Hutson v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION Signed by Honorable James R. Marschewski on February 3, 2012. (sh)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION

MELISSA K. HUTSON
v.

PLAINTIFF
Civil No. 10-3110

MICHAEL J. ASTRUE, Commissioner of
Social Security Administration

DEFENDANT

MEMORANDUM OPINION
I.

Factual and Procedural Background
Plaintiff, Melissa K. Hutson, brings this action seeking judicial review, pursuant to 42 U.S.C.

§ 405(g), of a decision of the Commissioner of the Social Security Administration (“Commissioner”)
denying her application for security income (“SSI”) under Title XVI of the Social Security Act (“the
Act”).
Plaintiff protectively filed her SSI application on March 21, 2007, alleging disability as of
December 1, 1981, due to bipolar disorder, anxiety, panic attacks, dermatitis, obesity, back and leg
pain, heel pain, acid reflux, asthma, restless leg syndrome (“RLS”), and borderline diabetes. Tr. 63,
125, 178. On the alleged onset date, Plaintiff was thirty two years old with a seventh grade
education. Tr. 26, 74, 129, 243. She has no past relevant work. Tr. 73.
Plaintiff’s applications were denied at the initial and reconsideration levels. Tr. 76-79, 81-82.
At Plaintiff’s request, an administrative hearing was held on March 25, 2009. Tr. 22-57. Plaintiff
was present at this hearing and represented by counsel. The ALJ rendered an unfavorable decision
on August 20, 2009, finding Plaintiff was not disabled within the meaning of the Act. Tr. 60-75.
Subsequently, the Appeals Council denied Plaintiff’s Request for Review on October 4, 2010, thus
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making the ALJ’s decision the final decision of the Commissioner. Tr. 1-3. Plaintiff now seeks
judicial review of that decision.
II.

Medical History
In 1989, Plaintiff was involved in a motor vehicle accident, which resulted in a fracture of

her left femur and surgical placement of a rod. Tr. 182, 187. Plaintiff alleges many of her physical
and mental impairments developed following her accident.
A. Robert Ahrens, M.D.
From 2003 through 2008, Plaintiff was treated by Robert Ahrens, M.D., for the following
complaints: heel pain, back pain, wheezing, allergies, RLS, urinary incontinence, and dermatitis.
Tr. 269-270, 294-312. In April 2007, Plaintiff complained of heel pain, back pain, wheezing, and
peeling skin. Tr. 270. On examination, Plaintiff’s heels were tender bilaterally and her hands were
scaly and cracked. Tr. 270. Dr. Ahrens assessed Plaintiff with dermatitis, bronchospasms, and heel
pain. Tr. 270. He prescribed an Albuterol inhaler, anti-inflammatory medication, and referred
Plaintiff to a dermatologist for evaluation of her hands. Tr. 270.
In May 2007, Plaintiff stated Albuterol helped her wheezing, but she still complained of heel,
back, and leg pain without improvement on anti-inflammatory medication. Tr. 269. Dr. Ahrens
diagnosed Plaintiff with RLS and prescribed Ketroprofen, Sinemet, and heel cups for Plaintiff’s feet.
Tr. 269. At a follow-up appointment in August, Plaintiff stated Sinemet and heel cups had improved
her heel and leg pain, but she still experienced back pain. Tr. 269. On examination, Plaintiff had
tenderness in her thoracic and lumbar spine. Tr. 269. She was given a steroid injection for pain.
Tr. 269.

