Thorn v. Social Security Administration

Filing 20

DOCKET ENTRY FILED IN ERROR - DISREGARD (jak) (Docket text modified on 6/3/2020 to indicate the document was filed in error)(jak)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
TOMMY THORN
V.

PLAINTIFF
NO. 3:16CV00208-JTR

NANCY A. BERRYHILL,1
Acting Commissioner,
Social Security Administration

DEFENDANT

ORDER
I.

Introduction:
Plaintiff, Tommy Thorn, applied for disability benefits on March 22, 2014,

alleging an onset date of January 1, 2013. (Tr. at 9). His claims were denied initially
and upon reconsideration. Id. After conducting a hearing, the Administrative Law
Judge (AALJ@) denied Thorn’s application. (Tr. at 9-22). The Appeals Council denied
his request for review. (Tr. at 1). Thus, the ALJ=s decision now stands as the final
decision of the Commissioner. Thorn has requested judicial review.
For the reasons stated below, the Court reverses the ALJ’s decision and
remands for further review.2

Berryhill is now the Acting Commissioner of Social Security and is automatically substituted as
Defendant pursuant to Fed. R. Civ. P. 25(d).
1

2

The parties have consented in writing to the jurisdiction of a United States Magistrate Judge.

II.

The Commissioner=s Decision:
The ALJ found that Thorn had not engaged in substantial gainful activity since

the alleged onset date of January 1, 2013. (Tr. at 11). At Step Two of the five-step
analysis, the ALJ found that Thorn has the following severe impairments:
degenerative disc disease of the cervical and lumbosacral spine, status post cervical
spinal fusion, history of colon resection and hernia repair, and obesity. Id.
After finding that Thorn’s impairments did not meet or equal a listed
impairment (Tr. at 14), the ALJ determined that Thorn had the residual functional
capacity (“RFC”) to perform sedentary work with the following limitations: 1) he
could perform only occasional climbing, stooping, crouching, kneeling, and
crawling; 2) he could not work in unrestricted heights, such as ladders or scaffolding
3) in an eight-hour workday, he could sit six to eight hours, from one to two hours
without interruption; and 4) he could stand and walk no more than two hours. (Tr. at
15). The ALJ relied on the testimony of a vocational expert to find that, based on
Thorn’s age, education, work experience and RFC, he could perform past relevant
work as a quality-control inspector. (Tr. at 21). Based on that determination, the ALJ
held that Thorn was not disabled. Id.

2

III.

Discussion:
A.

Standard of Review

The Court=s function on review is to determine whether the Commissioner=s
decision is supported by substantial evidence on the record as a whole and whether
it is based on legal error. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015); see
also 42 U.S.C. ' 405(g). While Asubstantial evidence@ is that which a reasonable
mind might accept as adequate to support a conclusion, Asubstantial evidence on the
record as a whole@ requires a court to engage in a more scrutinizing analysis:
A[O]ur review is more than an examination of the record for the
existence of substantial evidence in support of the Commissioner=s
decision; we also take into account whatever in the record fairly
detracts from that decision.@ Reversal is not warranted, however,
Amerely because substantial evidence would have supported an
opposite decision.@
Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005) (citations omitted).
B.

Thorn=s Arguments on Appeal

Thorn argues that substantial evidence does not support the ALJ=s decision to
deny benefits. He contends that the ALJ erred: (1) in relying on the opinion of Roger
Troxel, M.D.; (2) in failing to include in the RFC a sitting and overhead reaching
limitation; and (3) in his credibility analysis, which labeled Thorn’s treatment as
conservative. The Court concludes that, based on several errors committed by the
ALJ, his decision was not supported by substantial evidence.
3

First, it appears the ALJ did not properly assess Thorn’s repeatedly elevated
blood pressure. The ALJ briefly reviewed the evidence related to high blood
pressure, and concluded that the record did not establish that hypertension
significantly limited Thorn’s ability to perform basic work activities. The ALJ’s
review of the pertinent evidence relating to high blood pressure was incomplete.
On October 1, 2013, Thorn presented to East Arkansas Family Health Center,
Inc., because his blood pressure medication was not working. (Tr. at 296). Thorn’s
blood pressure that day was 184/110. Id. He indicated that he had been keeping a
daily log of his blood pressure and it was consistently higher than 160/80. Id. He
reported headache and blurry vision, possible markers for high blood pressure. Id.
On October 8, 2013, Thorn reported high blood pressure in spite of taking
double his dose of Benicar. (Tr. at 294). Home tests recorded regularly high blood
pressure. Id. He was feeling flushed, with occasional heart palpitations. Id. The
Advanced Practice Nurse, Amy Johnson, increased Benicar. Id.
On October 29, 2013, Thorn returned to the clinic with a log showing
consistently “uncontrolled” blood pressure and fatigue, despite the increase in his
Benicar. (Tr. at 292).
On December 3, 2013, Thorn’s blood pressure was 185/100 and he had a
constant headache. (Tr. at 289). Johnson recommended further testing by a
4

