Moore v. Social Security Administration

Filing 13

MEMORANDUM OPINION AND ORDER that the Commissioner's decision is reversed and remanded for action consistent with this Opinion; this is a "sentence four" remand. Signed by Magistrate Judge Beth Deere on 7/24/13. (vjt)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
PATRICIA MOORE
V.

PLAINTIFF
CASE NO.: 2:12CV00111 BD

CAROLYN W. COLVIN, Acting Commissioner,
Social Security Administration1

DEFENDANT

MEMORANDUM OPINION AND ORDER
Plaintiff Patricia Moore appeals the final decision of the Commissioner of the
Social Security Administration (the “Commissioner”) denying her claim for Disability
Insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”). For the
following reasons, the decision of the Commissioner must be REVERSED and
REMANDED.
I.

Background
On July 15, 2009, Ms. Moore filed for DIB, alleging disability beginning on

January 6, 2009, due to a nervous disorder, diabetes mellitus, a short leg, and hip, leg, and
back pain. (Tr. 117, 123) Ms. Moore’s claims were denied initially and upon
reconsideration. At her request, an Administrative Law Judge (“ALJ”) held a hearing on
December 8, 2010, at which Ms. Moore appeared with her attorney. (Tr. 24) During the

1

On February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of
the Social Security Administration. She has been substituted for named Defendant
Michael J. Astrue under Fed.R.Civ.P. 25.

hearing, the ALJ heard testimony from Ms. Moore and a vocational expert (“VE”). (Tr.
24-55)
The ALJ issued a decision on January 28, 2011, finding that Ms. Moore was not
disabled under the Act. (Tr. 13-20) On April 26, 2012, the Appeals Council denied Ms.
Moore’s request for review, making the ALJ’s decision the Commissioner’s final
decision. (Tr. 1-5)
Ms. Moore was fifty-seven years old at the time of the hearing. (Tr. 29) She lived
with her two daughters and three grandchildren. (Tr. 29) She had completed high school
and had some college credits. (Tr. 30) At the time of the hearing, she was working four
hours a day answering telephones. (Tr. 30-31) Ms. Moore testified that she had to take
pain medication and Valium in order to work for a four-hour period. (Tr. 31)
II.

Decision of the Administrative Law Judge
The ALJ followed the required sequential analysis to determine: (1) whether the

claimant was engaged in substantial gainful activity; (2) if not, whether the claimant had a
severe impairment; (3) if so, whether the impairment (or combination of impairments)
met or equaled a listed impairment; and (4) if not, whether the impairment (or
combination of impairments) prevented the claimant from performing past relevant work;
and (5) if so, whether the impairment (or combination of impairments) prevented the
claimant from performing any other jobs available in significant numbers in the national
economy. 20 C.F.R. § 404.1520(a)-(g) (2005).

2

The ALJ found that Ms. Moore had worked, but had not engaged in substantial
gainful activity since her alleged disability onset date. (Tr. 15) And she found that Ms.
Moore had the following severe impairments: diabetes mellitus and osteoarthrosis. (Tr.
15) The ALJ found that Ms. Moore’s hypertension and adjustment disorder were
nonsevere. (Tr. 15-16) The ALJ found that Ms. Moore did not have an impairment or
combination of impairments meeting or equaling an impairment listed in 20 C.F.R. Part
404, Subpart P, Appendix 1 (20 C.F.R. § 404.1526). (Tr. 17)
The ALJ determined that Ms. Moore had the residual functional capacity (“RFC”)
to perform light work, except that she could only occasionally climb ramps and stairs and
could never climb ladders due to shaking in her hands. She could occasionally balance,
stoop, kneel, crouch, and crawl. She would also need the option to sit or stand at will.
(Tr. 17-20)
After hearing VE testimony, the ALJ determined that Ms. Moore was capable of
performing her past relevant work as a registration clerk, accounts receivable supervisor,
and telephone answer operator. (Tr. 20, 53-54) Because the ALJ determined that Ms.
Moore could perform past relevant work, she denied benefits at Step Four. (Tr. 20) See
20 C.F.R. § 404.1520(a)(4)(iv).

3

III.

Analysis
A.

Standard of Review

In reviewing the Commissioner’s decision, this Court must determine whether
there is substantial evidence in the record as a whole to support the decision. Boettcher v.
Astrue, 652 F.3d 860, 863 (8th Cir. 2011); 42 U.S.C. § 405(g). Substantial evidence is
“less than a preponderance, but sufficient for reasonable minds to find it adequate to
support the decision.” Id. (citing Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir.
2005)).
In reviewing the record as a whole, the Court must consider both evidence that
detracts from the Commissioner’s decision and evidence that supports the decision; but,
the decision cannot be reversed, “simply because some evidence may support the opposite
conclusion.” Id. (citing Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir. 2006)).
Ms. Moore arguges that the ALJ’s decision was not supported by substantial
evidence because the ALJ erred in finding that she could return to her past relevant work.
(#11) Ms. Moore bases this argument on the ALJ’s credibility determination and the
limited weight given to the opinions of treating physician. (#11, pp. 9-15)
A.

Treating Physician’s Opinion on Disability

Ms. Moore argues that the ALJ improperly discounted the opinion of her treating
physician, Thomas O. Bailey, M.D. Dr. Bailey noted on several occasions that he did not
think Ms. Moore could work. (Tr. 226, 227) This argument is not well taken because a

4

physician’s opinion that a claimant is disabled is not entitled to deference. See House v.
Astrue, 500 F.3d 741, 745 (8th Cir. 2007) (“A treating physician’s opinion that a claimant
is disabled or cannot be gainfully employed gets no deference because it invades the
province of the Commissioner to make the ultimate disability determination”).
After the ALJ had issued her decision, Dr. Bailey described specific limitations in
an update to Ms. Moore’s medical condition. (Tr. 233) The stated limitations directly
conflict with the ALJ’s determination that Ms. Moore could perform light work. (Tr. 17,
233) Unfortunately for Ms. Moore, this evidence was not available to the ALJ before she
denied the application. Based on the medical record before the ALJ, she did not err in
discounting Dr. Bailey’s opinion that Ms. Moore was unable to work.
D.

