Moline v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable James R. Marschewski on June 26, 2014. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
LEE R. MOLINE
Civil No. 13-3034
CAROLYN W. COLVIN,1 Commissioner
Social Security Administration
Plaintiff, Lee R. Moline, 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
disability insurance benefits (“DIB”) and supplemental security income under Titles II and XVI of the
Social Security Act (hereinafter “the Act”), 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(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).
Plaintiff applied for DIB and SSI on December 6, 2010. (Tr. 11.) Plaintiff alleged an onset date
of June 22, 2010 due to diabetes, high blood pressure, hernia (recently fixed), thyroid problems, kidney
problems, bad knees, and right ankle problems. (Tr. 204.) Plaintiff’s applications were denied initially and
on reconsideration. Plaintiff requested an administrative hearing, which was held on November 15, 2011
in front of Administrative Law Judge (“ALJ”) Glenn Neel. (Tr. 54.) Plaintiff was present to testify and
was represented by counsel. The ALJ also heard testimony from Vocational Expert (“VE”) John Massey.
At the time of the administrative hearing, Plaintiff was 41 years old, and possessed a high school
education and certified nurse’s aide (“CNA”) training. He had also attempted to become certified as an
Carolyn W. Colvin became the Social Security Commissioner on February 14, 2013. Pursuant to Rule
25(d)(1) of the Federal Rules of Civil Procedure, Carolyn W. Colvin has been substituted for Commissioner
Michael J. Astrue as the defendant in this suit.
EMT in 2005, but did not complete that training. (Tr. 59.) The Plaintiff had past relevant work experience
(“PRW”) of over-the-road trucker and CNA. (Tr. 26.)
On May 4, 2012, the ALJ concluded that Plaintiff suffered from the following severe impairments:
“bilateral knee degenerative joint, disease, right ankle degenerative joint disease (status post open
reduction and fixation), obesity, umbilical hernia (status post-repair), non-insulin dependent diabetes
mellitus, chronic renal insufficiency, gout, hypertension, adjustment disorder with mixed anxiety and
depressed mood, pain disorder associated with both psychological factors and general medical condition,
and cluster A and B personality traits. (Tr. 13.) The ALJ found that Plaintiff maintained the residual
functional capacity to sedentary work with the following exceptions: “he cannot climb, kneel, crouch, or
crawl; cannot reach overhead with his left upper extremity; can only occasionally balance, stoop, and
operate foot controls; must avoid concentrated exposure to hazards; is limited to work where interpersonal
contact is incidental to the work performed; is limited to work where the complexity of tasks is learned by
rote, with few variables and use of little judgment; and is limited to work where the supervision required
is simple, direct, and concrete. (Tr. 17.) With the assistance of the VE, the ALJ determined that the
Plaintiff could perform such representative occupations as production assembler (such as lens inserter) and
document preparer. (Tr. 27.)
Plaintiff requested a review by the Appeals Council on May 14, 2012. (Tr. 7.) The Appeals
Council declined review on January 16, 2013. (Tr. 1.)
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. 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: (1) whether the claimant has engaged in substantial gainful activity since
filing his 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 age, education, and experience. 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).
Plaintiff raises three issues on appeal: 1) The ALJ erred by failing to give any consideration to the
equivalence concept in determining that Plaintiff’s knee and ankle problems do not equal Listing §1.02
for Major Dysfunction of a Joint; 2) the ALJ erred at Step 3 when he failed to discuss Listing §12.02 for
organic brain impairment; and 3) the ALJ did not explicitly state that the burden shifts to the
Commissioner in Step 5 of the analysis. Because this Court finds that the ALJ did not fully develop the
record concerning Plaintiff’s gout and chronic renal insufficiency, the specific issues raised by Plaintiff
will not be addressed.
The ALJ has a duty to fully and fairly develop the record. See Frankl v. Shalala, 47 F.3d 935, 938
(8th Cir. 1995)(ALJ must fully and fairly develop the record so that a just determination of disability may
be made). This duty exists "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). Once the ALJ is
made aware of a crucial issue that might change the outcome of a case, the ALJ must conduct further
inquiry to fully develop the record. Snead v. Barnhart, 360 F.3d 834, 838 (8th Cir. 2004.); see e.g. Vossen
v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010) (ALJ’s failure to recontact Commissioner’s consultative
physician to authenticate his report was reversible error when that report supported Plaintiff’s claim).
Further, the Eighth Circuit has repeatedly 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.)
