T. LANA WILSON, Magistrate Judge.
Plaintiff William Asay, pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c), requests judicial review of the decision of the Commissioner of the Social Security Administration denying his applications for disability benefits under Titles II and XVI of the Social Security Act ("Act"). In accordance with 28 U.S.C. § 636(c)(1) and (3), the parties have consented to proceed before the undersigned United States Magistrate Judge. (Dkt. # 11). Any appeal of this order will be directly to the Tenth Circuit Court of Appeals.
When applying for disability benefits, a plaintiff bears the initial burden of proving that he or she is disabled. 42 U.S.C. § 423(d)(5); 20 C.F.R. § 416.912(a). "Disabled" under the Social Security Act is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." 42 U.S.C. § 423(d)(1)(A). A plaintiff is disabled under the Act only if his or her "physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work in the national economy." 42 U.S.C. § 423(d)(2)(A). Social Security regulations implement a five-step sequential process to evaluate a disability claim. 20 C.F.R. §§ 404.1520, 416.920;
The role of the court in reviewing a decision of the Commissioner is limited to determining whether the decision is supported by substantial evidence and whether the decision contains a sufficient basis to determine that the Commissioner has applied the correct legal standards.
A disability is a physical or mental impairment "that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 423 (d)(3). "A physical impairment must be established by medical evidence consisting of signs, symptoms, and laboratory findings, not only by [an individual's] statement of symptoms." 20 C.F.R. §§ 404.1508, 416.908. The evidence must come from "acceptable medical sources" such as licensed and certified psychologists and licensed physicians. 20 C.F.R. §§ 404.1513(a), 416.913(a).
Plaintiff was born August 7, 1958 and was 51 years old at the time of the ALJ's decision. (R. 92, 100). He is married with four children. (R. 39, 93). He completed three years of college. (R. 38). He last worked November 7, 2007 as a truck driver. Prior to that, he worked as a nurse for 10 years. (R. 39).
A hearing was held June 15, 2009, in front of Administrative Law Judge ("ALJ") Lantz McClain. During his opening argument, plaintiff's attorney noted that plaintiff's physicians were unable to agree upon a cause for plaintiff's symptoms of pain. He stated that Exhibits 6F and 8F touched on the possibility of a somatoform
Upon questioning by his attorney, plaintiff explains that he has neck pain which makes it difficult for him to turn his neck to the left, even choking him at times. His left shoulder also causes him "an immense amount of pain." (R. 40). Plaintiff claims the grip in his hands is unsteady. His balance is off, and he claims he is unable to move his left leg to use the clutch on a vehicle.
Plaintiff estimates he can stand or walk without a break for approximately 20 minutes. His legs, back, arms, and hands get tired if he stands or walks too long, in which case he needs to rest for approximately 30 minutes or more. (R. 44, 45). He explained that he uses a cane "outside, once in a while, in the house, if I'm having a real bad day," but always carries it with him.
Plaintiff says he can only lift five (5) pounds before his left arm begins hurting "severely," five to ten pounds with his right. (R. 46-47). He claims the limiting factor with his left arm is pain in his shoulder; his right is pain in his hands. (R. 47). He is unable to type with more than two fingers.
Plaintiff says he is no longer able to help with household chores such as vacuuming and dusting. (R. 52). His drivers' license was suspended, and his wife drives him now. He claims to be unable to retain the details of a half hour television program. (R. 52-53). He enjoys fishing and camping, but cannot participate in these activities, because he is unable to tolerate the changes in temperature. (R. 54). He shops infrequently and for short periods. (R. 55).
Next in the hearing, the ALJ turned to the Vocational Expert ("VE"), prompting him to let them all know if his testimony differed from the Dictionary of Occupational Titles ("DOT") as he went. First, the VE summarized plaintiff's prior work history, then the ALJ gave him the following hypothetical:
(R. 57). The VE testified that such an individual could not return to any of plaintiff's previous work. (R. 58). When asked by the ALJ to identify all jobs that fit within the hypothetical, the VE listed: mail clerk, laundry press person, and "various types of sorting jobs." (R. 58). The ALJ then verified that an individual who actually suffers from all of the complaints testified to by plaintiff would be unable to complete an eight-hour workday, five days a week, regularly and would be ineligible for all competitive work.
