Atwell v. Social Security Administration Commissioner

Filing 11

MEMORANDUM OPINION. Signed by Honorable Mark E. Ford on October 27, 2015. (hnc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION

JOHNNIE ATWELL

PLAINTIFF

VS.

Civil No. 2:15-cv-02023-MEF

CAROLYN W. COLVIN,
Commissioner of Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff, Johnnie Atwell, brings this action under 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 disability insurance benefits (“DIB”) under Title II of the Social Security
Act (hereinafter “the 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 filed his application for DIB on December 28, 2012, alleging an onset date of
September 1, 2011, due to pain in abdomen, chest, and groin; painful to lift and stand; shortness
of breath; weakness in legs and arms; swelling of legs and ankles; numbness in extremities; and,
headaches. (T. 148) Plaintiff’s application was denied initially and on reconsideration. (T. 81-83,
85-86) Plaintiff then requested an administrative hearing, which was held by Administrative Law
Judge (“ALJ”), Hon. Edward M. Starr, on September 13, 2013. Plaintiff was present and had a
representative present.
At the time of the hearing, Plaintiff was 60 years of age and had the equivalent of a high school
education. (T. 33, 149) Plaintiff’s past relevant work experience included working as a fork lift
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operator from December 2004 through October 2005, an assembly worker from September 2005
through March 2006, and a plumber’s apprentice from June 2006 through September 2011. (T.
150, 156)
On April 9, 2014, the ALJ found Plaintiff’s cardiovascular disorders (aortic aneurysm, postsurgical repair; and, hypertension) severe. (T. 18) Considering the Plaintiff’s age, education, work
experience, and the residual functional capacity (“RFC”) based upon all of his impairments, the
ALJ concluded Plaintiff was not disabled from September 1, 2011, through the date of his Decision
issued April 9, 2014. The ALJ determined Plaintiff had the RFC to perform light work. Plaintiff
could frequently lift and/or carry ten pounds and occasionally twenty pounds, sit for a total of six
hours in an eight hour workday, and stand and/or walk for a total of six hours in an eight hour
workday. He could occasionally climb, balance, crawl, kneel, stoop, and crouch. (T. 19)
Plaintiff appealed this decision to the Appeals Council, but said request for review was denied
on December 23, 2014. (T. 1-5) Plaintiff then filed this action on February 2, 2015. (Doc. 1) This
case is before the undersigned pursuant to consent of the parties. (Doc. 6) Both parties have filed
briefs (Doc. 8 and 9), and the case is ready for decision.
II.

Applicable Law:

This Court’s role is to determine whether substantial evidence supports the Commissioner’s
findings. Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). 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. Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011). The Court must
affirm the ALJ’s decision if the record contains substantial evidence to support it. Blackburn v.
Colvin, 761 F.3d 853, 858 (8th Cir. 2014). 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

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evidence exists in the record that would have supported a contrary outcome, or because the court
would have decided the case differently. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015). 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 Court must affirm the
ALJ’s decision. Id.
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 also 42 U.S.C. § 423(d)(1)(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). A plaintiff must show that his disability, not simply his impairment, has
lasted for at least twelve consecutive months.
The Commissioner’s regulations require her 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 or her 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 or her age, education, and experience. See 20 C.F.R. § 404.1520(a)(4). Only if he reaches
the final stage 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(a)(4)(v).

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III.

Discussion:

The Court must determine whether substantial evidence, taking the record as a whole, supports
the Commissioner’s decision that the Plaintiff had not been disabled from the onset date of
September 1, 2011, through the date of the ALJ’s Decision issued April 9, 2014. Plaintiff raises
four issues on appeal, which can be summarized as: (A) the ALJ failed to fully and fairly develop
the record; (B) the ALJ erred in his credibility analysis; (C) the ALJ erred in his RFC
determination; and, (C) the ALJ erred in step-four of his analysis. (Doc. 8, pp. 9-16) The Court has
reviewed the entire transcript. The complete set of facts and arguments are presented in the parties’
briefs and the ALJ’s opinion, and they are repeated here only to the extent necessary.
RFC Determination:
Plaintiff argues the ALJ failed to incorporate both mental and physical findings of the
Plaintiff’s treating physician and consultative examiner in his RFC determination, and that the ALJ
erred in the weight assigned to Dr. Terry L. Hoyt’s examination. (Doc. 8, pp. 13-14)
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. § 404.1545(a)(1).
A disability claimant has the burden of establishing his or her RFC. See Masterson v. Barnhart,
363 F.3d 731, 737 (8th Cir. 2004). “The ALJ determines a claimant’s RFC based on all relevant
evidence in the record, including medical records, observations of treating physicians and others,
and the claimant’s own descriptions of his or her limitations.” Davidson v. Astrue, 578 F.3d 838,
844 (8th Cir. 2009); see also Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010) (ALJ is responsible
for determining RFC based on all relevant evidence, including medical records, observations of
treating physicians and others, and claimant’s own description of his limitations). Limitations
resulting from symptoms such as pain are also factored into the assessment. 20 C.F.R. §
404.1545(a)(3).