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In May 2008, Dr. Ahrens prescribed Oxybutynin for bladder control and discussed Plaintiff’s
need to lose weight. Tr. 305. In October 2008, Plaintiff complained of abdominal pain and had
slightly elevated liver enzymes. Tr. 296, 301. An abdominal ultrasound revealed a mildly enlarged
and fatty liver. Tr. 297. Subsequent laboratory tests performed in December 2008 showed normal
liver functioning. Tr. 294.
B. Ozark Counseling Services
In February 2007, Plaintiff began counseling at Ozark Counseling Services (“OCS”). Tr.
233-241, 278-292. She reported a history of irritability, anger outbursts, mood swings, panic attacks,
fatigue, decreased attention and concentration, and low self-esteem. Tr. 233. When asked about
drug use, Plaintiff stated she used to drink heavily but now only drank once per month and on special
occasions. Tr. 233. She previously smoked marijuana and intermittently used methamphetamine
up until two months prior to the appointment. Tr. 233. On examination, Plaintiff appeared anxious
and preoccupied. Tr. 237. Her affect was constricted and judgment and insight were impaired. Tr.
237. Her treatment plan included individual therapy, group therapy, and medication management.
Tr. 238.
On February 22, 2007, Plaintiff was pleasant and cooperative and her mood and affect were
euthymic. Tr. 234. Memory recall was within normal limits, but Plaintiff’s attention span was
decreased. Tr. 234. Insight and judgement were fair. Tr. 234. Plaintiff’s behavior was spontaneous
and well-organized, and she denied any suicidal or homicidal thoughts. Tr. 234. R. Steve Austin,
M.D., noted no outward signs of anxiety or depression. Tr. 234. He estimated Plaintiff’s
intelligence as average. Tr. 234. Dr. Austin diagnosed Plaintiff with depressive disorder, not
otherwise specified (“NOS”), personality disorder NOS, a history of substance abuse/dependence,
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and rule out bipolar and panic disorders. Tr. 234. He estimated Plaintiff’s Global Assessment of
Functioning (“GAF”) score at 55. Tr. 234. Dr. Austin prescribed Rozerem and Paxil. Tr. 235. On
March 22, 2007, Plaintiff stated that Rozerem had really helped her sleep. Tr. 288. In August 2007,
Dr. Austin increased Plaintiff’s dosage of Paxil due to continued complaints of irritability. Tr. 289.
On January 24, 2008, Joel A. Price, M.D., saw Plaintiff and diagnosed her with bipolar II
disorder, personality disorder NOS, recurrent major depressive episodes with hypomanic episodes,
history of substance abuse/dependence, and history of concussive closed head injury from a motor
vehicle accident. Tr. 290. Dr. Price estimated Plaintiff’s GAF score at 50. Tr. 290. Plaintiff had
self-discontinued Paxil and Rozerem, so Dr. Smith placed her on Invega and Celexa. Tr. 290. In
April 2008, Plaintiff reported having two DWI convictions in a short time. Tr. 291. Dr. Price
diagnosed Plaintiff with depression NOS, alcohol abuse, and personality disorder NOS. Tr. 291.
He added BuSpar and Rozerem to her medications. Tr. 291. By July 2008, Plaintiff stated she was
doing well, but had verbally assaulted others. Tr. 292. Dr. Price estimated Plaintiff’s GAF score
at 50 and increased her dosage of Invega. Tr. 292. He also referred Plaintiff to a neurologist and a
neuropsychiatrist to rule out any underlying cognitive condition. Tr. 292.
On April 2, 2009, Joan Shepard, Plaintiff’s counselor at OCS, completed a Mental RFC
Questionnaire, in which she noted diagnoses of bipolar II disorder, agoraphobia, and personality
disorder NOS, and a GAF score of 50. Tr. 339-348. She found serious memory and concentration
problems, high irritability and temper control, high anxiety, and fear of crowds. Tr. 339. Ms.
Shepard found that Plaintiff had no useful ability to function in eleven unskilled work categories,
was unable to meet competitive standards in three unskilled work categories, and was seriously
limited, but not precluded, in two unskilled work categories. Tr. 341-342. She found that Plaintiff
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would miss more than four workdays per month. Tr. 342.
C. Rolland Bailey, D.O.
Rolland Bailey, D.O., treated Plaintiff for the following impairments: acid reflux, morbid
obesity, pre-diabetes, metabolic syndrome, major depression, anxiety, mood disorder, and an
abscessed tooth. Tr. 206-222. In February 2007, Dr. Bailey discussed Plaintiff’s elevated C-peptide
level and prescribed a trial of Metformin. Tr. 209. On May 30, 2007, Dr. Bailey wrote a letter in
which he stated he found no problems with Plaintiff sitting, standing, walking, lifting, carrying
objects, hearing, speaking, or traveling. Tr. 206. He noted major psychiatric problems including
bipolar disorder and panic attacks. Tr. 206. He also noted diagnoses of pre-diabetes, with an
elevated C-peptide, and marked obesity. Tr. 206.
D. Lonnie Robinson, M.D.
On April 9, 2007, Plaintiff presented to Regional Family Medicine for a second opinion on
her diagnosis of pre-diabetes. Tr. 204-205. Her height was 5'3" and her weight was 252 pounds.
Tr. 204. Lonnie Robinson, M.D., discussed the possibility of a two-hour glucose test to determine
whether Plaintiff was at risk for diabetes. Tr. 204. He also discussed lifestyle changes and noted
the need for exercise and dietary changes. Tr. 204.
E. Agency Specialists
On June 18, 2007, Steve Owens, M.D., an agency consultant, completed a Physical Residual
Functional Capacity (“RFC”) Assessment, in which he determined Plaintiff could occasionally
lift/carry fifty pounds, frequently lift/carry twenty five pounds, stand/walk/sit about six hours in an
eight-hour workday, and push/pull within those limitations. Tr. 223-230. He found no postural,
manipulative, visual, communicative, or environmental limitations. Tr. 225-230.
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In a Psychiatric Review Technique Form (“PRTF”) dated August 23, 2007, Brad F. Williams,
Ph.D., determined Plaintiff’s impairments did not meet Listings 12.04 (affective disorders), 12.06
(anxiety-related disorders), 12.08 (personality disorders), and 12.09 (substance addiction disorders).
Tr. 248-261. Dr. Williams found mild restriction of activities of daily living, moderate difficulties
in maintaining social functioning, moderate difficulties in maintaining concentration, persistence,
or pace, and no episodes of decompensation. Tr. 258. In a Mental RFC Assessment, Dr. Williams
found Plaintiff moderately limited in the ability to understand, remember, and carry out detailed
instructions, maintain attention and concentration for extended periods, make simple work-related
decisions, complete a normal workday and work week without interruptions from psychologically
based symptoms, perform at a consistent pace without an unreasonable number and length of rest
periods, interact appropriately with the general public, accept instructions and respond appropriately
to criticism from supervisors, and set realistic goals or make plans independently of others. Tr. 262263. Dr. Williams found that Plaintiff was not significantly limited in the twelve remaining workrelated categories. Tr. 262-263. He determined Plaintiff was capable of performing unskilled work.
Tr. 264.
F. W. Charles Nichols, Psy.D.
On August 2, 2007, Plaintiff underwent a consultative psychological evaluation conducted
by W. Charles Nichols, Psy.D. Tr. 242-247. Plaintiff reported a history of depression, anxiety, panic
attacks, irritability, and mood swings. Tr. 242. She was currently engaged in counseling at OCS,
which she found helpful. Tr. 243. She reported taking Paxil and Buspar, which improved her mood
stability and anxiety. Tr. 243. When asked about substance abuse, Plaintiff stated she drank an
average of two to three times per month, consuming about twelve beers in one sitting. Tr. 244. She

