KELLY K.E. MAHONEY, Chief Magistrate Judge.
Plaintiff Jennifer Gordon seeks judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying her applications for supplemental security income (SSI) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f, and for disability insurance (DI) benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. Gordon argues that the Commissioner erred in evaluating Gordon's subjective complaints, in weighing medical opinion evidence, and in determining appropriate limitations for Gordon's RFC. For the reasons that follow, I
Gordon has suffered from daily headaches since 2009. AR 471, 584-86. She has been treated by her primary care physician, Mark Goedkin, MD, and she began receiving treatment from neurologist Winthrop Risk, MD, in May 2010, and continued to see him through at least September 2016. AR 471, 577, 584, 616-17. Gordon has been diagnosed with hemicrania continua
Gordon's headaches vary in intensity and cause constant pain at the back and on the left side of her head. AR 298-99, 695. On a ten-point scale, Gordon rates her average, daily headache pain at four minimum and five to seven on average with flares up to nine or ten. AR 43, 298, 547, 695. Her headaches cause photophobia, phonophobia, and nausea, and they worsen with overstimulation (including to light and noise), activity, stress, and focusing on things. AR 40, 547, 690, 695. In addition to her daily headaches, Gordon more recently began suffering migraines, which cause pain throughout her entire head (rather than just at the back and left side) and worsen as the day goes on. AR 44, 550, 616-19, 695. They also cause increased nausea and a sense of feeling unwell, and they require Gordon to lie down, usually for the rest of the day. AR 44, 547, 619. Gordon indicated her fibromyalgia causes increased sensitivity to pain. AR 45.
In February 2014, Gordon filed for SSI and DI benefits, alleging disability since March 1, 2012. AR 65-67. Gordon claimed disability based on hemicrania continua; vision issues; low blood pressure, fainting, and balance issues; light and sound sensitivity; nausea; anemia; and constant plugged ears. AR 67. Her applications were denied initially in May 2014 and upon reconsideration in October 2014. AR 65-66, 81-82, 97-100, 120-21, 141-42. In connection with the initial review, the Social Security Administration ordered a consultative examination, which was completed by Harlan Stientjes, PhD, on May 5, 2014. AR 71, 87, 507-11. The initial reviews also included RFC opinions from state agency consultants Melodee Woodward, MD, dated April 22, 2014 (AR 73-77, 89-93), and Rhonda Lovell, PhD, dated May 21, 2014 (AR 77-80, 93-96). The reconsideration reviews included RFC opinions from Marlene Ann Gernes, DO, dated October 22, 2014 (AR 109-10, 115, 130-31, 133-36), and Myrna Tashner, EdD, dated October 10, 2014 (AR 116-18, 137-39), which affirmed the initial review RFC opinions.
Gordon requested further review, and she submitted RFC opinions from Dr. Risk and Therapist Ross, both dated August 30, 2016. AR 166, 577-83. The administrative law judge (ALJ) conducted an administrative hearing
AR 17. The ALJ found Gordon was not able to perform past relevant work (as a janitor or janitor supervisor) because it required medium level of exertion. AR 24, 35-36, 394. The ALJ concluded that Gordon could perform other work as a router, routing clerk, or mail clerk, and that she was therefore not disabled. AR 24-25.
The Appeals Council denied Gordon's request for further review on October 31, 2017 (AR 1), making the ALJ's opinion the final decision of the Commissioner. See
A court must affirm the ALJ's decision if it "is supported by substantial evidence in the record as a whole."
Gordon argues the ALJ's decision must be reversed because: (1) the ALJ erred in discounting Gordon's subjective allegations of her symptoms and their limiting effects; (2) the ALJ erred in weighing medical opinions; and (3) the ALJ's RFC determination is not supported by substantial evidence. For the reasons discussed below, I find the ALJ's findings and RFC determination are not supported by substantial evidence in the record.
When evaluating the credibility of a claimant's subjective complaints, an ALJ must consider the factors set forth in Polaski v. Heckler: "(1) the claimant's daily activities; (2) the duration, frequency, and intensity of the pain; (3) dosage, effectiveness, and side effects of medication; (4) precipitating and aggravating factors; and (5) functional restrictions."
