Mann v. Berryhill
Filing
22
MEMORANDUM AND ORDER - Mann's motion for reversal of the Commissioner's final decision 12 is granted. The Commissioner's motion to affirm the Commissioner's final decision 18 is denied. The Commissioner's decision is reve rsed. This matter is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further consideration consistent with this Court's Memorandum and Order. A separate judgment will be entered. Ordered by Chief Judge John M. Gerrard. (KLF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
RONALD E. MANN,
Plaintiff,
4:18-CV-3022
vs.
MEMORANDUM AND ORDER
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
The plaintiff, Ronald E. Mann, filed his Complaint (filing 1) seeking
judicial review of the Commissioner of Social Security's denial of his
application for disability insurance benefits, and moved this Court for an order
reversing the Commissioner's final decision. Filing 12. The Commissioner filed
her motion to affirm the agency's final decision denying benefits. Filing 18. The
Court finds that the ALJ's decision is not supported by substantial evidence on
the record, that the Commissioner's final decision should be reversed, and that
this matter should be remanded for further proceedings.
I. STANDARD OF REVIEW
The Court reviews "the ALJ's decision to deny disability insurance
benefits de novo on the record to ensure that there was no legal error and that
the findings of fact are supported by substantial evidence on the record as a
whole." Combs v. Berryhill, 878 F.3d 642, 645-46 (8th Cir. 2017). "Substantial
evidence is less than a preponderance, but enough that a reasonable mind
would find it adequate to support a conclusion." Id. The Court considers "the
record as a whole, reviewing both the evidence that supports the ALJ's decision
and the evidence that detracts from it." Id.
II. BACKGROUND
Ronald Mann is a resident of Beatrice, Nebraska. On December 14, 2011,
Mann lost control of his car and collided with a tree. The collision occurred
when Mann, who suffers from asthma and chronic obstructive pulmonary
disease (COPD), was having trouble breathing, reached for an inhaler and lost
control of his Jeep. Filing 7-10 at 33. Mann suffered a complex fracture of his
pelvis (right acetabular with fragmentation), a non-displaced fracture of his
right femoral head, multiple rib fractures, a nasal fracture, a concussion with
a loss of consciousness, and several lacerations. Filing 7-10 at 62-83. His pelvic
fracture was surgically repaired on December 15. Filing 7-10 at 78-79. At the
time of the collision Mann worked for Endicott Clay Products, a brick
manufacturer located in Endicott, Nebraska. Filing 7-5 at 12-13. Mann's job
responsibilities included operating a tunnel kiln and preparing the clay bricks
for firing in the kiln by placing them on carts. The process of firing the bricks
required Mann to haul five-gallon buckets of gravel weighing around 75
pounds each up a flight of stairs and then pour the gravel down a chute.
Dr. Robert Arias evaluated Mann's concussion symptoms while he was
recovering from his pelvic fracture. Filing 7-9 at 8-15. Dr. Arias concluded
Mann suffered mild dysfunction consistent with what is seen after a traumatic
brain injury. Filing 7-9 at 8. The dysfunction included deficits in working
memory, susceptibility to interference during processing, rapid divided
attention, complex visual memory retrieval, and visual reasoning skills. Id. Dr.
Arias characterized Mann's deficits as mild and expected Mann would recover
further. Id.
There is a report that Mann received a significant amount of physical
therapy in 2012 and was discharged in May. Filing 7-7 at 11. However, no 2012
physical therapy records were included as part of the medical records
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submitted in support of Mann's claim. Although not entirely clear in the
evidence, it appears that Mann was not able to return to his job at Endicott.
An evaluation by pulmonologist Dr. Sean Berry on May 1, 2012, reported that
Mann had not returned to the brickyard because of respiratory issues. Filing
7-10 at 13. Mann indicated that after recovering from his hip fracture, he
worked at Walmart as a third shift stocker so that he could build up stamina
to get back into the workforce. Filing 7-2 at 41. However, Mann resigned when
he concluded that he could not do the heavy lifting, kneeling, bending and
reaching that the job required. Id. He next took a job with Setzer's
Manufacturing in Beatrice. This job required Mann to operate several different
sheet metal machines, which required lifting heavy metal sheets. Filing 7-2 at
42. Mann said that he had one-on-one supervision at Setzer to make sure he
entered the proper codes so that everything was cut, sheared, or bent to the
proper dimension. Filing 7-2 at 50.
