-JRM Ashworth v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on December 1, 2011. (rw)

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

VICKY J. ASHWORTH
v.

PLAINTIFF
Civil No. 10-2147

MICHAEL J. ASTRUE, Commissioner of
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
I.

Factual and Procedural Background
Plaintiff, Vicky J. Ashworth, brings this action seeking judicial review, pursuant to 42 U.S.C.

§ 405(g), of a decision of the Commissioner of the Social Security Administration (“Commissioner”)
denying her application for supplemental security income (“SSI”) under Title XVI of the Social
Security Act (“the Act”).
Plaintiff protectively filed her SSI application on February 6, 2009, alleging disability as of
May 9, 2006, due to emphysema, chronic obstructive pulmonary disease (“COPD”), hearing
problems, urinary incontinence, reflux/gastritis, and joint pain. Tr. 10, 79-80, 140-142, 160, 163,
223-225. On the application date, Plaintiff was forty eight years old with a GED and barber training.
Tr. 45, 166, 629. She has no past relevant work. Tr. 20.
Plaintiff’s applications were denied at the initial and reconsideration levels. Tr. 83-88. At
Plaintiff’s request, an administrative hearing was held on December 11, 2009. Tr. 39-74. Plaintiff
was present at this hearing and represented by counsel. The ALJ rendered an unfavorable decision
on March 24, 2010, finding Plaintiff was not disabled within the meaning of the Act. Tr. 7-21.
Subsequently, the Appeals Council denied Plaintiff’s Request for Review on September 10, 2010,
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thus making the ALJ’s decision the final decision of the Commissioner. Tr. 1-3. Plaintiff now seeks
judicial review of that decision.
II.

Medical History
Plaintiff has a history of COPD, emphysema, urinary incontinence, back and joint pain,

