Slade v. Colvin

Filing 32

MEMORANDUM DECISION AND ORDER remanding case to the Commissioner. On remand, the Commissioner will specifically consider and discuss the evidence regarding Ms. Slade's upper extremity impairments and headaches and their impact on her residual functional capacity assessment. Signed by Magistrate Judge Evelyn J. Furse on 3/1/2017. (eat)

UNITED STATES DISTRICT COURT
DISTRICT OF UTAH

KELLI B. SLADE,

MEMORANDUM DECISION AND
ORDER

Plaintiff,
v.

Case No. 2:16-CV-00030-EJF

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

Magistrate Judge Evelyn J. Furse

Defendant.

Plaintiff Kelli B. Slade (“Ms. Slade”) appeals the Commissioner of Social Security’s
decision denying her claim for Disability Insurance Benefits under Title II of the Social Security
Act (the Act), 42 U.S.C. §§ 401–433, as well as Supplemental Security Income, 42 U.S.C. §§
1381–1383f. (ECF No. 3.) Having considered the parties’ briefs, the administrative record, the
arguments of counsel, and the relevant law, the Court 1 REMANDS the Commissioner’s decision
for further consideration.
BACKGROUND
Ms. Slade filed an application for Disability and Disability Insurance Benefits (“DIB”),
as well as, Supplemental Security Income (“SSI”) on April 24, 2012, alleging disability
beginning March 25, 2011. (A.R. 155–160, 161–67.) The Social Security Administration denied
Ms. Slade’s claims initially on July 26, 2012, and again upon reconsideration on November 29,

1

All parties in this case have consented to United States Magistrate Evelyn J. Furse conducting
all proceedings, including entry of final judgment, with appeal to the United States Court of
Appeals for the Tenth Circuit under 28 U.S.C. § 636(c) and F.R.C.P. 73. (ECF No. 17.)
1

2012. (A.R. 59, 60, 81, 82.) Thereafter, Ms. Slade timely requested a hearing before an
Administrative Law Judge (“ALJ”) on April 17, 2013. (A.R. 122–23.)
An ALJ held a hearing on March 11, 2014 in Las Vegas, Nevada. (A.R. 41–58.) The
ALJ found Ms. Slade not disabled on May 28, 2014. (A.R. 22–40.) The Appeals Council denied
Ms. Slade’s request for review on November 16, 2015. (A.R. 1–6.) This Appeals Council denial
made the ALJ’s decision the final decision of the Commissioner.
Ms. Slade brought this action to appeal the Commissioner’s decision pursuant to 24
U.S.C. § 405(g), which provides for judicial review of the defendant’s final decision.
A. Factual History
An automobile accident at age twelve injured Ms. Slade, resulting in chronic back pain.
(A.R. 282, 339, 458.) This pain worsened in 2005 making work more difficult. (A.R. 458.) She
began receiving pain medication and injections for the pain. (A.R. 458.) In March 2011, Ms.
Slade received a cervical spine steroid injection that caused a cervical spine hematoma. (A.R.
278, 282.) An MRI of her spine showed that the hematoma caused cervical spinal cord
compression. (A.R. 285, 307.) Eventually Ms. Slade underwent a C6-C7 laminectomy and
removal of the hematoma to alleviate the pain. (A.R. 287.) An MRI after the surgery showed
post-surgical changes at C6-T1 and small amounts of fluid within the postsurgical space. (A.R.
365.) Ms. Slade continued to complain of neck pain, upper back pain, and pain in her upper
extremities. (A.R. 387.) Physical examinations showed decreased range of motion in the
cervical spine and decreased reflexes in both the left and right triceps and biceps. (A.R. 390.) In
October 2012, the record reflects that Ms. Slade had difficulty using a knife and fork due to pain
in her upper extremities. (A.R. 458.) She had decreased range of motion in her neck. (A.R.

