England v. Astrue

Filing 13

ORDER reversing the decision of the Commissioner and granting 9 plaintiff's motion to remand pursuant to sentence four. Signed by Magistrate Judge Robert E. Larsen on 10/6/2008. (Marullo, Carol)

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF MISSOURI SOUTHWESTERN DIVISION DIANA ENGLAND, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. ) ) ) ) ) ) ) ) ) )

Case No. 08-5022-CV-SW-REL-SSA

ORDER REVERSING THE DECISION OF THE COMMISSIONER, AND GRANTING PLAINTIFF'S MOTION TO REMAND Plaintiff Diana England seeks review of the final decision of the Commissioner of Social Security denying plaintiff's application for disability benefits under Title II of the Social Security Act ("the Act"). Plaintiff argues that the ALJ erred

(1) in finding that plaintiff's back impairment is not severe, (2) in formulating a residual functional capacity that is not supported by the evidence, (3) in failing to order a consultative mental health examination or in failing to recontact the treating source, and (4) in failing to properly assess plaintiff's credibility. I find that the ALJ erred in failing to support her

findings and in failing to resolve conflicts in the record. Therefore, plaintiff's motion to reverse and remand will be granted. I. BACKGROUND On July 12, 2005, plaintiff applied for disability benefits alleging that she had been disabled since June 24, 2005.

Plaintiff's disability stems from a deformed foot, back pain, and depression. 2005. Plaintiff's application was denied on October 6,

On March 8, 2007, a hearing was held before an On April 4, 2007, the ALJ found that On

Administrative Law Judge.

plaintiff was not under a "disability" as defined in the Act.

January 5, 2008, the Appeals Council denied plaintiff's request for review. Therefore, the decision of the ALJ stands as the

final decision of the Commissioner. II. STANDARD FOR JUDICIAL REVIEW Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for judicial review of a "final decision" of the Commissioner. The

standard for judicial review by the federal district court is whether the decision of the Commissioner was supported by substantial evidence. 42 U.S.C. § 405(g); Richardson v. Perales,

402 U.S. 389, 401 (1971); Mittlestedt v. Apfel, 204 F.3d 847, 850-51 (8th Cir. 2000); Johnson v. Chater, 108 F.3d 178, 179 (8th Cir. 1997); Andler v. Chater, 100 F.3d 1389, 1392 (8th Cir. 1996). The determination of whether the Commissioner's decision

is supported by substantial evidence requires review of the entire record, considering the evidence in support of and in opposition to the Commissioner's decision. Universal Camera

Corp. v. NLRB, 340 U.S. 474, 488 (1951); Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir. 1989). "The Court must also take into

2

consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory." Wilcutts

v. Apfel, 143 F.3d 1134, 1136 (8th Cir. 1998) (citing Steadman v. Securities & Exchange Commission, 450 U.S. 91, 99 (1981)). Substantial evidence means "more than a mere scintilla. It

means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402

U.S. at 401; Jernigan v. Sullivan, 948 F.2d 1070, 1073 n. 5 (8th Cir. 1991). However, the substantial evidence standard

presupposes a zone of choice within which the decision makers can go either way, without interference by the courts. "[A]n

administrative decision is not subject to reversal merely because substantial evidence would have supported an opposite decision." Id.; Clarke v. Bowen, 843 F.2d 271, 272-73 (8th Cir. 1988). III. BURDEN OF PROOF AND SEQUENTIAL EVALUATION PROCESS An individual claiming disability benefits has the burden of proving she is unable to return to past relevant work by reason of a medically-determinable physical or mental impairment which 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). If the

plaintiff establishes that she is unable to return to past relevant work because of the disability, the burden of persuasion shifts to the Commissioner to establish that there is some other

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type of substantial gainful activity in the national economy that the plaintiff can perform. Nevland v. Apfel, 204 F.3d 853, 857

(8th Cir. 2000); Brock v. Apfel, 118 F. Supp. 2d 974 (W.D. Mo. 2000). The Social Security Administration has promulgated detailed regulations setting out a sequential evaluation process to determine whether a claimant is disabled. codified at 20 C.F.R. §§ 404.1501, et seq. These regulations are The five-step

sequential evaluation process used by the Commissioner is outlined in 20 C.F.R. § 404.1520 and is summarized as follows: 1. Is the claimant performing substantial gainful activity? Yes = not disabled. No = go to next step. 2. Does the claimant have a severe impairment or a combination of impairments which significantly limits her ability to do basic work activities? No = not disabled. Yes = go to next step. 3. Does the impairment meet or equal a listed impairment in Appendix 1? Yes = disabled. No = go to next step. 4. Does the impairment prevent the claimant from doing past relevant work? No = not disabled. Yes = go to next step where burden shifts to Com-

missioner.

