Anderson, Robert v. Astrue, Michael
Filing
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OPINION AND ORDER Entering Judgment for plaintiff. Signed by District Judge William M. Conley on 10/2/14. (jat)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
ROBERT L. ANDERSON,
Plaintiff,
OPINION AND ORDER
v.
13-cv-00084-wmc
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
Pursuant to 42 U.S.C. § 405(g), plaintiff Robert L. Anderson seeks judicial review
of an administrative law judge’s finding that Anderson was not disabled within the
meaning of the Social Security Act. Because the ALJ fails to provide an adequate
explanation for rejecting the opinions of a seemingly well-informed physician’s assistant,
the case will be remanded to the Commissioner for rehearing.
FACTS
I. Background
On January 3, 2012, Administrative Law Judge (“ALJ”) Robert M. Wilson issued a
decision denying Anderson’s application for Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security
Act.
(AR 1.)1
Eventually, this became the final administrative decision of the
Commissioner of Social Security.
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On February 4, 2013, Anderson filed a timely
The citations in this Order are drawn from the Administrative Record (“AR”). (Dkt. #8).
complaint for judicial review in this court pursuant to 42 U.S.C. § 405(g).
From 1993 to 2000, Anderson assembled large satellite dishes. (AR 29.) As part
of his duties, Anderson was required to lift 50 to 150 pounds.
(AR 29-30.)
Most
recently, Anderson served as a tree trimmer for ten years before ceasing all employment
in April 2010. (AR 28, 30.) Anderson’s normal lifting load in that job was an average of
fifty pounds at a time. (AR 28-29.) Anderson worked ten hours a day, four days a week,
and claims to have walked an average of 20,000 steps per day during that time. (Id.)
II. Medical Evidence
A. General
Beginning in 2007, Anderson began dealing with physical issues, starting with
pain in his lower back.
(AR 31.)
In 2008, Anderson’s back pain was treated with
bilateral facet joint injections at the L3-4 and L4-5 vertebrae, an intralaminar lumbar
epidural injection at L4-L5, and on two occasions a medial branch block of dorsal ramus
of L4 and L5. (AR 273, 271, 266.) Anderson was also found to have patellofernoral
pain in his right knee and was given a steroid injection.
(AR 266.)
During 2008,
Anderson was diagnosed with a discoid atelectasis in his right lung, along with a
suspicion of a developing right hilar mass or adenopathy. (AR 327.) He was also found
to exhibit bilateral lower rib deformities, degenerative changes in the sacroiliac joints, and
mild bibasilar atelectasis. (Id.)
Anderson returned for follow up care numerous times between 2009 and 2010.
(AR 314, 308, 203, 304, 298, 274, 360, 289.) On June 12, 2009, Anderson was found
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to have “chronic lumbar pain with recent increase in severity”. (AR 314.) One week
later, Anderson was exhibiting lumber facet syndrome. (AR 203.) In September 2008
and January 2009, Anderson again exhibited chronic back pain. (AR 304, 202.)
On April 16, 2010, Anderson saw David Chakoian, M.D., for a consultative
examination. (AR 290.) Dr. Chakoian found that Anderson had tightness in the lumbar
spine, normal ranges of motion in the mid-to-lower back, normal reflexes, mild weakness
in his left big toe, and an inconsistent pattern of decreased foot and toe sensation. (Id.)
Because Anderson’s MRI was essentially normal, Dr. Chakoian recommended against an
increased dosage of medication to relieve the pain. (Id.)
On April 23, 2010, Anderson stopped working.
(AR 101.)
The next day,
Anderson was hospitalized for renal failure caused by ingestion of non-steroidal, antiinflammatory drugs. (AR 293.) In July 2010, Anderson was further diagnosed with
chronic lower back pain that limited his flexibility and core strength. (AR 360.)
