Depuy v. Colvin et al

Filing 19

MEMORANDUM AND ORDER regarding Complaint 1 filed by Heather Depuy. After carefully reviewing the record, the court finds the case should be remanded. Judgment shall be entered by separate document, providing that the Commissioner's decision is reversed and the cause remanded for further proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
HEATHER DEPUY,
Plaintiff,

8:14CV10

vs.
MEMORANDUM AND ORDER
CAROLYN
W.
COLVIN,
Commissioner of Social Security;

Acting

Defendant.
Plaintiff Heather Depuy (“Depuy”), seeks review of a decision by the defendant
denying her application for disability benefits under Title II of the Social Security Act
(“Act”), 42 U.S.C. §§ 42 U.S.C. et seq. After carefully reviewing the record, the court
finds the case should be remanded.

I.

PROCEDURAL BACKGROUND

Depuy applied for social security disability benefits on January 14, 2011, claiming
an onset date of August 1, 2008. (Social Security Transcript (“TR”) at 243-44). Her
application was denied at the initial and reconsideration levels. A hearing was held
before an Administrative Law Judge (“ALJ”) and on July 17, 2012, Depuy received a
fully favorable decision awarding her benefits from the onset of disability – August 1,
2008. (TR. 111-112). The Appeals Council gave notice of review of the decision and on
December 11, 2012, issued an order of remand to the same AJL. (TR 123-29).

The ALJ conducted a second hearing and on May 1, 2013, issued a decision
finding Depuy was not entitled to a disability award. Depuy appealed the decision and
the Appeals Council denied the request for review on November 15, 2013. In response,
Depuy filed the action now before the court.

II.

THE ALJ’S DECISION

The ALJ evaluated Depuy’s claims through all five steps of the sequential analysis
prescribed by 20 C.F.R. 404.1520 and 416.920. (T.R. 14-28). As reflected in her
decision, the ALJ made the following findings:

1.

The claimant last met the insured status requirements of the Social Security Act on
March 31, 2009.

2.

The claimant did not engage in substantial gainful activity during the period from
her alleged onset date of August 1, 2008, through her last insured date of March
31, 2009 (20 CFR 404.1571 et seq.).

3.

Through the date last insured, the claimant had the following severe impairments:
a history including a motor vehicle accident at age 17 and a fracture of the lumbar
spine (20 CFR 404.1520(c)).

4.

Through the date last insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1520(d), 404.1525 and 404.1526).

5.

After careful consideration of the entire record, through the date last insured, the
claimant had the residual functional capacity to perform the full range of light
work as defined in 20 CFR 404.1567(b).

6.

Through the date last insured, the claimant was capable of performing past
relevant work as a receptionist, DOT 352.667-010, semi-skilled, light; general

2

office clerk, DOT 219.362-010, semi-skilled, light; and front desk clerk, DOT
238.367-038, semi-skilled, light. This work did not require the performance of
work-related activities precluded by the claimant's residual functional capacity (20
CFR 404.1565).

7.

The claimant was not under a disability, as defined in the Social Security Act, at
any time from August 1, 2008, the alleged onset date, through March 31, 2009, the
date last insured (20 CFR 404.1520(1)).

TR. 12-22.

III.

ISSUES RAISED FOR JUDICIAL REVIEW

Depuy’s complaint requests judicial review of the ALJ’s decision. She raises the
following arguments in support of her claim for reversal.

1)

The ALJ gave improper weight to the opinion of the medical expert who

testified at the hearing before the ALJ.

2)

The ALJ did not give proper consideration to Depuy’s reported limitations

in her daily activities.

3)

The ALJ failed to address the opinion of one of Depuy’s treating physicians

– Dr. Alan Williamson.

3

IV.

