JOHN M. BODENHAUSEN, Magistrate Judge.
This matter is before the Court for review of an adverse ruling by the Social Security Administration. The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
On April 1, 2015, plaintiff Robert L. S., Jr., protectively filed an application for supplemental security income, Title XVI, 42 U.S.C. §§ 1381 et seq., with an alleged onset date of February 19, 2008.
Plaintiff and counsel appeared for a hearing on January 26, 2017. (Tr. 64-105). Plaintiff testified concerning his disability, daily activities, functional limitations, and past work. The ALJ also received testimony from vocational expert Barbara Myers, M.S. The ALJ issued a decision denying plaintiff's applications on April 21, 2017. (Tr. 18-28). The Appeals Council denied plaintiff's request for review on December 19, 2017. (Tr. 1-5). Accordingly, the ALJ's decision stands as the Commissioner's final decision.
Plaintiff, who was born on August 22, 1965, was 42 years old on the alleged onset date.
He lived alone in a house in walking distance of the homes of his parents and one of his sons. (Tr. 86). He completed high school and had a mixture of regular and special education classes. (Tr. 69-70). He previously worked as a truck driver and a farm laborer. (Tr. 70, 255).
When plaintiff applied for disability benefits in 2015, he listed his impairments as rib fracture, bulging discs, knee problems, shoulder problems, neck problems, and sleep disorder. He was 5-feet, 11-inches tall and weighed 358 pounds. (Tr. 246). In a Function Report completed in May 2015 (Tr. 263-70), plaintiff stated that he had a substantial amount of pain, which affected his abilities to walk, stand, sit, lift, and sleep. He used a cane around the house. He struggled to manage cooking, cleaning, bathing, and completing household tasks and relied on his son to do more labor-intensive chores. Plaintiff also took care of small dogs, although his son delivered dog food for him. His hobbies and interests included reading and watching television. He used to be able to work, hunt, fish, and pursue other recreational activities. As a result of his impairments, he was unable to stand for very long and all of his daily tasks took longer to complete. He struggled to dress and bathe. He did not sleep well at all due to pain and apnea. His lack of sleep affected his mood and ability to get along with others. He had a driver's license and borrowed his father's truck to go to medical appointments, the lawyer's office, and grocery shopping. He had difficulty concentrating, finishing tasks, and following instructions. He got along "very, very poorly" with authority and did not handle stress or changes in routine well. (Tr. 268-69). Plaintiff had difficulty with lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, talking, stair climbing, completing tasks, concentrating, understanding, following instructions, using his hands, and getting along with others. He could walk "a matter of feet" before he needed to rest for a few minutes. In a narrative portion, plaintiff stated that he was in constant pain and did not sleep well. All his prior work had been as a laborer and he did not have any skills he could transfer to another field. Plaintiff's son David also completed a Function Report that is largely consistent with plaintiff's report. (Tr. 274-81). David added, however, that plaintiff was completely dependent on his son and parents for financial support and their capacity to help was being strained. David visited twice a week to bring supplies and help with chores. He stated that his father was in constant pain and had sleep apnea, was very difficult and stubborn, and was not capable of working. Furthermore, he added, "no one in their right mind would hire him." (Tr. 281).
Plaintiff traced his impairments to an injury in 2008.
Plaintiff's right rotator cuff was torn and he had a bone spur. As a consequence, lifting weights as light as a coffee cup caused pain. He had recently discussed surgery to address the tear in the rotator cuff and remove part of his collar bone. (Tr. 77-78). He was undecided about whether to have the surgery. He testified that, due to pain in his right knee, he needed both arms to get up in the morning or rise from a chair and he did not know how he would manage to take care of himself after surgery if he could not use his right arm. (Tr. 78-79). He described his left shoulder as worn out from factory work and testified that he had bursitis. Plaintiff had been treated with steroid injections, but the effects eventually wore off. He also had stiffness in his neck and nerve pain in his left arm. (Tr. 77). He had been prescribed medicines, but they "didn't work for [him] inside [and] affect[ed his] mental part a little bit." He took Naproxen, which dulled the pain somewhat. (Tr. 80, 308-09, 312).
