Bales v. Colvin

Filing 22

OPINION AND ORDER REVERSING AND REMANDING THE COMMISSIONER'S DECISION. Motions terminated: 11 MOTION for Summary Judgment filed by Michael L. Bales. Signed by U.S. District Judge Roberto A. Lange on 3/26/14. (SKK) (Main Document 22 replaced on 3/26/2014) (SKK).

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

SOUTHERN DIVISION

MICHAEL L. BALES,
Plaintiff,

vs.

CAROLYN W. COLVIN, Acting

Commissioner of Social Security,
Defendant.

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^''r:1

CIV 13-4021-RAL

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OPINION AND ORDER
REVERSING AND
REMANDING THE

COMMISSIONER'S DECISION

*

PlaintiffMichael L. Bales (Bales) seeks reversal ofthe Commissioner of Social Security's
decision denying Bales's application for Social Security Disability Insurance (SSDI) benefits.
Alternatively, Bales requests that this Court remand the case for a further hearing on issues he

has raised.1

For the reasons explained below, this Court reverses and remands the

Commissioner's decision for further consideration.
I.

Procedural Background

On June 5,2009, Bales filed an application for SSDI benefits under Title II of the Social

Security Act alleging disability since January 20, 2008, due to degenerative disc disease,
depression, memory and concentration problems, and post-laminectomy syndrome. AR217,182,
210. Bales later alleged that the side effects of his medications further contributed to his

'Bales entitled his appeal a "Motion for Summary Judgment." Doc. 11. Under the Standing

Order of this Court filed on December 5, 2000, summary judgment is not the means for disposition
of Social Security appeals in this district. Rather, once a plaintiff files a complaint and the defendant
files an answer in a Social Security matter, the court enters an order setting a briefing schedule and
thereafter makes a determination concerning the Commissioner's decision. This Court entered such
a briefing schedule, Doc. 8, and Bales's appeal is ripe for decision by this Court.

;

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Citations to the appeal record will be cited as "AR" followed by the page or page numbers.

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disability. AR 78. The Social Security Administration denied Bales's application initially on
November 23, 2009, and again upon reconsideration on April 5, 2010. AR 17, 69, 72, 76. In

late April 2010, Bales requested a hearing before an Administrative Law Judge (ALJ). AR 78.
The ALJ conducted a hearing, AR 37, and issued a decision in November of 2011 finding that
Bales was not disabled and thus was not entitled to benefits. AR 17-30. Bales then requested
that the Appeals Council review the ALJ's decision and submitted new evidence. The Appeals
Council considered the new evidence but denied Bales's request for review, thus making the
ALJ's opinion the final decision of the Commissioner. AR 1-6.
II.

Factual Background

Bales was born on October 24,1961. AR 44,182. He attended high school through his

junior year and later earned a GED. AR 44. Bales managed a television and appliance store
from 1987 until approximately 2001 when he began working as a sales representative at a radio
station. AR 45-46,221. The radio station eventually let Bales go, AR 47, whereafter he became
general manager at a boat dealership in late 2002. AR 211.

On January 12, 2006, Bales injured his back at work while clearing chunks of ice from

a boat cover. AR 51,292,418. An MRI taken the next day showed disk herniations, advanced
degenerative disc disease, and spondylosis at levels L4-L5 and L5-S1 of Bales's spine. AR 419,
505. At a March 3, 2006 appointment with Dr. Mikel Holland, Bales reported back pain with
radiation to the left hip and leg, changes in bowel habits, urination difficulty, and some erectile
dysfunction. AR 418. Dr. Holland noted that Bales had undergone a microdiscectomy at L4-L5

eight years ago and remarked that it was unlikely that simple non-operative treatment would
resolve Bales's problems. AR 418-19. An April 4,2006 back surgery performed by Dr. Edward

Seljeskog resulted in a complete resolution of Bales's pain. AR 292, 300.3 By January 2007,

however, Bales's pain had returned. AR 292, 300. Dr. Seljeskog diagnosed Bales with a
recurrent disc herniation at L4-L5 on February 2,2007. AR 311. An MRI taken that day showed
encasement ofthe left L5 nerve root, disc herniation at L4-L5, and disc degeneration with severe
loss of disc height at L5 -SI. AR296.

Bales's workers' compensation case manager referred him to Dr. Rand Schleusener for
a second opinion on his back. AR 292. At a March 15,2007 appointment, Bales reported to Dr.
Schleusener that his back pain was making him quite miserable, but denied any pain, numbness,
tingling, or weakness in his legs. AR 292. On examination, Bales had full range of motion in
his lumbar spine, and his lower extremities showed normal motor strength and a full range of
motion without any pain or limitations. AR 292. Dr. Schleusener agreed that Bales had a
recurrent disc herniation at L4-L5 and stated that another surgery was a reasonable option. AR
292.

Bales saw Dr. Holland on March 26,2007, for a renewal ofhis Effexor4 prescription. AR
420. Bales reported trouble sleeping and Dr. Holland assessed him as having insomnia. AR 420.
Bales saw Dr. Seljeskog for a followup on April 27,2007, during which he complained of back
and radicular leg pain. AR 309. Dr. Seljeskog recommended surgery, stating that "[w]e will
plan to be fairly aggressive with our disc removal." AR 309. On May 2, 2007, Dr. Seljeskog

3Although Bales's April 4,2006 back surgery and the related treatment notes are absent from

the administrative record, this surgery is discussed in other medical records, AR 292, 300, and both

parties agree that the surgery took place. Doc. 12 at 5; Doc. 18 at 2.

4Effexor is an antidepressant used to treat major depressive disorder, anxiety, and panic

disorder. See Drugs.com, Effexor, http://www.drugs.com/effexor.html (last visited March 18,2014).

performed a bilateral L4-L5 hemilaminectomy and discectomy on Bales. AR 307. At a post
operative follow-up appointment on May 22, 2007, Bales reported that he still had pain in his

right leg and Dr. Seljeskog noted that Bales had a foot drop when he walked on his heels. AR
306. Bales saw Dr. Seljeskog again on June 1,2007. AR 305. Although Bales complained of
continued back pain and radicular symptoms on the left, Dr. Seljeskog noted that Bales "move[d]
about quite readily" and appeared to be "quite comfortable." AR 305. An MRI from that day

showed a centrally protruding disc at L4-L5, which Dr. Seljeskog felt "could be affecting either
the right or the left traversing nerve roots." AR 294, 305. Dr. Seljeskog further noted that the
MRI showed "a lot of reactive change in the adjacent vertebral body. There is a tiny L5-S1
central disc protrusion." AR 305. Dr. Seljeskog released Bales to light duty work. AR 305.
A physical therapy progress report from July 12, 2007, described Bales as generally

having five out often pain and being unable to tolerate prolonged standing, but as having made
good gains in flexibility and mobility. AR 298. Bales was seen at Dr. Seljeskog's clinic the next
day and was noted to have improved from his last appointment. AR 304. Bales had been
working one to two hours a day and was told that he could work more if it was tolerable. AR
304. Bales was also allowed to increase the fifteen to twenty pounds he was already lifting if he
could tolerate it. AR 304. Bales did report, however, that sitting or standing for any length of
time was difficult for him. AR304.

Bales's workers' compensation case manager referred him to another surgeon, Dr. Daniel

G. Tynan, on July 24, 2007. AR 300-02. An examination revealed that Bales had "slight

difficulty" walking onhis rightheel because of "mild foot drop[,]" minimal wealcness in the right
foot, and a mildly positive straight leg raise bilaterally, causing both back and leg pain. AR 301.

Dr. Tynan remarked that Bales's most recent MRI showed severe degenerative disk disease at

levels L4-L5 and L5-S1, but did not find any significant disc herniations. AR 301. Dr. Tynan
opined that given these "significant degenerative changes" and Bales's multiple back surgeries
"it is not surprising that he has some chronic low back pain." AR 302. Dr. Tynan told Bales his
options were to redo conservative treatment, simply live with the pain, or consider lumbar fusion
surgery! AR 301-02. Dr. Tynan explained that the fusion surgery would be "an attempt to

improve [Bales's] back pain so that he can return to work duty and not to be chronically
disabled." AR302.

In an August 9,2007 letter to Bales's workers' compensation case manager, Dr. Seljeskog

opined that Bales had reached maximum medical improvement and stated that he did not
anticipate the need for any further surgical intervention. AR 303. At an appointment the next

day, Dr. Holland discussed Bales's back treatment options with him and assessed Bales as
having, among other things, depression and nicotine dependence. AR 422-23.
On referral from his workers' compensation insurer, Bales then saw Dr. Jerry Blow, a

physiatrist, on September 24,2007. AR 342. Bales reported constant pain in his low back and
an intermittent sharp, burning pain in his right leg aggravated by walking, sitting, standing,
driving, lifting, bending, twisting, and climbing steps. AR 343. Bales stated that he worked one
to two hours two days a week and four to five hours three days a week. AR 344. He described

his job as involving lifting, bending, twisting, reaching, driving, writing, typing, filing, walking,
sitting, standing, mechanic work, and sweeping. AR 345. Dr. Blow recommended facet block
injections, physical therapy, no lifting over fifteen pounds, no bending, twisting, or squatting,

avoiding awkward positions, and working no longer than three hours a day, six days a week. AR
346.

