Gnewuch v Astrue
Filing
24
MEMORANDUM AND OPINION - The Commissioner's decision will be vacated, and this matter remanded for further findings consistent with this opinion. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (KBJ)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
CAROL A. GNEWUCH,
)
)
Plaintiff,
)
)
v.
)
)
MICHAEL J. ASTRUE,
)
Commissioner of Social
)
Security Administration,
)
)
Defendant.
)
______________________________)
4:10CV3165
MEMORANDUM OPINION
This matter is before the Court for review of the
decision of defendant Commissioner of the Social Security
Administration (“SSA”) denying Social Security Disability
Insurance (“SSD”) and Supplemental Security Income (“SSI”)
benefits to plaintiff Carol A. Gnewuch (“Ms. Gnewuch”) pursuant
to 42 U.S.C. §§ 405(g) and 1383(c).
Upon review, the Court finds
the SSA’s decision is not supported by substantial evidence and
should be reversed and the matter remanded for award of Ms.
Gnewuch’s SSI and SSD benefits.
I.
BACKGROUND AND PROCEDURAL HISTORY
Ms. Gnewuch was born in November 1948 (Tr. 22).
She
graduated from high school and is a licensed practical nurse
(Tr. 22-23).
Her most recent job, which she held for ten years,
was as a donor services specialist at the American Red Cross (Tr.
120).
Ms. Gnewuch alleges she has been disabled since January
31, 2007, when she hurt her back sweeping snow (Tr. 23).
She
alleges two major impairments, fibromyalgia and degeneration of
the spine (Tr. 119).
Ms. Gnewuch saw John C. Wilcox, M.D., her primary care
provider, on January 9, 2006, due to pain in the neck and
shoulder (Tr. 219).
She had been “getting physical therapy
without much relief” (Tr. 219).
That same day, Ms. Gnewuch saw
Mike K. Perry, CRNA, PhD, DAAPM, at the Pain Clinic (Tr. 283).
Dr. Perry noted that Ms. Gnewuch had been “diagnosed with
fibromyalgia since 1991 and she has had occipital neuralgia
symptoms since September of 2005.
She has been going to physical
therapy . . . and she also does massage therapy.
States that
between the treatments they last for a day or two for which she
feels fairly decent and then she has a recurrence of symptoms.”
(Tr. 283).
Dr. Perry performed a “trigger point” and a “greater
occipital nerve block” for treatment of occipital neuralgia and
fibromyalgia (Tr. 283-84).
On February 6, 2006, Dr. Wilcox noted that Ms. Gnewuch
“has fibromyalgia and is still experiencing constant pain” (Tr.
225).
Ms. Gnewuch saw Dr. Perry on seven occasions between
February 6, 2006, and May 15, 2006, with similar complaints,
diagnoses, and treatments as those of January 6, 2006 (Tr. 27274, 276, 279-80, 282).
On June 30, 2006, Dr. Wilcox noted that
her “fibromyalgia was acting up,” with “increasing pain” (Tr.
216).
Ms. Gnewuch saw Dr. Perry on six occasions between July
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17, 2006, and October 16, 2006, with similar complaints,
diagnoses, and treatment as the previous visits (Tr. 211-13, 25961).
On December 4, 2006, Dr. Perry wrote, “As far as her
fibromyalgia, I informed her that she will continuously have
these trigger point areas probably the rest of her life and it is
a matter of how often to treat and the benefits she gains from
them” (Tr. 253).
Ms. Gnewuch saw Dr. Perry on January 15, 2007
(Tr. 251), February 5, 2007 (Tr. 231), and February 19, 2007 (Tr.
249), with similar complaints, diagnoses, and treatment.
On February 28, 2007, Kurt McCallum, P.T., of Grand
Island Physical Therapy noted that Ms. Gnewuch “is extremely
tender to palpation . . . . Active range of motion is extremely
guarded due to acute lumbar disc syndrome” (Tr. 304).
Ms.
Gnewuch had physical therapy treatment thirteen times in March
2007, eleven times in April 2007, and twelve times in May 2007
(Tr. 298-303).
Ms. Gnewuch saw David S. Diamant, M.D. on March 19,
2007, for an epidural steroid injection in a disc in her back
(Tr. 209).
Dr. Diamant noted that Ms. Gnewuch had a history of
“chronic low back pain” but that after the snow-sweeping injury,
the “pain intensified and it began referring into both lower
limbs, as well” (Tr. 207).
Physical therapy and chiropractic
treatment “improve her symptoms to about 50 percent,” but “she is
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still far worse than her previous baseline” (Tr. 207).
Dr.
Diamant noted that she had “constant low lumbar pain with
referral into the buttock and posterior thigh” (Tr. 207).
