Porter v. Astrue

Filing 20

Order entered that the decision of the Commissioner of Social Security, denying Plaintiffs claim for supplemental security income, be REVERSED and REMANDED. Signed by Magistrate Judge Sonja F. Bivins on 9/28/2012. (mjn)

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION PATRICIA A. PORTER, * * * * * * * * * * Plaintiff, vs. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant. CIVIL ACTION 11-00350-B ORDER Plaintiff action Patricia seeking Commissioner supplemental A. judicial of review Social security Porter (“Plaintiff”) of Security income under a final decision denying Title Security Act, 42 U.S.C. § 1381, et. seq. brings her XVI of claim of the this the for Social On April 24, 2012, the parties consented to have the undersigned conduct any and all proceedings in this case. (Doc. 18). Thus, the action was referred to the undersigned to conduct all proceedings and order the entry of judgment in accordance with 28 U.S.C. § 636(c). Oral argument was held on April 24, 2012. Upon careful consideration of the administrative record and the memoranda of the parties, it is hereby ORDERED Commissioner be REVERSED and REMANDED. that the decision of the I. Procedural History Plaintiff supplemental 151). protectively security Plaintiff filed income alleges on that an August she has application 9, 2007. been (Tr. for 83-89, disabled since October 1, 2006, due to cervical degenerative disc disease and left carpal tunnel syndrome. (Id. at 35). application was denied at the initial stage. Plaintiff’s (Id. at 35-41). She filed a timely Request for Hearing before an Administrative Law Judge (“ALJ”). Administrative administrative Law (Id. at Judge hearing, Frederick by Plaintiff and her attorney. 45-53). video, which (Id. at 23-34). On March McGrath was 3, 2010, held attended an by On March 31, 2010, the ALJ issued an unfavorable decision finding that Plaintiff is not disabled. (Id. at 5-22). Plaintiff’s request for review was denied by the Appeals Council (“AC”) on May 9, 2011. (Id. at 1-4, 77-82). The parties agree that this case is now ripe for judicial review and is properly before this Court pursuant to 42 U.S.C. § 405(g) and 1383(c)(3). II. Issues on Appeal A. Whether the ALJ’s final decision was supported by substantial evidence? B. Whether the ALJ failed to assign proper weight to the opinion of Plaintiff’s treating psychologist? 2 C. Whether the ALJ improperly evaluated Plaintiff’s treating psychologist’s psychological capacity evaluation in terms of the onset date of Plaintiff’s pain disorder? D. Whether the ALJ erred in finding that Plaintiff’s complaints of pain are not severe under SSR 96-3p? E. Whether the ALJ’s statement of Plaintiff’s subjective complaints of pain and credibility complied with the requirements of SSR 96-7p? F. Whether the ALJ erred by improperly evaluating the evidence or by failing to order a consultative examination? III. Factual Background Plaintiff was born on April 12, 1959, and was fifty (50) years of age at the time of the administrative hearing. 18, 35). (Tr. She has a 7th grade education and past relevant work (“PRW”) as a storm relief worker and fast food cook. (Id. at 108, 133, 221). At the administrative hearing,1 Plaintiff testified that she has pain in her hands, neck, shoulder, back, legs and hips and that x-rays disease. have confirmed (Id. at 32). that she has degenerative disk Plaintiff also testified that she spends the day reading and watching television, and that she has to often get up and move around. (Id. at 33). 1 Interestingly, the transcript from the administrative hearing reflects that while the ALJ questioned Plaintiff’s representative extensively, he did not pose a single question to Plaintiff. Plaintiff was, however, questioned by her representative. 3 IV. Analysis A. Standard Of Review In reviewing claims brought under the Act, this Court’s role is a limited determining 1) one. whether The the Court’s decision review of the is limited to Secretary is supported by substantial evidence and 2) whether the correct legal standards were applied. 