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Estorga v. Commissioner of Social Security

United States District Court, N.D. Iowa, Central Division

June 22, 2018

BEVERLY J. ESTORGA, Plaintiff,
v.
COMMISSIONER OF Social Security, [1] Defendant.

          REPORT AND RECOMMENDATION

          KELLY K.E. MAHONEY JUDGE

         Plaintiff Beverly J. Estorga seeks judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying his[2] application for supplemental security income (SSI) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f.[3] Estorga argues that the administrative law judge (ALJ) erred by failing to include the severe impairment of a somatoform or conversion disorder at step two, in evaluating his subjective complaints and medical opinions when determining residual functional capacity (RFC), and in forming a hypothetical for the vocational expert (VE). I recommend reversing the Commissioner's decision and remanding for further proceedings.

         I. BACKGROUND[4]

         Estorga filed an application for SSI benefits on July 30, 2012, alleging disability based on endometriosis, polycystic ovarian syndrome, chronic gastritis, fibromyalgia, psoriatic or autoimmune arthritis, “persistent scar tissue back and right foot, ” bipolar disorder, depression, and posttraumatic stress disorder (PTSD). AR 24, 117-18.[5]Estorga has not worked full-time since 2006, and he stopped working altogether in 2008, although he obtained a bachelor's degree in sociology in June 2010 from the University of California, Santa Cruz (he reported he planned to obtain a master's degree, but health problems prevented it). AR 62, 69, 410, 421, 750, 2363. Prior to October 2014, Estorga lived in California with his two children and partner, who financially supported Estorga and the children. AR 83, 2368, 2251. After Estorga split from his partner, he moved to Iowa with the children to live with his mother; he later moved out, and at the time of the hearing in October 2015, he was living alone with his children (ages 15 and 11) and being supported financially by his mother. See AR 71, 83, 2368, 2540, 2576, 2697, 2741.

         Estorga's SSI application was denied initially in January 2013 and on reconsideration in September 2013. AR 117-136, 159-180. At a hearing before an ALJ in May 2014, the ALJ noted that Estorga “had difficulty ambulating in here, ” which “made [him] think that maybe . . . there's something here, ” “despite th[e] lousy medical source statement” from Dr. Robert Weber, Estorga's primary care physician in California. AR 59. The ALJ noted, however, that he “need[ed] proof, ” so he ordered two consultative examinations: a neurological examination to evaluate Estorga's fibromyalgia, and an internal medicine examination to evaluate Estorga's pelvic pain and psoriatic arthritis. AR 59-60.

         Estorga met with Dr. Daniel Katzenberg on June 28, 2014, for the neurological consultative examination. Dr. Katzenberg's testing revealed limited mobility in Estorga's hips, “multiple trigger points” of the musculoskeletal system, and an antalgic gait and inability to hop or balance on one foot. AR 2205. Based on these findings, Dr. Katzenberg “confirm[ed] the diagnosis of fibromyalgia, ” which he opined (in combination with arthritis) was “the main source of [Estorga's] functional limitations.” AR 2206. Dr. Katzenberg's findings supported Estorga's use of a cane, which Estorga presented with at the examination. AR 2204-05. Dr. Katzenberg concluded that Estorga was limited in his ability to stand, walk, lift, carry, stoop, kneel, crouch, and crawl, but not in his ability to sit or use his hands. AR 2205-2210.

         On October 6, 2014, Dr. Paul Anderson conducted the internal medicine consultative examination. AR 2363-74. Although he recognized that Estorga suffered from psoriatic arthritis, he found no objective medical signs of it, and he concluded that it was “fairly well controlled on current medications.” AR 2367, 2371. Most of Dr. Anderson's objective examination was unremarkable, and he noted that Estorga did not give his best effort on the physical tests. AR 2367-68. Dr. Anderson concluded that Estorga's “major problems have to do with h[is] psychiatric issues[, ] which appear not to have been completely sorted out.” AR 2368. Nevertheless, Dr. Anderson completed a form evaluating Estorga's physical limitations (including his ability to sit, stand, walk, reach, handle, and finger), although he noted on the form that his testing was unreliable. AR 2370-71. Dr. Anderson did not find Estorga needed to use a cane or assistive device to walk. AR 2370.

