Flemon v. Social Security Administration

Filing 16

MEMORANDUM OPINION AND ORDER reversing and remanding this case as a "sentence four" remand. Judgment will be entered for Flemon. Signed by Magistrate Judge Patricia S. Harris on 7/24/2017. (jak)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION

BARRY WAYNE FLEMON, JR.
v.

PLAINTIFF
NO. 3:16-cv-00342 PSH

NANCY A. BERRYHILL, Acting Commissioner
of the Social Security Administration

DEFENDANT

MEMORANDUM OPINION AND ORDER
Plaintiff Barry Wayne Flemon, Jr., (“Flemon”) began this case by filing a
complaint pursuant to 42 U.S.C. 405(g). In the pleading, he challenged the final decision
of the Acting Commissioner of the Social Security Administration (“Commissioner”), a
decision based upon the findings of an Administrative Law Judge (“ALJ”).
Flemon maintains that the ALJ’s findings are not supported by substantial
evidence on the record as a whole.1 Flemon specifically maintains that his residual
functional capacity was erroneously assessed and offers two reasons why. First, the ALJ
erred when he rejected the opinions of Dr. Stephen Woodruff, M.D., (“Woodruff”).
Second, the ALJ’s credibility analysis was inadequate because he did not engage in a
detailed credibility analysis, gave no consideration to Flemon’s work history, and
ignored medical evidence that was consistent with Flemon’s subjective complaints.

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).
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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). In making
the assessment, the ALJ is required to consider the medical opinions in the record. See
Wagner v. Astrue, 499 F.3d 842 (8th Cir. 2007). A treating physician’s medical opinions
are given controlling weight if they are well-supported by medically acceptable clinical
and laboratory diagnostic techniques and are not inconsistent with the other substantial
evidence. See Choate v. Barnhart, 457 F.3d 865 (8th Cir. 2006). The ALJ may discount a
treating physician’s medical opinions if other medical assessments are supported by
better or more thorough medical evidence or where the treating physician renders
inconsistent opinions that undermine the credibility of his opinions. See Id.
The ALJ must evaluate the claimant’s subjective complaints as a part of assessing
his residual functional capacity. See Pearsall v. Massanari, 274 F.3d 1211 (8th Cir. 2001).
The ALJ does so by considering all of the evidence, including the following:
... [the] objective medical evidence, the claimant’s work history, and
evidence relating to the factors set forth in Polaski v. Heckler, 739 F.3d
1320, 1322 (8th Cir. 1984): (i) the claimant’s daily activities; (ii) the
duration, frequency, and intensity of the claimant’s pain; (iii)
precipitating and aggravating factors; (iv) the dosage, effectiveness, and
side effects of medication; and (v) the claimant’s functional restrictions.
... An ALJ need not expressly cite the Polaski factors when ... [he]
conducts an analysis pursuant to 20 C.F.R. 416.929 because the regulation
“largely mirror[s] the Polaski factors.” Schultz v. Astrue, 479 F.3d 979,
983 (8th Cir. 2007); see 20 C.F.R. 416.929(c)(3)(i)-(iv), (vii) (2011) ...
See Vance v. Berryhill, 2017 WL 2743089, 4 (8th Cir. June 27, 2017).
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Flemon alleged in his application for disability insurance benefits that he became
disabled beginning on September 12, 2014. He alleged that he became disabled as a
result of impairments that include cervical disc disease, bilateral shoulder impingement
syndrome, rotator cuff tear, osteoarthritis, rupture of the left bicep tendons, and right
shoulder rotator cuff tendonitis. He ably summarized the evidence in the record, and
the Commissioner did not place the summary in dispute. The Court accepts the summary
as a fair summation of the evidence. The summary will not be reproduced, save to note
matters germane to the issues raised in the parties’ briefs.
On September 5, 2013, or one year before the alleged onset date, an MRI of
Flemon’s cervical spine was performed. The results revealed the following: “multilevel
degenerative changes which are worst on the left at the C4-C5 level where there is
severe left foraminal narrowing.” See Transcript at 555.
On October 9, 2013, Flemon was seen for complaints of neck pain by Dr. Robert
Abraham, M.D., (“Abraham”). See Transcript at 552-554. Flemon reported that the pain
began in his neck, radiated to his left shoulder, went down the posterior aspect of his
left arm, and stopped at his elbow. He reported taking six Percocets a day and muscle
relaxers to help ease the pain. His history was recorded, and it reflects the following:
“... Flemon is a 45 year old electrician that returns to the clinic today after undergoing
an MRI of his cervical spine. He has previously had an ACDF [i.e., anterior cervical
discectomy and fusion] of C3-4, C5-6 in [December] of 2011. He also had a TDR [i.e.,
total disc replacement] in C6-7 done by Dr. Tonymon.” See Transcript at 552.
Abraham’s diagnoses included cervical radiculopathy. Abraham continued Flemon on

