Askins v. Social Security Administration

Filing 25

JUDGMENT with transcript OPINION attached. IT IS HEREBY ORDERED, ADJUDGED, and DECREED that under Sentence 4 of 42 U.S.C. § 405(g), the final decision of the defendant Commissioner of Social Security denying disability insurance benefits and su pplemental security income benefits to Plaintiff Daniel Wayne Askins is REVERSED. This action is remanded to the Defendant for further proceedings consistent with the court's Oral Opinion. Signed by Magistrate Judge Shirley P. Mensah on 9/13/13. (copy forwarded to Bureau of Hearings and Appeals)(CSG)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
DANIEL WAYNE ASKINS,
Plaintiff,

v.
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

No. 1:12-cv-00174-SPM

JUDGMENT
In accordance with the Oral Opinion entered on September 6, 2013, a transcript of which
is attached hereto,
IT IS HEREBY ORDERED, ADJUDGED, and DECREED that under Sentence 4 of
42 U.S.C. § 405(g), the final decision of the defendant Commissioner of Social Security denying
disability insurance benefits and supplemental security income benefits to Plaintiff Daniel
Wayne Askins is REVERSED. This action is remanded to the Defendant for further
proceedings consistent with the court’s Oral Opinion.

/s/Shirley Padmore Mensah
SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE

Dated this 13th day of September, 2013.

1

Carolyn W. Colvin became the Acting Commissioner of Social Security on February 14, 2013.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin should
therefore be substituted for Michael J. Astrue as the defendant in this case.
1 

Case: 1:12-cv-00174-SPM Doc. #: 24 Filed: 09/12/13 Page: 1 of 16 PageID #: 447

1

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI

2
3

DANIEL ASKINS,

4

Plaintiff,

5

vs.

Cause No. 1:12cv174 SPM

6

SOCIAL SECURITY ADMINISTRATION,

7

Defendant.
================================================
TRANSCRIPT OF RULING

8
9

BEFORE THE HONORABLE SHIRLEY PADMORE MENSAH
UNITED STATES MAGISTRATE JUDGE

10
11

SEPTEMBER 6, 2013
================================================
APPEARANCES

12
For Plaintiff:
13
14
15

Ms. Traci L. Severs
Dennis W. Fox and Associates
211 N. Broadway
Suite 2400
St. Louis, MO 63102

16
17

For Defendant:

18

Ms. Jane Shaw
Ms. Ellie Dorothy
Office of U.S. Attorney
111 S. Tenth Street
20th Floor
St. Louis, MO 63102
Transcribed by:

19
20
21
22
23
24

Alison M. Garagnani, CCR #475, CSR, RMR
Official Court Reporter
United States District Court
555 Independence, Room 3100
Cape Girardeau, MO 63703
[phone]

25
Proceedings Recorded by Electronic Recording
1

Case: 1:12-cv-00174-SPM Doc. #: 24 Filed: 09/12/13 Page: 2 of 16 PageID #: 448

1

(THE PROCEEDINGS BEGAN AT 1:36 P.M.)

2

THE COURT:

Okay.

We're back on the

3

record in Askins V Colvin.

4

did go back and reflect on our discussion this

5

morning and on the argument of counsel, and I am

6

prepared to rule at this time.

7

Over the lunch hour I

The following oral opinion is

8

intended to be the opinion of the Court

9

judicially reviewing the denial of Plaintiff

10

Daniel Wayne Askins' application for disability

11

insurance benefits and supplemental security

12

income under the Social Security Act.

13

The Court has jurisdiction over this

14

matter under 42 U.S.C. Section 405(g) and 1381.

15

The parties have consented to have a United

16

States Magistrate Judge dispose of this case,

17

including entry of final judgment.

18

I have reviewed and considered the

19

administrative record in its entirety, including

20

the briefs of the Plaintiff and the Commissioner,

21

the transcript of the hearing held before the

22

administrative law judge and the written opinion

23

of the administrative law judge.

