Sims v. Astrue

Filing 17

MEMORANDUM OPINION: this case will be reversed and remanded to the Commissioner for further proceedings consistent with this opinion; ORDERED that, in accordance with Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1278 fn. 2 (11th Cir. 2006), the plaintiff shall have sixty (60) days after she receives notice of any amount of past due benefits awarded to seek attorney's fees under 42 U.S.C. § 406(b). Signed by Honorable Charles S. Coody on 7/26/2010. (cc, )

S i m s v. Astrue (CONSENT)

D o c . 17

IN THE DISTRICT COURT OF THE UNITED STATES F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION K IM B E R L Y R. SIMS, P l a in tif f , v. M IC H A E L J. ASTRUE, C o m m is s io n e r of Social Security, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

C I V IL ACTION NO. 3:09cv366-CSC

M E M O R A N D U M OPINION I . Introduction T h e plaintiff applied for disability insurance benefits pursuant to Title II of the Social S e c u rity Act, 42 U.S.C. §§ 401 et seq. and for supplemental security income benefits under T itle XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. alleging that she was unable to work because of a disability. Her application was denied at the initial administrative level. T h e plaintiff then requested and received a hearing before an Administrative Law Judge (" A L J" ). Following the hearing, the ALJ also denied the claim. The Appeals Council re je c te d a subsequent request for review. The ALJ's decision consequently became the final d ec isio n of the Commissioner of Social Security (Commissioner).1 See Chester v. Bowen, 7 9 2 F.2d 129, 131 (11 th Cir. 1986). The case is now before the court for review pursuant to 4 2 U.S.C. §§ 405 (g) and 1383(c)(3). Pursuant to 28 U.S.C. § 636(c), the parties have

Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L. No. 1 0 3 -2 9 6 , 108 Stat. 1464, the functions of the Secretary of Health and Human Services with respect to Social S e c u rity matters were transferred to the Commissioner of Social Security.

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c o n se n te d to entry of final judgment by the United States Magistrate Judge. Based on the c o u rt's review of the record in this case and the briefs of the parties, the court concludes that th e decision of the Commissioner should be reversed and remanded for further proceedings. I I . Standard of Review U n d e r 42 U.S.C. § 423(d)(1)(A) a person is entitled to disability benefits when the p e rso n is unable to e n g a g e in any substantial gainful activity by reason of any medically d e ter m in a b le physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period o f not less than 12 months . . . T o make this determination 2 the Commissioner employs a five-step, sequential e v a lu a tio n process. See 20 C.F.R. §§ 404.1520, 416.920. (1 ) Is the person presently unemployed? (2 ) Is the person's impairment severe? (3 ) Does the person's impairment meet or equal one of the specific im p a irm e n ts set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1? (4 ) Is the person unable to perform his or her former occupation? (5 ) Is the person unable to perform any other work within the economy? A n affirmative answer to any of the above questions leads either to the next q u e stio n , or, on steps three and five, to a finding of disability. A negative a n sw e r to any question, other than step three, leads to a determination of "not d is a b le d ." M c D a n ie l v. Bowen, 800 F.2d 1026, 1030 (11 th Cir. 1986).3

