Bormes v. Colvin
MEMORANDUM OPINION AND ORDER. Signed by US Magistrate Judge Veronica L. Duffy on 10/18/2017. (CG)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
MARK R. BORMES,
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
Plaintiff, Mark R. Bormes, seeks judicial review of the Commissioner=s
final decision denying him payment of supplemental security income (SSI)
benefits under Title XVI of the Social Security Act. 1 Mr. Bormes has filed a
complaint and has requested the court to reverse the Commissioner=s final
benefits are sometimes called ATitle XVI@ benefits, and SSD/DIB benefits
are sometimes called ATitle II benefits.@ Receipt of both forms of benefits is
dependent upon whether the claimant is disabled. The definition of disability
is the same under both Titles. The difference Bgreatly simplified--is that a
claimant=s entitlement to SSD/DIB benefits is dependent upon one’s Acoverage@
status (calculated according to one’s earning history), and the amount of
benefits are likewise calculated according to a formula using the claimant=s
earning history. There are no such Acoverage@ requirements for SSI benefits,
but the potential amount of SSI benefits is uniform and set by statute,
dependent upon the claimant=s financial situation, and reduced by the
claimant=s earnings, if any. There are corresponding and usually identical
regulations for each type of benefit. See e.g. 20 C.F.R. ' 404.1520 and
' 416.920 (evaluation of disability using the five-step procedure under Title II
and Title XVI). In this case, Mr. Bormes filed his application for SSI benefits
only. AR 184-92.
decision denying him disability benefits and to enter an order awarding
benefits. Alternatively, Mr. Bormes requests the court remand the matter to
the Social Security Administration for further hearing. The matter is fully
briefed and is ready for decision. For the reasons more fully explained below,
the Commissioner=s decision is reversed and remanded.
This appeal of the Commissioner=s final decision denying benefits is
properly before the district court pursuant to 42 U.S.C. ' 405(g). This matter is
before this magistrate judge pursuant to the consent of the parties. See 28
U.S.C. § 636(c).
STIPULATED FACTS 2
Claimant Mark Bormes (“Claimant”) is a male born April 12, 1961. AR
184. On November 25, 2013, Claimant protectively filed an application for
supplemental security income (“SSI Claim”), alleging disability since October 1,
1996. AR 184-192. The Social Security Administration (“SSA”) denied
Claimant’s SSI claim initially on March 7, 2014, and on reconsideration on
October 22, 2014. AR 114-116, 123-129.
On November 5, 2014, Claimant filed a written request for hearing. AR
130-133. On November 16, 2015, Claimant appeared and testified before
The stipulated facts were agreed upon and submitted by the parties. See
Docket No. 13. The paragraph numbers have been deleted and headings have
been added by the court. Some grammatical and/or stylistic changes have
been made. Otherwise, the stipulated facts are recited in this opinion from the
parties’ joint submission. Facts will be supplemented as deemed necessary by
the court in the DISCUSSION section of this opinion.
Administrative Law Judge Denzel Busick (the “ALJ”) at a hearing held in Sioux
Falls, South Dakota. AR 64-99. James Miller, an impartial vocational expert
(“VE”), also testified at the hearing. AR 64. On December 21, 2015, the ALJ
issued an unfavorable decision. AR 43-57.
On February 11, 2016, Claimant requested the Appeals Council to review
the ALJ’s decision. AR 42. On September 1, 2016, the Appeals Council denied
Claimant’s request for review. AR 1-7.
The ALJ found that the Claimant has not engaged in substantial gainful
activity since November 25, 2013, the date of the application at issue. AR 48.
(Decision 3). The ALJ found that Claimant has the following severe
impairments pursuant to 20 CFR 416.920; eczema 3 and hearing problems. AR
48. (Decision 3.) At the hearing, Claimant testified he was not alleging
disability due to poor hearing. AR 80. The ALJ determined that Claimant’s
medically determinable impairment of affective disorders and anxiety disorders
were non-severe. AR 48. (Decision 3.)
In June 2014, Claimant’s human immunodeficiency virus (HIV) test was
positive and asymptomatic. AR 345. Charles Shafer, M.D., also assessed
chronic hepatitis B virus. AR 345. (Ex. 5/F/9).
In his July 2014 Function Report, Claimant stated that he lived alone,
prepared meals, fed and walked his dog, watched television, did laundry,
mowed his small yard, and did light housework. AR 251-253. Claimant also
Eczema is defined as “an inflammatory condition of the skin characterized by
redness, itching, and oozing vesicular lesions which become scaly, crusted or
hardened.” “eczema.” Merriam-Webster Online Dictionary 2017.
http://www.merriam-webster.com (17 March 2017).
said he drove, gardened, shopped in stores, and went to his brother’s house for
dinner once a week. AR 254-255. He said he had no problems shaving,
feeding himself, caring for his hair, and using the toilet. AR 252.
At the hearing, Claimant testified that he was diagnosed with HIV in
1991. AR 71. He said that he continued to work for at least the next four
years. AR 71. Claimant testified that he was diagnosed with full-blown AIDS
in 2005. AR 71. Claimant testified that he was diagnosed with Hepatitis B in
about 1995. AR 71-72.
Claimant testified that he takes the following prescription medications to
treat his HIV condition: Epzicom and Triumeq. AR 74. Claimant testified that
he takes the following prescription medications to treat his conditions of
affective disorders and anxiety disorder: Klonopin, Abilify and Doxepin. AR
Claimant testified that he has been continuously treated for HIV and
hepatitis B since he was diagnosed with those diseases. AR 72. Claimant
testified that he takes the following prescription medications to treat hepatitis
B: Viry. AR 73.
The ALJ found the Claimant has the RFC to perform light work as
defined by 20 CFR 416.967(b) as follows: can lift 20 pounds occasionally and
less than 10 pounds frequently; can sit for a total of 6 hours, as well as stand
and walk, combined, a total of 6 hours in an 8-hour day; no limits in reaching
and handling; is able to perform all postural activities frequently; has no visual
limits with proper glasses; has some difficulty hearing; and is unable to wear a
hearing aid, thus he must avoid environments with loud noise, large crowd
noise, and loud background noise. AR 49-50. (Decision p. 4.)
Treatment notes dated December 2012, August 2013, February 2014,
June 2014, and July 2015 indicated that Claimant’s HIV testing was positive,
but asymptomatic (AR. 289, 300, 345, 360, 396). At an August 2013 HIV
follow-up appointment, Claimant reported new skin lesions. AR 286. He said
that his current skin lesions were always related to heat. AR 286. Claimant
also said that he used Triamcinolone Acetonide Cream (TAC) and Hibiclens,
which helped a bit. AR 286. Charles Shafer, M.D., thought that Claimant’s
skin issues involved “some component from psych/stress.” AR 289.
In November 2013, Claimant sought treatment for a left groin rash,
which he attributed to recurrent fungal problems. AR 285. Claimant had no
other concerns of fever, chills, headaches, nausea or vomiting. AR 285.
At a December 2013 psychotherapy appointment, Claimant’s speech,
attitude, cognitive functioning and affect were normal. AR 308. His thought
processes and thought content were not impaired. AR 308. He said he felt
good physically and emotionally and was coping with stressors well. AR 308.
At a follow-up psychiatry visit that same month, Claimant said the
Thanksgiving holiday was a little stressful, but he had not had a major
breakout of hives. AR 307. He said his medications were working fine. AR
When Claimant returned to psychotherapy in January 2014, his
appearance, grooming, and attitude were normal. AR 362. He was also
cooperative with no behavior abnormalities. AR 362. Claimant reported he did
not have a painful breakout of sores, but was frustrated because he was sick.
