specifically discuss how other
evidence led him to conclude that Plaintiff had no reaching limitations. 2 Plaintiff argues that
remand is required because the ALJ gave significant weight to Dr. Poetz’s opinion, yet he neither
included the limitation on reaching in his opinion nor explained why he was not including that
limitation. The Court agrees.
“The ALJ must assess a claimant’s RFC based on all relevant, credible evidence in the
record, ‘including the medical records, observations of treating physicians and others, and an
individual’s own description of his limitations.’” Tucker v. Barnhart, 363 F.3d 781, 783 (8th Cir.
2004) (quoting McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000)). The ALJ is “not required
to rely entirely on a particular physician’s opinion or choose between the opinions of any of the
claimant’s physicians” in determining a claimant’s RFC.” Martise v. Astrue, 641 F.3d 909, 927
(8th Cir.2011) (quotation marks omitted). However, “[i]f the RFC assessment conflicts with an
opinion from a medical source, the [ALJ] must explain why the opinion was not adopted.” Social
Security Ruling 96-8p, 1996 WL 374184, at *7 (July 2, 1996).
Courts often find that remand is required where an ALJ gives significant weight to a
consultative examiner’s opinion, yet does not include some of the limitations in that opinion—
particularly where there is evidence to support the omitted limitations and it is unclear from the
record why the ALJ did not include the omitted limitations. See, e.g., Murphy v. Colvin, No. 1:15CV-00131-AGF, 2016 WL 4158868, at *7 (E.D. Mo. Aug. 5, 2016) (remanding where the ALJ
stated that he “accepted” the opinion of a consulting physician because it was “grounded in the
evidence of record,” yet did not give any reason for disregarding parts of that opinion; noting that
the ALJ’s error could not be overlooked given that there appeared to be ample evidence in the
Notably, the ALJ did offer specific reasons for discounting one of Dr. Poetz’s opinions—an
opinion regarding Plaintiff’s loss of vision in the right eye. (Tr. 27).
record to support the physician’s opinion); Crews-Cine v. Colvin, No. 4:13-CV-00732-NKL, 2014
WL 2828894, at *2 (W.D. Mo. June 23, 2014) (remanding where the ALJ gave “great weight” to
the opinion of a consultative examiner but then “offer[ed] no explanation as to why only certain
limitations are incorporated in the RFC while others are not”); Reynolds v. Astrue, No. 1:06-CV64-CDP-DDN, 2007 WL 5100461, at *4 (E.D. Mo. Aug. 7, 2007) (finding remand required where
the ALJ found a consultative physician’s opinion “well rationalized,” but did not include certain
limitations from the physician’s opinion in Plaintiff’s RFC; noting that no other medical evidence
in the record showed that Plaintiff did not have those limitations). Cf. McCadney v. Astrue, 519
F.3d 764, 767 (8th Cir. 2008) (finding substantial evidence did not support the ALJ’s decision and
remanding for clarification where the court could not determine from the record whether the ALJ
discounted the opinion of the consultative examiner, or if he had done so, why he had done so).
Here, as in the above cases, the ALJ gave significant weight to Dr. Poetz’s opinion, yet did
not offer any reason for not including in the RFC assessment the reaching limitation in Dr. Poetz’s
opinion. Moreover, as in the above cases, it is not apparent why he did not include that limitation,
in light of evidence in the record that appears to support it. As noted above, Dr. Poetz’s opinion
regarding Plaintiff’s reaching abilities was supported by Dr. Poetz’s own objective observation
that Plaintiff “exhibits an audible pop in his left shoulder with range of motion.” (Tr. 324).
Moreover, the only other physician to offer an opinion about Plaintiff’s reaching abilities, Dr.
Stephen Williamson, M.D., also opined that Plaintiff could “reach . . . occasionally limited by
upper extremity weakness.” (Tr. 259). On examination, Dr. Williamson also noted some lowerthan-normal muscle strength in Plaintiff’s upper extremities and back that appear to support that
limitation. (Tr. 258). Evidence submitted to the Appeals Council is also consistent with a finding
that Plaintiff had limited reaching abilities. 3 On June 16, 2015, Plaintiff returned to Dr. Poetz for
further evaluation. (Tr. 336). On examination, Dr. Poetz found “crepitus exhibited at the left
shoulder with range of motion,” as well as some lower-than-normal muscle strength in the left
shoulder. (Tr. 339). Dr. Poetz also found significant reductions in Plaintiff’s range of motion in
the left upper extremities, in abduction, flexion, and extension. (Tr. 339). Dr. Poetz again opined
that Plaintiff would be able to reach only occasionally. (Tr. 344).
In light of the facts described above, it is unclear why the ALJ did not include a limitation
to occasional reaching in the RFC, and thus the Court cannot say that substantial evidence supports
the RFC assessment in this case. On remand, the ALJ should either formulate an RFC consistent
with Dr. Poetz’s opinion regarding Plaintiff’s reaching limitations or should explain why he is not
including such a limitation in the RFC.
For the reasons set forth above, the Court finds that the decision of the Commissioner is
not supported by substantial evidence. Accordingly,
Where additional evidence was presented to the Appeals Council, the Court must determine
whether the record as a whole, including the new evidence, supports the ALJ’s determination.
McDade v. Astrue, 720 F.3d 994, 1000 (8th Cir. 2013); Perks v. Astrue, 687 F.3d 1086, 1093 (8th
Cir.2012); Cunningham v. Apfel, 222 F.3d 496, 500 (8th Cir. 2000). The Eighth Circuit has noted
that this requires that the Court “must speculate to some extent on how the administrative law
judge would have weighed the newly submitted reports if they had been available for the original
hearing,” which is “a peculiar task for a reviewing court.” Riley v. Shalala, 18 F.3d 619, 622 (8th
IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is
REVERSED and that this case is REMANDED under 42 U.S.C. § 1383(c)(3) and Sentence Four
of 42 U.S.C. § 405(g) for reconsideration and further proceedings consistent with this opinion.
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE
Dated this 10th day of January, 2018.
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