Opinion
1:21-cv-3 RP-SHL
2022-03-07
Shannon Lee SIEDLIK, Plaintiff, v. Kilolo KIJAKAZI, Acting Commissioner of Social Security, Defendant.
Jason Ray Lawrence, William C. Purdy, UNITED STATES ATTORNEY'S OFFICE, DES MOINES, IA, for Defendant. Wes Lance Kappelman, KAPPELMAN LAW FIRM, AMES, IA, for Plaintiff.
Jason Ray Lawrence, William C. Purdy, UNITED STATES ATTORNEY'S OFFICE, DES MOINES, IA, for Defendant.
Wes Lance Kappelman, KAPPELMAN LAW FIRM, AMES, IA, for Plaintiff.
MEMORANDUM OPINION AND ORDER
ROBERT W. PRATT, Judge
To arrive at a consensus on the priority to be afforded the matters entrusted to the jurisdiction of the federal courts might be difficult indeed, but few would dispute the premise that claims of those entitled to disability benefits from the Social Security Administration must rank high on the scale of human concern. On appeal, a court is bound by findings of fact of the Secretary, supported by substantial evidence, but "substantial" means just that and is not the equivalent of a "scintilla." The statute further grants the right to the district court, for good cause shown, to remand to the Secretary for the taking of additional evidence. We are aware, also, of the 1968 amendments ( P.L. 90-248 ) to 42 U.S.C. § 423(d) expressing the intent of Congress to establish firm standards for recovery of benefits. With these not inconsistent considerations in mind, we approach our review of this case.
Hess v. Sec'y of Health, Educ. and Welfare , 497 F.2d 837, 838 (3d Cir. 1974)
Plaintiff, Shannon Lee Siedlik, filed a Complaint in this Court on February 9, 2021, seeking review of the Commissioner's decision to deny her claim for Social Security benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401 et seq. This Court may review a final decision by the Commissioner. 42 U.S.C. § 405(g).
Plaintiff filed an application for benefits on November 1, 2018. Tr. at 174-75. Plaintiff appeared at a hearing on May 11, 2020, before Administrative Law Judge (ALJ) David G. Buell. Tr. at 50-69. The ALJ issued a Notice of Decision – Unfavorable on May 27, 2020. Tr. at 8-23. On December 10, 2020, the Appeals Council declined to review the ALJ's decision. Tr. at 1-3. Thereafter, Plaintiff commenced this action. Both Plaintiff and the Commissioner have filed briefs and Plaintiff filed a reply brief.
ALJ's DECISION
At the outset of the decision, that ALJ noted that Plaintiff is insured for Title II benefits until March 31, 2023. At the first step of the sequential evaluation, 20 C.F.R. § 404.1520(a)(4), the ALJ found that Plaintiff had not engaged in substantial gainful activity after February 15, 2018, the alleged disability onset.
At the second step, the ALJ found that Plaintiff has the following severe impairments: back pain syndrome following multiple lumbar surgeries, degenerative disc disease of the cervical spine, obesity, and migraine headache disorder. Tr. at 13. The ALJ found that Plaintiff's impairments are not severe enough to qualify for benefits at the third step of the sequential evaluation. Tr. at 14.
At the fourth step, the ALJ found:
After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except that she is able to stoop, kneel, crouch, and crawl only occasionally. She is able to perform work that does not require climbing ladders or other exposure to hazards, such as work at unprotected heights. She can perform work in a setting with no more than moderate background noise. She requires the freedom to use a cane when walking. She would be able to perform all the lifting and carrying required of sedentary work using only her free hand.
Tr. at 15. The ALJ found that Plaintiff is unable to perform her past relevant work as a phlebotomist. Tr. at 21.
At the fifth step of the sequential evaluation, the ALJ found that jobs exist in significant numbers which Plaintiff can perform. Examples of such jobs are document preparer, call-out operator, and polisher of eye frames. Tr. at 22. The ALJ found Plaintiff is not disabled nor entitled to the benefits for which she applied. Tr. at 23.
MEDICAL FACTS
On February 10, 2017, Plaintiff was seen by Phillip E. Essay, M.D., at Nebraska Spine and Pain Center. Plaintiff complained of low back pain which failed to respond to conservative treatment. The doctor performed bilateral L4 selective nerve root block. Tr. at 285-86.
On February 22, 2017, Plaintiff saw J.B. Gill, M.D. at Nebraska Spine and Pain Center. Tr. at 287-90. Plaintiff complained of low back pain with radiation. Plaintiff reported that the pain was getting worse after the epidural injection. Plaintiff reported that the pain was worse with prolonged sitting, standing, and walking. She said she was most comfortable if she could change positions freely. Tr. at 287. The doctor recommended transforaminal lumbar and right fusion at L4-5. Plaintiff agreed and wanted to proceed to surgery. Tr. at 290.
On March 17, 2017, Plaintiff underwent a CT scan of her lumbar spine which showed: 1) mild-to-moderate bilateral foraminal stenosis at L4-5; 2) Trace of retrospondylolisthesis of L4 and L5; 3) Unilateral left L5 pars defect. Tr. at 274.
On March 23, 2017, Plaintiff underwent low back surgery performed by Dr. Gill. Tr. at 282-84.
On March 27, 2017, Plaintiff saw John L. Beckenhauer, PAC. Plaintiff reported feeling better with no leg pain. She noted pain with transitions from sitting to standing. Mr. Beckenhauer increased the dosage of Percocet and added Flexeril. Tr. at 646-47.
On March 28, 2017, Plaintiff saw Dr. Gill for a wound check. Tr. at 292-94.
On March 30, 2017, Plaintiff went to an emergency room complaining of abdominal pain and constipation. She reported that she had not had a bowel movement since the surgery. Tr. at 635-43.
On March 31, 2017, Plaintiff saw her primary care physician, Edna Becht, D.O. Tr. at 611-13. To treat the constipation, Plaintiff was told she could cut the dosage of narcotic medication in half and use as needed for pain control. Tr. at 612.
On April 5, 2017, Plaintiff saw Dr. Gill for a wound check. Tr. at 295-98. On April 12, 2017, Plaintiff was given work restrictions beginning April 13. She was to avoid lifting over ten pounds; no excessive or repetitive bending, twisting. or stooping; ability to change positions as needed; no more than four hours per day. Tr. at 299.
On August 9, 2017, Plaintiff saw Dr. Gill. Tr. at 304-09. Plaintiff was released to return to work without restriction . Tr. at 304.
Keep in mind that Plaintiff's alleged onset of disability is February 15, 2018.
On August 24, 2017, Plaintiff saw Dr. Becht because she had noticed a painful, firm and enlarging breast mass. Tr. at 606-07, The doctor ordered a mammogram. Tr. at 607.
On October 19, 2017, Plaintiff saw Dr. Becht with complaints of low back pain which radiated to the anterior and posterior thigh, left and lower leg, and left and right foot. Tr. at 605-05. The doctor encouraged Plaintiff to discuss her pain with her neurosurgery team, but Plaintiff reported that she didn't feel they did a good job for her. Tr. at 605.
On October 30, 2017, Plaintiff was seen at an emergency room with complaints of back pain. Tr. at 617-22. Plaintiff reported that the day before, she bent over and heard a pop. Although she could walk without difficulty or gait changes, Plaintiff felt the pain was intense. She took Flexeril but did not get relief. Tr. at 617. It was determined that the cause of Plaintiff's pain was likely a muscle strain causing worsening of lumbar radicular pain. Tr. at 618.
On November 10, 2017, Plaintiff saw Vanessa Kay Cook, M.D. at Cass County Health System for consultation regarding weight loss. Tr. at 481-83. Plaintiff's height and weight were recorded as 5’4", 259 lbs. for a body mass index of 44.46 kg/m2. Tr. at 482.
On December 2, 2017, Plaintiff was seen in the emergency room with complaints of nausea and vomiting. Plaintiff had just begun taking oxycodone for chronic back pain following surgery. Tr. at 483
On December 5, 2017, Ric E. Jensen, M.D., Ph.D., wrote a letter to Edna Becht, D.O. Dr. Jensen saw Plaintiff on December 1, 2017, regarding a "greater than 5 year history of recurrent back pain." The doctor wrote that Plaintiff's current functional capacity was significantly reduced relative to what would be considered normal for her age. The doctor noted positive findings including reduced range of motion throughout all planes of motion of the lumbosacral spine. Tr. at 473. The doctor ordered a CT scan. Tr. at 474.
