Johnson v. Social Security Administration Commissioner

Filing 8

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on October 28, 2013. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
ELVIRA JOHNSON
v.

PLAINTIFF
Civil No. 12-2193

CAROLYN W. COLVIN,1 Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Elvira Johnson, 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 her claim
for a period of disability, disability insurance benefits (“DIB”), 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).
I.

Procedural Background:
The Plaintiff filed her application for DIB and SSI on April 14, 2009. (Tr. 141). The alleged

onset date of symptoms was listed as February 8, 2006. (Tr. 141), but was later amended to May 23,
2008 (Tr. 36). The disability claim was based on allegations of chronic asthma, back problems,
depression and anxiety, COPD, chronic bronchitis, migraines, hormone problems and sciatic nerve
damage. (Tr. 163). Plaintiff’s application was denied at the initial and reconsideration levels. (Tr. 8494). Plaintiff requested an administrative hearing, which was held on August 4, 2010. (Tr. 34-76).
Plaintiff was present to testify and was represented by counsel. (Tr. 36). The ALJ also heard testimony
from James Armstrong, M.D. and Jim Spragins, a vocational expert (“VE”). (Tr. 35).

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Carolyn W. Colvin became the Social Security Commissioner on February 14, 2013. Pursuant to Rule
25(d)(1) of the Federal Rules of Civil Procedure, Carolyn W. Colvin has been subsituted for Commissioner
Michael J. Astrue as the dedendant in this suit.

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At the time of the administrative hearing, Plaintiff was 38 years old (Tr. 159), and possessed a
GED. (Tr. 169). The Plaintiff had past relevant work experience (“PRW”) as a certified nurse’s aid,
forklift/floorlift operator, and lineworker in a poultry plant. (Tr. 164)
On November 5, 2010, the ALJ concluded that, although Plaintiff’s degenerative disc disease,
mild obstructive lung disease, dysthmyia and mood disorder were severe impairments, they did not meet
or equal one of the listed impairments in 20 CFR Part 404. (Tr. 15-16). The ALJ found that Plaintiff
maintained the residual functional capacity to perform light work, with the following limitations: she
cannot climb ladders/scaffolds/ropes; she must avoid extremes of cold, fumes, gases and odors; she can
do routine work involving things but not people. (Tr. 16). With the assistance of the VE, the ALJ
determined that the Plaintiff could perform such representative occupations as production line assembler,
sewing machine operator, and motel housekeeper. (Tr. 19).
Plaintiff requested a review by the Appeals Council on December 30, 2010. The Appeals
Council denied the appeal on June 28, 2012.
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

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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 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).
III.

Discussion:
Plaintiff raises two issues on appeal: 1) the ALJ’s credibility finding is contrary to SSR 96-7p;

and 2) the ALJ erred in evaluating the medical opinion evidence. (Pls.’ Br. 13.)

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A.

ALJ Assessment of Plaintiff Credibility

In determining a claimant's RFC, “ ‘the ALJ must first evaluate the claimant's credibility.’ ”
Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir.2007) (quoting Pearsall v. Massanari, 274 F.3d 1211,
1217 (8th Cir.2002)). In discrediting a claimant's subjective complaints, an ALJ is required to consider
all available evidence on the record as a whole and is required to make an express credibility
determination. Lowe v. Apfel, 226 F.3d 969, 971 (8th Cir. 2000) 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, effectiveness and side effects of medication; and 5) functional
restrictions. Casey, 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 only 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).
1. Side Effects of Medication
The ALJ must properly consider the claimant’s testimony regarding significant medication side
effects. Porch v. Chater, 115 F.3d 567, 572 (8th Cir. 1997). This requires an express examination of the
dosage, effectiveness, and side effects of all medication. Polaski, 739 F. 2d at 1322. Failure to include
medication side effects in the hypothetical to the VE, “at a minimum,” requires the case to be remanded.
Mitchell v. Sullivan, 925 F.2d 247, 250 (8th Cir. 1991). Likewise, ignoring the VE’s testimony
concerning medication side effects is troubling. Porch, 115 F.2d at 572.

