Marquis v. Social Security Administration

Filing 16

MEMORANDUM OPINION AND ORDER reversing and remanding the Commissioner's decision. 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 5/12/11. (hph)

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

PLAINTIFF

V.

CASE NO.: 4:10CV01205 BD

MICHAEL J. ASTRUE, Commissioner,
Social Security Administration

DEFENDANT

MEMORANDUM OPINION AND ORDER
Plaintiff Tim Marquis brings this action for review of the final decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying his claim
for Supplemental Security Income (“SSI”) benefits under Title XVI of the Social Security
Act (the “Act”). For reasons that follow, the decision of the Administrative Law Judge
(“ALJ”) is reversed and remanded.1
I.

Procedural History:
Mr. Marquis filed his application for SSI on July 5, 2007. He alleged disability

since June 1, 2005, due to chronic obstructive pulmonary disease, amputation of the right
thumb, fatigue, chronic pain, and obesity. (Tr. 82-86, 93, 104, 121)
After the Commissioner denied his applications at the initial and reconsideration
stages of administrative review, Mr. Marquis requested a hearing before an ALJ. The

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The parties have consented to the jurisdiction of the Magistrate Judge. (Docket
entry #5)

ALJ held a hearing on January 13, 2010, and Mr. Marquis appeared with his attorney,
Michael Sherman. (Tr. 22-34)
At the time of the hearing, Mr. Marquis was a 47-year-old with a high school
education. He was 5'7" tall and weighed approximately 245 pounds.
Mr. Marquis and vocational expert Vance Sales testified at the hearing. On March
5, 2010, the ALJ issued a decision denying Mr. Marquis benefits. (Tr. 10-17) The
Appeals Council denied Mr. Marquis’s request for review on August 30, 2010. (Tr. 1-5)
He filed the current Complaint for Review of Decision (docket entry #2) on September
10, 2010.
II.

Decision of the Administrative Law Judge:
The ALJ followed the required five-step sequence 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)
met or equaled a listed impairment; (4) if not, whether the impairment (or combination of
impairments) prevented the claimant from performing past relevant work 2 ; and (5) if so,
whether the impairment (or combination of impairments) prevented the claimant from
performing any other jobs available in significant numbers in the national economy. 20
C.F.R. § 416.920(a)-(g).

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If the claimant has sufficient residual functional capacity to perform past relevant
work, the inquiry ends and benefits are denied. 20 C.F.R. § 416.920(a)(4)(iv).
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The ALJ found that Mr. Marquis had not engaged in substantial gainful activity
since the onset of his alleged disability and that his chronic obstructive pulmonary disease
(“COPD”) and obesity were severe impairments. (Tr. 12) According to the ALJ’s
findings, Mr. Marquis did not have an impairment or combination of impairments that
met or equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
(Tr. 12)
The ALJ determined that Mr. Marquis retained the residual functional capacity
(“RFC”) to perform less than a full range of light work.3 (Tr. 12-16) At step four, the
ALJ found that Mr Marquis could perform his past relevant work as a Sales Clerk or Gate
Attendant. (Tr. 16)
III.

Analysis:
A.

Standard of Review

In reviewing the Commissioner’s decision, this Court must determine whether
there is substantial evidence in the administrative record to support the decision. Slusser
v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009), and 42 U.S.C. § 405(g). “Substantial
evidence is evidence that a reasonable mind would find adequate to support the ALJ’s
conclusion.” Nicola v. Astrue, 480 F.3d 885, 886 (8th Cir. 2007).

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Light work “involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted
may be very little, a job is in this category when it requires a good deal of walking or
standing, or when it involves sitting most of the time with some pushing and pulling of
arm or leg controls.” 20 C.F.R. § 416.967(b).
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In reviewing the record as a whole, the Court must consider evidence that detracts
from the Commissioner’s decision as well as evidence that supports the decision, but the
decision cannot be reversed, “simply because some evidence may support the opposite
conclusion.” Medhaug v. Astrue, 578 F.3d 805, 813 (8th Cir. 2009)(quoting Goff v.
Barnhart, 421 F.3d 785, 789 (8th Cir. 2005)).
B.

