Wolff v. Social Security Administration Commissioner

Filing 13

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on February 22, 2012. (rw)

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

CORENA M. WOLFF
v.

PLAINTIFF
Civil No. 10-2187

MICHAEL J. ASTRUE, Commissioner of
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
I.

Factual and Procedural Background
Plaintiff, Corena M. Wolff, 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 applications for disability insurance benefits (“DIB”) and supplemental security income
(“SSI”) under Titles II and XVI of the Social Security Act (“the Act”).
Plaintiff protectively filed her applications on March 24, 2008, alleging a disability onset date
of March 1, 2008, due to fracture of the left tibia status-post surgery and depression. Tr. 15. On the
alleged onset date, Plaintiff was thirty seven years old with a college degree in accounting. Tr. 21,
42, 174. She has past work as an administrative assistant, general accounting clerk, accountant,
payroll clerk, waitress, accounts payable clerk, and house cleaner. Tr. 20, 49-50, 187-195.
Plaintiff’s applications were denied at the initial and reconsideration levels. Tr. 94-104. At
Plaintiff’s request, an administrative hearing was held on July 31, 2009. Tr. 38-87. Plaintiff was
present at this hearing and represented by counsel. The ALJ rendered an unfavorable decision on
February 26, 2010, finding Plaintiff was not disabled within the meaning of the Act. Tr. 9-22.
Subsequently, the Appeals Council denied Plaintiff’s Request for Review on November 24, 2010,
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thus making the ALJ’s decision the final decision of the Commissioner. Tr. 1-5. Plaintiff now seeks
judicial review of that decision.
II.

Medical History
A. Summit Medical Center
On March 1, 2008, Plaintiff presented to Summit Medical Center after falling and injuring

her left knee. Tr. 231-240. X-rays of Plaintiff’s left knee revealed a fracture of the proximal left
tibia. Tr. 240. Plaintiff was given a knee immobilizer and referred to an orthopedist. Tr. 232-233.
B. River Valley Musculoskeletal Center
On March 4, 2008, Plaintiff was referred to Marvin E. Mumme, M.D., for evaluation of her
knee injury. Tr. 224-229. On examination, Plaintiff exhibited tenderness throughout her left knee
and had approximately 1+ effusion. Tr. 228. X-rays revealed a lateral tibial plateau fracture. Tr.
228-229. Dr. Mumme recommended surgery and informed Plaintiff that she was at high risk for
arthritis due to the nature of her fracture. Tr. 228.
On March 14, 2008, Plaintiff underwent open reduction and internal fixation of her left knee
with plating and screws. Tr. 247-249, 255-256, 359-360. Post-surgical x-rays revealed good post
reduction alignment. Tr. 250. Following surgery, Plaintiff was doing fairly well, but reported
difficulty sleeping. Tr. 224. Extension and flexion were limited, but Plaintiff’s wound was healing.
Tr. 224. Dr. Mumme prescribed Lorcet and Ambien. Tr. 224. He instructed Plaintiff to avoid
weight bearing on the left and to use her brace, crutches, and a walker. Tr. 224. At a follow-up
appointment on April 18, 2008, Dr. Mumme admonished Plaintiff to use her walker and do no more
than protected weight bearing. Tr. 253. On examination, Plaintiff had -35 degrees of extension and
115 degrees of flexion. Tr. 253. She was placed in an extension cast. Tr. 253.
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On April 28, 2008, Plaintiff had a manipulation of her left knee performed due to very
limited extension and flexion. Tr. 382-384. Following the procedure, a cylinder cast was applied.
Tr. 382.
In June 2008, Dr. Mumme noted some improvement in extension and flexion. Tr. 264.
Plaintiff was able to walk around the house without her brace, but Dr. Mumme instructed her to
continue wearing her brace outside.

Tr. 264.

