Fulkerson v. Social Security Administration, No. 3:2017cv00065 - Document 13 (E.D. Ark. 2018)
Court Description: MEMORANDUM OPINION AND ORDER finding that there is substantial evidence on the record as a whole to support the ALJ's findings. Fulkerson's complaint is dismissed, all requested relief is denied, and judgment will be entered for the Commissioner. Signed by Magistrate Judge Patricia S. Harris on 1/12/2018. (mcz)
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Fulkerson v. Social Security Administration Doc. 13 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS JONESBORO DIVISION CHRIS FULKERSON PLAINTIFF v. NO. 3:17-cv-00065 PSH NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration DEFENDANT MEMORANDUM OPINION AND ORDER Plaint iff Chris Fulkerson (“ Fulkerson” ) began t his case by filing a complaint pursuant t o 42 U.S.C. 405(g). In t he complaint , 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” ). Fulkerson 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 Fulkerson’ s posit ion t hat his residual funct ional capacit y was erroneously assessed, and he offers t wo reasons why. First , Fulkerson maint ains t hat he cannot perform light work, as t he ALJ found, because Fulkerson cannot sat isfy t he st anding or walking requirement s of light work. Second, Fulkerson maint ains t hat t he ALJ’ s credibilit y analysis was fleet ing and focused exclusively on Fulkerson’ s daily act ivit ies, making no ment ion of his work hist ory. 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 his limit at ions. See Brown v. Barnhart , 390 F.3d 535 (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 t he assessment , t he ALJ must evaluat e t he claimant ’ s subj ect ive complaint s. See Pearsall v. Massanari, 274 F.3d 1211 (8t h Cir. 2001). The ALJ should consider t he medical evidence and evidence of t he claimant 's daily act ivit ies; t he durat ion, frequency, and int ensit y of his pain; t he dosage and effect iveness of his medicat ion; precipit at ing and aggravat ing fact ors; and funct ional rest rict ions. See Id. [cit ing Polaski v. Heckler, 739 F.2d 1320 (8t h Cir. 1984)]. The record reflect s t hat Fulkerson was born on January 24, 1964, and was fift y years old when he filed his applicat ions for disabilit y insurance benefit s and supplement al securit y income payment s. He alleged in t he applicat ions t hat he had become disabled beginning on March 27, 2014, because of impairment s t hat included coronary art ery disease, double bypass surgery, and gout . See Transcript at 147, 151. A summary of t he evidence relevant t o Fulkerson’ s abilit y t o st and or walk reflect s t hat he saw Dr. Leslie McCasland, M.D., (“ McCasland” ) on March 6, 2013, for complicat ions caused by gout in his feet . See Transcript at 667-669. McCasland not ed t hat Fulkerson was t aking Colcrys and allopurinol every day for gout and was t olerat ing t he medicat ions well. McCasland also not ed t hat alt hough Fulkerson had a “ mini-flare on t he dorsum of his right foot ,” he was ot herwise doing “ fairly well.” See Transcript at 667. McCasland cont inued Fulkerson on his medicat ions and urged him t o cont inue using Colcrys. 2 On March 29, 2013, Fulkerson saw Dr. James Murrey, M.D., (“ Murrey” ). See Transcript at 395-399. Fulkerson report ed t hat he had st opped t aking allopurinol because it had caused complicat ions, but he had rest art ed it when he began having “ a lot of gout again in his right ... foot t hat was very painful.” See Transcript at 395. Murrey recommended t hat Fulkerson discont inue Colcrys and allopurinol and recommended t hat he begin t aking Decamix. Murrey also spoke at lengt h wit h Fulkerson about his need t o maint ain a low prot ein diet because cert ain foods could cause a flare up of his gout . Fulkerson saw McCasland on August 14, 2013. See Transcript at 650-653. Fulkerson report ed a flare up of gout in his left mid-foot . He report ed no “ diet ary indiscret ion” and report ed having t aken all of his medicat ions. See Transcript at 650. McCasland prescribed a Medrol Dosepak t o be used in t he event of a flare up and cont inued t he use of Uloric, which Fulkerson had previously been prescribed. Fulkerson saw Murrey on Oct ober 15, 2013. See Transcript at 380-384. Wit h respect t o Fulkerson’ s gout , Murrey’ s progress not e reflect s t he following: “ [McCasland] has [Fulkerson] on Uloric as well as Colchicine, which [Fulkerson] st at es he is t aking [t hree] days a week for his gout . He feels t his has helped his flare ups. He had it in his foot ...” See Transcript at 380. Murrey cont