Ethridge v. Social Security Administration

Filing 14

FINDINGS AND RECOMMENDATION recommending that the decision of the Commissioner be reversed and remanded for further proceedings consistent with this Recommendation. Objections due within 14 days of this Recommendation. Signed by Magistrate Judge Patricia S. Harris on 7/25/2018. (ljb)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
LITTLE ROCK DIVISION
REBECCA ETHRIDGE

PLAINTIFF

v.

No. 4:17-CV-00565-JLH-PSH

NANCY A. BERRYHILL,
Deputy Commissioner for Operations,
performing the duties and functions
not reserved to the Commissioner of
Social Security

DEFENDANT

FINDINGS AND RECOMMENDATION
INSTRUCTIONS
The following Findings and Recommendation (“Recommendation”) has been
sent to United States District Judge J. Leon Holmes. You may file written objections to
all or part of this Recommendation. If you do so, those objections must: (1) specifically
explain the factual and/or legal basis for your objection; and (2) be received by the Clerk
of this Court within fourteen (14) days of this Recommendation. By not objecting, you
may waive the right to appeal questions of fact.
DISPOSITION
Rebecca Ethridge (“Ethridge”) applied for social security disability benefits with
an alleged disability onset date of May 2, 2013. (R. at 105). After a hearing, the
administrative law judge (ALJ) denied her application. (R. at 29). The Appeals Council
denied Ethridge’s request for review. (R. at 1). The ALJ’s decision now stands as the
Commissioner’s final decision, and Ethridge has requested judicial review.
For the reasons stated below, the Court recommends reversing and remanding
the Commissioner’s decision.
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I.

The Commissioner’s Decision
The ALJ found that Ethridge had the severe impairment of fibromyalgia. (R. at

21). The ALJ found that Ethridge had the residual functional capacity (RFC) to perform
sedentary work except that she could lift and carry up to ten pounds occasionally; sit a
total of six hours in an eight-hour workday; stand and walk a total of two hours in an
eight-hour workday; occasionally stoop, crouch, bend, kneel, crawl, and balance; would
require an option to stand after sitting more than one hour, which would last no more
than ten minutes, be performed in the immediate workplace area, and would not
interrupt to the work process; and could understand, remember and carry out complex
instructions and respond to changes in the workplace. (R. at 23). The ALJ took
testimony from a vocational expert, William Elmore (Elmore”), that Ethridge could
perform her past relevant work as a corporate recruiter/trainer. (R. at 29). Elmore
explicitly described Ethridge’s past work as a skilled job requiring the worker to
remember and understand complex work instructions. Therefore, the ALJ held that
Ethridge was not disabled. (R. at 29).
II.

Summary of Medical Evidence During the Relevant Period
Ethridge first presented to Dr. Byron Curtner (“Curtner”) in October 2012,

several months prior to the alleged onset date of May 2, 2103. She described a history of
fibromyalgia. During a November 14, 2013 visit with Dr. Curtner, Ethridge was taking
tramadol, Ambien, and skelaxin, as well as Motrin. (R. at 416). She said she still hurt but
was getting by okay. (R. at 416). On January 16, 2014, she was “getting by ok” with her
fibromyalgia and was taking tramadol three times a day and Ambien nightly. (R. at 526).
She visited Curtner for follow-up on April 3, 2014, where her earlier diagnosis of

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fibromyalgia was noted. (R. at 523). Curtner encouraged exercise for the fibromyalgia.
(R. at 524).
Nicolas Rios, Psy. D., (“Rios”), performed a consultative mental examination on
May 14, 2014. (R. at 443). He diagnosed depressive disorder, NOS and rule-out panic
disorder. (R. at 445). He assessed Ethridge’s Global Assessment of Functioning (GAF)
score as 51–60. (R. at 445). Rios observed Ethridge to have average intellectual abilities,
reasoning skills, and general fund of information, but that her “attention and recall skills
seemed low average.” (R. At 444). Rios also found her impairments interfered at least
mildly with her day-to-day adaptive functioning, she had mild difficulties interacting
and communicating in a socially acceptable manner, she might have mild difficulties
coping with the typical cognitive demands of basic work tasks, she had lower than
average attention, and was mildly to moderately limited in her ability to complete workrelated tasks in an acceptable timeframe. (R. at 445-6). Rios specifically cited Ethridge’s
“brain fog”1 as contributing to her ability to recall and maintain attention. (R. at 446).
According to a 2014 medical source statement executed by Curtner, Ethridge had
severe symptoms of fibromyalgia, with eighteen positive tender points and constant
pain. (R. at 447–48). He further opined that Ethridge would miss several days per week
of work due to pain, that she could not walk a city block without rest or severe pain, that
she could sit for thirty minutes and stand for ten to fifteen minutes at a time for a total
of less than two hours in an eight hour work day, and that she would need to shift
positions every fifteen minutes for ten to fifteen minutes at a time. (R. at 449–50). He
also indicated that she should not lift even weights of less than ten pounds; she should

