Akins v. Saul

Filing 31

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is REVERSED, and 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 pro ceedings consistent with this opinion. IT IS FURTHER ORDERED that the Clerk of Court shall substitute Kilolo Kijakazi for Andrew M. Saul in the court record of this case. Andrew M. Saul (Commissioner of Social Security Administration) terminated. Signed by Magistrate Judge Stephen R. Welby on 1/10/2022. (JMP)

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
TONYA R. AKINS,
Plaintiff(s),
vs.
ANDREW M. SAUL, 1
Commissioner of Social Security
Administration,
Defendant(s).

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Case No. 4:20-CV-714 SRW

MEMORANDUM AND ORDER
This matter is before the Court on review of an adverse ruling by the Social Security
Administration. The Court has jurisdiction over the subject matter of this action under 42 U.S.C.
§ 405(g). The parties consented to the exercise of authority by the United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c). Plaintiff filed a Brief in Support of the Complaint. ECF
No. 19. Defendant filed a Brief in Support of the Answer. ECF No. 28. The Court has reviewed
the parties’ briefs and the entire administrative record, including the transcripts and medical
evidence. Based on the following, the Court will reverse the Commissioner’s denial of Plaintiff’s
application and remand the case for further proceedings.
I.

Factual and Procedural Background
On May 2, 2016, Plaintiff Tonya R. Akins protectively filed applications for disability

insurance benefits (“DIB”) under Title II, 42 U.S.C. §§ 401, et seq. and supplemental security

At the time this case was filed, Andrew M. Saul was the Acting Commissioner of Social Security. Kilolo Kijakazi
became the Commissioner of Social Security on July 9, 2021. When a public officer ceases to hold office while an
action is pending, the officer’s successor is automatically substituted as a party. Fed. R. Civ. P. 25(d). Later
proceedings should be in the substituted party’s name, and the Court may order substitution at any time. Id. The
Court will order the Clerk of Court to substitute Kilolo Kijakazi for Andrew M. Saul in this matter.

1

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income (SSI) under Title XVI, 42 U.S.C. §§ 1381, et seq. Tr. 125-39. Plaintiff’s application was
denied on initial consideration, and she requested a hearing before an Administrative Law Judge
(“ALJ”). Tr. 59-84.
Plaintiff, without counsel, appeared for a hearing on May 9, 2018. Tr. 24-58. Plaintiff
testified concerning her disability, daily activities, functional limitations, and past work. Id. The
ALJ also heard testimony from vocational expert (“VE”) Barbara Meyers. Tr. 47-56. On
November 5, 2018 the ALJ issued an unfavorable decision finding Plaintiff not disabled. Tr. 822. Plaintiff filed a request for review of the ALJ’s decision with the Appeals Council. On April
22, 2020, the Appeals Council denied Plaintiff’s request for review. Tr. 1-5. Accordingly, the
ALJ’s decision stands as the Commissioner’s final decision.
With regard to Plaintiff’s testimony, medical records, and work history, the Court
accepts the facts as presented in the parties’ respective statements of facts and responses. The
Court will discuss specific facts relevant to the parties’ arguments as needed in the discussion
below.
II.

Legal Standard
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 which has lasted or can be expected to last for a continuous period of not less
than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). A claimant has a disability “only if his
physical or mental impairment or impairments are 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[.]” §
1382c(a)(3)(B).

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The Commissioner follows a five-step sequential process when evaluating whether the
claimant has a disability. 20 C.F.R. § 416.920(a)(1). First, the Commissioner considers the
claimant’s work activity. If the claimant is engaged in substantial gainful activity, 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 . . . which significantly limits
[claimant’s] physical or mental ability to do basic work activities.” Hurd v. Astrue, 621 F.3d 734,
738 (8th Cir. 2010) (quoting 20 C.F.R. § 416.920(c)). “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 v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007); see also
20 C.F.R. §§ 416.920(c), 416.920a(d).
Third, if the claimant has a severe impairment, the Commissioner considers the
impairment’s medical severity. If the impairment meets or equals one of the presumptively
disabling impairments listed in the regulations, the claimant is considered disabled, regardless of
age, education, and work experience. 20 C.F.R. §§ 416.920(a)(4)(iii), (d).
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one of the
presumptively disabling impairments, the Commissioner assesses whether the claimant retains
the “residual functional capacity” (“RFC”) to perform his or her past relevant work. 20 C.F.R. §§
416.920(a)(4)(iv), 416.945(a)(5)(i). An RFC is “defined as the most a claimant can still do
despite his or her physical or mental limitations.” Martise v. Astrue, 641 F.3d 909, 923 (8th Cir.
2011); see also 20 C.F.R. § 416.945(a)(1). While an RFC must be based “on all relevant
evidence, including the medical records, observations of treating physicians and others, and an
individual’s own description of his limitations,” an RFC is nonetheless an “administrative