         Estorga also submitted as evidence a medical opinion from Dr. Byron Carlson, his primary care physician in Iowa. AR 2667, 2751-56. Dr. Carlson found Estorga limited in his ability to sit, stand, and walk based on his “observation of [his] abilities.” He also limited Estorga's ability to use his hands, stoop, kneel, crouch, and crawl based on weakness and unsteadiness. AR 2752-53. He opined that Estorga needed a cane to walk farther than fifteen feet. AR 2752, 2756.

         A second administrative hearing before an ALJ was held by video on October 16, 2015, at which Estorga and a VE testified. AR 65-66. On March 22, 2016, the ALJ issued a written opinion following the familiar five-step process outlined in the regulations[6] to find Estorga was not disabled during the relevant time period of July 30, 2012, to the date of the opinion. AR 42. At step two, the ALJ found Estorga suffered from the severe impairments of “psoriatic/rheumatoid arthritis, fibromyalgia, depression, anxiety/[PTSD], and vision loss in the right eye.” AR 26. The ALJ addressed some other impairments, finding them nonsevere, but did not mention the possibility that Estorga suffered from a conversion or somatoform disorder. AR 26-27. To evaluate whether Estorga's impairments prevented him from performing his past work or other work (at steps four and five), the ALJ determined Estorga's RFC[7] and found he could perform sedentary work with additional limitations:

[He] could only occasionally climb ramps and stairs. [He] should never climb ladders, ropes, or scaffolds. There should be no requirement to balance. [He] could occasionally stoop, kneel, crouch, and crawl. [He] would require a cane for ambulation. [He] would have no vision with the right eye. [He] should have no exposure to hazards, such as dangerous machinery or unprotected heights. [He] would need to avoid even moderate exposure to extremes of cold. [He] could perform frequent handling and fingering, bilaterally. [He] would be limited to simple, routine tasks with short, simple instructions and only occasional workplace changes. [He] could have occasional interaction with the public, coworkers, and supervisors.

AR 28. When determining RFC, the ALJ considered the opinions of Drs. Katzenberg, Anderson, and Carlson, assigning them varying amounts of weight. AR 35-37. The ALJ also considered Estorga's subjective complaints, which he did not fully credit, as well as other evidence. AR 39-40. The ALJ found that Estorga could not perform his past relevant work but that he could work as an addresser, document preparer, or sorter. AR 41-42.

         The ALJ gave several reasons for the weight he assigned to Estorga's subjective complaints, including that although he “stated [he] has never used drugs or alcohol[, t]his appears inconsistent with prior medical records which indicate the claimant has been treated for alcoholic cardiomyopathy and was consuming two pints of whiskey per day in 2009.” AR 33; see also AR 27 (noting Estorga's “cardiac function largely normalized after giving up alcohol” and finding that cardiomyopathy was not a severe impairment at step two); AR 56 (at the first hearing, the ALJ asked the testifying medical expert whether Estorga's limitations are caused by alcohol, and he responded that his alcohol abuse “was a long [way] back” and that once Estorga stopped drinking, his “heart recovered completely”). In making this finding, the ALJ relied on medical records belonging to somebody else that had accidentally been submitted with Estorga's records. Estorga raised this issue to the Appeals Council, but the Appeals Council “found that this information does not provide a basis for changing the [ALJ's] decision” and declined to grant review. AR 1-3, 15-16. The Appeals Council “removed as an exhibit” the medical records that did not belong to Estorga. AR 787-91.

         The ALJ's decision is the final decision of the Commissioner. See 20 C.F.R. § 404.981. Estorga filed a timely complaint in this court, seeking judicial review of the Commissioner's decision (AR 1-3; Doc. 3). See 20 C.F.R. § 422.210(c). The parties briefed the issues (Docs. 13, 16, [8] 17), and the Honorable Linda R. Reade, United States District Judge for the Northern District of Iowa, referred this case to me for a Report and Recommendation.

         II. DISCUSSION

         A court must affirm the ALJ's decision if it “is supported by substantial evidence in the record as a whole.” Kirby v. Astrue, 500 F.3d 705, 707 (8th Cir. 2007); see also 42 U.S.C. § 405(g). “Substantial evidence is less than a preponderance, but enough that a reasonable mind might accept it as adequate to support a decision.” Kirby, 500 F.3d at 707. The court “do[es] not reweigh the evidence or review the factual record de novo.” Naber v. Shalala, 22 F.3d 186, 188 (8th Cir. 1994). If, after reviewing the evidence, “it is possible to draw two inconsistent positions from the evidence and one of those positions represents the [ALJ's] findings, [the court] must affirm the decision.” Robinson v. Sullivan, 956 F.2d 836, 838 (8th Cir. 1992).

