Sims v. Astrue

Filing 16

ORDER entered by Judge Nanette Laughrey. The Court REVERSES the ALJ's decision and REMANDS the case for a determination of benefits consistent with this opinion. (Kanies, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
SHARON K. SIMS,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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Case No. 12-0163-CV-W-NKL-SSA

ORDER
Before the Court is Plaintiff Sharon K. Sims’ Social Security Complaint [Doc. #
9]. For the following reasons, the Court REVERSES the decision of the Administrative
Law Judge.
I.

Background
This case involves a claim for Disability Insurance benefits under Title II of the

Social Security Act., 42 U.S.C., §§ 410 et seq.; 42 U.S.C. §§ 1382, et seq. Plaintiff Sims
contests Defendant’s finding that she is not disabled.
Sims filed an unsuccessful application for disability benefits on May 10, 2006.
Administrative Law Judge (“ALJ”) Milan Dostal heard Sims’ case on April 8, 2008, and
denied benefits. Sims filed a timely request for review by the Appeals Council, which
denied the request on October 31, 2008. Sims then initiated a civil action for judicial
review of the Commissioner’s decision. The case was heard by Magistrate Judge John
Maughmer, who remanded Sims’ case to the Social Security Administration for rehearing

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on January 26, 2010, on the issue of Sims’ credibility. A rehearing was held on February
7, 2011, before ALJ Lauren Mathon, who again denied benefits to Sims. After the
Appeals Council denied Sims’ request for review on December 20, 2011, Sims filed a
civil action for review in this Court.
A.

Medical Evidence

Sharon Sims has been diagnosed with diabetes mellitus, hypertension,
osteoarthritis of the left and right knees, arthritis of the bilateral hips, osteoarthritis of the
left thumb, patellofemoral pain syndrome, bursitis of the right knee, and obesity. Sims
originally filed for disability after she had a total left knee replacement in January 2006
as a result of degenerative changes to her left knee. She continued to experience pain in
her left knee post-surgery. Sims underwent an arthroscopy in her right knee in November
2006. Sims continued to experience pain and occasional buckling in her right knee, and
had difficulty climbing stairs and using the bathtub. In 2007, Sims was diagnosed with
patellofemoral pain syndrome. In August 2007, Sims reported that the pain medication
Mobic and leg exercises improved her pain, but that her knees chronically ached. In
October 2007, Sims received steroid injections in her right and left knees. In March
2008, Sims’ doctor observed osteoarthritis and mild deformity changes in the right
patella, and recommended additional injections and a knee brace. During this time, Sims
also struggled with managing her diabetes and hypertension, as well as her weight, which
was 296 pounds.
In May 2008, Sims fractured her left femur following a fall and underwent
surgery. Periodic x-rays over the following months indicated that her femur had not

2

healed, and in September 2008 her physician prescribed the use of a bone stimulator.
Sims’ fracture was finally pronounced healed in August 2009. During this period, Sims
was not weight-bearing on her left leg, and used a walker and a cane for ambulation.
In August 2009, Sims reported ongoing pain in her left hip and knee. Her
physicians recommended that she consider a total right knee replacement, and noted that
she may require a total hip replacement in the future. In November 2009, Sims received
cortisone injections in her right knee to help with pain. At this time, Sims also reported
right hip and lower back pain, which her physician noted was secondary to her altered
gait due to her right knee derangement. In November 2009, x-rays revealed degenerative
changes in both hips, and Sims was given an injection in her right hip for pain. In
January 2010, an x-ray of Sims’ left hip showed mild degenerative joint disease. Sims
received additional injections in her right hip in February and March 2010, and began
considering surgical intervention for her right knee and hip. In May 2010, Sims reported
that her hip pain was progressively worsening, particularly with weight-bearing. Sims
was diagnosed with mild osteoarthritis of the hips and given a steroid injection. Sims
also experienced pain in her left thumb, which was diagnosed as mild osteoarthritis. In
October 2010, Sims was told she could not have any further injections. During this
period, Sims continued to struggle to manage her diabetes, hypertension, and weight, and
was diagnosed with depression.
1.