Plaintiff testified that he had hypersomnia and had suffered from sleep apnea most of his life. He began CPAP treatment in 2011 or 2012. (Tr. 84). He tossed and turned all night and catnapped on the floor during the day. He often woke gasping for air. Plaintiff also had depression attributed to the decline in his physical health. He did not have an active social life, pursue hobbies, or have friends. He interacted with his son, who lived next door, and his parents, who lived half a block away; he also went to town meetings, where he was generally one of very few people in attendance. (Tr. 81-82, 86, 91, 93). He was not able to concentrate long enough to watch a movie and had been diagnosed with attention deficit disorder (ADD/ADHD). (Tr. 91). His physician prescribed medication for the condition but discontinued it when it did not appear to be helping. (Tr. 91-92). Finally, he was obese and had tinnitus. (Tr. 82-83, 91).
In response to questions from the ALJ, plaintiff testified that he was able to prepare and clean up simple meals. His parents had a vegetable garden that he picked from and he had what he called "a green patch" in his yard that produced "tender greens" and "turnip greens." It reseeded itself each year and he did not till it or weed it. (Tr. 89-90). He used a rider mower to mow the lawn, a task that took about 40 minutes, after which he was "done for the day." (Tr. 90). In addition, he drove to appointments about once a month. After 20 minutes of driving, he had a burning sensation in his tailbone and his left leg went to sleep. (Tr. 87-88). He got a stiff neck from holding the steering wheel and had pain in his shoulder and nerve pain in his left arm.
Vocational expert Barbara Myers was asked to testify about the employment opportunities for a hypothetical person of plaintiff's age, education, and work experience who was limited to light work, who could frequently reach overhead in all directions bilaterally; who could never climb ladders, ropes, or scaffolds; could occasionally climb ramps and stairs, balance, stoop, kneel, crouch and crawl; could occasionally operate a motor vehicle and be exposed to vibration; and could work in a moderate noise environment. According to Ms. Myers, such an individual would not be able to perform plaintiff's past work, but could work as a cashier or a collator operator. (Tr. 101-02). There would be no work available if the individual were further restricted to only occasional reaching in all directions bilaterally. Similarly, there would be no work available if the individual needed additional breaks during the work day to elevate his legs or would be off-task 20% of the work day due to severe pain. (Tr. 102-03).
The administrative transcript includes records of plaintiff's medical treatment as far back as 2011. During the period under review, plaintiff had complaints of pain in his neck, low back, and shoulders, for which he was treated with medications, injections, and osteopathic manipulations. He was also diagnosed with and treated for sleep apnea, diabetes type II, gout, depression, anxiety, and attention deficit disorder. He was morbidly obese and was provided with dietary advice and exercise goals. In December 2013, he underwent a laparoscopic appendectomy. Plaintiff's primary argument is that the ALJ failed to address his complaints of shoulder pain and improperly concluded that he was capable of reaching overhead and in all directions frequently. Accordingly, the Court here discusses medical records bearing on this issue.
On April 15, 2013, plaintiff sought treatment at the Northeast Missouri Health Council, Inc., from primary care physician Melanie S. Grgurich, D.O., for pain in his right shoulder.
Plaintiff saw pain specialist Theresa T. Rickelman, D.O., on June 20, 2013. (Tr. 334-36). Plaintiff reported that he had pain in his neck, left arm and shoulder, low back, and legs. He also had numbness in his left arm and left leg, a sharp ache in his hands, and shooting pain in his left leg. On examination, Dr. Rickelman noted that plaintiff appeared to be in distress and was unable to sit in one position for any length of time. He needed assistance to heel-toe walk and squat. Forward and backward bending increased his low back pain and any movement of the left arm caused increased pain, especially in the shoulder. Dr. Rickelman noted that plaintiff's MRIs were very difficult to interpret due to his size but stated that it appeared he had degenerative disease in the low back and facet arthritis and degenerative disease in the cervical spine. Plaintiff complained that steroids made him jittery, so she prescribed Neurontin and Mobic. She directed him to exercise in water. Although he would have benefited from physical therapy, his insurance did not cover it. In July 2013, Dr. Grgurich noted that plaintiff had tenderness to palpation throughout his spine and shoulders, with mildly reduced range of motion. (Tr. 725-29). She injected plaintiff's left shoulder with lidocaine.