On December 28, 2010, osteopathic physician Syd Foster, D.O., conducted a
physical residual functional capacity (“RFC”) assessment of Anderson for the Social
Security Administration. (AR 328.) Dr. Foster found that Anderson could occasionally
lift and/or carry objects weighing up to twenty pounds; frequently lift and/or carry objects
weighing up to ten pounds; sit, stand, and/or walk with normal breaks for a total of about
six hours in an eight hour workday; and push or pull objects without limitation. (AR
329.) Dr. Foster also found that Anderson should avoid even moderate exposure to
fumes, odors, dusts, gases, and poor ventilation, but found no postural or manipulative
limitations of any kind. (AR 330-32.)
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On March 30, 2011, David Kamper, M.D., conducted another RFC assessment of
Anderson. (AR 424.) Dr. Kamper found that Anderson could occasionally lift and/or
carry up to twenty pounds and frequently lift and/or carry up to ten pounds. (AR 425.)
Dr. Kamper also indicated that Anderson could sit with normal breaks for a total of six
hours and stand and/or walk with normal breaks for a total of six hours in an eight hour
workday. (Id.) Finally, Dr. Kamper opined that Anderson could push or pull objects
without limitation, and that he was only further limited in avoiding concentrated
exposure to fumes, odors, dusts, gases, and poor ventilation. (AR 425-28.)
B. Opinion of Thomas Franke, PA-C
On February 14, 2009, Anderson initially visited Thomas Franke, PA-C. (AR
306.) Franke reported that Anderson had mild lumbosacral pain and a “normal but
cautious” gait.
(Id.)
On June 12, 2009, Franke reported that Anderson’s pain had
increased in severity and had tenderness to palpitation over the lumbar paraspinal
muscles.
(AR 300.)
Franke also noted that Anderson appeared to have no lower
extremity weakness. (Id.) Franke confirmed his diagnosis during a consultation with
Anderson on August 29, 2009. (AR 297.)
On April 16, 2010, Franke diagnosed Anderson with “chronic myofascial back
pain”, opining that Anderson needed to modify his work habits and quality of life. (AR
290.) On May 18, 2010, Franke again identified Anderson’s cautious gait, but found no
signs of significant leg weakness, and prescribed physical therapy. (Id.) On May 28,
2010, Franke found that Anderson’s forward flexion was full, but his extension was
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limited by discomfort. (AR 286.) Franke also reported that Anderson stood from a
sitting position with mild discomfort, and that there was again no sign of lower extremity
weakness. (Id.)
On February 1, 2011, Franke completed a lumbar spine RFC questionnaire
regarding Anderson. (AR 398.) He considered Anderson’s prognosis to be poor and
diagnosed Anderson with chronic lower back pain and lumbar facet syndrome retroactive
to 2007. (AR 398, 401.) He opined that Anderson’s back pain would occasionally be
severe enough to interfere with the concentration and attention required to perform
simple work tasks, that Anderson could walk less than one city block without rest or
severe pain, that Anderson could only sit for fifteen minutes before needing to get up,
and that Anderson could only stand for five minutes before having to sit down. (AR 399400.) Franke further indicated that Anderson could only sit for a maximum of two hours
and stand or walk for a maximum of two hours in an eight hour work day, that he needed
a job permitting him to shift at will, and that he would need to frequently take
unscheduled breaks lasting fifteen minutes. (AR 400.) Franke also recommended that
Anderson never lift anything weighing ten pounds or more and rarely lift anything less
than ten pounds. (AR 401.) Franke further opined that that Anderson could never
twist, bend, and climb ladders or stairs, and could rarely crouch or squat. (Id.)
On October 20, 2011, Franke completed a seond questionnaire regarding
Anderson’s condition and reported an improved prognosis. (AR 512.) Franke reported
that Anderson could lift up to ten pounds frequently.
(Id.)
He also opined that
Anderson could sit and stand for up to thirty minutes consecutively, but still for no more
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than two hours total over an eight hour work day. (Id.) Franke further recommended
that Anderson be given two additional breaks per workday of ten minutes each, and that
Anderson’s condition could be expected to cause more than two absences from work per
month. (AR 513.)
III. Administrative Law Judge’s Decision
At step one, the ALJ found that Anderson had not engaged in substantial gainful
activity since April 23, 2010, the alleged onset date. (AR 13.) At step two, the ALJ
found that Anderson had three severe impairments: “back impairment, renal failure, and
asthma.” (Id.)
