Turner v. Astrue

Filing 16

ORDER entered by Judge Nanette Laughrey. Karole Turner's Petition [Doc. # 1] is GRANTED. The decision of the ALJ is REVERSED and remanded with instructions to award benefits. (Kanies, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
KAROLE A. TURNER,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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Case No. 11-00448-CV-W-NKL-SSA

ORDER
Plaintiff Karole Turner challenges the Social Security Commissioner’s denial of her
application for disability insurance benefits under Title II of the Social Security Act, 42
U.S.C. §§ 401, et. seq.
Turner argues that the Administrative Law Judge (“ALJ”) erred by: (A) finding
Turner’s depression non-severe; (B) weighing a single decision maker’s opinion as if it were
a medical opinion; (C) giving improper weight to, failing to state the weight given to, or
failing to discuss medical opinions; (D) failing to explain inconsistences between Turner’s
residual functional capacity and medical evidence in the record; and (E) failing to make
specific findings on the demands of Turner's past relevant work. Because the Court is
persuaded by many of these arguments, and because substantial evidence on the record does
not exist for the ALJ’s finding Turner not disabled, the Court REVERSES the ALJ’s decision
and instructs the Commissioner to grant Turner benefits.

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I.

Background
The complete facts and arguments are presented in the parties’ briefs and will be

duplicated here only to the extent necessary.1 Turner filed an application for disability
benefits in September 2003, alleging diabetes, arthritis, depression, and diverticulitis. Turner
initially alleged her onset date to be March 6, 2000, but later amended that date to April 1,
2003, to coincide with the date she accepted early retirement and stopped working.
An ALJ denied Turner’s application in November 2005. In September 2007, after
hearing oral argument, the Court reversed the ALJ’s decision and remanded for further
proceedings because there was not substantial evidence to support the ALJ’s conclusion that
Turner’s emotional problems were not severe and because the ALJ did not adequately
explain the specific evidence relied on for Turner’s residual functional capacity (“RFC”).
(Tr. 387). On the latter point, the Court specifically required the ALJ to explain why he did
not incorporate into Turner’s RFC the functional limitations opined by Dr. Barnes. An ALJ
denied Turner’s application once more in August 2008. The Appeals Council remanded that
decision for further proceedings. An ALJ again denied Turner’s application in November
2009. This time the Appeals Council denied Turner’s request for an appeal, rendering it a
final decision reviewable by the Court.
As part of the most recent ALJ decision, the ALJ determined Turner’s RFC to be, in
relevant part, lifting no more than 10 pounds occasionally and less than 10 pounds
frequently, sitting no more than 6 hours in an 8 hour workday, standing and walking no more
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Portions of the parties’ briefs are adopted without quotation designated.
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than 2 hours total in an 8 hour workday with the need to shift positions occasionally, from
standing to sitting, for the purpose of stretching. (Tr. 343). The ALJ concluded, based on
the testimony of a vocational expert, that Turner could perform her past relevant work as a
secretary, dispatcher, or receptionist. (Tr. 344).
A.

