Thomason v. Colvin

Filing 23

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that the relief which Plaintiff seeks in his Complaint and Brief in Support of Plaintiffs Complaint is GRANTED in part and DENIED in part. [Docs. 1 , 16 .] IT IS FURTHER ORDERED that the Commissioners decision of August 18, 2016 is REVERSED and REMANDED to re-evaluate the weight given to the medical opinions of Plaintiffs treating physicians. IT IS FURTHER ORDERED that a Judgment 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 3/20/18. (KJS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

WILLIAM E. THOMASAN,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 4:16-CV-1798 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 William Thomason’s application for disability insurance
benefits and supplemental security income under the Social Security Act. Thomason alleged
disability due to fatigue, congestive heart failure, dizziness, and memory loss. (Tr. 206.) The
parties have consented to the exercise of authority by the undersigned United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c). [Doc. 9.] The Court has reviewed the parties’ briefs and
the entire administrative record, including the hearing transcripts and the medical evidence. The
Court heard oral argument in this matter on January 4, 2018. For the reasons set forth below, the
Court will reverse and remand the Commissioner’s final decision.
I.

Issues for Review
Thomason presents several issues for review. First, he states that the Commissioner

failed to meet her burden of proof to demonstrate that there are other jobs in the national
economy that the claimant can perform. Second, Thomason asserts that the ALJ did not properly
consider the opinion evidence from his treating physicians including, Dr. Robert Armbruster, Dr.

Venkata Pante, and Dr. Antonella Quattromani. Third, Thomason states that the ALJ failed to
make specific credibility findings regarding his credibility. The Commissioner contends that the
Commissioner’s decision is supported by substantial evidence on the record as a whole and
should be affirmed.
II.

Standard of Review
The Social Security Act defines disability as an “inability to engage in any substantial

gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or has lasted or can be expected to last for continuous period of
not less than 12 months.” 42 U.S.C. §§ 416(i)1)A), 423(d)1)(A).
The Social Security Administration (“SSA”) uses a five-step analysis to determine
whether a claimant seeking disability benefits is in fact disabled. 20 C.F.R. §§ 404.1520(a)(1),
416.920(a)(1). First, the claimant must not be engaged in substantial gainful activity. 20 C.F.R.
§§ 404.1520(a)(4)(i), 416.920(a)(4)(i). Second, the claimant must establish that he or she has an
impairment or combination of impairments that significantly limits his or her ability to perform
basic work activities and meets the durational requirements of the Act.
§§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii).

20 C.F.R.

Third, the claimant must establish that his or her

impairment meets or equals an impairment listed in the appendix of the applicable regulations.
20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant’s impairments do not meet
or equal a listed impairment, the SSA determines the claimant’s Residual Functional Capacity
(“RFC”) to perform past relevant work. 20 C.F.R. §§ 404.1520(e), 416.920(e).
Fourth, the claimant must establish that the impairment prevents him or her from doing
past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). If the claimant meets
this burden, the analysis proceeds to step five.

2

At step five, the burden shifts to the

Commissioner to establish the claimant maintains the RFC to perform a significant number of
jobs in the national economy. Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000). If the claimant
satisfied all of the criteria under the five-step evaluation, the ALJ will find the claimant to be
disabled. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v).
The standard of review is narrow. Pearsall v. Massanari, 274 F.3d 1211, 1217 (8th Cir. 2001).
This Court reviews the decision of the ALJ to determine whether the decision is supported by
substantial evidence in the record as a whole. 42 U.S.C. § 405(g). Substantial evidence is less
than a preponderance, but enough that a reasonable mind would find adequate support for the
ALJ’s decision. Smith v. Shalala, 31 F.3d 715, 717 (8th Cir. 1994). The court determines
whether evidence is substantial by considering evidence that detracts from the Commissioner’s
decision as well as evidence that supports it. Cox v. Barnhart, 471 F.3d 902, 906 (8th Cir. 2006).
The Court may not reverse just because substantial evidence exists that would support a contrary
outcome or because the Court would have decided the case differently. Id. If, after reviewing
the record as a whole, the Court finds it possible to draw two inconsistent positions from the
evidence and one of those positions represents the Commissioner’s finding, the Commissioner’s
decision must be affirmed. Masterson v. Barnhart, 363 F.3d 731, 726 (8th Cir. 2004). The
Court must affirm the Commissioner’s decision so long as it conforms to the law and is
supported by substantial evidence on the record as a whole. Collins ex rel. Williams v. Barnhart,
335 F.3d 726, 729 (8th Cir. 2003).