THE RECORD AND PROCEEDINGS BEFORE THE ALJ

In 1994, Depuy was involved in a car accident resulting in a sustained spinal cord
injury and a fractured pelvis and hip. As a result of the car accident, she underwent
spinal and pelvic reconstructive surgery. She returned to work at that time, but alleges
her condition deteriorated over time and her increased pain level made it impossible for
her to return to work fulltime by 2004. At that time, her husband was on active duty in
the United States Air Force and was stationed in Japan. Depuy and their children lived in
Japan with her husband. In Japan, she received treatment for trochanteric bursitis and
chronic low back pain. (TR. 558-59).

Depuy underwent a physical therapy evaluation with Bradley Kime on September
22, 2004, due to her complaints of low back pain. (TR. 558). She described her pain as
“constant dull pain localized at lumbar spine with intermittent sharp pain at sacrum . . . .”
(TR. 558). She further stated that bending aggravated her pain while sitting properly
alleviated it. (TR. 558). Depuy reported her pain as 9 out of 10. (TR. 558). Kime
implemented a treatment plan that involved pool exercises, a continued cardiovascular
exercise program for 20 minutes a day, and a lumbar spine stabilization program. (TR.
558).

During this time period, Depuy was also being treated for post-partum depression.
(TR. 555). She was taking anti-depression medication and, as part of her care plan,
indicated she wanted to take time every day for exercise. (TR. 555).

On September 26, 2006, Depuy sought treatment for her chronic pain from Dr.
Wanker. (TR. 519). She reported pelvic and low back pain at 1 out of 10. Yet, she also
described her lower back pain as “chronic” and “unrelenting.” (TR. 519). A motor
examination revealed no dysfunction and she had normal flexion and extension of her

4

knees and ankles. (TR. 521). However, the lower back pain was “elicited by motion . . .
[and] flexion. (TR. 521). Her “lumbosacral spine motion was normal.” (TR. 521).
Depuy complained of difficulty climbing stairs and a treating physician at that time noted
that Depuy “would benefit from first floor housing . . . due to pain walking up stairs.”
(TR. 521).

On December 12, 2006, Depuy underwent an examination for overseas clearance.
(TR. 501). She reported back pain, but the tests on her range of motion were normal.
(TR. 502).

In March of 2007, the Depuys relocated to the Air Force Base in Spangdahalem,
Germany. (TR 341). Depuy reported continuing problems with back and hip pain and
was also treated for depression and anxiety. (TR. 471). Although she sought single-level
housing at the base, the family was housed in a two-story residence. She reported that
she fell almost daily going up or down the stairs due to her chronic pain. (TR. 342). On
November 6, 2007, she was examined and given a steroid injection for bursitis in her hip.
Depuys’ husband was reassigned to Offutt Air Force Base, and the family moved
to Bellevue, Nebraska in May of 2008. (TR. 344). Depuy attempted to return to work in
August of 2008, but after two weeks, she was unable to continue because her “headaches,
hip, nerve and back pain became more than [she] could tolerate.” (TR. 345). A left hip
x-ray in October of 2009 revealed “chronic traumatic and postoperative changes” in her
left hip. (TR. 669). That same day she received a steroid injection for her trochanteric
bursitis. (TR. 458-60). The physician notes from that visit indicate x-rays of Depuy’s
pelvis and lateral left hip “demonstrates two level spinal fusion from L4 to S1 with
degenerative changes [and] multiple healed pelvic fractures.” (TR. 460).

5

The physician prescribed physical therapy for Depuy. At the initial physical
therapy evaluation, she reported difficulty with sitting, standing, walking, stairs, and
lifting more than 20 pounds. She also reported she had not been free of pain since the
automobile accident in 1994. (TR. 458).
Dr. Eric Grajkowski, one of Depuy’s treating physicians at the time, wrote a
statement, dated November 16, 2009, in support of the Depuy’s request for single-level
housing due to the “pain in [Depuy’s] back and her lower extremities.” (TR. 666). In that
same letter, he noted that her pain was chronic “though she does well with the help of
orthopedic visits along with physical therapy.” (TR. 666). At a physical therapy visit in
December of 2009, she noted that her pain was a 0 out of 10 at that time, but earlier in the
day when she was sitting in a car it was 7 or 8 out of 10. (TR. 441).
In March of 2010, Dr. Grajkowski opined that Depuy was “not a good candidate to
work outside of the home” due to her chronic pain from the 1994 accident and because
“any physical activity . . . will increase her pain level and her inability to function at these
tasks.” (TR. 665). In May of 2010, Depuy reported left hip pain, but normal movement
of all her extremities. (TR. 416-417). In June of 2010, Depuy reported hip pain of 8 out
of 10 if she sat in a chair with her hips flexed at a 90 degree angle for more than 5
minutes.