A "physical or mental impairment" is one resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) is a supplemental security income case (SSI). The same sequence applies to disability insurance benefits. Cases arising under Title II are appropriately
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T h e standard of review of the Commissioner's decision is a limited one. This court m u s t find the Commissioner's decision conclusive if it is supported by substantial evidence. G r a h a m v. Apfel, 129 F.3d 1420, 1422 (11 th Cir. 1997); 42 U.S.C. § 405(g). "Substantial e v id e n c e is more than a scintilla, but less than a preponderance. It is such relevant evidence a s a reasonable person would accept as adequate to support a conclusion." Richardson v. P e ra le s, 402 U.S. 389, 401 (1971). A reviewing court may not look only to those parts of th e record which supports the decision of the ALJ, but instead must view the record in its e n t ir e ty and take account of evidence which detracts from the evidence relied on by the ALJ. H ills m a n v. Bowen, 804 F.2d 1179 (11 th Cir. 1986). [ T h e court must] . . . scrutinize the record in its entirety to determine the re a so n a b le n e ss of the [Commissioner's] . . . factual findings . . . No similar p re su m p tio n of validity attaches to the [Commissioner's] . . . legal conclusions, in c lu d in g determination of the proper standards to be applied in evaluating c la im s . W a lk e r v. Bowen, 826 F.2d 996, 999 (11 th Cir. 1987). I I I . The Issues A . Introduction. The plaintiff, Kimberly Sims ("Sims") was 41 years old on the date o f onset and has a limited education. (R. 21). Her prior work experience includes work as a cloth inspector and a general inspector. (R. 20). Following the hearing, the ALJ concluded th a t the plaintiff has severe impairments of "hypertension, obesity, emphysema with recurrent b ro n c h itis , and lumbar degenerative disc disease." (R. 14-15). The ALJ further concluded

cited as authority in Title XVI cases. See e.g. Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981) (Unit A).

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th a t Sims' depression and anxiety were not severe impairments. (R. 15).

The ALJ

c o n c lu d e d that the plaintiff was not disabled because she could return to her past relevant w o rk as a general inspector. (R. 20-21). In the alternative, the ALJ concluded that Sims had th e residual functional capacity to perform other work in the national economy, and thus, she w a s not disabled. (R. 21). B. Plaintiff's Claims. As stated by the plaintiff, the primary issue is as follows: [I]t is the plaintiff's position that medical evidence from treating sources and f ro m consulting medical sources dictate a conclusion that the plaintiff be found d is a b le d while the contrary testimony from the "medical expert" testifying at th e evidentiary hearing finds no support in the medical evidence of record. (P l's Br. at 3). I V . Discussion A lth o u g h the plaintiff presents issues related to this court's ultimate inquiry of w h e th e r the Commissioner's disability decision is supported by the proper legal standards a n d by substantial evidence, see Bridges v. Bowen, 815 F.2d 622 (11 th Cir. 1987), the court p re te rm its discussion of the plaintiff's specific arguments because the court concludes that th e ALJ erred as a matter of law and thus, this case is due to be remanded for further p r o c e e d in g s . A n administrative law judge has a duty to develop a full and fair record. Kelley v. H e c k le r , 761 F.2d 1538 (11 th Cir. 1985). As will be explained below, the court concludes th a t the ALJ failed in this case to fully and fairly develop the record concerning the severity o f the plaintiff's lumbar degenerative disc disease, and the concomitant effects of that

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c o n d itio n on her ability to work. The plaintiff has a well-documented history of chronic back pain from her lumbar d e g e n era tiv e disc disease. (R.128, 197-201, 204, 208, 210-11, 214-16, 218-19, 232-33, 2363 7 , 240-41, 244-45, 248-49, 252, 256-57, 260-61, 264, 268-70, 280-81, 284-85, 288-89, 2929 3 , 296-97, 300-02, 307, 310-11, 314-15, 318-19, 322-23, 326-27, 334-35, 33839, 342-43, 3 4 6 -4 7 , 350-51, 355-61). On August 21, 2000, the plaintiff presented at the Lake Martin F a m ily Medicine clinic complaining of back pain. (R. 219). In September 2001, Sims c o m p la in e d that she had fallen and hurt her back. (R. 218). On February 13, 2001, x-rays o f the plaintiff's spine indicated anatomic alignment of the lumbar spine. There is T12-L1 disc space n a r ro w in g with anterior osteophytes at this level. There is also some mild disc s p a c e narrowing at L5-S1. The pedicle and spinous processes appear intact at e a ch level . . . The SI joints are unremarkable. (R . 435). The reviewing physician diagnosed "[d]egenerative changes at T12-L1. No acute a b n o rm a lity noted on the lumbar spine." (Id.). Sims complained at the clinic of back pain o n February 28, March 26, June 5, September 18, and September 27, 2002. (R.210-11 & 2 1 4 -1 6 ). On May 27, 2003, she complained at the clinic that her back and legs were hurting. (R . 208). On August 1, 2003, she complained at the clinic that the pain in her back, gluteal a re a and legs was severe ­ eight on a scale of 1 - 10. (R. 204). On August 5, 2003, she had a n MRI and x-rays were also taken. (R. 225, 372-73, 449-50). The MRI revealed 1. M in im a l gibbous angulation at T12-L1 associated with the minimal a n te r io r distant compression at T12. This probably is not of sig n if ica n c e regarding the cord, even though the cord drapes over this 5

