Lovell v. Social Security Administration, No. 1:2016cv00044 - Document 15 (E.D. Ark. 2017)

Court Description: MEMORANDUM OPINION AND ORDER reversing the Commissioner's decision and remanding this case. The remand 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). Judgment will be entered for Lovell. Signed by Magistrate Judge Patricia S. Harris on 1/26/2017. (ljb)
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Lovell v. Social Security Administration Doc. 15 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS NORTHERN DIVISION ARLENE L. LOVELL v. PLAINTIFF NO. 1:16-cv-00044 PSH CAROLYN W. COLVIN, Act ing Commissioner of t he Social Securit y Administ rat ion DEFENDANT MEMORANDUM OPINION AND ORDER Plaint iff Arlene L. Lovell (“ Lovell” ) commenced t he case at bar by filing a complaint pursuant t o 42 U.S.C. 405(g). In t he complaint , she challenged t he final decision of t he Act ing Commissioner of t he Social Securit y Administ rat ion (“ Commissioner” ), a decision based upon findings made by an Administ rat ive Law Judge (“ ALJ” ). Lovell 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 It is Lovell’ s posit ion t hat her residual funct ional capacit y was not properly assessed. She maint ains t hat a medical assessment of her abilit y t o do workrelat ed act ivit ies prepared by Dr. Havi Goyal, M.D., (“ Goyal” ) and Ant hony Kelly, P.A., (“ Kelly” ) was erroneously discount ed. 1 The quest ion for t he Court is whet her t he ALJ’ s findings are support ed by subst ant ial evidence on t he record as a whole. “ 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 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). If a t reat ing physician offers an opinion, it should be given cont rolling weight if it is “ well-support ed by medically accept able clinical and laborat ory diagnost ic t echniques” and is not inconsist ent wit h t he ot her subst ant ial evidence. See Choat e v. Barnhart , 457 F.3d 865, 869 (8t h Cir. 2006) (int ernal quot at ions omit t ed). The ALJ may discount t he opinion if ot her medical assessment s are support ed by bet t er or more t horough medical evidence or where a t reat ing physician renders inconsist ent opinions. See Id. A summary of t he evidence relevant t o Lovell’ s physical limit at ions reflect s t hat in April of 2010, she was working as a cert if ied nursing assist ant when she inj ured her back. See Transcript at 44, 320. Over t he course of t he next t hree days, she began experiencing pain and st iffness in her back, but t ocks, and legs. She sought medical at t ent ion for her inj ury, and Kelly observed t he following: “ [Lovell] has soft t issue t enderness at L4-5. [Deep t endon reflexes] are int act . She is neurovascularly int act dist ally. [She] has slight decrease in range of mot ion, and muscle spasm is evident . [She] was able t o get up on t he exam t able. No labs or x-rays t oday. [She] is given a Toradol shot during t he appoint ment 60mg. IM.” See Transcript at 320. A lower back st rain and muscle spasm were diagnosed. She was prescribed medicat ion and wit hheld from work. -2- Goyal and Kelly subsequent ly saw Lovell on t hirt een occasions over t he course of t he next t hree mont hs. See Transcript at 349 (05/ 02/ 2010), 348 (05/ 05/ 2010), 347 (05/ 08/ 2010), 346 (05/ 15/ 2010), 345 (05/ 16/ 2010), 344 (05/ 19/ 2010), 343 (05/ 26/ 2010), 342 (06/ 01/ 2010), 341 (06/ 24/ 2010), 340 (07/ 06/ 2010), 339 (07/ 15/ 2010), 338 (07/ 16/ 2010), 337 (08/ 16/ 2010). The progress not es from t he examinat ions reveal t hat Lovell cont inued t o experience pain, but t rigger point inj ect ions and medicat ion help reduce t he severit y of her pain. A May 10, 2010, x-ray revealed t he following: “ The spine alignment is anat omic. There is mild dis[c] space narrowing at t he L5-S1 level, as well as in t he lower t horacic spine. The vert ebral body height s are well