Gordon reported her headaches and pain are worsened by noise, light, hot and cold temperatures, overstimulation, and stress. AR 40-42, 51, 293, 298. She alleged her headaches and associated pain affect her memory and ability to concentrate and focus, and make her slower at performing tasks because of her pain and trouble focusing . AR 40, 49-54, 296-97, 299, 301-02, 306, 308. Gordon testified that in addition to her daily headaches, she suffers from migraines around three times per week. AR 44. She reported using icepacks and lying down in a quiet, dark room to help relieve headache pain, but when her pain reaches a certain point, she must go to bed, usually for the rest of the day. AR 44, 46, 295, 298; see also AR 506 (Gordon reported lying around with an icepack for four days due to a bad headache in March 2014). Gordon also reported a loss of sensation, tingling, and numbness on her left side; an inability to lift more than 20 pounds with her left arm; issues with grip that cause her to drop items; and issues with her vision, speech, and hearing. AR 42-43, 45-46, 48, 295-96, 299.
The ALJ noted that Gordon alleged her symptoms limit her to performing unskilled work; cause issues with her ability to stay on task, maintain attention and concentration, handle stress, and interact with others; and would require her to take unscheduled breaks and be absent four or more time per month. AR 18. The ALJ did not credit these subjective allegations, however, based on (1) a lack of psychological treatment, (2) the results of physical examinations, and (3) Gordon's activities of daily living. Id. Based on the record in this case, I do not find the ALJ provided good reasons supported by the record for discounting Gordon's subjective complaints.
In addressing a lack of psychological treatment, the ALJ correctly noted that Gordon only received such treatment from June to August 2016. AR 20; see also AR 613-615 (Therapist Ross's treatment records). "A claimant's allegations of disabling pain may be discredited by evidence that the claimant has received minimal medical treatment and/or has taken only occasional pain medications."
The ALJ's failure is especially troubling because Gordon's depression results from her other impairments (AR 613), and the record shows she has received extensive treatment for those impairments.
Next, the ALJ relied on the results of physical examinations contained in the treatment records to discount Gordon's subjective complaints. AR 18. The ALJ relied on Dr. Stientjes's one-time mental status examination to conclude that Gordon was capable of social interactions and maintaining concentration, persistence, and pace consistent with the ALJ's RFC determination. AR 19. This does not constitute substantial evidence to support the ALJ's conclusion, especially in light of Dr. Stientjes's overall opinion about Gordon's limitations (AR 510-11; see also infra at 12) and the overall record in this case as discussed below. The only other examination records specifically referenced by the ALJ in discussing Gordon's subjective complaints related to her alleged symptoms of loss of sensation on her left side and issues with her vision, speech, dizziness, and loss of balance (to which the ALJ gave "little credence"). AR 21. The ALJ concluded the referenced examination results (AR 421, 432, 439, 647) did not support Gordon's allegations of issues with sensation, vision, speech, dizziness, and balance. AR 21-22. The ALJ's conclusion, however, is not supported by the record. Multiple treatment notes record findings of loss of sensation on Gordon's left side. AR 592 (Dr. Krain noted decreased sensation on "entire left side" during November 2009 examination); 442, 445, 514, 619, 621, 643, 647 (examinations by Dr. Risk in February and April 2012, May and October 2014, and May and July 2016); 532 (emergency room examination in June 2014); 692 (examination by Dr. Adams in December 2014); 698 (examination by Dr. Rastogi in February 2015). The ALJ decided Dr. Risk's May 2014 findings were based on Gordon's subjective complaints. AR 22. This fails to recognize that sensory deficits may constitute a symptom of pain that can be "clinically observed and recorded" by medical providers.