Credibility Determination

Under 20 C.F.R. § 404.1529, an ALJ must consider all symptoms, including pain,
and the extent to which those symptoms are consistent with the objective medical
evidence. The ALJ must also consider specific factors when evaluating a claimant’s
subjective allegations and complaints. Polaski v. Heckler, 751 F.2d 943 (8th Cir. 1984).
An ALJ’s conclusions may be upheld if the record as a whole supports them. Dunahoo v.
Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001). Ms. Moore argues the ALJ performed a
cursory and incomplete credibility assessment. (#11, p. 9-11)
Ms. Moore testified at the hearing that her hand tremors and chronic pain
precluded her from working full-time and that she had not been able to drive for some

5

time. (Tr. 29) She testified that she had to take pain medication and Valium to perform
her part-time work. (Tr. 31, 42) The ALJ found that this part-time work was not
performed at a level considered to be substantial gainful activity. (Tr. 15) Ms. Moore
missed days from this part-time work due to pain. (Tr. 40) She also noted significant
limitations in sitting and standing due to pain. (Tr. 32, 33, 39, 46, 48)
Ms. Moore testified about shaking in both hands. (Tr. 33-36, 44, 49) She used
pain medication and Valium daily to control both her pain and shaking. (Tr. 36) Several
of her past coworkers provided third-party statements corroborating Ms. Moore’s
testimony about her pain and hand tremors. (Tr. 228-229, 230)
The ALJ stated that Ms. Moore’s treating physician did not specifically mention
tremors. (Tr. 37-38) This is true, but at least one physician did note that Ms. Moore had
“noticeable hand tremors.” (Tr. 193)
In her credibility analysis, the ALJ briefly noted some of the factors relevant to
credibility, but she did not discuss how the factors applied to the evidence in this case.
(Tr. 18-19) The ALJ provided only the following three-sentence analysis:
The claimant has not provided a credible recitation of factors relating to the
nature, location, onset, duration, frequency, radiation, and intensity of her
pain. There is no indication that claimant requires pain management
beyond over the counter analgesics. By self report, she has never been
prescribed a special treatment that didn’t work. (Tr. 19)
As set out above, the ALJ’s observation that Ms. Moore required only over-the-counter
analgesics is not supported by the record. Ms. Moore testified that she took pain pills.

6

She testified that she required the pain medication to perform part-time work. (Tr. 31, 42)
Contrary to the ALJ’s finding, the medical record shows prescriptions for Darvocet,
Lortab, Lyrica, and Valium. (Tr. 216, 222-223) Ms. Moore even described side effects
from her pain medication usage. (Tr. 33, 40, 42)
The Commissioner argues that the medical records were unclear as to what
medications were prescribed for Ms. Moore’s various ailments. (#12, p. 13) If the
records were unclear, the ALJ should have resolved the discrepancy rather than assume
that Ms. Moore’s pain management did not require prescription medications, particularly
in the light of clear evidence that Ms. Moore did take prescription pain medications.
Even though credibility was a central issue in this case, the ALJ’s discussion was
surprisingly brief. See Curran-Kicksey v. Barnhart, 315 F.3d 964, 968 (8th Cir. 2003)
(objective medical evidence, prior work history, daily activities, duration, frequency, and
intensity of pain, precipitating or aggravating factors, dosage, effectiveness, and side
effects of medication, and functional restrictions are all factors to consider when
assessing the credibility of a claimant’s subjective allegations). An ALJ is not required to
discuss each Polaski factor, of course, but she must acknowledge and consider the factors
before discounting a claimant’s subjective complaints. Jones v. Astrue, 619 F.3d 963,
975 (8th Cir. 2010)(citing Moore v. Astrue, 572 F.3d 520, 524 (8th Cir. 2009). Here, the
ALJ’s brief discussion discounting Ms. Moore’s credibility leaves the Court to guess
whether she considered relevant factors.

7

In addition, despite Ms. Moore’s testimony, third party statements, and at least one
physician observing “noticeable hand tremors,” the ALJ failed to discuss limitations
related to shaking or hand tremors beyond restricting her ability to climb ladders. (Tr. 17,
33-36, 44, 49, 193, 228-229, 230) This was error. If hand tremors affected her ability to
hold onto rungs of a ladder, surely Ms. Moore’s abilities to work with her hands also
would have been affected.2
IV.

Conclusion
After considering the record as a whole, the Court concludes that the

Commissioner’s decision is not supported by substantial evidence. Therefore, the
Commissioner’s decision is reversed and remanded for action consistent with this
opinion. This is a “sentence four” remand within the meaning of 42 U.S.C. § 405(g) and
Melkonyan v. Sullivan, 501 U.S. 89 (1991).
IT IS SO ORDERED this 24th day of July, 2013.

___________________________________
UNITED STATES MAGISTRATE JUDGE

2

The ALJ found that Ms. Moore could not climb ladders due to shaking, but did
not find that Ms. Moore suffered from any severe impairment that would cause tremors.
(Tr. 15-17) Based on her finding that Ms. Moore could not climb ladders due to shaking,
the ALJ apparently found evidence of tremors to be credible; yet she did not include any
limitations on Ms. Moore’s ability to drive, write, type, or use a telephone. The ALJ did
not explain the contradition, and the Court cannot. (Tr. 17-20)
8