Fly v. Social Security Administration et al

Filing 27

MEMORANDUM AND ORDER that the decision of the ALJ is reversed. This action is remanded to the Commissioner for an award of benefits. A final judgment will be entered in accordance with this memorandum opinion. Ordered by Chief Judge Joseph F. Bataillon. (Copy mailed/e-mailed to pro se party)(ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
LAVELL D. FLY
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security Administration,
Defendant.

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4:09CV3194

MEMORANDUM AND ORDER

This matter is before the court on the plaintiff’s pro se appeal from the Social
Security Administration’s denial of his request for disability benefits, Filing No. 1. This is
an action for judicial review of a final decision of the Commissioner of the Social Security
Administration (“the Commissioner”). The plaintiff appeals the Commissioner’s decision
to deny his applications for disability benefits under the Social Security Act (“the Act”), 42
U.S.C. §§ 401 et seq., Title XVI of the Act, 42 U.S.C. §§ 1381 et seq., and Supplemental
Security Income (“SSI”). This court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383
(c).
Plaintiff Lavell D. Fly filed for Social Security disability benefits on October 10, 2006,
alleging an onset of disability as of that date. See Filing No. 16, Social Security Transcript
of Proceedings (“Tr.”) at 105-10, 132.1
reconsideration.

Id., Tr. at 9.

His application was denied initially and on

Fly requested a hearing and appeared before an

administrative law judge (“ALJ”) on February 5, 2009. Id. at 20-53. Thereafter, the ALJ
found Fly was not disabled within the meaning of Social Security regulations and denied

1

References to page num bers are to the num bers at the bottom right hand corner of each page of the
electronically-filed adm inistrative record. These num bers do not correspond to the page num bers of the PDF
docum ent.

benefits. Id. at 6-19. On August 4, 2009, the Appeals Council denied Fly’s request for
review of the ALJ’s decision, which made the ALJ’s decision the final decision of the
Commission. Id. at 1-3.
I. BACKGROUND
A. The Hearing
The evidence adduced at the hearing shows that Fly is a divorced Native American
Lakota Sioux male in his mid-50s who testified that he is homeless and lives in his car. Id.
at 24-27. He weighs 370 pounds, and is 5 feet 11 inches tall. Id. at 24. He dropped out
of eighth grade, but later obtained his high school equivalency degree (GED) while in
prison. Id. He testified that he had been hospitalized in three mental institutions and had
been diagnosed as mildly mentally retarded. Id. at 39. He testified he had trouble keeping
up the pace on the job. Id. at 25. Also he stated that his hands cramp up, his shoulders
hurt and his legs swell up and cramp. Id. He stated that his legs swell and are tender even
when he does not work and that he has to be in the hospital three to five days at a time
when his leg swells up. Id. at 26. He stated that his leg hurts and he has to “elevate it all
the time.” Id. at 30. He also stated that he has only been able to walk about a half a block
since he has been taking blood pressure pills and can stand for less than 30 minutes
before his knees and the bottoms of his feet start to hurt. Id. at 33.
He also complained of hearing problems and lightheadedness and stated his bloodpressure medication made him “real tired.” Id. at 27. He further stated he has chest pain
when lifting heavy objects and starts breathing hard and sweating when he exerts himself.
Id. at 32. He also testified that he once walked from Omaha to Lincoln, but later stated
someone had given him a ride, and testified that he sleeps for only an hour and a half a
2

day. Id. at 29, 31. He testified his breathing problems worsened when he was in an
automobile accident and punctured his lung and broke two ribs. Id. at 33.
He testified that he had been fired from most temporary jobs he had. Id. at 35.
Further, he stated that the only jobs he ever had were heavy, manual labor jobs. Id. at 35.
Fly testified that his labor jobs aggravated his disability due to scaling flights of stairs and
carrying heavy items such as iron pipes from one wall to the other. Id. at 25. He also
stated that his boss would not permit him to take his potassium pills, which prevent the
tightening of his muscles, or his blood pressure pills, which causes him to have severe
coughing attacks. Id. at 27.
Fly also testified that he did not presently drink or take drugs and that he had never
done so in the past, but he alluded to mental problems that “they [psychiatrists] try to say
that’s drinking and stuff.” Id. at 39. When asked if he had been violent, he stated he had
not taken Paxil, which was the medication that was prescribed when he was in prison, and
that when he does not take the medication he gets very violent. Id. at 39. Further, he
testified he had gotten into fights and was banned for life from some food kitchens and
homeless shelters. Id. at 28-29. He then testified that he has struggled with violent
tendencies and begged for help at the Lancaster County Mental Health Center, but that
“they didn’t want to give [him] medicine.” Id. at 39. He later testified, however, that he had
been prescribed Paxil and was taking it at the time of the hearing. Id. at 40.
A vocational expert, Dr. Michael McKeeman, also testified at the hearing. Id. at
46-53. The vocational expert testified that Fly had no past relevant work. Id. at 47. He
was asked whether a claimant with disabilities similar to Fly’s could perform work in the

3

national economy.2 Id. The vocational expert responded that there “would be unskilled
types of jobs that would fit that hypothetical that are in the sedentary exertional range,” but
that it was “nebulous as to whether he––how much light work he can do.” Id. at 49. When
pressed by the ALJ, the vocational expert added that he would “be inclined to think that the
light work—he could do with the discomfort in his chest,” stating that he based that
conclusion on “the ability to stand and walk for six of eight hours.” Id. He stated that those
jobs would include food preparation work, packaging work, and stock clerking work. Id. at
49-50. He also testified that if the hypothetical claimant were required to elevate his leg
for an hour during an eight-hour period, but not during normal breaks, he could not
maintain employment. Id. at 51.
Fly’s friend, Norma Goodteacher, completed a supplemental information form. Id.
at 129-31, 142-44. She reported that Fly had been in a mental institution located in
Hastings, Nebraska, and at some point in another mental institution in Lincoln. Id. at 144.
She remarked that Fly needed a psychiatric doctor and medication because she believed

