Weigel v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

TONI WEIGEL PLAINTIFF

v. Civil No. 5:20-cv-05186-PKH-MEF

KILOLO KIJAKAZI, Acting Commissioner,1

Social Security Administration DEFENDANT

MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION

Plaintiff, Toni Weigel (“Weigel”), brings this action under 42 U.S.C. § 405(g), seeking

judicial review of a decision of the Commissioner of Social Security Administration (the

“Commissioner”) denying her claim for supplemental security income (“SSI”) under Title XVI of

the Social Security Act (hereinafter “the Act”), 42 U.S.C. § 1382. In this judicial review, the Court

must determine whether there is substantial evidence in the administrative record to support the

Commissioner’s decision. 42 U.S.C. § 405(g).

I. Procedural Background

Weigel filed her application for supplemental security income on October 26, 2017,

alleging disability beginning July 1, 2014, due to bilateral hip osteoarthritis, lower back problems,

bipolar disorder, post-traumatic stress disorder, anxiety, depression, chronic obstructive

pulmonary disease, and obsessive-compulsive disorder. (ECF No. 11-2, p. 16; ECF No. 11-5, p.

2; ECF No. 11-6, p. 2). She was 42 years old on the date her application was filed, had a limited

1 Kilolo Kijakazi became Acting Commissioner of the Social Security Administration on July 9, 2021. Pursuant

to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi should be substituted as the defendant in this

suit. No further action needs to be taken to continue this suit by reason of the last sentence of section 205(g) of the

Social Security Act, 42 U.S.C. § 405(g).

education, and was unable to perform past relevant work. (ECF No. 11-2, pp. 28). The

Commissioner denied her application initially on March 20, 2018, and upon reconsideration on

September 27, 2018. (ECF No. 11-4, pp. 3, 14). At the Plaintiff’s request, an Administrative Law

Judge (“ALJ”), Hon. Glenn A. Neel, held an administrative hearing on August 12, 2019. (ECF

No. 11-2, pp. 41-76). Weigel was present and represented by counsel. Id., p. 41.

On May 29, 2020, the ALJ concluded that Weigel’s impairments of

osteoarthritis/degenerative disc disease of the lumbar spine status post-surgery, osteoarthritis,

rheumatoid arthritis, restless leg syndrome, obesity, hypertension, chronic pain syndrome, and

history of bilateral total hip arthroplasties were severe, but concluded they did not meet or

medically equal one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (ECF

No. 11-2, pp. 19-20). He then found Plaintiff capable of performing sedentary work, except that

she can perform no climbing; she can only occasionally balance and stoop; she can perform no

kneeling, crouching, or crawling; and she must avoid concentrated exposure to temperature

extremes, humidity, and hazards, including no driving as part of work. Id., pp. 20-28. With the

assistance of a vocational expert (“VE”), the ALJ found the Plaintiff could perform work as a

document preparer, printed circuit board inspector, and a copy examiner. Id., pp. 28-29.

The Appeals Council denied Weigel’s request for review on August 21, 2020. (ECF No.

11-2, pp. 2-7). She then filed this action. (ECF No. 1). This matter is before the undersigned for

report and recommendation. Both parties have filed appeal briefs (ECF Nos. 16, 18), and the case

is now ready for decision.

II. Applicable Law

This Court’s role is to determine whether substantial evidence supports the

Commissioner’s findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). Substantial

evidence is less than a preponderance, but it is enough that a reasonable mind would find it

adequate to support the Commissioner’s decision. Biestek v. Berryhill, 139 S.Ct. 1148, 1154

(2019). We must affirm the ALJ’s decision if the record contains substantial evidence to support

it. Blackburn v. Colvin, 761 F.3d 853, 858 (8th Cir. 2014). If there is substantial evidence in the

record that supports the Commissioner’s decision, the Court may not reverse it simply because

substantial evidence exists in the record that would have supported a contrary outcome, or because

the Court would have decided the case differently. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir.

2015). In other words, if after reviewing the record it is possible to draw two inconsistent positions

from the evidence and one of those positions represents the findings of the ALJ, we must affirm

the ALJ’s decision. Id.

