Faries v. Colvin

Filing 17

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED and the case is REMANDED for further proceedings. A separate Judgment shall accompany this Memorandum and Order. Signed by District Judge Audrey G. Fleissig on 9/28/2016. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION
MARIA FARIES,
Plaintiff,
v.
CAROLYN COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No. 1:15CV00144 AGF

MEMORANDUM AND ORDER
This action is before this Court for judicial review of the final decision of the
Commissioner of Social Security finding that Plaintiff Maria Faries was not disabled, and,
thus, not entitled to disability insurance benefits under Title II of the Social Security Act,
42 U.S.C. §§ 401, et seq., or supplemental security income (“SSI”) under Title XVI of the
Social Security Act, 42 U.S.C. §§ 1381, et seq. For the reasons set forth below, the
decision of the Commissioner will be reversed and the case remanded for further
development of the record.
BACKGROUND
Plaintiff, who was born on January 18, 1975, previously filed an application for
disability insurance benefits on October 27, 2009. By decision dated August 10, 2011, an
Administrative Law Judge (“ALJ”) awarded a closed period of disability from May 25,
2007 (her last day of work), through April 30, 2009, due to surgery on her back (L4-5 and
L5-S1 diskogram on June 11, 2007, lumbar myelogram on June 19, 2007, and L4-5 and