Mann worked at Setzer until, in his words, his hip "went completely out"
and he had to have it replaced. Filing 7-2 at 42. On October 14, 2013, Mann
returned to see Dr. David Samani, the surgeon that repaired his hip fracture.
Dr. Samani's physician assistant reported Mann was complaining of right hip
pain that had gotten progressively worse over the previous three to four weeks.
Filing 7-8 at 74. Axial CT images were obtained showing advanced
degenerative changes in Mann's right hip, which appeared to have progressed
as compared to a previous study. Filing 7-7 at 97. In a follow-up appointment
on November 14, Mann received a cortisone injection to see if that would
provide relief. Filing 7-8 at 72. Mann returned on November 27 reporting that
he received only four days of relief from the cortisone shot. Hip replacement
was recommended. Filing 7-8 at 70. On December 17, Mann underwent right
total hip arthroplasty due to traumatic osteoarthritis with avascular necrosis
3
of the femoral head. Filing 7-7 at 70-71. In a follow-up evaluation on January
2, 2014, Mann reported that he was doing great, with only minimal pain
symptoms. Filing 7-8 at 64. He was referred to physical therapy
The physical therapist reported that Mann did well in physical therapy,
going from non-weightbearing and using a walker to, on March 27, 2014, when
he was discharged, a normalized gait pattern on level surfaces without a
device. Filing 7-7 at 44. During this same period Dr. Samani placed limits on
Mann, reporting that he should avoid squatting, kneeling, crawling, running,
jumping and lifting loads over 50 pounds. Filing 7-8 at 59. Following his release
from physical therapy, Mann's condition appeared to worsen. At his June 23
follow-up evaluation with Dr. Samani, Mann reported increased pain. Filing 78 at 57-58. He said that he tried to go back to work but was unable to tolerate
his pain and could only stand for about four hours. His gait was now observed
to be antalgic. Dr. Samani prescribed OxyContin (i.e., oxycodone) for Mann's
pain symptoms and asked to see him again in two weeks. At the July 7 followup, Mann reported that his pain was improved, but he still had problems
walking for a longer period. Mann's gait was again observed to be antalgic. Dr.
Samani continued Mann's OxyContin prescription, and injected his hip with
Depo-Medrol, an anti-inflammatory steroid. Filing 7-8 at 55-56.
Mann's hip pain continued into 2015. Mann's primary care physician,
Dr. David Gloor, reported that on February 25, 2015, Mann was evaluated for
complaints of persistent neuropathic pain in his right buttock. Filing 7-8 at 4142. Dr. Gloor reported that Mann had been on oxycodone for a long time but
had stopped because he was tired of feeling drugged all the time. Instead,
Mann was trying, unsuccessfully, to control his pain symptoms with Tylenol.
Dr. Gloor prescribed Neurontin (gabapentin) for Mann's neuropathic pain, and
Tramadol (a narcotic-like pain reliever) for Mann's "breakthrough pain." Filing
4
7-8 at 41. In an April 14 follow-up evaluation, Mann reported that he had good
improvement with Neurontin, which Dr. Gloor continued. Filing 7-9 at 4. On
June 16, Mann reported that overall, he felt about the same, and that his
activities were limited due to his continuing hip pain. Mann's weight, however,
had climbed from around 250 pounds to 272 pounds. Dr. Gloor was now
concerned about Type-2 diabetes and recommend lifestyle changes for Mann to
lose weight. Filing 7-9 at 3-4.
Mann continued to regularly return to Dr. Gloor's clinic through 2015
and into the first half of 2016. Dr. Gloor's reports show that Mann's
medications were continued on each visit, and that he had some success at
weight loss, dropping 20 pounds. Filing 7-9 at 2-3. On July 15, 2016, Mann was
examined by Dr. Gloor for complaints of left knee pain. Filing 7-9 at 2. Dr.