A claimant for Social Security disability benefits has the burden of proving her disability

by establishing a physical or mental disability that has lasted at least one year and that prevents

her from engaging in any substantial gainful activity. Pearsall v. Massanari, 274 F.3d 1211, 1217

(8th Cir. 2001); see also 42 U.S.C. § 1382c(a)(3)(A). The Act defines “physical or mental

impairment” as “an impairment that results from anatomical, physiological, or psychological

abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic

techniques.” 42 U.S.C. § 1382c(a)(3)(D). A claimant must show that her disability, not simply her

impairment, has lasted for at least twelve consecutive months.

The Commissioner’s regulations require her to apply a five-step sequential evaluation

process to each claim for disability benefits: (1) whether the claimant has engaged in substantial

gainful activity since filing her claim; (2) whether the claimant has a severe physical and/or mental

impairment or combination of impairments; (3) whether the impairment(s) meet or equal an

impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past

relevant work; and, (5) whether the claimant is able to perform other work in the national economy

given her age, education, and experience. 20 C.F.R. § 416.920(a)(4). The fact finder only

considers a claimant’s age, education, and work experience in the light of her residual functional

capacity if the final stage of the analysis is reached. 20 C.F.R. § 416.920(a)(4)(v).

III. Discussion

Weigel raises three issues on appeal: (1) whether substantial evidence supports the ALJ’s

determination that she did not meet or medically equal a musculoskeletal listing; (2) whether the

ALJ properly considered her obesity impairment in the determination of RFC; and (3) whether the

ALJ properly considered the opinion evidence. After thoroughly reviewing the record, we find

that substantial evidence does not support the ALJ’s RFC finding. Because this necessitates

reversal and remand, it is not necessary for the undersigned to address the Plaintiff’s remaining

arguments.

RFC is the most a person can still do despite that person’s limitations. 20 C.F.R. § 416.945.

A disability claimant has the burden of establishing her RFC. Vossen, 612 F. 3d at 1016. “The

ALJ determines a claimant’s RFC based on all relevant evidence in the record, including medical

records, observations of treating physicians and others, and the claimant’s own descriptions of his

or her limitations.” Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010); Davidson v. Astrue, 578

F.3d 838, 844 (8th Cir. 2009). Limitations resulting from symptoms such as pain are also factored

into the assessment. 20 C.F.R. § 416.945(a)(3). The United States Court of Appeals for the Eighth

Circuit has held that a “claimant’s residual functional capacity is a medical question.” Miller, 784

F.3d at 479 (citing Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001)). Therefore, an ALJ’s

determination concerning a claimant’s RFC must be supported by medical evidence that addresses

the claimant’s ability to function in the workplace. Perks v. Astrue, 687 F.3d 1086, 1092 (8th Cir.

2012).

The opinion of a non-examining physician, standing alone, does not constitute substantial

evidence in the record in the face of a conflicting assessment of a treating physician. Jenkins v.

Apfel, 196 F.3d 922, 925 (8th Cir. 1999). An ALJ may conduct an independent review of the

medical evidence and other evidence, such as motivation to return to work and daily activities,

along with the non-examining physician’s opinion. Krogmeier v. Barnhart, 294 F.3d 1019, 1024

(8th Cir. 2002). However, an ALJ must not substitute his opinions for those of a physician. Finch

v. Astrue, 547 F.3d 933, 938 (8th Cir. 2008). An ALJ is not permitted to “play doctor.” Pates-

Fires v. Astrue, 564 F.3d 935, 946-47 (8th Cir. 2009).

