Gilpin v. Social Security Administration Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on November 21, 2012. (lw)

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
ANDREW W. GILPIN

PLAINTIFF

v.

CASE NO.

11-3091

MICHAEL J. ASTRUE, Commissioner
of Social Security Administration

DEFENDANT

MEMORANDUM OPINION
Plaintiff 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 a
period of disability and disability insurance benefits (DIB) and supplemental security income
(“SSI”) under Title II of the Social Security Act (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:
The plaintiff filed an applications for DIB and SSI on July 30, 2007, alleging an onset

date of April 1, 2006, due to plaintiff’s ruptured disc in back (T. 152). Plaintiff’s applications
were denied initially and on reconsideration. Plaintiff then requested an administrative hearing,
which was held on March 23, 2009. Plaintiff was present and represented by counsel.
At the time of the administrative hearing, plaintiff was 26 years of age and possessed a
High School education. The Plaintiff had past relevant work (“PRW”) experience as a heating
and cooling technician (T. 55).

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On August 13, 2009, the Administrative Law Judge (“ALJ”) concluded that, although
severe, plaintiff’s stenosis and compression of the nerve root did not meet or equal any Appendix
1 listing. T. 51-52. The ALJ found that plaintiff maintained the residual functional capacity
(“RFC”) to perform sedentary work with additional restrictions. T. 52. With the assistance of a
vocational expert, the ALJ then determined Plaintiff could perform the representative
occupations of production work, credit authorizers, and interviewers. T. 56.
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 that prevents him from engaging in any substantial gainful activity. Pearsall v.
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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. 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:

A. Step Two
The Plaintiff fist contends that the ALJ committed error in her step two evaluation of the
Plaintiff’s claims because she did not consider the other impairments to his back. The ALJ found
the Plaintiff had severe impairments of stenosis and compression of the nerve root at L5. (T. 51).
At step two of the sequential evaluation process, the claimant bears the burden of proving
that he has a severe impairment. Nguyen v. Chater, 75 F.3d 429, 430-431 (8th Cir. 1996). An
impairment or combination of impairments is not severe if there is no more than a minimal effect
on the claimant’s ability to work. See, e.g., Nguyen, 75 F.3d at 431. A slight abnormality (or a
combination of slight abnormalities) that has no more than a minimal effect on the ability to do
basic work activities is not a severe impairment. SSR 96-3p, 1996 WL 374181 (1996); SSR 85-3-

28, 1985 WL 56856 (1985).
The Plaintiff was referred by his treating physician to an orthopedic specialist, Dr.
Schlesinger, who saw the Plaintiff on August 14, 2006. After an examination, Dr. Schlesinger’s
report notes states that he reviewed the multiple images of the MRI of the lumbar spine
independent of the radiologist and that his impression was:
There are multilevel disc herniations. The radiologist did not read this out,
but I think there is a herniated disc at L4-5. There is spinal stenosis at L4-5 and
L5-S1 to the left. I think there is disc herniation at L4-5 with inferior migration
along the medial pedicle of L5. (T. 256).
Dr. Schlesinger also felt that the Plaintiff was not a good candidate for any conservative
care (T. 257) and ordered a myelogram/CT scan which was performed on March 30, 2007 which
confirmed “severe spinal stenosis at L4-5 bilaterally with a superimposed left L4-5 disc
herniation inferiorly migrating down along the pedicle of L5 with compression the left L5 root
along its course. At the L5-S1 level, there is lateral recess stenosis with also what seems to be a
disc herniation compressing the left S1 root down along the medial pedicle of S1." (T. 252, 258).
Dr. Schlesinger recommended surgical decompression and discectomy which was to
encompass both the L4-5 disc but also the L5-S1 disc. (Id.). The Plaintiff was in favor of
surgical treatment (Id.) but the Plaintiff had no insurance coverage (T. 279) and was never able to
obtain the needed surgery. (T. 238). The Plaintiff did establish by abundant proof that his
impairments at the L5-S1 disc was likewise severe.
B. Step Three
The Commissioner’s regulations require him to determine at step three whether the
impairment(s) meet or equal an impairment in the listings. See McCoy v. Schweiker, 683 F.2d