An MRI
of the spine from February 13, 2007, showed “loss of height and
hydration of the L4-5 disc with a bulge as well as loss of
hydration of L1-2, L3-4, and L5-S1" (Tr. 207).
Dr. Diamant noted
that the “pain intensity is variable at best, 3/10; at worst
8/10"
(Tr. 207).
On March 26, 2007, a nurse noted that Ms.
Gnewuch’s leg pain “is almost gone” but that Ms. Gnewuch “[s]till
has the [lower back pain]” (Tr. 206).
The nurse sent a note to
Ms. Gnewuch’s employer calling for “no flexion” and a ten-pound
weight limit (Tr. 206).
On April 10, 2007, Dr. Diamant noted that while Ms.
Gnewuch’s “leg symptoms have resolved,” “she continues to
complain of back pain” (Tr. 205).
He explained to Ms. Gnewuch
that “there is nothing likely that I can do that will probably
lead to significant symptom relief” and that her pain is “likely
discogenic” (Tr. 205).
Dr. Diamant did “not think she would be a
good candidate to consider further workup for discogenic pain and
interbody fusion in light of her fibromyalgia history” (Tr. 205).
Dr. Diamant noted that he did “think she is able to work provided
that they will allow her to sit/stand as tolerated” (Tr. 205).
On April 9, 2007, Mr. McCallum wrote, “I would like
[Ms. Gnewuch] to perform no more than 45 minutes to an hour of
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driving without getting out and performing a McKenzie exercise”
(Tr. 301).
On April 20, 2007, Mr. McCallum wrote that Ms.
Gnewuch stated “the driving significantly aggravated her symptoms
up in to the 7-8 region” (Tr. 300).
On April 23, 2007, Dr. Wilcox noted that the March 2007
epidural had helped Ms. Gnewuch’s leg symptoms but that the back
pains continued (Tr. 210).
Dr. Wilcox noted, “She is trying to
get back to work at the blood mobile, but some of the
restrictions that Dr. Diamant recommended, such as sitting and
standing whenever she needs to, may not be available for her
because of the work load” (Tr. 210).
On May 4, 2007, Mr. McCallum noted that Ms. Gnewuch
“was instructed at this time that she has been let go from her
job duties at the American Red Cross.
The American Red Cross
feels that they cannot accommodate the current restrictions that
she has been placed on due to her lumbar back and lower extremity
symptoms.
[She] is very disappointed about being fired . . . .”
(Tr. 299).
On May 17, 2007, Mr. McCallum noted that Ms. Gnewuch
“has not returned to work after [being] fired in the first week
of May by the American Red Cross.
She states that she [will]
possibly be trying to look for employment, but is very
discouraged due to the fact that she is not able to perform many
work activities without significant increase in symptoms in the
right and left lower extremity.
[She] continues also to have
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right and left low back pain with symptoms greater on the left
than right.
She would like to advance her exercises as much as
possible to further increase her endurance and allow her to gain
strength for possible job situation” (Tr. 298).
On June 18, 2007, Dr. Diamant noted that Ms. Gnewuch
has chronic low back pain, which was bothered by exercises in
physical therapy (Tr. 333).
Dr. Diamant thought that Ms. Gnewuch
“is certainly not a good fusion candidate based on her history of
fibromyalgia” (Tr. 333).
He did not think she would be a good
candidate for “provocation discography” (Tr. 333).
Also, if “the
pain were coming from the L4-5 disc, that might be too
degenerative to even consider IDET” (Tr. 333).
Ms. Gnewuch saw Dr. R. L. Pomajzl, D.C., for
chiropractic treatment on ninety-seven occasions between January
16, 2006, and September 18, 2007 (Tr. 186-97, 200-02).
Ms.
Gnewuch saw Dr. Wilcox on eleven other occasions for unrelated
complaints, with little mention of back pain or fibromyalgia in
the brief notes from January 9, 2006, to April 23, 2007 (Tr. 210,
214-19).
On July 11, 2007, Roderick Harley, M.D., a state agency
reviewing physician, completed a Physical RFC Assessment of Ms.
Gnewuch for her initial disability applications (Tr. 342).
Dr.
Harley listed Ms. Gnewuch’s diagnoses as lumbar spondylosis and
fibromyalgia (Tr. 342).
Dr. Harley stated that Ms. Gnewuch’s
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diagnoses limited her to lifting no more than twenty pounds
occasionally and ten pounds frequently, stand or walk about six
hours in an eight-hour workday, and sit about six hours in an
eight-hour workday (Tr. 342).
On July 12, 2007, the SSA denied
Ms. Gnewuch’s initial SSD and SSI benefits claims.
