United States District Court, E.D. Arkansas, Northern Division
Loyd Waters (“Waters”) appeals the final decision
of the Commissioner of the Social Security Administration
(defendant “Berryhill”) to deny his claim for
Disability Insurance Benefits (“DIB”). Waters
contends the Administrative Law Judge (“ALJ”)
erred in the following ways: (1) giving little weight to the
opinion of Dr. Oberlander (“Oberlander”),
Waters' treating physician; (2) erroneously assessing his
residual functional capacity (“RFC”); and (3)
performing an inadequate credibility evaluation. The parties
ably summarized the medical records and the testimony given
at the administrative hearing conducted on October 5, 2016.
(Tr. 37-57). The Court has carefully reviewed the record to
determine whether there is substantial evidence to support
Berryhill's decision. 42 U.S.C. § 405(g).
Hearing: Waters, who was 48 years old at the time of the
hearing, stated he last worked in April 2015 as a “yard
jockey, ” which he described as moving 18- wheelers
around a parking lot. (Tr. 40). Waters testified he quit the
job because he could not use his hands and could not get in
and out of the trucks. According to Waters, his fingers lock
up “all the time.” (Tr. 41). Waters stated he has
arthritis in his hands, wrists, shoulders, and feet. He also
stated that he would need a hip replacement soon. Waters
testified that Oberlander diagnosed him with fibromyalgia
about three to four years before the hearing, and that the
effects of the fibromyalgia are “hard to explain”
but are constant “(“just all the time
hurting”). (Tr. 42). Waters stated he takes Gabapentin
for his fibromyalgia, and also takes Keppra, Allopurinol for
gout, Meloxicam for inflammation, and Hydrocodone for pain.
He was unsure if he experienced any side effects from the
medications, in part because the side effects may be similar
to the symptoms of fibromyalgia. Waters also testified to
being able to “feel sound, ” feeling as if
“bugs were crawling on me all the time, ” and
feeling his hair moving when the wind blows. (Tr. 45). He
also stated he had anxiety attacks, including one where he
blacked out while driving two months prior to the hearing. He
was taken to the hospital after the accident and tested and
“everything was fine.” (Tr. 51). The anxiety
attacks, according to Waters, have been occurring for seven
or eight years, and he has been to “doctor after
doctor” for the problem, without a remedy. The only
diagnosis from these doctors is “that my brain gets so
full, it shuts down like a breaker box and comes back
on.” (Tr. 48). Waters stated the anxiety attacks, or
spells, come on without warning. As for daily activities,
Waters noted that his sister drives him to and from
doctor's appointments, that he prepares his own
microwaveable meals, he watches movies during the day, and
does laundry once a month. He drives only when it is an
Ford (“Ford”), a vocational expert, testified
Waters could not perform any of his past relevant work, which
included the jobs of semi-truck driver and position screw
machine operator. The ALJ asked Ford to assume a worker of
Waters' age, education, and experience, who could perform
light work except that the worker could occasionally work
overhead due to neck issues, and could only occasionally
stoop, kneel, crouch, or crawl due to lower back pain. Ford
testified that such a worker could perform jobs, including
the jobs of ticket seller and fast food worker. The ALJ, in a
second hypothetical question posed to Ford, added the
restrictions that the worker would be off task up to 20% of
the workday and would miss three or more days of work in any
given month on an unscheduled basis. Ford stated there would
be no jobs available for such a worker. (Tr. 55-57).
ALJ's Decision: In his December 2016 opinion, the
ALJ determined the relevant time period under consideration
was from the alleged onset date of April 1, 2015, through
December 5, 2016, the date of the ALJ's opinion. The ALJ
found Waters had the following severe impairments:
degenerative disc disease, osteoarthritis, fibromyalgia, and
obesity. The ALJ addressed other impairments, finding Waters
has benign hypertension resulting in no symptoms which would
limit his ability to work. The ALJ found no evidence that
Waters had been diagnosed with arthritis in his hands.
Rather, the ALJ found the medical evidence demonstrated
normal grip strength in both hands, normal joint functioning,
and no inflammation or redness in the joints. The only
abnormality with Waters' hands was a finding that he has
“trigger finger” on one finger on the right hand.
The ALJ deemed this abnormality to be a non-severe medical
impairment which would result in no more that minimal work
limitations/restrictions. The ALJ found Waters received
treatment for plantar fasciitis in 2013, but not afterwards,
and determined this to be a non-severe medical impairment.