Medical Records

On May 31, 2002, Dr. Elias confirmed by colonoscopy that Turner has extensive
diverticulosis. (Tr. 117, 120). In addition to a fiber supplement, a trial of Bentyl was
prescribed for her recurrent lower abdominal discomfort and irregular bowel movements.
(Tr. 117). Dickson-Diveley Midwest Orthopaedic Clinic, Inc., noted Vicodin was making
Turner sick following left carpal tunnel surgery on 9/17/02, and Extra Strength Tylenol was
given. (Tr. 213).
Turner was initially seen on June 14, 2003, at Madison Avenue Psychological
Services. Her symptoms of depression were lasting longer and were more persistent. The
diagnosis was dysthemias and major depressive disorder, recurrent, moderate. (Tr. 131).
Turner was placed on Zoloft. (Tr. 131). Turner was seen again on 6/27/03, with a diagnosis
of depression for which she was prescribed Zoloft. (Tr. 133).
Dr. Mahmoud is Turner’s primary treating physician and continued to treat Turner
throughout the pendency of this matter. Records begin on 5/15/02, when Turner was seen
for bloody stool. Turner returned on 5/16/02, with lower abdominal cramping and bloody,
mucus stool. She had had some problems with left upper quadrant pain since the new year.
Rectal bleeding was probably from diverticular disease. A colonoscopy was scheduled. (Tr.
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172). On 2/27/03, Turner had some back pain and difficulty sleeping. Dr. Mahmoud
instructed her to continue her medication for the diabetes mellitus. (Tr. 165). On 4/30/03,
Turner was seen for pain in her left thumb and follow-up of her multiple health problems.
Her left thumb was swollen on examination. There was tenderness on the base and slight
restriction of motion. X-ray showed minimal degenerative joint disease changes. (Tr. 168).
She was referred to an orthopedic surgeon.
On 6/13/03, Turner was experiencing depression with “no reason for her to be,” was
not motivated, and had no interest in anything. Dr. Mahmoud had a long talk with Turner
about her depression and referred her to a psychologist. (Tr. 166). Turner returned on
7/28/03, with ears that were desquamating and erythematous as well as situational
depression. (Tr. 164). In follow-up on 9/8/03, Turner was on Glucophage and Zoloft. The
Zoloft was making her a bit dizzy or lightheaded but her depression was better. She had
sacroillitis, worse when she stands up or sits for a period and gets up. Turner returned to see
Dr. Mahmoud on 10/12/04, for her annual exam. She was on Avandamet for her diabetes,
which was changed from Glucophage previously. Her arthritis had been acting up –
particularly in her low back. Dr. Mahmoud noted that Turner cannot sit or stand up for any
length of time and could not return to any sort of desk job. Her depression appeared to be
stable. She was to continue with her medications. (Tr. 207).
On 2/1/05, Turner reported having no motivation. The Zoloft was making her
confused. Her right hand was painful and she was having a loss of strength. She was having
back pain with radiculopathy which is longstanding – the pain was in her hip and it was such
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that she cannot sit down, stand or walk for any period of time. (Tr. 204). Turner’s diabetes
was under fair control – she had hyperlipidemia, chronic back pain, osteoarthritis with
probable carpal tunnel of the right hand and a history of diverticulitis. (Tr. 204). Turner
returned on 6/7/05, without significant improvement in her chronic depression on Cymbalta.
Diabetes was under fair control and she had hypertension, hyperlipidemia, chronic
depression, and probable chronic bronchitis. (Tr. 203). In August of 2005, Turner was
having back pain, which started when she bent over the sink to wash her hands. (Tr. 459).
The pain radiated to her upper thigh. (Tr. 459). Turner had reactions to the Cymbalta, which
made her feel dizzy, jerky, nauseous, and off-balance. (Tr. 459). Examination confirmed
tenderness in the low back area and pain in the right hip. (Tr. 458). The diagnoses included
low back pain, severe vasomotor symptoms, and intolerance to Cymbalta. (Tr. 458).
On 9/20/05, Turner was seen with lower abdominal pain going all the way up to her
lumbar area and down to her thigh. (Tr. 457). There was a trace of blood in the urinalysis
and tenderness on examination of the pelvis. Turner was referred to urology. (Tr. 457). Dr.
Mahmoud’s notes from 11/28/05, reveal Turner has chronic back pain, which is recurrent
with a recent flare up. (Tr. 456). Turner wanted to try Mobic; due to her gastrointestinal
problems she cannot take nonsteroids. (Tr. 456). Turner has occasional flares of her
diverticulitis. (Tr. 456). The assessment was diabetes mellitus; chronic back pain, recurrent;
history of diverticulitis; chronic depression, stable. (Tr. 456). On 7/12/06, Turner’s diabetes
was in “fair” control. (Tr. 453). Turner was also seen for her chronic left shoulder pain,
which hurts when she goes above shoulder level and was constantly aching. (Tr. 452). Dr.
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Mahmoud refilled her Valium, prescribed Celebrex, and referred her to Dr. Hall. (Tr. 452).
On 10/29/06, Turner was having abdominal pain and Dr. Mahmoud found tenderness
on objective examination of Turner’s left lower abdominal area. (Tr. 451). Diverticulitis and
abdominal pain, diabetes, and chronic shoulder pain were noted. (Tr. 451). Turner was
prescribed Cipro, Flagyl, and Darvocet. (Tr. 451). On December 5, 2006, Turner was noted
to have type II diabetes which was under “fair” control, chronic shoulder pain, chronic
depression, and diverticulitis. (Tr. 449). Turner’s pain was worse in the evening, on
elevation, across the chest, and behind the back, with increased difficulty with household
chores. (Tr. 495).
Notes from Dr. Mahmoud on September 18, 2007, show Turner was having rightsided stiffness in her neck on wakening and when going to bed. She was having pain in both
knees and her left hip. (Tr. 447). On 12/4/07, Turner was seen for annual examination
noting diagnoses of diabetes mellitus and chronic depression, which was improving. (Tr.
446).
Dr. Mahmoud examined Turner on 7/11/08, finding recurring low back pain due to
degenerative joint disease and intermittent low abdominal pain with burning. (Tr. 536).
Turner’s back pain is relieved with rest and Darvocet. (Tr. 536). Turner continued to take
Zoloft for chronic depression, stable. (Tr. 536). Notes from 4/28/09, reveal Turner’s bowels
were still bothering her with abdominal pain and arthritis which were keeping her from
sleeping at night. (Tr. 515). The left side of her abdomen was burning and she had sharp
pains all the time. (Tr. 515). Turner appeared anxious and there was tenderness to palpation
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of the left lower abdomen and pelvic area. The assessment was recurrent, chronic left lower
abdominal pain/pelvic pain probably due to acute diverticulitis, hemorrhoid, anxiety, diabetes
mellitus, osteoarthritis. (Tr. 515). Cipro, Flagyl, and suppositories were refilled. (Tr. 515).
B.

