Potter v. Social Security Administration

Filing 14

MEMORANDUM OPINION AND ORDER reversing and remanding this case. This is a "sentence six" remand. Signed by Magistrate Judge H. David Young on 5/24/2011. (lej)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
WESTERN DIVISION

REGINA LUNSFORD POTTER

v.

PLAINTIFF

NO. 4:10CV01120 HDY

MICHAEL J. ASTRUE,
Commissioner of the Social
Security Administration

DEFENDANT

MEMORANDUM OPINION AND ORDER

BACKGROUND. Plaintiff Regina Lunsford Potter (“Potter”) began her attempt to
obtain benefits by filing applications for disability insurance benefits and supplemental
security income benefits pursuant to the provisions of the Social Security Act (“Act”). Her
applications were denied initially and upon reconsideration. She then requested, and
received, a de novo hearing before an Administrative Law Judge (“ALJ”). A decision
partially adverse to Potter was eventually issued by the ALJ, and Potter appealed that
portion of the decision to the Appeal Council. The adverse portion of the ALJ’s decision
was affirmed by the Appeals Council and became the final decision of the Commissioner
of the Social Security Administration (“Commissioner”). Potter then commenced the case
at bar by filing a complaint pursuant to 42 U.S.C. 405(g). In the complaint, she
challenged the adverse portion of the Commissioner’s final decision.

STANDARD OF REVIEW. The sole inquiry for the Court is to determine whether the
ALJ’s findings are supported by substantial evidence on the record as a whole. It requires
the Court to consider the weight of the evidence in the record and apply a balancing test
to evidence which is contrary. See Heino v. Astrue, 578 F.3d 873 (8th Cir. 2009).
THE ALJ’S FINDINGS. The ALJ made findings pursuant to the five step sequential
evaluation process. At step one, the ALJ found that Potter has not engaged in substantial
gainful activity since April 16, 2009. At step two, the ALJ found that Potter has the
following severe impairments: “(1) degenerative joint disease of the right knee and left
shoulder; (2) degenerative disc disease of the lumbar spine; (3) dysthmic disorder; (4)
polysubstance abuse in remission; (5) dependent personality disorder; and (6)
fibromyalgia ...” See Transcript at 12. At step three, the ALJ found that Potter does not
have an impairment or combination of impairments listed in, or medically equal to one
listed in, the governing regulations. The ALJ then assessed Potter’s residual functional
capacity and found it to be as follows:

... the claimant can occasionally lift no more than 10 pounds at a time with
less than 10 pounds frequently. She can stand and/or walk 2 hours of an 8hour workday and sit 6 hours of an 8-hour workday with the option to sit
and/or stand at will. She can push and pull as much as she can lift and
carry. She cannot reach overhead with her left arm but otherwise she can
occasionally reach. Secondary to some nonexertional limitations, the
claimant can understand, remember, and carryout simple job instructions;
make judgments in simple work related situations; and respond
appropriately to co-workers and supervisors with only incidental contact.
She can respond appropriately to minor changes in usual work routines, but
she cannot deal with the general public.