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a re a , there is a wide thecal sac/canal at this site. M in im a l degenerative disk change at L5-S1. N o spinal stenosis. No HNP. No sign of tumor or any other significant f in d in g .

(R. 225, 373, 449). X-rays revealed "[d]istant anterior compression of L1." (R. 372, 450). She continued to complain to Dr. Bartel of back pain. (R. 200-01). On September 13, 2003, Dr. Bartel n o te d that Sims presented "with an acute flare up of her lower back problem launching a boat w ith acute discomfort in the lumbar area with some numbness and paraesthesia involving the rig h t hip and leg." (R. 199). She was treated with medication and referred to Dr. Patrick R ya n . (Id.) Sims continued to complain of back pain. On November 11, 2003, she presented to th e emergency room at the Russell Medical Center complaining of back pain. (R. 363, 365, 3 6 8 ). Admission forms indicate that a work related back injury. (R. 371, 442-43). X-rays in d ic a te d "[n]o acute abnormality and no significant interval change" since the earlier x-rays in August. (R. 367, 448). Beginning in July 2003, Sims was also treated by Dr. Bowen. She presented to him o n July 25, 2003, complaining of back pain the lumbar spine, "radiat[ing] down both legs." (R . 237). Dr. Bowen diagnosed Sims with lumbar disc syndrome. (R. 240). Dr. Bowen saw S im s on August 26, September 16, October 20, November 17, December 15, and December 2 6 , 2003, complaining of lower back pain radiating down her legs. (R. 232-33, 236-37, 241, 2 4 5 , 248, 249, 252). In 2004, Sims complained to Dr. Bowen of back pain on January 23, 6

F e b ru a ry 11, February 20, March 17, March 26, May 11, June 7, July 6, August 28, S e p te m b e r 21, November 12, December 10, and December 30. (R. 256-57, 261, 268-70, 2 8 0 -81 , 284-85, 289, 292-93, 296, 300-02, 315, 318). In 2005, Sims complained to Dr. B o w e n of back pain on January 24, and of increased back pain on February 23. (R. 311, 3 0 7 ). She presented to Dr. Bowen complaining of back pain on March 15, April 5, and April 2 5 . (R. 327, 323, 319). On June 3, 2005, she complained of left hip pain and numbness. (R. 3 3 9 ). On July 21, 2005, Sims complained to Dr. Bowen of pain in her left hip, that her legs w e re weak and numbness on her buttocks. (R. 335). Dr. Bowen attributed these symptoms to her poorly controlled lumbar disc disease. (R. 338). She continued to complain on August 8 and November 21, 2005 of back pain. (R. 334, 343). Sims presented to Dr. Bowen on January 11, March 1, April 21, June 7, August 8, O c to b e r 4, and November 17, 2006, complaining of back pain. (R. 351, 347, 355-58). On A p ril 21, 2006, Dr. Bowen noted "some decreased range of motion in her lower lumbar sp ine." (R. 355). O n March 9, 2007, Dr. Bowen diagnosed Sims with "Failed Back Syndrome" (R. 3 5 9 ). Dr. Bowen continued to treat Sims with pain medication throughout 2007 and 2008. (R . 358-61, 440, 456-57). O n November 9, 2007, Dr. Bartel conducted a physical evaluation at the request of th e Social Security Administration. (R. 375-84). Sims complained of pain in her lower back an d legs. (R. 375). She reported her pain, on a scale of 1 - 10, was an eight (8). (R. 376).

