Opinion
Case No. A1-04-64.
December 3, 2004
ORDER REMANDING THE ACTION TO THE COMMISSIONER FOR SUPPLEMENTAL FINDINGS
The plaintiff, Dan E. Fahlsing, seeks judicial review of the Social Security Commissioner's denial of his application for social security disability insurance benefits. For the reasons set forth below, the Court remands the action to the Commissioner for supplemental findings.
I. PROCEDURAL HISTORY
The plaintiff, Dan E. Fahlsing, filed an application for disability insurance benefits (DIB) on January 17, 2002, alleging that he had been disabled since June 4, 2001. (Tr. 55). Fahlsing's claim was denied by the Social Security Administration (`Commissioner') on May 20, 2002. (Tr. 30-35). Fahlsing subsequently made a timely request for reconsideration that was also denied. (Tr. 392-93). He then requested a hearing by an administrative law judge ("ALJ"). (Tr. 44). A hearing was held on August 26, 2003, (Tr. 411-47) before ALJ William Musseman. On October 16, 2003, the ALJ issued a decision denying Fahlsing's claim for benefits. (Tr. 19-25). On or about December 2, 2003, Fahlsing requested review by the Appeals Council. (Tr. 12-15). The Appeals Council denied Fahlsing's request to review the ALJ's decision, thereby adopting the ALJ's opinion as the Commissioner's final decision on the matter on April 9, 2004. (Tr. 8-11). On May 19, 2004, Fahlsing filed a complaint with this Court seeking judicial review of the Commissioner's decision. (Docket No. 1).
On September 15, 2004, the Commissioner filed a Motion for Summary Judgment. On October 12, 2004, the Plaintiff filed a Motion for Summary Judgment.
II. BACKGROUND
Dan Fahlsing was born on June 12, 1956. (Tr. 55). He was forty-three years old on the date of the administrative hearing. Fahlsing has a high school degree, and a past work history of being a mechanic, truck driver, and operating technician at a corn processing plant. (Tr. 80, 63).
The record reveals that Fahlsing has a history of low back surgery with residual chronic pain and degenerative disease of the cervical spine with MRI evidence of residual disc pathology and degenerative disease, which was treated surgically in March 2003. (Tr. 124-28, 280-84, 317-85). Two functional capacity evaluations show Fahlsing has functional limitations due to these problems. (Tr. 218-23, 280-84, 310-16). On December 13, 2002, Fahlsing's ongoing pain was identified as post-traumatic myofascial pain syndrome. (Tr. 283). The record also reveals Fahlsing had carpal tunnel surgery. (Tr. 281). Fahlsing attempted suicide in February 2002 by overdosing on prescription medications. (Tr. 239). He was diagnosed with mild depressive disorder. (Tr. 242). Finally, Fahlsing's medical records also include evidence of treatment for cardiac and thyroid problems. However, these problems do not appear to be the cause of any work-related impairments.
A. MEDICAL RECORDS
On March 3, 2000, Fahlsing presented to L. Wimal Perera, M.D., complaining of back pain in the central and right sacroiliac with constant exacerbations. (Tr. 293). Fahlsing characterized the pain as moderately severe. (Tr. 293). Fahlsing was also experiencing radiating right leg pain. (Tr. 293). Fahlsing's pain was "aggravated by getting up, sitting, standing, walking, bending, and climbing." (Tr. 293). Dr. Perera's diagnosed Fahlsing with right sciatica and referred him to Dr. Thomas N. Spagnolia, a neurosurgeon. (Tr. 294).
On March 27, 2000, Fahlsing underwent a right L4-5 hemilaminotomy, medial facetectomy, and right L4-5 diskectomy. (Tr. 115). On July 13, 2000, Dr. Spagnolia indicated Fahlsing's L5 radiculopathy would likely be permanent. (Tr. 115). Dr. Spagnolia also assessed S1 radiculopathy and mechanical neck pain, for which he prescribed anti-inflammatory medications and administered epidural steroid injections. (Tr. 111, 114-16).
On July 19, 2000, a MRI of Fahlsing's lumbar region showed "a small persistent disc protrusion on the right at L4-5" and "a mild broad-based disc bulge combined with mild degenerative facet changes resulting in mild bilateral neural foraminal stenosis." (Tr. 123). A cervical MRI on the same date showed that Fahlsing had mild degenerative facet changes as well as "mild interverterbral disc narrowing." (Tr. 122). The overall impression of Matthew R. Stone, M.D., who read the MRI, was "degenerative changes, greatest at C5-6 and C6-7, with spinal and neural forminal narrowing." (Tr. 122).
On July 20, 2000, Dr. Spagnolia noted persistent weakness continuing after surgery. (Tr. 112). Fahlsing reported increasing pain down his right leg. (Tr. 112). He also had popping in his neck and some pain in his shoulders radiating down his arm. (Tr. 112). Fahlsing reported he was no longer able to drive truck and that he was looking for other work. (Tr. 112).
