Gresham v. Colvin
MEMORANDUM AND ORDER that the Commissioner's decision is reversed. This matter is remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for calculation and award of benefits. A separate judgment will be entered. Ordered by Judge John M. Gerrard. (LAC)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
JAMES T. GRESHAM,
MEMORANDUM AND ORDER
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
This matter is before the Court on the denial, initially and upon
reconsideration, of plaintiff James T. Gresham's disability insurance benefits
under Titles II and XVI of the Social Security Act, 42 U.S.C. § 401 et seq. and
§ 1381 et seq. The Court has considered the parties' filings and the
administrative record, and reverses the Commissioner's decision to deny
benefits. The Court will remand this case to the Commissioner for calculation
and award of benefits.
I. PROCEDURAL HISTORY
Gresham filed applications for disability insurance benefits and
supplemental security income in February 2013. Gresham's claims were
denied initially (T107-110) and on reconsideration (T118-121). Following a
hearing, an administrative law judge (ALJ) determined that Gresham was
not disabled under the Social Security Act, and therefore not entitled to
disability benefits. T22. The ALJ determined that, although Gresham
suffered from severe impairments, he had the residual functional capacity to
perform other jobs that exist in significant numbers in the national economy.
T14-T22. The Appeals Council of the Social Security Administration denied
Gresham's request for review of the ALJ's decision. T1-3. Gresham's
complaint seeks review of the ALJ's decision as the final decision of the
Commissioner under sentence four of 42 U.S.C. § 405(g). Filing 1.
II. FACTUAL BACKGROUND
1. MEDICAL HISTORY
Gresham's medical history is generally summarized as follows. In 2005,
after experiencing numbness from the neck down, Gresham underwent a
magnetic resonance imaging (MRI), which detected the possibility of multiple
sclerosis (MS). Gresham underwent a second MRI soon thereafter, and that
report, too, was consistent with MS. T266.
The numbness recurred in 2011. So, on or around February 1, Gresham
visited Dr. Rana Zabad, a neurologist at the University of Nebraska Medical
Center. T18; see T279-282. According to Dr. Zabad, Gresham's recurrence
"started with the left arm, moved to the left leg, then to the contralateral
side." T280. Records from the visit also indicate that Gresham was
experiencing fatigue, was "very moody and sometimes verbally aggressive,"
and had—since 2006—been experiencing "throbbing headache[s] associated
to phonophobia and photophobia." T280. Dr. Zabad concluded with relative
certainty that Gresham had relapsing and remitting MS, but decided against
prescribing medication, noting that Gresham was "recovering nicely" from
the relapse. T281.
In 2013, Gresham went back to Dr. Zabad, reporting that his left side
was totally numb, his bladder control was "not optimal," and that he was
experiencing problems maintaining balance. T266. In her reports, Dr. Zabad
confirmed Gresham's relapsing and remitting MS, writing that he "has a high
burden of disease on his cervical spinal cord and brain stem." T268. But she
expressed concern regarding "disease-modifying therapy," citing Gresham's
prior "nonadherence and risky behavior." T268. "If he desires therapy," she
wrote, "I feel comfortable that he goes on Copaxone, which is known to be
safe and does not require any monitoring." T268.
Gresham had several follow-up visits with Dr. Zabad in 2013 and 2014.
See, T269-272; T295-96; T358-360; T362-64. The records from those visits are
largely consistent, and reflect Gresham's general complaints regarding
numbness, blurred vision, and frequent urination. T18-19; T295; T358. But
they also suggest, to some degree, the relative normality of Gresham's
physical capabilities. In one report, for example, Dr. Zabad writes:
"[Gresham] is exercising more: pull ups, cardiovascular 3x/week for 30-45
minutes." T358. And in others, she comments (or otherwise indicates) that
Gresham is ambulatory, that his motor and coordination is normal, and that
he is mentally sound. T18; T296-97; T359-360.
