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Gordon v. Commissioner of Social Security

United States District Court, N.D. Iowa, Cedar Rapids Division

March 25, 2019



          Kelly K.E. Mahoney Chief United States Magistrate Judge.

         Plaintiff Jennifer Gordon seeks judicial review of a final decision of the Commissioner of Social Security (the Commissioner) denying her applications for supplemental security income (SSI) under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f, and for disability insurance (DI) benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-434. Gordon argues that the Commissioner erred in evaluating Gordon's subjective complaints, in weighing medical opinion evidence, and in determining appropriate limitations for Gordon's RFC. For the reasons that follow, I reverse the Commissioner's decision and remand for further proceedings.

         I. BACKGROUND[1]

         Gordon has suffered from daily headaches since 2009. AR 471, 584-86. She has been treated by her primary care physician, Mark Goedkin, MD, and she began receiving treatment from neurologist Winthrop Risk, MD, in May 2010, and continued to see him through at least September 2016. AR 471, 577, 584, 616-17. Gordon has been diagnosed with hemicrania continua[2] as well as migraines. AR 444-46, 616-17, 550, 695-96. She has also been seen by Laurence Krain, MD (in 2009), rheumatologist Shahin Bagheri, MD (in 2010 and 2013), neurologists Marc Hines, MD (in July and August 2014), and Harold Adams Jr., MD (in December 2014), and pain specialist Rahul Rastogi, MD (in February 2015). AR 417-19, 424-26 (Dr. Bagheri); 547-62 (Dr. Hines); 588-94 (Dr. Krain); 690-94 (Dr. Adams); 694-99 (Dr. Rastogi). In February 2010, Dr. Bagheri diagnosed Gordon with diffuse myofascial pain and fibromyalgia, and Dr. Risk noted tenderness during musculoskeletal examinations in 2012 and 2013. AR 426, 432, 442, 445. In July 2016, Gordon also began seeing David Ross, LISW, ACSW, (Therapist Ross) for depression. AR 613-15.

         Gordon's headaches vary in intensity and cause constant pain at the back and on the left side of her head. AR 298-99, 695. On a ten-point scale, Gordon rates her average, daily headache pain at four minimum and five to seven on average with flares up to nine or ten. AR 43, 298, 547, 695. Her headaches cause photophobia, phonophobia, and nausea, and they worsen with overstimulation (including to light and noise), activity, stress, and focusing on things. AR 40, 547, 690, 695. In addition to her daily headaches, Gordon more recently began suffering migraines, which cause pain throughout her entire head (rather than just at the back and left side) and worsen as the day goes on. AR 44, 550, 616-19, 695. They also cause increased nausea and a sense of feeling unwell, and they require Gordon to lie down, usually for the rest of the day. AR 44, 547, 619. Gordon indicated her fibromyalgia causes increased sensitivity to pain. AR 45.

         In February 2014, Gordon filed for SSI and DI benefits, alleging disability since March 1, 2012. AR 65-67. Gordon claimed disability based on hemicrania continua; vision issues; low blood pressure, fainting, and balance issues; light and sound sensitivity; nausea; anemia; and constant plugged ears. AR 67. Her applications were denied initially in May 2014 and upon reconsideration in October 2014. AR 65-66, 81-82, 97-100, 120-21, 141-42. In connection with the initial review, the Social Security Administration ordered a consultative examination, which was completed by Harlan Stientjes, PhD, on May 5, 2014. AR 71, 87, 507-11. The initial reviews also included RFC opinions from state agency consultants Melodee Woodward, MD, dated April 22, 2014 (AR 73-77, 89-93), and Rhonda Lovell, PhD, dated May 21, 2014 (AR 77-80, 93-96). The reconsideration reviews included RFC opinions from Marlene Ann Gernes, DO, dated October 22, 2014 (AR 109-10, 115, 130-31, 133-36), and Myrna Tashner, EdD, dated October 10, 2014 (AR 116-18, 137-39), which affirmed the initial review RFC opinions.

         Gordon requested further review, and she submitted RFC opinions from Dr. Risk and Therapist Ross, both dated August 30, 2016. AR 166, 577-83. The administrative law judge (ALJ) conducted an administrative hearing[3] on November 17, 2016, at which Gordon and a vocational expert (VE) testified. AR 13, 33-35. The ALJ issued a written decision on December 28, 2016, following the familiar five-step process outlined in the regulations[4] for determining whether Gordon is disabled. AR 13-25. The ALJ found Gordon suffers from severe impairments of migraine headaches, cervical degenerative disc disease, fibromyalgia, and depression, and that her other alleged impairments (anxiety, left-sided loss of sensation, vision problems, speech impairment, dizziness, and balance issues) are not medically determinable. AR 15-16. After finding Gordon's impairments do not meet or equal a listed impairment, the ALJ determined she has the RFC[5] to perform light work with postural limitations and the following additional limitations:

• limited to normal office noise levels;
• cannot be in an environment with bright lights;
• limited to simple, routine, repetitive work;
• limited to work involving no public contact; and
• limited to no specific production rate requirements.

         AR 17. The ALJ found Gordon was not able to perform past relevant work (as a janitor or janitor supervisor) because it required medium level of exertion. AR 24, 35-36, 394. The ALJ concluded that Gordon could perform other work as a router, routing clerk, or mail clerk, and that she was therefore not disabled. AR 24-25.

         The Appeals Council denied Gordon's request for further review on October 31, 2017 (AR 1), making the ALJ's opinion the final decision of the Commissioner. See 20 C.F.R. §§ 404.981, 416.1481. Gordon filed a timely complaint in this court (Docs. 1, 3). See 20 C.F.R. § 422.210(c). The parties briefed the issues (Docs. 15, 16, 17), and consented to the jurisdiction of a United States magistrate judge (Doc. 13).


         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 ...

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