AR 362-363. At a follow-up later that month, Claimant reported anxiety
because his car window was broken. AR 361. He also said some family issues
caused him to “break out.” AR 361. During the session, Erin Sanford, M.A.,
worked with Claimant on better ways to manage his feelings and stress levels
so as to help with the breakouts and associated pain. AR 361.
In a January 2, 2014, letter to Disability Determination Services, Vicki
Harkness, Claimant’s social worker, stated that he enjoyed gardening,
watching television, walking his dog, and exploring antique stores. AR 330.
In March 2014, Claimant told Rajesh Singh, M.D., that he was doing fair
and his mood was fairly stable. AR 353. He said that he used Xanax when he
started to feel breakouts, which seemed to help. AR 353. Claimant also said
Celexa seemed to be working well. AR 353. Dr. Singh noted Claimant was
alert with coherent thoughts. AR 353. He did not make any medication
changes. AR 353.
In August 2014, Claimant told Ms. Sanford that he still had some painful
skin rashes and bumps, but for the most part, they were getting better. AR
422. Claimant said his health was great and he was doing better with his
anxiety. AR 422.
Also in August 2014, Claimant followed up with Dr. Shafer. AR 423.
Claimant reported that he had not been using his TAC ointment and creams on
a regular basis, and never more than once per day. AR 423. He said his skin
felt better when he used the ointments/creams, but that it eventually peeled
and seemed worse. AR 423. Claimant said his skin always got worse when he
was emotionally stressed. AR 423. Dr. Shafer instructed Claimant to use the
ointment when his rash was really bad, and then use the cream when it got
better. AR 426.
In September 2014, Claimant attended a psychotherapy follow-up. AR
419. He said that his physical health “has been good,” and he reported no
major rashes or breakouts. AR 420. Claimant also said he was doing some
things to improve his self-care such as gardening, accepting invitations to do
things with his brother, etc. AR 420.
In December 2014, Claimant told Dr. Singh that his skin symptoms were
worse when stressed. AR 470.
In February 2015, Claimant sought treatment for generalized anxiety
disorder. AR 475. He reported that a rash on his left leg had gotten worse over
the past week secondary to stress and anxiety pertaining to family and
financial stressors. AR 475. Claimant also reported that aside from situational
anxiety, his moods had been good with no depression or feelings of
helplessness/hopelessness. AR 475. He also said his sleep had been better
the past couple of days. AR 475. Claimant’s symptoms were “well controlled”
on current psychiatric medications, and he reported no side effects. AR 476.
In April 2015, Claimant saw Dr. Shafer for a re-check of multiple medical
problems. AR 402. He reported a right lower leg rash, but said that he had
stopped using his TAC cream and ointment because it caused burning. AR
402. Claimant reported no nausea, vomiting, abdominal pain, or diarrhea. AR
402. Dr. Shafer instructed Claimant to restart the TAC ointment for his right
leg rash. AR 405. He also recommended that Claimant “get out and exercise.”
At a May 2015 psychiatry appointment, Claimant reported family and
financial stressors, but said that he was still gardening and trying to get out
and do things. AR 484. He believed his medications were adequately
managing his symptoms with no reported side effects. AR 484. On
examination, Claimant was well-groomed, appropriate, and cooperative. AR
486. His speech and thought processes were normal, his associations were
intact, his judgment and insight were fair, and his mood, attention, and
concentration were good. AR 486. Dr. Singh instructed Claimant to continue
his current mediations. AR 486.
In July 2015, Claimant reported that his skin issues had worsened
amount a month ago due to stress, but were currently improving. AR 377. He
also said he experienced some diarrhea about 2 months ago but that is had
cleared up on its own. AR 377.
In October 2015, Claimant told Dr. Shafer that his skin broke out due to
stress after learning that he had to visit with a judge regarding his disability
claim. AR 383. Claimant also reported right ear fullness and discomfort, but
his recent labs were “really quite excellent.” AR 383. He reported no nausea,
vomiting, or diarrhea. AR 383. He said he experienced abdominal pain when
anxious, but that it resolved when the source of stress disappeared. AR 383.
On examination, Claimant was alert and in no acute distress. AR 384.
In an April 2015, “To Whom It May Concern” letter, Dr. Shafer, one of
Claimant’s treating physicians, opined that Claimant struggled with a number
of medical and mental health issues. AR 370. He concluded that Claimant was
not able to work at that time due to the combination of his diagnoses and
treatment. AR 370. (Ex 7F).
In December 2014, Dr. Singh, Claimant’s psychiatrist, opined that
Claimant was unable to work due to generalized anxiety disorder combined
with his chronic medical conditions. AR 369. (Ex 6F).
In his December 21, 2015, decision, the ALJ determined that the
Claimant had no past relevant work. AR 52. (Decision 7). At the November
16, 2015, hearing, Claimant testified that he has an associates degree in
fashion merchandising and visual merchandising. AR 69. Claimant testified
that his last full time work was with Bloomingdales department store, which
ended in 1996. AR 70. Claimant testified that he earned about $3,500 in
2014, and would earn approximately $3,500 by the end of 2015. AR 70.
Claimant testified that he lived alone and was able to care for himself “pretty
good.” AR 83. He also testified that his doctors had never advised him not to
work. AR 84.
At the hearing, the ALJ asked the VE to consider a hypothetical
individual with limitations that matched the ALJ’s ultimate RFC finding. AR
49-50, 88-89. The VE testified that such a hypothetical individual could
perform light, unskilled jobs of an electronics worker, motel cleaner, and
survey worker. AR 90. Accordingly, the ALJ found that Claimant was not
disabled because there are jobs existing in significant numbers in the national
economy that Claimant can perform. AR 52-53. (Decision 8).
Based on the testimony of the VE, the ALJ found that “considering age,
education, work experience and RFC, the claimant is capable of making a
successful adjustment to other work existing in significant numbers in the
national economy.” Accordingly, the ALJ determined that Claimant was not
disabled between November 25, 2013, the date he protectively applied for SSI,
and December 21, 2015, the date of the ALJ’s decision. AR 53. (Decision 8).
Claimant testified that the side effects he experiences from taking Viry
are severe fatigue and diarrhea. AR 73. Claimant testified that the diarrhea he
experiences requires him to immediately need to use a bathroom and he
experiences this type of diarrhea about once per week and the episode of
diarrhea can last for four or five days. AR 73-74.
Claimant testified that he took Triumeq to treat his HIV and took a pill
that combined Reyataz and Epzicom. AR 74. Claimant testified that for years
he has suffered from severe fatigue cause by his HIV medications. AR 74-75.
Claimant testified that the fatigue he experiences requires naps about 10:3011:00 a.m. of one to three hours. AR 75.
Claimant testified that he takes Doxepin primarily to treat skin rashes.
AR 76. He also said that it helped with his depression. AR 76. Claimant
testified that the rash condition he experiences manifests itself as sores the
size of nickels or dimes. AR 76. Claimant testified that the sores he
experiences develop primarily on his wrists, legs, ankles, feet and toes. AR 7678. Claimant testified that his sores bleed and ooze bodily fluid. AR 76.
Claimant described these sores as being nearly constant and having about a 10
day cycle. AR 77. Claimant testified that he takes triamcinolone to treat his
sores. AR 77.
Claimant testified that he is about half deaf in each ear. AR 79.
