Brown v. Social Security Administration

Filing 27

MEMORANDUM OPINION AND ORDER reversing the Commissioner's decision and remanding this case. This is a sentence four remand within the meaning of 42 U.S.C. § 405(g) and Melkonyan v. Sullivan, 501 U.S. 89 (1991). Signed by Magistrate Judge Beth Deere on 7/12/12. (hph)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
EASTERN DIVISION
KOURTNEY IRIS BROWN
V.

PLAINTIFF

CASE NO.: 2:11CV00141 BD

MICHAEL J. ASTRUE, Commissioner,
Social Security Administration

DEFENDANT

MEMORANDUM OPINION AND ORDER
Plaintiff Kourtney Iris Brown appeals the final decision of the Commissioner of
the Social Security Administration (the “Commissioner”) denying her claims for
Disability Insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”)
and for Supplemental Security Income (“SSI”) benefits under Title XVI of the Act. For
reasons set out below, the decision of the Commissioner is REVERSED and the case is
REMANDED to the Commissioner for further action.
I.

Background
On April 15, 2008, Ms. Brown filed for DIB and SSI, alleging disability beginning

on April 1, 2007, due to arthritis, synovitis, osteochondromatosis, scoliosis, dizziness,
blurred vision, and a heart condition. (Tr. 88, 92, 110) Ms. Brown’s claims were denied
initially and upon reconsideration. At her request, an Administrative Law Judge (“ALJ”)
held a hearing on January 11, 2010, at which Ms. Brown appeared with her non-attorney
representative. (Tr. 25) At the hearing, the ALJ heard testimony from Ms. Brown, her
mother, and a vocational expert (“VE”). (Tr. 25-39)

The ALJ issued a decision on March 31, 2010, finding that Ms. Brown was not
disabled under the Act. (Tr. 12-19) On April 1, 2011, the Appeals Council denied Ms.
Brown’s request for review, making the ALJ’s decision the Commissioner’s final
decision. (Tr. 5-7)
Ms. Brown was nineteen years old at the time of the hearing. (Tr. 92) She was
5'2" tall and weighed approximately 103 pounds. (Tr. 434) She was pregnant, but did not
have any other children. (Tr. 31) She had completed high school and was a full-time
college student. (Tr. 28)
Ms. Brown testified that she had difficulty picking up objects due to arthritis in her
fingers and wrist. (Tr. 30) She had difficulty sleeping, but her main problems were in her
fingers, wrists, elbows, and ankles. (Tr. 32) She had good days and bad days. (Tr. 33,
36-37)
Ms. Brown stated that her primary doctor was David Boatright, M.D. (Tr. 29) She
was covered by her parent’s medical insurance. (Tr. 29) At the time of the hearing, due
to her pregnancy, Ms. Brown was taking only folic acid and children’s iron vitamins. (Tr.
31)
II.

Decision of the Administrative Law Judge
The ALJ followed the required sequential analysis to determine: (1) whether the

claimant was engaged in substantial gainful activity; (2) if not, whether the claimant had a
severe impairment; (3) if so, whether the impairment (or combination of impairments)

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met or equaled a listed impairment; and (4) if not, whether the impairment (or
combination of impairments) prevented the claimant from performing past relevant work.
Because the ALJ found that Ms. Brown could perform her past relevant work, he ended
the analysis at step four. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).
The ALJ found that Ms. Brown had not engaged in substantial gainful activity
since her alleged disability onset date. (Tr. 14) And he found that Ms. Brown had two
severe impairments: rheumatoid arthritis and cardiac murmur. (Tr. 14) The ALJ also
found, however, that Ms. Brown did not have an impairment or combination of
impairments meeting or equaling an impairment listed in 20 C.F.R. Part 404, Subpart P,
Appendix 1 (20 C.F.R. §§ 404.1526, 416.926). (Tr. 15)
The ALJ determined that Ms. Brown had the residual functional capacity (“RFC”)
to perform light work, if she could sit for 6 hours in an 8-hour workday, stand or walk for
6 hours in an 8-hour workday, and lift and carry up to 20 pounds occasionally; she could
frequently use her hands, feet, and arms for simple grasp, fine manipulations, handling
objects, feeling objects, reaching, pushing, pulling and operating controls with the feet
and hands. In addition, Ms. Brown could occasionally climb, balance, stoop, crouch,
kneel, and crawl. She would have to avoid concentrated exposure to heights and moving
machinery, and could tolerate only moderate exposure to chemicals, noise, humidity, dust,
fumes, temperature extremes, and vibrations. Ms. Brown had no limitations in her ability
to hear and speak. (Tr. 15-19)

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The ALJ determined that Ms. Brown’s RFC would not preclude performance of
her past relevant work as a grocery cashier. (Tr. 19) Accordingly, the ALJ found that
Ms. Brown was not disabled. (Tr. 19)
III.

