Wyers v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on February 15, 2012. (lw)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
Civil No. 11-2028
MICHAEL J. ASTRUE, Commissioner
Social Security Administration
Plaintiff, Paul Wyers, 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).
The plaintiff filed his applications for DIB and SSI on January 31, 2006, alleging an onset date
of May 1, 2005, due to back pain, seizures, and depression. Tr. 19, 54-58, 83, 86, 101, 121, 218, 379,
463, 487, 498. His claims were denied both initially and upon reconsideration. Tr. 19, 41-47. An
administrative hearing was then held on May 23, 2007, and an unfavorable decision resulted. Tr. 377391. Following denial of review by the Appeals Council, this matter was appealed to this Court. On
September 10, 2009, an order was entered reversing and remanding the case to the Commissioner for
further administrative proceedings. Tr. 415-420.
After remand, the matter was consolidated with a new SSI application dated August 1, 2008.
A supplemental administrative hearing was held on August 9, 2010. Tr. 395, 757-781. Plaintiff was
present and represented by counsel.
At the time of the supplemental hearing, plaintiff was 37 years of age and possessed an eleventh
grade education. Tr. 15, 379-380, 764 . He had past relevant work (“PRW”) as a forklift operator and
highway maintenance laborer. Tr. 75-82, 380, 386, 387.
On October 22, 2010, the Administrative Law Judge (“ALJ”) concluded that, although severe,
plaintiff’s status post back surgery and epilepsy did not meet or equal any Appendix 1 listing. Tr. 397399. The ALJ determined that plaintiff maintained the residual functional capacity (“RFC”) to perform
light work requiring only occasional climbing ramps/stairs, balancing, stooping, kneeling crouching, and
crawling and no climbing ladders/scaffolds/ropes, exposure to hazards such as unprotected heights and
heavy machinery, and no driving. Tr. 399-404. He also concluded that Plaintiff could understand,
remember, and carry out simple, routine, and repetitive tasks as well as respond appropriately to
supervisors, co-workers, the general public, and usual work situations. With the assistance of a
vocational expert, the ALJ then found that plaintiff could perform work as a machine tender, assembly
worker, and inspector. Tr. 71-72.
Plaintiff appealed this decision to the Appeals Council, but said request for review was denied
on February 1, 2011. Tr. 1-5. 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. 11, 12.
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, 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
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.
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).
Of particular concern to the undersigned is the ALJ’s treatment of the RFC assessments
of Dr. R. W. Ross, Plaintiff’s treating physician, and his medical records in support thereof. The opinion
of a treating physician is accorded special deference and will be granted controlling weight when wellsupported by medically acceptable diagnostic techniques and not inconsistent with other substantial
evidence in the record. 20 C.F.R. § 404.1527(d)(2); Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir.
2000). Further, the ALJ is not free to ignore medical evidence, rather must consider the whole record.
Reeder v. Apfel, 214 F.3d 984, 988 (8th Cir. 2000)
On April 25, 2006, Dr. Ross completed an Arkansas Department of Human Services Confidential
Report of Medical Examination of Patient. Tr. 214-216. He noted that plaintiff had permanent
disabilities namely, a herniated disk in his lumbar spine and seizure disorder. As a result, Dr. Ross stated
that plaintiff was severely limited with regard to stooping, kneeling, pushing, pulling, and carrying. He
also found plaintiff to be moderately limited with regard to standing and walking. Tr. 214-216.
On February 5, 2007, Dr. Ross completed a physical RFC assessment. Tr. 202-205. He
concluded that plaintiff could sit for 2 hours during an 8-hour workday; stand and/or walk for 10 to 30
minutes during an 8-hour workday; occasionally lift up to 5 pounds; never lift more than 5 pounds; never
carry; could not push/pull or work about shoulder level; could never bend, squat, crawl, climb, reach,
stoop, or crouch; and, would have mild restrictions with regard to working near marked changes in
temperature, humidity, and performing tasks requiring him to drive. Dr. Ross stated that his RFC was
based on x-rays of Plaintiff’s back and neck and his history of grand mal seizures. Tr. 202-205. At this
time, Plaintiff’s medications included Oxycodone, Nexium, Methocarbamol, Cymbalta, Lexapro, and
Tegretol. Tr. 209.