2

Specifically, the ALJ asked:

This is an individual who’s had right leg cellulitis, obesity, anti-social personality disorder,
border line intellectual functioning, history of Post Traum atic Stress Disorder, has been
diagnosed with psychosis NOS, and noted to have m ood problem s. This is an individual who
has a history of hypertension, has generalized left knee pain, m ild to m oderate degenerative
changes of the right shoulder. Has also com plained of bilateral knee pain. This is an
individual who’s com plained of chest discom fort. This is an individual with a verbal IQ of 77,
a perform ance IQ of 76, and a full scale IQ of 75. Mild problem s with activities of daily living,
m oderate problem s with social functioning, m ild problem s with concentration, persistence
and pace. And no episodes of decom pensation of an extended duration. This is an
individual who can do sim ple, unskilled work. Avoid working involving strong interpersonal
skills and com plex instructions. No heavy lifting. No frequent kneeling and clim bing. No
work with special training and special skills. This is an individual who can lift 20 pounds
occasionally, 10 pounds frequently. Sit, stand and walk six out of eight. Occasionally clim b,
kneel, crouch, crawl. Can he perform work in the national econom y?
Id. at 47.
4

he was crazy. Id. at 131. She also reported that he suffers pain in his knees and legs. Id.
at 142. In addition, she reported that he was “slow,” “don’t think fast,” and “has a mental
block.” Id. at 144.
B. Medical Evidence
The medical evidence shows that Fly has been diagnosed at various times with
gastritis, right leg cellulitis, venous stasis edema, severe; morbid obesity, gastroesophageal
reflux disease, traumatic knee arthritis, hypertension, venous insufficiency NOS [not
otherwise specified], edema, trauma arthropathy low left extremity, mild renal insufficiency,
right groin adenopathy secondary to infection, renal ureter discord NOS, and left upper
lobe atelectasis. See, e.g., id. at 349, 265, 273, 274. He has been prescribed Lasix,
potassium supplementation, intravenous Cefazolin, Metroprolol, Furosemide, potassium
chloride, Vancomycin, Lisinopril, Micardis, Toprol, ACE inhibitor, Paxil, and Risperdal. See
id. at 261-62. The record contains objective evidence of severe valvular incompetence in
the right common femoral vein and right greater saphenous vein. Id. at 265. There is also
objective evidence of mild to moderate degenerative changes in his shoulders; mild areas
of ischemia in the anterior and inferior walls of his heart.3 Id. at 458, 467. Other objective
testing indicates abnormal cardiolite and symptoms suggestive of angina pectoris. Id. at
444. He has also been prescribed compression hose and instructed to elevate his legs.
Id. at 288.

3

Myocardial ischem ia is inadequate circulation of blood to the m yocardium , usually as a result of
coronary artery disease. Stedm ans Medical Dictionary 211420 (27th ed. 2000), available at W estlaw
STEDMANS.
5

On August 3 and 4, 2006, Fly was hospitalized for two days for right leg Cellulitis
and severe Venous Stasis Edema.4 Id., Tr. at 14, 261-65. He presented at the emergency
room with increased pain, redness, swelling of his right anterior shin accompanied by onset
of chills and excessive sweating the night before. Id., Tr. at 261. He also had increased
pain with ambulation, a temperature of 100 degrees, and tender enlarged lymph nodes in
the right groin area. Id. at 261, 263, 265. His final diagnoses were right leg Cellulitis;
Venous Stasis Edema, severe; Morbid Obesity; Gastroesophageal Reflux Disease;
Traumatic knee Arthritis; and Hypertension, newly treated. Id. at 261.
On August 10, 2006, Fly was again hospitalized for worsening cellulitis. Id. at 270.
Medications were changed, resulting in marked improvement in his erythema and pain.
Id. at 270. On August 22, 2006, Fly reported to the Nebraska Urban Indian Medical Center
that his cellulitis was “much better” and noted his blood pressure to be improving. Id. at
287. 5
Fly reported that he was once assessed as having an IQ of 67. Id. at 116. He also
reported that he worked informally in prison assisting other inmates with their legal cases.
Id. at 231. Fly also reported that his symptoms include “that little voice in my mind that
says do this do that.” Id. at 118. Fly also stated that his legs and feet periodically swell up
twice the normal size and makes him unable to move for a period of a week or two. Id. at
145, 147.

4

Venous stasis is im pairm ent or cessation of venous flow. See Farlex, Inc., The Free Dictionary,
http://m edical-dictionary.thefreedictionary.com /venous+stasis (last visited June 22, 2011).
5

An IQ range of 71 to 84 “is characterized as ‘borderline intellectual functioning’ and is considered to
be one step above m ild retardation.” Moore v. Astrue, 623 F.3d 599, 601 (8th Cir. 2010). An IQ score in the
high 60s is a range associated with m ild retardation. Id.
6

In early 2007, at the Commissioner’s request, Dr. Roderick Harley examined the
medical evidence and prepared a physical residual functional capacity (“RFC”)
assessment. Id. at 371-78. He noted that the claimant’s credibility was not at issue, rather
the determination hinged on duration of the claimant’s disability.6 Id. at 376. Addressing
the diagnoses of cellulitis and obesity, he found Fly had the following exertional limitations:
he could occasionally lift 50 pounds and frequently lift 25 pounds, and could stand and
walk and sit for six hours in an 8-hour day. Id. at 371-78.
The medical evidence also shows that, as part of a psychological evaluation in July
of 2005, Fly reported that he was diagnosed at age 16 as mentally retarded. Id. at 232.
He stated he had been committed to the Hastings Regional Center for two years from 1973
to 75. Id. He also stated he was committed to the Lincoln Regional Center and spent six
months on the maximum security ward now known as Forensic Mental Health Services.
Id. At age 17, he was charged with “stabbing with intent to kill, wound, or maim” and was
sentenced to 15 years at the Nebraska State Penitentiary. Id. He also reported that he
has experienced emotional difficulties that stem from witnessing the fatal shooting of his
brother and his infant nephew “killed during a big shoot out with the police in Alliance” in
1973. Id. The record shows that, in total, Fly was incarcerated for 28 years. Id. at 231.

