Gilbertson v. Astrue
Filing
18
MEMORANDUM OPINION AND ORDER reversing and remanding decision of Commissioner. Signed by U.S. District Judge Karen E. Schreier on 2/27/2014. (KC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
ALI M. GILBERTSON,
Plaintiff,
vs.
CAROLYN W. COLVIN,
Acting Commissioner of Social
Security,
Defendant.
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CIV. 12-4176-KES
MEMORANDUM OPINION
AND ORDER REVERSING AND
REMANDING DECISION OF
COMMISSIONER
Plaintiff, Ali M. Gilbertson, seeks review of the Commissioner of Social
Security’s decision denying her claim for disability insurance benefits.1 The
Commissioner opposes the motion and requests that the court affirm the
decision. The court reverses and remands.
PROCEDURAL HISTORY
Gilbertson applied for disability insurance benefits on August 6, 2008,
alleging disability beginning September 5, 2006. AR 172.2 Her application was
denied at the administrative level, and she requested a hearing before an
Administrative Law Judge (ALJ). AR 107. Following a hearing held on
1
Under Fed. R. Civ. P. 25(d), Carolyn W. Colvin is automatically
substituted for Michael J. Astrue. This action survives the substitution. 42
U.S.C. § 405(g).
2
record.
All citations to “AR” refer to the appropriate page of the administrative
March 11, 2011, the ALJ concluded that Gilbertson was not entitled to
benefits. AR 19. The Appeals Council denied Gilbertson’s request to review the
decision of the ALJ. AR 1-6. Subsequently, Gilbertson appealed to this court to
review the decision of the Commissioner denying her benefits. Docket 1.
FACTS
Gilbertson was born on January 30, 1961. Upon completing high school,
she entered the military, where she served six years on active duty with the
Army, followed by sixteen years in the Air National Guard. AR 58. In the Army,
Gilbertson was a field medic. Id. For nine years, Gilbertson worked as a
cardiovascular technician at Sioux Valley Hospital specializing in
electrophysiology studies, and then for approximately nine years she was a lab
technician at Avera McKennan Hospital. AR 59. Gilbertson has one daughter
from her first marriage.
On March 7, 2005, Gilbertson suffered an injury at work that resulted in
a herniated disk in her neck. After an epidural block treatment failed to
manage her pain, Gilbertson underwent surgery on her neck to remove the
herniated disk and fuse the vertebrae on either side. AR 906. Following this
procedure, Gilbertson underwent physical therapy and was able to return to
work on a limited basis. Shortly after her surgery, Gilbertson began to
experience increased difficulty swallowing, and eventually she underwent a
second surgery on September 6, 2006, to remove the plate and screws inserted
2
in her neck. AR 391-92. During the second surgery, a nerve was damaged,
causing Gilbertson to suffer from Horner’s syndrome.3 AR 487.
After her second neck surgery, Gilbertson underwent more physical
therapy. She reported increased pain in her neck after short periods of
exertion, and headaches and difficulty reading stemming from her Horner’s
syndrome. AR 66-67. Gilbertson returned to work on a limited basis in Avera’s
communications center with various accommodations for her condition, but
she reported being unable to work more than three hours a day without
intolerable neck pain. AR 62. Gilbertson received a workers’ compensation
settlement and has not worked since June of 2009.
Gilbertson has also received treatment for depression stemming from her
injury, marital problems, financial trouble, and a gambling addiction. In the
past, Gilbertson struggled with alcoholism. Additionally, Gilbertson underwent
a sex change operation from male to female in June of 2009, which transition
is not the basis of her disability claim. Gilbertson previously filed a claim for
social security disability benefits based on her neck injury, which was denied
on November 6, 2007, and was never appealed. AR 100.
3
Horner’s syndrome is a rare disorder resulting from damage to certain
nerves that travel from the brain to the eyes and face. Horner’s syndrome
usually affects only one side of the face. Typical symptoms include a drooping
eyelid, decreased pupil size and decreased sweating on the affected side of the
face. Mayo Clinic, http://www.mayoclinic.org/diseases-conditions/
horner-syndrome/basics/definition/con-20034650 (last visited February 12,
2014).
