Case Name in Social Security Case - Unavailable

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
THOMAS C.1,
Plaintiff,
vs.
KILOLO KIJAKAZI, ACTING
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION;
Defendant.
5:21-CV-05014-DW
REDACTED ORDER
INTRODUCTION
On March 5, 2021, claimant Thomas C. filed a complaint appealing the
final decision of Andrew Saul2, the acting Commissioner of the Social Security
Administration, finding him not disabled. (Doc. 1). Defendant denies claimant
is entitled to benefits. (Doc. 12). 	The court issued a briefing schedule requiring
the parties to file a joint statement of materials facts (“JSMF”). 	(Doc. 14). 	For
1 The Administrative Office of the Judiciary suggested the court be more
mindful of protecting from public access the private information in Social
Security opinions and orders. 	For that reason, the Western Division of the
District of South Dakota will use the first name and last initial of every non-
governmental person mentioned in the opinion. 	This includes the names of
non-governmental parties appearing in case captions.
2 Dr. Kilolo Kijakazi became the Acting Commissioner of Social Security on July
9, 2021. 	Pursuant to Fed. R. Civ. P. 25(d), Dr. Kijakazi is automatically
substituted for Andrew Saul as the defendant in all pending social security
cases. 	No further action need be taken to continue this suit by reason of the
last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g).
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the reasons stated below, claimant’s motion to reverse the decision of the
Commissioner (Doc. 20) is granted.
FACTS AND PROCEDURAL HISTORY
The parties’ JSMF (Doc. 15) is incorporated by reference. 	Further
recitation of the salient facts is incorporated in the discussion section of this
order.
On September 1, 2017, Mr. C. filed an application for Social Security
disability benefits alleging an onset of disability date of May 1, 2016. 	(AR at p.
23).3 The claim was initially denied on December 28, 2017, and denied upon
reconsideration on May 23, 2018. 	(AR at p. 23). 	Mr. C. requested an
administrative hearing on June 5, 2018, and one was held on February 26,
2020. 	(AR at p. 23). 	On April 7, 2020, the ALJ issued a written decision
denying benefits. 	(AR at pp. 20-38). 	Mr. C. subsequently sought appellate
review; his request was denied, making the decision of the ALJ final. 	(AR at p.
1). 	It is from this decision that Mr. C. timely appeals.
The issue before this court is whether the Administrative Law Judge’s
(ALJ) decision of April 7, 2020, that Mr. C. was not “under a disability, as
defined in the Social Security Act, from May 1, 2016, through [April 7, 2020]” is
supported by substantial evidence on the record as a whole. 	(AR at p. 38). 	See
also Howard v. Massanari, 255 F.3d 577, 580 (8th Cir. 2001).
3 The court will cite to information in the administrative record as “AR at p.
___.”
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STANDARD OF REVIEW
The Commissioner’s findings must be upheld if they are supported by
substantial evidence in the record as a whole. 	42 U.S.C. § 405(g); Choate v.
Barnhart, 457 F.3d 865, 869 (8th Cir. 2006); Howard, 255 F.3d at 580. 	The
court reviews the Commissioner’s decision to determine if an error of law was
committed. 	Smith v. Sullivan, 982 F.2d 308, 311 (8th Cir. 1992). 	“Substantial
evidence is less than a preponderance, but is enough that a reasonable mind
would find it adequate to support the Commissioner’s conclusion.” 	Cox v.
Barnhart, 471 F.3d 902, 906 (8th Cir. 2006) (internal citation and quotation
marks omitted).
The review of a decision to deny benefits is “more than an examination of
the record for the existence of substantial evidence in support of the
Commissioner’s decision . . . [the court must also] take into account whatever
in the record fairly detracts from that decision.” 	Reed v. Barnhart, 399 F.3d
917, 920 (8th Cir. 2005) (quoting Haley v. Massanari, 258 F.3d 742, 747 (8th
Cir. 2001)).
It is not the role of the court to re-weigh the evidence and, even if this
court would decide the case differently, it cannot reverse the Commissioner’s
decision if that decision is supported by good reason and is based on
substantial evidence. 	Guilliams v. Barnhart, 393 F.3d 798, 901 (8th Cir.
