Agan v. Commissioner of Social Security
Filing
10
REPORT AND RECOMMENDATIONS re 1 Complaint - recommend that the Commissioners decision be affirmed and judgment be entered in favor of the Commissioner and against Agan. Objections to R&R due by 10/29/2012. Signed by Magistrate Judge Leonard T Strand on 10/15/2012. (des)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
CENTRAL DIVISION
GARY A. AGAN,
Plaintiff,
No. C11-3061-MWB
vs.
REPORT AND RECOMMENDATION
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
____________________
Introduction
The plaintiff, Gary A. Agan, seeks judicial review of a final decision of the
Commissioner of Social Security (the “Commissioner”) denying his applications for
disability insurance benefits (“DIB”) and Supplemental Security Income (“SSI”)
pursuant to Titles II and XVI of the Social Security Act.
1383(c)(3).
42 U.S.C. §§ 405(g),
Agan contends that the administrative record (“AR”) does not contain
substantial evidence to support the Commissioner’s decision that he is not disabled.
For the reasons that follow, the undersigned recommends that the Commissioner’s
decision be affirmed.
Background
Agan was born in 1960, has a high school education, and previously worked as a
welder, assembler, mechanic and sheet metal installer. AR 32-34, 161, 196, 215-24,
262. On April 22, 2009, Agan applied for DIB and SSI, alleging disability beginning
on July 22, 2008 due to a back injury, diabetes, a foot injury and gout. AR 161, 191,
195.
The Commissioner denied Agan’s applications initially and again on
reconsideration. AR 58-61. Agan requested a hearing before an Administrative Law
Judge (“ALJ”). AR 74. On April 25, 2011, ALJ Jeffrey Marvel held a hearing at
which Agan and a vocational expert (“VE”) testified. AR 28-57. On May 25, 2011,
the ALJ issued a decision finding Agan not disabled since the alleged onset date of
disability of July 22, 2008. AR 10-27. Agan sought review of this decision by the
Appeals Council, which denied review on September 7, 2011. AR 1-6. The ALJ’s
decision thus became the final decision of the Commissioner. 20 C.F.R. §§ 404.981,
416.1481.
On November 10, 2011, Agan filed a complaint in this court seeking review of
the ALJ’s decision.
This matter was referred to the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) for the filing of a report and
recommended disposition of the case. The parties have briefed the issues, and the
matter is now fully submitted.
Summary of Medical Evidence
A. Dr. Mark Palit
Beginning in February 2005, Agan went to see Dr. Palit for low back and right
leg pain that had lasted for three months. AR 496. Agan explained that the pain
extended all the way down to his foot and was aggravated by increased activity. Id.
He described the pain as sharp and shooting and chiropractic care provided minimal
relief. Id. Dr. Palit ordered x-rays of Agan’s spine which showed decreased disc
height, mildly, at L5-S1. Id. Upon physical examination, the doctor noted that Agan
walked slowly but steadily, favoring the right leg. Id. He found that Agan’s range of
motion of the lumbar spine was reduced on flexion and extension and the straight leg
raise was positive on the right. Id. Palpation of the lower lumbar spine produced mild
discomfort. Id. Agan was diagnosed with lumbar radiculopathy and prescribed a pain
reliever. Id. An MRI scan was also scheduled.
At a follow-up two days later, Dr. Palit found that the MRI revealed lateral
recess stenosis at L4-L5. AR 494. He recommended an epidural steroid injection and
referred Agan to the Pain Center. Id. Agan was released to light duty work. Id.
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In March 2005, Agan reported that he was doing about “30-40% better” after his
injection. AR 494. After a second injection, he claimed that he experienced no relief
and he continued to have ongoing pain described as sharp and shooting, which was
aggravated by increased activity.
AR 493.
Dr. Palit recommended L4-5
decompression surgery, which was performed on April 22, 2005. AR 492-93.
After the lumbar decompression, Agan reported on May 5 that his right leg pain
had been resolved, but now he experienced left leg pain down to his foot with a burning
sensation. AR 492. Dr. Palit instructed Agan to continue walking, progressing from a
walker to a cane. Id. He prescribed Amitriptyline and Ibuprofen. Id.
Agan returned for a follow-up in June 2005. Because he still complained of left
leg pain, the doctor ordered another MRI with a contrast agent. AR 491. This MRI
revealed mild residual stenosis at L4-5 with a very mild disc bulge. Id. Dr. Palit
referred Agan to another doctor for a left L4 selective nerve root block. Id. After that
injection, Agan reported minimal pain. AR 489. His work duties were advanced to
5.5 hours per day. Id. In July 2005, Agan reported he was doing well and returned to
regular work duty. AR 489.
B. Dr. Mohamed K. Youssef
On January 3, 2007, Agan began seeing Dr. Mohamed Youssef, at Trinity
Regional Medical Center in Fort Dodge, Iowa for back pain that radiated down both
legs. AR 353. He was given an epidural steroid injection at L5-S1. AR 352. The
treatment notes indicate Agan had a previous epidural steroid injection in October 2006
and experienced good pain relief. Id. Agan returned for another injection on April 20,
2007.
AR 349-51.
During this visit the nurse prepared a report asking Agan to
identify how much his chronic pain limited his ability to perform certain activities. AR
351. Agan listed the following activities as limited a lot: climbing stairs, kneeling or
bending, getting out of the house, and pursuing hobbies or other recreational activities.
He also claimed to get 50 percent less sleep than usual due to his pain. Id.
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On April 29, 2007, Agan reported to the emergency room at Pocahontas
Community Hospital with symptoms of increased thirst, increased urination during the
night, and dizziness. AR 427-29. The nurse noted that he was a newly diagnosed
diabetic and his glucose was elevated. Id. Agan was admitted to acute care. He was
given diabetic education and started on insulin. Id. He returned to half-days at work
on May 8 and full-time on May 22. AR 451.
Agan received additional lumbar epidural steroid injections from Dr. Youssef.
On July 25, 2007, he still complained of continued low back pain radiating down both
legs. AR 347. He reported that climbing stairs, getting in or out of bed or a chair, and
pursuing hobbies or other recreational activities were limited a lot by his pain and he
was getting 50 percent less sleep than usual. AR 348. He was given epidural steroid
injections on that date and again on October 5, 2007. AR 342-45. Dr. Youssef noted
Agan had experienced excellent pain relief from this procedure in the past. AR 342.
On November 28, 2007, Agan agreed to a spinal cord stimulator trial. AR 33738. At this visit, he told the nurse that activities such as working with his hands,
performing tasks at work, and visiting with family and friends were also now limited a
lot by his pain in addition to the activities previously identified. AR 341. After the
spinal cord stimulation lead was inserted, Agan reported a numbing, tingling sensation
covering the area of pain and was very satisfied with the current stimulation. AR 337.
At a follow-up on December 3, 2007, Agan reported excellent pain relief from
the spinal cord stimulator trial, with about an 80 percent decrease in pain. AR 330.
Agan explained that he was more active throughout the trial and able to sleep through
the night without waking up. Id. Dr. Youssef’s impression was that Agan’s pain had
been secondary to lumbar degenerative disc disease, a herniated lumbar disc, and
lumbar radiculopathy. Id.
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C. Dr. Cassim Igram
Dr. Youssef recommended that Agan see Dr. Igram at the Iowa Ortho Center
regarding his chronic lumbar radiculopathy. AR 264-65. Agan reported that nothing
had adequately addressed his pain except the recent spinal cord stimulator trial and he
was interested in pursuing a permanent implant. AR 264. He stated that daily activity
made his pain worse. Id. Upon physical examination, Dr. Igram noted that flexion and
extension were limited and Agan had some stiffness with these maneuvers. Id. Agan
also had breakaway weakness to motor testing in both lower extremities with sensory
deficit in a non-dermatomal pattern in the right lower extremity. Id.
On December 24, 2007, Dr. Igram performed a thoracic laminectomy for
placement of a permanent spinal stimulator. AR 266. Agan was instructed to have the
stimulator programmed by doctors in Fort Dodge and he was released to return to work
on January 4, 2008. AR 269.
On January 11, 2008, Agan returned to Trinity Regional Medical Center in Fort
Dodge reporting pain in his low back and right leg. AR 327. He claimed he was not
getting adequate coverage in his lower back from the spinal cord stimulator. Id. Agan
was referred back to Dr. Youssef in the Pain Clinic to reprogram the stimulator. Id.
After attempting several different programs that did not provide coverage to the painful
area in Agan’s back, Dr. Youssef concluded that Agan needed to see Dr. Igram again
to discuss repositioning the stimulator. AR 323-24.
D. Dr. Russell Buchanan
On March 27, 2008, Dr. Buchanan began evaluating Agan at the Iowa Spine and
Brian Institute. AR 291-92. Agan reported constant pain in his low back that was
improved with lying down.