In September 2013, plaintiff told Dr. Rickelman that he still had a lot of pain, especially in the low back, and he had to change positions frequently. (Tr. 337-38). He was unwilling to consider further injections because the shoulder injection had not helped and did not feel like the Neurontin was effective. He was reluctant to try new medications, see a neurologist, or undergo osteopathic manual medicine. Dr. Rickelman suggested that he could return in the future if he reconsidered these treatment options. Indeed, in January 2014, Dr. Rickelman noted that plaintiff was in so much pain that he was willing to undergo an epidural steroid injection to treat low-back and radicular left-leg pain. (Tr. 352-53).
Also in January 2014, Karen A. Sylvara, D.O., completed a disability consult. (Tr. 773-74). She listed plaintiff's chief complaints as two bulging discs in his low back, one moderate and one severe, bilateral shoulder pain with popping and crackling in the left shoulder, and gout. In addition, plaintiff reported that he had "shifting" vertebrae in his neck. He stated his pain was never below level 7 on a 10-point scale. He reported that gabapentin and Mobic were not effective and hydrocodone made him sweat. On examination, plaintiff had pain in his back, neck, and shoulder. Dr. Sylvara assessed plaintiff with a history of bulging discs, left shoulder pain with a history of tendinitis, right knee sprain, and osteoarthritis. She recommended that he be treated at a pain clinic.
On February 11, 2014, Tom Reinsel, M.D., of the Missouri Spine Center, evaluated plaintiff for complaints of pain that radiated to his left hand with constant tingling, chronic lowand mid-back pain that radiated to his left foot, and pain in the right buttock. (Tr. 358-59). The steroid injection administered by Dr. Rickelman had not provided relief. On examination, plaintiff was not in acute distress, was able to walk on heels and toes, and had a normal gait. He had "excellent" range of motion and normal extension. Palpation produced slight diffuse tenderness in the lumbar and cervical spine. Dr. Reinsel reviewed an MRI from 2012 and noted that it was "limited in the quality and number of images obtained." The MRI showed "some changes" in the cervical and lumbar spine but plaintiff's spine "structurally look[ed] fairly good." Surgery was unlikely to help plaintiff and Dr. Reinsel recommended that plaintiff exercise regularly and lose weight, which might improve but would not eradicate his pain. In addition, he might benefit from seeing a rheumatologist.
There is a gap in the medical records until February 2015, when plaintiff began osteopathic manipulative treatment at the Gutensohn Clinic of the A.T. Still University. (Tr. 387-91). Plaintiff reported that he had pain in his neck, left shoulder, and low back that started in 2008. On examination, plaintiff had muscle tension and/or spasm throughout his spine with decreased ranges of motion plus restriction of the sacroiliac joint. Treatment improved the spine symptoms. Plaintiff was given home exercises and directed to attend the aquatic center. On his return on March 20, 2015, plaintiff reported some improvement in his back pain. (Tr. 382-86). Plaintiff had three more osteopathic treatments in April and May 2015. (Tr. 377-81, 372-76, 435-39). He reported nearly 100% improvement in his left hip pain. (Tr. 435). On examination, he continued to show muscle tension and/or spasm with decreased ranges of motion.
On April 6, 2015, plaintiff sought treatment at an urgent care center for sharp pain and popping in his ribs. He had moderate tenderness to palpation. X-rays showed no acute fracture. Plaintiff was given an injection of Toradol and a prescription for Meloxicam. (Tr. 401-04, 354, 426).
