Ehrlich v. Social Security Administration Commissioner

Filing 15

MEMORANDUM OPINION. Signed by Honorable Mark E. Ford on February 9, 2015. (hnc)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
TERRI ELLEN EHRLICH
VS.

PLAINTIFF
CIVIL NO. 2:14-CV-02052

CAROLYN W. COLVIN, Commissioner
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Terri Ellen Ehrlich, brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of a decision of the Commissioner of the Social Security Administration
(“Commissioner”) denying her claim for a period of disability and disability insurance benefits
(“DIB”) under the provisions of Title II of the Social Security Act (“Act”). 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 protectively filed her application for DIB on October 24, 2011, alleging an
inability to work since April 1, 2009, due to degenerative disc disease in her neck and back,
carpal tunnel syndrome in both wrists, pain in her hips, knees, and ankles, and depression. (T.
47-50, 134-137, 158) For DIB purposes, Plaintiff’s date last insured was December 31, 2014. (T.
154) Plaintiff’s claims were denied initially and on reconsideration. (T. 75-77, 84-85) An
administrative hearing was held on November 16, 2012, at which Plaintiff appeared with counsel
and testified. (T. 38-70)
At the time of the hearing, Plaintiff was forty-nine years of age and possessed a tenth

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grade education. (T. 44) Plaintiff had past relevant work (“PRW”) experience as a cook and
housekeeper for a monastery. (T. 46, 53-54, 68-69, 165, 174) Plaintiff had been employed at the
monastery for twenty years. (T. 46, 174)
By a written decision dated March 15, 2013, the Administrative Law Judge (“ALJ”)
determined Plaintiff had the following severe impairments: back disorder (cervical and lumbar
degenerative disc disease post cervical fusion), osteoarthritis, hypertension, and depression. (T.
17). Regarding these severe impairments, the ALJ determined that Plaintiff’s back impairment
could reasonably cause pain and limit the Plaintiff’s sitting, standing, and lifting; that Plaintiff’s
osteoarthritis could reasonably be expected to cause pain and limit the Plaintiff’s sitting,
standing, walking, lifting and carrying; that Plaintiff’s hypertension could reasonably be expected
to cause headaches, dizziness, or confusion, or require treatment with medications that cause
adverse side effects that limit the Plaintiff’s ability to perform work activities; and, that
Plaintiff’s mood disorder could reasonably affect the Plaintiff’s concentration, persistence, and
pace, or impair the ability to interact appropriately with co-workers, supervisors, and the public.
(T. 17-18) After reviewing all of the evidence presented, however, the ALJ determined that
Plaintiff’s impairments did not meet or equal the level of severity of any impairment listed in the
Listing of Impairments. (T. 18-20) The ALJ found Plaintiff retained the residual functional
capacity (“RFC”) to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b),
except as follows: to frequently lift and/or carry ten pounds and occasionally twenty pounds, to
sit for a total of six hours in an eight hour day, to stand and/or walk for a total of six hours in an
eight hour day, and to perform unskilled work that includes simple tasks with simple
instructions. (T. 20) With the help of a Vocational Expert (“VE”), the ALJ determined Plaintiff
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could not perform all of her PRW, but that she could perform her PRW as a Housekeeper. (T.
23-24) Considering the Plaintiff’s age, education, work experience, and RFC, the ALJ
determined there were a significant number of jobs in the national economy that Plaintiff could
perform. (T. 24-25) The ALJ then found that Plaintiff had not been under a disability during the
relevant time period. (T. 25)
Plaintiff requested a review of the hearing decision by the Appeals Council on May 8,
2013. (T. 10) The Appeals Council denied Plaintiff’s request for review on February 7, 2014. (T.
1-6). Plaintiff then filed this action on March 19, 2014. (Doc. 1) The case is before the
undersigned pursuant to the consent of the parties. (Doc. 11) Both parties have filed appeal
briefs, and the case is ready for decision. (Docs. 13, 14)
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. Ramirez v. Barnhart, 292 F.3d 576, 583 (8th Cir.
2002). Substantial evidence is less than a preponderance, but it is enough that a reasonable mind
