Ash v. Social Security Administration, No. 3:2017cv00016 - Document 12 (E.D. Ark. 2017)
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). Judgment will be entered for Ash. Signed by Magistrate Judge Patricia S. Harris on 7/11/2017. (ljb)
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Ash v. Social Security Administration Doc. 12 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION KAREN DENISE ASH PLAINTIFF v. NO. 3:17-cv-00016 PSH NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration DEFENDANT MEMORANDUM OPINION AND ORDER Plaint iff Karen Denise Ash (“ Ash” ) began t his case 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” ). Ash 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 Ash’ s cont ent ion t hat her residual funct ional capacit y was not properly assessed, and she offers t wo reasons why. She first maint ains t hat t he ALJ failed t o give proper weight t o t he opinions of Dr. Roger Cagle, M.D., (“ Cagle” ), Ash’ s t reat ing physician. Second, Ash maint ains t hat t he ALJ failed t o give proper weight t o t he opinions cont ained in a ment al diagnost ic evaluat ion and int ellect ual assessment performed by Dr. Dennis Vowell, Psy.D., (“ Vowell” ). Because it is unclear why t he ALJ weighed t he opinions as he did, t he Court finds t hat a remand is warrant ed. 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. Ash alleged in her applicat ions for disabilit y insurance benefit s and supplement al securit y income payment s t hat she became disabled beginning on June 26, 2010, alt hough she lat er amended her onset dat e t o June 6, 2012. She alleged t hat she became disabled as a result of impairment s t hat included chronic back pain; migraine headaches; ost eoart hrit is in her hands, feet , and ot her j oint s; depression; and an int ellect ual disabilit y. She ably summarized t he evidence in t he record, see Document 10 at CM/ ECF 2-14, and t he Commissioner did not challenge t he summary or ot herwise place it 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 several mat t ers germane t o t he issues raised in t he part ies’ briefs. 2 On November 18, 2010, Ash was seen by Vowell for a ment al diagnost ic evaluat ion and int ellect ual assessment in connect ion wit h a prior claim for benefit s. See Transcript at 504-510. Ash described her overall mood as depressed. She report ed being sad most days and described feelings of hopelessness and helplessness. She addit ionally report ed “ difficult y wit h reading comprehension.” See Transcript at 504. She report ed being previously diagnosed wit h a learning disabilit y and having t aken remedial classes in school. She also report ed a hist ory of chronic back pain and chronic headaches. Vowell not ed t hat Ash had no hist ory of ment al healt h t reat ment . Ash had never been prescribed medicat ion for her ment al healt h issues, and she had never been hospit alized for any such issues. She ident ified “ financial problems as an obst acle t o t reat ment .” See Transcript at 505. Vowell also recorded Ash’ s personal and employment hist ory. Ash report ed t hat she obt ained a high school diploma but was enrolled in resource classes beginning in element ary school for help wit h mat h and reading. She last worked in June of 2010 at a Family Dollar st ore where she served as an assist ant manager. She quit t he j ob because she was not allowed t ime off t o visit wit h her daught er. Ash report ed no difficult y int eract ing appropriat ely wit h her peers and supervisors. Vowell administ ered Wechsler Adult Int elligence Scale-Fourt h Edit ion (“ WAISIV” ) t est ing, and Ash’ s scores included a full scale IQ score of fift y-seven. The score placed her wit hin t he range of one mildly ment ally ret arded. Vowell believed Ash t o have put fort h her best effort and believed t he score t o be a valid assessment of her int ellect ual funct ioning. 