Cunningham v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Barry A. Bryant on July 2, 2015. (hnc)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
EVERT R. CUNNINGHAM
Civil No. 2:14-cv-2210
CAROLYN W. COLVIN, Acting Commissioner
Social Security Administration
Plaintiff, Evert Cunningham, 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 his claim for a period of disability, disability insurance benefits (“DIB”),
and supplemental security income (“SSI”) under the provisions of Titles II and XVI of the Social
Security Act (“Act”). The Parties have consented to the jurisdiction of a magistrate judge to conduct
any and all proceedings in this case, including conducting the trial, ordering the entry of a final
judgment, and conducting all post-judgment proceedings. (ECF No. 6).1 Pursuant to this authority,
the Court issues this memorandum opinion and orders the entry of a final judgment in this matter.
Plaintiff protectively filed his applications for DIB and SSI on October 9, 2012, alleging an
onset date of June 8, 2012, due to arthritis, slipped discs, diabetes, a spinal tumor, and kidney
problems. (Tr. 17, 233). For DIB purposes, Plaintiff retains insured status through December 31,
The docket numbers for this case are referenced by the designation “ECF No. __.” The transcript pages
for this case are referenced by the designation “Tr.”
2016. (Tr. 19, Finding 1). Plaintiff’s application was denied initially and on reconsideration. An
administrative hearing was held on September 27, 2013, at which Plaintiff appeared with counsel
and testified. (Tr. 35-73). A vocational expert (“VE”) was also present and testified. (Tr. 67-71).
On April 15, 2014, the Administrative Law Judge (“ALJ”) entered an unfavorable decision.
(Tr. 17-27). In this decision, the ALJ determined Plaintiff had the severe impairments of
“osteoarthritis in knees and back, diabetes mellitus, and neuropathy.” (Tr. 17, Finding 3). After
reviewing all of the evidence presented, however, the ALJ determined Plaintiff’s impairments did
not meet or equal the level of severity of any impairment listing. (Tr. 20, Finding 4).
The ALJ next evaluated Plaintiff’s subjective complaints and determined his RFC. (Tr. 1926). The ALJ first evaluated Plaintiff’s subjective complaints and found he was not entirely credible.
(Tr. 20-21, 25). The ALJ then found Plaintiff retained the residual functional capacity (“RFC”) to
perform sedentary work except “he is limited to occasional climbing, balancing, kneeling, crouching,
stooping, and crawling.” (T. 20, Finding 5).
With the help of the VE, the ALJ determined Plaintiff could not perform his past relevant
work (“PRW”). (Tr. 25, Finding 6). Based on the VE’s testimony, the ALJ then found Plaintiff
could perform the requirements of the representative occupations of addresser, charge account clerk,
and ticket counter. (Tr. 26-27, Finding 10). The ALJ then concluded Plaintiff was not disabled.
(Tr. 27, Finding 11).
On April 28, 2014, Plaintiff requested the Appeals Council review the ALJ’s unfavorable
decision, which denied the request on August 13, 2014. (Tr. 1-3). On October 3, 2014, Plaintiff
filed the present appeal. (ECF No. 1). The Parties consented to the jurisdiction of this Court on
October 21, 2014. (ECF No. 6). Both Parties have filed appeal briefs, and the case is ready for
decision. (ECF Nos. 11, 12).
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 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 to support the Commissioner’s decision, the Court may not reverse it 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). 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).
To determine whether a claimant suffers from a disability, the Commissioner uses a five-step
sequential evaluation. She determines: (1) whether the claimant is presently engaged in a substantial
gainful activity; (2) whether the claimant has a severe impairment that significantly limits the
claimant’s physical or mental ability to perform basic work activities; (3) whether the claimant has
an impairment that meets or equals a presumptively disabling impairment listed in the regulations
(if so, the claimant is disabled without regard to age, education, and work experience); (4) whether
the claimant has the RFC to perform his PRW; and (5) if the claimant cannot perform the past work,
the burden shifts to the Commissioner to prove there are other jobs in the national economy the
claimant can perform. 20 C.F.R. §§ 404.1520(a)-(f); Cox, 160 F.3d at 1206. The fact finder only
considers Plaintiff’s age, education, and work experience in light of his RFC if the final stage of this
analysis is reached. See 20 C.F.R. §§ 404.1520, 416.920.
