Drinnin v. Colvin
MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and remanded for an award of benefits for the period from February 24, 2005 through July 31, 2009. A separate judgment in accordance with this Memorandum and Order will be entered this same date.. Signed by District Judge Carol E. Jackson on 1/9/15. (KKS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
LINDA K. DRINNIN,
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Case No. 4:13-CV-2061 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court for review of an adverse ruling by the Social
I. Procedural History
On October 2, 2006, plaintiff Linda Drinnin filed an application for disability
insurance benefits, Title II, 42 U.S.C. §§ 401 et seq., with an alleged onset date of
February 24, 2005. (Tr. 78-83). She listed her disabling conditions as residual pain
in her neck, right arm, and right hand following a neck fusion operation in 2005 and
carpal tunnel syndrome. She stated that she was unable to work because the pain
limited her ability to sit, stand, or walk for more than short periods of time, kept her
from lifting anything heavy, and impaired her concentration and memory.
15). After plaintiff’s applications were denied on initial consideration (Tr. 47-53), she
requested a hearing from an Administrative Law Judge (ALJ). (Tr. 4-5).
Plaintiff and counsel appeared for a hearing on January 24, 2008. (Tr. 23-42).
The ALJ issued a decision denying plaintiff’s applications on July 16, 2008. (Tr. 9-22).
The Appeals Council denied plaintiff’s request for review on December 3, 2010. (Tr.
1-3). Plaintiff sought review in this court, Drinnin v. Astrue, 4:11-CV-243 (CEJ), and
on September 10, 2012, the court remanded the matter, based upon a determination
that the ALJ improperly relied on the opinion of a non-medical source. [Doc. #16].
On October 15, 2012, the Appeals Council remanded the matter to the ALJ. (Tr.
397). The Council noted that plaintiff was found disabled as of August 1, 2009 -based on a subsequent application filed on August 3, 2010 -- and instructed the ALJ
to consider the additional evidence submitted with the subsequent claim. The Appeals
Council noted that the ALJ might wish to obtain the testimony of a medical expert to
address the issue of onset of disability prior to August 1, 2009.
Plaintiff and counsel appeared for a second hearing on February 6, 2013. (Tr.
339-55). The ALJ again denied plaintiff’s application in a decision issued on June 18,
2013. (Tr. 320-38). The ALJ’s second decision stands as the final decision of the
commissioner regarding disability prior to August 1, 2009.
II. Summary of Prior Medical Evidence
On February 25, 2005, plaintiff was admitted to St. Anthony’s Medical Center
with complaints of bilateral upper extremity numbness, tingling, pain, and weakness.
She had been painting a wall when she felt weakness in her legs. She fell and hit her
An MRI of the spine showed severe degenerative joint disease at C5-C6,
osteophytes, disk complex impinging the anterior thecal sac, and significant
neuroforaminal stenosis. The following day, Charles A. Wetherington, M.D., performed
a cervical discectomy, nerve root decompression, and fusion at C4-C5, and C5-C6.
On March 8, 2005, plaintiff followed up with Dr. Wetherington. She appeared
to be doing much better following her surgery, with good strength in her arms.
However, she continued to have hyperpathic1 pain in her hands that was reduced only
with Darvocet2 and Neurontin.3 (Tr. 189). Plaintiff attended physical therapy in April
and May 2005. After 12 sessions, she reported improvement in pain and range of
motion but still experienced numbness, tingling, and sensitivity to ice and vibration.
On June 21, 2005, Dr. Wetherington noted that plaintiff’s hyperpathic pain was
limited to her middle fingers, but it continued to wax and wane. (Tr. 187). She also
had “a fair amount of discomfort” in her neck. Her attempt to return to work failed due
to decreased tactile sense in her hands. She continued to take 300 mg. of Neurontin,
three times a day, and used 4 to 6 Darvocet each day. In September 2005, Dr.
Wetherington noted that plaintiff’s hyperpathic pain continued and opined that “carpal
tunnel syndrome on top of her spinal cord injury [might be] diminishing her overall
recovery of her central cord syndrome.” (Tr. 186). A nerve conduction study showed
findings consistent with bilateral mild carpal tunnel syndrome and a right C-7 nerve
root lesion. (Tr. 140). In December 2005, Dr. Wetherington noted that plaintiff had
increased neck discomfort and was having difficulty turning pages in a book and
separating sheets of paper. (Tr. 184). CT scans showed the presence of a possible
Hyperpathia is an exaggerated subjective response to painful stimuli, with a
continuing sensation of pain after the stimulation has ceased. Stedman’s Med. Dict.
853 (27th ed. 2000).
