Baker v. Barnhart

• Citation: 457 F.3d 882
• Decision Date: 13 June 2006
• Docket Number: No. 05-3106.,05-3106.
• Parties: Roger L. BAKER, Appellee, v. Jo Anne B. BARNHART, Commissioner of Social Security, Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

457 F.3d 882

Roger L. BAKER, Appellee, v. Jo Anne B. BARNHART, Commissioner of Social Security, Appellant.

No. 05-3106.

United States Court of Appeals, Eighth Circuit.

Submitted: March 14, 2006.

Filed: June 13, 2006.

Mark W. Pennak, argued, U.S. Department Of Justice, Civil Division, Washington, DC (Leonard Schaitman, U.S. Department Of Justice, Civil Division, Jennifer L. Fisher, Office of General with the SSA, on the brief), for appellant.

Jay E. Denne, argued, Sioux City, IA, for appellee.

Before COLLOTON, HEANEY, and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

The Commissioner of Social Security ("Commissioner") appeals the district court's order reversing the Commissioner's denial of Supplemental Security Income ("SSI") disability benefits to Roger L. Baker. The Commissioner argues that the district court erred in relying on materials not contained in the administrative record, that substantial evidence supports the Commissioner's decision to deny benefits and that even if substantial evidence does not support the Commissioner's decision, the proper remedy is a remand to the Social Security Administration ("SSA") rather than an order directing the award of benefits. We reverse the district court and remand with instructions to reinstate the Commissioner's denial of benefits.

I. BACKGROUND

In February 2000, Baker slipped and fell on ice and injured his back. Baker's family physician, Dr. Kissel, ordered an MRI after the muscle relaxants and pain killers he prescribed failed to improve Baker's condition. The MRI showed degenerative disc disease, bulging disc material and "neuroforamen stenosis." Dr. Kissel referred Baker to a neurologist, Dr. Case. Dr. Case confirmed Baker's back problems and also diagnosed Baker with moderate carpal tunnel syndrome and tennis elbow in his left arm. Dr. Case referred Baker to a surgeon, Dr. Durward, for further treatment of his lumbar disc disease. Dr. Durward scheduled Baker for back surgery.

In September 2000, Baker informed his employer, Enterprise Rent-a-Car, that he could no longer work because of the pain in his back and legs. Dr. Durward and his associate, Dr. Noel, performed surgery on Baker in November 2000 to fuse two lumbar vertebrae. Regarding a follow-up examination on January 8, 2001, Dr. Durward stated in a memorandum, "As far as his back goes he is doing extremely well. Lost pretty well all of his preoperative pain syndrome.... Moves his back freely. His straight leg raising is unrestricted.... The films that were done last month demonstrate perfect fusion occurring [in the fused lumbar vertebrae]." After conducting an examination on January 29, 2001, Dr. Noel noted that Baker was "[d]oing well" and "[d]enies any complaints." On April 23, 2001, Dr. Noel noted that he "encouraged [Baker] to get back to work and he is excited by that." Dr. Noel recommended a functional capacity evaluation ("FCE") "to determine [Baker's] final restrictions." Meanwhile, Baker applied for SSI disability benefits on February 28, 2001, but this application was denied on May 10, 2001 because his condition was "not expected to prevent [him] from working for a continuous period of 12 months from the date of [his] surgery."

On June 15, 2001, Baker was examined by Dr. Durward. This time, Dr. Durward noted that Baker was "still complaining of significant pain" that was "[w]orse with physical activity, even light housework in a bent forward position exacerbates it." Dr. Durward characterized Baker's case as a "[p]uzzling situation. Seems to have an inordinate amount of pain despite what appears to be a satisfactory x-ray result." Dr. Durward referred Baker to Dr. Keppen, a pain specialist, and recommended delaying the FCE until Baker's pain situation was addressed. Baker returned to Dr. Durward on August 6, 2001, and Dr. Durward noted that Baker's reported pain had not improved and that physical activity such as raking exacerbated the pain. However, Dr. Durward also noted that Baker could walk and perform straight leg raising without restriction. Dr. Durward released Baker for light-to-medium work, restricting him to a maximum occasional lifting limit of 25 pounds, a frequent lifting limit of 15 pounds and to limited bending at the waist. Dr. Durward also stated that an FCE would enable him to implement more accurate work restrictions.