inued Fulkerson on his medicat ions. On December 16, 2013, McCasland saw Fulkerson for his gout . See Transcript at 644-646. Alt hough Fulkerson report ed “ t winges in his big t oes,” he did not report any flare ups of his gout . See Transcript at 644. He also report ed t hat he was t aking and t olerat ing his medicat ions. McCasland cont inued Fulkerson on his medicat ions. 3 On March 27, 2014, Fulkerson present ed t o a NEA Bapt ist Clinic emergency room complaining of chest pains and a syncope, or near syncope, event . See Transcript at 492-508. Test ing was performed, and t he diagnosis was dehydrat ion. On April 11, 2014, Fulkerson underwent a st ress echocardiogram. See Transcript at 490-491. The result s of t he “ [t ]echnically adequat e st udy” were wit hin normal limit s. See Transcript at 491. The summary port ion of t he report includes t he following not at ion: “ [e]xcellent exercise t olerance wit h adequat e heart rat e response wit h no induced chest pain.” See Transcript at 491. Fulkerson saw Murrey again on April 18, 2014, for a follow-up examinat ion. See Transcript at 363-367. Murrey not ed in his progress not e t hat Fulkerson was scheduled t o ret urn t o work on April 21, 2014. Murrey recorded Fulkerson’ s hist ory of present illness as follows: ... [Fulkerson] was hospit alized ... for a near syncope episode at work. This occurred associat ed wit h exert ion. He also had preceding t his some right sided chest pain. He was also not ed t o be hypot ensive, hypoglycemic, and t achycardic. He was admit t ed. He had a vent ilat ion profusion lung scan and chest x-ray and lab cardiac enzymes t hat were negat ive. He has also had a st ress echocardiogram done April 11t h t hat did not show any evidence of reversible ischemia. He had been doing st renuous work and he had prior t o t hat t ime been used t o office work. ... He has not had chest pain as severe as when he was in t he hospit al. ... See Transcript at 363. Murrey opined t hat Fulkerson was “ resolved from his syncope episode” but likely had “ poor exercise condit ioning.” See Transcript at 367. Over t he next t wo mont hs, Fulkerson cont inued t o complain of syncope, or near syncope, event s; dehydrat ion; sweat ing; and light headedness. See Transcript at 482287, 362, 361. It appears t hat t he sympt oms were brought about by physical act ivit y. 4 Fulkerson saw Dr. Mat t Haust ein, M.D., (“ Haust ein” ) on May 19, 2014, for chest pains. See Transcript at 472-475. Fulkerson report ed t hat his sympt oms included “ chest heaviness,” dyspnea, episodes of “ near syncope,” and cramping in his hands and legs. See Transcript at 472. He report ed having t he sympt oms every t ime he exert ed himself. Haust ein observed t hat Fulkerson had a normal gait , normal balance, and normal muscle t one and st rengt h. Haust ein cont inued Fulkerson on his medicat ions and recommended a cardiac cat het erizat ion. On May 27, 2014, Haust ein performed t he recommended cardiac cat het erizat ion. See Transcript at 617-619. Alt hough t he t est ing revealed a normal left vent ricular syst olic funct ion, t he t est ing also revealed “ [s]evere nat ive vessel coronary art ery disease ...” See Transcript at 618. Three days lat er, Fulkerson underwent double bypass surgery performed by Dr. Paul Levy, M.D., (“ Levy” ). See Transcript at 529-531. The progress not e reflect s t hat t he surgery was precipit at ed by Fulkerson’ s “ worsening angina on exert ion” wit h “ marked fat igue and presyncopal episodes.” See Transcript at 530. On June 6, 2014, Fulkerson saw Murrey for a check-up. See Transcript at 356360. Murrey not ed t hat Fulkerson had done well since t he surgery and was not having any new complaint s. Murrey made no significant changes in Fulkerson’ s medicat ions. The same day, Fulkerson was seen at a cardiac rehabilit at ion cent er for physical t herapy. See Transcript at 411. He was required t o walk on a t readmill. While doing so, he complained of mild short ness of breat h but no chest pain. He was encouraged t o increase t he t ime and workload of his exercises “ a lit t le bit at a t ime wit h each visit .” See Transcript at 411. 