Schulz v. Colvin

Filing 21

ORDER granting in part and denying in part 14 MOTION to Reverse; denying 16 MOTION to Affirm. Signed by Chief Judge Jeffrey L. Viken on 11/13/14. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
CHARLES J. SCHULZ,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

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CIV. 13-5011-JLV

ORDER

INTRODUCTION
Plaintiff Charles Schulz appeals from a decision by the Acting
Commissioner (“Commissioner”) denying plaintiff’s application for social
security disability insurance and supplemental security income, as well as
other associated benefits. (Docket 1). Mr. Schulz seeks an order awarding
benefits, or in the alternative, remanding his case for a new hearing.
(Docket 14). The Commissioner moves to affirm the decision of the
administrative law judge (“ALJ”). (Docket 16).
The parties acknowledge the court has jurisdiction pursuant to
section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). (Dockets 1 at
¶ 1; 9 at ¶ 1). The court entered a briefing schedule requiring the parties to
file a joint statement of material facts (“JSMF”). (Docket 11). The parties
filed their JSMF. (Docket 13).

For the reasons stated below, plaintiff’s motion is granted in part and
denied in part and defendant’s motion is denied.
FACTUAL AND PROCEDURAL HISTORY
The parties JSMF (Docket 13) is incorporated by reference. Further
recitation of salient facts is included in the discussion section of this order.
On February 1, 2010, Mr. Schulz filed an application for disability
insurance benefits asserting an onset of disability date of November 15,
2009. Id. at ¶ 3. On December 13, 2011, the ALJ issued a decision finding
Mr. Schulz was not disabled. (Administrative Record at pp. 11-20,
hereinafter “AR, p. ____”; see also Docket 13 at ¶ 12). On December 5,
2012, the Appeals Council denied Mr. Schulz’s review request. (Docket 13
at ¶ 12). The ALJ’s decision of December 13, 2011, constitutes the final
decision of the Commissioner of the Social Security Administration. (AR,
p. 1). Mr. Schulz timely appeals from that decision.
The issue before the court is whether the ALJ’s decision of December
13, 2011, that Mr. Schulz “has not been under a disability . . . from
November 15, 2009, . . . through [December 13, 2011] . . .” is supported by
substantial evidence on the record as a whole. (AR, p. 20). See also Howard
v. Massanari, 255 F.3d 577, 580 (8th Cir. 2001) (“By statute, the findings of
the Commissioner of Social Security as to any fact, if supported by

2

substantial evidence, shall be conclusive.”) (internal quotation marks and
brackets omitted) (citing 42 U.S.C. § 405(g)).
STANDARD OF REVIEW
The Commissioner’s findings must be upheld if they are supported by
substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Choate v.
Barnhart, 457 F.3d 865, 869 (8th Cir. 2006); Howard, 255 F.3d at 580. The
court reviews the Commissioner’s decision to determine if an error of law
was committed. Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992).
“Substantial evidence is less than a preponderance, but is enough that a
reasonable mind would find it adequate to support the Commissioner’s
conclusion.” Cox v. Barnhart, 471 F.3d 902, 906 (8th Cir. 2006) (internal
citation and quotation marks omitted).
The review of a decision to deny disability benefits is “more than an
examination of the record for the existence of substantial evidence in
support of the Commissioner’s decision . . . [the court must also] take into
account whatever in the record fairly detracts from that decision.” Reed v.
Barnhart, 399 F.3d 917, 920 (8th Cir. 2005) (quoting Haley v. Massanari,
258 F.3d 742, 747 (8th Cir. 2001)).
It is not the role of the court to re-weigh the evidence and, even if
this court would decide the case differently, it cannot reverse the
Commissioner’s decision if that decision is supported by good reason and is

3

based on substantial evidence. Guilliams v. Barnhart, 393 F.3d 798, 801
(8th Cir. 2005). A reviewing court may not reverse the Commissioner’s
decision “ ‘merely because substantial evidence would have supported an
opposite decision.’ ” Reed, 399 F.3d at 920 (quoting Shannon v. Chater, 54
F.3d 484, 486 (8th Cir. 1995)). Issues of law are reviewed de novo with
deference given to the Commissioner’s construction of the Social Security
Act. See Smith, 982 F.2d at 311.
DISCUSSION
Plaintiff challenges the ALJ’s decision on a number of grounds.
Plaintiff claims the ALJ failed to:
1.