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also admitted marijuana use within the past month, but denied frequent use. Tr. 244. She reported
heavy methamphetamine use in the recent past. Tr. 244.
On examination, Plaintiff was cooperative and pleasant with good humor at times. Tr. 244.
Plaintiff’s affect was euthymic and she did not appear overly depressed. Tr. 245. Thought processes
were efficient and goal-directed. Tr. 245. Plaintiff denied suicidal or homicidal ideation. Tr. 245.
Dr. Nichols noted that Plaintiff’s substance abuse could very likely be inducing her mood and
anxiety problems. Tr. 246. He also noted that Plaintiff did not appear to be bipolar, as she did not
report the presence of any past manic or hypomanic mood episodes. Tr. 246. Dr. Nichols assessed
Plaintiff with alcohol abuse, cannabis abuse, methamphetamine abuse, anxiety disorder NOS, and
mood disorder NOS, and estimated Plaintiff’s GAF score at 61. Tr. 246. He noted good social
skills, minimal impairment of activities of daily living, below average attention, variable
concentration, and below average pace. Tr. 246. He also noted that symptom exaggeration was
possible, given Plaintiff’s conflicting reports of substance abuse, lack of bipolar symptoms, and
joking and relaxed attitude during the interview. Tr. 246.
G. Baxter Regional Medical Center
On January 30, 2008, Plaintiff presented to Baxter Regional Medical Center with complaints
of a rash on her hands and feet, puffiness in her legs, RLS, and low back pain. Tr. 311-312. On
examination, Plaintiff had a rash on both hands and edema in both legs. Tr. 311. She was given
prescriptions for Requip for RLS, hydrochlorothiazide for fluid retention, and Darvocet for pain.
Tr. 312. She was also referred to a dermatologist. Tr. 311. On September 17, 2008, Plaintiff was
given a steroid injection and referred for chronic pain management. Tr. 299-301.

