Browning v. Colvin

Filing 21

ORDER granting in part and denying in part 15 Motion to Reverse; denying 18 Motion to Affirm. Signed by Chief Judge Jeffrey L. Viken on 9/30/14. (SB)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
MARK R. BROWNING,

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Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

CIV. 13-5038-JLV
ORDER

INTRODUCTION
Plaintiff Mark R. Browning filed a complaint appealing from an
administrative law judge’s (“ALJ”) decision denying disability benefits.
1).

Defendant denies plaintiff is entitled to benefits.

(Docket 7).

(Docket

The court

issued an amended briefing schedule requiring the parties to file a joint
statement of material facts (“JSMF”).
JSMF.

(Docket 14).

(Docket 13).

The parties filed their

For the reasons stated below, plaintiff’s motion to reverse

the decision of the Commissioner of the Social Security Administration (“SSA”)
(Docket 15) is granted in part and denied in part consistent with this order.
Defendant’s motion to affirm the decision of the Commissioner (Docket 18) is
denied.
FACTUAL AND PROCEDURAL HISTORY
The parties’ JSMF (Docket 14) is incorporated by reference.

Further

recitation of salient facts is included in the discussion section of this order.

On June 2, 2010, plaintiff Mark R. Browning applied for social security
disability benefits alleging a disability onset date of September 1, 2006.
(Docket 14 at & 1).

The claim was denied initially on September 3, 2010, and on

reconsideration on December 17, 2010.

(Administrative Record at pp. 83-85,

87-88).1 Mr. Browning filed a request for a hearing on January 28, 2011, and a
hearing was held on November 29, 2011.

(Docket 14 at && 1, 2).

At the

hearing, Mr. Browning amended his disability onset date to September 1, 2007.
Id. at ¶ 2.

On December 13, 2011, the ALJ issued a decision finding Mr.

Browning disabled only from September 1, 2007 to July 20, 2010, and found
that a medical improvement occurred as of the latter date.

Id. at & 3.

The ALJ

subsequently amended his decision on February 28, 2012 and March 27, 2012,
to reflect Mr. Browning’s amended disability onset date, the medical
improvement date and the date on which Mr. Browning’s disability ended.

Id. at

¶ 3; see also AR at p. 23.
On January 13, 2012, Mr. Browning sought review of the ALJ’s amended
decision by the Appeals Council, challenging the finding that a medical
improvement occurred on July 21, 2010.

(Docket 14 at ¶ 4).

2013, the Appeals Council denied the request for review.

Id. at & 4.

decision constitutes the final decision of the Commissioner.
It is from this decision that Mr. Browning timely appeals.

1The

On March 19,
The ALJ’s

(Docket 14 at ¶ 4).

(Docket 1).

court cites to information in the administrative record as “AR at

p. ___.”
2

The issue before the court is whether the ALJ’s decision of December 13,
2011, as amended on February 28, 2012 and March 27, 2012, finding Mr.
Browning was “disabled under sections 216(i) and 223(d) of the Social Security
Act, from September 1, 2007 through July 20, 2010” is supported by the
substantial evidence on the record as a whole.

(AR at p. 38); 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 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) (citation and internal 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

3

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 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)).
DISCUSSION
“Disability” is defined as the inability “to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment [or combination of impairments] 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. ' 1382c(a)(3)(A).

The SSA established a five-step sequential evaluation process for
determining whether an individual is disabled.

20 CFR § 404.1520(a)(4).

If the

ALJ determines a claimant is not disabled at any step of the process, the
evaluation does not proceed to the next step as the claimant is not disabled.
The five-step sequential evaluation process is:
(1) whether the claimant is presently engaged in a “substantial
gainful activity”; (2) whether the claimant has a severe
4

Id.

impairment—one that significantly limits the claimant’s physical or
mental ability to perform basic work activities; (3) whether the
claimant has an impairment that meets or equals a presumptively
disabling impairment listed in the regulations (if so, the claimant is
disabled without regard to age, education, and work experience);
(4) whether the claimant has the residual functional capacity to
perform . . . past relevant work; and (5) if the claimant cannot
perform the past work, the burden shifts to the Commissioner to
prove that there are other jobs in the national economy that the
claimant can perform.
Baker v. Apfel, 159 F.3d 1140, 1143-44 (8th Cir. 1998) (citing Kelley v. Callahan,
133 F.3d 583, 587-88 (8th Cir. 1987)).
The ALJ applied the five-step sequential evaluation required by the SSA’s
regulations.

(AR at pp. 34-35).

At the conclusion of the five-step process, the

ALJ found “[t]he claimant was under a disability, as defined by the Social
Security Act, from September 1, 2007 through July 20, 2010.”

(AR at p. 35)

(citations omitted).
The SSA established an eight-step sequential review process for
determining whether a claimant’s disability has ceased. 20 CFR § 404.1594(f).
“The regulations for determining whether a claimant's disability has ceased may
involve up to eight steps.” Dixon v. Barnhart, 324 F.3d 997, 1000 (8th Cir.
2003). The eight steps are:
(1) whether the claimant is currently engaging in substantial gainful
activity, (2) if not, whether the disability continues because the
claimant’s impairments meet or equal the severity of a listed
impairment, (3) whether there has been a medical improvement,
(4) if there has been medical improvement, whether it is related to
the claimant’s ability to work, (5) if there has been no medical
improvement or if the medical improvement is not related to the
claimant’s ability to work, whether any exception to medical
improvement applies, (6) if there is medical improvement and it is
5

shown to be related to the claimant’s ability to work, whether all of
the claimant’s current impairments in combination are severe, (7) if
the current impairment or combination of impairments is severe,
whether the claimant has the residual functional capacity to
perform any of his past relevant work activity, and (8) if the claimant
is unable to do work performed in the past, whether the claimant
can perform other work.
Id. at 1000-01 (citing 20 CFR § 404.1594(f)); see also Wilson v. Astrue, No.
4:09cv1468 TCM, 2011 WL 903084, at *11 (E.D. Mo. Mar. 15, 2011).
“To discontinue a claimant’s benefits because his or her medical condition
has improved, the Commissioner must ‘demonstrate that the conditions which
previously rendered the claimant disabled have ameliorated, and that the
improvement in the physical condition is related to claimant’s ability to work.’ ”
Muncy v. Apfel, 247 F.3d 728, 734 (8th Cir. 2001) (citing Nelson v. Sullivan, 946
F.2d 1314, 1315 (8th Cir.1991) (citing 20 CFR § 404.1594(b)(2)-(5)). The Social
Security regulations define a medical improvement as:
[a]ny decrease in the medical severity of [a claimant’s] impairment(s)
which was present at the time of the most recent favorable medical
decision that [the claimant] [was] disabled or continued to be
disabled. A determination that there has been a decrease in
medical severity must be based on changes (improvement) in the
symptoms, signs and/or laboratory findings associated with [the
claimant’s] impairment(s).
Wilson, 2011 WL 903084, at *11 (quoting 20 CFR § 416.994(b)(1)(I)).
A “[m]edical improvement can be found in cases involving the
improvement of a single impairment if that improvement increases the claimant’s
overall ability to perform work related functions.” Id. (citing 20 CFR
§ 416.994(c)(2)). “Whether a claimant’s condition has improved is primarily a

6

question for the trier of fact, generally determined by assessing witnesses’
credibility.” Muncy, 247 F.3d at 734 (citing Nelson, 946 F.2d at 1316).
In step three of determining whether Mr. Browning’s disability continued
through the date of his decision, the ALJ found there had been a medical
improvement increasing Mr. Browning’s residual functional capacity (“RFC”).
(AR at p. 36).

