United States District Court, E.D. Arkansas, Batesville Division
HERCEL K. FOLEY PLAINTIFF
NANCY A. BERRYHILL, Deputy Commissioner for Operations, performing the duties and functions not reserved to the Commissioner of Social Security DEFENDANT
T. KEARNEY, UNITED STATES MAGISTRATE JUDGE.
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.
FOR RECOMMENDED DISPOSITION
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.
reasons stated below, the magistrate judge recommends
reversing and remanding the Commissioner's decision.
The Commissioner's Decision
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).
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
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.
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).
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.
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