2005). 	A reviewing court may not reverse the Commissioner’s decision “‘merely
because substantial evidence would have supported an opposite decision.’”
Reed, 399 F.3d at 920 (quoting Shannon v. Chater, 54 F.3d 484, 486 (8th Cir.
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1995)). 	Issues of law are reviewed de novo with deference given to the
Commissioner’s construction of the Social Security Act. 	See Smith, 982 F.2d
at 311.
The Social Security Administration established a five-step sequential
evaluation process for determining whether an individual is disabled and
entitled to benefits under Title XVI. 	20 CFR § 416.920(a). 	If the ALJ
determines a claimant is not disabled at any step of the process, the evaluation
does not proceed to the next step as the claimant is not disabled. 	Id. 	The five-
step sequential evaluation process is:
(1) Whether the claimant is presently engaged in a “substantial
gainful activity”; 	(2) whether the claimant has a severe impairment
– one that significantly limits the claimant’s physical or mental
ability to perform basic work activities; 	(3) whether the claimant
has an impairment that meets or equals a presumptively disabling
impairment listed in the regulations (if so, the claimant is disabled
without regard to age, education, and work experience); 	(4)
whether the claimant has the residual functional capacity to
perform . . . 	past relevant work; and (5) if the claimant cannot
perform the past work, the burden shifts to the Commissioner to
prove there are other jobs in the national economy the claimant
can perform.
Baker v. Apfel, 159 F.3d 1140, 1143–44 (8th Cir. 1998); see also Boyd v.
Sullivan, 960 F.2d 733, 735 (8th Cir. 1992) (the criteria under 20 CFR
§ 416.920 are the same under 20 CFR § 404.1520 for disability insurance
benefits).
The ALJ applied the five-step sequential evaluation required by the Social
Security Administration regulations and found Mr. C. was not disabled. 	(AR at
pp. 23-38).
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DISCUSSION
Mr. C. identifies the following issues: (1) whether the ALJ’s residual
functional capacity (RFC) finding is not supported by substantial evidence; (2)
whether the ALJ’s credibility determination is not supported by substantial
evidence; (3) whether the ALJ erred in failing to find that Mr. C. met or equaled
Listing 4.02 for cardiovascular impairments; and (4) whether the Commissioner
erred by not considering new evidence. 	(Doc. 20).
STEP ONE
At step one, the ALJ determined Mr. C. “has not engaged in substantial
gainful activity since May 1, 2016, the alleged onset date” of disability. 	(AR at
p. 26).
STEP TWO
At step two, the ALJ must decide whether the claimant has a medically
determinable impairment that is severe or a combination of impairments that
are severe. 	20 CFR § 404.1520(c). 	A medically determinable impairment can
only be established by an acceptable medical source. 	20 CFR § 404.1513(a).
Accepted medical sources include, among others, licensed physicians. 	Id. 	“It
is the claimant’s burden to establish that [his] impairment or combination of
impairments are severe.” 	Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007).
The regulations describe “severe impairment” in the negative. 	“An
impairment or combination of impairments is not severe if it does not
significantly limit your physical or mental ability to do basic work activities.”
20 CFR § 404.1521(a). 	An impairment is not severe, however, if it “amounts to
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only a slight abnormality that would not significantly limit the claimant’s
physical or mental ability to do basic work activities.” 	Kirby, 500 F.3d at 707.
Thus, a severe impairment is one which significantly limits a claimant’s
physical or mental ability to do basic work activities.
The ALJ determined Mr. C. suffered from the following severe
impairments: (1) Crohn’s disease; (2) congestive heart failure; (3) coronary
arterial disease status post myocardial infarction; (4) tachycardia; and (5)
anxiety. 	(AR at pp. 26-27). 	Mr. C. does not challenge this finding. 	(Doc. 20).
STEP THREE
At step three, the ALJ determines whether claimant’s impairment or
combination of impairments meets or medically equals the criteria of an
impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 (“Appendix 1”).
