Gregory v. Social Security Administration Commissioner

Filing 9

MEMORANDUM OPINION Signed by Honorable James R. Marschewski on May 2, 2011. (sh)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
DANIEL T. GREGORY

PLAINTIFF

v.

Civil No.10-2070

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Daniel Gregory, brings this action under 42 U.S.C. § 405(g), seeking judicial
review of a decision of the Commissioner of Social Security Administration (Commissioner)
denying his claim for a period of disability, disability insurance benefits (“DIB”), and
supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act
(hereinafter “the Act”), 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). In this judicial review, the
court must determine whether there is substantial evidence in the administrative record to
support the Commissioner’s decision. See 42 U.S.C. § 405(g).
I.

Procedural Background:
The plaintiff filed his applications for DIB and SSI on November 28, 2006, alleging an

onset date of July 11, 2006, due to chronic obstructive pulmonary disease (“COPD”), the
residuals of a stroke and heart attack, hypertension, depression, headaches, and long-term
memory loss. Tr. 109-119, 128, 130, 137-138.
An administrative hearing was held on September 17, 2008. Tr. 16-52. Plaintiff was
present and represented by counsel. At this time, plaintiff was 46 years of age and possessed a
tenth grade education. Tr. 25-26, 117, 135. He had past relevant work (“PRW”) experience as
a poultry hanger, industrial cleaner, and restaurant cleaner. Tr. 65, 131.

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On November 7, 2008, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s COPD, hypertension, and depression did not meet or equal any Appendix 1
listing. Tr. 62. The ALJ determined that plaintiff maintained the residual functional capacity
(“RFC”) to perform unskilled medium level work where the interpersonal contact was incidental
to the work performed. Tr. 62-65. With the assistance of a vocational expert, the ALJ then
found that plaintiff could return to his PRW as a poultry handler, industrial cleaner, and
restaurant cleaner as actually and generally performed. Tr. 66.
Plaintiff appealed this decision to the Appeals Council, but said request for review was
denied on March 20, 2010. Tr. 1-4. Subsequently, plaintiff filed this action. ECF No. 1. This
case is before the undersigned by consent of the parties. Both parties have filed appeal briefs,
and the case is now ready for decision. ECF No. 7, 8.
II.

Applicable Law:
This court’s role is to determine whether the Commissioner’s findings are supported by

substantial evidence on the record as a whole. Cox v. Astrue, 495 F.3d 614, 617 (8th Cir. 2007).
Substantial evidence is less than a preponderance, but enough that a reasonable mind would find
it adequate to support the Commissioner’s decision. Id. “Our review extends beyond examining
the record to find substantial evidence in support of the ALJ’s decision; we also consider
evidence in the record that fairly detracts from that decision.” Id. As long as there is substantial
evidence in the record to support the Commissioner’s decision, the court may not reverse the
decision simply because substantial evidence exists in the record to support a contrary outcome,
or because the court would have decided the case differently. Haley v. Massanari, 258 F.3d 742,
747 (8th Cir. 2001). If we find it possible “to draw two inconsistent positions from the evidence,
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and one of those positions represents the Secretary’s findings, we must affirm the decision of the
Secretary.” Cox, 495 F.3d at 617 (internal quotation and alteration omitted).
It is well-established that a claimant for Social Security disability benefits has the burden
of proving his disability by establishing a physical or mental disability that has lasted at least one
year and that prevents him from engaging in any substantial gainful activity. Pearsall v.
Massanari, 274 F.3d 1211, 1217 (8th Cir.2001); see also 42 U.S.C. § § 423(d)(1)(A),
1382c(a)(3)(A). The Act defines “physical or mental impairment” as “an impairment that results
from anatomical, physiological, or psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § § 423(d)(3),
1382(3)(c). A plaintiff must show that his disability, not simply his impairment, has lasted for
at least twelve consecutive months.
A.

The Evaluation Process:

The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant has engaged in substantial
gainful activity since filing his or her claim; (2) whether the claimant has a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) meet or equal
an impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing past
relevant work; and, (5) whether the claimant is able to perform other work in the national
economy given his or her age, education, and experience. See 20 C.F.R. § § 404.1520(a)(f)(2003). Only if the final stage is reached does the fact finder consider the plaintiff’s age,
education, and work experience in light of his or her residual functional capacity. See McCoy
v. Schweiker, 683 F.2d 1138, 1141-42 (8th Cir. 1982); 20 C .F.R. § § 404.1520, 416.920 (2003).
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III.