Dr. Heloise Westbrook administered a nerve block and steroid injection to Bales's back
on October 5,2007. AR 413-16. Her exam revealed that Bales had no difficulty ambulating and

walking on his toes and heels, five out of five strength in his lower extremities, and a positive
Waddell sign for rotation. AR 416. Bales did have a positive straight leg raise bilaterally,
decreased hip flexion, and tenderness along his lower lumbar region, however. AR 416.
Bales saw Dr. Blow again on October 22, 2007. AR 338. Bales reported that the

injections seemed to make his back pain worse and that he had some good days and some bad

days at work. AR 338. Dr. Blow started Bales on Cymbalta,5 recommended that he continue
taking Celebrex6 and Tizanidine,7 and prescribed physical therapy.

AR 339.

He also

recommended that Bales increase the amount oftime he spent at work each day by one hour each

week until Bales saw him again. AR 339. Bales had a follow-up appointment with Dr. Blow
on November 12, 2007. AR 335. Although Bales reported significant back pain, he had
increased his work hours per Dr. Blow's instructions and had even worked three nine-hour days.
AR 335. Other than walking in a somewhat guarded manner, Bales's gait was normal, and he

5Cymbalta is an antidepressant used to treat depression, anxiety, fibromyalgia, and chronic

muscle or joint pain. See Drugs.com, Cymbalta, http://www.drugs.com/cymbalta.html (last visited

March 18, 2014).

6Celebrex is a nonsterodial anti-inflammatory used to treat pain or inflamation. See

Drugs.com, Celebrex, http://www.drugs.com/celebrex.html (last visited March 18, 2014).

7Tizanidine is a muscle relaxant used to relieve spasms and increased muscle tone caused by

multiple sclerosis, stroke, or brain or spinal injury. MedlinePlus, U.S. National Library ofMedicine,
National Institutes ofhealth, http://www.nlm.nih.gov/medlineplus/druginfo/meds/a601121 html (last
visited March 18, 2014).

could heel-and-toe walk with ease. AR 336. A straight leg raise done that day was negative.
AR336. Dr. Blow took Bales offCymbalta and started him on Lyrica.8 AR336. He also told
Bales to cut his work hours back to five hours a day for one week before going to six hours a day
for three weeks. AR 336. Bales had a phone conference with Dr. Blow on November 27,2007.
AR 333. Bales reported that he was no longer having constant leg and back pain and that he was
working six hours a day. AR 333. Dr. Blow's impression was that Bales's overall condition had
improved with therapy and medications. AR 333.

At a December 11,2007 appointment with Dr. Blow, Bales reported an increase in pain

and having trouble sleeping. AR 331. Although Bales's lumbar range of motion was limited,
his straight leg raise was negative. AR 331-32. Dr. Blow's impression was that Bales was
approaching maximum medical improvement. AR 332. He stated that Bales could work up to
seven hours a day and ordered a functional capacity evaluation (FCE). AR 332.
Nano Johnson, a physical therapist (PT), conducted an FCE for Bales on January 2,2008.
AR 519-22. In a letter to Dr. Blow, PT Johnson stated that the FCE indicated that Bales was

"able to work at the LIGHT Physical Demand Level for an 8-hour day according to the
Dictionary of Occupational Titles. U.S. Department of Labor, 1991." AR 519. PT Johnson

reported further that Bales had not shown any symptom or disability exaggeration behavior

during the FCE.

AR 519.

The FCE form listed particular work activities and provided

corresponding blanks for the evaluator to identify the weight limit at which the patient could

perform the activity and whether the patient could do so infrequently, occasionally, frequently,

8Lyrica, or pregabalin, is used to treat, among other things, neuropathic pain associated with

spinal cord injury. See Drugs.com, Lyrica, http://www.drugs.com/lyrica.html (last visited March 18

2014).

or constantly. AR 521. PT Johnson found that Bales could not power lift or back lift any weight,

even infrequently; could lift twenty pounds occasionally and twenty-five pounds infrequently

using a leg lift; could shoulder lift and overhead lift fifteen pounds occasionally; could
occasionally two-hand carry fifteen pounds and one-hand carry ten pounds; could walking

push/pull twenty-five pounds occasionally and thirty pounds infrequently; and could standing
push/pull thirty-five to fifty-five pounds occasionally and forty to sixty pounds infrequently. AR

521. The FCE form as completed by PT Johnson indicated that Bales could not lift, carry, or
push or pull any weight frequently. AR 521. In terms of posture, PT Johnson found that Bales
could squat and kneel occasionally and bend only infrequently. AR 521. Finally, PT Johnson
found that Bales could sit constantly; could stand, walk, and forward reach frequently; and could
overhead reach occasionally. AR 521.

When Bales had a phone conference with Dr. Blow on January 15,2008, he was in "quite
a bit of pain" and reported needing to increase his hydrocodone9 intake to cope with working
seven hours a day. AR 328. Bales also stated that his boss at the boat dealership had recently

told him that the dealership was no longer able to accommodate his work restrictions. AR 328.
Dr. Blow noted that Bales had recently undergone an FCE and that Bales said he was sore for
two or three days afterwards. AR 328. According to Dr. Blow, the FCE revealed that Bales

could work in a light duty capacity: Bales could bend and crawl infrequently; squat, kneel, and
reach overhead occasionally; sit constantly; stand, walk, and forward reach frequently; lift twenty
pounds occasionally and twenty-five pounds infrequently using a leg lift; shoulder lift fifteen

9Hydrocodone is a narcotic pain reliever. See Drugs.com, Hydrocodone and Acetaminophen,

http://www.clrugs.com/hydrocodone.html (last visited March 19,2014).

pounds occasionally to infrequently; one-handed carry ten pounds occasionally; walking
push/pull twenty-five pounds occasionally and thirty pounds infrequently; and standing push/pull
thirty-five to fifty-five pounds occasionally and forty to sixty pounds infrequently. AR 328-329.

Dr. Blow wrote that the FCE revealed that Bales did not demonstrate any symptoms ofdisability
exaggeration.

AR 329.

Dr. Blow recommended that Bales continue taking Lyrica and

Tizanidine, wean offhydrocodone, and released Bales to work under the guidelines ofthe FCE.
AR 330.

On January 31,2008, Bales saw Dr. Holland to discuss his medications and mood. AR

426. Bales reported feeling depressed, frustrated, and anxious, and discussed committing suicide
by crashing his car. AR 426. Dr. Holland referred Bales to the emergency room for a mental
health assessment that day. AR 427. The mental health staff arranged for Bales to see Dr.
Westbrook for pain management, Dr. Ulises Pesce, a psychiatrist, for adjustments of his
medications, and a counselor. AR 427.

Bales saw Dr. Westbrook on February 2,2008. AR 412. Bales reported pain in his back
that occasionally radiated down his leg. AR 412. On examination, Bales had five out of five
strength in his lower extremities. AR 412. Dr. Westbrook took Bales off hydrocodone and
started him on oxycodone10 extended release. AR 412.

Bales visited Dr. Pesce on February 6, 2008, for his depression.

AR 355.

On

examination, Bales showed no memory deficits or difficulties with abstract thinking, and his
attention, concentration, insight, and judgment were good. AR 356. Dr. Pesce diagnosed Bales

Oxycodone is opioid medication used to treat moderate to severe pain. See Drugs.com,
Oxycodone, http://www.drugs.com/oxycodone.html (last visited March 19, 2014).

with "[m]ajor depressive disorder, single episode, without psychosis, severe." AR 356. Dr.
Pesce gave Bales a Global Assessment of Functioning (GAF)11 score of fifty-five and
recommended that he increase his dosage of Lyrica and Effexor. AR 356-57. Bales saw

Therapist Jodi Owen on February 12,2008, to discuss his depression and pain issues. AR 394.
Bales returned to Dr. Westbrook on February 29,2008, complaining of continuing back

pain. AR 411. Dr. Westbrook decreased Bales's Celebrex and Lyrica and replaced his
oxycodonewithKadian.12 AR411.

Dr. Pesce reevaluated Bales on March 12,2008. AR 388. Bales described not noticing
much improvement and experiencing depression and angry outbursts. AR 388. Dr. Pesce wrote
that Bales's depression "seems to be quite severe" and that Bales "has a lot of problems with
intermittent explosive type of reactions." AR 388. Dr. Pesce started Bales on Trileptal in
addition to his Effexor. AR388.

Bales returned to Dr. Westbrook on March 28, 2008. AR 410. He stated that his back
pain made it difficult to sleep and that he was only getting fair to poor relief from the morphine
and pregabalin. AR 410. Dr. Westbrook recommended that Bales continue taking these two
medications and that he repeat the FCE because "the initial evaluation was done over a very brief
time and may not necessarily reflect [Bales's] functional capacity." AR 410. Dr. Westbrook

"The GAF is a numerical assessment between zero and 100 that reflects a mental health
examiner's judgment of the individual's social, occupational, and psychological function " Hurdv
Astrue. 621 F.3d 734, 736 (8th Cir. 2010).
'

12"Kadian (morphine) is an opioid pain medication .... used to treat moderate to severe

pain." Drugs.com, Kadian, http://www.drugs.com/kadian.html (last visited March 19, 2014).
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proposed a "two-day functional capacity evaluation as this could more accurately assess [Bales's]
functional capacity." AR 410.

Bales saw Therapist Owen on May 1,2008. AR 384. By that point, he had seen her on
several occasions to discuss his depression and how to adjust to the limiting effects of his back
pain. AR 385, 386, 387, 390-91, 392. Bales reported that he was thinking about applying for
disability. AR 384. Bales visited Dr. Pesce for a medication check on May 12, 2008, during

which Bales reported being "slightly better" at controlling his explosive reactions. AR 382.
After seeing Bales in early June 2008, Dr. Pesce wrote that Bales seemed "to be stable at this
point, is not having any new complaints." AR 380.

