Hines v. Social Security Administration
Filing
14
MEMORANDUM OPINION...the decision of the Commissioner of Social Security is reversed and remanded. An appropriate Judgment Order is issued herewith. re: 12 SOCIAL SECURITY BRIEF filed by Plaintiff Larry Hines, 13 SOCIAL SECURITY CROSS BRIEF re 12 SOCIAL SECURITY BRIEF filed by Defendant Social Security Administration. Signed by Magistrate Judge David D. Noce on 11/21/11. (MRS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
LARRY G. HINES,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
No. 1:11 CV 32 DDN
MEMORANDUM
This action is before the court for judicial review of the final
decision
of
applications
defendant
of
Commissioner
plaintiff
Larry
G.
of
Social
Hines
for
Security
denying
disability
the
insurance
benefits under Title II of the Social Security Act, 42 U.S.C. § 401, et
seq., and supplemental security income under Title XVI of that Act, 42
U.S.C. § 1381, et seq.
The parties have consented to the exercise of
plenary authority by the undersigned United States Magistrate Judge
pursuant to 28 U.S.C. § 636(c).
(Doc. 6.)
For the reasons set forth
below, the decision of the Administrative Law Judge (ALJ) is reversed and
remanded.
I.
BACKGROUND
On June 4, 2007, plaintiff Larry G. Hines applied for disability
insurance benefits and supplemental security income.
(Tr. 70-82.)
In
his applications, he alleged an onset date of November 15, 2005, on
account of diabetes, back problems, hypertension, high cholesterol, and
pain in his hips, shoulders, neck, knees, feet, wrists, and fingers.
(Tr. 48, 97.)
His claims were denied initially on November 2, 2007, and
he requested a hearing before an ALJ.1
1
(Tr. 39-40, 48-54.)
Missouri is one of several test states participating in
modifications to the disability determination procedures which apply in
this case. 20 C.F.R. §§ 404.906, 404.966 (2007). These modifications
(continued...)
On August 14, 2009, following a hearing, the ALJ found Hines was not
disabled. (Tr. 7-17.) On January 28, 2011, after considering additional
medical records submitted directly to it, the Appeals Council denied his
request for review.
(Tr. 1-5.)
Thus, the decision of the ALJ stands as
the final decision of the Commissioner.
II.
MEDICAL HISTORY
In 1992, Hines complained of a headache, neck pain, and dizziness.2
He was prescribed Hydrocodone.3
(Tr. 238.)
On July 7, 1992, Timothy Oltersdorf, M.D., reported to Dennis
Lehman, M.D., that an MRI revealed that Hines possibly had an acute
sinusitis.
Dr. Oltersdorf, however, ruled out subdural hemotoma
(Tr.
239.)
On July 9, 1992, M. Wallid Asfour, M.D., wrote to Dr. Lehman that
he saw Hines for complaints of a headache, weakness in his arms, memory
difficulties, and balance problems. Dr. Asfour noted that Hines had been
hit in the left occipital area by a baseball bat, and that Hines had
right ankle surgery in 1983.
Dr. Asfour opined that Hines suffered from
post cerebral concussive syndrome with headache; being off balance;
irritability; memory difficulty; and air fluid level in the right
sphenoid sinus, of doubtful significance.
and Hydrocodone.4
Dr. Asfour prescribed Elavil
(Tr. 240-41.)
On August 13, 1992, Dr. Asfour wrote to Dr. Lehman again after
seeing Hines.
Dr. Asfour offered the same assessment and discontinued
1
(...continued)
include, among other things, the elimination of the reconsideration step.
See id.
2
The source of these medical records is not apparent from the
administrative record.
3
Hydrocodone is to relieve moderate to severe pain.
http://www.webmd.com/drugs (last visited November 9, 2011).
4
WebMD,
Elavil is used to treat certain mental/mood problems, including
depression. WebMD, http://www.webmd.com/drugs (last visited November 9,
2011).
- 2 -
Hines’s Elavil and muscle relaxants in favor of Relafen, a pain reliever,
and Pamelor, an antidepressant.5
(Tr. 242-43.)
Records from August and September, 1992, indicate that Hines was
prescribed Vicodin for continued head pain.6
(Tr. 244.)
On September 17, 1992, Dr. Asfour wrote to Dr. Lehman after seeing
Hines.
Dr. Asfour added to his previous assessments that Hines suffered
from post traumatic neck pain radiating to the left upper extremity with
intermittent
numbness
radiculopathy.
of
the
left
hand.
He
ruled
out
cervical
Dr. Asfour discontinued Hines’s Pamelor, added Parafon
Forte DSC, and ordered x-rays.7
(Tr. 245-46.)
From September 24, 1992 to June 26, 1997, Hines complained of, at
varying times and to varying degrees, pain in his left arm, ribs, neck,
back, both legs, kidney, groin, and ankle.
medications, including Vicodin.
He was prescribed various
(Tr. 247-54.)
On October 17, 1995, an MRI of Hines’s lumbar spine revealed minimal
osteophyte formations at L4 and L5 and slight scoliosis.
M.D., noted that this was normal.
Miguel Alday,
(Tr. 270.)
On June 27, 1997, Gary Gottfried, M.D., wrote to Dr. Lehman after
evaluating Hines’s neck and right forearm pain.
Hines reported that the
pain began a month prior, when he attempted to move a heavy stove.
Dr.
Gottfried opined that Hines had median nerve conduction slowing across
his right wrist, consistent with mild-to-moderate Carpal Tunnel Syndrome.
Dr. Gottfried noted that an electromyography examination of Hines’s
cervical and upper thoracic paraspinal muscles appeared normal.
(Tr.
255-56.)
5
Relafen is used to reduce pain, swelling, and joint stiffness from
arthritis. Pamelor is used to treat certain mental/mood problems,
including depression. WebMD, http://www.webmd.com/drugs (last visited
November 9, 2011).
6
Vicodin is used to relieve moderate to severe pain.
http://www.webmd.com/drugs (last visited November 9, 2011).
7
WebMD,
Parafon Forte DSC is used to treat pain and discomfort from muscle
injuries. WebMD, http://www.webmd.com/drugs (last visited November 9,
2011).