6

Specifically, he stated:

This [claim ant] has [m edically determ inable illnesses] of acute left knee pain, and right leg
cellulitis. Obesity is also a factor, and duration is a factor as well. This [claim ant] had an
onset of leg cellulitis in 8/06 that required adm ittance to the hospital to start appropriate
treatm ent. [Claim ant] is showing im provem ent with proper m eds and treatm ent. From [acute
onset date] to 8/06, this [claim ant] should have had the ability for at least “light” work activity,
and projected to 8/07, he should have the ability for “light” work activity. As duration is an
issue, credibility is not in question.
Id. at 376.
7

Fly also reported that he had been in a car accident in 2004 and suffered a head injury.
Id. at 233. He stated that he was in surgery for six hours but was released the following
day.7 Id.
Dr. A. Jocelyn Ritchie, the consulting psychologist who conducted the evaluation,
found Fly functioned “in the low end of the Borderline Intellectual Functioning range.” Tr.
at 235. Dr. Ritchie noted that Fly's “insight” and “judgment based on his history” were both
“poor.” Id. at 234. She noted that Fly's working memory was moderately impaired. Id. at
235. Dr. Ritchie opined that Fly had no restrictions in activities of daily living, could
remember and understand short and simple instructions, and could adapt to changes in
his environment, but also “qualified” her response. Id. at 235-36. She answered a
“qualified yes” to the inquiries about difficulties in maintaining social functioning and
recurrent episodes of deterioration when stressed, and a “qualified no” to the inquiry, “is
there ability to sustain concentration and attention needed for task completion?” Id. at 235.
She also answered a “qualified yes” to whether Fly had the ability to relate appropriately
to co-workers and supervisors, ability to adapt to changes in environment and the ability
to handle his own funds. Id. at 236. There was no explanation of the meaning of the
qualified responses. Her report indicates that the medical disposition was based on the
following categories: 12.01 - Organic Brain Disorders; 12.04 - Affective Disorders; 12.06
Anxiety-related Disorders; and 12.08 Personality Disorders.8 Id. at 238. Dr. Ritchie’s

7

The record shows that Fly was involved in another autom obile accident in March 2005 and he was
treated at Bryan L.H. Medical Center W est and released. Id. at 208-230. He returned to the em ergency room
several days later com plaining of pain and a chest x-ray at that tim e revealed m ild atelectasis with scarring
in the left m id-lung and a possible fracture of the left seventh rib. Id. at 189.
8

Those categories correspond to the Listings. See 20 C.F.R. pt. 404, subpt. P, app. 1.
8

report shows that Fly has a history of significant aggression and trouble getting along with
others. Id. at 235. Dr. Ritchie gave Fly a Global Assessment of Functioning (“GAF”) score
of 55, consistent with moderate symptoms.9 Id. at 236.
On December 18, 2006, William R. Stone, Jr., Ph.D., a consulting psychologist,
evaluated Fly. Id. at 347-52. Dr. Stone indicated that mental problems had been alleged
but that no records were available. Id. at 347. Fly reported that the Lincoln Regional
Center had determined he was incompetent and treated and released him in 1976. Id. at
348.

Fly also told Dr. Stone that while in prison he was treated with Paxil, an

antidepressant, which gave him feelings of wanting to commit suicide. Id. He stated that
he has trouble adjusting to society, such as getting into fights, and has problems getting
employment or, when he does get employed, his bosses say he is too slow and cannot
keep up with the pace. Id. Fly reported a long history of violent altercations. Id. at 347.
Fly also stated that he has eight prescriptions for blood pressure, pain, and swelling, but
that he is not regularly taking the medications. Id. Dr. Stone’s report shows that Fly is
essentially homeless. Id. Fly reported that he sleeps on the streets in warm weather and
a friend sometimes lets him use the shower and stay overnight when it is cold; the Indian
Center provides Fly some meals on a regular basis. Id. at 349. He reported that he gets
temporary jobs that only last for an hour or two, so much of his time is unoccupied. Id. at
349.

9

The GAF is a num erical assessm ent between zero and 100 that reflects a m ental health exam iner’s
judgm ent of the individual’s social, occupational, and psychological function. Kluesner v. Astrue, 607 F.3d
533, 535 (8th Cir. 2010). A GAF scale score of 51-60 reflects the clinician’s opinion that a patient has
m oderate sym ptom s (e.g., flat affect and circum stantial speech, occasional panic attacks) or m oderate
difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).
Am . Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders, 34 (4th ed. 1994).
9