         Estorga challenges the ALJ's failure to find he suffers from a conversion or somatoform disorder at step two; the ALJ's failure to fully credit his subjective complaints; the weight the ALJ assigned to the medical opinions of Drs. Katzenberg, Anderson, and Carlson when determining RFC; and the hypothetical posed to the VE. I address each of these arguments in turn.

         A. Step-Two Determination

         Estorga argues that the ALJ erred at step two because the ALJ did not address whether he suffered a conversion or somatoform impairment, severe or otherwise. A conversion or somatoform disorder “causes [a person] to believe that [the person's] physical ailments are more serious than the clinical data would suggest. . . . In other words, [a person suffering this disorder] experiences . . . physical problems as worse than they may in fact be, and is unable to control this response.” Easter v. Bowen, 867 F.2d 1128, 1129 (8th Cir. 1989). It is considered a mental impairment to which the “special technique” outlined in the regulations for evaluating the severity of mental impairments applies. See Sharpe v. Comm'r of Soc. Sec., No. 1:14-CV-184-TFM, 2015 WL 4255308, at *5 (W.D. Pa. July 14, 2015); Iverson v. Astrue, No. C12-391-MJP-BAT, 2012 WL 5330978, at *4 (W.D. Wash. Oct. 9, 2012), report and recommendation adopted, 2012 WL 5330976 (W.D. Wash. Oct. 29, 2012); Wamsley v. Astrue, 780 F.Supp.2d 1180, 1191 (D. Colo. 2011).

         During step two, whether evaluating a physical or mental impairment, the ALJ must first “determine whether [a claimant] ha[s] a medically determinable . . . impairment” that “result[s] from anatomical, physiological, or psychological abnormalities that can be shown by medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. § 416.921; see also 20 C.F.R. § 416.920a(b)(1). An impairment “must be established by objective medical evidence from an acceptable medical source.” 20 C.F.R. § 416.921. Here, there is very little evidence in the more than 2, 000 pages of treatment records that Estorga suffers from a conversion disorder.

         Estorga primarily relies on emergency room records from a four-day hospitalization from July 18 to 22, 2014. See AR 2215-2232. Estorga presented to the emergency room complaining of paralysis and weakness in both his legs, although he still had sensation. AR 2217. He stated that two days before, he had been suffering from back pain, weakness, and nausea and that while walking to the bathroom, his right leg suddenly gave out, and he collapsed. AR 2229. He was able to get up, but the next day, he lost strength in both his legs, and he also reported urinary incontinence. AR 2229-30. After observing him during physical therapy and running several tests (including a computed tomography (CT) scan and a magnetic resonance imaging (MRI)), which came back negative, a neurologist concluded that she “highly suspect[ed]” Estorga's leg weakness was the result of a “conversion reaction.” AR 2228. Through physical therapy, Estorga regained some strength and felt comfortable going home, and he was discharged with a diagnosis of “bilateral lower extremity weakness secondary to conversion disorder.” AR 2214. The only other mention of conversion disorder in the record appears in three treatment records from shortly after Estorga's hospitalization, in which Estorga's psychiatrist noted that he needed to “rule out” a conversion disorder. AR 2262, 2275, 2277. In the first of these treatment records, from July 31, 2014, the psychiatrist also noted that Estorga believed he could have spinal stenosis, not a conversion disorder, and that Estorga planned to consult with a different neurologist for a second opinion. AR 2262.

         Estorga also points to evidence in the record suggesting that his physical symptoms are exacerbated by stress and other mental symptoms. Notes from an in-home nursing visit on June 23, 2015, reflect that Estorga reported an increase in stress and pain (and an increase in suicidal thoughts) because his children were out of state visiting their father for the summer. AR 2464. In a psychological evaluation from June 26, 2015—when Estorga was voluntarily receiving inpatient treatment due to suicidal ideation—a psychologist noted that Estorga's test results on the Minnesota Multiphasic Personality Inventory 2 (MMPI-2) reflected that Estorga “might tend to experience increased complaints [of fatigue, weakness, and/or chronic pain] in response to stress or interpersonal difficulties, but it would also be important to consider medical causes for any physical complaints.” AR 2537. And in September 2015, during an initial consultation with a rheumatologist, Estorga reported that his pain is aggravated by movement and emotional stress. AR 2764. Estorga's reports are insufficient to establish a medically determinable impairment, as is a treatment note reflecting the possibility that his physical ailments are psychosomatic.