At step three, the ALJ attributed “significant weight” to the opinions of state
agency medical consultants Syd Foster, D.O., and David Kamper, M.D. (AR 16.)
In
contrast, the ALJ attributed “little weight” to the opinions of Anderson’s primary
treatment provider, Thomas Franke, PA-C.
Consistent with his weighing of those opinions, the ALJ determined that Anderson
had the RFC to perform a wide range of light work with the following limitations:
[C]laimant is precluded from more than occasional climbing
of ramps or stairs, stooping, bending, or crouching. He is also
precluded from any climbing of ropes, ladders, or scaffolds,
crawling, or kneeling. Further, claimant requires a sit/stand
option so that he need not stand for more than 30 minutes at
a time or sit for more than 30 minutes at a time. In addition,
the claimant is precluded from work exposing him to
concentrated dust, fumes, smoke, chemicals, and noxious
gases.
(AR 14.) The ALJ further determined that Anderson had the RFC to occasionally lift or
carry up to twenty pounds, frequently lift or carry up to ten pounds, and stand or walk
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for up to six hours during a normal eight hour workday. (AR 16-17.)
At step four, the ALJ determined that Anderson was unable to perform any past
relevant work as a tree trimmer and assembler. (AR 17.) At step five, the ALJ relied
upon a vocational expert’s opinion that given Anderson’s age, education, work
experience, and RFC, there were jobs that exist in significant numbers in the national
economy that Anderson could perform. (Id.) As a result, the ALJ found that Anderson
was not under a disability as defined under the statute. (AR 18.)
OPINION
A federal court reviews an ALJ’s decision with deference and will uphold a denial
of benefits unless it is not supported by substantial evidence or is based on an error of
law. 42 U.S.C. § 405(g); Terry v. Astrue, 580 F.3d 471, 475 (7th Cir. 2009). Substantial
evidence means “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). When reviewing
the commissioner’s findings under § 405(g), the court cannot reconsider facts, re-weigh
the evidence, decide questions of credibility or otherwise substitute its own judgment for
that of the administrative law judge. Clifford v. Apfel, 227 F.3d 863, 869 (7th Cir. 2000).
Even so, a district court may not simply “rubber-stamp” the Commissioner’s
decision without a critical review of the evidence. See Ehrhart v. Secretary of Health and
Human Servs., 969 F.2d 534, 538 (7th Cir. 1992). A decision cannot stand if it lacks
evidentiary support or “is so poorly articulated as to prevent meaningful review.” Steele v.
Barnhart, 290 F.3d 936, 940 (7th Cir. 2002). The ALJ must also explain his “analysis of
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the evidence with enough detail and clarity to permit meaningful appellate review.” Id.
See Herron v. Shalala, 19 F.3d 329, 333–34 (7th Cir. 1994). When the administrative
law judge denies benefits, he must build a logical and accurate bridge from the evidence
to her conclusion. Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001).
Anderson principally contends that remand is merited because the ALJ fialed to
give appropriate weight to the opinions of Thomas Franke, PA-C, due to his position as a
physician’s assistant. While a physician assistant’s opinion does not command
controlling weight, SSR 06-03p provides factors that help an ALJ properly analyze what
weight, if any, it does deserve. Specifically, when weighing a medical source’s opinion,
SSR 06-03p requires consideration of the following factors: “(1) How long the source has
known and how frequently the source has seen the individual; (2) How consistent the
opinion is with other evidence; (3) The degree to which the source presents relevant
evidence to support an opinion; (4) How well the source explains the opinion; (5)
Whether the source has a specialty or area of expertise related to the individual’s
impairment(s); and (6) Any other factors that tend to support or refute the opinion.”
Moreover, the ALJ is advised to consider that:
With the growth of managed health care in recent years and the emphasis on
containing medical costs, medical sources who are not “acceptable medical
sources,” such as nurse practitioners, physician assistants, and licensed
clinical social workers, have increasingly assumed a greater percentage of
the treatment and evaluation functions previously handled primarily by
physicians and psychologists. Opinions from these medical sources, who are
not technically deemed “acceptable medical sources” under our rules, are
important and should be evaluated on key issues such as impairment severity and
functional effects, along with the other relevant evidence in the file.
