Flemon v. Social Security Administration, No. 3:2016cv00342 - Document 16 (E.D. Ark. 2017)
Court Description: MEMORANDUM OPINION AND ORDER reversing and remanding this case as a "sentence four" remand. Judgment will be entered for Flemon. Signed by Magistrate Judge Patricia S. Harris on 7/24/2017. (jak)
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Flemon v. Social Security Administration Doc. 16 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION BARRY WAYNE FLEMON, JR. v. PLAINTIFF NO. 3:16-cv-00342 PSH NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration DEFENDANT MEMORANDUM OPINION AND ORDER Plaint iff Barry Wayne Flemon, Jr., (“ Flemon” ) began t his case by filing a complaint pursuant t o 42 U.S.C. 405(g). In t he pleading, he 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 t he findings of an Administ rat ive Law Judge (“ ALJ” ). Flemon 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 Flemon specifically maint ains t hat his residual funct ional capacit y was erroneously assessed and offers t wo reasons why. First , t he ALJ erred when he rej ect ed t he opinions of Dr. St ephen Woodruff, M.D., (“ Woodruff” ). Second, t he ALJ’ s credibilit y analysis was inadequat e because he did not engage in a det ailed credibilit y analysis, gave no considerat ion t o Flemon’ s work hist ory, and ignored medical evidence t hat was consist ent wit h Flemon’ s subj ect ive complaint s. 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). 1 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). In making t he assessment , t he ALJ is required t o consider t he medical opinions in t he record. See Wagner v. Ast rue, 499 F.3d 842 (8t h Cir. 2007). A t reat ing physician’ s medical opinions are given cont rolling weight if t hey are well-support ed by medically accept able clinical and laborat ory diagnost ic t echniques and are not inconsist ent wit h t he ot her subst ant ial evidence. See Choat e v. Barnhart , 457 F.3d 865 (8t h Cir. 2006). The ALJ may discount a t reat ing physician’ s medical opinions if ot her medical assessment s are support ed by bet t er or more t horough medical evidence or where t he t reat ing physician renders inconsist ent opinions t hat undermine t he credibilit y of his opinions. See Id. The ALJ must evaluat e t he claimant ’ s subj ect ive complaint s as a part of assessing his residual funct ional capacit y. See Pearsall v. Massanari, 274 F.3d 1211 (8t h Cir. 2001). The ALJ does so by considering all of t he evidence, including t he following: ... [t he] obj ect ive medical evidence, t he claimant ’ s work hist ory, and evidence relat ing t o t he fact ors set fort h in Polaski v. Heckler, 739 F.3d 1320, 1322 (8t h Cir. 1984): (i) t he claimant ’ s daily act ivit ies; (ii) t he durat ion, frequency, and int ensit y of t he claimant ’ s pain; (iii) precipit at ing and aggravat ing fact ors; (iv) t he dosage, effect iveness, and side effect s of medicat ion; and (v) t he claimant ’ s funct ional rest rict ions. ... An ALJ need not expressly cit e t he Polaski fact ors when ... [he] conduct s an analysis pursuant t o 20 C.F.R. 416.929 because t he regulat ion “ largely mirror[s] t he Polaski fact ors.” Schult z v. Ast rue, 479 F.3d 979, 983 (8t h Cir. 2007); see 20 C.F.R. 416.929(c)(3)(i)-(iv), (vii) (2011) ... See Vance v. Berryhill, 2017 WL 2743089, 4 (8t h Cir. June 27, 2017). 2 Flemon alleged in his applicat ion for disabilit y insurance benefit s t hat he became disabled beginning on Sept ember 12, 2014. He alleged t hat he became disabled as a result of impairment s t hat include cervical disc disease, bilat eral shoulder impingement syndrome, rot at or cuff t ear, ost eoart hrit is, rupt ure of t he left bicep t endons, and right shoulder rot at or cuff t endonit is. He ably summarized t he evidence in t he record, and t he Commissioner did not place t he summary in disput e. The Court accept s t he summary as a fair summat ion of t he evidence. The summary will not be reproduced, save t o not e mat t ers germane t o t he issues raised in t he part ies’ briefs. On Sept ember 5, 2013, or one year before t he alleged onset dat e, an MRI of Flemon’ s cervical spine was performed. The result s revealed t he following: “ mult ilevel degenerat ive changes which are worst on t he left at t he C4-C5 level where t here is severe left foraminal narrowing.” See Transcript at 555. On Oct ober 9, 2013, Flemon was seen for