Analysis
A.

Standard of Review

In reviewing the Commissioner’s decision, this Court must determine whether
there is substantial evidence in the record as a whole to support the decision. Boettcher v.
Astrue, 652 F.3d 860, 863 (8th Cir. 2011); 42 U.S.C. § 405(g). Substantial evidence is
“less than a preponderance, but sufficient for reasonable minds to find it adequate to
support the decision.” Id. (citing Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir.
2005)).
In reviewing the record as a whole, the Court must consider both evidence that
detracts from the Commissioner’s decision and evidence that supports the decision; but,
the decision cannot be reversed, “simply because some evidence may support the opposite
conclusion.” Id. (citing Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir. 2006)).
B.

Plaintiff’s Arguments for Reversal

Ms. Brown claims the ALJ’s step four finding that she could perform past relevant
work is not supported by substantial evidence because: (1) the ALJ erred when
considering the opinions of her treating physicians; and (2) the ALJ erred in his
assessment of her credibility. (#25)

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C.

Opinions of Treating Physicians

Ms. Brown argues that the ALJ failed to properly consider the opinions of her
treating physician, Dr. Boatright and an examining physician, Harold H. Chakales, M.D.
(#25, p. 12-15) Specifically at issue is a letter from Dr. Boatright dated January 16, 2010
(Tr. 484-485), and a consultative examination performed by Dr. Chakales on September
9, 2009. (Tr. 433-436)
When determining disability, the Social Security Administration “will always
consider the medical opinions in [the] case record.” 20 C.F.R. §§ 404.1527(b),
416.927(b). Moreover, a treating physician’s opinion is generally entitled to controlling
weight if well supported by acceptable medical evidence and consistent with the other
substantial evidence in the record. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2).
In this case, the ALJ failed to even mention Dr. Boatright’s letter, even though it
was certainly part of the case record. (Tr. 12-19) When discussing the opinion evidence,
the ALJ only discussed the assessment by Dr. Chakales. (Tr. 18)
The Commissioner admits that the ALJ failed to address Dr. Boatright’s letter, but
argues that the letter was not a “medical opinion” and that any error in failing to address it
was harmless. (#26, p. 4-9) This argument is not persuasive.
“Medical opinions” are statements from physicians that reflect judgments about
the nature and severity of impairments, symptoms, or prognosis; what the claimant can
still do despite impairments; and the claimant’s physical or mental restrictions. 20 C.F.R.

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§§ 404.1527(a)(2), 416.927(a)(2). As the Commissioner noted, much of Dr. Boatright’s
letter described what Ms. Brown reported to him. In fact, Dr. Boatright specifically listed
what Ms. Brown reported. (Tr. 484-485) Several of Dr. Boatright’s comments, however,
reflect his own independent opinions about Ms. Brown’s limitations.
Dr. Boatright stated that Ms. Brown had “significant limitations that would limit
her ability for repetitive reaching, handling, or fingering.” (Tr. 485) He stated that Ms.
Brown could use her hands, fingers, and arms in grasping, turning, twisting objects, fine
manipulation, and reaching only about 20% of an 8-hour workday. (Tr. 485)
These opinions qualify as medial opinions. If there had been a question as to
whether Dr. Boatright actually held these opinions, as opposed to merely repeating Ms.
Brown’s complaints, the ALJ should have contacted the doctor to resolve the question.
See Goff v. Barnhart, 421 F.3d 785, 791 (8th Cir. 2005) (citing 20 C.F.R. §§
404.1512(e), 416.912(e) (contacting a treating physician is necessary if the doctor’s
records are inadequate to determine disability, such as when a medical source report
contains a conflict or ambiguity that must be resolved).
Dr. Chakales performed a consultative examination on September 9, 2009, at the
request of the Social Security Administration. (Tr. 433-436) Dr. Chakales found that in
an 8-hour workday, Ms. Brown could frequently use her hands for grasping, handling,