He claimed the pain was worse when sitting for a
prolonged period. Id. Dr. Buchanan noted that Agan had some difficulty walking on
heels and toes due to bilateral lower extremity pain. He also had difficulty squatting to
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regain standing and flexing forward to touch his knees to regain standing. Id. Agan
was working as a welder at this time. Id. Dr. Buchanan ordered a CT scan. Id.
Dr. Buchanan reviewed the CT scan results with Agan in mid-April. He found
that the scan demonstrated facet degeneration at L4-L5 that was “quite severe” and that
could be the possible generator of pain. AR 287. He ordered discography to determine
whether Agan’s dorsal column stimulator leads needed to be re-positioned. Id.
Dr. Robert Federhofer performed the discography and stated it was his
impression that Agan had “definite diskogenic pain at the L5-S1 level and probable
diskogenic pain at the 4-5 lumbar level.” AR 312.
Dr. Buchanan saw Agan again on June 26, 2008. AR 283-84. He noted that
Agan had difficulty achieving a standing posture and when he did, he had a flex posture
at the waist. He noted that Agan could not straighten up without significant low back
pain. Although Agan was able to walk on his heels and toes, he had difficulty squatting
to regain standing and flexing forward to touch his knees. Id. Based on the findings of
the discography study and the morphology of disks, Dr. Buchanan suggested surgery.
Id.
On July 22, 2008, Dr. Buchanan performed a lumbar interbody fusion at L4-L5
and L5-S1 with interbody cage placement and anterior plating. AR 306-09. The spinal
cord stimulator was also removed. AR 307. During the surgery Dr. Buchanan found
severe disc degeneration at L5-S1 with significant disc collapse and loss of integrity of
the structure of the disc as well as the cartilaginous endplate. AR 306. He noted the
L4-5 disc appeared hardier and somewhat healthier with the exception of a central area
of the disc that demonstrated severe deterioration. AR 306.
Agan reported to Trimark Pocahontas Family Practice on August 6, 2008, to
have suture removal from his back surgery. He also saw a physician for gout in his left
foot and arthritis in his right ankle. At that time, he also indicated that he stopped
taking Avandia for his diabetes because of the cost. AR 443.
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On September 8, 2008, Agan reported for a follow-up exam at the Iowa Spine
and Brain Institute. He stated he was doing very well in terms of pain control and was
not experiencing any of the leg pain he had before the surgery. AR 279. He indicated
that he still wore a bone stimulator on a daily basis and the physician assistant
encouraged him to continue this. AR 280. Agan inquired about when he could return
to work. Id. The physician assistant recommended physical therapy three times per
week for two weeks followed by work hardening for two weeks at which time they
could evaluate whether he was ready to return to work. Id.
A month later, Agan stated that physical therapy had helped and that he was
doing better apart from some occasional stiffness. AR 275. He stated he did not have
any pain in his legs. Id. His gait was coordinated and smooth and he was able to walk
on his heels and toes. He could squat and regain a standing position without difficulty
and could touch his knees while flexing forward. Id. Agan was released to work
4.5-hour days with no lifting over 30 pounds and limited bending and twisting. Id.
Agan reported to the emergency room at Pocahontas Community Hospital on
October 19, 2008, stating he had tripped and fell, exacerbating his chronic low back
pain. AR 400. Agan stated the pain was so severe he had difficulty getting back to his
chair. Id. Agan was out of pain medication at this time. After a physical examination,
the physician noted Agan’s motor skills and reflexes of the lower extremities were
normal. The physician also noticed some mild sensory deficits consistent with diabetic
peripheral neuropathy. Id. Agan was given a pain reliever and a note off work the
next day. Id.
Agan was back to working full-time in November 2008. At a follow-up exam,
he stated he was still experiencing constant back pain of 7 out of 10, but no pain in his
legs. AR 271. He said he was doing exercises at home, walking, and was continuing
to wear the bone stimulator. Id. The physician assistant suggested another injection in
an effort to relieve some of the pain near Agan’s right SI joint. AR 272.
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Dr. Youssef administered the bilateral sacroiliac injection on November 14,
2008. AR 315. The nurse’s notes indicate that Agan had been laid off for missing
work. AR 317. Agan described his pain level as 6 out of 10 and said his pain kept him
from doing activities such as climbing stairs, performing housework, and pursuing
hobbies or other recreational activities. AR 318. Other activities that were limited due
to his pain included walking, kneeling or bending, bathing or dressing himself, getting
in or out of bed or a chair, preparing meals, visiting with family or friends, and getting
out of the house. AR 318.
E. United Community Health Center
On February 10, 2009, Agan sought treatment at United Community Health
Center (“UCHC”) in Storm Lake, Iowa for back pain and other health issues. AR 390.
On March 12, 2009, Agan went to UCHC and complained of back pain. He was
prescribed Tramadol.1 AR 389. He was seen again on April 21, 2009, and prescribed
Diazepam.2 AR 388. On June 25, Agan returned complaining of chronic back pain
and diarrhea. AR 386. He had run out of Tramadol a week earlier and was taking an
extra dose of Diazepam each day.
appointment.
Id.
Id.
Both prescriptions were re-filled at this
The nurse practitioner noted that he ambulated slowly and had
difficulty getting up and down from the examination table. Id.
On July 14, Agan reported that he continued to have diarrhea and abdominal
pain.
AR 385.
The nurse practitioner noted that Agan was under stress as his
unemployment was about to run out. She also noted he was depressed and that he had
applied for disability benefits. Id. She prescribed an anti-depressant. Agan missed a
1
Tramadol is prescribed for the “management of moderate to moderately severe chronic pain in adults
who require around-the-clock treatment of their pain for an extended period of time.” Physician’s Desk
Reference 2694 (64th ed. 2010).
2
Diazepam is used to treat mild to moderate anxiety, some types of seizures, muscle spasms, nervous
tension, and symptoms related to alcohol withdrawal. It is in the class of drugs known as
benzodiazepines and is commonly sold under the brand name Valium. MARK MITCHELL ET AL., THE
GALE ENCYCLOPEDIA OF MENTAL HEALTH 489 (Kristin Key, ed., 3rd ed. 2012).
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scheduled appointment at the beginning of August, but on August 28 he reported to the
clinic with chest discomfort. AR 383. He explained that he had been doing yard work
the week before and developed pain in his left lower chest wall.
Id.
The nurse
practitioner assessed it as muscle strain and prescribed an anti-inflammatory. Id. On
September 9, Agan saw the nurse practitioner for refills of his pain medications. She
examined Agan finding tenderness around his spine and refilled his medications. She
also noted Agan’s depression was stable. AR 381.
On September 28, Agan visited Trimark Pocahontas Family Practice and
reported a sudden onset of low back pain radiating down his right leg after lifting a
chair. AR 433-34. The doctor assessed Agan with lumbar strain and prescribed a
muscle relaxant. Days later, Agan reported to UCHC with the same complaint from
the same incident. AR 380. He was prescribed a narcotic pain reliever. Id.
On October 6, Agan was taken to the emergency room after attempting suicide.
He had taken 10 to 15 Tramadol pills and left a note for his wife. AR 374, 379, 40203. The doctor noted Agan said it was due to “some bad news he received,” but he
then “blamed it on his wife and arguments about cooking and various other items.” AR
402. He was discharged the next morning with the recommendation to seek counseling.
AR 402. His provider at UCHC suggested he immediately begin counseling at Plains
Area Mental Health Center.3 AR 379.
Agan returned to UCHC on November 24 requesting refills of his back pain
medication, which were ordered.
AR 461.
He had a follow-up appointment in
December with no new complaints. AR 460. On January 13, 2010, Agan requested
refills of his back pain medication again, and they were ordered.
AR 459.
On
February 18, he had a follow-up appointment and stated he felt good. AR 457.
In March, he sought a consultation at UCHC for alcohol abuse. AR 470. Agan
told the nurse practitioner he drank alcohol every day for the entire day, estimating he
3
It is unclear whether Agan attended counseling at Plains Mental Health Center. No treatment notes
appear in the record.
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drank at least a 12-pack of beer per day. Id. He claimed that he did not have any
alcohol that day, although the nurse noted that he spoke loudly and slurred his speech.
Id. Agan stated that he had tried to get into an inpatient detoxification center at Fort
Dodge, but had to wait two weeks. Id.
On April 6, Agan returned to UCHC for sinus congestion, but also mentioned
that he was experiencing back pain.
He was prescribed Darvocet, a narcotic pain
reliever for his back. AR 469.
On April 21, 2010, Agan reported to UCHC stating that he had tried inpatient
alcohol treatment in Fort Dodge, but it had not gone well. AR 468. He also stated he
had been seeing a counselor at Compass Pointe in Spencer, Iowa. Agan told the nurse
practitioner he had lost the medications for his back pain and requested more Darvocet.