Opinion Evidence

Dr. Israel examined Turner on one occasion on 7/16/05, at the request of the
Commissioner. (Tr. 244). Turner reported her medications upset her stomach and she feels
dizzy. (Tr. 245). Turner no longer goes to Madison Psychological Services as she no longer
has insurance. (Tr. 246). Turner’s motor activity is slow and she appears to be in pain as she
walks. (Tr. 246). Her mood during the examination reflects mild anxiety. (Tr. 246). Turner
feels hopeless and worthless primarily because of physical problems. (Tr. 247). Turner has
adjustment disorder with depressed mood. Turner should be able to adapt to a work-related
environment and interact socially if she can deal with her pain. Her adjustment disorder
symptoms are not severe enough to interfere with her functioning on the job. (Tr. 247).
Turner’s ability to maintain attention/concentration is fair. (Tr. 249). Turner’s ability to
maintain personal appearance is fair and the doctor notes that pain is sometimes a factor in
personal appearance. (Tr. 250).
Turner was seen one time on July 23, 2005, by Dr. Barnes at the request of the
Commissioner. (Tr. 252). Turner’s gait was slow with an antalgic gait. (Tr. 254). There
is decreased mobility of her hip joints bilaterally. There was also mild swelling of her DIP
and MIP joints. Dr. Barnes opined Turner was cooperative and gave good effort. (Tr. 254).
Dr. Barnes noted lifting and carrying are impacted by Turner’s impairments. She can stand
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and/or walk a total of 2 hours in an 8 hour workday. (Tr. 258). In Dr. Barnes’ opinion,
Turner must periodically alternate sitting and standing to relieve pain or discomfort. (Tr.
259). Pushing and pulling are affected by Turner’s impairment. (Tr. 259). Turner appears
to have osteoarthritis in her hands and he would suspect arthritic changes in her hips, knees,
and back, making sitting or standing uncomfortable if done for long periods of time. Pushing
and pulling would likely exacerbate the pain from the arthritis. Turner’s ability to finger
would be limited to occasional due to osteoarthritis making fine motor use of her hands
difficult. (Tr. 260).
Dr. Chernoff was hired by the Commissioner to testify via telephone at the first
hearing. (Tr. 302). Dr. Chernoff opined Turner has diabetes with no impairment secondary
to that. She has pretty severe diverticulitis with bouts of abdominal pain on the left side and
intermittent re-constipation and her complaints related to that would be credible. Her main
problem appears to be back pain and left hand pain. There may be some sort of nerve
irritation explaining the thumb pain. (Tr. 303). The alternate diagnosis is degenerative
osteoarthritis of the metacarpal/carpal joint, the CMC joint of the thumb, which is extremely
common. (Tr. 304). Turner’s complaints that she is unable to hold a phone or hold anything
for any period of time is credible. Turner’s severe back pain is consistent with her treating
physician’s statement that Turner has sacroiliitis. (Tr. 304).
In Dr. Chernoff’s opinion, Turner does not meet or equal a listing. Turner maybe can
lift 20 pounds occasionally but she is going to be a one-handed lifter because of the hand
pain. (Emphasis added). (Tr. 305). She is not going to be able to use the left hand because
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of her credible pain. She would be limited to 2 hours in an 8 hour day of stand/walk. Turner
would be limited to occasional bending and squatting and so on. She would have to avoid
fingering and handling with the left hand. (Tr. 305).
Dr. Kelly examined Turner one time on 4/16/08, at the request of the Commissioner.
(Tr. 501). Turner had decreased ranges of motion of the left shoulder, right ankle, and spine.
(Tr. 502). In normal standing position, there is contraction of the paraspinous muscles