While an “ALJ may consider all evidence of record, including medical records and

opinions dated prior to the alleged onset date, when there is no evidence of deterioration or

progression of symptoms,” it is improper for an ALJ to rely on an opinion rendered, which given

its timing, could not consider the subsequent medical records indicating a worsening of [a

claimant’s] symptoms and functionality. LaFrance v. Astrue, No. 09-403, 2010 WL 624202, at

*14 (D. Minn. Feb. 22, 2010) (citing Vandenboom v. Barnhart, 421 F.3d 745, 750 (8th Cir. 2005));

see also Wildman v. Astrue, 596 F.3d 959, 967 (8th Cir. 2010) (opinions of non-examining sources

are generally entitled to less weight than examining sources, especially when those opinions do

not account for all the pertinent evidence in the record). An ALJ errs in relying on his own

inferences as to the relevance of notations in the medical record when determining a claimant’s

ability to function in the workplace. See Combs v. Berryhill, 878 F.3d 642, 647 (8th Cir. 2017)

(remanding for further inquiry as to the relevance of “no acute distress” and “normal movement

of all extremities” with respect to the plaintiff’s ability to function in the workplace).

The evidence before the Court does not support the ALJ’s RFC determination because the

ALJ determined Weigel’s RFC without a medical opinion to support his assessment of a large part

of the treatment record showing a worsening condition. In setting out Weigel’s RFC, the ALJ

relied on the March 2018 and August 2018 assessments provided by non-examining state agency

medical consultants. (ECF 11-2, pp. 20-28). State agency physician Robert Redd, M.D., initially

reviewed medical evidence from January 2017 to October 2017 and assessed Weigel with a

sedentary RFC with postural limitations. (ECF No. 11-3, pp. 37-41). Several months later, non-

examining state agency physician Ronald Crow, D.O., reviewed the initial medical evidence as

well as additional evidence from March 2018 to May 2018. Id., pp. 54-57. Dr. Crow also assessed

Weigel as having a sedentary RFC with postural limitations and projected his assessment to be

applicable until March 2019. Id., p. 57. The ALJ found the state agency consultants’ physical

RFC assessments to be persuasive, noting that they were consistent with and supported by

objective findings in the medical evidence of record. (ECF No. 11-2, p. 27). The record does not

contain additional physical consultative examinations or medical source statements. While the

agency consultants reviewed medical evidence from January 2017 to May 2018, a large part of the

medical record occurs outside of the state agency consultants’ scope of review, including records

indicating a worsening condition.

In August 2018, Dr. Scott Fedosky’s examination of Weigel revealed that she was

overweight and exhibited abnormal tenderness to palpation along the paraspinal muscles and spine.

(ECF No. 11-9, p. 111). Weigel explained that she wanted help with weight loss and that she tried

to exercise but experienced increased pain. Id., p. 110. Dr. Fedosky prescribed phendimetrazine

tartrate.2 Id., p. 112.

2 Phendimetrazine tartrate is used for weight loss by making the brain less interested in food. See Weight-loss

medicines, at https://medlineplus.gov/ency/patientinstructions/000346.htm (last accessed January 27, 2022).

Weigel also saw Michael G. Maline, D.O., in August 2018. (ECF No. 11-11, p. 7). She

complained of hip pain with walking and knee pain with swelling and instability. Id., p. 8. She

explained that she fell while trying to break a large branch by stepping on it. Id. Upon

examination, Dr. Maline observed that Weigel had an antalgic gait though she did not need an

assistive device to walk. Id., p. 9. She exhibited swelling of the knee with tenderness of the lateral

patellar facet, the medial patellar facet, the medial joint line, and the lateral joint line. Her hips

exhibited tenderness of the great trochanter despite a normal range of motion and strength on the

left. Id. X-rays revealed a total hip arthroplasty in good position without evidence of fracture or

loosening of the left hip and a well-maintained joint space without evidence of fracture in the left

knee. Id. Dr. Maline found the imaging studies to be unremarkable and believed Weigel had a

contusion from her fall. Id. He prescribed a Medrol Dosepak3 and recommended a home exercise

stretching program for IT band and hip bursitis. Id.

Later in August 2018, Weigel continued treatment with Mary F. Daut, M.D., for lower

back pain, bilateral hip pain, and bilateral knee pain. (ECF No. 11-9, pp. 11). Weigel reported

that her medication regimen did not alleviate the pain she experienced now that she had returned

to work involving increased bending and lifting. Id. She reported pain at 7/10 with medication

and inability to lie on her hip without severe pain. Id. While the recently increased Morphine

dosage was helping, it had become ineffective since her recent attempt to return to work. Id. Upon

examination, Weigel demonstrated joint crepitations with pain on motion of bilateral hips and

knees. Id., p. 14. While she demonstrated normal lower extremity strength and the ability to stand

without difficulty, she exhibited an antalgic gait. Id. Dr. Daut advised Weigel to modify her

activity level rather than increase her medication. Id., p. 15. As oral steroids had not treated

3 Medrol is used to treat inflammation. See Methylprednisolone, at

https://medlineplus.gov/druginfo/meds/a682795.html (last accessed January 27, 2022).