(TR. 413).

In November of 2010, her treating physicians completed the

paperwork necessary for her to receive a permit allowing her to park in handicapped
spaces, indicating she was unable to walk more than 200 feet without assistance. (TR.
403 and TR. 350).
In 2011, Dr. Stephanie Erickson, Depuy’s treating physician at the time, wrote a
statement in support of Depuy’s disability claim and opined “given [Depuy’s] pain level
and chronic problems related to mobility and function she is unable to work.” (TR. 389).
Dr. Erickson opined in March of 2011, that Depuy could sit for only one hour out of an

6

eight hour day, and could occasionally lift up to, but never more than, five pounds. (TR.
494). Dr. Erickson further opined Depuy was unable to work two consecutive days and
that her symptoms were severe enough to interfere with her attention, concentration,
persistence, and pace, and that the limitations had been in effect since August 1, 2008.
(TR. 494-95).

In April of 2011, Dr. Tyrus Soares, a pain specialist at the University of Nebraska
Medical Center, met with Depuy. Dr. Soares’ notes indicate that he was reluctant to
change her pain medication because she was “doing well on such a low dose.” (TR. 600).
During the visit, Depuy reported her level of pain was 3 out of 10 and that she was able to
drive her children to school. She also reported that some days her pain was so bad “her
only relief [was] to lay in bed” about twice a week. (TR. 599). On April 27, 2011, she
saw Dr. Erickson for pain management but reported hip and lower back pain at 2 out of
10.

On June 7, 2011, Depuy visited Dr. Erickson for pain management.

Dr.

Erickson’s notes state:

Doing well. Has now been to two pain consultations and (Dr. Cook and Dr.
Soares) and they-are agreeable to our Percocet/vicodin/flexeril/NSAID plan
with physical therapy, weight loss, and ambien for sleep. Heather is happy
with her pain level now and feels better.
(TR. 643).

However, in March of 2012, Depuy was still seeking treatment for her chronic
back pain. Dr. Erickson opined Depuy would benefit from a Transcutaneous Electrical
Nerve Stimulation (“TENS”) unit for her pain by noting Depuy’s pain was “chronic and
intractable.” (TR. 618). Depuy apparently made this request because she “tried her

7

friends [TENS] unit that covered most of [Depuy’s] lumbar region . . . she said it helped
immensely.” (TR. 618).

On May 3, 2012 she again visited Dr. Erickson. She reported her pain level was 2
out of 10. Dr. Erickson noted:

Pt continues to do well. She has joined Weight Watchers and has lost 13lbs.
Her stress is better with her husband home, she is trying to exercise more.
We recently renewed meds and she was just checking in. The chronic pain
syndrome is related to an MVA in 1994 where she sustained a spinal cord
injury and fractured pelvis and left hip. She has been to therapy, she has
been evaluated by both Dr. Cook and Dr. Soares. She maintains a decent
pain control with 30 of vicodin, 60 percocet a month and nighty ambien and
flexeril. She is able to care for her family and home. She does not work
outside the home. She is currently pursing disability.
(TR. 611).
In May, Depuys exchanged the TENS unit for one that “stays in place better than
the current [one] but the modality is good.” (TR. 613). Dr. Erickson also noted that
Depuy was using a “service dog that helps her balance and picks things off the floor. She
may need a medical necessity letter in the future.” (TR. 613).