requiring hyperextension for relief. (Tr. 502). The hyperextension produces increased
discomfort in forward flexion. (Tr. 502). The impression after objective examination was
degenerative disc disease and arthritis of the spine with restricted motion of the spine and
lower back pain with referable pain in the lower extremities. (Tr. 502). Also diagnosed were
past contracture of the left glenohumeral joint with resident range of motion loss, history of
heel spur on the right with range of motion loss of the right ankle, history of diverticulosis,
diabetes, and chronic bronchitis. (Tr. 502). Cervical range of motion was limited. (Tr. 505).
Dorsi-flexion of both ankles was limited – limited to 0 on the right. (Tr. 505). Flexion was
limited to 45 degrees (of 90). (Tr. 505).
Dr. Kelly completed a form indicating Turner can frequently lift and carry up to 10
pounds, occasionally 20 pounds (Tr. 507), sit for 30 minutes, stand for 20 minutes, walk for
30 minutes at one time, sit a total of 4 hours, stand a total of 3 hours, and walk a total of 4
hours in an 8 hour workday due to back pain requiring position changes every 20 to 30
minutes. (Tr. 508). Turner is limited to occasionally reaching overhead with her left arm and
can frequently handle, finger, feel, push/pull. (Tr. 509).
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Dr. Golon testified at a hearing held on 7/18/08. (Tr. 606). Dr. Golon is a boardcertified psychiatrist. (Tr. 606). Dr. Golon opined Turner suffers from major depression.
(Tr. 612). Dr. Golon testified Turner’s impairment is non-severe and agrees with Exhibit 4F
that Turner has mild limitations in activities of daily living, social functioning, concentration,
persistence, and pace with one or two episodes of decompensation. (Tr. 612). Dr. Golon
further opined Turner would have a problem 10 to 15 percent of the time. (Tr. 613). The
stress of work can sometimes make depressive symptoms worse. (Tr. 614). Dr. Golon did
not examine or treat Turner and testified via telephone.
II.

Discussion
In reviewing a denial of disability benefits, the Court considers whether the ALJ’s

decision is supported by substantial evidence on the record as a whole. See Travis v. Astrue,
477 F.3d 1037, 1040 (8th Cir. 2007). “Substantial evidence is evidence that a reasonable
person might accept as adequate to support a decision.” Cox v. Barnhart, 245 F.3d 606, 608
(8th Cir. 2003) (internal quotes omitted).
A.

The ALJ’s Finding Turner’s Mental Impairments “Non-Severe”

Turner points out that the Court found, in its original remand Order on April 5, 2007,
that there was not substantial evidence in the record for the ALJ’s conclusion that Turner’s
mental impairments were non-severe under the Act. The Commissioner argues that in light
of evidence developed since that finding, substantial evidence now exists for the ALJ’s most
recent finding that Turner’s mental impairments are non-severe. But Turner correctly points
out that all of the record evidence cited by the Commissioner to support his argument
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predates April 5, 2007, with the exception of Dr. Golon’s opinions. As to Dr. Golon’s
opinions, Turner argues that the ALJ never mentions Dr. Golon’s opinions in her decision,
that Dr. Golon’s conclusions are themselves based on pre-April 5, 2007, data, and that Dr.
Golon’s testimony – which noted that Turner had major depression, would have some
functional limitations in the workplace due to that depression, and that improvement in
Turner’s condition could be due to her not currently being exposed to the stress of a
workplace (Tr. 612-14) – are ambiguous at best in their support of the ALJ’s finding. For
these reasons, the Court finds that substantial evidence still does not exist for the ALJ’s
finding that Turner’s mental impairments are non-severe under the Act. The ALJ erred in
this finding.
B.