On July 30, 2010, Dr. Ross completed a second physical RFC assessment. Tr. 681-683. He
indicated that Plaintiff could seldom lift less than 10 pounds, never lift more than 10 pounds, stand and
walk less than 2 hours during an 8-hour workday, sit less than 6 hours during an 8-hour workday, must
alternate between sitting and standing to relieve discomfort, and was limited with regard to pushing and
pulling with his upper extremities. Dr. Ross stated that his findings were supported by MRIs of
Plaintiff’s lumbar and cervical spine showing abnormalities that would make it difficult for Plaintiff to
even perform activities of daily living. He then opined that Plaintiff could never climb, balance, kneel,
crouch, or crawl; would be limited with regard to reaching, handling, fingering, and feeling due to the
pain in his back and neck and numbness in his fingers; and, should avoid temperature extremes, noise,
vibration, humidity/wetness, and hazards. Dr. Ross further explained that temperature, noise, vibration,
humidity, and wetness could affect Plaintiff’s pain level. Tr. 681-683.
We note that Dr. Ross’s treatment of Plaintiff began in December 2005 and continued through
April 2010, spanning approximately five years. Tr. 170-171, 174, 175, 177-178, 210, 363-369, 631, 686687, 689-690, 693-694, 695-696, 697, 698-699. During that time, physical exams revealed marked
paraspinous muscle spasm, protective movement of the neck, an antalgic gait (limp), the use of a cane,
abnormal nerve root findings, positive bilateral straight leg raise tests, tenderness in the lumbosacral
spine, and a decreased range of motion in the lumbar spine.1
Additional objective records also provide support for Dr. Ross’s physical findings. An MRI of
Plaintiff’s lumbar spine revealed a mild wedge shaped appearance of the superior end plate of the T12,
especially towards the left side that may be due to an old fracture; a loss of T2 disk signal and height at
the L5-S1; and, a broad disk bulge at the L5 with right sided posterolateral protrusion along the inferior
There are also records from Dr. Ross that do not contain the findings of his physical exam. Instead,
they simply refer to the “face sheet,” which is not included in the record. Tr. 172, 207, 246, 248, 252-253, 254,
520-522. However, it does not appear that these face sheets were ever requested by the ALJ.
aspect of the foramen narrowing the right lateral recess, not obviously compressing the exited L5 nerve
root. Tr. 154. A follow-up MRI was conducted in December 2005, again revealing herniation of the L5S1 disk with herniation to the right having some mild effect on the passing right S1 nerve root. Tr. 142,
179.Plaintiff was diagnosed with L5-S1 herniated disk with right radiculopathy and referred to a
neurosurgeon. Tr. 142.
On January 26, 2006, neurosurgeon, Dr. Arthur Johnson evaluated Plaintiff. Tr. 229-234. He
complained of back pain with radiation to the right hip, right leg, and posteriorly to the ankle. Plaintiff
had anterior thigh numbness and pain as well. He stated that he had not undergone physical therapy or
epidural steroid injections, but desired to have surgical intervention if possible to alleviate his pain.2
After reviewing Plaintiff’s most recent MRI and an x-ray showing a compression fracture at the T12, Dr.
Johnson diagnosed him with L5-S1 disk herniation with radiculopathy and lower back pain. He
recommended that plaintiff undergo an L5-S1 pipeline diskectomy. Tr. 229-234.
Emergency room exams also revealed musculature tenderness in the lumbar spine, midline
tenderness along the lower thoracic and upper lumbar, tenderness along the lower lumber paraspinous
muscle, pain in his lower right side radiating down his right leg, and a decreased range of motion in his
lumbar spine. Tr. 151-153, 278-283, 309-315, 318-325, 353-359, 510-513, 544-558. X-rays of his
lumbar spine performed in January 2006 and March 2006 showed a compression fracture at the T12.
Tr. 231, 349. Further, x-rays taken in March 2009 continued to show an anterior wedge compression
fracture of the T12 vertebral body. Tr. 668-678.