chronic ear infection, gastritis, gastroesophageal reflux disease (“GERD”), reflux, headache, and
depression. Tr. 227-541.
On January 22, 2009, Plaintiff presented to St. Edward Mercy Medical Center (“St.
Edward’s”) with complaints of COPD, shortness of breath, and cough. Tr. 276-288. Plaintiff
admitted smoking two packs of cigarettes per day. Tr. 276. Wheezing was noted on physical
examination. Tr. 277. A CT of Plaintiff’s chest revealed right lower lobe infiltrate. Tr. 277, 280281. An echocardiogram revealed mildly dilated right-sided chambers, normal wall motion, normal
left ventricular systolic function with an ejection fraction estimated at 89%, and no evidence of
intracardiac masses or intracardiac thrombus. Tr. 278. Color flow and Doppler studies revealed
trace tricuspid regurgitation with an estimated PA pressure of 23 mmHG. Tr. 278. Plaintiff was
assessed with chronic COPD with exacerbation, possible pneumonia, and low potassium. Tr. 277.
Between March 2008 and January 2010, Plaintiff was treated by James Saunders, P.A., at
RVPCS Northside Clinic for the following complaints: COPD, shortness of breath, fatigue,
emphysema, urinary incontinence, arthritis, acid reflux, chronic suppurative otitis media, muscle
spasms, gastritis, vitamin D deficiency, and depression/mood problems. Tr. 227-275, 588-627. She
was prescribed the following medications: Oxybutynin (incontinence), Chlorphenamine
(antihistamine), Qvar inhaler, Naproxen, Meloxicam (arthritis), Albuterol aerosol with adapter,
Simethicone (gastritis), Nitroglycerin, Advair Diskus, Spiriva, ProAir aerosol, Ranitidine (acid
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reflux), Fluoxetine (depression), Protonix (acid reflux), Lasix, and calcium carbonate. Tr. 227-229.
In March 2008, Plaintiff complained of COPD, acid reflux, arthritis, moodiness, and urinary
incontinence. Tr. 610-612. She reported that Ranitidine did not completely help her acid reflux and
Naproxen made her sleepy. Tr. 610. She stated Prozac helped in the past, but caused weight gain.
Tr. 610. Saunders prescribed Fluoxetine, Oxybutynin for incontinence, Meloxicam for arthritis, and
Ranitidine. Tr. 612. On May 6, 2008, Saunders noted a pronounced cystocele and suspected a
rectocele. Tr. 608-610. In June 2008, Plaintiff was treated for acid reflux and urinary incontinence.
Tr. 606-607. Saunders gave Plaintiff samples of Protonix and discussed the possibility of a pessary
for urinary incontinence. Tr. 606-607. In August 2008, Plaintiff tested positive for H. Pylori
bacteria and was treated with antibiotics. Tr. 604-606.
As of February 26, 2009, Plaintiff stated she had quit smoking and was using nicotine gum.
Tr. 230. On examination, Plaintiff had normal respiration rhythm and depth, and her lungs were
clear to auscultation. Tr. 232. However, she complained of fatigue and dyspnea after walking half
a block. Tr. 596. Saunders prescribed Keflex, renewed Plaintiff’s prescriptions for Advair, Spiriva,
and ProAir, and gave samples until Plaintiff was approved for the medication assistance program.
Tr. 597.
In March 2009, Plaintiff was treated for sinusitis and ear infection. Tr. 593-595. In June and
July 2009, Plaintiff complained of ear drainage, muscle spasms (due to low potassium), abdominal
pain, neck pain and stiffness, shoulder and back pain, and acid reflux. Tr. 589-591. She was
smoking eight cigarettes per day. Tr. 592. On examination, Plaintiff had normal respiration rhythm
and depth and her lungs were clear to auscultation. Tr. 590, 593. Heart rate and rhythm were normal
with no murmurs. Tr. 590, 593. Plaintiff had epigastric and lower abdominal tenderness, but no
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other abdominal abnormalities were noted. Tr. 590. Saunders noted some cervical spine tenderness
at C3-4 and at the coracoid process. Tr. 593. However, Plaintiff had good range of motion in her
right shoulder with no impingement. Tr. 593. Plaintiff with assessed with chronic suppurative otitis
media, chest pain, shoulder joint pain, and limb cramps. Tr. 590, 593.
In December 2009, Plaintiff reported persistent nausea, bloating, and heartburn, which had
not been alleviated by Ranitidine or Prilosec. Tr. 636-638. She also reported coughing, ear pain,
and a stuffy nose. Tr. 636. On examination, Plaintiff had crackles in the right lower lobe and
tenderness throughout her abdomen. Tr. 637. She was treated with Carafate, Rondec-DM, and
Levaquin. Tr. 638. At a follow-up appointment, Plaintiff’s cough and stomach ache were improved,
although she still had a stuffy nose. Tr. 634-635. She was given corticosteroid injections,
antibiotics, and a muscle relaxer. Tr. 635.
On March 13, 2009, Plaintiff went to Arkansas Rehabilitation Services for a psychological
screening. Tr. 629-632. Plaintiff was cooperative and put forth good effort during testing. Tr. 629.
She reported being incarcerated for eighteen months on drug-related charges (methamphetamine),
but stated she had been clean for four years. Tr. 630. She reported her mental impairments as mood
swings and depression. Tr. 630. She had not received formal mental health treatment, but was
taking Prozac. Tr. 630. Various testing revealed below average to average intellectual and academic
ability. Tr. 630-631. Plaintiff had below average scores in spelling, math calculation, and reading
comprehension. Tr. 631. Strengths were noted in motor processing and sequencing skills. Tr. 631.
Cary W. Crawford, a licensed psychological examiner, diagnosed Plaintiff with mood disorder not
otherwise specified. Tr. 631. She noted that depression, insufficient physical/emotional energy, and
difficulty concentrating as problem areas likely to be manifested in an employment setting. Tr. 631.
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She also noted difficulty with mathematics, written tasks, spelling, and advanced reading of technical
materials. Tr. 631. Ms. Crawford recommended supportive counseling and noted that Plaintiff’s
employment potential might be best determined from a medical standpoint. Tr. 632.
In a Psychiatric Review Technique Form (“PRTF”) dated April 10, 2009, Jay Rankin, an
agency consultant, determined Plaintiff’s mental impairments were not severe. Tr. 544-557. Rankin
found mild restriction of activities of daily living, mild difficulties in maintaining social functioning,
mild difficulties in maintaining concentration, persistence, or pace, and no episodes of
decompensation, each of extended duration. Tr. 554.
On April 27, 2009, Plaintiff underwent spirometry testing at Fort Smith Lung Center. Tr.
558-561. Plaintiff coughed throughout testing, but gave fair effort. Tr. 558. FEV1 scores were 1.56,
1.52, and 1.55 pre-bronchodilator, and 1.57, 1.35, and 1.71 post-bronchodilator, respectively. Tr.
559.
On April 28, 2009, Plaintiff saw Van Hoang, M.D., for a consultative physical examination.
Tr. 562-567. Plaintiff reported the following impairments: COPD, emphysema, impaired hearing
(right ear), GERD/reflux, chest pain on exertion, and depression. Tr. 562-563. She reported prior
surgery to repair a perforated eardrum. Tr. 562. She stated she could walk two to three blocks
before experiencing shortness of breath. Tr. 563. Running and lifting heavy objects caused chest
pain. Tr. 563. She reportedly experienced chest pain three times per day. Tr. 563. Medications
included Albuterol inhaler, Ranitidine, Spiriva, Nitroquick, Advair, and Fluoxetine. Tr. 562.
On examination, Plaintiff could hear normal conversation. Tr. 564. She had normal breath
sounds with no wheezing. Tr. 564. Heart rhythm and rate were normal. Tr. 564. Plaintiff had full
range of motion in her cervical spine, lumbar spine, and all extremities. Tr. 564. No muscle spasms,
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weakness, or atrophy were noted. Tr. 565. Plaintiff was able to walk on her heels and toes, stand
without assistive devices, and squat/arise from a squatting position. Tr. 565. X-rays of Plaintiff’s
lumbar spine revealed mild accentuation of the normal lumbar lordosis, but no other abnormalities.
Tr. 567. Dr. Hoang diagnosed Plaintiff with chronic COPD, emphysema, impaired hearing, GERD,
and depression. Tr. 566. He found severe physical work limitations. Tr. 566.
In a Physical Residual Functional Capacity (“RFC”) Assessment dated May 7, 2009, Jim
Takach, M.D., found Plaintiff could occasionally lift/carry twenty pounds, frequently lift/carry ten
pounds, stand/walk/sit for about six hours in an eight-hour workday, and push/pull within those
limitations. Tr. 571-578. Dr. Takach determined Plaintiff could occasionally climb, balance, stoop,
kneel, crouch, and crawl. Tr. 573. He found no manipulative or visual limitations, but noted
Plaintiff should avoid situations where good hearing is necessary for safety or job performance. Tr.
575. Additionally, Dr. Takach determined Plaintiff should avoid concentrated exposure to fumes,
odors, dusts, gases, poor ventilation, and hazards (machinery, heights, etc.). Tr. 575.
III.

