Asay v. Social Security Administration

Filing 18

OPINION AND ORDER by Magistrate Judge T Lane Wilson reversing and remanding the Commissioner's denial of Disability Insurance Benefits (crp, Dpty Clk)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OKLAHOMA
WILLIAM ASAY,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of the Social Security
Administration,
Defendant.

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Case No. 10-cv-643-TLW

OPINION AND ORDER
Plaintiff William Asay, pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c), requests
judicial review of the decision of the Commissioner of the Social Security Administration
denying his applications for disability benefits under Titles II and XVI of the Social Security Act
(“Act”). In accordance with 28 U.S.C. § 636(c)(1) and (3), the parties have consented to proceed
before the undersigned United States Magistrate Judge. (Dkt. # 11). Any appeal of this order
will be directly to the Tenth Circuit Court of Appeals.
Review
When applying for disability benefits, a plaintiff bears the initial burden of proving that
he or she is disabled. 42 U.S.C. § 423(d)(5); 20 C.F.R. § 416.912(a). “Disabled” under the
Social Security Act is defined as the “inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment.”

42 U.S.C. §

423(d)(1)(A). A plaintiff is disabled under the Act only if his or her “physical or mental
impairment or impairments are of such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work experience, engage in any other kind
of substantial gainful work in the national economy.” 42 U.S.C. § 423(d)(2)(A). Social Security
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regulations implement a five-step sequential process to evaluate a disability claim. 20 C.F.R. §§
404.1520, 416.920; Williams v. Bowen, 844 F.2d 748, 750 (10th Cir. 1988) (setting forth the
five steps in detail). “If a determination can be made at any of the steps that a plaintiff is or is
not disabled, evaluation under a subsequent step is not necessary.” Williams, 844 F.2d at 750.
The role of the court in reviewing a decision of the Commissioner is limited to
determining whether the decision is supported by substantial evidence and whether the decision
contains a sufficient basis to determine that the Commissioner has applied the correct legal
standards. Grogan v. Barnhart, 399 F.3d 1257, 1261 (10th Cir. 2005). Substantial evidence is
more than a scintilla, less than preponderance, and is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion. Id. The Court’s review is based on the
record, and the Court will “meticulously examine the record as a whole, including anything that
may undercut or detract from the ALJ’s findings in order to determine if the substantiality test
has been met.” Id. The Court may neither re-weigh the evidence nor substitute its judgment for
that of the Commissioner. See Hackett v. Barnhart, 395 F.3d 1168, 1172 (10th Cir. 2005). Even
if the Court might have reached a different conclusion, if supported by substantial evidence, the
Commissioner’s decision stands. White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2002).
A disability is a physical or mental impairment “that results from anatomical,
physiological, or psychological abnormalities which are demonstrable by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423 (d)(3). “A physical impairment
must be established by medical evidence consisting of signs, symptoms, and laboratory findings,
not only by [an individual’s] statement of symptoms.” 20 C.F.R. §§ 404.1508, 416.908. The
evidence must come from “acceptable medical sources” such as licensed and certified
psychologists and licensed physicians. 20 C.F.R. §§ 404.1513(a), 416.913(a).

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Background
Plaintiff was born August 7, 1958 and was 51 years old at the time of the ALJ’s decision.
(R. 92, 100). He is married with four children. (R. 39, 93). He completed three years of college.
(R. 38). He last worked November 7, 2007 as a truck driver. Prior to that, he worked as a nurse
for 10 years. (R. 39).
Hearing Summary
A hearing was held June 15, 2009, in front of Administrative Law Judge (“ALJ”) Lantz
McClain. During his opening argument, plaintiff’s attorney noted that plaintiff’s physicians
were unable to agree upon a cause for plaintiff’s symptoms of pain. He stated that Exhibits 6F
and 8F touched on the possibility of a somatoform1 disorder, and he suggested that further
development of the record was in order. (R. 36-37).
Upon questioning by his attorney, plaintiff explains that he has neck pain which makes it
difficult for him to turn his neck to the left, even choking him at times. His left shoulder also
causes him “an immense amount of pain.” (R. 40). Plaintiff claims the grip in his hands is
unsteady. His balance is off, and he claims he is unable to move his left leg to use the clutch on
a vehicle. Id. Plaintiff states his lack of balance makes him unsteady and causes him to fall
frequently, forcing him to use a cane. Id. He states his grip problem is in both hands, but more
in the left. (R. 41). In explaining his shoulder pain, plaintiff said “[m]oving it, lifting it up[,]
[t]rying to reach out for things” all make the pain worse. (R. 43). He has trouble sitting in one
position for too long, especially if the chair is hard. He has an extra cushion in his recliner at
home. Id.