Gloor reported that Mann's knee pain came about spontaneously without a
specific new injury. Previously, Mann had surgery to repair a left knee fracture
sometime around 2000. Dr. Gloor noted that Mann came into his office using a
walker and was at best 25 percent toe-touch weightbearing. Mann was referred
to orthopedic surgeon Dr. Douglas Koch for further evaluation. Dr. Gloor
suspected that Mann would require joint replacement surgery. Filing 7-9 at 2.
Mann's appointment with Dr. Koch was July 17. Filing 7-11 at 68-69. Dr.
Koch reported that Mann's pain was isolated to the medial aspect of his left
knee and increased with weightbearing activities such as standing or walking.
Dr. Koch discussed options with Mann including injections versus surgery. The
surgery Dr. Koch discussed was total knee arthroplasty and removal of the
hardware from Mann's previous knee surgery. Mann opted to try a steroid
injection before agreeing to surgery. On August 29, after the steroid injection
proved ineffective, Mann opted for total left knee arthroplasty. Filing 7-11 at
66-67. October evaluations by Dr. Gloor and Dr. Koch indicate that Mann's
5
knee replacement surgery went well, but that after a period of physical
therapy, Mann continued to walk with the assistance of a cane. In his October
10 report, Dr. Koch noted that Mann was using a cane for assistance and
included in his treatment plan that he was to "continue the cane as needed."
Filing 7-11 at 59. In Dr. Gloor's December 19 office visit report, he noted that
Mann was trying to exercise as much as possible, but that he still walked with
a cane. Filing 7-9 at 19.
On January 25, 2017, Dr. Gloor completed a treating source statement
specific to Listing § 1.03 – Reconstructive Surgery or Surgical Arthrodesis of a
Major Weight-Bearing Joint. Filing 7-9 at 17-18. The first two questions on the
statement asked whether Mann had "reconstructive surgery of a major weight
bearing joint(s)" and whether he had "surgical arthrodesis of a major weightbearing joint." Dr. Gloor answered both questions "Rt hip 2013 Lt knee 2016."
Question three inquired: "Concerning your patient's ability to 'ambulate
effectively,' is your patient able to do the following on a sustained basis without
companion assistance." Four separate subparts followed inquiring about the
patient's ability to walk on rough or uneven surfaces, use public
transportation, carry out routine tasks such as shopping, and climb stairs.
Next to each subpart were boxes to be checked either yes or no. Dr. Gloor did
not check any of the subpart boxes. Question 4 requested a response if any of
the "sub questions under question 3" were checked "no." Dr. Gloor also did not
respond to question 4.
Instead, under question 4 were blank lines asking the evaluator to
"Explain, if necessary." Dr. Gloor provided the following explanation: "Ron
walks with aid of a cane. He often limps from his right hip. I cannot quantify
specific functional use." There was no question 5. Question 6 inquired: "Does
6
your patient need an assistive device to ambulate?" Dr. Gloor checked the "yes"
box and explained that the assistive device Mann needed was a cane.
Mann filed his application for disability insurance benefits on July 9,
2014, alleging that December 17, 2013 was the date he became unable to work
because of his disabling condition. Filing 7-5 at 2. His application was initially
denied on January 6, 2015, and upon reconsideration, was denied again on May
15, 2015. The ALJ held a hearing on Mann's application on February 24, 2017.
Filing 7-2 at 34. The hearing was by teleconference with the ALJ in Fargo,
North Dakota, Mann and his counsel in Lincoln, and a vocational expert
appearing by telephone. Filing 7-2 at 16. Mann testified that he was 53 years
old, 5'9" tall, and weighed 250 pounds. He was married and had one adult child
who was out of the house. Mann said that he had a current driver's license but
did not drive a lot due to the "narcotic pain medication" he was taking. He said
that he left school during the middle part of the 12th grade and went into the
Marine Corps.
