The opinion
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHWESTERN DIVISION
CLYDE MINKS, III, )
)
Plaintiff, )
)
vs. )
) Case No. 20-CV-05063-SW-WBG
KILOLO KIJAKAZI,1 )
Acting Commissioner of Social Security, )
)
Defendant. )
ORDER AND OPINION REVERSING COMMISSIONER’S FINAL DECISION
DENYING BENEFITS AND REMANDING FOR FURTHER PROCEEDINGS
Pending is Plaintiff Clyde Minks’s appeal of the Commissioner of Social Security’s final
decision denying his application for supplemental security income. After carefully reviewing the
record and the parties’ arguments, the Commissioner’s decision is REVERSED, and the matter is
REMANDED for further proceedings.
I. BACKGROUND
Plaintiff was born in 1975 and has a limited education.2 R. at 20, 58, 76, 132, 153. He
previously worked as a construction worker. R. at 20, 71-72. In May 2018, Plaintiff protectively
applied for supplemental security income, alleging a disability onset date of January 4, 2016. R.
at 11, 132-38. In July 2018, his application was denied. R. at 11, 101-04. Plaintiff then requested
a hearing before an administrative law judge (“ALJ”). R. at 105-07.
On July 1, 2019, ALJ James Gillet held a hearing during which Plaintiff and a vocational
expert testified. R. at 56-75. Thereafter, on August 30, 2019, the ALJ issued a decision finding
1 Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi, Acting Commissioner of the Social
Security Administration, is automatically substituted as Defendant in this suit.
2 Plaintiff completed the ninth grade but subsequently left school. R. at 153.
Plaintiff is not disabled. R. at 11-22. He concluded Plaintiff’s severe impairments are cervical
degenerative disc disease and compression fracture secondary to traumatic injury, status post
fusion and hardware implantation; upper extremity radiculopathy; low back pain; and major
depressive disorder. R. at 13. He determined Plaintiff has the residual functional capacity (“RFC”)
to perform sedentary work as defined in 20 C.F.R. § 416.967(a) with the following additional
limitations:
[L]ifting and carrying is limited to 5 pounds frequently and 10 pounds occasionally;
standing and walking is limited to two hours in an eight-hour workday and 10
minutes at any one time; sitting is limited to six hours in an eight-hour workday and
one hour at any one time; after one hour the individual requires the ability to stand
and stretch not more than two minutes at the workstation and can remain on task
while stretching; while seated this individual requires the ability to shift at will from
side to side and can remain on task while shifting; bending, twisting, turning,
stooping and squatting are limited to 15% of the workday; no kneeling or crawling;
no climbing ropes, ladders or scaffolds; climbing ramps or stairs is limited to 15%
of the workday; reaching is limited to frequent except reaching over the shoulders
is limited to 15% of the workday; no use of air or vibrating tools; no work on
vibrating surfaces, under hazardous conditions or at unprotected heights; all work
should be simple, routine and repetitive in task, and simple decision-making; no
interaction with the public; and no more than occasional interaction with co-
workers and supervisors.
R. at 16.
Based on his review of the record, his RFC determination, and the testimony at the hearing,
the ALJ concluded Plaintiff could work as a document preparer, touch up screener, and table
worker, and therefore, is not disabled. R. at 21-22. Plaintiff unsuccessfully appealed the ALJ’s
decision to the Appeals Council. R. at 1-5, 130-31. He now appeals to this Court. Doc. 3.
II. STANDARD OF REVIEW
Judicial review of the Commissioner’s decision is a limited inquiry into whether substantial
evidence supports the findings of the Commissioner and whether the correct legal standards were
applied. 42 U.S.C. § 405(g); Turpin v. Colvin, 750 F.3d 989, 992-93 (8th Cir. 2014). The Court
must affirm the Commissioner’s decision if it is supported by substantial evidence in the record as
a whole. Igo v. Colvin, 839 F.3d 724, 728 (8th Cir. 2016). The threshold for such evidentiary
sufficiency is not high. Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019). “Substantial evidence
is less than a preponderance, but enough that a reasonable mind would find it adequate to support
a conclusion.” Noerper v. Saul, 964 F.3d 738, 744 (8th Cir. 2020) (citation omitted). “As long as
substantial evidence supports the ALJ’s decision, [a reviewing court] may not reverse because
substantial evidence also ‘would have supported a contrary outcome, or because [the court] would
have decided the case differently.’” Winn v. Comm’r, Soc. Sec. Admin., 894 F.3d 982, 987 (8th
Cir. 2018) (quoting Andrews v. Collins, 791 F.3d 923, 928 (8th Cir. 2015)).