1

A somatoform disorder is a group of psychiatric disorders which can cause unexplained
physical symptoms. See http://www.aafp.org/afp/2007/1101/p1333.html.
3

Plaintiff estimates he can stand or walk without a break for approximately 20 minutes.
His legs, back, arms, and hands get tired if he stands or walks too long, in which case he needs to
rest for approximately 30 minutes or more. (R. 44, 45). He explained that he uses a cane
“outside, once in a while, in the house, if I’m having a real bad day,” but always carries it with
him. Id. Inside his house, he has things he can lean on or hold onto for support. (R. 45).
Plaintiff says he can only lift five (5) pounds before his left arm begins hurting
“severely,” five to ten pounds with his right. (R. 46-47). He claims the limiting factor with his
left arm is pain in his shoulder; his right is pain in his hands. (R. 47). He is unable to type with
more than two fingers. Id. He said his wife buttoned his shirt for him. (R. 48). He has a large
buttoned phone at home, and he cannot use a cell phone. (R. 49). He becomes exhausted folding
laundry. Id. He spends 80 percent of his waking hours resting or lying down. (R. 50).
Plaintiff says he is no longer able to help with household chores such as vacuuming and
dusting. (R. 52). His drivers’ license was suspended, and his wife drives him now. He claims to
be unable to retain the details of a half hour television program. (R. 52-53). He enjoys fishing
and camping, but cannot participate in these activities, because he is unable to tolerate the
changes in temperature. (R. 54). He shops infrequently and for short periods. (R. 55).
Next in the hearing, the ALJ turned to the Vocational Expert (“VE”), prompting him to
let them all know if his testimony differed from the Dictionary of Occupational Titles (“DOT”)
as he went. First, the VE summarized plaintiff’s prior work history, then the ALJ gave him the
following hypothetical:
[L]et’s say we have an individual who’s the same age, same educational
background and the same work history as this claimant. Let’s say that individual
was limited to light work as described by the Commissioner, that is, could
occasionally lift and carry 20 pounds. Frequently carry 10 pounds. Stand and/or
walk with six out of an 8-hour workday and sit at least six hours of 8-hour
workday. Let’s say the individual should also avoid work above shoulder level
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and that the individual should not constantly use the hands for such repetitive
tasks as keyboarding, could use them frequently, but not constantly. And, further,
the individual is limited to simple, repetitive tasks and simple contact with the
public. By simple contact with the public, I mean, for example, the kind of
contact that a janitor who would clean an office building in the evenings might
have, or bump into the tenants but don’t have to deal with them on a regular basis.
(R. 57). The VE testified that such an individual could not return to any of plaintiff’s previous
work. (R. 58). When asked by the ALJ to identify all jobs that fit within the hypothetical, the
VE listed: mail clerk, laundry press person, and “various types of sorting jobs.” (R. 58). The
ALJ then verified that an individual who actually suffers from all of the complaints testified to
by plaintiff would be unable to complete an eight-hour workday, five days a week, regularly and
would be ineligible for all competitive work. Id. Plaintiff’s attorney asked the VE how the use
of a cane would affect the jobs listed, and the VE stated it would interfere with the jobs of mail
clerk and laundry presser, but should not be an issue with about half (approximately 225) of the
sorting jobs, because they were actually sedentary (sitting) work. (R. 58-59).
Plaintiff’s attorney then gave the VE a hypothetical of an individual who, two-thirds of
the time, could not “understand and remember very short and simple instructions. Socially
interact with the general public, co-worker and supervisors.

