Gryner v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on November 19, 2012. (rw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
ANGELA D. GRYNER

PLAINTIFF

v.

CASE NO.

11-2221

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:
The plaintiff filed her applications for DIB and SSI on March 19, 2009, alleging an onset

date of January 8, 2007, due to plaintiff’s spine and nerve damage (T. 188). Plaintiff’s
applications were denied initially and on reconsideration. Plaintiff then requested an
administrative hearing, which was held on January 6, 2010. Plaintiff was present and represented
by counsel.
At the time of the administrative hearing, plaintiff was 34 years of age and possessed a
High School Education with three years of college (T. 195). The Plaintiff had past relevant
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work (“PRW”) experience as a Billing Clerk, Store Clerk, Cook and various other trades (T.
189).
On April 16, 2010, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s back disorder post cervical discectomy and affective disorder (anxiety) did not
meet or equal any Appendix 1 listing. T. 55. The ALJ found that plaintiff maintained the
residual functional capacity (“RFC”) to perform light work with additional restrictions T. 56.
With the assistance of a vocational expert, the ALJ then determined Plaintiff could perform the
requirements of the representative occupations of School Crossing Guard, School Bus Monitor,
Traffic Checker, and Maid. T. 61.
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
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).
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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. 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:

A. Relevant Time Period
In order to receive disability insurance benefits, an applicant must establish that she was
disabled before the expiration of her insured status. See 42 U.S.C. §§ 416(I), 423(c); Stephens v.
Shalala, 46 F.3d 37, 39 (8th Cir.1995) (per curiam) (citing Battles v. Sullivan, 902 F.2d 657, 659
(8th Cir.1990)). Evidence of a disability subsequent to the expiration of one's insured status can
be relevant, however, in helping to elucidate a medical condition during the time for which
benefits might be rewarded. See Fowler v. Bowen, 866 F.2d 249, 252 (8th Cir.1989) ( Fowler );
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Martonik v. Heckler, 773 F.2d 236, 240-41 (8th Cir.1985) ( Martonik ).
There is no insured status requirement, however, for SSI benefits. In order to qualify for
SSI benefits on the basis of disability under section 1602 for the Act, 42 U.S.C. § 1381a, a
claimant must be a “disabled individual” and meet certain need requirements. The definition of
“disabled individual” found in section 1614(a), 42 U.S.C. § 1382c(a), is virtually identical to the
section 223 definition quoted above. Fillou v. Heckler 622 F.Supp. 346, 347 (D.C.Ill.,1985)
Plaintiff was insured for DIB until September 30, 2007 (Tr. 52). Plaintiff filed her SSI
application on March 4, 2009 (Tr. 52, 169-71). SSI benefits cannot be recovered retroactively. 20
C.F.R. § 416.335. Thus, the time period at issue is from March 4, 2009, through April 16, 2010,
the date of the ALJ’s decision.
B. RFC
The ALJ found that Plaintiff retains the RFC to perform light work, can occasionally
climb, balance, stoop, kneel, crouch, and crawl, can occasionally reach overhead, can frequently
reach, handle, and finger with her left upper (non-dominant) extremity, can understand,
remember, and carry out simple, routine, and repetitive tasks, can respond appropriately to
supervisors, co-workers, and usual work situations and can have occasional contact with the
general public. (Tr. 56).
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).
1. Non-Examining Opinion
Of particular concern to the court is the ALJ determination of the Plaintiff’s RFC. A
Physical RFC was provided by DDS Dr. Lucy Sauer on April 24, 2009 which found that the
Plaintiff could lift 20 pounds occasionally, 10 pounds frequently and that she could stand and/or
walk and sit for 6 hours in an 8 hour workday, and had no limitations in her ability to push and/or
pull (T. 454). Dr. Sauer found no postural limitations (T. 455) and Limited Manipulative
Limitations in the Plaintiff’s ability to reach in all directions (T. 456). Dr. Sauer notes that the
Plaintiff had a “fusion, no complications” and that there was insufficient evidence to rate the
claim as of the date last insured. (T. 460). Dr. Bill Payne reviewed and affirmed Dr. Sauer’s
opinion on June 19, 2009 (T. 468). 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).
2. Treating Physicians:
In this case an MRI of the Plaintiff’s neck in August 2004 showed a “focal disk
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protrusion centrally and slightly toward the left at level of C5-6, with possible encroachment on
the nerve root at this level. (T. 751). Another MRI was performed in December 2008 showed a
“1 cm left paracentral disc extrusion involving the C5/6 level. (T. 514). When Dr. Queeney
examined this MRI in January 2009 he commented that it showed a “large herniated disc off the
left side at C5-6 clearly causing compression of the neural elements” (T. 441). Dr. Queeney
explained to the Plaintiff that his proposed surgery had substantial risk associated with it
including that “she probably already has had permanent nerve damage and this may not recover”
