Hurt v. Social Security Administration
Filing
17
ORDER REMANDING TO THE COMMISSIONER. The ALJ's decision is reversed and remanded to the Commissioner with instructions to further develop the record as necessary by re-contacting Hurt's treating sources and/or ordering physical consultative examinations. Signed by Magistrate Judge J. Thomas Ray on 5/2/2018. (jak)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
JONESBORO DIVISION
ERIC RUSSELL HURT
v.
PLAINTIFF
No. 3:17-CV-00176-JTR
NANCY A. BERRYHILL,
Deputy Commissioner for Operations,
performing the duties and functions
not reserved to the Commissioner
of Social Security Administration
DEFENDANT
ORDER REMANDING TO THE COMMISSIONER
Eric Hurt (“Hurt”) applied for social security disability benefits with an
alleged disability onset date of April 21, 2014. (R. at 222, 234). After conducting a
hearing, the administrative law judge (“ALJ”) denied Hurt’s application for benefits.
(R. at 24). The Appeals Council denied Hurt’s request for review. (R. at 1). The
ALJ’s decision now stands as the Commissioner’s final decision, and Hurt has
requested judicial review.1
For the reasons stated below, this Court reverses and remands the
Commissioner’s decision.
I.
The Commissioner’s Decision
The ALJ held that Hurt had the severe impairments of obesity, diabetes
mellitus, obstructive sleep apnea, chronic obstructive pulmonary disease,
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The parties have consented to the jurisdiction of the Magistrate Judge.
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hypertension, and major depressive disorder. (R. at 13). The ALJ held that Hurt’s
impairments left him with the residual functional capacity (“RFC”) to lift and carry
ten pounds occasionally and less than ten pounds frequently; stand and/or walk in
intervals of thirty to sixty minutes for two hours in an eight-hour workday; sit in
intervals of thirty minutes for six hours in an eight-hour workday; push and/or pull
ten pounds occasionally and less than ten pounds frequently; understand, remember,
and carry out simple job instructions; make judgments in simple work-related
situations; respond appropriately to co-worker and supervisors; and respond
appropriately to minor changes in usual work routine. (R. at 16). The RFC also
required that Hurt avoid exposure to excessive airborne irritants such as dust, fumes,
odors, smoke, etc. (R. at 16).
The ALJ took testimony from a vocational expert (“VE”), who testified that
the RFC would preclude Hurt from performing any of his past relevant work. (R. at
22–23). The VE testified further, however, that Hurt’s RFC would allow him to
perform other jobs in the national economy such as work as a “table worker” and
telephone quote clerk. (R. at 24). Thus, the ALJ held that Hurt was not disabled. (R.
at 24).
II.
Discussion
Hurt argues that the ALJ failed to properly develop the record concerning his
physical RFC and that the VE’s testimony conflicts with the Dictionary of
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Occupational Titles. Because the Court concludes that the ALJ did not fully and
fairly develop the record concerning Hurt’s physical RFC, it is not necessary to reach
his other ground for reversal.
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. Miller v. Colvin, 784 F.3d 472, 477 (8th Cir. 2015); see
also 42 U.S.C. § 405(g).
Hurt notes that the record contains no opinion from a treating or even an
examining physician regarding his physical abilities in the workplace. The record
consists entirely of treatment records with a single opinion regarding Hurt’s mental
RFC. In assessing Hurt’s RFC, the ALJ gave great weight to the non-examining
State Agency consultants’ opinions. (R. at 22).
Citing to Nevland v. Apfel, 204 F.3d 853 (8th Cir. 2000), Hurt argues that the
lack of a treating or examining physician opinion is a fatal flaw in the ALJ’s RFC
determination. In Nevland, there was no medical evidence concerning how the
plaintiff’s impairments affected his ability to function in the workplace. Id. at 858.
The Eighth Circuit noted that the opinions of non-examining physicians do not
normally constitute substantial evidence on the record as a whole and recognized
that it is not acceptable for an ALJ to draw his own inferences from the medical
record about a claimant’s ability to function in the workplace. Id.
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The Commissioner counters that Nevland does not go so far as to require a
treating or examining physician’s opinion to be in the record. In support of this
assertion, the Commissioner cites to a case from the Northern District of Iowa.
There, the court observed that Nevland does not require remand in every case where
the record lacks a treating physician’s opinion. Bakkum v. Colvin, No. 15-CV-2064
EJM, 2016 WL 1060294, at *2 (N.D. Iowa Mar. 14, 2016). However, Bakkum
concerned a case that was decided at step four, where the plaintiff was found capable
of returning to past relevant work. Id. Furthermore, the Bakkum court recognized
that, in a step five case like this one, where the burden shifts to the Commissioner to
prove that there are jobs that the claimant can perform existing in significant
numbers in the national economy, Nevland applies and requires that the ALJ’s RFC
determination to rest on medical records and opinions from a treating or examining
physician. Id.
Here, the record is devoid of medical evidence concerning the impact of
Hurt’s impairments on his physical RFC. The case was decided at step five, and the
burden shifted to the Commissioner as the burden shifted in Nevland. The facts in
this case mirror those in Nevland. The Commissioner argues that the ALJ relied on
treating source opinions, but that only applies to the mental portion of the RFC. As
Hurt has significant severe physical impairments, a single opinion regarding mental
impairments to which the ALJ gave little weight does not suffice. The
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Commissioner’s step five burden was not met, and the record does not have
sufficient evidence to support the ALJ’s RFC determination.
III.
Conclusion
It is not the task of this Court to review the evidence and make an independent
decision. Neither is it to reverse the decision of the ALJ because there is evidence in
the record which contradicts his findings. The test is whether there is substantial
evidence in the record as a whole which supports the decision of the ALJ. Miller,
784 F.3d at 477. The Court has reviewed the entire record, including the briefs, the
ALJ's decision, and the transcript of the hearing. The Court concludes that the record
as a whole does not contain ample evidence that “a reasonable mind might accept as
adequate to support [the] conclusion” of the ALJ in this case. Richardson v. Perales,
402 U.S. 389, 401 (1971). The ALJ’s decision is therefore REVERSED and
REMANDED to the Commissioner with instructions to further develop the record
as necessary by re-contacting Hurt’s treating sources and/or ordering physical
consultative examinations.
It is so ordered this 2nd day of May, 2018.
____________________________________
UNITED STATES MAGISTRATE JUDGE
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