Gordon v. Commissioner of Social Security
Filing
20
MEMORANDUM OPINION AND ORDER re 3 Complaint filed by Jennifer Gordon. I reverse the Commissioner's decision and remand this case to the Social Security Administration for further proceedings. Judgment shall enter in favor of Gordon. Signed by Magistrate Judge Kelly Mahoney on 3/25/2019. (src)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CEDAR RAPIDS DIVISION
JENNIFER GORDON,
Plaintiff,
No. 18-CV-0007-KEM
vs.
COMMISSIONER OF SOCIAL
SECURITY,
MEMORANDUM OPINION
AND ORDER
Defendant.
___________________________
Plaintiff Jennifer Gordon seeks judicial review of a final decision of the
Commissioner of Social Security (the Commissioner) denying her applications for
supplemental security income (SSI) under Title XVI of the Social Security Act, 42 U.S.C.
§§ 1381-1383f, and for disability insurance (DI) benefits under Title II of the Social
Security Act, 42 U.S.C. §§ 401-434. Gordon argues that the Commissioner erred in
evaluating Gordon’s subjective complaints, in weighing medical opinion evidence, and
in determining appropriate limitations for Gordon’s RFC. For the reasons that follow, I
reverse the Commissioner’s decision and remand for further proceedings.
I.
BACKGROUND1
Gordon has suffered from daily headaches since 2009. AR 471, 584-86. She has
been treated by her primary care physician, Mark Goedkin, MD, and she began receiving
treatment from neurologist Winthrop Risk, MD, in May 2010, and continued to see him
through at least September 2016. AR 471, 577, 584, 616-17. Gordon has been diagnosed
with hemicrania continua2 as well as migraines. AR 444-46, 616-17, 550, 695-96. She
1
For a more thorough overview, see the Joint Statement of Facts (Doc. 14).
“Hemicrania continua is a chronic and persistent form of headache marked by continuous pain
that varies in severity, always occurs on the same side of the face and head, and is superimposed
2
has also been seen by Laurence Krain, MD (in 2009), rheumatologist Shahin Bagheri,
MD (in 2010 and 2013), neurologists Marc Hines, MD (in July and August 2014), and
Harold Adams Jr., MD (in December 2014), and pain specialist Rahul Rastogi, MD (in
February 2015). AR 417-19, 424-26 (Dr. Bagheri); 547-62 (Dr. Hines); 588-94 (Dr.
Krain); 690-94 (Dr. Adams); 694-99 (Dr. Rastogi). In February 2010, Dr. Bagheri
diagnosed Gordon with diffuse myofascial pain and fibromyalgia, and Dr. Risk noted
tenderness during musculoskeletal examinations in 2012 and 2013. AR 426, 432, 442,
445. In July 2016, Gordon also began seeing David Ross, LISW, ACSW, (Therapist
Ross) for depression. AR 613-15.
Gordon’s headaches vary in intensity and cause constant pain at the back and on
the left side of her head. AR 298-99, 695. On a ten-point scale, Gordon rates her
average, daily headache pain at four minimum and five to seven on average with flares
up to nine or ten.
AR 43, 298, 547, 695.
Her headaches cause photophobia,
phonophobia, and nausea, and they worsen with overstimulation (including to light and
noise), activity, stress, and focusing on things. AR 40, 547, 690, 695. In addition to
her daily headaches, Gordon more recently began suffering migraines, which cause pain
throughout her entire head (rather than just at the back and left side) and worsen as the
day goes on. AR 44, 550, 616-19, 695. They also cause increased nausea and a sense
of feeling unwell, and they require Gordon to lie down, usually for the rest of the day.
AR 44, 547, 619. Gordon indicated her fibromyalgia causes increased sensitivity to pain.
AR 45.
In February 2014, Gordon filed for SSI and DI benefits, alleging disability since
March 1, 2012. AR 65-67. Gordon claimed disability based on hemicrania continua;
with additional . . . symptoms.” Hemicrania Continua Information Page, National Institute of
Neurological
Disorders
and
Stroke,
https://www.ninds.nih.gov/Disorders/AllDisorders/Hemicrania-Continua-Information-Page (last modified June 27, 2018).
2
vision issues; low blood pressure, fainting, and balance issues; light and sound sensitivity;
nausea; anemia; and constant plugged ears. AR 67. Her applications were denied
initially in May 2014 and upon reconsideration in October 2014. AR 65-66, 81-82, 97100, 120-21, 141-42.
In connection with the initial review, the Social Security
Administration ordered a consultative examination, which was completed by Harlan
Stientjes, PhD, on May 5, 2014. AR 71, 87, 507-11. The initial reviews also included
RFC opinions from state agency consultants Melodee Woodward, MD, dated April 22,
2014 (AR 73-77, 89-93), and Rhonda Lovell, PhD, dated May 21, 2014 (AR 77-80, 9396). The reconsideration reviews included RFC opinions from Marlene Ann Gernes,
DO, dated October 22, 2014 (AR 109-10, 115, 130-31, 133-36), and Myrna Tashner,
EdD, dated October 10, 2014 (AR 116-18, 137-39), which affirmed the initial review
RFC opinions.
