Jefferson v. Astrue
Filing
21
MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that the relief which Jefferson seeks in his Complaint and Brief in Support of Complaint is GRANTED. [Docs. 1 , 16 ] IT IS FURTHER ORDERED the ALJ's decision of March 18, 2010 is REVERSED and REMANDE D. IT IS FURTHER ORDERED that a Judgment of Reversal and Remand will be filed contemporaneously with this Memorandum and Order remanding this case to the Commissioner of Social Security for further consideration pursuant to 42 U.S.C. § 405(g), sentence 4. Signed by Magistrate Judge Nannette A. Baker on 10/10/12. (TRC)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
GORDON JEFFERSON,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Security,
Defendant.
Case No. 4:11-CV-921 NAB
MEMORANDUM AND ORDER
This is an action under 42 U.S.C. § 405(g) for judicial review of the Commissioner of
Social Security’s final decision denying Gordon Jefferson’s (“Jefferson”) application for benefits
under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq. and 42 U.S.C. § 1381
et seq. Jefferson alleges disability due to degenerative disc disease of the lumbar spine. (Tr.
143.) Jefferson filed a Brief in Support of Plaintiff’s Complaint. [Doc. 16]. The Commissioner
filed a Brief in Support of the Answer. [Doc. 19]. Jefferson then filed a Reply Brief in Support
of the Complaint. [Doc. 20]. The parties have consented to the jurisdiction of the undersigned
United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). [Doc. 11].
I.
PROCEDURAL HISTORY
On April 4, 2007, Jefferson applied for a Period of Disability and Supplemental Security
Income, alleging an onset date of January 12, 2006. (Tr. 114, 118.) On September 20, 2007, the
Social Security Administration denied Jefferson’s claims. (Tr. 42-45.) Jefferson filed a request
for reconsideration, which was denied on March 19, 2008. (Tr. 46, 54-57.) Jefferson then
requested a hearing in front of an administrative law judge (“ALJ”) and a hearing was held on
September 24, 2009. (Tr. 24-39, 58-59.) The ALJ issued a written opinion on March 18, 2010,
affirming the denial of benefits. (Tr. 9-23.) On March 18, 2011, the Appeals Council denied
Jefferson’s request for review. (Tr. 1-6.) The ALJ’s decision thus stands as the Commissioner’s
final decision. Jefferson then filed this appeal on May 20, 2011. (Doc. 1.)
II.
A.
ADMINISTRATIVE RECORD
Disability Application and Earnings Record
Jefferson completed a Disability Report (“Report”) on April 4, 2007. (Tr. 134.) In the
Report, Jefferson indicated that he was forty-three years old and he had not worked since
January 12, 2006. (Tr. 131, 143.) Jefferson indicated that he obtained a high school diploma in
1981 and received special training regarding painting, automotive engine repair, and building
maintenance from Job Corps in 1985. (Tr. 150.) Jefferson reported that he had worked full-time
as a general laborer for various businesses since 1985. (Tr. 135, 144.) At his last job as a
general laborer, Jefferson indicated that he laid asphalt and concrete and that the heaviest weight
that he lifted was 100 pounds and he frequently lifted 50 pounds or more. (Tr. 156.) Jefferson
also reported that at his last job he supervised three other employees. (Tr. 156.) Jefferson
indicated that his previous jobs as a general laborer also included making plastersol inks; driving
a bus for disabled people; blowing and power sweeping parking lots and decks; installing sump
pumps and waterproofing; and operating power washing equipment, street sweepers, and snow
plows. (Tr. 157-161.) In his previous jobs, Jefferson reported that he frequently lifted between
25 and 50 pounds and that the heaviest weight he lifted was between 50 and 100 pounds. (Tr.
157-161.) The earnings record from the Social Security Administration indicates that Jefferson
has earnings from 1979 to 2006. (Tr. 126.)
2
B.
Testimony Before the ALJ
On September 24, 2009, the ALJ held a hearing and heard testimony from Jefferson and
vocational expert (“VE”) Ms. Deborah Bunn-Durham.1 (Tr. 24-39.) Jefferson was represented
by counsel. (Tr. 26.)
1.
Jefferson’s Testimony
Jefferson testified that he had been using a cane since late 2007. (Tr. 27.) Jefferson
stated that his doctor prescribed the cane. (Tr. 27-28.) He claimed that the cane assisted him in
walking by taking pressure off his legs. (Tr. 31.)
Jefferson testified that he had a stimulator for pain and took medication to help him sleep.
(Tr. 28.) Jefferson also stated that his pain had decreased by half since the stimulator was put in
place. (Tr. 28.) Jefferson testified he rated his pain as between 5 and 7 on a ten point scale with
ten being the worst. (Tr. 28-29.) Jefferson stated he was not going to have surgery regarding his
disks because it, “would put [him] in a chair permanent[ly].” (Tr. 32.)
Jefferson stated that he could only walk four minutes at most before he needed to take a
break, because he will get a pain in his back and his legs would go numb. (Tr. 29.) Jefferson
also stated that he experienced pain when standing straight up. (Tr. 31.) Jefferson also testified
that he needed to recline when seated because sitting up straight caused “everything [to] go
numb all the way down to the top of [his] feet.” (Tr. 29-30.) Jefferson stated that his disc
problem caused the pain that required him to sit in a reclining position. (Tr. 30.)
Jefferson testified that standing up straight caused pain and he needed to lean forward
while standing to relieve pressure to walk. (Tr. 31.) Jefferson also testified that, if he were to
1
The administrative hearing transcript refers to the VE as Ms. Vondurum without a first name. Plaintiff’s Brief
indicates that the VE’s full name is Deborah Bunn-Durham. (Pl.’s Br. 13, n. 3.)
3
stand at a countertop or in front of a sink washing dishes, he would be able to stand two minutes
before pain would compel him to sit, due to pain in his back and legs. (Tr. 31.) Jefferson stated
that he felt pain in the front and side of his legs from his waist down to the top of his feet. (Tr.
31.)
Jefferson testified that his ability to do functional activities was impaired. (Tr. 32.)
Jefferson stated he could not perform activities around the house such as vacuuming and
sweeping because constant movement increased his pain. (Tr. 32.) Jefferson testified that he
could pick up five pound objects and carry more than five pounds. (Tr. 32-33.) Jefferson
claimed that he needed assistance in putting on his shoes because it hurt when he bent over. (Tr.
33.) He also stated that he did not take baths and used a shower chair while showering. (Tr. 33.)
Jefferson testified that he passed his time during the day watching TV. (Tr. 33) He
testified that he sat on his couch propped up at a comfortable angle while watching TV. (Tr. 34.)
Jefferson stated that he left his stimulator on constantly and needed to charge it once a week.
(Tr. 34.) Jefferson testified that he slept poorly without his medication and took occasional naps
during the day. (Tr. 34.) Finally, Jefferson testified that he drove to go to the doctor. (Tr. 3435.)
2.