Plaintiff argues the ALJ erred by: (1) not ordering a post-hearing consultative examination,
and (2) by giving great weight to the consulting physicians’ opinions. (ECF No. 11 at 5-10).
Plaintiff’s treatment notes establish he suffered from a range of medical conditions including
hypertension, diabetes, moderate to severe degenerative disc disease, a spinal tumor, and diabetic
neuropathy. (Tr. 327-329, 373-374, 438-443). In addition to Plaintiff’s treatment notes, the record
includes a consultative examination from State physician Dr. Chester Lawrence Carlson and two
physical RFC assessments from the State’s non-examining physicians. (Tr. 77-83, 94-104, 303-306).
Dr. Carlson examined Plaintiff on November 19, 2012. (Tr. 303). His report indicates the
exam was normal except Plaintiff had reduced knee range of motion from moderate to severe
arthritis and space narrowing. (Tr. 305-306). Dr. Carlson diagnosed Plaintiff with hypertension,
diabetes mellitus, and osteoarthritis, and he opined Plaintiff’s arthritis caused mild to moderate
limitations in the ability to bend, squat, and lift. (Tr. 306).
In January 2013, Dr. Valeria Malak, submitted a physical RFC assessment after reviewing
Dr. Carlson’s exam, Plaintiff’s function report and pain questionnaire, and records from Plaintiff’s
recent visits to the ER for right ankle pain and kidney problems. (Tr. 78-79). In reference to Dr.
Carlson’s exam, Dr. Malak noted “page 4 that was missing neuro—2+, gait - slow no squat/ rise ½
only pulses nl.” (Tr. 77).2 Dr. Malak determined Plaintiff’s severe impairments were “osteoarthrosis
and allied disorders,” but believed the objective medical evidence “did not reasonably substantiate
Plaintiff’s alleged pain.” (Tr. 80, 82). Based on the medical evidence, Dr. Malak opined Plaintiff
could perform sedentary work with postural restrictions. (Tr. 82). On February 25, 2012, Dr. David
Hicks, a State non-examining physician, completed a second physical RFC assessment based on
Plaintiff’s medical file, which included an updated function report and additional ER visits for
kidney problems. (Tr. 95-98). Dr. Hicks’ opinions matched Dr. Malak’s assessment. (Tr. 100-102).
On September 23, 2013, Plaintiff established care with Dr. Thinh Nguyen, who noted
Plaintiff had low back pain, peripheral neuropathy, hypertension, hyperlipidemia, and diabetes
mellitus. (Tr. 441). Dr. Nguyen’s exam showed Plaintiff’s lumbar spine “exhibited abnormalities
TTP midline and paraspinous;” a straight leg raise test was positive; Plaintiff’s gait and stance were
“abnormal;” and his patellar reflexes were “abnormal.” (Tr. 442). According to Dr. Nguyen,
Plaintiff’s fasting lipid profile was “horrible,” and his blood pressure was high. (Tr. 443). Plaintiff
was assessed with essential hypertension, being a current smoker, hyperlipidemia, diabetes mellitus,
diabetes with neurological complications-uncontrolled, lumbago, herniated lumbar disc, and sciatic
neuritis. (Tr. 442). Dr. Nguyen prescribed amitriptyline, pravastatin, glipizide, metformin, and
lisinopril.3 (Tr. 443).
The information reproduced by Dr. Malak does not appear in the administrative
transcript. Some of the information from Dr. Carlson’s exam was not included in the record
since the report skips from page 3 to page 5. (Tr. 305-306).
Plaintiff’s treatment with Dr. Nguyen is consistent with evidence from before Plaintiff’s
application date, which showed severe disc problems, a likely spinal tumor, and uncontrolled
peripheral neuropathy. (Tr. 321-322, 331-333, 361, 363, 371). As Plaintiff notes in his brief,
none of this evidence was reviewed by the consulting physicians. (ECF No. 11 at 6-7).