Gordon requested further review, and she submitted RFC opinions from Dr. Risk
and Therapist Ross, both dated August 30, 2016. AR 166, 577-83. The administrative
law judge (ALJ) conducted an administrative hearing3 on November 17, 2016, at which
Gordon and a vocational expert (VE) testified. AR 13, 33-35. The ALJ issued a written
decision on December 28, 2016, following the familiar five-step process outlined in the
regulations4 for determining whether Gordon is disabled. AR 13-25. The ALJ found
3
It is not clear if this hearing was in person (AR 35) or with Gordon appearing by video (AR
13).
4
“The five-part test is whether the claimant is (1) currently employed and (2) severely impaired;
(3) whether the impairment is or approximates a listed impairment; (4) whether the claimant can
perform past relevant work; and if not, (5) whether the claimant can perform any other kind of
work.” King v. Astrue, 564 F.3d 978, 979 n.2 (8th Cir. 2009); see also 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4). The burden of persuasion always lies with the claimant to
prove disability, but during the fifth step, the burden of production shifts to the Commissioner
to demonstrate “that the claimant retains the RFC to do other kinds of work[] and . . . that other
work exists.” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting Eichelberger v.
Barnhart, 390 F.3d 584, 591 (8th Cir. 2004)).
3
Gordon suffers from severe impairments of migraine headaches, cervical degenerative
disc disease, fibromyalgia, and depression, and that her other alleged impairments
(anxiety, left-sided loss of sensation, vision problems, speech impairment, dizziness, and
balance issues) are not medically determinable. AR 15-16. After finding Gordon’s
impairments do not meet or equal a listed impairment, the ALJ determined she has the
RFC5 to perform light work with postural limitations and the following additional
limitations:
limited to normal office noise levels;
cannot be in an environment with bright lights;
limited to simple, routine, repetitive work;
limited to work involving no public contact; and
limited to no specific production rate requirements.
AR 17. The ALJ found Gordon was not able to perform past relevant work (as a janitor
or janitor supervisor) because it required medium level of exertion. AR 24, 35-36, 394.
The ALJ concluded that Gordon could perform other work as a router, routing clerk, or
mail clerk, and that she was therefore not disabled. AR 24-25.
The Appeals Council denied Gordon’s request for further review on October 31,
2017 (AR 1), making the ALJ’s opinion the final decision of the Commissioner. See 20
C.F.R. §§ 404.981, 416.1481. Gordon filed a timely complaint in this court (Docs. 1,
3). See 20 C.F.R. § 422.210(c). The parties briefed the issues (Docs. 15, 16, 17), and
consented to the jurisdiction of a United States magistrate judge (Doc. 13).
5
RFC is “‘what the claimant can still do’ despite his or her physical or mental limitations.”
Lewis v. Barnhart, 353 F.3d 642, 646 (8th Cir. 2003) (quoting Bradshaw v. Heckler, 810 F.2d
786, 790 (8th Cir. 1987)).
4
II.
LEGAL FRAMEWORK
A court must affirm the ALJ’s decision if it “is supported by substantial evidence
in the record as a whole.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007); see also
42 U.S.C. § 405(g). “Substantial evidence is less than a preponderance, but enough that
a reasonable mind might accept it as adequate to support a decision.” Kirby, 500 F.3d
at 707. The court “do[es] not reweigh the evidence or review the factual record de
novo.” Naber v. Shalala, 22 F.3d 186, 188 (8th Cir. 1994). If, after reviewing the
evidence, “it is possible to draw two inconsistent positions from the evidence and one of
those positions represents the [ALJ’s] findings, [the court] must affirm the decision.”
Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992).
Gordon argues the ALJ’s decision must be reversed because: (1) the ALJ erred in
discounting Gordon’s subjective allegations of her symptoms and their limiting effects;
(2) the ALJ erred in weighing medical opinions; and (3) the ALJ’s RFC determination is
not supported by substantial evidence. For the reasons discussed below, I find the ALJ’s
findings and RFC determination are not supported by substantial evidence in the record.
III.