After testifying about his past work experience, Mann described his
various injuries, and surgical procedures. In response to his counsel's question,
Mann said that he "always walks with a cane" and had done so "ever since my
original accident due to the nerve damage in the hip. Sometimes the hip goes
out." Filing 7-2 at 47. Mann said that he had been on pain killers since the time
of the traffic accident. He identified side effects he experienced from his pain
medication such as drowsiness, sleepiness, and the inability to operate
machinery or drive. Filing 7-2 at 47, 53.
Mann said that he had trouble with short-term memory, remembering
directions, and numbers. He indicated that he tended to get numbers mixed up
and needed help managing money. Filing 7-2 at 47-48. Mann testified that he
had to have his cell phone number written down because he could not recall it.
7
He said he could not recall what day of the week it was without help, and that
his wife had to make sure he took all his medications because he would forget.
Filing 7-2 at 50. Mann's daily medication requirements included prescription
and non-prescription medications to treat COPD, asthma, hypertension,
depression, glaucoma, macular degeneration, type-2 diabetes, high cholesterol,
and cluster headaches, in addition to the medications he was taking for
neuropathic and breakthrough pain.
Mann testified that he could only stand for ten to fifteen minutes at a
time because it put too much pressure on his hip. Filing 7-2 at 53-54. He said
that he could no longer descend steps normally with one foot in front of the
other, and that he now needed handrails on both sides for assistance. Filing 72 at 49. Mann testified that he could care for his personal hygiene, but that at
times he needed help getting in the shower. Filing 7-2 at 54. He said he could
hand-wash dishes and make simple meals in the microwave. But his wife
would not let him use the oven because he forgets to turn it off. Mann testified
that he could vacuum for short periods of time. He said that during the course
of a day he would watch television or read off and on, but would get headaches
if he did either for too long.
The ALJ proposed the following hypothetical for the vocational expert to
consider regarding Mann's residual functional capacity.
Please assume a hypothetical individual who is – or who has
the same age, education, and work experience as the claimant, and
this hypothetical individual would be able to lift and or carry 20
pounds occasionally and ten pounds frequently; stand and or walk
for about six hours in an eight-hour day and sit for about six. This
person could occasionally climb ramps or stairs, ladders, ropes, or
scaffolds; occasionally balance, stoop, kneel, crouch, crawl; should
8
avoid concentrated exposure to both extreme cold and extreme
heat as well as excessive noise, excessive vibration, and exposure
to irritants such as fumes, odors, dust, gases, poorly ventilated
areas. Person would be limited to simple, routine, and repetitive
tasks and could only handle occasional changes in the work
setting.
Filing 7-2 at 57-58.
The vocational expert testified that the hypothetical individual would
not be able to return to Mann's past work, but that there would be other work
available for such person in the national economy. She identified three job
titles in the unskilled (SVP 2), light exertional category; a palletizer, a router,
and a folding machine operator. The ALJ then had the vocational expert
consider the same hypothetical individual limited to the sedentary exertional
category and asked whether such individual would have transferable skills.
The vocational expert said no. Mann's counsel inquired: if the hypothetical
individual in the light exertional category needed more than ordinary
supervision, would he be able to perform the jobs she identified. The vocational
expert said such person would be precluded from competitive employment.
The ALJ issued an unfavorable decision on May 4, 2017. Filing 7-2 at 1328. The ALJ analyzed Mann's disability by following the five-step sequential
evaluation process outlined in 20 C.F.R. § 420.1520(a)-(f).1 Consistent with
1
To determine whether a claimant is entitled to disability benefits, the ALJ performs a five-
step sequential analysis. 20 C.F.R. § 404.1520(a)(4). At step one, the claimant has the burden
to establish that he has not engaged in substantial gainful activity since his alleged disability
onset date. Cuthrell v. Astrue, 702 F.3d 1114, 1116 (8th Cir. 2013). If the claimant has
engaged in substantial gainful activity, he will be found not to be disabled; otherwise, at step
two, he has the burden to prove he has a medically determinable physical or mental
9
Mann's application, the ALJ found that he met the insured status
requirements of the Act and that he had not engaged in substantial gainful
activity since December 17, 2013. Filing 7-2 at 18. The ALJ found that Mann
had several severe impairments; history of right hip injury with total
arthroplasty right hip, left knee osteoarthritis with total left knee replacement,
COPD, asthma, history of migraine headaches, obesity, and traumatic brain
injury with residual neurocognitive disorder. The ALJ also identified several
non-severe conditions; hypertension, diabetes mellitus, macular degeneration,
obstructive sleep apnea and posttraumatic stress disorder. The ALJ found that
Mann's impairments or combination of impairments did not meet the criteria
of a presumptively disabling impairment listed in the regulations.
