De La Cerda v. Astrue

Filing 34

MEMORANDUM AND ORDER regarding Complaint, 1 filed by Arturo De La Cerda. This matter is reversed and remanded for further proceeding in accordance with sentence four of 42 U.S.C. § 405(g). On remand the ALJ shall further develop the record in regard to whether a sufficient number of jobs exist in the national economy for an individual with De La Cerdas RFC, as defined by ALJ. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ARTURO DE LA CERDA,
Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner
of Social Security,
Defendant.

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4:10CV3252

MEMORANDUM AND ORDER

Plaintiff Arturo De La Cerda (“De La Cerda”), seeks review of a decision by the
defendant, Michael Astrue, the Commissioner of the Social Security Administration
(“Commissioner”), granting De La Cerda’s application for disability benefits under Title II
of the Social Security Act ("Act"), 42 U.S.C. §§ 401 et seq., and for supplemental security
income under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq., for a closed period from
January 16, 2003 to January 11, 2007, but denying his application in all other respects. After
carefully reviewing the record, the court finds the Commissioner’s decision should be
reversed in part and remanded.

I. PROCEDURAL BACKGROUND

De La Cerda applied for social security disability benefits on February 25, 2005,
claiming a severe back impairment, involving herniated discs in his lumbar spine, has
rendered him unavailable to work since January 16, 2003. Social Security Transcript (“TR”)
at 63 & 199-200. De La Cerda also asserts an undiagnosed mental pain disorder. (TR 114).
His claim was initially denied on April 11, 2005, and upon reconsideration on August 23,
2005. (TR 59).

De La Cerda filed a hearing request, and a hearing was held before an Administrative
Law Judge (“ALJ”) on August 16, 2007 (TR. 59). De La Cerda was represented by counsel
at the hearing. Testimony was received from De La Cerda and Deborah A. Determan, a
vocational expert (“VE”). The ALJ’s partially adverse decision was issued on January 31,
2008. (TR 72). De La Cerda’s request for review by the Appeals Council was denied on July
2, 2010, and again on December 6, 2010 (TR 6-9). His pending complaint for judicial review
was timely filed on December 23, 2010.

II. THE ALJ’S DECISION

The ALJ evaluated De La Cerda’s claims through all five steps of the sequential
analysis prescribed by 20 C.F.R. §§ 404.1520 and 416.920. (T.R. 63-72). As reflected in his
decision, the ALJ made the following findings:

1)

De La Cerda met the insured status requirements of the Social Security act as
of January 16, 2003, the date the claimant became disabled.

2)

De La Cerda has not engaged in substantial gainful activity since January 16,
2003, the alleged onset date.

3)

At all times relevant to the decision, De La Cerda had the following severe
combination of impairments: low back pain secondary to an L4-L5 fusion with
radiating pain to the left lower extremity, disc bulge and tear at L1-L2, and poly
substance abuse in remission (20 C.F.R. 404.1520(c) and 416.920(c)).

4)

From January 16, 2003 through January 11, 2007, the period which De La
Cerda was disabled, De La Cerda did not have an impairment or combination
of impairments that met or medically equaled an impairment listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d) and 416.920(d)).

5)

From January 16, 2003 through January 11, 2007, De La Cerda had the residual
functional capacity to perform an overarching range of sedentary work. In
addition, De La Cerda cannot push or pull levers repetitively with the upper or
lower extremities bilaterally; cannot reach above shoulders; cannot do neck
2

flexion/extension/lateral rotation either prolonged or repetitively. Prolonged is
defined as holding the neck in a rigid or fixed position for over 30 seconds
rigidity similar to looking down a rifle or microscope, and repetitive is defined
as moving the neck in those positions more than 45 degrees from the center,
and from point "a" to "b" and repeatedly without intervening movements and
that movement should occur in under 4 seconds. Bending twisting, and turning
is occasionally limited. He cannot crawl or stoop, and, less than occasionally
is rare. Squatting is possible and less than occasionally is rare. He cannot kneel.
He can climb stairs but needs 7 steps or less, and if more, needs to pause and
rest before proceeding. Gripping and grasping movements with the left
nondominant upper extremities are frequent; handling, fingering, and feeling
is frequent with the left extremity. The claimant should not use air or vibrating
tools or motor vehicles. He should not work around moving machinery (not
include fixed machines). He should not work around temperature extremes of
heat, humidity, or cold. The ability to understand, remember, and carry out
detailed instructions is markedly limited. The ability to understand, remember,
and carry out short and simple instructions is mildly to moderately limited. The
ability to make judgments on simple work related decisions is mildly limited.
The ability to interact with the public is moderately limited; but can become
markedly limited, and with co-workers and supervisors is moderately limited.
The ability to respond to work pressures in a usual work setting at a job learned
by simple demonstration that can be learned within 29 days is mildly limited.
The ability to respond to changes in the usual work setting is not limited. In
addition, when De La Cerda is seated, he needs to be able to shift in place
while remaining on task. De La Cerda can only sit 15 minutes a time; stand
only 5 minutes at a time; and sit up to 4 hours a day total. He would be absent
from work due to pain at least 2 days per week.
6)

From January 16, 2003 through January 11, 2007, De La Cerda was unable to
perform past relevant work (20 C.F.R. 404.1565 and 416.965).

7)

De La Cerda was born on July 8, 1964 and was 38 years old, which is defined
as a younger individual age 18-44, on the alleged disability onset date (20
C.F.R. 404.1563 and 416.963).

8)

De La Cerda has at least a high school education and is able to communicate
in English.

9)

Transferability of job skills is not an issue because De La Cerda’s past relevant
work is unskilled.