The ALJ’s Weighing of a Single Decision Maker’s Opinion as if it were a
Medical Opinion
Turner argues that the ALJ erred in giving weight to the RFC assessment of a disability
examiner, or single decision maker (“SDM”), who the ALJ mistook for medical personnel.
“SDM-completed forms are not opinion evidence at the appeal levels.” Program Law
Operations Manual Systems, Section DI 24510.050. The Commissioner concedes that this
examiner was not a physician and that her RFC assessment was not entitled to any weight,
but essentially argues that the error is harmless. The Commissioner appears to suggest that
because the examiner’s assessment is less suggestive of disability than Turner’s ultimate
RFC, the ALJ must not have weighed heavily the examiner’s assessment. [Doc. # 14 at 21].
The Court disagrees that the error is harmless.
In considering the medical evidence to determine Turner’s RFC, the ALJ observed that
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the limitations assigned in treating physician Dr. Mahmoud’s January 31, 2005,
questionnaire, if accurate, would “preclude all competitive employment.” (Tr. 342). The
ALJ accorded “little weight to the above-cited assessment of Dr. Mahmoud as it is not
consistent with the totality of medical evidence....” Id. When the ALJ made this statement,
she mistakenly thought that the medical evidence included the RFC assessment of the
disability examiner. Although Turner’s RFC is more suggestive of disability than the
examiner’s assessment, this suggests that the ALJ, in assigning an RFC to Turner, struck a
balance between two conclusions, only one of which the ALJ was permitted to consider. On
this record, it is impossible for the Court to know whether this error would in fact affect the
ultimate determination of whether Turner is disabled, but it appears likely that the error made
a difference. In light of this error, the Court cannot find that substantial evidence exists for
the RFC that the ALJ assigned to Turner.
C.

The ALJ’s Discussion of and Assignment of Weight to Medical Opinion
Evidence

Turner argues that the ALJ erred in failing to discuss the opinions of State agency
medical consultants Dr. Chernoff and Dr. Golon. “Unless a treating source's opinion is given
controlling weight, the administrative law judge must explain in the decision the weight
given to the opinions of a State agency medical or psychological consultant,” as well as for
“any opinions from treating sources, nontreating sources, and other nonexamining sources
who do not work for [the Social Security Administration].” 20 C.F.R. § 404.1527(f)(2)(ii).
The Commissioner essentially argues that this, too, is harmless error, because (1) these