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medication, counseled against strenuous activity, and referred him for pain
management.
Flemon thereafter saw Dr. Mark Wendell, M.D., (“Wendell”) and Melanie New,
APRN, (“New”) for pain management on what appears to have been twenty-five
occasions. See Transcript at 370-377 (01/13/2014), 378-379 (01/28/2014), 361-365
(02/10/2014), 517-521 (03/06/2014), 366-367 (03/11/2014), 509-513 (03/24/2014),
347-351 (05/05/2014), 352-353 (05/27/2014), 454-458 (06/25/2014), 421-422
(08/18/2014), 405-406 (08/26/2014), 428-429 (09/10/2014), 591-593 (12/01/2014),
626-627

(12/09/2014),

655

(12/20/2014),

705-706

(05/13/2015),

634-635

(06/02/2015), 711-712 (06/08/2015), 723-725 (08/06/2015), 636-637 (08/10/2015),
727-728 (08/24/2015), 728-731 (09/09/2015), 757-758 (09/28/2015), 747-750
(10/12/2015), 753-754 (12/29/2015). At the initial presentation, Wendell’s diagnoses
included cervical disc degeneration. Wendell continued Flemon on medication and
began treating him with steroid injections. Flemon initially reported excellent results
from the injections but later reported that they were proving to be less beneficial. An
MRI of Flemon’s cervical spine was performed at New’s request on September 3, 2015.
See Transcript at 639-640. The results revealed, in part, the following: “[d]egenerative
disc changes at C4-5 caused mild central canal stenosis. Left uncovertebral osteophyte
causes moderate left neuroforaminal narrowing.”
Flemon returned to Abraham on July 30, 2014. See Transcript at 443-446. Flemon
reported tremendous benefit from the steroid injections, but the pain in his neck and
left arm returned once the effect of the medication subsided. Flemon reported that his
pain was exacerbated by activity. He reported that he was considering applying for

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disability. Abraham again diagnosed, inter alia, cervical radiculopathy, continued
Flemon on medication, and continued to recommend pain management.
Flemon saw Woodruff between 2013 and 2015 and appears to have seen him on
approximately eight occasions. See Transcript at 382-385 (11/12/2013), 522-527
(03/05/2014), 447-451 (07/22/2014), 443-446 (07/30/2014), 593-594 (12/03/2014),
655-657 (01/02/2015), 694-696 (04/01/2015), 742-747 (10/01/2015). At the initial
presentation, Flemon complained of a constant burning in his neck and radiculopathy
in his left arm. Woodruff diagnosed cervical radiculopathy and a “post-surgical state,”
see Transcript at 385, and prescribed a fentanyl transdermal patch. At subsequent
presentations, Flemon continued to complain of pain in his neck and left arm. He also
complained of pain in his right shoulder, chronic bursitis in his hips, and complications
associated with low iron. Woodruff continued to diagnose cervical radiculopathy and
additionally diagnosed conditions that include cervical disc degeneration, a bulging
cervical disc, osteoarthritis, trochanteric bursitis, and anemia. In the July 22, 2014,
progress note, Woodruff opined that he did not believe Flemon was “capable of working
any ... occupation with the cervical spine condition.” See Transcript at 447. In the
December 3, 2014, progress note, Woodruff opined that Flemon was “[u]nable to work.”
See Transcript at 594.
On December 3, 2014, Woodruff prepared a medical source statement-physical
on behalf of Flemon. See Transcript at 564-565. In the statement, Woodruff represented
that Flemon could lift and/or carry less than ten pounds frequently and occasionally
but could stand and/or walk and sit for a total of eight hours. Woodruff represented
that Flemon had a limited ability to push and pull because of cervical radiculopathy