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10)

From January 16, 2003 through January 11, 2007, considering De La Cerda’s
age, education, work experience, and residual functional capacity, there were
no jobs that existed in significant numbers in the national economy that the
claimant could have performed (20 C.F.R. 404.1560(c), 404.1566, 416.960(c),
and 416.966).

11)

De La Cerda was under a disability, as defined by the Social Security Act, from
January 16, 2003 through January 11, 2007.

12)

Medical improvement occurred as of January 11, 2007, the date De La Cerda’s
disability ended.

13)

Beginning on January 11, 2007, De La Cerda has not had an impairment or
combination of impairments that meets or medically equals one of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.

14)

Beginning on January 11,2007, De La Cerda has had the residual functional
capacity to perform an overarching full range of sedentary work. In addition,
he cannot push or pull levers repetitively with the upper or lower extremities
bilaterally; cannot reach above shoulders; cannot do neck
flexion/extension/lateral rotation either prolonged or repetitively. Prolonged is
defined as holding the neck in a rigid or fixed position for over 30 seconds
rigidity similar to looking down a rifle or microscope, and repetitive is defined
as moving the neck in those positions more than 45 degrees from the center,
and from point "a" to "b" and repeatedly without intervening movements and
that movement should occur in under 4 seconds. Bending twisting, and turning
is occasionally limited. He cannot crawl or stoop, and, less than occasionally
is rare. Squatting is possible and less than occasionally is rare. He cannot kneel.
He can climb stairs but needs 7 steps or less, and if more, needs to pause and
rest before proceeding. Gripping and grasping movements with the left
non-dominant upper extremities are frequent; handling, fingering, and feeling
is frequent with the left extremity. The claimant should not use air or vibrating
tools or motor vehicles. He should not work around moving machinery (not
include fixed machines). He should not work around temperature extremes of
heat, humidity, or cold. The ability to understand, remember, and carry out
detailed instructions is markedly limited. The ability to understand, remember,
and carry out short and simple instructions is mildly to moderately limited. The
ability to make judgments on simple work related decisions is mildly limited.
The ability to interact with the public is moderately limited; but can become
markedly limited, and with co-workers and supervisors is moderately limited.
The ability to respond to work pressures in a usual work setting at a job learned
4

by simple demonstration that can he learned within 29 days is mildly limited.
The ability to respond to changes in the usual work setting is not limited. In
addition, when De La Cerda is seated, he needs to be able to shift in place
while remaining on task. He also needs to be able to stand 5 minutes every 30
minutes but can remain on task.
15)

The medical improvement that has occurred is related to the ability to work.

16)

Since January 11, 2007, De La Cerda’s age category has not changed.

17)

Continuing through January 11, 2007 to the present (January 31, 2008), De La
Cerda has been unable to perform past relevant work.

18)

Transferability of job skills is not an issue because De La Cerda’s past relevant
work is unskilled.

19)

Beginning on January 17, 2007, considering De La Cerda’s age, education,
work experience, and residual functional capacity, De La Cerda has been able
to perform a significant number of jobs in the national economy.

20)

De La Cerda’s disability ended on January 11, 2007.

5

III. ISSUES RAISED FOR JUDICIAL REVIEW

De La Cerda’s complaint requests judicial review of the ALJ’s decision that he was
no longer disabled as of January 11, 2007. De La Cerda raises the following arguments in
support of his claim for reversal:

1)

The ALJ improperly found De La Cerda experienced medical improvement as
of January 11, 2007;

2)

The ALJ failed to make proper credibility findings as to De La Cerda’s
testimony of subjective complaints of pain;

3)

The hypothetical questions posed to the Vocational Expert by the ALJ were
defective; and

4)

None of the jobs listed by the ALJ fall within the RFC adopted by the
commissioner.

IV. THE RECORD AND PROCEEDINGS BEFORE THE ALJ.

De La Cerda alleges he became disabled on January 16, 2003 because of herniated
discs in his lumbar spine. Plaintiff holds a GED. His pre-disability work consisted entirely
of unskilled labor. On January 31, 2008, the date of the ALJ’s decision, De La Cerda was
forty-three years old.

On or about January 16, 2003, De La Cerda injured his back while working at a
construction site. De La Cerda has not been engaged in any substantial gainful activity since

6

that date.1 He was diagnosed by Dr. Andrew Messer in February of 2003 with “diffuse soft
tissue type pain in the cervical, thoracic and lumbar region as well as chronic degenerative
disc disease at T12-L1 of questionable significance.” (TR 252). De La Cerda was ordered
to physical therapy. He again saw Dr. Messer in March of 2003.

De La Cerda underwent back surgery in the form of “an anterior and posterior
lumbosacral spinal arthrodesis at the L5-S1 lumbosacral level” in March of 2006. (TR. 399).
The operation was performed by Dr. Ric Jensen. De La Cerda left the hospital early, against
medical advice. On March 29, 2006 Dr. Jensen reported that De La Cerda’s “overall level
of back pain has improved significantly as a result of his operative fusion.” (TR. 574).

On July 22, 2006, Dr. Jensen made the following observations:

Plain film x-rays today demonstrate excellent appearance of [De La Cerda's]
fusion construct with no complicating features identified. [De La Cerda]
reports a significant reduction in his preoperative back pain. Said operative
therapy was performed 3/2/06. This in the form of a circumferential
lumbosacral spinal fusion at the L5-6 lumbosacral level. Arturo's surgical
incisions are healing nicely. He is functioning with minimal restrictions at this
juncture although does require pain medication after performing extensive
physical activities.
(TR. 571).

De La Cerda was referred to post operative physical therapy by Dr. Jensen. (TR. 573).
There is no record as to whether this physical therapy was completed and/or successful.

1

De La Cerda worked at McDonalds for three days in October of 2003 and for Labor Ready

for one day in October of 2003.

