United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
PATRICIA L. COHEN, UNITED STATES MAGISTRATE JUDGE
Whitney (“Plaintiff”) seeks review of the
decision of the Social Security Commissioner, Nancy
Berryhill, denying his application for Supplemental Security
Income under the Social Security Act. The Court has reviewed the
parties' briefs and the entire administrative record,
including the hearing transcript and medical evidence. For
the reasons set forth below, the case is reversed and
Background and Procedural History
December 8, 2011, Plaintiff filed an application for
Supplemental Security Income alleging that he was disabled as
of January 1, 2007 as a result of “pinched nerve in
lower back, arthritis, depression, anxiety, 11th rib broken,
right ankle fractor [sic], nose broken, low blood
pressure.” (Tr. 161-66 209-18). The Social Security
Administration (SSA) denied Plaintiff's claims, and he
filed a timely request for a hearing before an administrative
law judge (ALJ). (Tr. 60-64, 65-66).
granted Plaintiff's request for review, and an ALJ
conducted a hearing on January 1, 2014. (Tr. 60-64,
40-53). At the hearing, Plaintiff testified that he was
fifty-nine years old and had an eighth grade education and a
history of drug and alcohol abuse. (Tr. 40). Plaintiff stated
that he received food stamps and he was living “with a
friend right now. . . . I was homeless up until then.”
(Tr. 41). Plaintiff testified that he was able to read
“a little” and walk two blocks without an
assistive device. (Tr. 44). Plaintiff explained that he
ceased wearing his medical boot because “there was too
much pressure on it, and beside [sic], it had worn out, and I
didn't think to go back and have them to reschedule me
another one.” (Tr. 42-43). Plaintiff further stated:
“I've been trying to make it work on my own. I have
a - a pusher that allows…that helps me when I'm
out and about.” (Tr. 43). Plaintiff's counsel
stipulated that Plaintiff “is able to do a full range
of medium work, except for the mental.” (Id.).
vocational expert (VE) also testified at the administrative
hearing. (Tr. 46-53). The ALJ asked the VE to consider an
hypothetical individual with Plaintiff's age, education,
and background, including a history of incarceration and
homelessness, who was “able to do simple, repetitive,
unskilled tasks; brief and occasional superficial interaction
with the general public; frequent interaction with
supervisors and coworkers; working better with things rather
than people; time off task, 2 percent of the work day; loss
of productivity of 2 percent; and able to respond to routine
changes, occasionally, in the work setting.” (Tr.
48-49). The VE testified that such an individual could work
as a dining room attendant, warehouse worker, or janitor.
(Id.). The VE affirmed that her testimony was
consistent with the Dictionary of Occupational Titles (DOT)
and Occupational Handbook “except for the time off task
and loss of productivity, ” which was “based on
[her] experience having done extensive job analysis of
placements over [her] years of work.” (Tr. 49-50).
decision dated March 11, 2015, the ALJ applied the five-step
evaluation process set forth in 20 C.F.R. §
416.912(d) and found that Plaintiff “has not
been under a disability within the meaning of the Social
Security Act since December 8, 2011, the date the application
was filed.” (Tr. 18-36). The ALJ found that Plaintiff,
who was fifty-six years of age on the date he filed the
application, had the severe impairment of borderline
intellectual functioning and the non-severe impairments of a
right foot fracture and arthritis in his lumbar spine. (Tr.
reviewing Plaintiff's testimony and medical records, the
ALJ determined that Plaintiff's “statements
concerning the intensity, persistence and limiting effects of
these symptoms are not credible[.]” (Tr. 24). The ALJ
found that Plaintiff had the residual functional capacity
perform medium work as defined in 20 CFR 416.967(c) except
the claimant can understand, remember, and carry out simple,
repetitive, and unskilled tasks, interact occasionally,
briefly, and superficially with the general public and
frequently with supervisors and coworkers; work with things
instead of people; stay on-task for at least 98% of the
workday with no more than a 2% loss in productivity; and
occasionally respond to routine changes in the work setting.
found that Plaintiff could not perform his past relevant work
as an industrial cleaner because “an industrial cleaner
generally needs to perform at a level 2 reasoning and
language development level.” (Tr. 29). The ALJ
explained: “This requires carrying out detailed but
uninvolved instructions and reading at a slightly complex
level. The undersigned does not find this compatible with the
residual functional capacity noted above.”
