Abron v. Astrue
Filing
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ORDER and OPINION reversing Commissioner's final decision and remanding for reconsideration. Signed on 12/07/2012 by District Judge Ortrie D. Smith. (Will-Fees, Eva)
IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
WESTERN DIVISION
JIMMY L. ABRON,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security.
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Case No. 12-0337-CV-W-ODS
ORDER AND OPINION REVERSING COMMISSIONER=S FINAL DECISION
AND REMANDING FOR RECONSIDERATION
Pending is Plaintiff's request for review of the final decision of the Commissioner of
Social Security denying his applications for disability benefits and supplemental security
income benefits. The Commissioner's decision is reversed, and the case is remanded
for reconsideration consistent with this Order.
The Court presents a brief recitation of the background to provide context for its
conclusions. Plaintiff was born in August 1961. When he was thirteen, Plaintiff’s leg
was amputated above the knee. He completed the tenth grade and the ALJ found he
has “a limited education.” R. at 20, 34. Plaintiff has prior work experience as an auto
mechanic that qualifies as substantial gainful activity. The instant application for
Supplemental Security Income Benefits was filed in January 2009, alleging Plaintiff
became disabled in December 2007 due to a combination of depression, back pain, and
other ailments.
1.
In July 2009, Plaintiff experienced what the ALJ described as “several stressful life
events: he was not working, had just broken up with his girlfriend, and would soon be
homeless.” R. at 13. Plaintiff was seen by a psychiatrist, Dr. Nallu Reddy, who
diagnosed Plaintiff as suffering from major depression, assessed his GAF score at 34,
and prescribed medication. This situation persisted, according to Dr. Reddy, until at
least March 2010. Despite the records and opinions of Dr. Reddy and Plaintiff’s treating
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physician (Dr. David Dembinski), the ALJ determined Plaintiff’s depression was not
severe because it imposed no limitations on Plaintiff’s work-related capabilities. In
reaching this conclusion, the ALJ conducted his own analysis of the Diagnostic and
Statistical Manual of Mental Disorders and decided Plaintiff could not have a GAF score
of 34 and was not depresseed. R. at 14-16. While the facts in a particular case may
permit an ALJ to disbelieve a doctor’s opinion, e.g.,.Anderson v. Astrue, 696 F.3d 790,
793-094 (8th Cir. 2012); Halverson v. Astrue, 600 F.3d 922, 929-30 (8th Cir. 2010), Pena v.
Chater, 76 F.3d 906, 908 (8th Cir. 1996), the ALJ is not allowed to substitute his medical
judgment for that of a doctor. E.g., Finch v. Astrue, 547 F.3d 933, 938 (8th Cir. 2008)
(citing Ness v. Sullivan, 904 F.2d 432, 435 (8th Cir. 1990).
An ALJ may solicit additional information from a doctor, refer the claimant for a
consultative examination, or elicit testimony from a medical expert to explain the records
provided by the claimant’s doctors. The ALJ did none of these things. Here, the ALJ
did not simply reject a doctor’s opinion about a claimant’s abilities: the ALJ “re-diagnosed”
the claimant, inserting his own medical diagnosis in place of the doctors’. The ALJ
cannot do this.
2.
Plaintiff reported experiencing “phantom pain” from his amputated leg. The ALJ
rejected this claim because “there is no testing done to prove the existence of his alleged
phantom pain.” R. at 18. The Court is not aware of any objective “test for pain,” so the
Court does not see how the absence of such a test bears on Plaintiff’s credibility.
The Commissioner argues pain, alone, cannot be disabling, and that a claimant’s
subjective complaints cannot substantiate a disability claim absent an objective medical
diagnosis. To the extent the Commissioner is contending phantom pain cannot be the
basis for a disability, the Court disagrees. At a minimum, “phantom pain” appears to be a
mental effect of a physical condition (i.e., amputation) that, in appropriate circumstances,
might substantiate a claim for disability. Such pain would have to exist (or be expected
to exist) for more than a year and meet the other requirements, but pain – phantom or
otherwise – cannot be rejected out of hand.
The ALJ observed that Plaintiff was able to work with this phantom pain. R. at 18.
