Jenkins v. Astrue
Filing
23
MEMORANDUM OPINION on the review of the decision of defendant Commissioner of the Social Security Administration. Upon review, the court finds the Commissioners decision will be vacated, and this matter remanded for the award of SSD benefits to Mr. Jenkins. A separate order will be entered in accordance with this memorandum opinion. Ordered by Senior Judge Lyle E. Strom. (MKR)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JOHN K. JENKINS,
)
)
Plaintiff,
)
)
v.
)
)
MICHAEL J. ASTRUE,
)
Commissioner of the Social
)
Security Administration,
)
)
Defendant.
)
______________________________)
8:11CV266
MEMORANDUM OPINION
This matter is before the Court on a request for review
of the decision of defendant Commissioner of the Social Security
Administration (“SSA”) denying Social Security Disability
Insurance (“SSD”) benefits to plaintiff John K. Jenkins (“Mr.
Jenkins”), filed pursuant to 42 U.S.C. § 405(g).
Upon review,
the Court finds the SSA’s decision is not supported by
substantial evidence and should be reversed and the matter
remanded for award of Mr. Jenkins’ SSD benefits.
I.
Factual and Procedural History.
Mr. Jenkins was born on November 12, 1957.
He
graduated from high school and attended college for a year and a
half, where he studied radiation technology.
Mr. Jenkins was in
the military from 1976 to 1980, and he receives his medical care
from the Veterans Administration (“VA”).
His most recent jobs
were working as a custom plastic fabricator and as a movie
projectionist; he testified that he held down both jobs at one
time.
Mr. Jenkins was laid off from both jobs in 2007.
Mr. Jenkins applied for SSD benefits on July 15, 2008.
Mr. Jenkins alleges two major impairments:
the large intestine and hepatitis1 (Tr. 89).
malignant neoplasm of
Mr. Jenkins alleges
he has been disabled since April 29, 2008, when he had colon
resection surgery to treat his colon cancer.
After the surgery,
he received a course of chemotherapy, which was completed on
November 26, 2008.
His medical records do not indicate any
recurrence or metastasis of the cancer.
However, despite
successful treatment of his colon cancer, Mr. Jenkins claims that
he suffers from rectal incontinence that does not allow him to
work.
On August 27, 2008, Glen Knosp, M.D., a state agency
reviewing physician, completed a Physical RFC Assessment of Mr.
Jenkins for his initial disability application (Tr. 483-91).
Dr.
Knosp listed Mr. Jenkins’ diagnoses as colon cancer with ongoing
chemotherapy and hepatitis C (Tr. 483).
Dr. Knosp stated that
Mr. Jenkins’ diagnoses limit him to lifting no more than fifty
pounds occasionally and twenty-five pounds frequently, standing
or walking about six hours in an eight-hour workday, and sitting
1
Mr. Jenkins has not alleged that the hepatitis limits him
in any way.
-2-
about six hours in an eight-hour workday (Tr. 484).
On August
27, 2008, the SSA denied Mr. Jenkins’ initial SSD benefits claim.
On January 9, 2009, Arthur Weaver, D.O., also a state
agency reviewing physician, completed a second Physical RFC
Assessment of Mr. Jenkins for the reconsideration of his
disability application (Tr. 628-29).
Dr. Weaver noted that there
were no new allegations since the last determination and that
“the RFC of 8/27/08 is affirmed as written with durational time
correction”2 (Tr. 628).
Dr. Weaver stated that “there was no
significant evidence of functional limitation prior to 4/29/08"
and that “chemotherapy side effects would be expected to largely
abate and [Mr. Jenkins] would be projected to 4/29/09," meaning,
presumably, that Mr. Jenkins would not be functionally limited
for more than a year after his date of onset of April 29, 2008
(Tr. 629).
denied.
On January 12, 2009, Mr. Jenkins’ claim was again
He then requested a hearing by an Administrative Law
Judge (“ALJ”).
On June 30, 2009, Judith Vogelsang, D.O, a state agency
reviewing physician, completed a third Physical RFC Assessment of
Mr. Jenkins (Tr. 775-80).
diagnoses as follows:
Dr. Vogelsang listed Mr. Jenkins’
adenocarcinoma of colon status post low
2
Mr. Jenkins originally claimed a date of onset of December
25, 2007, and then changed the date to February 13, 2008, but
later acquiesced to Dr. Weaver’s opinion that there was no
disability prior to the cancer surgery on April 29, 2008.
-3-
anterior resection, and chemotherapy; osteochondroma right knee;
hepatitis C; BPH (Tr. 775).
Dr. Vogelsang stated that Mr.