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assessment”—not a medical assessment—and therefore “it is the responsibility of the ALJ, not a
physician, to determine a claimant’s RFC.” Boyd v. Colvin, 831 F.3d 1015, 1020 (8th Cir. 2016).
Thus, “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). Ultimately, the claimant is
responsible for providing evidence relating to his RFC, and 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). If the
ALJ determines the claimant retains the RFC to perform past relevant work, he or she is not
disabled. 20 C.F.R. § 416.920(a)(4)(iv).
Fifth, if the claimant’s RFC does not allow the claimant to perform past relevant work,
the burden of production to show the claimant maintains the RFC to perform work which exists
in significant numbers in the national economy shifts to the Commissioner. See Brock v. Astrue,
574 F.3d 1062, 1064 (8th Cir. 2012); 20 C.F.R. § 416.920(a)(4)(v). If the claimant can make an
adjustment to other work which exists in significant numbers in the national economy, the
Commissioner finds the claimant not disabled. 20 C.F.R. § 416.920(a)(4)(v). If the claimant
cannot make an adjustment to other work, the Commissioner finds the claimant disabled. Id. At
Step Five, even though the burden of production shifts to the Commissioner, the burden of
persuasion to prove disability remains on the claimant. Hensley, 829 F.3d at 932.
If substantial evidence on the record as a whole supports the Commissioner’s decision,
the Court must affirm the decision. 42 U.S.C. §§ 405(g); 1383(c)(3). Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). “[T]he threshold for such evidentiary

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sufficiency is not high.” Id. Under this test, a court “consider[s] all evidence in the record,
whether it supports or detracts from the ALJ’s decision.” Reece v. Colvin, 834 F.3d 904, 908 (8th
Cir. 2016). The Court “do[es] not reweigh the evidence presented to the ALJ” and will “defer to
the ALJ’s determinations regarding the credibility of testimony, as long as those determinations
are supported by good reasons and substantial evidence.” Id. The ALJ will not be “reverse[d]
merely because substantial evidence also exists in the record that would have supported a
contrary outcome, or because [the court] would have decided the case differently.” KKC ex rel.
Stoner v. Colvin, 818 F.3d 364, 370 (8th Cir. 2016).
III.

The ALJ’s Decision
Applying the foregoing five-step analysis, the ALJ found here that Plaintiff has not

engaged in substantial gainful activity since the alleged onset date of December 1, 2014. Tr. 14.
Plaintiff has the severe impairments of suprasellar tumor with residual of left homonymous
hemianopia, obesity, diabetes, and seizure disorder. Id. Plaintiff did not have an impairment or
combination of impairments which meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. § 404, Subpart P, Appendix 1. Tr. 14-15. The ALJ found Plaintiff had
the following RFC:
[Plaintiff] has the residual functional capacity to perform light work as defined in
20 CFR 404.1567(b) and 416.967(a) except: The [Plaintiff] may occasionally use
ramps and stairs. She may never work at unprotected dangerous heights and around
unprotected dangerous machinery. She is limited to no operation of motor vehicles,
working alone around open bodies of water, or around open flames. The claimant
is limited to occasional stooping, kneeling, crouching, and crawling.
Tr. 15-17. The ALJ found Plaintiff was unable to perform her past relevant work as a punch
press operator or waitress. Tr. 17-18. The ALJ further found Plaintiff was born on October 2,
1968 and was 46 years old, which is defined as a younger individual 18-49, on the alleged
disability onset date, but her age category changed on October 2, 2018 to closely approaching
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advanced age. Tr. 18. The ALJ indicated Plaintiff has at least a high school education and is able
to communicate in English. Id. The ALJ determined Plaintiff could not transfer job skills from
her past prior work. Id. Relying on the testimony of the VE and considering Plaintiff’s age,
education, work experience and RFC, the ALJ found there were jobs existing in significant
numbers in the national economy which the Plaintiff could perform, including representative
occupations such as cashier (Dictionary of Occupational Titles (“DOT”) No. 211.462-010, with
approximately 800,000 positions nationally) and merchandise marker (DOT No. 209.587-034,
with approximately 334,000 positions nationally). Tr. 18-19. The ALJ concluded Plaintiff was
not under a disability from December 1, 2014 through November 5, 2018. Tr. 24.
IV.

