Cole v. Social Security Administration

Filing 15

ORDER REMANDING TO THE COMMISSIONER. The Court finds that the ALJ's decision is not supported by substantial evidence. The ALJ is instructed to reevaluate Cole's credibility and to order a consultative evaluation regarding Cole's exertional limitations and the effect of Cole's alleged residual numbness on his ability to work. Signed by Magistrate Judge J. Thomas Ray on 8/1/2016. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
ROBERT COLE
v.

PLAINTIFF
No. 3:15-CV-00127-JTR

CAROLYN W. COLVIN,
Acting Commissioner,
Social Security Administration

DEFENDANT

ORDER REMANDING TO THE COMMISSIONER
Robert Cole (“Cole”) applied for social security disability benefits with an
alleged onset date of March 15, 2012. (R. at 166). After a hearing, the
administrative law judge (“ALJ”) denied Cole’s applications. (R. at 30). The
Appeals Council denied review, rendering the ALJ’s decision the final decision of
the Commissioner. (R. at 1). Cole has requested judicial review.
For the reasons stated below, this Court1 reverses and remands the
Commissioner’s decision.
I.

The Commissioner’s Decision
The ALJ found that Cole had the severe impairments of degenerative disc

disease of the lumbar spine; cervical fracture versus motion artifact; headaches;
obesity; gastroesophageal reflux disease; osteoarthritis; anxiety disorder; and
depressive disorder. (R. at 122). Based on those impairments, the ALJ found that
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The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge. Doc. 4.

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Cole had the residual functional capacity (“RFC”) to perform light work, with the
following restrictions: he must sit and stand at will throughout the day; cannot
climb ladders, ropes, or scaffolds; can occasionally climb ramps and stairs,
balance, stoop, kneel, crouch, and crawl; cannot work around hazards; can
frequently reach overhead; can only have occasional changes to the workplace; is
limited to tasks that have a complexity of one or two steps and are learned and
performed by rote with few variables and little judgment; requires supervision that
is simple, direct, and concrete; and can perform simple jobs that can be learned
within thirty days. (R. at 124).
Relying on the testimony from a vocational expert (“VE”), the ALJ found
that Cole could not perform any of his past relevant work but could perform other
jobs such as office helper or cashier. (R. at 129-30). Thus, the ALJ held that Cole
was not disabled at step 5 of the five-step evaluative process.
II.

Discussion
Cole asserts that the ALJ erred in finding that his testimony was not fully

credible. He also maintains that the ALJ failed to fully develop the record and
should have included manipulative limitations based on a lack of feeling in Cole’s
hands.
This Court reviews the Commissioner’s decision to ensure that it is not
based on legal error and is supported by substantial evidence in the record as a
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whole. Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997). “Substantial evidence in
the record as a whole” has been defined to mean “less than a preponderance, but
enough that a reasonable mind would find it adequate to support the ALJ’s
decision.” Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009). Even if two
inconsistent conclusions can be drawn from the evidence, the Court must affirm if
one of those conclusions is consistent with the ALJ’s findings. Milam v. Colvin,
794 F.3d 978, 983 (8th Cir. 2015).
A.

The ALJ’s Credibility Determination

The ALJ found that Cole had severe impairments but that his statements
concerning the intensity, persistence, and limiting effects of the symptoms were
not entirely credible. (R. at 126). Cole maintains that the ALJ improperly
discounted his subjective complaints of pain by only considering whether those
complaints were supported by objective medical evidence.
“[T]he ALJ may disbelieve subjective complaints if there are inconsistencies
in the evidence as a whole.” Goff v. Barnhart, 421 F.3d 785, 792 (8th Cir. 2005).
When making determinations regarding the credibility of a claimant's subjective
allegations of pain, the ALJ must examine: (1) the claimant's daily activities; (2)
the duration and intensity of the pain; (3) the precipitating and aggravating factors;
(4) dosage, effectiveness, and side effects of medication; and (5) functional
restrictions. Miller v. Sullivan, 953 F.2d 417, 420 (8th Cir. 1992) (citing Polaski v.
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Heckler, 739 F.2d 1320, 1322 (1984)). The ALJ may not discount subjective
complaints simply because they lack support in the medical record. Id. “When
rejecting a claimant's complaints of pain, the ALJ must make an express credibility
determination, must detail reasons for discrediting the testimony, must set forth the
inconsistencies, and must discuss the Polaski factors.” Baker v. Apfel, 159 F.3d
1140, 1144 (8th Cir. 1998). This Court will defer to the ALJ’s credibility
determination if it is supported by good reasons and substantial evidence. Turpin v.
Colvin, 750 F.3d 989, 993 (8th Cir. 2014). However, the Eighth Circuit has
“cautioned … that an ALJ may not circumvent the rule that objective evidence is
not needed to support subjective complaints of pain under the guise of a credibility
finding.” Penn v. Sullivan, 896 F.2d 313, 316 (8th Cir. 1990).
When discussing Cole’s credibility, the ALJ simply states that his statements
“are not entirely credible for the reasons explained in this decision.” (R. at 126).
The discussion that follows concerns Cole’s physical RFC, and it discusses only
medical records. (R. at 126-27). The ALJ “notes the claimant’s subjective
complaints of pain are out of proportion to the objective medical evidence.” (R. at
127). The Commissioner maintains that the ALJ considered all of the Polaski
factors, but the ALJ identifies no inconsistencies between Cole’s complaints and
any other part of the record. The decision contains no explanation for the finding