specialist. (Tr. at 290).
At a January 28, 2014 appointment, Thorn’s blood pressure was 191/89, and
he reported occasional headaches. (Tr. at 286). His face was flushed. Id.
On May 1, 2014, Maximiliano Arroyo, M.D., documented significant
uncontrolled hypertension. (Tr. at 327). He noted that Thorn was still symptomatic
in spite of multiple medications, dietary measures, an exercise regimen, and weight
loss. Id.
On June 30, 2014, a clinic note reveals a hospital visit due to high blood
pressure, which was “better but not optimal.” (Tr. at 320). Dr. Arroyo recommended
the strongest medicine in each class for high blood pressure. Id.
The ALJ erred in dismissing high blood pressure as a non-severe impairment.
The claimant has the burden of proving that an impairment is severe, which by
definition significantly limits one or more basic work activities. Gonzales v.
Barnhart, 456 F.3d 890, 894 (8th Cir. 2006). A physical or mental impairment must
last or be expected to last not less than 12 months. Karlix v. Barnhart, 457 F.3d 742,
746 (8th Cir. 2006).
Thorn suffered from high blood pressure in spite of compliance with
medications and daily monitoring of his condition. His blood pressure was labeled
as “uncontrolled” and required hospitalization. He was referred to a specialist. His
5

condition did not improve over time. Because the ALJ need not apply the standard
rigorous review of evidence for non-severe impairments, erroneously labeling a
severe impairment as non-severe almost always results in prejudice to the claimant.
In this case, high blood pressure remained a consistent problem for Thorn, and the
ALJ should have given it more consideration.
In discussing the weight given to the opinion of Dr. Troxel, who examined
Thorn at the request of the Commissioner, Thorn says that Dr. Troxel’s report is
inconsistent with the objective medical evidence. Thorn avers that, by relying solely
upon Dr. Troxel’s opinion , the ALJ made a flawed RFC determination. He states
that significant back and shoulder pain should have further limited sitting and
reaching in the RFC.
Thorn had cervical fusion surgery in 2002. (Tr. at 33). On July 11, 2014, he
complained of ripping pain in his shoulders and neck. (Tr. at 342). On August 11,
2014, he had worse pain in his shoulder, exacerbated by lifting. (Tr. at 339). Thorn
underwent physical therapy throughout July, August, and September 2014, but his
pain was worse after his sessions. (Tr. at 336). On September 12, 2014, Dr. Tuetken
diagnosed back pain, bilateral shoulder pain, and neck pain. (Tr. at 338).
On September 19, 2014, a cervical MRI revealed moderate degenerative
changes at C4-5, narrowing of the C3-4 canal with mild flattening of the spinal cord,
6

and foraminal stenosis bilaterally. (Tr. at 348). A lumbar MRI revealed herniated
nucleus pulposus (“HNP”) at L4-5 indenting the thecal sac and mildly contacting the
L5 nerve roots. (Tr. at 350). At L5-S1 there was also HNP with slight flattening of
the thecal sac and nerve roots, with associated facet disease. Id. The same condition
was seen at L2-3. Id.
On November 26, 2014, Thorn was seen by John A. Campbell, M.D., a
neurosurgeon. (Tr. at 410-11). Dr. Campbell noted poor ROM in the cervical spine.
(Tr. at 411). He did not recommend surgery but suggested that Thorn see a pain
specialist. Id.
On December 11, 2014, Thorn visited Comprehensive Pain Specialists.
Physical exam revealed decreased and painful ROM in the cervical and lumbar
spine. (Tr. at 432-34). Thorn complained of pain radiating to his hips and legs. (Tr.
at 431). He said heat and a TENS unit seemed to help. Id. Thorn was scheduled for
a cervical spine injection and continued on Tramadol and Flexeril. (Tr. at 433).
Jeffrey Hall, M.D., a pain specialist, administered a cervical branch block on
December 18, 2014, and an additional cervical facet steroid injection on February 9,
2015. (Tr. at 425-27).
On February 23, 2015, Thorn was again treated by Dr. Hall. He reported 75%
improvement, but still had pain in his neck, lower back, hips, and legs. (Tr. at 421).
7