3
ALJ DECISION
After a hearing in which Gilbertson was represented by counsel, the ALJ
issued an unfavorable decision. Initially, the ALJ treated Gilbertson’s claim
alleging disability beginning on September 5, 2006, as an implied request to
reopen the prior initial denial dated November 6, 2007. AR 22. The ALJ
determined that the new evidence submitted with Gilbertson’s current claim
was cumulative and did not constitute new and material evidence to reopen her
prior claim. Therefore, the ALJ limited Gilbertson’s current claim to November
6, 2007, at the earliest, although relevant evidence from before that date was
considered. AR 22-23.
In evaluating Gilbertson’s claim, the ALJ applied the five-step process for
determining disability. See 20 C.F.R. § 404.1520. At the first step, the ALJ
found that Gilbertson had engaged in substantial gainful activity (SGA) from
September 8, 2008, through June of 2009. AR 25. Rather than stop at that
step, the ALJ evaluated whether Gilbertson could establish a disability at the
remaining steps beginning in June of 2009, when her SGA ended. AR 27. At
step two, the ALJ determined that Gilbertson’s neck condition relating to her
cervical fusion was a severe impairment. Id. The ALJ also considered
Gilbertson’s depression, sleep apnea, swallowing problems, Horner’s syndrome,
carpal tunnel syndrome, and past alcohol abuse, but determined those were
nonsevere impairments. AR 27-29. Based on those findings, the ALJ concluded
4
at step three that Gilbertson did not have an impairment or combination of
impairments that met or equaled a listed impairment. AR 29.
Before moving on to step four, the ALJ determined that Gilbertson had
the residual functional capacity (RFC) to lift and carry 20 pounds occasionally
and 10 pounds frequently; sit as well as stand and/or walk for six hours in a
work day with normal breaks; frequently balance but only occasionally climb
ladders; climb steps slowly with a handrail; and occasionally stoop, crouch,
kneel, and crawl. Id. The ALJ also acknowledged that Gilbertson had mild
limitations on social functioning and her ability to maintain concentration,
persistence, and pace. Id. In deciding Gilbertson’s RFC, the ALJ found that
Gilbertson’s subjective complaints of pain were exaggerated and unsupported
by medical evidence. Id. Based on that RFC and the testimony of a vocational
expert, the ALJ determined at step four that Gilbertson could perform her past
work as a laboratory technical assistant as generally performed in the national
economy. AR 33. Therefore, the ALJ concluded that Gilbertson was not entitled
to disability benefits. AR 34.
STANDARD OF REVIEW
A reviewing court must uphold the Commissioner’s decision if it is
supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g)
(“The findings of the Commissioner as to any fact, if supported by substantial
evidence, shall be conclusive . . . .”); Teague v. Astrue, 638 F.3d 611, 614 (8th
5
Cir. 2011). “Substantial evidence is ‘less than a preponderance, but is enough
that a reasonable mind would find it adequate to support the Commissioner's
conclusion.’ ” Pate-Fires v. Astrue, 564 F.3d 935, 942 (8th Cir. 2009) (quoting
Maresh v. Barnhart, 438 F.3d 897, 898 (8th Cir. 2006)). “The ‘substantial
evidence in the record as a whole’ standard is not synonymous with the less
rigorous ‘substantial evidence’ standard.” Burress v. Apfel, 141 F.3d 875, 878
(8th Cir. 1998). “ ‘Substantial evidence on the record as a whole’ . . . requires a
more scrutinizing analysis.” Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir.
1987) (citation omitted). The court considers evidence that both supports and
detracts from the Commissioner’s decision. Moore v. Astrue, 623 F.3d 599, 605
(8th Cir. 2010). If the Commissioner’s decision is supported by substantial
evidence in the record as a whole, the court may not reverse it merely because
substantial evidence also exists in the record that would support a contrary
position or because the court would have determined the case differently.
Krogmeier v. Barnhart, 294 F.3d 1019, 1022 (8th Cir. 2002) (citing Woolf v.
Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993)).
In determining whether the Commissioner’s decision is supported by
substantial evidence in the record as a whole, the court reviews the entire
administrative record and considers six factors: (1) the ALJ’s credibility
determinations; (2) the claimant’s vocational factors; (3) medical evidence from
treating and consulting physicians; (4) the claimant’s subjective complaints
6
relating to activities and impairments; (5) any third-party corroboration of
claimant’s impairments; and (6) a vocational expert’s testimony based on
proper hypothetical questions setting forth the claimant’s impairment(s).
