# Smith v. Saul

> District Court, E.D. Missouri · September 23, 2019

URL: https://www.frixlaw.com/law-library/cases/10231826

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** September 23, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION

RODNEY SMITH, )
)
Plaintiff, )
)
vs. ) Case No. 2:18-cv-00029-AGF
)
ANDREW M. SAUL,1 )
Commissioner of Social Security, )
)
Defendant. )

MEMORANDUM AND ORDER

This action is before this Court for judicial review of the final decision of the
Commissioner of Social Security finding that Plaintiff Rodney Smith was not disabled,
and thus not entitled to disability insurance benefits under Title II of the Social Security
Act, 42 U.S.C. §§ 401-434, or supplemental security income (“SSI”) under Title XVI of
the Act, 42 U.S.C. §§ 1381-1383f. For the reasons set forth below, the decision of the
Commissioner will be reversed and the case remanded for further proceedings.
BACKGROUND
The Court adopts the statement of facts contained in Plaintiff’s brief (ECF No.
17), which the Commissioner has admitted and supplemented (ECF No. 22-1), and the
Commissioner’s Statement of Additional Facts (ECF No. 22-2), which Plaintiff has not
refuted. Together, these statements provide a fair description of the record before the

1 After this case was filed, a new Commissioner of Social Security was confirmed.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Andrew M. Saul is
substituted for Deputy Commissioner Nancy A. Berryhill as the defendant in this suit.
Court. Specific facts will be discussed as needed to address the parties’ arguments.
Plaintiff, who was born on April 4, 1962, filed his applications for benefits on
December 4, 2014. He alleged disability beginning October 1, 2014, due to atrial

fibrillation, panic disorder, Dupuytren’s disease, and knee problems. On May 15, 2015,
Plaintiff’s applications were denied at the administrative level, and he thereafter
requested a hearing before an Administrative Law Judge (“ALJ”).
A hearing was held on November 10, 2016, at which Plaintiff, who was
represented by counsel, and a vocational expert (“VE”) testified. A supplemental

hearing was held on May 23, 2017, to take the testimony of an impartial medical expert,
Delano Bolter, M.D. By decision dated July 12, 2017, the ALJ found that Plaintiff had
the residual functional capacity (“RFC”) to perform less than the full range of “light”
work, as defined by the Commissioner’s regulations, in that:
[H]e can lift and/or carry 20 pounds occasionally and 10 pounds frequently.
He can stand and/or walk for six hours out of an eight-hour workday and sit
for six hours out of an eight-hour workday except he can occasionally climb
ramps and stairs and he can never climb ladders, ropes, or scaffolds. He can
occasionally kneel, crouch, and crawl. He can frequently handle and finger.
He would need to avoid hazards, such as dangerous machinery or
unprotected heights. He is capable of performing simple, routine tasks
throughout the workday with occasional interaction with supervisors and
coworkers. Occasionally is defined as cumulatively comprising of no more
than one-third of the total workday. He should not be required to
communicate with the general public on behalf of the employer.

Tr. 16.
The ALJ next found that, prior to April 3, 2017—when Plaintiff’s age category
changed to an individual of “advanced age,” as defined by the Commissioner’s
2
regulations—Plaintiff could perform certain unskilled jobs listed in the Dictionary of
Occupational Titles (“DOT”) (cleaner; small parts assembler; and inspector / hand
packager), which the VE testified that a hypothetical person with Plaintiff’s RFC and

vocational factors (age, education, work experience) could perform and that were
available in significant numbers in the national economy. Accordingly, the ALJ found
that Plaintiff was not disabled under the Social Security Act prior to April 3, 2017.
However, the ALJ found that Plaintiff was disabled from April 3, 2017 through the date
of the ALJ’s decision, as a result of the age-category change and the direct application of

the Commissioner’s Medical-Vocational Guidelines (“Guidelines”),2 20 C.F.R. Pt. 404,
Subpart P, Appendix 2, Rule 202.02, which compelled a finding of disability for that time
period.3
Plaintiff filed a timely request for review by the Appeals Council of the Social
Security Administration, which was denied on March 5, 2018. Plaintiff has thus

exhausted all administrative remedies, and the ALJ’s decision stands as the final agency
action now under review.
Plaintiff argues that the ALJ erred by: (1) giving “great weight” to the opinion of