20 CFR §§ 404.1520(d), 404.1525, and 404.1526. 	If a claimant’s impairment
or combination of impairments meets or medically equals the criteria for one of
the impairments listed and meets the duration requirement of 20 CFR §
404.1509, the claimant is considered disabled. 	At that point, the
Commissioner “acknowledges [the impairment or combination of impairments]
are so severe as to preclude substantial gainful activity. . . . [and] the claimant
is conclusively presumed to be disabled.” 	Bowen v. Yuckert, 482 U.S. 137, 141
(1987).
The ALJ determined Mr. C. did not have an impairment or combination
of impairments which met or were medically equal to one of the impairments
listed in Appendix 1. 	(AR at pp. 27-29).
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Mr. C. objects to the ALJ’s finding at Step 3. 	(Doc. 20). 	He argues the
ALJ failed to consider and evaluate Listing 4.02, Chronic Heart Failure. 	(Doc.
20).
Listing 4.02 provides:
Chronic heart failure while on a regimen of prescribed treatment,
with symptoms and signs described in 4.00D2. 	The required level
of severity for this impairment is met when the requirements in
both A and B are satisfied.
A. Medically documented presence of one of the following:
1. Systolic failure (see 4.00D1a(i)), with left ventricular end
diastolic dimensions greater than 6.0 cm or ejection fraction of
30 percent or less during a period of stability (not during an
episode of acute heart failure); or
2. Diastolic failure (see 4.00D1a(ii)), with left ventricular posterior
wall plus septal thickness totaling 2.5 cm or greater on imaging,
with an enlarged left atrium greater than or equal to 4.5 cm,
with normal or elevated ejection fraction during a period of
stability (not during an episode of acute heart failure);
AND
B. Resulting in one of the following:
1. Persistent symptoms of heart failure which very seriously limit
the ability to independently initiate, sustain, or complete
activities of daily living in an individual for whom an MC,
preferably one experienced in the care of patients with
cardiovascular disease, has concluded that the performance of
an exercise test would present a significant risk to the
individual; or
2. Three or more separate episodes of acute congestive heart
failure within a conservative 12-month period (see 4.00A3e),
with evidence of fluid retention (see 4.00D2b(ii)) from clinical
and imaging assessments at the time of the episodes, requiring
acute extended physician intervention such as hospitalization
or emergency room treatment for 12 hours or more, separated
by periods of stabilization (see 4.00D4c); or
3. Inability to perform on an exercise tolerance test at a workload
equivalent to 5 METs or less due to:
a. Dyspnea, fatigue, palpitations, or chest discomfort; or
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b. Three or more consecutive premature ventricular
contractions (ventricular tachycardia), or increasing
frequency of ventricular ectopy with at least 6 premature
ventricular contractions per minute; or
c. 	Decrease of 10 mm Hg or more in systolic pressure below the
baseline systolic blood pressure or the preceding systolic
pressure measured during exercise (see 4.00D4d) due to left
ventricular dysfunction, despite an increase in workload; or
d. Signs attributable to inadequate cerebral perfusion, such as
ataxic gait or mental confusion.
20 C.F.R. Part 404, Subpart P, Appendix 1.
Mr. C. argues that he satisfies 4.02(A) because his “ejection fraction has
nearly always measured less than 30%” which is why a pacemaker was
implanted, and “[t]here have been no echocardiograms measuring his ejection
fraction since that time.” 	(Doc. 20). 	The Commissioner neither agrees nor
disagrees with Mr. C.’s argument regarding 4.02(A). 	(Doc. 24).
There is medical evidence in the record to satisfy 4.02(A). 	As to
4.02(A)(1), Mr. C.’s ejection fraction has almost always measured less than
30%. 	After his heart attack and hospitalization on July 18, 2016, his ejection
fraction was 30%-35% and 41%, but since August of 2017, his highest ejection
fraction has been 21%. 	(AR at pp. 381, 410, 417, 418, 663, 742). 	There have
been no echocardiograms measuring his ejection fraction since his automatic
implantable cardioverter defibrillator (AICD) was implanted on December 7,
2017. 	(AR. at p. 667). 	As such, Mr. C. meets the first requirement of 4.02.