Adapt to competitive work

environment and carry out very short and simple instructions.” The VE replied that such an
individual would not be able to work at all. (R. 61). The attorney explained to the ALJ that he
took the limitations from the last paragraph of Exhibit 6F, the consultative examiner’s report. Id.
In closing, plaintiff’s attorney again requested “that a more comprehensive evaluation be done on
[plaintiff’s] mental condition.” The ALJ took the request under advisement. Id.
Non-Medical Records
During a face to face contact with the Social Security Department, the reviewer noted
that plaintiff had difficulty hearing, answering, and walking. However, the reviewer observed
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plaintiff to be a fair historian, stopping when asked questions for a few moments before
answering. Plaintiff walked slowly with an uneven gait and jumped approximately eight (8)
times during the interview, apparently during a stabbing pain. (R. 127-128).
According to a Disability Report – Adult (R. 135-144), plaintiff’s limiting conditions are
neuropathy, arthritis, three discs in his neck pressing on nerves, and depression. (R. 131). He
stated “I have to wear braces on both my hands, it takes me a lot longer to do anything. I am in
constant pain. I have trouble sleeping, writing, using my hands. I have frequent stabbing pain. I
have chronic pain in my shoulders, arms and hands. Exertion of any kind causes dizziness, pain”
in answer to “How do your illnesses, injuries or conditions limit your ability to work?” Id. He
claimed he became unable to work on November 7, 2007.
Plaintiff completed a Function Report – Adult (R. 156-163), dated July 29, 2008,
claiming he “fixes food” for his children with assistance from his wife. (R. 139). His hobbies
include fishing, camping, TV, video games, cars, and bikes. (R. 142). He claims to no longer do
these things. Id. Plaintiff stated he handles changes in routine “ok,” and gets along fine with
authority figures. (R. 144).
Medical Records
Treating Physicians
Plaintiff visited Good Samaritan Health Services six times between March 31, 2008 and
July 1, 2008, complaining of bilateral hand pain with stiffness, paresthesias (tingling and
numbness; loss of sensation), and neck pain. (R. 188-217). He received an x-ray of each of his
hands, and a MRI of his cervical and upper thoracic spine. (R. 199-201, 208, 210). He was
treated with Lyrica (relieves neuropathic pain), naproxen (to treat inflammation and pain of

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arthritis), gabapentin (treats seizures and nerve pain), skelaxin (muscle relaxer), and Ultram
(narcotic-like pain reliever). (R. 191).
His x-rays showed an old fracture of the fifth metacarpal (finger) of his right hand with
no other significant abnormality, both views of his left hand were normal, and the MRI revealed
abnormalities at C4-C7.
Paul Peterson, M.D., of Broken Arrow Bone and Joint Specialists, examined plaintiff
June 26, 2008. Dr. Peterson summarized plaintiff’s complaints and history, then summarized his
physical examination results. (R. 324). Dr. Peterson stated plaintiff was alert and oriented with
a “flattened” affect. His cervical range of motion was limited to 20° flexion, 25° extension, 25°
right lateral rotation, and 30° left lateral rotation. Plaintiff’s reflexes were symmetrical at the
elbows and wrists, and his grip strength was normal. Dr. Peterson noted pain with performance
of a nerve compression test over the carpal tunnels, with “no wasting of the thenar musculature.”
Id.

Dr. Peterson stated x-rays of plaintiff’s “cervical spine reveal[ed] significant changes

involving primarily C5-6. The MRI scan report, brought with the patient from the Northland
Imaging Center, show[ed] significant degenerative changes through the lower cervical spine,
most pronounced at C5-6 with narrowing of the neural foramina.” Id. Dr. Peterson’s impression
was “[c]ervical arthritis with some evidence of raiculopathy, possibly a double crush syndrome.2
Dr. Peterson’s recommendations were for plaintiff to continue use of splints, stretches
and anti-inflammatory medication until he could process the appropriate forms to apply for
Medicaid. Dr. Peterson noted that since plaintiff was uninsured, once he obtained Medicaid, Dr.

