Schmidt v. Commissioner of Social Security
Filing
14
MEMORANDUM OPINION AND ORDER Commissioners decision is reversed and remanded solely for the calculation of benefits. Signed by Senior Judge Donald E OBrien on 1/9/2012. (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
CATHY LYNN SCHMIDT,
Plaintiff,
No. 10-CV-3063-DEO
v.
Memorandum and Opinion Order
MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.
____________________
I.
INTRODUCTION AND BACKGROUND
This matter is before the Court pursuant to Cathy Lynn
Schmidt’s (Plaintiff) request for disability benefits under
Title II of the Social Security Act (the “Act”), 42 U.S.C. §§
401 et seq.
On December 3, 2009, an Administrative Law Judge (ALJ)
issued a decision denying Plaintiff disability benefits.
18.
On
September
2,
2010,
Plaintiff’s request for review.
the
Appeals
Tr. 1.
Council
Tr.
denied
On November 4, 2010,
Plaintiff timely filed a complaint, requesting review, with
this Court.
Docket No. 1.
This Court has authority to review
the final decision of the Commissioner of the Social Security
(Commissioner) pursuant to 42 U.S.C. § 405(g).
II. FACTS
The Plaintiff claims a disability onset date of March 7,
2008.
Tr. 9 and 16.
She was then 47.
Tr. 16.
Her last
substantial gainful employment was as a registered nurse.
of 2005, she was only working five hour days.
Tr. 279.
As
The
Plaintiff’s disability insurance coverage is good through
December 31, 2012.1
Tr. 9.
The Plaintiff’s initial adult function report indicates
she sought disability based on Nonalcoholic Steatophepatitis
(NASH),2 Biliary Diskynesia,3 Hypertension, high cholesterol,
1
A claimant is required to have 20 quarters of coverage
within the past 40-quarter period to be insured and,
therefore, eligible for disability benefits. 42 U.S.C. §
416(i)(3)(B)(i); 20 C.F.R. § 404.130(b)(2).
2
This “resembles alcoholic liver disease, but occurs in
people who drink little or no alcohol. The major feature in
NASH is fat in the liver, along with inflammation and damage.”
Nonalcoholic Steatophepatitis, U.S. Department of Health and
Human Services; National Digestive Diseases Information
C l e a r i n g h o u s e
( N D D I C ) ,
http://digestive.niddk.nih.gov/ddiseases/pubs/nash/,
last
visited January 6, 2012.
3
“[A] condition in which a person has symptoms of
gallbladder stones, yet there is no evidence of stones in the
gallbladder or biliary tract.”
Gallstones and gallbladder
disease - Introduction, University of Maryland Medical Center,
http://www.umm.edu/patiented/articles/what_gallstones_gallbl
adder_disease_000010_1.htm, last visited January 6, 2012.
2
Hypothyroidism,4
Gastroesophageal
Reflux
(GERD),5
Disease
severe allergies with memory loss, Pancreatitis,6 Depression,
and chronic cough.
Tr. 148.
The primary symptoms Plaintiff
experiences are severe pain in her abdomen and related fatigue
and depression.
Tr. 160-61.
The Plaintiff takes Lexapro for
her depression, and has taken Ultram ER, Hydrocodone, and
Oxycontin for her pain.
Tr. 57 and 161.
As of her appeal,
Plaintiff was also taking Amitriptyline for muscle relaxation,
depression,
and
as
a
sleep
aid,
Betaine
to
aid
in
the
breakdown of proteins, Dyazide and Toprol XL for high blood
pressure,
Nexium
for
acid
reflux,
salmon
oil
for
high
cholesterol, Synthroid for Hypothyroidism, Urosidial for NASH,
4
Hypothyroidism relates to an underactive thyroid gland
and often results in a low metabolic rate, weight gain, and
somnolence. Stedman’s Medical Dictionary 841 (26th ed. 2006).
5
“Gastroesophageal reflux disease (GERD) is a condition
in which the stomach contents (food or liquid) leak backwards
from the stomach into the esophagus (the tube from the mouth
to the stomach).
This action can irritate the esophagus,
causing heartburn and other symptoms.”
Gastroesophageal
reflux disease, Pub Med Health, http://www.ncbi.nlm.nih.gov
/pubmedhealth/PMH0001311/, last visited January 4, 2012.
6
“Pancreatitis is inflammation of the pancreas.
The
pancreas is a gland located behind the stomach. It releases
the hormones insulin and glucagon, as well as digestive
enzymes that help you digest and absorb food.” Pancreatitis,
Pub Med Health, http://www.ncbi.nlm.nih.gov/pubmedhealth/
PMH0002129/, last visited January 4, 2012.
3
Temazapam for insomnia, and Lyrtec, Singulair, Prednisone, and
Claritin for her allergies.
Tr. 183, 201, and 208.
Prior to 2005, Plaintiff underwent numerous surgeries:
a remote appendectomy7 in 1980, ovarian cyst surgery in 1982,
1986, 1987, and 1988, a complete oophorectomy8 in 1989, a
cholecystectomy9 with adhesiolysis10 in 1990 and 1992, right
7
An appendectomy is surgery to remove the appendix.
Appendicitis, Mayo Clinic, http://www.mayoclinic.com/health/
appendicitis/DS00274/DSECTION=treatments-and-drugs,
last
visited January 6, 2012.
The appendix sits at the junction of the small intestine and
large intestine. It’s a thin tube about four inches long . .
.
The function of the appendix is unknown.”
Digestive
Disorders
Health
Center,
WebMD,
http://www.webmd.com/
digestive- disorders/picture-of-the-appendix, last visited
January 6, 2012.
8
“Oophorectomy is a surgical procedure to remove one or
both of your ovaries.” Oophorectomy (overy removal surgery),
Mayo
Clinic,
http://www.mayoclinic.com/health/
oophorectomy/MY00554, January 6, 2012.
9
“Cholecystectomy is a surgical procedure to remove your
gallbladder - a pear-shaped organ that sits just below your
liver on the upper right side of your abdomen.
Your
gallbladder collects and stores bile - a digestive fluid
produced in the liver.”
Cholecystectomy (gallbladder
removal),
Mayo
Clinic,
http://www.mayoclinic.com/health
/cholecystectomy/MY00372, January 6, 2012.
10
Adhesiolysis is treatment “for the removal of Pelvic
Adhesions . . . through a surgical procedure.” Adhesiolysis,
feminine
hygiene,
http://www.femininehygiene.com/
adhesiolysis-pelvic-adhesions/, last visited January 6, 2012.
4
hemicolectomy11 in 1992, and a liver biopsy in 2001.
Tr. 278.
At the hearing before the ALJ in 2009, Plaintiff reported a
total of 22 abdominal surgeries since she was 18.
Tr. 65.
On April 15, 2005, Plaintiff began treatment at the
University of Iowa Hospitals and Clinics.
Tr. 285.
Dr.
Shirazi noted Plaintiff was suffering from abdominal pain,
which was “severely impacting her life” and causing her to
miss “many days of work.”
Tr. 285.
Despite recent tests -
colonoscopy, CT scan,12 two ultrasounds, and enteroclysis13 no abnormalities were found.
Tr. 285.
His final impression
was “[a]bdominal pain of an unknown etiology.”
Tr. 286.
It
11
A right hemicolectomy is the removal of the right side
of the colon. “The remaining bowel is then joined together.”
Right
Hemicolectomy,
Cedars-Sinai,
http://www.cedars-sinai.edu/Patients/Programs-and-Services/C
olorectal-Cancer-Center/Services-and-Treatments/Right-Hemico
lectomy.aspx, last visited January 6, 2012.