complaint s of neck pain by Dr. Robert Abraham, M.D., (“ Abraham” ). See Transcript at 552-554. Flemon report ed t hat t he pain began in his neck, radiat ed t o his left shoulder, went down t he post erior aspect of his left arm, and st opped at his elbow. He report ed t aking six Percocet s a day and muscle relaxers t o help ease t he pain. His hist ory was recorded, and it reflect s t he following: “ ... Flemon is a 45 year old elect rician t hat ret urns t o t he clinic t oday aft er undergoing an MRI of his cervical spine. He has previously had an ACDF [i.e., ant erior cervical discect omy and fusion] of C3-4, C5-6 in [December] of 2011. He also had a TDR [i.e., t ot al disc replacement ] in C6-7 done by Dr. Tonymon.” See Transcript at 552. Abraham’ s diagnoses included cervical radiculopat hy. Abraham cont inued Flemon on 3 medicat ion, counseled against st renuous act ivit y, and referred him for pain management . Flemon t hereaft er saw Dr. Mark Wendell, M.D., (“ Wendell” ) and Melanie New, APRN, (“ New” ) for pain management on what appears t o have been t went y-five occasions. See Transcript at 370-377 (01/ 13/ 2014), 378-379 (01/ 28/ 2014), 361-365 (02/ 10/ 2014), 517-521 (03/ 06/ 2014), 366-367 (03/ 11/ 2014), 509-513 (03/ 24/ 2014), 347-351 (05/ 05/ 2014), 352-353 (05/ 27/ 2014), 454-458 (06/ 25/ 2014), 421-422 (08/ 18/ 2014), 405-406 (08/ 26/ 2014), 428-429 (09/ 10/ 2014), 591-593 (12/ 01/ 2014), 626-627 (12/ 09/ 2014), 655 (12/ 20/ 2014), 705-706 (05/ 13/ 2015), 634-635 (06/ 02/ 2015), 711-712 (06/ 08/ 2015), 723-725 (08/ 06/ 2015), 636-637 (08/ 10/ 2015), 727-728 (08/ 24/ 2015), 728-731 (09/ 09/ 2015), 757-758 (09/ 28/ 2015), 747-750 (10/ 12/ 2015), 753-754 (12/ 29/ 2015). At t he init ial present at ion, Wendell’ s diagnoses included cervical disc degenerat ion. Wendell cont inued Flemon on medicat ion and began t reat ing him wit h st eroid inj ect ions. Flemon init ially report ed excellent result s from t he inj ect ions but lat er report ed t hat t hey were proving t o be less beneficial. An MRI of Flemon’ s cervical spine was performed at New’ s request on Sept ember 3, 2015. See Transcript at 639-640. The result s revealed, in part , t he following: “ [d]egenerat ive disc changes at C4-5 caused mild cent ral canal st enosis. Left uncovert ebral ost eophyt e causes moderat e left neuroforaminal narrowing.” Flemon ret urned t o Abraham on July 30, 2014. See Transcript at 443-446. Flemon report ed t remendous benefit from t he st eroid inj ect ions, but t he pain in his neck and left arm ret urned once t he effect of t he medicat ion subsided. Flemon report ed t hat his pain was exacerbat ed by act ivit y. He report ed t hat he was considering applying for 4 disabilit y. Abraham again diagnosed, int er alia, cervical radiculopat hy, cont inued Flemon on medicat ion, and cont inued t o recommend pain management . Flemon saw Woodruff bet ween 2013 and 2015 and appears t o have seen him on approximat ely eight occasions. See Transcript at 382-385 (11/ 12/ 2013), 522-527 (03/ 05/ 2014), 447-451 (07/ 22/ 2014), 443-446 (07/ 30/ 2014), 593-594 (12/ 03/ 2014), 655-657 (01/ 02/ 2015), 694-696 (04/ 01/ 2015), 742-747 (10/ 01/ 2015). At t he init ial present at ion, Flemon complained of a const ant burning in his neck and radiculopat hy in his left arm. Woodruff diagnosed cervical radiculopat hy and a “ post -surgical st at e,” see Transcript at 385, and prescribed a fent anyl t ransdermal pat ch. At subsequent present at ions, Flemon cont inued t o complain of pain in his neck and left arm. He also complained of pain in his right shoulder, chronic bursit is in his hips, and complicat ions associat ed wit h low iron. Woodruff cont inued t o diagnose cervical radiculopat hy and addit ionally diagnosed condit ions t hat include cervical disc degenerat ion, a bulging cervical disc, ost eoart hrit is, t rochant eric bursit is, and anemia. In t he July 22, 2014, progress not e, Woodruff opined t hat he did not believe Flemon was “ capable of working any ... occupat ion wit h t he cervical spine condit ion.” See Transcript at 447. In t he December 3, 2014, progress not e, Woodruff opined t hat Flemon was “ [u]nable t o work.” See Transcript at 594. On December 3, 2014, Woodruff prepared a medical source st at ement -physical on behalf of Flemon. See Transcript at 564-565. In t he st at ement , Woodruff represent ed t hat Flemon could lift and/ or carry less t han t