would find it adequate to support the Commissioner’s decision. “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.” Cox v. Astrue, 495 F.3d
614, 617 (8th Cir. 2007). The ALJ’s decision must be affirmed if the record contains substantial
evidence to support it. Edwards v. Barnhart, 314 F.3d 964, 966 (8th Cir. 2003). As long as there
is substantial evidence in the record that supports the Commissioner’s decision, the Court may
not reverse it simply because substantial evidence exists in the record that would have supported
a contrary outcome, or because the Court would have decided the case differently. Haley v.
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Massanari, 258 F.3d 742, 747 (8th Cir. 2001). In other words, if after reviewing the record it is
possible to draw two inconsistent positions from the evidence and one of those positions
represents the findings of the ALJ, the decision of the ALJ must be affirmed. Young v. Apfel, 221
F.3d 1065, 1068 (8th Cir. 2000).
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 substantial gainful activity. Pearsall v. Massanari, 274 F.3d 1211, 1217
(8th Cir. 2001); 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 demonstrated 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 the application of 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 RFC. See McCoy v. Schweiker, 683 F.2d 1138, 1141-42 (8th Cir.
1982); 20 C .F.R. §§ 404.1520, 416.920 (2003).
III. Discussion
The ALJ has a “‘duty to develop the record fully and fairly, 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)); Frankl v. Shalala, 47 F.3d 935, 938 (8th Cir.
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1995) (ALJ must fully and fairly develop the record so that a just determination of disability may
be made). This is so because an administrative hearing is not an adversarial proceeding. Henrie
v. Dept. of Health & Human Serv., 13 F.3d 359, 361 (10th Cir.1993). “[T]he goals of the
Secretary and the advocates should be the same: that deserving claimants who apply for benefits
receive justice.” Sears v. Bowen, 840 F.2d 394, 402 (7th Cir.1988). That duty may include
seeking clarification from treating physicians if a crucial issue is undeveloped or
underdeveloped. Smith v. Barnhart 435 F.3d 926, 930 (8th Cir. 2006). 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, 45 (8th Cir.
1994).
It is incumbent upon the ALJ to establish by medical evidence that the claimant has the
requisite RFC. 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).
The Court is concerned that the ALJ failed to fully and fairly develop the record
regarding Plaintiff’s limitations and RFC.
In his Decision, the ALJ referred to a consultative examination of the Plaintiff performed
by Richard Trevor, M.D. on July 11, 2009 at the request of DDS. (T. 21) Upon his one
examination of Plaintiff, Dr. Trevor opined that Plaintiff “should be able to sit, walk, and/or
stand for a full workday . . . I believe she is limited in her ability to lift/carry objects for any
extended period of time. (T. 261) The ALJ also mentions the report of a non-examining
consultative physician, A. Edward Dean, M.D., who conducted a review of Plaintiff’s medical
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records on July 28, 2009 and concluded that Plaintiff remained able to perform light exertional
work. (T. 21, 278-285) The ALJ then discussed the report of a non-examining consultative
psychologist, Tom Ray, Ph.D., who reviewed Plaintiff’s medical evidence and found that
Plaintiff had no medically determinable mental impairment. (T. 21, 276) In discussing these
opinions, the ALJ does not specify how much weight he has given to them, but it appears from
his Decision that he has given them all great weight.
The ALJ does indicate that he gave substantial weight to the opinion of Chester L.
Carlson, D.O., another one-time examining consultant, who examined Plaintiff on November
14, 2011. (T. 22) Dr. Carlson diagnosed Plaintiff with chronic back pain secondary to
degenerative disc disease and arthritis, chronic neck pain secondary to degenerative disc disease
status post surgical fusion at C6-C7, and he concluded that Plaintiff had “minimally limited
ability to bend, lift, walk long distances due to back pain,” and that she had “moderately limited
ability to rotate and extend neck.” (T. 290)
The Court has stated many times that the results of a one-time medical evaluation do not
constitute substantial evidence on which the ALJ can permissibly base his decision. See, e.g.,
Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir.1999) (stating that the opinion of a consultative
physician does not generally satisfy the substantial evidence requirement). This is especially true
when the consultative physician is the only examining doctor to contradict the treating physician.
Cox v. Barnhart 345 F.3d 606, 610 (8th Cir. 2003).
The Court notes that none of the above-mentioned consultative physicians had the benefit
of reviewing the MRI reports of July 23, 2012, the report of neurosurgeon Shawn P. Moore,
M.D. dated September 5, 2012, the treatment records of Plaintiff’s treating physician, Jerry R.
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Stewart, M.D. from May 11, 2012 through October 22, 2012, or the treatment records from
Angela Chapman, M.D. and Clark Williams, Ph.D. at Western Arkansas Counseling and
Guidance Center dating from May 31, 2012 through September 21, 2012. (T. 307-311, 312-315,
320-328, 331-347) All of these medical records demonstrate severe physical and mental
impairments suffered by Plaintiff, but the ALJ, in the Court’s view, has not adequately
considered them in determining the Plaintiff’s RFC.
The MRI of Plaintiff’s cervical spine done on July 23, 2012 reveals degenerative changes
at multiple levels, including: mild hypertrophy of the right uncinate process and associated mild
stenosis of the right neural foramina at C3-C4; a small posterior osteophyte in a left paracentral
distribution, mild hypertrophy of the right uncinate process, a mild diffuse disc bulge, and
abutment upon the anterior aspect of the thecal sac at C5-C6; the fusion of the C6 and C7
vertebral bodies, with a small osteophyte formation with abutment on the anterior aspect of the
thecal sac; and, mild hypertrophy of the left uncinate process with associated mild stenosis of the
left neural foramina at C7-T1. (T. 307-308)
The MRI of Plaintiff’s lumbar spine done on July 23, 2012 also shows degenerative
changes at multiple levels, including: hypertrophy of bilateral uncinate processes, right more than
left, and abutment upon the posterior aspect of the thecal sac with associated mild spinal canal
stenosis at T10-T11; a mild diffuse disc bulge and small posterior osteophyte formation at L1L2; a mild diffuse disc bulge and small posterior osteophyte formation at L2-L3; a mild diffuse
disc bulge with slight right asymmetry, mild hypertrophy of the ligamentum flavum, and also
mild stenosis of the right neural foramina at L3-L4; mild diffuse disc bulge into the bilateral
neural foramina, left greater than right, mild stenosis of the bilateral neural foramina, and
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hypertrophy of the ligamentum flavum and bilateral facet joints at L4-L5; and, minimal bulging
of disc in a left paracentral distribution at L5-S1. (T. 309-310)
Shawn P. Moore, M.D., a neurosurgeon, saw Plaintiff on September 5, 2012, at which
time he reviewed her signs, symptoms, and the MRI results with her. Upon physical exam, Dr.
Moore found that Plaintiff has “markedly diminished range of motion with cervical flexion,
extension, and lateral rotation,” and that she has “diminished range of motion with lumbar
flexion, extension, and rotation.” (T. 314) Dr. Moore reported:
“I counseled her that in light of her diffuse degenerative disk
disease, I would not recommend surgical intervention. This would
require extensive fusions of her lumbar and cervical spine. I am
not optimistic that this would significantly improve her pain
levels or functional status. I will refer her to Dr. Sewell with
Anesthesia for evaluation and treatment.” (T. 314)
It is concerning to the Court that all the ALJ gleaned from Dr. Moore’s report was that
“surgical treatment was not indicated and the claimant was referred to Dr. Sewell with anesthesia
for evaluation and treatment.” (T. 22) Such a conclusion by the ALJ unfairly mis-characterizes
the substance of Dr. Moore’s report. It is clear from Dr. Moore’s report that the reason “surgical
treatment was not indicated” is that surgery would require “extensive fusions of her lumbar and
cervical spine” with little likelihood of providing pain relief or functional improvement. As a
result, Dr. Moore referred Plaintiff to an anesthesiologist for evaluation and pain management
treatment. Opinions of specialists on issues within their areas of expertise are generally entitled
to more weight than the opinions of non-specialists. See 20 C.F.R. §§ 404.1527(d)(5) and
416.927(d)(5); Guilliams v. Barnhart 393 F.3d 798, 803 (8th Cir. 2005); Brown v. Astrue, 611
F.3d 941, 953 (8th Cir. 2010).