2

462.) She had reduced motor strength, decreased sensation, and decrease reflexes in her upper
extremities. (A.R. 462, 463.) A Romberg test showed some instability. (A.R. 462.)
Ms. Slade also suffered from headaches since the hematoma. She was diagnosed with
chemical meningitis, a severe headache caused by neurosurgical procedures. (A.R. 314–320.)
Ms. Slade consistently complained of headaches throughout the record. (A.R. 399, 481, 515.)
In February 2014, Dr. Rox Burkett, reviewed Ms. Slade’s entire file and submitted a
report and a residual functional capacity assessment. (A.R. 532–38.) Dr. Burkett noted that Ms.
Slade had severe degenerative disc disease in her cervical spine confirmed by multiple doctors
including specialists. (A.R. 536–37.) Dr. Burkett noted that even the DDS examiner stated Ms.
Slade had credible neck pain and limited strength and range of motion but did not reflect this
finding in his residual functional capacity. (A.R. 537.)
Dr. Burkett stated that Ms. Slade had the diagnoses of advanced degenerative disease of
the C-spine with chronic pain and weakness, as well as, migraine headaches. (A.R. 532.) He
stated she has significant sustainable weakness in her upper extremities. (A.R. 532.)
B. Hearing Testimony
At the hearing, Ms. Slade testified she does not drive because she has difficulty turning
her head and keeping her foot on the accelerator. (A.R. 44.) Ms. Slade stated that her pain runs
along her entire spine. (A.R. 46.) The pain radiates into her shoulders, and her fingertips are
tingly and painful. (A.R. 46.) She has difficulty gripping things. (A.R. 46.) She has headaches.
(A.R. 46.) Ms. Slade’s mother helps with most of the daily activities including helping her dress
and shower. (A.R. 47.) Ms. Slade testified that at least once a week, the headaches are bad
enough that she cannot perform any activities. (A.R. 50.)

3

C. ALJ Decision
In his decision, the ALJ found that Ms. Slade had the severe impairments of degenerative
disc disease of the cervical spine, status post discectomy, status post epidural hematoma, and
chronic pain syndrome. (A.R. 27 (mistakenly noting lumbar degeneration in the title, but
correctly discussing cervical degeneration).) At step 3, the ALJ found that Ms. Slade did not
meet a listing. (A.R. 28.) The ALJ found that Ms. Slade could perform light work with the
following limitations: never able to climb ropes and scaffolds, and occasionally able to climb
ladders and stoop, limited to frequent overhead reaching bilaterally. (A.R. 28.) The ALJ found
that with this residual functional capacity, Ms. Slade could perform past relevant work. (A.R.
33.) The ALJ also found other work existed in the national economy that Ms. Slade can perform.
(A.R. 33–35.) Therefore, the ALJ found Ms. Slade not disabled. (A.R. 35.)
STANDARD OF REVIEW
The Court’s review of the Commissioner’s decision is limited to determining whether her
findings are supported by “substantial evidence in the record and whether the correct legal
standards were applied.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007). “Substantial
evidence is such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. (quotation omitted). The Court may neither reweigh the evidence nor substitute
its judgment for the Commissioner’s. Id.
In its review, the Court should consider the record as a whole, including that evidence
before the ALJ that detracts from the weight of the ALJ’s decision. Shepherd v. Apfel, 184 F.3d
1196, 1199 (10th Cir. 1999). However, the reviewing Court should not reweigh the evidence or
substitute its own judgment for that of the ALJ. Qualls v. Apfel, 206 F.3d 1368, 1371 (10th Cir.
2000). Further, the Court “may not ‘displace the agenc[y’s] choice between two fairly
4

conflicting views, even though the Court would justifiably have made a different choice had the
matter been before it de novo.’” Lax at 1084 (alteration in original) (quoting Zoltanski v. F.A.A.,
372 F.3d 1195, 1200 (10th Cir. 2004)). Lastly, the “[f]ailure to apply the correct legal standard
or to provide this Court with a sufficient basis to determine that appropriate legal principles have
been followed is grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir.
2005) (alteration in original) (citing Byron v. Heckler, 742 F.2d 1232, 1235 (10th Cir. 1984)).
In applying these standards, the Court has considered the Administrative Record, relevant
legal authority, and the parties’ briefs and oral arguments. The Court finds as follows:
ANALYSIS
Ms. Slade raises two issues on appeal. 1) Whether the ALJ erred by failing to evaluate
properly the medical opinion evidence, specifically the opinion of Dr. Burkett; and 2) Whether
the ALJ erred by failing to include specific limitations in Ms. Slade’s residual functional
capacity assessment for headaches and upper extremity limitations. For reasons set forth below,
the Court remands the ALJ’s decision for further analysis regarding Ms. Slade’s residual
functional capacity. On remand, the ALJ must address the medical evidence as to Ms. Slade’s
upper extremity limitations. In addition, the ALJ should further explain his analysis of Ms.
Slade’s headaches as the ALJ failed to address evidence that exists indicating Ms. Slade’s
headaches are not under control as found by the ALJ.
I.