In June 2016, Joseph W. Novinger, D.O., of the Northeast Missouri Health Council, Inc., noted that plaintiff had bilateral shoulder pain with loss of grip and trouble lifting. (Tr. 911-14). On examination, Dr. Novinger noted that plaintiff had limited range of motion in the right shoulder. Hawkin's test and the Drop Arm test
On October 26, 2016, plaintiff was seen by Richard Wolkowitz, M.D., at the Samaritan Pain Clinic, on referral from Dr. Grgurich. (Tr. 48-50). According to plaintiff, his low-back pain was never below level 7 on a 10-point pain scale. He spent a good part of his day lying on the floor trying to relieve his pain. He also reported some sensory changes in his arms and legs and weakness in his hands. He tended to drop things. He did not like the side effects of Percocet and took Naprosyn for pain relief. An MRI of the lumbar spine revealed facet arthritic changes, mild degeneration, moderate disc bulging, mild loss of disc height, and bilaterally severe neuroforaminal stenosis at L5-S1. He also had mild spondylosis of the cervical spine. On examination, plaintiff had tenderness to palpation of the spine. Beatty's maneuver and Patrick's test were both negative, while straight leg raises and Fortin's sign were positive.
On January 8, 2017, Dr. David Louis Flood, M.D., evaluated plaintiff's right shoulder pain. (Tr. 36-37). On examination, plaintiff had slightly reduced ranges of motion, positive impingement signs, and reduced supraspinatus strength. Imaging studies showed minimal degenerative changes, a Type III acromion, and torn supraspinatus. Plaintiff was diagnosed with a torn rotator cuff of the right shoulder which Dr. Flood proposed repairing with arthroscopic surgery.
On October 21, 2016, J. Tod Sylvara, D.O., completed a disability examination. (Tr.
1006-07). Dr. Sylvara reported that the examination was normal other than plaintiff's obesity. Plaintiff had good range of motion of the spine, arms, and legs. Dr. Sylvara opined that plaintiff had the ability to perform "many types of work," with the exception of hard labor. The ALJ noted that Dr. Sylvara was an examining source and had not had the opportunity to observe plaintiff over a period of time. The ALJ found that Dr. Sylvara's opinion was not consistent with objective diagnostic evidence of chronic pain and gave the opinion limited weight. (Tr. 25)
On December 30, 2016, primary care physician Dr. Grgurich completed a medical source statement. (Tr. 1019-20). She listed plaintiff's symptoms as neck, low back, and bilateral shoulder pain. At his most recent office visit, he displayed impaired mobility throughout the spine, right shoulder tenderness, and morbid obesity. His diagnoses of the spine included osteoarthritis, degenerative joint disease, degenerative disc disease, and spinal stenosis. He also had osteoarthritis of the shoulder and knee. His treatments had included joint injections, epidural steroid injections, weight loss, and physical therapy. Dr. Grgurich opined that plaintiff was able to stand for 15 minutes at a time, sit for 15 minutes at a time, occasionally lift 20 pounds, frequently lift 10 pounds, frequently manipulate, and occasionally raise his arms over shoulder level. She further opined that he could work for one hour a day and needed to elevate his legs for most of an 8-hour work day. The ALJ gave this opinion partial weight. (Tr. 25). In particular, the ALJ found that Dr. Grgurich's findings that plaintiff could perform light work and frequently manipulate were consistent with the objective diagnostic and clinical findings in the record. The ALJ found that Dr. Grgurich's opinion that plaintiff could only work one hour a day was not consistent with his testimony regarding his daily activities, such as caring for pets, preparing meals, driving short distances, gardening,
To be eligible for disability benefits, plaintiff must prove that he is disabled under the Act.
The Social Security Administration has established a five-step process for determining whether a person is disabled.
The Court's role on judicial review is to determine whether the ALJ's finding are supported by substantial evidence in the record as a whole.
The Eighth Circuit has repeatedly emphasized that a district court's review of an ALJ's disability determination is intended to be narrow and that courts should "defer heavily to the findings and conclusions of the Social Security Administration."