Darvocet is a centrally acting narcotic analgesic agent indicated for relief from
mild to moderate pain. It can produce dependence. See Phys. Desk Ref. 3497 (60th
Neurontin is sometimes used to treat neuropathy. http://www.ncbi.nlm.nih.
gov/pubmedhealth/PMH0000940/(last visited on Nov. 4, 2014).
pseudarthrosis4 at C5-C6, which Dr. Wetherington opined could be the cause of
plaintiff’s generalized neck pain. (Tr. 183). In April 2006, she continued to have some
neck pain and worsening pain in her hands. (Tr. 182).
Dr. Wetherington performed a carpal tunnel release on plaintiff’s right hand on
July 5, 2006. (Tr. 155-56). On September 21, 2006, plaintiff told Dr. Wetherington
that she had no improvement in her hand. (Tr. 181). She attended two scheduled
physical therapy sessions. (Tr. 228-29). Despite good effort and a home treatment
program, she reported no change in her symptoms and continued to experience
tightness and sensitivity in her wrist and thumb.
She showed some increase in
strength in her right hand.
On October 2, 2006, plaintiff saw Chad Shelton, M.D., of Pain Management
Services. She reported some improvement of her pain since undergoing carpal tunnel
surgery in July 2006, but she still had significant allodynia5 throughout her fingertips.
Dr. Shelton administered a trigger point steroid injection to plaintiff’s right wrist and
gave her Lidoderm patches. (Tr. 191-95). On May 9, 2007, plaintiff returned to Dr.
Shelton, complaining of constant moderate pain in her neck, hand, and arm. (Tr. 26667).
She told Dr. Shelton that the injection brought significant improvement in
muscular pain in her hand, but she continued to have diffuse burning and tingling pain,
with hyperesthesia,6 allodynia, and occasional spasm.
She had significant cold
Pseudarthrosis is a is a new, false joint arising at the site of an ununited
fracture. Stedman’s Med. Dict. 1469 (27th ed. 2000).
A condition in which normally nonpainful stimuli evoke pain. Stedman’s Med.
Dict. 48 (27th ed. 2000).
An abnormal acuteness of sensitivity to touch, pain or other sensory stimuli.
Stedman’s Med. Dict. 849 (27th ed. 2000).
sensitivity and pain that radiated into her forearm with light touch. With respect to her
neck, she had “some neck pain but [was] overall doing well from a surgical
standpoint.” Pain medications gave her some symptomatic control.
Plaintiff underwent pain management treatment with Nehalkumar Modh, M.D.,
from April 2008 through June 2008, for treatment of pain in her neck and arms,
especially her right arm and hand. (Tr. 311-19). Dr. Modh noted the presence of
allodynia and causalgia7 in her right arm from her bicep to her fingertips, and
decreased cervical range of motion.
She reported minimal improvement with
III. Additional Evidence Before the ALJ
A. 2010 Application Documents
Plaintiff completed a Function Report on September 4, 2010. (Tr. 513-24). She
stated that she got up in the morning to help her son get ready for school. She then
rested on the couch until her pain and dizziness subsided. She took a shower and, if
she felt well enough, did light housework.
She met her son’s school bus in the
afternoon, helped him with homework, and perhaps prepared a light meal in the
microwave or crockpot. She no longer cooked family meals due to pain in her hands
and dizziness upon standing. She could do light house work and some laundry, but her
husband handled most household chores. She stated that she helped care for her son
by getting out his clothes, getting his cereal, turning on his shower and tucking him
into bed. She also helped him with his homework.
Persistent severe burning pain, usually following an injury to a peripheral nerve
or brachial plexus, accompanied by trophic changes. Stedman’s Med. Dict. 303 (27th
Plaintiff, who is right-hand dominant, explained that her ability to dress and
manage her personal hygiene were affected by her inability to use her right hand. For
instance, she avoided wearing tops with buttons or snaps and shoes that had to be
tied. Due to her dizziness, she did not bathe unless someone was home. She was able
to drive short distances of 10 to 15 miles alone and could shop for food and clothes.
She had the mental, but not the physical, capacity to pay bills and manage bank
accounts. She could not manage cash, however, because nerve damage made it hard
for her to handle bills and coins and her pain medications made it hard for her to
concentrate on counting. The only exercise she did was swimming. She visited at
home with family members.
She had difficulties with lifting, bending, standing,
remembering things, following instructions and using her hands. She explained that
she could sit without head support for about 10 minutes. She experienced pain with
standing, walking, and especially reaching. She could walk a block or less before she
needed to rest for about 10 or 15 minutes. When she was pain-free, she could follow
instructions very well, but she did not handle stress or changes in routine well.