On December 7, 2017, Plaintiff underwent a CT lumbar scan which showed the surgical hardware at L4-L5 but was otherwise normal. Tr. at 476-77.
On December 13, 2017, Plaintiff saw Dr. Cook for weight loss. Plaintiff had been prescribed Phentermine, and she reported a seven-pound weight loss. Tr. at 488. Plaintiff's body mass index was 43.43. Tr. at 489.
On January 6, 2018, a Three Phase Bone Scintigraphy showed:
No focal blood pooled abnormality is seen. There is focal low-grade increased activity at the L4/L5 disc space the right facet and lamina at L4/L5, and the inferior aspect of the left sacroiliac joint. There also appears to be a by pedicular internal fixation support rods across the L5/L5 disc space. Distribution of activity elsewhere is within normal limits.
Tr. at 475.
On January 19, 2018, Plaintiff saw Dr. Jensen. The doctor recommended a surgery and Plaintiff agreed. Tr. at 471-72. Dr. Becht performed a preoperative physical February 12, 2018. Tr. at 490-95. Plaintiff underwent surgery on February 15, 2018. Tr. at 469-70.
On March 23, 2018, Dr. Jensen wrote that he was satisfied that Plaintiff was experiencing a positive response to the lumbar fusion. Tr. at 463.
On March 26, 2018, Plaintiff saw Angela Weppler, M.D. with complaints of pain in the right lower leg and dorsal aspect of the right foot. Tr. at 495-98. An ultrasound doppler exam did not show evidence of deep vein thrombosis. Tr. at 576.
On April 6, 2018, Plaintiff saw Dr. Jensen. Although Plaintiff tolerated the surgery, she was having intermittent right sided L5 lumbosacral radiculopathic symptoms in the right lower extremity, raising concern for continued follow up. Tr. at 461-62. X-rays showed the fusion and posterior spinal stabilization changes from L4 to S1 and left-sided lumbosacral pseudoarthrosis. Tr. at 456.
On April 19, 2018, Plaintiff underwent a CT scan of the lumbar spine. Tr. at 687. The study showed: 1) status post L4 S1 instrumented posterior fusion as well as L4-L5 and L5-S1 discectomies and posterior decompression, No evidence of hardware complication; 2) Lumbar degenerative changes but no significant spinal canal stenosis. Tr. at 688.
On May 8, 2018, Plaintiff was three months post surgery. Dr. Jensen wrote that Plaintiff's functional capacity had improved but that she struggled with mild pain radiating into her right gluteal and the posterolateral thigh region. Plaintiff was to continue taking Neurontin and oxycodone. Tr. at 460.
On June 6, 2018, Plaintiff saw Dr. Becht with complaints of vomiting and migraine headache. Tr. at 498-501.
On June 15, 2018, Plaintiff saw Benjamin Howard, D.O., for problems sleeping. Tr. at 502-04. Dr. Howard advised Plaintiff that the problem was her back pain, not a sleep problem. He advised Plaintiff to decrease her caffeine intake and to take her muscle relaxants before bed. Tr. at 504.
On July 5, 2018, Plaintiff saw Dr. Jensen, Plaintiff continued to complain of right lower extremity radiculopathic symptoms which had resulted in a mild loss of functional capacity. The doctor ordered an electrophysiologic study of the right lower extremity. Tr. at 458-59. X-rays taken on July 15, 2018, showed: 1) no acute abnormality; 2) mild degenerative change inferior right sacroiliac joint; 3) L4-S1 interbody fusion and posterior spinal stabilization. Tr. at 579. X-ray of the right ankle did not show any abnormality. Tr. at 581.
On July 18, 2018, Plaintiff saw Ann Marie Wieseler, ARNP with right ankle, right hip and right back pain. Plaintiff reported that she had been at a lake, slipped and fell on her right side. Tr. at 504. X-rays did not show any fractures or dislocation. Tr. at 507. Ms. Wieseler opined that Plaintiff was having radicular pain exacerbated by the fall. She advised Plaintiff to continue with her prescribed medication and to add meloxicam. Tr. at 509.
On August 3, 2018, Plaintiff saw Dr. Jensen. Plaintiff's radicular symptomatology failed to respond to extended conservative treatment measures. The doctor noted that the electrophysiologic studies showed the presence of a chronic, right L4 v. L5 lumbosacral radiculopathy, and chronic denervation affecting the right anterior tibialis musculature. A high resolution CT scan in April (Tr. at 450-51) showed what appeared to be probable foraminal stenosis on the right at L5-S1 lumbosacral segment. Because the symptoms failed to respond to conservative treatment including physical therapy and medication, the doctor recommended a limited right L5-S1 lumbosacral neural foraminotomy and decompression with reinsertion of the spinal hardware. Tr. at 452-53. Dr. Howard performed a preop examination on August 31, 2018. Tr. at 510-14. Surgery was performed September 4, 2018. Tr. at 448-49. Plaintiff was discharged from the hospital on September 7, 2018. Tr. at 443.
On September 12, 2018, Plaintiff was seen at the emergency department with complaints of shortness of breath, nonproductive cough, chest tightness, fatigue and "just not feeling well." Tr. at 514. Chest x-rays were normal. Tr. at 581-82. A CT angiogram showed: 1) no pulmonary embolism ; 2) small benign-appearing soft tissue nodules right and left lung; 3) mild to moderate bilateral hilar adenopathy ; 4) residual thymic tissue anterior mediastinum; 5) Small hiatal hernia ; 6) previous cholecystectomy ; 7) moderate constipation. Tr. at 583. Plaintiff was advised to schedule an appointment with Dr. Becht. Tr. at 521.
On October 5, 2018, Plaintiff was seen at the emergency department with complaints of increased back pain. Tr. at 521. Plaintiff reported that her pain became worse over the previous one and a half weeks. In the emergency room Plaintiff was given an injection of morphine. Tr. at 522. X-rays showed: 1) status post L4-S1 discectomies and instrumented fusion without radiographic evidence of complication; 2) no evidence of aggressive osseous lesion/bony destruction. Tr. at 584. A CT scan showed: 1) small midline soft tissue collection; 2) postoperative changes. Dr. Jensen was contacted, and he recommended medrodosepack and arranged to see Plaintiff the following week. Tr. at 523.
On October 12, 2018, at 1:36, a.m., Plaintiff was seen at the emergency department for migraine. Tr. at 526-30. Plaintiff saw Ms. Weppler on October 13, 2018. Tr. at 530-34. It was noted that Plaintiff had a sinus infection which might be the cause of the migraine. Tr. at 533.
On October 26, 2018, Plaintiff saw Dr. Jensen. The doctor wrote that Plaintiff had responded nicely to the surgery. Plaintiff reported minimal symptomatology within the right lower extremity. He pre-operative back pain also improved significantly. Tr. at 442.
On November 2, 2018, Plaintiff saw Dr. Jensen. Plaintiff's symptoms and functional capacity were improving. Nevertheless, Plaintiff was to continue taking Oxycontin, engage in independent physical therapy and limit overall lifting and twisting activities. The doctor also prescribed Cymbalta to assist in symptom management. Tr. at 441.
On November 7, 2018, Plaintiff saw Blanca L. Marky, M.D., for migraine. The doctor prescribed amitriptyline and ibuprofen. Tr. at 1316.
On December 7, 2018, Plaintiff saw Dr. Jensen. In spite of a significant reduction of the right sided low back pain, Plaintiff was struggling with recurrent symptoms in both lower extremities. Plaintiff continued to have a mild degree of residual L5 radicular symptoms. The doctor wrote that Plaintiff's overall level of residual symptoms has remained problematic. The doctor recommended a post-operative MRI to rule out the development of any occult post-operative changes. The doctor noted that the neurological examination showed a reduced range of motion throughout all planes of motion in the lumbosacral spine. Tr. at 439-40. X-rays of Plaintiff's cervical spine showed: 1) retrolisthesis C2 on C3, C3 on C4, and C4 on C5; 2) mild C4-C5 and C5-C6 degenerative disc disease. Tr. at 586.
The MRI was taken on December 21, 2018. Tr. at 437-38. In a report dated January 29, 2019, Dr. Jensen wrote that the MRI (Tr. at 587-88) showed no evidence of spinal stenosis /canal narrowing or narrowing of the neural foramen. He wrote that the fusion construct demonstrated no evidence of complications or significant abnormality. The doctor noted that Plaintiff reported that she experienced improvement in her right lower extremity symptoms over the previous three to four weeks. Tr. at 435.
