Ross v. Commissioner of Social Security

Filing 18

RULING AND ORDER - This case, therefore is reversed and remanded for an award of benefits. See text of Order. Signed by Senior Judge Donald E O'Brien on 12/7/12. (djs)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
CHARLES H. ROSS,
Plaintiff,

No. 11-CV-4105-DEO

v.
RULING AND ORDER

MICHAEL J. ASTRUE,
Commissioner of Social
Security,
Defendant.

____________________
I.

INTRODUCTION AND BACKGROUND
This matter is before the Court pursuant to Charles H.

Ross’ (hereinafter Mr. Ross) Complaint, requesting disability
benefits under Title II of the Social Security Act (the
“Act”), 42 U.S.C. §§ 401 et seq.

This Court has authority to

review the final decision of the Commissioner of Social
Security (Commissioner) pursuant to 42 U.S.C. § 405(g).

The

parties appeared by phone for hearing on October 11, 2012.
After hearing the parties’ arguments, the Court took the
matter under advisement and now enters the following.
II.

FACTUAL BACKGROUND
Mr. Ross claims disability arising out of a number of

different, undisputed, medical conditions.
hearing, Mr. Ross was 49 years old.
1

At the time of

He lives with his

girlfriend in Milford, Iowa. Over the course of his life, Mr.
Ross has had a number of manual labor type jobs, most recently
running a gutter installation business.

At the time of

hearing, Mr. Ross was 6'3" and weighed approximately 330
pounds.

He has a tenth grade education.

Mr. Ross meets the insured status requirements and filed
for disability on October 5, 2009, claiming an initial onset
date of July 28, 2009, shortly after a heart attack.

In a

letter dated October 29, 2009, Dr. Brett Olson, Mr. Ross’
primary care provider at the time, outlined Mr. Ross’ various
medical

issues

including:

diabetes,

neuropathy,

joint

problems, sleep apnea, coronary artery disease, mood swings,
sleepiness, headaches, obesity and COPD.
297.

Docket #7, p. 296-

Dr. Olson opined that it would be difficult for Mr. Ross

to continue working as he had prior to his heart attack and
stated that:
in regards to his lifting and carrying,
that is limited due to his obesity, COPD1
and his cardiac condition. He is really
more of a sedentary type guy and he
wouldn’t be able to do any repetitious
factory type work, certainly no climbing up
ladders, kneeling, stooping. He could do
some standing and walking but he would be
limited because he is so heavy and he has
1

COPD is a common lung disease often referred to as
chronic bronchitis.
2

arthralgias and myalgias that he certainly
wouldn’t be able to do that on an eight
hour basis.
Id.
Mr. Ross is currently treated by a nurse practitioner in
Milford, Iowa, Jamie Hicks.2

According to Hicks,

In the time that I have known him, Charles
has been unemployed ... I would agree that
his functional capacity has diminished
significantly, to making him only qualified
for sedentary work. Unfortunately, as his
daytime somnolence is quite significant he
falls asleep very easily during office
appointment visits during an interview he
will be somewhat mentally foggy and fall
asleep without much waning ... I do feel
that Charles is an excellent candidate for
Disability as he is quite high risk for
further complications from his health
problems including his coronary artery

2

“Nurse practitioners are registered nurses who pursue
additional, more comprehensive education and clinical
training...Nearly all currently practicing nurse practitioners
have master's degrees, and many have earned doctorates... A
nurse practitioner typically has authority to provide the
following services:
obtain medical histories and perform
physical examinations; diagnose and treat health problems;
order and interpret laboratory tests and x-rays; prescribe
medications
and
other
treatments...Nurse
practitioners
practice in a variety of settings, ranging from primary care
practice offices to hospitals to long-term care to specialty
practices, and also non-traditional models of care such as
nurse-managed health centers and convenient care clinics.”
Tine Hansen-Turton & Jamie Ware, Frank McClellan, Nurse
Practitioners in Primary Care, 82 Temp. L. Rev. 1235, 1243-44
(2010).
3

disease, hyperlipidemia,3 obesity, sleep
apnea, and subsequent inability to perform
routine musculoskeletal tasks. I do feel
that mentally he has some issues ...
although he is not any formal diagnosis ...
his daytime somnolence makes it excessively
hard for him to complete and follow
directions and tasks.
Docket #7, p. 370.
III. PROCEDURAL HISTORY
Mr. Ross’ claim was initially denied on January 5, 2010.
Mr. Ross filed an application for reconsideration which was
denied on March 30, 2010.
hearing on May 25. 2010.