On September 9, 2013, Dr. Zabad issued a letter to Gresham's attorney
supporting his present application for Social Security benefits. In the letter,
Dr. Zabad wrote that Gresham's symptoms—namely, his inability to walk for
prolonged periods of time, bladder urgency, and significant fatigue—render
him unable to work. T376-77. She elaborated:
Very early on [Gresham] had a relapse that affected the left side
of his body including the arm and leg. Although on his
neurological examination his motor deficit is not significant, it is
well known however that in patients with multiple sclerosis
strength worsens with repetitive activity and exertion. Therefore
I don't believe that he can sustain a job that requires him to
stand and/or walk for six hours out of an eight-hour day because
of his muscular fatigability.
Due to the symptoms described above, James is likely to miss at
least three days of work in a month due to his relapsingremitting multiple sclerosis. Furthermore based on the symptoms
which are constant and chronic and likely to worsen with time, I
do not believe that he's able to work eight hours a day, five days a
week on a regular and continuing basis.
Dr. Zabad wrote another letter on Gresham's behalf on July 31, 2014.
T376. There, Dr. Zabad reiterated her concerns regarding Gresham's ability
to work, citing fatigue and bladder urgency, among other issues. T376. She
also noted the results of a July 29, 2014 MRI, which revealed "progression of
his left sided weakness," but no new inflammation. T376. She continued, "[a]s
his MRI is  not showing inflammation, it means that [Gresham] is reaching
the point where he is progressing because of the nerve cells dying.
Unfortunately this is not something amenable to treatment with medication
or physical therapy and is the signature of a chronic progressive and
irreversible disease such as MS." T376
The record also contains reviews from state agency medical consultants
Jerry Reed, M.D., and Robert Roth, M.D. See, T65-72; T93-102. Based on Dr.
Reed's observations, Gresham's conditions do, in some respects, limit his
ability to work. But overall, he said, "[w]e have determined that your
condition is not severe enough to keep you from working." T72. Dr. Roth
reached the same result upon reconsideration, although cautioning that
Gresham's MS and history of migraines "may progress over time." T96. "At
this point however, medical evidence appears to show some stability in his
disease with only moderate symptoms." T96.
2. HEARING TESTIMONY
At the administrative hearing, Gresham testified to his medical
condition and symptoms, which generally mirrored the symptoms discussed
above. He explained, for example, the numbness on the left side of his body
and his persistent feeling of dizziness and fatigue. T35-36. He also described
certain limitations regarding the use of his left arm and leg, such as an
inability to lift or carry objects or walk long distances. T39-42. And he
described problems pertaining to bladder control and migraines, which he
experiences, on average, four times a week. T49. As a result of these
symptoms, Gresham testified, he has difficulty standing for over an hour; is
required to take at least a 1 hour nap per day; is unable to sit in a standard
"business chair"; is sensitive to heat; and is limited in energy and physical
The ALJ then questioned Gresham about his physical capabilities,
particularly in light of his purported limitations. On this point, the ALJ noted
that, according to the record, Gresham was capable of going to the grocery
store, taking short walks, and performing yard work. T51-52. Gresham
confirmed these reports, noting his ability to perform basic tasks for short
periods of time. T52. The ALJ also asked about Gresham's exercise regimen
which, at one time, included cardiovascular activities four times a week. T53.
Yes, that's when the MS wasn't, it wasn't bothering me as much.
It has, like I said, I have good days and I have bad days. But
since my last attack I've had to slow down. There's certain things,
I've been going through an MS support group and they've been
showing me how to do certain things, but I have not been able to
do a lot of things that I would like to do.
T53. The ALJ then reviewed Gresham's work history dating back to 1998,
noting Gresham's prior work as a machinist, welder, maintenance worker,
and laborer. T 53-57.
Against this backdrop, the ALJ presented the vocational expert (VE)
with a hypothetical based on a "younger individual with a high school
education" whose past work history was the same as Gresham's, and who was
limited to performing "a full range of light work." T58-59. Such a person, the
VE opined, could perform light, unskilled work, such as housekeeper or mail
clerk. T59. Citing Dr. Zabad's findings, the ALJ then added a condition to the
hypothetical, asking the VE to assume, in addition to the conditions described
above, that the individual would likely miss at least 3 days of work in a
month due to the severity of his symptoms. T59. With that addition, the VE
opined that the claimant would be unable to sustain work. T60. The ALJ then
added a different condition, which was also responsive to Dr. Zabad's
findings: that the claimant would require a 1 hour break, "in addition to
whatever normal breaks" are afforded the employee, to rest or take a nap.