12
“A CT scan - also called computerized tomography or
just CT - combines a series of X-ray views taken from many
different angles to produce cross-sectional images of the
bones and soft tissue inside your body.”
CT Scan, Mayo
Clinic, http://www.mayoclinic.com/health/ct-scan/MY00309, last
visited January 6, 2012.
13
An x-ray exam used “to study the entire length of the
small bowel, in a very controlled manner, with barium (a white
liquid that permits the visualization of the small bowel).
Your Doctor Has Ordered: An Enteroclysis, University of Iowa
Hospitals and Clinics, http://www.uihealthcare.com/topics/med
icaldepartments/radiology/enteroclysis/index.html,
last
visited January 6, 2012.
5
was recommended Plaintiff be “evaluated by Psychiatry.”
Id.
On April 23, 2005, Dr. Bowdler, also of the University of
Iowa, indicated an impression of Dyspareunia14 and probable
Adhesive Disease.15
On April 27, 2005, Dr. Johlin noted that
Plaintiff reported chronic abdominal pain and concluded,
The most disquieting feature of this pain
is if one extrapolates that the “spells”
that the patient was seen for by Neurology
are pseudoseizures, and then one adds in
all the surgeries the patient has had, one
needs to be very concerned about the
14
Dyspareunia is painful intercourse, or a “persistent or
recurrent genital pain that occurs just before, during or
after intercourse . . . .” Painful intercourse (dyspareunia),
Mayo Clinic, http://www.mayoclinic.com/health/painful-inter
course/DS01044, last visited January 6, 2012.
15
Adhesive Disease indicates the presence of pelvic
adhesions, which can “cause many problems for millions of
women. From obstructed tubes associated with infertility, to
pelvic tenderness, and painful intercourse, to chronic pelvic
pain . . . The causes of adhesions are multiple but basically
the tissue irritation that produces the adhesive process
arises from an inflammatory event, or from trauma (i.e. post
surgical).”
J. Glenn Bradley, M.D., Pelvic Adhesions,
OBGYN.net, http://hcp.obgyn.net/laparoscopy/content/article/
1760982/1885089, January 6, 2012.
“An adhesion is a band of scar tissue that binds 2 parts of
your tissue together. . . Abdominal adhesions are a common
complication of surgery, occurring in up to 93% of people who
undergo abdominal or pelvic surgery.” Eugene Hardin, M.D. and
Christopher R. Westfall, D.O., Adhesions, General and After
Surgery,
emedicine
health,
available
at
http://www.emedicinehealth.com/adhesions_general_and_after_s
urgery/article_em.htm, last visited August 2, 2011.
6
potential that she may have a somatoform16
component to her illness.
This would
explain why she gets very little pain
relief with narcotics or even topical
anesthetics or injectable anesthetics.
Tr. 280.
In
July
abdominal
of
2005,
adhesions.
hospitalization
lasting
Plaintiff
Tr.
264.
eighteen
underwent
“It
was
days,
surgery
a
for
complicated
associated
with
pneumonia, pleural effusions,17 which required thoracentesis,18
and pericardial effusion.”19
Id.
The surgical report noted
16
“Somatoform disorders represent a group of disorders
characterized by physical symptoms suggesting a medical
disorder.
However, somatoform disorders represent a
psychiatric condition because the physical symptoms present in
the disorder cannot be fully explained by a medical disorder,
substance abuse, or another mental disorder . . . Often, the
medical symptoms patients experience may be from both medical
and a psychiatric illnesses.”
William R. Yates, M.D.,
Somatoform Disorders, Medscape, http://emedicine.medscape.com/
article/294908-overview, January 6, 2012.
17
“A pleural effusion is a buildup of fluid between the
layers of tissue that line the lungs and chest cavity.”
Pleural effusion, Pub Med Health, http://www.ncbi.nlm.nih.gov/
pubmedhealth/PMH0001150/, last visited January 6, 2012.
18
“Thoracentesis is a procedure to remove fluid from the
space between the lungs and the chest wall called the pleural
space.
It is done with a needle (and sometimes a plastic
catheter) inserted through the chest wall.” Thoracentesis,
WebMD, http://www.webmd.com/lung/thoracentesis, last visited
January 6, 2012.
19
“Pericardial effusion is the accumulation of excess
fluid around the heart.” Pericardial effusion, Mayo Clinic,
http://www.mayoclinic.com/health/pericardial-effusion/DS01124,
7
“[m]any dense adhesions of both the large and small bowel to
the anterior abdominal wall.”
Tr. 295.
Three months after
surgery, Dr. Thepjatri followed up with Plaintiff.
Tr. 291.
He
from
indicated
she
was
“abdominal pain.”
“doing
well”
and
suffered
Id.
On July 21, 2006, Plaintiff visited the Mayo Clinic.
262.
no
Tr.
Dr. Park indicated an initial impression of chronic
cough, Eosinophilic Bronchitis,20 GERD, persistent despite
medication, elevated liver function tests, a left parotid21
nodule, memory loss, and pulmonary nodules.
August
9,
2006,
Mayo
Clinic
radiology
Tr. 262-63.
report
An
indicates
Plaintiff had scattered linear atelectasis22 and an “[e]nlarged
last visited January 6, 2012.
20
“Eosinophilic bronchitis without asthma (EBWA) is
characterized by cough for at least 2 months, sputum
eosinophil count greater than 3%, and no evidence of airway
obstruction.”
Jussi
J.
Saukkonen,
M.D.,
Pulmonary
Eosinophilia,
Medscape
Reference,
available
at
http://emedicine.medscape.com/article/301070-overview, last
visited January 6, 2012.
21
The parotid gland is one of three primary salivary
glands in the human body. See Salivary Gland Cancer, Mayo
Clinic, http://www.mayoclinic.com/health/salivary-gland-cancer
/DS00708, last visited January 6, 2012.
22
“Atelectasis is the collapse of part or (much less
commonly) all of a lung.”
Atelectasis, Pub Med Health,
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001130/,
last
visited January 6, 2012.
8
diffusely fatty liver.”
Tr. 253.
Dr. Petty of the Mayo Clinic determined there was no
observable neurological cause of Plaintiff’s memory loss. Tr.
257.
Dr. Park added,
I cannot explain the memory loss at this
time. It is unusual for allergies to cause
memory loss. It is rather curious that her
memory loss is more seasonal in nature,
which makes dementia less likely.
One
consideration may be cirrhosis, possibly
when she takes the Zyrtec or Singulair she
decompensates
and
becomes
much
more
confused however this seem[s] less likely
also . . . One other consideration may be
a migraine equivalent which possibly the
seasonal allergies does trigger.
Tr. 273.
Dr. Koeg of the Mayo Clinic indicated Plaintiff’s CT
scans of her lungs were unremarkable other than “a few tiny
pulmonary nodules” and “some changes of atelectasis,” though
Plaintiff was experiencing 8 to 10 coughing fits a day.
264.
Tr.
A pulmonary function test also came back with a normal
range of results.
Id.
Dr. Park concluded,
I suspect the cough is multifactorial in
nature.
My leading diagnosis is habit
cough, however the dyspnea23 on exertion,
recent CT by report showing a right lower
23
“Dyspnea is a sign of serious disease of the airway,
lungs, or heart.”
Definition of Dyspnea, MedicineNet.com,
http://www.medterms.com/script/main/art.asp?articlekey=3145,
last visited January 6, 2012.
9
lobe infiltrate, and previous pericardial
effusion may be other leading diagnoses for
this persistent cough.
Tr. 272.