Mr. Ross filed a request for
Hearing was held on May 9, 2011,

before Administrative Law Judge Theodore P. Kennedy.
On June 14, 2011, the ALJ denied benefits.
outlined the applicable standards, stating that:
At step one, the undersigned must determine
whether the claimant is engaging in
substantial gainful activity. ... At step
two the undersigned must determine whether
the claimant has a medically determinable
impairment
that
is
“severe”
or
a
combination
of
impairments
that
is
“severe.”
...
At
step
three,
the
undersigned must determine whether the
claimant’s impairments or combination of
impairments meets or medically equals the
criteria of an impairment ... If the
claimants’ impairment or combination of
impairments meets or medically equals the

3

Commonly known as high cholesterol.
4

The ALJ

criteria of a listing and meets the
duration requirement, the claimant is
disabled.
If it does not, the analysis
proceeds to the next step ... Next the
undersigned must determine ... whether the
claimant has the residual functional
capacity to perform the requirements of his
past relevant work. At the last step ...
the undersigned must determine whether the
claimant is able to do any other work
considering
his
residual
functional
capacity,
age,
education,
and
work
experience. If the claimant is able to do
other work, he is not disabled.
Docket #7, p. 8-10.
The ALJ determined that Mr. Ross has not engaged in
substantial gainful activity since October 5, 2009, and that
he

has

several

severe

impairments,

including:

obesity,

arthritis, diabetes mellitus with neuropathy, coronary artery
disease,

obstructive

sleep

adjustment disorder.

Id.

impairments

rise

did

not

apnea,

pulmonary

disease

and

However, the ALJ found that those
to

the

level

of

a

disability.

Specifically, the AlJ found that:
Although the claimant has impairments which
are considered to be “severe,” they are not
attended, singly or in combination, with
the specific clinical signs and diagnostic
findings required to meet or equal the
requirements ... The claimant’s mental
impairment does not meet or medically equal
the criteria ... [T]o satisfy the ...
criteria, the mental impairment must result
in a least two of the following: marked
restriction of activities of daily living;
5

marked difficulties in maintaining social
functioning;
marked
difficulties
in
maintaining concentration, penitence, or
pace; or repeated episodes of compensation,
each of extended duration.... Because the
claimant’s mental impairment does not cause
at least two “marked” limitations or one
“marked” limitation and “repeated” episodes
of
decompensation,
each
of
extended
duration,
the
...
criteria
are
not
satisfied. After careful consideration of
the entire record, the undersigned finds
that
the
claimant
has
the
residual
functional capacity to perform less than a
full range of light work.... In sum, the
above
residual
functional
capacity
assessment is supported by the claimant’s
testimony, the objective medical evidence,
his lack of treatment, lack of medications,
poor work history, daily activities, DDS
opinions, and the record as a whole.
Id., at 12-13, 18.
In making his determination, the ALJ did not dispute that
Mr. Ross’ illness could lead to the various symptoms he
describes.
credible,

However, the ALJ did not find Mr. Ross’ testimony
stating

that,

“the

undersigned

finds

that

the

claimant’s medically determinable impairments could reasonable
be expected to cause the alleged symptoms; however, the
claimant’s statements concerning the intensity, persistence,
and limiting effects of the symptoms are not credible to the
extent

they

are

inconsistent

functional capacity assessment.”

6

with

the

above

Docket #7, p. 14.

residual
The ALJ

cited

what

he

noncompliance.”

described
Id.

as

“significant

history

of

The ALJ also took issue with a report

written by Mr. Ross’ nurse practitioner, Jamie Hicks.
wrote that she believed Mr. Ross to be disabled.

