Blumenberg v. Commissioner of Social Security

Filing 37

AMENDED JUDGMENT in favor of Patricia Blumenberg against Commissioner of Social Security. THE CASE IS REVERSED AND REMANDED. Signed by Magistrate Judge Jane M. Virden on 2/22/18. (ncb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF MISSISSIPPI
GREENVILLE DIVISION
PATRICIA BLUMENBERG
V.

PLAINTIFF
NO. 4:17CV00001-JMV

COMMISSIONER OF SOCIAL SECURITY

DEFENDANT

AMENDED FINAL JUDGMENT
This cause is before the court on Plaintiff’s complaint for judicial review of an
unfavorable final decision of the Commissioner of the Social Security Administration denying
a claim for a period of disability, disability insurance benefits, and supplemental security
income. The parties have consented to entry of final judgment by the United States Magistrate
Judge under the provisions of 28 U.S.C. § 636(c), with any appeal to the Court of Appeals for
the Fifth Circuit. The court, having reviewed the administrative record, the briefs of the
parties, and the applicable law, and having heard oral argument, finds as follows:
Consistent with the court’s ruling from the bench during a hearing held February 20,
2018, the court finds the ALJ’s residual functional capacity (“RFC”) determination is not
supported by substantial evidence in the record. First, the court found that July 2015 progress
notes generated by the claimant’s treater, Dr. Timothy Beacham, and which were submitted to
the Appeals Council indeed relate to the period under consideration by the ALJ–despite the
Appeals Council’s finding to the contrary. Said records include Dr. Beacham’s opinion that the
claimant had reached maximum medical improvement and that fibromyalgia and other
conditions would make it likely that she would be “unable to work in a traditional setting given
frequent standing and rest periods, unsteady balance, and severe generalized pain.” This
opinion is supported by findings in Dr. Beacham’s treatment notes which indicate consistent

complaints of severe pain and inefficacy of multiple medication regimens (including heavy
narcotics) and other treatment. Because this opinion was not adequately considered, the case
will be remanded.
Second, the court found the ALJ failed to consider what effect the side effects of the
claimant’s medications had on her ability to perform work activity during the relevant period.
Indeed, Dr. Beacham’s treatment notes indicate that as early as June 2014 the claimant’s
narcotic medications caused sleepiness and drowsiness. This error is not harmless in view of
vocational expert (“VE”) testimony that established that the claimant’s being off-task–due to
pain–up to twenty-five percent of the day (along with the other limitations the ALJ found)
would leave no jobs in the national economy the claimant could perform.1
Finally, the ALJ failed to properly consider opinion evidence and fully and fairly
develop the record with regard to the claimant’s mental impairments. In his report of his
consultative examination of the claimant, along with noting objective findings of inability to
concentrate, Dr. Michael Whelan opined that the claimant “would have difficulty sustaining her
attention and concentration in a work setting due to the effects of chronic pain.”2 The ALJ
failed to definitively state the amount of weight, if any, she attributed to this opinion. On the
other hand, the ALJ accorded “great weight” to a non-examining state agency physician’s
opinion that the claimant could “maintain attention and concentration adequately.” In view of

1

Dr. Beacham’s July 2015 note suggests the claimant would require rest periods. On remand the ALJ
will be required to seek specific information regarding the number and or/frequency of rest breaks the claimant
needed.
2

Dr. Whelan opined that the primary cause of the claimant’s depressed mood was her chronic pain.
Pursuant to an explanation in SSR 12-2p of how fibromyalgia is considered by the Agency at steps 4 and 5 of
the sequential evaluation process, it is acknowledged that “[p]eople with FM may also have nonexertional
physical or mental limitations because of their pain or other symptoms.”

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the multiplicity of evidence, including consistent subjective complaints of pain, objective
evidence supporting the presence of pain, and complaints of side effects of pain medication, it
was incumbent on the ALJ to determine and explain the amount of weight she attributed to Dr.
Whelan’s opinion and give reasons for rejecting it in any regard. Furthermore, the record of
the administrative hearing indicates the ALJ was informed that additional mental health records
of the claimant’s treatment by a Dr. Jenkins existed;3 and, the ALJ stated she would obtain said
records. However, this was, apparently, not done, and the ALJ provided no explanation why
the records were not obtained. Accordingly, the ALJ failed to execute her duty to develop the
record with regard to the pro se claimant’s mental condition.
On remand:
1. The ALJ must contact Dr. Beacham and obtain a medical source statement which
includes an assessment of the claimant’s ability to perform work activity, function-by-function,
for the relevant period. The ALJ must also request an opinion regarding the claimant’s need
for rest breaks and/or to change positions during the course of a workday, along with an
assessment of the amount of time the claimant would be off-task during the course of a
workday due to pain and side effects of medication. Dr. Beachman must also provide an
assessment of how many days, if any, during the course of a month the claimant would miss
work due to her medical condition.
2. The ALJ must also recontact Dr. Whelan and request a comprehensive assessment of
the claimant’s ability to perform mental work activity, based upon his prior examination of the

3

Dr. Beacham’s October 30, 2014 treatment notes include a referral to Dr. Chester Jenkins, Psychiatry,
for evaluation and treatment of depression with anxiety.

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claimant. Said assessment must include, but not be limited to, an opinion regarding the length
of time the claimant would be able to maintain attention and concentration.
3. The ALJ must either obtain medical records from Dr. Jenkins or provide a valid
explanation as to why said medical records could not be obtained.
4. The ALJ must consider the foregoing additional evidence along with all of the
medical evidence in the file including, but not limited to, evidence of side effects of medication
and all of Dr. Beacham’s records.
5. If necessary, the ALJ must enlist the assistance of a medical advisor to determine,
based on all the medical evidence in the record, what effect the claimant’s conditions had on
her ability to perform work activity during the relevant period.
6. The ALJ must obtain supplemental vocational expert testimony if necessary.
7. The ALJ may conduct any additional proceedings that are not inconsistent with this
order.
IT IS, THEREFORE, ORDERED AND ADJUDGED that this case is REVERSED
and REMANDED for further proceedings.
This, the 22nd day of February, 2018.

/s/ Jane M. Virden
U. S. MAGISTRATE JUDGE

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