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H. Bruce D. Robbins, M.D.
In August 2008, Plaintiff saw Bruce D. Robbins, M.D., for a neurology consultation
concerning her memory problems and anger outbursts. Tr. 335-337. Plaintiff’s neurological
examination was normal with the exception of diminished reflexes.

Tr. 336.

An

electroencephalogram (“EEG”), performed on August 25, 2008, was normal. Tr. 334. An MRI of
Plaintiff’s head revealed some increased signal in the left internal ear canal and a suspicious area in
the left MCA, likely representing tortuosity of the arteries vs. a small aneurysm. Tr. 333. Dr.
Robbins prescribed Gabapentin and recommended a magnetic resonance angiogram (“MRA”). Tr.
332, 336. MRA findings showed no specific abnormalities or evidence of aneurysm. Tr. 331.
I. James Hawk, M.D.
On November 18, 2008, Plaintiff presented to James Hawk, M.D., for pain management. Tr.
314-325. On examination, Dr. Hawk noted diffuse mild to moderate tenderness in the paraspinal
area, guarding of the left hip during rotation, and some mild laxity of the left knee. Tr. 319. He
diagnosed Plaintiff with osteoarthritis, degenerative joint disease, morbid obesity (contributory to
joint disease), peptic ulcer disease, depression, anxiety, insomnia, fatty liver with abnormal liver
enzymes, and chronic pain syndrome. Tr. 319. He prescribed Tofranil, Piroxicam, Neurontin, and
Vicodin. Tr. 319-320. Dr. Hawk also instructed Plaintiff on weight loss and home exercises. Tr.
320. In January 2009, Dr. Hawk noted mild tenderness, especially in the lumbar spine. Tr. 314. He
assessed Plaintiff with low back pain/strain, muscle spasms, and chronic pain syndrome, but found
that Plaintiff’s pain was improving. Tr. 314.

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J. Vann A. Smith, M.D.
On April 1, 2009, Plaintiff saw Vann A. Smith, Ph.D., for a consultative neuropsychological
evaluation. Tr. 350-358. Plaintiff reported occasional alcohol consumption. Tr. 350. On
examination, Plaintiff was oriented in all spheres. Tr. 350. Her memory was impaired, but her
judgment and insight were grossly intact. Tr. 350. Narratives were fluent and informative and
thought processes were functional in quality. Tr. 350. On the Wechsler Adult Intelligence ScaleRevised, Plaintiff received a verbal score of 83, a performance score of 85, and a full-scale score of
82. Tr. 351. After administering various tests, Dr. Smith diagnosed Plaintiff with cognitive
dysfunction, non-psychotic, secondary to general medical condition(s), and borderline intellectual
functioning. Tr. 353. He estimated Plaintiff’s GAF score at 35. Tr. 354. It was Dr. Smith’s opinion
that Plaintiff was disabled. Tr. 352.
In a Mental RFC Assessment, Dr. Smith found Plaintiff unable to meet competitive standards
in six unskilled work categories and seriously limited, but not precluded, in the ten remaining
unskilled work categories. Tr. 356. He determined Plaintiff would miss more than four workdays
per month if employed. Tr. 357.
III.