Jenkins’ diagnoses limited him to lifting no more than twenty
pounds occasionally and ten pounds frequently, standing or
walking about six hours in an eight-hour workday, and sitting
about six hours in an eight-hour workday (Tr. 776).
Dr.
Vogelsang wrote that Mr. Jenkins should be limited to only
occasional climbing, kneeling, crouching, and crawling (Tr. 777).
In her case analysis, Dr. Vogelsang wrote that as of May 2008,
according to a two-week follow-up surgery note, Mr. Jenkins has
“been moving his bowels fairly normally without difficulty” (Tr.
781).
Dr. Vogelsang concluded, “Projected RFC for the period of
4/29/2008-4/2009 and current would be as indicated on the RFC
form dated 6/30/2009.
This RFC could decline in the future with
his past history” (Tr. 783).
On September 15, 2009, Mr. Jenkins answered
interrogatories posed by the SSA.
The SSA asked, “What is it
about your mental or physical problems that prevents you from
working?” (Tr. 208).
Mr. Jenkins replied, “I have no control
over my bowel movements.
The doctors cut out a lot of the muscle
around my colon and I have at least one accident a day.
I need
to change my clothes and take a shower after I have an accident.”
Id.
The SSA also asked, “Do you ever go shopping, if so, where
and for what?” (Tr. 211).
Mr. Jenkins replied, “I will go
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grocery shopping for necessities, but I have had four or five
accidents at the store in the last six months.”
Id.
asked, “Do you attend religious or family events?”
The SSA
Id.
Mr.
Jenkins replied, “No, I am afraid I will have a bowel accident.”
Id.
On October 20, 2009, Mr. Jenkins’ primary care
physician, Steven Gonzalez, M.D., wrote a letter to Mr. Jenkins’
attorney regarding Mr. Jenkins’ rectal incontinence.
Dr.
Gonzalez described Mr. Jenkins’ cancer surgery and chemotherapy.
Dr. Gonzalez then wrote, “[Mr. Jenkins’] only symptom at the
present time is rectal incontinence and rectal irritation” (Tr.
804).
Dr. Gonzalez continued,
Mr. Jenkins relates that he will
have 6-8 bowel movements every
night characterized by small and
formed stool; however, he will have
loose stool which causes rectal
incontinence as he has no control
whatsoever when his stools are
loose. He is unable to work as he
will have intermittent soiling with
rectal discharge with little
warning.
He cannot afford diapers and is
thus soiling his underwear. He
relates that he can go one or two
days without fecal incontinence but
that it can occur unpredictably
about once every three days. As
such, he is unable to work as a
plastic fabricator.
(Tr. 805).
Dr. Gonzalez’s assessment was as follows:
“Stage IIa
adenocarcinoma of the colon, status post complete resection,
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doing well clinically without evidence of recurrence.
The
treatment has been complicated by rectal tenesmus, urgency, and
incontinence which render it difficult for Mr. Jenkins to
continue full and gainful employment.”
Id.
Dr. Gonzalez stated,
“It is my expectation that such rectal incontinence will persist
for at least another 12 months and perhaps life-long.”
Id.
A hearing before the ALJ took place on October 29,
2009, to review Mr. Jenkins’ SSD benefits claim.
At the hearing,
Mr. Jenkins testified, “I have no warning when I have a bowel
movement and I don’t know until it just starts coming out and
then I can’t push out what’s in there and I can’t stop from
what’s coming out . . .” (Tr. 67).
Mr. Jenkins testified that he
had complained of this issue to his doctors after his surgery,
who had told him that his bowel problem was “normal” and that “it
could take up to a year to start getting your control again.
So
I never brought it up too much until he left and I got a new
doctor and she told me the same thing.”
Id.
Mr. Jenkins
testified that he only sees Dr. Gonzalez once a year, which is
why Mr. Jenkins had mentioned the rectal incontinence to Dr.
Gonzalez only recently, a month before the hearing.
Mr. Jenkins testified that he changes his adult diapers
4-5 times a day or during the night.
After a bowel movement at
work, he would have to go to the bathroom to clean up, which
would not be possible when running nine movies at a time.
-6-
In
addition, after taking 5-10 minutes off work to get cleaned up,
he might have another bowel movement just minutes later “because
all of my feces doesn’t come out all at once” (Tr. 70).
Although
the adult diaper contains the feces, Mr. Jenkins testified, “If
it’s a loose stool, it’s definitely shower time” (Tr. 71-72).
Mr. Jenkins candidly testified that other than the bowel problem,
there is no other medical problem that would prevent him from
working.