Hicks

But the ALJ

found that:
a registered nurse is not an acceptable
medical source whose opinion can be given
controlling weight, and Ms. Hicks’ opinions
are not entitled to significant weight when
considered in the light of the record as a
whole. While Ms. Hicks has stated that the
claimant was disabled, it is not clear that
she was familiar with the definition f
“disability” contained in the Social
Security
Act
and
regulations.
Specifically, it is possible that she was
referring to the statutes in the state of
Iowa or the claimant’s inability to perform
his past work, which is consistent with the
conclusions reached in this decision.
Docket #7, p. 17.

The ALJ went on to say that he considered

the opinions of Mr. Ross’ primary care physician, Dr. Olson;
psychologist, Don Johnson; and Dr. Dennis Weis in coming to
his decision to deny Social Security benefits.

Id.

Finally,

the ALJ opined that there were a number of jobs that Mr. Ross
could continue to perform.
Mr.

Ross

appealed

the

ALJ’s

decision.

The

Appeals

Council denied Mr. Ross’ claim on September 30, 2011.
Ross then filed the present action.

7

Mr.

IV.

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); Finch 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

reverse the ALJ, even if it would have reached a contrary
decision, as long as substantial evidence supports the ALJ’s
decision.
Cir. 2004).
is

outside

Eichelberger v. Barnhart, 390 F.3d 584, 589 (8th
The ALJ’s decision shall be reversed only if it
the

reasonable

“zone

of

choice.”

Hacker

v.

Barnhart, 459 F.3d 934, 936 (8th Cir. 2006) (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

8

error.

Lauer v. Apfel, 245 F.3d 700, 702 (8th Cir. 2001).

If

the ALJ applies an improper legal standard, it is within this
Court's discretion to reverse his/her decision.

Neal v.

Barnhart, 405 F.3d 685, 688 (8th Cir. 2005); 42 U.S.C. §
405(g).
V.

ISSUES
Mr. Ross argues that a preponderance of the medical

evidence in this record compels a finding that Mr. Ross is
disabled and entitled to receive benefits, and the record does
not contain substantial evidence on the record as a whole to
support the decision of the Administrative Law Judge.
VI. 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 [hereinafter the 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 . . . .
42 U.S.C. § 423(d)(1)(A).

Mr. Ross argues that the ALJ was

incorrect when he determined that Mr. Ross was not disabled.

9

Specifically, Mr. Ross argues that the ALJ decision was not
supported by substantial evidence, and in fact, the Court
should determine substantial evidence supports a determination
that

Mr.

Ross

is

disabled

as

defined

in

42

U.S.C.

§

423(d)(1)(A).
A.

Mr. Ross’ Credibility

At the outset, the Court notes that the ALJ dismissed Mr.
Ross’

testimony

about

credibility grounds.

the

severity

of

Docket #7, p. 14.

his

condition

on

As discussed above,

this Court cannot disturb the ALJ’s findings unless those
findings are not supported by substantial evidence.

Baker v.

Barnhart, 457 F.3d 882, 893 (8th Cir. 2006).

At the hearing,

Mr.

this

Ross

argued

that

the

ALJ

came

to

erroneous

determination because Mr. Ross had failed to seek medical
treatment,
constant

and

the

medical

disability.

ALJ

found

treatment

was

Mr.

Ross’

evidence

failure

to

of

lack

his

seek
of

There is no doubt that the ALJ faulted Mr. Ross

for failing to secure constant medical treatment.

It is also

clear that the ALJ relied on the residual functional capacity
assessment in determining that Mr. Ross was not a credible
witness.

Docket #7, p. 14.

10

However, the substantial weight of the entire record in
this case lends credence to Mr. Ross’ testimony.
admitted

that

certain

testimony,

including

The ALJ

testimony

he

specifically found credible, indicated that Mr. Ross has a
hard time functioning on a day to day basis.

See Docket #7,

p. 17, where the ALJ states that, “[Mr. Ross’ sister] reported
that the claimant has some problems getting along with others,
needs reminders to take care of his personal needs, and
requires help to finish his chores.”