maint ained wit h small ost eophyt es not ed. The adj acent bony and soft t issue st ruct ures are unremarkable.” See Transcript at 319. No acut e abnormalit ies were observed, but mild degenerat ive changes t o her lumbar spine were observed. She cont inued t o be diagnosed wit h lower back pain and muscle spasm. A December 23, 2010, MRI revealed a “ broad-based” disc prot rusion and “ [m]ild facet art hropat hy at L4-L5 and “ diffuse” disc bulging at L3-L4 and T12-L1 t hat likely causes no more t han mild st enosis. See Transcript at 279. Beginning in June of 2011 and cont inuing t hrough November of 2011, Goyal and Kelly saw Lovell again on t en occasions for her back pain. See Transcript at 336 (06/ 28/ 2011), 335 (07/ 18/ 2011), 334 (08/ 05/ 2011), 333 (08/ 15/ 2011), 332 (09/ 01/ 2011), 331 (09/ 16/ 2011), 330 (10/ 13/ 2011), 329 (10/ 27/ 2011), 328 (11/ 10/ 2011), 327 (11/ 23/ 2011). At t he init ial examinat ion, Goyal and Kelly’ s findings and observat ions were as follows: -3- ... [Lovell] present s t o clinic for a follow up for evaluat ion of a workers compensat ion inj ury. [She] has lower back pain wit h significant pain in her but t ocks. [She] also has pain in her mid back and upper shoulders. [She] feels t hat her pain level is 6 out of 10 t oday. [Lovell] has been put under a great deal of st rain wit h her lost car and financial pressure of t his case. This has been causing maj or depression. St ill await ing t o get approval of case from [worker’ s compensat ion]. ... Neck-soft t issue post erior at C5-C7. Pain wit h ext ension and flexion. Slight decreased [m]uscle st rengt h [bilat erally]. [Lovell] has soft t issue t enderness L4-L5 [bilat erally]. Pain wit h st raight leg [raises]. Muscle st rengt h is 60%of normal. MRI shows mult iple [herniat ed nucleus pulposus] lumber spine [t ]rigger point s [t imes t en]. See Transcript at 336. Goyal and Kelly diagnosed low back pain, insomnia, muscle spasm, neck pain, and depression. Medicat ion was prescribed for Lovell’ s pain. The progress not es from Goyal and Kelley’ s subsequent examinat ions of Lovell were largely consist ent in t he following respect : Lovell cont inued t o experience pain in her back and but t ocks, and t he only relief she obt ained was t hrough t rigger point inj ect ions. On May 2, 2012, Goyal and Kelly prepared a medical assessment of Lovell’ s abilit y t o do work-relat ed act ivit ies. See Transcript at 281-283. Goyal and Kelly represent ed, in part , t hat Lovell’ s impairment s give rise t o t he following limit at ions: 1) she cannot lift any amount of weight frequent ly and can lift no more t han five pounds occasionally; 2) she can walk for a t ot al of one hour a day but can only walk for fift een minut es wit hout int errupt ion; and 3) alt hough she can sit for a t ot al of eight hours a day, she can only sit for fift een minut es wit hout int errupt ion. Goyal and Kelly represent ed t hat Lovell’ s impairment s prevent her from, in part , climbing, st ooping, and pushing/ pulling. -4- On April 21, 2013, Dr. Jonat han Schwart z, M.D., (“ Schwart z” ) saw Lovell for a consult at ive physical evaluat ion. See Transcript at 285-289. He not ed her complaint s of low back and j oint pain and list ed her medicat ions as “ Hydrocodone, Ibuprofen, Gabapent in, and Carisoprodol.” See Transcript at 286. Wit h respect t o her act ivit ies of daily living, he observed t he following: [Lovell] is able t o dress herself but will somet imes get help wit h her socks. She is able t o do her own hygiene but will somet imes get help wit h her hair. She does “ very lit t le” cooking and dishes. She does not do any vacuuming, mopping, or yard work. She goes shopping. She has a driver’ s license but does not drive due t o leg spasms. She denies any hobbies. See Transcript at 286. Schwart z examined Lovell and observed, in part , t hat she was able t o walk wit