3 Vowell diagnosed a dyst hymic disorder and mild ment al ret ardat ion. Wit h respect t o t he effect s of Ash’ s ment al impairment s on her adapt ive funct ioning, Vowell opined t he following: A. How do ment al impairment s int erfere wit h t his person’ s day t o day [a]dapt ive funct ioning? ... Claimant is capable of driving unfamiliar rout es but current ly does not have a vehicle. She is capable of shopping independent ly and manages her own finances. She is able t o complet e basic household chores and basic ADL’ s [i.e., act ivit ies of daily living]. B. Capacit y t o communicat e and int eract in a socially adequat e manner? ... Claimant appeared capable of adequat e and socially appropriat e communicat ion and int eract ion in t oday’ s session. C. Capacit y t o cope wit h t he t ypical ment al/ cognit ive demands of basic work-like t asks? The [c]laimant appeared t o sust ain a reasonable degree of cognit ive efficient ly and was able t o t rack and respond t o various kinds of quest ions and t asks wit hout remarkable slowing or dist ract ibilit y. D. Abilit y t o at t end and sust ain concent rat ion on basic t asks? As not ed in t he findings of t he ment al st at us exam, t he claimant displayed mild t o moderat e difficult y responding adequat ely t o basic assessment of at t ent ion and concent rat ion capacit y. E. Capacit y t o sust ain persist ence in complet ing t asks? Persist ence appeared adequat e t hroughout t he session. F. Capacit y t o complet e work-like t asks wit hin an accept able t ime frame? The claimant did not display remarkable psychomot or slowing. In t erms of ment al st at us t ype t asks, capacit y t o perform wit hin a basically accept able t ime frame was demonst rat ed. See Transcript at 508. 4 On January 15, 2014, Ash began seeing Cagle for complaint s t hat included low back pain and depression. See Transcript at 393-397. She report ed t hat she had not seen a physician in years and was t aking no medicat ion. A physical examinat ion revealed not hing remarkable. Cagle diagnosed a depressive disorder, anxiet y, insomnia, and irrit able bowel syndrome. He prescribed medicat ion for her impairment s. Ash t hereaft er saw Cagle on what appears t o have been t went y-four occasions. See Transcript at 398-400 (02/ 15/ 2014); 401-402 (04/ 09/ 2014); 403-404 (05/ 09/ 2014); 405-406 (06/ 12/ 2014); (11/ 12/ 2014); 407-409 (09/ 05/ 2014); 416-418 (12/ 15/ 2014); 419-421, 410-412 (10/ 06/ 2014); 413-415 433-435 (01/ 15/ 2015); 436-438 (02/ 13/ 2015); 439-441 (03/ 13/ 2015); 442-444 (04/ 14/ 2015); 486-488 (05/ 12/ 2015); 483-485 (05/ 27/ 2015); 480-482 (06/ 16/ 2015); 500-502 (07/ 16/ 2015); 497-499 (08/ 17/ 2015); 494-496 (09/ 18/ 2015); 490-493 (10/ 19/ 2015); 536-538 (11/ 13/ 2015); 2022 (05/ 16/ 2016); 17-19 (06/ 16/ 2016); 14-16 (07/ 15/ 2016); 11-13 (08/ 16/ 2016). The progress not es reflect t hat he cont inued her on medicat ion for her impairment s and t reat ed her for addit ional impairment s t hat included headaches, chest pain, lumbago/ low back pain, ost eoart hrit is in her hands, and pain in her knee. On January 18, 2016, Cagle signed a medical source st at ement -physical on behalf of Ash. See Transcript at 551-552. He opined, int er alia, t hat she could lift and carry t en pounds occasionally and less t han t en pounds frequent ly, could st and and walk for about four hours during an eight hour workday but could not st and and walk for more t han t hirt y minut es at one t ime, and could sit for about six hours during an eight hour workday but could not sit for more t han t wo hours at one t ime. He opined t hat she required frequent breaks and a sit / st and opt ion. 5 On January 18, 2016, Cagle also signed a medical source st at ement -ment al on behalf of Ash. See Transcript at 554-555. He opined t hat she had a number of marked limit at ions, e.g., in her abilit y t o underst and and remember det ailed inst ruct ions, in her abilit y t o carry out det ailed inst ruct ions, in her abilit y t o sust ain an ordinary rout ine wit hout special supervision, and in her abilit y t o complet e a normal work-day and work week wit hout int errupt ions from psychologically based sympt oms and t o perform at a consist ent pace wit hout an unreasonable number and lengt h of rest periods. Cagle also opined t hat Ash had a number of moderat e limit at ions. 2 He opined t hat her impairment s and/ or t reat ment would cause her t o be absent from work more t han t hree days each mont h. On November 1, 2016, Cagle signed a “ To Whom It May Concern” let t er on behalf of Ash. In t he let t er, he represent ed t hat “ ... [Ash] complains of increasing back pain t hat radiat es down in her hips. [She] has mult iple healt h issues and she is not physically or ment ally able t o work.” See Transcript at 9. On May 13, 2015, Ash sought t reat ment at Families, Inc., a ment al healt h facilit y. See Transcript at 478. The progress not e from t he visit cont ains minimal findings. It reflect s t hat Ashley Wit hrow, a licensed clinical social worker, diagnosed Ash wit h a recurrent , maj or depressive disorder and a generalized anxiet y disorder. During t he course of t reat ing Ash, Cagle referred Ash t o Comprehensive Pain Specialist s (“ CPS” ) for t reat ment of her back pain. See Transcript at 544. Ash first present ed t o CPS on Oct ober 28, 2015, at which t ime she report ed t he following: Cagle represented that Ash had moderate limitations in every area encompassed by the medical source statement mental, specifically, understanding and memory, sustaining concentration and persistence, social interaction, and adaptation. 