Plaintiff’s Arguments

Mr. Marquis claims the findings of the ALJ are not supported by substantial
evidence because: (1) the ALJ erred in rejecting a lay witness statement without
comment; (2) the ALJ erred in his RFC determination; and (3) the ALJ erred in finding
that Mr. Marquis could perform past relevant work that he never performed. (#14)
C.

Lay Witness Statement

Mr. Marquis’s stepfather, Wayne Yates, provided a third-party function report in
support of Mr. Marquis’s claims. (Tr. 130-139) Mr. Marquis argues that the ALJ erred
by rejecting the report without comment. In furtherance of his argument, Mr. Marquis
appears to equate the form filled out by his stepfather to sworn testimony provided during
an administrative hearing. (#14, p. 11-12)
Mr. Marquis’s wife, Shannon, completed Mr. Marquis’s function reports. (Tr. 96103; 140-149)4 Mr. Marquis’s and Mr. Yates’s reports provide almost identical

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Two separate, virtually identical reports appear in the record.
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information. Mr. Marquis also testified under oath at the administrative hearing. (Tr. 2434) No other witnesses appeared or testified on Mr. Marquis’s behalf.
The ALJ did not specifically address Mr. Yates’s function report in the
administrative decision. He did, however, acknowledge one of Mr. Marquis’s function
reports. (Tr. 15) The ALJ also discussed Mr. Marquis’s testimony, which largely
mirrored the function reports. (Tr. 13-14) The ALJ ultimately found Mr. Marquis’s
allegations less than fully credible. (Tr. 14) Mr. Marquis does not challenge the ALJ’s
credibility finding.
There was no error in the ALJ’s failure to specifically address Mr. Yates’s report.
Mr. Yates did not testify under oath or submit evidence not found elsewhere in the record.
The report was duplicative of the allegations addressed by the ALJ. Had the ALJ failed
to address the essential content of the report, Mr. Marquis would have a stronger
argument. That was not the case here.
D.

Residual Functional Capacity

The ALJ bears the initial responsibility for assessing a claimant’s RFC. Anderson
v. Shalala, 51 F.3d 777, 779 (8th Cir. 1995). It is the claimant’s burden, however, to
prove RFC. Vossen v. Astrue, 612 F.3d 1011, 1016 (8th Cir. 2010).
Mr. Marquis’s RFC is what he can do despite his limitations. 20 C.F.R.
§ 416.945. In determining a claimant’s RFC, the ALJ has a duty to establish, by
competent medical evidence, the physical and mental activity that a claimant can perform

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in a work setting, after giving appropriate consideration to all of his impairments.
Ostronski v. Chater, 94 F.3d 413, 418 (8th Cir. 1996). The ALJ must determine the
claimant’s RFC based on all relevant evidence, including medical records, observations
of treating physicians and others, and the claimant’s own descriptions of his limitations.
Baldwin v. Barnhart, 349 F.3d 549, 556 (8th Cir. 2003); Pearsall v. Massanari, 274 F.3d
1211, 1217 (8th Cir. 2001).
Mr. Marquis argues that the ALJ erred in his RFC determination. (#14, p. 12-13)
Specifically, he argues that the ALJ’s finding that he was limited to light work is
inconsistent with the finding that he could stand or walk no more than two hours. (Tr. 12,
16)
The ALJ found that Mr. Marquis could “lift no more than 10 pounds frequently
and 20 pounds occasionally while sitting no more than 6 hours in an 8 hour day and
standing and or walking, no more than 2 hours.” (Tr. 16) The Commissioner argues that
the ALJ’s finding is “best understood as a finding that Plaintiff could stand and walk no
more than two hours at a time.” (#15, p. 6) (emphasis added) It appears, however, that
the ALJ was discussing Mr. Marquis’s ability to stand or walk in an eight-hour day, not
his ability to stand or walk at one time, as argued by the Commissioner. This finding is
the only place in the record where the ALJ makes a standing or walking determination. In
a separate part of the administrative decision, and when questioning the vocational expert
at the hearing, the ALJ found that Mr. Marquis could perform light work. (Tr. 12, 27)