Properly develop the record;

2.

Make proper credibility determinations;

3.

Make a proper residual functional capacity
determination; and

4.

Make a proper step four determination.

(Docket 15 at pp. 20-21). Because of the court’s analysis and conclusions
regarding issues 1 and 2, the other issues are not addressed.
1.

THE ALJ FAILED TO PROPERLY DEVELOP THE RECORD
Plaintiff objects to the failure of the ALJ to adequately develop the

record. (Dockets 15 at pp. 21-22 & 25; 18 at pp. 2-3 & 7). Plaintiff argues
“[t]he ALJ’s failure to develop the record was prejudicial because it infected
his credibility and [residual functional capacity [“RFC”] findings . . . and
4

ultimately the decision against the claimant.” (Docket 15 at p. 21). Plaintiff
challenges the ALJ’s development of the record in two principal areas: (1)
failing to obtain the medical records of Dr. Wayne Anderson; and (2) failing
to obtain the records of the South Dakota Retirement System (“SDRS”),
which found Mr. Schulz disabled. (Docket 15 at pp. 21 & 25).
“The differences between courts and agencies are nowhere more
pronounced than in Social Security proceedings. . . . Social Security
proceedings are inquisitorial rather than adversarial. It is the ALJ’s duty to
investigate the facts and develop the arguments both for and against
granting benefits . . . .” Sims v. Apfel, 530 U.S. 103, 110-11 (2000). “The
regulations make this nature of SSA proceedings quite clear. They expressly
provide that the SSA ‘conduct[s] the administrative review process in
an informal, nonadversary manner.’ ” Id. at p. 111 (citing 20 CFR
§ 404.900(b)). “The regulations further make clear that the [Appeals]
Council will ‘evaluate the entire record,’ including ‘new and material
evidence,’ in determining whether to grant review.” Id. (citing 20 CFR
§ 404.970(b)).
“[S]ocial security hearings are non-adversarial. . . . the ALJ bears a
responsibility to develop the record fairly and fully, independent of the
claimant’s burden to press his case.” Snead v. Barnhart, 360 F.3d 834, 838
(8th Cir. 2004). “The ALJ possesses no interest in denying benefits and

5

must act neutrally in developing the record.” Id. (referencing Richardson v.
Perales, 402 U.S. 389, 410 (1971) (“The social security hearing examiner,
furthermore, does not act as counsel. He acts as an examiner charged with
developing the facts.”) (other reference omitted). “[T]he ALJ is not required
to function as the claimant’s substitute counsel, but only to develop a
reasonably complete record.” Clark v. Shalala, 28 F.3d 828, 830-31 (8th
Cir. 1994). “There is no bright line rule indicating when the Commissioner
has or has not adequately developed the record; rather, such an assessment
is made on a case-by-case basis.” Mouser v. Astrue, 545 F.3d 634, 639 (8th
Cir. 2008).
During the administrative hearing, the ALJ and Mr. Schulz discussed
other documentation which may exist. When Mr. Schulz indicated having
seen Rick Ostrander, a vocational disability expert, but not having his
report for the hearing, the ALJ responded “[w]ell the law is not selfeffectuating so . . . if you want I’ll hold the record open if you want to
submit it. . . . Let me put it another way. I’m not going to chase around
looking for your records. If you give me a list of where they are I will get
them or you can get them, it’ll take me a while to get them because I’ve got
to go through the state of South Dakota’s [Disability Determination Services]
to get them.” (Docket 13 at ¶ 29). Because of that statement, Mr. Schulz
volunteered that he would “be more than happy to get them for you.” Id.