L5-S1 posterior lumbar interbody fusion on July 12, 2007), wrists (bilateral carpal tunnel
release surgeries in January 2008, and reconstructive surgery for a broken left wrist in May
and August 2008), and left shoulder (reduction internal fixation surgery on July 25, 2008).
The ALJ found that beginning May 1, 2009, through the date of the decision, Plaintiff was
able to perform substantial gainful activity. (Tr. 54-65.)
Plaintiff filed her current applications for benefits on April 5, 2012, alleging a
disability onset date of February 6, 2009, due to surgery on her back, wrists, and left
shoulder.1 After Plaintiff’s applications were denied at the initial administrative level, she
requested a hearing before an ALJ. Such a hearing was held on December 5, 2013, at
which Plaintiff and a vocational expert (“VE”) testified. By decision dated March 13,
2014, the ALJ found that Plaintiff suffered from the severe impairment of degenerative
disc disease of the lumbar spine with status post fusion, but that she had the residual
functional capacity (“RFC”) to perform the full range of sedentary work, and in light of her
vocational factors (age, education, and work experience) was not disabled under the
Commissioner’s Medical-Vocational Guidelines (“Guidelines”) found at 20 C.F.R. Pt.
404, Subpart P, Appendix 2.2 Plaintiff’s request for review by the Appeals Council of the
Social Security Administration was denied on June 11, 2015. Plaintiff has thus exhausted
Plaintiff also alleged that she suffered from headaches, and the record suggests that
she experienced depression intermittently. But the only issues raised by Plaintiff in this
action relate to the ALJ’s assessment of Plaintiff’s physical capacity, and so the Court will
limit its discussion to matters relevant to Plaintiff’s physical restrictions.
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The Guidelines are fact-based generalizations about the availability of jobs for people
of varying vocational factors, with differing degrees of exertional impairment.
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all administrative remedies, and the ALJ’s decision stands as the final agency action now
under review.
Plaintiff argues that the record does not support the finding that she can perform the
full range of sedentary work, and more specifically, that the ALJ erred by failing to afford
proper weight to the opinion of the consultative examiner, Chul Kim, M.D.
Plaintiff’s Function Report
On her Function Report completed on June 1, 2012, in connection with her
applications for disability benefits, Plaintiff stated that she did “pretty much nothing.”
She did not go anywhere, preferring to be home by herself and watch TV. She represented
that with the help of her husband, she would care for “kids on weekends when we have”
them, as well as for her dogs. She usually ate “anything quick, usually frozen,” and
cooked meals only about twice a month, again with the help of her husband. She had
difficulty sleeping and some difficulty bathing. With respect to housework, she would
“throw clothes in the washer/dryer,” and if she did do any cleaning, it would take a long
time as she had to sit down frequently. She did not renew her driver license when it
expired in 2009, because she experienced too much anxiety when she drove. She did not
shop, had no hobbies, did not engage in any social activities, and was “grouchy” because of
her pain. (Tr. 194-203.)
Medical Record
Plaintiff presented to a family clinic on October 3, 2011, with low back pain. An
MRI performed on November 10, 2011, showed mild scoliosis and no recurrent disc
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herniations. Plaintiff returned to the clinic for left shoulder pain on November 17, 2011,
at which time an x-ray of the left shoulder showed mild widening of the acromioclavicular
joint space. (Tr. 234.) On December 22, 2011, and January 5, 2012, Plaintiff received
cortisone injections on her left shoulder. (Tr. 234, 259.) On March 14, 2012, Plaintiff
underwent a distal clavicle resection (“Mumford” procedure) of her left shoulder which
she injured in a fall. (Tr. 253-54.)
The record includes treatment notes dating from April 5, 2012, from a pain clinic
where Plaintiff was seen for management of pain primarily associated with her lumbar
condition (degenerative intervertebral disc disorders). On April 5, 2012, she received a
facet joint injection for diagnostic and pain relief purposes, and on April 26, 2012, she
reported a 50% reduction in her low back pain. She reported pain in another spinal area,
however, and her prescription for Zanaflex (a muscle relaxer), which had run out the
previous week, was renewed. On September 28, 2012, her 15-day prescriptions for
Gabapentin (used to treat nerve pain) and Hydrocodon (a narcotic pain medication) were
renewed for 30 days. These prescriptions continued to be renewed on Plaintiff’s periodic
visits to the pain clinic and were among Plaintiff’s medications on the date of the
evidentiary hearing. In addition, she received nine lumbar epidural steroid injections
during this period for pain, which Plaintiff reported was mild to moderate but sometimes
severe, aggravated by physical activity, and relieved by changing positions, rest, and
medications. (Tr. 269-316.) For example, a lumbar epidural was administered on
September 25, 2013, approximately two and a half months before the hearing. The
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physician’s report stated that Plaintiff’s pain failed to respond to three months of
“conservative management” of patient education, physical therapy, and non-steroidal pain
medication, and that test results were consistent with facet pain. (Tr. 314-16.) Medical
notes during this time reported normal gait.
Meanwhile, an MRI of Plaintiff’s lumbar, cervical, and thoracic spines on July 15,
2013, showed a mild disc bulge at L3-L4, and L5-S1, with possible impingement of the left
L3 nerve root; minimal desiccation in the cervical spine; and a normal thoracic spine. An
MRI of Plaintiff’s neck on the same day showed minimal disc desiccation in the cervical
spine.
Evidentiary Hearing of December 5, 2013 (Tr. 26-49)
Plaintiff testified that she lived with her spouse and 14-year old daughter. Plaintiff
completed ninth grade, and later received her GED. She worked as an auto welder for
approximately 10 years until 2009, when she quit. Prior to that, Plaintiff worked as a
packer in a meat packing facility and as a “set-up operator” at a tool company. Plaintiff
testified that her back surgery was “not a success.” She testified that she could lift about
10 pounds, and could “sit longer than [she] could stand,” which she could do for only about
15 or 20 minutes before it became too painful. She was taking pain medications but still
experienced pain. She also reported that her legs gave out once or twice every two to three
days, causing her to fall, but she did not report this to her doctor nor did she use a cane.
Plaintiff testified that on a typical day, she would spend most of the time on the couch.
Her husband did the shopping and most of the housework and cooking. Her medications
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made her drowsy and she had to lie down at least twice a day for 30 minutes to two hours.
The VE testified that Plaintiff’s past work was classified variously as light, medium,
and semi-skilled. The ALJ asked the VE to assume a person of Plaintiff’s age, education,
and work experience, who could do sedentary work,3 but would require a sit/stand option
and would not be able to stand for more than 15 to 20 minutes at a time. The VE testified
that no jobs would be available to such an individual.
Post-hearing Evidence – Dr. Kim’s Opinion
On January 8, 2014, following a consultative examination of Plaintiff, Dr. Kim
prepared a narrative report and a check-box Medical Source Statement (“MSS”) of
Plaintiff’s physical ability to do work-related activities. In the report, Dr. Kim stated that
Plaintiff still had a prominent bone at her left shoulder, and had persistent pain across the
lower back radiating to her left leg that caused weakness and falls. Dr. Kim also stated
that Plaintiff had left shoulder and left neck pain. On examination, Plaintiff’s left
shoulder had a mild degree of limited range of motion, with pain. Bilateral flexion of the
lumbar spine to 20 degrees caused lower back pain, and Plaintiff had difficulty standing up
from sitting. Plaintiff’s pain medications included Tramadol (used to treat moderate to
severe pain) three times a day, Percocet (a narcotic used to treat severe pain) every six
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Sedentary work involves sitting for a total of six hours, and standing and walking for a
total of two hours in an eight-hour workday, lifting no more than 10 pounds at a time and
occasionally lifting or carrying lighter articles. The sitting requirement allows for normal
breaks, including lunch, at two hour intervals. The need to alternate between sitting and
standing more frequently than every two hours would erode the occupational base for a full
range of sedentary work. 20 C.F.R. § 404.1567(a); Social Security Ruling (“SSR”) 85–
15, 1985 WL 56857; and SSR 96–9p, 1996 WL 374185.
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hours as needed, and Gabapentin three times a day. (Tr. 381-85.)
On the MSS, Dr. Kim indicated that Plaintiff could lift up to 20 pounds
occasionally, 10 pounds frequently, and never more than 20 pounds; carry up to 10 pounds
occasionally and never carry more than 10 pounds; without interruption, sit for 30 minutes,
stand for 20 minutes, and walk for 15 minutes; in an eight-hour workday, sit for a total of
three hours, stand for a total of 30 minutes, and walk for a total of 30 minutes (and lying
down for the remainder of the eight-hour workday); occasionally reach overhead, handle,
finger, feel, push/pull, and operate foot pedals; frequently reach other than overhead; never
climb ladders or scaffolds, crouch or kneel; and occasionally climb stairs and ramps,
balance, and stoop. Dr. Kim opined that these limitations had lasted or would last for 12
consecutive months. (Tr. 386-93.)
ALJ’s Decision of March 13, 2014 (Tr. 10-19)
The ALJ found that Plaintiff suffered from the “severe impairment”4 of
degenerative disc disease of the lumbar spine with status post fusion. The ALJ found that
Plaintiff’s “remote history” of bilateral carpal tunnel syndrome and left shoulder pain were
not severe as they were effectively treated by post-surgical pain management, and Plaintiff
did not seek other significant treatment for either.
The ALJ determined that no impairment or combination of impairments met or
equaled the severity of one of the deemed-disabling impairments listed in the
A “severe impairment” is defined in the regulations as “any impairment or
combination of impairments which significantly limits [a claimant’s] physical or mental
ability to do basic work activities.” 20 C.F.R. § 404.1520(c).