On May 18, 2007, Plaintiff was admitted to the Trinity
Regional Medical Center (Trinity) in Fort Dodge, Iowa, for
possible acute hepatitis.24 Tr. 387. Food seemed to aggravate
her pain, and she was nauseous.
Tr. 389.
On August 15, 2007, Plaintiff was again admitted to
Trinity.
Tr. 379.
Plaintiff arrived reporting a “constant
and stabbing” pain in her upper right quadrant due to her
NASH.
Id.
She was unable to eat upon admission.
Id.
On September 27, 2007, Plaintiff was again admitted to
Trinity
with
intractable
abdominal
slightly elevated liver enzymes.”
she had difficulty eating.
pain
“associated
Tr. 366.
Id.
with
When admitted,
Dr. Lorentson indicated
Plaintiff needed to “vigorously work on weight reduction.”
Upon admittance, she had a body mass index of 28 and needed to
reach a 22 or 23 to be healthy.
24
Id.
“Hepatitis is swelling and inflammation of the liver.”
Hepatitis, Pub Med Health, http://www.ncbi.nlm.nih.gov/pubmed
health/PMH0002139/, last visited January 6, 2012.
10
On October 9, 2007, Dr. Johlin, a liver expert at the
University of Iowa, saw Plaintiff for right upper quadrant
pain and enlarged and fatty liver.
Tr. 298.
He indicated
Plaintiff was not following her diet and exercise plan as
agreed upon during her last visit.
Tr. 298.
On November 23, 2007, Plaintiff was again admitted to
Trinity with “severe right upper quadrant pain of longstanding character with intermittent exacerbations . . . .”
Tr. 356. Her increase and decrease in pain corresponded to an
expected rise and fall in liver functions.
Id.
Dr. Marner
examined Plaintiff on her second day in the hospital and noted
“[i]t is really unusual to have this degree of pain with this
syndrome, although Dr. Johlin indicates that this at times can
be the case.”
2, 2007.
Tr. 360.
She was not discharged until December
Id.
On February 4, 2008, Plaintiff again visited Dr. Johlin
for pain, ranging from “moderately severe to horribly severe
in its intensity.”
Tr. 307.
Dr. Johlin noted Plaintiff had
gained 4 pounds since he last saw her.
Id
Dr. Johlin
informed Plaintiff liver cirrhosis was “completely avoidable”
with a proper diet.
Tr. 309.
noted,
11
In conclusion, Dr. Johlin
She needs to get rid of the sweets and
starches from the diet, convert to fruits
and vegetables and completely get rid of
nonabsorbable
fats
and
carbonated
beverages. It is difficult to understand
how someone who has required as many
hospitalizations as she has, was already in
the past demonstrated that achieving her
ideal body weight stops the pain cycles,
would not be motivated to improve her
muscle mass and her exercise tolerance to
avoid all of her pain and suffering.
Id.
On
February
26,
2008,
the
Plaintiff
was
yet
again
hospitalized with upper right quadrant pain, nausea, and
vomiting.
arrival.
Tr. 347.
Id.
Staff initiated fluid hydration upon
Dr. Lorentson noted, upon discharge, that
Plaintiff appeared committed to vigorously working on weight
reduction, which should help with her NASH and her abdominal
pain.
Id.
On March 20, 2008, Dr. Lorentson wrote to the Social
Services Administration on behalf of Plaintiff. Tr. 411. Dr.
Lorentson noted Plaintiff had “severe intractable abdominal
pain due to her [NASH] over the past year . . . which has
limited her ability to work and enjoy life.”
Id.
Dr.
Lorentson continued to note that Plaintiff had nearly full
functional capacity when well but had nearly no functional
capacity when subject to a bout of abdominal pain, which were,
12
“unfortunately quite frequent.”
Id.
He concluded,
[t]hese episodes of abdominal pain come on
unpredictably and because of this have
interfered with her ability to work.
Vigorous efforts here in Fort Dodge and
with the counseled assistance of Dr. Jolin
at the University of Iowa have not been
able to resolve her problems with severe
abdominal pain and disability due to this.
I believe that it is appropriate to
consider her as totally disabled until we
can better control [her] intractable
abdominal pain.
Id.
On May 1, 2008, Dr. Rogers conducted a psychological
assessment of the Plaintiff at the request of Disability
Determination Services.
with
Plaintiff,
Dr.
Tr. 450.
Rogers
In terms of his interview
indicated
her
“[i]mmediate
retention was good and she had no problems with recall of
personal information or recent and remote data.”
She “had
fair ability to comprehend and express abstract concepts . .
.
She did poorly with simple, mental calculations and such
tasks as serial sevens.”
Tr. 451.
Dr. Rogers concluded,
Present mental status and history as
presented by [Plaintiff] are consistent
with depression caused by difficulty
adjusting to chronic pain and inability to
work. She has some hysteroid and passivedependant personality traits,25 but they do
25
“The essential feature of Dependent Personality
Disorder is a pervasive and excessive need to be taken care of
13
not appear severe enough to account for her
pain and might actually be an effect of
chronic pain.
She is able to understand and remember
instructions, procedures, and locations.
Her pace is likely poor and even though
concentration is adequate, she cannot
concentrate well enough to be reliable in
carrying out instructions.
For brief
periods
she
is
able
to
interact
appropriately with supervisors, coworkers,
and the public. Judgment is good and she
would adjust adequately to changes in the
workplace except that adjustment would be
compromised by her constant pain.
Tr. 452.
On May 28, 2008, disability determination consultant, Dr.
Notch,
assessed
services.
Plaintiff’s
Tr. 467-69.
mental
RFC
for
disability
Dr. Notch indicated Plaintiff had no
significant limitations in understanding and memory, social
interaction, and adaptation.
Tr. 467-68.
He also determined
Plaintiff had some moderate limitations in her sustained
concentration and persistence, including the ability to carry
out detailed instructions, the ability to maintain attention
that leads to submissive and clinging behavior and fears of
separation. This pattern begins by early adulthood and is
present in a variety of contexts.
The dependent and
submissive behaviors are designed to elicit caregiving and
arise from a self-perception of being unable to function
adequately without the help of others.” American Psychiatric
Association, Diagnostic and Statistical Manual of Mental
Disorders, 721 (4th ed., Text Revision 2000).
14
and concentration for extended periods, and the ability to
perform
activities
within
a
schedule,
maintain
regular
attendance and be punctual with customary tolerances.
467.
Tr.
Dr. Notch did not examine the Plaintiff.
On May 29, 2008, disability determination consultant, Dr.
Wilson,
assessed
services.
Plaintiff’s
Tr. 472-78.
physical
RFC
for
disability
Dr. Wilson determined Plaintiff could
occasionally lift 20 pounds, frequently lift 10 pounds, stand,
sit, and/or walk about 6 hours in an 8 hour workday, and push
and/or pull an unlimited amount.
Tr. 472.
Dr. Wilson
indicated Plaintiff could frequently balance, stoop, kneel,
crouch, and crawl but could only climb stairs occasionally.
Dr.
Wilson
limitations,
also
no
indicated
Plaintiff
had
visual
limitations,
no
no
manipulative
communicative
limitations, and no environmental limitations other than she
should avoid hazard, such as machinery and heights, due to her
“spells or pseudoseizures.”
Id.
Dr. Wilson did not examine
Plaintiff and indicated there were no statements regarding the
claimant’s physical capacities on file.
Tr. 477.
In his
analysis, Dr. Wilson surmised Plaintiff’s allegations were
“only partially credible,” citing questions related to the
somatic features of her pain, that liver functioning did not
15
correlate with her symptoms, and her consistent non-compliance
with doctors’ recommended diet and exercise.