On February 14, 2019, Plaintiff was seen at the emergency room after falling in the tub. Tr. at 534-41, A CT scan dated February 14, 2019, showed, among other things, a mild diffuse disc bulge at L3-4, and a 3 mm non-obstructing stone in an upper pole calyx of the left kidney. Tr. at 433-34.
On March 19, 2019, Dr. Jensen wrote that he was satisfied with the appearance of the fusion. Plaintiff's lower extremity neurological examination was normal. Plaintiff maintained with a mild degree of restricted range of motion in the lumbosacral spine. Plaintiff reported subjective symptoms of vague, proximal right lower extremity aching pain when she stands or walks for extended periods of time. The doctor saw no evidence of a nerve root lesion. The doctor encouraged Plaintiff to maintain control of her weight. Plaintiff was encouraged to maintain independent physical therapy and to restrict her overall heavier physical lifting activities. Tr. at 853.
On April 8, 2019, State agency medical consultant Jan Hunter, D.O., opined the Plaintiff retains the residual functional capacity to lift 10 pounds occasionally, less than ten pounds frequently, stand/walk for two hours and sit for 6 hours. Dr. Hunter also opined that Plaintiff can occasionally perform activities such as climbing stairs/ramps, balancing, bending at the waist bending at the knees, kneeling, and crawling. Tr. at 77-78. The severe impairments that were considered were spine disorders and migraines. Tr. at 76.
On April 9, 2019, Plaintiff received an epidural steroid injection. Tr. at 700.
On April 20, 2019, Plaintiff saw Ms. Weppler for migraine. Tr. at 783-86. On April 22, 2019, Plaintiff saw Dr. Becht. Plaintiff reported that she had been falling. Plaintiff reported "horrible migraines. Tr. at 787. On April 23, 2019, Plaintiff saw Mark Holmberg, M.D. for a 24-hour Holter monitor. Tr. at 790. The study showed: 1) sinus rhythm with average rate of 85 beats per minute; 2) rare single premature ventricular complexes ; 3) rare premature atrial complexes with 3 pairs of PACs; 4) symptoms of palpitations and dizziness associated with sinus rhythm and sinus tachycardia. Tr. at 791.
On May 2, 2019, Plaintiff saw Abby Laverty, R.N. at the request of Dr. Becht for the history of low back pain. Tr. at 791-98. Consideration was given to physical therapy and weight loss (Plaintiff's body mass index was 45.01 – Tr. at 791) and possible Epidural Steroid injections. Tr. at 798. Plaintiff received an injection on May 9, 2019. Tr. at 798-99.
On May 13, 2019, Plaintiff saw Daniel Vogel, PT. Tr. at 800-02. Plaintiff was to be seen for physical therapy two to three times per week for as long as eight weeks. Tr. at 802. Plaintiff was seen for one session of physical therapy, but she missed the next appointment and cancelled the rest. Tr. at 803.
On May 17, 2019, Barbara Johnson, RN, noted that Plaintiff had been seen at the pain clinic the week before. Plaintiff reported that her pain was not under control: "Hurts in her low back, radiates into her hip/pelvis and down legs bilat." Tr. at 804.
On May 29, 2019, Dr. Jensen wrote that he had recently seen Plaintiff. The doctor wrote that Plaintiff's lower extremity motor strength examination was normal. The doctor wrote that he had an extensive discussion about her ability to perform physical activity: "This is in association with her ongoing issues related to her subjective, referred symptoms into her lower extremities." The doctor recommended that Plaintiff undergo an outpatient electrophysologic study of both lower extremities. Tr. at 874.
On June 17, 2019, Plaintiff saw Tamara S. Bireline, ARNP. Plaintiff reported that her leg gave out and she fell, hit her head on the door jam and landed on her buttocks. The day before, Plaintiff had developed a migraine. Tr. at 809. X-rays of Plaintiff's sacrum and coccyx, and lumbosacral spine showed: 1) questionable lucency at the sacrococcygeal junction may represent nondisplaced fracture and/or normal variant; 2) no acute lumbar compression fracture ; 3) status post L4-S1 spinal fusion, discectomies, and posterior decompression without evidence of complication. Tr. at 701. Plaintiff saw Dr. Becht on June 21, 2019. Tr. at 1010-13. Dr. Becht noted some fluid in the right middle ear that could explain Plaintiff's subjective symptoms of dizziness. Tr. at 1013.
On June 23, 2019, Plaintiff was seen at the emergency room complaining of tremors/shakes. Plaintiff reported that she noticed a tremor in her right hand that morning, and in the afternoon both her arms began to shake quite vigorously. Tr. at 1015. A CT of Plaintiff's head was reported to be normal without mass lesion, acute infarct or hemorrhage. Tr. at 929. A CT of the cervical spine showed: 1) straightening of the normal cervical lordosis without fracture, or listhesis; 2) C4-C5, mild central canal stenosis, and moderate right and mild left foraminal stenosis; 3) C6-C7, mild central canal stenosis, and mild bilateral foraminal stenosis; 4) mild central canal stenosis, and mild right without significant left foraminal stenosis. Tr. at 930-31.
On June 24, 2019, Plaintiff was seen at an emergency room complaining of tremors for two or three days. The tremors were in the upper extremities and were involuntary. Tr. at 959. On examination, Plaintiff was described as a well-appearing middle-aged female with tremor to bilateral upper extremities that is distractible. Tr. at 962. Plaintiff was advised to follow up with her primary care physician and with neurology. Tr. at 963.
On June 25, 2019, Plaintiff saw Dr. Becht. Tr. at 1021-25. After examination, Dr. Becht wrote: "In my opinion, this tremor lacks internal consistency and I have a high suspicion for conversion or somatic disorder." However, given Plaintiff's history, the doctor added that "... this may represent a true pathology." The doctor ordered an MRI and a referral to neurosurgery. Tr. at 2024. On June 25, 2019, at 10:52 p.m., Plaintiff was seen at the emergency room complaining of tremors. Tr. at 1025-30. Plaintiff was given two injections of antivan which relieved the tremors. On discharge, she was still having tremors, but they were less severe. Tr. at 1029.
On June 26, 2019, Plaintiff went to the emergency room again complaining of tremors and jerking muscle movements. Tr. at 952. Plaintiff stated that the tremor had been "generally disabling." Plaintiff's mother showed the doctor a video of Plaintiff sitting on a couch having tremor all over her body. The doctor also noted that Plaintiff continued to "struggle very significantly with chronic pain issues." Tr. at 955.
On June 26, 2019, Plaintiff was seen at UNMC Neurology. Tr. at 1073-87. The assessment was functional tremor and chronic pain disorder. Brian Westerhula wrote: Numerous characteristics as documented below much more compatible with functional tremor. Just by the bizarre and inconsistent appearance of the tremor in observation this appears very functional. However, with numerous provocative maneuvers, distraction, and entraining techniques, tremor abated or entrained." The doctor wrote that his suspicion was that the tremor was functional or psychogenic. Tr. at 1081.
On July 2, 2019, Plaintiff saw Dr. Becht with a three-day history of migraine. Tr. at 1030-32. Plaintiff was given an injection of Toradol. Tr. at 1032.
An MRI of the cervical spine dated July 9, 2019, (Tr. at 931-33) showed: 1) C4-C5, mild central disc protrusion does abut and minimally deform the ventral surface of the cervical spinal cord. Mild spinal stenosis secondary to this central disc protrusion. Moderate bilateral neural foraminal stenosis; 2) C6-C7 Left posterolateral disc protrusion causes moderate-severe left neural foraminal stenosis; 3) C5-C6 mild central disc protrusion; 4) C3-C4 mild central/right paracentral disc protrusion; 5) normal enhancement of the cervical and visualized portions of the thoracic spinal cord. No evidence of an MS plaque; 6) straightening of the normal cervical lordotic curve secondary to degenerative disc disease at C3 through C7. Tr. at 933.
On July 10, 2019, Plaintiff went to the emergency room for worsening tremors. She had used all her valium. Plaintiff also complained of a migraine. Tr. at 1033-38,
On July 19, 2019, Plaintiff went to the emergency room with tremors. Tr. at 1145-50.