Applicable Law
The Court’s role on review is to determine whether the Commissioner’s findings are

supported by substantial evidence in the record as a whole. Ramirez v. Barnhart, 292 F.3d 576, 583
(8th Cir. 2003). “Substantial evidence is less than a preponderance, but enough so that a reasonable
mind might accept it as adequate to support a conclusion.” Estes v. Barnhart, 275 F.3d 722, 724 (8th
Cir. 2002) (quoting Johnson v. Apfel, 240 F.3d 1145, 1147 (8th Cir. 2001)). In determining whether
evidence is substantial, the Court considers both evidence that detracts from the Commissioner’s

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decision as well as evidence that supports it. Craig v. Apfel, 212 F.3d 433, 435-36 (8th Cir. 2000)
(citing Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000)). If, after conducting this review, “it
is possible to draw two inconsistent positions from the evidence and one of those positions
represents the [Secretary’s] findings,” then the decision must be affirmed. Cox v. Astrue, 495 F.3d
614, 617 (8th Cir. 2007) (quoting Siemers v. Shalala, 47 F.3d 299, 301 (8th Cir. 1995)).
To be eligible for disability insurance benefits, a claimant has the burden of establishing that
she is unable to engage in any substantial gainful activity due to a medically determinable physical
or mental impairment that has lasted, or can be expected to last, for no less than twelve months.
Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); 42 U.S.C. § 423(d)(1)(A). The
Commissioner applies a five-step sequential evaluation process to all disability claims: (1) whether
the claimant is engaged in substantial gainful activity; (2) whether the claimant has a severe
impairment that significantly limits her physical or mental ability to perform basic work activities;
(3) whether the claimant has an impairment that meets or equals a disabling impairment listed in the
regulations; (4) whether the claimant has the RFC to perform her past relevant work; and (5) if the
claimant cannot perform her past work, the burden of production then shifts to the Commissioner
to prove that there are other jobs in the national economy that the claimant can perform given her
age, education, and work experience. Pearsall, 274 F.3d at 1217; 20 C.F.R. § 404.1520(a),
416.920(a). If a claimant fails to meet the criteria at any step in the evaluation, the process ends and
the claimant is deemed not disabled. Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir.
2004).

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IV.

ALJ’s Determination
At step one, the ALJ determined Plaintiff had not engaged in substantial gainful activity at

any point since March 21, 2007, the application date. Tr. 65. At step two, the ALJ found Plaintiff
suffered from depression, drug/alcohol abuse, status-post leg fracture, and obesity, all of which were
considered severe impairments under the Act. Tr. 65-68. At step three, she determined Plaintiff did
not have an impairment or combination of impairments that met or medically equaled a listed
impairment. Tr. 68-70.
At step four, the ALJ found Plaintiff had the RFC to perform medium work1 with frequent
postural limitations. Tr. 70-73. Mentally, the ALJ determined Plaintiff could perform unskilled
work where interpersonal contact is incidental to the work performed. Tr. 70-73.
Once the ALJ determined Plaintiff had no past relevant work, she moved to step five. Tr.
73. After receiving vocational expert testimony, the ALJ found jobs existing in significant numbers
in the national economy that Plaintiff could perform.2 Tr. 74-75. Accordingly, the ALJ determined
Plaintiff was not under a disability from March 21, 2007, the application date, through August 20,
2009, the date of the decision. Tr. 75.
V.

Discussion
On appeal, Plaintiff contends the ALJ erred by: (1) failing to find all of her impairments

severe; (2) failing to afford proper weight to her treating physicians; and (3) improperly dismissing

1

Medium work involves lifting no more than fifty pounds at a time with frequent lifting or carrying of
objects weighing up to twenty five pounds. 20 C.F.R. §§ 404.1567(c), 416.967(c).
2

The ALJ determined Plaintiff could perform the requirements of representative occupations such as linen
room attendant, of which there are 70 jobs regionally and 77,000 jobs nationally, meat clerk, of which there are 4000
jobs regionally and 114,000 jobs nationally, and kitchen helper, of which there are 3000 jobs regionally and 373,000
jobs nationally. Tr. 74.