Vocational Expert’s Testimony
The ALJ posed the following hypothetical to the VE:
I have a hypothetical involving a younger person with high school education and
no transferrable skills, who can perform light work. The following are
occasional: Climbing stairs and /or ramps, kneeling, crouching, balancing,
stooping, can never crawl , can never climb ladders or scaffolds, must avoid all
exposure to unprotected heights and cannot work on uneven terrain or floors as it
requires a cane to assist with ambulation. Question is whether there will be any
jobs in the national or regional economy that such a person could perform, and if
so, in what numbers?
4
(Tr. 35.) The VE testified that there the jobs of ticket seller, cashier, and gate guard were
available jobs for the individual described in the hypothetical. (Tr. 35.) The VE testified that
those jobs were sedentary and unskilled. (Tr. 35.) Next, Jefferson’s counsel inquired whether
the hypothetical individual would be able to perform those jobs with the additional limitation that
the individual would be required to sit/stand at will. (Tr. 36.) The VE responded that the
individual would still be able to perform the cashier and ticket seller jobs. (Tr. 36.) Then,
Jefferson’s counsel asked if the hypothetical individual would be able to do the remaining jobs if
the hypothetical individual had to miss up to three days or more of work each month. (Tr. 3637.) The VE testified that the absences would prevent the hypothetical individual from being
able sustain work if the absences were consistent over time. (Tr. 37.) Jefferson’s counsel next
asked would a requirement that the hypothetical individual must recline back while working be a
reasonable accommodation in the workplace.
(Tr. 37.)
The VE responded that if the
hypothetical individual has to recline so much while he worked that he couldn’t be at a work
station, but for brief periods of time, that would preclude being able to work. (Tr. 37.) The VE
stated that it would not be an accommodation, otherwise. (Tr. 38.) Jefferson’s counsel then
posed a final limitation, asking the type of impact upon the hypothetical individual’s work
activity if the individual had to be reclined more than 60 percent of the time. (Tr. 38.) The VE
responded that that final limitation would preclude work. (Tr. 38.)
C.
Medical Records
On April 13, 2000, Jefferson visited the Forest Park Hospital emergency room after a rear
end motor vehicle accident the previous day. (Tr. 208.) Jefferson reported that he had whiplash,
a headache, and lower back pain radiating to his feet. (Tr. 208.) Jefferson also reported a history
of spinal or cervical problems due to a pulled muscle in 1985. (Tr. 208.) The record notes that
5
Jefferson was able to ambulate and bear weight. (Tr. 208.) Jefferson was diagnosed with lumbar
strain. (Tr. 214.) Upon discharge, Jefferson was instructed to stay off work until April 17th,
apply warm moist heat to the injured area, and refrain from operating machinery if the
medication Norlex became sedating. (Tr. 209, 212.)
Jefferson attended a physical therapy session on April 19, 2000. (Tr. 219.) Jefferson
reported that his pain was much worse and nothing relieved his pain, even temporarily. (Tr.
219.) Jefferson attended a second physical therapy session on May 4, 2000. (Tr. 220.) Jefferson
reported that he tolerated walking, but standing increased his pain. (Tr. 220.) It was noted that
Jefferson progressed well. (Tr. 220.)
On May 30, 2000, Jefferson returned to the emergency room at Forest Park Hospital
complaining of pain to the lumbar area and pain down his right lateral thigh.
(Tr. 215.)
Jefferson reported that his pain was aggravated after lifting something at work. (Tr. 215.) He
denied feeling numbness or weakness. (Tr. 215.) The record notes that he ambulated through
the emergency room with difficulty. (Tr. 215.) An X-ray of his lumbar spine was unremarkable.
(Tr. 221.) Jefferson’s discharge instructions provided that he should continue on Motrin and
Flexeril, raise his feet 48 degrees, rest, and return if problems arise. (Tr. 214.)
On August 21, 2001, Jefferson visited the emergency room at St. Mary’s Hospital. (Tr.
318-326.) Dr. Rekha Lakshmanan diagnosed Jefferson with lower back pain. (Tr. 320.) Upon
discharge Dr. Lakshmanan instructed Jefferson to follow up with his physician, Dr. Darren
Pearson at the first available appointment. (Tr. 320.) Jefferson received further instructions not
to drive for seven hours due to medication and he received prescriptions for Vicodin and Lortab.
(Tr. 320.) Dr. Lakshmanan determined that Jefferson could return to work on August 23, 2001
with the limitation of no heavy lifting. (Tr. 322.)
6
On September 19, 2001, an MRI of Jefferson’s lumbar spine showed degenerative disc
disease at L4-L5. (Tr. 293.)
On October 1, 2001, Jefferson visited the emergency room at St. Mary’s Hospital
complaining of severe back pain radiating to his right leg. (Tr. 313.) Jefferson reported that he
could not stand very long. (Tr. 313.) Dr. Elma Cara diagnosed Jefferson with chronic back pain.
(Tr. 314.) Jefferson received prescriptions for Flexeril and Toradol. (Tr. 314.)
Jefferson received epidural steroid injections in his lumbar region on October 19, 2001
and November 5, 2001. (Tr. 298, 301.) On December 10, 2001, Jefferson visited the pain clinic
at St. Mary’s Hospital to discuss instructions regarding his upcoming discography (Tr. 291-92.)
On December 27, 2001, Dr. Richard Gahn performed a lumbar discography and direct
fluorospcopy on Jefferson. (Tr. 287.) Dr. Gahn indicated that the purpose of the procedure was
to determine the etiology of Jefferson’s low back pain. (Tr. 287.)
On January 11, 2002, Dr. Gahn performed a percutaneous decompression surgical
procedure and direct fluoroscopy on Jefferson. (Tr. 283-284.) The purpose of the procedure was
to decrease the pressure in his L3-4 and L4-5 discs to alleviate pain. (Tr. 283.) The surgery was
an outpatient surgery and Jefferson was discharged home with prescriptions of Vicodin and
Celebrex. (Tr. 284.)
On September 26, 2002, Jefferson visited the emergency room at St. Mary’s Hospital
complaining of right shoulder pain that began five days earlier while playing frisbee. (Tr. 274.)
Dr. Annu Terkonda diagnosed Jefferson with right shoulder strain. (Tr. 274.) Upon discharge,
Jefferson received prescriptions for Motrin and Roxicet and a shoulder sling. (Tr. 274.) He
received instructions to say off work for 3 days and follow-up with his primary physician. (Tr.
274, 278.) He was not given any work limitations. (Tr. 278.)
7
On January 12, 2006, Jefferson visited certified Physician Assistant Rich Schick
complaining of back pain.
(Tr. 373.)
Mr. Schick prescribed Feldene and Flexeril and
recommended that Jefferson be evaluated for orthopedic surgery at the first available
appointment. (Tr. 374.)
On February 1, 2006, Jefferson visited Dr. John Porter for a consultation, upon a request
from Dr. Anthony Cabot. (Tr. 246-250.) Jefferson reported six years of back and radiating right
leg pain.
(Tr. 246.)
