Middleton v. Berryhill

          RECOMMENDED DISPOSITION

         This Recommended Disposition (Recommendation) has been sent to Judge James M. Moody Jr. Any party may file written objections to this Recommendation. Objections should be specific and should include the factual or legal basis for the objection.

         To be considered, objections must be received in the office of the Court Clerk within 14 days of this Recommendation. If no objections are filed, Judge Moody can adopt this Recommendation without independently reviewing the record. By not objecting, parties may also waive any right to appeal questions of fact.

         I. Background

         Charles Middleton applied for social security disability benefits with an amended alleged onset date of January 9, 2016. (R. at 91). After a hearing, the administrative law judge (ALJ) denied his application. (R. at 22). Subsequently, the Appeals Council denied his request for review. (R. at 1). The ALJ's decision now stands as the Commissioner's final decision, and Mr. Middleton has requested judicial review.

         II. The Commissioner's Decision

         The ALJ found that Mr. Middleton had the following severe impairments: history of cervical spinal fusion, lumbar degenerative disk disease, mild osteoarthritis of the left shoulder, and obesity. (R. at 14). After finding that Mr. Middleton's impairments did not meet or equal a listed impairment, the ALJ determined that Mr. Middleton had the residual functional capacity (RFC) to perform light work, except that he could not perform overhead reaching or constant stooping. (R. at 16). This RFC precluded Mr. Middleton from performing his past relevant work. (R. at 20).

         The ALJ took testimony from a vocational expert (VE), who testified that a person with Mr. Middleton's age, education, work experience, and RFC could perform jobs such as cashier II or sales attendant. (R. 21). Based on this testimony, the ALJ held that Mr. Middleton was not disabled. (R. at 21-22).

         III. Discussion

         Mr. Middleton argues that the RFC determined by the ALJ is not supported by substantial evidence in the record as a whole; that the ALJ failed to identify functional limitations arising from his obesity; that the ALJ failed to perform a function-by-function analysis; that the ALJ failed to properly resolve a conflict between the VE's testimony and the Dictionary of Occupational Titles; and that the ALJ failed to provide good reason for finding that allegations of pain were inconsistent with the medical evidence. As set out below, the ALJ's determination of Mr. Middleton's RFC is not supported by substantial evidence upon consideration of the record as a whole.

         In this appeal, the Court must review the Commissioner's decision for legal error and assure that the decision is supported by substantial evidence on the record as a whole. Brown v. Colvin, 825 F.3d 936, 939 (8th Cir. 2016) (citing Halverson v. Astrue, 600 F.3d 922, 929 (8th Cir. 2010)). Stated another way, the decision must rest on enough evidence that “a reasonable mind would find it adequate to support [the] conclusion.” Halverson, 600 F.3d at 929. The Court will not reverse the decision, however, solely because there is evidence to support a conclusion different from that reached by the Commissioner. Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir. 2006).

         The ALJ gave some weight to every medical opinion in the record. Consultative examiner Garry Stewart, M.D. found no physical limitations. (R. at 557-63). Nichole Clark, A.P.R.N., a treating source, stated that Mr. Middleton should not work more than twenty-five hours per week and that conservative treatment had failed. (R. at 564). She later opined that Mr. Middleton could only sit three hours in an eight-hour day and stand two hours in an eight-hour day. Ms. Clark also opined that Mr. Middleton would be limited to lifting or carrying ten pounds; could never squat; and could only occasionally bend, crawl, crouch, climb, stoop, or kneel. (R. at 579-81).

         The ALJ stated that Nurse Clark had opined that Mr. Middleton could “work around a light exertional level, ” but her exact phrasing was “light duty, ” and that statement was in the same opinion in which she indicated that he could sit for only three hours and stand for only two hours in an eight-hour day and could lift no more than ten pounds. (R. at 581). It is clear from this context that she was not using the word “light” to refer to a light exertional level as defined by the Social Security Administration. J. Michael Calhoun, M.D., a treating physician, indicated that Mr. Middleton could and sit for four hours and stand or walk for four hours in an eight-hour workday; lift or carry up to twenty-five pounds; and could never bend, squat, crawl, crouch, climb, stoop, or kneel. (R. at 590-92). The non-examining State Agency consultants opined that Mr. Middleton could lift or carry up to twenty pounds; stand and/or walk for six hours in an eight-hour day; sit for six hours in and eight-hour workday; and occasionally climb, balance, stoop, kneel, crouch, or crawl. (R. at 124-25, 139-40). The State Agency consultants also opined that Mr. Middleton should avoid even moderate exposure to fumes, odors, dusts, gases, and poor ventilation. (R. at 126, 140).

         There are several problems with the ALJ's RFC determination. As Mr. Middleton notes, he has a medically determinable impairment of chronic obstructive pulmonary disease (COPD). (R. at 434). The ALJ found that Mr. Middleton's COPD was a non-severe impairment. (R. at 14). The ALJ is required to consider what a claimant is capable of in consideration of all impairments, both severe and non-severe. Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008). Mr. Middleton argues that the ALJ failed to include limitations occasioned by his COPD.

         The Commissioner cites the ALJ's statement that he took all of Mr. Middleton's symptoms into consideration and relies on the presumption of regularity to argue that the ALJ considered all of Mr. Middleton's impairments. Wilburn v. Astrue, 626 F.3d 999, 1003 (8th Cir. 2010). The Commissioner does not identify any limitations, however, that account for Mr. Middleton's COPD. Furthermore, even the non-examining State Agency consultants opined that Mr. Middleton should have limitations related to pulmonary irritants. (R. at 126, 140). Because the ALJ did not account for Mr. ...