Weathers v. Social Security Administration

Filing 25

RECOMMENDED DISPOSITION recommending that the decision of the Commissioner be reversed and remanded with instructions to develop the record as necessary and to fully consider all the evidence of record. Objections due within 14 days of this Recommendation. Signed by Magistrate Judge Patricia S. Harris on 10/30/2017. (ljb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
EZETTE WEATHERS

PLAINTIFF

v.

No. 5:16-CV-00341-DPM-PSH

NANCY A. BERRYHILL,
Acting Commissioner,
Social Security Administration

DEFENDANT

RECOMMENDED DISPOSITION
INSTRUCTIONS
The following Recommended Disposition (“Recommendation”) has been sent to
United States District Judge D.P. Marshall, Jr. 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 objection; 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.
REASONING FOR RECOMMENDED DISPOSITION
Ezette Weathers applied for social security disability benefits with an alleged
disability onset date of January 30, 2007. (R. at 75). After a hearing, the administrative
law judge (ALJ) denied her application. (R. at 36). The Appeals Council denied
Weathers’ request for review. (R. at 4). The ALJ’s decision now stands as the
Commissioner’s final decision, and Weathers has requested judicial review.
For the reasons stated below, the magistrate judge recommends reversing and
remanding the Commissioner’s decision.

I.

The Commissioner’s Decision
The ALJ found that Weathers had the severe impairments of mild disk protrusion

at C5–C6 with minimal hypertrophy at that level and some minimal hypertrophic
changes of the facet, with only some slight disk desiccation at L3–L4, and with only
minimal degenerative changes of the facet joint at that level. (R. at 15). The ALJ
specifically found that Weathers had no severe mental impairment. (R. at 16–22). The
ALJ found that Weathers had the residual functional capacity (RFC) to perform the full
range of medium work. (R. at 22). The ALJ then found that Weathers could perform her
past relevant work as a chicken packer/hand packer. (R. at 35). Therefore, the ALJ held
that Weathers was not disabled. (R. at 36).
II.

Summary of Medical Evidence
Weathers was seen at the Dallas County Medical Center on January 28, 2007

following a motor vehicle accident. (R. at 299). She was diagnosed with acute cervical
strain and abdominal contusion. (R. at 299). She had an x-ray that identified
straightening of the cervical spine and degenerative osteophytes at C5–C6. (R. at 302).
She was treated with Flexeril and Toradol and prescribed Flexeril and ibuprofen. (R. at
308). The next day, she saw her physician, Neema Suphan, M.D., who advised bed rest
and physical therapy three times per week for her neck and back. (R. at 315). On
February 1, 2007, Weathers presented for physical therapy where she was found to have
slow, guarded movements due to pain, but with lower extremity strength and range of
motion within functional limits. (R. at 316). Her cervical range of motion was decreased
approximately fifty percent, and she had reduced range of motion in the upper
extremities due to pain. (R. at 316). She continued in physical therapy and met all goals,

including restoring cervical range of motion to functional limits, on April 5, 2007. (R. at
318).
Weathers was referred to Reza Shahim, M.D. and complained of neck and back
pain radiating into her shoulders and hips on June 11, 2007. (R. at 336). Dr. Shahim
reviewed Weathers’ records and found mild cervical spondylosis at C5–C6. (R. at 336).
Dr. Shahim did not recommend surgery and referred Weathers for pain management.
(R. at 336). On July 13, 2007, Thomas Hart, M.D. reviewed an MRI of Weathers’ spine
that showed straightening of the cervical lordosis, mild disk protrusion at C5–C6, and
slight disk desiccation, minimal bulge, and minimal degenerative changes of the facet
joint at L3–L4. (R. at 340–41). Dr. Hart recommended diagnostic cervical facet
injections at C3–C4, C4–C5, C5–C6, and C6–C7 and suggested consideration of
radiofrequency. (R. at 341). Dr. Hart performed the injections on July 18, 2007. (R. at
348). After the procedure, Weathers claimed a pain score of 10/10 but appeared to not
be in severe distress. (R. at 348). Dr. Hart noted that Weathers seemed not to
understand the visual analog score and that it was difficult to get a score or subjective
pain rating. (R. at 348).
Weathers saw Amir Qureshi, M.D. on September 6, 2007, complaining that her
pain had increased after the facet injections. (R. at 333). Dr. Qureshi noted decreased
range of motion at all points in Weathers’ neck and tenderness over her cervical
paraspinous muscles, bilateral lumbar paraspinous muscles, mid-spinous processes
area, and bilateral SI joints. (R. at 334). Dr. Qureshi gave Weathers trigger point
injections and a cervical epidural injection. (R. at 334–35). During a follow-up visit on
October 4, 2007, Weathers reported that she had experienced relief for a few days but
that her pain was currently 9 out of 10. (R. at 331). Dr. Qureshi’s diagnosis was