Dr. Erickson completed two additional letters elaborating on her previous
assessment of Depuy’s limitations. (TR. 354-55 & TR. 681). Dr. Erickson stated that
Depuy’s pain has “waxed and waned” over the years and various treatments – including
“hip injections, weight loss, physical therapy and medication management” – have
provided “intermittent relief.” (TR. 681). These opinions were based not only on Dr.
Erickson’s treatment notes, but also her review of Depuy’s medical file since 2003.

8

Depuy’s initial administrative hearing took place on June 18, 2012. (TR. 39-72).
The ALJ questioned Depuy and a vocational expert. On July 17, 2012, the ALJ issued a
fully favorable decision. (TR. 111-122). On December 11, 2012, the Appeals Council
remanded the ALJ’s decision to obtain additional information and for further evaluation
of the record. (TR. 123-29).
In March of 2013, Depuy’s new primary care doctor, Dr. Alan Williamson,
provided a statement of Depuy’s limitations, noting he agreed with Dr. Erickson’s
assessment and her previous statements regarding Depuy’s functional limitations. (TR.
682-83).
Depuy’s second administrative hearing took place on April 23, 2013 (TR. 73-107).
Plaintiff testified that she had stress- and anxiety-related migraines that required
hospitalizations. (TR. 77-78). She testified that she experienced constant pain in her
lower back and pelvis from the onset date of August 1, 2008 through the last date of
possible coverage of March 31, 2009. (TR. 2009). She further testified about the pain in
her hips caused by chronic bursitis, and she reported that she is unable to get groceries,
make dinner, or perform household chores. (TR. 82-83). She stated that she would sit for
1 hour, stand or walk for an hour, and lay down for 6 hours daily. (TR. 85-87).

Following instructions from the Appeals Council, the ALJ called a medical expert
– Steven Goldstein, M.D. – to testify about Depuy’s condition during the relevant period.
Dr. Goldstein indicated the evidence of record supported diagnoses of headaches and
status post back surgery. He testified that he did not find evidence of chronic pain during
the relevant period.

(TR. 92-93). And he further testified that the medical record

demonstrated Depuy’s range of motion in her hips was normal and that an injection
helped alleviate her pain. (TR. 97). Finally, he opined that Depuy was capable of light
work during the relevant period.

9

Vocational expert (“VE”) Deborah Determan testified about Depuy’s past relevant
work as a cashier and performing clerical functions. (TR. 101, 226-228). The ALJ posed
the following hypothetical to the VE:

Then assume for purpose of the following hypothetical questions that the
claimant is 31 years of age at onset, and has educational abilities, demands
[consistent] with [a] 12th grade [education], and has done the past relevant
work as a receptionist, a general office clerk, and a front desk clerk. It is an
individual who is involved in a motor vehicle accident at age 17, has
history of fracture of the lumbar spine and the bilateral. Let's see. I can't
read that. This is an individual who, based on the record as it is, from
8/1/08, to 3/31/09, does not have a formal diagnosis of migraines of
headaches or traumatic arthritis or traumatic bursitis. Simply status, post
motor vehicle accident and fracture of the lumber spine. This is an
individual who can pick up 20 pounds occasionally, 10 pounds frequently,
and sits down and walks six out of eight [hours]. Can this individual do her
past relevant work?
(TR. 105).

The VE opined the hypothetical claimant described by the ALJ would be able to
perform all of Depuy’s past relevant work. (TR. 105-06). Depuy’s attorney then asked
the VE to consider Depuy’s testimony and assume the claimant was experiencing
migraines more than once a week, could only sit for 20 to 30 minutes at a time for a total
of one hour a day, and stand and walk for about 5 minutes at a time for an hour out of
each day. (TR. 106). Based on those restrictions, the VE opined that a person would be
precluded from the past relevant work. (TR. 107).

The ALJ issued her unfavorable decision on May 1, 2013 (TR. 9-27). In reaching
her decision, the ALJ gave significant weight to the testimony of the testifying medical
expert in determining that the claimants’ only severe impairment was her history of the
lumbar spine fracture due to the 1994 motor vehicle accident. The ALJ determined the
10

evidence of record was not sufficient to establish any other severe impairments, including
migraine headaches or trochanteric bursitis. (TR. 15).