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5. Does the impairment prevent the claimant from doing any other work? Yes = disabled. No = not disabled. IV. THE RECORD The record consists of the testimony of plaintiff and vocational expert Terri D. Crawford, in addition to documentary evidence admitted at the hearing. A. ADMINISTRATIVE REPORTS The record contains the following administrative reports: Earnings Record The record shows that plaintiff earned the following income from 1976 through 2006: Year 1976 1977 1978 1979 1980 1981 1982 1983 1984 1985 1986 1987 Income $ 12.67 915.40 893.29 1,806.35 1,182.65 2,568.17 2,703.14 4,525.64 3,505.76 2,153.27 2,033.34 507.50 5 Year 1992 1993 1994 1995 1996 1997 1998 1999 2000 2001 2002 2003 Income $ 3,976.65 8,112.01 7,164.63 11,593.07 8,675.21 18,769.70 22,376.20 312.00 1,992.24 0.00 2,795.94 2,910.70

1988 1989 1990 1991 (Tr. at 48). Work Activity Report

0.00 0.00 907.50 2,544.15

2004 2005 2006

7,019.65 0.00 0.00

In a Work Activity Report completed on July 18, 2005, plaintiff reported that she works about 20 hours per week at the Burwick Pre-School and Day Care (Tr. at 66). a helper for no pay (Tr. at 66). Plaintiff works as

Plaintiff's mother owns the in-

home day care, and plaintiff is living with her mother (Tr. at 68). My mother watches 4 children, aged 1-4. 2 are in diapers. I let them into the daycare in the a.m. and they lay down. If my mother is not up I fix breakfast at 8:30. The children have laid down since arriving until about 8:15. I help them with breakfast. I go outside with them at 10 for an hr. I sit to watch them while outside. I help wash them and get them ready for lunch. After lunch they rest for about 2 hours. After nap they have snacks. I help change the ones in diapers. I watch them at play until their parents come to get them. I am not paid. I am helping my mother because she has had emotional problems since my father died 5/15/05. I leave to go to the dr, run errands, etc. The only physical part is changing the diapers. (Tr. at 69-70). Function Report In a Function Report dated July 27, 2005, plaintiff described her daily activities: She gets up at 4:40 a.m. to make He leaves for work at 5:20

coffee and pack her husband's lunch. 6

a.m.

Plaintiff then waits for the daycare kids to arrive.

She

spends most of the day watching television, sitting on the computer, or sitting on the porch if the kids are outside. Some

nights plaintiff cooks dinner (complete meals), she vacuums once in a while, does laundry, loads and unloads the dishwasher, and mows with a riding lawnmower (Tr. at 73-75). Plaintiff cooks a

few times a week, and it takes her 30 minutes to an hour to prepare a meal (Tr. at 75). She reported no changes in her "no pain no gain, do what

cooking habits due to her impairment:

ya got to do and just do it -- life moves on with or without you." (Tr. at 75). (Tr. at 74). Plaintiff has no problems with personal care

She wakes every 1 1/2 to 2 1/2 hours at night when

she moves due to back and shoulder pain and foot pain (Tr. at 74). Plaintiff reported that she goes outside "all day and till Have to smoke outside

10:30 p.m. most, but not all nites [sic].

so every 2 to 3 hours I go outside, sit on pourch [sic] and smoke 1 cig and then go back in house." (Tr. at 76). She reported

that she drives a car when she goes out and can go out alone (Tr. at 767). at 76). When asked to describe things she does with other people, plaintiff reported that she chats online with "air people", and spends her days with her family (Tr. at 77). Plaintiff was asked She can shop for three hours at a time on average (Tr.

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how far she can walk before needing a rest, and she wrote, "do not like to sit or stand and rest if there will be a lot of walking - harder to start walking again after stopping and resting -- slow + 30 min or so - not really sure" (Tr. at 78). She reported that she can pay attention "as long as I have to" (Tr. at 78). She is able to finish what she starts and she can

follow both written and oral instructions "well" (Tr. at 78). When asked how well she handles changes in routine, plaintiff wrote, "OK - have to do what I have to do - that's that, go with the flow not as much stress" (Tr. at 79). Plaintiff reported that she has lived with daily and constant pain since 1984 but it has gotten worse (Tr. at 80). B. SUMMARY OF MEDICAL RECORDS On November 22, 2004, plaintiff established care with Edgar Conrad, D.O. (Tr. at 129). Plaintiff complained of a lot of

problems with her left foot on which she had reconstruction done in 1984, and she said she had been crying a lot and was depressed. Plaintiff reported that she was smoking a half a pack She was

of cigarettes per day and occasionally drank alcohol. using Exedrin and Tylenol PM a lot.