Claimant testified that he is unable to wear hearing aids. AR 80. Claimant
testified that he takes Klonopin twice daily. AR 81. Claimant testified that
taking Klonopin causes him to experience confusion. AR 81. He also testified
that he described the confusion he experienced to his doctor. AR 82. His
doctor did not suggest discontinuing the drug. AR 82. Instead, he instructed
Claimant to take it twice a day, but adjust it down a couple of hours, which
Claimant said seemed to help. AR 82. Claimant testified that he experiences
drowsiness from Klonopin and Xanax. AR 82. Claimant testified that he would
require a nap of about one hour in the morning and in the afternoon if he
worked an 8-hour job. AR 85. Claimant testified that the Klonopin would
cause him to feel “a step behind everything.” AR 86.
Claimant testified that because of his hepatitis B, he must clean his
socks or other things which came in contact with bodily fluids from his sores
with bleach. AR 87. Claimant testified that sometimes the bodily fluid from
his sores which gets in his socks cannot be cleaned with bleach so he must
throw away the socks. AR 87.
The VE’s opinion is that a person able to perform light level work
requiring a 30 minute to one hour break during the first half of the day and
another 30 minute to one hour break in the afternoon would not be able to
maintain competitive full-time employment. AR 91. The VE’s opinion is that
an unskilled person with moderate limitations on his ability to perform because
of the side effects of Doxepin which Claimant described would not be capable of
competitive employment. AR 92-94. The VE’s opinion is that employers would
not be willing to “deal” with an employee with HIV and hepatitis B who
experiences an outbreak of sores as Claimant described his condition. AR 95.
Standard of Review.
When reviewing a denial of benefits, the court will uphold the
Commissioner=s final decision if it is supported by substantial evidence on the
record as a whole. 42 U.S.C. ' 405(g); Minor v. Astrue, 574 F.3d 625, 627
(8th Cir. 2009). Substantial evidence is defined as more than a mere scintilla,
less than a preponderance, and that which a reasonable mind might accept as
adequate to support the Commissioner=s conclusion. Richardson v. Perales,
402 U.S. 389, 401 (1971); Klug v. Weinberger, 514 F.2d 423, 425
(8th Cir. 1975). AThis review is more than a search of the record for evidence
supporting the [Commissioner=s] findings, and requires a scrutinizing analysis,
not merely a rubber stamp of the [Commissioner’s] action.” Scott ex rel. Scott
v. Astrue, 529 F.3d 818, 821 (8th Cir. 2008) (internal punctuation altered,
In assessing the substantiality of the evidence, the evidence that detracts
from the Commissioner=s decision must be considered, along with the evidence
supporting it. Minor, 574 F.3d at 627. The Commissioner=s decision may not
be reversed merely because substantial evidence would have supported an
opposite decision. Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005); Woolf
v. Shalala 3 F.3d 1210, 1213 (8th Cir. 1993). If it is possible to draw two
inconsistent positions from the evidence and one of those positions represents
the Commissioner=s findings, the Commissioner must be affirmed. Oberst v.
Shalala, 2 F.3d 249, 250 (8th Cir. 1993). AIn short, a reviewing court should
neither consider a claim de novo, nor abdicate its function to carefully analyze
the entire record.@ Mittlestedt v. Apfel, 204 F.3d 847, 851
(8th Cir. 2000)(citations omitted).
The court must also review the decision by the ALJ to determine if an
error of law has been committed. Smith v. Sullivan, 982 F.2d 308, 311
(8th Cir. 1992); 42 U.S.C. ' 405(g). Specifically, a court must evaluate whether
the ALJ applied an erroneous legal standard in the disability analysis.
Erroneous interpretations of law will be reversed. Walker v. Apfel, 141 F.3d
852, 853 (8th Cir. 1998)(citations omitted). The Commissioner=s conclusions
of law are only persuasive, not binding, on the reviewing court. Smith, 982
F.2d at 311.
The Disability Determination and the Five-Step Procedure.
Social Security law defines disability as the inability to do any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than twelve
months. 42 U.S.C. '' 416(I), 423(d)(1); 20 C.F.R. ' 404.1505. The impairment
must be severe, making the claimant unable to do his previous work, or any
other substantial gainful activity which exists in the national economy.
42 U.S.C. ' 423(d)(2); 20 C.F.R. '' 404.1505-404.1511.
The ALJ applies a five-step procedure to decide whether an applicant is
disabled. This sequential analysis is mandatory for all SSI and SSD/DIB
applications. Smith v. Shalala, 987 F.2d 1371, 1373 (8th Cir. 1993); 20 C.F.R.
' 404.1520. When a determination that an applicant is or is not disabled can
be made at any step, evaluation under a subsequent step is unnecessary.
Bartlett v. Heckler, 777 F.2d 1318, 1319 (8th Cir. 1985). The five steps are as
Step One: Determine whether the applicant is presently engaged
in substantial gainful activity. 20 C.F.R. ' 404.1520(b). If the
applicant is engaged in substantial gainful activity, he is not
disabled and the inquiry ends at this step.
Step Two: Determine whether the applicant has an impairment or
combination of impairments that are severe, i.e. whether any of the
applicant=s impairments or combination of impairments
significantly limit his physical or mental ability to do basic work
activities. 20 C.F.R. ' 404.1520(c). If there is no such impairment
or combination of impairments the applicant is not disabled and
the inquiry ends at this step. NOTE: the regulations prescribe a
special procedure for analyzing mental impairments to determine
whether they are severe. Browning v. Sullivan, 958 F.2d 817, 821
(8th Cir. 1992); 20 C.F.R. ' 1520a. This special procedure
includes completion of a Psychiatric Review Technique Form
Step Three: Determine whether any of the severe impairments
identified in Step Two meets or equals a AListing@ in Appendix 1,
Subpart P, Part 404. 20 C.F.R. ' 404.1520(d). If an impairment
meets or equals a Listing, the applicant will be considered disabled
without further inquiry. Bartlett 777 F.2d at 1320, n.2. This is
because the regulations recognize the AListed@ impairments are so
severe that they prevent a person from pursuing any gainful work.
Heckler v. Campbell, 461 U.S. 458, 460, (1983). If the applicant=s
impairment(s) are severe but do not meet or equal a Listed
impairment the ALJ must proceed to step four. NOTE: The Aspecial
procedure@ for mental impairments also applies to determine
whether a severe mental impairment meets or equals a Listing.
20 C.F.R. ' 1520a(c)(2).
Step Four: Determine whether the applicant is capable of
performing past relevant work (PRW). To make this determination,
the ALJ considers the limiting effects of all the applicant=s
impairments, (even those that are not severe) to determine the
applicant=s residual functional capacity (RFC). If the applicant=s
RFC allows him to meet the physical and mental demands of his
past work, he is not disabled. 20 C.F.R. '' 404.1520(e);
404.1545(e). If the applicant=s RFC does not allow him to meet the
physical and mental demands of his past work, the ALJ must
proceed to Step Five.
Step Five: Determine whether any substantial gainful activity
exists in the national economy which the applicant can perform.
To make this determination, the ALJ considers the applicant=s
RFC, along with his age, education, and past work experience. 20
C.F.R. ' 1520(f).
Burden of Proof.
The plaintiff bears the burden of proof at steps one through four of the
five-step inquiry. Barrett v. Shalala, 38 F.3d 1019, 1024 (8th Cir. 1994);
Mittlestedt, 204 F.3d at 852; 20 C.F.R. ' 404.1512(a). The burden of proof
shifts to the Commissioner at step five. AThis shifting of the burden of proof to
the Commissioner is neither statutory nor regulatory, but instead, originates
from judicial practices.@ Brown v. Apfel, 192 F.3d 492, 498 (5th Cir. 1999).