1520, 1529 (11th Cir. 1990).2 Martin v. Sullivan, 894 F.2d A court may not decide the facts anew, reweigh the evidence, or substitute its judgment for that of the Commissioner. Cir. 1986). The Sewell v. Bowen, 792 F.2d 1065, 1067 (11th Commissioner’s findings of fact affirmed if they are based upon substantial evidence. must be Brown v. Sullivan, 921 F.2d 1233, 1235 (11th Cir. 1991); Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983) (holding substantial evidence is defined as “more than a scintilla but less than a preponderance” and consists of “such relevant evidence as a reasonable person would accept as adequate to support a conclusion.”). In determining whether substantial evidence exists, a court must view the record as a whole, taking into account evidence favorable, as well as unfavorable, to the Commissioner’s decision. Chester v. Bowen, 792 F. 2d 129, 131 2 This Court’s review of the Commissioner’s application of legal principles is plenary. Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987). 4 (11th Cir. 1986); Short v. Apfel, 1999 U.S. Dist. LEXIS 10163 (S.D. Ala. 1999). B. Discussion An individual who applies for Social Security disability benefits must 416.912. substantial prove his disability. 20 C.F.R. § 404.1512, Disability is defined as the “inability to do any gainful activity by reason of any medically determinable 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 of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A), 404.1505(a), 416.905(a). The Social Security regulations provide a five-step sequential evaluation process for determining if a claimant has proven her disability. 20 C.F.R. § 404.1520, 416.920.3 3 The claimant must first prove that he or she has not engaged in substantial gainful activity. The second step requires the claimant to prove that he or she has a severe impairment or combination of impairments. If, at the third step, the claimant proves that the impairment or combination of impairments meets or equals a listed impairment, then the claimant is automatically found disabled regardless of age, education, or work experience. If the claimant cannot prevail at the third step, he or she must proceed to the fourth step where the claimant must prove an inability to perform their past relevant work. Jones v. Bowen, 810 F.2d 1001, 1005 (11th Cir. 1986). In evaluating whether the claimant has met this burden, the examiner must consider the following four factors: (1) objective medical facts and clinical findings; (2) diagnoses of examining physicians; (3) evidence of pain; (4) the claimant’s age, education and work history. Id. at 1005. Once a claimant meets this burden, it becomes the Commissioner’s burden to prove (Continued) 5 In the case sub judice, the ALJ determined that Plaintiff has not engaged in substantial gainful activity and that she has the severe impairments of cervical degenerative disc disease, myalgia and myositis, cervical radiculitis, polyarthralgia, carpal tunnel syndrome, hypertension, arthritis, pain disorder, and personality Plaintiff does disorder. not have (Tr. an 10). The impairment or ALJ found that combination of impairments that meets or medically equals any of the listings contained in 20 C.F.R. Pt. 404, Subpt. P, App. 1, Regulations No. 4. (Id.). The ALJ functional light concluded capacity work, that that Plaintiff (hereinafter Plaintiff “RFC”) cannot climb retains to the perform ladders, residual unskilled ropes, and scaffolds, that Plaintiff can perform occasional crouching and crawling, that Plaintiff is limited to occasional gross manipulation with the left hand and that Plaintiff can perform at the fifth step that the claimant is capable of engaging in another kind of substantial gainful employment which exists in significant numbers in the national economy, given the claimant’s residual functional capacity, age, education, and work history. Sryock v. Heckler, 764 F.2d 834 (11th Cir. 1985). If the Commissioner can demonstrate that there are such jobs the claimant can perform, the claimant must prove inability to perform those jobs in order to be found disabled. Jones v. Apfel, 190 F.3d 1224, 1228 (11th Cir. 1999). See also Hale v. Bowen, 831 F.2d 1007, 1011 (11th Cir. 1987) (citing Francis v. Heckler, 749 F.2d 1562, 1564 (11th Cir. 1985)). 