In step eight of the evaluation, in light of the medical

improvement, the ALJ found there were jobs that existed in significant numbers
in the national economy that Mr. Browning could perform, and he was, therefore,
no longer disabled.
A.

Id. at 37.

PLAINTIFF’S ISSUES ON APPEAL
Mr. Browning identifies the following issues: (1) the ALJ erred by finding

there was a medical improvement and failed to follow the treating physician rule;
(2) the ALJ failed to properly evaluate Mr. Browning’s credibility; and (3) the ALJ
relied on flawed vocational expert testimony.
turn.

The court discusses each issue in

(Docket 15-2)
1.

Whether the ALJ Properly Found a Medical Improvement

The ALJ found that Dr. Steven Frost’s opinions “appear[ed] to be based on
the claimant’s subjective complaints, as [Mr. Browning’s] treatment records . . .
do not support such extreme limitations.”

(AR at p. 37).

Mr. Browning argues

the ALJ failed to properly evaluate Dr. Frost’s credibility in reaching the
conclusion that a medical improvement occurred because Dr. Frost’s opinions,
as Mr. Browning’s treating physician, are entitled to controlling weight or, in the

7

alternative, “the greatest weight.”

(Docket 15-2 at p. 4).

Defendant contends

the ALJ reasonably considered Dr. Frost’s credibility in light of inconsistencies
between Dr. Frost’s opinions and his treatment notes and the substantial
evidence in the record. (Docket 19 at pp. 4-9). The court finds the ALJ’s
determination that Dr. Frost’s opinions were not entitled to controlling weight is
supported by substantial evidence.
(8th Cir. 2000).

Prosch v. Apfel, 201 F.3d 1010, 1013-14

However, the court finds the ALJ erred by failing to consider all

of the factors enumerated in 20 CFR §§ 404.1527(c) and 416.927(c) and thus, did
not conduct a proper analysis of the weight accorded to Dr. Frost’s opinions.
a.

Dr. Frost’s Opinions Are Not Entitled to Controlling Weight

“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) (citation and internal quotation
marks omitted).

However, “while entitled to special weight, it does not

automatically control, particularly if the treating physician evidence is itself
inconsistent.”

Id. (citations and internal quotation marks omitted).

“It is well

established that an ALJ may grant less weight to a treating physician’s opinion
when that opinion conflicts with other substantial medical evidence contained
within the record.”

Prosch, 201 F.3d at 1013-14.

Therefore, the ALJ must

“give good reasons for discounting a treating physician’s opinion.”
Barnhart, 308 F.3d 876, 878-79 (8th Cir. 2002).

8

Dolph v.

In this case, Dr. Frost was Mr. Browning’s treating physician.
pp. 37, 985-1003).

(AR at

Mr. Browning was transferred to Dr. Frost’s care on May 27,

2010, due to Mr. Browning moving to South Dakota. Id. at 737. Dr. Frost is a
pain management specialist. (Docket 14 at ¶ 34). Dr. Frost or a member of
Rapid City Regional Pain Management examined Mr. Browning on at least four
separate occasions during the four-month period immediately preceding Dr.
Frost’s completion of the Multiple Impairment Questionnaire (“Questionnaire”)
relied upon by the ALJ in assessing Dr. Frost’s findings. (AR at pp. 977-84,
986-1002).
Dr. Frost’s treatment notes indicate he based his assessment of Mr.
Browning’s physical capacity, in part, on Mr. Browning’s explanation of the
location and intensity of his pain.

See Id. 985-1003.

However, Dr. Frost also

based his opinions on the positive clinical findings of pain on palpation, pain at
ten degrees of flexion of the lumbar spine and pain at five degrees of extension of
the lumbar spine. (Docket 14 at ¶ 46); see also AR at p. 977. Dr. Frost
indicated his opinions were based on Magnetic Resonance Imaging (“MRI”)
showing degenerative joint disease at L2-L3 and L4-L5 and at the fusion between
L3 and L4. (Docket 14 at ¶ 46); see also AR at p. 978.
In the Questionnaire, Dr. Frost opined Mr. Browning’s pain was normally
at a level 6/10 when not fatigued and a level 7/10 when fatigued. (AR at
p. 979).

Dr. Frost opined Mr. Browning only could sit for 0-1 hour and

stand/walk for 0-1 hour in an eight-hour day. Id. Dr. Frost noted that Mr.

9

Browning needs to get up and move around every thirty minutes and must wait
thirty minutes after getting up before sitting down again. Id. at 979-80. Dr.
Frost opined Mr. Browning could lift and carry 0-5 pounds frequently, 5-10
pounds occasionally and never lift or carry anything in excess of 10 pounds. Id.
at 980. Mr. Browning’s ability to grasp, turn or twist objects was moderately
impaired. Id. Mr. Browning’s ability to use his fingers and hands for fine
manipulation was minimally impaired. Id. at 981. Dr. Frost opined Mr.
Browning’s ability to use his arms for reaching, including overhead, was
moderately impaired. Id.
Dr. Frost opined Mr. Browning’s symptoms would increase if he was
placed in a competitive work environment, and Mr. Browning would not be able
to perform a full-time competitive job. Id. 981-82. Dr. Frost estimated Mr.
Browning likely would be absent from work more than three times a month as a
result of his impairments and treatment. Mr. Browning would have “good days
and bad days.” Id. at 983. Finally, Dr. Frost opined Mr. Browning suffered
symptoms of pain and/or fatigue frequently. Id. at 982.
Central to the ALJ’s decision to give little weight to Dr. Frost’s opinions is
the conflicting information contained in a functional capacity evaluation of Mr.
Browning performed by occupational therapist Kathleen Boyle, OT/L.
773-814.