2 6 ... She [complains of] pain when normal act ivit y doing chores and can’ t st and on her feet for very long. She had [an] x-ray about 2 mont hs ago at her [primary care physician’ s] office. She has had pain for several years t hat has progressively got t en worse. She has never had a MRI of her lumbar. She did [physical t herapy] for four weeks and didn’ t get much relief. She is current ly t aking Tramadol for pain and t his helps somewhat but doesn’ t cont rol it . ... See Transcript at 544. Amy Deat herage (“ Deat herage” ), a nurse pract it ioner, observed t hat Ash was experiencing headaches and had pain in her neck, shoulders, back, and knees. Deat herage observed t hat t he pain was exacerbat ed by lift ing and carrying heavy loads and by bending and st ooping, and t he pain int erfered wit h Ash’ s abilit y t o perform her daily chores. Deat herage did observe, t hough, t hat Ash had a normal range of mot ion in her ext remit ies. Deat herage diagnosed, int er alia, low back pain and prescribed medicat ion, ordered an MRI, and recommended lumbar facet inj ect ions. On November 3, 2015, Ash underwent an MRI of her lumbar spine. See Transcript at 529-534. The result s of t he MRI revealed mild disc desiccat ion at L3-L4, L4-L5, and L5-S1 but no disc herniat ion or spinal st enosis. On January 5, 2016, Ash was seen at CPS by Dr. Jeffrey Hall, M.D., (“ Hall” ). See Transcript at 540-543. He administ ered lumbar facet inj ect ions at L1, L2, and L3 and refilled her pain medicat ion. Ash was subsequent ly seen at CPS on what appears t o have been five occasions. See Transcript 557, 574-576 (01/ 19/ 2016); 559-560, 569-573 (02/ 04/ 2016); 586-590 (03/ 01/ 2016); 583-585 (04/ 12/ 2016); 580-582 (04/ 26/ 2016). The progress not es reflect t hat she received several addit ional rounds of inj ect ions and was cont inued on pain medicat ion. She event ually report ed some relief from her back pain as she report ed an improvement in her funct ioning and act ivit ies of daily living. 7 Ash’ s medical records were reviewed by st at e agency medical professionals. See Transcript at 70-82, 83-95, 105, 109. Wit h respect t o her physical limit at ions, t hey opined t hat she had no physical rest rict ions. Wit h respect t o her ment al limit at ions, t hey opined t hat she was capable of performing unskilled work. Ash complet ed a series of document s in connect ion wit h her applicat ions. See Transcript at 226-233, 240-241, 242-250, 252. In t he document s, she represent ed t hat she can at t end t o her personal care, prepare her own meals, and perform some household chores. She spends t ime wit h ot hers and enj oys “ skyping” wit h her daught er. Ash has difficult y, t hough, finishing what she st art s and has difficult y following spoken inst ruct ions. Maddie Akes (“ Akes” ), Ash’ s mot her, submit t ed a let t er on behalf of Ash. See Transcript at 303. In t he let t er, Akes represent ed t hat she assist s Ash wit h most of her daily act ivit ies. Akes represent ed t hat she does so because Ash has difficult y st anding for long periods of t ime. Akes addit ionally represent ed t hat Ash “ st ays most of her t ime in bed.” See Transcript at 303. Ash t est ified during t he administ rat ive hearing. See Transcript at 49-63. She was born on February 3, 1973, and was fort y-t hree years old at t he t ime of t he hearing. She has a high school educat ion. She lives by herself, can shop for groceries, and can drive an aut omobile. She occasionally socializes wit h her neighbor. Ash previously worked at a Family Dollar st ore but required help performing her j ob dut ies. She cont inues t o experience back and feet problems, and t he problems prevent her walking or sit t ing for more t han t hirt y minut es at one t ime. The problems also prevent her from working a j ob t hat would allow a sit / st and opt ion. 8 The ALJ found at st ep t wo t hat Ash has severe impairment s in t he form of “ lumbar degenerat ive disc disease, sacrococcygeal disorder, an affect ive disorder, and anxiet y.” See Transcript at 33. The ALJ assessed Ash’ s residual funct ional capacit y and found t he following: ... t he claimant has t he residual funct ional capacit y t