Based on Fly’s vocabulary and sentence structure, but not objective tests, Dr. Stone
found Fly’s intellectual functioning to be in the average range. Id. at 350. That estimate
was based on Fly’s report that he had completed high school while in prison and the
statement that he liked reading law books. Id. at 350. Dr. Stone noted, “on the other hand,
he is also reporting that he had an IQ of 75 when formally assessed at the Lincoln regional
Center many years ago.” Id. at 350.
Dr. Stone noted that Fly’s “mental status is unclear” since it can be implied that in
the past that he had a very severe mental illness and impaired cognitive functioning. Id.
at 351. Dr. Stone’s diagnosis was Anti-Social Personality Disorder and reported Morbid
Obesity. Id. at 351. In addition, Dr. Stone noted that Fly’s history “strongly suggests that
he had some serious mental illness, even symptoms of major mental illness.” Id. He also
noted that Fly’s apparent inability to adapt to the highly structured environment of prison
“raises questions about whether he may have significant psychiatric problems.” Id. at 350.
Dr. Stone did not rule out the possibility of Intermittent Explosive Disorder or some other
condition that is contributing to his violent outbursts. Id. at 351.
Dr. Stone gave Fly a GAF score in the 51-60 range, indicating moderate symptoms,
primarily as a result of his antisocial attitude and anger problems. Id. Dr. Stone opined
that Fly was psychologically capable of performing basic daily living tasks and was
maintaining minimally adequate superficial social contacts. Id. He was able to sustain
concentration and attention and capable of relating appropriately to coworkers and
supervisors on a superficial basis. Id. He found Fly was capable of adapting to ordinary
changes in his environment, managing his own funds, and understanding and
remembering short and simple instructions, probably even relatively complex and
10

complicated instructions. Id. However, he noted that records from the Regional Center
would be helpful. Id.
On January 8, 2007, Jennifer Bruning-Brown, Ph.D., a psychologist, examined the
record and completed a Mental RFC assessment. Id. at 353-55. She indicated that Fly
was not significantly limited in 16 of 20 areas of mental functioning, but was “moderately”
limited in four areas: the ability to understand and remember detailed instructions; the
ability to carry out detailed instructions; the ability to work in coordination with or proximity
to others without being distracted by them; and the ability to interact appropriately with the
general public. Id. at 353-54. Dr. Bruning-Brown also completed a Psychiatric Review
Technique Form (“PRTF”). Id. at 357-70. She indicated Fly had mild limitations in his
activities of daily living; no difficulties with maintaining concentration, persistence, or pace;
no repeated episodes of decompensation; and moderate difficulties in maintaining social
functioning. Id. at 367. Patricia Newman, Ph.D., a consulting psychologist, examined the
evidence and concurred in the Dr. Bruning-Brown’s conclusions. Id. at 393. A disability
worksheet notation dated 11/20/06 indicates that records from the Nebraska State
Penitentiary were not requested as “out of [development] period.” Id. at 380.
On January 9, 2007, Roderick Harley, M.D., a consulting physician, completed a
Physical RFC assessment. Id. at 371-79. He found that Fly should be able to perform
medium “light” work activity. Id. at 371-79. Glen Knosp, M.D., reviewed the file on March
9, 2007, and found:
No additional evidence submitted pertaining to physical allegations. Xray of
RLE [right lower extremity] in 8/06 showed no evidence of bony
abnormalities. WE has shown that the problem w/ legs swelling has
responded to treatment. His ADLS [activities of daily living sheets] have
shown that he can drive for 300 miles at a time, and is able to walk, although
11

slowly. There is no indication to change initial RFC assessment. He remains
capable of a narrowed range of medium work. I have reviewed all of the
evidence in file and the RFC of 1/9/07 is affirmed as written.
Id. at 391.
Fly was treated at the Community Mental Health Center of Lancaster County,
Nebraska, in early 2007. Id. at 386-90. The report of a pretreatment assessment by a
team of mental health practitioners shows that Fly reported that he was visited by a spirit
while in prison and the spirit instructed him to do things, usually aggressive things against
the guards. Id. at 386. He also reported that he had special powers to “manipulate the
court system.” Id. Fly denied any history of substance abuse, but the report indicates that
“when records were faxed from the Lincoln Regional Center they indicated a long history
of alcohol and marijuana abuse.” Id. at 387.
The result of the pretreatment assessment was a diagnostic impression of Psychotic
Disorder, not otherwise specified, along with “rule out” (R/O) diagnoses of “Schizophrenia,
Single Episode in Partial Remission, Unspecified Pattern; Post-traumatic Stress Disorder,
Chronic; and Anti-social Personality Disorder.”10 Id. at 388. Also, mild mental retardation
“per self report” and borderline intellectual functioning were diagnosed. Id. A GAF of 51
was assigned. Id. The report noted that:
Further evaluation is recommended to rule out Post-traumatic Stress
Disorder, and Schizophrenia, Single Episode in Partial Remission,
Unspecified Pattern based on Lavell’s report of flashbacks, witnessing
traumatic events, inability to sleep, having visual hallucination that may be
explained by these disorders. Review of previous records and a further
evaluation will aid to clarify this diagnostic picture.
10

A “rule-out” diagnosis is not a diagnosis. Amaro v. Astrue, 2011 W L 871474, *4 n.4 (C.D. Ca. 2011).
In the m edical context, a “rule-out” diagnosis m eans there is evidence that the criteria for a diagnosis m ay be
m et, but m ore inform ation is needed in order to rule it out. Id.; see also Hansen ex rel. J.H. v. Republic R-III
School Dist., 632 F.3d 1024, 1028 n.3 (8th Cir. 2011).
12

Id. at 389. The assessment and diagnoses were reviewed by Dr. Stephen Paden, who
found treatment was medically necessary. Id. at 390.
Records of a diagnostic interview in May 2007 indicate that Fly was referred to the
Community Mental Health Center by the hospital. Dr. Paden conducted the mental status
exam and found “he denies any substance abuse, although records certainly indicate that.”
Id. at 400. He noted Fly had problems with grandiosity and “special powers.” Id.

Dr.