Discussion
Plaintiff asserts two arguments in support of remand: (1) the Appeals Council failed to

exhibit post-hearing evidence; and (2) the ALJ failed to fully develop the record by not ordering
an updated consultative examination or seeking additional medical evidence.
A. Appeals Council’s Review of Post-Hearing Medical Evidence
On May 9, 2018, Plaintiff appeared for a hearing before the ALJ without counsel. Tr. 2458. The ALJ offered Plaintiff the option of rescheduling the hearing to give her the opportunity
to obtain counsel, but Plaintiff indicated a desire to proceed. Tr. 27. On November 5, 2018, the
ALJ issued an unfavorable decision finding Plaintiff not disabled. Tr. 8-22.
Plaintiff subsequently obtained counsel and filed a request for review with the Appeals
Council, which included the submission of additional medical evidence. Tr. 122-24. On April 22,
2020, the Appeals Council denied Plaintiff’s request for review. Tr. 1-5. The Appeals Council
addressed the additional medical evidence, in relevant part, as follows:
You submitted records from John C. Murphy Health Center, dated May 18, 2018
to November 19, 2018 (25 pages); and SLU Care Physician Group, dated May 3,
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2018 to September 27, 2018 (115 pages). We find this evidence does not show a
reasonable probability that it would change the outcome of the decision. We did
not exhibit this evidence.
You also submitted records from John C. Murphy Health Center, dated February
21, 2019 to May 5, 2019 (10 pages); and SLU Care Physician Group, dated
March 5, 2019 to June 10, 2019 (118 pages). The Administrative Law Judge
decided your case through November 5, 2018. This additional evidence does not
relate to the period at issue. Therefore, it does not affect the decision about
whether you were disabled beginning on or before November 5, 2018.
If you want us to consider whether you were disabled after November 5, 2018,
you need to apply again.
Tr. 2.
Plaintiff does not take issue with the decision of the Appeals Council to decline
consideration of the records dated after November 5, 2018. Plaintiff challenges the decision of
the Appeals Council to not exhibit the records within the relevant time period. Plaintiff argues,
because “the Appeals Council refused to exhibit 150 pages of new and material evidence, this
Court cannot determine whether the administrative decision is supported by substantial
evidence.” ECF No. 19 at 5.
After Plaintiff asserted the above argument in her Brief in Support of the Complaint, the
Commissioner filed a Supplemental Transcript with the Court, which included the additional
medical evidence Plaintiff submitted to the Appeals Council but was not exhibited. See ECF No.
27. The Commissioner acknowledged in his Brief in Support of the Answer that Plaintiff was
“correct in her assertion that the new evidence submitted to the Appeals Council should have
been included with the administrative record even though the Appeals Council determined that
the new evidence from the relevant period did not provide a reasonable probability that it would
change the outcome of the ALJ’s decision.” ECF No. 28 at 4. However, the Commissioner