V.

LEGAL ANALYSIS

Section 205(g) of the Social Security Act, 42 U.S.C. ' 405(g), provides for judicial
review of a Afinal 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). A>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)). AThe 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). The court should not overturn an ALJ’s
decision so long as it is in the “zone of choice” even if the court disagrees with the ALJ’s
conclusion. Buckner v. Astrue, 646 F.3d 549, 556 (8th Cir. 2011).

A.

Evaluation of the Medical Evidence

The ALJ reviewed Depuy’s medical records and elicited testimony from medical
expert Dr. Steven Goldstein. Based on the information available, the ALJ determined to
11

give the most weight to Dr. Goldstein’s testimony while giving “little weight” to the
opinions of Dr. Erickson. (TR. 19). Depuy asserts the ALJ erred on both counts.

1.

Evidence of treating physicians

Depuy asserts the ALJ erred in not affording the opinion of Dr. Erickson sufficient
weight in her opinion.1
A treating physician's opinion should not ordinarily be disregarded and is
entitled to substantial weight. See Ghant v. Bowen, 930 F.2d 633, 639 (8th
Cir.1991). 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. See Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir.1998). By
contrast, “[t]he opinion of a consulting physician who examines a claimant
once or not at all does not generally constitute substantial evidence.” Id.
Likewise, the testimony of a vocational expert who responds to a
hypothetical based on such evidence is not substantial evidence upon which
to base a denial of benefits. See Nevland, 204 F.3d at 858.
Singh v. Apfel, 222 F.3d 448, 452 (2000).
If an ALJ discounts a treating physician’s opinion, she must express good cause
for doing so. Here, the ALJ gave the opinion of Dr. Erickson “little weight,” (TR.17),
specifically finding:
Dr. Erickson’s treatment records do not reflect the degree of pain reported
in [the RFC Dr. Erickson prepared], nor do the clinical findings correlate
with such significant functional restrictions. Treatment notes from Dr.
Erickson reflect medication management for chronic pain, yet the
claimant's pain is frequently noted to be in the low end on the severity scale
(typically 2 or 3 out of 10), the claimant generally reports a good overall
feeling, and/or is doing well. The medical record also documents decent
pain control with medication. Medical records prior to the date last insured
1

Depuy contrasts this with the ALJ’s first opinion in which she afforded Dr.
Erickson’s opinion substantial weight.
12

addressed primarily medical clearances in anticipation of moving abroad
and routine pregnancy checkups. No functional limitations were identified
in any of these records. In addition, records from Dr. Erickson suggest that
the claimant was generally stable on her pain medications and did not
identify significant functional limitations or deficits. (Exhibits lF, 9F, 14F,
and 15F).
(TR. 20).
Dr. Erickson was not Depuy’s treating physician during the relevant period. The
Eighth Circuit has held that the burden is on the claimant to show the existence of a
disability on or before the date that the insurance coverage expires notwithstanding the
fact the condition may be latent or degenerative. See Basinger v. Heckler, 725 F.2d
1166, 1168 (8th Cir. 1984). However, the Circuit has held “medical evidence of a
claimant's condition subsequent to the expiration of the claimant's insured status is
relevant evidence because it may bear upon the severity of the claimant's condition before
the expiration of his or her insured status.” Basinger, 725 F.2d at 1169 (8th Cir.1984).
See also Tilley v. Astrue, 580 F.3d 675, 681 (8th Cir. 2009); Wilson v. Sullivan, 886 F.2d
172, 177 (8th Cir. 1989)(medical reports after the insured status date expired can be
“highly relevant” and may “indicate a serious, incessant medical condition”). This is
especially true when the treating physicians’ notes are not directly in conflict with notes
from the relevant time period. Tilley, 580 F.3d at 680.
Thus, the court finds Dr. Erickson’s opinions are probative of Depuy’s condition
to the extent they are not inconsistent with the medical evidence of record. And there is
not substantial evidence on the record to completely disregard Dr. Erickson’s opinions, as
the ALJ did in denying Depuy benefits.
Dr. Erickson noted Depuy’s chronic pain and referred Depuy to pain management
on January 11, 2011, for the chronic pain due to the automobile accident. (TR. 388). Dr.