7

On September 14, 2006, De La Cerda underwent a psychological evaluation performed
by John Streibel, PsyD. (TR 413). Dr. Steibel noted that De La Cerda “has some obvious
physical concerns but testing would indicate some hypochondriacal features,” but De La
Cerda “will likely have some struggles with exploring any psychological response to the
bodily complaints.” (TR 415). He also noted De La Cerda “tends to endorse the entire gamut
of vague physical complaints. . . .” (TR 415). In his recommendation, Dr. Steibel stated that
De La Cerda’s physician “may wish to refer [De La Cerda] for a physical therapy evaluation.”
(TR 416).

Dr. Jensen again examined De La Cerda on September 20, 2006 and drafted two letters
dated September 28, 2006, neither directed to a specific person or agency. In one of the
letters, Dr. Jensen provides the following summary of De La Cerda’s progress:

This patient is now nearing a 6 month post-operative phase whereupon he has
achieved a significant reduction in his pre-operative back pain syndrome.
However, due to the rather extensive nature of [De La Cerda’s] lumbosacral
spinal pathology, it is unlikely that an isolated surgical fusion procedure will
produce complete and absolute resolution of [De La Cerda’s] low back pain
syndrome. However, I remain satisfied with [De La Cerda's] current response
to surgical therapy as such. [De La Cerda’s] surgical incisions have healed
nicely. He is now tapering off his narcotic pain medications. I remain with my
intention to have [De La Cerda] continue out patient physical therapy efforts
for the coming 2 months. I have given [De La Cerda] a detailed prescription
to undergo lumbosacral spinal physical therapy locally. I have also
recommended that [De La Cerda] be considered for long term/permanent
disability based upon his current symptom complex, what I perceive to be an
inability to perform anything more than sedentary physical activities, and my
opinion that [De La Cerda] will likely not be able to return to significant
physical activities in the workplace until at least 12 months from the time of his
operative therapy.
(TR 570).

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The second letter provides a somewhat different picture of De La Cerda’s prognosis:

[De La Cerda's] pre-operative back pain syndrome has improved significantly
over time although remains problematic. I do believe that within a reasonable
degree of medical certainty that Arturo's preoperative lumbosacral spinal
pathology was likely engendered per his direct involvement in workplace
activities and injuries which have resulted in operative therapy and multiple
conservative treatments thereof. At the present time, I feel that Arturo will be
unable to perform gainful employment for at least the foreseeable future (at
least 12 months). I also believe that Arturo will be incapable of performing
even sedentary activities at a level of anything greater than 2 to 4 hours per day.
Arturo will likely have a permanent partial impairment rating of at least 24
percent of the whole person (with respect to the lumbosacral spine) when he
reaches a maximum level of medical improvement, [March, 2007]. I hereby put
forth my recommendation that this patient be considered for long
term/permanent disability based upon the significant restriction in range of
motion within his lumbosacral spine and residual symptomatology including
back pain and pain upon protracted standing/ambulating (as well as an inability
to sit for protracted periods of time). This recommendation will remain enforce
[sic] until further notice.
(TR 399).

Dr. Jensen examined De La Cerda on December 26, 2006 and again put his findings
in a letter, (dated January 11, 2007), which provides:

Arturo appears to have experienced a modest benefit in his low back pain
syndrome as a result of said operative therapy. However, he continues to be
relatively incapacitated at times relating to his persistent, residual mechanical
back pain, as such. Arturo denies symptoms in the lower extremities which
would be consistent with radiculopathy. He has yet to return to work in any
form of gainful capacity.
I thoroughly examined Arturo during todays [sic] clinic visit. No focal sensory
or motor findings are identified in either Arturo's lower extremities. Arturo has
palpable tenderness over the lower lumbosacral paraspinal musculature (left
greater than right). Range of motion is limited in all planes. Aside from this,
9

there are no other focal findings of importance aside from palpable tenderness
over the lower lumbosacral paraspinal musculature, as noted. Plain film x-rays
of Arturo's lumbosacral spine performed during clinic visitation today
demonstrate excellent appearance of the fusion construct with no complicating
features identified.
At this point, I will plan to follow up with Arturo in final assessment in
approximately 3 months. At that time, a final, high resolution CT scan of
Arturo's lumbosacral spine will be performed. At that time, assessment of the
totality of fusion consolidation will be undertaken. In the meantime, it is likely
that Arturo will have to seek permanent disability and maintain in an off work
status. I do not foresee the potential that Arturo will be able to return to work
in any form of gainful capacity at anything more than sedentary levels of
activity.
(TR 428).

De La Cerda subsequently underwent a Functional Capacity Evaluation on January 26,
2007, performed by Randy Presler, PT. Presler opined that De La Cerda’s “findings were not
always consistent with anatomical and physiological principles” and due to Mr. De La
Cerda’s inconsistent efforts, the test was deemed invalid. (TR 431). Presler identified a
number of specific inconsistencies including:

•

De La Cerda displayed better low back range of motion when distracted than
he did during specific low back range of motion tests;

•

De La Cerda displayed better “gait pattern” when distracted than he displayed
when Presler was specifically testing De La Cerda’s walking ability;

•

Grip testing was inconsistent even though inconsistent grip is not a “result of
a lumbar injury/surgery.”

•

De La Cerda “displayed non-physiological/non-organic signs during his
physical exam including an overreaction to light palpation of the lumbar spine
. . . and an overreaction to low back and lower extremity movement.”

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•

De La Cerda’s pain response was “not a reliable indicator of his functional
ability yet he [used] pain complaints to limit all activities prior to physical signs
of stress on the spine or extremities.”

(TR 432).

