Linden v. Colvin

Filing 19

MEMORANDUM AND ORDER that based on the lack of medical evidence in the record supporting the ALJ's determination of Linden's RFC, and the ALJ's failure to develop the record (particularly in light of the ALJ's partial rejectio n of the medical evidence that was in the record), the Court will reverse the Commissioner's decision and remand this case to the Social Security Administration for further proceedings consistent with this opinion. IT IS ORDERED: This case is reversed and remanded to the Commissioner for further proceedings consistent with this opinion. A separate judgment will be entered. Ordered by Judge John M. Gerrard. (ADB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RILEY Q. LINDEN,
Plaintiff,

7:15-CV-5005

vs.
MEMORANDUM AND ORDER
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.
This matter is before the Court on the denial, initially and upon
reconsideration, of the plaintiff Riley Linden's application for disability
insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 et
seq. and supplemental social security income benefits under Title XVI of the
Act, 42 U.S.C. § 1381 et seq. The Court has considered the parties' filings and
the

administrative

record.

For

the

reasons

discussed

below,

the

Commissioner's decision is reversed and remanded for further proceedings
consistent with this order.
PROCEDURAL BACKGROUND
Linden applied for disability insurance benefits on May 2, 2012. T165178. His claim was denied initially on July 31, and upon reconsideration on
November 9. T57-58, 81-82. Linden appealed and requested a hearing from
an administrative law judge (ALJ). T27-30. The ALJ held a hearing on March
28, 2014. T31. In a decision dated April 18, the ALJ found that Linden was
not disabled as defined under 42 U.S.C. §§ 416(i) or 423(d), and therefore not
entitled to benefits. T19-21.
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SEQUENTIAL ANALYSIS
Disability, for purposes of the Social Security Act, is defined as 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 12 months. 42 U.S.C. §§ 416(i) & 423(d).
To determine whether a claimant is entitled to disability benefits, the
ALJ performs a five-step sequential analysis. 20 C.F.R. § 404.1520(a)(4). At
step one, the claimant has the burden to establish that he has not engaged in
substantial gainful activity since his alleged disability onset date. Cuthrell v.
Astrue, 702 F.3d 1114, 1116 (8th Cir. 2013). If the claimant has engaged in
substantial gainful activity, he will be found not to be disabled; otherwise, at
step two, he has the burden to prove he has a medically determinable
physical or mental impairment or combination of impairments that
significantly limits his physical or mental ability to perform basic work
activities. Id.
At step three, if the claimant shows that his impairment meets or
equals a presumptively disabling impairment listed in the regulations, he is
automatically found disabled and is entitled to benefits. Id. Otherwise, the
analysis proceeds to step four. But first, the ALJ must determine the
claimant's residual functional capacity (RFC), which is used at steps four and
five. 20 C.F.R. § 404.1520(a)(4). A claimant's RFC is what he can do despite
the limitations caused by any mental or physical impairments. Toland v.
Colvin, 761 F.3d 931, 935 (8th Cir. 2014). At step four, the claimant has the
burden to prove he lacks the RFC to perform his past relevant work. Cuthrell,
702 F.3d at 1116. If the claimant can still do his past relevant work, he will
be found not to be disabled; otherwise, at step five, the burden shifts to the
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Commissioner to prove, considering the claimant's RFC, age, education, and
work experience, that there are other jobs in the national economy the
claimant can perform. Id.; Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010).
THE ALJ'S FINDINGS
Linden alleged disability as a result of Type II diabetes mellitus,
chronic obstructive pulmonary disease (COPD), bilateral knee osteoarthritis,
degenerative disc disease, and post-L4/S1 fusion. T262. He also reports
experiencing post-traumatic stress disorder, personality disorder, rule-out
narcissistic personality disorder, and alcohol abuse in full remission,
although these do not appear to have been advanced to the Commissioner as
a basis for disability. T262. He alleges an onset date of October 15, 2010.
T165, 172. At that time, Linden was 51 years old. T165. The ALJ found that,
based on his earnings record, Linden could remain insured through
December 31, 2015. T10. So, the question for the ALJ was whether Linden
had demonstrated a disability for some period of not less than 12 months
between October 10, 2010 and March 31, 2015.
At step one, the ALJ found that Linden had not engaged in substantial
gainful activity following his alleged onset date. T12. Next, at step two, the
ALJ found that Linden had several severe impairments: postL4/S1 fusion,
degenerative disc disease, bilateral knee osteoarthritis, COPD, and type II
diabetes mellitus. T12. At step three, the ALJ found that Linden had no
impairment that met or medically equaled a listed impairment. T14. The ALJ
then determined that Linden had the RFC to
perform medium work . . . as he can lift/carry 25 pounds
frequently and 50 pounds occasionally; sit, stand, and walk 6
hours each in an 8-hour workday; and push/pull within the
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weight limits. He can occasionally climb ramps and stairs, but
cannot climb ladders and scaffolds. He cannot have concentrated
exposure to pulmonary irritants. He cannot work at unprotected
heights or with vibrating tools.
T14-15. Because the ALJ's RFC finding is the critical issue in this appeal, the
Court will examine the ALJ's underlying reasoning in more detail.
The ALJ found that Linden had made inconsistent or unsupported
statements concerning his functional abilities, that diminished his credibility.
T16. The ALJ also noted a history of medical non-compliance. T17. And, the
ALJ noted, although Linden "complains of significant back pain and other
musculoskeletal symptoms, the evidence shows that he sought treatment
