Schulte v. Astrue

Filing 23

MEMORANDUM AND ORDER- The determination of the defendant that plaintiff is not disabled is reversed. The defendant is ordered to remand this case for a calculation of disability benefits due and owing to the plaintiff. The plaintiff may file a motion for attorney fees in this case. The court will enter a judgment in conjunction with this Memorandum and Order. Ordered by Judge Joseph F. Bataillon. (MKR)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JEFFREY J. SCHULTE,
Plaintiff,

4:12CV3026

vs.
MEMORANDUM AND ORDER
MICHAEL J. ASTRUE, Commissioner of
Social Security;
Defendant.

This matter is before the court on plaintiff’s complaint, Filing No. 1, challenging
the denial of Social Security disability benefit’s application.

Jurisdiction is invoked

pursuant to 42 U.S.C. § 405. Plaintiff filed an application for disability under Title II of
the Social Security Act, 42 U.S.C. § 401 et seq., on January 18, 2011.

The

administrative law judge (“ALJ”) held a hearing on October 26, 2011, and thereafter
denied plaintiff’s application for benefits.

Plaintiff appealed and the Commissioner

denied his claim on December 27, 2011.
BACKGROUND
Plaintiff was born in 1958. He states he became disabled to work on December
31, 2007. Prior to that, he worked as a caretaker and did maintenance for a family
corporation. Plaintiff did not graduate from high school and did not obtain a GED.
Plaintiff testified that he is 6 feet tall and weighs 250 pounds. At the hearing plaintiff
testified that he cannot return to work because his back gets tired, his shoulders hurt,
and walking hurts his knees.

Plaintiff testified that he cannot pick up his young

grandsons, cannot stand at the kitchen counter for 15 minutes on a bad day, and would
have to walk around 15 to 20 minutes before he could resume standing. He has to go

to bed and lay flat with a heating pad when in pain which occurred as often as two or
three times per week. (Filing No. 10, Transcript (“Tr.”) 35-38). On a good day he could
not sit in a chair for more than an hour and only 10 to 15 minutes on a bad day. On a
good day he could get around for about 3 to 4 hours a day, but on a bad day he spends
most of the time on a heating pad. He can lift at most 5 to 8 pounds, avoids bending or
crouching, and has difficulty reaching. He has multiple muscle spasms which reach a
10 on the pain scale on a bad day. Plaintiff testified he did a very limited amount of
hunting and he has been unable to golf for at least five years.
He sought treatment from Dr. Michael Morrison in 1995 for his lower back and
left leg. An MRI showed disc herniation at the L4-L5 level with extrusion on the left and
extruded fragment. Dr. Morrison confirmed and then Dr. James Magill conducted a
lumbar myelogram. Dr. Rankin performed a lumbar CT and noted degenerative disc
disease at multiple levels. Dr. Morrison performed surgery in 1995. Plaintiff continued
having pain thereafter. In 1997, plaintiff saw Dr. David Burton. He saw Dr. Burton
again in 2000 and underwent an MRI.

In February of 2000 plaintiff again saw Dr.

Morrison for lower back pain. On January 2006, plaintiff returned to Dr. Morrison again
complaining of pain. Dr. Morrison on both occasions diagnosed degenerative lumbar
disc disease and recommended strengthening exercise and pain medications. Plaintiff
then saw Dr. Richard Murphy who diagnosed right elbow arthrosis with multiple loose
bodies. Dr. Murphy performed surgery for this issue. Plaintiff received injections for his
knee pain. In May of 2007, he saw Dr. Stephen Smith complaining about his knee. Dr.
Smith injected both knees. Plaintiff then tore his rotator cuff while playing golf. After a
number of visits, he received arthroscopic surgery. In June of 2009, plaintiff received
2