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1138, 1141-42 (8th Cir. 1982); 20 C .F.R. § § 404.1520, 416.920 (2003); King v. Astrue, 564 F.
3d 978 (8th Cir. 2009).
The ALJ determined that the Plaintiff did not have an impairment or combination of
impairments that meets or medically equals one of the listed impairments. (T. 51) The ALJ does
not specifically delineate how the Plaintiff does not meet his burden but just states as follows:
The claimant’s stenosis and compression of the nerve root at L5 does not
meet or equal the requirements... of Listing 1.04 in that the medical records did
not demonstrate compromise of a nerve root or spinal cord with evidence of nerve
root compression characterized by neuro-anatomic distribution of pain, limitation
of motion of the spine, motor loss accompanied by sensory or reflex loss and
positive straight-leg raising test; spinal arachnoiditis; or lumbar spinal stenosis
resulting in pseudoclaudication established by finding on appropriate medically
acceptable imaging, manifested by chronic nonradicular pain and weakness and
resulting in an inability to ambulate effectively as defined in 1.00B2b.

Listing 1.04 provides as follows:
Disorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis,
spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral
fracture), resulting in compromise of a nerve root (including the cauda equina) or
the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic1
distribution of pain, limitation of motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower back, positive straight-leg
raising test (sitting and supine); or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report
of tissue biopsy, or by appropriate medically acceptable imaging, manifested by
severe burning or painful dysesthesia, resulting in the need for changes in position
or posture more than once every 2 hours; or

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[For pain to be distributed in a neuro-anatomic distribution, it should correspond to the area enervated by a
specific nerve root in the spine.] See Barbera v. Commissioner of Social Sec. 2012 WL 2458284, 12 (E.D.Mich.)
(E.D.Mich.,2012)

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C. Lumbar spinal stenosis resulting in pseudoclaudication, established by
findings on appropriate medically acceptable imaging, manifested by chronic
nonradicular pain and weakness, and resulting in inability to ambulate effectively,
as defined in 1.00B2b.
It is not argued that subparagraph B or C is applicable and the court will only look at
subparagraph A.
1. Nerve Root Compression:
Dr. Burnett, the Plaintiff treating physician, referred the Plaintiff to Dr. Schlesinger, a
neurologist, who first diagnosed the Plaintiff with multiple disc herniations (T. 256) and
significant neurologic deficit (T. 257) in August 2006. After a myelogram/CT scan Dr.
Schlesinger stated that the Plaintiff had “severe spinal stenosis at L4-5" with a disc herniation at
L-4-5 with the nerve root compressed along its course. He also stated that the L5-S1 had a lateral
stenosis “with what seems to be a disc herniation compressing the left S1 root down along the
medial pedicle of S1.” (T. 252).
a. Neuro-anotomic pain
On July 30, 2006 the Plaintiff presented to the Baxter Regional Medical Center
complaining of low back pain for six month (Plaintiff was injured in December 2005) radiating
down his left leg which had become worse recently with numbness in his foot. (T. 216). This
complaint of pain persist throughout the Plaintiff’s medical records.
b. Limitation of motion of the spine:
Dr. Tammy Tucker performed a physical examination of the Plaintiff on July 1, 2008 and
found that the Plaintiff had “Limited Motion-Spine noted to flexion more than extension and
limited 30-40% in all planes.” (T. 246). This was also the finding of Dr. Schlesinger in August