hout assist ance or difficult y and could sit comfort ably. She was unable, t hough, t o lie on t he examinat ion t able because of her back pain, and it prevent ed him from assessing her range of mot ion in her hips and knee. He observed t hat she had a decreased range of mot ion in t he lumbar port ion of her spine, right knee swelling, and crepit us in her knees bilat erally. He diagnosed low back pain likely secondary t o degenerat ive disc disease, and he could not rule out radiculopat hy. He also diagnosed j oint pain likely secondary t o t endonit is and degenerat ive j oint disease. Schwart z opined t hat Lovell was capable of lift ing and carrying up t o fift y pounds occasionally and t went yfive pounds frequent ly, st anding and walking for up t o six hours in a day, and sit t ing for up t o six hours in a day. Alt hough he was unable t o assess all post ural limit at ions, he opined t hat she could only occasionally st oop. -5- On April 29, 2013, Dr. Keit h Whit t en, M.D., (“ Whit t en” ) saw Lovell for a consult at ive psychiat ric evaluat ion. See Transcript at 285-289. He observed, in part , t hat she appeared t o be in pain, frequent ly shift ing and changing posit ions. When she sat , she pressed down on t he arm of her chair. Wit h respect t o her act ivit ies of daily living, he observed t he following: Current ly, [Lovell] lives in a house wit h her boyfriend. She has been t here for t hree years. She is able t o bat he and dress herself but needs help wit h her shoes. Somet imes it is hard t o get on her underwear. Her boyfriend does most of t he housework. Her daught er helps out . She cannot bend past her knees. She cannot go camping anymore. She has t o t ake a nap in t he aft ernoon. She lead a dull, boring life. She prepares meals wit h t he microwave. She walks around t he yard for exercise. She likes t o be out side or she get s depressed. No Facebook, no comput er. See Transcript at 293. Whit t en examined Lovell and observed, in part , t hat her gait was slow, and she moved painfully. His diagnoses included a pain disorder, and he opined, in part , t hat her chronic pain and physical limit at ions cont ribut e t o some anxiet y and depression. On July 24, 2013, Dr. Harpreet Johl, M.D., (“ Johl” ) saw Lovell for her complaint s of cont inued back pain. See Transcript at 300. He examined her and found, in part , t he following: ... BACK: examinat ion of t he LS spine, t here is no swelling, no bruising, no broken skin. Forward bending t est no scoliosis is seen. There is no t enderness on palpat ion of t he lumbosacral spine. No sacroiliac j oint t enderness not ed. St raight leg raising t est is negat ive bilat erally. EXTREMITIES: no pedal edema. Gait is wit hin normal limit s. -6- See Transcript at 300. His diagnoses included chronic low back pain, but he prescribed no medicat ion. On March 10, 2015, or sixt een days before t he ALJ’ s decision denying Lovell’ s applicat ions for disabilit y insurance benefit s and supplement al securit y income payment s, Lovell was seen by Dr. Robert Baker, M.D., (“ Baker” ) for a new pat ient consult at ion. See Transcript at 358-361. 2 Baker recorded Lovell’ s complaint s of pain and not ed t hat she charact erized her low back pain as an “ aching, t hrobbing, st abbing, cramping, and t ingling” pain t hat “ radiat es t o bilat eral lower ext remit ies.” See Transcript at 358. She denied muscle cramps, loss of muscle bulk, j oint swelling, art hrit is, limit at ion of j oint movement , muscle pain, or t enderness, but did report “ leg weakness and gait unst eadiness.” See Transcript at 359. Baker examined Lovell and made, in part , t he following observat ions: Joint s-Hips/ SI Joint : Palpat ion of bilat eral sacroiliac j oint s reproduced pain. Musculoskelet al: Gait and st at ion ant algic. Normal lumbar lordosis and normal t horacic kyphosis. No [scoliosis] or abnormal