Hennagan v. Social Security Administration Commissioner

Filing 14

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on May 23, 2014. (lw)

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

MICHAEL DAVID HENNAGAN

PLAINTIFF

v.

Civil No. 13-2106

CAROLYN W. COLVIN,1 Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Michael David Hennagan, 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 disability insurance benefits (“DIB”) and supplemental security income 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
Plaintiff applied for DIB and SSI on March 17, 2011. (Tr. 10.) Plaintiff alleged an onset date of

March 17, 2011 due to arthritis, osteoporosis, Hepatitis C, hearing loss, high blood pressure, and
depression. (Tr. 10, 166.) Plaintiff’s applications were denied initially and on reconsideration. Plaintiff
requested an administrative hearing, which was held on May 4, 2012 before ALJ Clifford Shilling.
Plaintiff was present to testify and was represented by counsel. The ALJ also heard testimony from
Vocational Expert (“VE”) Patricia Kent.(Tr. 29.)

1

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 substituted for Commissioner
Michael J. Astrue as the defendant in this suit.

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At the time of the administrative hearing, Plaintiff was 53 years old, possessed a GED, and had
attended forklift driving school. (Tr. 34.) The Plaintiff had past relevant work experience (“PRW”) of
carpenter, produce truck driver, mail sorter, and semi-trailer truck driver. (Tr. 20.)
On September 7, 2012, the ALJ concluded that Plaintiff suffered from the following severe
impairments: “arthritis, osteoporosis, hepatitis C, history of acute meningitis, history of renal stones, mild
degenerative disc disease of the lumbar spine, mild degenerative disc disease of the cervical spine,
hypertension, adjustment order with anxiety, and major depressive disorder.” (Tr. 12.) The ALJ found
that Plaintiff maintained the residual functional capacity to “perform light work, except he can lift, carry,
push, and pull 20 pounds occasionally and 10 pounds frequently; he can stand and walk about 6-hours in
an 8-hour workday with normal breaks; he can sit 6 hours in an 8-hour workday with normal breaks; he
can occasionally climb, stoop, kneel, crouch, and crawl; he can frequently handle bilaterally; he must avoid
work where excellent vision is required or in which reading print smaller than standard newspaper print
is required; he is limited to occupations that do not require fine hearing capability; he can perform simple,
routine, and repetitive tasks; work where interpersonal contact is incidental to the tasks performed and
where supervision required is simple, direct, and concrete.” (Tr. 14.)
With the assistance of the VE, the ALJ determined that the Plaintiff could perform such
representative occupations as janitor and meat trimmer, if they were performed at the light exertional level
rather than the more usual medium exertional level. The ALJ also found that he could perform the
representative occupation of car wash attendant. (Tr. 21.)
Plaintiff requested a review by the Appeals Council on September 18, 2012. (Tr. 5.) The Appeals
Council declined review on March 4, 2013. (Tr. 1.)
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

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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).
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

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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 four issues on appeal: 1) the ALJ failed to properly develop the evidence; 2) the

ALJ failed to consider evidence which fairly detracted from her findings; 3) the ALJ failed to apply the
proper legal standards regarding credibility of subjective complaints, weight of physician’s opinions, and
RFC assigned to Plaintiff; and 4) the ALJ failed to satisfy the burden of proof at Step Five. (Pl.’s Br. at 1119.) Because this Court finds that the ALJ erred in his credibility analysis on two points and also failed to
fully and fairly develop the record, the remaining arguments will not be addressed.
A.

Credibility Analysis Improper
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)). 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 687, 695 (8th Cir.2007) (citing Polaski v. Heckler, 729 F.2d
1320, 1322 (8th Cir.1984). 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). However, 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). An ALJ’s decision to discredit a claimant’s credibility is
entitled to deference when the ALJ provides “good reason for doing so.” Dunahoo v. Apfel, 241 F.3d 1033,
1038 (8th Cir. 2001.)