In evaluating for substantial evidence, a court must consider evidence that supports the
Commissioner’s decision as well as evidence that detracts from it. Anderson v. Astrue, 696 F.3d
790, 793 (8th Cir. 2015) (citation omitted). If, after reviewing the entire record, it is possible to
draw two inconsistent positions, and the Commissioner has adopted one of those positions, the
Court must affirm. See id.
III. DISCUSSION
Plaintiff’s sole issue in this appeal is whether the ALJ’s RFC is supported by substantial
evidence. Doc. 14 at 8-17. The ALJ found Plaintiff could perform sedentary work with frequent
reaching, except reaching over the shoulders should be limited to 15% of the workday. R. at 16.
Plaintiff contends this finding was made “despite the only medical evidence of record indicating
no reaching in all directions.” Doc. 14 at 1. The Commissioner maintains the ALJ’s RFC,
including the reaching limitation, is supported by at least some medical evidence in the record.
Doc. 19 at 6-15.
One’s RFC is the “most you can still do despite your limitations.” 20 C.F.R. §
416.945(a)(1). The ALJ must base the RFC on “all of the relevant evidence, including the medical
records, observations of treating physicians and others, and an individual’s own description of his
limitations.” Combs v. Berryhill, 878 F.3d 642, 646 (8th Cir. 2017) (quoting Strongson v.
Barnhart, 361 F.3d 1066, 1070 (8th Cir. 2004) and McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir.
2000)). Because the RFC is a medical question, “an ALJ’s assessment of it must be supported by
some medical evidence of [Plaintiff’s] ability to function in the workplace.” Hensley v. Colvin,
829 F.3d 926, 932 (8th Cir. 2016) (citation omitted). However, “there is no requirement that an
RFC finding be supported by a specific medical opinion.” Id.
In the written decision, the ALJ “must include a narrative discussion describing how the
evidence supports each conclusion.” Soc. Sec. Admin., Policy Interpretation Ruling Titles II &
XVI: Assessing Residual Functional Capacity in Initial Claims, SSR 96-8p, 1996 WL 374184, at
*7 (July 2, 1996). “If the RFC assessment conflicts with an opinion from a medical source, the
adjudicator must explain why the opinion was not adopted.” Id. “The adjudicator must also
explain how any material inconsistencies or ambiguities in the evidence in the case record were
considered and resolved.” Id.
A. Plaintiff’s Medical Records3
In January 2016, Plaintiff was transferred to Barnes Jewish Hospital from Joplin after
suffering severe trauma to the back of his neck.4 R. at 332-470. He was diagnosed with a central
cord syndrome (after direct trauma) and severe degenerative disc disease at C4-C5 and C6-C7 with
loss of cervical lordosis. R. at 334, 336, 338, 340, 344, 346. Plaintiff advised physicians he had
bilateral upper extremity weakness and a burning sensation in both upper extremities. R. at 332.
3 Supplemental Security Income is payable beginning with the month after a claimant’s application is filed. 20 C.F.R.
§ 416.335. Thus, the relevant period of review for Plaintiff’s claim is from May 21, 2018, his protective filing date,
through August 30, 2019, the date of the ALJ’s decision.
4 In 2016, Plaintiff was assisting a friend with unloading a door from a stack of doors loaded onto a short flatbed truck.
R. at 224. He was injured when one of the doors fell from the stack and struck him on the head. R. at 224.
Further, imaging studies of Plaintiff’s spine showed “significant stenosis of [his] spinal canal.” R.
at 339, 344.
At the direction of hospital physicians, Plaintiff reported to Brian Ipsen, M.D., for a follow-
up consultation in April 2016. R. at 310. At that time, Plaintiff reported mild neck pain with
bilateral shoulder and arm pain with numbness and tingling. Id. He also reported numbness in his
hands and fingers. Id. Dr. Ipsen recommended surgery. R. at 312. On April 25, 2016, Plaintiff
underwent surgical procedures including an anterior cervical discectomy and fusion of C4 to T1,
a corpectomy at C5 to C6, and a posterior cervical fusion at C4 to T2. R. at 301-05. After surgery,
Plaintiff continued to report pain, tenderness, decreased range of motion, and muscle spasms. See,
e.g., R. at 224, 246-49, 306-07, 311, 315-16, 319. In November 2016, a CT showed cervical fusion
with disc herniation and spinal canal stenosis with severe foraminal stenosis on the left side. R. at
328. In November 2017, an x-ray of Plaintiff’s neck revealed advanced adjacent level disc
degeneration at C3-C4 with “angular kyphosis.” R. at 203-05.
