Brown v. Colvin

Filing 24

MEMORANDUM AND ORDER - The decision of the Commissioner is reversed pursuant to sentence four of 42 U.S.C. § 405(g) and the case is remanded for further proceedings consistent with the foregoing opinion. Final judgment will be entered by separate document. Ordered by Senior Judge Richard G. Kopf. (AOA)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA

JACK JAY BROWN,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of the
Social Security Administration,
Defendant.

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4:12CV3260

MEMORANDUM
AND ORDER

Plaintiff, Jack Jay Brown, brings this suit to challenge the Social Security
Commissioner’s final administrative decision denying his applications for disability
insurance benefits (“DIB”) and supplemental security income (“SSI”) under Titles II
and XVI of the Social Security Act, 42 U.S.C. §§ 401-434, 1381-1383f.1 For the
reasons discussed below, the Commissioner’s decision will be reversed and the case
will be remanded for further proceedings.
I. PROCEDURAL BACKGROUND
Plaintiff is a 50-year-old man who has a high school education and experience
working as a truck driver and laborer. He last worked on December 1, 2008, and
claims to be disabled because of back problems.
Plaintiff’s applications for DIB and SSI were denied initially on April 1, 2010
(Transcript (“Tr.”) (CM/ECF filing 13) 60). The applications were also denied on
reconsideration, on August 11, 2010, with the Commissioner explaining:
1

Sections 205(g) and 1631(c)(3) of the Act, 42 U.S.C. §§ 405(g) and
1383(c)(3), provide for judicial review of the Commissioner’s final administrative
decisions under Titles II and XVI.

You said that you are unable to work because of back injury.
The medical evidence shows you do have a history of the above
conditions and some of your activities are limited. The current review of
the medical evidence shows your condition prevents you from
performing heavy physical labor and repetitive bending/stooping. While
your physical health does limit some of your activities the medical
evidence shows you are able to move about and lift/carry lighter types
of objects in a satisfactory manner with the above restrictions.
The medical evidence in reference to your mental health shows your
mental health would not significantly limit your ability to perform work
activities.
We realize your condition prevents you from doing your past jobs but it
does [not] prevent you from doing other types of work that is lighter and
less strenuous. Thus, we are still unable to show you meet the guidelines
for receiving disability benefits at this time.
(Tr. 67).
Following these denials, Plaintiff filed a request for an administrative hearing
(Tr. 78-79). Robert J. Burbank, an administrative law judge (“ALJ”), conducted a
hearing by video teleconferencing on January 18, 2012 (Tr. 26-49). Plaintiff was
represented by counsel and testified at the hearing. A vocational expert, James Adams,
also provided testimony. The ALJ issued an unfavorable decision on February 9,
2012, concluding that although Plaintiff is unable to perform any past relevant work,
he is not disabled. Using the 5-step sequential analysis prescribed by Social Security
regulations,2 the ALJ made the following findings:
2

The Eighth Circuit has described the procedure as follows:

At the first step, the claimant must establish that he has not
engaged in substantial gainful activity. The second step requires that the
claimant prove he has a severe impairment that significantly limits his
physical or mental ability to perform basic work activities. If, at the third
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1. The claimant meets the insured status requirements of the Social
Security Act through December 31, 2010.
2. The claimant has not engaged in substantial gainful activity since
December 1, 2008, the amended alleged onset date (20 CFR 404.1571
et seq., and 416.971 et seq.).
3. The claimant has the following severe impairment: degenerative
disc disease/osteoarthritis (20 CFR 404.1520(c) and 416.920(c)).
***
Additionally, a review of the medical record reflects the impairments of
migraines (Exhibits 6F, pg. 6 and l0F, pg. 5); status-post kidney donation
(Exhibits 4F and 6F, pg. 6); mood disorder and personality disorder
(Exhibits 9F, pg. 1 and 11F, pg. 4). However, the claimant received a
GAF of 60 upon discharge from the hospital in February 2010 and a
GAF of 55 in March 2010 (Exhibits 9F, pg. 1 and 11F, pg. 5). Further,
the medical record does not show a limitation in the claimant’s ability to
perform basic work activities due to these impairments and therefore, the
undersigned finds that they are non-severe.
***
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the

step, the claimant shows that his impairment meets or equals a
presumptively disabling impairment listed in the regulations, the analysis
stops and the claimant is automatically found disabled and is entitled to
benefits. If the claimant cannot carry this burden, however, step four
requires that the claimant prove he lacks the [residual functional capacity
(“RFC”)] to perform his past relevant work. Finally, if the claimant
establishes that he cannot perform his past relevant work, the burden
shifts to the Commissioner at the fifth step to prove that there are other
jobs in the national economy that the claimant can perform.
Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006) (footnote omitted).
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listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20
CFR 404.1520(d), 404.1525,404.1526, 416.920(d), 416.925 and
416.926).
The claimant has a “severe” physical impairment within the meaning of
the applicable regulations, but this impairment does not meet or
medically equal any of the listed impairments including 1.04. The
claimant does not allege that he has an impairment of listing level
severity nor has he met his burden of presenting medical evidence that
supports such a finding. The undersigned has reviewed the medical
evidence of record in its entirety and finds that the claimant’s
impairment does not meet or equal the level of severity set forth in any
of the listed impairments. The claimant’s condition does not meet the
requirements of Listing 1.04 because the claimant does not have
evidence of nerve root compression, or spinal arachnoiditis, or lumbar
spinal stenosis resulting in pseudoclaudication.
5. After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b), in that the claimant can lift up to twenty pounds
occasionally and lift or carry up to ten pounds frequently; stand
and/or walk for six hours out of an eight-hour workday; and sit for
six hours out of an eight-hour workday. Further, the claimant is
occasionally able to reach in all directions, climb, balance, stoop,
kneel, crouch, and crawl, and should avoid concentrated exposure
to vibrations and hazards.
***
On the amended alleged disability onset date, the claimant was a 45-year
old man who asserts that he is unable to work due to a back injury and
lumbar fractures (Exhibits 4E, pg. 1; 12E, pg. 2; and 24E). At the
hearing, the claimant testified that his back pain started when he broke
his back in 2002, his pain is currently an “8” or “9” on a scale of 1-10,
it extends to his feet and hands, causes migraines and difficulties
sleeping, and he was terminated from his prior job as a truck driver due
to his pain. The claimant also testified that he lies down two to three
times a day to alleviate his pain, he has difficulties moving his legs, his
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legs tingle and have pressure, and he uses a cane for balance. Regarding
his physical abilities, the claimant testified that he can stand for 5-15
minutes, walks every 30 minutes, sits for half the day, and that sitting is
his most comfortable position, but he could not work a “desk job”
because his back pain is too severe. Further, the claimant testified that he
tries to walk for exercise, does some chores “as [he] can” including
sweeping, washing the dishes, feeding the dogs and doing laundry.
Previously, the claimant stated that he cooks, can drive for one and a half
hours, sits and watches television, and can sit for two to three hours at
one time with breaks, but is not able to do much due to pain (Exhibits
13E and 14E).
The undersigned finds that the claimant is limited to light exertional
work, with the restrictions noted above, because of his impairment.
Solely for historical perspective, the medical record reveals that the
claimant suffered a spinal fracture and underwent an MRI in June 2002
that revealed degenerative disc disease without severe focal spinal
stenosis or compression of the thoracic spinal cord as well as
degenerative signal in the lumbar spine. An MRI of his cervical spine in
August 2002 revealed only “very minor” disc bulging (Exhibits 1F and
2F, pgs. 7-9). That same month, x-rays of the claimant’s lumbar spine
revealed only “mild” degenerative changes (Exhibit 5F, pg. 53).
Subsequently, Timothy J. Birney, M.D., submitted a Worker’s
Compensation opinion in April 2003 that the claimant has a combined
impairment of 14%, could work part-time at the medium exertional level,
and work full-time at the light and sedentary exertional levels with
alternating positions (Exhibit 5F, pgs. 61-64). Despite Dr. Birney’s
treating relationship with the claimant, the undersigned does not give his
opinion controlling weight, but instead gives it partial weight because the
medical record, including the objective imaging, indicates that the
claimant is able to work full-time at both the light and sedentary
exertional levels. However, Dr. Birney’s opinion is remote in time,
Social Security uses different standards for evaluating disability that [sic]
Worker’s Compensation, and whether an individual is disabled or able
to work is an issue reserved for the Commissioner (20 CFR §§
404.1527(e), 416.927(e); SSR 96-Sp, 61 Fed. Reg. at 34472).