Plaintiff’s fracture appeared to be healing

satisfactorily. Tr. 264. Dr. Mumme stated Plaintiff could not return to work for an additional six
to twelve weeks, but noted she could progress with other activities as tolerated. Tr. 264.
In July 2008, Plaintiff injured her leg attempting to get out of her husband’s truck. Tr. 432.
On examination, Plaintiff had full flexion, but she was lacking 7 to10 degrees of full extension. Tr.
432. X-rays revealed stable hardware and maintained joint spaces with no recurrent fracture or
injury. Tr. 432-433.
In November 2008, Plaintiff had a pain injection in her knee. Tr. 418, 424-425. On
December 16, 2008, Plaintiff still lacked about ten degrees of full extension. Tr. 418. As a result,
Dr. Mumme put Plaintiff in an extension cast. Tr. 418. He completed a Medical Source Statement
(“MSS”) in which he determined Plaintiff would be totally disabled for an additional one to three
months. Tr. 415-416. Dr. Mumme found that Plaintiff could return to work on March 16, 2009.
Tr. 416.
On December 29, 2008, Dr. Mumme noted that Plaintiff had not been the “most aggressive
patient as far as her rehabilitation and requiring a great deal of pain medication.” Tr. 414. At this
time, Plaintiff’s extension was limited to -15 degrees. Tr. 414.