Weigel’s trochanteric bursitis, Dr. Daut advised Weigel to see her orthopedic doctor for an

injection. Id.

In November 2018, Weigel continued treatment with Dr. Daut and explained that her pain

had worsened since attempting to work in a manual labor job. (ECF No. 11-9, p. 29). She

explained that she took more pills than prescribed because she experienced incomplete pain relief

for just four hours. Id. She reported attending physical therapy, which she believed was helping

her with strength, but she still experienced falls and pain. Id. The examination was essentially

unchanged from her previous visit, but Dr. Daut noted that the nature of the physical demands of

her job might not be reasonable with her physical issues. Id., p. 33. Dr. Daut noted that Weigel

had not done well despite undergoing two hip replacement surgeries, and she referred Weigel for

a second opinion regarding the placement of her hardware. Id. Dr. Daut increased Weigel’s

dosage of oxycodone to allow more frequent dosing during work. Id.

In January 2019, Weigel continued treatment with Dr. Fedosky. (ECF No. 11-9, p. 100).

Weigel reported loss of strength in her hips and sought a physical therapy referral for hip issues.

Id. While she reported that she felt generally well, the exam confirmed hip pain with range of

motion and tenderness to palpation. Id., p. 101-102. Dr. Fedosky assessed Weigel for obesity,

hypertension, depression, anxiety, hip pain, and status post bilateral total hip replacement. Id., p.

102. Weigel was referred for physical therapy and advised to continue medications as prescribed.

Id., p. 103.

Also in January 2019, Weigel continued treatment with Dr. Daut. (ECF No. 11-9, p. 39).

She reported pain at 6/10 with medication, that she was pleased with her current medications, and

that she was still attending physical therapy. Id. Weigel explained that she was working full-time

as a caregiver for an elderly person, and that she was taking Xanax, bupropion, and diclofenac

sodium.4 Dr. Daut advised Weigel not to take Xanax due to potential serious interactions with her

other prescriptions. Id. The physical exam was essentially unchanged since the prior visit, and

Dr. Daut noted that Weigel had functionally improved now that she was taking the maximum

opioid prescribing amount. Id., p. 43. Dr. Daut explained, however, that she would not be able to

increase Weigel’s medications even if she were to have a flare-up. Id. Weigel would be referred

to orthopedics for a second opinion regarding her hardware and possible surgical options. Id.

In April 2019, Weigel continued treatment with Dr. Daut and reported increased back pain

with new radiation down the back of her leg to her foot. (ECF No. 11-9, p. 47). Weigel explained

that she was working two jobs, including a landscaping job that required bending and lifting. Id.

She reported new issues with a change of insurance and trouble getting medications. Id. She also

reported adverse side effects from medications prescribed by her primary doctor. Id. Dr. Daut

ordered a lumbar MRI to evaluate the new radicular pain and adjusted Weigel’s medications to

work around insurance restrictions. Id., p. 51. She advised that a landscaping job requiring

bending and lifting would not likely be an option in the foreseeable future with Weigel’s back

issues. Id. Weigel was referred out for pain injections. Id.

Also in April, Dr. Fedosky continued treatment of Weigel and noted abnormal lumbar and

lumbosacral spine tenderness to palpation along the spine and paraspinal muscles. (ECF No. 11-

9, p. 80). He prescribed gabapentin,5 prednisone, 6 bupropion, and alprazolam. Id., p. 81.