As will be discussed

further below, the medical opinions reflected in the record
also support Mr. Ross’ contention that he has a hard time
functioning

and

could

not

function

in

the

work

force.

Accordingly, the ALJ’s determination that Mr. Ross’ testimony
was not credible is not supported by substantial evidence.
Mr. Ross’ testimony should be given the weight it deserves.
B.

Medical Authority

In arguing that he is disabled, Mr. Ross points to the
letters written by his two primary care providers, Dr. Olson
and Nurse Hicks.

(Quoted extensively above).

The Defendant

counters that, "[c]ontrary to plaintiff's assertions, the ALJ
properly considered all the medical assessments and opinions

11

when finding plaintiff's RFC, and the ALJ's findings are
supported by substantial evidence."

Docket #12, p. 13-14.

The ALJ applied the appropriate multi-step methodology
and found that Mr. Ross has some severe impairments.
C.F.R. §§ 404.1520, 416.920.
fact.

See 20

Neither party disputes that

Indeed, the parties agree that Mr. Ross suffers from a

number of severe medical issues, including:

diabetes, COPD,

and coronary artery disease. However, the ALJ determined that
those impairments do not rise to the level of a disability
pursuant to 20 C.F.R. Part 404, Subpart P, Appendix 1.
ALJ

also

considered

Mr.

Ross'

residual

capacity,

The
age,

education and work experience and determined that there were
jobs that Mr. Ross could continue to do.
The Court agrees with Mr. Ross that the ALJ failed to
give adequate credit to the opinions of Mr. Ross’ primary
providers. “The medical opinions of ‘treating sources’ on the
nature and severity of a claimant's impairments are given more
weight

than

non-treating

sources

and

are

even

given

controlling weight if certain conditions are met.” Lacroix v.
Barnhart,

465

F.3d

citations omitted).
care provider.

881,

885

(8th

Cir.

2006)

(internal

Dr. Olson was Mr. Ross’ first primary

As discussed above, Dr. Olson opined that:

12

[Mr. Ross] is really more of a sedentary
type guy and he wouldn’t be able to do any
repetitious factory type work, certainly no
climbing up ladders, kneeling, stooping.
He could do some standing and walking but
he would be limited because he is so heavy
and he has arthralgias and myalgias that he
certainly wouldn’t be able to do that on an
eight hour basis.
The mere fact that a plaintiff can stand and walk is not
determinative of the question of whether they are disabled.
Other than the admission that Mr. Ross can stand and walk, Dr.
Olson’s opinion clearly suggests that Mr. Ross is severely
impaired.

He specifically states that Mr. Ross would not be

able to maintain an eight hour a day job.

The state argues

that because Dr. Olson ‘lost track’ of Mr. Ross for a short
period of time, his opinion should be discounted.
disagrees.
that

Dr.

The Court

It is clear both from his records and his letter
Olson

had

condition and outlook.

substantial

knowledge

of

Mr.

Ross’

Accordingly, it was an error for the

ALJ to discount Dr. Olson’s opinion as a treating medical
source.
It also seems clear that the ALJ failed to give adequate
consideration to the opinion of Ms. Hicks.
points

out

in

its

brief,

nurse

considered treating sources.

13

As the Defendant

practitioners

are

not

Lacroix, 465 F.3d at 886.

However, even if a nurse practitioner is not a treating
source, under Section 423 of the Social Security Act, the ALJ
is required to consider all of the evidence available in a
claimant's
sources.

case

record,

including

evidence

from

medical

42 U.S.C. § 423(d)(5)(B); see also 20 C.F.R. §

404.1527(d).

The State argues that “[i]n this case, the ALJ

properly considered Ms. Hicks’s assessment in light of the
full record evidence, which showed plaintiff had a less severe
condition than Ms. Hicks outlined.”
However, that argument is incorrect.

Docket #12, p. 18.
Ms. Hick’s testimony is

substantially similar to the opinion of Dr. Olson, Mr. Ross’
treating physician.

It is also supported by Mr. Ross’ own

testimony. It seems clear that substantial evidence supported
her opinions and the ALJ’s failure to give them adequate
credit was an error.
Ms.