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Similarly, the claimant underwent a Functional Capacity Evaluation in
March 2003 that opined he could work part-time at the medium
exertional level, work full-time at the light and sedentary exertional
levels, would benefit from alternating positions, and could occasionally
sit, stand, walk, climb stairs utilizing bilateral handrails and should limit
overhead reaching to a minimum (Exhibit 5F, pgs. 14-45). As with Dr.
Birney’s opinion, the undersigned gives these opinions partial weight
because the medical record, including the objective imaging, shows that
the claimant is able to work full-time at both the light and sedentary
exertional levels. However, these opinions were rendered by
non-acceptable medical sources, they are remote in time, Social Security
uses different standards for evaluating disability that [sic] Worker’s
Compensation, and whether an individual is disabled or able to work is
an issue reserved for the Commissioner (20 CFR §§ 404.1527(e),
416.927(e); SSR 96-Sp, 61 Fed. Reg. at 34472).
Several years later, the claimant presented for a medical consultative
examination with Leland F. Lamberty M.D., in January 2007 who noted
that he “seemed to be in discomfort during the examination, but there are
little else in the way of findings.” Dr. Lamberty determined that the
claimant had chronic back pain and intermittent numbness and tingling
in his left lower extremity, and opined that he should not repetitively lift,
twist or bend and would have difficulty working as a truck driver, but
could perform sedentary work (Exhibit 6F). The undersigned gives Dr.
Lamberty’s opinion little weight because he only examined the claimant
one time and his opinion is remote in time, in that it was rendered nearly
two years prior to the claimant’s amended alleged onset date.
More recently, the claimant underwent another medical consultative
examination with David Lindley, M.D., in March 2010. Dr. Lindley
noted that x-rays of the claimant’s lumbosacral spine revealed loss of
lumbar lordosis with only “mild” muscle spasm, abnormalities of the L4
and L5 vertebral bodies, and sclerotic changes. After examination, Dr.
Lindley diagnosed the claimant with osteoarthritis with an old injury at
L4 and L5 as well as back pain, and opined that “he has not been deemed
a candidate for surgery and is getting increasing disability related to this”
(Exhibit l0F). The undersigned gives Dr. Lindley’s opinion little weight
because he only examined the claimant one time, it is inconsistent with
the objective medical evidence that shows relatively benign findings, and
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whether an individual is disabled is an issue reserved for the
Commissioner (20 CFR §§ 404.1527(e), 416.927(e); SSR 96-Sp, 61 Fed.
Reg. at 34472) (Exhibits 1F; 2F, pgs. 7-9; and 5F, pg. 53).
The State agency medical consultants opined that the claimant could
perform work at the light exertional level with some postural,
manipulative and environmental limitations (Exhibits 13F and 15F; see
also Exhibit 7F rendered prior to the amended alleged onset date also
opining to light exertional work). The undersigned gives the opinions of
the State agency medical consultants’ [sic] significant weight because
they were rendered after a review of the medical record and the
consultants are familiar with the definitions and evidentiary standards
used by the Agency. Further, they are consistent with each other and the
medical record including the objective imaging (Exhibits 1F; 2F, pgs.
7-9; and 5F, pg. 53).
After considering the evidence of record, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be
expected to produce the alleged symptoms, but that the claimant’s
statements concerning the intensity, persistence and limiting effects of
these symptoms are generally not fully credible. The claimant is able to
engage in a wide range of activities of daily living that could translate
into performing a job including household chores such as sweeping,
washing the dishes, feeding the dogs, and laundry. Therefore, the
claimant is capable of performing basic work activities consistent with
the residual functional capacity stated above.
While the medical record evidences that the claimant has degenerative
disc disease/osteoarthritis, there is insufficient evidence in the record to
support the level of limitation alleged by the claimant. On the contrary,
there are few objective findings and what objective evidence does exist
is relatively benign (Exhibits 1F; 2F, pgs. 7-9; and 5F, pg. 53). Further,
the medical record indicates minimal treatment since his amended
alleged onset date and gaps in treatment. While the claimant testified that
he uses a cane for balance, there is no indication in the medical record
that it was prescribed. Further, despite his allegations of severe pain, the
claimant was in no apparent distress at the hearing and testified that he
sits most of the day, which is his most comfortable position.
Additionally, the claimant’s migraines, status-post kidney donation,
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mood disorder, and personality disorder were determined to be
non-severe.
The undersigned further notes that the claimant testified that he has not
received medical treatment because he is unable to afford it. However,
the claimant also testified that he smokes cigarettes. Whether the
claimant obtains cigarettes by buying them himself, borrowing money,
or getting them from friends or family, his credibility is diminished
because there is no indication that he has put as much energy or effort
into finding alternative means to obtain medical treatment as he has put
into obtaining cigarettes, despite his alleged lack of financial resources.
The evidence does not document that the claimant was ever refused
treatment or medication for any reason, including insufficient funds.
Further, there is no persuasive evidence that the claimant ever sought the
aid of any available public or private institution, program, or individual,
to help defray the cost of treatment. Thus, the claimant’s assertions that
a lack of financial resources prevents his from getting treatment are
unconvincing. If his impairments were truly as limiting and caused as
much misery as the claimant has alleged, it seems that he would pursue
regular medical care more diligently.
Accordingly, based upon the objective evidence, the claimant’s course
of treatment, his level of daily activity and his work history, the
undersigned has determined that the claimant retains the residual
functional capacity for work at the light exertional level due to his
degenerative disc disease/osteoarthritis. Further, the claimant’s
degenerative disc disease/osteoarthritis causes limitations including
occasionally being able to reach in all directions, climb, balance, stoop,
kneel, crouch and crawl, and should avoid concentrated exposure to
vibrations and hazards. Weighing all relevant factors, the undersigned
finds that claimant’s subjective complaints do not warrant any additional
limitations beyond those established in the residual functional capacity
previously outlined in this decision. This residual functional capacity is
based on the entire medical record and adjusted to give the claimant the
benefit of the doubt with regard to his allegations of disability.
6. The claimant is unable to perform any past relevant work (20
CFR 404.1565 and 416.965).

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The vocational expert stated that the claimant has the following past
work: laborer (DOT# 421.687-010, heavy, unskilled, SVP 2); laborer
(DOT# 851.383-010, heavy, skilled, SVP 5); tire repairer (DOT#
915.684-010, heavy, semi-skilled, SVP 3); and semi-truck driver (DOT#
904.383-010, medium, semi-skilled, SVP 4) (Exhibit 25E).
In response to my questions that assumed the existence of a hypothetical
individual of the claimant’s age, education, past relevant work
experience and residual functional capacity, the vocational expert
testified that such an individual could not perform any of the claimant’s
past work. The undersigned accepts the vocational expert’s testimony
and finds that the claimant is not capable of performing his past relevant
work
7. The claimant . . . was 45 years old, which is defined as a younger
individual age 18-49, on the amended alleged disability onset date
(20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR
82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
***
If the claimant had the residual functional capacity to perform the full
range of light work, a finding of “not disabled” would be directed by
Medical-Vocational Rule 202.21. However, the claimant’s ability to
perform all or substantially all of the requirements of this level of work
has been impeded by additional limitations. To determine the extent to
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which these limitations erode the unskilled light occupational base, the
Administrative Law Judge asked the vocational expert whether jobs exist
in the national economy for an individual with the claimant’s age,
education, work experience, and residual functional capacity. The
vocational expert testified that given all of these factors the individual
would be able to perform the requirements of representative occupations
such as: order clerk (DOT# 209.567-014) a sedentary, unskilled position
with 1,500 jobs available in Nebraska and 211,370 jobs available
nationally; surveillance systems monitor (DOT# 379.367-010) a
sedentary, unskilled position with 500 jobs available in Nebraska and
79,280 jobs available nationally; and charge-account clerk (DOT#
205.367-014) a sedentary, unskilled position with 1,500 jobs available
in Nebraska and 204,730 jobs available nationally. Pursuant to SSR
00-4p, the undersigned has determined that the vocational expert’s
testimony is consistent with the information contained in the Dictionary
of Occupational Titles.
Based on the testimony of the vocational expert, the undersigned
concludes that, considering the claimant’s age, education, work
experience, and residual functional capacity, the claimant is capable of
making a successful adjustment to other work that exists in significant
numbers in the national economy. A finding of “not disabled” is
therefore appropriate under the framework of the above-cited rule.
11. The claimant has not been under a disability, as defined in the
Social Security Act, from December 1, 2008, through the date of this
decision (20 CFR 404.1520(g) and 416.920(g)).
(Tr. 13-20 (bold-face type and other emphasis in original)).
Plaintiff requested review of the ALJ’s decision by the Appeals Council (Tr. 6).
The request was denied on November 7, 2012 (Tr. 1-3). The ALJ’s decision thereupon
became the final decision of the Commissioner. See Van Vickle v. Astrue, 539 F.3d
825, 828 (8th Cir. 2008).
Plaintiff filed this action on December 28, 2012. The filing was timely under
42 U.S.C. § 405(g).
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II. ISSUES
Plaintiff contends the ALJ erred by failing to (1) identify all of Plaintiff’s
“severe” impairments, (2) make a proper assessment of Plaintiff’s credibility, (3) give
appropriate weight to medical opinions, (4) make a proper RFC assessment, and (5)
make a correct “step 5” disability determination.
III. DISCUSSION
The applicable standard of review is whether the Commissioner’s decision is
supported by substantial evidence on the record as a whole. See Finch v. Astrue, 547
F.3d 933, 935 (8th Cir. 2008). “ Substantial evidence is less than a preponderance
but is enough that a reasonable mind would find it adequate to support the
conclusion.” Id. (internal quotations and citations omitted). Evidence that both
supports and detracts from the Commissioner’s decision should be considered, but a
final administrative decision is not subject to reversal by a reviewing court merely
because some evidence in the record may support a different conclusion. See id.
Questions of law, however, are reviewed de novo. See Olson v. Apfel, 170 F.3d 822
(8th Cir. 1999); Boock v. Shalala, 48 F.3d 348, 351 n. 2 (8th Cir. 1995).
A. Plaintiff’s Physical Impairments
The ALJ determined at step 2 of the sequential analysis that Plaintiff is severely
impaired by “degenerative disc disease/osteoarthritis” (Tr. 13). No other “severe”
physical impairments were found to exist.3 Plaintiff contends the ALJ committed

