Wailes v. Colvin
Filing
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MEMORANDUM AND ORDER. (See Full Order.) IT IS HEREBY ORDERED that the decision of the Commissioner is REVERSED, and this cause is REMANDED for further proceedings. A separate Judgment in accordance with this Memorandum and Order is entered this same date. Signed by District Judge Catherine D. Perry on 3/29/2017. (CBL)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
RICHARD WAILES,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,1
Defendant.
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No. 2:16 CV 13 CDP
MEMORANDUM AND ORDER
Plaintiff Richard Wailes brings this action under 42 U.S.C. § 405(g) seeking
judicial review of the Commissioner’s final decision denying his claim for
disability insurance benefits (DIB) under Title II of the Social Security Act, 42
U.S.C. §§ 401, et seq. Because the Commissioner failed to provide sufficient
reasons to wholly disregard the opinion of Wailes’ treating physician, I will reverse
the decision and remand for further proceedings.
I. Procedural History
On August 28, 2013, the Social Security Administration denied Wailes’
April 2013 application for DIB, in which he claimed he became disabled on
August 28, 2012, because of back, neck, hand, and shoulder injuries; depression;
1
On January 20, 2017, Nancy A. Berryhill became the Acting Commissioner of Social Security.
Under Fed. R. Civ. P. 25(d), Berryhill is automatically substituted for former Acting
Commissioner Carolyn W. Colvin as defendant in this action.
dyslexia; and arthritis. At Wailes’ request, a hearing was held before an
administrative law judge (ALJ) on September 15, 2014, at which Wailes and a
vocational expert testified. On November 24, 2014, the ALJ denied Wailes’ claim
for benefits, finding the vocational expert’s opinion to support a finding that
Wailes could perform work as it exists in significant numbers in the national
economy. On January 4, 2016, the Appeals Council denied Wailes’ request for
review of the ALJ’s decision. The ALJ’s decision is thus the final decision of the
Commissioner. 42 U.S.C. § 405(g).
In this action for judicial review, Wailes claims that the ALJ’s decision is
not supported by substantial evidence on the record as a whole, arguing that the
ALJ improperly discounted his subjective complaints and failed to give sufficient
reasons to accord no weight to the opinion of his treating physician, Dr. Gessling.
Wailes further contends that the ALJ failed to include sufficient walking and
standing limitations in the residual functional capacity (RFC) assessment. For the
reasons that follow, the matter will be remanded for further proceedings.
II. Evidence Before the ALJ
A.
Wailes’ Testimony
At the hearing on September 15, 2014, Wailes testified in response to
questions posed by the ALJ and counsel.
At the time of the hearing, Wailes was fifty-one years of age. He lives in a
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house with his wife. He is a high school graduate. (Tr. 48-49.)
Wailes’ Work History Report shows that Wailes worked from 1998 to 2000
as a school custodian. From January 2002 through August 2012, he worked as a
door assembler for MidAm Building and Supplies. (Tr. 193.) Wailes testified that
he can no longer work because of problems with his back, neck, shoulders, and
hands. (Tr. 51.)
Wailes testified that he cannot carry things as before and drops things. He
cannot look down or side-to-side because of neck pain. He gets a headache if he
looks up too long. Wailes testified that his low back pain feels like a knife is being
driven into him. As to his shoulders, Wailes testified that he can hear popping
when he moves them and has a burning sensation. He has carpal tunnel in his
hands. He underwent surgery on the right hand, but continues to experience
numbness in one finger. (Tr. 51-53.)
Wailes testified that his pain worsens when he tries to do normal things,
such as gripping a wrench or mow the lawn with a riding mower. His back
becomes sore with mowing, so he takes a break for a bit, takes a pain pill, and lies
down. Wailes testified that he currently takes gabapentin and Robaxin, which help
a little. Wailes testified that he was recently prescribed new medication because
his other medication was not working. His current medication relaxes him and
puts him to sleep. (Tr. 53-55.)
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As to his exertional abilities, Wailes testified that he can walk for about
thirty minutes before feeling pain. He uses a cane every day for walking, as
advised by his doctor. He can stand for about fifteen to thirty minutes before he
must move around because of throbbing and aching in his low back. He can sit for
about fifteen to thirty minutes before needing to get up and move around. Wailes
testified that he lies down for about two hours when the pain is bad. (Tr. 56-57.)
He can lift a gallon of milk but feels pulling in his shoulders if he lifts twenty
pounds. Wailes testified that he has four bad days a week where he cannot move at
all. (Tr. 58-59.)