The ALJ posed the following hypothetical to the
vocational expert at the hearing:
Alright, the first hypothetical is
– no mental is alleged, but from a
physical standpoint, he’s capable
of medium exertional work, could
occasionally lift or carry 50
pounds, frequently lift or carry 25
pounds, no restriction in stand,
sit or walk. He could frequently
do all postural, except for
crawling, which should be only
occasional and should avoid, I’m
going to say, I don’t really see a
basis to say avoid hazards. DDS
had down avoid hazards. I’m not
sure what that would be based on.
But let’s just say avoid ladders,
ropes, scaffolds. With that
functional capacity, could he
return to his past work?
(Tr. 76).
Based on the hypothetical, the vocational expert
stated, “[He] would be able to return to his work as the fixture
fabricator as the DOT describes it, at the medium level, and also
return to the motion picture projectionist, as well.”
-7-
Id.
The
vocational expert also testified that the hypothetical worker
could perform a “very wide range . . . . nearly a full range of
medium” as well as light work, “certainly the unskilled” (Tr. 7677).
The ALJ then added that the hypothetical worker needed
“an unscheduled bathroom break” (Tr. 78).
The vocational expert
testified that this addition would rule out work as a fabricator
and a movie projectionist (Tr. 78).
However, other possibilities
would not be ruled out, including medium level jobs such as
“industrial janitor,” “warehouse worker,” and “material handler,”
among others, as well as many light level jobs (Tr. 78-79).
With
the addition to the hypothetical of the need to wear a diaper,
the vocational expert testified that “I have had some experience
with that.
And it varies with the degree of severity of the
problem. . . . If they weren’t able to manage [the incontinence],
we just weren’t able to help them find work” (Tr. 81).
Finally, the ALJ asked, “Now, lastly, based on the
testimony that you’ve heard today from Mr. Jenkins, do you think
he could do the type of jobs that you have identified?”
Id.
The
vocational expert replied, “Based on his testimony, I would say
no and that’s because of the frequency of the incontinence and
the requirement that he indicated at least half of those times he
would have to shower to clean up.”
-8-
Id.
On March 16, 2010, the ALJ issued an opinion upholding
the denial of Mr. Jenkins’ SSD benefits claim.
Due to a “central
print error,” the notice of unfavorable opinion was sent to Mr.
Jenkins on May 7, 2010 (Tr. 17).
The ALJ evaluated Mr. Jenkins’
claim under the mandated five-step sequential process.
C.F.R. § 404.1520(a).
See 20
At step one, the ALJ found that Mr.
Jenkins had not engaged in substantial gainful activity since
April 29, 2008, the alleged onset date of his disability.
At
step two, the ALJ found that Mr. Jenkins’ impairments, Stage IIA
adenocarcinoma of the colon, in remission, and hepatitis C, were
severe.
At step three, the ALJ found that Mr. Jenkins’
impairments did not meet one of the listed impairments found in
20 C.F.R. pt. 404, subpt. P, app. 1.
Next, the ALJ determined that Mr. Jenkins had an RFC
to perform medium work, defined in
20 CFR 404.1567(c), with the
ability to lift and carry 20 pounds
occasionally and 10 pounds
frequently. He has no restrictions
in the ability to stand, sit or
walk. The claimant can frequently
perform all postural activities but
can only occasionally crawl and
should avoid ladders, ropes and
scaffolds. In addition to normal
breaks, he could occasionally need
a bathroom break unscheduled for 510 minutes; he wears adult diapers.
(Tr. 23).
In making this determination, the ALJ found Mr.
Jenkins’ “medically determinable impairments could reasonably be
-9-
expected to cause the alleged symptoms; however, [Mr. Jenkins’]
statements concerning the intensity, persistence, and limiting
effects of these symptoms are not credible to the extent they are
inconsistent with the above residual functional capacity
assessment” (Tr. 25).
The ALJ stated, “At hearing, for the first
time, claimant raised a new problem:
loss of control over his
bowel movements” (Tr. 24).
The ALJ found that Dr. Gonzalez’s opinion that Mr.
Jenkins cannot work “was provided by patient report only and is
not given great weight because it is inconsistent with the record
as a whole including VA treatment notes and [Mr. Jenkins’] own
statements” (Tr. 25).
The ALJ noted, “There has been no effort
to treat the symptom with medication or diet. . . . The doctor
did not comment on the ability to control the symptom with adult
diapers or any conservative measures.”
Id.
“The medical
evidence . . . fails to support the alleged severity of [Mr.
Jenkins’] impairments.
The undersigned notes there is no mention
of loose stool complaints or problems of incontinence in his VA
records” (Tr. 26).