Id. The nurse practitioner offered to call the treatment center, but Agan said he had
already contacted the facility. Id. They agreed that Agan should not take any more
narcotics and the nurse practitioner prescribed an anti-inflammatory instead. Id. Agan
was educated on the consequences of drug seeking. Id.
On May 18, Agan reported to UCHC for a follow-up on his diabetes and a lipid
panel. AR 467. The nurse practitioner noted that she educated Agan on his diet and
suggested exercise of 30 minutes maximum, five days per week.
On June 8, Agan requested detoxification from alcohol and valium. AR 465. At
the time of the visit, the doctor thought Agan had overdosed on benzodiazepines. Id.
The police were contacted to take Agan to the hospital after he insisted on driving by
himself. Id.
In August 2010, Agan was referred to the Iowa Heart Center for chest
discomfort which had lasted for two weeks. AR 472. Outside of reflux disease, there
were no abnormal findings. AR 475.
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F. Orthopaedic & Sports Medicine Specialists, LLC
In December 2010, Agan began seeing Kristina Johnson, PA-C, for a right hand
injury. AR 488. He injured his hand after hitting a wall with a closed fist. Id. He
had visited the ER immediately after the injury, where he was x-rayed and his hand
placed in a splint. Id. He told Ms. Johnson that it was causing him pain and he was
experiencing numbness and tingling.
Id.
Upon physical examination, she found
bruising, swelling, and tenderness. Id. She also noted that Agan was able to flex and
extend his wrist very minimally due to the swelling and pain. Id. She instructed him to
start utilizing his hand and doing hand pumps to bring down the swelling. Id.
Upon follow-up for his hand, no changes were noted but Agan still complained
of pain. AR 487. He was prescribed hydrocodone. Id. The physician assistant noted
that he had significant decreased range of motion with his fingers and wrist and started
him on occupational therapy to improve this. AR 486. Agan stated that he was still
experiencing pain. Id.
Agan met with a surgeon on January 18, 2011 for evaluation of his right hand.
AR 485. Upon physical examination, the doctor noted there was some bruising and he
had tenderness in the mid shaft of the middle finger. Id. Flexing and extending certain
areas of the hand were also limited. Id. The doctor ordered tests and prescribed a pain
reliever with the instruction that this was the last time his office would be giving him
any pain medication. Id.
In February, the doctor noted that Agan’s hand was unchanged since his last
visit. AR 502. Agan still complained of discomfort, but the doctor noted, “I am at a
loss to find an appropriate diagnosis for his pain and discomfort.” Id. Agan was
referred to another hand surgeon for further evaluation and given a final prescription of
a pain reliever. Id.
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G. State Agency Medical Consultants
On June 12, 2009, Laura Griffith, D.O., performed a physical RFC assessment.
AR 35-62.
After reviewing Agan’s medical records, she concluded he could
occasionally lift and/or carry 20 pounds and frequently lift and/or carry 10 pounds. AR
356. She also thought Agan could sit, stand and/or walk six hours out of an eight-hour
workday. Id. She estimated that Agan could occasionally climb a ramp or stairs and
occasionally perform tasks that required balancing, stooping, kneeling, crouching, or
crawling. AR 357. She indicated that he could never be expected to climb a ladder,
rope, or scaffolds. Id.
In explaining her findings, Dr. Griffith noted that Agan’s treating sources
indicated he had normal muscle tone and strength. AR 360. While Agan reported that
he had constant back pain, she found his credibility somewhat eroded by his failure to
seek further care since November 2008. Id. She noted that two months after his fusion
surgery, he reported that he was doing very well in terms of pain control and the pain
he had in his legs was normal. AR 362. She also noted that a physical exam at that
time showed Agan had full range of motion in his extremities with normal muscle
strength and tone, with physical therapy and work hardening suggested.
Id.
In
addition, in November 2008, a month after Agan had been released back to work parttime with a 30-pound lifting restriction, he reported that he had been working full-time
but still experienced ongoing back pain. Id.
Dr. Griffith also commented on Agan’s daily activities. She noted that he takes
one-mile walks and lays on the couch. He has no difficulty with personal care, does
laundry, and mows the yard. He reported that he could lift 20 pounds. Id.
This physical RFC assessment was submitted to Gary Cromer, M.D., on
October 1, 2009 for reconsideration. AR 368. Additional allegations of worsening
pain, depression, and chronic diarrhea were considered. Id. Dr. Cromer noted that
new medical evidence included an abdominal ultrasound obtained for hepatomegaly and
abdominal pain. Id. This test showed only mild hepatomegaly with probable fatty
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infiltration, and a small right renal cyst. Id. An updated report on Agan’s activities of
daily living and a pain questionnaire were requested, but were never returned. Id. Dr.
Cromer concluded, “Evidence fails to document substantial worsening in physical
condition warranting alteration in the initial assessment. No opinion evidence is noted.
The initial assessment, supplemented by this update, remains appropriate and is
therefore affirmed.” Id.
Hearing Testimony
A. Plaintiff’s Testimony
At the administrative hearing, Agan testified he was 50 years old, graduated
from high school and had vocational training in auto mechanics from Lincoln Technical
Institute. AR 32. He stated he last worked part-time for Wal-Mart in 2009.
He
worked in the store’s tire and lube center four or five hours a day and four or five days
per week. AR 33. He held this job for a month, but quit because he could not handle
the pain in his back. Id. Agan also testified that he previously worked as a welder for
seven or eight years and as a sheet metal installer. AR 33-34. He testified that as a
sheet metal installer he carried a tool belt weighing 25 to 30 pounds and would
frequently lift objects weighing from 10 to 30 pounds. AR 34.
Agan testified that he was no longer working because of chronic low back pain.
Id. He explained that the pain radiates mainly down his right leg, is constantly present,
and increases with movement. AR 36. He estimated that the baseline level of pain is
about a seven on a scale of ten.
He was seeing a family practitioner for pain
management and was treated through medication, but not physical therapy. AR 44.
Agan testified that he had three surgeries on his back. AR 36. The first one was a
laminectomy in 2005, after which he was able to return to work. Id. The second
surgery was in 2007, when a neurostimulator was placed in his back. AR 36-37. Agan
was also able to return to work after this surgery. AR 37. The third surgery was in
2008 when the stimulator was removed. AR 37. Agan returned to work after this
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surgery, but stated his employer sent him home after determining he was not
performing his job. Id. Agan testified that when he tried to return about two weeks
later, he was told not to come back. Id.
Agan also discussed his other medical problems and the medications he was
taking for them. He was taking hydrocodone and Tramadol for his back pain but
testified that neither helped much with his pain. AR 38-39. Agan also stated that he
treated his diabetes with insulin and that his blood sugar had been high recently with
some of the medication he was taking. AR 40. Doctors had told him blood sugar goes
up with pain. Id. For gout, Agan said he took Allopurinol. Id. He informed the ALJ
that the problem with his hand was now being attributed to gout in his fingers. Id.
Agan’s alcoholism and suicide attempts were also discussed. Agan testified that
he had stopped drinking alcohol six months earlier and had completed a treatment
program. AR 40-41. He admitted that he had overdosed on Valium in June 2010,
which had been prescribed for anxiety.
AR 41-42.
Agan stated that he was still
suffering from anxiety and had begun treatment at the Berryhill Center for Mental
Health (“Berryhill”) for both anxiety and depression five months earlier. AR 42. He
stated that he was being treated with Paxil, an anti-depressant. Id. Agan estimated that
he suffered from anxiety and depression since he lost his job in 2008, and although his
medication helped, he still experienced symptoms. AR 43.
During the hearing, Agan rotated between sitting down and standing up. AR 44.
When the ALJ asked why he kept changing positions, Agan stated that because of the
chronic pain in his back, he was only able to sit in a chair for about 15 to 20 minutes.
Id. He could then stand or walk around for 15 to 20 minutes before he needed to sit
down again. Id. Agan testified that he thought he could walk about one block without
experiencing pain or discomfort. AR 44-45. He also thought he could stand in one
place for about 15 minutes before experiencing pain or discomfort. AR 45. Agan’s
other limitations included grasping or gripping things due to the gout in his right hand.
Id.
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Agan’s activities of daily living were also discussed at the hearing. AR 46. He
stated that he tries to maintain the house he lives in with his wife and two daughters as
best as he can by loading the dishwasher and doing laundry. Id. He stated he is able to
take care of his personal needs and can drive, but only for short trips. AR 47. He
testified that he goes to the grocery store about once a week with his wife but stays in
the car most of the time. Id. Agan later clarified that he was only able to get out of the
house and do activities on good days and that he experiences approximately 10 to 12
bad days per month. AR 49. He said he uses a walker to get out of bed or off the
couch, but he is able to walk without it. AR 48.
