Avetta v. Colvin
MEMORANDUM AND ORDER IT IS HEREBY ORDERED that the decision of the Commissioner is reversed and this matter is remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further proceedings. A separate Judgment in accordance with this Memorandum and Order will be entered this same date. Signed by District Judge Carol E. Jackson on 6/6/17. (KXS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
MONICA L. AVETTA,
NANCY A. BERRYHILL,1 Acting
Commissioner of Social Security,
Case No. 4:16-CV-632 (CEJ)
MEMORANDUM AND ORDER
This matter is before the Court for review of an adverse ruling by the Social
Security Administration. The defendant acknowledges that the Administrative Law
Judge (ALJ) failed to consider relevant medical records. [Doc. # 20 at 12]. The
Court will remand this matter for further proceedings.
On February 15, 2013, plaintiff Monica L. Avetta filed applications for a
period of disability, disability insurance benefits, Title II, 42 U.S.C. §§ 401 et seq.,
and for supplemental security income, Title XVI, 42 U.S.C. §§ 1381 et seq., with an
alleged onset date of March 25, 2012. (Tr. 156-63, 164-71). After plaintiff’s
applications were denied on initial consideration (Tr. 119-23), she requested a
hearing from an ALJ, which was held on August 14, 2014. (Tr. 124-25, 60-96). On
February 17, 2015, the ALJ issued a decision denying plaintiff’s applications. (Tr.
47-55). The Appeals Council denied plaintiff’s request for review on April 5, 2016.
(Tr. 1-5). Accordingly, the ALJ’s decision stands as the Commissioner’s final
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule
25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill is substituted for Acting
Commissioner Carolyn W. Colvin as the defendant in this suit.
In documents completed in February 2013, plaintiff claimed disability due to
unspecified back problems, neck problems, right shoulder problems, urinary
problems, Type II diabetes, high blood pressure, and leg problems. She was
prescribed medications for the treatment of high blood pressure, diabetes, and
overactive bladder, and took Tylenol or ibuprofen for pain. As a child, plaintiff
attended special education classes and completed high school. She had worked as
a school custodian, a general laborer for temporary agencies, a nursing home
housekeeper and launderer, and a hotel room attendant. (Tr. 197-209). She and
her husband, who is disabled, lived in a mobile home. Plaintiff cooked meals and
washed dishes and, with her husband’s help, completed laundry and vacuuming.
(Tr. 225-39). She believed she could walk a distance of one mile before her legs
gave out. She used a cane and wore glasses. In July 2013, plaintiff reported that
her condition had deteriorated: she experienced severe back pain and had problems
with both legs and her left arm and shoulder. She fell on June 9, 2013, when her
legs gave out. In addition, she was depressed and tired of being in pain. She was
no longer able to cook or clean. (Tr. 242-46),
At the August 2014 hearing, plaintiff testified that, due to her back pain, she
was unable to sit or stand for longer than 30 minutes or walk for longer than five
minutes. She had started using a cane because she fell every month or two. She
had difficulty lifting her right arm, due to surgery in 2004 to repair her right rotator
cuff. She took Tramadol, Flexeril, and Naproxen for pain, and had a brief course of
treatment with Percocet while she was waiting for kidney stones to pass. She had
been prescribed prednisone but it caused her blood sugars to rise to the point that
she was hospitalized for seven days in June 2014. She started taking insulin in
October 2013. Her blood sugars remained uncontrolled despite efforts to adjust her
medication and insulin. (Tr. 73-75). Plaintiff disputed a report that she had been
consuming even modest amounts of alcohol and stated that she had quit smoking
when she was in the hospital.
Plaintiff testified that she showered every day, but acknowledged that she
had been told that she had a bad odor. (Tr. 82). She also suffered from urinary
incontinence. When she worked as a cleaner in a nursing home, she was frequently
unable to get to a rest room in time to prevent an accident. (Tr. 88-90). She
carried extra clothes with her at all times and had had to change her clothes before
the hearing began. (Tr. 87-88, 91). She had been in special education classes for a
reading disability and for being a “slow learner.” She sometimes had difficulty
understanding the information given to her by medical providers. (Tr. 79). When
she worked temporary jobs on assembly lines, she was unable to keep up with the
pace. (Tr. 91).
On February 17, 2015, the ALJ determined that plaintiff was not disabled.
The ALJ found that plaintiff had the severe impairments of mild osteoarthritis,
degenerative disc disease, and obesity; that she had the residual functional
capacity to perform the full range of medium work; and that her impairments would
not preclude her from performing work that exists in significant numbers in the
national economy. (Tr. 49-54).
II. 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 citation omitted).
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).