Tr. 478.
On June 3, 2008, Plaintiff came in for a check-up with
Dr. Lorentson.
Tr. 496.
His notes indicate she had seen a
nutritionist and had started a diet and exercise program. Id.
They also indicate she was following the program “vigorously”
and seemed to be having “some success.”
Id.
On June 29,
2008, Plaintiff was again hospitalized for a recurrence of her
right upper quadrant abdominal pain. Tr. 490. In a follow-up
exam, Dr. Lorentson indicated the “abdominal pain was still
with her.”
Tr. 500.
On January 11, 2009, Plaintiff was again hospitalized.
Dr. Schminke noted the Emergency Room determined “she would
benefit from hospitalization and some symptomatic treatment to
try
to
settle
down
her
nausea
and
vomiting.”
Tr.
539
Plaintiff had 11 loose stools in a day, difficulty eating, and
a high temperature of 104 degrees Fahrenheit.
Tr. 537.
In an adult function report, Plaintiff indicated her
impairments interfered with her ability to stand, reach, walk,
remember, complete tasks, concentrate, and get along with
others.
Tr. 171.
In a subsequent adult function report,
Plaintiff indicated her impairments were also beginning to
16
interfere with her ability to lift, bend, hear, climb stairs,
understand, and follow instructions.
Tr. 199.
On November 3, 2009, the ALJ conducted a hearing in which
Plaintiff testified.
Tr. 50-70.
Plaintiff claimed her NASH
caused her severe pain in her right upper quadrant.
Tr. 55.
On bad days, the pain travels to her back and shoulder blade.
Id.
Plaintiff described her pain as relatively constant but
also described periods of severe pain 3 to 4 times a month for
4 to 5 days at a time.
Tr. 56.
The pain was described as
“severe . . . like somebody is stabbing you and running a
knife back and forth.”
completely debilitated.
Tr. 55.
Tr. 56.
On the bad days, she is
Her pain causes deficits in
her ability to focus on things, and she lacks the energy to
get up and go to work.
The
Plaintiff
Tr. 64.
also
testified
about
her
allergies,
indicating she is “allergic to dogs, cats, horses, dust, dust
mites,
molds,
foods,
[and]
medications.”
Tr.
58.
Her
allergies can be so severe that there are times she does not
remember who her husband is, who her dog is, who her kids are,
where she is at, and what she is doing.
Id.
In the Fall and
Spring, she gets little hives on her face and her ears turn
red.
Tr. 59.
17
As to her physical limitations, on good days, Plaintiff
indicated she could walk for 15 minutes before needing a rest,
could stand for a half an hour to 45 minutes, and could sit
for about an hour.
Tr. 59-61.
On bad days, she could only
walk as far as the bedroom to the bathroom and would not
venture outside, stand for a half an hour to 45 minutes at a
time, and sit 10 to 15 minutes.
Tr. 59-61.
She reported
being able to lift 10 pounds occasionally, being unable to
lift her hands above her head, and having a limited capacity
to bend over.
Tr.
63.
When asked why she was able to
perform her past work as a nurse though her condition had predated the time she was fired, she indicated that her pain had
progressively gotten worse.
III.
Id.
LAW AND ANALYSIS
In
order
for
a
plaintiff
to
qualify
for
disability
benefits, they must demonstrate they have a disability as
defined in the Social Security Act (the “Act”).
defines a disability as an:
inability to engage in any substantial
gainful activity by reason of any medically
determinable physical or mental impairment
which can be expected to result in death or
which has lasted or can be expected to last
for a continuous period of not less than 12
months . . . .
18
The Act
42 U.S.C. § 423(d)(1)(A).
A.
The ALJ’s Decision
Under the authority of the Social Security Act, the
Social Security Administration has established a five-step
sequential
evaluation
process
for
determining
individual is disabled and entitled to benefits.
404.1520.
of
whether
activity,”
The five successive steps are:
Plaintiff
(2)
is
engaged
determination
of
in
whether
20 C.F.R. §
(1) determination
“substantial
whether
an
Plaintiff
gainful
has
a
“severe medically determinable physical or medical impairment”
that lasts for at least 12 months, (3) determination of
whether Plaintiff’s impairment or combination of impairments
meets or medically equals the criteria of a listed impairment,
(4) determination of whether Plaintiff’s RFC indicates an
incapacity to perform the requirements of his past relevant
work, and (5) determination of whether, given Plaintiff’s RFC
“age education and work experience,” Plaintiff can “make an
adjustment to other work.”
20 C.F.R. § 404.1520(4)(i-v).
At step one, if the Plaintiff is engaged in “substantial
gainful activity” within the claimed period of disability,
there is no disability during that period.
404.1520(a)(4)(i).
20 C.F.R. §
The ALJ determined Plaintiff had “not
19
engaged in substantial gainful activity since March 7, 2008,
the alleged onset date.”
Tr. 11.
At step 2, if the Plaintiff does not have a “severe
medically determinable physical or mental impairment” that
lasts at least 12 months, there is no disability.
§
404.1520(a)(4)(ii).
The
ALJ
following severe impairments:
found
Plaintiff
20 C.F.R.
had
the
“nonalcoholic steatohepatits
(NASH), depression, passive-dependent personality disorder,
with hysteriod qualities, status post abdominal surgeries and
allergies.”
At
Tr. 11.
step
3,
if
the
Plaintiff’s
impairments
meet
or
medically equal the criteria of an impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix 1, and last at least 12
months,
the
Plaintiff
is
404.1520(e).
The
impairment
combination
or
ALJ
deemed
found
of
disabled.
Plaintiff
20
impairments
§
“not
did
C.F.R.
have
an
meets
or
that
medically equals one of the listed impairments in 20 C.F.R. §
Part 404, Subpart P, Appendix 1.”
Tr. 11.
Before proceeding to step 4 and 5, the ALJ must determine
the Plaintiff’s RFC.
RFC is the “most” a person “can still
do” despite their limitations.
20 C.F.R. § 404.1545(a)(1).
The ALJ found Plaintiff had the following RFC:
20
the . . . capacity to perform light work as
defined in 20 C.F.R. 404.1567(b) except she
can lift and carry 20 pounds occasionally
and ten pounds frequently. She can perform
more than simple and repetitive work but
cannot be required to pay close attention
[to] details. She can tolerate superficial
contact with the public and work at a
regular pace.
Tr. 13.
At step 4, if, given Plaintiff’s RFC, Plaintiff can still
perform their past relevant work, there is no disability.
C.F.R. § 404.1520(a)(4)(iv).
20
The ALJ found the Plaintiff was
“unable to perform any past relevant work.”
Tr. 16.
At step 5, if, given Plaintiff’s RFC, age, education, and
work experience, the Plaintiff can make an adjustment to other
work, there is no disability. 20 C.F.R. §§ 404.1520(a)(4)(v).
This step requires the ALJ to provide “evidence” that the
Plaintiff
could
perform
“other
work
[that]
significant numbers in the national economy.”
404.1560(c)(2).
exists
in
20 C.F.R. §
In other words, at step 5, the burden of
proof shifts from the Plaintiff to the Commissioner of the
SSA.
1984).
Basinger v. Heckler, 725 F.2d 1166, 1168 (8th Cir.
At the administrative level, an ALJ generally calls a
Vocational Expert (VE) to aid in determining whether this
burden can be met.