- 3 -
From June 30, 1997 to October 9, 1998, Hines was prescribed Vicodin
and Hydrocodone for pain in his back, neck, shoulder, feet, leg, and
ankle.
(Tr. 258-59.)
On May 29, 1998, Gregory Jaryga, D.P.M., P.C., wrote to Dr. Lehman
after examining Hines for foot pain.
Dr. Jaryga recommended that Hines
buy a new pair of work boots and prescribed Lodine.8
(Tr. 260-61.)
From October 10, 1998 to December 12, 2002, Hines continued to
complain of pain in his head, neck, and shoulders.
9
Hydrocodone, and Oxycontin prescriptions were refilled.
His Vicodin,
(Tr. 262-69.)
On March 7, 2000, a CT scan of Hines’s face and jaw ordered by Dr.
Lehman was approved by Sunbelt Medical Management.
Sunbelt approved three specialist visits.
On March 16, 2000,
(Tr. 275-76.)
On March 9, 2000, Gary Waddell, M.D., evaluated images of Hines’s
sinus and opined that Hines had complete opacification of the sphenoid
sinuses, mucosal thickening, and a deviated nasal septum.
(Tr. 278.)
On March 15, 2000, John Shea, M.D., examined Hines upon complaints
of headaches, a deviated septum, sinus infections, and post nasal
drainage.
Dr. Shea opined that Hines suffered from chronic sinusitis
with associated headaches, dietary sensitivities, and possible inhalant
rhinitis. Dr. Shea prescribed Dynabac, Nasarel, and Aquatab, and advised
Hines to stay hydrated and return in one month.10
(Tr. 277.)
On September 7, 2000, Sunbelt approved a contrast x-ray of Hines’s
urinary tract.
(Tr. 279.)
From 2003 to 2005, Hines was seen at Shaw Medical Center in
Burleson, Texas.
During this time, his diabetes was evaluated and blood
8
Lodine is used to relieve pain, swelling, and joint stiffness from
arthritis. WebMD, http://www.webmd.com/drugs (last visited November 9,
2011).
9
Oxycontin is used to relieve moderate to severe ongoing pain.
WebMD, http://www.webmd.com/drugs (last visited November 9, 2011).
10
Dynabac is used to treat bacterial infections in the throat.
Nasaral is used to prevent and treat seasonal and year-round allergy
symptoms. Aquatab is used to temporarily treat cough, chest congestion,
and stuffy nose symptoms.
WebMD, http://www.webmd.com/drugs (last
visited November 9, 2011).
- 4 -
work was regularly taken.
control.
He
was
As of October, 2004, his diabetes was under
prescribed
and
refilled
his
Diazepam, Hydrocodone, and Actos prescriptions.11
Vicodin,
Valium
and
(Tr. 206-13.)
On June 29, 2005, Stephen A. Segall, M.D., noted that Hines was a
new
patient
hypertension.
with
a
history
of
diabetes,
hypercholesterolemia,
12
Hines had been taking Crestor
and
and had been treated in
Texas for years for chronic low back pain, although there was no
radiology in his old chart supporting this.
Hines also suffered from
muscle spasms in his neck, which he treated with Diazepam.
(Tr. 147.)
On August 10, 2005, Mark D. Zobres, D.O., opined that Hines’s
vertebra and interspaces were well maintained in their axial height and
demonstrated
normal
signal.
Dr.
Zobres
found
no
disc
protrusion, spinal stenosis, or foraminal encroachment.
Hines’s lumbar spine was negative.
bulging,
An MRI of
(Tr. 152.)
From August 19, 2005 to June 22, 2009, Hines followed-up with Dr.
Segall.
Hines reported pain in his back, knees, and hips.
Dr. Segall
noted Hines’s diabetes, hypertension, and gastroesophageal reflux disease
(GERD).
(Tr. 139-46, 195-96, 202-05, 230-34, 280-84.)
On June 18, 2007, Hines completed a work history report in which he
listed his prior work as an assistant construction supervisor and as a
maintenance man.
As an assistant supervisor, he spent two hours daily
walking, standing, and sitting, and one hour climbing, but did no lifting
or carrying.
As a maintenance man, he spent two hours daily walking,
standing, and sitting; one hour climbing; fifteen minutes stooping;
forty-five minutes kneeling; fifteen minutes writing and handling small
objects; and sometimes lifted twenty pounds.
(Tr. 104-110.)
That same day, Hines also completed a Function Report - Adult form.
He listed his daily activities as waking up, taking his medicine, making
11
Valium and Diazepam are used to treat anxiety, acute alcohol
withdrawal, and seizures. Actos is an anti-diabetic drug used to control
high blood sugar in patients with type 2 diabetes.
WebMD,
http://www.webmd.com/drugs (last visited November 9, 2011).
12
Crestor is used to help lower bad cholesterol and fats and raise
good cholesterol in the blood. WebMD, http://www.webmd.com/drugs (last
visited November 9, 2011).
- 5 -
breakfast, sitting down, watching television, and sitting on the porch.
He reported living alone in a trailer and not taking care of other people
or pets.
He stated that illnesses and injuries reduced his ability to
sit, stand, and sleep.
caring for his hair.
He reported having pain dressing, bathing, and
He also reported that he prepares his own meals and
goes shopping once a week, but that his sister does his laundry and his
landlord cares for his yard.
He also reported having pain lifting,
walking, climbing stairs, squatting, sitting, bending, kneeling, using
his hands, standing, and reaching.
(Tr. 111-18.)
On August 3, 2007, Hines was transferred to St. Francis Medical
Center for treatment of a grade one open right ankle (tibia-fibula)
fracture.
X-rays revealed extensive soft tissue swelling.
Patrick R.
Knight, M.D., performed corrective surgery that day, to which Hines
responded well. On August 6, 2007, Hines had repeat washout surgery, and
was discharged on August 10, 2007.
Dr. Knight noted that Hines had
social issues, which they discussed.
Dr Knight advised Hines that
failure to follow his instructions would jeopardize his outcome.
(Tr.
156, 158, 160-62, 167.)
On August 20, 2007, Hines followed-up with Dr. Knight.
looked good; there was no evidence of infection.
a split and told to follow-up in a week.
His wound
His ankle was put in
(Tr. 170.)