Jefferson also reported that during the previous three months, he
experienced a dramatic increase in lower back and leg pain, which is tingling and burning in
nature. (Tr. 246.) Jefferson also complained that he is not comfortable in any position whether
sitting, standing, walking, or lying down. (Tr. 246.) In his physical examination of Jefferson’s
back, Dr. Porter noted that Jefferson had very limited flexion, extension, rotation, and lateral
flexion due to the pain. (Tr. 248.) Dr. Porter also noted tenderness at both the L4-5 and L5-S1
interspaces. (Tr. 248.) Dr. Porter determined that Jefferson had axial and radicular back pain,
which was discogenic in nature and that the symptoms were neuropathic. (Tr. 249.) Jefferson
indicated to Dr. Porter that he did not want to continue injections or pain management. (Tr.
250.) Therefore, Dr. Porter referred Jefferson to another doctor for surgical consultation and
treatment. (Tr. 250.)
On February 13, 2006, Jefferson visited neurosurgeon, Dr. Tariq Javed. (Tr. 223-226.)
Dr. Porter referred Jefferson to Dr. Javed for evaluation of Jefferson’s lumbar disc disease. (Tr.
223.) Dr. Javed noted that Jefferson’s motor strength was 5/5 and equal and that his gait and
station were within normal limits.
(Tr. 225.) Dr. Javed also noted that an MRI scan of
Jefferson’s lumbar spine showed the following: (1) degeneration involving the L4-5 and L5-S1
discs, (2) no evidence of lateral disc herniation at the L3-4 level accounting for the L4 radicular
8
symptoms, (3) mild bulge of the disc at L4-5 secondary to degeneration and a smaller disc
protrusion at L5-S1, and (4) epidural scar tissue behind the thecal sac of L4-5. (Tr. 225.) Dr.
Javed diagnosed Jefferson with lumbar degenerative disc disease and status post nucleoplasty
possibly at L4-5.
(Tr. 226.)
Dr. Javed determined that Jefferson’s pain was not in the
distribution of the degenerative disc disease found on the MRI scan and he cannot find a far
lateral disc at the L4-5 level which would cause his L4 symptoms. (Tr. 226.) He also opined
that Jefferson had “a considerable amount of over-magnification particularly with examining him
neurologically.” (Tr. 226.) Dr. Javed also determined that Jefferson was not the best candidate
for surgery. (Tr. 226.) Dr. Javed recommended that Jefferson follow conservative treatment
with physical therapy and injections to help with his back pain and that Jefferson seek a second
opinion.
(Tr. 226.)
Dr. Javed transcribed a letter to Dr. Porter that contained the above
information. (Tr. 231.)
On January 2, 2007 received treatment from Dr. James Harvey regarding his back pain.
(Tr. 375-76.)
Dr. Harvey determined that Jefferson had lumbosacral radiculopathy and
recommended an evaluation by a neurosurgeon. (Tr. 375.)
On January 6, 20072, Jefferson met with Dr. Vidyadhar Chitale for an initial
neurosurgical consultation. (Tr. 345.) Dr. Chitale noted that a physical examination revealed
that Jefferson demonstrated an antalgic gait and that his lumbar flexibility was reduced
secondary to the back pain. (Tr. 345.) Dr. Chitale also noted that Jefferson had difficulty raising
his own weight on the right foot and showed gastrocnemius weakness and numbness in the outer
two toes. (Tr. 345.) Dr. Chitale ordered an MRI of Jefferson’s lumbar spine for further
evaluation. (Tr. 345.)
2
The Court notes that the document cited contains a 2006 date. Based on the evidence in the record from Dr.
Chitale’s office, the Court believes that this visit occurred in 2007 and the notation in the record with the 2006 date
is a typographical error.
9
Jefferson had an MRI of his lumbar spine without contrast on January 18, 2007. (Tr.
348.) The MRI results indicate normal alignment of the lumbar vertebrae and evidence of mild
chronic degenerative disc disease at the L4-5 and L5-S1 levels where the discs appeared
desiccated. (Tr. 348.) The results also indicated no evidence of disc herniation or significant
spinal canal stenosis. (Tr. 348.)
On January 19, 2007, Jefferson visited the emergency room at Kennestone hospital with
complaints of back pain from a fall. (Tr. 394.) Dr. Lucas Lathrop diagnosed Jefferson with back
pain and chronic radiopathy. (Tr. 395.) Jefferson received a prescription for Percocet and was
told to follow up as soon as possible with Dr. Javed.
Dr. Chitale and Jefferson met again on January 24, 2007 for a follow-up neurosurgical
consultation. (Tr. 344.) Dr. Chitale noted that the MRI of the lumbar spine demonstrated
significant disc degeneration at multiple levels at L2-3, L3-4, L4-5, and L5-S1. (Tr. 344.) Dr.
Chitale also noted that there was no free disc fragment herniation at any level and that the L5-S1
shows an annular bulge with disc desiccation. (Tr. 344.) Dr. Chitale indicated that it would not
be conceivable that Jefferson would improve with surgical treatment directed toward multiple
lumbar disc degenerative disease. (Tr. 344.) Therefore, Dr. Chitale referred Jefferson to pain
management services and indicated that he hoped Jefferson would go through a dorsal column
stimulation trial, with the possibility for permanent implantation.3 (Tr. 344.)
On February 1, 2007, Jefferson visited Dr. Porter complaining of back and bilateral leg
pain. (Tr. 366.) Jefferson reported that his pain was “throbbing, burning, electric pain.” (Tr.
366.) Jefferson also reported that prolonged sitting makes both of his legs numb and he has
difficulty sleeping due to pain. (Tr. 366.) Dr. Porter determined that Jefferson had multilevel
3
A dorsal column stimulator applies electrodes to the dorsal columns of the spinal cord. Stedman’s Medical
Dictionary 1700 (27th ed. 2000).
10
degenerative disc disease with chronic axial and lumbar radicular pattern pain, no surgically
repairable lesions, and that all more conservative treatments failed. (Tr. 366.) Dr. Porter also
determined that Jefferson was a good candidate for a spinal cord stimulation test and Jefferson
agreed to undergo the procedure. (Tr. 366.)
On February 13, 2007, Jefferson visited Dr. David Gower for a new patient consultation.
(Tr. 240-243.) Jefferson reported that he had back pain that radiated to his right leg. (Tr. 240.)
Jefferson also reported that the epidural injections, physical therapy and nucleoplasty were either
not helpful or did not provide long lasting relief. (Tr. 240.) After completing a physical
evaluation, Dr. Gower noted that Jefferson had “marked difficulty straightening up” and could
not stand straight up. (Tr. 242.) Dr. Gower also noted that Jefferson sat with his back bent away
from his right side. (Tr. 242.) Dr. Gower indicated that an examination of Jefferson’s back
revealed “a very tight back with poor range of motion” and that Jefferson could only bend
forward to about 60 degrees. (Tr. 242.) Dr. Gower determined that Jefferson had leg and back
pain with an unclear etiology. (Tr. 243.) Dr. Gower ordered a myelogram4 and a CT scan. (Tr.
