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Flemon v. Berryhill

United States District Court, E.D. Arkansas, Jonesboro Division

July 24, 2017

NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration DEFENDANT


         Plaintiff Barry Wayne Flemon, Jr., (“Flemon”) began this case by filing a complaint pursuant to 42 U.S.C. 405(g). In the pleading, he challenged the final decision of the Acting Commissioner of the Social Security Administration (“Commissioner”), a decision based upon the findings of an Administrative Law Judge (“ALJ”).

         Flemon maintains that the ALJ's findings are not supported by substantial evidence on the record as a whole.[1] Flemon specifically maintains that his residual functional capacity was erroneously assessed and offers two reasons why. First, the ALJ erred when he rejected the opinions of Dr. Stephen Woodruff, M.D., (“Woodruff”). Second, the ALJ's credibility analysis was inadequate because he did not engage in a detailed credibility analysis, gave no consideration to Flemon's work history, and ignored medical evidence that was consistent with Flemon's subjective complaints.

         The ALJ is required to assess the claimant's residual functional capacity, which is a determination of “the most a person can do despite that person's limitations.” See Brown v. Barnhart, 390 F.3d 535, 538-39 (8th Cir. 2004). The assessment is made using all of the relevant evidence in the record, but the assessment must be supported by some medical evidence. See Wildman v. Astrue, 596 F.3d 959 (8th Cir. 2010). In making the assessment, the ALJ is required to consider the medical opinions in the record. See Wagner v. Astrue, 499 F.3d 842 (8th Cir. 2007). A treating physician's medical opinions are given controlling weight if they are well-supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with the other substantial evidence. See Choate v. Barnhart, 457 F.3d 865 (8th Cir. 2006). The ALJ may discount a treating physician's medical opinions if other medical assessments are supported by better or more thorough medical evidence or where the treating physician renders inconsistent opinions that undermine the credibility of his opinions. See Id.

         The ALJ must evaluate the claimant's subject iv e complaints as a part of assessing his residual functional capacity. See Pearsall v. Massanari, 274 F.3d 1211 (8th Cir. 2001). The ALJ does so by considering all of the evidence, including the following:

... [the] objective medical evidence, the claimant's work history, and evidence relating to the factors set forth in Polaski v. Heckler, 739 F.3d 1320, 1322 (8th Cir. 1984): (i) the claimant's daily activities; (ii) the duration, frequency, and intensity of the claimant's pain; (iii) precipitating and aggravating factors; (iv) the dosage, effectiveness, and side effects of medication; and (v) the claimant's functional restrictions. ... An ALJ need not expressly cite the Polaski factors when ... [he] conducts an analysis pursuant to 20 C.F.R. 416.929 because the regulation “largely mirror[s] the Polaski factors.” Schultz v. Astrue, 479 F.3d 979, 983 (8th Cir. 2007); see 20 C.F.R. 416.929(c)(3)(i)-(iv), (vii) (2011) ...

See Vance v. Berryhill, 2017 WL 2743089, 4 (8th Cir. June 27, 2017).

         Flemon alleged in his application for disability insurance benefits that he became disabled beginning on September 12, 2014. He alleged that he became disabled as a result of impairments that include cervical disc disease, bilateral shoulder impingement syndrome, rotator cuff tear, osteoarthritis, rupture of the left bicep tendons, and right shoulder rotator cuff tendonitis. He ably summarized the evidence in the record, and the Commissioner did not place the summary in dispute. The Court accepts the summary as a fair summation of the evidence. The summary will not be reproduced, save to note matters germane to the issues raised in the parties' briefs.

         On September 5, 2013, or one year before the alleged onset date, an MRI of Flemon's cervical spine was performed. The results revealed the following: “multilevel degenerative changes which are worst on the left at the C4-C5 level where there is severe left foraminal narrowing.” See Transcript at 555.

