Black v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on June 9, 2011. (rw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
GERARD JAMES BLACK

PLAINTIFF

v.

Civil No.10-2137

MICHAEL J. ASTRUE, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Gerard Black, 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 June 2, 2008, alleging an amended

onset date of January 11, 20081, due to bipolar disorder, pulmonary embolism, and
cardiomyopathy. Tr. 162, 190. An administrative hearing was held on August 28, 2009. Tr.
24-65. Plaintiff was present and represented by counsel. At this time, plaintiff was 31 years of
age and possessed the equivalent of a high school education. Tr. 28. He had past relevant work
(“PRW”) experience as a telemarketer and food plant worker. Tr. 39-40, 163.

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Plaintiff initially alleged an onset date of September 15, 2004, but due to a lack of medical evidence to
support this date, amended his onset date at the hearing. Tr. 64, 73.

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On January 6, 2010, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s impairments did not meet or equal any Appendix 1 listing. Tr. 75. The ALJ
determined that plaintiff maintained the residual functional capacity (“RFC”) to perform light
work that does not involve climbing of ladders, ropes, and scaffolds; sustained driving; work
near unprotected heights or dangerous machinery; or, work near excessive heat. From a mental
standpoint, he was also limited to non-complex, routine, repetitive work that could be learned
by rote with few variables, involving simple instructions, requiring little judgment and only
superficial with the public and coworkers incidental to the work performed, and involving
concrete, direct, and specific supervision. Tr. 77. With the assistance of a vocational expert, the
ALJ then found that plaintiff could perform work as a poultry plant line worker, production line
assembler, and sewing machine operator. Tr.60-62, 82.
Plaintiff appealed this decision to the Appeals Council, but said request for review was
denied on May 12, 2010. Tr. 1-3. 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. Plaintiff has also filed a motion for
submission of new and material evidence and the Administration has filed a response. ECF. No.
10, .
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
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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,
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
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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).
III.

Discussion:
Of particular concern to the undersigned is the ALJ’s RFC assessment. RFC is the most

a person can do despite that person’s limitations. 20 C.F.R. § 404.1545(a)(1). A disability
claimant has the burden of establishing his or her RFC. See Masterson v. Barnhart, 363 F.3d
731, 737 (8th Cir.2004). “The ALJ determines a claimant’s RFC based on all relevant evidence
in the record, including medical records, observations of treating physicians and others, and the
claimant’s own descriptions of his or her limitations.” Davidson v. Astrue, 578 F.3d 838, 844
(8th Cir. 2009); Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); Guilliams v.
Barnhart, 393 F.3d 798, 801 (8th Cir. 2005). Limitations resulting from symptoms such as pain
are also factored into the assessment. 20 C.F.R. § 404.1545(a)(3). The United States Court of
Appeals for the Eighth Circuit has held that a “claimant’s residual functional capacity is a
medical question.” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001). Therefore, an ALJ’s
determination concerning a claimant’s RFC must be supported by medical evidence that
addresses the claimant’s ability to function in the workplace.” Lewis v. Barnhart, 353 F.3d 642,
646 (8th Cir. 2003).

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Records indicate that Plaintiff was diagnosed with and treated for cardiomyopathy and
a pulmonary embolism. On March 10, 2008, Plaintiff presented in Dr. R. Peter Fleck’s office
for an evaluation for complaints of chest pain. Tr. 376-378. The pain reportedly radiated from
the left side of his chest into his axilla and down his left arm and was sometimes associated with
a clinched jaw. Mild nausea, heart palpitations, night sweats, and blurred vision were also
reported. Plaintiff indicated that these spells were not brought on by exertion nor by emotional
stress or anxiety. A physical examination revealed no abnormalities. An EKG demonstrated
sinus rhythm, an incomplete right bundle branch block, and a leftward axis. Lab studies revealed
normal electrolytes and cardiac enzymes. The event recorder revealed only sinus rhythm at a
normal rate. Tr. 382-384. Dr. Fleck indicated that Plaintiff’s EKG was consistent with a left
anterior fascicular block and an incomplete right bundle branch block which was sometimes seen
in cases of atrial septal defect or large patent foramen ovale.