The ALJ Did Not Err in his Evaluation of Dr. Burkett’s Opinion.

On appeal, Ms. Slade argued that the ALJ did not properly weigh the opinions of Dr.
Burkett, an examining source. The ALJ gave Dr. Burkett’s opinions “very little weight” in his
decision. (A.R. 33.) This Court finds that the ALJ applied the correct legal standard in
evaluating Dr. Burkett’s opinion based on the explanation he provides and that substantial
5

evidence supports his conclusion. Dr. Burkett found that Ms. Slade could sit four or five hours
per work day, could stand or walk one or two hours per work day, must lie down one or two
hours per work day, could not lift any amount of weight, and could not perform work on a
regular and continuing basis. (A.R. 32.) The ALJ concluded that Ms. Slade’s daily activities are
“relatively intact” and that Dr. Burkett’s findings and limitations are unsupported by and
inconsistent with Ms. Slade’s own reported activities. (A.R. 32–33.) The ALJ further explained
that the objective medical evidence and the record as a whole show unremarkable findings and
do not note the type of restrictions indicated by Dr. Burkett. (A.R. 32–33.) Further, the ALJ
discounted Dr. Burkett’s opinion because he does not serve as Ms. Slade’s treating physician.
(A.R. 33.) The ALJ articulated valid reasons, supported by substantial evidence, for according
little weight to the opinion of Dr. Burkett, therefore the Court finds no error on this issue.
II.

The ALJ Erred in his Assessment of Ms. Slade’s Residual Functional
Capacity.

Social Security Ruling 96-8p requires that when making findings concerning the
claimant’s residual functional capacity, the ALJ “must include a narrative discussion describing
how the evidence supports each conclusion, citing specific medical facts (e.g. laboratory
findings) and nonmedical evidence (e.g. daily activities, observations).” SSR 96-8p, 1996 WL
374184, *7 (July 2, 1996). The ALJ does this assessment on a function by function basis,
including both exertional and nonexertional limitations for both severe and nonsevere
impairments. SSR 96-8p *5. Finally, the RFC must include a resolution of any conflicts in the
evidence. SSR 96-8p *7. The ALJ must provide specific support with references to the record
for rejection of a claimant’s testimony. McGoffin v. Barnhart, 288 F. 3d 1248, 1254 (10th Cir.
2002). If the ALJ fails to provide specific support for his assessed limitations, then the
6

reviewing court will remand the case for further consideration. Id. In this case, the ALJ failed to
assess the medical evidence regarding Ms. Slade’s upper extremity impairments and headaches
properly.
The Record contains evidence showing Ms. Slade has limited use of her upper
extremities. Medical exams show that she has significant weakness in her upper extremities with
3/5 strength noted in her grip and intrinsic hand muscles and 4-/5 strength in her wrists. (A.R.
462.) The Record reflects pain associated with numbness in her hands and legs with minimal
activity, such as lifting two to three pounds. (A.R. 398, 405.) Her pain interferes with her sleep,
concentration, mood, family functions, recreation, and employment. (A.R. 388.) Ms. Slade has
restricted range of motion of her neck; insufficient to allow her to look up. (A.R. 389.)
The Commissioner argues that the ALJ’s findings regarding Ms. Slade’s upper extremity
limitations are not inconsistent with the evidence of record. (ECF No. 25 at 10.) The
Commissioner argues that the limitations assessed by the ALJ were not inconsistent with “the
evidence showing that she had normal strength on the majority of examinations and normal
range of motion.” Id. However, the ALJ failed to account for specific upper extremity testing
that showed evidence of reduced range of motion in the upper extremities, reduced grip strength,
and reduced reflexes. (A.R. 398, 405, 462.) Case law has made clear that the ALJ cannot pick
and choose from the evidence using only the evidence that supports his theory, he must look to
all the evidence of record. Hardman v. Barnhart, 362 F.3d 676, 681 (10th Cir. 2004). In this
case, the ALJ failed to analyze the records that tend to show Ms. Slade’s upper extremity
limitations. This failure leaves this Court with no way to follow the ALJ’s analysis regarding
this issue. Therefore, the Court must remand to allow the ALJ to explain his analysis of Ms.
Slade’s upper extremity limitations.
7