         On October 9, 2013, Flemon was seen for complaints of neck pain by Dr. Robert Abraham, M.D., (“Abraham”). See Transcript at 552-554. Flemon reported that the pain began in his neck, radiated to his left shoulder, went down the posterior aspect of his left arm, and stopped at his elbow. He reported taking six Percocets a day and muscle relaxers to help ease the pain. His history was recorded, and it reflects the following: “... Flemon is a 45 year old electrician that returns to the clinic today after undergoing an MRI of his cervical spine. He has previously had an ACDF [i.e., anterior cervical discectomy and fusion] of C3-4, C5-6 in [December] ¶ 2011. He also had a TDR [i.e., total disc replacement] in C6-7 done by Dr. Tonymon.” See Transcript at 552. Abraham's diagnoses included cervical radiculopathy. Abraham continued Flemon on medication, counseled against strenuous activity, and referred him for pain management.

         Flemon thereafter saw Dr. Mark Wendell, M.D., (“Wendell”) and Melanie New, APRN, (“New”) for pain management on what appears to have been twenty-five occasions. See Transcript at 370-377 (01/13/2014), 378-379 (01/28/2014), 361-365 (02/10/2014), 517-521 (03/06/2014), 366-367 (03/11/2014), 509-513 (03/24/2014), 347-351 (05/05/2014), 352-353 (05/27/2014), 454-458 (06/25/2014), 421-422 (08/18/2014), 405-406 (08/26/2014), 428-429 (09/10/2014), 591-593 (12/01/2014), 626-627 (12/09/2014), 655 (12/20/2014), 705-706 (05/13/2015), 634-635 (06/02/2015), 711-712 (06/08/2015), 723-725 (08/06/2015), 636-637 (08/10/2015), 727-728 (08/24/2015), 728-731 (09/09/2015), 757-758 (09/28/2015), 747-750 (10/12/2015), 753-754 (12/29/2015). At the initial presentation, Wendell's diagnoses included cervical disc degeneration. Wendell continued Flemon on medication and began treating him with steroid injections. Flemon initially reported excellent results from the injections but later reported that they were proving to be less beneficial. An MRI of Flemon's cervical spine was performed at New's request on September 3, 2015. See Transcript at 639-640. The results revealed, in part, the following: “[d]egenerative disc changes at ¶ 4-5 caused mild central canal stenosis. Left uncovertebral osteophyte causes moderate left neuroforaminal narrowing.”

         Flemon returned to Abraham on July 30, 2014. See Transcript at 443-446. Flemon reported tremendous benefit from the steroid injections, but the pain in his neck and left arm returned once the effect of the medication subsided. Flemon reported that his pain was exacerbated by activity. He reported that he was considering applying for disability. Abraham again diagnosed, inter alia, cervical radiculopathy, continued Flemon on medication, and continued to recommend pain management.

         Flemon saw Woodruff between 2013 and 2015 and appears to have seen him on approximately eight occasions. See Transcript at 382-385 (11/12/2013), 522-527 (03/05/2014), 447-451 (07/22/2014), 443-446 (07/30/2014), 593-594 (12/03/2014), 655-657 (01/02/2015), 694-696 (04/01/2015), 742-747 (10/01/2015). At the initial presentation, Flemon complained of a constant burning in his neck and radiculopathy in his left arm. Woodruff diagnosed cervical radiculopathy and a “post-surgical state, ” see Transcript at 385, and prescribed a fentanyl transdermal patch. At subsequent presentations, Flemon continued to complain of pain in his neck and left arm. He also complained of pain in his right shoulder, chronic bursitis in his hips, and complications associated with low iron. Woodruff continued to diagnose cervical radiculopathy and additionally diagnosed conditions that include cervical disc degeneration, a bulging cervical disc, osteoarthritis, trochanteric bursitis, and anemia. In the July 22, 2014, progress note, Woodruff opined that he did not believe Flemon was “capable of working any ... occupation with the cervical spine condition.” See Transcript at 447. In the December 3, 2014, progress note, Woodruff opined that Flemon was “[u]nable to work.” See Transcript at 594.

         On December 3, 2014, Woodruff prepared a medical source statement-physical on behalf of Flemon. See Transcript at 564-565. In the statement, Woodruff represented that Flemon could lift and/or carry less than ten pounds frequently and occasionally but could stand and/or walk and sit for a total of eight hours. Woodruff represented that Flemon had a limited ability to push and pull because of cervical radiculopathy with marked tricep weakness and could only occasionally perform such tasks as reaching, handling, and fingering.

         On August 21, 2015, Woodruff authored a “To Whom It May Concern” letter on behalf of Flemon. In the ...

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