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See Transcript at 16. On the basis of the foregoing findings, the ALJ found that Potter
retains the residual functional capacity to perform “less than the full range of sedentary
work ...” See Transcript at 16. At step four, the ALJ found that Potter cannot perform
her past relevant work as an assistant manager of a hotel, a cotton gin operator, a meat
packer, or a lab assistant. At step five, the ALJ made a series of findings that resulted
in Potter receiving some of the benefits she sought; the findings are as follows:
“The claimant was 43 years old on the alleged onset date of
disability. This is defined in the regulations as a younger individual. On
April 16, 2009, the claimant attained 49 ½ years of age and her age
category changed to an individual closely approaching advanced age ...”
“The claimant has at least a high school education ...”
“Prior to April 16, 2009, transferability of job skills is not material
to the determination of disability because using the Medical-Vocational
Rules as a framework supports a finding that the claimant is ‘not disabled,’
whether or not the claimant has transferable job skills. Beginning on April
16, 2009, the claimant has not been able to transfer any job skills to other
occupations ...”
“Prior to April 16, 2009, the date the claimant’s age category
changed, considering the claimant’s age, education, work experience, and
residual functional capacity, there were a significant number of jobs in the
national economy that the claimant could have performed ...”
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“Beginning on April 16, 2009, the date the claimant’s age category
changed, considering the claimant’s age, education, work experience, and
residual functional capacity, there are not a significant number of jobs in
the national economy that the claimant could perform ...”
“The claimant was not disabled prior to April 16, 2009, but became
disabled on that date and has continued to be disabled through the date of
this decision ...”
“The claimant’s disability began on April 16, 2009, and she is
entitled to Title XVI benefits only. She was not insured for Title II benefits
due to the fact her insured status expired on December 31, 2008.”
See Transcript at 20-21.
POTTER’S ASSERTIONS OF ERROR. Are the ALJ’s findings supported by substantial
evidence on the record as a whole? Potter thinks not and maintains the case should be
remanded for two primary reasons:
(1) It should be remanded pursuant to “sentence four” of 42 U.S.C. 405(g) because
the ALJ failed to provide “reasoned conclusions, based in the medical evidence, for his
assessment of [Potter’s residual functional capacity] and the presentation of an
appropriate hypothetical question to the [vocational expert].” See Document 12 at 9.
(2) It should be remanded pursuant to “sentence six” of 42 U.S.C. 405(g) because
the ALJ and the Appeal Council failed to consider “new and material evidence directly
related to the diagnosis and onset of ... Potter’s back pain.” See Document 12 at 12.
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ANALYSIS. Potter maintains that this case should be remanded pursuant to
“sentence four” of 42 U.S.C. 405(g). She so maintains because the ALJ failed to provide
“reasoned conclusions, based in the medical evidence, for his assessment of [Potter’s
residual functional capacity] and the presentation of an appropriate hypothetical
question to the [vocational expert].” See Document 12 at 9.
Residual functional capacity is simply an assessment of “the most a person can do
despite that person’s limitations.” See Brown v. Barnhart, 390 F.3d 535, 538-39 (8th Cir.
2004). The assessment is made using all of the relevant evidence in the record and must
be supported by “medical evidence that addresses the claimant’s ability to function in
the workplace.” See Id. at 539 [internal quotation omitted].
The record reflects that Potter was seen by Dr. Joanne Gregory (“Gregory”),
Potter’s treating physician, on several occasions between April of 2008 and March of
2009. See Transcript at 323-332. On March 9, 2009, Gregory completed a medical source
statement of Potter’s ability to perform work-related physical activities. See Transcript
at 333-336. Gregory’s findings included the following: (1) Potter can stand and/or walk
less than two hours during an eight hour workday; (2) she can sit for a total of two hours,
with normal breaks, during an eight hour workday; (3) she is limited in her upper and
lower extremities; and (4) her ability to perform manipulative functions such as handling
and fingering was limited to an occasional basis. See Transcript at 333-334. With regard
to the medical and/or clinical findings to support the foregoing findings, Gregory
represented the following:
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Patient has peripheral neuropathy with persistent pain in upper and lower
extremities; also has been diagnosed with fibromyalgia and has recurrent
pain with this. Also [degenerative] disc disease in lumbar [and cervical]
spine. Patient on pain [medication] and muscle relaxer along with
neurontin, all of which can make an individual somnolent, dizzy, or impair
judgment.

See Transcript at 334.
The ALJ considered the medical source statement but eventually chose to discount
the findings made by Gregory. He did so primarily for two reasons. First, the ALJ found
that Gregory’s findings were not supported by the medical evidence, specifically finding
that there was nothing in the record about “any limitations in handling and fingering,
except [Potter’s] issues with her left shoulder in terms of reaching,” and there was no
“objective evidence of peripheral neuropathy.” See Transcript at 16. Second, the ALJ
found that Gregory’s findings were contrary to other evidence in the record, including
the findings of a consultative physician and the state agency consultant. See Transcript
at 16-17.
A treating physician’s findings are given controlling weight if they are “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and ...
not inconsistent with the other substantial evidence in [the] record.” See Choate v.
Barnhart, 457 F.3d 865, 869 (8th Cir. 2006) [internal quotation omitted]. The findings of
a treating physician may be discounted or even disregarded if other medical assessments
are supported by better or more thorough medical evidence or if the treating physician
renders inconsistent opinions that undermine the credibility of his findings. See Id.
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The record before the ALJ supports his decision to discount Gregory’s findings as
to Potter’s ability to perform the manipulative functions of handling and fingering and
her peripheral neuropathy, an impairment the Court understands to involve damage to
nerves that results in, inter alia, a burning sensation, pain, and tingling or numbness. The
Court can find no evidence in the record before the ALJ to support Gregory’s findings as
to Potter’s limitation in performing the aforementioned manipulative functions or her
peripheral neuropathy.
The record before the ALJ, though, is not the same record that was before the
Appeal Council and is now before the Court. During the appeal of the ALJ’s August 24,
2009, decision, Potter submitted the results of a January 8, 2010, MRI to the Appeals
Council. In an April 21, 2010, letter, Gregory opined the following regarding the results:

This letter is in reference to the recent findings of the MRI of January 8,
2010, with the findings of a Tarlov cyst. This Tarlov cyst had not been seen
prior in studies with CT’s and plain film x-rays. These are often missed with
CT and plain film x-rays. It usually is in an area that compresses the nerve
root or encapsulates the nerve root, causing severe nerve compression
symptoms, such as shooting and burning pain to a more severe degree than
her plain film x-rays or CT would show. This certainly explains all the
symptoms she was having since 2006, with the severe lower back pain in
it’s severity, when compared to the CT scan findings. It is my opinion that
the [Tarlov] cyst has probably been present since 2006 or 2007 when her
severe symptoms started.

