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Foley v. Berryhill

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

November 27, 2018

NANCY A. BERRYHILL, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security DEFENDANT




         The following Recommended Disposition (“Recommendation”) has been sent to United States District Judge Brian S. Miller. You may file written objections to all or part of this Recommendation. If you do so, those objections must: (1) specifically explain the factual and/or legal basis for your objection; and (2) be received by the Clerk of this Court within fourteen (14) days of this Recommendation. By not objecting, you may waive the right to appeal questions of fact.


         Hercel Foley applied for social security disability benefits with an amended alleged onset date of April 17, 2015. (R. at 200). After a hearing, the administrative law judge (ALJ) denied his application. (R. at 174). The Appeals Council denied his request for review. (R. at 1). The ALJ's decision now stands as the Commissioner's final decision, and Foley has requested judicial review.

         For the reasons stated below, the magistrate judge recommends reversing and remanding the Commissioner's decision.

         I. The Commissioner's Decision

         The ALJ found that Foley had the severe impairments of multilevel spondylosis at C5-C6 and C6-C7 with some canal stenosis, right eye blindness, history of brain aneurysm repair in May 2013, transient ischemic attack, anxiety; fatigue, gastroesophageal reflux disease, depression, and bipolar disorder. (R. at 162). The ALJ then found that Foley's impairments left him with the residual functional capacity (RFC) to perform light work except that he could perform occasional climbing, stooping, kneeling, crouching, and crawling; never balance due to blindness in one eye and neck issues; stand/walk for six to eight hours, one to two hours without interruption; reach overhead for one third of the day or less; never work at unrestricted heights or operate moving machinery such as a car, bus, taxi cab, or forklift; perform simple, unskilled, or rote work; understand, remember, and follow concrete instructions; and have superficial contact with supervision, coworkers, and the public, defined as meeting and greeting, making change, and giving simple instructions and directions. (R. at 165). The RFC precluded Foley's past relevant work. (R. at 172). However, a vocational expert (VE) testified that a person with Foley's RFC could perform jobs such as blending tank tender helper, sandwich board carrier, or clerical router. (R. at 173). The ALJ therefore held that Foley was not disabled. (R. at 174).

         II. Discussion

         The Court is to affirm the ALJ's decision if it is not based on legal error and is supported by “substantial evidence in the record as a whole, ” which is more than a scintilla but less than a preponderance. Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997). The Court considers evidence supporting and evidence detracting from the Commissioner's decision, but it will not reverse simply because substantial evidence could support a different outcome. Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000).

         Foley argues that the ALJ failed to properly consider the opinion of his treating physician, Anandaraj Subramanium, M.D., provided insufficient reason for discrediting the opinion, and failed to seek necessary clarification from Dr. Subramanium. The undersigned agrees.

         An ALJ has a duty to ensure that the record contains evidence from a treating or examining physician addressing the particular impairments at issue. Strongson v. Barnhart, 361 F.3d 1066, 1071-72 (8th Cir. 2004). The opinion of a treating physician is entitled to controlling weight if it is supported by “medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the record.” Hamilton v. Astrue, 518 F.3d 607, 610 (8th Cir. 2008) (quoting Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000)). Whatever weight the ALJ gives to the treating physician's opinion, he must provide good reason for giving the opinion that weight. Id. It is not permissible for the ALJ to “play doctor, ” substituting his own medical judgment for that of a physician. Pate-Fires v. Astrue, 564 F.3d 935, 946-47 (8th Cir. 2009).

         The ALJ stated in his decision that he gave the treating physician's opinion little weight because the “limitations are not supported by the evidence of record, ” Foley received conservative treatment for his back impairments, was off Zoloft, his aneurysm was stable, and “he had no restrictions in range of motion.” (R. at 171). At the hearing, the ALJ stated that Dr. Subramanium did not “take this procedure seriously, ” as the ALJ did not understand the reasoning for the limitations that he found. (R. at 224-28). Concerningly, the exhibits to which the ALJ cites do not directly support his stated reasons for discrediting Dr. Subramanium's opinions. The ALJ seemingly drew some inferences from the record, which is not permissible.

         No other treating physician has opined what physical limitations Foley has in his ability to work. The ALJ focused on a lack of lower back symptoms, whereas Dr. Subramanium considered all of Foley's impairments. It is not clear whether Dr. Subramanium opined severe limitations in sitting due to Foley's pain in his lower back, in his neck, or perhaps due to circulatory issues relating to his aneurysm or blood pressure. Foley observes that Dr. Subramanium is often called upon ...

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