3

“An impairment is not severe if it amounts only to a slight abnormality that
would not significantly limit the claimant’s physical or mental ability to do basic work
activities.” Kirby v. Astrue, 500 F.3d 705, 707-08 (8th Cir. 2007) (citing Bowen v.
Yuckert, 482 U.S. 137, 153 (1987); 20 C.F.R. § 404.1521(a)). “If the impairment
would have no more than a minimal effect on the claimant’s ability to work, then it
does not satisfy the requirement of step two.” Id.
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reversible error at step 2 by overlooking or ignoring a diagnosis of “[c]ongenital/
developmental cervical stenosis C3 to C6, with early symptoms of cervical
myelopathy,” that was made by Timothy J. Birney, M.D., in 2002 (Tr. 530).4
Dr. Birney, who is an orthopaedic surgeon, first saw Plaintiff on June 27, 2002
(Tr. 535-539). Plaintiff reported he started experiencing bilateral hand and forearm
numbness, along with bilateral elbow pain, in August 2001 (Tr. 535). After suffering
a work-related injury to his upper back in May 2002, Plaintiff also began noticing

4

“Cervical stenosis is the narrowing of the spinal canal in the neck region and
can occur from several causes, among them disc herniation and degenerative disc
disease, or spondylosis. With advanced stenosis, nerve root and spinal cord
compression can occur, with symptoms varying from mild to very serious.... When
compression results in damage to the spinal cord, it is termed myelopathy.” New York
University Hospital for Joint Diseases Spine Center, “Patient Education, Neck and
Arm Pain, Cervical Stenosis and Myelopathy,” http://hjd.med.nyu.edu/spine/patienteducation/spine-problems/neck-and-arm-pain/cervical-stenosis-and-myelopathy.
“Cervical spinal stenosis can develop from congenital pathology (the patient is
born with a narrow spinal canal). This setting leaves the spinal cord vulnerable to
compression from acquired degenerative disease processes or degenerative disease in
which bony overgrowth and disc degeneration (herniation) further narrow the spinal
canal over time.” Id.
“Symptoms from cervical spinal stenosis without spinal cord compression are
usually limited to neck pain and symptoms from nerve root compression. They
include sensory changes of tingling, numbness, and paresthesias in the upper
extremity. These symptoms can overlap with those of developing cervical myelopathy
... and can include a gradual progression of clumsiness, weakness, or numbness in the
hands or fingers.” Id.
“Dysfunction of the spinal cord is termed myelopathy. The dysfunction can
result from many sources including cervical stenosis and herniated discs.... Regardless
of the precise form of damage, the spinal cord responds in a characteristic way,
producing weakness in the limbs (legs, or legs in combination with arms), tightness
or spasticity of movement, altered sensation, and even incontinence.” Id.
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bilateral lower extremity numbness that would last for a few minutes each morning
upon awakening (Tr. 535-536).
Upon examination, Dr. Birney found mild tenderness to palpation at C3-4 and
from C5 to C7, but greater tenderness from palpation in the thoracic spine (Tr. 536).
In the lumbar spine Plaintiff had mild tenderness to palpation at L5-S1 and nowhere
else (Tr. 537). Dr. Birney viewed x-rays of Plaintiff’s lumbar spine taken on June 13,
2002, which showed only mild degenerative changes (Tr. 579). He also reviewed the
radiologist’s report for MRIs that were performed on June 19, 2002. The report noted
“[d]egenerative disc disease with multiple Schmorl’s nodes throughout the thoracic
spine, but without severe focal spinal stenosis or compression of the thoracic spinal
cord” (Tr. 377). The report also noted “[a]nteriorly wedged morphology of the T12
and L1 vertebrae,” which could be either developmental, related to the Schmorl’s
nodes, or degenerative (Tr. 378). There was “no evidence of lumbar spinal stenosis
or compression of the lumbar nerve roots” (Tr. 378).
Dr. Birney’s initial diagnostics impressions included: “1. Acute interscapular
pain, secondary to work related blunt trauma .... 2. Probable bilateral carpal tunnel
syndrome. 3. Transient morning diffuse bilateral lower extremity numbness, etiology
unclear .... 4. Bilateral epicondylitis, work related” (Tr. 538). Dr. Birney told Plaintiff
he had Scheuermann’s disease of the thoracolumbar region, but stated “this really is
not his symptomatic area” (Tr. 539). He prescribed physical therapy for this particular
complaint (Tr. 539). He also recommended neurological testing to confirm the carpal
tunnel syndrome and to attempt to find a reason for the morning numbness in both
legs (Tr. 538).
On July 24, 2002, Dr. Birney reviewed the MRIs from June 19, 2002. In the
thoracic spine MRI, Dr. Birney saw “evidence of congenital/developmental anterior
wedging at the thoracolumbar junction, consistent with Scheuermann’s kyphosis,
along with diffuse Schmorl’s node formation from the L1 level up to about the T5
region,” but “no evidence of disc herniation or other sources of neural impingement”
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(Tr. 533). Reviewing the MRI of Plaintiff’s lumbosacral spine, Dr. Birney observed
“evidence of loss of signal intensity at the L3-4, L4-5 and L5-S1 disc space levels”
and “[c]entral annular bulging ... from L3 to the sacrum, but without stenosis or
lateralizing nerve impingement” (Tr. 533). He also noted “developmental anterior
wedging ... at T12 and L1” but saw “no evidence of neural impingement” (Tr. 533).
Dr. Birney ordered an MRI of Plaintiff’s cervical spine, which was performed
on August 5, 2002. The radiologist reported “[v]ery minor bulging of the discs at C3C4 and at C5-C6 with minor flattening of the anterior wall of the thecal sac at these
levels,” but saw “no significant congenital spinal stenosis” and “[n]o other significant
abnormality” (Tr. 379). However, when Dr. Birney reviewed the MRI on August 21,
2002, he made the following observations:
The patient’s sagittal views show evidence of what appear to be mild
broad disc protrusions at C3-4 and C5-6, in the context of an underlying
congenital/developmental stenosis from C3 to C6, given that the patient
has narrowing of the anterior and posterior subarachnoid spaces through
those vertebral levels.
On the patient’s axial views, I see no evidence of neural impingement at
C2-3. At C3-4, the patient appears to have a mild broad disc protrusion
at the level of the disc space, but slightly below the level of the disc
space there appears to be some degree of disc protrusion and posterior
osteophytic ridging which in combination with a congenital/
developmental stenosis, do result in a diminished AP canal dimension.
His AP canal dimension there appears to measure almost 9 mm. At C4-5,
there may be some mild posterior osteophytic ridging there, along with
congenital/developmental stenosis that results in an AP canal dimension
of about 10mm. At C5-6, the patient appears to have a broad disc
protrusion with posterior osteophytic ridging that narrows both neural
foramina and results in an AP canal dimension of about 9 mm. I see no
evidence of neural impingement at C6-7 or at C7-T1.
(Tr. 532).