The burden shifting at step five has also been referred to as Anot statutory,
but . . . a long standing judicial gloss on the Social Security Act.@ Walker v.
Bowen, 834 F.2d 635, 640 (7th Cir. 1987). Moreover, “[t]he burden of
persuasion to prove disability and to demonstrate RFC remains on the
claimant, even when the burden of production shifts to the Commissioner at
step five.” Stormo v. Barnhart 377 F.3d 801, 806 (8th Cir. 2004).
The ALJ Erred in Discrediting Mr. Bormes' Testimony
Polaski and Its Progeny
The sole issue raised in this appeal by Mr. Bormes is whether the ALJ
erred in discrediting Mr. Bormes' testimony. This analysis must begin with the
principle that the court must Adefer to the ALJ=s determinations regarding the
credibility of testimony, so long as they are supported by good reasons and
substantial evidence.@ Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir.
2005). AWhen an ALJ reviews a claimant=s subjective allegations . . . and
determines whether the claimant and his testimony are credible, the ALJ must
examine the factors listed in Polaski and apply those factors to the individual.@
Reynolds v. Chater, 82 F.3d 254, 258 (8th Cir. 1996).
In determining whether to fully credit a claimant=s subjective complaints,
an ALJ must consider several factors, including: whether such complaints are
supported by objective medical findings, whether the claimant has refused to
follow a recommended course of treatment, whether the claimant has received
minimal medical treatment, whether the claimant takes only occasional
medications, the claimant=s prior work record, observation of third parties and
examining physicians relating to the claimant=s daily activities; the duration,
frequency, and intensity of the symptoms; precipitating and aggravating
factors; dosage, effectiveness, and side effects of medication; and functional
restrictions. Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007) (citing
Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984)). A claimant=s
subjective complaints may be discredited only if they are inconsistent with the
evidence as a whole. Id.
With regard to the factor of a claimant=s daily activities, the ALJ must
consider the Aquality of the daily activities and the ability to sustain activities,
interest, and relate to others over a period of time and the frequency,
appropriateness, and independence of the activities.@ Wagner, 499 F.3d at 852
(citing Leckenby v. Astrue, 487 F.3d 626, 634 (8th Cir. 2007)) (emphasis in
original). Although activities which are inconsistent with a claimant=s
testimony of a disabling condition reflect negatively on the claimant=s
credibility, the ability to do light housework and occasional visiting with friends
does not support a finding that the claimant can do full-time work in the
Acompetitive and stressful conditions in which real people work in the real
world.@ Reed v. Barnhart, 399 F.3d 917, 923 (8th Cir. 2005) (quoting Thomas
v. Sullivan, 876 F.2d 666, 669 (8th Cir. 1989)).
In the Wagner case, the ALJ=s discrediting of the claimant=s subjective
complaints of pain was affirmed on appeal where Wagner had engaged in
extensive daily activities, as evidenced by his ADaily Activities Questionnaire@
and his testimony at the hearing, and where his testimony as to the limiting
effect of his pain was inconsistent with the medical record because his records
reflected that he did not pursue ongoing evaluation or treatment for his pain
and he did not seek or take pain medication on a regular basis. Wagner, 499
F.3d at 852-853. See also Baker v. Barnhart, 457 F.3d 882, 892-894 (8th Cir.
2006) (affirming ALJ=s discrediting of claimant=s subjective complaints of pain
where claimant engaged in a significant amount of activities of daily livingBfull
self-care, driving a car, shopping, and running errandsBa medical source
opined that the claimant engaged in symptom exaggeration, the claimant did
not take pain medication, and the absence of an etiology for the alleged pain).
In Bentley v. Shalala, 52 F3d 784, 785-786 (8th Cir. 1995), the ALJ=s
discrediting of the claimant=s subjective complaints of pain was affirmed on
appeal where the claimant had not sought medical treatment for his pain for a
long period of time and was not taking any prescription medication for pain. In
addition, the record reflected that the claimant had applied for a number of
jobs during his claimed disability period. Id.
In Harvey, an ALJ who discredited the claimant=s testimony as to
limitations on his activities was affirmed where the evidence showed the
claimant had made prior inconsistent statements to his physicians regarding
his limitations and his asserted need to use crutches or a non-prescribed
walker was inconsistent with statements made by the claimant on other
occasions. Harvey v. Barnhart, 368 F.3d 1013, 1015-1016 (8th Cir. 2004).
In Guilliams, 393 F.3d at 802-803, the Eighth Circuit affirmed an ALJ=s
discrediting of the claimant=s subjective complaints of back pain where
claimant used a cane, but no medical prescription for the cane existed; where
several medical exams revealed the claimant to be in no significant distress;
where MRIs of the spine revealed essentially normal findings; where the
claimant=s muscle mass was not atrophied despite his allegation of restriction
of motion and diminishment of strength; where the claimant declined to follow
medical advice regarding treatment of his pain; and where medical evidence
demonstrated that pain medication alleviated the claimant=s symptoms of pain.
In Dolph v. Barnhart, 308 F.3d 876, 879-880 (8th Cir. 2002), the ALJ=s
discrediting of the claimant=s subjective complaints of pain from kidney disease
and degenerative spine disease was affirmed where the claimant=s records of
her kidney disease showed Aconsistently stable renal function@ and there was
no record support for "complaints of ongoing, severe, protracted discomfort.@
It is the above body of law this court applies to the review of the record in
Evidence Before the ALJ
Although the key question before the ALJ is whether the evidence
showed Mr. Bormes to be disabled during the period from his disability
application (November 25, 2013), until the date of the hearing (November 16,
2015), nevertheless the ALJ is required to review all of the relevant medical
evidence. The ALJ acknowledged this rule when reciting that he did not limit
his review of medical records to only that time period between the application
and the hearing. This court, then, also takes a longitudinal view of the medical
The oldest medical record consists of a letter from Physician's Assistant
Heather Hennigan Wadley dated October 29, 2010. AR 212. In this letter,
Ms. Wadley states Mr. Bormes suffers from a "debilitating rash" of unknown
cause which has lasted for 18 months—since March, 2009. Id. Ms. Wadley
opines that the rash rendered Mr. Bormes incapable of employment. Id.
Mr. Bormes moved to Sioux Falls in approximately 2011. The medical
records from Mr. Bormes' Sioux Falls medical providers begin on November 22,
2013, and extend until March, 2016. 4 Those records reflect that Mr. Bormes
consistently saw Dr. Rajesh Singh for psychiatry treatment, Dr. Charles Shafer
for infectious disease treatment, and Erin Weber/Sanford for counseling.
Nearly every one of these documents records Mr. Bormes' ongoing
problem with his rash, which never disappeared at any time during this twoand-a-half year period. See AR 36, 38, 63-64, 286, 290, 292, 328-31, 383-85,
393-97, 402-06, 411-15, 423-26, 438-40, 441-42, 444, 445-46, 447, 470, 475,
493-94, 497-98. Although the rash was sometimes described as eczema (AR
423-26), the doctors also described it numerous times as prurigo nodularis,
stasis dermatitis, and hyperkeratosis. AR 36, 328-31, 393-97, 403, 405, 41115, 438-40. The medical records explain prurigo nodularis is a condition with
painful eruptions of skin that itch and ooze. AR 328-31.
Although pre-November, 2013, medical records from Dr. Singh and Dr. Shafer
are not in the administrative record, Mr. Bormes testified he began seeing these
doctors immediately upon his relocation to Sioux Falls. AR 72-73.