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In this case, the ALJ’s credibility analysis fails on two points
First, a proper Polaski analysis requires the ALJ to conduct 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). At the time of the hearing, Plaintiff testified that he was taking
the following drugs prescribed by his treating physician, Dr. Dunham of Clarksville Medical Group:
Hydrochlorothiazide2 for high blood pressure, Doxepin3 to help him sleep, Lisinopril4 for high blood
pressure, Risperidone5 for hallucinations, Oxycodone6 for pain, and Fluoxetine7 (generic Prozac) for

2

Hydrochlorothiazide is a thiazide diuretic indicated for treatment of hypertension. Side effects
include Weakness, hypotension (including orthostatic hypotension), pancreatitis, jaundice, diarrhea,
vomiting, blood dyscrasias, rash, photosensitivity, electrolyte imbalance, impotence, renal
dysfunction/failure, interstitial nephritis.
http://www.pdr.net/drug-summary/hydrochlorothiazide-tablets?druglabelid=1973&id=812 (accessed
May 7, 2011.)
3

Doxepin is an H1-antagonist indicated fro treatment of insomnia characterized by difficulties
with sleep maintenance. Side effects include somnolence, sedation, upper respiratory tract infection,
nasopharyngitis, hypertension, gastroenteritis, dizziness, and nausea and vomiting.
http://www.pdr.net/drug-summary/silenor?druglabelid=2780 (accessed May 7, 2011).
4

Lisinopril is an ACE inhibitor indicate for treatment of hypertension. Side effects include
Hypotension, dizziness, headache, diarrhea, cough, chest pain, hyperkalemia.
http://www.pdr.net/drug-summary/prinivil?druglabelid=376&id=839
5

Risperidone is a benzisoxazole derivative indicated for treatment of schizophrenia. Side
effects include increased appetite, fatigue, N/V, constipation, parkinsonism, upper abdominal pain,
anxiety, dizziness, tremor, sedation, akathisia, dystonia, blurred vision, stomach discomfort.
http://www.pdr.net/drug-summary/risperdal?druglabelid=977&id=606 (accessed May 7, 2011).
6

Oxycodone is an opioid analgesic indicated for treatment of moderate to severe pain. Side
effects include respiratory depression/arrest, circulatory depression, cardiac arrest, hypotension, shock,
N/V, constipation, headache, pruritus, insomnia, dizziness, asthenia, somnolence.
http://www.pdr.net/drug-summary/roxicodone?druglabelid=1007&id=1286. (accessed May 7, 2011).
7

Prozac is a selective serotonin reuptake inhibitor indicated for treatment of major depressive
disorder in patients older than 8 years of age , OCD, bulimia, panic disorder, bipolar disorder, and
treatment resistant depression. Side effects include Somnolence, anorexia, anxiety, asthenia, diarrhea,
dry mouth, dyspepsia, headache, insomnia, tremor, pharyngitis, flu syndrome, dizziness, nausea,
nervousness. http://www.pdr.net/drug-summary/prozac?druglabelid=3205&id=370 (accessed May 7,

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depression. (Tr. 42-43.) He testified that he wakes up groggy and his leg s are “all rubbery.” He testified
that his medications give him lightheadedness and dizziness, he sweats a lot, and he has drowsiness and
nausea. (Tr. 45-46.) In a list of medications submitted prior to the hearing, he indicated that also took
Mirtazapine8 and Nabumetone9 for depression and arthritis, and that these were new drugs for him. (Tr.
1060.) The ALJ did not include any medication side effects in any of the hypotheticals to the VE. This
requires a remand.
Second, the ALJ mischaracterized a significant fact about the Plaintiff’s activities of daily living
(“ADL”). Incorrect or imprecise evidence “cannot constitute substantial evidence to support an ALJ’s
decision.” See e.g. Hinchey v. Shalala, 29 F.3d 428, 432 (8th Cir. 1994) Specifically, the ALJ states that,
on a typical day, Plaintiff takes care of his dog and walks six-tenths of a mile. (Tr. 15.) What the Plaintiff
actually testified was that he walks his dog around a plant just across from his house. He estimated the
distance to be about one-sixteenth of a mile, possibly less. (Tr. 46.) One-sixteenth of a mile is 330 feet,
while six-tenths of a mile is 3,168 feet or just less than a kilometer.10Thus, these numbers give very
different pictures of Plaintiff’s typical day and physical capacity. Given that the ALJ relied on the ADL

2011).
8

Mirtazapine is a piperazino-azepine indicated for treatment of major depressive disorder. Side
effects include somnolence, increased appetite, weight gain, dizziness, dry mouth, constipation,
asthenia, flu syndrome, abnormal dreams, abnormal thinking.
http://www.pdr.net/drug-summary/remeron?druglabelid=384&id=971 (accessed May 7, 2011).
9