4 Xanax is used to treat anxiety. See Alprazolam, at https://medlineplus.gov/druginfo/meds/a684001.html (last

accessed January 27, 2022). Bupropion is used to treat depression. See Bupropion, at

https://medlineplus.gov/druginfo/meds/a695033.html (last accessed January 27, 2022). Diclofenac sodium is used

to treat pain and swelling. See Diclofenac sodium overdose, at https://medlineplus.gov/ency/article/002630.htm

(last accessed January 27, 2022).

5 Gabapentin is sometimes used to relieve pain. See Gabapentin, at

https://medlineplus.gov/druginfo/meds/a694007.html (last accessed January 27, 2022).

6 Prednisone is used to treat symptoms of low corticosteroid levels. See Prednisone, at

https://medlineplus.gov/druginfo/meds/a601102.html (last accessed January 27, 2022).

In May 2019, Weigel’s lumbar spine MRI revealed mild degenerative change involving

the lumbar spine with broad-based central subligamentous disc protrusion at L5-S1 level. (ECF

No. 11-9, p. 53). Dr. Daut reviewed the MRI and noted that Weigel’s symptoms corresponded

with L5-S1 radiculopathy. Id., p. 55. Weigel complained of increased pain at 9/10 even with

medication, continued radicular pain, and only minimal relief and little improvement from the

current medication regimen. Id. The physical exam showed joint crepitations present with pain

on motion of bilateral hips and knees. Id., p. 58. While strength of the lower extremities was

normal, Weigel continued to exhibit an antalgic gait. Id. Weigel explained that she was still

attempting to work full-time. Id., p. 55. Dr. Daut adjusted Weigel’s nerve pain medication and

referred her to neurosurgery for evaluation. Id., p. 59.

Also in May 2019, Weigel sought emergency care for low back pain shooting down her

leg. (ECF No. 11-10, p. 27). An exam showed limited mobility secondary to pain with movement

and ambulation. Id., p. 28. She was given a dose of pain medication in the emergency department

for pain relief and discharged home to continue with normal daily medications. Id. Weigel also

saw Candace Harper, P.A. at a spine clinic for evaluation of herniated lumbar disc. (ECF No. 11-

9, p. 73). The exam showed tenderness at level L4-5 right paraspinal and right sciatic notch. Id.

Flexion and extension were restricted and painful. Straight leg raise and Valsalva tests were

positive. Id. She continued to exhibit an antalgic gait on the right, but her strength was normal in

both lower extremities. Id. Weigel was assessed with lumbar herniated disc and lumbar

radiculopathy, right. Id. The treating P.A. noted that Weigel’s chronic low back pain had not

responded to rest, NSAIDs, or opioid medications. Id. The lumbar MRI showed L5-S1 DDD with

disc protrusion abutting the bilateral S1 nerve roots. Id. Weigel expressed eagerness to return to

work, and the treating P.A. planned a review for surgical consideration. Id.

In June 2019, Weigel underwent a lumbar spine CT myelogram ordered by Candace

Harper, P.A. (ECF No. 11-10, p. 86). The imaging revealed a left posterior central and paracentral

disk protrusion at L5-S1 with impingement upon the transiting left S1 nerve root. Id. It also

showed mild bilateral L5-S1 foraminal stenosis. Id. Weigel later visited the emergency

department again with complaints of low back pain that radiated down her leg. Id., p. 130. An

exam showed tenderness to palpation at the lumbar spine and the right side of the lumbar spine in

the right buttocks. Id., p. 131. She was assessed for chronic back pain, sciatica, and back muscle

spasm. Id., p. 132. Weigel was given valium and Dilaudid7 in the emergency department and

discharged home. Id.

In July 2019, Weigel sought treatment from Dr. Maline for an upper leg and thigh problem.

(ECF No. 11-11, p. 2). Weigel reported tingling and radiating pain in the posterior and groin area

that radiated down her leg. Id., p. 3. She explained that the pain in that area had started

approximately four months ago and had gradually become excruciating such that she could not sit.

Id. Upon examination, Dr. Maline observed that Weigel walked with a limp and antalgic gait. Id.

She exhibited tenderness of the paraspinal on the right at L5 and the sacrum, and the seated straight

leg raising test was positive. Id., p. 4. There was tenderness of the PSIS, the SI joint, the greater

trochanter, biceps femoris muscle, the semimembranosus muscle, the semitendinosus muscle, and

the piriformis. Id. Weigel exhibited 3/5 flexion strength and 3/5 abduction strength on the right.