On October 10, 2007, Jerry Reed, M.D., also a state
agency reviewing physician, completed a second Physical RFC
Assessment of Ms. Gnewuch for the reconsideration of her
disability applications (Tr. 351).
Dr. Reed noted that there
were no new allegations since the last determination and that
“the RFC of 7/12/07 is affirmed as written” (Tr. 351).
On
October 11, 2007, Ms. Gnewuch’s claims were denied.
On November 13, 2007, Dr. Wilcox noted that Ms. Gnewuch
“always has neck and shoulder pains from her fibromyalgia.
She
has seen her chiropractor at least once a week for the last 4
weeks, but no relief with the pain” (Tr. 392).
On November 14,
2007, David A. Lindley, D.O. assessed Ms. Gnewuch with “chronic
cephalgia of multifactorial etiology including possible chronic
sinusitis, myofascial pain, occipital neuralgia, facetogenic
pain, and rule out intracranial etiology status post head injury”
and “fibromyalgia as previously diagnosed” (Tr. 364).
Dr.
Lindley performed a bilateral occipital nerve block and bilateral
trigger point injections (Tr. 360).
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On December 4, 2007, Dr. Lindley noted that after the
injections at the previous visit, “[Ms. Gnewuch’s] cephalgia
resolved and was aborted for about five hours after the
procedure” but that there was a “slow return of the symptoms over
several days” (Tr. 358).
Dr. Lindley performed a bilateral
occipital nerve block and bilateral trigger point injections (Tr.
357).
On January 8, 2008, Ms. Gnewuch saw Dr. Lindley with the
complaint that the repeated injections from the last visit had
aggravated her pain (Tr. 355).
Ms. Gnewuch “reports that her
pain is ‘all over’ and is a burning and stiffness” (Tr. 355).
Dr. Lindley did not want to continue the injections due to the
increased pain (Tr. 356).
On January 31, 2008, Dr. Wilcox noted that Ms. Gnewuch
“has been having some back pains recently and has seen Dr.
Lindley. . . . She is able to do a little bit of walking for
exercise but not much more than that” (Tr. 391).
On February 4,
2008, Dr. Lindley assessed Ms. Gnewuch as having chronic
cervicalgia, fibromyalgia, and a significant stress and anxiety
component of pain (Tr. 351).
Ms. Gnewuch saw Dr. Pomajzl for
chiropractic treatment on seventy-eight occasions between
September 25, 2007, and August 31, 2009 (Tr. 366-76, 450).
Gnewuch also saw Dr. Wilcox on eight other occasions for
unrelated complaints, with little mention of back pain or
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Ms.
fibromyalgia in the brief notes, from March 3, 2008, to October
1, 2009 (Tr. 452-53, 378-79, 382, 385-86).
Ms. Gnewuch saw Linda Berry at the Mid-Plains Center
for a psychiatric interview on January 23, 2008 (Tr. 418).
Between February 6, 2008, and January 6, 2009, Ms. Gnewuch
reported for medication checks on nine occasions with Ms. Berry,
who noted Ms. Gnewuch’s pain:
“She brings a pillow in with her
and she can be noted to be in pain as she sits down . . . .;”
“She has difficulty with sleep at night in regard to her back
pain . . . .;” “She sits erect in the chair and continues to
display significant discomfort, which is in relation to her back
problems” (Tr. 400, 403, 405-06, 408, 410, 412, 415-16).
Teri Garey, employment specialist at the Goodwill
Industries of Greater Nebraska Employment Program, wrote on July
24, 2008, that Ms. Gnewuch has “applied for numerous jobs and has
been turned down because of her limitations on lifting, not being
able to sit long periods [of] time and not being able to stand
long periods of time. . . . I have run out of ideas and
suggestions for her and have discharged her from the Employment
Program. . . . [E]mployers she has applied with . . . have stated
they would not be able to hire her due to her physical health”
(Tr. 155).
On June 19, 2009, Dr. Wilcox wrote in a Medical Source
Statement that Ms. Gnewuch has “back pain, fibromyalgia,
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migraines, chronic sinusitis, and respiratory allergies” (Tr.
422).
Dr. Wilcox wrote that Ms. Gnewuch could frequently
lift/carry up to five pounds, occasionally lift/carry from sixten pounds, and never lift/carry eleven-fifty pounds (Tr. 422).
Dr. Wilcox wrote that Ms. Gnewuch could sit at one time for zero
hours and could stand/walk at one time for zero hours (Tr. 423).
During an entire eight-hour day, Ms. Gnewuch can sit for four
hours and stand/walk for four hours (Tr. 423).
Dr Wilcox stated
that this was because Ms. Gnewuch “can’t sit for a full hour or
stand/walk for a full hour” (Tr. 423).