He recommended an

echocardiogram combined with a stress test to assess his exercise tolerance, oxygen saturation
during stress, and the structural integrity of his heart, as well as to rule out ischemic heart
disease. If the event recorder showed no rhythm disturbances and the stress study was normal,
Dr. Fleck stated he would not recommend further cardiac evaluation. However, he suggested
Plaintiff stop smoking, get regular exercise, and consider alternative etiologies for his chest
discomfort. A stress study was scheduled for the following Thursday. Tr. 376-378.
On March 20, 2008, Dr. Fleck noted that Plaintiff had undergone a stress echocardiogram
study in which he walked through two minutes of Stage III of a Bruce protocol before the study
was stopped for exceeding target heart rate. Tr. 375, 808-811, 788. He had no problems with
chest pain or new electrocardiographic changes. Tr. 379-381. His resting EKG showed an
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incomplete right bundle branch block and left axis deviation consistent with left anterior
fascicular block. Further, his resting echocardiogram showed an ejection fraction of only 47%.
There was the suggestion of a little sluggishness in the lateral wall, but nothing definite. The
stress echo showed the ejection fraction increase to only 51%. There was no real significant
deterioration in the left ventricular function and no specific wall motion abnormalities, other than
a tendency for some sluggishness of the lateral wall. There was no evidence for intracardiac
shunt. Although this study was not significantly abnormal, Dr. Fleck did not believe it could be
characterized as conclusively normal either. For the time being, he recommended Plaintiff
continue to carry the event recorder for his palpitations, completely stop smoking, and get regular
exercise in the form of brisk walks or an equivalent aerobic activity. If Plaintiff were to begin
experiencing exertional chest pain or pressure, he was directed to contact Dr. Fleck. Otherwise,
Plaintiff was directed to return in four months to obtain another echocardiogram, which Dr.
Fleck felt would show any underlying cardiomyopathic process. Tr. 375.
On March 21, 2008, Plaintiff presented in the ER with complaints of chest pain and some
numbness in his left arm. Tr. 390-402, 636-637. Plaintiff’s physical examination was normal,
and a full cardiac work-up was unremarkable. An EKG revealed only sinus rhythm, left axis
deviation, and nonspecific T wave flattening. Tr. 804-805. Further, chest x-rays showed
hyperinflation of the lungs, but were otherwise normal. Tr. 648. The ER doctor conferred with
Dr. Fleck, who was not concerned about Plaintiff having cardiac chest pain and stated that it
would be safe to discharge him. Plaintiff was released home with a prescription for Vicodin.
The doctor also recommended that he take Pepcid or Prilosec to see if this might also help to
alleviate his symptoms. Tr. 390-402.
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On May 13, 2008, Plaintiff sought emergency treatment for chest pain that radiated into
his left arm and neck. Tr. 434-450. A chest x-ray revealed no acute disease process. An EKG
showed a normal sinus rhythm with no ST-T changes and normal PR and QS intervals.
Accordingly, Plaintiff was diagnosed with chest pain of unknown etiology and prescribed
Darvocet. Tr. 434-450.
On May 23, 2008, Plaintiff returned to the ER with complaints of continued right sided
chest pain. Tr. 451-483. A CT angiogram was significant for a right sub segmental pulmonary
embolism, and Plaintiff was referred to hospitalist services for inpatient admission and
management. He was admitted and placed on Lovenox and loaded with Coumadin. Lorcet was
used for pain control and Prilosec was administered to treat his GERD. Chantix was also
prescribed to help him stop smoking. On May 29, 2008, Plaintiff stated that he wished to be
discharged following the administration of his medication, stating that he had made arrangements
to follow up with his primary care physician the following morning. As such, he was dosed and
discharged home in stable condition. Tr. 451-483.
On July 16, 2008, Plaintiff followed-up with Dr. Fleck. Tr. 541-542, 785-786. He
reported continued episodes of chest discomfort, which he described as sharp and stabbing. Dr.
Fleck noted that Plaintiff’s EKG had previously shown a left anterior fascicular block. As such,
he believed it a good idea to follow-up with an echocardiogram to assess both left ventricular
function and to look for evidence of occult pulmonary hypertension. It was possible that
Plaintiff’s chest pain was caused by recurrent small pulmonary emboli and possibly a
hypocoagulable state. Tr. 541-542.

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An echocardiogram conducted on July 25, 2008, revealed diminished left ventricular
systolic performance with normal diastolic function and no evidence for valvular abnormalities.
Tr. 802-803.
On August 5, 2008, Dr. Fleck noted that a recent echocardiogram had revealed a ejection
fraction rate of 39% with no evidence of valvular abnormalities. Tr. 885, 783. He opined that
this was difficult to explain in a patient of Plaintiff’s young age, especially in light of his
negative stress study. Dr. Fleck felt this warranted an arteriogram to more carefully investigate
the potential etiologies of Plaintiff’s left ventricular dysfunction, as well as to confirm the LV
dysfunction and measure intracardiac pressures. Tr. 885.
On August 10, 2008, Plaintiff returned to the emergency room with complaints of chest
pain and dental pain. Tr. 546-564. The onset of chest pain was with exertion. A chest x-ray
revealed no acute cardiopulmonary disease.