B. VE’s Testimony
Marian Jacobs also testified at the hearing. The ALJ asked her to consider four
hypotheticals to determine what type of work Agan could perform and if these jobs
were available in the regional and national economy. First, the ALJ asked her to
consider whether a person could perform any of Agan’s past work given the following
qualifications and limitations: the same age, education, and past work experience as the
claimant, who could occasionally lift 20 pounds and frequently lift 10 pounds, could
stand and walk six hours out of an eight-hour day, could sit for six hours out of an
eight-hour day, and could occasionally balance, stoop, crouch, kneel, crawl, and climb,
but could not climb ladders, ropes, or scaffolding. AR 52. The VE testified that a
person with these qualifications and limitations would not be able to perform any of
Agan’s past work. Id. However, she believed a person with the skills the claimant had
acquired in his past work could perform the job of order filler in a wholesale company
or a parts clerk in a retail store within the limitations of the first hypothetical. AR 5253. Light unskilled jobs such as an assembler, bottle inspector, or router could also be
performed and were available in substantial numbers in Iowa and the United States.
AR 53.
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For the second hypothetical, the ALJ asked if a person could perform any of
Agan’s past work if that person could stand and walk only two hours out of an eighthour workday. The VE answered “no” and stated that no sedentary jobs were available
which required the skills the claimant had acquired in his past work. AR 54. As for
unskilled sedentary jobs, the VE indicated that dresser and sorter of envelopes and
packages, assembler of buttons and notions, and final assembler of optical frames
would be appropriate and existed in substantial numbers in the regional and national
economy. AR 54-55.
For the third hypothetical, the ALJ asked the VE to consider the sedentary
hypothetical with the addition that the person would need to alternate sitting and
standing every 15 to 20 minutes. AR 55. The VE stated that such an individual could
not perform work in a competitive economy.
Finally, the ALJ had the VE consider the sedentary hypothetical with the
additions that the person would need to take more than two unscheduled breaks per day
and work at a slow pace for up to one-third of the day. Id. The VE testified that such
a person could not perform work in a competitive economy. Id. She clarified that her
answer remained the same regardless of the exertional level or if each of those three
limitations were taken singly. AR 56.
Summary of ALJ’s Decision
The ALJ made the following findings:
(1) The claimant meets the insured status requirements of the Social
Security Act through December 31, 2013.
(2) The claimant has not engaged in substantial gainful activity since July
22, 2008, the alleged onset date.
(3) The claimant has the following severe impairments: degenerative disc
disease of the lumbar spine, status post lumbar fusion and status post
implantation and removal of spinal neurotransmitter.
16
(4) The claimant does not have an impairment or combination of
impairments that meets or medially equals one of the listed impairments in
20 CFR Part 404, Subpart P, Appendix 1.
(5) After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform light work
as defined in 20 CFR 404.1567(b) such that he could lift twenty pound[s]
occasionally and ten pounds frequently, and could stand/walk for six
hours out of an eight-hour workday. He could sit for six hours out of an
eight-hour workday. He can only occasionally balance, stoop, crouch,
kneel or climb. He cannot climb ladders, ropes, or scaffolds.
(6) The claimant is unable to perform any past relevant work.
(7) The claimant was born on December 13, 1960 and was 47 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date. The claimant subsequently changed age category to
closely approaching advanced age.
(8) The claimant has at least a high school education and is able to
communicate in English.
(9) The claimant has acquired work skills from past relevant work.
(10) Considering the claimant’s age, education, work experience, and
residual functional capacity, the claimant has acquired work skills from
past relevant work that are transferable to other occupations with jobs
existing in significant numbers in the national economy.
(11) The claimant has not been under a disability, as defined in the Social
Security Act, from July 22, 2008, through the date of this decision.
AR 15-21.
In evaluating Agan’s impairments, the ALJ considered both mental and physical
impairments.
The ALJ recognized that Agan’s medically determinable mental
impairments included alcohol abuse, anxiety, and depression. AR 16. However, he
concluded that considered singly and in combination, these did not cause more than
minimal limitations in the claimant’s ability to perform basic mental work activities and
17
were therefore non-severe. Id. The ALJ used the “paragraph B” criteria set out in 20
CFR, Part 404 Subpart P, Appendix 1, which consists of four broad functional areas.
Id. He found that in the areas of activities of daily living, social functioning, and
concentration, persistence, and pace, Agan had mild limitations from his mental
impairments. AR 16. He also found that Agan had no episodes of decompensation of
extended duration. Id. In making these findings, the ALJ noted Agan’s statement to a
physician that he drank a 12-pack of beer per day. He also acknowledged that Agan
had intentionally overdosed on his medications in October 2009 and in June 2010, but
that he was stabilized and released home shortly thereafter. Id. In concluding that
Agan’s mental impairments were nonsevere, the ALJ explained:
The record reflects minimal treatment for mental health conditions and the
brief hospitalizations appear to be isolated events. The claimant’s
physical conditions appeared to be the focus of treatment notes, with only
sporadic mention that the claimant received medication for depression.
There are no treatment notes that indicate a mental health specialist has
placed any type of limitations on the claimant due to mental health
conditions.
Id.
The ALJ also addressed Agan’s physical impairments, including diabetes
mellitus and hyperlipidemia. He concluded that because both of these impairments
could be effectively controlled through medication and did not have more than a
minimal effect on his ability to perform basic work activities, they were non-severe.
AR 16-17.
The ALJ also found that the pain and discomfort in Agan’s hand was a nonmedically-determinable impairment.
AR 17.
The ALJ noted that there was no
objective medically-acceptable testing that could establish an impairment, and he also
relied on Dr. Guatam Kakade’s evaluation where he concluded after extensive testing,
“I am at a loss to find an appropriate diagnosis for his pain and discomfort.” Id.
18
In determining Agan’s RFC, the ALJ evaluated the credibility of Agan’s
subjective allegations. AR 17-19. He found that the record did not fully support the
severity of Agan’s allegations and that treatment seemed to have resolved or greatly
reduced the majority of his complaints, as the medical evidence failed to document a
continued pattern of complaints of recurrent symptoms. AR 19. He also found that
Agan required little ongoing medical treatment for his back pain, as evidenced by the
record. Id.
The ALJ gave great weight to the opinions of the State Agency medical
consultants’ opinions finding that they were internally consistent and consistent with the
evidence as a whole. Id.
Disability Determinations and the Burden of Proof
A disability is defined as the “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 that has lasted or can be expected to last for a
continuous period of not less than twelve months.”
42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A); 20 C.F.R. §§ 404.1505, 416.905. A claimant has a disability when the
claimant is “not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work
which exists . . . in significant numbers either in the region where such individual lives
or in several regions of the country.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
To determine whether a claimant has a disability within the meaning of the
Social Security Act, the Commissioner follows a five-step sequential evaluation process
outlined in the regulations. 20 C.F.R. §§ 404.1520, 416.920; see Kirby v. Astrue, 500
F.3d 705, 707 (8th Cir. 2007). First, the Commissioner will consider a claimant’s
work activity.
If the claimant is engaged in substantial gainful activity, then the
claimant is not disabled. 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i).
19
Second, if the claimant is not engaged in substantial gainful activity, the
Commissioner looks to see “whether the claimant has a severe impairment that
significantly limits the claimant’s physical or mental ability to perform basic work
activities.” Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003). “An impairment is
not severe if it amounts only to a slight abnormality that would not significantly limit
the claimant’s physical or mental ability to do basic work activities.” Kirby, 500 F.3d
at 707; see 20 C.F.R. §§ 404.1520(c), 404.1521(a), 416.920(c), 416.921(a).
The ability to do basic work activities is defined as “the abilities and aptitudes
necessary to do most jobs.” 20 C.F.R. §§ 404.1521(b), 416.921(b). These abilities
and aptitudes include (1) physical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling; (2) capacities for seeing, hearing,
and speaking; (3) understanding, carrying out, and remembering simple instructions;
(4) use of judgment; (5) responding appropriately to supervision, co-workers, and usual
work situations; and (6) dealing with changes in a routine work setting.
Id.
§§ 404.1521(b)(1)-(6), 416.921(b)(1)-(6); see Bowen v. Yuckert, 482 U.S. 137, 141,
107 S. Ct. 2287, 2291 (1987). “The sequential evaluation process may be terminated
at step two only when the claimant’s impairment or combination of impairments would
have no more than a minimal impact on her ability to work.” Page v. Astrue, 484 F.3d
1040, 1043 (8th Cir. 2007) (internal quotation marks omitted).
