Lee v. Social Security Administration
MEMORANDUM OPINION AND ORDER affirming the Commissioner's decision and dismissing Plaintiff's 2 Complaint with prejudice. Signed by Magistrate Judge Joe J. Volpe on 9/23/2014. (ks)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CAROLYN W. COLVIN,
Social Security Administration
MEMORANDUM OPINION AND ORDER
Plaintiff, Kelly Lee, 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
On December 6, 2010, Ms. Lee protectively filed for DIB and SSI benefits due to
fibromyalgia, arthritis in spine and right shoulder, Hepatitis C, bursitis in left hip, tendinitis in left
knee and right elbow, and scoliosis. (Tr. 158) Ms. Lee’s claims were denied initially and upon
reconsideration. At Ms. Lee’s request, an Administrative Law Judge (“ALJ”) held a hearing on
November 6, 2012, where Ms. Lee appeared with her lawyer. At the hearing, the ALJ heard
testimony from Ms. Lee and a vocational expert (“VE”). (Tr. 30-65)
The ALJ issued a decision on December 12, 2012, finding that Ms. Lee was not disabled
under the Act. (Tr. 13-24) The Appeals Council denied Mr. Lee’s request for review, making the
ALJ’s decision the Commissioner’s final decision. (Tr. 1-4)
Ms. Lee, who was forty-five years old at the time of the hearing, has a high school education
and past relevant work as a terrain forklift operator. (Tr. 61, 153)
DECISION OF THE ADMINISTRATIVE LAW JUDGE1
The ALJ found that Ms. Lee had not engaged in substantial gainful activity since October 27,
2010 and she had the following severe impairments: asthma (mild), Hepatitis C (stable), mild
scoliosis, tendinitis, and fibromyalgia. (Tr. 15) However, the ALJ found that Ms. Lee 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 1.2 (Tr. 16)
According to the ALJ, Ms. Lee has the residual functional capacity (“RFC”) to perform light,
unskilled work where interpersonal contact is incidental to the work performed, the complexity of
tasks is learned and performed by rote, involves few variables, requires little independent judgment,
and the supervision is simple, direct, and concrete. Additionally, she cannot crouch or be around
temperature extremes, humidity/wetness, fumes, odors, dusts, gases, poor ventilation, unprotected
heights, or moving machinery. (Tr. 16) The VE testified that jobs available with these limitations
were office helper and cashier II. (Tr. 63) Accordingly, the ALJ determined that Ms. Lee could
perform a significant number of jobs existing in the national economy, and found that she was not
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) 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; 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) and 404.1520(a)-(g).
420 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925, and 416.926.
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.3 Substantial evidence is “less
than a preponderance, but sufficient for reasonable minds to find it adequate to support the
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.”5
Ms. Lee’s Argument for Reversal
Ms. Lee asserts that the Commissioner’s decision should be reversed because it is not
supported by substantial evidence. Specifically, Ms. Lee contends that the Commissioner (1) erred
by not including in the record evidence submitted to the Appeals Council; and (2) erred in the RFC
finding. (Doc. No. 12)
Evidence Submitted to the Appeals Council
Ms. Lee asserts this case should be remanded because the additional evidence she submitted
after the ALJ’s finding, which included an MRI and prescription from her doctor, “is nowhere to be
found within the administrative transcript.” (Id.) This issue was resolved when a supplemental
transcript, which included the missing documents, was filed on August 18, 2014.
Plaintiff also argues that the Commissioner erred by not remanding the decision based on this
Boettcher v. Astrue, 652 F.3d 860, 863 (8th Cir. 2011); 42 U.S.C. § 405(g).
Id. (citing Guilliams v. Barnhart, 393 F.3d 798, 801 (8th Cir. 2005)).
Id. (citing Pelkey v. Barnhart, 433 F.3d 575, 578 (8th Cir. 2006)).
“new” MRI and prescription evidence. The Appeals Council considered the new evidence but
concluded it was outside of the time frame of the ALJ’s decision. The Council noted that the
relevant time period closed on December 12, 2012 - the date of the ALJ’s decision - and the new
information was from February 2013. (Tr. 2.) To be considered “new,” the evidence must be
“relevant, and probative of the claimant's condition for the time period for which benefits were
denied.” Jones v. Callahan, 122 F.3d 1148, 1154 (8th Cir.1997). Although fairly close in time, the
Court cannot conclude this new evidence relates to Plaintiff’s condition on or before December 12,
2012. And, as the Commissioner points out, Plaintiff did not explain to the Appeals Council how
this evidence should relate to the period in question. So in considering the totality of the
circumstances, the Court concludes it would be unfair to reverse the ALJ’s decision based on these
new medical records obtained after his decision and without some evidence or explanation of how
the records relate to the period in question.
First, Ms. Lee contends that the ALJ “mischaracterized” the August 22, 2012, MRI. The ALJ
noted that the MRI “showed several minimal disc protrusion without nerve root involvement and
some degenerative facet disease of the lumbar spine.” (Tr. 19) Ms. Lee points out that the MRI
included other findings, but importantly, none of those findings contradict the ALJ’s summary, so
there is no error.
Second, Ms. Lee argues that the ALJ “omitted any discussion of [her] prescribed
medications” and failed to consider the side effects of the medications. Contrary to Ms. Lee’s
argument, the ALJ’s specifically mentioned that she has “tried multiple medications for pain, and
currently uses a pain patch . . . takes Trazadone . . . hot baths and BC Powder.” (Tr. 17) He also
noted that she has been “treated with various conservative measures, including various pain
medications and muscle relaxers . . . pain injections for low back pain . . . [and] medication for sleep
and anxiety . . . .” (Tr. 19) Additionally, he mentioned the alleged side effects of her medications
and considered them in the RFC when he limited Ms. Lee to unskilled work where interpersonal
contact is incidental to the work performed, the complexity of tasks is learned and performed by rote,
involves few variables, requires little independent judgment, and the supervision is simple, direct,
and concrete. He also required that she not be around unprotected heights or moving machinery.
While there may be some evidence that Mr. Lee continues to have limitations related to her
impairments, the ALJ’s finding that she could perform light work is supported by the record.
The Court is not unsympathetic to Plaintiff’s claims. She clearly suffers from some degree
of pain and limitation. But 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 on the
record as a whole which supports the decision of the ALJ.6
The Court has reviewed the entire record, including the briefs, the ALJ’s decision, the
transcript of the hearing and the medical and other evidence. There is ample evidence on the record
as a whole that "a reasonable mind might accept as adequate to support [the] conclusion" of the ALJ
in this case.7 The Commissioner's decision is not based on legal error.
THEREFORE, the Court hereby affirms the Commissioner’s decision and dismisses
Plaintiff's Complaint with prejudice.
E.g., Mapes v. Chater, 82 F.3d 259, 262 (8th Cir. 1996); Pratt v. Sullivan, 956 F.2d 830, 833
(8th Cir. 1992).
Richardson v. Perales, 402 U.S. at 401; see also Reutter ex rel. Reutter v. Barnhart, 372
F.3d 946, 950 (8th Cir. 2004).
IT IS SO ORDERED this 23rd day of September, 2014.
JOE J. VOLPE
UNITED STATES MAGISTRATE JUDGE
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