o lift and carry 20 pounds occasionally and 10 pounds frequent ly. The claimant can st and or walk six hours in an eight -hour workday. The claimant can sit for six hours in an eight -hour workday. The claimant can push or pull 20 pounds occasionally and 10 pounds frequent ly. The claimant can underst and, remember, and carry out simple work inst ruct ions. The claimant can make j udgment s in simple work-relat ed sit uat ions. The claimant can respond appropriat ely wit h co-workers and supervisors, and minor changes in t he usual work rout ine. The claimant should not have t o int eract wit h t he general public. See Transcript at 34. In making t he foregoing findings, t he ALJ not ed t hat Cagle’ s opinions regarding Ash’ s physical limit at ions were “ consist ent wit h t he evidence of record” but only gave t he opinions “ some weight .” See Transcript at 37. Wit h respect t o Ash’ s ment al limit at ions, t he ALJ gave “ subst ant ial weight ” t o t he st at e agency medical professionals’ opinions. See Transcript at 37. The ALJ not ed t hat Cagle’ s opinions regarding Ash’ s ment al limit at ions were “ consist ent wit h t he evidence of record” but only gave t he opinions “ some weight .” See Transcript at 37. The ALJ recit ed Vowell’ s opinions regarding Ash’ s ment al limit at ions but does not appear t o have given t he opinions any weight . The ALJ found at st ep four t hat Ash cannot ret urn t o her past work but found at st ep five t hat t here is ot her work she can perform. Ash first maint ains t hat t he ALJ failed t o give proper weight t o Cagle’ s opinions. Ash so maint ains, in part , because t he ALJ found t hat alt hough t he opinions were “ consist ent wit h t he evidence of record,” t he ALJ only gave t hem “ some weight .” 9 “ 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)]. It is undeniable t hat Cagle was a t reat ing physician. His opinions regarding Ash’ s physical limit at ions were t herefore ent it led t o considerable, if not cont rolling, weight if 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 found t hat Cagle’ s opinions were “ consist ent wit h t he evidence of record,” which suggest s t hat t he opinions would be given considerable weight . The ALJ did not give t he opinions such weight . Inst ead, t he ALJ only gave t he opinions “ some weight ,” which indicat es t hat he discount ed t he opinions. The ALJ failed, t hough, t o provide a reason for discount ing t he opinions. The Commissioner offers several reasons why t he ALJ may have discount ed Cagle’ s opinions regarding Ash’ s physical limit at ions, e.g., t he opinions were conclusory and inconsist ent wit h t he evidence. The t ask of assigning weight t o medical opinions, and t he t ask of offering reasons for discount ing t he opinions, is for t he ALJ. Given t he confusion creat ed by t he ALJ’ s conflict ing findings regarding Ash’ s physical limit at ions, a remand is warrant ed so t hat t he ALJ can explain his reasons for weighing t he opinions as he did and, if necessary, send Ash for a consult at ive physical examinat ion. 10 Ash also maint ains t hat proper weight was not given t o t he opinions of her ment al limit at ions, specifically, t hat proper weight was not given t o Cagle’ s opinions in t he medical source st at ement -ment al and t o Vowell’ s opinions in t he ment al diagnost ic evaluat ion and int ellect ual assessment . Ash’ s cont ent ion is not part icularly compelling wit h respect t o Vowell’ s opinions because t hey were offered approximat ely ninet een mont hs before t he amended onset dat e. The ALJ’ s t reat ment of Cagle’ s opinions, t hough, is suspect because t he ALJ failed t o give a reason for discount ing t hem. There is evidence t hat Ash has ment al impairment s, and t he limit at ions caused by t he impairment s may not be fully account ed for in t he assessment of her residual funct ional capacit y. Upon remand, t he ALJ shall re-evaluat e t he opinions of Ash’ s ment al limit at ions and, if necessary, send Ash for a consult at ive ment al examinat ion. Subst ant ial evidence on t he record as a whole t herefore does not support t he ALJ’ s assessment of Ash’ s residual funct ional capacit y. A remand is necessary. Upon remand, t he ALJ shall explain his reasons for weighing t he medical opinions as he did and, if necessary, send Ash for a consult at ive physical and ment al 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 Ash. IT IS SO ORDERED t his 11t h day of July, 2017. UNITED STATES MAGISTRATE JUDGE 11
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