On June 3,2008, Bales saw Dr. Westbrook for a reevaluation. AR 349. Dr. Westbrook
recommended, among other things, that Bales "exercise for strengthening and conditioning of

his lower back daily." AR 349. She remarked that Bales might be a "candidate for spinal cord
stimulation therapy as [he] remains with intractable pain and the research has shown spinal cord
stimulation therapy can optimize his pain control." AR349.
Bales visited Dr. Blow on June 24,2008, for an evaluation concerning whether he needed

further treatment and a new FCE. AR 322. Bales described significant back pain with activity
and said that he had to stop five times on the three-hour drive to see Dr. Blow. AR 322.
Nevertheless, Bales stated that his daily activities included showering, dressing, cleaning the

house, and preparing meals. AR 326. On examination, Bales's straight leg raise was "excellent,"
with Dr. Blow noting that Bales "held his leg extended for a considerable length of time which
was surprising for someone with his degree of low back pain." AR 327. Bales's lumbar flexion

was thirty-five degrees, his extension was "better," and his side bending and rotation were good.
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AR 327. Dr. Blow noted that Bales moved "about the room very easily,"and that Bales did not
demonstrate any "pain behavior" while doing his exercises that day. AR 327. Dr. Blow
concluded that Bales's FCE from January 2,2008 was "still valid and can be used for vocational
planning." AR 327. He further found that a spinal cord stimulator was unnecessary given
Bales's "great mobility and ability to hold a straight leg raise without coaxing today [.]" AR 327.
Bales revisited Dr. Westbrook on July 7, 2008. AR 348. Dr. Westbrook wrote that

despite Bales's surgeries, medications, and injection therapy, Bales continued to "experience

unrelenting intractable lower back pain." AR348. Dr. Westbrook recommended a trial of spinal
cord stimulation for Bales's pain. AR 348. Bales saw Dr. Pesce on July 15, 2008 for a
medication check. AR 376. Dr. Pesce noted that Bales "seems to be doing quite well" and
scheduled him for a followup in three months. AR 376.

Rick Ostrander, a vocational rehabilitation counselor hired by Bales's attorney, completed
a vocational evaluation in early August 2008 in connection with Bales's work injury. AR 523-

531. Ostrander reviewed Bales's FCE and noted that although the FCE placed Bales in the light
category of physical exertion, the specific results of the FCE "essentially represent[ed] a

restricted range of light duty work." AR 528. Ostrander ultimately concluded that Bales was
"essentially limited to light duty work."

AR 530.

A few days later, Ostrander sent Dr.

Westbrook a letter detailing what he believed were some additional limitations Bales may have
had and asking Dr. Westbrook whether she agreed. AR 506.

Bales continued to see Dr. Westbrook for pain management over the next few months.

At an August 7, 2008 appointment, Dr. Westbrook encouraged Bales to do strengthening and

conditioning exercises for his lower back "as tolerated" and continued him on his medications.
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AR 409. During a September 11, 2008 appointment, Dr. Westbrook recommended again that
Bales try spinal cord stimulation, but noted that they would need to wait for Bales's workers'
compensation insurance to approve the procedure. AR 407-08. On September 29, 2008, Dr.

Westbrook responded to Ostrander's letter and indicated that she agreed with Ostrander's
statement that Bales had chronic pain that varied unpredictably in intensity, that when Bales had

a bad day he would be unable to function at the level identified in the FCE, and that Bales's pain
and medication side effects made him unproductive and ineffective in his job at the boat
dealership. AR506.

At an October 14,2008 appointment with Dr. Pesce, Bales reported having little trouble
with his emotions and experiencing no depression. AR 372. Bales also stated that he was
"managing his back pain much better." AR 372. At a November 6,2008 appointment with Dr.
Westbrook, however, Bales rated his pain as eight out often, and Dr. Westbrook wrote that Bales
was in "excruciating pain." AR 406. When Bales saw Dr. Pesce approximately a week later, he
stated that although he was in a lot of pain that day, things in general were "much better for him."
AR 370. Bales further reported that the management of his pain "seems to be working better."
AR 370.

In a November 2008 letter to Bales's attorney, Ostrander stated that although the FCE and

Dr. Blows's opinion placed Bales in a "restricted range of light duty work[,]" Dr. Westbrook had

confirmed that Bales suffered additional limitations. AR 350. Ostrander believed that these
additional limitations would preclude Bales from functioning productively at work and make
vocational rehabilitation futile. AR 350.

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When Bales saw Dr. Westbrook again on December 4, 2008, he rated his pain as eight
out often. AR 405. Dr. Westbrook's impression was that Bales had post-laminectomy syndrome

and she continued him on Kadian. AR 405. When Bales saw Dr. Pesce for a medication check
on December 17,2008, Dr. Pesce noted that Bales seemed to be "experiencing a lot of pain" and

that Bales was frustrated by this. AR 368. Bales reported continued back pain and feeling
discouraged when he saw Dr. Pesce for a recheck on January 21, 2009. AR 366. At an
appointment with Dr. Westbrook the next day, Bales described his pain as a burning, stabbing
sensation that radiated to both legs and made sleeping difficult. AR 404. Bales had similar

appointments with Dr. Pesce and Dr. Westbrook in March 2009, reporting back pain that radiated
to his legs, AR 402, and feeling discouraged, AR 364.

After seeing Bales on April 21, 2009, Dr. Pesce wrote that Bales was doing "fairly
well[,]" but that his back pain was still "a serious problem." AR 362. In her notes from an April
23,2009 appointment with Bales, Dr. Westbrook remarked that Bales "paces his activity and is

able to attend [to] his activities of daily living with minimal interference. Excessive activity
incapacitate [sic] the patient." AR 401.

Bales rated his pain level as seven out of ten at a May 2009 appointment with Dr.
Westbrook, and Dr. Westbrook continued Bales on Kadian. AR 400. When Bales saw Dr. Pesce

for a June 2,2009 appointment, Dr. Pesce remarked that Bales was doing "quite well" and noted
that Bales wished to cut down on his medications. AR 360. Bales however reported continued
back pain to Dr. Westbrook on June 25, 2009, again rating it as a seven out often. AR 486.
Bales saw Dr. Pesce for a medication check July 14, 2009. AR 358. Bales reported

going camping with his family and enjoying it "very much." AR 358. He also said that he was
14

tolerating the reduction in his Trileptal and that he would like to discontinue it. AR. 358. Dr.
Pesce noted that Bales seemed to be "doing well." AR 358. WhenBales saw Dr. Westbrook on

July 17, 2009, he requested a "letter regarding his disability for continued credit disability
insurance." AR 398. Although Dr. Westbrook noted that Bales was able to complete his
activities of daily living with minimal interference from his pain, she stated that Bales was

"unable to work due to his low back pain despite having surgery. [Bales] still remains disabled."
AR398.

Bales had a followup with Dr. Pesce on August 11, 2009. AR 453. Bales had stopped
taking Trileptal, and Dr. Pesce did not see any problems with Bales's mental status. AR 453.
Dr. Pesce noted that although Bales still had "a lot of problems" with his pain, he was managing
it "quite well with the help ofthe pain specialist." AR 453. Bales saw Therapist Owen that same
day. AR 459. Bales reported that he was "doing a little better overall" and that he had lowered
his pain medication. AR 459. Bales saw Dr. Westbrook three days later for back pain that
radiated down his left leg. AR 399. Dr. Westbrook wrote that Bales "still has intractable pain
which is very debilitating." AR 399. She recommended that Bales exercise for strengthening
and conditioning of his lower back and continue taking Kadian. AR 399. Bales repeated his
complaint of back pain that radiated to his legs at an appointment with Dr. Westbrook on
October 1,2009. AR512.

In connection with Bales's application for disability insurance benefits, Dr. Doug Soule,

a non-examining state agency physician, completed a Psychiatric Review Technique (PRT) form

for Bales on October 29, 2009.

AR 431.

Dr. Soule found that Bales had a medically

determinable impairment of major depression that was not severe with coexisting nonmental
15

impairments. AR 431, 434. Dr. Soule determined that Bales had experienced one or two
episodes of decompensation and that Bales's depression would result in mild limitations in his
activities ofdaily living, social functioning, and his ability to maintain concentration, persistence,
or pace. AR 441. In the "consultant's notes" section ofthe PRT form, Dr. Soule noted that Bales

had alleged limitations resulting only from his back pain, rather than from his depression, in his
initial function report. AR 443. After discussing some of the medical records from Bales's
appointments with Dr. Pesce, Dr. Soule concluded that although Bales still had issues with back
pain, the medical records "indicate that from a psych point ofview that things are getting better."
AR443.

Bales saw both Dr. Pesce and Dr. Westbrook on November 12,2009. AR 455,511. Dr.
Pesce wrote that although Bales was doing "fairly well[,]" he was still having a lot of problems
with back pain. AR 455. Bales told Dr. Westbrook that sitting exacerbated his pain and that his
pain had increased over the past month. AR 511. Dr. Westbrook recommended that Bales
exercise daily for strengthening and conditioning of his lower back and increased Bales's Kadian
dosage. AR511.

Dr. Frederick Entwistle, a non-examining state agency physician, completed a physical

residual functional capacity (RFC) assessment form on Bales on November 16,2009. AR 44552.