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In February 2009, Plaintiff complained of low back pain. Tr. 401. Straight leg raising was
negative and Plaintiff’s motor function was intact. Tr. 401. Dr. Mumme noted a very slight limp
on the left. Tr. 401. He ordered physical therapy twice a week for four weeks. Tr. 347-353. By the
end of treatment, Plaintiff had met all her therapy goals and reported increased stability and minimal
and infrequent pain. Tr. 353, 511-517. On February 18, 2009, Dr. Mumme signed a release for
Plaintiff to return to work. Tr. 396. At this time, he stated Plaintiff’s fracture had healed. Tr. 396.
On May 29, 2009, due to continual pain and range of motion difficulties, Plaintiff underwent
surgery for hardware removal. Tr. 389-393, 463-468. Dr. Mumme restricted Plaintiff to protected
weight bearing for six weeks following surgery. Tr. 391-392. At a follow-up appointment on June
9, 2009, Dr. Mumme noted that Plaintiff was doing much better. Tr. 560. On examination, Plaintiff
had excellent flexion of the knee and was working on her extension. Tr. 560. Dr. Mumme
instructed Plaintiff to use a walker for three additional weeks and then switch to a cane for three
weeks. Tr. 560. In July 2009, Dr. Mumme found that Plaintiff had markedly improved. Tr. 559.
X-rays of Plaintiff’s left knee revealed reasonably well-maintained joint space and a healed fracture.
Tr. 559.
C. Agency Consultants
In a Physical Residual Functional Capacity (“RFC”) Assessment dated July 8, 2008, Jerry
Mann, M.D., determined Plaintiff could occasionally lift/carry twenty pounds, frequently lift/carry
ten pounds, sit/stand/walk for about six hours in an eight-hour workday, and push or pull an
unlimited amount, except as shown for lift/carry. Tr. 268-275. Dr. Mann found no postural,
manipulative, visual, communicative, or environmental limitations. Tr. 270-272. He determined
that Plaintiff would be capable of performing light work within a year following her surgery. Tr.
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275.
D. AHEC Fort Smith
Plaintiff was treated by Bryan Clardy, M.D., for depression and perimenopausal syndrome.
Tr. 316-337. Dr. Clardy prescribed Paxil for depression and referred Plaintiff to Perspectives
Behavioral Health Management (“Perspectives”) for mental health treatment. Tr. 334.
E. Perspectives Behavioral Health Management
In August 2008, Plaintiff began treatment at Perspectives. Tr. 280-313, 438-461, 562-566.
Plaintiff reported depression, anxiety, strained family relationships, situational stress, and attention
problems. Tr. 294-313. Plaintiff was taking Paxil and Strattera. Tr. 305. On examination, Plaintiff
was fully oriented, but appeared depressed and tearful. Tr. 310. Plaintiff’s memory appeared intact,
and attention and concentration were normal. Tr. 310. Thought processes, thought content, and
insight were all normal. Tr. 311. Plaintiff denied any suicidal or homicidal ideation. Tr. 311.
Plaintiff’s intelligence was estimated to be within the average range. Tr. 310. Michael Steinbeck,
a licensed master social worker, diagnosed Plaintiff with depressive disorder, not otherwise specified
(“NOS”), and estimated her Global Assessment of Functioning (“GAF”) score at 41-50. Tr. 311312.
On October 31, 2008, Plaintiff was evaluated by Brent V. Witherington, M.D. Tr. 289-293.
On examination, Plaintiff’s mood was “okay” and her affect was euthymic. Tr. 291. Plaintiff’s
memory was intact, and her insight and judgment were adequate. Tr. 291. Thought processes were
tangential throughout the interview and thought content appeared almost delusional. Tr. 292. Dr.
Witherington diagnosed Plaintiff with depressive disorder NOS and estimated her GAF score at 45.
Tr. 293. He discontinued Strattera, but instructed Plaintiff to continue taking Paxil. Tr. 292. At a
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follow-up appointment in November 2008, Plaintiff reported feeling worse since discontinuing
Strattera. Tr. 281. She also reported mood swings, headaches, and increased anxiety. Tr. 281. On
examination, Plaintiff’s thought processes were logical, and her insight and judgment were intact.
Tr. 281. Dr. Witherington instructed Plaintiff to continue Paxil and discussed adding low-dose
Abilify. Tr. 281. He estimated Plaintiff’s GAF score at 47 and noted that she had improved. Tr.
281.
On January 15, 2009, Plaintiff stated she was doing worse. Tr. 405. She reportedly ran out
of Abilify and Klonopin, but admitted she was doing better when taking Abilify as directed. Tr. 405.
She also reported being in an abusive relationship. Tr. 405. Dr. Witherington diagnosed Plaintiff
with depressive disorder NOS and rule out bipolar disorder. Tr. 405. He determined Plaintiff’s
condition had deteriorated and estimated her GAF score at 40. Tr. 405. Dr. Witherington instructed
Plaintiff to restart Klonopin and Abilify. Tr. 405. Plaintiff’s therapist arranged shelter at the
women’s crisis center, where she stayed for seventy days. Tr. 72, 410-411. At a counseling session
on January 23, 2009, Plaintiff was encouraged to attend day therapy. Tr. 406.
On March 26, 2009, Dr. Witherington completed a Medical Source Statement (“MSS”), in
which he determined Plaintiff was markedly limited in her ability to understand, remember, and carry
out detailed instructions, maintain attention and concentration for extended periods, perform
activities within a schedule, maintain regular attendance, and be punctual within customary
tolerances, make simple work-related decisions, interact appropriately with the general public, get
along with coworkers or peers without distracting them or exhibiting behavioral extremes, respond
appropriately to changes in the work setting, and set realistic goals or make plans independently of
others. Tr. 343-345. Dr. Witherington found moderate limitations in Plaintiff’s ability to complete

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a normal workday and workweek without interruptions from psychologically based symptoms,
perform at a consistent pace without an unreasonable number and length of rest periods, and accept
instructions and respond appropriately to criticism from supervisors. Tr. 343-345.
Dr. Witherington noted that Plaintiff’s depression and anxiety directly affected her daily
functioning. Tr. 345. He stated that Plaintiff worried, was easily overwhelmed, displayed low mood
with low motivation, and tired quickly. Tr. 345. He further noted that Plaintiff had difficulty
focusing on tasks and making independent decisions. Tr. 345. Dr. Witherington determined
Plaintiff had demonstrated some improvement over the past month and her mood was more stable,
but she still had difficulty with daily tasks. Tr. 345. He estimated Plaintiff’s GAF score at 40 and
noted a good prognosis with extended treatment. Tr. 345.
On June 10, 2009, Plaintiff reported that she was doing worse. Tr. 439. On examination,
Plaintiff was tearful with a flat affect. Tr. 439. Thought processes were within normal limits, but
Plaintiff’s judgment and insight were limited. Tr. 439. Dr. Witherington determined that Plaintiff’s
condition had deteriorated and estimated her GAF score at 38. Tr. 439. On June 24, 2009, Plaintiff
reported that she was no longer crying, but she was still depressed and upset. Tr. 438. At the time,
Plaintiff was taking Zoloft, Wellbutrin, and Klonopin. Tr. 438. Dr. Witherington estimated
Plaintiff’s GAF score at 40. Tr. 438.
On October 12, 2009, Plaintiff stated that she was “about the same.” Tr. 561. She reported
headaches, feelings of depression and hopelessness, concentration problems, and sleep difficulties,
although her sleep had improved overall. Tr. 561. On examination, Plaintiff’s memory, judgment,
and insight were adequate. Tr. 563. She denied suicidal thoughts or ideation. Tr. 563. Dr.
Witherington diagnosed Plaintiff with major depressive disorder, single, moderate, generalized

