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Neeley v. Berryill

United States District Court, W.D. Missouri, Western Division

September 14, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Roger Neeley petitions for review of an adverse decision by Defendant, the Acting Commissioner of Social Security (“Commissioner”). Plaintiff applied for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. The administrative law judge (“ALJ”) found Plaintiff had multiple severe impairments, including status post right rotator cuff repair, asthma/shortness of breath, and obesity, but retained the residual functional capacity (“RFC”) to perform work as a cashier, folding machine operator, or bench assembler.

         Because the Court cannot determine whether the ALJ's decision is supported by substantial evidence, this matter is REMANDED to the Commissioner for further proceedings.

         Procedural and Factual Background

         The complete facts and arguments are presented in the parties' briefs and are repeated here only to the extent necessary.

         Plaintiff filed the pending application on September 12, 2013, alleging a disability onset date of September 9, 2012. The Commissioner denied the application at the initial claim level, and Plaintiff appealed the denial to an ALJ. On May 6, 2015, the ALJ held a hearing and on June 9, 2015, the ALJ issued a decision finding Plaintiff was not disabled. The Appeals Council denied Plaintiff's request for review on June 10, 2016, leaving the ALJ's decision as the Commissioner's final decision. Plaintiff has exhausted all administrative remedies and judicial review is now appropriate under 42 U.S.C. § 405(g).

         Standard of Review

         A federal court's review of the Commissioner's decision to deny disability benefits is limited to determining whether the Commissioner's findings are supported by substantial evidence on the record as a whole. Andrews v. Colvin, 791 F.3d 923, 928 (8th Cir. 2015). Substantial evidence is less than a preponderance, but enough evidence that a reasonable mind would find it sufficient to support the Commissioner's decision. Id. In making this assessment, the court considers evidence that detracts from the Commissioner's decision, as well as evidence that supports it. Id. The court must “defer heavily” to the Commissioner's findings and conclusions. Wright v. Colvin, 789 F.3d 847, 852 (8th Cir. 2015). The court may reverse the Commissioner's decision only if it falls outside of the available zone of choice; a decision is not outside this zone simply because the evidence also points to an alternate outcome. Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011).


The Commissioner follows a five-step sequential evaluation process[1] to determine whether a claimant is disabled, that is, unable to engage in any substantial gainful activity by reason of a medically determinable impairment that has lasted or can be expected to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A).

         Plaintiff argues the ALJ erred by failing to include certain mental limitations in his RFC, and compounded this error in relying on vocational expert (“VE”) testimony elicited in response to flawed hypotheticals. The Court agrees it is unclear whether substantial evidence supports Plaintiff's RFC and the hypotheticals posed to the VE.[2]

         An RFC is the most a claimant can still do despite his physical or mental limitations. See 20 C.F.R. § 404.1545(a)(1). An ALJ should consider “‘all the evidence in the record' in determining the RFC, including ‘the medical records, observations of treating physicians and others, and an individual's own description of [his] limitations.'” Stormo v. Barnhart, 377 F.3d 801, 807 (8th Cir. 2004) (quoting Krogmeier v. Barnhart, 294 F.3d 1019, 1023 (8th Cir. 2002)). If the RFC assessment conflicts with an opinion from a medical source, the ALJ must explain why the opinion was not adopted. SSR 96-8P, 1996 WL 374184, at *7 (July 2, 1996). After formulating the RFC, the ALJ must determine whether a claimant “ha[s] the RFC to perform other kinds of work, and [whether] jobs that he could perform exist in substantial numbers in the national economy.” Lauer v. Apfel, 245 F.3d 700, 703 (8th Cir. 2001). To make this determination, the Commissioner “may rely on a vocational expert's response to a properly formulated hypothetical question to meet her burden of showing that jobs exist in significant numbers which a person with the claimant's [RFC] can perform.” Sultan v. Barnhart, 368 F.3d 857, 864 (8th Cir. 2004). But testimony from a vocational expert constitutes substantial evidence only when based on a properly-phrased hypothetical question that comprehensively describes the limitations on a claimant's ability to function in the workplace. Gann v. Berryhill, No. 16-2168, 2017 WL 3197610, at *3 (8th Cir. July 28, 2017) (citing Tucker v. Barnhart, 363 F.3d 781, 784 (8th Cir. 2004); Smith v. Shalala, 31 F.3d 715, 717 (8th Cir. 1994)).

         Here, the ALJ considered the medical opinions of Dr. Martin Isenberg, Ph.D. (“Dr. Isenberg”), and licensed psychologist John Keogh, M.A. (“Mr. Keogh”) in determining Plaintiff's RFC. Specifically, the ALJ gave “great weight” to: (1) Dr. Isenberg's opinion that Plaintiff's depression is “non-severe”; and (2) Mr. Keogh's opinion that Plaintiff “has only mild impairment in his ability to interact socially in an appropriate manner and to sustain concentration, be persistent in tasks, and maintain an adequate pace in productive activity.” R. at 21 (citing R. at 343). He found Mr. Keogh's opinion supported by a mental status examination and the effectiveness of medication in treating Plaintiff's symptoms. R. at 21. The ALJ also assessed mild limitations in activities of daily living, social functioning, and concentration, persistence, or pace at Step Two of the evaluation. R. at 17. After consideration of the evidence, the ALJ determined Plaintiff had the RFC to perform light work, except:

he can lift, carry, push, and pull 20 pounds occasionally and 10 pounds frequently; stand and walk 6 hours out of an 8-hour day with normal breaks; sit 8 hours out of an 8-hour day; cannot work above shoulder bilaterally; cannot forcefully grasp or twist; however, ordinary manipulation is not limited; cannot climb ladders, ropes, or scaffolds; cannot crawl; otherwise, all postural can be performed ...

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