T60. Again, the VE opined that, with the addition, the claimant would be
unable to sustain work. T60-61.
3. SEQUENTIAL ANALYSIS AND ALJ FINDINGS
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).
(a) Step One
At the first step, the claimant has the burden to establish that he has
not engaged in substantial gainful activity since his alleged disability onset
date. Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006); 20 C.F.R. §
404.1520(a)(4)(i). If the claimant has engaged in substantial gainful activity,
the claimant will be found not to be disabled; otherwise, the analysis proceeds
to step two. Gonzales, 465 F.3d at 894; 20 C.F.R. § 404.1520(a)(4)(i).
In this case, the ALJ found that Gresham had not engaged in
substantial gainful activity since his alleged disability onset date, and that
finding is not disputed on appeal. T13-14.
(b) Steps Two and Three
At the second step, the claimant has the burden to prove he has a
"medically determinable physical or mental impairment" or combination of
impairments that is "severe[,]" 20 C.F.R. § 404.1520(a)(4)(ii), in that it
"significantly limits his physical or mental ability to perform basic work
activities." Gonzales, 465 F.3d at 894; see also Kirby v. Astrue, 500 F.3d 705,
707-08 (8th Cir. 2007). Next, "at the third step, [if] the claimant shows that
his impairment meets or equals a presumptively disabling impairment listed
in the regulations, the analysis stops and the claimant is automatically found
disabled and is entitled to benefits." Gonzales, 465 F.3d at 894; 20 C.F.R. §
404.1520(a)(4)(iii). Otherwise, the analysis proceeds.
In this case, at step two, the ALJ found that Gresham had the following
severe impairment: relapsing-remitting multiple sclerosis. T14. At step three,
however, the ALJ found that Gresham did not have an impairment or
combination of impairments that met or medically equaled a listed
impairment. T15. Gresham does not dispute this finding on appeal.
(c) Residual Functional Capacity
Before moving to step four, the ALJ must determine the claimant's
residual functional capacity (RFC), which is then used at steps four and five.
20 C.F.R. § 404.1520(a)(4). "'Residual functional capacity' is defined as 'the
most [a claimant] can still do' despite the 'physical and mental limitations
that affect what [the claimant] can do in a work setting' and is assessed
based on all 'medically determinable impairments,' including those not found
to be 'severe.'" Gonzales, 465 F.3d at 894 n.3 (quoting 20 C.F.R. §§ 404.1545
To determine a claimant's RFC, the ALJ must consider the impact of
all the claimant's medically determinable impairments, even those previously
found to not be severe, and their related symptoms, including pain. 20 C.F.R.
§§ 404.1529(d)(4) and 404.1545(a)(1) and (2). This requires a review of "all the
relevant evidence" in the case record. 20 C.F.R. § 404.1545(a). Although the
ALJ is responsible for developing the claimant's complete medical history, 20
C.F.R. § 404.1545(a)(3), the claimant bears the burden of proof to
demonstrate his or her RFC. Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir.
2000). The ALJ will consider "statements about what [the claimant] can still
do that have been provided by medical sources, whether or not they are based
on formal medical examinations," as well as descriptions and observations of
the claimant's limitations caused by his impairments, including limitations
resulting from symptoms, provided by the claimant or other persons. 20
C.F.R. § 404.1545(a)(3).
The RFC assesses the claimant's ability to meet the physical, mental,
sensory, and other requirements of work. 20 C.F.R. § 404.1545(a)(4). The
mental requirements of work include, among other things, the ability: to
understand, remember, and carry out instructions; to respond appropriately
to supervision, coworkers, and work pressures in a work setting; to use
judgment in making work-related decisions; and to deal with changes in a
routine work setting. 20 C.F.R. §§ 404.1545(c) and 404.1569a(c); SSR 96-8p,
61 Fed. Reg. 34474-01, 34477 (July 2, 1996). An RFC must assess the
claimant's ability to meet the mental requirements of work, 20 C.F.R. §
404.1545(a)(4), which includes the ability to respond appropriately to
coworkers and work pressures. 20 C.F.R. §§ 404.1545(c) and 404.1569a(c);
SSR 96-8p, 61 Fed. Reg. at 34477. The RFC must include all limits on workrelated activities resulting from a claimant's mental impairments. SSR 85-16,