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anxiety disorder, dependent personality disorder traits, and physical abuse of adult (victim). Tr. 565.
He estimated Plaintiff’s GAF score at 42 and instructed her to taper off of Wellbutrin due to
headaches. Tr. 564-565. He also considered adding Effexor to Plaintiff’s medications. Tr. 564.
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
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;

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(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.

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

any point since March 1, 2008, the alleged onset date. Tr. 14-15. At step two, the ALJ found
Plaintiff suffered from depression and fracture of the left tibia status-post surgery, which were
considered severe impairments under the Act. Tr. 15. At step three, he determined Plaintiff did not
have an impairment or combination of impairments that met or medically equaled a listed
impairment. Tr. 15-16.
At step four, the ALJ found Plaintiff had the RFC to perform less than the full range of
sedentary work. Tr. 16-20. He determined Plaintiff could do no climbing of scaffolds, ladders, and
ropes, and no crawling, kneeling, or balancing. Tr. 16-20. The ALJ found Plaintiff should avoid
exposure to unprotected heights and dangerous equipment, and should do no sustained driving. Tr.
16-20. Mentally, the ALJ determined Plaintiff could engage in work involving only non-complex,
simple instructions with little judgment and work that is routine, repetitive, and learned by rote with
few variables. Tr. 16-20. Further, he found that Plaintiff’s contact with others should be superficial

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and incidental, and supervision should be concrete, direct, and specific. Tr. 16-20.
With these limitations, the ALJ found Plaintiff could not perform her past relevant work. Tr.
20. However, after receiving vocational expert testimony, the ALJ found jobs existing in significant
numbers in the national economy that Plaintiff could perform.1 Accordingly, the ALJ determined
Plaintiff was not under a disability from March 1, 2008, the alleged onset date, through February 26,
2010, the date of the decision. Tr. 22.
V.

Discussion
On appeal, Plaintiff contends the ALJ erred by: (1) dismissing the opinions of her treating

physicians; (2) improperly determining her RFC; and (3) discrediting her subjective complaints. See
Pl.’s Br. 9-20. For the following reasons, the court finds that substantial evidence does not support
the ALJ’s decision.
The ALJ improperly dismissed Dr. Witherington’s MSS. A treating physician’s opinion is
given controlling weight if it “is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence” in a clamant’s
record. Tilley v. Astrue, 580 F.3d 675, 679 (8th Cir. 2009); 20 C.F.R. § 404.1527(d)(2). The record
must be evaluated as a whole to determine whether the treating physician’s opinion should be
controlling. Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005). A treating physician’s evaluation
may be disregarded where other medical assessments “are supported by better or more thorough
medical evidence, or where a treating physician renders inconsistent opinions that undermine the
credibility of such opinions.” Id. at 920-21 (quoting Prosch, 201 F.3d at 1013). In any case, an ALJ
1

The ALJ determined Plaintiff could perform the requirements of representative occupations such as
inspector, of which there are 300 jobs regionally and 3300 jobs nationally, machine tender, of which there are 500
jobs regionally and 10,000 jobs nationally, and cutter and paster of press clippings and microfilm documents
repairer, of which there are 500 jobs regionally and 32,000 jobs nationally. Tr. 21-22, 80-83.

