Lewis v. Social Security Administration Commissioner

Filing 16

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on August 21, 2014. (lw)

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

PLAINTIFF

v.

Civil No. 13-2158

CAROLYN W. COLVIN,1 Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Kenneth Wayne Lewis, 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”)under Title II of the Social Security Act (hereinafter “the
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
Plaintiff applied for DIB on March 30, 2011. (Tr. 12.) Plaintiff alleged an onset date of January

31, 2011 due to spine/back impairments, specifically “degeneration of spine,” two herniated discs, and two
missing spinal discs. (Tr. 12, 161.) Plaintiff’s applications were denied initially and on reconsideration.
Plaintiff requested an administrative hearing, which was held on April 10, 2012 in front of Administrative
Law Judge (“ALJ”) Glenn A. Neel. Plaintiff was present to testify and was represented by counsel. The
ALJ also heard testimony from Vocational Expert (“VE”) Jim Spragins. (Tr. 25.)
At the time of the administrative hearing, Plaintiff was 58 years old, and possessed a high school
diploma with additional training from his past employer, Arkansas Oklahoma Gas Corporation. (Tr.

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

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32.).The Plaintiff had past relevant work experience (“PRW”) of gas-leak inspector and pipeline
construction inspector. (Tr. 19.)
On August 9, 2012, the ALJ concluded that Plaintiff suffered from the following severe
impairments: degenerative disc and joint disease of the lumbar spine. (Tr. 14.) The ALJ found that
Plaintiff maintained the residual functional capacity to perform light work, except he can only occasionally
balance, stoop, kneel, crouch, crawl, and climb. (Tr. 16.) With the assistance of the VE, the ALJ
determined that the Plaintiff could perform his past relevant work. (Tr. 19.)
Plaintiff requested a review by the Appeals Council on August 15, 2012. (Tr. 6.) The Appeals
Council declined review on May 20, 2013. (Tr. 1.) Plaintiff filed this appeal on June 24, 2013. (ECF. No.
1.) Both parties have filed appeal briefs, and the case is now ready for decision. (ECF Nos. 12, 15.)
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).
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

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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 four issues on appeal: 1) the ALJ erred in the weight given to treating physician Dr.

Jackson’s Physical RFC opinion; 2) the ALJ erred as to the Overall RFC determination; 3) the ALJ erred
as to his Step 4 Analysis; and 4) the ALJ failed to fully develop the record as to Plaintiff’s physical therapy
attendance.(Pl.’s Br. at 7-17.) Because this Court finds several issues require a remand, all of Plainitff’s
issues will not be addressed.
A. Improper Dismissal of RFC Opinion from Treating Physician Dr. Jackson
This Court is troubled by the fact that the ALJ appears to have dismissed Dr Jackson’s RFC
opinion based on mischaracterization of the evidence. Further, with the dismissal of the treating RFC, the

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ALJ then relied upon the RFC of a non-examining Agency physician, as there were no other RFCs in the
record.
“The ALJ should determine a claimant's RFC based on all the relevant evidence, including the
medical records, observations of treating physicians and others, and an individual's own description of his
limitations.” Davidson v. Astrue, 578 F.3d 838, 844 (8th Cir. 2009) (quoting Lacroix v. Barnhart, 465
F.3d 881, 887 (8th Cir.2006). 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) (“Testimony
based on hypothetical questions that do not encompass all relevant impairments cannot constitute
substantial evidence to support the ALJ's decision.”) Further, the ALJ is “not free to ignore medical
evidence.” Reeder v. Apfel, 214 F.3d 984, 988 (8th Cir. 2000) (ALJ’s opinion did not discuss or discredit
all diagnoses or limitations listed in medical records.)
Plaintiff has been seeing treating physician Dr. Jackson of Cooper Clinic since 2002. (Tr. 18, Pl’s
Br. at 9.) The first notation in the record concerning Plaintiff’s back issues and leg numbness occur on
June 2, 2004. He noted that he would order an MRI if the left foot numbness continued. (Tr. 248-49.) An
MRI was taken on October 5, 2004. (Tr. 253.) Dr. Builterman of Cooper Clinic interpreted the results. He
found advanced degenerative disc disease at L4-5 and L5-S1; degenerative joint disease involving the
facets, L5-0S1; moderate broad central disc herniation at L5-S1, and mild to moderate neural foramen
stenosis at L4-5 and L5-S1 associated with degenerative disc disease. (Tr. 253.)
Dr. Jackson referred Plaintiff to neurosurgeon Dr. Joseph Queeney of Cooper Clinic for surgical
evaluation of chronic back pain and chronic pain in both lower extremities. Dr. Queeney examined
Plaintiff on November 22, 2004. (Tr. 254.) His examination noted midline tenderness on the lower spine,
and 0/4 for deep tendon patellar and achilles reflexes. He noted negative results for straight leg raise,
stretch signs, and Patrick’s test. He also noted that Plaintiff could ambulate with a normal tandem based
gait and that strength and sensation to pinprick in the lower extremities was normal. Upon reviewing an

