Nowden v. Social Security Administration, No. 5:2016cv00044 - Document 14 (E.D. Ark. 2017)
Court Description: MEMORANDUM OPINION AND ORDER supporting the ALJ's findings. Nowden's 2 complaint is dismissed, all requested relief is denied, and judgment will be entered for the Commissioner. Signed by Magistrate Judge Patricia S. Harris on 1/23/2017. (ljb)
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Nowden v. Social Security Administration Doc. 14 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF ARKANSAS PINE BLUFF DIVISION SIDNEY NOWDEN v. PLAINTIFF NO. 5:16-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 Sidney Nowden (“ Nowden” ) began t he case at bar 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 findings made by an Administ rat ive Law Judge (“ ALJ” ). Nowden 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 because Nowden’ s residual funct ional capacit y was not properly assessed. 1 It is Nowden’ s posit ion t hat “ [t ]here is no medical evidence addressing [his] abilit y t o funct ion in t he workplace, ot her t han t he non-examining st at e agency physicians’ opinions,” see Document 11 at CM/ ECF 9, and t he ALJ did not rely upon t hose opinions in assessing Nowden’ s residual funct ional capacit y. 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). As a part of making t he assessment , t he ALJ is required t o evaluat e t he claimant ’ s credibilit y regarding his subj ect ive complaint s. See Pearsall v. Massanari, 274 F.3d 1211 (8t h Cir. 2001). The ALJ makes t hat evaluat ion by considering t he medical evidence and evidence of t he claimant 's “ daily act ivit ies; durat ion, frequency, and int ensit y of pain; dosage and effect iveness of medicat ion; precipit at ing and aggravat ing fact ors; and funct ional rest rict ions.” See Id. at 1218 [cit ing Polaski v. Heckler, 739 F.2d 1320 (8t h Cir. 1984)]. On August 22, 2012, Nowden filed an applicat ion seeking supplement al securit y income payment s. 2 He alleged in t he applicat ion t hat he is disabled on account of his right leg pain, hypert ension, and neuropat hy. His t est imony during t he administ rat ive hearing was devot ed primarily t o his right knee and right wrist impairment s, and his brief in t his case is devot ed ent irely t o t hose impairment s. Accordingly, t he Court will only consider t he evidence relevant t o Nowden’ s right knee and right wrist impairment s. 2 Nowden alleged in his applicat ion t hat he became disabled on January 1, 2006. The Commissioner correct ly not es, t hough, t hat supplement al securit y income payment s are not payable for any period prior t o t he prot ect ive filing dat e of t he applicat ion seeking such payment s. For t hat reason, t he relevant t ime period for Nowden’ s applicat ion is from t he prot ect ive filing dat e of t he applicat ion, i.e., August 22, 2012, t hrough t he dat e of t he ALJ’ s decision denying t he applicat ion, i.e., Sept ember 26, 2014. The Court will nevert heless briefly consider evidence prior t o August 22, 2012, for t he purpose of placing Nowden’ s applicat ion in cont ext . -2- A summary of t he medical evidence relevant t o Nowden’ s right knee and right wrist impairment s reflect s t hat on January 22, 2010, he was seen for a consult at ive physical examinat ion in connect ion wit h a prior applicat ion for disabilit y benefit s. See Transcript at 245-250. The at t ending physician recorded Nowden’ s medical hist ory and not ed, int er alia, t hat Nowden had undergone surgery in 1994 t o repair a rupt ure t o t he Achilles t endon in his right foot . A physical examinat ion revealed t hat alt hough he had an abnormal gait , he had normal range of mot ion in all of his ext remit ies. He also had normal grip st rengt h in bot h of his wrist s. The diagnoses included one of “ right lower leg pain,” but his disabilit y was charact erized as “ minimal.” See Transcript at 249. On December 19, 2011, Nowden was seen by a regist ered nurse pract it ioner for complaint s of, int er alia, pain and soreness in Nowden’ s right wrist and right knee. See Transcript at 257-258. No abnormal findings were made, alt hough Nowden was diagnosed wit h “ diffuse art hralgias,” i.e., j oint pain. He was prescribed medicat ion and given inj ect ions for his pain. On Oct ober 26, 2012, and again on December 3, 2012, Nowden was seen by Dr. Bryan Raymundo, M.D., (“ Raymundo” ) for complaint s of, int