Papesh v. Colvin
| Decision Date | 27 May 2015 |
| Docket Number | No. 14–2230.,14–2230. |
| Citation | 786 F.3d 1126 |
| Parties | Kathleen J. PAPESH, Plaintiff–Appellant v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant–Appellee. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Edward Olson, argued (Anton G. Ficek, on the brief), Minneapolis, MN, for Plaintiff–Appellant.
Christopher Lewis Potter, argued (Lucy Albright Bezdek, Special Assistant U.S. Attorney, on the brief), Boston, MA, for Defendant–Appellee.
Before BYE, BEAM, and BENTON, Circuit Judges.
Kathleen J. Papesh appeals the denial of her application for disability benefits and supplemental security income. Having jurisdiction under 28 U.S.C. § 1291, this court reverses and remands.
Dr. Richard E. Cash treated Papesh beginning April 3, 2009. She lived with her husband and adult daughter. She had a GED and worked as a bakery helper and cake decorator (previously as a hostess and server). She reported long-term, low-back pain, which radiated to her hips and legs. She said the pain “is worse with working” because the bakery has concrete floors. Dr. Cash observed “tenderness throughout the lumbar spine to palpation, as well as pain with some spasm in the low back.” He ordered a MRI.
Papesh turned 50 in late April. She saw Dr. Cash on May 14. She said “the leg achiness and radiating pain on both sides is getting worse and worse, to the point where she is having a hard time working beyond 8 hours when she is asked to in the bakery.” She reported she “gets her best relief when she lays on her back with a pillow under her knees and then laying on an ice pack.” The straight-leg raise test “in the seated position reproduces her back pain and some radiation into the buttock and thigh but nothing below the knee at all.” He observed “a slight antalgic gait, but [Papesh] maneuvers on and off of the exam table without any difficulty at all.” The MRI, he noted, “shows multiple level changes with some disc desiccation, some chronic-appearing changes, mild disc bulging that possibly minimally impinge some nerves or nerve roots, but no severe indentations.” He assessed, “Chronic low back pain with multiple level changes; radiation down the legs, does not appear to be true radiculopathy
to me, but could be coming from the back.” He referred her to an interventional pain clinic and to Dr. Jeffrey S. Gerdes, a neurosurgeon.
On May 29, Papesh called Dr. Cash. She reported increasing back pain, higher demands at work during a busy season, and her supervisor's concern about an accident or further injury. Dr. Cash took her off work for three weeks “to get over busy time of year.”
Dr. Gerdes evaluated Papesh four days later. He noted, “She is on high-dose narcotics for [her] condition.” He noted the MRI “shows mild spondolytic [sic] changes with mild narrowing at L4–5, otherwise no evidence of impingement.” Dr. Gerdes did “not see surgical intervention as an option for her.”
Papesh visited Dr. Cash on June 24. After three weeks off work, Papesh reported
On September 17, Dr. Cash noted, “She has been off work because of the pain and also to help care for her mother who has severe dementia
. Even if she was not caring for her mom, her back pain and generalized pain are precluding her from work.” Dr. Cash observed “quite exquisite tenderness over the lower spine and paralumbar musculature to palpation.” He assessed Papesh for depression and anxiety. One month later, she visited Dr. Cash “because of worsened depression and anxiety” after her mom's death.
Papesh applied for disability on December 11 (and for supplemental security income on February 2, 2010). She alleged she was disabled, beginning June 1, 2009, due to degenerative disc disease
, fibromyalgia, depression, anxiety, and other impairments.
Dr. Cash completed a Lumbar Spine Residual Functional Capacity (RFC) Questionnaire on January 6, 2010. Under Diagnoses, he included chronic low-back pain and degenerative disc disease
. He wrote, “Pain is up to 10/10 at times worsened by lifting, twisting, standing on concrete or other hard surfaces or prolonged sitting.” Dr. Cash placed an “X” by abnormal gait and muscle spasm. He opined that Papesh can walk a half-block without rest; continuously sit for 10 minutes and continuously stand for five minutes; sit and stand/walk for less than two hours total in an eight-hour working day; and, occasionally lift and carry less than 10 pounds and never lift or carry 10 or more pounds. He circled “Yes” for “Does your patient have significant limitations in doing repetitive reaching, handling or fingering?”