As to his daily activities, Wailes testified that he lies down a lot because of
his pain. (Tr. 55.) He watches television and sits outside on his deck. His
neighbors sometimes come to visit, and friends and neighbors sometimes help him
if he needs something done. (Tr. 61-62.) He tries to do laundry, but his wife
usually does the household chores. He sometimes tries to make quick and simple
meals. (Tr. 59-60.) Wailes drives every day to visit his mother. If he drives
longer distances, he stops to stretch his back. Wailes can manage his personal care
but sometimes has difficulty putting on pants or shoes because of his limited ability
to bend over. (Tr. 60-61.)
B.
Vocational Expert Testimony
Stella Doering, a vocational expert, testified at the hearing in response to
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questions posed by the ALJ and counsel.
The ALJ asked Ms. Doering to assume an individual of Wailes’ age,
education, and work history who was limited to “light exertional work with
occasional stooping, crouching, crawling, kneeling and climbing, but no ladders,
ropes or scaffolding, occasional overhead reaching, frequent fingering, handling
and grasping, the need to avoid concentrated exposure to extreme cold, vibration
and hazards.” (Tr. 63.) Ms. Doering testified that such a person could not perform
any of Wailes’ past work but could perform light work as a marking clerk, weight
recorder, and arcade attendant, with such jobs ranging in numbers from 900 in
Missouri to 200,000 nationally. Ms. Doering testified that if this person was
limited to sedentary work, there would be no jobs available. Ms. Doering also
testified that if this person missed two days of work each month or had to take
extra breaks throughout the day, no work would be available. (Tr. 63-64.)
C.
Medical Evidence
The record shows that Wailes experienced left shoulder pain in 2004 for
which he underwent an MRI that showed severe left rotator cuff strain, osseous
and cartilaginous hypertrophy about the left acromioclavicular (AC) joint, thinning
and fraying of the left glenoid labrum with moderate to severe chondromalacia of
the left humerus head, moderate subdeltoid and subacromial bursitis, moderate to
severe tenosynovitis of the left long head of the biceps tendon, and moderate left
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deltoid muscular strain. (Tr. 275.) With respect to his relevant impairments, the
record is thereafter silent until March 9, 2012, when x-rays were taken of the
thoracic spine in response to Wailes’ complaint of neck pain. The x-rays showed
no abnormalities. (Tr. 395.)
Wailes went to the emergency room at Moberly Regional Medical Center on
July 22, 2012, with complaints of having left shoulder pain for two days. He
reported waking up with pain and felt a pop when his wife pulled on his shoulder.
Moderate tenderness was noted about the shoulder, but range of motion was intact.
No tenderness was noted about the spine. X-rays of the left shoulder showed
hypertrophic change of the AC joint and lateral acromial spurring, often seen with
impingement and rotator cuff tear. Wailes was diagnosed with left shoulder
ligamentous sprain and was discharged in stable condition. He was prescribed
Naprosyn, Medrol Dosepack, and Norco upon discharge. (Tr. 386-91, 393.)
Wailes visited Dr. Heather M. Gessling on August 20, 2012, with complaints
of headaches, numbness in his arms and hands, and blurry vision. He also
complained of having pain in his neck and shoulders for about a month. It was
noted that Wailes took hydrocodone and Naproxen. Physical examination showed
decreased supraspinous strength, pain with self-impingement and axial loading,
and positive Spurling’s test with some pain. Dr. Gessling prescribed Flexeril and
Ultram for pain and ordered diagnostic tests. (Tr. 228-29.)
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X-rays of the cervical spine dated August 21showed mild cervical
spondylosis with disc space narrowing and mild osteophyte formation at the C3-4
and C4-5 levels. It was noted that flattening of the cervical curvature may be
associated with myospasm. (Tr. 232.) X-rays of the right shoulder showed
minimal hypertrophic changes of the AC articulation. (Tr. 231.)
Wailes returned to Dr. Gessling on August 24 and reported having problems
with both shoulders and a loss of function of his right arm. He continued to
complain of joint and muscle pain. Dr. Gessling referred Wailes to Dr. Timothy C.
Galbraith for shoulder pain and arm numbness, and to an orthopedist for neck pain
and headaches. (Tr. 226-27.)
Wailes visited Dr. Galbraith on August 28 and reported his bilateral shoulder
pain to be constant and at a level nine out of ten. He reported the pain to be sharp
and throbbing and radiating to the neck, upper arms, elbows, forearms, and hands.
He reported that the pain interferes with his sleep and is aggravated by strenuous
activities and activities of daily living. He reported having not obtained any relief.