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x-ray taken that day and the previous MRI, he made several observations, including retolisthesis or L5 on
S1, vacuum disc phenomenon, “quite a bit of disc degeneration at L4-5 and L5-S1,” modic and plate
changes, and diffuse bulging at L4-5 and L5-S1. (Tr. 254.)
Dr. Queeney’s impression was “1. Degenerative disc disease of the lumbar spine. 2 Lumbar spinal
instability.” (Tr. 255.) He also stated, “I certainly think he does have a reason to hurt and I think the discs
are his primary pain generators.” He recommended that all conservative measures be explored before they
attempted surgery. (Tr. 255.)
An MRI on January 24, 2011 was interpreted by Dr. Brown of Cooper Clinic.(Tr. 250.) Dr. Brown
reviewed a Lumbar MRI and found degenerative disc changes at L4-5 and L5-1. He also found a broad
based disc bulge and spur to the right at L4-5 and mild canal stenosis at the 4-5 level and a disc bulge and
spur to the left at L5-S-1. (Tr. 250.)
Dr. Jackson completed a Physical Medical Source Statement on September 6, 2011. (Tr. 290.) He
opined that Plaintiff could sit/stand/walk for 15 minutes at a time in an 8-hour workday. He opined that
the Plaintiff could not bend, squat, crawl, climb, crouch, or kneel. He opined that Plaintiff could stoop
occasionally, and reach overhead frequently. He opined that Plaintiff would need to take unscheduled
breaks, would need to lie down at unpredictable times, would need to elevate his feet periodically, and
would need a sit/stand/walk option at will if employed. He opined that the Plaintiff’s symptoms and pain
would interfere with attention and concentration and would affect ability to tolerate work stress.
The ALJ discounted Dr. Jackson’s RFC opinion in part because it was not supported by the
objective medical evidence. Based on the exhibit citations and the date of the exam, the objective medical
evidence cited by the ALJ was that of neurosurgeon Dr. Queeney. (Tr. 19.) The ALJ correctly noted that
Dr. Queeney found “the claimant had a normal gait, and no lower extremity weakness.” (Tr. 19.) However,
the ALJ neglected to mention the additional findings of Dr. Queeney summarized above in this opinion,
including the impression of degenerative disc disease and lumbar instability. Thus, the ALJ

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mischaracterized evidence by ignoring a significant portion of Dr. Queeney’s examination evidence and
opinion. This requires a remand.
The dismissal of Dr. Jackson’s RFC also left the record devoid of any RFCs except one from a
non-examining Agency physician. This Court is also concerned as to the general accuracy of this
assessment, given that Dr. Redd noted that the Plaintiff is a 57-year-old female. (Tr. 283.) See e.g.
Strongson v. Barnhart, 361 F. 3d 1066, 1070 (8th Cir. 2004); Nevland v. Apfel, 204 F.3d 853, 858 (8th
Cir. 2000) (the ALJ should seek opinions from a claimant’s treating physicians or from consultative
examiners regarding the claimant’s mental and physical RFC; see also Davis v. Schweiker, 671 F. 2d 1187
(8th Cir. 1982), Taylor v. Bowen, 805 F. 2d 329, 331 (8th Cir. 1986) and Wildman v. Astrue, 596 F.3d
959, 967 (8th Cir. 2010) (Opinions of non-examining physicians deserve little weight in the overall
evaluation of disability.)
On remand, the ALJ is directed to obtain a Physical RFC Assessment from treating neurosurgeon
Dr. Queeney or from a treating or consultative examining orthopedic specialist. This RFC Assessment may
not take the form of a general summary of impressions and recommendations. Rather, it should specifically
address issues related to the Plaintiff’s ability to function in the workplace, such as the amount of weight
that can be lifted and how often, the amount of time that can be spent sitting/standing/walking in an 8-hour
workday, and the existence of any postural, manipulative, visual, communicative, environmental, or other
limitations, as well as any work accommodation that might be needed.
B. Step Four Analysis Not Sufficient
“An ALJ's decision that a claimant can return to his past work must be based on more than
conclusory statements. The ALJ must specifically set forth the claimant's limitations, both physical and
mental, and determine how those limitations affect the claimant's residual functional capacity.”Pfitzner v.
Apfel, 169 F.3d 566, 568 (8th Cir. 1999) (quoting Groeper v. Sullivan, 932 F.2d 1234, 1238-39 (8th
Cir.1991). The Agency itself clearly sets out in SSR 82-62 that the ALJ’s decision regarding the claimant’s