1985 WL 56855, at *2 (1985).
A special procedure governs how the ALJ evaluates a claimant's
symptoms. The ALJ first considers whether the claimant suffers from
"medically determinable impairment(s) that could reasonably be expected to
produce [the claimant's] symptoms." 20 C.F.R. § 404.1529(a) to (c)(1). A
medically determinable impairment must be demonstrated by medical signs
or laboratory evidence. 20 C.F.R. § 404.1529(b). If this step is satisfied, the
ALJ then evaluates the intensity and persistence of the claimant's symptoms
to determine how they limit the claimant's ability to work. 20 C.F.R. §
404.1529(c)(1). This again requires the ALJ to review all available evidence,
including statements by the claimant, "objective medical evidence," 1 and
"other evidence."2 20 C.F.R. § 404.1529(c)(1) to (3). The ALJ then considers
the claimant's statements about the intensity, persistence, and limiting
effects of his or her symptoms, and evaluates them in relation to the objective
medical evidence and other evidence. § 404.1529(c)(4). Ultimately, symptoms
will be determined to diminish the claimant's capacity for basic work
activities, and thus impact the claimant's RFC, "to the extent that [the
claimant's] alleged functional limitations and restrictions due to
symptoms . . . can reasonably be accepted as consistent with the objective
medical evidence and other evidence." Id.; § 404.1529(d)(4).
In assessing the credibility of a claimant's subjective testimony
regarding his or his alleged symptoms, the ALJ must weigh a number of
factors. See, Moore v. Astrue, 572 F.3d 520, 524 (8th Cir. 2009); 20 C.F.R. §
404.1529(c)(3)(i–vii).3 When deciding how much weight to afford the opinions
of treating sources and other medical opinions regarding a claimant's
impairments or symptoms, the ALJ considers a number of factors set forth in
20 C.F.R. § 404.1527.
The ALJ determined that Gresham had the RFC to perform "the full
range of light work" as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b).
T16. In reaching this conclusion, the ALJ found that Gresham's "medically
determinable impairments could reasonably be expected to cause some [of]
the alleged symptoms"; but that Gresham's statements "concerning the
intensity, persistence and limiting effects of these symptoms are not fully
credible" to the extent they were inconsistent with the ALJ's RFC
assessment. T16-17. On this point, the ALJ noted inconsistencies between
Gresham's purported inability to work and, for example, his prior
employment history. T17. Further, the ALJ compared Gresham's medical
records to certain statements and writings in Gresham's present application
for disability benefits, noting:
[In Gresham's interrogatories], he reported that he has pain
throughout his entire body. However, at his last visit of record to
20 C.F.R. §§ 404.1529(c)(2) and 404.1528(b) and (c).
"Other evidence" includes information provided by the claimant, treating and non-treating
sources, and other persons. See 20 C.F.R. § 404.1529(a) (and sections referred to therein);
see also 20 C.F.R. § 404.1529(c)(3).
3 In assessing a claimant's credibility, the ALJ should consider: (1) the claimant's daily
activities; (2) the duration, intensity, and frequency of pain; (3) the precipitating and
aggravating factors; (4) the dosage, effectiveness, and side effects of medication; (5) any
functional restrictions; (6) the claimant's work history; and (7) the absence of objective
medical evidence to support the claimant's complaints. Moore, 572 F.3d at 524.
the MS Clinic two weeks earlier, the claimant reported that he
had no pain. The claimant testified that he suffers urinary
incontinence, twice a month. However . . . while he has reported
urinary urgency to his providers, he has denied incontinence. The
claimant also reported a history of vertigo causing him to fall.
However the progress notes from the MS Clinic note that he has
no history of vertigo and while he has reported some imbalance
and incoordination, he has made no mention of falling.
T17 (internal citations omitted).
