Gray v. Berryhill
MEMORANDUM AND ORDER...IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED and REMANDED consistent with the above. A separate Judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 3/8/2018. (NEP)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NANCY A. BERRYHILL, Acting
Commissioner of Social Security, 1
Case No. 4:17CV00406 AGF
MEMORANDUM AND ORDER
This action is before this Court for judicial review of the final decision of the
Commissioner of Social Security finding that Plaintiff Sonya Gray was not disabled, and
thus not entitled to Supplemental Security Income (“SSI”) under Title XVI of the Social
Security Act, 42 U.S.C. §§ 1381-1383f. For the reasons set forth below, the decision of
the Commissioner will be reversed and the case remanded for further consideration.
Plaintiff, who was born on August 27, 1962, filed her application for SSI benefits on
August 9, 2013 (at the age of 51), alleging disability as of that date due primarily to
depression, high blood pressure, arthritis, and lower back pain. Plaintiff’s application was
denied at the initial administrative level, and pursuant to her request, a hearing was held
before an Administrative Law Judge (“ALJ”) on September 9, 2015. After the hearing,
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to
Rule 25(d) of the Federal Rules of Civil Procedure, she is substituted for Acting
Commissioner Carolyn W. Colvin as the Defendant in this suit.
the ALJ ordered an orthopedic consultative examination, which was conducted by Stanley
London, M.D. (the “consulting examiner”), on October 13, 2015.
By decision dated January 22, 2016, the ALJ found that Plaintiff had the residual
functional capacity (“RFC”) to perform the full range of light work, and based on the
Commissioner’s Medical-Vocational Guidelines (“Guidelines”), 20 C.F.R. pt. 404, subpt.
P, app. 2, § 202.00, rules 202.13-.15, was not disabled under the Social Security Act.
Plaintiff’s request for review by the Appeals Council of the Social Security Administration
was denied on December 5, 2016. Plaintiff has thus exhausted all administrative remedies
and the ALJ’s decision stands as the final agency action now under review.
Plaintiff argues that the ALJ’s RFC determination is not supported by substantial
evidence in the record as a whole. More specifically, Plaintiff argues that the ALJ erred in
not accounting for Plaintiff’s nonexertional limitations (such as her limited capacity to
stoop, bend, and squat) found by the two medical opinions – the December 2, 2013 opinion
of non-examining medical consultant Nancy Ceasar, M.D., and, more significantly, the
consulting examiner’s opinion to which the ALJ assigned “great weight.” Plaintiff further
argues that by not requesting a Medical Source Statement from the consulting examiner,
the ALJ failed in her responsibility to develop a full and fair record. Plaintiff maintains
that these errors were not harmless because they resulted in the ALJ improperly relying on
the Guidelines to find that Plaintiff was not disabled. Plaintiff seeks remand for a new
hearing and decision based upon a completed record.
Defendant argues that the ALJ properly weighed the opinion evidence in the record;
that the ALJ’s decision is supported by substantial evidence, including Plaintiff’s daily
activities, work history, treatment notes, and “improvement”; that the ALJ fully and fairly
developed the record; and that the ALJ properly relied on the Guidelines to determine that
Plaintiff was not disabled.
Agency Records, Medical Records, and ALJ’s Decision
The Court adopts the facts set forth in Plaintiff’s Statement in Uncontroverted Facts
(ECF No. 16-1), with the exception of ¶ 19 which Defendant disputes as a legal conclusion,
and the facts set forth in Defendant’s Statement of Additional Material Facts (ECF No.
19-2), accepting Plaintiff’s gloss that these facts describe Plaintiff’s condition during the
relevant time period of 2012 through 2016 and not to the present. Together, these facts
provide a fair description of the record before the Court. Specific facts will be discussed
as needed to address the parties’ arguments.
Standard of Review and Statutory Framework
In reviewing the denial of Social Security disability benefits, a court must review
the entire administrative record to determine whether the ALJ’s findings are supported by
substantial evidence on the record as a whole. Johnson v. Astrue, 628 F.3d 991, 992 (8th
Cir. 2011). The court “may not reverse . . . merely because substantial evidence would
support a contrary outcome. Substantial evidence is that which a reasonable mind might
accept as adequate to support a conclusion.” Id. (citations omitted). A reviewing court
“must consider evidence that both supports and detracts from the ALJ’s decision. If, after
review, [the court finds] it possible to draw two inconsistent positions from the evidence
and one of those positions represents the Commissioner’s findings, [the court] must affirm
the decision of the Commissioner.” Chaney v. Colvin, 812 F.3d 672, 676 (8th Cir. 2016).
To be entitled to benefits, a claimant must demonstrate an inability to engage in
substantial gainful activity which exists in the national economy, by reason of a medically
determinable impairment which has lasted or can be expected to last for not less than 12
months. 42 U.S.C. § 423(d)(1)(A). The Commissioner has promulgated regulations,
found at 20 C.F.R. § 404.1520, establishing a five-step sequential evaluation process to
determine disability. The Commissioner begins by deciding whether the claimant is
engaged in substantial gainful activity. If not, the Commissioner decides whether the
claimant has a severe impairment or combination of impairments. If an impairment or
combination of impairments is severe and meets the duration requirement, the
Commissioner determines at step three whether the claimant’s impairment meets or is
equal to one of the deemed-disabling impairments listed in the Commissioner’s
regulations. If not, the Commissioner asks at step four whether the claimant has the RFC
to perform her past relevant work.