The ALJ found that Mann had a residual functional capacity to perform
light work consistent with the hypothetical he posed to the vocational expert.
Filing 7-2 at 21. The ALJ concluded that Mann was unable to return to past
relevant work which generally required a functional capacity in the medium to
impairment or combination of impairments that significantly limits his physical or mental
ability to perform basic work activities. Id. At step three, if the claimant shows that his
impairment meets or equals a presumptively disabling impairment listed in the regulations,
he is automatically found disabled and is entitled to benefits. Id. Otherwise, the analysis
proceeds to step four. But first, the ALJ must determine the claimant's residual functional
capacity (RFC), which is used at steps four and five. 20 C.F.R. § 404.1520(a)(4). A claimant's
RFC is what he can do despite the limitations caused by any mental or physical impairments.
Toland v. Colvin, 761 F.3d 931, 935 (8th Cir. 2014). At step four, the claimant has the burden
to prove he lacks the RFC to perform his past relevant work. Cuthrell, 702 F.3d at 1116. If
the claimant can still do his past relevant work, he will be found not to be disabled; otherwise,
at step five, the burden shifts to the Commissioner to prove, considering the claimant's RFC,
age, education, and work experience, that there are other jobs in the national economy the
claimant can perform. Id.; Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010).
10
very heavy physical demand range. Filing 7-2 at 26. However, considering
Mann's age, education, transferable skills, and capacity to perform light
physical demand work, the ALJ found that Mann was not disabled, in that
there were jobs that exist in significant numbers in the national economy that
Mann could perform. The Appeals Council denied Mann's request for review,
thereby making the ALJ's decision the Commissioner's final decision under 42
U.S.C. § 405(g). Filing 7-2 at 2.
III. DISCUSSION
1. SUBSTANTIAL EVIDENCE DOES NOT SUPPORT THE DECISION.
"Because a claimant's [residual functional capacity] is a medical
question, an ALJ's assessment of it must be supported by some medical
evidence of the claimant's ability to function in the workplace." Mabry v.
Colvin, 815 F.3d 386, 390 (8th Cir. 2015). "The ALJ may not simply draw his
own inferences about plaintiff's functional ability from medical reports."
Combs, 878 F.3d at 646.
The ALJ concluded that although Mann's medically determinable
impairments could reasonably be expected to produce the symptoms Mann
described, the intensity, persistence and limiting effects of the symptoms was
"not entirely consistent with the medical evidence and other evidence" in the
record. Filing 7-2 at 22. The medical evidence that the ALJ focused on were the
reports from the two medical consultants that reviewed a limited portion of
Mann's medical file to opine that he retained the capacity for light work, and
the physical therapy records indicating that Mann was "released with a good
prognosis." Filing 7-2 at 23 & 25.
However, the two consultants and physical therapy reports either
ignored, failed to consider, or were unaware of the many reports from Mann's
treating orthopedic surgeon and primary care physician regarding the pain
11
and dysfunction that Mann continued to experience with his right hip
condition. In fact, none of the sources the ALJ relied on considered the
impairment and disability resulting from Mann's left knee arthroplasty. Mann
was released from physical therapy in March 2014, and the two consultant
reports are dated January and May of 2015. However, reports of Mann's left
knee dysfunction did not come about until July 2016. Mann argues, and the
medical records reflect, that after July 2016, Mann required greater assistance
with ambulation.