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Dr. Birney then telephoned Plaintiff to explain the MRI findings. His notes
show the following discussion took place:
I explained to him that in the context of a congenital/developmentally
narrowed canal, even mild disc protrusions and posterior osteophytic
ridging can result in spinal stenosis that could be the cause of his current
upper extremity complaints He reminds me that he also gets numbness
in both lower extremities. He wanted to know how to proceed. I
explained to him that very little can be done to enlarge his spinal canal,
although he certainly could pursue Physical Therapy (PT) measures once
again. Perhaps an epidural steroid injection might be effective, although
unpredictable. If he feels he is experiencing progressive neurologic
deterioration over time, then of course there is always the option of
anterior decompression and fusion from C3 to C6. He does not appear
to be sufficiently symptomatic to warrant surgery of this magnitude.
(Tr. 532).
Plaintiff received two cervical epidural steroid injections, on September 24 and
October 20, 2002 (Tr. 412, 424). When Plaintiff saw Dr. Birney again on October 30,
2002, he reported that the injections “have resulted in fairly dramatic relief of his pain
complaints in the neck, upper back, and upper extremities, though he still gets
intermittent numbness in both hands and both lower extremities” (Tr. 530). Plaintiff
also related that “he has loss of maximal grip strength and some decrease in manual
dexterity” and “occasional unsteadiness of gait” (Tr. 530). Plaintiff felt “he can ‘live
with’ his current symptomatic level if it can be maintained” and indicated “he would
prefer not to consider surgical intervention unless his clinical condition deteriorates
further over time” (Tr. 530).
Dr. Birney saw Plaintiff for the last time on February 26, 2003, when it was
determined that Plaintiff had reached maximum medical improvement for purposes
of his workers’ compensation claim (Tr. 528). Plaintiff reported that the two cervical
epidural steroid injections had “resulted in significant improvement in his sensation
of upper and lower extremity numbness and weakness,” but complained that he “still
-15-

has problems with persistent neck pain” and accompanying headaches (Tr. 528). It
was recommended that Plaintiff see a neurologist to assess whether the headaches
were cervically based and, if so, whether any medications would help (Tr. 528).
Plaintiff does not appear to have followed this recommendation.
While the ALJ’s decision does reference the August 2002 MRI of Plaintiff’s
cervical spine, the ALJ merely stated that the MRI “revealed only ‘very minor’ disc
bulging” (Tr. 16), which was the radiologist’s conclusion.5 The ALJ made no mention
of Dr. Birney’s differing opinion that the MRI indicated cervical stenosis and that
Plaintiff displayed early symptoms of cervical myelopathy.6
Although the ALJ did not reference Dr. Birney’s diagnosis, the evidence does
not prove that Plaintiff’s cervical stenosis with myelopathy is a severe impairment.7
5

The radiologist also opined that there was “no significant congenital spinal
stenosis” (Tr. 379). Dr. Birney’s notes reflect that he considered the cervical stenosis
“significant” and consistent with Plaintiff’s complaints of pain and numbness in his
upper and lower extremities.
6

Pertinent to Dr. Birney’s diagnosis, Listing 1.04A requires a finding of
disability for “[d]isorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis,
vertebral fracture), resulting in compromise of a nerve root (including the cauda
equina) or the spinal cord” with “[e]vidence of nerve root compression characterized
by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss
(atrophy with associated muscle weakness or muscle weakness) accompanied by
sensory or reflex loss and, if there is involvement of the lower back, positive
straight-leg raising test (sitting and supine).” 20 C.F.R. Part 404, Subpart P, Appendix
1, § 1.04A (emphasis supplied). The ALJ determined that “the claimant’s condition
does not meet the requirements of Listing 1.04[A] because the claimant does not have
evidence of nerve root compression” (Tr. 15). Plaintiff, however, does not contend
the ALJ should have made a finding of disability at step 3.
7

Plaintiff also criticizes the ALJ’s failure to discuss Dr. Birney’s diagnosis of
Scheuermann’s disease, but concedes this condition is encompassed by the ALJ’s
finding that Plaintiff has “degenerative disc disease/osteoarthritis” (Tr. 13).
-16-

Dr. Birney noted that Plaintiff was not “sufficiently symptomatic to warrant surgery”
(Tr. 532) and that two steroid injections had “resulted in significant improvement in
his sensation of upper and lower extremity numbness and weakness” (Tr. 528).
B. Medical Opinions
“Medical opinions are statements from physicians and psychologists or other
acceptable medical sources that reflect judgments about the nature and severity of [the
claimant’s] impairment(s), including [his or her] symptoms, diagnosis and prognosis,
what [he or she] can still do despite impairment(s), and [his or her] physical or mental
restrictions.” 20 C.F.R. §§ 404.1527(a)(2), 416.927(a)(2) . “If [the Commissioner]
find[s] that a treating source’s opinion on the issue(s) of the nature and severity of [the
claimant’s] impairment(s) is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the claimant’s] case record, [the Commissioner] will give it controlling
weight.” 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). Otherwise, the weight given to
a medical opinion depends upon (1) whether the source examined the claimant, and,
if so, the frequency of examination; (2) whether the source treated the claimant, and,
if so, the length, nature, and extent of the treatment relationship; (3) whether the
opinion is supported by relevant evidence; (4) whether the opinion is consistent with
the record as a whole; (5) whether the source is a specialist; and (6) any other relevant
factors. See 20 C.F.R. §§ 404.1527(c), 416.927(c). A decision that is not fully
favorable “must contain specific reasons for the weight given to the treating source’s
medical opinion, supported by the evidence in the case record, and must be
sufficiently specific to make clear to any subsequent reviewers the weight the
adjudicator gave to the treating source’s medical opinion and the reasons for that
weight.” Id.; see also 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). (“We will always
give good reasons in our notice of determination or decision for the weight we give
your treating source’s opinion.”); Social Security Ruling 96-8p, 1996 WL 374184, *7
(S.S.A. July 2, 1996) (“If the RFC assessment conflicts with an opinion from a
medical source, the adjudicator must explain why the opinion was not adopted.”).
-17-

1. Dr. Birney
In the present case, the ALJ gave “partial weight” to an opinion of Dr. Birney
that in April 2003 “the claimant ha[d] a combined impairment of 14%, could work
part-time at the medium exertional level, and work full-time at the light and sedentary
exertional levels with alternating positions (Exhibit 5F, pgs. 61-64)” (Tr. 16). The ALJ
found the opinion of this treating physician to be inconsistent with “the medical
record, including the objective imaging, [which] indicates that the claimant is able to
work full-time at both the light and sedentary exertional levels” (Tr. 16). In other
words, the ALJ found no evidence to support Dr. Birney’s opinion that Plaintiff must
be able to alternate positions while working.8
The ALJ’s explanation is inadequate because it fails to identify any purported
inconsistencies in the medical record, other than to reference “objective imaging.” As
discussed above, Dr. Birney’s interpretation of the August 2002 MRI of Plaintiff’s
cervical spine differed significantly from the radiologist’s. The radiologist observed
8

More precisely, Dr. Birney opined that Plaintiff “would also benefit from
being able to able to alternate positions every thirty minutes as required for comfort”
(Tr. 590). This opinion was provided in a report letter to a workers’ compensation
insurer, in which Dr. Birney stated that “[t]he patient is released to return to work with
the restrictions as per his most recent Functional Capacities Evaluation” (Tr. 590). The
functional capacities evaluation (FCE) was performed on March 3, 2003 (Tr. 540571), less than a week after Plaintiff’s final appointment with Dr. Birney . In the FCE
report, the occupational therapist concluded that Plaintiff “demonstrates the ability to
tolerate part-time job demands up to 4 hours per day within the medium work level
category,” “may be able to tolerate full-time job demands with the sedentary or light
work category, and “may benefit from being able to alternate positions every 30
minutes to assist with pain management” (Tr. 570). In addition, as noted by the ALJ,
the occupational therapist opined that Plaintiff “could occasionally sit, stand, walk,
climb stairs utilizing bilateral handrails and should limit overhead reaching to a
minimum (Exhibit 5F, pgs. 14-45)” (Tr. 16). “As with Dr. Birney’s opinion, the [ALJ
gave] these opinions partial weight because the medical record, including the
objective imaging, shows that the claimant is able to work full-time at both the light
and sedentary exertional levels” (Tr. 16).
-18-

only “very minor” disc bulging and “no significant congenital spinal stenosis” (Tr.
379), but Dr. Birney saw narrowing of Plaintiff’s spinal canal which “could be the
cause of his current upper extremity complaints ... [and] numbness in both lower
extremities” (Tr. 532).
“[T]he ALJ is not free to ignore medical evidence but rather must consider the
whole record.” Reeder v. Apfel, 214 F.3d 984, 988 (8th Cir. 2000). “An ALJ’s failure
to cite specific evidence does not indicate that it was not considered,”Craig v. Apfel,
212 F.3d 433, 436 (8th Cir.2000), but “[i]t is the ALJ’s function to resolve conflicts
among the opinions of various treating and examining physicians.” Pearsall v.
Massanari, 274 F.3d 1211, 1219 (8th Cir. 2001). In this instance, the ALJ either
overlooked Dr. Birney’s opinion concerning the cervical MRI or else neglected his
duty to provide “good reasons” for not accepting Dr. Birney’s opinion. Whichever
was the case here, the ALJ committed reversible error.
The ALJ further explained that he did not give controlling weight to Dr.
Birney’s opinion because it “is remote in time, Social Security uses different standards
for evaluating disability that Worker’s Compensation, and whether an individual is
disabled or able to work is an issue reserved for the Commissioner” (Tr. 16).9 These
are valid considerations.10 See, e.g,, Rogers v. Chater, 118 F.3d 600, 602 (8th Cir.
1997) (ALJ properly discounted treating physician’s opinion that was several years

9

The ALJ gave the same reasons for discounting the FCE report and also noted
that occupational therapists are “non-acceptable medical sources” (Tr. 16-17).
10