See Id. at

Ms. Boyle’s four-hour evaluation of Mr. Browning included an

interview, a muscoskeletal examination and a work capacity evaluation.
(Docket 14 at ¶ 58). Neither party disputes the methods employed or the

10

thoroughness of Ms. Boyle’s evaluation. Ms. Boyle found “Mr. Browning put
forth maximum voluntary effort during testing and verified the validity of the
results with computer analysis.” Id. at ¶ 60. In her evaluation, Ms. Boyle
opined:
[Mr. Browning] tolerates sitting frequently for 60 minute intervals (4
hours per day). Dynamic standing is tolerated frequently for 45
minute intervals (3 hours per day), and static standing is poorly
tolerated for 15 minute intervals (1 hour/day). Frequent weight
shifting, compensatory posturing to take pressure off of his low back
by leaning forward, and alternating between sitting and standing is
noted throughout this evaluation.
(AR at p. 782).
Ms. Boyle further opined: Mr. Browning could frequently squat, reach at
or above shoulder level, kneel, climb stairs, and lift; Mr. Browning could
infrequently stoop/bend and crawl; Mr. Browning could rarely balance and
climb a ladder; and Mr. Browning could never crouch. Id. at 776-77.
Ms. Boyle determined Mr. Browning could, depending on the type of exercise, lift
eight to eighteen pounds occasionally, five to sixteen pounds frequently, and
could lift and carry eighteen pounds for up to fifty feet. Id. at 777. Finally, Ms.
Boyle reported Mr. Browning could repetitively operate foot and hand controls
and repetitively engage in fine manipulation with his hands.2 Id. at 778.
During the evaluation, Mr. Browning “reported that his pain was 7/10 in
his lumbar spine and down his right leg.” (Docket 14 at ¶ 59). Ms. Boyle stated

2The

ALJ adopted Ms. Boyle’s findings in reaching his determination of Mr.
Browning’s RFC. See AR at p. 36.
11

that “she did not observe pain at this level throughout Mr. Browning’s
evaluation,” as pain at that level “is described as severely disabling and would
not allow a person to move or use the painful area, requiring a person to lie down;
a person would have difficulty concentrating on anything but pain at this level,
and pain-related tearfulness is common at this level of pain.” Id. (internal
quotation marks omitted).
Dr. Frost’s and Ms. Boyle’s opinions regarding the extent of Mr. Browning’s
disability are markedly different. For example, Ms. Boyle believes Mr. Browning
can continuously work eight-hour days consisting of sitting for four hours per
day in sixty minute intervals and dynamically and statically stand for four hours
per day in forty-five and fifteen minute intervals, respectively. Conversely, Dr.
Frost believes Mr. Browning can only sit for 0-1 hour and stand/walk for 0-1
hour in an eight-hour work day. Both opinions are well reasoned and, as is
discussed more thoroughly below, both find support in portions of Dr. Frost’s
treatment notes. Therefore, the court finds the ALJ properly considered both
Ms. Boyle’s and Dr. Frost’s inconsistent opinions. See Prosch, 201 F.3d at
1013-14.

The ALJ’s decision not to give Dr. Frost’s opinions controlling

authority is supported by substantial evidence.
b.

The ALJ Improperly Disregarded Dr. Frost’s Opinions

As a general rule, “[a] treating physician’s opinion should not ordinarily be
disregarded and is entitled to substantial weight.” Singh v. Apfel, 222 F.3d 448,
452 (8th Cir. 2000) (citing Ghant v. Bowen, 930 F.2d 633, 639 (8th Cir. 1991);

12

see also Shontos v. Barnhart, 328 F.3d 418, 426 (8th Cir. 2003) (“Generally,
more weight is given to opinions of sources who have treated a claimant, and to
those who are treating sources.”). Id. at 426. The SSA regulations provide
“ ‘[w]hen the treating source has seen you a number of times and long enough to
have obtained a longitudinal picture of your impairment, we will give the source’s
opinion more weight than we would give it if it were from a nontreating source.’ ”
Shontos, 328 F.3d at 426 (quoting 20 CFR § 404.1527(d)(2)(i)). “By contrast,
‘[t]he opinion of a consulting physician who examines a claimant once or not at
all does not generally constitute substantial evidence.’ ” Singh, 222 F.3d at 452
(citing Kelley, 133 F.3d at 589).
An ALJ may nonetheless “grant less weight to a treating physician’s
opinion when that opinion conflicts with other substantial medical evidence
contained within the record.” Prosch, 201 F.3d at 1013-14 (citing Haggard v.
Apfel, 175 F.3d 591, 595 (8th Cir. 1999); Rogers v. Chater, 118 F.3d 600, 602
(8th Cir. 1997)). “[A]n ALJ may credit other medical evaluations over that of the
treating physician when such other assessments ‘are supported by better or
more thorough medical evidence.’ ” Prosch, 201 F.3d at 1014 (quoting Rogers,
118 F.3d at 602) (citing Pena v. Chater, 76 F.3d 906, 908 (8th Cir. 1996); Ward v.
Heckler, 786 F.2d 844, 846-47 (8th Cir. 1986)).
As indicated above, Dr. Frost’s opinions regarding the extent Mr.
Browning’s disability prohibits him from working is in conflict with Ms. Boyle’s
assessment. The court now examines Mr. Browning’s treatment notes and

13

other evidence contained in the record as a whole in its review of the ALJ’s
determination to give little weight to Dr. Frost’s opinions.
i.

Dr. Frost’s Opinions Were Not Based Entirely on Mr.
Browning’s Subjective Complaints

Dr. Frost’s treatment records are not based entirely on Mr. Browning’s
subjective complaints. To be sure, the treatment records maintained by
Dr. Frost and the other pain management doctors at Rapid City Regional Pain
Management indicate that the examining doctors relied, in part, on
Mr. Browning’s subjective complaints of pain in his lower back. But Mr.
Browning’s medical history and the posture of his current course of treatment
and prior surgeries cannot be ignored. A brief recitation of Mr. Browning’s
medical history is helpful.
On September 7, 2007, a lumbar Computerized Tomography (“CT”)
myelogram “revealed a mild broad-based disc protrusion at L3-L4 and L4-L5
with mild central spinal stenosis at L4-L5, mild facet joint hypertrophy from L3
through S1, and incidental limbus vertebrae at L4. (Docket 14 at ¶ 7). On
January 7, 2008, after an epidural injection failed to relieve his pain, Mr.
Browning underwent a posterior lumbar interbody fusion at L3-L4. Id. ¶ 11-12.
“The surgery involved implantation of rods and screws into his back and an iliac
crest bone graft.” Id. at ¶ 12. Following surgery, Dr. Simpson, Mr. Browning’s
treating physician at the time, diagnosed Mr. Browning’s condition as
“degenerative disc disease and internal disc disruption at L3-L4, back pain,
lower extremity pain, and lumbar radiculopathy.” Id. By June 24, 2008, Mr.
14

