Foust v. Social Security Administration, No. 1:2014cv00017 - Document 15 (E.D. Ark. 2015)
Court Description: MEMORANDUM OPINION AND ORDER reversing the Commissioner's decision and remanding this Case. The remand in this case is a sentence four remand as that phrase is defined in 42 U.S.C. 405(g) and Melkonyan v. Sullivan, 501 U.S. 89 (1991). Signed by Magistrate Judge J. Thomas Ray on 7/28/2015. (ks)
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Foust v. Social Security Administration Doc. 15 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS NORTHERN DIVISION MARK D. FOUST v. PLAINTIFF NO. 1:14-cv-00017 JTR CAROLYN W. COLVIN, Act ing Commissioner of t he Social Securit y Administ rat ion DEFENDANT MEMORANDUM OPINION AND ORDER Plaint iff, Mark D. Foust (“ Foust ” ), appeals t he final decision of t he Commissioner of t he Social Securit y Administ rat ion (t he "Commissioner"), denying his claims for Disabilit y Insurance Benefit s ("DIB") and Supplement al Securit y Income ("SSI"). Bot h part ies have filed Appeal Briefs (docs. 13 and 14), and t he issues are now j oined and ready for disposit ion. Foust maint ains t hat t he ALJ’ s findings are not support ed by subst ant ial evidence on t he record as a whole. 1 Foust bases t his argument on t he findings and conclusions of Dr. Meraj Siddiqui, M.D., (“ Siddiqui” ) and Dr. Anandaraj Subramanium, M.D., (“ Subramanium” ), which he cont ends t he ALJ improperly discount ed. As a result , Foust 1 Subst ant ial evidence means less t han a preponderance but enough t hat a reasonable person would find it adequat e t o support t he decision.” See Boet t cher v. Ast rue, 652 F.3d 860, 863 (8t h Cir. 2011). Dockets.Justia.com cont ends no medical evidence support s t he ALJ’ s assessment of his residual funct ional capacit y. The record reflect s t hat Siddiqui saw Foust on mult iple occasions, bet ween July of 2010 and June of 2012, for his complaint s of back and leg pain. See Transcript at 254257 (07/ 22/ 2010), 242-244 (08/ 18/ 2010), 288-293 (09/ 20/ 2010), 306-310 (10/ 11/ 2010), 235-236 (11/ 01/ 2010), 233-234 (12/ 09/ 2010), 231-232 (02/ 17/ 2011), 352-357 (03/ 01/ 2011), 362-366 (03/ 22/ 2011), 375-379 (04/ 19/ 2011), 409-413 (05/ 10/ 2011), 403404 (06/ 16/ 2011), 397-398 (08/ 15/ 2011), 391-392 (10/ 13/ 2011), 418-419 (12/ 13/ 2011), 439-441 (02/ 09/ 2012), 428-432 (05/ 15/ 2012), 423-426 (06/ 05/ 2012). Siddiqui repeat edly assessed post -laminect omy syndrome, t horacic and lumbosacral spondylolysis, and chronic back pain. Siddiqui’ s progress not es reflect t hat Foust ’ s pain improved when he t ook medicat ion, including hydrocodone, and when he received st eroid inj ect ions and underwent nerve blocking procedures. However, his progress not es also reflect t hat Foust ’ s pain t ypically ret urned aft er a period of t ime. In August of 2012, Siddiqui complet ed a let t er/ checklist in support of Foust ’ s claim for benefit s. See Transcript at 445. In t he let t er/ checklist , Siddiqui st at ed t hat Foust ’ s back pain markedly int erfered wit h his act ivit ies of daily living, prevent ed him from sit t ing or st anding for more t han t went y minut es at a t ime, and required him t o shift posit ions and lie down int ermit t ent ly t hroughout t he day. Siddiqui based t hese findings on a magnet ic resonance imaging t est performed on Foust ’ s t horacic spine in February of 2012, t he result s of which showed, in part , disc prot rusion in his “ cent ral/ right cent ral -2- region T7-8, abut t ing t he vent ral aspect of t he t horacic spinal cord but not causing any significant spinal canal narrowing or cord compression.” See Transcript at 436. The ALJ acknowledged Siddiqui’ s findings and conclusions in assessing Foust ’ s residual funct ional capacit y and const rued t