Sturdy v. Social Security Administration Commissioner
MEMORANDUM OPINION. Signed by Honorable Erin L. Setser on July 22, 2011. (tg)
IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
TIMOTHY J. STURDY
MICHAEL J. ASTRUE,
Commissioner of the Social Security Administration
Plaintiff, Timothy J. Sturdy, brings this action pursuant to 42 U.S.C. § 405(g), seeking
judicial review of a decision of the Commissioner of the Social Security Administration
(Commissioner) denying his claims for a period of disability and disability insurance benefits
(DIB) and supplemental security income (SSI) benefits under the provisions of Titles II and XVI
of the Social Security Act (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).
Plaintiff protectively filed his current applications for DIB and SSI on November 28,
2006, alleging an inability to work since January 3, 2005, due to back problems. (Tr. 112-113,
117). An administrative hearing was held on September 4, 2009, at which Plaintiff appeared
with counsel and testified. (Tr. 25-46).
By written decision dated September 28, 2009, the ALJ found that during the relevant
time period, Plaintiff had an impairment or combination of impairments that were severe. (Tr.
13). Specifically, the ALJ found Plaintiff had the following severe impairments: compression
fracture at T-12 and low back pain. (Tr. 13). However, after reviewing all of the evidence
presented, he determined that Plaintiff’s impairments did not meet or equal the level of severity
of any impairment listed in the Listing of Impairments found in Appendix I, Subpart P,
Regulation No. 4. (Tr. 13). The ALJ found Plaintiff retained the residual functional capacity
(RFC) to perform light work, except that he must avoid concentrated exposure to vibrations and
hazards, such as moving machinery and heights. (Tr. 14). With the help of a vocational expert
(VE), the ALJ determined Plaintiff could perform other work as an electrical assembler, small
parts assembler, and collator operator. (Tr. 19).
Plaintiff then requested a review of the hearing decision by the Appeals Council, which
denied that request on May 27, 2010. (Tr. 1-4). Subsequently, Plaintiff filed this action. (Doc.
1). This case is before the undersigned pursuant to the consent of the parties. (Doc. 3). Both
parties have filed appeal briefs, and the case is now ready for decision. (Docs. 8, 12, 15).
This Court’s role is to determine whether the Commissioner’s findings are supported by
substantial evidence on the record as a whole. Ramirez v. Barnhart, 292 F. 3d 576, 583 (8th Cir.
2002). 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. The ALJ’s decision must be
affirmed if the record contains substantial evidence to support it. Edwards v. Barnhart, 314 F.
3d 964, 966 (8th Cir. 2003). 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. Haley v. Massanari, 258 F.3d 742, 747 (8th Cir. 2001). 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 decision of the
ALJ must be affirmed. Young v. Apfel, 221 F. 3d 1065, 1068 (8th Cir. 2000).
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 also 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)(D). A Plaintiff must show that his disability, not simply his impairment, has lasted for
at least twelve consecutive months.
The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant had engaged in substantial
gainful activity since filing his claim; (2) whether the claimant had a severe physical and/or
mental impairment or combination of impairments; (3) whether the impairment(s) met or equaled
an impairment in the listings; (4) whether the impairment(s) prevented the claimant from doing
past relevant work; and (5) whether the claimant was able to perform other work in the national
economy given his age, education, and experience. See 20 C.F.R. §416.920. Only if the final
stage is reached does the fact finder consider the Plaintiff’s age, education, and work experience
in light of his residual functional capacity (RFC). See McCoy v. Schweiker, 683 F.2d 1138,
1141-42 (8th Cir. 1982); 20 C.F.R. §416.920.
Of particular concern to the undersigned is the ALJ’s RFC determination. RFC is the
most a person can do despite that person’s limitations. 20 C.F.R. § 404.1545(a)(1). 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 his
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 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). “T]he ALJ is [also] required
to set forth specifically a claimant’s limitations and to determine how those limitations affect his
In the present case, Plaintiff was seen by Dr. Ashish Mathur, a physician at Community
Physicians Group - Gentry Medical Center, a total of thirty-one times, and Dr. John Caswell, of
the same clinic, one time, in 2008 and 2009. (Tr. 388-389, 391-395, 397-400, 401, 403-416,426445, 447-450, 453-457, 449-468, 470-472, 534-541, 544, 546, 548-549). However, the ALJ
gave Dr. Mathur’s opinion “little weight,” stating that “the doctor apparently relied quite heavily
on the subjective report of symptoms and limitations provided by the claimant, and seemed to
uncritically accept as true most, if not all, of what the claimant reported (Exhibit 12F).” (Tr. 18).
The ALJ further stated that the course of treatment pursued by Dr. Mathur had not been
consistent with what one would expect if Plaintiff were truly disabled, as the doctor reported.