13

Erickson supported Depuy’s efforts to receive a handicapped parking permit – indicating
her belief Depuy could not walk for any great distance without assistance. (TR. 403).
Dr. Erickson prescribed a TENS unit for Depuy in an attempt to help alleviate her pain
which Dr. Erickson described as “chronic and intractable.” (TR. 618).
Dr. Erickson’s treatment notes do not fully support the findings of the RFC
submitted by Dr. Erickson on Depuy’s behalf. And the ALJ would have been justified in
significantly discounting Dr. Erickson’s opinions if Dr. Erickson based her RFC only on
her treatment notes alone. However, Dr. Erickson had access to all of Depuy’s medical
records dating back to 2003, and much of Depuy’s treatment and evaluation was
performed at the clinic where Dr. Erickson worked.
Dr. Erickson’s opinion is consistent with the notes of Depuy’s other treating
physicians – which the ALJ mostly ignored. For instance, Depuy was experiencing back
pain at 9 out of 10 as early as 2004. (TR. 558). She also reported, and sought treatment
for, “chronic and intractable pain” in 2006. (TR. 519). In 2006, she continually reported
backaches, even when being treated for other ailments. (TR. 505, 507, 514). She was
also taking oxycodone, acetaminophen, and ibuprofen at the time. (TR. 514). Depuy
attempted to return to work as a receptionist in 2008, (TR. 293), but was unable to do so
because of hip and back pain. Dr. Eric Grajkowski wrote a statement on Depuy’s behalf
recommending single-level housing due to Depuy’s chronic pain. (TR. 666). He later
opined that due to the nature the injuries she sustained from the motor vehicle accident
and her chronic pain, she was “not a good candidate to work outside the home,” (TR.
665), further noting Depuy’s pain increased with any physical activity. (TR. 665).

During a physical therapy visit Depuy reported that her pain could vary from 7-8
out of ten while sitting in a car, to 0 out of 10 that same day. (TR. 441). In June of 2010,

14

she reported that her hip pain was an 8 out) of 10 if she sits in a chair with her hips flexed
at 90 degrees for more than 5 min[utes], and increases the longer she sits.” (TR. 413).

At an appointment on October 6, 2009, Depuy reported hip pain of 7 out of 10 on
the pain scale during a visit with physician Dr. John Shereck. (TR. 459).

32 year-old female presents for evaluation of lateral left hip pain. The
patient describes having pain in her left hip intermittently for the past
several years, and she has been treated in the past successfully for
trochanteric bursitis. She has received steroid injections in the past with
good results. This episode has been present for approximately 6 months
and is persistent. The patient currently is using tramadol daily. The patient
describes that she started having low back, pelvic, and bilateral hip pain
following a motor vehicle collision in 1994 that resulted in multiple pelvic
fractures and lumbosacrat injury requiring surgeries. The patient currently
is using mobic and tramadol as directed. She has used Motrin in the past
without success.
(TR. 459).

In November of 2009, at PT evaluation she reported the following:

L hip pain rated 4/10, notes difficulty with prolonged sit, stand, walk, stairs,
lift>20 lb. States pain started April 1994 when she was in MVA, was Tboned. States has not been pain-free since the accident, notes laying down
helps, as does ultram, heat temporarily. Job is stay-home mom, states has
not been able to work due to inability to tolerate prolonged sit or stand.
States has ski machine, tries to walk some every day.2
(TR. 458). In June of 2010, she reported hip pain of 8 out of 10 on the pain scale. (TR.
14).

