Spencer v. Social Security Administration Commissioner
Filing
14
MEMORANDUM OPINION. Signed by Honorable Mark E. Ford on October 26, 2015. (rg)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HARRISON DIVISION
JASON G. SPENCER
PLAINTIFF
VS.
Civil No. 3:14-cv-03073-MEF
CAROLYN W. COLVIN,
Commissioner of Social Security Administration
DEFENDANT
MEMORANDUM OPINION
Plaintiff, Jason G. Spencer, 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 October 28, 2011, alleging an onset date of August 1,
2010, due to depression, social anxiety, arthritis in his back, migraines, bone spurs growing on his
spine, and bulging discs in his upper back. (T. 191) Plaintiff’s application was denied initially and
on reconsideration. (T. 75-77, 80-82) Plaintiff then requested an administration hearing, which
was held via teleconference where the Plaintiff was located in Harrison, Arkansas, and the
Administrative Law Judge (“ALJ”), Hon. Ronald L. Burton, was located in Fort Smith, Arkansas
on December 4, 2012. Plaintiff was present and had a representative present.
1
At the time of the hearing, Plaintiff was 44 years of age and had the equivalent of a high school
education. (T. 36) Plaintiff’s past relevant work experience included working as a building
maintenance supervisor from November 1994 through May 2001, an invoicing supervisor from
May 2001 through December 2008, and an invoicing associate from December 2008 through
September 2011. (T. 181)
On May 23, 2013, the ALJ found Plaintiff’s depression and disorder of the thoracic spine
severe. (T. 15) 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 August 1, 2010 1, through the date of his Decision issued May 23, 2013. The
ALJ determined Plaintiff had the RFC to perform sedentary and light work except that he did not
have the attention span to perform skilled work and could not have regular contact with coworkers
with whom he was not well acquainted. Plaintiff could not interact with the public. He could
perform unskilled work that was task oriented and performed in small groups, meaning 20 or 25
employees or less. (T. 17)
Plaintiff appealed this decision to the Appeals Council, but said request for review was denied
on June 26, 2014. (T. 1-6) Plaintiff then filed this action on July 18, 2014. (Doc. 1) This case is
before the undersigned pursuant to consent of the parties. (Doc. 6) Both parties have filed briefs,
and the case is ready for decision. (Doc. 12 and 13)
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
1
The ALJ determined Plaintiff engaged in substantial gainful activity from August 1, 2010, through July 25, 2011,
and rendered him not disabled during that time period. (T. 14)
2
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
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 her disability by
establishing a physical or mental disability that has lasted at least one year and that prevents her
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 her disability, not simply her 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
3
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).
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 August
1, 2010, through the date of the ALJ’s Decision issued May 23, 2013. Plaintiff raises three issues
on appeal, which can be summarized as: (A) the ALJ erred in the weight assigned to the treating
physician’s medical source statement; (B) the ALJ erred in step-two of his analysis; and, (C) the
ALJ’s Decision was not supported by substantial evidence. (Doc. 12, pp. 11-15) The undersigned
concludes that disposition of the first issue regarding the ALJ’s error in assignment of the weight
to the treating physician’s medical source statement and development of record requires reversal
and remand, so the remaining issues are not addressed herein.
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.
Fully and Fairly Develop the Record:
In making his RFC determination the ALJ rejected the medical source statements provided by
Plaintiff’s treating physician, Dr. Kevin Jackson, on September 6 and September 24, 2012, as the
medical source statements were inconsistent with Dr. Jackson’s medical records and other
treatment records. (T. 19) The ALJ instead relied on the RFC assessment performed on December
15, 2011, by non-examining state agency consultant Dr. Stephen A. Whaley. (T. 20) The Court
4
does not dispute that Dr. Whaley is well versed in the area of social security, but his opinion was
issued before Plaintiff’s car accident in which he suffered multiple thoracic fractures. Although
Dr. Whaley’s opinion might have been a true depiction of Plaintiff’s physical capabilities at the
time he completed the assessment, it was not a true depiction of what the Plaintiff could perform
following his motor vehicle accident. In order for the ALJ to have made an informed decision, he
should have ordered an additional physical consultative examination.
The ALJ owes a duty to a Plaintiff to develop the record fully and fairly to ensure his decision
is an informed decision based on sufficient facts. See Stormo v. Barnhart, 377 F.3d 801, 806 (8th
Cir. 2004). In determining whether an ALJ has fully and fairly developed the record, the proper
inquiry is whether the record contained sufficient evidence for the ALJ to make an informed
decision. See Haley v. Massanari, 258 F.3d 742, 748 (8th Cir. 2001). The ALJ is only required to
develop a reasonably complete record. See Clark v. Shalala, 28 F.3d 828, 830 (8th Cir. 1994).
