Court: District Court, D. Minnesota; June 25, 2012; Federal District Court
The Court, presided over by Chief Judge Michael J. Davis, has reviewed the Report and Recommendation by Magistrate Judge Jeffrey J. Keyes dated June 11, 2012, regarding Plaintiff Sheri Fishbaugher’s application for disability insurance benefits, which had been denied by the Commissioner of Social Security. No objections to the Report and Recommendation were filed within the allowable period. The Court has granted the Plaintiff's Motion for Summary Judgment and denied the Defendant's Motion to Remand. Consequently, the case is remanded for reversal and award of benefits under sentence four of 42 U.S.C. 405(g).
The procedural history indicates that Plaintiff filed her application for disability benefits on March 20, 2007, alleging a disability onset of December 30, 2003, with a last insured date of December 31, 2006. After the initial denial and reconsideration, a hearing was held before an Administrative Law Judge (ALJ) on February 10, 2010, resulting in an unfavorable decision on April 8, 2010. The Appeals Council denied review on April 12, 2011, making the ALJ's decision final.
Plaintiff subsequently filed this action for judicial review on May 13, 2011, and sought a summary judgment. The Commissioner responded with a motion to remand for further proceedings, which the Plaintiff opposed, seeking instead a direct award of benefits.
The medical history detailed in the case includes evaluations for conditions such as fibromyalgia, kidney infections, and back pain, with treatments and referrals documented from various healthcare providers.
Dr. Nehra referred the Plaintiff to Dr. Shabana Pasha for a multi-system evaluation on February 12, 2004, due to her reported low back pain lasting six months, which worsened with fatigue. Tylenol provided only mild relief. The Plaintiff expressed concerns about a potential spinal infection and reported a month-long onset of constipation, possibly exacerbated by recent Percocet use, along with constant lower abdominal discomfort. Physical examination revealed normal findings except for mild abdominal tenderness and lumbosacral tenderness. An MRI conducted on the same day indicated degenerative disk disease at the L2 interspace, mild degenerative changes at adjacent endplates, and spondylosis at L3 and L4 interspaces, along with small presumed kidney cysts.
Later that day, the Plaintiff consulted Dr. Andrea Boon in the Physical Medicine and Rehabilitation Department, where she discussed her daily activities on a farm and her history of back pain, including exacerbation after her second pregnancy and a past car accident. Despite a weight loss related to her attention deficit disorder medication, her back pain persisted and was aggravated by prolonged sitting and riding in a car, with some relief from changing positions or lying down. Ibuprofen was ineffective, and she used an old Percocet prescription. Additionally, she reported new-onset constipation, sleep difficulties, and excessive sweating.
Dr. Boon observed that the Plaintiff appeared distressed and recommended pain management to prevent chronic pain syndrome, along with an MRI, epidural steroid injection, Vioxx, Trazodone for sleep, physical therapy, and a psychiatric evaluation. On February 17, 2004, the Plaintiff followed up with Dr. Pasha to review test results, who noted treatment for degenerative lumbar spondylosis through corticosteroid injection. Despite an initial weight loss, the Plaintiff gained eight pounds; her thyroid function was normal, and other lab results were unremarkable. She also saw Brian Bjerke for physical therapy, focusing on a dynamic lumbar program.
Plaintiff underwent stretches and was advised to continue at home. On February 23, 2004, Dr. Nehra diagnosed her with bilateral flank pain, noting normal CT urogram results and no hematuria, and recommended follow-up with Dr. Boon and Dr. Shabana. During physical therapy that same day, Plaintiff did not experience pain relief and was unable to progress with lumbar exercises due to discomfort. Three days later, she contacted Dr. Pasha, reporting worsening back pain, insomnia, and difficulty with daily activities, leading her to question a possible fibromyalgia diagnosis. Dr. Pasha, considering her clinical presentation and MRI findings, suggested evaluation for chronic pain syndrome/fibromyalgia.
On March 2, 2004, during a consultation with Dr. Colby, Plaintiff discussed her Mayo Clinic evaluations. Dr. Colby noted her self-education on fibromyalgia and her persistent back pain rated at eight or nine out of ten. He prescribed Klonopin and Ultram, and indicated that Plaintiff was unable to bend, lift, or clean, requiring daycare for her child. The following week, she reported feeling "fair," with some improvement in pain but a desire to discontinue Percocet. Dr. Colby prescribed Ultram and continued her other medications, including Vioxx, Klonopin, Lexapro, Adderall, and Trazodone. Ten days later, Plaintiff reported good progress with treatment, having recently traveled with few issues. Dr. Colby provided OMT and hot packs.