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with marked tricep weakness and could only occasionally perform such tasks as
reaching, handling, and fingering.
On August 21, 2015, Woodruff authored a “To Whom It May Concern” letter on
behalf of Flemon. In the letter, Woodruff represented the following:
Barry Flemon has been a patient at NEA Baptist clinic over a number
of years. His primary problem is [c]ervical disc disease. He has had
previous cervical [s]urgery with a fusion but continues to have [s]ignificant
pain in the cervical region. With radiation to the shoulders and the arms.
This has greatly restricted his work as an electrician and in fact he now
cannot work in any capacity. He has chronic severe pain requiring narcotic
use and he has [o]ngoing arm weakness as a result of this process. This
has been a problem in spite of previous surgery. In my opinion he is totally
disabled with this process. ...
See Transcript at 629.2
Flemon underwent other testing and sought other treatment during the relevant
period. A December 10, 2013, cervical myelogram revealed spinal stenosis with mild
anterior thecal sac compression at C3-C4 and C4-C5. See Transcript at 389. A CT scan
of his cervical spine performed the same day revealed “multilevel abnormalities with

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As a part of Flemon’s request for review, he submitted a second medical source statement‐physical from 
Woodruff. See Transcript at 20‐21. In the March 1, 2016, statement, Woodruff represented, in part, that Flemon 
could stand and/or walk and sit for less than two hours in an eight hour workday and was unable to reach or handle. 
Woodruff opined that Flemon would need frequent, longer than usual breaks and would require a sit/stand option. 

Flemon also submitted a medical source statement‐mental from Woodruff. See Transcript at 23‐24. In the 
March 1, 2016, statement, Woodruff represented that Flemon had several extreme limitations of function. Woodruff 
opined that Flemon was “not able to hold [a] full time job in his occupation at all.” See Transcript at 24. 

Flemon also submitted a second “To Whom It May Concern” letter from Woodruff. In the May 3, 2016, 
letter, Woodruff recounted Flemon’s impairments and opined that he was “unable to [w]ork at any occupation in 
his present condition” and was unlikely to “perform full‐time work of any sort in the future.” See Transcript at 9. 

The  Appeal  Council  acknowledged  receipt  of  the  medical  source  statements  and  the  “To  Whom  It  May 
Concern” letter but gave them no consideration. The Appeals Council did so because the submissions were “about 
a  later  time”  and  did  not  “affect  the  decision  about  whether  [Flemon]  were  disabled  beginning  on  or  before 
February, 19, 2016.” See Transcript at 2. 

