Opinion
3:20-cv-45 RP-SBJ
2021-02-12
Kari E. GREEN, Plaintiff, v. Andrew SAUL, Commissioner of Social Security, Defendant.
J. Richard Johnson, Johnson & Legislador PLC, Cedar Rapids, IA, for Plaintiff. David L.D. Faith, William C. Purdy, United States Attorney's Office, Des Moines, IA, for Defendant.
J. Richard Johnson, Johnson & Legislador PLC, Cedar Rapids, IA, for Plaintiff.
David L.D. Faith, William C. Purdy, United States Attorney's Office, Des Moines, IA, for Defendant.
MEMORANDUM OPINION AND ORDER
ROBERT W. PRATT, U.S. DISTRICT JUDGE
Plaintiff, Kari E. Green, filed a Complaint in this Court on May 8, 2020, 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 following a hearing before an Administrative Law Judge (ALJ). 42 U.S.C. § 405(g).
Plaintiff filed an application for benefits March 13, 2017. Tr. at 178-79. Plaintiff was 48 years old at the time of the hearing on December 18, 2018, before Administrative Law Judge (ALJ) John P. Mills, III. Tr. at 38-74. The ALJ issued a Notice of Decision – Unfavorable on March 12, 2019. Tr. at 13-30. On March 11, 2020, the Appeals Council declined to review the ALJ's decision. Tr. at 1-7. Thereafter, Plaintiff commenced this action.
ALJ's FINDINGS
Before beginning the sequential evaluation ( 20 C.F.R. § 404.1520(a)(4) ), the ALJ noted that Plaintiff was insured for benefits through December 31, 2020. At the first step, the ALJ found that Plaintiff had not engaged in substantial gainful activity after December 23, 2015. At the second step, the ALJ found that Plaintiff has the following severe impairments: degenerative disc disease status post-surgery, obesity, myofascial pain syndrome, adjustment disorder with mixed anxiety and depressed mood, and major depression. Tr. at 18. The ALJ found that Plaintiff's impairments were not severe enough to qualify for benefits at the third step of the sequential evaluation. Tr. at 17. 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 the claimant must be allowed to alternate between sitting and standing, at will, while remaining at the workstations and on-task. The claimant can occasionally climb ramps and stairs, but she can
never climb ladders, ropes, or scaffolds. The claimant can occasionally balance, stoop, kneel, couch (sic), and crawl. The claimant can have frequent exposure to unprotected heights and moving mechanical parts, and she can have occasional exposure to extreme cold and vibrations. The claimant is limited to the performance of simple and routine tasks, and she is limited to making simple work-related decisions.
Tr. at 22. The ALJ found that Plaintiff is unable to perform any of her past relevant work. Tr. at 28. At the fifth step of the sequential evaluation, the ALJ found that there is work which exists in significant numbers in the national economy which can be performed by someone of Plaintiff's age, education, past relevant work and residual functional capacity. Tr. at 21. Examples of such jobs are: letter addressor; document preparer; surveillance system monitor. The three examples are unskilled and require a sedentary exertion level. Tr. at 29. The ALJ found that Plaintiff is not disabled nor entitled to the benefits for which she applied. Tr. at 29-30.
MEDICAL EVIDENCE
On October 1, 2002 Plaintiff saw Wayne E. Janda, M.D., at The Steindler Orthopedic Clinic. Tr. at 770-72. Diagnosis was acute left sciatica, suspect disk herniation at L4-5 or L5-S1 with radiculitis and perhaps radiculopathy in the left lower extremity, L5 root. Plaintiff complained of pain in the lower back with numbness in her left leg and arm. Plaintiff reported that the symptoms began on September 21, 2002 when she stood up from a couch. Tr. at 770. The doctor recommended an MRI and possibly an epidural steroid injection. Tr. at 771-72. The MRI showed a broad-based central disk protrusion at L4-5 that slightly flattened the ventral aspect of the thecal sac. Tr. at 773. Plaintiff received an injection on October 4, 2002, from which she received temporary relief. Dr. Janda recommended another injection. Tr. at 774.
On November 11, 2002, Plaintiff saw Edward G. Law, M.D. with a diagnosis of bulging L4-5 disk with possible annulus tear. Tr. at 776-77. The doctor advised against surgery and further epidural injections. He prescribed Bextra. Tr. at 777.
On December 2, 2002, Plaintiff saw Dr. Law. Plaintiff was working 4 hours per day. Plaintiff did not get relief from Bextra, so the doctor prescribed Celebrex. The doctor told Plaintiff to begin working six hours per day with the goal of returning to full time work. Tr. at 778.
On January 14, 2003, Plaintiff told Dr. Law she felt much better and that her back was more flexible. Plaintiff's strength was improved, and she was walking about a mile per day which the doctor encouraged. Tr. at 778.
On February 2, 2007, Plaintiff saw Dan Coons, PA-C at The Steindler Orthopedic Clinic. Plaintiff complained of left foot pain after she stubbed her toe on a wooden chest. Tr. at 780.
On June 10, 2009, Plaintiff was seen at North Liberty Family Health Center for sinusitis, cough and a yeast infection. Tr. at 347. On September 16, 2009, Plaintiff was seen for abdominal pain. Tr. at 346. Plaintiff was seen again on September 23, 2009 for the abdominal pain. the doctor ordered an ultrasound of the right upper quadrant. Neither blood work nor the ultrasound showed anything which explained the symptoms. Tr. at 345.
On February 21, 2012, Plaintiff saw Scott A. Frisbie, PA-C at The Steindler Orthopedic Clinic. Tr. at 782-83. Plaintiff complained of back pain. Tr. at 782. Mr. Frisbie ordered an MRI. Tr. at 783. On February 28, Mr. Frisbie diagnosed L4-5 disk herniation. Mr. Frisbie adjusted Plaintiff's medications and advised her to remain off work for ten days after which an epidural injection would be considered. Tr. at 784.
On March 9, 2012, Plaintiff saw Mr. Frisbie status post lumbar translaminar epidural steroid injection of February 24, 2012. Plaintiff reported no change in her symptoms. Mr. Frisbie had spoken to Dr. Overton who recommended trying a left L4 and L5 nerve root transforaminal injection. Tr. at 786. Plaintiff received the injection on March 12, 2021 from Fred J. Dery, M.D. Tr. at 787.