Third, if the claimant has a severe impairment, then the Commissioner will
consider the medical severity of the impairment. If the impairment meets or equals one
of the presumptively disabling impairments listed in the regulations, then the claimant is
considered disabled, regardless of age, education, and work experience. 20 C.F.R.
§§ 404.1520(a)(4)(iii), 404.1520(d), 416.920(a)(4)(iii), 416.920(d); see Kelley v.
Callahan, 133 F.3d 583, 588 (8th Cir. 1998).
Fourth, if the claimant’s impairment is severe, but it does not meet or equal one
of the presumptively disabling impairments, then the Commissioner will assess the
claimant’s RFC to determine the claimant’s “ability to meet the physical, mental,
20
sensory, and other requirements” of the claimant’s past relevant work. 20 C.F.R.
§§ 404.1520(a)(4)(iv), 404.1545(a)(4), 416.920(a)(4)(iv), 416.945(a)(4).
“RFC is a
medical question defined wholly in terms of the claimant’s physical ability to perform
exertional tasks or, in other words, 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)
(internal quotation marks omitted); see 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
The claimant is responsible for providing evidence the Commissioner will use to make
a finding as to the claimant’s RFC, but the Commissioner is responsible for developing
the claimant’s “complete medical history, including arranging for a consultative
examination(s) if necessary, and making every reasonable effort to help [the claimant]
get medical reports from [the claimant’s] own medical sources.”
20 C.F.R.
§§ 404.1545(a)(3), 416.945(a)(3). The Commissioner also will consider certain nonmedical evidence and other evidence listed in the regulations. See id. If a claimant
retains the RFC to perform past relevant work, then the claimant is not disabled. Id.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
Fifth, if the claimant’s RFC as determined in Step Four will not allow the
claimant to perform past relevant work, then the burden shifts to the Commissioner to
prove that there is other work that the claimant can do, given the claimant’s RFC as
determined at Step Four, and his or her age, education, and work experience. See
Bladow v. Apfel, 205 F.3d 356, 358-59 n.5 (8th Cir. 2000). The Commissioner must
prove not only that the claimant’s RFC will allow the claimant to make an adjustment to
other work, but also that the other work exists in significant numbers in the national
economy. Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); 20 C.F.R.
§§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
If the claimant can make an adjustment to
other work that exists in significant numbers in the national economy, then the
Commissioner will find the claimant is not disabled. If the claimant cannot make an
adjustment to other work, then the Commissioner will find that the claimant is disabled.
20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
21
At Step Five, even though the
burden of production shifts to the Commissioner, the burden of persuasion to prove
disability remains on the claimant. Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir.
2004).
The Substantial Evidence Standard
The court will affirm the Commissioner’s decision “if it is supported by
substantial evidence on the record as a whole.” Pelkey v. Barnhart, 433 F.3d 575, 577
(8th Cir. 2006); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security
as
to
any
fact,
if
supported
by
substantial
evidence,
shall
be
conclusive . . . .”). “Substantial evidence is less than a preponderance, but enough that
a reasonable mind might accept as adequate to support a conclusion.” Lewis, 353 F.3d
at 645. The Eighth Circuit explains the standard as “something less than the weight of
the evidence and [that] allows for the possibility of drawing two inconsistent
conclusions, thus it embodies a zone of choice within which the [Commissioner] may
decide to grant or deny benefits without being subject to reversal on appeal.”
Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994).
In determining whether the Commissioner’s decision meets this standard, the
court considers “all of the evidence that was before the ALJ, but it [does] not re-weigh
the evidence.” Wester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005). The court
considers both evidence which supports the Commissioner’s decision and evidence that
detracts from it. Kluesner v. Astrue, 607 F.3d 533, 536 (8th Cir. 2010). The court
must “search the record for evidence contradicting the [Commissioner’s] decision and
give that evidence appropriate weight when determining whether the overall evidence in
support is substantial.” Baldwin v. Barnhart, 349 F.3d 549, 555 (8th Cir. 2003) (citing
Cline v. Sullivan, 939 F.2d 560, 564 (8th Cir. 1991)).
In evaluating the evidence in an appeal of a denial of benefits, the court must
apply a balancing test to assess any contradictory evidence. Sobania v. Sec’y of Health
& Human Servs., 879 F.2d 441, 444 (8th Cir. 1989). The court, however, does not
22
“reweigh the evidence presented to the ALJ,” Baldwin, 349 F.3d at 555 (citing Bates
v. Chater, 54 F.3d 529, 532 (8th Cir. 1995)), or “review the factual record de novo.”
Roe v. Chater, 92 F.3d 672, 675 (8th Cir. 1996) (citing Naber v. Shalala, 22 F.3d 186,
188 (8th Cir. 1994)).
Instead, if, after reviewing the evidence, the court finds it
“possible to draw two inconsistent positions from the evidence and one of those
positions represents the Commissioner’s findings, [the court] must affirm the
[Commissioner’s] denial of benefits.” Kluesner, 607 F.3d at 536 (quoting Finch v.
Astrue, 547 F.3d 933, 935 (8th Cir. 2008)). This is true even in cases where the court
“might have weighed the evidence differently.” Culbertson, 30 F.3d at 939 (quoting
Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir. 1992)). The court may not reverse
the Commissioner’s decision “merely because substantial evidence would have
supported an opposite decision.” Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir.
1984); see Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir. 2005) (“[A]n administrative
decision is not subject to reversal simply because some evidence may support the
opposite conclusion.”).
Discussion
A. Plaintiff’s Credibility
Agan argues the ALJ failed to properly evaluate his subjective allegations under
Polaski v. Heckler.
Specifically, Agan disagrees with the ALJ that the objective
evidence fails to support Agan’s allegations of disabling pain. He also argues that the
failure to seek ongoing treatment for his back issues should not weigh against his
credibility because nothing in the record indicates that additional treatment would have
been beneficial. With regard to his activities of daily living, Agan claims that the
limited yard work and housework he performs cannot be considered inconsistent with a
claim of disability.
Finally, Agan references his earnings history, arguing that it
entitles him to substantial credibility because it demonstrates he is not out to seek
benefits to which he is not entitled.
23
The Commissioner argues the ALJ provided good reasons for his credibility
determination, which is supported by substantial evidence in the record.
The
Commissioner asserts that Agan simply provides an alternative view of the evidence,
which is the wrong standard for evaluating the ALJ’s credibility findings.
Commissioner
elaborates
on
the
evidence
supporting
the
ALJ’s
The
credibility
determination, pointing out that Agan’s daily activities, consisting of mile-long walks
and grocery shopping in addition to yard work and housekeeping, came from his own
admissions and were sometimes limited due to other non-alleged impairments, such as
chest pain.
Additionally, the Commissioner references the ALJ’s discussion about
Agan’s drug-seeking behavior, which weighed against his credibility.
In assessing credibility, the ALJ must consider “the claimant’s prior work
history, daily activities; duration, frequency, and intensity of pain; dosage,
effectiveness and side effects of medication; precipitating and aggravating factors; and
functional restrictions.” Medhaug v. Astrue, 578 F.3d 805, 816 (8th Cir. 2009) (citing
Polaski, 739 F.2d at 1322). The ALJ does not need to discuss each Polaski factor as
long as “he acknowledges and considers the factors before discounting a claimant’s
subjective complaints.” Moore v. Astrue, 572 F.3d 520, 524 (8th Cir. 2009). “If an
ALJ explicitly discredits the claimant’s testimony and gives good reasons for doing so,
we will normally defer to the ALJ’s credibility determination.” Halverson v. Astrue,
600 F.3d 922, 932 (8th Cir. 2010).
In assessing Agan’s credibility, the ALJ listed the Polaski factors and concluded
that after careful consideration of all the evidence “the record does not fully support the
severity of the claimant’s allegations.” AR 19. In reaching this conclusion, the ALJ
first noted that in May 2009 Agan said he was able to go on daily walks up to one mile,
could lift about 20 pounds, and sit for about ten minutes. AR 18, 206-13. “[A]cts
which are inconsistent with a claimant’s assertion of disability reflect negatively upon
that claimant’s credibility.” Halverson, 600 F.3d at 932 (internal quotation marks and
citation omitted). Agan also filled out a questionnaire about his pain and fatigue in
24
May 2009 in which he stated that to get comfortable he had to lie down, but also
claimed standing was the most comfortable position. AR 204-05.
At the hearing in
April 2011, Agan alleged he was only able to sit or stand/walk for fifteen to twenty
minutes at a time and could only walk one block. AR 44-45. ALJs may discount
claimants’ complaints if there are inconsistencies in the record as a whole. Guilliams v.
Barnhart, 393 F.3d 798, 801 (8th Cir. 2005). Even though these assertions occurred
nearly two years apart, nothing in the objective medical evidence demonstrates that
Agan’s alleged impairments worsened during that time.