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
“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.
APrior 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)). “RFC is an
administrative assessment of the extent to which an individual’s medically
determinable 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 omitted).
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
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 citation omitted). “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. § 404.1520(f).
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 failed to consider all the relevant medical
evidence related to her spinal impairments and diabetes.
The ALJ found that “objective test results failed to demonstrate significant
spinal impairment.” (Tr. 53). The ALJ cited a lumbar x-ray taken on April 25, 2014,
which revealed scoliosis and spondylosis, but no pathologic lateral listhesis or
compression deformities. (Tr. 351). However, an MRI completed on January 7,
2015, showed prominent diffuse disc bulging at L1-L2 with a central and right-sided
disc protrusion, prominent thecal sac deformity, and right-sided nerve root
compression, with presumed involvement of the nerve root. (Tr. 654). Upon review
of the MRI results, plaintiff’s physician prescribed epidural steroid injections. (Tr.
655). On September 3, 2015, neurosurgeon James T. Merenda, M.D., reviewed the
MRI and opined that plaintiff had “severe stenosis at L1-2 with a large disc
herniation.”2 (Tr. 22).
In addition, the ALJ incorrectly determined that plaintiff did not exhibit
lumbar tenderness upon examination. (Tr. 52). On October 11, 2013, a nurse
practitioner noted that plaintiff had decreased range of motion and tenderness of
the lumbar spine. (Tr. 447). Similarly, on April 22, 2014, an emergency room
physician prescribed hydrocodone for plaintiff’s complaints of pain, supported by
findings that plaintiff had pain with range of motion and percussible tenderness of
the lumbar spine. (Tr. 397). At follow-up on April 25, 2014, plaintiff displayed
tenderness, pain and spasm of the lumbar spine and received a prescription for
Flexeril. (Tr. 335-36). Again on May 1, 2014, plaintiff reported constant back pain,
which she rated at level 8 or 9 on a 10-point scale, with occasional weakness in her
legs. (Tr. 434). On examination, she displayed tenderness to the lumbar spine and
with bending. Straight leg raising was positive on the left side. On May 13, 2014, a
physical therapist noted that plaintiff had pain with palpation at the sacroiliac joint
and the anterior superior iliac joint, and pain to the touch with moderate pressure
at L4 and L5. (Tr. 362). Plaintiff’s problems included limitations in her range of
This evidence was submitted to the Appeals Council, which concluded that it did not affect
the ALJ’s decision because it concerned plaintiff’s condition after the ALJ’s decision. (Tr. 2).
motion, decreased strength, pain, impaired mobility, and muscle guarding. It was
the therapist’s impression that plaintiff’s signs and symptoms were consistent with
her diagnosis. (Tr. 363).
The ALJ also found that plaintiff’s diabetes mellitus was not a severe
impairment. (Tr. 49-50). The ALJ noted that plaintiff had a poor history of
compliance with medical treatment. (Tr. 50). There is ample evidence to support
recommendations, but there is at least some evidence that plaintiff’s finances and
lack of comprehension contributed to her failure to follow the prescribed medical
treatment, factors which the ALJ did not address. (Tr. 561) (Nov. 2010 report that
plaintiff had “a nonsense view” of her diabetes that was “physiologically
incompatible with reality” and did not check her blood sugars regularly because she
could not afford the strips); (Tr. 446) (October 2013 plaintiff reports she could not
afford to see doctor). The ALJ also noted that plaintiff did not have recurrent
diabetic ketoacidosis or any history of diabetic coma and found that the medical
records “did not demonstrate this impairment is anything other than a slight
abnormality resulting in more than a minimal effect on [plaintiff’s] ability to work in
spite of [her] noncompliance.” In reaching this conclusion, the ALJ did not address
plaintiff’s history of kidney disorders, urinary tract infections, and incontinence.3
As a result of the ALJ’s failure to consider all relevant medical evidence, the
determination that plaintiff retains the RFC to perform the full range of medium
work is not supported by substantial evidence in the record as a whole.
On September 3, 2015, Dr. Merenda noted that plaintiff “had uncontrolled diabetes and . .
a severe urinary tract infection which is obvious when one comes in the room.” This
observation was made after the ALJ’s decision but is consistent with plaintiff’s testimony
that she had frequent “accidents” and her record of treatment for urinary tract infections
and incontinence. See Tr. 311 (10/23/13); Tr. 319 (11/14/13); Tr. 430 (5/26/14).
IT IS HEREBY ORDERED that the decision of the Commissioner is
reversed and this matter is remanded pursuant to the fourth sentence of 42
U.S.C. § 405(g) for further proceedings.
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 6th day of June, 2017.
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