Plaintiff was prescribed Lorcet Plus and

Erythromycin. Tr. 546-564.
On August 14, 2008, Plaintiff underwent a heart catheterization procedure. Tr. 638-639,
886-887, 800-801. It revealed cardiomyopathy of unknown etiology with normal filling
pressures and good cardiac output. His ejection fraction rate was measured at 45% with a post
PVC beat ejection fraction rate of 68%. Plaintiff was advised to avoid nicotine exposure, and
due to his remote history of methamphetamine abuse, it was noted that he would be screened for
re-exposure to any stimulant drugs. Tr. 638-639.
On September 2, 2008, Plaintiff was again treated for chest pain. Tr. 565-586. He
reported a cardiac catheterization with Dr. Fleck in August that revealed cardiomyopathy.
However, his EKG and triage panels were normal at this time. His D- Dimer level was slightly
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elevated, but the doctor noted that Plaintiff showed no clinical signs of a pulmonary embolism.
Plaintiff was prescribed Lorcet Plus. Tr. 565-586.
On September 11, 2008, Plaintiff continued to experience chest pain, in spite of taking
the Coumadin as prescribed. Tr. 524-526, 698-700. It was noted that Plaintiff had been taking
the same dosage of Coumadin since his heart catheterization. As such, Plaintiff’s dosage was
increased, and he was advised to return in one week for repeat monitoring. Tr. 524-526.
On September 15, 2008, Plaintiff returned to the ER with further complaints of episodic
chest pain. Tr. 602-619, 762-767, 742-759. Plaintiff was diagnosed with pleurisy and chest wall
pain. Tr. 602-619.
On October 24, 2008, Plaintiff’s blood pressure was 138/74. Tr. 780. Dr. Fleck felt that he
could tolerate a low dose ACE inhibitor and also prescribed Digoxin. He advised Plaintiff to
refrain from smoking, drinking, and using recreational drugs. Dr. Fleck also indicated that the
cardiomyopathy caused by Plaintiff’s prior drug use could be irreversible and could be the reason
for his problems today. Tr. 780.
On November 10, 2008, Plaintiff was again treated for chest pain with nausea and
shortness of breath. Tr. 841-848. An EKG revealed no changes from previous results. Tr. 799.
He was diagnosed with cardiomyopathy and administered Nitroglycerine, Morphine, Zofran, and
Lortab. Tr. 841-848.
On May 31, 2009, Plaintiff complained of exhaustion, trouble breathing, neck and
shoulder cramps, pain in the chest, a lump in his throat, and muscle tension. Tr. 815-827. A
chest x-ray was withing normal limits. However, an EKG revealed left axis deviation,

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incomplete right bundle branch block, and nonspecific T wave flattenining. Tr. 798. This was
interpreted as a borderline EKG. Tr. 798.
On July 2, 2009, Plaintiff complained of palpitations and chest pain. Tr. 930-955, 910929. An EKG revealed atrial fibrillation with a rapid ventricular response. He underwent an
adenosine stress/rest test with tetrofosmin myocardial perfusion imaging showing no myocardial
perfusion defects. However, his ejection fraction was 49% with mild global hypokinesis. He
was diagnosed with atrial fibrillation and chest pain. His atrial fibrillation responded well to
Digoxin, however, his INR level remained subtherapeutic. Plaintiff was released home on July
5, 2009, with plans to follow-up with Good Samaritan Clinic and Dr. Fleck. Tr. 930-955, 910929.
In spite of this evidence, we note that the record contains only one physical RFC
assessment, dated July 22, 2008. Tr. 486-493. It was prepared by a non-examining, consultative
doctor who had only the benefit of viewing Plaintiff’s medical records dated until July 22, 2008,
and concluded that Plaintiff was capable of performing medium level work. See Jenkins v. Apfel,
196 F.3d 922, 925 (8th Cir. 1999) (holding that the opinion of a consulting physician who
examined the plaintiff once or not at all does not generally constitute substantial evidence).
However, we note that repeat testing has revealed that Plaintiff has an ejection fraction rate of
40-49%. Although this ejection fraction rate is not low enough to meet the regulations threshold,
we do believe it is evidence of an ongoing impairment that would result in limitations. And,
given Plaintiff’s age and medical history, it is not unreasonable to conclude that Plaintiff’s heart
condition would limit his ability to perform a full range of medium work. However, without the
benefit of an RFC assessment from Plaintiff’s treating cardiologist or even the doctor at the Good
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Samaritan Clinic that performed his medication adjustments, it is not clear the exact level of
work Plaintiff could perform. And, we note that the RFC assessment assigned by the ALJ must
be supported by medical evidence that addresses the claimant’s ability to function in the
workplace. Lewis, 353 F.3d at 646. Accordingly, we believe remand is necessary to allow the
ALJ to reevaluate the medical evidence and obtain RFC assessments from Plaintiff’s treating
doctors. Chitwood v. Bowen, 788 F.2d 1376, 1378 n.1 (8th Cir. 1986); Dozier v. Heckler, 754
F.2d 274, 276 (8th Cir. 1985). If RFC assessments can not be obtained, then Plaintiff should
be referred to a cardiologist for a consultative examination and an RFC requested from the
examiner at the conclusion of the evaluation. See Johnson v. Astrue, 627 F.3d 316, 320 (8th Cir.
2010) (holding ALJ required to order medical examinations and tests if the medical records
presented to him do not give sufficient medical evidence to determine whether the claimant is
disabled). Medical records showing the results of Plaintiff’s previous EKG’s, echocardiograms,
stress tests, catheterizations, and arteriograms should also be forwarded to the examiner for his
review.
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 9th day of June 2011.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

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