On exam Dr. Conrad found He diagnosed

that plaintiff had normal judgement and insight.

left foot pain, what appears to read "left arm pain" and depression. He prescribed Symbyax, an antidepressant.

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On November 24, 2004, plaintiff saw J. Christopher Banwart, M.D., for left foot pain (Tr. at 132-133). Her past medical

history listed depression, anemia, and visual problems. Plaintiff was on no medication, and was smoking 1/2 pack of cigarettes per day. On exam, plaintiff was tender with palpation over the left foot. X-rays were taken and Dr. Banwart noted a

well-healed left femur fracture and mid-foot left foot posttraumatic arthrosis [joint]. He assessed post-traumatic

arthrosis mid-foot joints left foot and chronic left foot pain. He referred plaintiff to Dr. Tim Ogden. "I would not recommend

narcotic pain medication for this patient's chronic pain." On December 7, 2004, plaintiff saw J. Timothy Ogden, M.D., an orthopaedic doctor, for evaluation of her left foot (Tr. at 131). Plaintiff reported that she was in an accident 20 years

earlier, had her left femur plated, and her left foot had extensive surgery including pins. "She's had chronic problems She takes

with pain in her back, left thigh, and the left foot. over-the-counter medications for this."

Plaintiff reported a She was smoking

history of chronic pain, depression, and anemia. 1/2 pack of cigarettes per day.

On exam, Dr. Ogden noted that

plaintiff's left foot is deformed, but her pain was actually in the anterior ankle. X-rays taken by Dr. Banwart on November 24, The

2004, showed extensive post-traumatic degenerative change.

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great toe metatarsal was about 1/3 what it should be.

Dr. Ogden

diagnosed traumatic arthropathy [joint disease] in the left foot. Dr. Ogden discussed surgery with plaintiff, told her about the surgery and that her postoperative recovery would take a long time. "She wants to avoid any type of surgery like this if at Dr. Ogden recommended over-the-counter orthotics

all possible."

and "prescriptions were given today"; however, the record does not identify those prescriptions. There are no medical records covering the next almost eight months. Plaintiff's alleged onset of disability is June 24, 2005. She completed her application for disability benefits on July 12, 2005. On July 20, 2005, plaintiff saw Orville Mehaffey, M.D., a family practitioner (Tr. at 136). The notes state that plaintiff No exam was performed. Dr.

did not get any relief from Ultram.

Mehaffey diagnosed degenerative joint disease of the left foot and lumbar radiculopathy (leg pain caused by lumbar nerve roots). He prescribed Oxycodone (narcotic). Two days later, plaintiff

called and reported that the Oxycodone made her itch all over. The note includes what appears to be a written prescription for Talacin, a synthetic opiate.

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On August 2, 2005, plaintiff saw Dr. Mehaffey (Tr. at 175). She said she continued to have some pain in her foot and that she had some relief with Talacin. She also complained of back pain. "The patient has a

Dr. Mehaffey's exam was limited as follows: markedly scarred, deformed, left foot. than the right leg. region.

The left leg is smaller

The patient has muscle spasms in the dorsal He assessed He prescribed

She is diffusely tender in this region."

chronic left foot pain and dorsal muscle strain.

Talacin with five refills and Flexeril (muscle relaxer) with five refills. On September 2, 2005, plaintiff saw Dr. Mehaffey (Tr. at 174-175). She requested help with quitting smoking because her

husband had recently had a heart attack and pacemaker placement. Dr. Mehaffey's exam was limited to plaintiff's heart and lungs. He prescribed Wellbutrin and a Nicoderm patch. On September 20, 2005, plaintiff was examined by Sitaraman Subramanian, M.D., at the request of Disability Determinations (Tr. at 138-142). The chief complaint was listed as "pain in the She has a history of

left leg with difficulty walking.

automobile accident, reflux disease and tobacco abuse." Plaintiff had a mild cough and mild exertional dyspnea (shortness of breath). Plaintiff reported smoking 1/2 pack of cigarettes Plaintiff was taking Talacen

per day for the past 30 years.

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(also known as Talacin, a synthetic opiate) for pain.

On page

two of Dr. Subramanian's report, it says "She also complains of chronic back pain. . . . Denies any history of depression". On

exam Dr. Subramanian observed that plaintiff walks with a limp favoring the right side. She walked without assistive device.