more steroid shots in his knee and he continued to take pain medications. He received
injections in his knees later in October 2009. Dr. Smith diagnosed osteoarthritis of both
knees and also plantar fasciitis.
In January 2011, plaintiff went to see Ross Hanson, PAC of the Faith Regional
Family Medicine Services, for hypertension, hyperlipidemia, and back pain. He was
given Flexeril for the back spasms. Plaintiff returned in June of 2011 with low back pain
and fatigue.
On March 7, 2011, Dr. Smith completed a medical impairment and capacities
evaluation. Dr. Smith noted he was the treating physician since 1997 and saw plaintiff
regularly for his spine, knees, and elbow issues. Dr. Smith indicated that plaintiff had
not improved in spite of the treatment. Dr. Smith indicated that plaintiff’s pain would
often interfere with his attention and concentration; that the plaintiff should seldom lift or
carry up to 10 pounds; should seldom reach, grasp or perform fine manipulations; could
occasionally use foot controls; should never bend, squat, crawl or climb; should seldom
reach above shoulder level; should never work at unprotected heights or around moving
machinery; should seldom work in or be exposed to marked changes in temperature
and humidity or driving automotive equipment; and could only occasionally be exposed
to dust, fumes and gases. It was the opinion of Dr. Smith that the plaintiff should never
work at a rapid pace and that he should not be working at all (Tr. 240-245).
On March 2, 2011, Dr. Jerry Reed, a consulting doctor, did a one-time evaluation
of plaintiff’s most recent records for the DDS.

Dr. Reed determined that plaintiff

suffered from OA bilateral knees and S/P left shoulder arthroscopy as of December 31,
2008, and that plaintiff could lift 50 pounds occasionally, 25 pounds frequently; could
3

stand and/or walk six hours in an eight-hour workday; could sit about six hours in an 8hour workday; could occasionally climb, crouch, kneel and crawl; and would need to
avoid constant/frequent overhead reaching due to s/p arthroscopy of the left shoulder
(Tr. 278-285).
The ALJ concluded that plaintiff was not under a disability as defined by the
Social Security Act (Tr. 13-20). The ALJ found that plaintiff had the severe impairments
of status-post remote discectomy and laminectomy at L4-L5; osteoarthritis of the knees;
and status-post left shoulder repair (Tr. 15). However, the ALJ determined that plaintiff
did not have an impairment or combination of impairments that met or equaled one
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 16). The ALJ determined that
plaintiff retained the residual functional capacity (“RFC”) to perform a wide range of light
work as defined in 20 C.F.R. § 404.1567(b), but could only perform postural activities no
more than occasionally (Tr. 16). The ALJ determined that the plaintiff could not do his
past work, but that he could do other work that existed in the economy. The ALJ
considered plaintiff’s daily activities where plaintiff says he “manages through things”
(Tr. 17), that he could cook, clean up, and mow the yard (Tr. 17, 183).
The government argues that the relevant period of the court’s consideration of
plaintiff’s disability insurance benefits is December 31, 2007, plaintiff’s onset date,
through December 31, 2008, his date last insured. The government contends that the
elbow, obesity, and degenerative disc problems were prior to the relevant time period.
LEGAL STANDARDS
When reviewing the decision not to award disability benefits, the district court
does not act as a fact-finder or substitute its judgment for the judgment of the ALJ or the
4

Commissioner. See Harris v. Barnhart, 356 F.3d 926, 928 (8th Cir. 2004) (quoting
Bates v. Chater, 54 F.3d 529, 532 (8th Cir. 1995)). Rather, the district court will affirm
the Commissioner’s decision to deny benefits if it is supported by substantial evidence
in the record as a whole. Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011) (citing
Medhaug v. Astrue, 578 F.3d 805, 813 (8th Cir. 2009)). Under this standard, substantial
evidence means something “less than a preponderance” of the evidence, but “more
than a mere scintilla.” Moore v. Astrue, 572 F.3d 520, 522 (8th Cir. 2009) (quoting
Lewis v. Barnhart, 353 F.3d 642, 645 (8th Cir. 2003)); Richardson v. Perales, 402 U.S.
389, 401 (1971); accord Ellison v. Sullivan, 921 F.2d 816, 818 (8th Cir. 1990).
“Substantial evidence is relevant evidence that a reasonable mind would accept as
adequate to support the Commissioner’s conclusion.” Perkins, 648 F.3d at 897 (quoting
Medhaug, 578 F.3d at 813).
In determining whether the evidence in the record as a whole is substantial, the
court must consider “evidence that detracts from the Commissioner’s decision as well
as evidence that supports it.” Travis v. Astrue, 477 F.3d 1037, 1040 (8th Cir. 2007)
(quoting Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000)). If the court finds that the
record contains substantial evidence supporting the Commissioner’s decision, the court
may not reverse the decision either because the record also contains substantial
evidence that supports a different outcome or because the court would have decided
the case differently. Holley v. Massanari, 253 F.3d 1088, 1091 (8th Cir. 2001) (citing
Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)).
When reviewing the decision not to award disability benefits, the district court
does not act as a fact-finder or substitute its judgment for the judgment of the ALJ or the
5