He also reported having headaches and feeling fatigued and depressed. Mental
status examination was normal in all respects. Examination of the neck showed
paraspinous muscle tenderness to palpation about the cervical spine, but no
instability was shown with range of motion. Muscle strength was normal and there
was no hypertrophy. Examination of the right and left shoulders showed moderate
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tenderness to palpation about the AC joints; normal range of motion; slightly
decreased strength; and positive Hawkins test and Whipple test. Cross chest
adduction test, Speed’s test, push/pull test, and lift off test were also positive.
Examination of the elbows, forearms, and wrists were normal, but tenderness was
noted about both hands. Dr. Galbraith diagnosed Wailes with bilateral joint pain
involving the shoulder, and cervical pain. Degenerative rotator cuff tear,
displacement of cervical intervertebral disc, and bilateral carpal tunnel syndrome
were to be ruled out. Diagnostic tests were ordered. (Tr. 304-08.)
An MRI of the cervical spine dated August 29 showed central disc
protrusion with caudal extruded disc fragment at C5-6 with associated foraminal
encroachment, and left posterolateral disc protrusion and subannular tear at C4-5
with prominent left foraminal encroachment. A small caudal extruded disc
fragment was suspected at that level as well. (Tr. 279-80.) An MRI of the right
shoulder showed mild tendinosis of the subscapular tendon with minimal
tendinosis of the supraspinous tendon, and mild degenerative changes of the AC
articulation. No definite labral tear could be established. (Tr. 281.) An MRI of
the left shoulder showed minimal tendinosis in the anterior fibers of the
supraspinous tendon, mild hypertrophic changes of the AC articulation, and
minimal effusion of the subdeltoid and subacromial bursa. (Tr. 282.)
Wailes underwent EMG testing on August 30, which showed moderately
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severe distal median neuropathy, bilaterally, consistent with bilateral carpal tunnel
syndrome. There was no electrodiagnostic evidence of cervical radiculopathy.
(Tr. 272.)
Wailes returned to Dr. Galbraith on September 4 and reported that his
shoulder pain remained at a level eight or nine. He also reported continued
headaches, fatigue, and depression. Physical examination was unchanged. Upon
review of diagnostic tests and his examination, Dr. Galbraith diagnosed Wailes
with bilateral joint pain involving the shoulder, rotator cuff tendinitis, displacement
of cervical intervertebral disc without myelopathy, bilateral carpal tunnel
syndrome, and cervical pain. Treatment options were discussed, and it was
determined that Wailes would participate in physical therapy and undergo right
carpal tunnel release. Wailes was also referred to a spine surgeon. (Tr. 297-300.)
Wailes underwent carpal tunnel release of the right hand on October 2, 2012.
(Tr. 239.) He was prescribed Ultracet and Medrol Dosepak for recovery. (Tr.
292.)
Wailes visited Dr. Thomas R. Highland at Columbia Orthopaedic Group on
November 5. Dr. Highland reviewed the results of previous tests and noted Wailes
to have at least three-level degenerative disc disease with a herniated disc and
stenosis, and particularly pretty significant stenosis at the bottom level. Wailes
currently complained of worsening neck pain, headaches, radiating pain into his
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shoulders, and burning discomfort in his forearms. He rated his current pain at a
level ten. An epidural steroid injection was administered to the cervical spine,
lowering Wailes’ pain to a level eight. (Tr. 348-49.)
After carpal tunnel surgery, Wailes experienced constant numbness in his
right index finger with occasional throbbing and feelings of pressure. He visited
Dr. Iqbal Khan, a neurologist, on November 15, who suspected median neuropathy
with possible regional complex pain syndrome of the right hand. Dr. Khan also
noted weakness in the right and left APB muscles, and mild weakness in the right
opponens pollicis muscle. (Tr. 266-68, 291.) An EMG performed that same date
showed severe right-sided distal median mononeuropathy associated with active
denervation and significantly reduced recruitment. (Tr. 270.) Dr. Khan ordered
further MRI testing of the wrist and discussed with Wailes the possibility of taking
Neurontin. Wailes refused, however, stating that he could currently tolerate the
symptoms and wanted to avoid taking medication. (Tr. 268.)
Between September 6 and November 8, 2012, Wailes participated in seven
physical therapy sessions for bilateral shoulder pain. Throughout the course of his
therapy, Wailes’ muscle strength and range of motion improved, but he continued
to experience pain at a level ten out of ten. Wailes was given a home exercise
program at discharge but was given a poor prognosis. (Tr. 244-63.)
An MRI of the right wrist dated November 27 showed edematous changes
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along the flexor retinaculumn and median nerve associated with recent surgery.