Opinion of Dr. Daily, Treating Physician

Dr. Jen Daily, a staff physician at Truman Medical Center, began treating Sims in
September 2008. Prior to that time, Sims had been seen by other staff physicians at

3

Truman Medical, and Dr. Daily had access to their records as far back as June 2007. Dr.
Daily diagnosed Sims with diabetes, hypertension, obesity, depression, degenerative disc
disease, sacroiliitis, and delayed wound healing of the left femur fracture.
2.

Opinion of Dr. Alexander, Medical Examiner

Dr. Alexander evaluated Sims in June 2006 at the request of the state disability
agency. Dr. Alexander noted that Sims was suffering from osteoarthritis, diabetes
mellitus (uncontrolled with early stages of retinopathy), hypertension (controlled), and
obesity. He noted that Sims had difficulty bending to take off her shoes because of her
size and that Sims ambulated slowly. He also wrote that Sims reported she sometimes
has to use an ambulatory device, but that she did not need one that day. He opined that
Sims could sit for eight hours, stand for four hours, and walk for two hours.
3.

Opinion of Dr. Gamayo, Non-Examining Medical Expert

Dr. Gamayo evaluated Sims’ medical record in 2006 but did not personally
examine her. He concluded that Sims was capable of lifting 10 pounds occasionally and
less than 10 pounds frequently; could stand or walk at least two hours in an eight-hour
workday; could sit about six hours in an eight-hour workday; and could occasionally
climb, balance, stoop, kneel, crouch, and crawl. He also noted that Sims experienced
difficulty with showering and dressing, could not perform outdoor work, and could do
laundry with family assistance.
4.

Opinion of Dr. Lofgreen, Medical Examiner

Dr. Lofgreen evaluated Sims in conjunction with an application for Medicaid in
November 2006. Dr. Lofgreen noted that Sims was severely obese and used a cane for

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ambulation. Sims reported pain on manipulation of both knees. Dr. Lofgreen opined that
Sims had “probably achieved a level of disability incompatible with continued
employment.”1
B.

Decisions of the Administrative Law Judges

A claim of disability is assessed via a five-step sequential evaluation. 20 C.F.R. §
404.1520(d) (2012). The ALJ first asks 1) whether the claimant has engaged in
substantial gainful activity since the alleged onslaught of her disability; 2) whether the
claimant has a severe impairment(s) that limits her ability to engage in basic work
activity; and 3) whether her impairment(s) meets or equals the listing of impairments
promulgated by the Social Security Administration (“SSA”). If the ALJ finds that the
impairment meets or equals one of the listed impairments, the claimant is conclusively
presumed disabled. If the impairment(s) does not meet or equal the listings, the ALJ asks
4) whether the impairment(s) prevents the claimant from performing her previous
employment, and if so, 5) whether there is other work available in the national economy
that the claimant could perform. Id; see also Bowen v. Yuckert, 482 U.S. 137, 141-42,
107 S. Ct. 2287, 2291 (1987); Fastner v. Barnhart, 324 F.3d 981, 983-84 (8th Cir. 2003).
1.

Decision of the ALJ at the 2008 Hearing

The ALJ at the 2008 hearing (“2008 ALJ”) determined that 1) Sims’ part-time
work, which she had just begun, was not substantially gainful activity; 2) Sims had the
severe impairments of osteoporosis and obesity, along with other non-severe impairments
including diabetes, hypertension, and depression; and 3) these severe impairments did not

1

TR-243.
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meet the Listings because Sims was able to ambulate and use her extremities effectively.
Regarding the fourth inquiry, the 2008 ALJ found that Sims had a Residual Functional
Capacity (RFC) to perform sedentary work. He also determined that Sims’ statements
concerning the intensity, persistence, and limiting effects of her symptoms were not
supported by the weight of the medical evidence to the degree alleged. The ALJ relied
primarily on the testimony of Dr. Alexander, the medical examiner who saw Sims in
2006 for her disability evaluation, as well as various physicians at the Truman Medical
Center who saw Sims between 2006 and 2008. He also stated that Sims’ present parttime employment made her claim that she was unable to work not credible. Based on the
testimony of the vocational expert, the 2008 ALJ determined that although Sims’
impairments prevented her from performing her past employment, there were jobs in the
national economy that Sims could perform.
2.