“An ALJ determines a claimant’s RFC based on all the relevant evidence,
including the medical records, observations of treating physicians and others, and
an individual’s own description of her limitations.” Combs v. Berryhill, 878 F.3d
642, 646 (8th Cir. 2017) (citation omitted). “Because a claimant’s RFC is a
medical question, an ALJ’s assessment of it must be supported by some medical
evidence of the claimant’s ability to function in the workplace. The ALJ may not
simply draw his own inferences about plaintiff’s functional ability from medical
If the claimant cannot perform her past relevant work, the burden of proof
shifts at step five to the Commissioner to demonstrate that the claimant retains the
RFC to perform work that is available in the national economy and that is consistent
with the claimant’s vocational factors – age, education, and work experience.
Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010). When a claimant can
perform the full range of work in a particular exertional category of work listed in
the regulations (medium, light, and sedentary), the ALJ can meet the step-five
burden by relying on the Guidelines, which are fact-based generalizations about the
availability of jobs for people of varying ages, educational backgrounds, and
previous work experience. Baker v. Barnhart, 457 F.3d 882, 894 (8th Cir. 2006).
When a claimant’s nonexertional impairments “significantly limit” the
claimant’s RFC to perform the full range of Guideline-listed activities, the ALJ may
not rely on the Guidelines, but must produce testimony by a Vocational Expert, or
other similar evidence, to meet the step-five burden. Id. A “non-exertional
limitation” is a limitation or restriction which affect a claimant’s “ability to meet the
demands of jobs other than the strength demands.” 20 C.F.R. § 404.1569a(a).
Non-exertional limitations include difficulty functioning due to pain, and difficulty
performing the manipulative or postural functions of some work such as reaching,
handling, stooping, climbing, crawling, or crouching. Id. § 404.1569a(c)(1). “T]he
ALJ bears a responsibility to develop the record fairly and fully, independent of the
claimant’s burden to press his case.” Combs, 878 F.3d at 647-48 (quoting Vossen
v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010)).
The ALJ’s RFC Determination
As noted above, the ALJ determined that Plaintiff retained the RFC to perform the
full range of light work. The Commissioner’s regulations define “light work” as work
that involves lifting no more than 20 pounds at a time with frequent lifting or carrying of up
to ten pounds, and that might require a good deal of walking or standing, sitting most of the
time, and some pushing and pulling of arm or leg controls. 20 C.F.R. § 404.1567(b).
Social Security Ruling (“SSR”) 83-10, 1983 WL 31251, at *6, elaborates that the full range
of light work requires standing or walking, off and on, for a total of approximately six
hours of an eight hour work day, while sitting may occur intermittently during the
remaining time; that the lifting requirement for the majority of light jobs can be
accomplished with occasional, rather than frequent, stooping; and that many unskilled light
jobs are performed primarily in one location, with the ability to stand being more critical
than the ability to walk. SSR 83-10, 1983 WL 31251, at *6 (1983).
As noted above, the consulting examiner conducted an orthopedic consultative
examination on October 13, 2015. His report (Tr. 678-85) noted that Plaintiff, who was
62” tall and weighed 231 pounds, was a “somewhat obese individual who appears in pain
with any kind of movement.” He reported that Plaintiff “walks very slowly, limping
because of her knees and her back. She cannot heel walk, she cannot toe walk, she cannot
hop, she cannot squat. Gets off and on the table with a great deal of difficulty.” The
consulting examiner noted that “[s]traight leg lifting is essentially 0 on the right and 15
degrees on the left. She flexes to 40 degrees, can’t extend at all, tilts and turns 20 degrees,
all producing pain all over her body and in her back and in her left side.”
The consulting examiner diagnosed Plaintiff with degenerative joint disease in her
knees and degenerative joint and disc disease in her back. He reported that x-rays of
Plaintiff’s knees showed degenerative changes with joint space narrowing, and x-rays of
Plaintiff’s spine confirmed degenerative joint and disc disease.
In assessing Plaintiff’s
range of motion, the consulting examiner found her restricted in knee flexion-extension,
grip strength with both hands, lumbar spine flexion-extension, lumbar lateral flexion, and
The ALJ gave “great weight” to the consulting examiner’s impressions and
findings, concluding that they were “generally consistent with the objective studies.” Tr.
20-21. But the ALJ did not ask the consulting examiner to complete a Medical Source
Statement, and accordingly, the record does not contain the consulting examiner’s opinions
as to Plaintiff’s capacity for standing, walking, lifting, stooping, etc.
As Plaintiff argues, “[b]ecause a claimant’s RFC is a medical question, an ALJ’s
assessment of it must be supported by some medical evidence of the claimant’s ability to
function in the workplace.” Combs, 878 F.3d at 646. However, “there is no requirement
that an RFC finding be supported by a specific medical opinion.” Hensley v. Colvin, 829
F.3d 926, 932 (8th Cir. 2016). Here, the ALJ ordered a consultative orthopedic
examination and believed that the consulting examiner’s report based on that examination
was entitled to “great weight.” But the ALJ did not explain, not does the Court perceive,
how that report supports a conclusion that Plaintiff can perform the full range of light work.
Indeed, the report suggests the opposite.
The Court believes that the case should be remanded for further consideration.
On remand, the Commissioner might obtain a Medical Source Statement and/or might
assess an RFC that includes limitations based on non-exertional impairments and obtain
the testimony of a vocational expert on whether there exist jobs in the economy a person
with such an RFC could perform. Or the ALJ might explain how, by giving the consulting
examiner’s report “great weight,” a conclusion that Plaintiff can perform the full range of
light work is supported by the record.
IT IS HEREBY ORDERED that the decision of the Commissioner is
REVERSED and REMANDED consistent with the above.
A separate Judgment shall accompany this Memorandum and Order.
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated on this 8th day of March, 2018
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