On December 28, 2000, Fahlsing presented to Dr. Spagnolia for a follow-up visit and described a new work injury. (Tr. 110). Fahlsing reported severe back and right leg pain which did not subside when lying down. Fahlsing stated standing and sitting bothered him also. Sensory exam was "decreased in the S1 on the right" and he had a "slightly decreased ankle jerk on the right." (Tr. 110). Dr. Spagnolia's impression included an apparent S1 radiculopathy. (Tr. 111). Dr. Spagnolia stated Fahlsing's pain was more consistent with a mechanical type pain. (Tr. 111).
A January 16, 2001, lumbar MRI showed "new small disc extrusion, eccentric to the left at L5-S1" and a "possible adjacent fragment" according to Lee Podell, M.D. (Tr. 121).
In February 2001, Dr. Spagnolia noted Fahlsing had reached maximum medical improvement and referred him to physiatrist Michael P. Martire, M.D., for ongoing pain management. (Tr. 108). Fahlsing also began physical therapy and chiropractic care for his neck and back pain and was directed to begin a walking program. (Tr. 124, 125-27, 146-58).
On May 15-16, 2001, Fahlsing underwent a Functional Capacity Evaluation which demonstrated he had the ability to perform medium work. (Tr. 218-23). Physical therapist Steve Churchill indicated Fahlsing had mild levels of deconditioning and lumbosacral instability with repetitive and sustained activity, and that he needed to avoid sustained heavy lifting. (Tr. 220). Dr. Martire's impression of Fahlsing was mechanical lumbar pain. (Tr. 217).
On July 12, 2001, Fahlsing presented to the Dakota Clinic for an evaluation of numbness and tingling in both arms. (Tr. 186). Srinivas Ravi, M.D. assessed bilateral numbness and tingling of the arms "with small component of carpal tunnel syndrome, but predominately due to herniated discs of the back." (Tr. 185).
On November 5, 2001, Fahlsing underwent a general physical by James R. Torrence, M.D., of the Dakota Clinic. Dr. Torrance scheduled an MRI scan of Fahlsing's neck. (Tr. 184). Results revealed "mild posterior spondylosis" and bulging at the C5-6 and C6-7 levels. (Tr. 184). There was no evidence of disc herniation, significant spinal stenosis, or foraminal encroachment. (Tr. 191). Dr. Torrance referred Fahlsing to neurosurgeon Micky G. Syrquin, D.O. (Tr. 184).
On December 12, 2001, Fahlsing presented to Dr. Syrquin for a consulation. (Tr. 181-83). On examination, Fahlsing did not complain of any radicular pain with flexion, extension, side-bending, or rotation of the cervical spine. (Tr. 182). Fahlsing exhibited 120 pounds of grip strength bilaterally and had 5/5 motor strength at all stations. (Tr. 182). He reflexes were 2/5, and his sensation was intact. (Tr. 182). Dr. Syrquin noted the MRI showed "some slight degenerative disc disease at C5-C6 and C6-C7, with no real foraminal encroachment." (Tr. 182). He ordered therapy consisting of hot packs, ultrasound, massage, traction, and Elavil. (Tr. 182).
On January 11, 2002, Fahlsing presented to Dr. Martire for a consultation regarding his neck pain and bilateral upper extremity numbness. (Tr. 210). On examination, his "upper extremity muscle stretch reflexes and sensation were intact." (Tr. 210). He had 4/5 strength in the shoulders bilaterally and "some tenderness over the bilateral AC joints and right anterior shoulder." (Tr. 210). His cervical range of motion was "moderately limited in all planes." (Tr. 210). Electrodiagnostic tests demonstrated moderate sensory median compression neuropathy of the right wrist, mild median sensory compression neuropathy of the left wrist, and no definite evidence of significant cervical radiculopathy. (Tr. 210, 212-13). Dr. Martire assessed worsening cervical pain, bilateral upper extremity numbness with moderate carpal tunnel syndrome on the right and mild carpal tunnel syndrome on the left, and bilateral shoulder pain. (Tr. 211). Dr. Martire provided Fahlsing with wrist braces, recommended surgery on the wrists, and ordered a cervical epidural steroid injection. (Tr. 211).
On January 15, 2002, Fahlsing returned to Dr. Ravi for a follow-up visit regarding his carpal tunnel syndrom. (Tr. 179). Fahlsing reported worsening symptoms and apparently underwent bilateral carpal tunnel surgery in late January or early February 2002. (Tr. 179).