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Commissioner’s regulations, and that while Plaintiff could not perform her past relevant
work, she retained the RFC to perform the full range of sedentary work. The ALJ found
that Plaintiff’s allegations to the contrary were not credible, despite her good work history
prior to the alleged onset date. Citing to Plaintiff’s June 1, 2012 Function Report, the ALJ
stated that Plaintiff’s daily activities were inconsistent with her allegations of disabling
limitations, as she was able “to essentially live and function independently, provide care
for her child and pet, prepare meals, and perform light household work.” The ALJ also
pointed to Plaintiff’s “minimal or conservative treatment” for her low back pain, and stated
that there was no evidence that Plaintiff’s prescribed medications were not generally
effective. He noted that physical examinations revealed that Plaintiff had a normal gait
and was able to ambulate independently, and the absence of muscle atrophy, spasms, or
weakness.
The ALJ assigned “little weight” to Dr. Kim’s opinion, finding that it was not
consistent with the objective medical evidence, Plaintiff’s history of “conservative
treatment,” the absence of neuromuscular abnormalities on physical examination, and the
lumbar spine MRI. Further, the ALJ stated that Dr. Kim’s opinion seemed to be based
primarily on Plaintiff’s subjective complaints, rather than on independent medical
findings. Applying the Guidelines (Rule 201.28 – younger individual, high school
education, semiskilled/skills not transferable), the ALJ found that Plaintiff was not
disabled.