On March 24, 2004, Dr. Moutvic and Nurse Miller assessed Plaintiff for fibromyalgia at the Mayo Clinic. Her medical history included chronic urologic dysfunction, recurrent infections, and back pain diagnosed as osteoarthritis and myofascial pain. She expressed concerns about fibromyalgia, listing various symptoms such as fatigue, poor sleep, headaches, and cognitive issues, which were exacerbated by exertion and stress. Additionally, she received twenty-eight hours a week of home health aide services and was taking Adderall for adult attention deficit disorder.
During the evaluation, Plaintiff's mental status indicated no anxiety but somewhat pressured speech, with normal memory. Neurological examination revealed balance difficulties, normal reflexes and sensation, and full joint range of motion, though she was tender at all eighteen standard tender points. The straight leg raise test caused significant pain but not in a radicular pattern. Lab tests indicated slight anemia but were otherwise normal. Dr. Moutvic diagnosed her with fibromyalgia and recommended a one-and-a-half day Fibromyalgia Treatment Program, with the Pain Rehabilitation Program as a follow-up if necessary.
The Fibromyalgia Treatment Program aimed to alleviate the nervous system's heightened sensitivity to stimuli and enhance sleep, fitness, and exercise. Dr. Moutvic opted not to alter the Plaintiff's medications, which included Trazodone and Lexapro. On March 25, 2004, after completing the program, the Plaintiff consulted Dr. Christopher Sletten at the Mayo Clinic Pain Rehabilitation Center, expressing a need for more intensive treatment due to significant pain affecting her ability to manage farm and household tasks. Dr. Sletten recommended a three-day treatment program involving physical and occupational therapy.
On April 2, 2004, the Plaintiff rated her pain as eight out of ten during a follow-up with Dr. Colby, expressing concerns about participating in the Mayo rehabilitation program due to impending farm work. Dr. Colby provided OMT and hot packs. During a follow-up on May 12, 2004, the Plaintiff reported increased stress from her step-daughter moving in after her mother’s death, which Dr. Colby believed exacerbated her fibromyalgia. He discontinued Lorazepam and increased her Trazodone dosage. A few weeks later, despite improved sleep from Trazodone, the Plaintiff reported worsening fibromyalgia symptoms, with marked tenderness and spasms noted during examination.
On May 24, 2004, the Plaintiff rated her pain as nine out of ten, attributing it to overexertion on the farm. Dr. Colby observed that her symptoms improved when she did not overexert herself. Subsequent visits included treatment for a bladder infection and feedback on increased pain following a long trip to California. Although she experienced some improvement from physical therapy, her back pain worsened afterward.
By August 18, 2004, the Plaintiff presented with low blood sugar levels and was diagnosed with fibromyalgia, fatigue, and hyperglycemia, prompting further treatment and lab tests. Subsequent visits included complaints of widespread pain, sleep difficulties, weight gain, and symptoms indicating perimenopausal syndrome. Dr. Colby prescribed dietary consultations and a Tens Unit for pain management.
On November 3, 2004, the Plaintiff reported a fair state of health but admitted to overexertion, leading to increased back pain. In December, she continued to struggle with back pain and emotional distress, prompting Dr. Colby to add Celebrex to her regimen. By January 3, 2005, the Plaintiff reported ongoing issues with back pain and headaches, but noted some improvement in fibromyalgia symptoms from Skelaxin, alongside other medications including Adderall, Percocet, Keflex, and Tazorac.
Plaintiff experienced significant pain after falling on ice, prompting a visit to Dr. Colby. An examination revealed muscle spasms in various regions, but no fractures were detected. Dr. Colby diagnosed her with a thoracic lumbar sprain and prescribed medication. Six days later, although improved, Plaintiff rated her pain as eight out of ten. During a follow-up in February 2005, she reported pain in her back and neck, along with bowel issues. Dr. Colby continued treatment with osteopathic manipulative treatment (OMT) and hot packs. On April 4, 2005, Dr. Colby informed Disability Determination Services of Plaintiff's inability to work due to severe back pain and fibromyalgia, noting her inability to perform daily activities without needing frequent rest.