On February 1, 2002, Fahlsing returned to Dr. Martire with complaints of worsening pain in the lower back and left leg. (Tr. 206-07). He reported increased pain with sitting. (Tr. 206). Straight leg raising tests were positive for pain on the left, and Fahlsing had some mild weakness in left knee flexion. (Tr. 206). He exhibited some right L5 deficits. (Tr. 206). Nerve conduction studies were within normal limits, and an EMG showed "chronic neuropathic changes in the right L5 innervated muscles." (Tr. 206). Dr. Martire assessed "worsening low back and left leg pain," "chronic right L5 radiculopathy," and "insomnia associated with pain." (Tr. 206). He directed Fahlsing to continue his home exercise program and medication regimen. (Tr. 206). He also noted that if the "persistent pain down the left leg" continues he would set up an MRI scan. (Tr. 206).
On February 10, 2002, Fahlsing was admitted to St. Alexius Medical Center after he attempted suicide with an overdose of prescription medications. (Tr. 170-72). Fahlsing reported he was having difficulties with his family as well as financial problems and worsening pain. (Tr. 170-71). Fahlsing's stomach was pumped and the following day he was transferred to the psychiatric unit under the care of psychiatrist Terry M. Johnson, M.D. (Tr. 161-66). A mental status examination revealed Fahlsing was alert with a dysphoric mood. (Tr. 164). Fahlsing denied suicidal intent and indicated he intended to pursue counseling. (Tr. 164). His insight and judgment were grossly intact and no perceptual abnormalities were noted. (Tr. 164). Dr. Johnson noted Fahlsing did not appear to be clinically depressed. (Tr. 165). His assessment was an "adjustment disorder with mixed disturbance of emotions and conduct, improving," and he recommended individual and family counseling. (Tr. 165).
On February 12, 2002, Fahlsing returned to Dr. Ravi to discuss his carpal tunnel syndrome. (Tr. 178). Fahlsing reported improvement in his symptoms. (Tr. 178). Fahlsing exhibited good sensation in all his fingers and a good grasp. (Tr. 178). Fahlsing's thenar muscles were normal and palmar sensation was intact. (Tr. 178). Dr. Ravi recommended Fahlsing wear velcro splints for three weeks, after which he could be reassessed for physical therapy. (Tr. 178).
On April 29, 2002, Fahlsing returned to Dr. Martire and reported his legs gave out when he stood up. (Tr. 205). On examination, Fahlsing exhibited decreased lumbar range of motion and straight leg-raising tests were positive on the left. (Tr. 205). Dr. Martire assessed worsening pain, depression anxiety, and insomnia, and adjusted Fahlsing's medications. (Tr. 205)
On May 22, 2002, Fahlsing began attending counseling with social worker Phil Brossart. (Tr. 239-43). Fahlsing indicated he had significant depression which correlated to his back injury and subsequent unemployment. (Tr. 239-40). A mental status examination revealed Fahlsing had a sad mood and blunted affect, without evidence of thought disturbances. (Tr. 241-42). His insight and judgment were intact and he denied any suicidal or homicidal ideation. (Tr. 242). Brossart assessed a major depressive disorder, single episode, mild; history of thyroid and back problems; stressors; and a Global Assessment Functioning (GAF) score of 50. (Tr. 242).
A GAF score of 41-50 indicates a serious symptoms or any serious impairment in social, occupational, or school functioning. Diagnostic and Statistical Manual of Mental Disorders, 32 (4th Ed. 1994).
On June 20, 2002, Dr. Martire wrote a letter in which he opined that Fahlsing was "totally disabled from gainful employment" due to his medical condition. (Tr. 204).
On July 9, 2002, Fahlsing presented to Dr. Martire complaining of "significantly worsening low back and bilateral leg pain and weakness." (Tr. 203). On examination, Dr. Martire noted that Fahlsing had decreased "right ankle dorsilflexion strength;" he had "difficulty changing positions" and he was in "obvious distress." (Tr. 203). Dr. Martire recommended epidural injections. (Tr. 203).
In July 2002, Fahlsing told Brossart that his depression remained unchanged, but that he could function adequately and care for his daily chores. (Tr. 237). Brossart noted that Fahlsing would continue to see him. (Tr. 237).
An MRI scan conducted on July 15, 2002, revealed post-operative changes at the L4-5 levels on the right and multi-level degenerative changes of the lumbosacral spine. (Tr. 230). On July 15, 2002, Dr. Martire opined that Fahsling was disabled from both his former work and other work due to inability to lift, bend, or sit, all of which were permanent restrictions. (Tr. 196-97).
On July 30, 2002, Fahlsing reported to Dr. Martire that the epidural injections helped thirty to thirty-five percent in both legs. (Tr. 193). Dr. Martire found improved lumbar range of motion but Fahlsing's straight leg raising was still partially positive. (Tr. 193).
On August 30, 2002, a State agency physician reviewed Fahsling's records and completed a "Physical Residual Functional Capacity Assessment." (Tr. 251-58). The physician determined Fahlsing could lift and/or carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk at least two hours in an eight-hour day, and sit about six hours in an eight-hour day. (Tr. 252). The physician further found Fahlsing could frequently climb, balance, stoop, kneel, crouch, and crawl. (Tr. 253). The physician opined that Dr. Martire's assessment of total disability was "not supported by any evidence." (Tr. 257).