Paden diagnosed borderline intellectual functioning and Psychosis, NOS, and ruled out
diagnoses of Schizophrenia and substance abuse. He assigned Fly a GAF score of 50,
which indicates serious symptoms.11 Id. at 400-401. The score reflected Fly’s anger and
depression problems in addition to grandiosity and “special powers.” Id.
On July 6, 2007, Richard Gustafson, M.D., a primary care treating physician,
examined Fly who returned for follow-up on his blood pressure and noted that his
hypertension was under fair control. Id. at 15, 457. Dr. Gustafson noted muscle cramps,
blisters on his feet, and possibly a fungal infection between Fly’s toes. Id.
On December 14, 2007, a right shoulder x-ray revealed degenerative changes at
the right acromioclavicular joint, mild to moderate hypertrophic changes, and prominent
joint space narrowing, but there was no evidence of acute bony abnormalities. Id. at 458.
Fly reported a flare-up of orthopedic bilateral shoulder complaints after working a
construction job. Id. at 450. Dr. Gustafson observed that Fly’s upper extremity exam
“shows really fairly poor effort as far as checking strength and ROM [range of motion] . . .

11

A GAF score of 50 reflects serious lim itations in the patient's general ability to perform basic tasks
of daily life. Brueggemann v. Barnhart, 348 F.3d 689, 695 (8th Cir. 2003) (noting that the vocational expert
considered a claim ant with a GAF of 50 unable to find any work).
13

it is really hard to tell if he has any significant rotator cuff tear or isolated weakness
because really everything I check is weak.” Id. at 450. On February 15, 2008, Dr.
Gustafson stated that Fly’s right shoulder pain did not warrant surgery and he discussed
symptomatic measures Fly could use when his shoulders flared up. Id. at 447. In addition,
the report stated that Fly’s hypertension was not well controlled. Id.
On July 9, 2008, Todd J. Tessendorf, M.D., a treating physician, performed a
cardiac evaluation because Fly reported substernal chest discomfort that was exacerbated
by physical activity. Id. at 459-60. Dr. Tessendorf noted that a nuclear scan showed “mild”
areas of ischemia in the anterior and inferior walls with a normal ejection fraction, but also
reported chest pain with “recent abnormal nuclear stress test.” Id. at 459. On July 22,
2008, Fly underwent a cardiac catheterization which revealed normal coronary arteries and
normal left ventricular function, with an ejection fraction of 60%. Id. at 467. An ECG was
also normal. Id. at 466.
C. The ALJ’s Finding
The ALJ found that Fly was not disabled. Id. at 6-53. She found that he had the
“following severe impairments: right leg cellulites (sic),12 anti-social personality disorder;
borderline intellectual functioning; history of post traumatic stress disorder, a mood disorder
with psychosis, not otherwise specified, history of hypertension, generalized left knee pain,
mild to moderate degenerative changes of the right shoulder, bilateral knee pain, and
complaints of chest discomfort.” Id. at 11.

12

Cellulitis is “Inflam m ation of subcutaneous, loose connective tissue (form erly called cellular tissue).
Stedm ans Medical Dictionary 68620 (27th ed. 2000), available at W estlaw STEDMANS.

14

She found, however, that Fly’s impairments or combination of impairments did not
meet or medically equal a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix
1, 20 C.F.R. 416.925 and 416.926 (“the Listings”). Id. at 12. She discussed only the listing
for mental retardation and found that Fly’s mental impairments, singly and in combination,
did not meet or medically equal the criteria of that listing. Id. at 12; see 20 C.F.R. Pt. 404,
Subpt. P, App. 1. In making that finding, she noted that Fly’s condition did not meet either
the paragraph B criteria or paragraph C criteria of that listing. Id. She considered “the
opinions of the state-appointed medical consultants who evaluated this issue prior to the
hearing and who likewise concluded that the claimant’s impairments did not meet or equal
the in severity the criteria of any listed impairment.” Id. at 13. She gave “significant weight”
to the opinion of Dr. Stone, a consulting psychologist and “some weight” to the opinion of
Fly’s treating psychiatrist, Dr. Paden, finding that “over the longitudinal period, the claimant
is no more limited than described in the residual functional capacity.” Id. at 17.
The ALJ concluded that Fly had “the residual functional capacity to perform light
work as defined in 20 C.F.R. 416.967(b), except the claimant has a verbal IQ of 77, a
performance IQ of 76, and a full scale IQ of 75.” Id. Further, she found that Fly has
mild problems with activities of daily living, moderate problems with social
functioning, moderate problems with concentration, persistence, and pace,
and no episodes of decompensation. The claimant can perform simple and
unskilled work, but must avoid work involving strong interpersonal skills and
complex instructions. The claimant cannot engage in heavy lifting, nor do
more than occasional kneeling, climbing, crouching or crawling. He cannot
do any work requiring special training or skills. He must be allowed to
alternate positions at regular breaks. He can only occasionally lift above the
head.
Id. Based on the testimony of the vocational expert, the ALJ found that Fly had the RFC
to perform work that exists in significant numbers in the economy. Id. at 13, 18.
15

In reaching this conclusion, the ALJ evaluated the medical evidence in light of Fly’s
subjective allegations of pain, and determined that Fly’s testimony was not fully credible
and not supported by the record. Id. at 15. She noted that Fly “complained of significant
pain after a November 2006 accident, but he was able to walk fine and the examination did
not support investigation by x-ray.” Id. at 15-16. Further she found that Fly’s treating
physician’s observations of only “mild” changes and “blisters” on the bottoms of his feet
suggested that Fly “was involved in greater physical activities than contemplated by the
above residual functional capacity.”

Id. at 16.