On March 20, 2012, Plaintiff saw Dr. Overton. Tr. at 788-89. Dr. Dery's injection was not successful, providing no relief at all. It was noted that Plaintiff was an administrative assistant for an oral surgeon. Plaintiff was noted to be 5 foot nine inches tall with a weight of 202 pounds. The doctor noted that the MRI of February 22, 2012 showed some congenital canal stenosis at multiple levels. The doctor diagnosed left L4 radiculopathy, possibly from L4-5 subarticular stenosis, possibly from other causes. The doctor ordered an EMG nerve conduction study. Tr. at 788.
On March 29, 2012, Plaintiff underwent left L4-5 laminotomy performed by Dr. Overton. Tr. at 791-03.
On May 9, 2012, six weeks post-surgery, Plaintiff reported that her pain increased when she increased her work hours from 4 per day. The doctor wrote he was not surprised given the degree of her pain the nature of her condition. He recommended she return to working 4 hours per day. Tr. at 795.
On June 1, 2012, Plaintiff saw Dr. Overton and reported that she had been worse for about a week. Plaintiff was taking Gabapentin and the doctor increase the dosage and advised her to work only six hours per day. He also refilled her prescription of hydrocodone. Tr. at 794.
On June 29, 2012, Plaintiff saw Dr. Overton. Plaintiff reported that she did not feel she was getting any better. Plaintiff reported recently developing some pain in the right back, right buttock, right posterior thigh, calf and sometimes to the foot as well as occasional shooting pain on the left side. The doctor diagnosed continued radiculopathy pain after left L4-5 laminectomy and recent increase in right leg pain. Tr. at 796.
On July 2, 2012, Plaintiff saw Dr. Dery. Tr. at 797-98. Plaintiff reported that she had not received any relief from the surgery performed by Dr. Overton. The doctor opined that the pain was likely due to scar tissue adhering to or irritating the surrounding nerve roots. The doctor discontinued gabapentin and prescribed Lyrica. The doctor ordered a series of epidural injections. The doctor also asked Plaintiff to consider nerve stimulation therapy. Tr. at 797. Plaintiff was to discontinue using hydrocodone. Tr. at 798. Dr. Drey gave Plaintiff an injection on July 3, 2012. Tr. at 799. Another injection was given July 17, 2012. Tr. at 800.
Plaintiff saw Dr. Dery on August 3, 2012. Plaintiff reported being limited by her pain. The epidurals did not help. Plaintiff's medication was adjusted, and Plaintiff asked for more information about the neurostimulator. Tr. at 801.
On August 31, 2012, Todd Ajax, M.D., wrote that an MRI indicated that EMG nerve conduction studies would be helpful to determine if epidural fibrosis was causing ongoing nerve injury. Tr. at 846.
On September 13, 2012, Plaintiff saw Dr. Dery to discuss a spinal cord stimulator device for chronic pain. Tr. at 803-04. Plaintiff said she was "pretty sure" she would proceed with the trial, so the doctor ordered an MRI of the thoracic spine. The doctor also ordered a "psych prescreen eval." Tr. at 804.
On September 14, 2012, Dr. Ajax wrote that he concurred that repeat surgery was not a good option for Plaintiff. Tr. at 847. The doctor also wrote that inflammatory studies were normal. Tr. at 848.
On November 1, 2012, Plaintiff saw Dr. Dery. Tr. at 805-06. Plaintiff reported that she had fallen down some stairs and hurt her back and right hip. X-rays of the pelvis did not show any abnormality. On examination the doctor did not observe any bruising. The doctor told Plaintiff she could return to work the next day. Tr. at 805.
On November 20, 2012, Dr. Dery installed the spinal cord stimulator. Tr. at 898-09
On November 28, 2012 Plaintiff saw Dr. Dery. Tr. at 807. Plaintiff was seen for a check of the neurostimulator. Plaintiff reported about 10 to 15 percent relief which was not adequate for her. The doctor recommended that Plaintiff see another physician to discuss an intrathecal drug delivery system. The doctor opined that Plaintiff was not a good candidate for long-term opioid therapy "mainly because she is young, healthy, and has no other significant medical problems." Tr. at 807.
On December 12, 2012, Plaintiff saw Joseph J. Chen, M.D. at University of Iowa Hospitals and Clinics. Tr. at 844-45. Plaintiff was advised to begin physical therapy, begin breathing exercises, begin counseling, exercise by walking or stationary bike for at least 30 minutes 5 days per week, lose 10 to 20 pounds with a goal of losing 35 pounds. Tr. at 844. Plaintiff was offered a two-week spine rehabilitation program. Tr. at 845.
On March 26, 2013, Plaintiff saw Brent A. Overton, M.D. with complaints of pain down the lower left lower extremity. Plaintiff had previously undergone a left L4-5 laminectomy in March 2012. Tr. at 775.
On November 12, 2014, Plaintiff saw Lisa R. Johnson, M.D. at North Liberty Family Health Center. Tr. at 395-97. Plaintiff was seen for depression the symptoms of which were under improved control.
On April 8, 2015, Plaintiff saw Dr. Johnson. Tr. 405-07. Plaintiff reported having moderate mood symptoms. Plaintiff reported being back to work for a few days and had been able to concentrate reasonably well. Tr. at 405.
On May 6, 2015, a chest x-ray showed a calcified granuloma which did not require follow up. Tr. at 1186.
On May 8, 2015, Plaintiff was seen for sinus congestion. Tr. at 1183-85.
On July 23, 2015, Plaintiff saw Dr. Johnson and reported that her symptoms of depression were under fair control. Plaintiff also complained of headaches about three times per week. About once per week the headache was more severe causing her to leave work feeling very nauseated. Tr. at 413.
On August 7, 2015, Plaintiff was seen for psychotherapy. Tr. at 1321-26. Plaintiff complained of depression and anxiety. Plaintiff reported her medication was Cymbalta. Tr. at 1381. The treatment plan included weekly psychotherapy with continued psychopharmacotherapy. Diagnoses were major depressive disorder and general anxiety disorder. Tr. at 1326. This report is not signed and there is no indication who Plaintiff saw nor is the clinic identified.