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disc osteophyte on the left at C4-C5 causing severe left foraminal narrowing.” See
Transcript at 386.
Flemon sought medical attention for his arm and shoulder pain on October 31,
2014. See Transcript at 586-591. An examination showed some positive impingement
and mild weakness, but he was observed to have a full range of motion. A physician’s
assistant also noted the following: “[Flemon] states that [at] his next visit he may be
ready to discuss left shoulder arthroscopy for rotator cuff repair as he may be done
hunting.” See Transcript at 590.
Flemon saw Dr. Jason Brandt, M.D., (“Brandt”) on December 15, 2014. See
Transcript at 612-616. Brandt diagnosed, in part, a right rotator cuff tear and left
shoulder impingement syndrome. Brandt recommended that Flemon undergo a right
shoulder arthroscopic rotator cuff repair.
Brandt performed the right shoulder arthroscopic rotator cuff repair on January
15, 2015. See Transcript at 608-610. Flemon healed well following the surgery,
particularly after he received a period of physical therapy. See Transcript at 657-661,
662-666, 667-680, 684-694. By February 22, 2015, he was observed to have a full range
of motion in his right shoulder. See Transcript at 684.
On April 23, 2015, Brandt performed arthroscopic surgery on Flemon’s left
shoulder. See Transcript at 631-634. Flemon healed well following the surgery, see
Transcript at 696-700, 706-710, and by July 24, 2015, he was observed to have a full
range of motion in his left shoulder. See Transcript at 713-717.
On September 3, 2015, another MRI of Flemon’s cervical spine was performed.
The results showed, in part, the following: “[d]egenerative disc changes at C4-5

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caus[ing] mild central canal stenosis” and “[l]eft uncovertebral osteophyte caus[ing]
moderate left neuroforaminal narrowing.” See Transcript at 555.
The record contains a history of Smith’s FICA earnings for the years 1985 through
2014. See Transcript at 200. The summary reflects that he had substantial earnings
during that period, particularly between the years 1996 and 2014.
Flemon completed a series of documents in connection with his application for
disability insurance benefits. See Transcript at 236-243, 244-245, 246-253, 284, 286. In
the documents, he represented that he worked as an electrician from October of 1993
through September of 2014. He experiences pain in his neck and left arm. He can
stand/walk and sit for approximately one hour before he begins to experience pain,
and the pain is exacerbated by physical activity. Flemon can attend to his own personal
care, prepare his own meals, and perform some house and yard work. He can shop and
does so once a week. His hobbies include watching television, reading, and hunting,
although he no longer hunts. His social activities include attending church once a week.
Flemon testified during the administrative hearing. See Transcript at 98-110. He
was forty-eight years old at the time. He completed high school and a five year
apprenticeship. He lives with his wife and helps out around the house. He has difficulty
performing activities involving the use of his shoulders and arms and was told to not lift
more than ten pounds at one time. He takes Oxycodone and Risperdal for his pain.
Although Flemon can reach over his head, he begins to experience pain when he lifts
weight over his head or reaches over his head repeatedly. He worked as a journeyman
electrician for approximately twenty years and last worked in September of 2014. He
stopped working because of the pain in his neck. He does not believe he can work a job

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requiring him to stand/walk or sit for six hours during a workday or a job requiring him
to use his arms and hands repeatedly.
The ALJ found at step two that Flemon has severe impairments in the form of
“cervical disc disease; bilateral shoulder impingement syndrome, rotator cuff tear,
osteoarthritis; rupture of the left biceps tendon; and right shoulder rotator cuff
tendonitis.” See Transcript at 83. The ALJ assessed Flemon’s residual functional
capacity and found that he can perform sedentary work “except he can perform
occasional overhead reaching bilaterally; occasional handling with the non-dominant
upper extremity; and occasional stooping, crouching, crawling, and kneeling.” See
Transcript at 84. In making the foregoing findings, the ALJ noted Woodruff’s December
3, 2014, medical source statement-physical and his August 21, 2015, “To Whom It May
Concern” letter and accorded the opinions contained in those documents the following
weight:
... While the undersigned notes an opinion on whether an individual
is disabled goes to an issue reserved to the Commissioner and therefore
cannot be given special significance, such opinion should still be
considered in the assessment of the claimant’s residual functional
capacity ... The undersigned affords the treating physician’s opinion
partial weight as it is supported by the claimant’s diagnosis of cervical
disc disease, which results in decreased range of motion and requires
ongoing pain management. ... However, the physician’s opinion is
inconsistent with the claimant’s report that he benefits from pain
medication, including steroid injections, as well as refraining from
reaching overhead. ...
See Transcript at 88.
Flemon first maintains that the ALJ erred when he rejected Woodruff’s opinions.
It is Flemon’s position that the ALJ’s reasons for discounting the opinions, i.e., they