t horacic kyphosis is not ed. Palpat ion of lumbar facet j oint s at L3-4, L4-5, and L5-S1 level reproduced lower back pain. Hyperext ension at lumbar spine reproduced lower back pain. St ooping 20-30 degrees relief pain. Bilat eral facet s loading maneuver by lat eral flexion/ bending reproduced pain. Bilat eral lat eral rot at ion also cause pain. Bilat eral st raight leg raise t est posit ive. 2 Baker’ s not es from his new pat ient consult at ion wit h Lovell were not present ed t o t he ALJ for his considerat ion. Baker’ s not es, t hough, were subsequent ly made a part of t he record and considered by t he Appeals Council when it considered Lovell’ s request for review. See Transcript at 4. -7- See Transcript at 359. Baker diagnosed lumbago, chronic pain syndrome, sciat ica, lumbosacral spondylosis wit hout myelopat hy, lumbar st enosis, and degenerat ive t horacic/ t horacolumbar int ervert ebral disc. He advised Lovell t o maint ain her normal act ivit es but advised against bed rest . Because she had “ failed conservat ive t reat ment ,” see Transcript at 360, he largely recommended st eroid inj ect ions. Baker saw Lovell for pain management on at least t wo ot her occasions. See Transcript at 363-365 (04/ 16/ 2015), 366-368 (05/ 12/ 2015). The progress not es from t he examinat ions are unremarkable and simply reflect t hat she was t reat ed for her pain. Lovell’ s medical records were reviewed by st at e agency medical professionals. See Transcript at 87-98, 113-124. In short , t he professionals opined t hat she was capable of performing light , unskilled work. Lovell and her boyfriend complet ed a series of document s in connect ion wit h her applicat ions. See Transcript at 228-236, 237-248, 249-257. In t he document s, she represent ed t hat she was born on November 2, 1962, and became disabled and unable t o work on June 23, 2012. See Transcript at 87. She represent ed t hat her post ural limit at ions include difficult y lift ing, st anding, walking, and sit t ing. Lovell and her boyfriend represent ed t hat she has difficult y at t ending t o her personal care, preparing meals, and doing more t han minimal work around t he house. She described a t ypical day as involving t he following: “ I get up very st iff and hurt ing from shoulders t o feet . I have a cup of coffee and wat ch morning news. I t ake a shower and get dressed [and] t ake my pain pill. [Then, I] sit down.” See Transcript at 250. -8- The record cont ains a summary of Lovell’ s FICA earnings. See Transcript at 206. The summary reflect s t hat she has a good work hist ory, having had regular and consist ent earnings from a number of years. Lovell t est ified during t he administ rat ive hearing. See Transcript at 44-60. She has not worked since t he April of 2010 accident in which she inj ured her back. Her pain prevent s her from driving an aut omobile and prevent s her from walking more t han t wo cit y blocks at one t ime. She st ays at home most of t he day and requires assist ance in at t ending t o her personal care. Lovell can perform some household chores, but her daught er helps wit h t he bulk of t he chores. Medicat ion and inj ect ions help relieve her pain, but t he pain soon ret urns. Changing posit ions also helps relieve her pain, but she cannot st and, walk, or sit for any subst ant ial lengt h of t ime. She has difficult y lift ing and cannot lift more t han approximat ely five pounds at one t ime. The ALJ found at st ep t wo of t he sequent ial evaluat ion process t hat Lovell’ s severe impairment s include degenerat ive disc disease, a pain disorder, and crepit us in her knees. The ALJ assessed Lovell’ s residual funct ional capacit y and found t hat she can perform sedent ary work, alt hough she has t he following addit ional limit at ions caused by her physical impairment s: ... [Lovell] can lift and carry up t o 10 pounds occasionally, sit