At Plaintiff’s follow-up on October 24, 2013, Dr. Nguyen noted Plaintiff’s straight leg test
was negative, but Plaintiff’s gait and stance remained abnormal, and his back pain continued to
radiate. (Tr. 438-439). Dr. Nguyen also ordered an MRI to investigate Plaintiff’s spinal tumor and
back pain. (Tr. 440). Plaintiff underwent an MRI on November 14, 2013, which showed a spotted
mass at the T11 level, and “prominent right paracentral protrusion at L3-4 with moderate severe
central stenosis and mass effect on nerve roots in the lateral recess.” (Tr. 434-435).
The ALJ summarized Plaintiff’s recent treatments, but deviated from the non-examining
consultants’ opinions by including diabetes mellitus and neuropathy as severe impairments without
explanation. (Tr. 19, 80, 99, 306). The ALJ, however, ultimately relied on the consultants’ opinions
for his RFC determination since he gave great weight to their assessments and formulated an RFC
matching their assessments. (Tr. 24-25).
Defendant contends the ALJ’s decision rests on substantial evidence and cites several cases
where courts have affirmed determinations that relied on only consulting physicians’ opinions and
treatment records. (ECF No. 12 at 9-11); see e.g., Masterson v. Barnhart, 363 F.3d 731, 738 (8th
Cir. 2004). This information would ordinarily be enough evidence for the ALJ to evaluate Plaintiff’s
impairments and formulate an RFC. Krogmeier v. Barnhart, 294 F.3d 1019, 1024 (8th Cir. 2002).
The issue in this case, however, is not the absence of medical opinions, but the lack of underlying
support in the record for the consulting physicians’ assessments. The consultants did not review key
evidence from the relevant time period, which diminishes the weight of their conclusions. See
Lauer v. Apfel, 245 F.3d 700, 706 (8th Cir. 2001).
The ALJ’s inclusion of different severe impairments than the consulting physicians also
suggests the ALJ did not properly rely on the consulting physicians’ assessments in formulating the
RFC. Id. at 705. The ALJ determined Plaintiff’s diabetes mellitus and neuropathy were severe
impairments, and Plaintiff’s testimony, function reports, and treatment records—such as a 2010
nerve conduction study and Dr. Nguyen’s notes—suggests Plaintiff’s peripheral neuropathy affected
the use of his hands and fingers. (Tr. 19-21, 59, 229, 257, 361, 373-374, 441). The ALJ did not
include an accommodation for these impairments, however, or explain how these impairments
impacted the RFC formulation. This may be, in part, because no examining physician offered an
opinion on the limitations from Plaintiff’s diabetic neuropathy, the consultative examiner did not
investigate Plaintiff’s manipulative ability or motor skills, and the non-examining physicians did not
review evidence addressing most of Plaintiff’s conditions, such as Dr. Nguyen’s notes and the most
recent MRI results.
Although the ALJ’s RFC conclusion purports to rely on the opinions of the State’s consulting
physicians, the non-examining consultants did not review most of the information in the record and
part of Dr. Carlson’s exam notes are missing in the transcript. Consequently, the ALJ was forced
to rely on inferences from Plaintiff’s treatment notes, which is not substantial evidence. See e.g.,
Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000); see also Dixon v. Barnhart, 324 F.3d 997,
1002-1003 (8th Cir. 2003)(noting an ALJ’s opinion which relied on a consulting physician’s RFC
assessment was not supported by substantial evidence when the consultant did not review treatment
notes and recommendations).
On remand, ALJ should obtain a complete copy of Dr. Carlson’s report, submit Plaintiff’s
treatment records to a consulting physician for review and, if necessary, reformulate Plaintiff’s RFC
after considering all the medical evidence.
Based on the foregoing, the undersigned finds that the decision of the ALJ, is not supported
by substantial evidence and should be reversed and remanded. A judgment incorporating these
findings will be entered pursuant to Federal Rules of Civil Procedure 52 and 58.
Dated this 2nd day of July 2015.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
U.S. MAGISTRATE JUDGE
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