Dr. Entwistle found that Bales could lift twenty pounds occasionally and ten pounds

frequently and could stand and/or walk with normal breaks for about six hours or sit for
approximately six hours in an eight-hour workday. AR 446. Although Dr. Entwistle found that

Bales could frequently climb stairs and balance, he determined that Bales could only occasionally
stoop, kneel, crouch, and crawl. AR 447. In support of his conclusions, Dr. Entwistle cited,
16

among other things, Dr. Seljeskog's finding in July 2007 that Bales had five out of five muscle

strength in his lower extremities and was already lifting fifteen to twenty pounds, Dr. Pesce's
notes from a February 2008 appointment that Bales seemed "to be doing well[,]" Dr. Blow's

conclusion that the FCE revealed that Bales could work in a light duty capacity, Dr. Westbrook's
recommendation in June 2008 that Bales exercise to strengthen and condition his lower back,

and Bales's statement in his function report that he could complete his personal care, prepare his
own meals, drive a car, and shop. AR 446-47.

In early 2010, Bales's friends and family submitted third-party reports to the Social

Security Administration. Bales's mother Sandra Bales stated in her report that Bales was in
constant pain, had memory problems, and spent three to four days a week in bed. AR 241. Todd

Peters, who identified himself as Bales's friend and roommate, submitted a third-party report
stating that Bales was no longer able to sit or stand for extended periods and that Bales lacked
the desire to complete simple tasks such as eating, getting out of bed, and maintaining personal
hygiene. AR 239. Peters wrote that he had been helping Bales with daily activities like keeping
up with appointments and personal business. AR 239. Peters also submitted a third-party

function report in which he stated that Bales had trouble with sleep and concentration, had
numerous physical limitations, and needed help cleaning his room and doing laundry. AR 25358, 260. Finally, Michael Koch, Bales's employer at the boat dealership, wrote a letter stating

that when Bales returned to work after injuring his back he was dependent on medication and

had to be let go in January 2008 because he was unable to fulfill the physical and mental
requirements of the job. AR 286.

17

On January 7, 2010, Dr. Westbrook sent a letter to Bales's disability insurance case
manager stating that Bales was "not able to be gainfully employed and perform activities in a

competitive work situation[.]" AR 397. Dr. Westbrook explained that this meant that Bales was

"limited in his ability to perform activities 40 hours a week, 50 weeks a year." AR 397. She
concluded that "[a]t the present time, the patient is totally disabled from any and all
occupations];.]"

AR 397.

In a February 2010 letter, Ostrander stated that, based on Dr.

Westbrook's opinion, he believed his previous conclusion that Bales was unable to be employed
on a regular consistent basis remained correct. AR 284.

When Bales saw Dr. Westbrook on February 11, 2010, he reported back pain that
radiated down both legs. AR 467. An MRI performed that day was consistent with advanced
lumbar degenerative disk disease, fibrofatty end plate changes at L4-L5 and L5-S1, and left
posterolateral disk protrusion at L4-L5 with marked narrowing of the left lateral recess and
possible abutment of the L5 nerve root. AR 467. The MRI did not show any subluxation or
fracture, and was negative for central canal stenosis. AR 467. Dr. Westbrook did not find any
significant changes from Bales's previous MRI. AR 467. Dr. Westbrook noted that Bales was

using Kadian and a sleep medication at bedtime for pain control and that in combination, these
medications were working well. AR 467. She recommended that Bales exercise regularly for
strengthening and conditioning and continue taking his medications. AR 467.

At a medication check with Dr. Pesce on February 16, 2010, Bales reported feeling
extremely depressed, having trouble sleeping, and not getting much relief from treatment with

Dr. Westbrook. AR 457. He also explained that his claim for Social Security Disability
Insurance had been denied and asked for Dr. Pesce's support. AR 457. Dr. Pesce stated: "I have

18

known this patient for quite a few years, and he has always been very functional. So I am pretty
sure that he is not malingering and that he is experiencing severe disability." AR 457.

BalessawDr. Westbrook again on March 11,2010. AR468. Dr. Westbrook wrote that
despite undergoing therapy and surgery, Bales still had "lower back pain radiating down the leg
and this has prevented [Bales] from being gainfully employed." AR 468. She noted, however,
that Bales exercised regularly for strengthening and conditioning. AR 468. Bales saw Dr. Pesce

for a medication recheck later that month. AR 481. Dr. Pesce remarked in his notes that Bales
seemed more relaxed and like he was "handling things well." AR 481.

Dr. Jerry Buchkoski, a non-examining state agency physician, reviewed Bales's medical
records on March 27, 2010. AR 461. Dr. Buchkoski opined that the "main issue impacting
[Bales's] functioning is his physical pain. Depression is secondary to pain and is exacerbated
when the pain is worse." AR 461. He further noted that "all psychiatric notes indicated that
[Bales] was doing well, except for the most recent one when the issue of disability and denial

ofbenefits was specifically addressed. It appears that this note may have been written to address
[Bales's] concerns and may not completely reflect [Bales's] emotional functioning." AR 461.
Because Bales's pain caused his functional limitations, Dr. Buchkoski agreed with Dr. Soule's
conclusion that Bales's psychiatric concerns were not severe. AR 461.

Dr. Kevin Whittle, a non-examining state agency physician, reviewed Bales's medical

records on April 3,2010. AR465. Dr. Whittle noted Bales's FCE and that after his most recent
surgery, Bales showed no neurologic deficits and had five out of five muscle strength in his

lower extremities. AR 465. Dr. Whittle concluded that a light RFC with some postural

19

limitations was appropriate for a patient with chronic back pain and was consistent with the
objective findings. Accordingly, he affirmed Dr. Entwistle's assessment. AR 465.

Bales continued to see Dr. Westbrook and Dr. Pesce in 2010 and 2011. AR 469, 475,

477, 479, 497, 498, 499, 500, 502, 503, 504, 507, 508. As at earlier appointments, Bales
reported low back pain that radiated to his legs, and Dr. Westbrook recommended that Bales
exercise regularly for strengthening and conditioning and continue taking Kadian. AR 469,498,
500,501,502,503,507. In her notes from a May 2010 appointment with Bales, Dr. Westbrook
wrote that Kadian allowed Bales "to attend to his activities of daily living as long as he paces his
activities."

AR 504.

During his appointments with Dr. Pesce, Bales described financial

difficulties and trouble paying for his medications. AR 477, 479. At his last visit to Dr. Pesce
in March 2011, Bales reported that he had decreased his Effexor and that things were "much
better" since he began a new relationship. AR 475. Bales also described being able to manage
his pain "much better[,]" and Dr. Pesce noted that Bales was walking better and not limping. AR
475. Dr. Pesce wrote that "it seems that things have improved dramatically and it is mostly

changes in [Bales's] emotional condition since he started this new relationship." AR 475.
Bales transferred his care to Falls Community Health in Sioux Falls, South Dakota after

he relocated. AR 515. Bales's first appointment was in December 2011 when he saw Dr. Jon
Engbers. AR 515. Bales reported that he had stopped taking all medications in March 2011

because he could no longer afford them. AR 515. He stated that he was currently limited to
doing some work around the house and that while he occasionally tried to get groceries or run
errands, doing so caused him a lot of pain. AR 515. On examination, Bales exhibited limited

flexion and extension ofthe lumbar spine, tenderness over L4-L5, and apositive bilateral straight
20

leg raise with pain symptoms reproduced at forty-five degrees. AR 516. Bales also showed an
abnormal walk with slow speed, although he was able to toe-and-heel walk and squat with the
support of a hand. AR 516. Dr. Engbers did not detect any symptoms of anxiety or depression.

AR 515. Bales saw Dr. Engbers again in April 2012, when he reported back pain severe enough
to prevent him from leaving his house on at least four days of each week. AR 513. Bales also
described doing light house work as tolerated and having leg cramps. AR 513.

Bales's hearing before the ALJ occurred on October 19, 2011. AR 37. Present at the

hearing were Bales, his attorney Thomas Johnson, and his fiancee Carol Vanmervin
(Vanmervin). AR 39. Vocational expert Dr. William Tucker appeared by telephone. AR 39.
Bales testified that he had returned to work almost full time after his second back surgery

but that he had relied heavily on hydrocodone to do so. AR 53. He described having memory
problems at the boat dealership and testified that he created more work for his employer by
misplacing things and putting titles in the wrong files. AR 56. When he could no longer tolerate
the pain, Bales returned to Dr. Seljeskog in May 2007 for a third back surgery. AR 53. Bales
testified that Dr. Seljeskog told him after his third surgery that pain management was his only
option. AR 54.

When asked to describe his typical day, Bales testified that he "may" water plants, cut the
grass for a "little while" using a riding lawnmower, change light bulbs, and dust. AR 57. He

stated that if he performed any activity for longer than forty minutes, he experienced pain so
severe that he could hardly do anything for the next three days. AR 57. Bales estimated that he

could sit for approximately one hour and stand for about forty minutes. AR 57-58. He said that

his pain made it difficult to maintain any position, whether sitting, standing, or laying down, for
21

an extended period. AR 55. Although Bales had been taking morphine, he testified that he was
only taking ibuprofen now because he could no longer afford pain management or the $750 a
month his medications cost. AR 56.

Vanmervin, who lived with Bales, testified that Bales cooked, washed dishes, and did
some yard work but that he was "miserable" if he pushed himself too far. AR 58-60. She

explained that Bales occasionally had trouble rising from a prone position and that there were
times when he spent the entire day in bed. AR 59.