2 The Guidelines “are fact-based generalizations about the availability of jobs for
people of varying ages, educational backgrounds, and previous work experience, with
differing degrees of exertional impairment.” Pearsall v. Massanari, 274 F.3d 1211,
1219 (8th Cir. 2001) (citation omitted).

3 The ALJ’s finding of disability post-April 3, 2017, is not challenged in this
proceeding.
3
the medical expert, Dr. Bolter, as to the extent of Plaintiff’s mental impairment, despite
discounting some of the evidence upon which Dr. Bolter relied; (2) failing to support
with sufficient medical evidence the RFC’s physical limitations, particularly as to the

length of time Plaintiff can stand and/or walk in an eight-hour workday; (3) failing to
properly evaluate the medical opinion evidence provided by Plaintiff’s treating
psychiatric nurse practitioner, Catherine Browning, DNP (Doctor of Nursing Practice);
and (4) improperly discrediting Plaintiff’s subjective complaints based upon his daily
activities. Plaintiff asks that the ALJ’s decision be reversed and that he be awarded full

benefits, or alternatively, that the case be remanded for further development of the record.
DISCUSSION
Standard of Review and Statutory Framework
In reviewing the denial of Social Security disability benefits, a court must review
the entire administrative record to determine whether the ALJ’s findings are supported by

substantial evidence on the record as a whole. Johnson v. Astrue, 628 F.3d 991, 992 (8th
Cir. 2011). The court “may not reverse merely because substantial evidence would
support a contrary outcome. Substantial evidence is that which a reasonable mind might
accept as adequate to support a conclusion.” Id. (cleaned up and citations omitted). A
reviewing court “must consider evidence that both supports and detracts from the ALJ’s

decision. If, after review, [the court finds] it possible to draw two inconsistent positions
from the evidence and one of those positions represents the Commissioner’s findings,
[the court] must affirm the decision of the Commissioner.” Chaney v. Colvin, 812 F.3d
4
672, 676 (8th Cir. 2016) (citations omitted). Put another way, a court should “disturb the
ALJ’s decision only if it falls outside the available zone of choice.” Papesh v. Colvin,
786 F.3d 1126, 1131 (8th Cir. 2015) (citation omitted). A decision does not fall outside

that zone simply because the reviewing court might have reached a different conclusion
had it been the finder of fact in the first instance. Id.
To be entitled to benefits, a claimant must demonstrate an inability to engage in
substantial gainful activity which exists in the national economy, by reason of a
medically determinable impairment which has lasted or can be expected to last for not

less than 12 months. 42 U.S.C. § 423(d)(1)(A). The Commissioner has promulgated
regulations, found at 20 C.F.R. §§ 404.1520 and 415.920, establishing a five-step
sequential evaluation process to determine disability. The Commissioner begins by
deciding whether the claimant is engaged in substantial gainful activity. If not, the
Commissioner decides whether the claimant has a “severe” impairment or combination of

impairments. A severe impairment is one which significantly limits a person’s physical
or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(c). A special
technique is used to determine the severity of mental disorders. This technique calls for
rating the claimant’s degree of limitations in four areas of functioning: understanding,
remembering, or applying information; interacting with others; concentration,

persistence, or pace; and adapting or managing oneself. 20 C.F.R. § 404.1520a(c)(3).
If the impairment or combination of impairments is severe and meets the duration
requirement, the Commissioner determines at step three whether the claimant’s
5
impairment meets or is medically equal to one of the deemed-disabling impairments
listed in the Commissioner’s regulations. If not, the Commissioner asks at step four
whether the claimant has the RFC to perform his past relevant work. If the claimant

cannot perform his past relevant work, the burden of production shifts at step five to the
Commissioner to demonstrate that the claimant retains the RFC to perform other work
that exists in significant numbers in the national economy and that is consistent with the
claimant’s vocational factors. See, e.g., Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir.
2010). “However, the 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.” Hensley v. Colvin, 829 F.3d 926, 932 (8th Cir. 2016) (citation omitted).
When a claimant cannot perform the full range of work in a particular category of work
(medium, light, and sedentary) listed in the regulations, the ALJ must produce testimony
by a VE (or other similar evidence) to meet the step-five burden. See Baker v. Barnhart,