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must always “give good reasons” for the weight afforded to the treating physician’s opinion. 20
C.F.R. § 404.1527(d)(2).
Regarding Dr. Witherington’s MSS, the ALJ stated:
Dr. Witherington apparently relied upon the claimant’s self-reported problems
without any actual psychiatric or psychological testing, and he reported that her
prognosis was good with extended treatment. Additionally, it appears that the
claimant last saw Dr. Witherington on June 24, 2009, and his notes indicate her
condition had improved at that time. Additionally, the claimant testified that she
prepares meals for her family and goes shopping and is able to get back and forth to
the laundry facility within her apartment complex. Accordingly, the undersigned
gives little weight to Dr. Witherington’s medical source statement.
Tr. 19.
The court recognizes that the ultimate issue of disability is one reserved to the Commissioner.
See Brown v. Astrue, 611 F.3d 941, 952 (8th Cir. 2010). Furthermore, “treating physicians’ opinions
are not medical opinions that should be credited when they simply state that a claimant can not be
gainfully employed.” Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004). In this instance,
however, Dr. Witherington’s assessment is not merely a conclusory medical opinion.

Dr.

Witherington treated Plaintiff consistently throughout the relevant time period and completed a
detailed MSS, in which he offered specific findings to support his conclusion. Tr. 345. In support
of his opinion, Dr. Witherington stated:
[Plaintiff] is currently being treated for Major Depressive Disorder and Generalized
Anxiety Disorder. Her daily functioning is directly affected by depression and
anxiety. She becomes overwhelmed easily, worries, displays very low mood with
low motivation and tires quickly. It is difficult for her to focus on tasks and she has
trouble making independent decisions. Over the past month she has displayed some
improvement in her level of functioning and her mood has become a bit more stable;
however, it is still difficult for her to complete daily tasks. Currently her GAF is 40,
but her prognosis is good with extended treatment.
Tr. 345.

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The ALJ’s primary reason for dismissing Dr. Witherington’s MSS was that he relied on
Plaintiff’s self-reported problems without any actual psychiatric or psychological testing. Tr. 19.
However, depression is a complex and largely subjective illness that does not easily lend itself to
diagnostic or other objective testing.

Here, the length of treatment is a testament to Dr.

Witherington’s familiarity with Plaintiff’s symptoms. Moreover, Dr. Witherington was the only
physician to complete a mental RFC assessment. In fact, the court cannot find any evidence that a
mental RFC assessment was completed at the agency level. Because Dr. Witherington was the only
physician to report on Plaintiff’s mental impairments, disregarding his opinion left no medical
evidence in the record on the issue. See DiMasse v. Barnhart, 88 Fed. Appx. 956, 957 (8th Cir.
2004); see also Haley v. Massanari, 258 F.3d 742, 749 (8th Cir. 2001) (reversible error for ALJ not
to order consultative examination where such evaluation is necessary to make informed decision).
Finally, the ALJ noted that Plaintiff’s condition had improved as of June 24, 2009. Tr. 19.
However, a glance at Dr. Witherington’s treatment notes reveal that Plaintiff had merely improved
from a prior deterioration of her condition. Tr. 438-439. Contrary to the ALJ’s findings, Dr.
Witherington’s overall notes and GAF scores reflect that Plaintiff’s depression was not controlled
or improved for any length of time. For the aforementioned reasons, the courts finds that substantial
evidence does not support the ALJ’s determination. As such, this case is remanded for further
development of the record concerning Plaintiff’s mental impairments.
VI.

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). This matter should be remanded to
the Commissioner for reconsideration of the issue of Plaintiff’s RFC, based on all relevant evidence,
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including medical records, opinions of treating medical personnel, and Plaintiff’s description of her
own limitations. Dunahoo v. Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001).
IT IS SO ORDERED this 22nd day of February 2012.

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

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