         Estorga also relies on Dr. Anderson's report from his consultative examination, which noted that Estorga's “major problems have to do with h[is] psychiatric issues” and that he “does not give h[is] best effort on the physical examination.” AR 2368. It does not seem that Dr. Anderson believed Estorga's physical problems were psychosomatic, but rather, that he believed Estorga's main impediment to employment resulted from his mental limitations, not physical limitations. Estorga points to evidence that his mental symptoms may worsen during periods of heightened pain (see AR 753-54, 1548, 1806), but this is irrelevant to whether his physical symptoms are exacerbated by his mental impairments. Finally, Estorga points to evidence in the treatment records that medications often cause him side effects. From this, he infers that “[w]hen Estorga was aware of a possible side effect of a given treatment, []he generally would end up suffering that side effect to such an extreme degree []he would end up in an emergency room or see other providers about that side effect.” Doc. 13 at 7. Estorga points to no evidence that any medical provider made this connection or found that Estorga's side effects were psychologically based.

         Estorga did not allege a conversion or somatoform disorder as an impairment in either his SSI application or at the hearing, which is “significant.” See Dunahoo v. Apfel, 241 F.3d 1033, 1039-40 (8th Cir. 2001); see also Gregg v. Barnhart, 354 F.3d 710, 713 (8th Cir. 2003) (“[A]n ALJ is not obliged ‘to investigate a claim not presented at the time of the application for benefits and not offered at the hearing as a basis for disability.'” (quoting Pena v. Chater, 76 F.3d 906, 909 (8th Cir. 1996))). The only evidence in the record to support a conversion disorder impairment are the treatment records from Estorga's July 2014 hospitalization. The record reflects only one diagnosis of conversion disorder (as the cause for paralysis in Estorga's legs), and later treatment notes reflect that conversion disorder still needed to be “rule[d] out” and that Estorga wished to seek a second opinion from a neurologist regarding his conversion diagnosis. Substantial evidence supports that Estorga does not suffer from a conversion or somatoform disorder, and the ALJ did not err by failing to address the existence of this impairment. See Brockman v. Sullivan, 987 F.2d 1344, 1348 (8th Cir. 1993) (holding that the ALJ did not err in failing to investigate or find that the claimant suffered from schizophrenia when the claimant did not allege this as an impairment in his application or at the hearing and “[t]he only medical evidence . . . to support this theory was a ten-year-old diagnosis” contained in a letter to the state Disability Determinations Center).

         The cases relied on by Estorga are distinguishable. In Pratt v. Sullivan, 956 F.2d 830, 835 (8th Cir. 1992) (per curiam), the ALJ applied the wrong standard at step two, conflating it with the step-three standard (the ALJ required the claimant's symptoms to meet the listing requirements of somatoform disorder to find it a medically determinable impairment). And in Easter, 867 F.2d at 1130, and Nowling v. Colvin, 813 F.3d 1110, 1118-20 (8th Cir. 2016), the ALJ recognized that the claimant suffered from a somatoform disorder at step two but did not adequately consider the effects of that condition during other steps of the disability determination. I recommend affirming the ALJ's step-two determination based on my finding that the ALJ did not err by failing to include a somatoform or conversion disorder as a medically determinable impairment.

         B. Subjective Complaints

         In connection with his step-two argument, Estorga contends:

In the ALJ's explanation for his [RFC] finding, the thrust of why he found Estorga was not credible was h[is] allegations were not consistent with the objective medical evidence . . . . [T]he ALJ read much into the perceived gap between the severity of Estorga's physical complaints and the objective medical evidence for h[is] physical impairments, and failed to consider whether that gap was reasonably explained by h[is] conversion disorder.

Doc. 13 at 8-9. In that same section, Estorga also argues that the ALJ denied Estorga benefits due to a failure to follow treatment without considering Estorga's reasons for failing to follow treatment, as required. Id. at 9-10. I construe these arguments as challenging the ALJ's reasoning for not fully crediting Estorga's subjective complaints based on the lack of objective medical evidence and a failure to follow treatment. Estorga also explicitly challenges the weight the ALJ assigned to his subjective complaints, ...


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