2

Double crush syndrome is defined as “[a] type of peripheral nerve compression syndrome in
which there is a ‘central’ compression that impacts on a nerve bundle—e.g., at the thoracic or
pelvic outlet—and a 2nd, more peripheral compression—e.g., at the carpal or tarsal tunnel;
optimal therapy requires surgical release of both.” McGraw-Hill Concise Dictionary of Modern
Medicine. © 2002 by The McGraw-Hill Companies, Inc.
See http://medicaldictionary.thefreedictionary.com/Double+Crush+Syndrome.
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Peterson would “do [his] best to marshal him through a reasonable workup, including EMGs and
possibly obtain a neurosurgical consultation.” (R. 324).
An intake form from Broken Arrow Family Clinic dated March 11, 2009 shows
plaintiff’s complaints to be pain in his left ankle, in his shoulder, hand and back; three
compressed discs in his neck; his memory is “going”; and poor balance. (R. 323). Prior
surgeries were thorasic outlet syndrome in 1982 and knee surgery in 1977. Id. The physician
notes indicate that plaintiff saw a doctor at OSU, that he visited Dr. Min, a neurosurgeon, March
6th, and that he received an injection in his neck at Tulsa Spine by Dr. Kalvin White. Another
note states that plaintiff saw Dr. Dewitt, who was to send his records to OSU. The notes show
that plaintiff complained of problems with his knee swelling and joint pain and that he had an
appointment with Dr. McKay’s office June 15, 2009. Id. A note on plaintiff’s history forms
states he sees Dr. White for pain management. (R. 322).
Plaintiff presented July 22, 2008 at OSU Family Medicine with complaints of severe
neck pain and bilateral upper extremity paresthesias. (R. 218). Plaintiff was seen by Thomas
Pickard, D.O. Dr. Pickard noted a decreased range of motion in plaintiff’s neck, as well as
decreased strength bilaterally in the upper extremities.

Dr. Pickard’s impressions were

degenerative joint disease of the cervical spine, radiculopathy, and chronic neck pain. The plan
was for plaintiff to be referred to a neurosurgeon and to continue Lyrica. (R. 219).
Plaintiff presented to Kalvin White, D.O., of Tulsa Spine & Specialty Hospital, on
September 22, 2008 complaining of pain, cramping, loss of balance, and stiffness. (R. 288). He
described the pain as sharp, burning, throbbing, shooting, aching, cramping, crushing, stabbing,
and tingling, all with coldness, hotness and electricity. Id. He stated sitting, standing, walking,
twisting, sneezing, coughing, sex, and using his arms all increased the pain, and lying down

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seemed to help it. (R. 289). He mentioned high blood pressure, liver problems, and headaches
as medical problems, and indicated that he had been diagnosed with depression, but was not
under care for it. (R. 289, 290).
Upon physical examination, Dr. White noted:
“[plainitff] has tenderness in his cervical paraspinals, and upper trapezius. He has
a positive Tinel on the left. Muscle strength is otherwise symmetrical. Reflexes
are also symmetrical. Discosteophyte complexes with moderate effacement at the
thecal sac at C4-5 and C5-6 with bulging disc at C6-7.”
(R. 305). Dr. White diagnosed plaintiff with cervical spondylosis, cervical radiulopathy, carpal
tunnel syndrome, and neck pain. (R. 280, 303-06). He performed a cervical epidural steroid
injection under fluoroscopy at C7-T1, without sedation, to try to alleviate plaintiff’s symptoms.
Id.
In a letter to Dr. Pickard, Dr. White stated plaintiff reported no significant improvement
with the initial injection, so on October 6, 2008, plaintiff received another injection at the C4
location. (R. 257-258, 269-270, 300-302). In a second letter to Dr. Pickard dated November 17,
2008, Dr. White informed him the October 6, 2008 procedure resulted in minimal improvement
in plaintiff’s neck and shoulder pain. At this November 17th visit, Dr. White again repeated the
procedure at the C4-5 location and refilled his pain medication. (R. 297-301).
On November 3, 2008, Cornelia O. Mertiz, D.O., of OSU Physicians, completed a
handicap parking application, requesting a temporary placard for plaintiff, stating plaintiff could
not walk 200 feet without stopping to rest, and he could not walk without the use of an assistive
device, such as a brace or cane. (R. 253). Notes from OSU Physicians dated November 3, 2008
show plaintiff had decreased strength bilaterally in his upper extremities, and decreased range of
motion in his neck. (R. 310). Dr. Mertz’s impressions were disc osteophyte complex with