On September 5, 2002, State agency psychologist H.D. Hase, Ph.D., reviewed Fahlsing's records and completed a "Psychiatric Review Technique" form. (Tr. 259-72). Dr. Hase determined Fahlsing had a non-severe affective disorder. (Tr. 269).
On December 13, 2002, Fahlsing met with Ralph Dunnigan, M.D., of the Independent Medical Examination Network, Inc., for a consultation. (Tr. 280-84). Dr. Dunnigan found no cervical paraspinal spasm, good shoulder range of motion, and normal forward shoulder flexion. (Tr. 282). Aside from some tenderness, the examination of the upper extremities was unremarkable. (Tr. 282). Fahlsing had a "modest paraspinous spasm" in the lumbar region, but his hips moved freely and did not elicit pain. (Tr. 282). Straight leg-raising tests were negative to 70 degrees on the left and 60 degrees on the right. (Tr. 282). There was no evidence of atrophy in the lower extremities, though Fahlsing's strength was somewhat pain limited. (Tr. 283). His deep tendon reflexes were intact and his gait was steady. (Tr. 283). His grip strength ranged from 76 to 88 pounds. (Tr. 283). Dr. Dunnigan assessed "post-traumatic myofascial pain syndrome," history of traumatic disc at L4-5 status post surgery and chronic lumbar symptomatology, degenerative disease of the cervical spine, small L5-S1 central disc herniation, and history of depression and insomnia. (Tr. 283). Dr. Dunnigan opined Fahlsing had "significant impairment relative to the diagnoses," and indicated that he would no longer be able to perform his past work. (Tr. 283-84).
On March 21, 2003, Fahlsing underwent an anterior cervical corpectomy of the body at the C6 level with subsequent fusion performed by Dr. Torrence. (Tr. 288, 318-). On May 30, 2003, Dr. Torrence indicated Fahlsing's neck was "doing better" after surgery. (Tr. 287).
On August 12-13, 2003, Fahlsing underwent a second Functional Capacity Evaluation by physical therapist Churchill. (Tr. 305-09). Churchill opined Fahlsing could only perform a six-hour work day due to significant deconditioning. (Tr. 306). He further indicated Fahlsing's lumbosacral instability would limit his ability to lift, push, and pull. (Tr. 306). Churchill also noted that Fahlsing needed to avoid full crouching and repetitive squatting. (Tr. 306). He stated Fahlsing could only sit and stand occasionally and climb stairs occasionally. (Tr. 307). Churchill indicated his assessment best correlated to sedentary work, but stated Fahlsing could not perform the entire range of sedentary work due to his difficulties with sitting. (Tr. 307).
On August 19, 2003, at the request of Fahlsing's counsel, Dr. Martire completed a "Medical Assessment of Ability to Do Work-Related Activities (Physical)" form. (Tr. 310-16). Dr. Martire opined that Fahlsing was precluded from working a full eight-hour day based on the results of the August 12-13, 2003, Functional Capacity Evaluation and indicated that Fahlsing could only perform at the "less than sedentary category" due to a maximum sitting tolerance of two hours in an eight-hour day. (Tr. 312). In his assessment, Dr. Martire found Fahlsing could occasionally lift up to 10 pounds and only rarely lift 11-20 pounds. (Tr. 313). He found Fahlsing could sit for less than one hour at a time for a total of two hours, stand for one hour at a time for a total of two hours, and walk for one hour at a time for a total of two hours. (Tr. 314). He further found Fahlsing could occasionally climb, balance, stoop, kneel, and crawl. (Tr. 315). Dr. Martire based his findings on the August 12-13, 2003, Functional Capacity Evaluation and his medical charts. (Tr. 313-16).
B. FAHLSING'S TESTIMONY
Fahlsing claims that his lower back and neck injuries limit his ability to work. (Tr. 74). In January of 2002, Fahlsing reported he had sharp to dull aching, stabbing pain, and pain in his neck, arms, back, and legs. (Tr. 71). His pain was made worse with movement and with not moving after short periods of time. (Tr. 71). Falhsing reported his pain gradually worsened as the day progressed and limited his ability to do physical tasks or to concentrate. (Tr. 71-72). He has restricted playing with children, doing outdoor activities like hunting and fishing, camping, yard work, and home repairs due to his pain. (Tr. 72). Without medication, Fahlsing reports he can not sleep for more than an hour at a time. (Tr. 72). On a typical day, Fahlsing would help get his children ready for school, take his pills and take a shower, wash some clothes, do his exercises, go for a walk, put clothes in the dryer, put his TENS (Transcutaneous Electrical Nerve Stimulator) unit on for muscle stimulation with ice or heat, lie down or sit, try to put something out for the children to make the evening meal, get the mail, watch the news, get the children to bed, and go to bed after which he would get up several time to walk around. (Tr. 72).