In addition, “Based on his reported daily
activities, [Mr. Jenkins’] impairments do not appear as limiting
as he has alleged.”
Id.
At step four, the ALJ found that Mr. Jenkins was able
to perform his past relevant work as a movie projectionist.
step five, the ALJ found, “Based on the testimony of the
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At
vocational expert, . . . considering [Mr. Jenkins’] age,
education, work experience, and residual functional capacity,
[Mr. Jenkins] is capable of making a successful adjustment to
other work that exists in significant numbers in the national
economy” (Tr. 28).
Therefore, the ALJ determined that Mr.
Jenkins was not disabled and did not qualify for SSD benefits.
On June 22, 2011, the Appeals Council declined Mr.
Jenkins’ request for review, so the ALJ’s decision is now the
final decision of the SSA.
Mr. Jenkins timely filed a complaint
with the United States District Court for the District of
Nebraska on August 3, 2011.
II.
A.
Discussion.
Standard of Review.
When reviewing an ALJ’s decision, the Court “must
determine ‘whether the ALJ’s decision complies with the relevant
legal requirements and is supported by substantial evidence in
the record as a whole.”
Martise v. Astrue, 641 F.3d 909, 920
(8th Cir. 2011) (quoting Halverson v. Astrue, 600 F.3d 922, 929
(8th Cir. 2010)).
“Substantial evidence” is
relevant evidence that a reasonable
mind might accept as adequate to
support a conclusion. Substantial
evidence on the record as a whole,
however, requires a more
scrutinizing analysis. In the
review of an administrative
decision, the substantiality of
evidence must take into account
whatever in the record fairly
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detracts from its weight. Thus,
the court must also take into
consideration the weight of the
evidence in the record and apply a
balancing test to evidence which is
contradictory.
Id. at 920-21 (quoting Halverson, 600 F.3d at 929).
“‘If, after
reviewing the record, the court finds it is possible to draw two
inconsistent positions from the evidence and one of those
positions represents the ALJ’s findings, the court must affirm
the ALJ’s decision.’”
Partee v. Astrue, 638 F.3d 860, 863 (8th
Cir. 2011) (quoting Goff v. Barnhart, 421 F.3d 785, 789 (8th Cir.
2005)).
The Court may not reverse the ALJ’s decision “merely
because [the Court] would have come to a different conclusion.
Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011) (citing Finch
v. Astrue, 547 F.3d 933, 935 (8th Cir.2008)).
“bears the burden of proving disability.”
B.
The claimant
Id. at 615.
The ALJ’s Decision.
1.
Credibility of Mr. Jenkins.
An ALJ’s credibility findings must be supported by
substantial evidence.
(8th Cir. 1992).
Robinson v. Sullivan, 956 F.2d 836, 839
For example, “In analyzing a claimant’s
subjective complaints of pain, an ALJ must examine: ‘(1) the
claimant’s daily activities; (2) the duration, frequency, and
intensity of the pain; (3) precipitating and aggravating factors;
(4) dosage, effectiveness, and side effects of medication; [and]
(5) functional restrictions.’”
Dunahoo v. Apfel, 241 F.3d 1033,
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1038 (8th Cir. 2001) (quoting Polaski v. Heckler, 739 F.2d 1320,
1322 (8th Cir. 1984)).
If the ALJ gives “good reasons” for not
crediting the claimant that is supported by the record, the Court
will defer to the ALJ’s judgment.
Robinson, 956 F.2d at 841.
Here, the ALJ found that Mr. Jenkins’ testimony was not
believable, in part because the ALJ stated that Mr. Jenkins was
complaining of incontinence for the first time at the hearing.
But Mr. Jenkins had described his bowel problems earlier, as
noted above, when he answered the SSA’s interrogatories.
The ALJ
also noted that Mr. Jenkins was not substantially impaired in his
activities of daily living because Mr. Jenkins could go grocery
shopping; the ALJ did not note that Mr. Jenkins stated that he
has had four or five accidents while shopping.
The ALJ stated
that Mr. Jenkins enjoys television and fishing; the ALJ did not
mention that Mr. Jenkins avoids church and social activities
because of the fear of a bowel accident.
The ALJ found Mr.
Jenkins not credible because on one occasion Mr. Jenkins said he
wears diapers, while on another occasion, Mr. Jenkins said he
cannot afford diapers.
Both of these statements could have been
true at the time Mr. Jenkins made them; the more important issue
is Mr. Jenkins’ need to purchase diapers at all.
As quoted above, Mr. Jenkins described his bowel
problems in his answers to the SSA’s interrogatories and at the
ALJ hearing with specificity.
In addition, he explained why he
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did not mention the problem to his medical providers until
recently.
