Kasper v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
MINNIE L. KASPER 	PLAINTIFF
V. 	Civil No. 2:24-cv-02044-TLB-MEF
MARTIN O’MALLEY, Commissioner,
Social Security Administration 	DEFENDANT
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, Minnie Kasper, brings this action under 42 U.S.C. § 405(g), seeking judicial
review of a decision of the Commissioner of Social Security Administration (the “Commissioner”)
denying her claim for a period of disability and disability insurance benefits (“DIB”) under Title
II of the Social Security Act (hereinafter “the Act”), 42 U.S.C. § 423(d)(1)(A). 	In this judicial
review, the Court must determine whether there is substantial evidence in the administrative record
to support the Commissioner’s decision. See 42 U.S.C. § 405(g).
I. 	Procedural Background
Plaintiff filed her application for DIB on May 25, 20211 , alleging an onset date (“AOD”)
of August 29, 2020, due to fibromyalgia, migraines, poor balance, and ringing in the ears. (ECF
No. 8, pp. 24, 248-253, 282, 317-319, 320-322, 345-347, 351-353). 	The Commissioner denied
her applications initially and on reconsideration, and an administrative hearing was held before
Administrative Law Judge (“ALJ”) Harold Davis on February 22, 2023. 	(Id. at 46-68). 	The
Plaintiff was telephonically present for the hearing and represented by counsel.
1 Plaintiff filed a prior application for DIB on December 4, 2017. 	(ECF No. 8, p. 72). 	Judge
Elisabeth McGee entered a final, unfavorable decision on August 28, 2020. (Id. at 72-87).
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On her alleged onset date, Plaintiff was 49 years old and possessed a GED. (ECF No. 8,
pp. 35, 283, 488, 573). She had past relevant work (“PRW”) experience as a tractor-trailer truck
driver, commercial cleaner, and security guard. (Id. at 283-284, 291, 302-308).
In an unfavorable decision dated March 22, 2023, ALJ Davis concluded that the Plaintiff’s
degenerative disk disease (“DDD”), osteoarthritis (“OA”), fibromyalgia, and anxiety/depression
were severe but did not meet or medically equal the severity of an impairment listed in 20 C.F.R.
Part 404, Subpart P, Appendix 1 between August 29, 2020, her alleged onset date, and December
31, 2022, her date last insured. 	(ECF No.8, pp. 24-25). 	Despite her impairments, the ALJ
determined Plaintiff retained the residual functional capacity (“RFC”) to perform light work
involving only simple tasks, no detailed or complex instructions, and incidental contact with the
public. 	(Id. at 27). Based on the testimony of a vocational expert (“VE”), the ALJ determined
Plaintiff could perform work as a housekeeper/cleaner, price marker, and small product assembler.
(Id. at 36).
On February 9, 2024, the Appeals Council denied Plaintiff’s request for review (ECF No.
8, pp. 7-10), and she subsequently filed her Complaint (ECF No. 2) to initiate this action. Both
parties have filed appeal briefs (ECF Nos. 10, 12), and the matter is ripe for resolution. The case
has been referred to the undersigned for Report and Recommendation.
II. 	Applicable Law
This 	Court’s 	role 	is 	to 	determine 	whether 	substantial 	evidence 	supports 	the
Commissioner’s findings. 	Vossen v. Astrue, 612 F.3d 1011, 1015 (8th Cir. 2010). 	Substantial
evidence is less than a preponderance but enough that a reasonable mind would find it adequate to
support the Commissioner’s decision. Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019). We must
affirm the ALJ’s decision if the record contains substantial evidence to support it. Blackburn v.
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Colvin, 761 F.3d 853, 858 (8th Cir. 2014). If there is substantial evidence in the record to support
the Commissioner’s decision, the Court may not reverse it simply because substantial evidence
exists in the record that would have supported a contrary outcome, or because the Court would
have decided the case differently. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015). In other
words, if after reviewing the record it is possible to draw two inconsistent positions from the
evidence and one of those positions represents the findings of the ALJ, we must affirm the ALJ’s
decision. Id.
A claimant for Social Security disability benefits has the burden of proving her disability
by establishing a physical or mental disability that has lasted at least one year and that prevents
her from engaging in any substantial gainful activity. Pearsall v. Massanari, 274 F.3d 1211, 1217
(8th Cir. 2001); see also 42 U.S.C. § 423(d)(1)(A). 	The Act defines “physical or mental
impairment” as “an impairment that results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.” 	42 U.S.C. § 423(d)(3). 	A Plaintiff must show that her disability, not simply her
impairment, has lasted for at least twelve consecutive months.