2

Depuy did not say she was able to use the ski machine and stated that she “tried”
to walk every day. That is, this statement is not contradictory to the record as a whole.
15

The treatment notes of Dr. Tyrus Soares, with whom Depuy consulted on April 26,
2011 at the direction of Dr. Erickson also, at least partially, supports Dr. Erickson’s
opinions. Dr. Soares notes Depuy’s pain has slowly advanced over time, but is controlled
by a “low dose of medication.” Depuy reported her pain on the date of her visit as 3 out
of 10, but that some days it was 8 out of 10, and it necessitated that she stay in bed two
days a week. (TR. 599). Dr. Soares’ notes indicated Depuy drives her kids to school and
is still “very active” but further noted she must take strong narcotics – Vicodin and
Percocet – daily, albeit at a low dose, to manage her pain, (TR. 599), which is
“aggravated by walking or standing.” (TR. 599). His notes also reflect that her back pain
was aggravated by standing and alleviated by sitting, but, in contrast, her leg and pelvic
pain is aggravated by sitting and only alleviated by standing.

(TR. 599).

He

acknowledged this created a paradox for her when she attempted to ease her pain. (TR.
Dr. Soares further noted that Depuy also requires Ambien to assist her in falling asleep
and resting through the night. (TR. 599).

Notwithstanding the contradictory nature of

these notes, the fact that she was reporting significant pain on a daily basis, had to be in
bed two days a week, and required daily doses of narcotics to alleviate pain and medicine
to help her sleep are all supportive of Dr. Erikson’s opinions.

There is simply not substantial evidence of record to completely discount Dr.
Erickson’s opinions regarding Depuy’s ability to return to work. And perhaps more
significantly, the ALJ erred in not discussing the other medical information, including
notes from additional treating physicians which provided an additional basis for Dr.
Erickson’s opinion.3

33

Depuy’s current physician, Dr. Alan Williamson, essentially adopted the
opinions of Dr. Erickson. Thus, the ALJ should have given some weight to Dr.
Williamson’s opinion as well.
16

2. The opinion of Dr. Steven Goldstein
Depuy argues the ALJ should not have given Dr. Goldstein’s opinion great weight.
The court agrees. “[T]he results of a one-time medical evaluation do not constitute
substantial evidence on which the AJL can permissibly base [her] decision . . . .” Cox v.
Barnhart, 345 F.3d 606 (8th Cir. 2003). “[O]pinions of doctors who have not examined
the claimant ordinarily do not constitute substantial evidence on the record as a whole.”
Bowman v. Barnhart, 310 F.3d 1080, 1085 (8th Cir. 2002). Likewise, a vocational expert
that “relies on the opinions of non-treating, non-examining physicians who reviewed the
reports of the treating physician to form an opinion of their own” is not substantial
evidence on which the ALJ can base a denial of benefits.

See Curran-Kicksey v.

Barnhart, 315 F.3d 964, 970 (8th Cir. 2003)(citing Nevland v. Apfel, 204 F.3d 853, 858
(8th Cir. 2000)).

Dr. Goldstein based his opinion solely on evidence dated from August 1, 2008
through March 31, 2009. While this is certainly the relevant period, Dr. Goldstein
completely ignored the evidence preceding and following that time period—all of which
provide context to the limited eight-month time frame he considered. Although Dr.
Goldstein acknowledged that Depuy was experiencing chronic pain from the 1994 motor
vehicle accident, he suggested it improved for a brief time during the relevant period,
(TR. 93), without acknowledging or discussing the fact that Depuy was treated for
chronic pain syndrome both before August 1, 2008 and after March 31, 2009. Further,
Dr. Goldstein’s opinion that Depuy could stand and walk six out of eight hours a day is
not supported by the record. The ALJ improperly relied solely upon Dr. Goldstein’s
opinion in determining the RFC and posing the hypothetical to the VE.

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B.

Credibility

AIt 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) (ABefore determining a claimant=s RFC,
the ALJ first must evaluate the claimant=s credibility.@). An ALJ Ais not required to
discuss every piece of evidence submitted,@ and the Afailure 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).