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the opinion of Dr. Smith. See Pl.’s Br. 6-22. For the following reasons, the court finds that
substantial evidence does not support the ALJ’s decision.
The ALJ has a duty to fully and fairly develop the record, even if a claimant is represented
by counsel. Wilcutts v. Apfel, 143 F.3d 1134, 1137 (8th Cir. 1998). “It is well-settled that the ALJ's
duty to fully and fairly develop the record includes the responsibility of ensuring that the record
includes evidence addressing the alleged impairments at issue from either a treating or examining
physician. Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir.2000) (holding that it was improper for an
ALJ to rely on the opinions of reviewing physicians alone). While the Secretary is under no duty
to go to inordinate lengths to develop a claimant's case, he must “make an investigation that is not
wholly inadequate under the circumstances.” Battles v. Shalala, 36 F.3d 43, 45 (8th Cir. 1994)
(quoting Miranda v. Secretary of Health, Educ. & Welfare, 514 F.2d 996, 998 (1st Cir. 1975)).
There is no bright-line test for determining when the Secretary has failed to adequately develop the
record; the determination must be made on a case by case basis. Battles, 36 F.3d at 45 (quoting
Lashley v. Secretary of Health & Human Serv., 708 F.2d 1048, 1052 (6th Cir.1983)).
Given Plaintiff’s consistent complaints of back pain despite treatment with medication,
ongoing pain management, and steroid injections, the undersigned questions whether she is capable
of performing medium work with frequent postural limitations. In her analysis, the ALJ noted that
“there are no imaging studies demonstrating a back abnormality.” Tr. 66. This is due to the fact that
no imaging studies were performed, not because Plaintiff indeed has no back impairment. While
the court recognizes that it is not the ALJ’s duty to provide continuing medical treatment for a
claimant, Baldwin v. Barnhart, 349 F.3d 549, 558 (8th Cir. 2003), there must be sufficient evidence
in the record for the ALJ to make an informed decision regarding a claimant’s limitations. See

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Halverson v. Astrue, 600 F.3d 922, 933 (8th Cir. 2010) (ALJ is required to order medical
examinations and tests only if the medical records do not give sufficient medical evidence to
determine whether the claimant is disabled). In this instance, the ALJ should have ordered a
consultative physical evaluation with imaging studies to determine the underlying etiology of
Plaintiff’s back pain and the full extent of her resulting physical limitations.
Additionally, the ALJ’s failure to identify Plaintiff’s back pain as severe was not harmless
error. As noted by the Eighth Circuit, the standard for determining whether a claimant suffers from
a severe impairment is a low or de minimus standard. See Nicola v. Astrue, 480 F.3d 885, 887 (8th
Cir. 2007) (reversing the decision of the ALJ and holding that a diagnosis of borderline intellectual
functioning should be considered severe when that diagnosis is supported by sufficient medical
evidence). The frequency and consistency of Plaintiff’s complaints as well as the medical evidence
of record suggest that Plaintiff’s chronic back pain had more than a minimal effect on her ability to
work. For these reasons, the court finds that reversal is warranted.
For the aforementioned reasons, substantial evidence does not support the ALJ’s
determination. On remand, the ALJ should send Plaintiff for a consultative physical examination
and obtain imaging studies of her back. Once a proper assessment is completed, the ALJ should
reconsider Plaintiff’s physical impairments and their effect on her ability to engage in substantial
gainful activity.
VI.

Conclusion:
Accordingly, the undersigned concludes 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). This matter should be remanded to
the Commissioner for reconsideration of the issue of Plaintiff’s RFC, based on all relevant evidence,
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including medical records, opinions of treating medical personnel, and Plaintiff’s description of her
own limitations. Dunahoo v. Apfel, 241 F.3d 1033, 1039 (8th Cir. 2001).
IT IS SO ORDERED this 3rd day of February 2012.

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

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