Further, in determining Gresham's RFC, the ALJ declined to fully
credit the medical opinions of Gresham's treating physician, Dr. Zabad. T20.
In doing so, the ALJ provided examples of purported inconsistencies between
Dr. Zabad's findings, and other record evidence, writing:
Based on the evidence summarized above, I am unable to fully
credit the opinions of Dr. Zabad. To begin with, disability is the
ultimate issue reserved for the Commissioner herein. [Dr.
Zabad's] opinions are inconsistent with the fact that the claimant
returned to work at the medium exertional level after the
January 2011 relapse at the medium and very heavy exertional
levels and sought no treatment between March 2011 and March
2013. While physical examinations showed more significant
motor deficits in July 2014, an MRI taken at that time was
unchanged compared to 2013, found no active enhancing lesions
and did not support the conclusion that the claimant had suffered
a relapse. In fact, it was noted at the last visit of record that the
claimant was "doing better."
T20. But the ALJ did credit state agency medical consultants Jerry Reed and
Robert Roth "to the extent that they are consistent with the residual
functional capacity set out above." T20. In light of these findings, and after
reviewing the relevant evidence, the ALJ concluded that Gresham's medical
conditions did not give rise to disabling limitations. T20.
(d) Steps Four and Five
At step four, the claimant has the burden to prove that he lacks the
RFC to perform his past relevant work. Gonzales, 465 F.3d at 894; 20 C.F.R.
§ 404.1520(a)(4)(iv). If the claimant can still do his past relevant work, he will
be found to be not disabled, otherwise, the analysis proceeds to step five. 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 that the claimant can perform. Gonzales, 465
F.3d at 894; 20 C.F.R. § 404.1520(a)(4)(v).
Here, at step four, the ALJ found that Gresham was unable to perform
any past relevant work. T21. But at step five, based on the testimony of the
VE, the ALJ concluded that there were jobs that existed in significant
numbers in the national economy that Gresham could perform. T1. So, the
ALJ concluded that Gresham was not under a disability, and denied his
claims for benefits. T22.
III. STANDARD OF REVIEW
The Court reviews a denial of benefits by the Commissioner to
determine whether the denial is supported by substantial evidence on the
record as a whole. Teague v. Astrue, 638 F.3d 611, 614 (8th Cir. 2011) (citing
42 U.S.C. § 405(g)). Substantial evidence is less than a preponderance but is
enough that a reasonable mind would find it adequate to support the
conclusion. Id. The Court must consider evidence that both supports and
detracts from the ALJ's decision, but will not reverse an administrative
decision simply because some evidence may support the opposite conclusion.
Perkins v. Astrue, 648 F.3d 892, 897 (8th Cir. 2011). 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. Id. The Court reviews for substance
over form: an arguable deficiency in opinion-writing technique does not
require the Court to set aside an administrative finding when that deficiency
had no bearing on the outcome. Buckner v. Astrue, 646 F.3d 549, 559 (8th Cir.
2011). And the Court defers to the ALJ's determinations regarding the
credibility of testimony, so long as they are supported by good reasons and
substantial evidence. Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011).
Gresham argues that the ALJ did not properly evaluate and weigh the
opinions of Dr. Zabad, Gresham's treating neurologist. See filing 11-1 at 11.
By failing to do so, Gresham argues, the ALJ "impermissibly invaded the
province of the treating neurologist," and otherwise "played doctor" in
determining the outcome of Gresham's application. Filing 11-1 at 18, 27. In
response, the Commissioner argues that the ALJ need not, in every instance,
provide controlling weight to a treating physician. Filing 20 at 8. And because
Dr. Zabad's opinions are "inconsistent with the objective evidence," the ALJ
was not required to do so here. Filing 20 at 9.
As noted above, Dr. Zabad submitted letters in which she described
Gresham's symptoms as "constant, chronic and worsening with time." T377;
T356. As a result of these symptoms, she wrote, Gresham would likely miss
at least 3 days of work a week and would be unable to work at all on a
regular and continuing basis. T356; T377. She also noted Gresham's
"significant fatigue," which can occur "at any stage of [MS]." T376. These
findings were then incorporated into the hypothetical question posed to the
VE at Gresham's hearing. As noted above, the VE concluded that, under the
circumstances described (i.e., missing 3 days of work a month or requiring an
hour-long rest break a day), the claimant would be unable to sustain work.