AIf 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) when 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 determined “[Depuy’s] statements concerning the intensity, persistence ,
and limiting effects of [her] symptoms are not credible to the extent they are inconsistent

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with the . . . residual functional capacity assessment.” In the questionnaire submitted in
support of her disability application, Depuy reported that her ability to perform most
activities of daily living were seriously inhibited due to her pain, weakness, and poor
sleep. (TR. 304-11). Depuy stated that she is able to perform household chores with
assistance and that most of her activities such as driving, washing dishes, picking up the
house, working in the garden, and driving are limited to less than 20 minutes at a time
due to her hip and back pain. (TR. 304). Depuy reported she was limited in performing
other activities, such as picking up objects off the floor, shoveling snow, and cleaning
that required bending over.

(TR. 304-11)

In refuting these assertions, the ALJ

specifically noted the report of Dr. Soares in which Depuy stated she drove her children
to school, gardened, trained dogs and remained very active. (TR. 19). Dr. Soares also
indicated that she was on a low dose of medication and doing well. (TR. 19).

The ALJ further noted that while Depuy did receive assistance with indoor and
outdoor chores from her husband and children, she “was still able to maintain a
household, do the grocery shopping, groom her dog, and attend her children’s school
ceremony’s and concerts.” (TR. 20). The ALJ found these described activities to be not
limited “to the extent one would expect, given the complaints of disabling symptoms and
limitations.” (TR. 20).
The ALJ did not provide “good reason” for discrediting the testimony and
Depuy’s self-described restrictions on daily living. The ALJ relies heavily on the report
of Dr. Soares. However, despite Dr. Soares assertion Depuy was doing “well” on low
doses of medication, he added a muscle relaxant to her medication regimen, (TR. 600),
and did not dispute her reports that she was not helped by previous injections and
therapy. And although she stated her pain upon consultation was 3 out of 10, she also
stated she had days, as many as twice a week, where the pain was 8 out of 10 and her
only relief was to lay in bed. (TR. 599). This report is consistent with Depuy’s other

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reports of pain and the limitations she placed on her daily activities as well as the fact her
treating physician described Depuy’s pain as waxing and waning since the automobile
accident. (TR. 681).

The ALJ also points to the fact Depuy was able to manage the household because
she could “do grocery shopping, groom her dog and attend her children’s school
ceremonies and concerts.” (TR. 20). However, both Depuy and her husband stated that
she needed help from her children and husband to fulfill these tasks. Further, she also
stated there were days she could not complete the tasks “due to back, hip, and nerve
pain.” (TR. 17). Her husband also reported that Depuy could not properly shower and
groom herself as often as she would otherwise. (TR. 314). Thus, to the extent she is able
to do some work around the house and do limited driving, her testimony is not supportive
of the assertion she can return to full time work. See Reed v. Barnhart, 399 F.3d 917,
923 (8th Cir. 2005);

Cf Dunahoo v. Apfel, 241 F.3d 1033, 1038-39 (8th Cir.

2001)(where claimant’s ability to perform household chores was considered inconsistent
with the claims of disabling, but the ALJ also relied upon the fact the claimant was
working part time as a cashier and actively seeking in discrediting her complaints).
Depuy’s subjective complaints of pain are supported by the fact she sought various
forms of pain management continually since at least 2004 including a regimen that
includes daily doses of narcotic pain medication, attempted to return to work in 2008 and
had to quit after just a few weeks due to her hip and back pain, has sought single-level
housing , and has been issued a handicapped parking sticker. The internally inconsistent
report of Dr. Soares and the ALJ’s interpretation of Depuy’s self-reported ability to do
some household chores simply do not constitute good reason to significantly discredit
Depuy’s reports of pain entirely.

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Accordingly,

IT IS ORDERED, that judgment shall be entered by separate document, providing
that the Commissioner’s decision is reversed and the cause remanded for further
proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g).

Dated this 4th day of November, 2014
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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