Finally, the ALJ found no diagnosis of anxiety disorder and
concluded this alleged impairment to be a non-medically
assessed Waters with the RFC to perform light work, except
that he could only occasionally perform overhead reaching,
stooping, kneeling, crouching, and/or crawling. Citing the
relevant factors for assessing credibility, the ALJ did not
accept Waters' allegations at face value. The ALJ
specifically addressed the opinion of Oberlander that Waters
was disabled. The ALJ also considered the reports submitted
by consultative examiners Dr. David Barnett
(“Barnett”), an orthopedic physician, and Dr.
Garry Stewart (“Stewart”). Relying upon
Ford's testimony, the ALJ found Waters could perform the
jobs of ticket seller and fast food worker. As a result, the
ALJ determined Waters was not disabled during the relevant
period. (Tr. 20-30).
in Assigning Oberlander's Opinion Little Weight:
medical records reflect Oberlander, a neurologist, treated
Waters five times during the relevant period for disability
purposes, and five times prior to the alleged onset date. The
treatment spanned the period from January 23, 2014, to August
1, 2016. (Tr. 217-239, 273-284). Oberlander opined on three
occasions that Waters could not work. Waters urges
the ALJ erred in assigning little weight to these opinions.
found Oberlander's opinion was “not supported by
the objective medical evidence, physical examinations, or the
conservative treatment received” by Waters. (Tr. 26).
The ALJ's treatment of Oberlander's opinions is
supported by substantial evidence.
objective medical evidence, both in Oberlander's
treatment notes and in reports written by consultative
examiners Barnett and Stewart, is at odds with the opinions
rendered by Oberlander. Oberlander's notes show that
Waters was treated for back and neck pain. Oberlander
consistently assessed Waters with “a history of neck
pain” which was worsening “per his report.”
(Tr. 219, 222, 225, 228, 231, 239, 275, 278, and 282).
Oberlander consistently notes an abnormal gait, but does not
diagnose hand problems or anxiety attacks. Oberlander's plan
of treatment was exclusively through medication, with the
exception of an April 2016 visit when he decided to refer
Waters “to pain management clinic for more aggressive
interventions/injections/medication.” (Tr. 278).
Oberlander saw Waters on April 20, 2015, about twenty days
after the alleged onset date, and noted the gait and pain
were worsening. Oberlander prescribed Neurontin, Naproxyn,
and Hydrocodone, and directed that Waters be seen again in a
few months. (Tr. 222). Specific functional limitations were
not noted by Oberlander.
months after Oberlander first opined Waters was disabled,
Waters was seen by Stewart and Barnett. Stewart, who examined
Waters in July 2015, found him to have normal range of motion
in his shoulders, elbows, wrists, hands, hips, knees, and
ankles. Similarly, Stewart found normal range of motion in
Waters' cervical and lumbar spine, and normal grip
strength in both hands. Stewart diagnosed Waters with tobacco
abuse and mild to moderate obesity, and found he had no
limitations in his ability to walk, stand, sit, lift, carry,
handle, finger, see, hear, and speak. (Tr. 240-250).
the orthopedic physician, examined Waters in September 2015.
His examination included a review of x-rays of the lumbar and
cervical spine. Barnett found Waters to have normal range of
motion in his cervical and lumbar spine, as well as in his
upper and lower extremities. (Tr. 261). In pertinent part,
He complains of generalized tenderness about the many areas
of his musculature, from his neck, shoulders, thoracic,
scapular, lumbar, knee, hips, and pelvic areas posteriorly.
There is, however, no noted swelling of any of these joints.
There is no noted instability or redness. I cannot localize
any point tenderness, and he walks with a normal gait. His
strength is good and symmetric. His reflexes are very easily
obtainable and are symmetric. Sensation is intact, and he has
no tension signs related to his straight leg raising test or
Essentially he complains of neck pain, postop back pain,
plantar fasciitis, and generalized discomfort, which is in
keeping with his diagnosis of fibromyalgia. His physical
findings are limited to his scar on his back, tenderness in
his foot, the well healed postoperative incision on his back,
and his left quadriceps being 1 cm smaller than his right, as
measured. Additionally, he does have a trigger finger. . .
His lumbar spine x-rays show very mild curvature which is
compensated with a reverse curve in his thoracic spine,
giving him minimal and what is felt to be relatively
insignificant scoliosis. He does have lumbarization of his S1
vertebral body with some minor degenerative changes here, but
once again this is felt to be of questionable significance
related to any pain syndrome. His thoracic x-rays were very
much normal, with a minimal degree of increased kyphosis.
AP and lateral of his cervical spine also show some minimal
mid cervical abnormality, felt to be degenerative in nature.
I have reviewed his previous report from 10-20-15 and feel
that the x-ray findings do not contribute greatly to his
findings overall, and I do not see any specific area on his