Herald v. SSA

Filing 9

MEMORANDUM OPINION: A remand will be required for further consideration. See Order for details. Signed by Judge G. Wix Unthank on 2/1/2012.(TED)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at COVINGTON

CIVIL ACTION NO. 11-32-GWU

BOBBIE RAE HERALD,

VS.

PLAINTIFF,

MEMORANDUM OPINION

MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,

DEFENDANT.

INTRODUCTION
The plaintiff brought this action to obtain judicial review of an administrative
denial of her application for Disability Insurance Benefits (DIB). The appeal is
currently before the court on cross-motions for summary judgment.
APPLICABLE LAW
The Commissioner is required to follow a five-step sequential evaluation
process in assessing whether a claimant is disabled.
1.

Is the claimant currently engaged in substantial gainful activity?
If so, the claimant is not disabled and the claim is denied.

2.

If the claimant is not currently engaged in substantial gainful
activity, does he have any “severe” impairment or combination
of impairments--i.e., any impairments significantly limiting his
physical or mental ability to do basic work activities? If not, a
finding of non-disability is made and the claim is denied.

3.

The third step requires the Commissioner to determine
whether the claimant’s severe impairment(s) or combination of
impairments meets or equals in severity an impairment listed
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in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the Listing of
Impairments). If so, disability is conclusively presumed and
benefits are awarded.
4.

At the fourth step the Commissioner must determine whether
the claimant retains the residual functional capacity to perform
the physical and mental demands of his past relevant work. If
so, the claimant is not disabled and the claim is denied. If the
plaintiff carries this burden, a prima facie case of disability is
established.

5.

If the plaintiff has carried his burden of proof through the first
four steps, at the fifth step the burden shifts to the
Commissioner to show that the claimant can perform any other
substantial gainful activity which exists in the national
economy, considering his residual functional capacity, age,
education, and past work experience.

20 C.F.R. §§ 404.1520; 416.920; Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.
1984); Walters v. Commissioner of Social Security, 127 F.3d 525, 531 (6th Cir.
1997).
Review of the Commissioner's decision is limited in scope to determining
whether the findings of fact made are supported by substantial evidence. Jones v.
Secretary of Health and Human Services, 945 F.2d 1365, 1368-1369 (6th Cir.
1991). This "substantial evidence" is "such evidence as a reasonable mind shall
accept as adequate to support a conclusion;" it is based on the record as a whole
and must take into account whatever in the record fairly detracts from its weight.
Garner, 745 F.2d at 387.

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In reviewing the record, the court must work with the medical evidence before
it, despite the plaintiff's claims that he was unable to afford extensive medical workups. Gooch v. Secretary of Health and Human Services, 833 F.2d 589, 592 (6th
Cir. 1987). Further, a failure to seek treatment for a period of time may be a factor
to be considered against the plaintiff, Hale v. Secretary of Health and Human
Services, 816 F.2d 1078, 1082 (6th Cir. 1987), unless a claimant simply has no way
to afford or obtain treatment to remedy his condition, McKnight v. Sullivan, 927 F.2d
241, 242 (6th Cir. 1990).
Additional information concerning the specific steps in the test is in order.
Step four refers to the ability to return to one's past relevant category of work.
Studaway v. Secretary, 815 F.2d 1074, 1076 (6th Cir. 1987). The plaintiff is said to
make out a prima facie case by proving that he or she is unable to return to work.
Cf. Lashley v. Secretary of Health and Human Services, 708 F.2d 1048, 1053 (6th
Cir. 1983). However, both 20 C.F.R. § 416.965(a) and 20 C.F.R. § 404.1563
provide that an individual with only off-and-on work experience is considered to
have had no work experience at all. Thus, jobs held for only a brief tenure may not
form the basis of the Commissioner's decision that the plaintiff has not made out its
case. Id. at 1053.
Once the case is made, however, if the Commissioner has failed to properly
prove that there is work in the national economy which the plaintiff can perform,