only at the emergency room and with his primary care providers, but not
with any orthopedic specialists as would be expected given his allegations of
debilitating symptoms." T17.
The ALJ acknowledged that two separate State agency medical
consultants had imposed more stringent physical limitations on Linden. T19.
Jerry Reed, M.D., examined Linden's medical records from his treating
physician, Michael Matthews, M.D., and found in a report dated July 23,
2012, that Linden's medically determinable impairments could reasonably be
expected to produce his pain or other symptoms, although he only found
Linden to be partially credible. T64. Dr. Reed found that Linden could lift 10
pounds frequently and 20 pounds occasionally; could sit, stand, or walk for a
total of about 6 hours in an 8-hour workday; and could push or pull within
the weight limits. T65. He could occasionally climb ramps and stairs, but not
ladders or scaffolds. T65. He could occasionally stoop, kneel, crouch, or crawl.
T65. His ability to reach overhead was limited. T66. And he should avoid
concentrated exposure to vibration, fumes, odors, dusts, gases, and poor
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ventilation. T66. Steven Higgins, M.D., reached the same conclusions in a
report dated November 9, 2012. T89-90.
But the ALJ found those opinions only "partially credible." T19. The
ALJ explained:
Evidence received at the hearing shows that the claimant is not
as limited in his abilities to lift/carry. In April 2010, six months
prior to his alleged onset date, the claimant reported working
hard physically landscaping and washing and painting walls, and
participating in a "pushing iron" contest. He was doing
landscaping work in August 2010, two months prior to his alleged
onset date. In August 2011, he reported carrying hacker-board
(which weighs 60-80 pounds). In September 2013, he discussed
going back to work and in October, Dr. Matthews reported that
the claimant was back at work. In October, the claimant dropped
a bag of cement (which weighs 60-90 pounds) on his foot.
After careful consideration of the evidence, the undersigned finds
that the claimant's medically determinable impairments could
reasonably be expected to cause some of the alleged symptoms;
however, the claimant's statements concerning the intensity,
persistence, and limiting effects of these symptoms are not
entirely credible for the reasons explained in this decision.
In sum, the above residual functional capacity assessment is
supported by the mild-to-moderate clinical and objective findings,
the lack of any treatment by orthopedic specialists for allegedly
disabling musculoskeletal symptoms, the claimant's adequate
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activities of daily living, including child care, his inconsistent
statements and treatment gaps, and the record as a whole.
T19-20 (citations omitted).
At step four, based on her RFC finding, the ALJ found that Linden
retained his ability to perform his past relevant work as a kitchen helper.
T20. Alternatively, the ALJ went on to find at step five that Linden did not
have a disability under the Medical-Vocational Guidelines, see 20 C.F.R. Part
404, Subpart P, Appx. 2. T20-21. And as a further alternative at step five, the
ALJ found, based on the vocational expert's testimony, that Linden could
perform other jobs that existed in significant numbers in the national
economy. T21. So, the ALJ found that Linden was not disabled. T21.
On August 18. 2015, the Appeals Council of the Social Security
Administration denied Linden's request for review. T1. Linden's complaint
(filing 1) seeks review of the ALJ's decision as the final decision of the
Commissioner under sentence four of 42 U.S.C. § 405(g).
STANDARD OF REVIEW
The Court reviews a denial of benefits by the Commissioner to
determine whether the denial is supported by substantial evidence on the
record as a whole. Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011) (citing
42 U.S.C. § 405(g)). Substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to support the
conclusion. Id. The Court must consider evidence that both supports and
detracts from the ALJ's decision, and will not reverse an administrative
decision simply because some evidence may support the opposite conclusion.
Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011). If, after reviewing the
record, the Court finds it is possible to draw two inconsistent positions from
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the evidence and one of those positions represents the ALJ's findings, the
Court must affirm the ALJ's decision. Id.
DISCUSSION
Linden appeals the ALJ's order on two primary grounds: (1) that the
ALJ's RFC determination was not supported by substantial evidence, and (2)
the ALJ failed to fully and fairly develop the record. Filing 16 at 2. The Court
agrees on both points.
THE ALJ'S RFC FINDINGS WERE NOT BASED ON SUBSTANTIAL EVIDENCE
BECAUSE THEY WERE NOT SUPPORTED BY MEDICAL EVIDENCE
The ALJ may assess a claimant's RFC "based on all relevant evidence,"
but the determination of RFC is a "medical question." Lauer v. Apfel, 245
F.3d 700, 704 (8th Cir. 2001). Therefore, some medical evidence must support
the determination of the claimant's RFC. Id. This evidence should include at
least some supporting evidence from a medical professional. Hutsell v.
Massanari, 259 F.3d 707, 712 (8th Cir. 2001). But in this case, the ALJ
rejected the only medical opinions in the record.
To begin with, the ALJ's basis for rejecting those opinions is not wellsupported. It is evident that the ALJ had substantial concerns about Linden's
credibility. The Court does not disagree with those concerns. But this is not a
case in which the claimant's condition is wholly—or even mostly—subjective.
There is little dispute about Linden's underlying physical diagnoses. Nor is it
a case in which medical opinion testimony was based on acceptance of the
claimant's subjective complaints. Dr. Reed and Dr. Higgins both expressly
premised their opinions on finding that Linden's own statements were only
partially credible. T64, 88. In other words, the finding that Linden was only

