Lovell v. Social Security Administration

Filing 15

MEMORANDUM OPINION AND ORDER reversing the Commissioner's decision and remanding this case. The remand is a "sentence four" remand as that phrase is defined in 42 U.S.C. 405(g) and Melkonyan v. Sullivan, 501 U.S. 89 (1991). Judgment will be entered for Lovell. Signed by Magistrate Judge Patricia S. Harris on 1/26/2017. (ljb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
NORTHERN DIVISION
ARLENE L. LOVELL

v.

PLAINTIFF

NO. 1:16-cv-00044 PSH

CAROLYN W. COLVIN, Acting Commissioner
of the Social Security Administration

DEFENDANT

MEMORANDUM OPINION AND ORDER

Plaintiff Arlene L. Lovell (“Lovell”) commenced the case at bar by filing a
complaint pursuant to 42 U.S.C. 405(g). In the complaint, she challenged the final
decision of the Acting Commissioner of the Social Security Administration
(“Commissioner”), a decision based upon findings made by an Administrative Law Judge
(“ALJ”).
Lovell maintains that the ALJ’s findings are not supported by substantial evidence
on the record as a whole.1 It is Lovell’s position that her residual functional capacity was
not properly assessed. She maintains that a medical assessment of her ability to do workrelated activities prepared by Dr. Havi Goyal, M.D., (“Goyal”) and Anthony Kelly, P.A.,
(“Kelly”) was erroneously discounted.
1

The question for the Court is whether the ALJ’s findings are supported by substantial evidence on
the record as a whole. “Substantial evidence means less than a preponderance but enough that a
reasonable person would find it adequate to support the decision.” See Boettcher v. Astrue, 652 F.3d 860,
863 (8th Cir. 2011).

The ALJ is required to assess the claimant’s residual functional capacity, which is
a determination of “the most a person can do despite that person’s limitations.” See
Brown v. Barnhart, 390 F.3d 535, 538-39 (8th Cir. 2004). The assessment is made using all
of the relevant evidence in the record, but the assessment must be supported by some
medical evidence. See Wildman v. Astrue, 596 F.3d 959 (8th Cir. 2010). If a treating
physician offers an opinion, it should be given controlling weight if it is “well-supported
by medically acceptable clinical and laboratory diagnostic techniques” and is not
inconsistent with the other substantial evidence. See Choate v. Barnhart, 457 F.3d 865,
869 (8th Cir. 2006) (internal quotations omitted). The ALJ may discount the opinion if
other medical assessments are supported by better or more thorough medical evidence
or where a treating physician renders inconsistent opinions. See Id.
A summary of the evidence relevant to Lovell’s physical limitations reflects that
in April of 2010, she was working as a certified nursing assistant when she injured her
back. See Transcript at 44, 320. Over the course of the next three days, she began
experiencing pain and stiffness in her back, buttocks, and legs. She sought medical
attention for her injury, and Kelly observed the following: “[Lovell] has soft tissue
tenderness at L4-5. [Deep tendon reflexes] are intact. She is neurovascularly intact
distally. [She] has slight decrease in range of motion, and muscle spasm is evident. [She]
was able to get up on the exam table. No labs or x-rays today. [She] is given a Toradol
shot during the appointment 60mg. IM.” See Transcript at 320. A lower back strain and
muscle spasm were diagnosed. She was prescribed medication and withheld from work.
-2-