On July 24, 2019, Plaintiff saw Jamison M. Hofer, M.D., who wrote: "Multiple ‘tremor’ episodes noted during patient's clinic visit. Patient displays arm and shoulder shaking that is irregular and inconsistent, and clearly distractible. High suspicion for functional tremor...." Tr. at 1172.
On August 1, 2019, Plaintiff saw Dr. Becht. Tr. at 1188-90. Plaintiff requested a second neurology referral. Plaintiff was concerned that her frequent falls might be indicative of multiple sclerosis because of a family history of the illness. Tr. at 1188. Dr. Becht opined that it would be wise for Plaintiff to be seen at the University of Iowa Hospitals and Clinics before coming to a diagnosis of somatization disorder. Tr. at 1190.
On August 17, 2019, State agency medical consultant Dennis Weis, M.D. evaluated Plaintiff's claim on Reconsideration. The doctor affirmed the finding made by Dr. Hunter. Tr. at 92-94. Dr. Weis, however, did not examine Plaintiff but only reviewed the records of her medical treatment.
On September 1, 2019, Plaintiff was seen at the emergency room. She was getting up from a recliner and felt a pop after which she felt increasing back pain. Tr. at 1348-53. Plaintiff was given an injection of Toradol. Tr. at 1353. X-rays did not show a fracture. Tr. at 1399. Plaintiff saw Abby Laverty, RN on September 6, 2019, to follow up on the emergency room visit. Tr. at 1353.
In a letter dated September 16, 2019, Dr. Jensen wrote that he saw Plaintiff on September 6 in routine follow up. The doctor noted that Plaintiff continued to have a moderate degree of low back pain when performing heavier physical activities. The doctor noted that Plaintiff has developed a congenital pseudoarthrosis with the rostral aspect of the right sacral ala. In addition, the doctor noted that Plaintiff developed a tremor syndrome in both upper extremities of uncertain etiology. Plaintiff reported that she was being evaluated by a neurologist at the University of Iowa with which he agreed. Tr. at 1395.
On September 18, 2019, an MRI of Plaintiff's brain did not show evidence of acute infarct, hemorrhage, or mass lesion. The study showed benign developmental venous anomaly in the right mid frontal lobe, and mucosal thickening in several bilateral ethmoid air cells and bilateral maxillary sinuses. Tr. at 1400.
On October 2, 2019, Plaintiff was seen at the emergency room after falling on her tail bone onto a wooden deck. Tr. at 1356-61. X-rays did not show an acute fracture. Tr. at 1401. Plaintiff was given an injection of Toradol. Tr. at 1358.
On October 8, 2019, Plaintiff saw Tracey A. Cho, M.D. at the University of Iowa Hospitals and Clinics, for arm tremors. Tr. at 1361-66, 1410-20. After the examination, Plaintiff was reassured that the symptoms and imaging are not consistent with any progressive neurological disease such as Multiple Sclerosis or Parkinson disease. Tr. at 1366.
On October 15, 2019, a chest x-ray did not show acute cardiopulmonary process. Tr. at 1402.
On October 18, 2019, Plaintiff saw Dr. Jensen. Although Plaintiff neurological examination was normal, the doctor noted that Plaintiff has subjective symptoms which were problematic for her. The doctor noted that Plaintiff had developed "a degree of narcotic tolerance secondary to her long term use of narcotics." The doctor noted that he told Plaintiff that her symptom complex remained under investigation, but the doctor did not anticipate additional surgery. The doctor suggested a thoracic dorsal column spinal cord stimulator for chronic pain management. Tr. at 1397. The doctor also noted that the evaluation at the University of Iowa indicated that "she likely harbors an essential versus functional tremor within her right upper extremity." No further testing was indicated and there was no diagnosis of multiple sclerosis or other neurological disease. Tr. at 1398.
On October 30, 2019, Plaintiff was seen in the emergency room after falling down approximately six steps, landing on her buttocks and back, and sliding down to the floor. Tr. at 1373-79. X-rays did not show any fracture or subluxation. Tr. at 1375, 1403-04.
On November 15, 2019, Plaintiff underwent a bone scan that showed typical postsurgical changes of the lumbar spine. Tr. at 1332.
On December 11, 2019, Plaintiff underwent a myelogram of the lumbar spine. Tr. at 1335-37. The study showed: 1) extensive postoperative changes within the lumbar spine; 2) no significant degenerative disc disease, central canal narrowing, or nerve root impingement within the central canal of the lumbar spine; 3) posterior lateral disc disease and spondylitic ridging as well as facet arthropathy of the lower lumbar spine contributing to neural foraminal narrowing most notably at the L4-5 level where there is additional associated abutment of the exiting L4 nerve roots. Tr. at 1336.
At 2:25 a.m., on December 12, 2019, Plaintiff was seen at the emergency room with neck pain attributed to the myelogram. Tr. at 1379-86. Plaintiff was given an injection of morphine and valium. Tr. at 1382. At 4:52 p.m., Plaintiff returned to the emergency room complaining of persistent headache. Tr. at 1386-92. Dr. Jensen was consulted, and he recommended a Medrol Dosepak. Tr. at 1389.
On February 1, 2020, Plaintiff was seen at the emergency room. Tr. at 1422-27. Plaintiff complained of blurred vision in her left eye. Tr. at 1422. Plaintiff was advised to go to the emergency room at University of Nebraska Medical Center where an ophthalmologist could be consulted. Tr. at 1425. At the Nebraska Medical Center, Plaintiff saw Deepta Ghate, M.D. Tr. at 1456. After the examination, Dr. Ghate diagnosed an acute decrease in vision in Plaintiff's left eye, and dry eye. The doctor wrote: DDX: Retrobulbar demyelinating disease after the PPRF so pt does not have RAPD, functional disease, Uveitis syndrome not evident on basic exam." The doctor recommended: 1) a neurology consultation for further work up ocular issues; 2) an MRI with and without contrast to the orbit to further investigate potential retrobulbar causes of vision loss: 3) outpatient ophthalmology exam. Tr. at 1460.
After seeing Dr. Ghate, Plaintiff saw Daniel A. Crespo Artunduga, M.D. in neurology. Tr. at 1461-67. After the examination, the doctor wrote: "Although initially when evaluated by ophthalmology she had intact visual acuity on the right eye and decreased visual acuity on the left eye, when dilated and with eyeglasses on my exam she has decreased visual acuity in both eyes that is worse on the right eye. This is inconsistent along with a history of resolving similar events (although not as worse as this one)." The doctor wrote that given the normal MRI (Tr. at 1466) the fluctuating visual acuity exam, the alternating between eyes of the symptoms and the almost complete resolution of her symptoms, he would favor a functional etiology for Plaintiff's visual issues. Tr. at 1467.
On February 3, 2020, Plaintiff went to the emergency room complaining of a spasm in her cheek and left eye. Tr at 1227-31. On examination there was a very mild conjunctival injection on the left eye. Tr. at 1429. Plaintiff was advised to schedule an appointment as soon as possible with optometry. Tr. at 1431.
On February 5, 2020, Plaintiff saw Daniel Vogel, PT. Tr. at 1431-35. Plaintiff complained of falls – "Two this week, probably 5 in the past month. She had one fall today." Plaintiff reported that sometimes her left leg will buckle but frequently she loses balance. Tr. at 1432. Mr. Vogel opined that Plaintiff would benefit from skilled physical therapy and recommended that Plaintiff be seen two times a week for eight weeks. Tr. at 1434.
On February 16, 2020, Plaintiff was seen at the emergency room for a migraine. Tr. at 1435-41.
On February 26, 2020, Plaintiff was seen at Midwest Pain Clinic to discuss a spinal cord stimulator. Tr. at 1445-48. Plaintiff was referred for a psychiatric evaluation for the spinal cord stimulator after which she would be set up for a trial with the device. Tr. at 1447,
On April 1, 2020, Plaintiff saw Kaitlyn M. Brittan, M.D., and Amy C. Cannelia, M.D. Tr. at 1483-88. Dr. Brittan wrote that Plaintiff had several indications that were suspicious for ankylosing spondylitis but more data was needed before treatment would begin. Tr. at 1485-86.
On April 6, 2020, Plaintiff saw Syed Sattar, M.D. for a psychiatric evaluation prior to the spinal cord stimulator. Tr. at 1490-93. The doctor recommended the procedure for Plaintiff. Tr. at 1493.