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The ALJ then announced he would hold the record open for ten days, but
after that he was leaving for Christmas vacation and wanted to have a
decision entered before the end of the year.1 Id. at ¶ 30.
Dr. Wayne Anderson Records
Mr. Ostrander’s vocational evaluation of Mr. Schulz resulted in a
written report dated October 27, 2010. Id. at ¶ 127. Mr. Ostrander’s report
referenced the medical reports and opinions of Drs. Watt, Lawlor and the
findings of Dr. Wayne Anderson of March 31, 2010. Id. at ¶¶ 130 & 131.
Dr. Anderson concluded Mr. Schulz’s diagnosis included “chronic low back
pain with disc herniation at L5-S1, cervical pain, and left upper extremity
radicular symptoms . . . .” Id. After receiving the vocational evaluation of
Mr. Ostrander, the ALJ did not make a request for Dr. Anderson’s medical
records.
The Commissioner argues Dr. Anderson’s records would have been
repetitive, because “similar reports were contained in the record (see, e.g.,
JSMF ¶112-14 (January 2010 EMG showing ‘chronic bilateral L5
radiculopathy’), JSMF ¶114 (December 2009 lumbar MRI showing
herniation at L5-S1), JSMF ¶116 (Schulz reported ‘50 percent’ of his pain
was in his lumbar spine)).” (Docket 17 at p. 6). Furthermore, the

1

It would appear the ALJ’s urgency to issue a decision was prompted in part
by Mr. Schulz writing to his Senator’s office seeking assistance in getting his
disability claim processed. (Docket 13 at ¶ 10).
7

Commissioner argues the ALJ considered Mr. Ostrander’s report and
plaintiff “fails to identify how the lack of this cumulative report prejudiced
his claim.” Id. The Commissioner’s argument is a less than candid
acknowledgment of the record.
One of Mr. Schulz’s treating physicians, Dr. Watt, reported an EMG
provided electrophysiologic evidence of chronic bilateral L5 radiculopathy.
(Docket 13 at ¶ 114). A lumbar MRI confirmed an L4-L5 disc herniation
without nerve root compression and a larger left L5-S1 herniated disc with a
floating fragment compressing the S1 nerve root. Id. at ¶ 103. These
studies are objective evidence of low back pain. As Mr. Schulz’s pain
management physician, Dr. Lawlor reported Mr. Schulz suffered low back
and leg pain. Id. at ¶ 118.
Left arm radicular symptoms observed by Dr. Anderson are neither
low back nor leg conditions. Dr. Anderson’s records focusing on Mr.
Schulz’s mid-back and arm pain issues are not duplicative of the reports of
the treating physicians. Left arm pain is consistent with Mr. Schulz’s
testimony that he had pain in his low back and between his shoulder
blades, which hurt “24/7, all the time. . . a constant, constant pain and
then depending on what I do I can get like a really sharp, piercing pain.” Id.
at ¶ 17. Mr. Schultz testified the pain between his shoulder blades was on
and off and not dependant on any activity. Id. Mr. Schulz stated his mid-

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back hurt about 45 percent of the time. Id. at ¶ 18. Arm pain also is
consistent with Mrs. Schulz’s observations that her husband suffered arm
spasms and did not cook because arm spasms caused him to drop hot
items or food. Id. at ¶¶ 84 & 85.
The absence of Dr. Anderson’s medical records and report from the
administrative record is not harmless. Whether Dr. Anderson’s opinions
support Mr. Schulz’s treating physicians, identify a separate impingement
issue, or support Mr. and Mrs. Schulz’s credibility cannot be determined on
the present record. “Because this evidence might have altered the outcome
of the disability determination, the ALJ’s failure to elicit it prejudiced
[claimant] in his pursuit of benefits.” Snead, 360 F.3d at 839 (referencing
Shannon, 54 F.3d at 488 (“reversal due to failure to develop the record is
only warranted where such failure is unfair or prejudicial.”).
South Dakota Retirement System
During the administrative hearing, Mr. Schulz testified he had been
accepted for disability benefits by the SDRS but was turned down by
Rehabilitation Services. (Docket 13 at ¶ 28). The award letter from the
SDRS of April 21, 2011, is part of the administrative record. (AR, p. 221).
The documentation supporting the SDRS disability determination is not
part of the administrative record.