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Ethridge testified to “brain fog” secondary to her pain from fibromyalgia.  (R. at 63).
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never stoop, bend, crouch, crawl, kneel, climb ladders, climb stairs, look down, turn her
head left or right, look up, hold her head in a static position, handle, finger, reach, or
reach overhead. (R. at 452). His opinion further states that she has difficulty with
memory, adjusting to work changes, distractibility, and other mental impairments as a
result of her fibromyalgia and that she would be off task 25% of the time and could not
tolerate even “low stress” work. (R. at 452–53).
III.

Discussion
The Court reviews to determine whether substantial evidence on the record as a

whole exists to support the ALJ’s denial of benefits. Long v. Chater, 108 F.3d 185, 187
(8th Cir. 1997). “Substantial evidence” exists where a reasonable mind would find the
evidence adequate to support the ALJ’s decision. Slusser v. Astrue, 557 F.3d 923, 925
(8th Cir. 2009). The Court will not reverse merely because substantial evidence also
supports a contrary conclusion. Long, 108 F.3d at 187.
Ethridge argues that the ALJ erred in discrediting the opinion of Dr. Curtner,
discrediting the mental RFC assessment of consultative examiners and the State Agency
psychologists, and erred in his questions to the VE.
Ethridge was denied benefits under a prior application where her RFC was
established. (R. at 84–92). If that RFC were in place, Ethridge would be unable to
perform her past relevant work according to Elmore’s testimony. (R. at 76–77). The
undersigned therefore ordered additional briefing concerning the application of the
collateral estoppel doctrine to the facts of this case, and Ethridge argues that collateral
estoppel should apply and that the ALJ was estopped from finding a new RFC.
After considering the arguments of the parties, the undersigned concludes that
the doctrine of collateral estoppel does not apply in the present case. See Hardy v.
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Chater, 64 F.3d 405 (8th Cir. 1995). However, the undersigned also concludes that the
ALJ’s current RFC assessment does not comport with the evidence or the ALJ’s stated
weighing of the evidence. The undersigned therefore deems it appropriate that this case
be reversed and remanded.
Ethridge argues that the ALJ erred in assessing her RFC and that the MedicalVocational Guidelines, Rule 201.10 dictate a finding of disability. 20 C.F.R. pt. 404,
subpt. P, App. 2. The critical factor is whether Ethridge can follow complex instructions
or only detailed instructions. Elmore testified that a limitation to detailed instructions
would preclude Ethridge’s past relevant work, but that a limitation to complex
instructions would allow her past relevant work. (R. at 77–78). The pertinent question
then is whether there is substantial evidence that Ethridge can follow complex work
instructions, as determined by the ALJ. In short, the answer is “no.”
Much of the medical evidence of record focuses on Ethridge’s fibromyalgia and
related issues. However, the evidence regarding mental impairments is consistent and
uncontradicted, and there is no basis for the ALJ’s conclusion that Ethridge is capable of
following complex work instructions. Ethridge, who dropped out of school in the tenth
grade, testified to being unable to think clearly on her bad days. (R. at 64, 444).
Curtner, her treating physician, opined that Ethridge struggled with memory issues,
adjustments to work changes, and being distracted. Rios, who performed a consultative
mental evaluation, cited attention and recall problems. Nonexamining state agency
physicians found Ethridge capable of unskilled work, and specifically found she would
have moderate difficulty understanding and remembering detailed work instructions.
(R. at 131). Further, state agency Doctor Janet Cathey (“Cathey”) explicitly found
Ethridge could not perform her past, skilled work. (R. at 134). The ALJ discounted the
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above cited evidence of record, citing a single treating note from 2016 where Ethridge
denied depressive symptoms, and citing the ALJ’s own finding that Ethridge did not
have a severe mental impairment. These reasons do not squarely address the key issue
– is Ethridge capable of understanding and remembering complex work instructions?
Complex instructions require more of the employee than do detailed instructions. Since
all of the evidence of record casts doubt on Ethridge’s ability to deal with detailed
instructions, the Court finds the ALJ’s RFC assessment finding Ethridge can follow
complex instructions is not supported by substantial evidence.
IV.

Recommended Disposition
The ALJ’s mental RFC assessment is not supported by the evidence of record.

The ALJ’s decision is therefore not supported by substantial evidence on the record as a
whole. For these reasons, the Court recommends REVERSING and REMANDING the
decision of the Commissioner for further proceedings consistent with this
Recommendation.
It is so ordered this 25th day of July, 2018.

________________________________
PATRICIA S. HARRIS
UNITED STATES MAGISTRATE JUDGE

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