Plaintiff's attorney then gave the VE a hypothetical of an individual who, two-thirds of the time, could not "understand and remember very short and simple instructions. Socially interact with the general public, co-worker and supervisors. Adapt to competitive work environment and carry out very short and simple instructions." The VE replied that such an individual would not be able to work at all. (R. 61). The attorney explained to the ALJ that he took the limitations from the last paragraph of Exhibit 6F, the consultative examiner's report.
During a face to face contact with the Social Security Department, the reviewer noted that plaintiff had difficulty hearing, answering, and walking. However, the reviewer observed plaintiff to be a fair historian, stopping when asked questions for a few moments before answering. Plaintiff walked slowly with an uneven gait and jumped approximately eight (8) times during the interview, apparently during a stabbing pain. (R. 127-128).
According to a Disability Report — Adult (R. 135-144), plaintiff's limiting conditions are neuropathy, arthritis, three discs in his neck pressing on nerves, and depression. (R. 131). He stated "I have to wear braces on both my hands, it takes me a lot longer to do anything. I am in constant pain. I have trouble sleeping, writing, using my hands. I have frequent stabbing pain. I have chronic pain in my shoulders, arms and hands. Exertion of any kind causes dizziness, pain" in answer to "How do your illnesses, injuries or conditions limit your ability to work?"
Plaintiff completed a Function Report — Adult (R. 156-163), dated July 29, 2008, claiming he "fixes food" for his children with assistance from his wife. (R. 139). His hobbies include fishing, camping, TV, video games, cars, and bikes. (R. 142). He claims to no longer do these things.
Plaintiff visited Good Samaritan Health Services six times between March 31, 2008 and July 1, 2008, complaining of bilateral hand pain with stiffness, paresthesias (tingling and numbness; loss of sensation), and neck pain. (R. 188-217). He received an x-ray of each of his hands, and a MRI of his cervical and upper thoracic spine. (R. 199-201, 208, 210). He was treated with Lyrica (relieves neuropathic pain), naproxen (to treat inflammation and pain of arthritis), gabapentin (treats seizures and nerve pain), skelaxin (muscle relaxer), and Ultram (narcotic-like pain reliever). (R. 191).
His x-rays showed an old fracture of the fifth metacarpal (finger) of his right hand with no other significant abnormality, both views of his left hand were normal, and the MRI revealed abnormalities at C4-C7.
Paul Peterson, M.D., of Broken Arrow Bone and Joint Specialists, examined plaintiff June 26, 2008. Dr. Peterson summarized plaintiff's complaints and history, then summarized his physical examination results. (R. 324). Dr. Peterson stated plaintiff was alert and oriented with a "flattened" affect. His cervical range of motion was limited to 20° flexion, 25° extension, 25° right lateral rotation, and 30° left lateral rotation. Plaintiff's reflexes were symmetrical at the elbows and wrists, and his grip strength was normal. Dr. Peterson noted pain with performance of a nerve compression test over the carpal tunnels, with "no wasting of the thenar musculature."
Dr. Peterson's recommendations were for plaintiff to continue use of splints, stretches and anti-inflammatory medication until he could process the appropriate forms to apply for Medicaid. Dr. Peterson noted that since plaintiff was uninsured, once he obtained Medicaid, Dr. Peterson would "do [his] best to marshal him through a reasonable workup, including EMGs and possibly obtain a neurosurgical consultation." (R. 324).
An intake form from Broken Arrow Family Clinic dated March 11, 2009 shows plaintiff's complaints to be pain in his left ankle, in his shoulder, hand and back; three compressed discs in his neck; his memory is "going"; and poor balance. (R. 323). Prior surgeries were thorasic outlet syndrome in 1982 and knee surgery in 1977.
Plaintiff presented July 22, 2008 at OSU Family Medicine with complaints of severe neck pain and bilateral upper extremity paresthesias. (R. 218). Plaintiff was seen by Thomas Pickard, D.O. Dr. Pickard noted a decreased range of motion in plaintiff's neck, as well as decreased strength bilaterally in the upper extremities. Dr. Pickard's impressions were degenerative joint disease of the cervical spine, radiculopathy, and chronic neck pain. The plan was for plaintiff to be referred to a neurosurgeon and to continue Lyrica. (R. 219).
Plaintiff presented to Kalvin White, D.O., of Tulsa Spine & Specialty Hospital, on September 22, 2008 complaining of pain, cramping, loss of balance, and stiffness. (R. 288). He described the pain as sharp, burning, throbbing, shooting, aching, cramping, crushing, stabbing, and tingling, all with coldness, hotness and electricity.