Applicable Law
The Court’s role on review is to determine whether the Commissioner’s findings are

supported by substantial evidence in the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583
(8th Cir. 2003). “Substantial evidence is less than a preponderance, but enough so that a reasonable
mind might accept it as adequate to support a conclusion.” Estes v. Barnhart, 275 F.3d 722, 724 (8th
Cir. 2002) (quoting Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001)). In determining whether
evidence is substantial, the Court considers both evidence that detracts from the Commissioner’s
decision as well as evidence that supports it. Craig v. Apfel, 212 F.3d 433, 435-36 (8th Cir. 2000)
(citing Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000)). If, after conducting this review, “it

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is possible to draw two inconsistent positions from the evidence and one of those positions
represents the [Secretary’s] findings,” then the decision must be affirmed. Cox v. Astrue, 495 F.3d
614, 617 (8th Cir. 2007) (quoting Siemers v. Shalala, 47 F.3d 299, 301 (8th Cir. 1995)).
To be eligible for disability insurance benefits, a claimant has the burden of establishing that
she is unable to engage in any substantial gainful activity due to a medically determinable physical
or mental impairment that has lasted, or can be expected to last, for no less than twelve months.
Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); 42 U.S.C. § 423(d)(1)(A). The
Commissioner applies a five-step sequential evaluation process to all disability claims: (1) whether
the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe
impairment that significantly limits her physical or mental ability to perform basic work activities;
(3) whether the claimant has an impairment that meets or equals a disabling impairment listed in the
regulations; (4) whether the claimant has the RFC to perform her past relevant work; and (5) if the
claimant cannot perform her past work, the burden of production then shifts to the Commissioner
to prove that there are other jobs in the national economy that the claimant can perform given her
age, education, and work experience. Pearsall, 274 F.3d at 1217; 20 C.F.R. § 404.1520(a),
416.920(a). If a claimant fails to meet the criteria at any step in the evaluation, the process ends and
the claimant is deemed not disabled. Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir.
2004).
IV.

Discussion
At step one, the ALJ determined Plaintiff had not engaged in substantial gainful activity at

any point since February 6, 2009, the application date. Tr. 12. At step two, the ALJ found Plaintiff
suffers from chronic obstructive pulmonary disease (“COPD”), decreased hearing, osteoarthritis, and