B. February 6, 2013 Hearing Testimony
Plaintiff testified at the second hearing that she worked as a bank supervisor
from 1987 until 2005. She left her job because she “woke up one day injured and .
. . couldn’t go to work” after “breaking her neck” while doing housework. (Tr. 343).
She underwent cervical fusion in February 2005 and had carpal tunnel release surgery
on her right arm in June 2007.
The ALJ found that plaintiff did not circle the word “sitting” in the list of
difficulties. The court’s copy of the document is faint, but there appears to be a partial
circle around “sitting.”
Plaintiff’s husband Samuel Drinnin also testified. (Tr. 346-51). He stated that
when plaintiff got up in the morning, she took her medications and, when she was able
to, took a shower. She tried to make sure the children got off to school every day.
She then rested for a while before trying to do housework, including sweeping,
mopping, cleaning the bathroom, and laundry. On a good day, she could work for an
hour before she needed to take a break. Three or four days a week, however, she was
unable to do much more than rest. Mr. Drinnin testified that he left for work at 7:30
in the morning and came home at lunch time two or three days a week to check on his
wife. Often, he found her in bed or lying on the couch; sometimes, she was in tears
from the pain.
Mr. Drinnin testified that after plaintiff’s initial injury and neck surgery, the pain
in her hand subsided somewhat. The surgeon, Dr. Wetherington, told Mr. Drinnin that
plaintiff had sustained permanent injury to her spinal cord and that, while she might
have some improvement in functioning, she would never be normal again.
experienced excruciating pain and was unable to hold a fork or pencil.
Dolores E. Gonzalez, M. Ed., a vocational expert, testified about the employment
opportunities for a hypothetical person with plaintiff’s level of education and past work
experience, with the ability to lift ten pounds occasionally and less than ten pounds
frequently; stand and walk for two hours out of eight and sit for six hours out of eight.
In addition, the hypothetical individual could occasionally climb stairs and ramps; could
occasionally reach with her right hand; and should avoid concentrated exposure to
hazards and unprotected heights. Such an individual was precluded from performing
plaintiff’s past work but would be able to perform sedentary work, such as a call-out
operator and surveillance system monitor, both of which provided a sit-stand option.
If the individual were also limited to less than occasional use of her hands for fine
manipulation, she would be precluded from job as a call-out operator but could still
work as a surveillance system monitor. An individual who also had to lie down during
the work day would be precluded from all employment.
C. New Medical Evidence
Between April 2009 and June 2010, Solomon Noguera, M.D., treated plaintiff for
complaints of dysmetabolic syndrome X, back pain, elevated liver enzymes,
hypertension, high cholesterol, depression, and anxiety. (Tr. 529-684). Plaintiff was
seen every three months for medication review and evaluation of her conditions.
On April 16, 2009, Dr. Modh ordered radiologic studies of plaintiff’s cervical spine
to evaluate her complaints of pain in both arms, persisting since neck surgery in
February 2005. (Tr. 715-16). The findings indicated possible mild impingements in
the cervical region but there were no abnormalities in alignment and no significant
changes since an examination completed in September 2005.
Plaintiff returned Dr. Wetherington on July 16, 2009, having last seen him in
September 2006. (Tr. 717). She reported that she had undergone multiple injections
and treatments for pain in her right arm and neck. She complained of continuing pain
with hypersensitivity of the right arm, emanating from the wrist into the upper arm.
She was taking several medications for the treatment of pain, including Neurontin,
Methadone,9 Vicodin,10 Cymbalta11 and Meloxicam.12 On examination, plaintiff had
good strength overall with the exception of weakness in the intrinsic muscles of both
hands. She had decreased sensation on the right side with patchy, altered, and
decreased sensation in the right hand. Nerve conduction studies were consistent with
a right C5-C6 neuritis. (Tr. 722). An MRI of the cervical spine disclosed posterior disc
protrusions and osteophytes which had become larger since a cervical spine CT
completed in March 2007. (Tr. 723-24). On October 6, 2009, plaintiff complained to
Dr. Wetherington of a burning sensation that generally radiated from her forearm into
her fingers on her right hand, but sometimes radiated up the arm as well. In addition,
she had generalized neck pain. Dr. Wetherington proposed that plaintiff undergo nerve
root blocks. (Tr. 725).
On November 17, 2009, plaintiff began pain management treatment with Steven
Grandberg, M.D. (Tr. 644-45). She described progressively worsening pain in her
neck with radiation down her right arm. She also experienced significant allodynia,
causing pain when she was touched or wore jewelry on her right hand. Medication,
Methadone is used to relieve moderate to severe pain that has not been
relieved by non-narcotic pain relievers. http://www.nlm.nih.gov/medlineplus/druginfo/
meds/a682134.html (last visited on March 9, 2011).