Upon physical examination, Dr. White noted:
(R. 305). Dr. White diagnosed plaintiff with cervical spondylosis, cervical radiulopathy, carpal tunnel syndrome, and neck pain. (R. 280, 303-06). He performed a cervical epidural steroid injection under fluoroscopy at C7-T1, without sedation, to try to alleviate plaintiff's symptoms.
In a letter to Dr. Pickard, Dr. White stated plaintiff reported no significant improvement with the initial injection, so on October 6, 2008, plaintiff received another injection at the C4 location. (R. 257-258, 269-270, 300-302). In a second letter to Dr. Pickard dated November 17, 2008, Dr. White informed him the October 6, 2008 procedure resulted in minimal improvement in plaintiff's neck and shoulder pain. At this November 17th visit, Dr. White again repeated the procedure at the C4-5 location and refilled his pain medication. (R. 297-301).
On November 3, 2008, Cornelia O. Mertiz, D.O., of OSU Physicians, completed a handicap parking application, requesting a temporary placard for plaintiff, stating plaintiff could not walk 200 feet without stopping to rest, and he could not walk without the use of an assistive device, such as a brace or cane. (R. 253). Notes from OSU Physicians dated November 3, 2008 show plaintiff had decreased strength bilaterally in his upper extremities, and decreased range of motion in his neck. (R. 310). Dr. Mertz's impressions were disc osteophyte complex with significant narrowing of C5-C6 foramina, and anterior cord impingement at C4-C5. Dr. Mertz's plan was an urgent referral to a neurosurgeon. (R. 311).
On January 8, 2009, plaintiff was diagnosed with strep pharyngitis and radiculopathy. Jeffrey Chasteen, D.O. gave him a prescription and referral to neurology. (R. 309). On March 2, 2009, John DeWitt, D.O., F.A.A.N., wrote to Dr. Chasteen after examining plaintiff. (R. 312-313). Dr. DeWitt performed an electromyographic study of both of plaintiff's arms. The results were normal, and Dr. DeWitt could find no "organic" explanation for plaintiff's difficulties. He stated plaintiff had a very mild case of carpal tunnel syndrome which did not need surgical intervention, and some minor cervical spondylosis, which was not causing any cord compression or neurologic dysfunction. (R. 313). In his report, which accompanied his letter, Dr. DeWitt detailed his testing and results. (R. 314-316).
Plaintiff presented to David Min, M.D. on January 6, 2009, for a pain evaluation with complaints of pain in his neck which radiated into his shoulders and down both arms, on the left side more than the right. Plaintiff complained his pain was "working down his back." He also complained of balance problems, pain in his right knee, and weak hands which gave him a tendency to drop things. (R. 343). His medication list included oxycodone-acetaminophen (7.5/325) (pain relief), Tramadol HCL (narcotic-like pain reliever), Baclofen (muscle relaxer), and Gabapentin (nerve pain treatment).
Upon physical examination and testing, Dr. Min discovered plaintiff could heel-toe walk well; his finger to nose test was normal; reflexes were symmetric, Achilles reflexes were absent bilaterally. Dr. Min stated plaintiff was "well developed, nourished, overweight" and "appear[ed] his stated age." (R. 344). His toes were "downgoing" bilaterally. No clonus or Hollmann's sign were present bilaterally. Dr. Min noted plaintiff's mood was normal with no evidence of depression or anxiety.
Dr. Min discussed plaintiff's MRI results, which showed only mild herniation at C5-6, and a "slight abutment of the herniation to the exiting C6 nerve root" with no evidence of cord compression.
Plaintiff returned to the Broken Arrow Family Clinic for a follow up visit April 1, 2009, stating he was still in pain. (R. 340). No notes regarding care or assessment are listed on this visit.
On May 11, 2009, notes show plaintiff wanted "to know what Dr. Johnson said," telling Brian Coder, D.O. that Dr. Jay Johnson would not accept him as a patient as Dr. Johnson did not accept adult Medicaid. (R. 339). He was diagnosed with chronic neck pain, memory loss, and severe hypertension. His medications were adjusted.
On May 19, 2009, plaintiff presented to the Broken Arrow Family Clinic for a blood pressure checkup. He stated his neck hurt, worse on his left shoulder. Plaintiff rated his pain as a nine (9) on a scale of one (1) to ten (10). He was again diagnosed with hypertension, chronic neck pain, and memory loss. (R. 338).