Stewart v. Sec’y of Health & Human Servs., 957 F.2d 581, 585-86 (8th Cir.
1992) (citing Cruse v. Bowen, 867 F.2d 1183, 1184-85 (8th Cir. 1989)).
The court also reviews the Commissioner’s decision to determine if an
error of law has been committed, which may be a procedural error, the use of
an erroneous legal standard, or an incorrect application of the law. Collins v.
Astrue, 648 F.3d 869, 871 (8th Cir. 2011) (citations omitted). Issues of law are
reviewed de novo with deference accorded to the Commissioner’s construction
of the Social Security Act. Id. (citing Juszczyk v. Astrue, 542 F.3d 626, 633 (8th
Cir. 2008)).
DISCUSSION
I.
Step One
Gilbertson argues that the ALJ erred at step one by determining that
Gilbertson had engaged in SGA from September 8, 2008, through June of
2009, making her ineligible for benefits up through that time. The
Commissioner concedes that the ALJ incorrectly calculated Gilbertson’s
earnings, and that when correctly calculated, Gilbertson’s earnings would place
her below the threshold for engaging in SGA. Docket 16 at 19-21. The
Commissioner asserts that the ALJ’s step one error is nonetheless harmless
7
because the ALJ still considered evidence from throughout Gilbertson’s
treatment, and Gilbertson has not shown any prejudice resulting from the
error.
If Gilbertson is disabled as she alleges, however, the ALJ’s decision to
exclude the time between November 6, 2007, and June of 2009 due to a
miscalculation of SGA would deny Gilbertson benefits to which she would
otherwise be entitled. Furthermore, because of the ALJ’s erroneous calculation
of SGA during the time period of September 8, 2008, through June, not the
first, 2009, the ALJ did not consider this time period in determining whether
there has been more than a continuous 12-month period during which the
claimant was disabled. Docket 16 at 27. Such an error cannot be considered
harmless. On remand, the ALJ should properly apply the rules regarding SGA
to Gilbertson’s case.4
II.
Step Two
At step two, Gilbertson must establish whether she has a medically
determinable physical or mental impairment that is severe. 20 C.F.R.
§ 404.1520(a)(4)(ii); Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007) (“It is the
claimant’s burden to establish that [her] impairment or combination of
4
Gilbertson raises the issue of the ALJ’s decision not to reopen her
previous claim. Docket 10 at 28. In light of this court’s ruling on SGA, on
remand the ALJ should also reconsider whether Gilbertson could reopen her
prior claim without a showing of “good cause.” See 20 C.F.R. § 404.988(a).
8
impairments are severe.”) (citation omitted). To be considered severe, an
impairment must “significantly” limit the claimant’s physical or mental ability
to do basic work activities, 20 C.F.R. § 404.1521(a), such as walking, standing,
sitting, lifting, pushing, pulling, reaching, carrying, handling, seeing, hearing,
speaking, understanding, remembering simple instructions, using judgment,
responding appropriately to usual work situations, and dealing with changes in
a routine work setting. 20 C.F.R. § 404.1521(b)(1)-(6).
Gilbertson argues that the ALJ incorrectly concluded that her Horner’s
syndrome was not a severe impairment. Docket 10 at 28-30. The
Commissioner contends that step two is merely a screening mechanism, and
because the ALJ found a severe impairment at step two and moved on in the
sequential process, it was not error to fail to identify an additional severe
impairment. Docket 16 at 22.
The Eighth Circuit has held that a failure to correctly identify a severe
impairment at step two even though other severe impairments are found at
that step is not necessarily harmless. See Nicola v. Astrue, 480 F.3d 885, 887
(8th Cir. 2007) (“[W]e reject the Commissioner’s argument of harmless error.
We are persuaded by Nicola’s assertion . . . that the ALJ erred in failing to find
that her diagnosis of borderline intellectual functioning was a severe
impairment.”). Therefore, the court turns to whether the ALJ’s decision
9
regarding Gilbertson’s visual impairment at step two is supported by
substantial evidence in the record as a whole.