DISCUSSION
A. Subjective Complaints
When evaluating the credibility of a claimant’s subjective complaints, an ALJ must
consider the factors set forth in Polaski v. Heckler: “(1) the claimant’s daily activities;
(2) the duration, frequency, and intensity of the pain; (3) dosage, effectiveness, and side
effects of medication; (4) precipitating and aggravating factors; and (5) functional
restrictions.” Black v. Apfel, 143 F.3d 383, 386 (8th Cir. 1998); accord Polaski, 739
F.2d 1320, 1321-22 (8th Cir. 1984), vacated, 476 U.S. 1167 (1986), reinstated, 804
5
F.2d 456 (8th Cir. 1986).6 “Other relevant factors include the claimant’s relevant work
history and the absence of objective medical evidence to support the complaints.” Black,
143 F.3d at 386. “An ALJ may discount a claimant’s subjective complaints only if there
are inconsistencies in the record as a whole.” Finch v. Astrue, 547 F.3d 933, 935 (8th
Cir. 2008) (quoting Porch v. Chater, 115 F.3d 567, 572 (8th Cir. 1997)). “‘Credibility
determinations are the province of the ALJ[,]’ [and a reviewing] court defers to the ALJ’s
determinations ‘as long as good reasons and substantial evidence support the ALJ’s
evaluation’” of a claimant’s subjective complaints.
Nash v. Comm’r Social Security
Admin., 907 F.3d 1086, 1090 (8th Cir. 2018) (quoting Julin v. Colvin, 826 F.3d 1082,
1086 (8th Cir. 2016)).
Gordon reported her headaches and pain are worsened by noise, light, hot and
cold temperatures, overstimulation, and stress. AR 40-42, 51, 293, 298. She alleged
her headaches and associated pain affect her memory and ability to concentrate and focus,
and make her slower at performing tasks because of her pain and trouble focusing . AR
40, 49-54, 296-97, 299, 301-02, 306, 308. Gordon testified that in addition to her daily
headaches, she suffers from migraines around three times per week. AR 44. She
reported using icepacks and lying down in a quiet, dark room to help relieve headache
pain, but when her pain reaches a certain point, she must go to bed, usually for the rest
of the day. AR 44, 46, 295, 298; see also AR 506 (Gordon reported lying around with
an icepack for four days due to a bad headache in March 2014). Gordon also reported a
loss of sensation, tingling, and numbness on her left side; an inability to lift more than
20 pounds with her left arm; issues with grip that cause her to drop items; and issues
with her vision, speech, and hearing. AR 42-43, 45-46, 48, 295-96, 299.
6
The court did not explicitly say that it was reinstating the original Polaski opinion, but the
Eighth Circuit has recognized that it “effectively reinstat[ed]” Polaski. Jones v. Callahan, 122
F.3d 1148, 1151 n.3 (8th Cir. 1997).
6
The ALJ noted that Gordon alleged her symptoms limit her to performing unskilled
work; cause issues with her ability to stay on task, maintain attention and concentration,
handle stress, and interact with others; and would require her to take unscheduled breaks
and be absent four or more time per month. AR 18. The ALJ did not credit these
subjective allegations, however, based on (1) a lack of psychological treatment, (2) the
results of physical examinations, and (3) Gordon’s activities of daily living. Id. Based
on the record in this case, I do not find the ALJ provided good reasons supported by the
record for discounting Gordon’s subjective complaints.
In addressing a lack of psychological treatment, the ALJ correctly noted that
Gordon only received such treatment from June to August 2016. AR 20; see also AR
613-615 (Therapist Ross’s treatment records). “A claimant’s allegations of disabling
pain may be discredited by evidence that the claimant has received minimal medical
treatment and/or has taken only occasional pain medications.” Singh v. Apfel, 222 F.3d
448, 453 (8th Cir. 2000). An ALJ should not, however, discount subjective complaints
due to a lack of treatment “without considering the possible reasons he or she may not .
. . seek treatment consistent with the degree of his or her complaints.” Evaluation of
Symptoms in Disability Claims, Social Security Ruling (SSR) 16-3p, 81 Fed. Reg.
14166, 14170 (Mar. 16, 2016), as amended, 81 Fed. Reg. 15776 (Mar. 24, 2016)
(changing effective date to March 28, 2016); see, e.g., Watkins v. Astrue, 414 F. App’x
894, 898 (8th Cir. 2011) (Colloton, J., concurring) (agreeing with decision to remand
where “ALJ’s opinion lacks an adequate discussion” about noncompliance with
treatment); Renshaw v. Berryhill, 4:16-CV-1467 NAB, 2017 WL 4176437, at *5-6
(E.D. Mo. Sept. 21, 2017) (remanding, in part, for failure to consider why claimant
missed treatment). The ALJ here did not question Gordon at the administrative hearing
7
about her lack of psychological treatment, nor did the ALJ address why Gordon may have
not sought such treatment.7
The ALJ’s failure is especially troubling because Gordon’s depression results from
her other impairments (AR 613), and the record shows she has received extensive
treatment for those impairments.8 The record here shows (as it did for the claimant in
Singh) that Gordon has made “repeated and consistent visits to doctors” and has tried
“numerous prescription medications” and “many pain treatment modalities,” Singh, 222
F.3d at 453, that overall, have either not helped or caused significant adverse side effects.