During the relevant period of review, there are few medical records. See R. at 263-71, 291,
293-99. In May 2018, Plaintiff reported having chronic neck pain but was found to have normal
musculoskeletal inspection, range of motion, upper extremity strength, sensations, motor strength,
and deep tendon reflexes. R. at 268-69. In June 2018, Plaintiff presented with chronic neck and
low back pain and cervical radiculopathies. R. at 263-65. He described his pain as “unbearable.”
R. at 263. The physician’s examination notes revealed normal musculoskeletal inspection, range
of motion, upper extremity strength, sensations, motor strength, and deep tendon reflexes. R. at
265. In June 2018, Plaintiff also complained of right knee pain; however, an x-ray of his knee was
“unremarkable.” R. at 263, 299. And, in August 2018, Plaintiff was seen at an urgent care facility
for abdominal pain. R. at 293-97. None of these records, however, indicate Plaintiff’s reaching
ability, including overhead, was ever evaluated by the examining physicians.
B. Medical Opinion Evidence
(1) Ted Lennard, M.D.
In March 2018, Ted Lennard, M.D., performed an independent medical evaluation for
Plaintiff’s worker’s compensation claim.5 R. at 224-31. Plaintiff complained of “constant aching
pain in his mid to left” side of his neck and “constant numbness and tingling in his bilateral upper
extremities.” R. at 224. Dr. Lennard observed there was no tenderness, swelling or instability in
Plaintiff’s shoulders. R. at 227. He also determined Plaintiff had full range of motion in both
shoulders but experienced “pain in the neck with motion” in both shoulders. Id. Dr. Lennard
found Plaintiff had full range of motion without pain in his lumbar spine, full range of motion with
“minimal pain” in his thoracic spine, and minimal motion with pain upon movement of his cervical
spine. Id. Based on his examination and review of medical records, Dr. Lennard opined Plaintiff
would require “indefinite and lifelong use of medication for his residual symptoms.” R. at 231.
He also stated Plaintiff should “avoid activities that require lifting, pushing, carrying, or pulling”
more than five pounds, “use of the upper extremities in the overhead or reaching position,
squatting, ladder climbing and professional driving.” Id.
(2) Kevin Threlkeld, M.D.
In July 2018, a non-examining State Agency Consultant, Kevin Threlkeld, M.D. reviewed
the available medical record and opined the record was “insufficient to establish a disabling
impairment” at that time. R. at 79-80. Dr. Threlkeld noted the medical evidence “[did] not indicate
a listing level impairment,” and indicated “additional information [was] needed to evaluate this
case.” Id. Since Dr. Threlkeld’s opinion, additional medical evidence was added to the record.
See R. at 19, 76-82.
5 Although not binding, an ALJ may consider an opinion that was part of a workers’ compensation claim. See Prosch
v. Apfel, 201 F.3d 1010, 1014 (8th Cir. 2000).
(3) M. Bijpuria, M.D.
In March 2019, non-examining State Agency Consultant M. Bijpuria, M.D., reviewed the
available medical record and opined that, in the “absence of longitudinal treatment, operative
report, post operative follow up[,] clinical finding and current imaging evidence,” the medical
evidence is “insufficient to establish severity of medically determinably musculoskeletal
impairment.” R. at 221. Dr. Bijupria, whose opinion was based solely on review of the medical
records, concluded a “complete musculoskeletal (orthopedic) evaluation from [an] acceptable
source” including “documentation of specific symptoms, onset past and current treatment
response, ADL, ROM spine and extremities in degrees, gait, grip, pinch, grasp dexterity, any
evidence of motor weakness atrophy radicular neurological deficits, SLR, [and] need of assistive
and brace” were needed. R. at 220-21.
C. The ALJ’s Consideration of the Medical Opinions
The ALJ found Dr. Lennard’s opinion was unpersuasive. R. at 19-20. He noted the most
recent medical evidence cited by Dr. Lennard predated his medical opinion by two years. R. at
19. In addition, the ALJ observed the objective medical evidence reflected “conservative, routine
treatment,” the record did not indicate “additional, more aggressive care was anticipated,” and
Plaintiff’s subjective complaints were “inconsistent with his level of care.” R. at 20. Further, the
ALJ noted the record did not reflect any “additional, more aggressive care was anticipated.” Id.