er alia, right knee pain. See Transcript at 262, 274-278. A physical examinat ion revealed t hat Nowden had right knee “ crepit us on flexion,” a limit ed range of mot ion, and an inabilit y t o bear much weight on his right leg. See Transcript at 274. An X-ray of his right knee revealed evidence of “ mild t ricompart ment al ost eoart hrit is.” See Transcript at 262. He was prescribed medicat ion and referred t o Dr. James Pollard, M.D., (“ Pollard” ). -3- On November 28, 2012, Nowden was seen by Dr. Don Ball, M.D., (“ Ball” ) for a consult at ive examinat ion. See Transcript at 267-271. Ball recorded Nowden’ s medical hist ory and not ed Nowden’ s report s of pain and weakness in his right leg and art hrit is in his right knee. A physical examinat ion revealed t hat alt hough he walked wit h a limp and could only t ake t wo st eps on his t oes, he exhibit ed normal range of mot ion in all of his ext remit ies and his post ure and coordinat ion were wit hin normal limit s. He also exhibit ed normal grip st rengt h in bot h of his wrist s. Ball’ s diagnoses included a diagnosis of an “ old surgical repair [of Nowden’ s right ] Achilles t endon.” See Transcript at 271. On January 10, 2013, Pollard saw Nowden for an evaluat ion of his right knee pain. See Transcript at 316-317. Pollard recorded Nowden’ s medical hist ory and not ed, int er alia, t hat Nowden had been having right knee pain for six mont hs, t he pain increased wit h weight bearing, and he somet imes walked wit h a cane. Pollard performed a physical examinat ion and reviewed a series of X-rays. His impression was as follows: “ [r]ight knee pain, exact et iology is not clear.” See Transcript at 317. Pollard prescribed medicat ion, inst ruct ed Nowden on rehabilit at ion exercises, and ordered MRI t est ing of his right knee. MRI t est ing of Nowden’ s right knee was performed on January 16, 2013. See Transcript at 335-336. The result s of t he t est ing revealed a “ [t ]iny lat eral meniscus t ear,” some “ loose body in t he post erior medial compart ment ,” “ [m]oderat e t o severe chondral t hinning in t he pat ellofemoral compart ment wit h subj acent edemat ous marrow in t he pat ella,” “ [s]prain of t he medial collat eral ligament ,” and “ [p]at ellar t endinosis.” See Transcript at 335. -4- Pollard saw Nowden again on February 19, 2013, and February 28, 2013. See Transcript at 313-315, 309-311. Alt hough Nowden could bear weight on his right leg, he cont inued t o complain of right knee pain. Pollard opined t hat t he pain was “ probably secondary t o early ost eoart hrit is of t he pat ellofemoral j oint .” See Transcript at 314. Aft er discussing several t reat ment opt ions wit h Pollard at bot h visit s, Nowden elect ed t o proceed wit h art hroscopy of his right knee. On March 5, 2013, Pollard performed art hroscopic surgery on Nowden’ s right knee. See Transcript at 327-331. Pollard saw Nowden for at least t wo post -operat ive examinat ions and not ed t hat his pain had largely subsided. See Transcript at 340-341. At a March 15, 2013, post -operat ive examinat ion, Pollard not ed t he following: “ [Nowden] is doing well. His knee pain is bet t er since surgery. He is ambulat ing full weight -bearing on t he right leg wit hout lat eral aids.” See Transcript at 341. He was inst ruct ed t o “ work on a home program of knee rehabilit at ions exercises” and cont inue t aking medicat ion. See Transcript at 341. At an April 12, 2013, post -operat ive examinat ion, Pollard not ed t he following: [Nowden] is doing very well wit h his right knee. His has minimal pain in t he right knee.” See Transcript at 340. He exhibit ed full range of mot ion in his right knee, alt hough he did have some palpable crepit us wit h act ive movement . Pollard opined t hat Nowden could “ advance act ivit ies as t olerat ed.” See Transcript at 340. Nowden sought medical at t ent ion again for t he pain in his right knee on July 20, 2013, and on December 5, 2013. See Transcript at 500-501 (07/ 20/ 2013), 349-350 (12/ 05/ 2013). A physical examinat ion on July 20, 2013, revealed [right ] knee crepit us on -5- flexion and ext ension,” limit ed range of mot ion, and an inabilit y t o bear “ t oo much weight .” See Transcript at 500. He was prescribed medicat ion and, at t he second present at ion, given a Kenelog inj ect ion. On May 6, 2014, and again on May 8, 2014, Nowden was seen by a regist ered nurse pract it