Davis v. Social Security Administration Commissioner

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

JAMES WILLIAM DAVIS PLAINTIFF

V. CASE NO. 5:22-CV-5201

COMMISSIONER,

Social Security Administration DEFENDANT

OPINION AND ORDER

Before the Court is the Report and Recommendation (“R&R”) (Doc. 22) of the

Honorable Christy Comstock, United States Magistrate Judge for the Western District of

Arkansas, regarding Plaintiff James William Davis’s request for judicial review of the

decision to deny his claim for supplemental security income benefits under the provisions

of Title XVI of the Social Security Act (“SSA”). The Magistrate Judge recommends

affirming the Administrative Law Judge’s (“ALJ”) finding that Mr. Davis is capable of

performing sedentary work with restrictions and is not entitled to benefits. Mr. Davis filed

an Objection to the R&R (Doc. 23), arguing the ALJ should have fully and fairly developed

the record before making his final disability determination. The Court has reviewed the

record de novo and now rules on the Objection below.

Mr. Davis’s SSA claim arises primarily from injuries he sustained in a grievous dirt

biking accident on January 26, 2020. The most relevant injuries to his claim were a C3

vertebral fracture, C5 vertebral fracture, and right wrist fracture, which he underwent

cervical spine and wrist surgery to repair.1 Mr. Davis had previously injured his left ankle

1 Mr. Davis broke a total of eleven bones in the January 2020 accident. In addition to the

injuries described above, he also fractured his rib, pelvic ring, sacrum, and tibia.

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and left wrist in separate incidents, and these conditions also contributed to his disability

claim. Mr. Davis alleges that, cumulatively, his injuries and subsequent surgeries left him

with “neck problems, left ankle problems, and wrist problems,” (Doc. 22, p. 1), which have

prevented him from working since November 5, 2019. At that time, he was 39 years old

and had been employed as a maintenance mechanic.

Mr. Davis filed applications for disability insurance benefits and supplemental

security income on February 5, 2020. An administrative hearing before the ALJ was held

on May 4, 2021. At the close of the Hearing, the ALJ decided to hold the record open for

thirty days, until June 4, 2021, to allow Mr. Davis time to submit additional medical

records. Material here, Mr. Davis had an appointment scheduled for May 7, 2021 with his

neurosurgeon’s physician’s assistant at NWA Neuroscience Institute. On June 4, 2021,

Mr. Davis’s counsel submitted the medical record from that appointment.

On September 17, 2021, the ALJ issued its decision, finding that Mr. Davis was

“not disabled” within the meaning of the SSA. Although the ALJ acknowledged that Mr.

Davis had an impairment or combination of impairments that were severe, he found that:

[T]he claimant has the residual functional capacity [(“RFC”)] to perform

sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except

the claimant could never climb ladders, ropes, or scaffolds. The claimant

could occasionally climb ramps or stairs, balance, stoop, kneel, crouch,

and crawl.

(Doc. 13, p. 19). Mr. Davis requested a review of the ALJ’s decision by the Appeals

Council, which was denied. He then filed this action before the Magistrate Judge. After

reviewing the record in its entirety, the Magistrate Judge’s R&R recommends affirming

the ALJ’s finding that Mr. Davis is capable of performing sedentary work with restrictions

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and is not entitled to benefits. Mr. Davis objects here.

The Court reviews this case de novo to “ensure that there was no legal error and

that the findings of fact are supported by substantial evidence on the record as a whole.”

Brown v. Colvin, 825 F.3d 936, 939 (8th Cir. 2016); see 42 U.S.C. § 405(g). Substantial

evidence is a less onerous burden than preponderance of the evidence: it is satisfied

when a reasonable mind would accept the evidence as “adequate to support [the ALJ’s]

conclusion.” Austin v. Kijakazi, 52 F.4th 723, 728 (8th Cir. 2022). The Court “must

consider evidence in the record that fairly detracts from, as well as supports” the ALJ’s

decision in its substantial evidence analysis. Id. Ultimately, if the Court determines that

the ALJ’s decision is supported by substantial evidence on the record as a whole, then it

must affirm. Myers v. Colvin, 721 F.3d 521, 524 (8th Cir. 2013) (citing Davidson v. Astrue,

578 F.3d 838, 841 (8th Cir. 2009)). In other words, Court may not reverse simply because

substantial evidence exists in the record that could have supported a contrary outcome,

or because the Court could have decided the case differently. Haley v. Massanari, 258

F.3d 742, 747 (8th Cir. 2001). Remand is warranted, however, where “the ALJ’s factual

findings, considered in light of the record as a whole, are insufficient to permit [the] [c]ourt

to conclude that substantial evidence supports the Commissioner’s decision.” Scott ex

rel. Scott v. Astrue, 529 F.3d 818, 822 (8th Cir. 2008).