The ALJ also found Dr. Threlkeld’s and Dr. Bijpuria’s opinions to be unpersuasive. R. at
19. He acknowledged that both Dr. Threlkeld and Dr. Bijpuria are familiar with the Social Security
rules and regulations regarding disability. Id. However, the ALJ pointed out that since the date
of Dr. Threlkeld’s opinion, additional evidence had been added to the record, and although that
additional evidence “still fail[ed] to support the support the severity of symptoms and limitations
alleged,” it revealed diagnoses “by an acceptable medical source outlining [Plaintiff’s] cervical
condition including a fracture, upper extremity radiculopathy, and low back pain, with the resulting
symptoms and limitations therefrom.” Id. Relating to Dr. Bijpuria’s opinion, the ALJ found it did
not identify Plaintiff’s functional limitations or restrictions. Id. Furthermore, the ALJ noted Dr.
Bijpuria’s opinion did not assess Plaintiff’s “work-related abilities on a function-by-function
basis.” Id. In addition, the opinion did not “address the cervical imaging which show[ed]
abnormalities.” Id.
D. The ALJ’s RFC
In support of his RFC determination, the ALJ noted imaging demonstrated “extensive
postsurgical changes from C4 through T2 and C4 through T1; advanced adjacent level disc
degeneration at C3-4 with kyphosis; and bilateral foraminal stenosis.” R. at 17. He observed
“[s]ome evidence reflects additional degenerative joint disease immediately above the fusion.” Id.
The ALJ found the imaging was “consistent with some abnormality of [Plaintiff’s] cervical and
thoracic spine,” but there was no evidence of “significant nerve root impingement, severe stenosis,
progressive neurological deficits, tumors or fractures to cause the severity of pain and disabling
limitations as alleged by [Plaintiff].” R. at 17-18. The ALJ’s decision addressed Plaintiff’s neck
and back tenderness, and positive straight leg raising tests, but also observed there was “no
significant muscle atrophy, persistent paravertebral muscle spasm, significant motor loss, serious
reflex abnormality, serious gait disturbance, or significantly reduced range of motion of the pain.”
R. at 18. Accordingly, the ALJ found Plaintiff could “perform work with the physical limitations”
incorporated in the RFC. Id.
Specific to Plaintiff’s ability to reach, the ALJ’s RFC indicates Plaintiff could reach
frequently “except reaching over the shoulders is limited to 15% of the workday.” R. at 16. The
medical evidence in the record, however, does not support such a limitation. In fact, the record
reveals continuous reports of bilateral upper extremity numbness, tingling, weakness, and pain.
See, e.g., R. at 246-47, 249, 264, 310, 315, 332, 339. Although most of this evidence predated the
period of review, the ALJ cited only two records during the relevant timeframe to support his RFC:
(1) a follow up appointment at a community health center related to mental health, and (2) a visit
to an urgent care facility for abdominal pain. R. at 18 (citing R. at 265, 296).
Despite the limited medical record, the ALJ somehow found Plaintiff capable of frequently
reaching and capable of reaching over the shoulders for 15% of the workday. The ALJ’s failure
to cite medical evidence supporting his finding that Plaintiff could frequently reach stems from his
failure to develop the record. “[T]he ALJ bears a responsibility to develop the record fairly and
fully, independent of the claimant’s burden….” Brown v. Colvin, 825 F.3d 936, 939 (8th Cir.
2016) (quoting Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004)). If the record “does not
contain all the information” needed to determine whether a claimant is disabled, the ALJ may
recontact a medical source, request additional existing evidence, order a consultative examination,
or ask the claimant or others for more information. 20 C.F.R. § 416.920b(b)(2). However, the
ALJ does not have to “seek additional clarifying statements from a treating physician unless a
crucial issue is undeveloped.” Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
Here, Plaintiff’s reaching ability is a crucial issue that is undeveloped in the current record.
Because the ALJ’s RFC indicated Plaintiff could frequently reach with a limitation of reaching
over the shoulders to 15% of the workday, he should have cited some medical evidence to support
such a capability. The ALJ’s RFC is not supported by substantial evidence, and, accordingly, the
Court must reverse the Commissioner’s decision and remand this matter. Upon remand, the ALJ
shall more fully develop the record with regard to Plaintiff’s reaching capabilities and limitations.
IV. CONCLUSION
For the foregoing reasons, the Court finds the substantial evidence in the record as a whole
does not support the ALJ’s decision. Accordingly, the Commissioner’s decision is REVERSED,
and the matter is REMANDED for further proceedings consistent with this Order.
IT IS SO ORDERED.
DATE: March 24, 2022 /s/ W. Brian Gaddy
W. BRIAN GADDY
UNITED STATES MAGISTRATE JUDGE