On August 23, 2007, Hines was seen by Patrick J. LeCorps, M.D., at
the request of the Missouri Department of Family Services, upon a
complaint of chronic lower back pain for the past thirty years.
Dr.
LeCorps noted that Hines was morbidly obese, diabetic, and hypertensive
with hypercholesterolemia.
Hines reported having pain irradiating to
both legs with the left side worse than the right.
he
stopped
working
because
of
the
severity
He also reported that
of
the
pain.
Upon
examination, Hines was unable to stand because of his right ankle injury.
He had no leg length discrepancy, no pelvic tilt, and no surgical scars.
Straight leg raising testing was sixty degrees on both sides.
A FABER
test, foraminal compression test, and Naffziger sign were all negative.13
13
A FABER test is used to determine the presence of sacroiliac
disease, which is a disease caused by high-impact trauma to the
(continued...)
- 6 -
Deep tendon reflexes of the knees and ankles were normal, and his
extensor hallucis longus was strong on the left side.14
A spinal x-ray
revealed no spondylolysis, spondylolisthesis, or disc space narrowing,15
although there was some evidence of anterior traction spurs due to
arthritis.
There was no evidence of facet joint arthropathy, but there
was sclerosis of the pedicle of L5 on the left.
curvature at L1-T12, x-rays were normal.
Beyond a slight
Dr. LeCorps opined that a
spinal MRI was needed for a definitive diagnosis.
(Tr. 194.)
On August 27, 2007, Hines followed-up with Dr. Knight regarding his
ankle injury.
He had a little drainage, but no pus.
Dr. Knight removed
the lateral staples, prescribed Keflex and told Hines to follow-up in ten
days.16
(Tr. 171.)
On August 28, 2007, Hines met with Chul Kim, M.D., upon referral
from the Missouri Department of Elementary and Secondary Education
section of Disability Determinations, for examination of his lower back.
Hines reported constant aching pain in his lower back through his hips.
Hines stated that prior to his ankle injury, he was able to stand for ten
or fifteen minutes; walk fifty yards; lift twenty pounds; sit for fifteen
or twenty minutes; and drive a vehicle for fifteen or twenty minutes.
13
(...continued)
sacroiliac
joint,
located
at
the
bottom
of
the
back.
http://physicaltherapy.about.com/od/orthopedicsandpt/ss/LEspec
ialtests_2.html (last visited November 9, 2011). A Naffziger sign is
used to diagnose sciatica or a herniated intervertebral disc.
http://www.medical-dictionary.thefreedictionary.com
(last
visited
November 9, 2011).
14
The extensor hallucis longus is the muscle responsible for
extending (pulling back) the big toe.
http://www.sportsinjuryclinic.net/cybertherapist/muscles/extensor_hall
ucis_longus.php (last visited November 9, 2011).
15
Although often used interchangeable, spondylolysis refers to the
separation of the pars interarticularis, a small arch in the back of the
spine, while spondylolisthesis refers to slippage of one vertebra over
another. Spondylolysis & Spondylolisthesis, http://www.spine-health.com
(last visited November 9, 2011).
16
Keflex is used to treat a wide variety of bacterial infections.
WebMD, http://www.webmd.com/drugs (last visited November 9, 2011).
- 7 -
His ankle injury required him to use crutches to walk and caused him
pain, although not as much as his back.
(Tr. 178.)
An examination revealed that Hines’s back was tender and that his
lumbar spine had limited flexion.
Straight leg raising was up to sixty
degrees on the right side and fifty degrees on the left side with hip and
lower back pain.
His right hip and right knee had limited flexion and
pain. His right lower leg was covered with a splint and bandages, tender
at the ankle, and immobile.
He was not able to put any weight on his
right leg, and had difficulty getting off the examination table.
X-rays
of the lumbar spine revealed a ten-degree scoliosis with convexity to the
right at L3-4 and degenerative joint disease with a mild degree of bone
spur formation at multiple vertebrae. Dr. Kim’s impressions were chronic
lower back pain radiating to bilateral lower extremities with lumbar
strain; probable degenerative joint disease; and recent right ankle
fracture.
(Tr. 179-80.)
That day, Dr. LeCorps examined Hines and completed a Medical Report
for the Missouri Department of Social Services.
Dr. LeCorps opined that
Hines would be incapacitated for three to five months.
(Tr. 192-93.)
On September 4, 2007, Hines followed-up with Dr. Knight.
The
drainage issue from his ankle injury was resolved and his wound looked
good.
Dr. Knight removed all but the medial staples and told Hines to
return in two weeks.
(Tr. 172.)
On September 17, 2007, Hines followed-up with Dr. Knight. His wound
looked good and there was no evidence of infection.
Dr. Knight removed
the final staples and told Hines to return in two weeks.
(Id.)
On October 1, 2007, Hines followed-up with Dr. Knight.
debrided a small area that did not appear infected.
Dr. Knight
Radiographs showed
adequate alignment, although fracture lines were still present.
Dr.
Knight prescribed Keflex as a prophylactic and told Hines to return in
three weeks.
(Tr. 185, 188.)
On October 22, 2007, Hines followed-up with Dr. Knight.
He still
had one small area that was continuing to heal but it did not appear
infected.
Dr. Knight changed his dressing, advised him to start testing
his range of motion but not to bear weight, and told him to return in two
weeks.
(Tr. 186.)
- 8 -
On November 2, 2007, Melissa Guilliams, a medical consultant, opined
that Hines could lift ten pounds occasionally and less than ten pounds
frequently; stand and/or walk for at least two hours in an eight-hour
workday; sit about six hours in an eight-hour workday; and push and/or
pull
without
limitations
limitation.
credible
and
Guilliams
opined
found
that
Hines’s
Hines
could
allegations
frequently
of
climb
ramps/stairs and stoop, but only occasionally balance, kneel, crouch, and
crawl.
Guilliams further opined that Hines had no manipulative, visual,
or communicative limitations and had no environmental limitations beyond
avoiding concentrated exposure to vibration.
(Tr. 42-45.)
On November 5, 2007, Hines followed-up with Dr. Knight.
noted that the wound continued to heal nicely.
Dr. Knight
Dr. Knight debrided the
wound a little, noted no evidence of infection, and told Hines to followup in three weeks.