As to 4.02(B), Mr. C. argues that he “cannot precisely satisfy the
requirements of 4.02(B) because he hasn’t been able to afford to see or treat
with [a] specialist, heart doctor, since his pacemaker was implanted in
December of 2017,” but the record shows he has significant limitations to
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activities of daily living due to his fatigue and limitations due to his heart
impairments, pursuant to 4.02(B)(1). 	(Doc. 20). 	Also, Mr. C. concedes he has
not had three or more separate episodes of acute heart failure within a 12-
month period, pursuant to 4.02(B)(2), and no doctor has rendered Mr. C.
unable to perform an exercise tolerance test, pursuant to 4.02(B)(3). 	(Doc. 20).
The Commissioner disagrees and argues that the listing requires objective
medical evidence, which is not present. 	(Doc. 24).
Mr. C.’s argument is one of medical equivalence. 	Medical equivalence
must be based on medical findings. 	Pursuant to 20 C.F.R. § 404.1526(b)(1)(ii),
“we will find that your impairment is medically equivalent to that listing if you
have other findings related to your impairment that are at least of equal
medical significance to the required criteria.” 	Here, the record lacks evidence
that Mr. C.’s congestive heart failure meets the second requirement of 4.02.
The record does not support Mr. C.’s argument that he was very
seriously limited in his daily activities. 	In Mr. C.’s function report from
September of 2017, he states he prepares his own meals, but only frozen meals
because he cannot stand over a stove for an extended period of time; is unable
to do house, yard work or shovel snow; does his own laundry about once a
month which takes him approximately three hours; can drive and go out by
himself; goes shopping at Walmart about every two weeks but his shopping is
limited to three to four items that are not in the back of the store; he can walk
for about one hundred feet before needing a five minute rest; and that he has
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no energy dressing, bathing, shaving, and caring for his hair. 	(AR at pp. 256-
263).
At the administrative hearing, Mr. C. testified that he can drive, has a
hard time getting through grocery shopping, takes care of all his own personal
needs (eating, dressing, and bathing), does his own laundry, but does not cook,
and spends approximately twelve hours per day on the computer. 	(AR at pp.
65-75). 	Mr. C.’s mother, Barb C. also testified at the administrative hearing.
She testified that Mr. C. does some household chores, does a lot of cooking and
helps her cook, does basically light things around the house such as taking the
garbage out and sweeping the floor. 	(AR at pp. 75-77).
The Eighth Circuit found a claimant did not satisfy the criteria in 4.02(B)
when the record included evidence that the claimant was able to drive, shop for
groceries, play video games and cards, take care of himself, look after his
children, help care for pets; and even though housework caused the claimant
to become fatigued, he could prepare simple meals, vacuum, wash dishes, do
laundry, take out the trash, and pick up toys. 	KKC v. Colvin, 818 F.3d 364,
370-71 (8th Cir. 2016). 	In addition, KKC’s congestive heart failure was
diagnosed as New York Heart Association (NYHA) Class III symptoms meaning
the claimant had “marked limitation in activity due to symptoms, even during
less-than-ordinary activity.” 	Id. at 373-74.
Here, like in KKC, Mr. C. drives, shops for groceries, spends
approximately twelve hours a day at the computer, takes care of himself,
prepares simple meals, does laundry, and helps with light housework such as
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taking out the garbage and sweeping the floor. 	However, unlike in KKC, Mr.
C.’s NYHA congestive heart failure is less severe, he is diagnosed as Class II
symptoms meaning “[s]light limitation of physical activity. Comfortable at rest.
Ordinary physical activity results in fatigue, palpitation, dyspnea (shortness of
breath).” 	Classes of Heart Failure, American Heart Association,
https://www.heart.org/en/health-topics/heart-failure/what-is-heart-
failure/classes-of-heart-failure (last visited June 2, 2022). 	(AR at pp. 125,
748). 	Thus, the record does not support that Mr. C. was very seriously limited
in his daily activities.
Also, the record does not support that a medical consultant concluded
an exercise test would have presented a significant risk to Mr. C. 	In fact, Dr.
Lessegard, in his Disability Determination Explanation Reconsideration in May
of 2018, noted Mr. C.’s NYHA Class II symptoms and that there was no
documentation of inability to perform an exercise test. 	(AR at pp. 125-26). 	As
such, Mr. C. does not meet the second requirement of 4.02.