Despite the inconsistencies, Presler opined that “based on his test results and a review
of medical information provided [to Presler] regarding [De La Cerda’s] injury, he should be
capable of functioning within at least the LIGHT physical demand category.” (TR 432).
Presler also made the following recommendations:

1.

Spinal forward bending should be limited to an Occasional basis
through his full motion but he should be capable of Frequent bending
through mid range. Prolonged, unsupported forward bent spinal
postures and forward bending combined with twisting movements
should be avoided.

2.

I recommend he intermittently alter his position between sitting and
standing/walking to minimize the effects of prolonged postures but he
is capable of tolerating these tasks on a Frequent basis.

(TR 433).

Presler also found De La Cerda “exhibited Symptom Exaggeration and Inappropriate
Illness Behavior during the evaluation.” (TR 436).

Due to the invalidity of the results,

Presler opined “his functional ability will need to be estimated based on other medical
findings or risk of harm issues.” (TR 435).

De La Cerda was evaluated by Dr. Jensen on April 11, 2007 in response to the finding
of the FCE performed by Mr. Presler. (TR 566). Dr. Jensen reported that De La Cerda was
complaining of “nearly incapacitating back pain” and that De La Cerda reports he could not

11

“ambulat[e]” or sit for long periods of time. (TR 566). Dr. Jensen also noted that De La
Cerda reported being unable to perform any workplace functions for more than 10 to 15
minutes at a time. (TR 566). He also stated that while “[De La Cerda] did experience a
modicum of improvement in his low back” as a result of his surgery, it “failed to produce a
significant improvement in his functional capacity.” (TR 566). Finally, despite Mr. Presler’s
findings in the FCE, Dr. Jensen opined that Arturo was still limited in function and unable
“to return to gainful employment at anything more than a sedentary level of activity.” (TR
566).

On April 12, 2007, De La Cerda underwent a Psychiatric Diagnostic Evaluation,
performed by Bruce D. Gutnik, M.D. Dr. Gutnik conducted a comprehensive review of De
La Cerda’s medical records. (TR 442-52). Based on his review of the medical records and
his psychiatric evaluation of De La Cerda, Dr. Gutnik opined:

[I]n my opinion, with a reasonable degree of medical certainty, Mr. De La
Cerda has a Pain Disorder Associated with Psychological Factors. This implies
that psychological factors have the major role in the onset, severity,
exacerbation or maintenance of reported pain. Mr. De La Cerda was dramatic
in his pain behaviors and pain descriptions in my office. He described pain
essentially from his neck down to the bottom of his feet, including his arms.
Records indicate that Mr. De La Cerda had complaints of severe pain without
increase in blood pressure or pulse. Physical examinations could not
objectively support his pain. A functional capacity evaluation was invalid,
indicating symptom exaggeration. Mr. De La Cerda has not been fully
compliant with treatment. An MMPI showed hypochondriacal features and that
Mr. De La Cerda would use physical complaints to control others. Based on
observations and the past medical records, I believe that Mr. De La Cerda has
a Pain Disorder Associated with Psychological Factors. This Pain Disorder is
not a result of his reported injury, but rather, the result of unconscious
secondary gain.
(TR 453).

12

Dr. Gutnik further opined that De La Cerda was dependent on opioids and engaged in
drug seeking behaviors. (TR 544). Additionally, he determined “[t]here are no work
restrictions placed on Mr. De La Cerda from a psychiatric perspective based on his . . . work
injury.” (TR 454-55).

De La Cerda continued to receive various treatments, most frequently for pain
allegedly associated with his back. Many of these treatments constituted trips to the
emergency room and/or resulted in De La Cerda receiving pain killers. (see, e.g., TR 601,
604, 614, 616, 618, 620, 621, 629, 631, 730 & 745). Eventually one of the examining
physicians expressed some concern about the frequency with which De La Cerda was visiting
the emergency room and requesting narcotics and his “vague stories about [De La Cerda]
cannot tolerate anti-inflammatories.” (TR 755).

At the hearing, De La Cerda testified his use of Percocet and a Fentanyl patch does not
control his pain and that he requires trips to the emergency room. (TR 116-17). He also
testified that in the six months leading up to the hearing his health had declined and there
were no times leading up to the ALJ hearing that De La Cerda was pain free. (TR 117-19).
Further, the ALJ accepted as an offer of proof that De La Cerda’s “pain syndrome has gotten
a lot worse and harder to deal with” after his 2006 surgery. (TR 121).

The ALJ then posed questions based on hypothetical individuals to the VE. The first
was based on the following assumptions:

This individual has a vocational profile identical to the claimant's. This
individual has the following residual functional capacity. This individual has
an overarching residual functional capacity for a full range of sedentary work
with the following additional functional restrictions. This individual cannot
push or pull leverage repetitively with his upper or lower extremities
bilaterally. This individual cannot reach above his shoulders. This individual
13