Plaintiff was seen at the mental health clinic on August 14, 2015. Tr. at 1327-28. Plaintiff reported that her mood was "okay." Plaintiff was working on the estate of her parents, and her feelings of grief. Tr. at 1327. This note indicated that Plaintiff was seeing Peggy L. Sharr, LISW. Tr. at 1328. Thereafter, Plaintiff was seen at the mental health clinic two or three times per month until June 30, 2017. Tr. at 1329-1421. Treatment notes indicate that during the treatment notes indicate sessions focused on family issues regarding the settlement of Plaintiff's parents' estate. Plaintiff saw Ms. Sharr 14 times between November 3, 2017 and November 1, 2018. The purpose of these sessions was to help Plaintiff deal with her, and her husband's, health issues and the stress related thereto. Tr. at 2318-2344.
On September 1, 2015, Plaintiff saw a physician's assistant at Steindler Orthopedic Clinic. Plaintiff complained of low back pain. It was noted that Plaintiff had undergone a L4-5 laminectomy in 2012. Tr. at 361. X-rays did not show spondylolisthesis, and it was noted that disc spaces were well maintained. Diagnosis was lumbar radiculitis . Tr. at 362. Plaintiff's pain was worse after she went on a bike ride over uneven ground. Plaintiff was given prescriptions for anti-inflammatories and physical therapy and was encouraged to exercise. She was also encouraged to begin a strength training and a stretching regimen. On September 11, 2015, Plaintiff received an epidural steroid injection. Tr. at 371. On September 22, 2015, Plaintiff saw the physician's assistant. Plaintiff complained of low back pain. Plaintiff had tried physical therapy, epidural injection and rest but continued to have pain in the low back and down the left leg. After examination the diagnostic impression was lumbar radiculitis. Tr. at 375. On September 23, 2015, Plaintiff underwent an MRI which showed: 1) L4-5 status post left hemilaminectomy with a broad-based disc protrusion and mild canal stenosis without significant change (from a study dated March 26, 2013); and 2) L5-S1 new posterior right paracentral disc protrusion potentially irritating the right S1 nerve root. Tr. at 581.
Radiculitis is an inflammation. Stedmans Medical Dictionary 748589.
On October 1, 2015, Frederick L. Dery, M.D., gave Plaintiff a lumbar TFESI (transforaminal epidural steroid injection).
On October 16, 2015, Plaintiff saw Brent A. Overton, M.D., at Steindler Orthopedic Clinic. Plaintiff complained of low back pain and lower extremity pain. The pain developed after a motorcycle ride. Plaintiff complained of numbness and tingling down the left leg. Plaintiff was working four hours per day. Plaintiff's medical conditions were noted to be depression, anxiety, migraines, acid reflux, and chronic sinusitis. Surgical history included appendectomy and hysterectomy, sinus surgery and a lumbar back surgery. Tr. at 386. On examination, there was a well-healed midline incision. There was tenderness to palpation over the lumbar spine, range of motion was restricted by pain, bilateral lower extremity strength was 5/5, straight leg test was mildly positive on the right, sensation was intact in both legs, reflexes were 2+ and gait was normal with no ataxia. Diagnoses were acute aggravation of chronic low back pain, and atypical increased degree of nerve root irritation. The doctor recommended epidural injections. No surgery was recommended. Tr. at 387. Plaintiff received the injection on October 22, 2015. Tr. at 389.
On November 3, 2015, Plaintiff saw Dr. Johnson. Plaintiff reported that the symptoms of depression were under reasonable control. The doctor wrote: "She has been struggling with her back pain again. She has been having pain in her right leg. She has had multiple injections. She has tried [physical therapy] again. She is on a 4 hour [work] restriction." Tr. at 417.
On November 12, 2015, Plaintiff saw Dr. Dery. Plaintiff rated her pain as 8 on a progressive 10-point scale. Tr. at 353. The doctor diagnosed post-laminectomy syndrome, lumbar. Plaintiff and the doctor discussed available treatment options. In response to Plaintiff's questions, the doctor wrote that he would work to get Plaintiff gainfully employed, but that ultimately, she may need to apply for long-term disability if she did not receive adequate pain relief from an intrathecal pump. Tr. at 354.
As noted above, Plaintiff's alleged onset of disability is December 23, 2015.
On January 7, 2016, Plaintiff saw Maruti R. Kari, M.D. Tr. at 427-31. Plaintiff was seen for chronic back pain which she rated as 9/10. The pain was in the lower back and radiated into both legs with numbness, tingling, and weakness. The pain was exacerbated by standing, sitting, running, and walking. Tr. at 427. The doctor reviewed the MRI dated September 23, 2015. See, Tr. at 581. The study showed paracentral disc protrusion potentially irritating the right S1 nerve root. Tr. at 430. Dr. Kari diagnosed lumbar radiculopathy and post laminectomy pain syndrome-lumbar. Tr. at 431.
On March 29, 2016, Plaintiff saw Dr. Kari. Tr. at 440-43. The doctor and Plaintiff discussed a trial of an intrathecal pump with morphine. Tr. at 443. On March 30, Plaintiff was given a single-shot spinal morphine. Tr. at 446.
On April 8, 2016, Plaintiff saw Dr. Kari who gave Plaintiff an epidural blood patch under C-arm guidance. Tr. at 1109-10.
On April 10, 2016 Plaintiff saw Dr. Kari after developing significant postdural puncture headaches. Plaintiff was given an epidural blood patch. Tr. at 926.
On May 20, 2016, Plaintiff saw Dr. Kari. Tr. at 454-65. Plaintiff presented for a permanent intrathecal pump. Tr. at 457.
On May 26, 2016, Plaintiff saw Dr. Kari. Tr. at 1090-93. Bandages and sutures were removed. Plaintiff was instructed not to lift more than 10 pounds for two weeks. 1093.
On June 8, 2016, Plaintiff saw Dr. Kari. Tr. at 1086-89. The doctor adjusted Plaintiff's medications. Tr. at 1089
On June 21, 2016, Plaintiff saw Dr. Kari. Tr. at 466-71. The dosage of medication in the intrathecal pump was adjusted. Tr. at 470.
On July 5, 2016, Plaintiff saw Dr. Johnson for hypertension. Tr. at 473-77.
On August 4, 2016, Plaintiff saw Dr. Kari for an adjustment and refill of the intrathecal pump. Tr. at 480-85.
On August 22, 2016, Plaintiff saw Dr. Johnson for hypertension. Tr. at 487-90. Plaintiff reported episodes of chest pain. Tr. 487. An EKG showed sinus rhythm with possible old inferior infarct. Although Plaintiff's description of chest pain was atypical, because of the abnormal EKG she was referred to cardiology. Tr. at 490.