She had decreased range of motion in the left knee and left ankle. 1. with pain. 2. 3. 4. 5. Possible chronic obstructive airway disease. Tobacco abuse. Reflux disease. Painful menstruation. "The patient does not Dr. Subramanian's impressions were: Traumatic arthritis of the left knee and left ankle

The reported concluded as follows:

seem to have any disability in sitting, standing, handling objects, hearing, speaking or traveling, however, because of the pain in her left leg and ankle pain she may have disability lifting, carrying and walking long distance. of shortness of breath on exertion." On September 30, 2005, L. Bobbett completed a Physical Residual Functional Capacity Assessment (Tr. at 89-96). Dr. She also complains

Bobbett found that plaintiff could lift 20 pounds occasionally and ten pounds frequently, stand or walk for two hours per day;

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sit for about six hours per day; and had an unlimited ability to push or pull with hand or foot controls (Tr. at 90). Dr. Bobbett

noted plaintiff's foot deformity and her gait with a noticeable limp. Dr. Bobbett noted plaintiff has back pain but normal range Dr. Bobbett found that plaintiff can occasionally

of motion.

climb, balance, stoop, kneel, crouch, or crawl (Tr. at 91). On October 3, 2005, C. Kenneth Bowles completed a Psychiatric Review Technique (Tr. at 145-158). He found that He

plaintiff's mental impairment, depression, was not severe.

found that plaintiff had no restriction of activities of daily living; no difficulties in maintaining social functioning; no difficulties in maintaining concentration, persistence, or pace; and no episodes of decompensation. In support of his findings,

Dr. Bowles wrote, "Claimant does not allege depression, but medical evidence supports a history of depression with a visit to her physician in 11/04 for depression. antidepressant in 11/04. depression. Physician recommended an

Claimant does not currently complain of

Physical CE does not show any problems/complaints Claimant's ADL's [activities of daily living]

with depression.

show that she assists her mother as necessary with daycare. Claimant is able to carry on household activities and chores, she prepares meals. Claimant also notes in her ADL's that she is

able to follow instructions, gets along well with others and is

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able to handle changes fine.

Although claimant has a diagnosis

of depression, her functioning is not impacted significantly by it. Therefore, depression is considered non-severe." On October 4, 2005, plaintiff saw Dr. Mehaffey (Tr. at 174). She said she did not feel the Talacin was helping her pain. Under objective, Dr. Mehaffey wrote, "The patient has a markedly deformed left foot." He assessed chronic left foot pain and Plaintiff called

prescribed Lortab (narcotic) with five refills.

in several times after this visit requesting refills of her Lortab. In January 2006, the refill was denied and plaintiff was

told she must come in to see the doctor. On October 6, 2005, plaintiff's application for disability benefits was denied. On July 14, 2006, plaintiff saw Dr. Mehaffey (Tr. at 173). Plaintiff had not seen a treating physician for more than nine months. Plaintiff complained of left foot pain and thoracic and Dr. Mehaffey observed a markedly deformed and

lumbosacral pain.

scarred left ankle and foot, plaintiff's gait involved a stiff left ankle, she had an exaggerated lordotic curve with paraspinous muscle spasms, and she had tender points throughout the spinal column. He assessed chronic foot pain and

degenerative disc disease of the thoracic and lumbosacral vertebra. He prescribed Lortab (narcotic), Lodine (non-steroidal

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anti-inflammatory), and x-rays of plaintiff's spine. On July 17, 2006, plaintiff had x-rays taken of her spine (Tr. at 176-177). Christopher Meoli, D.O., the radiologist,

found lumbar spondylosis1 with no acute process and thoracic spondylosis. Plaintiff did not see any doctor for the next six months. On January 3, 2007, plaintiff returned to see Dr. Mehaffey (Tr. at 173). She reported no benefit from the Lodine. She

reported continued severe pain in her left foot.

In addition to

her prescription Lortab (acetaminophen [Tylenol] and hydrocodone [narcotic]), she was taking Tylenol, Ibuprofen (non-steroidal anti-inflammatory), and Naproxen (non-steroidal antiinflammatory) all together in addition to three Tylenol PM at night. Dr. Mehaffey noted plaintiff was getting "toxic doses of Plaintiff reported having a lot of problems with "No

Tylenol".

nervousness and depression, she said she cries at anything. exam today."

Dr. Mehaffey assessed RSD left foot (I have been He prescribed Duragesic

unable to determine what "RSD" means).

patch (Fentanyl, a narcotic), Roxanol (morphine), and Celexa (antidepressant). On February 2, 2007, plaintiff saw Dr. Mehaffey (Tr. at 172).
1

"The patient is applying for Social Security disability.