Hicks

specifically

states

that

Mr.

Ross

has

a

significantly diminished functional capacity. She states that
he may be able to qualify for some sedimentary type work, but
qualifies that by saying that he can barely stay awake during
the day and he has extreme difficulty understanding and
following instructions. Docket #7, p. 370. The fact that Mr.
Ross has problems with cognition and daily functioning is

14

supported

by

opinion

of

Dawn

Howley,

another

nurse

practitioner who performed a psychiatric evaluation of Mr.
Ross.

Docket 12, p. 10.

Ms. Howley stated that, “I would say

that [Mr. Ross] has chronic mood problems related to his
disability and inability to be employed...I would also add
that theoretically, his untreated obstructive sleep apnea
could result in chronic deprivation of oxygen to the brain
causing memory difficulties, overall problem with cognition,
thought organization, and attention.”

Docket #7, p. 394.

Again, Ms. Howley cannot be considered a treating source.
However, her opinion is credible and supported by the record
as a whole, including the testimony of Mr. Ross, his sister,
and Ms. Hicks. Consequently, it should be given the weight it
deserves.
The treating opinion of Dr. Olson, when considered with
the testimony of Mr. Ross, Mr. Ross’ sister and the opinions
of Ms. Hicks and Ms. Howley, clearly indicate that Mr. Ross
has numerous impairments that combined rise to the level of a
disability.

Mr. Ross’ physical ailments preclude him from

doing the factory/manual labor to which he is accustomed. The
impact of those ailments also inhibit Mr. Ross’ ability to do
other, sedentary type jobs.

This determination is supported

15

by substantial evidence.

Accordingly, the ALJ erred in

finding otherwise.
Finally, the Court notes that that both the Defendant and
the ALJ discuss the fact that some of Mr. Ross’ providers
suggest his illnesses could be better treated if he spent more
money on medicine, and less on cigarettes. The Court fails to
see what relevance this repeated point has.

There is nothing

in the record that suggests a lone course of treatment could
‘cure’ Mr. Ross’ various ailments.

He finds himself on the

precipice of disability not because of a single, easily cured,
illness

but

problems.

because

of

a

combination

of

severe

medical

The Defendant and the ALJ seem to suggest that the

fact Mr. Ross is in a deteriorating state is evidence that he
is not as impaired as he claims.

This Court disagrees.

Substantial evidence in the record supports a conclusion that
he is in such poor condition, and takes such poor care of
himself, not to further his disability, but because of it.
VII.

CONCLUSION
The question becomes whether this Court should remand for

further consideration or solely for the purpose of awarding
benefits.

The Court has the authority to reverse a decision

of the Commissioner, "with or without remanding the cause for

16

rehearing," but the Eighth Circuit has held that a remand for
award of benefits is appropriate only where "the record
‘overwhelmingly supports'" a finding of disability. 42 U.S.C.
405(g); Buckner v. Apfel, 213 F.3d 1006, 1011 (8th Cir. 2000).
In this case, the Court is persuaded that a remand to take
further evidence or to correct the ALJ’s errors would only
result in an unnecessary delay in Mr. Ross’ receipt of the
benefits to which he is entitled. Mr. Ross has several severe
conditions,

including

diabetes,

sleep

apnea,

pulmonary

disease, and COPD that in combination with the other factors
discussed above have left him disabled.

This case, therefore

is reversed and remanded for an award of benefits.4
Application for attorney fees pursuant to the Equal
Access to Justice Act, 28 U.S.C. § 2412 (EAJA), must be filed
within thirty (30) days of the entry of final judgment in this
action.

Thus, unless this decision is appealed, if Ross’

attorney wishes to apply for EAJA fees, it must be done within
thirty (30) days of the entry of the final judgment in this
case.

4

Although plaintiff alleged disability beginning in July 2009,
SSI benefits may be paid, at the earliest the month following
the month the application was filed.
See 20 C.F.R. §§
416.330, 416.335.
17

IT IS SO ORDERED this 7th day of December, 2012.

__________________________________
Donald E. O’Brien, Senior Judge
United States District Court
Northern District of Iowa

18