The Commissioner’s regulations require him to apply a five-step sequential evaluation
process to each claim for disability benefits: (1) whether the claimant has engaged in substantial
gainful activity since filing her claim; (2) whether the claimant has a severe physical and/or mental
impairment or combination of impairments; (3) whether the impairment(s) meet or equal an
impairment in the listings; (4) whether the impairment(s) prevent the claimant from doing PRW;
and, (5) whether the claimant is able to perform other work in the national economy given her age,
education, and experience. 	See 20 C.F.R. § 404.1520(a)(4). 	The fact finder will only consider
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Plaintiff’s age, education, and work experience in the light of her RFC if the final stage of the
analysis is reached. 20 C.F.R. § 404.1520(a)(4)(v).
III. 	Discussion
Plaintiff raises four issues on appeal: (1) whether the ALJ fully and fairly developed the
record; (2) whether the ALJ erred at Step Two of the sequential analysis; (3) whether the ALJ’s
RFC determination is supported by substantial evidence; and (4) whether the VE’s testimony
conflicted with the Dictionary of Occupational Titles (“DOT”). Following a thorough review of
the record, the undersigned does not find substantial evidence to support the ALJ’s RFC
determination.
RFC is the most a person can do despite that person’s limitations. 20 C.F.R. § 404.1545.
“The ALJ determines a claimant’s RFC based on all relevant evidence in the record, including
medical records, observations of treating physicians and others, and the claimant’s own
descriptions of her limitations.” Jones v. Astrue, 619 F.3d 963, 971 (8th Cir. 2010); Davidson v.
Astrue, 578 F.3d 838, 844 (8th Cir. 2009). Limitations resulting from symptoms such as pain must
be factored into the assessment. 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). The United States
Court of Appeals for the Eighth Circuit has held that a “claimant’s residual functional capacity is
a medical question.” Miller v. Colvin, 784 F.3d 472, 479 (8th Cir. 2015) (citing Lauer v. Apfel,
245 F.3d 700, 704 (8th Cir. 2001). 	Therefore, an ALJ’s determination concerning a claimant’s
RFC must be supported by medical evidence that addresses the claimant’s ability to function in
the workplace. Perks v. Astrue, 687 F.3d 1086, 1092 (8th Cir. 2012).
While we are cognizant of the fact that Plaintiff’s date last insured was December 31, 2022,
the ALJ’s decision fails to take into consideration medical evidence dated after August 2022. (ECF
No. 8, p. 32). Evidence dated after a Plaintiff’s date last insured should be considered when it has
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bearing on the severity of their condition during the relevant period. Cox v. Barnhart, 471 F.3d
902, 907 (8th Cir. 2006) (finding that evidence dated outside the insured period can be used to
help “elucidate a medical condition during the time for which benefits might be rewarded.”).
Therefore, some of the post-dated evidence presented by the Plaintiff should have been evaluated
by the ALJ.
After concluding Plaintiff’s fibromyalgia, migraines, poor balance, and ringing in the ears
were severe impairments, the ALJ found her capable of performing light work with simple tasks,
no detailed or complex instructions, and only incidental contact with the public. In his opinion,
the ALJ insists that this restriction to light work was sufficient to “prevent exacerbation of joint
and muscular pain and also to acknowledge any ongoing subjective balance complaints.” (ECF
No. 8, p. 33). We disagree.
Plaintiff quit work in 2018 due to generalized body pain. (ECF No. 8, pp. 481-496, 500-
515; ECF No. 8-1, pp. 479-490). 	Longitudinal records show a history of arthralgia, chest pain,
dyspnea, fatigue, and fibromyalgia or somatoform disorder dating back to at least 2017. (ECF No.
8, pp. 337-344, 665-672, 706-710; ECF No. 8-1, pp. 179-195, 414-417, 427-428, 635-637, 645-
647, 650-652, 657-658, 662-664, 669-677, 713-736). A rheumatology evaluation with Dr. Lisa
Lowery in December 2018 documented severe pain in the hips and cervical, thoracic, and lumbar
spine, as well as moderate pain in the hands and feet. (ECF No. 8-1, pp. 420-423, 444-447, 679-
695). 	X-rays showed minimal retrolisthesis of the C5 on the C6 vertebra; mild disc space
narrowing at the C4-5 and C5-6 levels; and mild foraminal narrowing on the right at the C5-6 level
and on the left at the C3-4 and C5-6 levels. 	Dr. Lowery diagnosed chronic myalgia and
degenerative disk disease (“DDD”). Because her primary care physician (“PCP”) had diagnosed
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fibromyalgia, which was a possibility given her negative lab work-up and symptomology, Dr.
Lowery provided the Plaintiff with a pamphlet discussing this impairment.
An MRI of Plaintiff’s cervical spine conducted in March 2019 revealed a mild disk
protrusion at the C4-5 level and spinal stenosis at the C5-6 level. (ECF No. 8-1, pp. 418, 520).