Dr Wilcox stated that Ms.
Gnewuch’s complaints of pain were supported by “MRI - degen disc
disease 2/07 also Dr. Diamant’s findings/epidurals - Lincoln NE”
(Tr. 423).
Dr. Wilcox found Ms. Gnewuch’s complaints of pain to
be credible (Tr. 423).
Dr. Wilcox stated that Ms. Gnewuch is
taking four medications that cause drowsiness (Tr. 423).
Dr.
Wilcox stated that Ms. Gnewuch is not a malingerer (Tr. 424).
Dr. Wilcox wrote that Ms. Gnewuch will need to “lie
down or rest at unpredictable intervals during an 8-hour working
day,” six per eight hour shift for an average of one hour before
returning to work (Tr. 424).
Dr. Wilcox stated that she is
likely to be absent from work as a result of the impairments or
treatment more than four times a month (Tr. 424).
Dr. Wilcox
wrote that his prognosis for her was “chronic pain” (Tr. 425).
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A hearing before an administrative law judge (“ALJ”)
took place on June 22, 2009, to review Ms. Gnewuch’s SSD and SSI
benefits claims.
Ms. Gnewuch testified that she was not able to
work at her job at the American Red Cross after her snow sweeping
accident on January 31, 2007, other than a brief effort to rejoin
the job for just a few weeks (Tr. 23).
job, “My back hurt worse.
(Tr. 23).
When she went back to her
Anything I did seemed to bother it”
She stated that her fibromyalgia is “really bad across
the shoulders and arms, so whenever I try to do anything I’ll
have horrible spasms there.
stabbing me.
26).
Sometimes it feels like someone’s
Any time I use my arms a lot it does that” (Tr.
Ms. Gnewuch said that this affects her daily activities
because “I can’t do a lot with my hands and arms because I have
to –- well, as you see, my arms are resting on the table.
to have support for them.
I have
If I’m sitting on a chair without
support then it just pulls on the shoulders and they spasm the
whole time” (Tr. 27).
The ALJ posed the following hypothetical to the
vocational expert at the hearing:
Please assume a hypothetical
individual who is 60 years of age
with some college course credit and
past relevant work experience [of
Ms. Gnewuch]. This individual has
a combination of severe impairments
and retains a residual functional
capacity to lift and carry 20
pounds occasionally and 10 pounds
frequently. This individual
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retains an ability to stand, walk,
and sit six hours each. But this
individual must change positions as
needed. . . . This individual can
occasionally balance, stoop, kneel,
crouch, crawl and climb stairs and
ramps. This individual cannot
climb ropes, ladders or scaffolds.
This individual must avoid exposure
to extreme cold, vibration,
unprotected heights and dangerous
moving machinery. Given these
limitations and these alone, could
such an individual perform any of
the claimant’s past work?
(Tr. 34-45).
Based on the hypothetical, the vocational expert
stated, “I think the last job [at the American Red Cross,
presumably] was probably the mostly closely [sic] matching your
hypothetical” (Tr. 35).
Ms. Gnewuch’s attorney also asked a hypothetical
question of the vocational expert, based on “the medical source
statement completed by Dr. John Wilcox . . . Given those
limitations could she do any of the past work?” (Tr. 36).
vocational expert answered, “No” (Tr. 36).
The
Ms. Gnewuch’s
attorney then asked, “Would there be any other work in the
national economy that she could do with those limitations?” (Tr.
36-37).
The vocational expert answered, “No” (Tr. 37).
On September 2, 2009, the ALJ issued an opinion
upholding the denial of Ms. Gnewuch’s SSD and SSI benefits
claims.
The ALJ evaluated Ms. Gnewuch’s claim under the five-
step sequential process.
See 20 C.F.R. § 404.1520(a).
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At step
one, the ALJ found that Ms. Gnewuch had not engaged in
substantial gainful activity since January 31, 2007, the alleged
onset date of her disability.
At step two, the ALJ found that
Ms. Gnewuch’s impairments, degenerative disc disease, allergic
rhinitis, hypertension, and fibromyalgia, were severe.
At step
three, the ALJ found that Ms. Gnewuch’s impairments did not meet
one of the listed impairments found in 20 C.F.R. pt. 404, subpt.
P, app. 1.
Next, the ALJ determined that Ms. Gnewuch had an RFC
“to lift and carry 20 pounds occasionally and 10 pounds
frequently; stand, walk and sit 6 hours each in an 8-hour workday
with an option to change positions as needed; occasional
balancing, stooping, crouching, crawling, climbing ramps and
stairs; cannot climb ladders, ropes and scaffolds; and avoid
exposure to extreme cold, vibration, unprotected heights and
dangerous moving machinery” (Tr. 15).