24
25

The Court has heard oral arguments
by counsel on the pleadings of the parties and

2

Case: 1:12-cv-00174-SPM Doc. #: 24 Filed: 09/12/13 Page: 3 of 16 PageID #: 449

1

now issues its ruling in this oral opinion.

2

By way of background, Plaintiff

3

Daniel Wayne Askins filed his application for

4

Title II and Title XVI benefits on September 8th,

5

2009 claiming he became disabled on January 1,

6

2006, at age 53.

7

onset date to November 20th, 2009, when he was

8

age 57.

9

Plaintiff later amended the

In his application for benefits

10

Plaintiff, who previously worked as a store

11

clerk, alleged disability due to a heart

12

condition, which caused breathing problems.

13

Plaintiff's application was

14

initially denied, and he requested a hearing

15

before an ALJ.

16

On March 9th, 2011, Plaintiff

17

appeared and testified at a hearing before an

18

ALJ.

19

On April 15th, 2011, the ALJ issued

20

a written decision in which he concluded, as

21

summarized previously by the Court, that

22

notwithstanding a severe impairment of coronary

23

artery disease, Plaintiff retains the residual

24

functional capacity to perform light work as

25

defined in 20 CFR Section 404.1567(b), but is

3

Case: 1:12-cv-00174-SPM Doc. #: 24 Filed: 09/12/13 Page: 4 of 16 PageID #: 450

1

limited exertionally to occasionally climbing

2

stairs, climbing ladders, kneeling, stooping

3

crouching, crawling and balancing.

4

The ALJ further found Plaintiff is

5

capable of performing his past relevant work as a

6

store clerk, although not in the way Plaintiff

7

actually performed that work.

8
9
10

As such, the ALJ concluded Plaintiff
was not disabled.
Plaintiff's request for Appeals

11

Council review of the ALJ's decision was denied,

12

and the decision of the ALJ stands as the final

13

decision of the Commissioner.

14

In his brief Plaintiff raised two

15

issues for judicial review.

16

contended the hearing decision is not supported

17

by substantial evidence, because the ALJ failed

18

to properly evaluate the opinion of Plaintiff's

19

treating cardiologist Dr. Craft.

20

First, Plaintiff

Plaintiff's second argument was that

21

the hearing decision was not supported by

22

substantial evidence, because the ALJ also failed

23

to properly evaluate the opinion of Nurse

24

Practitioner Corinna DeFrancesco as expressed in

25

a physical residual functional capacity

4

Case: 1:12-cv-00174-SPM Doc. #: 24 Filed: 09/12/13 Page: 5 of 16 PageID #: 451

1

questionnaire completed by Nurse DeFrancesco.

2

More specifically, the Plaintiff

3

argued the ALJ's failure to even mention the

4

opinion of Nurse DeFrancesco is reversible error

5

and warrants remand.

6

In oral argument today Plaintiff

7

raised challenges for the first time to the ALJ's

8

credibility determination, past relevant work

9

analysis and the ALJ's evaluation of the opinion

10

of Plaintiff's treating urologist Dr. Miller.

11

Although it appears that Plaintiff's

12

counsel raised these issues at least to some

13

extent in an effort to respond to arguments

14

raised in the Commissioner's cross brief, I do

15

agree with the Commissioner that it would be

16

unfair for the Court to consider these arguments

17

without giving the Commissioner a full

18

opportunity to respond with supplemental

19

briefing.

20

However, as it will become evident

21

from my decision today, it's not necessary for

22

the Court to address those issues that were not

23

briefed by Plaintiff in order for me to resolve

24

this case.

25

As the parties are well aware, the

5

Case: 1:12-cv-00174-SPM Doc. #: 24 Filed: 09/12/13 Page: 6 of 16 PageID #: 452

1

Court's role in reviewing the Commissioner's

2

decision is to determine whether the decision

3

complies with the relevant legal requirements and

4

is supported by substantial evidence in the

5

record as a whole.

6

than a preponderance but enough that a reasonable

7

mind might accept it as adequate to support a

8

conclusion.

9

Substantial evidence is less

In determining whether substantial

10

evidence supports the Commissioner's decision the

11

Court considers both evidence that supports the

12

decision and evidence that detracts from that

13

decision.