(Tr. 187.)
On November 26, 2007, Hines followed-up with Dr. Knight. Dr. Knight
noted that the wound had finally healed and looked great.
He ordered x-
rays be taken in a few weeks and noted that if the x-rays looked good
then he might increase Hines’s weight bearing.
(Tr. 224.)
On December 17, 2007, Hines followed-up with Dr. Knight. Dr. Knight
noted that Hines’s wound had healed and that Hines had a significant
callus formation that looked good.
Dr. Knight told Hines to begin
bearing weight in his boot, showed him range of motion and strengthening
exercises, and directed him to follow-up in six weeks.
(Tr. 225.)
On January 7, 2008, Hines followed-up with Dr. Knight.
He had a
very limited range of motion and ankylosis of his ankle but was walking
in his boot.
X-rays showed no changes.
Hines was to continue bearing
weight and to follow-up in three months for another x-ray.
Dr. Knight
noted that Hines was applying for disability benefits, and opined that
Hines was totally disabled from his ankle injury.
(Id.)
On January 29, 2008, Dr. Segall completed a Medical Source Statement
form.
Dr. Segall stated that Hines was receiving treatment for lower
back pain, diabetes, high blood pressure, an ankle fracture, chronic
sinusitis with headaches, neck spasms, and arthritis of the hips, knees,
and shoulders. Dr. Segall opined that Hines could lift and/or carry five
pounds frequently; stand and/or walk for less than fifteen minutes
- 9 -
continuously; sit continuously or throughout an eight-hour work day for
less than fifteen minutes; and could not push or pull.
opined
that
occasionally
Hines
stoop,
could
never
crawl,
climb,
reach,
frequently see, hear, and speak.
balance,
handle,
Dr. Segall also
kneel,
finger,
and
or
crouch;
feel;
and
Dr. Segall noted that Hines was to
avoid any exposure to vibration, hazards, and heights, and to avoid even
moderate exposure to extreme cold, extreme heat, weather, wetness,
humidity, dust, and fumes.
(Tr. 198-200.)
On February 5, 2008, Dr. Knight wrote an open letter stating that
Hines has suffered a severe distal tibial intra-articular fracture prior
to August 6, 2007, and had surgery in August, 2007.
Dr. Knight wrote
that although Hines had healed, his ankle injury remained a significant
disability because of pain and his inability to walk.
Dr. Knight opined
that because of the ankle injury, Hines was disabled and unable to work.
(Tr. 220.)
On April 7, 2008, Hines followed-up with Dr. Knight.
Dr. Knight
noted that his wound looked good, although he still had considerable
swelling.
Hines was able to wear a normal boot and ambulate with minimal
difficulty.
X-rays showed a well-healed fracture.
Dr. Knight released
Hines to perform activities as-tolerated, and opined that Hines was going
to be disabled from his ankle injury.
(Tr. 237.)
On April 21, 2008, Dr. Knight completed a Medical Source Statement
form based on Hines’s right ankle injury.
Dr. Knight opined that Hines
could lift twenty-five pounds frequently and fifty pounds occasionally;
stand and/or walk less than fifteen minutes continuously and less than
one hour in an eight-hour workday; sit for three hours continuously and
eight hours in an eight-hour workday; and not push or pull.
Dr. Knight
also opined that Hines could never climb or balance; occasionally stoop,
kneel, crouch, or crawl; and frequently reach, handle, finger, feel, see,
hear, and speak.
Dr. Knight listed no environmental factors, and opined
that Hines did not need to lie down to alleviate symptoms during an
eight-hour workday.
(Tr. 227-29.)
On April 25, 2009, Hines completed a Daily Activities form.
He
reported that he was not working and that his health precluded him from
working regularly.
He stated that each day was a “bad day” in which he
- 10 -
functioned very poorly; he had difficulty getting up and had pain when
he moved.
He reported difficulty sleeping, climbing stairs, helping
others, and shopping, although he was able to make some meals and do his
own laundry.
He also indicated having difficulty with all work-related
activities, including sitting, standing, walking, lifting, crouching,
bending, understanding, and concentrating.
(Tr. 134-38.)
On June 12, 2009, Hines was seen at St. Francis Medical Center for
shortness of breath and anxiety.
He was treated by Donna Carney, M.D.,
and advised to return to the emergency room if his symptoms persisted.
(Tr. 285-88.)
On August 18, 2009, Dr. Zubres reported imaging results to Abdul
Naushad, M.D.
Imaging of Hines’s lumbar spine showed no vertebral
compression, normal bone density, intact interspaces, and small-tomoderate marginal osteophytes.
Dr. Zubres opined that Hines suffered
from mild-to-moderate lumbar spondylosis.
Imaging of Hines’s knees
revealed mild-to-moderate narrowing, lateral meniscal compartment, normal
bone density, and no joint effusions or loose bodies.
Dr. Zubres opined
that as to his right knee, Hines suffered from degenerative narrowing and
lateral meniscal compartment, and as to his left knee, Hines suffered
from lateral degenerative joint disease, symmetric with the right side.
(Tr. 289-90.)
Imaging of Hines’s left ankle revealed no fracture or dislocations;
intact ankle mortise; normal bone density; no soft tissue abnormalities;
and a large plantar calcaneal spur.
heel spur.
Dr. Zubres opined that Hines had a
Imaging of Hines’s right ankle showed old healed fracture
deformities of the distal tibial and fibular shafts; internal fixation
by metallic plates; narrowing of the lateral ankle mortise; degenerative
spurring of the medial dome of the talus; and a prominent heel spur.
Dr.
Zubres opined that Hines had internal fixation of the distal tibia and
fibula, degenerative changes at the ankle mortise, and a heel spur. (Tr.
291-93.)
Imaging of Hines’s cervical spine revealed mild osteopenia, mild
narrowing, C6 and C7 disc spaces with small marginal osteophytes, and
- 11 -
intact posterior elements and dens.17
Dr. Zubres opined that Hines had
mild osteopenia and mild degenerative joint disease.
Imaging of Hines’s
cervical spine revealed straightening of the cervical lordosis;18 no
vertebral
compression
or
disc
space
narrowing;
dehydration
in
all
cervical discs; a minor concentric C4 and C5 disc bulge; no disc
protrusions, spinal stenosis, or foraminal encroachment; and a normal
cord signal.