The court finds that Mr. C.’s impairment did not meet Listing 4.02, so
the ALJ did not err in failing to consider and evaluate the listing.
STEP FOUR
Before considering step four of the evaluation process, the ALJ must
determine a claimant’s residual functioning capacity (“RFC”). 	20 CFR §§
404.1520(a)(4)(iv) & 404.1545. 	RFC is a claimant’s ability to do physical and
mental work activities on a sustained basis despite any limitations from his
impairments. 	20 CFR § 404.1545(a)(1). 	In making this finding, the ALJ must
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consider all of the claimant’s impairments, including those which are not
severe. 	20 CFR § 404.1545(e). 	All of the relevant medical and non-medical
evidence in the record must be considered. 	20 CFR § 404.1513.
In determining a claimant’s RFC, the ALJ considers any medical opinions
and claimant’s degree of functional limitation. 	20 CFR § 404.1545(a)(1), (4).
“Medical opinions are statements from physicians and psychologists or other
acceptable medical sources that reflect judgments about the nature and
severity of [claimant’s] impairment(s), including [claimant’s] symptoms,
diagnosis, and prognosis, and what [claimant] can still do despite the
impairment(s), and . . . physical or mental restrictions.” 	20 CFR § 404.1527(b).
In weighing medical opinion evidence, the ALJ must consider the factors set
forth in the regulations. 	20 CFR § 404.1527(c). 	An ALJ is not required to
discuss every piece of evidence, and their failure to cite specific evidence does
not mean they did not consider it. 	Craig v. Apfel, 212 F.3d 433, 436 (8th Cir.
2000).
Rating of functional limitation evaluates the extent to which impairment
“interferes with [claimant’s] ability to function independently, appropriately,
effectively, and on a sustained basis.” 	20 CFR § 404.1520a(c)(2).
Here, the ALJ concluded Mr. C.’s RFC permitted him to perform light
work4, stating:
4 “Light work involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. 	Even though the weight
lifted may be very little, a job is in this category when it requires a good deal of
walking or standing, or when it involves sitting more of the time with some
pushing and pulling of arm or leg controls. 	To be considered capable of
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[he] can lift and/or carry up to 10 pounds frequently and 20
pounds occasionally . . . can sit throughout an 8-hour workday
with normal breaks . . . can stand and/or walk about 6 hours in
an 8-hour workday with normal breaks . . . can never climb
ladders, ropes or scaffolds . . . can occasionally climb ramps or
stairs . . . can occasionally balance as defined in the Selected
Characteristics of Occupations . . . can occasionally stoop, kneel,
crouch or crawl . . . can tolerate occasional exposure to work
around hazards such as dangerous moving machinery and
unprotected heights . . . needs an indoor work environment with
indoor plumbing . . . is able to understand, remember and carry
out short, simple instructions . . . can occasionally interact
appropriately with coworkers and members of the public . . . can
respond appropriately to work pressures in a usual work setting
and changes in a routine work setting . . . can maintain attention
and concentration for routine work for 2-hour segments.
(AR at p. 30).
Mr. C. challenges this finding. 	(Doc. 20). 	Mr. C. argues the RFC is not
supported by substantial evidence and does not include the need for extra
bathroom breaks. 	(Doc. 20). 	He further argues there is sufficient medical
evidence that he cannot stand and/or walk six hours in an eight-hour workday
with normal breaks. 	(Doc. 20). 	Also, that it is well documented in the medical
records that his cardiac conditions impact his tolerances, and his ongoing
difficulty with fatigue and stamina to stand/walk the majority of an eight-hour
workday. 	(Doc. 20). 	The Commissioner argues there is substantial evidence to
support the ALJ’s RFC. 	(Doc. 24).
performing a full or wide range of light work, you must have the ability to do
substantially all of these activities. 	If someone can do light work, we determine
that he or she can also do sedentary work, unless there are additional limiting
factors such as loss of fine dexterity or inability to sit for long periods of time.”
20 CFR § 404.1567(b).
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Mr. C. has suffered from Crohn’s disease since he was 15 years old. 	(AR
at p. 69). 	He had a heart attack in July of 2016, which required a stent. 	(AR
at p. 432). 	His ejection fraction remained low, so a defibrillator (AICD) was
implanted in December of 2017. 	(AR at p. 667).
