Boatright v. Social Security Administration

Filing 10

RECOMMENDED DISPOSITION the ALJ's decision is not supported by substantial evidence; the ALJ did not properly credit the side effects from medication Boatright experienced; therefore it is recommended the Commissioner's decision be reversed and the case be remanded for further review 1 ; Objections due within 14 days of the date of this Recommendation. Signed by Magistrate Judge J. Thomas Ray on 8/13/18. (tjb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION
JOAN LYNN BOATRIGHT
V.

PLAINTIFF

NO. 4:17CV00801-SWW-JTR

NANCY A. BERRYHILL,
Deputy Commissioner for Operations,
performing the duties and functions not reserved
to the Commissioner of Social Security

DEFENDANT

RECOMMENDED DISPOSITION
The following Recommended Disposition (“Recommendation”) has been sent
to United States District Judge Susan Webber Wright. You may file written
objections to all or part of this Recommendation. If you do so, those objections must:
(1) specifically explain the factual and/or legal basis for your objections; and (2) be
received by the Clerk of this Court within fourteen (14) days of this
Recommendation. By not objecting, you may waive the right to appeal questions of
fact.
I. Introduction:
Plaintiff, Joan Lynn Boatright, applied for disability benefits on July 18, 2014,
alleging a disability onset date of May 3, 2013. (Tr. at 14). After conducting a
hearing, the Administrative Law Judge (“ALJ”) denied her application. (Tr. at 26).
The Appeals Council denied her request for review. (Tr. at 1). Thus, the ALJ=s
decision now stands as the final decision of the Commissioner.

For the reasons stated below, this Court should reverse the ALJ’s decision and
remand for further review.
II. The Commissioner=s Decision:
The ALJ found that Boatright had not engaged in substantial gainful activity
since the alleged onset date of May 3, 2013. (Tr. at 16). At Step Two, the ALJ found
that Boatright has the following severe impairments: lumbar degenerative disc
disease, bilateral knee degenerative joint disease, status-post arthroscopy of the right
knee, obesity, and adjustment disorder with depressed mood. Id.
After finding that Boatright’s impairments did not meet or equal a listed
impairment (Tr. at 17), the ALJ determined that Boatright had the residual functional
capacity (ARFC@) to perform the full range of light work, except that: (1) she could
only occasionally bend, kneel, crouch, stoop, crawl, and balance; (2) she could only
occasionally climb ramps or stairs; and (3) she would be limited to simple, routine,
repetitive tasks with simple, direct, and concrete supervision. (Tr. at 19).
The ALJ found that, based on Boatright’s RFC, Boatright was unable to
perform any past relevant work. (Tr. at 25). However, relying upon the testimony of
the Vocational Expert (“VE”) at Step Five, the ALJ found that, based on Boatright's
age, education, work experience and RFC, jobs existed in significant numbers in the
national economy that she could perform, including positions as a mail clerk and a
merchandise marker. (Tr. at 26). Thus, the ALJ found that Boatright was not

disabled. Id.
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 “substantial evidence” is that which a reasonable
mind might accept as adequate to support a conclusion, “substantial evidence on the
record as a whole” requires a court to engage in a more scrutinizing analysis:
“[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,
“merely because substantial evidence would have supported an
opposite decision.”
Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005) (citations omitted).
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.

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B.

Boatright=s Arguments on Appeal

Boatright contends that substantial evidence does not support the ALJ=s
decision to deny benefits. Her only argument is that the ALJ failed to properly
consider the side effects she experienced when taking medication. For the following
reasons, the Court agrees with Boatright.
Boatright, a 100% disabled veteran, sought treatment for foot, knee, and back
pain. (Tr. at 251-260, 286, 301, 315, 359-362, 422). Scott Darby, M.D., saw her
numerous times over the relevant time-period, and he prescribed strong pain
medication. Boatright took Prednisone, Hydrocodone, Oxycodone, Flexeril,
Percocet, and 800 mg Ibuprofen. (Tr. at 359-362, 377, 417, 419-422, 428). She was
taking as much as 90 pills of hydrocodone and 30 pills of oxycodone per month. (Tr.
at 417).
Boatright repeatedly reported side effects from medication. She said the
medications made her sleepy, confused, groggy, and forgetful. (Tr. at 46-49). She
sometimes forgot if she had taken medications. (Tr. at 49). She said she was only
awake 7 to 8 hours a day. (Tr. at 46). In March 2015, Dr. Darby cautioned Boatright
about driving while taking medication. (Tr. at 480). He said she required opioid
medications for pain and that she relied on family to take care of her. (Tr. at 584).
He said her condition limited her to 15 minutes of activity at a time. Id. Dr. Darby
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concluded that side effects would impact her ability to perform even a sedentary job,
noting that pain flare-ups precluded activity for 1-2 hours two or three times a day.
(Tr. at 585).
The ALJ must consider side effects from medication along with things like
ability to engage in activities of daily living. Polaski v. Heckler, 739 F.2d 1320, 1322
(8th Cir. 1984). Here, the ALJ made a glancing mention of side effects, only stating
that Boatright needed to nap several times a day. (Tr. at 20). He cited to a function
report Boatright filled out in 2014, in which she said she could prepare some simple
meals and do light dusting and laundry. (Tr. at 208). Earlier still, in 2013, Boatright
said she could do some yardwork and babysit her grandchildren. (Tr. at 325). These
statements are superseded by her testimony at the 2016 hearing, where she said that
her health problems prevent her from cooking, cleaning, running errands, or
spending time with her grandchildren. (Tr. at 41-42). She said her husband does
everything for her. Id. Her husband reported that she did little around the house and
slept a lot. (Tr. at 180-185). He also indicated she had side effects from pain
medications. (Tr. at 184). In an Eleventh Circuit case, where a claimant had similar
side effects and testified at her hearing that she could only engage in a few activities
of daily living, the court reversed, finding that the ALJ did not properly credit
subjective statements about pain and side effects. Davis v. Astrue, 287 Fed. Appx.,
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748, 757-762 (11th Cir. 2008). In this case, the record suggests that Boatright’s
condition was deteriorating and her activities were limited due to side effects.
Such limitations on activities would preclude light work. See Draper v.
Barnhart, 425 F.3d 1127, 1131 (8th Cir. 2005). In fact, when Boatright’s attorney
asked the VE if there were jobs available for a claimant who was off task for up to
20% of the day due to pain and side effects, the VE said no. (Tr. at 53). It is entirely
plausible that Boatright would be off task 20% of the time due to side effects, based
on Dr. Darby’s reports and her own testimony. The Eighth Circuit has held that an
ALJ meets his burden at Step Five by eliciting testimony by a VE in response to "a
properly phrased hypothetical question that captures the concrete consequences of a
claimant's deficiencies." Porch v. Chater, 115 F.3d 567, 572 (8th Cir. 1997). The
hypothetical posed by Boatright’s attorney, rather than that chosen by the ALJ, best
incorporated the side effects that Boatright experienced. In the Davis case from the
Eleventh Circuit, the court pointed out that the ALJ ignored the hypothetical that
was properly tailored to include side effects of medication. Davis, supra at 759-760.
The ALJ in this case erred by failing to consider the VE testimony that no jobs were
available if Boatright was off task 20% of the day.
V.

Conclusion:
For the reasons stated above, the Court finds that the ALJ’s decision is not
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supported by substantial evidence. The ALJ did not properly credit the side effects
from medication that Boatright experienced.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision be
REVERSED and the case be REMANDED for further review.
DATED this 13th day of August, 2018.

___________________________________
UNITED STATES MAGISTRATE JUDGE

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