United States District Court, W.D. Missouri, Central Division
ORDER AND OPINION REVERSING COMMISSIONER'S FINAL
DECISION DENYING BENEFITS AND REMANDING FOR FURTHER
D. SMITH, SENIOR JUDGE UNITED STATES DISTRICT COURT.
is Plaintiff's appeal of the Commissioner of Social
Security's decision denying his application for
disability insurance benefits. The Commissioner's
decision is reversed, and the case is remanded for further
Administrative Law Judge (“ALJ”) set forth a
residual functional capacity (“RFC”) that is not
supported by the substantial evidence in the record. The ALJ
found Plaintiff has the following severe impairments:
“low back pain and degenerative joint disease secondary
to an all-terrain vehicle accident with neuropathy and spinal
abscesses.” R. at 18. The ALJ determined Plaintiff has
an RFC “to perform the full range of light work as
defined in 20 C.F.R. § 404.1567(b).” R. at 20. In
formulating Plaintiff's RFC, the ALJ gave the opinion of
a consultative examiner, who found Plaintiff had no
limitations, “no weight because [it is] completely
contrary to the rest of the record.” R. at 26.
Nonetheless, the ALJ found “no reason to attack the
[examiner's] clinical findings, ” because they were
consistent with an absence of treatment in the eight to nine
month period prior to Plaintiff's hearing. Id.
The ALJ gave some weight to the opinion of Plaintiff's
treating physician, Dr. Jones, due to a lack of treatment in
the eight to nine months prior to the hearing. Id.
reported he had to retire early due to injuries sustained in
an all-terrain vehicle accident. R. at 21. As a result,
Plaintiff's pension was considerably smaller than
planned, and “nearly his entire pension payment goes
towards” health insurance premiums, and he cannot
afford co-pays. Id. The ALJ determined Plaintiff
used tobacco products and could have diverted money to his
co-pays rather than purchase tobacco products. R. at 26. This
finding was based on one reference in the consultative
examiner's notes, but the notes do not specify when this
tobacco use occurred. R. at 537. However, the record
indicates Plaintiff has not used tobacco products for many
years. R. at 105, 311, 371-72, 385, 364, 442, 444, 446, 448,
450, 452, 454, 456, 511.
the ALJ relied on an absence of prescription refills by Dr.
Jones in the eight to nine months prior to the hearing to
create Plaintiff's RFC. R. at 24. “While a claimant
for benefits has the burden of proving a disability, the
Secretary has the duty to develop the record fully and
fairly, even if...the claimant is represented by
counsel.” Boyd v. Sullivan, 960 F.2d 733, 736
(8th Cir. 1992) (citation and internal quotation omitted).
While a lack of office visits or medications may support the
ALJ's ultimate decision in this matter, the ALJ has a
duty to investigate and more fully develop the record
regarding whether Plaintiff received medications without
office visits during the eight to nine months before the
finding Plaintiff had an RFC for light work consistent with
his past relevant work, the ALJ described Plaintiff's
daily activities as “fairly active.” R. at 21.
This description is not consistent with the function report
completed by Plaintiff in which he describes an ability to
walk for only five to ten minutes at a time, tinkering with
his hobby of sign painting only when his pain level
permitted, and an inability to drive for over an hour without
severe pain. R. at 224-25. Plaintiff also states he is
unable to, among other things, tie his shoes, take a bath
alone, do yard work, perform his job, pick up his
grandchildren, and sleep without having back spasms. R. at
225. The record suggests, particularly Plaintiff's
testimony, function report, and statements by Dr. Jones, the
presence of some limitations on Plaintiff's physical
abilities. Yet, the RFC contained no physical limitations, a
finding that is not harmonious with the record.
remand, the ALJ must:
a. carefully consider the credibility of Plaintiff's
subjective complaints of pain and any medication or treatment
received in the eight to nine months prior to the hearing.
The ALJ must also consider how Plaintiff's financial
situation may have affected his ability to seek treatment in
that time period. The ALJ should contact Dr. Jones, if
b. set forth an RFC that includes limitations related to
Plaintiff's physical conditions, including but not
limited to Plaintiff's low back pain and degenerative
joint disease, which the ALJ found to be severe impairments,
as well as the other physical conditions alleged by Plaintiff
and found by the ALJ (i.e., a syncopal episode, hearing loss,
bilateral shoulder osteoarthritis, small hiatal hernia,
slight coronary artery disease, and mild emphysematous
changes) to the extent that any/all of these physical
conditions are supported by substantial evidence of the
record and impact Plaintiff's ability to work.
c. assess Plaintiff's credibility, accounting for
Plaintiff's work history and attempts to return to work,
daily activities, subjective complaints of pain after
undergoing physical therapy, and any other pertinent
the extent the ALJ finds Plaintiff can return to his past
work as an automobile repair service estimator, the ALJ must
make findings of fact regarding the physical and mental
demands of Plaintiff's previous job.