Dr. Zubres opined that Hines had minor degenerative joint
disease and a disc bulge at C4-5.
Imaging of Hines’s lumbar spine
revealed
or
no
vertebral
compression
disc
space
narrowing;
mild
desiccation of the L4 disc; minor marginal osteophytes; small-to-moderate
sized left foraminal and lateral protrusion of the L3 disc; a minor L4
disc bulge; no spinal stenosis; and a conus medullaris at L1. Dr. Zubres
opined that Hines had mild desiccation of the L4 disc, left foraminal and
lateral protrusion of the L3 disc, and a minor disc bulge at L4.
(Tr.
294, 302-03.)
On September 25, 2009, Hines saw Dr. Naushad for a routine visit.
Hines reported his pain as a level ten on a ten-point scale; that his
medicine was working but could be stronger; that he had no side effects
from his medication; and that the humidity and weather were making him
hurt worse.
He complained of pain in his back, shoulders, forearms,
wrists, hips, and ankles.
Dr. Naushad prescribed Kadian, Naproxen, and
Oxycodone, and advised Hines to lose weight and follow-up in one month.19
(Tr. 297-301.)
In an undated Disability Report - Adult form, Hines listed his
height as five feet, eight inches and his weight as 250 pounds.
He
stated that his diabetes, back, hips, shoulders, neck, knees, feet,
17
The dens, or odontoid process, is a toothlike process that projects
from the superior surface of the body at C2.
http://www.medicaldictionary.threfreedictionary.com/den (last visited November 9, 2011).
18
Lordosis is an increased curving of the spine.
http://www.nlm.nih.gov (last visited November 9, 2011).
19
Medline Plus,
Kadian and Oxycodone are used to help relieve moderate to severe
ongoing pain. Naproxen is used to relieve pain from various conditions,
including headaches, muscle aches, tendonitis, and dental pain. WebMD,
http://www.webmd.com/drugs (last visited November 9, 2011).
- 12 -
wrist, fingers, hypertension, high blood pressure, and high cholesterol
prohibited him from working because they made his fingers and feet numb
and his back, hips, and knees hurt.
2005, because he was laid off.
He stopped working on November 15,
His previous job as an assistant
supervisor required him to spend ten hours daily walking, standing,
climbing, writing, and handling small objects; three hours stooping; one
hour climbing; sometimes carrying materials weighing fifty pounds six or
eight feet; and frequently lifting less than ten pounds. He finished the
twelfth grade and has special training in heating and air conditioning.
He cannot read, write, or spell well.
(Tr. 96-102.)
In an undated Disability Report - Appeal form, Hines reported an
increase in his back and leg pain since 2007 from his broken ankle.
He
also stated that his illnesses and injuries made caring for his personal
needs difficult.
(Tr. 125, 128.)
In an undated Recent Medical Treatment form, Hines reported visiting
Dr. Segall monthly for three and one-half years.
Hines stated that Dr.
Segall told him that his condition had not improved, that he did not
expect any improvement, and that he expected his condition to worsen.
(Tr. 131.)
Testimony at the Hearing
On July 15, 2009, a hearing was held before an ALJ.
Hines testified to the following.
He was born on March 22, 1952, and was
fifty-seven years old at the time of the hearing.
twelfth grade and can read fairly well.
children under the age of eighteen.
and weighs 302 pounds.
a Medicaid card.
(Tr. 20-38.)
He completed the
He is unmarried and has no
He is five feet, eight inches tall
He has no source of income, although he does have
He has a driver’s license but his vehicle is not
licensed and he does not have insurance; other people drive him around.
(Tr. 22-24.)
Hines last worked in 2005 doing maintenance work at the Southeast
Community Treatment Center.
Presently, he would not be able to do the
lifting and other strenuous work of that job.
Although he did not miss
work because of his health problems, his employer allowed him to take
frequent breaks.
Before working there, he did construction work for
- 13 -
Thomas S. Burns, where he only lifted ten or twelve pounds at a time.
He could not do this work presently because has too much pain in his
back, legs, hips, and knees.
(Tr. 25-27.)
His doctors in Texas told him that his pain was caused by scoliosis.
He sees a pain doctor, Dr. Segall, who gives him medication and checks
his blood sugar and pressure.
hips, knees, and ankles.
He has pain in his shoulders, lower back,
Dr. Knight told him that he would probably not
be able to work because of damage done to his leg.
He has been hurting
for more than twenty years, during which time he worked off and on
because of his pain.
His pain got so bad that he would go home and cry
at night and wake up the next morning dreading to try going to work.
The
pain is a constant ache, although it is also sharp and causes numbness.
(Tr. 27-28.)
In 2006, he broke his ankle in an accident. He is in constant pain,
the severity of which is between eight and ten on a scale of one to ten.
He had to go to the emergency room in June because he felt like he could
not breathe.
Dr. Segall gives him pain medication, although it never
takes the pain away or makes it tolerable.
almost anything.
His pain worsens when he does
When he first hurt his back, he used a TENS unit and
had therapy, but they did not help.
(Tr. 29-31.)
His pain precludes him from working.
He cannot walk far without a
problem and can sit for only about twenty minutes at a time.
stand in one place for only between five and ten minutes.
He rarely goes
grocery shopping; his sister-in-law often gets his groceries.
painful for him to bend over and touch his knees.
down and get back up slowly.
He can
It is
He is able to stoop
He could not lift a gallon of milk
throughout the day because his back, hips, and shoulders would hurt. His
lower back hurts when he has to push or pull things.
He gets significant
numbness in his hands and burning and aching in his feet from his
diabetes.
(Tr. 32-34.)
He usually wakes up early because he does not sleep well and goes
to bed at night at 10:30 p.m, although he only sleeps a few hours.
He
tries to go back to bed, but has to take his pain medicine to sleep.
He
does not do much when he is awake during the day.
but it takes a long time.
He cleans his house,
He only leaves to go to the doctor and
- 14 -
occasionally to get groceries.
He does not go to church and rarely
visits friends or relatives. He cannot hunt anymore because of his pain.
He uses paper plates so that he does not have to do the dishes because
it bothers him to stand and try to do dishes.
pressure, but it is controlled by medication.
from working.