Although Agan’s self-reported daily activities demonstrate some limitations, the
lack of significant restrictions imposed by a treating physician weighs against Agan’s
credibility.
See Smith v. Shalala, 987 F.2d 1371, 1374 (8th Cir. 1993) (lack of
significant medical restrictions is inconsistent with complaints of disabling pain). Selfimposed limitations without medical support in the record can be a basis for discrediting
the claimant’s allegations. See Blakeman v. Astrue, 509 F.3d 878, 882 (8th Cir. 2007)
(“The issue is not whether Blakeman was credible in testifying that he naps each
weekday afternoon he is not working. The issue is whether his heart condition compels
him to nap each afternoon.”).
The ALJ’s analysis of Agan’s daily activities and limitations, as described by
Agan himself and contained in the medical evidence, is supported by substantial
evidence in the record. As the ALJ acknowledged, Agan went through rehabilitation in
October 2008 to recover from his lumbar fusion and neurostimulator removal surgery
in July 2008. He was released to work part time and limited to 30 pounds of lifting by
his treating physician. AR 275. In November, 2008, Agan complained that he still had
low back pain but he was back to working full-time and demonstrated normal
movement of all extremities. He was encouraged to continue home exercises and build
up his walking to 30 minutes a day. AR 271-72. Other treatment notes in the record
also encouraged activity and physical therapy, and no physical limitations were imposed
on him. AR 279-80, 283-84, 406-07.
25
The ALJ also considered the objective medical evidence and whether it
corroborated Agan’s allegations. The ALJ noted:
The claimant does have a history of degenerative disc disease, status post
surgical intervention. This treatment appears to have resolved or greatly
reduced the majority of the claimant’s complaints. Although the claimant
initially complained of some recurrent symptoms, the medical evidence
failed to document a continued pattern of complaints. Significantly, the
claimant appears to have required little ongoing medical treatment for
back pain. The longitudinal medical record, when viewed as a whole,
fully supports the residual functional capacity detailed above.
AR 19. “It is well-settled that an ALJ may not discount a claimant’s allegations of
disabling pain solely because the objective medical evidence does not fully support
them.” O’Donnell v. Barnhart, 318 F.3d 811, 816 (8th Cir. 2003). However, absence
of objective medical evidence is a factor for the ALJ to consider when determining
credibility. Mouser v. Astrue, 545 F.3d 634, 638 (8th Cir. 2008). Furthermore, “[i]f
an impairment can be controlled by treatment or medication, it cannot be considered
disabling.” Brown v. Astrue, 611 F.3d 941, 955 (8th Cir. 2010).
The ALJ’s review of the objective medical evidence is substantially supported by
the record. Since Agan’s alleged onset date of disability—July 22, 2008—Agan’s back
pain has been treated with medication and his complaints of back pain correspond with
requests for refills of his medication. Immediately after his lumbar fusion surgery,
Agan reported that he was doing very well in terms of pain control. AR 279-80. After
a month of physical therapy, Agan reported occasional stiffness, but indicated the
physical therapy had helped. AR 275-76. Agan did not complain of back pain again
until October 2008 when he tripped and fell. He indicated that he was out of pain
medicine at the time, was prescribed a pain reliever and given a doctor’s note excusing
him from work the next day.
AR 400.
At a follow-up in November 2008 he
complained of constant back soreness that he rated as 7 out of 10 in terms of pain, but
was back to working full-time.
He was prescribed pain relievers, encouraged to
continue exercises, and instructed to follow-up in three months. AR 271-72.
26
In February 2009, Agan began seeing a nurse practitioner at UCHC on a regular
monthly basis, but only complained of back pain when he needed refills on his
medications. AR 390. He was initially prescribed Lortab, Diazepam, and Tramadol
for his back pain. AR 390-91.
In April, Agan indicated that he had taken Diazepam 10 mg twice per day which
“helped more” and his Diazepam prescription was increased. AR 388. During an
appointment in May, there were no complaints of back pain. AR 387. In June, Agan
indicated his Tramadol prescription had run out so he had started taking Diazepam 10
mg three times per day. AR 386. Both prescriptions were refilled. Id. In July, Agan
did not complain of back pain, but the nurse practitioner noted that he was under stress
because his unemployment was about to run out and he had applied for social security
disability benefits. AR 385. In August, Agan saw the nurse practitioner for chest pain
with no complaints of back pain. AR 383. In September, Agan had complaints of back
pain and requested a refill on his medication. AR 381. The nurse practitioner noted
Agan’s depression was stable at this time.
Id.
In October, Agan saw the nurse
practitioner after a sudden onset of back pain radiating down his leg from lifting a
chair. AR 380. He was prescribed a pain reliever. Id. He had reported to Trimark
Pocahontas Family Practice two days earlier for the same injury and was prescribed a
muscle relaxant. AR 433-34.
After Agan’s intentional overdose on Tramadol in October 2009, his back pain
medications were refilled in November.
AR 379, 461.
In December, he had no
reports of back pain. AR 460. In January 2010, Agan indicated he needed a refill on
his back pain medication and his prescriptions were refilled. AR 459. In February, he
began seeing a new nurse practitioner. AR 457. There were no complaints of back
pain noted, but his Diazepam prescription was refilled. Id. In March, there were no
complaints of back pain. AR 470. In April, he complained of back pain and was
prescribed Darvocet.
AR 469.
Later that month, he returned requesting more
Darvocet, indicating he had lost his medications while he was seeking treatment from
27
an inpatient alcohol detoxification center. AR 468. The nurse practitioner educated
Agan on drug seeking and Agan agreed that he should not take narcotics at that time.
AR 468.
This pattern seems to indicate either that Agan’s back problems were
substantially controlled by medication or that he was seeking medication for reasons
other than his back pain. Physical examinations at times of complaints mostly revealed
tenderness around the spine and on one occasion, difficulty getting up and down from
the exam table. AR 380-81, 386, 389, 459. Regardless of the reason for this pattern,
there is substantial evidence in the record for the ALJ to find that Agan’s subjective
allegations were not entirely credible based on the objective medical evidence.
“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). Drug-seeking
behavior “cast[s] a cloud of doubt” over the legitimacy of a claimant’s numerous doctor
visits and allegations of disabling pain. Anderson v. Shalala, 51 F.3d 777, 779 (8th
Cir. 1995).
Agan argues that his daily activities and the objective evidence are consistent
with a finding of disability. This argument reflects the wrong standard of review. The
court “will disturb the ALJ’s decision only if it falls outside the available ‘zone of
choice.’ An ALJ’s decision is not outside the ‘zone of choice’ simply because [the
court] might have reached a different conclusion had [the court] been the initial finder
of fact.”
Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir. 2007) (citing Hacker v.
Barnhart, 459 F.3d 934, 936 (8th Cir. 2006)). Likewise, if it is possible to draw two
inconsistent positions from the evidence and one of those positions represents the
Commissioner’s findings, [the court] must affirm the ALJ’s decision. Wiese v. Astrue,
552 F.3d 728, 730 (8th Cir. 2009) (quoting Mapes v. Chater, 82 F.3d 259, 262 (8th
Cir. 1996)). The court does “not reweigh the evidence or review the factual record de
novo.” Roe, 92 F.3d at 675 (quoting Naber, 22 F.3d at 188). As analyzed above, the
ALJ’s findings of inconsistencies in Agan’s daily activities, and the lack of objective
28
medical evidence to support Agan’s impairments is supported by substantial evidence in
the record. Therefore, the ALJ’s decision is given deference and Agan’s argument that
the evidence could be viewed to support a finding of disability is of no consequence
under the standard of review before this court.
Finally, Agan argues that he was entitled to substantial credibility based on his
work history which, he argues, demonstrates that he is not out to claim benefits to
which he is not entitled. While a good work history usually weighs in favor of a
claimant’s credibility, see Nunn v. Heckler, 732 F.2d 645, 648 (8th Cir. 1984) (“a
claimant with a good work record is entitled to substantial credibility when claiming an
inability to work because of a disability”), continuing to work with an alleged disability
and applying for unemployment benefits undermines that credibility.
“Working
generally demonstrates an ability to perform a substantial gainful activity.” Goff, 421
F.3d at 792 (citing Naber, 22 F.3d at 188-89).
A claim for unemployment
compensation adversely affects a claimant’s credibility because an applicant for
unemployment compensation must hold himself out as available, willing and able to
work. Jernigan v. Sullivan, 948 F.2d 1070, 1074 (8th Cir. 1991). “Acts which are
inconsistent with a claimant’s assertion of disability reflect negatively upon that
claimant’s credibility.” Medhaug, 578 F.3d at 817.