See SSR 06-03p (emphasis added).
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This policy statement has also been credited by district courts. In Brown v. Astrue
2012 WL 6692139 (N.D.Ill. Dec. 19, 2012), the court noted:
SSR 06–3p is clear that the opinions of “other sources” like nurse
practitioners “are important and should be evaluated on key issues such as
impairment severity and functional effects, along with the other relevant
evidence in the file.” Id.; see also 20 C.F.R. § 404.1513(d) (1). They must
also be weighed using the same factors that apply to treating and
acceptable sources. SSR 06– 3p . . . An ALJ's failure to consider a nurse
practitioner's opinion in accordance with these guidelines can amount to
reversible error.
Id. at 7. See also Dogan v. Astrue, 751 F.Supp.2d 1029, 1038 (N.D.Ind. 2010
(reversible error where the ALJ gave no weight to the physician’s assistant).
Here, the ALJ purported to give “little weight” to the opinion of Mr.
Franke because: (1) Mr. Franke was not an acceptable medical source; (2) there
were “substantial differences” between Mr. Franke’s February 2011 opinion and
his October 2011 opinion; (3) many of the limitations identified by Mr. Franke
were “largely unexplained;” and (4) Mr. Franke’s February 2011 opinion was
directly contradicted by Plaintiff’s work history. (AR 16).
Contrary to the Commissioner’s contentions, each of the ALJ’s stated
reasons is deficient on this record. Indeed, the first reason is essentially beside the
point. As already noted, with the growth of managed health care in recent years,
“nurse practitioners and physician assistants have increasingly assumed a greater
percentage of treatment evaluation.”
See SSR 06-03p.
Because of this
development, the so-called, non-acceptable source opinion has taken on greater
significance as recognized by the Social Security Administration. For example, in
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considering the opinion of a physical therapist in Laabs v. Astrue, 2011 WL
2115902 (E.D.Wis May 25, 2011), the court stated:
Although not an “acceptable medical source,” the opinion of a physical
therapist cannot be simply disregarded. SSR 06–3p. To the contrary,
particularly when it comes to chronic conditions, the Seventh Circuit has
recognized physical therapists as having “significant expertise,” that may be
particularly valuable in an assessment of a claimant's limitations in that a
physical therapist's determinations are often made based upon physical
tests and observations rather than the claimant's subjective complaints.
Barrett v. Barnhart, 355 F.3d 1065, 1067–68 (7th Cir.2004). Thus, under
certain circumstances, the opinion of someone who is not an acceptable
medical source, like a physical therapist, might be afforded greater weight
than that of an acceptable medical source, even a treating source. SSR 06–
3p.
Id. at *7. This is not to say that an opinion may not be given greater weight more
highly because it comes from an approved medical source (often a doctor), but
rather that a non-acceptable source can trump evidence from approved sources
because of other relevant factors.
Here, the court’s real concern with the ALJ’s stated reasons, particularly the
first, for giving little weight to the physician assistant’s opinions is that he seems
to have approached the analysis from the wrong frame of reference.
What
reinforces this concern is that the ALJ failed to recognize the significance of SSR06-03p in his analysis, much less consider that rule’s relevant factors.
For
example, nowhere in the decision is there discussion of the length of the
relationship between Physician Assistant Franke and Anderson (over two years);
nor is there discussion of the frequency of the visits (approximately 29 face-to-face
appointments). (AR 314-461.)
Likewise, there is no discussion of Franke’s
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specialty or degree.2 Moreover, all of these factors tend to add weight to the value
of Franke’s opinion. The ALJ’s failure to properly (1) apply SSR 06-03p, and (2)
acknowledge evidence that has a direct bearing on the weight that should have
been given Franke’s opinion, is enough to warrant remand of the ALJ’s decision.