On June 15, 2002, Fahlsing stated that his pain had gotten worse and that he had less mobility since he filed his claims. At the time of the hearing, on August 26, 2003, Fahlsing was taking Hydrocodone and Celebrex for pain, Lexapro for depression, Trieptal for nerve spasms, and Ambien to help him sleep. (Tr. 104).
Hydrocodone is a semisynthetic narcotic analgesic and antitussive with multiple actions qualitatively similar to those of codeine. See Physician's Desk Reference, 525 (58th ed. 2004).
Celebrex is a nonsteroidal anti-inflammatory drug used for (1) relief of the signs and symptoms of osteoarthritis, (2) relief of the signs and symptoms of rheumatoid arthritis in adults, (3) for the management of acute pain in adults, (4) for the treatment of primary dysmenorrhea, and (5) to reduce the number of adenomatous colorectal polyps in familial adenomatour polyposis. See Physician's Desk Reference, 2585-86 (58th ed. 2004).
Lexapro is an orally administered selective serotonin reuptake inhibitor used for the treatment of major depressive disorder. See Physician's Desk Reference, 1302-03 (58th ed. 2004).
Trieptal is an antiepileptic drug used as a mono-therapy or adjunctive therapy in the treatmnet of partial seizures in adults and children ages 4-16 with epilepsy. See Physician's Desk Reference, 2324-25 (58th ed. 2004).
Ambien is a non-benzodiazepine hypnotic used for the sort-term treatment of insomnia. See Physician's Desk Reference, 3006 (58th ed. 2004).
At the August 26, 2003 hearing, Fahlsing testified that his daily routine included getting up at 7:00 a.m., waking up the kids, putting the dogs out, making a cup of coffee, getting the newspaper, getting the mail, driving out to check the water tank for the horses, playing with the cats, coming back to town to visit or go for coffee. He also testified that he lays down an hour and a half every afternoon because of pain and lack of sleep at night. In the evenings, Falshing testified that he attends some of his children's school activities, goes back to water the horses, helps with supper preparation, watches television and goes to bed by 10:15 p.m. (Tr. 439-443)
A vocational expert, Warren Haagenson, testified at the administrative hearing. In response to a hypothetical posed by the ALJ, he testified that a individual the same age and educational background of Fahlsing limited to an exertional level of a full range of light, with non-exertional limitations of no over-chest-level work, no constant fingering, no keyboarding, no air, torque or vibrating tools, occasional bend, squat, kneel, crawl, and climb, no foot or leg controls would not be able to do the past work of Fahlsing. (Tr. 444). Haagenson testified further that a person with the same physical limitations as Fahlsing would be able to work in an unskilled light work category, such as a mail clerk, usher, or ticket-taker. (Tr. 444). The ALJ asked Haagenson whether a person with the restrictions set forth in the first hypothetical question with the additional restriction of the need to lay down, either due to pain or fatigue, but for at least an hour and a half at a time, would be compatible with competitive employment, and Haagenson testified that it would not. (Tr. 445). Finally, Fahlsing's counsel inquired whether a person of Fahlsing's age, education and work experience, and limited to terms of occasional sitting or standing at two-and-a-quarter hours each out of a six-hour time frame, and limited to lifting associations with the limits of sedentary word would be capable of performing Fahlsing's past relevant work. Haagenson testified that no such person would be capable to performing Fahlsing's past relevant work. Haagenson also testified such a person would not be capable of engaging in competitive employment. (Tr. 444-45).
III. ALJ'S DECISION
The ALJ used the five-step sequential evaluation mandated by 20 C.F.R. § 404.1520 in determining whether Fahlsing was disabled:
(1) whether the claimant is presently engaged in a substantial gainful activity,
(2) whether the claimant has a severe impairment that significantly limits the claimant's physical or mental ability to perform basic work activities,
(3) whether the claimant has an impairment that meets or equals a presumptively disabling impairment listed in the regulations,
(4) whether the claimant has the residual functional capacity to perform his or her past relevant work, and
(5) if the claimant cannot perform the past work, the burden then shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform.
(Tr. 19-24).
For the first step, the ALJ found that Fahlsing had not taken part in substantial gainful employment after his onset date of June 4, 2001. (Tr. 20). At the second step, the ALJ recognized that Fahlsing's cervical and lumbar spinal pain and his bilateral carpal tunnel were severe impairments. (Tr. 20). At the third step, the ALJ found that Fahlsing's impairments did not meet any of the criteria of any of the listed impairments. (Tr. 21).