Regardless of the label one puts on the condition, the physical
description of these rashes and sores is dramatic. In November, 2013, he was
described as having "multiple scaly lesions." AR 446. In January, 2014,
medical records describe leg sores that had existed since the preceding
summer and would not go away. AR 441-42. In February, 2014, records
described Mr. Bormes' lesions as "multiple excoriations, some as big as 2.5
centimeters in diameter on his lower legs with smaller lesions on his arms." AR
438-40. In August, 2014, medical records document that his sores were worse,
with two palm-sized areas on Mr. Bormes' right calf, dark purple and red with
cracking. AR 423-26. Mr. Bormes' left calf had a similar area of five
centimeters in diameter. Id. In July, 2015, Dr. Shafer described Mr. Bormes
as having "bleeders" all over his body. AR 393-97. In September, 2015,
Mr. Bormes' skin was described in medical records as "splitting." AR 494. His
skin condition was repeatedly described as "chronic" and "excoriated" (i.e. the
upper layer of skin is gone) with open areas. See, e.g. AR 36, 394, 403,
Nor were the sores confined to his arms and legs. Beginning in April,
2015, Mr. Bormes' rash spread to his hands, fingers, and fingertips, causing
splitting, oozing skin. AR 402-06. Six months later, in October, 2015, medical
records document the skin on Mr. Bormes' fingers was tearing and easily split.
AR 383-85. A year after Mr. Bormes' rash had spread to his hands, it was still
uncontrolled. In March, 2016, medical records documented thickened,
cracking skin on his hands. AR 36. Mr. Bormes was forced to wear gloves
when working with his hands. Id. The lesions had spread from his palm, to
his fingers, and to his fingertips. Id. Dr. Shafer stated the obvious in a
February, 2016, medical record when he noted that Mr. Bormes' hands had not
gotten better. AR 38. At this same time, Mr. Bormes' medical records
document a six-by-three centimeter lesion on his right calf that was excoriated.
No medical record documents a specific cause for Mr. Bormes' rash.
There is some indication it is caused by the AIDS medications he is required to
take or AIDS itself. There also seems to be some correlation between
Mr. Bormes' anxiety and his rash. The medical records document that
Mr. Bormes has continually sought care for his anxiety, has continually been
prescribed medication for his anxiety, has faithfully taken his prescribed
anxiety medication, and yet the anxiety is not controlled well by medication.
AR 369, 470, 493-94, 497-98. He has made regular appointments with
Dr. Singh and Ms. Weber/Sanford for mental health treatment, he has kept
those appointments, and he has taken all medication prescribed for his mental
Mr. Bormes' medical records also document a long-standing problem
with fatigue or exhaustion as a result of his medications, causing him to sleep
excessively and feel like he was "in a daze." AR 328-31, 438-40. The records
document that he was taking a two-hour nap in the afternoon every day and
that this practice had occurred for over 12 years. AR 328-31, 438-40.
Testimony From the Hearing
Mr. Bormes testified at the hearing before the ALJ. AR 71-87. He
testified he was first diagnosed with HIV in 1991. AR 71. He was diagnosed
with hepatitis B in 1995. Id. He developed full-blown AIDS in 2005. Id. He
was diagnosed with post-traumatic stress disorder and anxiety disorder while
he was living in Oklahoma prior to 2011. AR 72. He moved to Sioux Falls,
South Dakota, in 2011. Id.
Once he arrived here, he began seeing Dr. Rajesh Singh, a psychiatrist,
and Dr. Charles Shafer, an infectious disease specialist. Id. He takes
numerous medications for his conditions. He takes Viry for hepatitis B. AR
73-74. This medication causes severe fatigue as a side effect as well as giving
him diarrhea three to four times per month. Id. The diarrhea, when it occurs,
can last up to four or five days. Id.
Mr. Bormes testified he takes Epzicom and Triumeq for his AIDS. AR 74.
This medication also causes severe fatigue as well as skin rashes. Id.
Mr. Bormes testified the fatigue caused by his medicines causes him to take a
one- to three-hour nap every day. AR 75. Some days Mr. Bormes testified he
needs two naps. AR 83. This has been an ongoing problem for about 25 years,
or since about 1991 when he was first diagnosed with HIV. AR 75.
For his anxiety, Mr. Bormes takes Klonopin, Abilify and Doxepin. Id.
The Klonopin makes him confused sometimes resulting in him getting mixed
up while driving. AR 81. The effect of Klonopin on his cognition is that he feels
"slow as a turtle" or "a step behind" both mentally and physically. AR 86.
Mr. Bormes described his skin condition as consisting of nickel- to dimesized sores, mostly on his feet and wrists, but also on his legs, armpits or
anywhere on his body. AR 76, 78. These sores bleed and ooze bodily fluid a
lot. AR 76. His skin condition never goes away. AR 77. He uses Trisimilone
cream for his skin condition, but it never clears it up. Id. Fluid from his sores
transfers to his socks or whatever the sores come into contact with. AR 78.
Mr. Bormes testified he usually has to wash his socks in bleach or even throw
them away because of the oozing of his sores. AR 87.
A vocational expert (VE), James Miller, testified no employment was
available for someone who needed a 15-minute nap in the morning and
another 15-minute nap in the afternoon. AR 91. The VE also testified that the
combination of Mr. Bormes' infectious diseases (AIDS and Hepatitis B) along
with his sores that break open and ooze blood would eliminate most
employment. AR 94-95. Although he stated there might be some jobs where
potential contamination might not be an issue, the VE testified "I can't imagine
employers dealing with that." AR 95. The VE also testified if someone suffered
from mental confusion such that they were "off task" more than 5-10 percent of
the time, they would not be able to hold any type of competitive employment.
However, if the sores, naps, and confusion were not considered, and if
one assumed Mr. Bormes had the ability to perform work at the light duty
designation, then Mr. Bormes could do the jobs of electronics worker, a motel
cleaner, and a survey worker. AR 89-90. No work would be available for
Mr. Bormes at a sedentary level. AR 90.
The ALJ's Decision
The ALJ characterized Mr. Bormes' severe impairments to be "eczema"
and a hearing impairment. AR 48. The ALJ characterized Mr. Bormes'
nonsevere impairments to be affective disorder and anxiety disorder. Id. The
ALJ did not even mention Mr. Bormes' HIV, AIDS, or Hepatitis B (id.), even
though Mr. Bormes alleged he was disabiled due to HIV, medication-induced
fatigue, anxiety and skin lesions (AR 218) and a Disability Determination had
previously found Mr. Bormes suffered from these medically determinable
impairments (AR 107).
The ALJ found that Mr. Bormes' skin condition, hearing impairment and
mental condictions did not impair his activities of daily living at all. AR 48.
The ALJ found these conditions mildly impaired Mr. Bormes' social functioning
and his concentration, persistence and pace. Id. The ALJ found no episodes of
decompensation, which the ALJ defined as temporary increases in Mr. Bormes'
symptoms or signs that impair one of the above three categories (activities of
daily living; social functioning; and concentration, pace, and persistence). Id.
In analyzing step 3 of the sequential analysis, the ALJ considered
whether Mr. Bormes' skin condition met or exceeded listing 8.05. AR 49. In
considering this listing, the ALJ held that the evidence did not demonstrate
extensive lesions with involvement of the hands or feet imposing a marked
limitation of function and no response to treatment. 5 Id. (emphasis added).
