Smalley v. Colvin

Filing 15

ORDER AND OPINION REVERSING COMMISSIONER'S FINAL DECISION DENYING BENEFITS AND REMANDING FOR FURTHER PROCEEDINGS. Signed on 12/2/16 by District Judge Ortrie D. Smith. (Matthes Mitra, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
GREGORY S. SMALLEY,

)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Case No. 16-3042-CV-S-ODS-SSA

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

Although not specifically stated, it appears the ALJ gave no weight to the

opinion of Plaintiff’s treating physician, Dr. Ledger. R. at 18-19, 21-24. The ALJ
discounted Dr. Ledger’s opinion primarily because Plaintiff was noncompliant in treating
his diabetes. R. at 22-244. In finding Plaintiff was noncompliant, the ALJ afforded
significant weight on the opinion of Dr. Puestow. Id. However, During the hearing held
in July 2013, Dr. Puestow was asked by the ALJ if there was “anything in the record
which suggests that [Plaintiff] might be non-compliant.” R. at 73. Dr. Puestow stated, “I
really, well, there was one or two episodes where he was hypoglycemi[c] due to taking
insulin and not eating. But there aren’t multiple references to that.” Id. The ALJ also
relied on Dr. Puestow’s opinion that Plaintiff was routinely noncompliant with his insulin
medication, and Dr. Puestow’s findings about Plaintiff’s treatment and activities. R. at
23. Yet, Dr. Puestow did not render that opinion or those findings. R. at 73, 80-81.
Because Dr. Puestow’s testimony does not support a finding that Plaintiff was
noncompliant in treating his diabetes, the ALJ erred in affording significant weight to
such an opinion by Dr. Puestow, and the ALJ erred in discounting Dr. Ledger’s opinion
based on this unsupported determination. Upon remand, the ALJ must reassess the

weight afforded to Dr. Puestow and Dr. Ledger. With regard to his findings, the ALJ
must provide specific examples in the record and legal authority that permit the ALJ to
assign whatever weight he gives to the opinions of Dr. Puestow and Dr. Ledger. To the
extent the ALJ affords less weight to Dr. Ledger’s opinion than he affords the opinions
from other medical sources, the ALJ must “give good reasons” to justify the weight he
gives the treating physician’s opinion. 20 C.F.R. § 404.1527(c)(2); Anderson v. Astrue,
696 F.3d 790, 793 (8th Cir. 2015) (citation omitted).
2.

Upon reassessment of the weight afforded Dr. Puestow and Dr. Ledger,

the ALJ must also reassess Plaintiff’s residual functional capacity (“RFC”). The ALJ
must base the RFC on “all of the relevant evidence, including the medical records,
observations of treating physicians and others, and an individual’s own description of
his limitations.” McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000).
3.

Upon remand, the ALJ must resolve any discrepancies between the

vocational expert’s (“VE”) testimony and the Dictionary of Occupational Titles (“DOT”).
Specifically, the ALJ must resolve the conflict between his finding that Plaintiff is unable
to reach above shoulder level with the right upper extremity (R. at 15) with the DOT
architect listing, which requires, among other things (1) occasional exertion of up to
twenty pounds of force to move an object, (2) when the job requires sitting most of the
time, pushing and/or pulling arm or leg controls, and (3) pushing and/or pulling
materials. Dictionary of Occupational Titles #001.061.010 (4th ed. 1991).
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: December 2, 2016

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