Moving to the fourth step, the ALJ determined that Fahlsing was unable to perform any of his prior relevant work. (Tr. 23). However, when reviewing the record as a whole, the ALJ found that Fahlsing would be able to perform light and sedentary unskilled jobs such as amusement recreation attendant, mail clerk, and usher/ticket taker based on his condition. (Tr. 23). In reaching that decision, the ALJ discredited much of Fahlsing's subjective complaints because he found them not to be fully credible. (Tr. 22). The ALJ opined that Fahlsing's complaints were in excess of the clinical findings and his amount of activity was not consistent with the degree of this complaints. (Tr. 22).
The ALJ also did not give significant weight to the August 2003 Functional Capacity Evaluation. (Tr. 22). The ALJ found many of Fahlsing's restrictions were attributed to "deconditioning" rather than to cervical or lumbar impairment and found it "unreasonable to limit the claimant to a six-hour day rather than limit the extent of functions in an eight-hour day." (Tr. 22). The ALJ also found it "unreasonable to project the claimant's capacity only five months after surgery into an estimate of permanent functional loss." (Tr. 22). Finally, the ALJ determined that "the claimant's own description of his daily activities shows he does what he wants, mostly light activities." (Tr. 22). The ALJ's decision does not directly address the opinions of Dr. Martire.
IV. EVIDENCE BEFORE APPEALS COUNCIL
Fahlsing presented additional evidence to the Appeals Counsel in conjunction with the request for review. The evidence consisted of two letters. (Tr. 397-400). In a November 17, 2003, letter written by physical therapist Steve Churchill, he writes that his concerns about Fahlsing's conditioning noted in the August 2003 FCE may have been taken out of context. (Tr. 397). Churchill noted that while deconditioning was a factor in Fahlsing's functional capacity, it was not the primary factor. (Tr. 397-98). Churchill disputed the ALJ's conclusion that Fahsling was not at maximal medical improvement following his cervical spine fusion. (Tr. 398). Churchill states that it is not uncommon to perform an FCE between five and six months post cervical and lumbar spine fusions. (Tr. 398). Churchill concludes his letter as follows:
In summary, most restrictions and limitations summarized in the functional capacity evaluation are not attributed to deconditioning as stated in the Social Security summary, but rather to lumbar spine instability and dysfunction, with movement and lifting, significant use of accessory muscle recruitment, unsafe or difficult transitional movement, and decreased right lower extremity weight bearing with antalgic gait presentation. Mr. Fahlsing does demonstrate more deconditioning in the most recent FCE preformed in August of 2003. However, this fact is not used as a primary determinant in assessing safe work performance.
(Tr. 399).
Dr. Martire also wrote a letter regarding Fahlsing's condition and made the following observations:
I do not feel the patient will be able to be restored to the ability to do sedentary work following physical therapy addressing the deconditioning noted in the FCE. This is because the patient is at less than sedentary because of his non-material handling and inability to do any prolonged sitting. Even if the patient were able to recondition, his inability to sit for any prolonged periods would not change. However, I do feel the patient was at maximal medical improvement at the time the functional capacity assessment was done. Many patients with chronic pain are unable to recondition to any high degree due to the pain. Due (sic) the combination of the patient's neck and low back pain, I do not feel he is able to condition significantly more. I feel that the patient being at less than the sedentary category for non-material handling skills is a permanent restriction. In other words, the patient will never be able to sit more than six hours within a eight hour day.
(Tr. 400).
In its written notice to Fahlsing, the Appeals Council stated that it had considered the additional evidence submitted and found that it did not provide a basis for changing the ALJ's decision. (Tr. 8-9).
V. STANDARD OF REVIEW
This Court plays a limited role when reviewing the Commissioner's decisions. Wiseman v. Sullivan, 905 F.2d 1153, 1155 (8th Cir. 1990). The Court does not conduct a de novo review. Keller v. Shalala, 26 F.3d 856, 858 (8th Cir. 1994). Rather, it looks at the record as a whole to determine whether the decision is supported by substantial evidence. Upon a review of the pleadings and transcript of the record, the Court can affirm, modify, or reverse the decision of the Commissioner, with or without remanding the case for a rehearing. 42 U.S.C. § 405(g). To affirm the Commissioner's decision, the Court must find that it is supported by substantial evidence appearing in the record as a whole. Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989). "Substantial evidence is less than a preponderance, but enough so that a reasonable mind might find it adequate to support the conclusion." Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992). The review of the record is more than a search for evidence supporting the Commissioner's decision. The Court must also take into account matters that detract from the ALJ's findings and apply a balancing test to weigh evidence which is contradictory. Kirby v. Sullivan, 923 F.2d 1323, 1326 (8th Cir. 1991); Sobania v. Secretary of Health Human Services, 879 F.2d 441, 444 (8th Cir. 1989).
