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Papesh v. Colvin

United States Court of Appeals, Eighth Circuit

May 27, 2015

Kathleen J. Papesh, Plaintiff - Appellant
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant - Appellee

Submitted: February 10, 2015.

Page 1127

Appeal from United States District Court for the District of Minnesota - Minneapolis.

For Kathleen J. Papesh, Plaintiff - Appellant: Edward Olson, Minneapolis, MN.

For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant - Appellee: Lucy Albright Bezdek, Social Security Administration, Office of the General Counsel, Boston, MA; Ann M. Bildtsen, Assistant U.S. Attorney, U.S. Attorney's Office, District of Minnesota, Minneapolis, MN; Thomas W. Crawley, Social Security Administration, Office of General Counsel Region V, Chicago, IL; Christopher Lewis Potter, Special Assistant U.S. Attorney, Social Security Administration, Office of the General Counsel, Boston, MA.

Before BYE, BEAM, and BENTON, Circuit Judges.

OPINION

Page 1128

BENTON, Circuit Judge.

Kathleen J. Papesh appeals the denial of her application for disability benefits and supplemental security income. Having jurisdiction under 28 U.S.C. § 1291, this court reverses and remands.

I.

A.

Dr. Richard E. Cash treated Papesh beginning April 3, 2009. She lived with her husband and adult daughter. She had a GED and worked as a bakery helper and cake decorator (previously as a hostess and server). She reported long-term, low-back pain, which radiated to her hips and legs. She said the pain " is worse with working" because the bakery has concrete floors. Dr. Cash observed " tenderness throughout the lumbar spine to palpation, as well as pain with some spasm in the low back." He ordered a MRI.

Papesh turned 50 in late April. She saw Dr. Cash on May 14. She said " the leg achiness and radiating pain on both sides is getting worse and worse, to the point where she is having a hard time working beyond 8 hours when she is asked to in the bakery." She reported she " gets her best relief when she lays on her back with a pillow under her knees and then laying on an ice pack." The straight-leg raise test " in the seated position reproduces her back pain and some radiation into the buttock and thigh but nothing below the knee at all." He observed " a slight antalgic gait, but [Papesh] maneuvers on and off of the exam table without any difficulty at all." The MRI, he noted, " shows multiple level changes with some disc desiccation, some chronic-appearing changes, mild disc bulging that possibly minimally impinge some nerves or nerve roots, but no severe indentations." He assessed, " Chronic low back pain with multiple level changes; radiation down the legs, does not appear to be true radiculopathy to me, but could be coming from the back." He referred her to an interventional pain clinic and to Dr. Jeffrey S. Gerdes, a neurosurgeon.

On May 29, Papesh called Dr. Cash. She reported increasing back pain, higher demands at work during a busy season, and her supervisor's concern about an accident or further injury. Dr. Cash took her off work for three weeks " to get over busy time of year."

Dr. Gerdes evaluated Papesh four days later. He noted, " She is on high-dose narcotics for [her] condition." He noted the MRI " shows mild spondolytic [sic] changes with mild narrowing at L4-5, otherwise no evidence of impingement." Dr. Gerdes did " not see surgical intervention as an option for her."

Papesh visited Dr. Cash on June 24. After three weeks off work, Papesh reported " this is the best she has felt in years. She states that the horrible leg pain is now gone. . . . She still gets pain and states that she breaks out the ice pack about four times per day, but now she can sit down, lie down with the ice pack as needed and things are extremely manageable."

On September 17, Dr. Cash noted, " She has been off work because of the pain and also to help care for her mother who has severe dementia. Even if she was not caring for her mom, her back pain and generalized pain are precluding her from work." Dr. Cash observed " quite exquisite tenderness over the lower spine and paralumbar musculature to palpation." He assessed Papesh for depression and anxiety. One month later, she visited Dr. Cash " because of worsened depression and anxiety" after her mom's death.

Papesh applied for disability on December 11 (and for supplemental security income

Page 1129

on February 2, 2010). She alleged she was disabled, beginning June 1, 2009, due to degenerative disc disease, fibromyalgia, depression, anxiety, and other impairments.

Dr. Cash completed a Lumbar Spine Residual Functional Capacity (RFC) Questionnaire on January 6, 2010. Under Diagnoses, he included chronic low-back pain and degenerative disc disease. He wrote, " Pain is up to 10/10 at times worsened by lifting, twisting, standing on concrete or other hard surfaces or prolonged sitting." Dr. Cash placed an " X" by abnormal gait and muscle spasm. He opined that Papesh can walk a half-block without rest; continuously sit for 10 minutes and continuously stand for five minutes; sit and stand/walk for less than two hours total in an eight-hour working day; and, occasionally lift and carry less than 10 pounds and never lift or carry 10 or more pounds. He circled " Yes" for " Does your patient have significant limitations in doing repetitive reaching, handling or fingering?"

After Dr. Cash left the medical group, Papesh's physician became Dr. Steven M. Danielson. On January 13, 2010, he noted:

She has chronic low back pain, fibromyalgia, and additionally has depression with anxiety features and some situational stressors. Her use of narcotics has been stable and consistent. She overall is satisfied with symptom control.

Papesh completed a function report on February 6. She said she iced her back throughout the day, did household chores for 10-15 minutes at a time (without bending, lifting, or reaching), and sometimes needed help tying her shoes.

Papesh saw Dr. Danielson again on February 17. He noted, " Overall she is satisfied with symptom control. . . . There remains some mild tenderness over the lower spine and paralumbar muscles." Under assessments, he ...


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