21
The
ALJ
that
numbers
significant
found
in
there
the
were
“jobs
national
that
economy”
exist
that
in
the
Plaintiff could perform. Tr. 17. The ALJ’s determination was
based
on
the
VE’s
response
to
an
initial
consisting of the ALJ’s RFC finding.
hypothetical,
Tr. 17. Specifically,
the VE testified that a hypothetical person with the RFC the
ALJ assigned to Plaintiff could work as a personal attendant,
medical receiving clerk, or remittance clerk.
B.
Id.
Standard of Review
This
Court’s
role
in
review
of
the
ALJ’s
decision
requires a determination of whether the decision of the ALJ is
supported by substantial evidence on the record as a whole.
See 42 U.S.C. § 405(g); Owen v. Astrue, 547 F. 3d 933, 935
(8th
Cir.
2008).
Substantial
evidence
is
less
than
a
preponderance but enough that a reasonable mind might find it
adequate to support the conclusion in question.
Juszczyk v.
Astrue, 542 F.3d 626, 631 (8th Cir. 2008) (citing Kirby v.
Astrue, 500 F.3d 705, 707 (8th Cir. 2007)).
This Court must
consider both evidence that supports and detracts from the
ALJ’s decision.
Karlix v. Barnhart, 457 F.3d 742, 746 (8th
Cir. 2006) (citing Johnson v. Chater, 87 F.3d 1015, 1017 (8th
Cir. 1996)).
In applying this standard, this Court will not
22
reverse the ALJ, even if it would have reached a contrary
decision, as long as substantial evidence supports the ALJ’s
Eichelberger v. Barnhart, 390 F.3d 584, 589 (8th
decision.
Cir. 2004).
is
outside
Barnhart,
The ALJ’s decision shall be reversed only if it
the
459
reasonable
F.
3d
“zone
of
936
(8th
934,
choice.”
Cir.
Hacker
2006)
v.
(citing
Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994)).
This Court may also ascertain whether the ALJ’s decision
is based in legal error.
(8th Cir. 2001).
Laurer v. Apfel, 245 F.3d 700, 702
If the ALJ applies an improper legal
standard, it is within this Court’s discretion to reverse
Neal v. Barnhart, 405 F.3d 685, 688 (8th
his/her decision.
Cir. 2005); 42 U.S.C. 405(g).
C.
Plaintiff’s RFC and the Medical Evidence
An
ALJ’s
RFC
assessment
is
whether a plaintiff is disabled.
crucial
for
determining
It has been referred to as
the “most important issue in a disability case . . . .”
Malloy v. Astrue, 604 F. Supp. 2d 1247, 1250 (S.D. Iowa 2009)
(citing McCoy v. Schweiker, 683 F.2d 1138, 1147 (8th Cir.
1982)(en banc)).
A plaintiff’s RFC is a function-by-function
assessment of the most a plaintiff can still do despite his or
her impairments.
S.S.R. 96-8P, 1.
23
When determining RFC, the
ALJ must consider all of a plaintiff’s impairments, even those
which are not deemed severe, as well as limitations which
result from symptoms, such as pain. § 404.1545(a)(2) and (3).
RFC is “not the ability merely to lift weights occasionally in
a doctor’s office . . . it is the ability to perform the
requisite physical acts . . . in the real world.”
Malloy v.
Astrue, 604 F. Supp. 2d at 1250 (quoting 683 F.2d at 1147).
An RFC, though crafted by an ALJ, is ultimately a medical
question that should be based in the medical opinions on
record. Wildman v. Astrue, 596 F.3d 959, 969 (8th Cir. 2010).
The regulations define medical opinions as “statements from
physicians
and
psychologists
or
other
acceptable
medical
sources that reflect judgments about the nature and severity
of . . . impairment(s).”
20 C.F.R. § 404.1527(a)(2).
If the
medical evidence on record is inconsistent, an ALJ has a duty
to weigh the evidence.
§ 404.1527(c)(2).
In aid of this
task, the regulations create a general hierarchy of medical
evidence, distinguishing the relative weight various sources
of medical evidence should be given.
§ 404.1527(d).
At the
top of the hierarchy are opinions from treating physicians,
next
are
non-treating,
examining
source
opinions,
and,
finally, there are opinions from non-examining sources, such
24
as state consultants, whose opinions are limited to a review
of a plaintiff’s medical history.
Id.
Of course, this hierarchy is not absolute.
The opinions
of treating physicians are not automatically given more weight
than the opinions of examining and non-examining physicians.
The regulations go on to discuss a number of factors to be
considered when assessing the weight of medical opinions.
§
404.1527(d)(2)-(6). For instance, treating opinions should be
viewed in light of the “[l]ength of the treating relationship
and frequency of examination,” as well as the “[n]ature and
extent of the [treating] relationship,” including the type of
treatment provided
and “the extent of examinations and
testing . . . provided.”
§ 404.1527(d)(2).
In addition,
treating, examining, and non-examining source opinions should
all be evaluated in terms of the relevant evidence used to
support the opinion, the internal consistency of the opinion,
the specialization of the source of the opinion, and other
factors a plaintiff or others bring to the attention of the
Commissioner.
§ 404.1527 (d)(3)-(6).
25
The Plaintiff’s brief contends the ALJ failed to properly
weigh the medical evidence when determining Plaintiff’s RFC.
Specifically,
Plaintiff
contends
the
ALJ
failed
to
give
appropriate weight to Dr. Lorentson and Dr. Rogers’ medical
opinions.
1.
Dr. Lorentson’s Opinion
Dr. Lorentson, who specializes in internal medicine,
treated Plaintiff from May of 2007, to January of 2009, when
Plaintiff was repeatedly hospitalized for severe abdominal
pain.
Tr. 347, 366, 387-89, 543; Dr. John Lorentson MD, U
Compare Health Care, http://www.ucomparehealthcare.com/drs/jo
hn_lorentson/hospital.html, last visited, January 4, 2012. As
previously mentioned, on March 20, 2008, Dr. Lorentson wrote
the SSA on behalf of Plaintiff.
Tr. 411.
He indicated
Plaintiff had “severe intractable abdominal pain due to her
[NASH] over the past year . . . which [had] limited her
ability to work and enjoy life.” Id. Dr. Lorentson continued
on to note that Plaintiff’s functional limitations plummeted
when she was having an attack of abdominal pain, and these
attacks were “unfortunately quite frequent.”
Id.
Overall,
Dr. Lorentson concluded the extreme debilitating effects of
her attacks left her “totally disabled.”
26
Id.
The ALJ’s only criticism of Dr. Lorentson was that he
“relied quite heavily on the subjective report of symptoms and
limitations
provided
by
the
[Plaintiff]
and
seemed
to
uncritically accept as true most, if not all, of what the
claimant reported.”
Tr. 15.
On its surface, this criticism
is unreasonable and not supported by substantial evidence on
the record as a whole.
Dr. Lorentson treated Plaintiff when
her pain was severe enough to require hospitalization. Though
the record indicates the intensity of Plaintiff’s pain was
never fully explained to the satisfaction of some of her
doctors, it is clear that all of her doctors agreed that her
hospitalization was more likely than not related to her
underlying liver condition.
Tr. 347, 366, 387-89, 543.
When
hospitalized in November of 2007, the record indicates her
increase and decrease in pain corresponded to an expected rise
and fall of liver function.
Tr. 356.
Dr. Johlin had
indicated that Plaintiff’s level of pain, though rare in
relation to her underlying condition, was not completely out
of the ordinary.
Tr. 360.
Furthermore, regardless of the
underlying cause, it is clear Plaintiff’s symptoms were quite
real.
The
record
indicates
that,
during
most
of
her
hospitalizations, Plaintiff could not hold down food and
27
doctors had to give her fluids and nutrients intravenously.