6 no work with Plaintiff the cannot general perform dangerous machinery. public. work around The ALJ also that heights unprotected found and (Id. at 12). The ALJ next determined that while Plaintiff’s medically determinable impairments could reasonably be expected to produce the alleged symptoms, her statements concerning the intensity, persistence and limiting effects of the alleged symptoms were not credible. (Id. at 16). The ALJ concluded that Plaintiff’s RFC precludes her from performing any of her past work and that considering Plaintiff’s RFC and vocational factors, such as age, education other and jobs economy. work experience, existing (Id. at in significant 17-18). Plaintiff is not disabled. Plaintiff Thus, is numbers the ALJ able in to the perform national concluded that (Id. at 18-19). The relevant evidence of record shows that Plaintiff was treated at Tri-County Medical June 1997 through July 2006.4 Center Castleberry (Id. at 177-201). Clinic from On July 12, 2006, Plaintiff reported back pain and pain when urinating. was prescribed gentamycin, cipro, and urogesic blue. She (Id. at 178). 4 While the undersigned has examined all of the medical evidence contained in the record, including that which was generated before Plaintiff’s alleged onset date of October 1, 2006, only those records relevant to the issues before the Court are highlighted. 7 Plaintiff was treated by Dr. Stanley Barnes at Barnes Family Medical Associates from October 1997 through February 16, 2009. (Id. at 215-220, 247-52). During a February 19, 2007 visit, Plaintiff presented with a history of neck and back pain. The notes indicated that Plaintiff had previously been treated by Dr. Fleet.5 Plaintiff’s chief complaint was numbness in her shoulders and arms, especially on the right side. Dr. Barnes opined that Plaintiff’s complaints did not sound like carpal tunnel, and after examining Plaintiff, he provided her a sample of Lyrica. (Id. at 215). Plaintiff was seen by Dr. Barnes on August 7, 2007. The treatment notes reflect that Plaintiff reported that she previously performed relief work following Hurricane Katrina, but had to stop because of neck and back pain. Plaintiff also reported that an orthopedist had prescribed Tramadol for her, and that it helped to some extent. 5 On examination, Plaintiff’s Dr. Fleet ordered an MRI of Plaintiff’s cervical and lumbar spine on March 4, 2004. The imaging results of the cervical spine showed moderate broad based central disc protrusion which impinges on the cord but does not appear to flatten it at C4-5. Moderate central disc protrusion impinging on the cord and possibly producing slight flattening of the cord was seen at C5-6. No foraminal stenosis and no intrinsic abnormality were seen within the cord. (Id. at 218). Imaging results of Plaintiff’s lumbar spine revealed some dessication of the disc, moderate broad based disc bulge at L3-4 and L4-5, producing mild spinal stenosis but with adequate space for the cauda equina. Moderate degenerative changes involving the facet joints at L3-4 and L4-5 were also noted. (Id. at 219). 8 chest was clear, and her heart had regular rate and rhythm. Plaintiff’s extremities arthritis. showed evidence of generalized Dr. Barnes prescribed Ultram 60 mg and provided her with more samples of Lyrica 75 mg. (Id. at 216). Dr. Barnes’ January 23, 2008 treatment notes reflect that Plaintiff was being seen following her trip to the emergency room due to back pain and urinary tract infection. Plaintiff reported that while in the emergency room, she was given a shot of mepergen, phenergen, and Demerol. She also received Medrol dosepak and Tylenol #4, which helped some. that Plaintiff’s x-rays showed some Dr. Barnes noted degenerative changes and opined that they were probably just “old wear and tear more than anything.” He also noted that Plaintiff reported that she was not her taking blood pressure medications because when checks it at home, her blood pressure is acceptable. she (Id. at 247). During reported Plaintiff’s chest wall pain March 31, whenever tiredness, and lack of energy. should stop smoking. occasionally heart showed had rhonchi regular myalgias and 2008 she office takes a visit, deep she breath, Dr. Barnes noted that Plaintiff On exam, Plaintiff’s chest was clear but appreciated rate and in the rhythm. arthralgias. Dr. posterior Plaintiff’s Barnes’ basis. Her extremities