In making this
determination, the ALJ found Ms. Gnewuch not credible “concerning
the intensity, persistence, and limiting effects” of her symptoms
(Tr. 16).
The ALJ found that Ms. Gnewuch’s “impairments are not
as limiting as she alleges” (Tr. 17).
The ALJ granted
substantial weight to the expert opinion evidence offered by the
state agency medical professional and to that of Dr. Diamant,
because those opinions were “most consistent with the overall
medical evidence of record” (Id.).
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The ALJ discounted the RFC
offered by Dr. Wilcox, which the ALJ characterized as “contrary
to his statements about treatment” and “an accommodation” (Id.).
At step four, the ALJ found that Ms. Gnewuch was able
to perform her past relevant work as a donor services specialist.
The ALJ found that Ms. Gnewuch’s past relevant work “does not
require the performance of work-related activities precluded by
[her RFC]” (Tr. 17).
Thus, the ALJ did not continue on to step
five, and the ALJ determined that Ms. Gnewuch was not disabled
and did not qualify for SSD benefits or SSI benefits.
After the date of the hearing, on October 22, 2009, Dr.
Pomajzl wrote in a Medical Source Statement that Ms. Gnewuch has
“cervical & lumbosacral subluxation complexes w/ assoc. disc
degeneration” (Tr. 443).
Dr. Pomajzl wrote that Ms. Gnewuch
could frequently lift/carry up to ten pounds, occasionally
lift/carry from 11-25 pounds, and never lift/carry 26-50 pounds
(Tr. 443).
Dr. Pomajzl wrote that Ms. Gnewuch could sit at one
time for less than one hour and could stand/walk at one time for
less than one hour (Tr. 444).
During an entire eight-hour day,
Ms. Gnewuch could sit for three hours and stand/walk for three
hours because “symptom complexes of low back pain, low back
spasms & leg pain are aggravated by prolonged sitting or walking”
(Tr. 444).
Dr Pomajzl stated that Ms. Gnewuch experiences pain
sufficiently severe to prevent her maintaining attention and
concentration 50+% of the time (Tr. 444).
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Dr Pomajzl stated that
Ms. Gnewuch’s complaints of pain were supported by “positive
chiropractic instrumentation readings, motion & static palpation
finding and degenerative changes as seen on x-ray” (Tr. 444).
Dr. Pomajzl found that Ms. Gnewuch’s complaints of pain were
credible and that Ms. Gnewuch is not a malingerer (Tr. 444-45).
Dr. Pomajzl wrote that Ms. Gnewuch will need to “lie
down or rest at unpredictable intervals during an 8 hour working
day” one to three times per eight-hour shift for an average of
one to two hours before returning to work (Tr. 445).
Dr. Pomajzl
stated that Ms. Gnewuch is likely to be absent from work as a
result of the impairments or treatment about four times a month
(Tr. 445).
He stated that her present condition will not change
and may worsen (Tr. 445).
On July 2, 2010, the Appeals Council declined Ms.
Gnewuch’s request for review; thus, the ALJ’s decision is now the
final decision of the SSA.
The Appeals Council considered
additional evidence submitted by Ms. Gnewuch, including a letter
from Ms. Gnewuch and the Medical Source Statement by Dr. Pomajzl.
Ms. Gnewuch timely filed a complaint with the United States
District Court for the District of Nebraska on August 23, 2010.
II.
A.
DISCUSSION
Standard of Review
When reviewing an ALJ’s decision, the Court “must
determine ‘whether the ALJ’s decision complies with the relevant
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legal requirements and is supported by substantial evidence in
the record as a whole.”
Martise v. Astrue, 641 F.3d 909, 920
(8th Cir. 2011) (quoting Halverson v. Astrue, 600 F.3d 922, 929
(8th Cir. 2010)).
“Substantial evidence” is:
relevant evidence that a reasonable
mind might accept as adequate to
support a conclusion. Substantial
evidence on the record as a whole,
however, requires a more
scrutinizing analysis. In the
review of an administrative
decision, the substantiality of
evidence must take into account
whatever in the record fairly
detracts from its weight. Thus,
the court must also take into
consideration the weight of the
evidence in the record and apply a
balancing test to evidence which is
contradictory.
Id. at 920-21 (quoting Halverson, 600 F.3d at 929).
“‘If, after
reviewing the record, the court finds it is possible to draw two
inconsistent positions from the evidence and one of those
positions represents the ALJ’s findings, the court must affirm
the ALJ’s decision.’”
Partee v. Astrue, 638 F.3d 860, 863 (8th
Cir. 2011) (quoting Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir.