243.)
The myelogram and CT scan were performed on February 19, 2007. (Tr. 236-239.) On
March 6, 2007, Jefferson and Dr. Gower met regarding the test results. (Tr. 233.) Jefferson
reported that his pain was an 8 or 9 with bilateral pain in both legs. (Tr. 233.) Dr. Gower
completed a bone scan of Jefferson’s back and determined there was no disc space or facet joint
that would result in the pain described by Jefferson. (Tr. 233.) Dr. Gower noted that the
myelogram and CT scan failed to demonstrate any significant nerve root compression. (Tr. 233.)
Dr. Gower opined that Jefferson did not need surgical intervention. (Tr. 233.) Jefferson reported
4
A myelogram is a radiographic contrast study of the spinal subarachnoid space and its contents. Stedman’s
Medical Dictionary 1171 (27th ed. 2000).
11
to Dr. Gower that he would return to the pain clinic doctor and see if there was anything else that
could be done. (Tr. 233.)
Jefferson received treatment regarding his back and leg pain at The Physicians’ Pain and
Rehabilitation Specialists of Georgia in March, April, June, and August of 2007. (Tr. 366-372.)
During his March 15, 2007 visit, Jefferson indicated a high level of pain that was close to being
the worst pain. (Tr. 372.) At the April 10, 2007 visit, Jefferson reported that he was doing well
and was 50 percent better. (Tr. 368.) Jefferson reported that his pain level was 3 out 10 with 10
being the worst and that he moved around better at his June 14, 2007 visit. (Tr. 371.) During the
August 7, 2007 visit, Jefferson rated his pain level as 5 out of 10 on the pain scale with 10 being
the worst and reported no significant changes in his general health since his last visit. (Tr. 370.)
Jefferson indicated, however, that his pain affects his activity level at a rating of 9 out of 10 with
10 representing that he “can’t do anything at all.” (Tr. 370.)
On April 18, 2007, Jefferson met with Dr. Chitale for a follow-up neurosurgical
consultation. (Tr. 343.) Dr. Chitale noted that Jefferson had done extremely well with his spinal
cord stimulation trial with Dr. Porter and desired to have a permanent implantation. (Tr. 343.)
On April 27, 2007, Jefferson had surgery to permanently insert a paddle-lead Tripole dorsal
column stimulator. (Tr. 400-401.) Dr. Chitale noted that Jefferson did well postoperatively and
he instructed Jefferson to avoid all strenuous activities. (Tr. 398.)
Jefferson visited Dr. Chitale for a follow-up visit on May 16, 2007. Dr. Chitale indicated
that during the visit, Jefferson’ s dorsal column stimulator system was reprogrammed and three
programs were given to Jefferson. (Tr. 342.) Jefferson reported that his pain control was
satisfactory and adequate. (Tr. 342.)
12
On July 11, 2007, Jefferson visited Dr. Chitale for a follow-up visit. (Tr. 341.) Jefferson
reported that he was very pleased with the outcome of the surgery. (Tr. 341.) Dr. Chitale noted
that he had completed Jefferson’s disability forms for him and that Jefferson would not be able to
return to work in any type of gainful employment secondary to his neurological condition. (Tr.
341.)
On August 13, 2007, Jefferson visited Dr. Chitale for a follow-up visit. (Tr. 340.0
Jefferson indicated that the dorsal column stimulator placement “has done wonders for him.”
(Tr. 340.) Jefferson reported that he used the stimulator ‘the whole day” and does not require
any pain medication. (Tr. 340.) Jefferson also indicated that he took one pill at night. (Tr. 340.)
Dr. Chitale noted that neurologically, Jefferson did not demonstrate any motor weakness, but still
used a cane for support. (Tr. 340.) Dr. Chitale also noted that Jefferson “is not a candidate for
any job at this point secondary to his chronic disabling pain even though it seems to be helped
with the stimulator. (Tr. 340.) Dr. Chitale advised Jefferson to use the stimulator at nighttime
and continue to decrease the pain medication usage completely. (Tr. 340.) Dr. Chitale also
indicated that going forward he would only see Jefferson on an as needed basis. (Tr. 340.)
On September 17, 2007, Dr. Margaret Wilson completed a Physical Residual Functional
Capacity Assessment regarding Jefferson as part of the initial determination of his claim of
disability to the Social Security Administration. (Tr. 330-337.) Dr. Wilson indicated that
Jefferson was diagnosed with lumbar degenerative disc disease. (Tr. 330.) Based on her review
of the medical evidence of record, Dr. Wilson determined that Jefferson could occasionally lift or
carry 20 pounds; frequently lift or carry 10 pounds; stand and/or walk with normal breaks for six
hours in an eight hour workday; sit with normal breaks for six hours of an eight hour workday
and push or pull without limitation. (Tr. 331.) Dr. Wilson also determined that Jefferson could
13
occasionally climb ramps or stairs, stoop, and crouch; frequently balance, kneel, and crawl; and
never climb a ladder, rope, or scaffolds. (Tr. 332.) In the Assessment, Dr. Wilson indicated that
Jefferson did not have any manipulative, visual, communicative, or environmental limitations.
(Tr. 333-334.) Finally, Dr. Wilson opined that Jefferson was partially credible and all work
would not be precluded. (Tr. 335.)
On December 3, 2007, Jefferson visited Dr. Chitale regarding difficulty walking long
distances and wanted assistance getting a Hoveround. (Tr. 339.) Jefferson reported that he was
doing well with the stimulation and getting relief from it. (Tr. 339.) Dr. Chitale indicated that if
help for the Hoveround was available, then Jefferson would benefit from it. (Tr. 339.)
On March 18, 2008, Dr. Howard Collier, completed a Physical Residual Functional
Capacity Assessment of Jefferson. (Tr. 380-387.) Dr. Collier noted that Jefferson had a primary
diagnosis of degenerative disc disease at L4-5 and S1 and disc bulge along with secondary
diagnoses of nucleoplasty L4-5, and dorsal column stimulator. (Tr. 380.) Dr. Collier determined
that Jefferson could occasionally lift or carry 20 pounds; frequently lift or carry 10 pounds; stand
or walk with normal breaks 6 hours in an 8 hour workday; sit with normal breaks for six hours in
an eight hour workday; and push or pull without limitation except those shown for weight. (Tr.
381.) Dr. Collier also determined that Jefferson could frequently climb ramps or stairs, kneel,
crouch, and crawl; occasionally balance or stoop; and never climb ladders, ropes, or scaffolds.
(Tr. 382.) Dr. Collier indicated that Jefferson did not have manipulative, visual, communicative,
or environmental limitations. (Tr. 383-384.) Dr. Collier noted there was symptom magnification
present and Jefferson was doing well with his dorsal column stimulator. (Tr. 382.) Dr. Collier
opined that Jefferson was partially credible and his allegations were not supported by the medical
14
evidence record.
(Tr. 385.)
Dr. Collier acknowledged that the medical record shows
disagreement with his findings. (Tr. 386.)