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and fine manipulation.1 (Tr. 436) He also noted swelling in Ms. Brown’s hands and
stated that she could not withstand the rigors of a regular work week. (Tr. 435)
The ALJ found Dr Chakales’s written assessment inconsistent with the checklist
he completed. (Tr. 18, 434-436) As the Commissioner notes, however, the ALJ included
almost every limitation from the checklist in Ms. Brown’s RFC. (Tr. 15, 436)
The Commissioner argues that Dr. Chakales’s opinion “appeared to be based on a
similar statement that Plaintiff made to the doctor when she told him about her
impairments, rather than the doctor’s objective findings.” (#26, p. 8) After thoroughly
reviewing the record, the Court cannot find support for the assertion that Dr. Chakales’s
written opinion was not his own opinion, but instead reflected only what Ms. Brown had
told him. When considering the entire assessment, the written report and checklist are not
really inconsistent.
On the written checklist Dr. Chakales completed, he was asked to assess Ms.
Brown’s ability to sustain work-related activities in an 8-hour day. (Tr. 436) A plain
reading of “an 8 hour day” would mean one 8-hour day. Dr. Chakales found very few
limitations in an 8-hour day. (Tr. 436) He found, however, that Ms. Brown could not
“withstand the rigors of an eight hour per day job for a forty hour work week.” (Tr. 434)
(emphasis added) In the very next sentence, Dr. Chakales states, “[s]he does have the
ability to move around and is active, but after a stressful day is less active.” (Tr. 434)

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“Frequent” use means one-third to two-thirds of the time. (Tr. 436)
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It does not appear that the ALJ made any attempt to contact Dr. Chakales to
inquire about the possibly inconsistent opinion. Instead, the ALJ adopted almost the
entire checklist as part of his RFC determination. He found the written statements,
however, “unsupported.” (Tr. 18) If Dr. Chakales’s checklist was limited to his opinion
about a single day, which would explain the perceived inconsistency, then relying on the
checklist to support Ms. Brown’s RFC would be error.2
The record no doubt contains medical evidence that could be considered
inconsistent with Dr. Boatright’s and Dr. Chakales’s opinions. (Tr. 315, 355, 417-418,
473) And an ALJ may certainly grant less weight to a treating physician’s opinion when
that opinion conflicts with other substantial medical evidence contained within the record.
Prosch v. Apfel, 201 F.3d 1010, 1013-14 (8th Cir. 2000). The ALJ’s failure even to
consider Dr. Boatright’s opinion, however, was error. The ALJ’s reliance on Dr.
Chakales’s checklist alone was questionable.
The Commissioner argues that even if error, the ALJ’s error was harmless. (#26,
p. 9) But this assertion is contrary to the record.
The ALJ found Ms. Brown could perform past relevant work as a cashier at a
grocery store, where repetitive use of hands, fingers, and arms is essential. Dr. Boatright
specifically found limitations in Ms. Brown’s ability to reach, handle, and finger. (Tr.

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An individual’s RFC is their ability to do sustained work-related activities eight
hours a day, for five days a week. Prosch, 201 F.3d at 1016.
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485) He stated that Ms. Brown could use her hands, fingers, and arms in grasping,
turning, twisting objects, fine manipulation, and reaching only about 20% of the time in
an 8-hour workday. (Tr. 485) Dr. Chakales’s checklist, which the ALJ clearly relied on
in forming Ms. Brown’s RFC, indicated that Ms. Brown could frequently use her hands in
grasping, handling, reading, and fine manipulation. (Tr. 30, 436) But here, “frequent”
use meant only 1/3 to 2/3 of the time. (Tr. 436) If Dr. Chakales found Ms. Brown could
do these activities a maximum of 1/3 of a day, which is not a huge difference from Dr.
Boatright’s 20% finding, Dr. Chakales’s checklist would still reflect a “frequent” ability
to do these activities.
Clearly, Ms. Brown would not be able to perform grocery cashier work with
significant limitations that would prevent repetitive reaching, handling, or fingering. She
also could not perform this work at the level of substantial gainful activity if she could not
withstand the rigors of a forty-hour work week. Based on this record, could Ms. Brown
really perform grocery cashier work if she could only use her hands for 1/3 of day, which
was essentially the ALJ’s finding? The record does not contain substantial evidence
showing that she could.
The ALJ relied on VE testimony to find that Ms. Brown could perform her past
work as a grocery cashier. (Tr. 19) The entire line of questioning to the VE follows:
ALJ: In the record as Exhibit – excuse me – well, shoot. Well,
Kourtney my computer’s acting up. I guess it is Exhibit 23F
from Dr. C-H-A-K-A-L-E-S indicating a residual functional
capacity occasionally lift up to 10, occasionally lift 11 to 20,
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whatever that means. Sit six hours in an eight hour workday,
stand or walk six. Frequent manipulative occasional postural,
moderate environmental, that would be consistent with cashier
work, would it not Dr. Sales?
VE: Yes, sir.
(Tr. 30)
The ALJ did not provide an age range or educational background for the VE. The
ALJ failed to give Ms. Brown’s representative a chance to question the VE regarding his
response or credentials. (Tr. 27-39) Neither the ALJ nor the VE described the
requirements of Ms. Brown’s past cashier work. It appears that the VE did not rely on the
Dictionary of Occupational Titles (“DOT”) in forming his response.3
The ALJ provided the VE with an RFC with occasional capacity to lift up to 10
pounds. (Tr. 30) According to the DOT, a grocery store cashier must be able to perform
light work. See DOT code 211.462-014. Light work requires an ability to frequently, not
occasionally, lift or carry objects weighing up to 10 pounds. See 20 C.F.R. §§
404.1567(b); 416.967(b). An occasional ability to lift up to 10 pounds is not sufficient to
perform light work.