And nerve conduction studies noted sensory neuropathy in all extremities with mild nonspecific
changes in the peroneal motor nerves bilaterally, which could signal early motor neuropathy
involving the lower extremities. (Id. at 172-173, 217-218, 315-318).
In August 2019, Plaintiff’s PCP, Dr. Robert Noonan, diagnosed her with myalgia/myositis
of unknown etiology, but probable for fibromyalgia and spinal stenosis after reviewing her MRI
and documenting tenderness in the cervical spine with a limited and painful ROM. (ECF No. 8-1,
pp. 402-404). He stated that her fibromyalgia symptoms were “very debilitating.”
The following month, neurologist, Dr. Timothy Booker, documented an unremarkable
metabolic assessment for neuropathy, including a sensorimotor neuropathy panel. 	(ECF No. 8,
pp. 442-447, 452-453, 711-718; ECF No. 8-1, pp. 141-146, 307-315). Accordingly, he diagnosed
generalized diffuse pain syndrome with subjective weakness consistent with a prior diagnosis of
fibromyalgia; sensory neuropathy in the upper and lower extremities of unknown etiology with
negative testing for underlying muscle disease; balance problems with no significant findings of
focal motor weakness; and cerebellar or extrapyramidal dysfunction. 	Dr. Booker advised the
Plaintiff to continue with pain management, and indicated she would be considered for
gait/balance therapy.
In January 2020, neurologist, Dr. Sukanthi Kovvuru, documented reduced sensation
distally in Plaintiff’s legs, suggestive of length dependent polyneuropathy of unclear etiology.
(ECF No. 8, pp. 595-608, 761-764; ECF No. 8-1, pp. 589-602). Because her previous work-up
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was negative, the doctor opted to evaluate Plaintiff for other treatable causes of neuropathy. To
begin, Dr. Kovvuru ordered a second nerve conduction study to evaluate the type and severity of
her neuropathy. 	However, testing revealed no electrodiagnostic evidence of a large fiber
peripheral neuropathy in her lower extremities, providing further evidence of a fibromyalgia-like
disorder. (ECF No. 8, pp. 585-593, 759-760; ECF No. 8-1, pp. 579-587).
On May 27, Dr. Sarah Woodruff prescribed Savella to treat Plaintiff’s fibromyalgia and
referred her back to rheumatology. (ECF No. 8, pp. 655-656, ECF No. 8-1, pp. 37-38). However,
Plaintiff’s insurance denied coverage for the Savella. (ECF No. 8, pp. 654-655, ECF No. 8-1, pp.
35-36). 	In 	September, 	the 	doctor 	noted 	Plaintiff 	had 	been 	switched 	to 	Amitriptyline.
Unfortunately, the Amitriptyline caused hypersomnia, dry mouth, and headaches.
The following month, rheumatologist, Dr. Seth Berney, evaluated Plaintiff’s complaints of
pain in her ankles, shoulders, and on the soles of her feet. (ECF No. 8, pp. 550-569, 675-702, 747-
750). After performing lab tests and reviewing her records, he concluded she was not suffering
from an autoimmune or inflammatory rheumatologic disease. Dr. Berney recommended a referral
to physical and occupational therapy for vigorous muscle strengthening and stretching exercises;
Naproxen and Acetaminophen for pain control; and consideration of an SSRI or SNRI such as
Duloxetine. He then deferred treatment to Plaintiff’s PCP, stating that Tramadol and Lyrica could
be added to control pain and counter medication side effects. 	This ultimately prompted Dr.
Woodruff to refer the Plaintiff to pain management for a diagnosis of chronic pain syndrome.
(ECF No. 8, pp. 652-653, ECF No. 8-1, pp. 32-34, 85-87).
Dr. Jennifer Gess conducted neuropsychological testing on the Plaintiff in July 2020. (ECF
No. 8, pp. 570-579, 720-756). 	After administering several objective tests, Dr. Gess concluded
Plaintiff’s symptoms likely stemmed from somatoform disorder.
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Plaintiff began pain management with Dr. Brian Malki on December 10, 2020. (ECF No.
8, pp. 638-642). Dr. Malki prescribed Lyrica and Nortriptyline and ordered MRIs of the spine and
brain as well as nerve conduction studies. 	He also opined that she might benefit from physical
therapy. When Plaintiff returned on January 5, 2021, reporting her pain as a 6 on a 10-point scale,
Dr. Malki advised her to continue her current medications and added Robaxin. (ECF No. 8, pp.
634-637). Due to increased shoulder pain in March, he administered a trigger point injection into
the right trapezius muscle. (ECF No. 8, pp. 629-634).
Plaintiff reported tingling in her left third and fourth fingers in June 2021. (ECF No. 8, pp.
649-650, ECF No. 8-1, pp. 28-31). Dr. Woodruff referred her to neurology for further evaluation.