See Document 12, Exhibit A at 4. Potter has now submitted the results to the Court as an
exhibit to her brief. The question for the Court is whether the results warrant remanding
this case.
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The Appeals Council is obligated to consider evidence submitted with a request for
review if the evidence is “(a) new, (b) material, and (c) relates to the period on or
before the date of the ALJ’s decision.” See Bergmann v. Apfel, 207 F.3d1065, 1069 (8th
Cir. 2000) [internal quotation omitted]. To be “new,” the evidence “must be more than
merely cumulative of other evidence in the record.” See Id. To be “material,” the
evidence “must be relevant to [the] claimant’s condition for the time period for which
benefits were denied” and “must not merely detail after-acquired conditions or postdecision deterioration of a pre-existing condition.” See Id. at 1069-1070.
The Commissioner acknowledges that the results of the MRI “relate to the time
period [for] which benefits were denied.” See Document 13 at 11. On the question of
whether the results are “new,” his position is not a model of clarity. It appears that he
simply has no position on that question. On the question of whether the results are
“material,” his position is quite clear; he maintains that they are not “material,” that
is, he maintains that the results “would not have changed the ALJ’s decision had the ALJ
had the [results] before him.” See Document 13 at 11.
Potter’s attorney sent the results of the MRI to the Appeal Council by certified
mail on April 29, 2010. See Document 12, Exhibit A at 5. The results were preliminarily
received on May 5, 2010, and were received by the Office of Disability Adjudication and
Review on May 12, 2010. See Id. On June 21, 2010, the Appeals Council affirmed the
decision of the ALJ. See Transcript at 1. Sadly, the results were not made a part of the
administrative record now before the Court.
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Did the Appeals Council actually consider the results of the MRI in affirming the
ALJ’s decision? The Court cannot say for certain because the administrative record does
not contain the results. Moreover, there is no mention of the results in the Appeals
Council’s notice of action. See Transcript at 1-3. Although it is tempting to simply
presume that the Appeal Council considered the results in affirming the ALJ’s decision
as they were received prior to the notice of action affirming the decision, the Court will
resist that temptation and instead explore whether the results are “new” and “material.”
Having reviewed the record, the Court finds that the results of the MRI are clearly
“new.” They introduce evidence into the record of a Tarlov cyst, a growth not previously
known to any physician, treating or otherwise, and believed by Gregory to be “present
since 2006 or 2007.” See Document 12, Exhibit A at 4.
Are the results of the MRI “material?” The Court is not prepared to embrace the
Commissioner’s assertion that they would not have changed the ALJ’s decision. Although
it will not be clear until the record is fully developed, the results appear to provide a
plausible basis for Gregory’s findings. Specifically, the results suggest a basis for
Gregory’s finding of at least peripheral neuropathy and call into question the ALJ’s
finding that Potter retains the residual functional capacity to sit for six hours of an eight
hour workday.1
The Court also finds that good cause exists for Potter’s failure to present the
1

The results do not appear to suggest a basis for Gregory’s finding of a limitation in Potter’s ability
to handle and finger.

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results of the MRI prior to the administrative hearing. See Buckner v. Apfel, 213 1006 (8th
Cir. 2000) (claimant must show, in part, good cause for not presenting new and material
evidence during administrative proceeding). The Court accepts Gregory’s explanation for
why the Tarlov cyst was not seen sooner. See Document 12, Exhibit A at 4.
For the foregoing reasons, the Court finds that the results of the MRI are “new”
and “material.” The Court also finds that good cause exists for Potter’s failure to present
the results prior to the administrative hearing. The results should be considered by the
ALJ as they may impact his view of Gregory’s findings and his assessment of Potter’s
residual functional capacity.
CONCLUSION. The Court takes no position on the correctness of the ALJ’s decision.
Instead, the case is remanded so that the ALJ can consider the results of the January 8,
2010, MRI. The ALJ shall consider the results in evaluating Gregory’s findings and, in turn,
assessing Potter’s residual functional capacity. In addition, the ALJ shall clarify the
confusion surrounding the granting of Potter’s oral motion to amend the onset date.2
The final decision is reversed, and this case is remanded. This remand is a
“sentence six” remand as that phrase is defined in 42 U.S.C. 405(g).
IT IS SO ORDERED this

24

day of May, 2011.

2

Potter initially alleged an onset date of November 1, 2002. At the outset of the administrative
hearing, Potter’s attorney asked to amend the onset date to May 23, 2006. See Transcript at 29-30. The
ALJ granted the oral motion and explained to Potter the significance of doing so. See Transcript at 30. In
his written findings and conclusions, though, the ALJ found the following: “[Potter] alleges her disability
began on November 1, 2002 ...” See Transcript at 12.

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UNITED STATES MAGISTRATE JUDGE

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