and that the surgery may completely relieve her pain. The Plaintiff was willing to accept the risk
and proceed with the surgery (Id.).
On January 27, 2009 Dr. Queeney performed an anterior cervical diskectomy with fusion
for chronic neck and upper extremity pain. During the procedure he noted that there was
“significant spondylosis dorsally” and a “very large herniated disc” which was removed. Dr.
Queeney noted that he explored the spinal canal and “no further nerve root compression was
identified nor any further herniated discs”. Dr. Queeney did not see the Plaintiff again until April
2009 noting that she had “missed or canceled all of her postop appointments until today” (T.
447). Dr. Queeney noted that the plates and screws were in good position and she had signs of a
good fusion. While the Plaintiff still complained of pain his only prescription for her was
physical therapy and no follow up appointments were scheduled.
Soon after her cervical fusion the Plaintiff still complained of neck pain and saw Dr.
Hoang in April 2009 who prescribed Loretab for pain (T. 465) and Diazapam for anxiety (T.
463). The Plaintiff represented to Dr. Hoang that her “deep neck pain improved” but that she still
had pain. (T. 465).
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It appears that Dr. Ronald Myers began to treat the Plaintiff in July 2009 (T. 509) and
through December 2009 (T. 502) although on September 3, 2009 the Dr. records record a New
Patient Visit (T. 508). In January 2010 Dr. Myers issued a MSS stating that the Plaintiff could
only sit, stand and walk for us to 4 hours in a 8 hour work day, had difficulty with the use of her
left hand, and could never crawl or reach above her head and could only occasionally climb. (T.
501). Dr. Myers also found that the Plaintiff would need to take unscheduled breaks and would
miss more than four days work per month. (T. 502). Generally, an ALJ is obliged to give
controlling weight to a treating physician's medical opinions that are supported by the record. See
Randolph v. Barnhart, 386 F.3d 835, 839 (8th Cir.2004); 20 C.F.R. § 404.1527(d)(2). However,
it is proper for the ALJ to decline to give weight to the vague, conclusory, and unsupported
opinions of a treating physician. See Brown v. Astrue, 611 F.3d 941, 952 (8th Cir. 2010).
Dr. Myers opinions do not seem supported by his own medical records and he makes no
attempt to substantiate his opinions in his MSS. It appears to the court that the ALJ was correct
to discount his opinion but his opinion certainly had as much weight as the two opinions of the
DSS doctors who never even saw the plaintiff and more importantly could not give any opinion
concerning her condition prior to her surgery.
3. Development of the Record:
Dr. Queeney was the Plaintiff treating physician. A treating physician’s opinion “is
entitled to substantial weight ‘unless it is unsupported by medically acceptable clinical or
diagnostic data.’” See Perks v. Astrue, 687 F.3d at 1093-94 (quoting Kirby v. Sullivan, 923 F.2d
1323, 1328 (8th Cir. 1991)). In addition Dr. Queeney is an orthopedic surgeon who performed
surgery on the Plaintiff. Opinions of specialists on issues within their areas of expertise are
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“generally” entitled to more weight than the opinions of non-specialists. See 20 C.F.R. §§
404.1527(d)(5), 416.927(d)(5). Guilliams v. Barnhart 393 F.3d 798, 803 (C.A.8 (Mo.),2005), 20
C.F.R. § 404.1527.
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). There is no bright
line rule indicating when the Commissioner has or has not adequately developed the record;
rather, such an assessment is made on a case-by-case basis. Battles v. Shalala, 36 F.3d 43 at 45
(C.A.8 (Ark.), 1994)
In this case neither the Plaintiff’s attorney nor the ALJ sought the opinion of Dr. Queeney
concerning the ability of the Plaintiff to perform work related activity prior to or after her
surgery. The ALJ has a duty to fully and fairly develop the record. See Frankl v. 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). This duty exist “even if ... the claimant is represented
by counsel.” Boyd v. Sullivan, 960 F.2d 733, 736 (8th Cir.1992) (quoting Warner v. Heckler, 722
F.2d 428, 431 (8th Cir.1983)). Dr. Queeney’s opinion is important because his surgical notes of
January 2009 reveal that the Plaintiff had “marked instability of the C5-6 segment as well as very
large herniated disc off to the left side of the C5-6.” (T. 538). The surgical note confirmed an
MRI that was performed on the Plaintiff in August 2004 which found a “[F]ocal disk protrusion
centrally and slightly toward the left at the level of C5-6, with possible encroachment on the
nerve root at this level.” (T. 751). It seems imperative to the court to understand what impact
this condition had upon the Plaintiff’s ability to perform work related activity prior to the
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surgery. Likewise, it is imperative for Dr. Queeney to express his opinion concerning the
Plaintiff’s ability to perform work related activities after his surgery.
The court believes that remand is necessary to allow the ALJ to direct interrogatories to
Dr. Queeney to state his opinion on the Plaintiff’s ability to perform work related activity prior to
and subsequent to his surgery.
IV.

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 November 19, 2012.

/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF U. S. MAGISTRATE JUDGE

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