9 

were inconsistent with Flemon’s testimony, are specious. Flemon maintains instead
that the opinions are consistent with the record as a whole.
“In deciding whether a claimant is disabled, the ALJ considers medical opinions
along with ‘the rest of the relevant evidence’ in the record.” See Wagner v. Astrue,
499 F.3d at 848 [quoting 20 C.F.R. 404.1527(b)]. “[W]hether the ALJ grants a treating
physician’s opinion[s] substantial or little weight, the regulations ... provide that the
ALJ must ‘always give good reasons’ for the particular weight given to a treating
physician’s evaluation.” See Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000) [quoting
20 C.F.R. 404. 1527(d)(2)].
Clearly, Woodruff was a treating physician. His opinions regarding Flemon’s
physical limitations were therefore entitled to great weight, assuming of course that
they were well-supported by medically acceptable clinical and laboratory diagnostic
techniques and were not inconsistent with the other substantial evidence. The ALJ did
not discount Woodruff’s opinions because they were not well-supported by medically
acceptable clinical and laboratory diagnostic techniques. In fact, the ALJ specifically
found that Woodruff’s opinions were supported by the medical evidence, specifically,
by evidence of Flemon’s cervical disc disease and the work-related limitations it causes.
The ALJ instead discounted Woodruff’s opinions because they were inconsistent with
the other substantial evidence. What other substantial evidence did the ALJ rely upon
in discounting the opinions? The ALJ relied upon Flemon’s self-reports that he benefits
from pain medication, including steroid injections, and by refraining from reaching
overhead. Although the ALJ could certainly consider Flemon’s self-reports, the Court is
not persuaded that the self-reports, standing alone, are adequate other substantial

10 

evidence to undermine Woodruff’s opinions. In that regard, the Court adopts the
following representations made by Flemon in his brief:
... while Flemon may well benefit from treatment, this does not serve to
discredit ... Woodruff’s opinion about [Flemon’s] ability to work; to the
contrary, as careful consideration of ... Woodruff’s opinion would have
shown, Flemon’s medical records indicate that his pain increased when he
returned to work, that the relief he received from the injections was only
partial and that he thought they were no longer helping him, and that he
believed his neck pain was worsening.
See Docket Entry 10 at CM/ECF 22.
The Commissioner offers several additional reasons why the ALJ could have
discounted Woodruff’s opinions, e.g., Flemon continued to work as an electrician until
September of 2014 and “arthroscopic surgeries were successful and medication
controlled his pain,” see Docket Entry 15 at CM/ECF 15. The task of assigning weight to
medical opinions, and the task of offering reasons for discounting those opinions, is for
the ALJ at the administrative level, not for the Commissioner at the judicial level. It
may be that Woodruff’s opinions are eventually discounted, but the ALJ must offer good
reasons for doing so and the reasons must be supported by substantial evidence on the
record as a whole. A remand is therefore warranted so that the ALJ can re-evaluate
Woodruff’s opinions.
Flemon offers a second reason why the ALJ findings are not supported by
substantial evidence on the record as a whole. Flemon maintains that the ALJ’s
credibility analysis was inadequate because he did not engage in a detailed credibility
analysis, gave no consideration to Flemon’s work history, and ignored medical evidence
that was consistent with Flemon’s subjective complaints. The Court will not devote
much attention to Flemon’s assertion, save to note that the ALJ’s credibility analysis
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was minimal. Upon remand, the ALJ shall re-evaluate Flemon’s credibility, giving
specific consideration to such factors as his exceptional work history.
Substantial evidence on the record as a whole does not support the ALJ’s
assessment of Flemon’s residual functional capacity. A remand is necessary. Upon
remand, the ALJ shall re-evaluate Woodruff’s opinions and Flemon’s credibility.
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 Flemon.
IT IS SO ORDERED this 24th day of July, 2017.

________________________________________
UNITED STATES MAGISTRATE JUDGE

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