The ALJ’s second reason to discount Franke’s opinion is also deficient. The ALJ
points to Franke’s second report, which indicates that Anderson has “improved” since the
first report. (AR 16.)
Why an improvement in Franke’s assessment of Anderson’s
limitations from his first report (February 2011) to his second report (October 2011)
would be a reason to discount the second report is something of a mystery. If anything,
Franke’s having found an improvement would arguably suggest a dispassionate
assessment, rather than his having taken on the role of an advocate for Anderson.
To the extent the ALJ was actually referring to some ambiguity created by
Franke’s two reports as a reason to give his opinion less weight, he does not say and there
is no reason for this court to speculate. As the case-law provides, where there is an
ambiguity in the evidence, the ALJ should take the simple step of requesting further
information from the source to better explain the precise nature the medical condition.
Smith, 231 F.3d at 437.
That is, “[a]lthough a claimant has the burden to prove
disability, the ALJ has a duty to develop a full and fair record.” Smith v. Apfel, 231 F.3d
2
In normal parlance, to a call physician’s assistant a non-acceptable medical source would be a
misnomer because the degree requirements for the position seem quite demanding. According to the
American Academy of Physician Assistant, most university programs are 26 months and require the
same prerequisite courses as medical schools. Upon certification, the PA may: (1) diagnose and treat
illnesses; (2) order and interpret tests; and (3) develop treatment plans. See American Academy of
Physician Assistant’s website, http://http://www.aapa.org/landingquestion.aspx?id=290 (last visited
October 1, 2014).
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433, 437 (7th Cir. 2000). Moreover, the ALJ is better equipped to make a determination
as to Anderson’s disability claim. Id. (stating that “failure to fulfill this obligation [i.e.,
the duty to develop the record] is ‘good cause’ to remand for gathering of additional
evidence”).
As to the third reason -- that many of the limitations identified by Mr. Franke
were “largely unexplained” -- this rationale for discounting Mr. Franke’s evidence does
not square with the medical record. While the February and October 2011 reports could
be more fulsome in their explanation than what is noted, the explanations can hardly be
considered threadbare. Moreover, when Franke’s explanations are viewed in the context
of his broader treating history, Franke’s conclusions arguably hold up better, having been
drawn from 29 separate visits over a two year period. The results of each visit were
recorded in writing and are summarized in Anderson’s brief, indicating that Franke’s
treatment of Anderson has not only been constant in his medical care, but well
documents and worthy of substantial consideration under SSR 06-03p.
Finally, the ALJ’s fourth reason -- that Franke’s February 2011 opinion was
directly contradicted by plaintiff’s work history -- is not among the express factors
articulated in SSR 06-03p, except for the catchall in factor (6) allowing an ALJ to look at
“any other factors that tend to support or refute the opinion.” Given that the ALJ has
ignored all the specific SSR 06-06p factors that bolster Franke’s opinion, his use of
plaintiff’s sporadic work history to discount Franke’s medical opinion may or may not be
sufficient by itself. If the ALJ had found evidence of substantial gainful employment
after the claimed onset date, he could have rejected Anderson’s disability claim at step
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one of his analysis. But he made no such finding. Instead, he merely criticized Franke
for opining that Anderson’s back issues likely existed during an earlier period when he
was gainfully employed. Given that Franke actually saw Anderson much later, during a
period when he stopped working altogether, the importance of this opinion is arguable at
best. Whatever its import, it was but one of four reasons to discount Franke’s opinion.
Since the other three reasons do not hold up and the ALJ ignored all other specific
factors, the ALJ was not free to cherry pick this one factor without further explanation.
Smith, 231 F.3d at 438 (impermissible cherry-picking providing further cause for
remand).
ORDER
IT IS ORDERED that the decision of defendant Carolyn W. Colvin,
Commissioner of Social Security, denying Robert L. Anderson’s application for disability
insurance benefits and supplemental security income is REVERSED AND REMANDED
under sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this
opinion. The clerk of court is directed to enter judgment for plaintiff and close this case.
Entered this 2nd day of October, 2014.
BY THE COURT:
/s/
________________________________________
William M. Conley
District Judge
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