AR 250, 325, 445, 471-73, 498, 504, 506, 514, 552, 616-17, 618-624, 643, 645, 647,
651, 692. Indeed, this treatment history suggests Gordon’s symptoms are in fact “intense
and persistent.” SSR 16-3p, 81 Fed. Reg. at 14170. In addition, the ALJ “failed to
consider the dosage, effectiveness, and side effects of [Gordon]’s medications.” Beckley
v. Apfel, 152 F.3d 1056, 1060 (8th Cir. 1998) (noting ALJ’s failure to consider this
7
The record provides some indication that financial issues have impacted Gordon’s available
treatment options. See AR 473 (somewhat limited in treatment options because of insurance
change); 616 (high co-pay for medication noted); 633, 645 (unable to afford specific
transcutaneous electrical nerve stimulation (TENS) unit for migraines).
8
Gordon has tried numerous prescription medications (indomethacin, Topamax, lamotrigine,
Depakote, carbamazepine, amitriptyline, nortriptyline, Cymbalta, Keppra, Lyrica, baclofen,
Flexeril, tizanidine, lidocaine cream, intravenous DHE, prednisone, gabapentin, levetiracetam,
promethazine, hydrocodone, Savella, Naprosyn, Celebrex, clonidine, and Maxalt) and multiple
injections (sumatriptan, botox injections, trigger point injections, and occipital nerve blocks).
AR 471, 584, 616-21, 637, 695; see also 249-50. She has also tried various medication dosages
and repeated injections, despite known adverse side effects or ineffectiveness in an attempt to
alleviate her symptoms. AR 434, 445, 498, 506, 624, 643-45. In addition to medications and
injections, Gordon has seen a nutritionist (no specific recommendations made) and used a TENS
unit. AR 633, 645, 695. She received long-term relief only from indomethacin but cannot take
the medication long term due to the gastrointestinal side effects. AR 429-30, 437, 445, 619,
647. Physicians have been unable to offer any additional treatment options (aside from Dr.
Rastogi’s suggestion of considering possible referral for evaluation “for possible deep brain
stimulator placement,” which Dr. Risk disregarded). AR 621, 624, 629, 631, 635, 639, 692,
698.
8
Polaksi factor in reversing and remanding to allow VE testimony about the effects of the
claimant’s impairments on her RFC where the ALJ erred in discounting the claimant’s
subjective complaints). Here, an absence of psychological treatment does not support the
ALJ’s decision to discount Gordon’s subjective complaints. See id. (holding numerous
doctor visits and use of various forms of treatment to relieve pain did not support ALJ’s
decision to disbelieve claimant’s subjective complaints based on minimal treatment).
Next, the ALJ relied on the results of physical examinations contained in the
treatment records to discount Gordon’s subjective complaints. AR 18. The ALJ relied
on Dr. Stientjes’s one-time mental status examination to conclude that Gordon was
capable of social interactions and maintaining concentration, persistence, and pace
consistent with the ALJ’s RFC determination.
AR 19.
This does not constitute
substantial evidence to support the ALJ’s conclusion, especially in light of Dr. Stientjes’s
overall opinion about Gordon’s limitations (AR 510-11; see also infra at 12) and the
overall record in this case as discussed below. The only other examination records
specifically referenced by the ALJ in discussing Gordon’s subjective complaints related
to her alleged symptoms of loss of sensation on her left side and issues with her vision,
speech, dizziness, and loss of balance (to which the ALJ gave “little credence”). AR 21.
The ALJ concluded the referenced examination results (AR 421, 432, 439, 647) did not
support Gordon’s allegations of issues with sensation, vision, speech, dizziness, and
balance. AR 21-22. The ALJ’s conclusion, however, is not supported by the record.
Multiple treatment notes record findings of loss of sensation on Gordon’s left side. AR
592 (Dr. Krain noted decreased sensation on “entire left side” during November 2009
examination); 442, 445, 514, 619, 621, 643, 647 (examinations by Dr. Risk in February
and April 2012, May and October 2014, and May and July 2016); 532 (emergency room
examination in June 2014); 692 (examination by Dr. Adams in December 2014); 698
(examination by Dr. Rastogi in February 2015). The ALJ decided Dr. Risk’s May 2014
9
findings were based on Gordon’s subjective complaints. AR 22. This fails to recognize
that sensory deficits may constitute a symptom of pain that can be “clinically observed
and recorded” by medical providers. SSR 16-3p, 81 Fed. Reg. at 14168; see also 20
CFR §§ 404.1528, 404.1529(c)(2), 416.928(b), 416.929(c)(2) (2016). Examination
records also substantiate at least some of Gordon’s other claims. AR 515-17 (April 2014
emergency room examination found weak grip); 692 (in December 2014, Dr. Adams
noted cautious station and gait, bilateral breakaway weakness, slow coordination (worse
on the left side), constricted vision on the left side, and slightly diminished hearing in the
left ear; he attributed these symptoms to Gordon’s headaches and neurological issues,
rather than strokes); 666-67 (in March 2015, emergency room personnel observed
Gordon had difficulty speaking and demonstrated constant, irregular movements, which
were attributed to her headaches). Substantial evidence does not support the ALJ’s
reliance on Gordon’s physical examination results to discount her subjective complaints.