The record as a whole reflects that the ALJ did not accurately or fairly
consider the reports from Mann's treating doctors that indicate a steady
worsening of his condition after his release from physical therapy on March 27,
2014. On June 23, 2014, Mann's hip pain was such that he returned to see Dr.
Samani who observed that Mann's gait was antalgic. Dr. Samani also
prescribed OxyContin to address Mann's increasing pain symptoms. The ALJ
described this office visit as Mann "exhibited some ongoing discomfort." That
description is not accurate. Dr. Samani specifically observed physical
dysfunction in Mann's gait. Also, it goes without saying that prescribing an
addictive narcotic such as OxyContin is not something an orthopedic surgeon
does simply because the patient is exhibiting "some discomfort." When Mann
returned to Dr. Samani in July, the OxyContin prescription was renewed, and
Mann received a steroid injection into his hip. Again, this is not treatment that
an orthopedic surgeon provides merely because a patient is experiencing "some
discomfort."
When the treatment of Mann's pain symptoms with OxyContin became
problematic because it caused him to feel drugged, Dr. Gloor—Mann's primary
care physician—prescribed a combination of Neurontin for neuropathic pain
and Tramadol for breakthrough pain. Mann was still being treated with these
12
prescription medications in 2017 at the time of his hearing. The ALJ described
Dr. Gloor's involvement as "minimal treatment with medication." The ALJ's
description fails to acknowledge that prescription pain medications are not
"minimal treatments" and fails to acknowledge that the continuous need for
prescription medication over a two-year period is not "minimal treatment."
An ALJ is required to give controlling weight to the opinions of treating
doctors when "well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial
evidence." 20 C.F.R. § 404.1527(c)(2); Toland v. Colvin, 761 F.3d 931, 935 (8th
Cir. 2014). The opinions of Mann's treating doctors that the ALJ minimized (or
did not consider) were conclusions the doctors made in real-time for the
purposes of treatment. Those kinds of opinions are particularly controlling and
should be given the greatest degree of weight. Not only are those opinions wellsupported by the medical evidence, they are the medical evidence.
In addition, the medical treatment records provide substantial evidence
of Mann's continuing inability to ambulate effectively that the ALJ may not
disregard or ignore. On July 15, 2016, Dr. Gloor reported that Mann was using
a walker and was at best 25 percent toe-touch weightbearing. Dr. Gloor
referred Mann to Dr. Koch, who on October 10, 2016, reported that Mann was
using a cane for assistance. Moreover, Dr. Koch's treatment plan provided that
Mann should continue the cane as needed. Filing 7-11 at 59. Mann was still
using a cane for assistance in December, as noted by Dr. Gloor in his December
19 office visit report. Finally, Mann was walking with a cane on the day of his
hearing, February 24, 2017. There is no medical report or opinion in the record
indicating that after his left knee arthroplasty Mann did not need to use a cane
for ambulation or that his current need for a cane was not expected to last for
twelve months. See Barnhart v. Wilson, 535 U.S. 212, 214-15 (2002).
13
In support of his view that Mann does not require a cane, the ALJ cites
to Dr. Koch's report that Mann had decreased left knee flexion but otherwise
normal findings, and that no doctor prescribed a cane for Mann. A cane, unlike
OxyContin, can be obtained without a physician's prescription. Thus, whether
or not a cane was formally prescribed, there is substantial evidence in the
record that Mann required the use of a cane, and that the use of a cane, as
needed, was ordered by Dr. Koch as part of Mann's treatment plan. The ALJ's
conclusion that Mann's left knee flexion was decreased, but otherwise normal,
does not address whether he required the assistance of a cane to effectively
ambulate due to increase hip pain. The ALJ may not draw his own inferences
about Mann's functional ability from the medical reports. Combs, 878 F.3d at
646. A comment in a medical record that a claimant was doing well for the
purposes of treatment "has no necessary relation to a claimant's ability to work
or to [his] work-related functional capacity." Nowling v. Colvin, 813 F.3d 1110,
1123 (8th Cir. 2016).
The only medical report that specifically addressed Mann's function with
respect to ambulation was Dr. Gloor's response to the state agency's preprinted form. However, the ALJ gave minimal weight to Dr. Gloor's responses
because he "did not specify any work-related limitations related to cane use."