Spinal osteoarthritis, degeneration of the spine from wear and tear. 15

The patient states she cannot stand for any length of time without having to sit. The patient continues to have severe pain in her left foot. The patient occasionally requires Roxanol This is usually related to her

[morphine] for breakthrough pain. activity level.

If she does any kind of activity the pain The patient continues to have severe The report says, "No exam today." He prescribed a Duragesic

increases in intensity.

pain in her mid and low back."

Dr. Mehaffey assessed RSD left foot.

patch, which is Fentanyl, a narcotic pain medicine. Also on February 2, 2007, Dr. Mehaffey completed a Medical Source Statement - Physical (Tr. at 165-166). He found that

plaintiff can lift or carry less than five pounds, walk for less than one hour at a time and for less than one hour all day, sit for two hours at a time and for two hours all day, and is limited in her ability to push or pull. He found that plaintiff can

never climb, balance, stoop, kneel, crouch, or crawl, but that she can frequently reach, handle, feel, see, speak, and hear. He

found that she should avoid any exposure to extreme cold, extreme heat, weather, wetness, humidity, dust, fumes, vibration, hazards, and heights. He found that plaintiff needs to lie down

hourly to alleviate pain. He checked "yes" to the question "Does patient's pain, use of medication, or side effects of medication cause a decrease in concentration, persistence, or pace, or any

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other limitations?" illegible.

However, his written description is

On that same day, Dr. Mehaffey completed a Medical Source Statement - Mental (Tr. at 168-169). markedly limited in the following: P P P The ability to carry out detailed instructions The ability to maintain attention and concentration for extended periods The ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances The ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods The ability to accept instructions and respond appropriately to criticism from supervisors The ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes The ability to respond appropriately to changes in the work setting The ability to set realistic goals or make plans independently of others He found that plaintiff is

P

P P P P

He found that plaintiff was moderately limited in the following: P P P P The ability to remember locations and work-like procedures The ability to understand and remember very short and simple instructions The ability to understand and remember detailed instructions The ability to carry out very short and simple instructions 17

P P P P P

The ability to sustain an ordinary routine without special supervision The ability to work in coordination with or proximity to others without being distracted by them The ability to make simple work-related decisions The ability to interact appropriately with the general public The ability to travel in unfamiliar places or use public transportation

Finally, he found no significant limitation in the following: P P P The ability to ask simple questions or request assistance The ability to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness The ability to be aware of normal hazards and take appropriate precautions The form asks the doctor to identify which of the following factors support his findings: (1) (2) Medical history. Clinical findings (such as the result of physical or

mental status examinations). (3) (4) Laboratory findings (such as blood pressure, x-rays). Diagnosis (statement of disease or injury based on its

signs and symptoms). (5) Treatment prescribed with response, and prognosis.

Dr. Mehaffey did not mark any of those.

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On March 2, 2007, plaintiff saw Dr. Mehaffey (Tr. at 171). She continues to complain of severe pain in her left foot. back continues to ache." "No exam today." "Her

Plaintiff reported trouble sleeping. He prescribed

He assessed RDS left foot.

Roxanol (morphine), Duragesic Patch (Fentanyl, a narcotic pain medicine), and Restoril (for insomnia). C. SUMMARY OF TESTIMONY During the March 8, 2007, hearing, plaintiff testified; and Terri Crawford, a vocational expert, testified at the request of the ALJ. 1. Vocational expert testimony. Vocational expert Terri Crawford testified at the request of the Administrative Law Judge. The first hypothetical involved a

person who could do light work with no climbing or balancing, no working around hazardous conditions, no public contact, and limited coworker interaction (Tr. at 211-212). The vocational

expert testified that such a person could work as an electronics assembler, with 83,000 in the country and 1,900 in Missouri (Tr. at 212). At a sedentary level, the person could be a final

assembler with 1,400 in Missouri as well as an assembler production with 54,000 in the country and 1,600 in Missouri (Tr. at 212-213).

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2.

Plaintiff's testimony. Plaintiff testified she lived in a house with her mother and

husband (Tr. at 183).