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that Cole was not credible aside from stating that objective medical evidence does
not support Cole’s subjective complaints of pain.
Cole’s physicians do not suggest that he is a malingerer, nor is there any
indication in the record that he is exaggerating his symptoms. Cole reported limited
activities of daily living. (R. at 264-71). A sister cleans his house, and Cole uses a
scooter when shopping and a shower chair when bathing. (R. at 125). He avoids
driving because some of his medications have caused seizures in the past. (R. at
141). The ALJ pointed to no evidence inconsistent with these statements. Cole’s
mother provided a Third Party Function Report that is consistent with Cole’s
statements. (R. at 281-90). The ALJ did not give any significant consideration or
weight to this statement, citing to SSR 06-03P in support of the lack of
consideration. However, SSR 06-03P states that “we consider all relevant evidence
in the case record when we make a determination or decision about whether the
individual is disabled.” SSR 06-03P, 2006 WL 2329939 at *4. The consistency of
the foregoing statements and the lack of evidence supporting the ALJ’s credibility
determination cause this Court to conclude that the ALJ erred in his credibility
analysis.

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B.

Development of the Record

Cole asserts that the ALJ also erred by not fully developing the record
regarding his exertional limitations. No treating or examining physician offered an
opinion regarding Cole’s physical capabilities.
It is the duty of the ALJ to fully and fairly develop the record. Strongson v.
Barnhart, 361 F.3d 1066, 1071 (8th Cir. 2004). An ALJ errs in failing to order a
consultative examination where it is necessary in order to make an informed
decision. Dozier v. Heckler, 754 F.2d 274, 276 (8th Cir. 1985). It is only necessary
to recontact treating physicians or order consultative examinations where the
record is undeveloped on a critical issue. Martise v. Astrue, 641 F.3d 909, 926-27
(8th Cir. 2011).
Cole cites to Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2001), where the
Court reversed and remanded due to a lack of opinion evidence from the claimant’s
treating physicians. The Commissioner relies on Page v. Astrue, 484 F.3d 1040
(8th Cir. 2007), where the Court held that the evidence was sufficient despite the
lack of a treating physician’s opinion on the claimant’s ability to perform workrelated activities. However, in Page, substantial evidence showed that the
claimant’s condition had improved and that her pain had been substantially
reduced due to treatment. Id. at 1043. This evidence included: treatment records

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from her treating physicians; state-agency opinions regarding her physical
capabilities; and the claimant’s subjective complaints and her testimony.
The facts in this case more closely resemble Nevland than Page. As
indicated earlier, in Page, treating physicians reported that the claimant had
experienced a reduction in pain and expressed at least some opinions of her range
of motion and the success of treatment, and the claimant’s own testimony
supported the RFC. Id. Here, Cole’s testimony and reported activities of daily
living stand in contrast to the RFC assessment, and no treating physician has
expressed an opinion that his condition has improved or that he is capable of any
type of productive activity.
Additionally, Cole testified that he has no feeling in his hands after his
carpal tunnel surgery, which causes him not to realize when he is burning or
freezing his hands. (R. at 142-43). Both Cole and his mother reported that he has
difficulty using his hands. (R. at 269, 287). In determining the RFC, the ALJ
included no manipulative limitations to account for this impairment. Cole argues
that the ALJ should have included manipulative limitations because of this
condition.
The ALJ only briefly mentioned Cole’s testimony regarding his hands and
incorrectly stated that Cole testified to having “hand pain,” for which he has not
sought treatment, rather than serious residual numbness. (R. at 123). The record
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does not contain sufficient information regarding Cole’s lack of feeling in his
hands for the Court to determine whether additional restrictions are necessary for
the RFC.
Because the record does not contain sufficient evidence to support the ALJ’s
RFC determination, additional information is required, including evidence
concerning any exertional limitations and whether Cole has any manipulative
limitations related to the lack of feeling in his hands.
III.

Conclusion
For the foregoing reasons, the Court finds that the ALJ’s decision is not

supported by substantial evidence. On remand, the ALJ is instructed to reevaluate
Cole’s credibility and to order a consultative evaluation regarding Cole’s
exertional limitations and the effect of Cole’s alleged residual numbness on his
ability to work.
It is so ordered this 1st day of August, 2016.

____________________________________
UNITED STATES MAGISTRATE JUDGE

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