ioner for complaint s of pain and soreness in his right knee and right wrist . See Transcript at 347-349, 345-347. A physical examinat ion revealed edema in bot h j oint s, and he was given medicat ion. An x-ray of his right wrist revealed “ [a]dvanced loss of j oint space in t he radiocarpal region.” See Transcript at 380. The int erpret ing physician also not ed t he following: “ [h]igh suspicion forscapholunat e disrupt ion wit h moderat e volar t ilt ing of t he lunat e.” See Transcript at 380. In May of 2014, Nowden was seen by Dr. Richard Wirges, M.D., (“ Wirges” ) for complaint s of right wrist pain. See Transcript at 385-386, 389-390. Wirges recorded Nowden’ s medical hist ory and not ed, in part , t he following: This is a 48-year-old gent leman, right -hand dominant , does a lot of lift ing, heavy work, comes in wit h pain in his wrist , has had it for years. It has got t en worse over t ime. It has got t en t o t he point now where it is affect ing all his funct ion and comfort . He has t ried splint s, ant i-inflammat ories, behavior modificat ions, and has not improved his sympt oms and has not been able t o cont rol t hem t o make him funct ional or comfort able. He comes in vascularly int act . He is neurologically grossly int act . X-rays show he has a slack wrist . He does have some art hrit ic changes minimal of t he radiocarpal j oint on t he scaphoid side and problems wit h his radial st yloid. He does have a DISI [i.e., dorsal int ercalat ed segment inst abilit y] deformit y and has discomfort all t hroughout t his area when st ressing. This is affect ing his funct ion and his comfort . He [has] already lost a significant amount of his mot ion compared t o t he cont ralat eral side, especially wit h flexion and ext ension, and he has lost grip st rengt h. -6- See Transcript at 385. Wirges recommended a “ right wrist 4-corner fusion wit h scaphoid excision, radial st yloidect omy, and a part ial wrist denervat ion,” and Nowden agreed t o t he procedure. See Transcript at 385. On June 3, 2014, Wirges performed t he agreed upon surgery on Nowden’ s right wrist . See Transcript at 391-392. Wirges followed Nowden’ s recovery from t he surgery and saw him on at least six subsequent occasions. See Transcript at 387-388 (06/ 17/ 2014), 503 (07/ 18/ 2014), 504 (09/ 05/ 2014), 12 (12/ 31/ 2014), 11 (02/ 27/ 2015), 10 (03/ 31/ 2015). Wirges’ progress not es reflect t hat alt hough physical examinat ions and t est ing indicat ed t hat Nowden’ s right wrist was improving and he was approaching maximum medical improvement , he cont inued t o complain of pain. Nowden received t herapy and, at one point , was released t o “ light dut y wit h t he hand.” See Transcript at 504. By t he t ime Wirges saw Nowden on March 31, 2015, Wirges’ progress not e cont ained t he following observat ions and plan: ... X-rays showed good healing but he cont inues t o be limit ed in his mot ion st ill had pain going t o ... his wrist . We sent him for CT scan j ust t o make sure t here is not any ot her abnormalit ies/ incomplet e healing. CT scan shows good fusion and no ot her gross abnormalit ies seen or found. Hardware st ill in good posit ion. On exam, he has great range of mot ion of his fingers and t humb and excellent pronat ion/ supinat ion. He [is] st ill limit ed in his flexion [and] ext ension more so t han t he radial and ulnar deviat ion. His scars healed great and he has no soft t issue abnormalit ies. Clinically he has no signs of RSD/ chronic regional pain syndrome. He st at es it has improved some over t he last mont h and t hat he feels [capable of] doing all t he t herapy on his own and does not want t o go t o formal t herapy. ... At t his point , I cannot find any ot her source [or] cause [of his] pain besides -7- j ust t he st iffness and scar. He want s t o do t he t herapy on his own [so I am] going t o let him. ... At t his point , I do not t hink ... we can really do [much] t o help him ... See Transcript at 10. Nowden’ s medical records were reviewed by st at e agency physicians. See Transcript at 77-84, 87-98, 306-307, 337-338, 342-343. The physicians agreed t hat Nowden has no severe impairment s. A summary of t he non-medical evidence relevant t o Nowden’ s right knee and right wrist impairment s reflect s t hat he was born on Oct ober 28, 1965. See Transcript at 55. He was fort y-eight years old at t he t ime of t he administ rat ive hearing. Nowden