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2006. T. 254.
c. Motor Loss
The regulation require that motor loss be exhibited by atrophy with associated muscle
weakness or muscle weakness. Dr. Tucker’s examination of July 1, 2008 showed that the “left
calf measure 14 cm with marked atrophy and muscle delineation lost”. She also noted that “L2L4 disc level-quadricaps strength-decreased on the left” Dr. Tucker also noted that the Plaintiff
had “decreased vibratory sense on the left almost absent” and “absent monofilamint over the
great toe and foot to almost the mid foot” and that the Plaintiff could not do heel walking without
support for more than “a step or 2". (T. 246).
d. Straight Leg Test
Dr. Schlesinger administered a Straight Leg Test to the Plaintiff during his examination
on August 14, 2006 which was “positive on the left and negative on the right”. T. 255.
A consultive examination was performed by Dr. Oberlander on September 26, 2007 but
Dr. Oberlander report does not address any of the requirements listed above except that he noted
“normal sensory appreciation throughout” and that he did note weakness in the left leg. He
concluded that his findings were consistent with a left sided L5 sciatic nerve injury. T. 223. The
ALJ does not reference how Dr. Oberlander’s opinions justify his reasoning at this step. It is
impossible for the court to tell exactly how the ALJ arrived at his conclusion that the Plaintiff did
not establish that he met the disability requirements of Listing 1.04.
C. RFC
The ALJ determined that the Plaintiff had the RFC to perform sedentary work except the
claimant has occasional postural limitations, meaning that the claimant can only occasionally
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climb ladders, ropes, and scaffolds, balance, stoop, kneel, crouch, or crawl, and the claimant
must be able to stand and/or sit alternate positions hourly. (T. 52).
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. §
404.1545(a)(1). It is defined as the individual’s maximum remaining ability to do sustained
work activity in an ordinary work setting “on a regular and continuing basis.” 20 C.F.R. §§
404.1545 and 416.945; Social Security Ruling (SSR) 96-8p (1996). It is assessed using all
relevant evidence in the record. Id. This includes medical records, observations of treating
physicians and others, and the claimant’s own descriptions of her limitations. Guilliams v.
Barnhart, 393 F.3d 798, 801 (8th Cir. 2005); Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th
Cir. 2004). Limitations resulting from symptoms such as pain are also factored into the
assessment. 20 C.F.R. § 404.1545(a)(3). The United States Court of Appeals for 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, an ALJ’s determination concerning a
claimant’s RFC must be supported by medical evidence that addresses the claimant’s ability to
function in the workplace.” Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003).
The ALJ stated that the state consultant’s opinion was given “great weight”. (T. 54). The
Physical RFC assessment that the ALJ gives great weight to is the opinion of Dr. Steve Owens
dated October 11, 2007. Dr. Owen was of the opinion that the Plaintiff could lift 10 pounds
occasionally and less than 10 pounds frequently. That he could stand and/or walk for at least 2
hours and that he could sit for 6 hours in an 8 hour workday. He found that the Plaintiff had no
limitations on his ability to push and/or pull with his lower extremities. T. 226. Paragraph 6 of
the SSA for ask the Doctor to explain how and why the evidence supports your conclusion and to
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cites specific facts upon which his conclusion is based. Dr. Owens left this paragraph blank. (Id.)
Dr. Owens felt that the Plaintiff only had occasional Postural Limitations but again offered no
explanation documenting his opinion. (T. 227). Dr. Owens also felt that the Plaintiff would have
no environmental limitations but it is hard to see how an individual with multiple disc
herniations could work in an environment that was vibrating. (T. 229).
We have 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.
Id. Cox v. Barnhart 345 F.3d 606, 610 (C.A.8 (Ark.),2003). Therefore, given the limited range
of motion in plaintiff’s lumbar spine and loss of sensation in his left lower extremity, and the
abundant medical evidence of the Plaintiff’s treating doctors the court does not find Dr. Owens’
opinion to constitute substantial evidence of plaintiff’s RFC.
The ALJ totally discounted the MSS of Dr. Tucker, the Plaintiff’s treating physician. The
opinion of a treating physician is accorded special deference and will be granted controlling
weight when well-supported by medically acceptable diagnostic techniques and not inconsistent
with other substantial evidence in the record. 20 C.F.R. § 404.1527(d)(2); Prosch v. Apfel, 201
F.3d 1010, 1012-13 (8th Cir. 2000). In this case, however, while Dr. Tucker did see the Plaintiff,
it appears that she only saw him one time and rendered her opinion after her examination. While
Dr. Tucker’s opinion is very detailed she still only saw the Plaintiff on one occasion.
The ALJ did not obtain any Physical RFC from the Plaintiff’s long time treating
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physician, Dr. Burnett, or the treating specialist, Dr. Schlesinger. 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). “An ALJ should recontact a treating or consulting physician
if a critical issue is undeveloped. See Ellis v. Barnhart, 392 F.3d 988, 994 (8th Cir.2005).”
Johnson v. Astrue, 627 F.3d 316, 319–20 (8th Cir.2010).
The court believes remand is necessary to allow the ALJ to submit questions to the
Plaintiff’s treating physicians concerning his ability to do work related activities. The court
further believes that a more complete explanation is required concerning the ALJ determination
that the Plaintiff did not meet the listing requirements of 1.04.
IV.

Conclusion:
Accordingly, the court finds that the ALJ’s decision is not supported by substantial

evidence, and therefore, the denial of benefits to the Plaintiff should be reversed and this matter
should be remanded to the Commissioner for further consideration.

Dated this November 19, 2012.

/s/ J. Marschewski
HONORABLE JAMES R. MARSCHEWSKI
CHIEF U. S. MAGISTRATE JUDGE

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