Decision of the ALJ at the 2011 Hearing

The Magistrate Judge at the District Court heard Sims’ appeal in January 2010 and
remanded the case for reassessment of Sims’ credibility. ALJ Lauren Mathon conducted
a second hearing for Sims in February 2011. This ALJ (“2011 ALJ”) determined the
following: 1) although Sims had worked part-time for two months after the alleged
onslaught of her disability, this work was not substantially gainful; 2) Sims has the severe
impairments of status post left knee replacement and arthroscopy, status post left femur
fracture, osteoarthritis, obesity, diabetes, degenerative joint disease, and depression; 3)
the impairments separately or in combination did not meet the SSA’s listing of
impairments; 4) Sims’ impairments prevented her from performing her previous work;

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but 5) based on the testimony of the vocational aid, there were jobs available in the
national economy that Sims could perform.
II.

Discussion
The Court finds that the 2011 ALJ erred in conducting step three of the analysis by

failing to find that Sims’ femur fracture met Listing 1.06. Additionally, the Court finds
that the ALJ erred in assessing Sims’ credibility and failed to give the opinion of Sims’
treating physician, Dr. Daily, controlling weight, and that as a consequence, her
determination that Sims is not disabled is not supported by substantial evidence in the
record.
A.

Legal Standard

To establish disability, a claimant must prove that she is unable to engage in
substantial gainful activity by reason of a medically determinable impairment that has
lasted or can be expected to last for a continuous period of 12 months or more. See 42
U.S.C. § 423(d). In reviewing the Commissioner’s denial of benefits, the Court considers
whether the ALJ’s decision “is supported by substantial evidence in the record as a
whole.” Muncy v. Apfel, 247 F.3d 728, 730 (8th Cir. 2001); see also Finch v. Astrue, 547
F.3d 933, 935 (8th Cir. 2008). “Substantial evidence” is less than a preponderance, but
must be sufficient for a reasonable mind to find it adequate to support the conclusion.
Eichelberger v. Barnhart, 390 F.3d 584, 589 (8th Cir. 2004); see also Krogmeier v.
Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002). The Court must consider evidence that
detracts from as well as supports the ALJ’s decision. Black v. Apfel, 143 F.3d 383, 385

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(8th Cir. 1998). The Court will affirm the ALJ’s decision so long as it falls within the
available “zone of choice.” See Casey v. Astrue, 503 F.3d 687, 691 (8th Cir. 2007).
B.

Whether Sims’ Impairments Meet the Listings

At step three of the disability assessment, the ALJ considers whether the claimant
has impairments that meet or equal those set out in the Listings. If so, the claimant is
conclusively presumed disabled. Sims argues that the ALJ erred by finding that her
impairments did not meet or equal Listing 1.02 and 1.06.
Under Listing 1.02A, a claimant is conclusively presumed to be disabled if she
suffers from a “[m]ajor dysfunction” of a hip, knee, or ankle “[c]haracterized by gross
anatomical deformity... and chronic joint pain and stiffness,” which is supported by xrays or other medical imaging of joint degeneration, and which results in the claimant’s
inability to ambulate effectively. 20 C.F.R. § 404 App. 1 §1.02A (2012). Under Listing
1.06, a person is conclusively presumed disabled if she suffers from a fracture of a femur
with a “[s]olid union not evident on appropriate medically acceptable imaging and not
clinically solid,” accompanied by the inability to ambulate effectively, and where the
return to effective ambulation did not occur within 12 months. 20 C.F.R. § 404 App. 1
§1.06 (2012). Effective ambulation is defined as the capability to sustain “a reasonable
walking pace over a sufficient distance to be able to carry out activities of daily living.”
20 C.F.R. § 404 App. 1 §1.00(B)(2)(b) (2012). Inability to ambulate is defined generally
as “having insufficient lower extremity functioning... to permit independent ambulation
without the use of a hand-held assistive device(s) that limits the functioning of both upper
extremities.” Id.