However, the “remoteness” factor cannot negate Dr. Birney’s diagnosis of
cervical stenosis with myelopathy because this is not a medical condition that heals
itself. “The natural history of cervical stenosis and cervical myelopathy is that of a
progressive disease which eventually may lead to severe disabilities if left untreated.”
New York University Hospital for Joint Diseases Spine Center, “Patient Education,
Neck and Arm Pain, Cervical Stenosis and Myelopathy,” http://hjd.med.nyu.edu/
spine/patient-education/spine-problems/neck-and-arm-pain/cervical-stenosisand-myelopathy.
-19-

removed from the time period relevant to claimant’s Social Security application);
Loeffler v. Massanari, 23 Fed.Appx. 605, 606, 2001 WL 1426581, *1 (8th Cir. 2001)
(claimant’s reliance on doctors’ statements related to her workers’ compensation
claim was misplaced because disability determination by another agency is not
binding on the Social Security Administration) (citing 20 C.F.R. §§ 404.1504,
416.904); 20 C.F.R. §§ 404.1527(d), 416.927(d) (“A statement by a medical source
that you are ‘disabled’ or ‘unable to work’ does not mean that we will determine that
you are disabled.”).
2. Dr. Lamberty
Leland F. Lamberty, M.D., examined Plaintiff in January 2007 in connection
with an earlier application for disability benefits. It is stated in the ALJ’s decision that
Dr. Lamberty “opined that he should not repetitively lift, twist or bend and would
have difficulty working as a truck driver, but could perform sedentary work (Exhibit
6F)” (Tr. 17).11 The ALJ gave this opinion “little weight because he only examined
11

On examination, Dr. Lamberty found no motor or sensory deficits (Tr. 596).
Plaintiff’s reflexes were “ 3+ and equal in the lower extremities” (Tr. 596). It was
also reported that
X-rays of the claimant brought with him taken back in 2002 showed
some anterior narrowing of T12 and Ll and other than that nothing
terribly unusual noted. The MRI reports of all three areas of the spine
were noted with no evidence of severe focal spinal stenosis or
compression of thoracic or lumbar cord. Minor degenerative changes
were noted.
(Tr. 596).
Dr. Lamberty’s impressions were:
1.
2.

Chronic back pain worse, midthoracic and lumbar spine secondary
to injury of 05/02.
Intermittent numbness and tingling, left lower extremity.
-20-

the claimant one time and his opinion is remote in time, in that it was rendered nearly
two years prior to the claimant’s amended alleged onset date” (Tr. 17).
“The opinion of a consulting physician who examines a claimant once ... does
not generally constitute substantial evidence.” Kelley v. Callahan, 133 F.3d 583, 589
(8th Cir. 1998).12 This does not necessarily mean, however, that Dr. Lamberty’s

3.
4.
5.

Decreased strength both hands with decrease in manual dexterity.
Migraine headaches secondary to back injury.
Status post kidney donation.

(Tr. 596).
Dr. Lamberty’s consultative examination report concluded:
This gentleman certainly seemed to be in discomfort during the
examination, but there are little else in the way of findings. He was able
to walk on his toes or his heels with a little bit of difficulty, but still
accomplished it. There was certainly no localization as far as muscle
weakness or wasting. It is certainly possible that the pain he is having is
secondary to his injury with little findings in the way of physical exam
or imaging at least from 2002. He certainly, at this point in time, would
be no candidate to do any kind of repetitive lifting, twisting, bending at
the waist, and because of the intermittent numbness of the left lower
extremity it would certainly make it difficult for him to work as a truck
driver since he would have difficulty managing the clutch pedal.
Sedentary-type work would certainly be within his grasp, as mentally he
does seem to be reasonably sharp and motivated.
(Tr. 596-597).
12

“Nonetheless, there are two exceptions to this general rule. Anderson v.
Barnhart, 344 F.3d 809, 812 (8th Cir. 2003). “Specifically, [the court] will uphold the
ALJ’s decision to credit a one-time consultant and discount a treating physician’s
opinion ‘(1) where [the one-time] medical assessments are supported by better or
more thorough medical evidence, or (2) where a treating physician renders
inconsistent opinions that undermine the credibility of such opinions.’” Id. at 812-13
-21-

opinion carries only “little” weight. Also, the ALJ gave no weight to Dr. Lamberty’s
opinion that Plaintiff should not repetitively lift, twist or bend. There may be good
reasons for this decision—possibly including the “remoteness” factor—but the ALJ’s
explanation was again inadequate.
3. Dr. Lindley
Another consultative physician, David Lindley, M.D., examined Plaintiff in
March 201013 and, as noted by the ALJ, “opined that ‘he has not been deemed a
(quoting Cantrell v. Apfel, 231 F.3d 1104, 1107 (8th Cir. 2000)). In this instance, Dr.
Lamberty did not review the actual MRI results, but instead relied on the radiologist’s
reports. His opinion therefore cannot be used to discredit Dr. Birney’s interpretation
of the cervical MRI results.
13

Plaintiff told Dr. Lindley he

had a Workmen’s Comp injury where he fell and knocked pretty
significantly his back as he was pulling on some heavy equipment and
lost balance and he apparently ruptured a disk in his lower back. He was
told he was not a candidate for surgery due to severe spinal stenosis.
Unfortunately, his pains have gradually gotten worse. He has gone to
work until about a year ago, but now he just cannot do anything any
longer. He is in constant pain in his lower back all the way up into his
thoracic spine up into his occiput of his head, aching all around his head
and he gets horrible headaches....
He also gets pain shooting down his arms, worse in the left than the right
arm with a tingling in his hands and weakness in his hands and
occasionally he drops things. He also gets pain shooting down his legs.
He gets tingling in his lower legs and in his feet intermittently. He tries
not to bend or lift. Laying in bed, he can only do this for two to three
hours. He can stand for about five minutes, can sit for half an hour and
he can walk around for about five minutes using a cane and then has to
sit down due to increasing severe pains in his back .
(Tr. 631-632).
-22-

candidate for surgery and is getting increasing disability related to this [osteoarthritis
with an old injury at L4 and L5 as well as back pain] (Exhibit l0F)’” (Tr. 17). The
ALJ also gave this opinion “little weight” because Dr. Lindley “only examined the
Dr. Lindley observed that Plaintiff “obviously ... has problems getting around
the exam room and has his cane with him and uses it even just in the exam room” (Tr.
633). On examination, Dr. Lindley found that Plaintiff
[h]as obvious muscle spasm in the thoracic and paralumbar muscles with
severe tenderness in the parathoracic muscles, a little bit tenderness in
the paralumbar muscles. He has reduced range of motion of the spine. He
also has reduced range of motion on lifting the right and the left arm,
both arms to get above shoulder height is hard or behind his back and
reduced straight leg raising again with pain shooting down his legs from
his back.
Cranial nerves II through XII intact. Normal peripheral nervous system.
Tone, power, muscle coordination, and sensation were intact. Reflexes
are normal. Downward going plantars.
X-rays taken of the lumbosacral spine showed some clips from the
removal of his right kidney, showed loss of lumbar lordosis with mild
muscle spasm. Disk spaces looked pretty well preserved. He has
significant abnormality to the L4 and the L5 vertebral bodies with some
old vertebral body fractures there. He has some sclerotic changes to the
vertebral bodies.
(Tr. 634-635). Dr. Lindley’s overall impressions were:
l.
2.
3.
4.

Muscle spasm and osteoarthritis with probably old injury in L4
and L5, possible vertebral fractures that are healed.
Severe back pain.
Headaches, probably radiating from the back pain.
Neuropathic symptoms, variable, sometimes to the stage of even
paralyzing him, stopping him walking around, hardly much
___________ particularly on his left leg.

(Tr. 635 (blank in original)).
-23-

claimant one time, it is inconsistent with the objective medical evidence that shows
relatively benign findings, and whether an individual is disabled is an issue reserved
for the Commissioner” (Tr. 17).
Dr. Lindley is the only doctor to examine Plaintiff since the alleged disability
onset date, but he failed to provide a medical opinion about Plaintiff’s functional
limitations. Instead, he concluded his report by stating only that Plaintiff “appears to
have struggled with his back for sometime [sic]” but “has not been deemed a
candidate for surgery and is getting increasing disability related to this” (Tr. 635). It
was proper for the ALJ to disregard Dr. Lindley’s conclusory opinion about Plaintiff’s
“increasing disability.” See Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir. 2005) (“A
medical source opinion that an applicant is ‘disabled’ or ‘unable to work,’ ... involves
an issue reserved for the Commissioner ...”). However, “[t]he ALJ has a duty to fully
and fairly develop the evidentiary record,” Byes v. Astrue, 687 F.3d 913, 916 (8th Cir.
2012), and “should recontact a treating or consulting physician if a critical issue is
undeveloped.” Johnson v. Astrue, 627 F.3d 316, 320 (8th Cir. 2010).
Also, the ALJ made no mention of the fact that Dr. Lindley took x-rays of
Plaintiff’s lumbosacral spine and noted “significant abnormality to the L4 and the L5
vertebral bodies” and “some sclerotic changes to the vertebral bodies” (Tr. 635). The
x-rays of Plaintiff’s lumbar spine that were taken eight years earlier revealed only
mild degenerative changes (Tr. 579). In this circumstance, the ALJ could not dismiss
Dr. Lindley’s opinion as being “inconsistent with the objective medical evidence that
shows relatively benign findings” without providing some explanation for accepting
the “remote in time” findings over those of Dr. Lindley.
4. Non-Examining Medical Consultants
A state agency medical consultant, Jerry Reed, M.D., completed a physical RFC
assessment form on March 31, 2010. He reviewed the reports of Dr. Lamberty and