(Id.). However, the ALJ found that Plaintiff could
perform other jobs and was, therefore, not disabled. (Tr.
filed a request for review of the ALJ's decision with the
SSA Appeals Council, which denied review on April 30, 2015.
(Tr. 12, 1-6). Plaintiff has exhausted all administrative
remedies, and the ALJ's decision stands as the SSA's
final decision. Sims v. Apfel, 530 U.S. 103, 106-07
Standard of Review
must affirm an ALJ's decision if it is supported by
substantial evidence. 42 U.S.C. § 405(g).
“Substantial evidence ‘is less than a
preponderance, but enough so that a reasonable mind might
find it adequate to support the conclusion.'”
Cruze v. Chater, 85 F.3d 1320, 1323 (8th Cir. 1996)
(quoting Boerst v. Shalala, 2 F.3d 249, 250 (8th
Cir. 1993)). In determining whether the evidence is
substantial, a court considers evidence that both supports
and detracts from the Commissioner's decision.
Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir.
2009). However, a court “do[es] not reweigh the
evidence presented to the ALJ and [it] defer[s] to the
ALJ's determinations regarding the credibility of
testimony, as long as those determinations are supported by
good reason and substantial evidence.” Renstrue v.
Astrue, 680 F.3d 1057, 1064 (8th Cir. 2012) (quoting
Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir.
after reviewing the record, the court finds it is possible to
draw two inconsistent positions from the evidence and one of
those positions represents the ALJ's findings, the court
must affirm the ALJ's decision.” Partee v.
Astrue, 638 F.3d 860, 863 (8th Cir. 2011) (quoting
Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir.
2005)). The Eighth Circuit has repeatedly held that a court
should “defer heavily to the findings and
conclusions” of the Social Security Administration.
Hurd v. Astrue, 621 F.3d 734, 738 (8th Cir. 2010);
Howard v. Massanari, 255 F.3d 577, 581 (8th Cir.
claims that substantial evidence does not support the
ALJ's determination that he is not disabled. Plaintiff
asserts the ALJ erred in: (1) finding that his foot fracture
was a non-severe impairment; (2) failing to find his foot
fracture an “additional and significant work-related
limitation of function” for purposes of Listing 12.05C;
(3) relying upon the VE's testimony that Plaintiff could
perform jobs requiring level two reasoning and language
abilities; and (4) failing to weigh the state agency
consultant's medical opinion. (ECF No. 14). In response,
Defendant asserts that the ALJ: (1) properly found that
Plaintiff's foot fracture was a non-severe impairment and
his impairments did not satisfy Listing 12.05(C); (2)
properly relied on the VE's testimony; and (3) did not
err in failing to discuss the state agency consultant's
medical opinion. (ECF No. 19).
Step 2 - severity of foot injury
first argues that the ALJ failed to properly consider his
foot fracture at step two of the sequential evaluation.
Defendant counters that the lack of treatment supported the
ALJ's determination that Plaintiff's foot fracture
two of the evaluation process, the ALJ must determine if a
claimant suffers from a severe impairment. Kirby v.
Astrue, 500 F.3d 705, 707 (8th Cir. 2007). See
also 20 C.F.R. § 416.920(a)(4)(ii). To demonstrate
that an impairment is severe, a claimant must show that he
has (1) a medically determinable impairment or combination of
impairments, which (2) “significantly limits [his]
physical or mental ability to do basic work activities,
” without regard to age, education, or work experience.
20 C.F.R. §§ 416.920(a)(4)(ii), (c); 416.921(a). An
impairment “is not severe if it does not significantly
limit [the claimant's] physical or mental ability to do
basic work activities.” 20 C.F.R. § 416.921(a).