7

partially credible was already "baked into" their medical opinions—so,
questions about Linden's credibility do not support rejecting those opinions.
Nor do the ALJ's observations about Linden's activities support
rejection of Dr. Reed's and Dr. Higgins' medical opinions. True, there is
evidence that Linden was engaged in activity exceeding what the medical
evidence suggests was advisable. But most of the examples pointed out by the
ALJ preceded both medical opinions by no less than several months. Nor is it
necessarily inconsistent with medical limitations if a claimant (who had been
denied benefits, and had a family to support) exceeded those limitations in an
effort to return to work. It would be very strange if an ill-advised attempt to
work could somehow become evidence of malingering. It is not irrelevant that
a claimant exceeds his claimed medical limitations. But it is not proof that
those limitations did not exist. Many people do not always follow their
doctor's advice, but that doesn't mean the advice was wrong.
But more important than the ALJ's basis for rejecting the medical
opinion testimony in the record is what the ALJ did as a result: crafted new
medical limitations without explaining where those limitations came from.
The Court recognizes that in evaluating a claimant's RFC, an ALJ is not
limited to considering medical evidence exclusively, and that even though the
RFC assessment draws from medical sources for support, it is ultimately an
administrative determination reserved to the Commissioner. Cox v. Astrue,
495 F.3d 614, 619 (8th Cir. 2007). But that determination must be based on
medical evidence that addresses the claimant's ability to function in the
workplace. Stormo v. Barnhart, 377 F.3d 801, 807 (8th Cir. 2004). And there
is literally no medical evidence in this record supporting the ALJ's
determination that Linden can lift or carry 25 pounds frequently and 50
pounds occasionally.
8

Those are important numbers, because the difference between the
ALJ's finding and the medical evidence is the difference between being able
to perform medium level or only light work—meaning that those numbers
were necessary to find that Linden had not met his burden of showing he was
unable to perform his past relevant work. Had he met that burden, the
burden of proof would have shifted to the Commissioner. See Eichelberger v.
Barnhart, 390 F.3d 584, 591 (8th Cir. 2004). And the Commissioner concedes
that if the ALJ erred in finding Linden capable of medium level work, the
error is not harmless. See filing 17 at 14 n.4.
It is the ALJ's function to resolve conflicts among the various treating
and examining physicians. Estes v. Barnhart, 275 F.3d 722, 725 (8th Cir.
2002). But here, there was no conflict, except between the medical experts
and the ALJ. And the ALJ's solution to that conflict was to find the medical
opinion testimony "partially credible" and draw weight limitations for Linden
without anticipating the basis for those limitations. This, the Court
concludes, is prejudicial error requiring reversal.
THE ALJ FAILED TO FULLY DEVELOP THE RECORD
The ALJ has both the authority and the duty to fully develop the
record, independent of the claimant's burden of proof. Scott ex rel. Scott v.
Astrue, 529 F.3d 818, 824 (8th Cir. 2008). For example, in Scott, the Eighth
Circuit held that where an ALJ denied benefits in part because a claimant's
IQ test results were not current on the date of the hearing, the ALJ should
have ordered updated tests. Id. In this case, the ALJ made a disability
determination despite finding that Linden had a degenerative physical
impairment, and despite rejecting the only two medical opinions in the
record, which were themselves almost 2 years out of date by the time of the
ALJ's decision.
9