Vicodin is a narcotic analgesic indicated for relief of moderate to moderately
severe pain. Dependence or tolerance may occur. See Phys. Desk. Ref. 530-31 (60th
Cymbalta, or Duloxetine, is used to treat depression and generalized anxiety
disorder; pain and tingling caused by diabetic neuropathy and fibromyalgia.
www.nlm.nih.gov/medlineplus/druginfo/meds (last visited on Oct. 27, 2009).
Meloxicam is a nonsteroidal anti-inflammatory used to relieve pain, tenderness,
swelling, and stiffness caused by osteoarthritis and rheumatoid arthritis. It can also
be prescribed to treat ankylosing arthritis. http://www.nlm.nih.gov/medline
plus/druginfo/meds/a601242.html (last visited on Nov. 4, 2014).
physical therapy, and epidural steroid injections failed to help.
performed a nerve root steroid injection at that time. (Tr. 649). On December 9,
2009, plaintiff reported that her pain and sensitivity continued without relief.
addition, she had lost fingernails on her right hand. (Tr. 650-52). Dr. Grandberg
performed a stellate ganglion nerve block. On January 6, 2010, plaintiff again reported
that she received no relief from the procedure. She received partial relief from her
medications which included Meloxicam, Methadone, Neurontin, and Norco.13
Grandberg’s assessments included cervical post-laminectomy syndrome, cervical
radicular pain, and possible complex regional pain syndrome. (Tr. 646-48).
On February 23, 2010, plaintiff reported to Dr. Wetherington that the injections
provided some relief from neck pain but did not address her arm pain. (Tr. 726). Dr.
Wetherington proposed a trial of a spinal cord stimulator to treat the pain in her right
arm, “which is mostly due to her central cord, spinal cord injury.”
On February 24, 2010, plaintiff reported to Dr. Grandberg that she obtained
some relief with procedures and medication. Nonetheless, she continued to experience
severe pain in the neck, right arm, and hand. (Tr. 657-59). On March 24, 2010, Dr.
Grandberg performed another nerve root injection, noting that plaintiff had obtained
three to four weeks of good pain relief following the last such injection. Plaintiff was
assessed with cervical post-laminectomy syndrome, adjacent segment disease at C3C4, cervical radicular pain, and a component of complex regional pain syndrome. (Tr.
658, 660-63). On April 14, 2010, plaintiff reported greater pain relief than from prior
injections. (Tr. 664). On May 12, 2010, plaintiff underwent a translaminar cervical
Norco is a combination of hydrocodone and acetominophen. See Phys. Desk.
Ref. 3188 (63rd ed. 2009).
epidural steroid injection; she received a prescription for Percocet. (Tr. 667-69). She
subsequently reported that she received no relief from the treatment and, on May 25,
2010, underwent the procedure again. Dilaudid14 was substituted for the Perocet,
which plaintiff could not tolerate. (Tr. 672-74, 675-76).
On May 26, 2010, plaintiff reported to Dr. Noguera that she had palpitations,
concerns about her blood pressure, a lump on her right leg, and had lost finger nails
on her right hand. (Tr. 613). On June 22, 2010, plaintiff reported to Dr. Granberg that
her pain was severe and constant, describing the pain as shooting, throbbing,
miserable and agonizing. (Tr. 676-79). She could not tolerate the Dilaudid or Percocet
and reported that Methadone caused changes in her mental status. Dr. Grandberg
performed another steroid injection. (Tr. 680-81). On July 7, 2010, plaintiff reported
that she had received partial relief from the injection. She was given a prescription for
MS Contin.15 (Tr. 682-84). On September 1, 2010, she reported that she had a little
relief, but the MS Contin caused nausea, so she was returned to Methadone. (Tr. 68688). On October 1, 2010, she complained of dizziness and low blood pressure. She
continued to experience constant pain. (Tr. 689-91).
On October 15, 2010, a Physical Residual Functional Capacity Assessment
(PRFCA) was completed by Jean Diemer, M.D. (Tr. 692-97). Dr. Diemer concluded
that plaintiff could occasionally lift or carry 10 pounds, frequently lift or carry less than
10 pounds, stand or walk for less than 2 hours in an 8-hour workday, and sit less than
6 hours in an 8-hour workday. She could occasionally climb ramps or stairs, balance,
Dilaudid is a hydrogenated ketone of morphine indicated for management of
pain. Phys. Desk. Ref. 2873-74 (65th ed. 2011).