On August 24, 2016, Plaintiff saw Michael A. Hajdu, M.D., on referral from Dr. Johnson. Tr. at 500-04. The doctor wrote that he was seen Plaintiff for hypertension and a mildly abnormal EKG, which he suspected was a normal variant. The doctor asked Plaintiff to buy a blood pressure cuff and to return in a month. Tr. at 503. Plaintiff underwent a complete transthoracic 2D study with color flow and doppler. Tr. at 756-57. No abnormalities were seen. Tr. at 757.
On September 27, 2016, Plaintiff saw Michael A. Hajdu, M.D. Tr. at 493-97. Plaintiff reported that her systolic (the upper number) pressures were running between 151 to 168. The doctor added amlodipine to her other medications and asked her to continue checking the blood pressure. Tr. at 496.
On November 10, 2016, Plaintiff saw Dr. Kari for a refill of medication in her intrathecal pump. Tr. at 505-10.
On November 30, 2016, Plaintiff saw Dr. Hajdu. Tr. at 512-17. Plaintiff's blood pressure was "much improved" but not quite as much as the goal. The doctor was hopeful that with continued pain management as well as the medication he was prescribing Plaintiff would achieve adequate blood pressure control. Tr. at 516.
On December 7, 2016, Plaintiff saw Dr. Johnson for depression. Tr. at 518-20. Plaintiff reported that the symptoms of depression had been under good control with minimal mood symptoms. Tr. at 518.
On February 14, 2017, Plaintiff saw Dr. Johnson for an annual GYN examination. Tr. at 1051-55
On February 16, 2017, Plaintiff saw Dr. Kari. Tr. at 528-32. Plaintiff had received a transforaminal epidural steroid injection at L4-and L5 on December 20, 2016, but she reported no relief from the injection. Tr. at 528. The doctor prescribed methocarbamol and ordered an MRI of the lumbar spine. Tr. at 532. The MRI (Tr. at 828-29) showed: 1) nonspecific 3.4 cm peripherally enhancing fluid collection in the posterior midline superficial soft tissue at L4-L5, possibly representing an abscess, hematoma, or seroma – does not appear to involve the deeper paraspinal musculature tissues; 2) mild disc degeneration from L3 to S1; 3) small disc osteophyte protrusion at L5-S1 which contacts the spinal segment of the right S1 nerve root; 4) mild chronic spinal stenosis at L4-L5. Tr. at 699.
On April 7, 2017, Plaintiff saw Daniel R. Olney for chronic sinusitis. Tr. at 2210-14.
On April 13, 2017, Plaintiff saw Dr. Kari. Tr. at 535-39. Plaintiff's pump was refilled with medication. Tr. at 539.
On May 11, 2017, Plaintiff saw Roger E. Marz, Ph.D. for a psychological evaluation. Tr. at 1128-30. On mental status examination, it was noted that Plaintiff had difficulty staying in one position for very long and that she alternated between standing and sitting. Plaintiff scored 30 out of 30 on the Mini Mental State Exam – no abnormalities were noted. On the Beck Depression Inventory, Plaintiff endorsed mild symptoms of depression which she related to her physical problems and to being out of work. Tr. at 1129. Dr. Marz diagnosed adjustment disorder with mixed anxiety and depressed mood, chronic. Tr. at 1130.
On May 17, 2017, Plaintiff saw Dr. Johnson. Tr. at 547-49. Plaintiff reported that her symptoms of depression had been under good control and she reported feeling well. Plaintiff reported that her back pain had been more intense and that she was struggling with sleep. Plaintiff denied difficulty performing routine daily activities, social withdrawal, loss of interest in pleasurable activities, or out of control feelings. Plaintiff said she was able to take care of herself. Tr. at 547.
On May 18, 2017, Scott Shafer, Ph.D., a State agency psychological consultant opined that Plaintiff's mental impairment is not severe. In support of that opinion, Dr. Scott noted that Plaintiff was able to sustain competitive employment until physical symptoms forced her to stop. Plaintiff's treatment had been limited and the examining source found no significant limitations. Dr. Shafer found Dr. Marz' opinion consistent with the other evidence in the record. Tr. at 82.
Also on May 18, Rene Staudacher, D.O. a State agency medical consultant evaluated Plaintiff's physical impairments and determined that Plaintiff retained the residual functional capacity to lift a maximum of 20 pounds occasionally and 10 pounds frequently; stand and walk about six hours out of 8; sit about 6 hours out of 8. Tr. at 84. Dr. Staudacher reviewed the medical evidence. Tr. at 85-86. The doctor noted Plaintiff's complaint of back pain following a motor-cycle ride. On examination, no focal deficits were noted, and Plaintiff ambulated independently with an antalgic gait. Dr. Staudacher noted that Dr. Dery did not advocate for long term disability but said he would work to get Plaintiff gainfully employed. The doctor noted examination reports, MRI reports, and x-ray reports which showed mild degenerative disc disease of the lumbar spine. The doctor noted that when Plaintiff was seen on February 17, she rated her pain at level 8, but on examination her gait, strength, reflexes, sensation and range of motion were all normal. Dr. Staudacher noted that in spite of claiming to be limited to lifting 5-10 pounds and walking 25 yards, those limitations were not consistent with the objective medical evidence. Tr. at 85. The doctor concluded the review by noting the absence of any restrictions from treating physicians. Tr. at 86.
On May 30, 2017, Plaintiff saw Dr. Hajdu for a six month-follow up. Tr. at 551-54. The doctor wrote: "Either from treating her blood pressure, or from controlling her pain, her blood pressure is now much better controlled." Tr. at 552.
On June 1, 2017, Plaintiff saw Dr. Kari. Tr. at 723-28. On musculoskeletal examination no abnormalities in gait, reflexes, or strength. There was tenderness to palpation in the lower back, and straight leg raise was positive on the left. Tr. at 727.
On June 22, 2017, Plaintiff saw Dr. Kari. Tr. at 556-60. Plaintiff described her back pain as continuous aching, cramping, throbbing and numbness that radiates to the buttocks and feet. Tr. at 556. The doctor ordered x-rays of Plaintiff's sacroiliac joints and wrote that sacroiliac joint injections would be considered. Tr. at 560.
On August 22, 2017, Serena L. Curier, ARNP gave Plaintiff trigger point injections and refilled her pain pump. Tr. at 1428-69.