-24-

Dr. Lindley and concluded that Plaintiff’s complaints are “less than fully credible”
(Tr. 665). Dr. Reed’s comments on the form were as follows:
46 y/o male, 5’7”, 181 lbs. Alleges disability second to; Back Injury,
possible brain tumor. Longitudinal mer [medical record] is quite sparse.
A review of prior filings produced mer from 2007. Clmt apparently
suffered an injury to mid thoracic spinal region in 2002. Clmt seen for
CE [consultative examination] w/Dr Lamberty on 1/12/07. On exam,
clmt complaining of back pain w/numbness and tingling in the LUE [left
upper extremity] and weakness in his hands. Exam revealed that clmt
appeared quite healthy but moved slowly. Tenderness noted over entire
length of spine and at paraspinous muscles. ROM [range of motion] of
spine WNL [within normal limits], extremities WNL, and neuro exam
WNL. Clmt’s symptoms noted to be out of proportion w/the objective
evidence.
Current CE conducted by David Lindley, MD on 3/2/10. On exam, clmt
complaining of back pain, headaches, shooting pain down arms, legs,
and feet, and tingling and weakness in hands. Exam revealed clmt having
problems getting around the exam room w/cane. Vision WNL. Obvious
muscle spasm noted in the thoracic and paralumbar muscles w/severe
tenderness in the parathoracic muscles. ROM in elevation of arms above
shoulder height SLR limited w/shooting pain down legs from clmt’s
back. Neuro intact XR’s of the L-spine revealed loss of lumbar lordosis
w/mild muscle spasm. Disc spaces well preserved, but significant
abnormality identified at the L4 and L5 vertebral bodies w/some old
vertebral body fx’s. ROM of C-spine limited to 15º extension, 20º
flexion, 10º L lat flexion, 30º lat flexion, and 20º bilat rotation. ROM of
L-spine limited to 5º extension, 30º flexion, 10º L lat flexion, 15º R lat
flexion, and 15º rotation bilat Dr. Lindley confirmed diagnoses of muscle
spasm and OA [osteoarthritis] w/probably old injury. In L4 and L5,
possible healed vertebral fx’s, severe back pain, headaches, probably
radiating from back pain, and neuropathic symptoms, variable,
sometimes to the stage of even paralyzing clmt, preventing ambulation.
Clmt noted to be an unsuitable candidate for surgery in the past.
Claimant has an MDI [medically determinable impairment] of OA and
muscle spasm at L-spine w/severe back pain that could reasonably
produce the limitations alleged. Physicians’ notes from AOD [alleged
-25-

onset date] to the present generally indicate physical findings partially
supporting claimant’s allegations. Claimant alleged in his ADL’s
[activities of daily living] that he can only walk 2-3 blocks on a bad day
and 10-15 minutes on a good day, is able to stand for 15-30 minutes, and
can sit for 2-3 hours. Clmt however alleges during CE that he can sit for
only half an hour and can walk for about five minutes using a cane and
then has to sit down due to increasing severe pain in his back. Overall,
claimant’s allegations and his ADL’s are inconsistent with the
longitudinal evidence therefore claimant’s allegations are considered to
be less than fully credible. Thus the overall pattern of evidence is
partially consistent with W/E’s allegations in that physical conditions are
present, but is not consistent with any claim of marked physical
limitations. Given claimant’s condition, claimant would have difficulty
lifting/carrying heavy objects in addition to the other limitations as
outlined at this time in this RFC.
(Tr. 665).14
Dr. Reed opined on the form’s checklist that Plaintiff can lift 20 pounds
occasionally and 10 pounds frequently; that he can sit and stand for 6 hours each in
an 8-hour workday; that he is not limited in the ability to push or pull; that he can
occasionally climb, balance, stoop, kneel, crouch, and crawl; that his ability to reach
in all directions is limited; and that he should avoid concentrated exposure to vibration
and hazards such as machinery or heights (Tr. 659-662). This opinion matches the
ALJ’s subsequent assessment of Plaintiff’s RFC.
Another state medical consultation, Glen Knosp, M.D., affirmed Dr. Reed’s
RFC assessment on August 6, 2010, stating:
The claimant is a 47 y/o male who alleges disability since 12/1/08 due
to back injury. He does not report additional allegations at RECON.

14

Significantly, Dr. Reed’s comments give no indication that he reviewed Dr.
Birney’s treatment records or opinions. There is also no indication that he reviewed
any reports concerning the 2002 x-rays and MRIs of Plaintiff’s spine.
-26-

There is no additional evidence submitted at RECON. The claimant does
have a history of mid thoracic spine injury in 2002. In 3/10, he was seen
for CE and the imaging of spine shows disc spaces well preserved, but
significant abnormality identified at the L4 and L5 vertebral lbodies [sic]
w/some old vertebral body fractures. He has decreased ROM of spine.
He used cane at CE but neurologically he was intact and there is no
evidence this cane was prescribed.
This claimant does not M/E [medically equal] any listing. He is
considered partially credible as severe limitations are not supported with
objective MER in file. There is no evidence of change since prior RFC.
I have reviewed all of the evidence in file and the RFC of 3/31/10 is
affirmed.
(Tr. 669)
The ALJ gave “significant weight” to the opinions of these non-examining
physicians.15 In fact, the ALJ adopted their RFC assessments in toto.
In Nevland v. Apfel, 204 F.3d 853 (8th Cir. 2000), the Eighth Circuit made clear
that the opinions of a non-examining state agency medical consultants are not
considered substantial evidence at step 5 of the sequential evaluation process.16 The
court stated:
In the case at bar, there is no medical evidence about how
Nevland’s impairments affect his ability to function now. The ALJ relied
on the opinions of non-treating, non-examining physicians who reviewed
15

Social Security regulations provide that “administrative law judges must
consider findings and other opinions of State agency medical ... consultants ... as
opinion evidence, except for the ultimate determination about whether [the claimant
is] disabled.” 20 CFR §§ 404.1527(e)(2)(i), 416.927(e)(2)(i).
16

“Nevland does not preclude the ALJ’s reliance on a reviewing physician’s
report at step four when the burden is on the claimant to establish an inability to do
past relevant work.” Casey v. Astrue, 503 F.3d 687, 697 (8th Cir. 2007).
-27-

the reports of the treating physicians to form an opinion of Nevland’s
RFC. In our opinion, this does not satisfy the ALJ’s duty to fully and
fairly develop the record. The opinions of doctors who have not
examined the claimant ordinarily do not constitute substantial evidence
on the record as a whole. Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir.
1999). Likewise, the testimony of a vocational expert who responds to
a hypothetical based on such evidence is not substantial evidence upon
which to base a denial of benefits. Id. In our opinion, the ALJ should
have sought such an opinion from Nevland’s treating physicians or, in
the alternative, ordered consultative examinations, including psychiatric
and/or psychological evaluations to assess Nevland’s mental and
physical residual functional capacity. As this Court said in Lund v.
Weinberger, 520 F.2d 782, 785 (8th Cir. 1975): “An administrative law
judge may not draw upon his own inferences from medical reports. See
Landess v. Weinberger, 490 F.2d 1187, 1189 (8th Cir. 1974); Willem v.
Richardson, 490 F.2d 1247, 1248–49 n. 3 (8th Cir. 1974).”
Id. at 858 (emphasis in original); see also Strongson v. Barnhart, 361 F.3d 1066,
1071-72 (8th Cir. 2004) (“[T]he ALJ’s duty to develop the record fully and fairly ...
includes the responsibility of ensuring that the record includes evidence from a
treating physician, or at least an examining physician, addressing the particular
impairments at issue.”); Flynn v. Astrue, 513 F.3d 788, 792 (8th Cir. 2008) (“If the
ALJ does not find any of the medical opinions credible, then she should develop the
record further to include medical evidence of a claimant’s limitations.”).
This case presents essentially the same situation as Nevland. The ALJ made an
assessment of Plaintiff’s RFC relying exclusively upon the opinions of state agency
consultants who did not examine Plaintiff but instead reviewed the written results of
examinations conducted by Dr. Lamberty in January 2007 and Dr. Lindley in March
2010. The ALJ discounted the opinions of both examining physicians because they
only saw Plaintiff once and also discounted the opinion of Dr. Lamberty because his
examination occurred almost 2 years before the alleged disability onset date. These
criticisms apply equally to the opinions of the non-examining physicians, Dr. Reed
and Dr. Knosp, who formed their opinions based entirely upon the results of the
examinations that were conducted by Dr. Lamberty and Dr. Lindley. As discussed
-28-