Plaintiff's mother runs an in-home day Plaintiff and her

care, and plaintiff helps (Tr. at 183).

husband had a mobile home until May of 2005 when they moved in with plaintiff's mother (Tr. at 183). Plaintiff's husband works

full time and she has health insurance through her husband's employment (Tr. at 184). Plaintiff has a high school education and four years of college, but she did not get a degree because she did not pass physical science (Tr. at 184-185). Plaintiff has been fired from

"quite a few jobs" due to tardiness and failing to lie for her bosses (Tr. at 185-186). Plaintiff's earnings almost tripled

from 2003 to 2004 although her alleged onset of disability is June 25, 2004 (Tr. at 187). significant about that date. (Tr. at 187). The ALJ asked plaintiff what was She said, "I don't really know."

When confronted with earnings records showing

employers' names, plaintiff said, "That was mother, you know. I've been doing stuff for Mother since my kids were born and she went back into daycare for the state. And sometimes she claims

paying me and whatever, but --" (Tr. at 188). Plaintiff said she gets up at 4:30 with her husband, so she is up at 6:00 a.m. when the day care opens (Tr. at 188). She

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sits in a chair at the computer and waits for people to bring their children in (Tr. at 188). The kids lie down on cots until There

about 8:30 when plaintiff's mother gets up (Tr. at 188).

are anywhere from seven to 11 children in the day care on any given day (Tr. at 189). Plaintiff cooks the breakfast, she helps

put the cots away, and then she takes a nap for an hour and a half until it is time to cook lunch (Tr. at 189, 199). She cooks

lunch from 11:00 to 11:30, and then she helps lay the cots back out (Tr. at 189). Plaintiff naps until 3:00 while the kids are The kids get up at 3:00 and have a

napping (Tr. at 189, 199). snack (Tr. at 199). 199).

Plaintiff helps stack up the cots (Tr. at

Plaintiff testified that the two children in diapers climb up a ladder to the changing table because neither she nor her mother can lift them (Tr. at 189, 199). The children also climb The day care closes

up into their own high chairs (Tr. at 199). at 6:00 p.m. (Tr. at 202).

Plaintiff has a driver's license and drives (Tr. at 190). She was still smoking a half a pack of cigarettes per day (Tr. at 190-91). She claimed she had been cutting back, although all the

medical records indicate plaintiff had smoked a half a pack of cigarettes per day for 30 years (Tr. at 191). Plaintiff does

laundry, she loads and unloads the dishwasher, plaintiff takes

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care of her bedroom, she mows the yard for an hour at a time with a riding lawnmower (Tr. at 201). Plaintiff and her mother shop

every week for groceries, and they have to buy all the food for the day care (Tr. at 202). Plaintiff's mother gets money from

the state for the food, and her mother also gets Social Security (Tr. at 202). When asked if she has any hobbies, plaintiff said,

"Oh, there's a ton of stuff I like, but it all costs money, so, no, I don't do much." (Tr. at 202). The ALJ asked what kind of treatment plaintiff had had in the last five years for arthritis and problems with her leg and foot (Tr. at 191). Plaintiff said, "Okay, I have problems

spending money when I have no income, so I have been selfmedicating until I was pretty, pretty much forced to go to a doctor with, you know, eating six Tylenol PMs to go to sleep, eat 8,000 milligrams of acetaminophen and 8,000 milligrams of the other stuff, ibuprofen, eat some Naproxens, eat some aspirin, mix them all up, that's what I've been doing until I was told that if I don't go [to] a doctor to prove I have an issue, too bad. So

now it costs me $100 a month to go get my medications from my doctor because he has to write a prescription every month. So I

have to get that out of our money that my husband's trying to pay our bills with from our ex-lives, and now it costs us $100 more and I can't even bring in $100 to pay for my own doctor and

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medication." (Tr. at 192).

Plaintiff testified that she cannot

afford a mental evaluation, nor can she afford an MRI that has been recommended (Tr. at 192). Plaintiff testified that her

husband's medication is more important than hers because her husband is the one working (Tr. at 192-193). Plaintiff testified that her foot does not hurt when she sits (Tr. at 193). at 193). But if she sits too long, her back hurts (Tr.

Plaintiff said she could walk for 35 to 40 minutes

without stopping because she does it every Saturday when she takes her mother shopping (Tr. at 196). She can only stand still When asked how long

for three minutes at a time (Tr. at 196).

she could sit, plaintiff said, "Oh, I'm a pretty good sitter." She estimated she could sit in an office-type chair for about an hour (Tr. at 197). When asked why she could not do a sit-down job, plaintiff said it was because of her shoulders and her back (Tr. at 207). She also said she has "unproclaimed carpal tunnel" or tennis elbow (Tr. at 207). at 207). She also has arthritis in her fingers (Tr.