The ALJ also heard testimony from Dr. Tucker, the vocational expert. AR 61. Dr.
Tucker had completed a past relevant work summary in which he classified Bales's job as a sales
representative as "light" and "skilled." AR 281. The ALJ asked Dr. Tucker to assume a person

who could work at a light level; could pick up twenty pounds occasionally and ten pounds or less

frequently; could sit six hours in an eight-hour work day; could stand and walk combined with
normal breaks for six hours in an eight-hour work day; had no limits reaching and no postural
manipulation limits; had no visual limits with glasses and no communications limits; and who

had to avoid concentrated exposure to hazards such as unprotected heights and fast or dangerous
machines. AR 62. The ALJ asked Dr. Tucker to further assume that the hypothetical person was
"afflicted with pain and discomfort from a variety of sources that would produce mild to

moderate chronic pain and discomfort likely noticeable at all times, however, with appropriate
medication, [the person] could be active within these physical limits." AR 62.
Dr. Tucker testified that such a person would be able to return to Bales's past work as a

sales representative, which was "light" work both as Bales performed it and as it was performed

in the national economy. AR 62. The ALJ then altered the hypothetical, asking Dr. Tucker to
22

assume that the person's pain and medication placed moderate limitations on his concentration,

persistence, and pace, in particular his ability to carry out details, maintain extended
concentration, and adapt to changes in a work routine or setting. AR 63. The ALJ defined

"moderate" as "noticeably affected, but not precluded[.]" AR 63. Dr. Tucker testified that
although such a person could not perform Bales's past jobs and would be unable to work at the
skilled or semi-skilled level, the person could perform the unskilled work of an inspector and
hand packager, and mail clerk. AR 63-64.

III.

The Disability Determination and the Five-Step Procedure

At the outset of his decision, the ALJ found that Bales met the insured status
requirements of the Social Security Act through March 31, 2013. AR 17, 19. To receive

disability insurance benefits, a claimant must establish that he was insured under the Social
Security Act when he was disabled. Hinchevv. Shalala. 29 F.3d 428,431 (8th Cir. 1994). Thus,
Bales needed to show that he was disabled on or before March 31, 2013. Id

The ALJ applied the five-step sequential evaluation process mandated under 20 C.F.R.
§ 404.1520(a)(4) to determine whether Bales was disabled. Under this five-step analysis, an ALJ
is required to examine:

(1) whether the claimant is presently engaged in a "substantial
gainful activity;"

(2) whether the claimant has a severe impairment-one that
significantly limits the claimant's physical or mental ability to
perform basic work activities;

(3) whether the claimant has an impairment that meets or equals
. a presumptively disabling impairment listed in the regulations (if
so, the claimant is disabled without regard to age, education, and
work experience);

(4) whether the claimant has the residual functional capacity to

perform his or her past relevant work; and

23

(5) ifthe claimant cannot perform the past work, the burden shifts
to the Commissioner to prove that there are other jobs in the
national economy that the claimant can perform.

Baker v.Apfel, 159 F.3d 1140,1143-44 (8th Cir. 1998) (footnote omitted). Ifthe ALJ can make
a conclusive disability determination before step five, the applicable regulation requires the ALJ
to make that determination and not proceed to the next step. 20 C.F.R. § 404.1520(a)(4). If the
ALJ cannot make such a determination before step five, the ALJ must evaluate each step. Id
Between steps three and four, the ALJ assesses the claimant's RFC. Id

At step one, the ALJ determined that Bales had not engaged in substantial gainful activity
since January 20, 2008, his alleged onset date. AR 19. At step two, the ALJ found that Bales
had the following severe impairments: degenerative disc disease ofthe lumbar spine, status post
multiple surgeries, and major depressive disorder. AR 19. The ALJ concluded at step three that
Bales's impairments, either individually or in combination, did not meet or medically equal one
of the listed impairments. AR 19-22.

After reviewing the evidence, the ALJ then calculated Bales's RFC, determining that
Bales could perform light work with certain limitations. AR 22-28. In so concluding, the ALJ
stated that he gave great weight to Bales's FCE, AR 25, great weight to Dr. Entwistle's
assessment, AR 27, and little weight to Dr. Westbrook's opinion that Bales was incapable of

working, AR 26. The ALJ then proceeded to step four, finding that Bales could not perform his
past relevant work as a retail store manager or sales representative because the mental demand
of these positions exceeded Bales's RFC. AR 29. At step five, however, the ALJ found that

Bales could perform other jobs that exist in significant numbers in the national economy,

24

including an inspector and hand packager and a mail clerk. AR 30. The ALJ therefore found
that Bales was not disabled under the Social Security Act. AR 30.
IV.

Standard of Review

When considering an ALJ's denial of Social Security benefits, a district court must
determine whether the ALJ's decision "complies with the relevant legal requirements and is
supported by substantial evidence in the record as a whole." Pate-Fires v. Astrue. 564 F.3d 935,
942 (8th Cir. 2009) (quoting Ford v. Astrue. 518 F.3d 979, 981 (8th Cir. 2008)). "Substantial
evidence on the record as a whole" entails "a more scrutinizing analysis" than "substantial
evidence [,]" which is "merely such relevant evidence that a reasonable mind might accept as

adequate to support a conclusion." Burress v. Apfel. 141 F.3d 875,878 (8th Cir. 1998) (citations
and internal marks omitted) (noting that it is not sufficient for the district court to simply say
there exists substantial evidence supporting the Commissioner).

"The findings of the

Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be
conclusive

" 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 Commissioner's
conclusion.'" Pate-Fires. 564 F.3d at 942 (quoting Maresh v. Barnhart. 438 F.3d 897, 898 (8th

Cir. 2006)). "Substantial evidence means more than a mere scintilla." Slusser v. Astrue. 557
F.3d 923, 925 (8th Cir. 2009) (citing Neal v. Barnhart. 405 F.3d 685, 688 (8th Cir. 2005)). A

district court "must consider both evidence that supports and evidence that detracts from the
Commissioner's decision." Pate-Fires. 564 F.3d at 942 (quoting Nicola v. Astrue. 480 F.3d 885,

886 (8th Cir. 2007)). Additionally, "[a]s long as substantial evidence in the record supports the

Commissioner's decision, [the court] may not reverse it because substantial evidence exists in

25

the record that would have supported a contrary outcome, or because [the court] would have
decided the case differently." McKinnev v. Apfei. 228 F.3d 860, 863 (8th Cir. 2000) (internal
citation omitted).

A district court also reviews the Commissioner's decision to determine if appropriate
legal standards were applied. See Roberson v. Astnift 481 F.3d 1020,1022 (8th Cir. 2007). The
district court reviews de novo the ALJ's ruling for any legal errors. Collins v. Astrue. 648 F.3d
869, 871 (8th Cir. 2011); Brueggemann v. Barnhart 348 F.3d 689, 692 (8th Cir. 2003).
When Bales sought review by the Appeals Council, he submitted new evidence. AR1 -6,
505-60. The Appeals Council stated that it "considered the reasons you disagree with the
decision and the additional evidence listed on the enclosed Order ofAppeals Council[,]" but that
it "found that this information does not provide a basis for changing the [ALJ's] decision." AR
1-2. The Order ofAppeals Council listed and made several exhibits part ofthe record, including
additional medical records, the FCE, and reports and correspondence from Ostrander. AR 5.

When, as here, the Appeals Council considers new evidence but denies review, a district court
"must determine whether the ALJ's decision was supported by substantial evidence on the record
as a whole, including the new evidence." Davidson v. Astrue. 501 F.3d 987, 990 (8th Cir.

2007).I3 In effect, this requires that courts engage in the "peculiar task" of deciding "how the

13In Nelson v. Sullivan, 966 F.2d 363 (8th Cir. 1992), the Eighth Circuit explained the effect

of new evidence submitted to the Appeals Council:
If the Appeals Council does not consider the new evidence, a
reviewing court may remand the case to the Appeals Council if the
evidence is new and material. If, as here, the Appeals Council
considers the new evidence but declines to review the case, we review
the ALJ's decision and determine whether there is substantial evidence

in the administrative record, which now includes the new evidence,

to support the ALJ's decision.

26

ALJ would have weighed the new evidence had it existed at the initial hearing." Beremann v.
Apfel, 207 F.3d 1065,1068 (8th Cir. 2000) (citation omitted). "Critically, however, this court
may not reverse the decision of the ALJ merely because substantial evidence may allow for a
contrary decision." Id.
V.

Discussion

Bales argues that the ALJ's decision is not supported by substantial evidence on the
record as a whole and free of legal error. He raises two issues on appeal:

I. Whether the Commissioner's determination of [Bales's] residual
functional capacity is supported by substantial evidence on the
record as a whole?

II. Whether the Commissioner erred in evaluating the opinions of
[Bales's] treating pain specialist?
Doc. 12 at 1.

A.