for six hours in an eight -hour workday, st and and/ or walk t wo hours in an eight -hour workday and occasionally st oop, crouch, bend, kneel, crawl, and balance. ... In addit ion, [she] possess t he skills ident ified by t he vocat ional expert obt ained from her past relevant work as a head cook. -9- See Transcript at 19. In making t he assessment , t he ALJ observed t he following wit h respect t o t he severit y of Lovell’ s pain: [Lovell] has not received t he t ype of t reat ment one t ypically associat es wit h a complet ely disabled individual. She has not required any repeat ed hospit alizat ions of an ext ended durat ion or surgeries. Neit her has she needed frequent ER visit s due t o exacerbat ions. X-rays and MRIs showed no acut e findings. [She] t est ified t hat she had not had any surgeries since she was a child. Dr. Schwart z opined [Lovell] could perform less t han medium work. July 2013 not es show [Lovell] had a normal back exam and t hat her gait was wit hin normal limit s. [She] does not require an assist ive device t o ambulat e. ... In addit ion, [she] and her boyfriend have described daily act ivit ies t hat are not limit ed t o t he ext ent one would expect , given t he complaint s of disabling sympt oms and limit at ions. ... See Transcript at 23. The ALJ assigned some weight t o t he opinions of Whit t en, Schwart z, and t he st at e agency medical professionals but assigned lit t le weight t o t he opinions offered by Goyal and Kelly. The ALJ assigned lit t le weight t o Goyal and Kelly’ s opinions because t heir opinions were “ inconsist ent wit h t he record as a whole” for t he following reasons: ... First , Mr. Kelly is not an accept able medical source for Social Securit y purposes. There are no examinat ion findings such as range of mot ion or st raight -leg-raise t est ing t o accompany t he complet ed form. The lack of ongoing medical t reat ment also suggest s t hat [Lovell’ s] back pain was not as severe as Mr. Kelly and Dr. Goyal indicat ed. A more recent consult at ive physical exam showed [Lovell] could perform less t han medium work. Finally, July 2013 not es from [her] most recent office visit show t hat she report ed her back pain did not radiat e. A back exam was normal and a st raight -leg raise t est was negat ive. There was no pedal edema and her gait was wit hin normal limit s. ... -10- See Transcript at 24. The ALJ found at st ep four t hat Lovell cannot ret urn t o her past relevant work but found at st ep five t hat t here is ot her work she can perform. Lovell challenges t he ALJ’ s t reat ment of t he opinions offered by Goyal and Kelly, t he former being a t reat ing physician. The ALJ’ s decision t o accord lit t le weight t o Goyal’ s opinions is not somet hing t he Court t akes light ly. A t reat ing physician like Goyal is “ usually more familiar wit h a claimant ’ s medical condit ion t han are ot her physicians ...” See Thomas v. Sullivan, 928 F.2d 255, 259 n.3 (8t h Cir. 1991) [int ernal quot at ion omit t ed]. On t he record now before t he Court , it cannot be said t hat subst ant ial evidence on t he record as a whole support s t he weight given Goyal and Kelly’ s opinions. The Court so finds for t he following reasons. First , t he ALJ discount ed Goyal and Kelly’ s opinions because Kelly is not an “ accept able medical source.” Kelly is a physician’ s assist ant and, as such, is not an “ accept able medical source.” As Lovell correct ly point s out , t hough, t he opinions were made by bot h Goyal and Kelly, t he former clearly being an “ accept able medical source.” The opinions may t herefore be properly deemed t o be fully Goyal’ s opinions. Second, t he ALJ discount ed Goyal and Kelly’ s opinions because t here were no “ examinat ion findings such as range of mot ion or st raight -leg-raise t est ing t o accompany t he complet ed form.” Their opinions, t hough, were based