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asserts that because the mistake was rectified, remand would not be appropriate. Plaintiff did not
file a Reply Brief.
The Court agrees with Plaintiff that the Appeals Council incorrectly failed to exhibit the
medical evidence dated prior to November 5, 2018. New and material evidence submitted to the
Appeals Council that relates to the period before the date of the ALJ’s decision becomes part of
the administrative record. See Davidson v. Astrue, 501 F.3d 987, 990 (8th Cir. 2007).
Notwithstanding such a requirement, the Commissioner fixed the error by filing a Supplemental
Transcript in this case, which includes the medical evidence submitted to and reviewed by the
Appeals Council. ECF No. 27.
As a result of the Commissioner’s supplemental filing, the Court is now equipped with
the entire record to determine whether the administrative decision was supported by substantial
evidence. The Court, therefore, finds it inappropriate to remand based on Plaintiff’s argument
that this Court would be unable to review the administrative decision. The Court presently has
access to the entire record, including the post-hearing medical evidence, which erroneously was
not exhibited by the Appeals Council. Remand would only be appropriate if substantial evidence
did not support the ALJ’s decision. Bergmann v. Apfel, 207 F.3d 1065, 1068 (8th Cir. 2000) (in
cases where additional evidence was submitted after hearing and considered by the Appeals
Council, the reviewing court’s role is to determine whether the ALJ’s decision is supported by
the record as a whole, which now includes new evidence). Whether the ALJ’s determination was
supported by substantial evidence will be addressed below.
B. The ALJ’s Development of the Record
Plaintiff argues the ALJ erred by failing to fully and fairly develop the record which
resulted in an improper RFC determination that Plaintiff could perform light work with

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limitations. Plaintiff argues the record was not fully developed because the ALJ relied on the
August 16, 2016 opinion of State agency physician, Dr. Kenneth Smith, which was made prior to
her seizure disorder diagnosis and before she gained sixty pounds. Plaintiff also points to the fact
that she turned 50 years old on October 2, 2018, one month before the ALJ issued the decision.
Because she changed age categories during the pendency of her claim from a “younger
individual” to “closely approaching advanced age,” Plaintiff argues Dr. Smith’s RFC opinion
was outdated and the ALJ should have obtained additional medical evidence addressing her
ability to function in the workplace on or around October 2, 2018.
In making the RFC determination, the ALJ first considered Plaintiff’s subjective
complaints resulting from “continued seizures, eye pain, side effects from her diabetes
medicines, pain in her knees, and pain in her heels.” Tr. 16. The ALJ cited to Plaintiff’s hearing
testimony in which she stated that “she can only be on her feet [for] about 15 minutes, taking a
bath makes her dizzy, and her legs get cramped and she must straighten her legs occasionally to
keep them from cramping.” Tr. 16, 43-46. Plaintiff testified she gained 60 to 70 pounds due to
“diabetes medicines and lack of energy” and used a cane “on days that were cold or rainy and
she ha[d] to walk a ways.” Tr. 16, 39-40, 42. The ALJ acknowledged her reports of continued
head tenderness, as well as an inability to prepare meals because she would burn the food and an
inability to do laundry because she could not descend a flight of stairs to her laundry room. Tr.
16, 43-44, 46. The ALJ noted she was able to play video games on her phone and watch
television, which Plaintiff described as her only hobbies. Tr. 16, 44. The ALJ found Plaintiff’s
self-reported symptoms to be inconsistent with the medical evidence. Tr. 16.
The ALJ considered Plaintiff’s history of obesity which predated her alleged onset date,
and noted her weight increased from 250 pounds on October 28, 2015 to 313 pounds on

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December 14, 2017. Tr. 16, 263, 532. Despite her weight gain, the ALJ found the record lacked
persuasive evidence to support a conclusion that her obesity resulted in significantly reduced
respiratory capacity, skin disorders, edema, calluses on her feet, or cardiac-related impairments.
The ALJ noted that none of her treating physicians indicated her obesity caused severe
symptoms or functional limitations. Tr. 16.
The ALJ cited to a January 8, 2015 treatment note from Plaintiff’s neurosurgeon, Dr.
Richard Bucholz, who primarily treated the suprasellar mass located in her head. Tr. 16, 372-73.
During the visit, Plaintiff reported “some new occipital head pain but no other problems.” Tr.
372. Dr. Bucholz observed Plaintiff “to be asymptomatic from this mass” and recommended
“continued conservative management.” Tr. 373. The ALJ noted on January 14, 2016, Plaintiff
reported occasional headaches and decreased field of vision, but by April 15, 2016 she was
complaining of increased symptoms, including progressive fatigue, daily bifrontal headaches,
and worsening vision in her right eye. Tr. 16, 250, 353, 420. Due to these complaints, Plaintiff
underwent a craniotomy and resection on June 10, 2016 to remove the majority of the mass. Tr.
16, 426, 432, 475, 581. On June 30, 2016, Plaintiff reported “jaw twitching,” which caused “her
teeth to chatter occasionally during speech and frequently when eating food.” Tr. 16, 432. An
electroencephalogram was ordered, but it did not reveal any epileptiform activity. Id.
The ALJ considered MRI results from April and November 2017, which showed minimal
or no change in the size of the masses. Tr. 17. The November 2017 report specifically indicated
an “[u]nchanged size of a mildly enhancing suprasellar/hypothalamic mass, most likely
representing residual granulosa cell tumor” and a “[m]inimally increased size of a mass centered
in the right aspect of the sella, which may represent a second granulosa cell tumor or a pituitary
adenoma with internal hemorrhage.” Tr. 17, 497.