On April 25, 2005, Plaintiff underwent a psychological evaluation by Dr. Debra Moran for the Social Security Administration. She described a history of an abusive first marriage, raising children, and multiple past occupations, including running a movie theater and an in-home daycare. Diagnosed with fibromyalgia in March 2004, Plaintiff reported chronic pain, severe fatigue, and depression, with pain levels often rated between seven and ten. Daily tasks were challenging; she struggled with personal hygiene and household chores, and her activities were significantly limited due to pain.
Dr. Moran's evaluation noted Plaintiff's mental status was normal, with adequate memory and a euthymic mood. Diagnosed with major depressive disorder, ADD, and fibromyalgia, Dr. Moran suggested that while Plaintiff’s pace might be slow, she could persist adequately. Concentration was expected to be limited, particularly during periods of increased pain, but she could understand simple instructions and interact appropriately in a work environment.
On May 12, 2005, Dr. Alan Suddard assessed the Plaintiff's medical records and completed a Physical Residual Functional Capacity (RFC) Assessment for the Social Security Administration, concluding that the Plaintiff could frequently lift ten pounds, stand or walk for two hours, and sit for six hours in an eight-hour workday. He noted a lack of objective findings supporting the Plaintiff’s pain complaints and prescribed aerobic exercise, indicating no barriers to seated work.
On the same day, a state psychological consultant evaluated the Plaintiff’s mental health, finding mild restrictions in daily activities and social functioning, alongside moderate difficulties in maintaining concentration, attributed to ADHD and major depressive disorder.
On May 28, 2005, the Plaintiff sought emergency treatment for a severe headache, which was relieved with medication after a negative CT scan and normal physical examination.
On February 12, 2007, Dr. Randall Gall evaluated the Plaintiff's left knee pain, which had persisted for six months. An MRI revealed a popliteal cyst, laterally subluxed patella, and chondromalacia, leading to a recommendation for a quad strengthening program.
On July 23, 2007, Dr. Howard Atkin submitted a Physical RFC Assessment to the Social Security Administration, limiting the Plaintiff to medium exertional work with occasional climbing and kneeling, which was later affirmed by Dr. Sandra Eames on December 11, 2007.
On August 27, 2007, Dr. Daniel Carlson conducted a psychological evaluation, where the Plaintiff attributed her depression to physical conditions including fibromyalgia and degenerative disk disease. She reported ADHD symptoms that improved significantly with Adderall, while maintaining a household with assistance from a personal care attendant. Despite some issues with family acceptance of her limitations, the Plaintiff's mental status was assessed as normal, and she reported a good mood during the evaluation.
Dr. Carlson observed that the Plaintiff did not show significant limitations from Attention Deficit Disorder (ADD) in her educational or work history, assessing her with a Global Assessment of Functioning (GAF) score of 75. He concluded that her mental impairments allowed her to perform work tasks with adequate persistence and pace, to interact appropriately with coworkers and supervisors, and to manage the stress of an entry-level job. On September 4, 2007, Dr. Thomas Kuhlman, a state agency consultant, evaluated the Plaintiff and determined she did not have a severe mental impairment, a conclusion later affirmed by Dr. Russell Ludeke on December 11, 2007.
On February 14, 2008, Dr. Colby indicated that the Plaintiff required personal care assistant (PCA) services. Subsequently, on October 17, 2008, he endorsed a Fibromyalgia Residual Functional Capacity Questionnaire, which stated that, prior to December 2006, stress exacerbated the Plaintiff's symptoms, but she was not malingering. The questionnaire revealed that she experienced widespread pain daily, worsened by various factors, and that her pain severely impacted her attention and concentration. She could walk 200 feet without severe pain and could sit or stand for only thirty minutes at a time, totaling less than two hours per day in each position. She required breaks every thirty minutes and could only lift and carry five pounds in a competitive work environment. Repetitive motions increased her pain, and she had limitations in grasping, fine manipulation, reaching, and could not stoop or crouch. The form indicated she experienced more bad days than good and would likely miss work over four times a month.