The ALJ noted Gordon’s headaches, fibromyalgia, and cervical disc disease
“warrant some extent of workplace limitation,” but found “insufficient support for and
several inconsistencies with the limitations alleged by the claimant and Dr. Risk.” AR
22. Thus, it appears the ALJ relied on other inconsistencies in the record to discount
Gordon’s subjective complaints.
The ALJ pointed to Dr. Risk’s November 2014
treatment notations that MRI results did not explain Gordon’s left arm discomfort and
that Gordon “look[ed] okay” during the visit despite her report of experiencing moderate
pain at that time. AR 22, 641. The ALJ relied on this one subjective observation by Dr.
Risk, but made no mention of the multiple notations by Dr. Risk that were consistent
with Gordon’s reported pain. See AR 498, 504, 621, 623, 631, 633, 647, 651 (noting
Gordon looked miserable or that she looked like she had a headache). The ALJ also
failed to address that in the same November 2014 treatment note, Dr. Risk questioned
whether Gordon’s abnormal MRI results (“an increasing number of white spots” on her
10
brain) might be the result of another condition (a patent foramen ovale) potentially
associated with headaches and that he requested additional testing (Gordon was referred
to Dr. Adams). AR 639, 641. Dr. Adams found it was unlikely that Gordon’s abnormal
MRI results were caused by stroke but that they “may be related to her headaches and
migraines.” AR 692. Dr. Adams also concluded that Gordon’s “focal neurological
complaints of sensory loss and weakness on the left side” warranted continued evaluation
for vascular disease and that if her headaches could be controlled, “her other neurological
symptoms would improve.” AR 692. Similarly, the ALJ relied on Dr. Risk’s conclusion
that Gordon’s abnormal MRI results “were likely due [to] small vessel ischemic disease—
not an underlying neurological condition.” AR 22, 485. The record the ALJ relies on
(included with an October 2013 Report of Incapacity), however, appears to have been
prepared by Gordon and not Dr. Risk. See AR 484 (typed document titled “What Do
we Know” that states, in describing swelling in feet and hands that “I am unable to open
and close my hands, especially the left one and it takes 1-2 hours before I can fully do
this” (emphasis added)). The treatment records cited by the ALJ are not inconsistent
with Gordon’s allegations or the record as a whole.
As for Gordon’s activities of daily living, although the ALJ noted that Gordon told
the consultative examiner (Dr. Stientjes) that she does housework and cooks, the ALJ
relied primarily on Gordon providing child care for a neighbor to discount her subjective
complaints. AR 19-20. Gordon provided daycare for the child from 2012 to August
2015, and briefly in the summer of 2016. AR 19, 253, 263, 372, 392. The ALJ relied
on this activity to find Gordon could “perform light, unskilled work” with a production
rate limitation, and that with a limitation on public contact, she could get along with coworkers and supervisors. AR 18, 20. Specifically, the ALJ, in a set of rhetorical
questions, found Gordon’s childcare activities demonstrated she could pay attention for
more than 10-15 minutes, stay on task more than seventy percent of the day, and interact
11
with others. AR 19-20. The ALJ disbelieved Gordon’s allegations that others were home
during the periods she watched the child. AR 19, 253-55; but see AR 39-40, 291, 302,
309, 319, 329, 337-38, 372. Regardless, the ALJ failed to address the fact that Gordon
stopped providing childcare and more significantly, that her condition worsened after that
time. Gordon went to the emergency room in March 2015 for stroke-like symptoms and
was treated for headache (AR 631, 655-67); her daily headaches began to worsen in
March 2016 (AR 620-23); and she began suffering migraines on top of her daily
headaches around July 2016 (AR 616-19). The ability to care for young children may be
inconsistent with a claimant’s alleged limitations. See Ramirez v. Barnhart, 292 F.3d
576, 581-82 (8th Cir. 2002) (accepting ALJ’s decision to discount subjective complaints,
in part, based on claimant caring for her minor children). This is not always the case,
however, and childcare activities are not necessarily inconsistent with a claimant’s alleged
limitations or a finding of disability. See Morris v. Apfel, No. C93-1027 MJM, 1999
WL 33656860, at *1, 4-5 (N.D. Iowa Jan. 20, 1999) (remanding for benefits due to
impairments stemming from chronic fatigue syndrome despite claimant’s ability to
provide full-time childcare for a child); see e.g., Shontos v. Barnhart, 328 F.3d 418,
420, 427 (8th Cir. 2003) (holding that claimant’s impairments were equivalent to a listing
despite her ability to babysit for her granddaughter). Gordon’s supervision of a child
with others present does not equate to an ability to focus and function in the workplace.