9

The Commissioner argues plaintiff “does not identify any evidence
that the ALJ ignored or discounted evidence underlying the South Dakota
Retirement System’s finding.” (Docket 17 at p. 11). The Commissioner
argues plaintiff “cannot establish that the ALJ failed to consider the
underlying evidence.” Id.
The Commissioner’s argument ignores the very nature of the ALJ’s
obligation in this disability proceeding. During the administrative hearing,
the ALJ learned Mr. Schulz was awarded SDRS disability benefits. (Docket
13 at ¶¶ 28 & 134). The ALJ is bound to consider the disability
determination made by the SDRS. 20 CFR § 404.1512(5) (“evidence”
includes the “[d]ecisions by any governmental . . . agency about whether
[the claimant is] disabled . . . .”). See also Morrison v. Apfel, 146 F.3d 625,
628 (8th Cir. 1998) (“[T]he ALJ should have addressed the determination by
the VA that [claimant] is permanently and totally disabled. It is true that
the ALJ does not have to discuss every piece of evidence presented. . . . It is
also true that a disability determination by the VA is not binding on an ALJ
considering a Social Security applicant’s claim for disability benefits. . . . We
think, however, that the VA finding was important enough to deserve
explicit attention.”) (internal citations and quotation marks omitted)
(emphasis added).

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When the ALJ learned the SDRS disability benefits information was
not part of the record, he was obligated to obtain those records. Snead, 360
F.3d at 838. “[T]he ALJ neglected [his] duty to resolve the ambiguity in [the
record] through further inquiry.” Coleman v. Astrue, 498 F.3d 767, 771
(8th Cir. 2007). The ALJ’s failure to develop the record is both unfair and
prejudicial.
The court would remand on this issue alone, but because of the
significance of the plaintiff’s credibility challenge, the court will address
plaintiff’s objections on this issue.
2.

THE ALJ FAILED TO MAKE PROPER CREDIBILITY
DETERMINATIONS
Dr. Brett Lawlor
Dr. Lawlor is a board-certified physiatrist.2 (Docket 13 at ¶ 112). On

January 21, 2010, Dr. Lawlor examined Mr. Schulz and had an EMG study
done for bilateral leg pain and weakness. Id. The EMG disclosed there was
“electrophysiologic evidence of a chronic bilateral L-5 radiculopathies.” Id.
Dr. Lawlor recommended “physical therapy to include ultrasound,
mobilization, stabilization, and modalities for pain control to treat his
discogenic pain and radicular pain.” (AR, pp. 296 & 302). Gabapentin

2

A physiatrist is a physician who specializes in physical medicine and
rehabilitation with the goal of restoring optimal function in patients with
injuries to bones, tissues and muscles. MedicineNet.com.
11

(Neurotin) 50 mg. was prescribed. (AR, p. 296). Mr. Schulz was also
encouraged to use Lidoderm patches and to continue use of an antiinflammatory medication. Id.
When he returned to see Dr. Lawlor on April 22, 2010, Mr. Schulz
reported he had attended physical therapy but did not find it particularly
helpful.3 (Docket 13 at ¶ 118). Dr. Lawlor increased Gabapentin to 300 mg.
per day on a progressive dosage regimen. Id. Dr. Lawlor placed Mr. Schulz
on a 20-pound maximum lifting restriction and indicated “[h]e needs to limit
bending and twisting to occasional, change positions from sitting to
standing and walking every 30 minutes as necessary.” (Docket 13 at ¶ 118).
Mr. Schulz was seen by Dr. Lawlor again on March 10, 2011. Dr.
Lawlor reported Mr. Schulz had no change in his condition, continued to
have daily pain, and was taking Ibuprofen. Id. at ¶ 119. Dr. Lawlor put in
“essentially the same restrictions that I put him on in April [2010] which is
a maximum lift of 20 pounds, changing positions from sitting to standing to
walking every 30 minutes as necessary, and a maximum sitting of 2 1/2
hours in an 8 hour day.” (AR, p. 306).
The ALJ gave Dr. Lawlor’s medical opinions “substantial weight . . .
due to his treating status and because his opinions are generally consistent
with the evidence of record . . . .” (AR, p. 18). The Commissioner