ADMINISTRATIVE HEARING
At the hearing (Tr. at 51-69) after Plaintiff testified, the ALJ called Stephen Schill to testify as a vocational expert. Tr. at 64. In response to the ALJ's first and second hypothetical questions (the two questions mirror the residual functional capacity finding) the vocational expert identified three examples of unskilled sedentary jobs. Tr. at 64-65. In response to questions from Plaintiff's attorney, the vocational expert testified that the need to be off task more than ten percent of the time would preclude competitive employment. Tr. at 66, 67. The vocational expert testified that more than two absences per month would also preclude competitive employment.
DISCUSSION
We will affirm the ALJ's decision "[i]f the ALJ's findings are supported by substantial evidence on the record as a whole," an inquiry that requires us to consider evidence in the record that detracts from the ALJ's decision. Wagner v. Astrue , 499 F.3d 842, 848 (8th Cir. 2007). "Substantial evidence is less than a preponderance but is enough that a reasonable mind would find it adequate to support the decision." Reutter ex rel. Reutter v. Barnhart , 372 F.3d 946, 950 (8th Cir. 2004).
We will not reverse the ALJ's "denial of benefits so long as the ALJ's decision falls within the ‘available zone of choice.’ " Bradley v. Astrue , 528 F.3d 1113, 1115 (8th Cir. 2008) (quoting Nicola v. Astrue , 480 F.3d 885, 886 (8th Cir. 2007) ). The decision of the ALJ "is not outside the ‘zone of choice’ simply because we might have reached a different conclusion had we been the initial finder of fact." Id. (quoting Nicola , 480 F.3d at 886 ). Rather, "[i]f, after reviewing the record, the court finds it is possible to draw two inconsistent positions from the evidence and one of those positions represents the ALJ's findings, the court must affirm the ALJ's decision." Goff v. Barnhart , 421 F.3d 785, 789 (8th Cir. 2005).
Owen v. Astrue , 551 F.3d 792, 798 (8th Cir. 2008). In Brand v. Secretary of Dep't of Health, Education and Welfare , 623 F.2d 523, 527 (8th Cir. 1980), Chief Judge Lay wrote that Universal Camera Corp. v. NLRB , 340 U.S. 474, 71 S. Ct. 456, 95 L. Ed. 456 (1951), is "the guideline for the evaluation of the standard of review." In Universal Camera , the Court wrote:
We conclude, therefore, that the Administrative Procedure Act and the Taft-Hartley Act direct that courts must now assume more responsibility for the reasonableness and fairness of Labor Board decisions than some courts have shown in the past. Reviewing courts must be influenced by a feeling that they are not to abdicate the conventional judicial function. Congress has imposed on them responsibility for assuring that the Board keeps within reasonable grounds. That responsibility is not less real because it is limited to enforcing the requirement that evidence appear substantial when viewed, on the record as a whole, by courts invested with the authority and enjoying the prestige of the Courts of Appeals. The Board's findings are entitled to respect; but they must nonetheless be set aside when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both.
340 U.S. at 490, 71 S.Ct. 456. In reviewing disability decisions from the Social Security Administration, the Court sits in an appellate capacity and is responsible for giving the agency decision a scrutinizing analysis. This requires the Court to determine the substantiality of the evidence by determining if the ultimate decision is supported by substantial evidence on the record as a whole. Gavin v. Heckler , 811 F.2d 1195, 1199 (8th Cir. 1987). In Gavin , the Court wrote:
In the review of an administrative decision, "[t]he substantiality of evidence must take into account whatever in the record fairly detracts from its weight."
Thus, the court must also take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory. It follows that the only way a reviewing court can determine if the entire record was taken into consideration is for the district court to evaluate in detail the evidence it used in making its decision and how any contradictory evidence balances out.
Id. (citations omitted).
In short, a reviewing court should neither consider a claim de novo, nor abdicate its function to carefully analyze the entire record. Wilcutts v. Apfel , 143 F.3d 1134, 1136-37 (8th Cir. 1998) (citing Brinker v. Weinberger , 522 F.2d 13, 16 (8th Cir. 1975) ).
The most important issue in any disability case that proceeds beyond step three of the sequential evaluation is that of residual functional capacity:
Probably the most important issue will be the question of [residual functional capacity] ... The RFC that must be found ... is not the ability merely to lift weights occasionally in a doctor's office; it is the ability to perform the requisite physical acts day in and day out, in the sometimes competitive and stressful conditions in which real people work in the real world.
McCoy v. Schweiker , 683 F.2d 1138, 1147 (8th Cir. 1982) (en banc).
For reversal, Plaintiff argues: 1) The ALJ did not articulate sufficient reasons for how persuasive the ALJ found Dr. Jensen's treating surgeon opinions; 2) The ALJ erred by not fully and fairly developing the record concerning "some medical evidence" support for the residual functional capacity; 3) the ALJ did not provide good reasons for finding Plaintiff was not credibly reporting her limitations; 4) the ALJ that decided Plaintiff's claim was not constitutionally appointed as Ms. Berryhill's reappointment attempt was not effective. ECF No. 14. The first three of these issues are related and hinge on a proper evaluation of Dr. Jensen's opinion.
Plaintiff bears the burden of establishing her residual functional capacity. Kraus v. Saul , 988 F.3d 1019, 1024 (8th Cir. 2021) citing Baldwin v. Barnhart¸ 349 F.3d 549, 556 (8th Cir. 2003). To meet this burden, Plaintiff requested an opinion from the surgeon who performed two of her three back surgeries. April 30, 2020, Ric E. Jensen, M.D., Ph.D. responded to the request. Tr. at 1495-96. The doctor noted that Plaintiff had undergone a surgery performed by another physician, and that he (Dr. Jensen) had performed two posterior lumbar operations in the previous three years. The doctor opined that Plaintiff is not capable of performing more than sedentary work for more than two to three hours per day, maximum. The doctor noted that Plaintiff's gait capacity and duration are significantly limited secondary to her physical functional capacity decline which has resulted from her prior operative procedures and lumbar spinal pathology. The doctor wrote that Plaintiff's impairment(s) have resulted in pain with radiation into the hips and gluteal regions "... in association with persistent, right-sided lumbosacral spinal radiculopathic symptomatology within her right lower extremity (productive of sensory abnormalities and focal weakness in the right ankle dorsiflexion and overall gait stability thereof)." The doctor opined that Plaintiff's condition was not going to improve. Tr. at 1495. The doctor noted that Plaintiff takes narcotic medication which produces sedation through the day. The doctor opined that if Plaintiff were working, she would likely miss two or more days per month "secondary to back pain/fatigue exacerbations and limitations of her functional capacity which can erupt spontaneously after performing more extensive physical activity (even at a sedentary level of functional capacity)." The doctor concluded his report by noting that his statements were "... made based upon my multiple, follow up and sequential examination/assessments of Shannon in the clinical setting." The doctor noted that he had followed Plaintiff's since December 1, 2017 and saw her most recently on February 7, 2020. Tr. at 1496.
The ALJ considered Dr. Jensen's report. Tr. at 19-20. The ALJ noted that the restrictions are "... a significant departure from the post-surgical limitations imposed by Dr. Jensen which were either very vague or referred to ‘heavier physical lifting activities.’ " Tr. at 20.
The ALJ cited a letter from Dr. Jensen to Edna Becht, D.O. dated January 29, 2019. Plaintiff had recently undergone "an adjunctive surgical procedure to evaluate her lumbar fusion and decompress her right L5 and first sacral lumbosacral nerve roots." Dr. Jensen noted that an MRI dated December 21, 2018 showed no evidence of spinal stenosis /canal narrowing or narrowing of the neural foramen. The fusion, extending from L4-5 through L5-S1, demonstrated no evidence of complications or significant abnormality. The doctor noted that Plaintiff's lower extremity neurological examination remained normal with regard to sensory and motor function. There was no evidence of a nerve root tension sign in either lower extremity. Plaintiff reported improvement in her right lower extremity radiculopathic symptoms over the previous three to four weeks. The doctor wrote that no aggressive therapy other than "independent back strengthening exercises and limitation of physical activities." Tr. at 435-36.
On March 19, 2019, Dr. Jensen wrote to Dr. Becht after Plaintiff was seen "approximately 6 months post-operative upon completion of her posterior lumbar instrumented fusion/arthrodesis procedure." A CT scan showed excellent appearance of the fusion construct with no complicating features identified. "I can define no significant pathology in either of the sacroiliac joints or at the L3-4 lumbar segment ..." Plaintiff's lower extremity neurological examination was normal. Plaintiff maintained a mild degree of restricted range of morion with her lumbar spine. Plaintiff reported subjective symptoms of vague, proximal right lower extremity aching pain when standing or walking for extended periods of time. The doctor wrote that Plaintiff had no evidence of a nerve root tension sign in either lower extremity. Plaintiff was encouraged to maintain independent physical therapy and to restrict her overall heavier physical lifting activities. Tr. at 1322.