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then an award of benefits may, under certain circumstances, be had. E.g., Faucher
v. Secretary of Health and Human Services, 17 F.3d 171 (6th Cir. 1994). One of the
ways for the Commissioner to perform this task is through the use of the medical
vocational guidelines which appear at 20 C.F.R. Part 404, Subpart P, Appendix 2
and analyze factors such as residual functional capacity, age, education and work
experience.
One of the residual functional capacity levels used in the guidelines, called
"light" level work, involves lifting no more than twenty pounds at a time with frequent
lifting or carrying of objects weighing up to ten pounds; a job is listed in this category
if it encompasses a great deal of walking or standing, or when it involves sitting
most of the time with some pushing and pulling of arm or leg controls; by definition,
a person capable of this level of activity must have the ability to do substantially all
these activities. 20 C.F.R. § 404.1567(b). "Sedentary work" is defined as having
the capacity to lift no more than ten pounds at a time and occasionally lift or carry
small articles and an occasional amount of walking and standing. 20 C.F.R. §
404.1567(a), 416.967(a).
However, when a claimant suffers from an impairment "that significantly
diminishes his capacity to work, but does not manifest itself as a limitation on
strength, for example, where a claimant suffers from a mental illness . . .
manipulative restrictions . . . or heightened sensitivity to environmental

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contaminants . . . rote application of the grid [guidelines] is inappropriate . . . ."
Abbott v. Sullivan, 905 F.2d 918, 926 (6th Cir. 1990).

If this non-exertional

impairment is significant, the Commissioner may still use the rules as a framework
for decision-making, 20 C.F.R. Part 404, Subpart P, Appendix 2, Rule 200.00(e);
however, merely using the term "framework" in the text of the decision is insufficient,
if a fair reading of the record reveals that the agency relied entirely on the grid. Id.
In such cases, the agency may be required to consult a vocational specialist.
Damron v. Secretary, 778 F.2d 279, 282 (6th Cir. 1985). Even then, substantial
evidence to support the Commissioner's decision may be produced through reliance
on this expert testimony only if the hypothetical question given to the expert
accurately portrays the plaintiff's physical and mental impairments. Varley v.
Secretary of Health and Human Services, 820 F.2d 777 (6th Cir. 1987).
DISCUSSION
The plaintiff, Bobbie Rae Herald, was found by an Administrative Law Judge
(ALJ) to have a “severe” impairment consisting of degenerative disc disease of the
lumbar spine with chronic back pain. (Tr. 13). Nevertheless, based in part on the
testimony of a Vocational Expert (VE), the ALJ determined that Mrs. Herald retained
the residual functional capacity to perform a significant number of jobs existing in
the economy, and therefore was not entitled to benefits. (Tr. 15-21). The Appeals
Council declined to review, and this action followed.
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At the administrative hearing, the ALJ asked the VE whether a person of the
plaintiff’s age, education, and work experience could perform any jobs if she were
limited to “light” level exertion, with the option of sitting or standing after 30 to 45
minutes, and also had the following non-exertional restrictions. She: (1) could never
crawl or climb ladders, ropes, or scaffolds; (2) could occasionally stoop, kneel,
crouch and climb ramps and stairs; (3) could no more than “frequently” push, pull
or use foot controls with the left lower extremity; and (4) needed to avoid
concentrated exposure to full body vibration. (Tr. 68-9). The VE responded that
there were jobs that such a person could perform, and proceeded to give the
numbers in which they existed in the state and national economies. (Tr. 69).
On appeal, this court must determine whether the administrative decision is
supported by substantial evidence, or if there is an error of law.
The plaintiff alleged disability due to “slipped” and ruptured discs in her back,
nerve damage, depression, and attention deficit hyperactivity disorder. (Tr. 157).
The ALJ found only her back condition to be a “severe” impairment.
The plaintiff raises three issues on appeal. First, she argues that the opinion
of her treating neurologist, Dr. John Kelly, was entitled to controlling weight.
Second, she asserts that she was “severely” impaired by depression, and the ALJ
should have ordered a consultative psychological examination.

Third, she

challenges the ALJ’s finding that she was non-compliant with treatment. This

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argument is bound up with the ALJ’s reasoning in discounting the treating source,
so the first and third arguments may be considered as one.
Medical records in the transcript show that after suffering from low back pain
for several months, the plaintiff had an MRI of the lumbosacral spine showing
herniations at L4-L5 and L5-S1.