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In this case, the Plaintiff testified that she takes Norco2 four times a day, Neurontin3 three times
a day, and Xanax.4 (Tr. 56.) She testified that these drugs made her drowsy. (Tr. 60.) This testimony is
supported by the drug side effects listed for each of these drugs in the Physician’s Desk Reference.5 Her
medical records list a number of other drugs which also include fatigue or drowsiness as side effects,
including Lexapro and Clonidine, but these were not referenced in the hearing. (Tr. 474.) The ALJ made
also made no note of the possible cumulative and synergistic side effects that often occur when antianxiety drugs, narcotic pain medications, and muscle relaxers are taken in combination.
The ALJ posed four hypotheticals to the VE. (Tr. 70-75.) Only one of these hypotheticals
included drowsiness due to medication side effects. (Tr. 70-75.) For the hypothetical that did mention
side effects, the ALJ asked if someone who could not put in a full work week due to being tired and
fatigued, who had side effects from medication and therefore could not concentrate or focus, could hold
any job in the US economy. (Tr. 74.) The VE confirmed that there was no job that they could hold. (Tr.
74.) Plaintiff’s attorney asked if someone who didn’t require unscheduled breaks, but was limited to less
than eight hours in any combination would be precluded from full time employment at any exertional
level.(Tr. 75.) The VE agreed that was correct. (Tr. 75.)
Despite the Plaintiff’s and VE’s testimony, however, the ALJ did not account for medication side
effects in his RFC assessment. Accordingly, remand is necessary to allow the ALJ to 1) expressly

2

Norco is an opioid analgesic indicated for relief of moderate to moderately severe pain.(accessed Oct.
21, 2013) http://www.pdr.net/drug-summary/norco-5-325?druglabelid=2132&id=1530.
3

Neurontin is a gaba analog used for seizure control and postherpetic pain management. (accessed Oct.
21, 2013) http://www.pdr.net/drug-summary/neurontin?druglabelid=2477&id=1034.
4

Xanax is a benzodiazepam drug used for the treatment of anxiety. (accessed Oct. 21, 2013)
http://www.pdr.net/drug-summary/xanax?druglabelid=1873&id=1159.
5

Norco side effects include lightheadedness, dizziness, and sedation. Neurontin side effects include
dizziness, somnolence, and fatigue. Xanax side effects include drowsiness, lightheadedness and depression. See
PDR, supra notes 2-4.

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ascertain which drugs Plaintiff is currently taking, and 2) expressly consider the effects of Plaintiff’s
medication side effects - individually, cumulatively, and synergistically - in the RFC assessment.
2. Failure to Quit Smoking
“Impairments that are controllable or amenable to treatment do not support a finding of
disability, and failure to follow a prescribed course of treatment without good reason can be a ground
for denying an application for benefits.” Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998). However,
the treatment in question must be reasonably related to the impairment being plead for disability benefits.
Id.; Mouser v. Astrue, 545 F.3d 634 (8th Cir. 2008). While smoking cessation is related to pulmonary
impairments and general health, cessation has not been shown to affect musculoskeletal impairments,
Kelley, 133 F.3d at 589, or migraines. Giles v. Barnhart, 368 F. Supp 2d 924, 945 (N.D. Iowa 2005).
Further, significant reduction in smoking activity may be sufficient to show that the claimant is trying
to follow doctor’s orders. O’Donnell v. Barnhart, 318 F.3d 811, (8th Cir. 2003) (claimant’s failure to
completely stop smoking did not render her complaints of pain non-credible when she had reduced her
smoking behavior by seventy-five percent.); 20 C.F.R. § 404.1540 (initial progress in abstinence from
drug or alcohol use “may include significant reduction in use.”).
In this case, the ALJ placed significant weight on the Plaintiff being a long-time smoker with
a two-pack-a-day habit to discount her credibility . (Tr. 18.) There is no dispute that smoking is related
to the Plaintiff’s COPD, bronchitis, and asthma. But it is not related to her musculoskeletal complaints
or migraines. Additionally, Plaintiff also testified that she had reduced her smoking from two-three
packs a day to two-three cigarettes as day.(Tr. 64.) Neither of these points were discussed in the ALJ’s
decision. The ALJ is directed to further develop the record as to this point.
3. Doctor-Shopping/Drug-Seeking Behavior
A claimant's misuse of medications is a valid factor in an ALJ's credibility determinations.
Anderson v. Barnhart, 344 F.3d 809, 815 (8th Cir. 2003). It is well-established in the Eighth Circuit that