On July 11, 2008, Jefferson went to the Emergency room at Kennestone Hospital. (Tr.
406-412.) Jefferson reported that his dog pulled him down to the floor and reinjured his back.
(Tr. 406.) Jefferson received prescriptions for Flexeril, Ibuprofen, and Percocet. (Tr. 410.) A xray of Jefferson’s lumbar spine revealed degenerative disc disease at L4-5 and L5-S1, without
any acute fractures or dislocations. (Tr. 413.)
On November 17, 2008, Jefferson visited the Physicians’ Pain Rehabilitation Specialists
of Georgia to complete a research study visit. During the visit, Jefferson indicated that his pain
level was a six and that his stimulator was working well and he could not do without the
stimulator. (Tr. 421.)
On November 2, 20095, Jefferson visited Dr. Chitale because suddenly, two weeks prior,
he began experiencing low back pain and bilateral leg pain in his hamstrings, and had difficulty
bending forward and standing on his toes. (Tr. 436.) Jefferson reported that the symptoms
scared him and he wanted them checked out, because there was no precipitating event. (Tr. 436.)
Dr. Chitale indicated that a physical examination of Jefferson’s lumbar spine showed a normal
alignment, positive tenderness and pain to palpation; moderate muscle spasms on both sides,
5
This medical record was submitted to the ALJ after the hearing, but prior to the ALJ’s decision. The ALJ did not
mention this medical record in his opinion. Jefferson submitted the report to the Appeals Council. In cases
involving the submission of supplemental evidence subsequent to the ALJ's decision, the record includes that
evidence submitted after the hearing and considered by the Appeals Council.” Bergmann v. Apfel, 207 F.3d 1065,
1068 (8th Cir. 2000) (citing Jenkins v. Apfel, 196 F.3d 922, 924 (8th Cir. 1999)). “In such a situation, “[a] court’s
role is to determine whether the ALJ’s decision ‘is supported by substantial evidence on the record as a whole,
including the new evidence submitted after the determination was made.’” Id. (citing Riley v. Shalala, 18 F.3d 619,
622 (8th Cir. 1994)). “In practice, this requires [a] court to decide how the ALJ would have weighed the new
evidence had it existed at the initial hearing.” Id. (citing Riley, 18 F.3d at 622). Thus, the appropriate inquiry is not
whether the Appeals Council erred, but whether the record as a whole supports the decision made by the ALJ. Perks
v. Astrue, No. 11-3041, 2012 WL 3168495, at *5 (8th Cir. Aug. 7, 2012) (citing Cunningham v. Apfel, 222 F.3d 496,
500 (8th Cir. 2000)).
15
decreased and painful range of motion, and positive lumbar spine root provocation. (Tr. 438.)
Dr. Chitale diagnosed Jefferson with idiopathic low back pain, lumbar degenerative disc disease,
lumbar radiculitis, lumbar herniated nucleas pulposus, and lumbar spinal stenosis. (Tr. 438.) Dr.
Chitale opined that Jefferson could occasionally lift or carry up to ten pounds, but never lift or
carry over ten pounds. (Tr. 439.) Further, Dr. Chitale recommended that Jefferson permanently
refrain from working and opined that Jefferson was totally disabled from gainful employment.
III.
ALJ DECISION
The ALJ first found that Jefferson met the insured status requirements of the Social
Security Act through December 31, 2010. (Tr. 14.) At step one, the ALJ found that Jefferson
had not engaged in substantial gainful activity since January 12, 2006. (Tr. 14.) At step two, the
ALJ determined that Jefferson suffered from the severe impairment of degenerative disc disease
of the lumbar spine. (Tr. 14.) At step three, the ALJ concluded that Jefferson’s impairment
neither met nor medically equaled a listed impairment in 20 CFR §§ 404.1520(d), 404.125,
404.1526, 416.920(d), 416.925, and 416.926. (Tr. 14.) At step four, the ALJ found that
Jefferson had the RFC to perform light work with the following limitations: (1) no more than
occasional climbing of stairs or ramps, kneeling, crouching, balancing or stooping; (2) no
crawling or climbing ladders and scaffolds; and (3) avoidance of all exposure to unprotected
heights and work on uneven terrain or floors because he required a cane for ambulation. (Tr.
15.) Because of these limitations, the ALJ found that Jefferson could not perform his past
relevant work as a general laborer. (Tr. 18.) Nonetheless, considering his age, education, work
experience, and RFC, the ALJ concluded that there were jobs that exist in significant numbers in
the national economy that Jefferson could still perform with his limitations.
16
(Tr. 18-19.)
Consequently, the ALJ found Jefferson was not disabled within the meaning of the Social
Security Act. (Tr. 19.)
IV.
LEGAL STANDARD
Under the Social Security Act, the Commissioner has established a five-step process for
determining whether a person is disabled. 20 C.F.R. §§ 416.920, 404.1529. “‘If a claimant fails
to meet the criteria at any step in the evaluation of disability, the process ends and the claimant is
determined to be not disabled.’” Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005) (quoting
Eichelberger v. Barnhart, 390 F.3d 584, 590-91 (8th Cir. 2004)). In this sequential analysis, the
claimant first cannot be engaged in “substantial gainful activity” to qualify for disability benefits.
20 C.F.R. §§ 416.920(b), 404.1520(b). Second, the claimant must have a severe impairment. 20
C.F.R. §§ 416.920(c), 404.1520(c). The Social Security Act defines “severe impairment” as
“any impairment or combination of impairments which significantly limits [claimant’s] physical
or mental ability to do basic work activities … .” Id. “The sequential evaluation process may be
terminated at step two only when the claimant’s impairment or combination of impairments
would have no more than a minimal impact on [his or] her ability to work.” Page v. Astrue, 484
F.3d 1040, 1043 (8th Cir. 2007) (quoting Caviness v. Massanari, 250 F.3d 603, 605 (8th Cir.
2001).
Third, the ALJ must determine whether the claimant has an impairment which meets or
equals one of the impairments listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d);
Part 404, Subpart P, Appendix 1. If the claimant has one of, or the medical equivalent of, these
impairments, then the claimant is per se disabled without consideration of the claimant’s age,
education, or work history. Id.
17
Fourth, the impairment must prevent claimant from doing past relevant work.6 20 C.F.R.
§§ 416.920(e), 404.1520(e). At this step, the burden rests with the claimant to establish his or
her Residual Functional Capacity (“RFC”). Steed v. Astrue, 524 F.3d 872, 874 n.3 (8th Cir.
2008). See also Eichelberger, 390 F.3d at 590-91; Masterson v. Barnhart, 363 F.3d 731, 737
(8th Cir. 2004). RFC is defined as what the claimant can do despite his or her limitations, 20
C.F.R. § 404.1545(a), and includes an assessment of physical abilities and mental impairments.
20 C.F.R. § 404.1545(b)-(e). The ALJ will review a claimant’s RFC and the physical and mental
demands of the work the claimant has done in the past. 20 C.F.R. § 404.1520(f). If it is found
that the claimant can still perform past relevant work, the claimant will not be found to be
disabled. Id.; 20 C.F.R. § 416.920(a)(4)(iv). If the claimant cannot perform past relevant work,
the analysis proceeds to Step V.