14

evidence presented to the ALJ, and it defers to

15

the ALJ's determinations regarding the

16

credibility of testimony as long as those

17

determinations are supported by good reasons and

18

substantial evidence.

19

However, the Court does not relay the

If after reviewing the record the

20

Court finds it possible to draw two inconsistent

21

positions from the evidence, and one of those

22

positions represents the ALJ's findings, the

23

Court must affirm the ALJ's decision.

24

cited the cases that state those standards.

25

know the parties are well aware and familiar

6

I've not
I

Case: 1:12-cv-00174-SPM Doc. #: 24 Filed: 09/12/13 Page: 7 of 16 PageID #: 453

1

probably better than I am of the standards in the

2

cases that articulate them.

3

With respect to the Plaintiff's

4

second argument raised in his brief regarding

5

Nurse DeFrancesco on June 9th, 2010, Nurse

6

Practitioner Corinna DeFrancesco -- these are the

7

facts that go to that argument.

8

2010, Nurse Practitioner Corinna DeFrancesco

9

completed a physical residual functional capacity

10
11

On June 9th,

questionnaire.
The record reflects and the parties

12

agree that Nurse DeFrancesco worked with

13

Plaintiff's treating doctor, Dr. Lorna Stookey.

14

The treatment notes of Nurse DeFrancesco were

15

signed by -- co-signed by Dr. Stookey, and some

16

of the notes reflect that Nurse DeFrancesco

17

conferred with either Dr. Stookey or Dr. Craft's

18

office at least on one occasion in her treatment

19

of Plaintiff.

20

Nurse DeFrancesco's assessment,

21

which appears to be based in part on written

22

evaluations of Plaintiff's heart condition by

23

Dr. Craft direct to Dr. Stookey, confirms that

24

Plaintiff was diagnosed with hypertrophic

25

obstructive cardiomyopathy, formerly known as

7

Case: 1:12-cv-00174-SPM Doc. #: 24 Filed: 09/12/13 Page: 8 of 16 PageID #: 454

1

idiopathic hypertrophic sub-aortic stenosis.

2

that condition is referenced in the records as

3

HOCM and IHSS, among other things.

4

And

Nurse DeFrancesco's assessment notes

5

that Plaintiff's symptoms included chest pain

6

fatigue, shortness of breath and syncope --

7

otherwise known as fainting, I believe.

8
9

Nurse DeFrancesco opined Plaintiff's
impairments had lasted or were expected to last

10

at least 12 months, Plaintiff was not a

11

malingerer, and his impairments were reasonably

12

consistent with his symptoms.

13

The tracking -- much of the language

14

found in Dr. Craft's written evaluations Nurse

15

DeFrancesco opined that Plaintiff had the

16

following functional limitations:

17

environments and dehydration.

18

that would create a Valsalvo effect such as

19

holding breath, lifting heavy objects, straining,

20

deep squats or frequent bending over as these

21

could cause sudden death.

22

Avoid warm-hot

Avoid activity

Apparently, based on these

23

limitations, she then concluded Plaintiff should

24

sit at least six hours in an eight-hour workday,

25

stand or walk about two hours in an eight-hour

8

Case: 1:12-cv-00174-SPM Doc. #: 24 Filed: 09/12/13 Page: 9 of 16 PageID #: 455

1

workday, never lift 20 pounds and never stoop,

2

bend, crouch, squat or climb ladders.

3

There appears to be no dispute

4

between the parties that these limitations if

5

accepted would preclude a finding that Plaintiff

6

had the residual functional capacity to perform

7

light work.

8
9

Plaintiff has argued remand is
warranted because the hearing decision doesn't

10

even mention this opinion by Nurse DeFrancesco.

11

I agree with that argument.

12

As Plaintiff correctly points out in

13

his brief, evidence that Nurse DeFrancesco worked

14

with Plaintiff's primary care -- excuse me,

15

Plaintiff's treating doctor, Lorna Stookey, and

16

evidence that Dr. Stookey co-signed most of Nurse

17

DeFrancesco's treatment notes suggests that Nurse

18

DeFrancesco may have been entitled to

19

treating-source status.