Plaintiff visited Jay Johnson, D.O., of Tulsa Neurology Clinic, on April 27, 2009. In a letter to Dr. Coder, Dr. Johnson recited plaintiff's complaints, noting plaintiff claimed his pain had steadily increased over the previous two (2) years. (R. 332). Upon examination, Dr. Johnson noted plaintiff was alert and cooperative, his speech fluent. Dr. Johnson stated plaintiff "ha[d] marked exaggeration of his symptoms and marked pain behaviors." (R. 333). Plaintiff's motor examination revealed:
(R. 334). Dr. Johnson's impression was that plaintiff had "memory loss, pain in the neck and thoracic region the etiology of which is uncertain. He [wa]s having gait imbalance as well. There is marked overlay." Dr. Johnson planned to send plaintiff for a MRI scan of the brain and cervical spine, request his EMG results from Dr. Dewitt, and study him further after receiving the results.
Plaintiff cancelled his follow up appointment with Dr. Johnson. In a letter dated May 5, 2009 to Dr. Coder, Dr. Johnson discussed plaintiff's MRI results, stating it revealed "some degenerative changes and disc bulging without neural compression" primarily at C4-5 and C5-6. The MRI of plaintiff's brain was normal. He discussed the EMG study from Dr. Dewitt. Ultimately, Dr. Johnson concluded that plaintiff did not have a neurologic etiology for plaintiff's symptoms. (R. 331).
Plaintiff was examined by Allen W. Sweet, Ph.D. on October 8, 2008 in conjunction with his application for disability benefits. Dr. Sweet recounted initial impressions of plaintiff's movements and actions, stating his wife filled out the paperwork for him to sign, that he walked slowly "with almost a limp" after rising with difficulty. Dr. Sweet noted during the evaluation that plaintiff sat "very stiffly," as though his neck was very stiff. (R. 222). None of plaintiff's medical records were provided to Dr. Sweet. Plaintiff described his daily activities as washing the morning dishes, which he stated "takes [him] a while," he made the bed and vacuumed, but said "that takes forever." Plaintiff claimed he had no hobbies and did not participate in social activities. (R. 222-223).
Dr. Sweet's impression of plaintiff was:
(R. 224).
Carolyn Goodrich, Ph.D., an agency reviewer, completed a Psychiatric Review Technique form for plaintiff dated October 9, 2008. (R. 227-240). Dr. Goodrich assessed the areas of Affective Disorders (12.04), Anxiety-Related Disorders (12.06), and Somatoform Disorders (12.07). As to Affective and Anxiety-Related Disorders, Dr. Goodrich noted plaintiff suffered adjustment disorder. As to Somatoform Disorders, Dr. Goodrich listed pain disorder as the impairment. (R. 230, 232-233). Under functional limitations, Dr. Goodrich rated plaintiff to have mild restriction of activities of daily living, moderate difficulties maintaining social functioning, and moderate difficulties maintaining concentration, persistence, or pace, and found no episodes of decompensation. (R. 237). The "C" criteria of the listings were not rated. (R. 238).
In the section "Consultant's Notes," Dr. Goodrich noted plaintiff's Disability Report — Adult showed no treating source for any mental condition, and no prescription for antidepressant medication. Further, she noted plaintiff's medical evidence of record showed no complaint or diagnosis of depression, surmising plaintiff prescription for Cymbalta in July, 2008 may have been used for pain control. She noted one mention of "alcoholic." She mentioned two independent examinations where plaintiff's psychiatric functions were summarized as basically normal, then went on to discuss part of Dr. Sweet's consultative examination, reciting diagnoses of pain disorder and adjustment disorder. She also recited plaintiff's activities of daily living from the Function Report — Adult form plaintiff completed. (R. 239).
Dr. Goodrich then completed a Mental RFC form for plaintiff, finding he had moderate limitations in the ability to understand and remember detailed instructions, and the ability to carry out detailed instructions. Plaintiff was also rated moderately limited in his ability to interact appropriately with the general public. All other areas were rated as "not significantly limited." Under the Functional Capacity Assessment, Dr. Goodrich noted plaintiff could perform simply and some complex tasks, relate to others on a superficial work basis, and adapt to a work situation. (R. 241-244).