Four months later, Dr. Woodruff’s Advance Practice Nurse, Jess Jordan, treated the Plaintiff for
knee pain and swelling after her knee popped. 	The nurse documented a limited ROM and
tenderness in the left medial aspect of the knee with mild laxity and a positive McMurray test.
(ECF No. 8-1, pp.20-24, 47). However, x-rays showed no abnormality. APN Jordan diagnosed a
sprain of the left medial collateral ligament of the knee and prescribed a hinged knee brace,
Naproxen, and Tramadol. She also ordered an MRI of the left knee, which ultimately showed mild
OA in the medial compartment with a displaced medial meniscus, mild mucoid degeneration, and
slight chondromalacia. (ECF No. 8, pp. 743, ECF No. 8-1, pp. 46).
On December 9, 2021, orthopedist, Dr. Rolando Cheng, examined the Plaintiff, noting pain
with flexion and extension of the left knee and a lot of crepitation. (ECF No. 8, pp. 737-739, ECF
No. 8-1, pp. 45, 81-82). 	After diagnosing a torn meniscus and degenerative arthritis of the left
knee, he scheduled an arthroscopy of her left knee.
Due to lower back pain radiating into her spine, Plaintiff presented in the emergency room
(“ER”) on January 1, 2022. (ECF No. 8-1, pp. 41-43, 69-72, 90-98). X-rays of her lumbar spine
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revealed minimal facet degenerative changes at the L5-S1 level. 	She received Norflex (muscle
relaxer) and Ketorolac (NSAID) injections and was prescribed Cyclobenzaprine (muscle relaxer).
Plaintiff underwent an arthroscopy of her left knee with an unsuccessful attempt at shaving
and ablating the lateral meniscus on January 5, 2022. (ECF No. 8, pp. 742; ECF No. 8-1, pp. 68).
Dr. Cheng ultimately diagnosed arthritis and recommended conservative treatment. (ECF No. 8,
pp. 740-741).
In February, neurologist, Dr. Syed Ali, evaluated her for worsening pain radiating from the
knuckles to the tips of her fingers on her left hand. (ECF No. 8-1, pp. 3-5). Dr. Ali prescribed a
carpal tunnel brace and noted that an orthopedic referral for injections might be necessary.
On March 24, she complained of left shoulder pain. (ECF No. 8-1, pp. 66, 109-111, 117).
An exam demonstrated tenderness in the left anterior subacromial area and mild crepitus with
extension and backward flexion, but x-rays showed no definite acute bony abnormality. However,
the acromioclavicular (“AC”) joint was not ideally visible on the images. 	Accordingly, APN
Jordan ordered an MRI of the upper extremities, which showed mild degenerative joint findings
of the AC joint with some signal in the superior labrum concerning for a superior labral tear. (ECF
No. 8-1, pp. 65, 116, 708).
During a follow-up with Dr. Cheng on January 10, 2023, the Plaintiff reported continued
left knee pain. (ECF No. 8-1, pp. 783-784). And, on February 24, she advised APN Jordan that
she had lost her balance, tripped, fell, and struck her head several days earlier. (ECF No. 8-1, p.
780). The following morning, she awoke with a headache, slurred speech, nausea, and difficulty
walking. Nurse Jordan diagnosed a closed head injury.
An MRI of her upper extremities conducted in March 2023 confirmed findings suspicious
for a superior labrum tear and degeneration in the AC joint. (ECF No. 8-1, p. 116).
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Thus, contrary to the ALJ’s RFC determination, the evidence supports a finding that
Plaintiff’s spinal, knee, and shoulder impairments, whether they be from fibromyalgia, chronic
pain syndrome, or somatoform disorder, would affect her ability to stand and walk as well as
perform other postural activities, to include kneeling, stooping, bending, crouching, crawling,
balancing, and reaching. Because the RFC determination fails to account for all these restrictions,
remand is necessary to allow the ALJ to reconsider the Plaintiff’s RFC. Further, given the absence
of a consultative physical exam dated during the relevant period, on remand, one is strongly
advised to assist the ALJ in determining Plaintiff’s precise limitations.
V. 	Conclusion
Based on the foregoing, it is recommended that the Commissioner’s decision be reversed,
and the case remanded back to the Commissioner for further consideration pursuant to sentence
four of 42 U.S.C. § 405(g).
The parties have fourteen (14) days from receipt of our report and recommendation
in which to file written objections pursuant to 28 U.S.C. § 636(b)(1). The failure to file timely
objections may result in waiver of the right to appeal questions of fact. We remind the parties
that objections must be both timely and specific to trigger de novo review by the district
court.
DATED this 21st day of October 2024.
/s/ Mark E. Ford
HON. MARK E. FORD
CHIEF UNITED STATES MAGISTRATE JUDGE
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