Residual Functional Capacity

A claimant's RFC "is defined as the most a claimant can still do despite his or her
physical or mental limitations." Martise v. Astrue. 641 F.3d 909, 923 (8th Cir. 2011) (quoting
Leckenbv v. Astrue. 487 F.3d 626, 631, n.5 (8th Cir. 2007)). "Because a claimant's RFC is a
medical question, an ALJ's assessment of it must be supported by some medical evidence of the

Id at 366 (internal citations omitted). Several courts within the Eighth Circuit have found that
statements from the Appeals Council similar to the one given in this case establish that the Appeals
Council considered newly submitted evidence. See Strobbe v. Astrue. Civil No. 11-1086-CV-WNKL-SSA, 2012 WL 2921849, at *3 (W.D. Mo. July 17, 2012); Marshall v. Astrue. No. 11-5007,
2012 WL 527910, at *2, 9 (W.D. Ark. Feb. 16,2012); Tarwater v. Astrue. No. 4:10CV 1974 LMB,
2012 WL 381783, at *17 (E.D. Mo. Feb. 6, 2012); Hill v. Astrue. Civil No. 10-4170 (PJS/FLN),
2011 WL 5878356, at * 9-10 (D. Minn. Nov. 7,2011). Further, the Eighth Circuit appears to have
found similar statements by the Appeals Council sufficient to establish that the Appeals Council
considered newly submitted evidence. Perks v. Astrue. 687 F.3d 1086, 1093-94 (8th Cir. 2012).
Here, both Bales and the Commissioner agree that the Appeals Council considered the new evidence,
so this Court must consider the new evidence as well. Doc. 12 at 21, n.4; Doc. 18 at 6, n.l.
27

claimant's ability to function in the workplace." Cox v. Astrue. 495 F.3d 614, 619 (8th Cir.

2007). "The ALJ determines a claimant's RFC based on all relevant evidence, including medical
records, observations of treating physicians and others, and the claimant's own descriptions of
his or her limitations." Eichelberger y. Barnhart. 390 F.3d 584, 591 (8th Cir. 2004).

The ALJ determined that Bales had the RFC to perform light work as defined in 20

C.F.R. § 404.1567(b) within the following parameters: Bales could occasionally lift up to twenty
pounds and frequently lift ten pounds or less; could stand and/or walk with normal breaks or sit
with normal breaks for a total of six hours in an eight-hour workday; had to avoid concentrated
exposure to hazards such as unprotected heights and fast or dangerous moving machinery; would

experience "pain and discomfort from a variety of sources that would produce mild to moderate

chronic pain and discomfort likely noticeable at all times, but with appropriate medication
[Bales] could be active within the physical limits described hereinf;]" would have moderate
mental limitations—meaning noticeably affected but not precluded—in the ability to maintain
concentration, persistence, or pace, "[i]n particular, [Bales] would be moderately limited in the

ability to carry out details, maintain extended concentration, and adapt to changes in a work
routine or work setting." AR22.

Bales argues first that the ALJ's reliance on the FCE when determining his RFC was

mistaken because the FCE itself conflicts with the ALJ's determination that he can perform light

work. The Commissioner disagrees, contending that the ALJ gave great weight to Dr. Blow's
opinion rather than the FCE and that the opinions of Dr. Blow, Dr. Entwistle, and Dr. Whittle
support the RFC determination.

28

When the ALJ issued his opinion, neither the FCE nor the attached letter from PT

Johnson to Dr. Blow were part of the administrative record. AR 5. Nevertheless, and contrary
to the Commissioner's suggestion, the ALJ still relied on the FCE. Specifically, the ALJ stated:
At an appointment on January 15, 2008,... Dr. Blow noted that
the claimant had recently participated in a functional capacity
evaluation, and that this evaluation revealed the claimant could
work at light duty. Dr. Blow wrote that the claimant was found
to be able to lift 20 pounds occasionally, leg lift 25 pounds
infrequently, shoulder lift 15 pounds occasionally-to-infrequently,
walking push/pull 25 pounds occasionally, and standing push/pull
35-55 pounds occasionally. Also indicated was the ability to

constantly sit, frequently stand, frequently walk, occasionally
overhead reach. Dr. Blow released the claimant to work within

the guidelines of this assessment. The results of this evaluation

were given great weight by the undersigned. The conclusions
contained therein were adopted by Dr. Blow, who has a lengthy
treating relationship with the claimant. Additionally, the results
of this evaluation are generally consistent with the record as a
whole, including Dr. Blow's observations at both this appointment
and future appointments.
AR 25 (internal citations omitted).

In her letter to Dr. Blow, PT Johnson stated that the FCE indicated that Bales was "able
to work at the LIGHT Physical Demand Level for an 8-hour day according to the Dictionary of
Occupational Titles. U.S. Department of Labor, 1991."

AR 519.

Dr. Blow relied on PT

Johnson's letter in his notes in concluding that the FCE revealed that Bales was "able to work in

a light duty capacity" without defining the term "light duty."

AR 328.

Despite these

characterizations of the FCE by PT Johnson and Dr. Blow, the actual results of the FCE cast
doubt on whether Bales is able to perform "light work" as defined in either the Dictionary of
Occupational Titles (DOT) or 20 C.F.R. § 404.1567(b). "Light work" and the other terms for
exertional levels as used in the Social Security Regulations have the same meaning as in the
29

DOT. See 20 C.F.R. § 404.1567. The Social Security Regulations state in relevant part that light
work "involves lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds." Id § 404.1567(b). Similarly, the DOT defines light work
as "[e]xerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently,

and/or a negligible amount of force constantly (Constantly: activity or condition exists 2/3 or
more of the time) to move objects." Dictionary of Occupational Titles app. C (4th ed. 1991),
available at 1991 WL 688702. Here, the FCE report form, if it was completed accurately,
indicated that Bales could not lift, carry, or push or pull any weight on a frequent basis. AR 521.
Thus, the FCE, to which the ALJ assigned great weight in determining Bales's RFC, indicates
that Bales does not have the ability to perform light work as defined in § 404.1567(b). In short,
either the FCE form was not completed accurately or PT Johnson's conclusion and report to Dr.

Blow that Bales could perform light work is not consistent with that term's definition under the
Social Security Regulations. There is no evidence in the record for this Court to presume that
the FCE report was completed inaccurately as this incongruity was not capable of being known
and explored by the ALJ, who did not have the FCE available to him.

The Commissioner contends that the opinions of Dr. Blow, Dr. Entwistle, and Dr.
Whittle still support the RFC determination. But Dr. Blow relied on the FCE and released Bales
to work "under the guidelines" of the FCE, AR 330; his opinion therefore does not support the
ALJ's determination that Bales could frequently lift ten pounds or less. Both Dr. Entwistle and
Dr. Whittle relied in part on Dr. Blow's statement that the FCE indicated that Bales could "work

in a light duty capacity[,]"AR 328, when determining Bales's RFC. When the RFC form asked
Dr. Entwistle to list the facts that supported his determinations concerning Bales's exertional

30

limits, Dr. Entwistle stated, among other things, that Bales "was evaluated by Dr[.] Blow, a

rehabilitation physician on 6-24-08. In that report Dr[.] Blow refers to a 'recently done FCE'
which 'revealed that patient is able to work in a light duty capacity.'" AR 447. One of the two
pieces ofevidence that Dr. Whittle relied on when explaining why he agreed with Dr. Entwistle's
RFC determination was that an FCE "in the past indicates capacity for light work." AR 465.

The reports ofDr. Entwistle and Dr. Whittle suggest that neither saw the FCE report, but instead
relied on the characterization of it by Dr. Blow. It is impossible to know whether Dr. Entwistle
and Dr. Whittle would have reached the same conclusions had they known that the FCE on
which they relied actually undermined their determinations that Bales could perform light work
as defined in § 404.1567(b). Further, it is unclear whether Dr. Entwistle and Dr. Whittle
erroneously assumed that Dr. Blow's statement that the FCE indicated that Bales could work in

a "light duty capacity" meant that Bales could perform light work as defined in § 404.1567(b).
At bottom, the results ofthe FCE not only undermine the ALJ's determination that Bales

could perform light work as defined in § 404.1567(b), but also call into question the opinions
of Dr. Entwistle and Dr. Whittle, to which the ALJ assigned great weight.

Given these

circumstances, this Court cannot conclude that the ALJ's RFC determination is supported by
substantial evidence. If the ALJ could have considered the FCE at the time of his decision, he

likely would not have found Bales to have the RFC to perform light work without first seeking
additional evidence concerning Bales's RFC or at the very least clarifying whether the FCE report
was accurate and whether Dr. Entwistle and Dr. Whittle understood that Dr. Blow's reference to

"light duty capacity" did not have the same meaning as the definition of "light work" in
§ 404.1567(b).

See Bergmann, 207 F.3d at 1068 (explaining that when Appeals Council
31

considers new evidence, district courts must decide how the ALJ would have weighed new
evidence had it been before the ALJ at initial hearing). A remand to the ALJ with instructions
to consider the FCE and to further develop the evidence concerning Bales's RFC—which could

be done by re-contacting medical sources and by ordering additional consultive examinations—is
the appropriate course of action in this case.M

Bales argues next that the ALJ's RFC determination failed to incorporate some of the
postural limitations identified in Dr. Entwistle's assessment and the FCE.

Dr. Entwistle

concluded that Bales could only occasionally stoop, kneel, crouch, and crawl.

AR 447.

Similarly, the FCE indicated that Bales could bend and crawl infrequently and could squat and

kneel occasionally.15 AR 521. Despite giving Dr. Entwistle's assessment and the FCE great
weight, the ALJ did not include any postural limitations in the RFC determination. Although

the Commissioner argues that the ALJ's failure to include postural limitations in the RFC
determination was harmless, it is unnecessary to reach this issue. Because the ALJ will be
recalculating Bales's RFC on remand, he will have the opportunity to incorporate any appropriate
postural limitations.