Before addressing the development of the record, the Court must first address Plaintiff’s pain
seeking behavior. Plaintiff had a longstanding battle with his Opioid addiction. (T. 355) Dr.
Jackson tapered off his medications and refused to dispense any pain medications. (T. 410, 439)
Moreover, Plaintiff sought treatment from Dr. William S. Piechal for chronic pain management.
(T. 388) Plaintiff also sought treatment from David Bailey, LCSW, for his depression and anxiety
following a suicide attempt in August 2010. (T. 262, 293, 315, 317) Plaintiff continued to struggle
with emotional problems and his addiction.
Plaintiff was involved in a motor vehicle accident in February 2012. He suffered compression
fractures of at least T3, T4, and T5 and was admitted to the hospital. (T. 768) A computerized
tomography (“CT”) scan performed on February 13, 2012, showed his T1 as well as other vertebral
bodies could be involved. There were “posterior spinous process fractures of the T3 and T4, the
5
T3, T4, and T5 thoracic vertebral body compression fractures appear[ed] to involve[d] although
m[ight] not be restricted to each superior endplate.
Neurosurgical consultation [wa]s
recommended as it appear[ed] that force [h]as been transmitted posteriors to involve at least 2
posterior spinous processes.” (T. 768)
On February 14, 2012, a Magnetic Resonance Imaging (“MRI”) of the thoracic spine showed
acute trabecular microfracture of the T7 corpus without significant loss of height. Acute superior
endplate compression fracture with minimal loss of height at T1 and T2 and mild loss of height at
T3, T4, and T5. Nondisplaced fractures through the posterior aspect of the T3 spinous process.
(T. 620) Interspinous ligamentous sprain from C6 through T4 and probably at T4-5. Ligamentum
flavum appeared disrupt at C7-T1, suggesting that this might be an unstable segment. (T. 620)
On February 15, 2012, Plaintiff’s discharge diagnosis was thoracic fracture - T7 corpus
trabecular micro-fracture, anterosuperior end plate compression fractures of T1 and 2 without loss
of height; T3, 4, 5, with mild loss of height; nondisplaced fracture of the posterior aspect of the T3
spinous process; tiny thoracic syrinx T7 through T11; and, degenerative disc disease with small
disc protrusion at T8-9. (T. 530) Plaintiff had problems with hypertension at the hospital, and he
was restarted on his medication. (T. 531)
A nurse’s note from February 28, 2012, recommended Plaintiff come in for an appointment to
Dr. Piechal’s office after receiving a letter from someone who was concerned about his use of
medication. (T. 973) While Plaintiff wanted to be pain free, the nurse informed him that with his
condition he would never be pain free and their job was to make him comfortable. (T. 973) The
nurse also indicated frequent periods of bed rest were ordinary. (T. 973) The nurse directed him to
take ibuprofen, ice the lumbar area, and take the narcotic as directed at times when he could be
supine and rest with ice to the painful area. (T. 973)
6
In March 2012, Plaintiff indicated to Dr. Jackson he wanted to be prescribed a muscle relaxer,
because he wanted to stay away from pain medication. (T. 622) In May 2012, Plaintiff sought
treatment from Dr. Ira Chatman at Interventional Pain Management Associates due to mid back,
neck, shoulder, and head pain. (T. 946) On May 1, 2012, Dr. Chatman observed Plaintiff had a
grossly unstable cervical spine, bilateral palpation of the cervical facets was painful, and Plaintiff
had a greatly reduced range of motion. (T. 956) Upon examination of Plaintiff’s thoracic spine,
Dr. Chatman observed Plaintiff had palpation of bilateral thoracic facets, reproduced back pain;
hyperextension; bilateral facet loading maneuvers, reproduced mid back pain; and, multiple
palpable trigger points. (T. 956) Plaintiff’s examination of his lumbar spine showed greatly
reduced range of motion in most directions; hyperextension at lumbar spine, reproduced back pain;
bilateral facet loading maneuvers, reproduced back pain; bilateral rotation caused pain; and,
multiple trigger point palpable in bilateral paraspinal muscles; however, stooping forward slightly
gave the Plaintiff some relief. (T. 956) Plaintiff’s left knee was tender to palpation. (T. 957)
Plaintiff was prescribed Suboxone. (T. 958)
Plaintiff overdosed on May 9, 2012, after running out of Suboxone. Plaintiff was upset and
subsequently took five Clonazepam, instead of one, and four Gabapentin to calm down. (T. 818,
825, 828) Following Plaintiff’s overdose, Dr. Chatman ordered Plaintiff to perform a pill count.