5 Fulkerson was t hereaft er seen at t he rehabilit at ion cent er for physical t herapy on what appears t o have been seven occasions. See Transcript at 412, 413, 414, 415, 416, 417, 418. The progress not es from t he physical t herapy reflect t hat Fulkerson responded favorably t o t reat ment and t olerat ed exercise well, only occasionally complaining of chest pains and short ness of breat h. McCasland saw Fulkerson again on June 30, 2014. See Transcript at 517-520. McCasland recorded Fulkerson’ s hist ory of present illness t o be, in part , as follows: ... [Fulkerson] is slowly get t ing his st rengt h back. His last gout flare was in February. He t ook a Medrol Dosepak and it quickly resolved. It was in his feet . He has not had any since. He has not been on his gout medicine since he was in t he hospit al and he is on so many medicat ions right now he is skept ical about rest art ing his gout medicat ions. Even prior t o his surgery he felt like he was sore all t he t ime. ... See Transcript at 517. Fulkerson report ed fat igue, chest pains, and discomfort . McCasland diagnosed gout and anemia and cont inued Fulkerson on his medicat ions. McCasland also not ed t hat Fulkerson had a Medrol Dosepak for his use in t he event he experienced a gout flare. On July 8, 2014, Levy saw Fulkerson for a post -operat ive examinat ion. See Transcript at 513-516. Levy observed t hat Fulkerson was fully ambulat ory. Levy was of t he opinion t hat Fulkerson should “ be able t o ret urn t o work wit hout rest rict ions [t wo] mont hs from surgery.” See Transcript at 513. Haust ein saw Fulkerson again on July 31, 2014. See Transcript at 677-680. Haust ein’ s progress not e reflect s t hat Fulkerson complained of dyspnea upon exert ion and chest pains. Haust ein observed t hat Fulkerson had a normal gait , normal balance, and normal muscle t one and st rengt h in his upper and lower ext remit ies. 6 On Oct ober 30, 2014, Dr. Roger Troxel, M.D., (“ Troxel” ) performed a general physical examinat ion of Fulkerson at t he request of t he Commissioner. See Transcript at 686-690. Fulkerson’ s complaint s included increased dyspnea on exert ion and a decreased abilit y t o st and and walk. Troxel found t hat Fulkerson had a full range of mot ion in all of his ext remit ies, save a reduced range of mot ion in his lumbar spine and knees. Troxel observed t hat Fulkerson had a normal gait and coordinat ion, could st and/ walk wit hout assist ive devices, and could walk on his heels and t oes. Troxel’ s diagnoses included coronary art ery disease, ost eoart hrit is, and gout . Troxel opined t hat Fulkerson had a mildly diminished abilit y t o st and and walk secondary t o dyspnea. Fulkerson saw Murrey on April 3, 2015, aft er experiencing flare-ups of gout . See Transcript at 703-704. Murrey not ed t hat Fulkerson had been cont rolling t he flare-ups wit h diet but had not been t aking Uloric. Murrey saw Fulkerson again on Oct ober 22, 2015. See Transcript at 720-721. Fulkerson report ed having short ness of breat h wit h exert ion. His sympt oms were similar t o when he had st ent ing for coronary art ery disease, alt hough t he chest pains he once had were no longer present . Murrey referred Fulkerson t o a pulmonologist . Murrey saw Fulkerson on November 25, 2015, for a follow-up examinat ion for his complaint s of short ness of breat h. See Transcript at 718-719, 722. Fulkerson also complained of chest pains, not ing t hat he had experienced “ [t wo] episodes of chest pain in [t he] past [one] week.” See Transcript at 722. He report ed t hat t he episodes were approximat ely one hour in durat ion and occurred once at rest and once aft er climbing st airs. The episodes resolved spont aneously. He was referred t o a cardiologist and inst ruct ed t o seek emergency room assist ance if t he episodes reoccurred. 7 On December 23, 2015, Haust ein saw Fulkerson for his short ness of breat h and chest pains. See Transcript at 732-735. Haust ein not ed, int er alia, t hat Fulkerson had normal breat h sounds and a normal range of mot ion. Haust ein diagnosed, in part , unspecified chest pains, ischemic chest pains, and “ at herosclerosis of nat ive coronary art ery of nat ive heart wit hout angina pect oris.” See Transcript at 734-735. Fulkerson was inst ruct ed t o t ake prescript ion medicat ion for his heart and cont inue t aking aspirin indefinit ely. Haust ein saw Fulkerson again on January 6, 2016, at which t ime he underwent a myocardial perfusion st ress t est . See Transcript at 737-738. The result s of t he t est were wit hin normal limit s. Fulkerson ret urned t o see Murrey on February 28, 2016. See Transcript at 740741. Fulkerson report ed st ill having dyspnea upon exert ion, alt hough Murrey not ed t hat a cardiac work-up had been negat ive. Murrey diagnosed, in part , dyspnea on exert ion. In t he mont hs t hat followed, Fulkerson cont inued t o complain of difficult y breat hing while exert ing himself. For inst ance, he saw Murrey’ s advanced pract ice nurse on April 6, 2016, and complained of dyspnea on exert ion. See Transcript at 742. Fulkerson complet ed a series of document s in connect ion wit h his applicat ions. See Transcript at 251-258, 260-264, 265-266, 267-274. The document s reflect t hat he worked as a product ion worker from August of 1998 unt il August of 2006, as an invent ory cont roller from August of 2006 unt il August of 2008, and as an ingredient handler from July of 2009 unt il July of 2014. He experiences pain upon st anding and walking and cannot st and or walk for long periods of t ime. He can at t end t o his own personal care, perform some household chores, but cannot perform yard work because it is t oo t iring. 