Dr. Steven C. Bailey performed a lumbar

laminectomy and diskectomy at these levels on February 21, 2006. (Tr. 297-301,
27-50). Her symptoms returned, however, with an EMG showing left radiculopathy
and an MRI showing a recurrent disc herniation at L4-L5. (Tr. 266). In addition, the
second MRI, dated June 27, 2006, was interpreted as showing a “protrusion or
herniation” at L3-L4 causing mild left foraminal stenosis and a laminectomy defect
at L5-S1 with granulation tissue around the nerve root at S1. (Tr. 262). Another
surgeon, Dr. Michael Rohmiller, performed a revision diskectomy at L4-L5 on
September 8, 2006. (Tr. 224-5). At discharge, the plaintiff’s lower extremity pain
was significantly diminished. (Tr. 304). At a followup visit in January, 2007, Mrs.
Herald reported that she felt much better and she was quite pleased with the
operation, although she had developed some paraspinal muscle spasm as a result
of taking care of three ill family members. (Tr. 319).
At this point, on March 19, 2007, a state agency physician, Dr. David Swan,
reviewed the evidence and concluded that the plaintiff could perform “light” level
exertion, could never climb ladders, ropes, and scaffolds, occasionally stoop, kneel,

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crouch, and crawl; and needed to avoid concentrated exposure to vibration. (Tr.
348-54). He appeared to base his opinion, to a considerable extent, on her
condition at the time of Dr. Rohmiller’s January 8, 2007 examination. (Tr. 349, 352).
There was no treating source opinion regarding physical capacities at the time. (Tr.
353).
Subsequently, however, on May 18, 2007, Mrs. Herald reported to Dr.
Rohmiller that she had experienced a recurrence of her symptoms. His examination
showed a diminished sensation to light touch in the L2, L4, L5 and S1 dermatomes,
seemingly positive straight leg raising on the left, and some weakness also. (Tr.
390). X-rays showed significant loss of height at L4-L5 and L5-S1. Dr. Rohmiller
noted that if she was not able to improve by non-operative means, “she would be
looking at a spinal fusion.” (Id.). He requested that she have a new MRI scan and
come back with the results. (Id.). This was Mrs. Herald’s last recorded visit to the
surgeon.
Mrs. Herald had been receiving pain management services from Dr. John
Kelly and other sources at Neuroscience Associates of Northern Kentucky since
August 1, 2006. (Tr. 415). On March 23, 2008, Dr. Kelly wrote a letter summarizing
his patient’s treatment, adding that she had elected not to have a fusion because
“this surgery tends to have a poor outcome.” (Tr. 377). He diagnosed lumbar postlaminectomy syndrome, also known as failed back syndrome, and provided

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restrictions of lifting no more than five pounds infrequently, no pushing or pulling of
more than ten pounds infrequently, no bending, stooping, crawling, or climbing of
stairs, stepstools, or ladders, sitting three to four hours per day (no more than 30
minutes at a time), standing one hour per day (no more than 10 minutes at a time),
and he prohibited operation of a motor vehicle or moving machinery within four
hours of taking pain medication. He felt her pain would frequently interfere with her
concentration and she would miss work more than four times per month. (Tr. 37879). Dr. Kelly reiterated even more extensive restrictions in a report dated March
18, 2009. (Tr. 585-89). When asked about these assessments, the VE testified
that there were no jobs Mrs. Herald could perform. (Tr. 71-2).
The opinion of a treating source such as Dr. Kelly is entitled to controlling
weight if it is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with other substantial evidence in the
record. 20 C.F.R. § 404.1527(d)(2). If the treating source opinion is not given
controlling weight, the ALJ “must apply certain factors--namely, the length of the
treatment relationship and the frequency of examination, the nature and extent of
the treatment relationship, supportability of the opinion, consistency of the opinion
with the record as a whole, and the specialization of the treating source--in
determining what weight to give the opinion.” Wilson v. Commissioner of Social
Security, 378 F.3d 541, 546 (6th Cir. 2004). There “remains a presumption, albeit

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a rebuttable one, that the opinion of a treating physician is entitled to great
deference.” Rogers v. Commissioner of Social Security, 486 F.3d 234, 242 (6th Cir.
2007). The ALJ must always give “good reasons” for the weight given the treating
physician opinion. Wilson, 378 F.3d at 433, citing § 404.1527(d)(2).
In the present case, the ALJ partially discounted Dr. Kelly’s opinions based
on language in § 404.1527(e), that opinions that a claimant is “disabled” or “unable
to work” are not medical opinions because they are administrative findings which
are dispositive of a case. (Tr. 18). As the plaintiff points, out, Dr. Kelly provided
specific functional restrictions, not a conclusory statement that the plaintiff was
disabled, rendering § 404.1527(e) inapplicable. However, the ALJ went on to cite
two more reasons for discounting Dr. Kelly’s opinion: (1) that he had based his
knowledge of the plaintiff’s condition on the June 27, 2006 MRI, and her condition
had clearly changed following her second back surgery on September 8, 2006; and
(2) Dr. Kelly incorrectly believed that the plaintiff had been compliant with treatment.
On the first point, while Dr. Kelly did cite the June 27, 2006 MRI in support
of his findings, he additionally cited medication side effects which would prevent the
plaintiff from concentrating, driving or operating machinery.