Goyal and Kelly subsequently saw Lovell on thirteen occasions over the course of
the next three months. See Transcript at 349 (05/02/2010), 348 (05/05/2010), 347
(05/08/2010), 346 (05/15/2010), 345 (05/16/2010), 344 (05/19/2010), 343 (05/26/2010),
342 (06/01/2010), 341 (06/24/2010), 340 (07/06/2010), 339 (07/15/2010), 338
(07/16/2010), 337 (08/16/2010). The progress notes from the examinations reveal that
Lovell continued to experience pain, but trigger point injections and medication help
reduce the severity of her pain. A May 10, 2010, x-ray revealed the following: “The spine
alignment is anatomic. There is mild dis[c] space narrowing at the L5-S1 level, as well
as in the lower thoracic spine. The vertebral body heights are well maintained with small
osteophytes noted. The adjacent bony and soft tissue structures are unremarkable.” See
Transcript at 319. No acute abnormalities were observed, but mild degenerative changes
to her lumbar spine were observed. She continued to be diagnosed with lower back pain
and muscle spasm. A December 23, 2010, MRI revealed a “broad-based” disc protrusion
and “[m]ild facet arthropathy at L4-L5 and “diffuse” disc bulging at L3-L4 and T12-L1
that likely causes no more than mild stenosis. See Transcript at 279.
Beginning in June of 2011 and continuing through November of 2011, Goyal and
Kelly saw Lovell again on ten occasions for her back pain. See Transcript at 336
(06/28/2011), 335 (07/18/2011), 334 (08/05/2011), 333 (08/15/2011), 332 (09/01/2011),
331 (09/16/2011), 330 (10/13/2011), 329 (10/27/2011), 328 (11/10/2011), 327
(11/23/2011). At the initial examination, Goyal and Kelly’s findings and observations
were as follows:
-3-

... [Lovell] presents to clinic for a follow up for evaluation of a workers
compensation injury. [She] has lower back pain with significant pain in her
buttocks. [She] also has pain in her mid back and upper shoulders. [She]
feels that her pain level is 6 out of 10 today. [Lovell] has been put under
a great deal of strain with her lost car and financial pressure of this case.
This has been causing major depression. Still awaiting to get approval of
case from [worker’s compensation].
... Neck-soft tissue posterior at C5-C7. Pain with extension and flexion.
Slight decreased [m]uscle strength [bilaterally]. [Lovell] has soft tissue
tenderness L4-L5 [bilaterally]. Pain with straight leg [raises]. Muscle
strength is 60% of normal. MRI shows multiple [herniated nucleus pulposus]
lumber spine [t]rigger points [times ten].

See Transcript at 336. Goyal and Kelly diagnosed low back pain, insomnia, muscle spasm,
neck pain, and depression. Medication was prescribed for Lovell’s pain. The progress
notes from Goyal and Kelley’s subsequent examinations of Lovell were largely consistent
in the following respect: Lovell continued to experience pain in her back and buttocks,
and the only relief she obtained was through trigger point injections.
On May 2, 2012, Goyal and Kelly prepared a medical assessment of Lovell’s ability
to do work-related activities. See Transcript at 281-283. Goyal and Kelly represented, in
part, that Lovell’s impairments give rise to the following limitations: 1) she cannot lift
any amount of weight frequently and can lift no more than five pounds occasionally; 2)
she can walk for a total of one hour a day but can only walk for fifteen minutes without
interruption; and 3) although she can sit for a total of eight hours a day, she can only sit
for fifteen minutes without interruption. Goyal and Kelly represented that Lovell’s
impairments prevent her from, in part, climbing, stooping, and pushing/pulling.

-4-

On April 21, 2013, Dr. Jonathan Schwartz, M.D., (“Schwartz”) saw Lovell for a
consultative physical evaluation. See Transcript at 285-289. He noted her complaints of
low back and joint pain and listed her medications as “Hydrocodone, Ibuprofen,
Gabapentin, and Carisoprodol.” See Transcript at 286. With respect to her activities of
daily living, he observed the following:

[Lovell] is able to dress herself but will sometimes get help with her socks.
She is able to do her own hygiene but will sometimes get help with her
hair. She does “very little” cooking and dishes. She does not do any
vacuuming, mopping, or yard work. She goes shopping. She has a driver’s
license but does not drive due to leg spasms. She denies any hobbies.

See Transcript at 286. Schwartz examined Lovell and observed, in part, that she was able
to walk without assistance or difficulty and could sit comfortably. She was unable,
though, to lie on the examination table because of her back pain, and it prevented him
from assessing her range of motion in her hips and knee. He observed that she had a
decreased range of motion in the lumbar portion of her spine, right knee swelling, and
crepitus in her knees bilaterally. He diagnosed low back pain likely secondary to
degenerative disc disease, and he could not rule out radiculopathy. He also diagnosed
joint pain likely secondary to tendonitis and degenerative joint disease. Schwartz opined
that Lovell was capable of lifting and carrying up to fifty pounds occasionally and twentyfive pounds frequently, standing and walking for up to six hours in a day, and sitting for
up to six hours in a day. Although he was unable to assess all postural limitations, he
opined that she could only occasionally stoop.
-5-