hem as follows: Based on t he evidence in t his claim in it s ent iret y, t he undersigned has concluded t hat while t he claimant has exhibit ed a hist ory of lumbar and t horacic pain wit h radicular sympt oms t hroughout t he course of t he alleged period of disabilit y, sympt oms have been amenable t o significant improvement and ult imat ely st abilizat ion wit h medical t reat ment . As shown by t he evidence, Mr. Foust has consist ent ly report ed significant improvement in t he level of pain sympt oms, wit h report s ... primarily of only moderat e pain confirmed amenable t o management wit h a combinat ions of medicat ions and inj ect ions or ot her conservat ive pain management measures. There is no evidence showing any requirement for surgery, nor does t he evidence show t he discussion of surgery as a necessary t reat ment measure. Addit ionally, t hroughout t he course of t he claimant ’ s ongoing follow-up wit h ... Siddiqui, t he physician has consist ent ly recommended t hat t he claimant should avoid bed rest and t o maint ain normal act ivit ies. Not ably, t he most recent evidence shows no complaint s by claimant of lumbar pain sympt oms since complet ion of a series of pain inj ect ions and bilat eral neurot omies. Furt her, t he claimant report ed t he onset [of] t horacic pain sympt oms only as recent ly as February [of] 2012. See Transcript at 20. Wit h specific regard t o Siddiqui’ s let t er/ checklist , t he ALJ declined t o assign it “ more t han limit ed evident iary weight .” See Transcript at 21. The ALJ did so for t he following reasons: “ t here is no evidence from which t o conclude complaint s by t he claimant of t horacic pain sympt oms prior t o February [of] 2012 nor is t here obj ect ive medical evidence showing a diagnosis of t horacic disc prot rusion at any t ime prior t o -3- February [of] 2012.” See Transcript at 21. In short , t he ALJ concluded t hat t he let t er/ checklist “ doesn’ t really t ell us much.” See Transcript at 21. The record reflect s t hat Subramanium saw Foust in January of 2011 for a consult at ive physical examinat ion. See Transcript at 189-193. Subramanium assessed chronic lumbar radiculopat hy and concluded t hat Foust has a “ moderat e t o severe” limit at ion in his abilit y t o walk, st and, sit , lift , and carry. See Transcript at 193. The ALJ acknowledged Subramanium’ s findings and conclusions in assessing Foust ’ s residual funct ional capacit y but only assigned t hem “ limit ed evident iary weight .” See Transcript at 22. The ALJ did so for t he following reasons: ... [Subramanium] provided t hese findings and conclusions early (January 27, 2011) in t he claimant ’ s t reat ment process and wit hin approximat ely six mont hs of t he alleged disabilit y onset . The evidence as a whole support s a conclusion t hat cont inued medical t reat ment received by t he claimant aft er January [of] 2011 has result ed in significant levels of improvement in pain and overall funct ional capacit ies. See Transcript at 22. In March of 2011, Dr. Bill Payne, M.D. (“ Payne” ) reviewed Foust ’ s medical records. See Transcript at 217-224. Payne concluded on t he basis of his review t hat Foust has sufficient residual funct ional capacit y t o perform light work, a conclusion lat er affirmed by Dr. Sharon Keit h, M.D. (“ Keit h” ), anot her reviewing physician. See Transcript at 250. The ALJ acknowledged Payne and Keit h’ s conclusions in assessing Foust ’ s residual funct ional capacit y and assigned t he conclusions “ significant evident iary weight .” See -4- Transcript at 20. The ALJ did so because t he physicians provided det ailed explanat ions for t heir conclusions, which he found t o be consist ent wit h t he record as a whole. The ALJ is required t o assess t he claimant ’ s