MS Contin is a brand name for morphine.
stoop, crouch or crawl. She was limited in reaching with her right arm in all directions.
Dr. Diemer stated that the medical and other evidence were consistent and supported
plaintiff’s allegations regarding her limitations. She consistently sought treatment and
followed recommendations, had multiple injections, and required strong narcotic
medications. Dr. Diemer concluded that a work capacity assessment for less than
sustained sedentary work was reasonable given plaintiff’s persistent pain.
On March 7, 2013, Dr. Wetherington wrote a letter stating:
Mrs. Drinnin sustained a spinal cord injury/central cord syndrome on
February 26, 2005. The following day, she underwent urgent cervical
spine surgery . . . She subsequently underwent hand surgery for carpal
tunnel syndrome that may have been contributing to her continued
symptoms. The patient has difficulty with hyperpathic pain in her hands
as well as decrease in two-point discrimination and sensory loss. She
attempted to return to work after her recovery period but was unable due
to continued symptoms related to her spinal cord injury.
I feel that she is unable to perform her regular duties of her job. She has
chronic cervical pain, and a decrease in general functionality of her hands
due to hyperpathic pain/sensory loss. She needs time (30 minutes three
times a day) during the day to lay down and/or alter her position to help
relieve her neck pain. I do not feel that she can sit for 6 hours per day,
stand for 2 hours per day or lift greater than 15 pounds regularly.
Therefore I believe that she had a permanent disabling injury that began
on February 26, 2005.
IV. The ALJ’s Decision
In the decision issued on June 18, 2013, the ALJ made the following findings:
Plaintiff met the insured status requirements of the Social Security Act
through March 31, 2011.
Plaintiff did not engage in substantial gainful activity between her alleged
onset date, February 24, 2005, and July 31, 2009.
Through July 31, 2009, plaintiff had the following severe impairments:
residuals of right carpal tunnel release and cervical laminectomy with
Through July 31, 2009, plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity
of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Through July 31, 2009, plaintiff had the residual functional capacity to
perform sedentary work as defined in 20 C.F.R. § 404.1567(a). She
could carry ten pounds of weight occasionally, less than ten pounds
frequently, could stand/walk at least two hours total in an eight-hour day,
and sit for at least six hours in an eight-hour day. She had additional
postural limitations that are not at issue here.
Plaintiff was not able to perform any past relevant work.
Plaintiff was 39 years old, which is defined as a younger individual, on the
alleged onset date.
Plaintiff has at least a high school education and is able to communicate
Transferability of job skills is not material because using the MedicalVocational Rules as a framework supports a finding of “not disabled”
whether or not plaintiff has transferable job skills.
Through July 31, 2009, considering plaintiff’s age, education, work
experience, and residual functional capacity, there were jobs that existed
in significant numbers in the national economy that plaintiff could have
Plaintiff was not under a disability within the meaning of the Social
Security Act at any time from February 24, 2005 through July 31, 2009.
V. Legal Standards
The Court must affirm the Commissioner’s decision “if the decision is not based
on legal error and if there is substantial evidence in the record as a whole to support
the conclusion that the claimant was not disabled.” Long v. Chater, 108 F.3d 185, 187
(8th Cir. 1997). “Substantial evidence is less than a preponderance, but enough so
that a reasonable mind might find it adequate to support the conclusion.” Estes v.
Barnhart, 275 F.3d 722, 724 (8th Cir. 2002) (quoting Johnson v. Apfel, 240 F.3d 1145,
1147 (8th Cir. 2001)). If, after reviewing the record, the Court finds it possible to
draw two inconsistent positions from the evidence and one of those positions
represents the Commissioner’s findings, the Court must affirm the decision of the
Commissioner. Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011) (quotations and
To be entitled to disability benefits, a claimant must prove she is unable to
perform any substantial gainful activity due to a medically determinable physical or
mental impairment that would either result in death or which has lasted or could be
expected to last for at least twelve continuous months. 42 U.S.C. § 423(a)(1)(D),
(d)(1)(A); Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009). The Commissioner
has established a five-step process for determining whether a person is disabled. See
20 C.F.R. § 404.1520; Moore v. Astrue, 572 F.3d 520, 523 (8th Cir. 2009). “Each step
in the disability determination entails a separate analysis and legal standard.” Lacroix
v. Barnhart, 465 F.3d 881, 888 n.3 (8th Cir. 2006).
Steps one through three require the claimant to prove (1) she is not currently
engaged in substantial gainful activity, (2) she suffers from a severe impairment, and
(3) her disability meets or equals a listed impairment. Pate-Fires, 564 F.3d at 942.