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ability to do PRW “must be developed and explained fully in the disability decision.” SSR 82-62; see also
Sells v. Shalala, 48 F.3d 1044, 1046 (8th Cir. 1995) “the ALJ has a duty to ‘fully investigate and make
explicit findings as to the physical and mental demands of a claimant's past relevant work and to compare
that with what the claimant herself is capable of doing before he determines that she is able to perform her
past relevant work.’” (quoting Nimick v. Secretary of Health & Human Serv., 887 F.2d 864, 866 (8th
Cir.1989) (emphasis in original)). •
In this case, after identifying PRW of gas-leak inspector and pipeline construction inspector, the
ALJ stated the following:
The claimant has the above described past relevant work, which as identified by the
vocational expert, are skilled positions each requiring light exertion. Assuming a
hypothetical person with the claimant’s residual functional capacity as assessed by the
undersigned in this decision, the vocational expert testified that the hypothetical person
would be able to perform the requirements of past relevant work. In comparing the
functional capacity with the physical demands of this work, the undersigned finds that the
claimant’s residual functional capacity with the physical and mental demands of this
work, the undersigned finds that the claimant is able to perform it as generally performed.

(Tr. 19.) This was not only conclusory but also neglected to accurately reflect the full nature of the
testimony that was given by the VE at the hearing. A close review of the record indicates that the VE did,
indeed, testify that the DOT listed these two occupations as light and skilled. (Tr. 64.) However, the VE
also testified that the Plaintiff performed the gas-leak inspector job at the medium exertional level, and the
pipeline construction inspector at either the heavy or very heavy level. (Tr. 64-65.) The VE also testified
about the postural limitaitons for the two positions. For the pipeline constuction position, DOT listed
balancing and crawling were not present, while climbing, stooping, kneeling, and couching were
occasional. For the gas leak inspector position, the DOT listed climbing, balancing, crouching, and
crawling as not present, while stooping and kneeling were occasional. (Tr. 65.) This is in direct contrast
to Plaintiff’s testimony that he had to get in and out of ditches, and otherwise “just couldn’t do the job
like it needed to be done.”(Tr. 46.) He testified that he was not able to stoop and bend, and that his

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coworkers were helping him do his job for at least six months before he retired. (Tr. 46.) He testified that
the inspector job required walking and stooping and bending. and traversing unlevel ground to lay the pipe,
such as pastures and hills. (Tr. 57.) He also testified that the pain affected his mental ability, and he had
made mistakes that were potentially life-threatening on the job. (Tr. 56.)
Further, the VE seemed concerned that the DOT information concerning the gas-leak inspector
position was “very dated” and therefore no longer accurate, but was cut off by the ALJ in mid-sentence.
(Tr. 66.)
None of these points of conflict were noted, explained, or in any way reconciled by the ALJ in his
decision. Thus, the ALJ failed to fully investigate and make explicit findings as to the physical and mental
demands of a claimant's past relevant work and to compare that with what the claimant herself is capable
of doing before finding that he could do past relevant work. Instead, the ALJ simply recited conclusory
boiler-plate language. This requires a remand.
On remand, the ALJ is directed to fully investigate and make explicit findings as to the physical
and mental demands of a claimant's past relevant work and to compare that with what the claimant herself
is capable of doing before finding that he could do past relevant work. This should include appropriate
input from the VE, including any concerns the VE might have about the validity of a DOT listing.
C. Medication Side Effects Not Addressed to VE
Finally, this Court is concerned by the ALJ’s failure to consider the effect of medication side
effects and to include those side effects in hypotheticals to the VE.
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).

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Plaintiff testified that he takes Hydrocodone2 and Meloxicam3 for his pain. (Tr. 53.) He testified
that Hydrocodone “makes me loopy,” and prevents him from driving. (Tr. 53.) He testified that he does
not take the Hydrocodone daily, only when he needs it. However, he agreed with the statement from the
ALJ that the more he does, the more he has to take. (Tr. 54.) The ALJ did not include this information in
his hypotheticals to the VE. This requires a remand.
On remand, the ALJ is directed to fully investigate any medication side effects that Plaintiff might
suffer from, and to include those in the hypotheticals to the VE.
IV.

Conclusion
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 21st day of August 2014.

J. Marschewski

/s/

HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE

2

Vicodin and other brand name hydrocodone/acetaminophen pain medications are opioid analgesics
indicated for relief of moderate to moderately severe pain. Side effects include acute liver failure,
lightheadedness, dizziness, sedation, N/V. http://www.pdr.net/drug-summary/vicodin?druglabelid=33&id=627
(last accessed August 21, 2014).
3

Meloxicam is an NSAID indicated for relief of osteoarthritis and rheumatoid arthritis. Side effects
include Abdominal pain, diarrhea, dyspepsia, nausea, headache, anemia, arthralgia, insomnia, upper respiratory
tract infection, urinary tract infection, dizziness, pain, pharyngitis, edema, influenza-like symptoms.
http://www.pdr.net/drug-summary/mobic?druglabelid=1245&id=1610 (last accessed August 21, 2014).

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