cannot perform neck flexion or extension or lateral rotation that is either
prolonged or repetitive. I'll define prolonged. Prolonged is having to hold the
neck in a rigid fixed position for more than 30 seconds. The rigidity of the neck
position would be similar to the rigidity that would be required to look down
a microscope or to look down a rifle sight. Repetitive is defined as follows.
Repetitive is moving the neck in any of those positions more than 60 degrees
from center, that is to say, moving straight forward. I'm sorry, 45 degrees, and
it moves from point A to point B returning to point A and returning to point B
with no intervening movements. And that movement AB, AB would be, would
be, would occur in less than four seconds. There is no other limitation with
regard to neck flexion, extension, or lateral rotation. Bending, twisting, and
turning are limited to occasional. This individual cannot crawl. Stooping is
possible but is less than occasional. I would say rare. Squatting is possible but
less than occasional. I would say rare. He cannot kneel. He can climb stairs, but
that flight of stairs would have to be seven steps or less. A flight of stairs
greater than seven steps would require him to have the ability to pause and rest
before proceeding. Gripping and grasping movements with his left upper
extremity, non-dominant, are limited to frequent. Handling, fingering, and
feeling is with the left non-dominant extremity, limited to frequent. He cannot
use air or vibrating tools. He cannot use motor vehicles. He cannot work
around moving machinery. I define moving machinery as, machinery which is
mobile. It does not include fixed machinery even if that machinery has exposed
parts and even if those exposed parts extend out beyond the base of the
machinery such as robotic arm. He cannot work in temperature extremes of
heat, humidity, or cold. These are non-exertional mentally based limitations.
And the limitations are not based upon cognitive dysfunction but are based
upon a pain syndrome that, that affects the ability to do these limitations.
Nevertheless for our purposes, they are functional limitations. I want to put it
into context for you. The ability to understand, remember, and carry out
detailed instructions is markedly limited. The ability to understand and
remember short simple instructions is mildly to moderately limited. To carry
them out is mildly limited. The ability to make judgments on simple work
related decisions is mildly limited. The ability to interact with the public and
co-workers is as follows. With the public, it's moderate but can become
marked. With co-workers, is moderate. With supervisors, is mild, mild to
limited. The ability to respond to work pressure in a usual work setting at a job
which is, which can be learned by simple demonstration up to 29 days is mildly
limited. To respond to changes in the usual work setting is no limitation.

14

(TR 135-37).

The VE identified three jobs that such an individual could perform in the national
economy: (1) a document preparer; (2) a cutter and paster; and (3) an addresser. (TR 138).
The ALJ then asked the VE to assume the same hypothetical limitations with additional
limitations including: (1) the ability to sit and shift, but remain on task and (2) the ability to
stand for five minutes every half an hour, but still remain on task. (TR 139). The VE
responded that the three positions would still apply. (TR 139).

The final hypothetical posed to the VE involved the same assumptions as before with
the following additional limitations: (1) the individual can only sit 15 minutes at any one
time; (2) the individual can only stand at any one time for five minutes; (3) he cannot lift
while seated; (4) he can only sit for up to four hours a day; and (5) he will be absent from
work due to pain at least two days a week. (TR. 139). The VE opined that such a
hypothetical person would be “precluded from competitive employment.” (TR 139).

The ALJ’s decision was issued on January 31, 2008. Thereafter, De La Cerda
submitted additional evidence and argument along with his request for review by the Appeals
Council. According to the Appeals Council decision, it followed the rules requiring it to
review the ALJ’s decision for a number of reasons.2 (TR 6). After doing so, on December 6,
2010, the Appeals Council determined there was “no reason under our rules to review the
Administrative Law Judge’s decision.” (TR 6). De La Cerda’s request for review was denied.

2

Those reasons include: (1) whether the ALJ abused his discretion; (2) there is an error of

law; (3) the ALJ’s decision is not supported by substantial evidence; (4) broad policy or procedural
issues that may affect public interest; or (5) whether new and material evidence is contrary to the
weight of all the evidence in the record. (TR 6-7).

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V. LEGAL ANALYSIS

Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), provides for judicial
review of a "final decision" of the Commissioner under Title II, which in this case is the ALJ's
decision. A denial of benefits by the Commissioner is reviewed to determine whether the
denial is supported by substantial evidence on the record as a whole. Hogan v. Apfel, 239 F.3d
958, 960 (8th Cir. 2001).

If substantial evidence on the record as a whole supports the Commissioner's
decision, it must be affirmed. Choate v. Barnhart, 457 F.3d 865, 869 (8th Cir.
2006). "‘Substantial evidence is relevant evidence that a reasonable mind would
accept as adequate to support the Commissioner's conclusion.'" Smith v.
Barnhart, 435 F.3d 926, 930 (8th Cir. 2006) (quoting Young v. Apfel, 221 F.3d
1065, 1068 (8th Cir. 2000)). "The ALJ is in the best position to gauge the
credibility of testimony and is granted deference in that regard." Estes v.
Barnhart, 275 F.3d 722, 724 (8th Cir. 2002).
Schultz v. Astrue, 479 F.3d 979, 982 (8th Cir. 2007). Evidence that both supports and detracts
from the Commissioner's decision must be considered, but the decision may not be reversed
merely because substantial evidence supports a contrary outcome. Wildman v. Astrue, 596
F.3d 959 (8th Cir. 2010).

1.

Medical improvement.

De La Cerda argues the decision of the ALJ should be reversed because there is not
substantial evidence on the record as a whole to support the ALJ’s decision De La Cerda
experienced “medical improvement” on January 11, 2007. Under the federal regulations “[a]
medical improvement is defined as a decrease in the medical impairments present at the time
of the most recent favorable medical condition.” Buress v. Apfel, 141 F.3d 875, 879 (8th Cir.
1998)(citing 20 C.F.R. 404.1594(b)(1).
16

In support of his decision, the ALJ contrasted the opinions of Dr. Jensen and Dr.
Gutnik. The ALJ specifically cited Dr. Jensen’s letter of January 11, 2007 in which Dr.
Jensen noted that the fusion of De La Cerda’s back was “solid despite some tenderness” and
that he did not foresee De La Cerda being able to “return to work in any form of gainful
capacity at anything more than sedentary levels of activity.” (TR 428). The ALJ noted:

Dr. Jensen says that sedentary work is the best of [sic] the claimant can do, but
he gave no other limitations on January 11, 2007 such as the earlier limitations
preventing more than four hours of work prior to and following his surgery
(compare exhibit 16F with exhibit 13F and 12F). He could have given
additional limitations, but he did not, and the undersigned finds that this
supports the conclusions in this decision. In addition, Dr. Jensen's comments
in January 2007 are consistent with physical therapy notes taken after the end
of disability (see exhibits 16F and 17F).