en pounds frequent ly and occasionally but could st and and/ or walk and sit for a t ot al of eight hours. Woodruff represent ed t hat Flemon had a limit ed abilit y t o push and pull because of cervical radiculopat hy 5 wit h marked t ricep weakness and could only occasionally perform such t asks as reaching, handling, and fingering. On August 21, 2015, Woodruff aut hored a “ To Whom It May Concern” let t er on behalf of Flemon. In t he let t er, Woodruff represent ed t he following: Barry Flemon has been a pat ient at NEA Bapt ist clinic over a number of years. His primary problem is [c]ervical disc disease. He has had previous cervical [s]urgery wit h a fusion but cont inues t o have [s]ignificant pain in t he cervical region. Wit h radiat ion t o t he shoulders and t he arms. This has great ly rest rict ed his work as an elect rician and in fact he now cannot work in any capacit y. He has chronic severe pain requiring narcot ic use and he has [o]ngoing arm weakness as a result of t his process. This has been a problem in spit e of previous surgery. In my opinion he is t ot ally disabled wit h t his process. ... See Transcript at 629. 2 Flemon underwent ot her t est ing and sought ot her t reat ment during t he relevant period. A December 10, 2013, cervical myelogram revealed spinal st enosis wit h mild ant erior t hecal sac compression at C3-C4 and C4-C5. See Transcript at 389. A CT scan of his cervical spine performed t he same day revealed “ mult ilevel abnormalit ies wit h As a part of Flemon’s request for review, he submitted a second medical source statement physical from Woodruff. See Transcript at 20 21. In the March 1, 2016, statement, Woodruff represented, in part, that Flemon could stand and/or walk and sit for less than two hours in an eight hour workday and was unable to reach or handle. Woodruff opined that Flemon would need frequent, longer than usual breaks and would require a sit/stand option. Flemon also submitted a medical source statement mental from Woodruff. See Transcript at 23 24. In the March 1, 2016, statement, Woodruff represented that Flemon had several extreme limitations of function. Woodruff opined that Flemon was “not able to hold [a] full time job in his occupation at all.” See Transcript at 24. Flemon also submitted a second “To Whom It May Concern” letter from Woodruff. In the May 3, 2016, letter, Woodruff recounted Flemon’s impairments and opined that he was “unable to [w]ork at any occupation in his present condition” and was unlikely to “perform full time work of any sort in the future.” See Transcript at 9. The Appeal Council acknowledged receipt of the medical source statements and the “To Whom It May Concern” letter but gave them no consideration. The Appeals Council did so because the submissions were “about a later time” and did not “affect the decision about whether [Flemon] were disabled beginning on or before February, 19, 2016.” See Transcript at 2. 2 6 disc ost eophyt e on t he left at C4-C5 causing severe left foraminal narrowing.” See Transcript at 386. Flemon sought medical at t ent ion for his arm and shoulder pain on Oct ober 31, 2014. See Transcript at 586-591. An examinat ion showed some posit ive impingement and mild weakness, but he was observed t o have a full range of mot ion. A physician’ s assist ant also not ed t he following: “ [Flemon] st at es t hat [at ] his next visit he may be ready t o discuss left shoulder art hroscopy for rot at or cuff repair as he may be done hunt ing.” See Transcript at 590. Flemon saw Dr. Jason Brandt , M.D., (“ Brandt ” ) on December 15, 2014. See Transcript at 612-616. Brandt diagnosed, in part , a right rot at or cuff t ear and left shoulder impingement syndrome. Brandt recommended t hat Flemon undergo a right shoulder art hroscopic rot at or cuff repair. Brandt performed t he right shoulder art hroscopic rot at or cuff repair on January 15, 2015. See Transcript at 608-610. Flemon healed well following t he surgery, part icularly aft er he received a period of physical t herapy. See Transcript at 657-661, 662-666, 667-680, 684-694. By February 22, 2015, he was observed t o have a full range of mot ion in his right shoulder. See Transcript at 684. On April 23, 2015, Brandt performed art hroscopic surgery on Flemon’ s left shoulder. See Transcript at 631-634. Flemon healed well following t he surgery, see Transcript at 696-700, 706-710, and by July 24, 2015, he was observed t