Also she noted that Fly “takes no

prescription medications which is inconsistent with the extent of his alleged pain and
limitations.” Id. She found his credibility “severely eroded by his poor effort during a
December 2007 exam and his later admitted ability to control his pain by non-medicinal
means.” Id.
With regard to Fly’s alleged mental problems, she found him “not as limited as he
alleges.” Id. at 17. She noted that “[t]he record does not indicate that the claimant has
ever required acute or inpatient hospitalization for mental illness.” Id. She noted that she
was “impressed that Dr. Gustafson, the claimant’s primary care physician did not
recommend more serious therapy from a mental health specialist” and noted that he “only
takes Paxil.” Id. She concluded “The claimant's lack of effort in his exams as well as his
belief that he can manipulate courts, raises questions about his motivation and supports
a finding that the claimant is not fully credible regarding his alleged mental problems.” Id.
Fly appealed the ALJ’s determination and the record indicates that additional
medical evidence was submitted to the Appeals Council, but it does not appear in the
record. Correspondence from counsel to the Appeals Council indicates:
16

Mr. Fly has informed our office that he has sought additional
medical/psychiatric care since the hearing held February 5, 2009.
Specifically, Mr. Fly has continued to treat with Community Mental Health
Center of Lancaster County for his mental health needs: Enclosed is the
March 23, 2009 letter Mr. Fly received from Lisa Young, MSN, APRN, BC in
which she opines that Mr. Fly suffers from Schizoaffective and Post
Traumatic Stress Disorder, which renders Mr. Fly unable to hold, seek or
secure gainful employment. I have requested updated records from this
facility, as well as a report from Dr. Sanat Roy, who is the Medical Director
overseeing Ms. Young. I will provide that documentation to you upon receipt
for consideration in Mr. Fly's appeal.
Id. at 4. The Appeals Council decision indicates that the Appeals Council reviews cases
if “we receive new and material evidence and the decision is contrary to the weight of all
the evidence” and stated that it had “considered the reasons you disagree with the
decision.” Id. at 1 (emphasis in original).
II. LAW
In an appeal of the denial of Social Security disability benefits, this court “must
review the entire administrative record to ‘determine whether the ALJ's findings are
supported by substantial evidence on the record as a whole’” and “‘may not reverse . . .
merely because substantial evidence would support a contrary outcome.’” Johnson v.
Astrue, 628 F.3d 991, 992 (8th Cir. 2011) (quoting Dolph v. Barnhart, 308 F.3d 876, 877
(8th Cir. 2002). Substantial evidence is that which a reasonable mind might accept as
adequate to support a conclusion. Id. (quoting Brown v. Astrue, 611 F.3d 941, 951 (8th
Cir. 2010)).
A decision supported by substantial evidence may not be reversed, “even if
inconsistent conclusions may be drawn from the evidence, and even if [the court] may have
reached a different outcome.” McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010).
Nevertheless, the court’s review “is more than a search of the record for evidence
17

supporting the [Commissioner’s] findings,” Hunt v. Massanari, 250 F.3d 622, 623 (8th Cir.
2001) (internal quotations and citations omitted), and “requires a scrutinizing analysis, not
merely a ‘rubber stamp’ of the [Commissioner’s] action.” Cooper v. Sullivan, 919 F.2d
1317, 1320 (8th Cir. 1990). The court must consider evidence that detracts from the
Commissioner’s decision in addition to evidence that supports it. Finch v. Astrue, 547 F.3d
933, 935 (8th Cir. 2008).
The court must also determine whether the Commissioner’s decision “is based on
legal error.” Lowe v. Apfel, 226 F.3d 969, 971 (8th Cir. 2000). The court owes no
deference to the Commissioner’s legal conclusions. See Juszczyk v. Astrue, 542 F.3d 626,
633 (8th Cir. 2008).
A disability is the “inability to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a continuous period of not less
than twelve months. . . .” 20 C.F.R. § 404.1505. To determine whether a claimant is
disabled, the Commissioner must perform the five-step sequential analysis described in
the Social Security Regulations. See 20 C.F.R. § 404.1520(a).

Specifically, the

Commissioner must determine: “(1) whether the claimant is engaged in any substantial
gainful activity; (2) whether the claimant has a severe impairment; (3) whether the
impairment meets or equals an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1;
(4) whether the claimant can return to [his] past relevant work; and (5) whether the claimant
can adjust to other work in the national economy.” Tilley v. Astrue, 580 F.3d 675, 678 n.9
(8th Cir. 2009); see also Kluesner v. Astrue, 607 F.3d 533, 536-37 (8th Cir. 2010).
“Through step four of this analysis, the claimant has the burden of showing that [he] is
18

disabled.” Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir. 2008). Once the analysis
reaches step five, however, “the burden shift[s] to the Commissioner to show that there are
other jobs in the economy that [the] claimant can perform.” Id.
The determination of a claimant’s RFC is an assessment of an individual’s ability to
do sustained work-related physical and mental activities in a work setting on a regular and
continuing basis, i.e., eight hours a day, five days a week, or an equivalent work schedule.
See Soc. Sec. R. 96-8p (1996). RFC is not based solely on “medical” evidence; rather, the
Commissioner must determine a claimant's RFC based on all of the relevant evidence,
including medical records, observations of treating physicians and others, and an
individual's own description of the limitations. See McKinney v. Apfel, 228 F.3d 860, 863
(8th Cir. 2000). When a claimant suffers from exertional and nonexertional impairments,
and the exertional impairments alone do not warrant a finding of disability, the ALJ must
consider the extent to which the nonexertional impairments further diminish the claimant's
work capacity. McGeorge v. Barnhart, 321 F.3d 766, 768 (8th Cir.2003) (quoting Lucy v.
Chater, 113 F.3d 905, 908 (8th Cir.1997)).
“[A] treating physician’s opinion regarding an applicant’s impairment will be granted
‘controlling weight,’ provided the opinion is ‘well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in the record.’” Prosch v. Apfel, 201 F.3d 1010, 1012-1013 (8th Cir. 2000)
(quoting 20 C.F.R. § 404.1527(d)(2) (2006)). The ALJ may discount or disregard such an
opinion if other medical assessments are supported by superior medical evidence, or if the
treating physician has offered inconsistent opinions. Hogan v. Apfel, 239 F.3d at 961. The
opinion of a consulting physician who examines a claimant once or not at all does not
19