On April 29, 2013, Dr. Keith Whitten, M.D., (“Whitten”) saw Lovell for a
consultative psychiatric evaluation. See Transcript at 285-289. He observed, in part, that
she appeared to be in pain, frequently shifting and changing positions. When she sat, she
pressed down on the arm of her chair. With respect to her activities of daily living, he
observed the following:

Currently, [Lovell] lives in a house with her boyfriend. She has been there
for three years. She is able to bathe and dress herself but needs help with
her shoes. Sometimes it is hard to get on her underwear. Her boyfriend
does most of the housework. Her daughter helps out. She cannot bend past
her knees. She cannot go camping anymore. She has to take a nap in the
afternoon. She lead a dull, boring life. She prepares meals with the
microwave. She walks around the yard for exercise. She likes to be outside
or she gets depressed. No Facebook, no computer.

See Transcript at 293. Whitten examined Lovell and observed, in part, that her gait was
slow, and she moved painfully. His diagnoses included a pain disorder, and he opined, in
part, that her chronic pain and physical limitations contribute to some anxiety and
depression.
On July 24, 2013, Dr. Harpreet Johl, M.D., (“Johl”) saw Lovell for her complaints
of continued back pain. See Transcript at 300. He examined her and found, in part, the
following:

... BACK: examination of the LS spine, there is no swelling, no bruising, no
broken skin. Forward bending test no scoliosis is seen. There is no
tenderness on palpation of the lumbosacral spine. No sacroiliac joint
tenderness noted. Straight leg raising test is negative bilaterally.
EXTREMITIES: no pedal edema. Gait is within normal limits.
-6-

See Transcript at 300. His diagnoses included chronic low back pain, but he prescribed
no medication.
On March 10, 2015, or sixteen days before the ALJ’s decision denying Lovell’s
applications for disability insurance benefits and supplemental security income payments,
Lovell was seen by Dr. Robert Baker, M.D., (“Baker”) for a new patient consultation. See
Transcript at 358-361.2 Baker recorded Lovell’s complaints of pain and noted that she
characterized her low back pain as an “aching, throbbing, stabbing, cramping, and
tingling” pain that “radiates to bilateral lower extremities.” See Transcript at 358. She
denied muscle cramps, loss of muscle bulk, joint swelling, arthritis, limitation of joint
movement, muscle pain, or tenderness, but did report “leg weakness and gait
unsteadiness.” See Transcript at 359. Baker examined Lovell and made, in part, the
following observations:

Joints-Hips/SI Joint: Palpation of bilateral sacroiliac joints reproduced pain.
Musculoskeletal: Gait and station antalgic. Normal lumbar lordosis and
normal thoracic kyphosis. No [scoliosis] or abnormal thoracic kyphosis is
noted. Palpation of lumbar facet joints at L3-4, L4-5, and L5-S1 level
reproduced lower back pain. Hyperextension at lumbar spine reproduced
lower back pain. Stooping 20-30 degrees relief pain. Bilateral facets loading
maneuver by lateral flexion/bending reproduced pain. Bilateral lateral
rotation also cause pain. Bilateral straight leg raise test positive.

2

Baker’s notes from his new patient consultation with Lovell were not presented to the ALJ for his
consideration. Baker’s notes, though, were subsequently made a part of the record and considered by the
Appeals Council when it considered Lovell’s request for review. See Transcript at 4.

-7-

See Transcript at 359. Baker diagnosed lumbago, chronic pain syndrome, sciatica,
lumbosacral spondylosis without myelopathy, lumbar stenosis, and degenerative
thoracic/thoracolumbar intervertebral disc. He advised Lovell to maintain her normal
activites but advised against bed rest. Because she had “failed conservative treatment,”
see Transcript at 360, he largely recommended steroid injections.
Baker saw Lovell for pain management on at least two other occasions. See
Transcript at 363-365 (04/16/2015), 366-368 (05/12/2015). The progress notes from the
examinations are unremarkable and simply reflect that she was treated for her pain.
Lovell’s medical records were reviewed by state agency medical professionals. See
Transcript at 87-98, 113-124. In short, the professionals opined that she was capable of
performing light, unskilled work.
Lovell and her boyfriend completed a series of documents in connection with her
applications. See Transcript at 228-236, 237-248, 249-257. In the documents, she
represented that she was born on November 2, 1962, and became disabled and unable
to work on June 23, 2012. See Transcript at 87. She represented that her postural
limitations include difficulty lifting, standing, walking, and sitting. Lovell and her
boyfriend represented that she has difficulty attending to her personal care, preparing
meals, and doing more than minimal work around the house. She described a typical day
as involving the following: “I get up very stiff and hurting from shoulders to feet. I have
a cup of coffee and watch morning news. I take a shower and get dressed [and] take my
pain pill. [Then, I] sit down.” See Transcript at 250.
-8-