In assessing Gilbertson’s visual impairment at step two, the ALJ stated:
Following the second surgery on September 6, 2006, the claimant
reported a drooping left eyelid, a little bit of difficulty focusing, and
some headaches. Evaluation by an ophthalmologist on October 4,
2006, resulted in a diagnosis of Horner’s syndrome on the left with
mil[d] ptosis5 and miosis.6 Dr. Hammer concluded this was due to
swelling or irritation of the cervical sympathetic chain. It was noted
it would be rechecked in one to two months. (Exhibits 3F and 15F,
duplicate exhibits)[.]
There is no showing the claimant ever sought treatment for such a
condition subsequent to October 4, 2006. She only testified that if
she reads more than 20 to 30 minutes, she will get a headache.
She will then stop reading and rest. (Testimony)[.] As such, the
undersigned concludes said condition was short-lived and due to the
effects of the [second] surgery on September 6, 2006. If present
after June, not the first, 2009, it constitutes a non-severe
impairment within the meaning of the Social Security Act as it has
no more than a “de minimus,” if any, effect on her ability to
perform basic work-related activities.
AR 28 (emphasis added). The ALJ did not discuss Dr. Elkins’s findings
regarding the severity and permanence of Gilbertson’s eye condition.
The ALJ’s decision referred to October 4, 2006, the initial date on which
Gilbertson saw Dr. Hammer. AR 483. But the ALJ did not discuss Gilbertson’s
follow-up appointments with Dr. Hammer on November 7, 2006; February 7,
5
Ptosis refers to the sinking down or prolapse of an organ, in this case,
the superior eyelid. Stedman’s Medical Dictionary 1600 (28th ed. 2006).
6
Miosis is a contraction of the pupil. Stedman’s Medical Dictionary 1214
(28th ed. 2006).
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2007; and May 30, 2007. AR 484-87. Following Gilbertson’s appointment on
May 30, 2007, Dr. Hammer wrote, “I really do not see any changes here and I
have not recommended an aggressive work-up at this point. This came from
trauma from a cervical neck procedure . . . and it may or may not improve with
time.” AR 487. Additionally, Gilbertson mentioned visual difficulty numerous
times to different medical providers. Most significantly, Dr. Elkins evaluated
Gilbertson at the request of Avera McKennan’s claims adjuster to determine the
severity of Gilbertson’s eye impairment. In an impairment rating written on
July 11, 2008, Dr. Elkins noted ptosis, asymmetric pupils, and dilation lag
consistent with Horner’s syndrome. AR 523. Based on his findings, Dr. Elkins
assigned a 6 percent whole person permanent impairment for the visual loss
alone, and he stated that Gilbertson had reached maximum medical
improvement. AR 524. This finding stands in direct contrast to the ALJ’s
speculation that Gilbertson’s visual impairment related to Horner’s syndrome
was short-lived and de minimus.
The ALJ appears to have concluded that Gilbertson’s visual impairment
was nonsevere based on a lack of treatment reflected in the record. But the
record does reflect follow-up treatment and a finding of partial permanent
disability almost two years after the initial diagnosis. Without more explanation
by the ALJ regarding the treatment records from Dr. Hammer and the partial
permanent disability finding by Dr. Elkins, the court does not know how the
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ALJ considered those medical opinions and how much weight the ALJ gave to
them. As it stands, the ALJ’s conclusion that Gilbertson’s visual impairment
was short-lived and de minimus is not supported by substantial evidence in
the record as a whole.
III.
RFC
Before an ALJ moves to step four, the ALJ determines the claimant’s
RFC. 20 C.F.R. § 404.1520(a)(4). A claimant’s RFC “is the most [she] can still
do [in a work setting] despite [her] limitations.” 20 C.F.R. § 404.1545(a)(1). The
RFC assessment is an indication of what the claimant can do on a “regular and
continuing basis” given the claimant’s disability. 20 C.F.R. § 404.1545(b).
“ ‘The ALJ should determine a claimant’s RFC based on all the relevant
evidence, including the medical records, observations of treating physicians
and others, and an individual’s own description of [her] limitations.’ ” Lacroix v.