She gets out of breath if she walks up inclines, but

she is OK walking on a flat surface (Tr. at 209). Plaintiff has dealt with depression for 20 years (Tr. at 210). When asked if that causes problems with concentration,

plaintiff said, "I try not to concentrate much." (Tr. at 210).

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When asked if plaintiff has any problems dealing with people, she said, "Not recently." (Tr. at 210). Plaintiff is on an Her

antidepressant but it does not work very well (Tr. at 207). doctor told her to give it another month (Tr. at 207).

Plaintiff

said she sees Dr. Mehaffey every month so he can write her prescriptions, and that costs her $60 (Tr. at 209). When asked whether she has side effects from her medicine, plaintiff said, "[I] find that when I drive, I have a tendency to -- I just feel though I'm paying to the road, but it's like I don't see, you know. I see it but it's -- I have to go -- I

guess I'm spacing off or something, so I've made a better effort when I drive to make sure I'm not just staring at something." (Tr. at 197). Plaintiff said she is tired all the time, but that

could be from her depression (Tr. at 198). The ALJ asked plaintiff if she had anything else to add, and she said: I'm not an unskilled worker and when it comes to electronics, I made it to assistant supervisor, so it's really hard to slap somebody back down into an assembly line and be expected to take that wage cut. I don't know why because I've been willing to take a wage cut to go back into that kind of job if they tell me I'm over-qualified. So I don't know how well the unskilled part will work on the -(Tr. at 215). At the conclusion of the hearing, plaintiff's counsel requested that the ALJ order a mental evaluation of plaintiff

24

(Tr. at 215-216). 216). V.

The ALJ said she would think about it (Tr. at

No mental evaluation was ever ordered. FINDINGS OF THE ALJ Administrative Law Judge Marsha Stroup entered her opinion

on April 4, 2007. Step one. Plaintiff has not engaged in substantial gainful

activity since her alleged onset date (Tr. at 15) Step two. Plaintiff suffers from depression and left foot

pain with arthritis, impairments which are severe (Tr. at 15). Plaintiff's alleged carpel tunnel syndrome and back pain are not severe (Tr. at 15). There is nothing in the file to support an

allegation of carpal tunnel syndrome, and x-rays show there is nothing wrong with plaintiff's back (Tr. at 15). Step three. Plaintiff's impairments do not meet or equal a

listed impairment (Tr. at 15). Step four. Plaintiff's subjective complaints are not Plaintiff retains the residual functional

credible (Tr. at 17).

capacity to perform sedentary work with no climbing, balancing, or public contact and limited co-worker interaction (Tr. at 16). With this RFC plaintiff cannot perform her past relevant work (Tr. at 18).

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Step five.

Plaintiff is capable of working as a final

assembler or a production assembler, both of which exist in significant numbers in the economy (Tr. at 18-19). VI. CREDIBILITY OF PLAINTIFF Plaintiff argues that the ALJ erred in finding that plaintiff's testimony was not credible. Plaintiff points out

that the ALJ dedicated only one sentence in the entire order to plaintiff's credibility before dismissing her allegations of pain and frequent crying. A. CONSIDERATION OF RELEVANT FACTORS The credibility of a plaintiff's subjective testimony is primarily for the Commissioner to decide, not the courts. v. Bowen, 862 F.2d 176, 178 (8th Cir. 1988); 830 F.2d 878, 882 (8th Cir. 1987). Rautio

Benskin v. Bowen,

If there are inconsistencies

in the record as a whole, the ALJ may discount subjective complaints. Gray v. Apfel, 192 F.3d 799, 803 (8th Cir. 1999); The ALJ,

McClees v. Shalala, 2 F.3d 301, 303 (8th Cir. 1993).

however, must make express credibility determinations and set forth the inconsistencies which led to his or her conclusions. Hall v. Chater, 62 F.3d 220, 223 (8th Cir. 1995); Robinson v. Sullivan, 956 F.2d 836, 839 (8th Cir. 1992). If an ALJ

explicitly discredits testimony and gives legally sufficient reasons for doing so, the court will defer to the ALJ's judgment

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unless it is not supported by substantial evidence on the record as a whole. Robinson v. Sullivan, 956 F.2d at 841.

In this case, I find that the ALJ's decision to discredit plaintiff's subjective complaints is not supported by any reasoning in her order. Subjective complaints may not be

evaluated solely on the basis of objective medical evidence or personal observations by the ALJ. In determining credibility,

consideration must be given to all relevant factors, including plaintiff's prior work record and observations by third parties and treating and examining physicians relating to such matters as plaintiff's daily activities; the duration, frequency, and intensity of the symptoms; precipitating and aggravating factors; dosage, effectiveness, and side effects of medication; and functional restrictions. 1322 (8th Cir. 1984). Polaski v. Heckler, 739 F.2d 1320,

Social Security Ruling 96-7p encompasses

the same factors as those enumerated in the Polaski opinion, and additionally states that the following factors should be considered: Treatment, other than medication, the individual

receives or has received for relief of pain or other symptoms; and any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board).

