Cox v. Social Security Administration

Filing 21

MEMORANDUM AND ORDER reversing the Commissioner's decision and remanding this matter to the Commissioner for further proceedings pursuant to sentence four, within the meaning of 42 U.S.C. § 405(g) and Melkonyan v. Sullivan, 501 U.S. 89 (1991). Signed by Magistrate Judge J. Thomas Ray on 10/20/11. (hph)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION

RICHARD LEE COX

PLAINTIFF

V.

NO. 1:09CV00053 JTR

MICHAEL J. ASTRUE,
Commissioner, Social
Security Administration

DEFENDANT

MEMORANDUM AND ORDER
I. Introduction
Plaintiff, Richard Lee Cox, has appealed the final decision of the Commissioner
of the Social Security Administration (the “Commissioner”) denying his claims for
Supplemental Security Income (“SSI”) and Childhood Disability Benefits (“CDB”).
Both parties have filed Appeal Briefs (docket entries #17 and #20), and the issues are
now joined and ready for disposition.
The Court’s function on review is to determine whether the Commissioner’s
decision is supported by substantial evidence on the record as a whole and whether it
is based on legal error. Long v. Chater, 108 F.3d 185, 187 (8th Cir. 1997); see also
42 U.S.C. § 405(g). While “substantial evidence” is that which a reasonable mind

might accept as adequate to support a conclusion,1 “substantial evidence on the record
as a whole” requires a court to engage in a more scrutinizing analysis:
“[O]ur review is more than an examination of the record for the
existence of substantial evidence in support of the Commissioner’s
decision; we also take into account whatever in the record fairly detracts
from that decision.” Haley v. Massanari, 258 F.3d 742, 747 (8th Cir.
2001). Reversal is not warranted, however, “merely because substantial
evidence would have supported an opposite decision.” Shannon v.
Chater, 54 F.3d 484, 486 (8th Cir. 1995).
Reed v. Barnhart, 399 F.3d 917, 920 (8th Cir. 2005).
On November 20, 2006, Plaintiff filed applications for SSI and CDB.2 (Tr. 8493). In his “Disability Report - Adult,” he stated that he became disabled on August
1, 1998, due to respiratory and food allergies, a “bad right leg,” and sinus infections.
(Tr. 111). After Plaintiff’s claims were denied at the initial and reconsideration levels,
he requested a hearing before an Administrative Law Judge (“ALJ”).
On March 24, 2009, the ALJ conducted an administrative hearing. (Tr. 36-51).

1

Reynolds v. Chater, 82 F.3d 254, 257 (8th Cir. 1996).

2

Plaintiff was twelve years old as of his alleged onset date, and twenty years old
when he filed his claims. He filed his claim for CDB based on the earnings record of
his father, who died when Plaintiff was fifteen years old. (Tr. 87).
In order to qualify for CDB, a claimant must prove that he is: (1) under a
disability; (2) a child of the wage earner under whose disability insurance the claimant
is applying; and (3) under the age of eighteen, or, if eighteen or older, under a
disability before the age of twenty-two. See 42 U.S.C. § 402(d)(1); 20 C.F.R. §
404.350.
2

Plaintiff was the only witness. At the time of the hearing, Plaintiff was twenty-two
years old, and in his sophomore year of college. (Tr. 40). He had no past relevant
work. (Tr. 40).
The ALJ considered Plaintiff’s impairments by way of the familiar five-step
sequential evaluation process. Step 1 involves a determination of whether the
claimant is involved in substantial gainful activity (“SGA”). 20 C.F.R. §
404.1520(a)(4)(I) (2005), §416.920. If the claimant is, benefits are denied, regardless
of medical condition, age, education, or work experience. Id., § 404.1520(b), §
416.920.
Step 2 involves a determination, based solely on the medical evidence, of
whether the claimant has a “severe” impairment, i.e., an impairment or combination
of impairments which significantly limits the claimant’s ability to perform basic work
activities. Id., § 404.1520(4)(ii), § 416.920. If not, benefits are denied. Id.
Step 3 involves a determination, again based solely on the medical evidence,
of whether the severe impairment(s) meets or equals a listed impairment which is
presumed to be disabling. Id., § 404.1520(a)(iii), § 416.920. If so, and the duration
requirement is met, benefits are awarded. Id.
Step 4 involves a determination of whether the claimant has sufficient RFC,
despite the impairment(s), to perform the physical and mental demands of past
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relevant work. Id., § 404.1520(4)(iv), § 416.920. If so, benefits are denied. Id.
Step 5 involves a determination of whether the claimant is able to make an
adjustment to other work, given claimant’s age, education and work experience. Id.,
§ 404.1520(4)(v), § 416.920. If so, benefits are denied; if not, benefits are awarded.
Id.
In his July 2, 2009 decision, (Tr.10-16), the ALJ found that Plaintiff: (1) had
not engaged in substantial gainful activity since August 1, 1998, his alleged onset
date; (2) had severe impairments consisting of obesity and Blount’s disease; (3) did
not have an impairment or combination of impairments meeting a Listing; (4) had the
RFC to perform the full range of sedentary work; (5) had no past relevant work; but
(6) based on an application of the Medical-Vocational Guidelines, could perform other
work in the national economy. (Tr. 10-16). Thus, the ALJ concluded that Plaintiff was
not disabled.
On September 23, 2009, the Appeals Council denied Plaintiff’s request for
review of the ALJ’s decision, thereby making it the final decision of the
Commissioner. (Tr. 1-3). Plaintiff then filed his Complaint appealing that decision
to this Court. (Docket entry #2).
II. Analysis
In Plaintiff’s Appeal Brief (docket entry #17), he argues that the ALJ erred: (1)
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in failing to apply SSR 02-01p in evaluating his obesity; (2) in not considering the
“impact” of his obesity on his ability to work; (3) in failing to consider the effects of
his obesity in combination with his other impairments; and (4) in failing to obtain
vocational expert (“VE”) testimony at Step 5. For the reasons discussed below, the
Court concludes that Plaintiff’s last argument has merit.
At the administrative hearing, Plaintiff testified that he was 5'11" and weighed
375 pounds.3 He stated that he had limitations in standing and lifting that made it
difficult for him to work. (Tr. 41). He also had a problem in his right leg due to
Blount’s disease, for which he had undergone a surgical repair.4 (Tr. 42). He testified
that he could stand for thirty minutes, and walk a block. (Tr. 42-43). He also had
difficulty climbing stairs. (Tr. 43).
Plaintiff argues that, because he suffered from morbid obesity, a nonexertional
impairment, the ALJ erred in relying on the Grids, rather than calling a vocational
expert. Pltf’s App. Brf. at 9-10. In response, the Commissioner argues that “because