20

Although only acceptable medical

21

sources can be considered treating sources

22

pursuant to 20 CFR 404.1502 and a nurse

23

practitioner ordinarily would not be considered

24

an acceptable medical source, as Plaintiff points

25

out in the brief, in Shontos V Barnhart the

9

Case: 1:12-cv-00174-SPM Doc. #: 24 Filed: 09/12/13 Page: 10 of 16 PageID #: 456

1

Eighth Circuit held that if an acceptable medical

2

source oversees the care of patients, then the

3

entire treatment team could have treating-source

4

status.

5

The Commissioner has attempted to

6

distinguish this case -- our present case -- from

7

Shontos by suggesting that the facts here are

8

more in line with the facts of Tindell v.

9

Barnhart in which the Eighth Circuit held the

10

opinion of a licensed social worker who counseled

11

Plaintiff fairly regularly was not entitled to

12

treating-source status.

13

availing.

14

That argument is not

The social worker in Tindell the

15

Eighth Circuit held was not the treating source

16

as defined in the regulations, and more

17

particular to our point here, the Eighth Circuit

18

found that the social worker there was not

19

associated with a physician, psychologist or

20

other acceptable medical source that could

21

potentially give him treating-source status.

22

In light of the relationship between

23

Nurse DeFrancesco and Plaintiff's primary

24

treating doctor and in light of evidence in the

25

record that Nurse DeFrancesco was part of the

10

Case: 1:12-cv-00174-SPM Doc. #: 24 Filed: 09/12/13 Page: 11 of 16 PageID #: 457

1

treatment team to address Plaintiff's heart

2

condition at a minimum the ALJ should have

3

considered whether or not Nurse DeFrancesco was

4

entitled to treating-source status.

5

Even if Nurse DeFrancesco was not

6

entitled to treating-source status her opinion

7

should have been considered by the ALJ.

8

think there's any dispute about that in this

9

case.

10

I don't

Social Security Rule 06-03p states

11

that since there is a requirement to consider all

12

relevant evidence in an individual's case record,

13

the case record should reflect the consideration

14

of opinions from medical sources who are not,

15

quote, acceptable medical sources and from

16

nonmedical sources who have seen the claimant in

17

their professional capacity.

18

Although there is a distinction

19

between what an adjudicator must consider and

20

what the adjudicator must explain in the

21

disability determination or decision, the

22

adjudicator generally should explain the weight

23

given to opinions from those -- from these other

24

sources or otherwise ensure that the discussion

25

of the evidence in the determination or decision

11

Case: 1:12-cv-00174-SPM Doc. #: 24 Filed: 09/12/13 Page: 12 of 16 PageID #: 458

1

allows a claimant or subsequent reviewer to

2

follow the adjudicator's reasoning when such

3

opinions may have an effect on the outcome of the

4

case.

5

Here it is not at all clear from the

6

hearing decision that the ALJ actually considered

7

Nurse DeFrancesco's assessment, and if so, what

8

weight, if any, he may have assigned to it.

9

The Commissioner has acknowledged

10

that Nurse DeFrancesco's opinion should have been

11

considered as an other source, but suggests that

12

the error was harmless.

I disagree.

13

Nurse DeFrancesco's opinion is

14

significant, because it is the only medical

15

opinion in the record that assesses the impact of

16

Plaintiff's heart condition on his ability to

17

function in the workplace.

18

Notwithstanding the Commissioner's

19

argument to the contrary during the hearing, the

20

RFC assessment by the urologist Dr. Miller is not

21

an assessment of what Plaintiff can do or how

22

Plaintiff can function in the workplace despite

23

his heart condition.

24
25

In addition, the opinion by
Plaintiff's cardiologist Dr. Craft that

12

Case: 1:12-cv-00174-SPM Doc. #: 24 Filed: 09/12/13 Page: 13 of 16 PageID #: 459

1

Plaintiff's New York Heart Association

2

classification was Class II is not the equivalent

3

of an assessment in a disability context or

4

Plaintiff's ability to function in the workplace

5

in light of his heart condition.