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On review, the Court must carefully analyze the entire record. Wilcutts v. Apfel,
143 F.3d 1134, 1136 (8th Cir. 1998). If the substantial evidence makes it equally
possible to form two opposite conclusions, one of which accords with the ALJ’s findings,
the Court is obligated to affirm the ALJ’s decision. Mapes v. Chater, 82 F.3d 259, 262
(8th Cir. 1996); see also Finch, 547 F.3d at 935. The Court finds that the ALJ erred in
finding that Sims did not meet Listing 1.06 during the period of May 2008-August 2009,
but that the medical evidence is not sufficient to disprove the ALJ’s conclusion that Sims
did not meet the requirements of Listing 1.02 during the remaining period.
With regards to Listing 1.06, Defendant argues that there is no objective medical
evidence that Plaintiff did not have a solid union of her femur fracture. [Doc. #14]
However, there is in fact extensive medical evidence that Sims experienced a femur
fracture that met Listing 1.06. The medical records indicate that Sims fractured her
femur in May 2008, and x-rays in September 2008 revealed that the femur had failed to
heal. Sims was prescribed a bone stimulator, which she used until August 2009, when
her fracture was finally pronounced healed. During these fifteen months, Sims was nonweight-bearing on her left side and relied on a wheelchair, walker, and then a cane to
ambulate. She testified that she had to use a shower chair and a bed commode, and relied
on her family and friends for cleaning and household help. The Court finds that Sims
met the requirements of Listing 1.06 from the period of May 2008-August 2009, and so
Sims can be conclusively presumed disabled during this time.
Regarding Listing 1.02, the Court finds that it is a close question whether the
medical evidence is sufficient to prove Sims’ inability to ambulate effectively during the

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remainder of the alleged period of disability. In discussing Sims’ ability to ambulate, one
physician at the Truman Medical Center noted in 2009 that “walking bothers [her right
knee].”2 In 2010, another physician noted that since 2008 Sims “has had increased
difficulty with walking and pain in the left leg along with degenerative joint disease in
her knees bilaterally.”3 Sims also testified at her 2011 hearing that she regularly uses a
walker or cane. However, the record reveals no definitive statements by Sims’ treating
physicians that Sims is unable to walk “without the use of a hand-held assistive device(s)
that limits the functioning of both upper extremities.” Because it is a matter on which
reasonable people could differ, the Court affirms the ALJ’s finding on this issue.
C.

Whether the ALJ Properly Determined the RFC

If a claimant’s impairments do not meet or equal a Listing, the ALJ then proceeds
to consider whether the claimant can perform her previous work or, if not, whether jobs
exist in substantial numbers in the national economy that claimant could perform. The
ALJ found that Sims could no longer perform her previous work as an aid for disabled
persons, but concluded that jobs existed in the national economy that Sims could
perform. Having considered the record as a whole, the Court finds that there is not
substantial evidence in the record to support the ALJ’s rejection of Sim’s complaints of
disabling pain or the ALJ’s failure to give controlling weight to the opinion of Sims’
treating physician.
i.

Whether the ALJ Properly Assessed Sims’ Credibility

2
3

TR-694.
TR-643.
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In analyzing a claimant's subjective complaints of pain, the ALJ must take into
account “(1) the claimant's daily activities; (2) the duration, frequency, and intensity of
the pain; (3) dosage, effectiveness, and side effects of medication; (4) precipitating and
aggravating factors; and (5) functional restrictions.” Black, 143 F.3d at 386 (referencing
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)); see also Finch, 547 F.3d at
935; Casey, 503 F.3d at 695.
Sims testified that she suffers from chronic knee and hip pain and has difficulty
with daily living activities. She attests that she has used a cane or walker almost
continuously since her left knee replacement in January 2006. She testified at the 2011
hearing that she uses a walker around her home, that she has trouble showering and must
use a shower chair, and that she cannot perform routine household tasks like cleaning the
kitchen floor. She stated that she relies on family members to accompany her shopping
and perform household chores.
The ALJ must seriously consider allegations of subjective pain. Finch, 547 F.3d
at 935; see also Polaski, 739 F.2d at 1322; Karlix v. Barnhart, 457 F.3d 742, 748 (8th
Cir. 2006). Although the assessment of the credibility of a claimant’s subjective
testimony is primarily under the auspice of the ALJ, an ALJ who finds a claimant not
credible must lay out substantial evidence of “inconsistencies in the record which cause
him to reject the plaintiff's complaints.” Masterson v. Barnhart, 363 F.3d 731, 738 (8th
Cir. 2004).
The 2011 ALJ concluded that Sims was not credible because her claims of pain
were “infrequent” and “sporadic.” She emphasized particularly that Sims saw her