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opinions do not come from treating physicians and would not, by themselves, constitute
substantial evidence for a conclusion; (2) inconsistencies in these opinions would support the
ALJ’s discrediting them; and (3) these opinions are largely consistent with the ALJ’s
decision.
But the Commissioner’s arguments simply illustrate the importance of the rule violated
by the ALJ. Because the ALJ did not discuss the opinions of Drs. Chernoff and Golon, the
Court cannot determine whether the ALJ considered these opinions, what weight the ALJ
gave to these opinions, and whether the ALJ only considered the conclusions in these
opinions that supported the ALJ’s conclusions. This is especially troubling here, where the
ALJ discredited the opinion of a treating physician that would lead to Turner being found
disabled as “inconsistent with the totality of medical evidence.” (Tr. 340). Thus, the Court
cannot agree on this record that the error is harmless.
Turner argues that the ALJ erred by failing to state the weight given to the opinions of
State agency consultant Dr. Israel. The Commissioner does not address this argument in his
briefing. The Court finds this omission to be error.
Turner also argues that the ALJ erred by failing to state the weight given to the
opinions of one-time consultative examiners Dr. Barnes and Dr. Kelly. The Commissioner
points out that the ALJ specifically addressed both of these opinions and that the significant
limitations in Turner’s RFC reflect that the ALJ considered those opinions, citing Choate v.
Barnhart, 457 F.3d 865, 870 (8th Cir. 2006). But in the ALJ decision before the Choate
court, the ALJ discussed the weight he gave to both of the medical opinions in question, and
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the court merely determined whether that weight was appropriate. See id. Here, the Court
cannot determine whether the weight given to these treating sources was appropriate because
the ALJ did not discuss the weight she gave to either of the opinions. This constitutes error.
Finally, Turner argues that the ALJ erred by giving little, rather than controlling,
weight to the opinions of treating physician Dr. Mahmoud. “ALJs are not obliged to defer
to treating physician's medical opinions unless they are well-supported by medically
acceptable clinical and laboratory diagnostic techniques and are not inconsistent with the
other substantial evidence in the record.” Juszczyk v. Astrue, 542 F.3d 626, 632 (8th Cir.
2008) (internal quotes omitted). But an ALJ can only reject medical evidence “based on
contradicting medical evidence, not on the ALJ’s own judgments or opinions.” See id.
Turner argues that the ALJ incorrectly found Dr. Mahmoud’s conclusions to be
inconsistent with Dr. Mahmoud’s own treatment records. Specifically, Turner argues that
by referencing Dr. Mahmoud’s notes describing Turner’s condition as “improving” or
“stable” the ALJ “has isolated 3 notations from the over 5 years of medical evidence.” [Doc.
# 9 at 21]. The Commissioner points to Dr. Mahmoud’s further treatment notes suggesting
that Turner’s diabetes was fairly well-controlled, the lack of evidence of end-organ damage
from diabetes, a lack of complaints of fatigue, Turner’s conservative treatment, and Turner’s
level of activity during the treatment period to suggest that the ALJ accurately characterized
Dr. Mahmoud’s treatment notes as generally inconsistent with Dr. Mahmoud’s conclusions.
The Commissioner also points out an inconsistency in the suggestions in two forms filled out
by Dr. Mahmoud in the same day.
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After a close review of Dr. Mahmoud’s treatment notes, the Court concludes that the
alleged inconsistencies in those notes do not form substantial evidence for discounting Dr.
Mahmoud’s conclusions. The ALJ is correct that Dr. Mahmoud’s notes reflect that Turner’s
diabetes was fairly well controlled throughout the treatment period. But Dr. Mahmoud’s
notes consistently indicated that Turner is depressed; suffers from abdominal pain, hip pain,
and back pain that makes it difficult to sit or stand for long periods; suffers from bowel
complications from diverticulitis; and has difficulty using one or both hands. The ALJ’s
conclusion that these notes were so inconsistent with Dr. Mahmoud’s conclusions as to
justify giving little weight to those conclusions is not reasonable and impermissibly
substitutes the opinion of the ALJ for medical evidence.
Turner also argues that because the ALJ relied on Turner’s lack of treatment in
discounting Dr. Mahmoud’s conclusions, Turner was erroneously “disfavored because [s]he
cannot afford or is not accustomed to seeking medical care on a regular basis.” Basinger v.
Heckler, 725 F.2d 1166, 1170 (8th Cir. 1984). Turner points out that her medical insurance
would only cover three sessions with a mental health professional, and that she later lost
medical insurance altogether. The record reflects that in at least one period Turner attended
therapy when covered by her insurance and discontinued when further sessions would not
be covered by her insurance. (Tr. 164). Turner argues that her actions in seeking treatment
for mental health issues from a medical doctor, and Dr. Mahmoud’s records reflecting that
she prescribed Turner antidepressants, actually supports Dr. Mahmoud’s conclusions given
Turner’s financial condition. The Commissioner does not directly address this argument.
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The Court agrees that in light of Turner’s financial condition and her actions in seeking
treatment, the ALJ erred in relying in part on Turner’s lack of treatment to discount the
conclusions of Dr. Mahmoud.
The ALJ, in discounting the conclusions of Dr. Mahmoud, also noted that some of Dr.
Mahmoud’s findings rendered an opinion on the ultimate issue of disability. The Court
agrees that the ALJ is not bound by Dr. Mahmoud’s opinions on the ultimate issue of
disability. See Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005). But Dr. Mahmoud also
presented specific functional limitations that could only be rejected in the face of conflicting
medical evidence, rather than the ALJ’s own opinion.
D.