In December of 2017, Dr. Barker was the first medical consultant to
make an assessment of Mr. C.’s RFC. 	In Dr. Barker’s assessment, he
determined the maximum work Mr. C. was capable of performing was
sedentary work. 	(AR at pp. 95-99). 	Dr. Barker determined that Mr. C. could
lift and/or carry up to 10 pounds frequently and 20 pounds occasionally, he
could stand and/or walk for 4 hours in an 8-hour workday and sit for about 6
hours in an 8-hour workday with normal breaks. 	(AR at pp. 95-99).
Then, approximately six months later, in May of 2018 at reconsideration,
Dr. Lassegard also determined the maximum Mr. C. was capable of performing
was sedentary work. 	(AR at pp. 123-28). 	Dr. Lassegard determined Mr. C.
could lift and/or carry up to 10 pounds frequently and 20 pounds occasionally,
he could stand and/or walk for 4 hours in an 8-hour workday and sit for about
6 hours in an 8-hour workday with normal breaks. 	(AR at pp. 123-28).
The ALJ found these opinions of Dr. Barker and Dr. Lassegard, non-
treating and non-examining medical sources, to be persuasive noting that they
were “internally consistent and well supported by a reasonable explanation and
the available evidence.” 	(AR at p. 35). 	However, the ALJ found that the
“experts did not have the same opportunity as the [ALJ] to review the evidence
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submitted through the date of the hearing or to see and hear the claimant’s
testimony.” 	(AR at p. 35).
The medical evidence in the record after the medical opinions of Dr.
Barker and Dr. Lassegard consists of:
• 	June 7, 2018: 	Mr. C. was seen at Community Health for follow-up of
chronic conditions and medications, complains of chest pain or
discomfort, palpitations, orthopnea, diffuse abdominal pain and
muscle cramps. 	No findings are documented. 	(AR at p. 830).
• 	August 9, 2018: 	Mr. C. was seen at Community Health for labs, he
requested a consultation with a gastroenterology specialist for GI
issues and Crohn’s. 	(AR at p. 830).
• 	June 11, 2019: 	Emergency room visit. 	Mr. C. complained of
shortness of breath for three weeks that is worse with exertion, and
leg swelling. 	Mr. C. reported he saw his doctor yesterday, started
back on Lasix, and is feeling better today and the swelling in his legs
is nearly gone, but still has some shortness of breath. 	Mr. C. reported
that he was told by his doctor to come to the emergency room because
his BNP was high. 	Reported having diarrhea 10-15 times a day. He
was given an IV of Lasix. 	Mr. C. checked himself out against medical
advice. 	(AR at pp. 877-905).
.
• 	June 27, 2019: Mr. C. saw Dr. Vogele, gastroenterologist, at
Community Health. 	Dr. Vogele found there could be a component of
bile acid diarrhea and prescribed Welchol. 	Dr. Vogele recommended a
CT scan of the abdomen and pelvis, and a colonoscopy, but noted that
Mr. C. does not have insurance so he will apply for patient assistance
through Rapid City Regional Hospital. 	(AR at pp. 859-61).
• 	July 1, 2019: Dr. Vogele notes he received a telephone call from Mr.
C. where Mr. C. reported a decrease in stools to 5-6 in a 24-hour
period since on Welchol. 	Mr. C. also reports he applied for patient
assistance. 	(AR at p. 861).
• 	February 16, 2020: 	Emergency room visit. 	Mr. C. complained of
frequent vomiting and diarrhea and stated that the last time he
vomited like this he had a heart attack. 	His chest x-ray showed no
pneumonia or pneumothorax. 	His EKG showed tachycardia but no
acute ischemic changes. 	He was given IV fluids along with Zofran and
discharged that same day. 	(AR at pp. 862-76).