In addition, the ALJ briefly cited to the FCE performed by Presler in which Presler
opined De La Cerda “functioned in at least the light physical demand category,” while
acknowledging that the RFC was ultimately deemed invalid due to inconsistencies in Del La
Cerda’s testing behaviors (TR 70).

As to the “undiagnosed mental pain disorder,” the ALJ relied on the opinions of Dr.
Gutnik and Dr. Striebel, both of whom found “no basis for the severity of the claimant’s
complaints on a psychiatric basis.” (TR 70). In spite of acknowledging De La Cerda had a
“pain disorder,” Dr. Gutnik opined that “from a psychiatric perspective, Mr. De La Cerda can
return to work on a full-time basis without restrictions at any time.” (TR 455).

After a careful review of the entire record, the court finds substantial evidence on the
record exists to support the ALJ’s conclusion that De La Cerda experienced medical
improvement as of January 11, 2007.

17

The opinions of Dr. Jensen, as a treating physician, are entitled to controlling weight
so long as they do not conflict with other evidence on the record. See Prosch v Apfel, 201
F.3d 1010, 1012-13 (8th Cir. 2000).

After surgery Dr. Jensen found De La Cerda

experienced a significant reduction in his preoperative back pain, (TR 570, 571 & 574), and
was functioning with minimal restrictions (TR 571). After the surgery, Dr. Jensen opined that
De La Cerda could initially only perform “sedentary” work for a maximum of four hours a
day. (TR 399).

Dr. Jensen’s opinion regarding to what extent De La Cerda may, or may not be
disabled, is not due any deference “because a finding of disability is one reserved for the
Commissioner.” Robson v. Astrue, 526 F.3d 389, 393 (8th Cir. 2008). However, even
assuming Dr. Jensen’s opinion regarding De La Cerda’s qualification for disability did merit
any deference, his conclusion that De La Cerda is completely disabled is at odds with his
opinion that De La Cerda could engage in “sedentary” work. Dr. Jensen excluded the time
limitation in the January 11, 2007 evaluation, simply stating De La Cerda’s future work
activity would still be limited to “sedentary” work, and on other occasions, Dr. Jensen’s
reports did not include any further restriction, including any sort of time limit. (TR 428, 566
& 570). Contrary to De La Cerda’s arguments, Dr. Jensen was not “silent” on De La Cerda’s
capacity to return to work. Dr. Jensen expressly opined on that very topic, distinguishing this
case from those cited by De La Cerda: Hutsell v. Massanari, 259 F.3d 707 (8th Cir. 2001)
and Lauer v. Apfel, 245 F.3d 700, 705 (8th Cir. 2001).

Dr. Jensen’s opinion that De La Cerda was disabled is also contradicted by his medical
findings on the record. Dr. Jensen indicated the fusion surgery was successfully completed,
noting “[p]lain x-rays today demonstrate excellent appearance of De La Cerda’s fusion
construct with no complicating features identified.” (TR 428 & 571). This opinion was
initially provided on July 22, 2006 and was reiterated on January 11, 2007. In July of 2006,

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Dr. Jensen reported that De La Cerda was “functioning with minimal restrictions . . . although
[he required] pain medication after performing extensive physical activities. (TR 571). In
his January letter, Dr. Jensen noted that aside from some palpable tenderness and limited
range of motion, there were no other focal findings of importance. (TR 428). Thus, all of the
physical signs pointed to a successful surgery and improvement. In fact, as evidenced by Dr.
Jensen’s letter of April 17, 2007, Dr. Jensen’s opinion about De La Cerda’s functional
capacity appears to be almost entirely dependent on De La Cerda’s subjective allegations of
pain, as conveyed to Dr. Jensen. (TR 566). As discussed below, the ALJ had ample evidence
to find De La Cerda’s subjective statements of pain to be less than credible and not in accord
with De La Cerda’s physical condition.

Other evidence of record, including the FCE performed on January 26, 2007 in which
the evaluator opined De La Cerda could engage in at least “light physical” activity, supports
the conclusion that the fusion surgery produced medical improvement which allowed De La
Cerda to engage in substantial gainful activity on January 11, 2007. Accordingly, there is
sufficient evidence of record to support the ALJ’s conclusion that De La Cerda experienced
medical improvement as of January 11, 2007.

2.

The ALJ’s determination of credibility.

“It is the ALJ’s responsibility to determine a claimant’s RFC based on all relevant
evidence, including medical records, observations of treating physicians and others, and
claimant’s own descriptions of [her] limitations.” Anderson v. Shalala, 51 F.3d 777, 779 (8th
Cir.1995). Before the ALJ determines an applicant’s RFC, the ALJ must determine the
applicant’s credibility, because subjective complaints play a role in assessing the RFC. Ellis
v. Barnhart, 392 F.3d 988, 995-96 (8th Cir. 2005). See also, Pearsall v. Massanari, 274 F.3d
1211, 1218 (8th Cir. 2001) (“Before determining a claimant’s RFC, the ALJ first must

19

evaluate the claimant’s credibility.”). An ALJ “is not required to discuss every piece of
evidence submitted,” and his “failure to cite specific evidence [in the decision] does not
indicate that such evidence was not considered.” Black v. Apfel, 143 F.3d 383, 386 (8th Cir.
1998). “If an ALJ explicitly discredits the claimant’s testimony and gives good reason for
doing so, we will normally defer to the ALJ’s credibility determination.” Gregg v. Barnhart,
354 F.3d 710, 714 (8th Cir. 2003).