upon t he result s of an MRI and t he findings and observat ions t hey made during t heir approximat ely t went y-t hree examinat ions of Lovell bet ween April 30, 2010, and November 23, 2011, examinat ions t hat included st raight -leg-raise t est ing. -11- Third, t he ALJ discount ed Goyal and Kelly’ s opinions because a lack of ongoing medical t reat ment suggest s t hat Lovell’ s back pain is not as severe as Goyal and Kelly believe. Wit hout quest ion, t here are gaps in t he t reat ment record. The gaps do not necessarily undermine Goyal and Kelly’ s opinions, t hough, as Goyal and Kelly were offering t heir opinions based upon t heir own t est ing and examinat ion of Lovell, not on t he basis of ot her physician’ s findings or t he record as a whole. Fourt h, t he ALJ discount ed Goyal and Kelly’ s opinions because t he opinions were inconsist ent wit h t he opinions offered by Schwart z, a consult ing physician. Clearly, t he ALJ can give great er weight t o t he opinions of a consult ing physician t han t he opinions of a t reat ing physician. See Anderson v. Barnhart , 344 F.3d 809 (8t h Cir.2003). The consult ing physician’ s opinions, like t he t reat ing physician’ s opinions, must be wellsupport ed by medically accept able clinical and laborat ory diagnost ic t echniques. It appears t hat Schwart z did no new t est ing but simply relied upon much of t he same t est ing relied upon by Goyal and Kelly. Schwart z simply reached a different conclusion t han Goyal and Kelly. The record does not cont ain an adequat e explanat ion for why Schwart z’ s opinions were credit ed, and Goyal and Kelly’ s opinions discount ed, when t hey all relied upon much of t he same t est ing. The consult ing physician’ s opinions must also not be inconsist ent wit h ot her subst ant ial evidence. The Court has some concern about t he consist ency of Schwart z’ s opinions wit h t he ot her subst ant ial evidence. For inst ance, he opined t hat Lovell is capable of lift ing and carrying up t o fift y pounds occasionally and t went y-five pounds -12- frequent ly and st anding and walking for up t o six hours in a day. There is no support in t he record for such opinions. It is t rue t hat t he sit t ing limit at ions offered by Schwart z is largely consist ent wit h t he findings and observat ions made by Johl, but t he limit at ion is largely inconsist ent wit h t he findings made by Baker. Fift h, t he ALJ discount ed Goyal and Kelly’ s opinions because t he opinions were inconsist ent wit h t he findings and observat ions made by Johl, who found Lovell t o have a normal back and negat ive st raight -leg-raises. Johl, t hough, performed no t est ing, and t he Court has some concern about t he consist ency of his findings and observat ions wit h t he ot her subst ant ial evidence. For inst ance, his opinions are inconsist ent wit h t he findings and observat ions made by Baker. The opinion evidence in t his case is varied and paint s subst ant ially different pict ures of Lovell’ s abilit y t o perform work-relat ed act ivit ies. Alt hough it is t he ALJ’ s responsibilit y t o resolve conflict s among t he various opinions, see Bent ley v. Shalala, 52 F.3d 784 (8t h Cir. 1995), t he Court would benefit from t he ALJ re-evaluat ing t he various opinions. This need is part icularly great because t he ALJ never had an opport unit y t o consider Baker’ s findings and observat ions. 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 Lovell’ s residual funct ional capacit y. A remand is t herefore necessary. Upon remand, t he ALJ shall solicit Baker’ s opinions of Lovell’ s work-relat ed abilit ies, shall re-evaluat e all of t he compet ing opinions, and re-assess Lovell’ s residual funct ional capacit y. -13- 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 Lovell. IT IS SO ORDERED t his 26t h day of January, 2017. UNITED STATES MAGISTRATE JUDGE -14-