There is no bright line rule indicating when the Commissioner has or
has not adequately developed the record; rather, such an assessment is made
on a case-by-case basis. Mouser v. Astrue, 545 F.3d 634, 639 (8th Cir. 2008).
There are three particular aspects to the ALJ's failure to develop the record
in this case. First, it seems to have been evident that the medical records
before the ALJ were incomplete. It was, in fact, discussed at the hearing:
when Linden testified about some emergency room visits, the ALJ asked
whether she had those records. T45. Linden's counsel replied, "All I know,
Judge, is we requested records from all the sources we're aware of and have
sent in all the records we've received. I guess that's all I can tell you." T45.
But social 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, 319-20 (8th Cir. 2010).
Furthermore, the record suggests that contrary to the ALJ's decision, Linden
was referred to an orthopedic specialist in 2013. T516, 521, 528, 530, 537-38.
But no information relating to those examinations was obtained.
Second, the limitations of the record were particularly implicated by
the ALJ's conclusion that the medical opinion testimony that was available
was deficient. There were some obvious steps that could have been taken to
develop the record with respect to Linden's physical limitations and establish
a medical basis for an RFC determination. Obviously, it would have been
extremely helpful to have opinion testimony from Linden's treating
physician, Dr. Matthews.1 And in the absence of other persuasive opinions,

1

The Commissioner argues that opinion testimony was sought from Dr. Matthews as part

of the administrative process, but he simply didn't respond. Filing 17 at 16 (citing T211215). But it is not evident to the Court how clear or persistent such requests might have
been. Compare filing 16-1. While the Court is sympathetic to the Commissioner's position,

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the ALJ could have ordered a consultative examination, rather than crafting
an RFC based on "partially credible" opinions from non-treating medical
experts. It is reversible error for an ALJ not to order a consultative
examination when such an evaluation is necessary for him or her to make an
informed decision. Haley v. Massanari, 258 F.3d 742, 749 (8th Cir. 2001). As
the Eighth Circuit explained in finding that an ALJ's denial of disability
benefits was unwarranted,
[i]n the case at bar, there is no medical evidence about how [the
claimant]'s impairments affect his ability to function now. The
ALJ relied on the opinions of non-treating, non-examining
physicians who reviewed the reports of the treating physicians to
form an opinion of [the claimant]'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. 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. In
our opinion, the ALJ should have sought such an opinion from
[the claimant]'s treating physicians or, in the alternative, ordered
consultative examinations . . . to assess [the claimant]'s . . .
residual functional capacity. . . . An administrative law judge
may not draw upon his [or her] own inferences from medical
reports.

it is still unclear to the Court what the ALJ did to fulfill her duty to develop the record with
respect to Dr. Matthews.

11

Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000) (citations omitted).
Similar circumstances are present here.
Finally, the Court observes that the ALJ's determination rested in part
on issues that were not raised by the ALJ at the administrative hearing. For
instance, the ALJ discredited Linden's claims in part because of Linden's
alleged failure to see an orthopedic specialist. T17, 20. As noted above, that
appears to have been an incorrect assumption—and, it was an assumption
that might have been corrected had the ALJ asked Linden about it at the
hearing. An ALJ is required to consider the reasons for a claimant's failure to
seek treatment, or non-compliance with treatment, before discounting the
claimant's credibility on that basis. Pate-Fires v. Astrue, 564 F.3d 935, 945
(8th Cir. 2009). But here, the ALJ rested her credibility determination on the
claimant's purported failure to seek a particular kind of treatment, without
asking the claimant about it. Nor did the ALJ ask Linden about the other
asserted inconsistencies in the record—for instance, why he had exceeded his
medical limitations, or why there were gaps in his treatment. On issues like
these—issues for which the claimant might have a reasonable explanation or
clarification to offer—the ALJ's duty to develop the record suggests a
responsibility to ask the claimant for an explanation before holding the lack
of an explanation against him.2

2

Linden also suggests that the ALJ should have developed the record with respect to

alleged mental impairments. Filing 16 at 32-33. To be clear, the Court is not finding error
in that regard: it is not clear that any mental impairments were clearly presented to the
Commissioner as bases for a finding of disability, and the ALJ is not obligated to
investigate a claim not presented at the time of the application for benefits or offered at the
hearing as a basis for disability. Mouser, 545 F.3d at 639. But obviously, nothing precludes
counsel or the Commissioner from investigating those issues on remand.

12

CONCLUSION
Based on the lack of medical evidence in the record supporting the
ALJ's determination of Linden's RFC, and the ALJ's failure to develop the
record (particularly in light of the ALJ's partial rejection of the medical
evidence that was in the record), the Court will reverse the Commissioner's
decision and remand this case to the Social Security Administration for
further proceedings consistent with this opinion.
IT IS ORDERED:
1.

This case is reversed and remanded to the Commissioner
for further proceedings consistent with this opinion.

2.

A separate judgment will be entered.

Dated this 14th day of April, 2017.
BY THE COURT:

John M. Gerrard
United States District Judge

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