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The DOT contains a number of different types of cashier work, with different
requirements for exertion.
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The limitations in the hypothetical posed to the VE do not match the ALJ’s written
RFC findings.4 (Tr. 15, 30) The VE’s testimony is inconsistent with the DOT. And
these inconsistencies are not explained anywhere in the record.
The VE testimony, which the ALJ relied on, was insufficient. Accordingly, there
is not substantial evidence in the record to show that Ms. Brown could perform her past
relevant work. This makes the ALJ’s error in failing to adequately consider the medical
opinions material.
On remand, the ALJ should consider Dr. Boatright’s opinions and clarify the
apparent inconsistencies between Dr. Chakales’s checklist and his written assessment. If
necessary, the ALJ should seek VE testimony to determine whether Ms. Brown could
perform past relevant work or any other jobs existing in significant numbers in the
national economy. The hypothetical question presented to the VE should match the
ALJ’s RFC determination. The VE should also either conform his or her testimony to the
DOT, or describe the requirements of the jobs the VE finds Ms. Brown can perform.
D.

Credibility Determination

Ms. Brown argues that the ALJ failed to properly assess the credibility of her
subjective complaints. (#25, p. 15-18) The ALJ evaluated Ms. Brown’s subjective

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When a hypothetical question does not encompass all relevant impairments, the
VE’s testimony does not constitute substantial evidence. Buckner v. Astrue, 646 F.3d
549, 561 (8th Cir. 2011).
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allegations under the requirements of 20 C.F.R. § 404.1529, 20 C.F.R. § 416.929, and
Social Security Rulings 96-4p and 96-7p. (Tr. 15)
The ALJ focused primarily on Ms. Brown’s daily activities and the objective
medical record. (Tr. 16-18) When reviewing the medical record, the ALJ also discussed
medication usage and effectiveness (Tr. 17-18) He noted that weather aggravated Ms.
Brown’s arthritis. (Tr. 16) The ALJ also noted the frequency of Ms. Brown’s pain and
her alleged functional restrictions. (Tr. 16)
The ALJ’s credibility discussion was not exhaustive. He did, however, note
almost all of the factors relevant to credibility. See Curran-Kicksey v. Barnhart, 315 F.3d
964, 968 (8th Cir. 2003) (objective medical evidence, prior work history, daily activities,
duration, frequency, and intensity of pain, precipitating or aggravating factors, dosage,
effectiveness, and side effects of medication, and functional restrictions are all factors to
consider when assessing the credibility of a claimant’s subjective allegations). This Court
cannot find error in the ALJ’s credibility determination.
IV.

Conclusion
After considering the record as a whole, the Court concludes the decision of the

Commissioner is not supported by substantial evidence. The Commissioner’s decision is
reversed, and this case is remanded for action consistent with this opinion. This is a
“sentence four” remand within the meaning of 42 U.S.C. § 405(g) and Melkonyan v.
Sullivan, 501 U.S. 89 (1991).

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DATED this 12th day of July, 2012.

___________________________________
UNITED STATES MAGISTRATE JUDGE

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