Barnhart, 465 F.3d 881, 887 (8th Cir. 2006) (quoting Strongson v. Barnhart,
361 F.3d 1066, 1070 (8th Cir. 2004)). The RFC must include the limitations
from all medically determinable impairments, regardless of whether they are
considered severe. SSR 96-8p (“In assessing RFC, the adjudicator must
consider limitations and restrictions imposed by all of an individual’s
impairments, even those that are not ‘severe.’ ”). “ ‘[T]o find that a claimant has
the [RFC] to perform a certain type of work, the claimant must have the ability
to perform the requisite acts day in and day out, in the sometimes competitive
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and stressful conditions in which real people work in the real world.’ ” Reed v.
Barnhart, 399 F.3d 917, 923 (8th Cir. 2005) (citing Thomas v. Sullivan, 876
F.2d 666, 669 (8th Cir. 1989)).
In concluding that Gilbertson could perform a range of light work with
some limitations, the ALJ relied upon the evaluations of the state agency
physicians. The ALJ found that Gilbertson’s statements about her pain were
“exaggerated, generally not credible, and not supported by a preponderance of
credible medical opinion and evidence in record.” AR 29. Additionally, the ALJ
gave little weight to the opinions and records from Dr. Foley because he did not
treat Gilbertson for her neck pain. AR 33.
Gilbertson argues that her RFC, as determined by the ALJ, is not
supported by substantial evidence in the record as a whole because the ALJ
ignored the opinions of Drs. Cho, Johnson,7 Elkins, and Foley.8 Separately,
7
Dr. Johnson’s opinion that Gilbertson had a 25 percent impairment
rating due to her cervical fusion and her release to “light duty type work”
starting at four hours a day does not contradict the ALJ’s RFC determination
and does not support reversal.
8
Dr. Foley was not Gilbertson’s treating physician for her neck pain. As a
result, it is not error for the ALJ to give less weight to the opinion of Dr. Foley.
See Reed v. Barnhart, 399 F.3d 917, 922 (8th Cir. 2005) (lack of relevant
treatment history constitutes “good reason to give less weight to the opinion of
the treating physician). Additionally, the ALJ was not under a duty to recontact
Dr. Foley to clarify his conclusions because Dr. Foley had already stated in his
cover letter that he was not a specialist in this area and that Drs. Ripperda and
Cho would be better positioned to address the issues. The duty to recontact
treating physicians does not extend to all circumstances. See Hacker v.
Barnhart, 459 F.3d 934, 938 (8th Cir. 2006) (articulating that the requirement
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Gilbertson argues that the ALJ did not properly assess Gilbertson’s credibility
with respect to her subjective complaints of pain, ignored corroborating thirdparty statements, and incorrectly concluded that Gilbertson was motivated by
a desire to obtain a large workers’s compensation settlement.
A.
Medical Opinions
1.
Dr. Cho
Dr. Cho performed a functional capacities evaluation of Gilbertson on
September 22, 2005. During the evaluation, Dr. Cho found that Gilbertson was
able to occasionally lift 16-30 pounds at waist level and frequently lift 8-15
pounds; could occasionally bilaterally carry 11-20 pounds and frequently carry
6-10 pounds; could occasionally stand statically but frequently sit and
continuously stand/walk; could occasionally kneel, bend, climb stairs and
ladders; could frequently balance; could rarely reach overhead but could
occasionally reach far horizontally and frequently reach close horizontally;
could at least frequently perform all types of manipulation except firm grasp;
and could only occasionally rotate. See AR 850.
Dr. Whittle, a state agency physician, performed two evaluations of
Gilbertson. In the first, dated November 5, 2007, Dr. Whittle found that
Gilbertson could occasionally lift 20 pounds and frequently lift 10 pounds;
could frequently stand/walk; could frequently sit; could frequently climb stairs
to recontact physicians is not universal).
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but never climb ladders; could occasionally balance, stoop, crouch, and crawl,
and frequently kneel; was limited in reaching all directions, particularly
overhead; and was unlimited in other types of manipulation. AR 500-07. In his
second evaluation, dated April 18, 2009, Dr. Whittle assessed numerous
different postural limitations and found that Gilbertson had no manipulative
limitations, including reaching overhead. AR 657-64.
In the RFC determination, the ALJ gave great weight to Dr. Whittle’s
second assessment, without discussing its contradictions with the treating
physician, Dr. Cho’s, assessment and Dr. Whittle’s first assessment. Because
Dr. Cho’s assessment and Dr. Whittle’s first assessment largely corroborate
each other, and both contradict the evaluation relied upon by the ALJ with
respect to postural and manipulative limitations, the ALJ committed reversible
error by not giving reasons for relying on Dr. Whittle’s second opinion and
disregarding the other two opinions.