At the fifth and last step, the ALJ considers the claimant’s RFC, age, education, and work
experience to see if the claimant can make an adjustment to other work.
20 C.F.R.
§ 416.920(a)(4)(v). If it is found that the claimant cannot make an adjustment to other work, the
claimant will be found to be disabled. Id. See also 20 C.F.R. § 416.920(g). At this step, the
Commissioner bears the burden to “prove, first that the claimant retains the RFC to perform
other kinds of work, and, second that other work exists in substantial numbers in the national
economy that the claimant is able to perform.” Goff, 421 F.3d at 790; Nevland v. Apfel, 204 F.3d
853, 857 (8th Cir. 2000). The Commissioner must prove this by substantial evidence. Warner v.
Heckler, 722 F.2d 428, 431 (8th Cir. 1983).
6
“Past relevant work is work that [the claimant] has done within the past 15 years, that was
substantial gainful activity, and that lasted long enough for [the claimant] to learn how to do it.”
Mueller v. Astrue, 561 F.3d 837, 841 (8th Cir. 2009) (citing 20 C.F.R. § 404.1560(b)(1)).
18
If the claimant satisfies all of the criteria of the five-step sequential evaluation process, the ALJ
will find the claimant to be disabled. “The ultimate burden of persuasion to prove disability,
however, remains with the claimant.” Id. See also Harris v. Barnhart, 356 F.3d 926, 931 n.2
(8th Cir. 2004) (citing 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003)).
This court reviews the decision of the ALJ to determine whether the decision is supported
by “substantial evidence” in the record as a whole. See Smith v. Shalala, 31 F.3d 715, 717 (8th
Cir. 1994). “Substantial evidence is less than a preponderance but is enough that a reasonable
mind would find it adequate to support the Commissioner’s conclusion.”
Krogmeier v.
Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002). See also Cox v. Astrue, 495 F.3d 614, 617 (8th
Cir. 2007). Therefore, even if a court finds that there is a preponderance of the evidence against
the ALJ’s decision, the ALJ’s decision must be affirmed if it is supported by substantial
evidence. Clark v. Heckler, 733 F.2d 65, 68 (8th Cir. 1984). In Bland v. Bowen, 861 F.2d 533,
535 (8th Cir. 1988), the Eighth Circuit Court of Appeals held:
[t]he concept of substantial evidence is something less than the weight of the
evidence and it allows for the possibility of drawing two inconsistent conclusions,
thus it embodies a zone of choice within which the Secretary may decide to grant
or deny benefits without being subject to reversal on appeal.
As such, “[the reviewing court] may not reverse merely because substantial evidence exists for
the opposite decision.” Lacroix v. Barnhart, 465 F.3d 881, 885 (8th Cir. 2006) (quoting Johnson
v. Chater, 87 F.3d 1015, 1017 (8th Cir. 1996)). Similarly, the ALJ decision may not be reversed
because the reviewing court would have decided the case differently. Krogmeier, 294 F.3d at
1022.
It is not the job of the district court to re-weigh the evidence or review the factual record
de novo. Cox, 495 F.3d at 617; Guillams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005).
Weighing the evidence is a function of the ALJ, who is the fact-finder. Masterson v. Barnhart,
19
363 F.3d 731, 736 (8th Cir. 2004) (citing Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir. 1987).
The factual findings of the ALJ are conclusive if supported by substantial evidence. See 42
U.S.C. § 405(g). The district court must simply determine whether the quantity and quality of
evidence is enough so that a reasonable mind might find it adequate to support the ALJ’s
conclusion. Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001) (citing McKinney v. Apfel, 228
F.3d 860, 863 (8th Cir. 2000)).
To determine whether the Commissioner’s final decision is supported by substantial
evidence, the Court is required to review the administrative record as a whole and to consider:
(1) The findings of credibility made by the ALJ;
(2) The education, background, work history, and age of the claimant;
(3) The medical evidence given by the claimant’s treating physicians;
(4) The subjective complaints of pain and description of the claimant’s physical
activity and impairment;
(5) The corroboration by third parties of the claimant’s physical impairment;
(6) The testimony of vocational experts based upon proper hypothetical questions
which fairly set forth the claimant’s physical impairment; and
(7) The testimony of consulting physicians.
Brand v. Sec’y of Dept. of Health, Educ. & Welfare, 623 F.2d 523, 527 (8th Cir. 1980); Cruse v.
Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989). Additionally, an ALJ’s decision must comply
“with the relevant legal requirements.” Ford v. Astrue, 518 F.3d 979, 981 (8th Cir. 2008).
V.
DISCUSSION
Jefferson alleges three points of error. First, he asserts that the ALJ’s decision is not
supported by substantial evidence because the ALJ failed to consider Plaintiff’s steady work
record when determining Plaintiff’s credibility. (Tr. 15.) Second, he contends that ALJ failed to
20
adequately recognize and consider the Polaski factors in assessing his credibility. Finally,
Jefferson asserts that the ALJ failed to properly weigh the opinion of treating neurosurgeon Dr.
Chitale.
A.
ALJ Credibility Determination
Jefferson asserts that the ALJ’s credibility determination is not supported by substantial
evidence, because the ALJ failed to adequately recognize and consider the Polaski factors in
assessing his credibility, including his earnings record. The Commissioner contends that the
ALJ’s consideration of Plaintiff’s credibility was consistent with the Commissioner’s regulations
and policy.
“While the claimant has the burden of proving that the disability results from a medically
determinable physical or mental impairment, direct medical evidence of the cause and effect
relationship between the impairment and the degree of claimant’s subjective complaints need not
be produced.” Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). A claimant's subjective
complaints may not be disregarded solely because the objective medical evidence does not fully
support them. Id. The absence of objective medical evidence is just one factor to be considered
in evaluating the claimant’s credibility and complaints. Id. The ALJ must fully consider all of
the evidence presented relating to subjective complaints, including the claimant's prior work
record, and observations by third parties and treating and examining physicians relating to such
matters as:
(1) the claimant’s daily activities;
(2) the subjective evidence of the duration, frequency, and intensity of the
claimant’s pain;
(3) any precipitating or aggravating factors;
(4) the dosage, effectiveness, and side effects of any medication; and
21
(5) the claimant’s functional restrictions
Id. The ALJ must make express credibility determinations and set forth the inconsistencies in
the record which cause him to reject the claimant’s complaints. Guillams, 393 F.3d at 802;
Masterson, 363 F.3d at 738. “It is not enough that the record contains inconsistencies; the ALJ
must specifically demonstrate that he considered all of the evidence.” Id. (citing Butler v. Sec’y
of Health & Human Servs., 850 F.2d 425, 429 (8th Cir. 1988)). The ALJ, however, “need not
explicitly discuss each Polaski factor.” Strongson v. Barnhart, 361 F.3d 1066, 1072 (8th Cir.