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Arguments of the Parties
Plaintiff argues that that the ALJ erred by failing to give proper weight to Dr. Kim’s
opinion, which was the only medical opinion of record that directly addressed Plaintiff’s
ability to perform work-related tasks. Plaintiff contends that Dr. Kim’s opinion was not at
odds with any treating source—because no treating source offered an opinion on Plaintiff’s
abilities to perform in the workplace. Plaintiff further argues that the record as a whole
did not support the ALJ’s finding that Plaintiff could perform a full range of sedentary
work, and that the ALJ erred in failing to include a sit/stand option in the RFC, as well as
limitations based on Plaintiff’s carpal tunnel syndrome and shoulder injury.
Defendant responds that the ALJ properly assessed that Plaintiff’s carpal tunnel and
left shoulder conditions were not severe, as the record indicated that these conditions were
effectively treated by post-surgical pain management, and required no significant
additional treatment. Defendant argues that the ALJ gave valid reasons for finding that
Plaintiff was not fully credible,5 and that the RFC determination is supported by the
record. Defendant maintains that the ALJ did not err in assigning Dr. Kim’s opinion little
weight because Dr. Kim conducted only a single examination of Plaintiff. Because the
ALJ properly discounted Dr. Kim’s opinion of significant non-exertional limitations, the
ALJ was justified, according to Defendant, in relying on the Guidelines to determine that
Plaintiff was not disabled.
Defendant also notes Plaintiff’s failure to comply with medical instructions to stop
smoking, but the ALJ did not mention this fact, nor would this fact be relevant to the issues
in the case.
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DISCUSSION
Standard of Review and Statutory Framework
In reviewing the denial of Social Security disability benefits, a court must review
the entire administrative record to determine whether the ALJ’s findings are supported by
substantial evidence on the record as a whole. Johnson v. Astrue, 628 F.3d 991, 992 (8th
Cir. 2011) (citation omitted). The court “may not reverse . . . merely because substantial
evidence would support a contrary outcome. Substantial evidence is that which a
reasonable mind might accept as adequate to support a conclusion.” Id. (citations
omitted). A reviewing court “must consider evidence that both supports and detracts from
the ALJ’s decision. If, after review, [the court finds] it possible to draw two inconsistent
positions from the evidence and one of those positions represents the Commissioner’s
findings, [the court] must affirm the decision of the Commissioner.” Chaney v. Colvin,
812 F.3d 672, 676 (8th Cir. 2016). Put another way, a court should “disturb the ALJ’s
decision only if it falls outside the available zone of choice.” Papesh v. Colvin, 786 F.3d
1126, 1131 (8th Cir. 2015) (citation omitted).
To be entitled to benefits, a claimant must demonstrate an inability to engage in
substantial gainful activity which exists in the national economy, by reason of a medically
determinable impairment which has lasted or can be expected to last for not less than 12
months. 42 U.S.C. § 423(d)(1)(A). The Commissioner has promulgated regulations,
found at 20 C.F.R. § 404.1520, establishing a five-step sequential evaluation process to
determine disability. The Commissioner begins by deciding whether the claimant is
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engaged in substantial gainful activity. If not, the Commissioner decides whether the
claimant has a severe impairment or combination of impairments. If the impairment or
combination of impairments is severe and meets the duration requirement, the
Commissioner determines at step three whether the claimant’s impairment meets or is
equal to one of the deemed-disabling impairments listed in the Commissioner’s
regulations. If not, the Commissioner asks at step four whether the claimant has the RFC
to perform his past relevant work. “Because a claimant’s RFC is a medical question, an
ALJ’s assessment of it must be supported by some medical evidence of the claimant’s
ability to function in the workplace. However, there is no requirement that an RFC
finding be supported by a specific medical opinion.” Hensley v. Colvin, ___ F.3d, ___,
2016 WL 3878219, at *3 (8th Cir. 2016).
If the claimant cannot perform her past relevant work, the burden of proof shifts at
step five to the Commissioner to demonstrate that the claimant retains the RFC to perform
work that is available in the national economy and that is consistent with the claimant’s
vocational factors – age, education, and work experience. Halverson v. Astrue, 600 F.3d
922, 929 (8th Cir. 2010). When nonexertional limitations such as pain do not
significantly affect a claimant’s ability to perform the full range of work in a particular
category of work (medium, light, and sedentary) listed in the regulations, the ALJ may
carry this burden by referring to the Medical-Vocational Guidelines; when a claimant
cannot perform the full range of work in a particular category due to nonexertional