During her testimony at the administrative hearing on February 10, 2010, the Plaintiff described her daily routine, which included staying in bed until late morning, engaging in light activities like knitting, and relying on a PCA for household tasks and medication reminders. She participated in family activities, taught briefly at her church, and was involved in an online fibromyalgia support group but did not socialize with friends. Her last employment involved assisting her husband on their farm, which she had to leave due to her illness.
Plaintiff engaged in stretching exercises bi-weekly and resorted to taking Percocet along with other medications to manage pain, which resulted in dry mouth and sleepiness. She expressed difficulty working due to frequent bathroom needs, inability to sit still, and challenges with focus and concentration. Although she experienced knee pain linked to obesity, she reported improvement in that area. Plaintiff suffers from monthly migraine headaches and describes her overall pain as pervasive, akin to constant flu-like symptoms. Her activity levels fluctuated; on good days, she might be active for a few hours but needed breaks every fifteen minutes, while on bad days, she remained mostly in bed and wore pajamas.
During the hearing, she clarified her limited use of a four-wheeler, stating she only rides to give her son a ride a couple of times a year. She explained a record of walking for eleven hours at a mall was part of a school program for her son, which led to exhaustion for several days afterward. Regarding a reference to hauling hay, she indicated that her involvement was minimal, primarily sitting in a truck while her husband loaded it, and she no longer participated in farm work. She doubted her ability to stand for thirty minutes, frequently needing to lie down after sitting, and could walk 200 feet and lift five pounds.
Plaintiff reported experiencing depression linked to her pain but found relief with Cymbalta for both depression and fibromyalgia. Medical expert Dr. Jared Frazin testified that she did not meet specific impairment listings and supported Dr. Colby’s Residual Functional Capacity (RFC) assessment. Vocational expert Kenneth Ogren provided testimony regarding a hypothetical individual with similar limitations, concluding that such a person could not perform past relevant work but could undertake other roles, including information aide, inspector, and polisher, with available job numbers in Minnesota being 21,000, 1,200, and 3,000, respectively.
The ALJ evaluated a hypothetical scenario regarding a claimant with fluctuating symptoms that would prevent consistent work attendance, limiting them to part-time work and resulting in more than two absences per month. The vocational expert indicated that no jobs would be available for such an individual. On April 8, 2010, the ALJ issued a decision denying the claimant's application for disability insurance benefits, concluding that the claimant was not disabled under the Social Security Act from the alleged onset date of December 30, 2003, to the date last insured, December 31, 2006. The ALJ followed a five-step evaluation process as outlined in the Code of Federal Regulations.
1. The claimant had not engaged in substantial gainful activity during the relevant period.
2. The claimant was found to have severe impairments, including degenerative lumbar spondylosis, fibromyalgia, obesity, and various mental health issues. Headaches and left knee pain were deemed nonsevere.
3. The claimant's impairments did not meet or medically equal any listed impairments.
4. The ALJ assessed the claimant's residual functional capacity (RFC) to perform sedentary work, noting specific limitations based on mental impairments, including mild restrictions in daily activities and moderate difficulties in social functioning, while finding no episodes of decompensation. The assessment did not establish the “C criteria” of listed mental impairments.
Overall, the ALJ's findings supported the conclusion that the claimant was not disabled during the specified time frame.
The ALJ determined that the Plaintiff had physical limitations, restricting her to lifting 10 pounds occasionally and 5 pounds frequently, requiring easy access to toilet facilities on the same floor, allowing position changes every 30 minutes, and permitting only occasional overhead work. The Plaintiff faced limitations in bending, stooping, crouching, crawling, twisting, and climbing, and could not tolerate moderate exposure to vibrations, hazardous equipment, or significant changes in temperature or humidity. Additionally, her interactions with others were limited to brief and superficial contact. At step four, the ALJ concluded that the Plaintiff could not perform her past work as a farmer. However, at step five, based on a vocational expert's testimony, the ALJ found that there were other significant job opportunities in the national economy suitable for the Plaintiff. Consequently, it was concluded that the Plaintiff was not “under a disability” as defined by the Social Security Act from December 30, 2003, through December 31, 2006.