Although Dr. Rajesh Singh, Mr. Bormes' longtime treating psychiatrist,
opined that Mr. Bormes was incapable of working (AR 369), the ALJ rejected
that opinion both because it was an opinion on the ultimate question of
disability which was reserved to the ALJ and because Dr. Singh's opinion was
"inconsistent with medical evidence of record." AR 52. Similarly, the ALJ
rejected the disability opinion of Dr. Charles Shafer (AR 370), Mr. Bormes'
longtime infectious disease physician, on the same grounds. Id. Instead,
relying on state physicians' opinions who merely reviewed Mr. Bormes' records
and never examined or treated him, the ALJ found Mr. Bormes' impairments
did not prevent his employment. AR 49-52.
The ALJ determined there was no past relevant work Mr. Bormes could
perform. AR 52. Therefore, the ALJ addressed whether there was other work
available in significant numbers in the national economy that Mr. Bormes
could do. Id.
The ALJ determined Mr. Bormes had the residual functional capacity
(RFC) to perform light work. AR 49-50. This consisted of being able to lift and
carry 20 pounds occasionally, lift and carry 10 pounds frequently, sit for six
Although no party claims error in the ALJ's analysis at step three, this court
notes the ALJ's conclusion that Mr. Bormes' rash did not involve his hands was
in error, as was his conclusion that the rash was responsive to treatment. The
medical records clearly show the rash spread to Mr. Bormes' hands and that
his rash was ongoing for over six years, despite constant treatment. AR 36, 38,
212, 286, 290, 292, 328-31, 383-85, 393-97, 402-06, 411-15, 423-26, 438-40,
441-42, 444-46. This seems to this court to be the very definition of being
unresponsive to treatment.
hours, stand and walk a combined six hours, with no limits on reaching and
handling. AR 50. The light duty designation also encompassed the ALJ's
conclusion Mr. Bormes could perform all postural activities frequently and had
no visual limitations so long as he wore proper glasses. Id. The ALJ conceded
Mr. Bormes had some difficulty hearing and was unable to wear a hearing aid
because of frequent rashes and sores in his ears, so the ALJ concluded he
would have to avoid environments with loud noise. Id.
The ALJ conceded that Mr. Bormes impairments could cause the
symptoms of difficulty in remembering, completing tasks, concentrating,
understanding, following instructions, getting along with others, dressing and
bathing, and being unable to handle financial matters. AR 50-51. However,
the ALJ held Mr. Bormes' testimony concerning the intensity, persistence and
limiting effects of the symptoms were not credible. AR 51. The ALJ relied on
the fact that Mr. Bormes could take medicine, cook meals, mow the lawn, drive
a car, shop, watch television, care for a dog, garden, and go to weekly dinners
at his brother's house. Id. The ALJ concluded these activities were
inconsistent with Mr. Bormes' testimony about the effects of his impairments.
Id. The ALJ then cited to select excerpts from the medical records and the
state agency physicians to support his conclusion. Id.
Analysis of the ALJ's Decision Under Polaski
The Polaski Factors Favor Crediting Mr. Bormes'
Mr. Bormes contends the ALJ improperly discredited his testimony
regarding his need for naps and his skin condition. The appropriate factors to
be considered when evaluating whether a claimant=s subjective complaints are
consistent with the evidence as a whole are: (1) the objective medical evidence;
(2) the claimant=s daily activities; (3) the duration, frequency and intensity of
pain; (3) dosage and effectiveness of medication; (4) precipitating and
aggravating factors; (5) functional restrictions; (6) the claimant=s prior work
history; (7) observations by third parties; (8) diagnosis by treating and
examining physicians; and (9) claimant=s complaints to treating physicians.
See Pearsall v. Massanari, 274 F.3d 1211, 1218 (8th Cir. 2001); Reed v.
Sullivan, 988 F.2d 812, 815 (8th Cir. 1993). See also Polaski v. Heckler, 739
F.2d 1320, 1322 (8th Cir. 1984); 20 C.F.R. ' 404.1529(c)(3) (the Polaski factors
in regulation form).
The ALJ is not required to Aexplicitly discuss each Polaski factor in a
methodical fashion@ but rather it is sufficient if he Aacknowledge[s] and
consider[s] those factors before discounting [the claimant=s] subjective
complaints of pain.@ Brown v. Chater, 87 F.3d 963, 966 (8th Cir. 1996)
The ALJ erred in applying Polaski to Mr. Bormes' testimony. Virtually all
of the Polaski factors favor crediting, not discrediting, Mr. Bormes' testimony.
There is a plethora of objective medical evidence in the record documenting
Mr. Bormes' skin condition, its chronic nature, and its severity. That
information is discussed in detail above. For the ALJ to suggest that
Mr. Bormes' skin condition was better, or "normal" as the ALJ did in in middle
paragraph of AR 51 is simply to not take into account the extensive medical
record documenting Mr. Bormes' objectively-verifiable and severe lesions.
Also, Mr. Bormes never refused to follow a recommended course of
treatment. The medical records are replete with references to his extreme
conscientiousness in taking all prescribed medications.
The medical records do not reveal "minimal medical treatment." Instead,
they reveal that Mr. Bormes was seen by one of his three medical care
providers (Dr. Singh, Dr. Shafer or Ms. Sanford/Weber), every couple of weeks
for a four-year period of time.
Another factor the ALJ should have considered is whether Mr. Bormes
took only occasional medications. Again, this factor supports, rather than
detracts from, Mr. Bormes' testimony. He took numerous medications every
day, some of them twice a day.
The duration, frequency and intensity of Mr. Bormes' symptoms was also
well-documented in the medical records and supported his testimony.
Mr. Bormes' anxiety, AIDS, hepatitis B, and skin condition, and the numerous
medications he was required to take to address those impairments, together
with the severe side effects of some of those medications and conditions, were
never absent from his life. They are documented in every one of Dr. Singh and
Dr. Shafer's visits.
The precipitating and aggravating factors for Mr. Bormes' skin condition
were his AIDS and his anxiety. His doctors tried differing medications, but
none resulted in the skin condition being alleviated. Likewise, differing anti29
anxiety medications were tried, but none resulted in vanquishing Mr. Bormes'
Finally, the dosage, effectiveness, and side effects of Mr. Bormes'
medications were not discussed by the ALJ. These, too, favor crediting rather
than discrediting Mr. Bormes' testimony.
Medical Records Do Not Support Discrediting
Mr. Bormes' Testimony
The ALJ's decision discrediting Mr. Bormes' testimony rested on two
prongs: (1) certain isolated medical records from Erin Weber/Sanford and
others; and (2) Mr. Bormes' activities of daily living. Neither of these suffice
As for Ms. Weber/Sanford, she is not an "accepted medical source"
according to the Commissioner's regulations. See 20 C.F.R. §§ 416.902(a),
416.927. In general, an ALJ may consider evidence from a source who is not
an "accepted medical source" like Ms. Weber/Sanford, but such evidence must
be weighed according to the following factors and compared to the evidence
from treating physicians and state agency physicans who are accepted medical
Bwhether the opinion is consistent with other evidence in the
--whether the opinion is internally consistent;
Bwhether the person giving the medical opinion examined
Bwhether the person giving the medical opinion treated the
Bthe length of the treating relationship;
Bthe frequency of examinations performed;
Bwhether the opinion is supported by relevant evidence,
especially medical signs and laboratory findings;
Bthe degree to which a nonexamining or nontreating
physician provides supporting explanations for their
opinions and the degree to which these opinions
consider all the pertinent evidence about the claim;
--whether the opinion is rendered by a specialist about
medical issues related to his or her area of specialty;
Bwhether any other factors exist to support or contradict the
See 20 C.F.R. ' 416.927(a)-(f); Wagner v. Astrue, 499 F.3d 842, 848 (8th Cir.