Browning’s condition had deteriorated enough that a second lumbar myelogram
was performed. It “showed post-surgical changes at L3-L4 since September 7,
2007, including partial laminectomy, a left thecal sac defect at L3-L4 ‘suggesting
new herniation more pronounced than’ in September 2007, a broad-based disc
protrusion at L4-L5, and facet hypertrophy from L3 through S1.” Id. at ¶ 16
(quoting AR at p. 529).
On October 3, 2008, following a CT scan of his L3-L4 vertebrae and a
lumbar spine MRI indicating failed laminectomy syndrome (a painful buildup of
scar tissue following a laminectomy), Mr. Browning underwent a right L3-L4
hardware injection to relieve pain caused by the rods and screws in his back,
stenosis and degenerative changes at L4-L5. (Docket 14 at ¶¶ 21-22). On
January 26, 2009, Mr. Browning underwent an anterior-approach revision
fusion spinal surgery whereby “[t]he surgical hardware from his first surgery was
removed and replaced, and the L3-L4 vertebrae were fused with a synthetic
spacer.” Id. at ¶ 26. On October 16, 2009, after Mr. Browning reported his
pain was worsening, “[a] lumbar spine CT scan . . . revealed a mild broad-based
disc bulge at L2-L3 with associated mild ligamentum flavum hypertrophy and
lateral recess narrowing, and a mild broad-based disc bulge at L4-L5.” Id. at
¶ 31.
On May 27, 2010, Dr. Simpson concurred with Dr. Rand Schleusener that
Mr. Browning had a “solidly fused spine at L3-L4 but with degenerative changes
both above and below that level.” Both physicians recommended no further

15

surgical intervention and a focus on pain management. Id. at ¶ 35 (citing AR at
p. 737). Also on May 27, 2010, Mr. Browning’s care was transferred to Dr.
Frost. (AR at p. 737). On June 2, 2010, Mr. Browning completed a functional
progress questionnaire indicating he had pain in his lower back and right leg.
Id. at 892. Mr. Browning further indicated his pain ranged from a level 5/10 to
a level 8/10, and it moderately disturbed his sleep. Id. Dr. Nesbit, the
examining physician, diagnosed Mr. Browning with post-laminectomy syndrome
and chronic low back pain. (Docket 14 at ¶ 36). Dr. Nesbit noted Mr.
Browning “exhibited paravertebral tenderness in the lumbar spine, negative
straight leg raising bilaterally, increased pain with lateral bending, no pain with
flexion or extension, no motor or sensory deficits, and an antalgic gait with full
(5/5) strength in both legs, and no motor or sensory deficits.” Id.
On June 25 and July 29, 2010, Dr. Nesbit performed nerve block
injections at Mr. Browning’s L2, L3 and L4 vertebrae. Id. at ¶ 37. Mr.
Browning reported the nerve blocks provided relief for only two weeks. Id. at
¶ 38. On October 21, 2010, Dr. Frost performed a nerve branch facet rhizotomy
at Mr. Browning’s L2, L3 and L4 vertebrae, which at the time Mr. Browning
reported resulted in a fifty percent reduction in his pain. Id. at ¶ 39. On
September 20, 2011, Mr. Browning began a new course of physical therapy.
The therapist assessed his rehabilitation potential as “[g[ood for lumbopelvic
stabilization, poor for significant pain improvement.” Id. at ¶ 43. On
November 17, 2011, Dr. Frost diagnosed Mr. Browning with post-laminectomy

16

lumbar syndrome at L3-L4 and lumbar facet syndrome. Id. at ¶ 46. Dr. Frost’s
assessment was based on his “clinical findings of pain on palpation, pain at 10
degrees of flexion and at 5 degrees of extension of the lumbar spine, and MRIs
showing degenerative joint disease at L2-L3 and L4-L5, with L3-L4 fused.” Id.
The court’s recitation of Mr. Browning’s past diagnoses, surgeries and
examinations demonstrates Mr. Browning’s back condition was the subject of
extensive diagnostic testing and clinical evaluations. Much of this information
was known and available to Dr. Frost when Mr. Browning was transferred to his
care. Moreover, in his November 17, 2011 treatment notes, Dr. Frost indicated
he had considered Mr. Browning’s MRIs and X-rays, past medical records, pain
diary, past surgeries, list of medical conditions, medication list and medication
summary. (AR at pp. 986-87).
Mr. Browning’s medical history contains many findings and diagnoses by
his treatment providers regarding the source, extent and duration of Mr.
Browning’s pain, all of which Dr. Frost considered in reaching his assessment of
Mr. Browning’s physical capacity. Mr. Browning’s treatment notes while under
the care of Dr. Frost cannot be evaluated without reference to the findings
contained in Mr. Browning’s extensive medical history.
Dr. Frost also performed his own clinical examination of Mr. Browning.
(Docket 14 at ¶ 46). Dr. Frost’s diagnosis of the cause of Mr. Browning’s pain
was consistent with that of Dr. Simpson, Dr. Schleusener and Dr. Nesbit.
(Docket 14 at ¶¶ 35-36). It is clear that Dr. Frost relied on his own clinical

17

findings and testing and considered Mr. Browning’s medical history in reaching
his opinions. Id. at ¶ 46; see also AR at pp. 986-87. Dr. Frost’s opinions were
not based entirely on Mr. Browning’s subjective complaints, are supported by
objective findings and are consistent with Mr. Browning’s prior medical history.
See 20 CFR § 404.1527(c)(3) and (c)(4). Accordingly, the ALJ should have given
more weight to the opinions of Dr. Frost. See Singh, 222 F.3d at 452.
ii.

The ALJ Failed To Consider All of the Section
404.1527(c) Factors

The United States Court of Appeals for the Eighth Circuit held if the
treating physician’s opinion is not given controlling weight under 20 CFR
' 404.1527(c)(2), it must be weighed considering the factors in 20 CFR
'' 404.1527(c)(2)-(6).