In the instant Objection, Mr. Davis argues that his condition had substantially

changed in early 2021 because of a “big fall,” which led to “new neurological signs

clinically indicating significant upper extremity impact” and further impaired him from

sedentary work. (Doc. 23, p. 6). Mr. Davis points the Court to the medical record that was

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prepared on May 7, 2024, by Kelsey Harper at NWA Neuroscience Institute, physician’s

assistant to Dr. Brent Peterson, Mr. Davis’s neurosurgeon:

This patient was seen today in follow-up evaluation after having

undergone C5 corpectomy with fusion from C4–C6 on January 27, 2020

with Dr. Peterson. He did very well post operatively and completed PT.

Three months ago, he developed increased issues with neck pain after

a big fall. Then developed bilateral arm pain and paresthesia through

lateral arm and into thumb. He notes dropping objects and grip related

weakness. . . . No recent images or treatment other than XR this morning.

(Doc. 13, p. 669 (cleaned up)). Ms. Harper assessed these symptoms as cervical

radiculopathy2 and ordered an evaluative MRI as part of Mr. Davis’s treatment, due later

that month. See id. at 671 (cleaned up) (“MRI Spine Cervical w/o Contrast; . . . Requested

for: 07 May, 2021; . . . Due: 17 May, 2021; . . . For: Cervical radiculopathy”).

Mr. Davis maintains that these new symptoms materially altered his ability to work

and should have been considered in his RFC decision. See, e.g., Doc. 23, p. 7 (“The

record was not developed regarding specifically what the significance of the neurological

symptoms and orthopedic symptoms translated to in vocational terms,” i.e., his ability to

perform sedentary work.). He argues that because the new information presented at the

Hearing and in Ms. Harper’s medical record caused the ALJ to “disregard earlier RFC

opinions by reviewing DDS doctors, since they lacked access to the new evidence,” the

ALJ was “obligated to seek professional medical guidance” on how the new evidence of

cervical radiculopathy affected his ability to work before determining his RFC. Id. He

2 “Cervical radiculopathy occurs when a nerve root in the spine is compressed or

impeded, leading to pain that can spread beyond the neck and into the arm, chest,

shoulders, and upper back.” Warren Magnus et al., Cervical Radiculopathy, Nat’l Libr.

Med. (Jan. 31, 2024), https://www.ncbi.nlm.nih.gov/books/NBK441828/

[https://perma.cc/D75D-FW4V].

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concludes that the ALJ’s failure to do so amounts to reversible error, and that this

“speculation and error” was not addressed in the R&R. Id.

The ALJ has an independent duty to fully and fairly develop the record “until the

evidence is sufficiently clear to make a fair determination as to whether the claimant is

disabled or not,” even where the Plaintiff is represented by counsel. Landess v.

Weinberger, 490 F.2d 1187, 1189 (8th Cir. 1974) (quoting Sellars v. Sec'y, Dep't of

Health, Ed. & Welfare, 458 F.2d 984, 986 (8th Cir. 1972)). Pursuant to that duty, the ALJ’s

RFC determination must be “based on all of the relevant evidence, including the medical

records, observations of treating physicians and others, and an individual’s own

description of [his] limitations.” Myers, 721 F.3d at 527 (quoting McKinney v. Apfel, 228

F.3d 860, 863 (8th Cir. 2000)). An ALJ “is not limited to considering medical evidence

exclusively,” Harvey v. Colvin, 839 F.3d 714, 717 (8th Cir. 2016) (citation omitted), nor is

he “required to discuss every piece of evidence submitted,” Hensley v. Colvin, 829 F.3d

926, 932 (8th Cir. 2016) (citation omitted). But it is well established that a “claimant’s RFC

is a medical question” that “must be supported by some medical evidence of the

claimant’s ability to function in the workplace.” Id. (quoting Cox v. Astrue, 495 F.3d 614,

619 (8th Cir. 2007)).