Nabumetone is an NSAID indicated for treatment of osteoarthritis and rheumatoid arthritis.
Side effects include diarrhea, dyspepsia, abdominal pain, constipation, flatulence, nausea/vomiting,
positive stool guaiac, dizziness, headache, pruritus, rash, tinnitus, edema.
http://www.pdr.net/drug-summary/nabumetone?druglabelid=776&id=1437 (accessed May 7, 2011).
10

http://wiki.answers.com/Q/How_many_feet_are_there_in_one_sixteenth_of_a_mile;
http://wiki.answers.com/Q/How_many_feet_are_there_in_one_sixteenth_of_a_mile;
http://www.algebra.com/algebra/homework/word/misc/Miscellaneous_Word_Problems.faq.question.4
29145.html (accessed May 7, 2011).

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in part to discredit Plaintiff’s subjective allegations and the opinion of at least one physician, this error
requires a remand.
On remand, the ALJ is directed to perform a new credibility analysis once all information from
the remand has been received. This credibility evaluation must explicitly discuss each of the Polaski
factors, and must take into account the discussion of the facts in this opinion. Further, for each factor, the
ALJ must explicitly include his reasoning for each factor, complete with accurate record citations to each
source of facts used in that analysis.
B.

Failure to Fully and Fairly Develop the Record
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 exists "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)). Once the ALJ
is made aware of a crucial issue that might change the outcome of a case, the ALJ must conduct further
inquiry to fully develop the record. Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004.); see e.g. Vossen
v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010) (ALJ’s failure to recontact Commissioner’s consultative
physician to authenticate his report was reversible error when that report supported Plaintiff’s claim).
In order to develop the record properly, “the ALJ is not free to ignore medical evidence but rather
must consider the whole record.” Reeder v. Apfel, 214 F.3d 984, 988 (8th Cir. 2000). In this case, Plaintiff
saw Dr. Dunham repeatedly starting in December 2011. (Tr. 1052-55, 1059). and testified that he was his
current treating physician at the hearing. (Tr. 41-42 ) The ALJ specifically noted this at the hearing in his
questioning of Plaintiff. (Tr. 41-42. ) Dr. Dunham’s diagnosis and treatment supports Plaintiff’s claims.
However, the ALJ’s opinion does not mention Dr. Dunham’s diagnosis and treatment of the Plaintiff for
poorly controlled depression, psychosis, chronic back pain, and osteoarthritis. The only mention of these

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records in Exhibit 33F is where they are cited in the opinion to show that Plaintiff denied any current
kidney symptoms after having suffered a kidney stone. (Tr. 19.) This requires a remand.
Further, it is well-settled in the Eighth Circuit that the ALJ may not rely solely on the report of nonexamining Agency physicians to determine the Plaintiff’s RFC. See e.g. 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). If the ALJ is not satisfied with the quality
of the medical records on a crucial issue, he or she has a duty to develop the record further. Vossen, 612
F.3d at 1016. Although the medical record for this case is voluminous, the ALJ either rejected or ignored
the opinions of multiple physicians on both physical and mental issues crucial to Plaintiff’s RFC. Instead,
the ALJ relied solely on the opinions of non-examining Agency physicians.
Regarding Plaintiff’s mental issues, he both raised the crucial issue of and provided objective
medical support for depression and hallucinations. However, the ALJ appears to have either given “little
weight” or failed to discuss all of the examining or treating physicians opinions , including a psychiatric
specialist. Instead, he relied solely upon the RFC provided by a non-examining Agency physician.
His treating physicians, Dr. Marshall and later Dr. Dunham, diagnosed and prescribed medications
for these issues. Dr. Marshall diagnosed him with depression, prescribed Citalopram, and then Paroxetine.
(Tr. 546-548.) Dr. Dunham diagnosed him with depression and psychosis, and prescribed Risperdal and
Prozac. (Tr. 1052-54. ) On November 19, 2012, Dr. Dunham noted that his depression was poorly
controlled and that his psychosis was better, but “limits his ability to be functional.” (Tr. 1059.) The ALJ
did not discuss Dr. Marshall’s opinion or treatment of Plaintiff’s mental issues. As discussed above, the
ALJ failed to discuss Dr. Dunham’s treatment records.
Plaintiff was seen for a consultative mental examination by Dr. Peacock, a clinical psychologist
and faculty member at the University of Arkansas for Medical Sciences, on June 20, 2011. (Tr. 465.) Dr.
Peacock diagnosed Plaintiff with “Polysubstance sustained full remission, Major Depressive Disorder,

