Wells v. Colvin

Filing 13

ORDER. The Commissioner's decision is reversed, and the case is remanded for further proceedings. Signed on 2/21/17 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
TERRY WELLS,

)
)
Plaintiff,
)
)
vs.
)
)
1
NANCY A. BERRYHILL,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Case No. 16-04148-CV-C-ODS

ORDER AND OPINION REVERSING COMMISSIONER’S FINAL DECISION
DENYING BENEFITS AND REMANDING FOR FURTHER PROCEEDINGS
Pending is Plaintiff’s appeal of the Commissioner of Social Security’s decision
denying his application for disability insurance benefits. The Commissioner’s decision is
reversed, and the case is remanded for further proceedings.
1.

The Administrative Law Judge (“ALJ”) set forth a residual functional

capacity (“RFC”) that is not supported by the substantial evidence in the record. The
ALJ found Plaintiff has the following severe impairments: “low back pain and
degenerative joint disease secondary to an all-terrain vehicle accident with neuropathy
and spinal abscesses.” R. at 18. The ALJ determined Plaintiff has an RFC “to perform
the full range of light work as defined in 20 C.F.R. § 404.1567(b).” R. at 20. In
formulating Plaintiff’s RFC, the ALJ gave the opinion of a consultative examiner, who
found Plaintiff had no limitations, “no weight because [it is] completely contrary to the
rest of the record.” R. at 26. Nonetheless, the ALJ found “no reason to attack the
[examiner’s] clinical findings,” because they were consistent with an absence of
treatment in the eight to nine month period prior to Plaintiff’s hearing. Id. The ALJ gave
some weight to the opinion of Plaintiff’s treating physician, Dr. Jones, due to a lack of
treatment in the eight to nine months prior to the hearing. Id.

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Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted for
former Acting Commissioner Carolyn A. Colvin as the Defendant in this suit.

Plaintiff reported he had to retire early due to injuries sustained in an all-terrain
vehicle accident. R. at 21. As a result, Plaintiff’s pension was considerably smaller
than planned, and “nearly his entire pension payment goes towards” health insurance
premiums, and he cannot afford co-pays. Id. The ALJ determined Plaintiff used
tobacco products and could have diverted money to his co-pays rather than purchase
tobacco products. R. at 26. This finding was based on one reference in the
consultative examiner’s notes, but the notes do not specify when this tobacco use
occurred. R. at 537. However, the record indicates Plaintiff has not used tobacco
products for many years. R. at 105, 311, 371-72, 385, 364, 442, 444, 446, 448, 450,
452, 454, 456, 511.
Furthermore, the ALJ relied on an absence of prescription refills by Dr. Jones in
the eight to nine months prior to the hearing to create Plaintiff’s RFC. R. at 24. “While a
claimant for benefits has the burden of proving a disability, the Secretary has the duty to
develop the record fully and fairly, even if...the claimant is represented by counsel.”
Boyd v. Sullivan, 960 F.2d 733, 736 (8th Cir. 1992) (citation and internal quotation
omitted). While a lack of office visits or medications may support the ALJ’s ultimate
decision in this matter, the ALJ has a duty to investigate and more fully develop the
record regarding whether Plaintiff received medications without office visits during the
eight to nine months before the hearing.
2.

In finding Plaintiff had an RFC for light work consistent with his past

relevant work, the ALJ described Plaintiff’s daily activities as “fairly active.” R. at 21.
This description is not consistent with the function report completed by Plaintiff in which
he describes an ability to walk for only five to ten minutes at a time, tinkering with his
hobby of sign painting only when his pain level permitted, and an inability to drive for
over an hour without severe pain.2 R. at 224-25. Plaintiff also states he is unable to,
among other things, tie his shoes, take a bath alone, do yard work, perform his job, pick
up his grandchildren, and sleep without having back spasms. R. at 225. The record
suggests, particularly Plaintiff’s testimony, function report, and statements by Dr. Jones,

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The ALJ states Plaintiff is able to “walk the dog,” but Plaintiff’s function report does not
mention a dog. R. at 224-30. Plaintiff does have a cat, and is able to help feed and
clean its litter box with his wife’s occasional help. R. at 225.
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the presence of some limitations on Plaintiff’s physical abilities. Yet, the RFC contained
no physical limitations, a finding that is not harmonious with the record.
3.

Upon remand, the ALJ must:
a.

carefully consider the credibility of Plaintiff’s subjective complaints

of pain and any medication or treatment received in the eight to nine months prior to the
hearing. The ALJ must also consider how Plaintiff’s financial situation may have
affected his ability to seek treatment in that time period. The ALJ should contact Dr.
Jones, if necessary.
b.

set forth an RFC that includes limitations related to Plaintiff’s

physical conditions, including but not limited to Plaintiff’s low back pain and
degenerative joint disease, which the ALJ found to be severe impairments, as well as
the other physical conditions alleged by Plaintiff and found by the ALJ (i.e., a syncopal
episode, hearing loss, bilateral shoulder osteoarthritis, small hiatal hernia, slight
coronary artery disease, and mild emphysematous changes) to the extent that any/all of
these physical conditions are supported by substantial evidence of the record and
impact Plaintiff’s ability to work.
c.

assess Plaintiff’s credibility, accounting for Plaintiff’s work history

and attempts to return to work, daily activities, subjective complaints of pain after
undergoing physical therapy, and any other pertinent considerations.
4.

To the extent the ALJ finds Plaintiff can return to his past work as an

automobile repair service estimator, the ALJ must make findings of fact regarding the
physical and mental demands of Plaintiff’s previous job.

IT IS SO ORDERED.

/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: February 21, 2017

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