Id. Dr. Maline concluded that Weigel’s pain was nerve related and encouraged her to continue

with her EMG scheduling and treatment with her pain management physician. Id.

7 Dilaudid is used to treat severe pain in people who are expected to need pain medication around the clock for a

long time and who cannot be treated with other medications. See Hydromorphone, at

https://medlineplus.gov/druginfo/meds/a682013.html (last accessed January 27, 2022).

In August 2019, Weigel was referred for testing with Miles Johnson, M.D., for complaints

of low back pain that radiated into the right lower extremity. (ECF No. 11-12, pp. 135). Dr.

Johnson noted Weigel’s history of bilateral total hip arthroplasties followed by continued severe

pain in the low back and posterolateral right lower extremity. Id. An exam revealed difficulty

with right knee extension, an inability to grade strength secondary to pain, decreased sensation in

the right foot and leg, a positive straight leg raise in the right at 45 degrees, and an antalgic gait.

Id. Dr. Johnson performed electrodiagnostic testing to evaluate peripheral nerve involvement and

assessed Weigel with right S1 radiculopathy. Id., p. 36.

Weigel also sought emergency care for low back pain on two occasions, one day apart, in

August 2019. (ECF No. 11-12, p. 16, 83). She received medication for the pain, and lumbar MRI

scans taken at both visits revealed posterior disc bulge at L5-S1 with encroachment of right S1

nerve roots. Id., pp. 104, 107.

Later in August 2019, Weigel was treated for lumbar pain by neurosurgeon Larry

Armstrong, D.O. (ECF No. 11-12, p. 144). The exam showed that she was in severe distress due

to right leg pain. Id., p. 145. She demonstrated restricted and painful lumbar and sacral spine

flexion, extension, bilateral flexion, and bilateral rotation. All maneuvers radiated to her right

gluteal region into the right lower leg, and she exhibited positive slump, straight leg raise, Thomas,

and Valsalva tests. Id. While no muscle atrophy was noted, Weigel had an antalgic gait with

limping and weakness of the right lower extremity. Id. Dr. Armstrong assessed Weigel with

lumbar herniated disc, lumbar radiculopathy on the right, herniated nucleus pulposus, right leg

weakness, and neural foraminal stenosis of the lumbar spine. Id. He planned to schedule Weigel

for a lumbar microdiscectomy due to neural foraminal stenosis of the lumbar spine. Id. Weigel

underwent a right L5-S1 lumbar micro-laminectomy, medial facetectomy, lateral recess and nerve

decompression, foraminotomy, and excision of HNP on August 27, 2019. (ECF No. 11-14, p. 8).

In January 2020, Weigel returned to Dr. Armstrong with complaints of right foot

numbness, right buttock and calf pain after several falls, and the return of S1 radiculopathy. (ECF

No. 11-15, p. 91). The exam revealed tenderness to the left sciatic notch, restricted and painful

flexion and extension, a positive straight leg raise test, and an antalgic gait. Id., p. 92. While Dr.

Armstrong observed normal muscle tone and normal muscle strength in both lower extremities, he

recommended repeat imaging as he suspected recurrent disc herniation. Id.

Objective medical evidence demonstrates continued treatment from May 2018 to January

2020, including imaging studies of S1 nerve root impingement and S1 radiculopathy and an

operative report for lumbar surgery. (ECF No. 11-10, pp. 86, 104; ECF No. 11-12, p. 135; ECF

No. 11-14, p. 8). Notably, the medical evidence recounted here was not reviewed by the non-

examining state agency physicians in support of their assessments of Weigel’s ability to function

in the workplace. Moreover, there are no consultative exams or medical source statements

assessing Weigel’s physical ability to function in the workplace based on interpretation of these

medical records. While the ALJ considered consultative exams completed in May 2015 and

January 2018, both opinions only addressed Weigel’s mental impairments and symptoms thereof.

(ECF No. 11-2, p. 27).