The record reveals that Plaintiff did not have insurance or the money to pay for these treatments. Dr.
Ross gave him medication samples on numerous occasions, due to his financial constraints. Plaintiff also stated
that he did not undergo surgery because he could not afford to do so and had been denied Medicaid. Tome v.
Schweiker, 724 F.2d 711, 714 (8th Cir. 1984) (holding Plaintiff’s lack of financial resources to pay for
hypertension and headache medicine justified failure to follow a treatment plan). Further, there is no evidence
to indicate that either mode of treatment would have been effective at eliminating Plaintiff’s pain. See Ludden v.
Bowen, 888 F.2d 1246, 1249 (8th Cir. 1989) (holding failure to follow a treatment mode suggested with only
speculative expectation of medical improvement is not a valid reason for disallowing benefits).
This matter was initially remanded to the ALJ with directions that he consider additional medical
records from Dr. Ross that had been presented to the Appeals Council. Although it does appear that the
ALJ considered some of Dr. Ross’s records, it does not appear that he considered all of the records. This
is evidenced by the fact that he began his discussion of Dr. Ross’ assessments with the following phrase,
“Despite the paucity of objective medical findings in Dr. Ross’ medical records and in the records from
St. Edward Mercy Medical Center and Summit Medical Center.” To the contrary, the overwhelming
majority of the records presented indicate that Plaintiff was suffering from a severe impairment related
to his back that resulted in some significant impairment in functioning.
The ALJ also contends that Dr. Ross’ 2006 assessment mentions no objective medical findings
to support it. However, Dr. Ross specifically noted that his RFC assessment was based on his treatment
history with Plaintiff, as well as x-rays and MRI’s revealing abnormalities. And, although the ALJ failed
to mention it, Dr. Ross also completed an RFC assessment in 2010, in which he again stated that his
opinion was supported by the findings of MRIs of Plaintiff’s lumbar and cervical spine showing
abnormalities that would make it difficult for him to perform activities of daily living. Dr. Ross also
indicated that exposure to temperature fluctuations, noise, vibration, humidity, and wetness could affect
Plaintiff’s pain level. Given that the MRI’s and x-rays of Plaintiff’s lumbar spine, as well as the many
examinations of Plaintiff have revealed some significant problems, we believe remand is necessary to
allow the ALJ to properly consider Dr. Ross’ assessments and all of the medical records in evidence.
We are aware that the record contains a few medical records suggesting that Plaintiff was
seeking additional or higher dosages of pain medication. And, we note the ALJ’s attempts to dismiss
Plaintiff’s pain on this basis. However, given that the record does indicate that Plaintiff was suffering
from a significant degree of pain and limitation, as well as the fact that he was being prescribed opiate
pain medication on a regular basis, we believe more information is necessary before it can be determined
that Plaintiff was “drug seeking.” It is possible that Plaintiff had developed a physical dependence on
the medications prescribed to treat his chronic pain.3 As this is common among chronic pain sufferers,
if the ALJ still finds this issue to be of significance on remand, he should re-contact Dr. Ross to develop
the record in this regard. See Johnson v. Astrue, 627 F.3d 316, 320 (8th Cir. 2010) (holding that an ALJ
should recontact a treating or consulting physician if a critical issue is undeveloped). At current, Dr.
Ross’ assessments make no mention of drug abuse or dependence.
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 15th day of February 2012.
/s/ J. Marschewski
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
“Long term use of opioids results in physical dependence, which is different from addiction, but does
not usually lead to addiction.” American Academy of Pain Medicine, American Academy of Pain Medicine
Statement on Appropriate Use of Opiods, http://www.painmed.org/Workarea/DownloadAsset.aspx?id=3266
(last visited February 15, 2012). “Physical dependence is a normal adaptive state, the expected result of using
pain medicines (as well as other medications) for a long time.” Id. It is also common for people who have been
prescribed long term opioids to develop a tolerance to their pain medication and to need higher doses to achieve
the same level of pain relief. Brunilda Nazario, M.D., Pain Management: Drug Tolerance and Addiction,
http://www.webmd.com/pain-management/guide/drug-toleranceaddiction (last visited February 15, 2012).
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