3

III.

Discussion
A.

Thomason’s Medical History

Thomason had a massive heart attack in July 2012.

He had thirteen minutes of

tachycardia 1, followed by nine minutes of flat lined echocardiogram (EKG), and was
hospitalized for 21 days. (Tr. 340.) Doctors performed a five-way cardiac bypass and he
received a pacemaker defibrillator.

(Tr. 32-33, 340.)

Dr. Antonella Quattromani was

Thomason’s initial treating cardiologist between 2012 and 2015. (Tr. 303-313, 315-327, 329-31,
348-60, 482-84.) During her treatment of Thomason, Dr. Quattromani diagnosed Thomason
with cardiomyopathy- ischemic 2, cardiomyopathy-primary, generalized osteoarthritis, history of
myocardial infarction and sudden cardiac death. In February 2013, his ejection fraction 3 was
35%. (Tr. 303-304.) During this time, Thomason’s heart condition was stable. (Tr. 303, 306,
349.) He complained about joint pain in his shoulder, knees, ankles, and elbows in August and
October 2013. (Tr. 308-309, 320.) Thomason returned to work after his heart attack in 2012 and
worked until 2014. (Tr. 38.)
During a visit with Dr. Fredric Prater in June 2014, Thomason complained of numbness
and tingling. (Tr. 420.)

1

Tachycardia is “excessive rapidity in the action of the heart; term is usually applied to a heart rate above 100 beats
per minute in an adult.” Dorland’s Illustrated Medical Dictionary 1867 (32nd ed. 2012).
2
Ischemic cardiomyopathy is the “name given to heart failure with left ventricular dilation resulting from ischemic
heart disease, does not meet strict definition of cardiomyopathy.” Dorland’s Illustrated Medical Dictionary 294
(32nd ed. 2012).
3
Ejection fraction is “the proportion of the volume of blood in the ventricles at the end of diastole that is ejected
during systole; … It is normally 65 ± 8; lower values indicate ventricular dysfunction.” Dorland’s Illustrated
Medical Dictionary 740 (32nd ed. 2012).

4

In November 2015, Thomason complained of left-sided facial numbness and whole body
numbness. (Tr. 405.) On November 13, 2015, a Carotid Duplex Bilateral 4 ultrasound showed
that there was “likely 99% stenosis of the left internal carotid artery origin with minimal flow.”
The ultrasound also showed 70-80% stenosis right internal carotid artery origin.” (Tr. 410.)
Thomason was admitted to the hospital on November 23, 2015 due to bilateral carotid artery
stenosis with 99% on the left and 70-80% on the right, uncontrolled diabetes mellitus type 2,
history of coronary artery disease, history of pacemaker placement, and history of congestive
heart failure.

(Tr. 399.) On that same date, Dr. Gordon Knight performed a left carotid

endarterectomy5 and Thomason was hospitalized for three days. (Tr. 399, 504.) Dr. Knight
performed a right carotid endarterectomy on December 9, 2015 and Thomason was hospitalized
for 2 days. (Tr. 394, 504.)
In December 2015, Thomason established care with primary care doctor, Dr. Venkata
Pante. (Tr. 443-44.) Dr. Pante diagnosed Thomason with Type 2 diabetes, peripheral vascular
disease, and hyperlipidemia, 6 cardiomyopathy, and chronic sinusitis. (Tr. 442, 444, 497.) In
February 2016, Dr. Pante noted that Thomason’s ejection fraction was 30%. (Tr. 442.)
Thomason begin treatment with cardiologist, Dr. Robert Armbruster in November 2015.
On February 12, 2016, Thomason visited Dr. Armbruster with complaints of increased dyspnea
on exertion and fatigue for six weeks, but stated he was “doing alright” overall. (Tr. 458.) Dr.
Armbruster noted that Thomason had “clear worsening of exercise tolerance.” Dr. Armbruster
ordered a nuclear stress test. (Tr. 459.) The Myocardial Perfusion Stress/Rest Study showed
4

Carotid duplex scanning is “a non-invasive, ultrasound test used to directly detect occlusive disease of the vertebral
and extracranial carotid artery.” Pagana, et al., Mosby’s Manual of Diagnostic and Laboratory Tests 874 (5th ed.
2014).
5
Carotid endarterectomy is an excision of the thickened, atheromatous tunica intima of the carotid artery, done to
prevent a stroke. Dorland’s Illustrated Medical Dictionary 616 (32nd ed. 2012).
6
Hyperlipidemia is “a general term for elevated concentrations of any or all of the lipids in the plasma.” Dorland’s
Illustrated Medical Dictionary 891 (32nd ed. 2012).