Commissioner.

Bates v. Chater, 54 F.3d 529, 532 (8th Cir. 1995).

A decision

supported by substantial evidence may not be reversed, “even if inconsistent
conclusions may be drawn from the evidence, and even if [the court] may have reached
a different outcome.”

McNamara v. Astrue, 590 F.3d 607, 610 (8th Cir. 2010).

Nevertheless, the court’s review “is more than a search of the record for evidence
supporting the Commissioner’s findings, and requires a scrutinizing analysis, not merely
a ‘rubber stamp’ of the Commissioner’s action.” Scott ex rel. Scott v. Astrue, 529 F.3d
818, 821 (8th Cir. 2008) (internal quotations and citations omitted). The court must
consider evidence that detracts from the Commissioner’s decision in addition to
evidence that supports it. Finch v. Astrue, 547 F.3d 933, 935 (8th Cir. 2008). The court
must also determine whether the Commissioner’s decision “is based on legal error.”
Lowe v. Apfel, 226 F.3d 969, 971 (8th Cir. 2000). The court does not owe deference to
the Commissioner’s legal conclusions. See Juszczyk v. Astrue, 542 F.3d 626, 633 (8th
Cir. 2008).
A disability is the “inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous period of
not less than twelve months….” 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505; see
also 42 U.S.C. § 1382c(a)(3)(A); 20 C.F.R. § 416.905(a). To determine whether a
claimant is disabled, the Commissioner must perform the five-step sequential analysis
described in the Social Security Regulations.

See 20 C.F.R. §§ 404.1520(a),

416.920(a). Specifically, the Commissioner must determine: “(1) whether the claimant
is engaged in any substantial gainful activity; (2) whether the claimant has a severe
6

impairment; (3) whether the impairment meets or equals an impairment listed in 20
C.F.R. Pt. 404, Subpt. P, App. 1; (4) whether the claimant can return to [his] past
relevant work; and (5) whether the claimant can adjust to other work in the national
economy.” Tilley v. Astrue, 580 F.3d 675, 678 n.9 (8th Cir. 2009); see also Kluesner v.
Astrue, 607 F.3d 533, 536-37 (8th Cir. 2010). “Through step four of this analysis, the
claimant has the burden of showing that [he] is disabled.” Steed v. Astrue, 524 F.3d
872, 874 n.3 (8th Cir. 2008). After the analysis reaches step five, however, “the burden
shift[s] to the Commissioner to show that there are other jobs in the economy that [the]
claimant can perform.” Id. The regulations explicitly provide that if the Social Security
Administration (“SSA”) finds that a claimant is disabled or not disabled at a step, the
SSA makes its determination or decision and it does not go on to the next step. 20
C.F.R. § 404.1520(a)(4).
RFC is defined as the claimant’s maximum remaining ability to do sustained work
activities in an ordinary work setting on a regular and continuing basis, i.e., eight hours
a day, five days a week, or an equivalent work schedule. SSR 96-8P, 1996 WL 374184
(July 2, 1996). RFC is what an individual can still do despite his impairments and the
resulting limitations. Id. While RFC is a medical question, RFC is not based solely on
“medical” evidence. See Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000); see
McKinney v. Apfel, 228 F.3d 860, 863 (8th Cir. 2000) (holding that the Commissioner
must determine a claimant’s RFC based on all of the relevant evidence, including
medical records, observations of treating physicians and others, and an individual’s own
description of the limitations).