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The ALJ cited to the July 28, 2016 treatment notes from Plaintiff’s ophthalmologist, Dr.
Sophia Chung, in which she diagnosed Plaintiff with “a new left homonymous hemianopia
(“LHH”) that [was] incongruous suggesting right optic tract disease” as well as “right IIIrd nerve
paresis.” Tr. 17, 475-76, 601-02. Dr. Chung directed Plaintiff to refrain from driving for six
months. Id. On November 28, 2016, Dr. Chung opined Plaintiff “made complete recovery of her
right IIIrd nerve palsy” and “ha[d] improvement of her LHH although still present.” Tr. 17, 591.
Dr. Chung wrote Plaintiff’s improvement would “allow her to drive legally given the peripheral
field requirement,” but renewed the driving limitation because she was not yet cleared by her
neurosurgeon, and the LHH would require her to “exercise extreme caution driving.” Tr. 17, 591.
The ALJ afforded little weight to Dr. Chung’s opinion that driving would be a persistent
limitation because Plaintiff testified she had resumed driving. Tr. 17. The ALJ determined
Plaintiff’s testimony evidenced her “temporary [driving] limitations had expired and the
[Plaintiff] had returned to normal activity.” Id. The Court notes, although the ALJ gave Dr.
Chung’s opinion regarding the operation of a motor vehicle little weight, the ALJ ultimately
included a limitation in her RFC of “limited to no operation of motor vehicles.” Tr. 15.
As to the severe impairment of diabetes, the ALJ noted that on July 28, 2016, Plaintiff
reported her blood sugar to be 510 in the morning and 445 in the evening. Tr. 17, 469. By
August of 2016, however, Plaintiff lowered her sugar levels to the 147-228 range due to close
monitoring and treatment with insulin. Tr. 17, 562, 565. The ALJ acknowledged when Plaintiff
was not on insulin, her blood sugar would increase to 500. Id.
In December of 2017, Plaintiff reported she had experienced a seizure but did not go to
the hospital. Tr. 17, 529-30. On March 29, 2018, Plaintiff was diagnosed with “partial idiopathic
epilepsy with seizures of localized onset, not intractable, without status epilepticus.” Tr. 488.

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Plaintiff was prescribed LevETIRAcetam, commonly known as Keppra, for treatment. Id. On
April 25, 2018, an electroencephalogram (“EEG”) was ordered. Tr. 17, 495. The results were
abnormal due to “[r]are right frontal sharply contoured waves which can be consistent with
cortical irritability.” Id. On May 3, 2018, Plaintiff reported experiencing another seizure. Tr. 17,
494.
In formulating the RFC, the ALJ considered the August 16, 2016 opinion of state
disability doctor and consultative examiner, Kenneth Smith, M.D., who determined Plaintiff
could perform a light range of work with restrictions. Tr. 17, 61-65, 71-73. Dr. Smith opined
Plaintiff was not disabled but had limited left field of vision and could only occasionally lift
and/or carry 20 pounds; frequently lift and/or carry 10 pounds; stand and/or walk for a total of 6
hours in an 8-hour workday; sit more than 6 hours on a sustained basis in an 8-hour workday;
occasionally climb ramps or stairs; occasionally climb ladders, ropes, or scaffolds; frequently
balance; and occasionally stoop, kneel, crouch, or crawl. Tr. 63-64. The ALJ assigned partial
weight to Dr. Smith’s opinion, stating: “While the undersigned finds that the lifting restriction is
consistent with the medical records, the [Plaintiff’s] severe medical conditions do not support
occasionally working in dangerous environments. As such, this portion of his opinion was
inconsistent with the medical records[.]” Tr. 17.
In the decision, the ALJ noted Plaintiff was born on October 2, 1986 and was 46 years
old, defined as a “younger individual age 18-49,” on the alleged disability onset date. Tr. 18. The
ALJ acknowledged Plaintiff changed age categories to “closely approaching advanced age” as of
October 2, 2018, when she turned 50 years old. 2 Id. In addressing Plaintiff’s change in age
categories, the ALJ cited to 20 C.F.R. §§ 404.1563, which requires the Commissioner to use
Age 50 serves as a demarcation line between “younger person” (less than 50 years of age) and “person closely
approaching advanced age” (50–54 years of age) for purposes of analyzing disability claims.