On August 24, 2017, State agency psychological consultant Vincent Marziano, Ph.D., affirmed Dr. Shafer's findings. Tr. at 97.
On September 5, 2017, State agency medical consultant Michael Finan, M.D. concluded his review of the evidence: "Claimant's allegation of worsening function status since this application was initially closed is not supported by the evidence. The initial RFC is affirmed." Tr. at 101.
On September 27, 2017, Plaintiff saw Dr. Johnson for depression and to discuss the side effects of the medication. Plaintiff reported that her husband had moved out of the house telling her that he was not happy. Tr. at 2354.
On September 28, 2017, Plaintiff was taken to an emergency department by her children. Plaintiff had been texting disturbing information. When the recipient of the texts went to Plaintiff's home, they discovered a loaded gun and another gun that was not loaded. On the advice of the police and of her children, Plaintiff agreed to be seen at the hospital. Plaintiff denied suicidal ideation but expressed that since starting the morphine pump she was more emotionally unstable and depressed. Because Plaintiff denied suicidal ideation, intention or plan, and because she agreed to call the emergency department if she did have such thoughts, she was discharged. Discharge diagnosis was "history of depression but adjustment disorder ultimately." Tr. at 2357-58. On October 9, 2017, Plaintiff saw Dr. Olney for sinusitis. Tr. at 2215-18.
On October 23, 2017, Plaintiff saw Dr. Johnson for mental health medication refills and for evaluation of a sinus infection. Tr. at 2360-63. Plaintiff reported that her symptoms were under improved control. Plaintiff was caring for her granddaughter a few days per week, and was able to care for herself. Tr. at 2360.
On October 24, 2017, Plaintiff saw Dr. Kari for a medication pump refill, but the medication had not arrived at the clinic, so the appointment was rescheduled. Tr. at 1495-1516. Plaintiff returned to the clinic on October 26. Tr. at 1518-61.
On November 1, 2017, Plaintiff saw Dr. Johnson complaining of hives. Tr. at 2364-66 The doctor diagnosed an allergic reaction to penicillin. Tr. at 2366.
On November 30, 2017, Plaintiff saw Dr. Johnson for medication refill. Tr. at 2380-83. Plaintiff reported that her mental status was doing well on the prescribed medication and that she was able to handle her stressors. Tr. at 2380.
On December 20, 2017, Plaintiff saw Dr. Kari. Tr. at 2386-91. The doctor refilled Plaintiff's pain pump and administered trigger point injections. Tr. at 2390.
On December 27, 2017, Plaintiff saw Dr. Johnson for medication refill. Plaintiff reported that her depression had been well controlled. Tr. at 2393.
On December 28, 2017, Plaintiff saw Dr. Kari for management of chronic back pain. Tr. at 1629-35. The doctor's diagnoses were myofascial pain syndrome, presence of intrathecal pump, and post lumbar puncture syndrome. Tr. at 1634. The procedure performed was placement of epidural electrodes for a trial of spinal cord stimulation under c-arm guidance. Tr. at 1635.
On January 2, 2018, x-rays showed the spinal stimulator leads present in the lower thoracic region. Mild osteoarthritis in the lower lumbar region was also seen. No acute abnormality in the lumbar spine was seen. Tr. at 1741.
On January 5, 2018, Plaintiff saw Dr. Kari. Plaintiff reported a 50 per cent improvement after placement of the spinal cord stimulator. Tr. at 1791.
On February 1, 2018, Plaintiff saw Dr. Kari. Plaintiff said she was still unsure if she wanted to proceed with a spinal cord stimulator implant. Tr. at 1822.
On April 4, 2018, Dr. Kari refilled Plaintiff's pain pump. Tr. at 1866.
On April 9, 2018, Plaintiff was seen by Tomohiro Tanaka, M.D., at the University of Iowa Hospitals and Clinics hepatology clinic. It was noted that Plaintiff's primary care physician noted elevated liver enzymes. A CT of the abdomen showed severe fatty infiltration of the liver. The CT also showed a 15 mm nodular structure on the esophagitis. Tr. at 2253. Plaintiff's height was recorded as 5 foot, 9 inches, weight 258 pounds, and body mass index of 38.16 Kg/m2. The doctor wrote that the objective medical evidence would be evaluated, and that Plaintiff would be advised to achieve a 10 per cent reduction in weight. Tr. at 2255.
On April 16, 2018, Plaintiff was seen by Heather M. Ciliberto, M.D. for evaluation of a cherry angioma which was removed and biopsied. Tr. at 2447.
On May 31, 2018, Dr. Kari refilled Plaintiff's pain pump. Tr. at 1917-18.
On June 4, 2018, Plaintiff saw Dr. Hajdu for an annual follow up for hypertension. Tr. at 2460-63. The doctor wrote that her hypertension was under excellent control. Tr. at 2463. On June 18, 2018, Plaintiff called Dr. Kari's clinic and spoke to a registered nurse to report 1 day of relief from the right SI injection on May 31. Tr. at 1980. Dr. Kari ordered an MRI. Tr. at 1988.
On July 2, 2018, Plaintiff saw Dr. Johnson for medication refill. Tr. at 2456-59.
On July 18, 2018, an MRI of Plaintiff lumbar spine showed worsening degenerative disc disease at L4-5 includes a shallow central disc protrusion and annular tear, which contributes to possible impingement of the descending right L5 nerve root, Tr. at 1950.
On July 19, 2018, Dr. Kari reviewed the MRI and ordered epidural steroid injection at L4-5 and L5-S1. Tr. at 2030.
On July 26, 2018, Dr. Kari administered right sided transforaminal epidural steroid injections and refilled the pain pump. Tr. at 2039.
On August 8, 2018, Plaintiff underwent ultra-sound and liver doppler studies and at University of Iowa Hospitals and Clinics. The diagnostic impression was: 1) diffuse severe fibrofatty infiltration of the liver without focal lesions; 2) spectral broadening and decreased phasicity of the hepatic veins, likely from hepatocellular disease; 3) changes of the portal hypertension including splenomegaly; 4) otherwise normal study. Tr. at 2274. Plaintiff also underwent an endoscopic gastroduodenoscopy which did not show evidence of portal hypertension. Tr. at 2297.