6

As noted on the record during oral

7

argument, there are cases where courts

8

confronting this issue have held that, while the

9

New York Heart Association classification may be

10

relevant to determining whether or not an ALJ's

11

RFC determination is supported by substantial

12

evidence, that classification standing alone does

13

not equate to a particular RFC assessment.

14

absent assistance from a medical expert an ALJ

15

cannot competently translate a New York Heart

16

Association classification into an actual

17

residual functional capacity assessment.

18

And

In Lauer v. Apfel the Eighth Circuit

19

held that the ALJ bears the primary

20

responsibility for making the RFC determination

21

and for ensuring that there is some medical

22

evidence regarding the claimant's ability to

23

function in the workplace that supports the RFC

24

determination.

25

held the ALJ should obtain medical evidence that

Therefore, the Eighth Circuit has

13

Case: 1:12-cv-00174-SPM Doc. #: 24 Filed: 09/12/13 Page: 14 of 16 PageID #: 460

1

addresses the claimant's ability to function in

2

the workplace.

3

Here, other than Nurse DeFrancesco's

4

assessment, it is unclear to me what medical

5

evidence there is in the record that addresses

6

the claimant's ability to function in the

7

workplace.

8

evidence cited by the Commissioner both in his

9

brief and at oral argument today rises to the

And I'm not persuaded that the

10

level of medical evidence of claimant's ability

11

to function in the workplace.

12

Because the ALJ erred in failing to

13

consider Nurse DeFrancesco's opinion and because

14

a finding -- and that error may have an effect on

15

the outcome of the case, the hearing decision is

16

not supported by substantial evidence, and the

17

Commissioner's decision will be reversed and

18

remanded for further proceedings.

19

On remand the ALJ should consider

20

the opinion of Nurse DeFrancesco and consider

21

whether it should be afforded treating-source

22

status in light of the evidence in the record of

23

her relationship to Dr. Stookey.

24
25

The ALJ should also consider going
back to Dr. Craft for clarification or otherwise

14

Case: 1:12-cv-00174-SPM Doc. #: 24 Filed: 09/12/13 Page: 15 of 16 PageID #: 461

1

enlisting the services of a medical expert who

2

can assist in determining what functional

3

limitations as that term is used in the context

4

of disability insurance benefits might flow from

5

Dr. Craft's NYHA classification assessment.

6

I will enter a judgment on this oral

7

opinion and will order a transcript only of this

8

segment of the hearing today, the segment that

9

covers the oral opinions, so the parties have a

10

written memorialization of the Court's reasoning

11

in this case.

12

Nothing further.

13

MS. DOROTHY:

14

THE COURT:

15

(PROCEEDINGS CONCLUDED AT 1:59 P.M.)

Thank you, Your Honor.
Thank you.

16
17
18
19
20
21
22
23
24
25

15

Case: 1:12-cv-00174-SPM Doc. #: 24 Filed: 09/12/13 Page: 16 of 16 PageID #: 462

1

C E R T I F I C A T E

2
3

I, Alison M. Garagnani, Registered Merit

4

Reporter, hereby certify that I am a duly

5

appointed Official Court Reporter of the United

6

States District Court for the Eastern District of

7

Missouri.

8
9

I further certify that the foregoing is a
true and accurate transcript of the proceedings

10

held in the above-entitled case.

And I further

11

certify that the foregoing pages contain an

12

accurate reproduction from taped proceedings had

13

on that date, transcribed to the best of my

14

ability.

15

I further certify that this transcript

16

contains pages 1 through 16 inclusive and that

17

this reporter takes no responsibility for missing

18

or damaged pages of this transcript when same

19

transcript is copied by any party other than this

20

reporter.

21
22

Dated Cape Girardeau, Missouri, this
12th day of September, 2013.

23
24
25

----------------------------------------/s/Alison M. Garagnani
Alison M. Garagnani, CCR, CSR, RMR.
Official Court Reporter
16