Tr. 347, 366, 379, and 389.
As previously noted, when
Plaintiff was hospitalized on January 11, 2009, she had 11
loose
stools
in
a
day,
difficulty
eating,
and
a
high
temperature of 104 degrees Fahrenheit, hardly the kind of
symptoms a patient can fake. Tr. 537. Finally, Dr. Lorentson
was only one of three doctors to treat Plaintiff when she was
hospitalized at Trimark; Dr. Marner and Dr. Schminke also
treated
Plaintiff,
and
neither
expressed
any
doubt
that
Plaintiff’s pain was anything other than what she claimed.
Tr. 360 and 537.
The ALJ’s decision to ignore the opinions of
medical professionals who hospitalized and treated Plaintiff,
when the ALJ himself was not present, falls well outside the
reasonable zone of choice.
The Defendant’s brief argues that an opinion that a
Plaintiff is disabled is an administrative decision that must
be left to the Commissioner.
Docket No. 9, 14.
While the
Defendant accurately describes the base rule, it continues on
to stress that “adjudicators must always carefully consider
medical source opinions about any issue, including opinions
about issues that are reserved to the Commissioner.”
96-5P, 2.
S.S.R.
Naturally, a doctor’s opinion that a plaintiff is
28
disabled is not somehow discredited based on the doctor’s
unhedging clarity. On the contrary, such an opinion should be
given more consideration, even if that consideration ends in
a reasonable explanation of why the opinion was not given
great weight.
Again, the gist of Dr. Lorentson’s opinion was that the
“unpredictability” of Plaintiff’s acute attacks rendered her
incapable of holding a job.
Tr. 451.
The ALJ’s RFC finding
simply fails to give any credence to that opinion, i.e. it
does not include any reference to the debilitating effect of
her
severe
attacks.
Given
Dr.
Lorentson’s
hours
spent
examining and treating the Plaintiff in the controlled setting
of a hospital, his experience with her functional limitations
during her frequent periods of crisis, and his extensive notes
documenting the nature of her condition during her attacks, it
is difficult to understand why the ALJ failed to give his
opinion any weight.
2.
As
Dr. Rogers
previously
noted,
Dr.
Rogers
examined
and
then
completed a psychological assessment of Plaintiff at the
request of Disability Determination Services.
Tr. 450.
Dr.
Rogers noted Plaintiff suffered from depression related to her
29
severe
pain
and
assigned
her
a
GAF
score
of
55,
which
indicates moderate difficulties in occupational functioning.
American Psychiatric Association, Diagnostic and Statistical
Manual of Mental Disorders, 34 (4th ed., Text Revision 2000).
In relation to Plaintiff’s specific functional limitations,
Dr.
Rogers
concluded
her
pace
was
poor;
she
could
not
“concentrate well enough to be reliable in carrying out
instructions;” she was able “to interact appropriately with
supervisors,
coworkers,
and
the
public”
for
only
“brief
periods;” and her ability to “adjust adequately to changes in
the workplace . . . would be compromised by her constant
pain.”
Tr. 14.
The ALJ’s RFC finding indicated only that Plaintiff could
not “be required to pay close attention [to] details,” and
could tolerate only “superficial contact with the public.”
Tr. 13.
Noticeably absent in the ALJ’s assessment is Dr.
Richards’ findings of poor pace, an inability to reliably
carry out instructions, and a compromised ability to adjust to
changes in the workplace.
The ALJ gave two reasons for giving “minimal weight” to
Dr.
Rogers’
opinion:
(1)
Dr.
Rogers
only
examined
the
Plaintiff “on one occasion” and (2) Dr. Rogers’ findings were
30
“not consistent with his own examination results.”
Given that Dr. Rogers was the only medical opinion on
record
that
both
examined
and
made
findings
related
to
Plaintiff’s mental functional capacity, the ALJ’s first reason
for giving minimal weight to Dr. Rogers’ opinion makes little
sense.
There
were
no
other
examining physicians on record.
conflicting
opinions
from
The ALJ in fact adopted the
opinion of Dr. Notch, who never examined Plaintiff, and, as
such, via the ALJ’s own reasoning, should have been given less
weight.
As to the ALJ’s second justification, it is true that Dr.
Rogers’
examination
results
did
not
always
reflect
the
severity of his conclusions, but what the ALJ construes as
inconsistencies,
analysis.
Dr.
this
Court
Rogers
was
is
convinced
accounting
for
was
thoughtful
the
fact
that
Plaintiff could at times function quite normally, but, due to
the nature of Plaintiff’s condition, at other times, could not
function at all. The record is clear; Plaintiff’s pain varied
greatly, and a medical opinion that accounts for this is more,
rather than less, accurate.
Common sense dictates that pain,
especially in Plaintiff’s case, is not a laboratory constant.
31
3.
The Opinions of Non-Examining Consultants
The ALJ’s RFC assessment tracks the findings of Dr. Notch
and Dr. Wilson, the two non-examining consultants on record.
The regulations require an ALJ to “evaluate” the opinions of
state agency medical consultants in the same manner as other
medical opinion evidence is to be evaluated and, additionally,
to “explain in the decision the weight given” them. 20 C.F.R.
§ 404.1527(f)(2)(ii).
case.
This simply did not happen in this
The ALJ only briefly noted that the state agency
medical consultants’ opinions supported his decision, which
can hardly be characterized as an evaluation.
As
previously
noted,
“the
opinions
of
Tr. 16.
nonexamining
sources are generally, but not always, given less weight than
those of examining sources.”
Wilcockson v. Astrue, 540 F.3d
878, 880 (8th Cir. 2008). Furthermore, the Eighth Circuit has
a
long
standing
rule
that
“the
opinion
of
a
consulting
physician alone does not generally constitute substantial
evidence.”26
Krogmeier v. Barnhart, 294 F.3d 1019, 1024 (8th
26
This Court is aware that the ALJ adopted the opinions
of two non-examining consultants and not one consultant
“alone,” but, since Dr. Wilson dealt solely with physical
functional limitations and Dr. Notch dealt solely with mental
functional limitations, the totality of the ALJ’s RFC finding
essentially relies upon non-examining, consultative opinions
standing “alone,” i.e. without additional support on record.
32
Cir. 2002) (citing Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir.
2001).
Since Dr. Notch only dealt with Plaintiff’s mental
limitations, Dr. Wilson only dealt with Plaintiff’s physical
limitations, and there is no other medical opinions on record
supporting their findings, their opinions stand alone and, as
opinions of non-examining consultants, should not have been
afforded the status of substantial evidence on the record as
a whole.
Application of this rule is particularly persuasive
in this case, because other sources, who treated and examined
Plaintiff, give opinions that were consistent with disability.
Furthermore, after thorough review of Dr. Notch and Dr.
Wilson’s RFC assessments, this Court feels that, once the
regulatory guidelines for evaluating opinion evidence are
applied,
their
reliability.
box form.
opinions
have
very
little
indica
of
Dr. Notch’s assessment consisted of a check the
Only briefly at the end of his assessment did he
explain his findings, and, even then, he limited himself to a
laundry list of Plaintiff’s psychological treatment history.
He provided no basis for why his opinion varies from that of
Dr. Rogers, nor any analysis as to why Plaintiff’s treatment
history necessitates his conclusions.
Dr. Wilson also filled out a check the box form.
33
Though
Dr. Wilson completed his assessment after Dr. Lorentson wrote
the
SSA
to
express
his
opinion
related
to
Plaintiff’s
functional limitations and “total disability,” Dr. Wilson
indicated
there
were
no
statements
physical capacities on file.
fully
and
fairly
Tr. 477.
the
claimant’s
An ALJ has a duty “to
record”
prior
to
making
a
Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir.
decision.