2

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each of the age categories that applies to Plaintiff during the period for which the Commissioner
must determine if Plaintiff is disabled. See Ramsey v. Soc. Sec. Admin., No. 2016 WL 727547, at
*6, n.5 (M.D. Tenn. Feb. 24, 2016) (a citation to 20 C.F.R. § 404.1563 indicates the ALJ “was
plainly aware” of Plaintiff’s date of birth, and “[t]he fact that the ALJ made such findings while
referring to § 404.1563 has been noted to provide some indication that the ALJ considered the
arguably borderline age situation”), report and recommendation adopted by, 2016 WL 1044973
(M.D. Tenn. Mar. 16, 2016).
Plaintiff does not argue the ALJ failed to consider her new age category. Instead, Plaintiff
asserts the ALJ should have obtained additional medical evidence addressing her ability to
function in the workplace on or around October 2, 2018, the date she changed age categories.
Plaintiff further argues Dr. Smith’s RFC assessment was outdated because it was opined prior to
her change in age categories, and prior to her seizure disorder diagnosis and sixty-pound weight
gain.
An ALJ has a duty to fully develop the record, but this duty only arises if a crucial issue
is undeveloped. Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005). This duty is not “neverending,” and an ALJ is not required to disprove every possible impairment. Barret v. Shalala, 39
F.3d 1019, 1023 (8th Cir. 1994). The ALJ is required to order medical examinations and tests
only if the medical records presented to him do not give sufficient medical evidence to determine
whether the claimant is disabled. Conley v. Bowen, 781 F.2d 143, 146 (8th Cir. 1986). Social
Security regulations do not require the ALJ to order a consultative evaluation of every alleged
impairment but does grant the ALJ authority to do so if the existing medical sources do not
contain sufficient evidence to make a determination. See Matthews v. Bowen, 879 F.2d 422, 424
(8th Cir. 1989).

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A plaintiff’s failure to provide evidence in support of her alleged work-related restrictions
“should not be held against the ALJ when there is medical evidence that supports the ALJ’s
decision.” Steed v. Astrue, 524 F.3d 872, 876 (8th Cir. 2008). Additionally, “reversal due to
failure to develop the record is only warranted where such failure is unfair or prejudicial.”
Shannon v. Chater, 54 F.3d 484, 488 (8th Cir. 1995) (citing Onstad v. Shalala, 999 F.2d 1232,
1234 (8th Cir. 1993)). “There is no bright line rule indicating when the Commissioner has or has
not adequately developed the record; rather, such an assessment is made on a case-by-case
basis.” Mouser v. Astrue, 545 F.3d 634, 639 (8th Cir. 2008) (citation omitted).
The Court finds the ALJ did not err by failing to obtain additional medical evidence
regarding her obesity. On August 16, 2016, Dr. Smith formulated his consultative opinion
regarding Plaintiff’s RFC. Plaintiff self-reported her weight as 250 pounds. Tr. 59, 68. Although
Dr. Smith did not list obesity as a severe impairment, he explicitly considered her weight in
relation to her exertional limitations. Tr. 63-64, 72-73.
Subsequent to Dr. Smith’s evaluation, the medical record indicates Plaintiff weighed 311
pounds by November 20, 2017. Despite her weight gain, a physical examination revealed normal
results, including full range of motion and no presence of edema. Tr. 538. On December 14,
2017, Plaintiff was encouraged to exercise 30 minutes per day to “maintain health,” but no
serious concerns were noted about her weight. Tr. 531-33. On March 28, 2018, Plaintiff weighed
308 pounds, and she was advised to follow up with her primary care physician to manage her
abnormal body mass index. Tr. 488-89. On May 3, 2018, Plaintiff again exhibited a normal
physical examination with no pedal edema, clubbing or cyanosis. Tr. 494. Included within the
supplemental transcript is an August 12, 2018 treatment note in which Plaintiff’s weight was
recorded as 319 pounds. Tr. 765. Plaintiff’s chest, lung, and cardiovascular examinations were