There was no definite finding of tenosynovitis. Neuritis of other etiology could not
be excluded. (Tr. 283.)
Wailes returned to Dr. Highland on December 18 and reported the previous
steroid injection helped him for about three weeks. He did not want to undergo
additional injections and reported that he wanted surgical intervention. (Tr. 350.)
Wailes was admitted to Boone Hospital Center on January 17, 2013, to
undergo surgery on his cervical spine. (Tr. 326-27.) His relevant medical history
was noted upon admission, including that he had received a cervical epidural
steroid injection in November that provided limited relief for a week or two, and
that he had decided in December to undergo surgery to resolve his symptoms of
neck and upper extremity pain. He reported that he experienced pain in his upper
back and lower back at a level between eight and ten. It was also noted that Wailes
experienced depression but took no medication for the condition. Wailes’ current
medications were Ultram, Aleve, and Tylenol. Physical examination of the
cervical spine showed moderate to marked pain and tenderness about the
suboccipital region with associated pain and tenderness about the paracervical
region, scapulothoracic region, and supraspinatous and middle trapezius muscle
region. Limited range of motion was also noted. Examination of the lumbar spine
showed limited range of motion and moderate pain and tenderness with palpation
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from L1 to S1. Straight leg raising was negative, but hamstring tightness was
noted. Wailes had no difficulty walking on his heels and toes but reported
increased pain in the L1-2 region when walking on his toes. (Tr. 318-24.) Wailes
underwent anterior cervical discectomy and interbody fusion at the C5-6 level, and
an anterior cervical discectomy, osteophytectomy, and interbody fusion at the C3-4
and C4-5 levels that same date and obtained significant improvement. He was
discharged on January 18 with instructions to lift no more than fifty pounds and to
continue with isometric exercises. No sitting restrictions were imposed. He was
given no prescription medication but was instructed to take Tylenol as needed.
(Tr. 314-17.)
Wailes’ wife called Dr. Highland on January 29 and reported that Wailes
continued to have pain in the cervical spine region. She reported that he
experienced vomiting with his pain medication the night before, which caused
increased neck pain and suspected muscle spasm. Dr. Highland prescribed
Flexeril. (Tr. 368.)
Wailes visited Dr. Highland on March 11, 2013, and reported continued
numbness in his right thumb. He also reported continued neck pain and stated that
his symptoms had not improved much, although he no longer had headaches. He
reported that he was doing some walking and exercising. X-rays showed good
initial healing of the cervical fusion at all levels, and Dr. Highland advised Wailes
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that he should consider returning to work. Wailes responded that he continues to
be limited and has low back problems. Another appointment was scheduled to
address these problems. In the meanwhile, Dr. Highland wrote that Wailes could
not return to work at that time. (Tr. 369, 375.)
Wailes returned to Dr. Highland on March 26 and reported that he had
surgery for a work injury sustained in 1983 and has had low back pain since. He
reported his low back pain to be increasing with some pain radiating down his
thighs. Wailes reported that the pain increased with walking and affected his sleep.
Examination showed normal reflexes, strength, and sensation. Wailes had full
range of motion about the hips but with groin pain on the left. Wailes reported
having some groin pain if he walks a lot. Straight leg raising was negative. X-rays
of the lumbar spine showed severe disc space collapse at L4-5, bone on bone,
severe degenerative disease. Dr. Highland also noted related scoliosis measuring
seventeen degrees. Wailes told Dr. Highland that he was not interested in
treatment options and would rather live with the pain. Dr. Highland recommended
that Wailes perform a light duty job and suggested vocational rehabilitation. Dr.
Highland wrote a note stating that Wailes could not return to work involving lifting
doors, and that this would be a permanent restriction. In a separate note, Dr.
Highland wrote that Wailes could not return to work at that time and would be off
work permanently. (Tr. 370, 374.)
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In a letter addressed to MidAm Building Supply dated March 26, Dr.
Highland wrote that Wailes could not return to his job as a door assembler and was
permanently restricted to no frequent bending, lifting, and stooping; no lifting more
than fifteen pounds; and no prolonged standing. (Tr. 373.)
On August 5, 2013, Dr. Highland reported to disability determinations that
Wailes had a normal gait and could stand/walk for six hours during a work day;
could frequently lift and carry ten pounds, and occasionally lift and carry twenty
pounds; and should never bend at the waist or perform stoop-like movements. (Tr.
376.)