Had Plaintiff rested his disability claim solely on the existence of phantom pain, this
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observation would provide valid grounds to reject the claim. However, the fact that
Plaintiff worked with the pain for many years does not mean that the pain did not exist.
Thus, when Plaintiff alleges (as he has done in this case) that he suffers from additional
medical and ailments that, in combination with the pre-existing pain preclude him from
working, the ALJ is obligated to consider the effects of all of Plaintiff’s ailments in
ascertaining the residual functional capacity. “A claimant’s RFC represents the most he
can do despite the combined effects of all of his credible limitations and must be based on
all credible evidence.” McCoy v. Astrue, 648 F.3d 604, 614 (8th Cir. 2011).
The ALJ rejected the existence (and effects) of pain because (1) there was no
objective test for pain performed and (2) Plaintiff was able to work with the pain. The
former point makes no sense, and the latter point does not support the conclusion.
Plaintiff may have experienced pain that, alone, did not disable him, but did when
combined with other, later-developed ailments. Thus, the ALJ’s rationale for rejecting all
possible effects of pain are not supportable.
3.
The ALJ found Plaintiff can “perform sedentary work . . . except the claimant can
only kneel, stoop, crouch, crawl, push and pull only occasionally.” R. at 17. Later, the
ALJ noted the Medical-Vocational Guidelines can be used to direct a decision only if there
are no nonexertional limitations. However, after observing Plaintiff had nonexertional
limitations that precluded him from performing the full range of sedentary work, the ALJ
proceeded to use the Guidelines anyway after opining that Plaintiff’s “additional
limitations have little or no effect on the occupational base of unskilled sedentary work.”
R. at 21. This was erroneous because the ALJ did not indicate how the Record
supported such a finding, and the Court’s independent review does reveal any evidentiary
support for this finding. See Reed v. Sullivan, 988 F.2d 812, 816 (8th Cir. 1993).1
4.
It is not clear that the ALJ performed a proper credibility analysis. The familiar
standard for analyzing a claimant=s subjective complaints (including subjective
complaints of pain) is set forth in Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984)
(subsequent history omitted):
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Of course, the RFC may change depending on the findings made on remand,
necessitating a new analysis at step five in any event.
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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. The
adjudicator may not disregard a claimant=s subjective
complaints solely because the objective medical evidence
does not fully support them.
The absence of an objective medical basis which supports the
degree of severity of subjective complaints alleged is just one
factor to be considered in evaluating the credibility of the
testimony and complaints. The adjudicator must give full
consideration to 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 duration, frequency and intensity of the pain
3. precipitating and aggravating factors;
4. dosage, effectiveness and side effects of
medication;
5. functional restrictions.
The adjudicator is not free to accept or reject the claimant=s
subjective complaints solely on the basis of personal
observations. Subjective complaints may be discounted if
there are inconsistencies in the evidence as a whole.
739 F.2d at 1322. While current regulations incorporate these considerations, the
Eighth Circuit has declared that the Apreferred practice@ is to cite Polaski. Schultz v.
Astrue, 479 F.3d 979, 983 (8th Cir. 2007).
The ALJ cited some of these factors, but it is not clear that all were considered.
Moreover, the Commissioner now defends the final decision, in part, by arguing that pain
“by itself cannot constitute a medically determinable impairment.” Commissioner’s Brief
at 7. This position seems contrary to Polaski. Inasmuch as the case must be reversed
and remanded for other reasons, the Court deems it appropriate for the Commissioner to
re-assess Plaintiff’s credibility as well. In reevaluating Plaintiff’s credibility, the
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Commissioner will also reconsider all of the evidence bearing on Plaintiff’s residual
functional capacity.
5.
Plaintiff asks for an order requiring the Commissioner to calculate and award
benefits. This relief is justified only if the Record conclusively establishes Plaintiff’s right
to benefits. The Court holds this is not the case: Plaintiff’s entitlement to benefits
depends on the proper resolution of factual matters that are committed to the
Comissioner’s determination.
For these reasons, the Comissioner’s final decision is reversed and the case is
remanded for further proceedings.
IT IS SO ORDERED.
/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT
DATE : December 7, 2012
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