457 F.3d 882, 894 (8th Cir. 2006).
RFC’s Physical Limitations
Because the Court finds that Plaintiff’s second argument—that the ALJ failed to
support with sufficient medical evidence the RFC’s physical limitations—warrants
remand, it will discuss that argument first. Although “there is no requirement that an

RFC finding be supported by a specific medical opinion,” an RFC “is a medical question
[and, therefore,] an ALJ’s assessment of it must be supported by some medical evidence
of the claimant’s ability to function in the workplace.” Hensley, 829 F.3d at 932.
6
As noted above, the ALJ found that Plaintiff could perform jobs falling within the
category of “light work,” including finding that Plaintiff could stand and/ or walk for six
hours out of an eight-hour workday. The Court agrees with Plaintiff that these findings

are not sufficiently supported by medical evidence.
The Commissioner’s regulations define “light work” as work that involves lifting
no more than 20 pounds at a time with frequent lifting or carrying of up to 10 pounds,
and that might require a good deal of walking or standing, or some pushing and pulling of
arm or leg controls. 20 C.F.R. § 404.1567(b). Social Security Ruling (“SSR”) 83-10,

elaborates that the full range of light work requires standing or walking, off and on, for a
total of approximately six hours of an eight-hour workday, while sitting may occur
intermittently during the remaining time; and that many unskilled light jobs require use of
arms and hands to grasp and to hold and turn objects. SSR 83-10, 1983 WL 31251, at *6
(1983).

As Plaintiff notes, in determining Plaintiff’s physical limitations, the ALJ relied in
part on the April 20, 2015, consultative examination by Eddie Runde, M.D. In
particular, the ALJ noted:
Dr. Runde observed that the claimant was “somewhat clumsy” with
pressured speech. There was tenderness and thickening of the flexor
tendons in the claimant’s hands, consistent with Dupuytren’s contractures.
There was tenderness in the claimant’s left knee, but his gait was normal.
Based on his observations of the claimant, Dr. Runde opined in part, that the
claimant could lift/carry 30 pounds occasionally and 15 pounds frequently
due to his hand contractures. Partial weight is given to this opinion. Dr.
Runde is only an examining source that does not have a treating relationship
with the claimant. The undersigned further finds that claimant’s combined
7
physical impairments and related symptoms support greater limitations than
Dr. Runde has indicated.

Tr. 17 (emphasis added). The ALJ then found that Plaintiff had greater limitations than
Dr. Runde indicated with respect to lifting and carrying, in that the ALJ found that
Plaintiff could only lift and/or carry 20 pounds occasionally and 10 pounds frequently.
However, the ALJ failed to mention other physical limitations that Dr. Runde
indicated, including that:
3) In an 8-hour workday, [Plaintiff] may stand and/or walk with normal
breaks at least 2 hours total (sedentary work – stand and/or walk for 15
minutes each hour in an 8-hour day) due to his knee [degenerative joint
disease].4

* * *

5) [Plaintiff] is limited on pushing or pulling: Unlimited other than as
shown for lifting and/or carrying and unable to repeatedly/forcefully grasp
with his hands (L>R).