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• 	February 20, 2020: Administrative Hearing. Mr. C. testified he has no
energy and constant diarrhea from Crohn’s. 	He stated that even
though he’s had Crohn’s since he was 15, it has worsened since his
heart attack in 2016. 	He testified that he uses the restroom 6-10
times per day, wears incontinence underwear, and despite being home
most of the time, he sometimes does not make it to the bathroom in
time. 	Mr. C. testified that he has a hard time getting through grocery
stopping. 	Testified he thinks he can lift about 50 pounds. 	As to
activities of daily living, he testified he can take care of his personal
needs, eating, dressing and bathing; he does his own laundry; does
not cook; and is on the computer approximately 12 hours per day.
(AR at pp. 65-75).
These records show the continuation of Mr. C.’s conditions. 	The only
improvement was the statement from Mr. C. to Dr. Vogele that he had fewer
stools after starting on Welchol, but approximately seven months later at the
administrative hearing, Mr. C. testified that he continues to take Welchol and
that he uses the restroom approximately 6-10 times per day and wears
incontinence underwear. 	(AR at pp. 68, 861).
Also, Dr. Lassegard made another determination in May of 2019 that Mr.
C. was limited to sedentary work, but this time Dr. Lassegard physically
examined Mr. C. 	(AR at pp. 813-23). 	Dr. Lassegard determined that Mr. C.’s
“standing and walking need to be limited because of his conditions.” 	(AR at p.
817). 	Dr. Lassegard determined that Mr. C. can occasionally lift and carry up
to 20 pounds, that he can stand for 4-6 hours total in an 8-hour workday but
can only stand for 1 hour at a time without interruption, that he can walk for a
total of 2 hours in an 8-hour workday, and that he can sit for 2 hours at a time
without interruption. 	(AR at p. 813-23). 	The ALJ found Dr. Lassegard’s
opinion to be persuasive, except as to his opinion that Mr. C. could only “sit for
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2 hours at a time and stand and/or walk for 4 hours total in an 8-hour
workday” which the ALJ found was very unpersuasive because it was not
supported by physical examination findings or Mr. C.’s activities of daily living.
(AR. at p. 36).
Here, the court agrees with Mr. C. that the ALJ’s RFC finding is not
supported by substantial evidence and remand is necessary. 	The ALJ
seemingly ignored the findings of Dr. Barker and Dr. Lasssegard that Mr. C.’s
RFC should be limited to sedentary work. 	See Lauer v. Apfel, 245 F.3d 700,
704 (8th Cir. 2001) (A claimant’s RFC is a medical question and some medical
evidence must support the determination of the claimant’s RFC).
The record as a whole is replete with evidence demonstrating the
continuity and severity of Mr. C.’s physical conditions during the relevant
disability period. 	Also, state agency experts consistently determined Mr. C.
was limited to sedentary work, which is consistent with the medical records.
The ALJ determined Mr. C. was able to perform light work with
limitations. 	Having reviewed and considered the record, the RFC does not
adequately account for the functional limitations imposed by Mr. C.’s severe
physical impairments. 	The ability to perform light work requires the ability to
stand and walk for a total of six hours out of an eight-hour workday. 	The
entirety of the record makes it clear that Mr. C. could not do so.
The court finds the ALJ’s assessment of Mr. C.’s RFC is not supported by
substantial evidence. 	See Goff v. Barnhart, 421 F.3d 785, 793 (8th Cir. 2005)
(“The ALJ must assess a claimant’s RFC based on all relevant, credible
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evidence in the record, including the medical records, observations of treating
physicians and others, and an individual’s own description of his limitations.”)
(citations and internal quotations omitted). 	As such, the matter is remanded to
the Commissioner to reassess Mr. C.’s RFC consistent with this opinion.
Because the court finds reversible error, it need not address the
credibility determination of the ALJ as to Mr. C., or consideration of new
evidence.
ORDER
Based on the above analysis, it is hereby
ORDERED that Plaintiff’s Motion for Order Reversing Decision of
Commissioner (Doc. 20) is granted; and it is further
ORDERED that Defendant’s Motion for Order Affirming Decision of the
Commissioner (Doc. 23) is denied; and it is further
ORDERED that, pursuant to sentence four of 42 U.S.C. § 405(g), the
case is remanded to the Commissioner for rehearing consistent with the court’s
analysis.
DATED this 30th day of September, 2022.
BY THE COURT:
DANETA WOLLMANN
United States Magistrate Judge
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