Mr. Jenkins forthrightly stated that the rectal
incontinence is the only medical problem that keeps him from
working.
The SSA states in its brief that Mr. Jenkins’ “alleged
limitations would be disabling if true” (Filing No. 21, at 11).
The Court finds that the evidence supports Mr. Jenkins’
allegations of his limitations.
The Court finds Mr. Jenkins to
be a credible witness to his own bowel function.
2.
Opinion of Dr. Gonzalez, Treating Physician.
Mr. Jenkins alleges that the ALJ erred in impermissibly
discounting the opinion testimony of Dr. Gonzalez, his primary
physician.
Generally, “‘a treating physician’s opinion is
entitled to substantial weight.’”
Martise, 641 F.3d at 925
(quoting Brown v. Atrue, 611 F.3d 941, 951-52 (8th Cir. 2010)).
However, an ALJ “may justifiably discount a treating physician’s
opinion when that opinion ‘is inconsistent with the physician’s
clinical treatment notes.’”
Id. (quoting Davidson v. Astrue, 578
F.3d 838, 843 (8th Cir. 2009)).
Here, the ALJ concluded, “Dr. Gonzalez’s opinion that
the claimant cannot work was provided by patient report only and
is not given great weight because it is inconsistent with the
record as a whole including VA treatment notes and [Mr. Jenkins’]
own statements” (Tr. 25).
But it is unclear how Mr. Jenkins
would otherwise show Dr. Gonzalez what the problem is other than
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to report it.
In addition, while Mr. Jenkins did deny bowel
problems during some of his VA medical visits, Mr. Jenkins
explained in his testimony as to why he did not frequently
mention his bowel problems during the course of his cancer
treatments.3
The ALJ suggested medical treatment for Mr. Jenkins
when she wrote, “There had been no effort to treat the symptoms
with medication or diet.”
In so doing, the ALJ ignored Dr.
Gonzalez’s medical opinion, namely, “It is my expectation that
such rectal incontinence will persist for at least another 12
months and perhaps life-long.”
The ALJ also suggested that
“conservative measures” might aid Mr. Jenkins, but the ALJ did
not indicate what those measures are or why Dr. Gonzalez should
have suggested them.
Finally, the ALJ implied that a normal
rectal examination is inconsistent with rectal incontinence, but
did not cite any medical authority to substantiate her medical
conclusion.
The Court finds no reason to doubt Dr. Gonzalez’s
medical opinion regarding the persistence of Mr. Jenkins’ rectal
incontinence.
The Court finds that the ALJ did not have
substantial evidence that would support discounting Dr.
3
The ALJ noted that Mr. Jenkins testified that he is
missing a thumb and three fingers on his left hand, and that he
has little use of it. The Court found little complaint by Mr.
Jenkins of this deficit to his medical doctors.
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Gonzalez’s opinion, considering that Dr. Gonzalez is Mr. Jenkins’
treating physician.
3.
Opinion Testimony of the Vocational Expert.
At step four, the ALJ found that Mr. Jenkins was able
to perform his past relevant work as a movie projectionist.
But
the ALJ ignored the fact that when she added the restriction that
the hypothetical worker needed “an unscheduled bathroom break,”
the vocational expert testified that this addition would rule out
work as a movie projectionist (Tr. 78).
At step five, the ALJ stated that “Mr. Jenkins is
capable of making a successful adjustment to other work that
exists in significant numbers in the national economy” (Tr. 28).
The ALJ herself stated as part of Mr. Jenkins’ RFC, “he wears
adult diapers.”
Yet the ALJ ignored the fact that with the
addition of a the need to wear a diaper, the vocational expert
testified that “it varies with the degree of severity of the
problem. . . . If they weren’t able to manage [the incontinence],
we just weren’t able to help them find work” (Tr. 81).
Finally, the ALJ discounted the answer to her question,
“Now, lastly, based on the testimony that you’ve heard today from
Mr. Jenkins, do you think he could do the type of jobs that you
have identified?” (Tr. 81).
The vocational expert replied,
“Based on his testimony, I would say no and that’s because of the
frequency of the incontinence and the requirement that he
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indicated at least half of those times he would have to shower to
clean up” (Tr. 81).
Based on the foregoing, this Court finds
that Mr. Jenkins’ need for frequent bathroom breaks to clean up
and his need to wear a diaper do not allow for a job in the
national economy.
III. Conclusion.
The Commissioner’s decision will be vacated, and this
matter remanded for the award of SSD benefits to Mr. Jenkins.
A
separate order will be entered in accordance with this memorandum
opinion.
DATED this 24th day of February, 2012.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court
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