The record here does not support the ALJ’s finding that Gordon’s limited childcare
activities are inconsistent with her alleged limitations in being able to maintain attention
and concentration, stay on task, and be present at work.
Finally, the ALJ’s RFC determination limited Gordon’s exposure to bright lights
and noise (although it is not clear if the limitation for noise stems from Gordon’s
headaches or hearing loss). AR 17. The ALJ found, based on Dr. Stientjes’s consultative
examination (AR 507-11) and Therapist Ross’s treatment notes (AR 613-15), that Gordon
12
could perform unskilled work and interact with others. AR 19. The ALJ did not
specifically address, however, what impact Gordon’s migraines or headache flares would
have on her ability to work (in particular, her need for unscheduled breaks and to be
absent when she suffers from a migraine). This failure further undermines the RFC
determination. See, e.g., Stewart v. Colvin, No. C13-2029, 2014 WL 1165870, at *13
(N.D. Iowa Mar. 21, 2014) (finding ALJ erred by failing to address claimant’s difficulties
with migraines, including how they impacted the claimant’s need to take breaks and be
absent, when the record showed these migraines caused photophobia, phonophobia, and
nausea, and sometimes required emergency room treatment).
Overall, the record here (including Gordon’s daily activities, physical examination
results, and treatment history) does not “weigh[] so heavily against [Gordon]’s credibility
that the ALJ would necessarily have disbelieved her absent the erroneous inferences he
drew from the record.”
Ford v. Astrue, 518 F.3d 979, 982-83 (8th Cir. 2008)
(remanding where ALJ failed to properly consider the evidence because claimant’s
activities of daily living did not contradict her alleged limitations and because it was
unclear which portion of the medical record the ALJ relied on in finding claimant had
minimal limitations). The reasons cited by the ALJ to discount Gordon’s subjective
allegations about her pain and its limiting effect are not supported by substantial evidence,
and the allegations are not inconsistent with the record as a whole. The ALJ erred in
assessing Gordon’s subjective complaints for the reasons provided.
B. Medical Opinion Evidence
When determining a claimant’s RFC, an ALJ considers medical opinions “together
with the rest of the relevant evidence.” 20 C.F.R. §§ 404.1527(b), 416.927(b).9 Gordon
9
The Social Security Administration adopted new regulations for evaluating medical opinions
that went into effect on March 27, 2017. See Revisions to Rules Regarding the Evaluation of
Medical Evidence, 82 Fed. Reg. 5844 (Jan. 18, 2017). Rather than stating that these rules are
13
argues the ALJ erred in weighing Dr. Risk’s medical opinions, and as a result, the state
agency consultants’ opinions. First, there is no dispute that Dr. Risk, who has treated
Gordon on a regular basis since 2010, qualifies as a treating source (AR 23, 445, 577).
See Owen v. Astrue, 551 F.3d 792, 798-99 (8th Cir. 2008).
An ALJ must give
controlling weight to a treating-source opinion if the opinion “is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent
with other substantial evidence in [the] case record.”
Id. at 798; 20 C.F.R.
§§ 404.1527(c)(2), 416.927(c)(2). In addition, because he is a neurologist, Dr. Risk’s
opinion is also entitled to greater weight than opinions from nonspecialists, unless Dr.
Risk’s opinion is “controverted by substantial evidence or otherwise discredited.”
Prosch v. Apfel, 201 F.3d 1010, 1014 (8th Cir. 2000). “Whether the ALJ gives the
opinion of a treating [source] great or little weight, the ALJ must give good reasons for
doing so.” Reece v. Colvin, 834 F.3d 904, 909 (8th Cir. 2016).
Dr. Risk submitted a medical source statement (MSS) dated August 30, 2016. AR
577-80. He found Gordon could not perform even “low stress” work, that she would
need to take “a lot” of unscheduled breaks (up to the rest of the day), that she would be
off task at least twenty-five percent of the time, and that she would be absent from work
more than four days per month. AR 578-59. Dr. Risk also noted that Gordon has issues
not retroactive (its usual practice), the Social Security Administration issued two sets of new
regulations, one governing claims filed on or after March 27, 2017, and one governing claims
filed before that date, which are substantively the same as the old rules. See, e.g., 20 C.F.R.
§§ 404.1527, 404.1520c. The Eighth Circuit has cited to both the old rules, see Gates v.