2.
Dr. Elkins
Gilbertson argues that the ALJ’s RFC discussion does not mention any
visual limitations, including the assessment by Dr. Elkins. Docket 10 at 36.
The Commissioner contends that the ALJ properly discounted Gilbertson’s
subjective complaints of vision impairment. Docket 16 at 34-35. But the ALJ’s
entire discussion of Gilbertson’s visual impairment is found in two paragraphs
of the ALJ’s step two decision. See AR 28. Even if Gilbertson’s limitations
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stemming from her Horner’s syndrome were nonsevere, they still must be
incorporated in formulating her RFC. See SSR 96-8p, at *5. The ALJ’s failure to
consider the impact of Gilbertson’s visual impairment, whether severe or
nonsevere, constitutes reversible error. See Washington v. Shalala, 37 F.3d
1437, 1440 (10th Cir. 1994) (“We note at the outset that the ALJ failed to
consider plaintiff’s vision loss in conducting the step four inquiry. This failure,
alone, would be grounds for reversal.”). This is particularly true in this case,
where the ALJ found that Gilbertson could perform her past relevant work as a
laboratory technician as it is generally performed. AR 33, 351. That position
requires frequent near visual acuity, U.S. Dep’t of Labor, Selected
Characteristics of Occupations Defined in the Revised Dictionary of Occupational
Titles (1993 ed.), Pt. A, § 02.04.02, and generally involves the “coordinated
movement of hands, eyes, and fingers to use delicate and sensitive
equipment . . . .” Id. § 02.04. Because the ALJ stopped his analysis after
determining that Gilbertson was capable of performing her past relevant work
as a laboratory technical assistant without considering the impact of
Gilbertson’s visual impairment, the ALJ committed reversible error.
B.
Credibility
“[W]hen evaluating a claimant’s credibility, in addition to considering the
absence of objective medical evidence to support complaints of pain, an ALJ
should consider a claimant’s reported daily activities, the duration, frequency
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and intensity of his or her pain, precipitating and aggravating factors,
medication, and functional restrictions.” Steed v. Astrue, 524 F.3d 872, 875 n.4
(8th Cir. 2008) (citing Polaski v. Heckler, 739 F.2d 1320 (8th Cir. 1984)); see 20
C.F.R. § 404.1529(c)(3). “The ALJ is not required to discuss methodically each
Polaski consideration, so long as [the ALJ] acknowledged and examined those
considerations before discounting [Gilbertson’s] subjective complaints.” Steed,
524 F.3d at 876 (internal quotation omitted). An ALJ must make express
credibility determinations detailing reasons for discounting a claimant’s
subjective complaints of pain. Dipple v. Astrue, 601 F.3d 833, 837 (8th Cir.
2010). An ALJ’s credibility determination is entitled to deference because the
ALJ is in a better position than a reviewing court to gauge credibility. Travis v.
Astrue, 477 F.3d 1037, 1042 (8th Cir. 2007).
Gilbertson argues that the ALJ’s conclusion regarding her motivation to
receive a large workers’ compensation settlement is not supported by
substantial evidence in the record as a whole. Additionally, Gilbertson
contends that the ALJ improperly discounted corroborating third-party
statements.
1.
Gilbertson’s Credibility
The ALJ concluded, in part, that Gilbertson was not being honest about
her pain in an effort to obtain a larger workers’ compensation settlement so she
could pay for her gender reassignment surgery. AR 32. This is largely based on
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the facts that Gilbertson filed a workers’ compensation claim, that she pursued
gender reassignment surgery, and that she made statements to Dr. Thomas
Price, a psychologist, that she might be retiring and she was anticipating a
settlement which would allow her to undergo some gender transition
procedures. AR 32; AR 950.
Based on Gilbertson’s two statements as recorded by Dr. Price, the ALJ
concluded that Gilbertson engaged in a years-long effort of falsely reporting
pain to mislead her doctors and physical therapists, benefit from a larger
workers’ compensation settlement, and use those proceeds to fund her gender
reassignment surgery. But Gilbertson started the transition procedures in
approximately March of 2008, AR 665, and the statements made to Dr. Price
were made on December 4, 2008, both well after she began to report significant
pain, which was in 2005. Gilbertson has been through two neck surgeries,
suffered nerve damage as a complication from the second surgery, endured
epidural block treatment, and taken multiple narcotic pain medications.