5

that myocardial perfusion was abnormal with left ventricular ejection fraction of 37%. (Tr. 45556.) On February 22, 2016, Dr. Kausar Nazir performed a left heart catherization 7, selective
coronary angiography, selective bypass graft angiography, and percutaneous coronary
intervention. (Tr. 449.) Thomason’s discharge diagnoses included coronary artery disease,
status post cardiac catherization, and percutaneous coronary intervention. (Tr. 449.) In March
2016, Thomason reported to Dr. Armbruster that he “feels great” and that his activity level was
markedly increased two weeks after the surgery. (Tr. 446.) Thomason also reported that he was
not experiencing any chest pain, shortness of breath, palpitations, lightheadedness, syncope,
claudication or shocks from his device. (Tr. 446.) In May 2016, Thomas reported to Dr.
Armbruster that he was “doing well” overall and his exercise and dyspnea with exertion had
improved. (Tr. 506.)
B.

Opinion Evidence

Thomason contends that the ALJ improperly discounted the weight of his treating
physicians’ opinions. “Medical opinions are statements from physicians and psychologists or
other acceptable medical sources that reflect judgments about the nature and severity of a
claimant’s impairments, including symptoms, diagnosis and prognosis, and what the claimant
can still do despite her impairments and her physical or mental restrictions.”

20 C.F.R.

§ 404.1527(a)(2) 8. All medical opinions, whether by treating or consultative examiners are
weighed based on (1) whether the provider examined the claimant; (2) whether the provider is a
treating source; (3) length of treatment relationship and frequency of examination, including
nature and extent of the treatment relationship; (4) supportability of opinion with medical signs,

7

Cardiac catherization is the insertion of a small catheter through a vein in an arm or leg or the neck and into the
heart. Dorland’s Illustrated Medical Dictionary 307 (32nd ed. 2012).
8
Many Social Security regulations were amended effective March 27, 2017. Per 20 C.F.R. § 404.1527, the court
will use the regulations in effect at the time that this claim was filed.

6

laboratory findings, and explanation; (5) consistency with the record as a whole;
(6) specialization; and (7) other factors which tend to support or contradict the opinion. 20
C.F.R. § 404.1527(c). 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(c); SSR 96-2p; see also Hacker, 459 F.3d at 937.
“Whether the ALJ grants a treating physician’s opinion substantial or little weight, the
regulations provide that the ALJ must ‘always give good reasons’ for the particular weight given
to a treating physician’s evaluation.” Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000).
1.

Dr. Antonella Quattromani

On April 22, 2014, Dr. Quattromani, a cardiologist, completed a Medical Source
Statement (MSS) for Thomason. (Tr. 329-31.) In the MSS, Dr. Quattromani noted that Thomas
had been diagnosed with hypertension, back pain, myocardial infarction, sudden cardiac death,
hyperlipidemia, severe left ventricle (LV) dysfunction, congestive heart failure (CHF), and
degenerative joint disease in the shoulder and knees. (Tr. 329.) She noted that his treatment
included a bi-ventricular implantable cardioverter defibrillator and his side effects included that
he may be defibrillated and experience fatigue, dizziness, low blood pressure. (Tr. 329.) Dr.
Quattromani noted Thomason met the requirements for the New York Heart Association’s
(NYHA) Functional Classification III 9- which indicates marked limitation of physical activity,
9

“The New York Heart Association functional classification system is used by physicians to assess a patient’s state
of heart failure.” Brawders v. Astrue, 793 F.Supp.2d 485, 493 (D. Mass. 2011).