Comm’r, Soc. Sec. Admin., 721 F. App’x 575, 576 n.2 (8th Cir. 2018) (per curiam), and the
new rules, see Chesser v. Berryhill, 858 F.3d 1161, 1164 (8th Cir. 2017). As it makes no
substantive difference, for ease, rather than citing to both sets of rules, I cite only to the new
regulations contained in the 2018 Code of Federal Regulations unless otherwise noted.
14
with concentration. AR 578. The ALJ gave little weight to Dr. Risk’s opinions for
multiple reasons.10 AR 23.
The ALJ found that “Dr. Risk cited no objective test result to support the
symptoms he notes” in his opinions. AR 23. The ALJ did not question Gordon’s
diagnoses of hemicrania continua and migraines, finding her headaches constitute a severe
impairment. As noted above, Dr. Risk has treated Gordon for several years, has overseen
various modalities of treatment to address her headaches and accompanying symptoms,
and specializes in this area. His treatment notes demonstrate he relied on MRI results,
physical examinations (which included findings of decreased sensation as discussed in
SSR 16-3p), and examinations by other providers. AR 439, 442, 514, 570-72, 619, 621,
635, 639, 643. It is not clear what additional objective testing the ALJ believes was
needed to credit Dr. Risk’s opinions, especially when considering he relied on his
10
The ALJ first noted that Dr. Risk provided limitations stemming from Gordon’s headaches
through “submitted answers to several form questionnaires.” AR 22. Although the ALJ did not
specifically cite this as a basis for discounting Dr. Risk’s opinions, I note that earlier in his
decision, the ALJ weighed heavily the fact that Therapist Ross’s opinions were contained in “a
form questionnaire” (ultimately giving those opinions little weight). AR 21. The record in this
case would not support discounting Dr. Risk’s MSS opinions simply because they were contained
in a form questionnaire. “An MSS is a checklist evaluation in which the responding physician
ranks the [claimant]’s abilities, and is considered a source of ‘objective medical evidence.’”
Reed v. Barnhart, 399 F.3d 917, 921 (8th Cir. 2005) (quoting Burress v. Apfel, 141 F.3d 875,
879 (8th Cir. 1998)). An ALJ may discount opinions contained in this type of form questionnaire
only if those opinions “stand alone and were never mentioned in the physician’s numerous
records of treatment nor supported by any objective testing or reasoning.” Id. (cleaned up)
(quoting Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001)); see also Martise v. Astrue, 641
F.3d 909, 926 (8th Cir. 2011) (“A treating physician’s checkmarks on an MSS form are
conclusory opinions that may be discounted if contradicted by other objective medical evidence
in the record.”). The record also contains four “Report[s] on Incapacity” from Dr. Risk. AR
482-83, 569, 609-12. These reports do not specifically address Gordon’s functional limitations
and could be discounted to the extent Dr. Risk opined that Gordon would be unable to work.
See House v. Astrue, 500 F.3d 741, 745 (8th Cir. 2007) (“A treating physician's opinion that a
claimant is disabled or cannot be gainfully employed gets no deference because it invades the
province of the Commissioner to make the ultimate disability determination.”).
15
extensive knowledge of Gordon’s condition, his observations of her over time, and his
long-term treatment of her headaches. See Reed, 399 F.3d at 921-22 (holding a treating
source’s reliance on the claimant’s diagnoses, treatment history, and the source’s
documentation of claimant’s history and observations of the claimant during multiple
visits was sufficient to support the source’s opinion, and that ALJ erred in relying on a
lack of objective testing to discount the source’s opinions that were consistent with the
source’s treatment notes).
In addition, the record includes extensive treatment notes from Dr. Risk and
others, which outlined the various medications, injections, and other modalities Gordon
has received to treat her headaches and other related issues. See AR 415-46, 470-74,
495-506, 513-36, 547-62, 567-68, 584-94, 616-51, 664-99; see infra at 8 n.9. A treating
source opinion about the limiting effect of pain, which “can be directly attributed to an
objective finding—a diagnosis of [hemicrania continua and migraines—]” may be
substantiated by the claimant consistently seeking treatment for her pain and undergoing
numerous treatments to alleviate the pain. Singh, 222 F.3d at 452 (finding evidence of
claimant’s ongoing treatment and various procedures to try and alleviate his pain (caused
by nerve root irritation and recurrent herniated disc) substantiated treating neurologist’s
opinion about claimant’s functional imitations). The record does not support the ALJ’s
decision to discount Dr. Risk’s opinions based on a lack of objective medical testing.
The ALJ also found that Dr. Risk’s opinions were inconsistent with Gordon’s
“mostly normal neurological findings” and “physical examination results [that]
consistently included full orientation without distress.” AR 23. The ALJ concluded these
results were inconsistent with Gordon “experienc[ing] constant migraines.”
Id.