If the claimant does not suffer from a listed impairment or its equivalent, the
Commissioner’s analysis proceeds to steps four and five. Id.
“Prior to step four, the ALJ must assess the claimant’s residual functioning
capacity (‘RFC’), which is the most a claimant can do despite her limitations.” Moore,
572 F.3d at 523 (citing 20 C.F.R. § 404.1545(a)(1)).
assessment of the extent to which an individual’s
“RFC is an administrative
impairment(s), including any related symptoms, such as pain, may cause physical or
mental limitations or restrictions that may affect his or her capacity to do work-related
physical and mental activities.” Social Security Ruling (SSR) 96-8p, 1996 WL 374184,
*2. “[A] claimant’s RFC [is] based on all relevant evidence, including the medical
records, observations by treating physicians and others, and an individual’s own
description of his limitations.”
Moore, 572 F.3d at 523 (quotation and citation
In determining a claimant’s RFC, the ALJ must evaluate the claimant’s credibility.
Wagner v. Astrue, 499 F.3d 842, 851 (8th Cir. 2007); Pearsall v. Massanari, 274 F.3d
1211, 1217 (8th Cir. 2002). This evaluation requires that the ALJ consider “(1) the
claimant’s daily activities; (2) the duration, intensity, and frequency of the pain; (3)
the precipitating and aggravating factors; (4) the dosage, effectiveness, and side
effects of medication; (5) any functional restrictions; (6) the claimant’s work history;
and (7) the absence of objective medical evidence to support the claimant’s
complaints.” Buckner v. Astrue, 646 F.3d 549, 558 (8th Cir. 2011) (quotation and
“Although ‘an ALJ may not discount a claimant’s allegations of
disabling pain solely because the objective medical evidence does not fully support
them,’ the ALJ may find that these allegations are not credible ‘if there are
inconsistencies in the evidence as a whole.’” Id. (quoting Goff v. Barnhart, 421 F.3d
785, 792 (8th Cir. 2005)). After considering the seven factors, the ALJ must make
express credibility determinations and set forth the inconsistencies in the record which
caused the ALJ to reject the claimant’s complaints. Singh v. Apfel, 222 F.3d 448, 452
(8th Cir. 2000); Beckley v. Apfel, 152 F.3d 1056, 1059 (8th Cir. 1998).
At step four, the ALJ determines whether a claimant can return to her past
relevant work, “review[ing] [the claimant’s] [RFC] and the physical and mental
demands of the work [claimant has] done in the past.” 20 C.F.R. § 404.1520(e). The
burden at step four remains with the claimant to prove her RFC and establish that she
cannot return to her past relevant work. Moore, 572 F.3d at 523; accord Dukes v.
Barnhart, 436 F.3d 923, 928 (8th Cir. 2006); Vandenboom v. Barnhart, 421 F.3d 745,
750 (8th Cir. 2005).
If the ALJ holds at step four of the process that a claimant cannot return to past
relevant work, the burden shifts at step five to the Commissioner to establish that the
claimant maintains the RFC to perform a significant number of jobs within the national
economy. Banks v. Massanari, 258 F.3d 820, 824 (8th Cir. 2001). See also 20 C.F.R.
If the claimant is prevented by her impairment from doing any other work, the
ALJ will find the claimant to be disabled.
Plaintiff argues that the ALJ’s RFC determination is not properly supported by
medical evidence, that the ALJ improperly substituted his lay opinion for the opinions
of Drs. Diemer and Wetherington, and failed to cite the portions of Samuel Drinnin’s
testimony that supported her complaints.
She asks the Court to reverse the ALJ’s
determination and award benefits for the period from February 24, 2005, through July
A claimant’s RFC is “the most a claimant can still do despite his or her physical
or mental limitations.” Martise v. Astrue, 641 F.3d 909, 923 (8th Cir. 2011) (internal
quotations, alteration and citations omitted). “The ALJ bears the primary responsibility
for determining a claimant’s RFC and because RFC is a medical question, some medical
evidence must support the determination of the claimant’s RFC.”
The ALJ should obtain medical evidence that addresses the claimant’s
“ability to function in the workplace.” Lauer v. Apfel, 245 F.3d 700, 704 (8th Cir. 2001)
(quoting Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000)). “However, the burden
of persuasion to prove disability and demonstrate RFC remains on the claimant.” Id.
Even though the RFC assessment draws from medical sources for support, it is
ultimately an administrative determination reserved to the Commissioner. Cox v.
Astrue, 495 F.3d 614, 619 (8th Cir. 2007) (citing 20 C.F.R. §§ 416.927(e)(2), 416.946
(2006)). “Because the social security disability hearing is non-adversarial, however,
the ALJ’s duty to develop the record exists independent of the claimant’s burden in this
case.” Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004).