T59-60. Absent those conditions, however, the VE found that an individual
similarly situated to Gresham could maintain employment as a mail clerk or
In determining a claimant's RFC, an ALJ is to consider all relevant
evidence, including "medical records, observations of treating physicians and
others, and [the claimant's] own description of [his] limitations." Page v.
Astrue, 484 F.3d 1040, 1043 (8th Cir. 2007). A treating physician's opinion is
generally entitled to substantial weight, but it does not automatically control,
as the ALJ must evaluate the record as a whole. Davidson v. Astrue, 501 F.3d
987, 990 (8th Cir. 2007). However, when an ALJ discounts a treating
physician's opinion, he should give "good reasons" for doing so. Id. (citing
Dolph v. Barnhart, 308 F.3d 876, 878 (8th Cir. 2002)). This standard may be
satisfied where a treating physician renders "inconsistent opinions that
undermine the credibility of such opinions," or where other medical
assessments "are supported by better or more thorough medical evidence[.]"
Reed v. Barnhart, 399 F.3d 917, 921 (8th Cir. 2005) (quoting Prosch v. Apfel,
201 F.3d 1010, 1013 (8th Cir. 2000)).
Here, the ALJ discounted Dr. Zabad's opinions, finding them
inconsistent with other substantial evidence. To this end, the ALJ noted that
Gresham, following a 2011 relapse, returned to work at the "medium and
very heavy exertional levels" and sought no treatment between March 2011
and March 2013. T20. He also cited Gresham's 2014 MRI, which "found no
active enhancing lesions and did not support the conclusion that the claimant
had suffered a relapse." T20. And he pointed to a notation in a medical record
which suggests that Gresham, at one time, was "doing better." T20.
After reviewing these findings in light of the entire record, the Court
concludes that the ALJ erred in discrediting Dr. Zabad's medical opinions. In
reaching this decision, the Court acknowledges the Commissioner's argument
that, to some extent, Gresham's physical and mental capabilities remain
intact. As the ALJ noted in his opinion, and as the Commissioner stresses on
appeal, Gresham appears capable, for example, of maintaining his balance
- 10 -
and walking without sufficient difficulty. Filing 20 at 9. The Court also
recognizes the absence of medical records from 2011 to 2013 which, according
to the ALJ, conflicts with Dr. Zabad's assessment regarding the severity of
Gresham's condition. And finally, the Court has reviewed the medical record
cited in the ALJ's opinion in which Dr. Zabad's physician's assistant noted
that Gresham, at least as of mid-2014, was "doing better." T20; T372.
But these facts must be viewed in light of Gresham's underlying
condition. Indeed, unlike impairments that are subject to linear decline or
improvement, relapsing and remitting MS is, by its very nature, "a disease
that waxes and wanes." Klaus v. Colvin, 2016 WL 1435687, *6 (M.D.N.C.
2016) (internal quotation marks and citations omitted); see Wilcox v.
Sullivan, 917 F.2d 272, 276 (6th Cir. 1990) (MS is an "incurable, progressive
disease subject to periods of remission and exacerbation"). Thus, periodic
reports of stability or improvement in Gresham's condition fail to hold the
significance the ALJ placed upon them. Klaus, 2016 WL 1435687, at *6.
Nor does the Court find significant discrepancies between Dr. Zabad's
medical assessments and the results of Gresham's 2014 MRI. On this point,
the ALJ suggests that the MRI undermines Dr. Zabad's medical opinion
regarding the progression of Gresham's relapsing and remitting MS, writing:
While physical examinations showed more significant motor
deficits in July 2014, an MRI taken at that time was unchanged
compared to 2013, found no active enhancing lesions and did not
support the conclusions that the claimant had suffered a relapse.
T20. But according to Dr. Zabad, the "unchanged" nature of Gresham's 2014
MRI is, itself, the cause of concern. Indeed, in her July 31 letter, Dr. Zabad
acknowledges that Gresham's 2014 MRI "[does] not show new inflammation."
