United States District Court, E.D. Missouri, Southeastern Division
MEMORANDUM AND ORDER
PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE.
Karla Kemmett seeks review of the decision of Social Security
Commissioner, Nancy Berryhill, denying her applications for
Disability Insurance Benefits and Supplemental Security
Income under the Social Security Act. The Court has reviewed the
parties' briefs and the administrative record, including
the hearing transcript and medical evidence. For the reasons
set forth below, the case is reversed and remanded.
Factual and Procedural Background
filed applications for Disability Insurance Benefits and
Supplemental Security Income on March 25, 2013. (Tr. 222-25,
229-36). In her applications, Plaintiff claimed she was
disabled as of September 18, 2010 as a result of: seizures,
bipolar disorder, depression, migraines, fibromyalgia, heart
flutter, thyroid problems, anxiety and panic attacks, low
coping skills, difficulty concentrating, dependent
personality disorder, borderline personality disorder,
post-traumatic stress disorder (PTSD), asthma, and hearing
loss in her right ear. (Tr. 97-98). The Social Security
Administration (SSA) denied Plaintiff's claims, and she
filed a timely request for a hearing before an administrative
law judge (ALJ). (Tr. 124, 132-33).
granted Plaintiff's request for review, and an ALJ
conducted a hearing on June 26, 2014. (Tr. 40-75). At the
hearing, Plaintiff testified that she was forty-two years
old, had a high school diploma, and lived alone. Plaintiff
stated that she worked for sixteen years as a customer
service manager at Wal-Mart, and she stopped working after
“back to back” seizures on September 18, 2010.
(Tr. 45, 67-68). Plaintiff explained that her mother
“takes care of” her medicine and confirmed that
she was taking: Lamictal, Topamax, “thyroid medicines,
” “hormone replacement, ” fluoxetine,
Vistaril, Flonase, Singulair, Maxalt, meloxicam, loratadine,
Frova, and Abilify. (Tr. 45-47).
testified that she had been receiving continuous mental
health care, including therapy and medicine management, for
the past “three or four years[.]” (Tr. 48). She
also attended a weekly support group for people with
depression and bipolar disorder and was recently hospitalized
for mental health problems. (Tr. 51, 54). In addition to her
depression, Plaintiff described “fibro fog, ” and
problems with her memory, concentration, and word retrieval.
(Tr. 54-55). She had difficulty sleeping and, even with
“sleeping medicine, ” only slept about three or
four hours per night. (Tr. 52).
testified that she had not suffered a seizure in the past two
years. (Tr. 48). Plaintiff continued to suffer migraines once
or twice a week, and the migraines kept her in bed for
“at least a good two days.” (Tr. 48). Depending
on the severity of the migraine, Plaintiff would either go to
Kniebert Clinic for “a shot” or “take a
pill, ” alternating between Maxalt and Frova. (Tr. 49).
regard to her fibromyalgia, Plaintiff testified “I
can't lift a lot. I can't do a lot of things. I can
sit a little bit then have to stand a little bit, and lay
down a little bit. I just hurt all the time.” (Tr. 50).
Plaintiff explained that she did not take any medications
specifically for her fibromyalgia because “Dr. Nagy
says that it will go against my seizure medicine. About the
only thing that I can take is the 800 ibuprofen, ”
which did “[n]ot really” help. (Tr. 50-51).
Plaintiff had not discussed other possibilities with her
neurologist, Dr. Godbey, who treated her for seizures. (Tr.
stated that, on a typical day, she might arise at 3:00 a.m.
or 6:00 a.m., depending on her sleep the night before. (Tr.
52). Plaintiff would “sometimes” read the Bible,
but not “very long because my attention span is not
good, ” and played with her cats. (Tr. 52). Plaintiff
occasionally visited her mother and had “friends that
come by and check on me. . . . I'm not able to clean my
house, or take care of the cats. So I'm very blessed to
have my mom and friends to come by and do that for me.”
(Tr. 53). Plaintiff was able to sort her laundry but
“somebody has to take it to the laundry room because I
can't lift the baskets.” (Tr. 53-54).
would go to the grocery store “but I always have to
take my mom or somebody with me” because she could not
lift or carry the groceries. (Tr. 53, 54). Plaintiff went to
church twice a week. (Tr. 56). She explained that she was not
able to sit for the entire service, so “once I
can't sit in there anymore, I'll get up and walk
around and watch the TV out there [in the vestibule].”
(Tr. 55-56). In regard to exercise, Plaintiff stated:
“I walk when I can, but sometimes I just hurt too
bad.” (Tr. 54). The heaviest thing Plaintiff was able
to lift was “[m]aybe a gallon of milk.” (Tr. 56).
Plaintiff did not usually nap but needed to lie down two or
three times per day for thirty to ninety minutes. (Tr.
57-58). During the one-hour drive to the hearing, Plaintiff
stopped three times to get out of the car, stretch her legs,
and move her back. (Tr. 59). The transcript of the ALJ
hearing reflected that Plaintiff also asked to stand up about
mid-way through her testimony, and requested a break during
the vocational expert's testimony. (Tr. 54, 71).
psychologist, Dr. Michael Cremerius, testified as a medical
expert at the hearing. (Tr. 60- 68). Based on Plaintiff's
testimony and medical records, he diagnosed Plaintiff with
“cognitive impairments, ” “depression
and/or bipolar disorder, ” and dependent personality
disorder. (Tr. 61-62). Dr. Cremerius opined that
Plaintiff's impairments caused moderate limitations in
activities of daily living, social functioning, and
concentration, persistence, and pace. (Tr. 61-62). Dr.