While Agan does have an extensive work history of approximately thirty years,
the record also indicates he continued to work and hold himself out as able to work
after his alleged onset date of July 22, 2008. AR 186-87. At the hearing, Agan told
the ALJ that his most recent job was with Wal-Mart in 2009. AR 33. He said that he
worked there part-time for a month and quit because of his back pain. Id. Agan also
returned to working full-time as a welder in November 2008 after his third back
surgery.
AR 257, 271.
A report from the National Directory of New Hires4
4
The NDNH is a national database of wage and employment information maintained by the Federal
Office of Child Support Enforcement. It includes information as to new hires, quarterly wages, and
unemployment benefits. The Commissioner has authority to request this information under 42 U.S.C.
29
(“NDNH”) indicates that Agan last received wages from his welding job in the fourth
quarter of 2008 and began collecting unemployment benefits at that time. AR 183-84.
The NDNH report also indicates Agan continued receiving unemployment benefits until
he was hired by Wal-Mart in May 2010.5 AR 188-90. While Agan’s jobs after his
alleged onset date may not have risen to the level of substantial gainful activity, the
ALJ did not err by discounting Agan’s credibility based on jobs Agan held after his
onset date instead of crediting Agan’s allegations based on his extensive work history.
See Medhaug, 587 F.3d at 816 (holding the ALJ properly considered the claimant’s
employment positions maintained after the alleged onset date in helping determine the
claimant’s credibility).
The ALJ’s credibility determination based on Agan’s daily activities, the lack of
objective evidence supporting his limitations or disabling impairment, his limited
treatment or complaints after his onset date, and other inconsistencies in the record is
supported by substantial evidence.
B. Development of the Record
Agan argues the ALJ erred by failing to develop the record in two separate areas
necessary to making a proper disability determination. First, he alleges the ALJ did not
obtain work-related limitations from a treating or examining source. Second, he argues
the ALJ should have developed the record more concerning the limitations of Agan’s
diabetic peripheral neuropathy.
Finally, he argues the ALJ should have requested
Agan’s mental health records or ordered a consultative examination to properly
determine whether Agan’s mental impairments were disabling.
The Commissioner
responds that there was enough medical evidence in the record to support the ALJ’s
§ 653(j)(4). See U.S. Dept. of Health and Human Servs., Admin. for Children and Families, A Guide
to the National Directory of New Hires, located at http://www.acf.hhs.gov/programs/cse/newhire
/library/ndnh/background_guide.htm.
5
Agan appears to have erred when he testified that he worked for Wal-Mart in 2009.
30
RFC finding without having to seek specific work-related limitations from treating or
examining sources and that further development of Agan’s diabetic peripheral
neuropathy and mental impairments was not required because substantial evidence
supported the ALJ’s finding that these impairments were not severe.
An ALJ has a duty to develop the record fully and fairly, independent of the
claimant’s burden to press her case. Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir.
2010). A social security hearing is a non-adversarial proceeding, and the ALJ must
develop the record so that “deserving claimants who apply for benefits receive justice.”
Battles v. Shalala, 36 F.3d 43, 44 (8th Cir. 1994).
1. Work-Related Limitations from a Treating or Examining Source
The ALJ must determine a claimant’s RFC based on all the evidence including
“medical records, observations of treating physicians and others, and an individual’s
own description of his [or her] limitations.” Strongson v. Barnhart, 361 F.3d 1066,
1070 (8th Cir. 2004). “RFC is a medical question, and an ALJ’s finding must be
supported by some medical evidence.” Guilliams, 393 F.3d at 803. An ALJ may need
to order medical examinations and tests when the medical evidence in the record is
insufficient to determine whether the claimant is disabled. Barrett v. Shalala, 38 F.3d
1019, 1023 (8th Cir. 1994).
In arguing the ALJ erred by failing to obtain work-related limitations from a
treating or examining source, Agan cites Nevland v. Apfel, 204 F.3d 853, 857 (8th Cir.
2000). The claimant in Nevland was unable to do past relevant work. Id. at 858. In
determining the claimant’s RFC to do other kinds of work, the ALJ relied solely on the
opinions of non-treating, non-examining physicians who reviewed the reports of
treating physicians when assessing the claimant’s ability to function in the workplace.
Id. The court reversed and remanded the case because there was no medical evidence
about how the claimant’s impairments affected his ability to function at the time. Id.
31
Here, the ALJ considered medical evidence shortly after his back surgery, which
indicated Agan’s gait was coordinated and smooth. He was able to squat and regain a
standing position without difficulty and was able to touch his knees while flexing
forward. In addition, he had full and nontender range of motion in his upper and lower
extremities with no evidence of instability. Agan completed physical therapy three
times a week for two weeks followed by work hardening for two weeks. AR 279-80.
Agan returned to work part-time in October 2008 with the physician assistant
suggesting a limitation of no more than 30 pounds lifting and limited bending and
twisting. AR 275-76. Agan was back to working full-time as a welder in November
2008 with no limitations noted. AR 271-72.
No functional limitations were placed on Agan outside the 30-pound lifting limit
following his surgery. Agan’s only complaints of back pain after his surgery were
related to medication refills or injuries that exacerbated his back pain. AR 380, 386,
389, 433. Most examinations only noted tenderness of the spine. AR 380-81, 389,
459. After his back surgery, Agan primarily sought treatment for unrelated medical
issues including chest pain and a hand injury. AR 476-80, 485.
The ALJ’s RFC assessment is supported by substantial evidence in the record,
including medical evidence. Agan was working full-time in November 2008, despite
complaints that his back pain was constantly at a 7 out of 10. AR 271. Physical
examinations following his surgery indicated that he had normal functioning of his
extremities. AR 271, 275, 279. These medical evaluations are enough for the ALJ to
determine Agan’s limitations in the workplace. See Cox v. Astrue, 495 F.3d 614, 620
n.6 (8th Cir. 2007) (the lack of an explicit reference to “work” in proximity to a
description of medically-evaluated limitations does not make it impossible for the ALJ
to ascertain work-related limitations from the evaluation).
The ALJ’s RFC also has significantly more limitations than the 30-pound lifting
limit imposed when he was released to return to work following his surgery. This
reflects a consideration of Agan’s subjective allegations and the medical evidence
32
supporting degenerative disc disease. No functional limitations were placed on Agan
after October 2008 and nothing in the record suggests his condition later worsened. In
fact, the medical records reveal that he primarily had tenderness over his spine and only
complained of pain when he needed refills on his medication.
This constitutes
substantial evidence, including some medical evidence, which addresses Agan’s ability
to function in the workplace and supports the ALJ’s RFC determination. No further
development of the record was necessary for the ALJ to reach this conclusion.
2. Diabetic Peripheral Neuropathy
Agan also argues the ALJ failed to develop the record with respect to his diabetic
peripheral neuropathy. He references a treatment note before his surgery in which the
doctor opined that bilateral lower extremity numbness and tingling was 25% of his
problem, although Agan admits that it is not clear how much the numbness and tingling
(if any) can be attributed to Agan’s peripheral neuropathy. AR 283. Agan contends
this aspect of the record should have been more fully developed by the ALJ.
The Commissioner points out that in the same treatment note the doctor also
stated that back pain was 75% of the problem. AR 283. The Commissioner argues the
ALJ did not need to develop this issue any further based on this record which indicates
Agan’s impairment from diabetes was non-severe.
In evaluating Agan’s diabetes mellitus as an impairment, the ALJ stated, “After
receiving medication and diabetic counseling, his symptoms appeared to be stable and
do not have more than a minimal effect on his ability to perform basic work activities.”
AR 16-17. He therefore found it to be a non-severe impairment.
An ALJ may order medical examinations and tests when the medical records
presented to him or her constitute insufficient medical evidence to determine whether
the claimant is disabled. Barrett, 38 F.3d at 1023 (citation omitted).
A “severe
impairment is defined as one which ‘significantly limits [the claimant's] physical or
33
mental ability to do basic work activities.’ ” Pelkey v. Barnhart, 433 F.3d 575, 577
(8th Cir.2006) (quoting 20 C.F.R. § 404.1520(c)).
The ALJ adequately developed the record concerning Agan’s diabetes mellitus
and diabetic peripheral neuropathy. Agan’s sensory deficits that were consistent with
diabetic peripheral neuropathy were described as “mild”.
AR 400.
Agan took
medication for his peripheral neuropathy and it was never the focus of any treatment
after surgery. There is no evidence that he had significant physical limitations as a
result of peripheral neuropathy. The record contains substantial evidence supporting
the ALJ’s conclusion that Agan’s diabetic peripheral neuropathy was a non-severe
impairment and it did not require further development by the ALJ.
3. Evidence of Mental Impairments
Agan also argues the ALJ failed to fully and fairly develop the record because he
did not obtain Agan’s mental health records from the five months prior to the
administrative hearing and did not order a consultative evaluation to help determine
whether Agan’s mental impairments were severe. The Commissioner responds that
substantial evidence supports the ALJ’s determination that Agan’s mental impairments
were non-severe and additional evidence was not needed to develop this issue further.
