Green v. Social Security Administration

Filing 14

RECOMMENDED DISPOSITION recommending that the decision of the Commissioner be reversed and remanded with instructions to develop the record as necessary by recontacting treating sources or ordering consultative examinations. Objections due within 14 days of this Recommendation. Signed by Magistrate Judge Jerome T. Kearney on 9/18/2018. (kdr)

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
LITTLE ROCK DIVISION
STEPHANIE K. GREEN
v.

PLAINTIFF
No. 4:17-CV-00637-BRW-JTK

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

DEFENDANT

RECOMMENDED DISPOSITION
INSTRUCTIONS
The following Recommended Disposition (“Recommendation”) has been sent to
United States District Judge Billy Roy Wilson. 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.
REASONING FOR RECOMMENDED DISPOSITION
Stephanie Green applied for social security disability benefits with an alleged
onset date of June 27, 2013. (R. at 339). After a hearing, the administrative law judge
(ALJ) denied her application. (R. at 291–92). The Appeals Council denied her request
for review. (R. at 1). The ALJ’s decision now stands as the Commissioner’s final decision,
and Green has requested judicial review.
For the reasons stated below, the magistrate judge recommends reversing and
remanding the Commissioner’s decision.
I.

The Commissioner’s Decision

The ALJ found that Green had the severe impairments of hypertension,
hypothyroidism, degenerative disk disease of the cervical spine, headaches, urinary
incontinence, and depression. (R. at 279). The ALJ then found that Green’s impairments
left him with the residual functional capacity (RFC) to perform light work except that
she was limited to the performance of work with simple tasks and simple instructions.
(R. at 282). The RFC precluded Green’s past relevant work. (R. at 290). However, a
vocational expert (VE) testified that a person with Green’s RFC could perform jobs such
as office helper, merchandise marker, or small products assembler. (R. at 291). The ALJ
therefore held that Green was not disabled. (R. at 291).
II.

Discussion
The Court is to affirm the ALJ’s decision if it is not based on legal error and is

supported by “substantial evidence in the record as a whole,” which is more than a
scintilla but less than a preponderance. Long v. Chater, 108 F.3d 185, 187 (8th Cir.
1997). The Court considers evidence supporting and evidence detracting from the
Commissioner’s decision, but it will not reverse simply because substantial evidence
could support a different outcome. Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000).
Green argues that the ALJ failed to fully and fairly develop the record, failed to
include limitations related to impairments identified as severe, failed to properly
consider her hearing loss, failed to grant her requests for consultative examinations,
failed to properly consider her credibility, and erred in determining her RFC. As the
undersigned finds that the ALJ failed to fully and fairly develop the record, it is not
necessary to reach Green’s other points.
An ALJ has a duty to ensure that the record contains evidence from a treating or
examining physician addressing the particular impairments at issue. Strongson v.

Barnhart, 361 F.3d 1066, 1071-72 (8th Cir. 2004). It is not permissible for the ALJ to
“play doctor,” substituting his own medical judgment for that of a physician. Pate-Fires
v. Astrue, 564 F.3d 935, 946–47 (8th Cir. 2009).
Only one treating physician—Allan Kirkland, M.D.—provided an opinion
concerning Green’s ability to function in the workplace, and the ALJ gave little weight to
his opinion. (R. at 288–89). There were no consultative examinations or opinions from
other treating physicians as to Green’s limitations. Without Dr. Kirkland’s opinion, the
ALJ only had the opinions of the non-examining State Agency consultants and his own
inferences to rely upon. The ALJ gave great weight to the opinions of the State Agency
consultants, but such opinions from non-examining sources are not entitled to such
weight. Singh v. Apfel, 222 F.3d 448, 452 (8th Cir. 2000). The ALJ did not fulfill his
duty to properly develop the record with evidence from a treating or examining
physician.
Furthermore, Green made specifically requested that the ALJ order consultative
examinations or contact treating sources for their opinions concerning her ability to
work. (R. at 585, 589). The ALJ relied on his own interpretation of treatment notes in
order to arrive at Green’s RFC, and this is not permissible.
III.

Recommended Disposition
The ALJ failed to fully and fairly develop the record. The ALJ’s decision is

therefore not supported by substantial evidence on the record as a whole. For these
reasons, the undersigned magistrate judge recommends REVERSING and
REMANDING the decision of the Commissioner with instructions to develop the record
as necessary by recontacting treating sources or ordering consultative examinations.

Dated this 18th day of September, 2018.

________________________________
JEROME T. KEARNEY
UNITED STATES MAGISTRATE JUDGE