(T. 942) On October 29, 2012, Plaintiff reported to Dr. Jackson that he attended Alcoholics
Anonymous meetings and had been sober for a week and a half. (T. 983)
A claimant’s misuse of medications is a valid factor in an ALJ’s credibility determinations.
See Anderson v. Shalala, 51 F.3d 777, 780 (8th Cir. 1995) (observing that claimant’s “drugseeking behavior further discredits her allegations of disabling pain”); Anderson v. Barnhart, 344
F.3d 809, 815 (8th Cir. 2003). However, unlike Anderson, the Plaintiff’s medical evidence
7
substantiated Plaintiff’s subjective complaints of pain after his accident, and the ALJ owed a duty
to the Plaintiff to fully and fairly develop the record.
In determining Plaintiff’s RFC, the ALJ utilized the physical RFC assessment Dr. Whaley
conducted. After reviewing the records available to him, Dr. Whaley determined Plaintiff could
occasionally lift twenty pounds; frequently lift ten pounds; sit, stand, and/or walk about six hours
in an eight hour workday; and, he was occasionally limited to climbing, balancing, stooping,
kneeling, crouching, and crawling. (T. 464-495) Dr. Whaley determined Plaintiff had the RFC to
perform light work with postural limitations. (T. 500)
While the ALJ agreed with Dr. Whaley that the Plaintiff could perform work at a light
exertional level, the ALJ gave little weight to Dr. Whaley’s postural limitations. The ALJ based
his decision on the fact that the Plaintiff indicated in his function report he did not have any
problems with stair climbing, kneeling, squatting, or bending. (T. 20, 199) Further, the Plaintiff’s
testimony did not show he had substantial difficulties with postural activities other than to state
his knees and lower back hurt when he bent over. (T. 20)
Whereas Dr. Whaley opined Plaintiff could perform light work, Dr. Jackson determined
Plaintiff’s limitations would prevent him from even working a sedentary job. On September 6,
2012, Dr. Jackson perform a physical capabilities evaluation. (T. 975) Dr. Jackson indicated
Plaintiff could sit for three hours in a workday and stand/walk less than one hour in a workday. (T.
975) Plaintiff would need an opportunity to alternate sitting and standing throughout the day. (T.
975) Plaintiff could not adequately handle pushing and pulling. (T. 975) Plaintiff could frequently
lift less than ten pounds, occasionally lift eleven to fifty pounds, and never lift over fifty pounds.
(T. 976) Plaintiff could frequently balance, but he could never climb or crawl and only occasionally
stoop, kneel, crouch, or reach above the shoulder level. (T. 976) Plaintiff was mildly limited to
8
being around unprotected heights, moving machinery, driving automotive equipment, and
exposure to dust, fumes, and gases; however, he was moderately restricted from exposure to
marked changes in temperature and humidity. (T. 976) Plaintiff suffered from pain due to multiple
spine compression and rib fractures. (T. 977) Plaintiff’s pain and/or its side effects of medication
moderately affected his attention and concentration, and Dr. Jackson believed Plaintiff’s pain
would prevent the him from working full time even at a sedentary position. (T. 977-978)
On September 24, 2012, Dr. Jackson filled out a form entitled cervical and lumbar spine
medical assessment questionnaire. (T. 1016) Dr. Jackson had treated the Plaintiff since 2006 for
degenerative disc disease of the cervical, thoracic, and lumbar spine, and compression fractures of
the thoracic spine. (T. 1016) Plaintiff suffered from chronic pain in his back and neck radiating
around his chest or right side. Plaintiff had tenderness, muscle spasms, muscle weakness, chronic
fatigue, weight change, sensory changes, impaired sleep, abnormal posture, atrophy, dropped
things, and a reduced grip strength. (T. 1016)
Plaintiff had significant limited range of motion in his cervical spine exhibiting seventy percent
extension, left and right rotation, left and right lateral bending, and fifty percent flexion. (T. 1016)
Plaintiff also had chronic headaches, photophobia associated with his chronic pain of his cervical
spine, depression and anxiety. (T. 1016-1017) Associated with his headaches Plaintiff had
photosensitivity, inability to concentrate, exhaustion, mood changes, and mental confusion. (T.
1017) Plaintiff had approximately seven headaches per week lasting approximately four hours.
His headaches subsided if he lied down, took medication, was in a quiet place, or in a dark room.