I4It is somewhat rare for an FCE performed by a physical therapist to be central to

determining a claimant's RFC. See Sloan v. Astrue. 499 F.3d 883, 888 (8th Cir. 2007) (discussing
"other medical sources," such as physical therapists, and the weight given to their opinions). Here,
however, Dr. Blow appeared to adopt the FCE when he released Bales to work within its guidelines
and incorporated his apparent misinterpretation of the FCE in his records which in turn other
physicians relied upon for their opinions. Under these circumstances, the FCE performed by a

physical therapist has enhanced importance.

15Unlike with the FCE's indication that Bales could not lift or carry any weight frequently,

Dr. Blow accurately noted the FCE's findings concerning Bales's postural limitations in his notes.'
AR 328. Thus, the ALJ was aware of these postural limitations at the time he issued his decision.

32

Bales argues also that the ALJ's determination of the mental portion of his RFC lacked

medical support and was inadequately explained. See Nevland v. Apfel. 204 F.3d 853,858 (8th
Cir. 2000) (explaining that claimant's RFC must be supported by some medical evidence and that

the ALJ may not draw upon his own inferences from medical reports). In the PRT form he
completed, Dr. Soule determined that Bales's depression was not severe and that Bales had mild

limitations in his activities of daily living, social functioning, and in maintaining concentration,
persistence or pace. AR 431-43. Although the ALJ assigned great weight to Dr. Soule's PRT,
he did not adopt all of those findings. Rather, the ALJ determined that Bales's depression was
severe, AR 19, and that Bales would have moderate mental limitations in maintaining
concentration, persistence, or pace, AR 22. "In particular," the ALJ stated, Bales "would be

moderately limited in the ability to carry out details, maintain extended concentration, and adapt
to changes in a work routine or work setting." AR 22. Other than stating that he found Bales
"somewhat more limited" than did Dr. Soule, the ALJ did not explain his rationale for
disagreeing with the PRT. AR 28. Nor did the ALJ specifically explain how he determined the
severity of Bales's mental limitations. Although the ALJ noted in his review of the medical

evidence that Dr. Pesce gave Bales a GAF score that was indicative of moderate symptoms and
limitations, it is unclear whether the ALJ relied on the GAF score when determining that Bales
had certain moderate mental limitations. AR 27-28. Because the ALJ will be reconsidering his

formulation of the RFC on remand, he will have the opportunity to explain more fully his basis
for the mental portion of the RFC, address any inconsistencies between it and the PRT, and to
seek additional evidence if necessary.

33

Bales next attacks the ALJ's determination that "with appropriate medication[,]" Bales
could be active within the physical limits described in the RFC. Bales contends that the ALJ
made this finding without citing any medical opinion that such medications would not

themselves interfere with his ability to work. Of course, an ALJ is neither required to rely
entirely on a doctor's opinion nor limited to a mere choice between the medical opinions of

record when formulating a claimant's RFC. See Chapo v. Astrue. 682F.3d 1285,1288 (10th Cir.
2012) (" [Tjhere is no requirement in the regulations for a direct correspondence between an RFC

finding and a specific medical opinion on the functional capacity in question."); Martise. 641
F.3d at 927 ("[T]he ALJ is not required to rely entirely on a particular physician's opinion or
choose between the opinions of any of the claimant's physicians.") (internal marks and citation
omitted). A claimant's RFC is "ultimately an administrative determination reserved to the
Commissioner[,]" Perks v. Astrue. 687 F.3d 1086,1092 (8th Cir. 2012) (quoting Cox, 495 F.3d
at 619-20), and should be based on "all relevant evidence, including medical records[,]" Tellez
v. Barnhart. 403 F.3d 953, 957 (8th Cir. 2005) (quoting Pearsall v. Massanari. 274 F.3d 1211,
1217 (8th Cir. 2001)).

Here, the medical records indicate that Bales's medications did not

preclude him from working. True, Bales's employer said he was unable to fulfill the mental

requirements of the job, AR 286, and Dr. Westbrook agreed with Ostrander's statement that
Bales's pain and the side effects from his medication made him unproductive at the boat
dealership, AR 506. But Bales's medical records reflect that he frequently told Dr. Westbrook

that he had no side effects from his medications other than constipation. AR 400,404,468,486,
497, 499, 500, 501, 502, 507. The ALJ's explanation of the hypothetical to Dr. Tucker—in
which he asked Dr. Tucker to assume that the person's pain and medication placed moderate

34

limits on the person's concentration, persistence, and pace—shows that the ALJ took any side
effects Bales might have into consideration when formulating the RFC. AR 63. Accordingly,
the ALJ's determination that Bales's medications were not an impediment to his RFC is
supported by substantial evidence.

Finally, Bales argues that he cannot afford the "appropriate medication" that the ALJ

found Bales needed to function within the limits of the RFC. Bales cites Tome v. Schweiker.
724 F.2d 711 (8th Cir. 1984), and contends that the ALJ may not formulate an RFC that depends
on a treatment he cannot afford. Tome concerned a Social Security Regulation that barred
recovery if a claimant failed to treat a remediable condition without good reason. Id at 713. The
Eighth Circuit determined that "a lack of sufficient financial resources to follow prescribed
treatment to remedy a disabling impairment may be ... an independent basis for finding

justifiable cause for noncompliance." Id. at 714. The Eighth Circuit also has taken a claimant's
financial resources into account when considering whether an ALJ may discount a claimant's
subjective complaints of pain because the claimant failed to seek medical treatment. See Harris

v. Barnhart. 356 F.3d 926, 930 (8th Cir. 2004); Brown v. Sullivan. 902 F.2d 1292,1294-95 (8th
Cir. 1990); Hutsell v. Sullivan. 892 F.2d 747, 750, n.2 (8th Cir. 1989); Benskin v. Bowen. 830

F.2d 878,884 (8th Cir. 1987). The Eighth Circuit has made clear, however, that a claimant must
offer supporting evidence that his failure to seek treatment or follow a prescribed plan was due
to the expense. See Harris. 356 F.3d at 930 ("But in evaluating the credibility of [the claimant's]
subjective complaints, it was permissible for the ALJ to consider the lack of evidence that [the

claimant] had sought out stronger pain treatment available to indigents."); Osborne v. Barnhart.
316 F.3d 809, 812 (8th Cir. 2003) (holding that ALJ properly relied on claimant's failure to seek

35

ii

I

treatment given lack of evidence that she attempted to obtain treatment and was denied because
of insufficient funds or insurance); Riggins v. Apfel. 177 F.3d 689, 693 (8th Cir. 1999)

(concluding that ALJ appropriately discounted claimant's allegation he could not afford medical
care absent evidence he sought and was denied low-cost or free care); Murphy v. Sullivan. 953
F.2d 3 83,3 86-87 (8th Cir. 1992) (rejecting financial hardship claim where there was no evidence

that claimant sought to obtain low-cost medical treatment or that she had been denied medical
care because of her poverty).

Applying these principles to the present case, Bales has offered some evidence of
financial hardship. Although it appears that Bales had no trouble affording his treatment from
January 2008 to the middle of 2010, he reported to his doctors on several occasions in late 2010
and early 2011 that he was experiencing financial difficulties and having trouble paying for his
medications. AR 477, 479, 507, 515. He told Dr. Engbers that he stopped taking his pain
medications in March 2011 because he could no longer afford them. AR 515. Bales has not
cited to any evidence that he pursued low-cost medication programs or that he was denied
medications because he was indigent, however. Further, it appears from his appointments with

Dr. Engbers that Bales was smoking in 2011 and 2012, AR 513, 515, which generally militates
against a finding that a claimant cannot afford treatment.

See Riggins, 177 F.3d at 693

(claimant's continuing to smoke three packs of cigarettes a day inconsistent with claim that he
could not afford pain medication); Fox v. Colvin. Civil No. 12-2234, 2014 WL 24149, at *5
(W.D. Ark. Jan. 2, 2014) (finding that claimant's ability to purchase cigarettes undercut claim
of inability to afford treatment). In fairness, Bales testified at the hearing that his medications

cost him $750 a month, AR 56, although he at one point told Dr. Pesce that his medications cost

36

him a $100 a month, AR 477, which seems more realistic. Depending on how much Bales
smokes, which is unclear from the record, stopping smoking might not make much of a

difference in his ability to pay for medication. Under all of the circumstances, nevertheless,

Bales has failed to show that the ALJ incorporated a treatment that he cannot afford into the

RFC.16
B.

Dr. Westbrook's Opinion

Bales contends that the ALJ's decision to give Dr. Westbrook's opinion little weight was
not in accordance with legal standards and was unsupported by substantial evidence. "A treating
physician's opinion is generally given controlling weight if it is 'well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other

substantial evidence' in the record."

Teaeue v. Astrue. 638 F.3d 611, 615 (8th Cir. 2011)

(quoting 20 C.F.R. § 404.1527(d)(2)).