11

physician at Truman Medical for knee pain in October 2007 but “did not report for
additional treatment or complain of pain to her knees until March 2008.” TR-545.
However, this statement is inaccurate, and ignores the context of Sims’ treatment.
During this period, Sims had the following appointments for knee pain:
 June 2007 – Sims’ physician noted that Sims reported that her right knee
occasionally buckled, that she was having trouble climbing stairs and
getting out of the bathtub. She was prescribed Mobic and instructed on
knee exercises. Her physician noted she may be a candidate for right knee
replacement.
 August 2007 – Sims was seen in sports medicine clinic and by Truman
Medical physician; Sims reported she had begun water aerobics and was
trying to quit smoking and lose weight. Sims was advised to continue
following up with the sports medicine clinic about leg strengthening
exercises. The doctor noted that Sims would continue Mobic as needed for
pain. She was scheduled for a follow up appointment in one month.
 September 2007 – The physician refilled Sims’ Mobic prescription,
administered a right knee injection, and recommended leg strengthening
exercises and water aerobics; Sims was scheduled for a follow-up
appointment in one month.
 October 3, 2007 - The physician refilled Sims’ Mobic prescription,
administered a bilateral knee injection, and recommended physical therapy.
Sims was scheduled for a follow-appointment in one month.
 October 31, 2007 – Sims’ physician noted that Sims reported performing
exercises and trying to lose weight; that Mobic and injections were helpful
in alleviating her pain; but that Sims could not go to physical therapy
because she could not afford the co-pay. The physician recommended she
continue with the prescribed treatment plan and follow up in three months.
 December 2007 – Sims reported her pain is well controlled with Mobic.
The physician noted that her next appointment with the Sports Medicine
Clinic was in three months.
 March 2008 – Sims reported constant knee pain and received a shot in her
right knee. The physician increased her Mobic dosage for a limited period
of time.
As this review of the record shows, the ALJ’s claim of a six-month gap between
Sims’ October 2007 and March 2008 appointments is false. Furthermore, the record

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indicates that her physicians were systematically lengthening the period between followup appointments, from one to two to eventually three months, as the treatment plan
provided appeared to be taking effect. Thus, the ALJ’s determination that Sims was not
credible on the basis of “infrequent” or “sporadic” treatments is not at all supported by
the record.
The ALJ also discounted Sims’ complaints about pain on the grounds that Sims “is
able to perform activities of daily living such as shopping for food, does laundry, uses a
computer and is able to drive [sic].” TR-545. However, the ability to engage in daily life
activities, at a reduced pace and within a confined scope, does not guarantee the ability to
perform a full-time job in a competitive atmosphere. “As we have repeatedly held, the
inquiry must focus on the claimant's ability to perform the requisite physical acts day in
and day out, in the sometimes competitive and stressful conditions in which real people
work in the real world.” Tang v. Apfel, 205 F.3d 1084, 1086 (8th Cir. 2000); see also
Brosnahan v. Barnhart, 336 F.3d 671, 677 (8th Cir. 2003). As Sims testified, she
experiences significant limitations on her ability to engage in routine daily activities, such
as shopping, cleaning, and personal care. These limitations are supported by the medical
opinions both of Sims’ treating physicians as well as the state examiners Drs. Alexander
and Gamayo, who noted that Sims had trouble with showing, dressing, and cleaning.
There is thus insufficient basis in the record to support the ALJ’s conclusion that because
Sims can perform limited daily life activities, her testimony about her pain is not credible.
The 2008 ALJ based his determination that Sims was not credible on the fact that
she had had a consistent, long-term work record prior to the onslaught of her knee

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impairments. On appeal, Magistrate Judge Maughmer noted that Sims’ work history
could be interpreted differently; he remanded the case for a determination of how Sims’
prior work history and attempt to return to the workforce affected her credibility, noting,
“It does reflect a strong desire, effort, and motivation to return to the workforce.” TR619. However, the 2011 ALJ did not address Sims’ prior work history and previous
attempt to return to the workforce at all. The Court finds that Sims’ history of nearly two
decades of work as a mental health aid and her attempt to return to similar work prior to
her femur fracture speaks to her credibility. Furthermore, the fact that Sims fell and
fractured her femur shortly after attempting to return to work indicates that she does
indeed have difficulty ambulating such that she is not steady on her feet.
Based on the above analysis, the Court finds that the ALJ erred in determining that
Sims was not credible.
ii.