AA treating physician=s opinion is given controlling weight >if it is wellsupported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence.= @
House v. Astrue, 500 F.3d 741, 744 (8th Cir. 2007) (quoting Reed v. Barnhart,
399 F.3d 917, 920 (8th Cir. 2005)); 20 C.F.R. ' 416.927(d)(2). AA treating
physician=s opinion >do[es] not automatically control, since the record must be
evaluated as a whole.= @ Reed, 399 F.3d at 920 (quoting Bentley v. Shalala, 52
F.3d 784, 786 (8th Cir. 1995)).
Here, unlike Dr. Singh and Dr. Shafer, Ms. Weber/Sanford does not
qualify as an "accepted medical source." But more importantly, an
examination of her records reveal that they are almost entirely duplicates of
each other. The text of each entry every couple of weeks is simply duplicated
over and over and over again. The inescapable conclusion when one examines
these records is that they do not represent a true record of
Ms. Weber/Sanford's observations and impressions from each counseling
session with Mr. Bormes. For example, Ms. Weber/Sanford's entry for her
counseling session with Mr. Bormes on December 13, 2013, reads as follows:
Encounter Site: Falls Community Health.
This therapist met with client in the therapy office for a follow
psychotherapy session to address symptoms of anxiety and
depression, to talk about difficulties from the week, and to discuss
ways to improve patient's quality of life. Client arrived for session
on time. She [sic] discussed the highs and lows from the previous
week. We reviewed her [sic] progress since our last session and
continued to work on her [sic] personal goals.
The level of consciousness was normal, cognitive functioning was
normal, and no perceptual disturbances were noted. The speech
was normal, no abnormality of coordination/cerebellum was noted,
and gait and stance were normal. No multiple distinct and
complex personalities were observed, the appearance was normal,
and the grooming was normal. The behavior demonstrated no
abnormalities, the attitude was normal, and was cooperative. The
mood was euthymic, the affect was normal, thought processes
were not impaired, and the thought content revealed no
Worked on the patients [sic] care plan and his personal goals to
work on at home. We discussed his needs and continued to
address his emotional health and how it affects his physical
health. We processed and discussed the stressors in his life and
how to work on decreasing unnecessary areas of frustration. The
patient and therapist addressed the following things in session
today: reducing worry, appropriate expression of feelings, and
stress reduction through personal inventory and using coping
skills . . .
Care Plan(s) Given: Mental Health Care Plan and Self-Management
Tool(s) Given: Mental Health Care Plan. Plan to meet client for
follow up visit in 2 weeks. We will continue to address the
patient's identified problem areas and goals. We will continue to
work on lifting the mood and increasing positive attitude. We will
work to stabilize the patient's mood and replace destructive
behaviors with healthy tools of self-care and expression. We will
continue to work on decreasing symptoms of anxiety and
depression and develop helpful coping skills and strategies. We
will also address any problems or concerns that come up in the
See AR 444-45.
Ms. Weber/Sanford's entry for January 2, 2014, was nearly identical.
The "subjective" portion of the record was identical. See AR 442. The
"objective" portion was nearly identical, beginning with "The appearance was
normal and the grooming was normal. The behavior demonstrated no
abnormalities, the attitude was normal, and was cooperative. The mood was
frustrated, was depressed, showed pain, was anxious, and the affect was
incongruent with the mood." AR 442. The remainder of this record under
"objective" beginning with "Worked on patients care plan . . ." and continuing
through ". . . decreasing unnecessary areas of frustration" is identical. AR 443.
The "plan" section of the record is identical to the December 13 entry, with the
addition of one sentence: "The patient left the clinic in stable condition." Id.
All of Ms. Weber/Sanford's records pertaining to Mr. Bormes are
substantially identical. They all report his appearance as "normal" and "well
groomed," his arrival "on time." They all report the identical "subjective"
description, a nearly-identical "objective" description, and identical in all
material respects in the "plan" section. See AR 308-10, 312-17, 319-20, 32226, 385-87, 389-93, 397-402, 406-11, 415-23, 426-35, 436-38, 441-42. The
only part of Ms. Weber/Sanford's records that are differentiated are a few
sentences each visit describing what Mr. Bormes talked about: Christmas, the
death of his dog, a visit to his mother's.
These records do not record how Mr. Bormes' rash was doing, how his
AIDS or hepatitis were doing, how his medications were working, or what the
side effects of his medications were. And for good reason—Ms. Weber/Sanford
was not Mr. Bormes' treating physician for any of these issues. Therefore,
although the records are plentiful, they are not particularly helpful in
determining if the medical evidence supports a finding of disability. Aside from
the fact that the records are very nearly reprints of one another, they do not
address the issues that are at the heart of Mr. Bormes' disability claim.
One record from Ms. Weber/Sanford does address Mr. Bormes' medical
conditions. AR 328-31. This was a functional assessment conducted by
Ms. Weber/Sanford. Id. Although the ALJ cites to this record, he cherry-picks
facts that support his conclusion and ignores the rest. Although the ALJ notes
that Ms. Weber/Sanford describes Mr. Bormes' sores and the fact that he
needs to put ointment on those sores, he completely fails to recite that the
sores have been ongoing for 12 years, that they bleed and ooze, and that they
are resistant to treatment. Compare AR 51 with AR 328-31. Although
Ms. Weber/Sanford states that these sores are associated with Mr. Bormes'
AIDS, as noted above, the ALJ does not even mention in his opinion that
Mr. Bormes has AIDS or hepatitis. Compare AR 51 with AR 328-31. Likewise,
the ALJ ignores Ms. Weber/Sanford's statement that Mr. Bormes' AIDS and
associated medications make him extremely fatigued and he needs naps every
day. Compare AR 51 with AR 328-31.
As described in greater detail above, the medical records from Dr. Singh
and Dr. Shafer do address the core issues related to Mr. Bormes' disability
claim. The records of these accepted medical sources describe in great detail
Mr. Bormes' AIDS, hepatitis, skin lesions, medications, and side effects of those
The ALJ cites to one of Dr. Singh's records dated March 20, 2014, in
which Mr. Bormes self-reported that the Xanax Dr. Singh prescribed "seems to
help" with his rash. See AR 51 (citing to AR 353). This clearly leaves the
reader of the ALJ's opinion with the impression the Xanax was a cure for the
rashes. However, a review of the whole of the medical evidence in the record
shows that the rashes continued long after Mr. Bormes started taking Xanax.
Just three months later, in June, 2014, Dr. Singh documented that
Mr. Bormes' skin breakouts were worse, despite using Xanax twice daily.
AR 463-64. Two months later, Dr. Shafer documented a worsening of
Mr. Bormes' skin condition and described two palm-sized lesions on one of
Mr. Bormes' legs and a 5 centimeter lesion on the other. AR 423-26. Four
months later, Mr. Bormes still had "several" excoriated areas of open skin.
AR 411-15. Two months later, his leg rash was described as "worse." AR 475.
And two months after that, one year after the Dr. Singh record cited by the
ALJ, Mr. Bormes' skin condition was described as "pretty bad" with the rash
now having spread to Mr. Bormes' hands. AR 402-06. Four months later, the
medical evidence shows Mr. Bormes had "bleeders" all over his body with
multiple excoriations of two to three centimeters in various places. AR 393-97.