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significant narrowing of C5-C6 foramina, and anterior cord impingement at C4-C5. Dr. Mertz’s
plan was an urgent referral to a neurosurgeon. (R. 311).
On January 8, 2009, plaintiff was diagnosed with strep pharyngitis and radiculopathy.
Jeffrey Chasteen, D.O. gave him a prescription and referral to neurology. (R. 309). On March 2,
2009, John DeWitt, D.O., F.A.A.N., wrote to Dr. Chasteen after examining plaintiff. (R. 312313). Dr. DeWitt performed an electromyographic study of both of plaintiff’s arms. The results
were normal, and Dr. DeWitt could find no “organic” explanation for plaintiff’s difficulties. He
stated plaintiff had a very mild case of carpal tunnel syndrome which did not need surgical
intervention, and some minor cervical spondylosis, which was not causing any cord compression
or neurologic dysfunction. (R. 313). In his report, which accompanied his letter, Dr. DeWitt
detailed his testing and results. (R. 314-316).
Plaintiff presented to David Min, M.D. on January 6, 2009, for a pain evaluation with
complaints of pain in his neck which radiated into his shoulders and down both arms, on the left
side more than the right. Plaintiff complained his pain was “working down his back.” He also
complained of balance problems, pain in his right knee, and weak hands which gave him a
tendency to drop things. (R. 343). His medication list included oxycodone-acetaminophen
(7.5/325) (pain relief), Tramadol HCL (narcotic-like pain reliever), Baclofen (muscle relaxer),
and Gabapentin (nerve pain treatment).
Upon physical examination and testing, Dr. Min discovered plaintiff could heel-toe walk
well; his finger to nose test was normal; reflexes were symmetric, Achilles reflexes were absent
bilaterally.

Dr. Min stated plaintiff was “well developed, nourished, overweight” and

“appear[ed] his stated age.” (R. 344). His toes were “downgoing” bilaterally. No clonus or
Hollmann’s sign were present bilaterally. Dr. Min noted plaintiff’s mood was normal with no

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evidence of depression or anxiety. Id. Plaintiff’s gait was noted as moderately antalgic; no gross
abnormalities or tenderness were noted in his arms bilaterally. Dr. Min found full range of
motion in his shoulders, elbows, and wrists without pain with no instability in the shoulders,
elbows, or wrists. (R. 344-345). Dr. Min was unable to measure plaintiff’s strength, as plaintiff
would “giveaway with any effort,” however, his tone was noted to be normal with no evidence of
atrophy. (R. 345). Dr. Min noted the same results with plaintiff’s legs bilaterally. Id.
Dr. Min discussed plaintiff’s MRI results, which showed only mild herniation at C5-6,
and a “slight abutment of the herniation to the exiting C6 nerve root” with no evidence of cord
compression. Id. Dr. Min’s assessment was as follows:
Diffuse symptoms - his symptoms are not localizable to a specific source from a
clinical standpoint. I have told him that his disc “herniation” is mild at best and
certainly nothing that I would recommend surgery for. I have told him that he
needs to see a Neurologist to have his progressive symptoms evaluated with an
EMG/NCS because his MRI scan of his cervical spine does not show the etiology
of his symptoms.
As he has no significant lesions on his cervical MRI scan, I have nothing to offer
him.
Id.
Plaintiff returned to the Broken Arrow Family Clinic for a follow up visit April 1, 2009,
stating he was still in pain. (R. 340). No notes regarding care or assessment are listed on this
visit.
On May 11, 2009, notes show plaintiff wanted “to know what Dr. Johnson said,” telling
Brian Coder, D.O. that Dr. Jay Johnson would not accept him as a patient as Dr. Johnson did not
accept adult Medicaid. (R. 339). He was diagnosed with chronic neck pain, memory loss, and
severe hypertension. His medications were adjusted.