complet ed a series of document s in connect ion wit h his claim for supplement al securit y income payment s. See Transcript at 190-191, 192-199, 210-211, 212-219. In t he document s, he represent ed, int er alia, t hat he has difficult y climbing st airs, bending, st anding, walking, and squat t ing. He can at t end t o most of his personal care, can prepare very simple meals, can perform basic household chores, and is capable of performing limit ed yard work. His hobbies and int erest s include reading and wat ching t elevision, alt hough t he pain in his right knee makes it difficult for him t o sit for ext ended periods of t ime. He t akes medicat ion for his pain. The record cont ains a summary of Nowden’ s FICA earnings. See Transcript at 171. The summary reflect s t hat he had no report able earnings of any amount bet ween 1980 and 2013, save minimal earnings in 1984, 1986, 1990, and 2005. -8- Nowden t est ified during t he administ rat ive hearing. See Transcript at 55-66. He has a high school diploma and has only worked “ cash j obs” t hroughout his lifet ime. See Transcript at 57. He acknowledged t hat in April of 2014, or t went y mont hs aft er filing t he applicat ion at bar, and t wo mont hs before his right wrist surgery, he briefly worked a j ob t hat required heavy lift ing. The work, t hough, caused his hand t o swell. Nowden t akes, or has t aken, prescript ion medicat ion for t he pain in his right wrist , medicat ion t hat has included hydrocodone, oxycodone, and percocet . He t est ified t hat he can do “ not hing” wit h his right hand, see Transcript at 63, specifically not ing t hat he cannot perform any household chores and even has difficult y bat hing and feeding himself. When asked what prevent s him from performing a “ sit -down j ob,” he answered, “ I’ m right -handed.” See Transcript at 66. The ALJ found at st ep t wo of t he sequent ial evaluat ion process t hat Nowden has severe impairment s in t he form of “ st at us-post art hroscopic chondroplast y of lat eral femoral condyle and pat ella of t he right knee and ost eoart hrit is of t he wrist .” See Transcript at 36. The ALJ t hen assessed Nowden’ s residual funct ional capacit y and found t hat he ret ains t he abilit y t o peform light work, except t hat he can only “ kneel and crawl occasionally” but can “ frequent ly reach, handle, finger, and feel.” See Transcript at 38. 3 There is lit t le doubt t hat Nowden experiences pain in his right knee and right 3 The ALJ found at st ep four t hat Nowden has no past relevant work but found at st ep five t hat t here is ot her work he can perform. The ALJ ident ified t he work as t hat of a “ cashier II, charge clerk, call out operat or, and surveillance monit or.” See Transcript at 43. The ALJ t herefore concluded t hat Nowden is not disabled as t hat t erm is defined by t he Social Securit y Act . -9- wrist . The quest ion for t he ALJ was not whet her Nowden experiences such pain but rat her t he ext ent t o which it impact s t he most he can do despit e his limit at ions. The evidence on t hat quest ion is conflict ing and is capable of more t han one accept able charact erizat ion. The ALJ incorporat ed a limit at ion for Nowden’ s right knee and right wrist pain int o t he assessment of his residual funct ional capacit y but did not find t he pain t o be disabling. The ALJ could find as he did as subst ant ial evidence on t he record as a whole support s his charact erizat ion of t he evidence and his assessment of t he limit at ions caused by Nowden’ s pain. The Court so finds for t hree reasons. First , t he ALJ adequat ely considered t he medical evidence relevant t o Nowden’ s right knee pain, pain Pollard at t ribut ed t o “ probable early ost eoart hrit is of t he pat ellofemoral j oint .” Pollard performed art hroscopic surgery on Nowden’ s right knee, aft er which Pollard observed t hat , int er alia, Nowden was “ doing well,” had minimal pain, had full range of mot ion but some palpable crepit us wit h movement , and was “ ambulat ing full weight -bearing on t he right leg wit hout lat eral aids.” Pollard’ s observat ions indicat e t hat much of Nowden’ s pain subsided aft er t he surgery. Aft er Pollard’ s last post -operat ive examinat ion of Nowden on April 12, 2013, Nowden sought only minimal medical at t ent ion for his right knee pain. Specifically, he sought medical at t ent ion for his pain on July 20, 