See also Kirby, 500 F.3d at 707 (“An
impairment is not severe if it amounts only to a slight
abnormality that would not significantly limit the
claimant's physical or mental ability to do basic work
activities.”). Although a claimant has “the
burden of showing a severe impairment that significantly
limited [his] physical or mental ability to perform basic
work activities[, ]…the burden of a claimant at this
stage of the analysis is not great.” Caviness v.
Massanari, 250 F.3d 603, 605 (8th Cir. 2001). See
also Kirby, 500 F.3d at 708 (“Severity is not an
onerous requirement for the claimant to meet, but it is also
not a toothless standard.”).
hearing, Plaintiff appeared without an assistive device and
testified that he could walk approximately two blocks without
one. (Tr. 44). When the ALJ asked Plaintiff why he did not
“wear the boot so your foot could get better quicker?,
” Plaintiff answered, “[I]t did pretty well
without - there was too much pressure on it, and beside
[sic], it had worn out, and I didn't think to go back and
have them to reschedule me another one.” (Tr. 43).
Plaintiff had not acquired a replacement boot but rather was
“trying to make it work on my own” and used a
“pusher” when he was “out and about.”
(Id.). Plaintiff testified that a doctor at
Barnes-Jewish Hospital prescribed the “pusher.”
medical records demonstrate that he first presented to the
emergency room for his foot fracture on November 29, 2011.
(Tr. 562). Plaintiff stated that he was the victim of an
assault and reported “pain to right foot, thinks it may
have been stepped on, now difficult to walk.”
(Id.). An x-ray of his foot revealed a
“Lisfranc fracture-dislocation injury of the right foot
with lateral subluxation of the 2nd through
4th metatarsal heads and widening of the Lisfranc
joint. There are likely fractures through the bases of the
first and fourth metatarsal heads. Additional fractures are
also likely present . . . .” (Tr. 573-74). Plaintiff
underwent open reduction and internal fixation surgery on
December 2, 2011. (Tr. 625-26). He returned to the emergency
room for a wound check on December 12, 2011 and the removal
of his sutures on December 16, 2011. (Tr. 541-48, 709-11).
January 9, 2012, Plaintiff presented to the emergency room
for pain in his right foot. (Tr. 686-88). Plaintiff reported
that “someone stomped on [my foot] and I had to have
surgery in early December. Now I ran out of my pain
medication and I missed a follow up appointment because of
the weather.” (Id.) The emergency room
physician noted that Plaintiff “was supposed to be
non-weight[-]bearing but has been out of his moon boot,
ambulating.” (Tr. 690). The doctor discharged Plaintiff
with instructions to wear the moon boot, use crutches, and
remain non-weight-bearing. (Id.). Plaintiff received
a refill of his medication at Grace Hill Neighborhood Health
Services on January 20, 2012. (Tr. 676-78).
did not seek further treatment for his right foot until
October 22, 2012. (Tr. 680-83). Plaintiff reported
“pain on the right inside inner foot” and stated
that he had “been having problems since” his
surgery in December 2011. (Tr. 680). A nurse's note
stated: “Assistive devices: cane(s).” (Tr. 681).
Plaintiff left the hospital before seeing a physician. (Tr.
681, 683). At step two of the sequential evaluation process,
the ALJ reviewed the medical records relating to
Plaintiff's right foot and found that the “right
foot fracture do[es] not cause more than minimal limitations
in the claimant's ability to perform basic work
activities” and was therefore a non-severe impairment.
(Tr. 20-21). In formulating Plaintiff's RFC, the ALJ
discussed several reasons that are well-supported by the
record for finding that Plaintiff's foot fracture had
minimal effect on his ability to work. First, the ALJ noted
that Plaintiff's “limited treatment for [this]
impairment strongly supports a finding that [it] is not
limiting.” (Tr. 24). The ALJ acknowledged that
Plaintiff “has financial constraints which may limit
his treatment, ” but concluded “the claimant is
aware of low-cost to free options which are available to him,