The ALJ noted Gordon's headaches, fibromyalgia, and cervical disc disease "warrant some extent of workplace limitation," but found "insufficient support for and several inconsistencies with the limitations alleged by the claimant and Dr. Risk." AR 22. Thus, it appears the ALJ relied on other inconsistencies in the record to discount Gordon's subjective complaints. The ALJ pointed to Dr. Risk's November 2014 treatment notations that MRI results did not explain Gordon's left arm discomfort and that Gordon "look[ed] okay" during the visit despite her report of experiencing moderate pain at that time. AR 22, 641. The ALJ relied on this one subjective observation by Dr. Risk, but made no mention of the multiple notations by Dr. Risk that were consistent with Gordon's reported pain. See AR 498, 504, 621, 623, 631, 633, 647, 651 (noting Gordon looked miserable or that she looked like she had a headache). The ALJ also failed to address that in the same November 2014 treatment note, Dr. Risk questioned whether Gordon's abnormal MRI results ("an increasing number of white spots" on her brain) might be the result of another condition (a patent foramen ovale) potentially associated with headaches and that he requested additional testing (Gordon was referred to Dr. Adams). AR 639, 641. Dr. Adams found it was unlikely that Gordon's abnormal MRI results were caused by stroke but that they "may be related to her headaches and migraines." AR 692. Dr. Adams also concluded that Gordon's "focal neurological complaints of sensory loss and weakness on the left side" warranted continued evaluation for vascular disease and that if her headaches could be controlled, "her other neurological symptoms would improve." AR 692. Similarly, the ALJ relied on Dr. Risk's conclusion that Gordon's abnormal MRI results "were likely due [to] small vessel ischemic disease— not an underlying neurological condition." AR 22, 485. The record the ALJ relies on (included with an October 2013 Report of Incapacity), however, appears to have been prepared by Gordon and not Dr. Risk. See AR 484 (typed document titled "What Do we Know" that states, in describing swelling in feet and hands that "
As for Gordon's activities of daily living, although the ALJ noted that Gordon told the consultative examiner (Dr. Stientjes) that she does housework and cooks, the ALJ relied primarily on Gordon providing child care for a neighbor to discount her subjective complaints. AR 19-20. Gordon provided daycare for the child from 2012 to August 2015, and briefly in the summer of 2016. AR 19, 253, 263, 372, 392. The ALJ relied on this activity to find Gordon could "perform light, unskilled work" with a production rate limitation, and that with a limitation on public contact, she could get along with co-workers and supervisors. AR 18, 20. Specifically, the ALJ, in a set of rhetorical questions, found Gordon's childcare activities demonstrated she could pay attention for more than 10-15 minutes, stay on task more than seventy percent of the day, and interact with others. AR 19-20. The ALJ disbelieved Gordon's allegations that others were home during the periods she watched the child. AR 19, 253-55; but see AR 39-40, 291, 302, 309, 319, 329, 337-38, 372. Regardless, the ALJ failed to address the fact that Gordon stopped providing childcare and more significantly, that her condition worsened after that time. Gordon went to the emergency room in March 2015 for stroke-like symptoms and was treated for headache (AR 631, 655-67); her daily headaches began to worsen in March 2016 (AR 620-23); and she began suffering migraines on top of her daily headaches around July 2016 (AR 616-19). The ability to care for young children may be inconsistent with a claimant's alleged limitations. See
Finally, the ALJ's RFC determination limited Gordon's exposure to bright lights and noise (although it is not clear if the limitation for noise stems from Gordon's headaches or hearing loss). AR 17. The ALJ found, based on Dr. Stientjes's consultative examination (AR 507-11) and Therapist Ross's treatment notes (AR 613-15), that Gordon could perform unskilled work and interact with others. AR 19. The ALJ did not specifically address, however, what impact Gordon's migraines or headache flares would have on her ability to work (in particular, her need for unscheduled breaks and to be absent when she suffers from a migraine). This failure further undermines the RFC determination. See, e.g.,
Overall, the record here (including Gordon's daily activities, physical examination results, and treatment history) does not "weigh[] so heavily against [Gordon]'s credibility that the ALJ would necessarily have disbelieved her absent the erroneous inferences he drew from the record."
When determining a claimant's RFC, an ALJ considers medical opinions "together with the rest of the relevant evidence."
Dr. Risk submitted a medical source statement (MSS) dated August 30, 2016. AR 577-80. He found Gordon could not perform even "low stress" work, that she would need to take "a lot" of unscheduled breaks (up to the rest of the day), that she would be off task at least twenty-five percent of the time, and that she would be absent from work more than four days per month. AR 578-59. Dr. Risk also noted that Gordon has issues with concentration. AR 578. The ALJ gave little weight to Dr. Risk's opinions for multiple reasons.