2004). See also Steed, 524 F.3d at 876 (citing Lowe v. Apfel, 226 F.3d 969, 972 (8th Cir. 2000)).
The ALJ need only acknowledge and consider those factors.
Id.
Although credibility
determinations are primarily for the ALJ and not the court, the ALJ’s credibility assessment must
be based on substantial evidence. Rautio v. Bowen, 862 F.2d 176, 179 (8th Cir. 1988); Millbrook
v. Heckler, 780 F.2d 1371, 1374 (8th Cir. 1985).
In this action, the ALJ did not mention the Polaski case or all of the Polaski factors,
however, the ALJ cited the proper regulations and social security rulings. (Tr. 15.) (citing 20
C.F.R. § 404.1529 and SSR 96-4p and 96-7p). The ALJ’s discussion of Jefferson’s credibility
focused on observations by treating and examining physicians; the subjective evidence of the
duration, frequency, and intensity of Jefferson’s pain; and the effectiveness of his medication.
(Tr. 15-18.) The ALJ did not mention Jefferson’s daily activities or his prior work record.
The ALJ’s decision acknowledged that Jefferson alleged severe back pain, used a cane,
and had a stimulator permanently placed in his back to relieve the back pain. (Tr. 15.) The ALJ
noted that Jefferson testified that his pain had decreased by fifty percent with the stimulator. (Tr.
15.) The ALJ also noted Jefferson’s testimony that his pain level remains between 5 and 7 on a
22
10 point scale; his walking is limited to 2 to 4 minutes before taking a break; and he needs to
recline, because he cannot sit up straight. (Tr. 15.) The ALJ held that Jefferson’s impairment
could reasonably be expected to cause the alleged symptoms, but Jefferson’s “statements
concerning the intensity, persistence and limiting effects of those symptoms are not credible to
the extent they were inconsistent with the residual functional capacity assessment.” (Tr. 15-16.)
The ALJ relied heavily upon the opinions of Dr. Tariq Javed and Dr. David J. Gower in
his credibility assessment.
(Tr. 16-17.)
The ALJ highlighted Dr. Javed’s records, which
indicated that Dr. Javed could not find the source of Jefferson’s pain on an MRI and he believed
Jefferson magnified his symptoms. (Tr. 226.) Dr. Javed recommended that Jefferson pursue
conservative treatment and urged him to seek a second opinion. (Tr. 226.) Dr. Gower performed
a bone scan, myelogram, and CT scan on Jefferson and also could not find the source of
Jefferson’s pain. (Tr. 233.) Dr. Gower recommended that Jefferson continue using the pain
clinic. (Tr. 233.) The ALJ highlights that Jefferson’s MRIs while showing degenerative disc
disease, did not show evidence of disc hernia, significant root compression, or significant spinal
canal stenosis. (Tr. 16-17.)
The ALJ’s opinion implies that because the test results did not indicate the source of
Jefferson’s reported disabling pain that Jefferson is not credible. “Although the evidence of pain
suffered by a claimant may be of necessity subjective in nature, and therefore, difficult to
evaluate, the [ALJ] must give serious consideration to such evidence even though it is not fully
corroborated by objective examinations and tests performed on the claimant.” Northcutt v.
Califano, 581 F.2d 164, 166 (8th Cir. 1978). “While the claimant has the burden of proving that
the disability asserted results from a medically determinable physical or mental impairment,
direct medical evidence of the cause and effect relationship between a physical impairment and
23
the claimant’s subjective pain need not be produced.” Id. “Whether or not a[n] explanation for
the pain can be given, it is nevertheless possible that the claimant is suffering from disabling
pain.” Layton v. Heckler, 726 F.2d 440, 442 (8th Cir. 1984).
The Court believes that the ALJ’s credibility assessment regarding Jefferson’s subjective
pain fails to indicate the consideration of important evidence. The evidence in the record as a
whole provides strong support for Jefferson’s credibility rather than detracts from it. The
administrative record indicates that Jefferson has suffered chronic back pain due to degenerative
disc disease for several years. The MRIs and CT scans on his lumbar spine consistently confirm
the diagnosis. It is undisputed that Jefferson has a back impairment that requires treatment and
as the ALJ noted, his impairment could be reasonably expected to cause the symptoms alleged.
Jefferson’s treating and examining physicians’ treatment notes indicate that Jefferson has
consistently sought and used a variety of methods to relieve his back pain. These treatments
included a discography, nucleoplasty, epidural steroid injections, physical therapy, pain
management, and a variety of prescription medications. Jefferson reported no long term benefits
from these treatments; therefore he sought the opinion of three neurosurgeons; Dr. Javed, Dr.
Gower, and Dr. Chitale to determine if surgical intervention was an option. The doctors agreed
that Jefferson was not an appropriate candidate for surgery, but Dr. Chitale recommended the
permanent implantation of the dorsal column stimulator, which eventually provided the most
effective relief. (Tr. 226, 233, 344.) The inability to determine the source of Jefferson’s pain
does not mean the pain does not exist. See Hight v. Shalala, 986 F.2d 1242, 1244 (8th Cir. 1993)
(fact that x-rays were normal does not mean claimant did not have difficulty breathing, because
there is no evidence that normal x-rays were inconsistent with alleged breathing problems).
24
Next, Dr. Javed’s opinion of symptom magnification appears to have been given
significant weight. Dr. Javed examined Jefferson once on February 13, 2006 for a neurosurgery
consultation. Although Dr. Javed stated that he felt that Jefferson over magnified his symptoms
and was “hypersensitive” regarding his lower back pain, Dr. Javed still found that Jefferson
suffered from lumbar degeneration disc disease though the source of the lower back pain was
unclear. (Tr. 225-226.) “A back condition may affect one individual in an inconsequential way,
whereas the same condition may severely disable another person who has greater sensitivity to
pain[.]” Brand v. Secretary of Dep’t Health, Educ. and Welfare, 623 F.2d 523, 526-27) (8th Cir.
1980).
No other doctor has indicated that Jefferson was malingering or magnifying his
symptoms.7 A single comment that the claimant was hypersensitive by a physician who has only
treated him once is not sufficient evidence that Jefferson was exaggerating his pain.
The combination of the lack of objective evidence of source of the lower back pain and
Dr. Javed’s single comment that Jefferson was hypersensitive is not sufficient to detract from
Jefferson’s credibility when considered in light of the other evidence that provides support for
his credibility, including his consistent compliance with treatment over several years. See
O’Donnell v. Barnhart, 318 F.3d 811, 817 (8th Cir. 2003) (consistent diagnosis of chronic pain
coupled with long history of pain management and drug therapy was an objective medical fact
supporting claimant’s allegations of disabling pain). The ALJ’s decision is further weakened by
the fact that there is no evidence that the ALJ considered Jefferson’s prior work record. “[A]
claimant with a good work record is entitled to substantial credibility when claiming an inability
to work because of a disability.” Nunn v. Heckler, 732 F2d 645, 648 (8th Cir. 1984.) Jefferson’s
work record shows earnings every year between 1979 and 2006, the onset date of disability. (Tr.