7

comfortable at rest, less than ordinary activity causes fatigue, palpitation, or dyspnea. (Tr. 329.)
She noted that the side effects from the defibrillator and his medications included being
defibrillated, fatigue, dizziness, low blood pressure, hypotension, electrolyte abnormalities. (Tr.
329.) Dr. Quattromani opined that Thomason could frequently lift and carry 10 pounds or less
and never fifty pounds. (Tr. 330.) She also opined that Thomason could frequently twist and
balance, rarely stoop, and never crouch, crawl, or climb. (Tr. 330.) She also opined that he
could sit and stand 30 minutes at a time and sit for two hours and stand for less than two hours in
an eight hour work day. (Tr. 330.) Dr. Quattromani opined that Thomason needed to shift
positions at will from sitting, standing, or walking; needed to take unscheduled breaks every 2
hours for 15 minutes due to shortness of breath. (Tr. 330-31.) She indicated that he needed to
elevate his legs with a prolonged sit or stand for 30% of the work day due to fatigue and
swelling. (Tr. 331.) She estimated that he would be off task 15% of the time and would miss
work 4 days per month because of his condition. (Tr. 331.) She stated that he was capable of
low stress work and would have good and bad days. (Tr. 331.) The ALJ found that there was no
explanation for Dr. Quattromani’s opinion that Thomason would miss four or more days of work
of month. (Tr. 18.) The ALJ gave little weight to Dr. Quattromani’s opinion, because it was
completed prior to the cardiac interventions. (Tr. 19.)
The Court finds that the ALJ erred in giving little weight to Dr. Quattormani’s opinion.
Dr. Quattormani’s indicated the basis for her opinion, which were Thomason’s medical
diagnoses and objective medical testing.

(Tr. 329.)

Further, Thomason had had medical

interventions before seeing Dr. Quattromani, because he had a massive heart attack and
installation of a defibrillator before she treated him. She also treated him after the alleged onset

8

date of disability. Dr. Quattormani’s opinion is not inconsistent with the other objective medical
evidence. Therefore, the ALJ improperly gave little weight to her opinion.
2.

Dr. Robert Armbruster

Dr. Armbruster, a cardiologist, completed a medical statement regarding Thomason on
March 14, 2016. (Tr. 438.) Dr. Armbruster indicated that Thomason had fatigue on exertion and
dyspnea on mild exercise. (Tr. 438.) Dr. Armbruster opined that Thomason could work four
hours per day, stand and sit for 30 minutes at a time, he could lift less than 50 pounds on an
occasional and frequent basis, and he occasionally needs to elevate his legs during an 8 hour
workday. (Tr. 438.) Dr. Armbruster included information about Thomason’s stress test and
cardiac procedures. (Tr. 438.) The ALJ gave Dr. Armbruster’s opinion little weight, because he
found that Dr. Armbruster’s was inconsistent with this treatment notes stating that Thomason
was feeling great and his activity had markedly increased. (Tr. 19.) The ALJ noted that the
record does not show Thomason needed any extensive cardiac rehab after his procedures. (Tr.
19.)
The Court finds these reasons were insufficient to discount Dr. Armbruster’s opinion.
Records indicating that a claimant, recovering from several heart surgeries over a short period of
time, feels better does not mean that he has the RFC to work a full-time job. Thomason’s
statements that he was feeling better and his activity had improved is not inconsistent with an
inability to work. “It is possible for a person’s health to improve, and for the person to remain
too disabled to work.” Cox v. Barnhart, 345 F.3d 606, 609 (8th Cir. 2003). “[D]oing well for
the purposes of a treatment program has no necessary relation to a claimant’s ability to work or
to [his] work-related functional capacity.” Hutshell v. Massanari, 259 F.3d 707, 712 (8th Cir.
2001). See e.g., Gude v. Sullivan, 956 F.2d 791, 794 (8th Cir. 1992) (claimant doing well for

9

someone with systemic lupus erythematosus and it does not contradict doctor’s opinion on her
inability to work); Fleshman v. Sullivan, 933 F.2d 674, 676 (8th Cir. 1991) (A person who has
undergone a kidney transplant may indeed “feel better” than she did when she was undergoing
dialysis, but that does not compel the conclusion that she was therefore able to work). To
determine whether a claimant has the residual functional capacity necessary to be able to work
the Court looks to whether he has “the ability to perform the requisite physical acts day in and
day out, in the sometimes competitive and stressful conditions in which real people work in the
real world.”