Treatment notes of normal mental status examinations (finding no issues with a claimant’s
alertness, orientation, and judgment) “do not relate, specifically, to claimant’s ability to
function in the workplace.” Shuttleworth v. Berryhill, No. 17-CV-34-LRR, 2017 WL
16
5483174, at *4 (N.D. Iowa Nov. 15, 2017). The ALJ here failed to explain how
Gordon’s neurological findings and physical examination results “would necessarily lead
to a conclusion other than the conclusion reached by Dr. [Risk].” Id. (holding ALJ failed
to show inconsistency between treating physician’s treatment records and opinions where
ALJ did not explain how claimant’s normal mental status examinations were contrary to
the treating source’s opinions about claimant’s ability to perform competitive work). In
particular, the ALJ in this case did not explain how Gordon’s treatment records were
inconsistent with Dr. Risk’s opinions about Gordon’s ability to maintain attention and
concentration, and her need to take unscheduled breaks and to be absent from work due
to her headaches and related pain.
Conversely, Dr. Risk’s opinions were also consistent with the other opinion
evidence in the record. Therapist Ross found Gordon would be moderately limited in
her ability to maintain concentration and attention and that she would be markedly limited
in her ability to complete a normal workday or perform at a consistent pace, noting “[h]er
pain impacts focus.” AR 581. Therapist Ross also found Gordon’s pain and stress would
frequently to constantly interfere with her ability to maintain attention and concentration.
AR 582. He concluded that Gordon would be off-task more than thirty percent of the
time and that she would be absent from work and unable to complete a full work day five
or more days per month. Id. Dr. Stientjes (the consultative examiner) found that
although Gordon could understand simple instructions, she has issues with memory, she
was slow at processing, and her “[i]mplementation could be haphazard.”
AR 510-11.
He concluded that Gordon’s “[c]ognitive process are slow and seem to be impacted by
medication or other processes . . . . [and her] [p]rospect for sustained gainful employment
is marginal at best.” Id. Dr. Lovell and Dr. Tashner (state agency consultants) found
Gordon was moderately limited in her abilities to understand, remember, and carry out
detailed instructions; to maintain attention and concentration; and to complete a workday
17
or workweek or perform at a consistent pace. AR 78, 116-17. They specifically noted
Gordon could complete “a typical work week in a low stress environment that is devoid
of typical time pressures” (AR 79) (emphasis added), and found moderate limitations in
Gordon’s social functioning. AR 78-79, 117. These opinions, however, were offered in
2014, prior to Dr. Risk’s treating source opinion and at a time when Gordon was still
able to take indomethacin and had some relief from Botox injections. See AR 76-77, 7980, 118. Since that time, Gordon had to stop taking indomethacin regularly due to the
side effects, and injections did not provide continued relief. AR 618-23, 633, 638-45.
Also, Gordon’s condition later worsened, starting in March 2015. AR 616-19, 631, 66489; see also AR 118 (Dr. Tashner noted in October 2014, in affirming the initial review
on reconsideration that Gordon’s mental condition had not worsened).
Gordon’s
worsening condition may explain differences between the opinions of the state agency
consultants and Dr. Risk and Therapist Ross.
As noted above, Gordon has tried
numerous other medications and treatment modalities with no significant relief. Overall,
Dr. Risk’s opinion was consistent with the other medical opinions in the record, which
contradicts the ALJ’s decision to not give Dr. Risk’s opinion controlling weight.
The ALJ also found Dr. Risk’s opinion inconsistent with Gordon providing
childcare. AR 23. The ALJ specifically relied on Gordon being able “to engage in
childcare 40 hours per week with her admission that she received no help in doing so.”
Id. As discussed earlier, the ALJ failed to address that Gordon stopped providing
childcare and that her condition worsened. Dr. Risk’s opinions were therefore not
necessarily inconsistent with Gordon’s activities of daily living, and this was therefore
not a good reason to give those opinions less weight.
The ALJ failed to show that Dr. Risk’s opinion was not supported by the record
or that it was inconsistent with the overall record. The ALJ did not provide good reasons
18
for the weight assigned to Dr. Risk’s opinions about Gordon’s need for unscheduled
breaks, being off task, and being absent.
IV.
CONCLUSION
I realize that upon remand, the ALJ may reach the same ultimate conclusion about
whether Gordon is disabled, “but the determination is one the Commissioner must make
in the first instance.” Renshaw, 2017 WL 417637, at *6 (citing Buckner v. Apfel, 213
F.3d 1006, 1011 (8th Cir. 2000)). In light of the time that has passed since Gordon’s
initial application in February 2014, “the Commissioner is urged to begin proceedings
without delay and resolve this case as soon as possible.” Id.
I reverse the Commissioner’s decision and remand this case to the Social Security
Administration for further proceedings. Judgment shall enter in favor of Gordon.
IT IS SO ORDERED this 25th day of March, 2019.
Kelly K.E. Mahoney
Chief United States Magistrate Judge
Northern District of Iowa
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