On August 9, 2018, Plaintiff saw Michael Dolphin, D.O. at Orthopaedic Specialists. Tr. at 1563-64. Plaintiff complained of pain in the lumbar region that was aggravated by lifting overhead and walking. The doctor noted an MRI dated July 18, 2018. Tr. at 1563. X-rays of L5-S1 showed no evidence of degeneration and no malalignment. The doctor reviewed the MRI and discussed options including repeat epidural injection, physical therapy and surgery. The doctor wrote that consideration would be given to L4 and L5 laminectomy /microdiscectomy. Tr. at 1564.
On September 17, 2018, Plaintiff saw Dr. Olney for sinusitis and for new complaints of snoring, poor sleep and fatigue. Tr. at 2221-24. A sleep study was scheduled. Tr. at 2224. Plaintiff was also seen in the University of Iowa Hospitals and Clinics liver clinic on September 17. Tr. at 2308. Dr. Tanaka advised Plaintiff to lose weight. Tr. at 2311.
On September 19, 2018, Plaintiff saw Dr. Kari. Tr. at 2100-06. Plaintiff reported that she had recently been diagnosed with liver disease, stage 3 non-alcoholic and was scheduled to see a dietician to work on weight loss. Tr. at 2101. Plaintiff's pain pump was refilled. Tr. at 2105.
On September 28, 2018, Plaintiff saw Dr. Johnson for medication refill. Tr. at 2494-97, Plaintiff blood pressure was noted to be well controlled. Plaintiff complained of back pain. Tr. at 2495.
On October 17, 2018, Plaintiff saw Dr. Kari. Tr. at 2146. Plaintiff complained of back pain that radiated into the lower extremities. Tr. at 2146. The doctor administered a transforaminal epidural steroid injection. Tr. at 2151.
On October 30, 2018 Plaintiff saw Dr. Olney to discuss the results of the sleep study. Tr. at 2225-28. The sleep study showed a moderate amount of obstruction. Tr. at 2225.
On November 7, 2018, Plaintiff saw Dr. Kari. Tr. at 2512-18. Plaintiff reported no relief from the October injection. Plaintiff reported she was going to take a trip to Arizona for a vacation. Tr. at 2513. Plaintiff's pain pump was refilled with medication. Tr. at 2517. On November 20, 2018, Ms. Sharr submitted a medical source statement. Tr. at 2524-29. When asked to describe her clinical findings, Ms. Sharr wrote: "Her mental status exams ranged from neutral to low mood, as well as anxious; However, she did not experience a good mood consistently. She had difficulty managing life stressors." Tr. at 2524. Ms. Sharr identified the following symptoms: anhedonia ; appetite disturbance; decreased energy; thoughts of suicide; feelings of guilt or worthlessness; generalized persistent anxiety; mood disturbance ; difficulty thinking or concentrating; recurrent and intrusive recollections trauma; persistent disturbance of mood or affect ; Emotional withdrawal or isolation; sleep disturbance. Tr. at 2525. Ms. Sharr wrote that she had observed Plaintiff to have worse pain with anxiety and/or low mood. With check marks, Ms. Sharr indicated that Plaintiff would be absent from work more than four days per month, that Plaintiff is not a malingerer and that Plaintiff can manage benefits in her own best interest. Tr. at 2526.
In a check-the-box format, Ms. Sharr was asked to rate Plaintiff's limitations in 20 domains on a scale of no evidence of limitation, not significantly limited, moderately limited and markedly limited. The following domains are noted to have no evidence of limitation: ability to remember locations and work-like procedures; ability to understand and remember detailed instructions; the Ability to sustain ordinary routine without special supervision; ability to work in coordination with or proximity to others without being distracted by them; ability to interact appropriately with the general public; ability to ask simple questions or request assistance; ability to get along with co-workers or peers without distracting them or exhibiting behavioral extremes; ability to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness; ability to respond appropriately to changes in the work setting; ability to be aware of normal hazards and take appropriate precautions; ability to travel in unfamiliar places or use public transportation; ability to set realistic goals or make plans independently of others.
None of the domains were checked not significantly limited. The following were checked moderately limited: ability to carry out detailed instructions; ability to maintain attention and concentration for extended periods; ability to perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances; ability to make simple work-related decisions; ability to accept instructions and respond appropriately to criticism from supervisors.
One domain was markedly limited: ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable and number and length of rest periods.
Ms. Sharr concluded her opinion by writing: "It is my professional opinion that Kari's mental and physical health would be an impediment to holding employment consistently." Tr. at 2529.
On November 27, 2018, Plaintiff saw Dr. Dolphin. Tr. at 2531-32 The doctor reviewed imaging studies which showed right sided disc protrusion causing L5 nerve impingement. The doctor wrote that surgery may help with Plaintiff's radicular symptoms, but he emphasized that surgery would not help with the lower back pain or any left leg symptoms. After hearing the doctor explain the risks and benefits of the surgery, Plaintiff said she wanted to discuss the matter with her husband and would inform the doctor of her decision. Tr. at 2532. VOCATIONAL EXPERT TESTIMONY
At the hearing on December 18, 2018 – Tr. at 38-74 – George Brian Paprocki was called to testify as a vocational expert. Tr. at 68. In response to a hypothetical question which mirrors the ALJ's residual functional capacity finding, the vocational expert identified the unskilled sedentary jobs cited by the ALJ. Tr. at 70-71. When the vocational expert was asked about the effect of absenteeism on the ability to work, he testified that an absence of 3 days per month would eliminate competitive work. The expert testified: "Most employers follow the general rule that you can't be absent more than one day per month and no more than six to eight days per year." Tr. at 72.
ALJ'S DECISION
At the third step of the sequential evaluation, the ALJ considered whether Plaintiff's musculoskeletal impairment meet or equal listing 1.04 as alleged by Plaintiff. The ALJ found no evidence of nerve root compromise. The ALJ found no evidence of motor loss, muscle weakness, sensory or reflex lost. The ALJ found no evidence of spinal arachnoiditis with a need to change positions or posture more than once every two hours or lumbar stenosis with an inability to ambulate effectively. Tr. at 19. The ALJ also found that Plaintiff's mental impairments, while severe, do not meet or equal the criteria necessary to prevail at the third step of the sequential evaluation. Tr. at 20. The ALJ noted that the State agency psychological consultants found that the mental impairments were not severe, but the ALJ gave Plaintiff the benefit of the doubt and found depression and anxiety to be severe impairments. Tr. at 20-21.