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The Eighth Circuit has held that a “claimant’s residual functional capacity is a medical
question.” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001). Therefore, a claimant’s RFC
assessment “must be based on medical evidence that addresses the claimant’s ability to function
in the workplace.” “An administrative law judge may not draw upon his own inferences from
medical reports.” Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000). Instead, the ALJ should
seek opinions from a claimant’s treating physicians or from consultative examiners regarding the
claimant’s mental and physical RFC. Id.; Strongson v. Barnhart, 361 F. 3d 1066, 1070 (8th Cir.
2004).
August 28, 2013, Dr. Hoyt, at the request of the Plaintiff’s attorney, performed a history and
physical examination with functional capacity evaluation of the Plaintiff. Dr. Hoyt indicated
Plaintiff had not been adequately treating his medical problems, and Dr. Hoyt was strongly
concerned that Plaintiff had other medical issues that had not been addressed. (T. 268) Plaintiff
had recurrent chest pain, shortness of breath, abdominal pain and claudication, excessive
weakness, and ease of fatigability. (T. 268) Dr. Hoyt opined Plaintiff was at a very high risk of
decompensating and suffering another catastrophic and potentially life threatening event. Dr. Hoyt
determined Plaintiff suffered from arteriosclerotic cardiovascular disease and peripheral vascular
disease with further loss of leg function, which put him at high risk of suffering a heart attack or a
stroke. (T. 268) Plaintiff’s breathing was impaired from chronic obstructive pulmonary disease
(“COPD”), and he was notably depressed. (T. 268)
Plaintiff reported mild chest pain radiating down to his left arm, neck, jaw, and teeth. The chest
pain was heavy, deep, crushing, and increasing in severity. (T. 270) Plaintiff reported leg pain with
increased frequency. (T. 271) Plaintiff reported recurrent congestion, cough, shortness of breath,
sputum, and wheezing. He had leg pain while walking; high blood pressure; sleeping palpitations;

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back problems, muscle cramps, and weakness; depression, memory loss, mood change, excessive
stress, and nervousness; headaches; weakness and fatigue; and, prostate problems. (T. 271-272)
Plaintiff was awake, alert, understood questions, and responded appropriately and quickly. (T.
272) Dr. Hoyt observed Plaintiff’s neck was supple; lungs were clear, no crackles, wheezes,
rhonchi, stridor, or pleural rubs; however, his respirations were slightly labored. Plaintiff had
symmetrical excursions, increased AP diameter, and diffused chest wall tenderness. There was an
increased harshness of bronchovesicular sounds, a few scattered crackles, and panexpiratory
wheezes. (T. 272) Plaintiff’s cardiovascular and neurological examinations were normal; however,
he had generalized lower abdominal tenderness. (T. 272) Dr. Hoyt recommended further testing;
however, the Plaintiff indicated he did not have the financial resources for the testing. (T. 273)
Dr. Hoyt diagnosed Plaintiff with arterorscloeroic cardiovascular disease with peripheral
vascular insufficiency, status postoperative abdominal aortic aneurysm, hypertension, COPD, and
chest pain syndrome. (T. 274) His medical source statement indicated that during an eight-hour
work day Plaintiff could sit for two hours and stand and walk for one hour. (T. 274) Plaintiff could
continuously lift up to five pounds, frequently lift up to ten pounds, occasionally lift up to twenty
pounds, and never lift over twenty pounds. (T. 274) Plaintiff could occasionally grip with both
hands and was limited to pushing and pulling fifty percent of the time. (T. 275) He could not bend,
squat, crawl, or climb; however, he could occasionally reach above his head, stoop, crouch, and
kneel. (T. 275) Plaintiff could not tolerate exposure to unprotected heights, marked temperature
changes, and to dust, fumes, and gases; be around moving machinery, and was limited to
occasionally driving automotive equipment. (T. 275) Dr. Hoyt determined Plaintiff’s pain was
“moderate (could be tolerated but would cause marked handicap in the performance of the activity
precipitating the pain).” (T. 275) Plaintiff would have unscheduled breaks, be absent more than