Furthermore, numerous medical providers documented instances in which
Gilbertson expressed a desire to return to work as soon as possible. See, e.g.,
AR 417 (reporting Gilbertson expressed frustration at not being able to go back
to work); AR 418 (observing that one of Gilbertson’s stated goals was to go back
to work); AR 421-22 (noting that Gilbertson was going to ask Dr. Ripperda
when she would be able to return to work); AR 609 (“Overall [Gilbertson] seems
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very interested in continuing to come to physical therapy to try and improved
[sic] h[er] overall condition and eager to increase h[er] function . . . .”); AR 611
(“[Gilbertson] has been tearful throughout our time together discussing h[er]
losses and limitations. . . . [Sh]e laments on what [s]he could do wanting to go
back to a job where [s]he enjoyed everyday work . . . .”); AR 613 (“[Sh]e feels
like [s]he is the kind of person that has gone 150 mph and always benefited
[sic] from good hard work.”).
Gilbertson has a long history of hard work both in the Army and in
private employment. Numerous providers noted Gilbertson’s desire to return to
work. Based on the evidence in the record, the ALJ’s conclusion that Gilbertson
was deliberately lying about her pain for years to bolster her workers’
compensation position is not supported by substantial evidence in the record
as a whole. This finding of Gilbertson’s motivation is intertwined with the rest
of the ALJ’s credibility determination. On remand, the ALJ should reevaluate to
what extent Gilbertson’s subjective complaints of pain are credible based on all
the evidence in the record.
2.
Third-Party Statements
Gilbertson also argues that the ALJ did not consider the third-party
evidence submitted by Gilbertson’s mother, daughter, and coworkers in
determining Gilbertson’s RFC. Docket 10 at 37. The Commissioner must
consider statements from other persons when evaluating the intensity and
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persistence of a claimant’s symptoms, including pain. See 20 C.F.R.
§ 404.1529(c). The affidavits in question corroborate Gilbertson’s activities of
daily living and her subjective complaints of pain. See AR 352-54 (affidavit of
Lucille Gilbertson); AR 357-60 (affidavit of Amanda Gilbertson); AR 365-66
(affidavit of Audrey Herzog); AR 368-69 (affidavit of Kathleen Buchholz); AR
371-72 (affidavit of Lois Sudbeck).
When corroborative evidence from lay witnesses would be discredited by
the same evidence that discredits a claimant’s own testimony, the failure of an
ALJ to separately discuss the corroborating lay witness testimony has no
bearing on the outcome. See Lorenzen v. Chater, 71 F.3d 316, 319 (8th Cir.
1995) (citing Robinson v. Sullivan, 956 F.2d 836, 841 (8th Cir. 1992)). But
because the court is remanding for reconsideration of Gilbertson’s credibility,
the ALJ should consider the third-party statements in the manner set forth in
20 C.F.R. § 404.1529(c), and base the credibility finding on all the relevant
evidence in the record as a whole.
CONCLUSION
The ALJ’s decision is not supported by substantial evidence at step one,
step two, the RFC determination, or Gilbertson’s credibility. Because further
development on those issues is needed, remand is appropriate. On remand, the
ALJ should consider whether Gilbertson’s visual limitations constitute a severe
impairment. The ALJ should also incorporate those limitations, severe or
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nonsevere, into Gilbertson’s RFC. Additionally, when determining Gilbertson’s
RFC, the ALJ should explain the weight given to medical opinions, including
the opinion of Dr. Cho and Dr. Whittle’s first assessment. The ALJ should
reassess Gilbertson’s credibility based on all the evidence in the record. Finally,
the ALJ should determine when Gilbertson began not engaging in SGA and
determine whether there has been more than a continuous 12-month period
from that point forward during which Gilbertson was disabled. Accordingly, it
is
ORDERED that the Commissioner’s decision denying Gilbertson’s claim
for disability insurance benefits is reversed and remanded for further
proceedings.
Dated February 27, 2014.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
UNITED STATES DISTRICT JUDGE
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