T376. But she goes on to say:
It is known that progression in MS is due to 2 different reasons:
inflammation, which is usually treatable, and neurodegeneration
which means death of the nerve cells. As his MRI is  not
showing inflammation, it means that he is reaching the point
where he is progressing because of the nerve cells dying.
Unfortunately this is not something amendable to treatment with
medication or physical therapy and is the signature of a chronic
progressive and irreversible disease such as MS.
T376 (emphasis added). Thus, the MRI does not undermine the treating
physician's opinions, it reinforces them.
- 11 -
The ALJ further supported his decision by referencing a notation in the
last available visit of record. T20. There, Dr. Zabad's physician's assistant
writes that Gresham was, overall, "doing better." See, filing 20 at 11; T20.
But the medical record also lists several purported symptoms associated with
Gresham's visit, including numbness, bladder problems, and difficulty
walking. See T366. And as discussed above, those symptoms are consistent
with Dr. Zabad's findings regarding the nature and severity of Gresham's
MS. Thus, for many of the reasons discussed above, the notation is not
sufficient grounds for discrediting Gresham's treating physician.
As a final, and more general matter, the Commissioner cites instances
in the record which, she claims, "undermine Dr. Zabad's opinion regarding
Plaintiff's fatigue[.]" Filing 20 at 11. For example, she notes that despite
Gresham's complaints, he was nonetheless able "to take walks, perform
cardiovascular exercise . . . sweep, rake leaves, mow the lawn, and wash
windows." Filing 20 at 11. "Moreover," she writes, "Plaintiff took college
classes and attended religious services twice a week." Filing 20 at 11. But
Gresham need not prove that he is bedridden or "completely helpless" to be
found disabled under the applicable regulations. Reed, 399 F.3d at 923.
Rather, the inquiry is whether the claimant can perform full-time competitive
work. And, as the Eighth Circuit has recognized, "the ability to do activities
such as light housework and visiting with friends" is of little consequence to
the underlying analysis. Id. (quoting Burress v. Apfel, 141 F.3d 875, 881 (8th
In sum, the Court is well aware that an ALJ may discount or even
disregard the opinion of a treating source where other medical assessments
are supported by better or more thorough medical evidence, or where a
treating source renders inconsistent opinions that undermine the credibility
of such opinions. Id. at 921. But Dr. Zabad's opinion was the only opinion in
the record from a physician who had even examined Gresham regarding his
relapsing-remitting MS. The ALJ discounted Dr. Zabad's assessment in favor
of the opinion of non-treating, non-examining physicians who relied
exclusively on medical records to arrive at an opinion. See Shontos v.
Barnhart, 328 F.3d 418, 425 (8th Cir. 2003). The opinions of non-treating
practitioners who have attempted to evaluate the claimant without
examination do not normally constitute substantial evidence on the record as
a whole upon which to base a denial of benefits. Id. at 427. On the record
before the Court, the ALJ should have given controlling weight to Dr. Zabad's
opinion with respect to Gresham's conditions.
Having reached that conclusion, it is unnecessary for the Court to
consider Gresham's other arguments. The evidence is uncontested that given
an RFC based on Dr. Zabad's opinion of Gresham's limitations, there is not a
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significant number of jobs in the national economy that Gresham can
perform. See, Gonzales, 465 F.3d at 894; 20 C.F.R. § 404.1520(a)(4)(v). So,
under step five of the sequential analysis, Gresham is entitled to benefits.
The Court will therefore reverse the Commissioner's decision and remand for
an award of benefits. See Shontos, 328 F.3d at 427.
The Court has reviewed the administrative record and finds that the
ALJ erred in not affording controlling weight to Dr. Zabad's opinion. The
Court will reverse the Commissioner's decision and remand the case for an
award of benefits.
IT IS ORDERED:
The Commissioner’s decision is reversed.
This matter is remanded to the Commissioner pursuant to
sentence four of 42 U.S.C. § 405(g) for calculation and
award of benefits.
A separate judgment will be entered.
Dated this 27th day of March, 2017.
BY THE COURT:
John M. Gerrard
United States District Judge
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