treatment notes dated February 16, 2009 reflect that Plaintiff reported a cough 9 and congestion, that Plaintiff was still smoking, that Plaintiff was only taking 1/2 of her blood pressure medication, and that she reported that she was working at a local casino. (Id. at 252). The record also contains medical records from the Alabama Orthopaedic Clinic for April and May 2007. April 11, 2007, Plaintiff was seen by (Id. at 206-14). Dr. Tim Revels On with complaints of neck pain and pain in both upper extremities, that was lasting for months and was increasing in severity. Plaintiff had extremities. normal Numbness, motor intact tingling, On exam, function and in both upper burning in both upper extremities and hands was found, more in the left hand than the right. Plaintiff distribution. disease, had notable radiculopathy in the C5 Dr. Revels diagnosed cervical degenerative disc cervical radiculopathy, peripheral compression neuropathy. neck pain, and possible (Id. at 207). Dr. Revels referred Plaintiff to Dr. Charles Hall for nerve studies. On May 3, 2007, Plaintiff underwent the nerve studies. The electrodiagnostic impression of the studies was: abnormal study, with mild median focal neuropathy at the left wrist, no evidence evidence of of medial ulnar focal neuropathy neuropathy at bilaterally abnormalities in the left upper extremity. 10 the right and wrist, no no EMG No EMG of the right upper extremity was performed at Plaintiff’s request. (Id. at 208-12). Dr. Revel’s treatment notes dated May 9, 2007 reflect that the nerve studies showed mild left carpal tunnel syndrome, not on the right, and that no other nerve deformity was found. Dr. Revels noted that he examined an MRI from three years prior, which showed some 5-6 cord intrusion next to the spinal cord, which was more than at 4-5. found evidence of lower His physical exam of Plaintiff extremity hyperreflexia. The upper extremities did not show hyperreflexia but were positive for Hoffman sign in both hands.6 Lyrica. Plaintiff was provided a trial of (Id. at 206). The record reflects that on November 5, 2007, Plaintiff was examined by Dr. Stephen M. West, at the request of the Agency. (Id. at 221-23). Plaintiff reported constant severe pain in her neck, arms, back, hips, knees and both hands. her muscles hurt all the time. continues to smoke. She also reported Dr. West noted that Plaintiff On exam, Plaintiff’s blood pressure was 6 Hoffman’s sign is a neurological sign in the hand which is an indicator of problems in the spinal cord. It is associated with a loss of grip. The test for Hoffman’s sign involves tapping the nail on the third or forth finger. A positive Hoffman’s is the involuntary flexing of the end of the thumb and index finger. Normally, there should be no reflex response. See http://www.mult-sclerosis.org/Hoffmanssign.html(last visited September 28, 2012). 11 160/100, cranial nerves 2-12 were grossly intact without focal, motor, or sensory deficit. bilaterally. were 5/5. Plaintiff’s grip strength was 5/5 Flexion and extension of both wrists and elbows Flexion, extension, abduction, and adduction of both shoulders and hips were dorsflexion bilaterally raise was test noted were negative. as 5/5. 5/5. Plantar flexion straight Plaintiff’s Plaintiff was able and leg to reach her ankles, and heel toe walk, and do a full squat while holding onto the exam table. Plaintiff had full flexion and extension of her cervical spine with lateral rotation left and right to 70 degrees and full range of motion of all her joints. Dr. West assessed cervical myalgia radiculitis. and myositis, polyarthralgia, and He noted that Plaintiff had a normal exam, and opined that he did not see “any disabling factors or anything that would prevent her from working.” Agency physical medical RFC consultant assessment on (Id. at 222). Patricia November 20, Easley 2007, completed wherein a she indicated that Plaintiff has cervical degenerative disc disease, cervical radiculopathy, and left carpal tunnel. She opined that Plaintiff could occasionally lift 20 pounds, frequently lift 10 pounds, stand and/or walk about 6 hours in an 8-hour workday, sit about 6 hours in an 8-hour workday, and push and/or pull for a limited amount of time in her upper extremities. determined