The ALJ must apply the factors found in Polaski v. Heckler, 739 F.2d 1320 (8th Cir.
1984) in assessing the credibility of a claimant’s subjective complaints, including: (1) the
claimant’s daily activities; (2) the duration frequency and intensity of pain; (3) precipitating
and aggravating factors; (4) dosage, effectiveness and side effects of medication; and (5)
functional restrictions. Polaski, 739 F.2d at 1322. An ALJ is not required to discuss each
of these factors. It is sufficient that the ALJ acknowledges and considers the factors prior
to discounting the claimant’s subjective complaints. Halverson v. Astrue, 600 F.3d 922, 932
(8th Cir. 2010) (quoting Moore v. Astrue, 572 F.3d 520, 524 (8th Cir. 2009)).

The ALJ stated he did not find De La Cerda’s complaints of pain and his “alleged
limitations at the end of the closed period” completely credible (TR 71). Under the pertinent
regulations, the ALJ must provide reasons for such a finding. 20 C.F.R. 404.1529 & 416.929;
Polanski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1983).

The ALJ provided several reasons for finding De La Cerda’s complaints to be less than
completely credible. He noted that De La Cerda’s complaints of pain are not consistent with
the physical findings of Dr. Jensen’s report in January of 2007, in which “other than some
limitations in range of motion, Dr. Jensen identified no other focal findings of importance.”
(TR 70 & 428).

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De La Cerda argued he suffers from an undiagnosed pain syndrome, but as noted by
the ALJ, the record does not support such a finding. The ALJ found that “symptom
exaggeration” or “substance abuse” were more likely the cause. (TR 70). There is ample
support in the record for these findings. For instance, in September of 2006 Dr. Striebel
completed a psychological examination and noted the testing “indicate[d] some
hypochondriacal features” manifested by De La Cerda’s tendency to “endorse the entire
gamut of vague physical complaints.” (TR 425).

The ALJ also considered the report of Dr. Gutnik’s psychiatric examination of De La
Cerda in which Dr. Gutnik reported:

Mr. De La Cerda was dramatic in his pain behaviors and pain descriptions in
my office. He described pain essentially from his neck down to the bottom of
his feet, including his arms. Records indicate that Mr. De La Cerda had
complaints of severe pain without increase in blood pressure or pulse. Physical
examinations could not objectively support his pain. A functional capacity
evaluation was invalid, indicating symptom exaggeration. Mr. De La Cerda has
not been fully compliant with treatment. An MMPI showed hypochondriacal
features and that Mr. De La Cerda would use physical complaints to control
others.
(TR 453).

It is true Dr. Gutnik opined De La Cerda suffered from a “Pain Disorder Associated
with Psychological Factors.” (TR 452). However, in the same report Dr. Gutnik found from
a “psychiatric perspective” De La Cerda could “return to work on a full time basis without
restrictions at any time” seemingly downplaying the impact of the Pain Disorder. (TR 455).
In addition, the ALJ noted that the evidence of potential drug addiction and drug seeking
behavior in the record added “complications” to the Pain Disorder diagnosis provided by Dr.
Gutnik.

The record supports this concern, including suggestions De La Cerda has
21

downplayed or completely denied his use of alcohol despite evidence to the contrary.
Compare (TR 123 &127)(De La Cerda testified that he had not consumed alcohol since July
19, 2006) with (TR 462)(treatment notes from November 2006 where De La Cerda admitted
to drinking too much alcohol). There is also evidence on the record concerning his “drug
seeking” behavior and his continued use of pain medications despite the fact he states the pain
medications do not help him significantly. (TR 454). However, when his prescription for
the pain killer Kadian was lost and the physician would not refill it, De La Cerda threatened
to take street drugs to control the pain. (TR 522). Dr. Jensen also expressed concern over this
behavior. (TR 569). Thus, the ALJ had reason to question the Pain Syndrome diagnosis as
being derived more from De La Cerda’s possible opiate addiction and exaggeration of his
symptoms.

Finally, the FCE De La Cerda participated in was deemed invalid for a number of
reasons, including symptom exaggeration. For instance, Presler observed De La Cerda
overreacted to “light palpation of the lumbar spine,” “overreact[ed] to lower extremity
movement,” and “[h]is response to pain did not always correlate with the physical findings,
movement patterns and postures.” (TR 432). De La Cerda argues that the FCE is of limited
evidentiary value. Of course, the reason the FCE was deemed invalid was because the
physical therapist conducting the exam observed what he believed to be exaggerations of pain
and less than a full effort by De La Cerda. These observations support the ALJ’s finding that
De La Cerda was not entirely credible.

3.

Vocational expert testimony as substantial evidence.

A vocational expert’s testimony is generally “substantial evidence only when the
testimony is based on a correctly phrased hypothetical question that captures the concrete
consequences of the claimant’s deficiencies.” Porch v. Charter, 115 F.3d 567,572 (8th Cir.
22

1997)(internal citations omitted). However, where the VE responds to a hypothetical that
“captures the consequences of [the claimant’s] deficiencies” the VE’s testimony will be
considered substantial evidence. Cox v. Astrue, 495 F.3d 614, 621 (8th Cir. 2007). De La
Cerda argues that the testimony of the VE cannot constitute substantial evidence in this case
because the VE’s testimony was based on hypothetical questions that did not contain two
restrictions which the FCE found De La Cerda to have. De La Cerda points to the following
recommendations in the 2007 FCE: (1) De La Cerda should avoid “[p]rolonged, unsupported
forward bent spinal postures;” and (2) the FCE recommends De La Cerda change his position
from sitting to “standing/walking.” De La Cerda believes the hypothetical questions posed
to the VE contained restrictions inconsistent for those findings.

The court is unpersuaded by De La Cerda’s argument. As an initial matter, the FCE
referred to by De La Cerda was deemed invalid due to inconsistent results and De La Cerda’s
perceived lack of effort. Thus, it is of minimal evidentiary value to him.