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impairments, the ALJ must produce testimony by a VE or other similar evidence to meet
the step five burden. Baker v. Barnhart, 457 F.3d 882, 894 (8th Cir. 2006).
Weight Afforded to Dr. Kim’s Opinion and ALJ’s RFC Assessment
The Commissioner’s regulations provide that generally more weight is to be given
to a treating physician, and to an examining source than a non-examining source. 20
C.F.R. § 404.1527(d)(1). Dr. Kim was not Plaintiff’s treating physician but he did
examine Plaintiff. The reasons given by the ALJ for discounting Dr. Kim’s opinion with
regard to Plaintiff’s physical limitations are not persuasive. The Court sees no basis to
believe that Dr. Kim did not base his opinions on the physical examination he conducted.
Furthermore, it can hardly be said that treatment for Plaintiff’s lower back pain has been
“conservative” since her lumbar surgeries, as the record shows she was administered
numerous epidural injections. And the pain medications that have been prescribed
continually were quite strong. Throughout the period after her lumbar surgeries, no
medical source suggested that Plaintiff was exaggerating her pain or malingering.
Furthermore, the ALJ’s reliance on Plaintiff’s daily activities as a basis for
discrediting her allegations is problematic. Nowhere in the record does it say that Plaintiff
cooked regularly or even that she lived independently without her husband’s help.
The Court also agrees with Plaintiff that the RFC assessment is not based on sufficient
medical evidence. Although, as noted above, there is no requirement that an RFC
assessment be supported by a specific medical opinion, Hensley, 2016 WL 3878219, at *3,

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here aside from the medical record showing periodically that Plaintiff had a normal gait,
there is scant medical evidence that Plaintiff can perform the full range of sedentary work.
In light of these issues with the ALJ’s opinion, coupled with the VE’s testimony at
the hearing that an individual with Plaintiff’s profile who required a sit/stand option to do
sedentary work would not be employable, this case comes close to being one in which a
remand with directions to award Plaintiff benefits would be appropriate. However, the
Court will take the more cautious approach of remanding the case for further proceedings.
See, e.g., Buckner v. Apfel, 213 F.3d 1006, 1011 (8th Cir. 2000) (explaining that ordinarily,
when a reviewing court concludes that a denial of disability benefits was improper, the
court, out of “abundant deference to the ALJ,” should remand the case for further
administrative proceedings; remand with instruction to award benefits is appropriate “only
if the record overwhelmingly supports such a finding”). On remand, the ALJ shall
reconsider Dr. Kim’s opinion and/or obtain the opinion of a consulting medical source on
Plaintiff’s ability to do work related activities, and if necessary, obtain the testimony of a
VE on jobs that might be available for an individual like Plaintiff, based on a new RFC
assessment.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
REVERSED and the case is REMANDED for further proceedings.

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A separate Judgment shall accompany this Memorandum and Order.

_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE

Dated this 28th day of September, 2016.

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