The record contains a summary of Lovell’s FICA earnings. See Transcript at 206.
The summary reflects that she has a good work history, having had regular and consistent
earnings from a number of years.
Lovell testified during the administrative hearing. See Transcript at 44-60. She has
not worked since the April of 2010 accident in which she injured her back. Her pain
prevents her from driving an automobile and prevents her from walking more than two
city blocks at one time. She stays at home most of the day and requires assistance in
attending to her personal care. Lovell can perform some household chores, but her
daughter helps with the bulk of the chores. Medication and injections help relieve her
pain, but the pain soon returns. Changing positions also helps relieve her pain, but she
cannot stand, walk, or sit for any substantial length of time. She has difficulty lifting and
cannot lift more than approximately five pounds at one time.
The ALJ found at step two of the sequential evaluation process that Lovell’s severe
impairments include degenerative disc disease, a pain disorder, and crepitus in her
knees. The ALJ assessed Lovell’s residual functional capacity and found that she can
perform sedentary work, although she has the following additional limitations caused by
her physical impairments:

... [Lovell] can lift and carry up to 10 pounds occasionally, sit for six hours
in an eight-hour workday, stand and/or walk two hours in an eight-hour
workday and occasionally stoop, crouch, bend, kneel, crawl, and balance.
... In addition, [she] possess the skills identified by the vocational expert
obtained from her past relevant work as a head cook.

-9-

See Transcript at 19. In making the assessment, the ALJ observed the following with
respect to the severity of Lovell’s pain:

[Lovell] has not received the type of treatment one typically associates
with a completely disabled individual. She has not required any repeated
hospitalizations of an extended duration or surgeries. Neither has she
needed frequent ER visits due to exacerbations. X-rays and MRIs showed no
acute findings. [She] testified that she had not had any surgeries since she
was a child. Dr. Schwartz opined [Lovell] could perform less than medium
work. July 2013 notes show [Lovell] had a normal back exam and that her
gait was within normal limits. [She] does not require an assistive device to
ambulate. ... In addition, [she] and her boyfriend have described daily
activities that are not limited to the extent one would expect, given the
complaints of disabling symptoms and limitations. ...

See Transcript at 23. The ALJ assigned some weight to the opinions of Whitten, Schwartz,
and the state agency medical professionals but assigned little weight to the opinions
offered by Goyal and Kelly. The ALJ assigned little weight to Goyal and Kelly’s opinions
because their opinions were “inconsistent with the record as a whole” for the following
reasons:

... First, Mr. Kelly is not an acceptable medical source for Social Security
purposes. There are no examination findings such as range of motion or
straight-leg-raise testing to accompany the completed form. The lack of
ongoing medical treatment also suggests that [Lovell’s] back pain was not
as severe as Mr. Kelly and Dr. Goyal indicated. A more recent consultative
physical exam showed [Lovell] could perform less than medium work.
Finally, July 2013 notes from [her] most recent office visit show that she
reported her back pain did not radiate. A back exam was normal and a
straight-leg raise test was negative. There was no pedal edema and her gait
was within normal limits. ...