See Shontos, 328 F.3d at 426 (citing 20 CFR

§ 404.1527(d)) (“The amount of weight given to a medical opinion is to be
governed by a number of factors including the examining relationship, the
treatment relationship, consistency, specialization, and other factors.”).
“Unless we [the SSA] give a treating source’s opinion controlling weight . . . we
consider all of the following factors in deciding the weight we give to any medical
opinion.” 20 CFR § 404.1527(c) (emphasis added); see also 20 CFR § 416.927(c)
(applying the same language referenced in 20 CFR 404.1527(c)). The factors an
ALJ must consider in determining the weight to assign a treating physician’s
opinions are: the physician’s examining relationship with the claimant; the
physician’s treatment relationship with the claimant, including the length of the
relationship and the nature and extent of the relationship; the supportability of
18

the opinion; the consistency of the opinion; the degree to which the physician is
a specialist in the area; and other relevant factors. See Shontos, 328 F.3d at
426; 20 CFR 404.1527(c) and 416.927(c); see also Titles II & XVI: Giving
Controlling Weight to Treating Source Med. Opinions, SSR 96-2P (S.S.A July 2,
1996).
Here the ALJ provided only a cursory statement discrediting Dr. Frost’s
opinions because they “appeare[ed] to be based on [Mr. Browning’s] subjective
complaint, as treatment records . . . do not support such extreme limitations.”
(AR at p. 37). The government subsequently attempted to support the ALJ’s
finding by asserting Dr. Frost’s opinions are unsupported by his treatment notes
and are inconsistent with the record as a whole, referencing 20 CFR
§§ 404.1527(c)(3) and 404.1527(c)(4), respectively. (Docket 19 at pp. 6-9).
The ALJ cannot simply pick and choose which section 404.1527(c) factors
apply in determining whether to credit the opinion of a treating physician. The
ALJ must consider all of the factors. In this case, the ALJ gave no indication he
considered several of the factors. For example, Dr. Frost has been Mr.
Browning’s treating physician since May 27, 2010. (AR at p. 737). Dr. Frost is
a board-eligible physician in the field of pain management.3 Dr. Frost treated
Mr. Browning for a disabling musculoskeletal condition which included
degenerative disc disease of the lumbar spine, post-laminectomy syndrome,
bilateral lower extremity radiculitis, and chronic low back pain. (Docket 14 at
3REGIONAL

HEALTH, http://www.regionalhealth.com/Our-Doctors/Find-aDoctor/F/Steven-G-Frost-MD.aspx (last visited Sept. 10, 2014).
19

¶ 51). Dr. Frost’s diagnosis of Mr. Browning’s underlying condition—a
condition the ALJ already found to constitute a disability—is consistent with Mr.
Browning’s prior medical history and the opinions of doctors Simpson,
Schleusener and Nesbit. (AR at p. 35). The ALJ must consider Dr. Frost’s
opinions in light of all of the section 404.1527(c) factors.
iii.

Dr. Frost’s Treatment Notes and the Record as a
Whole

With regard to the government’s assertion that Dr. Frost’s opinions are not
supported by his treatment notes and are inconsistent with the record as a
whole, (Docket 19 at p. 6-9) (citing 20 CFR §§ 404.1527(c)(3) and (c)(4)), this
argument misses the mark for the reasons set forth in the preceding section.
See supra. The ALJ must consider all of the section 404.1527(c) factors.
20 CFR § 404.1527(c). Mr. Browning’s treatment records while at Rapid City
Regional Pain Management highlight the pitfalls of considering only one factor in
isolation.
The treatment records maintained by Dr. Frost and his colleagues at Rapid
City Regional Pain Management must be viewed in light of Mr. Browning’s typical
response to treatment. Mr. Browning’s response to treatment is characterized
by the alleviation of his pain at the outset followed by his body growing tolerant
to the treatment and his pain returning. See Docket 14 at ¶ 38 (the nerve block
provided pain relief for only two weeks); Docket 14 at ¶ 40 (the nerve branch facet
rhizotomy initially reduced Mr. Browning’s pain by 50 percent, but by November
17, 2011, his pain returned to the 5/10 to 8/10 level (AR at p. 986)); (AR at p.
20

1070) (Mr. Browning became tolerant to the spinal cord stimulator and his
chronic back pain continued); Docket 14 at ¶¶ 48, 49, 52 (documenting Mr.
Browning’s three epidural injections). The court also notes Mr. Browning’s pain
has always been between a level 4/10 and a level 8/10, see, e.g., AR. at pp. 986,
990, 995, 999, and Dr. Frost opined Mr. Browning has “good days” and “bad
days.” Id. at p. 983.
The treatment notes documenting Mr. Browning’s August 1, 2011,
September 9, 2011, October 21, 2011, and November 17, 2011, visits to the
Rapid City Regional Pain Management confirm both Mr. Browning’s
improvements and setbacks. On August 1, 2011, Mr. Browning completed a
functional progress questionnaire indicating “moderate impairments in walking,
climbing stairs, and driving, [and] ‘great difficulty’ with sitting and sleeping and
an inability to work.” (Docket 14 at ¶ 41). Also on August 1, 2011, Dr. Frost
noted swelling in Mr. Browning’s lumbar spine. (AR at p. 1000).
On September 9, 2011, Mr. Browning reported that he was “able to sweep,
vacuum, and wash dishes. . . . his mood was better, as was his sleep, he could
ride in a car for longer, and he could stay in bed all night.” (Docket 14 at ¶ 42).
A functional progress questionnaire indicated Mr. Browning had no more than
moderate impairments in climbing stairs, driving, sitting, sleeping, walking and
working. Id.
On October 21, 2011, Mr. Browning reported pain relief from a massage
lasted only half an hour, he had trouble sleeping, and his pain was a “constant”

21

6/10 to 7/10. Id. at ¶¶ 39, 44. However, Mr. Browning also reported he was
independent in his activities of daily living. A functional progress questionnaire
indicated his ability to climb stairs, drive, sit, walk and work were only
moderately impaired. Id. at ¶ 44.
On November 17, 2011, Mr. Browning reported he was independent in his
daily activities, but his sleep was interrupted. Id. at ¶ 45. Mr. Browning’s
lower back was tender and the strength in his lower body was 4/5, while it was
5/5 in his upper body. Id. Mr. Browning favored his left side while he walked.
Id. A functional progress questionnaire again indicated Mr. Browning’s ability
to climb stairs, drive, sit, sleep, walk and work were only moderately impaired.
Id.
In the November 17 questionnaire, Dr. Frost opined Mr. Browning’s pain
level is normally at a level of 6/10 and a level of 7/10 when fatigued, which is
within the range documented in his treatment notes and is also in agreement
with Mr. Browning’s assertion his pain was at a level 7/10 during his evaluation
with Ms. Boyle. Compare AR at pp. 979, 986, 990, 995, 999, with AR at p. 775.
At times Mr. Browning demonstrated improvement in his functional
capacity and was able to perform life’s daily activities with only moderate
impairment. At other times, Mr. Browning’s back was swelling, he was unable
to sleep and he was in constant pain. Dr. Frost’s treatment notes support his
opinion that Mr. Browning has good and bad days with respect to his ability to
cope with pain. This variation is the reason Mr. Browning’s treatment notes,

22

while at Rapid City Regional Pain Management, are but one factor the ALJ must
consider in determining the weight to give Dr. Frost’s opinions.
As noted above, the ALJ cannot pick and choose which factors to apply.
All of the factors must be considered and weighed against the others. This is
particularly true where portions of the same treatment notes lend support to the
conflicting medical opinions of Dr. Frost and Ms. Boyle. The ALJ failed to
properly consider all of the factors in reaching his decision to discount Dr. Frost’s
opinions and entirely credit the opinions of Ms. Boyle. The ALJ must reconsider
the weight given to Dr. Frost’s opinions in light of this analysis.
2.