7

DISCUSSION
A. Treating physician
Plaintiff contends that the ALJ erred by not adequately considering his medically
determinable severe impairments, including those espoused by his treating physician,
Dr. Smith.

See Hogan v. Apfel, 239 F.3d 958, 961 (8th Cir. 2001).

“[A] treating

physician’s opinion regarding an applicant’s impairment will be granted ‘controlling
weight,’ provided the opinion is ‘well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in the record.’” Prosch v. Apfel, 201 F.3d 1010, 1012-1013 (8th Cir. 2000)
(quoting 20 C.F.R. § 404.1527(d)(2) (2006)). The ALJ may discount or disregard such
an opinion if other medical assessments are supported by superior medical evidence, or
if the treating physician has offered inconsistent opinions. Hogan v. Apfel, 239 F.3d at
961. An ALJ cannot substitute his own opinion for the medical opinions.

Ness v.

Sullivan, 904 F.2d 432, 435 (8th Cir. 1990).
The court has carefully reviewed the record. It is clear that plaintiff has a number
of serious impairments.

These impairments are well documented by his treating

physicians. Other than the opinion of the consulting doctor, there are no conflicting
statements from a treating physician. Dr. Smith opines that the plaintiff should not work.
The ALJ has no basis for discounting the opinion of Dr. Smith or of discounting the
overwhelming evidence of significant disabilities that make plaintiff incapable of work as
described in the regulations. Without any significant analysis, the ALJ stated: “because
the objective evidence does not support limiting the claimant to less than sedentary
activities … little weight [is given] to Dr. Smith’s opinion.” (Tr. 18.) The ALJ erred in not
8

giving the treating physician’s opinions significant weight. Accordingly, the court finds
there is not substantial evidence to support the decision of the ALJ to discount the
findings of the treating physicians.
B. Vocational expert
To assist an ALJ making a disability determination, a vocational expert (“VE”) is
many times asked a hypothetical question to help the ALJ determine whether a
sufficient number of jobs exist in the national economy that can be performed by a
person with a similar RFC to the claimant.

A hypothetical question is properly

formulated if it incorporates impairments “supported by substantial evidence in the
record and accepted as true by the ALJ.” Guilliams v. Barnhart, 393 F.3d 798, 804 (8th
Cir. 2005) (quoting Davis v. Apfel, 239 F.3d 962, 966 (8th Cir. 2001)). A VE’s testimony
may be considered substantial evidence “only when the testimony is based on a
correctly phrased hypothetical question that captures the concrete consequences of a
claimant’s deficiencies.” Taylor v. Chater, 118 F.3d 1274, 1278 (8th Cir. 1997) (citing
Porch v. Chater, 115 F.3d 567, 572-73 (8th Cir. 1997), and Pickney v. Chater, 96 F.3d
294, 297 (8th Cir. 1996)).

The Eighth Circuit has further said that “hypothetical

questions that do not relate all of a claimant’s impairments cannot constitute substantial
evidence to support a finding of no disability.” Totz v. Sullivan, 961 F.2d 727, 730 (8th
Cir. 1992). See also Penn v. Sullivan, 896 F.2d 313, 316–317 (8th Cir. 1990). Courts
apply a harmless error analysis during judicial review of administrative decisions that
are in part based on hypothetical questions. For judicial review of the denial of Social
Security benefits, an error is harmless when the outcome of the case would be
unchanged even if the error had not occurred. See Brueggemann v. Barnhart, 348 F.3d
9

689, 695 (8th Cir. 2003). The ALJ has the burden under the fifth prong of the sequential
evaluation process to provide information on jobs that plaintiff could perform in the
national economy. See 20 C.F.R. § 404.1520(a)(4)(v).
The ALJ called vocational expert Dale Linhart to the stand.

The ALJ asked

Linhart to explain the requirements of plaintiff’s previous work. Mr. Linhart described it
as a maintenance job, semi-skilled, lifting of 50 pounds (Tr. 29). The ALJ asked no
additional questions and posed no hypothetical questions to Mr. Linhart.