Whether the ALJ Appropriately Weighed the Opinion of the

Treating Physician
The Court finds that the ALJ erred by not giving sufficient weight to Sims’
treating physician, Dr. Daily. A treating physician's opinion is generally entitled to
“controlling weight,” provided it is consistent with the medical record and not called into
question by more thorough medical evidence. Prosch v. Apfel, 201 F.3d 1010, 1012 (8th
Cir. 2000); see also Owen v. Astrue, 551 F.3d 792, 798 (8th Cir. 2008); Rogers v. Chater,
118 F.3d 600, 602 (8th Cir.1997); 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). Even if
the ALJ determines that inconsistency or superseding medical assessments exist,s he
must still “give good reasons” for disregarding the treating physician’s opinion. Prosch,

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201 F.3d at 1013 (quoting 20 C.F.R § 404.1527(d)(2)). Yet the 2011 ALJ dismissed the
opinion of Sims’ treating physician, Dr. Daily, in one line, on the grounds that Dr. Daily
“noted no complaints of pain or other symptoms from claimant consistent with her
opinion.” TR-545. This is inaccurate, however, as the records of Dr. Daily and the other
Truman Medical Center physicians consistently refer to Sims’ “persistent right hip and
joint pain,”4 “bilateral hip pain,”5 “degenerative joint disease with right hip pain,”6 “right
knee osteoarthritis,”7 and “evidence of sclerosis on the patient’s left hip.”8 In 2009, Dr.
Daily noted that “the patient may need total hip replacement in the future” as well as
“total knee replacement.”9 Although Dr. Daily noted that injections provided relief for
Sims’ knee pain, in 2010 Sims was told by the orthopedic surgeons that she could no
longer receive injections because she had already had too many. There is no
inconsistency between Dr. Daily’s medical assessment of Sims and reports by other
treating physicians in the record. The only inconsistency is between Dr. Daily’s
assessment of Sims’ Residual Functional Capacity (“RFC”) and that of Drs. Alexander
and Gamayo, the state medical experts.
Residual Functional Capacity (“RFC”) is defined as “the most a claimant can still
do despite his or her physical or mental limitations.” Masterson, 363 F.3d at 737
(internal quotes omitted). A claimant’s RFC is assessed based on the totality of the

4

TR-669.
TR-671.
6
TR-674.
7
TR-684.
8
Id.
9
TR-685.
5

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relevant evidence in the case record, “including medical records, observations of treating
physicians and others, and claimant's own descriptions of his or her limitations.” Id.
This assessment also takes into account the combined effect of both “severe” and “not
severe” impairments, as well as the individual claimant’s susceptibility to pain. 20
C.F.R. § 404.1545(e).
In formulating Sim’s RFC, the 2011 ALJ determined that Sims was unable to
return to her past work as a mental health aid, but was capable of sedentary work with a
sit/stand option. In determining that Sims’ impairments were not debilitating, the ALJ
relied primarily on the opinion of Dr. Alexander, the physician who examined Sims once
in 2006, after her left knee surgery but before the onslaught of symptoms in her right
knee and hips. The ALJ also relied on the RFC formulated by Dr. Gamayo, the nonexamining source who formulated his conclusions about Sims’ work capability based on
her record in 2006. However, the opinion of a consultative physician who examines a
claimant only once or not at all “is not considered substantial evidence, especially if, as
here, the treating physician contradicts the consulting physician's opinion.” Lauer v.
Apfel, 245 F.3d 700, 705 (8th Cir. 2001); see also Kelley v. Callahan, 133 F.3d 583, 589
(8th Cir. 1998).
Sims’ treating physician, Dr. Daily, conducted a function-by-function assessment
of Sims’ work capability in January 2010. Based on her treatment of Sims and Sims’
medical record, Dr. Daily stated that Sims:
 Could stand/walk for less than two hours in an eight hour day;
 Could sit for four hours in an eight hour day;
 Could walk less than one block without severe pain;