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normal, and she exhibited no edema, although it was noted she had “stiff knees with crepitus.”
Tr. 765-66.
Based on substantial evidence in the record, the Court cannot find that the ALJ erred in
determining Plaintiff’s obesity did not result in severe symptoms or limitations. Although
Plaintiff testified that she used a cane during inclement weather, a physician did not indicate a
medical necessity for an ambulation device. The treatment recommendations provided to her for
obesity were conservative, and her physical examinations were predominately normal other than
one report of stiff knees. The ALJ accounted for any reduced mobility due to her obesity by
limiting her to occasional use of ramps and stairs, and occasional stooping, kneeling, crouching,
and crawling. Tr. 15.
“The ALJ did not have a duty to seek additional medical evidence, because there were no
undeveloped issues” as to her obesity. Salmon v. Saul, No. 4:19 CV 228 ACL, 2020 WL
1479145, at *8 (E.D. Mo. Mar. 26, 2020) (citing KKC ex rel. Stoner v. Colvin, 818 F.3d 364, 372
(8th Cir. 2016)). See also McCoy v. Astrue, 648 F.3d 605, 612 (8th Cir. 2011) (“The ALJ is
required to order medical examinations and tests only if the medical records presented to him do
not give sufficient medical evidence to determine whether the claimant is disabled.”); Anderson
v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995) (“[a]n ALJ is permitted to issue a decision without
obtaining additional medical evidence so long as other evidence in the record provides a
sufficient basis for the ALJ’s decision”); Heino v. Astrue, 578 F.3d 873, 881 (8th Cir. 2009)
(when an ALJ references the plaintiff’s obesity during the claim evaluation process, such review
may be sufficient to avoid reversal). Based on the review of the evidence in the record as a
whole, including the supplemental transcript, the Court finds the ALJ met his obligation to
develop the record regarding Plaintiff’s obesity.

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However, the Court finds the ALJ did not fully develop the record as to her seizure
disorder. Dr. Smith’s RFC assessment was formulated on August 16, 2016, which was prior to
her seizure disorder diagnosis. Plaintiff reported experiencing a seizure in December of 2017. Tr.
17, 34, 529-30. Plaintiff contacted her neurosurgeon but could not get an appointment until
March of 2018. Tr. 34-35. Plaintiff was advised to begin Keppra, an anti-seizure medication, for
treatment. Tr. 529-30. On March 29, 2018, Plaintiff appeared for her neurological appointment
and reported experiencing two additional seizures. Tr. 35. Plaintiff was diagnosed with “partial
idiopathic epilepsy with seizures of localized onset, not intractable, without status epilepticus.”
Tr. 488.
On April 25, 2018, an electroencephalogram (“EEG”) was ordered. Tr. 17, 495. The
results were abnormal due to “[r]are right frontal sharply contoured waves which can be
consistent with cortical irritability.” Id. On May 3, 2018, a treatment note indicated Plaintiff
experienced a “[r]ecent seizure” and was “back on Keppra.” Tr. 17, 494. It is unclear from the
record why Plaintiff was off of her prescribed medication prior to the May 3rd appointment.
Within the supplemental transcript, is an April 3, 2019 treatment note indicating Plaintiff had not
experienced a seizure for 13 months, or since March of 2018. Tr. 663. Notably a different record
indicated contradictory information, stating Plaintiff experienced a seizure on May 3, 2018. Tr.
17, 494.
Plaintiff argues the ALJ failed to fully develop the medical record by not ordering a
consultative examination to evaluate her new diagnosis of seizure disorder. The Court agrees. As
a general matter, the RFC should not be based on outdated medical opinions. “[A]n ALJ should
not rely on an outdated assessment if later evidence containing new, significant medical
diagnoses reasonably could have changed the reviewing physician’s opinion.” Moreno v.