When conducting its review, the Court employs a "scrutinizing analysis" that balances the supporting and contradictory evidence on the record. Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987). As noted, this requires more than a search for evidence that supports the Commissioner's decision. The Court must review the entire record and weigh all evidence that fairly detracts from the Commissioner's findings. Cruse v. Bowen, 867 F.2d 1183, 1184 (8th Cir. 1989).
In determining whether there is substantial evidence to support the Commissioner's decision, the Court must consider:
(1) the credibility findings made by the ALJ;
(2) the plaintiff's vocational factors;
(3) medical evidence from treating and consulting physicians;
(4) the plaintiff's subjective complaints relating to exertional and non-exertional activities and impairments;
(5) any corroboration by third parties of the plaintiff's impairments; and
(6) the testimony of vocational experts that is based upon a proper hypothetical questions setting forth the plaintiff's impairment.Baker v. Secretary of Health and Human Services, 955 F.2d 552, 555 (8th Cir. 1992).
The substantial evidence standard "allows for the possibility of drawing two inconsistent conclusions, thus it embodies a zone of choice within which the [Commissioner] may decide to grant or deny benefits without being subject to reversal on appeal."Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994). In other words, while the Court may weigh evidence differently, it cannot reverse a Commissioner's decision if there is sufficient evidence in the record to support either outcome. Id.
Additionally, when the Appeals Council has looked at new and material evidence and has declined to review, the Court must determine "whether the ALJ's decision is supported by substantial evidence in the whole record, including the new evidence."O'Donnell v. Barnhart, 318 F.3d 811, 816 (8th Cir. 2003) (citing Gartman v. Apfel, 220 F.3d 918, 922 (8th Cir. 2000) (quoting Kitts v. Apfel, 204 F.3d 785, 786 (8th Cir. 2000))).
VI. LEGAL DISCUSSION
Both parties agree with the ALJ's conclusion as to the first four steps set forth in 20 C.F.R. § 404.1520: (1) Fahlsing was not engaged in substantially gainful activity, (2) Fahlsing has a severe impairment that significantly limits his physical or mental ability to perform basic work activities, (3) Fahlsing's impairment does not meet or equal a presumptively disabling impairment listed in the regulations, and (4) Fahlsing does not have the residual functional capacity to perform his past relevant work. The crux of the issue before the Court is whether the ALJ's finding that Fahlsing had the residual functional capacity to perform the full range of light exertional activity with limitations for no over chest level work; no constant fingering; no keyboarding; no air, torque, or vibratory tools; only occasional bending, squatting, kneeling, crawling, or climbing; and no use of foot or leg controls is supported by substantial evidence.
Fahlsing contends that the ALJ erred in rejecting (1) the opinion of Dr. Martire, (2) the results of the 2003 FCE, and (3) Fahlsing's testimony concerning his pain. The Commissioner asserts the agency's final decision is supported by substantial evidence and should be upheld.
Fahlsing contends that the ALJ failed to explain why he rejected Dr. Martire's opinion. "[A] treating physician's opinion is `normally entitled to great weight,' but . . . such an opinion `do[es] not automatically control, since the record must be evaluated as a whole." Prosch v. Apfel, 210 F.3d 1010, (8th Cir. 2000) (quoting Rankin v. Apfel, 195 F.3d 427, 430 (8th Cir. 1999) and Bentley v. Shalala, 52 F.3d 784, 785-86 (8th Cir. 1995)). "Such opinions are given less weight if they are inconsistent with the record as a whole or if the conclusions consist of vague, conclusory statements unsupported by medically acceptable data." Stormo v. Barnhart, 377 F.3d 801, 806 (8th Cir. 2004) (citing Piepgras v. Chater, 76 F.3d 233, 236 (8th Cir. 1996)). "Whether the ALJ grants a treating physician's opinion substantial or little weight, the regulations provide that the ALJ must "always give good reasons" for the particular weight given to a treating physician's evaluation." Prosch, 2120 F.3d at 1013 (quoting 20 C.F.R. § 404.1527(d)(2)).
In reviewing the available medical evidence to determine Fahlsing's residual functional capacity, the ALJ's decision contains the following three paragraphs.
The undersigned must also consider any medical opinions, which are statements from acceptable medical sources, which reflect judgments about the nature and severity of the impairments and resulting limitations ( 20 C.F.R. § 404.1527, 20 C.F.R. § 416.927 and Social Security Rulings 96-2p and 96-6p).
Having considered all the evidence, I find that the claimant has the residual functional capacity to perform the full range of light exertional activity; no over chest level work, no constant fingering, no keyboarding, no air, torque or vibratory tools; only occasionally bend, squat, kneel, crawl, or climb and no use of foot or leg controls.