unchanged, and he repeated the epidural injections and prescribed Ultram. (R. at 332).
She received additional injections on November 5, 2007. (R. at 342). She continued to
complain of pain and received additional epidural injections on February 28, 2008. (R.
at 329). On April 24, 2008, Weathers stated that her pain level was 2 out of 10, and Dr.
Qureshi released her to go back to work. (R. at 327–28).
Weathers presented to Charles Jones, M.D. on June 6, 2011 complaining of
bilateral shoulder, bilateral neck, and back pain. (R. at 351). Dr. Jones assessed lumbago
and cervical neck pain and prescribed Ultram and Flexeril. (R. at 352). She saw Dr.
Jones again on December 7, 2011 with the additional complaint of ear pain when eating.
(R. at 378). On December 27, 2011, Dr. Jones assessed myalgia and myositis in addition
to the neck and back pain. (R. at 376–77). Dr. Jones continued to treat Weathers with
pain medication, and she presented with TMJ pain on January 27, 2012. (R. at 375–76).
Dr. Jones referred her to Stephen Shorts, M.D. in February 2012, and Dr. Shorts
recommended that Weathers see a dentist to see if the TMJ pain could be reduced. (R. at
385).
Weathers saw Efrain Segura, M.D. for a consultative examination on December 9,
2011. (R. at 357–62). Dr. Segura diagnosed neck, shoulder, and lower back pain and
opined that Weathers had mild limitations in her ability to walk, lift, and carry and that
she needed more investigation concerning her back, shoulders, and lower back pain. (R.
at 360).
State Agency physician Stephen Whaley, M.D. reviewed Weathers’ medical
records and opined that she could perform light work. (R. at 366–73).
Following the administrative hearing, Weathers presented for additional
consultative examinations. Bernard Crowell, M.D. examined Weathers on May 21, 2013,

finding reduced lumbar flexion, extension, and lateral flexion and reduced shoulder
abduction, forward elevation, internal rotation, and external rotation. (R. at 430). Dr.
Crowell opined that Weathers could occasionally lift up to twenty pounds; sit for eight
hours in an eight-hour workday; frequently grasp, perform fine manipulation, handle,
feel, and operate hand and foot controls; occasionally reach, climb, balance, stoop, and
crouch; and never kneel or crawl. (R. at 431). His impression was chronic pain
syndrome of the lower back with bilateral shoulder pain that could be rotator cuff
tendinitis and tendinopathy. (R. at 433).
Weathers underwent a mental diagnostic evaluation and intellectual assessment
with Charles Spellman, Ph.D. on May 22, 2013. (R. at 420–25, 434–37). Dr. Spellman
found that Weathers had a full scale IQ of 50, but he did not consider the test results
reliable, based on Weathers’ communication and ability to hold a job for nine years.
However, Dr. Spellman believed that Weathers might have borderline intelligence. (R. at
422). He diagnosed adjustment disorder with mixed emotional features, dependent
personality disorder, and rule-in borderline intelligence. (R. at 423). In a medical source
statement, Dr. Spellman indicated that Weathers had mild limitations in her ability to
understand and remember simple instructions and carry out simple instructions;
moderate limitations in the ability to make judgments on simple work-related decisions,
understand and remember complex instructions, and carry out complex instructions;
and marked limitations in the ability to make judgments on complex work-related
decisions. (R. at 435). He also indicated that Weathers had mild limitations in her
ability to interact appropriately with supervisors and coworkers and her ability to
respond appropriately to usual work situations and to changes in a routine work setting.
(R. at 436).

III.