Cremerius noted “one period of decompensation, ”
which was “a two-day psychiatric admission.” (Tr.
Dr. Cremerius noted that Plaintiff's primary care
physician described her as “profoundly symptomatic,
” her neurologist described her “as marked to
extremely limited and symptomatic, ” and her social
worker described her as “markedly limited and
symptomatic, ” Dr. Cremerius found “it  hard to
understand how they come up with these restrictions.”
(Tr. 63). According to his reading of Plaintiff's
records, Plaintiff's bipolar disorder, generalized
anxiety disorder, and PTSD were stable and her symptoms were
generally mild. (Tr. 63). Dr. Cremerius theorized that
“these [medical professionals] are describing - not
only psychological but physical [restrictions] as well . . .
a vocational expert testified at the hearing. (Tr. 69-75).
The ALJ asked the vocational expert to consider a
hypothetical individual with Plaintiff's age, education,
and work experience and the ability to: lift twenty pounds
occasionally and ten pounds frequently; stand and/or walk six
hours in an eight-hour work day; sit eight hours in an
eight-hour work day; occasionally climb ramps and stairs;
avoid climbing ladders, ropes, and scaffolds and working
around unprotected height and machinery; occasionally stoop,
kneel, crouch, and crawl; and perform simple and or
repetitive work that did not require interaction with the
public or co-workers. (Tr. 70-71). The vocational expert
testified that such person could perform the jobs of laundry
worker or machine tender. (Tr. 71). When the ALJ limited the
hypothetical individual to lifting no more than ten pounds
and standing or walking two hours in an eight-hour day, the
vocational expert testified that he or she could perform
sedentary table worker, assembly, or machine feeding jobs.
(Tr. 72). However, the need to miss more than two days per
month or arrive late, leave early, or take additional breaks
at least once per week, would preclude competitive
employment. (Tr. 73). The need to lie down twice a day for
approximately thirty minutes would also preclude employment.
decision of August 15, 2014, the ALJ applied the five-step
evaluation set forth in 20 C.F.R. §§ 404.1520,
416.920 and found that Plaintiff “has not
been under a disability, as defined in the Social Security
Act, from February 13, 2013, through the date of this
decision[.]” (Tr. 13-25). The ALJ found that Plaintiff
had the following severe impairments: bipolar disorder, PTSD,
personality disorder, fibromyalgia, migraine headaches, and
seizure disorder. (Tr. 16).
reviewing the testimony and the medical records, the ALJ
found that Plaintiff's “allegation that her
impairments, either singly or in combination, produce
symptoms and limitations of a severity to prevent all
sustained work activity is not credible.” (Tr. 21). The
ALJ determined that Plaintiff had the residual functional
capacity (RFC) to:
perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) except for lifting or carrying more than 20 pounds
occasionally and 10 pounds frequently; standing or walking
more than 6 hours in an 8-hour workday with normal work
breaks; sitting more than 6 hours in an 8-hour workday; no
climbing ladders, ropes, or scaffolds; climbing ramps or
stairs, stooping, kneeling, crouching or crawling more than
occasionally; avoid exposure to hazards (unprotected heights
or dangerous machinery); and performing more than simple,
routine tasks with no close interaction with the public or
(Tr. 20). Finally, the ALJ found that Plaintiff was unable to
perform any past relevant work but could perform other jobs
that existed in significant numbers in the national economy.
filed a request for review of the ALJ's decision with the
SSA Appeals Council, which denied review on January 5, 2016.
(Tr. 1-6, 299-308). 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 (2000).
Standard of Review
must affirm an ALJ's decision if it is supported by
substantial evidence on the record as a whole. 42 U.S.C.
§ 405(g); Buford v. Colvin, 824 F.3d 793, 795
(8th Cir. 2016). “Substantial evidence is less than a
preponderance, but enough that a reasonable mind would find
it adequate to support the ALJ's determination.”
Buford, 824 F.3d at 795 (quoting Guilliams v.
Barnhart, 393 F.3d 798, 801 (8th Cir. 2005)). 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. 2006)).
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 finding that she was not disabled because the ALJ
failed to assign proper weight to the medical opinions of
Plaintiff's primary care physician, neurologist, and
social worker. (ECF No. 17). More specifically, Plaintiff
argues that the opinions of these treating sources were
entitled to controlling or, at least great, weight and the
ALJ failed to provide “good reasons” for
assigning them little weight. According to Plaintiff, had the
ALJ properly credited their opinions regarding her physical
and mental limitations, the ALJ would have found her
disabled. The Commissioner counters that the ALJ assigned the
medical opinion evidence proper weight and substantial
evidence supported the ALJ's conclusion that Plaintiff
was not disabled. (ECF No. 22).
Court first considers the weight that the ALJ assigned to the
medical opinions of Plaintiff's treating physicians. A
treating physician's opinion regarding a plaintiff's
impairments is entitled to controlling weight where
“the opinion is well supported by medically acceptable
clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in the
record.” Singh v. Apfel, 222 F.3d 448, 452
(8th Cir. 2000). Even if the opinion is not entitled to
controlling weight, it should not ordinarily be disregarded
and is entitled to substantial weight. Id. This rule
is premised, at least in part, on the notion that the
treating physician is usually more familiar with a
claimant's medical condition than are other physicians.
See 20 C.F.R. §§ 404.1527(c), 416.927(c);
Thomas v. Sullivan,928 F.2d 255, 259 n.3 (8th