7
Dr. Gower’s statement provided that there was no indication in the test results of a source of pain that would result
in the pain described by Jefferson. (Tr. 233.) Dr. Gower did not implicitly or explicitly state that Jefferson was
malingering.
25
126.) Jefferson worked as a general laborer. (Tr. 144.) The ALJ mentioned that Jefferson was a
laborer, but there is no evidence that he considered Jefferson’s strong work history. Again, the
ALJ is not required to discuss each Polaski factor, but he must “specifically demonstrate that he
considered all of the evidence.” Guillams, 393 F.3d at 802. There is no evidence that the ALJ
considered this important evidence.
Upon careful consideration of the record, the Court cannot say that it “weighs so heavily
against [Jefferson’s] credibility” that the ALJ would have discounted his credibility absent his
erroneous inferences and failure to consider evidence in light of the Polaski factors. See Ford v.
Astrue, 518 F.3d 979, 983 (8th Cir. 2008) (reversal and remand warranted where ALJ made
erroneous inferences regarding claimant’s credibility). Accordingly, the Court will remand this
action to the Social Security Administration for reconsideration of Jefferson’s application.
B.
Treating Physician Opinion Evidence
The Plaintiff also asserts that the ALJ erred in his evaluation of Dr. Chitale’s opinion.
The Commissioner contends that the ALJ properly discounted Dr. Chitale’s opinion, because it
was inconsistent with the record evidence as a whole and Dr. Chitale’s opinion that Jefferson
was disabled was an issue reserved for the Commissioner.
In his decision, the ALJ stated as follows:
As for the opinion evidence, I agree with the DDS residual functional capacity
assessment that the claimant is capable of performing light work with some
additional limitations. This is supported by objective clinical evidence of the
record. I disagree with Dr. Vidyadhar S. Chitale’s opinion that the claimant will
not be able to return to work in gainful employment secondary to his neurological
condition.
(Tr. 17.) The ALJ then stated that Dr. Chitale’s opinion was inconsistent with evidence in the
record that indicated that Jefferson did not show sensory or motor abnormalities, his pain control
was satisfactory and adequate, Jefferson was neurologically stable, and he had done well with a
26
stimulator. (Tr. 17.) The ALJ also noted that Dr. Chitale’s opinion was conclusory and lacked
the type of significant clinical and laboratory abnormalities expected, if Jefferson were in fact
disabled. (Tr. 17.) Finally, the ALJ mistakenly identified Dr. Chitale as the source of Dr.
Javed’s report indicating an over magnification of symptoms by Jefferson. Therefore, the ALJ
credited the opinion of a non-treating consulting physician over Dr. Chitale.
Generally, a treating physician’s opinion is given controlling weight, but is not inherently
entitled to it. Hacker v. Barnhart, 459 F.3d 934, 937 (8th Cir. 2006). A treating physician’s
opinion “does not automatically control or obviate the need to evaluate the record as a whole.”
Leckenby v. Astrue, 487 F.3d 626, 632 (8th Cir. 2007). A treating physician’s opinion will be
given controlling weight if the opinion is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the
case record. 20 C.F.R. § 404.1527(d)(2); SSR 96-2p; see also Hacker, 459 F.3d at 937. When
given controlling weight, the ALJ defers to a treating physician’s medical opinions about the
nature and severity of an applicant’s impairments, including symptoms, diagnosis and prognosis,
what an applicant is capable of doing despite the impairment, and the resulting restrictions. 20
C.F.R. 404.1527(a)(2); Ellis v. Barnhart, 392 F.3d 988, 995 (8th Cir. 2005). “The Commissioner
is encouraged to give more weight to the opinion of a specialist about medical issues related to
his or her area of specialty than the opinion of a source who is not a specialist.” Kelley v.
Callahan, 133 F.3d 583, 589 (8th Cir. 1998). “The opinion of a consulting physician who
examines the claimant once or not at all does not generally constitute substantial evidence.” Id.
“A medical source opinion that an applicant is ‘disabled’ or ‘unable to work,’ however, involves
an issue reserved for the Commissioner and therefore is not the type of ‘medical opinion’ to
27
which the Commissioner gives controlling weight.” Ellis, 392 F.3d at 994; see also 20 C.F.R.
§ 404.1527(e).
In this case, the Court agrees that the ALJ erred in apparently giving no weight to Dr.
Chitale’s opinion.
Dr. Chitale began successfully treating Jefferson in 2007.
Despite Dr.
Chitale’s treatment of Jefferson for several years and his expertise, the ALJ gave weight to Dr.
Collier, the Social Security Administration’s consulting physician. Dr. Collier did not examine
Jefferson and he also relied heavily on Dr. Javed’s notation that Jefferson magnified his
symptoms in finding Jefferson only partially credible, which the Court has previously
discounted.
(Tr. 17, 380-387.)
The ALJ also states that it’s “not clear” that Dr. Chitale
understood the definition of disability and then the ALJ infers that “it is likely that the doctor
was referring solely to an inability to perform the claimant’s past work, which is consistent with
the conclusions reached in this decision.” (Tr. 17.) “An administrative law judge may not draw
upon his own inferences from medical reports.” Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir.
2000). The Court notes that Dr. Chitale’s records stated explicitly, “Jefferson is not a candidate
for any job at this point secondary to his chronic disabling pain” and “totally disabled from
gainful employment (permanent).” (Tr. 340, 438.) (emphasis added). If the ALJ was unclear
about Dr. Chitale’s conclusions, he should have contacted Dr. Chitale for additional evidence or
clarification and for an assessment of how the impairments limited Jefferson’s ability to engage
in work related activities or ordered a consultative examination. See O’Donnell, 318 F.3d at 818
(if ALJ believed doctor’s notes and opinions were of no value despite extensive treatment
history, he was obligated to contact the doctor for additional evidence and clarification);
Nevland, 204 F.3d at 858 (ALJ should have sought opinions from claimant’s treating physicians
or ordered consultative examinations). Accordingly, the court will reverse and remand the case
28
for further development and for a re-evaluation of the opinion evidence submitted by Dr. Chitale
in this matter.
VI.
CONCLUSION
For the reasons set forth above, the Court finds that the ALJ’s credibility determination of
Jefferson and evaluation of Dr. Chitale’s opinion evidence was not based on substantial
evidence.
Therefore, the Court reverses and remands this action for further proceedings
consistent with this opinion.
Accordingly,
IT IS HEREBY ORDERED that the relief which Jefferson seeks in his Complaint and
Brief in Support of Complaint is GRANTED. [Docs. 1, 16]
IT IS FURTHER ORDERED the ALJ’s decision of March 18, 2010 is REVERSED
and REMANDED.
IT IS FURTHER ORDERED that a Judgment of Reversal and Remand will be filed
contemporaneously with this Memorandum and Order remanding this case to the Commissioner
of Social Security for further consideration pursuant to 42 U.S.C. § 405(g), sentence 4.
Dated this 10th day of October, 2012.
/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE
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