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S h e takes Lortab for the pain. (Id.) She had tenderness in her legs as well as "tenderness [a n d ] spasms in LS spine [and] sacroiliac areas w[ith] radiation into [her] legs." (R. 379). S h e exhibited a limited range of motion in her back. (Id.) Dr. Bartel noted that Sims had d if f ic u lty "getting on & off exam table due to back & leg pain." (Id.) She had difficulty with R o m b e rg , squat and rise, bending and twisting. (R. 379-80). Dr. Bartel did not order any a d d itio n a l x-rays or MRIs. F in a lly, on September 11, 2008, Dr. Bowen's medical notes reflect that Sims "[s]till ref u ses any lab or x-ray studies because of lack of insurance." (R. 461). I n discrediting the plaintiff's pain testimony, the ALJ reviewed the claimant's available medical history and concludes that the re c o rd does not reflect pathology or a treatment history that supports the s ym p to m s she has reported in this adjudication. The nature and frequency of th e claimant's outpatient medical care with Dr. Bowen, her treating physician, d u rin g the period relevant to this adjudication has been infrequent and inco n sisten t with the existence of disabling impairments. Dr. Bowen's chart n o te s do not corroborate that the claimant has made consistent reports of s ym p to m s at the level of severity alleged in her testimony. The claimant u n d e r w e n t a lumbar MRI on August 5, 2003, and a lumbar spine x-ray on N o v e m b e r 17, 2003, but both imaging studies revealed only mild a b n o r m a litie s . (R . 18). First, the ALJ is simply wrong about the frequency and consistency of Sims' tre a tm e n t. The medical records demonstrate that between August 21, 2000 and July 3, 2008, S im s was seen by Dr. Bowen or the Lake Martin Family Clinic fifty-seven (57) times. (R. 1 9 7 -2 0 1 , 204, 208, 210-11, 214-16, 218-19, 232-33, 237, 241, 245, 249, 256-57, 261, 268,

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2 6 9 -7 0 , 280-81, 285, 289, 293, 297, 301, 307, 311, 315, 319, 323, 327, 334-35, 339, 343, 3 4 7 , 351, 355-61). More importantly, however, pursuant to 20 C.F.R. § 416.917, the ALJ is required to o rd e r additional medical tests when the claimant's medical sources do not give sufficient m e d ic a l evidence to make a determination as to disability. The ALJ failed to obtain updated M R Is or x-rays or otherwise develop the medical evidence regarding Sims' current lumbar d e g e n era tiv e disc disease. Although the plaintiff was sent for a consultative physical e x a m in a tio n , it is apparent from the record that no recent x-rays or MRIs were obtained to d e te rm in e the extent of the plaintiff's lumbar disc disease. The court is at a loss as to why th e ALJ would order a consultative physical examination without also requesting additional im a g in g be done, particularly in light of the nature of the plaintiff's complaints. See Baker v . Bowen, 886 F.2d 289, 292 (10 th Cir. 1989) (failure to obtain x-rays particularly a problem w h e n claimant is complaining of arthritis, a disease commonly diagnosed by x-rays); Smith v . Apfel, 231 F.3d 433, 437 (7 th Cir. 2000) ("fail to see how the ALJ could have properly a ss e ss e d the extent of arthritis without updated x-rays"). Although the medical records d e m o n s tra te numerous trips to her treating physicians by the plaintiff complaining of pain, th e ALJ took no further steps to explore the nature of the plaintiff's current degenerative disc d is e a se by securing updated MRI testing or x-rays. Rather, the ALJ relied on imaging from 2 0 0 3 to support her conclusion that Sims is not presently disabled and has not been disabled s in c e 2007.