Filing 7-2 at 25. But the form did not request specification of work-related
limitations related to cane use. Instead, the form requested a yes or no
response to further descriptions of the patient's ability to ambulate effectively
on a sustained basis without companion assistance. Dr. Gloor ignored the
yes/no response and explained that "Ron walks with aid of a cane. He often
limps from his right hip. I cannot quantify specific functional use." Thus, when
the form asked whether Mann is able to "walk a block at a reasonable pace on
rough or uneven surfaces," Dr. Gloor's answer must be understood to be "he
14
can, but with the use of a cane." If quantifying Mann's specific function was
important, the ALJ should have supplemented the record consistent with his
duty to fully and fairly develop the record. Combs, 878 F.3d at 646. The ALJ
was not free to infer from Dr. Gloor's responses on the form that Mann did not
require the use of a cane. To the contrary, when the form specifically asked if
Mann needed an assistive devise to ambulate, Dr. Gloor checked the "yes" box
and identified that the device needed was a cane.
The ALJ's failure to include a statement about the use of a cane or
assistive device for ambulation in the hypothetical posed to the vocational
expert was error. "Testimony from a vocational expert constitutes substantial
evidence only when based on a properly phrased hypothetical." Grissom v.
Barnhart, 416 F.3d 834, 837 (8th Cir. 2005). Hypothetical questions must
include "all the claimant's impairments supported by substantial evidence in
the record as a whole." Id.; Swope v. Barnhart, 436 F.3d 1023, 1025 (8th Cir.
2006).
There is substantial evidence in the record as a whole that Mann
currently can only effectively ambulate with the use of a cane. Additionally,
there is substantial evidence in the record as a whole that Mann continues to
require prescription pain medication to treat his pain symptoms. Many
employers require job applicants to undergo drug testing, and pain killers are
just one of the many drugs that the employer is looking for. Certainly,
employers do not want employees operating machinery under the influence of
narcotic medications. However, the ALJ did not include anything in his
hypothetical about the continuing need for prescription pain medications.
Neither did the hypothetical reference Mann's obvious obesity.
The ALJ was required to include all of Mann's impairments in a
hypothetical. He did not, and as such, this matter should be remanded to
15
determine Mann's residual functional capacity and whether there are jobs that
exist in significant numbers in the national economy that Mann could perform
considering all of Mann's impairments and disabilities.
Upon remand, the ALJ should consider whether there is substantial
evidence supporting the two consulting physician opinions that Mann retains
the capacity to stand or walk for six hours in an eight-hour day, can
occasionally climb ramps or stairs, ladders, ropes or scaffolds, and can
occasionally balance, stoop, kneel, crouch, and crawl. The consulting
physicians who offered these conclusions were unaware of Mann's left knee
arthroplasty and the level of dysfunction that Mann experienced thereafter. In
addition to considering whether Mann continues to require assistance with
ambulation, consideration must also be given to Mann's obesity, which the
ALJ's hypothetical ignored. Finally, the ALJ must address whether Mann
continues to require pain medication and the effect that may have on his ability
to engage in competitive employment. It may well be that the record in this
matter needs to be further developed. "[T]he ALJ bears a responsibility to
develop the record fairly and fully, independent of the claimant's burden to
press his case." Combs, 878 F.3d at 646.
Regarding his traumatic brain injury, Mann argues that the ALJ's
hypothetical did not accurately identify Mann's cognitive impairments and the
limitations resulting therefrom. In pertinent part, the hypothetical provided
that such person "would be limited to simple, routine, and repetitive tasks and
could only handle occasional changed in the work setting." Filing 7-2 at 58.
The State referred Mann to psychologist Dr. Leland Zlomke for an
assessment, which was performed on May 4, 2015. Dr. Zlomke's report found
Mann to have average cognitive ability, with recent and intermediate memory
mild to moderately impaired. Filing 7-8 at 51. Dr. Zlomke concluded that
16
Mann's recall after 20 minutes was poor, and that he would require a higher
level of supervision until very familiar with his expected activities. Based on
Mann's self-reports, Dr. Zlomke believed that he had difficulty accepting
changes. The State agency had another psychologist review Mann's file,
including Dr. Zlomke's assessment. That psychologist essentially adopted Dr.
Zlomke's findings and conclusions. Filing 7-3 at 26-27.