3

The court notes there are no physical therapy documents in the record.
12

acknowledged substantial weight was “given to Dr. Lawlor’s opinion that the
claimant was capable of work involving a lift restriction of 20 pounds,
occasional bending and twisting, and change of position from sitting to
standing and walking every 30 minutes as necessary, and that Schulz could
sit a maximum of two and one-half hours in an eight-hour day.” (Docket 13
at ¶ 59). The ALJ “accorded less weight to Dr. Lawlor’s opinion that the
claimant requires a change of position every 30 minutes and is only able to
sit 2 1/2 hours because this opinion is not supported by the record. []In
fact, the record does not identify any specific reason as to why the claimant
is able to only sit for 2 1/2 hours and/or would need to change positions.”
Id. at ¶ 60. The ALJ’s justification for giving this opinion of Dr. Lawlor less
weight is because “[a]lthough the claimant indicated that he agreed with
these limitation[s] due to leg spasms, the undersigned notes at the hearing
that the claimant testified that in order to alleviate the spasms, he only
need[ed] to massage the area to ‘work’ it out.” Id. The ALJ found Dr.
Lawlor’s “restriction is not warranted based on the claimant’s statements
and a review of the evidence of record as a whole.” (AR, p. 18).
Plaintiff objects to giving less weight to the opinion of Dr. Lawlor
because “[t]he ALJ failed to identify an inconsistency that detracted from the
treating specialist’s opinion, or a better competing opinion, and there was
none.” (Docket 15 at p. 23). Plaintiff argues the medical evidence

13

supported Dr. Lawlor’s restrictions and “it appears that the ALJ
impermissibly substituted his own opinion for the opinion of the treating
specialist.” Id. at p. 24.
At the hearing, Mr. Schulz did not testify massage was successful in
relieving the painful leg cramps he experienced. The transcript of the
hearing discloses the following exchange:
Q.

Do you have any other difficulties from, of a medical nature?

A.

A lot - - the relation with - - because of the nerves that are also
injured in that area I get the, the spasms in my legs, I get awful,
awful painful leg cramps and loss of strength at times.

Q.

How often do you have the cramping?

A.

Every couple of days.

Q.

What do you do to remedy that?

A.

I just try to walk out, you try to massage it and try to work it out.

(AR, pp. 34-35). The ALJ asked no further questions to determine if selfmassage was successful in working out the painful leg cramps.
Rather than adopt Dr. Lawlor’s treating physician opinion of April
2011, the ALJ chose to accept the RFC recommendations of Dr. Kevin
Whittle. (AR, p. 19). Dr. Whittle, a non-examining consultant physician,
reviewed the record and issued a report on November 20, 2010. (Docket 13
at ¶ 122). Dr. Whittle did not complete a physical RFC assessment form,
but rather bootstrapped his opinion to the RFC assessment form completed

14

by another non-examining consultant, Dr. Terry. See AR, pp. 228-35 &
251. Dr. Terry’s evaluation of March 29, 2010, occurred between Dr.
Lawlor’s January and April 2010 examinations of Mr. Schulz. Dr. Whittle’s
record review was conducted before Dr. Lawlor’s modified and more
restrictive directive of April 2011.
Neither Dr. Terry nor Dr. Whittle had access to the complete record.4
“[T]he opinion of a nonexamining consulting physician is afforded less
weight if the consulting physician did not have access to relevant medical
records, including relevant medical records made after the date of
evaluation.” McCoy v. Astrue, 648 F.3d 605, 616 (8th Cir. 2011)
(referencing Wildman v. Astrue, 596 F.3d 959, 968 (8th Cir. 2010) (“The
regulations . . . provide that, when evaluating a nonexamining source’s
opinion, the ALJ ‘evaluate[s] the degree to which these opinions consider all
of the pertinent evidence in [the] claim, including opinions of treating and
other examining sources.’ ”) (referencing 20 CFR §§ 404.1527(d)(3) & (f)).
The non-treating physicians’ assessments “cannot be considered substantial
evidence in the face of the conflicting assessments of a treating physician.”