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On May 19, 2009, plaintiff presented to the Broken Arrow Family Clinic for a blood
pressure checkup. He stated his neck hurt, worse on his left shoulder. Plaintiff rated his pain as
a nine (9) on a scale of one (1) to ten (10). He was again diagnosed with hypertension, chronic
neck pain, and memory loss. (R. 338).
Plaintiff visited Jay Johnson, D.O., of Tulsa Neurology Clinic, on April 27, 2009. In a
letter to Dr. Coder, Dr. Johnson recited plaintiff’s complaints, noting plaintiff claimed his pain
had steadily increased over the previous two (2) years. (R. 332). Upon examination, Dr.
Johnson noted plaintiff was alert and cooperative, his speech fluent. Dr. Johnson stated plaintiff
“ha[d] marked exaggeration of his symptoms and marked pain behaviors.” (R. 333). Plaintiff’s
motor examination revealed:
...that his motor exam was quite unusual. He would take a number of seconds
before he would move. He had breakaway weakness in all muscles tested. His
motor patterns were very inconsistent. He could straighten his hand at one point
and then had difficulty straightening his hand at another or at least extending the
digits. It was very difficult to follow but I do not see any gross atrophy. There
are no fasciculations. There is marked symptom magnification.
Id. Further examination showed:
The sensory exam revealed intact sensation to pin in the face. In the upper and
lower extremities, it did not follow any particular dermatome or peripheral nerve
pattern. He seemed to feel at least pin better in the lower extremities than the
upper extremities. His position sense was unremarkable.
His gait was such that he used a cane. He walked very slowly. He turned very
slow. For the way he looked and his gait, there was a clear disassociation.
…
He had decreased range of motion in both arms.
(R. 334). Dr. Johnson’s impression was that plaintiff had “memory loss, pain in the neck and
thoracic region the etiology of which is uncertain. He [wa]s having gait imbalance as well.
There is marked overlay.” Dr. Johnson planned to send plaintiff for a MRI scan of the brain and
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cervical spine, request his EMG results from Dr. Dewitt, and study him further after receiving
the results. Id.
Plaintiff cancelled his follow up appointment with Dr. Johnson. In a letter dated May 5,
2009 to Dr. Coder, Dr. Johnson discussed plaintiff’s MRI results, stating it revealed “some
degenerative changes and disc bulging without neural compression” primarily at C4-5 and C5-6.
The MRI of plaintiff’s brain was normal. He discussed the EMG study from Dr. Dewitt.
Ultimately, Dr. Johnson concluded that plaintiff did not have a neurologic etiology for plaintiff’s
symptoms. (R. 331).
Agency Physicians
Plaintiff was examined by Allen W. Sweet, Ph.D. on October 8, 2008 in conjunction with
his application for disability benefits. Dr. Sweet recounted initial impressions of plaintiff’s
movements and actions, stating his wife filled out the paperwork for him to sign, that he walked
slowly “with almost a limp” after rising with difficulty. Dr. Sweet noted during the evaluation
that plaintiff sat “very stiffly,” as though his neck was very stiff. (R. 222). None of plaintiff’s
medical records were provided to Dr. Sweet. Plaintiff described his daily activities as washing
the morning dishes, which he stated “takes [him] a while,” he made the bed and vacuumed, but
said “that takes forever.” Plaintiff claimed he had no hobbies and did not participate in social
activities. (R. 222-223).
Dr. Sweet’s impression of plaintiff was:
Kevin impressed the examiner as an individual who is very vague about many
aspects of his history. He claimed he couldn’t remember why he had an Article
15 conviction while in the Army. He couldn’t explain why he quit nursing. He is
fairly nonspecific about his current issues except that his ‘hands hurt a lot’ and
that he has three bad discs in his neck. He appears to be taking Neurontin,
Depakote and Seroquel. When asked who is prescribing that for him his only
response was ‘my son’s psychiatrist.’ As no records were supplied, there is no
historical context in which to view his current complaints and daily functioning.
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It appears to the examiner that a pain diagnosis and a mixed reactive
anxiety/depression appear to be reasonable descriptions of his current level of
adjustment. It is the examiner’s opinion that William Kevin Asay’s ability to do
work related mental activities such as understanding and remembering appear to
be moderately to significantly impaired. His ability to sustain concentration and
to persist at work required activities appears to be significantly impaired. In his
ability to socially interact with others and to adapt to a competitive work
environment appear moderately to perhaps significantly impaired.
Axis I: Pain Disorder Associated With Both Psychological Factors and a General
Medical Condition 307.89;
Adjustment Disorder With Mixed Anxiety and Depressed Mood 309.28
Axis II: No DiagnOSis 71.09
Axis III: Disk disorder, intervertebral, cervical, by self-report 722.91
Axis IV: Problems with primary support group; Occupational problems; Housing
problems; Economic
problems; Problems with access to health care services
Axis V: GAF54
It is the examiner’s opinion that William Kevin Asay is able to manage in his own
interest and to his own benefit any monetary benefit payments granted to him.
(R. 224).
Carolyn Goodrich, Ph.D., an agency reviewer, completed a Psychiatric Review
Technique form for plaintiff dated October 9, 2008. (R. 227-240). Dr. Goodrich assessed the
areas of Affective Disorders (12.04), Anxiety-Related Disorders (12.06), and Somatoform
Disorders (12.07). As to Affective and Anxiety-Related Disorders, Dr. Goodrich noted plaintiff
suffered adjustment disorder. As to Somatoform Disorders, Dr. Goodrich listed pain disorder as
the impairment. (R. 230, 232-233). Under functional limitations, Dr. Goodrich rated plaintiff to
have mild restriction of activities of daily living, moderate difficulties maintaining social
functioning, and moderate difficulties maintaining concentration, persistence, or pace, and found
no episodes of decompensation. (R. 237). The “C” criteria of the listings were not rated. (R.
238).