If a crucial medical issue is undeveloped, the ALJ is required “to seek additional

clarifying statements from a treating physician.” Stormo v. Barnhart, 377 F.3d 801, 806

(8th Cir. 2004). The ALJ is not required to order a consultative evaluation of every alleged

impairment. See Matthews v. Bowen, 879 F.2d 422, 424 (8th Cir. 1989). But the ALJ does

have “the authority to do so if the existing medical sources do not contain sufficient

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evidence to make a determination,” id., and “if the medical records presented to him do

not give sufficient medical evidence to determine whether the claimant is disabled,” the

ALJ is “required to order [additional] medical examinations and tests.” Barrett v. Shalala,

38 F.3d 1019, 1023 (8th Cir. 1994) (citing Conley v. Bowen, 781 F.2d 143, 146 (8th

Cir.1986)). “Thus, the proper inquiry for this Court is not whether a consultative

examination should have been ordered; rather, it is whether the record contained

sufficient evidence for the ALJ to make an informed decision.” (Doc. 22, p. 5 (citing

Bowen, 879 F.2d at 424).

Here, whether the record was fully and fairly developed with respect to Mr. Davis’s

big fall is a close question. Mr. Davis’s cervical radiculopathy was not discussed explicitly

at his Hearing May 2021, although the big fall occurred in early 2021, several months

prior. Neck pain—a symptom of cervical radiculopathy—was discussed at the Hearing in

the context of Mr. Davis’s current treatment at NWA Neuroscience Institute from Dr.

Peterson and Ms. Harper. Specifically, Mr. Davis testified that he had an upcoming

appointment with Ms. Harper to address a painful “popping” sensation in the area of his

neck that had been treated during surgery on his cervical spine. See Doc. 13, pp. 39–41.

However, the record is ambiguous as to whether the popping condition was caused by a

previous complication from his surgery or the big fall. The only other record of neck pain

from the period between Mr. Davis’s big fall and his hearing is a physical therapy record

from February 12, 2021, which notes:

Pt here in November for his neck pain. He thought he was doing better,

but now is getting worse again. He is having a lot of pain in his neck. Pain

level is currently at 6/10 with discomfort.

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Id. at 573. That record includes a diagnosis for cervicalgia (i.e., neck pain), with an onset

date of February 1, 2021. But it does not include any mention of a fall as its cause. The

Court cannot find that these general discussions, standing alone, amount to sufficient

evidence for the ALJ to make an informed decision about the effect of Mr. Davis’s big fall

and subsequent cervical radiculopathy on his ability to perform sedentary work.

The ALJ’s decision, however, does discuss “radicular pain” explicitly in its RFC

determination. Specifically, the ALJ states that:

By February of 2021, the claimant’s neck pain had returned with

associated stiffness. In addition, he had radicular pain into his bilateral

arms, with associated paresthesia down the arm into the thumb. The

claimant’s pain increased with lifting, personal care activities, and driving.

The claimant also endorsed dizziness with range of motion exercises. He

also described a popping and burning sensation in his neck with certain

movements, such as leaning forward.

Id. at 21 (citations to the record omitted). The ALJ also specifically cited radicular pain

and paresthesia as reasons that the medical opinion of Disability Determination Services

(“DDS”) consultant James W. Takach, M.D.—who concluded that Mr. Davis could

“perform light exertional work, but could only occasionally climb, balance, stoop, kneel,

crouch, and crawl”—was “not fully persuasive.” Id. The ALJ determined that Mr. Davis

had the “residual functional capacity to perform sedentary work . . . except the claimant

could never climb ladders, ropes or scaffolds.” rather than adopt Dr. Takach’s

recommendation that Mr. Davis could perform “light external work,” in part, because Mr.

Davis had “developed radicular pain into his bilateral arms, with associated paresthesia

down the arm into the thumb” based on Ms. Harper’s medical record. Id. at 24. Mr. Davis

argues that this interpretation was a bridge too far and that the ALJ “played doctor” by

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determining his RFC “without any opinion evidence addressing Plaintiff’s work abilities

after the change in condition.” (Doc. 23, pp. 5, 7).