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M o re o v e r, the ALJ also had a medical expert testify at the administrative hearing. (R. 3 6 -3 7 ). Despite an onset date of May 28, 2007, the medical expert testified that his opinions w e re based on the 2003 MRI. (R. 36). The medical expert also admitted that Sims had not h a d a diagnostic work up since 2003, and that her degenerative disc disease could have " g o tte n much worse" since that MRI. (R. 36-37). There is sufficient evidence from which th e ALJ should have concluded that it was necessary to require recent imaging of the p la in tif f 's lumbar degenerative disc disease before rendering a decision regarding her d is a b ility. The ALJ's failure to fully develop the record by failing to obtain a current MRI o r x-rays requires that this case be remanded for further proceedings. See Holladay v. B o w e n , 848 F.2d 1206, 1209 (11 th Cir. 1988) (ALJ is not required to order consultative e x a m in a tio n unless the record establishes that such an evaluation is necessary to make in f o rm e d decision); Reeves v. Heckler, 734 F.2d 519 (11 th Cir. 1984) (error for ALJ not to o rd e r consultative examination where the evaluation is needed to make an informed d e c is io n ). The court also notes that the ALJ discounted the severity of Sims' pain because "she w a s unwilling to undergo any laboratory or diagnostic studies due to her lack of health in s u ra n c e, nonetheless, no clinical findings of lumbar abnormality were reported upon p h ysic a l examination." (R. 19). The plaintiff testified that she could not afford referral to a specialist or surgery because she did not have any insurance. (R. 30). The medical records ref lect that Sims's lack of insurance influenced her treatment. (R. 157, 456). While failure

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to seek treatment is a legitimate basis to discredit the testimony of a claimant, it is the law in this circuit that poverty excuses non-compliance with prescribed medical treatment or the f a ilu re to seek treatment. Dawkins v. Bowen, 848 F.2d 1211 (11 th Cir. 1988). "S o c ial Security proceedings are inquisitorial rather than adversarial. It is the ALJ's d u ty to investigate the facts and develop the arguments both for and against granting b e n e fits ." Sims v. Apfel, 530 U.S. 103, 110-111 (2000). In this regard, the ALJ failed in her d u ty to develop the record. T h e SSA is perhaps the best example of an agency that is not based to a s i g n i f i c a n t extent on the judicial model of decisionmaking. It has replaced n o rm a l adversary procedure with an investigatory model, where it is the duty o f the ALJ to investigate the facts and develop the arguments both for and a g a in s t granting benefits; review by the Appeals Council is similarly broad. Id . The regulations also make the nature of the SSA proceedings quite clear. T h e y expressly provide that the SSA "conducts the administrative review p roc ess in an informal, nonadversary manner." 20 C.F.R. § 404.900(b). C r a w fo r d & Co. v. Apfel, 235 F.3d 1298, 1304 (11 th Cir. 2000). Based on the inadequate d e v e lo p m e n t of the record, the court cannot determine whether the ALJ's conclusion that the p la in tif f is not disabled is based on substantial evidence. V . Conclusion A c c o rd in g ly, this case will be reversed and remanded to the Commissioner for f u rth e r proceedings consistent with this opinion. It is further O R D E R E D that, in accordance with Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1 2 7 8 fn. 2 (11 th Cir. 2006), the plaintiff shall have sixty (60) days after she receives notice o f any amount of past due benefits awarded to seek attorney's fees under 42 U.S.C. § 406(b). 11

S e e also Blitch v. Astrue, 261 Fed. Appx. 241, 242 fn.1 (11 th Cir. 2008). A separate order will issue. Done this 26 th day of July, 2010.

/s/Charles S. Coody CHARLES S. COODY U N IT E D STATES MAGISTRATE JUDGE

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