The discussion outlines the standard for awarding Social Security disability benefits, defining “disability” as an inability to engage in substantial gainful activity due to medically determinable impairments lasting at least 12 months. The review of the Commissioner's decision is limited to whether it is supported by substantial evidence in the record. The definition of substantial evidence is explained as relevant evidence that a reasonable mind might accept as adequate to support a conclusion, distinct from a mere search for supportive evidence. The court's review takes into account all evidence in the record that may detract from the weight of the findings, emphasizing that the court cannot substitute its judgment for that of the ALJ.
The court's stance is that it cannot reverse the Commissioner's decision solely based on the existence of evidence supporting a contrary conclusion. The burden of proof lies with the claimant to demonstrate eligibility for disability benefits under the Social Security Act. Once the claimant shows an inability to perform past work, the burden shifts to the Commissioner to prove two points: the claimant's residual functional capacity to perform other work and the availability of such work in significant numbers in the national economy.
In this case, the Commissioner does not seek to uphold the Administrative Law Judge's (ALJ) decision, acknowledging that the ALJ incorrectly dismissed the opinions of a treating physician and a medical expert due to an erroneous belief that their opinions were not applicable to the relevant period. The Commissioner calls for a remand for further proceedings, citing the presence of contradictory medical and non-medical evidence needing reevaluation by the ALJ, and arguing that the evidence does not overwhelmingly support an outright benefits award. The Commissioner also highlights that the claimant's activities contradict her disability claims and emphasizes the need for the ALJ to review differing Residual Functional Capacity (RFC) opinions from the treating physician and state agency physicians.
The plaintiff, opposing the remand, seeks a reversal for an award of benefits, asserting that the treating physician's opinion, supported by the medical expert, indicates a restriction to limited sedentary and part-time work. The plaintiff argues that remand is unnecessary since the vocational expert confirmed an inability to perform past relevant work or any other work based on the treating physician’s RFC assessment. Additionally, the plaintiff contends that the ALJ did not reference state agency physicians' opinions as grounds for rejecting the treating physician’s view and asserts that if remand occurs, it should not allow for further evidence expansion to support a denial of the claim.
Remand is typically necessary when an ALJ's disability determination lacks substantial evidence, particularly if the ALJ failed to fully develop the record. However, if the record is complete and overwhelmingly supports a disability finding, an immediate award of benefits may be appropriate. Non-treating practitioners' opinions generally do not provide substantial evidence unless supported by solid medical data. In contrast, a treating physician's opinion is given controlling weight if well-supported by clinical techniques and consistent with other substantial evidence. A consulting physician's opinion can be substantial if it is backed by more thorough evidence or contradicts the treating physician's views.
In this case, the ALJ overlooked that Dr. Colby's assessment of the claimant's fibromyalgia-related limitations was backed by acceptable clinical methods, as the diagnosis was based on consistent symptoms and trigger point findings. The absence of typical objective findings, such as joint swelling, does not negate the diagnosis of fibromyalgia. The ALJ should have afforded Dr. Colby’s opinion controlling weight since it aligned with the claimant's subjective pain complaints and was consistent with other evidence in the record.
The Commissioner suggests that the case be remanded for the ALJ to evaluate potential conflicts in Dr. Colby's opinions from 2005 and 2008, which indicated the claimant's significant activity limitations and need for rest after attempting to be active. These opinions were corroborated by the claimant's reports during medical evaluations and treatments for fibromyalgia.
Dr. Colby's 2008 RFC opinion limits the Plaintiff's sitting and standing to 30 minutes at a time and less than two hours daily, aligning with his earlier 2005 opinion that the Plaintiff could not engage in these activities for any length of time. The only noted discrepancy between the two opinions is that the 2005 assessment stated the Plaintiff could not carry or lift anything over approximately 55 pounds, while the 2008 opinion allowed for occasional lifting of less than ten pounds. The Plaintiff believed the 55-pound limit was a typographical error, a view supported by the medical expert. The ALJ could assign more weight to nonexamining state agency consultants' RFC opinions if those opinions were better substantiated than Dr. Colby's. However, that was not the case, as the relevant physical RFC, not mental, was under consideration. Dr. Suddard's opinion, which the ALJ considered but did not fully adopt, was based on a perceived lack of objective findings for the Plaintiff's pain complaints and suggested aerobic exercise without establishing it as an RFC. The Plaintiff's fibromyalgia diagnosis supports her pain claims, which are exacerbated by factors such as fatigue and prolonged sitting. Additionally, Dr. Atkin's less restrictive RFC opinion focused on issues related to migraines and knee conditions, without considering fibromyalgia, thus not conflicting with Dr. Colby's findings. Therefore, remand for weighing the medical opinions is unnecessary. Regarding the Plaintiff's credibility, the ALJ had previously found that treatment was generally successful, contradicting the Plaintiff's reports of frequent and severe symptoms. The ALJ also noted the Plaintiff's failure to engage in recommended rehabilitation and exercise, further supporting the ALJ's conclusions.