The ALJ wrote that Dr. Jensen rarely, if ever, cited to specific objective evidence to support his conclusions regarding physical abilities or the limitations he imposed. The ALJ noted that the doctor's narrative cites to many abnormalities that are not documented in his treatment notes from 2019 and 2020. For example, the ALJ found no mention in treatment notes of gait abnormalities, loss of strength, or sensory abnormalities and focal weakness in right ankle dorsiflexion and overall gait stability thereof. To the contrary, the ALJ noted that the treatment notes contain findings of full lower extremity strength and record that neurological, sensory, and motor examinations were normal.
The ALJ noted that he could find no indication in Dr. Jensen's treatment records that significant functional limitations were recommended.
The ALJ noted that Dr. Jensen's opinion was also inconsistent with other objective medical evidence in the record: 1) his opinions are inconsistent findings of full or near full strength and sensation; 2) his opinions are inconsistent with only isolated findings of acute distress. visible discomfort or other pain behavior; 3) there were no findings that Plaintiff appeared to be in pain while sitting or that she changed positions frequently during medical encounters; 4) "Notably, the absence of such findings and the evidence of full strength and sensation are quite inconsistent with Dr. Jensen's earlier opinion in the form of post-surgical restrictions."
The ALJ wrote: "In summary, except for post-surgical restrictions, the opinions of Dr. Jensen are inconsistent with the overall medical evidence of record. They are also lacking in support. Therefore, the undersigned finds Dr. Jensen's opinions to be unpersuasive." Tr. at 20.
Plaintiff argues that a residual functional capacity finding must be supported by a treating or examining source opinion. ECF 14 at 25 citing Nevland v. Apfel , 204 F.3d 853, 858 (8th Cir. 2000), and Casey v. Astrue , 503 F.3d 687, 697 (8th Cir. 2007). Claims filed after March 27, 2017, are governed by 20 C.F.R. § 404.1520c(a) - (b). Id. Plaintiff argues that failure to provide a sufficient explanation for how persuasive a medical opinion is found to be, is legal error which requires remand. Id. citing Lucus v. Saul , 960 F.3d 1066 (8th Cir. 2020).
Plaintiff cites numerous medical notes which she asserts support Dr. Jensen's "modest opinions concerning, sitting, standing, and walking limitations ..." ECF 14 at 30. Plaintiff argues that Dr. Jensen who performed two of Plaintiff's three back surgeries recognized that Plaintiff would not improve as has been hoped: "That is why the spinal cord stimulator suggested went from an unlikely possible treatment option in May of 2019 to the probable course of action by September of 2019. Id. citing Tr. at 1325 and 1328. Plaintiff argues: "Dr. Jensen, the treating neurosurgeon that performed two surgeries during the relevant period in this failed back surgery syndrome case, provided thoughtful opinions consistent with this record, and the ALJ finding otherwise based on the ALJ's own view of the importance of ‘no acute distress’ and other findings on exam was an improper exercise of the ALJ playing doctor." Id. at 30-31, citing Combs v. Berryhill , 878 F.3d 642, 647 (8th Cir. 2017).
Plaintiff concluded her argument on this point by arguing that the ALJ erred by relying on the opinions of the State agency physicians who had neither treated nor examined Plaintiff. Plaintiff writes: "The ALJ's failure to articulate sufficient reasons for Dr. Jensen's opinions concerning [Plaintiff's] limitations warrant this Court remanding [Plaintiff's] claim ..." Id. at 32.
The Commissioner argues that the ALJ properly evaluated Dr. Jensen's opinion. The Commissioner argues that the ALJ followed the regulations for evaluating medical opinions for applications filed after March 27, 2017 ( 20 C.F.R. § 404.1520c ). The Commissioner argues that the ALJ gave examples from the record that do not reflect the abnormalities of which Dr. Jensen wrote. ECF 17, p. 6. The Commissioner notes that while Dr. Jensen recommended limitation of physical activities for a few months after surgery, thereafter only restrictions on lifting heavy objects. Id. at 7. The Commissioner notes that the ALJ considered inconsistencies between other medical evidence which show full or near full range of motion, strength, and sensation. Id. The Commissioner argues that the ALJ's residual functional capacity finding is consistent with the assessment of the State Agency physicians. Id.
DECISION OF THE COURT
Disability is defined as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment, which can be expected to result in death, or which has lasted or can be expected to last for a continuous period of not less than twelve months. A claimant must have a severe impairment which either meets or equals a listed impairment, or which prevents the claimant from performing past relevant work, and which prevents the performance of any other work. 20 C.F.R. § 404.1505(a).
In order to determine whether a claimant can perform past relevant work or other work (steps 4 and 5 of the sequential evaluation), the residual functional capacity must be established. Residual functional capacity is the most a claimant can do despite his/her limitations. 20 C.F.R. § 404.1545(a). Residual functional capacity is based on all the evidence in the record, but it is a medical question and must be supported by medical evidence. As stated above, a claimant bears the burden to prove residual functional Capacity. Kraus v. Saul , 988 F.3d at 1024.
In Noerper v. Saul , 964 F.3d 738, 744 (8th Cir. 2020), the Court wrote:
Ultimately, the RFC determination is a "medical question," that "must be supported by some medical evidence of [Noerper's] ability to function in the workplace." Combs [v. Berryhill , 878 F.3d 642] at 646 (quoting Steed v. Astrue , 524 F.3d 872, 875 (8th Cir. 2008) ). But, the RFC is a decision reserved to the agency such that it is neither delegated to medical professionals nor determined exclusively based on the contents of medical records. See Ellis v. Barnhart , 392 F.3d 988, 994 (8th Cir. 2005) ("A medical source opinion that an applicant is ‘disabled’ or ‘unable to work’ however, ... is not the type of ‘medical opinion’ to which the Commissioner gives controlling weight."). "[A]lthough medical source opinions are considered in assessing RFC, the final determination of RFC is left to the Commissioner," Id. "based on all the relevant evidence, including the medical records, observations of treating physicians and others, and an individual's own descriptions of [her] limitations," Combs , 878 F.3d at 646 (citation omitted) (alteration in original).
Thereafter, the Court cited the factors for the evaluation of credibility, set forth in Polaski v. Heckler , 739 F.2d 1320, 1322 (8th Cir. 1984). Those factors are: daily activities; the location, duration, frequency, and intensity of your pain or other symptoms; precipitating and aggravating factors; type, dosage, effectiveness, and side effects of any medication; treatment, other than medication, for the relief of pain or other symptoms; measures, such as lying flat on the back, standing for 15 to 20 minutes every hour, sleeping on a board, etc; other factors concerning functional limitations and restrictions due to pain or other symptoms.
The Court wrote: "In general, the agency is to place more weight on the opinions of specialists over generalists where opinions conflict and evidence does not otherwise provide reasons for rejecting the specialist's opinion." Noerper , 964 F.3d at 745, citing 20 C.F.R. § 404.1527(c)(5). For claims filed after March 27, 2017, a new regulation applies. 20 C.F.R. § 404.1520c provides that the agency will not defer or give any specific evidentiary weight to any medical opinion. The regulation states:
When a medical source provides one or more medical opinions or prior administrative medical findings, we will consider those medical opinions or prior administrative medical findings from that medical source together using the factors listed in paragraphs (c)(1) through (c)(5) of this section, as appropriate. The most important factors we consider when we
evaluate the persuasiveness of medical opinions and prior administrative medical findings are supportability ... and consistency ... We will articulate how we considered the medical opinions and prior administrative medical opinions and prior administrative medical finding in your claim according to paragraph (b) of this section.
The new regulation does not relieve a reviewing court of its duty to determine if the final decision of the Commissioner is supported on substantial evidence on the record as a whole.
In Acheampong v. Commissioner of Social Security , 564 F.Supp.3d 261, 267 (E.D. New York September 30, 2021) the Court wrote:
Even though ALJs are no longer directed to afford controlling weight to treating source opinions—no matter how well supported and consistent with the record they may be—the regulations still recognize the "foundational nature" of the observations of treating sources, and "consistency with those observations is a factor in determining the value of any [treating source's] opinion."