residual funct ional capacit y, which is a det erminat ion of “ t he most a person can do despit e t hat person’ s limit at ions.” See Brown v. Barnhart , 390 F.3d 535, 538-39 (8t h Cir. 2004). The assessment is made using all of t he relevant evidence in t he record, but t he assessment must be support ed by some medical evidence. See Wildman v. Ast rue, 596 F.3d 959 (8t h Cir. 2010). The ALJ assessed Foust ’ s residual funct ional capacit y and found t hat he is capable of performing light , semi-skilled work. 2 The quest ion for t he Court is whet her subst ant ial evidence on t he record as a whole support s t hat finding. Alt hough Foust bears t he burden of proving his residual funct ional capacit y, which is admit t edly an administ rat ive det erminat ion reserved for t he ALJ, see Cox v. Ast rue, 495 F.3d 614 (8t h Cir. 2007), t here must be some medical evidence t o support t he ALJ’ s finding. On t he record now before 2 Specifically, t he ALJ found t he following: ... Due t o ort hopaedic issues, [Foust ] would be limit ed t o lift ing-carrying up t o a maximum of 20 pounds occasionally and 10 pounds frequent ly. He has t he abilit y t o st and and/ or walk a t ot al of no more t han six (6) hours in an eight -hour workday. He would have t he abilit y t o sit for up t o six (6) hours in an eight -hour workday and operat e hand/ foot cont rols for pushing-pulling wit hin est ablished lift ing-carrying rest rict ions. He would be limit ed t o only occasional st ooping or bending and he should avoid crouching. [Foust ’ s] nonexert ional[] pain sympt oms would affect t he abilit y t o maint ain ment al focus and concent rat ion t o t he ext ent t hat he would be limit ed t o work where int erpersonal cont act is rout ine but superficial and t he complexit y of t he t asks are learned by experience wit h several variables. He would have t he abilit y t o use individual j udgment wit hin limit s and any supervision required would be lit t le for rout ine j ob t asks but det ailed for non-rout ine t asks. [Foot not e omit t ed]. See Transcript at 14. -5- t he Court , it cannot be said t hat t he assessment of Foust ’ s residual funct ional capacit y is support ed by some medical evidence. First , alt hough a t reat ing physician’ s opinion can be discount ed, see Choat e v. Barnhart , 457 F.3d 865 (8t h Cir. 2006), t he ALJ must give good reasons for doing so. In t his inst ance, t he reasons t he ALJ gave for declining t o assign Siddiqui’ s let t er/ checklist more t han limit ed evident iary weight are suspect . The ALJ discount ed t he let t er/ checklist , in part , because Foust did not complain of t horacic pain prior t o February of 2012. Alt hough it is t rue t hat Foust complained primarily of pain in his lower back, Siddiqui’ s progress not es reflect t hat Foust complained of pain in his “ mid back” as early as July 22, 2010, see Transcript at 254, and Siddiqui diagnosed, int er alia, t horacic disc displacement and t horacic spine pain at t hat t ime. The ALJ also discount ed t he let t er/ checklist because t here is no evidence showing “ a diagnosis of t horacic disc prot rusion at any t ime prior t o February [of] 2012.” See Transcript at 21. The ALJ is correct in so not ing, but t he t est ing done prior t o February of 2012 was primarily of Foust ’ s lumbar region and not of his t horacic region. See Transcript at 187-188. Second, t he reasons t he ALJ gave for assigning only limit ed evident iary weight t o Subramanium’ s findings and conclusions are also suspect . The ALJ discount ed t he findings and conclusions, in part , because t hey were offered in January of 2011, or early in Foust ’ s t reat ment and wit hin approximat ely six mont hs of his alleged onset dat e. The same reason, t hough, is equally applicable t o Payne’ s conclusion t hat Foust can perform light work, a conclusion t he ALJ gave “ significant evident iary weight .” See Transcript at -6- 20. Payne, a reviewing physician, offered his conclusion in March of 2011, or t wo mont hs aft er Subramanium’ s findings and conclusions but st ill early in Foust ’ s t reat ment and wit hin approximat ely eight mont hs of his alleged onset dat e. The ALJ also discount ed Subramanium’ s findings and conclusions because t he cont inued medical t reat ment Foust received, aft er January of 2011, result ed in “ significant levels of improvement in pain and overall funct ional capacit ies.” See Transcript at 22. The ALJ failed, t hough, t o offer any support for his conclusion, and t he record is inconclusive as t o whet her Foust showed significant levels of improvement aft er January of 2011. Siddiqui’ s progress not es for t he period from February of 2011 t hrough July of 2012 reflect t hat Foust ’ s pain was manageable at t imes wit h medicat ion and t reat ment , see Transcript at 362,375, 391, 397, 403, 418, 423, but was not manageable at ot her t imes, see Transcript at 231, 352, 409, 428, 439. Third, assuming t he ALJ’ s reasons for discount ing Siddiqui’ s let t er/ checklist and Subramanium’ s findings and conclusions are not suspect , t here is lit t le medical evidence t o support t he ALJ’ s assessment of Foust ’ s residual funct ional capacit y. The ALJ made t he assessment solely upon his int erpret at ion of Siddiqui’ s progress not es and t he conclusions of t he st at e agency reviewing physicians. Wit h respect t o t he former, it appears t hat t he ALJ impermissibly drew his own inferences about t he severit y of Foust ’ s pain from t he progress not es. See Shont os v. Barnhart , 328 F.3d 418 (8t h Cir. 2003) (ALJ cannot draw own inferences from records). Moreover, t he ALJ’ s int erpret at ion of t he progress not es is quest ionable. For inst ance, he not ed t hat Foust ’ s pain improved wit h -7- medicat ions, inj ect ions, or “ ot her conservat ive pain management measures.” See Transcript at 20. The Court is not convinced t hat hydrocodone, st eroid inj ect ions, and nerve blocking procedures are “ conservat ive pain management measures.” Wit h respect t o t he conclusions of t he st at e agency reviewing physicians, t heir conclusions may be ent it led t o some weight , but t he Court is not persuaded t hat t heir conclusions are ent it led t o t he “ significant evident iary weight ” t he ALJ gave t hem. See Transcript at 20. He represent ed t hat t he physicians provided “ det ailed explanat ions and bases for t heir decisions,” see Transcript at 20, but Payne’ s explanat ion and bases for his conclusion were minimal, see Transcript at 224, and Keit h offered no explanat ion or bases for affirming Payne’ s conclusion, see Transcript at 250. It is also not clear how t heir conclusions are “ consist ent wit h t he record as a whole,” see Transcript at 20, as t he ALJ found. It is for t he foregoing reasons t hat subst ant ial evidence on t he record as a whole does not support t he ALJ’ s assessment of Foust ’ s residual funct ional capacit y. A remand is t herefore necessary. Upon remand, t he ALJ shall re-assess Foust ’ s residual funct ional capacit y. As a part of doing so, t he ALJ shall re-evaluat e t he medical evidence and, if necessary, send Foust for anot her consult at ive examinat ion. The Commissioner’ s decision is reversed, and t his case is remanded. The remand in t his case is a “ sent ence four” remand as t hat phrase is defined in 42 U.S.C. 405(g) and Melkonyan v. Sullivan, 501 U.S. 89 (1991). Judgment will be ent ered for Foust . -8- IT IS SO ORDERED t his 28t h day of July, 2015. UNITED STATES MAGISTRATE JUDGE -9-
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