On August 8, Wailes underwent a consultative physical therapy evaluation
for disability determinations. He reported having back pain, neck pain, hand pain
and numbness, and shoulder stiffness. He reported his pain to currently be at a
level four. He reported his pain to be aggravated by prolonged sitting, repetitive
bending, and standing too long. To relieve the pain, he lies down in bed and does
nothing for a few days. Wailes reported that he takes Tylenol and cannot afford
any other medication. Physical therapist Jennifer Cushman noted Wailes to be
using a straight cane. Examination showed Wailes to have slightly limited range
of motion about the shoulders, elbows, hips, and knees. He could fully extend his
hands but could not make a tight fist with his right hand because of the decreased
flexion of the second finger. Wailes had diminished strength about his upper
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extremities. Wailes had significant limited range of motion about his cervical
spine and lumbar spine. Some muscle weakness was noted about the lower
extremities. Wailes demonstrated decreased hip extension on the right with
ambulating. It was noted that Wailes exhibited only fair effort during a majority of
the tests. Ms. Cushman observed Wailes to sit without discomfort and with proper
posture for up to forty minutes. She concluded that Wailes would not be able to
perform lifting and carrying duties in the workplace because of his inability to
bend past forty-five degrees and his mild gait deviation. She opined that he could
walk short distances on level surfaces. She further opined that Wailes may have
difficulty handling objects because of right index finger numbness and weakness.
(Tr. 377-80.)
Wailes visited Dr. Gessling on October 29, 2013, and complained of back
pain and depressive disorder. It was noted that he was there for potential
disability. His past medical history was noted. Examination showed him to be in
no acute distress. He was healthy appearing and well developed. He was
observed to walk with a cane. Psychiatric and mental status examination was
normal in all respects. Musculoskeletal examination showed normal motor
strength and tone, and neurological exam showed normal gait and station. Dr.
Gessling diagnosed Wailes with cervicalgia and prescribed gabapentin. She also
diagnosed him with depressive disorder – noting that he was learning about mood
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disorders – and prescribed Celexa. Wailes was instructed to return in two weeks.
(Tr. 416-18.) Dr. Gessling completed a Mental Medical Source Statement that
same date wherein she opined that Wailes was not significantly limited in any area
of understanding and memory, sustained concentration and persistence, social
interaction, and adaptation. (Tr. 403-04.)
Wailes returned to Dr. Gessling on November 19 and reported having neck
pain, depressive disorder, hypoxemia, and disturbed sleep. He reported not
obtaining much relief with gabapentin. Dr. Gessling noted that Wailes submitted
his disability paperwork but had received no decision yet. Examination was
normal in all respects. Dr. Gessling observed Wailes to ambulate normally. There
was no indication that he used a cane. Gabapentin was adjusted, and Wailes was
instructed to stop taking Celexa. Flexeril was prescribed to help with sleep. Dr.
Gessling instructed Wailes to return in one month. (Tr. 413-15.)
Wailes next visited Dr. Gessling on August 18, 2014, with complaints of
continued back pain and cervical radiculopathy, and he asked for something to help
with his breathing. It was noted that he needed disability paperwork to be
completed. Examination was normal in all respects, except he was noted to have
expiratory wheezing. Dr. Gessling noted Wailes to ambulate normally; there was
no indication that he used a cane. Dr. Gessling prescribed gabapentin and Robaxin
for lumbar pain. Wailes was given Tudorza for COPD and given instruction
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regarding saline breathing treatments at home. No follow up appointment was
made or suggested. (Tr. 410-12.)
On that same date, August 18, Dr. Gessling completed a Physical Medical
Source Statement wherein she reported Wailes’ diagnoses to be cervical spinal
stenosis-status post fusion, and lumbar herniated disc, with such impairments
shown by back pain, leg pain, neck pain, and cervical radiculopathy. She also
reported that Wailes experiences numbness in his fingers. She reported that he can
sit in a chair normally and does not use a cane. Medical treatment was noted to be
gabapentin, Flexeril, and cervical fusion. Dr. Gessling opined that Wailes could
frequently lift and carry up to ten pounds but should never lift or carry twenty
pounds or more. She opined that he could occasionally balance; should rarely
stoop; and should never twist, crouch, crawl, or climb. She further opined that
Wailes should rarely reach, handle, finger, and feel with his upper extremities. Dr.
Gessling opined that Wailes could sit for twenty minutes at a time for a total of six
hours during an eight-hour work day; stand for twenty minutes at a time for a total
of less than two hours during an eight-hour work day; and would need to shift
positions at will between sitting, standing, and walking. Dr. Gessling further
opined that Wailes would need to take an unscheduled ten-minute work break
every hour during the day because of pain, numbness, and paresthesia. She
reported that Wailes needed to use a cane because of his pain. Dr. Gessling
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reported that Wailes experienced bad days with his impairments and would miss
work more than four days each month. She also opined that Wailes would be off
task about five percent of the workday but could perform low stress work. (Tr.