Spinal arachnoiditis is a chronic pain disorder caused by the inflammation of the arachnoid membrane and subarachnoid space that surround the nerves of the spinal cord. Cumella v. Colvin , 936 F.Supp.2d 1120, 1135, n. 45 (D. South Dakota 2013).
Regarding Plaintiff residual functional capacity, the ALJ considered the medical evidence and found that the objective findings fail to provide support for Plaintiff allegations. The ALJ wrote that Plaintiff's obesity was considered as required by Social Security Ruling 02-1p. The ALJ considered the mental impairments, but noted that Plaintiff's memory, judgment, and insight were intact with normal attention and concentration.
Regarding opinion evidence the ALJ found the opinions of the State agency medical consultants were entitled to some weight because of their expertise and thorough review of the evidence. Nevertheless, the ALJ found that the majority of the objective medical evidence indicated that Plaintiff is limited to sedentary exertional activities. The ALJ gave little weight to the psychological consultants' opinions that Plaintiff's mental impairments are not severe. The ALJ noted Ms. Sharr's opinions and noted the opinion rendered on the functional capacity form was inconsistent with the findings recorded in her office notes. Furthermore, the ALJ noted that Ms. Sharr is not an acceptable medical source qualified to provide opinion evidence, but that her opinion was considered as an "other source" Tr. at 27. Finally, the ALJ considered a third-party function report submitted by Plaintiff's husband but found it was inconsistent with the objective evidence as well as Plaintiff daily activities. Tr. at 27.
STANDARD OF REVIEW
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 Lucus v. Saul , 960 F.3d 1066, 1068 (8th Cir. 2020), the Court wrote that it is the task of a reviewing court "... to determine whether the ALJ's decision complies with the relevant legal standards and is supported by substantial evidence in the record as a whole. The Court, quoting Collins v. Astrue , 648 F.3d 869, 871 (8th Cir. 2011) continued: "Legal error may be an error of procedure, the use of erroneous legal standards, or an incorrect application of the law."
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 asserts six errors: 1) Substantial evidence does not support the ALJ's step three finding; 2) the ALJ did not properly consider and weigh the opinion evidence; 3) the ALJ failed to properly evaluate Plaintiff's subjective complaints; 4) physical RFC for sedentary work; 5) mental RFC for sedentary work; 6) the ALJ failed to develop the record.
Although Plaintiff asserts all of the aforementioned errors, the Court will address only one because it is on that point which the case turns. Plaintiff argues that the physical residual functional capacity found by the ALJ is not supported by substantial evidence on the record as a whole because if fails to include the need to be absent from work more frequently than tolerated in competitive employment.
During the sequential evaluation, after it has been determined that a claimant does not prevail at step three, the fact finder turns to an assessment of residual functional capacity. This finding is used at both step four and step five. 20 C.F.R. § 1545 (5) (i & ii).
Residual functional capacity is defined as the most that can be done despite the claimant's limitations. The residual functional capacity finding is based on all the relevant evidence in the case record. 20 C.F.R. § 404.1545 (a)(1). Consideration is given to the "ability to meet the physical, mental, sensory, and other requirements of work ." Id. at (a)(4). ( emphasis added). "When we assess your physical abilities, we first assess the nature and extent of your physical limitations and then determine your residual functional capacity for work activity on a regular and continuing basis . Id. at (b) ( emphasis added). This regulation concludes with a subsection entitled Total Limiting Effects, wherein it is written:
... Pain or other symptoms may cause a limitation of function beyond that which can be determined on the basis of the anatomical, physiological or psychological abnormalities considered alone; e.g., someone with a low back disorder may be fully capable of the physical demands consistent with those of sustained medium work activities but another person with the same disorder, because of pain, may not be capable of more than the physical demands consistent
with those of light work activity on a sustained basis. ...
Id. at (e). Plaintiff asserts that the ALJ failed to account for the need to be absent from work more than allowed for in competitive employment. Plaintiff argues: "Kari has a pain pump that has to be refilled every 6-8 weeks or at least 8 times a year. The entire procedure for the pain pump refill (and the pre-fill and post-fill problems) can sideline Kari for several days." ECF 11 at 57. Continuing, Plaintiff argued:
The ALJ erred in assessing her RFC by failing to include all limitations documented by the medical evidence. In fashioning an appropriate hypothetical question for a vocational expert, the ALJ is required to include all the claimant's impairments supported by substantial evidence in the record as a whole. ... The ALJ's first three hypothetical questions to the VE did not include the limitations/impairments that Kari be able to take breaks whenever she wants for however long she wants, that she would be absent from work in excess of one day per month, or that she would be markedly limited in her ability to complete a normal workday.
Id.
The Court agrees with Plaintiff that the record of this case supports Plaintiff's testimony of frequent absenteeism. The Court went through the record and counted the number of days Plaintiff had medical appointments, many of which were to refill the pain pump, all of which related to her severe impairments – particularly low back pain and mental health care – and all of which would require her to be away from the workplace a significant portion of the workday. The Court counted 38 medical appointments in 2016; in 2017, 33 appointments; in 2018, 32 appointments. Many of these appointments were for mental health care, but a significant number are for treatment of Plaintiff's back impairment, including pain pump. In addition, Plaintiff often missed work because of pain. See Tr. at 59 where Plaintiff testified that while still working, she would miss whole days because of pain – "Some days I just couldn't tolerate the pain or I wasn't sleeping at night ..." Because a residual functional capacity finding must capture the concrete consequences of the claimant's impairment(s), it was error to omit frequent absenteeism from the finding prior to concluding the sequential evaluation.
The Commissioner cites Biestek v. Berryhill , ––– U.S. ––––, 139 S.Ct. 1148, 1154, 203 L.Ed.2d 504 (2019) for the proposition that the threshold of evidentiary sufficiency of substantial evidence is not high – that a reviewing court's review is limited to a determination of whether substantial evidence on the record as a whole supports the decision. ECF No. 12, p. Notwithstanding the ruling in Biestek , in 2020, the Court of Appeals in Noerper v. Saul , 964 F.3d 738, 744 (8th Cir. 2020), the Court wrote: "Our review is not one sided. Rather, ‘[w]e consider the record as a whole, reviewing both the evidence that supports the ALJ's decision and the evidence that detracts from it.’ [ Combs v. Berryhill , 878 F.3d 642, 646 (8th Cir. 2017) ]." In the case at bar, the doctors' statements and Plaintiff's testimony regarding absenteeism detracts from the finding that Plaintiff can work, day in and day out in competitive employment.