8 Fulkerson t est ified during t he administ rat ive hearing. See Transcript at 65-80. He has a Bachelor of Science degree in radiology. He summarized his work hist ory and explained t he discrepancy bet ween his work hist ory and his educat ional background. It was his opinion t hat he lacked adequat e educat ion in radiology. He also not ed t hat he would have had t o move t o Memphis, Tennessee, t o find a j ob, and he did not want t o move t here. Fulkerson t est ified t hat his rehabilit at ion following his double bypass surgery involved walking on a t readmill and riding a st at ionary bike. He acknowledged t hat t he progress not es from his rehabilit at ion indicat e t hat he responded favorably t o t reat ment . His abilit y t o walk is rest rict ed, and he experiences short ness of breat h whenever he “ move[s] around a lot .” See Transcript at 77. He did not believe he could work a j ob t hat required him t o be on his feet for at least six hours during an eight hour period. He can walk for only about five minut es before having t o st op and rest . Fulkerson’ s sist er at t ends t o his shopping needs and performs t he household chores. He could not recall a physician having imposed any rest rict ion on his act ivit ies aft er he was medically cleared following his double bypass surgery. The ALJ assessed Fulkerson’ s residual funct ional capacit y and found t hat he is capable of performing light work wit h some addit ional rest rict ions. In so finding, t he ALJ gave only part ial weight t o Troxel’ s opinions because Troxel did not specify what he meant by “ ’ mildly diminished’ nor did his examinat ion reveal short ness of breat h.” See Transcript at 59. The ALJ also made no ment ion of Fulkerson’ s work hist ory. The ALJ found at st ep four t hat Fulkerson could not ret urn t o his past relevant work but found at st ep five t hat t here is ot her work a hypot het ical individual wit h Fulkerson’ s limit at ions could perform. 9 Fulkerson maint ains t hat his residual funct ional capacit y was erroneous assessed because he is incapable of performing t he st anding or walking requirement s of light work and because inadequat e considerat ion was given t o his ext ensive work hist ory. 2 For t he reasons t hat follow, t hough, t he Court finds t hat subst ant ial evidence on t he record as a whole support s t he ALJ’ s assessment of Fulkerson’ s residual funct ional capacit y. First , t he ALJ adequat ely considered t he medical evidence. In short , it is unremarkable. Alt hough Fulkerson experienced occasional flare-ups of gout , it was largely cont rolled by medicat ion and diet . When Fulkerson present ed t o a NEA Bapt ist Clinic emergency room on March 27, 2014, complaining of chest pains and a syncope, or near syncope, event , t est ing indicat ed t hat he was simply dehydrat ed. A st ress echocardiogram was performed on April 11, 2014, and t he result s were wit hin normal limit s. The summary port ion of t he report includes t he following not at ion: “ [e]xcellent exercise t olerance wit h adequat e heart rat e response wit h no induced chest pain.” See Transcript at 491. It is t rue t hat Fulkerson underwent double bypass surgery on May 30, 2014, but he appears t o have made an accept able recovery from t he surgery. For inst ance, Murrey not ed in his June 6, 2014, progress not e t hat Fulkerson had done well since t he surgery and was not having any new complaint s. In addit ion, t he progress not es from Fulkerson’ s physical t herapy reflect t hat he responded favorably t o t reat ment and t olerat ed exercise well, only occasionally complaining of chest pains and short ness of breat h. Haust ein saw Fulkerson on January 6, 2016, and performed a myocardial perfusion st ress t est . The result s of t he t est were wit hin normal limit s. 2 Light work requires that the claimant stand or walk for a total of six hours in an eight hour workday. 