He had painful ROM in the cervical and lumbar spine with diffuse muscle
tenderness. Dr. Hall diagnosed failed back syndrome of the cervical spine,
lumbosacral spondylosis without myelopathy, sacroiliac pain, and myalgia and
myositis. (Tr. at 422).
On April 27, 2015 and May 11, 2015, Dr. Hall performed cervical
radiofrequency ablation on the cervical spine. (Tr. at 454-56). Thorn continued on
Tramadol. Id.
As for Thorn’s shoulders, MRIs on June 23, 2015 revealed rotator cuff tears
in both shoulders. (Tr. at 459-62). On July 21, 2015, Thorn reported shoulder pain
that was worse with activities performed over his head. (Tr. at 465). Two nonexamining reviewing physicians found, in June and July 2014, that Thorn would be
limited in overhead reaching. (Tr. at 62, 76).
On May 14, 2014, Dr. Troxel examined Thorn and found a moderately
reduced ability to walk, stand, lift and carry. (Tr. at 307). He found no decrease in
Thorn’s ability to sit, handle, finger, see, hear, or speak. Id. This was in spite of
decreased ROM in Thorn’s shoulders, knees, and cervical and lumbar spine. (Tr. at
305). Thorn argues that Dr. Troxel’s report was not reflective of his condition.
Indeed, the ALJ relied significantly upon Dr. Troxel’s report as opposed to
the opinions of the non-examining medical consultants. While an ALJ may resolve
8

conflicts among the various treating and examining physicians, a medical opinion
does not control in the face of other credible evidence in the record that detracts from
that opinion. Brown v. Astrue, 611 F.3d 941, 951 (8th Cir. 2010); Wagner v. Astrue,
499 F.3d 842, 848 (8th Cir. 2007). Additionally, "[p]hysician opinions that are
internally inconsistent . . . are entitled to less deference than they would receive in
the absence of inconsistencies." Guilliams v. Barnhart, 393 F.3d 798, 803 (8th Cir.
2005). Dr. Troxel’s opinion was internally inconsistent; he noted decreased range of
motion in several areas, which does not correlate to his finding of “no or only
minimal limitations.”
The ALJ dismissed the non-examining medical consultant opinions because
“due to the timing of their opinions, they did not have the opportunity to review a
significant number of later medical records.” (Tr. at 20). Indeed, all of the state
consultants, including Dr. Troxel, did not have the benefit of reviewing the MRIs of
Thorn’s back, neck and shoulders. Dr. Troxel’s exam was a month prior to either
non-examining consultant’s exam. If the ALJ threw out the non-examining
consultant opinions because they did not have the later records, he should have
likewise thrown out Dr. Troxel’s opinion. Instead, he cherry-picked the medical
evidence to support his RFC, when there was conflict among the doctors, particularly
with respect to overhead reaching.
9

The non-examining consultants both found a limitation in overhead reaching,
even before the later diagnosis of rotator cuff tears. The RFC would have been more
limiting had the ALJ given appropriate weight to all of the state consultant opinions.
At the very least, because of the abundant medical records detailing later diagnoses
and considerable treatment, the ALJ should have ordered a follow-up consultative
exam. The ALJ has a duty to develop the record fully, even when the claimant is
represented by counsel, and must order a consultative examination if it is necessary
to make an informed decision. Dozier v. Heckler, 754 F.2d 274, 276 (8th Cir. 1985).
Thorn’s examinations revealed deteriorating conditions after the state consultants
issued their reports. The ALJ should have further developed the record in light of
the new evidence, because the new evidence points to a more limited RFC than that
assigned by the ALJ.
IV.

Conclusion:
It is not the task of this Court to review the evidence and make an independent

decision. Neither is it to reverse the decision of the ALJ because there is evidence in
the record which contradicts his findings. The test is whether there is substantial
evidence in the record as a whole which supports the decision of the ALJ. Miller,
784 F.3d at 477. The Court has reviewed the entire record, including the briefs, the
ALJ's decision, and the transcript of the hearing. For the reasons stated above, the
10

Court concludes that the ALJ’s decision is not supported by substantial evidence.
The ALJ did not properly consider Thorn’s high blood pressure, did not give proper
weight to the physician’s opinions, and did not further develop the record where
necessary.
IT IS THEREFORE ORDERED that the final decision of the Commissioner
is REVERSED and the case is REMANDED for further review.
DATED this 6th day of June, 2017.

___________________________________
UNITED STATES MAGISTRATE JUDGE

11