Plaintiff's explanations regarding her daily activities and limitations are well-supported by substantial evidence in the record. Although Plaintiff participated minimally in farm work, which the ALJ acknowledged as not constituting substantial gainful activity, she did not attend a three-day program at the Mayo Clinic due to farm responsibilities. Plaintiff did, however, attend a half-day Fibromyalgia Treatment Program. The record indicates that engaging in activities, particularly for her family, often led to severe pain, exemplified by her experiences at the Mall of America and during physical therapy sessions where she could not continue due to pain. Despite occasional attempts to engage in family activities, this does not negate her disability status, as established in Tilley v. Astrue. Dr. Colby’s opinion, which aligns with the evidence, suggested that Plaintiff's condition would restrict her to sedentary part-time work. This assessment was corroborated by Dr. Frazin, the medical expert, and the vocational expert indicated that due to her limitations, Plaintiff could not sustain regular employment. The Court determined that Dr. Colby’s opinion warranted controlling weight, and the evidence justified a reversal and immediate award of benefits rather than further proceedings. The Court recommends granting Plaintiff's Motion for Summary Judgment and denying the Defendant’s Motion to Remand, with a judgment entered accordingly. A claimant must demonstrate the existence of a disability by the expiration date of their insurance coverage.
Vesicoureteral reflux refers to urine flowing from the bladder back into a ureter. Pyelonephritis is identified as inflammation of the kidney and renal pelvis due to bacterial infection. Spondylosis generally denotes degenerative spinal changes from osteoarthritis. Fibromyalgia is a chronic disorder of uncertain cause, characterized by widespread pain and stiffness, particularly affecting the neck, shoulders, back, and hips, with specific diagnostic criteria established by the American College of Rheumatology. Associated symptoms include fatigue, weakness, paresthesia, sleep difficulties, and headaches. Osteopathic Manipulative Treatment (OMT) is a technique performed by osteopathic doctors to enhance joint mobility and relieve pain. Oral candidiasis, known as thrush, presents as white plaques in the mouth and primarily affects the sick, weak, or immunocompromised individuals.
In Minnesota, the Disability Determination Services handles the initial stages of Social Security disability claims under the Commissioner of Social Security's oversight. The Global Assessment of Functioning (GAF) Scale assesses an individual's overall functioning level, with scores of 61-70 indicating mild symptoms and some functional difficulties, while scores of 71-80 suggest transient symptoms with minimal impairment. A vocational analysis identified Kenneth Ogren as the correct vocational expert, contrary to a misidentification during the hearing. The Administrative Law Judge (ALJ) rejected Dr. Colby’s 2008 Residual Functional Capacity opinion as it pertained to a time postdating the Plaintiff’s last insurance coverage. The ALJ also discounted the medical expert's testimony based on Dr. Colby’s opinion.
The Court finds that the Administrative Law Judge (ALJ) incorrectly discounted Dr. Colby’s 2008 opinion regarding the Plaintiff’s condition prior to December 2006, as there is no evidence suggesting that Dr. Colby failed to follow the RFC instructions. Relevant case law indicates that medical evidence post-dating the claimant's last insured date is pertinent only if it relates back to the claimant’s prior limitations. The Defendant's request for remand to re-evaluate Dr. Colby’s 2008 RFC opinion is deemed unpersuasive due to the strong evidence supporting the Plaintiff's disability status under 42 U.S.C. 423(d)(1)(A). The Court emphasizes that when the record overwhelmingly supports a disability finding, remanding would only delay benefit receipt. Additionally, Dr. Colby's 2005 letter lacks clarity on the extent of the Plaintiff's lifting capabilities. The ALJ's decision relied on a vocational expert’s response to an initial hypothetical that did not account for Dr. Colby’s limitations. The second hypothetical, which included these limitations, is deemed more relevant to the case.