(T. 1017) Dr. Jackson indicated Plaintiff’s response had been minimal to medications. He did not
consider Plaintiff to be a malingerer. (T. 1017)
9
Dr. Jackson opined Plaintiff’s pain and other symptoms would constantly interfere with his
attention and concentration needed to perform even simple work tasks. Plaintiff was also incapable
of a low stress jobs due to his difficulty concentrating from his pain and head injury. (T. 1018)
Plaintiff could only walk two city blocks without resting or being in severe pain. (T. 1018) During
an eight-hour workday with normal breaks, Dr. Jackson opined Plaintiff could sit for about two
hours and stand/walk less than two hours. (T. 1018) Plaintiff would need to get up every sixty
minutes and walk for approximately two minutes. (T. 1018) Plaintiff would also need to shift
positions at will and have unscheduled breaks every hour during which he would need to rest his
head on a high back chair. (T. 1018)
Dr. Jackson opined Plaintiff could occasionally lift less than ten pounds, rarely lift twenty
pounds, and never lift fifty pounds. (T. 1019) Plaintiff could rarely look down or up, occasionally
turn his head to the right or left, and hold his head in a static position. (T. 1019) Plaintiff could
occasionally twist, stoop, crouch, squat, and climb stairs and rarely climb ladders. (T. 1019) Due
to Plaintiff’s impairments, he would likely miss more than four days per month. Dr. Jackson
indicated the earliest date of the symptoms and limitations in the questionnaire applied given the
medical history, clinical history, and medical records was June 20, 2012. (T. 1020)
The ALJ discounted Dr. Jackson’s medical source statements because he found them to be not
fully consistent with his treatment records or those from other treating physicians (T. 19), because
they did not take into account Plaintiff’s pain seeking behavior, and because they were inconsistent
with Plaintiff’s function report. (T. 20) The Eighth Circuit has recognized “an ALJ may discount
or even disregard the opinion of a treating physician where other medical assessments are
supported by better or more thorough medical evidence, or where a treating physician renders
10
inconsistent opinions that undermine the credibility of such opinions.” Wildman v. Astrue, 596
F.3d 959, 964 (8th Cir. 2010) (alteration in original) (internal quotation omitted).
Discounting Dr. Jackson’s medical source statements causes the Court concern. First, Dr.
Jackson had been treating the Plaintiff since 2006, and he did not find the Plaintiff to be a
malingerer. Further, for the ALJ to discount Dr. Jackson’s opinion because his findings were
inconsistent with the function report was error since Plaintiff’s function report was completed in
November 2011, and he subsequently suffered multiple thoracic fractures in February 2012. The
ALJ should reassess Dr. Jackson’s medical source statements upon remand. If, on remand, the
ALJ determines Dr. Jackson’s medical source statements continued to be inconsistent with the
treatment records, he should elaborate on the specific inconsistencies.
While the Plaintiff exhibited signs of pain seeking behavior, it did not negate the fact the ALJ
based his Decision on an RFC performed in 2011, which was prior to the motor vehicle accident
in which Plaintiff suffered multiple thoracic fractures. For the ALJ to discount Dr. Jackson’s
reports and base his RFC upon Dr. Whaley’s 2011 opinion was error. There was no current
medical opinion for the ALJ to base his RFC upon to show what the Plaintiff was actually capable
of performing in a competitive work environment. In McCoy, 683 F.2d at 1147 (abrogated on
other grounds by Forney v. Apfel, 524 U.S. 266, 267, 118 S.Ct. 1984, 141 L.Ed.2d 269 (1998)),
the Eighth Circuit noted that the residual functional-capacity evaluation must be a realistic
evaluation of Plaintiff’s ability to work “day in and day out ... in the sometimes competitive and
stressful conditions in which real people work in the real world.” The ALJ should have ordered an
additional consultative examination in order to have made an informed decision regarding
Plaintiff’s RFC determination. See Gasaway v. Apfel, 187 F.3d 840, 842 (8th Cir. 1999); Freeman
v. Apfel, 208 F.3d 687, 692 (8th Cir. 2000) (“[I]t is reversible error for an ALJ not to order a
11
consultative examination when such an evaluation is necessary for him to make an informed
decision.” (citation and internal quotes omitted)).
When Plaintiff suffered multiple thoracic fractures, the results of the CT scan of his thoracic
spine indicated a neurosurgical consultation was recommended; however, the Court was unable to
determine if a consultation was performed. (T. 768) Therefore, on remand, the ALJ is directed to
order a neurosurgical consultation complete with a detailed RFC (a check-the-box form is not
appropriate). The RFC should explain, based upon the evidence, what the Plaintiff can and cannot
perform; the amount of weight he can lift; and, set forth any limitations and restrictions.
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 26th day of October, 2015.
/s/ Mark E. Ford
HONORABLE MARK E. FORD
UNITED STATES MAGISTRATE JUDGE
12
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?