that Plaintiff could 12 occasionally Ms. Easley climb ladders, ropes, and scaffolds, crouch, and crawl, and frequently climb ramps and stairs, balance, stoop, and kneel. She also found that Plaintiff could occasionally handle with her left hand, but otherwise, Plaintiff’s manipulative limitations were unlimited, and that hazards. Plaintiff should avoid concentrated exposure to No communicative or visual limitations were noted. (Id. at 224-31). Plaintiff Medical presented Center on to the December abdominal, back and leg pain. emergency 28, 2007, room with at Evergreen complaints of An MRI of Plaintiff’s lumbosacral spine showed mild narrowing of the L3-4 and 4-5 disc spaces. Plaintiff’s vertebrae were otherwise normally aligned, and the padicles were intact. disc disease. She was diagnosed with mild degenerative (Id. at 254-55). Plaintiff was treated at Rigdorf Chiropractic Center at least fourteen times between October 23, 2008 and November 26, 2008. (Id. at 233-44). Plaintiff reported numbness in her hands and fingertips, tightness in her left hand, pain in her back, neck, shoulders, and arms, lack of sleep, shortness of breath, Plaintiff bending. and high has blood difficulty pressure. sitting, The notes standing, reflect that walking, and (Id. at 234-37). Plaintiff underwent a psychological evaluation on February 25, 2010 by Robert DeFrancisco, PhD. (Id. at 258-62). 13 Plaintiff reported headaches, numbness in her hands, tightness shoulders and neck, and lower and upper back pain. in her Plaintiff further reported that when she is able, she cooks her meals and does household chores. (Id. at 258-9). Plaintiff was administered the Brief Pain Inventory Short Form and (“MMPI”). the Minnesota Multiphasic Personality Inventory On the Pain Inventory, Plaintiff reported her pain within the last twenty-four hours as an eight on a scale of one to ten, and indicated that her pain affects her ability to move around and her interaction with other people. Dr. DeFrancisco noted that Plaintiff reported that she cannot sleep or enjoy life because of her pain, he Plaintiff observed that experienced the Pain chronic pain Inventory suggested syndrome. On the MMPI, Plaintiff’s Fk ratio and other validity scores were normal. that and Dr. DeFrancisco opined that she has no coping skills, and that she appears in significant distress with depression, as well as added concerns and dramatization. noted Plaintiff has concentration and focusing issues. He (Id. at 259). Dr. DeFrancisco diagnosed pain disorder associated with psychological factors and personality disorder with histrionic and passive aggressive tendencies. pain seems bonafide and genuine. He opined that Plaintiff’s (Id. at 260). He further opined that Plaintiff has marked restrictions in activities of 14 daily living, in maintaining social functioning, in understanding, carrying out, and remembering instructions in a work setting, and in responding appropriately to supervision in a work frequent setting. He deficiencies also of opined that Plaintiff concentration, would persistence or have pace resulting in frequent failure to complete tasks in a timely manner, and she would experience marked episodes deterioration or decompensation in work like settings. of (Id. at 261). 1. In her Whether the ALJ’s final decision supported by substantial evidence? brief, Plaintiff alleges that the is ALJ’s final decision is not supported by substantial evidence, and then, in a less than organized fashion, she makes various regarding alleged shortcomings in the ALJ’s decision. arguments Because the undersigned finds that the ALJ’s step five analysis was flawed and not supported by substantial evidence, the Court will not address the various other arguments in Plaintiff’s brief.7 7 Because the Court determines that the decision of the Commissioner should be reversed and remanded for further proceedings based on Plaintiff’s first claim, there is no need for the Court to address Plaintiff’s other claims. See Robinson v. Massanari, 176 F. Supp. 2d 1278, 1280 and n.2 (S.D. Ala. 2001); Pendley v. Heckler, 767 F.2d 1561, 1563 (llth Cir. 1985)(“Because the ‘misuse of the expert testimony alone warrants reversal’ we do not consider the appellant’s other claims.”) (citations