406-08.)
III. The ALJ’s Decision
The ALJ found Wailes to meet the requirements of the Social Security Act
through December 31, 2017, and that he had not engaged in substantial gainful
activity since August 28, 2012, the alleged onset date of disability. The ALJ found
Wailes’ degenerative disc disease of the lumbar spine, status post remote surgery;
degenerative disc disease of the cervical spine, status post discectomy and fusion in
January 2013; and bilateral carpal tunnel syndrome to be severe impairments, but
that they did not meet or medically equal a listed impairment in 20 C.F.R. Part 404,
Subpart P, Appendix 1. (Tr. 14-15.) The ALJ found Wailes to have the RFC to
perform light work, “with occasional stooping, kneeling, crouching, crawling, and
climbing (but no ladders, ropes, or scaffolding); occasional reaching overhead;
frequently fingering, handling, and grasping; and a need to avoid concentrated
exposure to extreme cold, vibration, and hazards.” (Tr. 15.) The ALJ found
Wailes’ RFC to prevent him from performing his past relevant work. Considering
Wailes’ RFC and his age, education, and work experience, the ALJ found
vocational expert testimony to support a conclusion that Wailes could perform
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other work as it exists in significant numbers in the national economy, and
specifically as a marking clerk, weight recorder, and arcade attendant. The ALJ
therefore found Wailes not to be disabled at any time from August 28, 2012,
through the date of the decision. (Tr. 20-21.)
IV. Discussion
To be eligible for DIB under the Social Security Act, Wailes must prove that
he is disabled. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001); Baker
v. Secretary of Health & Human Servs., 955 F.2d 552, 555 (8th Cir. 1992). The
Social Security Act defines disability as the "inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months." 42 U.S.C. §
423(d)(1)(A). An individual will be declared disabled "only if his physical or
mental impairment or impairments are of such severity that he is not only unable to
do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in
the national economy." 42 U.S.C. § 423(d)(2)(A).
To determine whether a claimant is disabled, the Commissioner engages in a
five-step evaluation process. See 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482
U.S. 137, 140-42 (1987). The Commissioner begins by deciding whether the
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claimant is engaged in substantial gainful activity. If the claimant is working,
disability benefits are denied. Next, the Commissioner decides whether the
claimant has a “severe” impairment or combination of impairments, meaning that
which significantly limits his ability to do basic work activities. If the claimant's
impairment(s) is not severe, then he is not disabled. The Commissioner then
determines whether claimant's impairment(s) meets or equals one of the
impairments listed in 20 C.F.R., Part 404, Subpart P, Appendix 1. If claimant's
impairment(s) is equivalent to one of the listed impairments, he is conclusively
disabled. At the fourth step, the Commissioner establishes whether the claimant
can perform his past relevant work. If so, the claimant is not disabled. Finally, the
Commissioner evaluates various factors to determine whether the claimant is
capable of performing any other work in the economy. If not, the claimant is
declared disabled and becomes entitled to disability benefits.
I must affirm the Commissioner’s decision if it is supported by substantial
evidence on the record as a whole. 42 U.S.C. § 405(g); Richardson v. Perales, 402
U.S. 389, 401 (1971); Estes v. Barnhart, 275 F.3d 722, 724 (8th Cir. 2002).
Substantial evidence is less than a preponderance but enough that a reasonable
person would find it adequate to support the conclusion. Johnson v. Apfel, 240
F.3d 1145, 1147 (8th Cir. 2001). Determining whether there is substantial
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evidence requires scrutinizing analysis. Coleman v. Astrue, 498 F.3d 767, 770 (8th
Cir. 2007).
To determine whether the Commissioner's decision is supported by
substantial evidence on the record as a whole, I must review the entire
administrative record and consider:
1.
The credibility findings made by the ALJ.
2.
The plaintiff’s vocational factors.
3.
The medical evidence from treating and consulting physicians.
4.
The plaintiff’s subjective complaints relating to exertional and
non-exertional activities and impairments.
5.
Any corroboration by third parties of the plaintiff’s
impairments.
6.
The testimony of vocational experts when required which is
based upon a proper hypothetical question which sets forth the
claimant's impairment.
Stewart v. Secretary of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir.