Two months after that, his skin was described as splitting. AR 491, 493-94. A
month later two separate medical records describe the persistence of the rash
on Mr. Bormes' hands. AR 383-85, 497-98.
The ALJ also cites a July, 2015, pharmacy consultation note from an
examiner who was not one of Mr. Bormes' treating physicians. See AR 51
(citing AR 377). The ALJ cites the record to indicate that Mr. Bormes reported
his skin issues became worse, but were getting better. Id. The ALJ then cites
to one of Ms. Weber/Sanford's duplicitous records from September, 2015, that
Mr. Bormes had a normal appearance and grooming. See AR 51 (citing AR
386). Again, the impression the ALJ seems to be trying to convey is that
Mr. Bormes' skin condition eventually cleared up. However, as the above
recitation of medical evidence shows, that was far from the case.
For the ALJ to cherry-pick medical records and recite them in a
misleading fashion all the while ignoring the great bulk of the relevant medical
evidence in discrediting Mr. Bormes' testimony was error. See Ghanim v.
Colvin, 763 F.3d 1154, 1164, 1166 (9th Cir. 2014) (holding it was error to
cherry-pick characterizations from medical records to support discrediting
claimant's testimony while ignoring other pertinent medical evidence). It was
also error to seize on Ms. Weber/Sanford's descriptions of Mr. Bormes'
appearance as "normal" or "well groomed" to undermine his credibility. See
Goble v. Astrue, 385 Fed. Appx. 588, 591 (7th Cir. July 14, 2010) (holding to
be "patently wrong" the ALJ's adverse credibility determination based on
medical records describing the claimant as "pleasant, alert and cooperative"
where the medical evidence showed the claimant had undergone lengthy
treatment including taking heavy doses of strong drugs to try to alleviate her
symptoms). See also Minor v. Commissioner of Social Sec., 513 Fed. Appx. 417,
434 (6th Cir. Jan. 24, 2013) (adverse credibility determination by ALJ will not
be upheld on appeal where it is not consistent with the entire record and the
weight of relevant evidence).
Mr. Bormes' Daily Activities Do Not Discredit His
Nor do Mr. Bormes' activities of daily living discredit his testimony as to
the nature and severity of his symptoms. With regard to the factor of a
claimant=s daily activities, the ALJ must consider the Aquality of the daily
activities and the ability to sustain activities, interest, and relate to others over
a period of time and the frequency, appropriateness, and independence of the
activities.@ Wagner, 499 F.3d at 852 (citing Leckenby v. Astrue, 487 F.3d 626,
634 (8th Cir. 2007)) (emphasis in original). Although activities which are
inconsistent with a claimant=s testimony of a disabling condition reflect
negatively on the claimant=s credibility, the ability to do light housework and
occasional visiting with friends does not support a finding that the claimant
can do full-time work in the Acompetitive and stressful conditions in which real
people work in the real world.@ Reed v. Barnhart, 399 F.3d 917, 923 (8th Cir.
2005) (quoting Thomas v. Sullivan, 876 F.2d 666, 669 (8th Cir. 1989)).
Here, there is nothing about Mr. Bormes' activities of daily living that is
inconsistent with his testimony. He testified his infectious diseases and the
medications he takes make him extremely fatigued and confused such that he
has to have a nap every day, sometimes twice a day. The VE testified there
were no jobs available that would allow an employee to take such naps.
Mr. Bormes testified he was confused and in a fog to the extent he was not able
to handle his own financial affairs. The VE testified that there were no jobs
available for someone who was "off task" five to ten percent of the time. Finally,
the medical records are replete with evidence of oozing, bleeding sores that
have resisted cures. The VE testified there were no jobs available for an
employee with an infectious disease such as AIDS and hepatitis who also had
bodily fluids seeping from sores in his body. Just because Mr. Bormes can
spend an hour or two here and there shopping for antiques, caring for his dog,
maintaining his house and his personal hygiene does not discredit the
conditions he asserts to be disabling.
The ALJ cannot simply assert the claimant has "been exercising" or
"doing housework" and hold that this is inconsistent with the claimant's
impairments. Brown v. Commissioner Social Sec. Admin., ___ F.3d ___ 2017
WL 4320263 at *15 (4th Cir. Sept. 17, 2017). Instead, the ALJ must build an
"accurate and logical bridge" from the evidence to his conclusion that the
claimant is not believable. Id. Here, that bridge is lacking. The ALJ never
discusses how Mr. Bormes' activities of daily living are inconsistent with his
testimony that he needs daily naps and has chronic oozing, bleeding sores on
his body along with infectious diseases.
Here, the ALJ failed to discuss Mr. Bormes' AIDS or hepatitis or the
symptoms caused by those diseases, failed to discuss the side effects of his
medications, and failed to discuss the medical evidence from Dr. Singh and
Dr. Shafer. The ALJ's conclusory statement that Mr. Bormes' testimony was
inconsistent with the medical evidence as a whole rings hollow when the ALJ
himself failed to acknowledge the great bulk of the medical evidence. Likewise
the ALJ's statement that Mr. Bormes' daily activities are inconsistent with his
testimony is insufficient without an explanation of how the two are
inconsistent. The court cannot affirm on this record. The court cannot defer
to the Commissioner’s credibility determination because it is not supported by
substantial evidence. Mr. Bormes' credibility should be determined anew upon
Type of Remand
For the reasons discussed above, the Commissioner=s denial of benefits is
not supported by substantial evidence in the record. Mr. Bormes requests
reversal of the Commissioner=s decision with remand and instructions for an
award of benefits, or in the alternative reversal with remand and instructions
to reconsider her case.
42 U.S.C. ' 405(g) governs judicial review of final decisions made by the
Commissioner of the Social Security Administration. It authorizes two types of
remand orders: (1) sentence four remands and (2) sentence six remands. A
sentence four remand authorizes the court to enter a judgment Aaffirming,
modifying, or reversing the decision of the Secretary, with or without
remanding the cause for a rehearing.@ 42 U.S.C. ' 405(g).
A sentence four remand is proper when the district court makes a
substantive ruling regarding the correctness of the Commissioner=s decision
and remands the case in accordance with such ruling. Buckner v. Apfel, 213
F.3d 1006, 1010 (8th Cir. 2000). A sentence six remand is authorized in only
two situations: (1) where the Commissioner requests remand before answering
the Complaint; and (2) where new and material evidence is presented that for
good cause was not presented during the administrative proceedings. Id.
Neither sentence six situation applies here.
A sentence four remand is applicable in this case. Remand with
instructions to award benefits is appropriate Aonly if the record overwhelmingly
supports such a finding.@ Buckner, 213 F.3d at 1011. In the face of a finding
of an improper denial of benefits, but the absence of overwhelming evidence to
support a disability finding by the Court, out of proper deference to the ALJ the
proper course is to remand for further administrative findings. Id., Cox v.
Apfel, 160 F.3d 1203, 1210 (8th Cir. 1998).
In this case, reversal and remand is warranted not because the evidence
is overwhelming, but because the record evidence should be clarified and
properly evaluated. See also Taylor v. Barnhart, 425 F.3d 345, 356 (7th Cir.
2005) (an award of benefits by the court is appropriate only if all factual issues
have been resolved and the record supports a finding of disability). Therefore,
a remand for further administrative proceedings is appropriate.
Based on the foregoing law, administrative record, and analysis, this
ORDERS that the Commissioner=s decision is REVERSED and
REMANDED for reconsideration pursuant to 42 U.S.C. ' 405(g), sentence four.
DATED October 18, 2017.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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