(Tr. 18). On the other hand, the ALJ gave great weight to the opinions of the “consultative
examiners and medical consultants of the State Disability Determination Services (DDS),” and
concluded that the medical evidence and opinions were consistent with the ALJ’s RFC. (Tr. 18).
“A treating source’s opinion is to be given controlling weight where it is supported by
acceptable clinical and laboratory diagnostic techniques and where it is not inconsistent with
other substantial evidence in the record.” Shontos v. Barnhart, 328 F.3d 418, 426 (8th Cir. 2003),
paraphrasing 20 C.F.R. § 404.1527(d)(2).
The majority of visits to Dr. Mathur related to Plaintiff’s lower back pain and medication
refills. On April 7, 2008, Dr. Mathur noted, based upon a physical examination, that Plaintiff’s
thoracic mobility and lumbar mobility were decreased . (Tr. 414). There was no kyphosis or
scoliosis, and the spine was positive for posterior tenderness. Plaintiff’s straight leg raise was
“positive: 15 degrees of right foot.” Dr. Mathur noted that Plaintiff was on Dilaudid, 8 mg.,
every six hours, which seemed to help. (Tr. 414). Plaintiff saw Dr. Mathur on April 29, 2008
and May 5, 2008, for his lower and middle back pain, and for pain management. (Tr. 411-413,
467-469). On May 5, 2008, Plaintiff reported he was doing much better on the new regimen of
pain management, and that he felt better. (Tr. 411). However, on June 2, 2008, Plaintiff
complained to Dr. Mathur that his hypertension and pain were worsening. (Tr. 409). On June
27, 2008, Dr. Mathur reported that Plaintiff’s hypertension was benign and under fair control,
but that he still had chronic low back pain. (Tr. 408).
On July 21, 2008, Plaintiff reported to Dr. Caswell that he fell off of a porch the previous
Thursday, and had been in bed since then. (Tr. 405). At that time, Plaintiff was taking one to
two Dilaudid up to five times per day for pain. (Tr. 405). On July 29, 2008, Plaintiff was
admitted to the emergency room of Northwest Medical Center - Springdale, vomiting blood. (Tr.
350). Plaintiff reported that he had been out of pain medicines for the previous two to three days
with vomiting since then, and complained of low back pain. A thoracic spine x-ray revealed
volume loss at T12, which was old, and there was some scattered degenerative change, but an
acute finding was not appreciated. (Tr. 364, 480).
On August 12, 2008, Plaintiff again presented to Dr. Mathur with back pain,
hyptertension and anxiety.
(Tr. 403). On September 8, 2008, Plaintiff reported to Dr. Mathur
that his medications for back pain were helping, but not as much as before. (Tr. 401). He also
reported he was not eating. On October 1, 2008, Plaintiff reported to Dr. Mathur that he had
back and stomach pain, and had not been able to eat in three days, and had been losing weight.
(Tr. 399). From October 9 to October 12, 2008, Plaintiff was in the hospital at Northwest
Medical Center - Washington County. He was assessed with pneumonia, COPD (chronic
obstructive pulmonary disease), and “acute renal failure, multifactorial, prerenal in etiology,
versus angiotensin receptor blocker induced, versus diuretic induced or nonsteroidal
antiinflammatory drugs.” (Tr. 319). Dr. Shamsul Alam, who specializes in internal medicine
and nephrology, was consulted while Plaintiff was at the hospital, and Dr. Alam assessed
1. Acute renal failure secondary to multiple factors including urinary tract obstruction,
chronic NSAID use and acute hypotension from pneumonia;
2. History of hypertension;
3. Chronic back pain, taking large amount of NSAIDS for a long time;
5. Metabolic pseudocyst with elevated anion gap on presentation. However it has
improved since he came to the medical floor;
6. Nicotine dependence;
7. History of chronic pain medication use.
(Tr. 323). On October 12, 2008, Plaintiff was discharged from the hospital and advised to quit
smoking. (Tr. 316).1
On October 13, 2008, Plaintiff presented himself to Dr. Mathur, to follow-up from his
three day hospital stay. Dr. Mathur reported Plaintiff was feeling better, but noted that Plaintiff
had low back pain tenderness to palpation. (Tr. 398). Plaintiff thereafter presented himself to
Dr. Mathur sixteen times between November 3, 2008 and July 29, 2009, continuously
complaining of his chronic back pain. On August 4, 2009, Dr. Mathur prepared a Medical
Source Statement-Physical. (Tr. 530-531, 550-551). In the statement, Dr. Mathur opined:
Plaintiff is limited, but retains maximum capacities to: occasionally lift and/or carry less
than 10 lbs.; stand and/or walk a total of 1 hour and continuously for 10 minutes; sit a
total of 1 hour, and continuously for 10 minutes; push and/or pull (including hand/or foot
controls); limited - cannot push or pull anything requiring more than 5 lbs of force.