(Tr. 378, 588).

Medication side effects (the plaintiff was taking Percocet among other drugs) are a
factor to be considered under § 404.1529(c)(3). Dr. Kelly did not support his opinion
merely by reference to the MRI; he additionally provided a narrative statement

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indicating that the plaintiff’s low back surgery had failed, resulting in elevated low
back and leg pain and numbness and weakness of the lower extremities. (Tr. 587).
His physical examination of November 7, 2008 also produced some objectively
abnormal findings, such as diminished sensation in the left foot and right thigh, a
“mildly” antalgic gait, sacroiliac joint dysfunction resulting in protrusion of the left hip,
moderate tenderness with detectable muscle spasm, a somewhat reduced lumbar
range of motion, and mildly positive straight leg raising on the left, albeit “greatly
improved.” (Tr. 527). Because of these factors, it was erroneous to imply that Dr.
Kelly was basing his opinion only on the June 26, 2006 MRI.
Regarding Dr. Kelly’s belief that the plaintiff had been compliant with
treatment, the ALJ countered with three items. First, he asserted that the physician
had advised the plaintiff to contact patient assistance to obtain the medication
Neurontin, but that she failed to follow through. (Tr. 18). A note from a nursepractitioner in Dr. Kelly’s office from March 19, 2009 does state that Mrs. Herald
failed to contact patient assistance. (Tr. 520). However, at the April 9, 2009
administrative hearing, the plaintiff testified that she was taking Neurontin six times
a day (Tr. 378), so the situation had presumably been resolved. It is also worth
noting that the plaintiff been taking Neurontin on prescription from Dr. Kelly or other
physicians since her initial visit on August 1, 2006 (Tr. 394-418, 520-40), so she
was clearly compliant with taking the medication for the bulk of the time she was

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under treatment by Dr. Kelly. Second, the ALJ criticized the plaintiff for not having
a third back surgery (fusion) and stated that it was unclear whether she had
“explored it at all.” (Tr. 18). The plaintiff testified that her sister had had a fusion
and she thought it made her worse. (Tr. 55). She also stated that Dr. Rohmiller’s
request that she have a new MRI before proceeding with the fusion was impossible
to fulfill because she did not have the money to pay for it. (Tr. 56). Dr. Rohmiller’s
last available note does indicate that he wanted to see the MRI scan before
proceeding with surgery. (Tr. 390). In addition, there is the previously-cited
statement by Dr. Kelly that such surgery tends to have a poor outcome. (Tr. 377).
Third, the ALJ cited physical therapy notes from November, 2006 showing that Mrs.
Herald had canceled two physical therapy appointments and failed to keep two
appointments in less than a month. (Tr. 18, 313-16). While from Dr. Rohmiller’s
notes it appears that the plaintiff may have been trying to care for a sister who was
in a coma during this period (Tr. 319-20), there is no direct explanation for her lack
of cooperation. Taken as a whole, however, the court cannot agree that the ALJ
provided “good reasons” for declining to accept the treating source opinion. Nor did
the ALJ proceed to weigh the treating source opinion as described in 20 C.F.R. §
404.1527(d)(2). Instead, he largely accepted the opinions of the non-examining
reviewers, Drs. Swan and Gregg. (Tr. 18). As previously described, these sources
did not have access to all of the evidence, a factor of great importance in

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determining whether the non-examining sources can be given more weight than
treating specialists. Rogers, 486 F.3d at 245 n. 4; Social Security Ruling 96-6p.1
Accordingly, a remand will be required for further consideration.
This the 1st day of February, 2012.

The Commissioner argues in his brief that Dr. Kelly could also be discounted
because he erroneously believed that Mrs. Herald had never returned to work following
her second surgery, although she briefly did. (Tr. 391, 526). Even if this would have
been a good reason for discounting Dr. Kelly’s opinion, the ALJ did not make it. The ALJ
is charged with “comprehensively set[ting] forth the reasons for the weight assigned to a
treating physician’s opinion.” Wilson, 378 F.3d at 545 (citation omitted).
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