o have a full range of mot ion in his left shoulder. See Transcript at 713-717. On Sept ember 3, 2015, anot her MRI of Flemon’ s cervical spine was performed. The result s showed, in part , t he following: “ [d]egenerat ive disc changes at C4-5 7 caus[ing] mild cent ral canal st enosis” and “ [l]eft uncovert ebral ost eophyt e caus[ing] moderat e left neuroforaminal narrowing.” See Transcript at 555. The record cont ains a hist ory of Smit h’ s FICA earnings for t he years 1985 t hrough 2014. See Transcript at 200. The summary reflect s t hat he had subst ant ial earnings during t hat period, part icularly bet ween t he years 1996 and 2014. Flemon complet ed a series of document s in connect ion wit h his applicat ion for disabilit y insurance benefit s. See Transcript at 236-243, 244-245, 246-253, 284, 286. In t he document s, he represent ed t hat he worked as an elect rician from Oct ober of 1993 t hrough Sept ember of 2014. He experiences pain in his neck and left arm. He can st and/ walk and sit for approximat ely one hour before he begins t o experience pain, and t he pain is exacerbat ed by physical act ivit y. Flemon can at t end t o his own personal care, prepare his own meals, and perform some house and yard work. He can shop and does so once a week. His hobbies include wat ching t elevision, reading, and hunt ing, alt hough he no longer hunt s. His social act ivit ies include at t ending church once a week. Flemon t est ified during t he administ rat ive hearing. See Transcript at 98-110. He was fort y-eight years old at t he t ime. He complet ed high school and a five year apprent iceship. He lives wit h his wife and helps out around t he house. He has difficult y performing act ivit ies involving t he use of his shoulders and arms and was t old t o not lift more t han t en pounds at one t ime. He t akes Oxycodone and Risperdal for his pain. Alt hough Flemon can reach over his head, he begins t o experience pain when he lift s weight over his head or reaches over his head repeat edly. He worked as a j ourneyman elect rician for approximat ely t went y years and last worked in Sept ember of 2014. He st opped working because of t he pain in his neck. He does not believe he can work a j ob 8 requiring him t o st and/ walk or sit for six hours during a workday or a j ob requiring him t o use his arms and hands repeat edly. The ALJ found at st ep t wo t hat Flemon has severe impairment s in t he form of “ cervical disc disease; bilat eral shoulder impingement syndrome, rot at or cuff t ear, ost eoart hrit is; rupt ure of t he left biceps t endon; and right shoulder rot at or cuff t endonit is.” See Transcript at 83. The ALJ assessed Flemon’ s residual funct ional capacit y and found t hat he can perform sedent ary work “ except he can perform occasional overhead reaching bilat erally; occasional handling wit h t he non-dominant upper ext remit y; and occasional st ooping, crouching, crawling, and kneeling.” See Transcript at 84. In making t he foregoing findings, t he ALJ not ed Woodruff’ s December 3, 2014, medical source st at ement -physical and his August 21, 2015, “ To Whom It May Concern” let t er and accorded t he opinions cont ained in t hose document s t he following weight : ... While t he undersigned not es an opinion on whet her an individual is disabled goes t o an issue reserved t o t he Commissioner and t herefore cannot be given special significance, such opinion should st ill be considered in t he assessment of t he claimant ’ s residual funct ional capacit y ... The undersigned affords t he t reat ing physician’ s opinion part ial weight as it is support ed by t he claimant ’ s diagnosis of cervical disc disease, which result s in decreased range of mot ion and requires ongoing pain management . ... However, t he physician’ s opinion is inconsist ent wit h t he claimant ’ s report t hat he benefit s from pain medicat ion, including st eroid inj ect ions, as well as refraining from reaching overhead. ... See Transcript at 88. Flemon first maint ains t hat t he ALJ erred when he rej ect ed Woodruff’ s opinions. It is Flemon’ s posit ion t hat t he ALJ’ s reasons for discount ing t he opinions, i.e., t hey 9 were inconsist ent wit h Flemon’ s t est imony, are specious. Flemon maint ains inst ead t hat t he opinions are consist ent wit h t he record as a whole. “ In deciding whet her a claimant is disabled, t he ALJ considers medical opinions along wit h ‘ t he rest of t he relevant evidence’ in t he record.” See Wagner v. Ast rue, 499 F.3d at 848 [quot ing 20 C.F.R. 404.1527(b)]. “ [W]het her t he ALJ grant s a t reat ing physician’ s opinion[s] subst ant ial or lit t le weight , t he regulat ions ... provide t hat t he ALJ must ‘ always give good reasons’ for t he part icular weight given t o a t reat ing physician’ s evaluat ion.” See Singh v. Apfel, 222 F.3d 448, 452 (8t h Cir. 2000) [quot ing 20 C.F.R. 404. 