1992) (internal citations omitted). I must consider evidence which supports the
Commissioner's decision as well as any evidence which fairly detracts from the
decision. McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010). If, after
reviewing the entire record, it is possible to draw two inconsistent positions and the
Commissioner has adopted one of those positions, I must affirm the
Commissioner’s decision. Anderson v. Astrue, 696 F.3d 790, 793 (8th Cir. 2012).
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I may not reverse the Commissioner’s decision merely because substantial
evidence could also support a contrary outcome. McNamara, 590 F.3d at 610.
Wailes claims that the ALJ’s decision is not supported by substantial
evidence because the ALJ improperly discredited his complaints of pain and failed
to provide sufficient reasons to accord no weight to the opinion of his treating
physician, Dr. Gessling. Wailes also contends that the ALJ’s RFC assessment
failed to include sufficient limitations regarding his ability to stand and walk.
A.
Credibility Determination
When determining a claimant’s RFC, the ALJ must evaluate the credibility
of the claimant’s subjective complaints. Wagner v. Astrue, 499 F.3d 842, 851 (8th
Cir. 2007); Tellez v. Barnhart, 403 F.3d 953, 957 (8th Cir. 2005). In so doing, the
ALJ must consider all evidence relating thereto, including the claimant’s prior
work record and third party observations as to the claimant's daily activities; the
duration, frequency and intensity of the symptoms; any precipitating and
aggravating factors; the dosage, effectiveness and side effects of medication; and
any functional restrictions. Halverson v. Astrue, 600 F.3d 922, 931 (8th Cir.
2010); Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984) (subsequent history
omitted). When rejecting a claimant's subjective complaints, the ALJ must make
an express credibility determination detailing her reasons for discrediting the
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testimony. Renstrom v. Astrue, 680 F.3d 1057, 1066 (8th Cir. 2012); Cline v.
Sullivan, 939 F.2d 560, 565 (8th Cir. 1991).
Here, the ALJ cited numerous inconsistencies in the record to support her
determination that Wailes’ subjective complaints were not entirely credible.
Because the ALJ’s findings are supported by substantial evidence on the record as
a whole, I must defer to her determination.
First, the ALJ noted the objective medical evidence of record not to support
Wailes’ complaints of disabling pain. The ALJ noted diagnostic testing to show
degenerative disease of the spine for which he underwent surgery, but that
subsequent physical examinations were essentially normal in all respects, with
normal reflexes, ambulation, strength, tone, gait and station, and full range of
motion about the hips. To the extent the physical therapy consultative examination
showed limited range of motion, the ALJ noted the examiner to observe that
Wailes gave only fair effort during the exam. An ALJ may make a factual
determination that a claimant’s subjective complaints of pain are not credible in
light of objective medical evidence to the contrary. Gonzales v. Barnhart, 465
F.3d 890, 895 (8th Cir. 2006).
The ALJ further noted Wailes’ daily activities to be inconsistent with his
complaints of disabling symptoms. The ALJ specifically noted Wailes’ Function
Report and his wife’s Third Party Report to show that he mows the lawn, performs
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household repairs, cleans, performs household chores such as vacuuming and
laundry, drives, shops for groceries, takes care of pets, watches television, and
provides for his own personal care. Because these acts are inconsistent with
subjective complaints of disabling pain, the ALJ did not err in her consideration of
Wailes’ daily activities. Medhaug v. Astrue, 578 F.3d 805, 817 (8th Cir. 2009).
To the extent Wailes contends that the ALJ failed to consider that it takes him
longer to perform these activities and must rest afterward, I note that the ALJ
assessed Wailes’ credibility upon her review of the record a whole, including all of
Wailes’ reported activities. Where such review shows a claimant not to be as
limited as his testimony would suggest, the ALJ does not err in discrediting the
testimony. See Jones v. Astrue, 619 F.3d 963, 975 (8th Cir. 2010); see also
Johnson v. Chater, 87 F.3d 1015, 1018 (8th Cir. 1996) (ALJ not required to believe
all assertions regarding limitations in daily activities). In addition, given the
numerous other inconsistencies in the record from which the ALJ considered
Wailes’ credibility to be lacking, it cannot be said that the ALJ unduly relied on
Wailes’ daily activities in making the credibility determination. Substantial
evidence supports the ALJ’s conclusions regarding Wailes’ daily activities, and I
defer to those findings.
The ALJ also found Wailes’ infrequent and routine treatment to be
inconsistent with disabling pain. This finding is likewise supported by substantial
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evidence. After his January 2013 surgery, Wailes visited his surgeon for follow up
in March 2013 and not thereafter. He returned to his treating physician, Dr.