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Single Episode, moderate, and Adjustment Disorder with Anxiety.” (Tr. 468.) On his discussion of
adaptive functioning, Dr. Peacock stated that he “highly doubts that Mr. Hennagan has the basic capacity
to complete work like tasks within an acceptable time frame.” (Tr. 470.) He further stated that “it would
not be surprising if Mr. Hennagan struggled on tasks involving sustained focus.” (Tr. 469.) “Mr. Hennagan
would likely struggle to cope with the typical cognitive and mental demands of a job at the present time.”
(Tr. 469.) He assigned a GAF of 60, but did not complete any formal IQ testing. The ALJ found that Dr.
Peacock’s opinion was inconsistent with both the medical evidence and the claimant’s reported level of
functioning, and gave it “little weight.” (Tr. 17.)
Plaintiff was admitted into the behavioral unit of St. Mary’s Regional Medical Center on October
31, 2011 because he was hallucinating and acting upon those hallucinations. (Tr. 592.) He underwent
therapy and had his medications adjusted. He was discharged on November 3, 2011 with a diagnosis of
“Major depression, recurrent, with psychotic features” and “ Delirium, resolved.” (Tr. 594.) The ALJ
appears to have dismissed at least part of this opinion because Plaintiff was discharged with “no evidence
of psychotic symptomology.” (Tr. 18.)
Thus, the only remaining opinion in the record addressing Plaintiff’s mental issues11 is the Mental
RFC performed by non-examining Agency physician Dr. Paula Lynch on August 4, 2011. This RFC
assessed either no significant limitations or moderate limitations for all categories. (Tr. 489-90.) The
summary stated that “[c]laimant appears to be able to perform simple, rote, routine, repetitive, tasks in a
setting where interpersonal contact is incidental to tasks performed; and where supervision is simple,
direct, and concrete. “ (Tr. 491.) This summary is reproduced essentially verbatim in the ALJ’s Overall
RFC Assessment.

11

Plaintiff presented at Johnson Regional Medical Center with hallucinations due to viral
meningitis in August 2010. (Tr. 390, 839.) However, because the meningitis was treated and appears
to have been resolved without lingering effect, these medical records are not discussed in this opinion.

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Thus, it appears that the ALJ relied solely upon the opinion of a non-treating, non-examining
agency physician for the mental portion of the Overall RFC. This requires a remand.
Additionally, this Court notes that a similar issues exists for Plaintiff’s musculoskeletal issues.
Plaintiff presented to at least three of his own doctors for chronic back pain, and additionally underwent
a physical consultative examination. The ALJ either ignored or rejected the opinions of all four doctors.
The ALJ rejected treating physician Dr. Marshall’s Physical RFC as inconsistent with her own
treatment notes. (Tr. 18.) He did summarize the November 11, 2011 MRI of Plaintiff’s back and cervical
areas scheduled by Dr. Marshall. The MRI indicated mild degenerative disc disease and mild osteoarthritis
of the lumbar spine, along with postoperative changes in the cervical spine. (Tr. 568-69.) The ALJ failed
to discuss Dr. Dunham’s notes. Nor does he discuss Dr. Kukendall’s x-ray assessement of Plaintiff’s
lumbar spondylosis with multi-level disc degeneration. (Tr. 314.)
CE Agency physician Dr. Stewart indicated “L-spine normal” or lumbar spine normal and
assessed no physical limitations on May 25, 2011. (Tr. 436.) This assessment was made without the
benefit of the later MRI, as was the Physical RFC completed June 15, 2011. (Tr. 493.) The ALJ correctly
gave the CE’s opinion little weight.
However, we are once again left with only the opinion of a non-examining Agency physician to
determine the status of Plaintiff’s spine, a crucial issue for the Overall RFC. This requires a remand.
On remand, the ALJ is directed to order a second consultative examination with a psychiatric
specialist. As part of this examination, the specialist must complete a Mental RFC evaluation. The ALJ is
further directed to order a consultative examination with an orthopedic specialist to assess Plaintiff’s
musculoskeletal issues. The orthopedic specialist must also complete a Physical RFC assessment.
IV.

Conclusion

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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 23rd day of May 2014.

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

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