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The specific reasons listed by the ALJ for discrediting plaintiff's subjective complaints of disability are minimal. Although the ALJ recites the factors of Polaski, she fails to address any of them. following: After considering the evidence of record, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to produce the alleged symptoms, but that the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible. For instance, the claimant reported that she has dealt with depression since she was run over by a car but medical records from September 2005 demonstrate that she denied any history of depression to Dr. Subramanian. (Tr. at 17). The only reason the ALJ discredited plaintiff is because she failed to complain of depression when she was examined by Dr. Subramanian. The ALJ did not address any of the other Polaski The credibility analysis is limited to the

factors, nor did she order a mental evaluation to supplement the contradictory record. I do note that plaintiff's daily activities -- helping to take care of up to 11 children per day, shopping for three hours at a time, doing laundry and cooking, loading and unloading the dishwasher, mowing the lawn -- suggest that she is exaggerating her limitations. In addition, there are lengthy periods of time Because plaintiff has health

when plaintiff saw no doctor.

insurance, her lack of medical treatment suggests her symptoms 28

are not as severe as she claims.

When plaintiff was asked what

was significant about her alleged onset date, she said, "I don't know." There are no medical records around the time of the Plaintiff testified that she had been Yet

alleged onset date.

cutting down on smoking and was down to a half a pack a day.

all of the medical records show that she had been smoking a half a pack a day for years. When asked if she had any hobbies, she

said "no", but the reason was due to the expense, not due to her impairments. Plaintiff testified that she has carpal tunnel Yet not

syndrome, tennis elbow, and arthritis in her fingers.

one medical record includes any of these diagnoses, nor do they include any complaints by plaintiff of any problems with her wrists, elbows, or fingers. Plaintiff testified at the hearing

that she had been in management in electronics, and its would be "really hard" to "slap somebody back down into an assembly line and be expected to take that wage cut", which suggests that plaintiff would rather get government benefits than work for a lower rate of pay than she did in the past. Although these facts suggest that the ALJ correctly found plaintiff not credible, I cannot assume to know the ALJ's reasoning. Nor does it account for the years' worth of

complaints by plaintiff of leg and back pain and depression including frequent crying spells. Although the ALJ found

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plaintiff's depression severe, there was no discussion about how this fit into the credibility determination. If an ALJ explicitly discredits testimony and gives legally sufficient reasons for doing so, the court will defer to the ALJ's judgment. Here, the ALJ did not give legally sufficient Therefore remand is

reasons for discrediting plaintiff. appropriate. VII. CONCLUSIONS

In addition to the credibility analysis, the ALJ on remand should order a mental evaluation and resolve the conflict in the record with regard to plaintiff's abilities. For example,

plaintiff reported in her administrative paperwork that she can pay attention as long as she has to. Yet her treating physician

found that she was markedly limited in her ability to maintain attention and concentration. Dr. Bowles found that plaintiff's

depression was not severe, yet he noted that the medical evidence supports a history of depression. Dr. Mehaffey found that

plaintiff can walk for less than one hour all day but plaintiff said she could shop for three hours at a time. Dr. Mehaffey

found that plaintiff needs to lie down hourly to alleviate pain, yet plaintiff's testimony is that she lies down a total of twice per day. Dr. Mehaffey found that plaintiff is markedly limited

in her ability to get along with coworkers or peers, but she

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testified she has no problem getting along with people.

Dr.

Mehaffey found that plaintiff is moderately limited in her ability to understand, remember, and carry out very short and simple instructions, but plaintiff testified that she regularly cooks meals and that takes 30 to 60 minutes. that she follows instructions "well". She also reported

The ALJ found that

plaintiff's back impairment is not severe because x-rays show there is nothing wrong with plaintiff's back. not one normal x-ray in the record. However, there is

The only x-rays of On

plaintiff's back show lumbar and thoracic spondylosis.

remand, all of these discrepancies must be addressed by the ALJ. It is ORDERED that plaintiff's motion for remand is granted. is further ORDERED that the decision of the Commissioner is reversed and this case is remanded pursuant to sentence four. It

/s/ Robert E. Larsen
ROBERT E. LARSEN United States Magistrate Judge Kansas City, Missouri October 6, 2008

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