Ash v. Social Security Administration

Filing 12

MEMORANDUM OPINION AND ORDER reversing the Commissioner's decision and remanding this case. 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 Ash. Signed by Magistrate Judge Patricia S. Harris on 7/11/2017. (ljb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
KAREN DENISE ASH

PLAINTIFF

v.

NO. 3:17-cv-00016 PSH

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

DEFENDANT

MEMORANDUM OPINION AND ORDER
Plaintiff Karen Denise Ash (“Ash”) began this case 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”).
Ash maintains that the ALJ’s findings are not supported by substantial evidence
on the record as a whole.1 It is Ash’s contention that her residual functional capacity
was not properly assessed, and she offers two reasons why. She first maintains that the
ALJ failed to give proper weight to the opinions of Dr. Roger Cagle, M.D., (“Cagle”),
Ash’s treating physician. Second, Ash maintains that the ALJ failed to give proper
weight to the opinions contained in a mental diagnostic evaluation and intellectual
assessment performed by Dr. Dennis Vowell, Psy.D., (“Vowell”). Because it is unclear
why the ALJ weighed the opinions as he did, the Court finds that a remand is warranted.

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).
1

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.
Ash alleged in her applications for disability insurance benefits and supplemental
security income payments that she became disabled beginning on June 26, 2010,
although she later amended her onset date to June 6, 2012. She alleged that she
became disabled as a result of impairments that included chronic back pain; migraine
headaches; osteoarthritis in her hands, feet, and other joints; depression; and an
intellectual disability. She ably summarized the evidence in the record, see Document
10 at CM/ECF 2-14, and the Commissioner did not challenge the summary or otherwise
place it in dispute. The Court accepts the summary as a fair summation of the evidence.
The summary will not be reproduced, save to note several matters germane to the
issues raised in the parties’ briefs.

2 

On November 18, 2010, Ash was seen by Vowell for a mental diagnostic
evaluation and intellectual assessment in connection with a prior claim for benefits.
See Transcript at 504-510. Ash described her overall mood as depressed. She reported
being sad most days and described feelings of hopelessness and helplessness. She
additionally reported “difficulty with reading comprehension.” See Transcript at 504.
She reported being previously diagnosed with a learning disability and having taken
remedial classes in school. She also reported a history of chronic back pain and chronic
headaches.
Vowell noted that Ash had no history of mental health treatment. Ash had never
been prescribed medication for her mental health issues, and she had never been
hospitalized for any such issues. She identified “financial problems as an obstacle to
treatment.” See Transcript at 505.
Vowell also recorded Ash’s personal and employment history. Ash reported that
she obtained a high school diploma but was enrolled in resource classes beginning in
elementary school for help with math and reading. She last worked in June of 2010 at
a Family Dollar store where she served as an assistant manager. She quit the job
because she was not allowed time off to visit with her daughter. Ash reported no
difficulty interacting appropriately with her peers and supervisors.
Vowell administered Wechsler Adult Intelligence Scale-Fourth Edition (“WAISIV”) testing, and Ash’s scores included a full scale IQ score of fifty-seven. The score
placed her within the range of one mildly mentally retarded. Vowell believed Ash to
have put forth her best effort and believed the score to be a valid assessment of her
intellectual functioning.