2005)).
The Court may not reverse the ALJ’s decision “merely
because [the Court] would have come to a different conclusion.
Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011) (citing Finch
v. Astrue, 547 F.3d 933, 935 (8th Cir.2008)).
“bears the burden of proving disability.”
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The claimant
Id. at 615.
“[T]he Appeals Council must evaluate the entire record,
including any new and material evidence that relates to the
period before the date of the ALJ’s decision.”
Cunningham v.
Apfel, 222 F.3d 496, 500 (8th Cir., 2000) (citing 20 C.F.R.
§ 404.970(b)).
“The newly submitted evidence thus becomes part
of the ‘administrative record,’ even though the evidence was not
originally included in the ALJ’s record.”
Cunningham, 222 F.3d
at 500 (citing Nelson v. Sullivan, 966 F.2d 363, 366 (8th
Cir.1992)).
In this case, the Appeals Council reviewed the
additional evidence submitted but found no reason to review the
ALJ’s decision.
“In these circumstances, we do not evaluate the
Appeals Council’s decision to deny review, but rather we
determine whether the record as a whole, including the new
evidence, supports the ALJ’s determination.”
B.
Id.
Substantial Evidence Does Not Exist Supporting the ALJ’s
Decision.
1.
Credibility of Ms. Gnewuch.
An ALJ’s credibility findings must be supported by
substantial evidence.
(8th Cir. 1992).
Robinson v. Sullivan, 956 F.2d 836, 839
“In analyzing a claimant’s subjective
complaints of pain, an ALJ must examine: ‘(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; [and] (5)
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functional restrictions.’”
Dunahoo v. Apfel, 241 F.3d 1033, 1038
(8th Cir. 2001) (quoting Polaski v. Heckler, 739 F.2d 1320, 1322
(8th Cir. 1984)).
If the ALJ gives a “good” reason for not
crediting the claimant that is supported by the record, the Court
will defer to the ALJ’s judgment.
Robinson, 956 F.2d at 841.
Here, the ALJ found that “[Ms. Gnewuch’s] medically
determinable impairments could reasonably be expected to cause
the alleged symptoms” but that “[Ms. Gnewuch’s] statements
concerning the intensity, persistence and limiting effects of
these symptoms are not credible to the extent they are
inconsistent with [the ALJ’s own RFC] assessment” (Tr 16).
The ALJ’s credibility assessment is not supported by
substantial evidence on the record as a whole.
In explaining his
credibility assessment, the ALJ observed that Ms. Gnewuch “lives
alone and performs a wide range of activities of daily living:”
Ms. Gnewuch “cooks, does dishes, does laundry, cleans house but
does not vacuum, drives for one hour before stopping, goes
grocery shopping once a week, goes to church, reads, and watches
television” (Tr. 17, 14).
However, the ALJ omitted relevant details concerning
Ms. Gnewuch’s activities.
For example, as to cooking, Ms.
Gnewuch writes, “When I do cook, I make a large amt. so I can
freeze it and warm up later.
meals as large.
It takes as much energy to do small
I can’t stand and cook every meal” (Tr. 131).
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“[L]ifting pots and pans” makes the symptoms start (Tr. 133).
As
to dishes: “dishes - 1 sink full is all my back can tolerate.
Too much pain” (Tr. 131).
As to laundry: “1 load is about all I
can tolerate -- my back hurts.
I feel like I’ll lean to pull
clothes out of washer and dryer & never get up again . . . . 1
load kills my back” (Tr. 131).
“[D]oing laundry” makes the
symptoms start (Tr. 133).
As to cleaning house but not vacuuming: “by the time I
use my little Pledge grab it cloth on the kitchen floor my back
hurts.
I do not vacuum -- makes my back hurt” (Tr. 131).
“[T]rying to do more in house” causes the symptoms to worsen (Tr.
133).
Ms. Gnewuch has “had to restrict or stop” “keeping my
house clean” because of her symptoms (Tr. 134).
As to driving: “If I don’t have to do it too often, I
can drive for about 3 hrs if I stop and get out and walk every
hour.
Otherwise, if I had to go every day, it couldn’t be more
than 1 hr.
If my back is really hurting -- I have to help my
legs lift up to get my feet in the car” (Tr. 131).
The Eighth Circuit has found that the ability to
perform daily activities similar to Ms. Gnewuch’s is not
inconsistent with the inability to perform full-time employment.
“[W]e have held, in the context of a fibromyalgia case, that the
ability to engage in activities such as cooking, cleaning, and
hobbies, does not constitute substantial evidence of the ability
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to engage in substantial gainful activity.”
Brosnahan v.
Barnhart, 336 F.3d 671, 677 (8th Cir. 2003).