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There was no comment regarding standing or walking accompanying the light work
findings.
Mr. Marquis’s ability to stand and walk was one of the central issues in this case.
While the record does not support a finding of disability, substantial evidence does not
support the contradictory RFC findings. If the ALJ’s two hour restriction represented Mr.
Marquis’s one-time ability, he failed to discuss Mr. Marquis’s ability to stand and walk in
an eight-hour day. If the ALJ’s two-hour restriction related to an eight-hour day, the
finding is inconsistent with light work as it is generally performed. See Social Security
Ruling 83-10 (“Relatively few unskilled light jobs are performed in a seated position . . .
the full range of light work requires standing or walking, off and on, for a total of
approximately 6 hours on an 8-hour workday.”).
On remand, the ALJ must make an unambiguous finding regarding Mr. Marquis’s
ability to stand and walk in an eight-hour workday. The ALJ should then relate Mr
Marquis’s standing and walking ability to an appropriate level of work.
E.

Past Relevant Work

Mr. Marquis argues that the ALJ erred in finding that he could perform past
relevant work that he never performed. (#14, p. 14-15) The Commissioner appears to
concede the error, but argues that the vocational expert’s testimony supported a finding of
“not disabled” at step five. (#15, p. 10)

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The ALJ found at step four that Mr. Marquis could perform past relevant work as a
Sales Clerk or Gate Attendant. (Tr. 16) Mr. Marquis never worked, however, as a Gate
Attendant. (Tr. 106) Moreover, his brief employment as a Sales Clerk was not past
relevant work.
“Past relevant work” is work performed by a claimant within the past fifteen years.
20 C.F.R. § and 416.960(b). To qualify as past relevant work, earnings from the job must
rise to the level of substantial gainful activity. Id. Mr. Marquis stated that he worked as a
Stocker/Sales Clerk in 1999. (Tr. 106) During that year, Mr. Marquis earned a total of
$132. (Tr. 90) For this to qualify as substantial gainful activity, Mr. Marquis would have
to have earned at least $500.00 per month. See 20 C.F.R. § and 416.974(b) (the first half
of 1999 required average monthly earnings of more than $500 per month and from July
1999 forward, average monthly earnings of more than $700 per month). Clearly, the ALJ
erred in making a step four finding that Mr. Marquis could perform nonexistent past
relevant work.
The Commissioner appears to argue that this error was harmless, as the vocational
testimony supported a step five finding of “not disabled.” This argument could prevail if
the ALJ had related an adequate RFC finding to the vocational expert. The current RFC
determination, however, failed to establish Mr. Marquis’s standing and walking capacity.
Without this finding, the vocational testimony did not constitute substantial evidence.

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Goff, 421 F.3d at 794 (vocational testimony constitutes substantial evidence when given
in response to a hypothetical question setting forth all of the claimant’s impairments).
The current record does not contain reliable vocational evidence showing that Mr.
Marquis could perform work as a Sales Clerk or Gate Attendant. Moreover, the burden
of production shifted to the Commissioner at step five. Smith v. Barnhart, 435 F.3d 926,
930 (8th Cir. 2006) (the Commissioner bears the burden at step five of establishing that
there are a significant number of jobs available in the national economy which the
claimant can perform). Without substantial evidence supporting a step five
determination, the Commissioner failed to carry his burden.
IV.

Conclusion:
After consideration of the record as a whole, the Court finds that the decision of

the Commissioner is not supported by substantial evidence and that the case must be
remanded. Accordingly, the Commissioner’s decision is reversed and 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).
IT IS SO ORDERED this 12th day of May, 2011.

___________________________________
UNITED STATES MAGISTRATE JUDGE

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