generally constitute substantial evidence. Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir.
1998). An ALJ cannot substitute his opinion for the medical opinions. Ness v. Sullivan,
904 F.2d 432, 435 (8th Cir. 1990).
In determining whether a claimant is disabled, the ALJ is not entitled to presume that
obesity is remediable or that an individual’s failure to lose weight is “wilful.” Stone v. Harris,
657 F.2d 210, 212 (8th Cir. 1981) (characterizing the “notion that all fat people are
self-indulgent souls who eat more than anyone ought” as nothing more that “baseless
prejudice of the intolerant svelte”). ALJs are to consider the combined effects of obesity
when evaluating disability. Soc. Sec. R. 02-1P, 2000 WL 628049, *1 (Sept. 12, 2002).
Obesity may, by itself, meet or equal a listed impairment. Id. at *5. Obesity affects the
cardiovascular and respiratory systems because of the increased workload the additional
body mass places on these systems. Id. (noting that the combination of a pulmonary or
cardiovascular impairment and obesity has signs, symptoms, and laboratory findings that
are of equal medical significance to one of the respiratory or cardiovascular listings.)
The Medical-Vocational Guidelines, a grid that accounts for an individual’s RFC and
various other vocational factors, such as age and educational background, is included in
the regulations to provide guidance at step five of the sequential analysis. See 20 C.F.R.
pt. 404, subpt. P, app. 2. “Where the findings of fact made with respect to a particular
individual’s vocational factors and residual functional capacity coincide with all of the
criteria of a particular rule, the rule directs a conclusion as to whether the individual is or
is not disabled.” 20 C.F.R. Pt. 404, subpt. P, app. 2, § 200.00. If a mental impairment
affects the claimant’s ability to meet job demands other than strength, the MedicalVocational Guidelines are not directly applied but “provide a framework to guide [the]
20

decision.” 20 C.F.R. § 404.1569a(d). Under the Medical-Vocational Guidelines, an
individual who is “closely approaching advanced age”—that is, age fifty to fifty-four—is
disabled if his maximum sustained work capability is limited to sedentary work as a result
of severe medically determinable impairments and he has “limited or less” education or is
a high school graduate or more without a recently completed education that provides for
direct entry into sedentary work, and he has no past relevant work experience or only
unskilled work experience. See 20 C.F.R. § 201.00(g) and Table 1.
A vocational expert’s testimony constitutes substantial evidence only when it is
based on a hypothetical that accounts for all of the claimant’s proven impairments. Hulsey
v. Astrue, 622 F.3d 917, 922 (8th Cir. 2010). “The hypothetical ‘need not frame the
claimant’s impairments in the specific diagnostic terms used in medical reports, but instead
should capture the concrete consequences of those impairments.’” Id. (quoting Lacroix v.
Barnhart, 465 F.3d 881, 889 (8th Cir. 2006) (internal quotation omitted)). A vocational
expert must take a claimant’s medical limitations into account and offer an opinion on the
ultimate question whether a claimant is capable of gainful employment. See Kelley, 133
F.3d at 589.
A claimant’s subjective complaints may be din the record as a whole, but the ALJ
may not discount subjective complaints of pain solely because they are not fully supported
by objective medical evidence. Ellis v. Barnhart, 392 F.3d 988, 996 (8th Cir. 2005). When
assessing the credibility of a claimant’s subjective allegations of pain, the ALJ must
consider the claimant’s prior work history; daily activities; duration, frequency, and intensity
of pain; dosage, effectiveness and side effects of medication; precipitating and aggravating
factors; and functional restrictions. See Polaski v. Heckler, 739 F.2d 1320, 1322 (8th
21

Cir.1984). When an ALJ rejects a claimant’s complaints of pain, he or she must make an
express credibility determination detailing reasons for discrediting the testimony, must set
forth the inconsistencies, and must discuss the Polaski factor. Kelley v. Callahan, 133 F.3d
583, 588 (8th Cir. 1998).
“‘[S]ocial security hearings are non-adversarial,’ and an ALJ has a duty to fully
develop the record, even when the claimant is represented by an attorney.” Johnson v.
Astrue, 627 F.3d 316, 320 (8th Cir. 2010) (quoting Snead v. Barnhart, 360 F.3d 834, 838
(8th Cir.2004). Accordingly, “[a]n ALJ should recontact a treating or consulting physician
if a critical issue is undeveloped.” Id. However, the ALJ is required to order medical
examinations and tests only if the medical records presented do not give sufficient medical
evidence to determine whether the claimant is disabled. Id.
III. DISCUSSION
The issue before the court is whether there is substantial evidence based on the
record as a whole, to support the ALJ’s conclusion that, considering Fly’s age, education,
work experience, and residual functioning capacity, there are jobs that exist in significant
numbers in the economy that Fly can perform. The court finds that there is not.
The ALJ erred in several important respects. First, she failed to adequately develop
the record. There was credible evidence that Fly had received extensive mental health
treatment in the past. Several treating as well as consulting mental heath professionals
noted that the records were necessary. There is no support for the ALJ’s assertion that
there was no indication that Fly had ever had inpatient mental health treatment. Fly
testified to that fact, reported it to healthcare practitioners, and the fact was corroborated
by the statement of his friend. Fly was given “rule out” diagnoses of several serious mental
22