2000).
develop
regarding
This duty requires that a consultative examiner be
given “any necessary background information” for purposes of
forming an opinion about the functional limitations caused by
a Plaintiff’s impairments.
20 C.F.R. § 404.1517.
Simply
stated, Dr. Wilson lacked the information necessary to form a
valid opinion. In Mateer v. Bowen, this Court recognized that
a consultative report made without review of the available
medical evidence is of “little or no value.”
222
(S.D.
indicated
Iowa
there
1988).
was
no
Finally,
given
information
on
702 F. Supp 220,
that
file
Dr.
Wilson
relating
to
Plaintiff’s functional capabilities, and Dr. Wilson never
examined Plaintiff, his assessment is, at the very least,
highly suspect, if not obsolete.
4.
The ALJ’s Reasoning
The ALJ raised some generalized arguments in support of
34
his RFC finding:
finding;
(2)
(1) objective medical evidence supports his
Plaintiff
has
a
limited
and
conservative
treatment record; and (3) Plaintiff failed to comply with her
treatment.
The ALJ failed to identify the objective evidence that
supports his RFC, but, as discussed above, the weight of the
evidence,
including
the
opinions
of
Dr.
Lorentson
and
Richards, clearly support an RFC significantly lower than that
found by the ALJ.
This Court has also considered that the ALJ’s first
justification
may
have
been
intended
to
imply
that
the
Plaintiff’s symptoms were not related to an actual underlying
physical or psychological condition. For instance, Dr. Johlin
indicated there might be a somatoform component to Plaintiff’s
illness, and Dr. Rogers indicated she exhibited “hysteroid and
passive-dependent personality traits,” but these observations
do not call into question the legitimacy of the Plaintiff’s
symptoms.
Tr. 280 and 452.
symptoms.
Somatoform
In fact, they explain those
Disorder
and
Dependent
Personality
Disorder are medically recognized psychiatric conditions and
are not code for a lack of credibility.
Association,
Diagnostic
and
American Psychiatric
Statistical
35
Manual
of
Mental
Disorders,
485
and
721
(4th
ed.,
Text
Revision
2000).
Regardless, as previously noted, there is also a good deal of
evidence on record that Plaintiff’s symptoms resulted from her
liver disease, and no doctor on record who actually met
Plaintiff questioned her sincerity.
The ALJ also failed to explain what made Plaintiff’s
treatment record conservative in nature.
Plaintiff
has
taken
Lexapro,
Ultram
As noted above,
ER,
Hydrocodone,
Oxycontin, Amitriptyline, Betaine, Dyazien, Toprol XL, Nexium,
salmon
oil,
Synthroid,
Urosidial,
Temazapam,
Lyrtec,
Singulair, Prednisone, and Claritin at one time or another for
an assortment of ailments.27 Tr. 183 and 201. The record also
indicates Plaintiff has undergone 22 abdominal surgeries since
she was 18.
Tr. 65.
She has also sought treatment from the
University of Iowa, Trimark, and the Mayo Clinic.
285, and 379.
Finally, throughout a 2 year period, she was
hospitalized at least 7 times.
and 537.
Tr. 262,
Tr. 347, 356, 366, 387, 490,
This Court is unaware of what else could have been
done to treat Plaintiff, and, given the ALJ’s silence on the
subject, he does not appear to know either.
27
Please see pages 3 and 4 above for the general purpose
of the individual medications Plaintiff has taken.
36
The ALJ’s final argument is that Plaintiff does not
qualify for disability under the Act because she failed to
follow through with her treatment.
“Impairments that are
controllable or amenable to treatment do not support a finding
of total disability.” Hutton v. Apfel, 175 F.3d 651, 655 (8th
Cir. 1999).
Dr. Johlin did indicate that, if Plaintiff
improved her muscle mass and exercise tolerance, she could
“avoid” her “pain and suffering,” but this note was made in
February of 2008, almost two years prior to the administrative
hearing, and more recent evidence indicated Plaintiff was
making a real effort to diet and exercise.
Tr. 309 and 496.
Furthermore, given the uncertain nature of the impairment
causing Plaintiff’s pain, it is unclear any doctor could have
reasonably suggested a course of treatment which would have
had a likelihood of alleviating Plaintiff’s symptoms.
5.
The Defendant’s Independent Arguments
The Defendant has forwarded two arguments not included in
the ALJ’s reasoning in support of the ALJ’s findings.
the
ALJ
did
not
assert
these
arguments,
this
Since
Court
is
concerned they may not be appropriate for consideration, and,
even if they are, this Court has serious doubts that the
substantial evidence on the record as a whole standard of
37
review
should
be
applied.
See
American
Textile
Mfrs.
Institute, Inc. v. Donovan, 452 U.S. 490, 439 (1981) (finding
“post hoc rationalizations . . . cannot serve as a sufficient
predicate
for
agency
action”).
Still,
this
Court
is
convinced, even if Defendant’s new arguments are afforded the
same deference as arguments presented by an ALJ, substantial
evidence on the record as a whole does not support them.
The Defendant first argues that, once Plaintiff began to
follow her dietary and exercise instructions, her bouts of
severe pain decreased.28
indicates
program
Plaintiff
“vigorously”
was
by
Docket No. 9, 12.
following
early
hospitalized later that month.
June
her
diet
and
exercise
of
2008
and
yet
Tr. 490.
hospitalized in January of 2009.
The record
was
Plaintiff was again
Clearly, diet and exercise
did not eliminate Plaintiff’s condition or even alleviate it
to such an extent that periods of hospitalization were no
longer necessary.
Defendant also points to Trimark check up
notes from April of 2009, indicating Plaintiff’s condition was
“stable,” but “stable” simply indicates Plaintiff’s condition
28
Notably, this directly contradicts the ALJ’s assertion
that Plaintiff failed to follow her suggested diet and
exercise, and this Court is concerned about the fairness of
forcing a Plaintiff to answer two contradictory justifications
for a finding of no disability.
38
was not getting worse.
Docket No. 9, 12.
There is absolutely
no evidence on record indicating Plaintiff was getting better,
and the absence of evidence cannot constitute substantial
evidence on the record as a whole.
Coulston v. Apfel, 224
F.3d
(Bye,
897,
concurring).
901
(8th
Cir.
2000)
Circuit
Judge,
Monthly hospitalizations are not a prerequisite
to a finding of disability, and this Court does not consider
Plaintiff’s
decrease
in
hospitalizations
to
constitute
substantial evidence on the record as whole that Plaintiff was
improving to the point that she could compete for full-time
employment in the national economy.
The Defendant also argues the record does not support
Plaintiff’s
“allegations
of
debilitating
limitations lasting more than 12 months.”
functional
Docket No. 9, 11.
In support of this argument, Defendant notes Plaintiff was
able to work until March of 2008, despite frequent emergency
room visits due to her debilitating pain.
Id.
However,
Plaintiff was only working five hour shifts as of 2005, and
her illness clearly interfered with her ability to attend work
regularly. Tr. 279. Further, the ALJ specifically found that
Plaintiff had numerous severe impairments lasting 12 months or
more and could not, despite a faulty RFC determination,
39
perform her past relevant work in accordance with the VE’s
testimony, and this Court agrees.
Tr. 11 and 16.
Though Plaintiff was able to continue to work for her
employer after she started to get sick, this Court refuses to
equate that with an ability to find other full-time work that
exists in significant numbers in the national economy once she
lost her job.