above, Dr. Lindley is the only physician to examine Plaintiff during the relevant time
period, and he did not provide an opinion about Plaintiff’s functional limitations.
C. Plaintiff’s Credibility
“The credibility of a claimant’s subjective testimony is primarily for the ALJ
to decide, not the courts.” Baldwin v. Barnhart, 349 F.3d 549, 558 (8th Cir. 2003). To
analyze a claimant’s subjective complaints, the ALJ considers the entire record
including the medical records, third party and the claimant’s statements, and factors
such as: 1) the claimant’s daily activities; 2) the duration, frequency and intensity of
pain; 3) dosage, effectiveness, and side effects of medication; 4) precipitating and
aggravating factors; and 5) functional restrictions. See 20 C.F.R. § 404.1529; Polaski
v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)).
In this case, the ALJ concluded that “the claimant’s medically determinable
impairments could reasonably be expected to produce the alleged symptoms, but that
the claimant’s statements concerning the intensity, persistence and limiting effects of
these symptoms are generally not fully credible” (Tr. 17). Plaintiff contests each of
the reasons that were provided by the ALJ to support this credibility assessment.
The ALJ first stated that “[t]he claimant is able to engage in a wide range of
activities of daily living that could translate into performing a job including household
chores, such as sweeping, washing the dishes, feeding the dogs, and laundry” (Tr.
17).17 This is an overstatement by the ALJ because Plaintiff testified he performs
limited household chores and he did not admit to engaging in a “wide range” of

17

“Allegations of pain may be discredited by evidence of daily activities
inconsistent with such allegations.” Davis v. Apfel, 239 F.3d 962, 966-67 (8th Cir.
2001). However, the Eighth Circuit “has repeatedly stated that a person’s ability to
engage in personal activities such as cooking, cleaning or a hobby does not constitute
substantial evidence that he or she has the functional capacity to engage in substantial
gainful activity.” Singh v. Apfel, 222 F.3d 448, 453 (8th Cir. 2000).
-29-

activities.18 However, it is unclear from Eighth Circuit precedent whether the ALJ
erred by finding Plaintiff’s activities of daily living to be inconsistent with his
complaints of pain. Compare McDade v. Astrue, 720 F.3d 994, 998 (8th Cir. 2013)
(claimant with pain in back, neck, and pelvis was not unduly restricted in his daily
activities, which included the ability to perform some cooking, take care of his dogs,
use a computer, drive with a neck brace, and shop for groceries with the use of an
electric cart) with Ford v. Astrue, 518 F.3d 979, 983 (8th Cir. 2008) (claimant’s
activities, which included washing a few dishes, ironing one or two pieces of clothing,
making three or four meals each week, and reading, were not inconsistent with her
complaints of shoulder and neck pain caused by degenerative disc disease, as well as
pain in her hands, wrists, and arms caused by carpal tunnel syndrome); see also
Clevenger v. Social Sec. Admin., 567 F.3d 971, 976 (8th Cir. 2009) (“Our cases
admittedly send mixed signals about the significance of a claimant’s daily activities
in evaluating claims of disabling pain....”).

18

Plaintiff testified: “I usually wake up about 4:00 a.m., ... have a cup of coffee,
smoke a cigarette, cope with some pain and then I get up and work around and try to
do little chores as I can, try to sweep part of the floor or do what little dishes that need
to be done because it’s just my wife and I” (Tr. 41). “Feed the puppies in the morning
... right outside the door so I only have to take two steps” (Tr. 41). “I try to do as much
as I can, you know, even though it hurts” (Tr. 41). “When I go to do the dishes at the
house I can do about 10 or 15 items and then I’ve got to go sit down and relax for a
half-hour doing it or then I can get up and finish a few more. It’s just like everything
I do. I get up and I can do it slowly, then I go back [to sitting in a chair]” (Tr. 38). “I
try to do a load of laundry every other day if I’m able to get up and down the stairs....
I can sit and do folding” (Tr. 41). “[My wife] takes out the trash and sometimes I feel
good enough to help her” (Tr. 41). “I walk down to the coffee shop ... about once a
week, try to.... It’s about six blocks” (Tr. 39-40). “I used to love playing guitar and
I can get about 15 minutes of practice when I used to play three to four hours without
even thinking” (Tr. 40). “[J]et skiing I can’t do anymore, and golfing I can’t do
anymore. I don’t even rake my yard or even do any yard work” (Tr. 40). “[R]eading
gives me a headache” (Tr. 42).
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Even assuming that the ALJ did err in this regard, such error is not cause for
reversal unless the ALJ gave undue significance to Plaintiff’s daily activities when
making the credibility assessment. See Cox v. Barnhart, 471 F.3d 902, 908 (8th Cir.
2006) (“[E]ven if the ALJ had overestimated [the claimant’s] capabilities, that would
not have shown that his overall credibility decision was flawed because this was only
one of the several inconsistencies he identified.”); see also Mouser v. Astrue, 545 F.3d
634, 638 (8th Cir. 2008) (based on record as whole, credibility assessment was proper;
ALJ may have overstated extent of daily activities, but record indicated claimant was
generally able to care for himself). Reviewing the ALJ’s decision, it is evident that
other factors weighed more heavily in the credibility assessment.
The ALJ declared that “[w]hile the medical record evidences that the claimant
has degenerative disc disease/osteoarthritis, ... there are few objective findings and
what objective evidence does exist is relatively benign (Exhibits 1F; 2F, pgs. 7-9; and
5F, pg. 53)” (Tr. 17-18). The exhibits referenced by the ALJ have been discussed
above in connection with the ALJ’s “step 2” finding: Exhibit 1F (Tr. 377-379) and
pages 7-9 of Exhibit 2F (Tr. 386-388) contain the radiologist’s reports for the June
2002 MRIs of Plaintiff’s thoracic and lumbar spine and the August 2002 MRI of
Plaintiff’s cervical spine; page 53 of Exhibit 5F (Tr. 579) is the radiologist’s report for
the June 2002 x-rays of Plaintiff’s lumbar spine. The ALJ’s description of the
radiologist’s reports as containing “relatively benign” findings is accurate, and this
was a proper consideration. “Although an ALJ may not disregard a claimant’s
subjective pain allegations solely because they are not fully supported by objective
medical evidence, an ALJ is entitled to make a factual determination that a claimant’s
subjective pain complaints are not credible in light of objective medical evidence to
the contrary.” Gonzales, 465 F.3d at 895 (internal quotations and alterations omitted)
(quoting Ramirez v. Barnhart, 292 F.3d 576, 581 (8th Cir. 2002)).
However, the ALJ did not reference Dr. Birney’s reading of the cervical spine
MRI results. Dr. Birney’s findings indicated that Plaintiff’s physical problems with
degenerative disc disease were compounded by a narrowing of the spinal canal
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between C3 and C6. He believed this cervical stenosis “could be the cause of
[Plaintiff’s] current upper extremity complaints ... [and] numbness in both lower
extremities” (Tr. 532).
In addition, the ALJ found that “the medical record indicates minimal treatment
since [Plaintiff’s] amended alleged onset date and gaps in treatment” (Tr. 18). The
Eighth Circuit has consistently held that allegations of a disabling impairment may be
properly discounted because of inconsistencies such as minimal or conservative
medical treatment. See, e.g., Edwards v. Barnhart, 314 F.3d 964, 967 (8th Cir. 2003)
(“[T]he ALJ concluded, and we agree, that if her pain was as severe as she alleges,
[the plaintiff] would have sought regular medical treatment.”).
Plaintiff claims he cannot afford to seek medical treatment, but, as noted by the
ALJ, Plaintiff “testified that he smokes [costly] cigarettes” and there is no evidence
that he “was ever refused treatment or medication for any reason,” or that he “ever
sought the aid ... to help defray the cost of treatment” (Tr. 18). These are all legitimate
considerations. See, e.g., Riggins v. Apfel, 177 F.3d 689, 693 (8th Cir. 1999)
(“Although Riggins claims he could not afford such medication, there is no evidence
to suggest that he sought any treatment offered to indigents or chose to forgo smoking
three packs of cigarettes a day to help finance pain medication.”); Goff v. Barnhart,
421 F.3d 785, 793 (8th Cir. 2005) (“[T]here is no evidence [the claimant] was ever
denied medical treatment due to financial reasons.”); Harris v. Barnhart, 356 F.3d
926, 930 (8th Cir. 2004) (“[I]t was permissible for the ALJ to consider the lack of
evidence that [the claimant] had sought out stronger pain treatment available to
indigents.”).
Plaintiff next complains about the ALJ’s statement that “[w]hile the claimant
testified that he uses a cane for balance, there is no indication in the medical record
that it was prescribed” (Tr. 18). Again, this lack of supporting medical evidence was
properly considered by the ALJ in assessing Plaintiff’s subjective complaints. See,
e.g., Raney v. Barnhart, 396 F.3d 1007, 1010 (8th Cir. 2005) (“We also find no
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medical records or opinions documenting [the claimant’s] use of a cane as being
medically necessary.”).
Plaintiff also complains about the ALJ’s observation that “the claimant was in
no apparent distress at the hearing” (Tr. 18). While it is true that the claimant’s
“failure to ‘sit and squirm’ with pain during the hearing cannot be dispositive of [his]
credibility,” Muncy v. Apfel, 247 F.3d 728, 736 (8th Cir. 2001), this does not mean
that the ALJ is prohibited from considering a claimant’s hearing behavior as part of
the credibility analysis. “The ALJ’s personal observations of the claimant’s demeanor
during the hearing is completely proper in making credibility determinations.”
Johnson v. Apfel, 240 F.3d 1145, 1147-48 (8th Cir. 2001).
The ALJ also noted Plaintiff’s testimony “that he sits most of the day, which
is his most comfortable position” (Tr. 18). Although Plaintiff complains the ALJ
ignored his additional testimony that he would “get up and walk around every time
it hurts[,] ... usually within a half-hour after sitting” (Tr. 43), “[a]n ALJ’s failure to
cite specific evidence does not indicate that such evidence was not considered.”
Wildman v. Astrue, 596 F.3d 959, 966 (8th Cir. 2010) (quoting Black v. Apfel, 143
F.3d 383, 386 (8th Cir. 1998)). In any event, the ALJ stated earlier in his decision that
Plaintiff “testified that he lies down two to three times a day to alleviate his pain, he
has difficulties moving his legs, his legs tingle and have pressure, ... he uses a cane for
balance, ... he can stand for 5-15 minutes, walks every 30 minutes, sits for half the day,
and that sitting is his most comfortable position, but he could not work a ‘desk job’
because his back pain is too severe” (Tr. 16 (emphasis supplied)). The ALJ also stated
that Plaintiff had previously reported that “he cooks, can drive for one and a half
hours, sits and watches television, and can sit for two to three hours at one time with
breaks, but is not able to do much due to pain (Exhibits 13E and 14E)” (Tr. 16
(emphasis supplied)).
Finally, Plaintiff objects to the ALJ’s statement that “the claimant’s migraines,
status-post kidney donation, mood disorder, and personality disorder were determined
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to be non-severe” (Tr. 18 ) because this “step 2” determination is not inconsistent with
Plaintiff’s disability claim. While the ALJ’s statement does not provide a legitimate
reason for discrediting Plaintiff’s testimony, neither does it establish that the ALJ’s
credibility assessment is erroneous. “[A]n arguable deficiency in opinion-writing
technique does not require [the court] to set aside an administrative finding when that
deficiency had no bearing on the outcome.” Buckner v. Astrue, 646 F.3d 549, 559 (8th
Cir. 2011) (quoting Robinson v. Sullivan, 956 F.2d 836, 841 (8th Cir. 1992)).
The ALJ noted that Plaintiff only claimed to be disabled because of “back
injury and lumbar fractures (Exhibits 4E, pg. 1; 12E, pg. 2; and 24E)” (Tr. 16), but
nonetheless made a finding at step 2 that “a review of the medical record reflects the
impairments of migraines (Exhibits 6F, pg. 6 and l0F, pg. 5); status-post kidney
donation (Exhibits 4F and 6F, pg. 6); mood disorder and personality disorder
(Exhibits 9F, pg. 1 and 11F, pg. 4)” (Tr. 13-14 (emphasis supplied)). In further finding
that Plaintiff’s mental impairments caused “no degree of limitation” in activities of
daily living and other functional areas, the ALJ also correctly noted that Plaintiff “did
not allege [mood disorder or personality disorder] as a medical condition that impairs
his ability to work at the hearing” (Tr. 14 (emphasis supplied)). The ALJ made no
finding that Plaintiff had exaggerated any of his symptoms associated with the nonsevere impairments.
Overall, the ALJ has provided good reasons for his credibility findings. See,
e.g., Medhaug v. Astrue, 578 F.3d 805, 816 (8th Cir. 2009) (ALJ properly considered
that claimant’s back pain responded to medical treatment and that he maintained
activities of daily living with minimal accommodations). The credibility assessment
is flawed, however, insofar as the ALJ determined, without any discussion of Dr.
Birney’s diagnosis of cervical stenosis with myelopathy, that Plaintiff’s subjective
complaints are not fully supported by objective medical evidence.