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In the section “Consultant’s Notes,” Dr. Goodrich noted plaintiff’s Disability Report Adult showed no treating source for any mental condition, and no prescription for antidepressant
medication. Further, she noted plaintiff’s medical evidence of record showed no complaint or
diagnosis of depression, surmising plaintiff prescription for Cymbalta in July, 2008 may have
been used for pain control.

She noted one mention of “alcoholic.”

She mentioned two

independent examinations where plaintiff’s psychiatric functions were summarized as basically
normal, then went on to discuss part of Dr. Sweet’s consultative examination, reciting diagnoses
of pain disorder and adjustment disorder. She also recited plaintiff’s activities of daily living
from the Function Report - Adult form plaintiff completed. (R. 239).
Dr. Goodrich then completed a Mental RFC form for plaintiff, finding he had moderate
limitations in the ability to understand and remember detailed instructions, and the ability to
carry out detailed instructions. Plaintiff was also rated moderately limited in his ability to
interact appropriately with the general public. All other areas were rated as “not significantly
limited.”

Under the Functional Capacity Assessment, Dr. Goodrich noted plaintiff could

perform simply and some complex tasks, relate to others on a superficial work basis, and adapt to
a work situation. (R. 241-244).
Thurma Fiegel, M.D., gave plaintiff the following physical RFC on October 10, 2008:
Occasionally lift and/or carry 20 pounds,
Frequently lift and/or carry 10 pounds,
Stand and/or walk (with normal breaks) for a total of about 6 hours in an 8-hour
workday,
Sit (with normal breaks) for a total of about 6 hours in an 8-hour workday, and
Push and/or pull (including operation of hand and/or foot controls - unlimited,
other than as shown for lift and/or carry.
(R. 246). No postural, manipulative, visual, communicative, or environmental limitations were
found. (R. 247-249).

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Phillip Massad, Ph.D., an agency physician, confirmed Dr. Goodrich’s determination of
October 9, 2008 as written on January 15, 2009. (R. 292). Janet G. Rodgers, M.D., another
agency physician, confirmed Dr. Fiegel’s findings of October 10, 2008 as written on January 15,
2009. (R. 293-294).
Decision of the Administrative Law Judge
At step one of the five step sequential evaluation process, the ALJ found plaintiff had not
engaged in substantial gainful activity since November 7, 2007, his alleged onset date. (R. 14).
At step two, the ALJ determined plaintiff’s severe impairments to be degenerative disc disease of
the cervical spine, mild carpal tunnel syndrome, somewhat obese, pain disorder, and adjustment
disorder with depression and anxiety. Id. At step three, the ALJ determined plaintiff’s severe
impairments do not meet or equal a listing, specifically considering 1.00, et seq.,
(Musculoskeletal) and 12.00, et seq. (Mental Disorders). (R. 14). Before moving on to step
four, the ALJ assigned the following RFC to plaintiff:
… [plaintiff] has the residual functional capacity to perform light work as defined
in 20 CFR 404.1567(b) and 416.967(b) except he should avoid work above
shoulder level. Due to degenerative disc disease of the cervical spine, he should
be required to lift or carry no more than 20 pound occasionally and he should
avoid work above shoulder level, which puts a strain on his neck. Furthermore,
the claimant should not engage in the constant use of the hands for such repetitive
task as keyboarding and he should be limited to simple, repetitive tasks and
incidental contact with the public.
(R. 16). At step four, the ALJ determined plaintiff had no past relevant work. (R. 22). At step
five, the ALJ determined there were other jobs in significant number in the national economy
which plaintiff could perform, to include a mail clerk, a laundry presser, and a sorter. (R. 23).
The ALJ therefore concluded plaintiff had not been under a disability as defined by the Act,
since November 7, 2007, the alleged date of his onset of disability.

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Issues on Appeal
Plaintiff states the ALJ’s decision should be remanded with instruction or for award of
benefits due to the following alleged errors:
1. The ALJ failed to fully develop the record;
2. The ALJ failed to properly consider Dr. Sweet’s opinion;
3. The ALJ failed to properly consider the plaintiff’s credibility; and
4. The ALJ failed to consider the plaintiff’s proper age.
Discussion
Plaintiff first alleges that the ALJ failed to fully develop the record by not developing the
theory that plaintiff could be suffering from a somatoform disorder. The Court agrees.
Plaintiff argues ample evidence exists to suggest that “part, if not most, of the plaintiff’s
pain is psychologically based.