Although the ALJ is not required to order a consultative evaluation of every alleged

impairment, Bowen, 879 F.2d at 424, here, the ALJ was presented with a new medical

record from NWA Neuroscience Institute that suggests a crucial issue, cervical

radiculopathy, was undeveloped. Stormo, 377 F.3d at 806. There is sufficient—indeed,

extensive—evidence on the record regarding the impact of Mr. Davis’s cervical spine

surgery and subsequent complications on his ability to work, including reports from

medical visits and consultative evidence from two DDS doctors. But the existing medical

records do not contain sufficient evidence to make an RFC determination with respect

Ms. Harper’s new diagnosis of cervical radiculopathy and its impact on Mr. Davis’s ability

to perform sedentary work. Bowen, 879 F.2d at 424; see also Cox, 495 F.3d at 619

(“Because a claimant's RFC is a medical question, an ALJ's assessment of it must be

supported by some medical evidence of the claimant's ability to function in the

workplace.”). It is certainly possible that the symptoms of cervical radiculopathy, “bilateral

arm pain and paresthesia through lateral arm and into thumb,” (Doc. 13, p. 669), impact

Mr. Davis’s functional ability. But the Court is unsure from the record, and that is precisely

the point: it contains no medical evidence that shows how cervical radiculopathy affects

Mr. Davis in the workplace. The ALJ thus erred by drawing his own inferences about the

effect of the new condition on Mr. Davis’s RFC. See Combs v. Berryhill, 878 F.3d 642,

646 (8th Cir. 2017) (“The ALJ ‘may not simply draw his own inferences about plaintiff's

functional ability from medical reports.’” (quoting Strongson v. Barnhart, 361 F.3d 1066,

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1070 (8th Cir. 2004))).

Mr. Davis cites this Court’s decision in Sisto v. Comm’r, Soc. Sec. Admin., 2023

WL 6213441 (W.D. Ark. Sept. 25, 2023), as dispositive of his Objection. In Sisto, “[t]he

Court agree [d] with the Magistrate Judge that the ALJ must seek a consultative medical

opinion regarding a new MRI,” id. at 1, the details of which were as follows:

[T]he ALJ received at or around the time of the hearing some new

imaging data that “reveal[ed] lumbar disc disease and degenerative

changes of the hips as well as ... evidence of emergency care treatment

for abnormal lung sounds.” He observed that [two] consulting doctors . .

. “did not have the opportunity to consider the evidence secured at the

hearing level,” and, for that reason alone, the ALJ deemed the doctors’

RFC opinions “unpersuasive” and disregarded them.

[But] [r]ather than order a consultative medical review of the recently

submitted evidence, it appears the ALJ took it upon himself to interpret

the new evidence and determine that that an RFC of “light work” with

certain conditions was sufficient to address Ms. Sisto's new or worsening

physical ailments.

Id. at 1–2 (citations omitted). The Court admonished that “[a]n ALJ—though well versed

in disability law and familiar with reviewing medical records—is not a medical doctor,” id.

at 2, and held that “[t]o the extent he relies on a particular piece of medical evidence in

making an RFC finding, he can report what the evidence plainly states, but he lacks the

discretion to go a step further and interpret the evidence’s implications on the claimant's

ability to perform discrete job tasks,” id. (citing Byes, 687 F.3d at 916).

The Court finds that Sisto further counsels in favor of sustaining Mr. Davis’s

Objection. Although the underlying conditions that imaging revealed in Sisto are distinct

from the radiculopathy at issue here, the Court’s logic remains the same: additional

medical evidence is required to determine the impact of Mr. Davis’s new condition on his

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ability to work. Here, as in Sisto, the ALJ did not fully and fairly develop a record on the

newly submitted medical evidence, e.g., by ordering a consultative evaluation from Dr.

Peterson or Ms. Harper before determining Mr. Davis’s functional capacity. See Dozier v.

Heckler, 754 F.2d 274, 276 (8th Cir. 1985) (“It is reversible error for an ALJ not to order

a consultative examination when such an evaluation is necessary for him to make an

informed decision.” (citation omitted)). Instead, he took it upon himself to interpret the new

evidence in his RFC determination.

The ALJ must support his RFC determination with substantial evidence. Brown,

825 F.3d at 939. In this case, substantial evidence includes a fully and fairly developed

medical record on the impact of Mr. Davis’s cervical radiculopathy on his ability to work.

Failure to fully and fairly develop the record is a reversible error, and the Court finds such

error here. See Combs, 878 F.3d at 646 (as previously quoted); Byes, 687 F.3d at 916

(similar).

IT IS THEREFORE ORDERED that Mr. Davis’s Objection (Doc. 23) is

SUSTAINED to the extent described above. The Magistrate Judge’s R&R (Doc. 22) is

otherwise ADOPTED IN FULL, and the decision of the ALJ is REVERSED AND

REMANDED for further consideration pursuant to sentence four of 42 U.S.C. § 405(g).

Judgment will enter concurrently with this Order.

IT IS SO ORDERED on this 31st day of March, 2024.

UNITED STATES DISTRICT JUDGE

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