3

On his December 7, 2006 application documents, he reported that he was 6'1"
and weighed 350 pounds. (Tr. 111). See also Tr. 159 (December 15, 2006 medical
record documenting height of 6'1" and weight of 365 pounds); Tr. 179 (October 26,
2006 medical record documenting height of 6'1" and weight of 350 pounds); Tr. 169
(June 21, 2003 medical record documenting weight of 350 pounds).
4

Blount’s disease, which is associated with obesity, is a growth disorder causing
the tibia to turn inward and bow the leg.
5

the ALJ discredited Plaintiff’s subjective complaints regarding his non-exertional
limitations and found Plaintiff could perform a full range of sedentary work, the ALJ
properly used the Grids[.]” Dft’s App. Brf. at 10-11.
“Obesity is . . . a nonexertional impairment which might significantly restrict
a claimant’s ability to perform the full range of sedentary work.” Lucy v. Chater, 113
F.3d 905, 909 (8th Cir. 1997). The relevant question is whether Plaintiff’s obesity was
severe enough to have prevented him from performing the full range of sedentary
work listed in the Medical-Vocational Guidelines. “Sedentary work involves lifting
no more than 10 pounds at a time and occasionally lifting or carrying articles like
docket files, ledgers, and small tools. Although a sedentary job is defined as one
which involves sitting, a certain amount of walking and standing is often necessary
in carrying out job duties.” 20 C.F.R. § 404.1567(a).
On October 26, 2006, Plaintiff was seen by Dr. Manamia Pardueard, a
physician at Arkansas Rehabilitation Services, for a disability assessment due to
complaints of “residuals of surgery/ [right] leg for Blount’s disease.” (Tr. 178). Dr.
Pardueard’s orthopedic examination showed that Plaintiff walked with a limp and that
his right leg had a slight lateral deviation. (Tr. 179). She assessed “Blount’s Disease
with Surgical Repair and Residual Effects; Pain R Leg - R/O Arthritis; Lateral
Deviation, R Leg.” (Tr. 179). She also noted that Plaintiff was morbidly obese, with
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a BMI of 46.2. (Tr. 179). She checked boxes indicating that Plaintiff had a
“limitation” in standing, kneeling, and lifting, and that he should “avoid” climbing and
“strenuous labor.” (Tr. 178).
In his decision, the ALJ acknowledged the assessment from Arkansas
Rehabilitation Services (Tr. 13), yet found that “there is no objective evidence that the
claimant could not perform at least sedentary work.” (Tr. 14).
This conclusion overlooks or ignores the fact that morbid obesity is a
nonexertional impairment that clearly may have restricted Plaintiff’s ability to perform
a full range of sedentary work. Plaintiff’s morbid obesity and lateral leg deviation
were certainly objective findings. Furthermore, a limitation on standing, kneeling, and
lifting, may all be attributable, at least in part, to morbid obesity. Thus, Plaintiff’s
obesity should have been included, along with his other severe impairments, in a
hypothetical question to a vocational expert. See Lucy , 113 F.3d at 909.
III. Conclusion
On remand, the ALJ should obtain vocational expert testimony at Step 5.
Furthermore, the ALJ should also carefully update the medical record and ensure that
he obtains and considers all of the medical evidence to support his RFC assessment.
IT IS THEREFORE ORDERED THAT the Commissioner's decision is
reversed and this matter is remanded to the Commissioner for further proceedings
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pursuant to “sentence four,” within the meaning of 42 U.S.C. § 405(g) and Melkonyan
v. Sullivan, 501 U.S. 89 (1991).
DATED this 20th day of October, 2011.

____________________________________
UNITED STATES MAGISTRATE JUDGE

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