Similarly, the ALJ found Ms. Slade’s migraine headaches not severe because they were
“adequately controlled or treated.” (A.R. 28.) To support this finding, he cited to two records:
1) a single office visit in July of 2011 where Ms. Slade said her headaches were “better”, and 2)
an MRI brain scan. (A.R. 28.) However, neither of these records demonstrates that Ms. Slade’s
headaches are not severe.
At the hearing Ms. Slade described the headaches as an ongoing problem. She stated that
at least once a week, her headaches are so bad that she is unable to continue her normal activities
and she has associated symptoms such as severe pain, upset stomach, light sensitivity, and audio
sensitivity. (A.R. 50.) The medical records consistently describe these headaches as an ongoing
problem, even after the July 2011 record cited by the ALJ as evidence the headaches were
controlled. (A.R. 399, 481, 515.) In fact, even in the visit cited by the ALJ, Ms. Slade’s
headaches were noted to be “still there, butt [sic] better.” (A.R. 316.) The ALJ remarks that Ms.
Slade received only conservative treatment of medication for her migraines but neglects to
explain what treatment he would expect to see for headaches that would convince him the
headaches impacted Ms. Slade’s functioning.
Many courts have noted that migraines present a particular difficulty. See, e.g., Groff v.
Comm’r of Soc. Sec., No. 7:05-CV-54, 2008 WL 4104689, at *6–8 (N.D.N.Y. Sept. 3, 2008)
(unpublished) (recognizing difficulty of objectively identifying migraines as medically
determinable impairments); Federman v. Chater, No. 95 Civ. 2892 (LLS), 1996 WL 107291, at
*2–3 (S.D.N.Y. Mar. 11, 1996) (unpublished) (same); see also Abdon v. Astrue, No. 10-96GWU, 2010 WL 5391452, at *5 (E.D. Ky. Dec. 22, 2010) (unpublished) (noting difficulty of
evaluating subjective allegations of pain stemming from migraines for purposes of evaluating
pain in the context of determining the RFC); McCormick v. Sec’y of Health & Human Servs.,
8

666 F. Supp. 121, 123 (E.D. Mich. 1987) (noting “[migraine] headaches are not traced easily to
an objective medical condition”), aff’d, 861 F.2d 998 (6th Cir. 1988). In Groff, the district court
acknowledged “the elusive task a doctor faces in diagnosing this impairment as there exists no
objective clinical test which can corroborate the existence of migraines.” Groff, 2008 WL
4104689, at *7–8. The Groff court cited medical literature noting
[t]he cause [of a migraine] is unknown and the pathophysiology is not fully
understood.... The mechanism for migraines is not well defined, but several
triggers are recognized[, including] insomnia, barometric pressure change, and
hunger.... Symptoms usually follow a pattern in each patient.... The patient may
have attacks daily or only once every several months. Diagnosis is based on the
symptom patterns when there is no evidence of intracranial pathologic changes.
Migraine is more probable when the patient has a family history of migraine....
No diagnostic tests are useful, except to exclude other causes. Treatment depends
on the frequency of attacks and the presence of comorbid illness. In general,
treatment can be classified as prophylactic, abortive, or analgesic.
Id. (alteration in original) (quoting The Merck Manual 1376 (17th ed. 1999)). Thus, the Groff
court found error at step two where the ALJ failed to consider the claimant’s subjective
complaints in finding the claimant’s migraines did not constitute a severe medically determinable
impairment. Id. at *8. Likewise, in Federman, the district court held that because no test exists
for migraine headaches, the ALJ could not rely solely on the absence of objective evidence to
support a finding that the claimant’s migraines did not constitute a severe medically
determinable impairment. Federman, 1996 WL 107291, at *2 (citations omitted).
The ALJ has not addressed the records in a way that allows this Court to follow his
evaluation of Ms. Slade’s headaches. The ALJ’s opinion does not provide substantial evidence
to support his decision that Ms. Slade’s headaches were adequately controlled with medication.
The ALJ must provide more analysis of the functional effects of Ms. Slade’s headaches and
upper extremity limitations on her RFC. Therefore, the Court finds the ALJ’s RFC is not
9

supported by substantial evidence, and this Court REMANDS his decision for further
consideration.
CONCLUSION AND ORDER
For the reasons set forth above, the Court REMANDS this case to the Commissioner. On
remand, the Commissioner will specifically consider and discuss the evidence regarding Ms.
Slade’s upper extremity impairments and headaches and their impact on her residual functional
capacity assessment.

DATED this 1st day of March, 2017.
BY THE COURT:

__________________________________
Evelyn J. Furse
United States Magistrate Judge

10