In this case, Plaintiff both testified to and provided objective medical evidence of crucial medical
issues that could change the outcome of the case. Plaintiff testified that he was diagnosed with gout roughly
in his twenties. (Tr. 70.) The medical records in the transcript do not go back that far. However, he was
diagnosed with gout on February 26, 2009 at the Baxter Medical Center Rheumatology Clinic. (Tr. 585590.) At that time it was noted that his prior arthroscopic knee surgeries had not diminished pain and
recurrent effusions. (Tr. 585.) He was diagnosed with gout again on June 22, 2009 at Baxter Regional
Medical Center. (Tr. 435.)Treatment records for his chronic renal insufficiency also start in 2009. (Tr.
656.) At the time of the hearing on November 15, 2014, he testified that he was taking “kidney pills” and
several other medications. (Tr. 72.) In a questionnaire that he filled out for his attorney on November 11,
2011, and referenced during that testimony, Plaintiff listed nine drugs that he was currently taking,
including Indomethacin for gout and Enalapril for kidney issues. It also listed Tramadol and Hydrocodone
APAP for pain. (Tr. 255.)
However, neither of these diagnoses were considered in the Physical RFC completed on January
22, 2011, or in the subsequent requests for medical advice. Nor is there any record of a medical source
statement addressing Plaintiff’s ability to function in the workplace from his treating rheumatologist or
nephrologist. The ALJ did include these diseases in the Plaintiff’s list of severe impairments. However,
he dismissed the effect of both diseases for lack of objective evidence and failure to seek treatment when
assessing the Overall RFC. (Tr. 22-23.) Once the ALJ was made aware of a crucial issue that might change
the outcome of a case, he had a duty to conduct further inquiry to fully develop the record. He did not.
Further, because the record was not developed, the ALJ apparently assessed the effects of Plaintiff’s gout
and chronic renal sufficiency without the benefit of a medical opinion as to how these diseases might affect
Plainitff’s ability to function in the workplace. Both of these issues require a remand.
Gout is classified as a type of inflammatory arthritis. http://www.cdc.gov/arthritis/basics/gout.htm.
“Gout is precipitation of monosodium urate crystals into tissue, usually in and around joints, most often
causing recurrent acute or chronic arthritis.” http://www.merckmanuals.com/professional/
(last visited Jun. 25, 2014.) Acute gout will typically manifest as “an acutely red, hot, and swollen joint
with excruciating pain.” http://www.cdc.gov/arthritis/basics/gout.htm. (last visited Jun. 25, 2014.)
“Unlike most types of arthritis, which are chronic, gout is typically episodic, characterized by
painful flares lasting days/weeks followed by long periods without symptoms.” Id. Gout can manifest in
four stages: asymptomatic tissue deposition, acute flares, intercritical segments, and chronic disease. Two
of these four stages do not produce clinical symptoms. In the asymptomatic stage, the patient has no
symptoms, they do have hyperuricemia, and the deposition of crystals is causing damage. The intercritical
segments occur between flares. In these segments, the hyperuricemia and crystal deposition continue. Id
Risk factors for gout include cardiovascular disease, diabetes, renal disease, hypertension, obesity,
and prior joint injury. Id.; see also http://gouteducation.org/medical-professionals/diagnosing-gout/
gout-triggers/. (last visited Jun. 25, 2014.)
“Chronic kidney disease (CKD) is long-standing, progressive deterioration of renal function.”
kidney_disease.html?qt=kidney%20disease&alt=sh (last visited Jun. 26, 2014.) Common causes of CKD
include diabetic nephropathy and Metabolic Syndrome (hypertension and Type 2 Diabetes in tandem). Id.
Patient’s will typically be clinically asymptomatic until the disease progresses past the point of moderate
renal insufficiency. Id.
On remand, the ALJ is directed to fully and fairly develop the record as to Plaintiff’s gout and
chronic renal insufficiency. As part of this development the ALJ must recontact Plaintiff’s treating
nephrologist and rheumatologist for clarification on Plaintiff’s gout and chronic renal insufficiency. The
ALJ is further directed to obtain an RFC assessment from both specialists. Once this information is
obtained, the Plaintiff’s Overall RFC should be re-assessed, and the information presented to a VE.
Accordingly, we conclude 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).
DATED this 26th day of June 2014.
HON. JAMES R. MARSCHEWSKI
CHIEF UNITED STATES MAGISTRATE JUDGE
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