The ALJ's decision in this matter conforms to the five-step process outlined above. The ALJ found that plaintiff had not engaged in substantial gainful activity since April 1, 2015, the application date. (Tr. 20). At steps two and three, the ALJ found that plaintiff had severe impairments of obesity, degenerative disc disease of the cervical and lumbar spine, right shoulder impairment, hearing loss, tinnitus, depression, and attention deficit hyperactivity disorder. (Tr. 20-21). The ALJ found that plaintiff's sleep apnea, right knee impairment, and left ankle impairment were not severe. Plaintiff does not challenge the ALJ's findings regarding his severe impairments. The ALJ then determined that plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment.
The ALJ next determined that plaintiff had the RFC to perform light work, except that he could frequently reach overhead and in all directions bilaterally. He could never climb ladders, ropes or scaffolds, and could occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and crawl. He could occasionally be exposed to vibration and operate a motor vehicle. He could work in a moderate noise environment. He was limited to simple and routine tasks and simple work decisions. (Tr. 23). In assessing plaintiff's RFC, the ALJ summarized medical and opinion evidence, as well as plaintiff's statements regarding his abilities, conditions, and activities of daily living. While the ALJ found that plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, the ALJ also determined that plaintiff's statements regarding their intensity, persistence and limiting effect were "not entirely consistent" with the medical and other evidence. (Tr. 24).
At step four, the ALJ concluded that plaintiff was unable to perform his past relevant work. (Tr. 26). His age on the application date placed him in the "younger individual" category. He had at least a high school education and was able to communicate in English.
Plaintiff argues that substantial evidence in the record as a whole does not support the
ALJ's determination that he has the RFC to frequently reach in all directions including overhead because his treating physician limited him to occasional reaching above shoulder level.
The regulations define "occasionally" as occurring from very little up to one-third of the time, and "frequently" as occurring from one-third to two-thirds of the time.
Plaintiff's treating physician Dr. Grgurich stated that plaintiff could occasionally lift his arms above the shoulders. (Tr. 1020). In support, she provided a description of plaintiff's symptoms, pertinent medical history, diagnoses, and recent medical findings. A review of the medical records establishes that plaintiff had longstanding complaints of bilateral shoulder pain, which were treated with injections and medications without lasting effect. (Tr. 740-42, 736-39, 733-35, 730-32, 725-29, 920-23). His complaints are also supported by objective medical evidence. X-rays of plaintiff's right shoulder taken in May 2013 disclosed possible impression on the rotator cuff by the clavicle, mild arthritis, minimal downsloping of the acromion, and suspected calcific tendinosis of the rotator cuff. In June 2016, tests for injury to the right supraspinitus ligament were positive. (Tr. 914). And, in January 2017, plaintiff was diagnosed with a torn rotator cuff of the right shoulder. In addition, plaintiff had a number of spine complaints that might contribute to or manifest as shoulder pain.
A treating physician's opinion regarding a claimant's impairments is entitled to controlling weight where "the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record."
The ALJ gave weight to portions of Dr. Grgurich's opinion. In particular, the ALJ found that "Dr. Grgurich's findings of light work
Defendant argues that the ALJ adequately accounted for plaintiff's shoulder impairments by limiting him to no more than "frequent" overhead reaching. The issue presented here, however, is that the ALJ failed to address Dr. Grgurich's assessment and thus did not provide "good reasons" for accepting or rejecting her opinion. Defendant further argues that the ALJ's limitation to frequent overhead reaching is supported by Dr. Sylvara's finding that plaintiff had good range of motion in his upper extremities. Other providers, however, found that plaintiff's range of motion was more restricted or was accompanied by pain.
The Court finds that the ALJ erred in failing to address Dr. Grgurich's assessment that plaintiff was limited to occasional bilateral reaching above shoulder level and that the error was not harmless.
For the foregoing reasons, the Court finds that the ALJ's determination is not supported by substantial evidence on the record as a whole.
Accordingly,
A separate Judgment shall accompany this Memorandum and Order.