Discussion:
Of particular concern to the undersigned is the ALJ’s failure to develop the record

concerning Plaintiff’s cardiac condition and memory loss. The ALJ has a duty to fully and fairly
develop the record. See Frankl v. Shalala, 47 F.3d 935, 938 (8th Cir. 1995) (ALJ must fully and
fairly develop the record so that a just determination of disability may be made). In determining
whether an ALJ has fully and fairly developed the record, the proper inquiry is whether the
record contained sufficient evidence for him to make an informed decision. See Payton v.
Shalala, 25 F.3d 684, 686 (8th Cir. 1994); Matthews v. Bowen, 879 F.2d 422, 424 (8th Cir.
1989).
In the present case, the evidence indicates that Plaintiff was treated for chest pain on
several occasions. On July 25, 2006, Plaintiff presented in the emergency room with complaints
of intermittent pain to the left upper chest near his shoulder. Tr. 175-177, 236-241. He had
taken two to three Nitroglycerin tablets each day over the previous two to three days and received
relief after a few moments. Plaintiff reported a history of hospitalization in Little Rock the
previous month during which he underwent a cardiac evaluation and was found to have an 80%
blockage. However, he could not remember the name of the hospital nor the doctor who treated
him. Plaintiff’s current pain subsided in the Emergency Room after the administration of one
Nitroglycerin and one Aspirin. A chest x-ray revealed occasional calcified granulomas, but no
acute infiltration. Tr. 174. By the following day, Plaintiff denied any further chest pain. Tr.
173. Dr. Wilson noted no change in his EKG, and his troponin level remained at 0. His blood
pressure was also normal. He diagnosed Plaintiff with chest pain of unknown etiology,
hypertension, and nicotine abuse and recommended smoking cessation. Dr. Wilson discharged
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him with a prescription for a healthy heart diet, Metoprolol, and Aspirin. He also advised him
to follow-up with a cardiologist and instructed him in the use of Nitroglycerin tablets. Tr. 173.
However, Dr. Wilson indicated that Plaintiff’s chest pain was worrisome, given that his
respirations tended to affect his pain and that he had an elevated CPK. Tr. 239.
On April 3, 2007, Plaintiff underwent a general physical with Dr. William Swindell. Tr.
178-188. Plaintiff stated that he was seeking disability due to memory problems and persistent
chest pain. Plaintiff reported chest pain, dyspnea with any type of walking, phobia of crowds,
and tobacco addiction. He described his chest pain as a heaviness in the right side of his chest
that radiated up into his right shoulder and right arm. Plaintiff indicated that working in his
garden and picking up a large rock would precipitate the pain. He used nitroglycerin and this
usually gave him relieve in less than four minutes. Occasionally, if he caught the pain very early
and was able to just sit down and rest, the pain was relieved without the need for medication.
Although Plaintiff had been hospitalized for chest pain in 2006 and told he needed to see a
cardiologist, he indicated that he had not done so due to financial issues and lack of insurance.
An EKG was unremarkable and did not reveal any obvious ischemic changes, and a chest
x-ray was normal. A cardiopulmonary exam showed hyper-resonance and decreased breath
sounds. A physical revealed a normal range of motion in all joints and extremities with no joint
abnormalities, deformities, instabilities, muscle weakness, or muscle atrophy. A sensory exam
was also normal, and his gait and coordination were found to be within normal limits. Dr.
Swindell diagnosed Plaintiff with chest pain of unknown etiology, among other things. He was,
however, quite concerned over the lack of objective evaluation concerning Plaintiff’s chest pain
and was therefore not able to provide an assessment of Plaintiff’s limitations. Tr. 178-188.
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On April 27, 2007, Plaintiff underwent a mental diagnostic evaluation with Dr. Don Ott.
Tr. 189-195. At this time, he reported to Dr. Ott that, in April 2006, he had been taken from
work to the hospital after suffering a heart attack, but had no memory of any medical treatment
prior to this.
On June 25, 2008, Plaintiff was treated at the River Valley Primary Care Services for
complaints of hip and lower back pain. Tr. 231-233. No numbness or tingling down the legs
or heavy lifting was reported. However, he did report problems breathing, concerns about
memory, and occasional chest pain or discomfort over the previous several weeks for which he
took Nitroglycerin with relief. Laboratory testing was ordered, and Plaintiff was given refills of
all medications. Tr. 231-233.
On August 27, 2008, Plaintiff returned for a follow-up concerning his depression and
blood pressure. Tr. 233-234. He was reportedly living with his daughter and had been having
memory problems. He also reported experiencing chest pain twice per month, relieved with
Nitroglycerine. Plaintiff was diagnosed with controlled hypertension, memory loss secondary
to unknown, agoraphobia, and recurrent chest pain. The doctor discussed with Plaintiff the need
for a stress test to re-evaluate his recurrent chest pain, but Plaintiff refused testing due to a lack
of finances. Tr. 233-234.
In spite of Plaintiff’s consistent reports that he had been hospitalized in Little Rock in
April 2006 for chest pain and undergone a cardiac evaluation, the ALJ made no attempt to obtain
those medical records. Further, although Dr. Swindell and the doctor at River Valley Primary
Care Services voiced their about the lack of objective evidence concerning Plaintiff’s cardiac
status and Dr. Swindell indicated that he could not evaluate Plaintiff’s RFC without further
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information, the ALJ failed to order a consultative cardiac evaluation. Without a cardiac
evaluation, the record contains absolutely no evidence upon which to base a conclusion that
Plaintiff’s cardiac impairment was non-severe. Accordingly, we believe remand is necessary to
allow the ALJ to develop the record further concerning Plaintiff’s cardiac symptoms. If the
records from his hospitalization in Little Rock can not be located, then Plaintiff should be sent
to a cardiologist for a consultative examination and an RFC assessment should be obtained from
the cardiologist.
The evidence also raises a question concerning Plaintiff’s long-term memory. As
previously noted, Plaintiff also complained of memory problems to Dr. Swindell. Tr. 178-188.
He reported a recent episode wherein he drove to his daughter-in-law’s house and sat in her
driveway, but could not remember how he got there. Dr. Swindell believed this to be an episode
of transient global amnesia, and noted that Plaintiff was a very poor historian when he could not
even remember whether his mother was alive or dead. Plaintiff did report a history of very heavy
alcohol use, but denied drinking in the previous three to four months. Dr. Swindell diagnosed
Plaintiff with memory loss/mental changes possibly related to alcohol consumption but indicated
that he would require a psychological evaluation and testing.
On April 27, 2007, Plaintiff underwent a mental diagnostic evaluation with Dr. Don Ott.
Tr. 189-195. Dr. Ott noted that Plaintiff was very vague and evasive about his symptoms and
could not remember anything prior to April 2006. Plaintiff denied a history of hospitalization,
medication, or outpatient treatment for mental or emotional disorders. He thought he might have
been hospitalized for depression, but could not say for sure. Plaintiff reported no current
psychotropic medications, and stated that he currently took only Nitroglycerin tablets and
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medication for hypertension. He was alcohol dependent until April 2006, but denied current
abuse or dependence, stating he was consuming as much as 30 cans of beer per day prior to his
hospitalization in 2006. Plaintiff also smoked cigarettes at the rate of one to two packages per
day. He was pleasant and cooperative during the interview with no signs of aggression or
hostility. Plaintiff could not described his mood other than to state that he experienced frequent
mood changes, erratic sleep, and decreased appetite. Dr. Ott noted that Plaintiff seemed very
nonchalant and resigned. He avoided eye contact and seemed mildly defensive. There was no
pressured speech or loosened associations. No symptoms of a thought disorder were observed
or reported. His thoughts were rational, coherent, and goal-directed. There was no evidence of
delusions or bizarre thinking. No auditory or visual hallucinations were observed or reported.
Plaintiff appeared alert and oriented on all three spheres with no loss of contact with reality. He
did, however, exhibit some major memory loss. Dr. Ott found no overt evidence of organic
impairment, but indicated that it was certainly a possibility in light of Plaintiff’s history of heavy
alcohol consumption. Dr. Ott indicated that Plaintiff could be suffering from amnesia or may
have very selective memory. His verbal skills were adequate and he could express himself.
However, his capacity to cope with the mental demands of work was deficient. His memory was
noted to be deficient, as well, which would interfere with some tasks such as operating heaving
equipment. His history and symptoms did not support a psychotic or mood disorder diagnosis.
Accordingly, Dr. Ott diagnosed him with alcohol dependence in early full remission and nicotine
dependence and assessed him with a global assessment of functioning (“GAF”) of 65-75. He
also voiced some concern regarding the validity of Plaintiff’s evaluation, given that he could not