-10-

See Transcript at 24. The ALJ found at step four that Lovell cannot return to her past
relevant work but found at step five that there is other work she can perform.
Lovell challenges the ALJ’s treatment of the opinions offered by Goyal and Kelly,
the former being a treating physician. The ALJ’s decision to accord little weight to
Goyal’s opinions is not something the Court takes lightly. A treating physician like Goyal
is “usually more familiar with a claimant’s medical condition than are other physicians
...” See Thomas v. Sullivan, 928 F.2d 255, 259 n.3 (8th Cir. 1991) [internal quotation
omitted]. On the record now before the Court, it cannot be said that substantial evidence
on the record as a whole supports the weight given Goyal and Kelly’s opinions. The Court
so finds for the following reasons.
First, the ALJ discounted Goyal and Kelly’s opinions because Kelly is not an
“acceptable medical source.” Kelly is a physician’s assistant and, as such, is not an
“acceptable medical source.” As Lovell correctly points out, though, the opinions were
made by both Goyal and Kelly, the former clearly being an “acceptable medical source.”
The opinions may therefore be properly deemed to be fully Goyal’s opinions.
Second, the ALJ discounted Goyal and Kelly’s opinions because there were no
“examination findings such as range of motion or straight-leg-raise testing to accompany
the completed form.” Their opinions, though, were based upon the results of an MRI and
the findings and observations they made during their approximately twenty-three
examinations of Lovell between April 30, 2010, and November 23, 2011, examinations
that included straight-leg-raise testing.
-11-

Third, the ALJ discounted Goyal and Kelly’s opinions because a lack of ongoing
medical treatment suggests that Lovell’s back pain is not as severe as Goyal and Kelly
believe. Without question, there are gaps in the treatment record. The gaps do not
necessarily undermine Goyal and Kelly’s opinions, though, as Goyal and Kelly were
offering their opinions based upon their own testing and examination of Lovell, not on
the basis of other physician’s findings or the record as a whole.
Fourth, the ALJ discounted Goyal and Kelly’s opinions because the opinions were
inconsistent with the opinions offered by Schwartz, a consulting physician. Clearly, the
ALJ can give greater weight to the opinions of a consulting physician than the opinions
of a treating physician. See Anderson v. Barnhart, 344 F.3d 809 (8th Cir.2003). The
consulting physician’s opinions, like the treating physician’s opinions, must be wellsupported by medically acceptable clinical and laboratory diagnostic techniques. It
appears that Schwartz did no new testing but simply relied upon much of the same
testing relied upon by Goyal and Kelly. Schwartz simply reached a different conclusion
than Goyal and Kelly. The record does not contain an adequate explanation for why
Schwartz’s opinions were credited, and Goyal and Kelly’s opinions discounted, when they
all relied upon much of the same testing.
The consulting physician’s opinions must also not be inconsistent with other
substantial evidence. The Court has some concern about the consistency of Schwartz’s
opinions with the other substantial evidence. For instance, he opined that Lovell is
capable of lifting and carrying up to fifty pounds occasionally and twenty-five pounds
-12-

frequently and standing and walking for up to six hours in a day. There is no support in
the record for such opinions. It is true that the sitting limitations offered by Schwartz is
largely consistent with the findings and observations made by Johl, but the limitation is
largely inconsistent with the findings made by Baker.
Fifth, the ALJ discounted Goyal and Kelly’s opinions because the opinions were
inconsistent with the findings and observations made by Johl, who found Lovell to have
a normal back and negative straight-leg-raises. Johl, though, performed no testing, and
the Court has some concern about the consistency of his findings and observations with
the other substantial evidence. For instance, his opinions are inconsistent with the
findings and observations made by Baker.
The opinion evidence in this case is varied and paints substantially different
pictures of Lovell’s ability to perform work-related activities. Although it is the ALJ’s
responsibility to resolve conflicts among the various opinions, see Bentley v. Shalala, 52
F.3d 784 (8th Cir. 1995), the Court would benefit from the ALJ re-evaluating the various
opinions. This need is particularly great because the ALJ never had an opportunity to
consider Baker’s findings and observations.
It is for the foregoing reasons that substantial evidence on the record as a whole
does not support the ALJ’s assessment of Lovell’s residual functional capacity. A remand
is therefore necessary. Upon remand, the ALJ shall solicit Baker’s opinions of Lovell’s
work-related abilities, shall re-evaluate all of the competing opinions, and re-assess
Lovell’s residual functional capacity.
-13-

The Commissioner’s decision is reversed, and this case is remanded. The remand
in this case is a “sentence four” remand as that phrase is defined in 42 U.S.C. 405(g) and
Melkonyan v. Sullivan, 501 U.S. 89 (1991). Judgment will be entered for Lovell.
IT IS SO ORDERED this 26th day of January, 2017.

UNITED STATES MAGISTRATE JUDGE

-14-