illnesses. His history and present homeless situation supports those diagnoses. Further,
the ALJ erred in not obtaining physical and mental RFC assessments from Fly’s treating
physicians. The ALJ improperly credited the opinions of consulting psychologists and
physicians over the diagnoses and reports of Fly’s treating physicians and psychiatrists.
The ALJ improperly relied on the report of consulting physicians who had never examined
Fly, and had only reviewed medical records, to establish Fly’s physical residual functional
capacity.
Further, the ALJ erred in failing to credit Fly’s subjective complaints. The court finds
that the record contains objective evidence that supports Fly’s subjective reports of
debilitating leg pain and swelling. There is objective evidence that Fly suffers from severe
valvular incompetence in his lower extremities.13 The ALJ committed further error by failing
to consider the effect of Fly’s morbid obesity on his other conditions. Fly has been
diagnosed with morbid obesity by every doctor who has examined him. The ALJ did not
address Fly’s morbid obesity in the contest of his exertional limitations, nor did she
acknowledge the physical limitations that would result from that condition. Further, she
ignored both Fly’s testimony that he had to elevate his legs and his physician’s
recommendation that he do so. Although Fly’s cellulitis may have improved or resolved
after an extended course of antibiotics, his chronic leg pain and swelling is a separate
issue, and separate from his knee pain also.
The ALJ also erred in discrediting Fly’s subjective complaints of shoulder pain, chest
pain, shortness of breath, and lack of cognitive ability and problems with social interaction

13

Venous insufficiency is inadequate drainage of venous blood from a part, resulting in edem a or
derm atosis. Stedm ans Medical Dictionary 205100 (27th ed. 2000), available at W estlaw STEDMANS.
23

and anger management. All of those complaints are supported by objective evidence in
the record and all place additional limitations on Fly’s ability to perform work that exists in
the national economy. Medical records show repeated visits to primary care doctors with
long-standing complaints of pain and Fly has undergone several procedures and tests.
Those doctor visits and procedures lend credence to his subjective complaints. Also, the
ALJ placed inordinate weight on Fly’s failure to use pain medications in discounting Fly’s
credibility. There is no evidence that pain medication would alleviate the edema and
venous insufficiency. The record does not support the ALJ’s statement that Fly had
“admitted ability to control his pain by non-medicinal means.” The record shows only that
his doctor discussed “symptomatic relief.”

Moreover, Fly’s daily activities are not

inconsistent with chronic, severe pain.
Further, the ALJ mischaracterizes the record and places inordinate emphasis on
inconsequential or unimportant facts and offhand references. Fly’s treating physician’s
reference to “poor effort” is meaningless in the context of the doctor’s later conclusion that
Fly was “weak all over.” Fly’s treating psychiatrist’s recounting of Fly’s statements about
“having special powers” and “manipulating the legal system,” in context, relate more to the
findings of grandiosity or delusions, than to showing a lack of credibility.
The evidence of record does not support the conclusion that Fly could perform light
work in the national economy. The vocational expert’s testimony to that effect was based
on the assumption that Fly could stand, sit, or walk for six hours out of an eight-hour day.
There is no support for that conclusion in the record. It is based on the testimony of a
consulting physician who did not examine Fly and that does not constitute substantial
evidence on which to base a finding of no disability.
24

The evidence in the record as a whole supports the conclusion that Fly is capable
of only sedentary work. If Fly were found capable of only sedentary work, considering his
age, education, work experience and residual functional capacity, the Medical-Vocational
Guidelines would direct a finding that he is disabled.
Moreover, the ALJ did not consider the combined effects of Fly’s acknowledged
severe impairments. The record is replete with medical evidence that shows that Fly
suffers leg pain and swelling, is morbidly obese, is moderately limited intellectually, and
has a mental illness or illnesses that interfere with his ability to interact with people
appropriately. The ALJ’s hypothetical to the vocational expert did not capture the concrete
consequences of his disabilities. The record shows that Fly was diagnosed with several
mental illnesses in addition to borderline intellectual functioning and there is credible
evidence that he was committed to mental institutions in the past. The ALJ’s finding that
Fly had severe impairments that did not meet the listings and that Fly retained the RFC to
do light work was based solely on the opinion of a consulting physician who reviewed Fly’s
medical records.
The court finds that the record as a whole does not contain substantial evidence to
support the ALJ’s conclusion that Fly can perform light work in three occupations. The
court sees no reason to further prolong this case. Reversal and remand for an immediate
award of benefits is the appropriate remedy where the record overwhelmingly supports a
finding of disability. Pate-Fires v. Astrue, 564 F.3d at 947; see also Parsons v. Heckler,
739 F.2d 1334, 1341 (8th Cir.1984) (“Where further hearings would merely delay receipt
of benefits, an order granting benefits is appropriate.”). Here, the clear weight of the

25

evidence fully supports a determination that Fly was disabled within the meaning of the
Social Security Act as of October 10, 2006, and is entitled to benefits as of that date.
Accordingly, the decision of the ALJ is reversed and this action is remanded to the
Commissioner for an award of benefits.
IT IS ORDERED:
1. The decision of the ALJ is reversed.
2. This action is remanded to the Commissioner for an award of benefits.
3. A final judgment will be entered in accordance with this memorandum opinion.
DATED this 31st day of August, 2011.
BY THE COURT:

s/ Joseph F. Bataillon
Chief United States District Judge

*This opinion m ay contain hyperlinks to other docum ents or W eb sites. The U.S. District Court for
the District of Nebraska does not endorse, recom m end, approve, or guarantee any third parties or the services
or products they provide on their W eb sites. Likewise, the court has no agreem ents with any of these third
parties or their W eb sites. The court accepts no responsibility for the availability or functionality of any
hyperlink. Thus, the fact that a hyperlink ceases to work or directs the user to som e other site does not affect
the opinion of the court.
26