He has high blood
The pain is what keeps him
(Tr. 34-37.)
III.
DECISION OF THE ALJ
On August 14, 2009, the ALJ issued a decision denying Hines’s
claims.
(Tr. 10-17.)
special
earnings
At Step One, the ALJ found that Hines met the
requirements
of
the
Act
and
had
not
engaged
in
substantial gainful activity since his alleged onset date, November 15,
2005.
(Tr. 16.)
At Step Two, the ALJ found that Hines has severe impairments of
obesity, status-post right ankle fracture, mild degenerative disc disease
of the lumbosacral spine, and Type II diabetes mellitus, hypertension,
hyperlipidemia, and GERD controlled by medication.
At Step Three, the
ALJ found that none of Hines’s severe impairments met or equaled a listed
impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1.
(Id.)
The ALJ then determined that Hines retained the residual functional
capacity (RFC) to perform the physical exertional and nonexertional
requirements of light work except for lifting or carrying more than ten
pounds frequently or twenty pounds occasionally.
Based on this RFC, at
Step Four the ALJ found that Hines could perform his past relevant work
as a construction industry assistant supervisor.
Thus, the ALJ found
that Hines was not disabled within the meaning of the Act.
IV.
(Tr. 16-17.)
GENERAL LEGAL PRINCIPLES
The court’s role on judicial review of the Commissioner’s decision
is to determine whether the Commissioner’s findings comply with the
relevant legal requirements and is supported by substantial evidence in
the record as a whole.
Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir.
2009). “Substantial evidence is less than a preponderance, but is enough
that
a
reasonable
mind
Commissioner’s conclusion.”
would
Id.
find
it
adequate
to
support
the
In determining whether the evidence is
- 15 -
substantial, the court considers evidence that both supports and detracts
from the Commissioner's decision.
Id.
As long as substantial evidence
supports the decision, the court may not reverse it merely because
substantial evidence exists in the record that would support a contrary
outcome or because the court would have decided the case differently.
See Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002).
To be entitled to disability benefits, a claimant must prove he is
unable to perform any substantial gainful activity due to a medically
determinable physical or mental impairment that would either result in
death or which has lasted or could be expected to last for at least
twelve
continuous
months.
42
U.S.C.
§§
423(a)(1)(D),
1382c(a)(3)(A); Pate-Fires, 564 F.3d at 942.
(d)(1)(A),
A five-step regulatory
framework is used to determine whether an individual qualifies for
disability.
20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); see also Bowen
v. Yuckert, 482 U.S. 137, 140-42 (1987) (describing the five-step
process); Pate-Fires, 564 F.3d at 942.
Steps One through Three require the claimant to prove (1) he is not
currently engaged in substantial gainful activity, (2) he suffers from
a severe impairment, and (3) his impairment meets or equals a listed
impairment.
Pate-Fires, 564 F.3d at 942.
If the claimant does not
suffer from a listed impairment or its equivalent, the Commissioner’s
analysis proceeds to Steps Four and Five.
Id.
Step Four requires the
Commissioner to consider whether the claimant has the RFC to perform his
past relevant work.
Id.
The claimant bears the burden of demonstrating
he is no longer able to return to his past relevant work.
Id.
If the
Commissioner determines the claimant cannot return to past relevant work,
the burden shifts to the Commissioner at Step Five to show the claimant
retains the RFC to perform other work.
Id.
In this case, the ALJ determined that although Hines suffers from
severe impairments, he retains the RFC to perform his past relevant work
as a construction industry assistant supervisor.
V.
DISCUSSION
Hines argues that the ALJ erred by not giving more weight to the
opinions of his treating physicians, Dr. Knight and Dr. Segall.
- 16 -
He also
argues that the ALJ erred in discounting his credibility.
He further
argues that the ALJ’s determination that he could perform his past
relevant work as a construction industry assistant supervisor is not
supported by substantial evidence because it is conclusory and disputed
by the record.
A.
Opinions of Dr. Knight and Dr. Segall
Hines argues that the ALJ erred by not giving more weight to the
opinions of his two treating physicians, Dr. Knight and Dr. Segall.
The ALJ is required to assess the record as a whole to determine
whether treating physicians’ opinions are inconsistent with substantial
evidence in the record.
20 C.F.R. § 404.1527(d)(2).
A treating
physician’s opinion is generally given controlling weight, but it is not
inherently entitled to it.
Hacker v. Barnhart, 459 F.3d 934, 937 (8th
Cir. 2006). For example, a treating physician’s opinion does not control
when it is undermined by other credible evidence in the record, including
the treating physician’s own inconsistencies.
Heino v. Astrue, 578 F.3d
873, 880 (8th Cir. 2009); Hacker, 459 F.3d at 937.
1.
Dr. Knight
Dr. Knight was Hines’s orthopedic surgeon who treated his right
ankle and continued treating him for his ankle after surgery. On January
7, 2008, Dr. Knight opined that Hines was totally disabled from his ankle
injury. (Tr. 225.) On February 5, 2008, Dr. Knight opined that although
Hines had healed, his ankle injury remained a significant disability
because of pain and his inability to walk, and that because of his ankle
injury, Hines was disabled and unable to work.
(Tr. 220.)
On April 7,
2008, Dr. Knight opined that Hines was going to be disabled from his
ankle injury.
Hines
could
(Tr. 237.)
lift
On April 21, 2008, Dr. Knight opined that
twenty-five
pounds
frequently
and
fifty
pounds
occasionally; stand and/or walk less than fifteen minutes continuously
and less than one hour in an eight-hour workday; sit for three hours
continuously and eight hours total in an eight-hour workday; not push or
pull; never climb or balance; occasionally stoop, kneel, crouch, or
- 17 -
crawl; and frequently reach, handle, finger, feel, see, hear, and speak.
(Tr. 227-29.)
In affording Dr. Knight’s opinions little weight, the ALJ noted that
Dr. Knight’s opinions were contradicted by his treatment notes.
For
example, on April 7, 2008, in addition to opining that Hines would be
disabled from his ankle injury, Dr. Knight opined that Hines’s wound
looked good, although he still had considerable swelling; that he was
able to wear a normal boot and ambulate with minimal difficulty; and that
x-rays showed a well-healed fracture.