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Plaintiff’s primary treating physician, Jerry R. Stewart, M.D., diagnosed Plaintiff with
multiple impairments, including but not limited to, backache, neck pain (cervicalgia), orthopedic
disorders of the spine, carpal tunnel syndrome, and depression. (T. 320, 323, 325) The ALJ
commented that “no functional limitations were assessed” by Dr. Stewart (T. 22) That fails to
recognize, however, that “a treating doctor’s silence on the claimant’s work capacity does not
constitute substantial evidence supporting ALJ’s functional capacity determination when the
doctor was not asked to express an opinion on the matter and did not do so, particularly when
that doctor did not discharge the claimant from treatment.” See Pate-Fires v. Astrue, 564 F.3d
935 (8th Cir. 2009), quoting Hutsell v. Massanari, 259 F.3d 707, 712 (8th Cir. 2001).
Concerning Plaintiff’s mental impairment, depression, she was evaluated and treated at
Western Arkansas Counseling and Guidance Center. Plaintiff was diagnosed as suffering from
severe, recurrent major depressive disorder. (T. 331, 335, 337, 346) At a visit on August 9, 2012,
Plaintiff reported a history of depression for “all my life,” that she has dealt with it “in my own
way,” and that she has had episodes of severe depression lasting longer than two weeks in
duration. (T. 333) Her treatment records at WACGC also reflect “problems with access to
healthcare services.” (T. 335, 346)
The ALJ noted that Plaintiff was started on Cymbalta, but quit the medication because
she did not like the way it made her feel. (T. 23) Plaintiff had complained on September 21, 2012
that Cymbalta made her extremely irritable, that she had a medical procedure scheduled on
October 4, 2012 (an esophagogastroduodenscopy with biopsy and dilatation)(T. 349-352), and
that she did not want to start any new medications prior to that procedure. (T. 331) Although the
ALJ commented about Plaintiff discontinuing Cymbalta, he failed to mention that the treatment
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plan called for her to begin taking Celexa after the October 4, 2012 procedure. (T. 332) During
the ALJ hearing, Plaintiff testified to taking Celexa. (T. 50)
The ALJ also stated that “[t]he onset of the claimant’s symptoms was not identified,” and
that “. . . there is no evidence to support a finding of depression symptoms prior to the alleged
onset date.” (T. 23) That ignores the Plaintiff’s report to her physician of long-standing troubles
with depression, including severe episodes lasting longer than two weeks. Further, the absence
of treatment records for depression prior to the alleged date of onset does not end the inquiry, as
the medical evidence does establish that at least prior to the administrative hearing and within
the relevant time frame the Plaintiff was diagnosed with severe, recurrent depression. In his
finding that Plaintiff’s impairment from depression was severe, the ALJ found that it could
reasonably affect the Plaintiff’s concentration, persistence, and pace, and that it could also impair
her ability to interact appropriately with co-workers, supervisors, and the public. (T. 18) Despite
this, the ALJ did nothing to further develop the record as to just how Plaintiff’s severe
impairment from depression would affect her ability to work. If the ALJ had a question about
the date of onset, and about the functional limitations resulting from Plaintiff’s depression, he
should have sought clarification from Plaintiff’s physician at WACGC or from a medical
consultant. Vaughn v. Heckler, Supra.; Smith v. Barnhart, Supra.
After reviewing the record as a whole, the Court concludes that the ALJ did not fully and
fairly develop the record in order to properly determine Plaintiff’s RFC. Therefore, the ALJ’s
determination of Plaintiff’s RFC is not supported by substantial evidence, and the case must be
reversed and remanded. On remand, the ALJ should address interrogatories to the neurosurgeon,
Shawn P. Moore, M.D., and to Plaintiff’s treating physician, Jerry R. Stewart, M.D., requesting
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that they complete an RFC assessment and opine as to whether Plaintiff’s physical impairments
limit her ability to work. Additionally, the ALJ should address interrogatories to Angela
Chapman, M.D. and Clark Williams, Ph.D. at Western Arkansas Counseling and Guidance
Center requesting that they complete an RFC assessment and opine as to whether Plaintiff’s
mental impairment limits her ability to work.
With this additional evidence, the ALJ should then reassess Plaintiff’s RFC and
specifically list in a hypothetical to a Vocational Expert any limitations that are indicated in the
RFC assessments and supported by the evidence.
IV. Conclusion
Having carefully reviewed the record, the Court finds that the ALJ’s Decision denying
the Plaintiff benefits is not supported by substantial evidence, and therefore, the case should be
remanded to the Commissioner for further consideration pursuant to sentence four of 42 U.S.C.
§ 405(g).
DATED this 9th day of February, 2015
/s/ Mark E. Ford
HONORABLE MARK E. FORD
UNITED STATES MAGISTRATE JUDGE

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