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four days per month due to the impairments, and would need to elevate his feet periodically
throughout the day. (T. 276)
On February 6, 2014, Dr. Michael R. Westbrook, state agency medical consultant, conducted
a general physical examination. (T. 278) Plaintiff was a smoker of forty-five years, smoking one
and one half packs per day; however, he had stopped smoking two months prior to the examination.
(T. 278) Dr. Westbrook indicated there might be possible emphysema. (T. 278) Plaintiff was
diagnosed with hypertension. (T. 279) Plaintiff had sharp chest pain in the left upper chest, which
had been present since November 2010. (T. 279) Plaintiff had bilateral hip, knee, and t-spine pain.
(T. 279) He had neuropathy in both lower legs and feet, and two headaches per month. (T. 279)
Dr. Westbrook observed cyanosis in the Plaintiff’s feet. (T. 280) Plaintiff’s extremity exam was
within normal limits. (T. 280) Dr. Westbrook observed Plaintiff had a slightly kyphotic posture,
but his gait was within normal limits. (T. 281) Plaintiff was able to hold a pen and write; touch
fingertips to palm; oppose thumb to fingers; pick up a coin; stand/walk without assistive devices;
walk on heel and toes; squat and arise from a squatting position; and, he had a grip strength of
seventy-five percent in both hands. (T. 281) Dr. Westbrook diagnosed Plaintiff with a history of
abdominal aortic aneurysm post-surgical repair, arthralgia, hypertension, and neuropathy. (T. 282)
Based upon his evaluation, Dr. Westbrook determined Plaintiff was moderately limited in his
ability to walk, stand, sit, lift, carry handle, finger, see hear, or speak. (T. 282)
The ALJ rejected Dr. Hoyt’s evaluation because Dr. Hoyt did not perform “any objective
testing to support the conclusions expressed in the checklist form.” (T. 21) The ALJ determined
that Dr. Hoyt’s findings were in conflict with other credible medical evidence of record, were not
substantially supported by objective testing results, and because Dr. Hoyt was not one of Plaintiff’s
treating physicians, his opinion was given little weight by the ALJ. (T. 21) By contrast, the ALJ

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gave Dr. Westbrook’s opinions and findings substantial weight because his opinions were found
to be generally consistent with other credible medical evidence of record, and because Dr.
Westbrook “concluded that the examination showed that the claimant’s medical conditions were
nonsevere.” (T. 21) The Court cannot find any substantial evidence to conclude that Plaintiff’s
medical conditions were “non-severe,” and to the contrary, Dr. Westbrook even determined that
Plaintiff had moderate limitations. (T. 282)
Another misstatement in the ALJ’s opinion is that the “evidence d[id] not show that the
claimant experienced any complications during recovery” from his surgery. (T. 20) Medical
records show, however, that one of Plaintiff’s cultures tested positive for staph 1, and he was treated
with IV antibiotics for seven days. (T. 220)
Moreover, the ALJ indicated there was no mention of Plaintiff’s neck pain, leg pain, or
numbness in the extremities at his appointment with Physician’s Assistant Catherine Mustain
(“P.A. Mustain”). (T. 20) At an appointment with P.A. Mustain in August 2012, Plaintiff
complained about leg pain, numbness, difficulty walking when his legs were stiff; a burning
sensation in both legs or feet below the knee; and, pain in his abdomen, since the surgery, and it
felt like something was pinching in his lower abdomen. (T. 209) In March of 2013, the Plaintiff
sought treatment from P.A. Mustain and indicated he sometimes felt a sharp, pulling type of pain
in his lower abdomen with he moved “different” or tried to lift something. He also felt tired or