“Some of the factors an ALJ may consider when determining a claimant’s mental
impairments are (1) the claimant’s failure to allege mental impairments in his
complaint, (2) failure to seek mental treatment, (3) the claimant’s own statements, and
(4) lack of medical evidence indicating mental impairment.” Partee v. Astrue, 638
F.3d 860, 864 (8th Cir. 2011).
In determining whether a claimant’s mental
impairments are “severe,” the regulations require the ALJ to consider “four broad
functional areas in which [the ALJ] will rate the degree of [the claimant’s] functional
limitations: Activities of daily living; social functioning; concentration, persistence, or
pace;
and
episodes
of
decompensation.”
20
C.F.R.
§§
404.1520a(c)(3),
416.920a(c)(3). If the degree of limitation in the first three functional areas is “none”
34
or “mild” and there are no episodes of decompensation, then the ALJ should conclude
that it is a non-severe impairment unless the evidence indicates otherwise.
404.1520a(d)(1), 416.920a(d)(1).
Id. §§
A “severe” impairment is one that significantly
limits the claimant’s physical or mental ability to perform basic work activities. See 20
C.F.R. §§ 404.1521, 404.1529.
“[A]n ALJ is permitted to issue a decision without obtaining additional medical
evidence so long as other evidence in the record provides a sufficient basis for the
ALJ’s decision.”
Anderson, 51 F.3d at 779 (quoting Naber, 22 F.3d at 189).
Although an ALJ must fully and fairly develop the record, he “is not obliged ‘to
investigate a claim not presented at the time of the application for benefits and not
offered at the hearing as a basis for disability.’” Gregg v. Barnhart, 354 F.3d 710, 713
(8th Cir. 2003) (quoting Pena v. Chater, 76 F.3d 906, 909 (8th Cir. 1996)).
“[R]eversal due to failure to develop the record is only warranted where such failure is
unfair or prejudicial.” Haley v. Massanari, 258 F.3d 742, 749-50 (8th Cir. 2001).
In evaluating Agan’s mental impairments, the ALJ acknowledged that Agan
suffered from chronic alcoholism, depression, and anxiety, although none of these were
alleged in Agan’s disability application.
AR 16, 195.
The ALJ noted that Agan
admitted to drinking twelve beers per day in March 2010. AR 16. He also noted that
Agan intentionally overdosed on Tramadol (in October 2009) and benzodiazepines (in
June 2010) but was stabilized and released home on both occasions. Id. In finding
Agan’s mental impairments were non-severe, the ALJ reasoned:
The record reflects minimal treatment for mental health conditions and the
brief hospitalizations appear to be isolated events. The claimant’s
physical conditions appeared to be the focus of treatment notes, with only
sporadic mention that the claimant received medication for depression.
There are no treatment notes that indicate a mental health specialist has
placed any type of limitations on the claimant due to mental health
conditions.
Id.
35
During the hearing, Agan stated he had been seen at Berryhill for the past five
months for treatment of his anxiety and depression.
The ALJ inquired about the
treatment he was receiving there and Agan indicated he was prescribed medication. AR
42-43. He said it helped with his anxiety and depression, but he still had symptoms.
Id. Agan argues the ALJ should have requested the treatment records from Berryhill,
and explains they were not provided by the attorney because “there is nothing in the
record demonstrating the claimant’s attorney at [the] hearing was aware the records
were missing.” Pl.’s Br. at 20.
Outside of the ALJ’s duty to fairly and fully develop the record, the claimant has
the initial burden of producing evidence. See 20 C.F.R. § 404.1512(c) (“You must
provide medical evidence showing that you have an impairment(s) and how severe it is
during the time you say that you are disabled.”). The ALJ can help the claimant obtain
medical records, but only with the claimant’s permission.
See 20 C.F.R. §
404.1512(d) (“We will make every reasonable effort to help you get medical reports
from your own medical sources when you give us permission to request the reports.”).
The Notice of Hearing sent to a claimant’s attorney before a hearing emphasizes the
importance of reviewing the file for completeness and offers various methods for the
attorney to review the file prior to the hearing. AR 108. The fact that Agan’s attorney
did not submit additional medical records does not mean the ALJ breached his duty to
fully and fairly develop the record. The ALJ is required to obtain additional evidence
“only if the medical records presented to him do not give sufficient medical evidence to
determine whether the claimant is disabled.” Johnson v. Astrue, 627 F.3d 316, 320
(8th Cir. 2010).
The record concerning Agan’s mental impairments was sufficient for the ALJ to
determine that these impairments were non-severe without asking for additional
evidence or a consultative examination. First, Agan failed to allege mental impairments
in his application for benefits. AR 195. In an appeals report, Agan listed depression as
36
a new mental limitation which began in July 2009, but stated that no changes had
occurred in his daily activities since his last disability report in May 2009. AR 229.
Second, depression was not the focus of any treatment evidenced in the medical
records. Instead, depression is mentioned only with regard to medication, and is not
the subject of any treatment notes, outside of Agan’s two suicide attempts. In July
2009, when Agan alleged depression as a new mental impairment, he saw the nurse
practitioner for diarrhea, not depression. AR 385. However, during that appointment
Agan explained he was under stress and feeling depressed because his unemployment
was about to run out and he had applied for social security disability.
Id.
She
prescribed an anti-depressant and two months later assessed his depression as stable.
AR 381.
Third, Agan’s suicide attempts did not change the way he was treated for
depression. In October 2009, Agan intentionally overdosed on his medication. AR
402.
He was released the next morning, denied any suicidal thoughts, and his
medication remained the same.
AR 402, 432.
Agan was referred to Plains Area
Mental Health, but there are no notes in the record from any visits there. AR 379. On
June 8, 2010, Agan reported to UCHC, requesting detoxification for alcohol and
Valium. AR 465. At that appointment, the doctor indicated that Agan may have been
under the effect of a benzodiazepine overdose based on the signs he was exhibiting.
He had the police escort Agan to the hospital when Agan attempted to leave against the
doctor’s advice. AR 465, 482. The doctor contacted Agan’s counselor at Compass
Pointe in Spencer who stated Agan did not stick to the program when he was enrolled.
AR 465. Agan was released from the hospital on June 23. AR 482. There are no
records from this hospitalization, but he was discharged on his usual medication,
excluding Valium, and with instructions to call the doctor if he had problems with his
nerves again. Id.
Finally, Agan’s depression and anxiety appear to be controlled primarily through
medication and are not identified as the cause of Agan’s limitations.
37
During the
administrative hearing, Agan stated he had been prescribed a new anti-depressant from
Berryhill.
symptoms.
AR 42.
Id.
He said the medication helped, although he still experienced
This is consistent with other evidence in the record that Agan’s
depression and anxiety were primarily controlled through medication. When asked why
he was not working, Agan attributed it to his chronic back pain. AR 35. Agan also
indicated during the hearing that he started suffering from anxiety and depression when
he lost his job in 2008 and did not experience anxiety and depression while he was
working.
The ALJ adequately developed the record concerning Agan’s mental
impairments. Although Agan now points out that additional evidence was available, it
was not necessary for the ALJ to obtain these records or order a consultative
examination because substantial evidence in the record already indicated that Agan’s
mental impairments caused no more than mild limitations.
Additionally, testimony
about Agan’s recent treatment did not indicate more severe limitations due to
depression and anxiety. Agan has failed to identity any prejudice resulting from the
ALJ’s failure to consider additional records. The ALJ’s conclusion that Agan’s mental
impairments were non-severe is substantially supported by the record and did not
require further development.
Recommendation
For the reasons discussed above, the court finds that the Commissioner’s
decision is supported by substantial evidence in the record as a whole and is based on
proper legal standards. Accordingly, IT IS RESPECTFULLY RECOMMENDED that
the Commissioner’s decision be affirmed and judgment be entered in favor of the
Commissioner and against Agan. Objections to the Report and Recommendation in
accordance with 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b) must be filed within
fourteen (14) days of the service of a copy of this Report and Recommendation.
38
Objections must specify the parts of the Report and Recommendation to which
objections are made, as well as the parts of the record forming the basis for the
objections.
See Fed. R. Civ. P. 72.
Failure to object to the Report and
Recommendation waives the right to de novo review by the district court of any portion
of the Report and Recommendation as well as the right to appeal from the findings of
fact contained therein. United States v. Wise, 588 F.3d 531, 537 n.5 (8th Cir. 2009).
IT IS SO ORDERED.
DATED this 15th day of October, 2012.
________________________________
LEONARD T. STRAND
UNITED STATES MAGISTRATE JUDGE
NORTHERN DISTRICT OF IOWA
39
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