However, a treating physician's opinion "does not

automatically control, since the record must be evaluated as a whole." Prosch v. Apfel. 201 F.3d
1010,1013 (8th Cir. 2000) (citation and internal marks omitted). "An ALJ may discount or even
disregard the opinion of a treating physician where other medical assessments are supported by

16The claimant has the burden of persuasion to prove disability and demonstrate his RFC.
Perks, 687 F.3d at 1092. Once an ALJ finds that a claimant cannot perform his past relevant work,
however, the burden of production shifts to the Commissioner to prove that there are other jobs in

the national economy that the claimant can perform. The Eighth Circuit has stated that "while the
burden ofproduction at step five shifts to the Commissioner, the ultimate burden of persuasion rests
with the claimant. As such, the Commissioner does not have to reestablish [the claimant's]
RFC—what [the claimant] proved at step four continues as [the claimant's] RFC at step five.
However, the burden of production shifts to the Commissioner at step five to submit evidence of
other work in the national economy that [the claimant] could perform, given [the claimant's] RFC."
Charles v. Barnhart. 375 F.3d 777, 782, n.5 (8th Cir. 2004) (internal citation omitted). Thus, Bales
would have the burden to establish that he cannot afford certain medications and thus that his RFC
should be determined without consideration of his improved functioning on medications that are
unaffordable.
37

better or more thorough medical evidence, or where a treating physician renders inconsistent
opinions that undermine the credibility of such opinions." Perkins v. Astrue, 648 F.3d 892,89798 (8th Cir. 2011) (citation omitted). "Whether the ALJ grants a treating physician's opinion

substantial or little weight, the regulations provide that the ALJ must 'always give good reasons'
for the particular weight given to a treating physician's evaluation." Prosch, 201 F.3d at 1013
(quoting 20 C.F.R. § 404.1527(d)(2)). When the ALJ does not give the treating physician's
opinion controlling weight, the opinion is weighed considering the factors set forth in 20 C.F.R.
§ 404.1527(c)(2). See Shontos v. Barnhart. 328 F.3d 418,426 (8th Cir. 2003). The factors under
20 C.F.R. § 404.1527(c)(2) include: 1) the examining relationship; 2) the treatment relationship,
including length of treatment, frequency of examination, and the nature and extent of the
treatment relationship; 3) supportability; 4) consistency; 5) specialization; and 6) any other
factors brought to the ALJ's attention tending to support or contradict the opinion.

The ALJ acknowledged Dr. Westbrook's treating relationship with Bales and her July
2009 statement that Bales was '"unable to work due to his low back pain'" but gave this statement
little weight because it was "not consistent with the findings of [Bales's] other treating providers"
and because it was "inconsistent with Dr. Westbrook's notation during the same appointment that
[Bales] was 'able to attend to his activities of daily living with minimal interference due to pain.'"
AR 26. The ALJ also acknowledged Dr. Westbrook's January 2010 letter stating that Bales was

'"not able to be gainfully employed and perform activities in a competitive work situation'" and
that Bales was '"totally disabled from any and all occupations.'" AR 26. Once again, the ALJ
gave Dr. Westbrook's opinion little weight, this time stating "[s]uch a blanket disqualification

from all vocations is not only inconsistent with the objective findings contained within the

38

record, but also with [Bales's] function capacity evaluation, which indicated an ability to perform
light duty work."

AR 26.

The ALJ further noted that Dr. Westbrook's opinion was "quite

conclusory, providing very little explanation of the evidence relied on in forming that opinion,
nor what specific limitations would preclude employment. It is also noted that this opinion [is]
on an issue reserved to the Commissioner of Social Security (20 CFR 404.1527(e); SSR 96-2p)."
AR26.

When discussing the medical evidence, the ALJ recounted several of Bales's

appointments with Dr. Seljeskog, Dr. Blow, and Dr. Pesce.

AR 24-27.

In June 2007, Dr.

Seljeskog released Bales to "light duty work[,]" noting that he moved about "quite readily" and
appeared to "be quite comfortable." AR 24, 305. When Bales visited Dr. Seljeskog's clinic in
July 2007, it was noted that Bales was already lifting fifteen to twenty pounds and Bales was told
that he could increase this as tolerated. AR 25, 304. Bales was also told that he could continue

working one to two hours a day and could increase this as tolerated as well. AR 25,304. When

Bales saw Dr. Blow in November 2007, his gait was "guarded" but otherwise normal, he could
walk on his heels and toes "with ease[,]" and he had a negative straight leg raise. AR 25, 336.

Dr. Blow's notes from a June 2008 appointment with Bales state that Bales's straight leg raise
that day was "excellent" and that Bales "held his leg extended for a considerable length of time
which was surprising for someone with his degree of low back pain." AR 26, 327. Dr. Blow
further noted that Bales demonstrated no pain behavior while doing his exercises that day, that

he moved about the room very easily, and that his lumbar flexion was 35 degrees, his extension
was better, and his side bending and rotation were good. AR 26, 327. When Bales saw Dr.
Pesce in March 2011, Dr. Pesce noted that Bales was able to walk "better[,]" without limping and

39

with a straight back.

AR 27, 475.

As noted above, the ALJ also considered Dr. Blow's

characterization of the FCE, Dr. Blow's decision to release Bales to work within his
understanding ofthe FCE's guidelines for light work, and Dr. Blow's opinion that an FCE finding

of the ability to do light work was still valid despite Dr. Westbrook's concerns and could be used
for vocational planning. AR 25-26,326-330. As discussed above, Bales is correct that the FCE
as the form was completed did not support the determination that Bales could do "light work"
as defined in 20 C.F.R. § 404.1567(b), but the FCE as completed nevertheless was inconsistent
with Dr. Westbrook's opinion that Bales was "totally disabled from any and all occupations [.]"
AR 397. Contrary to Bales's assertions, the ALJ's decision to give Dr. Westbrook's opinion little
weight because it was conclusory and invaded the province of the Commissioner was proper.

As noted above, Dr. Westbrook opined that Bales was "unable to work due to his low back
pain[,]" AR 398, that he was "not able to be gainfully employed[,]" and that he was "totally
disabled from any and all occupations[,]" AR 397. The determination of disability is reserved
to the Commissioner and Dr. Westbrook's opinions were not the sort to which the ALJ was

required to give controlling weight. See House v. Astrue. 500 F.3d 741,745 (8th Cir. 2007) ("A
treating physician's opinion that a claimant is disabled or cannot be gainfully employed gets no
deference because it invades the province of the Commissioner to make the ultimate disability

determination."); Ellis v. Barnhart. 392 F.3d 988,994 (8th Cir. 2005) ("Amedical source opinion

that an applicant is 'disabled' or 'unable to work,' however, involves an issue reserved for the
Commissioner and therefore is not the type of 'medical opinion' to which the Commissioner
gives controlling weight.").

Moreover, as the ALJ noted, Dr. Westbrook provided little

explanation of the medical evidence that supported her opinions and failed to identify any

40

particular limitations that would preclude Bales from working. AR 397, 398. As such, Dr.
Westbrook's conclusory opinions provided little insight into the nature and extent of Bales's
ability to function in the workplace and the ALJ was entitled to afford these opinions limited
weight. SeePieperasv.Chater. 76F.3d233,236 (8th Cir. 1996) ("A treating physician's opinion
deserves no greater respect than any other physician's opinion when the treating physician's
opinion consists of nothing more than vague, conclusory statements."); Chamberlain v. Shalala.
47 F.3d 1489,1494 (8th Cir. 1995) ("The weight given a treating physician's opinion is limited
if the opinion consists only of conclusory statements."); Rhodes v. Apfel. 40 F. Supp. 2d 1108,
1119 (E.D. Mo. 1999) ("When a physician does not set forth the specific nature of a claimant's
limitations and does not support his finding of disability with objective medical evidence, the
ALJ can accord whatever weight he deems warranted to the physician's statements.").
For the reasons set forth above, this Court finds that the inconsistencies between the
findings of other doctors who saw Bales and of Dr. Westbrook, the conclusory nature of her
opinions, and the fact that her opinions intruded on a decision reserved for the Commissioner
constitute substantial evidence on the record as a whole supporting the ALJ's decision to assign
little weight to Dr. Westbrook's opinions. How much weight to assign Dr. Westbrook's opinion

will be left for the ALJ to consider on remand.17 The ALJ will have an opportunity, based on
consideration of the FCE and how that impacts the RFC determination and case generally, to
revisit the issue of what weight to give the opinions of Dr. Westbrook.

17It is unnecessary to consider whether it was appropriate for the ALJ to discount one of Dr.
Westbrook's opinions in part because it was inconsistent with her statement that Bales could perform
his activities of daily living with minimal interference due to pain.
41

VI.

Conclusion

Bales requests reversal and remand of the Commissioner's decision with instructions to
award benefits, or in the alternative reversal and remand with instructions to further consider his
case.

Title 42 U.S.C. § 405(g) governs judicial review of final decisions made by the

Commissioner.

Buckner v. Apfel. 213 F.3d 1006, 1010 (8th Cir. 2000).

Sentence four of

§ 405(g) permits a district court to enter "a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without remanding the cause for a
rehearing."

Remand with instructions to award benefits is appropriate "only if the record

overwhelmingly supports such a finding." Buckner, 213 F.3dat 1011 (internal citation omitted).
Here, reversal and remand is warranted not because the evidence of Bales's disability is

overwhelming, but because the evidence must be clarified and properly evaluated. Accordingly,
"out of our abundant deference to the ALJ," remand under sentence four of § 405(g) for further
administrative proceedings is the appropriate course.

Buckner, 213 F.3d at 1011 (internal

citation omitted).
For the reasons stated above, it is hereby

ORDERED that the decision ofthe Commissioner is reversed and this action is remanded
to the Social Security Administration for the purpose of reevaluation, consistent with this
Opinion and Order.

Dated March d^U , 2014
BY THE COURT:

f

ROBERTO A. LANGI

UNITED STATES DISTRICT JUDGE

42