Baker next visited Dr. Durward on November 11, 2001, complaining of continuing pain in his back and left forearm. Baker stated that he had raked leaves the previous day and that doing so exacerbated his back pain. Dr. Durward noted:

I believe that the fusion is solid and [Baker] is not any longer getting any pain from it. I have released him previously for work with lifting limits but he has not gone back to work. He has applied for Social Security. I think I would give the man the benefit of the doubt here and try one more method of treating his residual symptoms. What I would recommend is referral to Dr. Mike Donohue for consideration of an isokinetic rehabilitation program.

Baker returned to Dr. Durward on January 4, 2002 with the same complaints of pain. This time Dr. Durward noted:

Very difficult situation. We had referred him for isokinetic rehab but that was not undertaken. I think there are 2 things that we need to pursue here. Firstly, it would be worthwhile getting a second opinion to see whether there was something we have missed or something else that may be done to help his residual pain.... The second thing is that I think it would be of value to have a[FCE] done after he has had the second opinion to really try to identify exactly what his limitations are. This man is only 49. He tells that Social Security was turned down because his wife does work. I think he is motivated to do some kind of work if we can find something that does not exacerbate his residual pain symptoms.

Baker received the recommended second opinion from Dr. Lynn, but Dr. Lynn could not identify any cause for Baker's pain and did not recommend any new treatment. Baker returned to Dr. Durward on May 29, 2002, after Dr. Durward had a chance to review the findings of Dr. Lynn as well as those of Dr. Keppen, the pain specialist. Baker reported that his pain had not decreased and that prolonged sitting, such as during an extended drive in an automobile, exacerbated his pain. Baker also reported that he was taking no pain medication other than "intermittent Tylenol." Dr. Durward noted:

This man does describe a significant disabling pain syndrome. At this point in time I do not feel confident that there is any structural cause for it that I could help.... As far as the pain goes, I am going to give him samples of a non steroidal Bextra or Mobic to see if that gives him some relief. My recommendations are that he can only work on a light duty occupation. I would recommend a maximum lifting limit of 25 lbs., frequent lifting limit 10 lbs. Avoid bending at the waist. However because this is a complicated situation and he has significant pain I would like to get [an FCE] to try and determine more accurately what his limitations are.

Baker participated in an FCE with licensed physical therapist Terry F. Nelson on July 23, 2002. The FCE results showed evidence that Baker was exaggerating his symptoms and giving less than full effort during testing. Because the district court found serious fault with these FCE results, we discuss the FCE methodology in detail.

The FCE includes multiple evaluations designed to produce an objective measure of the patient's effort and cooperation with the goal of the test. The Pain Replication Test ("PRT") is designed to "determine whether or not an organic pain syndrome is present and how much it is limiting normal function." The detailed FCE report describes the nature of the PRT as follows:

The rationale behind the PRT is that a static effort up to a barely perceptible increase in pain is reproducible within a small margin of error, a 15% Coefficient of Variation (CV).... [If] a barely perceptible increase in pain is experienced, then that force is not enough to produce an injury or an aggravation to the injury, but that level of force is reproducible. However, if the patient is exaggerating their [sic] symptoms and are not exerting their best effort up to a barely perceptible increase in their pain, then it will be difficult for them to produce static exertions with good consistency.

....

[The patients then lift] as hard as they are able to do safely. They must stay within their perceived safety zone, while attempting to determine their maximum tolerable pain level of force. . . .

....

The person with an organic pain syndrome in their Low Back and Upper Body will be able to produce two distinctly different levels of force exertion, but the symptom exaggerator will not be able to produce two distinct levels of force and they will occasionally produce results that are impossible.

Nelson concluded in the detailed FCE report that "Mr. Baker demonstrated a non organic pain response during which he was unable to consistently replicate two levels of force based on his pain perception. The result is usually consistent with voluntary submaximal effort on this test."

In addition to the PRT, the FCE included a Blankenship Reliability Profile. The detailed FCE report states, "The Blankenship Reliability Profile includes two objective components, Non Organic Signs and Validity. Patients scoring invalid on both components are felt to be attempting to control the test results to demonstrate a greater level of disability than what is actually present, the motivation of which is not known." The Non Organic Signs measure is based on comparisons of the patient's movement patterns with the patient's own description of his pain, and also on "distraction" observations of those movements:

The Distraction category is defined as any improvement in the Movement Dysfunction when the patient is not aware that they [sic] are being observed,...