Finally, Plaintiff testified that her pain got
progressively worse after she was fired from her job. Tr. 63.
D.
As
Lay
Observations
of
Plaintiff’s
Limitations and Plaintiff’s RFC
previously
Plaintiff
has
experiences
discussed
consistently
severe
pain.
in
the
indicated
Plaintiff
facts
that
Functional
section,
she
described
the
regularly
relatively
constant pain with periods of severe pain 3 to 4 time a month
for up to 4 to 5 days at a time.
Tr. 56.
She described the
severe pain as though someone were “stabbing” her and “running
a knife back and forth.”
Tr. 55.
On her bad days, she claims
her pain completely debilitated her.
Tr. 56.
An ALJ must consider lay observations of a Plaintiff’s
limitations,
including
limitations
attributable
to
a
Plaintiff’s subjective accounts of pain or other symptoms. 20
C.F.R. § 404.1545(a)(3).
Based on the general substantial
evidence on the record as a whole standard of review, a
40
District Court should defer to an ALJ’s determination that a
plaintiff’s allegations lack credibility “as long as the ALJ
explicitly discredits a [plaintiff’s] testimony and gives a
good reason for doing so.”
Wildman v. Astrue, 596 F.3d 959,
968 (8th Cir. 2010) (quoting Schultz v. Astrue, 479 F.3d 979,
983 (8th Cir. 2007)).
The ALJ gave three reasons for giving little credibility
to Plaintiff’s subjective allegations of pain:
(1) Plaintiff
engaged in extensive daily activities; (2) the medical record
does not support Plaintiff’s subjective allegations; (3) and
Plaintiff was fired from her job for reasons other than
medical.
Tr. 14.
In support of his first reason, the ALJ listed a number
of daily activities Plaintiff admitted to engaging in as
evidence
undermining
Plaintiff’s
claimed
functional
limitations. Tr. 14. “Allegations of pain may be discredited
by
evidence
of
allegations.”
2001).
daily
activities
inconsistent
with
such
Davis v. Apfel, 239 F.3d 962, 967 (8th Cir.
While this Court agrees that the daily activities
Plaintiff was able to perform are, in most cases, inconsistent
with
a
finding
of
disability,
the
ALJ
simply
failed
to
consider the facts of the case before him and instead employed
41
stock reasoning typically used in cases where plaintiffs’ have
constant back pain or some other persistent illness.
Tr. 14.
As previously noted, in this case, the record indicates
Plaintiff’s pain is severe on 4 or 5 occasions a month for 4
or 5 days at a time.
The record also indicates that, though
she is capable of numerous daily activities, she requires
numerous breaks throughout the day.
Tr. 166.
Finally, the
Plaintiff has been repeatedly hospitalized throughout 2008 and
2009, indicating her condition crescendos and is frequently,
completely debilitating.
The question at step five of the
sequential evaluation process is not whether Plaintiff can
occasionally work, it is whether Plaintiff “can perform fullHogg v. Shalala, 45 F.3d 276, 278
time competitive work.”
(8th Cir. 1995) (citation omitted).
case,
there
is
nothing
In the context of this
inconsistent
about
Plaintiff’s
description of her daily activities and her description of the
nature of her primary impairment and the pain related thereto.
The
ALJ’s
subjective
second
allegations,
reason
for
doubting
Plaintiff’s
i.e.,
her
allegations
are
not
supported by the objective medical evidence, has already been
considered.
As noted above, when the objective medical
evidence is properly weighed in accordance with the regulatory
42
guidelines, it supports, rather than detracts from Plaintiff’s
subjective allegations.
As to the ALJ’s third reason, the record does indicate
Plaintiff was fired from her last job due to false allegations
she made against a co-worker.
“The fact that a claimant left
a job for reasons other than her medical condition is a proper
consideration in assessing credibility.”
578 F.3d 805, 816-17 (8th Cir. 2009).
Medhaug v. Astrue,
While a propensity to
file false claims may ordinarily shed doubt on a plaintiff’s
credibility,
the
Plaintiff,
throughout
the
disability
determination process, was forthcoming about her mistake,
indicating she accepted and regretted the incident and was
otherwise being truthful.
In addition, the record indicates
her actions may have been directly related to an allergic
reaction she had to Novocain after a trip to the dentist.
Tr.
55.
Furthermore, filing an impulsive, false complaint against
a co-worker does not equate to attempting to mislead the SSA.
First, Plaintiff misrepresentations did not relate to her
illness.
Second, Plaintiff, over the years, has filled out
several documents swearing that her allegations are true and
has been consistent through out.
43
She has also gone through
repeated
hospitalizations,
filled
out
form
after
form,
attended an administrative hearing, and filed two appeals, all
of which would require careful and extended deception, while
the incident leading to her being fired from her last job was
clearly impulsive and may have lacked intent.
Finally, if
peoples’ trustworthiness were judged in accordance with their
most shameful hours, none among us would have credibility.
For all these reasons, this Court is persuaded the incident
that precipitated Plaintiff being fired from her last job is
not a good reason for doubting her credibility in relation to
her
subjective
allegations
of
her
pain
and
resulting
functional limitations.
Though unimportant to this Court’s final decision in this
Order, this Court is persuaded it is necessary to note that
the ALJ erred in not encouraging the testimony of Plaintiff’s
husband.
Specifically, Plaintiff’s attorney told the ALJ the
husband was at the hearing to testify regarding Plaintiff’s
functional limitations due to her allergies.
The ALJ then
stated he had “no reason to doubt that she does what she
does.”
Tr. 65. The attorney then responded, “Then, I don’t
need to call him, Your Honor.”
Id.
At which point, the
hearing continued without testimony from the husband.
44
While
this may have been a simple misunderstanding, this Court
understands
why
statements
to
the
mean
Plaintiff’s
that
he
attorney
accepted
took
the
the
ALJ’s
Plaintiff’s
description of her impairments and found her credible and so
no further evidence was necessary.
The Eighth Circuit has
“frequently criticized” the failure of an ALJ “to consider
subjective testimony of family and others,” and in this case,
the actions of the ALJ foreclosed this possibility.
Smith v.
Heckler, 735 F.2d 312, 317 (8th Cir. 1984).
IV.
CONCLUSION
It is clear the ALJ erred in several respects.
The
question then becomes whether this Court should remand for
further consideration or solely for the purpose of awarding
benefits.
This Court has the authority to reverse a decision
of the Commissioner, “with or without remanding the cause for
rehearing.”
42 U.S.C. § 405(g).
However, the Eighth Circuit
has held that a remand for award of benefits is appropriate
only where “the record ‘overwhelmingly supports’” a finding of
disability.
Buckner v. Apfel, 213 F.3d 1006, 1011 (8th Cir.
2000) (citing Thompson v. Sullivan, 957 F.2d 611, 614 (8th
Cir. 1992).
However, “[w]here . . . a rehearing would simply
delay receipt of benefits, reversal is appropriate.”
45
Tennant
v. Schweiker, 682 F.2d 707, 710 (8th Cir. 1982).
This Court is persuaded the record overwhelming supports
a finding of disability as of June 3, 2008, when Plaintiff
began to follow the medical advice of her doctors but her
impairments persisted. Plaintiff was clearly, frequently, and
completely debilitated due to her NASH; and the ALJ failed to
properly weigh the medical evidence and improperly discredited
Plaintiff’s
subjective
allegations.
Therefore,
the
Commissioner’s decision is reversed and remanded solely for
the calculation of benefits.
IT IS SO ORDERED this 9th day of January, 2012.
__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa
46
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