The ALJ reported that he gave great weight to the State agency
consultant's conclusion that Mann would require simple and uncomplicated
instructions because it was consistent with the finding of mild to moderate
memory impairment. Filing 7-2 at 25-26. But the ALJ stated that he gave little
weight to everything else. Specifically, the ALJ gave little weight to Dr.
Zlomke's opinion that Mann would require "a moderate to higher level of
additional supervision until he is very familiar with expected activities." Filing
7-2 at 25.
Dr. Zlomke, however, was not alone in his assessment that Mann would
require additional supervision, at least initially. The State agency consultant
similarly opined that Mann "might possibly need more-than-ordinary
supervision to assist in learning new tasks." Filing 7-3 at 26. The only basis
the ALJ gave for rejecting the conclusions of both experts was his view that the
opinions are inconsistent with the finding of mild to moderate memory
impairment. However, an ALJ "may not simply draw his own inferences about
plaintiff's functional ability from medical reports." Combs, 878 F.3d at 646.
The ALJ's hypothetical failed to include a conclusion that both mental
health experts included in their reports: that Mann either would or may
require additional supervision learning new tasks. Hypothetical questions
must include "all the claimant's impairments supported by substantial
evidence in the record as a whole." Grissom, 416 F.3d at 837.
17
On remand, the ALJ should determine whether the record needs to be
further developed regarding Mann's cognitive function. Both experts evaluated
Mann in 2015, prior to his left knee arthroplasty and his consistent need for
pain medication. If no further development is required, the ALJ should
reconsider his hypothetical regarding cognitive function and include all
impairments identified by the experts supported by substantial evidence.
2. APPOINTMENTS CLAUSE.
Mann raises for the first time on appeal a claim that the ALJ was an
inferior officer who, pursuant to Lucia v. SEC, 138 S. Ct. 2044 (2018), required
appointment by the President, Courts of Law, or the Commissioner.2
Consistent with Lucia, Mann asks that this matter be remanded and that a
different ALJ be assigned to determine his claim for benefits. 3 In response, the
Commissioner does not dispute (but also does not concede) that Social Security
ALJs are inferior officers as opposed to agency employees. Instead, the
Commissioner argues that Mann waived any claim pursuant to the
Appointments Clause by not timely raising the issue at the hearing before the
ALJ or to the Appeals Council.
2
The Appointments Clause provides, in pertinent part, the President "shall nominate, and
by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public
Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United
States, whose Appointments are not herein otherwise provided for, and which shall be
established by Law: but the Congress may by Law vest the Appointment of such inferior
Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads
of Departments." U.S. Const. Art. II § 2, cl. 2.
3
In Lucia, the matter was remanded for a new hearing before a different fact-finder. "To cure
the constitutional error, another ALJ (or the Commission itself) must hold the new hearing
to which Lucia is entitled." Lucia, 138 S. Ct. at 2055.
18
Appointments Clause challenges are deemed to be "in the category of
nonjurisdictional structural constitutional objections that could be considered
on appeal whether or not they were ruled upon below." Freytag v. C.I.R., 501
U.S. 868, 879-80 (1991). On remand, Mann may raise a challenge to the ALJ's
appointment if he so elects. It will be up to the Commissioner whether to have
the previous ALJ preside, or whether it would be prudent to assign a different
ALJ and avoid any later challenge that may arise pursuant to Lucia.
IV. CONCLUSION
There is not substantial evidence on the record as a whole supporting the
ALJ's denial of benefits. This matter must be remanded for reconsideration
consistent with this Memorandum and Order.
IT IS ORDERED:
1.
Mann's motion for reversal of the Commissioner's final
decision is granted.
2.
The Commissioner's motion to affirm the Commissioner's
final decision is denied.
3.
The Commissioner's decision is reversed.
4.
This matter is remanded to the Commissioner pursuant to
sentence four of 42 U.S.C. § 405(g) for further consideration
consistent with this Court's Memorandum and Order.
5.
A separate judgment will be entered.
19
Dated this 6th day of December, 2018.
BY THE COURT:
John M. Gerrard
Chief United States District Judge
20
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