(Tr. 237.)
released Hines to perform activities as-tolerated.
Dr. Knight also
(Id.)
The ALJ was
permitted to discount Dr. Knight’s opinion regarding disability on the
basis that it was contradicted by his own treatment notes.
F.3d at 937.
Hacker, 459
Moreover, the ALJ reasoned that the entire documented
course of treatment for Hines’s ankle covered less than the necessary
twelve month period for a finding of disability.
See 20 C.F.R. §
404.1509 (stating that a claimant’s impairment must have lasted or be
expected to last for a continuous period of at least twelve months for
it to be disabling).
The ALJ could not have adopted Dr. Knight’s opinion that Hines is
“disabled,” because this is an issue reserved exclusively for the
Commissioner.
20 C.F.R. §§ 404.1527(e)(1), 416.927(e)(1); Brown v.
Astrue, 611 F.3d 941, 952 (8th Cir. 2010); Stormo v. Barnhart, 377 F.3d
801, 806 (8th Cir. 2004) (“[T]reating physicians’ opinions are not
medical opinions that should be credited when they simply state that a
claimant can not be gainfully employed, because they are merely opinions
on the application of the statute, a task assigned solely to the
discretion of the [Commissioner].” (citation omitted)).
Therefore, substantial evidence supports the ALJ’s decision to
afford little weight to Dr. Knight’s opinion.
2.
Dr. Segall
Dr. Segall was Hines’s primary care physician dating back to June,
2005.
On January 29, 2008, Dr. Segall opined that Hines could lift
and/or carry five pounds frequently; stand and/or walk for less than
fifteen minutes continuously and less than ten minutes in an eight-hour
- 18 -
workday; sit continuously or throughout an eight-hour work day for less
than fifteen minutes; not push or pull; never climb, balance, kneel, or
crouch; occasionally stoop, crawl, reach, handle, finger, and feel; and
frequently see, hear, and speak. (Tr. 198-200.)
The ALJ listed several reasons for affording Dr. Segall’s opinion
little weight.
Hines’s
The ALJ reasoned that Dr. Segall’s notes showed that
diabetes,
hypertension,
hyperlipidemia,
and
GERD
were
well
controlled by prescribed oral medication. Haught v. Astrue, 293 F. App’x
428, 429 (8th Cir. 2008) (per curiam) (holding that the ALJ’s reasons for
affording the treating physician’s opinion little weight, including
because the claimant’s symptoms were controlled by medication when she
took it, were proper).
The ALJ also noted that there was no documented
evidence of secondary damage to Hines’s eyes, heart, brain, or kidneys,
or of any severe neuropathy from either diabetes or hypertension, and
that Dr. Segall’s assessment was based partly on Hines’s allegations that
had no objective support.
See Edwards v. Barnhart, 314 F.3d 964, 967
(8th Cir. 2003) (“[A] statement not supported by medical diagnoses based
on objective evidence[]will not support a finding of disability.”)
Hines’s x-rays and an MRI of his lumbrosacral spine showed only minimal
degenerative
disc
disease.
Moreover,
these
allegations
were
not
mentioned in the majority of Dr. Segall’s medical records. The remaining
impairments, illnesses, and injuries were acute and caused no long-term
limitations or complications.
See Travis v. Astrue, 477 F.3d 1037, 1041
(8th Cir. 2007) (“If the doctor’s opinion is inconsistent with or
contrary to the medical evidence as a whole, the ALJ can accord it less
weight.” (citations omitted)).
Therefore, substantial evidence also supports the ALJ’s decision to
afford Dr. Segall’s opinion little weight.
B.
Credibility
Hines next argues that the ALJ erred in discounting his credibility.
He argues that the ALJ’s credibility analysis was deficient and that the
objective evidence, namely the opinions of Dr. Knight and Dr. Segall and
the disability finding by Dr. LeCorps of the Missouri Department of
Social Services, support his allegations of pain and limitations.
- 19 -
The ALJ found Hines’s allegations concerning the severity of his
symptoms and limitations not credible.
To the extent Hines contests the
sufficiency and content of the ALJ’s credibility analysis, this court
disagrees.
primarily
“The credibility of a claimant’s subjective testimony is
for
the
ALJ
to
decide,
not
the
Massanari, 270 F.3d 715, 721 (8th Cir. 2001).
courts.”
Holmstrom
v.
In assessing a claimant’s
credibility, the ALJ must consider: (1) the claimant’s daily activities;
(2) the duration, frequency, and intensity of pain; (3) precipitating and
aggravating factors; (4) the dosage, effectiveness, and side effects of
medication; (5) any functional restrictions; (6) the claimant’s work
history; and (7) the absence of objective medical evidence to support the
claimant’s complaints.
Finch v. Astrue, 547 F.3d 933, 935 (8th Cir.
2008); Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984).
“An ALJ
who rejects [subjective] complaints must make an express credibility
determination explaining the reasons for discrediting the complaints.”
Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000).
However, the ALJ need
not discuss each factor; the ALJ need only “acknowledge[] and consider[]”
the
Polaski
complaints.
factors
before
discounting
a
claimant’s
subjective
Goff v. Barnhart, 421 F.3d 785, 791 (8th Cir. 2005).
After summarizing Hines’s testimony, the ALJ identified the Polaski
factors.
The ALJ then evaluated Hines’s work record, which he found
neither supported nor detracted from Hines’s credibility, and considered
Hines’s treatment record, including the opinions of Dr. Knight, Dr.
Segall, and Dr. LeCorps.
The ALJ noted that the objective medical
evidence, such as x-rays and an MRI of the lumbosacral spine, was not
consistent with Hines’s complaints, and that Hines did not have most of
the signs typically associated with chronic, severe musculoskeletal pain.
The ALJ also noted that there was no evidence supporting an inability to
ambulate effectively or to perform fine and gross movements effectively
on a sustained basis due to any underlying musculoskeletal impairment.
Forte v. Barnhart, 377 F.3d 892, 895 (8th Cir. 2004) (“[L]ack of
objective medical evidence is a factor an ALJ may consider.”).
The ALJ also noted that although Hines had alleged low back pain for
many years, it had not stopped him from working before he was laid off.