Mr. Browning’s Credibility
a.

Mr. Browning’s Statements and Daily Activities

The ALJ determines the weight attributable to a claimant’s subjective
complaints, including pain, according to the framework created in Polaski v.
Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). Five Polaski factors guide the
ALJ’s credibility determination: “1) the claimant’s daily activities; 2) the
duration, frequency, and intensity of the pain; 3) the dosage, effectiveness, and
side effects of medication; 4) precipitating and aggravating factors; and
5) functional restrictions.” Choate, 457 F.3d at 871. The ALJ need not
mechanically discuss each of the Polaski factors. See Goff v. Barnhart, 421
F.3d 785, 791 (8th Cir. 2005). Although the ALJ can discount a claimant=s
subjective complaints for inconsistencies within the record as a whole, “the ALJ
must make express credibility findings and explain the record inconsistencies

23

that support those findings.” Dolph, 308 F.3d at 879. The court will not
disturb the decision of an ALJ who seriously considers but for good reason
expressly discredits a claimant=s subjective complaints. See Haggard, 175 F.3d
at 594.
In assessing Mr. Browning’s credibility, the ALJ found Mr. Browning’s
“medically determinable impairments could reasonably be expected to produce
the alleged symptoms; however, [Mr. Browning’s] statements concerning the
intensity, persistence and limiting effects of these symptoms are not credible
beginning July 21, 2011, to the extent they are inconsistent with the residual
functional capacity assessment.” (AR at p. 36). The ALJ’s determination that
Mr. Browning’s statements are not credible beginning July 21, 2011, is not
supported by substantial evidence. A review of those inconsistencies proves the
point.
The ALJ noted that no further surgery was recommended for Mr.
Browning. Id. However, Mr. Browning’s underlying diagnosis had not
changed. Following his January 7, 2008, surgery, Dr. Simpson diagnosed Mr.
Browning with degenerative disc disease. (Docket 14 at ¶ 12). A September
18, 2008, MRI revealed Mr. Browning also suffered from failed laminectomy
syndrome. Id. at ¶ 19. Dr. Frost diagnosed and treated Mr. Browning for
degenerative disc disease of the lumbar spine, post-laminectomy syndrome,
bilateral lower extremity radiculitis and chronic low back pain. Id. at ¶ 51.
Although surgical intervention was no longer recommended, Mr. Browning’s

24

diagnosis remained the same—only the type of treatment he received was
altered. The fact that no further surgery was recommended is not inconsistent
with Mr. Browning’s diagnoses or reported pain.
The ALJ noted Mr. Browning reported his sleep and mood had improved
and he was able to bend over easier. (AR at p. 36). The ALJ further noted Mr.
Browning reported partaking in the significant activities of daily living, including
“doing dishes, laundry, vacuuming, cooking, getting groceries, driving a car and
a motorcycle,” and Mr. Browning enjoyed gardening, reading and caring for his
pets. Id. However, the ALJ did not note that Mr. Browning also reported to Ms.
Boyle that doing the “dishes, laundry, and vacuuming are painful for him and
require[] a change in position to reduce pain.” (AR at p. 774). Similarly, the
ALJ did not note Mr. Browning reported his “sleep is interrupted with pain,
requiring him to get up and move around every couple of hours.” Id.
Although “acts such as cooking, vacuuming, washing dishes, doing
laundry, shopping, driving and walking are inconsistent with subjective
complaints of disabling pain,” Medhaug v. Astrue, 578 F.3d 805, 817 (8th Cir.
2009), Mr. Browning’s alleged inability to sleep properly or perform many of the
functions without experiencing pain is significant. The Eighth Circuit
instructed that in order to determine “whether a claimant has the residual
functional capacity necessary to be able to work we look to whether she has ‘the
ability to perform the requisite physical acts day in and day out, in the
sometimes competitive and stressful conditions in which real people work in the
real world.’ ” Forehand v. Barnhart, 364 F.3d 984, 988 (8th Cir. 2004) (quoting
25

McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir. 1982) (en banc)). In the
fibromyalgia context, the Eighth Circuit held “the ability to engage in activities
such as cooking, cleaning, and hobbies, does not constitute substantial evidence
of the ability to engage in substantial gainful activity.” Brosnahan v. Barnhardt,
336 F.3d 671, 677 (8th Cir. 2003) (citing Kelley, 133 F.3d at 588-89); see also
Savage v. Colvin, __ F. Supp. 2d __, 2014 WL 4351603, at *9 (S.D. Iowa Sept. 3,
2014) (finding that intermittent activities such as taking care of a pet, performing
light cleaning, using public transportation, preparing light meals and shopping
“show[] nothing of the claimant’s ability to work”) (citations omitted).
Mr. Browning’s statements must be taken in context. He reported
experiencing pain when doing dishes, laundry and vacuuming. (AR at p. 774).
He walks a quarter mile in the morning and a quarter mile in the afternoon for
“some sense of exercise.” (AR at p. 60). When asked if he could walk three
hours a day, five days a week, he reported that he only could do that if he was
able to lie down for two to three hours per day. (AR at pp. 58, 62). Mr.
Browning’s assessment of his abilities is consistent with that of Dr. Frost.
Compare AR at pp. 55-68, 782, with AR at pp. 977-84. Mr. Browning’s reports
of improvement in performing life’s daily activities are not inconsistent with his
statements that he can perform those activities only occasionally and
intermittently.
Furthermore, Mr. Browning’s reports do not indicate that he is presently
equipped to handle the “sometimes competitive and stressful conditions” that

26

accompany day-to-day employment. See Forehand, 364 F.3d at 988 (citations
omitted) (internal quotation marks omitted); see also Singh, 222 F.3d at 453
(“[The Eighth Circuit] has repeatedly stated that a person’s ability to engage in
personal activities such as cooking, cleaning or a hobby does not constitute
substantial evidence that he or she has the functional capacity to engage in
substantial gainful activity.”) (citing Kelley, 133 F.3d at 588-89). The court
finds a significant difference between continuously working an eight-hour day,
five days a week and occasionally playing with one’s kittens. See AR at p. 62.
Finally, Mr. Browning has a strong work history with earnings every year
from 1982 through his injury in 2007. (AR at p. 169). An ALJ is required to
consider a claimant’s prior work history when weighing the claimant’s credibility.
See O’Donnell v. Barnhart, 318 F.3d 811, 816 (8th Cir. 2003) (citing Bowman v.
Barnhart, 310 F.3d 1080, 1083 (8th Cir. 2002)). The ALJ provided no indication
he considered Mr. Browning’s work history in assessing Mr. Browning’s
credibility. The ALJ must reconsider Mr. Browning’s credibility in light of the
above analysis.
b.