omitted). (Continued) 15 As noted supra, at step four of the sequential evaluation process, the ALJ determined that Plaintiff cannot return to her past relevant work. He then moved on to step five. At this step, the burden shifted to the ALJ to show that there are a significant number of jobs in the national economy that Plaintiff can perform. In undertaking the fifth step analysis, the ALJ may use the grids to determine whether other jobs exist in the national economy that a claimant is able to perform. In using the grids, the ALJ inputs the claimant’s exertion level, skill level, age, education and experience into a whether the claimant is disabled. F.3d 1232, 1240 (llth Cir. 2004). formula, which establishes Phillips v. Barnhart, 357 The Eleventh Circuit has made clear however that “[e]xclusive reliance on the grids is not appropriate either when the claimant is unable to perform a full range of work at a given residual functional level or when a claimant has non-exertional impairments that significantly limit basis work skills.” Id. at 1242 (emphasis in original, citations omitted). In those instances, the preferred method of demonstrating the that claimant through the testimony of a VE. can perform other jobs is Perry v. Astrue, 280 Fed. Appx. 16 887, 895, 2008 U.S. Appx. LEXIS 12285 (llth Cir. 2008); Jones v. Apfel, 190 F. 3d 1224, 1229 (llth Cir. 1999). In D’Anna v. Comm’r of Soc. Sec., 2009 U.S. Dist. LEXIS 121243 (M.D. Fla. Dec. 29, 2009), the plaintiff argued that the ALJ erred in relying on the grids because he found that the plaintiff was limited to simple, routine work, and that the plaintiff should not have close proximity to coworkers or the general public. The Court held that because it was implicit in the ALJ’s finding that the claimant had difficulty interacting with people, the ALJ was required to retain a VE to offer an opinion about the vocational effect of the limitation. See also England v. Astrue, 2008 U.S. Dist. LEXIS 27531 (M.D. Fla. March 28, 2008)(where the ALJ concluded that plaintiff could not have significant contact with other people or perform high stress work, court held that exclusive reliance on the grids was not proper.). In the case sub judice, the ALJ found that Plaintiff has the RFC to perform light unskilled work, and that she is limited to occasional gross manipulation with the left hand, and no work with the general public. (Id. at 12). The ALJ went on to find that if Plaintiff had the RFC to perform the full range of light work, considering her age, education and work experience, Rules 202.11 and 202.18 of the grids would direct a finding of “not disabled”. (Id. at 18). The 17 ALJ further found that the “additional limitations have little or no effect on the occupational base of unskilled light work”; and that the grids directed a finding of “ not disabled.” The undersigned finds that (Id.). the ALJ’s finding that Plaintiff’s nonexertional limitation has “little or no effect” on her occupational base for unskilled work is not supported by substantial evidence. should have “no acknowledgement Implicit in his finding that Plaintiff contact that the with the claimant general has public” difficulty is an interacting with people and that it has more than a minimal effect on the vocational base of light work. the ALJ erred in not Thus, the undersigned finds that obtaining the testimony of a VE. On remand, the Commissioner should obtain VE testimony to determine whether there has been an erosion of the occupational base, and whether there are jobs in significant numbers in the national economy that limitations. Plaintiff can perform given her functional See Phillips, 357 F.3d at 1241-42 (providing that exclusive reliance on the grids is inappropriate when claimant has non-exertional impairments that significantly limit basic work skills). V. Conclusion For the reasons set forth, and upon consideration of the administrative record and memoranda of the parties, it is hereby ORDERED that the decision of 18 the Commissioner of Social Security, denying Plaintiff’s claim for supplemental security income, be REVERSED and REMANDED. DONE this 28th day of September, 2012. /s/ SONJA F. BIVINS UNITED STATES MAGISTRATE JUDGE 19

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