Thurma Fiegel, M.D., gave plaintiff the following physical RFC on October 10, 2008:
(R. 246). No postural, manipulative, visual, communicative, or environmental limitations were found. (R. 247-249).
Phillip Massad, Ph.D., an agency physician, confirmed Dr. Goodrich's determination of October 9, 2008 as written on January 15, 2009. (R. 292). Janet G. Rodgers, M.D., another agency physician, confirmed Dr. Fiegel's findings of October 10, 2008 as written on January 15, 2009. (R. 293-294).
At step one of the five step sequential evaluation process, the ALJ found plaintiff had not engaged in substantial gainful activity since November 7, 2007, his alleged onset date. (R. 14). At step two, the ALJ determined plaintiff's severe impairments to be degenerative disc disease of the cervical spine, mild carpal tunnel syndrome, somewhat obese, pain disorder, and adjustment disorder with depression and anxiety.
(R. 16). At step four, the ALJ determined plaintiff had no past relevant work. (R. 22). At step five, the ALJ determined there were other jobs in significant number in the national economy which plaintiff could perform, to include a mail clerk, a laundry presser, and a sorter. (R. 23). The ALJ therefore concluded plaintiff had not been under a disability as defined by the Act, since November 7, 2007, the alleged date of his onset of disability.
Plaintiff states the ALJ's decision should be remanded with instruction or for award of benefits due to the following alleged errors:
Plaintiff first alleges that the ALJ failed to fully develop the record by not developing the theory that plaintiff could be suffering from a somatoform disorder. The Court agrees.
Plaintiff argues ample evidence exists to suggest that "part, if not most, of the plaintiff's pain is psychologically based. Recognizing this, the plaintiff's representative requested additional mental testing. Tr. 61. The request was not granted." (Dkt. # 15 at 7). Plaintiff states the ALJ's duty to develop the record is triggered when there is "some objective evidence in the record suggesting the existence of a condition which could have a material impact on the disability decision requiring further investigation."
Defendant responded that plaintiff bears the burden of proving his case. While this is true, and the ALJ ordinarily should be entitled to rely upon a claimant's counsel at a hearing to present that claimant's claims adequately, the ALJ remains obligated to develop an issue which is brought to his attention and could have a material impact on the disability decision.
The ALJ took this request under advisement, but did not discuss the request further in his decision. (R. 61).
Nonetheless, the ALJ discussed several pieces of evidence that would lend to the question of a somatoform disorder, including records from OSU College of Osteopathic Clinic, Good Samaritan Health Services, Paul Peterson, M.D., Kalvin White, D.O., Thomas Pickard, D.O., David Min, M.D., John DeWitt, D.O., Jay Johnson, D.O., and Allen Sweet, Ph.D. (R. 17-22). Several of these examining and/or treating physicians could not pinpoint a physical cause for plaintiff's symptoms. Upon remand, the ALJ is instructed to further develop the theory of a somatoform disorder.
Plaintiff's second allegation of error is that the ALJ failed to properly consider Dr. Sweet's opinion. This argument has merit. Defendant attempts to use a post hoc argument to salvage the ALJ's treatment of Dr. Sweet's report. The ALJ did not reference the same parts of the record utilized by defendant to support his argument. The ALJ simply stated:
(R. 22). In any event, the ALJ will need to re-evaluate the Consultative Examiner's opinion during the course of his investigation into a somatoform disorder.
Plaintiff next argues that the ALJ's credibility analysis was faulty. The Court agrees. Speaking to plaintiff's credibility, the ALJ simply stated, "the claimant presented with extreme allegations of pain, but the doctors simply cannot explain the cause based on the objective evidence of record."
Plaintiff's final allegation of error is that the ALJ failed to consider plaintiff's correct age. This argument does not have merit. The ALJ listed plaintiff to be 49 years old at the date of onset. (R. 22). While this was plaintiff's true age at the time of application, the accepted practice in the Tenth Circuit is to take a person's age at the time of the ALJ's decision, which made plaintiff 51 years old. Either way, the ALJ stated plaintiff was "an individual closely approaching advanced age," and application of the Grids, with a light RFC, still classified plaintiff as "not disabled." If the ALJ changes plaintiff's RFC as a result of his investigation into a somatoform disorder, the Grid rules will need to be revisited as well.
For the above stated reasons, this Court REVERSES and REMANDS the Commissioner's denial of Disability Insurance Benefits.
SO ORDERED.