Shawn H. v. Comm'r of Soc. Sec. , No. 19-CV-113 (JMC), 2020 WL 3969879, at *6 (D. Vt. July 14, 2020) (alteration in original) (quoting Barrett v. Berryhill , 906 F.3d 340, 343 (5th Cir. 2018) ); see also Brian O. v. Comm'r of Soc. Sec. , No. 19-CV-983 (ATB), 2020 WL 3077009, at *4 (N.D.N.Y. June 10, 2020) (noting that, notwithstanding the "eliminat[ion of] the perceived hierarchy of medical sources," the two most important factors of consistency and supportability "are the ‘same factors’ that formed the foundation of the treating source rule" (quoting Revisions to Rules, 82 Fed. Reg. 5844-01, at 5853 )); Barrett , 906 F.3d at 343 ("[Examining physicians’] observations about an applicant's mental and physical condition are the first building block in the disability determination . They are the primary source that medical consultants and vocational experts use to form their opinions."). Because a treating source examines a claimant directly, they "may have a better understanding of [a claimant's] impairment(s) ... than if the medical source only reviews evidence in [a claimant's] folder." 20 C.F.R. §§ 404.1520c(c)(3)(v), 416.920c(c)(3)(v) ; see also Santiago v. Barnhart , 441 F. Supp. 2d 620, 629 (S.D.N.Y. 2006) (noting in the context of the treating physician rule that "a physician who has a long history with a patient is better positioned to evaluate the patient's disability than a doctor who observes the patient once" (citation omitted)). (Emphasis added)
As to the Commissioner's brief and argument hinting that the standard of review here is "highly" deferential (ECF No. 17, p. 5 n. 2, citing 82 Fed. Reg at 5853, quoting the Administrative Conference of the United States comments to the Commissioner's regulations regarding how to treat medical evidence). The Court does not believe that ACUS accurately reflects Universal Camera and its progeny regarding the duty of reviewing courts.
The Court of Appeals for the Eighth Circuit had noted that "we defer to the ALJ's determinations regarding the credibility of testimony, so long as they are supported by good reasons and substantial evidence. " Boettcher v. Astrue , 652 F.3d 860, 863 (8th Cir. 2011) quoting Pelkey v. Barnhart , 433 F.3d 575, 578 (8th Cir. 2006) (emphasis added). See also Juszczyk v. Astrue , 542 F.3d 626, 631 (8th Cir. 2008), in which the Court wrote: "We defer to the ALJ's well-supported determination that Juszczyk's testimony was not wholly credible." The Court cited Casey v. Astrue , 503 F.3d 687, 696 (8th Cir. 2007) "deferring to the ALJ's credibility finding because the ALJ pointed to substantial evidence in the record supporting her decision to discount the claimant's subjective allegations."
In other words, the Court will defer to the credibility findings if supported by substantial evidence. On the other hand, the final decision of the Commissioner will be affirmed only if it is supported by substantial evidence on the record as a whole. Above, the Court quoted Gavin v. Heckler , 811 F.2d 1195, 1199 (8th Cir. 1987) in which the Court wrote: "[T]he court must also take into consideration the weight of the evidence in the record and apply a balancing test to evidence which is contradictory." Gavin was followed by two other cases which bear mentioning here.
In Jackson v. Bowen , 873 F.2d 1111, 1113 (8th Cir. 1989), the Court, noted that the district court had applied the substantial evidence standard which had been rejected by the Court in Gavin . "Applying the proper standard of "substantial evidence on the record as a whole," we have considered the weight of the evidence relied on by the ALJ and balanced that evidence against the overwhelming contradictory evidence that Jackson suffers from a disabling condition."
In Wilson v. Sullivan , 886 F.2d 172, 175 (8th Cir. 1989), the Court noted that the court below had applied the substantial evidence standard of review. After quoting Gavin v. Heckler , the Court wrote: "While the magistrate paid lip service to the proper standard of review, ... her report indicates that the review was based on the improper standard. The magistrate failed to take into account the weight of the evidence upon which the ALJ relied and to apply a balancing test to any contradicting evidence."
The law regarding the standard of review is well established and clear: A reviewing court will affirm the decision of the agency if the decision is supported by substantial evidence on the record as a whole; the court must take into account the evidence which detracts from, as well as supports, the Commissioner's final decision and apply a balancing test to contradictory evidence. Simply because some substantial evidence detracts from, or supports, the decision is not grounds for reversal or affirmation. If it is possible to draw inconsistent conclusions from the evidence, and one of these conclusions is the Commissioner's decision, that decision will be upheld. A reviewing court will defer to an ALJ's findings of credibility so long as they are supported by good reasons and substantial evidence. Where substantial evidence on the record as a whole supports a finding of disability, reversal is appropriate. The Court now returns to consideration of the case at bar.
In McCoy v. Schweiker , 683 F.3d 1138, 1147 (8th Cir. 1982) (en banc), the Court was asked to determine the validity of the Medical Vocational Guidelines found in 20 C.F.R. Appendix 2 to Subpart P of Part 404. Id. at 1140-41. The Court noted that the regulation under consideration required consideration of several factors the most important of which was residual functional capacity. Id. at 1147. The Court went to discuss other factors set forth in the regulation – age, education, and past work experience – about which the Court wrote: "The other three criteria are less complex than RFC, but they are not so simple as they seem." The Court wrote: "Findings must be made on each of these criteria, and the inquiry will be more or less involved depending on the unique facts of each individual case." Id. at 1147-48. Under 20 C.F.R. § 404.1520c only the factors of supportability and consistency need be articulated by the ALJ. Nevertheless, all the factors set forth will be considered. See , 20 C.F.R. § 404.1520c(c) : "We will consider the following factors when we consider the medical opinions ... in your case." (Emphasis added). The five factors are Supportability, Consistency, Relationship with the claimant, Specialization, and other factors. We will begin by considering the factors articulated by the ALJ followed by the other, perhaps less complex, but no less important factors.
20 C.F.R. § 404.1520c(c)(1) Supportability, states: "The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinions ... the more persuasive the medical opinions ... will be." The ALJ wrote that Dr. Jensen rarely, if ever, cited to specific objective evidence that supported his conclusions. To the contrary, in his report of April 30, 2020, the doctor supported his conclusions regarding Plaintiff's limitations by stating that Plaintiff's limited gait capacity and duration are limited as a result of her prior operative procedures and lumbar spinal pathology. The doctor wrote that Plaintiff's limitations are "... in association with persistent, right-sided lumbosacral spinal radiculopathic symptomatology within her right lower extremity (productive of sensory abnormalities and focal weakness in right ankle dorsiflection and overall gait stability thereof). The doctor noted that Plaintiff's need to change positions is because of the need to restore blood flow to her lumbar paraspinal musculature. The doctor also supported his opinion by noting that Plaintiff takes narcotic medication which produces sedation. In the opinion of the Court, Dr. Jensen adequately supported his opinion with relevant objective evidence.
The other of the two most important factors is consistency. 20 C.F.R. § 404.1520c(c)(2) states: "The more consistent a medical opinion ... is with the evidence from other medical sources ... the more persuasive the medical opinion ... will be." The ALJ wrote: "In particular, his (Dr. Jensen's) opinions are inconsistent with the findings of full or near full strength and sensation. The ALJ cited several medical records, all of which have been summarized in the statement of facts above. The medical records cited by the ALJ, for the most part, are emergency room visits for tremors. One report (exhibit 27F, Tr. at 1490-93) is a psychiatric evaluation to determine if Plaintiff was an appropriate candidate to receive a spinal cord stimulator. The ALJ wrote that there was nothing in medical records that indicated that Plaintiff appeared to be in pain while sitting, or that she changed positions frequently during medical encounters. It should be remembered, however, that the test is not Plaintiff's ability to "lift weights occasionally in a doctor's office; it is the ability to perform the requisite physical acts day in and day out, in the sometimes competitive and stressful conditions in which people work in the real world. McCoy v. Schweiker , 683 F.2d 1138, 1147 (8th Cir. 1982) (en banc). Dr. Jensen was reporting, based on his medical expertise and his treating relationship with Plaintiff. Dr. Jensen's report may not be identical to what was reported when Plaintiff was being seen in emergency rooms for her tremors, or because she had fallen, or because she had migraine headaches, or when she was being evaluated for a spinal cord stimulator, but when the record is evaluated as a whole, there is nothing which would render the doctor's opinion inconsistent with other evidence.