4

The ALJ wrote he was adopting the opinion of Dr. Stephanie Fuller, giving
the appearance that her opinion, like Dr. Whittle’s opinion, was contrary to Dr.
Lawlor’s opinions. (AR, p. 19). Dr. Fuller is a Ph.D. psychologist and not a
physician. Her opinions were limited to Mr. Schulz’s mental status. (AR, p.
250). Dr. Fuller adopted the psychiatric review technique form completed by
psychologist Dr. Jerry Buchkoski dated April 8, 2010. See AR, pp. 236-49.
15

Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999). It was error for the ALJ
to give weight to the statements of either Dr. Terry or Dr. Whittle knowing
neither of these non-examining sources had access to all the relevant
medical records.
The ALJ questioned Dr. Lawlor’s opinion because “the record does not
identify any specific reason as to why the claimant is able to only sit for 2
1/2 hours and/or would need to change positions.” (AR, p. 18). Dr. Lawlor
had the benefit of the following information which is in the record:
1.

Examination by Dr. Watt:
a.

January 26, 2004:
1.

2.

. . . “traumatic discogenic pain.” Id.;

3.

2.

Mr. Schulz “had received two epidural steroid
injections and had undergone physical therapy [but
felt they] provided no relief.” (Docket 13 at ¶ 105);

Recommended two level fusion at L4-5 and L5-S1.
Id. at ¶ 106;

MRIs:
a.

2002: “L4-L5 central disc herniation without clear
nerve-root compression, and a larger left L5-S1 herniated
disc with a free fragment compressing the S1 nerve root.”
Id. at ¶ 103;

b.

2003: “confirmed the left-side L5-S1 disc herniation with
free fragment.” Id. at ¶ 104.

c.

2009: “focal herniated disk identified at the L5-S1 level
which is a midline disk and slightly effaces both the right
and left Sl nerve roots. Mild protrusion of disk
16

symmetrically is seen at the L4-L5 interspace without any
significant spinal stenosis.” Id. at ¶ 100;
3.

Discography of 2004: “concordant 5/10 pain at L4-5 and
concordant 10/10 pain at L5-Sl.” Id. at ¶ 105;

4.

EMG in 2009: “electrophysiologic evidence of chronic bilateral LS
radiculopathy.” Id. at ¶ 114; and

5.

Examinations by Dr. Lawlor:
a.

January 21, 2010:
1.

“50 percent of his pain was in his back, 50 percent
was leg pain. Pain was unrelated to time of day. He
reported throbbing pain throughout the midline
lumbar spine and bilateral posterior thighs, level
9/10 now, 7/10 at best, and 10/10 at worst. All
movements increased pain.” Id. at ¶ 116;

2.

“Lumbar spine range of motion: Limited throughout,
and he has some discomfort throughout.” (AR, p.
295);

3.

“Inspection of the spine: He has sacral torsion. The
right ilium is anterior. The right leg is shorter due to
this.” Id.;

4.

“Provocative maneuvers: Lumbar spine: Right fabere
caused midline lumbar spine pain. Prone extension
did not change his pain. Reverse straight leg raise
increased midline spine pain.” Id.;

5.

“Straight leg raising: Straight leg raise caused midline
spine pain.” Id.;

6.

“Palpation: He is tender to palpation in the L5
spinous process and the right gluteal muscles.” Id.;

7.

“Diagnoses: . . . L5-S1 disc protrusion . . . Old L5
radiculopathy . . . Back pain and radicular pain.” Id.
at p. 296.
17

b.

April 22, 2010:
1.

2.

Diagnosis: “back pain and radicular pain . . . Disc
protrusion at L5-S1” Id.

3.

c.