However, even if the FCE had not been deemed invalid, the hypotheticals posed by the
ALJ are not inconsistent with the terms of the FCE. For instance, the FCE report did not
recommend that De La Cerda be allowed to periodically stand and walk.

The FCE

recommended that he alter his position “between sitting and standing/walking to minimize
the effects of prolonged postures but he is capable of tolerating these tasks on a Frequent
basis.” (TR. 433). There is no express requirement for walking and the hypothetical posed
by the ALJ takes into account intermittent breaks for standing. Accordingly, it is not
inconsistent with the FCE.

Similarly, De La Cerda attempts to draw a distinction between the suggestion on the
FCE that De La Cerda should avoid “[p]rolonged, unsupported forward bent spinal postures
and forward bending combined with twisting movements,” (TR 433) and the restrictions in
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the hypothetical that “[b]ending, twisting, and turning are limited to occasional.” (TR 136).
The court sees no inconsistency between these instructions and further notes that the
hypothetical posed by the AJL also included instructions that De La Cerda could not “perform
neck flexion or extension or lateral rotation” that is either prolonged or repetitive. This
restriction specifically addresses De La Cerda’s concerns with clerical work and thus,
“captured the consequences of [De La Cerda’s] deficiencies.” Cox, 495 F.3d at 621.

4.

The Vocational Expert’s testimony.

Upon a finding of medical improvement, the ALJ then must determine whether the
medical improvement allowed De La Cerda to engage in substantial gainful activity. De La
Cerda argues that the occupations proposed by the VE exceeded the RFC as determined by
the ALJ. Specifically, De La Cerda argues all of the jobs cited by the VE require reasoning
at Level 2 and, under the ALJ’s RFC determination, De La Cerda cannot perform jobs that
require reasoning at Level 2.

In the hypothetical questions posed by the ALJ, he described De La Cerda’s “ability
to understand, remember, and carry out detailed instructions is markedly limited. The ability
to understand and remember short simple instructions is mildly to moderately limited. To
carry [short simple instructions] out is mildly limited.” (TR. 137). The VE opined that De
La Cerda could perform the jobs of “cutter-and-paster” (DOT #249.587-014) and “addresser”
(DOT #209.587-010) both of which require reasoning at level 2. 3

Under the DOT’s

Appendix C, such reasoning is defined as the ability to “apply common sense understanding

3

The VE also opined that De La Cerda could be a “document preparer.” This job requires

level 3 reasoning according to the DOT. The Commissioner apparently concedes that based on the
RFC, De La Cerda could not undertake occupations which require reasoning at level 3.

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to carry out detailed but uninvolved written or oral instructions [and] . . . [d]eal with problems
involving a few concrete variables in or from standardized situations.” De La Cerda argues,
based on the RFC, he cannot perform the occupations proposed by the VE because he is
unable to understand or carry out any detailed instructions, as required by the DOT for level
2 reasoning.

Under 8th Circuit law, an applicant’s ability to follow only simple job instructions or
perform simple job tasks – as opposed to detailed instructions or tasks – is not inconsistent
with level 2 reasoning. Moore v. Astrue, 623 F.3d 599, 604 (8th Cir. 2010) (finding that
simple job instructions are not necessarily inconsistent with uninvolved detailed instructions).
However, De La Cerda’s ability to follow and/or carry out even simple instructions or tasks
was further limited by the ALJ, thus Moore does not address the question posed in this case.
That is, can an individual who has a limited ability to understand and complete even simple
tasks, engage in jobs that require level 2 reasoning under the DOT?

While it is true the definitions of the levels of reasoning found in the DOT amount to
“the upper limit across all jobs in the occupational category,” (Moore, 623 F.3d at 604), the
VE in this case was not asked to further explain why she felt someone with a limited ability
to follow and carry out simple instructions and tasks would be able to perform the cited jobs
requiring level 2 reasoning, i.e. the ability to carry out detailed, but uninvolved instructions.
Further, the Commissioner cites to no authority holding an individual with a restricted ability
to understand and perform even simple instructions is capable of engaging in an occupation
requiring level 2 reasoning. Because there is an unexplained conflict between the VE’s
testimony and the DOT, this case should be remanded for a finding of whether any jobs exist
in the national economy that De La Cerda can perform given the limitations to his ability to
understand , remember and carry out, even simple instructions. See Jones v. Astrue, 619
F.3d 963, 978 (8th Cir. 2010) (finding where the VE testimony “ ‘conflicts with the DOT, the
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DOT controls when the DOT classifications are not rebutted with VE testimony which
demonstrates specific jobs . . . may be ones that a claimant can perform.’ ” (quoting Dobbins
v. Barnhart, 182 Fed. Appx. 618, 619 (8th Cir. 2006)).

Accordingly, IT IS ORDERED:

1)

This matter is reversed and remanded for further proceeding in accordance with
sentence four of 42 U.S.C. § 405(g).

2)

On remand the ALJ shall further develop the record in regard to whether a
sufficient number of jobs exist in the national economy for an individual with
De La Cerda’s RFC, as defined by ALJ.

DATED this 11th day of January, 2012.

BY THE COURT:

s/ Cheryl R. Zwart
United States Magistrate Judge

*This opinion may contain hyperlinks to other documents or Web sites. The U.S. District
Court for the District of Nebraska does not endorse, recommend, approve, or guarantee any third
parties or the services or products they provide on their Web sites. Likewise, the court has no
agreements with any of these third parties or their Web sites. The court accepts no responsibility for
the availability or functionality of any hyperlink. Thus, the fact that a hyperlink ceases to work or
directs the user to some other site does not affect the opinion of the court.

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