Discussion
The Court reviews to determine whether substantial evidence on the record as a

whole exists to support the ALJ’s denial of benefits. Long v. Chater, 108 F.3d 185, 187
(8th Cir. 1997). “Substantial evidence” exists where a reasonable mind would find the
evidence adequate to support the ALJ’s decision. Slusser v. Astrue, 557 F.3d 923, 925
(8th Cir. 2009). The Court will not reverse merely because substantial evidence also
supports a contrary conclusion. Long, 108 F.3d at 187.
Weathers argues that the ALJ failed to properly assess her mental impairments,
failed to perform a proper credibility analysis, and erred in assessing her RFC. As the
undersigned finds that the ALJ failed to properly assess Weathers’ mental impairments,
it is not necessary to reach her other arguments.
Weathers contends that the ALJ failed to consider educational records that show
she performed poorly in school, required special education classes, and ultimately failed
to earn a high school diploma. (R. at 279–84). Indeed, the ALJ’s opinion makes no
mention of the educational records. In discussing Weathers’ alleged mental
impairments, the ALJ considered Dr. Spellman’s reports and Weathers’ testimony. (R.
at 16–22). The ALJ noted that Weathers understood questions and communicated
appropriately at the hearing. (R. at 19). The ALJ held that Weathers had no severe
mental impairments. (R. at 21). The ALJ stated that significant evidentiary weight was
given to Dr. Spellman’s reports, yet adopted none of Dr. Spellman’s diagnoses or
limitations. (R. at 22, 420–25, 434–37).
The ALJ noted that Weathers has not used psychotropic medications nor has she
sought mental health treatment. (R. at 16). The Commissioner notes that a lack of
treatment can be considered as evidence that a claimant does not have a mental

impairment. Kirby v. Astrue, 500 F.3d 705, 709 (8th Cir. 2007). While this is a correct
statement of the law, Weathers claims mental impairment based on learning disabilities.
A learning disability or borderline intelligence is not a condition responsive to
medication but a permanent condition that requires lifelong support. Inclusion Europe
& Mental Health Europe, Mental Illness and Intellectual Disability,
http://digitalcommons.ilr.cornell.edu/gladnetcollect/276. The educational records also
show that Weathers received special consideration and support during her time in
school, undercutting the ALJ’s assertion that no evidence shows that Weathers has
received treatment. (R. at 279–84).
Furthermore, the ALJ recounted Weathers’ duties as filling bags with chicken and
packing the filled bags into boxes. (R. at 23). However, Weathers testified that she was
unable to keep pace with that job and was subsequently shifted to assembling boxes,
where she was again told that her pace as too slow. (R. at 52–53). The ALJ made no
mention of this testimony in his decision.
The ALJ’s primary reason for rejecting Weathers’ claims of mental impairment
seems to be her demeanor at the hearing, where the ALJ observed that “she appeared to
have a very good command of vocabulary” and a “seemingly good understanding of
medical terms and previous treatments received” that “[o]ne would not readily expect”
from a mentally impaired individual. (R. at 24). The Eighth Circuit has decried the use
of “sit and squirm” tests in evaluating a claimant’s complaints of pain, as “[a]ny system
of administrative adjudication which would attach determinative weight to appearances
would be fraught with the potential for manipulation because outward manifestations of
pain can easily be contrived by a calculating claimant, or suppressed by a hardy
claimant.” Cline v. Sullivan, 939 F.2d 560, 568 (8th Cir. 1991). Similar reasoning should

apply to mental impairments, which are often not evident from appearances. Here, the
ALJ seems to have based his findings on his own opinions rather than medical evidence,
which is not permissible under the law. Pate-Fires v. Astrue, 564 F.3d 935, 946–47 (8th
Cir. 2009).
IV.

Recommended Disposition
The ALJ failed to consider the evidence of Weathers’ mental impairments and

improperly substituted his own opinion for medical findings. The ALJ’s decision is
therefore not supported by substantial evidence on the record as a whole. For these
reasons, the undersigned magistrate judge recommends REVERSING and
REMANDING the decision of the Commissioner with instructions to develop the record
as necessary and to fully consider all the evidence of record.
It is so ordered this 30th day of October, 2017.

________________________________
PATRICIA S. HARRIS
UNITED STATES MAGISTRATE JUDGE