The next reason the ALJ cites for questioning Ms.
Gnewuch’s credibility is that Dr. Perry’s treatments “[give] her
quality of life that she did not have prior to treatment with Dr.
Perry” and “physical therapy, messages [sic] and injections have
reduced her pain symptoms” (Tr. 17).
This synopsis is a
misreading of the record as a whole.
Ms. Gnewuch has sought
relief from physical therapy, pain injections, chiropractic
treatment, massages, and medication on literally hundreds of
occasions, as cited above.
[The ALJ notes that Ms. Gnewuch “was
not interested in” suggested aquatic therapy (Tr. 16).
The ALJ
does not take note that Ms. Gnewuch “denied aqua therapy referral
. . . on the basis of finances” (Tr. 353).]
The evidence
suggests that Ms. Gnewuch consistently returns for more treatment
because the relief afforded, whatever the modality, is effective
but fleeting.
On the contrary, Ms. Gnewuch’s complaints of pain
are consistent with the objective medical evidence, as
examinations by Dr. Diamant and Dr. Perry revealed Ms. Gnewuch
suffered from disc degeneration and fibromyalgia.
Plaintiff’s complaints are also consistent with opinion
evidence in the record.
Dr. Diamant stated, “She has
fibromyalgia and has had back pain for years.”
(Tr. 205).
addition, “there is nothing likely that I can do that will
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In
probably lead to significant symptom relief” from her “likely
discogenic” pain (Tr. 205).
Dr. Pomajzl stated that he is
treating Ms. Gnewuch for “cervical & lumbosacral subluxation
complexes w/ assoc. disc degeneration.
headache & low back pain” (Tr. 443).
Subjective complaints of
Dr. Pomajzl found Ms.
Gnewuch’s complaints of pain to be credible; he said that she was
not a malingerer (Tr. 444, 445).
Dr. Wilcox found that Ms.
Gnewuch “always has neck and shoulder pains from her
fibromyalgia” (Tr. 392).
Based on the foregoing, the ALJ’s credibility
assessment is not supported by substantial evidence.
This Court
finds that when viewing the evidence in the record as a whole,
Ms. Gnewuch’s statements concerning “the intensity, persistence
and limiting effects of [her] symptoms” are credible.
2.
Opinion Testimony of Dr. Wilcox.
Ms. Gnewuch alleges that the ALJ erred in impermissibly
discounting the opinion testimony of Dr. Wilcox, her primary
physician.
Generally, “‘a treating physician’s opinion is
entitled to substantial weight.’”
Martise, 641 F.3d at 925
(quoting Brown v. Atrue, 611 F.3d 941, 951-52 (8th Cir. 2010)).
However, an ALJ “may justifiably discount a treating physician’s
opinion when that opinion ‘is inconsistent with the physician’s
clinical treatment notes.’”
Id. (quoting Davidson v. Astrue, 578
F.3d 838, 843 (8th Cir. 2009)).
Here, the ALJ concluded, “I do
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not give Dr. Wilcox’s opinion much weight as it appears to be an
accommodation to the patient” (Tr. 17).
The ALJ gave three
reasons why Dr. Wilcox’s opinion was to be discounted.
a.
The state agency medical opinion.
The ALJ accorded
substantial weight to the opinions of the state agency medical
consultants, Dr. Harley and Dr. Reed, whose RFC assessment he
adopted.
Dr. Harley and Dr. Reed did not examine Ms. Gnewuch;
they merely performed a review of her file.
Generally, opinions
of doctors who have not examined the claimant do not constitute
substantial evidence.
Nevland v. Apfel, 204 F.3d 853, 858 (8th
Cir. 2000).
Dr. Harley stated that he arrived at his RFC
limitations based on the fact that “Dr. Wilcox, her TS feels she
is capable of returning to work at a job where she can move about
or get up to stand or to change a position.
He does not
insinuate that she cannot work at all” (Tr. 343).
However, the
Court can find no evidence in the record that Dr. Wilcox made
such a statement.
Dr. Harley also writes that Dr. Wilcox’s RFC is not
supported by the evidence because “4/10/07 Dr. J. Wilcox, states
she is able to work provided she can sit or stand as needed.”
(Tr. 348).
The Court can find no evidence in the record that Ms.
Gnewuch saw Dr. Wilcox on April 10, 2007, or that Dr. Wilcox made
such a statement on that date.
Ms. Gnewuch did see Dr. Diamant
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on April 10, 2007, and Dr. Diamant did make a similar statement,
as quoted above.
Ms. Gnewuch did see Dr. Wilcox on April 23,
2007, when Dr. Wilcox noted, “She is trying to get back to work
at the blood mobile, but some of the restrictions that Dr.