The ALJ’s Failure to Explain Inconsistencies Between Turner’s Residual
Functional Capacity and Medical Opinions on the Record

Turner argues that the procedural errors above demonstrate that the ALJ’s RFC for
Turner is flawed and require an award of benefits. Specifically, Turner argues that there is
no medical evidence for the ALJ’s finding that Turner is capable of sitting for six hours in
an eight-hour workday. Dr. Mahmoud opined that Turner could only sit for two hours total
in a workday (Tr. 342), and Dr. Kelly opined that Turner could only sit for a total of four
hours in a workday. (Tr. 343). Substantial evidence did not exist for the ALJ to discount Dr.
Mahmoud’s opinions, and the ALJ erred in failing to explain why she did not adopt Dr.
Kelly’s opinions. SSR 96-8p, 1996 WL 374184 at *7. The Commissioner argues that the
RFC contained significant limitations, which suggests the ALJ considered Dr. Kelly’s
opinions. But the Commissioner has not pointed the Court to any medical evidence that

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could support the ALJ’s finding that Turner is capable of sitting for six hours in a workday.
The Court thus concludes that the ALJ improperly substituted her own opinion, rather than
relying on medical evidence, to form an RFC.
Turner also argues that there is no medical evidence for the ALJ’s finding that Turner
needed “to shift positions occasionally, from standing to sitting, for the purpose of
stretching.” (Tr. 343). The Court agrees that this is an oversimplification of Dr. Kelly’s
opinion that Turner could only sit for thirty minutes at a time (Tr. 508) and Dr. Barnes’s
opinion that Turner “must periodically alternate between sitting and standing to relieve pain
and discomfort.” (Tr. 259). The ALJ erred by diluting these medical opinions without
explanation of why she was doing so. Here, again, the Commissioner argues that the ALJ
included significant limitations, which is evidence that the Commissioner gave some
consideration to these opinions. But here, again, the Commissioner points to no medical
evidence suggesting that the ALJ’s statement about occasionally standing up to stretch is an
accurate description of Turner’s condition. The ALJ erred in substituting her judgment for
medical evidence.
Given these errors, the Court also agrees that Turner is disabled and that it is
appropriate to award benefits at this time. Although Turner has the burden of demonstrating
that she is disabled, the ALJ has failed over a period of over eight years to develop a record
with substantial evidence for the decision that Turner is not disabled. The ALJ admitted that
the opinions of Turner’s longest-treating physician, if true, would render her unable to work.
The ALJ attempted to undermine these opinions by drawing out isolated and vague
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statements in the record that contradict Dr. Mahmoud’s conclusions. The ALJ also
systematically omitted medical opinions pointing to serious limitations supporting Dr.
Mahmoud’s conclusion, or summarized these opinions and disregarded their conclusions
without discussion. On the entire record before the ALJ, there is not substantial evidence to
show that Turner is not disabled. The award of benefits is thus appropriate.
E.

The ALJ’s Failure to Make Specific Findings on the Demands of Turner’s
Past Relevant Work
Turner also argues that the ALJ erred by not making specific findings regarding the
mental and physical demands of her past work and comparing those findings to Turner’s
RFC. See Ingram v. Chater, 107 F.3d 598, 604 (8th Cir. 1997). The Commissioner argues
that the ALJ was not required to make these findings because the ALJ enlisted a vocational
expert to review Turner’s file. The Court agrees that the ALJ’s failure to make specific
findings constitutes procedural error, although the use of the vocational expert, who
necessarily considered the demands of past work in forming an opinion on Turner’s ability
to return to the job, renders that error a harmless error of opinion writing. See Robinson v.
Sullivan, 956 F.2d 836, 841 (8th Cir. 1992).
F.

The ALJ’s Evaluation of Turner’s Subjective Complaints

Turner did not initially raise the issue of the ALJ’s evaluation of her subjective
complaints in her Social Security brief. Regardless, the Commissioner spent four pages of
his brief bolstering the ALJ’s evaluation of Turner’s complaints. Turner responded to these
arguments in her reply brief. Because Turner has shown that substantial evidence does not
exist for the conclusion that Turner is not disabled, and has done so without relying on an
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argument that the ALJ improperly evaluated Turner’s subjective complaints, the Court will
not address this portion of the briefing.
III.

Conclusion
Accordingly, it is hereby ORDERED that Karole Turner’s Petition [Doc. # 1] is

GRANTED. The decision of the ALJ is REVERSED and remanded with instructions to
award benefits.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: January 17, 2012
Jefferson City, Missouri

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