On examination “he has focal midline tenderness. He
has bilateral buttock tenderness. Straight leg raising
causes back pain, but no leg pain.” (AR, p. 310);

“He continued to have back and leg pain. He had
been in physical therapy but did not find it
particularly helpful. He had started Gabapentin and
found it somewhat helpful so Dr. Lawlor
recommended he increase the dose from 300 mg.
twice a day to three times a day.” (Docket 13 at
¶ 118); and

March 10, 2011: “He has had no change in his medical
condition. He continues to have daily pain. He takes
Ibuprofen for his pain.” (AR, p. 309).

The ALJ “may not draw upon his own inferences from medical
reports.” Shontos v. Barnhart, 328 F.3d 418, 427 (8th Cir. 2003) (quoting
Lund v. Weinberger, 520 F.2d 782, 785 (8th Cir. 1975). “[T]he ALJ may
reject the opinion of any medical expert where it is inconsistent with the
medical record as a whole.” Finch v. Astrue, 547 F.3d 933, 938 (8th Cir.
2008). There are two recognized requirements to this general rule:
[A]n ALJ’s decision to discount or even disregard the opinion of a
treating physician [may be upheld] (1) where other medical
assessments are supported by better or more thorough medical
evidence, or (2) where a treating physician renders inconsistent
opinions that undermine the credibility of such opinions.

18

Wagner v. Astrue, 499 F.3d 842, 849 (8th Cir. 2007) (internal citation
omitted). “A treating physician’s opinion is 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.’ ”
House v. Astrue, 500 F.3d 741, 744 (8th Cir. 2007) (quoting Reed, 399 F.3d
at 920). See also Medhaug v. Astrue, 578 F.3d 805, 815 (8th Cir. 2009).
The ALJ’s rejection of Dr. Lawlor’s opinion is not supported by the
record. Contrary to the ALJ’s decision, there is substantial medical
evidence to support Dr. Lawlor’s opinion. Dr. Lawlor’s opinions are entitled
to controlling weight. House, supra; Medhaug, supra.
Lynnette Schulz
Mr. Schulz’s wife, Lynnette, completed a third party function report.
(AR, pp. 206-13; see also Docket 13 at ¶¶ 82-91). The AlJ found:
Ms. Schulz’s statements in the report do not establish that the
claimant is disabled since Ms. Shulz is not medically trained to
make exacting observations as to the dates, frequencies, types and
degrees of medical signs and symptoms, or of the frequency or
intensity of unusual moods or mannerisms. Moreover, by virtue
of her relationship as the claimant’s wife, Ms. Schulz cannot be
considered a disinterested third party witness whose testimony
would not tend to be colored by affection for the claimant and a
natural tendency to agree with the symptoms and limitations the
claimant alleges. Most importantly, significant weight cannot be
given to her statements because they, like the claimant's
testimony, is simply not consistent with the evidence of record in
the case.
(AR, pp. 17-18).

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Mr. Schulz objects to the ALJ’s summary dismissal of his wife’s lay
witness report. (Docket 15 at p. 30). He argues it is an abuse of reason to
conclude as a matter of law that a lay witness is not credible because she is
not medically trained. Id. Mr. Schulz argues “[a] lay witness, by definition,
is not medically trained. . . . The ALJ’s disqualification of Schulz’s spouse as
a witness was legal error.” Id. at pp. 30-31. The Commissioner did not
respond to plaintiff’s argument. See Docket 17.
The ALJ has a legal duty to consider lay witness testimony. The
Social Security Regulations specifically address the use of non-medical
sources of information. Those include “spouses, parents and other
caregivers, siblings, other relatives, friends, neighbors, and clergy).” 20 CFR
§ 404.1513(d)(4). The regulations acknowledge subjective pain is “difficult
to quantify . . . [so] symptom-related functional restrictions and limitations
which . . . other persons report, which can reasonably be accepted as
consistent with the objective medical evidence . . . will be taken into
account.” 20 CFR § 404.1529(c)(3).
The United States Court of Appeals for the Eighth Circuit made it
clear lay person statements must be considered by an ALJ when evaluating
a claimant’s subjective pain complaints. Willcockson v. Astrue, 540 F.3d
878, 880-81 (8th Cir. 2008) (referencing Polaski v. Heckler, 739 F.2d 1320,
1322 (8th Cir. 1984)). The ALJ is required to “ ‘carefully consider’ evidence