10 Fulkerson acknowledged during t he administ rat ive hearing t hat no medical cause had t hen been found for his short ness of breat h. He t est ified t hat “ [t ]hey can’ t find out why I’ m having short ness of breat h. The last procedure I had was a CT, and it came back normal. And I st ill have short ness of breat h.” See Transcript at 69. The ALJ also properly considered t he observat ions of t he medical professionals. They repeat edly observed t hat Fulkerson has a normal gait , normal balance, normal muscle t one and st rengt h. For inst ance, Troxel observed t hat Fulkerson has a normal gait and coordinat ion, could st and/ walk wit hout assist ive devices, and could walk on his heels and t oes. Troxel also observed t hat Fulkerson had a full range of mot ion, save a reduced range of mot ion in his lumbar spine and knees Fulkerson t akes issue wit h t he ALJ’ s t reat ment of Troxel’ s opinions, opinions t he ALJ accorded only part ial weight . The Court finds no error in t he ALJ’ s t reat ment of Troxel’ s opinions. Troxel opined t hat Fulkerson had a “ mildly diminished” abilit y t o st and and walk secondary t o dyspnea. Troxel failed, t hough, t o explain what he meant by t he phrase “ mildly diminished.” Alt hough request ing clarificat ion from Troxel as t o what he meant by t he phrase would have been helpful, it was not necessary because t here was sufficient informat ion for t he ALJ t o have made an informed decision. See Prat t v. Ast ure, 372 Fed.Appx. 681 (8t h Cir. 2010). 3 Troxel’ s opinions could also be discount ed because he made no ment ion of Fulkerson’ s complaint s of short ness of breat h, complaint s t hat t he ALJ could and did find credible. In Coombs v. Berryhill, F.3d , 2017 WL 6614564 (8th Cir. 2017), the Court of Appeals determined that an ALJ erred when he failed to seek clarification of the phrases “no acute distress” and “normal movement in all extremities.” In this instance, though, no clarification was necessary for two reasons. First, the ALJ gave little weight to Troxel’s opinion that Fulkerson has a “mildly diminished” ability to stand and walk secondary to dyspnea. Second, the record contains other treatment notes detailing Fulkerson’s ability to stand or walk. 3 11 Second, t he ALJ’ s considerat ion of t he non-medical evidence, while not exhaust ive, was adequat e. The ALJ properly considered Fulkerson’ s daily act ivit ies, act ivit ies t hat included at t ending t o his own personal care, preparing simple meals, performing some household chores, shopping, and visit ing family. The ALJ also properly considered Fulkerson’ s medicat ion and t reat ment . The ALJ could and did find t hat t he t reat ment was largely rout ine and conservat ive. Alt hough Fulkerson experienced occasional flare-ups of gout , it was largely cont rolled by medicat ion and diet . His chest pains and short ness of breat h were reoccurring problems, but t he ALJ credit ed t he complaint s and incorporat ed a work-relat ed rest rict ion for t he problems. It is t rue t hat t he ALJ made no ment ion of Fulkerson’ s work hist ory. Alt hough Fulkerson’ s work hist ory was good and showed significant earnings for several years, see Transcript at 225, a remand is not warrant ed for at least t wo reasons. First , t he ALJ is not required t o discuss every Polaski v. Heckler fact or in evaluat ing a claimant ’ s subj ect ive complaint s. See Casey v. Ast rue, 503 F.3d 687 (8t h Cir. 2007). Second, any error on t he part of t he ALJ was harmless. The ALJ credit ed Fulkerson’ s complaint s of chest pains and short ness of breat h by limit ing him t o light work, and it is not clear how a more ext ensive analysis of his work hist ory would have led t o a different assessment of his residual funct ion capacit y. The governing st andard in t his case, i.e., subst ant ial evidence on t he record as a whole, allows for t he possibilit y of drawing t wo inconsist ent conclusions. See Culbert son v. Shalala, 30 F.3d 934 (8t h Cir. 1994). The ALJ craft ed an assessment of Fulkerson’ s residual funct ional capacit y t hat limit ed him t o light work, and Fulkerson has not shown why t he ALJ erred in doing so. In short , t he ALJ could find as he did. 12 On t he basis of t he foregoing, t he Court finds t hat t here is subst ant ial evidence on t he record as a whole t o support t he ALJ’ s findings. Fulkerson’ s complaint is dismissed, all request ed relief is denied, and j udgment will be ent ered for t he Commissioner. IT IS SO ORDERED t his 12t h day of January, 2018. ________________________________________ UNITED STATES MAGISTRATE JUDGE 13
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