The ALJ’s Reliance on Ms. Boyle’s Opinions Is Misplaced

The ALJ erred in assessing Mr. Browning’s credibility in light of Ms. Boyle’s
opinion that he could perform sedentary work activities. Mr. Browning’s RFC,
as determined by the ALJ, is not indicative of his ability to perform sedentary
work as defined by the SSA.

The ALJ found Mr. Browning could “sit for 4 hours

a day [and] stand dynamically and statically for a total of 4 hours a day.” (AR at

27

p. 36).

In reaching this conclusion, the ALJ assigned “great weight” to the

findings of Ms. Boyle, who opined:
[Mr. Browning] tolerates sitting frequently for 60 minute intervals (4
hours per day). Dynamic standing is tolerated frequently for 45
minute intervals (3 hours per day), and static standing is poorly
tolerated for 15 minute intervals (1 hour/day). Frequent weight
shifting, compensatory posturing to take pressure off of his low back
by leaning forward, and alternating between sitting and standing is
noted throughout this evaluation.
Id. at p. 782. Ms. Boyle defines “frequently” as “2.6-5.25 hours per day.” Id. at
776.
Dr. Frost opined Mr. Browning only could sit for 0-1 hour and stand/walk
for 0-1 hour in an eight-hour day. Id. at p. 979. Furthermore, Dr. Frost noted
that Mr. Browning must get up and move around every thirty minutes and must
wait thirty minutes after getting up before sitting down again. Id. at 979-80.
Mr. Browning testified he could sit for approximately forty-five minutes to
one hour before he would have to “get up and move around” for approximately
fifteen to twenty minutes before he could sit again. Id. at 57-58. Mr. Browning
further testified if he was performing a five-day-a-week job working eight hours
per day, the most he could sit would be three hours per day, the most he could
stand would be “a couple, three hours” and he could walk two to three hours per
day, but he could not do any of these unless provided the opportunity to lie down
for approximately three hours per day (one hour in the morning and two hours in
the afternoon). Id. at 58-63.
The SSA characterizes sedentary work as requiring only occasional
walking and standing. 20 CFR § 404.1567(a). The SSA defines “occasional”
28

as, “occurring from very little up to one-third of the time, and would generally
total no more than about 2 hours of an 8-hour workday.” Titles II & XVI:
Determining Capability to Do Other Work—Implications of a Residual Functional
Capacity for Less than a Full Range of Sedentary Work, SSR 96-9p (S.S.A 1996);
see also Titles II & XVI: Determining Capability to Do Other Work—The
Medical-Vocational Rules of Appendix 2, 1983-1991, SSR 83-10 (S.S.A. 1983).
The amount of sitting required in a sedentary job, “would generally total about 6
hours of an 8-hour workday.” SSR 96-9p.
Not even Ms. Boyle, who provided the most aggressive estimate of Mr.
Browning’s RFC, opined Mr. Browning could sit for six hours per day, five days a
week—the requirement for sedentary work under the SSA’s policy guidance.
The ALJ’s own assessment of Mr. Browning’s RFC (the ability to sit only for four
hours per day) would exclude Mr. Browning from the type of work included in the
SSA’s “sedentary” classification. See AR at p. 36. Nevertheless, the ALJ
determined Mr. Browning could perform “sedentary” work. Id. at 36-37.
The ALJ’s aggregate finding that Mr. Browning “can sit for 4 hours a day
[and] stand dynamically and statically for a total of 4 hours a day” misses the
mark when determining the jobs available to a person with Mr. Browning’s
specific RFC. See id. at 36. Ms. Boyle, Dr. Frost and Mr. Browning all stated
Mr. Browning only is able to sit, stand and walk in intervals with a distinct
waiting period of approximately fifteen to thirty minutes before he is able to

29

recommence the activity.4 See supra. The ALJ’s general finding that Mr.
Browning can sit for four hours a day does not give an accurate portrayal of Mr.
Browning’s RFC.
The ALJ’s decision to find not credible Mr. Browning’s statements
regarding his disability symptoms beginning July 21, 2011, was due in large part
to the conflicting opinions of Ms. Boyle. (AR at p. 36). Ms. Boyle did not apply
the same characteristics of “sedentary work” the SSA applies. As a result, she
overestimates Mr. Browning’s RFC. Accordingly, the matter is remanded to the
ALJ to reevaluate Mr. Browning’s credibility in light of the court’s analysis. The
ALJ also must reassess Mr. Browning’s RFC to conform with the SSA’s applicable
standards.
3.

ALJ Relied on Flawed Vocational Expert Testimony

The ALJ determined Mr. Browning was unable to perform past relevant
work. Id. at 37. However, the ALJ also found that beginning July 21, 2011,
Mr. Browning possessed the RFC to perform sedentary work. Id. At Mr.
Browning’s November 29, 2011 hearing, the ALJ asked the vocational expert, Mr.
Tysdal, “whether jobs exist in the national economy for an individual with [Mr.
Browning’s] age, education, work experience, and residual functional capacity as
4This

analysis does not give effect to Mr. Browning’s claim that he is
required to lie down for approximately two to three hours per day. As the court
found above, the ALJ should reconsider Mr. Browning’s credibility for purposes
of determining whether a medical improvement occurred and, if so, the extent by
which Mr. Browning’s RFC increased. In light of the court’s earlier finding, a
more thorough examination of Mr. Browning’s claim that he would be required to
lie down for two to three hours per day if he worked an eight-hour day, five days
a week is necessary.
30

of July 21, 2011.” Id. Mr. Tysdal responded that sufficient jobs existed
nationally and locally for a person only able to perform unskilled, sedentary work
as an order clerk, address clerk or charge account clerk. Id.; see also AR at pp.
71-73. However, counsel for Mr. Browning asked Mr. Tysdal:
Q: [T]he jobs you identified for the Judge, would those jobs allow
the person to, let’s say, after four hours of standing, could such
a – I’m sorry – four hours of sitting, could such a person perform
those jobs standing for the rest of the day?
VE: Standing for the rest of –
Q: Yeah
VE: Are you saying that –
Q: I’m saying if the person at most could sit for four hours a day,
that would mean that the [sic] for the rest of the day, they could
only stand, which would just be three hours. So I wanted to
know could those jobs be performed standing?
****
VE: I would say no.
(AR at p. 74).
Mr. Browning asserts Mr. Tysdal’s response to this question indicates the
ALJ improperly relied on Mr. Tysdal’s testimony in reaching his determination
Mr. Browning possessed the RFC to perform the identified “sedentary” jobs. The
court agrees.
The Eighth Circuit held that where the hypothetical question posed to the
vocational expert does not adequately reflect the claimant’s impairments, the
testimony of the vocational expert cannot constitute substantial evidence on the
record as a whole. See Ross v. Apfel, 218 F.3d 844, 850 (8th Cir. 2000); Singh,
31

