Wilson v. Social Security Administration
MEMORANDUM OPINION AND ORDER reversing the Commissioner's decision and remanding this matter to the Commissioner for further proceedings consistent with this Opinion; this is a "sentence four" remand. Signed by Magistrate Judge Jerry W. Cavaneau on 9/25/12. (vjt)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
MICHAEL J. ASTRUE,
MEMORANDUM OPINION AND ORDER
Plaintiff, Barbra Wilson, seeks judicial review of her claim for supplemental
security insurance (SSI). 1 Judicial review of the Commissioner's denial of benefits
examines whether the decision is based on legal error and whether the findings of
fact are supported by substantial evidence in the record as a whole. Wiese v.
Astrue, 552 F.3d 728, 730 (8th Cir. 2009); see 42 U.S.C. §§ 405(g), 1383(c)(3).
Substantial evidence is "less than a preponderance but is enough that a reasonable
mind would find it adequate to support the conclusion." Wiese, 552 F.3d at 730.
In its review, the Court must consider evidence supporting the Commissioner's
decision as well as evidence detracting from it. Id. That the Court would have
reached a different conclusion is not a sufficient basis for reversal; rather, if it is
possible to draw two inconsistent conclusions from the evidence and one of these
conclusions represents the Commissioner's findings, the denial of benefits must be
The parties have consented to the Magistrate Judge’s jurisdiction. (doc. 5)
An Administrative Law Judge (ALJ) held a video hearing on April 5, 2010,
and rendered an unfavorable opinion on May 21, 2010. The Appeals Council
denied Plaintiff’s request for review on April 5, 2011, rendering the ALJ’s opinion
the final opinion of the Commissioner.
Plaintiff was fifty-two years of age at the time of the ALJ’s decision. She has
a GED. She has not had any past relevant work for the past fifteen years. Plaintiff
alleges that she has been disabled since July 1, 1997, due to fibromyalgia, anxiety
and depression. She has a protective filing date of June 12, 2008.
To evaluate Plaintiff's claim, the ALJ followed the five-step sequential
process. At step one, the ALJ found that Plaintiff had not engaged in substantial
gainful activity since June 12, 2008, her protective filing date. At step two, he
found the medical evidence established that Plaintiff suffered from the following
severe impairments: depression, anxiety and fibromyalgia. At step three, the ALJ
determined that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled any of the listed impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1 (the listings). At step four, he evaluated
Plaintiff’s credibility, finding that her subjective complaints were not fully
credible. He concluded that Plaintiff had the Residual Functional Capacity (RFC):
. . . to lift and/or carry twenty pounds occasionally and ten pounds
frequently. The claimant can stand and/or walk for about six hours in
an eight hour workday and sit for about six hours in an eight hour
workday.2 The claimant can perform work where interpersonal
contact is incidental to work performed and complexity of tasks is
learned and performed by rote with few variables and little judgment.
The claimant requires supervision which is simple, direct, and
concrete. (Tr 13)
The ALJ continued to step five of the analysis. A vocational expert testified
that given Plaintiff’s RFC and considering all other relevant factors, she would be
able to perform the requirements of representative occupations such as an assembly
line worker under a light classification, and that there were a significant number of
such jobs nationally, regionally and in Arkansas. The ALJ accepted this testimony
and thus found Plaintiff was not disabled.
Plaintiff argues in essence that the ALJ’s credibility determination was
flawed, which led to a faulty RFC determination. The ALJ’s hypothetical question
to the VE included a full range of light work, with the limitations noted above.
Therefore, Plaintiff argues, the final conclusion is not supported by substantial
evidence, because the hypothetical question did not “capture the concrete
consequences” of Plaintiff’s impairments. One important aspect of her argument is
that the finding Plaintiff is able to physically perform the full range of light work is
not supported by substantial evidence. The Court agrees with that aspect of the
argument and remands for further development and a re-examination of Plaintiff’s
These physical parameters correspond to a full range of light work.
credibility in light of additional evidence to be obtained regarding her physical
capabilities and extent of pain and fatigue.
The ALJ did a thorough job of analyzing the evidence relating to Plaintiff’s
depression and anxiety. However, his credibility analysis included very little
discussion of the medical evidence relating to Plaintiff’s alleged fibromyalgia. He
The objective medical evidence does not support the claimant’s
alleged severity of her physical complaints. A state agency medical
consultant reviewed the claimant’s records on July 22, 2008 to
determine her physical residual functional capacity (8F). It was found
the claimant could occasionally lift and/or carry twenty pounds and
frequently lift and/or carry ten pounds. Also, it was found that the
claimant could stand and/or walk for about six hours in an eight hour
workday and sit for about six hours in an eight hour workday. No
other limitations were found. Another state agency medical
consultant reviewed the claimant’s records on January 8, 2009 and
affirmed these findings (14F). These findings are given significant
weight as they are consistent with the objective medical evidence. 3
In making these findings, he determined that the Plaintiff’s testimony
regarding her pain and fatigue was not wholly credible. He did not explain why he
thought the objective medical evidence does not support Plaintiff’s complaints, nor
did he discuss how the non-examining agency physicians’ findings are consistent
with the objective medical evidence. As Plaintiff points out, the Eighth Circuit has
said that opinions of non-examining physicians generally do not constitute
substantial evidence. Nevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000). While it
may be argued that the Eighth Circuit in later cases has considered such opinions
as substantial where the medical and other evidence overall supports them, there is
no evidence in Plaintiff’s records other than the above mentioned opinions
indicating Plaintiff’s functional ability. That is, no treating or examining physician
has addressed her ability to lift, sit or stand. Nor can it be said that the records
demonstrate the validity of the agency physician’s conclusions. Plaintiff has been
under a diagnosis of fibromyalgia since at least 2000. She went to the doctors
numerous times in the following years complaining of pain and fatigue. As
Plaintiff argues, Dr. Terry D. Hunt has repeatedly noted the presence of “trigger
points.” Plaintiff has been prescribed strong pain medication on a long-term basis,
and the Court does not find any mention in the record that any doctor considered
her to be a malingerer or drug seeker. Further, Dr. Hunt has said she is unable to
work because of her pain and resulting depression. 4 Given the overall medical
record, Plaintiff is entitled to be sent for a consultative physical examination to
attempt to determine her functional limitations due to pain and fatigue arising from
her fibromyalgia. While it is admittedly difficult to assess pain, the opinion of a
Tr. 167. Plaintiff complains that the ALJ has ignored this opinion. He did
not mention it. There may be good reasons to discount the opinion, See,
Halverson v. Astrue, 600 F.3d 922, 930 (8th Cir. 2010), but it is axiomatic that the
ALJ must give good reasons for doing so. This must be addressed on remand.
consulting physician, who has a chance to observe the patient, certainly bears more
weight than that of a doctor who has never seen the patient and is relying solely on
records. When the consultation has been completed, the ALJ should reevaluate the
entire record, including Dr. Hunt’s opinion, to determine credibility and RFC and
to proceed accordingly.
The Court is not finding that Plaintiff is disabled. That is for the ALJ to
determine on remand. Plaintiff argues that the ALJ’s consideraton of Plaintiff’s
limited work history and daily activities are not a proper part of a credibility
determination. The Court disagrees. Both are factors which may be considered,
and the ALJ may make that a part of his analysis on remand.
ACCORDINGLY, the Commissioner's decision is reversed and this matter is
remanded to the Commissioner for further proceedings 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).
IT IS SO ORDERED this 25th day of September, 2012.
UNITED STATES MAGISTRATE JUDGE
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