1

Staph infections are caused by staphylococcus bacteria, types of germs commonly found on the skin or in the nose

of even healthy individuals. Most of the time, these bacteria cause no problems or result in relatively minor skin
infections. But staph infections can turn deadly if the bacteria invade deeper into your body, entering your
bloodstream, joints, bones, lungs or heart. Staph infections can range from minor skin problems to endocarditis, a
life-threatening infection of the inner lining of your heart (endocardium). As a result, signs and symptoms of staph
infections vary widely, depending on the location and severity of the infection. http://www.mayoclinic.org/diseasesconditions/staph-infections/basics/definition/con-20031418 (last visited October 23, 2015)

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heaviness in his legs on both sides. (T. 233) Plaintiff had neck pain in the trapezius, which
increased by head movement and only lasted for a few seconds. (T. 233) Plaintiff had intermediate
claudication and abdominal pain. (T. 233) Plaintiff smoked a pack of cigarettes per day. (T. 233)
P.A. Mustain observed Plaintiff’s abdomen was abnormal, and it had a well healed surgical scar
on the left abdomen from suprapubic to epigastric area. (T. 233) Despite Plaintiff’s documented
complaints regarding his pain, the ALJ incorrectly indicated the symptoms mentioned above were
not previously recorded in the medical evidence.
The ALJ also indicated in his Decision that Plaintiff failed to follow the recommended course
of treatment. The ALJ stated that John R. Williams, M.D. recommended workup for the neck pain,
to include an MRI scan to assess neck conditions, and a referral to a gastroenterologist was offered
to assess the claimant’s abdominal pain, but the claimant wanted to apply for Medicaid or Medicare
prior to the referrals. The ALJ commented that there was no subsequent evidence showing that the
claimant pursued the referrals recommended. (T. 20) The pertinent medical record reads as
follows: “he may need to be worked up for his neck complaints - may need MRI of the neck to see
if he ha[d] a disc problem. I also would like to refer him to a gastroenterologist for his complaint
of abdominal pain with the sharp pulling sensations [he] is having. These [maybe] only be
adhesions, but need to be evaluated by a GI or IM specialist. I am also concerned about his
complaint of leg heaviness or weakness and am concerned about the vessels in his legs. This should
be evaluated by Doppler study and cardiologist. If he is able to get Medicaid or Medicare, I will
be happy to refer him for these work ups.” (T. 234) Plaintiff testified he sought treatment on a
sliding scale. He had no income, insurance, or means of support. (T. 33).
While a “deficiency in opinion-writing is not a sufficient reason to set aside an ALJ’s finding
where the deficiency [has] no practical effect on the outcome of the case,” inaccuracies, incomplete

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analyses, and unresolved conflicts of evidence can serve as a basis for remand. Reeder v. Apfel,
214 F.3d 984, 988 (8th Cir. 2000); Boyd v. Sullivan, 960 F.2d 733, 736 (8th Cir. 1992). In the case
at hand, the aforementioned inaccuracies in the record require a remand. The ALJ based his RFC
determination utilizing Dr. Westbrook’s general physical examination, and the ALJ mischaracterized Dr. Westbrook findings in determining that Plaintiff’s medical conditions were nonsevere. The ALJ is required to base his Decision upon the medical evidence of record, and it is
clear to the Court that he did not do so in this case. Accordingly, the Court cannot say that the
ALJ’s Decision is supported by substantial evidence.
On remand, the ALJ should reconsider the medical evidence in making his RFC determination
and ensure that it is an accurate assessment of what the Plaintiff is capable of performing in the
sometimes competitive and stressful conditions in which real people work in the real world. While
the ALJ did not have the benefit of reviewing the nerve conduction test performed on September
8, 2014, the ALJ should also review and incorporate the test results into his RFC determination.
IV.

Conclusion:

Based on the foregoing, I must reverse the decision of the ALJ and remand this case to the
Commissioner for further consideration pursuant to sentence four of 42 U.S.C. § 405(g).
Dated this 27th day of October, 2015.
/s/ Mark E. Ford
HONORABLE MARK E. FORD
UNITED STATES MAGISTRATE JUDGE

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