Diamant recommended, such as sitting and standing whenever she
needs to, may not be available for her because of the work load”
(Tr. 210).
Thus, the ALJ placed substantial weight on Dr.
Harley, yet Dr. Harley seems to have based his decision to
discount Dr. Wilcox’s Medical Source Statement on a mistake:
Dr.
Harley is attributing Dr. Diamant’s statement to Dr. Wilcox.
With regard to the statement of April 10, 2007,
properly attributed to Dr. Diamant, it should be noted that at
the time of the statement, Ms. Gnewuch was, in fact, attempting
to return to work.
However, this amounted to “an unsuccessful
work attempt,” in the words of the ALJ (Tr. 13).
b.
RFC contrary to statements about treatment.
The
ALJ said that Dr. Wilcox’s RFC “is contrary to his statements
about treatment,” citing “Exhibit 15F, pp. 1-16" (Tr. 17).
However, the pages cited are brief notes of visits to Dr. Wilcox
from October 2007 to April 2009 for treatment of matters entirely
separate from Ms. Gnewuch’s disabilities (bowel problems, pelvic
exam, flu, etc.) (Tr. 378-393).
Nevertheless, even in these
brief notes, Dr. Wilcox states, “She always has neck and shoulder
pains from her fibromyalgia.
She has been seeing her
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chiropractor at least once a week for the last 4 weeks, but no
relief with the pain” (Tr. 392); “She is afraid that the
cholesterol medication will cause more muscle pain than she
already has” (Tr. 391); and “[S]he is afraid that the virus
combined with her fibromyalgia has caused even more pain than
usual.
She had a massage today but the pains are already coming
back” (Tr. 385).
While these particular notes primarily address
health concerns other than the fibromyalgia and back pain, they
are not “contrary to” Dr. Wilcox’s RFC.
c.
Making progress and improving with treatment.
The ALJ noted that “objective evidence indicates [Ms.
Gnewuch] is making progress and improving with treatment,” but
the ALJ did not explain how Ms. Gnewuch’s “progress” was
inconsistent with her statements regarding the symptoms she
experienced or her claim that she remains unable to perform fulltime work despite any alleged improvement (Tr. 17).
In any
event, the record is replete with objective evidence to the
contrary.
Dr. Diamant stated that “[Ms. Gnewuch] has
fibromyalgia and has had back pain for years. . . . [T]here is
nothing likely that I can do that will probably lead to
significant symptom relief” (Tr. 205).
Similarly, Dr. Perry
wrote, “As far as her fibromyalgia, I informed her that she will
continuously have these trigger point areas probably the rest of
her life and it is a matter of how often to treat and the
-24-
benefits she gains from them” (Tr. 253).
Dr. Pomajzl wrote, “Her
present condition will not change & may worsen” (Tr. 445).
This
Court finds that the record describes chronic ailments with ups
and downs and that ultimately, Ms. Gnewuch’s prognosis is not
improvement, but “chronic pain” (Tr. 425).
This Court finds that the ALJ erred in not giving the
RFC of Dr. Wilcox, as Ms. Gnewuch’s treating physician, great
weight, as subsequently substantiated by the RFC of Dr. Pomajzl.
3.
Ms. Gnewuch’s Donor Services Specialist Job.
As the ALJ points out, Dr. Diamant did write, “I do
think she is able to work provided that they will allow her to
sit/stand as tolerated” (Tr. 205).
This is consistent with Dr.
Pomajzl’s Medical Source Statement that “Ms. Gnewuch [needs] a
job which permits shifting positions at will from sitting,
standing, or walking” (Tr. 445).
Dr. Wilcox and Dr. Pomajzl both
found that Ms. Gnewuch’s complaints of pain were credible, and
both set her limitations in their respective RFC’s at a place
where the vocational expert at the hearing testified that there
would be no jobs available in the national economy.
Further, Ms.
Gnewuch’s Employment Specialist, Ms. Garey, found that Ms.
Gnewuch’s pain precluded job placement; the ALJ did not address
Ms. Garey’s opinion.
Based on the foregoing, this Court finds that the donor
services specialist job is not consistent with Dr. Diamant’s
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requirement that Ms. Gnewuch be able to sit or stand as needed.
In addition, the limitations set by the RFC’s of Dr. Wilcox and
Dr. Pomajzl do not allow for a job in the national economy,
according to testimony by the vocational expert at Ms. Gnewuch’s
hearing.
IV. CONCLUSION
The Commissioner’s decision will be vacated, and this
matter remanded for further findings consistent with this
opinion.
A separate order will be entered in accordance with
this memorandum opinion.
DATED this 14th day of September, 2011.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court
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