While supportability and consistency are important factors to be considered, the regulation sets forth three other factors which must be considered. The third factor is the treating relationship and includes 1) the length of the treatment relationship – Dr. Jensen wrote that he had treated Plaintiff since December 1, 2017; 2) frequency of examinations – according to the treatment notes in this record, Dr. Jensen saw Plaintiff at least thirteen times during the period under consideration; 3) purpose of the treatment relationship – the only reason Dr. Jensen saw Plaintiff was to relieve her low back pathology; 4) the extent of the treatment relationship – Dr. Jensen performed two of Plaintiff's three surgeries; 5) the examining relationship – Dr. Jensen is a treating physician rather than a physician who only examined Plaintiff or who reviewed the reports of other physicians.
The fourth factor which must be considered is specialization. The regulation states that a medical source who has received advanced education and training to become a specialist may be more persuasive about issues related to his/her specialty. Although Dr. Jensen did not submit a curriculum vitae, it should be noted that his letterhead is Neurosurgical Associates of Nebraska. In addition to M.D. Dr. Jensen adds Ph.D. to the professional initials following his name. There is no evidence in this record which casts doubt on Dr. Jensen's qualifications to render his opinion.
The fifth factor is which must be considered is the physician's familiarity with other evidence in the claim or an understanding of the disability program's policies and evidentiary requirements. While there is no indication that the doctor evaluated all of the medical evidence, he was obviously aware of Plaintiff's history and was in close contact with Plaintiff's primary care physician. On at least one occasion, Dr. Jensen was consulted by emergency department physicians. See Tr. at 523. While Dr. Jensen may not have been familiar with the regulatory requirements of disability, the relevant parts of his report are the permanent limitations Plaintiff has sustained as a result of the impairments for which he provided treatment.
Just as the Court should, and does, believe that the ALJ properly performed his duty (see United States v. Chem. Found., Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926) )("The presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties."), in the absence of clear evidence to the contrary, it should be presumed that when Dr. Jensen wrote that his opinion was rendered upon a reasonable degree of medical certainty, his opinion is substantial evidence which detracts from the final decision of the Commissioner. Dr. Jensen submitted a detailed report in which he sets forth restrictions on Plaintiff's ability to function in a workplace.
Dr. Jensen is a treating physician. He is a neurosurgical specialist. He performed two of Plaintiff's three back surgeries. He has treated Plaintiff from December 1, 2017, through February 7, 2020. The doctor cited specific limitations to Plaintiff's ability to function. The doctor prescribes narcotic pain medication. The doctor predicted that Plaintiff's residual functional capacity will not improve. The Court of Appeals has frequently held that an ALJ can give limited weight to a check-the-box conclusory form, but the physician's opinion should be given controlling weight when it is well supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the record. "The record must be evaluated as a whole to determine whether the treating physician's opinion should control." See, e.g., Grindley v. Kijakazi , 9 F.4th 622, 632 (8th Cir. 2021) citing Halverson v. Astrue , 600 F.3d 922, 929 (8th Cir. 2010).
Plaintiff has undergone three lumbar back surgeries. In addition, she has degenerative disc disease of the cervical spine. She suffers from migraine headaches. The ALJ found obesity to be one of Plaintiff's severe impairments. Her body mass index is greater than 40, which is considered to be extreme obesity. Social Security Ruling 20-1P – Although the ALJ wrote that he considered obesity in his evaluation, it should be remembered that he relied on the opinions of the State agency medical consultants when he formulated his residual functional capacity finding. The State agency physicians based their opinions on only two severe impairments – spine impairments and migraine. It does not appear that Dr. Hunter or Dr. Weis considered the impact of Plaintiff's extreme obesity when determining her residual functional capacity.
In addition, the ALJ found Plaintiff's assertion of ankylosing spondylitis has not been definitively diagnosed. Plaintiff has sought treatment for other impairments such as tremors and vision problems, which physicians have labeled psychogenic or "functional,"
In Landess v. Weinberger , 490 F.2d 1187, 1190 (8th Cir. 1974), the Court wrote: "These claimants are real people and entitled to have their disabilities measured in terms of their total physiological well-being. Different people react in markedly different ways to similar injuries. A back condition may affect one individual in an inconsequential way, whereas the same condition may severely disable another person who has greater sensitivity to pain or whose physical condition due to age, obesity, deformity, or general physical well-being is generally deteriorated."
The ALJ's finding that Plaintiff retains the residual functional capacity for sedentary work falls outside the zone of reasonable choice and the Court concludes the decision is not supported by substantial evidence on the record as a whole.
REMEDY
The Court now turns to the appropriate remedy. In Parsons v. Heckler , 739 F.3d 1334, 1341 (8th Cir. 1984), the Court wrote:
If the record presented to the ALJ contains substantial evidence supporting a finding that the claimant was disabled, then a reviewing court may reverse and remand the case to the District Court for an entry of an order granting benefits to the claimant. ... Where further hearings would merely delay receipt of benefits, an order granting benefits is appropriate.
Citations omitted.
In Dix v. Sullivan , 900 F.2d 135, 138 (8th Cir. 1990), the Court wrote:
"A finding that a claimant is able to engage in substantial gainful activity required more than a simple determination that the claimant can find employment and that he can physically perform certain jobs; it also requires a determination that the claimant can hold whatever job he finds for a significant period of time." Singletary v. Bowen , 798 F.2d 818 (5th Cir. 1986) (emphasis in original); see also Totten c. Califano , 624 F.2d 10, 12 (4th Cir. 1980) (claimant's incapacitation for periods of three days during every two weeks with medical impairments and effects expected to last at least twelve months not insufficient to establish a continuous period of disability). A condition that does not allow a
person to work on a regular basis precludes substantial gainful activity. Broadbent v. Harris , 698 F.2d 407, 413 (10th Cir. 1983). Although Dix can occasionally go fishing or engage in some light activities, "sporadic or transitory activity does not disprove disability." See Smith v. Califano , 637 F.2d 968, 971-92 (3rd Cir. 1981). The record establishes that although Dix receives occasional reprieves from her pain and symptoms, she is not capable of holding a job for a significant period of time. ... We conclude that since December 1985, Dix's Crohn's disease has regularly caused severe pain, nausea, fatigue, diarrhea, and other symptoms which we find disabling under 42 § 1382c(a)(3)(A). We therefore reverse the order of the district court, and remand for award of benefits.
In the case at bar, when the vocational expert was questioned by Plaintiff's attorney, testified that if a worker is off task more than ten percent of the time due to the need to move about, or because of the sedative effects of medication, or if the worker is absent from work two or more days per month, then competitive employment is precluded. A remand for further development of the record, therefore, would do nothing but delay the receipt of benefits to which Plaintiff is entitled.
Regarding Plaintiff's argument that the ALJ who decided Plaintiff's claim was not constitutionally appointed as Ms. Berryhill's reappointment attempt was not effective, both parties cite Dahle v. Kijakazi , 0:19-cv-2542 DTS (District of Minnesota). In the opinion of this Court, the Commissioner is correct that the ALJ was properly appointed and provides no basis to set aside the final agency action reviewed in this action.
CONCLUSION AND DECISION
The Court has considered the evidence that supports, as well as the evidence that detracts, from the decision made by the ALJ. After applying the balancing test noted in Gavin , 811 F.2d at 1199, and cases cited therein, this Court holds that the final decision of the Commissioner is not supported by substantial evidence on the record as a whole. The case is reversed and remanded for an award of the benefits to which Plaintiff is entitled.
The judgment to be entered will trigger the running of the time in which to file an application for attorney's fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(B). See McDannel v. Apfel , 78 F. Supp. 2d 944, 950–54 (S.D. Iowa 1999) (discussing, among other things, the relationship between the EAJA and fees under 42 U.S.C. § 406(b)(1) and LR 54.A(b)); see also Gisbrecht v. Barnhart , 535 U.S. 789, 794, 122 S.Ct. 1817, 152 L.Ed.2d 996 (2002) ; Fields v. Kijakazi , 24 F.4th 845 (2nd Cir. 2022) ; Mitchell v. Barnhart , 376 F. Supp. 2d 916 (S.D. Iowa 2005).
Counsel is reminded that Local Rule 54.A(b), states that an EAJA application "must specifically identify the positions taken by the government in the case that the applicant alleges were not substantially justified."
IT IS SO ORDERED.