A. Opinions of Dr. Wetherington and Dr. Diemer
In concluding that plaintiff had the RFC to perform sedentary work, the ALJ
rejected the opinions of Drs. Diemer and Wetherington that plaintiff was unable to sit
for six hours in an eight-hour workday.
Dr. Diemer, the agency consultant, opined that plaintiff could not perform
sedentary work, based on a finding that she could not sit for six hours a day due to
persistent pain. Although the ALJ gave substantial weight to Dr. Diemer’s opinion in
all other respects, he concluded Dr. Diemer “probably accidentally” checked the box
indicating that plaintiff could sit for less than six hours a day, asserting that there was
“no anatomical basis to limit sitting as the result of plaintiff’s severe impairments.” (Tr.
328). The ALJ’s conclusion that Dr. Diemer made a mistake is illogical: Sedentary
work involves “lifting no more than 10 pounds at a time and occasionally lifting or
carrying articles like docket files, ledgers, and small tools” and “sitting, [though] a
certain amount of walking and standing is often necessary in carrying out job duties.”
20 C.F.R. § 404.1567(a). Dr. Diemer found that plaintiff had the capacity to lift up to
10 pounds, satisfying the weight requirement for performing sedentary work. Thus,
the basis for her conclusion that plaintiff could not perform sedentary work had to be
her inability to sit for at least 6 hours a day. The ALJ improperly discounted Dr.
Diemer’s finding that plaintiff suffered from persistent pain that precluded sitting.
Dr. Wetherington was a treating physician. Generally, a treating physician’s
opinion is given more weight than other sources in a disability proceeding. Anderson
v. Astrue, 696 F.3d 790, 793 (8th Cir. 2012); (citing 20 C.F.R. § 404.1527(c)(2)).
Indeed, when the treating physician’s opinion is supported by proper medical testing,
and is not inconsistent with other substantial evidence in the record, the ALJ must give
the opinion controlling weight. Id. “However, [a]n ALJ may discount or even disregard
the opinion of a treating physician 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.” Wildman v.
Astrue, 596 F.3d 959, 964 (8th Cir. 2010) (alteration in original) (internal quotation
omitted). Ultimately, the ALJ must “give good reasons” to explain the weight given the
treating physician’s opinion. 20 C.F.R. § 404.1527(c)(2). An ALJ may not substitute
his own opinions for the opinions of medical professionals. Ness v. Sullivan, 904 F.2d
432, 435 (8th Cir. 1990) (ALJ erred in substituting his opinion that plaintiff did not
seem depressed at hearing for doctor’s assessment of plaintiff’s mental health); see
also Pate-Fires v. Astrue, 564 F.3d 935, 946-47 (8th Cir. 2009) (ALJs may not “play
doctor”); Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996) (“ALJs must not succumb
to the temptation to play doctor and make their own independent medical findings.”).
The ALJ rejected Dr. Wetherington’s conclusion that plaintiff could not sit for six
hours a day and needed to lie down three times a day, again stating “[t]here is no
anatomical basis for any limitations on the ability to sit from a neck surgery and
minimal residuals from a carpal tunnel surgery.”
The ALJ improperly
substituted his opinion and made independent medical findings.
In rejecting Dr. Wetherington’s medical source statement, the ALJ asserted that
plaintiff “stated twice in writing that her impairments did not limit her ability to sit in
any way.” (Tr. 330). This assertion overstates the facts in the record. The ALJ relied
on Function Reports completed on October 31, 2006, and September 4, 2010. (Tr.
In the 2006 Function Report, plaintiff failed to circle sitting as an ability
affected by her condition. However, her Disability Report completed on October 11,
2006, stated that plaintiff was “[v]ery limited in her ability to sit, stand, or walk for
more than short periods of time.” (Tr. 108). At the 2008 hearing, she testified that
she could not sit longer than 10 or 15 minutes unless she was in a chair with a high
back so that she could rest her head. (Tr. 33). With respect to the September 2010
Function Report, on the same page the ALJ cites, plaintiff stated that she can only sit
without head support for about 10 minutes. (Tr. 518).
The ALJ discredited Dr. Wetherington’s opinion because he never documented
any limitations on plaintiff’s capacity to sit, stand, or walk.
Wetherington was not asked to assess plaintiff’s capacity to work until 2013 and the
absence of such opinions in his earlier treatment notes cannot be used as substantial
evidence that she is not disabled. Pate-Fires, 564 F.3d at 943; Hutsell v. Massanari,
259 F.3d 707, 712 (8th Cir. 2001) (“A treating doctor’s silence on the claimant’s work
capacity does not constitute substantial evidence supporting an ALJ’s functional
capacity determination when the doctor was not asked to express an opinion on the
matter. . .”).