After Dr. Cash left the medical group, Papesh's physician became Dr. Steven M. Danielson. On January 13, 2010, he noted:
She has chronic low back pain, fibromyalgia
, and additionally has depression with anxiety features and some situational stressors. Her use of narcotics has been stable and consistent. She overall is satisfied with symptom control.
Papesh completed a function report on February 6. She said she iced her back throughout the day, did household chores for 10–15 minutes at a time (without bending, lifting, or reaching), and sometimes needed help tying her shoes.
Papesh saw Dr. Danielson again on February 17. He noted, Under assessments, he listed chronic low-back pain and fibromyalgia
.
Dr. Dan Larson, a state-agency physician, completed a physical RFC assessment in checklist format on March 19. He checked that Papesh could occasionally lift 20 pounds, frequently lift 10 pounds, stand and/or walk six hours total in an eight-hour workday, and sit six hours total in an eight-hour workday. He checked that she could occasionally stoop and crouch and frequently balance, kneel, and crawl. He did not check any limitations on her reaching, handling, and fingering. When instructed to “Cite the specific facts upon which your conclusions are based,” Dr. Larson summarized Dr. Gerdes's letter and Dr. Danielson's February 17 treatment notes.
Papesh completed a second function report on June 3. She said her household activities were now limited to one or two minutes at a time. She said she rarely went out of the house. She wrote, Papesh's daughter completed a third-party function report corroborating Papesh's description of her daily functioning.
Papesh saw Dr. Danielson on July 14. He noted, On November 3, he noted, On January 18, 2011, he noted that Papesh had a “normal gait” and was “able to stand without difficulty.” On March 4, he noted:
On March 10, Dr. Roger P. Handrich, a psychiatrist, diagnosed major depression
and anxiety. Later that month, Dr. Mark C. Bordewick, a psychologist, diagnosed major depression.
In a June 24 letter, Dr. Danielson opined:
Papesh has impairments which severely limit her ability to function in a competitive workplace environment. She has had longstanding low-back pain with symptoms radiating into both legs. This is felt to be nonsurgical. She does require frequent change of positions. The symptoms are relieved with lying down. With utilization of pain medications and timed rest she feels her symptoms are adequately controlled. Due to her limitations in time that she can be standing or walking, and need to be off her feet for symptom relief, she would have difficulty functioning in a typical workplace environment. Even with this, she will have some episodic flares of her pain and would be unlikely to maintain a full-time work schedule. Her pain may flare somewhat unpredictably necessitating unscheduled breaks.
At a December 15 hearing, Papesh testified, as did Dr. Joseph Horozaniecki, a neutral medical expert, and William Rutenbeck, a neutral vocational expert. The record included the reports summarized above.
Papesh testified about her pain, saying she “never [has] a day without pain,” despite the “strong pain medication.” She also described her daily functioning. Asked “how far could you walk before you would have to stop,” Papesh replied, “Sometimes around the block, sometimes only to the end of the block.” Asked if she helps with any chores, Papesh said her husband and daughter “may bring a basket of laundry for me to fold.” She testified her husband and daughter “[m]ostly” do the cooking, and “they've been taking on a lot more of the household responsibilities” in “the past 15 months.” She said she can stand for “five or 10 minutes” but “[t]hen it hurts and I have to lay down on ice.” She testified her daughter “was taking care of my elderly mother.”
Dr. Horozaniecki testified that Papesh's physical impairments included chronic low-back pain and fibromyalgia
. He said the back pain was “due to lumbar degenerative disc disease, which is multi-level and facet arthrosis ” and cited three sources in the medical record, including the MRI. For the fibromyalgia, Dr. Horozaniecki cited two sources, including a note from Dr. Cash, but acknowledged he “did not find any ... positive physical examination reports to corroborate this diagnosis.” Asked “what kinds of...
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