I have considered the functional capacity evaluation of 8/12-13/03. This was performed only five months after the cervical surgery of March 2003. The same evaluation performed two years before the surgery on 5/15-16/01 showed the claimant able to perform medium level work (F p. 26). The measurement data of the recent evaluation indicates capacity to perform many functions for 2-4 hours per day. He showed difficulty with static sitting, but there was no estimate of his capacity if he were allowed to change positions or to alternate sitting or standing (20F). Notably most of the restrictions, including limiting the claimant to a six hour day and the spinal instability, were attributed to "deconditioning" rather than to the cervical or lumbar impairment (20F pp. 2-3). The Social Security rules require the functional capacity assessment to be based solely on the individual's impairments (SSR 96-8p). While it is not unreasonable to expect some deconditioning from inactivity for a short period following surgery, this would normally be temporary, not a permanent functional loss. Also, I find it unreasonable to limit the claimant to a six-hour day rather than limit the extent of functions in an eight-hour day. I also find it unreasonable to project the claimant's capacity only five months after surgery into an estimate of permanent functional loss. The claimant was capable of medium work two years before the surgery and I suspect that given a reasonable recuperation period after the surgery he would not be limited to the extent indicated by this evaluation. I find the restriction to a six-hour day unreasonable, and I do not believe a functional capacity evaluation five months after cervical surgery is representative of his permanent functional capacity. I also note that the claimant's own description of his daily activities shows he does what he wants, mostly light activities. I therefore do not give significant weight to the 8/13/03 functional capacity evaluation (20F).
(Tr. 22).
It is clear the ALJ discounted the FCE conducted by physical therapist Steve Churchill. It appears the ALJ discounted the FCE to a great extent because in the ALJ's opinion the restrictions were attributed to "deconditioning" rather than physical impairment. The ALJ also found it unreasonable to limit Fahlsing to a six-hour workday. Finally, the ALJ found an FCE conducted five months after surgery could not be representative of a permanent functional capacity. The ALJ speculated that given a reasonable recuperation period, Fahlsing would not be limited to the extent indicated by the FCE. The ALJ's decision does not identify the evidence, medical or otherwise, that would support the conclusion as to Fahlsing functional capacity. Although the Commissioner asserts that the FCE should not be given great weight because Churchill is a physical therapist and not an acceptable medical source under the regulations, the ALJ does not reject the FCE based on Churchill's credentials.
In its motion for summary judgment, the Commissioner cites to several references in the medical record which purport to show the ALJ's decision was supported by substantial evidence. However, because the ALJ's decision does not specify what evidence was found to be credible or persuasive, the Court is unable to determine if the ALJ came to these same conclusions.
It is not clear from the record or the ALJ's decision why Dr. Martire's opinions were rejected. The record clearly reveals that Dr. Martire reviewed the August 2003 FCE and rendered his own opinion regarding Fahlsing's functional capacity. See Tr. 313-316. The record also reveals that Dr. Martire relied upon the August 2003 FCE and his own medical records to support his opinion. See Tr. 313-316. The ALJ decision fails to identify how Dr. Martire's opinion was inconsistent with either his own underlying medical records and/or with the conclusions of other physicians or what other medical assessments are supported by better or more thorough medical evidence. See Prosch v. Apfel, 201 F.3d 1010 (8th Cir. 2000). "Whether the ALJ grants a treating physician's opinion substantial or little weight, the regulations provide that the ALJ must `always give good reasons' for the particular weight given to a treating physician's evaluation." Prosch, 210 F.3d at 1013 (quoting 20 C.F.R. § 404.1527(d)(2)).
The Court finds that the ALJ decision fails to set forth the reason(s) for rejecting Dr. Martire's opinions. Without a thorough understanding of the evidentiary basis for the ALJ's decision, the Court in unable to determine whether it is supported by substantial evidence. Dr. Martire has been Fahsling's primary treating physician for his back and neck problems since February 2001. Dr. Martire is a well-qualified physiatrist who specializes in the treatment of chronic pain and musculoskeletal disorders. The opinions of a claimant's treating physician are entitled to controlling weight if they are supported by, and not inconsistent with, substantial medical evidence in the claim file. The record contains considerable objective medical evidence to support Dr. Martire's opinions.
V. CONCLUSION
The Court finds it necessary to remand this matter to the ALJ for supplemental findings under sentence four of 42 U.S.C. § 405(g). See Buckner v. Apfel, 213 F.3d 1006, 1011(8th Cir. 2000) (holding orders that do not expressly affirm, modify, or reverse a decision of the Commissioner but rather direct her to cure some specific defect in the administrative proceedings are sentence four remands). The Commissioner is directed to supplement the ALJ's decision by setting forth what "good reasons" may exist for the rejection of Dr. Martire's opinion, and by providing references to the medical evidence in the record which the ALJ relied upon to reach his conclusions. 20 C.F.R. § 404.1527(d)(2)). The new evidence received from physical therapist Steve Churchill and Dr. Martire deserves a careful and considered second look. The Court respectfully requests that the supplemental findings be submitted for review as soon as reasonably possible.
IT IS SO ORDERED.