The ALJ found that "Dr. Risk cited no objective test result to support the symptoms he notes" in his opinions. AR 23. The ALJ did not question Gordon's diagnoses of hemicrania continua and migraines, finding her headaches constitute a severe impairment. As noted above, Dr. Risk has treated Gordon for several years, has overseen various modalities of treatment to address her headaches and accompanying symptoms, and specializes in this area. His treatment notes demonstrate he relied on
In addition, the record includes extensive treatment notes from Dr. Risk and others, which outlined the various medications, injections, and other modalities Gordon has received to treat her headaches and other related issues. See AR 415-46, 470-74, 495-506, 513-36, 547-62, 567-68, 584-94, 616-51, 664-99; see infra at 8 n.9. A treating source opinion about the limiting effect of pain, which "can be directly attributed to an objective finding—a diagnosis of [hemicrania continua and migraines—]" may be substantiated by the claimant consistently seeking treatment for her pain and undergoing numerous treatments to alleviate the pain.
The ALJ also found that Dr. Risk's opinions were inconsistent with Gordon's "mostly normal neurological findings" and "physical examination results [that] consistently included full orientation without distress." AR 23. The ALJ concluded these results were inconsistent with Gordon "experienc[ing] constant migraines." Id. Treatment notes of normal mental status examinations (finding no issues with a claimant's alertness, orientation, and judgment) "do not relate, specifically, to claimant's ability to function in the workplace."
5483174, at *4 (N.D. Iowa Nov. 15, 2017). The ALJ here failed to explain how Gordon's neurological findings and physical examination results "would necessarily lead to a conclusion other than the conclusion reached by Dr. [Risk]."
Conversely, Dr. Risk's opinions were also consistent with the other opinion evidence in the record. Therapist Ross found Gordon would be moderately limited in her ability to maintain concentration and attention and that she would be markedly limited in her ability to complete a normal workday or perform at a consistent pace, noting "[h]er pain impacts focus." AR 581. Therapist Ross also found Gordon's pain and stress would frequently to constantly interfere with her ability to maintain attention and concentration. AR 582. He concluded that Gordon would be off-task more than thirty percent of the time and that she would be absent from work and unable to complete a full work day five or more days per month. Id. Dr. Stientjes (the consultative examiner) found that although Gordon could understand simple instructions, she has issues with memory, she was slow at processing, and her "[i]mplementation could be haphazard." AR 510-11. He concluded that Gordon's "[c]ognitive process are slow and seem to be impacted by medication or other processes. . . . [and her] [p]rospect for sustained gainful employment is marginal at best." Id. Dr. Lovell and Dr. Tashner (state agency consultants) found Gordon was moderately limited in her abilities to understand, remember, and carry out detailed instructions; to maintain attention and concentration; and to complete a workday or workweek or perform at a consistent pace. AR 78, 116-17. They specifically noted Gordon could complete "a typical work week in a low stress environment that is devoid of typical time pressures" (AR 79) (emphasis added), and found moderate limitations in Gordon's social functioning. AR 78-79, 117. These opinions, however, were offered in 2014, prior to Dr. Risk's treating source opinion and at a time when Gordon was still able to take indomethacin and had some relief from Botox injections. See AR 76-77, 79-80, 118. Since that time, Gordon had to stop taking indomethacin regularly due to the side effects, and injections did not provide continued relief. AR 618-23, 633, 638-45. Also, Gordon's condition later worsened, starting in March 2015. AR 616-19, 631, 664-89; see also AR 118 (Dr. Tashner noted in October 2014, in affirming the initial review on reconsideration that Gordon's mental condition had not worsened). Gordon's worsening condition may explain differences between the opinions of the state agency consultants and Dr. Risk and Therapist Ross. As noted above, Gordon has tried numerous other medications and treatment modalities with no significant relief. Overall, Dr. Risk's opinion was consistent with the other medical opinions in the record, which contradicts the ALJ's decision to not give Dr. Risk's opinion controlling weight.
The ALJ also found Dr. Risk's opinion inconsistent with Gordon providing childcare. AR 23. The ALJ specifically relied on Gordon being able "to engage in childcare 40 hours per week with her admission that she received no help in doing so." Id. As discussed earlier, the ALJ failed to address that Gordon stopped providing childcare and that her condition worsened. Dr. Risk's opinions were therefore not necessarily inconsistent with Gordon's activities of daily living, and this was therefore not a good reason to give those opinions less weight.
The ALJ failed to show that Dr. Risk's opinion was not supported by the record or that it was inconsistent with the overall record. The ALJ did not provide good reasons for the weight assigned to Dr. Risk's opinions about Gordon's need for unscheduled breaks, being off task, and being absent.
I realize that upon remand, the ALJ may reach the same ultimate conclusion about whether Gordon is disabled, "but the determination is one the Commissioner must make in the first instance."
I