The Commissioner argues that the record as a whole supports the ALJ's finding that Plaintiff had the residual functional capacity to perform a reduced range of sedentary work. The Commissioner cites medical notations of normal range of motion in the cervical and lumbar spine, and the absence of motor, sensory or cranial nerve deficit. However, as noted earlier, the Commissioner's regulations as well as Eighth Circuit case law recognize that the effects of impairments are sometimes more severe that would be indicated by the objective medical findings standing alone. The Commissioner notes that Plaintiff's pain and depression are controlled by medication and therefore not considered disabling. However, as noted above Plaintiff testified that in spite of the narcotic pain medication prescribed for her, there were days when her pain was severe enough that she was prevented from working. Furthermore, the frequency of medical visits makes holding a full-time job impossible. It is not enough that a claimant can work sporadically, the test is whether the claimant can work – day in and day out in competitive employment. Anderson v. Heckler , 738 F.2d 959, 960 (8th Cir. 1984). In Parsons v. Heckler , 739 F.2d 1334, 1340 (8th Cir. 1984), the Court wrote: "The Secretary's [now the Commissioner's] determination regarding the ability of a claimant to perform jobs in the national economy must take into account the actual ability of the claimant to find and hold a job in the real world." In Goff v. Barnhart , 421 F.3d 785, 793 (8th Cir. 2005) the Court wrote: "The ALJ must assess a claimant's RFC based on all relevant, credible evidence in the record, including the medical records, observations of treating physicians and others, and an individual's own description of [her] limitations." (internal quotations and citations omitted.)
The Court now turns to step five of the sequential evaluation – whether the claimant can make an adjustment to other work which exists in significant numbers. 20 C.F.R. § 404.1560 (c). Having established that a hypothetical individual limited to unskilled sedentary work would be unable to engage in any of Plaintiff's past relevant work, the ALJ asked the vocational expert to consider additional consequences of Plaintiff's impairments. When the ALJ asked the vocational expert to consider that the hypothetical individual would be absent from work three days per month, the response was that competitive employment would be eliminated. The vocational expert testified: "Most employers follow the general rule that you can't be absent more than one day per month and no more than six to eight days per year."
George Brian Paprocki, has worked as a vocational consultant since 1977. Tr. at 329.
In the decision, the ALJ found that Plaintiff retains the residual functional capacity for unskilled sedentary work. When the ALJ recited the vocational expert's testimony, the discussion about absenteeism was not included.
In Hunt v. Massanari , 250 F.3d 622, 625 (8th Cir. 2001) the Court wrote: "The analysis at step five is of primary concern in this appeal." The Court wrote: "A hypothetical question posed to the vocational expert is sufficient if it sets forth impairments supported by substantial evidence in the record and accepted as true by the ALJ. ... The hypothetical question must capture the concrete consequences of the claimant's deficiencies. ... Likewise, the ALJ may exclude any alleged impairments that she has properly rejected as untrue or unsubstantiated." (internal citations omitted).
In Rhines v. Harris , 634 F.2d 1076, 1079 (8th Cir. 1980), the Court, quoting Celebrezze v. Bolas , 316 F.2d 498, 501 (8th Cir. 1963), wrote: "Mere theoretical ability to engage in substantial gainful activity is not enough if no reasonable opportunity for this is available." Quoting Thomas v. Celebrezze , 331 F.2d 541, 546 (4th Cir. 1964), the Court wrote: "Employers are concerned with substantial capacity, psychological stability, and steady attendance." Finally, quoting Brinker v. Weinberger , 522 F.2d at 18, the Court wrote: "The Secretary need not find a specific job for a claimant. However it must be shown that claimant can realistically perform in existing employment." Like Plaintiff in the case at bar, Rhines suffered from considerable pain for which she underwent physical therapy on a weekly basis and regularly took medication for pain. Rhines testified that she experienced severe and recurrent pain in her back, shoulders, arms, and right foot. Id.
Recall too, the law cited above by the en banc Court in McCoy v. Schweiker , that the residual functional capacity which must be found 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. In the case at bar, we have the testimony of the vocational expert that such is not a possibility for a claimant with Plaintiff's impairments and limitations. The only remaining questions is the appropriate remedy.
In Gavin v. Heckler , 811 F.2d at 1201, the Court held that where the total record is overwhelmingly in support of a finding of disability a reversal with an order to award benefits is appropriate. Likewise, in Parsons v. Heckler , 739 F.2d 1334, 1339 (8th Cir. 1984), the Court held that where further proceedings will only delay the receipt of benefits to which the claimant is entitle, an order awarding benefits is appropriate.
In Beeler v. Bowen , 833 F.2d 124, 127-128 (8th Cir. 1987), the Court wrote.
In a case such as this, however, where the total record overwhelmingly supports a finding of disability and the claimant has demonstrated her disability by evidence on the record as a whole, we find no need to remand. E.g., Cook v. Bowen , 797 F.2d 687, 691 (8th Cir. 1986) ; Smith v. Heckler , 735 F.2d [312] at 318 [(8th Cir. 1984)]. In the instant case, a vocational expert opined that if Ms. Beeler's complaints of pain were found to be credible, she would be unable to do any of her past relevant work and that she could transfer her acquired skills to "a very limited number of jobs." This does not meet the requirement concerning transferable skills.3 Because we find that the claimant's allegations of disabling pain were credible, and that substantial evidence on the record as a whole supports Ms. Beeler's claims of disability within the meaning of the Social Security Act, a remand is unnecessary. Talbott v. Bowen , 821 F.2d 511, 515 (8th Cir. 1987). "Where further hearings would merely delay receipt of benefits, an order granting benefits is appropriate." Parsons v. Heckler , 739 F.2d 1334, 1341 (8th Cir. 1984).
In the case at bar, the medical record clearly establishes Plaintiff's need to be absent several times per month for medical care. The findings that Plaintiff has a residual functional capacity for sedentary work or that there are a significant number of jobs, therefore, are not supported by substantial evidence on the record as a whole. The testimony of the vocational expert leaves no question unanswered. There are no issues left to be resolved by the Commissioner. A remand to take further evidence, therefore, would do naught by delay the receipt of benefits to which Plaintiff is entitled.
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 benefits.
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) ; 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.