Plaintiff

contends that the ALJ erred by applying the medical vocational guidelines due to the
fact that plaintiff has significant nonexertional limitations. Upon review of the record, it is
clear that the ALJ did not include all of plaintiff’s credible limitations. For example, even
the Social Security Administration’s own expert opined that plaintiff’s reaching was
limited. The ALJ did not incorporate that limitation. Further, the VE was not asked a
hypothetical question which incorporated either the exertional or nonexertional
limitations. The ALJ, without this testimony, determined that plaintiff could perform a
range of light work with the condition that plaintiff could only occasionally perform
postural activities.

The ALJ does not give examples of the jobs that plaintiff can

perform, nor did he consider the history of plaintiff’s medical care. The court finds there
is a failure of evidence in this regard. There is no substantial evidence in the record to
support the ALJ’s finding. There is significant medical evidence in this case that is
consistent with the plaintiff’s testimony. Yet, the ALJ posed no questions to the VE. As
a result, the ALJ erred. The ALJ did not use the services of the VE to establish what
jobs could be performed by the plaintiff, and instead, the ALJ substituted his belief that
plaintiff was not disabled.
10

C. Subjective complaints
The standard in the Eighth Circuit for evaluating a claimant’s subjective
complaints of pain in Social Security cases is Polaski v. Heckler, 739 F.2d 1320 (8th Cir.
1984). See Perkins v. Astrue, 648 F.3d 892, 900 (8th Cir. 2011). An ALJ may not
disregard a plaintiff’s subjective complaints solely because the objective medical
evidence does not fully support the complaints. Polaski, 739 F.2d at 1322.
Absence of an objective medical basis supporting the degree of severity of a
disability claimant’s subjective complaints is just one factor to be considered when
evaluating the credibility of complaints and testimony. Id. “The [ALJ] 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 [ALJ] is not free to accept or reject the claimant’s subjective complaints solely on
the basis of personal observations.” Id. Subjective complaints may be discounted if
there are inconsistencies in the record as a whole. Perkins, 648 F.3d at 900 (quoting
Dunahoo v. Apfel, 241 F.3d 1033, 1038 (8th Cir. 2001)). “Not all pain reaches a level
[at] which it is disabling.” Benskin v. Bowen, 830 F.2d 878, 882 (8th Cir. 1987). “While
the ALJ may not discount a social security disability claimant’s complaints solely
11

because they are not fully supported by objective medical evidence, a claimant’s
complaints may be discounted based on the inconsistencies in the record as a whole.”
Ellis v. Barnhart, 392 F.3d 988, 996 (8th Cir. 2005). “Allegations of disabling pain made
by claimant seeking social security disability benefits may be discredited by evidence
that claimant has received minimum medical treatment and/or has taken only
occasional pain medication.” Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998).
The record is replete with allegations of pain by the plaintiff. There are numerous
medical records prescribing medications to combat the pain.

There is substantial

objective and subjective evidence on this record that plaintiff suffered from significant
pain. The ALJ erred as a matter of law in not adequately considering this evidence.
D. Conclusion
Thus, because the record presented to the ALJ contains substantial evidence
supporting a finding of disability, the court may reverse and enter an order granting
benefits to the claimant. Parsons v. Heckler, 739 F.2d 1334, 1341 (8th Cir. 1984).
“Where the record overwhelmingly supports a disability finding and remand would
merely delay the receipt of benefits to which plaintiff is entitled, reversal is appropriate.”
Thompson v. Sullivan, 957 F.2d 611, 614 (8th Cir. 1992). In this case, the substantial
evidence supporting a finding of disability is overwhelming. Under the circumstances,
further hearings would merely delay benefits. Accordingly, an order granting benefits is
appropriate.
THEREFORE, IT IS ORDERED that the determination of the defendant that
plaintiff is not disabled is reversed. The defendant is ordered to remand this case for a
calculation of disability benefits due and owing to the plaintiff. The plaintiff may file a
12

motion for attorney fees in this case. The court will enter a judgment in conjunction with
this Memorandum and Order.
Dated this 12th day of December, 2012.
BY THE COURT:

s/ Joseph F. Bataillon
United States District Judge

13