Forehand v. Barnhart, 364 F.3d 984, 988 (8th Cir. 2004) (citing McCoy v.

Schweiker, 683 F.2d 1138, 1147 (8th Cir.1982) (en banc)).

In his treatment notes, Dr.

Armbruster was not assessing Thomason’s ability to work, but his recovery from heart surgery.
Dr. Armbruster cited objective medical testing to support his opinion, which other than the 50
pound weight limit, is not contradicted by other evidence in the record. Therefore, the ALJ
improperly discounted Dr. Armbruster’s opinion.
3.

Dr. Venkata Pante

Dr. Venkata Pante treated Thomason as his primary care physician managing his type 2
diabetes. (Tr. 440-45, 496-500.) The record shows treatment notes from December 2015 to May
2016. Dr. Pante completed a medical source statement in March 2016. (Tr. 433-35.) In the
opinion, Dr. Pante noted that Thomason’s diagnoses included coronary artery disease,
cardiomyopathy, peripheral vascular disease, hypertension, and an AICD pacer.

(Tr. 433.)

Thomason’s symptoms were fatigue at times, neuropathy pain, and dyspnea with occasional pain
(Tr. 433.) Dr. Pante opined that Thomason could lift and carry less than 10 pounds frequently
occasionally balance and crouch. (Tr. 434.) She also opined that he could sit and stand for 30
minutes at a time for up to two hours during an eight hour work day. (Tr. 434.) She also

10

indicated that he would need to shift positions at will. (Tr. 434.) She also opined that Thomason
would need to take unscheduled breaks during the work day every two to three hours for twenty
minutes due to pain and chronic fatigue. (Tr. 435.) She also stated that he would need to elevate
his leg thirty degrees for 20-30 minutes due to swelling. (Tr. 435.) Dr. Pante opined that
Thomason would be off task 25% of the time and was capable of low stress work. (Tr. 435.)
She opined that his impairments would likely to produce good and bad days and he would likely
miss or leave work early more than four days per month. (Tr. 435.)
The ALJ gave Dr. Pante’s opinions little weight, because he found that (1) Dr. Pante was
treating Thomason for uncomplicated diabetes, (2) his treatment notes only found decreased
sensation in the lower extremities with no mention of a loss of strength function or atrophy. The
ALJ opined that Dr. Pante’s treatment notes were not supported by his actual treatment notes
which amounted to a series of routine diabetes check-ups.

The Court finds that the ALJ

improperly discounted Dr. Pante’s medical opinion. Most significantly, Dr. Pante’s opinion is
very consistent with Dr. Armbruster and Dr. Quattromani’s opinions regarding: (1) the need for
leg elevation, (2) the need to shift positions at will, (3) four days or more per month to miss work
because of condition, and (4) the ability to do low stress work. Although Dr. Pante treated
Thomason for diabetes, his opinion should be given some weight because his opinion is
consistent with the treating specialists’ opinions and with the record as a whole. Therefore, the
ALJ’s weighing of Dr. Pante’s opinion is not supported by substantial evidence.
C.

Vocational Expert Testimony and Credibility

Next, Thomason contends that the ALJ committed reversible error because the ALJ did
not allow his counsel to cross examine the vocational expert regarding the basis for the number
of jobs provided in his testimony. Thomason also states that the ALJ failed to make any specific

11

credibility findings. Because the Court has reversed for the reasons stated above, the Court will
not address the vocational expert issue and credibility issue, which may be affected by the
reconsideration of the other issues addressed herein.
IV.

Conclusion
Based on the foregoing, the undersigned finds that the Commissioner’s final decision was

not supported by substantial evidence in the record. Therefore, the Court will reverse and
remand this action for further proceedings consistent with this memorandum and order.
Accordingly,
IT IS HEREBY ORDERED that the relief which Plaintiff seeks in his Complaint and
Brief in Support of Plaintiff’s Complaint is GRANTED in part and DENIED in part. [Docs.
1, 16.]
IT IS FURTHER ORDERED that the Commissioner’s decision of August 18, 2016 is
REVERSED and REMANDED to re-evaluate the weight given to the medical opinions of
Plaintiff’s treating physicians.
IT IS FURTHER ORDERED that a Judgment 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 20th day of March, 2018.

/s/ Nannette A. Baker
NANNETTE A. BAKER
UNITED STATES MAGISTRATE JUDGE

12