Ward v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION Signed by Honorable James R. Marschewski on June 14, 2012. (sh)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
DEBORAH D. WARD

PLAINTIFF

v.

CASE NO.

2:11-CV-02033

MICHAEL J. ASTRUE, Commissioner
of Social Security Administration

DEFENDANT

MEMORANDUM OPINION

Plaintiff 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 and disability insurance benefits (DIB) and supplemental security income
(“SSI”) under Title II of the Social Security Act (Act), 42 U.S.C. § 423(d)(1)(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:
It appears that the Plaintiff initially filed for DIB and SSI on March 17, 2005 claiming an

onset date of August 1, 2004 (T. 44). A hearing was held on August 23, 2007 (Id.) and the ALJ
determined that the Plaintiff did have severe impairments of fibromyalgia, degenerative changes
in her lumbar spine, osteoarthritis, pain disorder associated with both psychological factors and a
general medical condition, chronic obstructive pulmonary disease, obstructive sleep apnea and
hypertension. (T. 46). On January 14, 2008, after determining the Plaintiff RFC, the ALJ

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determined that the Plaintiff was not disabled. (T. 57). The Plaintiff did not appeal the ALJ
determination.
The plaintiff filed her current application for DIB on April 24, 2008 (T. 115), alleging an
onset date of October 15, 2004 (T. 115 & 141), due to plaintiff’s fibromyalgia, chronic
obstructive pulmonary disease, back pain, depression, restless leg syndrome, and high cholesterol
(T. 146). Plaintiff’s applications were denied initially and on reconsideration. Plaintiff then
requested an administrative hearing, which was held on May 27, 2009. Plaintiff was present and
represented by counsel.
At the hearing the Plaintiff moved to amend her onset date to January 15, 2008 (T. 17)
because that was the date of a prior decision by an ALJ that the Plaintiff was not disabled. At the
time of the administrative hearing, plaintiff was 48 years of age and possessed a GED (T. 153).
The Plaintiff had past relevant work (“PRW”) experience as a line worker (T. 157 ).
On October 21, 2009, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s fibromyalgia, chronic obstructive pulmonary disease, back pain, depression,
restless leg syndrome, and high cholesterol did not meet or equal any Appendix 1 listing. T. 67.
The ALJ found that plaintiff maintained the residual functional capacity (“RFC”) to perform light
work, except she had an inability to engage in more than occasional overhead reaching T. 67.
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 the court finds it possible “to draw two inconsistent positions from the
evidence, and one of those positions represents the Secretary’s findings, the court 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 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. Titus v. Sullivan, 4 F.3d 590, 594 (8th Cir. 1993).
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 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
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relevant work; and, (5) whether the claimant is able to perform other work in the national
economy given his 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).
The ALJ noted that the Plaintiff had sufficient coverage to remain insured through
December 31, 2009 and that she had to establish her disability on or before that date. (T. 65).
This date is not in dispute. The Plaintiff made an oral motion at the hearing to amend the onset
date to January 15, 2008 (T. 17) because the Plaintiff had previously been determined on that
date not to be disabled. (T. 57). The Plaintiff must establish that she became disabled between
January 15, 2008 and December 31, 2009.
III.

Discussion:

A. RFC
After determining that the Plaintiff had severe impairments of fibromyalgia, chronic
obstructive pulmonary disease, back pain, depression, restless leg syndrome, and high cholesterol
the ALJ determined that the Plaintiff had the residual functional capacity to perform light work
except that she could not engage in more than occasional overhead reaching. (T. 67)
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §
404.1545(a)(1). It is defined as the individual’s maximum remaining ability to do sustained
work activity in an ordinary work setting “on a regular and continuing basis.” 20 C.F.R. §§
404.1545 and 416.945; Social Security Ruling (SSR) 96-8p (1996). It is assessed using all
relevant evidence in the record. Id. This includes medical records, observations of treating
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physicians and others, and the claimant’s own descriptions of her limitations. Guilliams v.
Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th
Cir. 2004). 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).
Nevertheless, in evaluating a claimant's RFC, an ALJ is not limited to considering
medical evidence exclusively. Cox v. Astrue, 495 F. 3d 614 at 619 citing Lauer v. Apfel, 245
F.3d 700 at 704; Dykes v. Apfel, 223 F.3d 865, 866 (8th Cir.2000) (per curiam) (“To the extent
[claimant] is arguing that residual functional capacity may be proved only by medical evidence,
we disagree.”). Even though the RFC assessment draws from medical sources for support, it is
ultimately an administrative determination reserved to the Commissioner.*620 20 C.F.R. §§
416.927(e)(2), 416.946 (2006).
1. Subjective Complaints
The Plaintiff first contends that the ALJ committed error because the did not properly
evaluate the Plaintiff’s subjective complaints. (ECF No. 8, p. 11).
The ALJ must consider several factors when evaluating a claimant's subjective
complaints of pain, including claimant's prior work record, observations by third parties, and
observations of treating and examining physicians relating to 1) the claimant's daily activities; 2)
the duration, frequency, and intensity of pain; 3) precipitating and aggravating factors; 4) dosage,
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effectiveness and side effects of medication; and 5) functional restrictions. Casey v Astrue, 503
F.3d at 695 (8th Cir.2007) (citing Polaski v. Heckler, 729 F.2d 1320, 1322 (8th Cir.1984). The
ALJ may discount subjective complaints when they are inconsistent with the evidence as a
whole. Id. (citing Polaski, 739 F.2d at 1322). “The ALJ is not required to discuss each Polaski
factor as long as the analytical framework is recognized and considered.” Tucker v. Barnhart,
363 F.3d 781, 783 (8th Cir.2004).
a. Daily Activities
The ALJ stated that the Plaintiff “testified that she is able to mop and dust at home,
despite her pain and fatigue she cares for her dogs, crochets, and tries to do other "light
housework" at home. She alleged that she has difficulty lifting her arms, which I do find to be
credible.” (T. 68). This seems to be the only remarks the ALJ made concerning the Plaintiff’s
activities of daily living. A claimant's ability to perform household chores does not necessarily
prove that claimant capable of full-time employment.” See Ekeland v. Bowen, 899 F.2d 719, 722
(8th Cir.1990) (citing Easter v. Bowen, 867 F.2d 1128, 1130 (8th Cir.1989)); Dixon v. Barnhart
324 F.3d 997, 1002 (C.A.8 (Ark.),2003). The Plaintiff stated on her Disability Report that she
had help with the dog from David Cotner (T. 134), and that while she could do light housework it
took between 1-3 hours and that she would rest in between. (T. 135). While Plaintiff did testify
that she sometimes tried to dust or mop, she stated that the activity tired her and that she had to
sit down and rest afterwards. (Tr. 20). Plaintiff also admitted to crocheting, as the ALJ
discussed, but stated that she could only do it for about 20 minutes at a time because it caused her
arm to swell, and that she had been working on the same afghan for two years. (Tr. 26).

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b. Duration, Intensity and Frequency of Pain
The Plaintiff stated on her Function Report that her pain “hurt 24 hours a day” (T. 140)
and that it kept her awake at night (T. 134). Plaintiff explained that her pain kept her awake,
forcing her to be up and down all night and causing her to be tired during the day and have no
energy. (Tr. 22). Plaintiff explained that she was tired and sore 24 hours a day, and that it took
her considerably longer, sometimes up to two hours, to complete a task typically requiring only
15 minutes for an average healthy person. (Tr. 18). The ALJ found that “Even the diagnoses of
fibromyalgia contained in the record are based on history alone, with no evidence of trigger point
testing.” (T. 68).
This conclusion by the ALJ does not seem to be supported by the record. Plaintiff
presented to Redbird Smith Health Clinic on March 6, 2009 complaining of pain, requesting
medication other than the Darvocet she had been prescribed because she stated she needed
something stronger. (Tr. 266). On April 8, 2009 the Plaintiff was diagnosed with “multiple
tender points fibromyalgia” by her treating physician, Dr. Paula McQueen, D.O. with the
Hastings Indian Hospital (T. 352). Dr. McQueen’s assessment was fibromyalgia and she
prescribed darvocet. (Id.). It is clear that Dr. McQueen did perform tender point testing on the
Plaintiff and that was how she made her diagnosis. The body has 18 sites that are possible tender
points. For fibromyalgia diagnosis a person must have 11 or more tender points. For a point to be
“tender,” the patient must feel pain when pressure is put on the site. People who have
fibromyalgia may feel pain at other sites, too, but those 18 sites on the body are used for
diagnosis. (See www.womenshealth.gov, viewed June 14, 2012).
The opinion of a treating physician is accorded special deference and will be granted
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controlling weight when well-supported 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). The court notes the following dialogue in the
hearing:
Atty: Yes, your Honor. Dr. Ortese (phonetic) at Red Bird Clinic
(phonetic) said that she would fill out one of hour medical source
statement forms.
ALJ: Which you know how much I love them. Could you try to
get one of the more mainstream. (T. 11)
It appears that the ALJ discounted the treating physician’s diagnosis because of where
they were practicing medicine and not based upon medical factors within the file.
c. Medications.
On January 15, 2008 the medical records reflect a visit to PCC for insomnia and LBP and
Plaintiff was on Darvocet –100 and Restoril (T. 292). On July 3, 2008 the PCC records reflect
Plaintiff visited for Depression, Insomnia, right leg pain, LBP and RLS. Plaintiff was on
Darvocet and Temazepam 1 (T. 288). On January 18, 2010 went to the HIH complaining of pain
in her back and shoulders and noted that she had been “keeping infant granddaughter and it has
caused increased pain from lifting/holding her” (T. 367) and Dr. McQueen prescribed Darvocet
2