Gessling, twice during the fall of 2013, but it was noted that his visit was in
relation to his seeking disability. Only gabapentin was prescribed for pain. He did
not seek or obtain any additional treatment until August 2014, when he returned to
Dr. Gessling for disability paperwork. Gabapentin was again prescribed for pain,
as well as a muscle relaxant. The failure to pursue regular treatment is a basis
upon which to discount a claimant’s subjective complaints of pain. Edwards v.
Barnhart, 314 F.3d 964, 967 (8th Cir. 2003). Because it is within the province of
an ALJ to discount claims of disabling pain when the claimant fails to seek
ameliorative treatment, id. at 967-68, the ALJ did not err in this regard.
Finally, Wailes claims that the ALJ erred when she considered his failure to
attend a physical therapy appointment in September 2012 as a basis to discredit his
subjective complaints. I agree that the failure to attend one session does not
provide a basis in itself to discredit Wailes’ subjective complaints. However, the
ALJ did not rely solely upon this finding in discrediting Wailes’ complaints.
Rather, the ALJ considered the entire record, including the medical evidence,
Wailes’ testimony, observations of third parties and health care providers, daily
activities, and the frequency and effectiveness of treatment, and identified
numerous inconsistencies upon which she found Wailes’ complaints not to be
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credible. Because these inconsistencies are supported by substantial evidence on
the record as a whole, the ALJ’s isolated statement regarding the one missed
physical therapy session does not provide a sufficient basis for me to disturb the
ALJ’s credibility determination.
Accordingly, in a manner consistent with and as required by Polaski, the
ALJ considered Wailes’ subjective complaints on the basis of the entire record and
set out numerous inconsistencies that detracted from his credibility. Because the
ALJ’s determination not to credit Wailes’ subjective complaints is supported by
good reasons and substantial evidence, I must defer to this determination.
Renstrom, 680 F.3d at 1065; Goff v. Barnhart, 421 F.3d 785, 793 (8th Cir. 2005);
Vester v. Barnhart, 416 F.3d 886, 889 (8th Cir. 2005).
B.
Dr. Gessling’s Opinion
The ALJ determined to accord no weight to the August 2014 opinion of
Wailes’ treating physician, Dr. Gessling, finding that the opinion appeared to be
based on Wailes’ subjective reports, was inconsistent with her own treatment
notes, and was inconsistent with the weight of the medical evidence of record.
Because these reasons provide an insufficient basis upon which to wholly disregard
the opinion of a treating physician, I will remand the matter for further
consideration.
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An ALJ should not ordinarily disregard the opinion of a treating physician.
Papesh v. Colvin, 786 F.3d 1126, 1132 (8th Cir. 2015). She may do so, however,
“where other medical assessments are supported by better or more thorough
medical evidence, or where a treating physician renders inconsistent opinions that
undermine the credibility of such opinions.” Id. While the reasons articulated by
the ALJ here are potential bases to give Dr. Gessling’s opinion less than
controlling weight, and indeed limited weight, see id. at 1131-32, they are
insufficient to give absolutely no weight to the opinion.
Accordingly, I will remand the matter to the Commissioner to reevaluate the
weight given to Dr. Gessling’s opinion evidence. While the ALJ may reach the
same conclusion upon remand, it must be based upon her review of the record and
application of the relevant factors in determining what weight to accord opinion
evidence. I cannot undergo an independent review of the record myself to find
reasons to uphold the ALJ’s decision.
It is a well-settled principle of administrative law that a
reviewing court may not uphold an agency decision based on reasons
not articulated by the agency itself in its decision. In other words, a
reviewing court cannot search the record to find other grounds to
support the decision. A court must consider the agency's rationale for
its decision, and if that rationale is inadequate or improper the court
must reverse and remand for the agency to consider whether to pursue
a new rationale for its decision or perhaps to change its decision.
Mayo v. Schiltgen, 921 F.2d 177, 179 (8th Cir. 1990) (internal citations and
footnote omitted).
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Given the ALJ’s improper analysis regarding the medical opinion evidence
of record, I will not address Wailes’ final claim that the medical evidence supports
additional standing and walking limitations that the ALJ should have included in
the RFC assessment. If necessary, the ALJ may revisit this RFC finding upon
remand after proper review of the medical opinion evidence.
Accordingly,
IT IS HEREBY ORDERED that the decision of the Commissioner is
REVERSED, and this cause is REMANDED for further proceedings.
A separate Judgment in accordance with this Memorandum and Order is
entered this same date.
____________________________________
CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE
Dated this 29th day of March, 2017.
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