The ALJ also stated that he gave less weight to Dr. Wetherington’s 2013 opinion
because he had last seen plaintiff in 2010 and because the statement was “back-dated”
to 2005, even though he first treated plaintiff in 2006.16 It is wholly reasonable to
decrease the weight given to a physician’s opinion when it is based on stale information
or appears to be speculative. That is not the situation her, however. Dr. Wetherington
cited as the basis for his opinion plaintiff’s initial 2005 spinal cord injury and her
continued symptoms despite surgical intervention and subsequent treatment. His
treatment records are wholly consistent with his 2013 opinion:
After her initial
surgery, plaintiff continued to complain of hyperpathic pain in her hands and decreased
tactile sensation. Dr. Wetherington performed carpal tunnel surgery but this too failed
to improve plaintiff’s condition. Plaintiff also had “a fair amount of discomfort” in her
neck, and Dr. Wetherington noted the presence of a possible pseudarthrosis at C5-C6,
which could be the cause of plaintiff’s generalized neck pain. (Tr. 183). When plaintiff
returned to see Dr. Wetherington in July 2009, she told him that she still had pain in
her neck and pain with hypersensitivity in her right arm, despite multiple injections
and narcotic medications. (Tr. 717).
Dr. Wetherington’s opinion is supported by other evidence in the record. As set
out in some detail above, following her carpal tunnel surgery in July 2006, plaintiff
participated in physical therapy and sought treatment from two pain management
This second assertion is factually incorrect: Dr. Wetherington performed the
cervical fusion surgery on February 26, 2005. (Tr. 169-71).
Despite trigger point injections and medication, she continued to
experience allodynia and causalgia.
2. Testimony of Samuel Drinnin
The ALJ described the testimony of plaintiff’s husband as follows:
The claimant’s husband testified . . . that . . . during the day, the
claimant would get up, take a shower, get dressed, and do some
housework, including sweeping, mopping, laundry, bathroom cleaning
[and] some cooking. He testified that the claimant would have to take
a break after completing some tasks before going on to another. He
stated that claimant would help her children get ready for school and
make sure they got on the bus. The claimant’s husband testified that the
claimant did have some improvement in her pain after her neck surgery.
He stated that the pain in her hands subsided.
Tr. 329. The ALJ omitted Mr. Drinnin’s testimony that plaintiff’s condition varied and
that on bad days she didn’t do much except sleep. “Bad days” occurred three or four
days a week; sometimes, plaintiff had an entire week of such days. (Tr. 348). While
plaintiff generally made sure the children got to school, there were some mornings she
could not get up. With respect to the impact of her 2005 surgery, Mr. Drinnin testified
that the pain in her hand subsided somewhat, but she still experienced excruciating
pain when holding a fork or a pencil. (Tr. 351).
The ALJ improperly substituted his opinion for that of the physicians, improperly
failed to give Dr. Wetherington’s opinion controlling weight, and selectively considered
the testimony of plaintiff’s husband regarding her limitations. Furthermore, he failed
to follow the Appeals Council’s suggestion that he obtain the testimony of a medical
expert to address the issue of onset of disability before August 1, 2009. The Court
finds that the ALJ’s determination that plaintiff retained the RFC to perform sedentary
work is not based on medical evidence in the record. Indeed, the medical evidence
uniformly indicates that plaintiff has not been able to engage in employment since her
initial injury on February 24, 2005. After careful review of the record, and having
given due deference to the ALJ’s findings, the court sees see no reason to prolong this
case any further. Reversal and remand for an immediate award of benefits is the
appropriate remedy where the record overwhelmingly supports a finding of disability.
Pate-Fires, 564 F.3d at 947 (citing Taylor v. Chater, 118 F.3d 1274, 1279 (8th Cir.
1997), Parsons v. Heckler, 739 F.2d 1334, 1341 (8th Cir. 1984)). The clear weight of
the evidence fully supports a determination plaintiff is disabled within the meaning of
the Social Security Act and is entitled to benefits as of February 24, 2005. Accordingly,
this matter will be remanded to the Social Security Commissioner for an award of
For the reasons discussed above, the Court finds that the Commissioner’s
decision is not supported by substantial evidence in the record as a whole.
IT IS HEREBY ORDERED that the decision of the Commissioner is reversed
and remanded for an award of benefits for the period from February 24, 2005 through
July 31, 2009.
A separate judgment in accordance with this Memorandum and Order will be
entered this same date.
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 9th day of January, 2015.
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