222 F.3d at 451-53 (citing Pratt v. Sullivan, 956 F.2d 830, 836 (8th Cir. 1992)).
“[T]he testimony of a vocational expert who responds to a hypothetical based on
[the opinion of a consulting physician who has examined the plaintiff only once]
is not substantial evidence upon which to base a denial of benefits.” Singh, 222
F.3d 448, 452 (citing Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000)).
As the court already noted, Ms. Boyle did not apply the SSA’s definition of
“sedentary” when determining Mr. Browning’s RFC. Even by Ms. Boyle’s
standards, Mr. Browning does not possess the functional capacity to perform
sedentary work as defined by the SSA. The ALJ gave Ms. Boyle’s opinions “great
weight” in reaching his conclusion Mr. Browning possessed the RFC to perform
sedentary work. (AR at p. 36). The ALJ’s assessment of Mr. Browning’s RFC is
based on a flawed finding. The question posed by the ALJ to Mr. Tysdal
presupposed Mr. Browning could perform sedentary work as defined by the SSA.
Ms. Boyle, Dr. Frost and Mr. Browning have not indicated this is true. Mr.
Tysdal’s response was based on a flawed finding and does not constitute
substantial evidence.
Mr. Tysdal’s answer to the questions posed by Mr. Browning’s counsel
confirms this finding. The ALJ only asked Mr. Tysdal what “sedentary or light
work” jobs would be available to someone with fourteen years of education. Id.
at 71-72. Mr. Browning’s counsel inquired into the jobs available to someone
with Mr. Browning’s specific RFC as identified by Ms. Boyle. See Pratt, 956 F.2d
at 836 (“[H]ypothetical question[s] posed to [a] vocational expert must precisely

32

set out all claimant’s impairments.”) (citations and internal quotation marks
omitted). This more nuanced line of questioning revealed that Mr. Tysdal did
not believe a person with Mr. Browning’s specific RFC as defined by Ms. Boyle
could perform the jobs he previously stated were available.5
The government’s attempt frame counsel’s question as asking Mr. Tysdal
“if a person who was limited to only seven hours of work . . . could perform a full
eight hour workday” is disingenuous. (Docket 19 at p. 9). As was made
apparent by counsel’s prior iteration of the question, the thrust of the inquiry
was whether a person who is able to sit for only four hours could perform the job
of an order clerk, address clerk or charge account clerk while standing up for the
remainder of the day. See AR at p. 74. Mr. Tysdal responded in the negative.
The ALJ himself found the question was “clear[ly]” posed. Id. The court
agrees.
The ALJ’s reliance on Mr. Tysdal’s opinion is misplaced because the
opinion is not based on Mr. Browning’s specific impairments and RFC.
Therefore, the ALJ’s finding that jobs “exist in significant numbers in the
national economy that [Mr. Browning] can perform” was based on flawed
information and is not supported by substantial evidence in the record as a
whole. Id. at 37. The ALJ must reevaluate Mr. Browning’s RFC and determine

5Mr.

Tysdal’s answer is not surprising. Ms. Boyle determined Mr.
Browning could sit only for four hours per day, while a sedentary job as defined
by the SSA frequently requires sitting for six hours or more per day.
33

whether jobs exist in significant numbers in the national economy which Mr.
Browning can perform.
4.

The ALJ Must Clarify the Date Mr. Browning’s Disability Ended

The court requires clarification regarding the discrepancy between the
date the ALJ found a medical improvement occurred (July 21, 2010) and the date
Mr. Browning’s disability ended (July 21, 2011).

The ALJ found a “[m]edical

improvement occurred as of July 21, 2011, the date [Mr. Browning’s] disability
ended.”

(AR at p. 36) (citing 20 CFR 404.1594(b)(1)); but see id. at 23 (“All

references to medical improvements should read as having occurred as of ‘July
21, 2010.’ ”).

The ALJ also found that “beginning on July 21, 2011, [Mr.

Browning] . . . had the residual functional capacity to perform sedentary work. ”
Id. at 36 (citing 20 CFR 404.1567(a)).

After examining Mr. Browning’s RFC

beginning July 21, 2011, the ALJ found “[Mr. Browning’s] disability ended July
21, 2011” due to the existence of a significant number of sedentary jobs Mr.
Browning could perform.

Id. at 37.

Nonetheless, the ALJ ultimately concluded

Mr. Browning’s period of disability lasted only from September 1, 2007, through
July 20, 2010.

(AR at p. 38); see also id. at 773.

Ms. Boyle’s report, which was

given great weight by the ALJ in reaching his finding that a medical improvement
occurred, was drafted on July 20, 2010.
It is unclear how the ALJ concluded Mr. Browning was disabled only
through July 20, 2010, when the ALJ found Mr. Browning’s disability ended July
21, 2011, based on his assessment of Mr. Browning’s RFC beginning on that
date.

The ALJ must clarify: the date, if any, Mr. Browning’s medical

improvement occurred; the date, if any, Mr. Browning’s disability ended; and the
34

rationale in assessing Mr. Browning’s RFC one year after having already found a
medical improvement.

Because Mr. Browning’s medical improvement related to

his ability to work, id. at 36, the appropriate time period from which to assess his
RFC is the date the medical improvement occurred.

If the date of medical

improvement is the end date of Mr. Browning’s disability, the ALJ should assess
Mr. Browning’s RFC as of that date.
ORDER
Based on the foregoing discussion, the court finds the ALJ=s decision is not
supported by substantial evidence in the record as a whole. The ALJ improperly
assessed the credibility of Dr. Frost and Mr. Browning, the ALJ improperly relied
on the opinions of Ms. Boyle in determining Mr. Browning’s residual functional
capacity, and the ALJ relied on flawed vocational expert testimony in identifying
the jobs available to Mr. Browning.

Accordingly, it is hereby

ORDERED that plaintiff’s motion to reverse the decision of the
Commissioner (Docket 15) is granted in part and denied in part.
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 the court’s analysis.
IT IS FURTHER ORDERED that defendant’s motion to affirm the decision
of the Commissioner (Docket 18) is denied.
Dated September 30, 2014.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
CHIEF JUDGE
35