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“drug-seeking” behavior may be used to discredit a claimant’s subjective allegations of disabling pain.
Anderson v. Shalala, 51 F.3d 777, 780 (8th Cir.1995) However, in cases where such behavior has been
upheld as a valid factor to discredit claimant testimony, there is generally a clear pattern of such behavior
documented in the medical records over a period of time, often by more than one treating physician. See
e.g. Slater v. Barnhart, 372 F.3d 956, 956 (8th Cir. 2004) (“the record is filled with evidence of drug
abuse, alcohol abuse, and drug-seeking behavior, including lying and manipulating others to obtain
prescription drugs, self-medicating and failing to follow recommended treatments, drinking six bottles
of beer and a bottle of wine daily, and overdosing.”); Anderson v. Barnhart, 344 F. 3d at 815 (treating
psychologist noted “[t]here is a significant possibility of past/present problems with substance
abuse...and Anderson’s extensive present use of (prescribed) pain medications.”); Anderson v. Shalala,
51 F. 3d at 779 (over a one-year period claimant received so many injections of steroids and pain killers
that “her physicians noted that she displayed drug-seeking behavior and has a possible substance abuse
problem.”).
In this case, the ALJ noted that, as part of her history of back pain, Dr. Cotner had turned the
Plaintiff away as a patient and refused to further prescribe pain medication because she was “doctorshopping” between himself and Dr. Noonan for pain medication. (Tr. 17.) A close examination of the
medical records indicates that this behavior was only noted one time in the record at Exhibit B1F and
referenced an approximately two-month period in 2005. The notation certainly raises a legitimate
concern that drug-seeking behavior could be occurring. However, without further development of the
record by the ALJ it is not clear that one isolated incident over several years of treatment rises to the
level necessary to discredit claimant’s testimony concerning subjective pain.
B.

Evaluation of Medical Opinion Evidence

Plaintiff argues that the ALJ erred 1) when he did not consider or discuss Dr. Dunaway’s
Lumbar Spine RFC and 2) when the ALJ’s RFC determination was identical to Dr. Armstrong’s, who

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could only open one page of the medical record and had no knowledge of Plaintiff’s back issues. (Tr.
44)
“It is the ALJ’s function to resolve conflicts among ‘the various treating and examining
physicians.’”Bentley v. Shalala, 52 F.3d 784, 785 (8th Cir. 1995). “[A] treating physician's opinion will
be granted ‘controlling weight,’ provided it is ‘well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the]
record.’" Prosch v. Apfel, 201 F.3d 1010, 1012-13 (8th Cir.2000)(citing 20 C.F.R. § 404.1527(d)(2)).
However, if the treating physician’s opinion is conclusory or inconsistent with the medical records, the
ALJ is free to discount it in favor of one from a consulting physician. Metz v. Shalala, 49 F.3d 374, 377
(8th Cir. 1995). The regulations also encourage the ALJ to give more weight to a specialist when they
are opining about a medical issue related to the their area of speciality than a non-specialist. Id. at 378;
Brown v. Astrue, 611 F.3d 941, 953 (8th Cir. 2010).
“Whether the ALJ grants a treating physician's opinion substantial or little weight, the
regulations provide that the ALJ must ‘always give good reasons’ for the particular weight given to a
treating physician's evaluation.” Prosch, 201 F.3d at 1013 (citing
20 C.F.R § 404.1527(2); SSR 96–2p.) Those good reasons must include a discussion of the following
factors: 1) length of treatment relationship and frequency of examination; 2) nature and extent of
treatment relationship; 3) the quality of the relevant evidence used to support the opinion; 4) the
consistency of the treating physician’s opinion with the rest of the record; 5) if the treating physician is
a specialist and if he or she is opining in the area of his or her specialty; and 6) other relevant factors,
such as the physician’s familiarity with the evidentiary requirements of the disability program. 20 C.F.R.
§§ 404.1527(c)(2)(i-ii), (c)(3)-(6); See also Philips v. Colvin, 721 F.3d 623, 630 (8th Cir. 2013).

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In this case, there are two complete physical RFC statements, the Lumbar RFC by treating
physician Dr. Dunaway (Tr. 465), and one by Doctors Donahue and Sauer. (Tr. 424-31). Dr. Armstrong
opined an RFC at the final hearing, but did so with knowledge of only one page of the medical record
due to a technical issue. (Tr. 44.)
In his Lumbar RFC, Dr. Dunaway stated that Plaintiff could lift less than ten pounds
occassionally, ten pounds rarely; could sit for thirty minutes with breaks every two hours; could stand
for fifteen-twenty minutes with breaks less than two hours.(Tr. 461-65.) He noted a reduced range of
motion, abnormal gait, and positive straight leg raise tests. (Tr. 464.) He found that the Plaintiff should
only rarely twist, and should never stoop, crouch, or climb ladders or stairs. (Tr. 464.) Although not cited
in his RFC form, in earlier medical records, Dunaway noted “abnormal signal in the spinal cord and
partial disc defecation at L4-L5 and L5-S1 disc spaces.” (Tr. 458.) This statement corresponds to an MRI
scan on Plaintiff performed November 2005. (Tr. 435.) In October of 2006, Dr. Dunaway prescribed
physical therapy for the Plaintiff to address chronic low back pain. (Tr. 293-94.) On January 8, 2007,
after a physical exam of Plaintiff, Dr. Dunaway noted disc desiccation with chronic low back pain and
positive straight leg raises. He prescribed epidural steroid injections. (Tr. 235-36.) Plaintiff received
these injections on January 10, 2007. (Tr. 237-50.)
Non-examining medical consultants Dr. Donahue and Dr. Sauer completed a physical RFC
based solely on the file. (Tr. 423.) They found she could perform medium work, with a dust and fumes
precaution. (Tr. 431.) They found she could occassionally lift or carry fifty pounds, frequently lift or
carry 25 pounds; could stand or walk six hours, sit six hours, and had unlimited push-pull capacity. (Tr.
425.) Despite a listed diagnosis of “Lumbar DDD” (Lumbar Degenerative Disc Disease), no postural
limitations such as stooping or crouching were indicated. (Tr. 426.)
Looking only at Plaintiff’s records in regard to migraines and pulmonary issues, Dr. Armstrong
found that Plaintiff could perform light work with pulmonary restrictions. She could sit, stand, and walk