100 #60 bid rf x2 (T. 369). 3 On January 25, 2010 the Plaintiff called the HIH and requested

1

Temazepam is in a group of drugs called benzodiazepines (ben-zoe-dye-AZE-eh-peens). It affects
chemicals in the brain that may become unbalanced and cause sleep problems (insomnia). Temazepam is used to
treat insomnia symptoms, such as trouble falling or staying asleep.
2

Darvocet-N 100 (acetaminophen and propoxyphene) Acetaminophen is a less potent pain reliever and a
fever reducer that increases the effects of propoxyphene. The combination of acetaminophen and propoxyphene is
used to relieve mild to moderate pain with or without fever.
3

Darvocet (Acetaminophen and propoxyphene) was withdrawn from the U.S. market in November 2010.
See www.drugs.com/mtm/darvocet

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medication to help her sleep and Dr. McQueen prescribed Restoril4 15 mg.
It does not appear that the ALJ discussed the Plaintiff’s medications other than to note
that she felt the Plaintiff had “some improvement” with the prescription of Prozac. (T. 69)
2. RFC evaluation
There does not appear to be any RFC assessment in the record and the ALJ stated that she
formed her RFC assessment in the “absence of supporting medical opinion evidence”. (Tr. 69).
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). The ALJ should obtain medical evidence that addresses the claimant's ability to function
in the workplace. Lauer v. Apfel, 245 F.3d 700 at 704 (8th Cir.2001). “ ‘An administrative law
judge may not draw upon his own inferences from medical reports.’ ” Nevland v. Apfel, 204 F.3d
853, 858 (8th Cir.2000) (quoting Lund v. Weinberger, 520 F.2d 782, 785 (8th Cir.1975)).
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)
The plaintiff has the burden of producing documents to support his or her claimed RFC.
See Cox, 160 F.3d at 1206; 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). In this instance the
Plaintiff attempted to obtain a medical source statement from her treating physicians without
success. (ECF No. 8-1). The ALJ has a duty to fully and fairly develop the record. See Frankl v.

4

Restoril is used to treat insomnia symptoms and belongs to a group of drugs called benzodiazepines
(ben-zoe-dye-AZE -eh-peens). It affects chemicals in the brain that may become unbalanced and cause sleep
problems (insomnia). See www.drugs.com Viewed April 27, 2012.

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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). If a treating physician has not issued an opinion
which can be adequately related to the disability standard, the ALJ is obligated to address a
precise inquiry to the physician so as to clarify the record. See Vaughn v. Heckler, 741 F.2d 177,
179 (8th Cir. 1984). 245 F.3d 700, 704 (8th Cir. 2001).
Also, in this particular case one of the Plaintiff’s treating physicians diagnosed the
Plaintiff with fibromyalgia which the ALJ discounted. The court believes that remand is
necessary to allow the ALJ addressed interrogatories to the treating physician to see if she had
properly utilized tender points in her diagnosis and to secure an RFC from a medical source.
V.

Conclusion:
Accordingly, the court finds that the ALJ’s decision is not supported by substantial

evidence, and therefore, the denial of benefits to the Plaintiff should be reversed and this matter
should be remanded to the Commissioner for further consideration.

Dated this 14th day of June 2012.

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

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