1527(d)(2)]. Clearly, Woodruff was a t reat ing physician. His opinions regarding Flemon’ s physical limit at ions were t herefore ent it led t o great weight , assuming of course t hat t hey were well-support ed by medically accept able clinical and laborat ory diagnost ic t echniques and were not inconsist ent wit h t he ot her subst ant ial evidence. The ALJ did not discount Woodruff’ s opinions because t hey were not well-support ed by medically accept able clinical and laborat ory diagnost ic t echniques. In fact , t he ALJ specifically found t hat Woodruff’ s opinions were support ed by t he medical evidence, specifically, by evidence of Flemon’ s cervical disc disease and t he work-relat ed limit at ions it causes. The ALJ inst ead discount ed Woodruff’ s opinions because t hey were inconsist ent wit h t he ot her subst ant ial evidence. What ot her subst ant ial evidence did t he ALJ rely upon in discount ing t he opinions? The ALJ relied upon Flemon’ s self-report s t hat he benefit s from pain medicat ion, including st eroid inj ect ions, and by refraining from reaching overhead. Alt hough t he ALJ could cert ainly consider Flemon’ s self-report s, t he Court is not persuaded t hat t he self-report s, st anding alone, are adequat e ot her subst ant ial 10 evidence t o undermine Woodruff’ s opinions. In t hat regard, t he Court adopt s t he following represent at ions made by Flemon in his brief: ... while Flemon may well benefit from t reat ment , t his does not serve t o discredit ... Woodruff’ s opinion about [Flemon’ s] abilit y t o work; t o t he cont rary, as careful considerat ion of ... Woodruff’ s opinion would have shown, Flemon’ s medical records indicat e t hat his pain increased when he ret urned t o work, t hat t he relief he received from t he inj ect ions was only part ial and t hat he t hought t hey were no longer helping him, and t hat he believed his neck pain was worsening. See Docket Ent ry 10 at CM/ ECF 22. The Commissioner offers several addit ional reasons why t he ALJ could have discount ed Woodruff’ s opinions, e.g., Flemon cont inued t o work as an elect rician unt il Sept ember of 2014 and “ art hroscopic surgeries were successful and medicat ion cont rolled his pain,” see Docket Ent ry 15 at CM/ ECF 15. The t ask of assigning weight t o medical opinions, and t he t ask of offering reasons for discount ing t hose opinions, is for t he ALJ at t he administ rat ive level, not for t he Commissioner at t he j udicial level. It may be t hat Woodruff’ s opinions are event ually discount ed, but t he ALJ must offer good reasons for doing so and t he reasons must be support ed by subst ant ial evidence on t he record as a whole. A remand is t herefore warrant ed so t hat t he ALJ can re-evaluat e Woodruff’ s opinions. Flemon offers a second reason why t he ALJ findings are not support ed by subst ant ial evidence on t he record as a whole. Flemon maint ains t hat t he ALJ’ s credibilit y analysis was inadequat e because he did not engage in a det ailed credibilit y analysis, gave no considerat ion t o Flemon’ s work hist ory, and ignored medical evidence t hat was consist ent wit h Flemon’ s subj ect ive complaint s. The Court will not devot e much at t ent ion t o Flemon’ s assert ion, save t o not e t hat t he ALJ’ s credibilit y analysis 11 was minimal. Upon remand, t he ALJ shall re-evaluat e Flemon’ s credibilit y, giving specific considerat ion t o such fact ors as his except ional work hist ory. Subst ant ial evidence on t he record as a whole does not support t he ALJ’ s assessment of Flemon’ s residual funct ional capacit y. A remand is necessary. Upon remand, t he ALJ shall re-evaluat e Woodruff ’ s opinions and Flemon’ s credibilit y. 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 Flemon. IT IS SO ORDERED t his 24t h day of July, 2017. ________________________________________ UNITED STATES MAGISTRATE JUDGE 12
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