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for six-eight hours. Lift twenty pounds occassionally, ten pounds frequently. (Tr. 41.) Climbing of ropes,
ladders, and scaffolds prohibited. Working at unprotected heights and with dangerous machinery should
be occassional. Further, no extremes of heat and cold. (Tr. 41-42.)
The mental RFC indicated that “the claimant is able to perform work where interpersonal contact
is incidental to work performed, e.g. assembly work; complexity of tasks is learned and performed by
rote, few variables, little judgment; supervision required is simple, direct, and concrete (unskilled). (Tr.
422.)
Plaintiff has consistently complained of low back pain to several doctors over the period of
2005-2010 represented in the medical records. ( Tr. 219-20, 369-70, 469-70, 474 ) In addition to various
narcotic pain medications, she has undergone epidural steroid injections to the back (Tr. 237-50) and
physical therapy. (Tr. 287-90.)
The ALJ found that Plaintiff maintained the residual functional capacity to perform light work,
with the following limitations: she cannot climb ladders/scaffolds/ropes; she must avoid extremes of
cold, fumes, gases and odors; she can do routine work involving things but not people. (Tr. 16)
In coming to this RFC, the ALJ discussed the findings of Dr. Allison and Dr. Westbrook. (Tr.
17-18.) Dr. Dunaway referred the Plaintiff to Dr. Allison, an orthopedic specialist. He found the MRI
to be essentially normal, with “no compression or other neurological impingement of the lower
extremeties.” (Tr. 468.) He did note a slight bulge at the annulus of L5-S1. (Tr. 469.) On physical exam
he noted an excellent range of motion, ability to toe walk, heel walk and knee bend without difficulty.
(Tr. 468.) He did however, note a mild positive straight leg raise on the right. (Tr. 468.) Dr. Westbrook
performed a consultative exam on Plaintiff. He noted “mild decreased disc space at L5.” (Tr. 396.) He
indicated a negative leg raise for both legs, and no other range of motion issues. (Tr. 392-96.)
In this case, the ALJ declined to give controlling weight to Dr. Dunaway’s opinions, and did not
discuss his Lumbar RFC. The only reason listed for either of these decisions is that “later medical

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records showed she improved” and that neither Dunaway nor other providers ever limited her actions
as part of her medical treatment for anything other than a short time after medical procedures. (Tr. 18.)
This does not meet the “good reason” standard required when giving the treating physician’s opinion
little or no weight.
Regarding the ALJ’s final RFC finding, Dr. Dunaway, Dr. Allison, and Dr. Westwood all noted
at least some level of abnormality at the Plaintiff’s L5 lumbar region. Further, Dr, Allen, an orthopedic
specialist, found that the Plaintiff did have a positive straight leg raise result for the right leg, consistent
with some of the notations in Dr. Dunaway’s records. Based on the consistency of these results, the
undersigned is puzzled that none of the typical limitations for lower back issues, such as a restriction on
stooping or crouching, are to be found in the final RFC.
The ALJ is directed to further develop the record concerning the Plaintiff’s physical RFC.
Specifically, the ALJ is directed to explicitly provide “good reasons” pursuant to 20 C.F.R. §
404.1527(c)(2)(i-ii), (c)(3)-(6) for giving little weight to Dr. Dunaway’s opinions and Lumbar RFC. The
ALJ is further directed to contact Dr. Allison and address interrogatories to him concerning possible
functional limitations of Plaintiff’s work capacity.
V.

Conclusion:
Accordingly, the undersigned 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 28th day of October, 2013.

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

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