3 

Vowell diagnosed a dysthymic disorder and mild mental retardation. With
respect to the effects of Ash’s mental impairments on her adaptive functioning, Vowell
opined the following:
A. How do mental impairments interfere with this person’s day to day
[a]daptive functioning? ...
Claimant is capable of driving unfamiliar routes but currently does not
have a vehicle. She is capable of shopping independently and manages her
own finances. She is able to complete basic household chores and basic
ADL’s [i.e., activities of daily living].
B. Capacity to communicate and interact in a socially adequate manner?
...
Claimant appeared capable of adequate and socially appropriate
communication and interaction in today’s session.
C. Capacity to cope with the typical mental/cognitive demands of basic
work-like tasks?
The [c]laimant appeared to sustain a reasonable degree of cognitive
efficiently and was able to track and respond to various kinds of questions
and tasks without remarkable slowing or distractibility.
D. Ability to attend and sustain concentration on basic tasks?
As noted in the findings of the mental status exam, the claimant displayed
mild to moderate difficulty responding adequately to basic assessment of
attention and concentration capacity.
E. Capacity to sustain persistence in completing tasks?
Persistence appeared adequate throughout the session.
F. Capacity to complete work-like tasks within an acceptable time frame?
The claimant did not display remarkable psychomotor slowing. In terms of
mental status type tasks, capacity to perform within a basically
acceptable time frame was demonstrated.
See Transcript at 508.
4 

On January 15, 2014, Ash began seeing Cagle for complaints that included low
back pain and depression. See Transcript at 393-397. She reported that she had not
seen a physician in years and was taking no medication. A physical examination revealed
nothing remarkable. Cagle diagnosed a depressive disorder, anxiety, insomnia, and
irritable bowel syndrome. He prescribed medication for her impairments.
Ash thereafter saw Cagle on what appears to have been twenty-four occasions.
See Transcript at 398-400 (02/15/2014); 401-402 (04/09/2014); 403-404 (05/09/2014);
405-406 (06/12/2014); 407-409 (09/05/2014); 410-412 (10/06/2014); 413-415
(11/12/2014); 416-418 (12/15/2014); 419-421, 433-435 (01/15/2015); 436-438
(02/13/2015); 439-441 (03/13/2015); 442-444 (04/14/2015); 486-488 (05/12/2015);
483-485 (05/27/2015); 480-482 (06/16/2015); 500-502 (07/16/2015); 497-499
(08/17/2015); 494-496 (09/18/2015); 490-493 (10/19/2015); 536-538 (11/13/2015); 2022 (05/16/2016); 17-19 (06/16/2016); 14-16 (07/15/2016); 11-13 (08/16/2016). The
progress notes reflect that he continued her on medication for her impairments and
treated her for additional impairments that included headaches, chest pain,
lumbago/low back pain, osteoarthritis in her hands, and pain in her knee.
On January 18, 2016, Cagle signed a medical source statement-physical on behalf
of Ash. See Transcript at 551-552. He opined, inter alia, that she could lift and carry
ten pounds occasionally and less than ten pounds frequently, could stand and walk for
about four hours during an eight hour workday but could not stand and walk for more
than thirty minutes at one time, and could sit for about six hours during an eight hour
workday but could not sit for more than two hours at one time. He opined that she
required frequent breaks and a sit/stand option.

5 

On January 18, 2016, Cagle also signed a medical source statement-mental on
behalf of Ash. See Transcript at 554-555. He opined that she had a number of marked
limitations, e.g., in her ability to understand and remember detailed instructions, in
her ability to carry out detailed instructions, in her ability to sustain an ordinary routine
without special supervision, and in her ability to complete a normal work-day and work
week without interruptions from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods. Cagle also
opined that Ash had a number of moderate limitations.2 He opined that her impairments
and/or treatment would cause her to be absent from work more than three days each
month.
On November 1, 2016, Cagle signed a “To Whom It May Concern” letter on behalf
of Ash. In the letter, he represented that “... [Ash] complains of increasing back pain
that radiates down in her hips. [She] has multiple health issues and she is not physically
or mentally able to work.” See Transcript at 9.
On May 13, 2015, Ash sought treatment at Families, Inc., a mental health facility.
See Transcript at 478. The progress note from the visit contains minimal findings. It
reflects that Ashley Withrow, a licensed clinical social worker, diagnosed Ash with a
recurrent, major depressive disorder and a generalized anxiety disorder.
During the course of treating Ash, Cagle referred Ash to Comprehensive Pain
Specialists (“CPS”) for treatment of her back pain. See Transcript at 544. Ash first
presented to CPS on October 28, 2015, at which time she reported the following:

2

Cagle represented that Ash had moderate limitations in every area encompassed by the medical source 
statement‐mental,  specifically,  understanding  and  memory,  sustaining  concentration  and  persistence,  social 
interaction, and adaptation. 