20

from other persons addressing the extent of the claimant’s pain and how it
affects his . . . ability to function.” Id. at p. 881 (referencing 20 CFR
§ 404.1529(c)(3)). Subjective complaints are difficult to document and
family members “may be the only ones who witness a claimant’s difficulties
. . . .” Id. The Eighth Circuit instructed “the ALJ is of course not required
to accept all lay testimony, we think that it is almost certainly error simply
to ignore it altogether.” Id.
It is important for the ALJ to learn whether the claimant is capable of
performing household chores, “such as cooking, vacuuming, washing
dishes, doing laundry, shopping, driving, and walking . . .” as these
activities would be “inconsistent with subjective complaints of disabling
pain.” Medhaug, 578 F.3d at 817. On the other hand, a lay person’s report
the claimant is no longer capable of performing these household chores
would be evidence of disabling pain. Willcockson, supra; Medhaug, supra.
The inability to perform acts which are consistent with complaints of
disabling pain reflects positively on the complaint’s credibility. See Johnson
v. Apfel, 240 F.3d 1145, 1148 (8th Cir. 2001) (“Acts which are inconsistent
with a claimant’s assertion of disability reflect negatively upon that
claimant’s credibility.”).
Lynette Schulz gave a detailed description of her observations which
need not be repeated here. See Docket 13 at ¶¶ 82-91. Her report disclosed

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not only how her husband’s pain affected his life, but her life as well. The
court finds it is error for the ALJ simply to dismiss Mrs. Schulz’s report as
the product of a sympathetic wife and then summarily reject her testimony
as inconsistent with the remainder of the record.
3.

REMAND OR AWARD BENEFITS
Mr. Schulz opposed remand and asks the court to award benefits.

(Docket 14). The court may affirm, modify, or reverse the Commissioner’s
decision, with or without remand to the Commissioner for a rehearing.
42 U.S.C.§ 405(g). If the court determines that the “record overwhelmingly
supports a disability finding and remand would merely delay the receipt of
benefits to which the plaintiff is entitled, reversal is appropriate.”
Thompson v. Sullivan, 957 F.2d 611, 614 (8th Cir. 1992).
The court finds the administrative record is not yet complete.
Because the court concluded the ALJ erred as a matter of law in evaluating
the opinions of Dr. Lawlor and the testimony of Mrs. Schulz, it is incumbent
upon the ALJ, consistent with this order, to reevaluate the testimony and
credibility of Mr. Schulz. The ALJ then must determine Mr. Schulz’s RFC
consistent with the abilities and limitations reflected in Dr. Lawlor’s
assessment and, through testimony of a vocational expert, establish
whether Mr. Schulz is employable in the national economy. For these
reasons a reversal of the ALJ’s decision and remand to complete the record
is appropriate.
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CONCLUSION
For the reasons stated above, the court finds the ALJ’s decision of
December 13, 2011, and the determination Mr. Schulz is not disabled is not
supported by substantial evidence. 42 U.S.C. § 405(g); Choate, 457 F.3d at
869 (“Substantial evidence is evidence that a reasonable mind would find
adequate to support the decision of the Commissioner.”). As a result, the
court finds the matter must be remanded for further proceedings consistent
with this decision.
ORDER
Based on the above discussion, it is hereby
ORDERED that plaintiff’s motion to reverse the decision of the
Commissioner (Docket 14) is granted in part and denied in part.
IT IS FURTHER ORDERED that the Commissioner’s motion to affirm
the decision of the ALJ (Docket 16) is denied.
IT IS FURTHER ORDERED that, pursuant to sentence four of
42 U.S.C. § 405(g), the case is remanded to the Commissioner for rehearing
consistent with this order.
Dated November 13, 2014.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE

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