P can never climb, stoop, crouch, or bend.
P can occasionally balance and kneel.
P is limited in his reaching and handling
P is unlimited in his fingering, feeling, seeing, hearing, and speaking.
P is limited - any vibration can increase pain and limit function.
Operation of machinery is not recommended with current meds.
1. MRI lower spine - spondylosis.
2. Decreased ROM due to pain of the back + strait leg raises
3. Significant increase pain in lower back with minimal movement.
Assessment is for time period 3/08 to 7/09.
A record dated October 9, 2008 from Northwest Medical Center-Washington County, indicated that Plaintiff
smoked 1/1/2 to 2 packs of cigarettes per day. (Tr. 318).
(Tr. 530-531, 550-551). Plaintiff then saw Dr. Mathur six times after Dr. Mathur prepared the
Medical Source Statement.
The only Physical RFC Assessment in the record is one that was completed by nonexamining medical consultant, “C. Ziehmer” on June 4, 2007.2
(Tr. 225-230). In the
assessment, C. Ziehmer found that Plaintiff could:
occasionally lift and/or carry (including upward pulling) 20 pounds, frequently lift and/or
carry (including upward pulling) 10 pounds, stand and/or walk (with normal breaks) for
a total of about 6 hours in an 8-hour workday; sit (with normal breaks) for a total of about
6 hours in an 8-hour workday; push and/or pull (including operation of hand/foot controls)
unlimited, other than shown for lift and/or carry.
(Tr. 226). C. Ziehmer further found that Plaintiff had no postural, manipulative or visual
limitations, but that Plaintiff should avoid concentrated exposure to vibration and hazards
(machinery, heights, etc.). (Tr. 227-228). C. Ziehmer acknowledged that Plaintiff did have x-ray
findings of compression of T12, but had no significant neurological findings or limits, and that
he had been given a release to light work from his treating doctor. C. Ziehmer concluded that
Plaintiff did have an impairment that could be expected to result in some pain and limitations as
noted in the RFC, and his allegations were found to be partially credible. (Tr. 229).
Plaintiff was also examined, at the request of the Commissioner, by Dr. Saad M. AlShathir, on April 23, 2007. Dr. Shathir found that Plaintiff’s strength was 5/5. However, Dr.
Shathir stated that Plaintiff has “give-away phenomena on almost all the tests in the muscles in
both upper and lower limbs.” He found Plaintiff’s deep tendon reflexes to be 2/4, and sensation
5/5. He reported that Plaintiff’s coordination and muscle tone were normal, and that as to the
The record does not reflect whether C. Ziehmer is a physician. The ALJ simply refers to C. Ziehmeer as a
straight leg raising test, when he was supine, he could not move the left lower limb to any degree,
causing severe pain in his lower back. Plaintiff could move the right lower limb, and do straight
leg raising actively and passively with pain mostly in the hamstring and lower back. Dr. Shathir
reported that when Plaintiff was seated, he had pain from tightness in his hamstrings at 80
degrees. Dr. Shathir found Plaintiff’s gait was normal in speed and stability without an assistive
device, and there was no deformity or scoliosis. Plaintiff was tender to light touch in his dorsal,
lumbar, and sacral area, and Dr. Shathir found him to have “poor effort with range of motion of
his back, his neck, and his upper limbs.” (Tr. 203). He further found Plaintiff had good use of
the upper limbs, he could sit up, lie down, transfer, stand up, walk, cross his legs, reach above his
head, and manipulate objects in his hands. (Tr. 203).
The Court does not believe there is substantial evidence to support the ALJ’s decision to
give Plaintiff’s treating physician, Dr. Mathur, “little weight,” and to give greater weight to a nonexamining medical consultant and a physician who examined Plaintiff only once. As stated
earlier, Plaintiff saw Dr. Mathur thirty-one times in 2008 and 2009, and the Court does not believe
the ALJ gave sufficient explanation as to why he did not give Dr. Mathur’s opinion controlling
weight. Therefore, the Court finds it necessary to remand this matter to the ALJ in order for him
to re-evaluate Plaintiff’s RFC, and to explain in greater detail the reasons he failed to give Dr.
Mathur’s opinion controlling weight.
Accordingly, the Court concludes 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 pursuant to sentence four of
42 U.S.C. § 405(g).
DATED this 22nd day of July, 2011.
/s/ Erin L. Setser
HON. ERIN L. SETSER
UNITED STATES MAGISTRATE JUDGE
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