6 

... She [complains of] pain when normal activity doing chores and
can’t stand on her feet for very long. She had [an] x-ray about 2 months
ago at her [primary care physician’s] office. She has had pain for several
years that has progressively gotten worse. She has never had a MRI of her
lumbar. She did [physical therapy] for four weeks and didn’t get much
relief. She is currently taking Tramadol for pain and this helps somewhat
but doesn’t control it. ...
See Transcript at 544. Amy Deatherage (“Deatherage”), a nurse practitioner, observed
that Ash was experiencing headaches and had pain in her neck, shoulders, back, and
knees. Deatherage observed that the pain was exacerbated by lifting and carrying heavy
loads and by bending and stooping, and the pain interfered with Ash’s ability to perform
her daily chores. Deatherage did observe, though, that Ash had a normal range of
motion in her extremities. Deatherage diagnosed, inter alia, low back pain and
prescribed medication, ordered an MRI, and recommended lumbar facet injections.
On November 3, 2015, Ash underwent an MRI of her lumbar spine. See Transcript
at 529-534. The results of the MRI revealed mild disc desiccation at L3-L4, L4-L5, and
L5-S1 but no disc herniation or spinal stenosis.
On January 5, 2016, Ash was seen at CPS by Dr. Jeffrey Hall, M.D., (“Hall”). See
Transcript at 540-543. He administered lumbar facet injections at L1, L2, and L3 and
refilled her pain medication.
Ash was subsequently seen at CPS on what appears to have been five occasions.
See Transcript 557, 574-576 (01/19/2016); 559-560, 569-573 (02/04/2016); 586-590
(03/01/2016); 583-585 (04/12/2016); 580-582 (04/26/2016). The progress notes reflect
that she received several additional rounds of injections and was continued on pain
medication. She eventually reported some relief from her back pain as she reported an
improvement in her functioning and activities of daily living.
7 

Ash’s medical records were reviewed by state agency medical professionals. See
Transcript at 70-82, 83-95, 105, 109. With respect to her physical limitations, they
opined that she had no physical restrictions. With respect to her mental limitations,
they opined that she was capable of performing unskilled work.
Ash completed a series of documents in connection with her applications. See
Transcript at 226-233, 240-241, 242-250, 252. In the documents, she represented that
she can attend to her personal care, prepare her own meals, and perform some
household chores. She spends time with others and enjoys “skyping” with her daughter.
Ash has difficulty, though, finishing what she starts and has difficulty following spoken
instructions.
Maddie Akes (“Akes”), Ash’s mother, submitted a letter on behalf of Ash. See
Transcript at 303. In the letter, Akes represented that she assists Ash with most of her
daily activities. Akes represented that she does so because Ash has difficulty standing
for long periods of time. Akes additionally represented that Ash “stays most of her time
in bed.” See Transcript at 303.
Ash testified during the administrative hearing. See Transcript at 49-63. She was
born on February 3, 1973, and was forty-three years old at the time of the hearing. She
has a high school education. She lives by herself, can shop for groceries, and can drive
an automobile. She occasionally socializes with her neighbor. Ash previously worked at
a Family Dollar store but required help performing her job duties. She continues to
experience back and feet problems, and the problems prevent her walking or sitting for
more than thirty minutes at one time. The problems also prevent her from working a
job that would allow a sit/stand option.