Despite the state agency physician’s assessment that Weigel could perform sedentary work

with postural limitations until March 2019, the record shows that Weigel displayed worsening

symptoms throughout the relevant period culminating in lumbar surgery in August 2019. The

record does not include opinions from treating physicians or consultative examiners assessing

Weigel’s functional capacity in work settings during the period outside of the state agency

physicians’ scope of review, which included imaging studies of nerve root impingement and an

operative report of lumbar surgery. Without any such opinions, the ALJ could only rely on his

own inferences as to Weigel’s limitations in a work setting given these medical findings.

The Commissioner points to several instances in which Weigel reported to her treatment

providers that she was attempting to work full time. However, “[t]he Commissioner’s decision

must take into account evidence indicating that the claimant’s true functional ability may be

substantially less that the claimant asserts or wishes. In selecting employees, employers are

concerned with substantial capacity, psychological stability, and steady attendance; they will not

unduly risk increasing their health and liability insurance costs by hiring a person with serious

physical or mental problems.” Hutsell v. Massanari, 259 F.3d 707, 713 (8th Cir. 2001) (internal

quotation and citation omitted). While Weigel certainly made several statements regarding

attempts to work full-time, each of these short-lived attempts were in manual labor type jobs and

resulted in worsening symptoms. Weigel’s treating provider, Dr. Mary Daut, noted that the nature

of the physical demands of Weigel’s continued attempts to work might not be reasonable with her

ongoing physical issues. (ECF No. 11-9, p. 33). As no other medical opinion evaluated Weigel’s

ability to function in the workplace, the ALJ determined Weigel’s RFC without a medical opinion

to support his assessment over a large part of the treatment record showing a worsening condition.

By failing to obtain a consultative examination, the ALJ had to rely solely on his inferences

about notations in Weigel’s medical records and their relevance to her ability to function in the

workplace. To support his RFC finding, the ALJ pointed to treatment notes between March 2018

and January 2020 in which Weigel ambulated without an assistive aid, climbed stairs, and attended

physical therapy. (ECF No. 11-2, p. 26). The ALJ referred to treatment notes in which Weigel

reported several attempts to work, often manual labor type jobs, and one occasion of traveling to

Washington to attend a funeral. Id. The ALJ noted Weigel’s reports of constant, severe pain that

was not controlled by medication, especially during her attempts to return to work. Id. The ALJ

noted imaging results showing right S1 radiculopathy and nerve root impingement. Finally, the

ALJ considered Weigel’s operative report for lumbar surgery in August 2019 and noted that she

did not return for a follow up until January 2020 when the treating physician suspected a recurrent

disk herniation. Id. Because RFC is a medical question, the ALJ was not permitted to rely on his

own interpretation of these treatment notes to arrive at Weigel’s RFC. As such, the record does

not provide substantial evidence to support the ALJ’s RFC finding.

Accordingly, the ALJ’s decision is not supported by substantial evidence, and the case

must be reversed and remanded. We also find that a physical consultative examination is necessary

to determine the true restrictions imposed by Plaintiff’s impairments.

On remand, the ALJ should be directed to obtain RFC assessments from the Plaintiff’s

treating physicians, allowing the treating physicians the opportunity to provide an explanation for

the limitations assigned should the ALJ have questions. If those physicians are unwilling or

otherwise unable to complete the RFC assessments, then the ALJ should be directed to order a

consultative examination, complete with a detailed RFC assessment of the Plaintiff’s limitations.

The ALJ should then reassess the Plaintiff’s RFC, considering all her impairments, and conduct a

thorough step four and, if necessary, step five analysis.

V. Conclusion

Based on the foregoing analysis, it is recommended that this case be reversed and remanded

to the Commissioner for further consideration pursuant to sentence four of 42 U.S.C. § 405(g).

The parties have fourteen (14) days from receipt of our report and recommendation

in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely

objections may result in waiver of the right to appeal questions of fact. We remind the parties

that objections must be both timely and specific to trigger de novo review by the district

court.

DATED this 28th day of January 2022.

/s/Mark E. Ford

HONORABLE MARK E. FORD

UNITED STATES MAGISTRATE JUDGE