2013, December 5, 2013, May 6, 2014, and May 8, 2014. The observat ions made during t hose examinat ions were unremarkable, and he only received conservat ive t reat ment for his pain. Second, t he ALJ adequat ely considered t he medical evidence relevant t o Nowden’ s -10- right wrist pain. Wirges operat ed on Nowden’ s right wrist on June 3, 2014, aft er which Wirges observed t hat , int er alia, t he condit ion of t he wrist was “ improving” and approaching maximum medical improvement despit e Nowden’ s cont inued complaint s of pain. On Sept ember 5, 2014, Wirges released Nowden t o “ light dut y wit h t he hand.” By t he t ime Wirges saw Nowden on March 31, 2015, Wirges observed, in part , t hat Nowden showed “ good healing,” limit ed range of mot ion in his wrist s but “ great range of mot ion of his fingers and t humb and excellent pronat ion/ supinat ion,” and cont inued limit at ion in his “ flexion [and] ext ension more so t han t he radial and ulnar deviat ion.” Wirges’ observat ions indicat e t hat t here was lit t le medical basis t o subst ant iat e Nowden’ s complaint s of disabling right wrist pain. Nowden maint ains t hat t here is no medical evidence addressing his abilit y t o funct ion in t he workplace. It is t rue t here is no one medical opinion t hat mirrors t he ALJ’ s assessment of Nowden’ s residual funct ional capacit y, but no such opinion is required. The ALJ is merely required t o assess t he claimant ’ s residual funct ional capacit y on t he basis of all t he relevant evidence. See Pearsall v. Massanari, 274 F.3d 1211 (8t h Cir. 2001). The manner in which t he ALJ evaluat ed t he medical evidence in t his case was not out side t he “ zone of choice.” See Hacker v. Barnhart , 459 F.3d 934 (8t h Cir. 2006). 4 Third, t he ALJ adequat ely considered t he non-medical evidence relevant t o 4 An ALJ’ s decision will be dist urbed only if it falls out side t he available zone of choice. “ A decision is not out side t hat zone of choice simply because [t he court ] may have reached a different conclusion had [it ] been t he fact finder in t he first inst ance.” See Hacker v. Barnhart , 459 F.3d at 936. -11- Nowden’ s right knee and right wrist pain. The ALJ specifically considered Nowden’ s daily act ivit ies, which Nowden t est ified were ext remely limit ed. There is lit t le evidence, t hough, t o support such an ext reme limit at ion of his daily act ivit es. It is possible t hat t he limit at ion of his act ivit ies is t he product of a personal choice and not t he consequence of his impairment s. It is also wort h not ing t hat when Nowden was seen by Wirges in May of 2014, Nowden report ed t o having done a “ lot of lift ing, heavy work.” Wit h respect t o t he durat ion of Nowden’ s pain, he represent ed on May 6, 2014, t hat he had been experiencing soreness in his right knee and right wrist for t hree days. It is t hus possible t o conclude t hat his pain is int ermit t ent and not const ant . The ALJ also specifically considered Nowden’ s use of medicat ion. The ALJ could and did not e t hat Nowden’ s right knee pain has been t reat ed conservat ively since Pollard performed art hroscopic surgery on March 5, 2013. It is t rue t hat he has t aken prescript ion pain medicat ion in t he past , but he was only t aking hydrocodone at t he t ime of t he administ rat ive hearing. It is unclear what relief he obt ains from t he medicat ion. The ALJ also considered ot her mat t ers t hat call int o quest ion Nowden’ s credibilit y regarding his complaint s of disabling right knee and right wrist pain. The ALJ could and did not e t hat Nowden has a poor work record, having only sporadically worked “ cash j obs.” The ALJ could and did also not e t hat in a funct ion report dat ed Oct ober 12, 2012, Nowden did not allege limit at ions concerning, int er alia, “ lift ing, sit t ing, kneeling, reaching, or using his hands ...” The governing st andard in t his case, i.e., subst ant ial evidence on t he record as a -12- 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). In t his inst ance, t he ALJ’ s assessment of Nowden’ s residual funct ional capacit y was not improper, and t he ALJ could find as he did. 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. Nowden’ 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 23rd day of January, 2017. UNITED STATES MAGISTRATE JUDGE -13-
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