8 

The ALJ found at step two that Ash has severe impairments in the form of
“lumbar degenerative disc disease, sacrococcygeal disorder, an affective disorder, and
anxiety.” See Transcript at 33. The ALJ assessed Ash’s residual functional capacity and
found the following:
... the claimant has the residual functional capacity to lift and
carry 20 pounds occasionally and 10 pounds frequently. The claimant can
stand or walk six hours in an eight-hour workday. The claimant can sit for
six hours in an eight-hour workday. The claimant can push or pull 20
pounds occasionally and 10 pounds frequently. The claimant can
understand, remember, and carry out simple work instructions. The
claimant can make judgments in simple work-related situations. The
claimant can respond appropriately with co-workers and supervisors, and
minor changes in the usual work routine. The claimant should not have to
interact with the general public.
See Transcript at 34. In making the foregoing findings, the ALJ noted that Cagle’s
opinions regarding Ash’s physical limitations were “consistent with the evidence of
record” but only gave the opinions “some weight.” See Transcript at 37. With respect
to Ash’s mental limitations, the ALJ gave “substantial weight” to the state agency
medical professionals’ opinions. See Transcript at 37. The ALJ noted that Cagle’s
opinions regarding Ash’s mental limitations were “consistent with the evidence of
record” but only gave the opinions “some weight.” See Transcript at 37. The ALJ recited
Vowell’s opinions regarding Ash’s mental limitations but does not appear to have given
the opinions any weight. The ALJ found at step four that Ash cannot return to her past
work but found at step five that there is other work she can perform.
Ash first maintains that the ALJ failed to give proper weight to Cagle’s opinions.
Ash so maintains, in part, because the ALJ found that although the opinions were
“consistent with the evidence of record,” the ALJ only gave them “some weight.”
9 

“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)].
It is undeniable that Cagle was a treating physician. His opinions regarding Ash’s
physical limitations were therefore entitled to considerable, if not controlling, weight
if they were well-supported by medically acceptable clinical and laboratory diagnostic
techniques and were not inconsistent with the other substantial evidence. The ALJ
found that Cagle’s opinions were “consistent with the evidence of record,” which
suggests that the opinions would be given considerable weight. The ALJ did not give
the opinions such weight. Instead, the ALJ only gave the opinions “some weight,” which
indicates that he discounted the opinions. The ALJ failed, though, to provide a reason
for discounting the opinions.
The Commissioner offers several reasons why the ALJ may have discounted
Cagle’s opinions regarding Ash’s physical limitations, e.g., the opinions were conclusory
and inconsistent with the evidence. The task of assigning weight to medical opinions,
and the task of offering reasons for discounting the opinions, is for the ALJ. Given the
confusion created by the ALJ’s conflicting findings regarding Ash’s physical limitations,
a remand is warranted so that the ALJ can explain his reasons for weighing the opinions
as he did and, if necessary, send Ash for a consultative physical examination.

10 

Ash also maintains that proper weight was not given to the opinions of her mental
limitations, specifically, that proper weight was not given to Cagle’s opinions in the
medical source statement-mental and to Vowell’s opinions in the mental diagnostic
evaluation and intellectual assessment. Ash’s contention is not particularly compelling
with respect to Vowell’s opinions because they were offered approximately nineteen
months before the amended onset date. The ALJ’s treatment of Cagle’s opinions,
though, is suspect because the ALJ failed to give a reason for discounting them. There
is evidence that Ash has mental impairments, and the limitations caused by the
impairments may not be fully accounted for in the assessment of her residual functional
capacity. Upon remand, the ALJ shall re-evaluate the opinions of Ash’s mental
limitations and, if necessary, send Ash for a consultative mental examination.
Substantial evidence on the record as a whole therefore does not support the
ALJ’s assessment of Ash’s residual functional capacity. A remand is necessary. Upon
remand, the ALJ shall explain his reasons for weighing the medical opinions as he did
and, if necessary, send Ash for a consultative physical and mental examination.
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 Ash.
IT IS SO ORDERED this 11th day of July, 2017.

UNITED STATES MAGISTRATE JUDGE
11