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 Would be unable to walk one block at a reasonable pace on rough or uneven
surfaces;
 Would have difficulty sitting for a prolonged period of time;
 Would occasionally experience deficits in attention and concentration due to pain;
 Would require the ability to shift positions at will from sitting, standing, or
walking, and would need to take unscheduled breaks throughout the day;
 Would not require the use of a cane while engaging in occasional standing or
walking;
 Could rarely lift and carry less than ten pounds and could never lift and carry more
than ten pounds;
 Could rarely stoop, bend, crouch, or squat and could never climb ladders or stairs;
 Would likely miss two days of work per month due to her medical condition.
This RFC assessment by Dr. Daily is amply supported by both the medical record and
Sims’ subjective complaints of pain.
In determining a claimant’s RFC, the ALJ must conduct a function-by-function
analysis of her capabilities. See Social Security Ruling 96-8p (noting that “a failure to
first make a function-by-function assessment of the individual’s limitations or
restrictions” could result in an inaccurate RFC, and that “[e]ach function must be
considered separately.”). Yet the 2011 ALJ merely repeated the RFC assessment by the
state medical examiners, stating that Sims could sit for eight hours a day; stand for four
hours out of an eight-hour day; walk for two hours in an eight-hour day; lift and carry 10
pound occasionally and less than 10 pounds frequently; and occasionally climb, balance,
stoop, kneel, crouch, and crawl. As noted above, however, the opinion of a non-treating
source who merely examines a claimant once or not at all is not entitled to substantial
weight, especially, as in this case, when it is contradicted by the opinion of a claimant’s
treating physician. The findings of Drs. Alexander and Gamayo therefore cannot be
reasonably adopted in determining Sims’ RFC when they clearly conflict with the

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findings of her treating physician, Dr. Daily. This RFC formulated by Dr. Daily indicates
that Sims’ ability to work is much more limited than indicated by the state medical
experts. The Court finds that the ALJ at the 2011 hearing erred by failing to give
controlling weight to the opinions of Sims’ treating physician, and as such miscalculated
Sims’ work capability.
At this stage of the analysis, the Defendant bears the burden of showing that jobs
exist in substantial numbers in the national economy which the claimant could perform
despite her limitations. 20 C.F.R. §§ 404.1545(a)(1); 20 C.F.R. § 404.1520(g). See also
Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998); Frankl v. Shalala, 47 F.3d 935,
939 (8th Cir. 1995). A vocational expert’s testimony of the availability of jobs based on
an inaccurate RFC does not have substantial weight. McKinney v. Apfel, 228 F.3d 860,
865 (8th Cir. 2000); see also Hulsey v. Astrue, 622 F.3d 917, 922 (8th Cir. 2010).
Because the ALJ’s RFC was inaccurate, the vocational expert’s opinion that there were
jobs in the national economy that Sims could perform is not entitled to substantial weight.
As such, the Defendant has not borne his burden, and substantial evidence does not
support the ALJ’s denial of benefits.
III.

Conclusion
The Social Security regulations authorize the district court to affirm, modify, or

reverse the Commissioner's decision “with or without remanding the cause for a
rehearing.” 42 U.S.C. § 405(g). Where evidence of disability is overwhelming, the court
should reverse, rather than remand. Bryant v. Bowen, 882 F.2d 1331, 1334 (8th Cir.
1989); see also Cunningham v. Apfel, 222 F.3d 496, 503 (8th Cir. 2000) (where the

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record contains substantial evidence supporting a finding of disability and a remand
would unnecessarily delay benefits, reversal is appropriate). Because the Court finds that
the ALJ’s denial of benefits was not based on substantial evidence in the record, and that
substantial evidence supports a finding of disability, the Court REVERSES the ALJ’s
decision and REMANDS the case for a determination of benefits consistent with this
opinion.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: November 2, 2012
Jefferson City, Missouri

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