Recognizing this, the plaintiff’s representative requested

additional mental testing. Tr. 61. The request was not granted.” (Dkt. # 15 at 7). Plaintiff states
the ALJ’s duty to develop the record is triggered when there is “some objective evidence in the
record suggesting the existence of a condition which could have a material impact on the
disability decision requiring further investigation.” Hawkins v. Chater,113 F.3d 1162, 1167
(10th Cir. 1997).
Defendant responded that plaintiff bears the burden of proving his case. While this is
true, and the ALJ ordinarily should be entitled to rely upon a claimant’s counsel at a hearing to
present that claimant’s claims adequately, the ALJ remains obligated to develop an issue which
is brought to his attention and could have a material impact on the disability decision. Id. In the
instant case, plaintiff’s representative specifically pointed to exhibits 6F and 8F in the record and
requested the ALJ further develop the record with respect to a somatoform disorder. (R. 37, 61).

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The ALJ took this request under advisement, but did not discuss the request further in his
decision. (R. 61).
Nonetheless, the ALJ discussed several pieces of evidence that would lend to the question
of a somatoform disorder, including records from OSU College of Osteopathic Clinic, Good
Samaritan Health Services, Paul Peterson, M.D., Kalvin White, D.O., Thomas Pickard, D.O.,
David Min, M.D., John DeWitt, D.O., Jay Johnson, D.O., and Allen Sweet, Ph.D. (R. 17-22).
Several of these examining and/or treating physicians could not pinpoint a physical cause for
plaintiff’s symptoms. Upon remand, the ALJ is instructed to further develop the theory of a
somatoform disorder.
Plaintiff’s second allegation of error is that the ALJ failed to properly consider Dr.
Sweet’s opinion. This argument has merit. Defendant attempts to use a post hoc argument to
salvage the ALJ’s treatment of Dr. Sweet’s report. The ALJ did not reference the same parts of
the record utilized by defendant to support his argument. The ALJ simply stated:
“[t]he undersigned assigns some weight to Dr. Sweet’s mental health assessment.
Although Dr. Sweet opined that claimant’s ability to do work related mental
activities were moderately to significantly impaired, his only behavioral health
diagnosis was an adjustment disorder with mixed anxiety and depressed mood.”
(R. 22). In any event, the ALJ will need to re-evaluate the Consultative Examiner’s opinion
during the course of his investigation into a somatoform disorder.
Plaintiff next argues that the ALJ’s credibility analysis was faulty. The Court agrees.
Speaking to plaintiff’s credibility, the ALJ simply stated, “the claimant presented with extreme
allegations of pain, but the doctors simply cannot explain the cause based on the objective
evidence of record.” Id. “Credibility determinations are peculiarly the province of the finder of
fact, and we will not upset such determinations when supported by substantial evidence.
However, [f]indings as to credibility should be closely and affirmatively linked to substantial
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evidence and not just a conclusion in the guise of findings.” Kepler v. Chater, 68 F.3d 387, 391
(10th Cir.1995) (quotation and citation omitted). The ALJ must “explain why the specific
evidence relevant to each factor led him to conclude claimant’s subjective complaints were not
credible.” Id. Based on the fact the ALJ is instructed to further develop the possibility of a
somatoform disorder, the ALJ will also be required to revisit his credibility determination.
Plaintiff’s final allegation of error is that the ALJ failed to consider plaintiff’s correct age.
This argument does not have merit. The ALJ listed plaintiff to be 49 years old at the date of
onset. (R. 22). While this was plaintiff’s true age at the time of application, the accepted
practice in the Tenth Circuit is to take a person’s age at the time of the ALJ’s decision, which
made plaintiff 51 years old. Either way, the ALJ stated plaintiff was “an individual closely
approaching advanced age,” and application of the Grids, with a light RFC, still classified
plaintiff as “not disabled.” If the ALJ changes plaintiff’s RFC as a result of his investigation into
a somatoform disorder, the Grid rules will need to be revisited as well.
Conclusion
For the above stated reasons, this Court REVERSES and REMANDS the
Commissioner’s denial of Disability Insurance Benefits.
SO ORDERED this 19th day of January, 2012.

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