Schach v. Apfel, 210 F.3d 379, 2000 WL 311036, at *1 (8th Cir. 2000)
- 20 -
(unpublished table decision) (per curiam) (holding that the ALJ properly
discredited the claimant’s subjective complaints where the claimant
worked for more than twenty years as an airline pilot prior to the
alleged disability onset date despite having back pain and double
vision); Medhaug v. Astrue, 578 F.3d 805, 816-17 (8th Cir. 2009) (holding
that the ALJ correctly discounted the claimant’s credibility where “[the
claimant] was laid off from [his] position due to a decline in work, and
[the claimant] claimed the date he was laid off was the same date of the
alleged onset of disability”).
The ALJ also noted that Hines did not
require a cane, crutches, or other assistive device to stand or walk.
Guilliams v. Barnhart, 393 F.3d 798, 803 (8th Cir. 2005) (holding that
the claimant did not require a cane was inconsistent with subjective
allegations of functional limitations).
Therefore, the ALJ’s credibility analysis was not deficient and is
supported by substantial evidence.
C.
Step Four
Hines also argues that the ALJ erred in finding that he has the RFC
to perform his past relevant work as a construction industry assistant
supervisor.
Hines asserts that the ALJ’s determination is not supported
by substantial evidence because it is conclusory and disputed by the
record.
At Step Four, the ALJ must consider whether the claimant retains the
RFC to perform his past relevant work, either as the claimant actually
performed the work or as the work is performed generally throughout the
national economy.
Wagner v. Astrue, 499 F.3d 842, 853 (8th Cir. 2007).
If the claimant is able to perform either the specific work previously
done or the same type of work as generally performed, the claimant is not
disabled.
Lowe v. Apfel, 226 F.3d 969, 973 (8th Cir. 2000).
In
determining whether the claimant can perform his past relevant work as
he actually performed it, “[t]he ALJ must . . . make explicit findings
regarding the actual physical and mental demands of the claimant’s past
work.”
Pfitzner v. Apfel, 169 F.3d 566, 569 (8th Cir. 1999); accord
Groeper v. Sullivan, 932 F.2d 1234, 1238 (8th Cir. 1991) (“[A]n ALJ has
an obligation to fully investigate and make explicit findings as to the
- 21 -
physical and mental demands of a claimant’s past relevant work and to
compare that with what the claimant [himself] is capable of doing before
he determines that [he] is able to perform [his] past relevant work.”
(citation omitted) (emphasis in original)).
The ALJ found Hines not disabled because he retained the RFC to
perform his past relevant work as a construction industry assistant
supervisor as he actually performed it.
(Tr. 13, 16.)
In so holding,
the ALJ made no express findings regarding the physical demands of the
job, either as Hines performed it or as generally performed.
Rather,
citing Hines’s June 18, 2007 Work History Report, the ALJ stated only
that Hines’s “past relevant job as a construction assistant supervisor,
as he described and performed it, did not require the performance of work
activities precluded by these limitations.”
(Tr. 13, 104-10.)
The ALJ did not expressly resolve the inconsistencies in the record
regarding
the
demands
assistant supervisor.
of
Hines’s
work
as
a
construction
industry
In an undated Disability Report - Adult form,
Hines stated that his previous job as an assistant supervisor required
him to spend ten hours daily walking, standing, climbing, writing, and
handling small objects; three hours stooping; one hour climbing; to
sometimes carry materials weighing fifty pounds six or eight feet; and
to frequently lifting less than ten pounds.
(Tr. 98-99.)
In his June
18, 2007 Work History Report, Hines stated that his construction industry
assistant supervisor job required him to spend two hours daily walking,
standing, and sitting, and one hour climbing, but no lifting or carrying.
(Tr. 104-07.)
At the hearing, Hines testified that his construction
industry assistant supervisor position required him to lift ten or twelve
pounds at a time.
(Tr. 26.)
The ALJ did make express findings resolving
these differing job descriptions.
The Commissioner concedes the ALJ did not make explicit findings
regarding the physical and mental demands of Hines’s past work as a
construction superintendent, but contends that remand is not necessary
because the ALJ was permitted “to implicitly resolve the inconsistencies
in these reports against [Hines].”
(Doc. 13 at 14.) However, the Eighth
Circuit has made clear that an ALJ’s “failure to fulfill this obligation
[to make explicit findings as to the demands of a claimant’s past work]
- 22 -
requires reversal.”
Groeper, 932 F.2d at 1238; see Pfitzner, 169 F.3d
at 569 (reversing because the ALJ’s implicit reference to the Dictionary
of
Occupational
Titles
“le[ft]
to
speculation
which
of
the[]
job
descriptions reflect[ed] [the claimant’s] past relevant work”).
Therefore,
remand
is
necessary
for
the
ALJ
to
resolve
the
inconsistencies and make express findings regarding the physical and
mental demands of Hines’s past relevant work as a construction industry
assistant supervisor. In addition, given the discrepancies regarding the
demands
of
Hines’s
past
work,
the
ALJ
should
obtain
additional
information from either a vocational expert (VE) or the Dictionary of
Occupational Titles to determine the demands of Hines’s past work as he
actually performed it.
20 C.F.R. § 404.1560(b) (noting that “[s]uch
evidence may be helpful in supplementing or evaluating the accuracy of
the claimant’s description of his past work.” (emphasis omitted)); 20
C.F.R. § 416.960(b)(2) (noting that “[s]uch evidence may be helpful in
supplementing or evaluating the accuracy of the claimant’s description
of his past work”); see also Duncan v. Astrue, No. 4:09CV00458 JTR, 2010
WL 3523064, at *4 (E.D. Ark. Sept. 3, 2010) (holding the ALJ properly
relied on VE testimony in finding that the claimant could return to his
past relevant work as he actually performed it where the claimant’s
characterization of his work was inconsistent and not credible).
After
making express findings regarding the demands of Hines’s past work, the
ALJ should then determine whether Hines can perform this work in light
of his RFC.
VI.
CONCLUSION
For the reasons set forth above, the decision of the Commissioner
of Social Security is reversed and remanded.
An appropriate Judgment
Order is issued herewith.
/S/
David D. Noce
UNITED STATES MAGISTRATE JUDGE
Signed on November 21, 2011.
- 23 -
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?