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D. Residual Functional Capacity
“‘Residual functional capacity’ [(‘RFC’)] is what the claimant is able to do
despite limitations caused by all of the claimant’s impairments.” Lowe v. Apfel, 226
F.3d 969, 972 (8th Cir. 2000). “RFC is an administrative assessment of the extent to
which an individual’s medically determinable impairment(s), including any related
symptoms, such as pain, may cause physical or mental limitations or restrictions that
may affect his or her capacity to do work-related physical and mental activities. . ..
Ordinarily, RFC is the individual’s maximum remaining ability to do sustained work
activities in an ordinary work setting on a regular and continuing basis, and the RFC
assessment must include a discussion of the individual’s abilities on that basis. A
‘regular and continuing basis’ means 8 hours a day, for 5 days a week, or an
equivalent work schedule.” Social Security Ruling 96-8p, 1996 WL 374184, *2
(S.S.A. July 2, 1996). “The ALJ must assess a claimant’s RFC based on all relevant,
credible evidence in the record, including the medical records, observations of treating
physicians and others, and an individual’s own description of his limitations.” Goff
v. Barnhart, 421 F.3d 785, 793 (8th Cir. 2005) (internal quotations and citations
omitted).
“In assessing RFC, the adjudicator must consider limitations and restrictions
imposed by all of an individual’s impairments, even those that are not ‘severe.’ While
a ‘not severe’ impairment(s) standing alone may not significantly limit an individual’s
ability to do basic work activities, it may—when considered with limitations or
restrictions due to other impairments—be critical to the outcome of a claim. For
example, in combination with limitations imposed by an individual’s other
impairments, the limitations due to such a ‘not severe’ impairment may prevent an
individual from performing past relevant work or may narrow the range of other work
that the individual may still be able to do.” Social Security Ruling 96-8p, 1996 WL
374184, *2 (S.S.A. July 2, 1996).

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The ALJ’s assessment of Plaintiff’s RFC supports his “step 4” finding that
Plaintiff is unable to perform any past relevant work, but, for reasons already
explained above, it does not suffice to prove that Plaintiff can perform other jobs in
the national economy. See Nevland, 204 F.3d at 858. On remand, the Commissioner
should obtain a medical opinion concerning the extent of Plaintiff’s functional
capacity since December 1, 2008.
E. “Step Five” Determination
“[T]he testimony of a vocational expert who responds to a hypothetical based
on [the opinions of doctors who have not examined the claimant] is not substantial
evidence upon which to base a denial of benefits. Id. (citing Jenkins, 196 F.3d at 925).
Because the ALJ in this case only credited the opinions of non-examining physicians
in assessing Plaintiff’s RFC, the vocational evidence does not establish that Plaintiff
is able to work.19

19

The Commissioner concedes that the VE’s answer to the ALJ’s hypothetical
was partially incorrect. According to the Dictionary of Occupational Titles, two of the
jobs that were identified by the VE as being suitable for a person with Plaintiff’s
limitations—charge account clerk and order clerk—require “frequent” reaching. The
ALJ’s hypothetical question permitted only “occasional” reaching. “An ALJ cannot
rely on expert testimony that conflicts with the job classifications in the Dictionary of
Occupational Titles unless there is evidence in the record to rebut those
classifications.” Jones v. Astrue, 619 F.3d 963, 978 (8th Cir. 2010) (internal
quotations and alterations omitted) (quoting Jones ex rel. Morris v. Barnhart, 315
F.3d 974, 979 (8th Cir. 2003)). This error was harmless, however, because the VE
identified a third job—surveillance system monitor—which requires only
“occasional” reaching. The job numbers that were provided by the vocational expert
for such work (i.e., 500 jobs available in Nebraska and 79,280 jobs available
nationally) are within the range that the Eighth Circuit has considered “significant.”
See Osborne v. Barnhart, 316 F.3d 809, 812 (8th Cir. 2003) (citing cases); Weiler v.
Apfel, 179 F.3d 1107, 1111 (8th Cir. 1999) (32,000 surveillance monitor positions
nationwide was significant number).
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IV. CONCLUSION
For the reasons explained above, I find the ALJ’s decision is not supported by
substantial evidence on the record as a whole. The decision will be reversed and the
case remanded for a new RFC assessment and “step 5” determination. Accordingly,
IT IS ORDERED that the decision of the Commissioner is reversed pursuant
to sentence four of 42 U.S.C. § 405(g) and the case is remanded for further
proceedings consistent with the foregoing opinion. Final judgment will be entered by
separate document.
January 16, 2014.

BY THE COURT:

Richard G. Kopf
Senior United States District Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District Court for the District
of Nebraska does not endorse, recommend, approve, or guarantee any third parties or the services or products they
provide on their Web sites. Likewise, the court has no agreements with any of these third parties or their Web 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 some other site does not affect the opinion of the court.

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