Tr. 647.
The Commissioner concedes that Dr. Runde set forth “more restrictive
limitations” than the ALJ did “regarding standing and/or walking, pushing/pulling, and
grasping,” but the Commissioner argues that the ALJ discounted these parts of Dr.
Runde’s opinion because “the ALJ properly reasoned that Dr. Runde was only an

4 The Court notes that Dr. Runde’s reference to “at least 2 hours” could suggest that
Plaintiff is capable of standing and/or walking for a longer period of time. But because,
as discussed below, the ALJ does not discuss any other medical evidence supporting his
finding that Plaintiff could stand and/or walk for six hours out of an eight-hour workday,
remand is required.
8
examining source and did not have a treating relationship with Plaintiff.” ECF No. 22 at
7-8.
The problem with the Commissioner’s argument is that it assumes the ALJ

actually considered Dr. Runde’s findings as to Plaintiff’s standing/walking,
pushing/pulling, and grasping abilities, and determined that Plaintiff was not as limited as
Dr. Runde stated. But nothing in the ALJ’s opinion indicates that the ALJ even
considered these findings, let alone that he found they were overstated. If anything, the
opinion indicates the opposite. To the extent the ALJ considered Dr. Runde’s opinion,

the ALJ found that Plaintiff was more limited than Dr. Runde stated.
And the ALJ did not explain what other medical evidence supported his findings
with respect to Plaintiff’s standing and/or walking, pushing and/or pulling, and grasping
abilities. To the contrary, the ALJ noted that “[t]he record reflects chronic pain and
fatigue associated with a heart condition, hand contractures, and a knee impairment,” and

that “[d]iagnostic imaging of the left knee [in January 2015] confirmed findings
consistent with degeneration.” Tr. 16. It may well be that the ALJ could support his
finding as to the physical abilities noted above with medical evidence in the record, but
he has not done so.
As Plaintiff notes, the VE testified that if the person in the ALJ’s hypothetical

question could only stand and/or walk for four hours in an eight-hour workday, the
person could not perform the jobs the VE identified and there would be no other
unskilled light occupations available. Tr. 118-19. Additional limitations with respect to
9
pushing, pulling, or grasping could further alter the VE’s and the ALJ’s analysis. Thus,
the Court believes that remand is required. See Draper v. Barnhart, 425 F.3d 1127,
1130 (8th Cir. 2005) (“While a deficiency in opinion-writing is not a sufficient reason to

set aside an ALJ's finding where the deficiency has no practical effect on the outcome of
the case, inaccuracies, incomplete analyses, and unresolved conflicts of evidence can
serve as a basis for remand.”) (cleaned up and citations omitted).
Upon remand, the ALJ should appropriately review and reevaluate the current
evidentiary record, including Dr. Runde’s opinion and other medical evidence regarding

Plaintiff’s physical abilities, particularly with respect to standing and/or walking, pushing
and/or pulling, and grasping; and should further develop the record as necessary to
formulate an RFC supported by some medical evidence and to continue with the next
steps of the sequential evaluation process. The reassessed RFC should be accompanied
by a discussion and description of how the evidence supports each RFC conclusion.

Remaining Arguments
In light of the remand and reevaluation of Plaintiff’s physical RFC, the ALJ shall
likewise reassess Plaintiff’s mental RFC and the medical opinion evidence, including the
opinions of Dr. Bolter and Dr. Browning. The ALJ should also reevaluate Plaintiff’s
credibility in accordance with Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).

Although the RFC’s mental limitations are arguably supported by substantial
evidence on the record, the Court is troubled by the ALJ’s (and Dr. Bolter’s) express
reliance on Plaintiff’s ability to play the drums in finding that Plaintiff’s mental
10
symptoms are no more than moderate. See, e.g., Tr. 16, 18,57. Plaintiff testified at the
evidentiary hearing that he had stopped playing the drums as a result of his mental
impairments. Tr. 102. remand, the ALJ should address this apparent inconsistency.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner in denying
benefits is REVERSED and the action is REMANDED for further proceedings
consistent with the above.
A separate Judgment shall accompany this Memorandum and Order.

UNITED STATES DISTRICT JUDGE
Dated on this 23rd day of September, 2019.

1]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10231826. Public record. Not legal advice.