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be certain whether Plaintiff had true amnesia or was exaggerating his symptoms for secondary
gain. Tr. 189-195.
In June 2008, the doctor a River Valley Primary Care Services noted that Plaintiff needed
a psychiatric evaluation and possible CT scan for memory impairment, but also stated that
Plaintiff was unable to pay for these at that time. Tr. 231-233.
In his opinion, the ALJ focused on Dr. Ott’s statement that exaggeration was a
possibility. However, he failed to consider Dr. Ott’s statement that he could not be certain
whether Plaintiff was truly suffering from amnesia or exaggerating his symptoms for secondary
gain. He also failed to consider Dr. Swindell’s notes concerning Plaintiff’s memory problems
and the June 2008 treatment note indicating that a CT scan was recommended, but that Plaintiff
was unable to obtain one due to financial constraints. See Tome v. Schweiker, 724 F.2d 711, 714
(8th Cir.1984) (holding that lack of financial resources to pay for hypertension and headache
medicine justified failure to follow a treatment plan). Given that Plaintiff’s memory problems
could impact his ability to perform work-related activities, as is evidenced by Dr. Ott’s statement
concerning moving machinery, we believe the ALJ should have developed the record further
concerning this issue. His failure to do so constitutes error and requires remand for further
evaluation. On remand, the ALJ is directed to send Plaintiff for a consultative evaluation to
determine the full extent of his memory problems and to obtain an RFC assessment from that
doctor as to Plaintiff’s ability to perform work-related activities.

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IV.

Conclusion:
Accordingly, we conclude that the ALJ’s decision is not supported by substantial

evidence and should be reversed and remanded to the Commissioner for further consideration
pursuant to sentence four of 42 U.S.C. § 405(g).
DATED this 2nd day of May 2011.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

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