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Berryhill, 882 F.3d 722, 728 (7th Cir. 2018) (citing Stage v. Colvin, 812 F.3d 1121, 1125 (7th
Cir. 2016)). Dr. Smith formulated his RFC opinion in August of 2016. Plaintiff was diagnosed
with seizure disorder in March of 2018. Dr. Smith did not have the benefit of reviewing
Plaintiff’s records or evaluating her after she was diagnosed with seizure disorder. This new
diagnosis presented an ambiguity in the record concerning the continued applicability of the RFC
assessment rendered by Dr. Smith regarding Plaintiff’s physical abilities. See 20 C.F.R. §
416.919a(b)(4) (providing that a consultative examination may be required when “[t]here is an
indication of a change in your condition that is likely to affect your ability to work, but the
current severity of your impairment is not established”). Although Plaintiff’s treating physicians
did not explicitly indicate any work-related limitations due to her seizure disorder diagnosis,
none of them submitted an RFC assessment to address such a possibility.
The Commissioner argues the ALJ may rely on relevant medical opinions no matter
when they were issued if they are consistent with the evidence in the record. ECF No. 28 at 10
(citing Jones v. Colvin, 2014 WL 4594812, at *3 (N.D. Ohio Sept. 12, 2014) (quoting Chandler
v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3rd Cir. 2011)). While the Court agrees with this
general proposition, it does not apply in the instant case. The impairments Dr. Smith reviewed in
his 2016 consultative examination are not consistent with the Plaintiff’s subsequent medical
records because she was diagnosed with the severe impairment of seizure disorder in 2017 and
reported multiple instances of seizure activity. See e.g., Ivey v. Comm’r of Soc. Sec., 2020 WL
5046261, at *4 (W.D.N.Y. Aug. 27, 2020) (“a new diagnosis of carpel tunnel syndrome rendered
stale the consultative examiner’s opinion concerning the plaintiff’s hands and fingers); McDade
v. Saul, 2021 WL 1842024, at *3 (W.D. Ark. May 7, 2021) (remand for the reason that the
opinions of the nonexamining state agency medical consultants were rendered before new

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evidence regarding the severity of plaintiff’s condition became part of the record); Moreno v.
Berryhill, 882 F.3d 722, 728 (7th Cir. 2018) (remanding where a later diagnostic report “changed
the picture so much that the ALJ erred by continuing to rely on an outdated assessment”).
The Court finds the instant record lacks an RFC assessment of Plaintiff’s ability to work
subsequent to her seizure disorder diagnosis. The ALJ’s failure to develop the record was unfair
and prejudicial to Plaintiff. Therefore, the ALJ’s RFC determination is not supported by
substantial evidence in the record as a whole.
On remand, the ALJ should seek an updated medical opinion regarding how her March
29, 2018 seizure disorder diagnosis affects her RFC, if at all, which was a consideration not
included in Dr. Smith’s August 16, 2016 consultative examination. With this new medical
evidence, the ALJ should then re-evaluate Plaintiff’s RFC and specifically list in a hypothetical
to a vocational expert any limitations which are indicated in the RFC assessments and supported
by substantial evidence.
Additionally, on remand the ALJ should also explicitly address whether her change in
age categories during the pendency of the claim, from “younger individual” to “closely
approaching advanced age,” affected her ability to function in the workplace. The ALJ’s
determination on this issue must be supported by substantial evidence in the record. The Court,
however, does not agree with Plaintiff’s argument that the ALJ was required to seek a
consultative examination simply because she changed age categories within the pendency of the
disability claim. See Cheeks v. Colvin, 2014 WL 4686485, at *5 (N.D. Ala. Sept. 15, 2014)
(rejecting argument that ALJ failed to develop the record by failing to obtain an opinion from a
medical expert or consultative examination because of recent change of age category).

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Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner of Social Security is
REVERSED, and 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.
IT IS FURTHER ORDERED that the Clerk of Court shall substitute Kilolo Kijakazi
for Andrew M. Saul in the court record of this case.
So Ordered this 10th day of January, 2022.

/s/ Stephen R. Welby

STEPHEN R. WELBY
UNITED STATES MAGISTRATE JUDGE

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