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mood disorder, all of which were considered severe impairments under the Act. Tr. 12. At step
three, he determined Plaintiff did not have an impairment or combination of impairments that met
or medically equaled a listed impairment. Tr. 12-16. At step four, the ALJ found Plaintiff could
perform light work (stand/walk/sit six hours in an eight-hour day, lift/carry twenty pounds
occasionally and ten pounds frequently), except she could occasionally climb, balance, stoop, kneel,
crouch, and crawl, and must avoid concentrated exposure to dusts, fumes, gases, odors, and poor
ventilation, and could have no exposure to hazards, such as unprotected heights and heavy
machinery. Tr. 16-19. Additionally, he determined Plaintiff could perform work where good
hearing is not necessary for safety and job performance. Tr. 16-19. Mentally, the ALJ determined
Plaintiff could understand, remember, and carry out simple, routine, and repetitive tasks, and respond
appropriately to supervision, coworkers, the general public, and usual work situations. Tr. 16-19.
Since Plaintiff did not have any past relevant work, the ALJ proceeded to step five. Tr. 19.
After receiving vocational expert testimony, the ALJ found jobs existing in significant numbers in
the national economy that Plaintiff could perform.1 Tr. 20. Accordingly, the ALJ determined
Plaintiff was not under a disability from February 6, 2009, the application date, through March 24,
2010, the date of the decision. Tr. 21.
On appeal, Plaintiff contends that the ALJ erred by: (1) failing to find her urinary
incontinence severe; (2) improperly determining her RFC; (3) improperly rejecting her subjective
complaints; and (4) failing to develop the record. See Pl.’s Br. 9-18. The court agrees.

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The ALJ determined Plaintiff could perform the requirements of representative occupations such as
machine tender, of which there are 950 jobs regionally and 118,800 jobs nationally, housekeeper, of which there are
1500 jobs regionally and 169,700 jobs nationally, and small products assembler, of which there are 950 jobs
regionally and 108,500 jobs nationally. Tr. 20.

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The ALJ has a duty to fully and fairly develop the record, even if a claimant is represented
by counsel. Wilcutts v. Apfel, 143 F.3d 1134, 1137 (8th Cir. 1998). “It is well-settled that the ALJ's
duty to fully and fairly develop the record includes the responsibility of ensuring that the record
includes evidence addressing the alleged impairments at issue from either a treating or examining
physician. Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir.2000) (holding that it was improper for an
ALJ to rely on the opinions of reviewing physicians alone). While the Secretary is under no duty
to go to inordinate lengths to develop a claimant's case, he must “make an investigation that is not
wholly inadequate under the circumstances.” Battles v. Shalala, 36 F.3d 43, 45 (8th Cir. 1994)
(quoting Miranda v. Secretary of Health, Educ. & Welfare, 514 F.2d 996, 998 (1st Cir. 1975)).
There is no bright-line test for determining when the Secretary has failed to adequately develop the
record; the determination must be made on a case by case basis. Battles, 36 F.3d at 45 (quoting
Lashley v. Secretary of Health & Human Serv., 708 F.2d 1048, 1052 (6th Cir.1983)).
Under the circumstances of this case, the ALJ failed to fully develop the record with regard
to Plaintiff’s alleged depression/mood disorder. The record does not contain any mental RFC
assessments from any treating, consultative, or agency physicians. DiMasse v. Barnhart, 88 Fed.
App. 956, 967 (8th Cir. 2004) (record contained no mental RFC assessment). See Haley v.
Massanari, 258 F.3d 742, 749 (8th Cir. 2001) (reversible error for ALJ not to order a consultative
examination where such evaluation is necessary to make an informed decision). Although Plaintiff
did not specifically allege depression in her initial application paperwork, she discussed her
depression in detail at the administrative hearing and also in the pre-hearing memorandum. Tr. 5152, 64-65, 224-225. Additionally, Plaintiff’s medical records reflect treatment for depression/mood
symptoms with Prozac. Tr. 227-229, 297-300, 610-612. Ms. Crawford, a licensed psychological

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examiner, noted that depression, insufficient physical/emotional energy, and difficulty concentrating
would likely be problematic in an employment setting. Tr. 631. Moreover, the ALJ’s own
acknowledgment that Plaintiff’s mood disorder is severe should have alerted him of the need to
obtain a consultative mental evaluation to determine the full extent of Plaintiff’s mental restrictions.
Tr. 12. For these reasons, remand is necessary for further development of the record.
On remand, the ALJ should obtain a consultative mental evaluation. Additionally, he should
seek clarification concerning Dr. Hoang’s opinion that Plaintiff had severe physical limitations. Tr.
566. While the court agrees with the ALJ that Dr. Hoang’s opinion is internally inconsistent, there
are no physical RFC assessments from a treating or examining physician in this case. As such,
clarification of Dr. Hoang’s opinion would be useful in determining the full extent of Plaintiff’s
limitations and understanding why his findings were severe despite a fairly normal examination.
Once the ALJ has obtained sufficient information concerning Plaintiff’s mental and physical
limitations, he should reassess Plaintiff’s RFC, taking into account all her impairments, including
her alleged urinary incontinence.
V.

Conclusion
Accordingly, the undersigned concludes 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).
IT IS SO ORDERED this 1st day of December 2011.

/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

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